The notation “Not to Be Published” means that this opinion, which
follows, is not to be published in official reports and may not be cited to, or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 The unpublished opinion may be cited to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
because it states reasons for a decision affecting the same defendant or
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, and can and should be cited to and used by those of us who oppose the cult in other arenas.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Los Angeles County. Raymond Cardenas, Judge. Affirmed.
William T. Drescher, attorney for Plaintiffs and
Appellants, Religious Technology Center; Eric M. Lieberman
et al., attorneys for Plaintiffs and Appellants, Church of
Parker, Jayesh Patel, Matthew D. Berger, Joseph A. Yanny,
attorneys for Defendants and Respondents Joseph A Yanny,
STANIFORTH, J., Dissenting:
The plaintiffs (appellants) are the Religious
Technology Center ("RTC")1 Church of Scientology of California
("CSC"), (collectively, Scientology) brought this action
against their former attorney Joseph A. Yanny (Yanny)2 seeking
a permanent injunction and damages. Yanny by cross-complaint
sought payment for legal services rendered Scientology
Churches. The trial commenced before a jury. Four weeks into
the jury trial Scientology waived their damages claim,
whereupon the trial was bifurcated. The jury was to determine
the legal issues (Yanny's cross-complaint) and the equitable
issue (injunctive relief) was to be determined by the court.
of his firm was 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
1 RTC has been joined in this brief by the other two
2 Also named as defendants were several associates who
conversion. Scientology charged, among other things, that
Yanny was orchestrating a number of lawsuits against them.
Yanny cross-complained for the legal fees owed him.
Yanny $154,000 damages as attorney fees owed. After
hearing the equitable claims the trial court denied
injunctive relief. Scientology appeals the adverse
Sickle, were guilty of deliberate pervasive misconduct so
prejudicial as to require reversal; that the trial court
failed to instruct as to willful suppression of evidence;
and there is a lack of substantial evidence to support the
jury award to Yanny. Finally it is urged the trial court
erred in refusing to enjoin Yanny from "continuing to aid
litigation adversaries in substantially related matters" to
his previous employment as attorney for Scientology.
August 1988) charged Yanny and his professional corporation
and associates with submitting false or inflated bills and
thus breach of contract (second cause of action) and
engaged in fraud (fourth cause of action). Plaintiffs also
charged Yanny, as well as Herzig & Yanny, with conversion
based on their failure to return, among other items, the
$150,000 retainer paid Yanny (ninth cause of action), and
with fraud for having knowingly made false representations
as to Yanny's responsibility for papers served but not
filed in a lawsuit in which Yanny represented RTC (sixth
cause of action).3
injunction prohibiting Yanny, Wynne, and McRae from
disclosing or encouraging the disclosure of confidences
obtained during their attorney-client relationship with
In February 1989, Yanny, filed a cross-complaint
3 The legal issues submitted in this appeal are no
4 This preliminary injunction was based upon the sworn
October through December 1987 for legal services and
expenses. He also asserted causes of action for breach of
contract (first cause of action), for account stated
(second cause of action), for work, labor and services
(third cause of action), and for book account (fourth cause
of action). In addition, Yanny alleged a cause of action
for quantum merit for $10,500,000, on the ground that
plaintiffs had purportedly been unjustly enriched by this
sum. The reasonable value of the cross-claimants' services
were sought (fifth cause of action). Finally, Yanny
claimed that plaintiff exploited him in breach of their
covenant of good faith and fair dealing (sixth cause of
action). Yanny's plaintiff cross-complaint sought both
compensatory and punitive damages.
relevant to the injunctive issues. These findings are
supported by substantial evidence.
5 A dispassionate reading of the Dorothy Peti's testimony
regard including transporting the Aznarans to other
attorneys' offices did not constitute a breach of duties
owed plaintiffs. There was insufficient evidence to
establish that Yanny rendered legal assistance to any
accepted by the trial court. More than substantial
evidence supports the trial court's denial of injunctive
relief. A dispassionate reading of the reporter's
transcript cited by Scientology leads to these
conclusions: (1) There was no evidence presented of
Yanny entering into any representation of any person, any
prospective adversary to Scientology; (2) There is a
total lack of evidence that Yanny breached any particular
or general fiduciary duties of confidentiality and
loyalty owed to his former client.
