The Riverside (Hoden) transcript
Author: Keith Henson
Date: 1998/03/20

Boy, do I have a treat for you! This is the hearing where Judge Stephen Cunnison grilled a few clams. Just got it this evening. It was in some format I have never seen before, so getting it to ascii where could post it took some time, and I had to type a few lines in which vanished in the conversion process. Still, it is in upper/lower case, which makes it a lot eaiser to read. Thanks to Katherine M. Gunn for the fine transcript work.

Keith Henson

PS Judge Cunnison is one of the few Judges who seems to have a handle on abuse of the law.

(PPS, if you enjoy it, please consider sending a few bucks to Graham or me to cover costs. Graham's address is Law Offices of Graham E. Berry, One Wilshire Blvd, 21st floor, Los Angeles, CA 90017-3383 and mine is Box 60012, Palo Alto, CA 94306. If there is interest, I will get someone to put up a website where you can use credit cards for donations.)

THE COURT: Hoden versus Henson.

MR. SCHULTZ: Charles Schultz of Reid & Hellyer representing plaintiff Ken Hosen.

MR. MOXON: Kendrick Moxon also representing Mr. Hoden.

MR. BERRY: Good morning, Your Honor. Graham Berry representing defendant H. Keith Henson.

THE COURT: All right. This is Reverend Hoden?

MR. HODEN: (Raised hand.)

THE COURT: How about coming over here, or that's fine.

And, Mr. Henson?

MR. BERRY: Mr. Henson is here, Your Honor.

MR. HENSON: Yes, Your Honor.

THE COURT: Reverend Hoden, Mr. Henson, please stand, face the clerk and be sworn.

MR. SCHULTZ: Your Honor, we do have other witnesses that may be testifying as well. Do you want them to be sworn?

THE COURT: No, just these two.

MR. SCHULTZ: Thank you.

THE CLERK: You do solemnly swear that the testimony you shall give in the matter now pending before this Court, will be the truth, the whole truth and nothing but the truth, so help you God?

MR. HENSON: I do.

MR. HODEN: Yes.

THE COURT: Counsel, I'm going to begin the questioning and I'll allow you to follow up after I do so.

MR. BERRY: Your Honor, there is the matter of motion to dismiss we had on calendar.

THE COURT: I will take that up afterwards.

KENNETH HODEN, called as a witness herein, having first been duly sworn, was examined and testified as follows:

EXAMINATION BY THE COURT:

Q. Reverend Hoden, you're employed at Golden Era studios in San Jacinto; is that right?

A. Yes, I am.

Q. Do you also live there?

A. I actually live in Hemet, sir.

Q. All right.

A. Working over there.

Q. And Mr. Henson showed up at your facility one day?

A. Yes. He actually showed up two different times. One was in May of 1997 and then this year in January, sir.

Q. All right. And you were there both times?

A. Yes, I was.

Q. What did he do in May of 1997?

A. At that time --

Q. And I'm asking you now what you personally observed not what somebody told you or anything like that, what did you see?

A. I saw him on the street with a sign that was attached to a pool cue. He was walking along beside in the turning lanes on the Highway 79, which actually goes through the center of our property. At that time he was walking in and out of lanes. It -- there was another person with him, and he was there for maybe, that I at least saw, maybe about 15 minutes, sir. He was there before I walked out to the street, but that was how long I saw him there.

Q. Did you speak to him?

A. No, I did not.

Q. Did he come on any portion of the property of Golden Era studios on that occasion?

A. He walked in front of -- we have a booth where we go into the studio grounds, he was walking in front of that where traffic would come in and out. A lot of times he would just stand there, sometimes he would move down the street and walk into the roadway, just generally go back and forth. There was loud voices between him and somebody he was talking to. I couldn't make out everything they were saying. All I know there was a bit of disturbance, that's why I went out to see what was going on. Shortly after I got out there he left.

Q. There's a driveway into the studios?

A. That's correct.

Q. Would that be on the easterly side of the road or westerly side of the road?

A. The road goes east and west, so there is a driveway south coming into the property, sir, as you drive through Gilman Hot Springs. You know, where the old -- the canyon is, I don't know if you were out --

Q. I've been on that highway, it always -- well, my directions are --

A. Okay.

Q. Let me ask you this: When you refer to the south side, are you talking about the side toward San Jacinto River?

A. That's correct.

Q. All right. The north side would be up the hill?

A. Where the mountains are.

Q. Okay. And this driveway goes in which side?

A. We have a driveway that goes to the mountain side as well as to the river side.

Q. I'm talking about the one you mentioned where there is an entry point where Mr. Henson was.

A. That was the river side, sir.

Q. All right. So that -- and is there fencing along the south side?

A. Yes.

Q. Is there a gate across the driveway on the mouth side?

A. Yes. It's indented a little bit so cars can pull in, a little bit of room for stacking of one car.

Q. Did Mr. Henson ever cross the extension of -- if you were to draw an imaginary extension of the fence line across the driveway, did he ever cross that imaginary line?

