6        The Court:   I want to hear from those in
7 support and then give Mr. Berry a full and fair
8 opportunity to respond.
9        Mr. Soter, are you still with us?
10       Mr. Soter:  yes, I am.
11       Mr. Rosen:  I have been told by other judges
12 that I don't need a microphone, but if Mr. Soter says
13 he cannot hear me, I will use it.
14       Mr. Soter:  I hear you fine.
15       Mr. Rosen:  your honor, I just want to make
16 a few points in addition to those that Mr. Chaleff
17 made.
18       As the moving papers set forth, Mr. Berry
19 had been sanctioned seven times by five different
20 judges in context of monetary sanctions.  That does not
21 even begin to scratch the surface.
22       Mr. Berry has been sanctioned non
23 monetary sanctions in cases in which I was representing
24 a party including prohibited filing any discovery
25 without leave of court first.  I mean, there is just an
26 endless array of conduct.
27       The other thing, the next point I want to
28 make is this, perhaps I'm a bit of a dinosaur, I've
22

1 been practicing over thirty years now.
2        The Court:   careful.
3        Mr. Rosen:  well, as a government prosecutor and
4 then in private practice.  And I was brought up with
5 the notion that professionally, whether you think the
6 judge is right, wrong, or over the top, the judge is
7 the judge and there is a certain amount of respect that
8 is commanded by that position.
9        The Court:   if that is the view in new york, i
10 encourage you to bring it to california.
11       Mr. Rosen:        your honor, I'll tell you that i
12 was recently in the fourth circuit court of appeals,
13 and you know that court of appeals --
14       The Court:        it sits in my hometown.
15       Mr. Rosen:        it was actually sitting in
16 baltimore hearing a case, and after each oral argument
17 they invite counsel up to the bench and each of the
18 judges on the panel greet the counsel.  It's a court of
19 infinite hospitality and genteel conduct.
20       The Court:        let me say about that we have a
21 crisis in california of civility.  I know that
22 everything in new york is historically sweet.
23       Mr. Rosen:        no, Mr. Berry is a member of the
24 new york bar, too, your honor.
25       The Court:        all right, but the point that i
26 want to make is actually germane to this whole case.
27       There is a crises of civility amongst
28 lawyers and they come by it actually, honestly.  The
23

1 law compels counsel to be zealous advocates for their
2 clients, and sometimes it's very hard to draw the
3 boundaries.
4        One of the things I learned in my fifteen
5 years in this job is that it's part of my job to help
6 counsel bridge the civility gap by setting boundaries
7 and by setting an example.
8        There was a time in my life when i
9 reacted to hostility among counsel with greater
10 hostility on   the theory they don't know bad until they
11 know how bad I can be, but that is not the way to be a
12judge.
13                In this particular case, I have really
14 bent over backwards to try and set a civilized, calm,
15 check-your-guns~at~the~door kind of tone.  I know that
16 litigation involving the church of scientology is
17 historically extremely bitter.  Those who are
18 affiliated and those who are formally affiliated have
19 very strong feelings.  I respect those feelings, and i
20 have no position about them other than my obligation to
21 afford a civilized, courteous, responsible, lawful
22 arena for the resolution of those issues.
23       I believe that judges play a major role
24 in the so-called civility crises that we suffer
25 generally in this country and specifically here in los
26 angeles.
27       50 That upon which you touch about that
28 goes on in the fourth circuit, it reminds me in some
24

