Points and Authorities for Amended Scheduling Order Contains key details re Depositions of David Miscavige and Others
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 95-K-2143
RELIGIOUS TECHNOLOGY CENTER, a California non-profit corporation, and BRIDGE PUBLICATIONS, INC., a California non-profit corporation,
Plaintiffs,
v.
F.A.C.T.NET, INC., a Colorado corporation; LAWRENCE WOLLERSHEIM, an individual; and ROBERT PENNY, an individual,
Defendants.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS TO AMEND THE SCHEDULING ORDER HEREIN AND TO COMPEL THE DEPOSITION OF DAVID MISCAVIGE
COME NOW the Defendants, FACTNet, Inc. and Lawrence Wollersheim, by and through their respective counsel of record, Musick, Peeler & Garrett LLP, Hagenbaugh & Murphy and Beem & Mann P.C., and submit the following Memorandum of Points and Authorities in Support of Their Motion to Amend the Scheduling Order herein to permit further discovery pursuant to F.R. Civ. P. Rule 16(b)(6) and to compel the deposition of David Miscavige. Plaintiffs cannot plausibly claim to be prejudiced by this motion because they have served Defendants and their counsel with copies of a permanent injunction entered in the related RTC v. Lerma litigation and asserted the position that Defendants and their counsel are bound thereby.
I. DEFENDANTS HAVE DILIGENTLY PURSUED THE DISCOVERY THEY SEEK TO COMPEL 1. Counsel for FACTNet and Wollersheim were admitted pro hac vice herein on November 21, 1996. They were immediately confronted with Plaintiff's continuing discovery and commenced their own discovery efforts in accordance with D.C. Colo. L.R. 30.1A. Thereafter, Defendants have sought various forms of discovery from, among others, David Miscavige. Every time Defendants have exhausted the L.R. 30.1A meet and confer process and indicated their intention to file a motion to compel, Plaintiffs have changed tack and engaged in another form of discovery obstruction or about face. A. Plaintiffs Have Themselves Ignored The Claimed Discovery Cut-Off Date. Plaintiffs served F.A.C.T.Net's counsel of record, Graham E. Berry, Esq., with a deposition subpoena duces tecum only days before he sought pro hac vice admission in this Federal District. Thereafter, Plaintiffs strenuously opposed F.A.C.T.Net's motion for a protective order. On November 21, 1996, this Court granted F.A.C.T.Net's motion for a protective order regarding the deposition of its counsel herein. 2. Similarly, Plaintiffs served deposition subpoenas duces tecums on both R. Vaughn Young and his wife. At the time, there had been no indication that either of the Youngs had been retained as expert witnesses herein. There has been extensive correspondence regarding the deposition of Vaughn Young (see generally, Exhibits 2-22, 26, 28-30, 32-34, 57, 58, 66, 67, 69). Significantly, F.A.C.T.Net's counsel wrote to Plaintiffs on December 3, 1996 and advised them that Defendants had "retained Mr. Young as an expert consultant . . . [and] at the appropriate time, Mr. Young will be designated as a defense expert witness on certain relevant matters." Furthermore, Defendants objected to Mr. Young's "deposition being taken twice in this litigation" and suggested that Plaintiffs postpone their "deposition of him until [he had been designated as an expert witness when Plaintiffs could] examine him on the opinions he has agreed to provide and the basis for those opinions." Berry Decl. Exhibit 5. Mr. Young has not been designated as an expert witness herein and there has been no statement as to the issues on which he would be prepared to render opinions. On December 11, 1996 Plaintiffs responded that they would take his deposition twice. Immediately as a percipient witness and subsequently as an expert witness. "[O]ur clients cannot be expected to wait for you to designate him as an expert before deposing him as a percipient witness . . . [T]herefore, we will depose Mr. Young now, and if you then designate him as an expert witness we will notice him for deposition at that time also." Berry Decl. Exhibit 7. 3. As explained in greater detail below, on April 14, 1997, a status conference was held before Magistrate Judge Abram. At that time, Plaintiffs' new counsel Samuel Rosen, Esq. successfully argued that discovery had closed and all of defendants' pending discovery (e.g., Exhibits 45-46) should be taken off calendar and withdrawn. In response to F.A.C.T.Net's counsel's argument that Plaintiffs had themselves ignored any discovery cutoff, Mr. Rosen successfully argued that Plaintiffs had been taking Mr. Young's deposition as an expert witness. / On that basis, the Court, despite having scheduled discovery conferences every two months throughout the rest of this year, struck all of Defendants' pending discovery until such time as a motion to amend the Scheduling Order was granted. 4. Plaintiffs' argument was all the more deceptive because the parties had been engaged in "meet and confer" communications regarding Defendants' requested depositions for four months. See generally, Berry Decl., Exhibits 12, 13, 23, 24 and 25. Indeed, for the previous four weeks, the parties had been specifically engaged in the "meet and confer" process regarding Plaintiffs' Request for a F.R.Civ.P. Rule 16(a) pretrial discovery scheduling conference. See generally, Berry Decl., Exhibits 27, 28, 29, 30, 31 and 33. Moreover, on March 31, 1997, the parties signed a Joint Request for Pretrial Conference Pursuant to Fed.R.Civ.P. 16. Berry Decl., Exhibit 36. Plaintiffs deceptive flip-flop as to the status of discovery was even more disingenuous considering this Court's February 12, 1997 Order referring, inter alia discovery motions, to Magistrate Judge Abram. Berry Decl. Exhibit 21. 5. Plaintiffs also ignored this Court's February 21, 1997 ruling upon the arrogant assumption that this Court did not know what it was doing (Moving Mem., p. 2, fn. 3) and the misplaced assumption that this Court does not have the power to do what it did sua sponte. On February 21, 1997 various motions were before this Court including BPI's original motion for summary judgment. See generally, Berry Decl. Exhibit 22. On that occasion, the Court held that this case was not "well suited to summary judgment proceedings" and that it was "denying the motion for summary judgment without prejudice to renew at the close of discovery." Berry Decl. Exhibit 22, p. 4:15-22. Furthermore, the Court remanded the matter "to the Magistrate to conduct discovery." Berry Decl. Exhibit 22, p. 4:25-5:1. Moreover, the Court stated that "there are accusations that have been made here, and . . . if at the close of discovery, there is evidence that some of these accusations have even a reasonable ground to support them, I am going to submit this matter to the United States Attorney for presentation to the Grand Jury." / Berry Decl. Exhibit 22, p.5:24-6:4. And if this wasn't enough, the Court again stated "the motion for summary (sic) is denied without prejudice. It may be renewed after the close of discovery." Berry Decl. Exhibit 22, p. 6:16-18. 6. Accordingly, it is abundantly clear that the Court itself had determined that the original Scheduling Order had been superseded by subsequent events, including but not limited to the change of counsel, and that discovery proceedings were now governed by the Court's February 12, 1997 Supplemental Order of Reference to Magistrate Judge. Berry Decl. Exhibit 21. B. Plaintiffs' Discovery Flip-Flop Was Blatant Obstruction. 7. As indicated above, shortly after F.A.C.T.Net's new counsel was admitted herein pro hac vice, Defendants set about requesting the depositions of various witnesses. In large part, these witnesses were controlled by Plaintiffs and Defendants knew, from past experience, that it was virtually impossible to access these plaintiff-controlled witnesses for service by subpoena. 8. For example, former RTC president Vicki Aznaran has provided declaration testimony that "Miscavige has been known to. . . hide out from process server." Berry Decl., Exhibit 93, p. 000016, lns. 15-20 (filed under seal). See generally, Berry Decl., Exhibit 92; Declaration of Michael J. Calagna (filed under seal). To that end, the parties engaged in a extended "meet and confer" process during which plaintiffs never once raised their subsequent "discovery cutoff" objection. See generally, Berry Decl. Exhibits 12, 13, 15, 24, 25, 27-37, 44. Indeed, Defendants themselves, in a March 6, 1997 letter to Plaintiffs, and on the assumption that there would be agreement and cooperation as to the depositions Defendants were requesting, stated that they "would like the Court to impose a discovery cutoff date in 90 days time and a trial date (depending on the Court's schedule and wishes) in 120 days." Berry Decl. Exhibit 24, p. 3 4. 9. By March 20, 1997, Defendants were increasingly frustrated by Plaintiffs' strategy to "obstruct and delay all discovery sought by Defendants." Berry Decl. Exhibit 30, 2. In the same letter, Defendants stated that although they had agreed to join Plaintiffs' "request for a F.R.Civ.P. Rule 16(a) discovery scheduling conference, [they were] not going to treat it as being an informal stay of Defendants' discovery rights. Consequently, since [Plaintiffs] had failed to cooperate in the scheduling of depositions as required by Local Rule 30.1A, [Defendants would] now proceed with the unilateral subpoenaing of third party witnesses, and the noticing of the depositions of Plaintiff-controlled witnesses, and the service of other discovery requests." Berry Decl. Exhibit 30, p. 2, 3 and 4. Specifically, Defendants requested immediate dates for "the deposition of Mr. David Miscavige, the Chairman of Plaintiff RTC, the managing agent of the Scientology Organization which includes Plaintiff BPI, and the person with the most unique percipient knowledge gained during the relevant time periods . . . ." Berry Decl. Exhibit 30, p. 3, 2 and 3. See also, Berry Decl. Exhibit 33, p. 3, 2. 10. On April 1, 1997, Mr. David Miscavige was ordered into immediate deposition by the Court in the related case of Religious Technology Center v. Dennis Erlich, USDC, NDCA No. C95- 20091 RMW (EAI). / Berry Decl. Exhibit 37. That deposition has been taken. Then, over the next ten days, Defendants herein served written discovery including a subpoena for records regarding the death of L. Ron Hubbard (Berry Decl. Exhibit 38), a second request for production of documents (Berry Decl. Exhibit 39), and four sets of requests for admission (Berry Decl. Exhibits 40-43). Many of these document requests, and requests for admission, focused on the respective roles of L. Ron Hubbard, David Miscavige and certain other senior Scientology executives in connection with the matters at issue herein. 