Court of Appeal, Second Appellate District Court of Appeal, Second Appellate District

Daniel P. Potter Daniel P. Potter

Electronically RECEIVED on 8/13/2021 at 2:57:47 PM Electronically FILED on 8/13/2021 by Karla Dominguez, Deputy Clerk

Case No. B310559

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

IN AND FOR THE SECOND APPELLATE DISTRICT

CHRISSIE CARNELL BIXLER, CEDRIC BIXLER-ZAVALA, JANE

DOE #1, and JANE DOE #2,
Plaintiffs and Petitioners,

v.

SUPERIOR COURT FOR THE STATE OF CALIFORNIA,

COUNTY OF LOS ANGELES,

Respondent.

CHURCH OF SCIENTOLOGY INTERNATIONAL, RELIGIOUS

TECHNOLOGY CENTER, AND CHURCH OF SCIENTOLOGY
CELEBRITY CENTRE INTERNATIONAL

Defendants and Real Parties in Interest.

PLAINTIFFS/PETITIONERS’ REPLY TO RETURN TO ORDER TO

SHOW CAUSE ON PETITION FOR WRIT OF MANDATE

Los Angeles County Superior Court Case No. 19STCV29458

Honorable Steven J. Kleifield
Department No. 57

Robert W. Thompson (SBN: 250038)

[email protected]
Thompson Law Offices, P.C.
700 Airport Boulevard, Suite 160
Burlingame, CA 94010
Telephone: (650) 513-6111
Facsimile: (650) 513-6071

Attorney for Plaintiffs/Petitioners

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 CERTIFICATE OF INTERESTED ENTITIES

(Cal. Rules of Court, Rules 8.208, 8488)

Petitioners Chrissie Carnell Bixler, Cedric Bixler-Zavala, Jane Doe

#1, and Jane Doe #2 know of no other entity or person that must be listed as
an interested party under Rules 8.208 and 8.488.

Date: August 13, 2021 By ________________________

Robert W. Thompson
Attorney for Petitioners

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 TABLE OF CONTENTS

I. INTRODUCTION 6
II. FACTUAL AND PROCEDURAL BACKGROUND 7
A. Petitioners were sexually abused by Defendant Masterson. 7
B. Petitioners were harassed by Defendants after reporting their abuse to
authorities outside of the Church of Scientology. 8
C. When Petitioners filed suit, defendants moved to compel “Religious
Arbitration” based on the agreements that required all arbitrators to be
“Scientologists in good standing.”. 9
D. Defendant Masterson was charged with rape and ordered by a Criminal
Protective Order to have no contact with Petitioners directly or through a third
party. 10
E. Defendant Masterson objected to any discovery propounded by Jane Doe #1
and Defendants refused to agree to a stay. 10
F. Despite the constitutional questions at issue, the trial court granted the
Motions to Compel Religious arbitration. 11

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 TABLE OF AUTHORITIES

CASES
Abbo v. Briski, (Fla. 4th D. Ct. App. Sept. 27,1995) 660 So. 2d1157, 1159-61.. 22,
25, 26
Abbo v. Briskin, (Fla. 4th DCA 1995) 660 So. 2d 1157 ....................................... 25
Abd Alla v. Mourssi, (Minn. Ct. App. 2004) 680 N.W.2d 569, 574 ..................... 14
Aflalo v. Aflalo, (N.J. Super. Ct. Ch. Div. Feb. 29, 1996) 685 A.2d 523, 541 ..... 21
Barrows v. Jackson, (1953) 346 U.S. 249, 254, 258 ............................................ 19
Bayside Timber Co. v. Board of Supervisors, 20 Cal. App. 3d 1, 4-5 (1971). ..... 29
Bowen v. Roy, (1986) 476 U.S. 693, 701-02......................................................... 24
Burton v. Wilmington, (1961) 365 U.S. 715, 722 ................................................. 18
Caviness v. Horizon Cmty. Learning Ctr., Inc., (9th Cir. 2010) 590 F.3d 806, 812
........................................................................................................................... 18
Davis v. Kozak, (2020) 2020 WL 5000760..................................................... 13, 25
Dial 800 v. Fesbinder ........................................................................................... 14
Dial 800, 12 Cal. Rptr. 3d 711, 724 ...................................................................... 22
Easterly v. Heritage Christian Schs., Inc., (S.D. Ind. Aug. 26, 2009) 2009 WL
2750099............................................................................................................. 15
Elmora Hebrew Center, Inc. v. Fishman .............................................................. 17
Elmora Hebrew Ctr., Inc. v. Fishman, (N.J. 1991) 593 A.2d 725, 731-32 ..... 15, 17
Employment Div. v. Smith, (1990) 494 U.S. 872, 877 .......................................... 24
Encore Productions, Inc. v. Promise Keepers ...................................................... 17
Franklin v. White Egret Condo., Inc., (Fla. 4th DCA 1977) 358 So. 2d 1084,
1088-89 ............................................................................................................. 19
Garcia v. Mother Church of Scientology Flag Serv. Org., Inc.et al., (M.D. Fla.
Sept. 20, 2019) No.8:13-cv-220-T-27TBM, 2015 WL10844160 ..................... 22
Gathright v. City of Portland, (9th Cir.2006) 439 F.3d 573, 576 n. 2 .................. 19
Gatton v. T-Mobile (2007) 152 Cal.App.4th 571, 579.......................................... 13
Gen. Conference of Evangelical Methodist Church v. Faith Evangelical Methodist
Church, (Iowa Ct. App. 2011) 809 N.W.2d 117, 124 ....................................... 15
Gen. Conference of Evangelical Methodist Church, 809 N.W.2d 117................. 15
Hale v. Morgan, 22 Cal. 3d 388, 394 (1978) ........................................................ 29
Higher Ground Worship Center, Inc. v. Arks, Inc., (D. Idaho 2011) No. 1:11-cv-
00077, 2011 WL 4738651 ................................................................................ 17
Hurd v. Hodge, (1948) U.S. 24, 31–36 ................................................................. 19
Ismailoff, (N.Y. Sur. Ct. Feb. 1, 2007) No. 342207, 2007 WL431024 ................ 22
Jabri Abri v. Qaddura, (Tex. App. 2003) 108 S.W.3d 404, 412-14 ..................... 14
Jenkins v. Trinity Evangelical Lutheran Church, (2005) 356 Ill. App. 3d 504 .... 15
Jones v. Wolf held that generally applicable legal issues can be reviewed on
“purely secular terms.” (1979) 443 U.S. 595, 604 ............................................ 25
Lizarraga v. City of Nogales, No. CV06474, 2007 WL 4218972 ........................ 30
Lopez v. McMahon, 205 Cal. App. 3d 1510, 1520-21 (1988) .............................. 28
Lugar v. Edmonson Oil Company, Inc., (1982) 457 U.S. 922, 937 ...................... 18
Marriage of Weiss, (Cal. Ct. App. 1996) 49 Cal. Rptr. 2d 339 ............................ 25
Matter of Berger, (N.Y. Sup. Ct. April 6, 1981) 81 A.D.2d 584 .......................... 21

