Plaintiff's Motion For Summary Judgment
CSI v. Gerald Armstrong, Robert Minton, Lisa McPherson Trust
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ANDREW H. WILSON, SBN 63209
WILSON CAMPILONGO LLP
475 Gate Five Road, Suite 212
Sausalito, CA 94965-1475
Telephone: (415) 289-7100
Facsimile: (415) 289-7110
Attorney for Plaintiff
CHURCH OF SCIENTOLOGY INTERNATIONAL
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF MARIN
CHURCH OF SCIENTOLOGY INTERNATIONAL, a California Plaintiff, vs. GERALD ARMSTRONG, an Defendants.
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CASE NO. CV021632 PLAINTIFF'S NOTICE OF MOTION [SEPARATE STATEMENT OF Date: February 3, 2004 Complaint Filed: April 2, 2002 |
TO DEFENDANT GERALD ARMSTRONG AND HIS ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on February 3, 2004, at 9:00 a.m. in Department L of this Court, located at 3501 Civic Center Drive, San Rafael CA, 94903. Plaintiff, Church of Scientology International ("CSI") will move this Court for summary judgment in favor of plaintiff and against defendant, Gerald Armstrong ("Armstrong") as to CSI's first cause of action for breach of contract.
This motion is made upon the grounds that: (1) there are no triable issues of material fact because Armstrong has admitted committing the 201 breaches of contract alleged in the First Cause of Action (1); (2) The Agreement mandates an award of Fifty Thousand Dollars ($50,000) for each such breach; (3) CSI and Armstrong were parties in prior proceedings in which the validity and enforceability of the Agreement were vigorously litigated and finally adjudicated, resulting in a judgment on the merits in favor of plaintiff Because there are no triable issues of fact as to either liability or damages, and because the validity and enforceability of the Agreement were litigated and conclusively determined in a prior proceeding which terminated with a final judgment on the merits, plaintiff is entitled to summary judgment as a matter of law.
This motion is based upon this notice, the memorandum of points and authorities, the separate statement of undisputed facts, the Declaration of Andrew Wilson and exhibits, all of which are attached hereto and served and filed herewith, and such other and further matters as may properly be brought before the Court.
| Dated: November 17, 2003 | Respectfully submitted, |
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
This case was brought by plaintiff CSI against Armstrong for breach of contract and conspiracy to breach contract, and against defendants Robert Minton and the Lisa McPherson Trust for intentional interference with contractual relations and conspiracy to breach contract. Plaintiff has dismissed the claims against Robert Minton and the Trust. What remains is plaintiff's first cause of action for breach of contract against Armstrong, which arises out of a Mutual Release of All Claims and Settlement Agreement ("Agreement") by which the contracting parties settled then extant litigation and gave mutual releases of known and unknown claims. Specifically, Plaintiff asserts that Armstrong has committed 201 separate and distinct breaches of the Paragraph 7(D) of the Agreement which provides for the award of $50,000 for each breach, or a total of $10,050,000.
As shown below, Armstrong has admitted committing the breaches, and the validity of the Agreement was already raised and litigated between plaintiff and Armstrong in a prior proceeding in this Court, which resulted in a final judgment on the merits in plaintiff's favor. Subsequent contempt proceedings based on Armstrong's violation of the injunction resulted in a finding of contempt based on 131 of the 201 breaches of the Agreement alleged in the First Cause of Action. Because there are no issues of material fact and because Armstrong is collaterally estopped to challenge the validity or enforceability of the Agreement, plaintiff is entitled to judgment on its first cause of action as a matter of law in the amount of $10,050,000.
II. STATEMENT OF UNDISPUTED FACTS
On December 6, 1986, CSI and Armstrong entered into a Mutual Release of All Claims and Settlement Agreement ("Agreement") in the case entitled Church of Scientology International v. Armstrong, Case No. C 420153 (Separate Statement, Undisputed Fact No.1). In consideration, Armstrong made various covenants, including the following contained in paragraph 7(D) of the Agreement:
Plaintiff agrees never to create or publish, or attempt to publish, and/or assist another to create for publication by means of magazine, article, book or other similar form, any writing or broadcast or to assist another to create, write, film
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or video tape or audio tape any show, program or movie, or to grant interviews or discuss with others, concerning their experiences with the Church of Scientology, or concerning their personal or indirectly acquired knowledge or information concerning the Church of Scientology, L. Ron Hubbard or any of the organizations, individuals and entities listed in Paragraph 1 above. Plaintiff further agrees that he will maintain strict confidentiality and silence with respect to his experiences with the Church of Scientology and any knowledge or information he may have concerning the Church of Scientology, L. Ron Hubbard, or any of the organizations, individuals or entities listed in Paragraph 1 above. . . . Plaintiff agrees that if the terms of this paragraph are breached by him, that CSI and the other Releasees would be entitled to liquidated damages in the amount of $50,000 for each such breach.
