angry gay pope motion to strike 091908 by zSC0UA

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									     GRAHAM E. BERRY, Bar No.128503                                             Filed 09.19.2008
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     Attorney at Law
2    3384 McLaughlin Avenue
     Los Angeles, California 90066-2005
3    Telephone: (310) 745-3771
     Facsimile: (310) 745-3771
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     Email: grahamberry@ca.rr.com
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     Attorney for Respondent
6    Donald J. Myers
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                IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9               FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

10                                                        )   Case Nos. BS116340 /BS116339
                                                          )
11   LISSA UVIZL,                                         )   Hon. Richard E. Rico
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                                                          )
                                    Plaintiff,            )   [PROPOSED] ORDER GRANTING
13                                                        )   SPECIAL MOTION TO STRIKE, IN
              vs.                                         )   SUPPORT OF DEFENDANT’S C.C.P.
14                                                        )   §425.16 SPECIAL MOTION TO STRIKE,
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                                                          )   ETC.
     DONALD J. MYERS,                                     )
16                                                        )               (C.C.P. §527.6 and 425.16)
                                    Respondent.           )
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                                                          )   DATE: Friday, October 24, 2008.
                                                          )   TIME: 8-30 a.m.
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                                                          )   DEPT: 76
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                                                          )   Action Filed: August 11, 2008
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     LEWIS MIRANDA,
                                                          )   Trial Date: None
21                               Plaintiff,               )
                                                          )   Filed concurrently with: (1) Defendant’s Notice
22                  vs.                                   )   of Special Motion to Strike, etc; (2) Declaration
                                                          )   of Donald J. Myers and Exhibits;
23                                                            (3) Declaration of Graham E. Berry and
                                                          )
     DONALD J. MYERS,                                     )   Exhibits; (4) Declaration of Garry Scarff and
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                                                          )   Exhibits; (5) Declaration of Florian Schwarnert
25                               Respondent.              )   and Exhibits; (6) Evidentiary objections and
                                                              proposed order thereon.
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                    Defendant’s [Proposed] Order granting Defendant’s C.C.P. §425.16 Motion, etc.             1
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            Defendant Donald J. Myer’s Special Motion to Strike the Complaint of Plaintiff’s Lissa
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     Uvizl and Donald J. Myers came on regularly for hearing on October 24, 2008. Having reviewed
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     the points and authorities, evidence and other written submissions filed by the parties, and having
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5    heard oral argument, the Court finds as follows:

6           1.        Defendant participates in the First Amendment free speech activities of a global
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                      group calling themselves Anonymous. Defendant’s evidence indicates that
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                      since February 2008 up to ten thousand people have been engaged in same day
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                      Anonymous protests against the Church of Scientology. Defendant’s evidence

11                    also indicates that Anonymous opposes and protests alleged crimes and abuses
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                      of the Church of Scientology and not any of its religious beliefs. Defendant’s
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                      evidence establishes that the Anonymous group protests against the Church of
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                      Scientology’s alleged wrongful conduct involves speech in connection with an
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16                    issue of public interest.

17          2.        On a number of different dates Defendant has participated in Anonymous
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                      group picketing and protest activity on the public sidewalks outside the Church
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                      of Scientology management and administration office building located at the
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                      corner of 6331 Hollywood and Ivar Avenue, Los Angeles, California. The
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22                    evidence establishes that these public sidewalks, being government property,

23                    are a public forum. When Defendant has participated in pickets at this location
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                      the number of other people participating with him have ranged from several
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                      others to several hundred others. Defendant’s evidence also indicates that this
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                      particular sidewalk area is monitored by a number of security cameras and the

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                     Defendant’s [Proposed] Order granting Defendant’s C.C.P. §425.16 Motion, etc.      2
           Church of Scientology maintains uniformed and plain clothes security officers
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2          in the 6331 Hollywood Boulevard building and upon the adjacent sidewalks.