A. I did not see him do that.

Q. All right. On January -- in January of 1997, he was there again?

A. Yes.

Q. What did you personally see?

A. At that time I went out because I was -- I got a telephone call saying there was somebody walking on the street, actually two men. I don't know the name of the second person, but I know Mr. Henson was one of those people. I went out to find out what was going on because prior to that I had made some calls just to find out who this gentleman was because I didn't know, and after the call was made, after he was out there in May of the preceding year, I called L.A. to our offices --

Q. Reverend Hoden, I'm asking what you saw --

A. I'm sorry.

Q. -- in January of 1997, not what somebody else told you, just

A. He was walking in the lane of the highway, so I went out there and I tried to find out what was going on. I says do you have a problem because -- is there some sort of difficulty. I said this is an area of the road cars sometimes go up to 70 miles an hour, it is a little dangerous. And he just kept walking past me with this other person, just totally ignoring me completely. And I went over to him and I said, listen, you know, this is not a safe place to go. If you want to demonstrate I just suggest you go down the road or over this way here.

We ourselves have had to install two tunnels under the highway because it is not safe for people to cross the highway there. That was part of our conditional use permit. I says if you want to demonstrate, I don't know what your beef is, or what your problem is, I have never done anything to you, I have family here. I don't understand what the problem is, you want to talk about it. He just totally ignored me at that point in time.

He continued walking down in front of our entry to the property and then walked out into the street he was walking down, at which point in time I started to get a little bit upset because I didn't -- no matter how I would try to talk to them or questions I would ask him, I would get absolutely no response. There was cars coming in that way. They were weaving a little bit in and out. I knew that we can't even walk out in the street without getting a permit because we have a permit to clean the property, adopt the highway thing --

Q. Let's stick to what you observed on that occasion, not whether you can get a permit, just what you observed on that occasion.

A. Okay.

Q. Go ahead.

A. At which point in time I walked a little bit further down, and finally he says, what do you want. In other words, what is it that you want. I says it's not safe here, go down there. At which time he turned around, started to come towards me. The other gentleman that was with him came around behind me. He had a stick. His eyes were darting back and forth. He started saying that I'm out here to destroy your religion, your religion. You people are just a bunch of cockroaches. You -- something about the effect that some Druid, something or other, something to do with Druid religion, and that the best thing that could happen to Scientology is just have it totally wiped out completely, and I'm here to basically accomplish that effect.

At which point in time he darted across the street, went over to the hill side of the street, at which time there was a bus coming by with a car in front of it. They had to swerve out of his way. I went over and again I told them both, this is a very dangerous place to be. I says if you want to demonstrate, I don't have a problem, but here I have a big concern because of your past and that sort of thing because of your -- You read all the papers, you know what I knew.

At least at that point in time -- My major concern at that point in time was that he didn't hurt anybody, and I personally do not have a problem if he demonstrates. One, it's just not a safe place, and, number two, I have a responsibility to protect the people there. Either, one, that somebody doesn't walk out and see somebody calling their religion a cockroach religion or something like that. Sometimes people get emotional about that. Number two, there's been times in the past where things have happened which aren't very, very good. And, you know, I am supposed to be telling you what I said to him, but these are -- this is my frame of mind when I went out there.

At the point -- at that point in time they both got on both sides of me again, and we had moved a little bit further away from our booth area, so I was kind of alone with them. At that point in time I didn't feel a hundred percent safe as to what I should or shouldn't do. My major purpose was to get them down the road, further on down the road safe at which point in time when they walked that far down I then left them and came back to the property.

Q. That concluded the encounter?

A. I don't know if I can remember everything he said and I said but that was generally what happened.

Q. Was anyone else present other than you, Mr. Henson and this other individual you could not identify during any of those transactions you just described?

A. Yes. There was another person across the street at a distance, one of our security personnel that was just watching from a distance.

