|Kendrick L. Moxon, Esquire
Moxon & Kobrin
3055 Wilshire Blvd., Suite 900
Los Angeles, CA 90010
|September 16, 2005
Also by E-mail: firstname.lastname@example.org
Re: Scientology v. Armstrong
Dear Mr. Moxon:
I am obviously in receipt
of your request
for dismissal and the Court
of Appeal's dismissal of your
appeal of the Marin Superior Court’s April
2004 judgment, which stated that it would be unconscionable to punish
me beyond what the benefit was that was conferred to me. I’ve webbed
your request and the Court’s dismissal and I will web this letter
on my site’s Armstrong
VII Appeal section.
What brought me to write
you are the reasons you gave to the Court of Appeal for your request to
dismiss your appeal, specifically my “flight from the United States
and the unlikelihood that the $500,000 awarded can be collected.”
Because of the legal situation in which you and your client have put me,
it is prudent to challenge you on this statement. I will also use this opportunity
to address the effect your dismissal has on your writ petition and on other
aspects of my legal relationship with your client, and to see if we can
reach an agreement on certain procedural matters.
I left California, as
you know, and traveled to British Columbia in January 1997. I resided briefly
in Nevada in late 1997 and part of 1998, but was forced to return to B.C.
at that time. As you know, you filed Scientology v. Armstrong, Marin
Superior Court Case No. CV 021632 (Armstrong
VII), the lawsuit
underlying the appeal, in April 2002, almost four years after I finally
left the U.S. As you know, you filed the appeal
and the writ
petition in July 2004, almost six years after I left the U.S.
As you know, I was physically
present in Marin County, California in April 2004 at the trial that resulted
in the “Order
Granting Plaintiff’s Motion for Judgment,” which you appealed,
and the “Order
Re Sentences for Contempt,” which you seek to vacate by writ.
As you know, while I was physically present, Judge Duryee discharged all
jail sentences and fines that your client had obtained against me. Obviously
the warrants you had issued for my arrest, if they had not expired, were
withdrawn when Judge Duryee dispensed with the sentences. As you know, she
stated in her order, which you urge the Court of Appeal to vacate, that
I had “personally appeared.” In fact, as you know, I was so
physically present at trial that she stated in her order that the jail time
to which I was sentenced was deemed served by my appearance in Court. You
yourself state as much in your reply brief, although you refer to my physical
presence as “mere
appearance.” There is no legal impediment to my coming to California
or anywhere else in the U.S., and you cannot but know this.
As you know, on March
1, 2005 I served you with my request for oral argument by “personal
appearance” in the appeal and the writ. You further knew of
my intention to be physically present in San Francisco for oral argument
because I sent you an e-mail letter on September 1 expressing exactly this
intention in connection with my need to make travel arrangements and to
avoid any scheduling chicanery or unnecessary expense. Your request
for dismissal of the appeal is dated as signed and served September
You knew when you signed
and filed your request for dismissal that there was no “flight from
the U.S.,” and certainly no flight from the U.S. that was suddenly
causing you and your client on September 2, after oral argument was scheduled,
to give up on your appeal of Judge Duryee’s judgment. You are lying
to avoid legal responsibility, and you are black PRing me to the Court of
Appeal on whom I immediately depend for my freedom and human dignity, and
I would think you would now advise the Court of the truth.
As you know, your client
and its lawyers and other agents have for years been black PRing me around
the globe with this same baseless set of lies that I fled the U.S., that
I’m a criminal, that I’m a “fugitive from justice.”
As you know, even your writ petition that you are still prosecuting contains
the same sinister lie.
On June 5, 1997, Judge Thomas issued an order of contempt, finding that
Armstrong “willfully disobeyed the Order.” [ ] Judge Thomas
ordered that Armstrong pay a fine of $1,000 and be confined in the County
Jail for two days.[ ] Armstrong fled the jurisdiction, and on August 6,
1997, Judge Thomas issued a bench warrant for his arrest.
You, Kendrick Moxon,
are trying to have me jailed, and have who knows what befall me in jail,
with willful lies. The abuse of process you and your client are engaged
in here is gargantuan. If you really believed, and if your client and its
former attorney Andy Wilson had believed that what you were doing was lawful,
and had an end to the judicial process allowed by law, none of you would
have resorted to telling the lies you’ve told.
