Supreme Court of California Supreme Court of California

Jorge E. Navarrete, Clerk and Executive Officer of the Court Jorge E. Navarrete, Clerk and Executive Officer of the Court
Electronically RECEIVED on 4/6/2021 at 6:49:37 PM Electronically FILED on 4/6/2021 by Karissa Castro, Deputy Clerk

S267740
IN THE CALIFORNIA SUPREME COURT
CHRISSIE CARNELL BIXLER, CEDRIC BIXLER-ZAVALA,
JANE DOE #1, & JANE DOE #2,
Plaintiffs and Petitioners,
v.
SUPERIOR COURT FOR THE STATE OF CALIFORNIA,
COUNTY OF LOS ANGELES
Respondent,
DANIEL MASTERSON, CHURCH OF SCIENTOLOGY
INTERNATIONAL, RELIGIOUS TECHNOLOGY CENTER,
& CHURCH OF SCIENTOLOGY CELEBRITY CENTRE
INTERNATIONAL,
Defendants and Real Parties in Interest.
DEFENDANTS’ ANSWER TO PETITION FOR REVIEW
FROM AN ORDER DENYING WRIT REVIEW
Second District Court of Appeal No. B310559
Los Angeles County Superior Court Case No. 19STCV29458 –
Hon. Steven J. Kleifield, Department 57

WINSTON & STRAWN LLP JEFFER MANGELS BUTLER &

*WILLIAM H. FORMAN (SBN: 150477) MITCHELL LLP
whforman@winston.com ROBERT E. MANGELS (SBN: 48291)
DAVID C. SCHEPER (SBN: 120174) rem@jmbm.com
dscheper@winston.com *MATTHEW D. HINKS (SBN: 200750)
MARGARET E. DAYTON (SBN: 274353) mhinks@jmbm.com
pedayton@winston.com 1900 AVENUE OF THE STARS, 7TH
333 SOUTH GRAND AVENUE FLOOR
LOS ANGELES, CA 90071-1543 LOS ANGELES, CA 90067-4308
(213) 615-1700 • FAX: (213) 615-1750 (310) 203-8080 • FAX: (310) 203-0567

ATTORNEYS FOR DEFENDANTS AND REAL ATTORNEYS FOR DEFENDANT AND REAL
PARTIES IN INTEREST CHURCH OF PARTY IN INTEREST RELIGIOUS
SCIENTOLOGY INTERNATIONAL & TECHNOLOGY CENTER
CELEBRITY CENTRE
INTERNATIONAL
 CERTIFICATE OF INTERESTED PARTIES

In accordance with Rule 8.208 of the Rules of Court, the

undersigned certifies that they know of no entities that (1)

have an ownership interest of 10% or more in Church of

Scientology International, Church of Scientology Celebrity

Centre International, or Religious Technology Center or (2)

have a financial or other interest in this litigation that the

Justices should consider when determining whether to

disqualify themselves.

Real Parties in Interest Church of Scientology

International, Church of Scientology Celebrity Centre

International, and Religious Technology Center are

corporations.

Dated: April 6, 2021 WINSTON & STRAWN LLP

By:
William H. Forman

Attorneys for Defendants and

Real Parties in Interest
Church of Scientology
International & Celebrity
Centre International

2
Dated: April 6, 2021 JEFFER MANGELS
BUTLER & MITCHELL
LLP

By:
Matthew D. Hinks

Attorneys for Defendant and

Real Party in Interest
Religious Technology Center

3
 TABLE OF CONTENTS

I. INTRODUCTION ................................................................... 11
II. RELEVANT FACTS ............................................................... 16
A. The Parties, Their History With Each Other, and the
Agreements to Arbitrate. ................................................ 16
III. PROCEDURAL HISTORY .................................................... 19
A. Petitioners’ Lawsuit. ....................................................... 19
B. The Proceedings in the Trial Court and the
Masterson Criminal Case. .............................................. 21
C. The Trial Court’s Findings in the Order Compelling
Arbitration....................................................................... 24
D. Petitioners’ Writ Petition. .............................................. 27
E. The Court of Appeal’s Summary Denial of the Writ
Petition. ........................................................................... 27
IV. THERE ARE NO GROUNDS FOR SUPREME COURT
REVIEW.................................................................................. 28
A. Petitioners’ First and Second Questions Do Not
Warrant Review. ............................................................. 31
1. The First and Second Questions Do Not Concern
Issues In This Matter, and Are So Narrowly-
Drawn They Likely Apply To No Case. .................. 31
2. Enforcing Private Arbitration Agreements Does
Not Constitute State Action.................................... 35
3. Petitioners’ Agreement to Participate in
Religious Arbitration Waives Their First
Amendment Challenge. ........................................... 40
4. Petitioners’ First Amendment Argument Is
Factually Unsupported. .......................................... 42
B. Petitioners’ Third Question Does Not Warrant
Review. ............................................................................ 46
1. Marsy’s Law Does Not Apply to This Case. ........... 48
2. The Arbitration Order Does Not Violate the
Protective Order in the Masterson Case. ............... 52

4
 C. Petitioners’ Claims of “Irreparable Harm” Do Not
Warrant Review. ............................................................. 56
D. Petitioners’ Claims That The Issues Will “Evade
Review” Are Unfounded. ................................................ 58
V. CONCLUSION ....................................................................... 59

5
 TABLE OF AUTHORITIES

Page(s)

Cases

Abd Alla v. Mourssi

(Minn. Ct. App. 2004) 680 N.W.2d 569 .................................... 46

Atlas Plastering, Inc. v. Superior Court

(1977) 72 Cal.App.3d 63 ........................................................... 58

Board of Education of Kiryas Joel Village School

District v. Grumet
(1994) 512 U.S. 687 ................................................................... 38

Davis v. Prudential Securities, Inc.

(11th Cir. 1995) 59 F.3d 1186................................................... 36

Dial 800 v. Fesbinder

(2004) 118 Cal.App.4th 32 ............................................ 32, 34, 45

Easterly v. Heritage Christian Schools, Inc.

(S.D. Ind. Aug. 26, 2009) No. 1:08-cv-1714,
2009 WL 2750099 ..................................................................... 45

Elmora Hebrew Ctr., Inc. v. Fishman

(1991) 125 N.J. 404 ............................................................. 41, 42

Elmore v. Chicago & Illinois Midland Ry. Co.

(7th Cir.1986) 782 F.2d 94........................................................ 36

Fed. Deposit Ins. Corp. v. Air Florida Sys., Inc.

(9th Cir.1987) 822 F.2d 833...................................................... 36

Felisilda v. FCA US LLC

(2020) 53 Cal.App.5th 486, 495 ................................................ 58

Frittelli, Inc. v. 350 North Canon Drive, LP

(2011) 202 Cal.App.4th 35 .................................................. 27, 43

6
Gen. Conference of Evangelical Methodist Church v.
Evangelical Methodist Church of Dalton, Georgia,
Inc.
(N.D. Ga. 2011) 807 F. Supp. 2d 1291 ..................................... 45

Golden Gateway Ctr. v. Golden Gateway Tenants

Assn.
(2001) 26 Cal.4th 1013 .............................................................. 39

Independent Assn. of Mailbox Center Owners, Inc. v.

Superior Court
(2005) 133 Cal.App.4th 396 ...................................................... 58

Jenkins v. Trinity Evangelical Lutheran Church

(Ill. App. 2005) 825 N.E. 2d 1206 ............................................. 46

Kedroff v. St. Nicholas Cathedral of Russian

Orthodox Church in N. Amer.
(1952) 344 U.S. 94 ..................................................................... 44

Kowis v. Howard
(1992) 3 Cal.4th 888 .................................................................. 59

Larkin v. Grendel’s Den, Inc.

(1982) 459 U.S. 116 ................................................................... 38

Lizarraga v. City of Nogales Arizona

(D. Ariz. Nov. 29, 2007) No. CV- 06-474 TUC CDB,
2007 WL 4218972 ..................................................................... 51

Lohr v. Superior Court of Cal. In & For Los Angeles

Cty.
(1952) 111 Cal.App.2d 231 ....................................................... 57

Medical Bd. of Calif. v. Superior Court

(1991) 227 Cal.App.3d 1458 ..................................................... 47

Metcalf v. Cnty. of San Joaquin

(2008) 42 Cal.4th 1121 .................................................. 33, 46, 56

Mitchell v. Superior Court of Cal. In & For Los

Angeles Cty.
(1950) 98 Cal.App.2d 304 ......................................................... 57

7
Naoko Ohno v. Yuko Yasuma
(9th Cir. 2013) 723 F.3d 984............................................... 37, 39

Nat’l Collegiate Athletic Ass’n v. Tarkanian

(1988) 488 U.S. 179 ................................................................... 35

Ortiz v. Hobby Lobby Stores, Inc.

