NALLY v. GRACE COMMUNITY CHURCH OF THE VALLEY (1984)

Plaintiffs, Walter and Maria Nally, appeal from the summary judgment in favor of defendants in this wrongful death action.   Judgment was entered based upon an order granting the respective motions of defendants, Grace Community Church of the Valley, Pastor John MacArthur, Jr., Pastor Leslie Duane Rea, Pastor Lynn Cory, and Pastor Richard Thomson, Jr., for summary judgment.

The complaint alleges that Pastor MacArthur, acting as an agent of Grace Community Church, provided spiritual and personal counseling to plaintiffs' son, Kenneth Nally, that he negligently discouraged Kenneth Nally from receiving psychiatric or psychological counseling although he was aware that Kenneth Nally had suicidal tendencies, and that Kenneth Nally committed suicide because he did not receive essential psychiatric or psychological care and treatment.   The complaint also contains a cause of action for intentional infliction of emotional distress (captioned “Outrageous Conduct”) in which it is alleged that each of the individual defendants, acting as an agent of the church, exacerbated Kenneth Nally's preexisting feelings of guilt, anxiety, and depression, knowing that Kenneth Nally had suicidal tendencies and that this conduct would increase the likelihood that Kenneth Nally would take his own life.   It is further alleged that these acts were done “with reckless disregard of the health, safety and well being of Kenneth Nally” and that, as a result of this conduct, Kenneth Nally's depression increased, causing him to commit suicide.   The complaint further alleges that Pastor MacArthur and Grace Community Church negligently failed to require adequate training for their counselors.

 Pastor MacArthur's motion for summary judgment was based on excerpts from deposition transcripts and numerous declarations, each of which stated that the matters set forth were declared to be true to the best of the declarant's knowledge.   Pastor MacArthur admitted in his declaration that he provided spiritual and psychological counseling to Kenneth Nally after a suicide attempt made by Kenneth Nally in March 1979.   The excerpts of deposition transcripts included evidence indicating that Kenneth Nally was seen by a psychiatrist and various other physicians and that the church has referred its members to psychiatrists.   The excerpts of deposition transcripts and the declarations did not indicate whether Pastor MacArthur engaged in extreme and outrageous conduct, either intentionally or recklessly, or whether his counseling was a substantial factor in the causation of Kenneth Nally's suicide.   The evidence upon which Pastor MacArthur's motion for summary judgment was based therefore failed to establish the lack of a triable issue of fact as to plaintiffs' cause of action for wrongful death occurring as a result of intentional infliction of emotional distress.

In opposition to Pastor MacArthur's motion for summary judgment, plaintiffs introduced a declaration of Walter Nally in which it was stated that on March 31, 1979 (one or two days before the suicide), Kenneth Nally pointed to his arm, which he had injured in a recent suicide attempt, and said that “ ‘they [people at the church] told [him] that this was God's punishment.’ ”   On the Tuesday following Kenneth Nally's death, Pastor Rea told Walter Nally that this was not the first suicide of someone involved in the church and informed him that Kenneth Nally had been extensively counseled at the church by Pastor MacArthur.   Plaintiffs also introduced a declaration of a psychiatrist who, having reviewed the testimony elicited in various depositions taken in this litigation, stated that it was his opinion that Kenneth Nally suffered from severe mental illness prior to his death and that defendants increased Kenneth Nally's despair and anguish, thereby causing him to commit suicide.   Plaintiffs also introduced a deposition transcript excerpt in which Pastor MacArthur testified that “perhaps” he contributed to Kenneth Nally's depression.   Pastor MacArthur admitted in his declaration which was introduced in support of the motion that, at the time he counseled Kenneth Nally, he was aware of Kenneth Nally's suicidal tendencies.

Grace Community Church, Pastor Rea, Pastor Thomson, and Pastor Cory filed a separate motion for summary judgment.   They relied on the same declarations and deposition transcript excerpts that were introduced in support of Pastor MacArthur's motion.   Pastor Cory's declaration admitted that Pastor Cory provided informal counseling to Kenneth Nally.   Pastor Rea's declaration admitted that Pastor Rea provided counseling to Kenneth Nally for a period of over one year and that during these counseling sessions Kenneth Nally alluded to an “inability to cope.”   Pastor Thomson's declaration admitted that, during some of the sessions in which he counseled Kenneth Nally, he was aware that Kenneth Nally had tried to commit suicide.   His declaration further admitted that he taught courses in counseling at a bible institute affiliated with Grace Community Church.   The declarations and excerpts of deposition transcripts did not indicate whether Pastor Rea, Pastor Cory, or Pastor Thomson, as agents of the church or independently, engaged in extreme and outrageous conduct, either intentionally or recklessly, or whether their counseling of Kenneth Nally was a substantial factor in the causation of his suicide.   The evidence adduced in support of their motion therefore failed to establish the lack of a triable issue of fact as to plaintiffs' cause of action for wrongful death based on a theory of intentional infliction of emotional distress.

In opposition to the motion of Pastor Rea, Pastor Thomson, Pastor Cory, and Grace Community Church, plaintiffs introduced evidence that a tape by Pastor Thomson for a collection entitled “Principles of Biblical Counseling” contained the following statement:  “ ‘And the suicidal says, “I am under such tremendous pressure, now I've got to have to [sic ] pleasure of release!   Now!, I don't care about the future.”   That's characteristic of human nature.   So it is very characteristic of the suicidal that it is his fear of judgment that drives him into the death after which he will face that judgment, if he's an unbeliever.   And after which if he is a believer, he'll go to be with the Lord.   Yes, there'll be a loss of reward, but because of the Lord and his grace he'll go to be with the Lord.   In fact, suicide is one of the ways that the Lord takes home a disobedient believer.   We read that in the Bible.   That death is one of the ways that the Lord deals with us.   In the First Corinthians Eleven, verse 30 it says, “For this reason because you are not judging sin in your own life, many among you are weak and sick” and what, “a number sleep!”   What's that mean?   They've gone to bed?   They've gone to bed for the night!   What's that mean?   Sleep?  They're dead!   That's right.   And suicide for a believer is the Lord saying, “Okay, come on home.   Can't use you anymore on earth.   If you're not going to deal with those things in your life, come on home.” ’ ”   Depositions relied upon by defendants indicated that Pastors MacArthur, Rea, and Cory used counseling techniques similar to those used by Pastor Thomson and that each of the individual defendants was aware of Kenneth Nally's depression and his suicidal tendencies.

Plaintiffs also introduced evidence that, after Kenneth Nally's hospitalization in March 1979, Walter Nally opened Pastor Cory's office door during one of Pastor Cory's counseling sessions with Kenneth Nally and found Kenneth Nally on his knees and crying.¹  Pastor MacArthur specifically testified that spiritual counseling such as he admitted giving to Kenneth Nally causes “the deepest depression.”   From this evidence, a reasonable inference could be drawn that Grace Community Church and each of the individual defendants either followed a policy of counseling suicidal persons that, if one was unable to overcome one's sins, suicide was an acceptable and even a desirable alternative to living or recklessly caused such persons extreme emotional distress through their counseling methods if those persons did not measure up to the pastors' religious ideals.

