California Anti-SLAPP Project

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


E. PLAINTIFF'S COMPLAINT IS NOT SUFFICIENT TO SET ASIDE THE JUDGMENT BECAUSE IT ALLEGES AT MOST INTRINSIC FRAUD.
Plaintiff's complaint alleges intrinsic, not extrinsic, fraud. However, this is not grounds for an equitable action to set aside a judgment. As Witkin notes:
"Ordinarily, if the aggrieved party is aware of the proceeding and is not prevented from appearing, any fraud is intrinsic and not a basis for equitable relief..." ... " If the aggrieved party had a reasonable opportunity to appear and litigate his claim or defense, fraud occurring in the course of the proceeding is not a ground for equitable relief. The theory is that these matters will ordinarily be exposed during the trial by diligence of the party and his counsel, and that the occasional unfortunate result of undiscovered perjury or other intrinsic fraud must be endured in the interest of stability of final judgments."
(8 Witkin, Cal Procedure, supra, sec. 207, p. 606; sec. 221, p. 625; Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472-473, 82 Cal.Rptr. 489.)

Here, Scientology was not prevented from appearing and defending in the Main Action by any extrinsic fraud. Any fraud alleged is intrinsic and not grounds for the relief sought.


G. PLAINTIFF CAN NOT DEMONSTRATE A PROBABILITY THAT IT WILL PREVAIL ON ITS CLAIM IN THIS ACTION THAT JUDGE SWEARINGER SHOULD HAVE BEEN DISQUALIFIED.
Plaintiff's theory of this action seems to be that Judge Swearinger was biased against plaintiff and therefore should have been disqualified under sections 170.1 and 170.6. (Complaint para. 6.) However, the facts alleged in the complaint do not state grounds for disqualification under section 170.1. Scientology had no claim against Judge Swearinger under section 170.6 because it had already used its section 170.6 claim to disqualify Judge Lopez in the Main Action. (Amd. O'Reilly Decl., Ex. 1, para. 6.) In any case, any such disqualification claim may only be reviewed by a timely petition for writ of mandate -- not by a subsequent independent action. (Sec. 170.3(d); People v. Hull (1991) 1 Cal.4th 266, 276, 2 Cal.Rptr.2d 526.) This requirement, not met here, prevents the "intolerable windfall" which Scientology seeks here:
"...an 'intolerable windfall' would result if a challenging party were to fail to seek immediate review of an unsuccessful challenge, attempt to obtain a favorable judgment, and if that effort failed, take a 'second bite at the apple' by reasserting the peremptory challenge on appeal."
(Andrisani v. Saugus Colony Limited (1992) 8 Cal.App.4th 517, 526, 10 Cal.Rptr.2d 444.)


G. PLAINTIFF CAN NOT DEMONSTRATE A PROBABILITY THAT IT CAN PROVE KEY FACTS WHICH IT ALLEGES IN ITS COMPLAINT.
The declarations presented by defendant in support of this motion indicate that key "facts" alleged in the complaint did not occur. Andre Anderson, the jury foreperson, who was present at all proceedings in front of the jury and throughout all the jury deliberations in the Main Action, states unequivocally that there was no reference to nor comment, by any juror or any other person in his present, about Judge Swearinger's tires being slashed, his dog dying, or that he was being followed, harassed or bothered by Scientology. Anderson Decl., Ex. 3. Antoinette Carrasco Saldana, one of the court bailiffs who was present during the trial of the Main Action, states unequivocally that during the trial she was not aware of any unfavorable beliefs or biases held by Judge Swearinger against Scientology, that Judge Swearinger never mentioned any strange occurrences for which the Judge suspected Scientology was or might be responsible, or that the Judge's tires were slashed; and that they have no knowledge of any statements regarding any of these matters to any member of the jury during the trial. (Saldana Decl., Ex. 5 .) After the verdict, Wollersheim's counsel met with all the jurors (except one alternate), had extensive discussions of the jury deliberations process, and there was no mention of any of these matters. (Amd. O'Reilly Decl., Ex. 1, para. 9.)

In contrast, the complaint (at paras. 7, 9, 11-14, 17-19) cites only hearsay, and sometimes double or triple hearsay, in support of its claims that Judge Swearinger was biased against Scientology or that the somehow infected the jury.


