Solicitor Moxon's Malady (part three)
Keith Henson <hkhenson@netcom3.netcom.com>
19 Apr 2000 02:59:35 GMT

DECLARATION OF GRAHAM E. BERRY

I, GRAHAM E. BERRY, hereby declare and state as follows:

1. I am an attorney licensed to practice law before all of the courts of the State of California and before this Honorable District Court. I represented the plaintiff in the within action captioned Michael P. Pattinson v. Church of Scientology International, ET. Al., U.S.D.C. CD CA. Case No. 98-3985CAS (SHx) filed on May 21, 1998. I have personal knowledge of the facts set forth herein and, if called upon to do so, would so testify.

2. This Declaration is filed in support of my motion for F.R.Civ. P. Rule 60 (b) (1)-(6) relief from the Courts minute orders and rulings herein entered April 15, 1999 and July 19, 1999 respectively.

3. Attached hereto and marked as follows are true and correct copies of the following exhibits:

Exhibit 1: Letter of Duane McWaine, M.D, dated November 19, 1999. Condition unchanged;

Exhibit 2: Copy of New Times Los Angeles Newspaper, December 16, 1999 cover story detailing a three month media investigation into many of the matters at issue herein. Judicial Notice of this article Double Crossed, is hereby requested.

Exhibit 3: Contemporaneous of June 1999 meetings between Berry and Cipriano.

Exhibit 4: Summary of Chart of Evidence as to Moxons Criminal Conduct directed at Berry without exhibits.

Exhibit 5: Successful opposition of Berry to Moxons unsuccessful motion for summary judgment that this Courts $28,000 sanctions award issued by this Court to be rendered non-dischargeable in Berrys bankruptcy.

Exhibit 6: Amended Berry Opposition to Moxons clients successful motion to dismiss on behalf of Chait (also see Cipriano Appendix ¶ 72, Exh. 32, copy of check payment by Chait to Cipriano).

Exhibit 7: Moxons Petition to find Berry a vexatious litigant, partly based upon the relevant orders of this Court.

Exhibit 8: Berrys Opposition to Moxons Vexatious litigant Petition (now under appeal).

Exhibit 9: Berrys Writ for Petition of Mandate (denied) re: Moxons Vexatious Litigant Petition.

Exhibit 10: Moxons Declaration filed in Northwestern Mutual v. Anders, where he was not counsel, party or representing a witness, to support opposing counsels argument that I not be permitted to withdraw from the case for health reasons as set forth in Exhibit 1 herein.

Exhibit 11: April 5, 2000 Memorandum decision denying Moxons Application for a Contempt Order against Berry.

Exhibit 12: Berrys Motion for directions regarding Ciprianos documents filed in the Hurtado case.

4. At 11:00 a.m. on April 13, 2000, I received a telephone call from Robert Cipriano. He sounded frantic, said all sorts of weird stuff was going on around him. Whatever you [Berry] are doing is causing Moxon and Ingram to panic. Ingram was on his door step in Palm Springs, Moxon was rushing back from Clearwater, Florida and he [Cipriano] was under tremendous pressure and harassment to just disappear. I immediately communicated with one of my attorneys who took certain appropriate action.

5. In accordance with Local Rule 7.4.1, I telephoned Moxon at approximately noon on April 13, 2000. He telephoned me back with experienced criminal defense counsel (Elliot Abelson, Esq) also on the line. Moxon has previously advised me, in mid-August, 1999, that criminal defense attorney Gerald Chaleff, Esq. is also his attorney. Abelson had advised me in February of this year that I had been a real pain in the butt to the Church of Scientology.

6. I advised Moxon that I was seeking another continuance of the designation of record in the vexatious litigant appeal. As before, when he had stated that he would not oppose extensions, and did not care if the appeal was never heard, he said he would take no position. I reminded him that we had been talking about a Rule 60(b) motion since last August. He said he thought I had forgotten. I told him that it was being filed tomorrow, based heavily on the successful opposition to his motion for summary judgment which was filed in November/December 1999. (see Exhibit 6 hereto which successfully argued fraud and fraud upon the Court. I assumed, correctly, his position was still that he would not set aside the sanctions.

7. Moxon then raised the regular item of settlement. As always, such discussion went nowhere, particularly after I noted that I was merely defending against all his proceedings filed against me and the humdinger of a malicious prosecution case Moxon is creating with Hurtado v. Berry.

8. Moxon then stated that he would oppose any application to extend the appeal time limit in the vexatious litigant proceedings. Also, that he would have Judge Snyder issue Rule 11 Sanctions against me. I told him that Judge Robles had accepted the Cipriano taint of the Pattinson proceedings. Moxon stated he had not and that Judge Snyder always granted his motions against me and that he was not losing any sleep over anything I may file before her, and broke into mutual laughter with Abelson who agreed and said that this time I would not be bankrupting out of it. I then ended the conversation. Later I telephone Moxon and left him a message that I would fax him the appellate extension application the next afternoon (April 14, 2000).

