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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
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 religious corporation,

        Plaintiff,

vs.

GERALD ARMSTRONG,

        Defendant.


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CASE NO. 152229

EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE CONTEMPT: MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ANDREW H. WILSON

Date: November 13, 2000
Time: 9:30
Department: 6

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Plaintiff/Judgment Creditor Church of Scientology International ("CSI") hereby

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").

This application is made on the grounds, that in violation of the Order, Armstrong

-- 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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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 willfully treated this Court's authority with such callous disregard

that he should be criminally sanctioned by fine and imprisonment under Code of Civil

Procedure § 1218. Armstrong has been notified of this Application pursuant to Law and

Discovery Policy Manual Paragraph 261, et seq. Declaration of Andrew H. Wilson at

18.

This Application is based on this Application itself, the concurrently filed

Declaration of Andrew H. Wilson; the exhibits submitted therewith; the records on file in

this case; and such further evidence and argument as may be properly presented at the

hearing of this Application.

Dated: October __, 2000

Respectfully submitted,
WILSON CAMPILONGO LLP


By: __________________________
Andrew H. Wilson

Attorneys for Plaintiff/Judgment Creditor
CHURCH OF SCIENTOLOGY INTERNATIONAL

 
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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiff/Judgment Creditor, Church of Scientology International (" CSI") asks

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.

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.

So there is no doubt in the Court's mind that the contempt is plain, willful, and

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:

But I wanted to say first, that I am under an injunction in the State of
California, in fact I'm a wanted man in the State of California and I am
barred by court order from even mentioning the word Scientology. And
all of you by being here and listening to me, are in a sense acting in
concert with me, which I greatly appreciate, so you're all breaking that
injunction as well.

Declaration of Andrew Wilson ("Wilson Decl.") at ¶ 15, Ex. H, p. 1.

Armstrong's admitted contempt requires him to answer in contempt, and an order

to show cause should issue.

FACTS

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

 
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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.)

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's response to the Injunction was virtually immediate and has persisted.

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.

Armstrong continues to flaunt the Injunction and 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

 
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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

There is ample cause for this Court to issue an Order to Show Cause why

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).

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 above declaration "need only make a prima facia showing of the elements of

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.

The Order was valid when rendered and remains fully enforceable. A true and

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.

Since its entry, there has been no successful challenge to the validity of the Order

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.

2. Any collateral attack against the Injunction by Armstrong would be
meritless.


The only permissible collateral attack against the Order would be based on a

wholly meritless claim by Armstrong that it is invalid on its face. People v. Gonzalez

(1996) Cal.4th 804, 823-4.

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.

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:

* * *

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,

 

 
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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].

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.

This Court should exercise all of its available powers to stop the mockery of its

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.

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 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.

Dated: November 13, 2000

Respectfully submitted,
WILSON CAMPILONGO LLP


By: [signed]___________________
Andrew H. Wilson
Attorneys for Plaintiff/Judgment Creditor
CHURCH OF SCIENTOLOGY INTERNATIONAL

 
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DECLARATION OF ANDREW H. WILSON

I, ANDREW H. WILSON, declare as follows:

1. I am a partner of the law firm of Wilson Campilongo LLP and am an attorney

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.

2. In December of 1986, Armstrong entered into a Mutual Release of All Claims and

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].

3. I am informed and believe that, beginning in approximately 1990, Armstrong

fraudulently transferred substantially all of his assets and began repeatedly breaching almost

every covenant he made in the Agreement.

4. As a result of Armstrong's conduct, CSI brought an action for breach of the

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.

5. The Honorable Ronald Sohigian entered the Preliminary Injunction in late May,

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.

Q. No matter what a court says?

A. No court could order it. They're going to have to kill me.

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].

6. Shortly thereafter, in a declaration of February 2, 1993, Armstrong stated, " I do not

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].

7. On August 15, 1993, Mr. Armstrong wrote to me, declaring that his breaches of the

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].

8. On October 17, 1995, this Court granted an Order of Permanent Injunction against

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.")

9. Since its entry, there has been no successful challenge to the validity of the Order

by Armstrong. The Preliminary Injunction which preceded the Order was affirmed following

Armstrong's Petition to the Court of Appeals.

10. Armstrong's counsel appeared at the hearing pertaining to the Order. Armstrong

further received notice of entry of the Order.

11. In January 1997, I learned of actions by Mr. Armstrong which I believe are clear

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].

12. Armstrong successfully discharged the approximately $300,000.00 awarded by

 
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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.

13. In September and October of 1997, Armstrong committed a series of knowing and

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].

14. Sometime in late 1998, Armstrong initiated contact with attorney Kennan Dander

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).

15. In early December, 1999, Armstrong again traveled to Florida for the purpose of

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."

16. Shortly thereafter, on December 10, Armstrong traveled to Tampa, Florida for an

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].

17. From February 20, 1998 through the present, Armstrong has made a total of 131

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] .

19. This morning, November 13, 2000, I received a copy of Mr. Armstrong's posting to

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.

I declare under penalty of perjury pursuant to the laws of the State of California that the

foregoing is true and correct. Executed this 13th day of November, 2000 at Sausalito, California.

 

[signed] Andrew H. Wilson      
Andrew H. Wilson      

 
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Exhibit [A]
Mutual Release & " Settlement Agreement" 12-06-1986 [.pdf]

Exhibit [B]
Armstrong Deposition (excerpt) 06-24-1992

Exhibit [C]
Armstrong Declaration 02-02-1993 Pages 1, 9-11, 29 [.pdf]
Armstrong Declaration 02-02-1993 [complete]

Exhibit [D]
Letter to Wilson 08-15-1993 [.pdf]

Exhibit [E]
a) Injunction October 17, 1995
b) Judgment May 2, 1996

Exhibit [F]
a) Order of Contempt 06-05-1997 [.pdf ]
b) Bench Warrant 08-06-1997 [.pdf]

Exhibit [G]
a) Order of Contempt 02- 20-1998 [.pdf]
b) Bench Warrant 05-15-1998 [.pdf]

Exhibit [H]
Armstrong Deposition McPherson v. Scientology (excerpt) 12-04-1998

Exhibit [I]
Purported Transcript of Armstrong's talk in Clearwater, FL 12-05-1999

Exhibit [J]
Transcript of interview on WMNF AM
http://members.cox.net/batchild1/transcript/gerry1.htm

Exhibit [K]
Sample postings to alt.religion.scientology

Exhibit [L]
List of postings which allegedly breach settlement

Exhibit [M]
E-Mail messages from Wilson 11-09-2000; 11-10-2000

Exhibit [N]
Usenet message in .pdf format to alt.religion.scientology 11-10-2000
"Re: Insane E-Mail from $cientology Crime Cult in C$I v. Armstrong, Marin SC No.152229 or Just an Insane Op?"

   

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