||||| From: ptsc Newsgroups: alt.religion.scientology Subject: Motion to Strike (frivolous attempt by Scientology to set aside Wollersheim judgment) Date: Wed, 15 May 2002 12:40:59 -0400 Organization: ARS: Perhaps the Most Malignant Newsgroup on Usenet Message-ID: X-Newsreader: Forte Agent 1.8/32.553 MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit X-Complaints-To: newsabuse@supernews.com Lines: 1063 Path: news2.lightlink.com!news.lightlink.com!gail.ripco.com!news.chaven.com!atl1-feed1.news.digex.net!intermedia!dca6-feed2.news.algx.net!allegiance!feed2.news.rcn.net!rcn!news-out.visi.com!hermes.visi.com!news.tele.dk!small.news.tele.dk!64.152.100.70!peer1-sjc1.usenetserver.com!usenetserver.com!sn-xit-04!sn-post-01!supernews.com!corp.supernews.com!not-for-mail Xref: news2.lightlink.com alt.religion.scientology:1515817 This document from the old FACTnet files describes the sort of idiotic nonsense the cult tried in the years following their humiliating defeat at the hands of Larry Wollersheim. It is a motion filed by Dan Leipold (in 1993) to strike a particularly vacuous Scientology claim that the judgment should be set aside because the late Ronald Swearinger had allegedly done something wrong that somehow invalidated the judgment. Of course they waited until Swearinger was conveniently dead, being losers, liars and cowards. ------------------------------------------------------------------- F.A.C.T.Net, Inc. (Fight Against Coercive Tactics Network, Incorporated) a non-profit computer bulletin board and electronic library 601 16th St. #C-217 Golden, Colorado 80401 USA BBS 303 530-1942 FAX 303 530-2950 Office 303 473-0111 This document is part of an electronic lending library and preservational electronic archive. F.A.C.T.Net does not sell documents, it only lends them according to the terms of your library cardholder agreement with F.A.C.T.Net, Inc. ===================================================================== \Gold2 (motion to strike)\Page.00001 1 Daniel Leipold Hagenbaugh & Murphy 2 701 South Parker Street, Suite 8200 Orange, California 92668 3 (714) 835-5406 4 Mark Goldowitz 1611 Telegraph Ave., Suite 1200 5 Oakland, California 94612 (510) 835-0850 6 Special Counsel for Defendant Lawrence Wollersheim 7 8 Lawrence Wollersheim P.O. Box 10910 9 Aspen, Colorado 81612 (303) 650-3336 10 In Pro Per 11 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF LOS ANGELES 15 CHURCH OF SCIENTOLOGY OF No. BC 074815 16 CALIFORNIA, ) ) DEFENDANT'S SUPPLEMENTAL 17 Plaintiff, ) MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT OF 18 vs. ) DEFENDANTIS RENEWED SPECIAL ) MOTION TO STRIKE 19 LARRY WOLLERSHEIM, ) 20 Defendant. ) Date: December 9, 1993 21 ) Time: 9:00 a.m. Dept: 14 22 23 24 25 26 27 28 Defendant's Suppl. Memorandwn, Special Motion to Strike, Scientology v. Wollersheim Page i \Gold2 (motion to strike)\Page.00002 1 TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . 1 3 PROCEDURAL BACKGROUND TO THE RESETTING OF THIS MOTION . . 1 I. THIS SPECIAL MOTION TO STRIKE IS AUTHORIZED BY C.C.P. 9 5 425.16, AND TO DEFEAT THE MOTION PLAINTIFF MUST SHOW A PROBABILITY THAT IT WILL PREVAIL ON ITS CLAIMS. . . . . 3 6 A. THIS SPECIAL MOTION TO STRIKE IS AUTHORIZED BY 9 7 425.16. PLAINTIFF'S COMPLAINT ARISES FROM THE WOLLERSHEIM V. CHURCH OF SCIENTOLOGY LAWSUIT, 8 WHICH IS PETITION ACTIVITY EXPRESSLY PROTECTED UNDER 8 425.16. . . . . . . . 3 9 1. LEGISLATIVE INTENT, THE PLAIN MEANING RULE 10 AND RELATED PRINCIPLES OF STATUTORY CONSTRUCTION . . . . 3 11 2. THE PURPOSES OF P 425.16 . . . . . . . . . . . 4 12 3. FILING AND MAINTAINING A LAWSUIT ARE 13 ACTIVITIES PROTECTED BY THE EXPRESS LANGUAGE OF B 425.16 . . . . 5 14 4. THE LEGISLATIVE HISTORY OF 0 425.16(e) . . . . 8 15 5. THE MAIN ACTION SOUGHT TO ENFORCE A REMEDY 16 FOR THE ABUSE OF COERCIVE PSYCHOLOGICAL TECHNOLOGIES, WHICH IS AN ISSUE OF PUBLIC 17 INTEREST, AND THEREFORE THE MAIN ACTION WAS ACTIVITY PROTECTED BY 9 425.16. 9 18 B. THE REQUIREMENT IN C.C.P. 9 425.16(b) THAT 19 PLAINTIFF ESTABLISH "THAT THERE IS A PROBABILITY THAT PLAINTIFF WILL PREVAIL ON THE CLAIM" REQUIRES 20 PLAINTIFF TO SHOW THAT IT WILL MORE LIKELY THAN NOT PREVAIL. . . . . . . . . . . . . . . . . . . . 11 21 II. THIS MOTION SHOULD BE GRANTED BECAUSE PLAINTIFF CAN NOT 22 DEMONSTRATE A PROBABILITY THAT IT WILL PREVAIL ON ITS CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . 