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CALIFORNIA COURT OF APPEAL

FIRST APPELLATE DISTRICT

DIVISION FOUR

CHURCH OF SCIENTOLOGY INTERNATIONAL

Plaintiff and Respondent

v.

GERALD ARMSTRONG

Defendant and Appellant.

Appeal No. A075027

Marin County Superior Court No. 157680

APPELLANT'S OPENING BRIEF


Gerald Armstrong
[former address]
Defendant and Appellant
In Propria Persona


 

TABLE OF CONTENTS

 

  I. INTRODUCTION

1

   
 II. ARMSTRONG'S HISTORY WITH SCIENTOLOGY

3

   
    A. Pre-Settlement

4

   
    B. The Settlement

7

   
    C. From Settlement to First Response 10
   
    D. Fair Game After Armstrong's First Response 14
   
    E. Armstrong's Actions 17
   
    F. Scientology's Enforcement Litigation 19
   
III.ARGUMENT 29
   
    A. There is a Triable Issue as to Duress 29
   
    B. There is a Triable Issue as to Fraud 32
   
    C. There is a Triable Issue as to Justification 34
   
    D. The Settlement Agreement Obstructs Justice 36
   
    E. There is a Triable Issue as to the Validity
of the Liquidated Damages Provision
41
   
    F. The Settlement Agreement Violates
Freedom of Speech
45
   
    G. The Settlement Agreement Violates
the Thirteenth Amendment
47
   
    H. The Settlement Agreement Violates
Freedom of Religion
48
   
 IV. CONCLUSION 50

 

PROOF OF SERVICE

 


   
   

TABLE OF AUTHORITIES

 

 

 

ITT Telecom Products Corp. v. Dooley (1989)
214 Cal.App.3d 307,319

46
   
Scientology v. Armstrong, (1991)
232 Cal.App.3d 1060, 283 Cal. Rptr. 917
13
   
Civ. Code, §1671, Subd (b) 24, 41
 


   
   

I. INTRODUCTION

     This is an appeal from a Marin County Superior Court judgment

obtained by plaintiff Church of Scientology International,

hereinafter (also with other components of the global Scientology

organization) " Scientology" or "Scn," against defendant Gerald

Armstrong, hereinafter "Armstrong" or "GA," pursuant to a series of

summary adjudication motions. The judgment (Clerk's Transcript on

Appeal, hereinafter "CT," 9783-85) includes a monetary award of

$300,000 in " liquidated damages," $334,671.75 in costs, and an

order of permanent injunction against GA. The judgment and

injunction (CT 9786-94) are the result of the enforcement by way of

breach of contract action of a 1986 "Mutual Release of All Claims

and Settlement Agreement," hereinafter " SA" (CT 116-31) which was

to end then existing Los Angeles Superior Court litigation between

Scn and GA. The SA requires, inter alia, that GA not mention Scn,

his knowledge thereof or experiences therein (CT 121-3), not

voluntarily assist or advise Scn's litigation opponents including

governmental agencies (CT 125, 6; 128), and avoid service of process

(CT 125, 6). The SA also included a liquidated damages provision of

$50,000 (CT 123) for any such mention or assistance by GA. Scn

claims that GA violated the SA some 50 times, which are listed in

the injunction, between 1991 and 1995. (CT 9787-91)

The order of injunction states:

"[GA], 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:

     1. Voluntarily assisting any person (not a

government organ or entity) intending to make, intending

to press, intending to arbitrate, or intending to

litigate a claim, regarding such claim or regarding

pressing, arbitrating, or litigating it, against any of

the following persons or entities:

-    [The Church of Scientology International, Church of

Scientology of California, Religious Technology Center,

Church of Spiritual Technology, all Scientology and

Scientology affiliated Churches, organizations and

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entities, Author Services, Inc., and all their officers,

directors, agents, representatives, employees,

volunteers, successors, assigns and legal counsel;]

-    The Estate of L. Ron Hubbard, its executor,

beneficiaries, heirs, representatives, and legal counsel;

and/or -   

 Mary Sue Hubbard; (Hereinafter referred to collectively as "the

Beneficiaries");

     2. Voluntarily assisting any person (not a

government organ or entity) defending a claim, intending

to defend a claim, intending to defend an arbitration, or

intending to defend any claim being pressed, made,

arbitrated or litigated by any of the Beneficiaries,

regarding such claim or regarding defending, arbitrating,

or litigating against it;

     3. Voluntarily assisting any person (not a

government organ or entity) arbitrating, or litigating

adversely to any of the Beneficiaries;

     4. Facilitating in any manner the creation,

publication, broadcast, writing, filming audio recording,

video recording, electronic recording or reproduction of

any kind of any book, article, film, television program,

radio program, treatment, declaration, screenplay or

other literary, artistic or documentary work of any kind

which discusses, refers to or mentions Scientology, the

Church, and/or any of the Beneficiaries;

     5. Discussing with anyone, not a member of

Armstrong's immediate family or his attorney,

Scientology, the Church, and/or any of the

Beneficiaries."

     GA contends that his signature was obtained by Scn on the SA

by duress, fraud and the compromise of his then attorney. GA

contends that all his alleged breaches of the SA were in response

to and in self-defense against Scn's post-settlement attacks on

him, and that as such his actions were legally justified. He

contends that the purpose and function of the SA and its

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enforcement are obstruction of justice, and as such are against

public policy. He contends that the SA and the injunction

impermissibly violate his Constitutional rights to freedom of

religion, freedom of speech, freedom of association, due process

and freedom from slavery; and impermissibly eliminate his

litigant's, clergyman-penitent, therapist-patient and doctor-

patient privileges. GA contends that the liquidated damages

provision impermissibly acts as punishment, that the amount has no

reasonable relationship to Scn's actual damages for his alleged

breaches, and that there are sufficient disputed facts concerning

circumstances at the time of the settlement of the Los Angeles

action to make imposition of monetary damages and disposition of

the case by summary judgment clear judicial error. GA contends that

there is also a triable issue of fact as to the intentions of the

settling parties regarding Scn's being bound by the same silence

conditions. Finally, GA contends that the court below erred in not

considering his defenses and not considering the miscarriage of

justice which would result from its erroneous judgment.

     GA is not an attorney and has no present access to published

California and US laws and appellate opinions. He was represented

by competent counsel throughout most of the litigation in the court

below, and he relies on and incorporates herein his counsel's

memoranda of points and authorities in his oppositions, with all

arguments and citations therein, to Scn's various summary

adjudication motions (CT 8252-75; 8243-51; 3875- 98; 9349-63) and in

his motion for reconsideration and reply. (CT 9046-62; 9509-18)

 

II. ARMSTRONG'S HISTORY WITH SCIENTOLOGY

     Unless otherwise indicated, all facts in this section are from

GA's Separate Statements of Disputed and Undisputed Facts in

Opposition to Summary Adjudication Motions (CT 8276-410; 8411-553)

and GA's Evidence in Support of Oppositions to Summary Adjudication

Motions (CT 5871-8242), all properly before the trial court. Any

document cited to is identified only in the initial citation. Facts

stated in the Separate Statements are designated (SS (no.), CT

(no.). Certain documents contained in GA's Evidence before the

court below, which are inexplicably missing from the Clerk's

Transcript, and are designated "Missing."

-3-

 

A. Pre-Settlement

     GA was inside Scn from 1969 through 1981. From 1971 until he

left the organization he was a member of the Sea Organization,

highly dedicated upper echelon of Scn, and worked for Scn founder

and director L. Ron Hubbard. GAs last position inside Scn involved

assembling an archive of Hubbard's personal documents and providing

research assistance and copies of the archive documents to a writer

Omar Garrison who had been contracted to produce Hubbard's

biography. Through his study of the papers in his possession GA

came to see that Hubbard and his organization had continuously lied

about Hubbard's past, credentials and accomplishments. GA attempted

to get the organization to correct the lies, but his efforts were

rejected and he was ordered to a "security check," a Scn

interrogation using its lie detector, also called an E-meter. GA

saw that his trust, which he had placed in Hubbard and Scn for more

than 12 years, had no meaning, and that the frauds perpetrated

about Hubbard's life would continue; and as a result GA left the

organization. (Decision, 6/20/84, Scientology v. Armstrong,

hereinafter, " Armstrong I,"LASC No. 420153, CT 5960-70)

     Shortly after leaving, GA became the target of Scn's " Fair

Game Doctrine," which permits individuals designated as " enemies, "

also called "Suppressive Persons," hereinafter "SP's," to be"

deprived of property, injured by any means by any Scientologist...

tricked, sued, or lied to or destroyed." (Scn Policy, CT 6934; SS

1A, CT 8412) GA says that "fair game" is the name given by Hubbard

to his philosophy of opportunistic hatred directed at anybody he

didn't like. GA observes that over Hubbard's adult life he used

hatred and acts which flow therefrom (lying, cheating, stealing,

compromising, entrapping, obstructing, bullying, blackmailing,

destroying) as the solution to his problems. (GA Declaration

12/25/90, CT 6139,40) Scn declared GA an SP, published documents

accusing him falsely of crimes and high crimes including

promulgating false information about Hubbard and Scn (SP Declares,

CT 7354-7; SS 1A, CT 8416,7), and seized photographs GA possessed.

Fearing that his wife's and his life were in danger GA, who had

extensive knowledge of covert intelligence operations carried out

by Scn against SPs, obtained from Garrison documents GA believed he

-4-

 

would need to defend himself against Scn, and sent them to

attorneys who had agreed to represent him in his defense. (CT

5972,3; SS 1A, CT 8412) One of the attorneys was Michael Flynn,

whom Scn considered its foremost lawyer enemy. (CT 5958)

     Scn filed its Armstrong I suit against GA in August, 1982 for

conversion, breach of fiduciary duty and invasion of privacy. The

documents GA sent to his attorneys were ordered to be delivered to

the LASC Clerk where they remained until the 1986 settlement. Scn

also hired individuals who followed and surveilled GA, assaulted

him, struck him bodily with a car, and attempted to involve him in

freeway accident. The same individuals spied in GA's windows,

created disturbances and upset his neighbors. (CT 5973,4; SS 1A, CT

8412) GA filed a cross-complaint against Scn for, inter alia, fraud

and intentional infliction of emotional distress.

     Scn's suit, from which the cross-complaint was severed, was

tried without a jury by Judge Paul G. Breckenridge, Jr. in the

spring of 1984, resulting in a decision for GA. Judge Breckenridge

found that Scn and Mary Sue Hubbard had unclean hands and that GA's

actions in sending the documents to his attorneys were reasonable

and justified because he reasonably believed he was the target of

"fair game." (CT 5948-59; SS 126, CT 8517) The Judge stated:

"[GA] did what he did, because he believed that his life,

physical and mental well being, as well as that of his

wife were threatened because the organization was aware

of what he knew about the life of LRH (Hubbard), the

secret machinations and financial activities of the

Church, and his dedication to the truth. He believed

that the only way he could defend himself, physically as

well as from harassing lawsuits, was to take from Omar

Garrison those materials which would support and

corroborate everything he had been saying about LRH and

the Church, or refute the allegations made against him in

the [SP] Declare. He believed that the only way he could

be sure that the documents would remain secure for his

future use was to send them to his attorneys, and that to

protect himself, he had to go public so as to minimize

the risk that LRH, the Church or any of their agents

-5-

 

would do him physical harm." (CT 5952)

Judge Breckenridge condemned Scn's "fair game" policy:

"In addition to violating and abusing its own members

civil rights, the organization over the years with its

"Fair Game" doctrine has harassed and abused those

persons not in the Church whom it perceives as enemies.

The organization clearly is schizophrenic and paranoid,

and this bizarre combination seems to be a reflection of

its founder LRH. The evidence portrays a man who has been

virtually a pathological liar when it comes to his

history, background and achievements. The writings and

documents in evidence additionally reflect his egoism,

greed, avarice, lust for power, and vindictiveness and

aggressiveness against persons perceived by him to be

disloyal or hostile." (CT 5955,6)

    Judge Breckenridge condemned Scn's abuse of its participants'

auditing or psychotherapy records:

"culling supposedly confidential "P.C. folders or files" to

obtain information for purposes of intimidation and/or

harassment is repugnant and outrageous." (CT 5958,9)

Judge Breckenridge commented on GA's credibility:

"the court finds the testimony of [GA and 7 other named

defense witnesses] to be credible, extremely persuasive,

and the defense of privilege or justification established

and corroborated by this evidence. [ ] In all critical

and important matters, their testimony was precise,

accurate and rang true." (CT 5954)

Judge Breckenridge also stated that:

"[GA] and his counsel are free to speak or communicate

upon any of [GA's] recollections or his life as a

Scientologist or the contents of any exhibit received in

evidence or marked for identification and not

specifically ordered sealed." (CT 5950)

     The decision was entered as a Judgment and Scn appealed.

