[The conversion process might have lost or gained a paragraph break--HKH] Edith R. Matthai, 66730 ROBIE & MATTHAI A Professional Corporation 500 S. Grand Avenue, Suite 1500 Los Angeles, CA 90071-2609 (213) 624-3062 (213) 624-2563 Fax Attorneys for Defendant Graham E. Berry SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES MICHAEL HURTADO, Plaintiff, vs. GRAHAM E. BERRY, Defendant. ___________________________________ CASE NO. BC208227
Assigned to:
Hon. Ray L. Hart, Dept. 10 Action Filed: April 5, 1999 NOTICE OF MOTION AND MOTION FOR INSTRUCTION REGARDING DISPOSITION AND COPYING OF EVIDENTIARY MATERIALS DATE:May 3, 2000
TIME:9:00 A.M.
DEPT:10 TO: ALL PARTIES AND TO THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on May 3, 2000 at the hour of 9:00 A.M. , or as soon thereafter as counsel may be heard in Department 10 of the above-entitled court located at 111 N. Hill Street, Los Angeles, California, defendant Graham E. Berry, through his counsel, will bring a motion for an instru ction from the Court with regard to the copying and disposition of evidentiary materials. This motion is made on the ground that a dispute has arisen as to the identity of the rightful custodian of these documents. These documents are relevant to not only this case but potentially to other matters now in litigation involving the Church of Scientology, and potentially to Mr. Hurtado's pending criminal charges. The undersigned seeks this Court's Order for the proper handling and disposition, copying and/or distribution of these evidentiary materials pursuant to the Penal Code and the case law with regard to spoliation of evidence. This motion is based on this Notice, the attached Memorandum of Points and Authorities, the Declarations of Graham E. Berry and Edith R. Matthai, on all other records on file herein, and upon such oral and documentary evidence as may be presented at the hearing of this motion. DATED: March 30, 2000Respectfully submitted, ROBIE & MATTHAI A Professional Corporation By:________________________________
EDITH R. MATTHAI
Attorney for Defendant Graham E. Berry MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION This action is a chapter in a long and convoluted history of warfare between defendant Graham E. Berry and the Church of Scientology. The following is the briefest history possible to enable this Court to issue its instructions with regard to the disposi tion of certain evidentiary materials, potentially relevant not only in this action, but also other litigation involving the Church of Scientology as well as the pending criminal charges which have been filed against Michael Hurtado. In 1998, Graham E. Berry sued Robert J. Cipriano for libel and slander as a result of a declaration in which Mr. Cipriano falsely stated that Graham Berry was a cocaine abuser and a pedophile. This first Cipriano declaration was secured from Cipriano by Eugene Ingram, an investigator working for the Church of Scientology. During Graham Berry's deposition in the Cipriano libel and slander case, he was asked for the names of those with whom he has had sexual relations. Graham Berry, who is gay, identified Michael Hurtado. In fact, Graham Berry had a brief sexual relationship with Mr. Hurtado from early 1998 to Thanksgiving of 1998. The relationship was ended by Mr. Berry as a result of Mr. Hurtado's threatening behavior over the Thanksgiving weekend of 1998. Mr. Berry was also asked at his deposition whether he had provided pro bono representation for any clients. Graham Berry identified Michael Hurtado. In fact, Graham Berry had represented Michael Hurtado in two matters: In July, 1998, Michael Hurtado was charged with violating the restraining order which had been obtained by his aunt, Jenny Berosteguy, as a result of Michael Hurtado's violent behavior toward his aunt and grandmother. Graham Berry successfully obtained a dismissal of those criminal charges on the basis that the restraining order had not been properly served. Graham Berry also represented Michael Hurtado after he was arrested for possession of drug paraphernalia in December, 1998. Michael Hurtado, with Graham Berry as his counsel, entered a plea of nolo contendere and was referred to a diversion program. Shortly after Graham Berry's deposition, Michael Hurtado was approached by Gene Ingram. This case, filled with ludicrous allegations, resulted. Gene Ingram also met with Detective Scott Petz of the West Hollywood Sheriff's Department in an attempt to en courage criminal prosecution of Graham Berry, alleging that his introduction of Michael Hurtado to a friend of Graham Berry's