11 23 A. THIS COURT HAS NO JURISDICTION OVER THIS ACTION 24 BECAUSE IT IS MERELY A DISGUISED ATTEMPT TO BRING AN UNTIMELY MOTION FOR A NEW TRIAL. SCIENTOLOGY 25 IS NOW BARRED FROM RAISING THIS CLAIM BY COLLATERAL ESTOPPEL. . . . . . . . . . . . . . . . 11 26 B. THIS ACTION IS BARRED BECAUSE IT IS UNTIMELY AND 27 PLAINTIFF HAS NOT EXERCISED DUE DILIGENCE IN RAISING THESE CLAIMS. 11 28 Defendant's Suppl. Memorandum, Special Motion to Strike, Scientology v. Wollersheim Page ii \Gold2 (motion to strike)\Page.00003 1 C. PLAINTIFF DOES NOT PLEAD AND CAN NOT SHOW THAT IT HAS A MERITORIOUS DEFENSE IN THE MAIN ACTION. . . . 11 2 D. PLAINTIFF'S COMPLAINT IS NOT SUFFICIENT TO SET 3 ASIDE THE JUDGMENT BECAUSE IT ALLEGES AT MOST INTRINSIC FRAUD. . . . . . . . . . . . . . . . . . 11 4 E. PLAINTIFF CAN NOT DEMONSTRATE A PROBABILITY THAT 5 IT WILL PREVAIL ON ITS CLAIM IN THIS ACTION THAT JUDGE SWEARINGER WAS DISQUALIFIED. . . . . . . . . 12 6 F. THIS ACTION IS PART OF PLAINTIFF'S LITIGATION 7 STRATEGY TO USE THE COURTS TO HARASS ITS OPPONENTS AND OF ATTACKING JUDGES WHO RULE AGAINST THEM AS 8 BIASED. PLAINTIFF HAS UNCLEAN HANDS AND IS NOT ENTITLED TO THE EQUITABLE RELIEF SOUGHT. . . . . . 12 9 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 13 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant's Suppl. Memorandwn, Special Motion to Strike, Scientol_ogy v. Uollersheim Page iii \Gold2 (motion to strike)\Page.00004 TABLE OF AUTHORITIES 2 CA8ES 3 B.W. v. Board of Medical Quality Assurance (1985) 4 169 Cal.App.3d 219 [215 Cal.Rptr. 130] . . . . . . . . . . 5 5 California Manufacturers Association v. Public Utilities Commission (1979) 6 24 Cal.3d 836 [157 Cal.Rptr. 676] . . . . . . . . . . . . 5 7 Church of Scientoloqy of California v. Dell Publishinq Co., Inc. (N.D.Cal., 1973) 8 362 F.Supp. 767 . . . . . . . . . . . . . . . . . . . . . 10 9 City of Los Anqeles v. Superior Court (1985) 170 Cal.App.3d 744 [216 Cal.Rptr. 311] . . . . . . . . . . 3 10 Clements v. T. R. Bechtel Co. (1954) 11 43 Cal.2d 227 [273 P.2d 5] . . . . . . . . . . . . . . . . 5 12 DaFonte v. Up-Riqht, Inc. (1992) 2 Cal.4th 593 [7 Cal.Rptr.2d 238] . . . . . . . . . . . . 3 13 Dora v. Frontline Video, Inc. (1993) 14 15 Cal.App.4th 536 [18 Cal.Rptr.2d 790] . . . . . . . . . 11 15 Institute of Athletic Motivation v. University of Illinois (1980) 114 Cal.App.3d 1 [170 Cal.Rptr. 411] . . . . . . . . 11 16 17 In re Jeanice D. (1980) 28 Cal.3d 210 [168 Cal.Rptr. 455] . . . . . . . . . . . . 4 18 McMillon v. Superior Court (1984) 19 157 Cal.App.3d 654 [204 Cal.Rptr. 52] . . . . . . . . . . 4 20 Molko v. Holy S~irit for the Unification of World Christianity (1988) 21 46 Cal.3d 1092 [252 Cal.Rptr. 122] cert.den., 109 S.Ct. 2110 . . . . . . . . . . 10 22 Pasadena Police Officers Association v. City of Pasadena 23 (1990) 51 Cal.3d 564 [273 Cal.Rptr. 584] . . . . . . . . . . . . 5 24 Penasquitos v. Superior Court (1991) 25 53 Cal.3d 1180 [283 Cal.Rptr. 135] . . . . . . . . . . . . 4 26 People v. Craft (1986) 41 Cal.3d 554 [224 Cal.Rptr. 626] . . . . . . . . . . 3, 5 27 People v. Henson (1991) 28 231 Cal.App.3d 172 [282 Cal.Rptr. 222] . . . . . . . . . . 7 Defendant's Suppl. Memorandcrn, Special Motion to Strike, Scientology v. Wollersheim Page iv \Gold2 (motion to strike)\Page.00005 Press v. Lucky Stores. Inc. (1983) 2 34 Cal.3d 311 [193 Cal.Rptr. 900] . . . . . . . . . . . . 10 3 Rojo v. Kliqer (1990) 52 Cal.3d 65 [276 Cal.Rptr. 130] ) "' . . . . . . . . . . 3 4 Taylor v. Forte Hotels Intern. (1991) 5 235 Cal.App.3d 1119 [1 Cal.Rptr.2d 189] . . . . . . . . . 3 6 Unzueta v. Ocean View School District (1992) 6 Cal.4th 1689 [8 Cal.Rptr.2d 614] . . . . . . . . . . . . 4 7 White v. Sacramento County (1982) 8 31 Cal.3d 676 [183 Cal.Rptr. 520] . . . . . . . . . . . . 6 9 Williams v. Coombs (1986) 179 Cal.App.3d 626 [224 Cal.Rptr. 865] . . . . . . . 7 10 Wollersheim v. Church of Scientoloqv of California, 11 Los Angeles Superior Court No. 332027, (1989) 212 Cal.App.3d 872 [260 Cal.Rptr. 331], 3 Cal.App.4th 12 1290 [6 Cal.Rptr.2d 532] . . . . . . . . . . . . . 13 CONSTITUTION, STATUTES 14 First Amendment . . . . . . . . . . . . . . . . . . . . . . 1, 10 15 Civil Code 647(b) ....................... 