Gerry Armstrong
#2-46298 Yale Road
Chilliwack, B.C. V2P 2P6
Canada
gerry@gerryarmstrong.org
604-703-1373
In Propria Persona

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF MARIN

Plaintiff Scientology’s attorney of record herein Kendrick Moxon has advised Defendant Gerry Armstrong by e-mail that on September 7, 2007 Mr. Moxon will bring an ex parte application to strike Armstrong’s motion to set an evidentiary hearing pursuant to C.C.C. § 1670.5 now set for hearing on October 5, 2007 on the grounds that this Court has already ruled the issue of the injunction and the contract that resulted in it is res judicata. Armstrong opposes Scientology’s motion based on the fact that regardless of how Scientology interprets any rulings this Court has made on the injunction or the contract or the application of res judicata, this Court has clearly determined that a clause or clauses of the contract are unconscionable, and consequently Armstrong, and Scientology, have the right provided

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them both by C.C.C. § 1670.5 to a reasonable opportunity to present evidence as to the contract’s commercial setting, purpose, and effect. Armstrong offers that, given the circumstances of the case, such an opportunity is best facilitated by way of an evidentiary hearing on these three areas C.C.C. § 1670.5 specifies.

This opposition to Scientology’s motion to strike is supported by the declaration of Gerry Armstrong (“GA Dec”) that follows and the exhibit thereto; Armstrong’s motion to set an evidentiary hearing (“Armstrong’s motion”), his opposition to Scientology’s motion to reinstate sentences (“Armstrong’s opposition”) and his declaration in support (“Armstrong’s declaration”) all filed August 31, 2007; and the record in this case and the consolidated cases.

Mr. Moxon states:

At the time of the hearing on Friday, September 7th at 9:00 before Judge Duryee, I also intend to bring an ex parte application to strike your motion for an evidentiary hearing in October, on the grounds that the Superior Court has already ruled the issue of the injunction and the settlemnet agreement it is based upon, is res judicata.  The Court of Appeals also noted it was res judicata.  You misapprehended the court's comments at the 2004 trial on "unconsionability", as the court merely said it would be unconsionable to assess more than $500,000 more at this point.  The court did not say the settlemnet agreement or the injunction was unconsionable.(GA Dec, Ex. A)

Armstrong did not, as Mr. Moxon asserts, misapprehend this Court’s comments on unconscionability either at the trial (Armstrong’s declaration, Ex. B, 56:20-23) or in the order granting plaintiff’s motion for judgment (Armstrong’s declaration, Ex. C). Armstrong identified and quoted the Court’s comments fully and accurately in his motion. This Court did not merely say that it would be unconscionable to assess more than $500,000 more at this point. This Court said what Armstrong said in his motion:

At trial on April 9, 2004, this Court stated:

MR. ARMSTRONG RECEIVED A BENEFIT UNDER THE SETTLEMENT AGREEMENT OF $800,000. AND I THINK IT WOULD BE UNCONSCIONABLE TO PUNISH HIM BEYOND WHAT THE BENEFIT WAS THAT WAS CONFERRED TO HIM. GA Dec, 2:11-19, Ex. B, 56:20-23

On May 20, 2004 this Court issued an order, which became the judgment in the case, and which states in pertinent part:

After hearing opening statements of the parties, taking judicial notice of thevarious pleadings and papers on file in the consolidated actions Church of Scientology

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International v. Armstrong, Case No. 152229 and Church of Scientology International v. Armstrong, Case No. 157680, the Court made the following ruling: Mr. Armstrong received a benefit under the settlement agreement of $800,000. It would be unconscionable to punish him beyond what the benefit was that was conferred to him. Armstrong was previously sanctioned in the sum of $300,000. GA Dec, 2:21-3-5, Ex. C

Mr. Moxon’s pronouncement that this Court did not say the contract or the injunction was unconscionable is irrelevant. What the Court did say was that clauses of the contract were unconscionable, or it appeared to the Court that they may be. The Court specifically ruled the liquidated damages clause unconscionable, and the Court limited the application of that unconscionable clause as to avoid an unconscionable result. The Court also recognized, essentially, that the injunctive relief clause was unconscionable, and the Court, essentially, also limited the application of that unconscionable clause as to avoid an unconscionable result.

