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28		  Gerry Armstrong
#2-46298 Yale Road
Chilliwack, B.C. V2P 2P6
Canada
gerry@gerryarmstrong.org
604-703-1373
In Propria Persona




SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF MARIN

CHURCH OF SCIENTOLOGY INTERNATIONAL,

Plaintiff,

vs.

GERALD ARMSTRONG,

Defendant.





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 Case  No. CV 021632
Consolidated with Cases Nos. 152229 and 157680

DEFENDANT GERRY ARMSTRONG’S
OPPOSITION TO PLAINTIFF
SCIENTOLOGY’S MOTION TO
REINSTATE JAIL SENTENCES AGAINST
HIM AND TO ISSUE WARRANTS FOR HIS
ARREST; DECLARATION OF GERRY
ARMSTRONG IN SUPPORT

Date:   September 7, 2007
Time:  9:00 a.m.
Department L
   

I. INTRODUCTION

Scientology moves this Court to reinstate sentences against Armstrong that at trial on

April 9, 2004 and in its order re sentences of May 20, 2004 this Court found unconscionable and

remitted or otherwise discharged, and to have a warrant issued for his arrest. Armstrong opposes

Scientology’s motion on the basis that it is premature and if granted prematurely would impermissibly

deprive him of his rights including due process.

II. STATEMENT OF FACTS

Scientology filed this case against Robert Minton, the Lisa McPherson Trust (“LMT”)

and Armstrong on April 2, 2002, seeking $10,050,000 in “liquidated damages” against Armstrong for

204 (sic) alleged violations of a “contract” he was coerced and tricked into signing in December 1986,
 

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28		  supposedly to “settle” his cross-complaint in Scientology v. Armstrong, Los Angeles Superior Court

case no. C 420153. Declaration of Gerry Armstrong in support hereof (“GA Dec” 2:3-8, Ex. A)

On June 6, 2003, Scientology dismissed its claims against Mr. Minton and the LMT.

On April 9, 2004, this Court conducted a trial on Scientology’s liquidated damages claim.

Armstrong was represented at trial by attorney Ford Greene, and has waived the attorney-client privilege

with Mr. Greene as to the communications between them described herein and in Armstrong’s

opposition that are necessary to support the opposition. At the end of the trial, this Court also remitted or

otherwise discharged jail sentences and fines against Armstrong then instated for his alleged violations

of an injunction signed by former Superior Court Judge Gary W. Thomas and filed October 17, 1995 in

Scientology v. Armstrong, Marin Superior Court case no. 157680, consolidated with this case. (GA Dec

2:11-19, Ex. B)

Over the three months following the trial, Mr. Greene and Scientology’s attorney Andrew

Wilson engaged in an exchange of communications in a supposed attempt to agree on the language of a

judgment to be submitted to this Court for signing and filing.  At one point, this Court apparently

suggested or ordered that the attorneys physically meet to try to agree on the language of the judgment.

On July 12, 2004, Mr. Greene advised Armstrong that Mr. Greene had that day learned from Mr. Wilson

that on May 20, 2004 this Court had itself issued an order entitled “Order Granting Plaintiff’s Motion for

Judgment .” Mr. Greene advised Armstrong that Mr. Greene had not received this order from the Court

and did not know of its existence until Mr. Wilson told him about it. Mr. Greene also advised Armstrong

that on July 12 he went to the office of the Clerk of the Marin Superior Court and obtained a copy of this

order. That date is shown by Mr. Greene’s “Received” stamp on the order. (GA Dec 2:20-3:5, Ex. C)

On July 12, 2004, Mr. Greene also advised Armstrong that he had also learned that day

from Mr. Wilson that on May 20, 2004 this Court had also issued an order entitled “Order Re Sentences

for Contempt ,” and on July 12 Mr. Greene obtained a copy of that order as well from the Clerk of the

Court. (GA Dec 3:6-10, Ex. D)

On July 15, 2004, Scientology filed its notice of appeal from this Court’s Order Granting

Plaintiff’s Motion for Judgment, identifying the order as “the judgment in favor of Respondent

GERALD ARMSTRONG.” (GA Dec 3:11-14, Ex. E)

Concurrent with filing its notice of appeal, Scientology filed a petition for a writ of

certiorari or writ of mandate in the Court of Appeal, First Appellate District case No. A107095, and filed

a motion to consolidate the writ petition and the appeal.
         