Q. What's his name or her name?

A. Ken Campman. And I told him to stay there because what I didn't want was a fracas. I just wanted to see if I can get the communication with him try to solve this problem.

Q. Is Mr. Campman here today?

A. No, he's not. He was at a distance.

Q. Okay. Anything else you want to tell me about what occurred, not what you were thinking about --

A. I understand.

Q. -- what occurred during the May encounter or the January encounter?

A. Well, the one in May, part of my job responsibility is to talk to a lot of people in terms of if they have any upset at all with us. It's something we're used to talking to people. Usually I can get communication with somebody and try to establish some sort of understanding of what your problem is and help to solve that problem. I was looking at a man who, one, from the way he talked to me and the way he acted had no intention of trying to solve any problem. There is no way I could address any of his grievances. The only thing that he would have been totally satisfied with is to have our entire complex destroyed and burned.

And what I looked at is a -- at one point in time when eventually I says, what is it that you want, just trying to get his attention because I started to get a little upset. He came up towards me, he was in my face and his eyes are darting back and forth, his veins are popping out on his neck, at which point in time I then got a little bit frightened. I said I don't think I can control this man just with communication. At which point in time I -- my major concern from that point forward was to get him into an area where, one, he didn't distract anybody on the highway, didn't hurt me, and I could quickly get back. And I figured I would just call the police and have them deal with it, which is what I did then do.

By the time they came he had already left, and they suggested, he just told me based upon the history of Alcors and all the different things, he says what you should do is just go to the court, explain all the facts to them and perhaps they can help sort this problem out.

THE COURT: All right. Thank you, sir.

THE WITNESS: Yes, sir.

THE COURT: Mr. Schultz --

MR. BERRY: Your Honor --

THE COURT: -- you're required to demonstrate that -- What?

MR. BERRY: Sorry, Your Honor.

THE COURT: Mr. Schultz, you're required to demonstrate that the defendant engaged in a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys or harasses that person and which serves no legitimate purpose.

The contact, the immediate contact between your client and Mr. Henson was initiated by your client. Mr. Henson whether safely or unsafely was in a public thoroughfare. I'm not faulting your client for going out and seeing what's wrong, but it seems to me the idea that Mr. Henson violates this statute by being in a public thoroughfare carrying a sign, even reacting angrily when he's approached, none of that violates this statute.

Would you like to address that?

MR. SCHULTZ: If I may, Your Honor.

THE COURT: Go right ahead.

MR. SCHULTZ: What the facts will show, and we have basically three witnesses that we want to call --

THE COURT: All right. Well, let's just stop here, and rather than just generalize about what the facts will show, I want you to make me a very detailed and specific offer of proof; namely, the witness and then tell me in detail what each one of those witnesses is going to say.

MR. SCHULTZ: Your Honor, at this point let Mr Moxon respond to that request right now.

THE COURT: Very well. Mr. Moxon, would you make me a detailed and specific offer of proof separately as to each of the three witnesses.

MR. MOXON: Yes, Your Honor. We intend to call the defendant Keith Henson.

THE COURT: What will Mr. Henson testify to?

MR. MOXON: Mr. Henson will testify that for a number of years he has been involved in a course of conduct with respect to harassment of any person who happens --

THE COURT: No, he won't. I won't let him testify to that because that would be a conclusion. Now, you might ask him about what happened in May of 1997 when he was at Golden Era studios, and in January of 1997 -- 1998 when he was at Golden Era studios, and if his testimony were not already cumulative to what Reverend Hoden had testified to, then I might let him testify to that. What do you expect him to testify to that would be different from what Reverend Hoden testified to?

MR. MOXON: I expect him to testify that he came there with the intention not of demonstrating, he came there with the intention of harassing, annoying and disturb --

THE COURT: That would be a conclusion of law and I would not permit that testimony, Mr. Moxon, from the defendant to conclude why he was there.

MR. MOXON: The evidence will show that Mr. Henson came there with the intention and in fact effected that intention of harassing and annoying whoever came to see him.

THE COURT: That's just argument. He might have gone there with the intention to carry a sign. He might have, I don't know, with the intention of beating Reverend Hoden over the head with a pool cue, that I don't know. But he did not go there with the intent to harass because that's a conclusion of law. People don't go around with the intention of harassing. The go around with the intention to do very specific things

Now, if you expect in good faith, sir, that Mr. Henson is going to testify to what his intentions are, then you tell me what specifically you expect that he's going to testify to, and if it's relevant I'll allow you to call him as a witness and you can go right ahead and examine him. But he's not going to testify that he was out there in order to violate Code of Civil Procedure Section 527.6, that is not going to happen here.

