$cientology lawyer Andy Wilson has sent [to] me the following. At the end I have a question which calls for a speculum.

[Quote]

ANDREW H. WILSON, SBN 63209
SHAUNA T. RAJKOWSKI, SBN 148239
WILSON CAMPILONGO LLP
475 Gate 5 Road, Suite 212
Sausalito, CA 94965

Telephone (415) 289-7100
Facsimile (415) 289-7110

Attorneys for Plaintiff and Judgment Creditor
CHURCH OF SCIENTOLOGY INTERNATIONAL

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF MARIN
CHURCH OF SCIENTOLOGY INTERNATIONAL, a California
nonprofit[sic] religious[sic] corporation,

Plaintiff,

vs.

GERALD ARMSTRONG,

Defendant.

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)CASE NO. 152229

SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
FOR ORDER OF CONTEMPT

Date: December 27, 2000
Time: 9:30
Department:6

I. INTRODUCTION

Plaintiff / Judgment Creditor Church of Scientology International ("CSI") applied for and recieved an order directing Defendant/Judgment Debtor Gerald Armstrong ("Armstrong") to show cause why he should not be held in contempt of this Court, pursuant to section 1209(a)(5) of the California Code of Civil Procedure, for Armstrong's willful defiance of this Court's October 17, 1995 Order of Permanent Injunction (the "Injunction"). Armstrong failed to appear or make any showing in opposition to that made by Plaintiff. Under these circumstances, the Court should make the requested order based on the showing made by Plaintiff. Plaintiff has provided conclusive proof that Armstrong -- who has twice previously been found in contempt of the Injunction -- has continued to openly flout the authority of this Court, violating the Injunction issued by this Court in numerous respects, including the following: (1) During the period February 20, 1998 to July 10, 2000, Armstrong made a total of 131 postings on the Internet, each of which violated one or more provisions of the Injunction; (2) Armstrong traveled to Clearwater, Florida and on December 5, 1999 spoke before a public gathering sponsored by the Lisa McPherson Trust, a for-profit corporation, the purpose of which is to bring about the destruction of the Scientology religion; and (3) Armstrong traveled to Tampa, Florida and on December 10, 1999 gave an interview on radio station WMNF-AM, during which he again violated the terms of the Injunction.

Armstrong has twice previously violated the Injunction and been held in contempt of this Court on each such occasion. Unfortunately, though bench warrants have been issued, Armstrong has fled the jurisdiction to avoid the consequences of his acts, all the while piously complaining that the Injunction is illegal.

FACTS

In December of 1986, Armstrong freely and voluntarily entered into a Mutual Release of All Claims and Settlement Agreement (the "Agreement") pursuant to which CSI paid Armstrong $800,000.00. (Wilson Decl. at ¶2.) In exchange, Armstrong promised, in essence, to cease disseminating "information" concerning CSI and to cease assisting others litigating or defending claims against CSI and Scientology-related entities. (Id) Beginning in approximately 1990, Armstrong fraudulently transferred substantially all of his assets to his attorney and close friends, and then began repeatedly breaching almost every covenant he made in the Agreement. (Id. at ¶ 3.)

As a result of Armstrong's conduct, CSI brought this action for breach of the Agreement seeking, inter alia, a permanent injunction against further breaches. (Id. at ¶ 4.) On October 17, 1995, this Court granted an Order of Permanent Injunction against Armstrong (the "Order") following a motion for Summary Adjudication of issues brought by CSI. (Id. at ¶ 8.) Such Order was later incorporated into the judgment entered against Armstrong on May 2, 1996 (the "Judgment"); the Order and Judgment are collectively sometimes referred to as the "Injunction". The Injunction prohibits Armstrong from voluntarily assisting any persons litigating claims adverse to defined "Beneficiaries" including CSI, from making public statements regarding any of the Beneficiaries, and from creating and/or publishing "works" discussing any of the Beneficiaries.