6 16 Code of Civil Procedure 17 ~ 425.16 . . . . . . . . . . . . . . . . passim 9 425.16(a) . . . . . . . . . . . . . . . . . . . . . . 4 18 9 425.16(b) . . . . . . . . . . . . . . . . . . . . . . 6, 11 ~ 425.16(e) . . . . . . . . . . . . . . . . . . . . . . 6-9 19 Evidence Code 20 8 21 MISCELLANEOUS 22 California Style Manual (3d ed. 1986) 9 173 . . . . . . . . . . 7 23 Freeman, The Grammatical Lawyer (1979) 112 . . . . . . . . . . . 7 24 Garner, A Dictionarv of Modern Leqal Usaqe (Oxford Univ. Press 1987) 451 . . . . . . . . . . . . . . . . . . . . 7 25 The Chicaqo Manual of Style (13th ed. 1982) p.147, 95.68 . . . . 7 26 27 28 Defendant's Suppl. Memorandum, Special Motion to Strike, Scientology v. Wollersheim Page v \Gold2 (motion to strike)\Page.00006 1 INTRODUCTION. 2 Plaintiff Church of Scientology of California 3 ("Scientology") filed this action to set aside a $2.5 million 4 judgment which was upheld by the District Court of Appeal, in 5 Wollersheim v. Church of Scientolosv of California, Los Angeles 6 Superior Court No. 332027, (1989) 212 Cal.App.3d 872, 260 7 Cal.Rptr. 331, (1992) 3 Cal.App.4th 1290, 6 Cal.Rptr.2d 532 (the 8 "Main Action"), and which was recently upheld by the California 9 Supreme Court. 10 This action was brought almost seven years after the trial 11 verdict and eleven months after the allegedly "new evidence" upon 12 which it is based came to the attention of Scientology's 13 attorneys. It alleges improper conduct by trial judge Ronald 14 Swearinger, but was conveniently filed shortly after Judge 15 Swearinger died, so he can no longer defend himself. The action 16 is untimely, improper, without merit, and filed to harass 17 defendant. Because it arises from defendant's exercise of his 18 First Amendment right to petition the government (by filing a 19 lawsuit), this action is subject to a special motion to strike 20 under Code of Civil Procedure 9 425.16,' which should be granted 21 for the reasons set forth below. 22 23 PROCEDURAL BACKGROUND TO THE RESETTING OF THIS MOTION. 24 Defendant's special motion to strike was fully briefed, and 25 a hearing was held on it on July 2, 1993. This Court stayed all 26 27 isubsequent section references are to the Code of Civil 28 Procedure, unless otherwise noted. Defendant's Suppl. Memorandwn, Special Motion to Strike, Scientology v. Uollersheim Page 1 \Gold2 (motion to strike)\Page.00007 1 proceedings in this matter pending a final ruling from the 2 California Supreme Court on the petition for review that was then 3 pending in Wollersheim v. Church of Scientolosv, California 4 Supreme Court # SO 11790. This Courtis order permitted defendant 5 to reset his special motion to strike in this Department at any 6 time following the California Supreme Court's final ruling in the 7 Main Action. (See Order of Court Re Defendant's Special Motion 8 to Strike Complaint Pursuant to CCP Q425.16, filed 8/31/93, 9 attached as Ex. A to Goldowitz Dec., Ex. 24, filed herewith.) 10 On July 15, 1993, the California Supreme Court dismissed the 11 petition for review in the Main Action and remanded the matter to 12 the Court of Appeal. (See Ex. B to Goldowitz Dec.) On October 13 13, 1993, Division 7 of the Second Appellate District of the 14 Court of Appeal issued the Remittitur in the Main Action and a 15 notice that the Court's earlier opinion and decision was now 16 final. (See Ex. C to Goldowitz Dec.) Thus, the California 17 Supreme Court and the Court of Appeal have issued their final 18 fulings in the Main Action, and defendant hereby resets his 19 special motion to strike for hearing, pursuant to this Court's 20 order of 8/31/93. 21 As indicated herein, defendant incorporates by reference the 22 moving and reply papers and supporting documents which he has 23 already filed in support of his special motion to strike. This 24 supplemental memorandum and accompanying exhibits provides 25 additional information and analysis to assist the Court in making 26 its decision on this motion. 27 28 Defendant's Suppl. Memorandum, Special Motion to Strike, Scientology v. Uollersheim Page 2 \Gold2 (motion to strike)\Page.00008 1 I. THIS SPECIAL MOTION TO STRIKE IS AUTHORIZED BY C.C.P. 0 425.16, AND TO DEFEAT THE MOTION PLAINTIFF MUST SHOW A 2 PROBABILITY THAT IT WILL PREVAIL ON ITS CLAIMS. 