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

Daniel P. Potter Daniel P. Potter

Electronically RECEIVED on 10/8/2021 at 11:38:30 AM Electronically FILED on 10/8/2021 by Karla Dominguez, Deputy Clerk

Mr. Daniel P. Potter

Clerk of the Court/Executive Officer
Court of Appeal, Second Appellate District
300 South Spring Street
Second Floor, North Tower
Los Angeles, California 90013

Re: Bixler v LASC (Church of Scientology International)

Case No.: B310559; LASC Case No.: 19STCV29458
Dear Mr. Potter,
Plaintiffs respectfully submit this memo in response to Defendants’ October 1, 2021 Letter
Brief addressing whether the compelled arbitration is sufficiently neutral to constitute an
enforceable arbitration. As Plaintiffs established in their Letter Brief, and as further outlined
below, the Committee of Evidence procedure through which the Defendants exercise ultimate
decision-making power is entirely inconsistent with the concept of arbitration and is thus
unenforceable. The absolute lack of neutrality evidenced by Defendants’ dispute resolution system
and is sufficiently extreme to justify court intervention. Under a neutral principles of contract law
analysis, this Court can find that the agreement lacks enforceability and may do so without
offending Defendants’ First Amendment Rights.
Further, as evidenced by the Declaration of Luis Garcia, the so-called arbitration will be
“unfair, one-sided, and corrupt” and entirely “inconsistent with statements they made . . . about
how the process of religious arbitration would play out.” See Declaration of Robert W. Thompson,
Attachment A (Declaration of Luis Garcia). Specifically, Plaintiffs will not be allowed to be
represented by counsel and will have to face the very people that have been harming them all while
being surrounded by guards. See Id. Defendants position is that “attorneys had no role to play
whatsoever, this was a religious proceeding.” See Id. Except when it comes to Defendants, who
will have their attorney, Gary Soter present for the so-called arbitration. See Id. Nor will there be
any court reporter or record. See Id.
Plaintiffs will not be allowed to call witnesses and will be severely limited, if not entirely
prevented from, submitting any documents as evidence. See Id. Any evidence critical of
Defendants is considered “entheta,” a scientology term which means “enturbulated thought.” See
Id. Defendants “use this label for anything that is remotely critical or negative about scientology,
even if the information is factual and true. Members are indoctrinated to never listen and reject
anything that is deemed “entheta” by the officials of scientology.” See Id. The person Defendants
will put in charge of the so-called arbitration, Mike Ellis, is “the ultimate authority on ecclesiastical
justice matters” and it will be him, and only him, that “decide[s] what procedure [will] be
followed.” See Id. Mr. Ellis will take the position that Plaintiffs have been declared “Suppressive
Persons,” which are individuals “considered an enemy of Scientology and are to be destroyed,
‘ruined’ and ‘obliterated’ pursuant to well established rules of Scientology to be followed by every
Scientologist. See Id. Any Plaintiff’s arbitration will last less than an hour. See Id.

