Case No. A107100
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION FOUR
CHURCH OF SCIENTOLOGY
INTERNATIONAL, A California
nonprofit religious corporation
Plaintiff and Appellant,
GERALD ARMSTRONG,an Individual,
Defendant and Respondent.
Appeal Case No. A107100
[Consolidated with Case No.
On Appeal from the Superior Court of the State of California
County of Marin
Honorable Lynn Duryee
TABLE OF CONTENTS
TABLE OF AUTHORITIES
Hong v. Somerset, 161 Cal. App.3d 111 (1984)
Kinney v. United HealthCare Services, Inc.
(App. 4 Dist.
1999) 83 Cal.Rptr.2d 348, 70 Cal.App.4th 1322
Scientology v. Armstrong
(1991) 232 Cal.App.3d 1060,
283 Cal.Rptr. 917
v. AT & T, N.D.Cal.2002,182 F.Supp.2d 902,
affirmed in part, reversed in part 319 F.3d 1126, certiorari
denied 124 S.Ct. 53, 157L.Ed.2d 24, 2003
31, 32, 33,
34, 35, 49
18 USC §241
18 USC §242
International Religious Freedom Act of 1998
[See also: Table
of Contents for Exhibits]
Plaintiff and appellant Scientology organization (“Scientology”)
appeals from a judgment of the Marin County Superior Court that
Scientology states “immunize[s] the defendant [and respondent Gerry
Armstrong (“Armstrong”)] from any future liability for breaching a contract
he admits having breached well over 200 times, has been adjudicated to
have breached 137 times, and which he vows to continue to breach
indefinitely in the future.”
Appellant’s Open Brief (“AOB”), pg. 1.
Armstrong agrees with Scientology’s interpretation of the meaning
and effect of the Marin Court’s judgment. Armstrong has “breached”
Scientology’s “contract” tens or hundreds of thousands of times, or more,
and he will continue to breach said contract, because it is impossible, and in
fact unlawful, for Armstrong to not do so. It is therefore eminently just that
the Court acted to immunize Armstrong from liability for the future
“breaches” of Scientology’s “contract” that he must commit.
The Marin Court stated in its judgment from which Scientology here
appeals: “It would be unconscionable to punish [Armstrong] beyond what
the benefit was that was conferred to him.” Scientology’s Exhibits in
Support of Petition for A Writ of Certiorari, (“Exs., ___: (Bates stamp
page nos.) ___ ”), Judgment, 18:361. What Scientology is attempting to do here,
seeking millions of dollars in “liquidated damages,” and potentially seeking
trillions or quadrillions of dollars or more, as will become obvious if this
case is ever permitted to be understood, is indeed unconscionable.
What Scientology also seeks, which this Court should not allow, are
all the advantages, threat and black propaganda1 opportunities that such
1Black Propaganda, [or] “black PR,”is the term Scientology founder L.
Ron Hubbard directed be used and Scientology uses for its policy and
practice of destroying a fair game target’s reputation, credibility and life
perpetual “indebtedness” would confer to this organization as a “judgment
creditor.” If such astronomical debt and the attendant lifetime of fair
game2 were not enough punishment, Scientology also seeks in this Court by
writ petition, Case No. A107095, consolidated herewith, (“Petition”) to
have Armstrong further punished by jailing and fining him for 145 or so
with covert and overt, relentless and pervasive libel and slander. Answer of
Gerry Armstrong, Exs.15: 214.
2Scientology founder L. Ron Hubbard ordered, and Scientologists accept
as true, that there is a class of citizens called “Suppressive Persons or
“SPs,”who are the most evil people in the world, destructive, criminal, and
deserving no mercy or rights. Hubbard called Scientology’s policy for
treatment of SPs “Fair Game,”and provided examples and types of Fair
Game to be applied to SPs in various policy letters or directives. E.g. in his
policy letter “
Penalties for Lower Conditions, Hubbard wrote:
ENEMY — SP Order. Fair game. May be deprived of
property or injured by any means by any Scientologist
without any discipline of the Scientologist.
May be tricked, sued or lied to or destroyed.
Scientology declared Armstrong to be a “
Suppressive Person” right after he
left the organization in December 1981 and has considered him an SP and
Fair Gamed him ever since. Armstrong’s Respondent’s Appendix
Declaration of Gerry Armstrong in Support of Opposition to
Motion for Summary Judgment, filed March 9, 2004. RApp.258.
The California Court of Appeal, Second District wrote about Scientology’s
Fair Gaming of Armstrong:
Commencing in February 1982, the international Church of
Scientology issued a series of “suppressive person declares”
in effect labelling Armstrong an enemy of the Church and
charging that he had taken an unauthorized leave, was
spreading destructive rumors about senior Church officials,
and secretly planned to leave the Church. These “declares”
subjected Armstrong to the “Fair Game Doctrine” of the
Church, which permits a suppressive person to be “tricked,
sued or lied to or destroyed ... [or] deprived of property or
injured by any means by any Scientologist. ...”
Scientology v. Armstrong (1991) 232 Cal.App.3d 1060, 1067,
“breaches.” This punishment Scientology seeks is especially cruel and
repugnant because at trial the Marin Court had vacated these ludicrous jail
sentences and fines, finding that Armstrong had already been punished
Granting Scientology the punishment it seeks to subject Armstrong
to by this appeal and by writ petition would naturally also set in place the
judicial machinery for thousands more jail sentences and fines for
thousands more breaches. If Scientology’s seeking to have Armstrong
punished beyond what the benefit was that was conferred to him is
unconscionable, which it cannot but be, Scientology’s petition and this
appeal, seeking exactly such punishment, in spades, are also
unconscionable, which indeed they are. Obviously unconscionability is
what was envisioned when exceptions were created to the principles of res
judicata and collateral estoppel, upon which Scientology bases its efforts to
do, and have this Court do, more of the unconscionable. Scientology’s
continuing to seek judicial enforcement of what has already been adjudged
unconscionable must be unconscionably unconscionable. Scientology’s
remedy by law is not to get this Court to impose the punishment
Scientology seeks pursuant to its “contract’s” unconscionable clauses, but
to submit to a hearing or trial on the circumstances at the time the
“contract” was made, its setting, purpose and effect.
Scientology’s actions to deprive Armstrong of his civil rights, by
threat, fraud, “contract” and abuse of the Justice System, in which abuse
Scientology’s appeal and petition in this Court are now a part, are unlawful,
being in violation of U.S. Federal Criminal Civil Rights statutes,
specifically 18 USC §§ 241,
. This Court has the authority and
opportunity to now put an end to Scientology’s use of the California Court
System to destroy Armstrong’s rights and privileges secured to him by the
Constitution and laws of the United States.
Armstrong is not attempting to deprive anyone or any organization
of their lawful rights of any kind. Scientology’s “contract” is
unconscionably one-sided. What Scientology is attempting to do to
Armstrong is the product of a criminal conspiracy, in which by “contract”
every Scientology or Scientology-related organization, corporation, or
entity and all of their directors, officers, employees, volunteers, agents,
assigns, and lawyers are “beneficiaries.”
Mutual Release and Settlement
Agreement, Exs., 1:1,2. It would be unconscionable, in fact unlawful, for
this Court to negate the immunization from future liability that the Marin
Court gave Armstrong, and punish him for his discussion of any criminal
conspiracy. Armstrong is discussing the criminal conspiracy that has for
twenty-three years actively and continuously targeted and victimized him
and sought to deprive him of his lawful rights and privileges. Res judicata
and collateral estoppel cannot be used to prohibit and punish the discussion
of a criminal conspiracy, which prohibition and punishment result in the
unlawful protection, survival and even reward of the conspiracy.
Scientology insists that it is a “church” and a “religion,” organized
for religious purposes. Armstrong is a religious person, and the “breaches”
of Scientology’s “contract” for which Scientology wants him punished at
the rate of $50,000 per utterance, plus punish him with jail sentences and
fines, are his free exercise of his religious rights guaranteed by the
Amendment to the U.S. Constitution. These communications are
inarguably Armstrong’s religious expression of his religious beliefs about a
Because for freedom of religion to exist a person must be free to
change his mind and his beliefs about a religion, and necessarily therefore
change his religious expressions in exercise of his religion and religious
beliefs, he cannot lawfully be bound by contract enforced by secular courts
to one form of religious expression. Logically, res judicata and collateral
estoppel also cannot be used to bind a person to a particular, judicially
ordered, prohibition of his religious expression, for the simple reason that
changing his religion and his religious beliefs cannot be lawfully judicially
prohibited. To do so is simple religious persecution. The present issue is
not identical to whatever was litigated in any prior proceeding for the
simple reason that, as Armstrong’s history and communications manifestly
show, he has, since any such proceedings, changed his religion, his
religious beliefs and his expressions of those religious beliefs.
Armstrong as an individual has the same guaranteed right of
religious free exercise granted by law to the Scientology enterprise. But
Armstrong is also the founder and director of his own church and religion,
the Church of Wogs (“CoW”), which has a publicly stated religious
purpose of opposing those who persecute wogs. “Wogs” is Scientology’s
and Scientologists’ “theological” term for non-Scientologists, a disparaging
word, parallel to “infidels” in Christian scripture. If the Christians
persecuted infidels, it is altogether possible that a Church of Infidels would
arise, as CoW has arisen as a divine and reasonable response to the
persecution of wogs by the Scientologists. CoW is utterly universalist,
being akin to the brotherhood of man. It is only Scientology and
Scientologists who persecute wogs as wogs, and Armstrong’s
communications about and in opposition to Scientology and Scientologists
are his expressions and free exercise of his wog religion and his wog
religious beliefs, and comprise CoW’s Scriptures. All of the hundreds,or
hundreds of thousands, of “breaches” for which Scientology wants this
Court to direct the Marin Court to assess Armstrong $50,000 each in
“liquidated damages,” and to jail and fine him, are his religious expressions
of his religious beliefs about a religion, and are moreover religious
scripture, and completely protected by the First Amendment.
It is inconceivable that this Court would ever consider enforcing
some Christian “church’s” “contract” that prevented a person, on penalty of
$50,000 per utterance, plus jailing and fines, from expressing his religious
beliefs about his religious experiences in the Christian religion. Armstrong
does not believe this Court would consider enforcing such a “contract,” and
he has found no instance where such a “contract” prohibiting anyone from
expressing his beliefs about Christianity, or even practicing Christianity,
was ever concocted, much less judicially enforced, in America.