3 A. THIS SPECIAL MOTION TO STRIKE IS AUTHORIZED BY 9 425.16. PLAINTIFF'S COMPLAINT ARISES FROM THE 4 WOLLERSHEIM V. CHURCH OF SCIENTOLOGY LAWSUIT, WHICH IS PETITION ACTIVITY EXPRESSLY PROTECTED UNDER 9 425.16. 5 In addition to the analysis and information in defendantis 6 moving and reply papers, which are incorporated by reference 7 herein, defendant provides the following information and analysis 8 on this issue: 9 1. LEGISLATIVE INTENT, THE PLAIN MEANING RULE AND 1O RELATED PRINCIPLES OF STATUTORY CONSTRUCTION. 11 To interpret 9 425.16, the Court must begin with the 12 legislative intent and the plain meaning rule, and then apply 13 other well settled principles of statutory construction: 14 "A court should 'ascertain the intent of the Legislature so as to effectuate the purpose of the law.' In determining 15 such intent, the court 'turns first to the words themselves for the answer", giving to them 'their ordinary and 16 generally accepted meaning'." (People v. Craft (1986) 41 Cal.3d 554, 559-560, 224 17 Cal.Rptr. 626; citations omitted.) 18 "In determining legislative intent, we turn first to the words of the statute and apply the 'plain meaning' rule. 19 Because the Legislature is presumed to have meant what it said, the plain meaning of the statute governs. We must 2O give effect to the usual, ordinary import of the language of the statute. Moreover, the statute must be construed so as 21 to avoid an interpretation which renders any of its language surplusage." 22 (Taylor v. Forte Hotels Intern. (1991) 235 Cal.App.3d 1119, 1123, 1 Cal.Rptr.2d 189; citations omitted.~2 23 24 2"To determine the intent of legislation, we first consult the words themselves, giving them their usual and ordinary 25 meaning." (DaFonte v. Uo-Riqht, Inc. (1992) 2 Cal.4th 593, 6O1, 7 Cal.Rptr.2d 238.) When "'statutory language is...clear and 26 unambiguous, there is no need for construction, and courts should not indulge in it." (Roio v. Kliser (1990) 52 Cal.3d 65, 73, 27 276 Cal.Rptr. 13O.) "'...if the language is clear there can be no room for interpretation and effect must be given to its plain 28 meaning.'" (Citv of Los Anqeles v. Su~erior Court (1985) 17O Defendant's Suppl. Memorandum, Special Motion to Strike, Scientology v. Uoltersheim Page 3 \Gold2 (motion to strike)\Page.00009 "Every word, phrase, and sentence in a statute should, if 2 possible, be given significance." (Penasauitos v. Superior Court (1991) 53 Cal.3d 1180, 1186, 283 Cal.Rptr. 135.) 3 "The literal language of a statute may be disregarded only 4 if it would lead to absurd results." (McMillon v. Superior Court (1984) 157 Cal.App.3d 654, 658, 204 Cal.Rptr. 52; In 5 re Jeanice D. (1980) 28 Cal.3d 210, 226, 168 Cal.Rptr. 455.)' 6 2. THE PURPOSES OF 9 425.16. As to its purposes, the statutory language is clear and unambiguous. The two sentences of 0 425.16(a) set forth the purposes of the statute. The first sentence states that a 10 purpose of the statute is to protect "the valid exercise of the 11 constitutional rights of freedom of speech and petition for the 12 redress of grievances." The second sentence states that another 13 purpose of the statute is "to encourage continued participation 14 in matters of public significance." 15 16 17 18 Cal.App.3d 744, 752, 216 Cal.Rptr. 311.) 19 3The "absurd result" exception to the "plain meaning" rule "should be used most sparingly by the judiciary and only in 20 extreme cases else we violate the separation of powers principle of government. We do not sit as a 'super-Legislature.' ...[8] 21 Each time the judiciary utilizes the 'absurd result' rule, a little piece is stripped from the written rule of law and 22 confidence in legislative enactments is lessened.(i (Unzueta v. Ocean View School District (1992) 6 Cal.4th 1689, 1698, 1699, 8 23 Cal.Rptr.2d 614; citations omitted.) Giving effect to the plain meaning of the statute is 24 particularly appropriate here, where the Legislature enacted 9 425.16 overwhelmingly, and where its predecessor bill was also 25 overwhelmingly passed by the Legislature. The State Assembly approved SB 1264 by a 68-1 vote on August 17, 1992, and the State 26 Senate by a 31-0 vote on August 18, 1992. The previous version of this legislation, SB 341 of 1991, which was vetoed by Governor 27 Wilson, was approved by 54-20 in the Assembly on September 3, 1991, and 27-0 in the Senate on September 5, 