SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

CHURCH OF SCIENTOLOGY OF CALIFORNIA, a California Corporation; Plaintiff, vs. GERALD ARMSTRONG, et al., Defendants. AND RELATED CROSS-ACTIONS

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No. C 420 153 PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR RETURN OF EXHIBITS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF NEIL LEVIN [C.C.P. §§ 1952; 1952.2] Date: 9/30/02 Time: 3:30 a.m. Dept: One

TO DEFENDANT AND HIS COUNSEL OF RECORD

PLEASE TAKE NOTICE that on September 30, 2002, at the hour of 8:30 a.m. in Department 1 of the above entitled Court, plaintiff will and does hereby move this Court for an order for return of exhibits pursuant to C.C.P. §§ 1952 and 1952.2.

This motion is made upon the ground that there is a Court Order for Return of Exhibits and Sealed Documents entered in this case on December 11, 1986, over seventeen years ago, which mandates the return of the subject

1 CSC's MOTION FOR RETURN OF EXHIBITS; DECLARATION OF NEIL LEVIN

exhibits to plaintiff. Pursuant to C.C.P. §§ 1952 and 1952.2, that Order constitutes good cause for return of the exhibits to plaintiff.

This motion is based upon this Notice of Motion, the Points and Authorities set forth below, the attached Declaration of Neil Levin, the complete files and records in this action, and such other and further evidence that may properly come to the Court's attention at the hearing.

Dated: August 29, 2002.

Respectfully submitted,

SIMKE CHODOS
By: [signed]
DAVID MANNING CHODOS
Attorneys for Plaintiff and Cross-Defendant
CHURCH OF SCIENTOLOGY OF CALIFORNIA

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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION/STATEMENT OF FACTS

This case, originally filed in 1982, was settled in December 1986. As the court's file will reflect, between December 1986 and May 1992, several ancillary matters have been litigated under this caption. There has been no activity in this case since then. However, there remains one piece of administrative housekeeping to address - namely, the return of six trial exhibits which the Clerk of the Court has continued to maintain under seal following the 1986 settlement. By way of background, this case concerned the unauthorized taking by Mr. Armstrong in 1980 of thousands of pages of documents from archives maintained by CSC. On learning of the theft, CSC filed this action and on August 24, 1982, the Honorable John L. Cole ordered that defendant lodge with the Clerk all documents he had taken from the Church. (A supplemental order was issued on September 4, 1982.) Armstrong complied with these orders and deposited tens of thousands of pages of records with the Clerk. Many of these documents were later identified as trial exhibits and have subsequently been maintained by the Clerk, pursuant to a 1984 decision of the trial judge, which ordered that a number of those exhibits be kept under seal. As noted above, the parties settled the case in late 1986. In conjunction with that settlement, on December 11, 1986, the trial judge, the Honorable Paul G. Breckenridge, entered an Order for Return of Exhibits and Sealed Documents, which directed the disposition of these records as follows:

All documents...surrendered to the Court by Armstrong and his attorneys pursuant to Judge Cole's orders of August 24, 1982 and September 4, 1982 ... shall be released from the Superior Court and returned forthwith to the Church of Scientology of California or its attorney of record.

(Declaration of Neil Levin ("Levin Decl."), Exhibit [A] attached thereto.)

1 CSC's MOTION FOR RETURN OF EXHIBITS; DECLARATION OF NEIL LEVIN

However, Judge Breckenridge also carved out an exception for six specific trial exhibits (numbers 500-CCCCC, 500-KKKKK, 500-LLLLL, 500-OOOOO, 500-PPPPP and 500-OOOOO) which, at the time, were the subject of ongoing federal litigation in United States v. Zolin. Zolin was brought by the United States to enforce an IRS summons to the Superior Court which sought, inter alia, these six trial exhibits ("the Zolin documents"). Accordingly, Judge Breckenridge ordered, with respect to these documents, that:

In the event that the government is found to be entitled to any of the listed exhibits upon the conclusion of the Zolin litigation, the Clerk of this Court shall provide the government with a copy of such exhibit or exhibits and then immediately return all remaining copies of the corresponding exhibits to the Church of Scientology of California or its attorneys of record. (emphasis added)

(Levin Decl., Exhibit [A].) Pursuant to Judge Breckenridge's December 1986 Order, CSC obtained the return of all the documents previously maintained by the Clerk, with the exception of the Zolin documents. In January, 1991, the United States obtained an order from the U.S. District Court in Zolin, permitting the Assistant U.S. Attorney to inspect and copy exhibit 500-CCCCC. The U.S. Attorney's Office accordingly applied to the Honorable Bruce Geenaert (Judge Breckenridge having retired by then), who issued an Order allowing the AUSA to inspect and copy this exhibit. The Order further specified that once the exhibit was copied,

"...the Clerk of this court shall restore Defendant's Exhibit 500-CCCCC (Folder containing two cassette tapes) to the previously ordered sealed status with the remaining sealed exhibits in the custody of the Clerk of this court." (Levin Decl., Exhibit [B] attached thereto.)

