Memorandum In Support Of Respondent Mary Sue Hubbard's Motion For Summary Judgment

Hubbard Litigation

Law Offices of Barrett S. Litt
617 South Olive Street, Suite 1000
Los Angeles, California 90014
(213) 623-7511

Attorneys for Respondent MARY SUE HUBBARD



In re the Estate of L. RON HUBBARD.


Case No. 47150



The attached declaration of L. Ron Hubbard (Exhibit I-I) was received in the offices of Mr. Hubbard's attorney, Sherman Lenske, at approximately 3:00 P.M. on May 18, 1983. If there was ever any question in the court's mind as to the viability of respondent's summary judgment motion, Mr. Hubbard's declaration should resolve all doubts. As the court is aware, we have already submitted extensive evidence that Mr. Hubbard is alive and well, living in seclusion, in excellent physical and mental health, supervising his business, financial and literary affairs, communicating with others as he sees fit, and that his estate is well managed, and not in need of attention, supervision and care. We have also previously submitted a handwritten letter from Mr. Hubbard to the court asking that this proceeding be dismissed, which letter has been fully authenticated and to which no questions as to its legitimacy has been raised by petitioner. However, up to now we have not been able to submit to the court a statement, sworn under penalty of perjury, by Mr. Hubbard himself. Only now has such a document become available to respondent. The declaration includes, on each page, L. Ron Hubbard's fingerprints. It is signed with specially prepared timedated ink. The last page contains a handwritten portion of the declaration so that there will be ample handwriting with which to conduct a handwriting analysis. Attached to this Supplemental Memorandum are the authenticating affidavits of the handwriting and fingerprint on the declaration; the time-


dated ink authentication affidavit will not be available until the hearing. The validity of Mr. Hubbard's declaration, and the admissibility of this document are, therefore, beyond dispute.

We recognize that the hearing on respondent's summary judgment motion is scheduled for May 20, 1983. Because of the extraordinary nature of this declaration, and its decisiveness on the summary judgment motion, we have taken every possible step to assure that petitioner has an opportunity to independently test the authenticity of the declaration. We are submitting, therefore, to the court, a copy of the declaration. The original is being retained to permit petitioner's counsel, if desired, to inspect the document and/or have his own experts examine it. The original will be brought to the hearing itself. In addition, we have arranged to have the authentication experts available for examination by petitioner's counsel, should he determine that such a step is desirable. Finally, we are prepared to have these same authentication experts available at the hearing itself, should the court deem it appropriate to examine, or permit petitioner's counsel to examine, these experts. In short, we are prepared to make every reasonable accommodation to petitioner in order that this declaration may be considered by the court at the May 20 hearing and to anticipate and avoid any possible technical objections to the admissibility of this document.


The declaration of L. Ron Hubbard serves two related but independent purposes in relation to the instant motion for summary judgment. First, standing alone, the document effectively and conclusively rebuts the two essential elements petitioner is required to establish in order to permit appointment of a trustee under §260 of the probate code. That is, Mr. Hubbard, in his own words, states that he is not missing, and that his estate is not in need of attention, supervision and care. Secondly, the declaration is consistent with and supplements the substantial evidence already produced by respondent regarding each of the particular claims made by the petitioner.

Because the declaration clearly speaks for itself, because the experts who have authenticated the declaration unquestionably establish that Mr. Hubbard signed the declaration recently and affixed his fingerprint, because the declaration itself speaks to and rebuts every relevant allegation of the petitioner, and because this court has already been inundated with paper, we are not going to explain the various ways in which the declaration settles the issues in this case. We ask only that the court read the declaration and accompanying exhibits and determine this for itself.

We do wish, however, to briefly address the reasons that the court should fully consider the declaration even though it is submitted later than we would have wished and even though petitioner has not had, and will not have, the


opportunity to cross-examine Mr. Hubbard, who makes it very clear in his declaration that he does not intend to either appear in this matter or to subject himself to deposition.

The declaration is submitted under penalty of perjury, and is dated and prepared in the form expressly provided for in CCP §437c and §2015.5. The information contained in the declaration is made by Mr. Hubbard on his personal knowledge, sets forth admissible evidence and shows affirmatively that the declarant is competent to testify to the matters stated therein. CCP §437c(d).