Following the 1984 decision and until the 1986 settlement Scn

continued its fair game attacks on GA which included at least these

acts: attempted entrapment; illegal videotaping; filing false

-6-

 

criminal charges against him with the Los Angeles District

Attorney; filing false criminal charges against him with the Boston

office of the FBI; filing false declarations to bring contempt of

court proceedings against him on three occasions; obtaining

perjured affidavits from English private investigators who had

harassed him in London, England in 1984, accusing him of

distributing " sealed" documents; international dissemination of

Scientology publications falsely accusing him of, inter alia,

crimes, including crimes against humanity; culling and

disseminating information from his supposedly confidential auditing

or psychotherapy file. (SS 1A, CT 8413-8; GA Declaration, 3/16/92,

CT 6910-1; GA Declaration, 9/15/95, CT 5897-9; LAPD Officer

Rodriguez letter re eavesdropping, 11/7/84, CT 6941; LAPD Chief

Gates Announcement, 4/23/85, CT 6942; LA DA letter, 4/25/86, CT

6943-55; " Freedom," 1985, CT 7060-71; Scn Directive, 9/20/84, CT

7119,20); GA Declaration, 11/1/86, CT 6411-47. Scn calls falsehoods

used to destroy reputation or public belief in a person, " black

propaganda," or "black PR." (SS 1A, CT 8413; Scn policies 11/21/72

and 11/5/71, CT 7376-87) Scn also calls black PR "dead agent," and

documents used for black PR purposes "dead agent documents" or " DA

docs." See also Scn's Request for Judicial Notice, GA Declaration,

2/22/94, (CT 5580-93; GA Declaration, 2/20/94, CT 5624-39; SS 1A)

GA's attorney Michael Flynn was the target of Scientology's

fair game from 1979 through the time of the signing of the

settlement agreements. Fair game acts against Flynn included

infiltrating his office, paying known criminals to testify falsely

against him, suing him and his office some fifteen times, framing

him with the forgery of a $2,000,000 check, and an international

black PR campaign. (SS 1B, CT 8418-20; GA Declaration, 9/9/95, CT

8245; CT 6125; GA Declaration, 1/13/94, CT 6967,8; "Juggernaut"

Intelligence Eval, 9/13/81, CT 6310-6324; Jonathan Atack

Declaration, 4/9/95, CT 7964; Settlement Agreement between Flynn

and clients 6938,9 (signed version at CT 5483); CT 5899,900).

 

B. The Settlement

     At the beginning of December, 1986 an agreement was reached

between Flynn and Scn to settle the cases in which he was involved

as counsel or party. GA was then working for Flynn in his Boston

-7-

 

office, was aware that settlement talks were occurring, and had an

agreement with Flynn on a monetary amount to settle his cross-

complaint, then set for trial in March, 1987. GA was flown to Los

Angeles, as were several other clients with claims against the

organization, to participate in a global settlement. Only after his

arrival in LA was he shown a copy of the SA and other documents

which he was expected to sign. (CT 6911,2; 6125,6; 5900,1)

     Upon reading the SA, GA was shocked and heartsick. He told

Flynn that the condition of strict confidentiality and silence with

respect to his experiences with Scn, since they involved over

seventeen years of his life, was impossible. GA told Flynn that the

liquidated damages provision was outrageous; that pursuant to the

settlement agreement he would have to pay $50,000.00 if he told a

doctor or psychologist about his experiences from those years, or

if he put on a resume what positions he had held during his Scn

years. He told Flynn that the requirements of non-amenability to

service of process and non-cooperation with persons or

organizations adverse to the organization were obstructive of

justice. He told Flynn that agreeing to leave Scn's appeal of the

Armstrong I decision and not respond to any subsequent appeals was

unfair to the courts and all the people who had been helped by the

decision. He told Flynn that an affidavit the organization was

demanding that he sign along with the SA was false. GA told Flynn

that he was being asked to betray everything and everyone he had

fought for against Scn injustice. (CT 6911-2; 6126,7; 5901)

     In answer to GA's objections Flynn said that the silence and

liquidated damages clauses, and anything which called for

obstruction of justice were "not worth the paper they're printed

on." Flynn told GA this a number of times and in a number of ways;

"You can't contract away your Constitutional rights; "the

conditions are unenforceable." Flynn said that he had advised Scn

attorneys that those conditions in the SA were not worth the paper

they were printed on, but that they, nevertheless, insisted on

their inclusion in the SA and would not agree to any changes. Flynn

said that Scn's attorneys had promised that the affidavit, which

all the settling litigants were signing, would only be used by Scn

if GA began attacking it after the settlement; and if GA did not

-8-

 

attack Scn the affidavit "would never see the light of day." Flynn

pointed out to GA the clauses concerning his release of all claims

against Scn to date and its release of all claims against GA to

date and said that they were the essential elements of the

settlement and were what Scn was paying for. (CT 6912,3; 6127;

5901; SS 116; CT 8509)

     Flynn told GA that everyone was sick of the litigation and

wanted to get on with their lives. Flynn said that he was sick of

the litigation, the threats to him and his family and wanted out.

He said that as a part of the settlement he and all co-counsels had

agreed to not become involved in organization-related litigation in

the future. He expressed a deep concern that the courts in this

country cannot deal with Scn and its lawyers and their contemptuous

abuse of the justice system. He told GA that if he didn't sign the

documents all he had to look forward to was more years of

harassment and misery. Another client in the room with Flynn and GA

during this discussion yelled at GA, accusing him of killing the

settlement for everyone, and saying that everyone else had signed

or would sign, and everyone else wanted the settlement. Flynn said

that Scn would only settle with everyone together; otherwise there

would be no settlement. (SS 1C, 1D, 1E, CT 8420,1; CT 6913; 6127,8;

5902) Flynn said that he had to get out of the fight, that he had

done enough, that he had paid his dues, that Scientology had ruined

his marriage, his wife's health and his life. (CT 5902)

     Flynn told GA that a major reason for the settlement's global

form was to give Scn the opportunity to change its combative

attitude and behavior by removing the threat he and his clients

represented to it. Flynn said that Scn's willingness to pay

substantial sums of money, after its agents and attorneys had sworn

for years to pay his clients "not one thin dime" was evidence of a

philosophic shift within the organization. GA told Flynn that the

SA evidenced the unchanged philosophy of fair game, and that if Scn

did not use the opportunity to transform its antisocial nature and

actions toward its members, critics and society he would, a few

years hence, because of his knowledge of Scn fraud and fair game,

be again embroiled in its litigation and targeted for extralegal

attacks. (SS 98, CT 8487; CT 6913,4; 6128; 5902)

-9-

 

     GA had been positioned as a deal-breaker, with all the other

settling parties depending on his signing in order to have the fair

game cease. He reasoned that if he signed, his co-litigants, some

of whom he knew to be in financial trouble, would be happy, the

stress they felt would be reduced and they could get on with their

lives. Flynn and the other lawyers would be happy and the threat to

them and their families would be removed. Scn would have the

opportunity they said they desired to clean up their act and start

anew. GA would have the opportunity to get on with his life and the

financial wherewithal to do so. He was also not unhappy to at that

time not have to testify in all the litigation nor to respond to

the media's frequent questions. He knew that if Scn continued its

fair game practices toward him he would be left to defend himself;

so, armed with Flynn's advice that the SA conditions he found so

offensive were not worth the paper they were printed on, and the

knowledge that Scn's attorneys were also aware of that legal

opinion, GA put on a happy face and the following day went through

a videotaped signing, which he saw as a charade. (CT 6914,5;

6129,30; 5902)

 

C. From Settlement to First Response

     It was GA's understanding and intention at the time of the

settlement that he would honor the silence and confidentiality

conditions of the SA, and that Scn had agreed to do likewise. (CT

6916) GA delivered to Scn the evidence he had accumulated in his

case, released to Scn the documents held by the LASC, and agreed to

the sealing of the Court file. (CT 123,4; 5925; 5940) After the

settlement, GA got on with his life, did many usual or unusual

things including pursuing religious studies, left Scn alone, and

did not speak publicly about Scn or his experiences. (CT 6997-7000;

5902,3)

     Scn, however, could not leave GA alone but continued to

disseminate falsehoods about him publicly, and file false

statements about him in legal proceedings. He perceived that he was

still fair game, yet for 3 years, although saddened by the attacks,

he did nothing in response. These fair game attacks after December,

1986, but prior to any acts by GA which Scn claims are breaches of

the SA, include at least: delivering DA Documents (black PR) on him

-10-

 

to various media representatives; publishing Scn's own false

descriptions of his experiences; disseminating to the media an

edited, misleading and defamatory version of the secret and illegal

videotape its agents made of him; disseminating his own documents

which had been sealed on Scn's insistence in Armstrong I; filing

affidavits about him in a civil lawsuit in England (Scientology v.

u> Miller & Penguin Books, High Court of Justice, London, England,

Case No. 1987 C 6140) which falsely charged, inter alia, that GA

violated court orders and was an admitted agent provocateur of the

US Government; threatening him with being sued if he even talked to

attorneys in the Miller case in which the false charges about him

were being made; threatening to expose a private writing if he did

not assist Scn's effort to prevent a civil litigant, Bent Corydon,

from obtaining access to the Armstrong LASC case file; threatening

him with being sued if he testified about his Scientology

experiences even pursuant to a subpoena. (SS 105A-H, CT 8491-3; CT

6916-9; 5931-46; 5903,4; Excerpts DA document, CT 6007-10;

videocassette face, Missing; Affidavits of Kenneth Long, CT 6011-69

first page missing); CT 6072-102; Affidavit of Sheila Chaleff, CT

6060,1; GA 1977,8 wage and tax statement, CT 6028; GA Affidavit, CT

6029; Nondisclosure and Release Bond, CT 6030; GA Deposition

Transcript, CT 6031-43; GA Affidavit, CT 6087-102; CT 5926-8;

5943,4; 6919; 5970; 5904; 6135,6; GA Declaration, CT 6219,30). In

1987 Scn also filed in one of its cases with the IRS the affidavit

it had required GA sign as part of the settlement, in direct

violation of the promise it made through Flynn to only use the

document if GA attacked it. (CT 6138,9; IRS Final Adverse Ruling re

Church of Spiritual Technology, 7/8/88, CT 6241-3; CT 5903)

     In October, 1989 GA was served with a deposition subpoena by

plaintiff in the case of Bent Corydon v. Scientology, LASC No.

C694401. (CT 5925; Subpoena, CT 5990-4). Shortly afterward he was

called by Scn attorney Lawrence Heller, with whom he had three

telephone conversations over the next month. In these conversations

Heller threatened that GA could be sued if he testified, even

though he had been subpoenaed, and that he should refuse to answer

the deposition questions put to him by Corydon's attorney. Heller

offered to have Scn pay for a lawyer to represent GA at the

-11-

 

deposition. Heller requested GA to execute a declaration to assist

Scn in preventing GA's deposition from going forward, and

threatened that GA would have hassles if the deposition did go

forward. Heller also stated to GA that he should honor the SA

because Scn had honored it. Heller said that Scn had signed a non-

disclosure agreement as well and had lived up to it. GA told Heller

that Scn had filed declarations about him, put out dead agent

documents on him, and used the illegal videotape. GA made notes of

the conversations with Heller and recorded his side of the final

conversation. (CT 5925-8; 5943,4; Phone notes, CT 6227-37;

Transcript, CT 6238,9;CT 5904;

6135-7; CT 6919; CT 6970; CT 5904; SS 105H, 8493,4; SS 103, CT 8490)

     On November 1, 1990 Scn filed a motion in Corydon to delay or

prevent the taking of certain third party depositions, one of whom

was GA. (CT 5995-6006) The motion and supporting declaration were

signed by attorney Heller who stated that he was personally

involved in the settlements. (Heller Declaration, CT 6002) Heller

stated in the motion:

     "One of the key ingredients to completing these

settlements, insisted upon by all parties involved, was

strict confidentiality respecting: (1) the Scientology

parishioner or staff member's experiences with the Church

of Scientology; (2) any knowledge possessed by the

Scientology entities concerning those staff members or

parishioners." (Underline in orig.) (SS 102, CT 8489,90;

CT 5998)

Heller stated in his declaration:

     "The non-disclosure obligations were a key part of

the settlement agreements insisted upon by all parties

involved." (SS 101, CT 8488,9; CT 6003)

     "The contractual non-disclosure provisions were the

one issue which was not debated by any of the parties or

attorneys involved." (CT 6003)

     As a result of Heller's telephoned threats, which deeply

troubled him, GA concluded that the SA and Scn's efforts to enforce

it were acting to obstruct justice, and if he allowed himself to be

intimidated by the threats he would be abetting that obstruction.

