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CONTOS & BUNCH
5855 Topanga Canyon Boulevard
Suite 400
Woodland Hills, California 91367-4694
Telephone (818) 716-9400

Attorneys for Defendant and
Cross-Complainant GERALD ARMSTRONG

[stamped]

ORIGINAL FILED

NOV 5 - 1986

COUNTY CLERK

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

CHURCH OF SCIENTOLOGY OF
CALIFORNIA, a California
Corporation;

    Plaintiff,

vs.

GERALD ARMSTRONG, et al.,

    Defendants.


AND RELATED CROSS-ACTIONS

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No. C 420 153

[Severed Action]

OPPOSITION OF CROSS-COMPLAINANT
GERALD ARMSTRONG TO MOTION FOR
SUMMARY ADJUDICATION OF ISSUES;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF;
DECLARATION OF GERALD ARMSTRONG

DATE: November 19, 1986
TIME: 9:00 a.m.
DEPT: 57

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COMES NOW, cross-complainant Gerald Armstrong, and

submits the following Memorandum in opposition to the Motion

for Summary Adjudication of Cross-Defendant Church of

Scientology of California:

///

///

///

///

///

 

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I

THE FIRST CAUSE OF ACTION FOR

FRAUD IS NOT BARRED BY THE

STATUTE OF LIMITATIONS

 

Cross-defendant contends that Armstrong's fraud

allegation as to the confidentiality of auditing and the

"religious" status of Scientology are barred by the three

year statute of limitations. Cross-defendant, however, has

taken a "blinders" approach in its argument, choosing to

look at a few statements of Armstrong and avoiding all other

evidence.

If the court looks at the entire picture, it is

clear that Armstrong could not have brought suit prior to

the time he left Scientology in December 1981, and that his

cause of action is therefore not barred by the three year

statute.

 

A. THE ALLEGATIONS REGARDING CONFIDENTIALITY OF

AUDITING INFORMATION ARE NOT BARRED BY THE

STATUTE OF LIMITATIONS.

Cross-defendant's argument is based solely on

Armstrong's "admissions against interest" as contained in

his answers to interrogatories served in 1983 (See Exhibit

"A" to Motion, Interrogatory No. 16.)

Although Armstrong discovered, while he was in the

organization, that auditing folders were culled for

"crimes," he was mentally incapable of taking any action.

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Cross-defendant omits from its citation of Armstrong's

answers to interrogatories (See Exhibit "A" to Motion),

those portions of his answers wherein he describes his

broken will, his inability to control his own life, his

complete manipulation by the Organization, his feelings of

terror and the system of control and deprivation that was

exerted over him. (See Declaration of Gerald Armstrong

filed herewith, p. 9-12, paragraph 8- 9.)

At that time and until he left the Organization in

1981, Armstrong was wholly incapable of action against the

organization for a number of reasons.

First, as a member of Scientology, Armstrong was

made to sign waivers, non-disclosure and release bonds, as

well as staff contracts containing promises to forbear from

litigation. Attached hereto as Exhibit [M] is a Nondis-

closure and Release bond signed by Armstrong on March 18,

1977. At page 2 of Exhibit "M" it states:

 

". . . he/she (Obligor) will never

disclose any information, data, or

knowledge he/she has or will learn

about the organization of the

church, or any of the church's

affiliated churches, missions, or

organizations, including but not

limited to their internal struc-

tures, functions or activities, and

certain information which may be

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orally imparted to the Obligor in

the course of his/her having been a

staff member of the Church."

 

In the event of a disclosure, the obligor promises

to pay $10,000 to "the Church."

At trial of the complainant in this case, Armstrong

testified that he was ordered to sign several of such

documents while he was in the RPF (Rehabilitation Project

Force - the Scientology prison). At the time, he was under

a form of mind control sufficient to make him sign virtually

any document. Although the document was not explained to

him, he had heard that he would be obligated to pay $10,000

if he disclosed any information, data or knowledge about

Scientology. (A copy of said trial testimony of May 10,

1984, p. 1465-1466 is attached hereto as Exhibit [N]).

Second, as explained by Armstrong in his answers to

interrogatories, he was in the RPF from July 1, 1976 to

December 1, 1977, where he was "humiliated, degraded,

terrorized and defrauded" to the extent that he "lost self

respect and rationality." (See Exhibit "A" to Motion, p.