1991. (Wong Dec, 28 Ex. 18, Exs. G & S thereto.) Defendant's Suppl. Memorandum, Special Motion to Strike, Scientology v. Wollersheim Page 4 \Gold2 (motion to strike)\Page.00010 1 The second sentence of g 425.16(a) is not intended to limit 2 or restrict the first sentence for several reasons. The plain 3 meaning of the express language of the first sentence of 0 4 425.16(a) indicates this. "[Everyl word, phrase and provision 5 employed in a statute is intended to have meaning and to perform 6 a useful function...." (Clements v. T. R. Bechtel Co. (1954) 43 7 Cal.2d 227, 233, 273 P.2d 5.). "Interpretive constructions which 8 render some words surplusage...are to be avoided." (California 9 Manufacturers Association v. Public Utilities Commission (1979) 10 24 Cal.3d 836, 844, 157 Cal.Rptr. 676.). The second sentence 11 must be read harmoniously with the rest of the statute, including 12 the first sentence and the express language of 9 425.16(e) [see 13 below]. (People v. Craft, supra.) Under the principle of 14 expressio unius est exclusio alterius, the expression of the 15 public significance limitation in the second sentence and its 16 absence from the first sentence means that the first sentence 17 does not carry the public significance limitation. (Pasadena 18 Police Officers Association v. City of Pasadena (1990) 51 Cal.3d 19 564, 576, 273 Cal.Rptr. 584.) Finally, remedial legislation 20 (such as this statute) "is to be liberally construed to promote 21 the objects to be accomplished by it." (B.W. v. Board of Medical 22 Ouality Assurance (1985) 169 Cal.App.3d 219, 230, 215 Cal.Rptr. 23 130.). This result is not reached by reading out of the statute 24 one of its two express purposes. 25 3. FILING AND MAINTAINING A LAWSUIT ARE ACTIVITIES PROTECTED BY THE EXPRESS LANGUAGE OF 8 425.16. 26 By its express terms, ~ 425.16 applies to all lawsuits. 27 To achieve its purposes, the statute makes any "cause of 28 Defendant's Suppl. Memorandum, Special Motion to Strike, Scientology v,Uollersheim Page 5 \Gold2 (motion to strike)\Page.00011 1 action" arising from specified protected acts subject to a 2 special motion to strike, which, under 9 425.16(b), can be 3 brought against: 4 "A cause of action against a person arising from any act of that person in furtherance of the person's right of free 5 speech under the United States or California Constitution in connection with a public issue..." 6 The acts protected by 0 425.16 are further defined by 9 425.16(e) to include three general categories of activities: [Protected activityl "includes [1] any written or oral 9 statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding 10 authorized by law; [2] any written or oral statement or writing made in connection with an issue under consideration 11 or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or [3] any 12 written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of 13 public interest." [Bracketed numbers added.] 14 The first two categories deal with petitioning the 15 government, and the third deals more broadly with speech. The 16 first category closely tracks the description of petition 17 activity which is privileged under Civil Code 9 47(b), which the 18 Legislature chose to also protect under Q 425.16. 19 Each of the three categories is separated by a semicolon. 20 The phrase "in connection with an issue of public interest", 21 which appears after the third category (speech), modifies only 22 that third category, under the "last antecedent rule" of 23 statutory construction,' by the separative role of the 24 25 '"A longstanding rule of statutory construction -- the 'last 26 antecedent' rule -- provides that 'qualifying words, phrases and clauses are to be applied to the words or phrases immediately 27 preceding and are not to be construed as extending to or including others more remote.'" (White v. Sacramento County 28 (1982) 31 Cal.3d 676, 680, 183 Cal.Rptr. 520.) Defendant's Suppl. Memorandum, Special Motion to Strike, Scientology v. Wollersheim Page 6 \Gold2 (motion to strike)\Page.00012 1 semicolon 5 and under the rule that a literal and grammatical 2 interpretation of a statute can be ignored only if it would lead 3 to absurd results. 