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Case No.:__________

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION__________

CHURCH OF SCIENTOLOGY
INTERNATIONAL, A California
nonprofit religious corporation,

Petitioner,

vs.

SUPERIOR COURT OF THE STATE
OF CALIFORNIA, COUNTY OF
MARIN,

Respondent.


GERALD ARMSTRONG,

Real Parties in Interest.

Marin County Superior Court Case No.
157680.

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PETITION FOR A WRIT OF CERTIORARI OR, IN THE ALTERNATIVE, A
WRIT OF MANDAMUS

After Order re Sentences For Contempt by The Hon. Lynn Duryee,
County of Marin


  ANDREW H. WILSON (SBN 63209)
WILSON CAMPILONGO LLP
475 Gate Five Road, Suite 212
Sausalito, CA 94965-1475
Telephone: (415) 289-7100
Facsimile: (415) 289-7110
Attorney for Petitioner,
CHURCH OF SCIENTOLOGY
INTERNATIONAL

 

 

 

 

   

 

 

 

TABLE OF CONTENTS

 

Page

PETITION FOR A WRIT OF CERTIORARI OR, IN THE ALTERNATIVE,
A WRIT OF MANDATE
1
I.
INTRODUCTION
1
PETITION
3
II.
BENEFICIAL INTEREST OF PETITIONERS; CAPACITIES OF
RESPONDENT AND REAL PARTY-IN-INTEREST
3
III.
STATEMENT OF FACTS AND PROCEEDINGS BELOW
4
  A. First Breach of Contract Action
4
  B. First Order of Contempt
6
  C. Second Order of Contempt
7

D. Third Order of Contempt

7
  E. Second Breach of Contract Action
8
  F. Discharge of Sentences for First and Second Orders of Contempt
11
  G. Sentencing and Discharge of Sentence for Third Order of Contempt
12
  H. Appeal of the Related Action
12
IV.
WHY EXTRAORDINARY RELIEF IS NECESSARY
13
V.
BASIS OF RELIEF AND ABSENCE OF OTHER REMEDIES
13
VI.
TIMELESSNESS OF PETITION
13
VII.
PRAYER FOR RELIEF
14
  VERIFICATION
15
  MEMORANDUM OF POINTS AND AUTHORITIES
16
ARGUMENT
16
 

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VIII.
RELIEF BY CERTIORARI OR WRIT OF MANDATE IS THE
APPROPRIATE REMEDY FOR THE SUPERIOR COURT'S ORDER
16
IX.
THE LOWER COURT ERRED IN DISCHARGING THE SENTENCES FOR THE FIRST, SECOND, AND THIRD ORDERS OF CONTEMPT AND SHOULD BE ORDERED TO ENFORCE THE PLAIN TERMS OF THE ORDERS
18

A. Contempt Orders Are Final, Conclusive Judgments

18

B. The Discharge of the Contempt Sentences Was Not a Lawful Remission
20
C. The Payment of Compensatory Damages and One Voluntary Court Appearance
Cannot Substitute for Lawfully Imposed Punitive Sanctions
21

X.

CONCLUSION
23

 

 

 

 

 
 

ii

 

   

 

 

TABLE OF AUTHORITIES
 
Page

Cases

American Fire Protection Serv. v. Williams, 171 Cal. App. 2d 397, 340 P. 2d 644 (1959)

22
Bailey v. Superior Court, 142 Cal. App. 2d 47, 297 P.2d 795 (1956)
22
Board of Med. Exs. v. Terminal-Hudson Elecs., Inc., 73 Cal. App. 3d 376, 140 Cal. Rptr. 757
(1977)
18
Brewster v. Southern Pac. Transp. Co., 235 Cal. App. 3d 701, 1 Cal. Rptr. 2d 89, 95 (1991)
22
Butler v. Butler, 255 Cal. App. 2d 132, 62 Cal. Rptr. 825 (1967)
14, 16, 17, 18
City of Vernon v. Superior Court, 39 Cal. 2d 839, 250 P.2d 241 (1952)
20, 21
County of Lake v. Superior Court, 67 Cal. App. 3d 815, 136 Cal. Rptr. 830 (1977)
18, 20
Goodall v. Superior Court, 37 Cal. App. 723, 174 P. 924 (1918)
17
H.J. Heinz Co. v. Superior Court, 42 Cal. 2d 164, 175, 266 P. 2d 5 (1954)
22
In re Holmes, 145 Cal. App. 3d 934, 193 Cal. Rptr. 790, 797 (1983)
20
In re Wales, 153 Cal. App. 2d 117, 315 P. 2d 433 (1957)
22
O.P. Gale v. Toulumne County Water Co., 169 Cal. 46, 145 P. 532 (1914)
16, 18

Pecks Liquors, Inc. v. Superior Court, 221 Cal. App. 2d 772, 34 Cal. Rptr. 735 (1963)

