This is an oldie but goodie CA appeal case.

I have included copy of the complete decision.

A Sea Org Member named Gene Allard tried to take the proper steps to
leave the SO in 1969, he was 'Fair Gamed" and wound up spending 21 days
in jail before charges were
dropped. He sued the Church of Scientology for malicious prosecution
and won.

COS then appealed, and all COS complaints about the original trial were
denied by the Calif Appeals Court except  excessive Punative Damages.
The judge allowed a reduction because it was clear that the jury's
animosity, for all that the church had done to Mr. Allard  influenced
award. Here is his summary in part, followed by a transcript of the

"award of punitive damages.

[12] Any party whose tenets include lying and cheating in order to
attack its "enemies" deserves the results of the risk which such
conduct entails. On the other hand, this conduct may have so enraged
the jury that the award of punitive damages may have been more the
result of [58 Cal.App.3d 453] feelings of animosity, rather than a
dispassionate determination of an amount necessary to assess defendant
in order to deter it from similar conduct in the future. In our view
the disparity between the compensatory damages ($50,000) and the
punitive damages ($250,000) suggests that animosity was the deciding
factor. Our reading of the decisional authority compels us to conclude
that we should reduce the punitive damages. We find $50,000 to be a
reasonable amount to which the punitive damages should be reduced. "

Below is the Church's appeal decision, which was denied on all points
but punitive damages
Allard v. Church of Scientology , 58 Cal.App.3d 439[Civ. No. 45562.
Court of Appeals of California, Second Appellate District, Division
Two. May 18, 1976.]
L=2E GENE ALLARD, Plaintiff, Cross-defendant and Respondent, v. CHURCH OF
SCIENTOLOGY OF CALIFORNIA, Defendant, Cross-complainant and Appellant

(Opinion by Beach, J., with Roth, P. J., and Fleming, J., concurring.)


Morgan, Wenzel & McNicholas, John P. McNicholas, Gerald E. Agnew, Jr.,
and Charles B. O'Reilly for Plaintiff, Cross-defendant and Respondent.

Levine & Krom, Meldon E. Levine, Murchison, Cumming, Baker & Velpmen,
Murchison, Cumming & Baker, Michael B. Lawler, Tobias C. Tolzmann and
Joel Kreiner for Defendant, Cross-complainant and Appellant.


Gene Allard sued the Church of Scientology for malicious prosecution.
Defendant cross-complained for conversion. A jury verdict and judgment
were entered for Allard on the complaint for $50,000 in compensatory
damages and $250,000 in punitive damages. Judgment was entered for
Allard and against the Church of Scientology on the cross-complaint.
Defendant-cross complainant appeals from the judgment.


The evidence in the instant case is very conflicting. We relate those
facts supporting the successful party and disregard the contrary
showing. (Nestle v. City of Santa Monica, 6 Cal.3d 920, 925-926 [101
Cal.Rptr. 568, 496 P.2d 480].)

In March 1969, L. Gene Allard became involved with the Church of
Scientology in Texas. He joined Sea Org in Los Angeles and was sent to
San Diego for training. While there, he signed a billion-year contract
agreeing to do anything to help Scientology and to help clear the
planet of the "reactive people." During this period he learned about
written policy directives that were the "policy" of the church,
emanating from L. Ron Hubbard, the founder of the Church of
Scientology. fn. 1 After training on the ship, respondent was assigned
to the Advanced Organization in Los Angeles, where he became the
director of disbursements. He later became the Flag Banking Officer.
[58 Cal.App.3d 444]

Alan Boughton, Flag Banking Officer International, was respondent's
superior. Only respondent and Boughton knew the combination to the safe
kept in respondent's office. Respondent handled foreign currency,
American cash, and various travelers' checks as part of his job.

In May or June 1969, respondent told Boughton that he wanted to leave
the church. Boughton asked him to reconsider. Respondent wrote a memo
and later a note; he spoke to the various executive officers. They told
him that the only way he could get out of Sea Org was to go through
"auditing" and to get direct permission from L. Ron Hubbard. Respondent
wrote to Hubbard. A chaplain of the church came to see him. Lawrence
Krieger, the highest ranking justice official of the church in
California, told respondent that if he left without permission, he
would be fair game and "You know we'll come and find you and we'll
bring you back, and we'll deal with you in whatever way is necessary."

