COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION FOUR
REPLY IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI OR,
After Order re Sentences For Contempt by the Hon. Lynn Duryee,
TABLE OF CONTENTS
TABLE OF AUTHORITIES
Memorandum to Respondent Gerald Armstrong's Brief in Opposition to
Petition for Writ of Certiorari or, in the Alternative, a Writ of Mandamus.
Thomas on June 3, 1997 and February 11, 1998, are final conclusive
judgments, as indeed, is Judge Duryee's contempt Order of May 20, 2004.
jurisdiction to override or alter those rulings or to discharge the sentences
that had been imposed while Armstrong was a fugitive. Armstrong's
Opposition Brief ignores the numerous authorities to this effect set forth in
Duryee's discharge of the contempt sentences by virtue of Armstrong's
mere appearance in court, was unlawful. Again, Armstrong's Opposition
Brief ignores Petitioner's authority.
numerous authorities supplied by Petitioner indicating that a compensatory
damage award cannot substitute for a lawfully imposed contempt sanction.
1 References to "Petitioner's Exhibits, Tab _" refer to
Exhibits in Support
Duryee's order overriding and discharging Judge Thomas's (and her own)
sentences for contempt must be vacated, and the penalties for Armstrong's
contempt of court reinstated.
the arguments in the lengthy Opposition Brief are irrelevant. In the
event that the Court wishes to consider the assertions in Armstrong's
Brief, Petitioner responds as follows:
Church giving rise to the injunction and contempts is unlawful for various
reasons. However, the enforceablility, legality, constitutionality or "great
stupidity" (as Armstrong characterizes it) of the contract underlying
Armstrong's repeated contemptuous acts, has been repeatedly litigated and
to a finding by Judge Duryee that the matter is res judicata. (Petitioner's
concerning why the contract should not be enforced were barred by the
doctrine of res judicata, and found that the contract and injunction would be
enforced, petitioners obviously did not seek review of that aspect of the
res judicata barred relitigation of the enforceability of the contract and
legality of the injunction requiring Armstrong to comply with the terms of
the contract. The issues of legality and enforceability are therefore not
properly before this Court.
violating the Court's injunction, is that there is a conspiracy to destroy his
reputation and that he must therefore utilize self-help to respond. However,
Armstrong's remedy for any alleged tort against him is not to ignore the
Superior Court's injunctions. Rather, as Judge Duryee stated, Armstrong's
remedy for any alleged torts would be a claim for damages for defamation
or other cause of action.
adjudicated against him. In November 1997, as a fugitive from California
where warrants were outstanding for his arrest, Armstrong filed an action
against the Church of Scientology International in federal court in Nevada
sounding in defamation and intentional infliction of emotional distress. The
Complaint made essentially all of the same allegations raised in his
Opposition Brief herein. (Petitioner's Supplemental Exhibits, Tab 19,
dismissed with prejudice in 1998, and the judgment of dismissal affirmed in
2000 by the United States Court of Appeals for the Ninth Circuit.
Armstrong v. Church of Scientology International (9th Cir. 2000) 243 F.2d
2 See Petitioner's Supplemental Exhibit in Support of Petition for
rectify the alleged affronts.
relating to the Superior Court's authority to discharge the contempt and
collapse the civil judgements and criminal sanctions. Essentially the
entirety of Armstrong's Opposition Brief consists of frivolous justifications
for his continuing contempt, which are simply not at issue and should
therefore be ignored.
communicate with the media or other third parties about Scientology, were
bargained away. Armstrong was paid $800,000 consideration in 1986 to
settle then-pending claims and to stop his anti-Scientology hate campaign.
conundrum in which he finds himself: entering into a contract, accepting the
consideration, but claiming it impinges upon his rights to free speech and
purported religious beliefs. However, a person may contract away a right,
In re Steinberg (1983) 148 Cal.App.3d 14, 18-20; ITT Telecom Products
Corp. v. Dooley (1989) 214 Cal.App.3d 307, 319; Snepp v. United States
(1980) 444 U.S. 507, 509, fn. 3, as several courts have found that
Armstrong has done.
findings and sanctions.3 Now, with Judge Duryee's ruling, Armstrong can
effectively ignore the injunction because he is judgment proof, and ignore
contempt findings against him because no penalty will attach for his
contempt of the Court's rulings. Indeed, Armstrong admits in his
Opposition Brief that the Superior Court's actions have created these
precise effects, stating that Judge Duryee's judgment, "has encouraged
Armstrong to continue to express his religious beliefs about the Scientologyreligion." (Opposition Brief at 28.)
