Filed 9/25/18
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                THIRD APPELLATE DISTRICT
                                             (Shasta)
                                               ----




SARAH SUMNER,                                                        C077302

                  Plaintiff and Appellant,                   (Super. Ct. No. 175786)

        v.

SIMPSON UNIVERSITY et al.,

                  Defendants and Respondents.



      APPEAL from a judgment of the Superior Court of Shasta County, Marlow,
Judge. Reversed in part and affirmed in part.

        Sarah Sumner, in pro. per.; and Michael Cogan for Plaintiff and Appellant.

      Vartain Law Group, Michael J. Vartain and Kathryn J. Burke Respondent for
Defendants and Respondents.



        “The First Amendment guarantees to a religious institution the right to decide
matters affecting its ministers’ employment, free from the scrutiny and second-guessing



                                                1
of the civil courts.” (Schmoll v. Chapman University (1999) 70 Cal.App.4th 1434, 1436
(Schmoll).) The so-called ministerial exception is “a ‘nonstatutory, constitutionally
compelled’ exception to federal civil rights legislation. [Citation.] The idea is that the
law should not be construed to govern the relationship of a church and its ministers.”
(Hope Internat. University v. Superior Court (2004) 119 Cal.App.4th 719, 734.) The
Supreme Court has concluded that the ministerial exception bars a minister’s
employment discrimination suit based on the church’s decision to fire her. (Hosanna-
Tabor Evangelical Lutheran Church & Sch. v. EEOC (2012) 565 U.S. 171, 196 [181
L.Ed.2d 650] (Hosanna-Tabor)) The Supreme Court has not decided whether the
exception bars a breach of contract or tort action. (Ibid.) That is the issue we decide in
this case.
       Plaintiff Sarah Sumner was the dean of A.W. Tozer Theological Seminary (Tozer
Seminary), which is part of defendant Simpson University in Redding, California.
Although Sumner had a written employment agreement, her employment was terminated
by Robin Dummer in his capacity as acting provost of the university on the ground
Sumner was insubordinate.
       In response to Sumner’s complaint alleging breach of contract, defamation,
invasion of privacy, and intentional infliction of emotional distress, defendants moved for
summary judgment on the ground Sumner’s employment was within the ministerial
exception, an affirmative defense, and that as a result judicial review of her employment-
related dispute is precluded by the First Amendment. The trial court agreed, and granted
summary judgment.
       Sumner argues the ministerial exception was not applicable because she was not a
minister, and the facts were in dispute as to whether Simpson University was a religious
organization. She argues that even assuming the ministerial exception is applicable, it
does not preclude enforcement of her contract and tort claims.



                                              2
       As defendants who are moving for summary judgment based on the assertion of an
affirmative defense, defendants had the burden to show that undisputed facts supported
each element of the affirmative defense. (Consumer Cause, Inc. v. SmileCare (2001) 91
Cal.App.4th 454, 467-468; Hosanna-Tabor, supra, 565 U.S. at p. 195, fn. 4.) Hosanna-
Tabor did not set forth the elements of the ministerial exception, but we derive from the
cases that the following elements are required to successfully assert the ministerial
exception as a defense to a contract claim. First, the employer must be a religious group.
(Id. at pp. 176-177.) Second, the employee making the claim must qualify as a minister.
(Ibid.) Third, the contract claim must be one that turns on an ecclesiastical inquiry or
“excessive[ly] entangle[s]” the court in religious matters. (Petruska v. Gannon Univ. (3d
Cir. 2006) 462 F.3d 294, 312.) We shall conclude the trial court correctly concluded that
Simpson University is a religious organization and that Sumner is a minister for purposes
of the ministerial exception, but that her contract cause of action is not foreclosed by the
ministerial exception. Defendants have failed to show that resolution of Sumner’s
contract claim would excessively entangle the court in religious matters. However, her
tort causes of action are part and parcel of the actions involved in her termination, and are
therefore barred by the ministerial exception.
                   FACTUAL AND PROCEDURAL BACKGROUND
       A. Facts Relevant to Simpson University Being a Religious Organization
       Simpson University is a California religious corporation. It owns and operates the
Tozer Seminary, which educates clergy. The Christian and Missionary Alliance
(C&MA), an evangelical Christian denomination, sponsors three colleges and universities
and one seminary in the United States. Simpson University is the western regional
university of C&MA.
       Simpson University is a party to the Affiliated Enterprise Agreement with C&MA,
and is bound by the Affiliated Enterprises Regulations (Regulations). The Regulations
provide in part that the purpose of the school is “ ‘to provide primarily for the ministerial

                                              3
education needs of the [C&MA], thus preparing missionaries, pastors and other
vocational church workers.’ ” All employees of Simpson University must affirm their
commitment to Christ and sign and annually affirm the statement of religious doctrine of
the C&MA.
       The courses of the Tozer Seminary are religious in nature: Biblical studies,
Christian counseling, communication and preaching, ministry leadership and
administration, discipleship ministries intercultural studies, and theological and historical
studies. During the relevant time period, the Tozer Seminary was under the leadership of
the dean (Sumner), who reported to the provost of Simpson University, who reported to
the president of Simpson University.
       B. Facts Relevant to Sumner Being a Ministerial Employee
       Sumner began working as dean of the Tozer Seminary on January 11, 2010.
Sumner’s written employment contract provided that she would receive a housing
allowance in accordance with the regulation for clergy, and that for tax purposes she
would be treated as self-employed clergy. The agreement also required her affirmation of
acceptance of the Statement of Faith of the University. The job qualifications for the
dean of Tozer Seminary included: “Commitment to Christ-centered Christian higher
education in general[;]” “Be currently licensed with the [C&MA] or willing to be
licensed[;] “Earned doctorate in ministry or related field, administrative experience, and
theological education teaching experience[;]” and “Agree with the Statement of Faith of
Simpson University.”
       Sumner also taught courses in the seminary while she was dean. She taught Old
Testament, God Revelation and Humanity, Christ the Spirit and the Church, Events in
Church History, Pursuing Wisdom, and Church and Society. All of the courses she
taught were religious in nature. Sumner was licensed as a worker of the C&MA.




