OPERATION CLAMBAKE: SCIENTOLOGY COURT FILES

Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)




                         Dee ROWE, et al., Petitioners,
                                       v.
              The SUPERIOR COURT of Los Angeles County, Respondent;
 CHURCH OF SCIENTOLOGY OF ORANGE COUNTY, etc., et al., Real Parties in Interest.
                                  No. B070406.
            Court of Appeal, Second District, Division 3, California.
                                  May 25, 1993.
  Plaintiff sought writ of mandate to review order of the Superior Court, Los
 Angeles County, No. BC038955, Paul Flynn, J., which denied motion to amend
 complaint to assert claim for punitive damages against religious organization.
 The Court of Appeal, Croskey, J., held that:  (1) statute setting forth
 threshold for pleading claim of punitive damages against religious organization
 requires only that plaintiff demonstrate existence of sufficient evidence to
 establish a prima facie case for punitive damages, with the court engaging in
 no weighing plaintiff's evidence against defendant's evidence;  (2) as so
 construed, statute does not violate constitutional right to jury;  and (3)
 statute does not violate establishment clause.
  Alternative writ discharged and peremptory writ issued.

 [1] JURY
 Seventh Amendment only guarantees federal right to jury trial in civil cases,
 and is not binding on the states.  U.S.C.A. Const.Amend. 7;  West's
 Ann.Cal. Const. Art. 1, s 16.

 [2] JURY
 Claims for intentional torts, including punitive damages, are of type to which
 right to jury trial attaches.  West's Ann.Cal. Const. Art. 1, s 16.

 [3] JURY
 If statute setting forth threshold requirement for pleading punitive damages
 against religious organization were construed to require trial judge to weigh
 evidence on both sides and only permit the filing of claim for punitive damages
 if the court finds that plaintiff will prevail, right to jury trial would be
 clearly violated.  West's Ann.Cal. Const. Art. 1, s 16;  West's
 Ann.Cal.C.C.P. s 425.14.

 [4] STATUTES
 Where statutory language is clear and ambiguous, there is no need for
 construction.

 [5] CONSTITUTIONAL LAW
 Court is required to resolve any ambiguity in statute in manner which is

 consistent, not inconsistent, with constitutional rights.

 [6] JURY
 Statute setting forth threshold requirement for pleading punitive damages
 against religious organization requires only that plaintiff demonstrate the
 existence of sufficient evidence to establish prima facie case of punitive
 damages, and trial court is not required to make any factual determination or
 to become involved in any weighing process beyond that necessarily involved in
 deciding whether prima facie case for punitive damages exists and, as so
 construed, statute does not violate right to jury trial.  West's Ann.Cal.
 Const. Art. 1, s 16;  West's Ann.Cal.C.C.P. s 425.14.

 [7] CONSTITUTIONAL LAW
 Benevolent neutrality required by First Amendment involves delicate balance
 between avoidance of sponsorship on one hand and interference on the other.
 U.S.C.A. Const.Amend. 1.

 [8] CONSTITUTIONAL LAW
 Establishment clause is made applicable to the states through the Fourteenth
 Amendment.  U.S.C.A. Const.Amends. 1, 14.

 [9] CONSTITUTIONAL LAW
 Establishment clause was intended to protect against sponsorship, against
 financial support of religion by civil government, and against active
 involvement of sovereign in religious activity.  U.S.C.A. Const.Amend. 1.

 [10] CONSTITUTIONAL LAW
 Grant of benefit to religious organization is permissible if it has a valid
 secular purpose, if it does not have primary effect of advancing religion or
 any particular religious sect, and if it does not foster excessive government
 entanglement in religion.  U.S.C.A. Const.Amend. 1.

 [11] CONSTITUTIONAL LAW
 Validity of any particular benefit to religion depends upon whether benefit
 constitutes accommodation of religion or is an impermissible advancement.
 U.S.C.A. Const.Amend. 1.

 [12] CONSTITUTIONAL LAW
 Statute setting forth threshold requirement for pleading of punitive damages
 against religious organization meets the Lemon criteria and does not violate
 establishment clause.  U.S.C.A. Const.Amend. 1;  West's Ann.Cal.C.C.P. s
 425.14.

 [12] RELIGIOUS SOCIETIES
 Statute setting forth threshold requirement for pleading of punitive damages
 against religious organization meets the Lemon criteria and does not violate
 establishment clause.  U.S.C.A. Const.Amend. 1;  West's Ann.Cal.C.C.P. s
 425.14.

 [13] CONSTITUTIONAL LAW
 Where subject is legislation which seeks to advance free exercise values, rigid
 application of Lemon criteria is not appropriate for determining whether it
 violates the establishment clause.  U.S.C.A. Const.Amend. 1.

 [14] CONSTITUTIONAL LAW
 Broad class of institutions and organizations benefitted by statute which also
 benefits religious organizations is not essential for establishing a proper
 purpose for benefit to religious organization, and it is not required that the
 benefits to religion come packaged with benefits to secular entities.
 U.S.C.A. Const.Amend. 1.

 [15] CONSTITUTIONAL LAW
 Requirement that statute which benefits religion have secular purpose does not
 amount to requirement that the law's purpose be unrelated to religion.
 U.S.C.A. Const.Amend. 1.

 [16] CONSTITUTIONAL LAW
 To facilitate benevolent neutrality toward religion, government may make
 accommodations to religion without violating the establishment clause.
 U.S.C.A. Const.Amend. 1.

 [17] CONSTITUTIONAL LAW
 Laws discriminating among religions are subject to strict scrutiny, but laws
 which afford uniform benefit to all religions are upheld if rationally related
 to the furtherance of a legitimate end, and are found invalid only if wholly
 motivated for impermissible purpose.  U.S.C.A. Const.Amend. 1.

 [18] APPEAL AND ERROR
 Issue which was arguably raised in the trial court but which was not briefed or
 argued on appeal was waived.

 [18] APPEAL AND ERROR
 Issue which was arguably raised in the trial court but which was not briefed or
 argued on appeal was waived.

 [19] APPEAL AND ERROR
 Where it appeared that court imposed improper standard in determining adequacy
 of pleading of punitive damages against religious organization, remand was
 required for court to reconsider the issue under proper standard.  West's
 Ann.Cal.C.C.P. s 425.14.

 [20] MOTIONS
 Party seeking to comply with requirements for asserting punitive damage against
 religious organization should be able to do so at any time that there is
 sufficient evidence available to make the required prima facie showing, and
 party thus should be free to renew a properly denied motion upon subsequent and
 timely discovery of additional evidence.  West's Ann.Cal.C.C.P. s 425.14.

 [20] RELIGIOUS SOCIETIES
 Party seeking to comply with requirements for asserting punitive damage against
 religious organization should be able to do so at any time that there is
 sufficient evidence available to make the required prima facie showing, and
 party thus should be free to renew a properly denied motion upon subsequent and
 timely discovery of additional evidence.  West's Ann.Cal.C.C.P. s 425.14.
  **626 *1715 Cummins & White, Barry Van Sickle, Richard J. Wynne and Toby
 L. Plevin, Los Angeles, for petitioners.
  No appearance for respondent.
  Rabinowitz, Boudin, Standard, Krinsky & Lieberman, Eric M. Lieberman, Hillary
 Richard, New York City, Bowles & Moxon, Karen D. Holly and Laurie J. Bartilson,
 Hollywood, for real parties in interest.

  CROSKEY, Associate Justice.
  Petitioners Dee Rowe and S. Glover Rowe (collectively "Rowe") seek a
 writ of **627 mandate to overturn the trial court's refusal to permit the
 amendment of Rowe's complaint against the Church of Scientology of Orange
 County ("Scientology") [FN1] to allege a claim for punitive damages.  Such pre-
 pleading permission by the court is a requirement imposed by Code of Civil
 Procedure section 425.14. [FN2]  Rowe attacks this legislation by asserting
 that it is unconstitutional on the grounds that it violates (1) California's
 constitutional guarantee of a jury trial and (2) the establishment clause of
 the First Amendment to the United States Constitution.  We conclude that Rowe
 is incorrect on both points.  However, because it appears that the trial court
 *1716 may not have applied the proper standard in evaluating Rowe's proposed
 amended pleading, we grant the writ.

      FN1. Church of Scientology International, Religious Technology Center and
     Sea Organization were also named as defendants in Rowe's complaint.  For
     purposes of this opinion there is no reason to distinguish between them and
     they are all embraced within the term "Scientology."

