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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF MARIN

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I. INTRODUCTION

CSI presents its instant in limine motion in search of an order which would prevent

Gerald Armstrong from defending against its $6.55 million claim for 131 internet postings, in

effect asking for little more than a judicial rubber stamp so as to obtain such an outrageous

result.

Based on res judicata principles CSI asserts that Armstrong is collaterally estopped

from asserting any defense and therefore the Court must exclude any evidence with respect to

any of Armstrong’s defenses

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DEFENDANT'S OPPOSITION TO MOTION IN LIMINE

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Armstrong’s position is that the Court’s discretion is not as limited as Scientology

contends. Mr. Armstrong opposes CSI’s motion in limine on the primary ground of public

policy and injustice.

II. LEGAL DISCUSSION

"Under traditional rules of res judicata, a party may be barred ('collaterally estopped')
from relitigating issues that were previously adjudicated in an earlier proceeding."
(Wittman v. Chrysler Corp. (1988) 199 Cal.App.3d 586, 591, 245 Cal.Rptr. 20.) The
rule of res judicata “‘is to prevent vexatious litigation and to require the parties to rest
upon one decision in their controversy.' (Miller & Lux Inc. v. James, 180 Cal. 38, 44[,
179 P. 174].) '[A] final judgment on the merits in a prior action is conclusive between
the same parties in a subsequent action involving the same subject matter.' (Hamilton
v. Carpenter, 15 Cal.2d 130, 133[, 98 P.2d 1027].)" (Boucher v. Kriehn (1947) 80
Cal.App.2d 437, 441, 182 P.2d 218.) Res judicata bars "not only the reopening of the
original controversy, but also subsequent litigation of all issues which were or could
have been raised in the original suit. [Citations.]" (Gates v. Superior Court, supra,
178 Cal.App.3d at p. 311, 223 Cal.Rptr. 678.)”

(Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 821)

There are, however, a public interest and unfairness exceptions to the rule of res

judicata. (Greenfield v. Mather (1948) 32 Cal.2d 23, 35) When the issue in a question of law

rather than of fact, the prior determination is conclusive either if injustice would result or if

the public interest requires that re-litigation not be foreclosed. (City of Sacramento v. State of

California (1990) 50 Cal.3d 51, 64) The public interest exception to res judicata is not

confined to cases concerning public agencies, nor does it require that the initial determination

of an issue be “erroneous.” (Kopp v. Fair Political Practices Com’n (1995) 11 Cal.4th 607,

622, fn. 16)

This case presents weighty public policy issues regarding the free exercise of religion,

the prohibition against establishing a religion and free speech. Therefore, a full airing of the

issues and evidence is appropriate.

Here we have a powerful, grandiose and paranoid religion whose “fair game” policy

shares “some parallels in purpose and effect” with the practice of the inquisition of the Middle

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Ages which “targeted ‘heretics’ who threatened the dogma and institutional integrity of the

mother church.” (Wollersheim v. Church of Scientology (1989) 212 Cal.App.3d 872, 888)

For over 20 years Scientology has deemed Armstrong to be “fair game” and sought to

neutralize him. The instant lawsuit is a judicial application of that policy.

“Commencing in February 1982, the international Church of Scientology issued a
series of "suppressive person declares" in effect labeling Armstrong an enemy of the
Church and charging that he had taken an unauthorized leave, was spreading
destructive rumors about senior Church officials, and secretly planned to leave the
Church. These "declares" subjected Armstrong to the "Fair Game Doctrine" of the
Church, which permits a suppressive person to be "tricked, sued or lied to or destroyed
... [or] deprived of property or injured by any means by any Scientologist...."”

(Church of Scientology v. Armstrong (1991) 232 Cal.App.3d 1060, 1067)

CSI’s contract claim masks its genuine agenda, the judicial enforcement of its

religious doctrine of retribution designed to neutralize one particularly unrepentant heretic.

If Armstrong was a Catholic in the Middle Age, would it be appropriate for a Court to

execute a $50,000 consequence each time Armstrong were to publicly object to, expose and

discuss Scientology’s “neutralization” of heretics by “incarceration, torture and death”?

(Wollersheim, supra, 212 Cal.App.3d at 888)

As the judicial enforcement of religious dogma offends the anti-establishment clause

of the First Amendment, Armstrong submits there is a strong public policy interest in such

enforcement, if it is to occur at all, not taking place automatically because we long have held

the "awareness of the historical fact that governmental established religions and religious

persecution go hand in hand." (Engle v. Vitale 370 U.S. 421, 432)

In addition to the question of the constitutional impropriety of allowing a

demonstrably vindictive religion to use the courts to implement its policy of punishment,

public interest values are further impacted. Perhaps more than any other topic due to

religion’s propensity to disseminate noxious doctrine, religious matters merit protection of

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speech in public. ¹

It cannot be seriously argued that the imposition of liquidated damages of $50,000 per

internet posting does not function as a publicly punitive measure intended to deter speech

about Scientology. 131 postings will bring the total to $6.55 million. This result is so

monstrously intimidating that it cannot help but suppress public discussion regarding

Scientology’s nature, morality, practices and position in the delicate balance of our

constitutional democracy.

In Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628 Scientology was

found to use the litigation system as a tool to destroy its enemies.

Declarations of former members and officials of the Church, Gerald Armstrong and
Vicki Aznaran, revealed the practices and policies of the Church, including its “fair
game” doctrine and employment of litigation practices designed “to bludgeon the

Those who won our independence believed that the final end of the state was to make
men free to develop their faculties, and that in its government the deliberative forces
should prevail over the arbitrary. They valued liberty both as an end and as a means.
They believed liberty to the secret of happiness and courage to be the secret of liberty.
They believed that freedom to think as you will and to speak as you think are means
indispensable to the discovery and spread of political truth; that without free speech
and assembly discussion would be futile; that with them, discussion affords ordinarily
adequate protection against the dissemination of noxious doctrine; that the greatest
menace to freedom is an inert people; that public discussion is a political duty; and
that this should be a fundamental principle of the American government. They
recognized the risks to which all human institutions are subject. But they knew that
order cannot be secured merely through fear of punishment for its infraction; that it is
hazardous to discourage thought, hope and imagination; that fear breeds repression;
that repression breeds hate; that hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely supposed grievances and proposed
remedies; and that the fitting remedy for evil counsels is good ones. Believing in the
power of reason as applied through public discussion, they eschewed silence coerced
by law-the argument of force in its worst form. Recognizing the occasional tyrannies
of governing majorities, they amended the Constitution so that free speech and
assembly should be guaranteed.

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opposition into submission,” as well as attacks against judges who rule against it. The
declaration of an attorney who had represented the Church (Joseph A. Yanny),
submitted in an action brought by the Church against him and others, related aspects
of the Church's “fair game” doctrine, including copies of exhibits to demonstrate "the
Cult, according to written policy, will use any means legal or illegal to subvert and
frustrate judicial process against them, and will willingly and knowingly abuse judicial
process in order to attack perceived ‘enemies.’“

(Id., at 641-642) It was therefore an appropriate subject for dismissal pursuant to the anti-

SLAPP statute.

Given some of Scientology’s litigation history, its desire to intimidate and censor is

apparent. Scientology has a clearly manifest policy of suppressing speech about it. Indeed,

the policy would seem to be the more accurate the speech, the greater its compulsion to censor

and suppress it, eliminating it from the marketplace of ideas.

In Church of Scientology v. Siegelman (1979) 475 F.Supp. 950 Scientology sued the

author of a book entitled Snapping: America’s Epidemic Of Sudden Personality Change for

defamation in connection with comments he made on a television interview show. The

statements dealt with the “alleged debilitating physical and psychological effect certain

actions by the Church of Scientology have on its members.” (Id., at 953) The case was

dismissed.

In United States v. Heldt (1981) 668 F2d 1238 the court reviewed indictments and

guilty pleas of high ranking Scientologists who were convicted by means of a Stipulation of

Evidence which detailed their substantive offenses. The indictments were “for completed

conspiracies and substantive offenses involving their plan to identify, locate and obtain by

various illegal means certain documents in the possession of the United States which were

related to Scientology, and their efforts thereafter to obstruct justice by thwarting the

government’s investigation of such criminal activities, by harboring and concealing a fugitive

from arrest, and by causing the making of false declarations under oath before a grand jury.”

(Id., at 1241) The court noted that “those who formulate conspiracies to obstruct justice, steal

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government property, burglarize, bug, harbor fugitives from justice, and commit and suborn

perjury before the grand jury have no constitutional right under the first amendment to

conceal documentary evidence thereof.” The court asserted “freedom of religion is not

endangered but encouraged when criminal conspiracies are suppressed that attempt to hide

behind religion.” (Id., at 1258)

In Church of Scientology v. Cazares (1981) 638 F.2d 1272, Scientology sued the

former mayor of Clearwater for defamation in connection with comments by the mayor

regarding Charles Manson’s alleged history in Scientology, his opposition to bringing a

“helter-skelter world and philosophy” to Clearwater, his dislike for “paramilitary religious

organizations” and that Scientology “was not a religious organization as ‘religion’ was

understood in the Clearwater area, but a ‘rip-off, money motivated operation.’” Summary

judgement dismissal was affirmed. (Id., at 1287-1288)

In Church of Scientology v. Commissioner of Internal Revenue (1984) 83 T.C. 381 in

an extremely lengthy opinion, the court found “When we consider all the facts spread across

the voluminous record in this case, we are left with the inescapable conclusion that one of

petitioner's overriding purposes was to make money. We also conclude that criminal

manipulation of the IRS to maintain its tax exemption (and the exemption of affiliated

churches) was a crucial and purposeful element of petitioner's financial planning. (Id., at 504-

505)

In New Era Publications International v. Henry Holt and Co. (1989) 873 F.2d 576

Scientology unsuccessful sought to enjoin the publication of a book entitled Bare-Faced

Messiah: The True Story Of L. Ron Hubbard.