                                              4
       C. Facts Relevant to Sumner’s Termination
       Sumner began working under an employment contract that stated: “Duties, rights,
and privileges of administrative faculty are set forth in the Faculty and Staff Handbooks
and the Academic Policy and Procedure Manual.” As dean, Sumner was part of the
administrative faculty. The faculty handbook provided: “Assistant professors are
awarded 3-year contracts, associate professors are awarded 5-year contracts, and full
professors are awarded continuous contracts. The assumption for faculty holding multi-
year contracts is that a contract will be renewed at its expiration, unless conditions
outlined in Section I.2, I.3, or I.5 have arisen.” Sumner alleged she was entitled to a
continuous contract by virtue of her status as a full professor. Section I.2 of the faculty
handbook provided:

              “After due process, the Provost may dismiss a faculty member
       during an annual contract period for one or more of the following causes:

             “a. Irreconcilable differences relating to the doctrinal statement to
       which the faculty member is required to subscribe.

             “b. Conduct not in keeping with the moral standards of the
       University as described in the Faculty Handbook

              “c. Failure to perform faculty responsibilities as prescribed in the
       Faculty Handbook.

              “d. Gross professional incompetence that threatens the safety or
       reputation of the institution. This is to be distinguished from the status of
       ‘probation’ . . . that institutes a grace period for remediation.

              “e. Insubordination, the willful refusal to follow directives or
       perform work properly, as assigned by a supervisor. Insubordination is not
       to be confused with academic freedom, as described in Section G.1.”
       Section I.3, fiscal exigencies, is irrelevant to the case, but Section I.5 provided in
pertinent part:




                                              5
              “c. Performance reasons

              “When substandard performance may jeopardize the renewal of a
       multi-year contract, clear notification and a probationary period will be
       given in accordance with the following guidelines: [¶] . . . [¶]

              “B) The division chair and Provost will make the decision to place a
       faculty member on performance ‘probation,’ through the summative review
       process, 18 months before the end of the contract, or at any other time when
       evaluation measures so indicate. ‘Probation’ means contract renewal is in
       jeopardy for performance reasons. This status is clearly stated to the
       faculty member both verbally and in writing.”
       Sumner was terminated the first time on June 22, 2011. On June 6, 2011, Simpson
University President Larry McKinney sent Sumner a letter complaining about the process
Sumner used to gain support for her proposal that the seminary become an independent
cost center, structurally distancing itself from Simpson University. McKinney’s
complaint was that Sumner had presented her concept to multiple people without first
discussing it with him. He stated: “The actions I just cited are examples of circumventing
your immediate supervisor, the Provost, the President, and the Chair of the Board of
Trustees. These actions serve as examples of insubordination and disregard for authority.
This is deeply troubling to me and is a pattern that cannot be repeated.”
       After the first termination, Sumner made a formal grievance. She alleged that her
grievance was referred to an ad hoc grievance committee, which voted to reinstate her.
She further alleged the results of the vote were relayed to defendant Dale Dyk, the
chairman of the board of trustees of Simpson University. Sumner alleged that Dyk
falsely reported to the board of trustees and to Sumner that the ad hoc grievance
committee voted to uphold the termination. Dyk announced to the entire Simpson
University community that the termination was final. McKinney, too, publicly stated that
the ad hoc committee had voted to uphold the termination. Sumner also alleged
McKinney accessed her emails after her termination and distributed selected emails to
validate her termination.



                                             6
       Sumner was eventually reinstated to her former position. She and the Simpson
University president, provost, and board of trustees agreed to certain provisions for
reinstatement which included the establishment of a conciliatory process, the mutual
expression of apology to appropriate parties, the agreement by Sumner to submit future
proposals regarding the seminary to the provost for review, the agreement that the
provost would serve as Sumner’s exclusive supervisor and that her performance review
would follow policies and procedures, the payment to Sumner of back pay and retirement
benefits, and the repayment of Sumner’s work-related out-of-pocket expenses incurred
during her period of unemployment up to $12,000.
       Following her reinstatement, Sumner began communicating with various Simpson
University personnel, and urging them to tell “the truth” about her termination. Dummer
wrote Sumner a letter on July 18, 2012, in which he stated Sumner had violated the
protocols that Stanley Clark, the provost of Simpson University, had given Sumner when
she was reinstated. The letter stated that one of the protocols was that Sumner would not
send out any more group emails that were critical of the university leadership. Dummer
stated that Sumner had violated this protocol. Dummer also stated that Sumner had
violated the protocol that she not act beyond her scope of authority without advance
approval of her supervisor. Dummer stated that the breaches of protocol constituted
insubordination. Sumner alleged she had never been given a list of protocols. Dummer
stated that Sumner had been instructed not to publicize any details of the conciliation
process, yet she publicized that the president walked away from the negotiations and
refused to participate further. Dummer offered that if Sumner would sign a list of
stipulations, she would be placed on probation, rather than terminated.1


