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ANDREW H. WILSON, SBN 63209
SHAUNA T. RAJKOWSKI, SBN 148239
WILSON CAMPILONGO LLP
475 Gate 5 Road Suite 212
Sausalito, CA 94965

Telephone (415) 289-7100
Facsimile (415) 289-7110

Attorneys for Plaintiff and Judgment Creditor
CHURCH OF SCIENTOLOGY INTERNATIONAL

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF MARIN

CHURCH OF SCIENTOLOGY
INTERNATIONAL, a California
nonprofit religious corporation,

        Plaintiff,

vs.

GERALD ARMSTRONG,

        Defendant.


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CASE NO. 152229

SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER OF CONTEMPT

Date: December 27, 2000
Time: 9:30
Department: 6

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I. INTRODUCTION

    Plaintiff/Judgment Creditor Church of Scientology International ("CSI") applied

for and recieved an order directing Defendant/Judgment Debtor Gerald Armstrong

("Armstrong") to show cause why he should not be held in contempt of this Court,

pursuant to section 1209(a)(5) of the California Code of Civil Procedure, for Armstrong's

willful defiance of this Court's October 17, 1995 Order of Permanent Injunction (the

"Injunction"). Armstrong failed to appear or make any showing in opposition to that

made by Plaintiff. Under these circumstances, the Court should make the requested order

based on the showing made by Plaintiff. Plaintiff has provided conclusive proof that

Armstrong -- who has twice previously been found in contempt of the Injunction -- has

 
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continued to openly flout the authority of this Court, violating the Injunction issued by

this Court in numerous respects, including the following: (1) During the period February

20, 1998 to July 10, 2000, Armstrong made a total of 131 postings on the Internet, each of

which violated one or more provisions of the Injunction; (2) Armstrong traveled to

Clearwater, Florida and on December 5, 1999 spoke before a public gathering sponsored

by the Lisa McPherson Trust, a for-profit corporation, the purpose of which is to bring

about the destruction of the Scientology religion; and (3) Armstrong traveled to Tampa,

Florida and on December 10, 1999 gave an interview on radio station WMNF-AM,

during which he again violated the terms of the Injunction.

     Armstrong has twice previously violated the Injunction and been held in contempt

of this Court on each such occasion. Unfortunately, though bench warrants have been

issued, Armstrong has fled the jurisdiction to avoid the consequences of his acts, all the

while piously complaining that the Injunction is illegal.

 

FACTS

    In December of 1986, Armstrong freely and voluntarily entered into a Mutual

Release of All Claims and Settlement Agreement (the "Agreement") pursuant to which

CSI paid Armstrong $800,000.00. (Wilson Decl. at 2.) In exchange, Armstrong

promised, in essence, to cease disseminating "information" concerning CSI and to cease

assisting others litigating or defending claims against CSI and Scientology- related

entities. (Id) Beginning in approximately 1990, Armstrong fraudulently transferred

substantially all of his assets to his attorney and close friends, and then began repeatedly

breaching almost every covenant he made in the Agreement. (Id. at ¶ 3.)

    As a result of Armstrong's conduct, CSI brought this action for breach of the

Agreement seeking, inter alia, a permanent injunction against further breaches. (Id. at

¶4.) On October 17, 1995, this Court granted an Order of Permanent Injunction against

Armstrong (the "Order") following a motion for Summary Adjudication of issues brought

by CSI. (Id. at ¶8.) Such Order was later incorporated into the judgment entered against

 
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Armstrong on May 2, 1996 (the " Judgment"); the Order and Judgment are collectively

sometimes referred to as the "Injunction". The Injunction prohibits Armstrong from

voluntarily assisting any persons litigating claims adverse to defined " Beneficiaries"

including CSI, from making public statements regarding any of the Beneficiaries, and

from creating and/or publishing "works" discussing any of the Beneficiaries.

    Armstrong continues to flaunt his violations of the Injunction and his

disobedience to the authority of this Court, boasting to all that will listen that he intends

to persist in violating the Injunction, calling it invalid and criminal. Indeed, since the

February 20, 1998 contempt order, Armstrong has made a total of 131 postings on the

Internet, each of which violated one or more provisions of the Injunction. ( Id. at ¶17.)

Armstrong has also caused himself to be subpoenaed for deposition in a lawsuit against

the Church in Clearwater, boasting that he initiated the contact with the plaintiff's

attorney (id. at ¶14); gave a speech at a fund-raiser for an anti- Scientology group in

Clearwater (id. at ¶15); traveled to Tampa, Florida for an interview at Radio Station

WMNF AM where he again purposely violated the Injunction (Id. at ¶ 16), and in June

2000, journeyed to Denmark to provide information to anti-Scientology media there.

II. ARGUMENT

    This Court should hold Armstrong in criminal contempt for his willful

disobedience of the Injunction. Code of Civil Procedure § 1209, et seq ., provides this

Court with the power to punish acts, such as Armstrong's, which are in " disobedience of

any lawful . . . order of the court." Code Civ. Proc. § 1209(a)(5). See also, Pacific

Telephone and Telegraph Co. v. Superior Court (1968) 265 Cal.App.2d 370 (section

1209 contempt proceedings are special proceedings, criminal in character and intended to

implement the inherent power of the court to enforce its lawful orders).

