[WOJCIK (pronounced more or less Vor Check)is the son of the judge who express outright fear of the cult to Jim Harr in chambers. It was reported me that when the judge came to the place where he was reading his ruling into the record he was visibly shaking. Just another day in the Riverside Court system. HKH]

SUPERIOR COURT OF CALIFORNIA

COUNTY OF RIVERSIDE - HEMET BRANCH

HILARY DEZOTELL, KEN HODEN ) and BRUCE WAGONER, )

Plaintiffs, )

V. ) CASE NO. HECO09673

H. KEITH HENSON, )

Defendant. )

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE BARRY A. RIEMER 880 North State Street Hemet, California

MONDAY, AUGUST 26, 2002 1:37 P.M. - 1:50 P.M.

JOB N0. 72433 CERTIFIED COPY PAGES 1 - 12

HEMET, CALIFORNIA, MONDAY, AUGUST 26, 2002 1:37 P.M. -000

THE COURT: The Court will call the matter of Dezotell et al versus Henson on Civil 9673.

Appearances.

MR. WOJCIK: Good afternoon, your Honor. Joe Wojcik on behalf of the plaintiffs.

MR. ABELSON: Elliot Abelson on half of the plaintiffs.

MS. NOVORR: Good afternoon, your Honor. Karen Novorr on behalf of the defendant.

THE COURT: This is the time and place set for plaintiff's summary ajudication motion in limine as to Cause of Action No. 1 of their complaint, and I would initially indicate that the Court is prepared to waive direct judication motion as to Count 1 that alleges violation of Code of Civil Procedure 52.1A, violation of civil rights.

The Court has thoroughly reviewed the motion, opposition to the motion, and the reply to the opposition, and the issues presented appear to be whether or not the plaintiff has met its burden that is vital to the matter of law summary ajudication Count 1 of its complaint based upon the doctrine of collateral estoppel, and further, whether the plaintiff's statement of undisputed material facts in

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the evidence are properly responded to by the defendant in the context of the presence or absence of a material, triable issue of fact as opposed to whether they actively recall and are qualified to support the motion based upon the prior proceeding or the prior criminal proceeding and the doctrine of collateral estoppel.

Does counsel for defense wish to be heard?

MS. NOVORR: Yes, your Honor. I would ask for rulings on the record as to our evidentiary objections as to plaintiff's evidence, specifically as to the hearsay objection regarding the testimony that was provided by the plaintiffs using the transcripts of People versus Henson.

MR. WOJCIK: Your Honor, if I may, with regard to the evidentiary objections, and I think it's addressed in our reply brief, the reason the transcripts were included as part of our motion was not simply for to offer the truth of the matter. I think it was offered in order to assist Your Honor in determining whether this particular issue was decided in the criminal trial under 422.6. So on that basis, I think we're not -- since we're not offering -- I think the hearsay objection is irrelevant for the purposes of the transcripts.

MS. NOVORR: Your Honor, based upon the fact that plaintiffs filed a separate statement of undisputed facts and as their evidence of that excerpts from the

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transcript, that goes in contrary to plaintiff's argument now that they're not being asserted for the truth of the matter. If that is the case, then their motion to stand on its own as collateral estoppel and not on the issue of non -- of any undisputed fact, the rulings still needs to be made as to the admissibility of the evidence since they put forth a separate statement of undisputed facts using the trial transcripts.

THE COURT: Any further response?

MR. WOJCIK: Your Honor, with all due respect, the word estoppel is loosely construed. The mere fact that we include it doesn't mean that we're saying that particular fact is truthful. The truthfulness of it was proved at the criminal trial with the 422.6 conviction. All we're saying is there was a set of facts that were relied on in the criminal proceeding in order to reach a verdict by 12 jurors under 422.6. And that in and of itself was used to assist Your Honor to determine, yes, this issue was decided, and now we're going to estop that issue for purposes of this hearing under Civil Code 52.1.

THE COURT: All right. Submitted? Or anything further?

MS. NOVORR: Your Honor, I want to kind of separate the fact that there tends to be two objections besides the one now has been brought out and the fact that

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defendant's position is the evidence that was presented under the separate statement of uncontradicted facts and our objections filed in accordance with that that needs to have a separate ruling.

As far as the issue of collateral estoppel, it's technically a second issue, form the aspect of was that -- was the criminal proceeding to a point you can collaterally estop it. Our argument for that is no, based upon obviously the papers that are filed on the fact that it doesn't meet the four-part test, specifically because of the fact that there was a three-part complaint. Of that three-part complaint, the underlying two charges which there is a verdict on basically encompass the third charge. The 422 and the 422.6 are basically the same charge. 422.6 of the Penal Code has to take it a step further. So therefore being no finding under 422, the fact that they can argue collateral estoppel, I think, in this case precludes that finding of the collateral estoppel besides the fact again with the defendant not testifying and the restrictions that were put on criminal proceedings show findings under the motion in limine.