1      The proposed stipulations were as follows:

       “1. You will not use email as a form of communication with persons affiliated
with the University, in which the content is in any manner whatsoever related to your

                                             7
       By July 27, 2012, when Sumner had not responded to Dummer’s letter, he
terminated her employment. This action relates only to the second termination.
       D. Proceedings Below
       Sumner’s first amended complaint alleged causes of action for breach of contract,
gender discrimination and harassment, defamation, invasion of privacy, and intentional
infliction of emotional distress. Sumner later dismissed the gender discrimination cause
of action. Among the numerous affirmative defenses asserted by defendants was the
allegation that the complaint was barred by the religion clauses of the First Amendment
of the United States Constitution and article I of the California Constitution. The trial


opinions about your issues in your employment with Simpson University or your
opinions about its leadership.

       “2. You will not publicly communicate with persons affiliated with the
University, in which the content is disparaging of Simpson University or its officers,
trustees, faculty members, students, staff members, or church leaders, or of any one or
more of them. [This does not limit you orally communicating in an in-person and private
manner.]

       “3. You will request and obtain the written permission of your supervisor
(currently, me as Acting Provost), before inviting others apart from your immediate
Tozer staff who report directly to you, to meetings or seminars or classes of any kind.

      “4. You will comply with all other instructions that have or will come from your
supervisor.

      “5. You will comply with the directives you received on December 7, 2011 from
Provost Clark, currently substituting my name for that of Provost Clark.

       “6. You will not, in any other manner, exceed the authority that has been
delegated to you.

       “7. You will request permission of your supervisor before you engage in any
action which arguable would be prohibited by 1, 2, 3, 4, 5 and 6 above, and you will
comply with my response to your request.

       “8. You will not aid or abet others to do that which would be prohibited by 1-7 for
you to do.”

                                              8
court granted the defendants’ motion to bifurcate and adjudicate the defendants’ religion
defenses first. Thereafter, defendants filed a motion for summary judgment or summary
adjudication on the ground the action is barred by the religion clauses of the United
States and California Constitutions.
       The trial court granted the motion for summary judgment. The court decided that
Simpson University was a religious organization, that Sumner was not a minister when
employed as the dean of Tozer Seminary, that the ministerial exception nevertheless
applied to Sumner’s claims, and that all of Sumner’s causes of action were barred by the
ministerial exception. With respect to both Sumner’s breach of contract cause of action
and the torts causes of action, the trial court reasoned that they are intertwined with the
employment decision of retaining or terminating Sumner, and all of the grounds for
terminating her relate to ecclesiastical governance. The court found all the causes of
action, “are so entangled with the organization’s right to select its Dean of the Seminary
and ecclesiastically govern its religious organization that it would be an impermissible
church/state entanglement for this court to allow the causes of action to proceed.”
                                       DISCUSSION
                                              I
     Simpson University is a Religious Group for Purposes of the First Amendment
       “The First Amendment provides, in part, that ‘Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof.’ . . . Both
Religion Clauses bar the government from interfering with the decision of a religious
group to fire one of its ministers.” (Hosanna-Tabor, supra, 565 U.S. 171, 181.) The
United States Supreme Court in Hosanna-Tabor agreed with lower courts that there is a
ministerial exception that precludes the application of legislation “to claims concerning
the employment relationship between a religious institution and its ministers.” (Id. at p.
188, fn. omitted.)



                                              9
       Among the factors courts consider when determining whether a party is a religious
organization are whether the organization is for profit, whether it produces a secular
product, whether it is affiliated with or supported by a church, whether its articles of
incorporation mention a religious purpose, whether a formal religious entity participates
in the management, whether the entity holds itself out as sectarian, whether worship is a
regular part of its activities, whether it includes religious instruction in its curriculum, and
whether the membership is made up of coreligionists. (EEOC v. Townley Engineering &
Mfg. Co. (9th Cir. 1988) 859 F.2d 610, 619; LeBoon v. Lancaster Jewish Comty. Ctr.
Ass’n (3d Cir. 2007) 503 F.3d 217, 226.)
       Sumner concedes that Simpson University is a nonprofit corporation, and that it
was organized as a Christian religious organization, but she argues it is only loosely
associated with the C&MA, and that it has moved along a continuum from a religious to
a secular institution. We agree with the trial court that on the facts presented, it is
undisputed that Simpson University is a religious organization.
       Simpson University has a formal, written affiliation with C&MA “in connection
with the conduct of its Christian ministry activities[.]” The bylaws of Simpson
University state that it is “a Christ-centered learning community” that is “committed to
the worldwide work of The Christian and Missionary Alliance and shall operate within
the framework of the policies of higher education as stated by The Christian and
Missionary Alliance. [Simpson University] shall encourage the attendance of Christian
and Missionary Alliance students and others who want to pursue Christian Education.”
Simpson University’s bylaws provide that it “shall only employ individuals who: (a)
profess a personal belief in Jesus Christ as personal Savior; and (b) are active members of
a local Christian church.” Employees must participate in Christian services sponsored by
Simpson University, refrain from behavior that detracts from biblical standards as
determined by Simpson University, and be able and willing to fulfill other ministry