If this Court would not enforce a “contract” that prevented a person
from expressing his religious beliefs about his religious experiences with
the Christian religion, and from communicating Christian scripture, but
would enforce a “contract” that prevented a person from expressing his
religious beliefs about his religious experiences with the Scientology
“religion,” and from communicating his own Church’s Scripture, then this
Court assists in the establishment of Scientology as a favored State
Religion, which establishment is forbidden by the First Amendment. If this
Court would enforce “contracts” that prevent people from expressing their
religious beliefs about their religious experiences with any or all religions,
or prevent people from changing religions, their religious beliefs or their
religious expressions about religions, and if such enforcement is in
accordance with some law, then that law must have been made in violation
of the First Amendment, which specifically prohibits such a law from being
All of Armstrong’s religious expressions in free exercise of his
religion for which Scientology seeks $50,000 per utterance, and to further
punish him with jailing and fines, and seeks this Court’s imprimatur on
such punishment, occurred outside California and outside the U.S.
Armstrong is a Canadian citizen living in Canada. A number of his
expressions of his religious beliefs for which Scientology seeks to have him
jailed and fined also occurred in Europe. Even if this Court conceivably
has some lawful authority to prohibit, limit or punish someone’s free
exercise of religion in California, this Court has no such authority to
prohibit, limit or punish anyone’s religious free exercise in Canada or
Europe, or anywhere beyond California. Pursuant to the U.S.’s
International Religious Freedom Act of 1998 (“IRFA”), the U.S. President,
Congress, Department of State, and U.S. missions around the world are
required by law to defend and assist Armstrong’s free exercise of religion
outside the U.S. and to condemn the actions Scientology is taking, and now
asks this Court to abet, to suppress his free exercise of religion outside the
U.S. All of Armstrong’s utterances constituting his free exercise of his
religion, for which Scientology seeks to punish him with the onerous
financial penalty of $50,000 per utterance, and jailing and fines, were made
after the date of the U.S.’s enactment of the IRFA, which was January 27,
Ford Greene, Armstrong’s lawyer at the April 9, 2004 trial, accepted
his representation only the day before trial, did not have time to study the
case and the facts and issues therein, and consequently at trial did not
present the vital facts that Armstrong’s utterances for which Scientology
sought to punish him occurred outside the U.S.; that these utterances are
Armstrong’s expression of his religious beliefs protected by the religious
exercise clause of the First Amendment; that what Scientology was doing
to Armstrong was a gross violation of U.S. civil rights criminal statutes;
that the IRFA applied to all Armstrong expressions for which Scientology
sought to punish him; and that by the IRFA the U.S. was required to
promote and protect such religious expressions. Until 1995, Greene had
represented Armstrong in the earlier Marin Scientology v. Armstrong cases,
nos. 152229 and 157680, which are now consolidated with the case, no. C
021632, from which this appeal arises, but Greene had not been involved
with these cases since 1995.
Scientology has unclean hands in this matter, significantly in its use
of its first wrongly obtained contempt order to wrongly achieve the
dismissal of Armstrong’s appeal in this Court from the summary judgment
that Scientology should never have obtained in the first place. Scientology
should be denied the use of this Court to pursue the instant appeal and to
obtain the writ it also seeks.
To rule in Armstrong’s favor in this appeal, involving gargantuan
but explicit numbers and sums of money, it is only necessary to do the
STATEMENT OF THE CASE
Scientology says that the essential facts in this case are not, and
never were in dispute. AOB, 1. This is simply untrue. The essential facts
in this case, up to the judgment of Marin Court Judge Gary W. Thomas
filed May 2, 1996 (Exs.,7) are provided in the section “Armstrong’s History
with Scientology,” pp. 3-29 in his
appellant’s opening brief in the appeal
Armstrong filed from Judge Thomas’
v. Armstrong, Case No. A075027, in this Court. That is a prior appeal in
the same case,
and Armstrong incorporates herein by reference thereto said
opening brief (“AOB-A075027”) the clerk’s transcript on appeal (“CT-
A075027”), and all other documents comprising the
record in that appeal.
Scientology falsely states, and has been falsely stating for years, that
Armstrong fled to Canada after being convicted of contempt by Judge
Thomas to avoid jail sentences, e.g.:
To avoid the jail sentences imposed for his contempt
convictions, Armstrong fled to Canada, from where he
committed the breaches that spawned the instant action.
AOB, 5, and
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.
Armstrong left California and traveled to Canada in January 1997.
Without notice to Armstrong of any contempt hearing, Scientology
obtained its first contempt order against him, as Scientology here states, on
June 5, 1997. Armstrong has stated when and why he left California in
many public and sworn statements, e.g.:
I obtained my first internet connection in early January, 1997,
while living in San Anselmo, and within a few days
discovered that someone had put on their internet web site the
submission Scientology had made to the IRS in response to
the IRS’s Form 1023 request. The organization, up until that
time, had lost all significant legal cases with the IRS, was
held to be non-tax exempt, and was facing a huge tax liability.
Scientology’s 1023 submission contained sections of black
PR on me, a true and correct copy of which, downloaded
from the internet, is appended hereto as Exhibit [F]. This
1023 response was the basis of the organization’s obtaining
tax exemption for all its associated corporate entities in 1993.
I believe that Scientology’s 1023 response was submitted to
the IRS in 1991 or 1992. On information and belief,
Scientology supreme dictator, or leader, David Miscavige
announced in 1993 that when Scientology triumphed in its
war on the IRS the organization was facing a billion dollar tax
liability. The importance of my earlier litigation and
testimony to the IRS in its denial of Scientology’s tax
exemption is shown by Scientology’s own statements in the
“the Service has continuously thrust the
Armstrong case at us, demanding an
explanation.” (Ex.F, 1)
“The IRS CID, however, absorbed
Breckenridge’s3 findings as the definitive
statement of what Scientology is, and used this
decision and the Flynn witnesses who testified
at the trial as the nucleus of their investigation.”
(Ex. F, 4)
Scientology’s statements about me and my earlier litigation,
Scientology v. Armstrong, Los Angeles Superior Court Case
No. C 420153, are in fact and conclusion false. The depth of
Scientology’s black PRing of me in its submission to the IRS
is shown by its statement:
“As we shall demonstrate below, all this
decision ever involved was Armstrong’s state of
mind, which subsequently obtained evidence
proved conclusively to be one sordid, sado-
masochistic nightmare. Furthermore,
Armstrong’s state of mind horror stories have
fallen on deaf ears in recent litigation. Relying
on Armstrong or the Armstrong decision is
wholly unjustified.” (Ex.F, 1)
3 Los Angeles Superior Court Judge Paul G. Breckenridge, Jr. (retired)
presided at the 1984 court trial of Scientology v. Armstrong, Case No. C
420153. Judge Breckenridge issued a lengthy decision
after a lengthy trial,
which became the judgment in the case. CT-A075027, 5948-5974. The
judgment was affirmed on appeal, Scientology v. Armstrong (1991) 232
Judge Breckenridge stated in his decision:
In addition to violating and abusing its own members civil
rights, the organization over the years with its “Fair Game”
doctrine has harassed and abused those persons not in the
Church whom it perceives as enemies. The organization
clearly is schizophrenic and paranoid, and this bizarre
combination seems to be a reflection of its founder LRH. The
evidence portrays a man who has been virtually a
pathological liar when it comes to his history, background,
and achievements. The writings and documents in evidence
additionally reflect his egoism, greed, avarice, lust for power,
and vindictiveness and aggressiveness against persons
perceived by him to be disloyal or hostile.
The decision rendered by Judge Breckenridge in that case,
along with the California Court of Appeal opinion affirming
that decision (Scientology v. Armstrong, (1991), 232
Cal.App.3rd 1060, 283 Cal.Rptr. 917) are appended hereto as
Exhibit [G]. I believe that to counter the IRS’s use of the
decision, Scientology concocted this scheme to black PR me
to the IRS, and anyone else the organization could get to
listen. Scientology submitted these false statements to the IRS
during a time the organization was attempting to judicially
silence me with its “settlement agreement,” and thus prevent
me from responding to its falsehoods. It was also significant
to me when I discovered this black PR that Scientology had
not produced these statements about me in discovery in this
case (Marin SC 152229/157680) when it was before Judge
Thomas, even though the IRS 1023 document was relevant
and of a type and nature of documents which were ordered
produced to me. When I read this black PR in Scientology’s
statement to the IRS on which its tax exemption is based, and
having experienced Scientology’s years of fair game, and
indeed feeling like I was being fair gamed by Judge Thomas
and could never get a fair hearing before him, I immediately
decided to escape. I believe that Scientology will do anything
to silence me completely and forever. I also believe that
Scientology’s false submission to the IRS and its obtaining of
its tax exemption based thereon constitutes a massive fraud
upon the people of not only the US but the world. I therefore
had to leave the US, where Scientology could prevent me
from correcting this fraud, and have me harmed in many ways
to so prevent me, to be in a country where I have legal
protection from Scientology’s abuse of the justice system and
where I could work to correct its fraud.
Declaration of Gerald Armstrong in Support of Opposition to Scientology’s
application for OSC re contempt, dated January 9, 2001, Exs., 12:123-4.
Section of Scientology’s 1992 IRS Form 1023 responses, Ex. F to
Armstrong’s January 9 declaration. RApp.4-7.
On January 23, 1997, after deciding to leave California, as described
above, Armstrong was served with a subpoena for production of documents
by defendant Grady Ward in the case of Religious Technology Center v.
Ward, U.S. District Court for the Northern District of California, Case No.
C-96-20207 RMW. RApp.10. The following day, Armstrong received a
from attorney Andrew H. Wilson, attorney for Scientology herein, in
which Wilson insisted Armstrong not produce the documents Ward had
subpoenaed, and threatened Armstrong with prosecution based on Judge
RApp.12. Armstrong wrote a
January 26, 1997 identifying himself and describing his relevant testimony
as a subpoenaed witness, his Scientology-related expertise, his own
complex legal circumstances, and the Wilson threat that caused Armstrong
to write the declaration, and mailed the declaration to the District Court
Judge presiding in the Ward case, the Honorable Ronald M. Whyte.