9. This motion confines itself merely to the relevant wrongful out-of-cou rt conduct of opposing counsel Kendrick L. Moxon, Esq. (Moxon), and his agents and clients, during the actual pendancy of this case and only in relation to this case. However, the following information may also be of assistance to the Court:

(a) I was actively handling defense cases filed by the Church of Scientology from 1991 through 1998.In 1998, I began handling my own and several plaintiffs cases against the Church, of which the within case is one. In 1993 I became aware of certain activities being directed against me by Moxon and the Church. A chart summarizing many of those activities against me is attached hereto as Exhibit 4. The supporting declarations, affidavits and other documents are not attached since they comprise a compendium approx. 10 inches thick and are not relevant to the time frame of this particular motion, as postured by Movant.

(b) During the pendancy of this litigation I was also engaged in other litigation involving Moxon and the other attorneys appearing on behalf of Moxon and the Church herein. This motion does not incorporate or address any of the history of those cases except as may be relevant to the relief sought herein and in connection with events occurring after the voluntary dismissal of this action.

(c) After the voluntary dismissal of this action it was refiled in State Court. There the Church of Spiritual Technology(CST) , the senior most scientology corporation, run by one known scientology financial management executive, two non-scientology lawyers and one non-scientology former high ranking IRS official, successfully filed a Cal. Code of Civil Procedure Section 426.16 motion (SLAPP motion) arguing , in essence, that the Pattinson case interfered with its freedom of speech.This management church has no members or congregations!

(d) By this point in time, Moxon had forced me into bankruptcy and was pursuing various adversary proceedings and other proceedings against me as briefly explained in paragraph 12 to15 below relating to the provisions of Rule 60 in connection with the timing of this motion.

(e) Michel Revelliere is a high-ranking international church executive based in Copenhagen office. Pattinson had not heard from him for over 10 years. Soon after the within lawsuit was filed, Moxon commenced representing Reveillere against Pattison and filed an action on an unpaid note. He recovered principal and interest payments in the approximate amount of $45,000. This judgment drove Pattison into bankruptcy where the Moxon & Kobrin law firm aggressively litigated and conducted discovery. By the time CSIs SLAPP motion was adjudicated, on August 19, 1999, Pattison was so emotionally and financially destroyed by involvement in scientology related litigation, and extra-litigation tatics, that he chose to withdraw from the litigation, forgo an appeal, concentrate on obtaining a discharge in bankruptcy and try to rebuild his business as a professional artist.

10. In hindsight and with 20/20 vision, I concede that it would have been more prudent to draft the within complaints differently. However, and in addition to my declarations filed herein, at the time my approach was dictated by eight years in the trenches of scientology litigation and the resulting experience of hearing scientology trial and motion surprise arguments that allegations and evidence were not supported by the initial pleadings. (See also, Exhibit 1).

11. At no time did I subjectively proceed against Moxon in bad faith, maliciously, vexatiously or to delay the proceedings herein. On the basis of documents contained in several hundred bankers boxes of documents in my actual possession, hundreds of other boxes of litigation and related documents reasonably available to me, reasonably available witnesses and after a reasonable opportunity to take discovery, I believed that Moxon was properly named as a defendant, irrespective of whether he had actually met with Pattison (not required for conspiracy) and that the allegations could be proven at trial. The Cipriano declaration asserts that Moxon actively discouraged Cipriano from coming forward before he did, and that he has acted in retribution against Cipriano thereafter. Cipriano Appendix, Ex.B, ¶¶49-87, 96-100. Had Cipriano come forward, recanted and provided his second and third declarations (Cipriano Appendix, Exhs. B and C) before the voluntary dismissal of this action, and the briefing on the orders at issue herein, they would have been filed herein immediately, in support of the relevant pleading allegations herein, and in opposition to Moxons repeated thresh-hold Rule 11 Motions and allegations of bad faith directed against me.