4
Matter of Goldmar Hotel Corp., (N.Y. Sup. Ct. May 25,1954) 283 A.D. 935 .... 21
Matter of Jacobovitz, (N.Y. Sur. Ct. Dec. 9, 1968) 58 Misc.2d 330 .................... 21
Matter of Teitelbaum, 662 (N.Y. Sup. 2005) 10 Misc.3d 659 ............................. 21
Matter of Wertheim & Co. v. Halpert, (1979) 48 NY2d 681, 683........................ 21
Meshel v. Ohev Sholom Talmud Torah, (D.C. 2005) 869 A.2d 343, 346............ 15
Naoko Ohno v. Yuko Yasuma ................................................................................ 18
Nestel v. Nestel, (N.Y. Super. Ct. Mar. 6,1972) 38 A.D.2d 942 ........................... 21
New York Times Co. v. Sullivan ...................................................................... 19, 20
Ortiz v. Hobby Lobby Stores, Inc .......................................................................... 14
Our Lady of Guadalupe Sch. v. Morrissey-Berru, (2020) 140 S. Ct. 2049, 2060 24
Roman Catholic Diocese of Brooklyn v. Cuomo (2020) 141 S. Ct. 63, 67-68 ......17
Shelley v. Kraemer, (1948) 334 U.S. 1, 14 ........................................................... 19
Shelley v. Kraemer, (1948) 334 U.S. 1, 20, 68 ............................................... 19, 20
Sieger v. Sieger, (Sup. Ct., June 29, 2005) 2005 WL2031746 ............................ 21
Spivey v. Teen Challenge of Fla., Inc., (Fla. Dist. Ct. App. 2013) 122 So.3d 986
..................................................................................................................... 16, 20
State v. Deal, 740 N.W.2d 755 (Minn. 2007) ....................................................... 30
Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1522 ................................. 13
Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, 1099............................... 13
Weiss, 49 Cal. Rptr. 2d 339 at 347........................................................................ 25
West Virginia State Board of Education v. Barnette, (1943) 319 U.S. 624, 642.. 13
Wisconsin v. Yoder, (1972) 406 U.S. 205, 215 ..................................................... 26
Wisconsin v. Yoder, (1972) 406 U.S. 205, 215-16................................................ 24
Zummo v. Zummo, (Pa. Super. Ct. 1990) 574 A.2d 1130 ............................... 25, 26

STATUTES
CAL CONST. ART. I § 28 section (b)(5) ........................................................ 33

OTHER AUTHORITIES
Catholic Bishop of Spokane, (Bankr. E.D. Wash. 2005) 329 B.R. 304, 315
................................................................................................................. 29
Marriage of Weiss, 49 Cal. Rptr. 2d 339, 341, 347 (Cal. Ct. App. 1996) ... 24

Marriage of Weiss (Cal. Ct. App. 1996) 49 Cal. Rptr. 2d 339, 347 ............ 28
Rex Ahdar, Regulating Religious Coercion, 8 STAN. J. CIV. RTS. & CIV.
LIBERTIES 215, 220-24 (2012) ................................................................. 27
Roman Catholic Archbishop (Bankr. D.Or. 2005) 335 B.R. 842 ............... 30

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 I. INTRODUCTION

Petitioners in this case are victims of violent sexual assault and rape
by Defendant Daniel Masterson (with the exception of Petitioner Bixler-
Zavala who is the husband of Petitioner Carnell-Bixler) on various
occasions. Petitioners Carnell-Bixler, Jane Doe #1, and Jane Doe #2, are
former Scientologists; Petitioner Bixler-Zavala has never been a member of
the Church of Scientology.

After Petitioners reported the sexual assaults to legal authorities in

violation of Church dogma, all the Petitioners relevant to this Petition were
all deemed “Suppressive Persons”—individuals who Defendants declare to
be an enemy of Scientology. (See 1 EP 14). Scientology doctrine holds
that reporting any crime by any member of the Church to police is
considered a “high crime” in the faith and subject to punishment. (See 1
EP 13) (“Police and courts offer an open-armed opportunity to the vicious
and corrupt to establish themselves in a position of safety while satisfying
their strange appetites or perverted viciousness toward their fellow man.”).
As a result of reporting and/or speaking out about the rapes, Petitioners
were relentlessly terrorized, stalked, and harassed as part of a “Fair Game
campaign” designed to “shudder [them] into silence,” “obliterate
[them],”and “ruin [them] utterly.” (See 1 EP 15). Petitioners alleged these
acts occurred both while they were in the religion and after they exited the
religion. Defendants hired private investigators to surveil, follow,
videorecord, and photograph Petitioners. Petitioners’ phones were illegally
tapped, their emails and bank accounts hacked, home security systems
breached, and property destroyed. As a result, Petitioners live in constant
fear for their safety and that of their family members.

When Petitioners sued Defendants for stalking, physical invasion of

privacy, constructive invasion of privacy, intentional infliction of emotional

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distress, and loss of consortium, all Defendants except Defendant
Masterson moved to compel arbitration pursuant to their so-called
“arbitration agreements,” which are in reality unenforceable “religious
services agreements” that four Petitioners (Carnell-Bixler, Bixler-Zavala,
Jane Doe #1, and Jane Doe #2) were made to sign when they were
members and/or participated in religious services. (1 EP 113-16; 118-
21;123-26; 128-31; 133-36; 138-41; 143-48; 150-55; 157-162; 164-69;
171-76; 178-83; 185-90). The courts in this case are being asked to enforce
religious retribution against individuals who were raped and who have
rejected the faith.

Despite this, and in violation of Petitioners’ First Amendment and

California constitutional right to freedom of religion and their California
constitutional rights under Marsy’s Law which guaranty specific rights to
crime victims like Petitioners, the trial court ordered that they submit to
“Religious Services Arbitration,” which is controlled by the Church and is
being wielded as a sword to re-traumatize these rape victims.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Petitioners were sexually abused by Defendant Masterson.

This matter arises from the stalking, harassment, and intimidation of

Petitioners Chrissie Carnell-Bixler, Cedric Bixler-Zavala, Jane Doe #1, and
Jane Doe #2 by defendants in retaliation for petitioners’ reporting crimes
committed by Defendant Daniel Masterson (“Masterson”). As alleged in
the Complaint, each Petitioner was sexually assaulted and abused by
Masterson (with the exception of Petitioner Bixler-Zavala who is the
husband of Petitioner Carnell-Bixler).
Petitioner Chrissie Carnell-Bixler became involved in the Church of
Scientology in 1997 at Defendant Masterson’s direction. (1 EP 21).

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During their relationship, Defendant Masterson “committed multiple acts of
sexual violence and assault against” her, even drugging her wine and
forcing anal sex on her. (1 EP 22).
Petitioner Jane Doe #1 was repeatedly sexually assaulted and anally
raped by Defendant Masterson at his home in April 2003. (1 EP 34-35).
Petitioner Jane Doe #2 was sexually assaulted by Defendant Masterson at
his home. (1 EP 51).
B. Petitioners were harassed by Defendants after reporting their
abuse to authorities outside of the Church of Scientology.

Petitioner Chrissie Carnell-Bixler reported the sexual assault against

her in December 2016. (1 EP 26). Petitioner Jane Doe #1 reported her
abuse to the Los Angeles Police Department on June 6, 2004. (1 EP 39).
Petitioner Jane Doe #2 disclosed her abuse to the Los Angeles Police
Department in 2017. (1 EP 52).
As a result of reporting and/or speaking out about the abuse each
was relentlessly terrorized, stalked and harassed in an effort to intimidate
and silence them. (See 1 EP 21- 33 (Bixler, Bixler-Zavala), 1 EP 33-45
(Jane Doe #1), 1 EP 50-54 (Jane Doe #2), 1 EP 46-49 (Bobette Riales)).
Petitioners Chrissie Carnell-Bixler and Cedric Bixler observed defendants
loitering outsider their home, as well as enduring repeated break-ins of her
car, hacking of her home security system and social media accounts,
unwelcome filming of their movements, being run off the road in her
vehicle, and the unexplained death of her dog, to name a few occurrences.
(1 EP 27-28; 31).
Since reporting her abuse, Petitioner Jane Doe #1 has received
hundreds of unwelcome calls and texts, she has been followed and
surveilled, threatened with her life, and she has had her trash taken. (1 EP
140-42; 44).

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 Since reporting her abuse, Petitioner Jane Doe #2 has received many
unwanted phone calls and texts, her car has been vandalized, she has been
harassed on social media, and threatened multiple times. (1 EP 52-53).
C. When Petitioners filed suit, defendants moved to compel
“Religious Arbitration” based on the agreements that required
all arbitrators to be “Scientologists in good standing.”.