The injunctive relief clause, which resulted in the injunction, shares with the liquidated damages clause the unconscionable concept of endlessness, along with one-sidedness. According to Scientology’s and, tragically, former Marin Superior Court Judge Gary W. Thomas’ interpretation of the contract, Scientology can punish Armstrong with jail sentences and fines until the end of time, just as Scientology can collect $50,000 per utterance in liquidated damages without limit. Scientology has enough of Armstrong’s violations of the injunction stacked up and ready to be punished to file a dozen applications for orders to show cause re contempt against him in this Court every court day until he’s dead.

C.C.C. § 1670.5 states:

(a) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

(b) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect to aid the court in making the determination.

The appearance to this Court that just one clause may have been unconscionable was all it took to give Armstrong, and Scientology, the remedy C.C.C. § 1670.5(b) mandates. But it was a great deal more than an appearance of unconscionability, because this Court ruled in its judgment that unconscionability was

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present, in two clauses. It is hard to imagine a stronger identification of unconscionability or a greater need for the C.C.C. § 1670.5(b) remedy.

Add to this, moreover, Armstrong’s own claim to this Court that the liquidated damages, silence, non-assistance and injunctive relief clauses are unconscionable, and it becomes clear that to deny him the opportunity C.C.C. § 1670.5(b) affords him would be unconscionable.


When it can be reasonably claimed that it appeared to this Court that a clause of Scientology’s contract was unconscionable was April 9, 2007.  As Armstrong details in his opposition and motion, he has never been afforded the reasonable opportunity that C.C.C. § 1670.5(b) states he must be afforded. (Armstrong’s opposition, Armstrong’s motion) He has never had the day in court that he must be afforded. Res judicata and collateral estoppel cannot be used to prevent that day in court that has never occurred from occurring. Nor can Scientology res judicata this Court’s conscience from being shocked. The Court of Appeal never addressed the issue of the C.C.C. § 1670.5 remedy, which
Armstrong argued, because Scientology voluntarily dismissed its appeal. In any event, the Court of Appeal, of course, cannot conduct such a proceeding, and Armstrong’s motion to set an evidentiary is properly now before this Court, which can conduct it.

Armstrong apprehends very well that this Court did not say the contract in its entirety, each and every one of its clauses, is unconscionable, and did not say that the injunction is unconscionable. Neither is Armstrong claiming that the whole contract is unconscionable; only that certain clauses, specifically liquidated damages, silence, non-assistance and injunctive relief, are unconscionable and consequently lawfully judicially unenforceable. Armstrong considers that the
contract’s clauses that were reasonably necessary to settle his then pending lawsuit and to end the parties’ claims up to the date of the settlement are conscionable, and lawfully judicially enforceable. Armstrong claims, as he inarguably has the right to do, that the injunction is an unconscionable result; but he is aware that the Court has not so specifically ruled.

Armstrong states in his opposition:

At an evidentiary hearing on the contract’s commercial setting, purpose and effect, Armstrong will demonstrate that the injunction in this case is itself an unconscionable result from the application of the contract’s unconscionable clauses. […] Armstrong also contends that if he is permitted, as by statute he must be, to present evidence as to the contract’s commercial setting, purpose and effect, he will demonstrate that not only would it be unconscionable to punish him beyond what the benefit was that
was conferred to him in 1986 in settling his claims against Scientology, but it is also unconscionable to punish him below or up to that benefit. (Armstrong’s opposition, 5:11-6:20)

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At such a hearing, Scientology has a right, identical to Armstrong’s right, to present evidence as to its contract’s commercial setting, purpose, and effect to aid the Court in making the determination Scientology seeks: that all the contract’s clauses, and specifically liquidated damages, silence, non-assistance and injunctive relief, are not unconscionable but conscionable, and lawfully judicially enforceable. Scientology does not have a right lawfully, however, to prevent Armstrong from obtaining the remedy provided to him and Scientology identically by C.C.C. § 1670.5(b).