23).

It was during the years 1976 and 1977 that

Armstrong was forced to participate in culling of auditing

folders. However, because of his fear of reprisal, his

desire to believe in the good of the Organization, his total

manipulation by the system of reporting "overts" or critical

thoughts, and his understanding that he was responsible for

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payment of $10,000 as the result of a disclosure, Armstrong

was incapable of action. This incapability was the direct

result of the action and policies of cross-defendant.

The organization adhered to a strict system of

"ethics" and punishment. This is evidenced by a number of

Hubbard's policies, one of which is particularly applicable

here.

Policy Letter of 23 December 1965 entitled

Suppressive Acts; Suppression of Scientology and Sciento-

logists; The Fair Game Law, lists various "suppressive" acts

for which an individual becomes "Fair Game." Among those

are:

 

". . . testifying hostilely before

state or public inquiries into

Scientology. . . reporting or

threatening to report Scientology or

Scientologists to civil authorities

. . . bringing civil suit against

any Scientology organization or

Scientologist . . . testifying as a

hostile witness against Scientology

in public." (A copy of said Policy

Letter is attached hereto as Exhibit

"O." See p. 553.)

 

Armstrong was aware of this policy, and it added to

his fear that the organization would use Fair Game for any

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activity involving litigation. Direct evidence that

Scientology practiced its Fair Game policy against litigants

and critics, is shown by the treatment to which Armstrong

was and is subjected since the filing of his cross-

complaint.

Third, in staff contracts which Scientology members

are forced to sign, the organization routinely includes the

following language:

 

". . . I recognize, understand and

agree that in consideration for the

Church permitting me to become an

active participant pursuant to this

declaration, I shall not commence

any action or assert any claim

against either or both of them

(L. Ron Hubbard or Mary Sue

Hubbard), their heirs, successors,

or assigns, based on any matter

arising out of or in connection with

the Church . . ." (See Declaration

of Religious Commitment and Appli-

cation for Active Participation on

Church Staff, attached hereto as

Exhibit [P], p. 3.)

 

There is no question but that the intimidation

tactics used by the Organization to control and manipulate

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members include the representations that one cannot sue the

Organization or the Hubbards for fear of the Fair Game

doctrine. It is in this climate and pursuant to these

policies that Armstrong became mindless, following the

directives and orders of superiors, incapable of rational

choice.

Mind control was the basis for reversal of the

dismissal of a complaint for personal injury on statute of

limitations grounds in Roney v Siri Singh Sahib Harbhajan

Singh Yogi, 103 N.M. 89, 703 P.2d 186 (1985) (A copy of the

opinion is attached as Exhibit [Q].)

Roney involved a woman who, as a member of the Sikh

Dharma Brotherhood, underwent a tubal ligation rendering her

sterile. She was told that her problems were centered on

her ovaries which had to be removed. It was not until a

year and a half after she left the Sikhs that she regained

her "free will and comprehension" allowing her to file suit.

Id. at 188. By that time, the three year statute of

limitations had expired.

In reversing the trial court's dismissal of the

complaint, the Court of Appeals of New Mexico held:

 

"Because she alleges that the

continuation of her 'lack of free

will and comprehension' was a direct

and proximate result of defendants'

mind and body control techniques,

she is, in effect, also alleging

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that she could not have reasonably

known her cause of action within the

statutory period." Id. at 188.

 

Although Roney was venued in New Mexico, Armstrong

cites it here because of the striking analogy to the

circumstances of his mind control by Scientology. Like the

plaintiff in Roney, Armstrong did not "reasonably" know his

causes of action until he left the Organization in 1981

because he was bereft of his free will. Until then, he

labored under the false representations and mind control

tactics of cross-defendant and Hubbard, incapable of

rational thought.

His failure to act upon his causes of action is a

direct result of the intimidating, harassive and wrongful

conduct he underwent while a member of cross-defendant.

Cross-Defendant should not now be allowed to assert the

statute of limitations bar where the delay in filing suit

was a direct result of cross-defendant's intimidation and

manipulation of Armstrong.

In that regard, although cross-defendant argues

that Armstrong should have investigated the misrepre-

sentations with respect to the confidentiality of auditing,

it was cross-defendant who prevented Armstrong from doing so

through the conduct outlined above and described more fully,

infra, under subsection B.