12. Moxon and Ingram obtained the First Cipriano Declaration on May 5,1994. Cipriano Appendix, Ex.A, Ex.B, ¶¶14-20. Thereafter, agents of the church circulated and published it worldwide where it remains on the Internet to this day. I could never locate Cipriano until early 1998 when I sued him, honestly believing that he would recant and state that he had been coerced by Ingram. I did not anticipate Moxon and Ingram soliciting his free representation, paid by the church, as happened herein. Cipriano Appendix, Exh. B,¶¶.23-43. Moxon was to be added to the Berry v. Cipriano, et.al. , After the determination of a Cal.Civ.Code section 1714.10 motion, principally on the evidence as indicated by the chart attached hereto as Exhibit 3. Moxon and his team of lawyers from large Los Angeles, New York and Washington law firms, and other local law firms, then overwhelmed me as described on Exhibit 5, and its service list. Moxon then used a contrived argument, heavily based upon this courts Rule 11 order, to have me declared a vexatious litigant on August 23, 1999. (Exhibits 2 to 9 hereto.) An appeal is now pending. This ruling, and its inherent ironies, became widely distributed and known. New Times article, Exh. 2. It was a principle factor in forcing me from the present and active practice of law.

13. During the same period of time, June to December 1999, Moxon was vigorously pursuing claims and discovery before Bankruptcy Judge Robles. The extent of Moxons activity there is described in my successful opposition to his bankruptcy court motion for summary judgment. Exhibit 6. The trial is set for June 26, 2000 this year when Moxon must establish that I subjectively proceeded in bad faith in this case, something the trial judge has already suggested Moxon will have great difficulty doing.

14. This motion, and the vexatious litigant appeal, was being written and researched by a Ray Benckozcy who had possession of five boxes of research materials, relating in large part to this motion. In September 1999 he wrongly claimed that I owed him additional monies and refused to hand over my files until he was paid over $5,000. Because of the restrictions of the Moxon vexatious litigant ruling, I was severely limited in the manner in which I could defend Benkoczys litigation in Bankruptcy Court and Santa Monica Small Claims Court (e.g. by filing my own claim in Superior Court). However, last month, a Small Claims Court judge was able to convince Benkoczy to accept the $3,000 pre-filing settlement I had originally offered him so as to recover the papers relevant hereto and to proceed with the filing of this motion.

15. As explained in the Doctor McWaine letter attached hereto as Exhibit 1, my health has been severely impacted by the matters described herein and in the exhibits hereto. On November 19,1999 he recommended that I take a break from active lawyering until approximately mid-February. To the same end, on October 1,1999, a joined the management team of a struggling start-up hi-tech company that had been a client when I was in private practice.

16. Moxon has used this courts orders against me as the basis for a pending State Bar Complaint, one of at least six that either he or his associates have filed against me over the years, so far unsuccessfully.

17. Moxon has also injected himself into a case where I was seeking to withdraw as Defendants counsel for health reasons as set forth in Exhibit 1, Moxon was neither counsel, client or witness therein and had no conceivable connection to the litigation. Nonetheless, he filed a declaration in opposition to my withdrawal and in unsuccessful support of sanctions, as attached hereto as Exhibit 11.

18. Cipriano first contacted me by voicemail message on June 10,1999. Because of my long-involvement in scientology-related matters, I was initially cautious about it being a set up. In addition, and as described in my contemporaneous notes attached hereto as Exhibit 3. Cipriano was petrified as to what Moxon and Ingram may do to him for recanting and telling the truth. Thus, it was not until mid-July that Cipriano began drafting and revising his Second Declaration (Cip.App.Ex.B) which he finally executed on August 9,1999. It was not until September 26,1999 that he decided to provide me with the transcript of a taped conversation between Moxon and himself, as attached to the Third Cipriano declaration (Cipriano App. Exh.C).

19. On or about March 28, 2000, my former client Keith Henson filed a similar motion to this before Judge White in U.S.D.C. N.D. CA, RTC. V. Henson Two days later Cipriano called me and said that he wanted his Second Declaration and Exhibits because he had just received an offer from someone to purchase Day of The Child and all of its papers. These papers were delivered to my insurance-funded counsel in Hurtado v. Berry. She has filed a motion for directions in the L.A.Superior Court. The motion is currently pending. It and the supporting papers are attached hereto as Exhibit 12. Moxon represents Hurtado. During discovery in the Cipriano case, I provided Hurtados name to Moxon and Samuel D. Rosen, Esq.as one of a number of non-former scientologists that I had also provided pro-bono legal services to. Ingram then approached Hurtado who then retained Moxon to file a demonstrably baseless lawsuit against me. Moxon personally served it upon me on April 5, 1999, moments before I took the podium to address this Court in this litigation.

20. On April 13, 2000, my defense counsel in the Hurtado case advised me that she had just completed the dposition of Hurtados mother. She testified that in January 1999, Ingram had come to their home with a videotape of my deposition testimony regarding Hurtado. Ingram took Mr. And Mrs. Hurtado, her her sistr to Donald Wager, Esq, offices in Santa Monica where Moxon was also present. Ingram, Moxon and Wager informed them that they could allege legal malpractice and sexual battery against and a lot of money could be made.

I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Executed this 14th day of April 2000, at Los Angeles, California.

_________________________________ Graham E. Berry