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ANDREW H. WILSON, ESQ., SBN 63209
WILSON CAMPILONGO LLP
475 Gate Five Road, Suite 212
Sausalito, CA 94965-1475
Telephone: (415) 289-7100
Facsimile: (415) 289-7110

Attorneys for Plaintiff,
CHURCH OF SCIENTOLOGY INTERNATIONAL

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF MARIN

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INTRODUCTION

Defendant Gerald Armstrong ("Armstrong") answered the Complaint herein, admitting the

commission of the 201 breaches of contract asserted therein and asserting forty four affirmative

defenses. They are identical to the forty three affirmative defenses which he raised in defending

the prior action ("Prior Action") which Plaintiff brought to recover for breach of the very

agreement at issue here, save for the addition of a defense based on the Thirteenth Amendment. In

the Prior Action, this Court adjudicated those defenses against Armstrong, entered a permanent

injunction, a final judgment and an order holding Armstrong in contempt for violation of the

injunction. Armstrong's subsequent appeal was dismissed. Accordingly, Plaintiff hereby moves

for an order precluding the introduction of any evidence on those affirmative defenses on the

ground that Armstrong those defenses were either raised and adjudicated against Armstrong

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PLAINTIFF CHURCH OF SCIENTOLOGY INTERNATIONAL'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF
ARMSTRONG'S AFFIRMATIVE DEFENSES

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in the Prior Action or are based on facts which were alleged by Armstrong in that action and could

have been raised by Armstrong in the Prior Action. Thus, Armstrong is collaterally estopped from

relitigating them as defenses to this action.

ARGUMENT

A. The Facts Upon Which Armstrong's Affirmative Defenses are Based Were

Alleged and At Issue in the Prior Action and the Affirmative Defenses Raised There Are

Virtually Identical to those Raised Here.

Armstrong's Answer in the Prior Action asserted forty three affirmative defenses, which

Mr. Armstrong also asserts here. Compare Plaintiff's Exhibits 3 and 11. The Answer in this

action, Exhibit 11, repeats what Armstrong has repeatedly alleged since the Prior Action was filed:

The Agreement was signed under duress; Armstrong's counsel was pressured, and in turn

pressured Armstrong, into signing the Agreement by telling Armstrong that it was unenforceable;

The Agreement was procured by fraud; The Agreement is illegal because it infringes on

Armstrong's First Amendment rights; The Agreement violates Armstrong's right to freedom of

religion, because his religion, the Church of Wogs, exists to fight Scientology.

All of these defenses and the factual assertions upon which they were based were

adjudicated against Armstrong in the Prior Action. There, Judge Thomas granted the Church's

motion for summary judgment, ruling that the Agreement was not entered into under duress, not

induced by fraud, did not fail for lack of mutuality, did not infringe on First Amendment rights,

and that the liquidated damages provision was valid. Plaintiff's Exhibit 6, pg. 2, ln. 19 - pg. 4, ln.

12. The Order of Permanent Injunction entered October 17, 1995 by Judge Thomas provided that

the Agreement had been freely and voluntarily entered into, Plaintiff's Exhibit 7, and Judgment

was entered on May 2. Plaintiff's Exhibit 8. The Order of Contempt issued by Judge Smith in

2001 references the judgment, provides that the Agreement was valid when entered into and

remains enforceable and then holds Armstrong in contempt for the 131 breaches upon which

Plaintiff seeks to recover here. Plaintiff's Exhibit 11, ¶ 2 at pg. 2, ln. 16.

The only new affirmative defense raised by Armstrong is based on the Thirteenth

Amendment's abolition of slavery, which is based upon the same facts as the other

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PLAINTIFF CHURCH OF SCIENTOLOGY INTERNATIONAL'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF
ARMSTRONG'S AFFIRMATIVE DEFENSES

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affirmative defenses.

B. Armstrong is Collaterally Estopped From Litigating Any Affirmative Defenses

Which Were or Could Have Been Raised in the Prior Action.