1 ways that I have gone back to my roots and The Courtesy
2 and the good manners that I learned at the dinner
3 table, and I'm trying to impart that to this court.
4        What most disappoints me about what i
5 have received yesterday from Mr. Berry is a complete
6 failure to acknowledge the effort of this court to
7 afford for him, for those that care about his cause,
8 for every party and every litigant, the exact kind of
9 civilized, courteous, and friendly arena that you have
10 extolled in the fourth circuit and we try to achieve
11 here.
12       Go ahead, sir, thank you.
13       Mr. Rosen:        the reason I bring it up is because
14 I don't want you to leave the bench thinking that you
15 have done something to percipitate this conduct by
16 Mr. Berry.
17       The Court:  I don't.
18       Mr. Rosen: okay.  I will tell you a year ago i
19 was in trial against Mr. Berry, a jury trial in San
20 Jose before Judge Whyte.  Now I don't know if you know
21 Judge Whyte
22       The Court:  I do.
23       Mr. Rosen: he is the most mild-mannered
24 laid-back judge.  You can't hear him when he uses the
25 microphone, and you have to go a long way to get judge
26 Whyte's ire up.
27       Mr. Berry made an appearance in a case
28 that was being tried to a jury in a copyright case, and
25

1 he said things to the judge in open court and treated
2 the judge in a way that every counsel sat there trying
3 to crawl under the table and say I really don't want to
4 be here.
5 The very next day he made a posting to
6 the internet which, after being criticised by people
7 for how can you act this way as an attorney before a
8 federal judge, quote, taking on judge whyte yesterday
9 was also deliberately defiant.  Defiant on my part for
10 a number of reasons.  He is proud of it.
11       This is not you, your honor.  He has
12 treated other judges with the same disdain that he has
13 expressed~ to this court.
14       The Court: please, I am worried that your
15 argument suggests that there is a reason to fear that i
16 perceive this is about me, and I do not.
17       This is about issues in this case.  I am
18 disappointed in some things that have happened in this
19 case, but I approach my duty with a complete, careful,
20 balance, fairness, to all parties.  I extend that today
21 and I am absolutely clear on my duty and my ability to
22 afford it to be fair to all sides here.  There is
23 nothing here that I take personally.
24       Mr. Rosen: and Judge Whyte didn't take it
25 personally either, your honor, but I think this is an
26 indication of the conduct that Mr. Berry engages in
27 intentionally.
28       Of the five cases that are before you as
26

1 the predicate for the vexatious litigant motion, i
2 would like to address one of them in which I had the
3 displeasure of being the defendant.  I would like to
4 tell you a story about what happened in that case
5 because I think it really sums up the entirety of this.
6        I was scheduled to take Mr. Berry's
7 deposition in Berry v. Barton's office starting, i
8 believe, on thursday the 28th of may.  On tuesday
9 morning, the 26th of may, Mr. Berry went into judge
10 lager with an exparte that morning saying he wanted his
11 deposition postponed.
12       The reason was because he had not yet
13 served, as the plaintiff, several defendants.  The case
14 was filed three months earlier, and he had not gotten
15 around to serving them and it was unfair for him to be
16 deposed before he had gotten around to serving them.
17       Well, Judge Lager made short shrift of
18 that, but Mr. Berry knew that was going to happen, that
19 that motion was going to be denied because in his
20 briefcase he had another set of papers and walked out
21 of Judge Lager's courtroom and down the hall to, and
22 I'm not sure what it's called here, but to the family
23 division, and filed an exparte, a true exparte, no
24 notice to us.
25       We are in the court room with him before
26 Judge Lager and doesn't tell us, and walks down the
27 hall to justice beverly and presents an exparte order
28 to show cause with a tro to restrain me from coming
27

1 within one hundred feet of Mr. Berry and doesn't tell
2 judge beverly in his papers that if for some reason the
3 judge would have granted this, I would be effectively
4 precluded from taking his deposition two days later.
5        Well, fortunately, judge beverly signed
6 the order to show cause and made it returnable two
7 weeks later and crossed out the tro and put his
8 initials in the margin.  Those papers were in
9 Mr. Barry's briefcase.  He went from judge lager to
10 judge beverly that day.
11       The next day he came up with a third try
12 to try to avoid this deposition.  He opposed my pro hac
13 vice motion.   I want to read to you what he told judge
14 lager,
15       "plaintiff applies for and received
16       a temporary restraining order
17       restraining applicant, me, from
18       coming within one hundred yards of
19       plaintiff.  From telephoning and
20       from harassing or intimidating him."
21       Well, your honor, as I say, I may be a
22 little bit of a dinosaur, but I am not used to seeing
23 an attorney put in an affidavit that says he got a tro
24 when he didn't.  In any event, judge lager made short
25 shrift of that one as well.
26       That proceeding was then withdrawn with
27 prejudice when my counsel representing me, miss reeves
28 and Mr. Turrill from my firm appeared before judge
28

