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Lopez v. Watchtower Bible & Tract Society of New York, Inc.

Court of Appeal of California, Fourth Appellate District, Division One

April 14, 2016, Opinion Filed

D066388

Opinion

 [**162]  HALLER, Acting P. J.—Jose Lopez sued the national Jehovah's Witnesses organization, the Watchtower Bible and Tract Society of New York, Inc. (Watchtower), alleging his Bible instructor sexually abused him in 1986 when he was a child. Lopez asserted several legal theories, including failure to warn, negligent supervision, and negligent hiring/retention. After contentious discovery disputes, the court issued two discovery orders against Watchtower: (1) compelling the deposition of an individual (Gerrit Lösch) who the court found was a “managing agent” of Watchtower and (2) ordering the production of documents in Watchtower's files pertaining to other perpetrators of child sexual abuse. When Watchtower failed to comply with these orders, the court granted Lopez's motion for monetary [***2]  and terminating sanctions, struck Watchtower's answer, and entered Watchtower's default.1

On appeal, Watchtower challenges the validity of the discovery orders and contends the court abused its discretion in failing to impose lesser sanctions. We reject Watchtower's challenges to the document production order, but conclude the court erred in ordering Watchtower to produce Lösch for his deposition. The factual record does not support the court's finding that Lösch was Watchtower's managing agent and therefore the court  [**163]  erred in sanctioning Watchtower for Lösch's nonattendance at the deposition. (See Code Civ. Proc., §§ 2025.280, 2025.450.)2 We additionally conclude that under the particular circumstances of this case, the court erred in issuing terminating sanctions as the initial remedial measure without first attempting to compel [*573]  compliance with its discovery orders by using lesser sanctions or by imposing evidentiary or issue sanctions.

Accordingly, we reverse the order compelling the Lösch deposition and [***3]  the entry of default based on the terminating sanctions. We remand for the court to consider the appropriate sanctions for Watchtower's violation of the document production order. The initial measure should be a remedy that is less onerous than a terminating sanction.

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246 Cal. App. 4th 566 *; 201 Cal. Rptr. 3d 156 **; 2016 Cal. App. LEXIS 284 ***

JOSE LOPEZ, Plaintiff and Respondent, v. WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., Defendant and Appellant.

Subsequent History: Time for Granting or Denying Review Extended Lopez v. Watchtower Bible & Tract Soc'y of N.Y., 2016 Cal. LEXIS 7401 (Cal., July 18, 2016)

Review denied by, Request denied by Lopez v. Watchtower Bible and Tract Society of New York, Inc.., 2016 Cal. LEXIS 6755 (Cal., July 27, 2016)

Prior History:  [***1] APPEAL from an order of the Superior Court of San Diego County, No. 37-2012-00099849-CU-PO-CTL, Joan Lewis, Judge.

Disposition: Reversed.

CORE TERMS

documents, deposition, congregation, discovery, requests, managing agent, Recommendation, orders, terminating sanctions, deponent, production of documents, sexual abuse, trial court, files, sanctions, parties, sexual abuse of child, religious, contends, church, child abuse, third party, molestation, rights, perpetrators, attend, penitential, requested documents, service department, declaration

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Judicial Officers, Referees, Determinations, Findings & Reports, Discovery & Disclosure, Discovery, Evidence, Presumptions, Particular Presumptions, Regularity, Discovery, Relevance of Discoverable Information, Remedies, Damages, Punitive Damages, Inferences & Presumptions, Inferences, Privileged Communications, Burdens of Proof, Allocation, Burden Shifting, Privileges, Clergy Privilege, Elements, Attorney-Client Privilege, Scope, Constitutional Law, Fundamental Freedoms, Freedom of Religion, Free Exercise of Religion, Privileges, Methods of Discovery, Depositions, Subpoenas, Sanctions, Pretrial Sanctions, Misconduct During Discovery, Business & Corporate Law, Authority to Act, Business Transactions, Management, Governments, Courts, Judicial Precedent, Corporate Governance, Directors & Officers, Scope of Authority, Business & Corporate Compliance, Corporations, Directors & Officers, Legislation, Interpretation, Fundamental Rights, Procedural Due Process, Scope of Protection, Disclosure, Sanctions, Trials, Jury Trials, Jury Instructions