Armstrong also mailed a copy of the declaration to the attorney of record
for the Scientology plaintiff in that case. RApp.13-57. Armstrong has
described these events in several declarations in a number of legal
On January 23, 1997 I received a subpoena
for production of
documents, a true and correct copy of which is appended
hereto as Exhibit [I], from defendant Grady Ward in the case
of RTC v. Ward, US District Court for the Northern District
of California, case no. C-96-20207 RMW. Mr. Ward’s
“You are commanded to produce and permit
inspection and copying of the following
documents or objects [ ]:
All documents and declarations authored by
yourself documenting abuse, fraud, and
unlawful acts by the Church of Scientology
Enterprise or any of its investigators, such as
Eugene Martin Ingram.” (Ex. I)
On January 24, 1997 I received by fax a letter, a true and
correct copy of which is appended hereto as Exhibit [J], from
Scientology attorney Andrew H. Wilson, threatening
prosecution in the Superior Court if I provide the documents
to Mr. Ward as subpoenaed. Mr. Wilson’s statement in the
second paragraph that my “obligation to produce documents
in response to lawfully issued and served subpoena is
unquestioned” I took to be an effort to give plausible
deniability to the threat and the clear obstruction of justice
contained in the rest of the letter. I understood Mr. Wilson to
be saying for Scientology, “We know you have a legal right
to produce the subpoenaed documents, but we’re going to
prosecute you anyway.” His threat of “further conflict and
annoyance” from Scientology unless, as he insisted, I
withheld the subpoenaed documents from Mr. Ward is very
clear. In response to Mr. Wilson’s threat, I sent the
declaration to Judge Whyte, who, I believed, and still believe,
was the proper person to be advised of and curtail
Scientology’s interference with a witness in the cases before
[ ] Mr. Wilson’s
threat that I would be prosecuted for
producing documents to Mr. Ward, even though I had been
subpoenaed was not the first time Scientology lawyers had
made such a threat. When I was served with a deposition
subpoena in the Corydon v. Scientology case in the fall of
1989, Scientology attorney Heller threatened me multiple
times with being sued if I testified, even though he
acknowledged I had been served. Mr. Heller’s threats are
detailed in my appellant’s
opening brief. (Ex. A, 11-13) In my
opinion, Scientology’s and its lawyers’ misuse of the
agreement” and the Injunction in order to obstruct
justice, even beyond how these documents on their face
obstruct justice, demonstrates that the intent of the documents
and their creators is unlawful.
In his declaration of January 26, 1997, Armstrong stated why he was
sending it to Judge Whyte:
On January 23, 1997 I received in the mail from Grady Ward
a subpoena, a true and correct copy of which is attached
hereto as Exhibit [T], for production of documents in his case.
[ ] On January 24
I received from attorney Andrew H.
Wilson a fax letter, a true and correct copy of which is
attached hereto as Exhibit [U], threatening prosecution in
IV if I provide documents to Mr. Ward pursuant to
his subpoena. This letter is frightening to me, and supports
why I am sending this declaration directly to the Court, and
why the “settlement agreement” and the Thomas order are
illegal. Mr. Ward does not have the time to wait for my
testimony until Scientology’s motion for protective order is
heard before he must file this testimony. In my opinion, that
is precisely why Mr. Wilson has sent his threat letter.
RApp.55; and Declaration of Gerald Armstrong in Support of Opposition to
Motion for Summary Judgment, dated March 2, 2004, RApp.267,268.
On February 19, 1997, following Armstrong’s moving to Canada,
Scientology filed an application for an OSC
re contempt in Marin Superior
Court seeking to have Armstrong punished for sending Judge Whyte his
declaration concerning attorney Wilson’s January 24, 1997 threat.
RApp.13-57. Armstrong was never served with Scientology’s application.
He recently obtained from the Office of the Clerk of the Marin County
Court a copy of the Declaration
of Andrew H. Wilson in Support of Ex
Parte Application for Order to Show Cause Re Contempt, dated February
14, 1997, and filed February 19, 1997. RApp.58-62
Nowhere in his February 14 declaration does Wilson mention
Armstrong’s having been subpoenaed, or Wilson’s threatening letter of
January 24 to Armstrong, or the reason Armstrong stated in his January 26
declaration to Judge Whyte for sending his declaration: Wilson’s clear and
unlawful threat to Armstrong, a subpoenaed witness in the Ward case.
Wilson states in his February 14 declaration:
Declaration consists of a verbose
regurgitation of every imagined wrong done to Armstrong,
and a host of other “victims,” by CSI and its affiliates since
the late 1970s. In it, Armstrong states that he is sending the
Declaration to Judge Whyte directly so as not to violate the
Injunction. Declaration at ¶10. Armstrong has concluded that
he can properly send the Declaration to Judge Whyte because
he is only prohibited from assisting persons litigating against
CSI and affiliates, and that the Declaration is provided to
assist Judge Whyte to assist him in “judging litigations
involving the orders ‘beneficiaries’.” RApp.61.
This mischaracterizes what Armstrong actually stated in para.10 of
his January 26 declaration:
10. This order does not, however, prohibit me from
voluntarily assisting a person judging litigations involving the
order’s “beneficiaries.” I believe that the United States
District Court is a “governmental organ or entity” excluded
from the prohibitions of the order. (See, Ex. A, 8:1,2; 6,7) I
am therefor providing the original of this declaration to the
Court. I also believe that it would be improper to send this
declaration to the Court in secret, thus I am sending copies to
the parties or their counsel.
RApp.17. As Armstrong stated in his January 26 declaration, the injunction
specifically excluded governmental organs or entities from the class of
persons which the injunction prohibited him from voluntarily assisting.
Exs., 5:91,92, paras. nos. 1,2,3.
Wilson states in his February 14, 1997
5. The Honorable Ronald Sohigian entered the Preliminary
injunction in late May, 1992. Less than a month later, I was
questioning Mr. Armstrong at a deposition when he testified
on his intention to ignore the settlement agreement and Judge
A. When, I mean, I have, I have absolutely no
intention of honoring that settlement agreement.
I cannot. I cannot logically. I cannot ethically. I
cannot morally. I cannot psychically. I cannot
philosophically. I cannot spiritually. I cannot in
any way. And it is firmly my intention to not
RApp.59. Armstrong’s deposition testimony
is very clear that he is
testifying about Scientology’s “contract” and not about the preliminary
injunction entered by Los Angeles Superior Court Judge Ronald Sohigian.
Wilson is fibbing. RApp.9
Wilson states in his February 14, 1997 declaration:
16. While the preliminary injunction which preceded the
Order was in effect, Armstrong willfully disobeyed it on
numerous occasions. This gave rise to an earlier Order To
Show Cause Re Contempt, which was heard in December
1994 by the Honorable Diane Wayne. I represented CSI at
that hearing. Armstrong admitted the violations and pled for
mercy from the court. Judge Wayne discharged the contempt
but admonished Armstrong to conduct himself appropriately
in the future.
RApp.61. This is false. The May 28, 1992 “preliminary
much narrower than Judge Thomas’ “permanent
injunction” and Armstrong
willfully violated it on no occasion. Order, CT-A075027, 91-94. Los
Angeles Superior Court Judge Diane conducted a hearing on Scientology’s
OSC re contempt against Armstrong on July 28, 1994, and issued her order
denying the OSC the next day. Armstrong at no time violated the
preliminary injunction, and at no time “admitted the violations” as he had
committed none. In her order, Judge Wayne discharged the OSC and
Armstrong, and said not one word admonishing Armstrong for anything.
CT-A075027, 7499-501. There was no later hearing conducted by Judge
Wayne in December 1994.
On February 18, 1997 Judge Thomas issued an OSC re contempt,
which was never served on Armstrong. Judge Thomas signed an order of
filed June 5, 1997, finding Armstrong in contempt of court for
sending his January 26, 1997 declaration to Judge Whyte, and punishing
Armstrong with a fine of $1,000.00 and 48 hours in jail. Exs.8:100. There
is no mention in the order of Ward’s subpoena to Armstrong, Wilson’s
letter of January 24 to Armstrong, or the actual reason Armstrong stated in
his January 26 declaration for sending his declaration to Judge Whyte:
Wilson threatening Armstrong after he was served with a subpoena in the
The June 5, 1997 order states:
5. ARMSTRONG willfully disobeyed the order. On or about
January 26, 1997, ARMSTRONG sent a document entitled
DECLARATION OF GERALD ARMSTRONG to United
States District Judge Ronald M. Whyte. Judge Whyte was at
the tine presiding over three cases in which the plaintiff is
RTC. In the Declaration, ARMSTRONG recites his
understanding that he was prohibited from sending such a
Declaration directly to litigants end states that he is instead
sending it directly to Judge Whyte in the hopes of influencing
his decision on a pending matter. This evidences
ARMSTRONG’s willful disobedience of the Order and
Nowhere in his January 26, 1997 declaration does Armstrong state
that he sent it directly to Judge Whyte in the hopes of influencing his
decision. The only reason why Armstrong wrote his declaration and sent it
to Judge Whyte was to report Wilson’s threat to Armstrong, a subpoenaed,
knowledgeable witness in the Ward case, over which Judge Whyte
presided. Armstrong did request Judge Whyte to prohibit Scientology from
interfering with him as a witness, but that request too was made only
because of Wilson’s threat. RApp.57
On or about August 25, 1997, while living in Canada, Armstrong
timely filed his opening brief in the appeal he had taken from the Marin
Court injunction. AOB-A075027.
About November 18, 1997 Scientology filed a motion to dismiss
Armstrong’s appeal, claiming that, by Judge Thomas’ June 5, 1997
contempt order punishing Armstrong for reporting the Wilson threat by
declaration to Judge Whyte, Armstrong was a fugitive from justice and
therefore should be denied any aid from the Court. Motion-A075027.
Scientology’s motion to dismiss Armstrong’s appeal was signed by
attorney Wilson and supported by a declaration of Wilson dated November
18, 1997. Wilson Declaration-A075027.
Nowhere in the motion,
of points and authorities
(“Memo”) or his declaration
does Wilson mention Ward’s subpoenaing
Armstrong, Wilson’s letter of January 24, 1997, or the reason Armstrong
stated in his January 26 declaration to Judge Whyte for sending the
declaration: Wilson’s threatening of Armstrong, a subpoenaed witness
the Ward case.
