Title: Disputed Facts re Ownership filing
Author:
inForm@super.zippo.com (Rev. Dennis Erlich)
Date: Tue, 28 Oct 1997 02:48:51 GMT


Faithful Reader,

MoFo filed this as one of several filings presented to the court on October 15th to
counter the scienos' motion for summary judgement which would give them
undisputed/indisputable ownership of the material in question in my case.  The rest of the
filings are sealed.  Whatever that means.

Excuse the formatting.  I could not get it to lay out straight.

---------------------------------------------

                    UNITED STATES DISTRICT COURT
                                                   
                   NORTHERN DISTRICT OF CALIFORNIA
                                          SAN JOSE DIVISION
                                                   
                                  
                   RELIGIOUS TECHNOLOGY CENTER, a
            California non-profit corporation; and BRIDGE
             PUBLICATIONS, INC., a California non-profit
                            corporation,
                                  
                        Plaintiffs,
                                  
       v.
                                  
                    DENNIS ERLICH, an individual,
                                  
                        Defendants.
                                  
  No.             C-95-20091 RMW (EAI)
                                  
                       DENNIS ERLICH'S SECOND
                        REVISED STATEMENT OF
                         DISPUTED ISSUES OF
                      MATERIAL FACT IN SUPPORT
                        OF HIS OPPOSITION TO
                       PLAINTIFFS' MOTION FOR
                           PARTIAL SUMMARY
                      JUDGMENT AS TO OWNERSHIP
                                  
    Date:         To Be Determined
    Time:         To Be Determined
    Ctrm:        Hon. Ronald M. Whyte
                                   
                       FILED OCTOBER 15, 1997
                                   
                      AND RELATED COUNTERCLAIMS


  DISPUTED ISSUES OF MATERIAL FACT
  Defendant Dennis Erlich submits the following Statement of Disputed Issues of
  Material Fact in Opposition to the Motion for Partial Summary Judgment filed by
  plaintiffs Religious Technology Center ("RTC") and Bridge Publications, Inc. ("BPI") on
  the issue of standing and ownership.  As set forth in Mr. Erlich's accompanying
  memorandum, RTC and BPI have failed to prove they possess the necessary ownership
  interest to sue for infringement of the copyrights at issue in this case.
  Plaintiffs either have failed to enter any evidence into the record to support their
assertions of ownership or there is
  evidence calling the evidence they have provided into dispute.  At a minimum, each item
listed below presents a genuine issue
  of material fact, which prevents summary judgment in plaintiffs' favor.  
  
  
  Disputed Issue of Material Fact No. 1: 
  L. Ron Hubbard was not the sole author of the
  works ascribed to him.
  Evidence:
  Final Taff-Rice Decl., Exh. E at 1,
  Exh. J at 798:11-802:7, Exh. T
  at  2a; Exh. DD, Exh. SS; Additional
  Gold Decl., Exh. B.
  
  
  Disputed Issue of Material Fact No. 2: 
  At least 25 of the copyrights were not included
  in the Inventory & Appraisement of the Estate.  
  Evidence:
  Hawkins Reply Decl. Ownership, Exh.
  D; BPI Revised Binders 4-20, Tab 4;
  RTC Revised Binders 21-35 Tab 4;
  Additional Gold Decl. Exhs. C and D;
  Additional Oakley RTC Decl., Exh. C;
  Final Oakley RTC Decl. (August 15,
  1997), Exh. A (McShane Depo.) at
  543:7-14 .
  
  
  Disputed Issue of Material Fact No. 3: 
  L. Ron Hubbard's signatures on some copyright
  transfer documents and David Miscavige's
  Notary Log Book are not authentic.  
  Evidence:
  Final Fisher Decl.,  5-8, 10-11;
  Final Taff-Rice Decl., Exh. M at 45-56, Exh. GG at 12, Exh. HH at 39,
  Exh. II at 2.
  
  
  
  
  Disputed Issue of Material Fact No. 4: 
  The 1982 Assignment Agreement transferred a
  copyright interest to RTC that was not
  accounted for in the probate.
  Evidence:
  Final Taff-Rice Decl., Exh. T, Exh. U
  at 1, Exh. V, Exh. J at 803:13-804:25.
  
