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Note: The notation “Not to Be Published” means that this opinion, which follows, is not to be published in official reports and may not be cited to, or relied upon. Appellate opinions that are published in official reports may be cited to, and act as precedent. The unpublished opinion may be cited to or relied upon when it is relevant under the doctrines of law of the case, res judicata, or collateral estoppel, or when it is relevant to a criminal proceeding because it states reasons for a decision affecting the same defendant or respondent.
California Rules of Court, No. 977 http://www.courtinfo.ca.gov/rules/titlethree/title3-61.htm

This opinion, while not usable in most legal proceedings involving Scientology, is very instructive regarding the cult’s litigation fair game practices in the 1990’s, and can and should be cited to and used by those of us who oppose the cult in other arenas.

GA

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from judgments of the Superior Court of

Los Angeles County. Raymond Cardenas, Judge. Affirmed.

William T. Drescher, attorney for Plaintiffs and

Appellants, Religious Technology Center; Eric M. Lieberman

et al., attorneys for Plaintiffs and Appellants, Church of

Scientology International.

Lewis, D'Amato, Brisbois & Bisgaard; David B.

Parker, Jayesh Patel, Matthew D. Berger, Joseph A. Yanny,

attorneys for Defendants and Respondents Joseph A Yanny,

et al.

2.

STANIFORTH, J., Dissenting:

The plaintiffs (appellants) are the Religious

Technology Center ("RTC")¹ Church of Scientology of California

("CSC"), (collectively, Scientology) brought this action

against their former attorney Joseph A. Yanny (Yanny)² seeking

a permanent injunction and damages. Yanny by cross-complaint

sought payment for legal services rendered Scientology

Churches. The trial commenced before a jury. Four weeks into

the jury trial Scientology waived their damages claim,

whereupon the trial was bifurcated. The jury was to determine

the legal issues (Yanny's cross-complaint) and the equitable

issue (injunctive relief) was to be determined by the court.

Scientology's complaint against Yanny and members

of his firm was for breach of fiduciary duty, breach of

contract, tortious breach of the covenant of good faith and

fair dealing, constructive fraud, fraud, intentional

interference with contract, civil conspiracy and

¹ RTC has been joined in this brief by the other two
plaintiffs-appellants, Church of Scientology of California
("CSC") and Church of Scientology International ("CSI").
RTC, CSC and CSI are collectively referred to hereafter as
"Appellants" or "Scientology."

² Also named as defendants were several associates who
had worked for Yanny during the relevant time, including
Richard Wynne, Lisa Wilske, Mary Grieco, and Karen McRae,
counsel to an individual, Vicki Aznaran.

3.

conversion. Scientology charged, among other things, that

Yanny was orchestrating a number of lawsuits against them.

Yanny cross-complained for the legal fees owed him.

After a 41-day trial (3 months) the jury awarded

Yanny $154,000 damages as attorney fees owed. After

hearing the equitable claims the trial court denied

injunctive relief. Scientology appeals the adverse

judgments.

CONTENTIONS

Scientology contends Yanny and his counsel, Van

Sickle, were guilty of deliberate pervasive misconduct so

prejudicial as to require reversal; that the trial court

failed to instruct as to willful suppression of evidence;

and there is a lack of substantial evidence to support the

jury award to Yanny. Finally it is urged the trial court

erred in refusing to enjoin Yanny from "continuing to aid

litigation adversaries in substantially related matters" to

his previous employment as attorney for Scientology.

PROCEEDINGS BELOW

Scientology's complaint (filed June 1988, amended

August 1988) charged Yanny and his professional corporation

and associates with submitting false or inflated bills and

thus breach of contract (second cause of action) and

4.

engaged in fraud (fourth cause of action). Plaintiffs also

charged Yanny, as well as Herzig & Yanny, with conversion

based on their failure to return, among other items, the

$150,000 retainer paid Yanny (ninth cause of action), and

with fraud for having knowingly made false representations

as to Yanny's responsibility for papers served but not

filed in a lawsuit in which Yanny represented RTC (sixth

cause of action).³

On August 4, 1988, the court entered a preliminary

injunction prohibiting Yanny, Wynne, and McRae from

disclosing or encouraging the disclosure of confidences

obtained during their attorney-client relationship with

plaintiffs.⁴

In February 1989, Yanny, filed a cross-complaint
against Scientology. Yanny charged Scientology had not
paid a bill submitted in January 1988 for the period

³ The legal issues submitted in this appeal are no
different to those briefed in Scientology's second lawsuit
against respondent Yanny. This was a later filed lawsuit,
briefed before this particular appeal. Respondents request
this court to take judicial notice of this case in the
Second Appellate District, Division III, case No. B068261,
an appeal from the judgment of a Superior Court of
California, County of Los Angeles, case No. BC033035.

⁴ This preliminary injunction was based upon the sworn
testimony of two persons who were later, upon trial, found
not worthy of belief.

5.

October through December 1987 for legal services and

expenses. He also asserted causes of action for breach of

contract (first cause of action), for account stated

(second cause of action), for work, labor and services

(third cause of action), and for book account (fourth cause

of action). In addition, Yanny alleged a cause of action

for quantum merit for $10,500,000, on the ground that

plaintiffs had purportedly been unjustly enriched by this

sum. The reasonable value of the cross-claimants' services

were sought (fifth cause of action). Finally, Yanny

claimed that plaintiff exploited him in breach of their

covenant of good faith and fair dealing (sixth cause of

action). Yanny's plaintiff cross-complaint sought both

compensatory and punitive damages.

