MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF THE CASE
In December of 1986, Petitioner Church of Scientology, International
("CSI") entered into a settlement agreement ("Agreement")
with Real Party
in Interest and Respondent Gerald Armstrong ("Armstrong") designed
end years of bitter litigation. In 1992, CSI was compelled to institute
litigation, Church of Scientology International v Gerald Armstrong, Marin
County Case No. 157680 (Armstrong I), to enforce the Agreement. CSI
obtained a judgment awarding
it a permanent injunction
damages of $300,000.
After declaring bankruptcy, Armstrong violated
the injunction in
wholesale fashion and was held in contempt on three separate occasions by
two different judges for a total of over 200 separate acts of contempt. The
Hon. Gary W. Thomas imposed sanctions for the first two contempt
sentences aggregating $3600 and 28 days in jail. Meanwhile, Armstrong
had fled to Canada, prompting the issuance of bench warrants for his arrest;
he was never apprehended. On the third contempt conviction, the Hon.
Vernon Smith postponed imposition of sentence until Armstrong could be
brought before the Court.
CSI then brought a second action, Church of Scientology International
v. Gerald Armstrong, Marin County Case No. CV021632
to recover liquidated damages for the breaches of the Agreement which
formed the basis of the third contempt conviction, as well as 70 additional
breaches. Armstrong II was assigned to the Hon. Lynn Duryee and set for
trial on April 9, 2004. On that day, Mr. Armstrong appeared with his
counsel for trial. Also on that day, Armstrong I was assigned to Judge
Duryee, who consolidated the cases and combined the trial of Armstrong II
with the hearing on the sentence to be imposed for the third contempt in
After opening statements, Judge Duryee granted CSI's motion for
judgment, on the ground that the facts which Armstrong's counsel had
offered to prove did not constitute a defense to CSI's breach of contract
action. However, even though the Agreement clearly provided for
liquidated damages in the amount of $50,000 per breach, and even though
Judge Thomas had ruled that this provision was valid and enforceable,
Judge Duryee held that CSI's damages should be limited to the amount of
the consideration originally paid to him by CSI, less the $300,000 awarded
to CSI by the Armstrong I judgment.
In Armstrong I, Judge Duryee discharged the contempt sentences
imposed by Judge Thomas, imposed a five day jail sentence which she
declared was served by Armstrong's appearance, and levied a $1000 fine
which was to be "concurrent" with the judgment in Armstrong II.
CSI has filed a Notice of Appeal
and Election to Proceed Under Rule
5.1 of the California Rules of Court in Armstrong II and a Petition for Writ
of Certiorari or, in the Alternative, a Writ of Mandate in Armstrong I.
CONSOLIDATION IS NECESSARY TO CONSIDER TOGETHER
TWO MATTERS WHICH CONCERN ISSUES ARISING FROM
THE SAME AGREEMENT AND WHICH HAVE OVERLAPPING
The standard test for consolidation on appeal is whether the cases to
be consolidated share at least one common issue. Pacific Legal Foundation
v. California Coastal Commission, 33 Cal 3d 158, 165 (1982). This is
factual question which requires consideration of "whether the questions
presented are so related as to make it advisable to consolidate..." Sampson
v. Sapoznik, 117 Cal. App. 2d 607,609 (1953). There is no question
that the standard has been met for the following reasons:
1. Both Armstrong I and Armstrong II arise out of Armstrong's
breaches of the Agreement. The breaches upon which Armstrong II is
based are the same breaches upon which the third contempt order in
Armstrong I was based.
2. Armstrong I and Armstrong II were consolidated by Judge
Duryee on April 9, 2004. Both the appeal in Armstrong II and the writ
petition in Armstrong I arise from orders made by Judge Duryee as a result
of the "combined" trial of Armstrong II and the contempt sentencing
3. One of the principal issues in Armstrong II 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 I. One of the principal
issues in Armstrong I 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
II as punishment for the contempts in Armstrong I.
4. The Exhibits filed in support of the petition in Armstrong I
will substantially overlap the Appendix to be filed in Armstrong II.
In addition, consolidation of these matters will not delay
consideration of the writ petition in Armstrong I. CSI will be able to file
Opening Brief in Armstrong II within 10 days of notice that the matters
have been consolidated.
For the reasons stated above, the writ petition in Armstrong I and the
appeal in Armstrong II should be consolidated for the purposes of briefing,
oral argument and decision.
|July 15 , 2004
WILSON CAMPILONGO LLP
By: [signed] Andrew H. Wilson
Andrew H. Wilson
Attorneys for Plaintiff and Petitioner
CHURCH OF SCIENTOLOGY
PROOF OF SERVICE
I, the undersigned, declare:
I am employed in the County of Marin, State
of California. I am
over the age of 18 and not a party to the within action; my business address
is 475 Gate 5 Road, Suite 212, Sausalito, California 94965.
On July 16, 2004, I served the foregoing
document(s) described as
MOTION TO CONSOLIDATE APPEALS
on the interested parties in this action by placing true copies thereof
enclosed in sealed envelopes addressed as stated on the attached service
list, as follows:
XX BY MAIL:
___ BY FEDERAL EXPRESS OR OVERNIGHT COURIER
___ BY HAND DELIVERY AT COURT EX PARTE HEARING.
|Ford Greene, Esq.
HUB Law Offices of Ford Greene
711 Sir Francis Drake Blvd.
San Anselmo, CA 94960-1949
|Marin County Superior Court
Hon. Lynn Duryee
3501 Civic Center Drive
San Rafael, CA 94913
Executed on July 16, 2004, at Sausalito, California
XX (State) I declare under penalty of perjury under the laws of the
of California that the above is true and correct.
___ (Federal) I declare that I am employed in the office of a member of
the bar of this Court at whose direction the service was made.
(Type or Print Name)
|[signed] Angela Parker