(E.D. Cal. 2014) 52 F.Supp.3d 1070 ................................... 32, 45

Our Lady of Guadalupe School v. Morrissey-Berru

(2020) 140 S.Ct. 2049 ................................................................ 44

Parsons v. Superior Court

(2007) 149 Cal.App.4th Supp. 1 ............................................... 47

People v. Garcia
(2002) 97 Cal.App.4th 847 ................................................. passim

People v. Hannon
(2016) 5 Cal.App.5th 94 ............................................................ 51

People v. Lamoureux
(2019) 42 Cal.App.5th 241 ........................................................ 51

People v. Superior Court

(2013) 215 Cal.App.4th 1279 .................................................... 51

People v. Weiss
(1999) 20 Cal.4th 1073 ........................................................ 33, 46

Pinnacle Museum Tower Ass’n v. Pinnacle Market

Development (US), LLC
(2012) 55 Cal.4th 223 ................................................................ 43

Rifkind & Sterling, Inc. v. Rifkind

(1994) 28 Cal.App.4th 1282 ...................................................... 36

Roberts v. AT&T Mobility LLC

(9th Cir. 2017) 877 F.3d 833................................... 35, 36, 38, 40

Santos v. Brown
(2015) 238 Cal.App.4th 398 ...................................................... 50

8
Sheard v. Superior Court
(1974) 40 Cal.App.3d 207 ......................................................... 17

Shelley v. Kraemer
(1948) 334 U.S. 1 ....................................................................... 39

Southern Cal. Ch. of Assoc. Builders & Contractors,

Inc. v. Calif. Apprenticeship Council
(1992) 4 Cal.4th 422 ...................................................... 28, 33, 47

Spivey v. Teen Challenge of Florida Inc.

(Fla. App. 2013) 122 So.3d 986........................................... 41, 42

State v. Deal
(Minn. 2007) 740 N.W.2d 755 .................................................. 52

State v. Lee
(Ariz. Ct. App. Jan. 13, 2011) 245 P.3d 919 ............................ 51

Thomson v. Anderson
(2003) 113 Cal.App.4th 258 ...................................................... 17

United Firefighters of Los Angeles v. City of Los

Angeles
(1991) 231 Cal.App.3d 1576 ..................................................... 58

Vasilenko v. Grace Family Church

(2017) 3 Cal.5th 1077, 1097...................................................... 48

Wall Street Network, Ltd. v. New York Times Co.

(2008) 164 Cal.App.4th 1171 .............................................. 27, 43

Young v. RemX, Inc.

(2016) 2 Cal.App.5th 630, 636 .................................................. 57

Constitutions, Statutes & Rules

Cal. Const. Art. I § 28 ........................................................ 47, 49, 50

Cal. R. Ct. 8.500(c)(1) ............................................................... 38, 48

Cal. R. Ct. 8.204(c)(1) ..................................................................... 61

Cal. R. Ct. 8.500(b) ....................................................... 12, 28, 29, 56

9
Cal. R. Ct. 8.504(b)(2) .............................................................. 12, 28

10
 I. INTRODUCTION

For all of its defamatory rhetoric, the Petition for Review

falls silent when it counts the most: It fails to explain why the

Court should grant review of an unpublished Court of Appeal

opinion summarily denying a writ challenging an order

compelling arbitration. The Petition does not assert that

review is necessary to secure a uniformity of decision. It does

not claim that the Court of Appeal lacked jurisdiction. It does

not even argue that, with respect two of the three Questions

presented, that review is warranted to settle an “important”

question of law. The Petition does not present any issue –

important or not – that needs to be “settled” by this Court, as

the Petition points to no unsettled law regarding the

enforcement of religious arbitration clauses or bearing on any

of the ancillary arguments. Furthermore, this case is not a

good “vehicle” for deciding any issue because (a) the factual

record does not support the sweeping allegations and (b) there

are procedural obstacles, such as waiver, that preclude relief.

In short, the Petition does not even make the pretense of

11
complying with the requirement of Rule 8.504(b)(2) that it

“must explain how the case presents a ground for review

under rule 8.500(b).”

These omissions are just the tip of what Petitioners are

not telling the Court. Reading the Petition, this Court would

have no idea that the Trial Court issued a 15-page, single-

spaced order finding that Petitioners had agreed to arbitrate

their claims. Petitioners don’t quote a single line from that

order. They did not mention to this Court – or the Court of

Appeal – that the Trial Court weighed the evidence and found,

“Plaintiffs are correct that the Court cannot compel an

individual to participate in a religious ritual. However,

Plaintiffs have submitted no evidence to indicate this would

happen if the arbitrations were ordered.” (6 EP 1504

(emphasis added).)1 With respect to the pejorative allegations

regarding Scientology arbitration, the Trial Court sustained

all objections to Petitioners’ sole supporting declaration,

1All citations to Petitioners’ Exhibits to Petition for Writ of

Mandate follow the Petition’s citation format.

12
finding it “filled with unsupported assumptions,

foundational deficiencies, irrelevant matters, improper

opinions, and arguments.” (6 EP 1500 (emphasis added).)

Nothing Petitioners told this Court about Scientology

arbitration, supposed “religious rituals,” and “forced”

participation in “religious services” was true as determined by

the Trial Court and unchallenged by Petitioners. The entire

predicate for the Questions presented in the Petition is false

as a matter of undisputed fact.

The pattern of misleading omissions continues with the

Petition’s legal propositions. The legal argument at the heart

of the Petition – that the Trial Court’s order violates

Petitioners’ First Amendment right to worship – ignores

decades of uncontradicted authority directly on point. Courts

have rejected Petitioners’ theory that enforcement of

arbitration provisions constitutes state action. Under contract

law, parties can enter into agreements that limit their

constitutional rights. Non-disparagement and confidentiality

agreements impose restrictions on free speech, but those

13
agreements are not void when a party no longer wants to be

bound. Court enforcement of private agreements or

arbitration awards that limit rights is not state action as to

the contracting parties. When the Trial Court ruled that

Petitioners may not proceed in civil court with their claims

because they agreed to proceed in Scientology arbitration, the

state did not compel Petitioners to do anything. They may

proceed – or not – with the arbitration as they choose. But

holding Petitioners to their agreements that they will not

proceed in civil court is not action by the state violating their

Constitutional rights. Indeed, as shown throughout, courts

routinely enforce religious arbitration agreements relying on

panels of religious authorities as arbitrators. This is not an

issue of law to be “settled.” It is long-settled and completely

unremarkable that enforcement of arbitration agreements –

including arbitration agreements with churches – is not state

action.

Petitioners final Question regards the application of

“Marsy’s Law” and a protective order. Unmentioned in the

14
Petition is that Petitioners failed to properly raise their

“Marsy’s Law” argument in the Trial Court, despite having

months to do so. In any event, Marsy’s Law, by its express

language, applies only to criminal proceedings. Petitioners

also failed to properly raise their “Protective Order” argument

in the Trial Court, and it too fails on the merits. Petitioners

mislead this Court by asserting the Protective Order applies

to the Church Defendants2 when it does not mention them or

even the word “Scientology.” Of course, neither of these issues

raises an “important” question of law to be “settled” by this

Court, as they both depend on idiosyncratic (and irrational)

arguments related to the narrow facts of this matter.

Instead of grappling with the actual facts of this matter,

and the settled law, Petitioners make a cynical bet that they

can inflame this Court with stories of what this case is not

about. From page one, they speak of sexual assault, when

2Defendants Church of Scientology International (“CSI”), Church

of Scientology Celebrity Centre International (“CC”), and Religious
Technology Center (“RTC”) are collectively referred to as the
“Church Defendants.”

15
they have sued no one for sexual assault. They protest

“religious rituals” without pointing to a single example (as the

Trial Court found). They speak of “coercion” when the Trial

Court determined the agreements were freely executed. From

the beginning, in this and in another matter already disposed

of by this Court,3 they have abused the litigation privilege to

defame the Church Defendants, and failed in every instance

to present evidence to support their outrageous allegations.