4 Plaintiff's complaint in this case seeks to set aside the 5 judgment which Wollersheim achieved in the Main Action. Thus, 6 plaintiff's conmplaint arises from Wollersheim's exercise of his 7 right to petition the government by filing and pursuing a 8 complaint in the Main Action. Wollersheim's complaint in the 9 Main Action, and all pleadings and evidence submitted in the 10 case, clearly are "written statement or oral statement[s] or 11 writing[s] made before a...judicial proceeding", and thus are 12 protected under the first category of activities set forth in q 13 425.16(e).6 Thus, based on the plain language of the statute, 14 this special motion to strike is authorized by g 425.16(e). 15 16 Ssee California Stvle Manual (3d ed. 1986) 6 173 (the semicolon "is often used as a 'full stop' pause to divide 17 distinct thoughts joined in a single sentence;...to prevent ideas, words, phrases or clauses from running together"); 18 Freeman, The Grammatical Lawver (1979) 112 ("The semicolon has a specific purpose--top separate elements of a sentence."); The 19 Chicaqo Manual of Style (13th ed. 1982) P'147, 85.68 (the semicolon is "useful to mark a more important break in the 20 sentence flow than that marked by a comma."); Garner, 8 Dictionary of Modern Leqal Usaqe (Oxford Univ. Press 1987) 451 21 (the semicolon "separates those parts of a sentence between which there is a more distinct break than would call for a comma can 22 signal, but which are too closely connected to be made into separate sentences."); Webster's Ninth New Collesiate Dictionarv 23 (1983) (the semicolon is "used chiefly in a coordinating function between major sentence elements"). 24 "[P]unctuation is part of the statute, and should be considered in its interpretation in an attempt to give the 25 statute the construction intended by the drafter and to seek and follow the intent of the Legislature." (People v. Henson (1991) 26 231 Cal.App.3d 172, 176-177, 282 Cal.Rptr. 222.) 27 'See Williams v. Coombs (1986) 179 Cal.App.3d 626, 645, 224 Cal.Rptr. 865 (filing lawsuit is publication in judicial 28 proceeding). Defendant's Suppl. Memorandum, Special Motion to Strike, Scientology v. Wollersheim Page 7 \Gold2 (motion to strike)\Page.00013 1 4. THE LEGISLATIVE HISTORY OF 9 425.16(e). 2 The legislative history of 9 425.16(e)' also clearly 3 indicates that its intent is to extend the protections of the 4 statute to all petition activity, and that only the exercise of 5 free speech rights is subject to the limitation that it be "made 6 in a place open to the public or a public forum in connection 7 with an issue of public interest." 8 The original version of SB 1264 of 1992, which ultimately 9 enacted g 425.16, did not contain a subsection (e). (Goldowitz 10 Dec i 7 and Ex. D thereto.) On June 11, 1992, Senator Lockyer's 11 office faxed to two key supporters of the bill the original draft 12 of an amendment adding 9 425.16(e), soliciting comments. The 13 draft subsection (e) contained an exclusive definition which 14 covered onlv the two forms of petition activity set forth in the 15 enacted statute: statements made before an official proceeding, 16 and statements made in connection with an issue under 17 consideration in an official proceeding. Neither of the 18 protected petition activities were limited to public interest 19 20 21 22 23 24 25 26 'Defendant requests that this Court take judicial notice of 27 the legislative history discussed in this supplemental memorandum and in Wong Dec and Goldowitz Dec, and the documents attached 28 thereto, pursuant to Evidence Code 90 452(b), (C)I (h)l and 453. Defendant's Suppl. Memorandum, Special Motion to Strike, Scientology v. Wot_lersheim Page 8 \Gold2 (motion to strike)\Page.00014 1 issues. (Goldowitz Dec 8 8 and Ex. F thereto.)S 2 Supporters of SB 1264 told its author, Senator Lockyer, that 3 the draft language was too narrow, because it was limited to 4 petition activity and did not cover many situations where free 5 speech was being exercised. On June 29, 1992, 6 Senator Lockyer submitted, and the Assembly adopted, a revised 7 version of 9 425.16(e), which contained the language in the final 8 legislation. This amendment replaced the exclusive definition in 9 the draft (which used the term "means") with the non-exclusive 10 term "includes", added a third category of specified protected 11 activities (free speech on issues of public interest), and 12 replaced the commas in the original draft with semicolons 13 separating each of the three categories of protected activity 14 described in 9 425.16(e). The supporters of SB 1264, who had 15 criticzed the previous draft of this subsection, believed that 16 the revised version responded satisfactorily to their criticisms. 