Scientology’s ruler David Miscavige, who has directed the litigation and extra-litigation actions against Armstrong for twenty-five years, is terrified of Armstrong having his day in court. Many of Mr. Miscavige’s cohorts, including Scientology attorneys, share his fear, and also share his unconscionable intention and actions to prevent that day in court from happening. Their fear of the justice that a day in court holds is no reason to deny it to their victim. Given this Court’s rulings and given the real circumstances in this case, which Scientology seeks to suppress and hide here under the completely inapplicable doctrine of res judicata, the organization’s ex parte application is yet another unconscionableness, and the prohibitive cost to express courier this opposition, the time wasted, and the threat and stress are more unconscionable results, more lawfully judicially impermissible punishment.

Mr. Miscavige and the people who run Scientology with him have given no indication that, although they apprehend their unconscionable actions and intentions in their war on Armstrong, they are willing to change their unconscionable ways. They pronounce the unconscionable conscionable, and want to get this Court, through one unconscionable stratagem or another, to prostrate itself and agree.

Armstrong asks this Court to let Scientology know that he should get his day in court and to deny Scientology’s ex parte application to strike his motion.

Dated:  September 5, 2007

Respectfully submitted, Gerry Armstrong

Declaration of Gerry Armstrong

I, Gerry Armstrong, declare:

-----Original Message-----
From: kmoxon@earthlink.net [mailto:kmoxon@earthlink.net]
Sent: Tuesday, September 04, 2007 1:45 PM
To: Gerry Armstrong
Subject: Ex parte application

Mr. Armstrong,

At the time of the hearing on Friday, September 7th at 9:00 before Judge Duryee, I also intend to bring an ex parte application to strike your motion for an evidentiary hearing in October, on the grounds that the Superior Court has already ruled the issue of the injunction and the settlemnet agreement it is based upon, is res judicata.  The Court of Appeals also noted it was res judicata.  You misapprehended the court's comments at the 2004 trial on "unconsionability", as the court merely said it would be unconsionable to assess more than $500,000 more at this point.  The court did not say the settlemnet agreement or the injunction was unconsionable.

Please advise of your position on this and whether you intend to appear to oppose the motion.

Kendrick Moxon
MOXON & KOBRIN
3055 Wilshire Blvd., Suite 900
Los Angeles, CA 90010
(213) 487-4468

I declare under penalty of perjury pursuant to the laws of the State of California, the United States and Canada that the foregoing is true and correct.

Executed this 5th day of September 2007 at Chilliwack, B.C., Canada.

Gerry Armstrong

PROOF OF SERVICE

I am over the age of eighteen years and am not a party to the within action. My business address is #2-46298 Yale Road, Chilliwack, B.C. V2P 2P6 Canada

I served the following document:

DEFENDANT GERRY ARMSTRONG’S OPPOSITION TO PLAINTIFF SCIENTOLOGY’S EX PARTE APPLICATION TO STRIKE ARMSTRONG’S MOTION TO SET AN EVIDENTIARY HEARING PURSUANT TO C.C.C. § 1670.5 ON THE UNCONSCIONABILITY OF PLAINTIFF SCIENTOLOGY’S CONTRACT; DECLARATION OF GERRY ARMSTRONG IN SUPPORT

on the following person on the date set forth below, by UPS Overnight Courier to the addressee below:

Kendrick L. Moxon, Esquire
Moxon & Kobrin
3055 Wilshire Blvd., Suite 900
Los Angeles, CA 90010

and by e-mail to: kmoxon@earthlink.net

I declare under penalty of perjury under the laws of California, the United States and Canada that the above is true and correct.

Executed on September 5, 2007 at Chilliwack, B.C., Canada.


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Caroline Letkeman