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The "previously ordered" status of the documents is clearly a reference to the December 1986 Order, which remains the operative ruling governing the disposition of these records.

The United States was granted access to the five other Zolin documents at a prior stage of the Zolin litigation, although it is not clear whether the AUSA ever actually obtained access to those documents and copied them. That is now a moot point, however, as the Zolin case was dismissed in 1993. (Levin Decl., Exhibit [C] attached thereto.)

For whatever reason, CSC's prior counsel did not attempt to obtain these exhibits pursuant to Judge Breckenridge's December 1986 Order - either in 1991, following the copying of Exhibit 500-CCCCC, or in 1993, following the dismissal of the Zolin case - despite the fact that Judge Breckenridge's Order clearly states that these documents should be released to CSC at that time. The recent filing of a motion by plaintiff with respect to Exhibit CCCCC in the case Wollersheim v. Church of Scientology of California, brought to plaintiff's attention that these documents had never been returned pursuant to Judge Breckenridge's Order¹. CSC now requests that this be done. (Levin Decl. attached hereto.)

II. DISCUSSION

GOOD CAUSE EXISTS FOR RETURN OF EXHIBITS PURSUANT TO C.C.P. §§ 1952 and 1952.2 C.C.P. §§ 1952 provides that "[t]he clerk shall retain in his or her custody any exhibit ... filed in the action or proceeding until the final determination thereof or the dismissal of the action or proceeding..." and that "the court may order the exhibit...returned to the respective party or parties __________ ¹ All proceedings against movant Church of Scientology of California in said matter have been dismissed. (See Exhibit "D" to Levin Declaration.).

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at any time...for good cause shown." Likewise, C.C.P. § 1952.2 provides:

Notwithstanding any other provisions of law, upon a judgment becoming final, at the expiration of the appeal period, unless an appeal is pending, the court, in its discretion, and on its own motion by a written order signed by the judge, filed in the action, and an entry thereof made in the register of actions, may order the clerk to return all of the exhibits...filed in the trial of a civil action or proceeding to the attorneys for the parties introducing or filing the same.

First, as required under C.C.P. § 1952.2, there is an Order for Return of Exhibit and Sealed Documents filed in this action on December 11, 1986 specifically ordering all documents at issue "released from the Superior Court and returned to the [plaintiff] or its attorney of record." Second, as set forth above, there is nothing remaining of this case, as it and any ancillary matters were litigated, settled and/or concluded over ten years ago. (Ordinarily, the Clerk has only to retain a sealed file for two years and after that, destruction of them would be statutorily authorized. C.C.P. § 1952.3(b)). Accordingly, good cause exists under C.C.P. § 1952 and 1952.2 for an order for return of these exhibits to plaintiff.

III. CONCLUSION

Seventeen years ago, the exhibits at issue here were ordered to be returned to plaintiff or its attorney of record. The case and any ancillary matters were long since completed. There is both good cause, and an entered order for the return of the exhibits to plaintiff and plaintiff respectfully.

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requests that its motion requesting that trial exhibits 500-CCCCC, 500-KKKKK, 500-LLLLL, 500-OOOOO, 500-PPPPP and 500-OOOOOO be returned, be granted. Dated: August 29, 2002.

Respectfully submitted,
SIMKE CHODOS
By: [signed]
DAVID MANNING CHODOS
Attorneys for Plaintiff and Cross-Defendant
CHURCH OF SCIENTOLOGY OF CALIFORNIA

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David M. Chodos, SBN 39555
Simke CHODOS
1880 Century Park East, Suite 1511
Los Angeles, California 90067-1615
Telephone: (310) 203-3888
Facsimile: (310) 203-3866
Attorneys for Plaintiff and Cross-Defendant
CHURCH OF SCIENTOLOGY OF CALIFORNIA

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

CHURCH OF SCIENTOLOGY OF CALIFORNIA, a California Corporation; Plaintiff, v. GERALD ARMSTRONG, et al., Defendants. AND RELATED CROSS-ACTION

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C 420 153 DECLARATION OF NEIL LEVIN [C.C.P. §§ 1952; 1952.2] Date: Time: Dept: 1

I, Neil Levin, declare:

1. I am the President of Church of Scientology of California (" CSC"), the plaintiff in this action, and a member of its Board of Directors. I was first employed by CSC in late 1984, was appointed a member of CSC's Board of Directors in February 1988, and was named President of CSC in October 1993. As such, I have personal knowledge of the facts set forth in this Declaration and I have extensively reviewed CSC's records of this and other litigation involving CSC. As CSC's President, I have had full access to these records and I am responsible for their maintenance. I submit this declaration in support of CSC's motion for return of exhibits. If called as a witness, I

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could and would competently testify to the facts set forth herein.

2. This case, originally filed in 1982, was settled in December 1986. (Exhibit "[A]".) As this Court's file will reflect, between December 1986 and May 1992, several ancillary matters have been litigated under this caption. As the file will also reflect, there has been no activity in this case since then. However, there remains one piece of administrative housekeeping to address - namely, the return of six trial exhibits which the Clerk of the Court has continued to maintain under seal following the 1986 settlement.

