California Anti-SLAPP Project

Sample Memorandum of Points and Authorities
In Support of a Special Motion to Strike


Daniel Leipold
Hagenbaugh & Murphy
701 South Parker Street, Suite 8200
Orange, California 92668
(714) 835-5406

Mark Goldowitz
1611 Telegraph Ave., Suite 1200
Oakland, California 94612
(510) 835-0850

Special Counsel for Defendant Lawrence Wollersheim


Lawrence Wollersheim
P.O. Box 10910
Aspen, Colorado 81612
(303) 650-3336

In Pro Per




           SUPERIOR COURT OF THE STATE OF CALIFORNIA

                    COUNTY OF LOS ANGELES


CHURCH OF SCIENTOLOGY OF      )     No. BC 074815
CALIFORNIA,                   )
                              )     AMENDED MEMORANDUM OF
Plaintiff,                    )     POINTS AND AUTHORITIES IN
                              )     SUPPORT OF DEFENDANT'S
     vs.                      )     SPECIAL MOTION TO STRIKE
                              )
LARRY WOLLERSHEIM,            )     _________________________
                              )
Defendant.                    )     Date: July 2, 1993
                              )     Time: 9:00 a.m.
______________________________)     Dept: 14



                             TABLE OF CONTENTS

TABLE OF AUTHORITIES. .. . . . . . . . . . . . . . . . . . . . . . . .  iv 

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

I.      THIS SPECIAL MOTION TO STRIKE IS AUTHORIZED BY SECTION 425.16. . 1

II.     THIS MOTION SHOULD BE GRANTED BECAUSE PLAINTIFF CAN NOT
        DEMONSTRATE A PROBABILITY THAT IT WILL PREVAIL ON ITS CLAIMS. .  2

        A.     THIS COURT HAS NO JURISDICTION OVER THIS ACTION BECAUSE
               THE MAIN ACTION IS PENDING BEFORE THE CALIFORNIA
               SUPREME COURT. . . . . . . . . . . . . . . . . . . . . .  3

        B.     THIS COURT HAS NO JURISDICTION OVER THIS ACTION BECAUSE
               IT IS MERELY A DISGUISED ATTEMPT TO BRING AN UNTIMELY
               MOTION FOR A NEW TRIAL.. . . . . . . . . . . . . . . . .  4

        C.     THIS ACTION IS BARRED BECAUSE IT IS UNTIMELY AND
               PLAINTIFF HAS NOT EXERCISED DUE DILIGENCE IN RAISING
               THESE CLAIMS.. . .   . . . . . . . . . . . . . . . . . .  5

        D.     PLAINTIFF DOES NOT PLEAD AND CAN NOT SHOW THAT IT HAS A
               MERITORIOUS DEFENSE IN THE MAIN ACTION.. . . . . . . . .  6

        E.     PLAINTIFF'S COMPLAINT IS NOT SUFFICIENT TO SET ASIDE THE
               JUDGMENT BECAUSE IT ALLEGES AT MOST INTRINSIC FRAUD. . .  7

        F.     PLAINTIFF CAN NOT DEMONSTRATE A PROBABILITY THAT IT
               WILL PREVAIL ON ITS CLAIM IN THIS ACTION THAT JUDGE
               SWEARINGER SHOULD HAVE BEEN DISQUALIFIED.. . . . . . . .  7

        G.     PLAINTIFF CAN NOT DEMONSTRATE A PROBABILITY THAT IT CAN
               PROVE KEY FACTS WHICH IT ALLEGES IN ITS COMPLAINT. . . .  8

        H.     THIS ACTION IS BARRED BY COLLATERAL ESTOPPEL BECAUSE
               THE CLAIMS MADE BY PLAINTIFF HERE WERE ALREADY RAISED
               BY PLAINTIFF AND REJECTED BY THE COURTS IN THE MAIN
               ACTION AND IN ANOTHER PROCEEDING . . . . . . . . . . . .  9

        I.     THIS ACTION IS PART OF PLAINTIFF'S LITIGATION STRATEGY TO
               USE THE COURTS TO HARASS ITS OPPONENTS.. . . . . . . . . 10

        J.     THIS ACTION IS PART OF PLAINTIFF'S LITIGATION STRATEGY OF
               ATTACKING JUDGES WHO RULE AGAINST THEM AS BIASED.. . . . 12

        K.     PLAINTIFF HAS UNCLEAN HANDS AND IS NOT ENTITLED TO THE
               EQUITABLE RELIEF SOUGHT. . . . . . . . . . . . . . . . . 13

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14


TABLE OF AUTHORITIES [omitted]

INTRODUCTION.