-12-

 

He concluded that he had a right, and even a duty, regardless of

whatever the SA said, to not obstruct justice. He concluded that he

could not avoid a confrontation with Scn, and only then responded

to defend himself and to correct what he perceived were the

injustices created by the SA and Scn's misuse and violations

thereof. (CT 5928; 5930; 5940; 5945; 6919; 6970; 5904) Scn was

given a period of years to cease fair game. GA and the other

settling litigants had honored the agreements, removed themselves

as threats and allowed Scn the opportunity to change its combative

attitude and behavior. GA concluded that disclosure of Scn's

attitude and behavior would relieve and ultimately eliminate fair

game. (CT 6141,2)

     When he researched his rights, responsibilities and how to

proceed in response to Scn's threats and fair game, GA learned that

through the intervening five years Scientology had been able to

maintain its appeal from the 1984 >Armstrong I decision, Scientology

v. Armstrong, No. B025920, Second District, Division Three. GA

petitioned for permission to respond in the appeal. The Court

granted his petition, and also unsealed the SA, which he had filed

as a sealed exhibit to his petition. (SS 106, CT 8494,5; CT

6919,20; 5904; Petition, CT 6113-8) At the same time GA also

petitioned Division Four of the Second District for permission to

respond in another appeal, Corydon v. Scientology, No. B038975,

that Scn had taken from a 1988 LASC order granting Corydon's motion

to unseal the Armstrong I court file. (Petition, CT 6119-22) Scn

opposed GA's petition and he filed a declaration dated March 15,

1990, (CT 5925-6123) detailing many of the organization's post

settlement threats and attacks and stating his position regarding

the unenforceability of several conditions of the SA. (CT 6970,1)

The Division Four Court granted GA's petition, and he filed a

respondent's brief in both appeals, which were ultimately

consolidated.

     On July 29, 1991 the Court of Appeal affirmed the 1984

decision and judgment in Armstrong I (Scientology v. Armstrong , 232

Cal.App.3d 1060, 283 Cal. Rptr. 917.) The Court of Appeal stated:

"These [Suppressive Person] "declares" subjected

Armstrong to the "Fair Game Doctrine" of the Church which

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permits a suppressive person to be "tricked, sued or lied

to or destroyed...[or] deprived of property or injured by

any means by any Scientologist." (Id. at 1067; 920) (SS

127, CT 8517,8)

     In September, 1991 Scn filed a motion in the Court of Appeal

to seal the record on appeal, (CT 6521-88) based in part on the

assertion that "an integral, indispensable part of that [Armstrong

I] settlement was the sealing of the court's records." (CT 6529) GA

filed an opposition to the motion to seal (CT 6589-902) in which he

stated that " [t]he superior rights regarding the materials

plaintiffs want sealed are those of defendant whose safety from

attack rests in part on the availability of information and the

openness of court files, and those of the public who have a

Constitutional right to precisely the kind of information these

materials contain." (CT 6592). The Court of Appeal denied Scn's

motion to seal the record. (CT 6903)

 

 

D. Fair Game After Armstrong's First Response

     From the time GA petitioned the Court of Appeal, Scn has

continued to fair game him without letup. These attacks include,

but are not limited to: (SS 107A-L, CT 8495-503; CT 5913-4)

  • Disseminating to the media dead agent packs of black PR on

    him which provide Scn's false version of his experiences and

    include at least the following lies:

    • he testified falsely at trial in 1984 (Scn DA Docs re GA and

      Judge Breckenridge, CT 7527; 7533; 7600; 7605)


    • he "has adopted a degraded life-style (CT 7528; 7600)


    • he was " apparently naked" in a newspaper photo (CT 7528)


    • he is connected to Cult Awareness Network, hereinafter

      "CAN," described by Scn as "a referral agency for those who engage

      in the illegal activity of kidnapping adults for the purpose of

      forcibly persuading them to abandon their religious beliefs" (CT 7528)


    • his defense at his 1984 trial "was a sham and a fraud" (CT

      7528,9; 7614)


    • the LAPD "authorized" [Scn's] videotapes of GA (CT 7529;

      7615)


    • GA wanted to plant fabricated documents in Scientology files


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    and tell the IRS to conduct a raid (CT 7529-31; 7609; 7615,6)

    • he wanted to plunder Scientology for his own financial gain

      (CT 7530)


    • he never intended to stick to the terms of the SA (CT 7532;

      7617)


    • his motives in writing attorney Eric Lieberman regarding the

      case of Malcolm Nothling v. Scn, in South Africa were money and

      power (CT 7533; GA letter, 6/21/91, CT 7482-98)


    • he was incompetent as a researcher on the Hubbard biography

      project (CT 7533; 7622)


    • he wanted to orchestrate a coup in which members of the US

      Government would wrest control of Scn (CT 7531; 7616)


  • Using transcripts and other documents to attack him which

    Scn itself has insisted be sealed (CT 7537-97; 7533; 7534; 7610;

    7616; 7623)


  • Publishing black PR on him without stating its source which

    provide Scn's false version of his experiences and include at least

    these false and/or perverted charges:

    • he was formerly a heavy drug user (Scn publication

      "FACTNet," CT 7514)


    • he was paid to provide homosexual sex (CT 7514)


    • a Marin Independent Journal photo showed him in the nude

      holding the globe (CT 7514; Marin IJ article 11/11/92, CT 7184)


    • he is a psychotic and lives in a delusory world (Scn

      publication "FACTNet," CT 7520)


  • Scn director Michael Rinder wrote a letter to the Mirror

    Newspaper Group in London, United Kingdom in which he stated that

    GA "has now distinguished himself by posing naked in a newspaper"

    (Rinder letter, 5/9/94, CT 7524)


  • Scn President Heber Jentzsch wrote a letter, sent

    with documents about GA, to E! Television in which he stated that GA

    "has no relation to art or artists...except, of course, for the

    photo of himself, nude, hugging the globe (Jentzsch letter 8/5/93, CT 7693)


  • Scn agent Eugene Ingram spread the lie that GA has AIDS (CT

    5916; 8226,7; Videotape taken by Ingram of GA at November, 1992 CAN

    Convention, CT 8242; Notice of Lodging Videotape, CT 8676,7))

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  • Scn agent Garry Scarff was briefed by Ingram to expand on

    the [invented] "fuck buddy" relationship between GA and attorney

    Ford Greene (Scarff declaration, 2/11/93, CT 7510)


  • Filing declarations and other documents in various courts

    containing false charges, and then using the SA to prevent GA from

    responding or to punish him for responding (Declaration of David

    Miscavige
    , 2/8/94, filed in Scientology v. Fishman, USDC Cen. Dist.

    Cal. No. 91-6426 HLH, CT 7655,6; CT 5580-93; 5624-39; Scn's Second

    Amended Complaint
    herein, CT 5356,7; Scn's motion for summary

    adjudication of 13th, 16th, 17th & 19th causes of action, 3/17/95,

    CT 5312,3; Scn's separate statement in support of motion for

    summary adjudication, 2/23/95, CT 4524.44 CT 9789) (Scn's Supp.

    Memo. in Support of Motion to Dismiss, 8/26/91, filed in Aznaran v.

    Scientology, USDC Cen. Dist. Cal. No. 88-1786 JMI, CT 6682-6;

    Declaration of Sam Brown, 8/26/91, CT 6714,5; Declaration of Lynn

    Farny, 8/26/91, CT 6725-7; Reply in Support of Motion for Summary

    Judgment, 8/26/91, filed in Aznaran, CT 6797-9; GA Declaration,

    9/3/91, CT 6802-12; CT 4524.36; CT; CT 9787)


  • Attempting to have Armstrong jailed for contempt of court

    based on mischaracterization of his actions and manufactured

    actions (Scn's Ex Parte Application herein for OSC re Contempt,

    12/31/92, CT 7121-84; GA Declaration, CT 7406,7; Scn's evidence, GA

    declaration, 2/2/93, CT 5016-44; Scn's Ex Parte Application for OSC

    re Contempt, 7/26/93, CT 1628-739; Order of Judge Diane Wayne

    herein discharging OSC, 7/29/94, CT 7499-501)


  • Providing documentation to Premiere magazine about GA,

    including partial transcripts of the illegal Ingram videotaping of

    him and then using the settlement agreement to punish GA for

    responding (Article "Catch a Rising Star, 9/93, CT 7672; GA letter,

    10/11/93, CT 4811-4; CT 4524.48; Scn's motion for summary

    adjudication of 20th cause of action, CT 4524.11; CT 9790)


  • Providing a press release to the Marin Independent Journal

    concerning the Court's 1/27/95 ruling, which discusses GA's Scn

    experiences and contains the false statement that he "promised [in

    the SA] to refrain from spreading falsehoods about [Scn];" and then

    using the settlement agreement to punish GA for responding; (Scn

    press release from Nancy O'Meara and Andrew H. Wilson, 1/95, CT


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7692; GA letter to O'Meara, CT 5056; CT 4524.17,8



  • Secretly videotaping him (GA letters, 8/21/91, 8/22/91, CT

    6834-9; CT 6714)

 

E. Armstrong's Actions

     In August, 1990, GA was in a new home he had purchased in

Marin County, and living his life. (CT 6998-7000) Although still a

troubled target of fair game, he considered himself free of the

SA's restrictions, not only because of what Flynn had told him at

the time of the settlement, but because of Scn's post settlement

attacks and the SA's unenforceability due to its obstruction of

justice. (CT 6972; 5928; 5930; 5940; 5945) Then the Iraqi army

invaded Kuwait, and his life was again forever changed. Moved by

media reports of the invasion, the global tension, and the daily

events of Desert Shield, GA prayed for guidance concerning

humanity's condition, and specifically the then developing Middle

East crisis. (CT 6988; 5905,6) GA received a message, which he

believed came from God, saying: "Keep nothing. Give what you have

to the poor. Take only what you need." (Message, CT 7204) The idea

of renunciation of worldly wealth, although coming at that time as

a surprise, and unclear as to the details for its accomplishment,

was not altogether illogical to GA because he had long recognized

that money, greed and power motivated much of the madness that made

human beings war against each other. (CT 6988) He had already

recognized the essential valuelessness of money in an essay he had

written in 1989. (CT 7039-41) GA also recognized that Scn's leaders

were motivated by the same forces of money, greed and power that

made men war against each other and that his renunciation was

spiritually directed at bringing peace for Scn no less than the

rest of the world. (CT 7002) GA gave away his assets, including his

ownership of The Gerald Armstrong Corporation, hereinafter "TGAC,"

his philosophic services company; his ownership of his home;

forgave debts owed him; and determined to go wherever his help was

asked for. (CT 7002; 5906) Over the next few months GA gave himself

to resolving the Middle East crisis (CT 7095-103) but he was not

successful and a quarter million people were killed.

     In June, 1991 GA received a call from Malcolm Nothing, asking

him to testify in his case against Scn in South Africa. Nothling

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said he had not been able to find anyone else in the world willing

to testify about Scn's policies and practices. After listening to

Nothling's story, and because Nothling had asked, GA agreed to help

him. GA said he first wanted to see if the situation could be

resolved peacefully, and he wrote a letter to attorney Lieberman,

who represented Scn in the Armstrong I appeal. (CT 7482-98) Scn

rejected GA's peace proposal, so he flew to South Africa and helped

Nothling, but did not testify as the trial was postponed. (CT 7004;

5906) (SS 21-2, CT 8438,9)

     Before leaving for South Africa, GA received a call from

attorney Joseph Yanny, asking for GA's help in the Aznaran case.

Yanny told GA that he had come into the case after the Aznarans had

been tricked by Scn into firing their attorney Ford Greene. GA

travelled to Los Angeles and wrote a declaration concerning the

unjust effect of the 1986 "global settlement" on litigants against

Scn and in the legal community, and helped Yanny with moral support

and matters of the soul. (CT 7005; 5906)

     As GA was leaving for South Africa he learned from Yanny that

Scn had sued Yanny for allegedly inducing GA to breach the SA. In

response, GA wrote a declaration in which he stated his philosophy

regarding his calling to help. (GA Declaration, 7/19/91, CT 6740-9)

"But more than a desire to protect myself or right the

organization's unjust acts towards me, however, I helped

Mr. Yanny for the simple reason that he asked. I will do

the same for anyone....It is not only the right of all

men to respond to requests for help, it is our essence.

If I was induced, therefore, to help Mr. Yanny, or anyone

else, it was our Creator Who induced me." (CT 6747)

     In its lawsuit, Scientology v, Yanny, LASC No. BC 033035, Scn

claimed that Yanny, who had formerly represented Scn, was

representing GA in Scn-related litigation. Yanny had never

represented GA in any litigation and GA had never consulted Yanny

about his Scn legal battle. Scn's complaint was ultimately

dismissed. (CT 7005,6) Scn considers GA's declaration, provided by

him in a case in which an attorney was falsely sued for

representing him, a SA violation. (CT 4524.8; 4524.37,8; 9787,8)

(SS 17-20, CT 8436-8)

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     Upon his return to the US GA received the complaint Scn filed

against 17 IRS agents, Scientology v. Xanthos, et al., USDC Cen.

