MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release and Settlement Agreement (hereinafter "the Agreement") is entered into by and between Plaintiff, GRAHAM E. BERRY, and Defendant, ROBERT J. CIPRIANO, and is made with reference to the following facts:
R E C I T A L S
A. Executed concurrently herewith, and incorporated herein by reference, is the Declaration of Robert J. Cipriano, and Exhibits thereto (hereinafter "the Cipriano Declaration")
B. On or about May 4 and 5, 1994, Eugene Ingram, misrepresented himself as a Los Angeles Police Department Detective, and hired by the then Los Angeles law firm of BOWLES & MOXON (now MOXON & KOBRIN) extorted Robert J. Cipriano, and engaged in other acts of duress, intimidation and undue influence, in order to force him to sign a statement falsely alleging Graham E. Berry to be a pedophile, as set forth in the operative complaint herein, and described in ¶¶. 14-20 of the Cipriano Declaration. Without Robert J. Cipriano's knowledge or consent, Eugene Ingram, the Bowles & Moxon law firm, the Moxon & Kobrin law firm, various of the churches and corporations of Scientology, falsely representing themselves to be churches and corporations independent of the total control of David Miscavige and the Sea Organization, and others, published the false allegations regarding Graham Berry world wide and, as of the date hereof, the false statements regarding Graham E. Berry continue to be published around the world, and are freely available upon the Internet;
C. In January 1998, Eugene Ingram and the Law Offices of Moxon & Kobrin improperly obtained a pre-filing draft of the original Complaint herein, and then solicited Robert J. Cipriano's legal representation at no cost, and with other valuable inducements, all as set forth in ¶¶. 23-36 of the Cipriano Declaration;
D. In March 1998, Robert J. Cipriano instructed Kendrick L. Moxon, Esq. to settle this litigation along the lines of the e-mail requests Graham E. Berry had made and, as set forth in ¶ 30 of the Cipriano Declaration. Kendrick Moxon ignored Robert J. Cipriano's settlement request and instructions, failed to convey his client's settlement proposal to Graham E. Berry, and otherwise proceeded to use his representation of Robert J. Cipriano to "utterly destroy" Graham E. Berry, consistent with the "Fair Game Policies and practices" of Mr. Moxon's other client, the Church of Scientology, but without explaining that to Robert J. Cipriano or obtaining any waiver of conflict of interest as between Kendrick L. Moxon, (as a potential party and material witness herein) and his other concurrent purportedly separate clients, the churches and corporations of Scientology, his other concurrent purported separate clients and Defendants Barton and Chait herein;
E. On May 25, 1998, Mr. Moxon arranged for Jeffrey Barton to pay Robert J. Cipriano $2,500 as set forth in ¶ 47 of the Cipriano Declaration;
F. On November 20, 1998, Robert J. Cipriano received a payment of $1,000.00 from Defendant Isadore Chait, as described in ¶ 72 of the Cipriano Declaration;
G. Between June 1998 and the present, Kendrick L. Moxon, the law firm of Moxon & Kobrin, the Church of Scientology International and others, have made substantial payments (in excess of $200,000) for Robert J. Cipriano's residential, business, transportation and other expenses, all knowingly in connection with his false testimony herein, and as described inter alia, in the Cipriano Declaration, ¶¶ 30, 31, 33, 35-36, 37-43, 45-47, 49-59, 61-63, 67-68, 72, 79-80, 93 and 95.
H. On August 6, 1998, Kendrick L. Moxon purportedly attained $20,000 from actor John Travolta and paid it to New Jersey attorney Lloyd Levenson, in order to have Robert J. Cipriano's then existing New Jersey felony conviction expunged so that Graham E. Berry could not use it to impeach Robert J. Cipriano at any trial herein, and as described in the Cipriano Declaration, ¶¶ 60, 73;
I. On June 29 and 30, 1998, Kendrick L. Moxon, Esq. instructed Robert J. Cipriano to lie at the deposition of Plaintiff herein, and as described in ¶ 50 of the Cipriano Declaration;
J. On July 1, 1998, Kendrick L. Moxon, Esq., at the Moxon & Kobrin law firm and, Samuel D. Rosen, Esq., and Barbara A. Reeves, Esq., of the Paul, Hastings, Janofsky and Walker law firm, instructed Robert J. Cipriano to lie at the deposition of Plaintiff herein, as described in ¶¶ 51-53 of the Cipriano Declaration;
K. In January 1999, Kendrick L. Moxon and Eugene Ingram procured, extorted and bribed one Anthony Apodaca to commit perjury against Plaintiff herein, in the Hurtado v. Berry case, (L.A.S.C. Case No. BC 200227) which Kendrick L. Moxon and Eugene Ingram had solicited and fabricated as described, inter alia, in the Cipriano Declaration, ¶¶ 81-85;
L. That had Kendrick L. Moxon, and Eugene Ingram not sought Robert J. Cipriano out and extorted him and otherwise tampered with his truthful testimony, and the law firms of Bowles & Moxon, Moxon & Kobrin, Wasserman, Comden & Casselman, and Paul, Hastings, Janofsky & Walker not used Robert J. Cipriano to destroy Plaintiff as part of a Church of Scientology International covert operation (involving client solicitation, witness tampering, blackmail, bribery, subornation of perjury and obstruction of justice, then Robert J. Cipriano's part in the destruction of Plaintiff's life and reputation would not have occurred;
M. As Kendrick L. Moxon, Esq., Samuel D. Rosen, Esq., and Barbara A. Reeves, Esq., established at the deposition of Robert J. Cipriano herein on July 1, 1999, Defendant Robert J. Cipriano does not have sufficient means to pay even a modest monetary judgment herein.
