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13 April 2000:
CST Legal Papers 13 Mitchell vs. CST Appeal
Date: 13 Apr 2000 08:58:43 -0000 From: Anonymous-Remailer@See.Comment.Header (Legal Archives) Subject: CST Legal Papers 13 Mitchell vs. CST Appeal Newsgroups: alt.religion.scientology Message-ID: <39B54490AB8@127.0.0.1> NOTES: 1. This is an Appeal filed on 3 March 2000 in the Court of Appeals for the Second District of California. It is appealing the dismissal of a libel suit that had been earlier filed by Stephen Mitchell and Kathleen Carey against the CORPORATION known as "Church of Spiritual Technology" (CST), doing business as (dba) "L. Ron Hubbard Library." This appeal was posted to the internet anonymously. 2. The Appeal refers repeatedly to a "Clerk's Transcript" (CT), and references numerous documents apparently included as part of, or appended to, the CT (e.g., "see CT page 000158"). It is believed that these references are all to documents that were part of the original libel suit record, but these documents are not currently available. 3. A web site known as "Veritas" was, at one time, posting documents from the original suit, so some of the referenced documents may be on that site. Veritas can be found at: http://www.clever.net/webwerks/veritas/index.htm Veritas seemed to stop keeping up with the case at some point. Hopefully, they or somebody will pick up the story with the Appeal being filed, and will web the referenced documents. (Veritas also has many other documents and records and facts regarding CST for anyone who is interested in learning more.) Here is the Appeal: ===================================================================== STAMP: ================================ CLERK'S OFFICE COURT OF APPEAL--SECOND DISTRICT RECEIVED MAR -3 2000 JOSEPH A. LANE Clerk ================================ Stephen Mitchell c/o 12400 Ventura Blvd. #137 Studio City, California 818-789-6403 Kathleen Carey c/o 5152 Sepulveda, Suite 205 Sherman Oaks, California 818-789-0954 Stephen Mitchell, Kathleen Carey In propria persona [NOT PRO SE] California Court of Appeal Second Appellate District Stephen Mitchell; Kathleen Carey ) Appellants/Plaintiffs, ) ) vs. ) ) CHURCH OF SPIRITUAL TECHNOLOGY, ) a corporation, dba L. Ron Hubbard Library; ) Respondents/Defendants. ) _____________________________________________) 2 Civil 131378 Appeal from superior court, Los Angeles county Case No. BC175367 Frances Rothschild, judge Real Party In Interest: Church of Spiritual Technology Opening Brief Oral Argument Requested Appeal after Dismissal This appeal is brought to seek relief and remedy from an abuse of judicial discretion and judicial bias against Us, both individually and as a class as nationals. The trial court refused to recuse itself after personally hearing the plaintiffs' Motion to Disqualify, in violation of CCP 170.3(c)(5). All of the trial court's subsequent rulings demonstrated a personal agenda on it's part to deny the recognition of Our status, our venue, Our rights under the Statutes of California as well as due process in this civil litigation. Furthermore, the trial court practiced law from the bench by advising the Defendant CST on how to seek relief from default and, at times, would find for the Defendant CST in absence of any argument or evidence to controvert the evidence and law submitted to the trial court by Us, thereby advocating for a defendant who would not or could not advocate for themselves. Ultimately, the trial court issued a judgment of dismissal as a sanction for a discovery controversy that it, itself, helped to create. Preliminary Statement This civil action stems from the fact that We discovered that the Church of Scientology had been infiltrated and subjected to a silent "coup d'etat" by men wishing to do away with Scientology yet maintain the perception of its continued existence. New corporations, and particularly one founded by Meade Emory who was formerly the Assistant to the Commissioner of the Internal Revenue Service during the years 1975-1977, were formed to facilitate the "gutting" of Scientology texts (Hubbard Communication Office Bulletins) and policies (Hubbard Communication Office Policy Letters) and the implementation of an overlay of new policies (known as Scientology Policy Directives). Furthermore, these new corporations removed books written by L. Ron Hubbard from the marketplace and replaced them with books that masquerade as L. Ron Hubbard writings. Per the genuine policies within Scientology (HCOPLs), these actions constitute "HIGH CRIMES", the penalties for which would be permanent exclusion from the Church. But since these acts were carried out at the highest level of management and in a covert manner designed to avoid public perception, they went largely unnoticed. We did, however, take notice and began writing reports to the Ethics Division of the Church in an attempt to correct the ongoing policy violations that We were witnessing. In response to these numerous written reports, the Church of Scientology--now under the control of the Church of Spiritual Technology, dba L. Ron Hubbard Library (founded by Meade