Scientology states in its motion
The court below held appellant Gerald Armstrong in
contempt of court for willful violation of the permanent
injunction which is the subject of this appeal and punished
Armstrong by imposing a fine of $1,000.00 and a term of
confinement in the County Jail for a period not to exceed 48
hours. Rather than discharging the contempt order of the
Superior Court, or properly noticing a timely appeal from it,
Armstrong fled the United States and is prosecuting this
appeal from Canada. The appeal should therefore be
Motion-A075027, Memo, 1. As shown, Scientology obtained its order of
June 5, 1997. Armstrong had left California in January.
Scientology repeats the
same falsehood later in its motion to dismiss
Armstrong did not appeal the Order of Contempt and the time
for filing a notice of appeal of that Order has passed.¶
Rather, in the face of the Order of Contempt, Armstrong fled
the United States. He has not paid the $1,000 fine and he has
not submitted to confinement in the county jail.
Motion-A075027, Memo.5. Armstrong could not have appealed because
he was not served with the contempt order. He left the US months before
Scientology obtained the contempt order, not in the face of it.
Wilson states in his November 18, 1997 declaration:
[O]n January 26, 1994, Armstrong submitted a 45 page
declaration against the Religious Technology Center
("RTC"), one of the named beneficiaries of the 1986
Settlement Agreement. He sent this declaration, containing
material directly violating the agreement and Order, to the
Hon. Ronald M. Whyte [ ] Accordingly, CSI moved for an
Order to Show Cause why Armstrong should not be held in
contempt of court for his actions. Rather than responding to
the OSC Armstrong fled the country, moving to Canada
where, to the best of my knowledge, he currently resides.
Armstrong's flight required that we serve the Order to Show
Cause by publication.
Wilson Declaration-A075027, p. 6. Again this is false. Armstrong did not
know of the OSC until Scientology filed its motion to dismiss his appeal in
this Court. Armstrong was in Canada before Scientology applied for its
OSC so he could not have fled “rather than responding.”
Wilson states in his November 18, 1997
In settling this litigation, it was the Church's desire to end its
relationship with Armstrong once and for all. In order to
accomplish this, the Church insisted [that Armstrong end his]
voluntary support to anti-Scientology litigants [,] return to the
Church documents which he had stolen and [ ] refrain from
discussing with third parties his experiences with the
Scientology religion and to keep confidential all terms of the
settlement itself. [ ] In May, 1992, [ ] the Hon. Ronald
Sohigian entered a preliminary injunction which prohibited
Armstrong from further violations of the key provisions of the
[ ] In June, 1992 I took Armstrong's deposition in this case.
During the deposition, in the face of Armstrong's assertions
that he did not consider himself restrained in any way by the
contract which he had entered with CSI in 1986, I questioned
him as to whether he intended to obey the order of Judge
Sohigan. Armstrong responded:
A. When I mean, I have, I have absolutely no
intention of honoring that settlement agreement.
Wilson Declaration-A075027, p. 2-3.
In the deposition section Wilson quotes, he did not question
Armstrong about Judge Sohigian’s order, and Armstrong did not discuss or
refer to that order. Wilson asked Armstrong about the “settlement
agreement” and Armstrong answered about the “settlement agreement.”
Wilson Declaration-A075027, p. 3, Exhibit A thereto,
excerpt of Armstrong
deposition, dated June 24, 1992 Also, RApp.8,9.
Armstrong had “stolen” no documents.
Judge Breckenridge found
the justification for Armstrong’s conduct manifest, and the Scientology
plaintiffs’ causes of action for conversion must fail. CT-A075027, 5959.
Scientology repeats the false claim of “stolen” documents in its motion to
dismiss the appeal. Motion-A075027, Memo.2.
Judge Sohigian’s May 28, 1992
preliminary injunction did not
prohibit Armstrong from further violations of the “key provisions of the
settlement agreement” that Wilson identifies, but prohibited Armstrong
only from voluntarily assisting claimants against Scientology. The
preliminary injunction did not prohibit Armstrong from voluntarily
assisting defendants against Scientology, or from discussing his
experiences with Scientology or the settlement’s terms. CT-A075027, 91-
94. The prohibitions contained in Scientology’s “contract”
broader, and contained conditions that are unlawful on their face; e.g.,
avoidance of service of process, Exs.1: 10-11,
para. 7H; non-assistance to
government agencies, Id, 13, para. 10.
On December 17, 1997, Armstrong filed a request in this Court for
extension of time, requesting “an extension until December 30, 1997 to file
his opposition to Scientology’s motion to dismiss this appeal.” Request-
A075027. This Court erroneously considered Armstrong request for an
extension of time to be his “opposition to the motion to dismiss” and
dismissed his appeal on December 23, 1997. Order, Exs.7:97.
Armstrong appended to his request for extension, in order to
demonstrate his diligence, good faith and intention to file an opposition, a
declaration he had written to support what would be the opposition he
requested an extension of time to file. Armstrong does not possess that
declaration, but is including in his respondent’s appendix a copy of his
declaration dated December 27, 1997 that was written to support the
opposition for which he requested time to file, and which can be compared
to the declaration appended to said request that was filed. RApp.84-132.
Prior to this Court’s dismissal of Armstrong’s appeal, he
communicated by telephone with a clerk in this Court, and understood from
the clerk that his extension request was granted. Armstrong spoke to the
clerk by telephone on or about December 27 to advise the Court that his
opposition would be filed by December 30, and at that time learned from
the clerk that the appeal had been dismissed, and that he could not file his
opposition. Armstrong was devastated with this development, and
coincident with this shocking ruling was for a period of a week or more
extremely ill. When he recovered, because he was denied the aid of the
California Courts to correct the injustice and abuse in those Courts that
Scientology was perpetrating, Armstrong believed he had no choice but to
expose and combat that injustice and abuse without the Courts’ aid, and
seek justice in the international court of public consciousness. Armstrong
has done so ever since, as shown by
his postings to the Internet newsgroup
alt.religion.scientology, for which Scientology wants him punished.
Appellant’s Appendix (“AApp.”), 96-399. See, e.g., Armstrong’s May 22,
1998 posting, which is a declaration Armstrong executed May 6, 1998 and
filed in Armstrong v. Miscavige, et al., U.S. District Court, District of
Nevada, No. CV-N-97-00670-ECR (RAM) in response to Scientology’s
motion to dismiss, which was supported by a
declaration of Andrew
44. I am more certain than ever that the orders of the
Marin Superior Court, upon which the Scientology
defendants herein rely to claim that I am a fugitive from
justice, and to support their motion to dismiss this case,
impermissibly violate the US Constitution's guarantees of
First Amendment freedoms, are against public policy and
illegal. I can no more be legally judicially compelled to not
mention L. Ron Hubbard, Scientology or my experiences in
that "religion" than another US citizen can be legally
judicially compelled to not mention, on penalty of fine and
imprisonment, God, Jesus Christ, the Christian religion, or the
person's religious experiences in that religion. I do not believe
that the right to discuss a religion or religious experiences or
reform a religion can legally be contracted away or judicially
prohibited and punished. I am certain that the Marin Court's
order, which Scientology interprets to permit that
organization and its agents to say or publish whatever they
want about me, and prohibit me from responding or punish
me with fines and imprisonment if I do respond, is against
public policy, obstructive of justice, and illegal. This
interpretation by Scientology is articulated in a letter dated
February 25, 1997 from attorney Wilson to my attorney
George Abbott, a true and correct copy of which is appended
hereto as Exhibit M. Mr. Wilson states in that letter that I am
not free "to communicate orally, in writing or by any
other legal means available to [me] to fully correct [ ] alleged
lies and distortions." (Ex. M p.1, para 3). The Scientology
organization leaders and their agents have subjected me for
over fifteen years to a massive international black PR assault
on my character, credibility, safety and peace. I cannot
believe that I can, in this country, be legally prohibited from
defending myself. I cannot believe that our justice system will
continue to permit this modern day slavery.
About December 16, 1997, while its motion to dismiss Armstrong’s
appeal was pending, Scientology filed an application for an OSC re
contempt in the Marin Superior Court seeking to have Armstrong punished
for Internet postings he made in Canada, an appearance on UK television,
and media interviews in Germany. RApp.71-83. Said application, signed
by attorney Wilson, was supported by a declaration of Wilson dated
December 1, 1997. RApp.64-70.
In his December 1, 1997
declaration, Wilson repeats the same
falsehoods he had used to obtain Scientology’s first contempt order against
Armstrong and the dismissal of Armstrong’s appeal.
The Honorable Ronald Sohigian entered the Preliminary
Injunction in late May, 1992. Less than a month later, I was
questioning Mr. Armstrong at a deposition when he testified
of his intention to ignore the settlement agreement and Judge
A. When, I mean, I have, I have absolutely no intention of honoring that settlement agreement.
While the preliminary injunction which preceded the Order
was in effect, Armstrong willfully disobeyed it on numerous
occasions. This gave rise to an earlier Order To Show Cause
Re Contempt, which was heard in December 1994 by the
Honorable Diane Wayne. I represented CSI at that hearing.
Armstrong admitted the violations and pled for mercy from
the court. Judge Wayne discharged the contempt but
admonished Armstrong to conduct himself appropriately in
Mr. Wilson also states in his December 1, 1997 declaration:
I am informed and believe that, beginning in approximately
1990, Armstrong fraudulently transferred substantially all of
his assets and began repeatedly breaching almost every
covenant he made in the Agreement.
RApp.65. Armstrong made no fraudulent transfer. Wilson and other people
serving Scientology’s purposes have disseminated this falsehood
continuously for over a decade. See, e.g., Internet posting of December 19,
2002, in Exhibit D to Armstrong declaration of March 2, 2004.
Armstrong hid his money by giving it away.
Gerry Armstrong tried a variety of maneuvers (including
establishing a bogus corporation) in an effort to protect the
proceeds he received in his settlement with the Church of
When that didn't work, he transferred the proceeds to others.
That's when he began his "witty" ruse that he was a Prophet
of God [R].