FACTS

We accept the trial court summary of the evidence

relevant to the injunctive issues. These findings are

supported by substantial evidence.

The trial court found:

"An attorney-client relationship existed
between Yanny on the one hand and plaintiffs
on another giving rise to certain fiduciary,
contractual and ethical duties which Yanny
continued to owe to plaintiffs after the
attorney-client relationship terminated."

6.

"The evidence admitted at trial established
that after plaintiffs and Yanny became
involved in a dispute over attorney's fees
and also the $150,000.00 retainer [the jury
found that the retainer was not refundable],
plaintiffs' agents Marty Rathbun and attorney
Earle Cooley questioned Yanny's integrity and
reputation and attacked his motives by
attempting to convince Vicki Aznaran not to
assist Yanny in any way. As provided in Case
Law and the Evidence Code, such conduct by
plaintiffs, acting through their agents,
partially waived the attorney-client
privilege which existed and allowed Yanny to
act to protect his interest with respect to
his legal reputation and his right to receive
payment for legal services rendered in
1987-1988, and to establish his right to the
$150,000.00 retainer. At the outset,
therefore, plaintiffs waived their right that
Yanny not breach the duty of confidentiality
or loyalty with respect to matters and
confidences that were relevant to the legal
dispute between the parties. There was no
waiver with respect to confidences unrelated
to the dispute.

"The evidence admitted at trial with respect
to Yanny established the following:

"(a) Yanny allowed his friends, the Aznarans
and Karen McRae, to stay at his house for a
period varying between one and two weeks in
the latter part of March 1988;

"(b) Yanny discussed Scientology doctrines
and listened as Vicki Aznaran (former
president of RTC) and Richard Aznaran told of
their mistreatment by plaintiffs while he
(Yanny) was seeking evidence in support of his
claims against plaintiffs. As for the alleged
breach of confidences, there is insufficient
evidence to prove that Yanny disclosed a
client's confidences or secrets. Much has
been made about Yanny's knowledge of
Scientology's litigation strategies and

7.

weaknesses; however, there was insufficient
proof that Yanny disclosed and then held
secrets. The evidence disclosed that
litigation strategies and weaknesses of
plaintiffs were well known to Vicki Aznaran,
former President of RTC. Moreover, it was
evident (from the evidence) that 'many members
of the firm were aware of and familiar with
the Wollersheim v. Scientology case which
published those things that plaintiffs contend
were secret litigation weakness and tactics.'"

"The court was asked to accept the often
conflicting and highly impeached testimony of
Dorothy Peti as it related to Yanny's
conversations with the Aznarans, McRae, Bent
Corydon, Lisa Wilske and Mary Grieco at the
Hermosa Beach gatherings in March 1988. The
court finds that Dorothy Peti's testimony
lacked the credibility necessary to support a
court's finding that Yanny, Wynne and McRae
individually or jointly violated duties owed
to plaintiffs."⁵

"Yanny inquired into the ethical questions
raised by his possible representation of the
Aznarans against plaintiffs, but concluded,
for various reasons, that he would not
represent the Aznarans. The evidence
established that while Yanny may have
indicated that he felt he could represent the
Aznarans, he elected not to do so. Even if he
had, such representation would not have
necessarily resulted in a breach of Yanny's
ethical obligations, as adverse representation
is permissible under certain conditions.
(Wutchumna Water Co. v. Bailey (1932) 216 Cal.
564.)"

⁵ A dispassionate reading of the Dorothy Peti's testimony
points directly to the falsity of Scientology's claims of
Yanny "revealing" any "secrets" of Scientology. There is a
strong suspicion that Peti was a "plant," a spy on behalf
of Scientology. She reported directly to the Scientology
attorneys.

8.

"Yanny assisted the Aznarans in their search
for experienced counsel to represent them
against plaintiffs."

The court found that Yanny's assistance in this

regard including transporting the Aznarans to other

attorneys' offices did not constitute a breach of duties

owed plaintiffs. There was insufficient evidence to

establish that Yanny rendered legal assistance to any

prospective attorneys.

The court concluded:

"Yanny was and is an aggressive attorney who
is apparently driven by an all-consuming
desire to right the wrongs that he believes
plaintiffs have committed over the years with
respect to him and others. It is this state
of mind that blurs his objectivity and has
caused Yanny to appear to lose sight of his
continuing professional responsibility to the
plaintiffs, his former clients--a duty of
confidentiality which he will bear so long as
he is an attorney. Although Yanny's conduct
suggests a ready willingness to disregard
legal and ethical responsibilities owed to
his former clients, the fact is that
plaintiffs failed to prove the allegations of
the complaint and did not establish by the
evidence the necessary prerequisites for the
issuance of permanent injunction."

Scientology's "undisputed facts" were not

accepted by the trial court. More than substantial

evidence supports the trial court's denial of injunctive

9.

relief. A dispassionate reading of the reporter's

transcript cited by Scientology leads to these

conclusions: (1) There was no evidence presented of

Yanny entering into any representation of any person, any

prospective adversary to Scientology; (2) There is a

total lack of evidence that Yanny breached any particular

or general fiduciary duties of confidentiality and

loyalty owed to his former client.

I

DISCUSSION

Concerning the standard of appellate review of

disqualification proceedings this court said in H.F.

Ahmanson & Co. v. Salomon Brothers, Inc. & Co., supra,

229 Cal.App.3d 1445 at p. 1451: "In our review of

disqualification motions, as elsewhere, the judgment of

the lower court is presumed correct and all intendments

and presumptions are indulged to support it on matters as

to which the record is silent. (Centinela Hospital Ass.

v. City of Inglewood (1990) 225 Cal.App.3d 1586.)