                                              10
functions. Simpson University is incorporated as a California nonprofit religious
corporation.
       Moreover, courts are generally in agreement that private, religious schools are a
religious organization for purposes of the ministerial exception. In Petruska v. Gannon
Univ., supra, 462 F.3d 294, the Third Circuit held a private Catholic diocesan college
was a religious institution for purposes of the ministerial exception. In Kirby v.
Lexington Theol. Seminary (Ky. 2014) 426 S.W.3d 597 (Kirby), the Kentucky Supreme
Court held that a seminary was a religious institution under the ministerial exception.
Likewise, EEOC v. Southwestern Baptist Theological Seminary (5th Cir. 1981) 651 F.2d
277, held that a seminary owned, operated, and controlled by the Southern Baptist
Convention was a religious institution. In California, Hope Internat. University v.
Superior Court, supra, 119 Cal.App.4th at page 724, held that a university affiliated with
the Church of Christ was a religious institution, and Schmoll, supra, 70 Cal.App.4th
1434, held that a university affiliated with the Christian church, Disciples of Christ, was a
religious organization. Finally, the United States Supreme Court held a Lutheran school
“offering a ‘Christ-centered education’ to students in kindergarten through eighth grade,”
was a religious organization. (Hosanna-Tabor, supra, 565 U.S. at p. 177.)
       Considering the foregoing authority, we have no doubt that Simpson University
qualifies as a religious organization for purposes of the ministerial exception.
                                             II
           Sumner Was a Ministerial Employee for Purposes of the Exception
       The ministerial exception “applies to ministers and to a ‘variety of nonordained
employees with duties functionally equivalent to those of ministers.’ ” (Hope Internat.
University v. Superior Court, supra, 119 Cal.App.4th at p. 734.) The Supreme Court has
refused to adopt a rigid formula for deciding when an employee qualifies as a minister.
(Hosanna-Tabor, supra, 565 U.S. at p. 190.)



                                             11
       Hosanna-Tabor, supra, 565 U.S. at pages 191-192, found it significant that the
plaintiff was held out by the school as a minister, held herself out as minister, and had the
title of minister, which involved significant religious training. Also significant were the
plaintiff’s job duties, which reflected a role in conveying the message of the church and
in carrying out its mission. By contrast, Sumner was not a C&MA minister, but her
position as dean required her to be licensed with the C&MA, and required a doctorate in
ministry or a related field. Her job duties included teaching courses in religion and
promoting the seminary through public appearances, including preaching.
       Hope Internat. University v. Superior Court, supra, 119 Cal.App.4th at pages 736-
737, noted that although education presents more conceptual difficulties when
determining whether an employee is a minister for purposes of the exception, “where the
school itself is a seminary—that is, exclusively preoccupied with religion and the training
of a religion's own clergy as distinct from more general learning—the ministerial
exception has been categorically applied to faculty, ordained or not.”
       In Kirby, supra, 426 S.W.3d 597, 603, 611-612, the Kentucky Supreme Court
considered whether a tenured professor of a seminary was a minister for purposes of the
exception. Like the United States Supreme Court, the Kentucky Supreme Court refused
to adopt a rigid formula, but decided that even though the professor was not ordained, he
was a minister because of his extensive involvement in the seminary’s mission and
religious ceremonies, and the subject matter of his teaching.
       Part of Tozer Seminary’s mission is to equip men and women for worldwide
Christian service. Every faculty member of the seminary “is expected to live as a
disciple-making role model for students.” Sumner was hired to be the dean of the
theological seminary. Among the qualifications for the job were: (1) commitment to
Christ-centered Christian higher education and theological and missiological education;
(2) being licensed with the C&MA; (3) being able to develop and maintain relationships
with C&MA officers and personnel; (4) an earned doctorate in the ministry or related

                                             12
field and theological education teaching experience; and (5) agreement with the statement
of faith of Simpson University and the mission and values of the seminary.
       The job description for the Tozer Seminary dean listed 20 “essential functions.”
Those functions that could be considered religious functions were: (1) developing a
vision for Tozer Seminary; (2) developing the curriculum; (3) promoting the seminary
“through conferences, public appearances, preaching, and so forth[;]” (4) making contact
and visits with church leaders to promote the seminary program; (5) representing the
seminary at C&MA Council, and other C&MA conferences; (6) overseeing the “Spiritual
Formation and Field Education experiences of all seminary students[;]” and (7) teaching
classes. Sumner taught courses in biblical and theological studies.2 Her employment
contract noted that she would be given a housing allowance “in accordance with [the]
regulation for clergy,” and that for tax purposes she would be treated as self-employed
clergy. As indicated, Sumner was licensed as an official worker of the C&MA.
       It was within Sumner’s authority as dean of the seminary to change the
curriculum, and she added and deleted certain religious courses from time to time. All of
the courses offered at Tozer Seminary were religious in nature. Sumner had hiring
authority for all the faculty at the seminary. She considered religious issues in deciding
who to appoint as a faculty member. Sumner oversaw the team that provided the spiritual
formation experiences of all seminary students. Prior to becoming dean, Sumner earned
a Ph.D. in theology. In an application for alliance ministry that Sumner filed with the
C&MA, she claimed that God had given her to be an evangelist, pastor, and teacher. She
claimed her spiritual gifts included evangelism, leadership, teaching, and pastoring.




2      Sumner taught the following seminary courses: (1) Old Testament; (2) God
Revelation and Humanity; (3) Christ the Spirit and the Church; (4) Events in Church
History; (5) Pursuing Wisdom; and (6) Church and Society.

