TOBY L. PLEVIN
ATTORNEY AT LAW
6380 WILSHIRE BLVD.. SUITE 1600
LOS ANGELES. CALIFORNIA 90048
March 6, 1990
Second District Court of Appeals
3580 Wilshire Blvd
ATTENTION: Frank Stapleton
Re: Church of Scientology of California vs. Gerald Armstrong
Appeal No. B 038975 (Div 4)
Appeal No. B 025920 (Div 3)
Dear Mr Stapleton:
The undersigned counsel for Bent Corydon are responding to your inquiry regarding the circumstances relating to the document filed by Mr. Gerald Armstrong, on March 1, 1990 in Appeal No B 038975. Attached to that document was a Settlement Agreement regarding Armstrong’s cross-claim in Church of Scientology of California vs. Armstrong LASC Case No. C 420153. It has also been filed in Division 3 of this Court of Appeal in connection with another appeal arising from the same underlying lawsuit. Superior Court files in this case in response to a motion brought by Mr. Corydon. Mr. Corydon is in litigation with the Church of Scientology of California and other Scientology entities and individuals (hereinafter “Scientology”). The appeal in Division 3 is an appeal by the Church of Scientology of California and the Intervenor in the underlying case, Mary Sue Hubbard, from Judge Breckenridge’s 1984 decision in favor of Mr. Armstrong in connection with the underlying complaint. In order to respond to your inquiry, we must briefly review the background to the present appeals.
The appeal in Division 4 arises from an order unsealing the Superior Court files in this case in response to a motion brought by Mr. Corydon. Mr. Corydon is in litigation with the Church of Scientology of California and other Scientology entities and individuals (hereinafter “Scientology”). The appeal in Division 3 is an appeal by the Church of Scientology of California and the Intervenor in the underlying case, Mary Sue Hubbard, from Judge Breckenridge’s 1984 decision in favor of Mr. Armstrong in connection with the underlying complaint. In order to respond to your inquiry, we must briefly review the background to the present appeals.
The lawsuit was brought by the Church of Scientology of California against Mr. Armstrong for conversion arising from his possession of various personal papers and other archive documents of L. Ron Hubbard. Mr. Armstrong had access to these documents as the archivist for L. Ron Hubbard while he was still a member of the Church of Scientology. In due course Mr. Armstrong filed a cross-complaint against Scientology alleging a variety of grounds arising from his tenure in Scientology including, inter
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alia, intentional infliction for emotional distress. The matter was bifurcated, and, in a 1984 bench trial, Judge Breckenridge found against the plaintiff and intervenor on their complaint. On December 11, 1986 a settlement agreement was presented to the Court under which Gerald Armstrong agreed to the dismissal of his cross-complaint while permitting the Church to appeal Judge Breckenridge’s decision on the complaint and to have that matter re-tried against him if the Court of Appeals remanded the matter for trial. See Exhibit A hereto, Transcript of Proceedings of December 11, 1986, page 2 line 16 through page 3 line 21. During the hearing regarding the settlement terms, Judge Breckenridge was not informed that, as part of the Settlement Agreement, Armstrong was precluded from filing an opposition to the appeal, (see Mutual Release of all Claims and Settlement Agreement hereinafter “Settlement Agreement” attached hereto as Exhibit B, at page 4-5) nor was Judge Breckenridge informed that if the matter indeed was retried that there was a side agreement executed by counsel for the Church-under which Armstrong would be indemnified if the Church prevailed. (See Exhibit C hereto which was attached as part of the Appendix to the Appellant’s Brief in Appeal No. B 025920 now pending in Division 3). Given the overall effect of these agreements, the undersigned believe that the appellants never intended to retry the case even if they prevailed on appeal but merely wanted an unobstructed path to overturning Judge Breckenridge’s decision which contained findings extremely critical of Scientology.
During the December 11, 1986 hearing regarding the Settlement Agreement, Church counsel (including Lawrence E. Heller, a California attorney, Michael E. Hertzberg, a New York attorney appearing Pro Hac Vice, as well as Michael Flynn, attorney for Gerald Armstrong, and a member of the Massachusetts Bar appearing Pro Hac Vice), made the following representations to the Court:
1. That Armstrong had agreed to a Stipulated Sealing Order as part of the overall settlement which required the sealing of the entire court file. (See Exhibit A hereto, page 6 lines 17-28, and Exhibit D, Stipulated Sealing Order).
In fact, the Settlement Agreement, attached hereto as Exhibit B, contains no such clause. Nevertheless, Appellants in the within appeal have continued to state in this appeal that the sealing was required by the Settlement Agreement and desired by “the parties”.
March 6, 1990
2. The Settlement Agreement had been filed with the court and would be subject to the jurisdiction of the court, (see Exhibit E hereto).
In fact the Settlement Agreement had not been filed and was never filed. (See Exhibits F and G, Minute Orders of December 12 and 16, 1986). Counsel for appellants acknowledged that the Agreement was never filed in motion proceedings respecting the unsealing of the file.
Not only did counsel make the above misrepresentations to the Court they also failed to inform the Court of several matters directly relevant to the settlement which suggest highly questionable conduct of all counsel. First, while the Settlement Agreement anticipated that the Church would prosecute its appeal from Judge Breckenridge’s decision, it contained a clause precluding Armstrong from filing an opposition to the appeal. In the opinion of the undersigned, this demonstrates that the Church and its counsel are currently prosecuting a collusive appeal in Division 3. See Exhibit B, paragraph 4B, pages 4-5).
