THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
CHURCH OF SCIENTOLOGY OF CALIFORNIA,
MARY SUE HUBBARD,
APPELLANTS' OPPOSITION TO RESPONDENT'S
permission to file a brief herein, and for an extension of 90
days in which to file such a brief. Appellants. have had no
objection to Mr. Armstrong filing a brief in this matter, and,
indeed, have communicated that fact to Mr. Armstrong's counsel
of record herein. Appellants do object to Mr. Armstrong's
dilatory tactics in not filing a brief on time, apparently
dismissing his counsel of record while the appeal is pending,
and then seeking a further delay of 90 days in which to file a
Mr. Armstrong makes reference to a document entitled
settled the plaintiffs' claims for return of documents and
injunctive relief and Mr. Armstrong's cross-claim for damages,
but left unsettled the plaintiffs' claims for nominal damages
for intrusion on privacy, conversion and breach of confidence.
Mr. Armstrong claims that a provision of that agreement
prohibits him from responding to appellants' brief in this case.
Mr. Armstrong's position is incorrect.
this case had been fully briefed and argued and was awaiting
decision by this Court. All parties to this case contemplated
that this Court would render a decision on the merits of the
appeal. In the Settlement Agreement, Mr. Armstrong waived the
right to take any further appeals from the decision of this
Court in the event this Court reversed the judgment of the
Superior Court. Mr. Armstrong further agreed not to file any
new briefs if the Church should take an appeal to the California
Supreme Court. In such an event, of course, Mr. Armstrong's
previously filed briefs in this Court would have been considered
by the California Supreme Court. See California Rules on
Appeal, Rule 29.3.
contemplated that this Court would dismiss the Church's prior
appeal for lack of appellate jurisdiction, 1 thereby requiring
the Church to renotice and reperfect its appeal. Indeed after
renoticing this appeal, the Church filed a motion to have the
appeal decided on the basis of the prior briefs and oral
argument, which motion was denied by this Court on April 22,
1987. There then was a delay of over two years until this Court
established a briefing schedule for the new appeal. Appellants
filed their brief on this new appeal on December 18, 1989, which
brief largely incorporated from appellants' prior brief the
substantive arguments still at issue in this case.
appeal, appellant's counsel communicated by telephone and letter
with Michael Tabb, Esq. of the firm of Flynn, Sheridan & Tabb,
who are counsel of record for Mr. Armstrong. Counsel for
appellants and Mr. Tabb were in agreement that Mr. Armstrong
could and would respond to appellants' brief herein, most likely
by filing a motion to incorporate relevant sections of the brief
previously filed by Mr. Armstrong in the Church's earlier
appeal, which had been dismissed. Counsel for appellants even
went so far as to identify for Mr. Tabb, for his review and
consideration, those sections and pages of Mr. Armstrong's
previous brief which remained relevant to the present appeal.
1An issue which had neither been briefed nor raised at oral
either a brief or a motion incorporating his prior brief,
undersigned counsel for appellants telephoned Mr. Tabb on
several occasions to determine why Mr. Armstrong had not
responded to appellants brief. After several conversations Mr.
Tabb informed undersigned counsel that Mr. Armstrong had fired
Flynn, Sheridan & Tabb and would be proceeding with new counsel.
Undersigned counsel inquired as to the identity of new counsel,
so that he could contact new counsel to determine whether and
when a brief or motion would be filed by Mr. Armstrong. Mr.
Tabb replied that he did not know the identity of new counsel.
that he needed leave of court to file a brief or to adopt his
prior brief, since it was clear from the discussions between
opposing counsel that counsel for appellants recognized that Mr.
Armstrong would file, and had no objection to such filing.
Rather, it would appear that Mr. Armstrong is attempting to
divert the Court from proceeding with the present appeal, and to
seek an unconscionable delay in filing a brief on the merits.
[Respondent's] brief is not on file within 30 days after the
date of this notice, or good cause shown for relief from
default, the appeal would be submitted for decision upon the
record on the appellants' opening brief. Mr. Armstrong has not
shown good cause for any further extension of time. His brief,
or motion to incorporate relevant sections of his prior brief,
therefore should be ordered to be filed by no later than March
Dated: March 6, 1990
CERTIFICATE OF SERVICE
Simone Leak, being duly sworn deposes and says,
the addresses designated by said attorneys for that
Sworn to before me