Thus, the case of Miller v. Bechtel Corp. (1983) 33

Cal.3d 868, 191 Cal.Rptr. 619 cited by cross-defendant is

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not applicable. In Miller, plaintiff failed to investigate

her cause of action where she had every opportunity to do so

and was in contact with her attorney. Clearly, the circum-

stances of this case are far from what occurred in Miller.

B. CROSS-DEFENDANT MUST BE ESTOPPED FROM

ASSERTING A STATUTE OF LIMITATIONS DEFENSE IN

THAT CROSS-DEFENDANT INDUCED THE DELAY THROUGH

ITS OWN WRONGFUL CONDUCT.

As set forth in Armstrong's answer to Interrogatory

No., propounded by cross-defendant, Armstrong lived under

tremendous intimidation tactics designed to destroy his

will. 16 (See Exhibit "A" to motion, pp. 21-30.) In 1976,

he was locked up and maintained under guard for three weeks

by the G.O., during which time he was forced to write up

lists of his "crimes". He was then sent to the RPF in 1976

where he remained for seventeen months. In the RPF he was

humiliated, degraded and terrorized by being treated like a

criminal and denied access to all outside contact. He was

forced to work for long hours without sufficient rest or

sleep.

Armstrong saw those who asked to leave the RPF

locked up and abused, forced to sign lists of "crimes". He

also signed a number of non-disclosure and release bonds

promising not to divulge activities of Scientology.

In 1978, Armstrong was again assigned to the RPF,

where he remained through the spring of 1979. During this

time, he was forced to do manual labor for sixteen hours per

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day over several months and was paid less than $9.00 per

week. Armstrong slept in cramped conditions and ate only

leftover food. He was punished, deprived of contact with

the outside world and completely manipulated and controlled.

It was in this atmosphere that Armstrong was forced

to participate in the culling of auditing folders and forced

to allow his own folders to be culled.

Based upon the harsh treatment and punishments

meted out for "crimes," based upon the non-disclosure and

release bonds he signed and based upon the written policies

of the Organization dealing with suppressive persons,

Armstrong could not act as a reasonable person. His will

had been broken and his rational thought gone.

It was not until 1981, when he began reviewing

voluminous documents on the life of Hubbard that he slowly

came to his senses, culminating in his departure from

Scientology in December 1981.

As a result of the threats, physical and emotional

abuse, and intimidation incurred by Armstrong at the hands

of cross-defendant, he was prevented from bringing suit.

Clear issues and questions of fact arise which would make

summary judgment inappropriate.

California case law supports the proposition that a

defendant may be estopped to plead the statute of limita-

tions where the defendant induced the plaintiff by fraud,

misrepresentations or deception from filing a timely action.

Moss v. Underwriters Report (1938) 12 Ca1.2d 266, 83 P.2d

503. The estoppel doctrine is one founded in equity where

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it is stated that "no man may take advantage of his own

wrong." Glus v. Brooklyn Eastern District Terminal (1979)

359 U.S. 231, 3 L.Ed. 2d 770, 79 S.Ct. 760. The court in

Glus further observed that the principle of estoppel has

been applied in many cases of both law and equity to bar an

inequitable reliance on the statute of limitation.

The purpose of the statute of limitations is to

provide repose and protect persons against the burden of

having to defend against stale claims. Wyatt v. Union

Mortgage Co. (1979) 157 Ca1.Rptr. 392, 598 P.2d 45. Here

there is no need to protect the cross-defendant since it is

the very culprit who fraudulently induced Armstrong from

bringing suit. Moreover, the threats and intimidations

continued even after Armstrong left the Organization when it

labelled Armstrong a "Suppressive Person" and sent private

investigators to his house to harass him and his wife, when

it surreptitiously and unlawfully videotaped him in 1984 and

when it continued to reveal portions of his auditing files,

among other things.

In Wyatt, supra, the court held that:

 

"Just as the statute of limitations

does not run against an action based

on fraud so long as fraud remains

concealed, so ought the statute to

be tolled even after fraud is

discovered, for so long as sheer

economic duress or undue influence

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embedded in fraud continues to hold

the victim in place."