11. On April 14, 1997, at a status conference herein, Plaintiffs filed a summary of recent F.A.C.T.Net discovery requests. Berry Decl. Exhibit 44. On the same date, notwithstanding all of the matters above, Plaintiffs' counsel Mr. Rosen successfully, and misleadingly, persuaded this Court that all discovery had been closed and should not be reopened. Berry Decl. Exhibit 45. Thus, in one foul swoop, Plaintiffs sandbagged Defendants and rendered four months of expensive and extensive discovery communications and negotiations moot. In so doing, Plaintiffs had again succeeded in blocking any immediate deposition of David Miscavige, had avoided producing documents and had avoided responding to requests for admission which Defendants had tailored to try and reduce the need for, or areas of, deposition discovery. C. Between April 15, 1997 and May 16, 1997, The Parties Met and Conferred Regarding An Amended Discovery Scheduling Order. 12. The chutzpah of Plaintiffs' claim that Defendants "have done nothing to advance this case" Moving Memorandum, p. 2, 3, is further evidenced by the correspondence and meetings the parties had between April 15, 1997, and May 16, 1997. 13. The day after Plaintiffs successfully sandbagged Defendants with their misleading and surprise status conference argument that discovery had closed and that all of defendants pending discovery should be stricken, Plaintiffs wrote to Defendants regarding the discovery they needed "in order for the record to be complete and for the Court to proceed to decide a summary judgment motion by Bridge (covering the published works only), assuming [Defendants] Motion to Amend [their] pleading is denied." Amazingly, Plaintiffs added that their "position is that all discovery is closed . . ." Berry Decl. Exhibit 46, p. 2, 1. 14. Defendants then proceeded to provide extensive explanation as to which persons they wished to depose and why. See generally, Berry Decl. Exhibits 48, 49, and 68. / Specifically, on April 21, April 24, and May 5, 1997, Defendants provided extensive facts and argument as to why they were entitled to take David Miscavige's deposition. Berry Decl. Exhibit 49, 52 and 68. Finally, on May 5, 1997, Defendants stated that Plaintiffs were "blatantly obstructing any effort by Defendants to amend the Scheduling Order" and that they would "now proceed with the filing of a motion to compel the deposition of David Miscavige accompanied by declaration of non-cooperation in connection with the "meet and confer" requirements of the Local Rules. Berry Decl. Exhibits 68 and 69. 15. Simultaneously, Defendants had been pursuing informal document discovery via the Internet. See generally, Berry Decl. Exhibits 59-66. In response, Plaintiffs even objected to this, and accused F.A.C.T.Net's counsel "of being a co-conspirator in connection with alleged theft, alleged unlawful copying and other alleged violations of Plaintiffs' claimed intellectual property rights." Berry Decl. Exhibit 70. D. Defendants F.A.C.T.Net And Wollersheim's Ex Parte Petition For A Stay In The L. Ron Hubbard Estate Proceedings Prompted Settlement Negotiations Herein Between May And July 1997. 16. On May 7, 1997, F.A.C.T.Net and Lawrence Wollersheim filed an ex parte petition for a stay in the L. Ron Hubbard estate proceedings, and a suspension of the powers of executor Norman F. Starkey pending the filing of a petition seeking certain relief. The ex parte Petition, Supporting Declaration and Exhibits / also provides extensive argument and evidence as to the need for certain depositions herein, such as those of David Miscavige, Norman Starkey, Mary Sue Hubbard, et al. The Court denied the ex parte, because of an absence of exigent circumstances, without prejudice to renew by regularly noticed petition. See generally, Ex Parte Petition and supporting Declaration of Graham E. Berry (filed under seal), Berry Decl. Exhibits 71 and 72. See generally Exhibits 72, 73 and 82. 17. The very next day, Plaintiffs and Defendants "met and conferred," regarding the deposition of David Miscavige and others, at the offices of F.A.C.T.Net's counsel in Los Angeles. At this "meet and confer" Plaintiffs continued to stonewall Defendants' discovery efforts despite being provided with "hundreds of pages of legal analysis, factual analysis, and other matters pertinent to FRCP Rule 26(b)." Berry Decl. Exhibit 74. See also, Berry Decl. Exhibits 75, 77, 78, 81, 82. On May 15, 1997, Defendants advised Plaintiffs that they were preparing a motion to amend the Scheduling Order to reopen discovery, a motion to compel the immediate deposition of David Miscavige, and that the motions would be calendared for hearing on Friday, June 6, 1997, at the discovery status conference in this matter. Berry Decl. Exhibits 77, p. 1, 3. Almost immediately Plaintiffs responded by engaging Defendants in settlement negotiations. / E. The Parties Were Engaged In Settlement Negotiations >From Mid-May 1997 Through Mid-July 1997. 18. Following Defendants' May 5, 1997 statement that they would move "to compel the deposition of David Miscavige" (Berry Decl. Exhibit 68 & 69) and their May 7, 1997 ex parte petition for a stay in the L. Ron Hubbard estate proceedings (Ex Parte Petition and Supporting Declaration (filed under seal), Berry Decl. Exhibit 71 & 72) Plaintiffs expressed their wish to engage in meaningful settlement discussions. Thereafter, Plaintiffs communicated and met with Defendants over a seven week period through to mid-July 1997. Wollersheim Decl. 2. During this period, it was understood that there would be a total litigation and discovery 'standstill' and so Defendants' motions to amend the Scheduling Order and to compel discovery were not pursued. Wollersheim Decl., 2. Plaintiffs' evolving settlement conditions eventually prompted Defendants to break off settlement negotiations. In essence, although Plaintiffs wished to continue with the settlement negotiations, Defendants could not accept certain non-negotiable conditions. Wollersheim Decl. Exhibit A. A mere two weeks later, BPI filed this motion for summary judgment claiming that Defendants had not diligently pursued discovery. III. FURTHER DISCOVERY IS VITAL TO DEFENDANTS' OPPOSITION TO BPI'S MOTION 19. For the reasons stated below, Defendants are entitled to further discover certain information vital to Defendants' opposition to BPI's Motion. Specifically, Defendants should be allowed to further discover information pertaining to (i) when and whether the works at issue were published; (ii) the identity of the authors of the various works; (iii) the circumstances and procedures surrounding the purported copyrighting of any of the various works at issue; and (iv) the circumstances surrounding the purported assignment and transfers of rights and claims by any and all persons, in connection with any of the various works at issue, including L. Ron Hubbard's purported assignment of the various works at issue; (v) the circumstances surrounding the purported testamentary disposition of the various works at issue; (vi) the circumstances surrounding the post-testamentary disposition of the various works at issue; (vii) BPI's previous broad general release of Defendants from the conduct alleged in BPI's Motion; (viii) the actual number of the various works at issue; (ix) how the allegedly infringing works were uploaded on to Defendants' Bulletin Board System in the first place; and (x) the fact of, and extent of, revisions being made to any of the various works at issue.
IV. DEFENDANTS SHOULD BE PERMITTED TO
PURSUE DISCOVERY THEY SEEK
20. F.R. Civ.P. Rule 26(b)(1) permits the discovery that
Plaintiffs have consistently obstructed herein. Both here and in
the related cases, / they have consistently and fallaciously
argued that the L. Ron Hubbard probate case is closed and that
Defendants herein and elsewhere must accept Plaintiffs claims at
face value.
21. In previous exchanges relating to various Defendants'
desire to conduct discovery regarding the legitimacy of BPI's
alleged title to the copyrights at issue (which, in turn, will
determine BPI's capacity to bring this action), Plaintiffs have
offered little more than a conclusory statement that such title
cannot be questioned or attacked beyond its ultimate source in
the Judgment of Final Distribution in the Estate of L. Ron
Hubbard. / As authority, Plaintiffs have cited Heiser v. Super.
Ct. (1979) 88 Cal.App.3d 276, 278, for the proposition that a
judgment in a probate proceeding is conclusive against "the whole
world" and, once final, cannot be challenged by anyone, at any
time, in any forum, for any reason. /
22. Plaintiffs' reliance on Heiser is misplaced. The
correct construction of the expression cited by Plaintiffs is set
forth in Estate of Loring (1946) 29 Cal.2d 423, as follows:
"In Martinovich v. Marsicano, [1902] 137 Cal.
354, 70 P. 459, upon which the [respondents]
also rely, a judgment creditor of a devisee
secured a lien upon that devisee's share of
the estate before the decree of distribution.
This court held that the subsequent
distribution of that share to the devisee did
not discharge the creditor's lien. / It was
pointed out that `The expression in some of
(the) cases to the effect that under the
notice for distribution the whole world is
brought before the court, and that every
person entitled to assert a claim against the
estate must present the same, or lose his
right thereto, is to be construed in
connection with the authority of the court
over the subject-matter before it. The court
has jurisdiction to distribute only the
estate of which the decedent was possessed at
the time of his death, and it is only a claim
against that estate, or for some portion of
it, for which it can make provision in its
decree. As it can exercise this jurisdiction
over only the persons to whom the estate is
to be distributed, it is only these persons
who can be affected by the notice or required
to give it any attention.' 137 Cal. at page
359, 70 P. at page 461. Thus, none of these
cases support the [respondents'] position,
but merely emphasize that, as this court said
in In re Burdick, [1896] 112 Cal. 387, 393,
44 P. 734, 735, `The decree of distribution
is conclusive only as to the succession or
testamentary rights.'"