Keep in mind your client’s
efforts in Russia in 2001 to get me harassed, detained or worse by the Federalnaya
Sluzhba Bezopasnosti, and even by American agents in Russia, with your client’s
black PR to a host of Russian officials and agencies and the U.S. Embassy
in Moscow that I was a “fugitive from justice.” Keep in mind
client’s effort to have me prosecuted in Russia in 2003 on the
basis of your ill-gotten contempt orders in California.
Don’t forget the
black PR on me containing the same lies that your client published and distributed
all over Germany in 2002 and 2003. E.g.,
Finally the Superior Court of the Marin district in California issued
a warrant for Armstrong's arrest on May 15, 1998, with possible fine and
incarceration for criminal disregard of the court. This resulted in Armstrong's
moving out of the country to evade punishment and escape the law.
Don’t forget the
Autobahn Schrecklichkeit involving your client’s agent Mirko Otto,
also engineered and “justified” on the basis of my being a “fugitive
from justice.” Don’t forget the shockingly false testimony of
your fellow Scientology lawyer Wilhelm Blümel in 2004, telling the
same pack of lies black PRing me as a criminal and a fugitive from justice
to the Court in Brandenburg, Germany trying the Otto case.
Of course nobody forgets
the Philip Helmer Operation, which your client has been running for more
than a year right here in my hometown in British Columbia, to spy on, entrap
and harm my wife Caroline and me. As you know, I’ve webbed a declaration
I executed September 5 concerning this clear Scientology op. I believe
you are involved in the Helmer Op, and its timing relates to your litigation
actions against me, including your dismissal of the appeal and your continuing
prosecution of your writ petition.
Your client’s lies,
and your lies, that I fled the U.S. and am a fugitive from justice are sinister
because they signal the evil Scientology’s leaders are willing to
do to make themselves right in their lies. You people in the Miscavige regime
mock up Scientology as “just,” when it is the very height of
unjustness, just to make it a point
of “honor” to hurt people like Caroline and me. I believe
that to be right in their global black PR campaign on me, which you personally
forward for them in execution of the “Suppressive
Person” doctrine, Scientology’s leaders would even murder
me. After all, a dead person wouldn’t be returning to the U.S., and
Scientology’s black PR agents like yourself can say whatever they
want about your client’s victims, if they are dead, with legal impunity.
By murdering me, your client would make itself right and make me forever
dead wrong. I have no reason to doubt that you would personally facilitate
and use whatever harm your client wishes or is able to cause me, just as
you’ve facilitated and used the harm your client has caused to date.
I am aware of course
that Scientology head and your boss David
Miscavige is responsible for these ops against me, the black PR, the
threats, the litigation machinations, all the abuse of process, all the
use of the law to harass me, and the universal Scientology intention to
cause me, Caroline, my family and friends harm. I am also aware that the
Game against me and Caroline, and the threats to our reputations, livelihoods
and lives will only end when Miscavige personally ends these evils, or someone
else puts a stop to him and then ends these evils. I am therefore sending
him a copy of this letter in the hope that he comes to his senses, or at
least realizes that he cannot win without murdering me, and so ends this
disastrous Scientology war.
As you know, what triggered
my decision to leave California in 1997 was the discovery of a section of
your client’s 1023
submission to the IRS that included a pile of black PR on me. All of
the reasons why that discovery so affected me aren’t important at
this time. It is sufficient for the purposes of this letter to know when
I left California, and that my leaving was months before your client obtained
its first contempt order and jail sentence against me. My leaving could
not possibly have been because of that contempt order and jail sentence,
or any other contempt order or sentence, or any arrest warrant, which your
client procured at any time.
Certainly the unconscionable
contract your client was enforcing against me; your client’s driving
me into bankruptcy with Judge
Thomas’ judicial enforcement of that unconscionable contract;
his unlawful abetment of your client’s unlawful efforts to butcher
my basic human rights, including my right to defend myself against your
client’s predations; and your client’s continuing to prey on
me; were factors in creating a terrifying situation. The black PR to the
IRS was a last straw in that already intolerable state.