                                            13
       We conclude that even if many of Sumner’s duties were administrative in nature,
the school she was hired to administrate was “exclusively preoccupied with religion and
the training of a religion’s own clergy as distinct from more general learning . . . .”
(Hope Internat. University v. Superior Court, supra, 119 Cal.App.4th at p. 737, italics
omitted.) She was the visionary leader of the school, and was expected to demonstrate
the values of Simpson University, which were largely religious in nature. As the leader
of a school whose purpose was to offer a degree for pastors and ministry leaders seeking
ordination, Sumner was a minister for purposes of the exception.
                                             III
                                 Contract Cause of Action
       Hosanna-Tabor held that the ministerial exception barred a suit alleging
discrimination in employment under antidiscrimination laws. (Hosanna-Tabor, supra,
565 U.S. at p. 188.) “The purpose of the exception is not to safeguard a church's decision
to fire a minister only when it is made for a religious reason. The exception instead
ensures that the authority to select and control who will minister to the faithful--a matter
‘strictly ecclesiastical,’ Kedroff [v. St. Nicholas Cathedral of Russian Orthodox Church
(1952)] 344 U.S. [94], 119 [97 L.Ed. 120, 138], --is the church’s alone.” (Id. at pp. 194-
195, fn. omitted.) Sumner initially asserted a cause of action for discrimination and
harassment on the basis of gender, but has since dismissed that cause of action.
However, Hosanna-Tabor specifically stated that it expressed “no view on whether the
exception bars other types of suits, including actions by employees alleging breach of
contract or tortious conduct by their religious employers.” (Id. at p. 196.)
       Prior to Hosanna-Tabor, one California Appellate Court held that the ministerial
exception prevented the court from deciding a cause of action for breach of an implied
employment contract to terminate only for good cause. (Schmoll, supra, 70 Cal.App.4th
at pp. 1437, 1444.) Schmoll, who was a minister and chaplain of Chapman University,
had her hours reduced, ostensibly because of budget constraints. (Id. at p. 1436.)

                                             14
Schmoll asserted the action was not financially motivated, but was in retaliation for
telling school administrators about student complaints of sexual harassment by faculty.
(Ibid.) The court held that the ministerial exception prevented it from deciding Schmoll’s
Government Code section 12940 (Fair Employment & Housing Act) claim because it
would require the court to inquire into the good faith of the school’s reason for cutting
back Schmoll’s hours. (Schmoll, at pp. 1440-1441.) The court held that it could not
decide Schmoll’s breach of implied contract to terminate only for good cause for the
same reason. (Id. at p. 1444.) “[T]he court may no more examine the university’s
reasons for cutting back Schmoll’s hours than it may supervise the content of the
religious doctrine she expounds.” (Ibid., fn. omitted.) However, in another case the same
court acknowledged that churches exist within the civil community, and “are as amenable
as other societal entities to rules governing property rights, torts and criminal conduct.”
(Higgins v. Maher (1989) 210 Cal.App.3d 1168, 1170.)
       Other non-California cases have held that a contract action is not barred if
interpretation of the contract does not require the court to resolve a religious controversy.
In Minker v. Baltimore Annual Conference of United Methodist Church (D.C. Cir. 1990)
894 F.2d 1354 (Minker), a minister sued his church for age discrimination and breach of
contract. The district court granted the church’s motion to dismiss, but the appellate
court, while agreeing that the minister’s age discrimination claim was properly dismissed,
held that one of the minister’s contract claims could go forward. The contract claim that
was properly dismissed was based on the church’s breach of an alleged agreement set
forth in the church’s Book of Discipline, which provided that the church would make
appointments without regard to, inter alia, age. (Id. at p. 1358.) The court held that it
could not interpret or enforce this provision without running afoul of the First
Amendment. (Ibid.) “The scope of the Church’s purported duty to not discriminate in its
ministerial appointments will inevitably require interpretation of provisions in the



                                             15
Discipline that are highly subjective, spiritual, and ecclesiastical in nature.” (Id. at p.
1359.)
         But, the minister also asserted an agreement to provide him with a suitable
pastorship at the earliest possible time. (Minker, supra, 894 F.2d at p. 1358.) The court
stated: “A church is always free to burden its activities voluntarily through contracts, and
such contracts are fully enforceable in civil court.” (Id. at p. 1359.) The court noted that
the Supreme Court has specified that courts may always resolve contracts governing
“ ‘the manner in which churches own property, hire employees, or purchase goods.’ ”
(Ibid., quoting Jones v. Wolf (1979) 443 U.S. 595, 606 [61 L.Ed.2d 775].) “Even cases
that rejected ministers' discrimination claims have noted that churches nonetheless ‘may
be held liable upon their valid contracts.’ ” (Ibid., quoting Rayburn v. General
Conference of Seventh-Day Adventists (4th Cir. 1985) 772 F.2d 1164, 1171.) The court
refused to dismiss the contract claim, stating, “the first amendment does not immunize
the church from all temporal claims made against it.” (Id. at p. 1360.) However, the
court stated that the district court could grant summary judgment if in attempting to prove
the minister’s case, it was forced to inquire into matters of ecclesiastical policy as to the
contract claim. (Ibid.)
         Likewise, in Petruska v. Gannon Univ., supra, 462 F.3d 294, a university chaplain
brought an action for discrimination, fraudulent misrepresentation, and breach of contract
after she submitted her resignation on the belief she was about to be fired, and after the
university had demoted her. (Id. at pp. 301-302.) The court held that the ministerial
exception barred Petruska’s discrimination claims, but not her fraudulent
misrepresentation or contract claims. (Id. at pp. 309-312.) As to her contract claim, the
court stated: “On its face, application of state contract law does not involve government-
imposed limits on [the university’s] right to select its ministers: . . . Enforcement of a
promise, willingly made and supported by consideration, in no way constitutes a state-
imposed limit upon a church's free exercise rights.” (Id. at p. 310.)