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.
In the course of the Main Action, Scientology launched unsuccessful attacks on Judge Ronald Swearinger, accusing him of bias and prejudice, particularly after the Judge ruled against Scientology on an important point. This included filing an action in approximately March of 1986, Church of Scientology v. Superior Court, USDC-CDCal, CV 86-1362 ER, against Judge Swearinger and the Los Angeles Superior Court, which was dismissed by Judge Edward Rafeedie. [FN12] It also included a formal motion in the Main Action to disqualify Judge Swearinger in early May 1986, which was denied. (Amd. O'Reilly Decl., Ex. 1, para. 8b.)
FN12. Defendant requests that the Court take judicial notice of the judicial proceedings and decisions of other courts referred to here and elsewhere in this memorandum, pursuant to Evidence Code sections 451(a), 452(a), (c), (d), & (h), & 453. Copies of federal court decisions cited herein are included with the exhibits filed herewith.
In its appeal of the trial court verdict, Scientology, in additional to its constitutional claims, raised "a broad spectrum of issues" which the Court of Appeal concluded had no merit. (Wollersheim v. Church of Scientology (1989) 212 Cal.App.3d 872, 880-881, 260 Cal.Rptr. 331, affirmed on these matters (1992) 3 Cal.App.4th 1290, 6 Cal.Rptr.2d 532 fn.1.) [FN13]

FN13. As the complaint notes (para. 4), the U. S. Supreme Court vacated judgment in 1991, the Court of Appeal again entered judgment in 1992, and the California Supreme Court granted Scientology's petition for review in July 1992, holding the case pending decision by the U. S. Supreme Court in TXO Production Corp. v. Alliance Resources Corp. and by the California Supreme Court in Gourley v. State Farm Mutual Automobile Ins. Co. and MGW, Inc. v. Fredericks Development Corp. The July 1992 Court of Appeal decision, responding to the remand from the U. S. Supreme Court, addressed only issues regarding punitive damages and reaffirmed its previous decision as to all other matters. Wollersheim v. Church of Scientology of California (1992) 3 Cal.App.4th 1290, 6 Cal.Rptr. 2d 532, 534 fn.1. The cases the California Supreme Court is holding Wollersheim pending decision in all deal with punitive damages issues. See MGW, supra (7/9/92) 10 Cal.Rptr.2d 85, 832 P.2d 586; Gourley, supra (1991) 53 Cal.3d 121, 130, 3 Cal.Rptr.2d 666, granted 7/9/92; discussion re TXO, supra, in Daily Journal, US Supreme Court Pending Cases (5/27/93) 32-33. Thus, the courts have upheld the Wollersheim verdict as to all challenges except for the punitive damages issue.
Therefore, the claim by Scientology in this action that Judge Swearinger was biased against Scientology is barred by the doctrine of collateral estoppel, which prevents plaintiff from re-litigating issues which were or could have been raised. (Clemente v. State (1985) 40 Cal.3d 202, 222, 219 Cal.Rptr. 445.)


I. THIS ACTION IS PART OF PLAINTIFF'S LITIGATION STRATEGY TO USE THE COURTS TO HARASS ITS OPPONENTS.
Scientology embraces the use of litigation to harass its opponents. Its founder, L. Ron Hubbard, has described this practice as follows:
The purpose of the suit is to harass and discourage rather than to win. [Para.] The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway...will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly. [FN14]


FN14. From L. Ron Hubbard, The Technical Bulletins of Dianetics and Scientology, Volume II, p. 157. A copy of the relevant portion of this document is attached as Exhibit A to, and is authenticated by, Armstrong Decl., Ex. 6, para. 5.

Top Scientology official Jane Kember, in an internal Scientology document, explained that Scientology legal strategy in the U.S. is to use litigation as a financial club: "The button used in effecting settlement is purely financial. In other words, it is more costly to continue the legal action than to settle in some fashion. ... [Para.] Therefore, it is imperative that legal US Dev-T his opponents and their lawyers with correspondence (a lawyer's letter costs approx $50), phone calls (time costs), interrogatories, depositions and whatever else legal can mock up. [Para.] One of the bright spots of US legal is that even if you lose you don't pay your opponent for his lawyers fees." A copy of the document containing this statement is attached as Exhibit B to, and is authenticated by, Armstrong Decl., Ex. 6, para. 6. The phrase "Dev-T" is a term which Scientology uses to mean to cause someone to do unnecessary work. Id.

Vicki Aznaran, who was one of the highest worldwide officials of Scientology, states in her declaration:
Hubbard writings encourage Scientologists to pursue litigation purely for harassment without regard to the merits of a claim to cause enemies to fold. ... [Para.] It is the stated policy and practice of Scientology to use the legal system to abuse and harass its enemies. This crude, fundamental directive of Scientology is no secret. The policy is to do anything and everything possible to harass the opposing litigant without regard to whether any particular motion or maneuver is appropriate or warranted by the facts or applicable law. That policy was followed in every legal case I was involved with or learned about while a member of the Sea Organization. The management of Scientology consistently expressed and demonstrated a complete disdain for the court system, viewing it as nothing more than a method to harass enemies.
Aznaran Decl., Ex. 7, 4:3-5, 5:3-14; see also Armstrong Decl., Ex. 6, paras. 4, 8.