It didn’t help
my peace of mind to know that your client had failed to disclose this terrible
black PR to me in the discovery phase of the case in which you were using
Judge Thomas to gag and ruin me. And Mr.
Wilson’s threat letter of January 24, 1997, a day after Grady
Ward served a subpoena
duces tecum on me, didn’t make me any less anxious to get away
from your client’s predations, although I did take a day as I was
leaving to report the threat to U.S. District Court Judge Whyte by my declaration
of January 26, 1997, which, as you know, is central
to your writ petition in the Court of Appeal.
What your client perpetrated
against me over many years to get its billion-dollar tax exemption truly
appalls me to this day. I believe that unless Scientologists tell the truth
about this crime, the organization’s leaders will very possibly have
me murdered. When I read your client’s black PR on me and grasped
just how criminal Scientology’s leaders and their lawyers are, and
just how great the threat of harm or assassination is from them, I left
California and returned to Canada, where I had grown up and where Scientology
is a criminally convicted organization, and not able to suppress and
destroy its victims as Scientology has been able to do in the U.S. I did
not flee in face of your superior ethics.
That your client really
intended me harm and that I was in real danger when I left California in
1997 has been demonstrated by all the dishonest, aggressive and criminal
acts your client has subsequently perpetrated against me in Germany, in
Russia, in Canada and in the U.S., including your own participation in this
dishonesty, aggression and criminality. My discovery just last year of several
more pages of shocking black PR on me in your client’s IRS 1023 response
has further confirmed my evaluation of your client’s criminality and
the threat Miscavige and the people around him are to the future opportunities,
happiness and life of me and those close to me.
It is true that I didn’t
return to California during Judge Thomas’ time on the bench in Marin
County. He had already shown he would enforce your unconscionable
contract, and would jail me for discussing the unconscionable contract
and your client’s efforts to enforce it. He had shown that he would
jail me and fine me without proper notice for reporting your client’s
crimes, even if Federal Law required such reporting. Judge Thomas had shown
a total disregard for my constitutionally guaranteed rights, and a facile
willingness to gut those rights, most glaringly my right to freedom of religion.
I had no delusion about what he would do to enforce your client’s
unconscionable contract and to completely silence me in order to cover his
unlawful enforcement of your unconscionable contract, which he could not
but have known was unconscionable
While your black PR about
this “flight from the U.S.” and being a “fugitive from
justice” is utterly baseless, there does exist, however, a continuing
real basis for a claim of damages against your client for my loss of my
legal U.S. resident status. You and your client for years have linked my
leaving the U.S. and staying away to your efforts to enforce your unconscionable
contract. With your dismissal of your appeal of Judge Duryee’s judgment
of unconscionability, I now expect your client to remedy its wrong in driving
me from my home in the U.S. and causing the loss of my residency. I expect
your client to assist me in every way possible with the U.S. Citizenship
and Immigration Services to re-establish my legal U.S. resident status.
I also expect your client to compensate me for the years of lost U.S. residency,
for driving me around the world with threats of enforcement of your client’s
unconscionable contract, and for the black PR campaign concerning my residency
and my forced travels that your client has perpetrated against me internationally.
I happen to agree with
what you said in your request for dismissal of the appeal about the unlikelihood
of your client ever collecting $500,000 from me, but this unlikelihood is
not because of your fanciful flight from the U.S. It is because of several
other factors, including the obvious offset created by your efforts to enforce
your unconscionable contract and collect a galactic sum far in excess of
$500,000. In fact, I believe that at this time I have a monetary claim against
your client for at least the difference between the unconscionable amount
of $10,050,000 you sought and the $500,000 you were awarded, or $9,050,000.
I also am challenging
you on the other “reason” you gave for your dismissal of the
appeal while maintaining your writ petition.
This dismissal does not apply to Appeal Case No. A107095 and is not applicable
to the consolidated case No. A107095, the issues of which are wholly separate
and distinct from the issues in Case No. A107100 and which remains active
and pending, and which is fully briefed.