 The summary judgment procedure is a drastic one, and doubts as to the propriety of granting a motion for summary judgment are to be resolved against the moving party.  (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)   A defendant moving for summary judgment has the burden of showing that there is no triable issue of fact under any cause of action of the complaint.  (Ibid.;  Tresemer v. Barke (1978) 86 Cal.App.3d 656, 666, 150 Cal.Rptr. 384.)   In California, a wrongful death action may be based on a theory that intentional infliction of emotional distress was a substantial factor in bringing about the suicide of the decedent.  (Tate v. Canonica (1960) 180 Cal.App.2d 898, 909, 5 Cal.Rptr. 28.)   In Tate v. Canonica, supra, 180 Cal.App.2d 898, 908–909, 5 Cal.Rptr. 28, the court held that, if the defendant intended to cause serious emotional distress, the fact that the decedent knew what he was doing when he committed suicide would not relieve the defendant of liability for wrongful death.   The court stated that this rule would not apply, however, where the act of the defendant was intentionally done, but where there was no intent to cause injury.  (Id., at p. 909, 5 Cal.Rptr. 28.)   Since reckless disregard of the probability of causing emotional distress was not alleged, the court was not confronted with the question whether such an allegation would sufficiently plead the element of intent.

 In Agarwal v. Johnson (1979) 25 Cal.3d 932, 160 Cal.Rptr. 141, 603 P.2d 58 the Supreme Court held that the element of intent in a cause of action for intentional infliction of emotional distress is established by proof that the defendant acted with reckless disregard of the probability of causing emotional distress.  (Id., at p. 469, 160 Cal.Rptr. 141, 603 P.2d 58.)   The court there held that a prima facie case of intentional infliction of emotional distress has the following elements:  “ ‘(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress.  [Citations.]”  (Ibid., italics supplied.)   We hold that a cause of action for wrongful death arising out of intentional infliction of emotional distress was adequately pled by the allegations that the individual defendants, as agents of the church, knowing that Kenneth Nally was depressive and had suicidal tendencies, exacerbated his feelings of guilt, anxiety, and depression with reckless disregard that their conduct would increase the likelihood that Kenneth Nally would commit suicide and that, as a result of this conduct, Kenneth Nally's depression increased, causing him to commit suicide.  (See ibid.;  Tate v. Canonica, supra, 180 Cal.App.2d 898, 908–909, 5 Cal.Rptr. 28;  cf. Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 287, 186 Cal.Rptr. 184, mod., 136 Cal.App.3d 1063c.)

The defendants' motions failed to establish that there was no triable issue of fact with respect to the count alleging that the suicide was caused by intentional infliction of emotional distress.   Our Legislature has indicated its concern with the danger inherent in encouragement of suicide by the enactment of Penal Code section 401, which provides, “Every person who deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony.”   The depositions relied upon by defendants and the evidence adduced in opposition to the motion of Grace Community Church, Pastor Thomson, Pastor Rea, and Pastor Cory indicate that a trier of fact might well find that defendants engaged in extreme or outrageous conduct by deliberately encouraging Kenneth Nally to commit suicide or by either deliberately or recklessly increasing his intense feelings of guilt with full knowledge of his past attempts at suicide.  (Cf. Kelly v. General Telephone Co., supra, 136 Cal.App.3d 278, 287, 186 Cal.Rptr. 184.)

 We are thus confronted with the question whether a clergyman or church should be immune from liability for intentional infliction of emotional distress caused by the nature or content of counseling simply because the counseling may have a spiritual aspect.   The free exercise clause of the First Amendment to the United States Constitution “embraces two concepts,—freedom to believe and freedom to act.   The first is absolute but, in the nature of things, the second cannot be.”  (Cantwell v. Connecticut (1940) 310 U.S. 296, 303–304, 60 S.Ct. 900, 903, 84 L.Ed. 1213.)   Counseling falls within the latter category.

In determining whether an action for intentional infliction of emotional distress may be maintained for counseling by a clergyman, we are guided by the analyses contained in In re Edward C. (1981) 126 Cal.App.3d 193, 178 Cal.Rptr. 694 and Nelson v. Dodge (1949) 76 R.I. 1, 68 A.2d 51.   In Edward C. the court affirmed an order removing children from the custody and control of their parents because the parents' religiously motivated discipline of the children was physically and emotionally detrimental to them.   In addressing the parents' argument that the order involved an unconstitutional impairment of the parents' right to the free exercise of religion, the court stated, “Appellants further contend that the First Amendment to the United States Constitution, protecting freedom of religion, severely limits the power of the state to interfere with the parental right to direct the upbringing of their children.   They correctly argue that the state must show that the parent's religious choices do jeopardize the health or safety of the child and that the state cannot override parental choice just because it runs counter to the tastes or lifestyles of the majority.  [¶] Mistreatment of a child, however, is not privileged because it is imposed in the guise of freedom of religious expression.  [Citation.]  ․ [¶] The evidence overwhelmingly supports the finding that appellants' home was an unfit place for Marlee ․  The severe, repeated beating of Marlee for such childhood infractions as ․ inability to remember a Sunday school lesson amply demonstrate[s] the father's pitiless and unreasonable approach to discipline.   The court could reasonably infer that the father, with Marlee removed, would substitute either one or both of the boys as an object of his ruthless drive for religious perfection ․  [Citations.]”  (In re Edward C., supra, 126 Cal.App.3d 193, 202–203, 178 Cal.Rptr. 694, original italics.)

In Nelson the leader of a church repeatedly threatened the plaintiff that he would suffer eternal damnation.   The threats were sometimes accompanied by angry cries and howling and by the church leader throwing herself on the floor and simulating vomiting.   The defendant ultimately caused the plaintiff to become physically and emotionally ill and to ask if there was any hope for him.   The defendant answered that God wanted the plaintiff to strip himself of all his possessions and donate them to her.   The court imposed a constructive trust on those possessions because of the defendant's undue influence.  (Cf. O'Moore v. Driscoll (1933) 135 Cal.App. 770, 28 P.2d 438 [cause of action may be maintained against priest for false imprisonment that was religiously motivated];  United States v. Spears (5th Cir.1971) 443 F.2d 895, cert. den., 404 U.S. 1020, 92 S.Ct. 693, 30 L.Ed.2d 669 [use of drugs in religious ceremonies is not protected by free exercise clause of First Amendment].)

Although Nelson and Edward C. were not tort actions for intentional infliction of emotional distress, both cases affirm the principle that remedies should exist for harm caused by extreme and outrageous conduct even when such conduct involves the expression of religious beliefs.

Other jurisdictions have recognized that tort liability may be established for intentional infliction of emotional distress caused by a clergyman or religious institution.   In Lewis v. The Holy Spirit Ass'n, etc. (D.Mass.1983) 589 F.Supp. 10, the court stated that a cause of action may be alleged against a religious organization and its leader for intentional infliction of emotional distress but held that allegations that the defendants negligently brainwashed the plaintiff were insufficient.   In Christofferson v. Church of Scientology, etc. (1982) 57 Or.App. 203, 644 P.2d 577, cert. den. (1983) 459 U.S. 1206, 103 S.Ct. 1196, 75 L.Ed.2d 439 and 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468, the Oregon Court of Appeals held that a cause of action may be stated against a religious organization for intentional infliction of emotional distress but determined that insufficient evidence had been introduced to establish that plaintiff suffered severe emotional distress as a result of the defendants' conduct.   We are in agreement with the principle recognized by these cases and by Nelson and Edward C.