  
  
  Disputed Issue of Material Fact No. 5: 
  L. Ron Hubbard was not the original author of OT II and OT III.  
  Evidence:
  Additional Gold Decl., Exh. B (Geoffrey Filbert
  Declaration); Final Taff-Rice Decl., Exh. K at 1-2,
  Exh. O at Bates Nos. 6415-16, 6419-21, 6423-24,
  6426-28, 775, Exh. P at 423-424, Exh. BB at Bates
  No. 57 (works listed under 17 Aug. 1983), Exh. QQ
  at 2; Reply Declaration of Ryland Hawkins
  Ownership, dated July 7, 1997, Exh. B at 2; Exh. SS.
  
  
  Disputed Issue of Material Fact No. 6: 
  L. Ron Hubbard was not the sole author and owner of NOTs.
  Evidence:
  Final Taff-Rice Decl., Exh. G at 2, Exh. H at 11:9-12:13, 13:18-14:1, Exh. J at
407:7-18, Exh. DD
  at 3,13; Reply Declaration of Ryland Hawkins
  Ownership, dated July 7, 1997, Exh. B at 2.
  
  
  Disputed Issue of Material Fact No. 7:  
  The 1987 Exclusive License did not transfer ownership of NOTs to
  RTC.  
  Evidence:
  Final Taff-Rice Declaration, Exh. G, Exh. H at 11:9-12:13, 13:18-14:1, Exh. OO at 40, 41
 B and E, 42
   1a.
  
  
  
  
  Disputed Issue of Material Fact No. 8:  
  The 1978 Assignment did not convey ownership of NOTs
  from Church of Scientology of California ("CSC") to
  Mr. Hubbard.
  
  Evidence:
  Final Taff-Rice Decl. Exh. E at 2, Exh. G, Exh. J
  at 759:20-764:14.
  
  
  
  
  
  
  Disputed Issue of Material Fact No. 9: 
  Further discovery will show that Mr. Hubbard's widow was
  under undue influence of the beneficiaries of Mr. Hubbard's
  estate to surrender her community property interest in the
  estate. 
  Evidence:
  Additional Gold Decl., Exh. A.
  
  
  