Dist. Cal. No. 91-4301-SVW, which contained the allegation that:

"The infiltration of the Church was planned as an

undercover operation by the LA CID (Criminal

Investigation Division of the IRS) along with former

Church member Gerald Armstrong, who planned to seed

church files with forged documents which the IRS could

seize in a raid. The CID actually planned to assist

Armstrong in taking over the Church of Scientology

hierarchy which would then turn over all Church documents

to the IRS for their investigation." (Xanthos, complaint,

8/12/91, CT 6636)

     Although GA had seen this attack line in many forms and venues

since 1985, this 1991 charge signaled to him that the organization

was not about to peacefully end its legal and psychological war in

which he knew he was one of its most hated enemies. (CT 7007,8)

     Within a few days GA went by Ford Greene's office, which was

near his residence in San Anselmo in Marin County. Greene, who was

one of few attorneys willing to take cases on behalf of Scn's

victims, had been reinstated as counsel in Aznaran. GA saw that

Greene was facing several summary judgment and other motions Scn

had filed in the case when the Aznarans were lawyerless, had no

time, staff or other resources, and truly needed GA's help. (CT

7006,7; 6811,2) GA worked for Greene as his sole office assistant

from August, 1991 until, except for a three week period, December,

1995. (CT 5907) Throughout those years Scn tried continuously to

prevent GA from working with Greene. (See, e.g., CT 6804-12; 7508;

7510,1; 7131-3; Complaint herein, CT 0009-10; Bartilson

Declaration, 12/31/92, CT 7143-6)(SS 12-16, CT 8432-6)

 

F. Scientology's Enforcement Litigation

      In October, 1991 Scn filed a motion in Armstrong I to enforce

the SA. GA opposed the motion and on December 23, 1991, after a

hearing, LASC Judge Bruce R. Geernaert denied it. Judge Geernaert

stated regarding the SA:

     "So my belief is Judge Breckenridge, being a very

careful judge....if he had been presented that whole

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agreement and if he had been asked to order its

performance, he would have dug his feet in because that

is one .... I'll say one of the most ambiguous, one-sided

agreements I have ever read. And I would not have

ordered the enforcement of hardly any of the terms if I

had been asked to, even on the threat that, okay the case

is not settled.

     I know we like to settle cases. But we don't like

to settle cases and, in effect, prostrate the court

system into making an order which is not fair or in the

public interest." (SS 120, CT 8510,1; Transcript of 12/23/91 hearing, CT 7700)

     On February 4, 1992, Scn filed its verified complaint for

damages and for preliminary and permanent injunctive relief for

breach of contract, Marin SC No. 152229, hereinafter "Armstrong

II." (CT 0001-12)On February 7, 1992 Scn filed a motion for

preliminary injunction. (CT 0073-4). GA filed a motion to transfer

the case to the LASC, which was granted March 20, 1992. (CT 75-80.

The case was transferred and given LASC No. BC 052395. (CT 0081)

     On April 14, 1992 Scn filed a renewed motion for preliminary

injunction (CT 0082-4), a hearing on which was held May 26 and 27

before LASC Judge Ronald Sohigian, who on May 28, issued an order

granting in part Scn's motion. He prohibited GA from:

     "Voluntarily assisting any person (not a

governmental organ or entity) intending to make,

intending to press, intending to arbitrate, or intending

to litigate a claim against the persons referred to in

sec. 1 of the [SA] regarding such claim or regarding

pressing, arbitrating, or litigating it.

     Voluntarily assisting any person (not a governmental

organ or entity) arbitrating, or litigating a claim

against the persons referred to in sec. 1 of the [SA].

     "The Court does not intend by the foregoing to

prohibit [GA] from (a) being reasonably available for the service of

subpoenas on him; (b) accepting service of

subpoenas on him without physical resistance, obstructive

tactics, or flight; (c) testifying fully and fairly in

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response to questions in either deposition, at trial, or

in other legal proceedings; (d) properly reporting or

disclosing to authorities criminal conduct of the persons

referred to in sec. 1 of the [SA]; or (e) engaging in

gainful employment rendering clerical or paralegal

services not contrary to the terms and conditions of this order.

     The application for preliminary injunction is otherwise

denied." (Order 5/28/92, CT 0091-4)

     GA appealed the grant of the preliminary injunction.

     On June 4, 1992 Scn filed an amended verified complaint for

damages and for preliminary and permanent injunctive relief for

breach of contract. (CT 0095-115) On June 23, 1992 Scn filed an

amendment to complaint, adding TGAC as Doe 1. (CT 0159) On July 22,

1992 GA filed his answer and a cross-complaint for declaratory

relief, abuse of process, and breach of contract, (CT 0160-254).

On October 8, 1992 he filed an amended answer and an amended cross-

complaint. (CT 0255-333)

     On December 31, 1992 Scn filed an application for an OSC why

GA should not be held in contempt. (CT 0428-639) The OSC was signed

by Judge Sohigian. (CT 640,1) The charged contempts were for a

letter GA wrote to Scn leader David Miscavige (CT 0436,7; GA

letter, 12/22/92, CT 0525-34) a discussion with the Aznarans;

signing 2 proofs of service in their case (CT 0438,9; Proofs of

service, CT 0567-70); "assisting" Greene clients Tillie Good,

Denise Cantin and Ed Roberts (CT 0439-40); and making a videotape

discussing his Scn experiences. (CT 0440-2) GA filed his opposition

to the OSC, and various supporting declarations and other

documents. Scn filed a motion in limine to exclude Scn's prior

acts, and various other documents relating to the OSC. (CT 0644-

1268) On March 5, 1993 a hearing was held before LASC Judge Diane

Wayne, who ruled that because the 5/28/92 order was on appeal, she

would not proceed. Judge Wayne stated during the hearing:

"I have some serious questions about the validity of the

order."(Transcript, CT 1410)

"I'll tell you, when I first looked at this order, I

thought the order was clear until I read part of the

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transcript. Then it became unclear to me." (CT 1414)

     On March 17, 1993 GA filed an application to stay proceedings

(CT 1269-86) based on his appeal of the 5/28/92 order, which Scn

opposed. (CT 1297-394) On March 23, 1993 LASC Judge David A.

Horowitz granted the motion. (Order, CT 1596)

     On July 26, 1993 Scn filed a second application for an OSC re

contempt. (CT 1628-739) The charged contempt was for providing a

declaration of Lawrence Wollersheim in the case of Scientology v.

Wollersheim, LASC No. BC 074815. (CT 1629; 1634,5; GA declaration,

6/4/93, CT 1686-90) On July 26, 1993 GA filed his opposition to the

application. (CT 1740-98) The OSC was signed by Judge Wayne. (CT

1601,2) On September 7, 1993 GA filed an opposition to the

OSC (CT 1800-98) and on September 10, Scn filed its response. (CT 1905-

1932)

     On July 8, 1993 Scn filed a verified complaint for damages and

for preliminary and permanent injunctive relief for breach of

contract, LASC No. BC 084462, hereinafter "Armstrong III." All the

documents filed in this case are missing. On August 27, 1993 the

LASC ruled that Armstrong II and Armstrong III were related cases.

(CT 1799) On September 14, 1993, GA filed a special motion to

strike the Armstrong III complaint pursuant to the SLAPP Statute.

On September 29 Scn filed an opposition, and on October 4, GA filed

a reply. On October 6 Judge Horowitz entered an order consolidating

Armstrong III with II and staying the action. On February 10, 1994

Scn filed a motion to vacate the stay, GA filed an opposition, and

on March 14 Judge Horowitz entered an order denying the motion.

     On July 23, 1993 Scn filed a verified complaint to set aside

fraudulent transfers and for damages; conspiracy, Marin SC No.

157680, hereinafter "Armstrong IV," against GA, TGAC and Michael

Walton. (CT 3071-86) Walton was GA's friend and part owner of the

Marin house to whom GA had transferred his ownership in August,

1990 at the time of his epiphanic renunciation. Scn charged that GA

had given Walton the house to make himself judgment proof in order

to prevent Scn from collecting on liquidated damages for GA's

planned breaches of the SA. That case, now part of the consolidated

case with the same number, Marin SC No. 157680, was not disposed of

by summary judgment, and remains to be tried. Walton filed

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an answer in Armstrong IV on November, 29, 1993 (CT 3102-7), and GA

and TGAC filed answers on November 30. (CT 3108-3155)

     On April 5, 1994 Scn filed in Armstrong II its verified second

amended complaint.(CT 1933-2037)

     On May 16, 1994 the Court of Appeal, Second District, Division

Four issued its opinion affirming the 5/28/92 preliminary

injunction order. (CT 2040-50) The Court stated:

"We find no abuse of discretion. We cannot say that the

trial court erred as a matter of law in weighing the

hardships or in determining there is a reasonable

probability Church would ultimately prevail to the

limited extent reflected by the terms of the preliminary

injunction." (CT 2048)

"This appeal is only from the granting of a

preliminary injunction which expressly did not decide the

ultimate merits. As limited by the trial court here, the

preliminary injunction merely restrains, for the time

being, Armstrong's voluntary intermeddling in other

litigation against Church, in violation of his own

agreement."(CT 2049)

     On June 15, 1994 Scn filed a motion for summary

adjudication of the second and third causes of action of the cross-

complaint. (CT 2080-249) The second cause of action is abuse of

process; the third is breach of contract. On July 20 GA filed his

opposition, (CT 2251-533) and on July 26 Scn filed its reply. (CT

2589-689) On August 16 Judge Horowitz granted Scn's motion for

summary adjudication, ruling as to breach of contract that the SA

did not prohibit Scn from referring to GA in the media, legal

proceedings or declarations.(CT 3019-21)

     A hearing was held on Scn's orders to show cause re contempt

before Judge Diane Wayne on July 28, 1994. On July 29 she issued

an order discharging the OSC and GA, ruling that GA's "assistance"

in Ford Greene's office was permitted "ministerial" conduct, that

providing Wollersheim with a declaration was permissible as

Wollersheim was a defendant in the relevant litigation, and that

GA's 12/22/92 letter did not assist in litigation. (CT 2690-2)

     On September 1, 1994, pursuant to stipulation, Armstrong II

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was transferred to Marin County. (CT 3023-5) Pursuant to a joint

application for consolidation filed September 12, 1994 (CT 3156-69)

Marin SC Judge Gary W. Thomas consolidated Armstrong II, III and IV

into one case, Marin SC No. 157680. Scn filed an amendment

substituting Solina Behbehani-Walton, Michael Walton's wife, as Doe

2. (CT 3170,1) On January 5, 1995 Mrs. Walton filed her answer.

(CT 3667-71)

     On November 16, 1994 Scn filed its motion for summary

adjudication of the fourth, sixth and eleventh causes of action of

plaintiff's second amended complaint. (CT 3172-3665) On January 13

GA filed his opposition. (CT 3875-4076; 4097-4224) The fourth cause

of action concerns GA's providing the Aznarans with a declaration

(CT 3184,5); the sixth concerns GA's giving an interview to CNN TV

and American Lawyer magazine; and the eleventh concerns GA's

providing a declaration to defendants in Scientology v Scott, USDC

No. CV 85-711 JMI and 85-7197 JMI (CT 3185,6). On January 19 GA

filed a supplemental declaration, along with evidence (CT 7400-

504), providing his conviction that what Scn was seeking to prevent

him from saying was religious expression which was above legal

prohibition. (CT 7400-7) Judge Thomas struck the declaration as it

was filed late. On January 20 Scn filed its reply. (CT 4077-96) A

hearing was held January 27. (Reporter's Transcript on Appeal,

hereinafter "RT, " V. 1, 1-15)

Judge Thomas granted Scn's summary adjudication motion as to

the fourth and sixth causes of action and denied it as to the

eleventh. In his order he stated in part:

     "As to all causes of action, defendant fails to

raise a triable issue as to whether the liquidated

damages provision is invalid. [] The law now presumes

that liquidated damages provisions are "valid unless the

party seeking to invalidate the provision establishes

that the provision was unreasonable under the

circumstances existing at the time the contract was

made." (Civ. Code, ¶1671, Subd (b).) Defendant's evidence

is not sufficient to raise a triable issue in that

regard. Although defendant states in his declaration that

he was not involved in negotiating the provision [] he

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goes on to say that he discussed the provision with two

attorneys before signing the agreement. [] Thus he

clearly knew of the provision yet chose to sign it. He

has not shown that he had unequal bargaining power or

that he made any efforts to bargain or negotiate with

respect to the provision. [] Defendant next states that

plaintiff's actual damages are zero []. However, "The

amount of damages actually suffered has no bearing on the

validity of the liquidated provision.." [] Finally

defendant points to the fact that other settlement

agreements contain a $10,000 liquidated damages

provision. [] This alone is not sufficient to raise a

triable issue that defendant has not shown that

circumstances did not change between 12/86 and 4/87 and

that those settling parties stand in the same or similar

position to defendant (i.e., that they were as high up in

the organization and could cause as much damage by

speaking out against plaintiff or that they have/had

access to as much information as defendant).