 We hold that, while defendants' religious beliefs are absolutely protected by the First Amendment, the free exercise clause of the First Amendment does not license intentional infliction of emotional distress in the name of religion and cannot shield defendants from liability for wrongful death for a suicide caused by such conduct.

Because we have concluded that triable issues of fact remain as to whether Kenneth Nally's suicide was caused by intentional infliction of emotional distress, we need not also decide whether Pastor MacArthur had a duty to refer Kenneth Nally to a psychiatrist or other mental health professional or whether Pastor MacArthur or the church had a duty to adequately train the pastors in methods of psychological counseling.  (See Stationers Corp. v. Dun & Bradstreet, Inc., supra, 62 Cal.2d at p. 417, 42 Cal.Rptr. 449, 398 P.2d 785;  Tresemer v. Barke, supra, 86 Cal.App.3d at p. 666, 150 Cal.Rptr. 384.)

The judgment is reversed.

I respectfully dissent.   I would affirm the summary judgment.   My reasoning follows:

PROCEDURAL HISTORY

On March 31, 1980, plaintiffs Walter J. Nally and Maria Nally, through their counsel, filed in the superior court of Los Angeles a three count unverified complaint entitled “COMPLAINT FOR CLERGYMAN MALPRACTICE;  WRONGFUL DEATH;  NEGLIGENCE;  OUTRAGEOUS CONDUCT” naming GRACE COMMUNITY CHURCH OF THE VALLEY, A NON–PROFIT CORPORATION (hereinafter Grace Church);  JOHN MacARTHUR AND DOES I–L as party defendants.

In count I, designated “CLERGYMAN MALPRACTICE,” plaintiffs in substance alleged that they were the father and mother and sole surviving heirs at law of the decedent Kenneth Mark Nally;  that Kenneth Nally on April 2, 1979, committed suicide by self-inflicted shotgun wounds to the head in premises owned, operated and controlled by the defendants;  that for many years and at the time of his death, Kenneth Nally was a member of the congregation of defendant Grace Church and John MacArthur was the pastor-teacher for Grace Church and the clergyman and minister for the congregation including Kenneth Nally;  that in the role and relationship of clergyman, John MacArthur provided spiritual and personal guidance and counseling to Kenneth Nally and obtained the confidence of, and exercised influence and control over Kenneth Nally;  that on or about March 12, 1979, Kenneth Nally took an overdose of the drug Elavil and received emergency treatment and was confined to intensive care at Verdugo Hills Hospital until his discharge on March 17, 1979;  that Kenneth Nally was diagnosed at that time as having a “depressive neurosis” and his treating and examining physicians and psychiatrists recommended that he receive outpatient psychiatric follow-up care;  that John MacArthur visited Kenneth Nally during his hospitalization and was made aware of his physical and psychiatric condition and was otherwise aware of the depressive state and suicidal tendencies of Kenneth Nally from having functioned as his clergyman and having provided him spiritual and personal guidance and counseling;  that following Kenneth Nally's release from the hospital, defendant John MacArthur took him into his home and while in a position of control and influence over Kenneth Nally, actively dissuaded and discouraged him from seeking or receiving professional psychiatric or psychological care and counseling;  that in the role of clergyman to Kenneth Nally, counseled him to consult with lay counselors on the staff of Grace Church, engage in prayer, read scriptures, and listen to tape recordings of sermons made by defendant John MacArthur;  that notwithstanding the foregoing directions given to Kenneth Nally, defendant John MacArthur failed to make himself and lay counselors on the staff of the church available for counsel and guidance at such times as requested;  and that by virtue of such acts and omissions alleged, that defendant John MacArthur was negligent in failing to exercise the standard of care for a clergyman of his sect and training in the community which proximately resulted in Kenneth Nally committing suicide on April 2, 1979.

In count II, entitled “NEGLIGENCE,” plaintiffs incorporated by reference all of the allegations set forth under count I (above) and further alleged that Grace Church and John MacArthur were aware that lay counselors would provide psychological counseling to persons who had emotional, mental and psychological disorders which required a high level of skill and training and were negligent in not requiring the proper level of psychological training and background on the part of lay counselors;  that the defendants performed in the role and relationship of lay spiritual and psychological counselors to Kenneth Nally, gaining the confidence and trust of Kenneth Nally and exercised influence and control over him;  and that they were aware that Kenneth Nally was depressive, neurotic with suicidal tendencies and, “notwithstanding their knowledge thereof, actively and affirmatively dissuaded him from seeking professional psychological and/or psychiatric care for the aforementioned disorders.”

In count III, entitled “OUTRAGEOUS CONDUCT,” plaintiffs incorporated by reference the allegations in counts I and II haec verba and additionally alleged that the defendants were aware that Kenneth Nally was depressive, neurotic and had suicidal tendencies and that if he did not seek and receive professional psychiatric and/or psychological counseling and treatment that there was a strong likelihood and probability that he would commit suicide;  that the defendants were aware “that Kenneth Nally came from a family background of Catholic religious training and that he had had respect for his parents and their adherence and belief in the Catholic faith”;  that the defendants “ridiculed, disparaged, and denigrated the Catholic religion and faith and belief of plaintiffs herein” and “specifically indoctrinated Kenneth Nally that members of the Catholic faith were not christians and would not go to heaven upon their death”;  that defendants “inculcated in Kenneth Nally the belief that he had betrayed Christ's love and trust, and otherwise exacerbated Kenneth Nally's preexisting feeling of guilt, anxiety and depression”;  that by virtue of defendants undue influence and control over Kenneth Nally, effectively required him to spend time in isolation, prevented him from contacting or consulting with persons not affiliated with Grace Church and “yet did not make themselves available to Kenneth Nally when requested by him”;  and that the foregoing “were done with reckless disregard of the health, safety and well being of Kenneth Nally and constituted outrageous conduct” proximately causing Kenneth Nally to become “so further guilt ridden, depressed and anxious that he was driven to take his own life.”

On May 30, 1980, defendants filed a demurrer to plaintiffs' complaint along with points and authorities in support thereof and plaintiffs filed points and authorities in opposition to defendants' demurrer.

On June 13, 1980, defendants' demurrer was vigorously orally argued by both sides in the superior court before the Honorable Thomas C. Murphy, Judge Presiding.   The demurrer was overruled and defendants given 30 days to answer.   The court stated, “․ by doing that, I am not determining who is right or who is wrong.   We will take that down the long course.”

On July 25, 1980, defendant Grace Church filed its answer to complaint and on May 6, 1981, answer to complaint was filed on behalf of Duane Rea, Richard Thompson, and Lynn Corey, sued and served as DOES I through III, respectively.

The answer consisted of a general denial and eight affirmative defenses, namely:  FIRST, failure to state a cause of action;  SECOND, violation of religious liberty guaranteed by the First Amendment of the United States Constitution;  THIRD, violation of the establishment clause in the First Amendment to the Federal Constitution;  FOURTH, violation of the guarantees of religious liberty in article 1, § IV of the California Constitution;  FIFTH, that the resulting injuries or damages, if any, were proximately caused and contributed to by the negligence of plaintiffs and decedent Kenneth Nally by not exercising ordinary care on their own behalf;  SIXTH, barred by the statute of limitations as set forth in California Code of Civil Procedure, section 340;  SEVENTH, violation of the guaranty of freedom of speech as provided in the First Amendment to the Federal Constitution;  EIGHTH, violation of the guaranty of freedom of speech as provided in the First Amendment to the United States Constitution.