Conflicts in the declarations are resolved in favor

of the prevailing party and the trial court's resolution of

factual issues arising from competing declarations is

conclusive on the reviewing court. [Citations.]"

10.

See also In re Marriage of Zimmerman (1993) 16

Cal.App.4th 556, 561-562; In re Complex Asbestos

Litigation, 232 Cal.App.3d 572, 667, 671; Higdon v.

Superior Court, 227 Cal.App.3d 1667, 1671.

II

This court in H. F. Ahmanson & Co. v. Salomon

Brothers, Inc., supra, 229 Cal.App.3d 1445, 1451

stated:

"It is beyond dispute a court may
disqualify an attorney from representing a
client with interests adverse of a former
client. (Wutchumna Water Co. v. Bailey
(1932) 216 Cal. 564, 573-574; Gregori v.
Bank of America (1989) 207 Cal.App.3d 291,
298.) In re Marriage of Zimmerman, supra,
16 Cal.App.4th 556, 562-563, disqualifica-
tion in cases of successive representation
is based on the prohibition against
'employment adverse to a . . . former client
where, by reason of the representation of
the . . . former client, the [attorney] has
obtained confidential information material
to the employment . . . .'" (Rule 3-310,
Rules Prof. Conduct [23 West's Ann. Civ. &
Crim. court Rules, pt. 2 (1990 Supp.) p.
445; Deering's Ann. Rules of Court (1991
pocket pt.) p. 19].)

Scientology cites a host of cases holding the

fiduciary duties of an attorney include the obligation to

refrain from aiding parties with interests adverse to the

interests of the attorney's former clients in matters

11.

which are substantially related to matters the attorney

handled in representing the former clients. (See, e.g.,

People ex rel. Deukmejian v. Brown, 41 Cal.3d 150,

156-57; Western Continental Operating Co. v. Natural Gas

Corp. (1989) 212 Cal.App.3d 752, 758-60; In re Jessica

B. (1989) 207 Cal.App.3d 504, 511-12; River West, Inc.

v. Nickel, supra, 188 Cal.App.3d 1297, 1302-04; Elliott

v. McFarland Unified School District (1985) 165

Cal.App.3d 562, 568-70; Civil Service Commission v.

Superior Court (1984) 163 Cal.App.3d 70, 79-81; Dill

v. Superior Court (1984) 158 Cal.App.3d 301, 304-305; Woods

v. Superior Court (1983) 149 Cal.App.3d 931, 934-35.)

None of these cases are in point. There is no

evidence whatsoever that Yanny represents any former

client with an interest adversed to those of

Scientology. This rule therefore has no application

here. The evidence is without contradiction, Yanny

determined after examination and consideration not to

represent any prospective client in a suit against

Scientology. Nor is there any evidence of any threat to

represent anyone in an unspecified future litigation

against Scientology.

12.

III

The rule against disclosure of confidential

information extends beyond representing a client in an

action against a former client. "He may not do anything

which will injuriously affect his former client in any

manner . . . nor may he at any time use against his former

clients knowledge of information acquired by virtue of the

previous relationship." (Wutchumna Water Co. v. Bailey,

supra, 216 Cal. 564, 573-574; Grove v. Grove Valve &

Regulator Co. (1963) 213 Cal.App.2d 646, 650-651; Marriage

of Zimmerman, supra 16 Cal.App.4th 556, 562 and cases

cited therein.)

No evidence was presented to the trial court to

suggest that Yanny was revealing "secrets learned in

representing Scientology" to anyone. The record is bare of

facts to support application of the broader rules cited

above. Scientology recognizes its difficult factual

problem, admitting:

"In this case, an entirely different--and
unique -- circumstance was presented. Yanny
had not made an appearance as counsel of
record in any of the actions in which he was
aiding adverse litigants. Instead, all of
his efforts were made behind the scenes,
hidden from the Churches. This placed the
Churches in an extremely difficult and
unenviable position. Obtaining Yanny's

 

13.

disqualification in each of a series of cases
while he was disclaiming any role, would have
been virtually impossible. First, it is
unclear whether a court would have
jurisdiction to disqualify an attorney who
has made no appearance and denies playing any
role in the litigation. Second, proof of
Yanny's involvement on a case-by-case basis
would, practically speaking, have been
impossible. Disqualification orders,
moreover, would have been largely useless in
any case since by the time the Churches
discovered his involvement in a case and
moved to disqualify the damage would already
have been done. [¶] The Churches' only hope
for obtaining effective relief was thus to
seek general injunctive relief ordering a
halt to his improper conduct precisely what
the Churches did here."

In Scientology's attempt to get evidence of

Yanny's disclosure of secrets, Scientology relied upon

witnesses Dorothy Cota and Thomas Vallier. Cota reported

to Scientology attorneys her attendance of meetings where

Scientology claims "secrets" were disclosed. An

examination of her testimony shows no support for

Scientology's factual contention. The trial court found

her testimony "highly impeached" and "lacked credibility."

The second witness offering testimony to "secrets"

disclosed was Thomas Vallier. The trial court found

Vallier's testimony "not credible, not supported by other

evidence."

14.