16
People v. Batey, 183 Cal. App. 3d 1281, 228 Cal. Rptr. 787 (1986)
19
Reifler v. Superior Court, 39 Cal. App. 3d 479, 114 Cal. Rptr. 356 (1974)
17
Taylor v. Superior Court of Los Angeles County, 20 Cal. 2d 244, 125 P. 2d 1(1942)
16, 17

 

Statutes

CCP § 1222

13, 16,18
26 U.S.C. §501 (c)(3)
3
 

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Other Authorities

8 Witkin, Cal. Proc. Extraordinary Writs § 23l(a), (4th Ed. 1997)

16
9 Witkin, Cal. Proc. § 347, (4th Ed. 1997)
20
 

 

 

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COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION__________

CHURCH OF SCIENTOLOGY
INTERNATIONAL, A California
nonprofit religious corporation,

Petitioner,

vs.

SUPERIOR COURT OF THE STATE
OF CALIFORNIA, COUNTY OF
MARIN,

Respondent.


GERALD ARMSTRONG,

Real Parties in Interest.

Marin County Superior Court Case No.
CV 157680.

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PETITION FOR A WRIT OF CERTIORARI OR, IN THE ALTERNATIVE, A
WRIT OF MANDATE

To the Honorable Presiding Justice and the Honorable Associate Justices of the

Court of Appeal of the State of California:

Petitioner Church of Scientology International ("CSI") hereby petitions for a writ

of certiorari, or in the alternative for a writ of mandate, from an order of the Respondent

Superior Court dated May 20, 2004.

I. INTRODUCTION

This petition arises from an order of the Superior Court, Marin County, that

effectively excuses defendant Gerald Armstrong for over 100 adjudicated contempts of

 

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court and refuses to enforce prior sentences issued by earlier judges of fine and jail for 14

previously adjudicated contempts of court.

The essential facts are not in dispute. Armstrong and CSI entered into a settlement

agreement in 1986, pursuant to which Armstrong received $800,000, dismissed certain

legal claims against the Church, and agreed, inter alia, to strict confidentiality, to forego

any public mention of Scientology and its leadership, and to avoid voluntarily assisting in

litigation against Scientology churches. The agreement provided for liquidated damages

for each breach of the contract.

Beginning in approximately 1990, and continuing to this day, Armstrong

repeatedly and openly breached the agreement. When CSI obtained a money judgment

against him for his breaches, he avoided the judgment by declaring bankruptcy, after

either spending or "giving away" the $800,000 he received in the settlement. When CSI

obtained a permanent injunction against further breaches, Armstrong fled the jurisdiction

and moved to Canada, from where he openly and contemptuously disobeyed the court

order and publicly defamed Superior Court Judge Gary Thomas by alleging that he had

either been bribed or extorted by CSI.

Armstrong even appeared in public and on television and radio to publicly attack

Scientology and its leadership, announcing with glee that he was violating the court order

by doing so. Indeed, following the hearing in this case in which Superior Judge Lynn

Duryee refused to enforce both the prior and new contempt sentences and rendered the

liquidated damages provision of the contract unenforceable for future breaches,

 

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Armstrong triumphantly announced to the press that he now was free to ignore both the

settlement agreement and the injunction, and that he intended to do so.

In making its rulings, the court below not only committed fundamental errors of

law and grossly abused its discretion, it also usurped judicial power by acting in excess of

its jurisdiction.

PETITION

II. BENEFICIAL INTEREST OF PETITIONERS; CAPACITIES OF
RESPONDENT AND REAL PARTY-IN-INTEREST

1. Petitioner, Church of Scientology International, is a not-for-profit religious

corporation, recognized by the Internal Revenue Service as a church exempt from

taxation under 26 U.S.C. § 501 (c)(3). Petitioner is the plaintiff in the underlying

Superior Court consolidated action entitled Church of Scientology International v.

Gerald Armstrong, Marin Cty. Superior Court Nos. 152229 and 157680 (Consolidated)

("the Action"). Petitioner is also the plaintiff in the related Superior Court action

entitled Church of Scientology International v. Gerald Armstrong, Marin Cty. Superior

Court No. CV 021632 ("the Related Action"). On July 15, 2004 CSI filed a related

appeal from the Superior Court's judgment in the Related Action.

2. The Respondent Superior Court of the State of California, County of Marin,

is the Superior Court exercising judicial functions in both the Action and the Related Action.

3. Real Party in Interest, Gerald Armstrong is the defendant in the Action and

the Related Action.