Scientology's use of litigation to harass opponents [FN15] is essentially an application of its "Fair Game" doctrine. [FN16] Under this doctrine, enemies of Scientology can be "deprived of property or injured by any means by any Scientologist" or "tricked, sued or lied to or destroyed". [FN17]

FN15. In Church of Scientology of California v. Cazares (5 Cir. 1981) 638 F.2d 1272, 1290, the court ruled that the civil rights action filed by Scientology against the Mayor of Clearwater, Florida, "was frivolous, unreasonable and groundless. In Church of Scientology of California v. McLean (5 Cir. 1980) 615 F.2d 691, 693, Scientology moved to disqualify one of defendants' attorneys in a slander suit it had filed; the court found Scientology's position "not only without merit but frivolous." In Church of Scientology of California v. Siegelman (USDC, SDNY 1979) 475 F.Supp. 950, 951, the court referred to "the litigious Church of Scientology".

FN16. The "Fair Game" doctrine is quoted and/or discussed in Church of Scientology of California v. Armstrong (1991) 232 Cal.App.3d 1060, 1067, 283 Cal.Rptr. 917; Wollersheim v. Church of Scientology of California (1989) 212 Cal.App.3d 872, 879-880; and Allard v. Church of Scientology of California (1976) 58 Cal.App.3d 439, 443 fn.1, 447 fn.4, 129 Cal.Rptr. 797; see also Armstrong Decl., Ex. 6, paras. 4, 7-8; Aznaran Decl., Ex. 7, 2:10-5:14.

FN17. Judge Paul G. Breckenridge, Jr., made the following observations about Scientology in Church of Scientology of California v. Armstrong, Los Angeles Superior Court, No. C420153, which decision was affirmed in Church of Scientology of California v. Armstrong (1991) 232 Cal.App.3d 1060, 1074, 283 Cal.Rptr. 917: "In 1970 a police agency of the French Government conducted an investigation into Scientology and concluded, 'this sect, under the pretext of "freeing humans" is nothing in reality but a vast enterprise to extract the maximum amount of money from its adepts by (use of) pseudo-scientific theories, by (use of) "auditions" and "stage settings" (lit. to create a theatrical scene) pushed to extremes (a machine to detect lies, its own particular phraseology...), to estrange adepts from their families and to exercise a kind of blackmail against persons who do not wish to continue with this sect.' From the evidence presented to this court in 1984, at the very least, similar conclusions can be drawn. In addition to violating and abusing its own members civil rights, the organization over the years with its 'Fair Game' doctrine has harassed and abused those persons not in the Church whom it perceives as enemies. The organization clearly is schizophrenic and paranoid..." Memorandum of Intended Decision, June 20, 1984, p. 8, a copy of which is attached as Exhibit C to, and authenticated in paragraph 10 of, Armstrong Decl., Ex. 6. On July 20, 1984, the court issued an order deeming its memorandum of intended decision as its statement of decision.

Defendant Wollersheim has himself been a victim of the Scientology litigation harassment strategy, of which this action is a part. This includes being subjected to a six-month trial in the Main Action, countless meritless motions by Scientology, and having to oppose at least six (ultimately unsuccessful) emergency writ petitions to the Court of Appeal (Amd. O'Reilly Decl., Ex. 1, para. 12.) [FN18]
FN18. In addition, from the beginning of the pre-trial proceedings until the end of the case, Wollersheim's counsel had to spend approximately $450,000 on security to protect Wollersheim, his counsel, and his witnesses from threatened violence from a Scientology mob which subjected Wollersheim and his counsel to constant harassment and abuse. (Amd. O'Reilly Decl., Ex. 1, para. 11; Wollersheim Decl., Ex. 2.)
While the Main Action was pending, Scientology filed a federal RICO suit against Wollersheim, as well as his attorneys and his two primary expert witnesses in the Main Action; this case was finally dismissed last year. (Religious Technology Center v. Wollersheim (9 Cir. 1986) 796 F.2d 1076, cert. den. 479 US 1103; dismissed (1992) 971 F.2d 364.) This was in addition to the federal action filed by Scientology to disqualify Judge Swearinger (Amd. O'Reilly Decl., Ex. 1, para. 8a). In both federal actions and in this action, Scientology improperly attempted to depose jurors and court personnel from the Main Action (see fn.10).