 

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On July 20, 2004, the Court of Appeal issued an Order to Show Cause, granting

Scientology’s motion to consolidate the petition for writ of certiorari or mandate (A107095) with

Scientology’s appeal (A107100) and ordering the Marin Superior Court as Respondent to show cause

why the petition should not be granted.

On August 23, 2004, Scientology filed its appellant’s opening brief.

On December 6, 2004, Armstrong filed his respondent’s brief in which he argued that

Scientology’s legal remedy was not to try to get the Court of Appeal to overturn the trial court’s

unconscionability ruling, but to avail itself of an evidentiary hearing in the trial court as provided by

C.C.C. §1670.5 and present evidence as to the contract’s commercial setting, purpose and effect to

attempt to convince the trial court that the clause that was ruled unconscionable was actually

conscionable. Armstrong also argued that he was also to be afforded such an opportunity as he was

claiming to the Court that clauses in Scientology’s contract were unconscionable, and he renews that

claim and that request for such opportunity now. GA Dec 3:25-4:6, Ex. F.

On December 7, 2004, Armstrong filed his brief in opposition to Scientology’s petition

for a writ of certiorari or mandate.

On February 16, 2005, Scientology filed its reply brief in support of its petition for writ

of certiorari or mandate.

On September 2, 2005, Scientology submitted to the Court of Appeal a request for

dismissal of its appeal.

On September 8, 2005, the Court of Appeal issued an order dismissing the appeal but

maintaining the writ petition and oral argument therein.


attorney of record herein and in Scientology’s appeal and writ petition, and requested his client’s

agreement to the setting of a C.C.C. §1670.5 evidentiary hearing in this Court on the commercial setting,

purpose and effect of Scientology’s contract. (GA Dec 4:17-20, Ex. G)

On October 19, 2005, the Court of Appeal issued an opinion granting Scientology’s writ

petition and reinstating the jail sentences and fines against Armstrong.  (Scientology’s motion, Ex. A)

Scientology’s attorneys have not responded to Armstrong’s letter requesting their client

agree to the setting of a C.C.C. §1670.5 hearing. (GA Dec 4:24,25)

On January 12, 2006, remittitur issued in both Scientology’s writ petition (Scientology’s

motion, Ex. B) and in Scientology’s voluntarily dismissed appeal. (GA Dec 4:26-5:2, Ex. H)
 
 

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On August 7, 2007, Scientology filed its motion to have this Court reinstate sentences

and issue a warrant for Armstrong’s arrest.

III. ARGUMENT

A.  The guiding and governing statute in this situation is C.C.C § 1670.5

C.C.C. § 1670.5 states:

          (a) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.
          (b) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect to aid the court in making the determination.

As early as the April 9, 2004 trial, it clearly appeared to this Court that at least some

clause of Scientology’s contract was unconscionable, and Armstrong has had the right at least from that

date as provided by C.C.C. §1670.5 to a reasonable opportunity to present evidence as to the contract’s

commercial setting, purpose and effect. “Shall” in this statute, of course, makes the affording of this

opportunity mandatory. Armstrong has never been afforded this statutorily mandated opportunity to

present such evidence, and he has moved this Court separately to afford him such an opportunity now, in

the form of an evidentiary hearing. The Marin Superior Court Calendar Clerk has given him a hearing

date of October 5, 2007 at 09:00 in Department L. Armstrong incorporates that herein in its totality.