      FN2. Unless otherwise noted, all further statutory references are to the
     Code of Civil Procedure.
     Section 425.14 provides:
     "No claim for punitive or exemplary damages against a religious corporation
     or religious corporation sole shall be included in a complaint or other
     pleading unless the court enters an order allowing an amended pleading that
     includes a claim for punitive or exemplary damages to be filed.  The court
     may allow the filing of an amended pleading claiming punitive or exemplary
     damages on a motion by the party seeking the amended pleading and upon a
     finding, on the basis of the supporting and opposing affidavits presented,
     that the plaintiff has established evidence which substantiates that
     plaintiff will meet the clear and convincing standard of proof under
     Section 3294 of the Civil Code.  [P] Nothing in this section is intended
     to affect the plaintiff's right to discover evidence on the issue of
     punitive or exemplary damages."

                          FACTUAL AND PROCEDURAL BACKGROUND
  On October 3, 1991, Rowe filed a complaint against Scientology alleging claims
 for fraud, false imprisonment, assault, intentional infliction of emotional
 distress, invasion of privacy and deceptive trade practices.  The allegations
 arose out of a relationship which began with a management and consulting
 contract between Rowe and a company known as Sterling Management Systems
 ("Sterling") which Rowe claims was a Scientology "front group."  This contract
 related to Rowe's Alabama dental practice.  Subsequently, Rowe alleges,
 Sterling recruited Rowe to enroll and participate in counseling programs at
 Scientology's Orange County facility located in Tustin, California.
  There is no need to recite in detail the factual allegations concerning
 Scientology's claimed misconduct.  It is sufficient to note that Rowe's
 complaint charged six separate intentional torts each of which was alleged to
 have been committed with malice and oppression.  Based on such allegations,
 Rowe sought recovery of punitive damages.
  Scientology responded with a motion to strike Rowe's allegations and prayer
 for punitive damages on the ground that Rowe had not complied with the
 requirement of section 425.14 to first obtain leave of court before seeking
 such relief.  On December 11, 1991, the trial court granted the motion. [FN3]

      FN3. Rowe sought a writ of mandate from this court with respect to such
     order, claiming that section 425.14 violated the establishment clause of
     the First Amendment of the United States Constitution.  On February 26,
     1992, we denied Rowe's petition without prejudice "to the filing of a
     motion to amend the complaint in the court below."

  Thereafter, Rowe made a motion for leave to amend the complaint to allege a
 prayer for punitive damages.  In support of the motion, Rowe filed three
 declarations and documentary material apparently copied from certain
 Scientology publications.  In addition, Rowe argued that section 425.14
 violated two constitutional guarantees:  (1) the right to a jury trial under
 both the United States and California constitutions and (2) the establishment
 clause of the First Amendment.
  Scientology opposed this motion with excerpts from depositions of Rowe and
 certain documentary evidence together with legal argument regarding the
 admissibility of Rowe's evidence and a response to the **628 constitutional
 *1717 questions raised.  Scientology concluded its opposition with arguments
 which bear upon the issue before us:  "... the only evidence submitted by
 plaintiffs in support of their pending motion consists of the declarations of
 Dee Rowe and S. Glover Rowe.  As demonstrated ... those declarations do not
 satisfy the Rowe's burden of establishing their claim for punitive damages by
 clear and convincing proof";  and later, "the evidence offered by [Rowe] not
 only is not 'clear and convincing,' it is largely inadmissible.  Analysis of
 the remaining admissible evidence pursuant to s 425.14 reveals that
 plaintiffs have failed to meet the clear and convincing standard, or any lesser
 standard for that matter." [FN4]

      FN4. This argument in effect assumes that section 425.14 imposes a
     requirement that Rowe must satisfy the court of ultimate success on the
     punitive damage issue before a pleading will be permitted.  Such
     construction of the statute finds an echo in the trial court's own
     ruling.  (See fn. 6, post.)  As we point out below, to construe the statute
     in this manner would result in an unconstitutional impairment of the right
     to a jury trial.

  On September 22, 1992, the motion came on for hearing.  The trial court
 rejected Rowe's constitutional arguments with little or no discussion [FN5] and
 then heard extensive argument as to whether Rowe had satisfied the "clear and
 convincing" pre-pleading hurdle of section 425.14.  After considering the
 competing declarations and evidence before it the court denied Rowe's motion.
 In describing the conclusion which it reached it appears that the court was of
 the opinion that section 425.14 required Rowe to demonstrate evidence
 sufficient to satisfy the clear and convincing standard and that, after
 weighing the evidence before it, the court concluded that Rowe had failed to
 meet that burden. [FN6]  Rowe's motion was therefore denied.

      FN5. Although the record is not entirely clear, it appears that these
     issues were considered and denied on their merits.  The record reflects the
     following colloquy with the Court:
     "The Court:  I suppose the first issue that is raised is that CCP 425.14
     is unconstitutional.
     "Ms. Plevin:  Yes, Sir.
     "The Court:  I am not in a position to declare 425.14 unconstitutional.
     The Legislature deemed in its wisdom appropriate to legislate and that's
     what they did when they enacted 425.14.
     "As far as that claim is concerned, that does not sway the court.
     "Ms. Plevin:  May I ask, are you ruling then as to the issue regarding the
     constitutionality of 425.14 both on the 7th amendment issue and the 1st
     Amendment issue?
     "The Court:  Yes, you can take that to the bank and do whatever you want
     with it, but I am not in a position to make a determination that 425.14 is
     unconstitutional.  Either as violative of the 7th Amendment, the right to
     freedom of religion--what are the other constitutional claims that you base
     your arguments on?  Portions of the constitution?
     "Ms. Plevin:  Jury trial and establishment cause.
     "The Court:  Under both of those clauses, I am not going to declare 425.14
     unconstitutional.  You are just basing it on federal constitution?
     "Ms. Plevin:  California as well.
     "The Court:  All right."

      FN6. The trial court announced its decision, and the reasoning on which it
     was based, in the following terms:
     "The Court:  I've reviewed the somewhat conclusionary declarations of the
     Rowes' and I must admit I have reviewed the depositions on other occasions
     as well as now with respect to prior hearings.
     "And there is a marked contrast between that which is contained in the
     depositions with respect to these allegations as far as claims for punitive
     damages are concerned, claims for punitive damages are concerned.
     "There is quite a disparity between that which is in the declarations and
     that which is in the depositions, and leaves me with a view that--I have to
     have before me in order to grant relief under section 425.14, I have
     to have, in my view, clear and convincing proof, unequivocal, the kind of
     proof that will leave no substantial doubt.
     "The kind of proof that is sufficiently strong to command the unhesitating
     assertion of every reasonable mind that indeed there was this despicable
     conduct that would call for the issue of punitive damages to be placed
     before the jury.
     "I have a hard time in just reviewing the affidavits alone, concluding that
     the information there rises to the level of convincing the court by clear
     and convincing evidence that there was fraud, oppression, malice, of the
     quantity that would warrant adding on the punitive damages claim.  There is
     a doubt.
     "Therefore, I'm going to deny the motion for leave to allow the prayer for
     punitive damages based upon that view...."  (Emphasis added.)

  *1718 Rowe then brought the instant petition for writ of mandate.  We
 issued an **629 alternative writ and set the matter for hearing.
                                ISSUES PRESENTED
  Rowe asserts that the trial court's order, which prevented the pleading of any
 punitive damage claim, resulted from the operation of section 425.14, which
 Rowe claims is unconstitutional.  Therefore, Rowe argues, issuance of a writ of
 mandate compelling the trial court to vacate its order is warranted.  Rowe
 asserts that section 425.14 is unconstitutional on two grounds:  first, it
 requires the trial court to weigh evidence and decide the issue of entitlement
 to punitive damages, thus depriving Rowe of the constitutionally protected
 right to a jury trial;  and second, it creates an impermissible benefit for
 religious organizations and thus violates the establishment clause of the First
 Amendment.
  We discuss each of these claims in turn.
                                   DISCUSSION
  1. Section 415.14 Does Not Impair the Right to a Jury Trial.
  [1] Article I, section 16 of the California Constitution provides in
 pertinent part, "Trial by jury is an inviolate right and shall be secured to
 all,...." [FN7]  "In California, the constitutional right to a jury trial in
 civil cases is coextensive with the right as it existed under the common law of
 *1719 England in 1850, when the California Constitution was adopted.
 [Citation.]  ' "The right has always been regarded as sacred and has been
 jealously guarded by the courts.  [Citation.]" '  [Citation.]  It is the
 function of the jury to determine questions of fact.  [Citations.]"  (Hung
 v. Wang (1992) 8 Cal.App.4th 908, 927, 11 Cal.Rptr.2d 113.)