On January 6, 2020, Defendants Church of Scientology International

(“CSI”), and Celebrity Center International (“CCI”) filed Motions to
Compel Religious Arbitration as to Petitioners and rape victims Chrissie
Carnell-Bixler, Cedric Bixler, Jane Doe #1 and Jane Doe #2. (See 1 EP 64
(Jane Doe #2); 2 EP 517 (Jane Doe #1, Bixler, Bixler-Zavala)). On April 1,
2020, Defendant Religious Technology Center (“RTC”) also filed Motions
to Compel Religious Arbitration as to Petitioners and rape victims Chrissie
Carnell-Bixler, Cedric Bixler, Jane Doe #1 and Jane Doe #2. (See 4 EP
968 (Jane Doe #2); 4 EP 999 (Jane Doe #1, Bixler, Bixler-Zavala)). It is
not in dispute that said religious services arbitration must be conducted and
adjudged by Scientologists “in good standing” (1 EP 189) and is controlled
by Defendants (who are agents of rape Defendant Daniel Masterson) (11
EP 1250; 1 EP 9; 5 EP 1220, 1290, 1314), individuals who are mandated to
treat Petitioners as enemies of Scientology. It is also not in dispute that
Defendant Masterson is a staff member of the Scientology defendants and
any and all persons who will participate and/or arbitrate this matter are
Masterson’s agents (and vice versa). (11 EP 1250; 1 EP 9; 5 EP 1220,
1290).

///

///

///

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 D. Defendant Masterson was charged with rape and ordered by a
Criminal Protective Order to have no contact with Petitioners
directly or through a third party.

After the filing of this lawsuit, on or about June 16, 2020 Masterson
was charged by the Los Angeles District Attorney with three counts of
rape, based on police reports filed by the Petitioners in this lawsuit. (4 EP
1028). The criminal investigation of Masterson, initiated by the Petitioners
in this lawsuit and referenced multiple times in the FAC, has become an
active criminal case. Masterson is facing multiple felony charges for
alleged conduct which forms the factual nucleus of Petitioners’ civil claims
against him.

In order to protect the Petitioners from any additional harm or

harassment by Masterson or his agents (including the Scientology
defendants in this case), on September 18, 2020, Honorable Miguel
Espinoza, the judge overseeing the criminal case against Masterson, entered
a Criminal Protective Order that precludes him from having any contact
with Petitioners Chrissie Carnell-Bixler, Jane Doe #1 and Jane Doe #2
either directly or through a third party. (4 EP 1070). If the religious
services arbitration were to proceed while the criminal matter and Judge
Espinoza’s Order are still pending, it would violate both that order, and
Petitioners’ state constitutional rights as crime victims under Marsy’s law.

E. Defendant Masterson objected to any discovery propounded by

Jane Doe #1 and Defendants refused to agree to a stay.

Additionally, on or about September 4, 2020, Jane Doe #1

propounded discovery on Masterson, consisting of a request to take
Masterson’s deposition, a Request for Production of Documents, and
Special Interrogatories. Masterson objected to each and every discovery

10
request, citing in part his United States Constitutional rights against self-
incrimination. (4 EP 1032-70). Masterson’s counsel contacted counsel for
Petitioners asking for a stipulation to a stay of discovery pending the
resolution of the criminal case. (5 EP 1198-99). Petitioners would agree to
a stay but only as to all Petitioners and defendants because of the prejudice
to Petitioners in having to proceed to arbitrate their cases without the
participation of defendant Masterson. Counsel for defendants CSI, RTC,
and CCI have refused to agree to a stay of any fashion.

On October 8, 2020, Masterson filed his Motion to Stay Discovery,

or Alternatively, For A Protective Order. (5 EP 1200-13).

F. Despite the constitutional questions at issue, the trial court

granted the Motions to Compel Religious arbitration.

On December 31, 2020, the trial court returned an Order granting the
Motion to Compel Religious services arbitration of defendants’ CSI, CCI,
and RTC as to the claims of Petitioners Chrissie Carnell-Bixler, Cedric
Bixler, Jane Doe #1 and Jane Doe #2. (6 EP 1496-1510). The case of
Plaintiff Marie Bobette Riales was unaffected by this Order. Further,
whether the claims of all Petitioners as to defendant Masterson were
affected by this Order is unclear given that the trial court stated Masterson
may “participate” in religious services arbitration although Masterson never
affirmatively moved to enforce arbitration and no party fully and fairly
briefed the issue before the trial court. Finally, the trial court failed to state
whether the religious services arbitration was being compelled pursuant to
the Federal Arbitration Act (FAA) or the California Arbitration Act (CAA).
The trial court has not clarified its order. On March 9, 2021, the Court of
Appeal denied Petitioners’ petition for writ of mandate filed February 23,
2021.

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 On March 19, 2021, Petitioners’ filed a Petition for Review before
the Supreme Court of California. The following questions were presented:
(1) Does a rape victim and nonbeliever have the right to refuse a
“religious services arbitration” under the First Amendment where
such “arbitration” process specifies that all “arbitrators” shall be
ministers of the religion who are charged with applying that
religion’s “doctrine”?
(2) Does the First Amendment permit a court to force a rape victim who
left the faith to submit to religious services “arbitration” regarding
punishment inflicted upon the victims by the religious organization
for reporting the rape to the authorities?
(3) Are rape victims protected against being forced into a so-called
religious services arbitration with their perpetrator and his agents
during the pendency of the criminal case where: (a) the criminal
court issued a protective order against their perpetrator; and (b) the
California Constitution guarantees against the harassment of crime
victims?

On May 26, 2021, the California Supreme Court ordered that “The
petition for review is granted. The matter is transferred to the Court of
Appeal, Second Appellate District, Division Five, with directions to vacate
its order denying the petition for writ of mandate and to issue an order
directing the respondent superior court to show cause why the relief sought
in the petition should not be granted.”
The Court of Appeal ordered the trial court to show cause on
October 5, 2021, why the relief prayed for in the petition should not be
granted. The Court of Appeal ordered that the return to the order to show
cause, if any, shall be filed on or before July 9, 2021. Respondents filed
their return on that date. The Court of Appeal ordered that a reply, if any,

12
shall be filed on or before August 13, 2021. The Court of Appeal furthered
ordered that the order compelling arbitration is stayed pending resolution of
this matter or until further order of this court.
A. STANDARD OF REVIEW

Where, as here, no material facts are in dispute, courts review orders

compelling arbitration de novo. (Davis v. Kozak, (2020) 2020 WL
5000760; see also Suh v. Superior Court (2010) 181 Cal.App.4th 1504,
1522; Gatton v. T-Mobile (2007) 152 Cal.App.4th 571, 579; Szetela v.
Discover Bank (2002) 97 Cal.App.4th 1094, 1099.)

B. RESPONDENTS CITE TO CASES THAT ARE MATERIALLY

DISTINGUISHABLE FROM PETITONERS’ AND INCIDENTAL TO
THIS COURT’S RESOLUTION OF THE ISSUE PRESENTED

Contrary to Respondents’ implication, Petitioners do not argue that

enforceability of religious arbitration agreements is a novel issue before this
Court. Rather, the question presented to this Court is whether the First
Amendment permits a court to compel a non-believer into arbitration under
a religious services agreement. This case is about the fundamental right to
choose one’s own religion and religious practices without coercion from the
courts. West Virginia State Board of Education v. Barnette, (1943) 319 U.S.
624, 642 (“If there is any fixed star in our constitutional constellation, it is
that no official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion, or force citizens to confess
by word or act their faith therein.”).
Petitioners acknowledge that courts have enforced religious
arbitration agreements or confirmed awards issued by religious panels,
however Petitioners disagree that those cases involved the facts of this case.
(Respondents’ Memo in Support of Return to Order to Show Cause on
Petition for Writ of Mandate (hereinafter “Resp. Memo”), p.46, §B, ¶1).

