Robin GEORGE, et al., Plaintiffs, Respondents and Cross–Appellants, v. INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF CALIFORNIA, etc., et al., Defendants, Appellants and Cross–Respondents.
Plaintiff Robin George and her mother, Marcia George, brought this action against four corporate entities of the International Society for Krishna Consciousness (ISKCON) 1 and two individual Krishna officials 2 alleging the defendants “brainwashed” Robin into joining the Krishna movement and thereafter conspired to conceal her from her parents. A jury agreed, awarding the Georges compensatory and punitive damages in excess of $32 million, a figure which was later substantially reduced by the trial court. Robin's compensatory award in excess of $1.8 million included damages for false imprisonment, intentional infliction of emotional distress, wrongful death and libel. Marcia George's $1,510,000 compensatory award was based on emotional distress and libel.
In our first opinion in this case filed in August 1989, we generally concluded that defendants' principal acts constituted torts against Marcia George but not against Robin. We accordingly reversed the judgment in favor of Robin to eliminate the damages awarded as to all causes of action except the cause of action for wrongful death. At the same time, we rejected defendants' multi-faceted attacks on the compensatory award in favor of Marcia based on libel and intentional infliction theories. We also rejected defendants' claims of evidentiary and jurisdictional error as well as assertions that the amount of punitive damages awarded was excessive.
On petition to the California Supreme Court by both parties, the court denied review but ordered our opinion depublished. Defendants then filed a petition for certiorari in the United States Supreme Court arguing, among other things, that the punitive damage award in this case violated due process requirements. Defendants' petition was held pending the Court's decision in Pacific Mut. Life Ins. Co. v. Haslip (1991) 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1, a case which upheld Alabama's system for imposing punitive damages. Following the filing of Haslip, the Court granted defendants' petition, vacated our original opinion and remanded the case to us to reconsider in light of Haslip. 499 U.S. 914, 111 S.Ct. 1299, 113 L.Ed.2d 234. Shortly after the case was returned to us, the California Supreme Court filed its own significant punitive damage decision. In Adams v. Murakami (1991) 54 Cal.3d 105, 284 Cal.Rptr. 318, 813 P.2d 1348, the court held that evidence of a defendant's financial condition is necessary to support an award of punitive damages and that the plaintiff bears the burden of producing such evidence.
As to the compensatory award, with minor modifications not affecting the result, we now reaffirm the conclusions we reached in our initial opinion. As to punitive damages, however, on the authority of Adams v. Murakami we reverse the judgment in favor of Marcia. We remand for a limited retrial as to the amount of punitive damages.
FACTUAL AND PROCEDURAL BACKGROUND
By most standards of American culture, Robin George was a normal fourteen year old in the summer of 1974. The George family had moved to Cypress, California when Robin was two years old. (3 RT 438.) * In elementary school Robin was enrolled in a program for mentally gifted children. (3 RT 448; 7 RT 1139.) In junior high school she received above average grades and was editor of the school newspaper. (7 RT 1154.)
While Robin was growing up, the Georges attended a local Lutheran church where Marcia taught Sunday school. Robin was confirmed in the Lutheran church in 1973. (3 RT 481; 7 RT 1163.) At about this same time, Robin talked with her parents about investigating other religions. The Georges asked her to go ahead with her confirmation but assured her she was free to inquire into other religious faiths afterwards. (7 RT 1165.) As a result, in early 1974, Robin investigated various beliefs by going to Catholic, Greek Orthodox, and Baptist churches and a Jewish synagogue, among others. (7 RT 1165–1166.)
In the spring of 1974, Jim George was diagnosed as having a weak heart. Concerned about her father, Robin began extensive reading on the relationship between exercise, diet and heart condition. She prepared special meals for him and enrolled with him in a Yoga class. (3 RT 478–479; 7 RT 1161–1162.)
Initial Contacts With the Krishnas
Following her completion of ninth grade in 1974, Robin's best friend was 16 year-old Caron Dempsey. Caron had an 18 year-old boyfriend, John Herger. (7 RT 1169; 17 RT 3351.) One day in July, Robin was planning to go to the beach with Caron and John. Caron suggested instead they visit the Hare Krishna temple in Laguna Beach. John dropped the two girls off. (7 RT 1169–1171.) Inside the temple Robin and Caron sat down and meditated. They thought “that's what you should do in a temple.” (7 RT 1185.) As the girls were getting ready to leave, a woman dressed in a sari approached, welcomed them, and insisted they eat some mashed avocados and dates which she referred to as “prasadam.” The woman also invited the girls to return to the temple the following Sunday for a “love feast.” (7 RT 1194–1196.)
Robin had no intention of returning to the temple. The following week, however, Caron came to Robin's house “dressed like a Hare Krishna.” (7 RT 1197–1198.) Caron told Robin she had spent the night at the temple and had decided to join the Hare Krishnas. Robin tried unsuccessfully to talk Caron out of her decision. A week later Robin agreed to go to the temple with Caron to learn more about the group. (7 RT 1205–1206.) Beginning in August, Robin visited the temple weekly, usually on Sundays. At first she talked informally with various Krishna devotees and discussed their religious beliefs. Toward the end of August, Robin began attending occasional congregational meetings and group discussions concerning the tenets of the Krishna faith. (10 RT 1785–1787.)
During their visits to the temple, Robin and Caron met and talked with various Krishna devotees including defendant Roy Christopher Richard, the president of the Laguna Beach temple. Richard was known by his Krishna name, “Rsabadeva.” In September 1974, Marcia George visited the Laguna Beach temple and spoke with Rsabadeva, reminding him that Robin was “at a very susceptible age.” (3 RT 523.)
By October Robin had begun to adopt the practices of the Krishna faith. She began braiding her hair and wore a sari while attending her high school classes. She constructed a Hindu-style altar in her bedroom and arose at approximately 2:30 a.m. every morning to pray and chant. (3 RT 526–530; 11 RT 1847–1848.)
Marcia and Jim George became concerned with Robin's acceptance of the Krishna religion and the resulting change in her behavior. Marcia again visited the temple in October to discuss the situation with Rsabadeva. She told him Robin's religious practices were beginning to interfere with her schooling. Rsabadeva assured Marcia that ISKCON had no interest in interfering with Robin's education. (3 RT 525–526, 532–533.)
By early November, Jim and Marcia directed Robin to dismantle her altar, forbade her from rising early in the morning to chant, and asked her to modify her diet. (6 RT 956–957.) At about the same time, Rsabadeva had a private meeting with Robin and Caron in his office at the temple. After complimenting them on their acceptance of the Krishna faith, Rsabadeva told the girls “if you really are sincere about seeking God and being true devotees ․ you can't live at home and practice this religion․ You have got to live in a temple facility.” (7 RT 1218.) He explained, “Your parents are demons and they will pull you away from Krishna. The closer you get to Krishna, the more your parents will try to pull you away.” (7 RT 1219.) Rsabadeva then asked both girls if they thought their parents would object if they became devotees and went to live in the temple. Both said yes. He then asked, “Do they have enough money to hire a detective to try to find you?” The girls replied they did not think so. As the conversation continued, Rsabadeva told the girls that their parents were not their real parents and that horrible things would happen to them in their next life if they continued to live with people like their parents who ate meat, a practice the Krishnas believe is fundamentally sinful. (7 RT 1219; 8 RT 1277–1278.) The girls were told it was permissible to deceive non-believers like their parents because they were incapable of seeing the truth. (8 RT 1302.) Finally, Rsabadeva suggested the girls run away from their parents. “Leave home” he said, “and we will send you someplace where your parents will never find you.” (8 RT 1302–1303.)
Robin Runs Away to New Orleans
During the next two weeks, Robin formulated a plan to run away from home and informed Rsabadeva of her intention. On Saturday, November 16, 1974, Robin packed some belongings and left her house through the bedroom window. She met Caron and John Herger at a school a few blocks away. The trio drove directly to the Laguna Beach temple. (8 RT 1303–1305.) They were met there by Rsabadeva who instructed them to drive to the Krishna temple in San Diego. He told Robin she had to go to San Diego because her parents would be “coming here looking for you as soon as they find out that you are gone.” (8 RT 1306.) In San Diego, he said, it would be harder for her parents to find her. He instructed her to call him the following day to receive further instructions. (8 RT 1307.)
Arriving in San Diego about midnight, Robin, Caron and John slept for several hours at the San Diego temple. They arose early with the other devotees for chanting and other activities as well as to prepare for a Krishna festival which was to be held in Balboa Park that day. (8 RT 1308–1309.) Robin called Rsabadeva at 8 a.m. He told her that Ksudhi, a devotee from the Laguna Beach temple, would be arriving in San Diego later that day and would purchase an airline ticket for her to fly to New Orleans. Upon arrival Robin was to phone the New Orleans temple president, Nityananda, who would arrange to have her picked up. (8 RT 1317–1318.)
A short time later several Laguna Beach devotees including Ksudhi and his wife Dhatreyi arrived at the San Diego temple. That afternoon they went to the Balboa Park festival with Robin, Caron and John. While they were at the festival, Dhatreyi came running up to Robin, told her that her parents were there, and instructed her to hide in a nearby public restroom. (8 RT 1323–1324.) A few minutes later Ksudhi brought the car around and the three drove back to the San Diego temple where Robin was instructed to pack her belongings. (8 RT 1330.) Ksudhi and Dhatreyi then drove Robin to the San Diego airport where Ksudhi purchased a ticket to New Orleans. The ticket was purchased for “Audrey Sherman”—Dhatreyi's Christian name. Ksudhi gave Robin the ticket and Dhatreyi gave her some identification with the name “Audrey Sherman.” (8 RT 1342–1344.)
Robin boarded the plane at 7 p.m. Sunday evening, arriving in New Orleans at about dawn on Monday morning. After phoning the New Orleans temple, she was picked up by several devotees and taken to the temple. (8 RT 1344–1349.)
Soon thereafter Robin met with the temple president, defendant Nico Kuyt, also known by his Krishna name Nityananda. During the conversation Robin told him she was 15 years old. (8 RT 1365.) Nityananda informed her he had received a letter from her parents, a copy of which was apparently sent by the Georges to each of the Hare Krishna temples in the United States. The letter portrayed Robin as having a mental condition which required she be returned home.3 Robin responded that the contents of the letter were untrue. Nonetheless, Nityananda explained, he had spoken with Jayatirtha—a member of the ISKCON Governing Body Commission (GBC) 4 —and they had agreed she should write her parents to let them know she was all right. (9 RT 1493.) Nityananda provided Robin with a sample letter which she modified using her own words. (8 RT 1356–1369.) The letter did not disclose Robin's whereabouts. (8 RT 1358.) Nityananda told Robin he was going to mail the letter to the president of the San Diego temple with instructions that he mail it to the Georges. (8 RT 1360.)
Caron Dempsey and John Herger drove to New Orleans and joined Robin at the New Orleans temple within several days of her arrival there. (21 RT 4005–4006.) During the succeeding months, Robin together with the other Krishna devotees performed work and engaged in various religious activities and rituals at the temple. Robin would normally get between four and five hours of sleep each night. (8 RT 1363–1365.) Beginning in December 1974, her activities expanded to include “sankirtan,” the Krishna reference for the solicitation of donations.5 (8 RT 1366.)
Nityananda controlled virtually every aspect of life at the New Orleans temple. He set work schedules, determined how much sleep each devotee would be allowed, and controlled the temple finances. The devotees were not allowed to have any money of their own but were required to seek Nityananda's permission if they needed to purchase anything. (9 RT 1440, 1466–1470, 1473.) At one point Robin developed a staph infection in her foot. She attempted to obtain Nityananda's permission to see a doctor. He refused, telling her the sore simply indicated that Krishna was causing her past bad karma to leave her body. (9 RT 1452–1453.) Several days later, Nityananda agreed that Robin could go to a charity hospital. (9 RT 1453.)
Nityananda informed the members of the New Orleans temple that Robin's parents were looking for her. He instructed them they should tell no one Robin was living there. (18 RT 3420.) At one point a sign was placed over the telephone reading as follows: “If anyone calls asking for Robin George, tell them she is not here. No one lives here by that name.” (8 RT 1361.)
Continuing into the early part of 1975, the Georges persisted in their attempts to locate Robin. Marcia George spoke with Rsabadeva at the Laguna Beach temple on two occasions. Rsabadeva told her it was “quite possible that [Robin] was in the Hare Krishna movement somewhere but he didn't know where.” (4 RT 599–600.) In their second conversation, Marcia again asked Rsabadeva's help in locating Robin. She told him Jim George “had a weak heart and he was taking it very badly and I was afraid that it would kill him.” Rsabadeva laughed and replied, “Well, this has happened to another devotee's father who had a heart attack but didn't die.” (4 RT 600–601.)
After receiving the letter from Robin which was mailed from San Diego, the Georges drove to the San Diego temple and met with the temple president and several other devotees. Between November 1974 and January 1975, the Georges made several additional trips to San Diego. In February 1975 the Georges arranged to meet with GBC member Jayatirtha. He expressed sympathy with their situation and promised to try to help find Robin. (4 RT 644–645.)
In December 1974 the Georges sent a letter with a picture of Robin to the juvenile divisions of the police departments in all the cities in which Krishna temples were located. (4 RT 618.) In March 1975, the Georges sent a similar letter to the fire departments in those cities. This second letter included the promise of a $500 reward for information as to Robin's location. (4 RT 651.)
In April 1975, apparently in response to the second letter, police in New Orleans went to the Krishna temple asking for Robin. With the help of another devotee, Robin escaped through a rear window and hid in a nearby apartment used by the Krishnas as a residence. (9 RT 1495.) About 20 minutes later after the police had left, Robin returned to the temple and was summoned to Nityananda's office. He told her he had spoken with Jayatirtha and they had decided she should call her parents, tell them she was fine and ask for permission to stay at the New Orleans temple. (9 RT 1497.)
Robin called home and spoke with her mother. When Robin asked for permission to stay at the New Orleans temple, Marcia replied she would have to discuss the issue with Robin's father. (4 RT 655.) Robin then turned the phone over to Nityananda who essentially repeated Robin's request to Marcia. Marcia replied that she didn't think Jim George would permit it. Nityananda told Marcia, “Well, I can't help what she does. If you want her to come home, she'll run away.” Marcia responded, “If she runs away, we'll hold you responsible because you're the president of the temple and you have jurisdiction and if she runs away, we'll know its because you helped her to run away.” (4 RT 655; 9 RT 1499.)
Later that afternoon, the New Orleans police arrived at the temple, found Robin and took her to the police station. Jim George arrived in New Orleans that night, took custody of Robin and arranged to fly with her the following day to Los Angeles. (9 RT 1514.) During the plane ride, Robin began chanting as she had been instructed to do by Nityananda. After Jim warned her to stop several times, he slapped her across the face. (9 RT 1517–1518.)
Three Weeks at Home
Upon their arrival at the George home in Cypress, Marcia noticed that Robin had lost a considerable amount of weight. She described her daughter as “stiff” and “expressionless.” (4 RT 661.) Within several hours of her arrival home, Robin attempted to escape through a bedroom window. When her parents discovered the escape attempt, Robin fled to the backyard hysterically chanting and screaming, “Nsringadev.” 6 Jim picked up the garden hose and began squirting Robin from a distance of four to five feet. Some of the water got into her mouth. At some point both Jim and Robin slipped on the wet patio slab and fell to the ground. (4 RT 666; 9 RT 1538.)
Following the hosing incident, Jim and Marcia were preoccupied with the fear that Robin would again attempt to escape. For several nights, they took turns sleeping so that one would always be awake watching Robin. (4 RT 671–672.) The three then discussed the situation and agreed to a procedure where a long chain was attached to Robin's ankle and secured to the base of the toilet, allowing Robin to move freely between the bedroom and bathroom but preventing her escape. After several nights this practice was discontinued. (4 RT 676–677; 9 RT 1543–1546.)
Within days after arriving home, Robin received a telephone call from Nityananda in New Orleans. He told her, “I will get you out of there as soon as possible, and just keep chanting Hare Krishna.” (9 RT 1540.) Thereafter, Nityananda told Caron Dempsey to call a friend of hers in the Cypress area named Vivian Grass. Caron arranged for Vivian to pick up some money which Nityananda was wiring from New Orleans. (18 RT 3428–3430.)
Spiriting Robin Away to Canada
On May 1, 1975, Robin was supposed to go to a neighbor's house. (5 RT 703.) Instead, she went to Vivian's Grass' house. Grass then drove Robin to the Disneyland Hotel where, using the money provided by Nityananda, she purchased an airplane ticket to Miami.7 (9 RT 1552–1553.) Grass then drove Robin to the Laguna Beach temple. When Robin learned that Rsabadeva was not there, she spoke with a devotee named Padmagarbha, explaining her situation and asking to be taken some place other than Laguna Beach. (9 RT 1554; 36 RT 7078–7079.)
Padmagarbha drove Robin to the residence of an ex-Krishna devotee in Leucadia.8 (36 RT 7080.) Shortly after her arrival in Leucadia, Robin called Rsabadeva in Laguna Beach. Several days later, Rsabadeva came to Leucadia to visit Robin. He told her he had spoken with Nityananda, who did not want Robin to go to Miami. Instead, he wanted her to fly to Dallas and then on to Canada. (9 RT 1557–1558.)
About a week later, Rsabadeva again visited Robin in Leucadia. He told her he had arranged for her to fly to Buffalo, New York the next day. From there she would be taken to Canada. Later that day, Rsabadeva took Robin to a convenience store in Leucadia and bought some makeup. He instructed her to wear the makeup and disguise herself as a pregnant woman for the flight to Buffalo. (9 RT 1560.)
The following day, one of the house residents drove Robin to the San Diego airport and purchased an airline ticket for her under an assumed name to Buffalo via Dallas. (9 RT 1562–1563.) Upon her arrival in Buffalo, she was picked up by several devotees who took her to the Buffalo temple where she stayed for approximately one week. (9 RT 1564.)
When Robin's parents discovered she had disappeared, they immediately filed a report with the Cypress police. They then proceeded to the Laguna Beach temple and asked to speak with Rsabadeva. When they were told he was not there, they left a message. Rsabadeva called the Georges early the next morning. He told Marcia he had not seen Robin but that if he learned any news of her he would call and let them know. (5 RT 711.) The Georges also spoke with Nityananda in New Orleans. He also denied knowing where Robin was and promised to call if he heard anything. (5 RT 713–714.)
Shortly after she arrived in Buffalo, Robin called Nityananda, informing him that the president of the Buffalo temple had asked her to stay there rather than going on to Canada. Nityananda replied he would talk with the temple president and make sure Robin was sent on to Ottawa. (9 RT 1566.) Within a week, Robin was driven across the border by several Buffalo devotees who then purchased her a bus ticket and saw to it that she boarded a bus to Ottawa. Upon her arrival in Ottawa, she was met by the Ottawa temple president, Am Su, who took her to the temple. (9 RT 1582–1583.)