Not only is this another
lie, but you are estopped from telling this lie to the Court of Appeal because
it is a completely inconsistent with the position your client took in its
filed in the Court of Appeal July 16, 2004 to consolidate the appeal and
This motion is made on the ground that the evidence and the legal questions
presented by both matters are so related as to make it advisable to consolidate
CONSOLIDATION IS NECESSARY TO CONSIDER TOGETHER TWO MATTERS WHICH CONCERN
ISSUES ARISING FROM THE SAME AGREEMENT AND WHICH HAVE OVERLAPPING APPELLATE
The standard test for consolidation on appeal is whether the cases to
be consolidated share at least one common issue. [Cite]. This is a factual
question which requires consideration of "whether the questions presented
are so related as to make it advisable to consolidate..." [Cite] There
is no question here that the standard has been met for the following reasons:
1. Both [Scientology v. Armstrong, Marin Superior Court Case No.
IV")] and [Scientology v. Armstrong, Marin SC Case No. CV
VII")] arise out of Armstrong's breaches of the Agreement. The
breaches upon which [Armstrong VII] is based are the same breaches upon
which the third contempt order in [Armstrong IV] was based.
2. [Armstrong IV] and [Armstrong VII] were consolidated by Judge Duryee
on April 9, 2004. Both the appeal in [Armstrong VII] and the writ petition
in [Armstrong IV] arise from orders made by Judge Duryee as a result of
the “combined” trial of [Armstrong VII] and the contempt sentencing
in [Armstrong VII] [sic].
3. One of the principal issues in [Armstrong VII] is whether Judge Duryee's
refusal to award liquidated damages in excess of $500,000 contravenes Judge
Thomas’ ruling on the validity of the liquidated damages provision,
and the final judgment, in [Armstrong IV]. One of the principal issues in
[Armstrong IV] is whether Judge Duryee improperly conflated the purposes
to be served by contempt citations with the purposes to be served by liquidated
damage awards by characterizing the judgment in [Armstrong VII] as punishment
for the contempts in [Armstrong IV].
4. The Exhibits filed in support of the petition in [Armstrong IV] will
substantially overlap the Appendix to be filed in [Armstrong VII].
I have no objection to
your dismissal of the appeal, but I strongly object to your lying, and I
object to your taking inconsistent or opposite positions in this matter,
which your client consolidated, in order to obtain the unlawful results
you seek. I believe that your taking this blatantly inconsistent position
to get the Court of Appeal to dismiss your appeal compels your dismissal
of your writ petition as well.
Even Judge Duryee’s
Re Sentences for Contempt that you seek to vacate by writ inarguably
links the issues in your appeal and petition.
The sentences imposed in the two prior contempt actions, in Marin Superior
Court Case No. 152229/157680, which is consolidated herewith, are discharged
upon entry of judgment against Armstrong herein.
On the order of contempt issued July 13, 2001, Armstrong is sentenced
to five days in jail and a fine of $1,000. The fine is concurrent with the
judgment rendered in this action.
The judgment that Judge
Duryee tied to the sentences against me was obviously her Order
Granting Plaintiff’s Motion for Judgment, which was entered May
20, 2004, and which your client appealed. Your representation to the Court
of Appeal in your request for dismissal of the appeal that the issues in
your writ petition are wholly separate and distinct from the issues in the
appeal is wholly fabricated.
Your client and you dismissed
your appeal not because of any flight by me and a consequent unlikelihood
that you could collect $500,000 from me, but because you knew you were going
to lose the appeal. You knew you were going to lose the appeal because the
unconscionable contract you were trying to enforce in order to ruin me had
finally been seen as such by a fair judge.
Your client was apparently
unable to successfully wage its War
on Judges against the First District’s Division Four Justices,
so you dismissed the appeal to avoid, among other things, a precedential
appellate opinion that your unconscionable contract is indeed unconscionable.
Your client is of course continuing to wage its litigation campaign on Judge
Duryee, shamelessly characterizing your assaults as upholding the Court’s
dignity. Don’t forget that in that unconscionable contract, and in
the unconscionable events its attempted enforcement has spawned, you,
Mr. Moxon, are a personal beneficiary.