 

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III. STATEMENT OF FACTS AND PROCEEDINGS BELOW

A. First Breach of Contract Action

4. In February 1992, plaintiff Church of Scientology International ("CSI")

brought the Action against defendant Gerald Armstrong for breaching a settlement

agreement entered into by the parties on December 6, 1986 (the "Agreement"). CSI

alleged that Armstrong repeatedly and openly violated various portions of the Agreement,

including paragraph 7(D), which provided:

Plaintiff agrees never to create or publish, or attempt to
publish, and/or assist another to create for publication by
means of magazine, article, book or other similar form, and
writing or broadcast or to assist another to create, write, film,
or video tape or audio tape any show, program or movie, or to
grant interviews or discuss with others, concerning their
experiences with the Church of Scientology, or concerning
their personal or indirectly acquired knowledge or
information concerning the Church of Scientology, L. Ron
Hubbard or any of the organizations, individuals and entities
listed in Paragraph 1 above. Plaintiff further agrees that he
will maintain strict confidentiality and silence with respect to
his experiences with the Church of Scientology and any
knowledge or information he many have concerning the
Church of Scientology, L. Ron Hubbard, or any of the
organizations, individuals or entitles listed in Paragraph 1
above .... Plaintiff agrees that if the terms of this paragraph are
breached by him, that CSI and the other Releases would be
entitled to liquidated damages in the amount of $50,000 for
each such breach.

Exhibits in Support of Petition for A Writ of Certiorari ["Exs."], Tab 1, [Pg. Nos. 06-08],

Mutual Release of All Claims and Settlement Agreement. 1


1The bracketed page citations are to the sequential number at the bottom of each Exhibit
page.

 

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CSI sought liquidated damages for each breach and injunctive relief to prevent any

future breaches. Armstrong asserted more than forty affirmative defenses, including

fraud, duress and that the liquidated damages provision was unreasonable and

unenforceable. Exs. Tab 3, [Pg. Nos. 063-078], Answer of Gerry Armstrong.

5. On October 17, 1995, Superior Court Judge Gary Thomas upheld the

validity of the Agreement, awarded CSI $300,000 in liquidated damages for six specified

breaches, and entered an order of permanent injunction, stating as follows:

1. Plaintiff and defendant freely and voluntarily entered into
a Mutual Release of All Claims and Settlement Agreement in
December, 1986.

2. Plaintiff performed all of its obligations pursuant to the
Agreement.

3. Defendant Armstrong received substantial consideration
for the promises which he made in the Agreement.

4. Since, 1990, defendant Armstrong has repeatedly
breached paragraphs 7(D) ....

9. Defendant Armstrong has reiterated numerous times that
he intends to continue breaching the Agreement unless he is
ordered by the Court to cease and desist ..........

10. Plaintiff's legal remedies are inadequate insofar as the
scope of the relief ordered below is concerned ...........

Accordingly, the Court finds that entry of a permanent
injunction in this action is necessary in this action because
pecuniary compensation could not afford the Church adequate
relief, and the restraint is necessary in order to prevent a
multiplicity of actions for breach of contract.

Exs. Tab 5, ¶10, [Pg. Nos. 090-091], Order of Permanent Injunction.

The court permanently enjoined Armstrong from "doing directly or indirectly any of the

following":

Facilitating in any manner the creation, publication,
broadcast, writing, filming, audio recording, video recording,

 

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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 (which includes plaintiff herein, CSI);

5. Discussing with anyone, not a member of Armstrong's
immediate family or his attorney, Scientology, the Church
and/or any of the Beneficiaries (including CSI)."

Id.

6. On May 2, 1996, the Order of Permanent Injunction was incorporated into a

judgment against Armstrong. Exs. Tab 6, [Pg. Nos. 094-096], Judgment. Armstrong's

appeal from the permanent injunction was dismissed by the Fourth District Court of

Appeal on December 23, 1997. Exs. Tab 7, [Pg. No. 97], Court of Appeal Order

Granting Dismissal of Appeal.

B. First Order of Contempt

7. On February 18, 1997, CSI moved for contempt for Armstrong's violation

of the injunction, based on Armstrong's voluntarily filing of a declaration in a case

pending in the United States District Court for the Northern District of California on

behalf of a party in litigation with a Scientology church. In that declaration, Armstrong

stated that the injunction issued by Judge Thomas "is an indicator of Scientology's

corruption of the judicial process." On June 5, 1997, Judge Thomas issued an order of

contempt, finding that Armstrong "willfully disobeyed the Order." Exs. Tab 8, [Pg. Nos.

098-100], Order of Contempt. Judge Thomas ordered that Armstrong pay a fine of

$1,000 and be confined in the County Jail for two days. Id. [Pg. No. 100]. Armstrong

 

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fled the jurisdiction, and on August 6, 1997, Judge Thomas issued a bench warrant for

his arrest. Exs. Tab 9, [Pg. No. 101], Bench Warrant.

C. Second Order of Contempt

On December 2, 1997 CSI again moved for an order of contempt, based upon

Armstrong's numerous additional, open violations of the injunction. On February 20,

1998, Judge Thomas issued a Second Order of Contempt, finding that Armstrong

"willfully disobeyed the Order ...in thirteen (13) separate incidents between September

2, 1997 and November 26, 1997." Exs. Tab 10, ¶4, [Pg. No. 104], Order of Contempt.