As was the case with Nityananda in New Orleans, Am Su prescribed Robin's daily routine at the Ottawa temple. (9 RT 1584.) One member of the Ottawa temple described Robin as a “sincere” and “hardworking” devotee. (40 RT 7660–7661.) Robin also wrote letters to Caron Dempsey—at this point still a member of the New Orleans temple—telling her how much she liked living in Ottawa. (21 RT 4015.)
Marcia spoke with GBC-member Jayatirtha in mid-May. He agreed to try to help locate Robin. He also asked Marcia whether she and Jim would agree to allow Robin to live in one of the Southern California temples if he was successful in locating her. The Georges told Jayatirtha they would do so as long as Robin could continue her education. (5 RT 729–730.) Jayatirtha responded that, “The decision to bring her back ultimately would not be his, but the decision would remain with the president of the temple in which she was located.” (5 RT 737.) Jayatirtha then called Am Su and asked him to inquire of Robin whether she thought her parents were sincere. Robin told Am Su she thought there was only a “50/50 chance” that her parents would follow through on the bargain. (10 RT 1613–1614.) Thereafter, the Georges had increasing difficulty communicating with the Southern California Krishna leaders. On one occasion, when Marcia was successful in contacting Jayatirtha and Rsabadeva, they accused the Georges of mistreating Robin after she returned home. (5 RT 738, 743, 748.)
Frustrated, the Georges began a public relations campaign against the Krishna movement in Southern California. During the month of June 1975, they and several friends picketed the Krishna temples in Laguna Beach, Los Angeles, and San Diego. They also picketed Rsabadeva's personal residence. On that occasion, they were confronted by Rsabadeva who threatened to blow up their car if they didn't leave. (5 RT 758–759.) Another devotee standing only a few feet from Rsabadeva warned the Georges they might never see their daughter alive again if they did not stop picketing. (5 RT 805–806.)
In July 1975, in response to pressure from the California Attorney General, the Mayor of Cypress, and others, Captain Don Amberg of the Cypress Police Department contacted Jayatirtha about the Robin George situation. (19 RT 3553.) Amberg had been told at the Laguna Beach temple that Jayatirtha was “about as high [in the movement] as [he] could go.” (19 RT 3571.) Jayatirtha told Amberg that he had already cooperated fully with the Georges. Nonetheless, he volunteered to write another letter requesting information about Robin George and send copies to all Krishna temples in the United States. (19 RT 3579.) By a cover letter dated July 24, 1975, Jayatirtha forwarded a copy of the letter to Amberg.9 The cover letter stated in part, “I hope that you can see by this that we are indeed attempting to help out the George's [sic] as much as is within our power. Beyond a temple-by-temple search, which is unfeasable, [sic] I don't know what else we can do to facilitate your work.” (Exh. 159.)
In August 1975, the Krishnas responded to the pressure being created by the Georges. Nityananda drafted two letters and sent them to Am Su with instructions that Robin copy them, making whatever changes were necessary to put the thoughts in her own words. The first letter was addressed to Robin's parents. In it, she explained she was no longer a member of the Krishna movement. Instead, she was traveling with a group of musicians in Mexico and enjoying her independence.10 She repeatedly chided her parents for mistreating her when she was home.11
The second letter was addressed to Caron Dempsey, John Herger and Nityananda at the New Orleans temple. In that letter, Robin also stated she was traveling in Mexico and complained about mistreatment by her parents. She mentioned she had heard about her parents' public relations campaign against the Krishnas and hoped her letter to them “straightens things out.” (Exh. 97; 9 RT 1597–1598.)
Robin addressed envelopes as well. The first letter was placed in an envelope without explanation addressed to Caron Dempsey's family. Am Su explained to Robin that Nityananda thought this was necessary because if the letter were sent directly to Robin's parents, they would simply ignore it and tell no one about it. (9 RT 1595.) Am Su sent the letters and envelopes without postage to Nityananda in New Orleans who forwarded them to the Mexico City temple where they were stamped, postmarked, and mailed to their respective destinations. (9 RT 1599.) Before forwarding the material to Mexico City, Nityananda showed Caron Dempsey the first letter and the photograph, explaining, “This is the con we have, we are going to send it to Mexico.” 12 (18 RT 3538.)
When Nityananda received the second letter back from Mexico City, he forwarded it to Jayatirtha in Los Angeles along with a cover letter which read: “I received this letter yesterday from Rajanath [Robin's Krishna name]. I suppose it will make her parents happy to know that she is not in one of our temples. The fact that she signs her name Robin, is not a very good sign. Anyway, your letters requested that any information be sent as soon as it was received, so I hope that this will help out with your problem there. This girl was a really nice devotee when she was here and it is a real shame that she had such a strange family.” (Exh. 96; 14 RT 2504.) Jayatirtha, in turn, sent Robin's letter with Nityananda's commentary to the Cypress police. (19 RT 3592–3593.)
The Georges received Robin's letter from the Dempseys. (5 RT 822.) Based on a variety of factors, the Georges concluded that both the letter and the photograph were part of a scam. They continued to believe Robin was being hidden from them somewhere in the Krishna movement. (5 RT 827–830; Exh. 101.)
The Beginning of the End
In the late summer of 1975, Caron Dempsey left the New Orleans temple and returned to Southern California. After living in the Los Angeles temple for a short while she returned home in September to live with her mother. (21 RT 4017–4018.) In mid-October, Caron contacted the Georges and told Marcia that Robin was in Ottawa. After relaying this information to the Cypress police, Jim decided to drive to Ottawa. (5 RT 847–850.)
Accompanied by Canadian authorities, Jim arrived at the Ottawa temple on October 28, 1975. Alerted by another devotee, Am Su instructed Robin to disguise herself using a wig and glasses which had been purchased with just such an eventuality in mind. Robin was able to leave through a back door and proceed to a nearby residential apartment where she met Am Su's wife, Jagadikanda. Jagadikanda gave Robin some non-Krishna “karmi” clothes and instructed her to go to downtown Ottawa and wait in a department store for an hour before calling.
An hour later Robin phoned the temple and spoke with Am Su. He picked her up a few minutes later and they drove for several hours to an isolated farm which was being rented by an independent devotee named Hanuman. The house was vacant at the time because Hanuman's wife had just had a baby and was staying in a hospital in a nearby town. (10 RT 1637–1638; 40 RT 769.) After making arrangements with Hanuman to get into the house, Am Su bought some groceries for Robin, left her there, and returned to Ottawa. (10 RT 1638.) Hanuman returned to the farm within several days. (10 RT 1640–1641.) 13
Meanwhile, back in California, Captain Amberg of the Cypress police had interviewed Caron Dempsey. On Friday, October 31, Amberg phoned Jayatirtha at the Los Angeles temple. In somewhat colorful language,14 he told Jayatirtha that the statement from Caron Dempsey indicated the Krishnas had been lying with respect to their knowledge of Robin's whereabouts. He threatened a criminal prosecution and gave Jayatirtha 24 hours to produce Robin. Within minutes, Amberg received a phone call from an attorney representing the Krishnas. The lawyer asked if he could have until Monday morning to look into the matter. Amberg agreed on the condition that he receive a phone call from the lawyer before 9 a.m. (19 RT 3632–3633.)
Am Su returned to Hanuman's farm on the evening of October 31. He told Robin, “Your father says he has a letter that can put all of us in jail, all the devotees in jail, or could put me in jail and Jayatirtha in jail and Nityananda in jail. What letter is he talking about?” (10 RT 1646.) Robin replied that the only letter she could think of was one she had written to Caron Dempsey, explaining how she had gotten from Los Angeles to Ottawa. Am Su then explained to Robin that Caron had left the Krishna movement. He also told her that Jayatirtha “wants you out in L.A. immediately.” (10 RT 1648.) Am Su then drove Robin to Detroit where he purchased her a plane ticket to Los Angeles. (10 RT 1649–1655.) Robin flew to Los Angeles on November 2. She was met by several Krishna devotees and taken to the Los Angeles temple.
On Monday November 3, Robin was summoned to Jayatirtha's office. She told him about the letter she had written to Caron. Jayatirtha told Robin that she had to retrieve the letter because otherwise, he and some of the other devotees “might have to go to jail.” (10 RT 1660–1661.) The next day, Robin went with Jayatirtha and two other devotees to meet with the ISKCON lawyer. They discussed Robin's letter to Caron. The lawyer stated that the devotees were “in very serious trouble” and told Robin she had to retrieve the letter because “its very damaging.” (10 RT 1678.) During the meeting, the lawyer placed a phone call to Captain Amberg. He stated that although the Krishnas did not know where Robin was, he wanted to know whether criminal charges would be pressed if Robin appeared within a few days. Amberg replied he viewed such an inquiry as unprofessional. Amberg also said he would not be surprised if Robin was sitting in the lawyer's office that very moment. According to Robin, the lawyer turned white, his jaw dropped, he said good-bye and hung up the phone. (10 RT 1679–1680; 19 RT 3634–3635.)
As the meeting continued, the lawyer gave Robin some psychological tests to take. He wanted her to see a psychiatrist to demonstrate that she had joined the Krishna movement of her own volition. He also indicated he would arrange for her to turn herself in to the Cypress police the following day. He instructed her to tell the police: (1) she told all the devotees she was 18 years old and they believed her; (2) official Krishna money had not been used on her; (3) her parents had been cruel to her; and (4) she wanted to be placed in a foster home. (10 RT 1680–1681.)
The next morning Robin decided to run away from the temple. As she described it, “I felt that demons that I knew were better than demons that I didn't know, and I didn't feel safe or trust [the ISKCON lawyer]. I wanted to live in a temple, and I was just very confused.” (10 RT 1694.) After running from the temple, she caught a bus and rode it to the end of the line. From there she hitchhiked to Vivian Grass' house where she telephoned Caron Dempsey. Caron arrived a short time later and they talked all night. The next morning Robin walked home.
Shortly after she got home, Captain Amberg and other members of the Cypress police department arrived at the George residence to interview Robin. As she had been instructed, Robin lied to the police in order to protect the Krishnas. (7 RT 1135, 10 RT 1712–1713.) After giving the police a tape-recorded statement, Robin was taken to juvenile hall. Three weeks later, she was released to her parents. (10 RT 1713.)
Less than four months later on March 5, 1976, Jim George suffered a heart attack. (30 RT 5661.) Thereafter, he suffered several strokes which required extensive hospitalization. (30 RT 5661–5669.) On September 4, 1976, Jim George died. An expert testified at trial that although Jim had been diagnosed as having heart disease as early as May 1974, the stress occasioned by his interaction with the Krishnas and his inability to locate Robin significantly shortened his life. (30 RT 5687–5688.)
After Robin's return home, Marcia and Robin became active in a “anti-cult” organization known as the Citizens Freedom Foundation (CFF). (7 Rt 1107; 12 RT 2080.) In October 1976, the Krishnas became aware that Robin was going to speak at a CFF press conference concerning the Krishna movement. (32 RT 6307; Exh. 107.) In preparation for the press conference, Makunda, the “community affairs director” for the Los Angeles temple prepared a press release entitled the “Official Position Regarding Robin George”.15 Among other things, the “Official Position” stated that Robin complained of being beaten by her parents. It suggested she was motivated initially to seek shelter at the Laguna Beach temple and later flee to New Orleans because of parental abuse. The “Official Position” was distributed to members of the media who attended the press conference. (32 RT 6205.)
In October 1977, Robin and Marcia filed suit against four Krishna corporate entities (ISKCON of California, New York, Louisiana and Canada) and two individuals (Rsabadeva and Nityananda). The case went to trial on theories of false imprisonment (as to Robin), intentional infliction of emotional distress (Robin and Marcia), libel (Robin and Marcia) and wrongful death (Robin). The jury returned a verdict in favor of the Georges on all causes of action, awarding damages as follows:
Following the trial court's conditional granting of defendants' motion for new trial, the Georges accepted a remittitur reducing the compensatory award to Marcia on the emotional distress claim to $400,000 and the punitive awards for false imprisonment to $5 million, for emotional distress to $2 million and for libel to $500,000.
The centerpiece of this case both in terms of the evidentiary presentation at trial 16 and the amount of damages awarded was Robin George's claim that she had been falsely imprisoned by defendants during the approximately one year she was a member of the Krishna faith.
Penal Code section 236 defines the crime of false imprisonment as “the unlawful violation of the personal liberty of another.” The criminal definition has been held applicable to the tort of false imprisonment as well. (Parrott v. Bank of America (1950) 97 Cal.App.2d 14, 22, 217 P.2d 89; City of Newport Beach v. Sasse (1970) 9 Cal.App.3d 803, 810, 88 Cal.Rptr. 476.) “The tort requires direct restraint of the person for some appreciable length of time, however short, compelling him to stay or go somewhere against his will.” (5 Witkin, Summary of Cal. Law (8th ed. 1988) Torts, § 378, p. 463, emphasis in original.) With one apparent exception,17 the “violation of personal liberty” which the tort of false imprisonment contemplates necessarily involves a physical restraint of the plaintiff. This is not to say, however, that the plaintiff must in fact be physically restrained; the threat of physical restraint may be sufficient. (People v. Haney (1977) 75 Cal.App.3d 308, 313, 142 Cal.Rptr. 186; Parrott v. Bank of America, supra, 97 Cal.App.2d 14, 22–23, 217 P.2d 89.)
At trial, even the Georges recognized this was not a prototypical case of false imprisonment. Robin admitted she was never physically restrained by the defendants and that her residence in the various Krishna temples was not against her will.18 To counter these facts, plaintiffs introduced expert testimony from Drs. Margaret Singer and Sydney Smith to the effect that defendants “brainwashed” Robin into joining the Krishna movement. In particular, Dr. Singer testified Robin's “will had been overborne” by late October 1974 such that her decision to run away from home on November 16 was not a product of her own free will. (28 RT 5279, 5295.) Both Dr. Singer and Dr. Smith identified several features of the Krishna faith which, they argued, contributed to rendering Robin incapable of exercising freedom of choice including a low-carbohydrate vegetarian diet, reduced amounts of sleep and chanting as a means of religious ritual. (28 RT 5349–5350; 31 RT 5937–5939.)
Defendants fervently assert that the evidence at trial, even when viewed in a light most favorable to the plaintiffs' claims, is simply insufficient to support liability on a false imprisonment theory. They argue that false imprisonment requires at a minimum direct physical restraint of the plaintiff by force or threat of force, neither of which was present in this case.
Robin responds with what we perceive to be three different arguments in support of the jury's false imprisonment verdict. First, relying on a single 1951 case, she asserts defendants can be liable for false imprisonment because they created “substantial obstacles” to her freedom of movement. Next, Robin contends false imprisonment is established as a matter of law whenever a defendant entices or permits a minor to remain out of the custody of her parents. Finally, based on the expert testimony from Drs. Singer and Smith, Robin argues that evidence of physical restraint is unnecessary if it can be shown that defendants brainwashed her into remaining a member of the Krishna movement.
False Imprisonment Based on the Creation of Obstacles to Movement
Relying on Schanafelt v. Seaboard Finance Co. (1951) 108 Cal.App.2d 420, 239 P.2d 42, Robin asserts the evidence is sufficient to support a finding of liability on a false imprisonment theory because the defendants created substantial obstacles to her liberty and freedom of movement by taking her far from home, depriving her of financial resources and limiting her access to means of communication and transportation. She suggests Schanafelt stands for the proposition that physical force or the threat of it is not a necessary element of a false imprisonment cause of action.
In Schanafelt, the defendant's agent Alexander was attempting to repossess some of plaintiff's furniture. Apparently to facilitate his task, he parked in plaintiff's driveway so as to block her car from exiting and ordered her to remain until a truck arrived. He gruffly refused her request to leave and later denied her permission to leave to get some food. The court concluded the jury's verdict in favor of the plaintiff was supported by the evidence: “The house was at the time unoccupied․ [Plaintiff's] only means of transportation was by automobile and Alexander had parked his car across the driveway for the obvious purpose of blocking exit. Plaintiff concluded from Alexander's attitude that he would not move the car if requested to do so. Plaintiff was pregnant at the time and especially fearful because of her condition, which was known to Alexander. Alexander's conduct, in light of his motives, was clearly sufficient to support a finding of false imprisonment. Words or conduct furnishing a reasonable apprehension on the part of the one restrained that he will not be allowed to depart is sufficient.” (Id. at p. 423, 239 P.2d 42.)
We think Robin reads Schanafelt far too broadly when she suggests that the creation of any “substantial obstacle” to movement is sufficient to support a judgment for false imprisonment. To begin with, the facts of Schanafelt are clearly distinguishable because here, there was no evidence of “words or conduct” on the part of the defendants indicating to Robin she was not free to leave. Moreover, in support of its legal conclusion quoted above, the Schanafelt opinion cites Vandiveer v. Charters (1930) 110 Cal.App. 347, 294 P. 440, in which the court expressed its conclusion that “[i]t was a question of fact for the trial court to determine whether the words ‘or conduct’, [of defendants] were such as to induce the plaintiff, as a reasonable person, to apprehend the use of force and coercion, if she declined to act in accordance with their demands.” (Id. at p. 356, 294 P. 440, emphasis added.) Thus, far from eliminating the force requirement, Schanafelt merely represents an application of the general rule that an implied threat of force, reasonably believed by the plaintiff, is sufficient to support a finding of false imprisonment. There being no threat of force of any kind in this case, Schanafelt is simply inapplicable.
False Imprisonment Based on Robin's Status as a Minor
Perhaps based in part on a recognition of the difficulties in defining “brainwashing” and differentiating it from constitutionally protected proselytization (see Katz v. Superior Court (1977) 73 Cal.App.3d 952, 987–988, 141 Cal.Rptr. 234), Robin attempts to deflect First Amendment concerns by focusing on her status as a minor. She argues that “[i]f someone entices, or permits, or forces a child to stay anywhere except in the custody of her parents, without the parents' consent (express or implied), that person had falsely imprisoned the child.” (Resp. Brief at pp. 40–41.) As we explain in more detail in section III of this opinion, we have no difficulty with the sufficiency of the evidence to support the premise of Robin's argument; that is, that the defendants enticed and encouraged her to run away from home and thereafter conspired to hide her from her parents at various locations in the United States and Canada. What remains is a legal question: Do such acts constitute false imprisonment? On the facts of this case, we conclude they do not.
Robin places considerable reliance on Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 173 Cal.Rptr. 906, in which the defendant abducted a seven year-old boy, Steven, after falsely promising to give him a ride home. Although concluding the evidence was sufficient to warrant kidnapping charges against the defendant, which necessarily included a “forcible taking” element,19 the court suggested in a footnote that the kidnapping of a minor—and presumably a false imprisonment—could be accomplished “even if unaccompanied by force so long as it was done for an improper purpose, because a minor ‘is too young to give his legal consent to being taken․’ ” 20 (Id. at pp. 402–403, fn. 3, 173 Cal.Rptr. 906, quoting People v. Oliver (1961) 55 Cal.2d 761, 764–765, 12 Cal.Rptr. 865, 361 P.2d 593.) Oliver involved a defendant charged with kidnapping a two year-old infant and thereafter committing a lewd and lascivious act. The Supreme Court there held that where a defendant is charged with kidnapping a child “too young to give ․ legal consent to being taken,” it is both necessary and sufficient to show that the child was taken “for an illegal purpose or with an illegal intent.” (55 Cal.2d at pp. 764, 768, 12 Cal.Rptr. 865, 361 P.2d 593.)