Plaintiff Church of Scientology of California ("Scientology") filed this action to set aside a $2.5 million judgment which was upheld by the District Court of Appeal, in Wollersheim v. Church of Scientology of California (1989) 212 Cal.App.3d 872, 260 Cal.Rptr. 331, and (1992) 3 Cal.App.4th 1290, 6 Cal.Rptr.2d 532, and which is currently pending before the California Supreme Court. [FN1]

FN1. See discussion in footnote 13 below for a more detailed discussion of the appellate proceedings.
This action was brought almost seven years after the trial verdict and eleven months after the allegedly "new evidence" upon which it is based came to the attention of Scientology's attorneys. It alleges improper conduct by trial judge Ronald Swearinger, but was conveniently filed shortly after Judge Swearinger died, so he can no longer defend himself. The action is untimely, improper, without merit, and filed to further harass defendant. Because it arises from defendant's exercise of his First Amendment right to petition the government (file a lawsuit), this action is subject to a special motion to strike under Code of Civil Procedure section 425.16, [FN2] which should be granted for the reasons set forth below.
FN2. Subsequent section references are to the Code of Civil Procedure, unless otherwise noted.


I. THIS SPECIAL MOTION TO STRIKE IS AUTHORIZED BY SECTION 425.16.

Recognizing the potential chilling effect of lawsuits brought primarily for the purpose of curbing the valid exercise of the constitutional rights of petition or freedom of speech, [FN3] the California Legislature last year added section 425.16 to the Code of Civil Procedure. Effective January 1, 1993, the section specifies that an action arising from a defendant's exercise of the constitutional right to petition the government shall be subject to a motion to strike unless the plaintiff can show a "probability" of success on the merits. [FN4]

FN3. The purpose of the legislation is set forth in its first subection: "The Legislature finds that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The Legislature also finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process." Sec. 425.16(a).

FN4. Section 425.16(b) provides, in pertinent part: "A cause of action arising from any act of that person in furtherance of the person's rigght of petition or free speech in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."

Plaintiff's complaint against defendant falls squarely within section 425.16. The complaint seeks to set aside the judgment in the action entitled Larry Wollersheim v. Church of Scientology of California, Los Angeles Superior Court No. C 332 027 (the "Main Action"). The petition activity which is protected by this new statute includes "any written statement...made before a...judicial proceeding..." (sec. 425.16(e).) This surely includes defendant Wollersheim's filing of a complaint in the Main Action. The complaint in this action arises from the defendant's exercise of his right to petition the government in one of its most fundamental forms, filing a lawsuit. Therefore, defendant brings this timely [FN5] special motion to strike.
FN5. This special motion has been filed within 60 days of service of the complaint, as provided in section 425.16(f). See Plaintiff's proof of service, filed April 12, 1993.


II. THIS MOTION SHOULD BE GRANTED BECAUSE PLAINTIFF CAN NOT DEMONSTRATE A PROBABILITY THAT IT WILL PREVAIL ON ITS CLAIMS.

As demonstrated below, plaintiff cannot meet its burden of establishing a probability [FN6] that it will prevail on the merits of its claims, as required by section 425.16(b). [FN7] Therefore, this special motion to strike should be granted. [FN8]

FN6. "Probable" is synonymous with "likely", and "probability" is synonymous with "likelihood". (Walbrook Insurance v. Liberty Mutual Insurance (1992) 5 Cal.App.4th 1445, 1461, 7 Cal.Rptr.2d 513; see also Black's Law Dictionary (Rev.4th Ed. 1968) p.1364 ["probability" means "likelihood"].) "A 'probable' consequence is one more likely to follow its cause than not..." (Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 533, 245 Cal.Rptr. 78.)