A former client's claim of attorney disloyalty,

absent any proof of disclosure of confidences, is not

actionable. Scientology does not cite a single case to

support its legal factual position. Scientology's

reliance on disqualification cases do not give life to

their cause of action here. As stated in a leading

national treatise on attorney malpractice, 1 Mallen &

Mith, Legal Malpractice (3d Ed.) at page 804:

"There must be an actual fiduciary breach
which caused real damages. Thus, the
'substantial relationship' between subject
matters of representation must be reality and
involve actual adversity. A cause of action
is not established by showing that the
attorney had access to confidential
information or that the representation was
adverse. The former client must establish
not only that the attorney possessed and
misused the client's confidences but also
that the fiduciary breach was a proximate
cause of injury. (See Stockton Theaters Inc.
v. Palermo (1953) 121 Cal.App.2d 616.)
(Emphasis added.)"

Scientology was required to prove its claim

factually before either injunction or damage relief could

be awarded. In these critical requirements Scientology

has abjectly failed.

15.

IV

The trial court held it "lacks jurisdiction" to

limit the practice of law other than on a case by case

basis. The trial judge stated:

"Although the evidence established no breach
by defendants the court further declines to
issue an injunction against Yanny and Wynne
(California Lawyers) because the Supreme
Court of California is the only State Court
which can regulate the general practice of
law and is the only body which can discipline
or disbar attorneys (Jacobs v. State Bar
(1977) 20 Cal.3d 191, Business and
Professions Code 6100). It belabors the
obvious to state that this court cannot
regulate the practice of law in any federal
court.

"No case previously cited by plaintiffs
supports the position that this court can
prospectively limit the ability of two
attorneys in the instant action to practice
law."

Scientology has yet to tender such a case. The

judge's decision is in complete conformity with binding

California authorities. It could not enjoin Yanny and

associates from the practice of law.

In re Complex Asbestos Litigation, supra, 232

Cal.App.3d 572, 600-601, the appeal court set forth the

"jurisdiction limits" on the power to disqualify counsel

stating at pp. 600-601:

16.

"The power to disqualify an attorney, as we
stated above, derives from the court's
inherent power to control the conduct of
persons 'in any manner connected with a
judicial proceeding before it in every
matter pertaining thereto.' (Code Civ.
Proc., § 128, subd. (a)(5); [citation].)
This does not mean that a superior court has
any inherent or statutory power to control
the conduct of persons in judicial
proceedings pending before a different
superior court. One court may not interfere
with the process of another court of equal
jurisdiction in a case properly before the
latter. [Citations.]"

The trial court's negation of any right or

authority to disqualify counsel as to and future

representation was correct law yet the rule has no

application here. No representation of an adverse party

has been shown or threatened.

V

Scientology next contends the misconduct of Yanny

and his counsel throughout the trial was deliberate and

pervasive and so prejudicial as to compel reversal. When

such a charge is made we examine the contention in the

light of these basic principles. In Dominguez v. Pantalone

(1989) 212 Cal.App.3d 201, 210-211, this court quoted the

here relevant statements of the California Supreme Court in

Tingley v. Times Mirror (1907) 151 Cal. 1, 23:

17.

"As the [California] Supreme Court noted
nearly eighty years ago '[i]t rarely occurs
in any case which is of moment and sharply
contested that counsel on both sides in their
zeal and partisan devotion to their clients
do not indulge in arguments, remarks,
insinuations, or suggestions which find
neither support in, nor are referable or
applicable to the testimony, or warranted by
any fair theory upon which the case is being
presented. If such impropriety of counsel
always afforded ground for a new trial, there
would be little prospects of any litigation
becoming finally determined. It is only when
the conduct of counsel consists of a willful
or persistent effort to place before a jury
clearly incompetent evidence, or the
statement or remarks of counsel are of such a
character as to manifest a design on his part
to awake the resentment of the jury, to
excite their prejudices or passion against
the opposite party, or to enlist their
sympathies in favor of his client or against
the causes of his adversary, and the
instructions of the court to the jury to
disregard such offered evidence or
objectionable remarks of course could not
serve to remove the effect or cure the evil,
that prejudicial error is committed. It is
only extreme cases that the court, when
acting promptly and speaking clearly and
directly on the subject, cannot, by
instructing the jury to disregard such
matters, correct the impropriety of the act
of counsel and remove any effect his conduct
or remarks would otherwise have. (Tingley v.
Times Mirror (1907) 151 Cal. 1, 23.)'"

In Menasco v. Snyder (1984) 157 Cal.App.3d 729,

732 the appellate court said:

18.

"In assessing that prejudice, each case
ultimately must rest upon this court's view
of the overall record, taking into account
such factors, inter alia, as the nature and
seriousness of the remarks and misconduct,
the general atmosphere, including the judge's
control of the trial, the likelihood of
prejudicing the jury, and the efficacy of
objection or admonition under all the
circumstances. (See also Simmons v. Southern
Pac. Transportation Co. (1976) 62 Cal.App.3d
341, 351.)"

Finally, and applicable to the facts here, the

Menasco court stated at page 733:

"A claim of misconduct is entitled to no
consideration on appeal unless the record
shows a timely and proper objection and a
request that the jury be admonished."

Because the effect of misconduct can ordinarily be

removed by an instruction to the jury to disregard it, it

is generally essential in order that an act of misconduct

be subject to review on appeal, that it be called to the

attention of the trial court at the time to give the court

an opportunity to so act if possible as to correct the

error and avoid a mistrial. Only misconduct so prejudicial

that as admonishment would be ineffective excuses the

failure to request such admonishment. (Whitfield v. Roth,

10 Cal.3d 874, 892.) (Emphasis mine.)

19.

VI.