23. In fact, contrary to Plaintiffs' assertions, the
conclusive effect of an order for final distribution in a
California probate proceeding is further limited by both federal
and state law. The Federal Copyright Act of 1909 contains "will-
bumping" provisions that, with respect to certain copyrights,
override a will's dispositive provisions and instead vest
ownership in statutory successors. In addition, state law
limitations not only allow inquiry into matters not passed on or
approved by a probate court (including the assignments and
agreements by which RTC/BPI allegedly acquired title to the
assets in question), but also permit an order for final
distribution to be set aside and the probate reopened upon
findings of fraud, breach of fiduciary duty, material
misrepresentation, conspiracy, conversion, and concealment.
Alternatively, if a court finds that property was wrongfully
acquired, the court may impose a constructive trust upon such
property and order that distribution be made to the rightful
owners. /
24. As demonstrated below, the discovery sought by
Defendants is necessary and proper to explore numerous
contradictions and discrepancies in the series of transactions by
which BPI allegedly acquired the copyrights at issue. Only by
means of such discovery can Defendants ascertain whether or not
BPI has the capacity to bring this action.
V. STATEMENT OF PERTINENT FACTS
25. The following "Statement of Facts" is based on
Defendants' information and belief:
(a) L. Ron Hubbard ("Decedent") died on January 24,
1986, a resident of the State of California, County of San Luis
Obispo. / Decedent was survived by Mary Sue Hubbard, his wife of
over thirty years, and five of his six children, namely, Diana
Meredith DeWolf Hubbard Ryan, Mary Suzette Rochelle Hubbard,
Arthur Ronald Conway Hubbard, Lafayette Ronald Hubbard, Jr. (also
known as L. Ron Hubbard, Jr., Nibs Hubbard, and Ronald DeWolf),
and Katherine May Hubbard Gillespie. Decedent was predeceased by
his son, Quentin Hubbard. It was common knowledge, then and now,
that Decedent had a daughter from a nonmarital relationship,
namely, Alexis Hollister, who also survived Decedent.
(b) On February 5, 1986, Norman F. Starkey ("Starkey")
filed a Petition for Probate of Will, for Letters Testamentary,
and for Authorization to Administer Under the Independent
Administration of Estates Act with full authority ("Petition for
Probate") and a Petition for Letters of Special Administration
with the Superior Court of California, County of San Luis Obispo
(the "Probate Court"), in Case No. 20885, the Estate of L. Ron
Hubbard, also known as Lafayette Ronald Hubbard (the "Estate").
(c) On February 5, 1986, the Probate Court approved
the appointment of Starkey as Special Administrator of the Estate
and issued the Order Appointing Special Administrator and the
Letters of Special Administration, with general powers and with
special powers to continue the operation of any business owned in
whole or in part by the Estate. The nature of Starkey's
activities as Special Administrator are unknown to Defendants.
He has not been discharged as the Executor of the Estate.
(d) Decedent's will dated January 23, 1986 (the
"Will"), purportedly signed the day before his death, was
admitted to probate by Minute Order on February 18, 1986. / On
that date, the Probate Court also approved the appointment of
Starkey as Executor of the Will and issued the Order Appointing
Executor and Authorizing Independent Administration of Estate
with full authority and the Letters Testamentary.
(e) The terms of the Will included the following:
(i) Decedent expressly disinherited his son,
Lafayette Ronald Hubbard, Jr., and his predeceased son,
Quentin Hubbard, and their issue. In Article Seventh,
Decedent stated: "Further, I have intentionally omitted
to provide herein for ALEXIS HOLLISTER, who may pretend
to be my heir, but in fact is not and never has been my
heir." / Decedent's daughter, Katherine May Hubbard
Gillespie, was not disinherited in the Will, although
she had been disinherited in at least two prior
wills. /
(ii) The Will was a "pour-over" will. It passed
Decedent's estate to an inter vivos trust, called the
"Author's Family Trust-B," established on January 23,
1986, pursuant to a Trust Agreement by and between
Decedent, as Trustor, and Starkey, as Trustee (the
"Family Trust"). In Article Fifth, Decedent, referring
to the Family Trust, stated: "I have also provided
therein for certain benefits for my wife."
(iii) Article Third recites Decedent's intention
"to dispose of all property, whether real, personal or
mixed, of whatsoever kind and character . . ."
(iv) In Article Sixth, Decedent gives to the
Trustee of the Family Trust, among other things, his
"entire right, title, and interest in the nineteen (19)
year period of extended copyright protection and in all
copyright rights provided thereby in all copyrightable
works written or created by me and/or assigned to me
prior to January 1, 1978 . . ." and his "entire right,
title, and interest in the right or ability to renew,
or to file renewal claims for, all copyrights on or in
all copyrightable works written or created by me and/or
assigned to me prior to January 1, 1978."
(v) In Article Ninth, Decedent nominated Starkey
as Executor.
(f) Starkey, as Executor, filed his Report of Executor
on Waiver of Accounting; for Allowance of Attorney's Fees for
Ordinary Services and Petition for Final Distribution on December
15, 1988 ("Executor's Report and Petition for Final
Distribution"), in which he represented under penalty of perjury,
among other things, that:
(i) No preliminary distributions had been made;
(ii) The whole of the Estate consisted of
Decedent's separate property; and
(iii) The Estate should be distributed to Starkey,
as Trustee of the Family Trust, in accordance with the
terms of the Will.
Starkey, as Executor, prayed for an order from the Probate Court
that, among other things, "[a]ll the acts and proceedings of
petitioner as executor" be confirmed and approved and the Estate
be distributed to Starkey, as Trustee of the Family Trust.
(Emphasis added.) Notice was given only to Starkey, as Executor
and as Trustee of the Family Trust.
(g) On January 3, 1989, the Probate Court entered its
Judgment of Final Distribution. The Court found, among other
things, that:
(i) All of the allegations of the Executor's
Report and Petition for Final Distribution were true;
and
(ii) The Estate consisted entirely of Decedent's
separate property.
In its order, the Probate Court approved "all acts of the
executor relating to the matters in the petition and report" and
ordered the distribution of the Estate to Starkey, as Trustee of
the Family Trust. (Emphasis added.)
(h) Starkey has not been discharged as Executor. /
VI. THE DISAPPEARANCE OF L. RON HUBBARD, THE PURPORTED PRE-TESTAMENTARY ASSIGNMENTS AND OTHER FRAUDULENT AND PURPORTED DEALINGS WITH THE DISPUTED WORKS 26. In 1980, Mr. Hubbard went into hiding as a result of the plethora of actual and threatened criminal, civil and I.R.S. litigation that was surrounding him. During this time, whatever contact Mr. Hubbard had with the outside world was almost exclusively through David Miscavige and even that contact is in doubt as a result of Vicki Aznaran's testimony that Mr. Miscavige told her he never saw Mr. Hubbard during the years he claimed to have witnessed his signature as a notary public. Berry Decl. Exhibit 94, p. 229:10-230:10. Moreover, as explained on page 20 of the concurrently filed F.R. Civ. P. Rule 56(f) motion, significant evidence supports substantial and numerous reasons why Defendants should be permitted to engage in the limited discovery described on pages 15-25 therein. /
VII. THE SUSPICIOUS CIRCUMSTANCES OF L. RON HUBBARD'S DEATH, PURPORTED EXECUTION OF THE ALLEGED LAST WILL AND TESTAMENT PURPORTEDLY DATED JANUARY 23, 1987, THE IMPROPER, UNETHICAL, FRAUDULENT AND CRIMINAL ADMINISTRATION OF THE ESTATE OF L. RON HUBBARD 27. These matters bear directly upon the validity of the testamentary and non-testamentary assignments and dispositions of the alleged rights giving rise to the copyrights claims herein. In this regard, the Court is respectfully referred to the concurrently filed (under seal) Ex Parte Petition for stay in proceedings and suspension of powers of personal representative, etc., p. 18:23-28:24 and to Exhibit 71 to the Supporting Declaration of Graham E. Berry filed concurrently herewith.