13
Respondents do not cite to a single case that stands for the proposition that
forcing a non-believer into religious arbitration is permitted under the First
Amendment. The cases to which Respondents cite are materially
distinguishable from this case. Court. See generally, Resp. Memo §B.
Respondents only cite to two California cases in support of their
argument that courts unequivocally enforce religious arbitration agreements
or confirm awards issued by religious panels over First Amendment
objections. Resp. Memo, p.46, §B, ¶2. Respondents first cite to the California
Appellate Court decision in Dial 800 v. Fesbinder, a case where the court
enforced an arbitration award based on Jewish law where the issue in this
case---the right to choose one’s religion--was never raised. There, the parties
did not dispute religious arbitration but sought interpleader of funds in
secular court. (2004) 118 Cal. App. 4th 13, 26 (emphasis added). Respondents
also cite to Ortiz v. Hobby Lobby Stores, Inc., but in that case, as in Dial 800,
there was no discussion of religious arbitration and the court’s decision to
enforce the arbitration agreement was divorced from any First Amendment
considerations. (E.D.Cal. 2014) 52 F.Supp.3d 1070.
Respondents also point to cases from outside California to bolster
their argument, but once again there was no indication in those cases that the
parties objected to religious arbitration, or that a religious organization was
trying to co-opt the courts to wield its beliefs against someone who left the
faith. See Jabri Abri v. Qaddura, (Tex. App. 2003) 108 S.W.3d 404, 412-14
(involving disagreement over whether certain claims fell within the scope of
the agreement but where both parties favored religious arbitration); Abd Alla
v. Mourssi, (Minn. Ct. App. 2004) 680 N.W.2d 569, 574 (confirming an
arbitration award where the party seeking vacatur was unable to establish
fraud but where the parties agreed to arbitrate their differences before an
Islamic arbitration committee). Unlike the present case, nothing in those
cases indicate that a party objected to the religious arbitration, and therefore

14
the state could not coerce a party to participate in religious arbitration in
violation of their First Amendment rights.
Respondents also cite to cases that involved internal religious
disputes, and, therefore, are inapposite. Again, this case was brought by
individuals who no longer accept the faith of the defendants. This case,
therefore, involves an outside party invoking civil law against a religious
entity that harmed them. See, Gen. Conference of Evangelical Methodist
Church v. Faith Evangelical Methodist Church, (Iowa Ct. App. 2011) 809
N.W.2d 117, 124 (one church seeking to enforce arbitration agreement
against another church); Elmora Hebrew Ctr., Inc. v. Fishman, (N.J.
1991) 593 A.2d 725, 731-32 (a synagogue challenging a rabbinical court
determination regarding the contractual employment rights of a rabbi and
other members of congregation); Meshel v. Ohev Sholom Talmud
Torah, (D.C. 2005) 869 A.2d 343, 346 (internal dispute between members of
a Jewish congregation concerning the congregation's governing structure and
the ownership of its property); Jenkins v.
Trinity Evangelical Lutheran Church, (2005) 356 Ill. App. 3d 504 (enforcing
an agreement between an associate pastor with a church and the head pastor
and church to resolve disputes under church bylaws).
While Respondents cite to cases where courts enforced religious
arbitration over a party’s objection, those cases did not consider a Free
Exercise challenge. See, Easterly v. Heritage Christian Schs., Inc., (S.D. Ind.
Aug. 26, 2009) 2009 WL 2750099 at *1 (compelling arbitration under the
Rules of Christian Conciliation but holding that the party opposing
arbitration could challenge the validity of the arbitral decision on the ground
it “manifestly disregards” the law); Gen. Conference of Evangelical
Methodist Church, 809 N.W.2d 117.
Respondents cite only two cases from other jurisdictions compelling
religious arbitration over First Amendment challenges. See, Spivey v. Teen

15
Challenge of Fla., Inc., (Fla. Dist. Ct. App. 2013) 122 So.3d 986; Encore
Prods., Inc. v. Promise Keepers, (D. Col. 1999) 53 F.Supp.2d 1101. These
cases, however, are not binding on this Court, even on questions of federal
law, nor are they persuasive.
First, Respondents cite to Spivey v. Teen Challenge of Florida, Inc.,
which is not on point. Spivey involved the question of the role of an estate
representative who is overseeing an estate where the decedent had entered
into a voluntary arbitration agreement. (2013) 122 So.3d 986. The estate
representative personally objected on First Amendment grounds to the
religious arbitration, but the court held that she was obliged to step into the
decedent’s shoes for purposes of arbitration. “The question is whether
Ms. Spivey’s obligation as personal representative is to stand in [decedent’s]
shoes and comply with an arbitration agreement that no one disputes
[decedent] voluntarily entered.” Id. at 995. The Court concluded that the
plaintiff-representative could not claim the legal right for her personal
religious views to nullify and thereby supersede the religious arbitration
agreement into which the decedent and the facility voluntarily entered. Id.
Unlike in Spivey, it is Petitioners’ fundamental rights that are
presently being violated by the order compelling participation in a religious
arbitration process that would subject non-believers to the laws and religious
services of Scientology. Similarly, there was no indication in Spivey that the
decedent had abandoned his Christian faith or reversed his voluntary decision
to agreement to arbitration. In contrast, Petitioners long ago renounced their
commitments to Scientology and many of the acts underlying Petitioners’
claims occurred after their exit. Notably, the court in Spivey, while
highlighting the voluntary nature of the underlying agreement before them,
cautioned that a religious process should avoid practices that could run afoul
of the Florida Constitution’s Religious Freedom Clause, and that religious
arbitration generally may raise other public policy concerns. Id. at 993-94;

16
see also, FL CONST. ART. 1 §3 (“There shall be no law respecting the
establishment of religion or prohibiting or penalizing the free exercise
thereof. Religious freedom shall not justify practices inconsistent with
public morals, peace or safety.”) (emphasis added).
Finally, Respondents cite to Encore Productions, Inc. v. Promise
Keepers, a case involving two corporations where one corporation argued
that compelling arbitration under the Christian Conciliation Rules would
violate the Free Exercise rights of the corporation’s agents and employees.
(D. Colo. 1999) 53 F. Supp. 2d 1101, 1106, 1112. Though the court
acknowledged that “it may not be proper for a district court to refer civil
issues to a religious tribunal,” the court concluded, with little analysis, that
doing so would be proper “when the parties agree to do so.” Id. In so holding,
the court did not analyze or consider the arguments presented by Petitioners.
Specifically, the court did not consider that one has the right to choose one’s
religion, which includes the right to exit. Instead, the court relied on Elmora
Hebrew Center, Inc. v. Fishman, a case where the court referred a religious
dispute to a religious tribunal as required under the abstention doctrine.
(N.J. 1991) 593 A.2d 725, 731. Elmora is materially distinguishable from
Encore and Petitioners’ case, both of which involve(d) secular disputes. For
this reason, courts have questioned the Encore holding. See, e.g., Higher
Ground Worship Center, Inc. v. Arks, Inc., (D. Idaho 2011) No. 1:11-cv-
00077, 2011 WL 4738651, at *4 n.4 (questioning in dicta
whether Encore was correctly decided).
Respondents cite no cases that directly address the First Amendment
right at issue here: the right of Petitioners to reject a religion and its practices,
without judicial coercion.
///
///
///

17
C. THE FIRST AMENDMENT FREE EXERCISE CLAUSE
PROTECTS PETITIONERS’ ABSOLUTE RIGHT TO CHOOSE
ONE’S RELIGION, INCLUDING THE RIGHTS TO REJECT AND
EXIT A RELIGION, WITHOUT GOVERNMENT COERCION