Concerning the standard of appellate review of
disqualification proceedings this court said in H.F.
Ahmanson & Co. v. Salomon Brothers, Inc. & Co., supra,
229 Cal.App.3d 1445 at p. 1451: "In our review of
disqualification motions, as elsewhere, the judgment of
the lower court is presumed correct and all intendments
and presumptions are indulged to support it on matters as
to which the record is silent. (Centinela Hospital Ass.
v. City of Inglewood (1990) 225 Cal.App.3d 1586.)
Conflicts in the declarations are resolved in favor
of the prevailing party and the trial court's resolution of
factual issues arising from competing declarations is
conclusive on the reviewing court. [Citations.]"
Cal.App.4th 556, 561-562; In re Complex Asbestos
Litigation, 232 Cal.App.3d 572, 667, 671; Higdon v.
Superior Court, 227 Cal.App.3d 1667, 1671.
Brothers, Inc., supra, 229 Cal.App.3d 1445, 1451
fiduciary duties of an attorney include the obligation to
refrain from aiding parties with interests adverse to the
interests of the attorney's former clients in matters
which are substantially related to matters the attorney
handled in representing the former clients. (See, e.g.,
People ex rel. Deukmejian v. Brown, 41 Cal.3d 150,
156-57; Western Continental Operating Co. v. Natural Gas
Corp. (1989) 212 Cal.App.3d 752, 758-60; In re Jessica
B. (1989) 207 Cal.App.3d 504, 511-12; River West, Inc.
v. Nickel, supra, 188 Cal.App.3d 1297, 1302-04; Elliott
v. McFarland Unified School District (1985) 165
Cal.App.3d 562, 568-70; Civil Service Commission v.
Superior Court (1984) 163 Cal.App.3d 70, 79-81; Dill
v. Superior Court (1984) 158 Cal.App.3d 301, 304-305; Woods
v. Superior Court (1983) 149 Cal.App.3d 931, 934-35.)
evidence whatsoever that Yanny represents any former
client with an interest adversed to those of
Scientology. This rule therefore has no application
here. The evidence is without contradiction, Yanny
determined after examination and consideration not to
represent any prospective client in a suit against
Scientology. Nor is there any evidence of any threat to
represent anyone in an unspecified future litigation
information extends beyond representing a client in an
action against a former client. "He may not do anything
which will injuriously affect his former client in any
manner . . . nor may he at any time use against his former
clients knowledge of information acquired by virtue of the
previous relationship." (Wutchumna Water Co. v. Bailey,
supra, 216 Cal. 564, 573-574; Grove v. Grove Valve &
Regulator Co. (1963) 213 Cal.App.2d 646, 650-651; Marriage
of Zimmerman, supra 16 Cal.App.4th 556, 562 and cases
suggest that Yanny was revealing "secrets learned in
representing Scientology" to anyone. The record is bare of
facts to support application of the broader rules cited
above. Scientology recognizes its difficult factual
Yanny's disclosure of secrets, Scientology relied upon
witnesses Dorothy Cota and Thomas Vallier. Cota reported
to Scientology attorneys her attendance of meetings where
Scientology claims "secrets" were disclosed. An
examination of her testimony shows no support for
Scientology's factual contention. The trial court found
her testimony "highly impeached" and "lacked credibility."
The second witness offering testimony to "secrets"
disclosed was Thomas Vallier. The trial court found
Vallier's testimony "not credible, not supported by other
absent any proof of disclosure of confidences, is not
actionable. Scientology does not cite a single case to
support its legal factual position. Scientology's
reliance on disqualification cases do not give life to
their cause of action here. As stated in a leading
national treatise on attorney malpractice, 1 Mallen &
Mith, Legal Malpractice (3d Ed.) at page 804:
factually before either injunction or damage relief could
be awarded. In these critical requirements Scientology
has abjectly failed.
limit the practice of law other than on a case by case
basis. The trial judge stated:
judge's decision is in complete conformity with binding
California authorities. It could not enjoin Yanny and
associates from the practice of law.
Cal.App.3d 572, 600-601, the appeal court set forth the
"jurisdiction limits" on the power to disqualify counsel
stating at pp. 600-601:
The trial court's negation of any right or
authority to disqualify counsel as to and future
representation was correct law yet the rule has no
application here. No representation of an adverse party
has been shown or threatened.