(Separate Statement, Undisputed Fact No. 1).
Several years later, plaintiff filed a breach of contract action against Armstrong which was finally determined in this Court in the case entitled Church of Scientology International v. Armstrong, Case Nos. 152229 and 157680 ("Consolidated Action"). (Separate Statement, Undisputed Fact Nos. 2 and 3).1
In the Consolidated Action, plaintiff sought liquidated damages pursuant to the terms of the Agreement, as well as injunctive relief to prevent any future breaches of the Agreement by Armstrong, including breaches of paragraph 7(D) of the Agreement. (Separate Statement, Undisputed Fact Nos. 2 and 3).
Armstrong, represented by counsel, cross-complained against plaintiff in the Consolidated Action challenging the validity of the Agreement on a number of grounds, including violation of the First Amendment, illegality and duress. (Separate Statement, Undisputed Fact No. 4).
Thereafter, these issues were vigorously litigated between the parties in the Consolidated Action. On October 17, 1995, following a motion for summary adjudication of issues brought by CSI against Armstrong, this Court entered an Order of Permanent Injunction in the Consolidated Action adjudicating the following:
1 CSI originally filed this action in this Court. Armstrong successfully sought a change of venue to Los Angeles County. However, after CSI's motion for preliminary injunction was granted, Armstrong consented to a transfer of the action to Marin County, where a Final Judgment of Permanent Injunction was entered by the Hon Gary Thomas.
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"1. Plaintiff and defendant freely and voluntarily entered into a Mutual Release of All Claims and Settlement Agreement in December, 1986.
2. Plaintiff performed all of its obligations pursuant to the Agreement.
3. Defendant Armstrong received substantial consideration for the promises which he made in the Agreement.
4. Since 1990, defendant Armstrong has repeatedly breached paragraphs 7(D) . . .
9. Defendant Armstrong has reiterated numerous times that he intends to continue breaching the Agreement unless he is ordered by the Court to cease and desist . . .
10. Plaintiff's legal remedies are inadequate insofar as the scope of the relief ordered below is concerned . . .
Accordingly, the Court finds that entry of a permanent injunction in this action is necessary in this action because pecuniary compensation could not afford the Church adequate relief, and the restraint is necessary in order to prevent a multiplicity of actions for breach of contract."
Thereafter, the court permanently enjoined Armstrong from "doing directly or indirectly any of the following":
"Facilitating in any manner the creation, publication, broadcast, writing, filming, audio recording, video recording, electronic recording or reproduction of any kind of any book, article, film, television program, radio program, treatment, declaration, screenplay or other literary, artistic or documentary work of any kind which discusses, refers to or mentions Scientology, the Church and/or any of the Beneficiaries (which includes plaintiff herein, CSI);
5. Discussing with anyone, not a member of Armstrong's immediate family or his attorney, Scientology, the Church, and/or any of the Beneficiaries (including CSI)"
(Separate Statement, Undisputed Fact No. 6).
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On May 2, 1996, the Order of Permanent Injunction was incorporated into a judgment against Armstrong. (Separate Statement, Undisputed Fact No. 7).
Thereafter, on or about November 13, 2000, plaintiff applied Ex Parte to the Court in the Consolidated Action for an Order to Show Cause why Armstrong should not be held in contempt for violating the October 17, 1995 Order of Permanent Injunction for engaging in 131 breaches of the October 17, 1995 Injunction. (Separate Statement, Undisputed Fact No. 8).
These 131 breaches consisted of postings that Armstrong made on the Internet between the years 1998 through 2000 and are the same breaches at issue in plaintiff's case here. These postings are written publications in which he discusses his and others' experiences in the Church of Scientology and he makes mention of and discusses information he has concerning the Church of Scientology. (Separate Statement, Undisputed Fact Nos. 2 and 9). Armstrong was given an opportunity and did file an opposition to the Ex Parte Application, asserting the same arguments he proffered earlier in the Consolidated Action. (Separate Statement, Undisputed Fact No. 10).
On July 12, 2001, the court issued its decision in an Order of Contempt finding that Armstrong had, in fact, violated the terms of the Injunction by engaging in 131 breaches of the Agreement which are at issue here:
Petitioner (CSI) has shown that: (1) During the period of February 20, 1998 to "July 10, 2000, ARMSTRONG made a total of 131 postings on the Internet, each of which violated one or more provisions of the Injunction . . .;
ARMSTRONG did not deny these violations. In his January 9, 2001 declaration under penalty of perjury, ARMSTRONG stated, "I have violated Scientology's Injunction thousands of times since former Marin County Superior Court Judge [Gary Thomas] signed it in October, 1995.
(Separate Statement, Undisputed Fact No. 11).