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 I. The Cheng Holding Is Inapposite to Defendants’ Claim That the Scientology
Arbitrator Selection Process Is Fair and The Overall Agreement Enforceable
The key issue in Cheng was whether the procedure in question constituted an arbitration at
all and not, as Defendants would lead this Court to believe, whether the agreement evinced the
party’s intent to arbitrate and waive their right to a judicial forum. Cheng-Canindin v. Renaissance
Hotel Assocs., (1996) 50 Cal.App.4th 676, 687 (hereinafter “Cheng”). Defendants rely on facts
that are immaterial to this Court’s central inquiry to bolster their strawman argument, and, in so
doing, underscore the parallel facts that, under a proper reading of Cheng, require this Court to
find the religious services arbitration agreement unenforceable.
Defendants suggest that the voluntary nature of the procedure at issue in Cheng renders it
wholly distinguishable from the Committee of Evidence procedure at issue; however, the question
of voluntariness in the Cheng case, as in the present case, is irrelevant because the parties cannot
agree to something that does not exist. In Cheng, the court refused to accept that an employee’s
agreement to an internal dispute resolution procedure as a condition of employment, though
decisions were purportedly “final and binding,” evinces their intent to enter into a binding
arbitration agreement. Cheng, at 692. So should this Court refuse to accept that Plaintiffs’ consent
to the terms of a religious services agreement upon which the receipt of Scientology services is
conditioned, evinces their intent to forever be bound by the Church’s internal “arbitration”
procedure, particularly for claims arising from conduct that occurred after they left the Church and
thus while they were no longer receiving the services for which they contracted. Plaintiffs did not
enter into a valid arbitration agreement, and they certainly did not intend to forgo the opportunity
to exercise their rights in a judicial forum in lieu of internal Church dispute resolution procedures.
That the religious services agreements contained language purporting to divest Plaintiffs and their
representatives of their right to sue or seek legal recourse, underscores the illusory nature of the
agreement itself. (See 6 EP 1502; 7 DEO 1642 ¶¶ 6, 6.a., 6.c.)
Similarly, that the agreement at issue in Cheng did not contain the word “arbitration,” is
inconsequential because, “the failure of the agreement to identify the grievance procedure as
‘arbitration’ is not fatal to its use as a binding mechanism for resolving disputes between the
parties.” Cheng at 684. More important is the “nature and intended effect of the proceeding.” Id.
As in Cheng, the nature and intended effect of the Committee of Evidence procedure compels the
conclusion that the parties did not enter into an arbitration agreement; whether the parties intended
it to is irrelevant because the procedure described by Defendants is entirely inconsistent with the
definition of arbitration. A process wherein one party effectively has “unfettered power to
determine the jurisdiction of the Committee and also controls whether witnesses will appear or
otherwise participate in the proceedings” is not an arbitration. Cheng, at 691. The fact that
Defendants claim the Committee of Evidence procedure is “designed for fair and equitable
treatment” of the parties, is insufficient to establish that the agreement constitutes binding
arbitration where the Church effectively retains ultimate decision-making powers. (7 DEO 1554 ¶
18).
To the extent that Defendants argue that the law permits party-affiliated representatives or
other partial decision makers to a play a role in an arbitration, that is true so long as the procedure

2
also contains some impartial means of resolving those disagreements which cannot be resolved by
the partial decision makers. Here, as in Cheng, the ultimate decision makers are not simply party-
affiliated; they are parties to the dispute, and Plaintiffs have no representative to offset the Church’s
“inherent, substantial and obvious power.” Cheng, at 688.
II. Questions Of Procedural Fairness and Arbitrator Bias Are Inextricably
Intertwined with Protection of Plaintiffs’ First Amendment Rights
While it is unnecessary to address the issue of arbitrator bias where the parties did not enter
into an arbitration agreement at all, this Court may consider the issue without offending principles
of ecclesiastical deference by applying neutral, generally applicable principles of contract law to
determine whether there is a valid and enforceable agreement.

Defendants suggest that any challenge to the arbitration agreements based on the arbitrator
qualification clause is beyond this Courts assessment in one breath, yet they suggest in the next
breath that questions of bias or unfairness may be addressed after arbitration under the Federal
Arbitration Act (FAA). If, as Defendants’ claim, this Court may not assess arbitrator neutrality, so
to would the Court be forbidden from later consideration of the same evidence under the FAA.
Either it is Defendants’ position that principles of ecclesiastical deference apply, or neutral
principles of law apply. Defendants cannot have it both ways.
In a nation governed by “ordered liberties” Congress may not legislate to cover religious
disputes where such legislation creates “hostility” toward a religion (or lack of religion). Locke v.
Davey, (2004) 124 S. Ct. 1307, 1315; Presbyterian Church in U.S. v. Mary Elizabeth Blue
Hull Mem’l Presbyterian Church, (1969) U.S. 440, 449; Kedroff v. St. Nicholas Cathedral of
Russian Orthodox Church in N. Am., (1952) 344 U.S. 94, 116; Watson v. Jones, (1872)  80 U.S.
679, 728–33. Extending the FAA to religious agreements for religious services would
inappropriately create a presumption favoring religious institutions who want to keep neutral
principles of general applicability out of court. In essence, the FAA would help dictate how
individuals may practice their religion. Instead, this Court may consider the neutral principles of
general applicability embodied in the claims of this case. Employment Div. v. Smith, (1990) 494
U.S. 872, 878–79. So long as liability is predicated on Defendants’ secular, tortious conduct and
resolution of the claims does not require this Court to interpret church doctrine, it does not offend
constitutional principles.
III. If The Arbitration Procedures Are Found to Be Beyond This Court’s Assessment,
Their Enforcement Must Also Be Beyond This Court’s Approval
To be clear, Plaintiffs do not disagree with the principles of ecclesiastical deference—so
long as they are applied appropriately. As Defendants readily point out, application of the doctrine
is appropriate only when the underlying dispute involves matters of internal governance. See,
Kedroff, 344 U.S. at 116. The Church of Scientology may freely establish the conditions of
participation/membership free from government intrusion and those conditions may be relevant
insofar as one is seeking to continue “receiving scientology services,” but the crux of this case
rests on claims arising from rape and sexual assault. In some of the agreements, “religious
services” is defined as the specific religious coursework in which the Plaintiffs enrolled (Exhibits