VIII. "WILL BUMPING" PROVISIONS OF THE 1909 COPYRIGHT ACT OVERRIDE TO VEST TITLE IN STATUTORY SUCCESSORS A. Summary of Law. 28. A substantial number of the copyrights at issue here are subject to the Copyright Act of 1909, § 23, 35 Stat. 1075 (1909) (the "1909 Act"). The 1909 Act governs copyrights to works created prior to January 1, 1978. Works created on or after that date are subject to the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq. (1978) (the "1976 Act"). / 29. The 1909 Act provides an initial term of protection of 28 years from the date of a particular work's publication. At the end of the initial term, the author, if then living, or the author's successors as determined by the 1909 Act, are entitled to renew the copyright for a second term of protection lasting another 28 years, plus 19 additional years added by the 1976 Act. / 30. If an author survives the initial term under the 1909 Act, then, absent a prior transfer of the renewal rights, he or she is the only person entitled to renew the copyright and thereafter may convey the copyright free of restrictions. However, if the author conveys the renewal rights during the initial term and lives into the renewal period, then the author is bound by that conveyance and cannot exercise the renewal rights. Fred Fisher Music Publishing Co. v. M. Witmark & Sons (1943) 318 U.S. 643. Nonetheless, if a court finds that a particular conveyance was executed "under oppressive circumstances," it may refuse to enforce the conveyance. Id. 31. On the other hand, if an author dies before the renewal period, the author's conveyance of the copyright or renewal rights, whether inter vivos or testamentary, is sharply curtailed under the 1909 Act. Notwithstanding any terms to the contrary in the instrument of transfer or will or other testamentary document, such conveyance is effective only as to the remainder of the initial term; the renewal rights and the enjoyment of the second term of protection belong exclusively to the then living successors determined by the 1909 Act. Miller Music Co. v. Charles N. Daniels, Inc. (1960) 362 U.S. 373. / Similarly, if an author assigns a copyright during the author's lifetime, but the work is not actually published until after the author's death, the author is treated as having assigned the copyright for the initial term only; renewal rights and second-term protection are owned by the statutory successors. Bartok v. Boosey & Hawkes, Inc. (2d Cir. 1975) 523 F.2d 941. 32. Under the 1909 Act, the owners of the renewal rights to a copyright are determined at the commencement of the renewal period. Section 24 provides that the renewal rights belong to: ". . . the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin . . ." 33. The widow, widower and children of the author constitute a single class of successors. DeSylva v. Ballentine (1956) 351 U.S. 570. A child born out of wedlock is counted as a member of the class, providing that such child is treated as an heir under the relevant state's intestacy law. Id. If fewer than all members of a successor class exercise their renewal rights, the renewal is valid and inures to the benefit of all. Silverman v. Sunrise Pictures Corp. (2d Cir. 1923) 290 F. 804. If an author dies testate during the initial term, leaving no surviving spouse or children, then the only person who may renew the copyright is the executor of the author's estate and not the next of kin. Fox Film Corp. v. Knowles (1923) 261 U.S. 326. However, if no one is then acting as executor, the next of kin may exercise the renewal rights; if the copyright is not renewed by the next of kin, then the work falls into the public domain. Silverman v. Sunrise Pictures Corp. (2d Cir. 1923) 290 F. 804; Capano Music v. Myers Music, Inc. (S.D.N.Y. 1985) 605 F. Supp. 692. 34. Although a third party may acquire the renewal rights to a particular work from the apparent statutory successors during the initial term, the assignment of such rights likely will be deemed valid only if the conveyance was supported by adequate consideration, the assignors received full disclosure of their legal rights by independent counsel, and there is no evidence of fraud, undue influence, overreaching or other "oppressive circumstances." Nevins, 69-70; fn.80 (referring to the invalidation of one such conveyance where no consideration was paid). 35. If rights to a work protected under either the 1909 Act or the 1976 Act are transferred by an author during his or her lifetime on or after January 1, 1978, then, during specified periods, the author's statutory successors may extinguish the transferee's interest in the work through the exercise of a right of termination. 1976 Act §§ 203(a) and 304(c). However, no rights of termination apply to transfers made by will. B. Application. 36. Due to the "will-bumping" provisions of the Copyright Act of 1909, Defendants believe that title to a substantial number of the copyrights at issue may not have been vested in RTC at the time of the events that gave rise to this action, and therefore were not lawfully assigned to BPI. 37. As demonstrated above, the renewal rights to all copyrights subject to the 1909 Act in their initial term at the time of Decedent's death did not pass under Decedent's Will, nor could such renewal rights or any interest in the second term have been licensed to RTC by Starkey, as Executor, in the License Agreement, dated September 17, 1987. Rather, these rights belonged to such of Mary Sue Hubbard and Decedent's children who were living at the commencement of the renewal period for each particular copyright. If any one of the successor class exercised the renewal rights, then such exercise was deemed to have been made on behalf of all of them and inured to the benefit of all of them, including Decedent's son, Lafayette Ronald Hubbard, Jr., if he was then living, regardless of Decedent's disinheritance of him in the Will. Similarly, if Alexis Hollister, reputed to be Decedent's out-of-wedlock daughter, was living at the time of any such renewal period, then she also could have exercised such right and shared in the royalties and other proceeds, despite Decedent's disinheritance of her (provided that the requisite parent/child relationship could be established under the California Uniform Parentage Act, commencing with Family C. § 7600 /). 38. Although Starkey, as Executor or Trustee, or RTC obtained October 1986 assignments of the renewal rights from Decedent's family, including Alexis Hollister, the circumstances and terms of such assignments must be examined to ascertain whether valid conveyances were made. On the other hand, if no member of the successor class exercised the renewal rights, leaving Starkey, if he was then serving as Executor, to exercise such rights, then inquiry must be made as to whether the family was unduly influenced, coerced, misled or threatened to prevent their exercise of such rights. 39. Defendants seek information through proper discovery relating to the copyrights subject to the 1909 Act and any purported conveyance of such copyrights and/or the renewal rights to such copyrights. David Miscavige, who held senior positions at Author Services, Inc., the organization responsible for managing Decedent's literary and business affairs, from 1982 to early 1987, has unique percipient knowledge relevant to these copyrights, and should be required to submit to deposition. Furthermore, Defendants seek to take the depositions of Starkey, in his capacities of Executor of the Will and Trustee of the Family Trust, and Mary Sue Hubbard as a member of the successor class under the 1909 Act, each of whom is likely to possess unique percipient knowledge relating to these issues.
IX. INCONSISTENCIES, DISCREPANCIES AND
UNORTHODOX ACTIONS OF EXECUTOR GIVE RISE TO
INFERENCES OF POSSIBLE FRAUD AND/OR OTHER MISCONDUCT
40. Testimony and an objective examination of documents
relating to the inter vivos and testamentary transfers by which
RTC purportedly acquired and assigned title to the assets at
issue give rise to inferences of possible fraud and/or other
misconduct. / Defendants are entitled to test, through proper
discovery, whether BPI obtained its alleged rights through
legitimate means, or whether the assets at issue equitably belong
to others.
A. Judgment of Final Distribution Does Not Bar Further
Proceedings.
41. Plaintiffs have claimed that the Judgment of Final
Distribution in the Estate conclusively established title to all
property passing from Decedent, but they disregard important
limitations. An order for final distribution in a California
probate proceeding merely passes whatever title the decedent had
at death; it does not determine that the decedent had any title
to the property distributed (Shelton v. Vance (1951) 106
Cal.App.2d 194; Romagnolo v. Romagnolo (1964) 230 Cal.App.2d
315), unless title to such property was specifically adjudicated
(Prob. C. § 9860 (formerly § 851.5)) /. An order for final
distribution is binding on all interested parties only as to the
matters that it determines. Stevens v. Torregano (1961) 192
Cal.App.2d 105. Such order is not conclusive as to contracts or
conveyances made by distributees to others. Kingsbury v. Ross
(1933) 217 Cal. 484. Even after an order for distribution
becomes final, a court may exercise its equitable powers to set
aside such order and reopen the probate upon proof of extrinsic
or collateral fraud and breach of duty arising from a fiduciary
or confidential relationship. Estate of Sanders (1985) 40 Cal.3d
607 (e.g., executor substituted himself as primary beneficiary in
new will, concealed from decedent's family which will was
submitted for probate, and misrepresented to decedent's family
that there was no need for them to become involved in settlement
of estate). Alternatively, even when fraud is discovered many
years after the decedent's death and the close of probate, the
delayed accrual rule permits a court to exercise its equitable
powers to impose a constructive trust upon assets fraudulently
obtained and order distribution to the rightful owners. Parson
v. Tickner (1995) 31 Cal.App.4th 1513 (noting that a cause of
action for fraud accrues upon the discovery of facts constituting
the fraud, at which time the three-year limitations period begins
to run).
42. Here, neither the alleged inter vivos transfers to RTC,
nor the assignments and agreements by which Starkey, as Executor
or Trustee, conveyed property to RTC and BPI, nor the
concurrences in such inter vivos and testamentary transfers
allegedly made by Decedent's heirs and beneficiaries and the
Church of Spiritual Technology ("CST") were encompassed by the
Judgment of Final Distribution, which merely and expressly
approved "all acts of the executor relating to the matters in the
petition and report." Because none of the transfers to RTC or
alleged subsequent concurrences by Decedent's heirs and
beneficiaries and CST were included in the Executor's Report and
Petition for Final Distribution, none of those matters was
rendered conclusive by the Judgment of Final Distribution;
consequently, they remain open to inquiry and challenge by
Defendants and other interested parties.
43. Furthermore, testimony and objective evidence of
inconsistencies, discrepancies and unorthodox actions by Starkey,
as Executor and Trustee, by Decedent's personal physician, by
certain of Decedent's attorneys, and by other Scientologists,
suggest a reasonable inference of extrinsic or collateral fraud,
breach of duty arising from a fiduciary or confidential
relationship, conversion, concealment, conspiracy, material
misrepresentation and/or other misconduct, any and all of which
affect the propriety of RTC's alleged title.
B. Execution of Decedent's Will.
44. The circumstances surrounding Decedent's purported
execution of the Will raise questions as to whether Decedent was
the victim of fraud or undue influence or lacked testamentary
capacity at the time of such execution, any of which would
invalidate the will and affect RTC's purported title.
45. Evidence tending to show undue influence and/or fraud
include (1) the existence of a confidential relationship between
the testator and the person(s) allegedly exerting undue
influence; (2) propensity to be unduly influenced from old age,
senility, mental infirmity and the like; (3) execution of
testamentary documents unduly benefitting the person(s) allegedly
exerting undue influence; (4) unnatural testamentary provisions;
(5) testamentary provisions apparently at odds with testator's
stated intentions; (6) close relationship with person(s)
allegedly exerting undue influence and opportunity for such
exercise; (7) participation by primary beneficiaries in procuring
execution of testamentary instruments; and (8) vulnerable state
of mind because of isolation, loneliness, etc. Estate of Graves
(1927) 202 Cal. 258; Estate of Mann (1986) 184 Cal.App.3d 169;
Estate of Sarabia (1990) 221 Cal.App.3d 599; Estate of Yale
(1931) 214 Cal. 115. Evidence of a lack of testamentary capacity
includes general mental incompetence (e.g., testator's inability
to understand the nature of the testamentary act or the nature
and situation of his or her property and the inability to recall
the natural objects of the testator's bounty) and the existence
of a mental disorder (e.g., symptoms include hallucinations or
delusions which lead the testator to devise his or her property
in a way that he or she otherwise would not). Estate of Mann
(1986) 184 Cal.App.3d 169; Estate of Smith (1926) 200 Cal. 152.