Judge Thomas imposed a fine of $200 per incident (for a total of $2,600) and ordered

Armstrong confined in the County Jail for a period of two days for each separate

incident, for a total of 26 days. Id. [Pg. No. 107]. The Court issued a second bench

warrant for Armstrong's arrest when he failed to surrender to serve his sentence. Exs.

Tab 11, [Pg. No. 108], Bench Warrant.

D. Third Order of Contempt

8. On November 13, 2000, CSI again moved for an order of contempt against

Armstrong for engaging in an additional 131 breaches of the injunction. Armstrong not

only did not deny the allegations but contemptuously boasted in his affidavit that, "I

have violated Scientology's Injunction thousands of times in my communications since

February, 1998, and tens of thousands of times since former Marin County Superior

Court Judge Gary Thomas signed it in October, 1995." Exs. Tab 12, ¶6, [Pg. No. 115],

Armstrong's Opposition to Order to Show Cause. Armstrong defiantly denied the

 

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authority of the Superior Court to issue or enforce the injunction, and stated his intention

never to comply with it:

This Court has no authority to make unlawful orders; which
include orders against public policy, orders in flagrant
unnecessary violation of Constitutional guarantees, orders
which are impossible to perform, and orders which generate a
great stupidity.

*     *     *

There are no "adequate criminal sanctions" which can be
ordered to make me comply with the Injunction, because it is
not lawful. What Judge Thomas did and said, since he would
not logically address the defenses and issues I raised, has
served only to strengthen my conviction that the Injunction he
signed is unlawful, and therefore need not be complied with
and cannot legally be enforced.

Id. ¶18, 19, [Pg. No. 122].

9. On July 13, 2001, Superior Court Judge Vernon F. Smith issued yet a third

Order of Contempt, finding that "Armstrong repeatedly, willfully and intentionally

disobeyed" the injunction over 131 additional times. Exs. Tab 13, ¶5, [Pg. No. 143],

Order of Contempt. Judge Smith postponed imposing a specific punishment until "such

time as Armstrong is apprehended [and] brought before this Court." Id. [Pg. No. 144].

E. Second Breach of Contract Action

10. On April 2, 2002, CSI initiated the Related Action for breach of contract

against Armstrong, seeking damages for the 131 prior violations, plus an additional 70

breaches. CSI sought compensation under the liquidated damages provision of the

Agreement. Exs. Tab 14, [Pg. No. 154], Complaint for Damages. Armstrong admitted all

 

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201 breaches in his answer to the complaint, which he signed, saying that he did so "at

the will of God." He further stated that he would continue to do so because, in his view,

the court's injunction was "illegal, unconstitutional, greatly stupid, impossible to

perform, anti-public policy, anti-American, anti-religion, diabolical, insane and clearly

unenforceable," and because, by issuing the injunction, the Court "abetted ...illegal

blackmail." Exs. Tab 15, [Pg. Nos. 213, 222-223], Answer of Gerry Armstrong.

11. The Related Action was assigned to Superior Court Judge Lynn Duryee and

set for trial on April 9, 2004. On that same day, the first Action, in which the contempt

findings and judgments previously had been issued, was reassigned to Judge Duryee.

12. On the day of trial in the Related Action, Armstrong appeared in person

with his attorney. Exs. Tab 16, Reporter's Transcript of Proceedings (hereinafter

"RT___"), [Pg. No. 298]. The Court stayed enforcement of the bench warrants in the

first Action until after trial. RT 6, [Pg. No. 301]. No actual trial, however, took place.

Instead, the Court first heard argument on plaintiff CSI's motion in limine to preclude

Armstrong from relitigating the validity and enforceability of the Settlement Agreement.

After taking that motion under submission, the Court invited opening arguments from

counsel. RT 25 [Pg. No. 320]. In the midst of Armstrong's counsel's opening statement,

Judge Duryee interjected that she would "consolidate these two matters [i.e., the third

contempt sentencing in the Action and the damages trial in the Related Action] and have

the contempt - - further hearing in the [third] contempt citation heard at the same time as

the trial on this matter [i.e., the second breach of contract claim for damages]." RT 44

 

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[Pg. No. 339]. After a recess, Judge Duryee reiterated that " I am treating this now as a

hearing on the sentencing that Judge Smith set." RT 46 [Pg. No. 341].

13. At the conclusion of Greene's argument, plaintiff moved for judgment on

the breach of contract claim. RT 49 [Pg. No. 344). After a brief recess, the Court

announced its tentative rulings. First, the Court held that Armstrong's proposed defenses

to the second beach of contract action were both precluded by res judicata and, in any

event, were without merit.

The court agrees with the motion for directed verdict on the
defenses. That is that none of the circumstances that were
described in the opening statement by Mr. Greene amount to
a defense in this case. And it appears that there is no quarrel
but that these 131 acts did occur. And it's quite clear from
Exhibit Number 1, that the settlement agreement did provide
for liquidated damages for violating the terms of the
settlement agreement. And it also is quite clear from the
court's judicial notice that this matter has been thoroughly
litigated and that a trial is not required for a final resolution of
the matter.