The principles of res judicata and collateral estoppel, which work to establish the elements

of Plaintiff's claim, See, Plaintiff's Issue Conference Statement, Section 2 at pg. 3, Ln. 6-13 and

cases cited therein, also apply to preclude introduction of evidence of affirmative defenses based

on issues finally adjudicated in prior proceedings. Torrey Pines Bank v. Superior Court of San

Diego County, 216 Cal. App. 3d 813, 821 (1989) [Dismissal with prejudice of action bars

assertion of affirmative defenses based on identical facts.]. In Torrey Pines, the prior action ended

with a dismissal with prejudice, which the Court held sufficient. Here, the prior action ended in a

final judgment on the merits after entry of orders granting summary judgment and imposing a

permanent injunction. Armstrong's appeal was dismissed.

Torrey Pines relied on Hamilton v. Carpenter, 15 Cal. 2d 130 (1940), in which the Supreme

Court stated the applicable rule as follows:

It is the general rule, applicable to the facts of this case, that 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. Such a judgment was

tendered in bar of the present affirmative defenses based on the issues thereby

determined. When received in evidence it was conclusive between the parties

hereto upon those same matters. (citations) The issues of fraud very definitely

were litigated by these parties in the prior action, both in the trial court and on

appeal, and the court properly refused to receive evidence on the same issues

alleged in the affirmative defenses of the defendant herein. Its finding on the

issue of res judicata is supported by the judgment roll in the former action

which was introduced in evidence in the present action.

15 Cal 2d at 133.

This rule is directly applicable here. The affirmative defenses alleged here are either

identical to those alleged in the Prior Action, or are based on the same facts as those which

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PLAINTIFF CHURCH OF SCIENTOLOGY INTERNATIONAL'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF
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Armstrong alleged in support of his affirmative defenses in the Prior Action. In fact, whether a

particular affirmative defense was actually raised in the Prior Action is of no consequence. When

an issue has been litigated, all inquiry respecting the same matter is foreclosed, not only as to

matters heard but also to matters that could have been heard in support of or in opposition thereto.

Gates v. Superior Court of Los Angeles County, 178 Cal. App. 3d 301, 308 (1986) ["...if the

second action involves a right, title or issue as to which the judgment in the first action is a

conclusive adjudication, the estoppel so far as that right, title or issue is concerned must likewise

extend to every matter which was or might have been urged to sustain or defeat the determination

actually made."]

CONCLUSION

Armstrong's affirmative defenses either were, or could have been, raised by Armstrong in

the Prior Action and/or are based upon facts identical to which Armstrong raised in the Prior

Action. Either way, he should be precluded from introducing evidence on them.

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PLAINTIFF CHURCH OF SCIENTOLOGY INTERNATIONAL'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF
ARMSTRONG'S AFFIRMATIVE DEFENSES

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PROOF OF SERVICE

          I, the undersigned, declare:

          I am employed in the County of Marin, State of California. I am over the age of 18 and not a party
to the within action; my business address is 475 Gate 5 Road, Suite 212, Sausalito, California 94965.

          On April 2, 2004 I served the foregoing document(s) described as follows:

PLAINTIFF CHURCH OF SCIENTOLOGY INTERNATIONAL'S MOTION IN LIMINE
          TO EXCLUDE EVIDENCE OF ARMSTRONG'S AFFIRMATIVE DEFENSES

on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed
as stated on the attached service list, as follows:

               BY U.S. MAIL:

  XX        BY FEDERAL EXPRESS OR OVERNIGHT COURIER

               BY HAND DELIVERY

Gerald Armstrong
IUP-45950 Alexander Avenue
Chilliwack, B.C. V2P 1L5
Canada

Executed on April 2, 2004, at Sausalito, California

  XX        (State) I declare under penalty of perjury under the laws of the State of California that the above is
true and correct.

               (Federal) I declare that I am employed in the office of a member of the bar of this Court at whose
direction the service was made.

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PLAINTIFF CHURCH OF SCIENTOLOGY INTERNATIONAL'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF
ARMSTRONG'S AFFIRMATIVE DEFENSES