((My comments in double parentheses - Homer))
                         BRECKENRIDGE DECISION
                                CD - 24
                            16 October 1984
                Copyright (C) 1984 Paul Breckenridge Jr.
       Redistribution rights granted for non commercial purposes.
Superior Court of the State of California
for the County of Los Angeles
Church of Scientology of California,   )                      No. C 420153
         Plaintiff,                    )                      MEMORANDUM OF
                                       )                      INTENDED DECISION
            vs.                        )
Gerald Armstrong,                      )
          Defendant                    )
______________________________         )
Mary Sue Hubbard,                      )
         Intervenor                    )
______________________________         )
     In this matter heretofore taken under submission, the Court
announces its intended decision as follows:
     As to the tort causes of action, plaintiff, and plaintiff in
intervention are to take nothing, and the defendant is entitled to
Judgment and costs.
     As to the equitable actions, the court finds that neither plaintiff
has clean hands, and that at least as of this time, are not entitled to
the immediate return of any document or objects previously retained by
the court clerk.  All exhibits received in evidence or marked for
identification, unless specifically ordered sealed (note 1) , are
matters of public record and shall be available for public inspection or
use to the same extent that any exhibit would be available in any other
lawsuit.  In other words they are to be treated henceforth no
differently than similar exhibits in other cases in Superior Court.
Furthermore, the "inventory list and description," of materials turned
over by Armstrong's attorneys to the court, shall not be considered or
deemed to be confidential, private, or under seal.
     All other documents or objects presently in the possession of the
clerk )not marked herein as court exhibits) shall be retained by the
clerk, subject to the same orders as are presently in effect as to
sealing and inspection, until such time as trial court proceedings are
concluded as to the severed cross complaint.  For the purposes of this
Judgment, conclusion will occur when any motion for a new trial has been
denied, or the time within such a motion must be brought has expired
without such motion being made.  At that time, all documents neither
received in evidence, nor marked for identification only, shall be
released by the clerk to plaintiff's representatives.  Notwithstanding
this order, the parties may at any time by written stipulation files
with the clerk obtain release of any or all unused materials.
     Defendant and his counsel are free to speak or communicate upon any
of Defendant Armstrong's recollections of his life as a Scientologist or
the contents of any exhibit received in evidence or marked for
identification and not specifically ordered sealed.  As to all
documents, and other materials held under seal by the clerk, counsel and
defendant shall remain subject to the same injunctions as presently
exist, at least until the conclusion of the proceedings in which defense
counsel, or any of them, is of record, such counsel shall have the right
to discuss exhibits under seal, or their contents, if such is reasonably
necessary and incidental to the proper representation of his or her
     Further, if any court of competent jurisdiction orders defendant or
his attorney to testify concerning the fact of any such exhibit,
document, object, or its contents, such testimony shall be given, and no
violation of this order will occur.  Likewise, defendant and his counsel
may discuss the contents of any documents under seal or of any matters
as to which this court has found to be privileged as between the parties
hereto, with any duly constituted Governmental Law Enforcement Agency or
submit any exhibits or declarations thereto concerning such document or
materials, without violating any order of this court.
     This court will retain jurisdiction to enforce, modify, alter, or
terminate any injunction included within the Judgment.
     Counsel for defendant is ordered to prepare, serve, and file a
Judgment on the Complaint and Complaint in Intervention, and Statement
of Decision if timely and properly requested, consistent with the
court's intended decision.
     The court has found the facts essentially as set forth in the
defendant's trial brief, which as modified, is attached as an appendix
to this memorandum.  In addition the court finds that while working for
L.R.  Hubbard (hereinafter referred to as LRH), the defendant also had
an informal employer-employee relationship with plaintiff Church, but
had permission and authority from plaintiffs and LRH to provide Omar
Garrison with every document or object that was made available to Mr.
Garrison, and further, had permission from Omar Garrison to take and
deliver to his attorneys the documents and materials which were
subsequently delivered to them and thenceforth into the custody of the
County Clerk.
     Plaintiff Church has made out a prima facie case of conversion (as
bailee of the materials), breach of fiduciary duty, and breach of
confidence (as the former employer who provided confidential materials
to its then employee for certain specific purposes, which the employee
later used for other purposes to plaintiff's detriment).  Plaintiff Mary
Jane Hubbard has likewise made out a prima facie case of conversion and
invasion of privacy (misuse by a person of private matters entrusted to
him for certain specific purposes only).