3    3.    Defendants evidence also indicates that on most, if not all, occasions that he
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           and those accompanying him have been picketing on the public sidewalks
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           around 6331 Hollywood Boulevard, Los Angeles, CA. the Los Angeles Police
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           Department has responded to calls from Church employees. Defendants

8          evidence indicates that all of these pickets have been peaceful and no related
9          arrests have been made by the L.A.P.D. Plaintiffs have submitted no credible
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           evidence to the contrary. The evidence before the court is that Defendant has no
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           record of any arrests or convictions and has not previously been involved in
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13         any proceedings to stop harassment. There is no credible evidence before the

14         Court that the Defendant has any history of violence or mental instability.
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     4.    Defendant denies that he has engaged in the type of speech and conduct that
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           Plaintiff’s evidence suggests by way of legal conclusion but without any
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           specificity.
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19   5.    Defendant’s declaration executed on September 18, 2008, admits the following:

20           A. That he has picketed on the public sidewalks outside 6331 Hollywood
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                  Boulevard on various occasions since March 2008;
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             B. On each occasion he has been accompanied by other Anonymous
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                  participants. These have ranged from several hundred to him and several
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25                others;

26           C. For reasons set forth in his declaration, when Defendant has picketed the
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                  Church of Scientology he has done so Anonymously, wearing a small
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          Defendant’s [Proposed] Order granting Defendant’s C.C.P. §425.16 Motion, etc.     3
                  party mask and often a replica of a Pope’s Miter hat. He calls himself the
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2                 “Angry Gay Pope;”

3            D. Defendant’s evidence indicates that most if not all of the pickets he has
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                  attended at 6331 Hollywood Boulevard have been photographed and
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                  video taped. Defendant’s evidence also indicates that many of these
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                  photographs and videos have been uploaded to the Internet where they

8                 have been viewed by thousands of people;
9            E. Defendant alleges that after he had participated in a June 14, 2008 global
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                  picket of the Church of Scientology it used private investigators to follow
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                  him, other persons, and other wrongful conduct to obtain his real identity
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13                and address and then to retaliate against him with these proceedings;

14           F. Defendant admits participating in Anonymous pickets outside the Church
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                  of Scientology management building at 6331 Hollywood Boulevard, Los
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                  Angeles, CA on July 22, 2008, August 11, 2008 and August 14, 2008.
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     6.    Plaintiffs have lodged a video as part of their evidence. It was made by
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19         Defendant and uploaded to the Internet. The Court has viewed that videotape

20         and does not conclude it provides credible evidence of the allegations
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           Plaintiff’s make in support of this proceeding. Although reasonable people may
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           debate whether all of Defendants speech and conduct is in good taste that is not
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           among the legal criteria this Court must apply to the evidence. The video
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25         submitted by Plaintiff, and Defendant’s evidence, actually establish that the

26         Plaintiff’s challenged cause of action herein arose from Defendant’s
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          Defendant’s [Proposed] Order granting Defendant’s C.C.P. §425.16 Motion, etc.        4
           constitutionally protected conduct in connection with a public issue in a public
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2          forum.

3    7.    In addition, there is no probability that Plaintiff’s will prevail upon their
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           challenged cause of action:
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                    A. There is credible evidence that this proceeding was instigated in fact
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                        by the Plaintiff’s attorney Kendrick Moxon. Defendant’s evidence is

8                       that Mr. Moxon is part of the legal unit of the Church of Scientology
9                       Office of Special Affairs which is also located in the Church of
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                        Scientology management building at 6331 Hollywood Boulevard,
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                        Los Angeles, CA. This evidence has not been credibly contested. In
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13                      particular, the evidence indicates that Mr. Moxon’s law partner or

14                      associate, Ava Paquette, Esq., personally appeared on the public
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                        sidewalks and threatened Defendant with arrest and prosecution on
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                        July 14, 2008. The evidence establishes that she did not expressly do
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                        so on behalf of any client; The evidence also indicates that Mr.
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19                      Moxon personally appeared on the public sidewalks and threatened

20                      Defendant with these legal proceedings on July 22, 2008. The
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                        evidence also establishes he did not do so expressly on behalf of any
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                        client. Mr. Moxon expressly stated that he was going to file a law
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                        suit the next day, July 23, 2008. Mr. Moxon’s own declaration of
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25                      service refers to his communication with the Plaintiff’s on August

26                      10, 2008, the day before this proceeding was filed.
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          Defendant’s [Proposed] Order granting Defendant’s C.C.P. §425.16 Motion, etc.       5
              B. There is credible evidence that Mr. Moxon has previously instigated
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2                  litigation against Scientology critics, litigation opponents and their

3                  legal counsel and that Mr. Moxon has previously engaged in
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                   blackmail, bribery, perjury, obstruction of justice and other public
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                   corruption in such matters. Defendant has also submitted evidence
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                   indicating that Mr. Moxon abused the August 11, 2008 temporary