THE COURT: If the Court found that they're entitled to summary ajudication under the doctrine of collateral estoppel, any of the transcripts that they submitted in support of their motions, would it matter if

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anything within those transcripts were true other than the fact that the trial took place and whether or not it was actually litigated? In other words, hearsay, if it's not being offered for the truth of the matter asserted, it's not hearsay at all. So the hearsay objection is not well taken.

MS. NOVORR: Correct, your Honor, but I think it's two part -- I think we're arguing two separate issues, and if they're using the separate statement of facts to base their motion for summary ajudication on of that issue, then in that case you would have to make an evidentiary ruling on basically the transcript portions that they issue. If your ruling is based upon collateral estoppel, then I'd just ask the Court to make its ruling and the reasons for its ruling to protect the record on the fact of the four-part test and whether the burden had been met.

MR. WOJCIK: Your Honor, just really briefly with regard to 422, there's no 422 on the parallel statutes. Our position has been 422.6. And I think that's well addressed in our motion as well to reply on that. I'll submit, your Honor.

THE COURT: The Court finds the issues to be decided within Count 1 of plaintiff's complaint are identical to the issues within the criminal jury trial, People versus Henson. That was case Hemet misdemeanor 14371 wherein the defendant on April 26, 2001, was convicted after

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jury Penal Code Section 422.6A. The legal elements of Penal Code 422.6A and 5212A appear to be identical except one is a public offense and one is a latter of civil wrong. It appears to be the defendant, the same defendant in the civil as well as the criminal proceeding. The defendant was found guilty by a jury in the prior criminal proceeding on the facts, and the judgement of the prior criminal proceeding is final upon the merits, and the defense appeal has been dismissed.

The public offense was serious in that the defendant was convicted of violating constitutional and civil rights and received a one-year jail sentence. Defendant was represented by counsel in the criminal matter. It was litigated fully before a jury. The defendant had the opportunity to or cross-examined all the witnesses from that criminal proceeding, two of whom are plaintiffs herein, and presented a thorough defense -- District Attorney's office, witnesses, and evidence and the verdict.

The defendant's factual contentions may not be addressed as they're not directed to the accuracy of plaintiff's criminal trial proceeding. Transcripts statement of undisputed facts with their -- to the substance of the contentions which are not relevant to the plaintiff's motion which is therefore what decision as to whether or not collateral estoppel buys.

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The proper consideration of defendant's statement of facts and declaration leads to whether the plaintiff has met their burden and theory -- as they were presented by plaintiff for that purpose to support the theory of collateral estoppel, and defendant has made no such contention of merit, and defendant's evidentiary objections are overruled as they are not offered for the truth but for the proposition that the relevant issues were litigated fully to sustain their evidentiary burden whether or not they're true or not.

The Court finds the Evidence Code Section 1292 does not apply. The Court has found no legal authority, nor was any presented by the defendants to distinguish between asserting collateral estoppel by a criminal victim against the convicted defendant who later sues his or her accused only or civilly but barred a criminal victim from asserting same in their civil action against the defendant, nor does the Court find any public policy considerations against the holding.

Since all the plaintiffs herein were named as victims in the criminal count, defendant was convicted of in the jury's verdict was the finding of truth as to all material elements to be proved based upon facts in evidence presented. The defendant has presented no authority or facts which requires the Court to assume that the jury may

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[missing line here]

been victims. I don't believe it's necessary for this proceeding.

Plaintiff's cause of action against defendant for interfering with plaintiff's constitutional protected rights of association and free exercise of religion stands ajudicated of the criminal proceeding that plaintiff entitled to summary ajudication upon Count 1 of its complaint herein. And the Court would adopt the findings and the proposed order by which of the plaintiff and next would counsel's request on the issues of damages and the remaining causes of action.

MR. WOJCIK: That would be fine, your Honor, and thank you very much. What we propose to do is we submitted a proposed order already, but I think we need to withdraw that filing and probably submit a new order based upon Your Honor's ruling, and we'll just take it off the transcript in order to submit a ruling that would be acceptable to Your Honor.

MR. ABELSON: And totally accurate.

THE COURT: But I need to have a further proceeding date. Plaintiff then submit an order but we need to set a -- would you like to set a trial or a status conference based upon the ruling?

MR. WOJCIK: I'm not quite convinced we need a

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trial date. I would rather set it after the status.

THE COURT: Is that acceptable?

MS. NOVORR: That's acceptable, your Honor.

THE COURT: If you wish to take any kind of exception, we'll need a little time.

MS. NOVORR: I need to consult with my client, too.

MR. WOJCIK: Sixty days?

THE COURT: How about October the 21st? That would be 1:30 in Hemet 34 if that fits with counsel's calendar.

MS. NOVORR: That's fine, your Honor.

THE COURT: Further notice waived?

MS. NOVORR: Notice waived.

MR. WOJCIK: Notice waived, your Honor.

THE COURT: That would conclude the matter.

(The proceedings concluded at 1:50 p.m.)

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