Armstrong's conduct did not change, resulting in this action to recover for the 131 breaches upon which the contempt finding were based and 70 additional breaches. Armstrong's Answer admits the 201 breaches alleged in the First Cause of Action. Separate Statement, Undisputed
Fact No. 12.
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III. ARGUMENT
A. Applicable Legal Standards
A motion for summary judgment shall be granted if all the papers submitted show there are no triable issues as to any material facts and the moving party is entitled to judgment as a matter of law. C.C.P. § 437c(c). To be "material" for purposes of a summary judgment proceeding, a fact must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way. Zavala v. Arce (1997) 58 Cal.App.4th 915, 926, 68 Cal.Rptr.2d 571. Plaintiffs' burden on summary judgment is to "produce admissible evidence on each element of a cause of action entitling them to judgment." C.C.P. § 437c(o)(1); Hunter v. Pacific Mechanical Corporation (1995) 37 Cal.App.4th 1282, 1287, 44 Cal.Rptr.2d 335, 337.
Admissions of material fact made by the opposing party in pleadings are particularly appropriate support for a summary judgment motion. Pinewood Investors v. City of Oxnard, 133 Cal. App. 2d 3d 1030, 1034-35 (1982); Savage v. Pacific Gas & Electric Co. v. Savage, 21 Cal. App. 4th 434, 444 (1993). Weil & Brown, Civil Procedure Before Trial, § 10:20, at p.10-7, Rutter Group (2003).
The doctrine of res judicata "not only is properly raised by a motion for summary judgment, but also is a proper ground upon which to grant a summary judgment." Lederer v. Rohrbasser (1986) 179 Cal.App.3d 290, 296, 224 Cal.Rptr. 791, 794. "Summary judgment is an appropriate remedy when the doctrine of res judicata in its subsidiary form of collateral estoppel refutes all triable issues of fact suggested by the pleadings." Southwell, M.D. v. Mallery, Stern & Warford, et al. (1987) 194 Cal.App.3d 140, 144, 239 Cal.Rptr. 371, 374.
Res judicata has two aspects. One is where it operates as a bar and prevents the parties from relitigating a cause of action a second time. The other aspect, known as collateral estoppel, is what is involved here. Collateral estoppel "causes a judgment in a previous action between the same parties to operate in the second action as a conclusive adjudication as to whatever issues were actually and necessarily decided in the first action." Id., Lederer.
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IV. ARGUMENT
A. Armstrong Has Admitted All Material Facts Upon Which This Motion is Predicated.
It is hard to imagine a more appropriate case for a granting of summary judgment. The First Cause of Action of the Complaint herein specifies 201 instances in which Armstrong breached the provisions of Paragraph 7(D) of the Agreement. Armstrong has not only admitted that he committed those breaches, he has boasted of it, bragging that "Armstrong has committed ... a grand total of more than 100,000 separate and distinct breaches of Paragraph 7D of the mutual release." See, Answer of Gerry Armstrong, Wilson Decl. ¶3, Exhibit B thereto; Plaintiff's Undisputed Fact Nos. 6, 9, 11, 12. In the light of the admissions contained in Armstrong's Answer, there can be no issues of material fact concerning whether or not the breaches occurred. Likewise, there can be no disputes of material fact as to either the fact or amount of damage, as Paragraph 7 (D) clearly provides for an award of $50,000 for each breach.
Moreover, 131 of the 201 breaches alleged in the First Cause of Action were the basis for a contempt order issued by this Court in the Consolidated Action. Separate Statement, Undisputed Fact No. 11. The Final Injunction issued by the Hon Gary W. Thomas tracked the language of Paragraph 7 (D) of the Agreement. See, Wilson Decl. ¶7, and Wilson Decl. ¶2, Exhibit A (¶ 7 (D) at 6-7). Thus, the Court's finding on July 12, 2001 that Armstrong made a total of 131 postings on the Internet which violated the Order of Permanent Injunction is also a finding that those 131 postings were also breaches of Paragraph 7 (D).
B. Armstrong is Collaterally Estopped to Deny Either the Existence of the breaches or the enforceability of the Agreement.
The California Supreme Court has held that, under the doctrine of collateral estoppel, "prior judicial determination of a legal issue with respect to specific facts may be given effect in a subsequent action between the same parties." Chern v. Bank of America (1976) 15 Cal.3d. 866, 871, 127 Cal.Rptr. 110, 113. To successfully assert collateral estoppel, plaintiff must establish the following elements: (1) the issue raised in the present action is identical to one litigated in a prior proceeding; (2) the prior proceeding resulted in final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior
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proceeding. Grinham v. Fielder (2002) 99 Cal.App.4th 1049, 1054, 121 Cal.Rptr.2d 468, 471.