Regardless of the reasons,
specious or real, for your request to dismiss your appeal, however, the
Court of Appeal has dismissed it, and your client and you have accepted
Judge Duryee’s May 20, 2004 judgment, and must abide by it. Your client
has accepted that it would unconscionable to punish me beyond what the benefit
was that was conferred to me. Thus not only are the issues in the appeal
not wholly separate and distinct from the issues in the petition, the judgment
is now res judicata as to key issues in the petition.
By your voluntary dismissal
of the appeal, the judgment in fact now acts as a total bar to your prosecution
of your writ petition, because what you seek with that petition is to punish
me beyond what the benefit was that was conferred to me. The law of the
case, which, with your appeal dismissal you have accepted, is, certainly
upon this dismissal, that all such punishment is unconscionable. It is unconscionable
that you continue to prosecute your petition past the date of entry of the
judgment, which was, as you know, May 20, 2004.
It is moreover contemptuous
of your client and you to pursue this unconscionable punishment, because
in so doing you are violating the Marin Superior Court’s judgment,
the appeal from which you just dismissed. You really have no lawful choice
but to immediately dismiss your petition. To not do so is more punishment
of me in violation of the judgment, and thus unconscionable, contemptuous
I believe, and am going
to pursue every legal remedy for this wrong, that punishing me with even
the first fifty thousand dollars, or the first threat, or the first lawsuit,
or the first OSC, or the first contempt order, or the first fine, or the
first jail sentence, or the first black PR, was just as unconscionable as
the punishment your client and you are inflicting on me after entry of Judge
Duryee’s judgment. I do not believe your client ever had a lawful
right to punish me with enforcement of its unconscionable contract, or to
punish me in any other way at any time, and that all such punishment was
unconscionable and unlawful. We do not have to agree, however, to this unconscionability
or unlawfulness at this time. It is sufficient here that your client and
you have agreed to Judge Duryee’s judgment, which states that the
punishment you are now inflicting on me is unconscionable.
The Marin Superior Court
is not seeking to punish me. Only your client and you are seeking to punish
me, and you are prohibited by the Court’s judgment, which you have
now accepted, from doing precisely what you are doing. It is obviously your
client and you who want to inflict this punishment that is barred by the
judgment, because Judge Duryee specifically dispensed with the very punishment
you seek to have reinstated. In fact, your client has filed its petition
against the Marin Court making the Court the respondent and putting it in
the position of having to defend against what Scientology wants: to unconscionably
punish me in violation of the Court’s own judgment.
The reason your client
and you give for pursuing a writ of mandate or certiorari to have the Court
of Appeal direct the Marin Superior Court to punish me is as perverse as
what you are doing is unconscionable. Your client claims in its petition
that the purpose of the punishment it seeks to inflict upon me is to “vindicate
the dignity and authority of the court,” which you also claim
I was, back in 1997, 1998 and 2000, “actively repudiating.”
You and your client are pursuing this mission of “vindicating the
dignity and authority of the court,” by willfully violating the court’s
judgment. It is your client and you who are actively repudiating the court’s
dignity and authority, which your mission gimmick says you are to claim
to be upholding. Scientology upholding of the dignity and authority of wog
courts is like the devil upholding the dignity and authority of God.
Don’t forget that
I have never accepted Judge Thomas’ judgment, your judicial enforcement
of which originally gave you the jail sentences and fines you now seek to
have reinstated. But your client and you have accepted Judge Duryee’s
judgment. Judge Duryee’s judgment is a huge first step toward the
complete revocation of the Thomas
judgment. Don’t forget too that your client and its lawyers obtained
the involuntary dismissal of my original appeal of the Thomas judgment by
unlawful means, which I have detailed in my respondent’s brief and
my opposition to your petition for writ. Thus the Thomas judgment was always
on the shakiest of grounds, and Judge Duryee has given it the shake it has
Your client states in
In contrast to compensatory damages, the “enforcement of an order
of contempt in this state is not for the vindication of a private right
but is for the maintenance of the dignity and authority of the court, and
to preserve the peace and dignity of the people of the State of California.”
