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

INTRODUCTION

Defendant Gerald Armstrong ("Armstrong") answered the Complaint herein, admitting the commission of the 201 breaches of contract asserted therein and asserting forty four affirmative defenses. They are identical to the forty three affirmative defenses which he raised in defending the prior action ("Prior Action") which Plaintiff brought to recover for breach of the very agreement at issue here, save for the addition of a defense based on the Thirteenth Amendment. In the Prior Action, this Court adjudicated those defenses against Armstrong, entered a permanent injunction, a final judgment and an order holding Armstrong in contempt for violation of the injunction. Armstrong's subsequent appeal was dismissed. Accordingly, Plaintiff hereby moves for an order precluding the introduction of any evidence on those affirmative defenses on the ground that Armstrong those defenses were either raised and adjudicated against Armstrong

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in the Prior Action or are based on facts which were alleged by Armstrong in that action and could have been raised by Armstrong in the Prior Action. Thus, Armstrong is collaterally estopped from relitigating them as defenses to this action.

ARGUMENT

A. The Facts Upon Which Armstrong's Affirmative Defenses are Based Were Alleged and At Issue in the Prior Action and the Affirmative Defenses Raised There Are Virtually Identical to those Raised Here.

Armstrong's Answer in the Prior Action asserted forty three affirmative defenses, which Mr. Armstrong also asserts here. Compare Plaintiff's Exhibits 3 and 11. The Answer in this action, Exhibit 11, repeats what Armstrong has repeatedly alleged since the Prior Action was filed:

The Agreement was signed under duress; Armstrong's counsel was pressured, and in turn pressured Armstrong, into signing the Agreement by telling Armstrong that it was unenforceable;

The Agreement was procured by fraud; The Agreement is illegal because it infringes on Armstrong's First Amendment rights; The Agreement violates Armstrong's right to freedom of religion, because his religion, the Church of Wogs, exists to fight Scientology.

All of these defenses and the factual assertions upon which they were based were adjudicated against Armstrong in the Prior Action. There, Judge Thomas granted the Church's motion for summary judgment, ruling that the Agreement was not entered into under duress, not induced by fraud, did not fail for lack of mutuality, did not infringe on First Amendment rights, and that the liquidated damages provision was valid. Plaintiff's Exhibit 6, pg. 2, ln. 19 - pg. 4, ln.

12. The Order of Permanent Injunction entered October 17, 1995 by Judge Thomas provided that the Agreement had been freely and voluntarily entered into, Plaintiff's Exhibit 7, and Judgment was entered on May 2. Plaintiff's Exhibit 8. The Order of Contempt issued by Judge Smith in 2001 references the judgment, provides that the Agreement was valid when entered into and remains enforceable and then holds Armstrong in contempt for the 131 breaches upon which Plaintiff seeks to recover here. Plaintiff's Exhibit 11, ¶ 2 at pg. 2, ln. 16.

The only new affirmative defense raised by Armstrong is based on the Thirteenth Amendment's abolition of slavery, which is based upon the same facts as the other

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affirmative defenses.

B. Armstrong is Collaterally Estopped From Litigating Any Affirmative Defenses Which Were or Could Have Been Raised in the Prior Action.

The principles of res judicata and collateral estoppel, which work to establish the elements of Plaintiff's claim, See, Plaintiff's Issue Conference Statement, Section 2 at pg. 3, Ln. 6-13 and cases cited therein, also apply to preclude introduction of evidence of affirmative defenses based on issues finally adjudicated in prior proceedings. Torrey Pines Bank v. Superior Court of San Diego County, 216 Cal. App. 3d 813, 821 (1989) [Dismissal with prejudice of action bars assertion of affirmative defenses based on identical facts.]. In Torrey Pines, the prior action ended with a dismissal with prejudice, which the Court held sufficient. Here, the prior action ended in a final judgment on the merits after entry of orders granting summary judgment and imposing a permanent injunction. Armstrong's appeal was dismissed.

Torrey Pines relied on Hamilton v. Carpenter, 15 Cal. 2d 130 (1940), in which the Supreme Court stated the applicable rule as follows:

It is the general rule, applicable to the facts of this case, that a final judgment on the merits in a prior action is conclusive between the same parties in a subsequent action involving the same subject matter. Such a judgment was tendered in bar of the present affirmative defenses based on the issues thereby determined. When received in evidence it was conclusive between the parties hereto upon those same matters. (citations) The issues of fraud very definitely were litigated by these parties in the prior action, both in the trial court and on appeal, and the court properly refused to receive evidence on the same issues alleged in the affirmative defenses of the defendant herein. Its finding on the issue of res judicata is supported by the judgment roll in the former action which was introduced in evidence in the present action. 15 Cal 2d at 133.

This rule is directly applicable here. The affirmative defenses alleged here are either identical to those alleged in the Prior Action, or are based on the same facts as those which

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Armstrong alleged in support of his affirmative defenses in the Prior Action. In fact, whether a particular affirmative defense was actually raised in the Prior Action is of no consequence. When an issue has been litigated, all inquiry respecting the same matter is foreclosed, not only as to matters heard but also to matters that could have been heard in support of or in opposition thereto. Gates v. Superior Court of Los Angeles County, 178 Cal. App. 3d 301, 308 (1986) ["...if the second action involves a right, title or issue as to which the judgment in the first action is a conclusive adjudication, the estoppel so far as that right, title or issue is concerned must likewise extend to every matter which was or might have been urged to sustain or defeat the determination actually made."]

CONCLUSION

Armstrong's affirmative defenses either were, or could have been, raised by Armstrong in the Prior Action and/or are based upon facts identical to which Armstrong raised in the Prior Action. Either way, he should be precluded from introducing evidence on them.

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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 April 2, 2004 I served the foregoing document(s) described as follows:

PLAINTIFF CHURCH OF SCIENTOLOGY INTERNATIONAL'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF ARMSTRONG'S AFFIRMATIVE DEFENSES

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 U.S. MAIL:

  XX        BY FEDERAL EXPRESS OR OVERNIGHT COURIER

               BY HAND DELIVERY

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

Executed on April 2, 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.