Review is only warranted on extraordinary and narrowly-

drawn grounds. The only thing extraordinary here is the

lengths to which Petitioners and their counsel will go in trying

to prejudice every court with their rejected allegations.

II. RELEVANT FACTS

A. The Parties, Their History With Each Other,

and the Agreements to Arbitrate.

The Church Defendants submit this summary of the

facts relevant to Petitioners’ background in Scientology as

3Counsel in this matter were the same counsel before this Court in
Haney v. Superior Court, S265314 (petition for review denied,
December 9, 2020). As here, Counsel in Haney argued that
enforcement of the Scientology arbitration agreements constituted
a violation of the First Amendment.

16
documented by the evidence presented to the Trial Court and

the findings of the Trial Court, as opposed to Petitioners’

improper reliance on their unverified allegations.4

CSI is a non-profit religious corporation and the “Mother

Church” of the Scientology religion. (4 EP 976.) CC is a

Church of Scientology that ministers to parishioners including

persons such as artists, politicians, leaders of industry, sports

figures, and others seeking privacy in the exercise of their

faith. (Id.) RTC is also a Church of Scientology, the central

function of which is to ensure the orthodoxy of the Scientology

religion. (Id.)

Masterson is a Scientology parishioner. He is not now,

nor has he ever been, a minister or employee of any Church

Defendant. Petitioners allege that during 2000-2003,

Masterson assaulted Petitioners Bixler, Jane Doe No. 1, and

4 The Petition cites to allegations contained in Petitioners’ FAC (1

EP 6-63) as if they are evidentiary facts. (See, e.g., Petition, pp. 9,
12.) They are not. An unverified complaint has “no evidentiary
value,” Thomson v. Anderson (2003) 113 Cal.App.4th 258, 271, and
“could not serve as an affidavit,” Sheard v. Superior Court (1974)
40 Cal.App.3d 207, 212.

17
Jane Doe No. 2. (1 EP 22, 34, 51.) These Petitioners allege

that they either knew Masterson as a romantic partner or

socially. (1 EP 21, ¶ 66; 1 EP 33, ¶ 132.) Petitioner Cedric

Bixler-Zavala (“Bixler-Zavala”) is Bixler’s husband. (1 EP 7,

¶ 3.)

Petitioners were parishioners of the Church of

Scientology. (7 DEO 1606; 1 EP 23, ¶ 75; 7 DEO 1607;1 EP 33,

¶ 130; 1 EP 50, ¶235; 1 EP 51, ¶ 245.) They executed

agreements (“Agreements”) over many years pledging their

commitment to Scientology ecclesiastical justice procedures as

a condition to participate in Scientology religious services. (6

EP 1501-1504 (Order); 7 DEO 15621568, 1608-1686

(Agreements).) Petitioners agreed that “should any dispute,

claim or controversy arise” between them and the Church

Defendants, such dispute would be resolved through a

religious arbitration according to Scientology religious

procedures. (6 EP 1501-1503; 7 DEO 1642, 1649, 1656, 1663,

1670, 1677, all at ¶ 6.d (Bixler); 7 DEO 1684, ¶ 6.d (Bixler-

Zavala); 7 DEO 1566, ¶ 6.d (Jane Doe No. 1); 7 DEO 1610,

18
1615, 1620, 1625, 1630, 1635, all at ¶ 9 (Jane Doe No. 2).)

Petitioners agreed to submit a request for arbitration to the

International Justice Chief (“IJC”) and designate one

arbitrator to hear and resolve the matter. (6 EP 1501; 6 EP

1503; 7 DEO 1642, ¶ 6.e.i, ii. (exemplar Agreement).) The

adverse party would then designate a second arbitrator, and

the two designated arbitrators would select a third. (6 EP

1643, ¶ 6.e.iii, iv.; 6 EP 1501; 6 EP 1503.) The arbitrators are

to be “Scientologists in good standing.” (6 EP 1501-1503

(Order) (quoting the Agreements).)5 The arbitrators would

then hear the dispute and make a “binding” decision. (6 EP

1501; 6 EP 1502; 7 DEO 1642 ¶ 6.e. (exemplar Agreement).)

III. PROCEDURAL HISTORY

A. Petitioners’ Lawsuit.

On August 22, 2019, Petitioners filed a Complaint

against Defendants in Los Angeles Superior Court. On

5Petitioners’ repeated claim that the arbitrators are to be

“ministers of the religion” (Petition, pp. 10, 17) is wrong. The
Petition tacitly concedes this by later stating the arbitrators must
be “‘in good standing’ with the Church of Scientology.” (Petition,
pp. 14, 29.)

19
February 28, 2020, Petitioners filed a first amended complaint

(“FAC”) against Defendants. (6 EP 1497.) Petitioners alleged,

purely on “information and belief,” that starting around 2016,

Defendants had engaged in acts of harassment against them

for accusing Masterson of committing acts of sexual assault in

2000-2003. Contrary to repeated assertions in the Petition,

Petitioners have not sued any of the Defendants for rape or

sexual assault. All of the causes of action concern alleged acts

of harassment in the past few years. (6 EP 1506.)6

The Church Defendants deny the charging allegations in

the Complaint and FAC as 100% false. Not one of the

charging allegations, all made “on information and belief,”

shows that Defendants caused or are responsible for the

harassment Petitioners supposedly experienced. And there

6Petitioners now assert that their claims are purely civil in nature
and will not “require a court to make a doctrinal finding.” (Petition,
p. 32.) That is not how they pled their claims. The FAC describes
what Petitioners allege are doctrines of the Church, including
unfounded (and untrue) allegations that they are “enemies” in the
eyes of the Church and can be targeted for retribution and
harassment. (1 EP 14-18.) Petitioners have relied on these untrue
and defamatory allegations of Church doctrine as the “evidence” to
support their claims of harassment. (4 EP 1079-1080.)

20
are no supporting facts alleged, because the allegations are

not true.

B. The Proceedings in the Trial Court and the

Masterson Criminal Case.

On April 1, 2020, the Church Defendants moved to

compel arbitration with respect to Bixler, Bixler-Zavala, Jane

Doe No. 1, and Jane Doe No. 2. (7 DEO 1521; 9 DEO 2021; 4

EP 968; 11 DEO 2517.)

On June 17, 2020, the Los Angeles District Attorney

charged Masterson with felonies against Bixler, Jane Doe No.

1, and Jane Doe No. 2, dating from 2001-2003. No criminal

charges were filed against any Church Defendant, and the

Church Defendants have never been informed that any law

enforcement agency is investigating any of the charging

allegations of the FAC.

On September 18, 2020, Masterson appeared in court in

his criminal case where the judge entered a protective order in

that case (the “Protective Order”). (4 EP 1071.) Petitioners

mischaracterize the Protective Order by asserting that it

prevents “any contact by defendant Masterson or his third

21
parties (RTC, CSI and CCI) of the Petitioners in this case.”

(Petition, p. 35.) The Protective Order does not mention

“Scientology” or any Defendant in this case other than

Masterson. (4 EP 1071.) It is not directed at generic “agents”

of Masterson, but states that Masterson “must not have

contact with the protected persons named above through a

third party, except an attorney of record.” (Id.) The Protective

Order is a standard order entered in any criminal case where

there are allegations of assault and contains no statement or

findings of “harm or harassment” by anyone. (Id.)

On September 24, 2020, Petitioners filed their

Opposition to the Motions to Arbitrate in this case. The

Opposition admitted that Petitioners intended to enter into

the Agreements, and made no claim that they signed them

under duress or coercion. (4 EP 1086:20-21.) The Opposition

did not mention any need to stay the potential arbitration.

The Opposition did not even mention “Marsy’s Law” – or the

Protective Order. (4 EP 1072-1093.)

22
 On October 19, 2020, the Church Defendants filed their

Reply briefs in support of the Motions to Arbitrate.

On October 22, 2020, Petitioners also filed an

unauthorized sur-reply in opposition to the motions to

arbitrate. In the unauthorized sur-reply, Petitioners argued

for the first time that the Court should deny the motions to

arbitrate based on 1) “Marsy’s Law” and 2) the Protective

Order issued in the Masterson criminal matter. (5 EP 1403-

1404; 11 DEO 2578-2581.) The Church Defendants filed an

objection to the unauthorized sur-reply. (11 DEO 2583-2587.)