      FN7. Rowe also relied in the trial court upon the Seventh Amendment to the
     United States Constitution.  However, the Seventh Amendment only guarantees
     a federal right to a jury trial in civil cases and is not binding on the
     states.  (Jehl v. Southern Pacific Co. (1967) 66 Cal.2d 821, 827, 59
     Cal.Rptr. 276, 427 P.2d 988.)  Therefore, we confine our discussion to the
     impact of the provisions of the California Constitution.

  [2][3] There is no question or dispute in this case that the claims asserted
 by Rowe, including the claim for punitive damages, are of the type to which the
 jury trial right attaches. [FN8]  The question which we must address is
 whether section 425.14 in any way impairs that right.  If we construe the
 statute to require the trial judge to weigh the evidence on both sides and only
 permit the filing of a claim for punitive damages if the court finds that Rowe
 will prevail, then Rowe's jury right would be clearly violated.

      FN8. The resolution by jury of punitive damage claims was firmly a part of
     the common law by the time of the adoption of the California Constitution.
     As the United States Supreme Court recently put it, " 'It is a well-
     established principle of the common law, that in actions of trespass and
     all actions on the case for torts, a jury may inflict what are called
     exemplary, punitive or vindictive damages upon a defendant, having in view
     the enormity of his offense rather than the measure of compensation to the
     plaintiff....  [P] This has always been left to the discretion of the jury,
     as the degree of punishment to be thus inflicted must depend on the
     peculiar circumstances of each case.'  [Citation.]"  (Pacific Mut. Life
     Ins. Co. v. Haslip (1991) 499 U.S. 1, ---- [111 S.Ct. 1032, 1042, 113
     L.Ed.2d 1], quoting from Day v. Woodworth (1852) 54 U.S. (13 How.) 363,
     371, 14 L.Ed. 181.)

                           a. Section 425.14 Is Ambiguous
  [4] We look first to the plain language of the statute.  Where statutory
 language is clear and unambiguous there is no need for construction.  (Rojo
 v. Kliger (1990) 52 Cal.3d 65, 73, 276 Cal.Rptr. 130, 801 P.2d 373.)  The
 critical statutory language here involved reads, "... the court may allow the
 filing of an amended pleading claiming punitive or exemplary damages on a
 motion by the party seeking the amended pleading and upon a finding, on the
 basis of the supporting and opposing affidavits presented, that the plaintiff
 has established evidence which substantiates that plaintiff will meet the clear
 and convincing standard of proof under section 3294 of the Civil Code."
 (Emphasis added.)
  Is this language clear and free from ambiguity?  We begin our analysis
 of that question by examining the nature of the burden which this imposes on a
 pleading party.  On the surface, it appears to be a different burden, if not a
 greater one, than that which is imposed by section 425.13 which contains a
 related pleading hurdle with respect to punitive damage claims **630 against
 health care providers.  That section provides in pertinent part, "...  The
 court *1720 may allow the filing of an amended pleading claiming punitive
 damages on a motion by the party seeking the amended pleading and on the basis
 of the supporting and opposing affidavits presented that the plaintiff has
 established that there is a substantial probability that the plaintiff will
 prevail on the claim pursuant to Section 3294 of the Civil Code."  (Emphasis
 added.) [FN9]  No citable decision has yet analyzed this pleading hurdle for
 clarity or meaning. [FN10]

      FN9. There are at least two other statutory provisions where the
     Legislature has created similar hurdles to the pleading or proof of
     particular claims.  Each uses language similar to s 425.13:
     (1) Civil Code section 1714.10, subdivision (a), where the term
     "reasonable probability" is utilized:
     "No cause of action against an attorney for a civil conspiracy with his or
     her client arising from any attempt to contest or compromise a claim or
     dispute, and which is based upon the attorney's representation of the
     client, shall be included in a complaint or other pleading unless the court
     enters an order allowing the pleading that includes the claim for civil
     conspiracy to be filed after the court determines that the party seeking to
     file the pleading has established that there is a reasonable probability
     that the party will prevail in the action...."  (Emphasis added.)
     The legislative history of Civil Code section 1714.10, subdivision (a),
     reveals that its similarity to section 425.13 is more than coincidental;
     it was patterned after that section.  (Hung v. Wang, supra, 8
     Cal.App.4th at p. 934, fn. 6, 11 Cal.Rptr.2d 113.)
     (2) Civil Code section 3295, subdivision (c), relating to restrictions
     on the pretrial discovery of a defendant's financial condition except upon
     a "substantial probability" showing:
     "No pretrial discovery by the plaintiff shall be permitted with respect to
     [evidence of defendant's "profits" from the alleged wrongful conduct or the
     defendant's "financial condition"] unless the court enters an order
     permitting such discovery pursuant to this subdivision....  [P] Upon motion
     by the plaintiff supported by appropriate affidavits and after a hearing,
     if the court deems a hearing to be necessary, the court may at any time
     enter an order permitting the discovery otherwise prohibited by this
     subdivision if the court finds, on the basis of the supporting and opposing
     affidavits presented, that the plaintiff has established that there is a
     substantial probability that the plaintiff will prevail on the claim
     pursuant to Section 3294...."  (Emphasis added.)

      FN10. In College Hospital Inc. v. Superior Court (Laura C.) (1993) 13
     Cal.App.4th 1193, 16 Cal.Rptr.2d 833, the court construed section 425.13 by
     applying the reasoning of the Hung court (see below) notwithstanding the
     slight difference in language utilized in Civil Code, section 1714.10,
     subdivision (a).  However, on May 13, 1993, the California Supreme Court
     granted review.

  However, similar language used in Civil Code section 1714.10 has recently
 been examined and found to be ambiguous.  (Hung v. Wang, supra, 8
 Cal.App.4th at p. 930, 11 Cal.Rptr.2d 113.)  More than one reasonable
 construction was possible for the language used in section 1714.10 which
 required a showing of "reasonable probability of success" before the pleading
 of a claim of civil conspiracy between an attorney and client would be
 allowed.  The court, noting that it was bound to adopt the construction which
 would save the statute from constitutional infirmity, stated:  "... [T]he
 legislative purpose of section 1714.10 was to eliminate frivolous
 allegations that attorneys have *1721 conspired with their clients.  This
 statutory purpose is served by a construction that requires a prefiling
 procedure to determine whether the proposed conspiracy pleading is legally
 sufficient, and whether it is supported by a sufficient prima facie showing of
 facts to sustain a favorable decision if the evidence submitted by the
 petitioner is credited.  If either of these requirements is not met, the
 petition must be denied;  if both are satisfied, it must be granted.  This is a
 determination of law, not of fact.  [Citation.]  So construed, the statute
 provides a vehicle to preclude frivolous allegations of conspiracy without
 subjecting the allegations to a fact adjudicative screen that would violate the
 jury clause."  (Id. at p. 931, 11 Cal.Rptr.2d 113.)  Thus, the demonstration
 of a "reasonable probability" of success requires only the exhibition of a
 prima facie case.
  While the "substantial probability" language of section 425.13 differs from
 Civil Code section 1714.10's use of the term "reasonable probability," it
 does not appear to so alter the pleader's burden as to compel a different
 analysis than that applied by the Hung court.  Certainly, the language
 utilized in section 425.13 is ambiguous in **631 the same way the phrase
 "reasonable probability" was found to be ambiguous in Hung. [FN11]  This
 conclusion necessarily influences our examination of section 425.14.

      FN11. As the court in Hung stated, "The phrase, 'a reasonable
     probability' may be taken to mean that the petitioner must show that he or
     she has a case that will survive a motion for nonsuit and that, if
     successful, will be supported by sufficient evidence to warrant affirmance
     on appeal.  This construction gives to the noun 'probability' its literal
     meaning as descriptive of the relative likelihood of an outcome.
     [Citation.]  The adjective 'reasonable' requires the petitioner to do more
     than demonstrate some chance of winning;  the petitioner must show that,
     given the evidence, he or she has a substantial case.  [P]  If the
     Legislature had intended to require a petitioner to not only show a
     cognizable case but also that it is a winning case, it would have been a
     simple matter to use language that would have conveyed that meaning
     unambiguously, or at least with greater clarity.  [Citations.]"  (8
     Cal.App.4th at p. 929, 11 Cal.Rptr.2d 113;  emphasis in the original.)