constituted pandering. Detective Petz investigated the allegations, found no indication of criminal activity, and closed his file. After the filing of this case, Robert Cipriano recanted his original declaration. He now alleges that the original declaration was obtained by Ingram with threats and intimidation. Cipriano also claimed that he had attended a meeting at which Mr. Moxon and Mr. Ingram had discussed Mr. Ingram's contact with Michael Hurtado to pursue litigation against Graham Berry. A copy of Mr. Cipriano's declaration of August 4, 1999 is attached as Exhibit "A". Cipriano's new declaration also alleged that he was compensated in a variety of ways, through Messrs. Moxon and Ingram, for testimony against Graham Berry in the Berry v. Cipriano action. Although Mr. Cipriano's story initially seems incredible, particul arly in light of his conflicting declarations, Mr. Cipriano provided documents verifying many of his new allegations, including: * Correspondence from Cipriano to Moxon seeking money or other financial benefits tied to his performance as a witness against Mr. Berry (Exhibit B). * Documents showing the lease or purchase of a car for Mr. Cipriano by Mr. Moxon (Exhibit C). * Documents showing the leasing of an apartment for Mr. Cipriano by Mr. Moxon with rental payments funded by direct payment through the "Day of the Child" (Exhibit "D"). * * Documents showing payments to Mr. Cipriano by the "Day of the Child" during the pendency of the Berry v. Cipriano case (Exhibit "E"). In January, 2000, Michael Hurtado was arrested for violation of Penal Code section 459, felony burglary, and 646.9(A), felony stalking/threat to another person (Exhibit "F"). Apparently, Michael Hurtado was found with a very large kitchen knife in the closet of the apartment of a young woman who had rejected his continued attentions. The arrest undoubtedly disappointed those who would rely upon Michael Hurtado, and his credibility, as a weapon against Graham Berry. Thus, in what can only be presumed to be an effort to deter the victim's prosecution of the criminal case, Mr. Ingram visited the victim, suggesting that her continued prosecution of the criminal charges could subject her to embarrassing revelations about her own past. The undersigned was informed by Detective Petz of the West Hollywood Sheriff's Department that Mr. Ingram then contacted the victim's employer regarding the prosecution of a criminal action against Mr. Hurtado's victim for matters related to the theft and forgery of certain checks. These events raise the question of whether the activities of Eugene Ingram (and Mr. Moxon, counsel who apparently directed many of these activities) are appropriate or whether those activities constitute an obstruction of justice. When Mr. Cipriano was initially subpoenaed for his deposition in this action, he contacted this office in a state of obvious hysteria, expressing fear of retaliation if he were to testify. He then moved from the apartment in which he was staying, leaving behind boxes of documents which are labeled as the records from the "Day of the Child", a non-profit corporation established by Mr. Moxon. Both Mr. Moxon and Mr. Cipriano were directors of "Day of the Child" (Exhibit G). Mr. Cipriano alleges in his 1999 declaration that "Day of the Child" was used to provide payments to Mr. Cipriano during the pendency of the Berry v. Cipriano action. The records of the "Day of the Child" presumably provide evidence, one way or the other, as to whether the "Day of the Child" conducted any charitable activity, other than the support of Mr. Cipriano. When Mr. Cipriano departed the guest house he had been renting, the records of the "Day of the Child" were left behind, and Mr. Cipriano advised both Jane Scott and Graham Berry that those records should be maintained by Ms. Scott (Declaration of Graham Barry, pg. 5, line 9.) In January of 2000, Ms. Scott and Mr. Berry received telephone calls advising that the rain was damaging the boxes which had been left outside on the property. Mr. Berry at that point took the documents into his possession for safe keeping and maintained those documents in a locked storage facility. On or about March 18th, a draft motion under Federal Rule of Civil Procedure 60(b) was posted by Keith Henson on the Internet.1 The Rule 60(b) motion seeks to set aside a judgment entered in Scientology litigation based in Northern California, which arises out of copyright disputes from the posting of Scientology materials on the Web. The Rule 60(b) motion is based in part on the active harassment of Graham Berry during the time