On November 6, 2020, the Trial Court held its first

hearing on the Motions to Arbitrate. Petitioners’ counsel

raised the arguments in the unauthorized sur-reply based on

Marsy’s Law and the Protective Order in the criminal case.

The Trial Court rejected the arguments, stating that it did not

understand how a protective order prevented it from ordering

arbitration and that it was not “unusual” for civil cases to be

“brought between parties where there are stay away orders. I

don’t think this would be unusual in that respect.” (5 EP

23
1406:15-21.) The Trial Court also noted that it had not

granted leave to Petitioners to file a sur-reply, and it would

not read a sur-reply filed without leave. (5 EP 1404:17-20.)

The Trial Court held a further hearing on the motions to

arbitrate on December 18, 2020. (6 EP 1429.)

On December 30, 2020, the Trial Court issued its order

granting the Motions to Arbitrate (“Order”). (6 EP 1496.)

C. The Trial Court’s Findings in the Order

Compelling Arbitration.

In its Order granting the motions to arbitrate, the Trial

Court rejected Petitioners’ arguments that Scientology

arbitration is a “religious ritual” and that enforcement of the

Agreements violates Petitioners’ First Amendment rights. The

Trial Court found:

• Petitioners’ “evidence” that Scientology arbitration

is a “religious ritual,” that Petitioners are “enemies” of

the Church, and that they would be subject to

harassment by Scientology arbitrators was supported

only by the Declaration of Michael Rinder. (4 EP 1117,

1123 ¶ 19.) The Church Defendants objected to that

24
declaration. (5 EP 1277-97; 5 EP 1319-1339.) The Trial

Court ruled: “Upon review of the [Rinder] declaration[,]

Defendants’ objections to the declaration are

sustained. The declaration is filled with unsupported

assumptions, foundational deficiencies, irrelevant

matters, improper opinions, and arguments.” (6 EP 1500

(emphasis added).)

• The Trial Court further found that there was “no

evidence” to support Petitioners’ argument that the

arbitration would require them to participate in a

religious ritual: “On the general First Amendment

claims, Plaintiffs are correct that the Court cannot

compel an individual to participate in a religious ritual.

However, Plaintiffs have submitted no evidence to

indicate this would happen if the arbitrations

were ordered.” (6 EP 1504 (emphasis added).)

• The Trial Court credited the evidence submitted by

the Church Defendants describing Scientology

arbitration as a procedure open to non-believers:

25
 “Indeed, the declaration of Lynn Farny [Secretary of

CSI] states that there are no ceremonies, professions of

religious belief, or other religious components” as part of

the arbitration. (6 EP 1504.)

• The Trial Court found no “coercion” in violation of

the First Amendment: “There is nothing to indicate

that a condition of the arbitration agreement was

that the individual signatory must be a ‘believer’

in order to be bound by it. To the extent that the

arbitration has a religious component, that was

something agreed to by the signatory. Hence,

ordering the signatory to participate is not coercive.

Plaintiffs have not shown that ordering them to

religious arbitration would require the[m] to

practice a ritual in violation of their religious

freedoms.” (6 EP 1504 (emphases added).)

Petitioners did not challenge any of these evidentiary

rulings in their Writ Petition and do not challenge them in the

Petition for Review; therefore, any challenges to them have

26
been waived. Frittelli, Inc. v. 350 North Canon Drive, LP

(2011) 202 Cal.App.4th 35, 41; Wall Street Network, Ltd. v.

New York Times Co. (2008) 164 Cal.App.4th 1171, 1181, 1182

n.5.

D. Petitioners’ Writ Petition.

On February 23, 2021, Petitioners filed the Writ Petition

challenging the Order. The Writ Petition presented the same

arguments presented in the Petition for Review: (1) that the

Order violated Petitioners’ First Amendment rights; (2) that

the Order violated Petitioners’ rights under Marsy’s Law; and

(3) that the Order violated the Masterson Protective Order. In

opposition, the Church Defendants principally argued the

Writ Petition did not satisfy the requirements for

extraordinary writ relief, and that each of the arguments was

meritless.

E. The Court of Appeal’s Summary Denial of the

Writ Petition.

On March 9, 2021, the Court of Appeal summarily

denied the Writ Petition because “Petitioners have an

27
adequate remedy by way of appeal.” (3/9/2021 Court of Appeal

Order at 1.)

IV. THERE ARE NO GROUNDS FOR SUPREME

COURT REVIEW

“[T]he Supreme Court generally acts only where

necessary to secure uniformity of decision or to settle an

important question of law in matters of statewide impact.”

People v. Garcia (2002) 97 Cal.App.4th 847, 854; see also

Southern Cal. Ch. of Assoc. Builders & Contractors, Inc. v.

Calif. Apprenticeship Council (1992) 4 Cal.4th 422, 431 n.3 (in

bank).

A “petition [for review] must explain how the case

presents a ground for review under rule 8.500(b).” Cal. R. Ct.

8.504(b)(2).

The Petition fails to explain how the Court of Appeal’s

unpublished summary denial of the Writ Petition challenging

an order compelling arbitration presents a ground for review.

Petitioners state without support that review is warranted to

address three purported questions: the first question

supposedly presents a “novel question,” (Petition, p. 17), the

28
second a “novel issue,” (id., p. 26), and the third an “important

question,” (id., p. 34). Those first two categories – “novel

question” and “novel issue” – are not grounds for review

under Rule 8.500, subdivision (b). As to all three questions,

the Petition for Review never cites to a single case in support

of its claim that “REVIEW IS WARRANTED,” and cites to

California Rule of Court 8.500, subdivision (b), only once. The

Petition further fails to connect its stated “questions” to its

argument and never explains how or why the “questions

presented” are important questions of law or of statewide

importance. Indeed, the questions are framed with such a

high level of factual specificity that two of them are not even

presented by this case and are unlikely to ever recur. (See

Petition, pp. 10-11.) The issue of Scientology arbitration is of

interest to Petitioners’ counsel alone: there are only two

Scientology arbitration cases pending in trial courts

throughout the United States, this case and Haney v. Superior

Court, B307452 (petition denied, October 22, 2020); S265314

29
(petition for review denied, December 9, 2020), and

Petitioners’ counsel is counsel in both.

Assuming that Petitioners meant to contend review is

warranted on all three questions to “settle an important

question of law”, the argument fails for a simple reason:

Petitioners’ “important questions” are not “questions”

at all, but misstatements of the evidence found by the

Trial Court and inventions of supposed constitutional

doctrines.

The all-too-plain fact here is that this case is just about

a trial court enforcing an arbitration agreement that

unambiguously applies to the dispute at issue. That fact

presents no “important” or even “novel” question of law of

statewide importance for this Court to settle. As shown below,

the entirety of the Petition boils down to a fabrication of the

record and the law to obtain review.

///

///

30
 A. Petitioners’ First and Second Questions Do Not
Warrant Review.

1. The First and Second Questions Do Not

Concern Issues In This Matter, and Are So
Narrowly-Drawn They Likely Apply To No
Case.

The Petition’s First and Second Questions appear to rest

on the same argument: The First Amendment prohibits

courts from enforcing religious arbitration agreements when

one of the parties no longer is a member of the religion.

(Petition, pp. 17-31.) But the Petition phrases these questions

in such an inflammatory and factually incorrect manner that

neither is even present in this case.

Petitioners’ First Question: “Novel Question: 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’?” (Petition, p. 17.)

This question is not presented in this case. Petitioners’

Agreements do not “specif[y] that all arbitrators shall be

ministers of the religion.” Instead, they require that

31
arbitrators be “Scientologists in good standing,” in other

words, members of the faith. (6 EP 1501-1503 (Order) (quoting

the Agreements).)

