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Note: The notation “Not to Be Published” means that this opinion, which follows, is not to be published in official reports and may not be cited to, or relied upon. Appellate opinions that are published in official reports may be cited to, and act as precedent. The unpublished opinion may be cited to or relied upon when it is relevant under the doctrines of law of the case, res judicata, or collateral estoppel, or when it is relevant to a criminal proceeding because it states reasons for a decision affecting the same defendant or respondent.
California Rules of Court, No. 977 http://www.courtinfo.ca.gov/rules/titlethree/title3-61.htm

This opinion, while not usable in most legal proceedings involving Scientology, is very instructive regarding the cult’s litigation fair game practices in the 1990’s, specifically its criminal effort to deny me the litigant's rights and due process guaranteed by the U.S. Constitution and laws, and can and should be cited to and used by those of us who oppose the cult in other arenas.














Plaintiffs and Appellants,


JOSEPH A. YANNY, et al.,

Defendants and Respondents.


(Super.Ct.No. BC033035)


JAN 11 1994
                    Deputy Clerk

APPEAL from a judgment of the Superior Court of Los

Angeles County. Raymond Cardenas, Judge. Affirmed.

Rabinowitz, Boudin, Standard, Krinsky & Lieberman,

Eric M. Lieberman, and William T. Drescher for Plaintiffs and


Lewis, D'Amato, Brisbois & Bisgaard, David B. Parker,

Graham E. Berry, Jayesh Patel; Joseph A. Yanny, in pro per,

for Defendants and Respondents.



Religious Technology Center, Church of Scientology

International, and Church of Scientology of California

(collectively, "Scientology") appeal from a judgment of

dismissal which followed the granting without leave to amend of

the motion of defendant Joseph Yanny [1] for judgment on the


We find that the judgment was properly granted, and

we shall therefore affirm it.


From approximately mid-1983 until the end of 1987,

Yanny represented Scientology as its counsel in numerous legal

matters. He was initially retained as Scientology's counsel by

Vicki Aznaran, who was at the time President of the Religious

Technology Center.

Shortly after Yanny ceased to represent Scientology,

Aznaran and her husband, Richard Aznaran, a former chief of

security for Scientology, told Yanny that Scientology had

subjected them to extraordinary abuse and asked him to help

them find an attorney who could represent them in a lawsuit

against Scientology. The Aznarans stayed with Yanny at his

home for about two weeks, and he referred them to various

lawyers. On April 1, 1988, the Aznarans filed an action

against Scientology in the United States Court for the Central

District of California.

In response, on June 23, 1988, Scientology filed an

action against Yanny and others in the Los Angeles County

[1] Scientology's complaint named Yanny personally and
also named Joseph H. Yanny, a Professional Law Corporation.



Superior Court ("Yanny I"), seeking an injunction and damages

for breach of fiduciary duty, breach of contract, tortious

breach of the covenant of good faith and fair dealing,

constructive fraud, fraud, intentional interference with

contract, civil conspiracy and conversion. Yanny cross-

complained for unpaid legal fees.

The jury in Yanny I awarded Yanny $154,000, and in

bifurcated proceedings, the court found that: (1) Yanny and

other lawyers named in Scientology's complaint had not

conspired to breach Yanny's duties to Scientology; and

(2) Yanny had not breached such duties. The court denied

injunctive relief finding that: (1) Scientology had not

established by a preponderance of the evidence that breaches of

duty by Yanny were reasonably probable in the future; and

(2) the court had no jurisdiction to regulate the practice of

law in the federal courts or in other state courts. The court

concluded Scientology would have to challenge any allegedly

improper representation of its adversaries by Yanny on a

case-by-case basis in any court where such representation might

occur. [2]

On July 1, 1991, Yanny substituted in as attorney of

record for the Aznarans' former attorney in their federal

action against Scientology. On July 3, Scientology filed a

motion in the federal court to disqualify Yanny from appearing

[2] Scientology appealed that judgment. Its appeal
was dismissed by this division on January 8, 1993 pursuant to
rule 10, subdivision (c), Rules of Court, for failure to file
the record on appeal within the time allowed.



for the Aznarans in that action. On July 18, it filed the

present action in the superior court for damages for breach of

fiduciary duty and a permanent injunction enjoining Yanny from

"violating the fiduciary duties he owed to [Scientology] as a

result of their former attorney-client relationship." In the

superior court complaint, Scientology also sought damages and

an injunction enjoining Yanny from violating duties owed to

Scientology by representing one Gerald Armstrong, whom

Scientology alleged Yanny was representing in matters adverse

to Scientology.[3] Scientology alleged that Yanny possessed

confidential inforrnation which he obtained during his

representation of Scientology and that he "traded on" that

information in representing Scientology's adversaries,

Armstrong and the Aznarans.