1 beverly cn an application for both attorney's fees and
2 sanctions.
3
In addition to attorney fees, judge
4 beverly issued an order granting us our full attorneys
5 fees, one hundred percent of them, and said if I had
6 the authority to do it under the statute, I would
7 impose sanctions as well.
8        Now in the history and view of all this,
9 one is compelled with a notion of examining whether or
10 not there has been any act of contrition, any act of
11 atonement, anything to indicate that somehow Mr. Berry
12 has chosen to steer a better course, perhaps, and that
13 is something that I think is very relevant to the issue
14 before you of vexatious litigant.
15       Has Mr. Berry learned by the error of his
16       ways?
17                 The answer is no.  I wasn't here on
18       monday, but       your honor's recitation of what occurred on
19 monday is perfectly, one hundred percent consistent
20 with what Mr. Turrill told me.
21       Mr. Turrill of my firm was here on
22 monday.  I then get a set of papers that accuse myself
23 and mike turrill of committing all kinds of heinous
24 crimes, highway mobery, subornation of perjury, et
25 cetera, et cetera.
26       Well, I don't have to read them,
27 Mr. Berry's papers, because I know that ten seconds
28 after the filing in the clerk's office I can read them
29

1 on the internet, that is the game.
2        I then find something very interesting
3 and Mr. Chaleff referred to this earlier.  Yesterday
4 afternoon at 1:00 o'clock, I got delivered to my office
5 the top half of this stack in support of a motion to
6 disqualify your honor.  The motion was noticed for
7 yesterday morning at 8:30 in department one.
8        Well, I don't profess to be an expert on
9 california practice, if counsel noticed a motion to be
10 returned at 8:30 on the 19th of august, does counsel
11 make service of those motion papers at 1:00 o'clock in
12 the afternoon on that day?
13       It doesn't seem to make a lot of sense to
14 me.  What is the point in making service of papers if
15 you don't have an opportunity to appear or respond
16 because ~he point for appearing is already past?
17       That, to me, speaks volumes of the fact
18 that Mr. Berry and his practice is not, he is not a
19 repentant individual, and he has not conformed his
20 conduct to that which is expected of all attorneys who
21 are privileged to appear before this court.
22       It's not a right, it's a privilege,
23 including me as a pro hac vice, including somebody who
24 is admitted    in this court in the state of california.
25        The second aspect of that is the motion
26 that you are not going to hear, the motion with respect
27 to Mr. Cipriano.  I'm not going to address it except to
28 say the very idea of filing a motion in a closed case,
30

1 there is no motion to reopen any case.
2        I mean, I want to file a motion.  This is
3 like a total disregard of anything which resembles
4 proper order and the judicial system process and
5 proceedings which are designed to protect all
6 litigants.
7        The next point I want to make is this, i
8 have read some of the papers in which Mr. Berry
9 provides an explanation for his tardiness on monday.
10 Guess it's in his explanation for why he should not be
11 sanctioned for showing up in your honor's court late on
12 monday.
13       Giving the benefit of the doubt to any
14 attorney that says I got stuck on the 10 and 101, i
15 think, is a natural inclination of any judge in this
16 building.  Let me tell you this, in my experience with
17 Mr. Berry, Mr. Berry is never on time.  Never files
18 anything on time.
19       I can hand up deposition transcripts of
20 one month ago when I deposed Mr. Berry's client
21 Mr. Pattinson.  Every single day Mr. Berry would show
22 up fifteen minutes late, twenty minutes late, in fact,
23 we had -- and all of this is on the record -- we had an
24 exchange on the record.  I said to Mr. Berry, "you are
25 a half-an-hour late."  "No, I'm not a half an hour,
26 it's only twenty-two minutes late."
27       Judge whyte, in the case I referred to
28 that was tried last year in san jose in which Mr. Berry