Armstrong continues to flaunt his violations of the Injunction and his disobedience to the authority of this Court, boasting to all that will listen that he intends to persist in violating the Injunction, calling it invalid and criminal. Indeed, since the February 20, 1998 contempt order, Armstrong has made a total of 131 postings on the Internet, each of which violated one or more provisions of the Injunction. (Id. at ¶ 17.) Armstrong has also caused himself to be subpoenaed for deposition in a lawsuit against the Church in Clearwater, boasting that he initiated the contact with the plaintiff's attorney (id. at ¶ 14); gave a speech at a fund-raiser for an anti-Scientology group in Clearwater (id. at ¶ 15); traveled to Tampa, Florida for an interview at Radio Station WMNF AM where he again purposely violated the Injunction (Id. at ¶16), and in June 2000, journeyed to Denmark to provide information to anti-Scientology media there.

II. ARGUMENT

This Court should hold Armstrong in criminal contempt for his willful disobedience of the Injunction. Code of Civil Procedure § 1209, et seq., provides this Court with the power to punish acts, such as Armstrong's, which are in "disobedience of any lawful . . . order of the court." Code Civ. Proc. § 1209(a)(5). See also, Pacific Telephone and Telegraph Co. v. Superior Court (1968) 265 Cal.App.2d 370 (section 1209 contempt proceedings are special proceedings, criminal in character and intended to implement the inherent power of the court to enforce its lawful orders).

Code of Civil Procedure § 1211 provides that when contempt is not committed in the immediate view and presence of the court, an affidavit shall be presented to the court of the facts constituting the contempt. For this purpose, declarations can be used in place of affidavits. Code Civ. Proc. § 2015.5.

The declaration must show: (1) the rendition of a valid order; (2) the respondent's knowledge of the order; (3) the respondent's ability to comply with the order; and (4) the respondent's willful disobedience of the order. See, Conn v. Superior Court (Farmer's Group) (1987) 167 Cal.App.3d 774, 784. The required showing has been made here. Armstrong has not made any counter showing. Thus, under Code Civ Proc. § 1218, the Court "...must determine whether the person proceeded against is guilty of the contempt..." Donovan v. Superior Court, 39 Cal. 2d 848, 855 (1952).

An adjudication for indirect contempt requires that the record contain substantial evidence that the contemner willfully and maliciously refused to obey the order of the court. The requisite intent can be inferred from the circumstances. Reliable Enterprises v. Superior Court, 158 Cal. App. 3d 604, 612 ( 1984) citing Oliver v. Superior Court, 197 Cal. App. 2d 237, 240 (1961) and City of Vernon v. Superior Court, 38 Cal. 2d 509, 518 (1952)

The Court has expressed some doubt as to the propriety of issuing the requested order of contempt. Plaintiff understands that this concern is focused on whether it should punish Armstrong for speaking in violation of an agreement between Armstrong and Plaintiff. In fact, contempt is sought for violation of an order issued by this Court in this action, not for violation of any agreement, although the acts which constitute the contempt also constitute breaches of that agreement. With that and the above legal principles in mind, it is useful to revisit each of the required elements

A. The Injunction Is Valid.

The Injunction was issued in October, 1995 by the Honorable Gary W. Thomas, upon Plaintiff's motion for summary adjudication. Judgment incorporating the Order was entered on May 2, 1996. There was no appeal from the Injunction, which is clearly final and no longer subject to direct or collateral attack. The only possible avenue of attack would be a collateral attack based on a claim by Armstrong that it is invalid on its face. People v. Gonzalez (1996) Cal.4th 804, 823-4. Of course, Armstrong has made no such attack. Further, the Court's file reflects that, prior to the entry of the Order, Armstrong fully litigated his claims that such an order would be vague, ambiguous, overbroad, against public policy, violative of his First Amendment rights, and violative of his rights to equal protection under the Fourteenth Amendment. Considerable time and effort was expended by the parties and this Court in addressing and rejecting Armstrong's numerous arguments as to why the proposed Order was improper.

The principle of collateral estoppel precludes any such attack at this time. In Barker v. Hull, 191 Cal. App. 3d 221, 226 (1987) the Court aptly summarized the applicable principle: "When an issue is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined, the issue is actually litigated within the meaning of this Section. An issue may be submitted and determined on a motion to dismiss for failure to state a claim, a motion for judgement on the pleadings...(or)...a motion for summary judgment..."