8                  restraining order herein by applying it to locations expressly
9                  excluded by the court in its Temporary Restraining Order. There is
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                   further evidence from both the Defendant and Garry Scarff that the
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                   Church of Scientology has abused the Temporary Restraining Order
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13                 issued herein by attempting to have law enforcement officers use it

14                 prevent the Defendant from picketing Church of Scientology
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                   premises located at Tustin and Hemet in Riverside County on
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                   September 6, 2008. The declaration of Florian Schwarnert also
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                   establishes that during the penance of this matter, Plaintiff’s
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19                 attorney, and other Church of Scientology officials, followed

20                 Defendant’s counsel to Hamburg, Germany where he threatened two
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                   German State employees with litigation if they did not admit him to
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                   an international forum being addressed by Defendant’s counsel and
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                   then demanded they provide their passports and identification to
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25                 him.

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     Defendant’s [Proposed] Order granting Defendant’s C.C.P. §425.16 Motion, etc.          6
                              C. There is evidence that two witnesses herein have been served with
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2                                  “cease and desist” letters delivered by Church of Scientology

3                                  representatives.
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                              D. There is evidence that Church of Scientology representatives have
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                                   been monitoring the visits of a witness herein to Defendant’s counsel
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                                   and that they have been monitoring the communications of that

8                                  witness and Defendants counsel herein.
9                             E. The evidence of the Plaintiff’s is insufficient for the reasons set
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                                   forth in Defendant’s Memorandum of Points and Authorities filed
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                                   herein.
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13          8.        For the foregoing reasons, among others, and construing Code Civ. Procedure

14                    §425.16 broadly as provided therein, the Court finds that Plaintiff’s cause of
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                      action against the Defendant arose from acts of that person in furtherance of the
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                      person’s right of petition or free speech under the United States or California
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                      Constitution in connection with a public issue. The Court also determines that
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19                    the Plaintiffs have not established that there is a probability that they will

20                    prevail upon their pending challenged claim.
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            Accordingly, the Court concludes that Defendant’s Special Motion to Strike the
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     Plaintiff’s Complaint herein, pursuant to Code Civ. Procedure §425.16 shall be granted,
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     Plaintiff’s Code Civ. Proc.§527.6 complaints shall be stricken, and the temporary restraining
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25   order issued in connection therewith shall be dissolved.

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                     Defendant’s [Proposed] Order granting Defendant’s C.C.P. §425.16 Motion, etc.      7
             Pursuant to Code Civ. Proc. §425.16(c), Plaintiff’s shall pay Defendant his counsel’s
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2    reasonable attorney fees and costs in the amount of $_______ and within thirty days of the entry

3    of this order.
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6    IT IS SO ORDERED:
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     Dated: October ____, 2008                     ________________________
8                                                     Superior Court Judge
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     Respectfully presented by:
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     ___________________
14   Graham E. Berry,
     Attorney for Defendant Donald J. Myers
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16   Dated: September 19, 2008

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                      Defendant’s [Proposed] Order granting Defendant’s C.C.P. §425.16 Motion, etc.   8
                                                             PROOF OF SERVICE
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     STATE OF CALIFORNIA)
3                       ) ss.
     COUNTY OF LOS ANGELES)
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     I reside in the County of Los Angeles, State of California. I am over the age of 18 and I am not a
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     party to the within action.
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     On September 19, 2008 I served the foregoing document described as:
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10   [PROPOSED] ORDER GRANTING SPECIAL MOTION TO STRIKE, IN SUPPORT OF
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     DEFENDANT’S C.C.P. §425.16 SPECIAL MOTION TO STRIKE, ETC.

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     By Personal Delivery to a person in control of the reception area, in an envelope addressed as
13   follows:
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     Kendrick L. Moxon, Esq.
15   Moxon & Kobrin
     3055 Wilshire Boulevard, Suite 900
16   Los Angeles, CA 90010
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     I declare under penalty of perjury under the laws of the State of California that the foregoing is
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19   true and correct.

20   Executed this 19th day of September, 2008, at Los Angeles, California.
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                                                   Signed: ________________________________
23                                                 Print Name: Graham E. Berry
                                                     Address: 3384 McLaughlin Avenue,
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                                                               Los Angeles, CA 90066
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                         Defendant’s [Proposed] Order granting Defendant’s C.C.P. §425.16 Motion, etc.    9

								
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