The list of purported misconduct is attached as an

additional "appendix" to Scientology's Opening Brief. In

thirty-seven of those listed instances of purported

misconduct, Scientology made no objection at all.⁶

Twenty-two of the Scientology objections listed in the

"appendix" were specifically overruled by the trial

court.⁷ More significantly, twenty-seven of those

instances cited in Scientology's "appendix" took place

during the examination of Yanny, when he was on the stand.

He had been specifically excluded by the trial court from

participating in side bar conferences. Yanny had no way of

knowing the substance of the trial court's decision at

side-bar during his examination and the limits it might

have imposed on his testimony.

⁶ The following is a partial list: Reporters
Transcript: 362-63, 365, 382-83, 589-90, 1123, 1125,
1202, 1223, 1319-20, 1725-26, 1795-96, 1931, 2008-09,
2105-06, 2107-08, 2246-47, 2257, 2484, 2568-69, 2707,
2856, 2861-62, 2929, 2931-32, 2969-70, 273-74, 2976-77,
2981, 2996-97, 3006-07. These examples were taken from
Scientology's "appendix."

⁷ The following is a partial list: Reporters
transcript: 436, 438-39, 591, 924-25, 967-68, 989,
1120-21, 1208, 1235-36, 1313-14, 1777-78, 1779-80,
1924-25, 1984-85, 2011-12, 2107, 2149-50, 2154-55,
2199-2201, 2993. These examples were taken from
Scientology's "appendix" of purported misconduct.

20.

When objections were sustained, during the over

one-and-a-half month jury trial, the trial court followed,

when necessary, with an admonition that sought to clarify

that matters being discussed were allegations, rather than

facts.

VII

A fair and dispassionate reading of the record

does not support Scientology's charge. This was a hard

fought lawsuit. Scientology at long last concedes the

trial was "hotly contested". In this legal "hardball"

Scientology gave a great many more causes to complain than

did Yanny's counsel. The tone and flavor of Scientology

counsel's conduct (Cooley) appears in the opening

statement and continues into his final argument. In his

opening statement Cooley represented he would prove:

"Approximately 40 to 60 percent of the
$2,300,000 represented fraudulent billing [by
Yanny].

"There are basically two parts to this case,
the betraying of client confidences, the
aiding, counseling and assisting of
adversaries. That's one side. And the
other, the fraudulent billing.

"These three entities come before you not to
present any form of ecclesiastical dispute,
but they come before you as clients of a
lawyer. They come before you presenting to

21.

you a claim that their lawyer to whom they
paid $2,300,000 has betrayed them and gouged
them, and they ask you to focus your
attention--

"MR. SAYERS: Your Honor, I'm going to
object to this is argument and I'd ask that
the jury be instructed to disregard these
comments.

"THE COURT: I'll ask the jury to disregard
it."

Cooley continued his not to be factually supported

diatribe:

"The evidence will show that he has become
the field general for the main litigation
involving adversaries of the church, these
three entities. . . ."

Counsel's statements of evidence to be offered

should be presented in good faith. Many of Cooley's

statements were totally unsupported by evidence produced at

trial.

Scientology witnesses gratuitously volunteered

unsupported statements of Yanny's marital infidelities.

"Q. Do you recall what Mr. Yanny said with
respect to Ms. Aznaran's relationship to that
retainer?

"A. He said he owed everything to Vicki
Aznaran, and that if it weren't for
Scientology ethics he would like to sleep
with her.

22.

"MR. SAYERS: Objection. Move to strike.
That's irrelevant and highly prejudicial.

"THE COURT: Overruled. Motion to strike
denied.

[SCIENTOLOGY ATTORNEY]: This is a further
example.

"MR. DRESCHER: Your Honor, I'd object to
Mr. Yanny's gratuitous remark and ask that it
be stricken.

"THE COURT: Overruled. The jury is asked
to disregard any comment made by the lawyer.

"THE WITNESS: I don't think it's proper to
sleep with a law clerk in your office a month
after you've married your wife and she's
working in the office." (Emphasis mine.)

These gratuitous, irrelevant factually unsupported

statements continued into the final argument [by Cooley]

when he said:

"Good morning. [¶] Mr. Van Sickle's final
argument was based, I think, upon a technique
more appropriate to a propaganda ministry
than to a courtroom. His strategy obviously
was to equate things that, in fact, are
irrelevant to each other, and then to lump
the entire story into a great big generality
which he gave his own theological spin by
repeating to you over and over again.

"So what. So What. Big deal. Word games.

"So what that Yanny ripped plaintiffs off
for thousands upon thousands of dollars.
Nobody's perfect.

23.

"So what that neither of the defendants'
only two witnesses, Yanny and Vicki Aznaran,
could get their story straight, even when
they spent the night together before one of
them testified.

"So what that the fictitious documents that
Yanny claims support his position never even
existed.

"So what that Yanny dreamed up a nonexistent
agreement, one-page agreement written by a
dead man which Mr. Van Sickle now wants you
to ignore.

"So what that Yanny claims to have cut the
deal for the $150,000 retainer at a meeting
that never happened in a restaurant Vicki
Aznaran never visited with people who were
never there.

"The so what is that a witness, and
particularly a lawyer, who is supposed to
honor and serve the judicial process, has a
sacred duty not to give false testimony and
not to procure false testimony from that
witness stand, and to treat his clients with
honesty and fairness and not to take
advantage of their trust in him by defrauding
them.