46. Several of the factors described in the immediately
preceding paragraph are present in this case:
(a) Decedent had been living in extreme isolation
for several years prior to his death. (He had been
separated from Mary Sue Hubbard for many years.) /
Only "trusted" Scientologists knew his whereabouts and
how to communicate with him. Indeed, David Miscavige
was allegedly the sole communication conduit between
Mr. Hubbard and the Scientology organization he
continued to control. Effectively, David Miscavige
controlled (and was able to manipulate) the information
that would reach Mr. Hubbard.
(b) Decedent had contact only with
Scientologists, and Scientologists have unduly
benefitted from the Estate.
(c) The dispositive provisions of the Will and
the Family Trust are contradictory. In Article Fifth
of the Will, Decedent, referring to the Family Trust,
stated: "I have also provided therein for certain
benefits for my wife." This statement, made under
penalty of perjury and witnessed, is consistent with
Decedent's prior stated intentions about Mary Sue
Hubbard under penalty of perjury in his Declaration,
dated May 15, 1983: "Although we are presently apart,
we remain husband and wife. She is fully supported by
me, and she, unlike DeWolf, is fully provided for in my
Will." However, these two statements made by Decedent
are contradicted by the following statement made by
Starkey, as Trustee of the Family Trust, as "Assignor,"
in a document entitled "Assignment and Assumption
(RTC)," dated November 29, 1993: "The agreement by and
between Assignor and L. Ron Hubbard, dated January 23,
1986, establishing Author's Family Trust-B, requires
distribution to [Church of Spiritual Technology] of all
assets held in trust by Assignor." (Emphasis added.)
The obvious inference is that the Family Trust
contained no provisions for Mary Sue Hubbard or his
children, / despite Decedent's previously stated
intentions. It seems unnatural for Decedent to
disinherit Mary Sue Hubbard, whom he fully supported
during his lifetime.
(d) The estate plan does not conform to
Decedent's intent as described by Decedent's estate
planning attorney, Sherman Lenske. In Paragraph 3 of
Mr. Lenske's Declaration dated November 12, 1995, he
states that he "represented Mr. L. Ron Hubbard in all
aspects of estate planning from the time he engaged me
as his attorney in approximately April 1981 until his
death on January 24, 1986, and also represented the
Executor of his Estate through the probate of his Will,
which was concluded in January 1989. / All of the
documents effectuating the estate plan were drafted
either by me or under my supervision, at the direction
of Mr. Hubbard." Later, in Paragraph 10 of the
Declaration, Mr. Lenske states:
"As one part of Mr. Hubbard's estate
planning, he directed that his U.S. rights to
the Advanced Technology, exclusive of
copyrights, be conveyed to RTC at that time
[referring to the time of the May 16, 1982
Assignment] and the remainder would be
transferred to RTC following his death. The
first part of this objective was accomplished
in May 1982 when Mr. Hubbard signed the
Advanced Technology Assignment, and the
remainder was accomplished on November 30,
1988 when Norman F. Starkey, as Executor of
the Will of L. Ron Hubbard, assigned the
remainder of Mr. Hubbard's rights to the
Advanced Technology, other than the
copyrights, to RTC."
Assuming that Mr. Lenske's description of Decedent's
testamentary intent is accurate, it appears that
Decedent's intent to benefit RTC and BPI was fixed as
far back as 1982. One wonders why, then, Mr. Lenske
drafted Decedent's estate plan so that all of
Decedent's assets would pass through probate (thereby
incurring unnecessary court costs, probate referee's
fees, attorneys' fees, etc.) to a trust (strangely
named the "Author's Family Trust-B" although containing
no provisions for Decedent's family /) that required
distribution of all trust assets to CST. Moreover, one
wonders why Mr. Lenske waited until Decedent was
suffering from his last illness, disabled by a
devastating stroke and under the influence of
hallucinatory and psychiatric drugs (indeed, on the
brink of death) before having the documents purportedly
executed.
(e) There are significant differences between
Decedent's initials and handwriting on the Will dated
January 23, 1986, and a document purported to be a
prior will of Decedent, dated May 10, 1982.
Specifically, on both documents, a line has been typed,
with the initials "L.R.H." typed underneath the line,
in the lower, right corner of every page. / On both
documents, initials have been written in the lower,
right corner on every page, but these initials differ
greatly between the two documents. In the 1982
document, the written initials extend far beneath the
line and over the typed initials, while in the 1986
document, the written initials never extend beneath the
line on the first 11 pages, except for the initials on
pages 3 and 9, which barely extend beneath the line.
Further, the initials that appear on pages 12 and 13 of
the 1986 document (the signature pages for the testator
and the witnesses, respectively) were clearly not
written by the same hand that wrote the initials on the
previous 11 pages. Finally, the testator's signatures
on the two documents do not appear to have been written
by the same hand. Unfortunately, Defendants cannot
compare the dispositive provisions of the two documents
because a blank page has been substituted in
Defendants' copy of the 1982 document for page 3, where
such provisions appear. However, the concurrently
filed declaration of Questioned Document Examiner
Patricia Fisher indicates serious questions about the
authenticity of these signatures, raising the specter
of a terrible forgery and fraud against not only the
Hubbard heirs but also the State and Federal
Governments and taxing agencies.
(f) Attached as Exhibit A to the Declaration of
Graham E. Berry in Support of Ex Parte Petition (filed
under seal herein) is a copy of the Certificate of
Death, Coroner Case Information Sheet (Supplementary
Report), Coroner's Investigation Report, Sheriff's
Office Supplementary Report, Coroner Case Information
Sheet, Certificate of Religious Belief, and Post-Mortem
Examination documents. These documents reveal the
following information: According to Decedent's
personal physician, Dr. Gene Denk, who had lived with
Decedent for the past two years, Decedent had displayed
signs of Dysphrasia for eight days before he died and
had suffered a stroke about seven days before he died.
Decedent's Will and the Family Trust were dated
January 23, 1986, the day before he died. Although
Decedent was found dead at approximately 8:00 p.m. on
January 24, 1986, the death was not reported until a
funeral chapel was contacted at 7:30 a.m. the next
morning. The excuse offered for the delay by Dr. Denk
and Earle Cooley, an attorney, who seem to be the only
persons present at Decedent's home when the funeral
chapel was contacted, / was that "they wanted to get
the will together and expedite the procedures for
cremation of Mr. Hubbard's remains." / Upon hearing
the date of the Will and Dr. Denk's report of the
Decedent's clinical history, Jon Hines, the Chief
Deputy Coroner, immediately questioned whether Decedent
had been in sound mind at the time he signed the Will
since Decedent's clinical history indicated possible
neurological problems. Mr. Hines later compared the
1986 Will with a copy of Decedent's 1982 will and the
1983 codicil thereto, and remarked in his report that
"The contents of the 1982 Will were basically the same
as the most recent Will." / The post-mortem
examination revealed 10 recent needle marks in the
Decedent's gluteal area. Indeed, Mr. Hubbard's doctor
had prescribed and administered a number of drugs to
Mr. Hubbard, including the psychiatric drug Hydroxyzine
(Vistaril) which is usually administered in combination
with other hypnotic, psychotic and sedating narcotics
and restricted drugs. One wonders if Mr. Hubbard would
have consented to receiving these mind-altering drugs.
Mr. Hubbard had been vehemently and publicly opposed
to any use of psychiatric drugs whatsoever.
47. Precluded from performing an autopsy on the basis of
Decedent's religious beliefs set forth in a witnessed document
entitled "Certificate of Religious Belief," dated January 20,
1986, 3 days before death, a toxicology examination was conducted
instead. However, the claim that the autopsy violated religious
belief was blatantly a bogus one. Wollersheim Decl, 2.
48. Plaintiffs allege that title passed to Plaintiff either
through the May 16, 1982 Assignment and the Addendum thereto, or
if not, then pursuant to an exclusive License Agreement, dated
September 17, 1987, a document entitled "Advanced Technology
Covenant-Estate/RTC," dated November 30, 1988, and a document
entitled "Addendum to Advanced Technology Covenant-Estate/RTC,"
dated May 13, 1991," executed by Starkey, as Executor or as
Trustee of the Family Trust. However, if the Will was procured
by fraud or undue influence, or is invalid due to Decedent's lack
of testamentary capacity, then Starkey's actions as Executor and
as Trustee must be reexamined in discovery and by this Court.
Defendants believe that such examination will conclude that
Starkey lacked the authority to transfer assets to Plaintiffs,
thereby defeating BPI's claims to title and its complaint herein.
49. In light of the reasonable questions raised by the
foregoing as to the validity of the Will, Defendants believe that
it is necessary and proper to take the depositions David
Miscavige (as head of RTC and CST at the time of Decedent's
death), of Norman F. Starkey, Mary Sue Hubbard, Patrick D.
Broeker (as a witness to both the 1982 Will and the 1986 Will),
to inquire into the circumstances of Decedent's death, execution
of the Will, Decedent's testamentary intent, and mental and
physical health and all of the other relevant surrounding
circumstances. Ex Parte Petition, etc., pp. 12:26-28:6, 28:27-
29:5, 32:28-33:16.
C. Probate of Decedent's Will.
50. Even in the absence of a timely action, proof of
extrinsic fraud or breach of duty arising from a fiduciary or
confidential relationship warrants a court's exercise of its
equitable powers to set aside orders and decrees in probate
proceedings. Estate of Sanders (1985) 40 Cal.3d 607. The
Sanders court noted that "[t]he courts are particularly likely to
grant relief from a judgment where there has been a violation of
a special or fiduciary relationship." Id. at 615. "The
fiduciary relationship carries a duty of full disclosure, and
application of the discovery rule `prevents the fiduciary from
obtaining immunity for an initial breach of duty by a subsequent
breach of the obligation of disclosure.'" Parsons v. Tickner
(1995) 31 Cal.App.4th 1513, 1526 (citing Neel v. Magana, Olney,
Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 189).