Scientology's motion to disqualify Yanny in the

Aznarans' federal action was granted shortly after it was

filed, on July 24, 1991. In the superior court action, after

resisting discovery requests by Yanny, which were aimed at

identifying confidential information which had been disclosed

to Armstrong and the Aznarans, Scientology stipulated that it

"[did] not base any claim in this action on any alleged

disclosure of . . . confidences to plaintiffs' adversaries, and

[3] A lawsuit between Armstrong and Scientology came
before this court, and we filed an opinion in that case, Church
of Scientology v. Armstrong (1991) 232 Cal.App.3d 1060, on July
29, 1991, shortly after the filing of Scientology's complaint
against Yanny. Yanny did not appear as Armstrong's counsel of
record in that case, at least not on appeal. However, it
appears he may have filed a brief as amicus curiae at some
point in the proceedings.



that such [was] not, and [would] not at trial be, an issue in

this case." Based upon this stipulation Yanny filed a motion

for judgment on the pleadings.

The court granted the motion for judgment on the

pleadings, concluding that Scientology could not maintain a

cause of action for Yanny's alleged breach of fiduciary duties

without pleading and proving an injury caused by such

breach--without alleging, that is, an actual disclosure of

Scientology's confidences to its adversaries. A subsequent

motion for reconsideration of the court's ruling on the motion

for judgment on the pleadings, or in the alternative, for leave

to amend its complaint to allege actual disclosures of

confidences, was denied on June 15, 1992. This timely appeal



Scientology contends the trial court erred in: (1)

holding it was not entitled to recover damages for Yanny's

breach of fiduciary duty; (2) denying a permanent injunction

against further breaches of such duty; (3) denying Scientology

leave to amend its complaint.


1. Standard of Review

A motion for judgment on the pleadings is the

equivalent of a general demurrer. (Columbia Casualty Co. v.

Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468.)



Accordingly, we review the trial court's grant of such a motion

under the same standard as we would a judgment after the

sustaining of a demurrer. (Hughes v. Western MacArthur Co.

(1987) 192 Cal.App.3d 951, 954; Palmer v. City of Ojai (1986)

178 Cal.App.3d 280, 290.) Both motions test whether the

allegations of the pleading under attack, if true, support the

pleader's cause of action. (Columbia Casualty Co. v.

Northwestern Nat. Ins. Co., supra, 231 Cal.App.3d at p. 468.)

In making this determination, a court generally looks

only to the face of the pleading, presumes all properly alleged

facts to be true, and determines whether these facts constitute

a cause of action. However, in appropriate circumstances, the

court may also consider matters subject to judicial notice.

(Hughes v. Western MacArthur Co., supra, 192 Cal.App.3d at p.

955, and cases cited therein.)

Like a judgment based upon an order sustaining a

demurrer, a judgment on the pleadings must be affirmed if any

one of the several grounds of the motion is correct. (Hughes

v. Western MacArthur Co., supra, 192 Cal.App.3d at p. 954;

Longshore v. County of Ventura (1979) 25 Cal.3d 14, 21.) As

with any ruling, a trial court's order granting judgment on the

pleadings will be sustained if correct on any theory.

(D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19;

Johnson v. Berkofsky-Barret Productions, Inc. (1989) 211

Cal.App.3d 1067, 1071.)



2. Scientology Was Not Entitled To Recover Damages
Against Yanny Without Pleading and Proving an
Actual Disclosure of Confidences.

An attorney's breach of the ethical duties of good

faith and fidelity, which are owed by an attorney to his or her

client, amounts to legal malpractice and is actionable.

(Lysic v. Walcom (1968) 258 Cal.App.2d 136, 149; Ivy v.

Pacific Automobile Ins. Co. (1958) 156 Cal.App.2d 652, 663; see

generally Developments in the Law: Conflicts of Interest in the

Legal Profession (1981) 94 Harv.L. Rev. 1244, 1486-1496.)