Petitioners maintain that the trial court violated their First Amendment
rights by compelling participation in religious services arbitration conducted
by Scientologists in good standing and guided by the beliefs of Scientology.
First, Respondents incorrectly argue that judicial enforcement of private
agreements can never amount to state action and thus that enforcement of the
religious arbitration agreement cannot violate Petitioners’ First Amendment
rights. Further, Petitioners’ characterization of the religious services
agreement as a “religious ritual” is supported by the record, and the court
may apply neutral principles of law to determine whether the religious
services agreement is enforceable without violating Respondents’ First
Amendment rights.
1. Judicial Enforcement of Religious Arbitration Agreements Against
Non-Believers Amounts to State Action Subject to Constitutional
Scrutiny
Petitioners satisfy the Fourteenth Amendment’s state-action
requirement so long as the “conduct allegedly causing the deprivation of a
federal right [is] fairly attributable to the State.” Lugar v. Edmonson Oil
Company, Inc., (1982) 457 U.S. 922, 937; see also, Caviness v. Horizon
Cmty. Learning Ctr., Inc., (9th Cir. 2010) 590 F.3d 806, 812. There is no
precise formula for discerning state action, rather “[o]nly by sifting facts and
weighing circumstances can the nonobvious involvement of the State in
private conduct be attributed its true significance.” Burton v. Wilmington,
(1961) 365 U.S. 715, 722.
Respondents’ reliance upon Naoko Ohno v. Yuko Yasuma to argue that
judicially enforced arbitration agreements can never amount to state action
is misplaced. (9th Cir. 2013) 723 F.3d 984. The question in that case was

18
whether the courts’ recognition and enforcement of a foreign damages award
could transform the underlying foreign court’s judgement into domestic state
action subject to constitutional scrutiny. Id. at 998-1001. While the Naoko
court answered this question in the negative, the court explicitly states that
“decisions of a domestic court in the United States do constitute
governmental action.” 723 F.3d at 994. The court explained further that “the
action of state courts and of judicial officers in their official capacities [has
long been] regarded as action of the State within the meaning of the
Fourteenth Amendment.” Id. at 994 (citing Shelley v. Kraemer, (1948) 334
U.S. 1, 14). The same is true for federal courts. Id. (citing Gathright v. City
of Portland, (9th Cir.2006) 439 F.3d 573, 576 n. 2;- cf. Hurd v. Hodge, (1948)
U.S. 24, 31–36; Franklin v. White Egret Condo., Inc., (Fla. 4th DCA 1977)
358 So. 2d 1084, 1088-89 (holding judicial enforcement of a private
agreement is state action)).
The United States Supreme Court first held that judicial enforcement
of a private right or obligation can constitute state action triggering
constitutional scrutiny in Shelley v. Kraemer, (1948) 334 U.S. 1, 20, 68,
which held that racially restrictive covenants in private contracts could not
be enforced by the courts. See also, Barrows v. Jackson, (1953) 346 U.S.
249, 254, 258 (applying same state action principle to court’s award of
damages for violation of discriminatory private contract). Although
Respondents note that the Shelley holding has generally been confined to the
context of discrimination claims under the Equal Protection Clause, there is
no indication in either Shelley or Naoko that the state action inquiry could
not be applied in the context of First Amendment Religion Clause challenges.
Resp. Memo, p.51-52, §C (1). This prospect is support by the United States
Supreme Court holding in New York Times Co. v. Sullivan, where a court
order that infringed a constitutional right—there, free speech—constituted
“state action” regardless of the “private” nature of the litigation. (1964) 376

19
U.S. 254, 265-66. It flows from the Court’s holding that the denial to
adequately protect First Amendment rights renders the reviewing court the
“state actor.”
Respondents’ reliance on Spivey to limit the holding of Shelley is
misplaced. Id. As Petitioners note infra §B, the signatories to the agreement
in Spivey did not object to religious arbitration and thus there was no state
action compelling a signatory to the agreement, against their will, to engage
in a religious arbitration procedure. 122 So.3d 986. Further, the court
indicated that had the decedent objected to the arbitration that the case might
raise serious religion clause questions. 122 So.3d at 991-93.
Respondents rely on cases that are materially distinguishable, if not
entirely inapplicable, to Petitioners’ case which, unlike those previously
before the courts in this state, contemplates the liberty interests afforded to
Petitioners as signatories to the religious arbitration agreements. As the court
in Shelley holds, private parties to a contract must comply with constitutional
requirements should they wish for their agreement to be enforceable in court.
Respondents are free to believe what they choose, but they may not coopt the
courts into imposing on Petitioners’ beliefs they now reject by imposing on
them religious services arbitration.

2. Courts Have Inconsistently Applied First Amendment Principles to

Religious Arbitration Agreements
Respondents present an incomplete picture to this Court regarding the
current landscape of courts’ application of First Amendment principles to
religious arbitration. Far from being resolute, courts across the nation have
inconsistently applied First Amendment principles to religious arbitration
agreements, and no court has considered the right to exit religion under a
First Amendment analysis with respect to judicial enforcement of religious
arbitration agreements.

20
 While the action of a civil court enforcing religious arbitration or
confirming or voiding a decision by a religious tribunal would seem to raise
clear First Amendment concerns, the vast majority of court opinions
reviewing the enforceability of religious arbitration agreements do not
address this issue at all. See, e.g., Nestel v. Nestel, (N.Y. Super. Ct. Mar.
6,1972) 38 A.D.2d 942 (“[J]udicial process is more broadly gauged and
better suited [than arbitration] in protecting [a child’s best interests]”);
Matter of Jacobovitz, (N.Y. Sur. Ct. Dec. 9, 1968) 58 Misc.2d 330; Matter
of Berger, (N.Y. Sup. Ct. April 6, 1981) 81 A.D.2d 584; Matter of Goldmar
Hotel Corp., (N.Y. Sup. Ct. May 25,1954) 283 A.D. 935. Other courts side-
step First Amendment analysis by simply refusing to enforce religious
arbitration agreements on public policy grounds. See, e.g., Matter of
Teitelbaum, 662 (N.Y. Sup. 2005) 10 Misc.3d 659, (“Arbitration agreements
are unenforceable where substantive rights, embodied by statute, express a
strong public policy which must be judicially enforced”) (citing Matter of
Wertheim & Co. v. Halpert, (1979) 48 NY2d 681, 683).

Courts that have acknowledged the First Amendment concerns

inherent in religious arbitration agreements have reached opposite
conclusions about whether the court is precluded from applying neutral
principles of law to enforce the agreements or affirm an arbitral award. See,
e.g., Sieger v. Sieger, (Sup. Ct., June 29, 2005) 2005 WL2031746, *50
(refusing to compel arbitration because the court would have to defer to
Appellant’s claim that a provision requiring that any dispute be settled “in
accordance with the ‘regulations of Speyer, Worms, and Mainz’” referred to
a rabbinical court, to which the court could not apply neutral principles of
contract law, and thus enforcement would violate the religion clauses); see
also, Aflalo v. Aflalo, (N.J. Super. Ct. Ch. Div. Feb. 29, 1996) 685 A.2d 523,
541 (refusing to enforce an agreement to arbitrate a religious divorce dispute
before a beth din because doing so would “inappropriately entangle[] the
21
civil court in the wife’s attempts to obtain a religious divorce”); Dial 800, 12
Cal. Rptr. 3d 711, 724 (holding that an arbitral award rendered by three
rabbis and “based on principals [sic] of Jewish law” would be enforceable in
court); In re Ismailoff, (N.Y. Sur. Ct. Feb. 1, 2007) No. 342207, 2007
WL431024, slip op. at 1 (concluding that the arbitrator qualification
provision which required dispute be submitted to arbitration before a panel
consisting of three persons of the Orthodox Jewish faith, was unenforceable
under the First Amendment); but see, Garcia v. Mother Church of
Scientology Flag Serv. Org., Inc.et al., (M.D. Fla. Sept. 20, 2019) No.8:13-
cv-220-T-27TBM, 2015 WL10844160, *2 (declining to accept petitioners
argument that the court could not enforce an arbitration agreement where
prospective arbitrators were to be Scientologists “in good standing” with the
church and instead refusing to entertain this argument on First Amendment
grounds because it would require analysis and interpretation of Scientology
doctrine); Abbo v. Briski, (Fla. 4th D. Ct. App. Sept. 27,1995) 660 So.
2d1157, 1159-61 (declining to require divorcing spouse to rear children in a
certain faith despite the fact that, as condition of the marriage, the spouse
agreed to convert to the faith in question).