 

It is clear from Armstrong's declaration and

answers to interrogatories that the fear and harassment

continues to date and is heightened by the fact that cross-

defendant has made blatant "revelations" from Armstrong's

auditing folders, failing to advise the court that the

majority of the "revelations" never occurred. This has

caused Armstrong extreme emotional distress.

Armstrong has established sufficient facts to show

that he was prevented from filing suit in this case because

of intimidating, threatening and coercive behavior of the

cross-defendant. Thus cross-defendant should be barred from

now taking advantage of its tortious conduct:

 

"A plaintiff's right to relief in

cases of fraud and deceit is not

dependent upon technical legal

definitions. The defendant, having

by fraud and deceit concealed

material facts and by misrepre-

sentations hindered the plaintiff

from bringing an action within the

statutory period is estopped from

taking advantage of his own wrong.

The statute of limitations was

intended as a shield for the

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defendant's protection against stale

claims, but he may not use it to

perpetuate a fraud upon a diligent

plaintiff." Pashley v. Pacific

Electric Co. (1944) 25 Ca1.2d 226,

153 P.2d 325.

 

C. CROSS-DEFENDANT CONTINUES TO VIOLATE ITS

REPRESENTATION THAT AUDITING FILES ARE

CONFIDENTIAL.

In the face of strenuous arguments made over the

past four years in this case that auding files are confi-

dential, cross-defendant allowed its attorneys to review,

copy and index Armstrong's auditing files. Cross-Defendant

also filed a document with the court wherein cross-defendant

allegedly cites incidents taken from the folders.

(Armstrong declaration, pp. 1-2, paragraphs 3-4.)

Armstrong asked for the folders through discovery

to see whether they had been culled as he believes they

were. He did not ask for them so the contents could be

published by cross-defendant. There is no question that his

folders contain personal information. However, in its own

twisted way, cross-defendant, the "protector" of auditing

"sanctity," has taken the liberty of allegedly revealing

portions of the folders in a court filing. (Armstrong

declaration, pp. 5-7, paragraph 6.)

Another example of this continuing fraud is found

in the admissions contained in the B-1 materials produced by

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cross-defendant. The B-1 file shows conclusively that

Armstrong's auditing folders were culled after he left the

Organization in 1981. Armstrong did not learn of this

culling until the B-1 materials were made available to him

in 1985 during his testimony in the Christofferson case.

(Armstrong declaration, p. 7-9, paragraph 7.)

Armstrong never knew of the existence of B-1 files

kept on individuals while he was in Scientology. (See

Exhibit "A" to Motion, p. 29, lines 17-20.) He also had no

knowledge of the existence of GO 121669, the policy

regarding culling of auditing files (See Exhibit "A" to

motion, p. 9, lines 14-19). He discovered these matters

only after he left the Organization in 1981.

Scientology continued its fraudulent conduct toward

him after he left as evidenced by the information contained

in his B-1 file and in the court filing of alleged excerpts

from his auditing folder.

As long as cross-defendant continues to commit such

wrongful acts against Armstrong, his causes of action for

fraud, emotional distress, and breach of contract will not

accrue. Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773,

157 Cal.Rptr. 392, 598 P.2d 45.

D. THE FRAUD CAUSE OF ACTION CONTAINS NO

ALLEGATIONS OF "RELIGIOUS STATUS"

Cross-defendant argues that Armstrong was "aware"

of the "Church's scientific, non-religious status by

September, 1975." This argument makes no sense in that

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Armstrong has never alleged that Scientology was a religion.

To the contrary, Armstrong has alleged that Scientology held

itself out as a scientifically guaranteed process, designed

to cure all the ills and problems known to man. It is this

representation which Armstrong believes is fraudulent. The

testimony cited by cross-defendant in its Motion coincides

with Armstrong's allegations. (See Motion, p. 13.)

Armstrong testified that he joined Scientology on the basis

of the representation that Scientology was the "science of

knowing how to know," and not on the basis of any repre-

sentation that it was a religion. In fact, his testimony

clearly states that the "religious" cloak of Scientology was

just a "cover." Thus, cross-defendant's arguments make no

sense.

 

E. THE STATUTE OF LIMITATIONS DOES NOT BAR

ALLEGATIONS REGARDING THE BENEFITS OF AUDITING

BECAUSE THE MISREPRESENTATIONS WERE CONTINUING

IN NATURE.