Go right ahead, Mr. Moxon.

MR. MOXON: Mr. Henson has already stated that he was coming to communicate with scientologists, not coming at that exact time, but that he had a general plan to communicate with scientologists to goad them into acts which would cause violence, that was one of the things he was doing when he was there. He was in -- he came to goad violence against him. There already had been violence. The testimony will show that Mr. Henson is a violent man, and he is --

THE COURT: No, it won't. No, it won't.

MR. MOXON: The purpose, Your Honor, --

THE COURT: It won't show that because Evidence Code Section 1101 won't permit you to show that. That's why I'm asking you to be very, very, very specific about your offer of proof. Because, frankly, you know, you folks have handed me about a ton and a half of paper here, and these are intended to be summary proceedings. I'm not about to allow you to convert this into some kind of a show. If nobody else is going to enforce the rules of evidence, I will.

MR. MOXON: Your Honor, in fact we have our exhibit, we have about 20 exhibits that we're using --

THE COURT: I don't care how many exhibits you have. I'm telling you that I am going to enforce the rules of evidence.

MR. MOXON: Very good. Certainly I can appreciate that, and we came here with no --

THE COURT: Mr. Moxon, come on, you were going to make an offer of proof and that's where we are now. Let's get back to the offer of proof.

MR. MOXON: Mr. Henson --

THE COURT: Will testify as follows. Those are your words. Go right ahead.

MR. MOXON: Will testify as follows: That he has the ability first to cause vast destruction at the place where he was.

THE COURT: Come on, Mr. Moxon, everybody has the ability to cause vast destruction if they're so inclined.

MR. MOXON: He'll testify he is so inclined. He specifically said --

THE COURT: No, he won't. No, he won't.

MR. MOXON: He's already said that in writing, Your Honor, and he's already stipulated -- I don't know if the court has seen the stipulation of facts we've already provided.

THE COURT: It's not very helpful, and not only that but I see one party's initials, a whole bunch of changes but nobody else's, that's not very helpful.

MR. MOXON: All those parties signed that. The initials were only made by the person that made the changes.

MR. BERRY: No. Those were my initials as to the changes I made prior to Mr. Henson signing and prior to Mr. Hoden signing. I would have thought counsel may have put his initials as well.

MR. MOXON: Mr. Henson has specifically indicated he expects there to be a conflagration at the place where he came.

THE COURT: Okay.

MR. MOXON: He specifically has indicated that that's one of the intended effects of his activities and those of his group.

THE COURT: Okay.

MR. MOXON: He will testify the activity he was undertaking was undertaken not for the purpose that he's asserted in his papers, but for the purpose only of goading others into acts against him or acts to make them look ridiculous or others so a mob can burn them out.

THE COURT: Okay.

MR. MOXON: He will testify that he has attacked other persons similar to Reverend Hoden in the past.

THE COURT: No, he won't.

MR. MOXON: And during a prior --

THE COURT: No, he won't.

MR. MOXON: And part of his --

THE COURT: Reverend Hoden is the plaintiff in this case. If those other persons want to pay their $232 and file a petition, that's fine. Right now I'm concerned about Reverend Hoden and Reverend Hoden's petition only.

MR. MOXON: Your Honor, the code specifically indicates course of conduct such as would cause a reasonable person to suffer substantial emotional distress, must actually cause that. Part of that course of conduct is extremely important here because in the course of conduct of what he does when he comes to these things, he has assaulted persons. He --

THE COURT: Well, these things are -- these things are simply not of concern to me. It's this place, this person; all right.

MR. MOXON: Whoever the person is that is in front of him, if he believes he is a scientologist because it's Reverend Hoden's job to be there to protect himself and to protect others, he is going to be the target of this man. That's what I want to show as part of the course of conduct. He has attacked others. Not only does he have the ability to cause great harm, he has in fact attacked others. He's got a pool cue he uses as part of his sign and that he's brought out to that location, Your Honor, as part of the course of conduct he brought a pool cue with him.

Anyway, Reverend Hoden will testify further as to his serious emotional distress caused by the harassments and annoyance of this man based on not only what he did right when he came there, but what he did before he came as a part of that course of conduct because he had a number of writings --

THE COURT: Not observed by Reverend Hoden, correct?