On July 2, 1981, defendant John MacArthur filed “NOTICE OF MOTION FOR SUMMARY JUDGMENT;  AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF” to be heard on July 17, 1981, before Judge Murphy.

On July 17, 1981, plaintiffs filed their points and authorities in opposition to the motion for summary judgment;  and in the alternative request for continuance.   The reporter's transcript of July 17, 1981, shows that defense counsel advised the court that a similar motion would be made on behalf of all the other defendants.   The court continued the matter to October 2, 1981, and advised counsel to “Have your discovery completed within 40 days from today ․  We're going to rule on the merits at that time.   If you cannot support your allegations, then I'm going to grant the motion.   If there's any triable issue, no matter how slim, then we will try it on that one issue and have partial summary judgment as to others.   Define it and set it forth.   O'Kay [sic ]?   If you want to make a motion for partial summary judgment on some of the issues and you can sustain it on the merits, fine.   Let's wrap this thing up once and for all.   If we're going to trial on a single issue, let's do it.”

On October 2, 1981, the hearing on defendants' motion for summary judgment was conducted.   At the outset the court stated:  “Gentlemen, I have read and considered your memorandums of points and authorities, also the opposition that has been filed, for the summary judgment.   I'm aware of the other defendants who have now joined.   I continued this, I think, about 90 days to give you an opportunity to do the discovery that you felt would be necessary to come up with, perhaps, facts that would offset their position that there's no triable issue.   I'm now ready to listen.   Go ahead.”

Following extensive oral argument by counsel, the court granted summary judgment as to all defendants and made the following comments from the bench:

“Anything further?   Does it stand submitted?  [¶] Let me say something to you gentlemen, and those people in the audience who may or may not have an interest.  [¶] I guess when we're quoting different people, I should go to one of my favorites, Harry Truman, who said, ‘Gentlemen, need I remind you that the buck stops here.’   You are entitled to your opinions.   You are entitled to your adversary positions.   I must determine what goes forward, as a matter of law.  [¶] If anybody is aggrieved at the fact that this court allowed this case to start 18 months ago, that is too bad.   Under the law, if people allege certain things, this court has to look on it to see if a cause of action has been stated.   At that particular time, there was no doubt that, on the basis of the allegations, the raw allegations, there was nothing this court could do to end it at that particular time.  [¶] ․  [¶] Now, I am just as religious, or maybe anti-religious, take your choice, as any person in this room.   Religion has nothing to do with this particular case, as I see it.  [¶] I gave everyone an opportunity to state their position.   I brought counsel back from Washington because I felt that the Nallys had an absolute right to go in and discover any and all facts that they might want to discover by virtue of the laws of California and the rules of discovery.   Apparently you have been very active, and apparently, as lawyers, you have done your job.   You have furnished this court with reams of affidavits and reams of facts and positions.   I have to sort them down.  [¶] I have spent considerable time on it.   I have listened patiently to you today.   It is a tragedy, but there is a limit to what a court can or can't do.   There is no one that I know of that can extend their hands, although I have heard some claims that hands can be extended and they at least heal the sick, but nobody, and I'm not being factitious [sic ], can raise the dead in this room.   Ken is gone.   There is nothing we can do about bringing him back.   The best the court can do, and I have done it, is give those who have a grievance, under the law and fitting it within the facts, a chance to come forward and state that, period․  [¶] I have to say, counsel, that I have given you every opportunity.   I have gone up one side and I have gone down the other.   I have listened to your argument.   You say in this declaration and in that declaration is this, that and the other thing.  [¶] I see, and I so find, no triable issue of fact in this case at this particular time․  [¶] As far as this trial court is concerned, the matter is closed.   I commend all attorneys on their preparation, including you, counsel, and your partner.   By no means do I ever want to hear of any lawyer not coming into this court on a novel approach if he thinks his clients have a right that has been abrogated.  [¶] That's no criticism of you, counsel, but I think your clients have—not equity, because I'm not here to do equity in this matter.   This is a question of law.   Equity on a usurpation, corporate usurpation, that falls within equity, and I must do it, but there's no need for equity here.   You got justice.   Grace Church got justice.   Mr. MacArthur got justice.  [¶] We are all accountable under the law.   Even the President of the United States found that out sometime ago, and I'll make no further reference to it, but no one is above the law.   Judges are responsible.   Lawyers are responsible.   If a complaint is made and it's properly alleged, they have an opportunity to come in and be heard, which they were.  [¶] Mr. Nally probably feels that justice was not reached.   That's too bad, Mr. Nally.   As I said to them, I'm not here to do their laundry.   I'm certainly not here to do yours.   I feel much aggrieved about that boy, but that's the ruling.”

ISSUES

On appeal, plaintiffs contend that there are “inherent triable issues of fact supporting the plaintiffs' position that the defendants had a duty to the decedent which they breached and which proximately caused his death” and the trial court abused its discretion by granting summary judgment.   Plaintiffs further contend that there are no constitutional guarantees of religious freedom to preclude the courts from providing a forum for parents to seek civil damages from a church and its pastors for a son's death resulting from the nature and quality of counseling given to the decedent, Kenneth Nally.

Respondents/defendants, in their brief, characterize the causes of action in plaintiffs' complaint as consisting of three theories as a basis for recovery, namely:  1) a “prevention theory,” i.e., that their son Kenneth Nally was prevented by defendants from seeking professional help not affiliated with Grace Church;  2) a “duty to warn theory,” i.e., that defendants breached some duty by not informing plaintiff parents and others of the things Kenneth Nally told them about himself and his feelings;  and 3) a “quality of counseling theory,” i.e., that the courts should serve as official pastoral counseling review boards examining the content and competence of spiritual counselors.

Respondents argue that neither law nor facts support any of plaintiffs' theories.

DISCUSSION

“The purpose of the summary judgment procedure is not to try the issues, but merely to determine whether there are issues to be tried.”  (Witkin, Cal.Procedure, (2d ed. 1971) Proceedings Without Trial, § 191, p. 2840.)   In short, “issue finding rather than issue determination is the pivot upon which the summary judgment law turns.”  (Walsh v. Walsh (1941) 18 Cal.2d 439, 441, 116 P.2d 62.)

“ ‘ “Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue.   The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.   In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.   Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.” ’  (Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851–852 [94 Cal.Rptr. 785, 484 P.2d 953], quoting from Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785].)”  [¶] “ ‘ “In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the admissible evidence set forth in the papers and all inferences reasonably deducible from such evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.”  (Italics added.)  (Code Civ.Proc., § 437c.)  [¶] “The remedy is designed to terminate an action promptly where the purported cause of action or defense is sham or otherwise wholly unfounded.   But it is futile to seek the order where any basis for a cause of action or defense can be shown.   In other words, the moving party should not confuse an opponent's weak case with no case at all.   The [appellate] court, construing the moving party's affidavits strictly ․ and the counteraffidavits liberally ․, will reverse the summary judgment if any kind of case is shown.”  (4 Witkin, Cal.Procedure (2d ed. 1971) Proceedings Without Trial, § 199, p. 2844.)’  (Bowden v. Robinson (1977) 67 Cal.App.3d 705, p. 719 [136 Cal.Rptr. 871] ).”  (Emphasis in original;  Fosgate v. Gonzales (1980) 107 Cal.App.3d 951, 954–955, 166 Cal.Rptr. 233.)

