IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
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
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
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
PROOF OF SERVICE
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.
COURT OF APPEAL OF THE STATE OF CALIFORNIA
ERIC M. LIEBERMAN, ESQ.
MICHAEL LEE HERTZBERG, ESQ.
MICHAEL J. FLYNN, ESQ.
JULIA DRAGOJEVIC, ESQ.
CLERK OF THE SUPERIOR COURT
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