Respondents rely on the cases discussed by Petitioners infra §B, to

argue that the precedent is clear when it is not. This Court has yet to consider
the precise issue raised by Petitioners but can do so now without offending
First Amendment principles under the California or Federal Constitutions.
While this is a case of first impression in terms of facts, it involves the
bedrock constitutional principle that persons have a right to believe whatever
they choose. Both the California and Federal Constitutions recognize an
absolute right to believe what one chooses. That right is a chimera unless it
includes the right to reject a faith and to choose another or none at all.

22
 3. Petitioners’ Characterization of the Arbitration Agreement
as A Religious Service or Ritual Is Supported by The
Record
Petitioners correctly classified the religious arbitration required by the
“Agreements” as a religious service or ritual. The trial court stated and the
Respondents’ acknowledged that Petitioners signed multiple Religious
Services Enrollment Agreements affirming their dedication to Scientology
and agreeing to resolve disputes within Scientology. Farny Decl. in support
of CSI Motion, Exhibits 7-10. The agreement to arbitrate and Petitioners’
affirmation of Scientology are not severable−Petitioners’ ability to
participate as members in the Church was predicated on their consent to
religious services. Notably, the agreements establish the nature of that
consent as memorializing Petitioners’ “intention to participate in Scientology
Religious Services only for the purposes of self-improvement and spiritual
advancement,” Bixler Agreements, §5 (emphasis added), and “to achieve
spiritual betterment.” Doe 2 Agreement, § 13.
Moreover, the Religious Services Enrollment Application Agreement
and General Release documents expressly state that any dispute subject to
the agreements would be “by [their] very nature” “a matter of religious
doctrine.” Farny Decl. in support of CSI Motion, Exhibit 9. This language
alone provides sufficient evidence on the record that the arbitration
agreements were religious services or rituals, notwithstanding that the
religious arbitration will be adjudged by members in good standing in the
Church of Scientology and will be governed according to the doctrine and
bylaws of the Church.
Despite Respondents’ protestations, the religious arbitration at issue
is not just tangentially impacted by religious doctrine—it is defined by it. See
generally, 1 EP 185-90. The vehicle by Petitioners and other signatories of

23
such agreements must address their religious disputes may thus be
appropriately referred to as a religious act.
4. The Abstention Doctrine Does Not Apply to the Facts of this Case
and Courts Can Apply “Neutral Principles of Law” to Adjudicate
the Parties’ Purely Secular Disputes
The First Amendment’s guarantee that “Congress shall make no law .
. . prohibiting the free exercise of religion” holds an important place in our
scheme of ordered liberty, but our courts have steadfastly maintained that
“[n]ot all burdens on religion are unconstitutional.” Bowen v. Roy, (1986)
476 U.S. 693, 701-02; see also, Employment Div. v. Smith, (1990) 494 U.S.
872, 877; Wisconsin v. Yoder, (1972) 406 U.S. 205, 215-16 (“Although a
determination of what is a ‘religious’ belief or practice entitled to
constitutional protection may present a most delicate question, the very
concept of ordered liberty precludes allowing every person to make his own
standards on matters of conduct in which society as a whole has important
interests.”).

The ecclesiastical abstention doctrine does not apply in this case,

because the court is not being asked by the Petitioners to determine the
beliefs of the Respondents. Ecclesiastical abstention is required when the
courts are placed in a position to dictate what a religious organization or
believer should believe. Petitioners are not insiders in Scientology asking a
court to interpret their faith. To the contrary, they are asking the court to
make determinations any rape victim might request against any entity that
has harassed them. The exception emphatically “does not mean that religious
institutions enjoy a general immunity from secular laws [.]” Our Lady of
Guadalupe Sch. v. Morrissey-Berru, (2020) 140 S. Ct. 2049, 2060. Religious
organizations do not possess absolute religious freedom to ignore generally
applicable laws. Smith, 494 U.S. at 893. The First Amendment’s Religion

24
Clauses are not a refuge for criminal or tortious behavior that harms the
vulnerable.

There is no religious question involved in this case that would

preclude this or any other Court from considering Petitioners’ secular tort
claims, matters that civil courts are well-equipped to handle. This United
States Supreme Court in Jones v. Wolf held that generally applicable legal
issues can be reviewed on “purely secular terms.” (1979) 443 U.S. 595, 604.

5. Respondents Mischaracterize Petitioners’ Reliance Upon Relevant

Case Law

Respondents’ narrow focus on three cases cited by Petitioners— In re

Marriage of Weiss, (Cal. Ct. App. 1996) 49 Cal. Rptr. 2d 339, Zummo v.
Zummo, (Pa. Super. Ct. 1990) 574 A.2d 1130, and Abbo v. Briskin, (Fla. 4th
DCA 1995) 660 So. 2d 1157—is an attempt to deflect from the key issue on
which Petitioners rely. Specifically, these cases underscore the foundational
principle that First Amendment religious freedoms, including the right to exit
religion, are inalienable and may not be bargained away. Weiss, 49 Cal. Rptr.
2d 339 at 347 (declining to enforce a pre-nuptial agreement because, to do
so, would “encroach[] upon the fundamental right of individuals to question,
to doubt, and to change their religious convictions.”); Zummo, 574 A.2d at
1146-48 (recognizing the “fundamental [constitutional] right of individuals
to question, to doubt, and to change their religious convictions”); Abbo, 660
So. At 1159 (“The freedom to choose any religion necessarily comprehends
the freedom to change religions. Great changes in religious beliefs by
individuals are a feature of Western history”). Petitioners have a right to
choose and then exit a religious affiliation and cannot, as nonbelievers, be
required by the courts to undergo religious services arbitration.
Petitioners have repeatedly acknowledged that the Weiss case
involved judicial enforcement of antenuptial agreements, yet the same First

25
Amendment analysis undertaken in that case applies equally to the
enforceability of religious arbitration agreements. The court in Weiss
considered whether a party is contractually bound by their Declaration of
Faith to raise their child in a certain religion. 49 Cal. Rptr. 2d 339. In holding
that the agreement was not legally enforceable in view of the party’s
inalienable free exercise rights, the Weiss court explained, “only those
interests of the highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion.” Id. at 342 (citing Wisconsin
v. Yoder, (1972) 406 U.S. 205, 215). The court’s decision was informed by
this very “fundamental principle.” Id.
Likewise, the court in Zummo refused to enforce a similar prenuptial
agreement over the objections of one of the parties for reasons that
“enforcement would be contrary to a public policy embodied in the First
Amendment Establishment and Free Exercise Clauses (as well as their state
equivalents) that parents be free to doubt, question, and change their beliefs.”
574 A.2d at 1144; see also, Abo, , 660 So. 2d at 1159 (explaining that the
concerns related to enforcement are even greater “when the parent to be
compelled later suffers . . . a genuine, good faith change of religious
conscience.”). In so holding, the court noted that religion is a “lifelong
dynamic process” and that “the First Amendment specifically preserves the
essential religious freedom for individuals to grow, to shape, and to amend
this important aspect of their lives” and that these freedoms “may not be
bargained away.” Id. at 1146-48. As the court in Abo explains, “[w]e would
reduce the right to the free exercise of religion by half if we did not recognize
the right to change one’s religious mind.” 660 So.2d at 1159.
The Religious Services Arbitration agreement in this case is
unenforceable, because Petitioners have the inalienable right to change their
minds about religion, and they have. The trial court has compelled the

26
Petitioners to adhere to a faith they now reject, which is a plain violation of
the First Amendment.
D. COERCED RELIGIOUS PRACTICES ARE NOT ENTITLED TO
CONSTITUTIONAL PROTECTION UNDER THE FIRST
AMENDMENT’S RELIGION CLAUSES