On the night of June 7 or early morning of June 8, 1969, respondent
went to his office at the Church of Scientology and took several
documents from the safe. These documents were taken by him to the
Internal Revenue Service in Kansas City; he used them to allege
improper changes in the records of the church. He denies that any Swiss
francs were in the safe that night or that he took such Swiss francs.
Furthermore, respondent denies the allegation that he stole various
travelers' checks from the safe. He admitted that some travelers'
checks had his signature as an endorsement, but maintains that he
deposited those checks into an open account of the Church of
Scientology. There is independent evidence that tends to corroborate
that statement. Respondent, having borrowed his roommate's car, drove
to the airport and flew to Kansas City, where he turned over the
documents to the Internal Revenue Service.

Respondent was arrested in Florida upon a charge of grand theft.
Boughton had called the Los Angeles Police Department to report that
$23,000 in Swiss francs was missing. Respondent was arrested in
Florida; he waived extradition and was in jail for 21 days. Eventually,
the charge was dismissed. The deputy district attorney in Los Angeles
recommended a dismissal in the interests of justice. fn. 2 [58
Cal.App.3d 445]

Contentions on Appeal:

1=2E Respondent's trial counsel engaged in flagrant misconduct throughout
the proceedings below and thereby deprived appellant of a fair trial.

2=2E The verdict below was reached as a result of (a) counsel's
ascription to appellant of a religious belief and practices it did not
have and (b) the distortion and disparagement of its religious
character, and was not based upon the merits of this case. To allow a
judgment thereby achieved to stand would constitute a violation of
appellant's free exercise of religion.

3=2E Respondent failed to prove that appellant maliciously prosecuted him
and therefore the judgment notwithstanding the verdict should have been

4=2E The refusal of the trial court to ask or permit voir dire questions
of prospective jurors pertaining to their religious prejudices or
attitudes deprived appellant of a fair trial.

5=2E It was prejudicial error to direct the jury, in its assessment of
the malicious prosecution claim, to disregard evidence that respondent
stole appellant's Australian and American Express travelers' checks.

6=2E The order of the trial court in denying to appellant discovery of
the factual basis for the obtaining of a dismissal by the district
attorney of the criminal case People v. Allard was an abuse of
discretion and a new trial should be granted and proper discovery

7=2E Respondent presented insufficient evidence to support the award of
$50,000 in compensatory damages which must have been awarded because of
prejudice against appellant.

8=2E Respondent failed to establish corporate direction or ratification
and also failed to establish knowing falsity and is therefore not
entitled to any punitive damages.

9=2E Even if the award of punitive damages was proper in this case, the
size of the instant reward, which would deprive appellant church of
more [58 Cal.App.3d 446] than 40 percent of its net worth, is grossly
excessive on the facts of this case.

10. There was lack of proper instruction regarding probable cause. fn.


1=2E There was no prejudicial misconduct by respondent's trial counsel,
and appellant was not deprived of a fair trial.

Appellant claims that it was denied a fair trial through the
statements, questioning, and introduction of certain evidence by
respondent's trial counsel. Love v. Wolf, 226 Cal.App.2d 378 [38
Cal.Rptr. 183], is cited as authority.

We have reviewed the entire record and find appellant's contentions to
be without merit. Several of counsel's individual statements and
questions were inappropriate. However, there often were no objections
by counsel for appellant where an objection and subsequent admonition
would have cured any defect; or there was an objection, and the trial
court judiciously admonished the jury to disregard the comment. Except
for these minor and infrequent aberrations, the record reveals an
exceptionally well-conducted and dispassionate trial based on the
evidence presented.

As in Stevens v. Parke, Davis & Co., 9 Cal.3d 51, 72 [107 Cal.Rptr. 45,
507 P.2d 653], a motion for a new trial was made, based in part upon
the alleged misconduct of opposing counsel at trial. [1] What was said
in Stevens applies to the instant case. "'A trial judge is in a better
position than an appellate court to determine whether a verdict
resulted wholly, or in part, from the asserted misconduct of counsel
and his conclusion in the matter will not be disturbed unless, under
all the circumstances, it is plainly wrong.' [Citation.] From our
review of the instant record, we agree with the trial judge's
assessment of the conduct of plaintiff's counsel and for the reasons
stated above, we are of the opinion that defendant has failed to
demonstrate prejudicial misconduct on the part of such counsel."
(Stevens v. Parke, Davis & Co., supra, 9 Cal.3d at p. 72.)