31

1 was defense counsel, reached the end of his rope with
2 Mr. Berry.  Mr. Berry did not file something.  I don't
3 remember what it was, and judge whyte came out and this
4 is in the official transcript of april 30, 1998, and
5 Mr. Berry tried to file something late and judge whyte
6 said, "i'm not going to let you file it."
7        The review of the history of this case
8 will show that the defense had more than ample
9  opportunity to list exhibits but did not do so.
10       November 14 1998,  the original pretrial
11 conference statement was filed, no exhibit list.
12 February 5, 1997, pretrial conference, no exhibit list.
13 April 22, 1998, pretrial conference, no exhibits.  On
14 and on.
15          Judge whyte went back through his files
16 and listed every single time deadline that applied in
17 this case and every single one of them Mr. Berry
18 ignored.

19       This is his modus operandi, to ignore
20 them.  He has displayed that earlier this week upstairs
21 in department 46 before Justice Minning.  There was a
22 motion on a case in which Mr. Berry represents
23 Mr. Pattinson.  On the last day for filing opposition
24 papers, Mr. Berry files and serves a document entitled
25 preliminary opposition.  A draft with holes in it.
26 With blanks, unsigned, supported by an unsigned
27 affidavit of Mr. Berry and not served on counsel until
28 the next day.  One day late.  Serves it, files it one
32

1 day and serves it the next day.
2        Now why am I saying this?  It's not
3 because I'm asking you to take any action.  I'm saying
4 it to make the point that the extent that your honor
5 believes there is any hope of rehabilitation of
6 Mr. Berry, that punishment should be measured by an
7  intention of rehabilitation or a hope of
8 rehabilitation, I'm telling you that since this motion
9 was filed, Mr. Berry's conduct has not comported with
10 the rules of practice.  And if anything, it has just
11 gotten worse and worse.
12       There is one last point that I would like
13 to make and that is that vexatious litigant motions are
14 rare in any jurisdiction.  And you really have to do
15 some, to go to the books and find cases in which the
16 court's have imposed a restraint, such as the restraint
17 that is being asked for here under the california
18 statute against Mr. Berry.
19       The only one I am aware of in thirty
20 years of practice in the state of new york, and it's in
21 the federal system, involves a litigant who engaged in
22 conduct like Mr. Berry.  And the second circuit put in
23 an additional provision to the order holding that
24 person to be a vexatious litigant, and that provision
25 is one I'm going to ask you to put in your order today.
26       And that is that whenever Mr. Berry
27 appears in any case in any court, whether in the first
28 appearance in the notice of appearance or a pleading,
33