Scientology next contends the misconduct of Yanny
and his counsel throughout the trial was deliberate and
pervasive and so prejudicial as to compel reversal. When
such a charge is made we examine the contention in the
light of these basic principles. In Dominguez v. Pantalone
(1989) 212 Cal.App.3d 201, 210-211, this court quoted the
here relevant statements of the California Supreme Court in
Tingley v. Times Mirror (1907) 151 Cal. 1, 23:
732 the appellate court said:
Menasco court stated at page 733:
removed by an instruction to the jury to disregard it, it
is generally essential in order that an act of misconduct
be subject to review on appeal, that it be called to the
attention of the trial court at the time to give the court
an opportunity to so act if possible as to correct the
error and avoid a mistrial. Only misconduct so prejudicial
that as admonishment would be ineffective excuses the
failure to request such admonishment. (Whitfield v. Roth,
10 Cal.3d 874, 892.) (Emphasis mine.)
additional "appendix" to Scientology's Opening Brief. In
thirty-seven of those listed instances of purported
misconduct, Scientology made no objection at all.6
Twenty-two of the Scientology objections listed in the
"appendix" were specifically overruled by the trial
court.7 More significantly, twenty-seven of those
instances cited in Scientology's "appendix" took place
during the examination of Yanny, when he was on the stand.
He had been specifically excluded by the trial court from
participating in side bar conferences. Yanny had no way of
knowing the substance of the trial court's decision at
side-bar during his examination and the limits it might
have imposed on his testimony.
6 The following is a partial list: Reporters
7 The following is a partial list: Reporters
When objections were sustained, during the over
one-and-a-half month jury trial, the trial court followed,
when necessary, with an admonition that sought to clarify
that matters being discussed were allegations, rather than
does not support Scientology's charge. This was a hard
fought lawsuit. Scientology at long last concedes the
trial was "hotly contested". In this legal "hardball"
Scientology gave a great many more causes to complain than
did Yanny's counsel. The tone and flavor of Scientology
counsel's conduct (Cooley) appears in the opening
statement and continues into his final argument. In his
opening statement Cooley represented he would prove:
should be presented in good faith. Many of Cooley's
statements were totally unsupported by evidence produced at
unsupported statements of Yanny's marital infidelities.
statements continued into the final argument [by Cooley]
when he said:
statements as fact as demonstrated by the jury verdict in
favor of Yanny and the court's decision denying injunctive
relief to Scientology.
commission of the conduct now claimed to be Yanny's
misconduct. In such case Scientology is estopped from
asserting any induced, alleged, misconduct as a ground for
reversal. (9 B.E. Witkin, California Procedure: Appeal §
301 et seq. [3d Ed., 1985, Supp. 1992].) One of the major
issues of purported misconduct cited by Scientology, was
Yanny's reference to the Wollersheim verdict. This verdict
was in evidence, having been introduced by Scientology
itself as Exhibit 61. This is invited error or waiver.
(Gunch v. Fieg (1913) 164 Cal. 429, 3)
overruled or sustained the objections, over seventy
instances of purported misconduct cited by Scientology are
based on objections where there is no certification of the
grounds for objecting whether as to the form or the
substance of the question. These various examples cited
by Scientology, do not meet the standard to constitute
lawyer misconduct. There is no basis for reversal shown in
Scientology next contends the trial court's
failure to instruct the jury as to willful suppression of
evidence is reversible error. Two issues are raised. Was
the refusal erroneous, and if error, prejudicial?
Scientology has the burden of proof on both issues. (Null
v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.)
The court in place of the requested instruction gave a
broader alternate instruction as follows:
theory advanced by him which finds support in the evidence.
(Phillips v. G. L. Truman Excavation Co. (1961) 55 cal.2d
801, 806; Daniels v. City of County of San Francisco (1953)
40 Cal.2d 614, 623.) But the precise instruction requested
is not required in every instance. The instruction actually
given had not only covered Scientology's theory of willful
suppression but also covered other theories favorable to
Scientology. Scientology's theory was adequately covered by
the instruction given. (See Williams v. Carl Karcher
Enterprises Inc. (1986) 182 Cal.App.3d 479, 487.) If it be
assumed that the broader instruction given was not
sufficient yet no prejudice is shown. The evidence was in
conflict as to what was contained in the non produced
documents. The jury chose to believe Yanny's witnesses.