MR. MOXON: Code doesn't require that Reverend Hoden observe those things, but in actual fact --

THE COURT: I'm just asking whether --

MR. MOXON: Yes, he observed the writings made by the plaintiff. He did observe those writings where there was very, very, very serious threats made. Very serious threats. That's part of -- those things were disseminated by Henson for the purpose --

THE COURT: Excuse me just a second. I left the file back on my chambers desk, you want to bring it to me. Thank you.

Go ahead.

MR. MOXON: They were disseminated by Henson for the purpose of having scientologists, including Reverend Hoden, read them and fear them.

THE COURT: All right. Specifically which are those writings?

MR. BERRY: If counsel is going to refer to exhibits, Your Honor, these are exhibits which I think have not been handed up to the court yet.

THE COURT: All right. I'm assuming that somewhere in here those exhibits must exist.

MR. MOXON: No, Your Honor. Exhibit books have not been provided. May I approach?

THE COURT: Sure. I'll get the defendant's in a moment. Let's just hold onto those.

All right. Mr. Moxon, give me the worst examples that you can come up with; all right.

MR. BERRY: Your Honor, should I make my evidentiary objections at this point?

THE COURT: This is simply an offer of proof. At the conclusion of the offer of proof, if I am inclined to permit the testimony, you may make your objections.

Mr. Moxon, what do you want me to look at?

MR. MOXON: Exhibit Number 7, a public statement by Mr. Henson posted to the internet. And I direct the court's attention to the second to the last paragraph on that page.

His reference, Your Honor, to "clams" is a derogatory reference to scientologists, that's what he means by that, that's what he'll testify. He says, quote, that's why we're out to, quote, break, end quote, the COS, the Church of Scientology. All these documents were read and considered by Mr. Hoden.

THE COURT: Uh-huh. Okay. And they were posted to the internet, correct?

MR. MOXON: Yes, Your Honor.

THE COURT: That was the way they were disseminated?

MR. MOXON: Yes. They were posted to the internet, a discussion group called alt dot religion dot scientology.

THE COURT: Okay.

MR. MOXON: Which is a group frequented by Mr. Hoden and some others.

Exhibit Number 15, another posting to the internet by Mr. Henson just before his first appearance at Golden Era studios. The last paragraph: "PPS, killing the organization off entirely is the best way to change the future of scientology."

THE COURT: All right. All right. Anything else?

MR. MOXON: Yes, Exhibit Number 9. First page, going over to the second page, Mr. Henson states, quote: "What amuses me slightly is that I can freely tell you the unspoken consensus game plan goading the Church of Scientology into action which will outrage an even larger number of people." At the bottom in his PS, he says: "Thank you for being a punching bag, and we of course are in training for a considerably larger event."

THE COURT: Are you referring to Exhibit 9? Because what you're reading doesn't appear on my Exhibit 9.

MR. MOXON: I apologize, Your Honor, it's Exhibit Number 8.

THE COURT: Okay.

MR. MOXON: Continuing over into the PS, right after the signature Keith Henson and "thanks for being a punching bag, we of course are in training for a considerably larger event. The Church of Scientology makes a nice, expendable sparring partner."

In Exhibit Number 9, second to the last paragraph, another public posting by Mr. Henson, says in the middle of it: "If the church does pervert justice, and it is a good bet they will with hordes of lawyers, then mob justice is not only the expected result but the healthy one."

MR. BERRY: I'd ask the entire paragraph be read, Your Honor.

THE COURT: It's not necessary. If that's what he intends to prove, that's what he intends to prove. If ultimately you want to put that evidence in, that's all right with me.

MR. MOXON: Exhibit Number 10, another public posting to the internet by Mr. Henson. States in the last section of it: "However, there are organizations which on the balance are so bad they must be destroyed as an organization. People who gave Gene Ingram his orders" -- Gene Ingram is an investigator -- "that kid of people on the Church of Scientology is on balance an organization which must go.

THE COURT: All right. Mr. Moxon, would it be fair to state that any additional things you might read are essentially of the same character?

MR. MOXON: No. Some of them are, some of them are not.

THE COURT: All right. Well, give me your worst three more examples and then we're done.

MR. MOXON: Exhibit Number 39. Mr. Henson is engaged in a discussion with another person on the internet as to what to do when a person representing the Church of Scientology comes to their home.

MR. BERRY: Objection, Your Honor, that is not apparent on the face of the document.

THE COURT: He's offering to prove it, we don't know if he will or not, but he is offering to prove it.