Applying the above rules to the pertinent part of the affidavits and depositions in light of the unverified complaint on file in the case at bench, the following appears:

Defendant John MacArthur's moving papers (applicable to all defendants), included the legal grounds previously set forth in the demurrer by Grace Church and John MacArthur on May 31, 1980, as well as eighteen (18) separate declarations and the deposition transcripts of both plaintiffs, Walter Nally and Maria Nally.

The following word picture can be gleaned from the voluminous record and the declarations and depositions filed by defendants in support of their motion for summary judgment.

In 1973, while attending the University of California at Los Angeles, Kenneth Nally (hereinafter Kenneth) became depressed after breaking up with his girlfriend.   According to Robert Azzarito's declaration, while at UCLA, Kenneth often talked about the ridiculousness of life, and occasionally mentioned thoughts of committing suicide.   These discussions often centered around the problems Kenneth was having with his relationships with women and his family.   Kenneth decided to convert from catholicism to protestantism.   He began attending Grace Community Church soon thereafter.   Kenneth's conversion became a source of tension between him and his family, especially his father, Walter Nally.

In 1975, Kenneth was seeing a psychologist at Shepherd's House due to problems he was having with a girlfriend.

After graduation from UCLA, Kenneth attended Logos Bible Institute at Grace Community Church from September 1976 to June 1977.   He began dating a fellow student, Kathryn Thayer, in the summer of 1977.   This relationship was unstable.   According to Kathryn Thayer's declaration, Kenneth asked her how she felt about him seeking psychiatric help.   She told him he should seek such help if he felt it would benefit him.

In January 1978, Kenneth approached Grace Community Church's pastor, Leslie Rea, and requested “discipleship” time.   The two men met on an irregular basis for the next six months.   According to his declaration, Pastor Rea concluded that Kenneth would not follow the advice given him and would always discuss the same basic problems, i.e., his relationships with his girlfriend and father.

Kenneth became further depressed after he and Kathryn Thayer broke up on December 10, 1978.

In February 1979, Kenneth told his mother, Maria Nally, that he could not cope.   She arranged for Kenneth to see Dr. Julius Milestone who prescribed Elavil, an anti-depressant.

During the first week of March 1979, Maria Nally arranged for Kenneth to see Dr. Mary Oda.   Dr. Oda recommended that Kenneth undergo a series of blood tests and chemical analyses.

On the afternoon of March 11, 1979, Kenneth spoke with a classmate, Jeffrey Zippi, concerning his frustration with his life.   Jeffrey Zippi encouraged Kenneth to seek professional counseling including psychological help.   Kenneth indicated that he had seen a psychologist in the past and that counseling did not work because the counselor wanted to discuss his past.   Upon being told that no one would be able to help him until he wanted help, Kenneth stated that the problem was that he probably really did not want help.   That evening, Kenneth attempted to kill himself.   His parents discovered him the following day and had him rushed to Verdugo Hills Hospital.   He was admitted in a comatose state.   Dr. Christine Evelyn told Kenneth's parents that Kenneth was still suicidal and that she would not authorize his release unless Kenneth saw a psychiatrist.   According to Dr. Evelyn's declaration, Kenneth and his family were very concerned over what people would think about Kenneth's suicide attempt.   They asked her to tell people that Kenneth was being treated for pneumonia.

Pastor Lynn Cory visited Kenneth in the hospital and encouraged him to cooperate with the psychiatrists at the hospital.   Kenneth was similarly encouraged by Pastor Rea.   According to Pastor Rea's declaration, Kenneth stated that he would attempt suicide again if given the chance.

On March 16, 1979, psychiatrist David Hall met with Kenneth and his father, Walter Nally.   Dr. Hall discussed psychiatric hospitalization with them but they were resistant to the idea.   Due to their resistance, Dr. Hall decided to use out-patient therapy.   The first visit was scheduled for March 23, 1979.

On March 17, 1979, Kenneth was released from the hospital.   Due to tensions at the Nally home, it was agreed that Kenneth would stay at Pastor John MacArthur's home for a few days.   During his stay with the MacArthurs, Kenneth was encouraged to follow through with his out-patient therapy appointment.   According to her declaration, Kathryn Thayer encouraged Kenneth to keep his appointments with the doctor and psychiatrist at Verdugo Hills Hospital but Kenneth did not want to seek their help because they were not christians.

According to Patricia MacArthur's declaration, Kenneth indicated to her that he “may attempt suicide again” to which she responded that suicide was wrong and that “our lifespan was solely up to God.”

During the week of March 19, 1979, Pastor Richard Thomson arranged for Kenneth to have a complete physical examination by Dr. Alban Bullock.

On March 23, 1979, the MacArthurs arranged for Kenneth to be examined by Dr. John Parker.   Dr. Parker recommended immediate psychiatric hospitalization.   Kenneth rejected this recommendation.   According to Dr. Parker, he telephoned Walter Nally urging him to obtain psychiatric care for Kenneth immediately even if Kenneth objected.   Dr. Parker stated that Walter Nally indicated he would call Dr. Hall to make the necessary arrangements.  (Walter Nally denied ever receiving this recommendation).

According to Patricia MacArthur, she telephoned Walter Nally and urged him to force Kenneth to undergo psychiatric hospitalization.  (Walter Nally denied receiving this phone call).

Kenneth Nally did not keep his scheduled appointment with Dr. Hall on March 23, 1979.   Walter Nally telephoned Dr. Hall that evening and they discussed psychiatric hospitalization.   Dr. Hall offered to send an ambulance to pick up Kenneth but Walter Nally was reluctant to have his son taken against his will.   Maria Nally was opposed to placing Kenneth in a “crazy hospital.”   (Uncontradicted.)

On March 26, 1979, Dr. Evelyn urged Kenneth to seek psychiatric care.   (Uncontradicted.)

On March 27, 1979, Kenneth saw Dr. Alban Bullock.   Dr. Bullock suggested that Kenneth undergo tests at Holy Cross Hospital to determine if there were any physical causes for his depression.  (Uncontradicted.)

On March 28, 1979, Kenneth met with Dr. Richard Mohline.   Dr. Mohline referred Kenneth to the Fullerton Psychological Clinic.  (Uncontradicted.)

On March 29, 1979, Kenneth saw Charles Raup, a state-registered psychological assistant at the Fullerton Psychological Clinic.

On March 31, 1979, according to Walter Nally's deposition, Kenneth's brother made a comment to Kenneth which hurt Kenneth's feelings.   Walter Nally tried to talk to Kenneth and show him the love he had for him, but Kenneth refused to listen stating, “No, I don't want to listen.   Nobody loves me.”   It was then that Walter Nally realized that Kenneth was in need of commitment.   Walter Nally told his wife he needed to take a walk, and did so.   Maria Nally sent Kenneth to retrieve his father.   Kenneth drove down the street in his car, stopped briefly by his father.   Walter Nally told his son “wait a minute, wait a minute.   Where are you going?   Why don't you come away with me?   We can go together.”   Kenneth drove off.  (Uncontradicted.)

