1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
REPLY IN SUPPORT OF MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE §128.7
68668797v1
JEFFER MANGELS BUTLER & MITCHELL LLP ROBERT E. MANGELS (Bar No. 48291)
rmangels@jmbm.com
MATTHEW D. HINKS (Bar No. 200750)
mhinks@jmbm.com
1900 Avenue of the Stars, 7th Floor Los Angeles, California 90067-4308 Telephone: (310) 203-8080 Facsimile: (310) 203-0567 Attorneys for Defendant RELIGIOUS TECHNOLOGY CENTER SCHEPER KIM & HARRIS LLP WILLIAM H. FORMAN (Bar No. 150477)
wforman@scheperkim.com
DAVID C. SCHEPER (Bar No. 120174)
dscheper@scheperkim.com
MARGARET E. DAYTON (Bar No. 274353)
pdayton@scheperkim.com
800 West Sixth Street, 18th Floor Los Angeles, California 90017-2701 Telephone: (213) 613-4655 Facsimile: (213) 613-4656 Attorneys for Defendant CHURCH OF SCIENTOLOGY INTERNATIONAL SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT VALERIE HANEY, Plaintiff, v. CHURCH OF SCIENTOLOGY INTERNATIONAL; RELIGIOUS TECHNOLOGY CENTER; and DAVID MISCAVIGE; and DOES 1-25, Defendants. Case No. 19STCV21210 [Assigned for all purposes to Hon. Richard J. Burdge, Jr., Department 37]
REPLY IN SUPPORT OF MOTION BY DEFENDANTS RELIGIOUS TECHNOLOGY CENTER AND CHURCH OF SCIENTOLOGY INTERNATIONAL FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE §128.7
Date: January 14, 2021 Time: 8:30 a.m. Dept.: 37 Action filed: June 18, 2019 Trial date: N/A
Electronically FILED by Superior Court of California, County of Los Angeles on 01/07/2021 05:14 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Mariano,Deputy Clerk
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
REPLY IN SUPPORT OF MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE §128.7
68668797v1
I.
INTRODUCTION
On March 4, 2020, Plaintiff filed a motion asking this Court to reconsider its ruling granting
Defendants’ motions to compel arbitration. That motion was premised upon the contention made by Plaintiff’s counsel
in a declaration submitted with the motion that Plaintiff had recently uncovered
“new” evidence that was
purportedly unavailable to her or her counsel prior to the hearing on the arbitration motions. In their opposition to that motion and in this motion, Defendants exposed that lie for what it was. In particular, Defendants established that the central, purportedly
“new” document filed with the motion for reconsideration was a document Plaintiff’s counsel held in his
hand as he argued about it during the hearing on the motions to compel arbitration. Defendants also established that the central
“
new
”
witness that had allegedly come forward is the former co-host of an anti-Scientology television show on which Plaintiff and her counsel made repeated appearances and on which Plaintiff herself was credited, and is a member of a Board of Directors of a lobbying organization the majority of which is comprised of lawyers representing Plaintiff in this very lawsuit.
Defendants further established that the nine purportedly “new” documents
filed with
Plaintiff’s
motion had either previously been filed by Defendants in this case, had previously been cited by Plaintiff in her complaint, contained facts alleged in the complaint, or were available in the public record (and also included one that Plaintiff made no argument from). Not surprisingly, the
Court rejected Plaintiff’
s motion out of hand ruling that,
“Plaintiff has failed to demonstrate that
new facts, circumstances or law within the meaning of [Cal. Civ. Proc. Code §]
1008.”
1
Plaintiff’s opposition to this motion utterly fails to justify the filing of her motion for
reconsideration in light of the showing made by Defendants here. It is black letter law that a motion for reconsideration may not be filed unless it is based on new facts or new law unavailable to the moving party prior to the hearing on the previous motion. Plaintiff and her counsel here had neither
new facts nor new law, and instead simply manufactured “new” evidence based upon witnesses and
documents that were obv
iously available to them all along. Plaintiff’s motion was built
upon a
1
Over two hundred days after Defendants gave notice of the Court’s ruling on the arbitration motion, Plaintiff filed a petition for writ of mandate with the Court of Appeal seeking to overturn the Court’s
ruling. Not surprisingly, the Court of Appeal rejected that petition as untimely. Plaintiff then sought review in the Supreme Court. That petition was denied as well.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
REPLY IN SUPPORT OF MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE §128.7
68668797v1
foundation of falsehoods and it merits sanctions. Enough is enough.
Plaintiff and her counsel have long played fast and loose with the Court’s
rules. An award of monetary sanctions of sufficient magnitude is necessary here to deter Plaintiff,
her counsel and future litigants from abusing the Court’s processes through groundless motions for
reconsideration seeking multiple bites at the same apple. The motion should be granted.
II.
ARGUMENT A.
Plaintiff Concedes That Defendants Properly and Timely Served This Motion
Defendants prepared and served this motion on Plaintiff
’s counsel
on June 25, 2020. (Hinks Decl., ¶ 5.) Under Cal. Civ. Proc. Code §
128.7(c)(1), Plaintiff’s deadline to withdraw or
correct the motion pursuant to the 21-
day “safe harbor” provision was July 17, 2020. (
Id.
, ¶ 5.) Plaintiff did not do so; Defendants therefore filed this motion on July 20, 2020. Plaintiff does not dispute that this motion was properly served and filed in accordance with Cal. Civ. Proc. Code § 128.7, that she was given proper notice or that she was provided the statutory safe harbor period to withdraw her motion, and therefore concedes all of these points.
D.I. Chadbourne, Inc. v. Superior
Court, 60 Cal. 2d 723,
728, fn. 4 (1964) (where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground);
DuPont Merck Pharmaceutical Co. v. Superior Court
,
78 Cal. App. 4th 562, 566 (2000) (“By failing to argue the
contrary, plaintiffs concede this issue.”).
B.
Plaintiff Fails to Address the Fact That the Central,
Allegedly “New” Document
Filed with the Motion for Reconsideration Was Clearly Not New Evidence
As Defendants showed in their motion for sanctions, Plaintiff
’s motion for reconsideration was initially based upon Plaintiff’s contentions that she
had been declared a suppressive person (Factual Contention 1) and
was terminated from Defendants’ staff
(Factual Contention 2) prior to her executing her Staff Departure Agreement. (Mtn. for Reconsideration, pp. 1-4.) Plaintiff falsely
claimed that these purported facts were unknown to her prior to the Court’s ruling on the motion
s to compel arbitration. (
See, e.g.
, Thompson Decl. iso Mtn. for Reconsideration, ¶ 8
(“Allowing discovery would have revealed … [that] Plaintiff was forced under duress to sign the ‘Staff Departure Agreement’
after she was already fired
from the Sea Org” [and] “Plaintiff was
already declared
a ‘suppressive person’
before she was forced
, u
nder duress, to sign the ‘Staff Departure