"As part of his effort to reduce Yanny's
enormous wrongdoing to a so what or big deal
status, Mr. Van Sickle characterizes specific
items that have been proven as part of the
overall fraud, which even by his calculations
come to $50,000, that's pocket change, and
nickels and dimes not worthy of your
consideration.

"Mr. Van Sickle, thus announces a new rule;
the law according to Yanny. It's okay to
steal $50,000 because it's not really a lot
of money to these plaintiffs. I say to you,
it is a lot of money. Furthermore, it's solid

24.

evidence of the overall fraud that Yanny had
in his heart and it defines what Yanny is,
and serves as one of the many building blocks
on which we ask you to base the overall case
of fraud, treachery and deceit.

"According to Mr. Van Sickle, all of the
witnesses against Yanny are blind and cannot
see the elephant. Jacobs is blind, Grabowski
is blind, Todd Serota's blind, Warren
McShane, Paul Schroer, Doreen Hackett, Eva
Raber, Tom Vallier, Marty Rathbun and Dorothy
Peti, all blind. None of them can see the
elephants, according to Mr. Van Sickle. They
feel the tail and think it's a rope and want
to hang Yanny with it.

"I would suggest to you that there are so
many people who have testified here to
fundamentally the same thing that they have
correctly identified not only the tail but
the trunk, tusk, head, ears, body, and that
the elephant has taken shape, and has
trampled Yanny's thick of lies."

Neither the judge nor the jury accepted these

statements as fact as demonstrated by the jury verdict in

favor of Yanny and the court's decision denying injunctive

relief to Scientology.

In many instances, Scientology induced the

commission of the conduct now claimed to be Yanny's

misconduct. In such case Scientology is estopped from

asserting any induced, alleged, misconduct as a ground for

reversal. (9 B.E. Witkin, California Procedure: Appeal §

301 et seq. [3d Ed., 1985, Supp. 1992].) One of the major

25.

issues of purported misconduct cited by Scientology, was

Yanny's reference to the Wollersheim verdict. This verdict

was in evidence, having been introduced by Scientology

itself as Exhibit 61. This is invited error or waiver.

(Gunch v. Fieg (1913) 164 Cal. 429, 3)

Finally, regardless of whether the trial court

overruled or sustained the objections, over seventy

instances of purported misconduct cited by Scientology are

based on objections where there is no certification of the

grounds for objecting whether as to the form or the

substance of the question. These various examples cited

by Scientology, do not meet the standard to constitute

lawyer misconduct. There is no basis for reversal shown in

this record.

VIII

Scientology next contends the trial court's

failure to instruct the jury as to willful suppression of

evidence is reversible error. Two issues are raised. Was

the refusal erroneous, and if error, prejudicial?

Scientology has the burden of proof on both issues. (Null

v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.)

The court in place of the requested instruction gave a

broader alternate instruction as follows:

26.

"If weaker or less satisfactory evidence is
offered by a party when it was within his
power to produce stronger and more
satisfactory evidence, the evidence offered
should be viewed with distrust.

"In determining what inferences to draw from
the evidence, you may consider, among other
things, a party's failure to explain or to
deny such evidence."

A litigant is entitled to instructions on every

theory advanced by him which finds support in the evidence.

(Phillips v. G. L. Truman Excavation Co. (1961) 55 cal.2d

801, 806; Daniels v. City of County of San Francisco (1953)

40 Cal.2d 614, 623.) But the precise instruction requested

is not required in every instance. The instruction actually

given had not only covered Scientology's theory of willful

suppression but also covered other theories favorable to

Scientology. Scientology's theory was adequately covered by

the instruction given. (See Williams v. Carl Karcher

Enterprises Inc. (1986) 182 Cal.App.3d 479, 487.) If it be

assumed that the broader instruction given was not

sufficient yet no prejudice is shown. The evidence was in

conflict as to what was contained in the non produced

documents. The jury chose to believe Yanny's witnesses.

There was no evidence of Yanny's willful suppression of any

documents.

27.

IX

Scientology contends that the jury verdict on the

cross-complaint is not supported by substantial evidence.

Scientology's quarrel is with the substantial evidence rule:

"It is fundamental that the trial court's
[or jury's] factual findings will be reversed
on appeal only when they are not supported by
substantial evidence. (In re Marriage of Mix
(1975) 14 Cal.3d 604, 614; Stevens v. Parke,
Davis & Co (1975) 9 Cal.3d 51, 64.) In
applying the substantial evidence test, the
court views the evidence in the light most
favorable to respondent (Nestle v. City of
Santa Monica (1972) 6 Cal.3d 920), accepting
as true respondent's evidence resolving all
conflicts in respondent's favor, and drawing
such favorable inferences as may be drawn
from the evidence. (Hasson v. Ford Motor Co.
(1977) 19 Cal.3d 530, 544.)"

We may quickly dispose of Scientology's claims

that the evidence was insufficient to support the

judgment. We do not reweigh the evidence on appeal, but

rather determine after resolving all conflicts favorable to

the prevailing party whether there is substantial evidence.

We find here there is substantial believable

evidence of Yanny's contract to perform legal services for

Scientology and there is evidence of his performance of the

contract and Scientology's breach. Scientology refused to

pay for services rendered to Yanny's damages. Yanny was

28.

hired by RTC president Vicki Aznaras. He was retained at a

non-refundable $150,000 retainer. The contract was

admitted. The Scientology's witness McShane admits the

final bill submitted by Yanny was unpaid. The services

rendered by Yanny were complex and extensive in nature. It

was only after Yanny expressed his disagreement with certain

Scientology practices and policies did Scientology question

any bills submitted. There is more than substantial

evidence to support the jury verdict and the trial court's

denial of injunctive relief. Each must be affirmed.