     "Defendant also has not raised a triable issue regarding

duress. Defendant's own declaration shows that

he did not execute the agreement under duress in that it

shows he carefully weighed his options. It certainly does

not show that he did something against his will or that

he had "no reasonable alternative to succumbing." [cite]

In addition, defendant is relying on the conduct of a

third party (Flynn) to establish duress, yet he sets

forth no fact or evidence in his separate statement

showing that plaintiff had reason to know of the duress.

     "Defendant fails to raise a triable issue regarding

obstruction of justice/suppression of evidence. The

settlement agreement expressly does not prohibit

defendant from disclosing information pursuant to

subpoena or other legal process. [cite] Nor is plaintiff

in this cause of action seeking to prohibit disclosure to

government agencies conducting investigations pursuant to

statutory obligations. [cite]. Even if a portion of the

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agreement could be construed to so prohibit (see e.g.,

¶10), plaintiff is not relying on that section. Nor has

defendant shown that the provision is so substantial as

to render the entire contract illegal. [cite]" (Order, CT

4236-9)

     On February 23 Scn filed a motion for summary adjudication of

the twentieth cause of action. (CT 4244-5234) In its twentieth

cause of action Scn sought a permanent injunction prohibiting GA

from violating any provisions of the SA. (CT 1963; Memorandum in

support of motion for summary adjudication, CT 4524.21,2)

     On March 17 Scn filed a motion for summary adjudication of

the thirteenth, sixteenth, seventeenth and nineteenth causes of

action. (CT 5298-661) The thirteenth cause of action concerned a

videotape interview GA gave at a CAN conference in 1992 (CT

1951,2); the sixteenth concerned GA's being interviewed by Newsweek

magazine (1953,4); the seventeenth concerned GA's being interviewed

by Entertainment Television; the nineteenth concerned GA's

providing a declaration dated 2/22/94 to be filed in the Scn v.

Fishman case. (CT 1957,8)

      On April 19 GA filed a notice Chapter 7 Bankruptcy (USBC, Nor.

Dist. Cal. No. 95-10911) and imposition of automatic stay. (CT

5850-2) On April 21 Judge Thomas stayed the state action. (CT 5853)

     Scn brought an adversary proceeding in the Bankruptcy Court

(Scientology v. Armstrong, USBC, Nor. Dist. Cal. No. 95-1164) which

resulted in the stay being lifted. (CT 5855) On September 18 GA

filed his opposition to Scn's motion for summary adjudication of

the twentieth cause of action, and his opposition to the motion for

summary adjudication of the thirteenth, sixteenth, seventeenth, and

nineteenth causes of action. (CT 5871-8553)

     On September 20, Scn filed an ex parte application for an

order sealing certain exhibits in GA's evidence, claiming that they

were trade secrets. (CT 8579-8598) GA filed an opposition (CT 8554-

77; 8599-617) Judge Thomas sealed certain of those exhibits pending

the hearing on Scn's motions. (CT 8618,9) On September 25 Scn filed

a reply in support of its summary adjudication motions. (CT 8620-

45) A hearing was held October 6. (RT V.2, 2-17)

     Judge Thomas issued an order granting Scn's motions for

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summary adjudication. (CT 8679,80) He stated:

     "Invalidity of Liquidated Damages Provision:

Defendant's evidence regarding his attorney's failure to

represent his interests (see facts 43 and 68) is hearsay

and/or not based on personal knowledge. The opinion of

defendant's attorney as to the validity of the provision

(see, e.g., facts 52-54, 57-60) is irrelevant and

hearsay. The fact that two other clients signed a

settlement agreement containing the same liquidated

damages amount (see facts 55-56 and 63-64) does not raise

an inference that the provision was unreasonable.

Defendant's evidence is insufficient to raise a

reasonable inference of unequal bargaining power (No

personal knowledge shown that plaintiff, as opposed to

Flynn, positioned defendant as a "deal breaker"; Flynn's

statements hearsay; no personal knowledge shown of

plaintiff's wealth; wealth alone does not raise inference

of unequal bargaining power since no showing defendant

desperate for money and had to accept on plaintiff's

terms). Defendant's evidence does not raise an inference

that plaintiff's calculation is "unfathomable"

(fourteenth cause of action seeks $50,000 for each of 18

letters; nineteenth cause of action is based only on

declarations, not on other contacts between defendant and

attorney/other clients). Defendant fails to establish how

he knows plaintiff had not been injured by his statements

at the time of the settlement.

     Duress: Flynn's statements to defendant are hearsay.

(See, e.g., D's facts 1C and 1D) Further defendant has

now shown that plaintiff was aware of Flynn's purported

duress of defendant. [cite] Contrary to defendant's

statement about duress, "careful weighing of options" is

completely inconsistent with an absence "of free exercise

of his will power" or his having "no reasonable

alternative to succumbing." [cites]

     Fraud: Flynn's statements to defendant (See fact 78)

are hearsay. The Court finds that the portions of the

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agreement cited by defendant (see facts 79 and 80) do not

establish a mutual confidentiality requirement. Paragraph

7(I) only prohibits the parties from disclosing

information in litigation between the parties; paragraph

18(D) only prohibits disclosure of the terms of the

settlement; defendant has not shown that plaintiff did

either of those things. Further, "something more than

nonperformance is required to prove the defendant's

intention not to perform his promise." [cite]

No Specific Performance,Breach of Express and

Implied Covenant : Defendant relies on the purported

mutuality requirement, which he has failed to establish.

Obstruction of Justice: This argument was rejected

by the Court in connection with plaintiff's first summary

adjudication. (See 2/22/95 Order at ¶6.)

First Amendment: First Amendment rights may be

waived by contract. [cite]

     On October 17, 1995 Judge Thomas signed Scn's order of permanent

injunction. (CT 8685-93)

     On October 26 Scn filed a motion for summary adjudication of

the first cause of action for declaratory relief in GA's cross-

complaint; severance of the fraudulent conveyance claim; dismissal

of unadjudicated breach of contract claims; and entry of final

judgment. (CT 8694-927) On November 17 GA filed his opposition (CT

9218-362), and on November 27 Scn filed its reply. (CT 9453-65)

     On November 2 GA filed a motion for reconsideration of the

grant of summary adjudication as to twentieth cause of action for

permanent injunction, (CT 8928-9045) and on November 16 an amended

motion for reconsideration. (CT 9046-217) GA filed under seal his

evidence previously stricken in Judge Thomas's 10/5/95 order. (CT

9218-20) On November 22 Scn filed its opposition to the motion for

reconsideration. (CT 9364-452) On November 29 GA filed his reply.

(CT 9466-519) A hearing was held December 1. (RT V. 2, 18-27)

     Judge Thomas issued an order denying GA's motion for

reconsideration, and granting in part Scn's motion for summary

adjudication. (CT 9521,2)

     On January 24, Judge Thomas signed an order granting Scn's

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motion to sever the fraudulent conveyance action, dismiss the

remaining breach of contract causes of action, enter final

judgment, and adjudicate Scn the prevailing party. (CT 9652-6)

     On January 24, 1996 Scn filed a renewal motion for summary

judgment of GA's cross-complaint. (CT 9526-642) On February 23 GA

filed his opposition (CT 9677-772) and on February 26 an amended

opposition. (CT 9749-9778.1) On March 1 Scn filed its reply. (CT

9773-8.1) A hearing was held March 8. (RT V. 1, 26-38) Judge Thomas

issued an order granting Scn's motion for summary judgment on GA's cross-

complaint.(CT 9780)

     On May 2, 1996 the Court entered its Judgment. (CT 9783-94)

     On July 8, 1996 GA filed his notice of appeal.

III. ARGUMENT

 

A. There is a Triable Issue as to Duress

     In his January 27, 1995 order on Scn's first summary

adjudication motion of certain causes of action of its complaint,

Judge Thomas stated, regarding GA's defense of having signed Scn's

SA because of duress, that GA's own declaration shows that he did

not execute the agreement under duress in that it shows he

carefully weighed his options. Judge Thomas also stated that GA

relied on the conduct of attorney Flynn, a third party, to

establish duress, yet provided no evidence showing that plaintiff

had reason to know of the duress. (CT 4236-9)

     In his opposition to Scn's second summary adjudication motion

of its complaint GA provided evidence of Flynn's being fair game

and a target of many Scn attacks from 1979 until the settlement.

(SS 1B, CT 8418-20) In that Scn was the source of the attacks which

included some 15 lawsuits, bar complaints and framing with a check

forgery, it is obvious that Scn knew of at least that aspect of the

duress on Flynn. Scn also knew of all its own acts of fair game

directed at GA up to that time, and at all the other settling

parties. It goes without saying that the purpose of fair game in

its many forms is to apply duress in its many forms to its

designated targets. GA filed as part of his evidence declarations

by several individuals who had knowledge of fair game. (Hana

Whitfield, CT 7780-7887;see, e.g., 7788-91, 7808-27; Dennis

Erlich, CT 7888-99 at 7891; Margery Wakefield, CT 7900-41 at 7903;

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Keith Scott, CT 7942-52 at 7945; Malcolm Nothling, CT 7953-9 at

7955, 7958; Jonathon Atack, CT 7960-8038, at 7962-4, 7977-80; Nancy

McLean, CT 8939-49 at 40,1; Lawrence Wollersheim, CT 8052-216 at

8053-59, 8074-212)

     That Flynn, GA and the other settling individuals were targets

of fair game is also shown in the "settlement agreement" between

Flynn and his clients, wherein is stated:

"We the undersigned, agree and acknowledge that many

of the cases/clients involved in this settlement...have

been subjected to intense, and prolonged harassment by

the Church of Scientology throughout the litigation...

that [Flynn] or his firm's members have been required to

defend approximately 17 lawsuits and/or civil/criminal

contempt actions instituted by the Church of Scientology

against him, his associates and clients, that he and his

family have been subjected to intense and prolonged

harassment..." (CT 5486,7)

     The idea that duress applied by a third party to

a person to get him to sign a document cannot be ascribed to the party seeking

the person's signature is not supported by common sense. If an

agent of a corporation holds a gun to the head of an attorney's

wife, and the attorney tells his client he must sign the

corporation's document or the attorney's wife will be killed,

although the corporate agent doesn't know what the attorney says to

the client, the agent and his corporation are still the source of

and responsible for the duress on the attorney's client. In this

case, the threat of Scn continuing fair game to Flynn, his wife,

family, law firm and clients was the gun held to all their heads.

That Scn was holding its fair game gun to everyone's head was the

communication Flynn relayed to GA to get him to sign Scn's

document.

     The nature of the SA itself is also an inference of duress

since what attorney, but one under tremendous duress, would have

his client sign such a document, knowing intimately the history of

fair game by the organization who concocted it. It is clear that

Flynn had, before presenting Scn's SA to GA, already agreed to sign

a contract to not represent or defend GA if GA was attacked in the

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future. Such a contract is illegal. What attorney, one as competent

as Flynn, would allow his client to be so exposed and defenseless

to future attacks, except an attorney under duress, or one

thoroughly corrupted. There is too much evidence of duress to

believe that Flynn was just corrupt.

     The duress at the time of the settlement, contrary to how it

might be viewed at first glance, is actually demonstrated by Scn's

continuing to fair game GA afterward. Tricking and lying to a

designated target are parts of the basic fair game doctrine. CT

6934; SS 1A, CT 8412) Scn tricked GA into signing its document by

lying about ceasing its attacks. This was acceptable Scn tactics

because GA is designated an SP and hence fair game.

     Duress is also evidenced by Flynn's communications to GA

throughout this litigation. Flynn has continually told him that he

would like to help GA but that he is afraid to. Flynn signed a SA

with Scn as well, and has refused to come forward throughout this

litigation, despite telling GA that he "would be there for [him]"

if he had any trouble with Scn after the settlement. (GA

Declaration, 7/20/94 CT 2298) GA filed a declaration executed April

7, 1995 stating what Flynn would testify to if he were released by

Scn from its contract with him. (CT 7678-83) Contracts which limit

an attorney's ability to practice or limit his clients are illegal.