2=2E The procedure and verdict below does not constitute a violation of
appellant's First Amendment free exercise of religion. [58 Cal.App.3d

[2] Appellant contends that various references to practices of the
Church of Scientology were not supported by the evidence, were not
legally relevant, and were unduly prejudicial. The claim is made that
the trial became one of determining the validity of a religion rather
than the commission of a tort.

The references to which appellant now objects were to such practices as
"E-meters," tin cans used as E-meters, the creation of religious
doctrine purportedly to "get" dissidents, and insinuations that the
Church of Scientology was a great money making business rather than a

The principal issue in this trial was one of credibility. If one
believed defendant's witnesses, then there was indeed conversion by
respondent. However, the opposite result, that reached by the jury,
would naturally follow if one believed the evidence introduced by
respondent. Appellant repeatedly argues that the introduction of the
policy statements of the church was prejudicial error. However, those
policy statements went directly to the issue of credibility.
Scientologists were allowed to trick, sue, lie to, or destroy
"enemies." (Exhibit 1.) If, as he claims, respondent was considered to
be an enemy, that policy was indeed relevant to the issues of this
case. That evidence well supports the jury's implied conclusion that
respondent had not taken the property of the church, that he had merely
attempted to leave the church with the documents for the Internal
Revenue Service, and that those witnesses who were Scientologists or
had been Scientologists were following the policy of the church and
lying to, suing and attempting to destroy respondent. Evidence of such
policy statements were damaging to appellant, but they were entirely
relevant. They were not prejudicial. A party whose reprehensible acts
are the cause of harm to another and the reason for the lawsuit by the
other cannot be heard to complain that its conduct is so bad that it
should not be disclosed. The relevance of appellant's conduct far
outweighs any claimed prejudice. fn. 4

We find the introduction of evidence of the policy statements and other
peripheral mention of practices of the Church of Scientology not to be
error. In the few instances where mention of religious practices may
have been slightly less germane than the policy statements regarding
fair game, they were nonetheless relevant and there was no prejudice to
appellant by the introduction of such evidence. [58 Cal.App.3d 448]

3=2E The trial court properly denied the motion for judgment
notwithstanding the verdict.

[3] Appellant claimed that it had probable cause to file suit against
respondent. The claim is made that even if Alan Boughton did take the
checks from the safe, knowledge of that act should not be imputed to
appellant church.

Based on the policy statements of appellant that were introduced in
evidence, a jury could infer that Boughton was within the scope of his
employment when he stole the francs from the safe or lied about
respondent's alleged theft. Inferences can be drawn that the church,
through its agents, was carrying out its own policy of fair game in its
actions against respondent. Given that view of the evidence, which as a
reviewing court we must accept, there is substantial evidence proving
that appellant maliciously prosecuted respondent. Therefore, the trial
court did not err in denying the motion for the judgment
notwithstanding the verdict.

4=2E The trial court performed proper voir dire of prospective jurors.

[4] Appellant claims that the trial court refused to ask or permit voir
dire questions of prospective jurors pertaining to their religious
prejudices or attitudes. The record does not so indicate. Each juror
was asked if he or she had any belief or feeling toward any of the
parties that might be regarded as a bias or prejudice for or against
any of them. Each juror was also asked if he or she had ever heard of
the Church of Scientology. If the juror answered affirmatively, he or
she was further questioned as to the extent of knowledge regarding
Scientology and whether such knowledge would hinder the rendering of an
impartial decision. One juror was excused when she explained that her
husband is a clergyman and that she knows a couple that was split over
the Church of Scientology.

[5] The trial court's thorough questioning served the purpose of voir
dire, which is to select a fair and impartial jury, not to educate the
jurors or to determine the exercise of peremptory challenges. (Rousseau
v=2E West Coast House Movers, 256 Cal.App.2d 878, 882 [64 Cal.Rptr.

