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ANDREW H. WILSON, SBN 63209 SHAUNA T. RAJKOWSKI, SBN 148239 WILSON CAMPILONGO LLP 475 Gate 5 Road Sausalito, CA 94965 Telephone (415) 289-7100 Attorneys for Plaintiff and Judgment Creditor
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF MARIN
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applies ex parte for 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").
-- who has twice previously been found in contempt of the Injunction -- has continued to openly flaunt the authority of this Court, violating the Injunction issued by this Court in |
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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION
this Court to issue an Order to Show Cause why Defendant/Judgment Debtor, Gerald Armstrong ("Armstrong") should not be held in contempt of this Court's Order of Permanent Injunction entered herein on October 17, 1995 (the " Injunction"). Armstrong, by his serial contempts and contumacious behavior, has amply demonstrated that he will continue to defy this Court's authority unless adequate criminal sanctions are ordered.
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.
calculated, the transcript of Armstrong's December 1999 address at a public gathering is annexed as Exhibit [H] to this application, and reflects that Armstrong began his remarks by stating:
Declaration of Andrew Wilson ("Wilson Decl.") at ¶ 15, Ex. H, p. 1.
to show cause should issue. FACTS
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 |
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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.)
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.
In response to his most egregious violations of the terms of the Injunction, CSI obtained contempt judgments against Armstrong both on June 5, 1997 and February 20, 1998 . (Id. at ¶ ¶ 11, 13). Bench warrants issued in both instances, but Armstrong fled California in response to the first contempt judgment and moved out of California to avoid arrest and to persist in his defiance of the 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 |
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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
Armstrong should not be held 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).
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.
contempt." Crawford v. WCAB (1989) 213 Cal.App.3d 156, 169. 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. All these conditions are present here. A. The Court's Injunction At Issue Is Valid.
correct copy of the Order is attached as Exhibit [D] to the Declaration of Andrew H. Wilson, filed herewith.
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1. There has been no successful direct attack against the Injunction.
by Armstrong. (Wilson Decl. at ¶ 9.) There was no appeal from the Injunction, which is clearly final and no longer subject to direct or collateral attack.
wholly meritless claim by Armstrong that it is invalid on its face. People v. Gonzalez (1996) Cal.4th 804, 823-4.
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. B. Armstrong Had Actual Knowledge Of The Injunction.
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.
and limited. The Order provides, in pertinent part, as follows:
* * *
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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]. 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
the sanction of criminal contempt is undeniably met here.
authority and his violation of CSI's rights. Both 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.
§ 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
requests that the Court order that Armstrong show cause why he should not be held in contempt of court and why CSI should not be awarded its costs, including attorneys' fees, in bringing this motion. CSI also requests an order permitting it to give notice of the Order to Show Cause to the fugitive Armstrong by service of the order by |
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overnight mail to his last known address -- his mother's residence in Chilliwack, British Columbia.
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DECLARATION OF ANDREW H. WILSON
admitted to practice in the State of California. I am one of the attorneys responsible for the representation of the Plaintiff/Judgment Creditor in this action. As such, I have personal knowledge of the facts set forth below and, if called upon to testify on such matters, would and could do so competently.
Settlement Agreement (the "Agreement") pursuant to which CSI paid Armstrong $800,000.00. In exchange for his receipt of such funds, Armstrong promised, inter alia, to cease disseminating information concerning CSI and to cease assisting others pressing claims against CSI and related entities. A true and correct copy of the Agreement is attached hereto as Exhibit [A].
fraudulently transferred substantially all of his assets and began repeatedly breaching almost every covenant he made in the Agreement.
Agreement seeking, inter alia, a permanent injunction preventing Armstrong from further breaching the Agreement. Armstrong filed various claims against CSI for breach of the Agreement.
1992. Less than a month later, I was questioning Mr. Armstrong at a deposition when he testified on his intention to ignore the settlement agreement and Judge Sohigian's Order: A. When, I mean, I have, I have absolutely no intention of honoring that settlement agreement. I cannot. I cannot logically, I cannot ethically, I cannot morally. I cannot psychically. I cannot philosophically. I cannot spiritually. I cannot in any way. And it is firmly my intention to not honor it. A true and correct copy of page 124 of the Deposition of Gerald Armstrong taken Wednesday, |
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June 24, 1992, in which Mr. Armstrong made this statement, is attached hereto and incorporated herein by reference as Exhibit [B].
believe such non-assistance, covenants or orders are legal or do anything but obstruct the administration of justice and attempt to destroy men's souls." True and correct copies of pages 1, 9-11 and 29 of said declaration are attached hereto and incorporated herein by reference as Exhibit [C].
settlement agreement and of Judge Sohigian's Preliminary Injunction continued unabated, even in Armstrong's sleep. A true and correct copy of the letter which I received from Mr. Armstrong, dated August 15, 1993, is attached hereto and incorporated herein by reference as Exhibit [D].