injunctions because of his purported religious belief, is not only barred by
res judicata as noted above, it is also frivolous. To summarize Armstrong's
3 Armstrong takes umbrage with the assertion that he fled the jurisdiction
4 This was demanded in the contract in exchange for the monetary
guarantee to citizens to enter into contracts and would trump any
commercial transaction if one of the parties to a contract asserted it violated
a new found religious belief. If this sort of justification for breach of
contract was supported by law, it would take little imagination to predict
what the fertile minds of some persons caught in an unfavorable contract
could claim, e.g., "I do not have to pay for the car I was sold and set on fire
because I have a new-found religious belief that cars are dangerous," or "I
don't have to perform by delivering $800,000 worth of goods for which I
was paid because I have new-found religious belief that capitalism is evil,"
by Armstrong. Armstrong may profess any purported religious belief he
Armstrong's crusade of making thousands of false, defamatory and
5 The record reflects no membership in Armstrong's religion but himself.
wants or claims he has created, but he simply cannot take the substantial
benefit of a contract, breach the contract based upon his claim of religious
belief, and keep the benefits of the contract notwithstanding the breach.
were civil and not criminal. As noted above, Armstrong did not file a
petition to challenge the court's criminal contempt. Thus, he should not be
heard to make such an argument in opposition to the Petition.
criminal contempt proceedings hinges on the nature of the relief to be
afforded. Civil contempts are coercive penalties that may be avoided by
compliance with the order and are designed to achieve the object
of the order. Punitive measures that cannot be escaped by compliance and
are intended to vindicate the authority of the court, are criminal contempts. In
re Ivey (2000) 85 Cal.App.4th 793, 803; Culver City v. Superior Court in
and for Los Angeles County (1952) 38 Cal.2d 535.
punishes past violations of court orders and is therefore criminal contempt.
nugatory by the nature of the Court's sentencing, by illegally vacating the
prior contempt sentences and by allowing Armstrong effectively to receive
no penalty for his contempts. Armstrong has formally announced that he
need not obey the orders of this State: "It is true that [I] disobeyed the
Marin Court's injunction on many occasions, and [I] continue every day to
disobey it." (Opposition Brief at 40.)
on Armstrong. But, Judge Duryee's toothless finding of contempt against
him and the Court's limitation against any future damages arising out of the
contract beyond the $800,000 Armstrong received, has emboldened him
even further. Thus, in his Opposition Brief he flagrantly proclaims that he
sees no reason not to ignore the Court's injunctions in the future, stating of
contempts, since he had fled the jurisdiction for years his mere appearance
in Court was so praiseworthy that he may now commit as many contempts
as he wishes, with no sanction. As Armstrong understood the proceedings,
as stated in his Opposition Brief at page 44:
for any other fugitive who after 8 years finally appears before judge for
sentencing. This "mitigating" factor is unprecedented in the law as a basis
to vacate all prior sentences imposed, and consider the appearance to be
"time served" when not a minute of time was "served."
words that the Court's orders over the last several years have created no
restraint upon the man. Overtly mocking the Court's injunctions,
Armstrong concludes that since "Judge Duryee has immunized Armstrong
from any future liability," Scientology should negotiate a new "contract"
with him to compensate him for all of the potential breaches he intends to
make in the future. (Opposition Brief at 46.)
of an injunction, have the criminal for the third time held in contempt, and
the criminal conclude that since the Court will sentence him but not enforce
the sentences, it is time for the victim to give him more money.
the Superior Court to reinstate in full the three prior contempt sanctions
imposed upon Armstrong. Unless the Court's orders of contempt are
enforced, they are utterly pointless.
PROOF OF SERVICE
I am employed in
the County of Los Angeles, State of California. I
On February 15, 2005, I served the foregoing document described as:
REPLY IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI
by first class mail, postage prepaid, on interested parties in this action
Marin County Superior Court
Executed on February 15, 2005 at Los Angeles, California.
I declare in accordance
with the laws of the State of California,
Exhibits to Reply Brief:
Wilson Declaration 12-01-1997
Armstrong Usenet post 11-26-1997 "The Beginning of the End of Endless Black PR"