FN7. Unlike a demurrer, where the Court is limited to considering matters appearing on the face of the complaint (or matters of which judicial notice is taken), on a section 425.16 special motion to strike, the Court "shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." Sec. 425.16(b).

FN8. In addition to the defects discussed in the following subsections, the complaint omits a necessary party -- the Superior Court of Los Angeles County, under section 389(a).


A. THIS COURT HAS NO JURISDICTION OVER THIS ACTION BECAUSE THE MAIN ACTION IS PENDING BEFORE THE CALIFORNIA SUPREME COURT.

The special motion to strike should also be granted because the Main Action is pending before the California Supreme Court, and this Court has no jurisdiction to hear this action. Plaintiff has acknowledged that the Main Action is currently pending before the California Supreme Court. (Complaint Para. 4.)

C.C.P. section 916(a) provides in relevant part:

"...the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby..."
Under this provision, a trial court has no power to vacate an appealed judgment while the appeal is pending. (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629, 5 Cal.Rptr.2d 742.) [FN9]
FN9. Even if the complaint alleges extrinsic fraud (see discussion that the complaint alleges intrinsic fraud, in II-E below), the trial court does not have jurisdiction to vacate a judgment: "In effect the appeal removed from the jurisdiction of the Superior Court the subject-matter of the judgment. A motion to vacate for extrinsic fraud is embraced within the subject matter of a judgment appealed from." (Hurst v. Hazel Hurst Foundation for the Blind (1955) 134 Cal.App.2d 686, 689, 286 P.2d 53, 55, cited with approval in Beresh v. Sovereign Life Insurance Company of California (1979) 92 Cal.App.3d 547, 562, 155 Cal.Rptr. 74.)
Furthermore, one department of the Superior Court cannot enjoin or otherwise interfere with the judicial act of another department in the same court. (Elsea v. Saberi, supra, 4 Cal.App.4th at 631.)


B. THIS COURT HAS NO JURISDICTION OVER THIS ACTION BECAUSE IT IS MERELY A DISGUISED ATTEMPT TO BRING AN UNTIMELY MOTION FOR A NEW TRIAL.
The plaintiff's claims here, of judge and jury bias and misconduct, are claims that should have been raised in a motion for new trial in the Main Action. (Sec. 657 (1) & (2).) Such a motion must be filed within 15 days after notice of entry of judgment or 180 days after entry of judgment. (Sec. 659 (2).) The court has no jurisdiction to entergain an untimely motion for new trial. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 151, 178 Cal.Rptr. 642; Tri-County Elevator Co. v. Superior Court (1982) 135 Cal.App.3d 271, 277, 185 Cal.Rptr. 208).

Scientology, however, instead of raising these claims in a timely motion for new trial, has raised them in a separate action, almost seven years after the trial verdict in the Main Action, and has improperly attempted to depose Main Action jurors, [FN10] which is prohibited by law. [FN11] As discussed above, the Court has no jurisdiction to the relief sought here.

FN 10. Plaintiff noticed depositions in this action of Main Action jurors and other court personnel before defendant had even appeared in this action. Depositions of Main Action jurors Andre Anderson and Terri Reuter were originally noticed for May 18, 1993. Depositions of Main Action court clerk Cynthia Buter (misspelled as Butler) and bailiff Antoinette Carrasco were originally noticed for May 28, 1993. (See defendant's Application for Ex Parte Order to Stay All Discovery and the Declaration of Laurie J. Bartilson in Opposition, both filed May 27, 1993, and Exhibit 9 (plaintiff's deposition notices) filed herewith.)

In addition, Scientology attempted to take depositions of Main Action jurors and court personnel in two federal actions. (Amd. O'Reilly Decl., Ex. 1, Para. 10.)

FN11. In Linhart v. Nelson (1976) 18 Cal.3d 641, 644-645, 134 Cal.Rptr. 813, the Court held that in civil cases parties may not subpoena jurors or other witnesses to support a claim of jury misconduct: "To allow a disappointed litigant to call witnesses in support of his motion [for new trial] could effectively allow retrial of his case. ...[P]ermitting jurors or other witnesses to testify for one party would mean that opposing parties -- unaware of the proposed testimony -- would be obligated to subpoena all jurors and other witnesses in preparation for hearing. [Para.] Moreover, permitting counsel for the losing party to interrogate unwilling trial jurors touches the integrity of our venerable jury process. First, once aware that after sitting through a lengthy trial he himself may be placed on trial, only the most courageous prospective juror will not seek excuse from service. Secondly, if jury deliberations are subject to compulsory disclosure, independent thought and debate will surely be stifled."


