This is an excerpt from attorney Jon Parsons’ book about the SRF and Bertolucci cases: A Fight For Religious Freedom: A Lawyer’s Personal Account of Copyrights, Karma and Dharmic Litigation.
A prejudiced judge issues a highly questionable ruling that deprives Ananda of its constitutionally guaranteed right to defend itself.
The Bertolucci Case Goes from Trash to Trial
In late 1997, three weeks after entry of judgment in Ananda’s favor in the federal case in Sacramento, the Bertolucci case was assigned to a trial judge in Redwood City. To understand how that trial would careen off course, crash and burn, we must look back two years.
Trash | Sept 1995–Nov 1997
Michael Flynn awoke in the pre-dawn hours of September 29, 1995, to the clang of metal outside his Rancho Santa Fe office. Jumping out of bed and rushing outside, he caught someone red-handed taking out the trash. But this was not the private garbage service Flynn used. This freelance collector had apparently pushed open an unlatched gate, walked inside a fenced area, and was removing two bags from the trash bin as Flynn rushed upon the scene. With a screaming Flynn in hot pursuit, the man legged it down the alley, threw both bags in the van, and squealed off. But not before Flynn got a good look at his license plate. These events launched a fateful and unseen trajectory that would arc back towards Redwood City to land and explode on the eve of the Bertolucci trial.
Flynn quickly tracked the van through DMV records to a Peter Barranco and filed suit. When deposed, Barranco explained that he was just a student hired to do a one-time job by a San Diego private investigator named Jana Bolling. When Flynn asked Bolling to identify who had hired her, she refused to answer, and pointed out that the Business & Professions Code prohibited a licensed investigator from divulging “any information acquired by her” as part of her investigation. She had acquired her client’s name as part of her investigation, and she refused to say who that client was. When Flynn asked a judge to compel her testimony, the judge took the code to mean what it said, and refused to order Bolling to name her client.
Flynn immediately petitioned the appeals court in San Diego for an order directing the trial judge to instruct Bolling to tell Flynn who hired her. When they finally considered it, the justices bought Flynn’s argument, gave the statute a much narrower reading, and concluded that a client’s name was not the type of information that the Legislature meant by “any information.” The appeal took time, however, and the decision granting the writ was not published until September 18, 1997, almost two years after the incident. Flynn had been busy in the meantime. He thought he knew who took the trash.
In the autumn of 1995, Flynn also represented Deepak Chopra in a lawsuit against some Chopra associates that had been filed by attorney Dennis Schoville, then with the respected San Diego-based law firm of Gray Cary Ware & Freidenrich. Schoville was a big name player in the San Diego legal community and had some headline-grabbing cases to his credit. Apparently Schoville occasionally used a private investigator named Richard Post. Without waiting for the results on his writ petition, Flynn filed suit on behalf of Chopra against Schoville, his law firm and Post, alleging that they were behind the trash incident. Schoville and Gray Cary naturally denied knowing anything about the incident, but Flynn flailed away until the defendants brought a motion for summary judgment—requiring Flynn to finally show what proof he had. With no facts to back up his claims Flynn dismissed the suit.
It was still not over for Gray Cary. The firm put in a claim to its insurance company to recover the costs incurred in defending against Flynn’s baseless lawsuit. When the Vigilant Insurance Company steadfastly denied the claim, Gray Cary sued. When it lost in the trial court Gray Cary appealed. The matter was not resolved until January 2004 when the appellate court justices in San Diego ruled against the law firm for the final time. The Bertolucci case tarred anyone who came too close.
In mid-September 1997 the San Diego justices in Flynn’s writ petition told the trial court to order Bolling to disclose the name of her client. When her deposition resumed on October 14, 1997, she did just that. Her client was another investigator, Bill DiVita. Curiously, DiVita’s office was not in San Diego, but in Redwood City, where the Bertolucci case was scheduled to go to trial that next month. Six days later DiVita sat for a deposition near his Redwood City office, and when asked, identified his client. It was Ananda, and Sheila his contact there.