On April 1, 1979, Kenneth entered a friend's apartment and committed suicide.  (Contrary to the allegations in plaintiffs' unverified complaint, it is uncontradicted that Grace Church never owned, operated or controlled the property where Kenneth committed suicide).

In late May 1979, Kathryn Thayer visited the Nallys.   In a conversation with Mr. Nally, concerning Grace Church, Walter Nally told Kathryn Thayer that, “They wanted me to put my son in a mental hospital and I just couldn't do that.   It would have killed Kenneth and I just couldn't do that to my son.”   Mr. Nally emphasized this point to Kathryn.  (Uncontradicted.)

The papers filed by plaintiffs in opposition to the defendants' motion for summary judgment consisted of their points and authorities in opposition to defendants' demurrer including declarations filed therewith (of which there were none), in addition to the further declarations of plaintiff Walter Nally, Stephen Wilson, M.D., and plaintiffs' attorney of record, Edward Barker.   I will refer only to the portions of these declarations that adds or modifies something that was stated in the declarations filed in support of the defendants' motion for summary judgment.

In his declaration, Walter Nally stated that in 1974 he became aware that Kenneth was actively involved with Grace Community Church.   Thereafter Kenneth began to proselytize his newfound religion in their home and make anti-Catholic statements.

While Kenneth was at Verdugo Hills Hospital, Walter Nally heard Rod Anderson tell Pastor MacArthur that Kenneth would not be released until he had seen a psychiatrist.   Pastor MacArthur replied, “[N]o, no.   All they do is fill you up with pills and scramble your brain.   I will take him.   I will take him for a few days to my house.”

On the evening of Thursday, March 29, 1979, Walter Nally drove with Kenneth for an appointment he had with Mr. Raup of the Fullerton Psychological Clinic.   On their drive back, Walter Nally asked Kenneth what he thought of the psychologist and Kenneth told Walter Nally that Mr. Raup was not a good Christian and would not be able to help him.

Describing the last time he saw Kenneth alive, Walter Nally stated in his declaration:  “On Saturday morning, March 31, 1979, I was told by my wife that my younger son had made some remark to Ken about the condition of his arm and Ken appeared to me to be upset about that.   I had a conversation with him in the bedroom and he seemed angry and upset.   I told him I was sure that his brother did not mean to hurt him when he made the statement about the arm.   Ken appeared agitated and stated that nobody loved him.  [¶] Thereafter I went for a walk to consider the situation and then observed Ken in his car driving down the street.   I stopped him and asked where he was going.   After suggesting that he and I go on a trip together he stated that he was going to church and started to drive off.   I asked why and he pointed to his arm and said ‘they told me that this was God's punishment.’  [¶] I ran after him asking in essence who had said that but he continued to drive away and that was the last I saw of him.”

In his declaration, Walter Nally further stated that he “was present when Katie Thayer testified at her deposition that on the Friday evening she was with Kenneth that he had told her that he intended to commit suicide by way of a shotgun.   I was never advised by Katie Thayer prior to my son's death of that fact.   She did testify that that week-end [sic ] she had told Lynn Cory about her conversation with Ken, but no one else.  [¶] On the Tuesday following my son's death, I met with Duane Rea in his office accompanied by my son Wally.   He told me that he had just gotten out of a board of elders meeting which discussed the problem of Kenneth Nally.   He told me that this was not the first time that this had happened, that there had been other suicides and that there were demonic influences surrounding the church.”

On April 2, 1979, Lynn Cory took audio tapes given to Kenneth by Pastor MacArthur from the Nally home.   The tapes, which were returned upon Walter Nally's request, were by Pastor MacArthur and were entitled:  “The Qualities of True Love—Part 1”;  “The Qualities of True Love—Part 2”;  “The Qualities of True Love—Part 3”;  “The Qualities of True Love—Part 4”;  “Language Without Love”;  and “The Prominence of Love.”

In his declaration, Dr. Stephen Wilson, a psychiatrist, stated, in pertinent part:  “I have met and evaluated Walter Nally, his wife Maria and their son Walter Jr.   I have also read two (2) publications distributed by GRACE COMMUNITY CHURCH:  ‘Competent to Counsel’ by J. Adams and ‘Dying to Live’ by Don Smith.  [¶] Mr. Nally discussed with me the facts surrounding Kenneth's death and the testimonies ellicited [sic ] in the various depositions arising from his lawsuit.   Based on this information I have reached certain conclusions.  [¶] First, it is my opinion that Kenneth Nally was suffering from severe mental illness prior to his death.   It is apparent by history that there were numerous suicide attempts and that his thinking was considerably disturbed.   The attitude and naivete of the members of GRACE COMMUNITY CHURCH towards someone as severely disturbed as Kenneth Nally is incomprehensible to this evaluator.   It has been my experience on numerous occasions that Rabbis, Clergy, and other ecclesiastical persons who recognize severe emotional disturbances rapidly involved mental health professionals in their care.   This was not done by the members of GRACE COMMUNITY CHURCH.   Indeed, the consequence of their attempts to salvage a fellow church member resulted in increasing despair and anguish and ultimately in Kenneth Nally's suicide.  [¶] It is my opinion that the members of GRACE COMMUNITY CHURCH mishandled Kenneth and that he had been unduly influenced in his thinking by members of the Church.   This undue influence contributed to his inability to leave the Church and seek adequate treatment on his own.”

It is further noteworthy that Dr. Wilson is, in essence, making declarations with reference to the standard of care owed to Kenneth by Grace Church.   While Dr. Wilson may be qualified to comment upon the standard of care owed to someone by the medical profession, he is not competent to state what the standard of care is for a lay counselor at a church.

In his declaration, the Nallys' attorney, Edward Barker, stated, in pertinent part:  “[Kathryn Thayer] testified that in March 1979 she and Kenneth had an in depth [sic ] discussion about his suicide plan.   Kenneth expressed to her a fear that if he shot himself he might survive and be deformed.   She told him that he would probably not survive a shotgun blast.   Kenneth also discussed with her the pros and cons of going off to commit suicide in the woods.   Ms. Thayer did not relay any part of this conversation to any member of the NALLY family.   Three days later Kenneth committed suicide.”  [¶] “The deposition of pastor Fred Barshaw was also revealing.   He testified that ever since 1978 he believed that Kenneth Nally was ‘suicide prone.’   My notes also reflects [sic ] that pastor Barshaw said that Kenneth Nally's suicide proneness was common knowledge among the pastors at GRACE COMMUNITY CHURCH.   Pastor Barshaw said that he had counseled many suicidal people and I believe he said that he had discussed Kenneth Nally's situation with pastor JOHN MACARTHUR prior to Ken's suicide.   Pastor Barshaw said that when he initially counsels a suicidal person he would take a very complete history and he would call the family to discuss the persons background.  [¶] Carmen Rea, the wife of Defendant pastor DUANE REA was also deposed.   She testified that on March 20th and 22 [sic ], 1979 she had conversations with Kenneth Nally wherein she concluded that Kenneth Nally was suicidal.   At that time Kenneth Nally was staying at the home of pastor JOHN MACARTHUR.   She reached the conclusions [sic ] that it would be a very bad thing if Ken committed suicide while at pastor MACARTHUR's house.   She communicated this information to pastor MACARTHUR's wife Pat MacArthur.   Carmen Rea also testified that she telephoned WALTER NALLY and advised him that Ken was not getting better and needed to be hospitalized.   WALTER NALLY has advised me that this conversation never took place.”