Putting aside the difficulties in determining whether Robin was secreted by defendants “for an illegal purpose or with an illegal intent,” Oliver itself refutes the notion that every minor—i.e., every person under the age of 18—is too young to give legal consent and thus by definition is falsely imprisoned when he or she is kept from parental custody. In support of the proposition that the infant was too young to consent, the court cited three out-of-state cases involving children of ages two weeks (State v. Hoyle (1921) 114 Wash. 290, 194 P. 976, 977), 11 years (John v. State (1896) 6 Wyo. 203, 44 P. 51, 53) and 4 years (State v. Farrar (1860) 41 N.H. 53, 59). It then contrasted those citations with a California case, People v. Williams (1936) 12 Cal.App.2d 207, 212, 55 P.2d 223, in which the court held that a 12 year-old boy was capable of consenting to the defendant's commission of a lewd act.
That there can be no hard-and-fast rule as to the age at which a minor attains the capacity to consent has been noted by at least one respected set of commentators. “A minor acquires capacity to consent to different kinds of invasions and conduct at different stages in his development. Capacity exists when the minor has the ability of the average person to understand and weigh the risks and benefits.” (Prosser & Keeton, Torts (5th ed. 1984) § 18, p. 115.) Moreover, case and statutory law is replete with examples of situations in which a child over the age of 14 is deemed to have the mental capacity of an adult. In California, minors of that age are capable of committing and being held responsible for a crime (Pen.Code, § 26), obtaining an abortion or birth control devices (Civ.Code, § 34.5), consenting to certain types of medical and mental health treatment (Civ.Code, §§ 25.9, 34.7 et seq.) and being emancipated (Civ.Code, § 64).
Particularly significant in this regard is the United States Supreme Court decision in Chatwin v. United States (1946) 326 U.S. 455, 66 S.Ct. 233, 90 L.Ed. 198, which overturned a defendant's conviction on federal kidnapping charges. The case is noteworthy not only because it involves the capacity of a girl of approximately Robin's age to consent to a kidnapping, but also because the defendant was a member of a minority religious sect. Chatwin was a 68 year-old fundamentalist Mormon who converted the 15 year-old victim, whom he employed as a housekeeper, to believing in the doctrine of “celestial” or plural marriage. They fled to Mexico where a wedding ceremony was performed and lived thereafter in Arizona.21 (Id. at pp. 457–458, 66 S.Ct. at pp. 234–235.) The Supreme Court held that the girl's consent to the transportation and marriage barred the kidnapping charges: “[T]here is no competent or substantial proof that the girl was of such an age or mentality as necessarily to preclude her from understanding the doctrine of celestial marriage and from exercising her own free will, thereby making the will of her parents ․ the important factor. At the time of the alleged inveiglement in August, 1941, she was 15 years and 8 months of age and the alleged holding occurred thereafter. There is no legal warrant for concluding that such an age is ipso facto proof of mental incapacity in view of the general rule that incapacity is to be presumed only where a child is under the age of 14.” (Id. at p. 461, 66 S.Ct. at p. 236.) In language particularly appropriate to this case, the Court added that “the broadness of the statutory language [in the Federal Kidnapping Act] does not permit us to tear the words out of their context, using the magic of lexigraphy to apply them to unattractive or immoral situations lacking the involuntariness of seizure and detention which is the very essence of the crime of kidnapping.” (Id. at p. 464, 66 S.Ct. at p. 237, emphasis added.)
Here, Robin was 15 at the time she decided to run away from home. The evidence introduced by the plaintiffs demonstrates that she was a bright and gifted high school student of above-average intelligence and maturity. No doubt her decisions in these matters were in part the product of the “rebelliousness of youth” but that is hardly a trait which evaporates at age 18. We seriously question whether a minor who by statutory definition is capable of committing a crime can at the same time be incapable of consenting to what would otherwise be a tort. At a minimum, however, the common law and case precedent indicate that a minor over the age of 14 is presumed to be capable of consenting to conduct which would otherwise be tortious. The evidence here, far from establishing incapacity, demonstrates quite the opposite.
We think an analogy to the criminal law may be helpful in evaluating the competing interests at stake here. As we have seen, a minor's consent may prevent a defendant's conviction for kidnapping just as it precludes civil tort liability for false imprisonment. California has for some time, however, had a child abduction statute, Penal Code section 278, which prohibits any person from intentionally detaining, concealing or enticing away any minor from his or her parent or guardian. It has been repeatedly held that this statute defines a crime against the parent or guardian and for that reason, the minor's consent is irrelevant. (See, e.g., People v. Moore (1945) 67 Cal.App.2d 789, 792, 155 P.2d 403; People v. Gillispie (1930) 104 Cal.App. 765, 767, 286 P. 502.)22 Similarly here, as we explain in section III post, the defendants' principal conduct in concealing Robin from her parents constituted a tragic civil wrong against Jim and Marcia George; it was not a tort against Robin.
False Imprisonment Based on a “Brainwashing” Theory
Finally, Robin argues that the “force or threat of force” and “lack of consent” requirements for the tort of false imprisonment may be satisfied by a showing that the plaintiff was subjected to coercive persuasion. She asserts it makes no functional difference whether her will was overcome by force or threats of force or by systematic brainwashing techniques. In either event, she suggests, the tort was committed because she effectively was confined against her will.
In Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 252 Cal.Rptr. 122, 762 P.2d 46, the California Supreme Court had occasion to consider the subject of “coercive persuasion” in the context of claims by former members of the Unification Church that they had been brainwashed into joining the Church. The court held that plaintiffs had stated a cause of action against the Church for fraud and intentional infliction of emotional distress based on allegations that the Church misrepresented its identity and deceived them into attending an indoctrination meeting and retreat. At the same time, however, the court rejected one plaintiff's assertion that she had been falsely imprisoned at the retreat, noting she admitted she was “theoretically free to depart at any time” and “was not physically restrained, subjected to threats of physical force, or subjectively afraid of physical force.” (Id. at p. 1123, 252 Cal.Rptr. 122, 762 P.2d 46.) The plaintiff argued she had in fact been threatened because the Church asserted she and her family would be “damned to Hell forever” if she left. The Supreme Court quickly dispatched this argument, concluding that it sought “to make the Church liable for threatening divine retribution․ [S]uch threats are protected religious speech [citations] and cannot provide the basis for tort liability.” (Id. at pp. 1123–1124, 252 Cal.Rptr. 122, 762 P.2d 46.)
Robin seeks to distinguish Molko on the ground that the plaintiff's claim there was based solely on “protected religious speech.” In contrast, she asserts, her brainwashing claim involved more than simple threats of divine retribution.
We decline Robin's invitation to extend what we believe are the clear limits of Molko. To begin with, we read Molko as a reaffirmation that physical force or the threat of it is a necessary element of a false imprisonment cause of action even in the context of a brainwashing claim. (See Snyder v. Evangelical Orthodox Church (1989) 216 Cal.App.3d 297, 304, 264 Cal.Rptr. 640.) The plaintiff's divine retribution argument in Molko was a last-ditch attempt to satisfy the threat requirement. We have great difficulty believing the Supreme Court simply ignored plaintiff's “coercive persuasion” allegations as a possible basis for the force element.
Robin is, of course, correct that the brainwashing theory expounded by Drs. Singer and Smith focused on more than threats of divine retribution. The results, however, are the same. Tort liability based on dietary restrictions, methods of worship, and communal living arrangements and schedules is just as surely inimical to the free exercise of religious liberty as that based on threats of divine retribution.23 This is made clear in another portion of the Molko opinion which defends against a First Amendment argument the court's conclusion that religious fraud is actionable: “Although fasting, poverty, silence or cloistered living may constitute intensive religious practice, we have already determined that fraud, even though purported to be religiously motivated, is actionable conduct․” (46 Cal.3d at p. 1122, 252 Cal.Rptr. 122, 762 P.2d 46.)
Here, Robin presented no substantial evidence of fraud as to her 24 nor did the evidence at trial so much as suggest that the schedules, practices and duties required of her differed from those of any other Krishna devotee. Absent such evidence, Robin's brainwashing theory of false imprisonment is no more than an attempt to premise tort liability on religious practices the Georges find objectionable. (See also Snyder v. Evangelical Orthodox Church, supra, 216 Cal.App.3d at p. 305, 264 Cal.Rptr. 640 (rejecting theory of false imprisonment where “confinement” was accomplished by threats to reveal confidences and withhold absolution).) Such a result is simply inconsistent with the First Amendment.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AS TO ROBIN
For reasons similar to those expressed in the preceding two subsections, we conclude that Robin's claim for damages based on the intentional infliction of emotional distress is also fatally flawed. Many of the acts relied on by Robin as “outrageous” are hardly uncommon among cloistered religious groups 25 . Moreover, there is a dearth of evidence suggesting that any of these acts were performed by defendants with the intention of inflicting emotional distress on Robin or even in reckless disregard of that possibility. (See Agarwal v. Johnson (1979) 25 Cal.3d 932, 946–947, 160 Cal.Rptr. 141, 603 P.2d 58.) As we have previously noted, Robin's religious duties and living conditions were identical to all the other Krishna devotees who voluntarily chose the Krishna lifestyle.
Although the Supreme Court's decision in Molko held the plaintiffs there had stated a cause of action for intentional infliction of emotional distress, it does not support the verdict in this case. The Molko opinion begins its discussion of the emotional distress issue by defining the plaintiffs' claim: “Molko and Leal essentially contend the same conduct that supports their fraud actions—i.e., misrepresentation and concealment of the Church's identity for the purpose of inducing them to submit unknowingly to coercive persuasion—also gives rise to an action for intentional infliction of emotional distress.” (46 Cal.3d at p. 1120, 252 Cal.Rptr. 122, 762 P.2d 46.) In the discussion which follows, the court makes it abundantly clear on more than one occasion that the allegations of fraud are an essential part of the plaintiffs' emotional distress claim.26
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AS TO MARCIA
Defendants contend generally that the evidence is insufficient to support the verdict in favor of Marcia on her claim for intentional infliction of emotional distress. Even if the evidence is sufficient, however, they assert the judgment in her favor must be reversed because it is possible the jury based its damage award in part on distress caused by defendants' constitutionally protected activity. Finally, they also argue that Marcia's claim is barred as a matter of law by the statute of limitations.
Sufficiency of the Evidence
It is only by relying on a narrow and restrictive view of the facts and plaintiffs' arguments that defendants can contend Marcia's claim for intentional infliction of emotional distress was not supported by substantial evidence. The record fully supports the conclusion that defendants encouraged Robin to run away from home on two occasions, promising to send her “someplace where your parents will never find you.” Thereafter, while pretending to be ignorant but cooperative, the various leaders of the Krishna movement systematically planned and carried out ruse after deception in an effort to wear down the Georges and put law enforcement officials off the track.
In a preceding section of the opinion we rejected the Georges' contention that anyone who entices a minor child away from the custody of her parent or conceals such a child from the parent is liable for false imprisonment. (Ante, pp. 491–494.) The same conduct may, however, give rise to a cause of action on behalf of the parent for intentional infliction of emotional distress where the defendant recklessly disregards the probability that it will cause the parents severe emotional suffering.
Defendants respond to this suggestion at several levels. Focusing on the contention that they misrepresented their lack of knowledge of Robin's whereabouts, they argue that such misrepresentations were, if anything, calculated to avoid causing the Georges the emotional distress which would have been occasioned by disclosure of the truth. The argument fails for two distinct reasons. First of all, as a factual matter, it is simply incorrect. For much of the time, the Georges did not know where there daughter was or what condition she was in. It is hardly surprising that this uncertainty was a significant cause of emotional distress. Even knowing she was living in a Krishna temple in New Orleans or Ottawa would have greatly eased their apprehension. Moreover, defendants knew that the Georges tirelessly continued to search for Robin and were keenly aware of their frustrations when the Georges began their public relations campaign against the Southern California Krishna temples.
In addition, it is misleading to focus on the misrepresentations of Krishna ignorance as the sole or even primary basis for Marcia's emotional distress claim. The essence of the actionable conduct here was the conspiracy among defendants and other ISKCON agents to assist Robin in running away and to conceal her from her parents, which they knew was likely to cause the Georges severe emotional suffering.27 Feigned ignorance was only one aspect of this reprehensible activity. The purchase of plane and bus tickets, disguises, fake photographs, fraudulent letters and arguably the libelous “Official Position” news release (see ante, pp. 488–489) were all part and parcel of the conspiracy and provide a more than adequate basis for concluding that defendants engaged in outrageous conduct “ ‘exceeding all bounds usually tolerated by a decent society.’ ” (Agarwal v. Johnson, supra, 25 Cal.3d at p. 946, 160 Cal.Rptr. 141, 603 P.2d 58, quoting Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297, 131 Cal.Rptr. 547; see also Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1122, 252 Cal.Rptr. 122, 762 P.2d 46.)
Defendants also argue that Marcia's emotional distress claim is simply a covert attempt to resurrect her earlier pleaded cause of action based on Civil Code section 49 28 for abduction or enticement of a minor child which was dismissed pretrial after a demurrer was sustained without leave to amend. (See 2 CT 454, 612.) Marcia has not filed a cross-appeal on the ground that such demurrer was improperly sustained and the sufficiency of the earlier pleading is not before us. Regardless of whether the facts proved at trial would have supported such a cause of action, Marcia cannot be precluded from prosecuting her action on an emotional distress theory where, as we have indicated, all elements of that cause of action have been satisfied.29
Constitutionally Protected Activity as a Basis for Liability
At oral argument before this case traveled to the United States Supreme Court, defendants' counsel for the first time appeared to concede the evidence at trial might support a cause of action for intentional infliction of emotional distress. He argued instead that the case was presented to the jury in such a way as to allow it to award damages to Marcia caused not only by defendants' tortious conduct but also by their constitutionally protected activity. Specifically, counsel suggested that the jury's verdict could have included amounts intended to compensate Marcia for the distress she suffered because Robin converted to and practiced a religion foreign to her own. Defendants rely on a line of United States Supreme Court cases which state that where the record is insufficient to eliminate the possibility that a criminal or civil judgment is based in whole or in part on conduct protected by the First Amendment, it must be reversed. (See, e.g., NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 923, 102 S.Ct. 3409, 3431, 73 L.Ed.2d 1215; Street v. New York (1969) 394 U.S. 576, 589–590, 89 S.Ct. 1354, 1364–1365, 22 L.Ed.2d 572; Stromberg v. People of State of California (1931) 283 U.S. 359, 367–368, 51 S.Ct. 532, 535, 75 L.Ed. 1117; but see Boyde v. California (1990) 494 U.S. 370, –––, 110 S.Ct. 1190, 1197–1198, 108 L.Ed.2d 316 (distinguishing Stromberg and holding that in the case of an ambiguous jury instruction, the court must determine whether there is a “reasonable likelihood” the instruction was applied in a constitutionally prohibited manner).) Although they did not object to the emotional distress instructions on this ground in the trial court or propose a specific limiting instruction, defendants now effectively assert that Marcia's emotional distress award must be reversed because the jury was not specifically warned it could not assess damages based on their constitutionally protected proselytization of Robin. (See Founding Church of Scientology v. United States (D.C.Cir.1969) 409 F.2d 1146, 1164, fn. 2 (opn. on rhg.).)
Assuming the contention is properly before us, our review of the record convinces us the damages awarded in this case were not based on defendants' constitutionally protected activity. Although the jury was only instructed in general terms on intentional infliction of emotional distress, these instructions did specify that the actionable conduct had to be “extreme and outrageous” going beyond “all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community.” (44 RT 8402.) That constitutionally protected proselytization hardly fits this description was emphasized in later instructions which explained that the First Amendment “envision[s] the widest possible toleration of conflicting views” and “does not select any one group or any one type of religion for preferred treatment.” (44 RT 8415.) The jury was also instructed that ISKCON “is a religion under the United States Constitution․” (44 RT 8414.) In these circumstances, the jury could not have regarded the preaching activities of orthodox religions—even to minors—as “extreme and outrageous” conduct.
More importantly, Marcia George's testimony itself refuted any suggestion she was claiming emotional distress damages based on her daughter's conversion to and practicing of the Krishna religion. In response to defense counsel's question, “When did Mr. Richard first inflict emotional distress upon you?” Marcia replied, “Possibly a month or so prior to [November 16, 1974] when he began telling my daughter that she would have to leave home.” (6 RT 887.) This testimony makes it clear Marcia based her claim on the defendants' actions in causing Robin to leave home, not on their proselytizing Robin to accept the Krishna faith which began in August 1974.
In addition, closing argument by plaintiffs' counsel makes no suggestion the jury was to award damages based on the emotional distress suffered by Marcia as a result of Robin's conversion. Instead, counsel focused on precisely the same facts we recited in the preceding subsection when discussing the sufficiency of the evidence:
“You take a child like Robin, you hide her from her parents, you tell Jim George and Marcia George that if they don't leave you alone they are never going to see their daughter alive again, and you are going to bomb their car, and you lie to them, you are going to cause emotional distress.
“You send these phony letters through the mail where the parents are put to the test of proving to the police department, solving the case for the police department, and you are causing severe emotional distress.” (44 RT 8504–8505.)
Finally, it must be remembered that in conditionally granting defendants' motion for new trial, the trial court reduced Marcia's damages from $1.5 million to $400,000. Thus, reversal would have to be premised on concern that both the jury and the judge attempted to compensate Marcia for the emotional distress caused by defendants' First Amendment activities. We find no basis in the record to assume the trial judge misunderstood the proper basis for an award of emotional distress damages. Moreover, we have reviewed the legitimate evidence in support of Marcia's claim and conclude the award of $400,000 was not excessive as a matter of law. (See ante, fn. 29.)
In short, this is not a case in which a plaintiff has been compensated “for the direct consequences of ․ constitutionally protected activity.” (NAACP v. Claiborne Hardware Co., supra, 458 U.S. at p. 923, 102 S.Ct. at p. 3431.) To the contrary, we are able to say “with certainty” that Robin's conversion—and defendants' constitutionally protected actions to facilitate it—were not the basis for the judgment in favor of Marcia. (See Street v. New York, supra, 394 U.S. at p. 589, 89 S.Ct. at p. 1364.)
Statute of Limitations
Defendants also argue that Marcia's cause of action for intentional infliction of emotional distress is barred by the statute of limitations since she filed her complaint in October 1977, more than one year after Robin returned home. Marcia responds that defendants' conspiracy was extended by the release of the Krishnas' allegedly libelous “Official Position Regarding Robin George” in October 1976. For legal support she directs our attention to Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 157 Cal.Rptr. 392, 598 P.2d 45 in which the Supreme Court held that “when a civil conspiracy is properly alleged and proved, the statute of limitations does not begin to run on any part of a plaintiff's claims until the ‘last overt act’ pursuant to the conspiracy has been completed.” (Id. at p. 786, 157 Cal.Rptr. 392, 598 P.2d 45; see also Aaroe v. First American Title Ins. Co. (1990) 222 Cal.App.3d 124, 128, 271 Cal.Rptr. 434.)