Emory of the Internal Revenue Service)--issued written statements through the mail labeling Us as criminals and using copyrighted photographs displaying Our likenesses without permission. We believe that this was an act of desperation to discredit Us and to avoid public awareness of the fraud that was being committed each time Scientology texts bearing the copyright "L. Ron Hubbard Library" were sold to the public. For example, the book "Scientology: A New Slant on Life" by L. Ron Hubbard, previously bearing the copyright "L. Ron Hubbard", has been rewritten by Church staff members and reissued with a new ISBN number and the copyright "L. Ron Hubbard Library". The new title is "Scientology: A New Slant on Life by L. Ron Hubbard" giving the appearance of being the original book. However, notice that the words "by L. Ron Hubbard" have now been incorporated into the title and do not constitute an attribution. The new and different nature of the reissues is confirmed by copyright and Library of Congress documents. We believe that this subterfuge is intentionally fraudulent as We are informed and believe that the rank and file Scientologist would not spend money on "Scientology" books were it to be disclosed that they were not, in fact, written by L. Ron Hubbard, but rather by employees of Meade Emory's corporation or licensees thereof. Therefore, the value of these new products relies on the public perception that they were, in fact, written by L. Ron Hubbard and not employees of a former-IRS official. We Believe that the libel alleged in Our lawsuit was undertaken to protect the parties responsible for creating a fraud involving millions of dollars. We therefore have alleged that the libel was undertaken with actual malice towards Us and in complete disregard for the facts. The Trial Court Violated the Law With Regard to the motion to Disqualify We filed a Motion to Disqualify (see Clerk's Transcript [hereinafter CT] page 000156) on November 12, 1997. The motion was supported by a verified statement of challenge (see CT page 000158). The motion to Disqualify specifically alleged that by its actions taken on November 4, 1997 in Department 28 of L. A. superior court, the trial court demonstrated that it was prejudiced against Us (see CT page 000157, lines 2-4). The verified challenge specifically alleged prejudice against Us. CCP [Section]170.1(a)(6)(C) expressly states, "Bias or prejudice towards a lawyer in the proceeding may be grounds for disqualification." This would, of course, also apply to Us as plaintiffs in propria persona. CCP [Section]170.3(c)(1) states in pertinent part, "The statement shall be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification." The "earliest practicable opportunity" came eight (8) days after our first appearance before the trial court for a status conference on November 4, 1997. Yet, the court denied the Motion to Disqualify as being "untimely" (see CT page 000167, 14). It can clearly be seen in the content and context of the Motion to Disqualify (see CT page 000156-000157) that it was a disqualification for cause. The fact that We mis-titled it as a "peremptory challenge" rather than a "disqualification for cause" does not change the context of the motion, nor that prejudice and bias as cause was alleged. When the transcript for that hearing is reviewed (see RT pages 0010-0018), even the oral argument makes it clear that Our intention was a disqualification for cause. Yet the trial court took advantage of Our inadvertent error and characterized it as 170.6 instead of "for cause" so it could be denied as untimely rather than being dealt with according to CCP [Section]170.3(c)(5), which states: "No judge who refuses to recuse himself or herself shall pass upon his or her own disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a party. In every such case, the question of disqualification shall be heard and determined by another judge agreed upon by all the parties who have appeared or, in the event they are unable to agree within five days of notification of the judge's answer, by a judge selected by the chairperson of the Judicial Counsel... ." Notwithstanding the express procedural provisions of CCP [Section]170.3, the trial court violated the law by ruling on the motion itself rather than allowing another judge to decide on the disqualification. We are aware that per CCP 170.3(d) a writ of mandamus is the exclusive remedy for a disqualification controversy. If Our Motion to Disqualify had been properly heard by another judge and still subsequently denied, We would agree that the remedy would have been by writ of mandamus only. But in this case, where the content and context of the Motion to Disqualify makes it clear that it is meant to be a "disqualification for cause", the trial court was bound by CCP 170.3(d) to refer the matter for hearing to another judge so that the allegation of prejudice and bias could be objectively addressed. Case law such as Guadalia v. Superior Court, 211 Cal.App. 3d 1156, and People v. Jenkins, 196 Cal.App. 3d 394, certainly do not expressly deal with this exact scenario, so it leaves it to