Your client is obviously
referring to the liquidated damages as compensatory damages, yet the same
principle of California law applies to the punishment your client and you
seek with your writ petition. What your client seeks are actually compensatory
damages, and are unrelated to the dignity and authority of the court, except
as what you are doing undermines that dignity and authority. The compensatory
damages that your client seeks are my punishment beyond the entry of Judge
Duryee’s judgment, which is strictly forbidden by that judgment, which
your client has, with its dismissal of its appeal, accepted.
Your client seeks to
be compensated for my exercise of my basic human rights and my defending
myself against your client’s predations by punishing me with jail
time and fines. The punishment you seek is for your client’s benefit,
and your benefit, as reflected in your “basis of relief” and
“prayer for relief” in your petition. Mr. Wilson stated very
clearly why your client wanted me jailed and fined during the trial before
Mr. Wilson: And the only way -- the only way that the church can get
any satisfaction, or has any chance of having Mr. Armstrong stop this is
for the court to tell him we're serious. We ordered you to stop, we meant
it. Stop. Go to jail.
The compensation your
client and you still seek in prosecuting your writ petition is the very
same, the satisfaction of punishing me, of seeing me jailed and fined so
you can further punish me with more black PR and Fair Game around the world.
David Miscavige can’t get no satisfaction until Gerry Armstrong is
punished. You and your client are using the court’s power to sanction
contempts for the purpose of vindicating Miscavige’s private right
to punish me. Not only therefore is what you are seeking with your writ
petition a violation of Judge Duryee’s judgment and unconscionable,
even absent that judgment what you are seeking is not permitted by law.
Your client and you really have no lawful option but to immediately dismiss
As you know, your client
stated as settled law in its petition concerning the jail and fine punishment
it seeks to inflict on me, that “where there are “mitigating
factors,” remission may be appropriate.” Your client also stated
that there exist “no grounds for remission of [my] contempt sentences.”
In my opposition to your petition, I identified several mitigating factors
or grounds for remission. The record is full of mitigating factors. And
now there is the most mitigating of all mitigating factors, that by Judge
Duryee’s judgment, which with your dismissal of the appeal you have
now accepted, the punishment you seek is unconscionable.
The Court of Appeal obviously
is not the trier of fact as to whether there exist mitigating factors that
make the Marin Court’s remission of that punishment appropriate. I
believe, as I’ve said, there exists an overwhelming set of mitigating
factors. But the Marin Court is the trier of fact, and, if there really
does exist a question of fact as to the existence of mitigating factors,
the correct judicial action is to send the contempt matters back to that
Court. To determine whether mitigating factors or grounds for remission
exist and whether any such mitigating factors are sufficient to have made
the Court’s remission of my punishment appropriate, the Court would
have to retry the three contempt charges.
The Marin Court has obviously
already decided at my April 2004 trial that mitigating factors exist, because
the Court remitted all three jail sentences and all three fines. On retrying
the contempt charges, if the Marin Court finds there are no or insufficient
mitigating factors after all, the Court would, presumably, unremit the punishment.
Contempt proceedings, however, are of course quasi-criminal in nature, so
retrying these contempt charges, which is the only way for the trier of
fact to determine if mitigating factors existed, unlawfully subjects me
to double jeopardy.
Finally, because of
your voluntary dismissal of your appeal of Judge Duryee’s judgment
I would like to work out with you a format and timetable for a hearing or
hearings in the Marin Court to resolve certain issues that have been ripened
by that dismissal. The legal authority and guidelines for the immediate
hearing I seek are provided by C.C.C.
§1670.5, which, as you know, I quote in my respondent’s
brief and argue is the governing law in the case.
(a) If the court as a matter of law finds the contract or any clause
of the contract to have been unconscionable at the time it was made the
court may refuse to enforce the contract, or it may enforce the remainder
of the contract without the unconscionable clause, or it may so limit the
application of any unconscionable clause as to avoid any unconscionable
(b) When it is claimed or appears to the court that the contract or
any clause thereof may be unconscionable the parties shall be afforded a
reasonable opportunity to present evidence as to its commercial setting,
purpose, and effect to aid the court in making the determination.