Mr. Berry was counsel of record for Keith Henson in that action. On March 20, 2000, two days after that posting, Mr. Berry received an Email and a telephone call from Mr. Cipriano, authorizing him to "deliver his papers to Roy Webb" (Exhibit H). Mr. Cipriano advised that he was requesting the documents because he had received an offer to purchase "Day of the Child" and its records2. Mr. Berry, in response, asked Mr. Cipriano for a new date for his deposition, and has not since heard from Mr. Cipriano. (Declaration of Graham Berry.) On March 24, 2000, Mr. Berry delivered the Cipriano documents to the offices of Robie & Matthai. No one from Robie & Matthai has either copied or read those documents and they have been placed in a secure storage facility. There is no known copy of the documents. The undersigned seeks instruction from this Court regarding the copying and disposition of these documents for the following reasons: * It is unclear whether these records were abandoned by, or remain the property of, Robert Cipriano. * Keith Henson has communicated his claim to this office that the documents are relevant to the Rule 60(b) motion he has either filed or intends to file, and he has asked that the documents not be released from our firm. * The documents are relevant as evidence of the payments made to Robert Cipriano during the time that he served as a witness against Graham Berry. * The documents are relevant to the issue of whether the contacts between Eugene Ingram, Kendrick Moxon and various witnesses are appropriate, or not; not only in regard to the contacts made in this case, but potentially in the pending criminal case filed against Mr. Hurtado given Mr. Ingram's contact with the victim in that matter. * The documents are potentially relevant to various violations of the laws governing non-profit organizations, including the solicitation of funds, the use of those funds, and the taxability of those monies. * There is concern that without the court allowing copying of the records before disposition to any party, the records may be irretrievably lost and/or destroyed. * Therefore, the undersigned respectfully requests that this Court issue its Order with regard to the disposition of these documents. If the originals are to be returned to Robert Cipriano (or given to any other person who claims an interest in them), the undersigned respectfully requests permission to maintain a copy of those documents. The undersigned can make documents available for inspection either by this Court (or by a Master/Referee appointed by this Court for that purpose) in order for the Court to determine the content of those documents. A PARTY WHO POSSESSES DOCUMENTS WHICH ARE KNOWN TO BE EVIDENCE "UPON ANY TRIAL, INQUIRY OR INVESTIGATION WHATEVER" IS OBLIGATED TO PRESERVE THOSE DOCUMENTS. The Penal Code provides that it is a misdemeanor to destroy or conceal documentary evidence. In Temple Community Hospital v. Superior Court (1999) 20 Cal.App.4th 464, 84 Cal.Rptr.2d 852, the court discussed the tort of third party spoliation of evidence. Although the California Supreme Court found that there was no third party action for the spo liation of evidence, the court commented: "The victim of third party spoliation, however, is not entirely helpless. Some discovery sanctions are available to punish third party spoliation, including monetary and contempt citations against persons who fl out the discovery processes by suppressing or destroying evidence." The court went on to note: "A criminal sanction remains available under Penal Code section 135 as are disciplinary sanctions against attorneys who may be involved in spoliation." Thus, the undersigned does not feel that the documents can be given to anyone without fear that one of the opposing parties will allege spoliation if the only set of these documents vanishes. Therefore, the undersigned felt that the only choice was to apply to this Court for instructions with regard to the handling of these materials. Respectfully submitted, DATED: March 29, 2000ROBIE & MATTHAI
A Professional Corporation (footnotes) 1 Both those supporting Scientology and those accusing the organization of misdeeds are active on the Internet. Numerous websites contain postings in these 'religious wars' and each side accuses the other of nefarious deeds and false postings. 2 While the undersigned is not an expert in the marketability of inactive, non-profit corporations, it does seem highly coincidental that a buyer would suddenly appear for an apparently dormant non-profit corporation, which apparently never fulfilled any charitable function.