51. As demonstrated below, testimony and objective evidence
of inconsistencies, discrepancies and unorthodox actions by
Starkey, as Executor and Trustee, by CST, as a charitable
organization and the only beneficiary of the Family Trust, and by
RTC suggest possible extrinsic or collateral fraud, breach of
duty arising from a fiduciary or confidential relationship,
conversion, concealment, conspiracy, material misrepresentation
and/or other misconduct, any and all of which affect the
propriety of RTC's alleged title. See generally, Hubbard's
Successors Have A Long History of Criminal Conduct, Tortious
Conduct And Of Abuse Of The Court System Generally. Ex Parte
Petition, etc., p. 29:7-32:19. See also, Berry Decl., Exhibits
48 and 87.
(a) Noncompliance With Notice Requirements Violates
Due Process and Deprives Probate Court of
Jurisdiction.
52. If an order made by a probate court is based upon
defective notice, then such order exceeds the probate court's
jurisdiction and is open to collateral attack. Mennonite Bd. of
Missions v. Adams (1983) 462 U.S. 791; Tulsa Prof. Collection
Services, Inc. v. Pope (1988) 485 U.S. 478; Estate of Jenanyan
(1982) 31 Cal.3d 703. In Decedent's Estate, proper notice
required not only compliance with former Probate Code § 328
(applicable in 1986), requiring that each heir of the testator,
among others, receive notice of the hearing on the Petition for
Probate, but also with constitutional minimum due process
standards intended to ensure that no one is deprived of property
without due process of law. To satisfy such minimum due process
standards, notice must also be served upon each interested person
(including heirs, beneficiaries and potential claimants) whose
whereabouts are known or reasonably ascertainable. Mullane v.
Central Hanover Bank & Trust Co. (1950) 339 U.S. 306; Tulsa Prof.
Collection Services, Inc. v. Pope (1988) 485 U.S. 478; Mennonite
Bd. of Missions v. Adams (1983) 462 U.S. 791. Such notice may be
made by personal service or by mail to a residence or mailing
address, or, if a person entitled to notice cannot be found, to
the county seat of the county where the probate proceeding is
pending. Former Prob. C. § 328.
53. The following objective facts suggest that notice may
not have been properly given in the Estate, possibly leaving the
Judgment of Final Distribution open to attack:
(a) Starkey signed the Petition for Probate under
penalty of perjury, declaring that "the foregoing is
true and correct." Starkey's declaration applied to
Item 8 of the Petition for Probate, which consists of a
statement that "Listed in attachment 8 are the names,
relationships, ages, and residence or mailing addresses
of all persons mentioned in decedent's will and
codicils, whether living or deceased, . . ." (Emphasis
added.) However, Alexis Hollister, commonly known to
be Decedent's out-of-wedlock daughter and prominently
mentioned in the disinheritance clause of the Will, is
not listed in attachment 8 of the Petition for Probate.
The obvious inference is that Alexis Hollister did not
receive notice of the probate proceedings due to
Starkey's active concealment.
(b) In the Coroner's Investigation Report, Jon
Hines, the Chief Deputy Coroner, wrote that Earle
Cooley, Decedent's attorney, informed him that Norman
F. Starkey was named as Executor in the Will and that
Starkey's address was "1404 N. Catalina St., Hollywood,
CA." As evidenced in attachment 8 to the Petition for
Probate, Starkey served notice upon three of Decedent's
children at his own address--1404 No. Catalina, Los
Angeles, CA 90029.
(c) Starkey served notice upon Mary Sue Hubbard
at P.O. Box 85130, Los Angeles, CA 90072. Oddly,
service upon one of Decedent's daughters, Katherine May
Hubbard Gillespie (who had been disinherited in at
least two of Decedent's prior wills), was made "in care
of" the same post office box.
(b) Mary Sue Hubbard's Possible Equitable Ownership in
Assets Now Held by Plaintiff.
54. As noted above, Article Third of the Will recites
Decedent's intention "to dispose of all property, whether real,
personal or mixed, of whatsoever kind and character . . ."
Noticeably absent is a statement regarding the community
property, quasi-community property and/or separate property
character of the Estate, or the existence of a marital or
premarital property agreement. Such a statement typically
appears in a married testator's will, especially when, as here,
the marriage was of long duration and the value of the Estate,
appraised as of January 24, 1986, exceeded $26,300,000. This
appraisal is suspiciously low given the fact that it was made by
the estate beneficiaries themselves. Even a layman can clearly
see this. Berry Decl., Exhibit 87.
55. Although the language of Article Third of the Will does
not preclude the existence of community property, Starkey, as
Executor, alleged to the Probate Court in Paragraph 11 of the
Executor's Report and Petition for Final Distribution that "The
whole of the estate is decedent's separate property." The
Probate Court found accordingly in its Judgment of Final
Distribution.
56. One wonders how the entire Estate was determined to be
Decedent's separate property, whether Mary Sue Hubbard was
consulted in that determination, and whether Mary Sue Hubbard was
advised by independent counsel as to the possible existence of
community property or quasi-community property. If the Estate
actually consisted in whole or in part of community property or
quasi-community property, then Decedent did not have the power to
convey Mary Sue Hubbard's one-half interest therein, and such
property was improperly included as Estate property.
Consequently, Mary Sue Hubbard may be the equitable owner of a
portion of the property now claimed by Plaintiff.
57. One also wonders whether Mary Sue Hubbard was advised
by independent counsel of her right to "recapture" one-half of
any quasi-community property transferred by Decedent without her
consent during his lifetime. Prob. C. § 102. If, for example,
any of the assets conveyed pursuant to the May 16, 1982
Assignment and the Addendum thereto was quasi-community property,
then Mary Sue Hubbard may be the equitable owner of a portion of
such property notwithstanding the purported October, 1986
assignment that David Miscavige had her execute.
58. Finally, it is clear from Article Fifth of the Will and
from Decedent's Declaration dated May 15, 1983, that Decedent
intended to provide for Mary Sue Hubbard. But, according to
Starkey, the terms of the Family Trust directed that the entire
trust estate was to be distributed to CST instead. Although Mary
Sue Hubbard was married to Decedent at the time that he executed
the Will, she may have been able to prevail in claiming the share
of a pretermitted spouse under Probate Code § 6560. That section
awards an intestate share to a surviving spouse who was not
married to a decedent at the time Decedent executed a will and
who was not provided for in the will through oversight, accident,
inadvertence or mistake. Whether or not Mary Sue Hubbard was
aware of her rights and what representations may have been made
to her on this subject remain unknown, but it is possible that
she may be the equitable owner of up to one-half of Decedent's
separate property notwithstanding the purported October, 1986
assignment that David Miscavige had her execute.
(c) Starkey, as Executor, Concealed From the Probate
Court the Assignment of Estate Assets to RTC to
Avoid Court Inquiry.
59. Probate Code § 1020.1 (operative July 1, 1988) provides
that, the court, prior to distribution of any estate property to
any assignee or transferee of any beneficiary pursuant to the
beneficiary's agreement, request or instructions, may
"inquire into the consideration . . . and
into the circumstances surrounding the
execution of such assignment, transfer,
agreement, request or instructions and if it
finds that the fees, charges or consideration
paid . . . is grossly unreasonable or that
any such assignment, transfer, agreement,
request or instructions was obtained by
duress, fraud or undue influence it may
refuse to make distribution pursuant thereto
except upon such terms as it deems just and
equitable."
60. Despite the terms of the Will directing distribution of
all Estate property to the Family Trust, Starkey, as Executor,
purportedly gave RTC all foreign rights in the Advanced
Technology by a document entitled "Advanced Technology Covenant--
Estate/RTC," dated November 30, 1988, as modified by an Addendum
thereto, dated May 13, 1991. / However, Starkey failed to
disclose this assignment to the Probate Court prior to the
conveyance, as required by Probate Code § 1020.1. Nor did he
make any such disclosure in the Executor's Report and Petition
for Final Distribution. In fact, he alleged that "[n]o
preliminary distributions have been made," leaving the Probate
Court with the impression that all assets of the Estate were
still in his possession. He continued the pretense by praying
that all estate assets be distributed to himself, as Trustee of
the Family Trust, and even listed such assets for the Probate
Court as though all such assets still belonged to the Estate.
The obvious inference is that Starkey did not want this
conveyance to be examined too closely. / /
(d) Starkey, as Executor, Failed to Provide CST With
Notice of Assignment and Notice of Executor's
Report and Petition for Final Distribution.
61. Probate Code § 10532 (operative July 1, 1988) requires
the personal representative to give Notice of Proposed Action to
interested persons prior to entering into any contract that by
its terms will not be fully performed within two years. Such
Notice must set forth the material terms of the contract and
identify the persons involved in the contract, so that an
interested person has an opportunity to object to the proposed
contract. Prob. C. § 10585. Probate Code § 1208 (operative
July 1, 1988) provides that, if the personal representative and
the trustee are the same person, then notice shall be given to
the beneficiaries of the trust instead of the trustee.
62. There is no indication that Starkey, as Executor,
complied with Probate Code §§ 1208 and 10532. In fact, in
Paragraph 23 of the Declaration of Sherman Lenske, dated November
12, 1995, Mr. Lenske asserts that "[t]he exclusive copyright
license and the assignment of November 30, 1988 were confirmed by
the primary beneficiary of Mr. Hubbard's estate, Church of
Spiritual Technology (CST), after the estate was distributed."
(Emphasis added.) Furthermore, Starkey failed to provide CST
with notice of the hearing on the Executor's Report and Petition
for Final Distribution. According to the Notice of Hearing,
filed December 15, 1988, notice was served only upon Starkey
himself, as Executor and as Trustee of the Family Trust. Again,
one may draw the inference that Starkey wanted to accomplish his
purposes without inquiry from anyone. Berry Decl., Exhibit 87.