C. THIS ACTION IS BARRED BECAUSE IT IS UNTIMELY AND PLAINTIFF HAS NOT EXERCISED DUE DILIGENCE IN RAISING THESE CLAIMS.

A party bringing an equitable action such as this to set aside a judgment must "[h]ave acted with due diligence in discovering the facts constituting the basis for relief." (Restatement 2nd, Judgments, sec. 70(2)(a), quoted in 8 Witkin, Cal. Procedure (3d ed. 1985), Attack on Judgment in Trial Court, sec. 204, p. 604.) He must also show diligence in seeking relief after discovery of the facts. (Witkin, supra, sec. 218, p. 622.) Grounds for disqualification of a judge, such as those alleged here, must be "presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification." Section 170.3(c)(1). Plaintiff did not exercise due diligence here, either in discovering the alleged new facts, or in bringing them to the attention of the Court.

The judgment in the Main Action, which plaintiff attacks in this action, was rendered on July 22, 1986. (Complaint para. 1.) In post-trial interviews with the jurors, plaintiff says its attorneys learned that some jurors believed that they were being followed by members of Scientology, and that one juror said that the jury had been told by court personnel that during the trial Judge Swearinger had been the subject of vandalism. (Id. para. 7.) Plaintiff unsuccessfully requested discovery regarding these matters in post-trial motions in the Main Action. (Id. para. 8.) There is no indication in the complaint that plaintiff did anything further regarding this matter until March 1992.

On March 19 and 23, 1992, Scientology says its attorneys conducted interviews with William Horne which led Scientology to believe that Judge Swearinger was biased against Scientology. (Id., paras. 11-13.) Yet plaintiff waited almost a full year, until after Judge Swearinger had died, to file this action.

Thus, plaintiff filed this action almost seven years after the underlying events, and almost eleven months after plaintiff claims to have received the "new evidence". This is not the earliest practicable opportunity or due diligence, and the granting of the relief requested would be seriously prejudicial to defendant Wollersheim, forcing on him a burden to litigate matters now more than seven years old. (See McCreadie v. Arques (1967) 248 Cal.App.2d 39, 47, 56 Cal.Rptr. 188.)

Further, the time has long since expired for the plaintiff to seek relief from the judgment of this Court under section 473. (See Church of Scientology of California v. Armstrong (1991) 232 Cal.App.3d 1060, 1069-70, 283 Cal.Rptr. 917.)


D. PLAINTIFF DOES NOT PLEAD AND CAN NOT SHOW THAT IT HAS A MERITORIOUS DEFENSE IN THE MAIN ACTION.
The relief sought by plaintiff in this action must also be denied because plaintiff does not plead, and can not show, that it has a meritorious defense:
"A valid judgment will not be set aside merely because it was obtained by extrinsic fraud or mistake, in order to give the barren right of an adversary hearing. The plaintiff must plead and prove that he has a meritorious case, i.e., a good claim or defense which, if asserted in a new trial, would be likely to result in a judgment favorable to him."
(8 Witkin, Cal. Procedure, supra, sec. 216, p. 620, quoted in New York Higher Education Assistance Corporation v. Siegel (1979) 91 Cal.App.3d 684, 688-689, 154 Cal.Rptr. 200.)

The complaint in this action does not even allege that plaintiff has a meritorious case which would likely result in a favorable judgment in a new trial. Furthermore, upon weighing the entire trial court record, the First District Court of Appeal unanimously concluded that "there is ample evidence to support the jury's verdict on Wollersheim's claim for intentional infliction of emotional distress." (Wollersheim v. Church of Scientology, supra, 212 Cal.App.3d at 882.) This conclusion has remained undisturbed in the subsequent appellate litigation regarding the punitive damages issue. (See fn.13 below.)

Note! This document is continued in Part Two


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