NOW, THEREFORE, and in consideration of the covenants and mutual promises of the parties to this agreement, it is agreed as follows:
E F F E C T O F R E C I T A L S
1. INCORPORATION OF RECITALS
The foregoing recitals, ¶¶ A - M hereinabove, are incorporated herein by reference, and as such are made a part hereof, as though fully set forth herein.
2. INTENT OF THE PARTIES.
It is the intent of the parties hereto that Robert J. Cipriano
correct the record herein, and do all such things to make amends to Plaintiff, to expressly apologize to Plaintiff and to try and remedy the irreparable damage to Plaintiff's reputation, career and life, that Robert J. Cipriano's involuntary participation in the matters giving rise to this litigation has caused. In exchange therefore, Plaintiff accepts the apology and amends of Robert J. Cipriano and agrees not to execute this Stipulated Judgment on Robert J. Cipriano and executes the mutual general releases contained herein. Accordingly, it is the intent of the parties hereto, that this Agreement is to terminate all litigation and claims that may exist between them, as of the date hereof, and in relation to those matters giving rise to this litigation.
3.1. Defendant Cipriano stipulates to the entry of judgment against him herein, in the amount of ONE HUNDRED AND TWENTY MILLION DOLLARS ($120,000,000).
3.2. The aforesaid sum of $120,000,000 is calculated as follows: In the cases of Christofferson v. Church of Scientology and
Wollersheim v. Church of Scientology, the trial juries returned verdicts in the amount of $39 million dollars and $30 million dollars respectively in connection with covert operations of the Church of Scientology, including by not limited to the application of its "fair game" practices and policies against critics and lawyers adversely engaged in litigation against it. Notwithstanding such unmitigated jury condemnation of the "fair game policies and practices" of the Church of Scientology, it continues to use them and has used them against Plaintiff herein and in connection with cases and complaints filed before other courts and regulatory authorities.. Accordingly, Defendant Robert J. Cipriano stipulates that a judgment in similar amount, in favor of Plaintiff, would be appropriate, together with punitive damages of three times that amount, aggregating approximately $120 million dollars without any adjustment for inflation since the Christofferson (1979) and Wollersheim (1986) judgments..
3.3. Plaintiff shall file a Motion for Good Faith Settlement Determination (C.C.P. § 877.6) concerning the settlement herein.
4. DISMISSAL OF ALL CLAIMS.
Plaintiff agrees to dismiss with prejudice, any and all claims against Defendant Robert J. Cipriano (Berry v. Cipriano (LASC No. BC 184355), arising from his involvement concerning this litigation, and Defendant Cipriano agrees to forego any counter-claims against Plaintiff, as a full and complete settlement of all claims of the parties hereto known or unknown, and as full consideration for release as set forth below.
5. RELEASE OF DEFENDANT ROBERT J. CIPRIANO.
In consideration of the promises and agreements contained herein, Plaintiff, for himself, his heirs, personal representatives, successors, assignees, and transferees, fully and forever releases and further discharges Defendant Robert J. Cipriano and his successors, heirs, assignees and transferees, from any and all cause or causes of action, suits, claims, demands, obligations, liabilities, damages, liens, contracts, agreements, promises, losses, costs, sanctions, or expenses, of any nature, whatsoever, whether known or unknown, whether fixed or contingent, whether at law or in equity, arising out of or in any way connected or related to, all claims or actions arising out of the matters giving rise to this litigation. This release shall be effective forthwith.
6. WAIVER OF CIVIL CODE SECTION 1542.
Each of the parties hereto do expressly waive the provisions of Section 1542 of the California Civil Code, which states the following:
A general releases does not extend to claims which a creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the Debtor.