  
  RESPONSE TO PLAINTIFFS'
  STATEMENT OF UNDISPUTED FACTS
  Plaintiffs' Purportedly Undisputed Fact No. 1:
  "During his lifetime, L. Ron Hubbard created numerous literary works pertaining
  to the Scientology religion that are protected by federal copyright law."
  Erlich's Response:  Disputed in part.
  While Mr. Erlich does not dispute that Mr. Hubbard created literary works during
  his lifetime, there are material questions of fact regarding the ownership of and
copyright
  protection for the works at issue in this case.  See Defendant Dennis Erlich's
  Memorandum in Opposition to RTC's Motion and Memorandum in Opposition to BPI's
  Motion, both filed October 15, 1997, and evidence and arguments submitted therein; see
  also Final Taff-Rice Decl., Exh. O at 6415-16, 6419-21, 6423-24, 6426-28, 775, Exh. P
  at 423-24, Exh. Q at 1, Exh. R at 1, Exh. DD at 3, 13; Reply Declaration of Ryland
  Hawkins Ownership, dated July 7, 1997, Exh. B at 2.
  Plaintiffs' Purportedly Undisputed Fact No. 2:
  "All but a small percentage of Mr. Hubbard's original written and recorded works
  have been published and made generally available."
  Erlich's Response:  Disputed.
  The "works" that plaintiffs claim in this action are, in fact, published both for fair
  use purposes and for purposes of determining whether copyright notices were required to
  be used.  See Final Erlich RTC Opp. Brf., at section IIC2, and Final BPI Opp. Brf., at
  section IIC, and evidence and arguments submitted therein.
  Plaintiffs' Purportedly Undisputed Fact No. 3:
  "Among the unpublished works is a body of special works known as the "Advanced
  Technology," which contains confidential and proprietary information organized into
  gradient religious counseling levels."
  Erlich's Response:  Disputed.
  The Advanced Technology materials are not confidential and proprietary, nor are
  they unpublished, because they have been publicly available in court files, on the
Internet
  and other locations and have been possessed outside the Church of Scientology by
  numerous individuals.  See Final Erlich RTC Opp. Brf., section IIC2, and evidence and
  arguments submitted therein; Final Erlich Decl., filed August 15, 1997,  5.
  Plaintiffs' Purportedly Undisputed Fact No. 4:
  "Mr. Hubbard died on January 24, 1986.  His Estate was duly administered in the
  California Superior Court, San Luis Obispo County, Case No. 20855."
  Erlich's Response:  Disputed in part.
  Mr. Norman Starkey was named a trustee for life of RTC when it was
  incorporated.  Final Taff-Rice Decl., Exh. RR at 6-9.  There is no evidence in the
record
  that Mr. Starkey resigned or was removed as a trustee, so he held this position while
  administering Mr. Hubbard's estate and while apparently granting an exclusive license
  which lists no fee, to RTC.  Final Taff-Rice Decl., Exh. FF at 1 (introductory paragraph
  and  1-3), Exh. RR at 6-9.  During the same period, Mr. Starkey had a power of
  attorney from Mr. Hubbard's heirs in regard to executing the sale of their renewal
  copyrights to himself as the executor of Mr. Hubbard's estate.  See Plaintiffs' Motion
for
  Partial Summary Judgment as to Ownership, Declaration of Sherman Lenske, dated
  April 17, 1997 ("Lenske Decl."), Exhs. D-I.  To the extent Mr. Starkey had apparent
  conflicts of interest during the administration of Mr. Hubbard's estate, this prevented
its
  lawful administration.
  Also, Mr. Erlich objects to the extent that this purported "fact" is based on argument
and legal
  conclusion and not fact.
  Plaintiffs' Purportedly Undisputed Fact No. 5:
  "Mr. Hubbard's Last Will and Testament specifically recited his intent to dispose
  of his copyrights."  
  Erlich's Response:  Disputed in part.
  To the extent the will is authentic and Mr. Hubbard had capacity to execute the
  will the day before he died, Mr. Hubbard indicated his intent regarding disposal of
  copyrights.  Evidence shows the will may not be genuine, because Mr. Hubbard's
  purported initials on the signature pages of the Will may not be authentic.  Final
Fisher
  Decl.,  8, 10.  Hubbard signed the will a day after he died, and a week after
suffering a
  stroke.  Final Taff-Rice Decl., Exh. X.
  Plaintiffs' Purportedly Undisputed Fact No. 6:
  "Mr. Hubbard's will named the Author's Family Trust-B (the "Trust"), an inter
  vivos trust Mr. Hubbard had established, as the sole beneficiary of his Estate, again
  making specific reference to his intent to dispose of his copyrights."
  Erlich's Response:  Disputed.
  Mr. Hubbard does not make specific reference to disposal of his copyrights in the
  January 23, 1986, Author's Family Trust-B.  Article VI, referenced by plaintiffs states,
  "all principal and accumulated income remaining after the distributions provided for in
  paragraphs A, B, C, D, E, and F, above, including any lapsed gifts, shall, as soon as is
  convenient, be distributed to the CHURCH OF SPIRITUAL TECHNOLOGY . . . ."  Final
  Taff-Rice Decl., Exh. HH at 15 (Art VI.G) (emphasis added).  Additionally, there is
  evidence that shows the will may not be genuine, because Mr. Hubbard's purported
  initials on the signature pages of the will may not be authentic.  Final Fisher Decl., 
8,
  10.  
  Plaintiffs' Purportedly Undisputed Fact No. 7:
  "In 1986, subsequent to his appointment as executor of Mr. Hubbard's Estate,
  Norman F. Starkey purchased from Mr. Hubbard's statutory heirs   his widow and his
  children   their rights to renew those copyrights of Mr. Hubbard that were in their
initial
  28-year term under the 1909 Act."
  Erlich's Response:  Disputed in part.  
  Mr. Starkey did not obtain an agreement regarding renewal copyrights from Alexis
  Hollister, who was purportedly Mr. Hubbard's daughter, and who was disinherited in the
  trust.  Lenske Decl., 32  B.  
  Also, Mr. Erlich objects to the extent that this purported "fact" is based on argument
and legal
  conclusion and not fact.
  Plaintiffs' Purportedly Undisputed Fact No. 8:
  "The Inventory and Appraisement filed in Mr. Hubbard's probate on April 10,
  1987, listed various intellectual properties, including all of Mr. Hubbard's copyrights.