     In his order of October 6, Judge Thomas stated again that GA

had not shown that Scn "was aware of Flynn's purported duress of

defendant." (CT 8679) That is not the issue; the issue is Scn's

duress of Flynn, GA and everyone else involved. What Flynn stated

to GA may be hearsay, but what Scn did over its years of attacks on

Flynn and GA, and what it would continue to do if GA didn't sign is

the source of the duress.

     Judge Thomas stated that "careful weighing of options" is

completely inconsistent with an absence "of free exercise of [GA's]

will power" or his having "no reasonable alternative to

succumbing." That cannot be true. A person with a gun at his head

may weigh his options just as carefully as a person with free

exercise of his will. His options are, however, radically

different. In this case, GA's options were either sign Scn's

document or have Scn continue to threaten and attack his attorneys,

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their families, the 20 other people who wanted out from the threats

and attacks, and himself. Also included in GA's weighing of his

options was Scn's promise through Flynn that it would cease all its

fair game activities against everyone. Flynn's statements to GA

that the SA's prohibitions were not worth the paper they were

printed on and unenforceable, although perhaps ultimately true, are

also reflective of duress, and were also part of GA's weighing of

his options. Some people carefully weigh things; some people don't.

It is the nature of the options being weighed, carefully or not,

which is the true indicator of duress. Judge Thomas did not examine

GA's options. These are options which must be examined by the trier

of fact.

 

B. There is a Triable Issue as to Fraud

     GA has stated throughout this case that he intended to honor

the silence and confidentiality conditions of the SA agreement and

that he understood Scn was to do likewise. (CT 6916) Indeed Scn's

being silent about him, and therefore ceasing to lie about him, was

inherent in Scn's promise to cease all fair game activities, as

relayed by Flynn. Scn has maintained throughout this case that it

may say whatever it wants about GA publicly, and file whatever it

wants in legal proceedings, and is not bound by any agreement to

refrain from such acts. GA only began to speak out about Scn and

his experiences after Scn published and filed false statements

about him and he perceived that Scn was using his silence to

obstruct justice.

     In his opposition to Scn's second summary adjudication motion

GA presented considerable evidence of Scn's promise of mutuality as

an inducement to have him settle his cross-complaint. This included

certain parts of the SA, notes of telephone calls from Scn attorney

Lawrence Heller, and a motion and supporting declaration authored

by Heller stating that confidentiality was mutual. (CT 5925-8;

5943,4; Phone notes, CT 6227-37; Transcript, CT 6238,9; CT 5904;

6135-7; CT 6919; CT 6970; CT 5904; SS 105H, 8493,4; SS 103, CT

8490)

     In his order granting summary adjudication, Judge Thomas only

commented on two of the SA parts, but did not mention Heller's

telephone statements to GA or Heller's sworn statements. (CT 8680)

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Judge Thomas stated that paragraph 18(D) only prohibits disclosure

of the terms of the settlement. But Paragraph 18(E), which he did

not take note of, states: "The parties further agree to forbear and

refrain from doing any act or exercising any right, whether

existing now or in the future, which act or exercise is

inconsistent with this Agreement." (SS 99, CT 8487,8) GA still

believes that this means that Scn must forbear and refrain from

publishing and filing anything about him, other than " stating that

this civil action (Armstrong I) is settled in its entirety." (SA,

18(D), SS 99, CT 8487,8) If GA had understood that Scn's forbearing

and refraining from acts inconsistent with the SA meant that Scn

would publish or file whatever it wanted about him in the future,

he would have, as he has said consistently throughout this case,

never signed. It is clear that the SA was cleverly worded by clever

lawyers, who were more clever than GA.

     Judge Thomas also stated that "something more than

nonperformance is required to prove the defendant's intention not

to perform his promise." But GA presented a great deal more to

prove Scn's representation of its intention, and to prove that

there is a triable issue regarding both parties' intention.

     In the fall of 1989 attorney Heller threatened GA with

"hassles" if his deposition in the Corydon litigation went forward,

and threatened him with being sued if he testified about his

knowledge even though pursuant to a subpoena. In this conversation

Heller told GA he should honor the SA because Scn had honored it,

and that Scn had signed a non-disclosure agreement as well and had

lived up to it. GA told Heller that Scn had filed declarations

about him, put out dead agent documents on him, and used an illegal

videotape of him. GA's notes of the Heller calls and his recording

of his side of the final conversation support his declaration

containing Heller's comments. (CT 5925-8; 5943,4; Phone notes, CT

6227-37; Transcript, CT 6238,9; CT 5904; 6135-7; CT 6919; CT 6970;

CT 5904; SS 105H, 8493,4; SS 103, CT 8490)

     In a motion he filed in Corydon to prevent GA's deposition,

Heller stated:

"One of the key ingredients to completing these

settlements, insisted upon by all parties involved, was

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strict confidentiality respecting: (1) the Scientology

parishioner or staff member's experiences with the Church

of Scientology; (2) any knowledge possessed by the

Scientology entities concerning those staff members or

parishioners." (Underline in orig.) (SS 102, CT 8489,90;

CT 5998)

In his declaration Heller stated:

"The non-disclosure obligations were a key part of

the settlement agreements insisted upon by all parties

involved." (SS 101, CT 8488,9; CT 6003)

Heller also stated in his declaration:

"The contractual non-disclosure provisions were the

one issue which was not debated by any of the parties or

attorneys involved." (CT 6003)

     Heller's statements make absolutely clear Scn's intention of

mutuality as it was promised to GA to get him to sign its contract.

The whole of Scn's litigation to enforce what it now claims is a

non-mutual contract in order to be able to further fair game GA,

is something far more than mere nonperformance, and far more than

what is required to prove Scn's intention not to perform its

promise.

 

C. There is a Triable Issue as to Justification

     Even, assuming arguendo, that the silence provision only

applied to GA, and that Scn was not required by contract to remain

silent about him, GA was still manifestly justified in speaking out

as soon as Scn did.

     Scn claims that it can say whatever it wants, no matter how

false or injurious, and GA cannot respond. That is essentially what

Judge Thomas has ruled in ignoring GA's defense of privilege. GA is

justified in responding to protect his reputation, and indeed his

life. This a matter for the trier of fact to decide and cannot be

dispensed with on summary judgment.

     Putting aside defenses and arguments of free speech, freedom

of religion, freedom from slavery, due process and assembly, if Scn

had remained silent about GA, saying no more than that the parties'

litigation was settled in its entirety, and GA had gone public

about his Scn experiences, conceivably Scn could have legally

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enforced the SA.

     If, on the other hand, Scn had accused GA of being a serial

chain saw murderer; taken out a full page ad or a hundred full page

ads, in the New York Times, in the Washington Post, and in

Newsweek, all accusing him of being a serial chain saw murderer;

bought a satellite, a daily hour on network TV, and produced a show

called "Gerry Armstrong - Serial Chain Saw Murderer," it is

inconceivable that GA could be judicially prevented from responding

in the media, and to anyone who would listen, in order to defend

his reputation; in order to show that he is not a serial chain saw

murderer and to explain what entity is attacking him and why.

     Somewhere between GA discussing his Scn experiences without

Scn having said anything about GA, and Scn spending a billion to

run its GA serial chain saw murderer black PR campaign, there is a

line crossed where GA becomes justified in breaching his contract

in order to defend his reputation, and his life. It is the line

Judge Breckenridge recognized in the Armstrong I trial when he said

that in 1982, GA, being the target of fair game, was "privileged to

reveal information confidentially acquired by him in the course of

his agency in the protection of a superior interest of himself or a

third person." (CT 5952) In 1991, GA was no less fair game's

target, and no less privileged to respond to Scn's attacks, even

though his responses might be, absent Scn's attacks, breaches of

contract.

     That is a line for the trier of fact, in this case, a jury, to

determine. It is a line involving a look at what a reasonable

person would have done. It is a line involving a set of facts

completely ignored by Judge Thomas in his grant of Scn's summary

judgment. If GA's actions were reasonable, then a contract which

prevents them must be unreasonable. It is indeed unreasonable that

GA who had been fair game would continue to be fair game.

     In truth, Scn's post-settlement attacks on GA are more

vilifying, and call for a different, more complete response, than

does a libel like GA being a serial chainsaw murderer. Scn gives

its black PR titles like "False Report Correction," (CT 7598, 7612)

makes it look authoritative by providing many "facts," (CT 7514,5)

or presents it in the form of a sworn affidavit. (CT 6068) Scn's

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statements about GA are black PR going beyond his Scn experiences;

e.g., claiming falsely that he posed nude in a newspaper (CT 7514;

7524) or, also falsely, that he has AIDS. (CT 8242; 8676,7) These

are matters to be examined by the jury to determining if GA acted

reasonably in responding as he did, and whether first of all Scn

crossed over the line.

     Sadly, there is sometimes an assumption of guilt in the public

mind when a charge is not responded to. There can be little doubt

that Scn would use GA's failure to respond to its calumnies to

further amplify the illusion of his guilt it manufactured in that

public mind. No one can be compelled to respond to false charges

made to the public, and it is the most courageous man who does not

respond. But no one also can be prevented by human agency from

responding to falsehoods, definitely not by our Courts. GA has been

moved to respond, no matter how uncourageous or dangerous

responding might be, so that this terrible injustice can be seen

and stopped, and perhaps stopped from happening to others.

  

D. The Settlement Agreement Obstructs Justice

     In his order granting Scn's first motion for summary

adjudication Judge Thomas stated that there was no triable issue

regarding obstruction of justice/suppression of evidence because

the SA does not prohibit GA from disclosing information pursuant to

subpoena or other legal process. (CT 4237) But the fact that the SA

allows GA to testify pursuant to subpoena does not automatically

mean that the SA does not have as its object obstruction of

evidence. The facts of GA's relationship with Scn and other

litigants, particularly Scn's litigant victims (see, e.g., CT

5486,7), and the facts of the uses to which Scn put the SA are

essential to determining whether it obstructed justice. Thus an

examination by the trier of fact is necessary.

     Although instances of the SA acting to obstruct justice

abound, one will serve to show that obstruction is its object. On

February 8, 1994 Scientology leader David Miscavige, filed in the

Scientology v. Fishman case, supra, a declaration (CT 7625.1-65) in

which he attacked GA, claiming, inter alia, that GA advised people

to falsely accuse Scn of criminal acts, that the IRS repudiated

GA's credibility, and that in a police-sanctioned investigation GA

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acknowledged his motives were to overthrow Scn leadership and gain

control. (CT 7655,6) On February 22, 1994 GA executed a declaration

correcting the falsehoods in Miscavige's declaration. GA's

declaration was filed in Fishman March 9, 1994 as part of

defendants' pending motion for costs. (CT 5579; 5646) GA appended

to his declaration as an exhibit a public announcement by then LAPD

Chief Daryl Gates that the " authorization" given to Scn agent

Eugene Ingram by police officer Phillip Rodriguez to eavesdrop upon

or record the confidential communications of GA or attorney Flynn

(CT 5641) was invalid and unauthorized and not a correspondence

from the LAPD. (CT 5643)

     It would have been obstructive of the justice the Fishman

defendants were due if GA had not responded and Miscavige's lies

about him had adversely influenced the Judge in the case. That is

exactly what Scn sought with its SA and its judicial enforcement.

It would also have been obstructive of the justice GA was due in

the Fishman case, which is enshrined in the litigant's privilege.

(See opposition to motion for summary adjudication, CT 3886-92) It

would be obstructive of the justice GA is due and every party in

all Courts of California and the United States are due if Scn can

lie when it wants about him and prevent him from responding to

correct its sworn to lies. Since the SA's purpose is to silence GA

so that Scn can say whatever it wants about him, his credibility,

litigation, testimony and character with impunity, including in

legal proceedings, it is obstructive of justice.

     There was no opportunity for the Fishman defendants to

subpoena GA for his testimony to refute Miscavige's charges.

Discovery was closed, and in fact the case had been dismissed, as

can be seen by the fact that GA's declaration concerned defendants'

motion for costs. There are many instances in litigation where

there is neither time nor legal opportunity to take someone's

deposition to obtain testimony to present needed information or

refute presented misinformation. Additionally, requiring one party

in litigation to obtain third party testimony by deposition that he

is prevented from obtaining by declaration only by the opponent's

" contracts,"senselessly, but dramatically, runs up litigation

costs. That is one of Scn's tactics and is in itself obstruction of

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justice.