     While defendant has asserted various theories of defense, the basic
thrust of his testimony is that he did what he did, because he believed
that his life, physical and mental well being, as well as that of his
wife were threatened because the organization was aware of what he knew
about the life of LRH, the secret machinations and financial activities
of the Church, and his dedication to the truth.  He believed that the
only way he could defend himself, physically as well as from harassing
lawsuits, was to take from Omar Garrison those materials which would
support and corroborate everything that he had been saying within the
Church about LRH and the Church, or refute the allegations made against
him in the April 22 Suppressive Person Declare.  He believed that the
only way he could be sure that the documents would remain secure for his
future use was to send them to his attorneys, and that to protect
himself, he had to go public so as to minimize the risk that LRH, the
Church, or any of their agents would do him physical harm.
     This conduct if reasonably believed by the defendant and engaged in
by him in good faith, finds support as a defense to the plaintiff's
charges in the Restatements of Agency, Torts, and case law.
     Restatement of Agency, Second, provides:
     "Section 395f: An agent is privileged to reveal information
confidentially acquired by him in the course of his agency in the
protection of a superior interest of himself or a third person."
     "Section 418: An agent is privileged to protect interests of his
own which are superior to those of the principal, even though he does so
at the expense of the principal's interest or in disobedience to his
     Restatement of torts, Second, section 271:
     "One is privileged to commit an act which would otherwise be a
trespass to or a conversion of a chattel in the possession of another,
for the purpose of defending himself or a third person against the
other, under the same conditions which would afford a privilege to
inflict harmful or offensive contact upon the other for the same
     The Restatement of Torts, Second, section 652a, as well as case
law, make it clear that not all invasions of privacy are lawful or
tortious.  It is only when the invasion is unreasonable that it becomes
actionable.  Hence, the trier of fact must engage in a balancing test,
weighing the nature and extent of the invasion, as against the purported
justification therefore to determine whether in a given case, the
particular invasion was unreasonable.
     In addition the defendant has asserted as defense the principal
involved in the Case of Willig vs Gold, 75 Cal.App.2d, S09, S14, which
holds that an agent has a right to disclose his principal's dishonest
acts to the party prejudicially affected by them.
     Plaintiff Church has asserted and obviously has certain rights
arising out of the First Amendment.  Thus, the court cannot, and has not
inquired into or attempted to evaluate the merits, accuracy, or
truthfulness of Scientology or any of its precepts as a religion.  First
Amendment rights, however, cannot be utilized by the Church or its
members, as a sword to preclude the defendant, who the Church is suing,
from defending himself.  Therefore, the actual practices of the Church
or its members, as it relates to the reasonableness of the defendant's
conduct and his state of mind are relevant, admissible, and have been
considered by the court.
     As indicated by its factual findings, the court finds the testimony
of Gerald and Jocelyn Armstrong, Laurel Sullivan, Nancy Dincalcis,
Edward Walters, Omar Garrison, Kima Douglas, and Homer Schomer to be
credible, extremely persuasive, and the defense privilege of
justification established and corroborated by this evidence.  Obviously
there are some discrepancies or variations in recollections, but these
are the normal problems which arise from lapse of time, or from
different people viewing matters or events from different perspectives.
In all critical and important matters, their testimony was precise,
accurate, and rang true.  The picture painted by these former dedicated
Scientologists, all of whom were intimately involved with LRH, or Mary
Jane Hubbard, or of the Scientology Organization, is on one hand
pathetic, and on the other hand, outrageous.  Each of these persons
literally gave years of his or her respective life in support of a man,
LRH, and his ideas.  Each has manifested a waste and loss or frustration
which is incapable of description.  Each has broken with the movement
for a variety of reasons, but at the same time, each is, still bound by
the knowledge that the Church has in its possession his or her most
inner thoughts and confessions, all recorded in "Pre-clear (P.C.)
folders" or other security files of the organization, and that the
Church or its minions is fully capable of intimidation or other physical
or psychological abuse if it suits their ends.  The record is replete
with evidence of such abuse.
