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. CONSIDERATION.
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.
11. MODIFICATIONS.
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.
15. COUNTERPARTS.
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.
19. WAIVER.
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.
20. CAPTIONS.
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.
21. SEVERABILITY.
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
________________________ ________________________
WITNESS WITNESS