Respondents have an absolute right to believe as they choose,

however they do not have the right to impose their beliefs upon Petitioners
and other non-believers under the guise of so-called “arbitration.” See, infra
§C (5). As this Court has held, the First Amendment does not immunize a
religious organization from civil liability for intentional tortious acts.
Wollersheim v. Church of Scientology, (1989) 212 Cal.App.3d 872, review
den. Oct. 26, 1989, cert. granted, vacated and remanded on other grounds 499
U.S. 914, amended by (1992) 15 Cal.App.4th 1426; see also, Molko v. Holy
Spirit Assn., (1988) 46 Cal.3d 1092, 1118, cert. den. (1989) 490 U.S. 1084
(state has a compelling interest in ‘protecting individuals and families from
the substantial threat to public safety, peace and order posed by the fraudulent
induction of unconsenting individuals into an atmosphere of coercive
persuasion[,]” and no less restrictive alternative is available to imposing tort
liability for fraudulent recruiting practices). This is so because coerced
religious practices are not entitled to constitutional protection under the First
Amendment’s religious freedom guarantees. Wollersheim, 212 Cal.A.3d at
877.
The acts described in Petitioners’ complaint include acts perpetrated
against them after they left Scientology and no longer believed in its
principles. The court-ordered requirement that they arbitrate such claims in
an arbitral forum run by believers in good standing and governed by the
very religious principles they have renounced is forbidden by
the Establishment Clause of the First Amendment. Applying the U.S.
Supreme Court’s three-part test, the court can assist Scientology

27
by compelling Scientology arbitration only if the primary purpose of the
assistance is secular, the assistance neither promotes nor inhibits
Scientology, and providing such assistance would not excessively entangle
Scientology and the state. Lemon v. Kurtzman, (1971) 403 U.S. 602, 612-
613. Respondents’ arguments fail the Lemon test, and this Court may not
coerce Petitioners back into Respondents’ fold.
E. THE ARBITRATION ORDER VIOLATES BOTH MARSY’S
LAW AND THE PROTECTIVE ORDER

1. Petitioner’s Arguments Are Timely

Respondents first argue that Petitioners are not entitled to relief

under Marsy’s Law or the protective order in place in the parallel criminal
proceedings because neither issue was timely raised before the trial court.
They are mistaken. First, Petitioners did raise both Marsy’s law and the
protective order before the trial court. 5 EP 1402. Counsel for petitioners
did not possesses the protective order at the time of the filing of their
Opposition and subsequently made it part of the written record by the filing
of a Supplemental Opposition. Petitioners further raised the issue during
oral argument before the trial court. Contrary to the assertions by
Respondents, the trial court never explicitly rejected this argument nor did
the trial court suggest that it would not consider Petitioners’ argument as
untimely. 5 EP 1402-1404. Any fair and reasonable review of the transcript
of proceedings makes this clear. What is also clear, however, is that the trial
court improperly failed to address either argument when reaching its
conclusion.
Regardless, the issue at hand, including the application of Marsy’s
Law, is a constitutional one. Whether an appellate court should address
constitutional arguments “rests within the court’s discretion.” Lopez v.
McMahon, 205 Cal. App. 3d 1510, 1520-21 (1988). California courts “have

28
several times examined constitutional issues raised for the first time on
appeal” or in cases where there are important issues of public policy, such
as in this case. Hale v. Morgan, 22 Cal. 3d 388, 394 (1978); Bayside
Timber Co. v. Board of Supervisors, 20 Cal. App. 3d 1, 4-5 (1971).
2. The Arbitration Order Violates Marsy’s Law

Respondents have shown a willingness throughout these proceedings

to ignore the law and the facts. The arguments they advance here are no
different. Respondents begin by arguing that Marsy’s Law provides
protections to victims of crime involved in the criminal justice process.
There is no dispute that this is what Marsy’s Law does. What Respondents
ignore, however, is that Petitioners are victims involved in the criminal
justice process and that the arbitration order at issue will operate to force
them to confront their abuser, in person, outside the criminal courtroom,
without any protection, which is, inter alia, exactly what Marsy’s Law is
intended to guard against. Marsy’s Law is also meant to keep victims of
crime like Petitioners free from intimidation, harassment, and abuse,
throughout the criminal or juvenile justice process; protected from the
criminal defendant and persons acting on behalf of the defendant; protected
from the disclosure of confidential information or records to the defendant,
the defendant’s attorney, or any other person acting on behalf of the
defendant, which could be used to locate or harass the victim or the
victim’s family; and free to refuse an interview, deposition, or discovery
request by the defendant, the defendant’s attorney, or any other person
acting on behalf of the defendant. CAL. CONST. ART. I, § 28, section (b).
The arbitration order violates each of these covenants of Marsy’s
Law and permits the criminal defendant—Masterson—and those acting on
his behalf—the Church of Scientology—to intimidate, harass, and abuse
Petitioners, to force them to disclose confidential information, and to force

29
them to sit for an interview, deposition, or the equivalent thereto during the
religious ritual that is Scientology’s religious arbitration. The context in
which these violations occur—on the street or during a Scientology
religious ritual—is of no moment when it comes to the sacred constitutional
guarantees of Marsy’s Law. Instead, what matters is a violation or threat of
a violation of Marsy’s Law. Here, by being forced to undergo religious
arbitration, Petitioners, who are no doubt victims in the parallel criminal
case, would be forced to endure violations of Marsy’s Law at the hands of
their abuser, the criminal defendant, and those operating on his behalf. The
criminal defendant, and the Church which operates to support him, would
not use this arbitration process for any other purpose other than to subvert
and circumvent the criminal discovery process, all in violation of the
guarantees owed to Petitioners under Marsy’s Law.
The attempts by Respondents to undermine the constitutional
provisions and cases cited by Petitioners are unavailing. The propositions in
each case cited are unassailable no matter how hard Respondents may try,
and each leads to the same conclusion: a crime victim’s rights are sacred
and no process, criminal, civil, or religious, should be used to subvert them,
and especially not with the imprimatur of the court. See State v. Deal, 740
N.W.2d 755 (Minn. 2007) (staying civil discovery depositions of a minor
sexual assault victim by a criminal defendant, finding that the state and the
public had a compelling interest in protecting minors and victims of sexual
abuse that outweighed any public interest in the integrity of the criminal
and civil process); State v. Lee, 245 P.3d 919 (Ariz. Ct. App. Jan. 13, 2011)
(“victims retain their constitutional right to refuse defendant’s request for a
deposition under Arizona’s Victim Bill of Rights” where the defendants in
a criminal action attempted to force a deposition of the victim in a parallel
civil lawsuit); Lizarraga v. City of Nogales, No. CV06474, 2007 WL
4218972, at *3 (D. Ariz. Nov. 29, 2007) (order) (staying a civil case

30
because the risk of mental and emotional harm to the victim “outweighed
the disadvantage to the Defendant of not proceeding with the civil case.”).
3. The Arbitration Order Clearly Violates Judge Espinoza’s
Protective Order

Finally, Respondents claim that the arbitration order would not run
afoul of the protective order, entered in the parallel criminal case by the
judge overseeing that matter as a mechanism to protect Petitioners from
contact by their rapist. Their arguments in support of their position are
laughable.
Respondents first claim that because the Protective Order does not
specifically mention the Church Defendants that the arbitration cannot
offend the order. This is untrue for two reasons. First, the Church
Defendants clearly would be third parties acting on behalf of Masterson.
Plaintiffs’ First Amended Complaint alleged that Masterson and the Church
Defendants were agents of the other and the Church Defendants adopted
this very position before the trial court. 5 EP 1378 (counsel for the Church
of Scientology referring to Masterson, “[a]s our agent, he does not qualify
as a third party under section 1281.2(c)”) (emphasis added). The trial court
recognized as much. 6 EP 1509. Furthermore, the reality is that the trial
court, sua sponte and without any briefing from any party, ordered that
Masterson participate in the religious arbitration. Second, whether or not
the Church Defendants would then be acting as third parties on behalf of
Masterson (and there is no question they would be) then becomes irrelevant
to the analysis as the trial court is compelling Petitioners to have direct
contact with criminal defendant Masterson, including but not limited to
being questioned by Masterson and/or his representative outside the
criminal justice process. Therefore, the religious arbitration proceedings, as
specifically crafted sua sponte by the trial court, violate the protective order
on its face.