In fact, on June 13, 1997, after a hearing on Scientology’s
application for writ of attachment to seize a house that had been
Armstrong’s years before,
Judge Thomas had ruled that there was no
Plaintiff's application for a right to attach order and writ of
attachment is denied. Plaintiff has not established the
probable validity of its claim that defendant transferred the
subject property to Walton "[w]ith actual intent to hinder,
delay, or defraud" plaintiff. Plaintiff's own evidence shows
that defendant never believed the settlement agreement was
enforceable and thus would not have expected plaintiff would
be able to recover under the liquidated damages provision.[ ]
thus, this supports the conclusion that defendant gave away
his property because of his calling from God rather than to
avoid his obligations to plaintiff.
RApp.63. Scientology never appealed this ruling, it has been final for
seven years, and Scientology has done nothing to prosecute its fraudulent
fraudulent conveyance lawsuit ever since. Wilson knew of Judge Thomas’
June 13, 1997 ruling when Wilson wrote his December 1, 1997 declaration
because, as the ruling shows, Wilson was present in court when the ruling
was made. RApp.63.
Scientology concludes its December 1, 1997
application with a
demand that Armstrong be prosecuted criminally.
Further, upon finding Armstrong in contempt under Code of
Civil Procedure § 1209, et seq., referral to the District
Attorney for misdemeanor prosecution under Penal Code §
166(4) is also necessary to curtail Armstrong's continued
defiance of this Court's authority.
As Armstrong’s May 22, 1998 posting to the Internet, quoted supra,
shows, Wilson submitted the same set of falsehoods in the Nevada
litigation as Wilson had used to have Armstrong punished for contempt of
court and have his appeal dismissed.
22. CSI and RTC also supports their motions to
dismiss with a declaration executed by attorney Andrew
Wilson which contains a substantial number of untruths. Mr.
In late January, 1997, I learned of actions by
Mr. Armstrong that I believed were clear violations of the
[October, 1995] Injunction. Armstrong sent to the Hon.
Ronald M. Whyte, the United States District Judge presiding
over three cases in which the plaintiff is Religious
Technology Center ("RTC"), a beneficiary of the Injunction, a
letter and lengthy declaration disseminating information
denouncing CSI and its related entities. ¶ This was not
Armstrong's first violation of the Injunction. Prior to that,
Armstrong repeatedly and wilfully disobeyed the preliminary
injunction which preceded the permanent injunction. (Wilson
Decl. 2:20-26) I at no time disobeyed the "preliminary
injunction." Between 1992 and 1994 Scientology attempted to
have me sentenced and jailed for several non-existent
"violations" or "contempts" which its agents manufactured.
All of the alleged contempts were discharged, and Mr.
Wilson, who participated in the contempt proceedings, is
fully aware of this fact.
23. I sent the
true and correct
copies of which are appended hereto as Exhibit D, to Judge
Whyte to properly report an improper threat received from
attorney Wilson. I had been subpoenaed by defendant Grady
Ward to produce documents in the case of RTC v. Ward, US
District Court for the Northern District of California, case no.
C-96-20207 RMW. A true and correct copy of the subpoena
is appended hereto as Exhibit E. The following day I received
from Mr. Wilson a
letter, a copy of which is appended hereto
as Exhibit F, threatening "further conflict and annoyance"
between me and Scientology if I produced the subpoenaed
documents. I considered and still consider Wilson's threat to
be obstructive of justice and so reported it to Judge Whyte. I
had been threatened by Scientology lawyers on a number of
other occasions when I had earlier been subpoenaed as a
witness in Scientology-related litigations.
On February 11, 1998, Judge Thomas signed a contempt order
against Armstrong, for 13 violations of the injunction, consisting of 8
Internet postings in Canada and 5 media interviews in Europe. Judge
Thomas punished Armstrong with a sentence of 2 days in jail and a fine of
$200 for each of the violations, and ordered him to surrender by February
10, 1998. The contempt order was filed February 20. Exs.10:103-7.
On or about November 13, 2000, Scientology filed an
an OSC re contempt, signed by Wilson and supported by a
of Wilson dated November 13, 2000, seeking to have Armstrong punished for
131 Internet postings he made in Canada, two talks in Florida, and a media
interview in Denmark. RApp.154-165. In the application and his
declaration, Wilson repeats the falsehoods he had used to obtain the earlier
contempt orders and the dismissal of Armstrong’s appeal: that Armstrong
had fraudulently transferred all of his assets RApp.157,162; that
Armstrong’s sending his declaration to Judge Whyte about Wilson’s
was a violation of Judge Thomas’ injunction RApp.157, 163; that
Armstrong fled California in response to the first contempt judgment and
moved out of California to avoid arrest RApp.157; that Armstrong testified
in deposition that he intended to ignore Judge Sohigian’s preliminary
injunction RApp.162. Wilson and Scientology also falsely stated: “There
was no appeal from the Injunction.” RApp.159.
November 13, 2000 application, Wilson and Scientology
again urged the Marin Court to punish Armstrong criminally.
Armstrong has willfully treated this Court's authority with
such callous disregard that he should be criminally sanctioned
by fine and imprisonment under Code of Civil Procedure §
Armstrong filed an
opposition to Scientology’s application for an
OSC dated January 9, 2001 supported by a declaration also dated January 9,
2001. In his declaration, Armstrong refuted Wilson’s and Scientology’s old
repeated false statements in their November 13, 2000 application and
declaration, refuted newly made false statements in their papers, and
emphatically rejected the notion that Judge Thomas’ injunction and
contempt orders are lawful. Exs.12:110-140.
On July 12, 2001, Marin Judge Vernon F. Smith, who had inherited
the case from Judge Thomas who had retired, signed an
order of contempt,
filed July 13, 2001, ruling that the injunction was valid and enforceable and
finding Armstrong in contempt of court, but not imposing a specific
punishment at that time. Exs.13:141-144.
On April 2, 2002 Scientology filed another
lawsuit in Marin
Superior Court, CV 021632, against Armstrong, Robert Minton and the
Lisa McPherson Trust, seeking $10,050,000 from Armstrong for 204
of Scientology’s “contract.” The 204 claimed “breaches”
included the 131 Internet postings identified in Scientology’s November 13,
2000 application for OSC, plus 73 “new” “breaches.” Exs.14:145.
Armstrong, then living in Germany, filed his answer
November 19, 2002.
On November 17, 2003, Scientology filed a motion for summary
judgment, claiming there was no triable issue of fact because Armstrong
had admitted committing the “breaches,” and seeking $50,000 for each
On March 9, 2004 Armstrong filed his opposition
to the summary
judgment motion, supported by his declaration
dated March 2, 2004.
RApp.256-299. Armstrong’s evidence in support of his opposition
included: Ex. A, his complaint
report executed February 16, 2004
(RApp.168-255) to the U.S. Department of Justice Civil Rights Division
identifying a number of Federal crimes being committed against him and
others by “beneficiaries” to the “contract” that Scientology
wants this Court
to enforce; Ex. B, L. Ron Hubbard’s policy letter and “religious scripture”
Tactics” (RApp.1-3) that Armstrong had studied inside Scientology,
which orders aggressive, criminal acts and “war” against Scientology's
"enemies" such as Armstrong;” Ex. D, excerpt
of Internet postings
(RApp.133-153) black PRing Armstrong made by individuals serving
Scientology’s interests; Ex. F, the decision
dated June 20, 1984 in
Scientology v. Armstrong, Los Angeles Superior Court case no. C 420153
(CT-A075027, 5948-5974); Ex. G, subpoena
(RApp.10-11) served on
Armstrong January 23, 1997 in the Ward case; Ex. H, Wilson's
(RApp.12) of January 24, 1997; Ex. I, Armstrong's declaration
57) dated January 26, 1997, sent to the judge in the Ward case; and
Armstrong’s resume (RApp.166,167)
On March 17, 2004, Scientology filed a motion to strike
evidence in support of his opposition to Scientology’s
summary judgment motion.
On March 23, 2004, Marin Superior Court
Judge Lynn Duryee
denied Scientology’s motion for summary judgment. RApp.300.
Scientology did not appeal.
On April 2, 2004 Judge Duryee conducted a hearing Scientology’s
motion to strike, and issued an
order denying the motion. RApp.301-303.
On April 9, 2004 the trial of Scientology’s complaint against
Armstrong proceeded, resulting in Judge Duryee’s judgment
Scientology $500,000 in liquidated damages, but rejecting Scientology’s
claim of $50,000 for each of the 131 or more “breaches” as unconscionable.
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.
Judge Duryee also
discharged the contempt punishment against
Armstrong ordered in 1997 and 1998 by Judge Thomas.
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.
Attorney Wilson then pleaded with the Court to sentence Armstrong
for the July 13, 2001 order of Judge Smith finding Armstrong in contempt
for 131 or more violations of the injunction but not imposing specific
Mr. Wilson: Right. So if I can take a third bite at the apple.
Sentence him on that one. Something.
Exs.16:356. Judge Duryee then
sentenced Armstrong, and deemed
the punishment served by Armstrong’s appearance in court.
The court: All right.
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 judgment that's been
rendered in this action and the jail time is deemed served by
your appearance in court here today.
On May 20, 2004 the Marin Court issued its Order Granting
Plaintiff’s Motion for
Judgment. Exs.18:361. On the same date, the Court
also issued an
Order Re Sentences for Contempt discharging the sentences
imposed by Judge Thomas, and deeming the sentence on Judge Smith’s
July 13, 2001 contempt order served by Armstrong’s appearance.
Scientology then appealed.
In its opening brief, signed by Wilson, Scientology twice
states as fact that Armstrong was convicted of “criminal contempt.”
This appeal is related to, and has been consolidated with,
Church of Scientology v. Superior Court, Case No. A107095.
That matter arises from the trial court's sua sponte vacation
and discharge of two sentences for criminal contempt
previously imposed by the Honorable Gary Thomas
Armstrong was twice convicted of criminal contempt in
proceedings before Judge Thomas for violating the permanent
injunction. Exs., Tabs 8 and 10. To avoid the jail sentences
imposed for his contempt convictions, Armstrong fled to
In its writ petition, also signed by Wilson, Scientology 3 times states
that Armstrong was guilty of “criminal contempt.”
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
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
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
Wilson cannot but know that the contempt orders in this case are not
for criminal contempt but for civil contempt. Wilson himself twice
the Marin Court in the applications for an OSC re contempt to refer
Scientology’s contempt allegations to the District Attorney for criminal
prosecution, which on both occasions the Court did not do. RApp.81,160.