In addition, Scientology has consciously attempted to deprive Wollersheim of counsel and key witnesses and evidence in the Main Action, and has subjected him to its Fair Game policy. (Wollersheim Decl., Ex. 2.)


J. THIS ACTION IS PART OF PLAINTIFF'S LITIGATION STRATEGY OF ATTACKING JUDGES WHO RULE AGAINST THEM AS BIASED.
Scientology's litigation strategy includes attacking judges who rule against it, attempting to disqualify them based on claims of bias and prejudice. (Armstrong Decl., Ex. 6, para. 9.) [FN19] Scientology pursued this strategy with a vengeance in the Main Action and derivative cases, disqualifying Judge Lopez under section 170.6 and attempting to disqualify Judges Swearinger and Margolis and the entire Los Angeles County Superior Court for bias in the Main Action, and filing an unsuccessful separate federal action, Church of Scientology v. Superior Court, USDC-C.D.Cal., CV 86-1362, which sought to disqualify Judge Swearinger in the Main Action because of alleged bias, as well as attempting to disqualify the entire U. S. District Court for the Central District of California because of alleged bias, in the federal "RICO" action filed against Wollersheim and his counsel and expert witnesses, RTC v. Wollersheim. (Amd. O'Reilly Decl., Ex. 1, paras. 4, 5, 6 & 8.) This new lawsuit is merely the continuation of the same strategy with another vehicle.

FN19. See also Church of Scientology of California v. Cooper (DC Cal. 1980) 495 F.Supp. 455, 461, where the court ruled that plaintiff's recusal motion was based on false allegations but nonetheless granted the recusal motion; United States v. Heldt (DC Cir. 1981) 668 F.2d 1238, 1269-74, cert.den. 102 S.Ct. 1971, a criminal case against top Scientology officials, where the Court of Appeals rejected the defendants' arguments that trial Judge Richey should have been disqualified and called them "somewhat disingenuous".


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

This lawsuit seeks equitable relief, which should be denied because plaintiff has unclean hands.
"Under the 'unclean hands' doctrine, a party is barred from relief if he has engaged in any unconscientious conduct directly related to the transaction or matter before the court."
(DeRosa v. Transamerica Title Insurance Co. (1989) 213 Cal.App.3d 1390, 1395, 262 Cal.Rptr. 370.)

Here, as demonstrated above and in the footnote, plaintiff Scientology has engaged in abusive and unconscientious conduct directly related to the Main Action, the judgment in which this lawsuit seeks to set aside. This includes attempting to deprive defendant of his right to petition the government through use of litigation to harass him, falsification/concealment of crucial evidence, [FN20] improper attempts to depose Main Action jurors and court personnel, efforts to deprive defendant of counsel, key witnesses and evidence, and subjecting him to the "Fair Game" policy. Therefore, equitable relief should be denied because of plaintiff's unclean hands.

FN20. Vicki Aznaran, then the top ecclesiastical authority within Scientology, states under penalty of perjury that after the judge in the Main Action ordered production of Wollersheim's folders, she "removed contents that might have been damaging to Scientology or might have supported Wollersheim's claims against Scientology. For example, I removed evidence of events involving his family, the anguish this caused him, evidence of disconnection from family and evidence of fair game." Aznaran Decl., Ex. 7, 6:1-9. Former Scientology attorney Joseph Yanny also states that during the Main Action there was "wholesale destruction of evidence, theft of documents from private persons, and attempts to infiltrate the Court chambers of [Judge] Swearinger." Yanny Decl., Ex. 8, 32:25-27.

CONCLUSION.

Defendant's special motion to strike falls squarely within the scope of section 425.16. Plaintiff's action arises from defendant's exercise of his First Amendment right to petition the government by filing a lawsuit. Plaintiff cannot meet its burden of establish a probability that it will prevail in the action, for the reasons set forth above. Defendant's special motion to strike should therefore be granted and defendant should be awarded his attorneys' fees and costs. [FN21]

FN21. Section 425.16(c) provides that a prevailing defendant on a special motion to strike "shall be entitled to his or her attorney's fees and costs." This language is mandatory. Defendant should therefore be awarded his fees and costs, which will be established by separately noticed motion if attempts at informal resolution of this matter do not succeed. 
Dated: May 22, 1997                           Respectfully submitted,

                                              Daniel Leipold
                                              Hagenbaugh & Murphy

                                              Mark Goldowitz

                                              Special Counsel for Defendant

                                         By   ____________________________


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