As I stated in my brief,
your client’s remedy by statute was not to try to get the Court of
Appeal to overturn the judgment of unconscionability, a course you have
now abandoned with your appeal dismissal. Your client’s remedy was
to avail itself of the evidentiary hearing that your client is afforded
by C.C.C. §1670.5, obviously in the Marin Superior Court, as to your
contract’s commercial setting, purpose, and effect. If the Court had
adjudged your contract unconscionable after such a full hearing, that would
be the time for you to appeal. Your client actually appealed the unconscionability
judgment prematurely in order to avoid the statutory evidentiary hearing.
You and your client then chose to dismiss the appeal, hoping again to perhaps
be able to avoid rather than avail yourselves of such a hearing. The Court
of Appeal should have reached that result or remedy, as California’s
Unconscionable Contract Statute is very clear, if you had not dismissed
the appeal and I had prevailed.
Just as your client,
upon the appearance to the court that your contract is unconscionable, is
to be afforded an evidentiary hearing as to the contract’s commercial
setting, purpose, and effect, so am I, the other party, to be afforded such
a hearing. As you know, I requested the Court of Appeal in my respondent’s
brief to order an evidentiary hearing in accordance with C.C.C. §1670.5,
and with your dismissal of your appeal the opportunity for the Appellate
Court to order the Marin Court to afford me such a hearing is also gone.
My remedy now is to go directly to the Marin Court and request the Court
to set an evidentiary hearing, and I would like your client to either join
in my request for a hearing, since you have to be there anyway, or to at
least not oppose my request.
As you know, I have
had no reasonable opportunity to request an evidentiary hearing of the Marin
Court because of your appeal of the unconscionability judgment and the long
unexplained delay in my lawyer Ford Greene’s receipt of the judgment
from the Court or Mr. Wilson, which immediately preceded the appeal. Following
the April 9, 2004 trial, Mr. Wilson and Mr. Greene engaged in a number of
weeks of back-and-forth over the form of the orders to incorporate the rulings
Judge Duryee made at trial. Because Mr. Wilson and Mr. Greene were unable
to agree on the language of the orders, Judge Duryee herself wrote the two
orders, which were entered on May 20.
Mr. Wilson received
the two orders, but Mr. Greene did not receive either of them, however,
and continued to communicate with Mr. Wilson to try to reach an agreement
on the language for the two proposed orders. In fact, as late as July 8,
2004, Mr. Wilson forwarded to Mr. Greene another proposed judgment for Mr.
Greene’s approval as to form. Mr. Greene only learned from Mr. Wilson
about Judge Duryee’s May 20 orders on July 12, on which date Mr. Greene
went to the Marin Courthouse and obtained copies of those orders. On July
15 your client, who along with its lawyers had possessed the orders for
almost two months, filed its notice of appeal and its petition for writ
of mandate or certiorari.
Thus I have never had
an opportunity to request the Marin Court to set the evidentiary hearing
that I am to be afforded pursuant to C.C.C. §1670.5, and with your
dismissal of your appeal I will now do so. I am sure your client wished
that my right to such an evidentiary hearing had been dismissed or lost
along with your appeal, but the dismissal actually makes the need for a
full hearing more acute. With your voluntary dismissal, you have accepted
Judge Duryee’s judgment, and you have accepted that where it conflicts
with Judge Thomas’ judgment, Judge Duryee’s judgment rules.
You have acknowledged that unconscionability trumps res judicata and collateral
estoppel, which of course unconscionability must.
You have also accepted
with your voluntary dismissal of your appeal that liquidated damages in
your client’s contract are punishment, which of course they are. As
I already stated in my respondent’s brief in the appeal, your client
argued in its opening brief, perhaps crafted by Mr. Wilson, that because
the law does not permit liquidated damages to be punishment, the punishment
that your client’s liquidated damages clause subjects me to cannot
be punishment; otherwise the liquidated damages would be punishment, which
liquidated damages cannot by law be.
The trial court erred in confusing cumulative judgments exceeding $800,000
with punishment because, as a matter of law, liquidated damages are not
and cannot be punishment. The trial court also had no authority to limit
CSI's recovery under the liquidated damages provision by characterizing
it as "unconscionable." A reasonable, enforceable liquidated damages
provision is, by definition, not unconscionable.