The fact that Mr. Hubbard is not personally available does not in any way prevent the submission of this declaration. "If a party is otherwise entitled to a summary judgment pursuant to the provisions of this section, summary judgment shall not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment ...." 437c(e).

Petitioner himself has, at least by implication, argued that a declaration from L. Ron Hubbard is admissible. Included in his list of objections to the admissibility of Mr. Hubbard's February 3 letter is the assertion: "[I]t [the letter] is not in the form of a declaration, affidavit or deposition as permitted by Code of Civil Procedure §437c." (Petitioner's Memorandum, p. 18). The present declaration certainly satisfies petitioner's objection in this regard. Further, the declaration is also admissible


for relevant nonhearsay purposes, as well as for the truth of the matters asserted under various exceptions to the hearsay rule. (See Respondent's Argument III B and C, in our original Memorandum of Law in Support of Summary Judgment Motion. These arguments made regarding the February 3 letter of Mr. Hubbard are equally applicable to the instant declaration and will not be repeated here). Finally, any communication to the court from L. Ron Hubbard, given that this proceeding under Probate Code §260 is for the protection and benefit of Mr. Hubbard, must be considered by the court.

This court has previously indicated that such a declaration, sworn under penalty of perjury, by L. Ron Hubbard would, indeed, be considered on a motion for summary judgment. At the hearing held February 17, 1983, the following exchange between court and counsel took place:

"THE COURT: ... If Mr. Hubbard is ready and willing to sign a statement, I don't see any reason why he does not sign it under penalty of perjury.

"MR. LITT: Would that dispose of the matter?

"THE COURT: I am not saying it would, but it would make his statements admissible in evidence." (R.Tr., pp. 9-10).

Under these circumstances, although this declaration is being submitted to the court, and made available to counsel one day before hearing, there can be no valid objection to


the court's consideration of the document. The only conceivable contention petitioner could make is that he has not had the opportunity to test the authenticity of this declaration. But we note that the previously submitted handwritten letter by L. Ron Hubbard was similarly made available to counsel for petitioner, and he neither had the letter examined by his own experts, nor took the deposition of the authentication experts which the respondent made available to him; this is true despite the fact that he objected to the court's consideration of the letter at the February 17 hearing precisely because he had not had the opportunity to examine the document or the experts. The current experts are identical to those already made available to petitioner and not examined by him. Their opinions are based on the identical analysis and underlying documentation previously relied upon by them, and never challenged by petitioner. In the event of petitioner's objection that there was inadequate opportunity to prepare a response to this declaration, the court should require, at a minimum, a prima facie showing of some valid objection which could not already have been developed.

One final point. It is our position that summary judgment is required in this case even without our having submitted a declaration from Mr. Hubbard. Therefore, assuming we are correct, as we believe we are, petitioner has in no way been prejudiced by this late submission, and the court can proceed to rule accordingly. Only if the


court considers that the declaration necessitates the granting of our motion, whereas without the declaration the court would not so rule, can there even be a question of possible prejudice. Even then, for the reasons we have explained, the declaration is fully admissible and should be considered, particularly in light of petitioner's prior failure to challenge the authenticity of previous documents authenticated by the same experts. If the court does believe that petitioner must be given the opportunity to authenticate, then -- and only then -- should the hearing be continued until Monday and the petitioner ordered to engage in discovery and/or retain his own experts to examine the document before then.

None of the facts contained in the L. Ron Hubbard declaration are new. The declaration does not open the door to any factual matters that have not already been fully subjected to discovery, briefed and argued. As we have pointed out from the time this proceeding was initiated, petitioner's claims are completely groundless. This declaration from Mr. Hubbard merely cements that obvious conclusion. Summary judgment must be granted to respondent.

DATED: May 19, 1983

Law Offices of
Barrett S. Litt

By: ___________________
Attorneys for Respondent
Mary Sue Hubbard



Exhibit I-I

Exhibit 00

Exhibit PP

Exhibit QQ

Exhibit RR

Declaration of L. Ron Hubbard

Declaration of Michael R. Magasin

Affidavit of Donald Keir

Affidavit of William Bowman

Affidavit of Richard L. Brunelle
(To be submitted at May 20 hearing)