B. Armstrong Had Actual Knowledge Of The Injunction.

One needs to look no further than Armstrong's own words to find conclusive proof of this element. In his speech to the Lisa McPherson Trust, Armstrong told his audience about the Injunction and that his speech was "barred by Court order." (Wilson Dec., ¶ 15, Exhibit H, pg 1.)

C. Armstrong Was Fully Capable Of Complying With This Court's Injunction.

The restrictions placed on Armstrong's behavior by the Order are very specific and limited. The Order provides, in pertinent part, as follows:

Defendant Gerald Armstrong, his agents, employees, and persons acting in concert or conspiracy with him are restrained and enjoined from doing directly or indirectly any of the following:

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3. Voluntarily assisting any person (not a governmental organization or entity) arbitrating or litigating adversely to the Beneficiaries.

4. Facilitating in any manner the creation, publication, broadcast, writing, . . . electronic recording or reproduction of any kind of . . . documentary work of any kind which discusses, refers to or mentions Scientology, the Church, and/or any of the Beneficiaries [of the Order].

Nothing in the Order requires affirmative action. Instead, Armstrong is merely restrained from continuing to disclose his "information" and opinions. The restrictions on Armstrong's behavior in the Order stems from an agreement which Armstrong made freely and voluntarily and for which he was paid $800,000.00. (Id. at ¶ 2.)

D. Armstrong Has Willfully Disobeyed The Injunction And Must Be Appropriately Sanctioned.

The requirement that there be a "willful disobedience" of a court order to support the sanction of criminal contempt is undeniably met here. Plaintiff has submitted uncontroverted (and uncontrovertable) evidence that Armstrong willfully committed 131 violations of the Order by means of postings to the internet and an additional two violations by making a speech to the Lisa MacPherson Trust and appearing on radio WMNF-AM of Tampa, Florida. Each of these is, and should be punished as, a separate act of contempt. See, Donovan, supra, 39 Cal. 2d 848, 855; Reliable Enterprises v. Superior Court, supra, 158 Cal. App. 3d 604, 621.

This Court should exercise all of its available powers to stop the mockery of its authority and his violation of CSI's rights. Armstrong should be subject to a fine of $1,000 for each violation, and incarcerated for not more than five days pursuant to Code of Civil Procedure § 1218. CSI should also be awarded the costs and attorneys' fees it has incurred in bringing this Application.

CSI also submits that upon a finding of contempt under Code of Civil Procedure § 1209, et seq., referral to the District Attorney for misdemeanor prosecution under Penal Code § 166(4) is also necessary to curtail Armstrong's continued defiance of this Court's authority.

III. CONCLUSION

In light of the foregoing, plaintiff Church of Scientology International respectfully requests that the Court adjudge Armstrong to be guilty of each of the separate acts of contempt set forth in Plaintiff's application. .

Dated: December 27, 2000
Respectfully submitted,

WILSON CAMPILONGO LLP

By: __________________________
Andrew H. Wilson
Attorneys for Plaintiff/Judgment

Creditor

CHURCH OF SCIENTOLOGY INTERNATIONAL

[End Quote]

My question is this. I of course wasn't at the December 20 hearing referred to here, about which Wilson says:

[Quote]

The Court has expressed some doubt as to the propriety of issuing the requested order of contempt. Plaintiff understands that this concern is focused on whether it should punish Armstrong for speaking in violation of an agreement between Armstrong and Plaintiff.

[End Quote]

And then Wilson says:

[Quote]

In fact, contempt is sought for violation of an order issued by this Court in this action, not for violation of any agreement, although the acts which constitute the contempt also constitute breaches of that agreement. With that and the above legal principles in mind, it is useful to revisit each of the required elements

[End Quote]

So, he's just trying to make Judge Smith into an idiot isn't he?

Okay a second question.

Is this a good example of mealymouthedness?

© Gerry Armstrong