  The copyright list of titles alone exceeded 800 pages."
  Erlich's Response:  Disputed in part.
  The Inventory and Appraisement does not support the contention that all of the
  works at issue in this case went through probate.  See Erlich's Memorandum in
  Opposition to Plaintiffs' Motion As To Ownership, filed October 15, 1997, section 2C. 
  There are numerous discrepancies between the title and/or date of works listed in the
  Inventory and Appraisement and works  listed in the plaintiffs' Second Amended
  Complaint ("SAC").  Among the discrepancies are: a document entitled Scientology: A
  New Slant on Life in the Inventory and Appraisement is claimed to be the same work as
  "HCO Information Letter 10 Dec 1963 Scientology Zero The Dangerous Environment
  The True Story of Scientology;" listed in the SAC; a magazine entitled "Ability 158," is
  claimed to be the same work as "HCO Information Letter 10 Dec 1963 Scientology Zero
  The Dangerous Environment The True Story of Scientology;" a work entitled "HCOB 12
  May 85 FPRD Series 10-C, Exec and Staff Members Form," is claimed to be the same as
  a work dated almost three years later entitled "HCOB 4 May 1988 False Purpose
  Rundown Executive Posting Qualifications Form;" and "HCOPL 1 May 1965 Staff
  Member Reports" is claimed to be the same as a work dated ten years later entitled
  "HCOPL 1 May 75 Staff Member Reports."  Reply Declaration of Ryland Hawkins
  Ownership, dated July 7, 1997, 8 and Exh. D Chart.
  Moreover, the Inventory and Appraisement merely indicates that a single work entitled
"OT II
  Course" was included in the estate.  Hawkins Reply Decl. Ownership Exh. D, Tab 4.  There
is no
  evidence that RTC "works" number 4-20 were included, and the evidence produced to Mr.
Erlich
  indicates that only RTC "work" number 3 was included in the OT II Course.  Additional
Oakley RTC
  Decl., Exh. C (OTII Checksheet).  Similarly, there is no evidence that RTC "works" 21,
23, 24, 28
  and 35 were included in the "OT III Course listed on the Inventory and Appraisement.
Hawkins Reply
  Decl. Exh. D, Tab 4 and chart, see also RTC Revised Binders D21-35, Tab 4.  
  Also, it appears that the Inventory and Appraisement was filed before Mary Sue Hubbard
  purportedly relinquished her community property rights, and lists materials authored by
others.  See
  Erlich's Memorandum in Opposition to Plaintiffs' Motion As To Ownership, filed
  October 15, 1997, section 2B6.  
  Plaintiffs' Purportedly Undisputed Fact No. 9:
  "On January 3, 1989, the probate court entered its judgment of final distribution
  (the  Order'), distributing all property of Mr. Hubbard's Estate to the Trust,
including:
   1.  All Copyrights * * * owned by the decedent at his death,
     including those more particularly described in the Inventory &
     Appraisement filed herein on April 10, 1987 . . . .'
          The Order also included an "Omnibus" clause, providing that:
   Any other property of the estate, including any property not now
     known or discovered, that was owned by decedent at the time of his
     death or in which his estate has acquired or may hereafter acquire
     any interest is distributed to NORMAN F. STARKEY, TRUSTEE
     OF THE AUTHOR'S FAMILY TRUST-B, AN INTER-VIVOS
     TRUST ESTABLISHED JANUARY 23, 1986.'"
     Erlich's Response:  Disputed in part.
  The probate court's Judgment of Final Distribution also fails to prove that
  copyrights for all of the works at issue went through probate.  See Final Taff-Rice
Decl.,
  Exh. NN at 3:15-18, see also Erlich's Ownership Opp., section II. Additionally, evidence
  shows that Mr. Hubbard did not own all of the subject copyrights at issue at the time of
  his death.  Final Taff-Rice Decl., Exh. E at 1  8, Exh. G, Exh. T at  2a.  See
Response
  to Fact No. 8.  
  Plaintiffs' Purportedly Undisputed Fact No. 10:
  "Pursuant to the trust, after providing for his wife and for his descendants, the
  residue of Mr. Hubbard's Estate was left to the Church of Spiritual Technology ("CST"). 
  Lenske Dec.,  14, Ex. C, Art. VI, G.  (Trust Agreement)."
  Erlich's Response:  Disputed in part.
  Mr. Hubbard's trust states "all principal and accumulated income" remaining after
  specific distributions to his family should be distributed to CST.  Final Taff-Rice
Decl.,
  Exh. HH at 15 (Art. VI.G).  
  Plaintiffs' Purportedly Undisputed Fact No. 11:
  "This gift, however, was contingent upon CST securing a determination letter from
  the Internal Revenue Service ("IRS") recognizing CST as tax-exempt under
  section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code")."
  Erlich's Response:  Admitted, however, Mr. Erlich objects to the extent that this