So I do believe that these defenses have been previously
litigated, previously ruled upon, and in addition the court has
listened to the opening statements of the defense. And even if
those things were proven to be true, there is no ambiguity in
the settlement agreement. And defendant, in accepting that
money, did undertake to abide by the terms and conditions of
the settlement agreement. And that particular provision was
not bilateral, it was unilateral. So that even if the Church said
horrible things about Mr. Armstrong, he is not justified to
violate the terms of the settlement agreement, but would have
other remedies under the law.

14. On the question of damages, however, the Court held that CSI was only

entitled to recover in damages the same amount that Armstrong had received 18 years

ago when the contract was entered into. Since Armstrong previously had been assessed

 

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damages of $300,000 (which he never paid, having declared bankruptcy), the Court

limited the liquidated damages to $500,000, which it characterized not as compensation,

but as "punishment."

Mr. Armstrong received a benefit under the settlement
agreement of $800,000. And I think it would be
unconscionable to punish him beyond what the benefit was
that conferred to him. He's previously been sanctioned in the
sum of $300,000.

So my thought is to enter judgment for the plaintiff, on the
admitted violations, of $500,000.

(emphasis added). RT 56 [Pg. No. 350].

F. Discharge of Sentences for First and Second Orders of Contempt

15. Then, in the next breath, without any notice or warning that the issue was

even before the Court, Judge Duryee vacated the two prior sentences of contempt

previously issued by Judge Thomas in the Action, on the ground that the new judgment

in the Related Action for $500,000 in compensatory damages (which Armstrong is

utterly incapable of paying) was punishment enough, and discharged the prior contempts

(which concerned different violations than the breaches at issue for which the Court

awarded the $500,000 judgment):

And in my view the bench warrants that have been previously
issued on the contempt citation, which call for, looks like,
around 30 days in jail, I would discharge the jail and the
contempt citation, the contempt punishment, with the entry of
the judgment of $500,000.

RT 56-57 [Pg. No. 350-351].

After hearing from counsel, the Court adhered to its stated intention:

 

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Judgment is entered in favor of the plaintiff and against the
defendant in the sum of $500,000. And the time that was
ordered on the contempt citations is deemed served.

RT 62 [Pg. No. 356]. Armstrong, of course, never "served" a minute of time for his

contempts.

G. Sentencing and Discharge of Sentence for Third Order of Contempt

16. CSI's counsel then reminded the Court that it had not sentenced Armstrong

for the third contempt order, which encompassed 131 additional contemptuous acts. The

Court responded:

So on the order of contempt issued July 13th, 2001, the court
sentences you to five days in jail and a fine of $1,000. The
fine is - - the fine is concurrent with the [civil] judgment
that's been rendered in this action [i.e.; the Related Action]
and the jail time is deemed served by your appearance in
court here today.

RT 63, [Pg. No. 357]. The Court did not explain how a fine for criminal contempt

payable to the court can be "concurrent" with a civil judgment for damages payable to a

party. Nor did it explain how an appearance in court is the equivalent of serving a five-

day jail sentence.

After submission of differing proposed orders by counsel for CSI and Armstrong,

the Court entered its own written orders on May 20, 2004, which incorporated these

rulings. Exs. Tab 17, [pg. Nos. 359-360], Order re Sentences for Contempt, Exs. Tab 18;

[Pg. Nos. 361-362], Order Granting Plaintiff's Motion for Judgment.

H. Appeal of the Related Action

17. On May 20, 2004, the Superior Court issued its final judgment in the

Related Action. CSI appealed that judgment on July 15, 2004.

 

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IV. WHY EXTRAORDINARY RELIEF IS NECESSARY

18. The Superior Court lacked jurisdiction either to alter the final and

conclusive sentences for the First and Second Orders of Contempt, or to essentially

override the sentence imposed in by the Court's own, final contempt sentence. The

original orders must be enforced.

19. The Superior Court committed clear legal error in holding that a

compensatory damages judgment in the Related Action for different violations of the

contract and permanent injunction can satisfy orders of criminal contempt in the Action.

20. The Superior Court's Order undermines respect for the power and authority

of the Court and its lawful orders by essentially excusing Armstrong for his repeated

violations of the Court's injunction and his public defiance of the Court's authority.

V. BASIS OF RELIEF AND ABSENCE OF OTHER REMEDIES

21. The basis of the relief is further set forth in the attached Memorandum of

Points and Authorities, which is incorporated by reference into this verified Petition as

though fully set forth.

22. CSI cannot appeal from the Court's order on the contempt sentences.

California Code of Civil Procedure, §1222. Relief by certiorari or mandamus is

appropriate. Butler v Butler, 255 Cal. App 2d 132, 136, 62 Cal. Rptr. 825 (1967.)

