Kendrick Moxon, SBN 128240
MOXON & KOBRIN
3055 Wilshire Blvd. Suite 900
Los Angeles, CA 90010
213-487-4468
213-487-5385(fax)

Attorneys for Plaintiff
CHURCH OF SCIENTOLOGY INTERNATIONAL

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MARIN

Plaintiff, Church of Scientology International, herewith Opposes defendant Gerry Armstrong's "Motion to Set an Evidentiary Hearing Pursuant to §1670.5 on the Unconscionability of Plaintiff Scientology's Contract."

I — INTRODUCTION

Armstrong's continuing efforts to re-litigate matters already adjudicated are frivolous, and destroy the time of the Court and parties alike. The motion should be rejected and Armstrong censured.

Armstrong has repeatedly lost on the merits of the issues he raises. Twenty years ago Armstrong accepted a large amount of money to settle disputed issues. He spent the money and refuses to comply with the terms of the agreement for which he was paid. The agreement was held to be valid and enforceable and an injunction issued enforcing the terms thereof — which Armstrong has repeatedly and flagrantly violated and for which he

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has repeatedly been held in contempt.

This Court subsequently held that Armstrong's arguments regarding the purported lack of enforceability of the settlement agreement and injunction were barred by res judicata and collateral estoppel. The Court of Appeals specifically agreed. Thus, it is the law of the case that the issues Armstrong again raises, are res judicata, and may not be litigated again.

Moreover, Armstrong's assertions that this Court ruled that the agreement was unconscionable is a falsehood. The Court never ruled, inferred or suggested the injunction and underlying settlement agreement were unconscionable.

The motion for an evidentiary hearing for these already-adjudicated issues, should be denied.

II  -  THE ISSUES ARMSTRONG SEEKS TO LITIGATE ARE BARRED BY RES JUDICATA

In an attempt to avoid the effect of rulings by judges of this Court, which rulings were affirmed by the Court of Appeals, Mr. Armstrong seeks once again to reargue the merits of his position regarding whether an injunction should have been issued against him to enforce the 1986 settlement between the parties, rejected years ago.

As far back as July 1992, Armstrong filed his Answer to the Complaint seeking damages for his violation of the settlement agreement, asserting as a Twentieth Affirmative Defense, that "Plaintiff is barred from bringing this action.... on the grounds that the settlement agreement is unconscionable." (Ex. A.)  All of the central issues respecting enforceability of the contract were thereafter litigated and it was adjudicated that the liquidated damages provisions of the settlement agreement were valid and enforceable; that the agreement was not created by duress; that the agreement was not created by fraud; and that Armstrong knowingly bargained away and legally waived his First Amendment rights in accepting the funds provided in settlement. (Ex. B, Summary Judgment Ruling, October 17,1995.)  That order is final.

By order filed May 2,1996, following the issuance of a permanent injunction

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against Armstrong and numerous violations of the settlement agreement, the Court ruled that there was no defense to the action (Ex. C) (which would include the issue of"unconscionability"), and Armstrong's appeal of that ruling was dismissed. (Ex. D.) Indeed, as Mr. Armstrong admitted in his Opposition to the Church's motion for reinstatement of the sentences of contempt, he "has been claiming and complaining, essentially that the contract contains unconscionable clauses with unconscionable results from the day in December 1986 when [the settlement agreement] was first given to him to sign." (Opposition, p. 4.) In each effort he has lost. These orders have been final for more than a decade.

And, as noted by the Court of Appeals in responding to the Complaint in this action, Armstrong "raised numerous affirmative defenses including unconscionablility of the agreement and invalidity of the liquidated damages provision." (Ex. E, Slip Opinion at 4.) The Court of Appeals stated, in discussing the history of this case, that "[t]he court found that Armstrong waived his First Amendment rights by signing the settlement agreement and rejected various challenges to the liquidated damages provision." (Id., at 2.) The Court of Appeals also recognized that this Court ruled that its rulings rejecting Armstrong's defenses to the injunction enforcing that agreement are res judicata and that Armstrong is accordingly estopped from again re-litigating this issue he has repeatedly lost. (Id., at 6.)

In addressing Armstrong's ubiquitous arguments that the settlement was unlawful because the injunction requiring compliance with the settlement was unlawful, the Court of Appeals has specifically found that the injunction against him was "final."  It stated:

Armstrong makes several arguments challenging the validity of the contempt orders.... Armstrong, however, is foreclosed from challenging the merits of the contempt orders in this writ proceeding [footnote noting that he did not appeal these rulings]. The contempt orders are final. (Ex. E, Slip Opinion, p. 6.)

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These rulings by the Court of Appeals constitute the "law of the case," and are not susceptible to reversal by the trial court - even if this Court was inclined to reverse its own ruling affirmed by the Court of Appeals. Under the law of the case doctrine, 'the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case." In re Marriage of Balcof (2006) 141 Cal.App.4th 1509,47 Cal.Rptr.3d 183, Joyce v. Simi Valley Unified
School District (2003) 110 Cal.App.4th 292,304,1 Cal.Rptr.3d 712, 721-722 ("Litigants are not free to continually reinvent their position on legal issues that have been resolved against them by an appellate court.")

III — ARMSTRONG'S ASSERTIONS OF A FINDING OF"UNCONSIONABILITY" ARE UNTRUE

Even if Armstrong retained the ability to address the merits, the central assertion of his Opposition is simply false. Armstrong claims that this Court found some aspect of the settlement agreement to be unconscionable, thus giving him, he asserts, the ability to re-argue the propriety of the settlement agreement. The Court made no such finding.

Rather, Armstrong illogically latches upon the Court's choice of words in finding that a"punishment" greater than $800,000 against Armstrong for violating the injunction would be "unconscionable" as this was the amount Armstrong received in the settlement agreement many years ago. That is certainly not a finding that the settlement agreement is unconscionable — indeed, by enforcing the agreement and injunction, the Court effectively reaffirmed the agreement and the injunction, but merely limited the amount of damages the Court deemed appropriate at the 2004 hearing as the maximum damages arising out of Armstrong's breaches of the agreement and of the injunction.¹

In any event, the issue of unconscionability and all other defenses to the settlement

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¹ Certainly the Court would not fmd the settlement agreement itself to be "unconscionable," and at the same time award $500,000 against Armstrong for the continuing breaches thereof.

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agreement and injunction are, as addressed above, unquestionably final.

III — CONCLUSION

Armstrong's motion for an evidentiary hearing should be denied.

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PROOF OF SERVICE

I am employed in the County of Los Angeles, State of California. I am over the age of eighteen (18) years and not a party to the within action.

On September 21, 2007, I served the foregoing document described as:

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SET AN EVIDENTIARY HEARING PURSUANT TO CCP §1670.5

by Federal Express, prepaid, on interested parties in this action as follows:

Gerald Armstrong
#2-46298 Yale Rd.
Chilliwack, B.C. V2P 2P6
Canada

Executed on September 21, 2007 at Los Angeles, California.

I declare in accordance with the laws of the State of California, under penalty of perjury, that the foregoing is true and correct.

(signed)__________
Kendrick Moxon

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