     Judge Thomas also stated in his January 27, 1995 order that,

since Scn was not seeking in the causes of action on which it then

sought summary adjudication to prohibit disclosure to government

agencies conducting investigations pursuant to statutory

obligations, GA had not raised a triable issue regarding

obstruction of justice. He went on to state that "even if a portion

of the agreement could be construed to so prohibit (see e.g., ¶10),

plaintiff is not relying on that section, nor and has defendant

shown that the provision is so substantial as to render the entire

contract illegal." (CT 4236-9) But that paragraph certainly is

indicative of the overall object of the SA being the obstructive of

justice, and thus having an illegal objective. The SA is very clear

about assistance to government agencies:

"[GA] agrees that he will not assist or advise anyone,

including individuals, partnerships, associations,

corporations, or governmental agencies contemplating any

claim or engaged in any litigation or involved in or

contemplating any activity adverse to the interests of

any entity or class of person (the beneficiaries)"

     The fact that the non-assistance to governmental agencies was

itself illegal is evidenced by Judge Thomas's permanent injunction

which expressly excludes "government organ[s] or entit[ies]" from

its prohibitions. If the prohibiting of assistance to government

entities is obstructive of justice and illegal, is not the

prohibiting of assistance to non-government entities equally as

obstructive and equally as illegal? Non-government entities are

equally due justice, perhaps even more due justice than the

government entities, whose responsibility it is to provide justice.

     The purpose of the SA is to tilt the legal playing field in

Scn's favor. This should be declared illegal. For justice to be

obstructed it is not necessary to obstruct the whole justice

system. For justice to be obstructed it is enough for one side to

use any obstruction to gain an unfair advantage. The SA certainly

gains Scn an unfair advantage over GA, and there is much evidence

that the SA gives Scn an unfair advantage over all its litigant

adversaries. (See, e.g., Long affidavits filed in Scn v.Miller,

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supra., CT 6011-102) Adding into the legal arena the other SAs

signed by the other settling litigants in December, 1986, including

attorneys, the obstruction becomes gargantuan.

     The obstruction of justice inherent in the SA is compounded by

its judicial enforcement. Because GA filed his declaration in

Fishman, as, pursuant to the litigant's [absolute] privilege, he

should have, to correct Miscavige's lies, Scn added the declaration

as a cause of action in its complaint, and ultimately was awarded

$50,000 in liquidated damages. (CT 5312,3; 8679)

     The SA's obstruction of justice is also compounded by Scn's

proclivity for attempting its enforcement and using it as a threat

in a scope even beyond its already obstructive language. Scn

brought contempt of court charges against GA for 10 alleged

violations of the preliminary injunction issued May 28, 1992 by

Judge Sohigian. (CT 0428-639) These contempts were discharged July

29, 1994. (CT 2690-2) Before he responded to Scn's attacks GA was

threatened by Scn attorney Heller who said that GA could be sued if

he testified, even though he had been subpoenaed in the Corydon

case, and that to prevent his being sued GA should refuse to answer

Corydon's attorney's questions. (CT 5926-8) The trier of fact in

determining whether the SA's object is to obstruct justice must

look at the nature of the entity using it and that entity's

intentions. Judge Thomas did not do this.

     GA again argued that the SA obstructs justice in his

opposition to Scn's second summary adjudication motion. (CT 8270,1)

Judge Thomas commented merely that the argument had been rejected

with Scn's first summary adjudication. (CT 8679)

     In his separate statement GA included a statement in a

declaration by Scn member Long that prior to December, 1986 GA had

testified in 15 cases a total of 28 trial days, had been deposed

for 19 days, and had executed 28 declarations in 15 cases all of

which concerned Scn. (SS 135, CT 8520; Long Declaration, CT 7742)

The Court of Appeal in denying GA's appeal from the 5/28/92

injunction stated that it merely restrains, for the time being,

GA's "voluntary intermeddling" in other litigation against Scn. (CT

2049) GA has never intermeddled in those litigations. His testimony

and assistance has been sought by the parties in those cases.

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Nothling called him from South Africa (See, e.g., CT 7004); Yanny

called him from Los Angeles (See, e.g., CT 7004); Corydon

subpoenaed him (CT 5990-4); Fishman's attorney put GA on his expert

witness list; Miscavige involved him by filing a false sworn

declaration. (CT 7655,6)

     The answer to Scn's problem with GA's testimony, and with

anyone's testimony, concerning the discreditable facts about its

nature and activities is not to attempt to suppress or prohibit

that testimony with its illegal SA and to punish GA, or anyone, for

testifying. Scn's answer, if it wishes to escape liability, is to

remove those discreditable facts from its nature and activities so

that there is nothing to be held liable for. When Scn does so,

GA's, and anyone's, testimony regarding discreditable facts will no

longer be relevant and will no longer be sought.

     Indeed it is the vital corrective or reformative function of

the justice system which Scn seeks to avoid or obstruct with its

dependence on its SAs and their enforcement. It is not in the

public interest that the justice system lose its power to bring

about correction and reform by enforcing obstructive contracts

which suppress knowledge of matters truly needing correction and

reform. As Judge Geernaert said when Scn urged him to enforce the

same SA Judge Thomas has enforced:

"I know we like to settle cases. But we don't like

to settle cases and, in effect, prostrate the court

system into making an order which is not fair or in the

public interest." (CT 7700)

     Scn seeks to prostrate the court system. The system, on which

everyone depends to prevent injustice, must let Scn, and everyone,

know that it is not for sale and will not be prostrated for any

amount of money.

     It would be obstructive of justice to prevent perceived

obstruction of justice from being reported. If a Court failed to

acknowledge obstruction of justice as obstructive it would be

obstructive to prevent that fact from being reported. If the court

system failed to acknowledge obstruction of justice as obstructive

it would be obstructive to prevent any of those facts from being

reported to the media, to government and to anyone who would

-40-

 

listen. That is the situation here. The reporting of obstruction of

justice cannot be obstructed. The reporting of perceived

obstruction of justice, or any other crime, cannot be prohibited

until such time as the obstruction or other crime is proven. GA has

been unshakable in his conviction that the SA and Scn's enforcement

are obstructive of justice since he first petitioned the Court of

Appeal for permission to respond in the Armstrong I appeal in 1990.

(CT 6119-21) He continues to make the argument the moment these

words are typed. His argument is not without merit. For that reason

alone he cannot be silenced by the obstructive SA, nor by the Marin

Court's enforcement, and it is enough reason for this Court to rule

that there is a triable issue regarding that obstruction.

 

III. ARGUMENT

E. There is a Triable Issue as to the Validity
of the Liquidated Damages Provision

     Judge Thomas stated in his January 27, 1995 order that GA had

failed to raise a triable issue as to whether the liquidated

damages provision is invalid, and that, quoting Civ. Code, §1671,

Subd (b), the law presumes that liquidated damages provisions are

"valid unless the party seeking to invalidate the provision

establishes that the provision was unreasonable under the

circumstances existing at the time the contract was made." Judge

Thomas stated that, although GA states that he was not involved in

negotiating the provision, GA goes on to say that he discussed the

provision with two attorneys before signing the agreement. Judge

Thomas stated that GA clearly knew of the provision yet chose to

sign it, and that GA had not shown that he had unequal bargaining

power, or that he made any efforts to bargain or negotiate with

respect to the provision. Judge Thomas stated that GA pointed to

the fact that other SAs (the Aznarans') contain a $10,000

liquidated damages provision, but that this alone was not

sufficient to raise a triable issue that GA did not show that

circumstances did not change between 12/86 and 4/87 and that the

Aznarans stood in the same or similar position to GA. Judge Thomas

described the same or similar position as being as high up in the

organization and able to cause as much damage by speaking out

against Scn, or having access to as much information as GA.

     It is up to the trier of fact to decide what all the

-41-

 

circumstances were at the time the SA was presented to GA for

signing and whether the liquidated damages provision was

unreasonable under those circumstances. The circumstances at the

time and leading up to that time were complex, and involved many

people and many complex legal and personal relationships. GA

presented more than sufficient evidence to raise a question

concerning the unreasonableness of the liquidated damages, and the

Judge Thomas erred in his grant of summary adjudication.

     In his opposition to Scn's second summary adjudication motion

GA again argued the unenforceability of the liquidated damages

provision. (CT 8244-50; SS 41-88, CT 8324-40) GA provided the

deposition testimony of two Flynn "clients," Nancy Rodes and

Michael Douglas, both of whom signed similar SAs to that signed by

GA. Each of their SAs contained a $50,000 liquidated damages

provision. Rodes and Douglas each were paid $7,500 to settle their

claims. (SS 55,6, CT 8329,30; SS 63,4, CT 8331,2; Deposition

transcript of Michael Douglas, CT 7702-10; Deposition transcript of

Nancy Rodes, CT 7716; "Mutual Release Agreement," CT 7732-40) Rodes

testified that she had been told by Flynn that the "settlement

agreement" is "not really enforceable...no legal document can

really take away your rights." She testified that in her decision

to sign she relied "to a fairly large extent" on Flynn's telling

her that he thought the provisions with respect to maintaining

silence were not enforceable. (SS 57-60, CT 7726)

     GA provided his own testimony that the liquidated damages

provision was unreasonable at the time because it applied to over

seventeen years of his life, about which it was impossible for him

to be silent. On its face the SA did not permit GA to communicate

his experiences to a doctor, lawyer, girlfriend, counselor,

minister, or any agency of the government; or face a $50,000

penalty. (SS 44, CT 8325; 8218) Scn was not intending to honor its

promise to cease fair game but was intending to subject GA and his

friends to more attacks including publishing its own untrue and

perverse accounts of his history. (SS 45, CT 8326; 8218,9) Scn's

intention is shown by the fact that immediately after the

settlement it provided its account of GA's history and documents

concerning him to at least the Los Angeles Times, and shortly

-42-

 

thereafter to at least the London Sunday Times. (SS 46, CT 8326;

8218) Since Scn knew that it was going to continue to fair game GA

after the settlement, continue the public controversy, and very

possibly draw GA into that controversy in order to defend his

reputation, it was patently unreasonable to require of him a

$50,000 per utterance liquidated damages provision in Scn's SA.

     GA testified that the unreasonableness of the liquidated

damages provision is clearly demonstrated by the way Flynn dealt

with it. When GA protested the provision and the impossibility of

being silent about his seventeen years of experiences, Flynn said,

"It's not worth the paper it's printed on;" "it's unenforceable."

Flynn also said that "[Scn] won't change it." For that reason and

that reason alone there was no discussion of the liquidated damages

provision beyond that point. (SS 52, CT 8328; 8219-20) GA saw the

liquidated damages provision at the time of the settlement as

stupid, cruel and diabolic. Flynn said "It's not worth the paper

it's printed on;" but "[Scn] won't change it." Armstrong was left

with only one option: if Scn wants to keep the stupid, cruel and

diabolic provision in its unenforceable SA, so be it. (SS 53, CT

8328,9; 8220)

     GA testified that Scn had not been damaged in any way

monetarily by any statement he had made at any time prior to the

settlement; that there was no relationship between actual damages

sustained by Scn and the amount of the liquidated damages; that all

the money Scn spent on litigation concerning GA has been to further

its fair game goals in violation of his basic human and civil

rights, not on repairing damage he has done. (SS 49-51, CT 8327,8;

8219)

     GA testified that he had an utterly unequal bargaining power

at the time of the settlement and yet made a sincere effort to

address the provision and negotiate, only to be told by Flynn "it's

not worth the paper it's printed on. GA was positioned by Flynn and

Scn as a "deal breaker." He was flown to Los Angeles from Boston

without seeing one word of the SA, and after Flynn's other clients

had been brought to Los Angeles. He was told by Flynn that Scn

would continue to subject GA, all Flynn's clients, and Flynn

himself to fair game unless GA signed. (SS 67,8, CT 8335,6; 8220,1)

-43-

 

     GA testified that Scn had millions of dollars, a formidable

litigation machine in-place and operating, and GA's own attorney

intimidated and compromised. (SS 71, CT 8337; 8221) Flynn's co-

counsel in GA's case, Julia Dragojevic, was not representing his

interests, but was going along with whatever deal Flynn obtained

from Scn. (SS 70, CT 8446, 8221)

     Flynn's statement that "it's not worth the paper it's printed

on" was not a shock to GA because he had been required to sign

similar "non-disclosure" documents with liquidated damages

provisions while inside Scn, and Flynn had stated many times to him

that such documents were "not worth the paper they were printed

on." These documents were also found to be unenforceable by the

Court in Armstrong I. (SS 73, CT 8337,8; 8221; CT 6030)

     If Flynn had stated or even implied at the 1986 settlement

that the liquidated damages provision was valid and enforceable GA

would never have signed. (SS 74, CT 8338; 8221) It is ironic that,

although Flynn did not properly represent GA's interests, and in

fact succumbed to the point of acting as Scn's agent, he was

truthful in his representation that the liquidated damages

provision was not worth the paper was printed on. It still isn't.

     In his October 6 order granting Scn summary adjudication Judge

Thomas stated regarding the liquidated damages provision that GA's

evidence regarding Flynn's failure to represent him was not based

on person knowledge. (CT 8679) GA's evidence of Flynn's failure to

represent him was of course based on person knowledge. GA was

there, spoke with Flynn, and had many personal dealings with Flynn

before and after the settlement. GA was the client, and Flynn's

employee. Flynn's non-representation is also evidenced by the SA

itself, and his signing side deals with Scn.