5=2E It was not prejudicial error to direct the jury, in its assessment
of the malicious prosecution claim, to disregard evidence that
respondent stole appellant's Australian and American Express travelers'
checks. [58 Cal.App.3d 449]

[6] Appellant submits that evidence of respondent's purported theft of
the Australian and American Express travelers' checks should have been
admitted as to the issue of malicious prosecution as well as the
cross-complaint as to conversion. If there were any error in this
regard, it could not possibly be prejudicial since the jury found for
respondent on the cross-complaint. It is evident that the jury did not
believe that respondent stole the travelers' checks; therefore, there
could be no prejudice to appellant by the court's ruling.

6=2E Appellant suffered no prejudice by the trial court's denial of
discovery of the factual basis for obtaining of the dismissal by the
district attorney.

[7] Prior to trial, appellant apparently sought to discover the reasons
underlying the dismissal of the criminal charges against respondent.
This was relevant to the instant case since one of the elements of a
cause of action for malicious prosecution is that the criminal
prosecution against the plaintiff shall have been favorably terminated.
(Jaffe v. Stone, 18 Cal.2d 146 [114 P.2d 335, 135 A.L.R. 775].)

Whether or not the lower court was justified in making such an order,
the denial of discovery along these lines could not be prejudicial.
During the trial, counsel for all parties stipulated that the criminal
proceedings against Allard were terminated in his favor by a dismissal
by a judge of that court upon the recommendation of the district

In addition, there was a hearing outside the presence of the jury in
which the trial court inquired of the deputy district attorney as to
the reasons for the dismissal. It was apparent at that time that the
prospective witnesses for the Church of Scientology were considered to
be evasive. There was no prejudice to appellant since the deputy
district attorney was available at trial. Earlier knowledge of the
information produced would not have helped defendant. We find no
prejudicial error in the denial of this discovery motion.

7=2E The award of $50,000 compensatory damages was proper.

Appellant contends that based upon the evidence presented at trial, the
compensatory damage award is excessive. In addition, appellant contends
that the trial court erred in not allowing appellant to introduce
evidence of respondent's prior bad reputation. [58 Cal.App.3d 450]

[8a] There was some discussion at trial as to whether respondent was
going to claim damaged reputation as part of general damages. The trial
court's initial reaction was to allow evidence only of distress or
emotional disturbance; in return for no evidence of damaged reputation,
appellant would not be able to introduce evidence of prior bad
reputation. The court, however, relying on the case of Clay v. Lagiss,
143 Cal.App.2d 441 [299 P.2d 1025], held that lack of damage to
reputation is not admissible. Therefore, respondent was allowed to
claim damage to reputation without allowing appellant to introduce
evidence of his prior bad reputation.

In matters of slander that are libelous per se, for example the
charging of a crime, general damages have been presumed as a matter of
law. (Douglas v. Janis, 43 Cal.App.3d 931, 940 [4] [118 Cal.Rptr. 280],
citing Clay v. Lagiss, supra, 143 Cal.App.2d at p. 448. Compare Gertz
v=2E Robert Welch, Inc., 418 U.S. 323 [41 L.Ed.2d 789, 94 S.Ct. 2997].)
fn. 5 [9] Damages in malicious prosecution actions are similar to those
in defamation. Therefore, damage to one's reputation can be presumed
from a charge, such as that in the instant case that a person committed
the crime of theft. [8b] In any event, as the trial court in the
instant case noted, there was no offer of proof regarding respondent's
prior bad reputation; any refusal to allow possible evidence on that
subject has not been shown to be error, much less prejudicial error.

[10] Appellant further contends that the amount of compensatory damages
awarded was excessive and that the jury was improperly instructed
regarding compensatory damages. The following modified version of BAJI
Nos. 14.00 and 14.13 was given:

"If, under the court's instructions, you find that plaintiff is
entitled to a verdict against defendant, you must then award plaintiff
damages in an amount that will reasonably compensate him for each of
the following elements of loss or harm, which in this case are presumed
to flow from [58 Cal.App.3d 451] the defendant's conduct without any
proof of such harm or loss: damage to reputation, humiliation and
emotional distress.

