Appellants’ Opposition To Respondent’s Petition For An Extension Of Time To File Responsive Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
Civ. No. B. 025920
(Super. Ct. No. C420153)

CHURCH OF SCIENTOLOGY OF CALIFORNIA,

Plaintiff-Appellant,
and
MARY SUE HUBBARD,
Intervenor-Plaintiff-Appellant,
-against-
GERALD ARMSTRONG,
Defendant-Respondent.

APPELLANTS’ OPPOSITION TO RESPONDENT’S
PETITION FOR AN EXTENSION OF TIME
TO FILE RESPONSIVE BRIEF

Respondent Gerald Armstrong has sought leave for permission to file a brief herein, and for an extension of 90 days in which to file such a brief. Appellants. have had no objection to Mr. Armstrong filing a brief in this matter, and, indeed, have communicated that fact to Mr. Armstrong’s counsel of record herein. Appellants do object to Mr. Armstrong’s dilatory tactics in not filing a brief on time, apparently dismissing his counsel of record while the appeal is pending, and then seeking a further delay of 90 days in which to file a brief.

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Mr. Armstrong makes reference to a document entitled Mutual Release of all Claims and Settlement Agreement”, which settled the plaintiffs’ claims for return of documents and injunctive relief and Mr. Armstrong’s cross-claim for damages, but left unsettled the plaintiffs’ claims for nominal damages for intrusion on privacy, conversion and breach of confidence. Mr. Armstrong claims that a provision of that agreement prohibits him from responding to appellants’ brief in this case. Mr. Armstrong’s position is incorrect.

At the time the Settlement Agreement was entered into, this case had been fully briefed and argued and was awaiting decision by this Court. All parties to this case contemplated that this Court would render a   decision on the merits of the appeal. In the Settlement Agreement, Mr. Armstrong waived the right to take any further appeals from the decision of this Court in the event this Court reversed the judgment of the Superior Court. Mr. Armstrong further agreed not to file any new briefs if the Church should take an appeal to the California Supreme Court. In such an event, of course, Mr. Armstrong’s previously filed briefs in this Court would have been considered by the California Supreme Court. See California Rules on Appeal, Rule 29.3.

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At the time of the settlement agreement, no party contemplated that this Court would dismiss the Church’s prior appeal for lack of appellate jurisdiction,1 thereby requiring the Church to renotice and reperfect its appeal. Indeed after renoticing this appeal, the Church filed a motion to have the appeal decided on the basis of the prior briefs and oral argument, which motion was denied by this Court on April 22, 1987. There then was a delay of over two years until this Court established a briefing schedule for the new appeal.   Appellants filed their brief on this new appeal on December 18, 1989, which brief largely incorporated from appellants’ prior brief the substantive arguments still at issue in this case.

Both before and after filing appellants’ brief on this appeal, appellant’s counsel communicated by telephone and letter with Michael Tabb, Esq. of the firm of Flynn, Sheridan & Tabb, who are counsel of record for Mr. Armstrong. Counsel for appellants and Mr. Tabb were in agreement that Mr. Armstrong could and would respond to appellants’ brief herein, most likely by filing a motion to incorporate relevant sections of the brief previously filed by Mr. Armstrong in the Church’s earlier appeal, which had been dismissed. Counsel for appellants even went so far as to identify for Mr. Tabb, for his review and consideration, those sections and pages of Mr.     Armstrong’s previous brief which remained relevant to the present appeal.
_________

1An issue which had neither been briefed nor raised at oral argument.

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After the time had passed for Mr. Armstrong to file either a brief or a motion incorporating his prior brief, undersigned counsel for appellants telephoned Mr. Tabb on several occasions to determine why Mr. Armstrong had not responded to appellants brief. After several conversations Mr. Tabb informed undersigned counsel that Mr. Armstrong had fired Flynn, Sheridan & Tabb and would be proceeding with new counsel. Undersigned counsel inquired as to the identity of new counsel, so that he could contact new counsel to determine whether and when a brief or motion would be filed by Mr. Armstrong. Mr. Tabb replied that he did not know the identity of new counsel.

Therefore it is absurd for Mr. Armstrong to now claim that he needed leave of court to file a brief or to adopt his prior brief, since it was clear from the discussions between opposing counsel that counsel for appellants recognized that Mr. Armstrong would file, and had no objection to such filing. Rather, it would appear that Mr. Armstrong is attempting to divert the Court from proceeding with the present appeal, and to seek an unconscionable delay in filing a brief on the merits.

On February 22 this Court issued a notice “that if [Respondent’s] brief is not on file within 30 days after the date of this notice, or good cause shown for relief from default, the appeal would be submitted for decision upon the record on the appellants’ opening brief. Mr. Armstrong has not shown good cause for any further extension of time. His brief, or motion to incorporate relevant sections of his prior brief,

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therefore should be ordered to be filed by no later than March 24, 1990.

Respectfully submitted,

[signed Eric M. Lieberman]
ERIC M. LIEBERMAN
RABINOWITZ, BOUDIN, STANDARD,
KRINSKY & LIEBERMAN
740 Broadway, Fifth Floor
New York, New York 10003-9518
(212) 254-0111

Counsel for Appellants

MICHAEL LEE HERTZBERG
740 Broadway, Fifth Floor
New York, New York 10003-9518
(212) 982-9870

Counsel for Appellant
Mary Sue Hubbard
Dated: March 6, 1990

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CERTIFICATE OF SERVICE
STATE OF NEW YORK
COUNTY OF NEW YORK

)
) ss.:
)

Simone Leak, being duly sworn deposes and says, that   she is not a party to the action, is over 18 years of age and resides in New York, New York. That on the 6th day of March, 1990, she served the within Appellants’ Opposition to Defendant’s Petition for Permission to File Response and for Time to File upon:

CLERK OF THE SUPERIOR COURT
111 North Hill Street
Los Angeles, California 90012

MICHAEL J. FLYNN, ESQ.
FLYNN, SHERIDAN & TABB
One Boston Place, 26th Floor
Boston, Massachusetts 02108

GERALD ARMSTRONG
6838 Charing Cross Road
Berkeley, California 94705

the addresses designated by said attorneys for that   purpose, by depositing a true copy of same enclosed in a post-paid properly addressed wrapper, in a post office official depository under the exclusive care and custody of the United States Postal Service within the State of New York.

[signed Simone Leak]
SIMONE LEAK

Sworn to before me
this 6th day of March, 1990
[signed Terry Gross]
NOTARY PUBLIC
TERRY GROSS
Notary Public, State of New York
No. 31-4942893
Qualified in New York County
Commission Expires October 11, 1990

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