The bench warrants that followed the contempt orders that Wilson calls
“criminal contempt” were prepared by him and state very clearly
matters are “civil.” Exs.9:101; Exs.11:108.
I. Law compels a trial
California Civil Code §1670.5, is the governing law in this case, and
(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 result.
(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.
There is no doubt whatsoever that Judge Duryee found the contract
or its clauses unconscionable. The essence of and reason for her judgment
is unconscionability. The reason she gave for her judgment, in 2004, as
unconscionability applied to the contract’s liquidated damages provision,
was that, in this case, liquidated damages to Scientology beyond what
Scientology had given Armstrong in settlement of his lawsuit and other
claims against Scientology, in 1986, would be unconscionable. In this case,
Scientology was seeking liquidated damages 20 times the monetary amount
given to Armstrong to settle his claims up to December 1986.4
Judge Duryee linked what she meant by unconscionability to the
liquidated damages’ unreasonableness.
The Court: Well, liquidated damages have to be reasonable. I
think it's unreasonable to go beyond the amount that was paid
to Mr. Armstrong.
Judge Duryee acted, as provided by CCC §1670.5, to limit the
application of Scientology’s unconscionable liquidated damages clause as
to avoid the unconscionable result of Armstrong being assessed monetary
damages for millions or trillions of dollars or more, lawsuit after lawsuit,
for the rest of his life.
Scientology obviously does not like Judge Duryee’s emphatic
judgment that its “contract,” by which it had hounded Armstrong around
the world, bankrupted him and threatened him for 18 years, is
unconscionable. Indeed, Scientology should be very concerned, because
Judge Duryee’s judgment not only ends Scientology’s drive for judicial
enforcement, but exposes all of what Scientology and its beneficiaries, such
as attorney Wilson, have done to enforce the unconscionable “contract” or
4 Because the distribution of the lump sum that Scientology gave to
attorney Michael Flynn in settlement of all of the Flynn-related cases
against Scientology, including Armstrong’s, was unknown to Scientology,
Armstrong’s position is that therefore the amount he was given by Flynn
out of that lump sum to settle with Scientology is irrelevant; i.e.,
Scientology’s “contract” to be lawful had to be lawful when signed if
Armstrong had been given $800,000 or $8. What Armstrong had actually
been given to dismiss his case against Scientology and release it and a host
of beneficiaries from all claims up to the date he signed was about
$515,000. Thus 20 times the benefit that was conferred to Armstrong is
$10,300,000, which is only five “breaches” more than what Scientology
was seeking in this case, $10,050,000. This sum is actually 19.515 times
what Armstrong received.
otherwise unconscionably shudder Armstrong into silence. But
Scientology is not going about undoing Judge Duryee’s judgment that its
“contract” is unconscionable in the way prescribed by law.
Since it appeared to Judge Duryee that the contract not only may be
unconscionable but is unconscionable, and Scientology desires to invalidate
that judgment of unconscionability, Scientology must avail itself of the
evidentiary hearing that it is to be afforded by CCC §1670.5. Scientology
must present evidence of the circumstances at the time the “contract”
made that demonstrate that its unconscionable clauses were not then
unconscionable. Armstrong must be afforded such an evidentiary hearing
to demonstrate that the unconscionable clauses that Judge Duryee found to
be unconscionable were indeed unconscionable at the time the “contract”
CCC §1670.5 requires that to challenge the judgment of
unconscionability Scientology must present evidence as to the commercial
setting at the time the “contract” was made, its purpose and effect. The
time when Judge Thomas, years later, signed his summary adjudication
orders finding the unconscionable “contract” “reasonable”
“enforceable” is not relevant to the determination of the reasonableness or
unconscionability of the “contract” at the time it was made, except as an
effect of the unconscionable “contract.” Obviously, to assist the Court in
determining the effect of Scientology’s unconscionable contract, there
exists now 18 years of evidence of that effect, which includes Judge
Thomas’ actions and orders enforcing that unconscionable “contract.”
Thus a later judgment of unconscionability as to the “contract”
must be an
automatic exception to the application of collateral estoppel and res judicata
to Judge Thomas’ judgment. Scientology, citing Hong v. Somerset, 161
Cal. App. 3d 111 (1984) admits as much.
Moreover, the reasonableness of a liquidated damages
provision is determined as of the date of the execution of the
contract, not at the time of the breach, and certainly not at the
time of a subsequent judgment finding breach.
Scientology is attempting to improperly avoid submitting to an
evidentiary hearing on the circumstances at the time the “contract”
made, which is Scientology’s “remedy” provided by law, by
Court to overrule the Marin Court’s judgment of unconscionability. This
Court cannot overrule the judgment of unconscionability, however, because
this Court is not the trier of fact as to the circumstances at the time the
“contract” was made, concerning which no evidence has yet been adduced
because there has been no hearing.
As afforded by CCC §1670.5, Armstrong himself requests and
hereby submits to an evidentiary hearing on the “contract’s” commercial
setting, purpose, and effect to aid the trial court in making any
determination that remains to be made as to the “contract’s”
unconscionability. From the day in 1986 when he was pressured and
deceived into signing Scientology’s unconscionable “contract” Armstrong
has considered that “contract” unconscionable. From the day in 1992 when
Scientology served on him its first lawsuit to enforce its unconscionable
“contract” Armstrong has sought an evidentiary hearing, indeed a trial, on
the circumstances at the time the “contract” was made in order to
demonstrate its unconscionability. From the days in 1995 when Judge
Thomas made his summary adjudication rulings denying Armstrong a trial
on the circumstances at the time the unconscionable “contract was made”
Armstrong has protested that the denial of the trial that he sought was
improper. From the day that this Court improperly dismissed Armstrong’s
appeal from Judge Thomas’ denial of the trial Armstrong sought Armstrong
has protested that improper dismissal. Judge Duryee’s unconscionability
judgment has proven Armstrong right, and CCC §1670.5 now gives him,
and Scientology, the evidentiary hearing, or trial, that he was previously
II. The Marin Court’s Judgment of Unconscionabilty is Reasoned
Armstrong was collaterally estopped to challenge the
liquidated damage clause's reasonableness and enforceability,
especially after the trial court rejected the defenses by which
Armstrong sought to raise such precluded issues.
AOB, 10. That assertion is arguable, but does not have to be argued
because it does not describe what happened at trial. Judge Duryee herself
challenged the reasonableness and enforceability of the liquidated damages
clause, and found that clause unconscionable.
Contrary to what Scientology would like this Court to believe, Judge
Duryee’s finding that Armstrong had no defenses, that his affirmative
defenses had all been lost to him by Judge Thomas’ grant of Scientology’s
summary adjudication motions, while she also found the “contract’s”
liquidated damages clause unconscionable, supports and reinforces her
unconscionability judgment. If Scientology’s “contract” is unconscionable,
which it has been adjudged to be and therefore must always have been, then
the earlier elimination of Armstrong’s defenses to the enforcement of the
unconscionable “contract,” by the “contract’s” enforcement, must be
unconscionably unconscionable. Unconscionability is itself, of course, an
Scientology acknowledges that Judge Duryee herself declared the
“contract” unconscionable because it called for punishment far beyond
what Armstrong received.
The trial court initiated the concept that CSI's judgment must
be limited to $800,000. Even the fervent imaginations of
Armstrong and his counsel did not conjure up such an
inappropriate argument. The issue was never briefed, and the
trial court gave itself no opportunity to reflect upon the
wisdom of its idea.
AOB, 17. Scientology is, however, wrong about Armstrong and his lawyer
not contemplating this argument. In truth, Armstrong’s fervent imagination
had envisioned the very absurdity that leads to the very obscene
unconscionability that Judge Duryee cannot but have observed in order to
arrive at her judgment. Armstrong provided testimony about the monetary
absurdity of the liquidated damages clause in his
declaration in support of
his opposition to Scientology’s summary judgment filed March 9, 2004.
Since Scientology has affirmed and insisted that virtually any
utterance by me that mentions Scientology or my thoughts
about Scientology or any of the entities comprising the
"beneficiaries" to the subject "contract is worth $50,000.00, it
is obvious that Scientology cheated me when it claimed it
purchased my right and ability to make such utterances. If my
Usenet post stating "I'll say $1,500,000. That's my figure."
[AApp.52:182] is worth $50,000.00, then "I'll say $1,500,001.
That's my figure." is also worth $50,000.00, as is "I'll say
$1,500,002. That's my figure." and "I'll say $1,500,003. That's
my figure." etc. I believe that I can generate utterances, orally
and by computer and other communication media, that would
have a value of trillions, or even quadrillions, or more dollars
a day. Accepting Scientology’s own monetary valuation of
my utterances, the organization cheated me out of quintillions
of dollars, or over a lifetime even sextillions of dollars, with
its cruelly unfair peanuts "settlement" "payment." For
Scientology to purchase my rights, ability and utterances that
the organization claims it purchased, it would have to pay me
what my potential utterances are worth, sextillions.
There is no doubt that Judge Duryee had read Armstrong’s March 2,
declaration, which contains testimony about this and other absurdities,
about Scientology’s impermissible and criminal deprivation of his
Constitutionally guaranteed rights and privileges, and about other
Scientology behavior that shocks the conscience. She had in fact read
Armstrong’s declaration twice, and immediately prior to trial, because
Scientology had moved to strike this very declaration, and she had studied
the declaration to arrive at her
denial of Scientology’s motion.
Although attorney Greene had not approached the unconscionability of
the liquidated damages clause precisely as Judge Duryee did,
imagination was also well aware that it is unconscionable.
In the instant case, there is serious unconscionability in the
procedural sense given the inequality of bargaining power
between Scientology and Armstrong, as discussed above and
set forth in greater detail; in Armstrong's separate statement.
What is most obvious is the substantive unconscionability. It
is clear that as Scientology seeks to have it enforced, the
agreement is one-sided: Scientology can slander Armstrong
and he must remain mute or get hit with a $50,000 liquidated
damage assessment: What is the possibl[e] justification for
such a one-sided agreement? If you listen to Scientology, it is
because Armstrong is a liar and fomenter of anti-Scientology
litigation. But if what Scientology says is true, you must
throw out the decision of Judge Breckenridge which has been
affirmed on appeal in a published decision. That makes no
sense. It makes no sense to accept the characterization of an
organization that has a long recorded history of abuse of
individuals and the legal system and to disregard a well-
respected superior court judge.