Even as misrepresented by Petitioners, the issue of

religious qualifications for arbitrators in religious arbitrations

is not novel. In Dial 800 v. Fesbinder (2004) 118 Cal.App.4th

32, 50, the Court of Appeal affirmed the enforceability – over

objection – of a religious arbitration agreement where 1) the

arbitrators would be religious officials, and 2) the arbitration

would be based on principles of religious law, and thus

rejected the same purported First Amendment violations

Petitioners claim will result from Trial Court’s Order. In so

holding, the Court of Appeal noted: “[T]he fact three rabbis

are the arbitrators and the decision will no doubt be based on

principals of Jewish law does not bar its enforceability in

California secular courts.” Id.; See also Ortiz v. Hobby Lobby

Stores, Inc. (E.D. Cal. 2014) 52 F.Supp.3d 1070 (enforcing

employer/employee arbitration under the Institute for

32
Christian Conciliation’s Rules of Procedure for Christian

Conciliation).

Further, given its factual specificity and admitted

“novelty,” this issue could hardly be considered one of

“statewide impact” warranting review by this Court. See

Garcia, supra, 97 Cal.App.4th at p. 854; Metcalf v. Cnty. of

San Joaquin (2008) 42 Cal.4th 1121, 1129 (fact-specific issues

are not worthy of review); People v. Weiss (1999) 20 Cal.4th

1073, 1076-77 (case-specific, factual conclusions of the lower

court are not worthy of review); see also Southern Cal. Ch. of

Assoc. Builders & Contractors, Inc., supra, 4 Cal.4th at p. 431

n.3 (in bank) (“[T]his court limits its review to issues of

statewide importance”).

Petitioners’ Second Question: “Novel Issue: 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 rape to authorities?”

(Petition, p. 26.)

33
 This question as well is not present in this case. The

Arbitration Order does not “force” Petitioners to “submit to

religious services arbitration.” The Church Defendants moved

to enforce Agreements where the Petitioners agreed that, if

they ever had disputes with the Church Defendants, they

would raise those disputes in Scientology arbitration and not

in civil courts. The Arbitration Order merely enforces those

Agreements by stopping the Petitioners’ action in the Trial

Court so they may – if they chose – pursue their claims in

Scientology arbitration. (6 EP 1509-1510.) The Arbitration

Order thus does not “force” or “coerce” Petitioners to do

anything. It is entirely up to them if they continue to pursue

their claims.

In addition, given the highly factually specific phrasing

of Petitioners’ “novel issue,” it is hardly surprising that it has

not yet been addressed by California courts. Yet, the

principles in Dial 800 v. Fesbinder, supra, certainly apply. 118

Cal.App.4th at p. 50. And, its fact-specific nature and

34
admitted “novelty,” weigh against review by this Court. See

Garcia, supra, 97 Cal.App.4th at p. 854.

Finally, as set forth below, review is also not warranted

on Petitioners’ first two questions because their claim is

incorrect – the Trial Court’s Order does not violate

Petitioners’ First Amendment rights. The Petition’s “First

Amendment Argument” is meritless: it rests on a flawed legal

premise and a false factual premise.

2. Enforcing Private Arbitration Agreements

Does Not Constitute State Action.

As stated above, the meat of Petitioners’ First and

Second Questions is that enforcing the religious arbitration

Agreements violates their First Amendment rights. This

argument contradicts well-settled law that Constitutional due

process protections “do not extend to ‘private conduct

abridging individual rights.’” Nat’l Collegiate Athletic Ass’n v.

Tarkanian (1988) 488 U.S. 179, 191. Rather, “a threshold

requirement of any constitutional claim is the presence of

state action.” Roberts v. AT&T Mobility LLC (9th Cir. 2017)

877 F.3d 833, 837. “It is well established that judicially

35
enforcing arbitration agreements does not constitute state

action.” Id. at 838, n.1; Fed. Deposit Ins. Corp. v. Air Florida

Sys., Inc. (9th Cir.1987) 822 F.2d 833, 842 n. 9 (“[W]e do not

find in private arbitration proceedings the state action

requisite for a constitutional due process claim.”); Davis v.

Prudential Securities, Inc. (11th Cir. 1995) 59 F.3d 1186,

1191-1192 (“We agree with the numerous courts that have

held that the state action element of a due process claim is

absent in private arbitration cases.”); Elmore v. Chicago &

Illinois Midland Ry. Co. (7th Cir.1986) 782 F.2d 94, 96 (“[T]he

fact that a private arbitrator denies the procedural safeguards

that are encompassed by the term ‘due process of law’ cannot

give rise to a constitutional complaint.”); see also Rifkind &

Sterling, Inc. v. Rifkind (1994) 28 Cal.App.4th 1282, 1291

(assertion that court confirmation of arbitration award

violated the Constitution rested on a “fundamental fallacy. . . .

The premise misconceives the applicability of the due process

clause. That clause applies only to state action.”).

36
 Court enforcement of contracts or judgments also does

not constitute state action when claims are made concerning

the Free Exercise clause under the First Amendment or as to

other First Amendment rights. Naoko Ohno v. Yuko Yasuma

(9th Cir. 2013) 723 F.3d 984, 998-99 (rejecting challenge by a

church that foreign judgment was obtained in violation of

Free Exercise clause, and thus United States courts should

not enforce judgment: “In the context of First Amendment

challenges to speech-restrictive provisions in private

agreements or contracts, domestic judicial enforcement of

terms that could not be enacted by the government has not

ordinarily been considered state action.”).

Against this authority, the Petition does not cite a

single case holding that enforcing religious arbitration

agreements violates the First Amendment rights of the

participants. Instead, the Petition argues that “[a] court’s

decision to enforce” an agreement by the parties to consign

disputes to religious arbitration is a “delegation of a core

government function to a religious entity, and it therefore

37
violates the First Amendment.” 7 (Petition, p. 28.) In support,

the Petition cites to Board of Education of Kiryas Joel Village

School District v. Grumet (1994) 512 U.S. 687, 710 (“Kiryas

Joel”) and Larkin v. Grendel’s Den, Inc. (1982) 459 U.S. 116,

126. Both cases hold that state statutes that “delegate [a

State’s] civic authority to a group chosen according to a

religious criterion” violate the Establishment Clause. Kiryas

Joel, supra, 512 U.S. at p. 698; Larkin, supra, 459 U.S. at p.

123. Here, the Petitioners’ Arbitration Agreements with

the Church Defendants designate the forum for their dispute.

As set forth above, “[i]t is well established that judicially

enforcing arbitration agreements does not constitute state

action.” Roberts, supra, 877 F.3d at p. 838, n.1. Indeed, no

religious arbitration agreement could be enforced under

Petitioners’ argument, yet courts routinely enforce them. See

Section IV.A.3., infra.

7Petitioners did not make this argument to the Court of Appeal.

Therefore, this Court should not consider it. Cal. R. Ct. 8.500(c)(1).

38
 Next, the Petition claims “[n]ot every private agreement

into which a party knowingly enters may be enforced by a

court.” (Petition, p. 30.) In support, the Petition cites to

Shelley v. Kraemer (1948) 334 U.S. 1, 19-22, which is not

persuasive or controlling here. See Golden Gateway Ctr. v.

Golden Gateway Tenants Assn. (2001) 26 Cal.4th 1013, 1034

(Shelley v. Kraemer has been limited to the facts of racially

restrictive covenant cases); see also Naoko Ohno, supra, 723

F.3d at pp. 998-99 (“Shelley’s attribution of state action to

judicial enforcement has generally been confined to the

context of discrimination claims under the Equal Protection

Clause”) (collecting authority). In declining to extend Shelley

v. Kraemer to a case involving the free speech clause of the

California Constitution, the California Supreme Court

explained that such extension “would effectively eviscerate

the state action requirement.” Golden Gateway Ctr., supra, 26

Cal.4th at p. 1034; see also Naoko Ohno, supra, 723 F.3d at p.

999 (“If, for constitutional purposes, every private right were

transformed into governmental action by the mere fact of

39
court enforcement of it, the distinction between private and

governmental action would be obliterated.”).

Because there is no state action, “a threshold

requirement of any constitutional claim,” the Court need not

reach the merits of Petitioners’ First Amendment argument.

See Roberts, supra, 877 F. 3d at p. 845, n.8.

3. Petitioners’ Agreement to Participate in

Religious Arbitration Waives Their First
Amendment Challenge.