  The legislative history of section 425.14 demonstrates an intent on
 the part of the Legislature to impose a burden similar to that imposed by
 section 425.13.  As originally proposed, this legislation was an amendment to
 Civil Code section 3294 which barred the recovery of any punitive damages
 against a charitable organization, including a religious corporation.  (Sen.
 Bill No. 1 (1987-1988 Reg.Sess.).)  It was amended in the Senate, on January
 26, 1988, so as to incorporate charitable organizations into the recently
 enacted healthcare provider legislation (s 425.13).  The Senate passed this
 version.  It was in the Assembly, on August 26, 1988, where the present wording
 was adopted, where the attempt to integrate with the healthcare provider
 statute was dropped and a new section (s 425.14) was drafted.  This new
 language also narrowed the coverage of the statute from charitable
 organizations generally and limited it to religious corporations.  *1722 The
 legislation, as so modified, was approved by the Senate and was signed by the
 Governor on September 26, 1988.
  Rowe argues that the language, as finally approved, is free from ambiguity and
 can only be read to require that the trial judge make a factual finding that
 sufficient evidence has been presented to satisfy the clear and convincing
 burden of proof required of plaintiffs seeking punitive damages.  In other
 words, Rowe contends, the statute requires that the trial judge must first
 determine, from a review and weighing of supporting and opposing affidavits,
 that the plaintiff will win on the issue of punitive damages before a claim for
 such damages may be pled.  Such construction would most certainly invade Rowe's
 constitutional jury right.  (Hung v. Wang, supra, 8 Cal.App.4th at p. 927,
 11 Cal.Rptr.2d 113.)  Nonetheless, given the language used by the Legislature,
 this is certainly one reasonable way to construe the statute.
  However, as was the case with the statutory language examined in Hung, it
 is not the only reasonable construction.  The burden imposed is to produce
 sufficient evidence to "substantiate " that the plaintiff "will meet " the high
 standard of proof required for punitive damages.  This language can also be
 read to require only that the plaintiff demonstrate to the court's satisfaction
 that sufficient evidence exists to go to the jury on the issue of punitive
 damages.  That is, plaintiff has sufficient evidence, if credited, to meet the
 clear and convincing standard and the judge is unable to say that a reasonable
 jury could not find for the plaintiff under that standard of proof.  We
 therefore must conclude that this statute is ambiguous.
                        b. Construction of Section 425.14
  "Judicial doctrine governing construction of a law to avoid
 unconstitutionality is well settled.  If 'the terms of a statute are by fair
 and reasonable interpretation capable of a meaning consistent with the
 requirements of the Constitution, the statute will be given that meaning,
 rather than another in conflict with the Constitution.'  [Citations.]
 Consequently, '[i]f feasible within bounds set by their words and purposes,
 statutes should be construed to preserve their constitutionality.'
 [Citation.] "  (Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180,
 186, 185 Cal.Rptr. 260, 649 P.2d 902.)  "This follows from the presumption that
 the legislative body intended **632 to enact a valid statute, ...
 [Citations.]  The United States Supreme Court has explained that the rule in
 favor of a construction which upholds a statute's validity 'plainly must mean
 that where a statute is susceptible of two constructions, by one of which grave
 and doubtful constitutional questions arise and by the other of which such
 questions are avoided, our duty is to adopt the latter.'  [Citations.]"
 (People v. Davenport (1985) 41 Cal.3d 247, *1723 264, 221 Cal.Rptr. 794,
 710 P.2d 861;  see Izazaga v. Superior Court (1991) 54 Cal.3d 356, 371-372,
 285 Cal.Rptr. 231, 815 P.2d 304.)
  [5][6] Applying these general rules, we are required to resolve any
 ambiguity in section 425.14 in a manner which is consistent, not
 inconsistent, with Rowe's constitutional right to a jury trial.  (Hung v.
 Wang, supra, 8 Cal.App.4th at p. 931, 11 Cal.Rptr.2d 113.)  We therefore must
 read the statute to require only that a plaintiff demonstrate the existence of
 sufficient evidence to establish a prima facie case for punitive damages,
 having in mind the higher clear and convincing standard of proof.  In the words
 of the Hung court, it is only necessary that plaintiff provide "a sufficient
 prima facie showing of facts to sustain a favorable decision if the evidence
 submitted is credited."  (8 Cal.App.4th at p. 931, 11 Cal.Rptr.2d 113.)  The
 trial court is not required to make any factual determination or to become
 involved in any weighing process beyond that necessarily involved in deciding
 whether a prima facie case for punitive damages exists.  Once the court
 concludes that such a case can be presented at trial it must permit the
 proposed amended pleading to be filed.  If it concludes that no such case
 exists, then it properly rejects the proposed pleading amendment.  In making
 this judgment, the trial court's consideration of the defendant's opposing
 affidavits does not permit a weighing of them against the plaintiff's
 supporting evidence, but only a determination that they do not, as a matter of
 law, defeat that evidence.
  This construction not only avoids obvious unconstitutionality, but is
 consistent with the intent of the Legislature.  The legislative history [FN12]
 clearly demonstrates that the statute's purpose is to protect religious
 organizations from the expense of defending against punitive damage claims for
 which a plaintiff can show no likelihood of success. [FN13]

      FN12. In compliance with Evidence Code sections 455 and 459 we
     advised counsel prior to oral argument that we intended to take judicial
     notice of the legislative history of section 425.14.  Counsel were given
     an opportunity to provide relevant information regarding such history both
     at oral argument and by post-argument letter briefs which have been
     received and considered.

      FN13. In the records of both the Senate, where the bill originated, and in
     the Assembly, where the final amendments were made, the same statement of
     purpose is repeatedly reflected, "[T]he primary purpose of this bill is to
     protect religious organizations from what some individuals consider to be
     unjustifiably large punitive damage awards.  This bill eliminates the
     immediate threat of a large punitive damage award by erecting a 'pleading
     hurdle,' namely, the requirement that some likelihood of success be
     demonstrated to the court as a condition of pleading punitive damages.  Of
     course, this bill does nothing to limit the actual award of punitive
     damages once a court has granted leave to amend the complaint.  [P] In this
     regard, the change enacted last year in SB 241 (Lockyer), in which the
     standard of proof for punitive damages was raised from preponderance of the
     evidence to clear and convincing evidence, will do more to control
     'excessive' punitive damage awards."  (Third Reading Analysis of Sen. Bill
     1.  Cf. Analysis of Senate Bill 1 prepared for the Assembly Committee on
     Judiciary, Subcommittee on the Administration of Justice;  emphasis added.)