1 he attaches a copy of this court's order holding him to
2 be a vexatious litigant to that pleading.
3        And in the martin tugadi case, the second
4 circuit explained that because decisions are not
5 ordinarily published of the lower courts because
6 another litigent who will run into Mr. Berry who does
7 not know the history, will not be aware of his prior
8 conduct, every judge and every litigant against
9 Mr. Berry, whether it's in the state of california or
10 the state of ohio has a right to know that this person
11 has been adjudicated to be a vexatious litigant.
12       50 I will ask your honor to consider
13 adding that additional provision to the order we
14 request you to issue.
15       And thank you, your honor, for your
16 patience.
17       The Court:  thank you.  One moment.
18       Chuck, how are you doing?  What I propose
19 to do is the following and I need to give The Court
20 reporter a break.  I want to hear patiently from those
21 who wish to be heard in support of this application.
22 Want to take a break and give Mr. Berry a chance to
23 organize his response and then I want to hear from
24 Mr. Berry.
25       How much time do you wish, and I'm not
26 setting a limit, I'm trying to make plans, Mr. Moxon?
27       Mr.      Moxon:   i will attempt to be very brief.
28       ~        Court:   that means?
34
1        Mr. Chaleff:   less than five minutes.       ]
2        The Court:  and Mr. Chodos, do you wish to be
3 heard?
4
Mr. Chodos:       yes, it would be less than five
5 minutes.
6        The Court:  if it works for you, I would like to
7 hear from them and then go ahead and take a break.
8        The reporter:  that is fine.
9        The Court:  go ahead.
10       Mr. Moxon:        my name is kendrick moxon.
11       Your honor, I appreciate your comments
12 regarding the restraints.
13       The      court:   Mr. Soter, are you there?
14       Mr.      Soter:   yes, I am.
15       The      court:   you may want to hold that
16       microphone        closer.
17       Mr. Moxon:  I appreciate the comments you have
18 given us concerning restraints.
19       As you know in the beginning of this
20 case, it was a little wilder than it was at some later
21 points, and as the target of most of the comments by
22 the plaintiff in the case, I tended to want to take
23 them personally.  And your comments and your activities
24 and your example of restraint was actually an example
25 to us and it caused a great deal of difference in the
26 way that we attempted to approach things here.
27       The Court:        thank you.
28       Mr. Moxon:        and I say that because you may have

35

1 seen some of the written comments here by Mr. Berry
2 where he indicated that, for example, a black guy from
3 hobson is a good deal, as far as I'm concerned.  And i
4 objected because he said in another case in which he
5 was counsel was to bite scientology in the butt.  That
6 is my agenda, to cause it as much grief as possible.
7
I don't think that a bar card should be a
8 license to create chaos and that is what has been done
9 here.
10       Every time Mr. Berry has been repeatedly
11 sanctioned he said The Court is to blame.  When costs
12 have been levied against him he said, "i don't care
13 because I'm filing bankruptcy."  When a very patient
14 federal judge, christine schneider, issued an
15 extraordinary rule eleven sanction, $28,000 against him
16 on my behalf for filing a bad faith, what she called a
17 bad faith case, under the federal vexatious litigant
18 statute, he said he was a victim of a conspiracy.
19       He has been repeatedly sanctioned,
20 constantly, and he just -- I don't have your thick
21 skin, your honor.  I have sat here many hours to see
22 what is going on and you told me to calm down before i
23 got up and spoke and I truly appreciated that.
24       The Court:        i commend you for your success in
25 doing so.
26       Mr. Moxon:  at any rate, the legislature in
27 california contemplated this kind of litigant far less
28 than the kind of litigant that we had have seen
36

1 here.  And they have set forth three objective
2 standards and one subjective standard for how to deal
3 with it.
4        Those standard are met in this case.
5 Section 391 has four standards.  The first of them, any
6 one of them, by the way, warrants and requires a
7 finding cf vexatious litigant.
8        The first one is entirely objective,
9 entirety.  And that is that five cases be dismissed
10 within a period of seven years.  Here we have five
11 cases dismissed as a per se litigant in one year. It's
12       an objective      standard.
13                The second one is a subjective standard.
14       It deals with the filing of unmeritorious or frivolous
15       papers in an      action.  The Court can take judicial
16 notice of what has been done here.  I don't think i
17 need to repeat it.  It was done here very well by
18 Mr. Rosen and Mr. Chaleff and this court knows better
19 than I do of that.
20       The third standard is also objective and
21 that is that there be a finding in another court that
22 he was a vexatious litigant.  We have that by judge
23 schneider.  He had an opportunity to appeal that and he
24 didn't do it.  It was a $28,000 rule eleven sanction
25 under 28 usc 1927 federal vexatious litigant statute.
26       So aside from anything else, aside from
27 all the other commentary, those objective standards
28 require that Mr. Berry, as a matter of law, be found to
37