Armstrong (the "Order") following certain motions for the Summary Adjudication of Issues by CSI. Such Order was later incorporated into the judgment (" Judgment") entered against Armstrong on May 2, 1996. Attached hereto as Exhibit [E] is a true and correct copy of the Order which was attached to the Judgment as an Exhibit. (The Order and the Judgment are collectively referred to hereinafter as the "Injunction.")
by Armstrong. The Preliminary Injunction which preceded the Order was affirmed following Armstrong's Petition to the Court of Appeals.
further received notice of entry of the Order.
violations of the Injunction. These actions were brought to the attention of this Court which issued an OSC re Contempt on February 19, 1997 and an Order of Contempt on June 5, 1997. A true and correct copy of which is attached hereto as Exhibit [F].
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by this Court in damages to CSI in is bankruptcy proceedings. Armstrong failed in his effort to have the Bankruptcy Court discharge him from the contractual obligations upon which the Order is based.
intentional violations of the Order, which resulted in entry of a Second Order of Contempt on February 20, 1998 and issuance of another Bench Warrant. A true and correct copy of which is attached hereto as Exhibit [G].
who represents the plaintiff in Liebreich v. Church of Scientology Flag Service Organization, et al., Hillsborough County, Florida Circuit No. 97-01235, an action based on false and inflammatory allegations that the defendants are somehow responsible for the death of a Church member. A true and correct copy of certain pages of the deposition (hereinafter "Armstrong Dep.") transcript of Mr. Armstrong, taken in that action, is attached hereto as Exhibit [H] Armstrong admits, even boasts, that he initiated the contact (Armstrong Dep., pp. 107-08), that he told Dandar that he had information which could be helpful to the plaintiff in Liebreich, (Armstrong Dep. 108) and that he and Dandar discussed the injunction and the fact that it prohibited Armstrong from voluntarily assisting Dandar (Armstrong Dep. 112-113). These email and phone communications resulted in Armstrong voluntarily traveling to Florida to give his deposition. (Armstrong Dep., pp. 122) Having told Dandar when and where he would arrive, Armstrong was served at the Tampa Airport with a deposition subpoena for his December 4 deposition, notice of which had been given by Dandar some two weeks earlier on November 20. (Armstrong Dep. 4-6).
aiding Liebreich, giving a speech at a fund-raiser for the Lisa McPherson Trust. The videotape of that speech was produced by Liebreich in May 2000. A true and correct written transcript made from the videotape is attached hereto as Exhibit [I]. At the beginning of his speech, Armstrong brags, "I am under an injunction in the State of California, in fact I am a wanted man in the State of California and I am barred by court order from even mentioning the word |
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'scientology.'" He then does exactly what he is prohibited from doing, and apparently delights in spinning a web of lies and half-truths about his experiences as a Church member (his association ended in 1982) and his purported knowledge of the "Scientology organization."
interview at Radio Station WMNF AM where he again boasted of violating the Injunction, and embellished his usual calumny with tales of a "Scientology prison system." A true and correct copy of a written transcript of this interview is attached hereto as Exhibit [J].
postings to the Internet, each of which violates one or more provisions of the Injunction. True and correct copies of a sampling of these postings are attached hereto as Exhibit [K]. A complete listing of these postings is attached as Exhibit [L]. 18. On November 9 and 10, 2000, I notified Mr. Armstrong of this application by sending a copy of this application without exhibits to Armstrong's e-mail addresses as follows: (1) armstrong@dowco.com, which was used as recently as October 31, 2000; and (2) armstrong@ntonline.com, an email address appearing on some of Armstrong's postings. A copy of the covering email message is attached hereto as Exhibit [M] .
the Internet, attached hereto as Exhibit [N], which clearly shows that Mr. Armstrong received my e-mail and in which he readily admits to thousands of violations of the provisions of the Injunction.
foregoing is true and correct. Executed this 13th day of November, 2000 at Sausalito, California.
[signed] Andrew H. Wilson |
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Exhibit [A] Exhibit [B] Exhibit
[C] Exhibit [D] Exhibit [E] Exhibit [F] Exhibit [G] Exhibit [H] Exhibit [I] Exhibit [J] Exhibit [K] Exhibit [L] Exhibit [M] Exhibit [N] |
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