  The imposition of such a pre-pleading burden does not impair Rowe's right to a
 jury trial.  The decision which the trial judge is required to *1724 make
 under this statute is substantially the same as in the case of a summary
 judgment motion.  The only distinction is that under section 425.14 the
 burden is on the plaintiff to sustain the proposed pleading while in other
 cases, where the plaintiff does not have such a statutory pleading hurdle, a
 defendant's summary judgment motion imposes the burden on the defendant to
 defeat plaintiff's claim.  (s 437c, subd. (n)(2);  Torres v. Reardon (1992)
 3 Cal.App.4th 831, 836, 5 Cal.Rptr.2d 52.)  However, merely reversing
 **633 that burden does not involve deprivation of a jury right.
  The burden imposed on a plaintiff by this legislation is very similar to that
 imposed on a plaintiff who responds to a summary judgment under the Federal
 Rules of Civil Procedure;  and that burden has been upheld against claims that
 it violated the federal right to a jury trial under the Seventh Amendment.
 (Johnston v. IVAC Corp. (Fed.Cir.1989) 885 F.2d 1574, 1577;  Etalook v.
 Exxon Pipeline Co. (9th Cir.1987) 831 F.2d 1440, 1446-1447;  see also Hung
 v. Wang, supra, 8 Cal.App.4th at p. 932, 11 Cal.Rptr.2d 113.)  This conclusion
 is not altered by the fact that the pretrial threshold is the heightened "clear
 and convincing" standard required for proof of entitlement to punitive damages.
  When a motion for summary judgment is made in a case where the
 plaintiff's claim carries a clear and convincing burden of proof, the evidence
 and all inferences which can reasonably be drawn therefrom must meet that
 higher standard.  (Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 254-
 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202, 216;  Reader's Digest Assn. v.
 Superior Court (1984) 37 Cal.3d 244, 252, 208 Cal.Rptr. 137, 690 P.2d 610;
 Miller v. Nestande (1987) 192 Cal.App.3d 191, 196, 237 Cal.Rptr. 359.)  As
 the United States Supreme Court put it, "... in ruling on a motion for summary
 judgment, the judge must view the evidence presented through the prism of the
 substantive evidentiary burden.... [P]  Our holding that the clear-and-
 convincing standard of proof should be taken into account in ruling on summary
 judgment motions does not denigrate the role of the jury.  It by no means
 authorizes trial on affidavits.  Credibility determinations, the weighing of
 the evidence, and the drawing of legitimate inferences from the facts are jury
 functions, not those of a judge, whether he is ruling on a motion for summary
 judgment or for a directed verdict."  (Anderson v. Liberty Lobby, Inc.,
 supra, 477 U.S. at pp. 254-255, 106 S.Ct. at p. 2513, 91 L.Ed.2d at pp. 215-
 216.)  If the federal summary judgment procedure does not impinge on the right
 to a jury trial, then section 425.14, which imposes no greater burden on a
 state plaintiff, likewise does not.
                               *1725 c. Conclusion
  We thus conclude that there is no invasion of Rowe's right to a jury trial;
 and we therefore reject the contention that section 425.14 is
 unconstitutional as an infringement of that right.  That does not, however,
 conclude our examination of this objection to the trial court's ruling.  We
 also have to determine, on the record before us, whether the trial court
 properly found that Rowe had failed to demonstrate the existence of a prima
 facie case.
  However, before we can reach that issue, we must address Rowe's second
 constitutional argument:  that section 425.14 violates the Establishment
 Clause of the First Amendment of the United States Constitution.  Rowe contends
 that the statute provides a unique benefit to religious organizations and
 imposes a unique burden upon their adverse parties, in the absence of a
 legitimate secular purpose for doing either.
  2. Section 425.14 Does Not Violate the Establishment Clause of the First
 Amendment.
  The religion clauses of the First Amendment forbid the making of laws
 "respecting an establishment of religion, or prohibiting the free exercise
 thereof."  Commonly referred to as the Establishment and Free Exercise Clauses,
 they together permit and require that government maintain a "benevolent
 neutrality which will permit religious exercise to exist without sponsorship
 and without interference."  (Walz v. Tax Commission (1970) 397 U.S. 664,
 669, 90 S.Ct. 1409, 1412, 25 L.Ed.2d 697.)
  [7] The "benevolent neutrality" required by the First Amendment involves a
 delicate balance between the avoidance of sponsorship on the one hand and
 interference on the other.  The United States Supreme Court has noted that the
 two religion clauses exist in "tension" with one another (Thomas v. Review
 Bd. Ind. Empl. Sec. Div. (1981) 450 U.S. 707, 719, 101 S.Ct. 1425, 1432, 67
 L.Ed.2d 624;  see also Wisconsin **634 v. Yoder (1972) 406 U.S. 205, 220-
 221, 92 S.Ct. 1526, 1536, 32 L.Ed.2d 15) and has "struggled to find a neutral
 course between [them], both of which are cast in absolute terms, and either of
 which, if expanded to a logical extreme, would tend to clash with the other."
 (Walz v. Tax Commission, supra, 397 U.S. at pp. 668-669, 90 S.Ct. at pp.
 1411.)
  The religion clauses are, of course, in harmony to the extent that a law
 which "establishes" one religious view inevitably tends to "prohibit the free
 exercise" of others.  (See Sands v. Morongo Unified School District (1991)
 53 *1726 Cal.3d 863, 870, 281 Cal.Rptr. 34, 809 P.2d 809.)  However, the two
 clauses come into conflict when secular laws, although neutral as to religion
 in their intent, nonetheless in some manner impair the free exercise of
 religion.  If the impairment is severe, the Free Exercise clause may be
 violated.  (Hobbie v. Unemployment Appeals Commission (1987) 480 U.S. 136,
 146, 107 S.Ct. 1046, 1052, 94 L.Ed.2d 190;  Wisconsin v. Yoder, supra, 406
 U.S. at p. 220, 92 S.Ct. at p. 1535.)  Yet, exemptions from the ordinary
 requirements of the law may, if they are overly generous to religion, be
 subject to attack as "establishing" the religions exempted.  (Texas Monthly,
 Inc. v. Bullock (1989) 489 U.S. 1, 15, 109 S.Ct. 890, 899, 103 L.Ed.2d 1;
 Estate of Thornton v. Caldor, Inc. (1985) 472 U.S. 703, 710, 105 S.Ct. 2914,
 2918, 86 L.Ed.2d 557.)
  [8][9][10] The Establishment Clause, which is made applicable to the states
 through the Fourteenth Amendment (Everson v. Board of Education (1947) 330
 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711), was intended to protect against
 three main evils:  (1) sponsorship (2) financial support of religion by the
 civil government and (3) active involvement of the sovereign in religious
 activity.  (Lemon v. Kurtzman (1971) 403 U.S. 602, 612, 91 S.Ct. 2105, 2111,
 29 L.Ed.2d 745;  Walz v. Tax Commission, supra, 397 U.S. at p. 668, 90 S.Ct.
 at p. 1411.)  However, the Establishment Clause has not been broadly applied to
 prohibit the grant to a religious organization of every possible benefit.  For
 example, such a grant is permissible, if it meets the three-prong test set out
 in Lemon v. Kurtzman, supra, 403 U.S. 602, 91 S.Ct. 2105.  Under Lemon, a
 valid benefit grant must (1) have a valid secular purpose, (2) not have a
 primary effect of advancing religion or any particular religious sect, and (3)
 not foster excessive government entanglement in religion.  (403 U.S. at pp.
 612-613, 91 S.Ct. at pp. 2111.)
  [11] Within such limitations, it has long been recognized that the
 government may, and sometimes must, make specific "accommodations" of religious
 needs of the people, and that it may do so without violating the Establishment
 Clause.  (Corporation of Presiding Bishop v. Amos (1987) 483 U.S. 327, 334-
 335, 107 S.Ct. 2862, 2868, 97 L.Ed.2d 273;  Zorach v. Clauson (1952) 343
 U.S. 306, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954;  see generally, McConnell,
 Accommodation of Religion, (1986) 1985 S.Ct.Rev. 1-59.)  The validity of any
 particular benefit to religion depends upon whether the benefit constitutes
 such an "accommodation" of religion or instead is an impermissible
 "advancement."  Rowe, of course, argues that section 425.14 impermissibly
 advances religion.  In particular, Rowe contends the statute suffers from the
 same constitutional defect as a statute found invalid by the United States
 Supreme Court in Texas Monthly, Inc. v. Bullock, supra, 489 U.S. 1, 109
 S.Ct. 890.
  *1727 In Texas Monthly, the Court struck down a Texas statute
 which granted an exemption from its sales tax for religious publications
 distributed by religious faiths and consisting of religious teachings or sacred
 religious texts.  Justice Brennan, writing for the three-member plurality,
 stated the basis for overturning the statute as follows:  "[W]hen government
 directs a subsidy exclusively to religious organizations that is not required
 by the Free Exercise Clause and that either burdens nonbeneficiaries markedly
 or cannot reasonably be seen as removing a significant state-imposed deterrent
 to the free exercise of religion, as Texas has done ..., it 'provides
 unjustifiable rewards of assistance to religious organizations' and cannot
 but **635 'conve[y] a message of endorsement' to slighted members of the
 community.  [Citation.]  This is particularly true where, as here, the subsidy
 is targeted at writings that promulgate the teachings of religious faiths."
 (Texas Monthly, Inc. v. Bullock, supra, 489 U.S. at p. 15, 109 S.Ct. at p.
 900;  emphasis in the original.)
  Rowe argues that section 425.14 violates the Establishment Clause by
 providing a unique benefit to religious organizations, as did the statute
 overturned in Texas Monthly, and by imposing a unique burden upon others,
 again as did the statute in Texas Monthly.  Rowe contends such circumstances
 prove the statute is intended to, and does, sponsor and financially support
 religion, thereby advancing it.
  [12][13] For the reasons which we discuss below, we disagree and conclude
 section 425.14 is a reasonable accommodation of religion, which passes all
 three of the Lemon criteria and which accordingly serves the interests
 embodied in the Free Exercise Clause, without sacrificing those represented by
 the Establishment Clause.  However, in reaching this conclusion we must
 emphasize that while there can be little doubt that the Lemon criteria are
 the proper standard to be applied (Sands v. Morongo Unified School Dist.,
 supra, 53 Cal.3d at pp. 871-872, 281 Cal.Rptr. 34, 809 P.2d 809), it is also
 clear that where the subject is legislation such as section 425.14, which
 seeks to advance free exercise values, a rigid application of Lemon is not
 appropriate.  (Duffy v. State Personnel Bd. (1991) 232 Cal.App.3d 1, 11, 283
 Cal.Rptr. 622.)
  As the court in Duffy put it, "Legislation exempting religious observers
 from generally applicable government obligations would seldom, if ever, pass
 the 'purpose' and 'effects' prongs of the Lemon test since by definition,
 such legislation has a religious purpose and effect in promoting the free
 exercise of religion.  [Citation.]  On the other hand, judicial deference to
 all legislation that purports to facilitate the free exercise of religion would
 completely vitiate the establishment clause since any statute pertaining to
 religion can be viewed as accommodating free exercise rights...."  (Ibid.)
 *1728 The question which we address is whether section 425.14 falls
 within the limits imposed by the establishment clause on voluntary government
 efforts to facilitate the free exercise of religion when such exercise is
 burdened by government itself.  With that as a preface, we turn to an
 application of the three Lemon criteria. [FN14]