In United States v. Zolin (1989) 109 S.Ct. 2619, 105 L.Ed.2d 469 the Court addressed

whether the attorney-client privilege between Scientology and some of its attorneys should be

abrogated on the basis “that the legal service was sought or obtained in order to enable or aid

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the client to commit or plan to commit a crime or tort.” (Id. at 2630, 105 L.Ed.2d at 489) The

Supreme Court reversed the Ninth Circuit's ruling in United States v. Zolin (9th Cir. 1987)

809 F.2d 1411 that the Government had not made a sufficient showing that there had been

“illegal advice ... given by [Scientology] attorneys to [Scientology] officials” to invoke the

crime-fraud exception to the attorney-client privilege. Upon reversing and remanding, the

Supreme Court ordered the Ninth Circuit to review partial transcripts of the tape recording

sought by the IRS in a criminal investigation of Scientology to determine whether the crime-

fraud exception to the privilege applied. On remand, this the Ninth Circuit held:

The partial transcripts demonstrate that the purpose of the [Mission Corporate
Category Sort Out] project was to cover up past criminal wrongdoing. The MCCS
project involved the discussion and planning for future frauds against the IRS, in
violation of 18 U.S.C. & 371. [citation.] The figures involved in MCCS admit on the
tapes that they are attempting to confuse and defraud the U.S. Government. The
purpose of the crime-fraud exception is to exclude such transactions from the
protection of the attorney-client privilege.

(United States v. Zolin (9th Cir. 1990) 905 F.2d 1344, 1345. cert. denied, Church of

Scientology v. United States (1991) 111 S.Ct. 1309)

In Hart v. Cult Awareness Network (1993) 13 Cal.App.4th 777 the underlying facts

pertained to Scientology’s ultimately successful effort to destroy the Cult Awareness Network

whose purpose was to “educate the public about the harmful effects of mind control as

practiced by destructive cults and about the unethical or illegal practices they employ.” As a

harassment measure pursuant TO having been identified by Scientology as a “suppressive

group” a CAN representative received almost 500 letters from Scientologists to join CAN.

Upon CAN’s refusal, lawsuits followed.

There is a substantial public interest in trying CSI’s claims against Armstrong with the

full benefit of his defenses.

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Although the rule is based upon the sound public policy of limiting litigation by

preventing a party who has had one fair trial on an issue from again drawing it into

controversy, the “policy must be considered together with the policy that a party shall not be

deprived of a fair adversary proceeding in which fully to present his case.”' (Jorgensen v.

Jorgensen, [1948] 32 Cal.2d 13, 18[, 193 P.2d 728].)

For example, the Restatement Second of Judgments, section 27 states:

"When an issue of fact or law is actually litigated and determined by a valid and final
judgment, and the determination is essential to the judgment, the determination is
conclusive in a subsequent action between the parties, whether on the same or a
different claim." (Rest.2d Judgments (1982) § 27.)

The key operative phrase within the Restatement is the term “actually litigated.” When

no issues have been “drawn into controversy” by a “full presentation” of the case, the policy

favoring one fair trial on the issue is not served. (Teitelbaum Furs, Inc. v. Dominion Ins. Co.,

Ltd., 58 Cal.2d 601, 606)

Teitelbaum addresses the circumstances of a criminal guilty plea and the plaintiff’s

effort to use it in subsequent civil litigation for res judicata purposes. The court said that

when a party who had pleaded guilty to a criminal charge seeks to litigate his cause in a civil

action, collateral estoppel was inappropriate in light of considerations of fairness to civil

litigants and a regard for the expeditious administration of criminal justice.

While losing a summary judgment motion is not the same as pleading guilty to a

crime, in the circumstances of this case the values raised are of substantial policy weight and

necessary in order to avoid a harsh result.

Armstrong never had a trial. Even though the settlement agreement upon which CSI

brought this suit contains language of mutuality, and one of Scientology’s counsel who

negotiated said agreement testified in a declaration that the “gag” conditions went both ways,

Judge Thomas ruled as a matter of law that there was no issue of fact to be tried. This is a

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legal, not a factual determination. Therefore, CSI’s motion in limine must be denied.

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PROOF OF SERVICE

I am employed in the County of Marin, State of California. I am over the age of

eighteen years and am not a party to the above entitled action. My business address is

711 Sir Francis Drake Boulevard, San Anselmo, California. I served the following

documents: DEFENDANT’S OPPOSITION TO MOTION IN LIMINE

on the following person(s) on the date set forth below, by placing a true copy thereof enclosed

in a sealed envelope with postage thereon fully prepaid to be placed in the United States Mail

at San Anselmo, California:

Andrew H. Wilson, Esq.
475 Gate Five Road, Suite 212
Sausalito, CA 94965

ALSO BY FAX

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