17 (Id., i 10 and Ex. G thereto.) 18 5. THE MAIN ACTION SOUGHT TO ENFORCE A REMEDY FOR THE ABUSE OF COERCIVE PSYCHOLOGICAL TECHNOLOGIES IN A 19 CLAIMED RELIGIOUS SETTING, WHICH IS AN ISSUE OF PUBLIC INTEREST, AND THEREFORE THE MAIN ACTION WAS 20 ACTIVITY PROTECTED BY 0 425.16. 21 In any case, even if q 425.16 only protects petitioning 22 23 'The June 11, 1992, draft of 9 425.16(e) read as follows: "(e) As used in this section, 'act in furtherance of the right of 24 petition of free speech under the United States or California Constitution in connection with a public issue' means any written 25 or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official 26 proceeding authorized by law, or a written or oral statement or writing made in connection with an issue under consideration or 27 review by a legislative, executive, or judicial body, or any other official proceeding authorized by law." 28 Defendant's Suppl. Memorandwn, Special Motian to Strike, Scientology v. Uollersheim Page 9 \Gold2 (motion to strike)\Page.00015 1 about matters of public interest, that test is met here. In the 2 Main Action, Wollersheim sought, and received from a jury and the 3 appellate courts, a remedy for the abuse of coercive 4 psychological technologies employed by Scientology, in a claimed 5 religious setting. (See Wollersheim Supp.Dec, Ex. 14, ia 2-5; 6 Wollersheim v. Church of Scientolosv (1989) 212 Cal.App.3d 872, 7 881-882, 889, 891-900, 260 Cal.Rptr. 331.) The Main Action 8 resulted in a landmark decision against Scientology and two 9 published decisions by the Court of Appeal, including a holding 10 that the state has a "compelling secular interest in 11 discouraging" Scientology's Fair Game practices and coercive 12 psychological tactics. (See Wollersheim v. Church of Scientoloqy 13 (1989) 212 Cal.App.3d 872, 891, 260 Cal.Rptr. 331, (1992) 3 14 Cal.App.4th 1290, 6 Cal.Rptr.2d 532; Wollersheim Dec ~~ 6-9.)' 15 Enforcement of an important right through litigation, which 16 Wollersheim sought, confers a substantial benefit on the public. 17 (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 318-321, 193 18 Cal.Rptr. 900.) Disputes of much less public policy significance 19 have been given First Amendment protection based on their public 20 interest content." 21 9see also Church of Scientolosv of California v. Dell 22 Publishinq Co., Inc. (N.D.Cal., 1973) 362 F.Supp. 767, 769 (Scientology is a subject matter of "public interest"); Molko v. 23 Holy S~irit for the Unification of World Christianitv (1988) 46 Cal.3d 1092, 1117-1118, 252 Cal.Rptr. 122, cert.den., 109 S.Ct. 24 2110 (there is a compelling state interest in preventing fraudulent recruitment practices). 25 lo (See, e.q., Dora v. Frontline Video. Inc. (1993) 15 26 Cal.App.4th 536, 18 Cal.Rptr.2d 790, 792-793 [documentary on surfing at Malibu Beach in the 1950's contains matters of public 27 interest and is therefore entitled to constitutional protection against liabilityl; Institute of Athletic Motivation v. 28 University of Illinois (1980) 114 Cal.App.3d 1, 12, 170 Cal.Rptr. Defendant's Suppl. Memorandum, Special Motion to Strike, Sciento~oqyv. Wollersheim Page 10 \Gold2 (motion to strike)\Page.00016 1 B. THE REQUIREMENT IN C.C.P. Q 425.16(b) THAT PLAINTIFF ESTABLISH "THAT THERE IS A PROBABILITY THAT PLAINTIFF 2 WILL PREVAIL ON THE CLAIM" REQUIRES PLAINTIFF TO SHOW THAT IT WILL MORE LIKELY THAN NOT PREVAIL. 3 [This issue is fully briefed in defendant's moving and reply 4 papers, which are incorporated by reference herein.] 5 II. THIS MOTION SHOULD BE GRANTED BECAUSE PLAINTIFF CAN NOT 6 DEMONSTRATE A PROBABILITY THAT IT WILL PREVAIL ON ITS CLAIMS. A. THIS COURT HAS NO JURISDICTION OVER THIS ACTION BECAUSE 8 IT IS MERELY A DISGUISED ATTEMPT TO BRING AN UNTIMELY MOTION FOR A NEW TRIAL. SCIENTOLOGY IS NOW BARRED FROM 9 RAISING THIS CLAIM BY COLLATERAL ESTOPPEL. 10 [This issue is fully briefed in defendant's moving and reply 11 papers, which are incorporated by reference herein.] 