Once again, cross-defendant tells only part of the

story when it argues that Armstrong had doubts as to the

"workability" of Scientology in November 1969.

Pursuant to the Declaration of Gerald Armstrong

filed herewith, cross-defendant used a "bait and switch"

approach when making representations regarding the benefits

of auditing. (Armstrong Declaration, p. 14, ln. 5-16.)

When Armstrong felt the auditing he was receiving did not

resolve problems, he was told that the resolution would

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occur at the level of "Clear." When it did not occur at the

level of "Clear," he was told it would occur at the level of

"OT III."

That is the typical tactic used by cross-defendant

to maintain control over and manipulate the will of members.

It is the proverbial "dangling carrot" that will be reached

with just a little more auditing and money.

Of course, it must be kept in mind that Armstrong

was always laboring under fear of reprisal or punishment for

any "overt" or critical thought regarding Scientology, the

Scientology process or the Hubbards. Thus, he was incapable

of investigating the "unworkability" of auditing.

It was only until a stroke of good fortune befell

him and he became Hubbard Archivist that he was slowly able

to piece together a picture of a fraud so massive that it

brought him back to rational thought and compelled him to

leave Scientology. He could never have performed this

investigation without the permission given to him by L. Ron

Hubbard following Armstrong's discovery of archive

documents.

Clearly, questions of fact exist as to the "bait

and switch" techniques used by cross-defendant to force

individuals into continuing the auditing process. Addi-

tional questions of fact exist as to the system of ethics

and punishment used by cross-defendant to drive members into

submission, taking from them their free and rational

thought.

///

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II

THE SECOND CAUSE OF ACTION

FOR INTENTIONAL INFLICTION

OF EMOTIONAL DISTRESS IS

NOT PARTIALLY BARRED BY

THE STATUTE OF LIMITATIONS

 

Cross-Defendant makes the same argument as to the

second cause of action that it set forth with respect to the

first cause of action for fraud. Cross-Defendant seeks to

bar those allegations of the second cause of action

regarding the violation of auditing confidentiality

allegedly known to Armstrong by 1977.

Armstrong thus incorporates by reference all of the

arguments made under Section I of this opposition, supra.

 

III

THE FOURTH CAUSE OF ACTION

FOR BREACH OF CONTRACT IS

NOT PARTIALLY BARRED BY

THE STATUTE OF LIMITATIONS

 

Again, cross-defendant makes the same argument as

contained under the arguments for the first cause of action

for fraud. Cross-Defendant seeks summary adjudication as to

the allegations regarding the benefits of auditing, the

status of Scientology and the confidentiality of auditing

folders.

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Armstrong thus incorporates by reference all of the

arguments made under Section I of this opposition, supra.

 

IV

CONCLUSION

 

Based upon the foregoing, it is respectfully

submitted that numerous questions of fact exist as to the

treatment of Armstrong by the Organization in the form of

punishment, intimidation, threats and harassment; the

resulting state of Armstrong's mind and his inability to

function as a reasonably prudent or rational person; the

written policies of the organization linking suppressive

acts to litigation and the resulting punishments therefor;

the effect of the non-disclosure and release bonds as well

as the arguments to forbear from litigation; and the general

attitude of cross-defendant to anyone slightly critical of

Scientology or Hubbard to have committed "crimes" and

"overts," with its attendant effect on Armstrong and his

inability to file suit.

Additionally, there are the continuing acts of

cross-defendant in violating the confidentiality of auditing

folders which it has so vehemently maintained are sacro-

sanct, and the continuing tortious conduct of cross-

defendant in harassing Armstrong and intentionally causing

him emotional distress.

///

///

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It is thus respectfully requested that the motion

for summary adjudication be denied.

DATED: November 5 , 1986

CONTOS & BUNCH

By: [signed]
JULIA DRAGOJEVIC
Attorneys for Defendant
and Cross-Complainant
GERALD ARMSTRONG

 

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Exhibit [M]
Non-disclosure and Release Bond [.pdf]

Exhibit [N]
Transcript re Bond

Exhibit [P]
Cult Employee Contract [.pdf]

Exhibit [Q]
103 N.M. 89, 703 P.2d 186 (1985) [.pdf]

   

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