(e) CST's Joining in Assignment of Assets to RTC
Constitutes a Breach of Charitable Trust.
63. As stated in the immediately preceding paragraph, CST
confirmed the assignment of all the assets of the Estate to RTC.
In doing so, CST breached its trust to use all assets received
by it for the persons and purposes for which it was formed, and
likely jeopardized its tax-exempt status, as well. See San Diego
Council, Boy Scouts of America v. City of Escondido (1971) 14
Cal.App.3d 189. Standing to enforce a California charitable
trust generally belongs to the California Attorney General, but
"[t]here is no rule or policy against supplementing the Attorney
General's power of enforcement by allowing other responsible
individuals to sue in behalf of the charity. The administration
of charitable trusts stands only to benefit if in addition to the
Attorney General other suitable means of enforcement are
available." Id. at 195.
64. If CST's affirmance of the assignment of assets to RTC
was in violation of its charitable purposes, then it is possible
that CST is the equitable owner of the assets in dispute.
(f) Discrepancy Between Law and Motion Calendar and
Judgment of Final Distribution.
65. The Law and Motion Calendar for January 3, 1989, notes
that the Executor's Report and Petition for Final Distribution
was heard before Judge William R. Fredman. However, the Judgment
of Final Distribution states that such hearing occurred before
the Honorable Barry Hammer, Judge Presiding. Here, again, is an
unexplained discrepancy in the Probate administration.
X. DEFENDANTS ARE ENTITLED TO FURTHER DISCOVER INFORMATION PERTAINING TO BPI"S PREVIOUS RELEASE OF DEFENDANTS FROM THE CONDUCT ALLEGED IN BPI'S MOTION 66. In settlement of a previous action entitled Church of Scientology v. Steven Fishman and Uwe Geertz, United States District Court, Central District of California, Case No. CV 91-6426 HLH (Tx) (the "Previous Action"), the Church of Scientology International ("CSI") signed a very broad and general release which arguably bars them altogether from suing Defendants for the claims alleged in the present action. Berry Decl., Exhibit 98. Significantly, the release runs to all "agents" of Lewis, D'Amato, Brisbois & Bisgaard ("LDB&B"), the law firm which represented the Defendants in the Previous Action. 67. It should be emphasized that in this Previous Action, Defendants were, in fact, paid research and consultation agents to LDB&B. Indeed, to assist with Defendants' research in the Previous Action. LDB&B sent Defendants three CD's and approximately 60,000 pages of hard copy material. Notably, all purported instances of infringement that are alleged by BPI in the current action relate either directly or indirectly to the research Defendants performed for LDB&B in the Previous Action and were contained on the three legal research CDs. Berry Decl., Exhibit 96. Because the release in the Fishman/Geertz Action may very well bar BPI's claims against Defendants in the instant action, Defendants should be allowed to further discover information pertaining to this release including, inter alia, the circumstances surrounding the execution of the release, the enforceability of the release and its scope, and the content of the agreement between LDB&B and CSI. 68. In connection with this inquiry, Defendants wish to depose, among others, Robert F. Lewis, Esq., and Janet Lubert, Esq. (Berry Decl., 5(a)).
XI. CONCLUSION 69. For the foregoing reasons, the discovery sought by Defendants is necessary and proper to explore numerous contradictions, discrepancies and unorthodox actions of the various parties involved in the series of transactions by which RTC and/or BPI allegedly acquired the alleged copyrights and trade secrets at issue. Only by means of such discovery can Defendants ascertain whether or not BPI has the capacity to maintain this action. 70. In addition, Defendants request the Court to severely sanction Plaintiffs for their outrageous conduct and discovery obstruction described and evidenced herein.
Dated this ___ day of August, 1997 Respectfully submitted,
BEEM & MANN, P.C.
By_________________________________ Clifford L. Beem, #917 Attorneys for Defendants - F.A.C.T.Net, Inc. and Lawrence Wollersheim One Norwest Center - Suite 3901 1700 Lincoln Street Denver, Colorado 80203 (303) 894-8100
MUSICK, PEELER & GARRETT, LLP Graham E. Berry Attorneys for Defendants - F.A.C.T.Net, Inc. One Wilshire Boulevard Twenty-first Floor Los Angeles, California 90017 (213) 629-7700
HAGENBAUGH & MURPHY Daniel A. Liepold 701 S. Parker Street, Suite 8200 Orange, California 92668 (714) 835-5406
TABLE OF CONTENTS
Page
I. DEFENDANTS HAVE DILIGENTLY PURSUED THE DISCOVERY THEY SEEK TO COMPEL 2
A. Plaintiffs Have Themselves Ignored The Claimed Discovery Cut-Off Date 2
B. Plaintiffs' Discovery Flip-Flop Was Blatant Obstruction. 6
C. Between April 15, 1997 and May 16, 1997, The Parties Met and Conferred Regarding An Amended Discovery Scheduling Order. 9
D. Defendants F.A.C.T.Net And Wollersheim's Ex Parte Petition For A Stay In The L. Ron Hubbard Estate Proceedings Prompted Settlement Negotiations Herein Between May And July 1997. 10
E. The Parties Were Engaged In Settlement Negotiations From Mid-May 1997 Through Mid-July 1997. 11
III. FURTHER DISCOVERY IS VITAL TO DEFENDANTS' OPPOSITION TO BPI'S MOTION 12
IV. DEFENDANTS SHOULD BE PERMITTED TO PURSUE DISCOVERY THEY SEEK 13
V. STATEMENT OF PERTINENT FACTS 17
VI. THE DISAPPEARANCE OF L. RON HUBBARD, THE PURPORTED PRE- TESTAMENTARY ASSIGNMENTS AND OTHER FRAUDULENT AND PURPORTED DEALINGS WITH THE DISPUTED WORKS 21
VII. THE SUSPICIOUS CIRCUMSTANCES OF L. RON HUBBARD'S DEATH, PURPORTED EXECUTION OF THE ALLEGED LAST WILL AND TESTAMENT PURPORTEDLY DATED JANUARY 23, 1987, THE IMPROPER, UNETHICAL, FRAUDULENT AND CRIMINAL ADMINISTRATION OF THE ESTATE OF L. RON HUBBARD 22
VIII. "WILL BUMPING" PROVISIONS OF THE 1909 COPYRIGHT ACT OVERRIDE TO VEST TITLE IN STATUTORY SUCCESSORS 22
A. Summary of Law 22
B. Application 26
IX. INCONSISTENCIES, DISCREPANCIES AND UNORTHODOX ACTIONS OF EXECUTOR GIVE RISE TO INFERENCES OF POSSIBLE FRAUD AND/OR OTHER MISCONDUCT 28
A. Judgment of Final Distribution Does Not Bar Further Proceedings 28
B. Execution of Decedent's Will 30
C. Probate of Decedent's Will 41 (a) Noncompliance With Notice Requirements Violates Due Process and Deprives Probate Court of Jurisdiction 41 (b) Mary Sue Hubbard's Possible Equitable Ownership in Assets Now Held by Plaintiff 43 (c) Starkey, as Executor, Concealed From the Probate Court the Assignment of Estate Assets to RTC to Avoid Court Inquiry 45 (d) Starkey, as Executor, Failed to Provide CST With Notice of Assignment and Notice of Executor's Report and Petition for Final Distribution 47 (e) CST's Joining in Assignment of Assets to RTC Constitutes a Breach of Charitable Trust 48 (f) Discrepancy Between Law and Motion Calendar and Judgment of Final Distribution 49
X. DEFENDANTS ARE ENTITLED TO FURTHER DISCOVER INFORMATION PERTAINING TO BPI"S PREVIOUS RELEASE OF DEFENDANTS FROM THE CONDUCT ALLEGED IN BPI'S MOTION 49
XI. CONCLUSION 50
TABLE OF AUTHORITIES
Page(s)
CASES
Bartok v. Boosey & Hawkes, Inc. (2d Cir. 1975) 523 F.2d 941 24
Capano Music v. Myers Music, Inc. (S.D.N.Y. 1985) 605 F. Supp. 692 25
DeSylva v. Ballentine (1956) 351 U.S. 570 24, 25
Estate of Graves (1927) 202 Cal. 258 31
Heiser v. Super. Ct. (1979) 88 Cal.App.3d 276 14
Estate of Jenanyan (1982) 31 Cal.3d 703 41
Estate of Joslin (1958) 165 Cal.App.2d 330 cert. den., 360 U.S. 905 14
Fox Film Corp. v. Knowles (1923) 261 U.S. 326 25
Fred Fisher Music Publishing Co. v. M. Witmark & Sons (1943 318 U.S. 643 23
Kingsbury v. Ross (1933) 217 Cal. 484 29
Estate of Loring (1946) 29 Cal.2d 423 14
Estate of Mann (1986) 184 Cal.App.3d 169 31
Mennonite Bd. of Missions v. Adams (1983) 462 U.S. 791 41, 42
Miller Music Co. v. Charles N. Daniels, Inc. (1960) 362 U.S. 373 24
Mullane v. Central Hanover Bank & Trust Co. (1950, 339 U.S. 306 42
Parson v. Tickner (1995) 31 Cal.App.4th 1513 29, 40
Estate of Peterson (1968) 259 Cal.App.2d 492 47
Romagnolo v. Romagnolo (1964) 230 Cal.App.2d 315 28
San Diego Council, Boy Scouts of America v. City of Escondido (1971) 14 Cal.App.3d 189 48
Estate of Sanders (1985) 40 Cal.3d 607 29, 40
Estate of Sarabia (1990) 221 Cal.App.3d 599 31
Shelton v. Vance (1951) 106 Cal.App.2d 194 28
Silverman v. Sunrise Pictures Corp. (2d Cir. 1923) 290 F. 804 25
Estate of Smith (1926) 200 Cal. 152 31
Stevens v. Torregano (1961) 192 Cal.App.2d 105 29
Tulsa Prof. Collection Services, Inc. v. Pope (1988) 485 U.S. 478 41, 42
Estate of Yale (1931) 214 Cal. 115 31
STATUTES
Fed.R.Civ.P. 16 4
F.R. Civ. P. Rule 16(b)(6) 1, 4, 13, 21
Family C. § 7600 27
Probate Code § 328 41, 45, 46, 47
Probate Code § 1020.1 45
Prob. C. § 9860 29, 45, 47
Probate Code §§ 1208 and 10532 48
TEXT
Copyright Act of 1909, § 23, 35 Stat. 1075 (1909) 22
Copyright Act of 1976, 17 U.S.C. §§ 101 et seq. (1978) (the "1976 Act") 22
Nevins, "Copyright Law vs. Testamentary Freedom:
The Sound of a Collision Unheard," 23 Real
Prop. Prob. & Tr. J. 47 (1988) ("Nevins") 24, 25
25 Cal.Jur.3d (Rev.) 16
/ One has to wonder whether Plaintiffs' substituted Samuel D.