      FN14. As will be apparent from the following discussion, there is
     considerable overlap and interdependence between the "secular purpose" and
     "primary effect" criteria set out in Lemon.  Indeed, Justice O'Connor,
     concurring in Wallace v. Jaffree (1985) 472 U.S. 38, 105 S.Ct. 2479, 86
     L.Ed.2d 29, appears to call for the merger of these two tests.  At least
     that is the view of one California court.  (Duffy v. State Personnel
     Bd., supra, 232 Cal.App.3d at pp. 11-12, 283 Cal.Rptr. 622.)  In Duffy,
     the court noted that even if recognition is given to the fact that a
     particular governmental act advances religion, it is nonetheless necessary
     "to separate those benefits to religion that constitutionally accommodate
     the free exercise of religion from those that provide unjustifiable awards
     of assistance to religious organizations.  In so doing the inquiry is
     'whether government's purpose is to endorse religion and whether the
     statute actually conveys a message of endorsement.'  [Citation.]  Under
     this approach, the 'purpose' inquiry does not stand as an independent test,
     capable of striking down government acts on its own.  Rather, it is an
     additional, subordinate index of unconstitutionality.  To ascertain whether
     the statute conveys a message of endorsement, the relevant issue is how it
     would be perceived by an objective observer, acquainted with the text,
     history, and implementation of the government act.  [Citation.]  [P] The
     merger of the 'purpose' and 'effects' tests in this way reduces the
     likelihood of an erroneous conclusion about legislative motive, and
     eliminates the danger that a rigidly applied 'purpose' test alone might
     invalidate laws whose effects are purely secular or advance free exercise
     values.  It also helps explain cases where the Supreme Court has upheld
     long-established state practices that began in religion, such as Sunday
     closing laws, [citation], and practices that acknowledge religion such as
     legislative prayers [citation], and state-owned creches [citations.]."

                           a. Secular Legislative Purpose
  As already noted, Rowe argues section 425.14 has no legitimate
 secular purpose and thus is not simply a permissible "accommodation" of
 religion, but rather is a constitutionally prohibited "advancement."
 **636 The primary basis for Rowe's argument is that only religious
 organizations are benefited.  Rowe relies primarily upon Texas Monthly, Inc.
 v. Bullock, supra, 489 U.S. 1, 109 S.Ct. 890, as authority.
  In Texas Monthly, the circumstance that the subsidy was directed
 exclusively to religious organizations and that it was not required by the Free
 Exercise Clause formed a substantial part of the plurality's rationale for
 finding Texas's sales tax exemption for religious publications
 unconstitutional.  (Texas Monthly, Inc. v. Bullock, supra, 489 U.S. at p.
 15, 109 S.Ct. at p. 899.)  Rowe contends section 425.14 parallels the Texas
 exemption in this respect.
  *1729 Section 425.14 does not, of course, direct an actual or
 constructive subsidy to religious organizations. [FN15]  However, it does
 afford a procedural advantage which may result in a saving of legal costs, and
 which, in some ways is a benefit analogous to a subsidy.  Further, section
 425.14 admittedly is directed exclusively to religious organizations.

      FN15. We also note that section 425.14 differs in one other very
     significant respect from the statute invalidated in Texas Monthly.  The
     statute in that case did not merely exempt religious organizations from a
     tax;  it exempted religious publications from a tax, and did so only if
     such publications consisted wholly of "writings promulgating the teaching
     of the faith" or of "writings sacred to a religious faith."  (489 U.S.
     at p. 5, 109 S.Ct. at p. 894.)  The circumstance that the Texas statute
     gave preferential treatment to the publication of religious messages was
     the only circumstance that a majority of the court found violative of the
     First Amendment.

  [14] However, those circumstances, without more, do not rebut the existence
 of a secular purpose.  Of course, a valid secular purpose is more easily
 established where legislation grants a benefit to a broad class of institutions
 and organizations, which is so defined that "it can be fairly concluded that
 religious institutions could be thought to fall within [its] natural
 perimeter."  (Walz v. Tax Commission, supra, 397 U.S. at p. 696, 90 S.Ct. at
 p. 1425 (conc. opn. of Harlan, J.);  see also Texas Monthly, Inc. v.
 Bullock, supra, 489 U.S. at p. 17, 109 S.Ct. at p. 900 (lead opn. of Brennan,
 J.).)  Nonetheless, such a broad class is not essential to establish a proper
 purpose for a benefit to religious organizations, and it is not required that
 benefits to religion "come packaged with benefits to secular entities."
 (Corporation of Presiding Bishop v. Amos, supra, 483 U.S. at p. 338, 107
 S.Ct. at p. 2869;  see also Walz v. Tax Commission, supra, 397 U.S. at p.
 674, 90 S.Ct. at p. 1414.) [FN16]  Thus, a violation of the Establishment
 Clause is not established by the mere circumstance that section 425.14
 protects only religious organizations.  (Corporation of Presiding Bishop v.
 Amos, supra, 483 U.S. at pp. 335-336, 107 S.Ct. at p. 2868.)

      FN16. Even the plurality in Texas Monthly, supra, which found the
     challenged statute unconstitutional in large part because "it lack[ed]
     sufficient breadth," stopped short of finding invalid all benefits that
     are (1) conferred exclusively upon religious groups, or upon individuals
     because of their religious beliefs, and (2) not required by the Free
     Exercise Clause.  The Texas Monthly plurality noted that previous
     decisions of the Court had upheld such exclusive benefits to religion as
     long as they either (1) did not impose substantial burdens on
     nonbeneficiaries, or (2) were designed to alleviate significant
     governmental intrusions upon the free exercise of religion.  (Texas
     Monthly, Inc. v. Bullock, supra, 489 U.S. at p. 18, fn. 8, 109 S.Ct. at p.
     901, fn. 8.)

  [15] Nor does the requirement of a secular purpose amount to a requirement
 that the law's purpose be unrelated to religion.  (Corporation of Presiding
 Bishop v. Amos, supra, 483 U.S. at p. 335, 107 S.Ct. at p. 2868.)  To the
 contrary, although "advancement" of religion by the government is prohibited
 (Lemon v. Kurtzman, supra, 403 U.S. at p. 612, 91 S.Ct. at p. 2111),
 *1730 the Constitution does not require the government to show "a callous
 indifference to religious groups."  (Zorach v. Clauson, supra, 343 U.S. at
 p. 314, 72 S.Ct. at p. 684.  See also Corporation of Presiding Bishop v.
 Amos, supra, 483 U.S. at p. 335, 107 S.Ct. at p. 2868).)
  [16] To facilitate the "benevolent neutrality" toward religion the
 government may make "accommodations" to religion without violating the
 Establishment Clause.  The Supreme Court has found that a number of such
 "accommodations" **637 are not prohibited.  (See, e.g., Corporation of
 Presiding Bishop v. Amos, supra, 483 U.S. at pp. 334-335, 107 S.Ct. at p. 2868
 [federal statute exempting employers who are religious organizations from equal
 employment requirements of the Civil Rights Act of 1964];  Zorach v.
 Clauson, supra, 343 U.S. at p. 315, 72 S.Ct. at p. 684 [city ordinance
 providing "released time" for public school students to attend religious
 instruction];  Selective Draft Law Cases (1918) 245 U.S. 366, 389-390, 38
 S.Ct. 159, 165, 62 L.Ed. 349 [exemption from combat service of persons whose
 religious tenets forbid it].)  Beyond finding that various benefits to religion
 are not prohibited by the Establishment Clause, the Supreme Court has
 affirmatively held that "[u]nder the Lemon analysis, it is a permissible
 legislative purpose to alleviate significant governmental interference with the
 ability of religious organizations to define and carry out their religious
 missions."  (Corporation of Presiding Bishop v. Amos, supra, 483 U.S. at p.
 335, 107 S.Ct. at p. 2868;  emphasis added.) [FN17]