    Code of Civil Procedure § 1211 provides that when contempt is not committed in

the immediate view and presence of the court, an affidavit shall be presented to the court

of the facts constituting the contempt. For this purpose, declarations can be used in place

of affidavits. Code Civ. Proc. § 2015.5.

 

 
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    The declaration must show: (1) the rendition of a valid order; (2) the respondent's

knowledge of the order; (3) the respondent's ability to comply with the order; and (4) the

respondent's willful disobedience of the order. See, Conn v. Superior Court (Farmer's

Group) (1987) 167 Cal.App.3d 774, 784. The required showing has been made here.

Armstrong has not made any counter showing. Thus, under Code Civ Proc. § 1218,

the Court "...must determine whether the person proceeded against is guilty of the

contempt..." Donovan v. Superior Court, 39 Cal. 2d 848, 855 (1952).

    An adjudication for indirect contempt requires that the record contain substantial

evidence that the contemner willfully and maliciously refused to obey the order of the

court. The requisite intent can be inferred from the circumstances. Reliable Enterprises

v. Superior Court, 158 Cal. App. 3d 604, 612 ( 1984) citing Oliver v. Superior Court, 197

Cal. App. 2d 237, 240 (1961) and City of Vernon v. Superior Court, 38 Cal. 2d 509, 518

(1952)

    The Court has expressed some doubt as to the propriety of issuing the requested

order of contempt. Plaintiff understands that this concern is focused on whether it should

punish Armstrong for speaking in violation of an agreement between Armstrong and

Plaintiff. In fact, contempt is sought for violation of an order issued by this Court in this

action, not for violation of any agreement, although the acts which constitute the

contempt also constitute breaches of that agreement. With that and the above legal

principles in mind, it is useful to revisit each of the required elements

A. The Injunction Is Valid.

    The Injunction was issued in October, 1995 by the Honorable Gary W. Thomas, upon

Plaintiff's motion for summary adjudication. Judgment incorporating the Order was

entered on May 2, 1996. There was no appeal from the Injunction, which is clearly final

and no longer subject to direct or collateral attack. The only possible avenue of attack

would be a collateral attack based on a claim by Armstrong that it is invalid on its face.

People v. Gonzalez (1996) Cal.4th 804, 823-4. Of course, Armstrong has made no such

attack. Further, the Court's file reflects that, prior to the entry of the Order, Armstrong

 
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fully litigated his claims that such an order would be vague, ambiguous, overbroad,

against public policy, violative of his First Amendment rights, and violative of his rights

to equal protection under the Fourteenth Amendment. Considerable time and effort was

expended by the parties and this Court in addressing and rejecting Armstrong's numerous

arguments as to why the proposed Order was improper.

    The principle of collateral estoppel precludes any such attack at this time. In Barker v.

Hull, 191 Cal. App. 3d 221, 226 (1987) the Court aptly summarized the applicable

principle:

"When an issue is properly raised, by the pleadings or otherwise, and is
submitted for determination, and is determined, the issue is actually
litigated within the meaning of this Section. An issue may be submitted
and determined on a motion to dismiss for failure to state a claim, a
motion for judgement on the pleadings ...(or)...a motion for summary
judgment..."

B. Armstrong Had Actual Knowledge Of The Injunction.

    One needs to look no further than Armstrong's own words to find conclusive

proof of this element. In his speech to the Lisa McPherson Trust, Armstrong told his

audience about the Injunction and that his speech was "barred by Court order." (Wilson

Dec., 15, Exhibit H, pg 1.)

C. Armstrong Was Fully Capable Of Complying With This Court's Injunction.

    The restrictions placed on Armstrong's behavior by the Order are very specific

and limited. The Order provides, in pertinent part, as follows:

Defendant Gerald Armstrong, his agents, employees, and persons acting in
concert or conspiracy with him are restrained and enjoined from doing
directly or indirectly any of the following:

* * *

3. Voluntarily assisting any person (not a governmental organization or
entity) arbitrating or litigating adversely to the Beneficiaries.

4. Facilitating in any manner the creation, publication, broadcast,

writing .... electronic recording or reproduction of any kind of . . .

documentary work of any kind which discusses, refers to or mentions

Scientology, the Church, and/or any of the Beneficiaries [of the Order].

 

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    Nothing in the Order requires affirmative action. Instead, Armstrong is merely

restrained from continuing to disclose his "information" and opinions. The restrictions on

Armstrong's behavior in the Order stems from an agreement which Armstrong made

freely and voluntarily and for which he was paid $800,000.00. (Id. at ¶2.)

D. Armstrong Has Willfully Disobeyed The Injunction And Must Be
Appropriately Sanctioned.

    The requirement that there be a "willful disobedience" of a court order to support

the sanction of criminal contempt is undeniably met here. Plaintiff has submitted

uncontroverted (and uncontrovertable) evidence that Armstrong willfully committed 131

violations of the Order by means of postings to the internet and an additional two

violations by making a speech to the Lisa MacPherson Trust and appearing on radio

WMNF-AM of Tampa, Florida. Each of these is, and should be punished as, a separate

act of contempt. See, Donovan, supra, 39 Cal. 2d 848, 855; Reliable Enterprises v.