Initially, defendants seek to distinguish Wyatt and limit its holding to cases involving fraud. (Richard Opg. Brief at p. 17.) Our reading of Wyatt, however, convinces us that the Supreme Court intended no such limited proposition. In explaining its conclusion, the court noted that “[s]tatutes of limitations have, as their general purpose, to provide repose and to protect persons against the burden of having to defend against stale claims. [Citations.] So long as a person continues to commit wrongful acts in furtherance of a conspiracy to harm another, he can neither claim unfair prejudice at the filing of a claim against him nor disturbance of any justifiable repose built upon the passage of time.” (24 Cal.3d at p. 787, 157 Cal.Rptr. 392, 598 P.2d 45.) Such a rationale focuses not on fairness to the victim but on the lack of unfairness to the defendant and applies equally to a conspiracy to inflict emotional distress as to one to commit a fraud.30 Here, if the release of the “Official Position” was an overt act in furtherance of a continuing conspiracy, Wyatt holds that Marcia's claim is not barred by the statute of limitations.
Defendants raise two additional arguments. First they contend that plaintiffs failed to prove any conspiracy at all because the members of the alleged conspiracy (affiliated religious corporations and agents of those corporations) are legally incapable of conspiring with each other. Even if a conspiracy is theoretically possible, defendants assert the evidence establishes as a matter of law that whatever conspiracy existed in late–1974 and 1975 involving the transportation and concealment of Robin George necessarily ended in November 1975 when she returned home to her parents. Thus, they claim the release of the “Official Position” was not an overt act in furtherance of any existing conspiracy.
We can assume arguendo defendants are correct that an allegation of conspiracy based on an agreement solely between related corporate entities would be insufficient because a corporation cannot conspire with itself. (See Shasta Douglas Oil Co. v. Work (1963) 212 Cal.App.2d 618, 624, 28 Cal.Rptr. 190.) It is well established, however, that officers and agents of a corporation may conspire to injure third persons through the corporation. (Wyatt v. Union Mortgage Co., supra, 24 Cal.3d 773, 785, 157 Cal.Rptr. 392, 598 P.2d 45; Golden v. Anderson (1967) 256 Cal.App.2d 714, 719–720, 64 Cal.Rptr. 404; see also Doctors' Co. v. Superior Court (1989) 49 Cal.3d 39, 48, 260 Cal.Rptr. 183, 775 P.2d 508.) Here, the evidence was sufficient to show a conspiracy between defendants Rsabadeva and Nityananda which also included unnamed co-conspirators Jayatirtha, Am Su and perhaps others.
The more difficult question is defining the scope of the proven conspiracy. It is established that the objects and purposes to which the conspirators have agreed may be inferred from all the surrounding circumstances including the nature of the tortious acts and the relationship and interests of the parties. (Wyatt v. Union Mortgage Co., supra, 24 Cal.3d at p. 785, 157 Cal.Rptr. 392, 598 P.2d 45; Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 316, 70 Cal.Rptr. 849, 444 P.2d 481.) We have earlier characterized our reading of the record as showing a conspiracy “to assist Robin in running away and to conceal her from her parents, which [defendants] knew was likely to cause the Georges severe emotional suffering.” (Ante, p. 497.) There is no question this was the gist of the conspiracy in November 1974 when Robin first left home, traveled to San Diego and flew from there to New Orleans. Hiding Robin continued to be the sole object of the conspiracy at least until June 1975 when the Georges began their public relations campaign against the Krishna temples in Southern California. At that point, however, the evidence suggests that a secondary object of the conspiracy became the infliction of emotional distress on the Georges. It was then the Krishna leadership began to view the Georges as an independent “enemy.” Certainly Rsabadeva's threat to blow up the Georges car and the related warning that the Georges might never see Robin alive again are consistent with such a conclusion. Similarly interpretable is much of the language in Robin's “Mexico letter” to her parents, drafted by Nityananda, an admitted purpose of which was to cause the Georges to stop their public anti-Krishna campaign. Significantly, the jury was specifically instructed it had to find “a conspiracy to inflict ․ emotional distress” before it could use the “last overt act” rule to extend the statute of limitations. (44 RT 8404.)
Having found that the object of the conspiracy changed in June 1975 to include the infliction of emotional distress on the Georges, it was within the jury's prerogative to conclude that the libelous “Official Position” was an act in furtherance of that continuing conspiracy. The fact that approximately 11 months passed between Robin's return home and the press conference does not necessarily indicate that the conspiracy ended. Clearly the Krishna leadership remained concerned enough about the Georges and their CFF activities to discover that Robin was going to speak at the press conference. It was a question of fact whether from the totality of circumstances it could be reasonably inferred that the conspirators contemplated further acts against the Georges. Nor is it of any significance that not all of the individual or entity defendants were involved with or even aware of the “Official Position.” The fundamental purpose of the civil conspiracy concept is to make each conspirator liable as a joint tortfeasor “whether or not he actually committed the wrongful act.” (Barney v. Aetna Casualty & Surety Co. (1986) 185 Cal.App.3d 966, 983, 230 Cal.Rptr. 215; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 44, p. 107.)
Accordingly, we conclude the record is sufficient to support the jury's conclusion that Marcia's claim for intentional infliction of emotional distress was not barred by the statute of limitations.
Robin and Marcia's libel causes of action are based on the “Official Position” prepared by Makunda and distributed to members of the media and others at the October 29, 1976 Citizens Freedom Foundation (CFF) news conference by devotees from the Los Angeles temple. (See ante, pp. 488–489.) The “Official Position” 31 read in part:
“Robin came to our temple and complained of being beaten by [her parents]. Once she told us that they had chained or teid [sic] her to her bed, and that they had forced a piece of hose down her throat to stop her chanting and singing․ There's a history of this girl running away from her family because of what she told us to be cruelty, beatings, [and] harsh treatment․ For all we know now, her accounts of brutality and beatings were exaggerated or totally fabricated.” (2 CT 702; Exh. 108B.)
In addition to finding defendants liable to Marcia and Robin on the libel causes of action, the jury also answered special interrogatories specifically finding that neither Marcia nor Robin were public figures or private individuals engaged in an event of public interest and that defendants had published their “Official Position” with actual malice. (2 CT 2137–2138.)
Civil Code section 45 32 defines libel as “a false and unprivileged publication by writing ․ which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” Truth is a complete defense to civil liability for libel and the defendant need not justify every word of the allegedly defamatory matter so long as the substance, gist or sting is proved true. (Davis v. Hearst (1911) 160 Cal. 143, 195, 116 P. 530; Hearne v. De Young (1898) 119 Cal. 670, 674, 52 P. 150; 5 Witkin, Summary of Cal. Law (9th ed. 1988), Torts §§ 494–495, pp. 583–584.)
Defendants challenge the verdict on numerous grounds: (1) the evidence produced at trial establishes that the content of the “Official Position” was true; (2) the instructions on “libel per se” were confusing; (3) the court improperly instructed the jury that defendants had the burden of proving truth; (4) the “Official Position” was privileged under the common law doctrine of fair comment; and (5) New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 precludes the imposition of liability on the facts of this case.
We conclude there is insufficient evidence to support the libel verdict in favor of Robin and therefore reverse the judgment as to the third cause of action. As to Marcia, however, we believe defendants' contentions must be rejected. There is substantial evidence to support the jury's implied finding that the “Official Position” was false and defamatory. The claimed instructional errors, to the extent they exist, were either waived or harmless on the facts of this case. Finally, the “fair comment” and New York Times defenses are inapplicable on this record because there is substantial evidence that defendants published the “Official Position” with both common law and constitutional malice. Accordingly, we affirm the judgment in favor of Marcia on the fourth cause of action.
Robin's Cause of Action
We address two issues in our review of the libel verdict in favor of Robin: whether the challenged portion of the “Official Position” states actual facts about Robin and whether it is true or false.
“Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339–340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, fn. omitted.) Even so, a statement couched as an “opinion” may nonetheless imply “an assertion of objective fact.” (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, ––––, 110 S.Ct. 2695, 2705, 111 L.Ed.2d 1.) The critical question is whether the allegedly libelous statement states actual facts about the plaintiff which are provably false. (Id. at p. ––––, 110 S.Ct. at p. 2706; Edwards v. Hall (1991) 234 Cal.App.3d 886, 902–903, 285 Cal.Rptr. 810; see also Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600, 131 Cal.Rptr. 641, 552 P.2d 425.) 33 In order to determine whether the defendant made such a factual statement, the decision-maker 34 must place itself in the position of the reader and “determine the sense or meaning of the statement according to its natural and popular construction” based on the language of the statement and the context within which it was made. (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at pp. 261–262, 228 Cal.Rptr. 206, 721 P.2d 87.)
We conclude as a matter of law that the portion of the “Official Position” which states “[f]or all we know now, [Robin's] accounts of brutality and beatings were exaggerated or totally fabricated” (2 CT 702) is not a provably false statement of fact about Robin. The use of the prefatory language “for all we know now” alerted readers that defendants were merely expressing their opinion regarding the truth of Robin's supposed earlier accounts of brutality at the hands of her parents based on admittedly incomplete information. As the California Supreme Court explained in Baker, “Where the language of the statement is ‘cautiously phrased in terms of apparency,’ the statement is less likely to be reasonably understood as a statement of fact rather than opinion.” (42 Cal.3d at pp. 260–261, 228 Cal.Rptr. 206, 721 P.2d 87, quoting Gregory, supra, 17 Cal.3d at p. 603, 131 Cal.Rptr. 641, 552 P.2d 425, fn. omitted; see also Kahn v. Bower, supra, 232 Cal.App.3d at p. 1609, 284 Cal.Rptr. 244.) Here, we do not think the quoted statement can be reasonably understood as doing other than suggesting the possibility that Robin may have been lying.
We also conclude there is insufficient evidence to support a conclusion that the remaining portion of the alleged defamation was false and/or defamatory as to Robin. The statement that Robin had a “history of ․ running away from her family” was true in the context of the “Official Position” which described two such incidents. There is no dispute that Robin left home initially to join the movement and ran away a second time after she had been returned from the New Orleans center. Statements that Robin had a history of running away because of what she described as “cruelty, beatings [and] harsh treatment” do not libel Robin even if she never made those claims to the Krishna devotees. If anything, references to bad treatment would have justified Robin's behavior in the eyes of the average reader.
Accordingly, the judgment on the third cause of action must be reversed.
Marcia's Cause of Action
The gist of the alleged libel as to Marcia was in calling her a child beater. The court instructed the jury that “[t]he defamatory nature of a false and unprivileged publication must be determined by the natural and probable effect of the publication on the mind of the average reader. Consequently, if the average reader would regard it as a defamatory publication, it may be libelous on its face, even though it is susceptible of innocent meaning.” (44 RT 8397.)
Defendants assert that the “only error [in the ‘Official Position’] lay in the possible implication that Robin said that these things occurred before she left home the first time”, but go on to say the error in chronology was “totally immaterial.” (Kuyt Opg. Brief at pp. 8–9.) We question the first assertion. Robin testified that her father slapped her once on the flight home from New Orleans in April 1975. (9 RT 1518–1519.) She apparently told various people she had been slapped by both her mother and father. (13 RT 2248.) There is a significant difference, however, between a parent “slapping” and “beating” a child. We think the jury could reasonably have found that distinction critical in this case.
In any event, viewing the evidence and all reasonable inferences in the light most favorable to the verdict, we think the jury could also have determined that the average reader would have regarded the chronology as critical to the sting of the message conveyed in defendants' “Official Position.” The clear implication was that Robin came to defendants' temple initially because her parents mistreated her. It is one thing to say that parents restrained their daughter to prevent her from running away again. It is quite another to say that a daughter ran away from home because her parents mistreated her by tying her to a bed. By any definition, there was no evidence suggesting physical mistreatment of Robin prior to her leaving home the first time. It is therefore clear that the chronology described in the “Official Position” was false.
Section 45a states that “[a] libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face,” or libel per se. Such a statement is actionable if reasonably understood by the reader as conveying a defamatory meaning, and if false and unprivileged. (See Slaughter v. Friedman (1982) 32 Cal.3d 149, 154, 185 Cal.Rptr. 244, 649 P.2d 886 and Fisher v. Larsen (1982) 138 Cal.App.3d 627, 642, 188 Cal.Rptr. 216.) Whether a statement is libelous on its face is a question for the court. (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 546, 343 P.2d 36.) “Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he suffered special damage as a proximate result thereof.” (§ 45a.)
Here the court began with various instructions which described falsity as an essential element of libel. (44 RT 8397–8399.) Having determined as a matter of law that the “Official Position” was libelous on its face as to Marcia, the court then instructed the jury using BAJI No. 7.09, Sixth edition 1977 (1982 pocket pt., p. 54) the standard instruction on libel per se in use at the time of trial:
“The court has determined as a matter of law that the statement 108B in evidence is libelous on its face with regard [to] Marcia George, plaintiff, only.
“You are required to determine whether or not said statement was published by the defendant.
“Two, if you find that said statement was published by the defendant, then you must determine whether or not the defendant intended the publication, and the natural and probable effect on the average reader was to defame plaintiff, Marcia George. If you so find, then you must determine whether or not the publication of said statement by defendant was a legal cause of damage to plaintiff, Marcia George.
“If you so find, then you must determine the nature, character and extent of such damage in accordance with my instruction on damages.” (44 RT 8399–8400.)
We agree with defendants that these instructions are potentially misleading because they fail to explain that the jury is still required to determine whether the statement was false. The instructions state that the “Official Position” is libelous on its face and proceed to outline what a reasonable jury could interpret as a comprehensive list of what it was required to determine in order to return a verdict for Marcia.35
We cannot conclude, however, that this potentially misleading instruction requires reversal. First of all, the instructions which immediately preceded the “libel per se” instruction emphasized that truth was an absolute defense: “Since falsity is an essential element of libel, the fact that the published statement is true is always a complete defense, regardless of bad faith or malicious purpose. [¶] Defendants have pleaded the defense of truth to the plaintiffs cause of action for libel. If this defense has been established, it is a complete defense and bars plaintiffs claimed cause of action for libel.” (44 RT 8399, emphasis added.) Thus, while the instruction given was potentially misleading in the abstract, we think it highly unlikely the jury was actually misled.
Moreover, despite defendants' protestations to the contrary, the falsity of the “Official Position” was not a critical issue in the case. Defendants virtually concede it was false at least as to chronology. (See ante, pp. 503–504.) They argue instead that to the extent it was false, it was not defamatory because timing was not essential to the sting. As noted, however, even the challenged instruction specified that the jury was required to determine that “the natural and probable effect [of the publication] on the average reader was to defame plaintiff, Marcia George.” Accordingly, any error in framing the instructions was harmless on the facts of this case.
The court instructed the jury on the common law rule that the defendant had the burden of proving the truth of the “Official Position.” 36 (Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 233, 11 Cal.Rptr. 97, 359 P.2d 465.) Defendants cite Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 and assert that the court should have placed the burden of proving falsity on the plaintiffs.
In Hepps, the United States Supreme Court held that in a defamation action against a media defendant by a public figure or a private figure involved in a matter of public concern, the First Amendment requires that the plaintiff bear the burden of proving falsity.37 (475 U.S. at p. 777, 106 S.Ct. at p. 1564.) Defendants acknowledge that Hepps is facially limited to media defendants, but argue that the force of the decision's reasoning requires that it be extended to all defendants in cases involving expression on matters of public interest.
A major hurdle facing defendants is that they requested the instruction about which they now complain. (6 CT 1999.) Generally speaking, the doctrine of invited error precludes a party from challenging the correctness of an instruction he offered. (See Morris v. Frudenfeld (1982) 135 Cal.App.3d 23, 33–34, 185 Cal.Rptr. 76; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 302, p. 314.) Defendants respond that the United States Supreme Court's intervening decision in Hepps should excuse their failure to present the issue to the trial judge. They rely on Marsango v. Automobile Club of So. Cal. (1969) 1 Cal.App.3d 688, 694, 82 Cal.Rptr. 92, which suggested that an appellant should be permitted to raise an issue for the first time on appeal “where after trial there is a change in judicially declared law which validates a theory that would under the case law as it existed at the time of trial necessarily have been rejected if presented to the trial court․”
We question whether the narrow exception suggested by Marsango applies here. Defendants concede that Hepps does not govern this case because defendants are not members of the media. Thus, while it may be that Hepps supports defendants' argument, it can hardly be said to “validate [their] theory.” Moreover, defendants' proposed instruction placed the burden of proof on defendants regardless of plaintiffs' status as public figures. Yet the United States Supreme Court suggested as early as Garrison v. Louisiana (1964) 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125, that in order to prevail, public officials and inferentially public figures must “establish[ ] that the utterance was false.” (Id. at p. 74, 85 S.Ct. at p. 215.) 38 Finally, the state of California law at the time of trial was not such as to necessarily require the rejection of defendants' burden-of-proof contention. Although California has traditionally placed the burden of proving truth on the defamation defendant (see Lipman v. Brisbane Elementary School Dist., supra, 55 Cal.2d at p. 233, 11 Cal.Rptr. 97, 359 P.2d 465), we are unaware of any case which addresses defendants' contention that placing the burden on the plaintiff is compelled by the federal Constitution. In fact, the Court of Appeal in Field Research Corp. v. Patrick (1973) 30 Cal.App.3d 603, 611–612, 106 Cal.Rptr. 473 acknowledged a defendant's identical constitutional argument but found it unnecessary to resolve the question. This, coupled with the cases from other jurisdictions decided before the trial in this case which state that a defamation plaintiff is constitutionally compelled to bear the burden of proving falsity (see, e.g., Goldwater v. Ginzburg (2d Cir.1969) 414 F.2d 324, 338 (public officials and public figures); Steaks Unlimited, Inc. v. Deaner (3d Cir.1980) 623 F.2d 264, 274 and fn. 49 (dicta); Sellers v. Time, Inc. (E.D.Pa.1969) 299 F.Supp. 582, 584, fn. 2 (matter of public concern); Farnsworth v. Tribune Company (1969) 43 Ill.2d 286, 253 N.E.2d 408, 411 (matter of public concern)), lead us to conclude that defendants are not entitled to relief from the doctrine of invited error.39
Defendants also contend that Marcia's libel judgment is barred by either one or both of two independent but related doctrines: (1) the federal constitutional limitations embodied in New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 and its progeny; and (2) the conditional privilege of “fair comment”, which until recently appeared to have both common law and statutory sources. Because these doctrines have significant common roots and because they were presented to this jury in an overlapping fashion, we consider them together. We begin our discussion with a review of the applicable law in the abstract. We then describe and address defendants' specific contentions.