1 be a vexatious litigant.  He meets all three of them.
2        It seems to me that Mr. Berry has been
3 given virtually unlimited leeway, and that he has
4 exhausted it.  He has been given virtually unlimited
5 patience and he has exhausted that, too.
6        All we ask here is that a very limited
7 restraint be imposed upon him.  Very limited procedural
8 restraint that is found to be constitutional in the
9 court system being imposed upon Mr. Berry so that we
10 can get on with our business.
11       Thank you.
12       The court:  Mr. Chodos.
13       Mr. Chodos:       i didn't think that I would be
14 part of this proceeding until Mr. Berry --
15        The Court:   hold on.  Please use the
16       microphone.
17                      Are you still there, Mr. Soter?
18                Mr. Soter:  yes, I am.
19                The Court:  very good.
20                Mr. Chodos:  I didn't think, your honor, I would
21       be part of this procedure before Mr. Berry made me a
22       party    by serving on me the first of many documents last
23       friday   and then another six inches this week, but now i
24       am.
25                       Mr. Berry does things that I didn't think
26       lawyers do.  I was relieved in the volumes of pleadings
27       that he filed in the last week to see that my name
28       appeared only in the affidavit of service, although i
38
1
1 was included apparently among the lawyers, and my
2 clients among the clients that should be held in
3 contempt, be disqualified, et cetera.
4
Mr. Berry was not always so kind.  In the
5 pattinson case, your honor, when he first filed it, i
6 barely knew Mr. Berry.  We opposed each other in, i
7 think, one proceeding.
8        I thought our relationship with each
9 other was gentlemanly and courteous.  The only
10 description he has ever given of my conduct to date in
11       any court was     that it was professional and courteous to
12       him.
13                In the pattinson case I was included in
14       paragraph 106     as one of the lawyers who implemented
15       scientology's     policy of using litigation and
16       investigation     to harass, defame, intimidate, and
17       destroy, which has been used upon the plaintiff.
18                Actually, I wasn't treated as badly in
19       that complaint which, by the way, I was able to avoid
20 putting into my files because I was able to pick it up
21 off the internet, as was other lawyers including jack
22 quinn, Mr. Rosen here, and barbara reeves who were
23 accused in paragraph 114 of destroying documents.  And
24 in paragraph 15, accused in such things as engaging in
25 such blatant and brutal legal fuddery, using
26 Mr. Berry's words, and intentional, abusive, unethical
27 and criminal conduct -- this is his description of
28 other lawyers.  Miss reeves, I think, he barely knew at
39

1 the time and when he made these remarks about me, i
2 think he barely knew me.
3        Your honor, I have been a lawyer for
4 thirty-two years.  Being a lawyer was all I ever wanted
5 to be.
6        The Court:   you see, Mr. Rosen, I told you to
7 be careful.
8        Mr. Rosen:  he looks younger.
9        Mr. Moxon:  I know when I decided I wanted to be
10 a lawyer, which was before most of the people sitting
11 in this courtroom were born, that lawyers didn't do
12 things like this.  I understand how, in the heat of
13 combat, civility is sometimes the first victim, but
14 there are boundaries, there are limits.  I still don't
15 think lawyers do things like this.
16       The Court:  Mr. Soter, it is difficult to
17 transcribe remarks over the telephone, but if you wish
18 to speak and do so slowly and clearly, I'll be happy to
19 hear from you.
20       Mr. Soter:        your honor, my comments will be
21 brief.
22       We are not a party.  I'm not a party.  My
23 law firm is not a party to this vexatious litigant
24 motion.  And in view of the recent events, I think it's
25 inappropriate for us to take a position on that motion,
26 one way or the other.
27       I will say that there are certain
28 representations in the most recently filed declaration
40