                                              16
       As to whether Petruska’s contract claim would result in an excessive government
entanglement with religion, the court stated that entanglement may be substantive or
procedural. (Petruska v. Gannon Univ., supra, 462 F.3d at p. 311.) “Therefore, courts
typically consider the character of the claim, the nature of the remedy, and the presence
or absence of a ‘direct conflict between the . . . secular prohibition and the proffered
religious doctrine.’ ” (Ibid.) The court made this analysis of Petruska’s contract claim:
“[T]he question is whether Petruska’s breach of contract claim can be decided without
wading into doctrinal waters. . . . Petruska’s breach of contract claim ‘do[es] not
inevitably or even necessarily lead to government inquiry into [Gannon’s] religious
mission or doctrines.’ [Citation.] Resolution of this claim does not turn on an
ecclesiastical inquiry—or, at least not at the outset. If Gannon’s response to Petruska’s
allegations raise issues which would result in excessive entanglement, the claims may be
dismissed on that basis on summary judgment.” (Id. at p. 312.)
       Finally, Sumner cites to a post Hosanna-Tabor case from the Supreme Court of
Kentucky, Kirby, supra, 426 S.W.3d 597, which held that breach of contract actions are
not foreclosed by the ministerial exception. The plaintiff, Kirby, was a tenured professor
at Lexington Theological Seminary. (Id. at p. 601.) Lexington’s faculty handbook
contained a detailed procedure for termination of tenured faculty, and provided tenured
faculty could only be dismissed for “ ‘moral delinquency, unambiguous failure to
perform the responsibilities outlined in [the faculty handbook], or conduct detrimental to
the Seminary.’ ” (Id. at p. 603.) Kirby was terminated for financial reasons, after which
he filed an action alleging breach of contract, breach of the implied duty of good faith
and fair dealing, and discrimination based on race. (Id. at p. 603.)
       Although the court held that the ministerial exception barred Kirby’s racial
discrimination claim pursuant to Hosanna-Tabor, it allowed the contract claim to go
forward because the enforcement of the contract did not arouse concerns of government
interference in the selection of the school’s ministers and the contract did not involve

                                             17
matters of ecclesiastical concern. (Kirby, supra, 426 S.W.3d at p. 615.) To the first of
these points the court opined that, “Contractual transactions, and the resulting obligations,
are assumed voluntarily. . . . [L]ike any other organization, a ‘church is always free to
burden its activities voluntarily through contracts, and such contracts are fully
enforceable in civil court.’ Surely, a ‘church can contract with its own pastors just as it
can with outside parties.’ ‘Enforcement of a promise, willingly made and supported by
consideration, in no way constitutes a state-imposed limit upon a church’s free exercise
rights.’ ” (Id. at pp. 615-616, fns. omitted.) The court held that it was not meddling in
the selection of ministers. (Id. at p. 616.) The seminary had voluntarily circumscribed its
own conduct by entering into the contract, and the contract could be enforced according
to its terms without breaching the institution’s autonomy. (Ibid.)
       As to whether applying the state’s contract law would involve excessive
government entanglement, the court stated that Kirby’s breach of contract claims did not
require an inspection or evaluation of church doctrine, but merely an application of
neutral principles of law. (Kirby, supra, 426 S.W.3d at p. 619.) The court emphasized
that the language of the contract regarding Kirby’s tenure rights was unambiguous and
did not require the court to “reach into church doctrine or polity.” (Id. at p. 620, fn.
omitted.)
       The court was, however, unwilling to pronounce contract claims categorically
outside the reach of the ministerial exception. (Kirby, supra, 426 S.W.3d at p. 620.)
Kirby’s claim was on a written contract with specific and unambiguous conditions.
(Ibid.) The outcome might be different if the contract involved church doctrine or
required a review of the religious qualification and performance of the minister. (Id. at
pp. 620-621 & fn. 96.)
       Although we agree with Schmoll that the ministerial exception would apply to an
implied agreement to terminate only for good cause if the cause asserted is religious in



                                              18
nature, to the extent that case stands for the proposition that all contract actions are barred
by the exception, we disagree.
       The stated reason for Sumner’s dismissal was insubordination. Insubordination is
specifically defined in the faculty handbook incorporated into Sumner’s employment
contract as: “the willful refusal to follow directives or perform work properly, as assigned
by a supervisor.” The stated instances of insubordination were: (1) several group emails
critical of university leadership that Sumner sent out, in violation of the written protocol
prohibiting such emails given to Sumner by Provost Clark and dated December 7, 2011;
and (2) sending other emails regarding campus operations that violated the protocol that
Sumner not act beyond the scope of her authority without the advance approval of her
supervisor. However, Sumner alleged she was never given any list of protocols by
Provost Clark or anyone else. Sumner’s argument was that if she never received the
protocols, she could not have been insubordinate for failing to follow them. This material
fact was not resolved by the summary judgment motion.
       Additionally, the faculty handbook provided faculty with certain grievance and
appeal rights in the event of termination, which Sumner alleged defendants breached by
failing to give her the process she was due. Whether she was given such process was not
resolved by the summary judgment motion. Sumner also claims defendants agreed to
reimburse her out-of-pocket expenses incurred following her first termination, and that
they breached this agreement.
       Sumner’s breach of contract action is not barred by the ministerial exception.
There is no dispute regarding the reason for Sumner’s termination. Sumner’s argument
with defendants’ stated reason for terminating her, insubordination, is that she could not
have been insubordinate because that would require her to have refused to follow an
order of her supervisor, and she was never given an order that she refused to follow.
Furthermore, Sumner’s actions that were claimed to have been insubordinate involved
sending emails to the Simpson University community regarding her prior termination.