MR. MOXON: The other person says: "Aim for the head in case he has a bullet proof vest on." And Henson says: "Use a shotgun, keeps the holes in the neighbor's houses down."

Mr. Henson has already testified that the organization with which he's associated here in Riverside had a large cache of weapons, including military weapons, carbine rifles, military gear. These were available here in Riverside. I don't know at this point in time what's happened to these weapons. He stipulated to this, and I've got a document which is an investigative local report here concerning that, and also includes the fact that there are grenades in that cache of weapons here in Riverside, which goes to his ability.

MR. BERRY: Your Honor, he has not stipulated to that.

MR. MOXON: He's not stipulated to the grenades, he's stipulated to the other --

MR. BERRY: He's stipulated the offices were raided. He didn't stipulate he was involved in it.

THE COURT: Okay.

MR. MOXON: Exhibit Number 14 generally discusses a dispute that Mr. Henson had with the church. Near the bottom of the page of Exhibit 14 indicates that, talks about Infante. Infante is a federal magistrate who has enjoined Mr. Henson from various things in the case where Mr. Henson was permanently enjoined from violating copyrights.

MR. BERRY: Objection, Your Honor, mischaracterizes the injunction.

MR. MOXON: States Infante issued a bench warrant, we will see another Waco attempt, obviously in reference to a conflagration in Hemet which he has made reference to in other postings.

On the documentary -- that is the documentary evidence I have with -- I expect Mr. Henson just to testify about with respect to some of his specific courses of conduct and the fact that he's doing it not in the exercise of any first amendment right but solely because it's a game to him. He believes it's, quote, screamingly funny. It is a game to him to annoy, and annoyance is specifically part of the code, Your Honor. If he in the course -- this is all part of the course of conduct, and no where in this code section 526 does it indicate that the entire course of conduct must be directed at the individual. Where in this situation we have --

THE COURT: I'm sorry, Mr. Moxon, I don't think I can subscribe to that.

MR. MOXON: However, there is a -- well, I believe that's what -- all right. In any event there is in the code a requirement that there be something directed obviously at an individual. There was part of that conduct directed specifically at Mr. Hoden when he came, there was a threat to him, an annoyance to him with Mr. Henson coming on one side and the person he brought with him as apparent security, or for whatever reason, we are not certain yet why the other person came with Henson to Golden Era, coming around behind him, and Mr. Hoden -- Reverend Hoden felt he was threatened by this, and certainly he was annoyed and harassed in a fashion that caused serious emotional distress as indicated in the code.

And we'll put on Mr. Hoden to provide testimony concerning that distress and concerning that annoyance and concerning that harassment, and particularly concerning what he understood prior to going in and why it was justified for him to feel that way in light of the other attacks by Mr. Henson against other ministers, in light of Mr. Henson's statement on the internet, and in light of the fact that he has the ability, not only the ability, that he has acted to explode weapons and indicated it's part of his hobby right now is high explosives including explosives that would be big enough to level the properties at Golden Era Productions.

THE COURT: Okay.

MR. MOXON: We have another witness who will also testify as to the extremely unsafe conditions of that road and how Golden Era has been working for sometime, and Reverend Hoden has been working for sometime to try to protect himself and others because of the unsafe conditions of the road, including the amount of money spent to build a tunnel under the road, the over 190 accidents just on that stretch of road in the past several year, some of which have been very serious. Cars crashing right through exactly where the man was standing which caused a lot of distress.

The fact that he was intentionally walking there, Henson was walking in that spot knowing it was dangerous, being informed it was dangerous and doing it to goad Reverend Hoden, laughing at Reverend Hoden, doing it for the purpose of annoying and harassing him, part of that course of conduct, and the course of conduct doesn't have to be long. It has to be some incident, it doesn't matter how long it is.

THE COURT: I agree --

MR. MOXON: The last part of it is not particularly relevant how long but the course of conduct is.

THE COURT: All right. First of all, with respect to the interference with traffic argument. I'm sorry, but that's up to the public authorities. While it may be Reverend Hoden's responsibility within his organization to protect his employees and so forth, it's not his responsibility to be a traffic cop. So whatever it was that Mr. Henson was doing on the road is -- it may even have annoyed or harassed some other drivers, but Reverend Henson was -- or Reverend Hoden was not one of those drivers. He was somebody who came voluntarily out to the highway to try to talk to Mr. Henson. He was there of his own volition.

