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  [Stamp]
COURT OF APPEAL - SECOND DIST.
F I L E D
FEB 28 1990
ROBERT N. WILSON Clerk
[Stamp] MAR 9 1990
[Handwritten] Permission to file
respondent's brief
GRANTED
Time to file respondent's
brief extended to 60 days
after date of this order.
[Signed] ?? J. Danielson ??

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

CHURCH OF SCIENTOLOGY OF
CALIFORNIA, et al.,

         Plaintiffs-Appellants,

        v.

GERALD ARMSTRONG,

        Defendant-Respondent.

MARY SUE HUBBARD

        Intervenor.


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Case No. B025920

LASC No. C420153

RESPONDENT'S PETITION
FOR PERMISSION TO FILE RESPONSE
AND FOR AN EXTENSION OF TIME TO
FILE RESPONSE

    I am the respondent Gerald Armstrong. I am petitioning this court at

this time for permission to file a respondent's brief in this appeal and for an

extension of time in which to file a respondent's brief or other appropriate document.

    1. Permission to File:

    The unusual need for this court's permission to file a respondent's

brief arises from a condition contained in a document entitled MUTUAL

RELEASE OF ALL CLAIMS AND SETTLEMENT AGREEMENT signed by me

December 6, 1986, a copy of which is attached hereto in a sealed envelope as

Exhibit [A]. I have no objection to this document being unsealed.

Para. 4A of the settlement agreement allowed appellants to maintain

their appeal, no. B005912, which had been filed in 1984, although the case

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was ostensibly settled. Para. 4B contains the condition that I "waive any

rights [I] may have to oppose (by responding brief or any other means) any

further appeals taken by the Church of Scientology of California."

    I have recently become convinced that it would be a fraud upon this

court to not advise it that the respondent is prohibited from filing a brief. I

am also now convinced that my right to file a respondent's brief is not

something that can be taken away by such a settlement agreement.

    I have discovered, moreover, that "the failure to file respondent's

brief imposes an unnecessary burden on [the] court, and at least raises the

inference that respondent concedes that the appeal is meritorious," Sowell v.

Sowell, 164 Cal.App.2d 371, 330 P.2d 391 (1958), Yarbrough v. Yarbrough,

144 Cal.App.2d 610, 301 P.2d 426 (1956); that the court "may assume . . .

that the respondent has abandoned any attempt to support the judgment,

and. . . may also assume that the points made by the appellant are

meritorious," Roth v. Keene, 256 Cal.App.2d 725, 64 Cal.Rptr. 399 (1967);

and that the court "shall regard with disfavor the failure of a respondent in

any case to assist the court by means of an answering brief," James v. James,

125 Cal.App.2d 417, 270 P.2d 538 (1954).

    I am therefore requesting this court's permission to file a respondent's

brief, motion for dismissal or other responsive document.

    2. Extension of Time to File:

I received Appellants' Brief and Appellants' Supplemental Appendix

in Lieu of Clerk's Transcript from Flynn, Sheridan & Tabb on January 18,

1990. I have not yet received Appellants' Appendix.

    I am not an attorney and I am not represented by legal counsel in any

Scientology matters at this time. Neither Flynn, Sheridan & Tabb nor Contos

&Bunch, both of which firms represented me throughout the litigation of

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this case in the lower court, will be representing me in this appeal. It is my

intention to retain an attorney to represent me in this appeal if at all possible.

    Appellants had five and a half years from the date the trial court

issued its Decision to the date they filed their brief.

    Appellants have filed another appeal, entitled Church of Scientology of

California and Mary Sue Hubbard, Appellants, against Gerald Armstrong,

Defendant, Bent Corydon, Appellee, Civ. No. B 038975 in Division Four in the

Second Appellate District, which has its genesis in the same case underlying

this appeal, Super. Ct. No. C420153, and concerns many of the same factsand

issues as this appeal. I am at this time also petitioning the Division Four

Court for permission to respond in that appeal.

    There remain a number of issues springing from the settlement

agreement, appellants' actions in violation of the agreement, and appellants'

obstructive and threatening use of the agreement, which this court does not

have to consider in order to grant my petition, but which I will be

addressing as soon as possible by motion or other appropriate action in the

Los Angeles Superior Court, which retains, pursuant to clause 20 of the

settlement agreement, jurisdiction to enforce its terms.

    I therefore request 90 days from the date of this court's granting of

this petition in which to file a respondent's brief or other responsive

document.

DATED: February 20, 1990

Respectfully submitted

[signed]
GERALD ARMSTRONG

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Exhibit [A]
Mutual Release and Settlement Agreement 12-1986 [.pdf]

 

PROOF OF SERVICE

STATE OF CALIFORNIA

COUNTY OF ALAMEDA   
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    I am employed in the County of Alameda, State of California. I am

over the age of eighteen (18) years and not a party to the within action. My

business address is 7140 Buckingham Blvd., Berkeley, CA 90475.

    On February 20, 1990 I caused to be served the foregoing document

described as RESPONDENT'S PETITION FOR PERMISSION TO FILE RESPONSE AND FOR AN

EXTENSION OF TIME TO FILE RESPONSE on interested parties in this action by

placing a true copy thereof enclosed in a sealed envelope with postage

thereon fully prepaid in the United States mail at Oakland, California,

addressed to the persons and addresses specified on the service list attached.

Executed on February 20, 1990 at Oakland, California.


 

SERVICE LIST

COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
3580 Wilshire Blvd., Room 301
Los Angeles, California 90010

ERIC M. LIEBERMAN, ESQ.
RABINOWITZ, BOUDIN, STANDARD,
KRINSKY & LIEBERMAN, P.C.
740 Broadway, Fifth Floor
New York, New York 10003-9518

MICHAEL LEE HERTZBERG, ESQ.
275 Madison Avenue
New York, New York 10016

MICHAEL J. FLYNN, ESQ.
FLYNN, SHERIDAN & TABB
One Boston Place, 26th Floor
Boston, Massachusetts 02108

JULIA DRAGOJEVIC, ESQ.
CONTOS & BUNCH
5855 Topanga Canyon Blvd., #400
Woodland Hills, California 91367

CLERK OF THE SUPERIOR COURT
111 North Hill Street
Los Angeles, California 90012

  This document in .pdf format

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