31
 Respondents then argue that because arbitration is not specifically
mentioned in the protective order that the religious arbitration proceedings
ordered by the trial court cannot violate the protective order. Once again,
their argument misses the mark. The protective order put in place by Judge
Espinoza is crystal clear: there is to be no contact between criminal
defendant Masterson or third parties on his behalf with Petitioners. There is
nothing to analyze in this regard as the language of the protective order is
absolute. The religious arbitration ordered by the trial court would violate
this provision of the protective order. Merely because the criminal trial
court did not identify the myriad ways in which there could be contact from
Masterson or third parties on his behalf or the myriad ways in which the
order could be violated does not mean that the criminal trial court intended
to exempt the religious arbitration proceedings, which had not yet even
been ordered by the trial court, from the terms of the order. Any contact—
even voluntary contact on the part of Petitioners—would violate the terms
of the order.
Finally, Respondents argue that Petitoners should be forced to turn
to the arbitration panel for protection. The religious arbitration procedures
at issue here are designed to harass and terrorize non-believers such as
Petitioners. 5 EP 1117 – 1126. The arbitration panel may be composed only
of Church members in good standing. Id. This could even include
Masterson himself. Id. To suggest that Petitioners must turn to the stacked
deck of a panel of religious arbiters when they have already been given the
protections of the criminal trial court by way of the protective order is
nonsensical. Respondents then go on to admit that violations of the
protective order are bound to occur in their religious arbitration proceedings
but suggest this is acceptable because contact between parties and witnesses
in their religious arbitrations are inevitable and that this is not unique. This
is, of course, hardly the case and Respondents fail to produce a single

32
example of a circumstance where any arbitration, religious or otherwise,
was conducted while a concurrent criminal prosecution was ongoing that
had in place an absolute bar to contact between crime victims and a
criminal defendant or his representatives such as the circumstances that
exist here. Respondents cannot be permitted to chalk up violations of a
criminal protective order such as the one at issue here as routine and
inevitable. Judge Espinoza’s words, no matter what Respondents may
claim, have meaning and are supported by the force of law.

Date: August 13, 2021 By ________________________

Robert W. Thompson
Attorney for Petitioners

33
 VERIFICATION

I, Robert W. Thompson, Esquire, declare as follows: I am one of the

attorneys for Petitioners Chrissie Carnell Bixler, Cedric Bixler-Zavala, Jane
Doe #1, and Jane Doe #2. I have read the foregoing Petition for Writ of
Mandate and know its contents. The facts alleged in the petition are within
my own knowledge and I know these facts to be true. Because of my
familiarity with the relevant facts pertaining to the Respondent Court
proceedings, I, rather than the Petitioners, verify this Petition.

I declare under penalty of perjury that the foregoing is true and

correct under the laws of the State of California and that this verification
was executed on August 13, 2021, in San Mateo County, California.

_____________________
Robert W. Thompson
Attorney for Petitioners

34
 CERTIFICATION

I hereby certify this petition, excluding tables, is 9,815 words long.

By: _____________________________

Robert W. Thompson

35
 PROOF OF SERVICE
(C.C.P. §1013(a), 2015.5)

I, the undersigned, hereby declare under penalty of perjury as

follows: I am a citizen of the United States, and over the age of eighteen
years, and not a party to the within action; my business address is 700
Airport Boulevard, Suite 160, Burlingame, California 94010. On this date, I
served the interested parties in this action this REPLY TO RETURN TO
ORDER TO SHOW CAUSE ON PETITION FOR WRIT OF
MANDATE via the court’s online True Filing system as follows:

William H. Forman, Esq.

David C. Scheper, Esq.
Margaret E. Dayton, Esq.
Winston & Strawn, LLP
333 South Grand Avenue, 38th Floor
Los Angeles, California 90017
Email: [email protected]
Email: [email protected]
Email: [email protected]
Attorneys for Defendants Church of Scientology International and
Celebrity Centre International

Robert W. Mangels, Esq.

Matthew D. Hinks, Esq.
Jeffer, Mangels, Butler & Mitchell, LLP
1900 Avenue of the Stars, 7th Floor
Los Angeles, California 90067
Email: [email protected]
Email: [email protected]
Attorneys for Defendant Religious Technology Center

Andrew B. Brettler
Lavely & Singer, P.C.
2049 Century Park E., Suite 2400
Los Angeles, California 90067
Email: [email protected]
Attorney for Defendant Daniel Masterson

36
 I, the undersigned, also hereby declare under penalty of perjury as
follows: I am a citizen of the United States, and over the age of eighteen
years, and not a party to the within action, my business address is 700
Airport Boulevard, Suite 160, Burlingame, California 94010. On this date, I
caused to be mailed this REPLY TO RETURN TO ORDER TO SHOW
CAUSE ON PETITION FOR WRIT OF MANDATE:
Los Angeles County Superior Court (via USPS)
Central District, Stanley Mosk Courthouse, Dept. 57
111 North Hill Street
Los Angeles, CA 90012

Executed at San Mateo County, California on August 13, 2021.

By: _____________________________

Robert W. Thompson

37
 Court of Appeal, Second Appellate District
Daniel P. Potter
Electronically FILED on 8/13/2021 by Karla Dominguez, Deputy Clerk

PROOF OF SERVICE
STATE OF CALIFORNIA
California Court of Appeal, Second
STATE OF CALIFORNIA
Appellate District
California Court of Appeal, Second
Appellate District
Case Name: Chrissie Carnell Bixler et al. v. Superior Court
of Los Angeles County et al.
Case Number: B310559
Lower Court Case Number: 19STCV29458

At the time of service I was at least 18 years of age and not a party to this legal
1.
action.

2. My email address used to e-serve: [email protected]

3. I served by email a copy of the following document(s) indicated below:

Title(s) of papers e-served:

Filing Type Document Title
RESPONSE - REPLY 2021.08.1 Writ Return Reply
Service Recipients:
Date /
Person Served Email Address Type
Time
Pamela Tanigawa [email protected] e- 8/13/2021
Winston & Strawn LLP Serve 2:57:47
PM
Marci Hamilton [email protected] e- 8/13/2021
Court Added Serve 2:57:47
PM
Margaret Dayton [email protected] e- 8/13/2021
Winston & Strawn LLP Serve 2:57:47
274353 PM
William Forman [email protected] e- 8/13/2021
Winston & Strawn LLP Serve 2:57:47
150477 PM
William Forman [email protected] e- 8/13/2021
Winston & Strawn LLP Serve 2:57:47
150477 PM
Robert Thompson [email protected] e- 8/13/2021
Thompson Law Offices, P.C. Serve 2:57:47
250038 PM
Frederick Bennett [email protected] e- 8/13/2021
Superior Court of Los Angeles County Serve 2:57:47
47455 PM
David Scheper [email protected] e- 8/13/2021
Winston & Strawn LLP Serve 2:57:47
120174 PM
Andrew Brettler [email protected] e- 8/13/2021
Lavely & Singer Professional Corporation Serve 2:57:47
262928 PM
Matthew Hinks [email protected] e- 8/13/2021
Jeffer, Mangels, Butler & Mitchell, LLP Serve 2:57:47
200750 PM
Leslie Griffin [email protected] e- 8/13/2021
Serve 2:57:47
174017 PM

This proof of service was automatically created, submitted and signed on my behalf
through my agreements with TrueFiling and its contents are true to the best of my
information, knowledge, and belief.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

8/13/2021
Date

/s/Robert Thompson
Signature

Thompson, Robert (250038)

Last Name, First Name (PNum)

Thompson Law Offices, P.C.

Law Firm