Armstrong is moreover himself claiming to this Court that certain other clauses of

Scientology’s contract are unconscionable and have had provable unconscionable results. In addition to

his right to an evidentiary hearing by the appearance of unconscionability to this Court, Armstrong’s

claim to this Court also creates a right mandated by C.C.C. §1670.5 to a reasonable opportunity for him

to present evidence as to the contract’s commercial setting, purpose and effect. On this basis as well he

has moved this Court to set an evidentiary hearing to afford him such an opportunity.

It is true that Armstrong has been claiming and complaining, essentially, that the contract

contains unconscionable clauses with unconscionable results from the day in December 1986 when it

was first given to him to sign. These clauses and their results apparently did not, however, appear

unconscionable to former Marin Superior Court Judge Gary W. Thomas, who did not refuse to enforce

these unconscionable clauses and did not limit their application to avoid unconscionable results. Indeed,
 

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28		 this Court’s later determination of unconscionability and its limitation of the application to avoid

unconscionable results cannot but lead to the conclusion that Judge Thomas’ grant to Scientology of

these unconscionable results, under color of law, was itself unconscionable.

Although the Marin Superior Court for a decade could and did ignore all Armstrong’s

claims of unconscionability and deny him the evidentiary hearing he was legally due on the contract’s

commercial setting, purpose and effect, the appearance of unconscionability to this Court in 2004,

indeed the determination of unconscionability, cannot but end this denial. This Court certainly cannot

ignore its own determination of unconscionability, and therefore cannot but afford Armstrong the

opportunity to present the evidence C.C.C. §1670.5 specifies.

B.  It is premature, and unconscionable, to reinstate the sentences and otherwise

punish Armstrong prior to affording him the opportunity C.C.C. §1670.5 provides.

At an evidentiary hearing on the contract’s commercial setting, purpose and effect,

Armstrong will demonstrate that the injunction in this case is itself an unconscionable result from the

application of the contract’s unconscionable clauses. The sentences that Scientology has moved this

Court to reinstate are further unconscionable results from the application of the contract’s

unconscionable clauses. Indeed, this Court has already determined that the sentences are unconscionable

results, and in its function of “polic[ing] explicitly against the contracts or clauses [found] to be

unconscionable,”1  acted to prevent those unconscionable results. What Scientology is doing here with its

motion to reinstate sentences against Armstrong and have warrants issued for his arrest, the punishment

Scientology seeks to inflict on him, the threat the organization seeks to subject him to, the expenses and

time involved, and the threat, hardship and heartache these things cause others, are all unconscionable

acts and unconscionable results from application of unconscionable clauses in Scientology’s contract. It

would therefore be woefully premature, and unconscionable, to reinstate these unconscionable sentences
____________________
1 Maciejewski v. Alpha Systems Lab, Inc. (1999) 73 Cal.App.4th 1372 (note 1)

The doctrine of unconscionability is codified in Civil Code section 1670.5, which had its genesis in the Uniform Commercial Code, section 2-302. The Legislative Committee Comment to Civil Code section 1670.5 explains, "Section 1670.5 is intended to make it possible for the courts to police explicitly against the contracts or clauses which they find to be unconscionable. . . . The basis test is whether, in the light of the general background and the needs of the particular case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. . . . The principle is one of the prevention of oppression and unfair surprise . . . and not of disturbance of allocation of risks because of superior bargaining power." The two slightly different analyses were reconciled in Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, where the Supreme Court explained, "Graham v. Scissor-Tail, Inc. comports somewhat more closely to the California precedent; A&M Produce conforms more closely to the Uniform Commercial Code and the cases decided under that code. Both pathways should lead to the same result."
 

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28		 against Armstrong prior to holding a hearing on the contract’s commercial setting, purpose and effect,

since such a hearing would show the injunction to be an unconscionable result and would obviate

reinstating the unconscionable sentences. Armstrong therefore asks this Court to deny, or stay

Scientology’s motion to reinstate the sentences against him and issue warrants for his arrest until after

the evidentiary hearing.