VI. TIMELESSNESS OF PETITION

23. The Superior Court's Order was dated May 20, 2004. This petition is filed

within 57 days of that date.

 

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VII. PRAYER FOR RELIEF

Wherefore, petitioner requests that this Court:

1. Issue a preemptory writ of mandate or of certiorari, or such other relief as may

be appropriate, directing the Respondent Superior Court to vacate its Order re Sentences

for Contempt and reinstate the original sentences;

2. Award petitioner recovery of its costs; and

3. Grant such other relief as may be just and proper.

Dated: July 15 , 2004

WILSON CAMPILONGO LLP

By: [signed] Andrew H. Wilson

ANDREW H. WILSON
Attorney for Petitioner
CHURCH OF SCIENTOLOGY

 

 

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VERIFICATION

I, the undersigned, declare as follows:

I, Andrew H. Wilson, am attorney for the Petitioner in the within action. I am verifying

this Petition and supporting papers rather than Petitioner because most of the facts set forth

herein are particularly within my personal knowledge, rather than Petitioner's, making my

verification appropriate under Code of Civil Procedure § 446. I have read the foregoing Petition

for Writ of Certiorari or, in The Alternative, A Writ of Mandamus, and the exhibits in support

thereof separately filed with this Court, and know the contents thereof, which are true of my own

knowledge except as to those matters which are stated on information and belief, and as to those

matters, I believe them to be true.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. Executed this 15th day of July, 2004, at Sausalito. California.

  [signed] Andrew H. Wilson
Andrew H. Wilson

 

 

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MEMORANDUM OF POINTS AND AUTHORITIES

ARGUMENT

VIII. RELIEF BY CERTIORARI OR WRIT OF MANDATE IS THE
APPROPRIATE REMEDY FOR THE SUPERIOR COURT'S ORDER

Because California does not permit an appeal from contempt proceedings, CCP §

1222; O.P. Gale v. Toulumne County Water Co., 169 Cal. 46, 50, 145 P. 532 (1914),

petitioner CSI seeks a writ of certiorari, or, in the alternative, a writ of mandamus. A writ

of certiorari is appropriate when a trial court has acted in excess of its jurisdiction in a

contempt proceeding. Taylor v. Superior Court of Los Angeles County, 20 Cal. 2d 244,

246, 125 P. 2d 1(1942); Butler v. Butler, 255 Cal. App. 2d 132, 136, 62 Cal. Rptr. 825

(1967) ("Certiorari will lie when the proceedings are absolutely void for want of

jurisdiction."). A writ of mandamus is appropriate when the trial court "in effect refused

to enforce a plain provision of a judgment." Id. Since the current petition would appear

to fit into either, or both, of these categories, CSI has phrased its request in the

alternative. See, Pecks Liquors, Inc. v. Superior Court, 221 Cal. App. 2d 772, 775, 34

Cal. Rptr. 735 (1963) ("When a pleader is in doubt as to the type of writ he should seek it

is proper to state his prayer in the alternative form, as petitioner has done here.") (citation

omitted); 8 Witkin, Cal. Proc. Extraordinary Writs § 231(a) (1997) (stating that "the

distinctions between the functions of the various extraordinary writs are not as clearly

drawn as might be desired"); id. at § 231(d) (so long as the appellate court has an

adequate record before it and there is no attempt to appeal from a non-appealable

judgment, "the cases uniformly follow the modern principle of pleading that neither

 

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mislabeling nor a defective prayer will bar relief justified by proper allegations and

proof") (citations omitted).

Moreover, CSI, the party on whose behalf the injunction was entered, is an

interested party in the outcome of the contempt proceedings below and is entitled to

review of the contempt preceding by way of writ:

[W]here, in a proceeding instituted by the beneficiary of a
judgment granting an injunction the disobedience of which is
made to appear, the court without any ground shown therefor
denies to such beneficiary the process of the court, which
constitutes the only means of enforcing the judgment, such
order should be annulled, since otherwise the judgment
solemnly pronounced would be an idle act.

Goodall v. Superior Court, 37 Cal. App. 723, 174 P. 924 (1918). Thus, CSI has standing

to bring this petition. Taylor, 20 Cal. 2d at 247, 125 P.2d 1 (petitioner has right to

question the [trial court's] order [refusing to hold party and his attorneys in contempt] by

writ of certiorari" because the petitioner, "for whose protection the injunction was

granted," is "a party beneficially interested in the ruling" and is "not a stranger to the

record"); Butler, 255 Cal. App. 2d at 136, 62 Cal. Rptr. 825 (where contempt proceedings

instituted by applicant were dismissed by trial court "the extraordinary writ of mandamus

will issue in contempt proceedings when the applicant has a clear right, and no other

specific and adequate remedy"); cf Reifler v. Superior Court, 39 Cal. App. 3d 479, 485,

114 Cal. Rptr. 356 (1974) (petitioner has standing because "an indirect civil contempt is

an action to protect the rights of a party to the litigation . . . and not simply a proceeding

to preserve the power of the court.") (citation omitted). CSI was the beneficiary of the

 

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injunction, which was issued to protect its contract rights.. This interest is more than

sufficient to confer standing.