However, like any other action for damages, a claim for breach

of an attorney's fiduciary duty has minimum pleading

requirements, namely, duty, breach, causation and damages. The

absence of any one of these elements defeats the cause of


In particular, for a former client to plead a cause of

action against its former attorney for damages for breach of

the attorney's duties of loyalty and confidentiality, the

client not only must show the existence and breach of a

fiduciary duty, but also must show injury proximately caused by

such breach. (Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101;

Stockton Theatres, Inc. v. Palermo (1953) 121 Cal.App.2d 616,

625-627.) Yanny contends, in effect, that Scientology fails to

state a cause of action against Yanny, because the allegations

of its complaint do not establish causation or injury. We




Scientology is simply incorrect in contending that it

could establish a cause of action for breach of fiduciary

duties by showing only that a substantial relationship existed

between Yanny's prior representation of Scientology and his

current representation of its adversaries. It is indeed

established beyond all possible dispute that a former client

can successfully move to disqualify its former attorney from

representing the former client's adversary on a matter in which

the attorney has obtained confidential information; actual

possession of confidential information by the attorney need not

be shown, but is presumed if the client merely establishes that

there is a substantial relationship between the former and the

current representation. (People ex rel Deukmejian v. Brown

(1981) 29 Cal.3d 150, 156-157; H.F. Ahmanson & Co. v. Salomon

Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1452-1453; Global

Van Lines, Inc. v. Superior Court (1983) 144 Cal.App.3d 483,

487-488.)[4] Disqualification motions exist to enforce the

duties of an attorney, as articulated in Business and

Professions Code section 6068, subdivision (e) and rule 3-310,

subd. (d) of the Rules of Professional Conduct for attorneys,


[4] See also, e.g., In re Complex Asbestos Litigation
(1991) 232 Cal.App.3d 572, 587; Henrikson v. Great American
Savings & Loan
(1992) 11 Cal.App.4th 109, 113-114; Truck Ins.
v. Fireman's Fund Ins. Co. (1992) 6 Cal.App.4th 1050,
1056; Rosenfeld Construction Co. v. Superior Court (1991) 235
Cal.App.3d 566, 575; Western Continental Operating Co. v.
Natural Gas Corp.
(1989) 212 Cal.App.3d 752, 758-759; River
West, Inc.
v. Nickel (1987) 188 Cal.App.3d 1297, 1302-1303;
Elliott v. McFarland Unified School District (1985) 165
Cal.App.3d 562, 569, fn. 6; Grove v. Grove Valve & Regulator
Co. (1963) 213 Cal.App.2d 646, 652.



to preserve client confidences and to refuse employment adverse

to a former client in matters on which the attorney has

received confidential information. [5]

The "substantial relationship" rule, which governs

disqualification motions, is a "rule by necessity." (Global

Van Lines, Inc. v. Superior Court, supra, 144 Cal.App.3d at

p. 489; Western Continental Operating Co. v. Natural Gas Corp.,

supra, 212 Cal.App.3d at p. 759.) It exists because a former

client cannot prove what is in the mind of the attorney, nor

should the attorney have to "engage in a subtle evaluation of

the extent to which he acquired relevant information in the

first representation and of the actual use of that knowledge

and information in the subsequent representation." (Global Van

Lines, Inc. v. Superior Court, supra, 144 Cal.App.3d at p. 489,

quoting from Developments in the Law: Conflicts of Interest in

the Legal Profession, supra, 95 Harv. L. Rev. at p. 1318.)

It does not follow, however, that an action for

damages will lie against a former attorney, where the former

client merely shows a substantial relationship between the

     [5] Bus. & Prof. Code, § 6068, in relevant part,
provides: "It is the duty of an attorney to do all of the
following: . . . (¶) (e) To maintain inviolate the confidence,
and at every peril to himself or herself to preserve the
secrets, of his or her client . . . ."

     Rule 3-110, subd. (d), Rules of Professional Conduct,
substantially embodies the provisions of former rule 4-101 and
rule 5-101 which preceded rule 4-101. Rule 3-110, subd. (d),
provides: "A member shall not accept employment adverse to a
client or former client where, by reason of the representation
of the client or former client, the member has obtained
confidential information material to the employment except with
the informed written consent of the client or former client."



attorney's former and current representation and does not

allege or show that the attorney actually possessed, disclosed

or used confidential information. Scientology cites no binding

or persuasive authority for the proposition that damages are or

should be recoverable under such circumstances, and we can

imagine no reason in policy to allow such recovery.