Armstrong’s Defendant's Opposition to Motion for Summary Adjudication
on the Thirteenth, Sixteenth, Seventeenth, and Nineteenth Causes of
Action, § IV. “The Liquidated Damages Provisions are Unconscionable,”
filed September 18, 1995, CT-A075027, 8248-8250
Any idea that Scientology is conveying that Judge Duryee’s
judgment of unconscionability was out of the blue is baseless. Her
conscience must have been shocked, and she could not help but be troubled
by the light she must reflect with that judgment onto her former colleague
in the Marin Court. That Judge Thomas had adjudged the “contract”
reasonable and enforceable, and conscionable, and had used his authority to
enforce it, when, no matter what Armstrong had done, was doing, or would
do, the “contract” is patently unconscionable, would grieve any
a heart. The “contract” must have been to Judge Duryee extremely
unconscionable given what she had to confront and transcend in order to
render her judgment: the principles of res judicata and collateral estoppel,
Scientology, and judging her fellow Marin County Judge, who had abetted
the unconscionable almost a decade ago, by denying Armstrong a fair trial
in which he could present his defenses, including unconscionability. Thus
Judge Duryee’s unconscionability judgment is profound, and rendered by
her only after considerable thought, and after a search of her conscience
that Scientology’s “contract” had shocked.
Obviously even before the trial Judge Duryee had pondered the
unconscionability of Scientology’s seeking in “damages” many times more
than what Armstrong had received to dismiss his claims. She asked
Scientology attorney Wilson about it even before she asked for opening
The court: So here's my question. The contract between the
parties was based on consideration of the church paying
$800,000 to Mr. Armstrong. So now we have subsequent
actions where Mr. Armstrong continues to have monetary
liquidated damages imposed against him for his violation of
the settlement agreement. [ ] So what happens when we
reach the point that he has an obligation to pay the Church
more than what he received? What about that? How does that
affect the rights between the parties?
Exs.16: 309 Wilson’s answer: “Doesn’t affect it at all.”
Later in the trial, attorney Greene responded to the Court’s question.
to your question about what happens when he accumulates
enough liquidated damages hits to equal the consideration
that he got, if that -- if there was no washout the injustice to
Armstrong would be forever. Scientology could say whatever
they want about him. He would be effectively gagged and
tied. And if he refused to be gagged and tied, and if he made
the choices to speak out and tell the truth as he knew it, the
range of punishment for doing that would be limitless. That's
just simply unfair and unjust. And based on the injustice
exception to the rule of res judicata we would submit that this
proceeding is worthy of a full hearing.
Exs.16:314,315 Judge Duryee agreed with Greene.
Also early in the proceeding, the Court obtained from Wilson two
very important admissions that helped her to arrive at her unconscionability
judgment: that Scientology’s punishment of Armstrong with its “contract”
would go on forever; and that other key “contractual” conditions relating to
the liquidated damages clause were also completely one-sided.
Mr. Wilson: [Armstrong] bargained for the liquidated
provision that provided for $50,000 for each breach. That was
in the nature of incentive for him not to breach.
The Court: So your position is once he made that deal he
forever gave up his rights to speech against the church?
Mr. Wilson: He did.
The agreement says that Armstrong can't say anything about
the church and it doesn't say that the church can't say
anything about Armstrong.
Greene then articulated the effect of such complete one-
sidedness in Scientology’s “contract.”
what we have is Scientology attempting to employ a
completely one-sided contract to be able to pound on
Armstrong in court in the furtherance of their fair game
policy that says that enemies of Scientology can be sued, lied
to, tricked, or otherwise destroyed by Scientology without
any adverse consequences.
After hearing opening statements on Scientology’s motion to
preclude Armstrong from introducing any evidence on his defenses, Judge
Duryee called a recess to study the documents submitted in the matter.
I'm going to take this motion under submission. I'm going to
take a closer look at some of the documents.
So don't go anywhere. I'm just going to go to my chambers
and read some of these materials closer.
When she returned to the bench, Judge Duryee granted
Scientology’s motion for a directed verdict ruling that Armstrong’s
defenses had been previously litigated so he had none. She also said
the court has listened to the opening statements of the
defense. [Exs.16:328-344] 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.
5 The horrible things that Scientology and the individuals serving its
purposes have done to and published about Armstrong also would shock
any decent person’s conscience. See, e.g., excerpted Usenet postings, Ex.
D to Armstrong’s March 2, 2004 declaration. RApp.133-153: “fled the
United States because there is a warrant out for his arrest” RApp.134; “had
himself photographed by a newspaper naked” RApp.134;
RApp.134; “a liar. He never
worked with [Hubbard]”
RApp.135; “Gerry Armstrong is one big fraud and
RApp. 135; “He took those documents in secret cooperation
with criminal infiltrators of Scientology that forged the documents;”
RApp.135; “one sick, deranged, twisted fuck like you”
RApp.138; “Once Gerry has had his fill using Caroline
[Armstrong’s wife], he’ll unceremoniously dump her”
“operating like a brainwashed cultist”
RApp.139; “Mentally unsound
individuals like Gerry Armstrong”
RApp.140; “you’re nothing more than a
RApp.142; “[Armstrong’s wife Caroline will] be
viewed as yesterday’s rubbish by the scam artist”
Judge Duryee then declared Scientology’s effort to punish
Armstrong beyond what the benefit was that was conferred on him
unconscionable, and awarded Scientology $500,000 in liquidated damages.
Since Scientology had been awarded $300,000 in liquidated damages by
Judge Thomas in his judgment, Judge Duryee’s award gave Scientology a
total of $800,000 in judgments, the amount it claimed to have paid
Armstrong to settle his lawsuit and other claims against Scientology and the
“contract’s” other beneficiaries.
Wilson stated during the trial that Scientology just wanted its money
back, and would rescind the “contract” if it got its money.
I can tell you that if Mr. Armstrong today would like to pay
the money back we'll rescind the agreement. I mean this is not
about the church of Scientology trying to be punitive. This is
about the church of Scientology trying not to be a victim.
Judge Duryee questioned Wilson about the apparent contradiction in the damages
Scientology was seeking.
The Court: You're asking for monetary damages for 131
postings and you're also saying that if Mr. Armstrong wants
to give the church the money back the church will rescind the
Mr. Wilson: That's right.
When Wilson protested Judge Duryee’s limiting liquidated damages
to what was conferred on Armstrong, she again questioned Wilson about
Scientology’s willingness to rescind its “contract,” and
monetary judgment with rescission.
Armstrong is a cad and a bounder who can not be relied on for
befitting a decent human being”
RApp.146; “a fucking liar”
thin-skinned paranoid egomaniac with zero sense of humor”
Armstrong’s logic doesn’t meet any of the minimal standards to so
The Court: But you told me that the church was willing to discharge the --
Mr. Wilson: We would rescind the agreement.
The Court: Rescind the agreement if he gave you the money
back. The courts are not responsible for collection. All we can
do is issue orders. But given the church's position I think
returning to the church the benefits that were conferred to Mr.
Armstrong reaches the same result.
In Scientology’s opening brief there is no mention of Wilson’s
representation to the trial court that Scientology only wanted its money
back and would rescind its unconscionable contract if it got the money it
As Scientology says in its writ petition, following the April 9, 2004
trial, Wilson and Greene submitted to the Court different proposed orders
on the trial rulings. Petition, 12. On May 20, 2004, the Court issued its
own Order Granting Plaintiff’s Motion for Judgment. Judge Duryee thus
had 40 days to reflect upon the wisdom of her judgment of
unconscionability in this case before she confirmed it in writing.
Nevertheless, she did not waiver in the certainty of her judgment.
Mr. Armstrong received a benefit under the settlement
agreement of $800,000. It would be unconscionable to punish
him beyond what the benefit was that was conferred to him.
Armstrong was previously sanctioned in the sum of $300,000.
Judgment is therefore entered for plaintiff, on the admitted
violations, of $500,000.
The following appears to be a very good statement on
unconscionability as the term is used in contract law:
Under California law, unconscionability has both a
procedural and substantive element: the procedural element of
unconscionability focuses on oppression, which arises from
an inequality of bargaining power that results in no real
negotiation and an absence of meaningful choice, or surprise,
which involves the extent to which the supposedly agreed-
upon terms are hidden in a prolix printed form drafted by the
party seeking to enforce them, while the substantive element
of unconscionability traditionally involves contract terms that
are so one-sided as to shock the conscience or that impose
harsh or oppressive terms.
Ting v. AT & T, N.D.Cal.2002, 182 F.Supp.2d 902, affirmed in part,
reversed in part 319 F.3d 1126, certiorari denied 124 S.Ct. 53, 157
L.Ed.2d 24, 2003 WL 1988529.
California law also addresses the relationship of procedural to
substantive elements of unconscionability:
Although both procedural and substantive unconscionability
must be present before a contract or contract provision is
rendered unenforceable on grounds of unconscionability,
those elements are reviewed in tandem such that the greater
the degree of substantive unconscionability, the less the
degree of procedural unconscionability that is required to
annul the contract or clause.
Kinney v. United HealthCare Services, Inc. (App. 4 Dist. 1999) 83
Cal.Rptr.2d 348, 70 Cal.App.4th 1322.
Scientology might argue that because Armstrong was prevented by
res judicata from putting on his defenses, and therefore prevented from
presenting evidence as to why he signed the “contract,” Judge Duryee could
not know anything about oppression, Scientology’s and Armstrong’s
relative bargaining power, no negotiation, or no meaningful choice; so the
necessary procedural unconscionability could not be present. But Judge
Duryee had listened to Greene, and she had read Armstrong’s March 2,
declaration in opposition to Scientology’s
summary judgment motion,
which provides more than sufficient procedural unconscionability, to go
with the obvious substantive unconscionability that shocked her
conscience, to support her conclusion and judgment of unconscionability.
She knew what Armstrong was stating about no real negotiations,
and knew he had been stating it for almost 15 years.
there was absolutely no negotiation by me with Scientology,
or even via Flynn with Scientology, regarding liquidated
damages and no discussion whatsoever regarding their
reasonableness. It was completely understood by me at the
time of the settlement that the liquidated damages condition
and amount were utterly unreasonable. I am certain that they
are just as unreasonable today, and, I believe, even more
unreasonable given the now obvious conclusion that this
liquidated damages condition, its enforcement by Judge
Thomas, and every way in which it has been used by
Scientology against me and against others, constitute acts in
furtherance of serious civil rights crimes.