IX. THE LOWER COURT ERRED IN DISCHARGING THE SENTENCES
FOR THE FIRST, SECOND, AND THIRD ORDERS OF CONTEMPT AND
SHOULD BE ORDERED TO ENFORCE THE PLAIN TERMS OF THE ORDERS

A. Contempt Orders Are Final, Conclusive Judgments

Judge Duryee had no jurisdiction to alter the final and conclusive sentences for the

First and Second Orders of Contempt, or to essentially override the sentence imposed in

her own final contempt order. The original orders must be enforced.

"[J]udgments and orders of a court or judge made in cases of contempt are final

and conclusive . . . and the court or judge retains no jurisdiction to alter a completed

judicial act." See County of Lake v. Superior Court, 67 Cal. App. 3d 815, 136 Cal. Rptr.

830 (1977) (citing CCP § 1222); CCP § 1222 ("The judgment and orders of the court or

judge, made in cases of contempt, are final and conclusive."); O.P. Gale v. Toulumne

County Water Co., 169 Cal. 46, 50, 145 P. 532 (1914); Board of Med. Exs. v. Terminal-

Hudson Elecs., Inc., 73 Cal. App. 3d 376, 388-89, 140 Cal. Rptr. 757 (1977); Butler v.

Butler, 255 Cal. App. 2d 132, 135, 62 Cal. Rptr. 825 (1967). In County of Lake, the court

of appeals held that even though the lower court entered a second contempt judgment

merely to correct deficiencies in its first judgment, "it had no authority to enter another

and different judgment . . ." 67 Cal. App. 3d 815, 136 Cal. Rptr. 830 (1977) ("The finding

of guilt in particulars specified and the formal imposition of sentence therefore

 

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constituted judicial action complete and final, and it was no longer open to the court to

make any further or different order therein.") (emphasis added).

Judge Duryee also lacked authority to discharge the final sentences that had been

imposed. In the First and Second Orders of Contempt, Judge Thomas found Armstrong

guilty of contempt and sentenced him to fines totaling $3,600 and 28 days of

confinement. In the Third Order of Contempt, Judge Duryee sentenced Armstrong to a

$1,000 fine and five days of confinement. These sentences were criminal contempt

sanctions, primarily designed to punish Armstrong for his repeated flouting of the

protective order and his avowed intent to continue to flagrantly violate that order. Their

purpose was to "vindicate the dignity [and] authority of the court." See People v. Batey,

183 Cal. App. 3d 1281, 1284, 228 Cal. Rptr. 787 (1986). In no way were these

sentences conditional on Armstrong's future compliance. Even if they could somehow

be so construed, Armstrong's continued pronouncements that he had disobeyed the court

order and would continue to do so because, in his view, the court's injunction was

"illegal, unconstitutional, greatly stupid, impossible to perform, anti-public policy, anti-

American, anti-religion, diabolical, insane and clearly unenforceable," Exs. Tab 15, [Pg.

Nos. 213, 222-223], unquestionably would not have satisfied any such condition.

Judge Duryee lacked the jurisdiction to discharge these sentences and should be

ordered to enforce the plain terms of the final contempt judgments.

 

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B. The Discharge Of the Contempt Sentences Was Not a Lawful Remission

The discharge of these sentences is not properly viewed as a lawful remission,

Armstrong made no motion to remit these sentences; thus, the terms of those sentences

were not properly before the court.

Moreover, even if the issue were properly before the court, no grounds for

remission of Armstrong's contempt sentences existed here. "In unusual cases, even

though a contempt judgment is sustained, if the violation was the result of an honest

mistake of law, and compliance is ultimately obtained, either the trial or appellate court

may grant a remission of punishment." Witkin, 9 Cal. Proc. § 347 (4th Ed. 1997) (citing

City of Vernon v. Superior Court, 39 Cal. 2d 839, 842, 250 P.2d 241 (1952)) (emphasis

added); see also County of Lake v. Superior Court, 67 Cal. App. 3d 815, 136 Cal. Rptr.

830 (1977) (where there are "mitigating factors," remission may be appropriate) (citing

City of Vernon, 39 Cal. 2d 839, 250 P. 2d 241 (1952)). The only thing "unusual" in this

case is the remarkable contempt which Armstrong has accorded the power and dignity of

the Superior Court.

