ANDREW H. WILSON, ESQ., SBN 63209
WILSON CAMPILONGO LLP
475 Gate Five Road, Suite 212
Sausalito, CA 94965-1475
Telephone: (415) 289-7100
Facsimile: (415) 289-7110

Attorneys for Plaintiff
CHURCH OF SCIENTOLOGY INTERNATIONAL

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF MARIN

Plaintiff, Church of Scientology International (hereinafter, "Church" or "Plaintiff"), has moved for Summary Judgment of its First Cause of Action for Breach of Contract.  That cause of action is based upon the Mutual Release of All Claims and Settlement Agreement (hereinafter "the Agreement") entered into between Plaintiff and Defendant, Gerald Armstrong (hereinafter "Defendant" or "Armstrong"), on December 6, 1986. Paragraph 7(D) of the Agreement prohibited Defendant from publishing or creating or assisting others to publish or create, any writing or broadcast concerning the Church of Scientolofy and to maintain strict confidentiality with regard to his experiences in the Church of Scientology.

The evidence the Church submitted in support of its motion demonstrates, without controversy,

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that Armstrong committed 201 breaches of that contractual obligation. The evidence in support of this motion also establishes that this is the second time Armstrong has engaged in such wholesale, deliberate breaches of that Agreement and that this court, per the Hon. Gary W. Thomas, adjudged him liable for 131 earlier breaches in the action which the Church filed to enforce the Agreement. In that action, Judge Thomas found that Aremstrong signed the Agreement free from the influence of fraud, duress, conspiracy, and the other purported affirmative defenses he reiterates in opposition to this motion.  The final judgment in that action also established that the contract was binding, valid, and enforceable, issues Armstrong tries to relitigate here.  Judge Thomas awarded liquidated damages for each breach, having specifically upheld the validity of that provision of the Agreement, and permanently enjoined Armstrong from further breaches of the Agreement, such as the 201 such breaches that are the subject of this summary judgment motion.

Armstrong appealed from the judgment in that action; the appeal was dismissed.  Armstrong is thus collaterally estopped to relitigate any of those issues in this motion, and as to the sole remaining element of the Church's breach of contract claims, Armstrong admitted — indeed, boasted of — committing the 201 breaches at issue in his Answer, as well as taking credit for hundreds more.

In response, Armstrong fails altogether to meet his burden of coming forward with admissible evidence to demonstrate the existence of a triable issue of fact.  C.C.P. § 437c(j).  Indeed, he fails to produce admissible evidence of anything.  Apart from asserting that his execution of the Agreement was by reason of fraud and duress (Undisputed Fact No. 1), which issues have already been adjudicated against him, and purporting to dispute Undisputed Fact No. 9 while admitting its substance — i.e., that he had the opportunity to, and did, oppose the ex parte application that led his earlier criminal contempt conviction — Armstrong does not challenge the factual or legal basis for this summary judgment motion.

Instead, he devotes his oversizedc, rambling "opposition"  to an angry polemic against his former religion, and a vituperative, thoroughly unsubstantiated attack on Judge Thomas' integrity and character.  Armstrong's "opposition" is a diatribe, not a brief; his "supporting" documents are embittered, undocumented allegations, not evidence.

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The Church sustained its burden to show its entitlement to judgment as a matter of law through defendant's  admissions and the preclusive effects of the prior judgment. Armstrong has come forward with vitriolic bombast, but not with evidence or law to oppose.  Accordingly, this motion should be granted, and judgment should be entered as prayed.

ARGUMENT

A. There are No Undisputed Facts; Plaintiff is Entitled to Judgment on The First Cause of Action as a Matter of Law

This Motion is predicated upon 11 Undisputed Facts, the following 9 of which Armstrong has admitted:

Fact No. 2:  That the Church filed breach of contract actions based upon Armstrong's breach of the Agreement which were consolidated in Church of Scientology International v. Armstrong Case Nos. 152229 and 157680 ("Consolidated Action");

Fact No. 3:  That in the Consolidated Action Plaintiff sought liquidated damages as well as injunctive relief regarding future breaches of ¶7(D) of the Agreement;

Fact No. 4:  That Armstrong cross-complained against Plaintiff in the Consolidated Action, challenging the validity of the Agreement on a number of grounds;

Fact No. 5:  That following a motion for summary adjudication of issues, the Court ordered and found that Armstrong freely and voluntarily entered into the Agreement; that the Church performed  all of its obligations under the Agreement; that Armstrong received substantial consideration for the promises he made in the Agreement; that Armstrong repeatedly breached the Agreement; that Armstrong reiterated that he intended to continue breaching the Agreement;

Fact No. 6:  That the Order of Permanent Injunction was incorporated into a judgment against Defendant Armstrontg;

Fact No. 7: That Plaintiff thereafter applied for an order holding Defendant in

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contempt for violating the Order of Permanent Injunction;

Fact No. 8:  That the 131 postings in which this application was based were publications in which Armstrong discussed his and others experience in the Church of Scientology and discussed his and others experience in the Church  of Scientology and discussing information he had concerning the Church of Scientology;

Fact No. 10: That the Court issued a decision in an Order of Contempt finding that Armstrong had violated the injunction by engaging in those breaches, which constitute 131 of the 201 breaches of the Agreement which are at issue here;

Fact No. 11:  That Armstrong admitted committing the 201 breaches of the Agreement alleged in the First Cause of Action.