The news about the private investigator and the trash incident hit like a bolt when Sheila told me in late 1997. No one had mentioned hiring a private investigator before. There were no reports from any investigator, and I could not remember any documents mysteriously showing up from some shadowy source. Sheila explained that as the rumors of SRF’s involvement in the Bertolucci case proved true, she had suggested learning more about Flynn. Someone gave her the name of a licensed investigator in nearby Redwood City, Bill DiVita, and he seemed like a nice man when they talked on the phone. She asked him to gather whatever information he could about Flynn and possible contacts with SRF.
During that call, DiVita suggested going through Flynn’s garbage. Sheila told him to be careful and do nothing illegal. There was a lot of information already publicly available, and no reason to overreach. Too much was at stake. DiVita assured Sheila that private investigators went through dumpsters all the time, and the whole thing was kosher. They would wait until collection day and save the trash service the trouble of taking this load. A quick grab and go. I remember reading Supreme Court cases back in law school that allowed the police to use evidence recovered from bad guys’ trash, teaching that you lose all property rights in things you throw away. Legal Maxim # 14: You cannot keep your cake and trash it too. I understood why DiVita and Sheila saw nothing illegal about looking through garbage that Flynn had thrown away. But this was lawyer trash, and it soon became grist for the karmic mill.
In late September 1995 Sheila received two bags of garbage shipped from Southern California to her Mountain View apartment. She opened the bags and started sifting through them. They contained mostly food scraps, junk mail, and packaging waste. Buried in coffee grounds Sheila found four documents concerning the lawsuit: a list of witnesses to be deposed, a draft of an unused declaration by an unhappy participant in some Ananda program, and two memos concerning Janice Moreno. Janice was a former SRF nun, who for many years had been a close friend and confidante of Kriyananda. Before hearing about their problematic pedigree, Sheila looked at the documents, decided they were useless, and put them away in an envelope in her desk.
She soon learned that mistakes may have happened during the acquisition of the documents. Flynn started beating the drums, making wild claims and tracking the trail of his trash. The receipt and review of the documents, followed by this troubling news, left Sheila holding a wolf by the ears. She did not want the documents, but could not let them go. There was no reason to return the trash to the Flynn firm. They had thrown it away in the first place and clearly did not need or want it. It seemed injudicious for Sheila to step forth with a spontaneous disclosure from which no good could arise. Besides, the whole thing might blow over. No harm, no foul.
On the other hand, Sheila could not now destroy the documents without risking personal liability for the destruction of potential evidence. And if she destroyed them, there would be no proof of their insignificance. Moreover, shredding the documents would make it look like she had something to hide. Yet holding on to the documents involved a risk that her actions would be seen as some kind of continuing violation. Back and forth she went between these two lose-lose propositions. The documents stayed in the drawer, where they laid for two years, out of sight and mind.
Trial | Nov 1997–March 1998….
The case was assigned to Department 1, the Honorable Lawrence T. Stevens presiding…. We did not know it at the time, but when assigned our case Stevens was actively seeking appointment to the appellate court. A salacious case receiving lots of press could only help his application, and should a damsel be saved, so much the better. In August 1998, just months after finalizing judgment in the Bertolucci case, Stevens was elevated to the First District Court of Appeal. Those days a case would be assigned to the trial judge on the day set for the trial to begin. The judge usually invites counsel into chambers to discuss the scope of the trial, and tell them about his ground rules. Stevens had received the case file that morning, and by the time we met he had only read the plaintiff’s most recent complaint. He began the conference by announcing that the pleadings disturbed him. Of course, he explained, they were only allegations, only one side’s story, but they were disturbing. Team Bertolucci had put the hook in him. Stevens immediately went on to explain that the allegations had not biased him in any way, he thought the subject matter interesting, and he would give both sides a fair hearing. Then Stevens gave us an opportunity to have a different judge, and requested that we agree for him to be our judge.
Well now. A surprising offer and a simple question. But San Mateo judges were known to push cases to trial, and it was rare for a judge to permit the parties to walk at will once assigned to a trial courtroom. Rarer still for a judge to remind the parties of their statutory right to have him removed from the case. We had been assigned to him, and he did not need our permission to preside. We could object, but we hadn’t. So why the talk about our right to remove him, and why ask for our express consent to proceed? Over the years I have decided that Stevens’ comment and request were a “tell” signaling us that he reserved some doubts about his impartiality. He was projecting that we had reason for concern. I will not miss that again. When asked for our response, Gordon [Gordon Rockhill, Ananda’s trial attorney in the Bertolucci case] and I conferred for a moment with the limited confidentiality you get huddled in a judge’s chambers. He thought Stevens was a straight shooter and we agreed we could do worse. Everyone was ready to go and further delay would be costly. We agreed he was our judge.