3
1-7); in others, it refers to the general prescript of church activities and practices (Exhibits 8-14
¶2). The conditions for membership are thus irrelevant once an individual exits the Church, as
Plaintiffs did years ago. Indeed, Plaintiffs have rejected the Scientology Religion and their causes
of action are based on conduct after they left the Church and thus entirely unrelated to the receipt
of religious services or consideration for participation as members of the Church.
To force Plaintiffs to arbitrate according to the principles of a religion they have since
abandoned flies in the face of their First Amendment rights. The religious services arbitration at
issue is not just tangentially impacted by religious doctrine—it is defined by it.  (See generally, 1
EP 185-90). Finding that an overall agreement for religious services is above scrutiny while
upholding the religious arbitration procedures embedded within that agreement creates a haven for
any religious institution to deem any cause of action “religious,” thereby shielding themselves
from judicial oversight. The agreements allegedly bind Plaintiffs not to arbitration but to the
“religious procedures of Scientology,” in violation of their Frist Amendment right to religious
freedom. Therefore, if this Court were to find the arbitration agreement to be too imbued with
religious doctrine for a court to consider, so to must the enforcement of those procedures be beyond
this Court’s approval. See, e.g., In Matter of Ismailoff (N.Y. Surrogate’s Ct., Nassau Cty., Feb. 1,
2008) No. 342207, 2007 WL 431024, *2 (refusing to enforce an arbitrator qualification clause that
required selections of “three persons of the Orthodox Jewish Faith” because such a determination
would violate the Establishment Clause).
IV. Conclusion
Defendants’ attempts to distinguish the present case from Cheng are unconvincing and
their reliance on Garcia is misguided. This Court can apply neutral principles of contract law
without offending the ecclesiastical abstention doctrine to find the Committee of Evidence
procedure lacks the characteristics of an enforceable arbitration.

Respectfully Submitted,

Marci A. Hamilton, Esq.

Counsel for Plaintiffs

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 Court of Appeal, Second Appellate District
Daniel P. Potter
Electronically FILED on 10/8/2021 by Karla Dominguez, Deputy Clerk

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

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

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

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

Title(s) of papers e-served:

Filing Type Document Title
BRIEF - SUPPLEMENTAL BRIEF 2021.10.08 Reply Letter Brief
Service Recipients:
Date /
Person Served Email Address Type
Time
Pamela Tanigawa [email protected] e- 10/8/2021
Winston & Strawn LLP Serve 11:38:30
AM
Marci Hamilton [email protected] e- 10/8/2021
Court Added Serve 11:38:30
AM
Margaret Dayton [email protected] e- 10/8/2021
Winston & Strawn LLP Serve 11:38:30
274353 AM
William Forman [email protected] e- 10/8/2021
Winston & Strawn LLP Serve 11:38:30
150477 AM
William Forman [email protected] e- 10/8/2021
Winston & Strawn LLP Serve 11:38:30
150477 AM
Robert Thompson [email protected] e- 10/8/2021
Thompson Law Offices, P.C. Serve 11:38:30
250038 AM
Frederick Bennett [email protected] e- 10/8/2021
Superior Court of Los Angeles County Serve 11:38:30
47455 AM
David Scheper [email protected] e- 10/8/2021
Winston & Strawn LLP Serve 11:38:30
120174 AM
Andrew Brettler [email protected] e- 10/8/2021
Lavely & Singer Professional Corporation Serve 11:38:30
262928 AM
Matthew Hinks [email protected] e- 10/8/2021
Jeffer, Mangels, Butler & Mitchell, LLP Serve 11:38:30
200750 AM
Leslie Griffin [email protected] e- 10/8/2021
Serve 11:38:30
174017 AM

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

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

10/8/2021
Date

/s/Robert Thompson
Signature

Thompson, Robert (250038)

Last Name, First Name (PNum)

Thompson Law Offices, P.C.

Law Firm