Armstrong also contends that if he is permitted, as by statute he must be, to present

evidence as to the contract’s commercial setting, purpose and effect, he will demonstrate that not only

would it be unconscionable to punish him beyond what the benefit was that was conferred to him in

1986 in settling his claims against Scientology, but it is also unconscionable to punish him below or up

to that benefit. There is no essential difference whatsoever between the unidentified ten “violations” of

the contract that result in the punishment of $500,000, and the hundreds or hundreds of thousands of

“violations” that result in punishment of over $9,500,000 that has already been adjudged

unconscionable. An evidentiary hearing on the contract’s commercial setting will show that there was no

negotiation whatsoever about the unconscionable liquidated damages amount, and that there is no

reasonable relationship between what damage Scientology actually suffers from one of Armstrong’s

utterances and the $50,000 penalty per utterance, and the difference in bargaining power between the

parties was gargantuan. Since an evidentiary hearing in compliance with C.C.C. §1670.5 would

demonstrate that the $500,000 Scientology seeks from Armstrong is an unconscionable result from the

application of an unconscionable clause, and consequently would obviate any efforts to collect that

money, Armstrong has also moved this Court to stay Scientology’s pending Order of Examination and

any other actions to collect money from him until after the evidentiary hearing, and after this Court’s

further determination of any clause’s unconscionability.

C.  Res judicata and collateral estoppel cannot bar the remedy C.C.C. §1670.5

provides.

Ford Greene, Armstrong’s attorney when the case was before Judge Thomas, argued

unconscionability in both the contract’s liquidated damages clause (GA Dec. Ex. A, para. 7D) and in the

injunctive relief clause (GA Dec. Ex. A, para. 20)

As the basis for injunctive relief, Scientology relies upon the legal conclusion that the
agreement can be specifically enforced. (Moving Memorandum at p. 16:3-25.) Upon
applying Civil Code section 3391 to the circumstances of this case, however, Armstrong
cannot be compelled to specifically perform the agreement. [ ] An injunction cannot be
granted to prevent the breach of a contract, the performance of which would not be
specifically enforced. (Thayer Plymouth Center, Inc. v. Chrysler Motors Corp. (1967)
 

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255 Cal.App.2d 300, 304, 63 Ca1.Rptr. 148.)

It is rote that "equity will not lend its aid to enforce contracts which upon their face are so
manifestly harsh and oppressive as to shock the conscience; it must be affirmatively
shown that such contracts are fair and just." (Jacklich v. Baer (1943) 57 Cal.App.2d 684,
135 P.2d 179, 183.) The rationale for this rule is grounded in a common sense recognition
of the rules of fair play, not fair game.

It is said . . . that the doctrine that he who seeks equity must do equity
means that the party asking the aid of the court must stand in a
conscientious relation to his adversary; that the transaction from which his
claim arises must be fair and just and that the relief itself must not be
harsh and oppressive upon the defendant. And that specific performance
will always be refused when a contract itself is unfair, one-sided,
unconscionable, or affected by any other such inequitable feature, and
when specific performance would be oppressive upon the defendant, or
would prevent the enjoyment of his own rights, or would in any other
manner work injustice.

(Id, 135 P.2d at 184; Chrittenden v. Hansen (1943) 59 Cal.App.2d 56, 138 P.2d 37, 38.)
The burden is on the plaintiff to plead and prove "that the contract is not inequitable or
unconscionable" in order to support a decree of specific performance. ( Quan v.
Kraseman (1948) 84 Cal.App.2d 550, 191 P.2d 16, 17.)