this Court to decide as to whether this circumstance warrants a different look in light of the trial court's actual violation of law rather than merely questionable judicial discretion that should have been dealt with by writ of mandamus within the 10 day limit. Based upon the trial court's noncompliance with the express and unambiguous provisions of CCP 170.3(d), We now argue that each and every order and ruling issued by the trial court on or subsequent to November 12, 1997 must be disregarded as null and void. The balance of this opening Brief will disclose the evidence contained in the Record on Appeal that demonstrates that We were correct in interpreting that the trial court was specifically prejudiced against Us and consistently made rulings from November 12, 1997 up to and through March 8, 1999, that embodied that clear prejudice against Us. The following issues are presented as evidence of the trial court's motivation to ignore the allegation of prejudice contained in the Motion to Disqualify in order to deny it as untimely, so as to be able to remain in charge of the case and manipulate a conclusion adverse to Us. If this Court does not reverse the dismissal based upon the disqualification issue itself, we ask that the following issues be considered by this court as reversible errors in and of themselves, individually or collectively. The Trial Court Failed to Acknowledge and Clarify the Venue of the Courtroom The district court was changed to the superior court, effective February 4, 1880, by Stats 1880, ch. 4, Section 2, which states in pertinent part: "Sec. 2. The Superior Court of each county in this State shall, <<for all purposes,>> be considered the successor of the District, county, and Probate Courts thereof... ." [emphasis added] The balance of this Act of the legislature makes it very clear that "for all purposes" included the venue and jurisdiction of the formerly named district court. On the face of the original verified complaint (see CT page 000001), We expressly stated by means of footnote #1 that it was Our intention that the complaint be heard in a venue that was "concurrent and equivalent to the district court as created in the Constitution of the State of California of 1849... ". Additionally, We stated, as plaintiffs, that We were "living on the land in Los Angeles county, in California, one of the United States of America;" (see CT page 000002, lines 2-4). We are informed and believe that in the course of common events within the court system, when plaintiff(s) and defendant(s) are mere fictional "persons", whether they be natural, corporate or otherwise, that the superior court deals with them within its own fictional venue. We therefore, as a matter course, deemed it appropriate to seek assurance from the court that it was properly joining Us in the venue We specified. On November 4, 1997, We requested, for the record, a clarification of the venue of the courtroom. What we received, for the record (see Reporter's Transcript [hereinafter "RT"] page 0004, line 15 through 0005, line 4), from the trial court was silence on the issue, and its express refusal to clarify the venue. The transcript for November 4, 1997 makes it very clear that the trial court was expressly avoiding the lawful venue within which We intended to have Our case heard. The United States Supreme Court has ruled that it is treason to the constitution to refuse a rightful jurisdiction: "We have no more right to decline the exercise of jurisdiction which is given us, than to usurp that which is not given. The one or the other would be treason to the constitution." Cohens v. Virginia, 6 Wheat 264, 5 L.Ed. 257, 291. Therefore, a question that this Court must address is whether a judge elected to the bench of the superior court for Los Angeles county, on the land within the boundaries of California, one of the united states of America, has any lawful authority to refuse or decline that lawful venue and usurp Our case into some fictional venue. We are informed and believe that no judge has such authority. As "nationals" of California, and each of Us being one of the people of California, We do have standing to declare and demand the common law venue that is "on the land" within the boundaries of California. The trial court's refusal to acknowledge our venue is not only a verification of its prejudice against Us as we have alleged herein, but is an issue in and of itself worthy of reversal on appeal. The Trial Court Ignored Perjury Within the Substance of the Motion to Quash Service Re: Defendant David Miscavige A Motion to Quash Service of Summons was filed September 23, 1997 on behalf of the Defendant David Miscavige. That motion was heard on November 25, 1997 [1]. ==================================================================== [1] The extraordinary amount of time between the filing of the motion and the hearing date is due to the recusal of the originally assigned judge (see CT, page 000120), for reasons unknown to us, and the subsequent reassignment to the court to which this appeal applies. ==================================================================== The