There is now a final
judgment, which you have accepted, that says that the liquidated damages
provision is unconscionable. Therefore the provision is, as your client
says, not reasonable and not enforceable. The judgment states moreover that
the monetary sanctions your client has been attempting to obtain against
me, which your client and its lawyers have been calling liquidated damages,
is actually punishment. Since liquidated damages may not by law, as your
client also says, be punishment, the “liquidated damages provision”
is unlawful and cannot lawfully be enforced.
Although Judge Duryee
did not state in her judgment that punishing me up to $500,000 was unconscionable,
she also did not state that it was not unconscionable. The judgment simply
states that punishing me beyond $500,000 was unconscionable. I am claiming
that all of the punishment your client has been calling liquidated damages,
from the first dollar through the last impossibillion dollars, is unconscionable.
I shall now do whatever I can to be afforded, as provided in C.C.C. §1670.5,
a reasonable opportunity to present evidence as to the contract’s
commercial setting, purpose, and effect to aid the Marin Court in making
the determination that the contract is, as your client has attempted to
enforce it, and is still obviously actively attempting to enforce it, in
all ways unconscionable.
There has never been
a hearing on the commercial setting, purpose, and effect of the contract,
and it is sorely needed in this litigation war your client, and you, are
waging on me. Your client and its lawyers have gone to criminal lengths
to prevent me from getting a fair hearing or trial. Yet, absent a fair,
conscionable settlement, a fair hearing or trial is about the best thing
I could work for to give either me or your multitudinous client peace. It
will give me peace, because I’ve been fighting for a fair hearing
for something over sixteen years, just to get that fair hearing. By its
refusal to be fair and give me a fair hearing, of course, your client is
saying, as it has always said, that it doesn’t want peace. It wants
to war on me and get its satisfaction by punishing me.
I am not kidding myself
that I’m a lawyer, and I know that I have been blessed far beyond
my severe limitations and resourcelessness in lasting against your client
and its lawyer army in the legal arena this long. I know that to prosecute
my claims against your client I will need a lot of help, and even to proceed
with the C.C.C. §1670.5 evidentiary hearing I really will need a lawyer.
I’m going to do what I can to involve lawyers in my situation and
claims, and I hope that your client’s dismissal of its appeal and
the effects of the dismissal, some of which effects I’ve touched on
in this letter, will make my legal situation and claims much more fetching.
In the meantime, you have to deal with me, so I want to tell you that I’m
available should your client or you wish to discuss dismissal of your writ
petition, or the setting of a C.C.C. §1670.5 hearing in the Marin Court,
or even about settling this war once and for all.
I have not addressed
in this letter a number of issues that exist between your client and me,
such as religious liberty, the constitutional guarantees for which also
completely bar your client from doing what it's doing to punish me, and
the obvious malicious prosecution cause of action that has matured with
your voluntary dismissal of the appeal. Clearly your client and its lawyers
and I have many things to discuss in order to bring an uncataclysmic end
to your long war on me. For now, I would like your client to take the simple
steps I have suggested in this letter, which, with your dismissal of your
appeal, I believe your client and you must take.
Correct the record and
tell the Court of Appeal that there was no flight from the U.S. and I am
not a fugitive from justice.
Dismiss your writ petition,
and cease all efforts of any kind to punish me.
Agree to a C.C.C. §1670.5
evidentiary hearing in the Marin Superior Court on the commercial setting,
purpose, and effect of your contract.
And, although I haven’t
mentioned it in this letter, I will also take this opportunity to again
make a demand upon Scientology and David Miscavige to return my manuscript,
artwork and other documents that were stolen by Miscavige’s agents
from the trunk of my car. If he has destroyed these things, I expect to
be monetarily compensated. I believe that a fair value would far exceed
five hundred thousand dollars.
I will, Inshalla, and
unless you dismiss your writ petition, be in the Court of Appeal in San
Francisco on September 21 for oral argument. Perhaps you and your client
would be willing to meet with me and discuss the issues between us at that
#1-45950 Alexander Avenue
Chilliwack, B.C. V2P 1L5
|| Andrew H. Wilson, Esquire