X

DISPOSITION IN RE SANCTIONS

This is a case that warrants the imposition of

sanctions upon Scientology under Code of Civil Procedure

section 907 as well as upon Scientology's attorney William

T. Drescher and Eric M. Lieberman. Respondents Mary Grieco

and Richard Wynne have been sued without cause, put to the

expense of a three month trial and to this lengthy appeal.

On this appeal Scientology does not even mention Mary

Grieco. Richard Wynne is mentioned only once in a footnote

in an unrelated matter.

After 41 days of trial--three months out of the

life of Yanny, Grieco, Wynne and McRae, Scientology

29.

produced an enormous amount of time consuming legal

froth--no substance, no lawful basis, for any relief.

Scientology witnesses swore under penalty of perjury to

"facts" that formed the basis of the issuance of the

temporary restraining order here in the injunction. When

tested in open court these witnesses were found not worthy

of belief. There is a strong suspicion that one of these

witnesses, Dorothy Cole, was a plant, a spy placed by

Scientology in Yanny's employ. The declarations under oath

by Yanny, Grieco and Wynne support the conclusion that a

series of illegal pressures were sought to be placed on

these parties; that an attempt at subordination of perjury

was made. A review of this record as a whole leads to this

conclusion. This appeal court and the trial court below

was used as a means in Scientology's pursuit of the "fair

game," policy of punishing those who leave Scientology

without Scientology's approval. This appears to be a

continuation of the fair games procedure of Scientology to

discredit and to destroy and ruin an adversary by whatever

means available. (See Church of Scientology v. Armstrong

(1991) 232 Cal.App.3d 1060, 1067; Wollershein v. Church of

Scientology of Calif., supra, 212 Cal.App.3d 872, 888,

891-895; Allard v. Church of Scientology of Calif. (1976)

30.

58 Cal.App.3d 439, 444.)

The prime issue in this trial was credibility.

Scientology witnesses totally failed to establish the

requisite facts necessary to judgments in their favor. The

evidence of the "fair game policy" and its application was

relevant.

Scientology failed to adequately designate the

record on appeal (Cal. Rules of Court, § 5.1). Scientology

does not give this court the necessary record in order to

determine their contentions of error in the jury verdict.

This neglect prevents this court to reach the merits of the

issues raised.

Neither Scientology nor its lawyers offer any

justification for the prosecution of this appeal against

Mary A. Greco or Richard Wynne. There is no legal or

factual basis to find any error in the judgments in favor

of these individuals.

Scientology at long last concedes (as is apparent

from the face of the record) that the trial was "hotly

contested." The record and the jury verdict and court

decision reflect a rejection of the unsupported slanderous

statements and legal deficiencies of Scientology's

positions taken.

31.

Scientology and counsel have failed to respond to

or refute misleading arguments made on this appeal. (See

fns. 7 and 8, supra.) The same issues and arguments

presented on this appeal were made--unsuccessfully--before

Division Three of this court in case No. B068216 (see fn.

3, supra).

Scientology and counsel have urged on this

appellate court law having no relevancy whatsoever. This

case does not involve a lawyer representation of a client

against a former client after termination of that attorney

client relationship. Further, the law relevant to a

"breach of loyalty" absent facts to show a disclosure of

confidence has no application whatsoever. Three times

Scientology and its lawyers have pushed these inapposite

legal arguments without success. The high point in

evidence offered was rejected by the trial court as not

worthy of belief. This was an appeal on unproved--rejected

as false--facts. This appeal and its delays and total lack

of merit must be viewed in conjunction with the other

groundless similar lawsuit pursued against Yanny. Such

evidence leads to the conclusion that this proceeding was a

device for destroying Yanny and any lawyers who chose to

work with him. This appeal is the "Fair Game" of

Scientology infamy at work.

32.

This appeal has been delayed unreasonably due to

Scientology's failure to perform requisite acts to perfect

an appeal. There were violations of numerous rules of

court. The notice of appeal was filed April 23, 1991 and

designation of the reporters record made on May 9, 1991.

It was not until September of 1992 that Scientology paid

the estimated costs of completing the reporters

transcript. Failure to do so for over one year caused this

court to make its own motion to dismiss. Numerous other

delaying tactics appear in this record.

XI

THE LAW IN RE SANCTIONS ON APPEAL

Code of Civil Procedure section 907 provides:

"When it appears to the reviewing court that
the appeal was frivolous or taken solely for
delay, it may add to the costs on appeal such
damages as may be just." (See also Rule
26(a).)

An appeal taken for an improper motive represents

a time-consuming and disruptive use of the judicial

process. Similarly, an appeal taken despite the fact that

no reasonable attorney could have thought it meritorious

ties up judicial resources and diverts attention from the

burdensome volume of work at the appellate courts. An

33.

appeal should be held to be frivolous only when, as here,

it is prosecuted for an improper motive--to harass the

respondent or delay the effect of an adverse judgment--or

where it indisputably has no merit--when any reasonable

attorney would agree that the appeal is totally and

completely without merit. (In re Marriage of Flaherty

(1982) 31 Cal.3d 637, 650.)

Pursuant to rule 26(a), this court may impose

upon offending attorneys or parties such penalties "as the

circumstances of the case and the discouragement of like

conduct in the future may require." (Italics added.)