      FN17. In so holding, the Supreme Court acknowledged that an express
     purpose of benefiting religious organizations is not, strictly speaking,
     "secular," even where the benefit can legitimately be characterized as an
     "accommodation."  (Corporation of Presiding Bishop v. Amos, supra, 483
     U.S. at p. 335, 107 S.Ct. at p. 2868.)  Lemon 's requirement of a
     secular purpose "does not mean that the law's purpose must be unrelated to
     religion."  (Ibid.)  In effect, the Court appears to have adopted the
     views expressed by Justice O'Connor in her concurrence in Wallace v.
     Jaffree, supra, 472 U.S. 38, 83, 105 S.Ct. 2479, 2503, 86 L.Ed.2d 29.  In
     her opinion, Justice O'Connor suggested that the "purpose" test under the
     Establishment Clause should be modified from the strict "secular" purpose
     test enunciated in Lemon to one which leaves room under the
     Establishment Clause for legislation which does not have a secular purpose
     in the ordinary sense of that term, but which serves the values embodied in
     the Free Exercise Clause.  Specifically, Justice O'Connor said:  "The
     solution to the conflict between the Religion Clauses lies ... in
     identifying workable limits to the government's license to promote the free
     exercise of religion....  On its face, the [Free Exercise] Clause is
     directed at government interference with free exercise.  Given that
     concern, one can plausibly assert that government pursues Free Exercise
     Clause values when it lifts a government-imposed burden on the free
     exercise of religion.  If a statute falls within this category, then the
     standard Establishment Clause test should be modified accordingly.  It is
     disingenuous to look for a purely secular purpose when the manifest
     objective of a statute is to facilitate the free exercise of religion by
     lifting a government-imposed burden.  Instead, the Court should simply
     acknowledge that the religious purpose of such a statute is legitimated by
     the Free Exercise Clause."  (472 U.S. at p. 83, 105 S.Ct. at p. 2504,
     conc. opn. of O'Connor;  emphasis added.)

  In Presiding Bishop, the Supreme Court upheld section 702 of the
 Civil Rights Act of 1964, as amended (42 U.S.C. s 2000e-1).  This section
 created *1731 a statutory exemption of religious organizations from
 provisions of Title VII of that Act which otherwise prohibit discrimination in
 employment on the basis of religion.  (Id. at pp. 339-340, 107 S.Ct. at p.
 2870.)  As originally enacted, section 702 of the Civil Rights Act exempted
 only the religious activities of such organizations from the general
 prohibition.  However, in 1972, the statute was amended to exempt all
 activities of such organizations.  (Presiding Bishop, supra, 483 U.S. at p.
 332, fn. 9, 107 S.Ct. at p. 2866, fn. 9.)  The District Court concluded the
 amendment's purpose was the legitimate secular purpose of minimizing
 governmental "interfer[ence] with the decision-making process in religions."
 (Id. at p. 332, 107 S.Ct. at p. 2866, quoting from the opinion of the
 District Court.) [FN18]

      FN18. However, we note that the District Court found the statute invalid
     under the Establishment Clause, as having the primary effect of advancing
     religion.  (Id. at p. 333, 107 S.Ct. at p. 2866.)

  The Supreme Court agreed with the District Court's conclusion:  "We may assume
 for the sake of argument that the pre-1972 exemption was adequate in the sense
 that the Free Exercise Clause required no more.  Nonetheless, it is a
 significant burden on a religious organization to require it, on pain of
 substantial liability, to predict which of its activities a secular court will
 consider religious.  The line is hardly a bright one, and an organization might
 understandably be concerned that a judge would not understand its religious
 tenets and sense of mission.  Fear of potential liability might affect the way
 an organization carried out **638 what it understood to be its religious
 mission."  (Presiding Bishop, supra, at p. 336, 107 S.Ct. at p. 2868.)
  The governmental interference with religion which was intended to be
 alleviated by section 702 of the Civil Rights Act--a clear governmental
 restriction on religious organizations' discretion in hiring--was particularly
 obvious and direct.  By comparison, the interference to be alleviated by
 section 425.14 is perhaps less obvious, but it is no less real and no less
 burdensome on religion.  Civil Code section 3294, by recognizing a cause of
 action for exemplary and punitive damages, effectively puts the power and
 authority of the state and its courts at the disposal of private parties to
 prosecute claims which may or may not be meritorious, and if such claims are
 proven meritorious, to enforce them.  The requirement that the parties sued
 must either appear and defend against punitive damage claims or risk a
 potentially immense forfeiture thus constitutes a palpable and material state-
 imposed burden. [FN19]

      FN19. This conclusion finds an analogy in the reasoning of the United
     States Supreme Court in Shelley v. Kraemer (1948) 334 U.S. 1, 68 S.Ct.
     836, 92 L.Ed. 1161 and in the recently decided Edmonson v. Leesville
     Concrete Co., Inc. (1991) 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660.
     In Shelley, it will be remembered, the Supreme Court held there is
     "state action" within the meaning of the Fourteenth Amendment where the
     state courts are utilized by private litigants to enforce racially
     restrictive covenants regarding the use and occupancy of real property.
     (334 U.S. at p. 20, 68 S.Ct. at p. 845.)  In Edmonson, the Court held
     there is "state action" when a private litigant exercises peremptory
     challenges to strike jurors in a civil case on grounds of racial or group
     bias.  (--- U.S. at pp. ---- - ----, 111 S.Ct. at pp. 2082-2087.)

  [17] Under well-established principles of Establishment Clause analysis, the
 government can legitimately relieve religious institutions of this
 *1732 burden, because it can rationally be seen as posing a significant
 deterrent to the free exercise of religion. [FN20]  Just as the fear of
 litigation under Title VII might improperly affect a religious organization's
 hiring practices, the fear of being called before a court to defend against
 unfounded claims for punitive damages might likewise improperly affect the way
 in which a religious organization carries out what it views as its religious
 mission.  The free exercise of religion is thus served, and the prohibition
 against establishing religion is not violated, by legislation designed to
 mitigate the potentially chilling effects upon the practices of religious
 groups resulting from the threat of litigation over unfounded punitive damages
 claims.  The statute endeavors to insulate religious organizations from the
 threat of being required to defend against insupportable punitive damages
 claims--a potentially significant state-imposed burden upon religious
 practices.  This is a reasonable goal, and seeking to achieve it is a
 legitimate secular purpose.  (Corporation of Presiding Bishop v. Amos,
 supra, 483 U.S. at p. 335, 107 S.Ct. at p. 2868.)

      FN20. Although laws discriminating among religions are subject to strict
     scrutiny, laws which afford a uniform benefit to all religions are upheld
     if rationally related to the furtherance of a legitimate end
     (Corporation of the Presiding Bishop, supra, 483 U.S. at p. 339, 107
     S.Ct. at p. 2870) and are found invalid only if "wholly motivated by an
     impermissible purpose."  (Bowen v. Kendrick (1988) 487 U.S. 589, 602,
     108 S.Ct. 2562, 2570, 101 L.Ed.2d 520;  Wallace v. Jaffree, supra, 472
     U.S. at p. 56, 105 S.Ct. at p. 2489.)

                                 b. "Primary Effect"
  Under the second Lemon test, the law in question must have a
 "principal or primary effect ... that neither advances nor inhibits
 religion."  (403 U.S. at p. 612, 91 S.Ct. at p. 2111.)  Here, the inquiry is
 whether, irrespective of the government's intent, the practice in question
 "advances" religion.
  What constitutes an improper "advancement" of religion has been variously
 characterized. [FN21]  Generally, the court has invalidated **639 legislation
 which either (1) burdens others while benefiting religion (Estate of
 Thornton v. *1733 Caldor, Inc., supra, 472 U.S. at pp. 708-709, 105 S.Ct. at
 p. 2917;  (2) compels participation in religious observances (Lee v.
 Weisman (1992) 505 U.S. 577, ----, 112 S.Ct. 2649, 2661, 120 L.Ed.2d 467, 488;
 or (3) endorses particular religious ideas or endorses religious ideas
 generally (Epperson v. Arkansas (1968) 393 U.S. 97, 106-107, 89 S.Ct. 266,
 272, 21 L.Ed.2d 228).  By contrast, the Supreme Court has found legislation to
 effect a reasonable "accommodation" to religion where the legislation imposed
 no substantial burdens upon nonbeneficiaries, while at the same time either
 allowing the adherents of particular religions to act according to their
 beliefs, or alleviating governmental intrusions that might significantly deter
 or chill conduct that is protected by the Free Exercise Clause.  (Texas
 Monthly, Inc. v. Bullock, supra, 489 U.S. at p. 18, fn. 8, 109 S.Ct. at p. 901,
 fn. 8.)