     Judge Thomas stated that GA's evidence did not raise a

reasonable inference of unequal bargaining power, and that he had

no personal knowledge of Scn's wealth. (CT 8679) But GA did have

personal knowledge of Scn and its wealth and power, having been

inside for over twelve years, much of that near the organization's

top. He also had personal knowledge of its litigation machine and

fair game, from his intelligence position inside Scn, because he

was himself a fair game target, and because he had worked with

-44-

 

Flynn in the Scn litigation.

     Judge Thomas also stated that Rodes' and Douglas's signing SAs

with the same liquidated damages amount as GA did not raise an

inference that the provision was unreasonable. (CT 8679) But the

Rodes and Douglas SAs do raise an inference of unreasonability.

They were paid $7,500 and yet had the same liquidated damages

figure in their SAs, $50,000 per utterance. Rodes, like GA, was

told by Flynn that the provision was unenforceable. Scn makes much

of GA's being paid over $500,000 to settle his case. In truth it is

irrelevant what Scn paid GA to settle his cross-complaint, or for

anything else. It did not know what it was paying him since the

amount of the settlement was confidential between Flynn and his

clients. (CT 117,8) The issue is whether the liquidated damages

provision was unreasonable if GA had been paid $0. Did the fact

that GA was paid $500,000 mean that his cross-complaint was valued

at $492,500 and his silence was worth $7,500? Or did it mean that

GA knew 65 times as many discreditable things about Scn as Rodes

and Douglas?

     In his January 27, 1995 order Judge Thomas had stated that the

disparity between the Aznarans' liquidated damages of $10,000 and

GA's of $50,000 had to do with changing circumstances between 12/86

and 4/87, or how high up in the organization they were relative to

GA, or whether they were able to able to cause as much damage by

speaking out against Scn, or had access to as much information as

he did. (CT 4236) The only fact that is absolutely clear when

examining the 6 documents containing liquidated damages provisions

filed in this case is that there is a triable issue regarding the

circumstances at the time of GA signing of the subject SA

containing the liquidated damages provision, and consequently a

triable issue regarding its validity.

 

F. The Settlement Agreement Violates Freedom of Speech

     In his opposition to Scn's motion for summary adjudication of

its twentieth cause of action, GA argued that what Scn sought with

its SA and its enforcement was to impermissibly prohibit his

Constitutionally guaranteed First Amendment rights. (CT 8272,3)

Judge Thomas's ruling on GA's presented defense was incredibly

clipped: "First Amendment: First Amendment rights may be waived by

-45-

 

contract. (See ITT Telecom Products Corp. v. Dooley (1989)214

Cal.App.3d 307, 319.)" (CT 8680)

     But Dooley concerns an employee's agreement not to disclose

confidential information. It is not at all similar to the situation

in this case. None of the information GA possessed was

confidential. Indeed, Judge Breckenridge stated in his decision,

affirmed on appeal:

"[GA] and his counsel are free to speak or communicate

upon any of [GA's] recollections or his life as a

Scientologist or the contents of any exhibit received in

evidence or marked for identification and not

specifically ordered sealed." (CT 5950)

     The Court of Appeal which affirmed the decision also refused Scn's

effort to have the record on appeal sealed. (CT 6903) All of what

GA has to say is already a matter of public record, and in no way

confidential to anyone.

     This case is different from Dooley because it involves, not

confidential information learned on a job, but GA's experiences,

now over a 28 year period, with an organization which has subjected

him, and continues to subject him, to the nightmare that goes by

the name fair game. This case is profoundly different from Dooley

because it involves the unthinkable concept of Scn being able to

say whatever it wants about GA, in exercise of its free speech

right and in furtherance of its fair game doctrine, while he may

not exercise his free speech right to defend himself. Pursuant to

the SA and the permanent injunction, every Scientologist, every Scn

lawyer and every Scn agent can say whatever they want about GA and

he may not respond. Dooley does not support such an obnoxious idea.

     That "First Amendment [free speech] rights may be waived by

contract" does not mean that all free speech rights may be waived

by contract. As with all contracts, a contract waiving the very

basic right of free speech must be reasonable, and must be legal.

There is a limit, and that is a limit to be decided by the trier of

fact, not hidden away with the gloss that first amendment rights

may be waived by contract.

     Could the US require, in order to settle a case, that a person

never again mention this great nation? Unless of course subpoenaed?

-46-

 

Could California require to settle a case, or for any reason, that

a person never again mention this great state? Or rather, would any

court consider enforcing such " contracts?"

     Could a court enforce a contract requiring that a person not

discuss the Republicans? The Democrats? The Communists? Politics?

Would any court entertain a lawsuit to collect on a $50,000

liquidated damages provision in such a contract? If free speech

rights can be waived by contract, could a court enforce a contract

someone signed, perhaps because his attorney told him it was not

worth the paper it was printed on, in which he agreed to not speak

at all, about anything?

     No. There must be a limit to what speech can be contracted

away. Here, GA has been sued 5 times, driven into bankruptcy,

driven from his job, black PRed and pilloried. The purpose of the

First Amendment guarantee of free speech is to provide a defense

for all citizens from such things, and indeed to prevent them from

happening.

     It is perhaps acceptable that Scn pays people, or even

contracts with them for their silence. It is, however, completely

unacceptable and impermissible for our Courts to enforce such

contracts. When Courts cease such enforcement, Scn will perhaps

cease its determination to silence people and its determination to

rewrite history. The people will then get what they are owed in

order to make informed choices which is their due: the free flow of

truthful information.

 

G. The Settlement Agreement Violates the Thirteenth Amendment

     Slavery is a state in which the slave is subject to a master

and does not have the recourse to defenses available to free men.

GA is subject to Scn's fair game abuse and pursuant to the SA, and

now the permanent injunction, GA may not respond. Scn and the Marin

Court have acted to dispossess GA of the right to defend himself

that free men possess. Scn is using the Courts to make and keep GA

its punching bag and slave.

     The Thirteenth Amendment made slavery illegal in the United

States. At the end of the twentieth century, clever lawyers in the

employ of an entity that would enslave people, have found a way to

reinstitute it. Psychological peonage is still peonage. Attorney

-47-

 

Flynn did not have the legal right to sell GA into slavery, and Scn

does not have the legal right to keep him there. The SA and all

such "contracts" should be seen for the instruments of slavery they

are, and struck down summarily.

 

H. The Settlement Agreement Violates Freedom of Religion

     Scn claims to be a religion, and claims all the extraordinary

benefits conferred by the Constitution on religions. It claims that

it is organized solely for religious purposes and that its policies

and bulletins are "scriptures." (SS 138-143, CT 8522-4; revised by-

laws, CT 7746, 7748,9)

     It is axiomatic that there is no freedom of religion where

there is no freedom to criticize, oppose or reform religion. The

US was founded in great part by people fleeing "religious

persecution" for opposing, criticizing or seeking to reform a

religion which had the power, often provided by the State, to

persecute them. The US recognized the need for its citizens to be

free from religious persecution in the Religious Expression and

Religious Establishment Clauses in the First Amendment to the

Constitution.

     Religious expression in the US has traditionally only been

limited by an overriding State interest or need; e.g., to maintain

peace, safety or morality. It is not permitted to destroy a fellow

citizen as an expression of one's religion. It is not permitted

religious expression to yell "hell fire" in a crowded theater. It

is not permitted to enter private property, to wiretap, to steal,

or to commit fraud, although called for in one's religious

"scriptures."

     The prohibition against the State's establishment of a

religion has traditionally been interpreted to mean that no

religion will be favored or given more support by government than

any other religion. Christianity and Christians, Buddhism and

Buddhists, and Scientology and Scientologists will be treated by

government and all its branches in every way equally. Also anti-

christians, anti-buddhists and anti-scientologists will be treated

in every way equally.

     With its SAs Scn is attempting to suppress and eliminate

criticism; as well as opposition and reformation efforts. Any

-48-

 

court's enforcement of Scn's SA necessarily involves the State in

one religion's suppression and elimination of criticism. Judicial

enforcement also results in the promotion and establishment of Scn

by the removal of opposition to promotion and establishment. Unless

the State is also willing to become involved in and support every

other religion's suppression or elimination of criticism, it may

not assist Scn in its campaign.

     It is, however, inconceivable that any US Court would

prosecute someone who under any circumstances signed a contract

which required that he not discuss God, Jesus Christ, the Holy

Bible, or his experiences in the Christian religion; or for that

matter Allah, Islam, Mohammed, the Koran, the Vedas, Krishna, or

Xenu. Scn must learn that no Court will or may prosecute someone

for breaking one of its unholy contracts which requires that he not

discuss L. Ron Hubbard, Scn, Scientologists, Scn scriptures and the

person's experiences in that religion.

     It is inconceivable that a Christian church in the US would do

what Scn has done to silence its critics. But even Christianity,

although it would never silence anyone about itself, must not be

given the opportunity. Therefore Scn's efforts to silence its

critics and prevent discussion of itself must not be given judicial

support. Its SAs must be ruled to judicially unenforceable.

     The acceptance of criticism, opposition and calls for reform

must be the natural balance to the extraordinary benefits

conferred on religions. Scn chose to call itself a religion, and, when it did

so, in this country, it also had to accept its critics' freedom to

criticize it without State intervention.

     Scn's SA impermissibly creates a religious discrimination by

prohibiting GA from assisting anyone adverse to its, a religion's,

interests. If such a contractual, and now judicially enforced,

prohibition of help is legal along religious lines, it could be

equally as legal along racial lines, or political, or sexual. But

no court would consider enforcing a contract which required non-

assistance to Chinese people, Conservatives, or women. No court

should also consider enforcing Scn's contract.

     It is abundantly clear in the reading of the complete record

(and GA prays that this Court will take the time to do so) that GA

-49-

 

has believed throughout this litigation in the existence of God.

(See, e.g., GA 6/21/91 letter, CT 7482-98) It clear that he has

come to believe that his being involved in this case, and indeed

all of his persecution by Scn, is for God's Purpose. (See, e.g., SS

146-156, CT 8525-39; 5894-923) It is also clear that he sees fair

game as a terrible evil, and sees Scn's SAs and their enforcement

as part of that evil.

     The Holy Bible is certainly clear that God is intimately

involved with man, religion and justice. He sends His prophets to

decry injustice. The Court cannot say that GA is not guided by God.

If GA had done something to disturb the peace or threaten public

safety, the State can act against him. But here there is no

question of peace, safety or morality; there is only a person

speaking out to decry injustice, to decry what he sees as a real

threat to peace, safety and morality. There is only a person

speaking his thoughts. No US Court can say these are not God's

thoughts. GA's words are religious expression about a religion, and

they must be left completely free of State control.

     By the direction of God or not this Court has the opportunity

to do a great work and eliminate a great evil. It is great not

because GA is great, but because the freedom of every person to

freely express his conscience, freely tell the truth and freely

help any of his fellows is great.

 

IV.CONCLUSION

     Nothing calls out for the enforcement of Scn's SA but the

voice of vindictiveness. Justice calls out for nonenforcement. GA

performed fairly; he dismissed his suit and gave Scientology the

criticism-free opportunity it said it wanted in order to reform.

Scn says it paid for peace. But there is no peace if one side

continues to be attacked. Scn performed unfairly. It still has the

opportunity to reform and embrace fairness. GA asks this Court to

reject the Judgment in this case and do Justice to bring

Scientology to take this opportunity.

Respectfully submitted,
[Dated] August 25, 1997

[signed]
Gerald Armstrong

-50-

 

PROOF OF SERVICE

    I am employed in the Province of British Columbia, Canada.

I am over the age of eighteen years and am not a party to the

above entitled action. I served the following document:

APPELLANT's OPENING BRIEF

on the following person(s) on the date set forth below, by

delivering a true copy thereof enclosed in a sealed envelope to

the addresses below:

Supreme Court of the State of California
303 2nd Street, #8023
San Francisco, CA 94107 (5 copies)

Clerk Marin Superior Court
Hall of Justice
Marin Civic Center
San Raphael, CA 94903

Andrew Wilson, Esquire
Wilson Campilong LLP
115 Sansome Street, Suite 400
San Francisco, CA 94104

[x] (By Mail)

I caused such envelope with postage thereon

fully prepaid to be placed in the Canadian

mail at Chilliwack, B.C., Canada.

[ ] (Personal) I caused said papers to be personally served

on the office of counsel.

[x] (State) I declare under penalty of perjury under the

laws of Canada and the State of California

that the above is true and correct.

 

DATED:

 

 

August 25, 1997

[Initialed] T.A.

   

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