7. NON-RELEASE OF DEFENDANT'S AGENTS.
Plaintiff, and Defendant Robert J. Cipriano, do not intend, or agree, that the mutual general releases contained herein, extend to anyone other than Plaintiff and Defendant Robert J. Cipriano personally. Accordingly, it is the express intent of the parties hereto that this Agreement not release, or dismiss any claims of any nature whatsoever, that either Plaintiff or Defendant Robert J. Cipriano may have against any other persons, or entities, including but not limited to, the law firms of Bowles & Moxon, Moxon & Kobrin, Wasserman, Comden & Casselman, Paul, Hastings, Janofsky and Walker, Eugene Ingram, Timothy Bowles, Kendrick L. Moxon, Helena Kobrin, Gary Soter, Samuel D. Rosen, Barbara A. Reeves, Michael Terrill, Isadore Chait, Glenn Barton, Michael Rinder and David Miscavige.
8. COVENANT NOT TO EXECUTE.
Plaintiff hereby agrees, represents, warrants and covenants that he will not execute the judgment stipulated to herein against Defendant Robert J. Cipriano
9. ENTIRE AGREEMENT.
Except as specifically set forth herein, this Agreement contains the entire understanding and agreement between the parties with respect to the matters referred to herein. No other representations, covenants, undertakings, or prior or contemporaneous agreements, oral or written, or regarding such matters, which are not specifically contained and/or incorporated herein by reference, shall be deemed, in any, to exist or bind any of the parties hereto, except as specifically set forth herein.
10. NO RELIANCE UPON OTHER REPRESENTATIONS.
The parties hereto acknowledge that each party has not been induced to enter into this Agreement, and has not executed this Agreement in reliance upon any promises, representations, warranties or statements not abided within or incorporated by reference in this Agreement. In particular, the parties hereto represent that they each have entered into this Agreement free of any duress, intimidation or inducement from or by the other.
This Agreement may only be modified or superceded by another written agreement or written amendment.
12. BINDING EFFECT.
To the fullest extent legally possible, and except as otherwise provided herein (e.g. para. 7) this Agreement and any documents incorporated herein by this reference, shall apply to, and be binding upon the legal representatives of the parties hereto.
13. ATTORNEYS' FEES.
Should any action be taken to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover, as an element of its costs, his reasonable attorneys fees.
14. CALIFORNIA LAW AND VENUE.
This Agreement is to be performed in Los Angeles, California, and is to be interpreted, enforced and governed under the laws of the State of California, at Los Angeles.
This Agreement may be executed in multiple counterparts, each of which shall be deemed an original agreement, and all of which shall constitute one agreement, to be effective as of the date set forth below.
16. NUMBER AND GENDER.
Whenever herein a singular name or number is used, the same shall refer to the plural, and the plural shall include the singular, where appropriate, and words of any gender shall include the other gender or neuter, where appropriate.
17. RECEIPT OF COPY OF AGREEMENT.
All parties hereto acknowledge receipt of a copy of this Agreement.
18. FURTHER DOCUMENTS.
The parties hereto agree that they shall immediately execute and deliver any and all documents, and perform any and all acts reasonably required on their part, or those which may be reasonably necessary to effectuate, complete and facilitate the provisions of this Agreement, and the intentions of the parties hereto, as set forth above.
It is specifically agreed and understand that a waiver, if any, of one breach or default hereof, does not and shall not be construed as a waiver of any other or future breach of or default.
The captions of the various sections of this Agreement are intended to be used solely for reference purposes and are not intended, and shall not be deemed for any purpose whatsoever, to modify, explain, or aid in construction or interpretation of any of the terms and provisions of this Agreement.
In the event that any provision of this Agreement as applied to any other parties or as to any specific circumstance, shall be adjudged by a court of competent jurisdiction, to be void or unenforceable, then, in such event, the same shall in no way effect any other provision in this Agreement, and/or its validity or enforceability, as a whole.
22. LEGAL ADVICE.
Defendant Robert J. Cipriano expressly acknowledges that when he first communicated with Plaintiff regarding the matters set forth herein, on or about June ___, 1999, he advised Plaintiff that he was no longer represented by his former counsel of record herein, and that Plaintiff herein has subsequently and repeatedly urged him to obtain new and separate counsel for representation in connection with the matters set forth herein. Notwithstanding, Defendant Robert J. Cipriano has chosen not to retain other counsel, to represent himself in this matter, and to retain Plaintiff to represent him in connection with certain other ensuing matters, unless and until other counsel can be obtained.
23. VACATION OF ALL ADVERSE ORDERS
Defendant Robert J. Cipriano hereby requests and stipulates to all discovery orders, sanctions and orders for special master fees herein, being reversed, vacated and refunded in Plaintiff's favor.
24. RETENTION OF JURISDICTION.
It is the intention of the parties hereto that judgment be entered herein, and jurisdiction be retained, in accordance with the provisions of C.C.P. § 664.6.
IN WITNESS WHEREOF, the undersigned have executed this Agreement, effective this ____ day of August, 1999.
Plaintiff, Graham E. Berry Defendant, Robert J. Cipriano