We are unconvinced by Scientology's claim that damages must

be presumed in cases of an attorney's breach of fiduciary duty,

just as they are presumed in cases of defamation per se.

It is provided by statute that damages may be presumed in cases

of libel per se. (Civ. Code, §§ 45a, 46, 48a.) No statute,

and as we have observed, no judicial authority, provides for

presumed damages for an attorney's breach of confidence. In

addition, damages are presumed in defamation cases only where

it is established that the defendant did indeed publish a

statement, and the statement was of a kind which, on its face,

has a natural tendency to injure a person's reputation. (Civ.

Code, §§ 45a, 46; Slaughter v. Friedman (1982) 32 Cal.3d 149,

153.) Scientology would have the law go farther in cases of an

attorney's breach of confidence and presume not only damage

from the disclosure or use of a former client's confidences,

but also the disclosure or use itself.

In order to prevent such disclosures or uses, the

courts have found it necessary to disqualify an attorney from

representing a former client's adversary, if the new



representation bears a substantial relationship to the former

one. However, where the former client claims the damage

inherently threatened by any adverse representation has already

occurred and seeks a money recovery for it, we fail to see any

reason why the former client should not be required, as is any

plaintiff in an action for damages, to identify the injury and

establish that the defendant attorney's breach caused it. [6]

Scientology claims, however, that it would be

paradoxical to require a former client to reveal the very

confidences which are threatened by its former attorney's

defection. Such a requirement clearly would be both

paradoxical and improper in the context of a disqualification

motion. (Cf. Woods v. Superior Court (1983) 149 Cal.App.3d

931, 934.) However, it is neither improper nor paradoxical in

the context of an action for damages. If disclosure or use of

the confidences is merely threatened, the plaintiff's proper

remedy is a motion to disqualify the attorney from representing

the plaintiff's adversary. If the confidences have already

been revealed or used, the damage has been done. That, indeed,

is the very damage which gives rise to the plaintiff's right of

[6] Scientology is, of course, correct in arguing that
nominal damages are appropriate where a plaintiff establishes a
mere technical violation of a right, and that nominal damages
and punitive damages may be recovered where the damage is
substantial, but the amount is not susceptible of precise
proof. (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406;
Avina v. Spurlock (1972) 28 Cal.App.3d 1086,1088.) But this
does not mean that even nominal damages can be recovered where
the plaintiff does not plead and prove an actual, if
"technical," violation of a right, as opposed to showing the
mere existence of circumstances posing a threat, even a serious
one, that a right will be violated.



recovery, and it must be pled and proven, or an action for

damages simply does not lie. The trial court thus quite

properly granted judgment on the pleadings as to Scientology's

claims for damages.

3. Scientology Was Not Entitled to a Broad Injunction
Affecting Yanny's Practice of Law in Other Courts.

Scientology contends, however, that, having pled the

existence of a substantial relationship between Yanny's former

representation of Scientology and any matter in which he might

represent the Aznarans or Armstrong against Scientology, it was

entitled to prove the existence of that relationship, and

thereafter to obtain a permanent injunction enjoining Yanny

both from representing those parties as their attorney of

record in any proceeding in any court and from assisting them

informally in any such proceedings. We cannot agree.

Initially, Scientology has an adequate remedy by way

of a disqualification motion, which it is free to file in any

matter in which it believes Yanny is improperly aiding its

adversaries. The injunction requested would do no more than

enjoin Yanny from "violating the fiduciary duties he owes to

plaintiffs, as a result of their earlier attorney-client

relationship," and Yanny is already prohibited from such

violations, by his duties under Business and Professions Code

section 6068 and rule 3-310 of the Rules of Professional

Conduct. Further, given the broad phrasing of the requested



injunction, the only means of enforcing it would be to bring a

motion for contempt in any proceeding in which Yanny might be

representing or assisting an adversary. Such a motion would

raise the issue of whether Yanny was violating a duty to

Scientology--precisely the issue which would be raised by an

ordinary motion to disqualify Yanny, which could be brought

without regard to the injunction.