  purported "fact" is based on argument and legal conclusion and not fact.
  Plaintiffs' Purportedly Undisputed Fact No. 12:
  "On October 1, 1993, the IRS issued its exemption letter to CST."
  Erlich's Response:  Disputed.
  Plaintiffs have neither produced nor entered into evidence the IRS letter, so
  Mr. Erlich cannot verify its existence or contents.  Fed. R. Evid. 1002.
  Plaintiffs' Purportedly Undisputed Fact No. 13:
  "On November 29, 1993, Mr. Starkey, as Trustee of the Trust, transferred to CST
  all of the remaining assets of the Trust.  One of the transfer documents from the Trust
  assigned to CST all of the trust's interests in Mr. Hubbard's copyrights."
  Erlich's Response:  Admitted in part.
  Because Mr. Erlich cannot verify what copyrights may have been probated, he
  cannot verify what assets may have been distributed to CST.  Also, Mr. Erlich objects to
  the extent that this purported "fact" is based on argument and legal conclusion and not
  fact.
  Plaintiffs' Purportedly Undisputed Fact No. 14:
  "On September 17, 1987, Mr. Starkey, as executor of Mr. Hubbard's Estate,
  granted RTC an exclusive license to the U.S. copyrights to the Advanced Technology,
  Lenske Dec.,  22, Ex. K, specifically including the right to seek redress for their
  infringement."
  Erlich's Response:  Disputed in part.
  Mr. Starkey executed an agreement purporting to grant an exclusive license in the
  Advanced Technology copyrights to RTC.  Plaintiffs have not proven that those
  copyrights were part of Mr. Hubbard's estate and the exclusive license would be valid
  only if the copyrights went through probate.  Mr. Hubbard may have assigned the
  Advanced Technology copyrights prior to 1987.  Final Taff-Rice Decl., Exh. E at 1  8,
  Exh. T at 3  2a, Exh. KK at 1.  
  Also, Mr. Erlich objects to the extent that this purported "fact" is based on argument
and legal
  conclusion and not fact.
  Plaintiffs' Purportedly Undisputed Fact No. 15:
  "On November 29, 1993, in connection with final distribution of the Trust's assets,
  CST agreed to assume Mr. Starkey's obligations under the 1987 copyright license to
  RTC.  Lenske Dec.,  27, Ex. N."
  Erlich's Response: Admitted, however, Mr. Erlich objects to the extent that this
  purported "fact" is based on argument and legal conclusion and not fact.
    Plaintiffs' Purportedly Undisputed Fact No. 16:
  "On October 1, 1991, Mr. Starkey, as Trustee of the Trust, entered into a Literary
  Agreement granting BPI the exclusive license to print, publish and sell Mr. Hubbard's
  published religious works in North America.  This license included the right to seek
  redress for infringement."
  Erlich's Response:  Disputed in part.
  The literary agreement executed between Mr. Starkey, as Trustee of the Trust, and
  BPI, is a valid grant of rights only to the extent that copyrights for the referenced
works
  went through probate and were subject to administration by Mr. Starkey.  Final Taff-Rice
  Decl., Exh. EE at 1 (introductory paragraph,  A), and 2 ( E).  Also, Mr. Erlich
objects
  to the extent that this purported "fact" is based on argument and legal conclusion and
not
  fact.
  Plaintiffs' Purportedly Undisputed Fact No. 17:
  "On November 29, 1993, in connection with the final distribution of the Trust
  assets, CST assumed Mr. Starkey's obligations under the 1991 Literary Agreement with
  BPI and ratified the agreement.  Lenske Dec.,  27, Ex. N."
  Erlich's Response:  Admitted, however Mr. Erlich objects to the extent that this
  purported "fact" is based on argument and legal conclusion and not fact.
  Dated:  October 15, 1997
     Harold J. McElhinny
                              Carla B. Oakley
                              Jana G. Gold
                              Ronald P. Flynn
                              Morrison & Foerster LLP
                              
                              
                              By   
                              Harold J. McElhinny
                              
                              Attorneys for Defendant
                              Dennis Erlich
                                                            
Harold J. McElhinny (Bar No. 66781)
  Carla B. Oakley (Bar No. 130092)
  Jana G. Gold (Bar No. 154246)
  Ronald P. Flynn (Bar No. 184186)
  Morrison & Foerster LLP
  425 Market Street
  San Francisco, California  94105
  Telephone: (415) 268-7000
  Facsimile:  (415) 268-7522
  
  Paul Goldstein (Bar No. 79613)
  Stanford Law School
  Stanford, California 94305
  Telephone:  (415) 723-0313
  
  Attorneys for Defendant
  DENNIS ERLICH
                              
   Be well,
   Dennis
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