Defendant’s opposition to motion for summary adjudication on the 20th cause of action filed September

18, 1995. (GA Dec 5:6-15,  Ex I, 15:7-21)

IV. THE LIQUIDATED DAMAGES PROVISIONS ARE UNCONSCIONABLE
Civil Code section 1670.5 provides in part

(a) If the court as a matter of law finds the contract or any clause of the
contract to have been unconscionable at the time it was made the court
may refuse to enforce the contract, or it may enforce the remainder of the
contract without the unconscionable clause, or it may limit the application
of any unconscionable clause as to avoid any unconscionable result.

The doctrine of unconscionability applies to all provisions of all contracts. ( H.S.
Perlin, supra 209 Cal.App.3d at p. 1300.) It has both a procedural and substantive element.

The procedural element focuses on two factors: "oppression" and
"surprise." [Citations.] "Oppression arises from an inequality of bargaining
power which results in no real negotiation and "an absence of meaningful
choice." [Citations.] ... no precise definition of substantive
unconscionability can be proffered. Cases have talked in terms of "overly
 

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harsh" or "one-sided" results. [Citations.] One commentator has pointed
out, however, that "... unconscionability turns not only on a 'one- sided'
result, but also on an absence of 'justification' for it [citation] . . . The most
detailed and specific commentaries observe that a contract is largely an
allocation of risks between the parties, and therefore that a contractual
term is substantively suspect if it reallocates the risks of their bargain in an
objectively unreasonable or unexpected manner. [Citations.] But not all
unreasonable risk allocations are unconscionable; rather, enforceability of
the clause is tied to the procedural aspects of unconscionability [citation]
such that the greater the ... inequality of bargaining power, the less
unreasonable the risk allocation which will be tolerated.
(Id. at 1301) 2
---------------------------------------
2 The first court to have reviewed the settlement agreement said, "So my belief is Judge
Breckenridge, being a very careful judge... if ,he had been presented with that whole
agreement and if he had been asked to order its performance, he would have dug his feet
in because that is one ... I'll say one of the most ambiguous, one-sided agreements that I
have ever read. And I would have not ordered the enforcement of hardly any of the terms
if I had been asked to, even on the threat that okay, the case is not settled. [¶] I know we
like to settle cases. But we don't like to settle cases and, in effect, prostrate the court
system into making an order which is not fair or in the public interest." (Sep.St. ¶ 100)
[GA Dec 5:25-6:2, Ex. L]
----------------------------------------
In the instant case, there is serious unconscionability in the procedural sense given
the inequality of bargaining power between Scientology and Armstrong, as discussed
above and set forth in greater detail; in Armstrong's separate statement. What is most
obvious is the substantive unconscionability. It is clear that as Scientology seeks to have
it enforced the agreement is one-sided: Scientology can slander Armstrong and he must
remain mute or get hit with a $50,000 liquidated damage assessment: What is the
possibly justification for such a one-sided agreement? If you listen to Scientology, it is
because Armstrong is a liar and fomenter of anti-Scientology litigation. But if what
Scientology says is true, you must throw out the decision of Judge Breckenridge which
has been affirmed on appeal in a published decision. That makes no sense. It makes no
sense to accept the characterization of an organization that has a long recorded history of
abuse of individuals and the legal system and to disregard a well-respected superior court
judge.

The only way that the liquidated damage provision makes sense is if Scientology
had in fact foresworn its policy and practice of fair game. If that, in fact, was true, then
Scientology could be hurt by the constant resurgence of its dirty past. Assuming without
conceding the truth of the forgoing proposition, Scientology never gave up fair game
because it proceeded to slander Armstrong almost as soon as the ink had dried on the
paper in an effort to dead agent him through black propaganda. This being the case, there
is no objective harm that the liquidated damage provisions could cure because what
Armstrong had to say was the truth. The only way that the truth could be harmful to
 

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Scientology was if Scientology was trying to suppress the truth while continuing to
engage in illegality and misconduct which then brings one back to the argument that the
agreement is void because it violates public policy.

In sum, whichever way one analyses the liquidated damage provisions, one can
only conclude that one way or the other said provisions are unconscionable and should
not be enforced.