      FN21. In Corporation of the Presiding Bishop, supra, 483 U.S. 327, 107
     S.Ct. 2862, the majority stated that "[a] law is not unconstitutional
     simply because it allows churches to advance religion, which is their very
     purpose.  For a law to have forbidden 'effects' under Lemon it must be
     fair to say that the government itself has advanced religion through its
     own activities and influence."  (Corporation of Presiding Bishop v.
     Amos, supra, 483 U.S. at p. 337, 107 S.Ct. at p. 2869;  emphasis in the
     original.)  Concurring separately, Justice O'Connor criticized the
     majority's analysis as "obscur[ing] far more than enlighten[ing]" and
     instead, characterized an impermissible governmental "advancement" of
     religion as a benefit to a religious institution which provides
     "unjustifiable awards of assistance to religious organizations" or "conveys
     a message of endorsement" either of a particular religion or of religion
     generally.  (Id. at pp. 347-348, 107 S.Ct. at p. 2874, conc. opn. of
     O'Connor, J.)

  Without question, the threat of incurring legal expenses in the defense of
 unfounded claims for punitive damages constitutes a significant potential
 deterrent to the free exercise of religion.  Section 425.14 was enacted with
 the express intent of removing, or at least mitigating, that threat, and it
 plainly does so.  A plaintiff wishing to claim punitive damages against a
 religious organization must make a prima facie showing of merit before the
 claim can be pleaded or the organization required to answer.
  However, the requirement of such a showing does not burden non-beneficiaries
 markedly or compel participation in religious observances or endorse religious
 ideas or tenets.  Unlike a tax exemption for religious organizations, which has
 the effect of making the tax burden greater for those not exempt (Texas
 Monthly, Inc. v. Bullock, supra, 489 U.S. at p. 14, 109 S.Ct. at p. 899;
 Bob Jones University v. United States (1983) 461 U.S. 574, 591, 103 S.Ct.
 2017, 2028, 76 L.Ed.2d 157), or a requirement that employers accommodate the
 schedules of religiously observant employees (Estate of Thornton v. Caldor,
 Inc., supra, 472 U.S. at pp. 708-709, 105 S.Ct. at p. 2917), section
 425.14 imposes no burden upon defendants that are not religious organizations.
 Such defendants must respond to frivolous, as well as potentially meritorious,
 punitive damage claims, whether the same requirement applies to religious
 organizations or not.
  Nor does the statute unreasonably burden plaintiffs who do have legitimate
 punitive damage claims against religious organizations.  These plaintiffs need
 only make a showing of prima facie merit earlier in the course of litigation
 than plaintiffs with similar claims must do against other defendants.  Thus,
 section 425.14 leaves ultimately undisturbed both the rights of
 *1734 injured parties to enforce legitimate claims against religious
 organizations and the right of civil society to protect its citizens from
 oppression, fraud and malice, whether by religious sects or others.
               c. Excessive Government Entanglement With Religion
  With respect to the third and final Lemon criterion, it is obvious
 that section 425.14 does not foster excessive entanglement between religion
 and the state.  (Lemon v. Kurtzman, supra, 403 U.S. at p. 613, 91 S.Ct. at
 p. 2111).  If anything, section 425.14 minimizes involvement between the
 government and religious institutions by allowing religious institutions to
 refrain from responding in any manner to a claim for punitive damages until
 after the claimant has made the required statutory showing of merit.
                                  d. Conclusion
  [18] Section 425.14 was intended to, and does, relieve religious
 organizations of the need to respond to claims for punitive damages
 **640 unless and until a prima facie showing of merit has been made.  It has
 both the intent and the primary effect of freeing mosques, synagogues,
 churches, and religious organizations of all kinds from "a significant
 governmental interference with [their] ability to define and carry out their
 religious missions."  (Corporation of the Presiding Bishop v. Amos, supra,
 483 U.S. at p. 335, 107 S.Ct. at p. 2868.)  It thus constitutes a permissible
 "accommodation" of religion that is not inconsistent with the Establishment
 Clause and in fact nourishes the "benevolent neutrality" by government toward
 religion which is the ultimate aim of the First Amendment's two Religion
 Clauses considered together. [FN22]

      FN22. We do not reach or consider the issue of whether section 425.14
     might violate the guarantees of separation of church and state contained in
     the California Constitution.  (Cal. Const., art. I, s 4.)  While
     arguably Rowe raised the issue in the trial court (see fn. 5, ante ), it
     was not briefed or argued on appeal and therefore has been waived.
     (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 41, 210 Cal.Rptr. 762, 694 P.2d
     1134;  Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1267, fn.
     16, 284 Cal.Rptr. 18.)  Parenthetically, however, we note that as
     California's Establishment Clause is "virtually identical" to the one
     contained in the First Amendment (Sands v. Morongo, supra, 53 Cal.3d at
     p. 882, 281 Cal.Rptr. 34, 809 P.2d 809), our analysis and conclusion would
     doubtless not be different were the issue before us.  (See Duffy v.
     State Personnel Bd., supra, 232 Cal.App.3d at p. 9, 283 Cal.Rptr. 622.)

  3. The Court Subjected Rowe's Evidentiary Showing to an Improper Standard.
  As discussed in some detail above, we have construed section 425.14 to
 require Rowe to demonstrate the existence of sufficient evidence to establish a
 prima facie right to recover punitive damages.  That is, it is enough to show
 sufficient evidence to permit that claim to go to a jury under *1735 the
 clear and convincing standard.  Our review of the record strongly suggests that
 Rowe's showing was subjected to a much more stringent hurdle.
  Both counsel for Scientology and the trial court appeared to have read
 section 425.14 as requiring Rowe to actually prove, by clear and convincing
 evidence, a right to recover punitive damages.  Counsel argued that Rowe's
 evidence did "not satisfy [the] burden of establishing [the] claim for punitive
 damages by clear and convincing proof."  (See fn. 4, ante.)
  The trial court, in the announcement of its decision, indicated that it
 considered and apparently weighed all of the supporting and opposing evidence
 and found Rowe's evidence unpersuasive.  Specifically, the court stated:
 "... I have to have before me in order to grant relief under section
 425.14, I have to have, in my view, clear and convincing proof, unequivocal,
 the kind of proof that will leave no substantial doubt.  [P] The kind of proof
 that is sufficiently strong to command the unhesitating assertion of every
 reasonable mind that indeed there was this despicable conduct that would call
 for the issue of punitive damages to be placed before the jury.  [P] I have a
 hard time in just reviewing the affidavits alone, concluding that the
 information there rises to the level of convincing the court by clear and
 convincing evidence that there was fraud, oppression, malice, of the quantity
 that would warrant adding on the punitive damages claim.  There is a doubt.
 [P] Therefore, I'm going to deny the motion for leave to allow the prayer for
 punitive damages based upon that view...."
  [19][20] We can not review such comments without some concern as to
 whether the court had not in fact imposed upon Rowe a far heavier burden than
 either was intended by the Legislature or is permitted by the language of the
 statute if it is to pass constitutional muster.  Indeed, from the words used by
 the court, it appears likely that a standard was imposed on Rowe which required
 an evidentiary showing which demonstrated a winning case.  To the extent that
 we have any doubt in this regard, fairness and justice require us to return the
 matter to the trial court for reconsideration under the proper standard.
  It seems clear that, subject to the usual limitations on the amendment of
 pleadings prior to or during trial, a party seeking to comply with section
 425.14 should be able **641 to do so at any time when there is available
 sufficient evidence to make the required prima facie showing.  Therefore, a
 party should be free to renew a properly denied motion upon a subsequent and
 timely discovery of additional evidence.  That being the case, Rowe should be
 permitted the opportunity to supply such additional evidence as may be
 available to support the reconsidered application for leave to file an
 *1736 amended pleading.  Similarly, Scientology should be given an
 opportunity to supplement its opposition.
                                   DISPOSITION
  The alternative writ is discharged.  A peremptory writ shall issue directing
 the trial court to vacate its order of September 22, 1992, denying Rowe's
 motion to amend the complaint to allege claims for punitive damages and to
 conduct further proceedings consistent with this opinion.

  KLEIN, P.J., and HINZ, J., concur.

End of file...