"No definite standard or method of calculation is prescribed by law to
fix reasonable compensation for these presumed elements of damage. Nor
is the opinion of any witness required as to the amount of such
reasonable compensation. Furthermore, the argument of counsel as to the
amount of damages is not evidence of reasonable compensation. In making
an award for damage to reputation, humiliation and emotional distress,
you shall exercise your authority with calm and reasonable judgment,
and the damages you find shall be just and reasonable."

The following instruction was requested by defendant and was rejected
by the trial court: "The amount of compensatory damages should
compensate plaintiff for actual injury suffered. The law will not put
the plaintiff in a better position than he would be in had the wrong
not been done." Accompanying the request for that motion is a citation
to Staub v. Muller, 7 Cal.2d 221 [60 P.2d 283], and Basin Oil Co. v.
Baash-Ross Tool Co., 125 Cal.App.2d 578 [271 P.2d 122].

The Supreme Court has recognized that "Damages potentially recoverable
in a malicious prosecution action are substantial. They include
out-of-pocket expenditures, such as attorney's and other legal fees
.=2E.; business losses ...; general harm to reputation, social standing
and credit ...; mental and bodily harm ...; and exemplary damages where
malice is shown ...." (Babb v. Superior Court, 3 Cal.3d 841, 848, fn. 4
[92 Cal.Rptr. 179, 479 P.2d 379].) While these damages are compensable,
it is the determination of the damages by the jury with which we are
concerned. Appellant seems to contend that the jury must have actual
evidence of the damages suffered and the monetary amount thereof.

"'The determination of the jury on the issue of damages is conclusive
on appeal unless the amount thereof is so grossly excessive that it can
be reasonably imputed solely to passion or prejudice in the jury.
[Citations.]'" (Douglas v. Janis, supra, 43 Cal.App.3d at p. 940.) The
presumed damage to respondent's reputation from an unfounded charge of
theft, along with imprisonment for 21 days, and the mental and
emotional anguish that must have followed are such that we cannot say
that the jury's finding of $50,000 in compensatory damages is
unjustified. [58 Cal.App.3d 452] The amount does not alone demonstrate
that it was the result of passion and prejudice.

8=2E Respondent is entitled to punitive damages.

[11] Appellant cites the general rule that although an employer may be
held liable for an employee's tort under the doctrine of respondeat
superior, ordinarily he cannot be made to pay punitive damages where he
neither authorized nor ratified the act. (4 Witkin, Summary of Cal.
Law. (8th ed.) =A7 855, p. 3147.) fn. 6 Appellant claims that the Church
of Scientology, which is the corporate defendant herein, never either
authorized or ratified the malicious prosecution.

The finding of authorization may be based on many grounds in the
instant case. For example, the fair game policy itself was initiated by
L=2E Ron Hubbard, the founder and chief official in the church. (Exhibit
1=2E) It was an official authorization to treat "enemies" in the manner
in which respondent herein was treated by the Church of Scientology.

Furthermore, all the officials of the church to whom respondent relayed
his desire to leave were important managerial employees of the
corporation. (See 4 Witkin, Summary of Cal. Law (8th ed.) supra, =A7
857, p. 3148.)

The trier of fact certainly could have found authorization by the
corporation of the act involved herein.

9=2E The award of punitive damages.

[12] Any party whose tenets include lying and cheating in order to
attack its "enemies" deserves the results of the risk which such
conduct entails. On the other hand, this conduct may have so enraged
the jury that the award of punitive damages may have been more the
result of [58 Cal.App.3d 453] feelings of animosity, rather than a
dispassionate determination of an amount necessary to assess defendant
in order to deter it from similar conduct in the future. In our view
the disparity between the compensatory damages ($50,000) and the
punitive damages ($250,000) suggests that animosity was the deciding
factor. Our reading of the decisional authority compels us to conclude
that we should reduce the punitive damages. We find $50,000 to be a
reasonable amount to which the punitive damages should be reduced. We
perceive this duty, and have so modified the punitive damages award not
with any belief that a reviewing court more ably may perform it. fn. 7
[13] Simply stated the decisional authority seems to indicate that the
reviewing court should examine punitive damages and where necessary
modify the amount in order to do justice. (Cunningham v. Simpson, 1
Cal.3d 301 [81 Cal.Rptr. 855, 461 P.2d 39]; Forte v. Nolfi, 25
Cal.App.3d 656 [102 Cal.Rptr. 455]; Shroeder v. Auto Driveaway Company,
11 Cal.3d 908 [114 Cal.Rptr. 622, 523 P.2d 662]; Livesey v. Stock, 208
Cal. 315, 322 [281 P. 70].)