In Bellah v. Greenson (1978) 81 Cal.App.3d 614, 146 Cal.Rptr. 535, petn. for hg. denied, S.Ct. Aug. 3, 1978, at pages 619 and 620, 146 Cal.Rptr. 535, the court stated:  “It has been held that the requisite special relationship does exist in the case of a patient under the care of a psychiatrist and that a psychiatrist who knows that his patient is likely to attempt suicide has a duty to take preventive measures.   Thus, in Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465 [62 Cal.Rptr. 577, 432 P.2d 193], and Meier v. Ross General Hospital (1968) 69 Cal.2d 420 [71 Cal.Rptr. 903, 445 P.2d 519], it was held that a wrongful death action would lie where the plaintiffs' decedent committed suicide while undergoing psychiatric treatment in a hospital.   In Vistica, the cause of action was held to exist against the hospital, which was the only named defendant, and in Meier, it was found to exist against both the hospital and the decedent's treating physician.”   However, the Bellah court distinguished Vistica and Meier (both of which involved the suicide of a patient while hospitalized) from a suicide committed by a patient being treated by a psychiatrist on an out-patient basis.   Furthermore, the Bellah court declined to extend a psychiatrist's duty to warn a specific victim of a patient's assault (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334) to a situation involving a patient's self-inflicted injury.

Here, it is uncontradicted that Kenneth Nally was not living in defendant MacArthur's home at the time of his suicide but was living with his parents, plaintiffs herein.   It is further uncontradicted that Kenneth Nally took his own life in a friend's apartment, which apartment, contrary to the allegations in the plaintiffs unverified complaint, was never owned, operated or controlled by Grace Church.

Clearly, if a duty cannot be imposed upon a psychiatrist (trained and paid for analyzing, evaluating and treating patients with serious suicidal tendencies) to prevent the suicide of a patient being treated on an out-patient basis as in Bellah, such a duty certainly can not and should not be imposed upon functionaries or lay counselors of various religious faiths.   Moreover, as a practical matter, to hold otherwise would pose a dangerous threat to federal and state constitutional guarantees of religious freedom and freedom of speech and could seriously inhibit ministers, priests, and rabbis and other ecclesiastical persons of various religious denominations from seeking to help a person overcome suicidal tendencies through spiritual guidance.

The majority opinion contains a short passage out of a 12-tape series entitled “Rich Thomson:  Principles of Biblical Counseling” for the proposition that “a reasonable inference could be drawn that Grace Community Church and each of the individual defendants followed a policy of counseling suicidal persons that, if one was unable to overcome one's sins, suicide was an acceptable and even a desirable alternative to living.”   This court has never been provided with the full text of these 12 tapes so that we could review this passage in proper context.   Instead, we were provided with merely five paragraphs excerpted and transcribed in the declaration of Carol Tsuji.   This 12-tape series was not among the list of tapes that Kenneth had in his possession and apparently were designed for the counselors at the church.   However, there is no indication that these tapes contained mandatory guidelines for the counselors to follow.   The contrary is implied by the following passage regarding referrals to psychologists:  “But my job as the biblical counselor is to help him deal with the root cause of the problem, allright [sic ].   I don't, however, refer to a psychologist or a psychiatrist and this is my own personal conviction because of the stance I come from.   I don't refer to a psychologist or psychiatrist even though they're Christian, unless I believe that that person is coming from the viewpoint that the emotional problems are caused by spiritual problems.   That will be your choice of course.”  (Emphasis added.)

The majority opinion also extracts from Pastor MacArthur's 95-page deposition a statement that he (Pastor MacArthur) “perhaps contributed to” Kenneth's depression.   After reading the series of questions involved with this statement, I have concluded that the majority opinion improperly implies that Pastor MacArthur acknowledged a large contributory role in Kenneth's depression when, in fact, Pastor MacArthur's statement dealt with the many factors leading to Kenneth's depression, including the “others around him and very close to him,” predominately stated to be his family and his girlfriend.

The majority opinion states that “the complaint also contains a cause of action for intentional infliction of emotional distress (captioned “OUTRAGEOUS CONDUCT”) in which it alleged that each of the individual defendants, acting as an agent of the church, exacerbated Kenneth Nally's preexisting feelings of guilt, anxiety, and depression, knowing that Kenneth Nally had suicidal tendencies and that this conduct would increase the likelihood that Kenneth Nally would take his own life.”

The majority opinion then bases its reversal on the ground “that triable issues of fact remain as to whether Kenneth Nally's suicide was caused by intentional infliction of emotional distress,” [but] acknowledges that case law authority holds that negligent brainwashing is insufficient.

I am unable to find within the four corners of the complaint any allegation of an “intentional infliction of emotional distress.”   The majority opinion extrapolates these words from count III's designation (OUTRAGEOUS CONDUCT) and paragraph 30's allegation that the defendants' conduct was “done with reckless disregard of the health, safety and well being of Kenneth Nally and constituted outrageous conduct.”

In my view, none of the counter affidavits of plaintiffs raise triable issues of fact which show such reckless disregard of the health, safety and well being of Kenneth Nally as to constitute outrageous conduct.  “The rule of liberal construction should not be applied to affidavits in opposition to the motion [for summary judgment], in such a way as to defeat the very purpose of the procedure.”  (Snider v. Snider (1962) 200 Cal.App.2d 741, 752, 19 Cal.Rptr. 709.)

In my view, the majority has incorrectly applied the holdings of Tate v. Canonica (1960) 180 Cal.App.2d 898, 5 Cal.Rptr. 28, to the case at bench.   In holding that a defendant can be liable in a wrongful death action based upon a suicide that was caused by the defendant's intentional infliction of emotional distress, the court stated:  “Consequently, we believe that, in a case where the defendant intended, by his conduct, to cause serious mental distress or serious physical suffering, and does so, and such mental distress is shown by the evidence to be ‘a substantial factor in bringing about’ (Rest., Torts, §§ 279, 280) the suicide, a cause of action for wrongful death results, whether the suicide was committed in a state of insanity, or in response to an irresistible impulse, or not.   This rule would not apply where the act of the defendant was intentionally done, but there was no intent to cause injury.   It is applicable only where the actor intended to cause injury, and the injury is a substantial factor in bringing about the suicide, i.e., is really a cause, in fact, of the suicide.   This does not mean that, in every case where the actor intentionally causes serious mental distress or physical suffering, and this is followed by suicide, the actor is necessarily liable for the suicide.   The mental distress or physical suffering may not be, in the particular case, as a matter of fact, a substantial factor in bringing about the suicide ․”  (Id., at p. 909, 5 Cal.Rptr. 28;  emphasis in original.)

In the case at bench, the uncontroverted evidence was that the church members attempted to disuade Kenneth from committing suicide and encouraged him to seek psychological assistance.   There was no evidence that the church intended for Kenneth to take his own life.   The majority bases its holding upon the slenderest of reeds since there was no evidence whatsoever that Kenneth either heard the tape, which allegedly discussed suicide as a favorable alternative, or was told this by any church member.