Second, Armstrong was precluded from cooperating voluntarily with any parties adverse to the Church, including United States government entities, and was permitted to discuss matters on which he had evidence regarding the Church and/or any affiliated entities or individuals only if required to do so by lawful subpoena. However, the agreement also contained a provision under which he was required to avoid service of process of deposition subpoenas or subpoenas for trial under a clause worded that he “not be amenable for service of process”. See Exhibit B paragraph 7(h) at page 10.
Third, as referenced in paragraph 3 of the Settlement Agreement, Mr. Flynn had negotiated the Settlement Agreement for Mr. Armstrong as part of a package settlement on behalf nineteen plaintiffs and, at the same time, settled his (Flynn’s) claims against the Church. Flynn was given an undisclosed sum of money which he then divided up among himself and his clients and, although this has not been authenticated, the undersigned counsel for Mr. Corydon believe that the exhibit attached hereto as Exhibit H is a true copy of the agreement between and among Flynn and his clients dividing up that money.
Finally, Armstrong’s attorney Michael J. Flynn, was also required, as a prerequisite to reaching a settlement on behalf of his clients and himself, to cease representation of or assistance to any person adverse to the Church of Scientology who was not
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part of the Settlement Agreement and, furthermore, that he agree not to represent any such individuals in the future this prohibition extended to withdrawing from continuing representation of Mr. Armstrong in the contemplated appeal. Mr. Corydon was a client of Mr. Flynn at that time and on information and belief he and his co-parties in the Riverside lawsuit were the only remaining Flynn clients adverse to the Church of Scientology who were not part of the package settlement. Flynn informed Corydon after the December 1986 settlements were reached that he could no longer assist Mr. Corydon for the reasons set forth herein and, in fact, refused to do so requiring Corydon to seek new counsel. (See Declaration of Corydon, Exhibit I hereto).
Attorney Lawrence E. Heller has taken credit for negotiation of these agreements in a declaration filed by him in the currently pending lawsuit between Mr. Corydon against various Church of Scientology entities captioned Corydon vs. Church of Scientology International et. al. LASC Case No. 694401. A true copy of that Declaration is attached hereto as Exhibit J. Mr. Heller’s declaration was submitted in support of a motion filed by him to prevent the deposition of Mr. Armstrong and others from going forward. In addition, the transcript of December 11, 1986 (Exhibit A hereto) makes clear that Michael Hertzberg, who is currently appearing pro hac vice in the Corydon lawsuit, was also a participant in those negotiations.
On February 16, 1990, Mr. Armstrong appeared for deposition although the scheduled deposition of Mr. Armstrong did not go forward for reasons unrelated to these issues. At that time he informed one of Mr. Corydon’s undersigned attorneys, Toby L. Plevin, that he had been intimidated regarding appearing for the deposition, including most recently having received a telephone call relaying a message by Eric Liebermann, another Church attorney, that Scientology believed Mr. Armstrong had been “too amenable” to service of process. Mr. Armstrong also mentioned that he had previously been told by Mr. Heller that he should permit Scientology (with whom Mr. Armstrong is currently in litigation) to pay for an attorney to represent him at the deposition. According to Mr, Heller that attorney would follow the Church directives to instruct Mr. Armstrong not to answer certain questions that Scientology deemed to be embarrassing or in conflict with the silencing provisions of the Settlement Agreement.
Based on the language in paragraph 3 of the Settlement Agreement entered into by Mr. Armstrong, it is clear that the Scientology has entered into similar silencing agreements with other individuals knowledgeable about its operations. And it is also clear that such agreements operate to the severe detriment
March 6, 1990
of other parties adverse to the Church in proving their cases against the Church or defending against Church claims against them. Mr. Corydon is in both categories. Mr. Corydon is defendant in three defamation actions brought by various Church entities and individuals who are beneficiaries of the silencing provisions of the Settlement Agreements and who are therefore protected from the in-depth knowledge of the signatories to the silencing agreements regarding the truthfulness of Mr. Corydon’s statements. Two of the lawsuits have been coordinated as The Corydon Defamation Action, LASC Judicial Coordination Proceeding 5121. In those actions Mr. Corydon is represented by Mr. Paul Morantz, who, because the agreements prevent Corydon from fully defending himself in the lawsuit,s has sought to have the complaints dismissed on the grounds of unclean hands and obstruction of justice. Recently, Judge Feinerman, sitting by designation, denied both the motion to dismiss and the alternative request to order the defamation plaintiffs to release the signatories from the silencing provisions of the agreements. Judge Feinerman opined that the remedy for Mr. Corydon in connection with these agreements would be an action for spoliation of evidence. Mr. Corydon filed a writ in this Court respecting that decision which was denied.
That matter is now pending before the California Supreme Court. We note for the record that, under California law, where the illegality of a contract is presented for the first time to the Court of Appeals, the Court of Appeals is oat under a duty to investigate the nature and circumstances of that contract in order to be certain that the judicial process and the Court of Appeals are not being used to support illegal ends. See eg La Fortune v. Ebie 26 Ca1.App3d 72; Lewis and Queen v. M&M Ball Sons 48 C.2d 141. In light of the inquiry from Mr. Stapleton we hope that the Court of Appeals will undertake such an inquiry, including notification of the proper authorities, including the State Bar and the Attorney General, and, once satisfied that the contract on which both the pending appeals are based is illegal, will dismiss both pending appeals.
Very truly yours,
Toby L. Plevin
cc: All Counsel of Record