In New York Times Co. v. Sullivan, the United States Supreme Court held that recovery by a public official for defamation concerning his official conduct requires proof that the statement was made with “actual” or “constitutional” malice.40 The court defined constitutional malice as “knowledge that [the statement] was false or with reckless disregard of whether [the statement] was false or not.” (Id. at pp. 279–280, 84 S.Ct. at p. 726.) “Recklessness” for the purpose of the New York Times standard was further defined in St. Amant v. Thompson (1968) 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 to mean that “the defendant in fact entertained serious doubts as to the truth of his publication.” 41
The court later extended the New York Times rule to “public figures” (Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094) and defined two classes of public figures: those who become public figures for all purposes and in all contexts, and those who voluntarily inject themselves into public controversy and thereby become public figures for a limited range of issues. (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 351, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789; see also Time, Inc. v. Firestone (1976) 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154; Hutchinson v. Proxmire (1979) 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411; Wolston v. Reader's Digest Assoc. (1979) 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450.) Whether a plaintiff is a public official or public figure is a question of law for the court to decide. (Rosenblatt v. Baer (1966) 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (public official); Waldbaum v. Fairchild Publications, Inc. (D.C.Cir.1980) 627 F.2d 1287, 1293, fn. 12 (public figure); Rebozo v. Washington Post Co. (5th Cir.1981) 637 F.2d 375, 379 (public figure).) Recently, clarifying an ambiguous reference in Gertz, the Court explained that where the subject of alleged defamatory statement is a matter of public concern, the First Amendment prohibits the award of presumed or punitive damages absent a showing of constitutional malice. (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) 472 U.S. 749, 757–761, 105 S.Ct. 2939, 2944–2946, 86 L.Ed.2d 593.)
A primary source for the New York Times standard was the common law conditional right or privilege of fair comment. (See New York Times, supra, 376 U.S. at pp. 280–281 and fn. 20, 84 S.Ct. at pp. 726–727 and fn. 20.) The scope of the fair comment right in California was recently clarified by our Supreme Court in Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 257 Cal.Rptr. 708, 771 P.2d 406. Earlier decisions had suggested that the common law fair comment doctrine was incorporated into former Civil Code section 47(3) (now renumbered § 47, subd. (c)). (See, e.g., Snively v. Record Publishing Co. (1921) 185 Cal. 565, 571, 198 P. 1; Maidman v. Jewish Publications, Inc. (1960) 54 Cal.2d 643, 651–652, 7 Cal.Rptr. 617, 355 P.2d 265.) 42 Brown rejected this suggestion, holding that fair comment was a limited common law doctrine largely coincident with the federal New York Times standard, protecting non-malicious statements concerning public officials and public figures.43 (48 Cal.3d at pp. 723, 732, 734 and fns. 18 and 19, 257 Cal.Rptr. 708, 771 P.2d 406.)
The right or privilege of fair comment does not extend to statements published with common law malice, which has been defined as hatred or ill will toward the plaintiff or the lack of reasonable grounds for believing the statements are true. (Manguso v. Oceanside Unified School District (1984) 153 Cal.App.3d 574, 580, 200 Cal.Rptr. 535.) Where the facts and circumstances under which a defamatory statement is made are undisputed, the existence of the fair comment privilege is a question of law. (Gantry Constr. Co. v. American Pipe & Constr. Co. (1975) 49 Cal.App.3d 186, 197, 122 Cal.Rptr. 834; Kramer v. Ferguson, supra, 230 Cal.App.2d at p. 244, 41 Cal.Rptr. 61.) Ordinarily the only question left for the jury is whether the plaintiff can demonstrate that in making the statement, the defendant acted with common law malice. (Gantry Constr. Co. v. American Pipe & Constr. Co., supra, 49 Cal.App.3d at p. 197, 122 Cal.Rptr. 834.)
The thrust of defendants' argument is that the evidence established as a matter of law that Marcia was a public figure, that the “Official Position” concerned a subject of public interest and concern, and that defendants did not publish the statement with either common law or constitutional malice. In more basic terms, defendants argue that the libel judgment in favor of Marcia is not supported by the evidence due to application of the New York Times and fair comment doctrines. We emphasize that generally, defendants do not challenge the correctness of the jury instructions; 44 nor do they complain about the theoretical propriety of the trial court's decision to submit the “public figure” and “public interest” issues to the jury. (See ante, p. 507.)
We have little difficulty concluding that the subject of the “Official Position” is a matter of “public concern.” The CFF called a press conference to discuss the subject of the Hare Krishna “cult.” The press release advertised, “Today you will hear statements made by ex-cult members (Hare Krishna) and parents and learn of their experiences first-hand.” (Exh. 107.) It was in response to this release that the “Official Position” was drafted after Makunda learned that Robin was going to speak at the press conference. (32 RT 6307.) The press conference and the “Official Position” were both directed to the public's legitimate concern with the means by which the Krishna temples attracted new members. The CFF claimed that Krishna converts were “brainwashed” and used Robin George as an example. ISKCON responded by way of the “Official Position” that Robin sought shelter in the temple after running away from her parents. In short, this was a classic case of a clash of opposing points of view on a matter of public interest.
Whether Marcia was a “public figure” is a much closer question. Defendants rely on Marcia's various activities on behalf of CFF including acting as chair of the Orange County chapter during 1977 and appearing on a television show with Robin in December 1976 to discuss their Krishna experiences. These activities, however, post-dated the alleged libel. Generally speaking, an individual's status as a “public figure” must be determined by reference to conduct which precedes the defamatory statement. (E.g., Bruno & Stillman, Inc. v. Globe Newspaper Co. (1st Cir.1980) 633 F.2d 583, 591; Waldbaum v. Fairchild Publications, Inc., supra, 627 F.2d at p. 1295, fn. 19.) Strictly speaking, even Marcia's appearance at the press conference can be excluded from consideration because it occurred after the release of the “Official Position” and because there is no evidence any ISKCON officials knew that Marcia—as distinguished from Robin—would be making a public statement.45
Even assuming that Marcia could be classed a public figure, we believe there is substantial evidence which would support a jury finding that defendants acted with common law malice in publishing the “Official Position.” As to constitutional 46 malice, of course, we do not simply review the sufficiency of the evidence but instead exercise our independent judgment in reviewing the record. (See Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 510–511, 104 S.Ct. 1949, 1965, 80 L.Ed.2d 502; McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 845–846, 231 Cal.Rptr. 518, 727 P.2d 711.) We nonetheless conclude the record firmly supports a finding that defendants acted with constitutional malice.
Makunda testified he did not talk with the central participants in the Robin George affair before drafting the “Official Position”. He admitted he could not be “100 percent certain” the people he contacted were telling the truth. (32 RT 6315.) Makunda recalled being told Robin ran away the second time because of being mistreated but testified “I think that in my haste and being late at night I probably didn't specify that.” (32 RT 6318.) We have difficulty believing the error in chronology resulted from mere mistake or inadvertence. Generally speaking, the trier of fact may reject testimony, even if uncontradicted, where the witness's demeanor, bias or a combination of surrounding circumstances lead the jury to conclude it is untrustworthy. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890, 92 Cal.Rptr. 162, 479 P.2d 362; Hicks v. Reis (1943) 21 Cal.2d 654, 659–660, 134 P.2d 788; People v. Bobeda (1956) 143 Cal.App.2d 496, 500, 300 P.2d 97.) Here, Makunda had every reason to offer a “revisionist” history of the events leading up to the release of the “Official Position.”
Makunda testified he relied in large part on Rsabadeva for the facts concerning Robin's involvement with the Krishna movement. For some reason, he considered Rsabadeva to be reliable for information about Robin George although he doubted Rsabdeva's trustworthiness and truthfulness in other contexts based on his “general character.” (32 RT 6329–6330.) Again, the jury was entitled and we are inclined to reject this rather dubious testimony.
Defendants' admitted purpose in publishing the “Official Position” was to discourage the Georges from speaking out against defendants. (32 RT 6360.) The clear gist of the statement transferred blame for the incident to the Georges in order to exculpate defendants in the eyes of the press and the public. (See Sanborn v. Chronicle Pub. (1976) 18 Cal.3d 406, 414, 134 Cal.Rptr. 402, 556 P.2d 764.) There thus seems little question that defendants acted out of ill will toward Marcia and Robin. And given all the relevant circumstances—including the abundant evidence of official Krishna dishonesty in other contexts—we are convinced that the “Official Position” was prepared without regard for accuracy and that defendants in fact “entertained serious doubts as to [its] truth․” (St. Amant v. Thompson, supra, 390 U.S. at p. 731, 88 S.Ct. at p. 1325.)
Jim George was diagnosed in May 1974 as suffering from myopathy, a condition characterized by an enlarged and weakened heart muscle. (30 RT 5645–5646.) He also suffered from coronary artery disease. (30 RT 5673.) Jim George had a heart attack about four months after Robin returned home and died on September 4, 1976. (30 RT 5669.) The autopsy protocol listed the cause of death as cerebrovascular accident, strokes caused by atherosclerotic cardiovascular disease and anemia of unknown cause. (30 RT 5714.) The jury awarded Robin compensatory damages in the amount of $75,000 on her wrongful death cause of action.47
Defendants argue there is no evidence to support the jury verdict in favor of Robin because their conduct could not have been the cause of Jim George's death and his death was not reasonably foreseeable. They also assert the compensatory damage award was excessive. We conclude otherwise and affirm the judgment in favor of Robin on her wrongful death cause of action.
An appellate court's power of review is properly limited where expert testimony is in conflict.
“It is within the exclusive province of the trier of fact to determine the credibility of experts and the weight to be given to their testimony. [Citations.] Where there is conflicting expert evidence, the determination of the trier of fact as to its weight and value and the resolution of such conflict are not subject to review on appeal. [Citations.] Such determination is had when the trier of fact accepts the proof presented by an expert on one side of the case and rejects that presented by an expert on the other side.” (Francis v. Sauve (1963) 222 Cal.App.2d 102, 119–120, 34 Cal.Rptr. 754.)
Here the jurors accepted the testimony of the Georges' expert, Dr. William Pitt, a cardiologist who had reviewed Jim George's medical records; they rejected the testimony of defendants' expert.
Dr. Pitt testified that stress is considered to be one of the “basic risk factors” of coronary artery disease. (30 RT 5674.) Stressful events raise the level of adrenaline in the blood which, in turn, increases the heart rate and changes the way the heart contracts. (30 RT 5680–5681.)
Dr. Pitt then described how the stress resulting from Jim George's encounters with the Krishna organization contributed to his death in 1976. Pitt said that Jim George had led a relatively normal life. He developed coronary artery disease, but “had no particularly outstanding aggravating circumstance to make it much worse.” (30 RT 5687.) In the middle of this relatively average existence, he suffered the severe impact of losing his daughter and directed virtually all of his energies toward retrieving her. “[T]he trouble he had, trying to locate her, the blind alley that he went up, the contact that he had with the Krishna organization and with the police department, et cetera, continued to aggravate his coronary disease.” (30 RT 5687–5688.)
Dr. Pitt concluded these events significantly accelerated Jim George's illness. In the normal course of the disease and without optimal treatment Jim George's life expectancy should have been at least five years from the onset of the disease. With optimal treatment it would have been “substantially longer.” (30 RT 5688) Dr. Pitt also testified that Jim George's delayed response to the stress—his suffering a heart attack nearly four months after Robin's return home—was a relatively common occurrence. (30 RT 5689)
The jury resolved conflicts in expert testimony in favor of Robin and we may not disturb its implied findings on the question of causation.
There is also ample evidence to support the jury's implied finding that Jim George's death was reasonably foreseeable by the defendants. “The foreseeability required is of the risk of harm, not of the particular intervening act.” (6 Witkin, Summary of Cal. Law (9th ed. 1988), Torts, § 976, p. 367.) If the defendant's conduct was a substantial factor in bringing about the harm, the defendant need not have foreseen the extent of the harm or the precise manner in which it occurred. (Monterrosa v. Grace Line, Inc. (1949) 90 Cal.App.2d 826, 831–832, 204 P.2d 377.)
Marcia explained to Rsabadeva on at least two occasions that her husband had a weak heart, was taking Robin's absence badly, and that she was afraid this would kill him. Marcia reported that Rsabadeva snickered and told her that another devotee's father had a heart attack but did not die. (4 RT 600–601, 630–631.) Marcia also informed Jayatirtha about her husband's weak heart and explained that the inability to find Robin would kill her husband because of the terrible stress it was causing him. (5 RT 1009; 6 RT 1084.) In spite of defendants' knowledge of Jim George's weak heart, they persisted in concealing Robin's whereabouts and subjected the Georges to verbal and physical abuse. (5 RT 750–751, 758–759, 806, 808–809, 914; 10 RT 1634–1636.)
Defendants argue the compensatory damage award was excessive because it represented more than Jim George's entire earnings for a period longer than he was expected to live. However, the plaintiff in a wrongful death action may recover for damages arising from loss of society, comfort, care and protection afforded by the decedent in addition to damages for pecuniary loss of a parent. (Krouse v. Graham (1977) 19 Cal.3d 59, 67, 137 Cal.Rptr. 863, 562 P.2d 1022. Here there is sufficient evidence to establish the close relationship between Robin and her father that would give rise to this type of loss. (7 RT 1141–1144, 1146–1148, 1158–1162.) Although Jim George had a limited earning capacity, viewing the entire record we cannot say the $75,000 wrongful death verdict is so large that “ ‘it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.’ ” (Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal.App.3d 709, 727, 236 Cal.Rptr. 633, quoting Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 507, 15 Cal.Rptr. 161, 364 P.2d 337.)
EVIDENTIARY CONTENTIONSRsabadeva's Prior Felony Conviction and Related Matters
In the context of describing his conversations with Marcia George in late–1974 concerning the basic tenets of the Krishna faith, Rsabadeva was asked whether he personally adhered to those tenets which included non-violence and abstinence from the use of intoxicants such as illegal drugs. Rsabadeva explained that with the exception of the “temperate” use of intoxicants in 1976–1977 (15 RT 2790), he practiced what he preached. (15 RT 2821.) Plaintiffs' counsel was permitted to impeach this testimony by cross-examining Rsabadeva as to felony conspiracy convictions he suffered in 1979 and 1982 related to the possession and distribution of drugs. (15 RT 2941–2942, 2948–2949.) Limited examination was allowed as to the factual basis for one of the charges which included allegations that an individual had been threatened with a shotgun and beaten in an attempt to recover missing drugs. (15 RT 2975–2980.) Counsel was also permitted to briefly question Rsabadeva about a plot to murder several drug dealers based on his testimony before the Orange County Grand Jury under a grant of immunity. (15 RT 2983–2990.) The jury was instructed that the evidence was admissible only against Rsabadeva and was to be considered only for the purpose of assessing his credibility. (15 RT 2941.) Defense counsel repeatedly and vociferously objected to the admission of such evidence on the grounds that it was irrelevant, collateral and unfairly prejudicial.
Defense counsel was correct that Rsabadeva's testimony regarding his following the tenets of the Krishna faith was quite collateral to the issues in this case.48 It was irrelevant for the purposes of plaintiffs' action whether Rsabadeva was a Krishna saint or a fraud. Nonetheless, under the Evidence Code a trial judge has discretion to permit impeachment on a collateral matter. (3 Witkin, Cal. Evidence (3d ed.1986) § 1983, pp. 1939–1940.)
That discretion was properly exercised here. In ruling that he would permit limited cross-examination, the trial court explained it was concerned that Rsabadeva attempted to project a holy and saintly image which might unfairly enhance his credibility in the absence of the impeaching evidence.49 Such considerations were appropriate and the court did not abuse its discretion in allowing the limited inquiry.
Furthermore, even if the evidence should have been excluded, we do not believe it is reasonably probable the evidence affected the verdict. The broad outlines of the facts of this case are largely undisputed, especially as they relate to the acts constituting Marcia's cause of action for intentional infliction of emotional distress. Furthermore, the credibility of many of the Krishna witnesses including Rsabadeva would be subject to serious question in any event based simply on the fraudulent conduct they concededly engaged in as part of their attempts to conceal Robin George. The inquiry regarding Rsabadeva's drug dealings, while damaging in an abstract sense, had no relative impact on this case.
Concealment of Other Minors
Plaintiffs introduced evidence of two unrelated incidents in which defendants ISKCON of California and ISKCON of New York were involved in hiding minor children from one or both parents.50 The trial court allowed the evidence on the theory that it tended to demonstrate the defendants' knowledge and intent with respect to Robin George. (See Evid.Code, § 1101, subd. (b).)
Defendants contend there was no disputed issue as to knowledge and intent and therefore, the admission of the evidence was erroneous and prejudicial. Unfortunately for defendants, this argument effectively concedes the admission of the evidence had no probable effect on the outcome of the case. To the extent the Yanoff and Johnston incidents tend to cast defendants in an unfavorable light, it is only because they employed the same fraudulent practices they concede were followed in their dealings with Jim and Marcia George. Assuming error, a different result is not reasonably probable and reversal is not required. (Alarid v. Vanier (1958) 50 Cal.2d 617, 625, 327 P.2d 897; Kuffel v. Seaside Oil Co. (1977) 69 Cal.App.3d 555, 567, 138 Cal.Rptr. 575.)
JURISDICTION OVER ISKCON OF CANADA
After service of the Georges' complaint, ISKCON of Canada (hereafter ISKCON–Can) unsuccessfully moved to quash service of summons on the ground that it lacked sufficient “minimum contacts” with California to sustain the assertion of personal jurisdiction. (See generally Safe–Lab, Inc. v. Weinberger (1987) 193 Cal.App.3d 1050, 1053, 238 Cal.Rptr. 712.) Pursuant to Code of Civil Procedure section 418.10, subdivision (c), it then sought a writ of mandate which was summarily denied. (2 CT 667.) ISKCON–Can then answered the complaint and proceeded to defend the action on the merits. It now contends it must be permitted to assert its jurisdictional argument on this appeal.
This same contention was addressed and rejected by the Supreme Court in McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 257–258, 74 Cal.Rptr. 389, 449 P.2d 453: “As indicated by authoritative sources published both before and after the enactment of section 416.3 [the predecessor of section 418.10(c) ] in 1955, the Legislature intended (1) that the section would provide [a] method of obtaining appellate review of the order here in question, and (2) that the availability of the interlocutory appellate remedy would, accordingly, preclude review of the order upon appeal from a judgment entered after trial on the merits. [Citations.] [¶] Before section 416.3 was enacted, moreover, the rule was that the unsuccessful moving party waived his jurisdictional objection entirely if he made a general appearance after his motion was denied. [Citations.] Section 416.3 was intended to forestall this consequence by permitting the moving party to defer a general appearance while pursuing the interlocutory appellate remedy [citations], but the section does not relieve him of the consequence if he makes the appearance. [Citation.]”