transcript for November 25, 1997 (see RT, pages 20-26) again embodies the complete and express refusal by the trial court to acknowledge the lawful venue on the land in Los Angeles county. Our Opposition to Motion to Quash Service of Process, filed November 21, 1997 (see Augment to Clerk's Transcript pgs 1722-1726, submitted March 1, 2000), contained information alleging perjury within the substance of the Motion to Quash. The subsequent release of the so-called "IRS Peace Treaty" or "Closing Agreement" pertaining to Scientology (see CT pages 001224-001304) confirmed Our allegations of perjury, not only on the part of David Miscavige, but personally on the part of counsel Monique Yingling who appeared at the Motion to Quash hearing on behalf of David Miscavige. Ms. Yingling is a signatory to the "Peace Treaty", which confirms that the location of service of process on David Miscavige was valid since it was served at the same location designated in the IRS document as the location for service of process for IRS notices to David Miscavige. The Motion to Quash, prepared in part by Ms. Yingling, falsely asserted otherwise. The trial court had a lawful duty to take notice of the allegations of perjury. The Reporter's Transcript pages 0020-0026 demonstrates that the trial court did not place any consideration upon Our opposition papers whatsoever. We are not aware of any requirement for papers opposing a motion to be accompanied by oral argument in order to be considered. The trial court's abuse of judicial discretion in refusing to place due consideration on the allegations of perjury with regard to the Motion to Quash Service of Summons is a verification of the court's prejudice against Us as we have alleged herein, and is also an issue in and of itself worthy of being given serious consideration by this Court. The Trial Court Gave Counsel for the Defendant Instruction Re: How to Got the Default Vacated The Defendant/respondent CHURCH OF SPIRITUAL TECHNOLOGY filed a motion to Quash Service of Summons on January 21, 1998 (see CT pages 000171-000179). We filed an opposition to said motion on February 9, 1998 (see CT pages 000201-000207). The Defendant/respondent filed a reply to our opposition on February 19, 1998 (see CT pages 000247-000250). Default was entered as to Defendant/respondent CHURCH OF SPIRITUAL TECHNOLOGY on February 2, 1998 (see CT pages 000185-000191). On February 9, 1996, Defendant/respondent CHURCH OF SPIRITUAL TECHNOLOGY filed an ex parte application to vacate default (see CT pages 000208-000226). Additionally We had filed a Request for Entry of Court Judgment (see CT pages 000192-000200). The Defendant/respondent CHURCH OF SPIRITUAL TECHNOLOGY filed an opposition to the default judgment on February 17, 1998 (see CT pages 000227-000246). On February 23, 1998, the trial court denied the Defendant/Respondent's motion to vacate default (see CT page 000251). The ruling stated, "The application of defendant Church of Spiritual Technology (CST) to set aside default is denied...", but the ruling did not stop there as it should have. The trial court went on to "practice law" from the bench, counseling the defendant/respondent to file a motion pursuant to CCP [Section]473. This is not only further evidence of the trial court's prejudice against Us, but a willingness to openly become an advocate for the defendant/respondent. Then the trial court performs a very perplexing action. On the one hand, it states that a demurrer having been sustained as to another defendant did not relieve Defendant/respondent CHURCH OF SPIRITUAL TECHNOLOGY of its obligation to answer the complaint. Yet on the other hand, in the same minute order, denies the Entry of Default Judgment based upon the complaint having had a demurrer sustained as to another defendant (see CT page 000251). The trial court's abuse of judicial discretion in openly becoming an advocate for the defendant/respondent is not only a verification of the court's prejudice against Us as We have alleged herein, but is an issue in and of itself worthy of a reversal by this Court. The Trial Court Intentionally Misstated and/or Mislead Us with Prejudicial Rulings When the trial court sustained the demurrer as to Defendant MIKE RINDER, it stated in its ruling, in pertinent part, that the "...Plaintiffs must allege that they have not, in fact, violated the tax laws of any State or of the United States of America." (see CT page 000167). We did not amend the complaint as to Defendant MIKE RINDER. When the trial court sustained the demurrer as to Defendant/respondent CHURCH OF SPIRITUAL TECHNOLOGY on August 13, 1998 (see CT pages 000372-000374), it did not restate or reference the ruling from the prior demurrer (see CT page 000167). But when We did amend the complaint as to Defendant/respondent CHURCH OF SPIRITUAL TECHNOLOGY (see CT pages 000379-000507), We did recall the ruling on the first demurrer and took that ruling into consideration. We did, in fact, state in the First Amended Verified Complaint for Libel that: "The Plaintiffs declare that they have not, in fact, violated the tax laws of any of the several states or of the