The trial did not start in September. Bertolucci had filed a motion for reconsideration of Judge Kozloski’s order eliminating some of complaint’s claims, and that motion would be heard on October 14. Stevens saw no reason to rush, and Team Bertolucci hoped for a few more last-minute motions, so the judge set dates in October for clean-up motions and housekeeping matters. The news about Ananda’s hand in the trash incident broke in mid-October, just as the final set of pre-trial motions were being prepared. Team Bertolucci quickly included another motion, this one for “terminating sanctions.” “Terminating sanctions” refers to any of the numerous ways a judge can end a lawsuit without taking any evidence. This termination could include striking Ananda’s filed answer, so that Bertolucci could then immediately obtain a default judgment, as if Ananda had never responded to the complaint. Sanctions could include instructing the jury that they were to rule in favor on one party on specific claims, limiting what Ananda could say or ask at trial, or simply telling the jury about what had happened.
Judge Stevens did not like the idea of one side going through the trash of the other side’s lawyers. It did not pass his “smell test,” and while it might not be technically illegal, Stevens thought it was not right. With the date approaching to select a jury, Steven specially scheduled a quick hearing to take testimony on the trash incident. All the witnesses agreed that it was Ananda’s investigator who had suggested looking at the trash, and that Sheila told him that everything had to be done legally and properly. Somewhere between those instructions and Sheila’s receipt of the documents, something went wrong. Something larger than the sum of the people caught up in it. The trash incident should have been legal, undetected, and productive. It wasn’t and it cost us the case.
And Stevens had found a means to his end. During the course of discovery, Team Bertolucci had served hundreds of requests for documents, depositions, and other discovery. Request No. 49 in the Fifth Request for Production of Documents asked for “All documents that mention, refer, or relate to” Janice Moreno. Ananda had not produced the two documents from the trash that mentioned her. I did not know Ananda had the documents, and perhaps it never crossed Sheila’s mind that this request embraced the trash stowed away in some drawer. But Ananda had the documents in the drawer, and Ananda did not produce them. This omission may have been factually insignificant, but it gave Judge Stevens all the excuse he needed to impose significant sanctions. He decided to strike at the heart of Ananda’s defense, and on the morning of “Bloody Monday,” November 3, 1997, announced his decision.
When the hearing opened Judge Stevens appeared to seriously consider striking Ananda’s answer entirely, and entering judgment against the church, and perhaps all the other defendants as well. But that would have been too easy, and Ananda might win that appeal, while avoiding the costs of trial. Something more spectacular, more devastating was called for.
Stevens concluded that Ananda had intentionally failed to produce two documents in discovery, that Ananda had benefited from that omission in some way, and that crippling sanctions against all the defendants were warranted on account of the two withheld documents. He ruled that as a penalty for Ananda failing to produce copies of the two memos from the trash, all the female witnesses—including, but not limited to, the women we already knew about—would be permitted to testify about all their interactions with Kriyananda at any time. All the women could say anything they wanted to, relevant or not, recent or not. And there was more. We could not question, impeach, challenge, or explain whatever these ladies might say. We could not ask, imply, or introduce evidence indicating in any way that we thought their testimony was not true. And . . . the jury must never know about this order. The jury must think we silently agreed with the plaintiff’s witnesses. During the trial Stevens once called me to task for grimacing at some testimony.
These witnesses were technically irrelevant to Bertolucci’s employment case, but when we ignored them and failed to refute a thing they said, their stories acquired a growing visceral significance. Stevens’ order that the jury never know about his instructions made it look like we did not dispute a single word these witnesses uttered. The order applied to Kriyananda’s and Danny’s defense as well. Kriyananda and Danny had withheld no documents and did nothing wrong. Yet they too would be the butt of Stevens’ sanction.