     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 his sect.  (Exhibit 500-HHHHH) >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, and the bizarre combination seems to be a reflection of
its founder LRH.  The evidence portrays a man who has been virtually a
pathological liar when it comes to his history, background, and
achievements.  The writings and documents in evidence additionally
reflect his egoism, greed, avarice, lust for power, and vindictiveness
and aggressiveness against persons perceived by him to be disloyal or
hostile.  At the same time it appears that he is charismatic and highly
capable of motivating, organizing, controlling, manipulating, and
inspiring his adherents.  He has been referred to during this trial as a
"genius," a "revered person," a man who was "viewed by his followers
with awe."  Obviously, he is and has been a very complex person, and
that complexity is further reflected in his alter ego, the Church of
Scientology.  Notwithstanding protestations to the contrary, this court
is satisfied that LRH runs the Church in all ways through the Sea
Organization, his role of Commodore, and the Commodore's Messengers.  (3
see exhibit K Flag Order 3729).  He has, of course, chosen to go into
"seclusion." but he maintains contact and control through the top
messengers.  Seclusion has its light and dark side too.  It adds to his
mystique, and yet shields him from accountability and subpoena or
service of summons.
     LRH's wife, Mary Sue Hubbard is also plaintiff herein.  On the one
hand she certainly appeared to be a pathetic individual.  She was forced
from her post as controller, convicted and imprisoned as a felon, and
deserted by her husband.  On the other hand her credibility leaves much
to be desired.  She struck the familiar pose of not seeing, hearing or
knowing any evil.  Yet she was the head of the Guardian Office for years
and among other things, authored the infamous order "GO 121669" which
directed culling of supposedly confidential P.C.  files/folders for
purposes of internal security.  In her testimony she expressed the
feeling that defendant by delivering the documents, writings, letters to
his attorneys, subjected her to mental rape.  The evidence is clear and
the court finds that defendant and Omar Garrison had permission to
utilize these documents for the purpose of Omar Garrison's proposed
biography.  The only other persons who were shown any of the documents
were the defendant's attorneys, the Douglasses and Dincalcis, and
apparently some document specifically affecting LRH's son "Nibs," were
shown to "Nibs." The he Douglasses and Dincalcises were disaffected
Scientologists who had a concern for their own safety and mental
security, and were in much the same situation as the defendant, They had
not been declared suppressive, but Scientology had their P.C.  folders,
as well as other confessions, and they were extremely apprehensive.
They did not see very many of the documents, and it is not entirely
clear which they saw.  At any rate Mary Sue Hubbard did not appear to be
so much distressed by this fact, as by the fact that Armstrong had given
the documents to Michael Flynn, whom the Church considered its foremost
lawyer-enemy.(Note5- " No, I think my emotional distress and upset is
the fact that someone took papers and materials without my authorization
and then gave them to your Mr.  Flynn." However just as the plaintiffs
have First Amendment rights, the defendant has a Constitutional right to
an attorney of his own choosing.  In legal contemplation this fact that
defendant selected Mr.  Flynn rather than some other lawyer cannot by
itself be tortious.  In determining whether the defendant unreasonably
invaded Mrs.  Hubbard's privacy, the court is satisfied the invasion was
slight, and the reasons and justification for the defendants conduct
manifest.  Defendant was told by Scientology to get an attorney.  He was
declared an enemy by the Church.  He believed, reasonably, that he was
subject to "fair game." The only way he could defend himself, his
integrity, and his wife was to take that which was available to him and
place it in a safe harbor, to wit, his lawyer's custody.  He may have
indulged in overkill, in the sense that he took voluminous materials,
some of which appear only marginally relevant to his defense.  But he
was not lawyer and cannot be held to that precise standard of judgment.
Further , at the time that he was accumulating the material, he was
terrified and undergoing severe emotional turmoil.  The court is
satisfied that he did not unreasonably intrude upon Mrs.  Hubbard's
privacy under the circumstances by in effect simply making his knowledge
that of his attorneys.  It is of course, rather ironic that the person
who authorized G.O.  121669 should complain about invasion of privacy.
The practice of culling supposedly confidential "P.C.  folders or files"
to obtain information for purposes of intimidation and or harassment is
repugnant was no respector of anyone's civil rights, particularly that
of privacy.  Plaintiff Mary Sue Hubbard's cause of action for conversion
must fail for the same reason as plaintiff Church.  The documents were
all together in Omar Garrison's possession.  There was no way the
defendant could make any distinction.
     Insofar as the return of documents is concerned, matters which are
still under seal may have evidentiary value in the trial of the cross
complaint or in other third party litigation.  By the time that
proceedings on the cross complaint are concluded, the court's present
feeling is that those document or objects not used by that time should
be returned to the plaintiff.  However the court will reserve
jurisdiction to reconsider that should circumstances warrant.
     Dated: June 20th 1984
     Paul G. Breckenridge, Jr
     Judge of the Superior Court
Homer Wilson Smith           This file may be found at
homer@rahul.net              ftp.rahul.net/pub/homer/act/CD24.MEMO
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