Declaration, March 2, 2004, RApp.264.
Armstrong also described the oppression:
At the time of the December 1986 "settlement," my attorney
Michael Flynn told me that if I didn’t sign Scientology’s
"contract," Scientology would continue to Fair Game me,
Flynn and his family, the other Scientology victims that Flynn
represented, and Fair Game anyone else Scientology wanted.
I knew very well what Fair Game was, and understood very
well the terrible threat that Scientology was making. I have
described this duress in my sworn Complaint Report, Ex. A,
p. 37, para. 123
The burden of having to sign Scientology’s
onerous, indeed impossible, "contract" in order
to have the organization stop its fair game
attacks on my attorney and his family, on his
clients, on my friends, on the rest of humanity,
and on myself, was unbearable.
Armstrong also provided his knowledge of the bargaining power of
Scientology in relation to his own bargaining power.
At the time of the "settlement," Scientology was a billion
dollar enterprise, whereas I had no money whatsoever and no
bargaining power. Scientology had hundreds of lawyers. My
lawyer had been compromised by Scientology to the point
that he was pressuring me on Scientology’s behalf to sign the
"contract" to have Fair Game end against him and his family,
assuring me that Scientology would end Fair Game forever if
signed, and also insisting that the liquidated damages
condition was not worth the paper it’s printed on.
Even if Judge Duryee had not known any of the facts about the
circumstances when the “contract” was made, its terms are so one-sided as
to shock the conscience, and harsh, and oppressive. It is obvious that she
found the liquidated damages clause oppressive because she acted to limit
the application of that clause. The clause that Scientology wants this Court
to enforce, by which Scientology could collect astronomical sums from
Armstrong for the rest of his life, and chase him around the galaxy, is
clearly oppressive, and the result of enforcement would be unconscionable.
zeroed in on the “contract’s” utter one-sidedness, and
declared it unilateral just before rendering her judgment. Scientology, and
all the beneficiaries including attorney Wilson, can say all the horrible
things they want about Armstrong, and Armstrong can say nothing about
any of them. Scientology gets $50,000 from Armstrong per utterance,
which Scientology’s attacks precipitate, and Armstrong gets nothing from
Scientology or the beneficiaries when they run global black PR campaigns
against him. Scientology also says that there is no limit to how many
utterances it can collect for, and enforcement of the liquidated damages
clause would continue until Armstrong’s death. Acting oblivious to their
“contract’s” flaming unconscionability, Scientology was suing Armstrong
in the Marin Court for ten million dollars for two hundred utterances.
the trial court's conclusion that it would be "unconscionable"
for CSI to recover cumulative damages an amount in excess
of what it paid Armstrong under the terms of the contract is
without legal support or merit. A liquidated damages
provision that has already been adjudicated as reasonable and
enforceable cannot become unconscionable just because one
party to the contract decides to commit several hundred
CCC §3359 completely supports the trial court’s conclusion.
Damages must, in all cases, be reasonable, and where an
obligation of any kind appears to create a right to
unconscionable and grossly oppressive damages, contrary to
substantial justice, no more than reasonable damages can be
Armstrong does not accept that any damages are reasonable. It appeared to
Judge Duryee, however, that the “contract” created a “right” for
Scientology to unconscionable and grossly oppressive damages, in the
millions, billions or trillions of dollars, and thus, applying CCC §3359, she
limited damages to the “reasonable” amount of what Armstrong in 1986
received to dismiss his claims.
The “contract’s” liquidated damages clause did not become
unconscionable because Armstrong decided to commit several hundred, or
hundreds of thousands of breaches. The clause was unconscionable when
the “contract” was made.
III. The Liquidated Damages Are, But May Not Lawfully Be,
Wilson asserts that Armstrong did not consider Scientology’s
liquidated damages awards against him punishment.
Mr. Wilson: [Armstrong] needs to be punished for that or
else what you're saying is that anybody can do it.
The Court: Some people might consider a $800,000 judgment
against them to be punishment.
Mr. Wilson: Mr. Armstrong doesn't. He told you he doesn't.
He told you he's going to keep doing it.
This is false, and proven false by everything Armstrong
has said or written about Scientology’s “religious” persecution and
punishment of him from the day he was compelled to sign the “contract.”
The monetary judgments Scientology obtained are punishment, the jail
sentences and fines are punishment, forcing Armstrong into bankruptcy is
punishment, and the “contract’s” clauses that he cannot but breach are
punishment. That Scientology’s punishing of Armstrong has not resulted in
his being silenced about Scientology and its punishment is no evidence
whatsoever that the punishment is not punishment.
In a wicked twist of logic, Scientology argues that because the law
does not permit liquidated damages to be punishment, the punishment that
its liquidated damages clause subjects Armstrong 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.
Scientology is correct that liquidated damages cannot be
punishment. That Scientology’s liquidated damages clause acts as
punishment means it cannot be a lawfully enforceable contractual term. It
cannot possibly mean, as Scientology insists, that because the liquidated
damages clause is a liquidated damages clause the punishment it inflicts
cannot be punishment because the law does not permit liquidated damages
to be punishment.
Scientology’s argument that its liquidated damages provision cannot
now be unconscionable because Judge Thomas said in 1995 that it was
“reasonable” and “enforceable” is equally spurious.
The import of the
liquidated damages provision now being adjudged unconscionable is that
Judge Thomas’ findings of reasonableness and enforceability were
erroneous. It would be ridiculous and result in a terribly unconscionable
result if unconscionable contract terms that shocked a judge’s conscience
with their one-sidedness and oppressiveness must nevertheless be enforced
because some other judge, whose conscience was not shocked by the one-
sidedness and oppressiveness, earlier ruled the terms were reasonable and
enforceable. Scientology in fact may not use Judge Thomas’ 1995
judgment to “prove” the “contract’s” conscionability because
unconscionability is determined from evidence as to the “contract’s”
commercial setting, purpose and effect at the time the “contract” was made,
Supporting Judge Duryee’s judgment, Los Angeles Superior Court
Judge Geernaert, who had inherited the first Scientology v. Armstrong case,
C 420153, after Judge Breckenridge retired, and to whom Scientology went
in 1991 to enforce its “contract,” before going to Marin County, obviously
had his conscience shocked, and stated in effect that Judge Breckenridge’s
conscience would also have been shocked by Scientology’s “contract.”
So my belief is Judge Breckenridge, being a very careful
judge....if he had been presented that whole agreement and if
he had been asked to order its performance, he would have
dug his feet in because that is one .... I'll say one of the most
ambiguous, one-sided agreements I have ever read. And I
would not have ordered the enforcement of hardly any of the
terms if I had been asked to, even on the threat that, okay the
case is not settled.
I know we like to settle cases. But we don't like to settle cases
and, in effect, prostrate the court system into making an order
which is not fair or in the public interest.
of 12/23/91 hearing, CT-A075027, 7700) Judge Duryee’s 2004
judgment of unconscionability is confirmation of Judge Geernaert’s 1991
ruling, and a strong indication that Judge Thomas’ 1995 order, as Judge
Geernaert warned, had prostrated the court system, was not fair, and not in
the public interest.
Scientology as much as admits the liquidated damages it seeks are
punishment in its writ petition.
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
11. Armstrong is even more utterly incapable of paying
$10,050,000. But Scientology doesn’t want the money; it wants
punishment. Armstrong may be able to discharge the $500,000 in
bankruptcy, or the $10,050,000. But if liquidated damages are not limited,
Scientology can keep filing lawsuits, on which there is no limit, and
Armstrong, who cannot but breach Scientology’s “contract,”
discharge any monetary judgments by bankruptcy, because bankruptcy law
permits him to seek bankruptcy protection only every seven years.
Scientology would thus achieve the unlawful purpose of its liquidated
damages of punishing Armstrong into financial obliteration.
Armstrong’s arguments relating to unclean hands, free religious
exercise, criminal deprivation of rights, and arithmetic absurdities are
presented in his opposition to Scientology’s writ petition in Case No.
A107095 and incorporated herein by reference.
The terms in its “contract” that Scientology seeks to enforce have
been adjudged unconscionable. Scientology’s legal remedy is to submit to
a hearing prescribed by CCC §1670.5. Armstrong also requests such a
hearing for himself, which he is to be afforded.
Or, because of Scientology’s unclean hands herein, and because of
the grotesque unconscionability of its “contractual” terms, and their clear
violations of public policy, Armstrong’s civil rights, and U.S. criminal
statutes, this Court has the authority to act to declare those terms unlawful
and to prevent Scientology from any further judicial actions to enforce
Dated: December 1, 2004
#1-45950 Alexander Avenue
Chilliwack, B.C. V2P 1L5
CERTIFICATE OF LENGTH
Pursuant to Rule 14(c)(1) of the California Rules of Court,
respondent Gerry Armstrong certifies that the number of words in this brief,
according to the word count of the computer program used to prepare the
brief, is 13,999 words.
PROOF OF SERVICE
I am employed
in the Province of British Columbia, Canada. I am over
the age of eighteen years and am not a party to the above-entitled action. My
business address is #1-45950 Alexander Avenue, Chilliwack, B.C. V2P 1L5.
December 1, 2004 I served the following documents:
RESPONDENT’S BRIEF and
RESPONDENT’S APPENDIX, VOLS, I, II, III & IV
on the following persons on the date set forth below, by placing true copies
thereof enclosed in sealed envelopes addressed as stated on the service list, as
|XX By Mail
||I caused such envelope with postage thereon fully
prepaid to be placed in the Canadian mail at
Chilliwack, B.C., Canada.
Andrew H. Wilson, Esq.
Wilson Campilongo LLP
475 Gate 5 Road, Suite 212
Sausalito, CA 94965-1475
Clerk of the Superior Court
Marin County Superior Court
3501 Civic Center Drive
San Rafael, CA 94913
(Hon. Lynn Duryee)
California Supreme Court (5 copies of brief)
350 McAllister Street
San Francisco, CA 94102
I declare under
penalty of perjury under the laws of Canada, the United
States, and the State of California that the above is true and correct.
Executed on December 1, 2004 at Chilliwack, B.C., Canada