united States of America." (see CT page 000398, lines 5-7). When the trial court again sustained the demurrer of Defendant/respondent CHURCH OF SPIRITUAL TECHNOLOGY on December 4, 1998, the ruling stated: "The response of the Plaintiffs, when asked by the Court whether the phrase "several states" and "united States" using a lower case "u" have some meaning different from the "State of California" and the "United States", made clear that Plaintiffs' reference to the tax laws of the several states or the united States" [sic] is meant to describe something other than the California Revenue and Taxation Code or the Internal Revenue Code of the United States." (se [sic] CT page 001503). Let us take an analytical look at the trial court's ruling of November 24, 1997 (CT p. 000167) as compared to the statement from the amended complaint (see CT page 000398, lines 5-7). The trial court said "...tax laws of any State or of the United States of America". Where the trial court says "any State", what could that possibly mean if the court is not referring to the same "several states" as used in Our statement? In the federal constitution, the words "several states" clearly refer to the individual states joined as a union. On September 9, 1850, pursuant to 9 Stat 452, Congress stated that "...the State of California shall be, and is hereby declared to be one, of the United States of America..." When We used the words "several states", We were referring to the State of California that is "one of the united states of America", and any of the other 49 states that are all joined together in the union known as the united states of America. So when the trial court alleges that our use of the words "several states" necessarily means something other than the State of California, it raises a very important question: if, when the trial court refers to the State of California, it is not referring to one of the "several states", then what does the trial court mean by the words "State of California"? When We use the words "_u_nited States of America", We are referring only to the union of the "several states". The use of the lower case "u" is the manner in which those words were spelled in the Declaration of Independence. Those words were spelled "_u_nited _s_tates of America" in the original federal constitution. When they are spelled with all initial caps, "_U_nited _S_tates of America", it can only be construed as a spelling style change or a typographical error. It must be noted that in the 11-24-97 minute order (CT 000167) the trial [court] stated that "...Plaintiffs must allege that they have not, in fact, violated the tax law of any State or of the United States <<_of_America_>>". In the 12-04-98 minute order (CT 001502), the trial court states "Plaintiffs have failed to allege that they have not violated the tax laws of the states or of the United States". "Of America" has disappeared. With regard to all the above, it is significant when the "of America" is missing, since, for example, in 28 U.S.C. [Section]3002(15) (15) "United States" means-- * (A) a Federal corporation; * (B) an agency, department, commission, board, or other entity of the United States; or * (C) an instrumentality of the United States. The "corporate policy" of the federal government has no lawful authority within the boundaries of one of the "several states". The trial court's abuse of judicial discretion in openly playing with the semantics of words and blatantly changing the court's position based on those semantics, is not only a verification of the court's prejudice against Us as We have alleged herein, but is an issue in and of itself worthy of a reversal by this Court. The Trial Court Manipulated a Discovery Controversy The Defendant/respondent CHURCH OF SPIRITUAL TECHNOLOGY filed a Motion to Compel Production of Documents on August 11, 1998 (see CT pages 000511-000549). The demands were clearly overbroad and went beyond the scope of the cause of action raised in the complaint. Prior to the foregoing motion, one of the original plaintiffs, Lisa Jan Precious, abandoned the case on or about July 31, 1998 (see CT pages 000533-000536). We, the remaining plaintiffs at that time, and the appellants now seeking remedy, filed an Opposition to Defendant CST's Motion to Compel Production of Documents on August 20, 1998 (see CT pages 000550-000574). The Defendant/respondent CHURCH OF SPIRITUAL TECHNOLOGY filed a reply to our opposition on August 25, 1998 (see CT pages 000575-000582). The Motion to Compel was heard by the trial court on August 27, 1998 (see CT page 000583). The trial court granted the Motion to Compel without acknowledging or taking any apparent consideration of Our opposition whatsoever. We raised valid issues of law, that to this very day, remain uncontroverted by either the Respondent or the trial court (see CT pages 000553-000557). The fact that Our opposition was not taken into consideration in any manner makes the imposition of monetary sanctions particularly egregious. On September 8, 1998, We filed an ex parte application for a Written Statement of Decision Disclosing Lawful Foundation with