What a blow. What an unbelievable blow. How could it be, that after so much effort and preparation, with so much at stake, we would have our hands and tongues tied at trial? With this single order the trial was doomed from its start. This was beyond reason or justice. It was cosmic, karmic, and darkly comic in a single mind-numbing coup. But was it some burning karmic recompense or just the gods having fun?
Juries are strange creatures. For days, weeks, or months they hear evidence from witnesses and look at documents, presented as a patchwork of facts. Only at the end of the evidence do they receive the jury instructions telling them what they should have been listening for. The lawyers then tell them what they heard, and what they should now think. Except in the simplest of cases, it is difficult for a group of naive laymen to grasp the factual nuances and the legal intricacies needed to reach rational and just conclusions that comport with the law.
Juries, like other people, make up their mind first based on how they “feel” about something. Once they decide who is in the right, they start selecting facts that support those emotional leanings. Juries act as the social and ethical consciousness of a community—but not to render justice so much as to resolve a morality play. In every trial there must be a good guy and a bad guy, and the jury wants the good guy to win. Much of trial presentation is communicating who wears the white hat and why. We were at a distinct disadvantage because Team Bertolucci would present its case first. They postured Anne-Marie as a starry-eyed ingénue in a sinister melodrama. Setting aside the actual facts, it was a good approach, and Steven’s sanctions order was tailor made for their story. The case was no longer about Anne-Marie’s employment or her treatment. It was now about whether Kriyananda had been celibate for the last thirty years.
Jury selection started on November 4, with opening statements the next Monday. Testimony began later that week with Anne-Marie. Team Bertolucci then started parading the ladies, and over the next two days four of them testified before we broke for Thanksgiving. During that five-day break the jurors had a lot of time to think about the ladies’ testimony, how everything they said must be true because no one challenged them about it. No other story or interpretation had been presented, so what could they think? The trial resumed, another of the women testified, and then Parameshwari, now called Kimberly Moore, took the stand.
Whatever the ladies thought they remembered about these events, some now decades old, their stories came gushing forth. A few witnesses sounded scripted and others appeared overwhelmed now that their moment had finally arrived. It was all drama in high dudgeon, and we sat there and took it, day after day. Maybe it was cathartic, but it was not justice and it was not fun.
Team Bertolucci called Kriyananda as a witness, followed by a number of lesser witnesses. By December 5 it was time for the paid opinions. Their first expert testified over four days, followed by more “filler” testimony. Then Janice Moreno testified. She had nothing relevant or compelling to say, and her testimony did not hurt us. Ironically, the discarded memos about her did us far more damage than she did.
Bertolucci’s experts were the icing on the cake. They gave the jurors the psychological justification they needed to find everything was Ananda’s or Kriyananda’s fault. The “power differential” inherent in the guru-disciple relationship supposedly stripped adherents of their free will. Although Kriyananda was not a “guru,” he was a “swami” and that, it seems, was close enough for the experts. They testified how chanting and meditation and the fresh mountain air had all zapped Anne-Marie’s brain, so everything that followed was Ananda’s fault. Which meant it was Kriyananda’s fault.
Experts originally developed the idea of brainwashing in the 1950s to explain how prisoners of war held in North Korea cracked under the strain of torture, sensory deprivation, and indoctrination. Modern day experts apply this same vocabulary and analysis to explain voluntary membership in religious organizations here at home. They call “coercive” any relationship where one person has greater “power” than the other. The trial became less about legal rights or actionable wrongs, and more about assigning blame to a lifetime of discipleship. About vulnerable maidens and manipulative cults. Beauty and the Beast.
Things could have been worse, I suppose. Team Bertolucci had threatened to call a string of new and so-far undisclosed victims. With Stevens’ assistance, they could now do so, and say anything they wanted to, regardless of the reality. But the wave of new witnesses never materialized.
On December 16, Ananda began its defense, calling rebuttal experts and some of our principal witnesses. We got in a week of testimony, and then took an extended Christmas break until January 6. This timing also worked against us, because the jury now had weeks to think about the plaintiff’s complete case, with only a fraction of the defendants’ explanations in mind.