In City of Vernon, the California Supreme Court held that the superior court erred

by denying the motion to remit the contempt sentence before it, the statutory maximum,

because the petitioners, city councilmen, were punished "for pursuing in good faith what

they were advised by counsel and believed were legal remedies available to the

councilmen and to the city which they represented." 39 Cal. 2d 839, 843, 250 P.2d 241

(1952); cf. In re Holmes, 145 Cal. App. 3d 934, 944,193 Cal. Rptr. 790, 797 (1983)

(vacating contempt order and sentence because novelty of rule breached by petitioner)

 

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In stark contrast to the councilmen in City of Vernon, Armstrong has acted in

manifest bad faith in pursuing his repeatedly contemptuous course of conduct. First, he

voluntarily accepted $800,000 in exchange for, among other things, his agreement to be

bound by all of its provisions, including Paragraph 7(D). Notwithstanding his receipt of

that money, Armstrong quickly demonstrated he had no intention of abiding by the terms

of that order, leading to the entry of a permanent injunction against him. Since that

injunction was entered, he has repeatedly, flagrantly, and admittedly violated that order at

least 201 times. Armstrong has also defiantly proclaimed his intention to continue to

violate the injunction because, in his view, it was "illegal, unconstitutional, greatly

stupid, impossible to perform, anti-public policy, anti-American, anti-religion, diabolical,

insane and clearly unenforceable," and because, by issuing the injunction, the Court

"abetted ... illegal blackmail." Given this history, not only was remission of the lawfully

imposed sanctions for Armstrong's repeated contempt unwarranted, it would have been a

"manifest abuse of discretion" for the court to remit Armstrong's contempt sentences

under these circumstances. See City of Vernon, 39 Cal. 2d at 843, 250 P.2d 241.

C. The Payment of Compensatory Damages and One Voluntary Court Appearance Cannot Substitute for Lawfully Imposed Punitive Sanctions

Judge Duryee indicated that the compensatory damages awarded in the Second

Breach of Contract Action, and Armstrong's voluntary appearance in court for the

scheduled trial in that matter, somehow relieved Armstrong of responsibility for his

contempt sanctions. RT 62, 63 [Pg. Nos. 356-357]. A compensatory damage award

against Armstrong (which Armstrong will surely never pay) in a different action for

 

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different violations of the permanent injunction simply cannot satisfy Armstrong's

outstanding contempt sanctions. See In re Wales, 153 Cal. App. 2d 117, 119, 315 P. 2d

433 (1957); Bailey v. Superior Court, 142 Cal. App. 2d 47, 53, 297 P.2d 795 (1956) ("A

contempt proceeding is not a civil action, either at law or in equity, but is a separate

proceeding of a criminal nature and summary character in which the court exercises but a

limited jurisdiction . . . .").

In addition to the errors in logic that pervade these rulings, they also amount to a

complete, misguided, and ill-advised surrender of a court's power and dignity in the face

of someone actively repudiating both. California courts have long recognized that

compensatory damages awards and contempt sanctions have differing purposes. 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." H.J. Heinz Co. v. Superior Court, 42 Cal. 2d 164, 175, 266 P. 2d 5 (1954);

American Fire Protection Serv. v. Williams, 171 Cal. App. 2d 397, 340 P. 2d 644 (1959).

Underscoring the differences between the two, courts have firmly held that compensatory

damages may not be awarded in contempt actions. See H.J. Heinz, 42 Cal. 2d at 175

("California has no provision for compensatory contempt proceedings. Civil damages

may be collected in an ordinary civil action for an act otherwise a contempt.") (internal

quotation and citation omitted); Brewster v. Southern Pac. Transp. Co., 235 Cal. App. 3d

701, 711, 1 Cal. Rptr. 2d 89, 95 (1991) ("[A] court has no authority to award

compensatory damages in a contempt action."); Bailey, supra, 142 Cal. App. 2d at 58,

 

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297 P.2d 795 ("[I]f real parties have suffered civil damages, a civil action is the proper

remedy."). Thus, the court erred in conflating the two and holding that the $500,000

compensatory damage award discharges Armstrong's responsibility to pay accumulated

fines of $4,600 and serve 28 days in jail, the punishment imposed for numerous

contempts.

Moreover, given that immediately prior to Armstrong's court appearance, he had

willfully evaded two outstanding bench warrants since 1997, it is difficult to understand

how one voluntary appearance could satisfy the five additional days of jail time to which

Judge Duryee herself sentenced Armstrong.

X. CONCLUSION

The orders discharging Armstrong's contempt should be vacated and the original

sentences reinstated.

Dated: July 5, 2004

WILSON CAMPILONGO LLP

By: [signed] Andrew H. Wilson
Andrew H. Wilson
475 Gate Five Rd., Ste. 212
Sausalito, CA 94965
Tel: (415) 289-7100

Attorney for Petitioner

 

 

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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 follows:

PETITION FOR A WRIT OF CERTIORARI OR, IN THE
ALTERNATIVE, A WRIT OF MANDAMUS; and EXHIBITS, VOL. I & II
IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI

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 State 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.

Angela Parker
(Type or Print Name)
[signed] Angela Parker
(Signature)

 

 

 

 

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