MR. MOXON: Further legal significance to it that, Your Honor, he was here of his own volition because that's where he's located, that's his job, that's where he's working. Henson came from San Jose and drove 300 miles down here for the purpose of endeavoring to goad Reverend Hoden, whoever is going to come out and see him, just like he did with Reverend Barton who has that responsibility in Los Angeles. He knows Reverend Hoden will come out there. He knows he is going to do it, and he drove 300 miles down for the purpose of harassing and annoying him, doing something illegal and doing something dangerous, doing something he knew would harass, annoy, was informed by Reverend Hoden would harass and annoy because he came out and told him so in no uncertain terms.

THE COURT: He was hoping someone from the Church of Scientology would come out and create a scene.

MR. MOXON: At least. At least he was doing that.

THE COURT: Right.

MR. MOXON: And he knew, reasonably would have known it would have been Reverend Hoden who did that because it's his responsibility to try to calm down and do some kind of --

MR. BERRY: That misstates the evidence.

THE COURT: This has to be conduct that is directed at a specific person. All this comment on the internet, assuming that it's not first amendment protected, is not directed to a specific person. It's directed at the Church of Scientology, a big organization with a big presence.

MR. MOXON: Your Honor, the fact --

THE COURT: That's not a specific person.

MR. MOXON: The fact that the Church of Scientology has a big presence in this area and is a responsible member of this community doesn't give a right to another person to come and harass it and do something which is illegal, doesn't give him that right.

THE COURT: Mr. Moxon, I'm afraid I can't agree with you there. The statute protects specific persons. I read it as being natural persons. And in any event the petitioner in this case is a natural person.

MR. MOXON: I'm not arguing the statute is intended to protect an organization nor am I arguing that's why it was brought. It was brought on behalf of Reverend Hoden.

THE COURT: Right.

MR. MOXON: He went to the police and the police said you have to file an anti-harassment statute, that is the only way to discuss --

THE COURT: Then he came to you and you're a lawyer.

MR. MOXON: He came to me and I'm a lawyer. I looked at the statute. It says specifically, some part of it respectfully the court is not focused on, that is, if Henson came here, he had a course of conduct. He came once and Hoden was there the first time. He came back the second time knowing that Hoden would be there and knowing and intending to harass and annoy him. He knows that this man would be there and so it is directed at an individual. Yes, he's perfectly willing to harass other people, too. And that's the facts, that he is willing to harass others is not particularly germane to whether or not Reverend Hoden is entitled to an injunction because of harassment of him specifically.

THE COURT: All right.

MR. MOXON: I use harassment generally because annoyance --

THE COURT: All right.

MR. BERRY: Objection, Your Honor, misstates the evidence.

THE COURT: I'm not persuaded that you are correct about the application of the statute itself. Even if you are, it seems to me the last sentence "constitutionally protected activity" pretty well wipes it out, that is, you don't have a situation here where the defendant is stopping people. This isn't a situation, this is not an abortion clinic situation.

MR. MOXON: Oh, yes, we do. He's stopping cars. He's doing something that's illegal.

THE COURT: Unless there's evidence that these are cars that are somehow intimately connected with Reverend Hoden, then it doesn't seem to me to be the least bit relevant.

MR. MOXON: It's very relevant, and respectfully you're mixing two things that don't go together because the harassment part goes to Reverend Hoden. The fact of the first amendment exercise isn't part of the harassment per se. If he's exercising a first amendment right, a legitimate right at that time I agree with you that's what the statute says is permissible. If he's not doing it, if what he he's doing falls outside of that first amendment protection, that's why we provided all these cases indicating that when someone goes out to, even assuming that he's just demonstrating, assuming he's just picketing, he has a first amendment right to do something but not to do it in a manner that infringes upon the rights of others, and there is a balance that must be done.

THE COURT: Sure. Who has standing to raise those rights of others?

MR. MOXON: He does. Reverend Hoden does.

THE COURT: I hardly think so.

MR. MOXON: Your Honor, it doesn't matter because he's got the burden of proving -- Mr. Henson has the burden of proving that, show what he was doing was a legitimate exercise of the first amendment. We can't come in here and say well the only person that can question whether or not he can use that defense is someone who he's harmed by doing it. That's not the correct analysis. The analysis is whether or not he can prove that everything he was doing as part of this was protected activity. He can't prove that, and to the contrary we can prove that everything he did was not protected activity.