12 B. THIS ACTION IS BARRED BECAUSE IT IS UNTIMELY AND PLAINTIFF HAS NOT EXERCISED DUE DILIGENCE IN RAISING 13 THESE CLAIMS. 14 [This issue is fully briefed in defendant's moving and reply 15 papers, which are incorporated by reference herein.] 16 C. PLAINTIFF DOES NOT PLEAD AND CAN NOT SHOW THAT IT HAS A MERITORIOUS DEFENSE IN THE MAIN ACTION. 17 [This issue is fully briefed in defendant's moving and reply 18 papers, which are incorporated by reference herein.] 19 D. PLAINTIFF'S COMPLAINT IS NOT SUFFICIENT TO SET ASIDE 20 THE JUDGMENT BECAUSE IT ALLEGES AT MOST INTRINSIC FRAUD. 21 [This issue is fully briefed in defendant's moving and reply 22 papers, which are incorporated by reference herein.] 23 E. PLAINTIFF CAN NOT DEMONSTRATE A PROBABILITY THAT IT 24 WILL PREVAIL ON ITS CLAIM IN THIS ACTION THAT JUDGE SWEARINGER WAS DISQUALIFIED. 25 In addition to the analysis and information in defendant's 26 27 411 [criticism of test purporting to aid in athletic success is 28 matter of importance].) Defendant's Supp~. Memorandum, Special Motion to Strike, Scientology v. Wollersheim Page 11 \Gold2 (motion to strike)\Page.00017 1 moving and reply papers, which are incorporated by reference 2 herein, defendant provides the following information and analysis 3 on this issue: 4 According to former Scientologist Steven Fishman, during the 5 trial of the Main Action in 1986, Kendrick Moxon, then in 6 Scientology's Office of Special Affairs (and now counsel of 7 record for plaintiff in this action) gave orders to then 8 Scientology intern Lenny Leibowitz to drown Judge Swearinger's 9 dog, which Leibowitz did. (Fishman Dec, Ex. 23, ~8 9-17.) Thus, 10 although Scientology's present counsel Moxon was personally 11 responsible for Judge Swearinger's dog being drowned, he has 12 presented this incident as a key ground for the relief request in 13 this complaint, based on the fraudulent claim of Scientology's 14 lack of involvement in this incident. 15 F. THIS ACTION IS PART OF PLAINTIFF'S LITIGATION STRATEGY TO USE THE COURTS TO HARASS ITS OPPONENTS AND OF 16 ATTACKING JUDGES WHO RULE AGAINST THEM AS BIASED. PLAINTIFF HAS UNCLEAN HANDS AND IS NOT ENTITLED TO THE 17 EQUITABLE RELIEF SOUGHT. 18 In addition to the analysis and information in defendant's 19 moving and reply papers, which are incorporated by reference 20 herein, defendant provides the following information and analysis 21 on this issue: 22 Former Scientologist Steven Fishman's declaration provides 23 additional evidence of Scientology's "fair game" and "dirty 24 tricks" campaign against Wollersheim, his attorney, and the judge 25 and jury in the Main Action. This includes, in addition to 26 Kendrick Moxon's order that Judge Swearinger's dog be drowned 27 (see above, II-E), going through the trash of Charles O'Reilly, 28 Defendant's Suppl. Memorandum, Special Motion to Strike, Scientology v. Wollersheim Page 12 \Gold2 (motion to strike)\Page.00018 1 Wollersheim's attorney (Fishman Dec, Ex. 23, ~~ 21-22), planting 2 an agent to work in OlReilly's office and provide his briefs to 3 Scientology (Fishman Dec i 23-24; see also Aznaran Supp.Dec, Ex. 4 15, Q 11), telephone harassment of a witness for Wollersheim and 5 of jurors (Fishman Dec i~ 18, 21, 27; see also Aznaran Supp.Dec 8 6 10), attempts to drive a wedge between Wollersheim and O'Reilly 7 (Fishman Dec 88 23, 25; see also Wollersheim Dec, Ex. 2, ~Q 5-6, 8 Yanny Dec, Ex. 8, i 21(a)), and hiring a teenage prostitute to 9 seduce the son of Judge Swearinger for blackmail purposes 10 (Fishman Dec i 27-29; see also Aznaran Supp.Dec 8~ 3-7, and Ex. A 11 attached thereto). 12 CONCLUSION. 13 As demonstrated in defendant's original moving and reply 14 papers, and in this supplemental memorandum and accompanying 15 declarations, this complaint arises from defendant's exercise of 16 his constitutional right of petition, plaintiff can not show a 17 probability that it will prevail on its claims, and therefore 18 this special motion to strike should be granted. 19 Dated: November 16, 1993 20 Respectfully submitted, 21 Daniel Leipold, Hagenbaugh & Murphy Mark Goldowitz 22 Special Counsel for Defendant Wollersheim 23 By: 24 Mark Goldowitz 25 26 27 28 Defendant's Suppl. Memorandum, Special Motion to Strike, Scientology v. 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