Defendant’s opposition to motion for summary adjudication on the 13th, 16th, 17th and 19th causes of

action filed September 18, 1995. (GA Dec 5:16-24, Ex. J, 5:19-7:10)

In none of Judge Thomas’ grants of Scientology’s summary adjudication motions, in the

injunction he signed, or in the judgment in the case does he address the unconscionability issue. See,

e.g., the judgment filed May 2, 1996 following summary adjudication on the 13th, 16th, 17th and 19th

causes of action. (GA Dec 5:22-24, Ex. K) Even if he had dealt properly with the unconscionability

issue and defense, Judge Thomas’ rulings did not prevent this Court’s conscience from later being

shocked, and Scientology could not employ the doctrines of res judicata and collateral estoppel, as this

Court has shown, to make unconscionable contractual clauses conscionable. Clearly then,

unconscionability must be an exception to res judicata and collateral estoppel and these doctrines cannot

be employed to prevent the remedy to unconscionability provided by C.C.C. §1670.5.

D.  This Court has already identified other indicia of unconscionability

This Court stated at trial in April 2004:

AND THAT PARTICULAR PROVISION WAS NOT BILATERAL, IT WAS
UNILATERAL. SO THAT EVEN IF THE CHURCH SAID HORRIBLE THINGS
ABOUT MR. ARMSTRONG, HE IS NOT JUSTIFIED TO VIOLATE THE TERMS OF
THE SETTLEMENT AGREEMENT
(GA Dec Ex. B, 56:12-16)

LIQUIDATED DAMAGES HAVE TO BE REASONABLE. I THINK IT'S
UNREASONABLE TO GO BEYOND THE AMOUNT THAT WAS PAID TO MR.
ARMSTRONG.
(GA Dec Ex. B, 57: 21-23)

IV. CONCLUSION

Now that this Court has rendered a judgment that determined the results of two clauses of

Scientology’s contract were unconscionable, Scientology has dismissed its appeal from that judgment,

and remittitur has issued in Scientology’s voluntarily dismissed appeal, the proper remedy for both
 

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28		 Scientology and Armstrong is that provided by C.C.C. §1670.5, specifically an evidentiary hearing on

the contract’s commercial setting, purpose, and effect to aid the court. It could not but be premature and

unconscionable to reinstate the sentences against Armstrong and issue a warrant for his arrest without

first affording him the remedy C.C.C. §1670.5 provides. Armstrong has filed a motion separately to

have this Court set such an evidentiary hearing.|

He therefore asks that Scientology’s motion be denied or stayed, and that any other

actions to collect money from him or otherwise punish him be stayed until after the evidentiary hearing,

and after this Court’s further determination of any clause’s unconscionability.

Dated:  August 30, 2007    Respectfully submitted,

   Gerry ArmstrongGerry Armstrong
 

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 PROOF OF SERVICE

I am over the age of eighteen years and am not a party to the within action. My business

address is #2-46298 Yale Road, Chilliwack, B.C. V2P 2P6 Canada

I served the following document:


DEFENDANT GERRY ARMSTRONG’S OPPOSITION TO PLAINTIFF SCIENTOLOGY’S
MOTION TO REINSTATE JAIL SENTENCES AGAINST HIM AND TO ISSUE WARRANTS
FOR HIS ARREST; DECLARATION OF GERRY ARMSTRONG IN SUPPORT

on the following person on the date set forth below, by UPS Overnight Courier to the addressee below:

Kendrick L. Moxon, Esquire
Moxon & Kobrin
3055 Wilshire Blvd., Suite 900
Los Angeles, CA 90010

and by e-mail to: kmoxon@earthlink.net

I declare under penalty of perjury under the laws of California, the United States and Canada

that the above is true and correct.

Executed on August 30, 2007 at Chilliwack, B.C., Canada.
Caroline Letkeman_________________
Caroline Letkeman







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