Superior Court, supra, 158 Cal. App. 3d 604, 621.1

    This Court should exercise all of its available powers to stop the mockery of its

authority and his violation of CSI's rights. Armstrong should be subject to a fine of

$1,000 for each violation, and incarcerated for not more than five days pursuant to Code

of Civil Procedure § 1218. CSI should also be awarded the costs and attorneys' fees it

has incurred in bringing this Application.2

    CSI also submits that upon a finding of contempt under Code of Civil Procedure

§ 1209, et seq., referral to the District Attorney for misdemeanor prosecution under Penal

Code § 166(4) is also necessary to curtail Armstrong's continued defiance of this Court's

authority.


    1 In an internet posting on December 21, Armstrong stated that he had made 2289
postings which violated what he called the "insane injunction." Declaration of Andrew H.
Wilson, Exhibit A.

    2 There is no impediment to the Court proceeding in Armstrong's absence. It is beyond
controversy that Armstrong, a fugitive from California, is absent from this Court. Farace v.
Superior Court
, 148 Cal. App. 3d 915 (1983) [contempt proceeding may go forward if
contemnor voluntarily absent].

 
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III. CONCLUSION

In light of the foregoing, plaintiff Church of Scientology International respectfully

requests that the Court adjudge Armstrong to be guilty of each of the separate acts of

contempt set forth in Plaintiff's application. .

Dated: December 27, 2000 Respectfully submitted,
WILSON CAMPILONGO LLP
By: [signed]
Andrew H. Wilson
Attorneys for Plaintiff/Judgment Creditor
CHURCH OF SCIENTOLOGY INTERNATIONAL
 

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ANDREW H. WILSON, SBN 63209
SHAUNA T. RAJKOWSKI, SBN 148239
WILSON CAMPILONGO LLP
475 Gate 5 Road, Suite 212
Sausalito, CA 94965

Telephone (415) 289-7100
Facsimile (415) 289-7110

Attorneys for Plaintiff and Judgment Creditor
CHURCH OF SCIENTOLOGY INTERNATIONAL

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTRY OF MARIN

CHURCH OF SCIENTOLOGY
INTERNATIONAL, a California
nonprofit religious corporation,

        Plaintiff,

vs.

GERALD ARMSTRONG,

        Defendant.


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CASE NO. 152229

SUPPLEMENTAL DECLARATION OF ANDREW H. WILSON IN SUPPORT OF EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE CONTEMPT

Date: December 27, 2000
Time: 9:30
Department: 6

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    I, ANDREW H. WILSON, declare as follows:

    1. I am a partner of the law firm of Wilson Campilongo LLP and am an attorney

admitted to practice in the State of California. I am one of the attorneys responsible for the

representation of the Plaintiff/Judgment Creditor in this action. As such, I have personal

knowledge of the facts set forth below and, if called upon to testify on such matters, would and

could do so competently.

    2. Attached hereto as Exhibit [A] is a copy of an Internet posting made by Mr.

Armstrong on December 21, 2000 in which he states that he has violated the " insane injunction

on 2289 occasions.

SUPPLEMENTAL DECLARATION OF ANDREW H. WILSON RE CONTEMPT

 
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[Exhibit A]

From: Gerry Armstrong <armstrong@dowco.com>
Newsgroups: alt.religion.scientology
Subject: Why do $cientology's lying scumbag lawyers always lie-
Date: Thu, 21 Dec 2000 12:11:39 -0800
Message-ID: < 5qo44t0tikc6mom2uitkam0plqom9hmier@4ax.com>
--------

$cientology liar Andy Wilson, Esq, writes in his sworn declaration filed in $cientology v. Armstrong, Marin County Superior Court No. 152229:

[Quote]

17. From February 20, 1998 through the present, Armstrong has made a total of 131 postings to the Internet, each of which violates one or more provisions of the Injunction. True and correct copies of a sampling of these postings are attached hereto as Exhibit K. A complete listing of these postings is attached as Exhibit L.

[End Quote]

I made at least 2289 postings to the Internet, all of which violate $cientology's insane Injunction, during the period of February 20, 1998 through November 13, 2000 the date Wilson signed his perjurious declaration.

This liar and the crime cultists with whom he's collaborating would have me jailed for the 131 postings and then while in jail have me locked up for life for the rest of my postings. Even if the judge only gives me two days in jail per posting, that's almost 13 years in prison. But the judge can hit me with five days per violation, which would mean 32 years in prison.

Then there are the 120 or so postings I've made from November 13 through the present, which would add about another year. So, if they kept me in solitary and nobody listened to me in prison, I would be out when I'm eighty-seven.

Of course there's the matter of the crime cultists having me disposed of quietly and without sorrow in prison, which is really their insane plan.

$cientology is a criminal enterprise and should be treated like any criminal enterprise, and their lying scumbag lawyers treated like lying scumbag lawyers working for a criminal enterprise.

(c) Gerry Armstrong

 
   

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