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CT 8681

Andrew H. Wilson, SBN 063209
WILSON, RYAN & CAMPILONGO
115 Sansome Street
Fourth Floor
San Francisco, California 94104
(415) 391- 3900
Telefax: (415) 954-0938

Laurie J. Bartilson, SBN 139220
MOXON & BARTILSON
6255 Sunset Boulevard, Suite 2000
Hollywood, CA 90028
(213) 960-1936
Telefax: (213) 953-3351

Attorneys for Plaintiff
CHURCH OF SCIENTOLOGY
INTERNATIONAL

 

 

 

[stamp]
FILED
OCT 17 1995

HOWARD HANSON
MARIN COUNTY CLERK
by J. Steele, Deputy
[signed] JSteele

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF MARIN

 

 

CHURCH of SCIENTOLOGY
INTERNATIONAL, a California not-
for-profit religious corporation,

Plaintiff,

vs.

GERALD ARMSTRONG; DOES 1 through
25, inclusive,

Defendants.

 


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CASE NO. BC 157680

[Handwritten] GWT 10/17/95
[PROPOSED]

ORDER OF SUMMARY JUDGMENT
AS TO THE THIRTEENTH,
SIXTEENTH, SEVENTEENTH, AND
NINETEENTH CAUSES OF ACTION

DATE: October 6, 1995
TIME: 9:00 a.m.
DEPT: 1

TRIAL DATE: Vacated

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This matter came on for hearing on October 6, 1995, on

motion of plaintiff Church of Scientology International ("the

Church") for Summary Adjudication of the Thirteenth, Sixteenth,

Seventeenth, and Nineteenth Causes of Action of the Second

Amended Complaint. Plaintiff Church of Scientology International

 

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CT 8682

appeared by its attorneys, Andrew H. Wilson of Wilson, Ryan &

Campilongo and Laurie J. Bartilson of Bowles & Moxon, defendant

Armstrong appeared by his attorney, Ford Greene. Having read and

considered the moving and opposing papers, and the evidence and

arguments presented therein and at the hearing, and good cause

appearing:

IT IS ORDERED:

1. The Motion of Plaintiff for Summary Adjudication of

Issues as to the Thirteenth, Sixteenth, Seventeenth, and

Nineteenth Causes of Action of the Second Amended Complaint is

GRANTED in favor of Plaintiff, Church of Scientology

International, and against Defendant, Gerald Armstrong, in the

amount of $200,000.

Plaintiff has met its burden of showing that defendant

breached the settlement agreement and that it is entitled to

liquidated damages of $50,000 for each breach. Defendant has

failed to raise a triable issue as to any of the causes of

action, as follows:

INVALIDITY OF LIQUIDATED DAMAGES PROVISION: Defendant's

evidence regarding his attorneys' 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

 

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CT 8683

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 settlement.

DURESS: Flynn's statements to defendant are hearsay. (See,

e.g., D's Facts 1C and 1D.) Further, defendant has not shown

that plaintiff was aware of Flynn's purported duress of

defendant. (See Leeper v. Beltrami (1959) 53 Cal.2d 195, 206.)

Contrary to defendant's statement about duress, "careful weighing

of options" is completely inconsistent with an absence "of the

free exercise of his will power" or his having "no reasonable

alternative to succumbing:" (See Philippine Expert & Foreign

Loan Guarantee Corp. v. Chuidian (1990) 218 Ca1.App.3D 1058,

1078; In Re Marriage of Baltins (1989) 27.2 Cal.App.3D 66, 84.)

FRAUD: Flynn's statements to defendant (see Fact 78) are

hearsay. The Court finds that the portions of the 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

 

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CT 8684

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." (Tenzer v. Superscope,

Inc. (1985) 39 Cal.3d 18, 30-31).

NO SPECIFIC PERFORMANCE, BREACH OF EXPRESS AND IMPLIED

COVENANT: Defendant relies on the purported mutuality

requirement, which he has failed to establish.

FIRST AMENDMENT: First Amendment rights may be waived by

contract. (See ITT Telecom Products Corp. v. Dooley (1989) 214

Cal.App.3D 307, 319.)

2. The plaintiff has asked that the exhibits which were

previously ordered sealed be stricken as they are trade secrets,

irrelevant to this motion. This request is GRANTED. They are

not relevant. Further, they were filed by Mr. Armstrong in pro

per when he is, in fact, represented by counsel.

Dated: October 17, 1995

 

[signed] Gary W. Thomas
GARY W. THOMAS
Judge of the Superior Court

 

 

Approved as to form:

 

_________________________
Ford Greene
Attorney for Defendants Gerald
Armstrong and the Gerald Armstrong
Corporation

 

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