regard to the Minute order dated August 27, 1998 (see CT pages 000586-000602). The ex parte application was denied without explanation (see CT page 000603). To this day, there is no record of any disclosure of lawful foundation for the trial court's ruling on August 27, 1998. The trial court appears to believe that it can do as is pleases and is not required to disclose any lawful foundation for its actions. On September 11, 1998, the Defendant/Respondent CHURCH OF SPIRITUAL TECHNOLOGY filed a demurrer. Between September 25, 1998, and October 5, 1998, the Defendant/Respondent CHURCH OF SPIRITUAL TECHNOLOGY filed a massive volume of papers, the majority of it merely duplicating the existing record (see CT pages 000678-000810). Within these pages are included Our responses and oppositions to the Defendant/Respondent CHURCH OF SPIRITUAL TECHNOLOGY's flurry of papers, We do not wish to complicate this brief beyond what is necessary and therefore We leave it to the discretion of this court to determine what, if any, of the foregoing is relevant to the issues raised in this appeal. The key issue is to look at and analyze is [sic] the trial court's Minute Order dated October 15, 1998 (see CT pages 000821-000823). We hereby request that this Court take notice of the literally impossible position that this prejudicial ruling placed on us as plaintiffs as follows: Minute order: 2)a) Demands 1 and 2: Plaintiffs' responses are inadequate under CCP Section 2031(f)(2) (see CT page 000821 and CT pages 000518-000519). Our position: Any of these documents that may have existed were not in Our possession, and the remainder simply do not exist. We cannot produce documents that do not exist. For the trial court to dismiss as a sanction for failure to follow this court order is extremely prejudicial and biased. Minute Order: 2(b) Demand 4: Plaintiffs' responses are inadequate (see CT page 000821 and CT page 000519. Our position: From the original Verified Complaint through and including the last papers we filed in this matter, we have clearly identified ourselves as being "nationals" pursuant to the Nationality Act of 1940, 54 Stat. 1137 [Section]101(a) and 8 U.S.C. [Section]1101(a)(21). Neither the trial court nor the Defendant/Respondent CHURCH OF SPIRITUAL TECHNOLOGY have ever questioned or attempted to controvert this fact. It is a matter of law that: "...there is a <<citizenship of the United States>> [2] and a <<citizenship of state>> [3], and the privileges and immunities of one are not the same as the other <<is well established by the decisions of the courts of this country.>> The leading cases upon the subjects are those decided by the Supreme Court of the United States and reported in 16 Wall. 36, 21 L.Ed. 394, and known as the Slaughter-House Cases." (emphasis added), K. Tashiro et al. v. Jordan, 256 P. 545, 201 Cal. 239, 53 A.L.R. 1279, affirmed 49 S.Ct. 47, 278 U.S. 123, 73 L.Ed. 214, 14 C.J.S. Sec. 2, p.1131, N. 75 (1927) ============================================================= [2] The "national of the United States", 54 Stat 137 [Section]101(b). [3] The "national", 54 Stat 137 [Section]101(b). ============================================================= Therefore, it is a matter of law that there are two distinct classifications of citizenship in this country, with each having a uniquely different set of "privileges and immunities". There is no foundation of evidence of any kind within the Record on Appeal that would establish that We are required by any law to have and maintain such documentation. For the trial court to have ordered that we produce documents which do not exist, creates a legal impossibility. For the trial court to dismiss as a sanction for failure to follow a court order which cannot be followed since no such documents exist, is extremely prejudicial and biased. Minute Order: 2) c) Demands 5, 6, 7, and 8: The Court previously ordered Plaintiffs to respond without objection. Accordingly, they may not now object on the grounds of relevance, Further, the fact that the entities referred to are not parties to this action is of no import (see CT pages 000821-000822 and CT page 000519). Our position; Are We to believe that any and all "irrelevant" material can be demanded on discovery and must be turned over without regard to relevancy? The trial court cited no decisional law in support of the order. Here again, it is a fact that there is no foundation in the Record on Appeal demonstrating any evidence that the Defendant/Respondent CHURCH OF SPIRITUAL TECHNOLOGY has any lawful right to demand unlimited information with regard to entities that have not been shown to have any relevant connection to the cause of action. For the trial court to dismiss as a sanction for failure to follow an unlawful order is further evidence of the trial court's prejudice against Us, and is therefore worthy of consideration by this Court for reversal. Minute order: 2)d) Demands 9 and 10: Plaintiffs' responses are inadequate under CCP 2031(f)(2) (see CT page 000822 and CT page 000519). Our position: We have no such documentation. The Record on Appeal is devoid of any foundation