10. Instruction on probable cause.

Appellant requested an instruction stating: "Where it is proven that a
judge has had a preliminary hearing and determined that the facts and
evidence show probable cause to believe the plaintiff guilty of the
offense charged therefore, ordering the plaintiff to answer a criminal
complaint, this is prima facie evidence of the existence of probable
cause." The trial court gave the following instruction: "The fact that
plaintiff was held to answer the charge of grand theft after a
preliminary hearing is evidence tending to show that the initiator of
the charge had probable cause. This fact is to be considered by you
along with all the other evidence tending to show probable cause or the
lack thereof." fn. 8

Appellant claimed for the first time in its reply brief that the trial
court's lack of proper instruction regarding probable cause was
prejudicial error. Since this issue was raised for the first time in
appellant's reply brief, we decline to review the issue. fn. 9 [58
Cal.App.3d 454]

The judgment is modified by reducing the award of punitive damages
only, from $250,000 to the sum of $50,000. As modified the judgment is
in all other respects affirmed.

Costs on appeal are awarded to respondent Allard.

Roth, P. J., and Fleming, J., concurred.

 1. One such policy, to be enforced against "enemies" or
"suppressive persons" was that formerly titled "fair game." That person
"[m]ay be deprived of property or injured by any means by any
Scientologist without any discipline of the Scientologist. May be
tricked, sued or lied to or destroyed." (Exhibit 1.)

 2. Leonard J. Shaffer, the deputy district attorney, testified
outside the presence of the jury that members of the church were
evasive in answering his questions. He testified that the reasons for
the dismissal were set forth in his recommendation; the dismissal was
not part of a plea bargain or procedural or jurisdictional issue.

 3. This issue is raised for the first time in appellant's reply

 4. The trial court gave appellant almost the entire trial within
which to produce evidence that the fair game policy had been repealed.
Appellant failed to do so, and the trial court thereafter permitted the
admission of Exhibit 1 into evidence.

 5. The Supreme Court held in Gertz v. Robert Welch, Inc., supra,
418 U.S. 323, 349 [41 L.Ed.2d 789, 810], an action for defamation, that
"the States may not permit recovery of presumed or punitive damages, at
least when liability is not based on a showing of knowledge of falsity
or reckless disregard for the truth." (Italics added.) The instant case
is distinguishable from Gertz. Initially, the interests protected by a
suit for malicious prosecution include misuse of the judicial system
itself; a party should not be able to claim First Amendment protection
maliciously to prosecute another person. Secondly, the jury in the
instant case must have found "knowledge of falsity or reckless
disregard for the truth" in order to award punitive damages herein.
Therefore, even under Gertz, a finding of presumed damages is not

 6. We again note that Gertz v. Robert Welch, Inc., supra,
precludes the award of punitive damages in defamation actions "at least
when liability is not based on a showing of knowledge of falsity or
reckless disregard for the truth." The facts of the instant case fall
within that categorization, so a finding of punitive damages was
proper. Moreover, as we noted above, an egregious case of malicious
prosecution subjects the judicial system itself to abuse, thereby
interfering with the constitutional rights of all litigants. Punitive
damages may therefore be more easily justified in cases of malicious
prosecution than in cases of defamation. The societal interests
competing with First Amendment considerations are more compelling in
the former case.

 7. See dissent in Cunningham v. Simpson, 1 Cal.3d 301 [81
Cal.Rptr. 855, 461 P.2d 39].

 8. This instruction was given on the court's own motion.

 9. We note that given the circumstances of the instant case, the
juror could have easily been misled by the requested instruction. If
the evidence showed that the agents and employees of appellant were
lying, then the preliminary hearing at which they also testified would
not be valid. While the jurors may of course consider that the
magistrate at the preliminary hearing found probable cause, that should
be in no way conclusive in the jury's determination of probable cause.