3. By way of background, this case concerned the unauthorized taking by Mr. Armstrong in 1980 of thousands of pages of documents from archives maintained by CSC. On learning of the theft, CSC filed this action and on August 24, 1982, the Honorable John L. Cole ordered that defendant lodge with the Clerk all documents he had taken from the Church. (A supplemental order was issued on September 4, 1982.) Armstrong complied with these orders and deposited tens of thousands of pages of records with the Clerk. Many of these documents were later identified as trial exhibits and have subsequently been maintained by the Clerk, pursuant to a 1984 decision of the trial judge, which ordered that a number of those exhibits be kept under seal.

4. As noted above, the parties settled the case in late 1986. In conjunction with that settlement, on December 11, 1986, the trial judge, the Honorable Paul G. Breckenridge, entered an Order for Return of Exhibits and Sealed Documents, which directed the disposition of these records as follows:

All documents...surrendered to the Court by Armstrong and his attorneys pursuant to Judge Cole's orders of August 24, 1982 and September 4, 1982...shall be released from the Superior Court and returned forthwith to the Church of Scientology of California or its attorney of record.

(A true and correct copy of that Order For Return of Exhibits and Sealed Documents is attached hereto as Exhibit [B].)

5. However, Judge Breckenridge also carved out an exception for six specific trial exhibits (numbers 500-CCCCC, 500-KKKKK, 500-LLLLL, 500-OOOOO, 500-PPPPP and 500-OOOOOO) which, at the time, were the subject of ongoing federal

2 DECLARATION OF NEIL LEVIN

litigation in United States v. Zolin. Zolin was brought by the United States to enforce an IRS summons to the Superior Court which sought, inter alia, these six trial exhibits ("the Zolin documents"). Accordingly, Judge Breckenridge ordered, with respect to these documents, that:

In the event that the government is found to be entitled to any of the listed exhibits upon the conclusion of the Zolin litigation, the Clerk of this Court shall provide the government with a copy of such exhibit or exhibits and then immediately return all remaining copies of the corresponding exhibits to the Church of Scientology of California or its attorney of record.

6. Pursuant to Judge Breckenridge's December 1986 Order, CSC obtained the return of all the documents previously maintained by the Clerk, with the exception of the Zolin documents.

7. In January 1991, the United States obtained an order from the U.S. District Court in Zolin, permitting the Assistant U.S. Attorney to inspect and copy exhibit 500-CCCCC. The U.S. Attorney's Office accordingly applied to the Honorable Bruce Geernaert (Judge Breckenridge having retired by then), who issued an Order allowing the AUSA to inspect and copy this exhibit. The Order further specified that once the exhibit was copied, "...the Clerk of this court shall restore Defendant's Exhibit 500-CCCCC (Folder containing two cassette tapes) to the previously ordered sealed status with the remaining sealed exhibits in the custody of the Clerk of this court." (A true and correct copy of Order to Unseal and Produce Exhibit Pursuant to Order on Remand is attached hereto as Exhibit [C].) The "previously ordered" status of the documents is clearly a reference to the December 1986 Order, which remains the operative rule governing the disposition of these records.

8. The United States was granted access to the five other Zolin documents at a prior stage of the Zolin litigation, although it is not clear whether the AUSA ever actually obtained access to those documents and copied them. That is now a moot point, however, as the Zolin case was dismissed in 1993. (A true and correct copy of that Order is attached hereto as Exhibit [D].)

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9. For whatever reason, the Court's file in this matter reflects that CSC's prior counsel apparently did not attempt to obtain these exhibits pursuant to Judge Breckenridge's December 1986 Order - either in 1991, following the copying of Exhibit 500-CCCCC, or in 1993, following the dismissal of the Zolin case - despite the fact that Judge Breckenridge's Order clearly states that these documents should be released to CSC at that time. The recent filing of a motion with respect to Exhibit CCCCC by the plaintiff in the case of Wollersheim v. Church of Scientology of California brought to my attention that these documents had never been returned to CSC pursuant to Judge Breckenridge's Order.

10. The judgment rendered in the Wollersheim matter has since been satisfied, Movant Church of Scientology of California has been released as a party to said matter and the only proceedings remaining are between competing claimants to the funds on deposit with the court. (A copy of said Order is attached hereto as Exhibit [E].)

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 30th day of August, 2002 at Los Angeles, California.

[signed]

NEIL LEVIN

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Exhibit [A] Order Dismissing Action With Prejudice Filed 12-11-1986

Exhibit [B] Order for Return of Exhibits and Sealed Documents Filed 12-11-1986

Exhibit [C] Order to Unseal and Produce Exhibit Pursuant to Order on Remand 01-23-1991

Exhibit [D] Exhibit not received. Described in the document above should be the Order of Dismissal of Zolin in 1993. (Received instead: two generations of the document listed below as Exhibit E.)

Exhibit [E] Order granting Ex Parte Application, discharging CSC from Obligations in Wollersheim, dated 05-09-2002 and signed by Judge Robert L. Hess