to demonstrate any evidence that such documents exist. For the trial court to dismiss as a sanction for failing to produce documents that do not exist is further evidence of the trial court's prejudice against us, and is therefore worthy of consideration by this Court for reversal. Minute Order: 2)e) Demands 11 through 15: Plaintiffs' responses are inadequate under CCP 2031(f)(2) (see CT page 000822 and CT page 000519-000520). Our position: What is the "Veritas movement" or "Public Research Foundation"? We are not affiliated with nor do We have any knowledge of any such "movement" or other organization. There has existed a website entitled "Veritas" which was at one time brought to Our attention. Apparently someone believes that this case deserved some public attention and placed copies of court documents from this case on that website. We did not post any documentation on the Internet. We have not knowingly ever communicated with whomever might be responsible for this website. The documents on that website are publicly available to anyone who cares to obtain copies. Postings made by others on the World Wide Web are outside of our responsibility and control. For the trial court to dismiss as a sanction, again for Our failure to produce documents that do not exist, is clear evidence of the trial court's prejudice against Us and is worthy of consideration by this Court for reversal. Minute Order: 2)f) Demands 16 and 17: The Court has previously Ordered Plaintiffs to respond without objection. Further, no privilege exists for the subject communication. (see CT page 000822 and CT page 000520). Our position: No such written documentation exists. Any documentation which might in some way fit these demands is already a part of the record in this matter. We therefore have no such documentation subject to a discovery demand. For the trial court to dismiss as a sanction, again for our failure to produce documents that do not exist, is clear evidence of the trial court's prejudice against Us and is worthy of consideration by this Court for reversal. Minute Order: 2)g) Demands 18 and 19: Plaintiffs' responses are inadequate under CCP 2031(f)(2) (see CT page 000822 and CT page 000519). Our position: No such documentation exists. For the trial court to dismiss as a sanction, again for Our failure to produce documents that do not exist, is clear evidence of the trial court's prejudice against Us and is worthy of consideration by this Court for reversal. Minute Order: 2)h) Demand 20: Plaintiffs' responses are inadequate under CCP 2031(f)(2) (see CT page 000822 and CT page 000519). Our position: Again, as far as We are aware, no such documentation exists. We have not gone about "documenting" each and every communication We ever had concerning the issues raised in this matter. For the trial court to dismiss as a sanction, again for our failure to produce documents that do not exist, is clear evidence of the trial court's prejudice against Us and is worthy of consideration by this Court for reversal. In summary, the Minute Order of October 15, 1998 attempted to place impossible demands upon Us. We believe that this was an intentional manipulation to create a circumstance where the trial court could make it appear that We were refusing to cooperate with discovery to justify a dismissal as sanction. We believe that this "discovery controversy" was orchestrated by the trial court so as to justify a dispositive sanction. In so doing, a finding based on the merits of the case (the rights and immunities of the national vis-a-vis those of the national of the United States) is neatly avoided. Because of the impossible demands, We filed a Motion to Stay Defendant's Discovery on October 29, 1998 (see CT 001169-001181). That motion can be summed up by the statement made at a hearing on November 6, 1998 (see RT page 0083, lines 3-7) where it was stated: "...therefore to allow discovery to take place prior to [the Defendant/respondent] filing an answer would muddy the waters and make it very difficult to adjudicate at the time of trial what facts were in possession of the Defendant at the time this publication was published and disseminated." Having made the foregoing argument, the following then took place at that same hearing just a few moments later (see RT page 0084, lines 4-8): The Court. "...Now you have a motion to stay discovery that--had you set that for some date? Ms. Carey: December first. The Court: Maybe we should take that off calendar because we really have an agreement here." It is now apparent that, due to Our inexperience in dealing with a shrewd and manipulative judge, we quite naturally believed that "we had an agreement" [meant] that the defendant/respondent's discovery was put off until January 1999 as requested by Us in Our Motion to Stay Discovery (see RT pages 0078-0086). When the trial court issued its ruling on December 4, 1998 (see CT pages 001502-001504), the dismissal as a sanction for noncompliance with court orders of 8-27-98 and 10-15-98 came to Us as a shock, having believed that We had "an agreement" that discovery was stayed until after the court issued a ruling