Petitioners’ First Amendment Argument suffers from an

additional legal hurdle: a party’s express consent to religious

arbitration precludes constitutional challenges and

constitutes “a knowing and voluntary waiver of their rights to

pursue litigation in a secular district court.” Encore Prods.,

Inc. v. Promise Keepers (D. Col. 1999) 53 F.Supp.2d 1101,

1112-13. In Encore, the parties had agreed to arbitrate

disputes using “the Holy Scriptures (the Bible)” as “supreme

authority.” Id. at 1111. The plaintiff argued against

enforcement of the arbitration agreement on the grounds that

the underlying agreement had terminated, the events subject

40
to arbitration occurred after termination, and that court-

ordered participation in the arbitration violated the Free

Exercise Clause. Id. at 1112. The court rejected the First

Amendment argument, holding, “[a]lthough it may not be

proper for a district court to refer civil issues to a religious

tribunal in the first instance, if the parties agree to do so,

it is proper for a district court to enforce their contract.”

Id. at 1112-1113 (emphasis added); Elmora Hebrew Ctr., Inc.

v. Fishman (1991) 125 N.J. 404, 416-17 (New Jersey Supreme

Court declining to reach Free Exercise challenge to religious

tribunal because party’s consent to the tribunal precludes

such a challenge); Spivey v. Teen Challenge of Florida Inc.

(Fla. App. 2013) 122 So.3d 986, 991-92, 994-95 (rejecting

representative of contracting party’s challenge to religious

arbitration because representative “stands in the shoes” of the

party who expressly consented to the procedures).

The Petition asserts, “[t]he fact that Petitioners may

have voluntarily agreed to abide by the terms of the Religious

Services Agreement is inconsequential.” (Petition, p. 30.)

41
Petitioners cite no authority in support of this claim, and the

authority cited above, which Defendants cited in the Trial

Court and the Court of Appeal, (5 EP 1250-1251; Opposition

to Writ Petition, pp. 49-50), holds directly to the contrary.

Encore Prods., Inc., supra, 53 F.Supp.2d at p. 1112-13; Elmora

Hebrew Ctr., Inc., supra, 125 N.J. at p. 416-17; Spivey, supra,

122 So.3d at p. 991-92, 994-95. Indeed, if Petitioners’ First

Amendment argument held water, courts could never enforce

religious arbitration clauses over the objections of a party, but

they routinely do. See id.

4. Petitioners’ First Amendment Argument Is

Factually Unsupported.

This Court could deny the Petition for Review alone on

the grounds that there is no legal basis for the First

Amendment Argument. But even if, contrary to the case law

on state action and contractual enforcement, there were a

legal basis for the argument, it would still fail because there is

no factual basis for the argument. The entire First

Amendment Argument is premised on Petitioners’

unsupported assertion that the Agreements “force[]

42
participation in a religious ritual.” (See, e.g., Petition, pp. 19,

26; see also id. at pp. 17, 19, 20, 21, 24, 26, 27.) As set forth

above, the Trial Court determined that Petitioners submitted

“no evidence” that Scientology arbitration is a “religious

ritual,” (6 EP 1504 (emphasis added)), and as the parties

opposing arbitration, Petitioners had to prove any defense to

enforcement with competent evidence, Pinnacle Museum

Tower Ass’n v. Pinnacle Market Development (US), LLC (2012)

55 Cal.4th 223, 236. The Petition does not acknowledge –

much less challenge – this evidentiary ruling of the Trial

Court. It remains undisturbed on appeal. Frittelli, supra, 202

Cal.App.4th at p. 41; Wall Street Network, Ltd., supra, 164

Cal.App.4th at pp. 1181, 1182 n.5.

Furthermore, while the Petition never explains what

“religious ritual” means, the Church Defendants submitted

evidence that non-adherents of the faith may participate in

Scientology arbitration and there are no professions of faith or

religious ceremonies. (7 DEO 1555-1556, ¶ 23; 9 DEO 2055-

2056, ¶ 23 (Farny Decl.); see also 6 EP 1504 (citing Farny

43
Decl. ¶ 23).) Even if Petitioners had proffered competent

evidence on this issue in the Trial Court, the Church

Defendants’ evidence and position would be entitled to

deference on this issue of faith and doctrine. See Kedroff v. St.

Nicholas Cathedral of Russian Orthodox Church in N. Amer.

(1952) 344 U.S. 94, 116; Our Lady of Guadalupe School v.

Morrissey-Berru (2020) 140 S.Ct. 2049, 2066 (in determining if

an individual is a “minister” of a particular religion, “[a]

religious institution’s explanation of the role of such

employees in the life of the religion in question is important”

because “[i]n a country with the religious diversity of the

United States, judges cannot be expected to have a complete

understanding and appreciation” of the issue).

Petitioners know they have a problem and try to create a

record for their “ritual” argument by pointing out that

Scientology arbitration requires disputes to be resolved in

accordance with Scientology principles and that the

arbitrators are to be members of the Scientology faith.

(Petition, p. 19.) The argument proves far too much. Private

44
arbitration agreements providing that decisions will be guided

by religious tenets and arbitrators will be members of a

certain faith are enforceable; no angst is expressed by courts

that enforcement of such provisions amounts to forced

worship. See, e.g., Dial 800, supra, 118 Cal.App.4th at p. 50

(affirming enforceability of judgment to be rendered in

religious arbitration where arbitrators were rabbis and

decision would be based on Jewish law); Ortiz, supra, 52 F.

Supp. 3d 1070 (enforcing employer/employee arbitration

under the Institute for Christian Conciliation’s Rules of

Procedure for Christian Conciliation); Easterly v. Heritage

Christian Schools, Inc. (S.D. Ind. Aug. 26, 2009) No. 1:08-cv-

1714, 2009 WL 2750099, at *1 (teachers at Christian school

agreed to resolution of differences by “following the biblical

pattern of Matthew 18:15-17,” and waived right to file

lawsuit); Gen. Conference of Evangelical Methodist Church v.

Evangelical Methodist Church of Dalton, Georgia, Inc. (N.D.

Ga. 2011) 807 F. Supp. 2d 1291, 1294 (enforcing church rules

that “believers should resolve disputes among themselves or

45
within the Church wherever possible,” and “by means of

Christian conciliation, mediation or arbitration”); Jenkins v.

Trinity Evangelical Lutheran Church (Ill. App. 2005) 825 N.E.

2d 1206, 1212-13 (enforcing Lutheran Church doctrine

mandating church-based arbitration of disputes); Abd Alla v.

Mourssi (Minn. Ct. App. 2004) 680 N.W.2d 569 (confirming

arbitration award under Islamic law).

B. Petitioners’ Third Question Does Not Warrant

Review.

With respect to the Third Question, the Petition for

Review claims that “[r]eview is warranted to ‘settle an

important question of law’”, namely “[w]here there is a

criminal protective order in place and the California

Constitution guarantees protection from harassment, are rape

victims protected from being forced into a religious services

arbitration with the perpetrator or his agents.” (Petition, p.

34.) Again, this question is so factually-specific it could not

possibly be an “important” question of law or an issue of

statewide importance. See Garcia, supra, 97 Cal.App.4th at

854; Metcalf, supra, 42 Cal.4th at 1129; Weiss, supra, 20

46
Cal.4th at pp. 1076-77; Southern Cal. Ch. of Assoc. Builders &

Contractors, Inc., supra, 4 Cal.4th at 431 n.3.

Nonetheless, despite the framing of the “important

question,” Petitioners actually argue that participation in the

arbitration would violate their rights under Marsy’s Law of

the California Constitution and would violate the Masterson

Protective Order.8 Neither contention is correct.

As a threshold matter, Petitioners did not properly raise

these arguments in the Trial Court and, therefore, they were

not properly before the Court of Appeal. Medical Bd. of Calif.

v. Superior Court (1991) 227 Cal.App.3d 1458, 1462 (on a writ

petition, the Court’s “concern is whether the respondent court

acted properly on the record before it.”) (emphasis added);

Parsons v. Superior Court (2007) 149 Cal.App.4th Supp. 1, 6-7

(declining to consider evidence and argument presented for

8 Petition, p. 35 (“arbitration cannot be compelled against the

Petitioners as to do so would violate their constitutional rights as
victims under California Constitution article I, § 28, section (b),
commonly known as Marsy’s law) & (“[m]oreover, the Court has
issued a protective order in the criminal case to prevent any
contact by defendant Masterson or his third parties (RTC, CSI and
CCI) of the Petitioners in this case, which would be violated if the
Court compels arbitration.”).