                                              19
Reviewing Sumner’s contract cause of action will not require the court to wade into
doctrinal waters because review of the breach of contract claim does not require a review
of Sumner’s religious qualification or performance as a religious leader.3 Defendants
have never claimed to have terminated Sumner for religious reasons, only because she


3      Just before oral argument, respondents provided the court with six newly
published decisions citing Hosanna-Tabor. At oral argument, counsel for respondents
indicated these cases support the position that any breach of contract action, even if
unrelated to religious doctrine, would unconstitutionally impose on the church’s
protected ministerial decisions. We disagree with respondents’ characterization of these
cases.

        In Lee v. Sixth Mount Zion Baptist Church of Pittsburgh (3d Cir., Sept. 5, 2018,
No. 17-3086) __ F.3d __ [2018 WL 4212091], the court of appeals affirmed summary
judgment in the church’s favor on the pastor’s contract claim. The terms of the
employment contract established that the pastor could be removed for failing in the role
of spiritual leadership and furthering the mission of the church. (Id. at p. __ [2018 WL
4212091, p. *4.) The church claimed the pastor had breached the contract by failing to
provide adequate spiritual leadership, as demonstrated by decreased church contributions
and attendance during the pastor’s tenure. (Ibid.) While the court indicated a willingness
to expansively apply the ministerial exception to dismiss breach of contract claims, it’s
holding was circumscribed by the facts of the case before it. As such, the court held that
the pastor’s role “in causing decreased giving and reduced membership in the Church
requires a determination of what constitutes adequate spiritual leadership and how that
translates into donations and attendance—questions that would impermissibly entangle
the court in religious governance and doctrine prohibited by the Establishment Clause.”
(Id. at p. __ [2018 WL 4212091, p. *5].) Here, by contrast, the stated reason for
Sumner’s termination was insubordination, and there is no indication from the facts
presented that the resolution of the contract claims will involve church doctrine or
Sumner’s religious qualifications.

       Puri v. Khalsa (9th Cir. 2017) 844 F.3d 1152, 1162, does not assist defendants
because it held the ministerial exception inapplicable in that the positions the plaintiffs
asserted were being denied them were not ministerial positions. A case is not authority
for a proposition not considered. (People v. Avila (2006) 38 Cal.4th 491, 566.)

       Grussgott v. Milwaukee Jewish Day Sch., Inc. (7th Cir. 2018) 882 F.3d 655;
EEOC v. R.G. (6th Cir. 2018) 884 F.3d 560; Penn v. N.Y. Methodist Hosp. (2d Cir. 2018)
884 F.3d 416; and Fratello v. Archdiocese of N.Y. (2d Cir. 2017) 863 F.3d 190 did not
involve breach of contract claims.

                                             20
was insubordinate. Defendants voluntarily circumscribed their own conduct by entering
into the contract with Sumner, and the contract can be enforced without breaching the
institution’s religious autonomy. (See Kirby, supra, 426 S.W.3d at p. 616.)
                                                IV
                                         Tort Claims
       Sumner alleges three intentional tort claims: defamation, invasion of privacy, and
intentional infliction of emotional distress.
       Sumner’s defamation claim alleges that false statements were made regarding the
circumstances surrounding her first termination, and regarding the reasons and procedure
for her final termination. Her invasion of privacy claim alleged that defendant Larry
McKinney accessed her email account and shared the emails he found with his wife
Debbie McKinney, Doug Swinburne (a member of Simpson University’s board of
trustees), Brad Williams (Simpson University’s executive vice president), and Clark.
Sumner’s intentional infliction of emotional distress claim is simply based on her
termination.
       In Gunn v. Mariners Church, Inc. (2008) 167 Cal.App.4th 206, a worship director
at a conservative evangelical Christian church brought an action for defamation, invasion
of privacy, and intentional infliction of emotional distress after he was terminated for
being gay. The church’s policy was to confront anyone disqualified from leadership “and
to tell anyone in the church who was immediately affected by the particular leader’s
ministry of the reason for his or her disqualification from church leadership.” (Id. at p.
210.) In accordance with this practice, the church minister informed the congregation
that Gunn had been terminated “because he had ‘admitted to moral and sexual actions
which according to the Bible, are sin and disqualify him from leadership and ministry in
our church.’ ” (Id. at p. 211.) The minister told the congregation that Gunn “had been
‘caught in a sin,’ had admitted to ‘moral and sexual actions that are sin,’ had suffered ‘a
breakdown in character,’ and was a ‘broken man.’ ” (Id. at p. 216.) Gunn also