McCorkle did not involve an out-of-state defendant's assertion that California's exercise of jurisdiction would unconstitutionally offend “traditional notions of fair play and substantial justice.” (See International Shoe Co. v. State of Washington (1945) 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95.) 51 To that extent, McCorkle did not directly consider an argument that what is now section 418.10, subdivision (c) is unconstitutional. Nonetheless, it is clear the Supreme Court understood the constitutional implications in that it cited two personal jurisdiction cases in support of its conclusions. (See Hartford v. Superior Court (1956) 47 Cal.2d 447, 304 P.2d 1; Remsberg v. Hackney Manufacturing Co. (1917) 174 Cal. 799, 164 P. 792.) Moreover, the McCorkle holding has since been applied in the personal jurisdiction context to facts functionally identical to those of this case. (Danzig v. Jack Grynberg & Associates (1984) 161 Cal.App.3d 1128, 1140–1141, 208 Cal.Rptr. 336.)
We accordingly conclude ISKCON–Can waived any objection to the jurisdiction of the California courts by making a general appearance after its petition for writ of mandate was denied.
It is perhaps appropriate at this juncture to review what remains of the original judgment. We have concluded those portions of the judgment awarding damages to Robin George for wrongful death and to Marcia George for libel and intentional infliction of emotional distress must be affirmed. The wrongful death verdict in favor of Robin included no punitive damage award. Thus, the only punitive damages remaining are the remitted amounts of $2 million awarded on the intentional infliction cause of action and $500,000 awarded on the libel cause of action. Both originally constituted a joint award to both plaintiffs but now, if they remain, go solely to Marcia.
As we explained earlier, our first opinion in this case rejected defendants' contentions that this $2.5 million punitive damage award was excessive. (See ante, p. 479.) Following the granting of defendants' petition for certiorari, we have been directed to reconsider our conclusion in light of the U.S. Supreme Court's decision in Pacific Mut. Life Ins. Co. v. Haslip, supra, 111 S.Ct. 1032. In Haslip, the Supreme Court upheld Alabama's system for imposing punitive damages against a challenge that the standardless discretion accorded juries violated due process. The opinion is a case-specific decision focusing on the particular elements of the Alabama process which, the Court concluded, sufficiently channel jury discretion and provide substantive review of the result. Other than explaining that Alabama's procedure passes constitutional muster, Haslip offers little guidance as to what would be necessary to render a different system un constitutional.
Following our receipt of the case on remand, the California Supreme Court filed its decision in Adams v. Murakami, supra, 54 Cal.3d 105, 284 Cal.Rptr. 318, 813 P.2d 1348, addressing whether a plaintiff is obliged to introduce evidence of a defendant's financial condition in order to sustain an award of punitive damages. Both parties filed supplemental briefs arguing the applicability and effect of Adams.
As we shall explain, we have concluded that Adams mandates reversal of the punitive damage award. Having resolved the case on the basis of state law, it is accordingly unnecessary for us to consider the now-academic question whether the punitive damage procedure followed in this case (or generally under prior California law) meets federal constitutional standards. For the guidance of the court on retrial, however, we will comment briefly on several factors mentioned in Haslip which should be considered in reviewing any new punitive award returned by the jury. (See post, fn. 54.)
The Adams case becomes particularly significant because of the way this case was presented to the jury. Defendants initially resisted discovery of evidence of their assets relying on Civil Code section 3295. Subdivision (c) of that section precludes discovery regarding a defendant's financial condition unless the court determines the plaintiff has established a “substantial probability” he or she will prevail on a claim for punitive damages. Late in the trial, the court agreed discovery was appropriate. Defendants provided a minimal number of financial records voluntarily. (31 RT 6072.) Over defendants' sometimes strenuous objections (e.g., 31 RT 6078), the court ordered the production of other documents. Following several lengthy sessions with counsel, however (e.g., 31 RT 6040–6093; 35 RT 6719–6728), the court concluded “defendants' financial condition was indeed a tangled web that would require either a recess of many months to permit discovery or to try the issue before the jury which would require several additional weeks of trial.” (7 CT 2534.)
At this point the trial had already consumed more time than expected. A delay of the magnitude contemplated would, in all likelihood, have exhausted the pool of alternate jurors and resulted in a mistrial. Accordingly, the court gave the Georges two options: Bifurcate the issue of entitlement to punitive damages from the question of amount, the latter issue to be tried only after additional discovery. Alternatively, they would be precluded from offering any evidence of defendants' wealth but defendants would be permitted to introduce such evidence if they believed it would assist their case. The Georges chose the latter option. (46 RT 8808.) Defendants declined to discuss the net worth issue, taking the position plaintiffs bore that burden. (Ibid.) As a result, the jury heard no evidence of defendants' financial condition.
Defendants now contend that Adams requires reversal of the judgment to the extent it awards punitive damages.52 The Georges respond that Adams should not be applied retroactively to evaluate the trial proceedings in this case which occurred during the first half of 1983. Even if it applies theoretically, the Georges argue, the facts of this case materially distinguish it from Adams.
Retroactivity of Adams v. Murakami
We start with the general rule that high court decisions operate retrospectively unless some recognized exception applies. (Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978–979, 258 Cal.Rptr. 592, 772 P.2d 1059.) In looking to possible exceptions, we are faced with a preliminary threshold inquiry whether the decision in question establishes a “new rule of law.” (Donaldson v. Superior Court (1983) 35 Cal.3d 24, 36, 196 Cal.Rptr. 704, 672 P.2d 110.) If it does not, but rather “resolve[s] a conflict between lower court decisions, or address[es] an issue not previously presented to the courts ․ the ordinary assumption of retrospective operation takes full effect.” (Id. at pp. 36–37, 196 Cal.Rptr. 704, 672 P.2d 110, citations omitted.)
Whatever may be the view of the plaintiffs' bar in general or these plaintiffs in particular, it seems clear the Supreme Court viewed its Adams decision as having resolved a conflict among the courts of appeal along lines presaged by its earlier decision in Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 148 Cal.Rptr. 389, 582 P.2d 980. (See generally Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 45–46, 283 Cal.Rptr. 584, 812 P.2d 931.) Neal is cited repeatedly as justification for the Adams result. Indeed, the court of appeal decision referred to as the genesis of the contrary view (Hanley v. Lund (1963) 218 Cal.App.2d 633, 32 Cal.Rptr. 733) was viewed as unpersuasive by the Supreme Court in part because it was decided “long before [the] decision in Neal․” (Adams, supra, 54 Cal.3d at p. 115, 284 Cal.Rptr. 318, 813 P.2d 1348.) In addition, the Supreme Court cited Forte v. Nolfi (1972) 25 Cal.App.3d 656, 102 Cal.Rptr. 455 as illustrating the “better reasoned line of Court of Appeal decisions requir[ing] evidence of the defendant's financial condition.” (Adams, supra, 54 Cal.3d at p. 114, 284 Cal.Rptr. 318, 813 P.2d 1348; see also Alhino v. Starr (1980) 112 Cal.App.3d 158, 179, 169 Cal.Rptr. 136, a case decided before the trial of this case in which the Court of Appeal reversed a punitive damage judgment because of a lack of evidence of the defendant's net worth.)
Even if Adams could be viewed as announcing a new rule of law, the purpose of the new rule is paramount in assessing whether a decision will be applied retroactively. (People v. Garcia (1984) 36 Cal.3d 539, 549, 205 Cal.Rptr. 265, 684 P.2d 826.) Adams' purpose in requiring the plaintiff to introduce evidence of a defendant's financial condition is to insure that any punitive damage award is “sufficient to deter misconduct without being excessive.” (Adams, supra, 54 Cal.3d at p. 113, fn. 3, 284 Cal.Rptr. 318, 813 P.2d 1348; see also id. at p. 111, 284 Cal.Rptr. 318, 813 P.2d 1348; Neal, supra, 21 Cal.3d at p. 928, 148 Cal.Rptr. 389, 582 P.2d 980 (“[T]he function of punitive damages is not served by an award which, in light of the defendant's wealth and the gravity of the particular act, exceeds the level necessary to properly punish and deter.”).) In effect, Adams concludes that evidence of a defendant's financial condition is “essential to the integrity of the fact-finding process” which underlies the award of punitive damages. (See People v. Kaanehe (1977) 19 Cal.3d 1, 10, 136 Cal.Rptr. 409, 559 P.2d 1028.) Under such circumstances, retroactive application of Adams is mandated. (See also Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 740, 2 Cal.Rtpr.2d 594.)
Application of Adams
Citing various factual distinctions between this case and Adams, the Georges argue that the holding in Adams should not apply here. Specifically, they point to the following factors: (1) The plaintiff in Adams made no attempt to obtain evidence of the defendant's financial condition despite knowing from the beginning of the trial that the punitive damage issue would go to the jury. (2) The defendants in this case are neither individuals nor public corporations with readily ascertainable assets. (3) Defendants here waived their right to complain by failing to object when the judge ruled that the plaintiffs' case for punitive damages could go to the jury without evidence of defendants' net worth.
The first two factors are certainly distinctions between this case and Adams, but there is no indication in the Adams that such distinctions were critical to the Supreme Court's reasoning. There is no question that the combination of the Adams rule and Civil Code section 3295, limiting the plaintiff's ability to discover evidence of a defendant's financial condition, poses a substantial hurdle for plaintiff's seeking punitive damages from defendants who are neither individuals nor public corporations. Adams hardly suggests, however, that such defendants are not entitled to the protection of the Adams rule because the burden on plaintiffs is not an easy one to meet.
It is likewise true the Georges' attempts to obtain financial data were impeded by defendants' invocation of section 3295 but that is, after all, the purpose of the statute. There is no contention defendants improperly relied on the statute. Indeed, when they were ultimately required to produce financial information, they did so apparently to the satisfaction of the trial court. In recounting the history on this issue, the judge stated, “The topic became increasingly complicated, not because of any want of cooperation on the defendants [sic] counsel's part, but they tried to cooperate and tried to provide the documents as the court ordered.” 53 (46 RT 8807.) It was at this juncture, in response to the court's determination that sorting out the defendants' net worth would consume an unreasonable amount of time, that the Georges elected to proceed without evidence of defendants' financial condition rather than bifurcate the issue of entitlement to punitive damages from the question of amount. (See ante, p. 515.) Thus, responsibility for the lack of financial evidence cannot fairly be attributed solely or even principally to defendants.
As to the Georges' asserted third distinguishing factor, we find the factual predicate for the argument uncertain. Our review of the record does not convince us that defendants failed to object to the lack of financial evidence before the case was submitted to the jury. Instead, they repeatedly took the position that the court should make a finding as to net worth and instruct the jury accordingly. (See, e.g., 32 RT 6064, 6114–6115.) Defendants did object as part of the motion for new trial. (46 RT 8808.) In any event, even if the Georges are correct, it places this case in the same procedural posture as Adams where there is no indication the defendant there made a pre-verdict objection. Rejecting the plaintiff's contention that any objection was waived, the Supreme Court explained, “[T]he primary interest that must be protected is the public interest in punitive damage awards in appropriate amounts. We cannot allow the public interest to be thwarted by a defendant's oversight or trial tactics.” (Adams, supra, 54 Cal.3d at p. 115, fn. 5, 284 Cal.Rptr. 318, 813 P.2d 1348, emphasis in original.) 54
Conclusion and Instructions for Retrial
In summary, we conclude Adams applies retroactively to all cases not final when it was filed, including this one. We also conclude that the basis for the holding in Adams is not distinguishable from the facts of this case. Because the Georges failed to present evidence of the defendants' financial condition, Adams requires that the punitive damage award here be reversed for a retrial.
The question remains what issues are to be retried. The compensatory awards to Marcia for intentional infliction of emotional distress and libel are the only two bases which will legitimately support the award of punitive damages. The absence of financial data in the record is irrelevant to the question of the compensatory awards. Similarly it did not impact on the jury's finding that defendants' conduct constituted “oppression, fraud or malice” within the meaning of Civil Code section 3294, thus justifying the award of punitive damages. The only reason for requiring evidence of a defendant's net worth is to allow the jury to properly assess the amount of punitive damages and allow the trial and appellate courts to rationally review that determination. Accordingly on retrial, the only issue for the jury to determine is the amount of punitive damages necessary to punish and deter defendants without financially destroying them.
We recognize that under Neal v. Farmers Ins. Exchange, supra, 21 Cal.3d 910, 148 Cal.Rptr. 389, 582 P.2d 980, one of the factors to be considered by the jury in determining the amount of punitive damages is the reprehensibility of defendants' conduct. This would suggest that much if not all of the evidence in the original trial would be theoretically admissible on the limited question of the amount of punitive damages. We rely on the reasonableness of trial counsel and the substantial authority of the trial judge to manage the presentation of evidence on retrial (see, e.g., Evid.Code, § 352) so that the jury receives a fair yet abridged picture of defendants' conduct toward Marcia George.55
The judgment is reversed insofar as it awards damages to Robin George for false imprisonment, intentional infliction of emotional distress and libel with instructions to the trial court to enter judgment in favor of defendants as to those causes of action. Insofar as it awards punitive damages to Marcia George, the judgment is also reversed. In all other respects, the judgment is affirmed. As between Robin George and defendants, the parties are to bear their respective costs for this appeal. Marcia George shall recover all her costs.
1. The four corporate defendants are ISKCON of California, ISKCON of New York (which controlled the Krishna temples in California before the formation of ISKCON of California), ISKCON of Louisiana and ISKCON of Canada.
2. Defendant Roy Christopher Richard was president of the Krishna temple in Laguna Beach. Defendant Nico Kuyt was president of the Krishna temple in New Orleans.
FOOTNOTE. NOTE TO PRINTER: We have departed from our usual practice by including references to the record and briefs in this slip opinion. In view of the factual complexity of the case, we believe such references may be helpful to the parties and, in the event of a petition for review, to the Supreme Court. Because such references do not bear on the case as precedent, they should be excised prior to publication.
3. The letter read in part “Although she pretends to be a devotee of the Krishna Consciousness Movement, she is emotionally and mentally unstable and has been undergoing treatments for a mental condition. It was our mistake to keep this a secret at first. At the time she left home, she was passive and nonviolent. However, the picture can change at any time. Her manner is very deceptive. Also she is a vegetarian, and being hypoglycemic, must limit her intake of foods and sweetened foods.” (8 RT 1355.)
4. In 1974, Jayatirtha was the GBC member in charge of the Western Region of the United States. (20 RT 3733.) He maintained an office in the Los Angeles temple.
5. Robin testified that before going out on sankirtan, the devotees would dress in non–Krishna “karmi” clothes. They were instructed to misrepresent their affiliation and purpose in order to obtain donations (e.g., working for UNICEF, an orphanage, a drug rehabilitation center, etc.). (8 RT 1367.)
6. At trial, Robin explained that Lord Nsringadev was a half-lion/half-man form of Krishna who came down to earth and destroyed the father of a devotee who objected to his being in the Krishna movement. (9 RT 1535–1536.)
7. Grass had told Robin she was supposed to purchase a ticket to Dallas. (9 RT 1559.)
8. Robin described the residents of the house as “fringe members of Hare Krishna.” (9 RT 1555.)
9. The letter stated:“As you will remember, on June 1, I sent out a letter to all temples presidents in regards to one Robin George (spiritual name Rajanath devi dasi). In that letter I requested that if any of you had seen her or if she was living in any of your temples that you should contact me and she should contact her parents. However, I have received no response upto this date. Now recently, the George's have stepped up their anti–Iskcon publicity campaign, and have gone to the extent of contacting the attorney general of the State of California to try to press criminal charges against soem of us. Of course they have no grounds for pressing such charges but at the same time it is a fact that we are working very hard against all odds to try to establish ourselves as a responsible institution so such publicity is not at all good. Please, therefore, be sure to inform me if you have seen this girl. Now, if she is in your temple and is afraid to contact her parents, have her contact me directly and I will try to work something out as an inter-media.” (Exh. 87, grammar and spelling as in the original.)
10. The letter included a photograph supposedly showing Robin and the musicians in Mexico. In fact, Am Su had taken the photograph in front of a lake in Ottawa. (9 RT 1596–1597.)
11. Robin's letter read as follows:“Dear Mom and Dad,“Please be informed that I'm alright, healthy (I've gained some weight,) and happy. I heard you're worried and think I'm living at a temple so I'm writing this to straighten things out.“Actually what happened is that after staying with you a few weeks I could clearly see that everything the devottees said wasn't 100 percent true and that there were some contradictions in their philosophy and actions. Although they're really nice people and I still love them, I wouldn't ever want to live with them again. Living at their temple however was a good experience in growing up because it gave me a taste for independence. I think because of it I'm a more aware and mature individual and because of that I could never again live with you either. (Especially after the way you treated me like a dog when I was just coming down from that heavy experience. What I really needed was comfort and love. It's quite a shock you know to be thrown from one atmosphere into another overnight.) Because of your own lack of understanding and my newly acquired taste for independence, I had to leave you again. I'm sorry if it hurts you but you've hurt me many times over in the cruel, inhuman way you treated me. Even if you thought my mind was disturbed, that's no way to treat anything. (I have more compassion for a blade of grass then that.) I know you thought it would help me, but look where it got you—I'm not living with you now.“Anyway, I've met some far-out people who are also searching for the truth. They're muscians and I'm learning a lot from them. We're traveling around quite a bit so please don't try and find me. It's so nice—we're all truth-seekers, peace lovers, and nature freaks. I'm sending you a picture so you can see I'm alright.“There's so much beauty in this world, and we live such a short life, so just try to enjoy it. I'm very bitter about how you've treated me and can't say I ever want to see you again. Please just mellow out—that's what I'm doing and it's the only way to live. Life's got so many wonderful experiences and things to learn, and their all just around the corner. I know you want me to be there to share them with you but I've grown up.“Don't hassle the Hare Krishna devottees and don't hassle anyone. Just try to feel compassionate and peaceful within your self.“Please understand I'm making my own decisions now and it's very nice, this freedom. I can go where I want, do what I want, and be what I want. I'll admit I may have been wrong in my ideas, and now they're changed, so I'm asking let's forget the whole thing ever happened. I wanted to be independent and run away since I was 13 and the devottees were a good excuse, especially since Caron and John were into it. So just except my independence. I have my own job, buy my own food, etc. It's far out. Basically I'm saying, just don't blame anyone or anything I used to gain my independence with. Especially the devottees. Basically they're truth-seekers too but in a different way.“I've changed and you must change, so just try and be good to others. (That's what Jesus taught.)“Love, your crazy daughter, Robin.” (Exh. 91, grammar and spelling as in the original.)
12. At trial Robin testified she gave little thought to the effect the letter would have on her parents. She stated that at that point, she simply viewed them as “karmi meat eating demons.” (9 RT 1601.)
13. Hanuman testified he returned to the farm the day after Robin arrived. (40 RT 7703.)
14. Amberg testified he told Jayatirtha, “Hello, Mr. Bastard, I have just about got you by the balls. I now have a witness that's willing to testify.” Later in the conversation, when Jayatirtha protested that he had relied on Nityananda, Amberg replied, “You can tell that lying SOB that he will be the next one I will be after.” (19 RT 3631.)