47
the first time in writ proceedings) (disagreed with on other

grounds by Borsuk v. Appellate Division of Superior Court

(2015) 242 Cal.App.4th 607). Thus, the arguments should not

be considered by this Court. Vasilenko v. Grace Family

Church (2017) 3 Cal.5th 1077, 1097 (declining to reach an

issue not presented to the trial court, although the parties

briefed it before the court of appeal); see also Cal. R. Ct.

8.500(c)(1).

Nevertheless, the arguments are baseless and do not

present a ground for review. Neither Marsy’s Law nor the

Protective Order are implicated – much less violated – by

Petitioners pursuing their claims in arbitration, as ordered.

1. Marsy’s Law Does Not Apply to This Case.

Petitioners assert that Marsy’s Law prohibits the

arbitrations from proceeding because, they claim, it bars any

discovery or questioning of Petitioners. (Petition, pp. 35, 37.)

Marsy’s Law limits the victims’ rights it affords to cases

within the criminal justice system. The opening section states

that the “rights of victims of crime and their families in

48
criminal prosecutions are a subject of grave statewide

concern.” Cal. Const. Art. I § 28(a)(1) (emphasis added). The

following section provides: “Victims of crime are entitled to

have the criminal justice system view criminal acts as

serious threats to the safety and welfare of the people of

California. The enactment of comprehensive provisions and

laws ensuring a bill of rights for victims of crime, including

safeguards in the criminal justice system fully protecting

those rights and ensuring that crime victims are treated with

respect and dignity, is a matter of high public importance.”

Cal. Const. Art. I § 28(a)(2) (emphasis added).

Section 28(a)(3) is Marsy’s Law’s operative section and

enumerates the 17 substantive rights provided to victims.

This Section specifically frames these rights as occurring in

the criminal justice system: “The rights of victims

pervade the criminal justice system. These rights include

personally held and enforceable rights described in

paragraphs (1) through (17).” Cal. Const. Art. I § 28(a)(3)

(emphasis added). Thus, by its plain wording, Marsy’s Law

49
enumerates only rights afforded to victims “in the criminal

justice system.”

Those enumerated rights are provided to “victims” – not

“plaintiffs” – and contemplate rights to be enforced as to a

criminal defendant. These rights include, for instance, the

rights of the victim’s safety to be considered in fixing bail

conditions of the defendant, the right of the victim to

reasonable notice of the arrest of and charges against the

defendant, and the right to be informed of the conviction and

incarceration of the defendant. Cal. Const. Art. I § 28(a)(3), ¶¶

3, 6, & 12.

California courts have applied the clear language of

Marsy’s Law to hold that it is limited to proceedings in the

criminal justice system against criminal defendants. Santos v.

Brown (2015) 238 Cal.App.4th 398, 420-421 (declining to

apply Marsy’s Law to executive clemency proceedings because

they did not qualify as criminal justice proceedings: “[E]ven if

clemency could qualify as a ‘proceeding,’ it would not

necessarily be viewed as a proceeding in the ‘criminal

50
justice system’ toward which Marsy’s Law is

directed . . .”) (emphasis added). Review of California

authority shows courts applying Marsy’s Law in criminal

proceedings only: People v. Hannon (2016) 5 Cal.App.5th 94,

101-08; People v. Lamoureux (2019) 42 Cal.App.5th 241, 272-

73; People v. Superior Court (2013) 215 Cal.App.4th 1279,

1300-01.

Petitioners cite to out-of-state authority to support their

argument that Marsy’s Law supposedly prohibits any effort by

a civil defendant in a civil case or arbitration in California to

examine or depose a civil plaintiff regarding her allegations or

from otherwise defending itself against the plaintiff’s

allegations. None of their authority supports this

extraordinary argument. Not one of Petitioners’ cited out-of-

state cases applies Marsy’s law. See State v. Lee (Ariz. Ct.

App. Jan. 13, 2011) 245 P.3d 919 (Petition, p. 37) (applying

Arizona’s Victim Bill of Rights, which does not contain an

express limitation that it concerns criminal justice

proceedings); Lizarraga v. City of Nogales Arizona (D. Ariz.

51
Nov. 29, 2007) No. CV- 06-474 TUC CDB, 2007 WL 4218972,

at *3 (Petition, p. 36) (not considering application of Marsy’s

Law, or any similar victims’ rights statute, to a civil

proceeding); State v. Deal (Minn. 2007) 740 N.W.2d 755

(Petition, pp. 36-37) (not considering Marsy’s Law or any

analogous “victims’ rights” law).

2. The Arbitration Order Does Not Violate the

Protective Order in the Masterson Case.

The Petition asserts that “the Court has issued a

protective order in the criminal case to prevent any contact by

defendant Masterson or his third parties (RTC, CSI and CCI)

of the Petitioners in this case, which would be violated if the

Court compels arbitration.” (Petition, p. 35.) The argument is

false, unsubstantiated, speculative, and baseless.

First, the Petition mischaracterizes the Protective

Order. The Protective Order does not mention RTC, CSI, or

CC. (4 EP 1070.) Further, Petitioners’ claim that RTC, CSI,

and CC are Masterson’s agents, (see, e.g., Petition, p. 34), is

52
false and unsupported.9 In any event, the Protective Order is

not even directed at “agents” of Masterson directly, but

prohibits him from using third parties (excluding attorneys) to

contact the protected persons. Petitioners make no showing

here (because they can’t) that Masterson is using the Church

Defendants to contact anyone on his behalf. Furthermore, the

Protective Order is a standard order entered in any criminal

case where there are allegations of assault, (4 EP 1070), and

contains no statement or findings of “the irreparable harm

9 There is no evidence in the record that Masterson and the Church

Defendants are each other’s agents. None of the Petition’s citations
support this claim. Some of the Excerpts of Record that Petitioners
cite in “support” – 11 EP 1250, 5 EP 1220, 5 EP 1247, 5 EP 1290,
and 5 EP 1308 – do not even mention Masterson. The Petition also
cites to 6 EP 1509, but that is the Trial Court’s Order, which
correctly notes that because Plaintiffs have alleged that Masterson
is an agent of the Church Defendants, the law permits him to
invoke the arbitration provisions. Finally, the Petition cites to 5 EP
1314, (Petition, p. 14), which states only that “Daniel Masterson is
not a third party under CCP Section 1281.2(c).” (5 EP 1314.) It
makes no statement regarding agency. Further, the Church
Defendants and Masterson have never admitted that they are each
other’s agents – they are not – and the Trial Court did not find that
they are. Rather, the Church Defendants argued that Petitioners’
allegations and arguments that Masterson is the Church
Defendants’ agent brought him within the scope of the arbitration
provisions, (7 DEO 1535:10-19; 9 DEO 2035:4-9; 11 DEO 2570:9-
18), and the Trial Court accepted this argument, (6 EP 1509).

53
Petitioners’ [sic] would experience by being forced to interact

with defendant Masterson,” (see Petition, p. 23 (making this

claim without support)). Finally, the Protective Order

Argument is inapplicable to the Order compelling arbitration

of Petitioner Bixler-Zavala’s claims for the independent

reason that the Protective Order does not include him. (4 EP

1070.) The Petition completely fails to acknowledge this fact.

Second, the Petition does not explain how the Protective

Order “would be violated if the Court compels arbitration.”

(See Petition, pp. 35, 15.) As the Trial Court stated when

Petitioners’ counsel improperly raised the issue at oral

argument on the Motions to Arbitrate: “Well, I would have to

be convinced that [the Protective Order] somehow prevents

me from ordering arbitration . . . There are civil cases that are

brought between parties where there are stay away orders. I

don’t think this would be unusual in that respect.” (5 EP

1406:15-21.) While the Petition claims that Petitioners would

be forced to appear in the arbitration “without any reasonable

54
conditions to protect them,” they cite no evidence in support of

this claim. (Petition, p. 38.)

In the end, the argument is entirely pretextual and

premature. Petitioners point to no violation of the Protective

Order. The potential for a violation of a protective order

always exists, and that does not stop cases from going

forward. The potential for contact or confrontation between

Petitioners and Masterson – most likely initiated by

Petitioners – is in no way unique to the arbitral forum and

would exist equally in the civil proceedings (had arbitration

not been ordered).