Preliminarily, I note that because of due process

considerations, "Penalties for prosecuting frivolous

appeals should not be imposed without giving fair warning,

affording the attorney an opportunity to respond to the

charge, and holding a hearing. Further, when imposing

sanctions, the court should provide the attorney with a

written statement of the reasons for the penalty." (In re

Marriage of Flaherty, supra, 31 Cal.3d at p. 654.) These

due process requirements have been more than met here.

It is pointed out in Bank of California v.

Varikin, 216 Cal.App.3d 1630, 1636, respondents are:

34.

". . . [N]ot the only parties damaged when
an appellant pursues a frivolous claim.
Other appellate parties, many of whom wait
years for a resolution of bona fide disputes,
are prejudiced by the useless diversion of
this court's attention. (Martineau,
Frivolous Appeals: The Uncertain Federal
Response (1984) Duke L.J. 845, 848 & fn.
18.) In the same vein, the appellate system
and the taxpayers of this state are damaged
by what amounts to a waste of this court's
time and resources. (See generally Bennett
v. Unger (1969) 272 Cal.App.2d 202, 211; cf.
Cann, Frivolous Lawsuits--The Lawyer's Duty
to Say 'No' (1981) 52 U.Colo. L.Rev. 367,
368-369 [discussing the social cost of
frivolous appeals].) Accordingly, an
appropriate measure of sanctions should also
compensate the government for its expense in
processing, reviewing and deciding a
frivolous appeal. (Bennett v. Unger, supra,
272 Cal.App.2d at p. 211; Eisenberg,
[Sanctions on Appeal: A Survey and a
Proposal for Computation Guidelines (1985)]
20 U.S.F. L.Rev. [13]; Young v. Rosanthal,
212 Cal.App.3d 96, 133.)"

In Young v. Rosenthal, supra, at page 134, the

court held:

"In determining the appropriate relief, the
underlying policy of Code of Civil Procedure
section 907 should control. 'The object of
imposing a penalty for frivolous appeal is
twofold--to discourage the same, as well as
to compensate to some extent for the loss
which results from the delay. . . . [¶] In
determining the amount . . . in this case for
a frivolous appeal we should consider the
facts with relation thereto and the effect of
the delay.' (Huber v. Shedoudy (1919) 180
Cal. 311, 316-317; see also Kim v. Walker
(1989) 208 Cal.3d 375, 384-385.)"

35.

"In this case, such sanctions are most
properly measured by the reasonable
attorneys' fees incurred by CEH in responding
to Rosenthal's appeals."

Review of the record and briefs filed including

specific declarations as to time spent and applicable

hourly rates, I conclude the amount of attorneys fees

reasonably incurred in defense of this appeal by Yanny,

Greco and Wynne, is the sum of $63,387.50 plus costs

involved of $14,441.60 or a total of $77,829.10.

XII

SANCTIONS PAYABLE TO THE COURT

The handling of this case has imposed a lengthy and

arduous burden upon the court. Numerous briefs, procedural

motions precedes the oral argument in this case. I place

the fault for imposing this burden on the legal system upon

Scientology and counsel. This was a time-consuming, costly

and frivolous appeal. The taxpayers of the state have been

harmed by a wasteful diversion of their appellate court

limited resources. The appropriate measure of sanctions

should compensate the State of California for its

processing, reviewing and deciding this frivolous appeal.

This court is aware of the normal average cost of handling

36.

an appeal in this Second District of the Court of Appeal

(see Young v. Rosenthal, supra, 212 Cal.App.3d at pp.

136-137), but I am also painfully aware that that is

not an average case.

I conclude the cost incurred by the State of

California due to this frivolous appeal is the sum of

$25,000. Appellant Religious Technology Center, a

California non-profit religious corporation; Church of

Scientology International, a California non-profit religious

corporation; and Church of Scientology of California, A

California non-profit religious corporation and their

attorneys William T. Drescher and Eric M. Lieberman are

jointly and severally liable to Joseph A. Yanny and Mary A.

Greco and Richard Wynne for the total sum of $77,829.10.

Appellants and named attorneys should be directed

to pay the further sum, as a joint and several obligation,

of $25,000 to the clerk of the court as a further sanction.

The judgment is affirmed in all respects. Costs on

appeal are awarded to respondents.

NOT TO BE PUBLISHED.

STANIFORTH, J.*

*Assigned by the Chairperson of the Judicial Council.

1.

LILLIE, P.J. and JOHNSON, J., Concurring and Dissenting:

We concur in Parts I - IX of our colleague's

opinion but depart from him on the issue of appellate

sanctions (Parts X - XII). We do not find the issues on

appeal to be so devoid of merit as to qualify as

frivolous under the standard enunciated in In re Marriage

of Flaherty (1982) 31 Cal.3d 637, 650. Nor do we find

sufficient evidence independent of the relative merit of

the issues raised on appeal to conclude the appeal was

"taken solely for delay." (Code Civ. Proc., § 907.)

Accordingly, we are unwilling to impose monetary

sanctions on appeal either in favor of the court or of

respondents.

As a result of our decision on this issue, the

disposition of this case does not include any direction

to appellants or their attorneys to pay respondents the

monetary sanctions on appeal discussed in our colleague's

opinion or to pay monetary sanctions to the State of

California. However, we do deem it appropriate to

require appellants to pay respondents' costs on appeal.

Thus, the disposition of this appeal is as set forth in

the paragraph below.

2.

DISPOSITION

The judgment is affirmed. Costs on appeal are

awarded to respondents.

NOT TO BE PUBLISHED.

LILLIE, P.J.

I concur:

JOHNSON, J.

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