15. The release stated the following:“Robin George became interested in our movement in Laguna Beach. Apparently, her parents disapproved of the idea. On several occasions, Robin came to our temple and complained of being beaten by them. Once she told us that they had chained or teid her to her bed, and that they had forced a piece of hose down her throat to stop her chanting and singing. However accurate these accounts may have been, she relayed them to at least twenty-five people at the Laguna Beach center. As a result, they gave her shelter. Privately (without using official funds), they helped her arrange her journey to the New Orleans center. In other words, Robin insisted on running away from home and on joining the movement.“[T]he problems of her being a minor was not considered at that time. We didn't know her family's reaction against our movement was going to be so strong. After Robin arrived in New Orleans, her family got her back, then she ran away again. There's a history of this girl running away from her family because of what she told us to be cruelty, beatings, harsh treatment. Robin also went to Canada. This was all being arranged privately. Temple funds, ISKCON funds, were not involved. ISKCON's leaders were never involved or consulted about what was going on. During all this time, Robin's parents were persistently investigating and demanding her return.“Eventually they inquired from our coordinator in Los Angeles, and the police did likewise. We cooperated by mailing letters to all our American centers, along with photographs of the girl—we can document that—and these letters and photographs were posted on bulletin boards in all those centers. Finally, we learned that this girl had turned up in our center in Ottowa, Canada. Although she was reportedly reluctant to return home, an attorney advised us that she had no choice.“The matter was very delicate, because the parents had gotten proof that she was taking shelter in our New Orleans and Ottawa centers. As a result, they were planning to press charges against the International Society for Krishna Consciousness. So, to ease the burden of giving her over to her parents, for the first time the ISKCON leadership got involved and brought Robin from Ottawa to Los Angeles. The only purpose for bringing her to Los Angeles was to give her over to her family. But upon her arrival in Los Angeles, what we feared actually happened—she ran away. She'd been telling us all along that her parents treated her terribly and that she was going to run away, and that's precisely what she did.“Yet, amazingly, she went to the parents. For all we know now, her accounts of brutality and beatings were exaggerated or totally fabricated. The thing is that now, when asked her reason for turning against the Krishna consciousness society, she says, ‘․ because they wanted to send me home.’ In her statements to a Laguna Beach newspaper she says that our members were forcing her to return home.“So the charges of her family were that we were involved in an international conspiracy is absurd. At no time before the girl was discovered in our Ottawa temple did the leadership of our religion know that she was actually in one of our temples. As soon as we found out, we made arrangements to bring the girl home to her family, and it is that very fact that turned her against us. How can her parents dare claim that we were involved in a conspiracy to keep this girl away from them?” (Exh. 108B, grammar and spelling as in the original.)
16. In argument to the jury, plaintiffs' counsel stated as follows: “[T]he whole nut of this case revolves around this false imprisonment charge․ Once you analyze that evidence, then other things either fall into place or they don't fall into place.” (44 RT 8481.) Later, counsel pursued this same theme in more detail: “Now, I suggest to you, ladies and gentlemen, that the plaintiffs have proven a false imprisonment as to Robin George. I submit that what you ought to do when you deliberate is you ought to decide this issue first. You can approach this in any way you want, but it seems to me if there was no false imprisonment that the rest of this stuff is a lot of hogwash, because that means that Robin decided to run away from home and torment her parents and it's all her fault anyway. It just wouldn't be fair to find against the defendants in [those] circumstances.” (44 RT 8526–8527.)While it might be tempting to treat counsel's comments as tantamount to a concession, we do not believe a lawyer's argument to a jury can or ought to foreclose an appellate court from fairly evaluating the legal merits of a case. In other words, counsel's statement to that effect is an insufficient basis for us to conclude that all aspects of this case stand or fall with the false imprisonment count. Accordingly, we will review each cause of action separately.
17. Penal Code section 237 recognizes that false imprisonment may be accomplished by means of fraud or deceit. (See People v. Rios (1986) 177 Cal.App.3d 445, 222 Cal.Rptr. 913; see also People v. Henderson (1977) 19 Cal.3d 86, 94, 137 Cal.Rptr. 1, 560 P.2d 1180.) The evidence does not suggest that Robin was confined in any of the Krishna temples by fraud, nor was such a theory ever argued by plaintiffs at trial.
18. Robin testified as follows:“Q. While you were in New Orleans were you restrained against your will in that temple?“A. Restrained in what way?“Q. Confined?“A. I mean, are you saying physically?“Q. Physically?“A. Physically, no.“Q. I take it the same is true of Laguna Beach, and the same is true of Ottawa, is that correct?“A. Yes.“Q. When your father brought you home to Los Angeles or Cypress, that was against your will, wasn't it?“A. What do you mean?“Q. You didn't want to go, did you?“A. No, I didn't.“Q. So your will was to stay in New Orleans, wasn't it?“A. To stay a Hare Krishna devotee.“Q. In a Hare Krishna temple?“A. Yes.“Q. Not to go home?“A. Yes.“Q. So wasn't it against you will that you went home?“A. Yes, I suppose.” (11 RT 1910–1911.)“Q. Were you restrained or confined or detained in Canada against your will? And I am talking about physical restraint, confinement or detention?“A. No.“Q. No one ever forced or threatened you with force while you were in Canada, isn't that correct?“A. That's correct.” (11 RT 1959.)“Q. At any time from the time you first encountered Mr. Roy Richard until the last time you saw him at the Los Angeles temple, did Mr. Roy Richard ever forcibly restrain you?“A. No.” (11 RT 1864–1865.)“Q. [A]t no time when you were in New Orleans or when you were at a farm in Mississippi, or when you went to Dallas and came back, were you ever forcibly restrained by the defendant Nico Kuyt, isn't that true?“A. I was never, no.” (11 RT 1884.)
19. During the initial drive, Parnell refused Steven's requests to contact his parents. Thereafter, he told Steven that he had obtained legal custody. Parnell gave the boy a new name and threatened to spank him if he revealed his true identity. On occasions when he had to leave, Parnell gave Steven sleeping pills so he would sleep until Parnell returned. (Id. at p. 398, 173 Cal.Rptr. 906.)
20. As a general proposition, conduct which would otherwise be tortious is not actionable if the plaintiff consents to it. “Consent ordinarily bars recovery for intentional interferences with person or property. It is not, strictly speaking, a privilege, or even a defense, but goes to negative the existence of any tort in the first instance.” (Prosser & Keeton, Torts (5th ed. 1984) § 18, p. 112; see also Civ.Code, § 3515 (“He who consents to an act is not wronged by it.”).)
21. Interestingly, the stipulated facts in the case provided that the girl had a “mental age” of 7 years and 2 months at the time Chatwin first began discussing with her the concept of celestial marriage. (Id. at p. 457, 66 S.Ct. at p. 234.) The Court rejected the Government's contention that this fact was sufficient to establish her inability to consent: “[T]he method of testing the girl's mental age is not revealed and that there is a complete absence of proof in the record as to the proper weight and significance to be attached to this particular mental age․ Under such circumstances a stipulated mental age of 7 cannot be said necessarily to preclude one from understanding and judging the principles of celestial marriage and from acting in accordance with one's beliefs in the matter.” (Id. at p. 462, 66 S.Ct. at p. 236.)
22. Cases such as People v. Rios (1986) 177 Cal.App.3d 445, 222 Cal.Rptr. 913 (13–month–old victim) and People v. Campos (1982) 131 Cal.App.3d 894, 182 Cal.Rptr. 698 (11–month–old victim) do not suggest a contrary result in holding that a defendant may be convicted of both kidnapping or false imprisonment and child stealing. (Rios, supra, 177 Cal.App.3d at p. 450, 222 Cal.Rptr. 913; Campos, supra, 131 Cal.App.3d at p. 899, 182 Cal.Rptr. 698.) Unlike Moore and Gillispie, Rios and Campos concerned minors with no capacity to consent.
23. A different question might be presented if it could be shown that a religious group adopted certain devotional practices for the purpose of brainwashing potential converts. No such evidence was presented in this case and we decline to express any opinion on the matter.
24. Robin asserts she was fraudulently induced to join the Krishna movement based on representations by Rsabadeva that she could not practice the religion at home. (See Resp. Pet. for Rhg. at pp. 12–13.) At trial, Rsabadeva denied that living in a temple constituted a tenet of the Krishna religion. (16 RT 3193.)We have reviewed the portions of the record cited to us and other contextual testimony. To begin with, Robin never testified that absent these representations she would not have left home. Moreover, Rsabadeva did testify that in order to practice Krishna consciousness at home, a devotee was required perform certain rituals such as worshipping at an altar and chanting. (16 RT 3187.) Robin, of course, was prohibited by her parents from engaging in such practices at home. (See ante, p. 480.) Thus, assuming Rsabadeva made such representations to Robin, they are most reasonably interpreted not as a statement of Krishna theologic doctrine but rather as his opinion regarding Robin's ability to successfully practice the religion at her home.
25. The Georges argue the intentional infliction issue as follows: “The jury's conclusion is supported by ample evidence of defendants' misconduct toward Robin. The record is replete with accounts of Robin's arduous life with defendants:—“Robin was made to work grueling hours with very little in the way of sleep or sustenance.—“All of her possessions were taken away; she was forced to plead for such common items as shoes, clothing and health care.—“She was required to do menial labor and forced to beg for money.—“Robin was deprived of any meaningful contact with the outside world. She was separated from the nurturing influence of family and friends; she was not even allowed to correspond.—“Robin was deprived of the simple joys of life. She was not permitted to read books or newspapers, view television or even listen to the radio.—“Most important, Robin was moved from place-to-place without regard to her personal wishes. Quite apart from the tortious purpose of these movements, defendants forced Robin to travel to Louisiana, Mississippi, New York, Canada, Michigan and Los Angeles without so much as asking her permission.” (Resp. Brief at pp. 119–120.)It should be noted that plaintiffs' use of the word “forced” on several occasions in this passage are clearly characterizations rather than objective statements of fact. Although she was instructed to do certain things by her superiors in the Krishna faith, there is no evidence Robin was ever threatened with physical force if she failed to comply. Apart from the metaphysical question of brainwashing, there was every objective indication that Robin actively sought defendants' assistance and fully cooperated in their efforts to hide her from her parents.
26. Molko rejects the Church's arguments in the following language:“The Church offers two arguments why its conduct was not, as a matter of law, extreme and outrageous. First, it contends its actions amounted to nothing more than ‘intensive religious practice,’ and therefore were different only in degree, not in kind, from those of many other religious groups. We find this claim unconvincing. Although fasting, poverty, silence or cloistered living may constitute intensive religious practice, we have already determined that fraud, even though purported to be religiously motivated, is actionable conduct under the circumstances presented here.“Second, as mentioned above, the Church argues that Leal's long hours of work were ‘self-inflicted.’ It contends its encouragement for her to sell flowers and solicit money does not constitute outrageous conduct. But since the conduct that the Church relies on occurred after Leal had formally joined the Church, the argument has no bearing on whether its original fraudulent inducement into an atmosphere of coercive persuasion—the conduct at issue—is extreme and outrageous.“Viewed in the light most favorable to the plaintiffs, the Church's continued deceptions might well be seen as conduct breaching plaintiffs' trust in the integrity of those who were promising to make their lives more meaningful.” (46 Cal.3d at p. 1122, 252 Cal.Rptr. 122, 762 P.2d 46, emphasis added.)
27. We also reject defendants' contention that they have been unconstitutionally subjected to tort liability for merely preaching “that a religion may be most fully or successfully practiced in a religious community” and opining that “a minor's parents will not let the minor practice Krishna consciousness while living at home.” (Richard Opg. Brief at p. 9.) Because the actionable conduct here involved far more than the mere preaching of religious beliefs or making statements of opinion, we need not consider whether religiously motivated importuning of a minor to leave his parent or guardian, standing alone, is absolutely protected or is subject to some sort of “clear and present danger” test. (Cf. Schenck v. United States (1919) 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470; Whitney v. California (1927) 274 U.S. 357, 372–373, 47 S.Ct. 641, 647, 71 L.Ed. 1095 (conc. opn. of Brandeis, J.); Brandenburg v. Ohio (1969) 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430.)
28. Section 49 provides in relevant part: “The rights of personal relations forbid ․ [t]he abduction or enticement of a child from a parent, or from a guardian entitled to its custody․”
29. For reasons which should be apparent from the tenor of our discussion, we also reject defendants' contention that the award of $400,000 compensatory damages to Marcia was excessive as a matter of law because it could only be based on her reaction to her daughter leaving home, an event for which the defendants were not responsible.We also reject plaintiffs' contention raised in their cross-appeal that the trial court's inadequate statement of reasons in support of the conditional new trial order requires that the original jury award of $1.5 million be reinstated. (See generally Mercer v. Perez (1968) 68 Cal.2d 104, 65 Cal.Rptr. 315, 436 P.2d 315.) If we were to agree with plaintiffs that the statement of reasons was inadequate, we would then be required to evaluate the greater jury verdict amount to determine whether it was excessive. On the facts of this case, we think $1.5 million is clearly an excessive amount to compensate for emotional distress without physical injury or disabling consequences. We do not believe an award in excess of $400,000 could be justified.
30. One of defendants' arguments is merely a rehash of a contention rejected by the Supreme Court in Wyatt. Defendants state: “In contrast to its place in the criminal law, a charge of civil conspiracy is not itself an actionable wrong; it is the tortious conduct committed as a result of the conspiracy that is actionable․ Accordingly, when a tort is committed as a result of a conspiracy and the victim is aware that he has been injured by the tortious conduct, the statute of limitations begins running on that tort.” (Richard Opg. Brief at p. 18.) This same contention was raised and rejected in Wyatt. (24 Cal.3d at pp. 786–787 and fn. 4, 157 Cal.Rptr. 392, 598 P.2d 45; compare id. at pp. 795–796, 157 Cal.Rptr. 392, 598 P.2d 45 (conc. and dis. opn. of Richardson, J.).)
31. See full text of the “Official Position” ante at fn. 15.
32. All statutory references in the discussion of the libel causes of action are to the Civil Code unless otherwise specified.
33. Several recent cases have recognized that Milkovich did not substantially change the principles which guide the determination whether a particular statement is actionable, but merely clarified there is no automatic exemption for statements labeled as “opinion.” (See Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 724–725, 275 Cal.Rptr. 494; Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1607, 284 Cal.Rptr. 244.)
34. This ambiguous reference is intentional. As one federal court has explained, “[T]he overwhelming weight of post-Gertz authority [is] that the distinction between opinion and fact is a matter of law.” (Ollman v. Evans (D.C.Cir.1984) 750 F.2d 970, 978.) The California Supreme Court appeared to adopt this approach in Gregory v. McDonnell Douglas Corp., supra, 17 Cal.3d 596, 601, 131 Cal.Rptr. 641, 552 P.2d 425. Then, in Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 681–682, 150 Cal.Rptr. 258, 586 P.2d 572, the court proffered a seemingly contrary rule, holding that it frames a jury question unless the court can “as a matter of law characterize it as either stating a fact or an opinion.” (Id. at p. 682, 150 Cal.Rptr. 258, 586 P.2d 572.) Gregory was ostensibly distinguished: “that remains the rule if the statement unambiguously constitutes either fact or opinion.” (Ibid.) More recently, however, in Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 228 Cal.Rptr. 206, 721 P.2d 87, the court stated uncategorically that “whether the statement at issue was a statement of fact or a statement of opinion ․ is a question of law to be decided by the court.” (Id. at p. 260, 228 Cal.Rptr. 206, 721 P.2d 87.) In support of this proposition, the Baker court cited Gregory but made no mention of Good Government.We view the Good Government formulation as merely a restatement of the general rule applicable to summary judgments and appellate review of sufficiency-of-the-evidence contentions: Factual questions are for the trier of fact to resolve unless reasonable jurors could only reach a single conclusion, in which case the court may determine the issue as a matter of law. (See, e.g., Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 971, 227 Cal.Rptr. 106, 719 P.2d 676; Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 56, 192 Cal.Rptr. 857, 665 P.2d 947.) If this view is accurate, it is at best misleading to say that the characterization of an allegedly defamatory statement is a question of law for the court. It is a question of law only to the extent any factual issue may be resolved as a matter of law where the evidence presents no genuine issue of fact. As such, Good Government has been criticized by at least one federal court. (See Janklow v. Newsweek, Inc. (8th Cir.1986) 788 F.2d 1300, 1305, fn. 7; see also Hoffman Co. v. E.I. Du Pont de Nemours & Co. (1988) 202 Cal.App.3d 390, 398, fn. 5, 248 Cal.Rptr. 384; but see Kahn v. Bower, supra, 232 Cal.App.3d at p. 1608, 284 Cal.Rptr. 244.)If our reading of Good Government is correct, it seems inconsistent with the Baker standard and may have been sub silentio overruled by Baker. We need not decide that question here. As we explain, we are convinced no reasonable juror could interpret the statement other than as a suggestion of the possibility that Robin may have lied. (See post, p. 503.)
35. The current version of BAJI No. 7.09 corrects this omission:“The court has determined that the statement _ is [libelous] [slanderous] [if untrue].“You are required to determine:“1. Whether or not said statement was [untrue and] intentionally published by the defendant.“2. If so, whether or not the natural and probable effect on the average [reader] [listener] was to defame plaintiff.“3. If so, whether or not said publication was a [legal] [proximate] cause of damage to plaintiff.“4. If so, then you must determine the nature, character and extent of such damage.” (BAJI No. 7.09 (7th ed. 1986), p. 268.)
36. The court instructed the jury as follows:“Defendants have the burden of proving truth by a preponderance of the evidence as will be defined by this court. To establish this defense defendants must prove the truth of all relevant parts of the document.“However, the defendants are not required to prove the truth of every word of the document, or to prove its literal truth. If defendants prove that the substance, the gist or the [inaudible] of the charge is true, it is sufficient to establish the defense of truth.“Moreover, the defendants need only prove the substance of the document is true, irrespective of slight inaccuracies in detail.” (44 RT 8399.)
37. We recognize that the jury returned a special finding that Marcia was not a public figure or a private figure involved in an event of public interest. (6 CT 2137–2138.) Such a finding, if supported by the evidence, would provide an independent basis for refusing to apply Hepps. As we explain later, however, we seriously question at least the finding that the “Robin George affair” was not a matter of public concern by the time of the CFF press conference. (See post, pp. 509–510.)
38. In fact, defendants are apparently of the view that this principle “has been established for some time” (Kuyt Opg. Brief at p. 12, fn. 5), a concession we view as equally correct at the time of trial.
39. Even assuming defendants could raise the issue of instructional error, and further assuming Hepps would apply in the case of a nonmedia defendant, the Court in Hepps was careful to point out that the burden of proof “is the deciding factor only when the evidence [regarding truth or falsity] is ambiguous․” (475 U.S. at p. 776, 106 S.Ct. at p. 1564.) As we explained previously, defendants here virtually concede that the “Official Position” was false as to chronology. The crux of their argument is that a reasonable reader would not have viewed the falsity as defamatory because the described events actually occurred at a different time. (See ante, pp. 503–504.) Defendants do not contend they were forced to assume the burden of proving that issue. In our view, there is no reasonable possibility the burden of proof instruction affected the verdict.