There are simply no material facts in dispute. Absent valid defenses, Plaintiff is entitled to Judgment as a matter of law.

B. Armstrong's Affirmative Defenses are barred by the Doctrine of Collateral Estoppel.

"The doctrine of collateral estoppel can be simply stated: any issue necessarily decided in the litigation of a cause of action that has been finally determined by a court of competent jurisdiction is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different cause of action." First N.B.S. Corp. v. Gabrielsen, 179 Cal. App. 3d1189, 225 Cal. Rptr. 254 (1986), citing Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal. 2d 601, 604 (1962); Bernhard v. Bank of America, 19 Cal. 2d 807, 810-811 (1942); City of Los Angeles v. City of San Fernando, 14 Cal. 3d 199, 227 (1975); Henn v. Henn, 26 Cal. 3d 323, 329-330 (1980).)

Here, as in Gabrielson, the doctrine of collateral estoppel applies (1) if the issues decided in the Consolidated Action are identical with the ones presented in this action; (2) if there was a final judgment on the merits in the Consolidated Action; and (3) if Armstrong, the party against whom the doctine is asserted, was a party to that action. Gabrieson, supra, citing Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., supra, 58 Cal. 2d at p. 604.  If each of these three questions can be answered affirmatively, collateral estoppel bars relitigation of these issues. See Teitelbaum Furs,

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Inc. v. Dominion Ins. Co., Ltd., supra, 58 Cal. 2d at p. 604.  Judgment in the Consolidated Action is final and Armstrong was a party to both actions.  As such, the only question to be resolved is whether the issues in the two actions are identical.  That question is easily answered.  Both actions were for breach of paragraph 7(D) of the Agreement.  In the Consolidated Action, Armstrong argued, as he does now, that the Agreement was the result of fraud, duress and criminal conspiracy by the Church.  Compare, Declaration of Andrew H. Wilson in Support of Plaintiff's Motion for Summary Judgment, Exhibit E, Verified Cross-Complaint for Abuse of Process, with Declaration of Defendant Gerry Armstrong in Support of Opposition to Motion for Summary Judgment ("Armstrong Decl"), 8-16 and Exhibit A thereto.  He reiterated these arguments in opposition to the Church's motion to have him held in contempt of Court.  See, Armstrong Decl., Exhibit K.

To the voluminous, repetitious charges of harassment, intimidation and conspiracy which he made in defending the Consolidated Action, Armstrong now adds a gratuitous charge of conspiracy and violation of Federal law against the judge who found his defenses inadequate in the Consolidated Action.  He asserts that Judge Thomas must have been intimidated by the Church into ruling against him.  Opposition of Defendant Gerry Armstrong for Motion for Summary judgment, pg. 8, ln. 12-21.  These defamatory allegations, patently ridiculous though they are, cannot form the basis for an affirmative defense.  Armstrong has offered no authority, or even a coherent argument, for the proposition that he is entitled to relitigate the issues raised by his affirmative defenses.  There is no authority, nor is there any good argument to be made.  Armstrong offers no evidence either, only unsupported, rambling allegations.  As the Court Stated in Gabrielson, supra,"[T]he doctrine of collateral estoppel is based on the sound public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy." 179 CalApp3d at 1197.  That is exactly what the Church asks the Court to do here.

CONCLUSION

There is no dispute that Armstrong committed the acts alleged in the Complaint.  He boasts of it. There is no denying that these acts are breaches of the Agreement, which provides for liquidated damages for each breach.  Armstrong does not dispute this.  Armstrong's only defense is to repeat his mantra of fraud, duress, persecution and harassment, affirmative defenses which he is

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collaterally estopped from relitigating.  His addition of salacious charges against a respected and admired jurist changes nothing.  It only emphasizes Armstrong's contempt for any agreement which he finds inconvenient, for the judicial process in general and for any judge who disagrees with him.  The motion should be granted.

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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 March 15, 2004, I served the foregoing document(s) described as follows:

CHURCH OF SCIENTOLOGY INTERNATIONAL'S REPLY TO OPPOSITION OF GERALD ARMSTRONG TO MOTION FOR SUMMARY JUDGMENT

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:

XX BY U.S. MAIL:

XX BY FEDERAL EXPRESS OR OVERNIGHT COURIER

      BY HAND DELIVERY

Gerald Armstrong
1UP-45950 Alexander Avenue
Chilliwack, B.C. V2P 1L5
Canada

Executed on March 15, 2004, 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.

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