There was no evidence of Yanny's willful suppression of any
Scientology contends that the jury verdict on the
cross-complaint is not supported by substantial evidence.
Scientology's quarrel is with the substantial evidence rule:
that the evidence was insufficient to support the
judgment. We do not reweigh the evidence on appeal, but
rather determine after resolving all conflicts favorable to
the prevailing party whether there is substantial evidence.
evidence of Yanny's contract to perform legal services for
Scientology and there is evidence of his performance of the
contract and Scientology's breach. Scientology refused to
pay for services rendered to Yanny's damages. Yanny was
hired by RTC president Vicki Aznaras. He was retained at a
non-refundable $150,000 retainer. The contract was
admitted. The Scientology's witness McShane admits the
final bill submitted by Yanny was unpaid. The services
rendered by Yanny were complex and extensive in nature. It
was only after Yanny expressed his disagreement with certain
Scientology practices and policies did Scientology question
any bills submitted. There is more than substantial
evidence to support the jury verdict and the trial court's
denial of injunctive relief. Each must be affirmed.
DISPOSITION IN RE SANCTIONS
sanctions upon Scientology under Code of Civil Procedure
section 907 as well as upon Scientology's attorney William
T. Drescher and Eric M. Lieberman. Respondents Mary Grieco
and Richard Wynne have been sued without cause, put to the
expense of a three month trial and to this lengthy appeal.
On this appeal Scientology does not even mention Mary
Grieco. Richard Wynne is mentioned only once in a footnote
in an unrelated matter.
After 41 days of trial--three months out of the
life of Yanny, Grieco, Wynne and McRae, Scientology
produced an enormous amount of time consuming legal
froth--no substance, no lawful basis, for any relief.
Scientology witnesses swore under penalty of perjury to
"facts" that formed the basis of the issuance of the
temporary restraining order here in the injunction. When
tested in open court these witnesses were found not worthy
witnesses, Dorothy Cole, was a plant, a spy placed by
Scientology in Yanny's employ. The declarations under oath
by Yanny, Grieco and Wynne support the conclusion that a
series of illegal pressures were sought to be placed on
these parties; that an attempt at subordination of perjury
conclusion. This appeal court and the trial court below
was used as a means in Scientology's pursuit of the "fair
game," policy of punishing those who leave Scientology
without Scientology's approval. This appears to be a
continuation of the fair games procedure of Scientology to
discredit and to destroy and ruin an adversary by whatever
(1991) 232 Cal.App.3d 1060, 1067; Wollershein v. Church of
Scientology of Calif., supra, 212 Cal.App.3d 872, 888,
58 Cal.App.3d 439, 444.)
Scientology witnesses totally failed to establish the
requisite facts necessary to judgments in their favor. The
evidence of the "fair game policy" and its application was
record on appeal (Cal. Rules of Court, § 5.1). Scientology
does not give this court the necessary record in order to
determine their contentions of error in the jury verdict.
This neglect prevents this court to reach the merits of the
justification for the prosecution of this appeal against
Mary A. Greco or Richard Wynne. There is no legal or
factual basis to find any error in the judgments in favor
of these individuals.
from the face of the record) that the trial was "hotly
contested." The record and the jury verdict and court
decision reflect a rejection of the unsupported slanderous
statements and legal deficiencies of Scientology's
Scientology and counsel have failed to respond to
or refute misleading arguments made on this appeal. (See
fns. 7 and 8, supra.) The same issues and arguments
presented on this appeal were made--unsuccessfully--before
Division Three of this court in case No. B068216 (see fn.
appellate court law having no relevancy whatsoever. This
case does not involve a lawyer representation of a client
against a former client after termination of that attorney
client relationship. Further, the law relevant to a
"breach of loyalty" absent facts to show a disclosure of
confidence has no application whatsoever. Three times
Scientology and its lawyers have pushed these inapposite
legal arguments without success. The high point in
evidence offered was rejected by the trial court as not
worthy of belief. This was an appeal on unproved--rejected
as false--facts. This appeal and its delays and total lack
of merit must be viewed in conjunction with the other
groundless similar lawsuit pursued against Yanny. Such
evidence leads to the conclusion that this proceeding was a
device for destroying Yanny and any lawyers who chose to
work with him. This appeal is the "Fair Game" of
Scientology infamy at work.