40. New York Times refers to the concept only as “actual malice.” Later decisions have substituted the term “constitutional malice” because of confusion between “actual malice” in the New York Times sense, which focuses on the defendant's attitude toward the truth of the publication, and common law “actual malice,” which has traditionally signified hatred of or ill will toward the plaintiff. (See, e.g., Ryan v. Brooks (4th Cir.1980) 634 F.2d 726, 731, fn. 4; Tate v. Bradley (5th Cir.1988) 837 F.2d 206, 207; see also Owens v. Okure (1989) 488 U.S. 235, 249, 109 S.Ct. 573, 581, 102 L.Ed.2d 594; McNair v. Worldwide Church of God (1987) 197 Cal.App.3d 363, 376, 242 Cal.Rptr. 823; see generally Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 9–11, 90 S.Ct. 1537, 1539–1540, 26 L.Ed.2d 6; Cantrell v. Forest City Publishing Co. (1974) 419 U.S. 245, 252, 95 S.Ct. 465, 470, 42 L.Ed.2d 419.) In the interests of avoiding such confusion, we will employ the term “constitutional malice” when referring to the New York Times concept.
41. The only New York Times instruction given in this case, BAJI No. 7.04 (6th ed. pocket pt.), was offered by defendants.“A published statement about a public figure or a private individual engaged in an event of public interest is absolutely privileged, even if false and untrue, unless the publication was made by the defendant with actual malice or a reckless disregard for the truth.” (44 RT 8398.)As a New York Times instruction, however, BAJI 7.04 suffers from two glaring errors. First, following Gertz v. Robert Welch, Inc., supra, 418 U.S. 323, 94 S.Ct. 2997, the New York Times standard applies to public figures but does not apply to private individuals engaged in an event of public interest. The “public interest” standard of Rosenbloom v. Metromedia, Inc., (1971) 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 was specifically rejected in Gertz. (See 418 U.S. at p. 346, 94 S.Ct. at p. 3010.) Second, the New York Times decision defined “actual malice” as “knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” (376 U.S. at p. 280, 84 S.Ct. at p. 726.) The slightly different formulation included in this instruction becomes fundamentally inaccurate when one realizes that “actual malice” was later defined for the jury using only the common law “hatred or ill will” formulation.
42. Section 47, subdivision (c) reads:“A privileged publication or broadcast is one made—“․“(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.”In Snively v. Record Publishing Co., supra, the Supreme Court reasoned that “the official conduct of public officers ․ is a matter of public concern of which every citizen may speak in good faith and without malice.” (185 Cal. at p. 571, 198 P. 1.) As such, the general public appeared to be “persons interested” within the meaning of section 47(3). (Id. at p. 572, 198 P. 1; accord Kramer v. Ferguson (1964) 230 Cal.App.2d 237, 242, 41 Cal.Rptr. 61.)
43. Brown relied on Gertz v. Robert Welch, Inc., supra, 418 U.S. 323, 94 S.Ct. 2997 in dismissing the media defendant's argument that the right of fair comment should extend to any statement concerning a subject of “public interest.” Interestingly, perhaps reflecting the ebb and flow of decisions in this area applying concepts with common analytic roots but distinct doctrinal evolution, the United States Supreme Court in two recent cases has in a sense retreated from Gertz and articulated a difference in standards which turns not on whether the plaintiff is a “public figure” but on whether the content of the allegedly defamatory statement involved a matter of “public concern.” (See Dun & Bradstreet, Inc., supra, 472 U.S. 749, 105 S.Ct. 2939 (plaintiff must establish constitutional malice to recover presumed and/or punitive damages where statement involves a matter of public concern); Philadelphia Newspapers v. Hepps, supra, 475 U.S. 767, 106 S.Ct. 1558 (plaintiff bears burden of proving falsity of statement by media defendant on issue of public concern).)
44. We note in particular defendants do not challenge the trial court's failure to instruct the jury pursuant to Gertz and Dun & Bradstreet that a finding of constitutional malice is required to sustain an award of punitive damages where the libel relates to a matter of public concern. (See ante, p. 507.) We assume this is because defendants, having failed to propose a correct instruction, must be viewed as having waived their right to complain. (Hyatt v. Sierra Boat Co., (1978) 79 Cal.App.3d 325, 335, 145 Cal.Rptr. 47.)Defendants do make two minor assertions of instructional error. In footnote references, they challenge BAJI No. 7.06 (6th ed. 1982 pocket pt.) as an inaccurate statement of the New York Times constitutional malice standard (Kuyt Opg. Brief at 31, fn. 17) and for failing to explain that hatred or ill will in the common law malice context must be defendants' primary motivation (id. at p. 22, fn. 11). Having offered the 7.06 instruction without modification, however, any inaccuracy or inadequacy is plainly unreviewable. (See generally Morris v. Frudenfeld, supra, 135 Cal.App.3d at pp. 33–34, 185 Cal.Rptr. 76; Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519, 523, 113 Cal.Rptr. 277.)Contrary to defendants contention, this is not a case in which the trial court completely failed to instruct the jury on a critical issue. (See, e.g., Herbert v. Lankershim (1937) 9 Cal.2d 409, 482, 71 P.2d 220; Paverud v. Niagara Machine & Tool Works (1987) 189 Cal.App.3d 858, 863, 234 Cal.Rptr. 585; Distefano v. Hall (1963) 218 Cal.App.2d 657, 672, 32 Cal.Rptr. 770.) Here, the trial court gave instructions requested by the defendants which purported to cover the critical issues in the case but, in fact, covered them incorrectly. Under established law, this invited error estops defendants from complaining about the accuracy of the requested instructions. We also reject defendants' suggestion that the Orange County Superior Court rules, which require the use of standard BAJI instructions “insofar as practicable” (rule 306), mandate or even excuse the submission of legally incorrect standard instructions.
45. Assuming her participation in the press conference could be considered, we think it likely Marcia would qualify as a public figure. Unlike the plaintiff in Time, Inc. v. Firestone, supra, 424 U.S. 448, 454–455, footnote 3, 96 S.Ct. 958, 965, footnote 3, Marcia used the press conference as a forum in an attempt to affect the resolution of a public issue.
46. We have serious concerns whether defendants can raise the issue of the sufficiency of the evidence to support a finding of “constitutional malice.” As we noted earlier, it was defendants who requested the BAJI Nos. 7.04 and 7.06 instructions which, taken in combination, essentially told the jury that common law malice would suffice to establish constitutional malice. (See ante, fns. 41 and 44.) We question how a party, having proposed one set of incorrect instructions on an issue, can challenge the jury's finding on that issue measured against a different but correct statement of the law. (Cf. Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1534–1535, 254 Cal.Rptr. 492.) Because the issue is of a constitutional magnitude, however, and out of an abundance of caution, we assume arguendo defendants have not waived their right to complain and proceed to consider the merits of their contention.
47. Marcia made no claim on a wrongful death theory.
48. Moreover, Rsabadeva's use of drugs or resort to violence was not at issue. Rsabadeva's threat to blow up the Georges' car could not justify admission of unrelated prior acts of violence. (Evid.Code, § 1101, subd. (a).)
49. The trial court stated:“But the record doesn't show the sort of—for want of a better description—holier-than-thou kind of demeanor. When Mr. Richard took the witness stand and as he sits in the courtroom watching the trial, his hands are usually folded in front of him, or joined together in front of him under his chin in a sort of prayerful manner. He has a sort of smile on his face, that if it were painted by a classical painter, might be called beatific.It's very hard to describe. His voice is somehow soft and ethereal. I don't know quite how to put these things, or encapsulate them into words.“But the point is that the image that I believe Mr. Richard is trying to create, and I believe the mantle with which he is trying to cloak himself is that he is somehow a little nearer to God than most people, that he is perhaps—if not a saint, at least on his way to sainthood—and that he is a holy man of the cloth in a very special sense of that.“I think his criminal background, as demonstrated both by the offer of proof and by the indictments and by the convictions that have been shown to this court involving trafficking in narcotics, smuggling hashish oil, and being involved in [getting] that into the United States—as I remember, typewriter cases—is that what was going on? Being involved in assault, possibly involved in a murder, a kind of criminality that is shocking to an ordered society.“To allow him to wear the garb of sainthood on the witness stand without being challenged in terms of a rather shocking record, is to abuse the court's discretion in the other way, to create a false image to the jury.“․“․ We are talking about a man whose words and actions say, ‘Everything I have done has been to try to be a holy man, in a holy pursuit, moderating my life, rejecting materiality, perhaps slipping a bit with the temperate use of intoxicants', when his history makes that a patent and absurd lie, at least in the court's opinion.” (15 RT 2916–2918.)
50. The “Yanoff incident” involved an 11 year-old boy, David Yanoff, temporary custody of whom had been awarded to his father, Jerry Yanoff, in Chicago. David's mother and Jerry's former wife, Karen Wilson, was a Krishna devotee living at the Laguna Beach temple under the devotional name Krishna Stuta. During the summer of 1975, Jerry and Karen agreed that David would spend a month with Karen at the temple. At the end of the month, David did not want to return to Chicago. Karen spoke with members of the Krishna leadership including Jayatirtha and another GBC representative, Rameswara, and was told they would “take care” of the problem. (23 RT 4374.) A month later, Karen and David were sent to Europe where they lived in temples in France and Spain for over one year. (23 RT 4378–4390.) In the meantime, Jerry and his father, Morris Yanoff, wrote letters to the ISKCON leadership asking for help in locating David. They received responses from both Jayatirtha and Rameswara that the ISKCON leadership had no knowledge of David's whereabouts but that all temple presidents had been instructed to contact the Yanoffs if they obtained any information about Karen or David. (Exhs. 207, 209; 25 RT 4796–4798, 4830–4832.) Later, after the Yanoffs began picketing Krishna solicitation efforts at the Chicago airport (25 RT 4810–4812), the ISKCON leadership forced Karen and David to return to the United States and David was turned over to his father. (23 RT 4391; 25 RT 4854–4855.)Only a minimal amount of evidence was received regarding the “Johnston incident,” which concerned Pete Johnston, a 16 year-old who visited the Laguna Beach temple in 1976 and decided he wanted to become a devotee. Later, after informing the temple president that his parents would not permit him to live at the temple, he was sent to the temple in Portland, Oregon and told not to say anything about his age. (30 RT 5833–5835.) Six or seven weeks later, the Portland police discovered Johnston at the temple and returned him to his parents. (30 RT 5836.)
51. In McCorkle, the defendant city argued that the trial court erred in denying its motion to quash service of summons on it as a fictitious defendant. (Id. 70 Cal.2d at p. 256, 74 Cal.Rptr. 389, 449 P.2d 453.)
52. Defendants also assert that where a religious entity is accused of a tort not involving physical injury, the First Amendment requires that plaintiffs prove common law actual malice beyond a reasonable doubt, or at least by clear and convincing evidence, “to prevent a punitive damage verdict from being an outlet for bias and community hostility.” (Richard Opg. Brief at 40.) As we read the controlling cases, however, the United States Supreme Court has placed no such limitation on the imposition of punitive damages in state defamation actions involving private persons. In Gertz v. Robert Welch, Inc., supra, 418 U.S. 323, 94 S.Ct. 2997 the Court said that states may award punitive damages in public issue defamation actions if constitutional malice is proven by clear and convincing evidence. (Id. at pp. 342, 350, 94 S.Ct. at pp. 3008, 3012; Dun & Bradstreet v. Greenmoss Builders, supra, 472 U.S. at pp. 757–761, 105 S.Ct. at pp. 2944–2946; but see Bankers Life & Casualty Co. v. Crenshaw (1988) 486 U.S. 71, 87–88, 108 S.Ct. 1645, 1655–1656, 100 L.Ed.2d 62 (conc. opn. of O'Connor, J.).)Just as the United States Supreme Court has carefully scrutinized “ ‘the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment’ ” in formulating rules applicable to public-figure plaintiffs and media defendants in defamation actions (Philadelphia Newspapers v. Hepps, supra, 475 U.S. at p. 768, 106 S.Ct. at p. 1559, quoting Gertz v. Robert Welch, Inc., supra, 418 U.S. 323, 325, 94 S.Ct. 2997, 3000), California courts have engaged in a similar balancing process with respect to punitive damages, as observed in Maheu v. Hughes Tool Co. (9th Cir.1978) 569 F.2d 459, 479–480:“It is important to safeguard First Amendment rights; it is also important to give protection to a person who is intentionally and maliciously defamed, and to discourage that kind of defamation in the future. A balance must be struck between those two competing interests․ California has chosen to allow such recovery, and we find that the state's interest in deterring malicious defamation, for the purpose of protecting privacy and reputation, ․ is compelling.”The First Amendment right referred to in Maheu is the right to free speech, but the rationale is no less applicable where the rights of freedom of the press or free exercise of religion are involved. All three are fundamental rights, critically important to our traditions of freedom of thought and expression. They are not, however, unthinkingly absolute. In rejecting defendants' arguments, we note that our courts have not infrequently awarded punitive damages against religious entities on a proper showing of common law malice. (See, e.g., Allard v. Church of Scientology (1976) 58 Cal.App.3d 439, 452, 129 Cal.Rptr. 797, cert. denied (1977) 429 U.S. 1091, 97 S.Ct. 1101, 51 L.Ed.2d 537.)
53. For the first time in their petition for rehearing, the Georges argue we should decline to review defendants' appellate contentions regarding the lack of financial condition evidence because facts developed after trial demonstrate that defendants engaged in the fraudulent transfer of assets in an effort to minimize their wealth and frustrate attempts to collect on the judgment. (See Rude v. Rude (1957) 153 Cal.App.2d 243, 249, 314 P.2d 226 [dismissing an appeal where the “contumacious” appellant disregarded legitimate trial court orders and had been found in contempt].) If such was a legitimate basis to reject defendants' arguments, the Georges should have raised it at an earlier time rather than or in addition to arguing that Adams was not retroactive or did not control this case.In any event we are not inclined to agree with the Georges' assertions in this regard or their related contention that the defendants waived any argument by failing to adequately respond to discovery requests regarding financial condition. There was no trial court finding of which we are aware that defendants were guilty of a sanctionable failure to respond to discovery requests. Of course the trial court on remand has the power to deal with “contumacious” conduct and we encourage it to do so if the situation warrants. The Georges respond that even if there was no specific finding at the time of trial, the trial court made it clear in later receivership and alter ego proceedings that defendants were guilty of abusive tactics. Accepting this as true (see the companion appeal in George v. International Society for Krishna Consciousness, D007154), we are nonetheless unwilling to impose a Draconian appellate sanction on defendants for transgressions which can be and (at least in part) have been dealt with in other forums.
54. We also reject the Georges' secondary argument that defendants waived any objection by requesting that the punitive damage instruction be modified to delete any reference to consideration of defendants' financial condition. Obviously the request did not constitute a waiver of any objection where the judge had already ruled the punitive damage issue could go to the jury without evidence of net worth and the Georges had elected not to bifurcate the issue so that such evidence could be presented at a later date.
55. As in Adams, it becomes unnecessary in light of our holding to comment extensively on the effect of the United States Supreme Court's decision in Pacific Mut. Life Ins. Co. v. Haslip, supra, 111 S.Ct. 1032. (See Adams, supra, 54 Cal.3d at p. 119, fn. 9, 284 Cal.Rptr. 318, 813 P.2d 1348.) For the benefit of the court on retrial, however, we observe that its consideration of any motion for new trial following the award of punitive damages must take Haslip into account. In this regard we note that the Haslip court began by emphasizing Alabama law requires the trial judge “ ‘to reflect in the record the reasons for interfering with a jury verdict, or refusing to do so, on grounds of excessiveness of the damages.’ ” (111 S.Ct. at p. 1044, quoting Hammond v. City of Gadsden (Ala.1986) 493 So.2d 1374, 1379.) The Court then suggested that a trial court may consider a variety of factors in assessing the excessiveness of a punitive damage award. These factors include: (1) the culpability of the defendant's conduct, taking into account the duration of the conduct, the defendant's awareness, any concealment as well as the extent of past similar conduct; (2) the need to discourage others; (3) the impact of the award on the parties; (4) the impact on innocent third parties; (5) the relationship between the punitive award, the compensatory award; (6) the relationship between the award and the harm which has resulted or is likely to result from the defendant's conduct; (7) the profitability of the conduct; (8) defendant's “financial position”; (9) the costs of litigation; and (10) by way of mitigation, any criminal sanctions or civil awards imposed on the defendant based on the same conduct. (111 S.Ct. at pp. 1044–1046.)California cases have not previously detailed the full litany of permissive factors articulated in Haslip. To say they have not been expressed, however, is not to say most have not been considered. California law requires that in evaluating a punitive damage award, trial and appellate courts consider the nature of defendant's acts, the amount of compensatory damages awarded and the wealth of the defendant. (See, e.g., Neal v. Farmers Ins. Exchange, supra, 21 Cal.3d at p. 928, 148 Cal.Rptr. 389, 582 P.2d 980.) Many of the Haslip factors fit within the existing California framework. For instance, factors (1), (6) and (7) may all be considered in assessing “the nature of defendant's acts.” Factors (5) and (8) also track existing California considerations. Factor (3)—the impact on the parties—can only be assessed by reference to the defendants' financial condition.Several other factors, while not necessarily contemplated by the Neal formulation, are facially inapplicable to the facts of this case. Number (2), for example, would seem to have little effect in most cases including this one. Obviously it is always desirable to discourage similar malicious, oppressive or fraudulent conduct and a punitive damage award generally provides such a deterrent effect. The only case in which punitive damages would not achieve such an effect would be if there was little likelihood of similar conduct occurring in the future. Here, the trial record itself reflects past similar incidents involving some of these same defendants (see ante, fn. 50 ) and cases from other jurisdictions also indicate that events of the sort which took place here were not an isolated occurrence. (See, e.g., Murphy v. I.S.K.CON. of New England (1991) 409 Mass. 842, 571 N.E.2d 340.) Factor (9), “the costs of the litigation,” is really a consideration in establishing the minimum damage award. As the Alabama Supreme Court explained in Green Oil Co. v. Hornsby, (Ala.1989) 539 So.2d 218 when first articulating this factor, “ ‘All the costs of litigation should be included, so as to encourage plaintiffs to bring wrongdoers to trial,’ ” (Id. at pp. 223–224, quoting Aetna Life Ins. Co. v. Lavoie (Ala.1987) 505 So.2d 1050, 1062 (conc. opn. of Houston, J.).) It has no applicability in a case such as this as a basis for reducing an award. Finally, we agree a court should consider any civil penalties or criminal sanctions imposed on the defendant based on the same objectionable conduct (factor (10)). Here, however, defendants have alerted us to no duplicative penalties assessed against them based on their dealings with the Georges.The only factor seemingly applicable but not taken into account by the existing California rubric is the effect of the award on third parties (factor (4)). An otherwise appropriate award of punitive damages could be excessive where, as may be the case here, it substantially impairs the fundamental rights of innocent third parties. We agree with defendants that the trial court should consider this element in evaluating any punitive award returned by the jury on retrial.
WIENER, Associate Justice.
KREMER, P.J., and WORK, J., concur.