The issues raised by plaintiff's breach of contract action here are (1) whether or not the Agreement is enforceable; and (2) whether Armstrong's 131 postings violated paragraph 7(D) of the Agreement sufficient to warrant damages in the amount of $655,000. There is no question that the elements for collateral estoppel are applicable here.
First, the validity and enforceability of the Agreement was aggressively contested by Armstrong through all possible legal process available to him in that matter. When judgment was decided against him on this issue, he sought reconsideration of it. When that was denied, he appealed. Thus, he had every opportunity and indeed, took all opportunities to litigate this issue. The result was a judgment in favor of plaintiff, in which the Court found that the Agreement was valid and its terms enforceable. See, Wilson Decl. ¶6, Exhibit E, Armstrong's Cross Complaint; Wilson Decl. ¶7, Exhibit F, Order of Permanent Injunction; Wilson Decl. ¶8, Exhibit 11 Consolidated Judgment.
Second, while the breaches of paragraph 7(D) that were litigated in the Consolidated Action resulted in a judgment in favor of CSI were not the ones at issue here, the Court did issue an injunction against Armstrong which expressly prohibited him from (1) discussing his experiences with the Church of Scientology with others; and (2) discussing any information with others concerning the Church of Scientology, provisions taken directly out of paragraph 7(D) of the Agreement.
Thereafter, in the same Consolidated Action, plaintiff instituted a contempt proceeding, seeking a determination as to whether or not 131 postings in which Armstrong discussed with others, information regarding his knowledge and experiences with the Church of Scientology, were a direct breach of the Court's injunction and consequently, paragraph 7(D) of the Agreement, expressly prohibiting such conduct. This issue was litigated between the parties, resulting in a judicial determination that, by making these 131 postings, Armstrong had, in fact, breached his obligations under the Court's injunction expressly prohibiting such conduct. Indeed, Armstrong admitted the breaches.
Thus, the issues raised by plaintiff's first cause of action here for breach of contract related to
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the legality, validity and enforceability of the Agreement and to 131 of the 201 breaches of the Agreement alleged here have already been conclusively determined and cannot be relitigated here.
V. CONCLUSION
As the foregoing shows, there are no issues of material fact. Armstrong has admitted committing the 201 breaches alleged in the First Cause of Action. The Agreement was found to be valid and enforceable in the Consolidated Action, which terminated in a final judgment on the merits. A contempt proceeding in the Consolidated Action resulted ina finding that Armstrong committed 131 of the 201 breaches at issue here. There is also no dispute of fact as to the amount of damages which should be awarded. The Agreement clearly specifies that $50,000 shall be awarded for each breach. Accordingly, plaintiff is entitled to summary judgment on its first cause of action for breach of contract, as a matter of law, in the amount of $10,050,00.
| Dated: November 17, 2003 | Respectfully submitted, WILSON CAMPILONGO LLP By: [signed] Andrew H. Wilson Attorneys for Plaintiff |
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ANDREW H. WILSON, SBN 63209
WILSON CAMPILONGO LLP
475 Gate Five Road, Suite 212
Sausalito, CA 94965-1475
Telephone: (415) 289-7100
Facsimile: (415) 289-7110
Attorney for Plaintiff
CHURCH OF SCIENTOLOGY INTERNATIONAL
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF MARIN
CHURCH OF SCIENTOLOGY INTERNATIONAL, a California nonprofit religious corporation, Plaintiff, vs. Defendants. |
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CASE NO. CV 021632 PROOF OF SERVICE FOR PLAINTIFF'S Date: February 3, 2004 Complaint Filed: April 2, 2002 |
PROOF OF SERVICE
I, the undersigned, declare:
I am employed in the County of Marin, State of California. I am over the age of 18 and not a party to the within action; my business address is 475 Gate 5 Road, Suite 212, Sausalito, California 94965.
On November 17, 2003, I served the foregoing document(s) described as follows:
(1) Plaintiff's Notice of Motion and Motion for Summary Judgment; Points and Authorities in Support Thereof; Proposed Order (2) Separate Statement of Undisputed Facts; and (3) Declaration of Andrew H. Wilson In Support of Motion for Summary Judgement.
on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as stated on the attached service list, as follows:
BY MAIL:
| I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U..S. Postal Service on that same day with postage thereon fully prepaid at Sausalito, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. |
BY PERSONAL SERVICE:
| I caused to be delivered such envelope by hand to the offices of the addressee. |
x BY FEDERAL EXPRESS OR OVERNIGHT COURIER
BY TELECOPIER
Gerry Armstrong
DIALOG ZENTRUM BERLIN
Heimat 27
D-14165 Berlin-Zehlendorf
Germany
| Executed on November 17, 2003 at Sausalito, California |
xx (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
(Federal) I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made.
| Pasquale Springer (Type or Print Name) |
[signed] Pasquale Springer (Signature) |