Scientology denies a disqualification motion would be

an effective remedy, and contends it has no effective remedy

against threatened breaches by Yanny of his duties to it,

because Yanny has acted in the past, and may act in the future,

"behind the scenes" to give improper assistance to its

adversaries, rather than appear in their behalf as attorney of

record. Scientology argues that it is unclear whether a court

would have jurisdiction to disqualify an attorney who does not

make a formal appearance in an action and who denies any

participation in it.

The issue of whether a court would have jurisdiction

to enjoin an attorney from assisting a party "behind the

scenes" in a particular case is, of course, not before us.

However, it is mere sophistry to say that a court would have

jurisdiction to prohibit as a contempt Yanny's informal or

surreptitious participation in a case, yet say that the same

court might lack jurisdiction to prohibit the same conduct as a



potential violation of the attorney's duties under generally

applicable statutes and rules.

More fundamentally, the court below had no

jurisdiction to grant the injunction Scientology sought.

Scientology correctly argues that an attorney's former client

can seek to disqualify the attorney from an improper successive

representation in either of two ways: either (1) by a

disqualification motion in the action in which the former

attorney appears for the former's client's adversary (People ex

rel. Deukmejian v. Brown, supra, 29 Cal.3d at p. 159; Big Bear

Mun. Water Dist. v. Superior Court (1969) 269 Cal.App.2d 919,

927; Grove v. Grove Valve & Regulator Co., supra, 213

Cal.App.2d at p. 652); or (2) by a separate action to enjoin

the adverse representation (Watchumna Water Co. v. Bailey

(1932) 216 Cal. 564, 565, 574). However, even where a separate

action for an injunction has successfully been brought, the

injunction was directed only against the attorney's

participation in specific lawsuits in courts whose proceedings

are subject to the jurisdiction of the court issuing the

injunction. (Ibid.) Scientology has cited no precedent for

the kind of broad injunction which it seeks. Indeed, such

authority as exists is squarely against the issuance of such an


The power to disqualify an attorney derives from the

court's inherent power to control the conduct of persons "in



any manner connected with a judicial proceeding before it, in

every matter pertaining thereto." (Code Civ. Proc., § 128,

subd. (a)(5); In re Complex Asbestos Litigation, supra, 232

Cal.App.3d at p. 600.) A superior court has no inherent or

statutory power to control the conduct of persons in judicial

proceedings pending or later to be brought before a different

court, and indeed is not permitted to interfere with the

process of another court of equal jurisdiction in a case

properly before the latter. (Ibid.) This is a matter of

fundamental comity between courts, which should not be set

aside in what would amount to an ineffectual effort to enable

Scientology, in one single proceeding, to prevent Yanny from

ever using confidences he obtained while serving as its

attorney to assist its adversaries in any proceeding at any


In sum, the injunction was both duplicative of

existing remedies and beyond the court's jurisdiction. It was

therefore properly denied.

4. The Court Did Not Abuse Its Discretion in Denying
Scientology The Opportunity to Amend Its Complaint.

Scientology contends it should have been afforded the

opportunity of amending its complaint to allege actual

disclosures of confidences. As a general matter, a motion for

judgment on the pleadings should not be granted without leave

to amend if facts are alleged which would entitle the plaintiff



to relief under any theory. (Concerned Citizens of Costa Mesa,

Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929,

936; Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118.)

However, under the specific circumstances of this case,

Scientology could not possibly have amended its complaint to

state a cause of action for damages for Yanny's alleged breach

of duty, where Scientology had stipulated that it did not base

any claim upon any alleged disclosure of confidences, and that

the existence or nonexistence of any such disclosures would not

be an issue in the case. In ruling on the motion for judgment

on the pleadings, the court could take judicial notice of the

stipulation. (Cantu v. Resolution Trust Corp. (1992) 4

Cal.App.4th 857, 877, and cases cited therein; Hughes v.

Western MacArthur Co., supra, 192 Cal.App.3d at p. 955.) Nor

could any possible amendment of the complaint have entitled

Scientology to the broad injunction it sought, for such relief,

as we have observed, was beyond the court's jurisdiction.

Under these circumstances, the court did not abuse its

discretion in entering judgment on the pleadings without leave

to amend.


The judgment is affirmed. Costs on appeal are awarded

to Yanny.




We concur:


CROSKEY, Acting P.J.








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