Scientology's failure to perform requisite acts to perfect
an appeal. There were violations of numerous rules of
court. The notice of appeal was filed April 23, 1991 and
designation of the reporters record made on May 9, 1991.
It was not until September of 1992 that Scientology paid
the estimated costs of completing the reporters
transcript. Failure to do so for over one year caused this
court to make its own motion to dismiss. Numerous other
delaying tactics appear in this record.
THE LAW IN RE SANCTIONS ON APPEAL
a time-consuming and disruptive use of the judicial
process. Similarly, an appeal taken despite the fact that
no reasonable attorney could have thought it meritorious
ties up judicial resources and diverts attention from the
burdensome volume of work at the appellate courts. An
appeal should be held to be frivolous only when, as here,
it is prosecuted for an improper motive--to harass the
respondent or delay the effect of an adverse judgment--or
where it indisputably has no merit--when any reasonable
attorney would agree that the appeal is totally and
completely without merit. (In re Marriage of Flaherty
(1982) 31 Cal.3d 637, 650.)
Pursuant to rule 26(a), this court may impose
upon offending attorneys or parties such penalties "as the
circumstances of the case and the discouragement of like
conduct in the future may require." (Italics added.)
considerations, "Penalties for prosecuting frivolous
appeals should not be imposed without giving fair warning,
affording the attorney an opportunity to respond to the
charge, and holding a hearing. Further, when imposing
sanctions, the court should provide the attorney with a
written statement of the reasons for the penalty." (In re
Marriage of Flaherty, supra, 31 Cal.3d at p. 654.) These
due process requirements have been more than met here.
It is pointed out in Bank of California v.
Varikin, 216 Cal.App.3d 1630, 1636, respondents are:
specific declarations as to time spent and applicable
hourly rates, I conclude the amount of attorneys fees
reasonably incurred in defense of this appeal by Yanny,
Greco and Wynne, is the sum of $63,387.50 plus costs
involved of $14,441.60 or a total of $77,829.10.
SANCTIONS PAYABLE TO THE COURT
arduous burden upon the court. Numerous briefs, procedural
motions precedes the oral argument in this case. I place
the fault for imposing this burden on the legal system upon
Scientology and counsel. This was a time-consuming, costly
and frivolous appeal. The taxpayers of the state have been
harmed by a wasteful diversion of their appellate court
limited resources. The appropriate measure of sanctions
should compensate the State of California for its
processing, reviewing and deciding this frivolous appeal.
This court is aware of the normal average cost of handling
an appeal in this Second District of the Court of Appeal
(see Young v. Rosenthal, supra, 212 Cal.App.3d at pp.
136-137), but I am also painfully aware that that is
not an average case.
California due to this frivolous appeal is the sum of
$25,000. Appellant Religious Technology Center, a
California non-profit religious corporation; Church of
Scientology International, a California non-profit religious
corporation; and Church of Scientology of California, A
California non-profit religious corporation and their
attorneys William T. Drescher and Eric M. Lieberman are
jointly and severally liable to Joseph A. Yanny and Mary A.
Greco and Richard Wynne for the total sum of $77,829.10.
to pay the further sum, as a joint and several obligation,
of $25,000 to the clerk of the court as a further sanction.
appeal are awarded to respondents.
*Assigned by the Chairperson of the Judicial Council.
LILLIE, P.J. and JOHNSON, J., Concurring and Dissenting:
opinion but depart from him on the issue of appellate
sanctions (Parts X - XII). We do not find the issues on
appeal to be so devoid of merit as to qualify as
frivolous under the standard enunciated in In re Marriage
of Flaherty (1982) 31 Cal.3d 637, 650. Nor do we find
sufficient evidence independent of the relative merit of
the issues raised on appeal to conclude the appeal was
"taken solely for delay." (Code Civ. Proc., § 907.)
Accordingly, we are unwilling to impose monetary
sanctions on appeal either in favor of the court or of
disposition of this case does not include any direction
to appellants or their attorneys to pay respondents the
monetary sanctions on appeal discussed in our colleague's
opinion or to pay monetary sanctions to the State of
California. However, we do deem it appropriate to
require appellants to pay respondents' costs on appeal.
Thus, the disposition of this appeal is as set forth in
the paragraph below.
awarded to respondents.
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