The majority opinion attempts to distinguish Tate v. Canonica, supra, 180 Cal.App.2d 898, 5 Cal.Rptr. 28, by arguing that, unlike Tate, reckless disregard of the probability of causing emotional distress was alleged in the case at bench.   However, it is absurd and totally contrary to the purpose of the Summary Judgment Act to permit a bare allegation of reckless activity to shelter an action from the Summary Judgment Act in cases, such as this, where the uncontroverted evidence is to the contrary.

In holding that a defendant can be liable in a wrongful death action based upon a suicide that was caused by the defendant's negligent infliction of emotional distress, the Tate court stated:  “[T]hat where the negligent wrong only causes a mental condition in which the injured person is able to realize the nature of the act of suicide and has the power to control it if he so desires, the act then becomes an independent intervening force and the wrongdoer cannot be held liable for the death.   On the other hand, if the negligent wrong causes mental illness which results in an uncontrollable impulse to commit suicide, then the wrongdoer may be held liable for the death.   Some cases speak of ‘insanity,’ and of ‘delirium or frenzy,’ and take the view that if the decedent knew what he was doing, the suicide is an independent intervening cause.   We think, in the light of modern knowledge as to mental illness, that this view is too narrow.   It should not make any difference that the decedent ‘knew what he was doing.’   If defendant is to avoid liability, the decedent's act must be voluntary, not in that sense but in the sense that he could, in spite of his mental illness, have decided against suicide and refrained from killing himself.”  (Id., at p. 915, 5 Cal.Rptr. 28.)

In the case at bench, there was no evidence that Kenneth lost the ability to refrain from suicide if he so desired.   His suicide therefore served as an independent intervening force.

The majority opinion implies that Pastor MacArthur's declaration is based on something less than the “personal knowledge” required under Code of Civil Procedure section 437c, as stated in 4 Witkin, California Procedure (1983 Supp.), Proceedings Without Trial, section 185:  “Although the requirement of ‘admissible evidence’ was retained, the section was amended in 1980 to require that objections be made to inadmissible evidence, either in writing or at the hearing, or they ‘shall be deemed waived.’  (C.C.P. 437c, par. 2, (now C.C.P. 437c(b)).)   And, if not objected to, such evidence may be relied on by the trial court in ruling on the motion (See Supp., infra, § 196A.)  (See 12 Pacific L.J. 291.)”   No objections were made in the case at bench.   Furthermore, Pastor MacArthur's declaration ended with the statement that he was “ready, willing and able to testify as to the matters contained in this declaration.”

The summary judgment act was revised in 1973 in order to, according to one commentator, place “new teeth for an old tiger.”  (Zack, New Teeth for an Old Tiger, 48 Cal. State Bar J. 654.)   The commentators anticipated the 1973 revision to lead to fewer reversals of cases in which summary judgment was granted.  (See 4 Witkin, Cal.Procedure (1983 Supp.) Proceedings Without Trial, § 199 and 5 Pacific L.J. (1974) Selected 1973 California Legislation, pp. 289, 292.)

“A summary judgment which terminates unmeritorious litigation may be a ‘drastic remedy’ as applied to a plaintiff but at the same time to the same degree it may be just and beneficient to a defendant.  [¶] Both the codes and decisional law give a plaintiff every reasonable opportunity to plead and present a cause.   Justice requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one.   A defendant, though his liability be speculative and asserted contingently, is subject to depositions, interrogatories, pleading, court appearances, attorneys fees and costs of preparing his defense.   Though ultimately a winner, for the absence of a meritorious cause against him, he may still be a loser, because of the cost in time and money of the process to which he was subjected.   His only ‘showdowns' to stop unmeritorious claims against him are the general demurrer, seldom effective with the pleading latitude given plaintiffs;  and the motion for summary judgment.   The motion is not to try the disputed facts;  but is to find whether there are any facts to dispute, sufficient to support the complaint or the answer made to it.”  (Larsen v. Johannes (1970) 7 Cal.App.3d 491, 507, 86 Cal.Rptr. 744.)

In the case at bench, the trial court overruled defendants' demurrer to plaintiffs' complaint on June 13, 1980.   Defendants filed their answer on July 25, 1980, followed by a motion for summary judgment.   The plaintiffs filed their points and authorities in opposition to defendants' motion for summary judgment on July 17, 1981, and on that date the trial court advised counsel to have discovery completed within 40 days and continued the matter to October 2, 1981, the date of the hearing.   Extensive discovery had already been completed prior to the July 17 date.

Here, in the final analysis, the tragic story that develops is one of a youth who prior to and subsequent to becoming affiliated with Grace Church was suffering from emotional problems stemming from his relationships with women and his family.   He constantly sought advice from people he respected prior to his affiliation with Grace Church and those connected with Grace Church as well as persons in the medical and psychiatric field, yet consistently rejected such advice.   His parents, the plaintiffs herein, themselves, were clearly aware of Kenneth's suicidal tendencies and his consistent rejection of help from all sources, and took no steps to have him committed for psychiatric hospitalization against his will.

The plaintiffs have failed to show that the Grace Church deterred Kenneth from seeking professional psychological help.   To the contrary, the declarations reveal that Kenneth was urged by the members of Grace Church to cooperate with the psychiatrist during his stay at Verdugo Hills Hospital and thereafter.   Regarding the intentional infliction of emotional distress, as stated above, there was no evidence that the church acted intentionally or in such a reckless manner as to constitute intentional conduct to cause injury, or that this injury, if any, was a substantial factor in bringing about Kenneth's suicide.

To hold otherwise, under the facts of this case, could have the deleterious effect of opening a virtual Pandora's box of litigation by subjecting all of the various religious faiths and their clergy (e.g., ministers of the numerous Protestant denominations;  priests of the Roman Catholic faith and the various Eastern Orthodox religions;  rabbis of the Jewish faith, orthodox, conservative and reform;  etc.) to wrongful death actions and expensive full-blown trials simply because they were unsuccessful in their sincere efforts through spiritual counseling to help or dissuade emotionally disturbed members of their congregations, who may be suicide prone, from carrying out such a predisposition.¹

I am not saying that a church under any conceivable set of facts could never be liable for the intentional infliction of emotional distress.   I am saying that in the case at bench, through the proper and fair application of the statutorily created summary judgment procedures, there are no triable issues of fact upon which to base liability under any theory alleged, including intentional infliction of emotional distress.

For the reasons stated herein, I would affirm the granting of summary judgment.

FOOTNOTES

1.   Although plaintiffs state that one of the tapes found in Kenneth Nally's room after the suicide was a tape stating that Ernest Hemingway had committed suicide by a self-inflicted gunshot wound to the head after many years of having sinned, the record does not reflect that such evidence was introduced, and the possible existence of such evidence is irrelevant to our determination whether summary judgment should have been granted.   We do note, however, that, if such evidence is available to plaintiffs, it would be of significant probative value on causation.

1.   Our founding fathers placed a high emphasis on freedom of religion and speech.   The First Amendment to the United States Constitution, in pertinent part, declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;  or abridging the freedom of speech, ․”  (Emphasis added.)

DALSIMER, Associate Justice.

GUTIERREZ,* J., concurs.