                                                21
complained that individual defendants had falsely stated that Gunn had been asked
repeatedly if he were gay, and he had lied and said he was not. (Ibid.) He claimed his
privacy was invaded when the church staff and congregation were informed of his
homosexuality after he had been terminated. (Id. at p. 214.) The court held that the
determination of the truth of Gunn having sinned or being disqualified from leadership
were not actionable because the determination would require a finding of what is or is not
moral or sinful within the beliefs of the church. (Ibid.)
       As to the other statements and actions, the court held the ministerial “exception
applies to ‘otherwise actionable claims of defamation and invasion of privacy, when
based on statements “related to the hiring, firing, discipline or administration of clergy.”
[Citation.]’ [Citation.] And that would encompass posttermination acts if they were part
of the process of termination.” (Gunn v. Mariners Church, Inc., supra, 167 Cal.App.4th
at p. 217.) The ministerial exception applies where the acts and statements are “ ‘part and
parcel’ ” of the termination. (Ibid.)
       Likewise in Higgins v. Maher, supra, 210 Cal.App.3d 1168, the court sustained
the defendants’ demurrer to claims of defamation, invasion of privacy, and intentional
and negligent infliction of emotional distress. Higgins, a Roman Catholic priest, sued a
Roman Catholic diocese and its bishop, Maher, after Higgins was removed from his
church post and responsibilities. (Id. at pp. 1170-1171.) The allegations were that the
Bishop accused Higgins of “social misconduct” and removed him in the presence of other
priests, which was in violation of canon law, and authored a memorandum accusing
Higgins of solicitation. (Id. at p. 1171.) After Higgins underwent a program of
rehabilitation within the church, including electroshock therapy, he attempted to work in
other church settings, but the church and Maher released information about his therapy
and his past, causing him to lose those positions. (Id. at p. 1172.)
       In considering Higgins’s tort claims, the court refused to become involved because
the actions of defaming Higgins, violating his privacy, and causing him emotional

                                             22
distress were “part and parcel of the Bishop’s administration of his ecclesiastical
functions.” (Id. at p. 1176.) The court held that the accusations against Higgins
pertained “directly to the ecclesiastical functions of the church.” (Ibid.) The torts were
“inseparable parts of a process of divestiture of priestly authority.” (Ibid.) The court
stated that although some torts cannot be perpetrated with civil impunity, such as battery
or false imprisonment, in the context of the facts presented, the torts claimed were
“simply too close to the peculiarly religious aspects of the transaction to be segregated
and treated separately--as simple civil wrongs.” (Ibid.) “The making of accusations of
misconduct; the discussion of same within the order; the recommendation of
psychological or medical treatment; the infliction, whether intentionally or negligently, of
emotional distress -- these are all activities and results which will often, if not usually,
attend the difficult process by which priestly faculties are terminated. If our civil courts
enter upon disputes between bishops and priests because of allegations of defamation,
mental distress and invasion of privacy, it is difficult to conceive the termination case
which could not result in a sustainable lawsuit.” (Ibid.)
       We find the rationale of Higgins v. Maher persuasive. The ministerial exception
would become meaningless if the types of conduct alleged here were allowed to be
actionable. The statements that were alleged to have been defamatory, the invasions of
privacy, and the actions causing distress were all “part and parcel” of the reasons for and
process of terminating Sumner’s employment. It is true that the reasons given for
terminating Sumner were not strictly religious. Nevertheless, “ ‘the . . . First Amendment
protects the act of a decision rather than a motivation behind it. In these sensitive areas,
the state may no more require a minimum basis in doctrinal reasoning than it may
supervise doctrinal content.’ [Citation.]” (Schmoll, supra, 70 Cal.App.4th at p. 1440.)




                                              23
Were we to allow the acts taken in terminating Sumner to be framed as tortious acts, we
would render the ministerial exception meaningless.4
                                              V
                                   Evidentiary Objection
       Defendants objected to the admission of the declaration of Sumner’s husband, Jim
Sumner. He declared that he had attended a faculty meeting following Sumner’s first
termination, at which Simpson University’s legal counsel had stated that Sumner’s
contract was binding. Defendants objected on the grounds the declaration was irrelevant,
was inadmissible hearsay, was a legal conclusion, and was a lay opinion. The trial court
sustained the objection without explanation. Sumner argues the declaration is relevant to
her state of mind in entering into another contract, and is not hearsay because it was an
authorized or adoptive admission, (Evid. Code, §§ 1221, 1222.) Defendants argue the
declaration was irrelevant because of the ministerial exception.
       It is possible the trial court excluded the evidence as irrelevant, since the sole basis
of the summary judgment was the ministerial exception. Because we hold the ministerial
exception does not bar Sumner’s contract cause of action, and because we cannot know
the trial court’s ground for sustaining the objection, we conclude the objection should be
overruled without prejudice to being raised again in light of the single cause of action
going forward.




4       Sumner also argues the trial court treated the ministerial exception as a
jurisdictional bar rather than an affirmative defense. We disagree. The difference is
whether the court considers a plaintiff’s allegations and asks whether the allegations and
evidence entitle the plaintiff to relief, or whether the court decides it does not have the
power to hear the case. (Hosanna-Tabor, supra, 565 U.S. at p. 195, fn. 4.) The trial
court did not question its power to hear the case. Rather it decided that given the
allegations and the undisputed facts, Sumner was not entitled to relief.

                                              24
                                      DISPOSITION
       The summary adjudication of Sumner’s breach of contract cause of action is
reversed. The summary adjudication of Sumner’s other causes of action is affirmed. The
parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a).)



                                                   /s/
                                                 Blease, Acting P. J.


We concur:



  /s/
Butz, J.



  /s/
Renner, J.




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