Finally, the potential for contact between Masterson and

Petitioners is of their own making. Petitioners filed this civil

action naming Masterson as a defendant, and continued to

pursue Masterson’s deposition after the entry of the

Protective Order. (5 EP 1204-1205; 5 EP 1216.) Petitioners

believed Masterson could be deposed without violating the

55
Protective Order; there is no reason to treat proceeding with

the arbitration any differently.10

C. Petitioners’ Claims of “Irreparable Harm” Do

Not Warrant Review.

Aside from its meritless claims of violation of

Petitioners’ constitutional rights, the Petition asserts review

is warranted to avoid miscellaneous “irreparable harm.”

(Petition, pp. 20-22.) Citing the standard for writ review – not

the standards for review by this Court – the Petition argues

that Petitioners will be irreparably harmed by the

“unreasonable financial burden” of being “required to proffer

their case twice” and their participation in “unnecessary trial

proceedings.” (Petition, pp. 21-22.) This is not a statutory

ground for review by this Court, Cal. R. Ct. 8.500(b), and this

individualized and case-specific issue is not worthy of review

by this Court. See Garcia, supra, 97 Cal.App.4th at p. 854;

Metcalf, supra, 42 Cal.4th at p. 1129.

10Indeed, Petitioners’ counsel has indicated Petitioners’ intent to

proceed specifically against Masterson if the arbitrations are
not stayed. (11 DEO 2735:6-10.)

56
 Even if expense was a ground for review, which it is not,

Petitioners did not make the required showing in the Court of

Appeal and do not make any showing here.

For instance, Scientology arbitration is free. The

Agreements at issue contain no provision requiring

Petitioners to pay anything for their arbitration. See Young v.

RemX, Inc. (2016) 2 Cal.App.5th 630, 636 n.4 (arbitration not

“unduly time consuming or expensive” for employee where

employer paid arbitrator’s fees and employee required to only

pay $200 filing fee). And the mere fact that prosecuting a case

takes time and money is not “irreparable harm” and does not

warrant granting a petition for writ of mandate. Mitchell v.

Superior Court of Cal. In & For Los Angeles Cty. (1950) 98

Cal.App.2d 304, 305; Lohr v. Superior Court of Cal. In & For

Los Angeles Cty. (1952) 111 Cal.App.2d 231, 235.

Petitioners’ generic arguments regarding duplicative

proceedings absent writ relief would apply to every petition for

writ review of an order compelling arbitration. Petitioners fail

to show the “unusual circumstances” that might warrant writ

57
review of an order granting arbitration. See Independent Assn.

of Mailbox Center Owners, Inc. v. Superior Court (2005) 133

Cal.App.4th 396, 405.

D. Petitioners’ Claims That The Issues Will “Evade

Review” Are Unfounded.

Finally, the Petition asserts that review is warranted

because absent “writ review” the issues will “evade review.”

(Petition, pp. 24-25, 34.) The claim is incorrect as a matter of

law. As the Court of Appeal Order states, “Petitioners have an

adequate remedy by way of appeal if the trial court enters an

order confirming an adverse arbitration award. (Felisilda v.

FCA US LLC (2020) 53 Cal.App.5th 486, 495; Atlas

Plastering, Inc. v. Superior Court (1977) 72 Cal.App.3d 63, 67

[“The preferred procedure is to proceed by arbitration and

attack confirmation on appeal.”].)” (3/9/2021 Court of Appeal

Order at 1-2.); see also United Firefighters of Los Angeles v.

City of Los Angeles (1991) 231 Cal.App.3d 1576, 1582 (“A

party does not waive his right to attack the order [compelling

arbitration] by proceeding to arbitration; the order is

reviewable on appeal from a judgment confirming the

58
award.”); Kowis v. Howard (1992) 3 Cal.4th 888, 898 (a

summary denial “does not establish law of the case, the

parties can await a later appeal to present that and all other

issues”). Petitioners do not explain how or why this finding of

the Court of Appeal is incorrect or how the issues will “evade

review” if the arbitration proceeds. As the Court of Appeal

correctly held, Petitioners can appeal the Order compelling

arbitration after the arbitration concludes; Petitioners can

raise their First Amendment argument (and try to raise their

untimely Marsy’s Law and Protective Order arguments) in

that appeal. At that time, the Court of Appeal will consider all

three arguments – or properly deem two of them waived for

failure to properly raise them in the Trial Court.

V. CONCLUSION

For the foregoing reasons, the Petition should be denied.

59
Dated: April 6, 2021 WINSTON & STRAWN LLP

By:
William H. Forman

Attorneys for Defendants and

Real Parties in Interest
Church of Scientology
International & Celebrity
Centre International

Dated: April 6, 2021 JEFFER MANGELS

BUTLER & MITCHELL
LLP

By:
Matthew D. Hinks

Attorneys for Defendant and

Real Party in Interest
Religious Technology Center

60
 CERTIFICATE OF WORD COUNT

Pursuant to Rule 8.204(c)(1) of the California Rules of

Court and in reliance on the word count of the computer

program used to prepare this Preliminary Opposition, counsel

certifies that the text of this brief was produced using 13 point

font and contains 8,323 words.

Dated: April 6, 2021 WINSTON & STRAWN LLP

By: ~ ~
William H. Forman

Attorneys for Defendants and

Real Parties in Interest
Church of Scientology
International & Celebrity
Centre International

Dated: April 6, 2021 JEFFER MANGELS

BUTLER & MITCHELL
LLP

By:
Matthew D. Hinks

Attorneys for Defendant and

Real Party in Interest
Religious Technology Center

61
 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 333 South Grand Avenue, Los

Angeles, CA 90071-1543. On this date, I served the

interested parties in this action the within documents:

DEFENDANTS’ ANSWER TO PETITION FOR REVIEW

FROM AN ORDER DENYING WRIT REVIEW via the

Court’s online True Filing system as follows:

Robert W. Thompson
Thompson Law Offices
700 Airport Boulevard, Suite 160
Burlingame, CA 94019
Email: bobby@tlopc.com

Marci A. Hamilton
36 Timber Knoll Drive
Washington Crossing, PA 18977
Email: hamilton.marci@gmail.com

Andrew Brad Brettler

Lavely & Singer
2049 Century Park East
Suite 2400
Los Angeles, CA 90067
Email: abrettler@lavelysinger.com

62
 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 333 South Grand Avenue, Los

Angeles, CA 90071-1543. On this date, I forwarded the

within documents: DEFENDANTS’ ANSWER TO

PETITION FOR REVIEW FROM AN ORDER

DENYING WRIT REVIEW by U.S. Mail to:

Los Angeles County Superior Court (via USPS)

Central District, Stanley Mosk Courthouse, Dept. 37
111 North Hill Street
Los Angeles, CA 90012

Executed at Pasadena, California on April 6, 2021.

Pamela Tanigawa

63
 Supreme Court of California
Jorge E. Navarrete, Clerk and Executive Officer of the Court
Electronically FILED on 4/6/2021 by Karissa Castro, Deputy Clerk

PROOF OF SERVICE
STATE OF CALIFORNIA
Supreme Court of California
STATE OF CALIFORNIA
Supreme Court of California
Case Name: BIXLER v. S.C. (CHURCH OF SCIENTOLOGY INTERNATIONAL)
Case Number: S267740
Lower Court Case Number: B310559

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

2. My email address used to e-serve: WHForman@winston.com

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

Title(s) of papers e-served:

Filing Type Document Title
ANSWER TO PETITION FOR REVIEW (FEE 2021.04.06 CSI CC and RTC - ANSWER TO PETITION
PREVIOUSLY PAID) FOR REVIEW
Service Recipients:
Person Served Email Address Type Date / Time
William Forman WHForman@winston.com e-Serve 4/6/2021 6:49:37 PM
Winston & Strawn LLP
150477
Robert Thompson bobby@tlopc.com e-Serve 4/6/2021 6:49:37 PM
Thompson Law Offices, P.C.
250038
Marci A. Hamilton hamilton.marci@gmail.com e-Serve 4/6/2021 6:49:37 PM

Andrew Brad Brettler abrettler@lavelysinger.com e-Serve 4/6/2021 6:49:37 PM

262928
Peggy Dayton pedayton@winston.com e-Serve 4/6/2021 6:49:37 PM

Matt Hinks mhinks@jmbm.com e-Serve 4/6/2021 6:49:37 PM

200750

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.

4/6/2021
Date

/s/William Forman
Signature
Forman, William (150477)
Last Name, First Name (PNum)

Winston & Strawn LLP

Law Firm