THE COURT: Well, first let me suggest to you, you have the burden in the first place. The statute clearly says the constitutionally protected activity is not included within the meaning of course of conduct. So it seems to me that puts the burden on the petitioner to show -- the burden on the petitioner under this statute to show that whatever the conduct was, it was not constitutionally protected activity.

Now --

MR. MOXON: But the California Court of Appeal, Your Honor, has specifically indicated the burden is on him to prove, to assert that defense.

THE COURT: Who has said that?

MR. MOXON: In the case I just filed in my reply papers on the brief, I'm afraid I don't have it in front of me. Mr. Berry does. There is a number of cases that indicate that.

THE COURT: Is it a case on 527.6?

MR. MOXON: Of course not. There is very few cases on 527.6.

THE COURT: That is what I thought.

MR. MOXON: There's only two or three.

THE COURT: That is what I thought.

MR. MOXON: It is a case concerning what he claims is his constitutionally protected activity, and for him to assert that it is his burden to demonstrate it is, not my burden to prove that it isn't, although I believe I can do that and I intend to do that. I can meet that burden, though, the burden is his to prove what he was doing right there right then was constitutionally protected activity, and I can prove that it wasn't.

THE COURT: All right. I take it you have concluded your offer of proof?

MR. MOXON: I can bring in other evidence with respect to the course of conduct as to other persons similarly situated to Mr. Hoden, and that Henson knew that when he goes out as part of his plan to goad people, not to demonstrate but just to goad people to, as he calls it, stir up the clam bed or to goad people into activity that will cause a conflagration or cause a mob to burn them out, that he in fact harmed others.

During one of his demonstrations he bit a man, during another demonstration there was another scuffle, during another demonstration he ran after a person with his pool cue, which he's brought into the courtroom with him, and that that is all part of the course of conduct. And I respectfully submit that the statute does not specifically say that that course of conduct must be directed at the individual. It's a course of conduct, a harassing and annoying activity when it's directed ultimately at the individual, to a specific individual, we have an ability under the statute to come in and demonstrate that it shouldn't happen as to him and it did happen as to him.

THE COURT: At a minimum, Mr. Moxon, you have at least supplied me with all of the information that you have concerning what occurred, not the mental states of the parties involved, but what occurred in May of 1997 there at Golden Era studios and in January of 1998 at Golden Era studios?

MR. MOXON: There is other evidence I could submit, and that is --

THE COURT: I'm not asking what you could, I am asking what. You will give me the name of the witness and what that witness is going to testify to before you start. Let me call your attention that I asked Reverend Hoden who was present and he said it was Mr. Henson, the person accompanying Mr. Henson, Reverend Hoden and a security guard, Mr. Campman, who's not here today.

MR. MOXON: I have no other evidence of exactly what occurred on January 6, 1998.

THE COURT: Or on May -- Or in May of 1997, right?

MR. MOXON: Yes. In May of 1997, he spoke to a security guard, but Reverend Hoden when you asked him, of course, wasn't there, wasn't present.

THE COURT: Is the security guard here today --

MR. MOXON: He is not here.

THE COURT: -- to testify?

MR. MOXON: No, he's not.

THE COURT: Well then you're not offering that person's testimony.

MR. MOXON: He wrote a business record, which Reverend Hoden reviewed which is part of his evidence going to plaintiff's state of mind as to why it was reasonable for him to have serious emotional distress arising out of the later incident, the last part of the course of conduct in January.

THE COURT: All right. Anything further in terms of offer of proof?

MR. MOXON: In terms of offer of proof, I have other details that I'll fill in and I can fill in a lot more, but that's an outline, Your Honor.

THE COURT: All right.

Mr. Berry, do you have a motion?

MR. BERRY: I have a motion for judgment, Your Honor, in the form of a nonsuit.

THE COURT: Your motion is granted.

Thank you, gentlemen.

MR. BERRY: Your Honor, I'd also make a motion for costs as permitted under the section.

THE COURT: The defendant may recover costs but not attorney's fees.

MR. BERRY: I would submit, Your Honor, the plaintiff's petition is so lacking in merit, so lacking in law, was failed to be served timely, was not supported by proper documents, failed to disclose earlier unsuccessful relief issued by Department 2, such that an attorney's fees award would be highly appropriate in these circumstances.

THE COURT: All right. The request for the attorney's fees is denied.

MR. BERRY: Thank you, Your Honor.

MR. MOXON: Thank you, Your Honor.

THE COURT: All right.

(Proceedings adjourned.)

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