on the demurrer. The Demurrer For the trial court to sustain the demurrer of defendant/respondent CST in this case is to construe out of existence the national. At no time did the defendant/respondent CST controvert our evidence and claims to that status and the trial court has been notably silent on any issue pertaining to the rights and immunities of, or even the venue and jurisdiction pertaining to, the national. For the trial court to ignore the status of the national, along with the rights and immunities pertaining to same, renders that status legally moot and theoretical, thereby making the status of national of the United States (per the 14th Amendment) the only legal possibility and not a voluntary status in fact. For the trial court to take this view is a violation of the 13th Amendment, seemingly with the intent of steering every American into the indentured status of a national of the United States in favor of that corporation's creditor(s). We hold that for the status of the national of the United States to exist without conflict with the 13th Amendment, the status of the national must be a real, practicable and recognized status. The trial court's failure to recognize, and deal with Us, as nationals in the absence of any allegation, fact or evidence to the contrary is, in and of itself, reversible error. The Demurrer is Actually An Answer "A demurrer tests only the legal sufficiency of the allegations. It does not test their truth, the plaintiff's ability to prove them or the possible difficulty in making such proof." Saunders v. Superior Court, 27 Cal.App.4th 832, at 840. Yet the demurrer of defendant/respondent CST advocates vociferously on behalf of the defendant/respondent, arguing against the allegations in Our Complaint and addressing the causes of action point by point. The demurrer filed by defendant/respondent CST does not, in fact, constitute a demurrer but rather an answer which lacks evidence and facts and provides only rhetoric and seemingly addresses a phantom complaint. Therefore, since the demurrer was a demurrer in name only, it should not have been sustained and this, in and of itself, should be considered reversible error. Conclusion We believe that the Record on Appeal demonstrates that the trial court assisted in manipulating the events to bring about the appearance of the non-compliance with court orders in order to allege dismissal as a sanction. We hold that this was done because the sustaining of the demurrer alone was too weak to ensure that the case would ultimately be suppressed. We believe that the Record on Appeal also shows that the sustaining of the demurrer was only possible as a result of the trial court's use of twisted semantics and meanings of words rather than basing it upon a valid lawful position (e.g., United States/United States of America). Therefore both the sustaining of the demurrer, and the dismissal as a sanction, were abuse of judicial discretion and embody an express demonstration of prejudice and bias against Us without regard for the facts in support of the cause of action and despite the fact that the defendant/respondent never refuted or controverted the existence of nationals or Our status as such. The overwhelming consistency to the prejudice and bias against Us, in and of itself, gives Us pause as to there being some definable motive behind it all. Is it due to the trial court's need to protect a self-interest related to involvement in legislation (see CT pages 000595-000597)? Or is it due to a realization by the trial court that Meade Emory's interest in the reconfiguration of Scientology through his corporation may not have been personal at all, but in fact was on behalf of parties within or working in the interest of the United States government [4] and that the trial court chose to protect those interests? =================================================================== [4] 20 C.J.S. [Section]1785 -- "The United States government is a foreign corporation with respect to a state." In Re Merriam 36 N.E. 505, 141 N.Y. 479, affirmed 16 S.Ct. 1073, 183 U.S. 625, 41 L.Ed. 287 =================================================================== So, let us not forget that the trial court manipulated the content and context of the Motion to Disqualify and violated CCP [Section]170.3(c)(5) by ruling on the motion rather than passing it to another judge as is required by CCP [Section]170.3(c)(5). The dismissal as a sanction must be reversed. The sustaining of the demurrer must be reversed and remanded back with instruction to order the Defendant/Respondent CHURCH OF SPIRITUAL TECHNOLOGY to answer the complaint. We would also request that this Court use its discretion with regard to CCP [Section]170.1(c) and order that the matter be remanded to Department 1 for reassignment to a superior court judge that is capable of handling the case in an impartial manner as required by law and judicial ethics. Respectfully submitted this third day of the third month, in the year A.D. two thousand. _[L.S.]_______[signature]_____________seal_ Stephen Mitchell _[L.S.]_______[signature]_____________seal_ Kathleen Carey |