1 of Mr. Cipriano, particularly in paragraph four that
2 are wrong and that should be stricken, and that i
3 represented Mr. Cipriano properly, following all the
4 rules of professional conduct, and that I discharged my
5 obligation to represent Mr. Cipriano as he instructed,
6 and that I treated Mr. Berry civilly at all times and
7 that I don't understand any basis for any of the
8 requests for exparte relief that Mr. Berry is seeking.
9        I would be ready to address that when the
10 court is ready for that argument.
11       The Court:        very good, sir, thank you.
12       I want to give The Court reporter a
13 break.  Mr. Berry, I also wish to give you a reasonable
14 opportunity, should you wish it, to compose your
15 thoughts and response.
16       There are no secrets here.  This is all a
17 product of paperwork that has been on file a long time,
18 supplemented recently by a few matters.  But if you
19 need a reasonable period of minutes this morning, and
20 if you wish to use this court's jury room as a private
21 place to gather your thoughts and confer with whoever
22 you wish, you certainly may.
23       Mr. Berry:        there are several things, has the
24 court read my opposition?
25       The Court:        The Court has read everything
26 pertinent to this motion.
27       Mr. Berry:        has it read the documents filed
28 since the motion such as the Cipriano declaration?
41

1        The Court:  I have reviewed, to the extent
2 necessary to command the substance of every document
3 that has been submitted.
4        Mr. Berry:   I would ask that the Cipriano
5 declaration, dated august 9, and all subsequent filings
6 to this vexatious litigant motion be part of this
7 record.
8        Mr. Chaleff:  we would object, your honor.
9        The Court:  and your position on that?
10       Mr. Chaleff:  it is irrelevant.     The only
11 purpose for this is to make it a court filing that can
12 then be used in a hearing.
13       The Court:  that raises a related point, a
14 number of accusatory documents have flowed into this
15 courtroom~ this week.  At the request of counsel on
16 monday, this court did, again, a very unusual act for
17 The Court, and that is to cause documents to be filed
18 under seal pending today's hearing.
19       It is not my intent to leave matters
20 under seal.  My view is that if somebody chooses to use
21 the legal system to bash and trash, that becomes
22 evidence in the very matter before this court.
23       The question of sealing or not is
24 something that we should deal with after the conclusion
25 of this hearing, but I do want to give everybody a
26 heads up that the rules of the california superior
27 court, and the rules of the los angeles superior court
28 prohibit pleadings under seal except, in a really
42

1 compelling and unusual circumstance.
2        I also happen to believe very strongly in
3 the first amendment.  I was raised in the jeffersonian
4 tradition, and I thought of that last night in
5 reviewing Mr. Berry's papers that I may disagree with
6 what you say, but I will defend to the death your right
7 to say so.
8        I therefore intend and am inclined to
9 allow that which has been tendered to The Court to be
10 part of the record.  We are talking about a very
11 drastic potential step that is being sought by the
12 parties.  I don't concede for a minute that they are
13 relevant, but they have been tendered, and quite
14 frankly, I believe they have evidentiary matter as to
15 the very matter before this court.
16       I'll hear from people individually, but i
17 will tell you that that is my tentative on that.
18       Mr. Berry?
19       Mr. Berry:        thank you, your honor.
20       I would ask then that the record include
21 every filing since the filing of the vexatious litigant
22 motion.
23                The Court:        that is my tentative.
24                Mr. Berry:        thank you.  And I also want the
25       files    unsealed, your honor, that would be my position,
26       too.
27                The Court:        very good.
28                Mr. Berry:        and the Cipriano declaration is on
43

1 other files in relation to other matters so any filed
2 sealing of that would be moot.
3        The Court:        we understand.    We will deal with
4 that question separately.  I've given my tentative on
5 that.  I do want to give counsel the opportunity to be
6 heard on that but that is a downstream matter this
7 morning.
8        Mr. Berry:   and finally, as to Mr. Soter's
9 remarks before, I sit down, I'm told by Mr. Cipriano
10 that he met him once and has never heard from him
11 since.
12       The Court:        very well.
13       How much time would you like?  My normal
14 break is fifteen minutes.
15       Mr. Berry:  that will be sufficient, your honor.
16       The Court:        we will be in recess for fifteen
17 minutes.
18       (Morning recess.)
19