Rosen, Esq. into the case, by pro hac vice admission on
March 24, 1997 so that he could make such erroneous
assertions with a straight face and ability to claim
innocent error as brand new counsel.
/ These accusations related to Plaintiffs' on-going harassment
of F.A.C.T.Net's Counsel Graham E. Berry and the
circumstances surrounding the issuance of the original
search and service orders herein.
/ RTC and BPI sought to avoid the deposition of
David Miscavige by dismissing RTC's trade secret claims
(related to those formerly asserted herein) and arguing that
his deposition was not relevant to BPI's copyright claims.
That argument was summarily rejected. RTC and BPI had
vainly sought to avoid the deposition of David Miscavige by
dismissing RTC's trade secret claims (related to those
formerly asserted herein) and arguing that his deposition
was not relevant to BPI's copyright claims. That argument
was summarily rejected there. Undeterred, Plaintiffs are
now pursuing the same flawed strategy here. Recently, RTC
dismissed its trade secret claims herein with the misleading
argument that the final judgment and injunction in the
related RTC v. Lerma case provided it with adequate trade
secret protection. However,the truth of the matter is that
the Lerma court summarily dismissed RTC's trade secret
claims very early in that case and the injunction extends
only to the published works purportedly owned by BPI.
/ Also, the immediately preceding Ex Parte Petition for Stay
in Proceedings, etc., Supporting Declaration of Graham E.
Berry and Exhibits, concurrently filed herein under deal
pursuant to letter agreement. In addition, Berry Decl.,
Exhibit 72, p. 22, 2.
/ A copy of these documents have been filed concurrently under
seal.
/ Accordingly, pp. 7-12 herein indicate that every time
defendants were about to obtain an order as to the
deposition of David Miscavige, plaintiffs engaged in another
delaying tactic. Indeed, plaintiffs have a long history of
discovery abuse. See generally, Declaration of Hon. James.
M. Ideman, U.S.D.C., C.D., Ca. Berry Decl., Ex. 91.
/ E.g., RTC v. Lerma and RTC v. Erlich.
/ The complete title of the order for final distribution in
the estate of L. Ron Hubbard is "Judgment of Final
Distribution on Waiver of Accounting and for Allowance of
Attorney's Fees for Ordinary Services and Judgment of Final
Distribution [sic]," filed January 3, 1989 ("Judgment of
Final Distribution").
/ Interestingly, Plaintiffs fail to mention that the Heiser
court's remark was never intended to describe an order for
final distribution in probate. Rather, the Heiser court was
merely noting the advantages to be gained by a third party
who obtains a favorable judgment adjudicating title to
particular estate assets in a probate proceeding, as opposed
to pursuing his or her claim in an ordinary civil action;
specifically, that the probate court enjoys both in rem and
in personam jurisdiction in title disputes litigated before
it. See also Estate of Joslin (1958) 165 Cal.App.2d 330,
cert. den. 360 U.S. 905. Plaintiffs have not alleged that
any title disputes were adjudicated in the estate of L. Ron
Hubbard.
/ On June 22, 1987, Defendant Wollersheim filed a claim
against the Estate of L. Ron Hubbard, Executor Norman F.
Starkey rejected it. See Ex Parte Petition, p. 12:4-18
(concurrently filed under seal herein).
/ "Equitable relief against an order of distribution
ordinarily does not affect the order as such." 25
Cal.Jur.3d (Rev.) Part 2, Decedents' Estates § 1385 (citing
Sohler v. Sohler (1902) 135 Cal. 323; Estate of Walker
(1911) 160 Cal. 547).
/ Berry Decl., Exhibit 1.
/ This was done despite the overwhelming and disturbing
matters, worthy of judicial intervention, described on
pages 22-23 and 37-40 herein.
/ This statement contradicts Decedent's statement made in at
least one prior will, dated December 15, 1979, in which
Decedent identified Alexis Hollister as one of Decedent's
heirs. See Exhibit A to Declaration of Sherman D. Lenske,
dated February 4, 1986.
/ See Exhibits A and B to Declaration of Sherman D. Lenske,
dated February 4, 1983.
/ Berry Decl., Exhibit 102, 5
y.
/ See generally, Ex Parte Petition, etc. pp. 12-34.
/ The effective date of the 1976 Act is January 1, 1978.
/ The two-term scheme was eliminated in the 1976 Act. The
1976 Act protects most works for the remainder of the
author's lifetime, plus 50 additional years. There are no
"will-bumping" provisions in the 1976 Act. However, under
complex rules, an author's statutory successors may exercise
a "right of termination" and reacquire a copyright that an
author had disposed of in an inter vivos transfer.
/ This feature of the 1909 Act is known as "will-bumping."
See Nevins, "Copyright Law vs. Testamentary Freedom: The
Sound of a Collision Unheard," 23 Real Prop. Prob. & Tr. J.
47 (1988) ("Nevins").
/ Unless otherwise indicated, all references to statutes are
to California Codes.
/ See generally, Ex Parte Petition, etc. (filed under seal)
pages 22-28.
/ As previously noted, Plaintiffs have not alleged that any
title disputes were adjudicated in the Estate.
/ In fact Defendants' family is believed to have been kept in
ignorance of Defendant's purported stroke, demise and lack
of autopsy until after these events had occurred. Suzette
Hubbard is believed to have been particularly angered by
David Miscavige's actions in this regard.
/ Indeed, it is believed that daughter Suzette Hubbard
received no direct benefit from the Estate, valued at only
$26 million by the Church and all of which went to the
Church. Subsequently, it is believed that Mary Sue Hubbard
made an approximately $150,000 gift to her daughter.
Recently, Plaintiffs are believed to have taken additional
steps to ensure that Mr. Hubbard's surviving family cannot
be reached by Defendants' process servers.
/ This statement is contradicted by documents filed with the
Probate Court, in which Charles E. Ogle, Ogle, Gallo &
Merzon, is listed as the attorney for Starkey, as Executor.
Furthermore, attorney's fees in the amount of $186,958.35
were requested in the Executor's Report and Petition for
Final Distribution only for Ogle, Gallo & Merzon, and were
approved by the Probate Court accordingly. Finally, in a
letter dated October 4, 1989, from Mr. Ogle to Edward C.
Williams, Sheriff of San Luis Obispo County, Mr. Ogle
identified himself as follows: "At all times since Mr.
Hubbard's death, I have, and still do, represent Norman F.
Starkey, Mr. Hubbard's Executor." In a recent filing in the
L. Ron Hubbard Probate Court, Mr. Starkey conceded that he
had deliberately remained as the Executor of the Estate and
not sought discharge. Berry Decl., Exhibit 102, p. 5.
/ See Paragraph 46(c) above.
/ Defendants make no representations about page 3 of the 1982
document because a blank page was inserted instead of page 3
in Defendants' copy of such document.
/ As shown by the witness signatures on the Will, at least
four other people had been at Decedent's residence on
January 23, 1986, namely, Patrick D. Broeker, Anne M.
Broeker, Stephen J. Pfauth and Ray Mithoff. The Broekers
and Stephen J. Pfauth were also present on January 20, 1986,
when they witnessed a document signed by Decedent entitled
"Certificate of Religious Belief." Given the execution of
these documents, Decedent obviously must have been very ill;
it is strange that none of Decedent's family members were
contacted at that time. In this regard, see Ex Parte
Petition, page 20, 28, filed concurrently under seal.
/ This excuse is suspect. Decedent purportedly executed the
Will just the day before--what did Dr. Denk and Mr. Cooley
need to do to "get the will together"? Moreover, what did
they need to do to "expedite the procedures for cremation of
Mr. Hubbard's remains"? Merely, contacting a funeral home
immediately after the discovery of the death would have
served that purpose.
/ This observation has no merit. Both wills are "pour-over"
wills, and the trust into which probate assets are "poured"
at death contain the dispositive provisions, which could
have been very different. The 1982 will referred to the
Author's Family Trust, established on May 10, 1982, while
the January 23, 1986 Will poured its assets into the
Author's Family Trust-B.
/ See Paragraph 23 of the Declaration of Sherman Lenske, dated
November 12, 1995, filed in RTC v. Lerma et al, Civil Action
No. 95-1107-A, U.S.D.Ct. (E.D. Va.). Berry Decl., Exhibit
97.
/ Plaintiffs may attempt to argue that Probate Code § 1020.1
was intended to apply only with respect to assignments to
"heir-hunters." In fact, this section applies to assignees
and transferees generally, including the assignees and
transferees of a charitable organization, such as CST.
Estate of Peterson (1968) 259 Cal.App.2d 492.
/ Berry Decl., Exhibit 87.
(..continued)
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