By the time Kriyananda testified, the jury was ready to not like him. They had heard days of negative testimony about him from emotional witnesses that had not been denied or explained. They had no reason to doubt anything the ladies had said, or the construction that Bertolucci’s experts placed on that uncontested testimony. And Kriyananda would not pretend to be someone other than who he was. For the last forty years Kriyananda had lived in a world of spiritual discourse and refined exposition, where he shared insights through subtlety and nuance. That approach does not work with a jury who has learned their law from television. Testimony must be scripted and rehearsed to be believable. There must be tears, some fireworks, and a denouement of retribution and moral resolution.
Kriyananda gave the jury his simple unvarnished story, as best he could with an order that made him watch every word, and prevented him from telling the whole truth. I imagine the jury found him stiff, too reserved, and overly precise with his slow measured delivery. This was the point where a better relationship between Kriyananda and Gordon might have translated into a more personable presentation, but I doubt it really could have helped. Anne-Marie and the ladies had cried for the jury, pouring forth their tales. The jury correctly thought Kriyananda was holding back, not giving them the full story, but they never knew that Stevens had ordered that reticence.
Ananda Loses One | Jan—Feb 1998
Our case stumbled punch drunk on to judgment. Unable to present any real case, we knew we were going down but refused to give in. The jury did not like the evidence it heard, and on February 5, 1998, awarded damages on three grounds:
One: Ananda and Kriyananda were both liable for “constructive fraud.” Constructive fraud is very different from “real” fraud and does not require any intent to mislead anyone. You can be guilty of constructive fraud by accident. It consists of “any breach of duty which, without actual fraudulent intent, gains an advantage to the person in fault, or any one claiming under the person in fault, by misleading another to the prejudice of the person misled, or to the prejudice of anyone claiming under the person misled.” Perhaps the jury concluded that Bertolucci had tendered her affections in consideration of false pretenses.
Two: Ananda and Danny were both liable for “intentional infliction of emotional distress.” They had messed with Anne-Marie’s mind and broken her heart. The jury also found that they had done so with “malice” and using “despicable conduct,” as the Civil Code defined those terms.
Three: Ananda was liable for “negligent supervision.” The jury decided that the church was under some kind of a duty to supervise Kriyananda and had failed to do so. Moreover, it failed to do so with “malice and fraud.” The verdict never indicated just what Kriyananda supposedly did, what the church should have known, or how it should have acted differently. It was all about the other women, who spoke with impunity knowing they could not be cross-examined. It was all about the past playing into the present. The jury, fanned perhaps by the plaintiff’s “swami” shtick, had built the women’s stories into a modern day auto-da-fé. The jury never found any sexual misconduct by Kriyananda, yet they awarded $595,000 in damages against both Ananda and Kriyananda, and only $30,000 against Danny. Go figure.
This award was bad enough, but the jury’s findings also opened the door to possible punitive damages. The jury would reconvene later and decide whether to grant punitive damages “by way of example and to punish the defendant.” If granted, these additional damages must be based on the defendants’ net worth at the time of trial. The possibility of punitive damages thus permitted yet more discovery, now about Ananda’s and Kriyananda’s assets. So we began with yet more depositions on February 6, 1998. Bertolucci hired experts to go through Ananda’s finances and report on everything they saw. Kriyananda’s corpus of writings, poems, songs, and chants was itemized and appraised. The so-called “housing pool,” through which residences were assigned and maintained, was scrutinized for hidden assets, as well as an opportunity to further roil the waters.
The jury reassembled in February to consider punitive damages. They had not lost their steam and awarded a nice round $1,000,000 in additional damages—an amount far in excess of any justifiable sum. This portion of the award was clearly wrong, and we thought we should be able to eliminate the punitive damages by a relatively simple post-trial motion. Ananda was being punished for the testimony of the women whom Ananda could not cross-examine, and whose testimony could not be denied or negated in any way. And the jury awarded damages never knowing about Stephens’ order tying Ananda’s hands.
We brought a motion to strike the punitive damages award, and Stevens concluded that he had to grant our motion. But Judge Stevens did not immediately discard the entire award. Instead, he ordered that Bertolucci had to accept a smaller award of $400,000 instead of the full million, and if she did not accept this lesser amount, then the punitive damages award would be negated in its entirety. Bertolucci did not accept the lesser amount, never requested any different amount, and the punitive damages award was stricken in its entirety. So there was no award of punitive damages. By this time Team Bertolucci had other fish to fry.