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UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE ARTHUR S. WEISSBRODT, JUDGE
In Re: ) Case No. 98-51326-ASW
) Chapter 13
HOWARD KEITH HENSON, )
) Volume III
Debtor. ) Pages 363 to 492
) Tuesday, October 1, 2002
) San Jose, California
For the Debtor: Law Offices of Stanley A. Zlotoff
By: Stanley A. Zlotoff, Attorney at Law
300 South First Street, Suite 215
San Jose, California 95113
For Creditor Religious Moxon & Kobrin
Technology Center: By: Helena K. Kobrin, Attorney at Law
3055 Wilshire Boulevard, Suite 900
Los Angeles, California 90010
McPharlin, Sprinkles & Thomas
By: Elaine M. Seid, Attorney at Law
10 Almaden Boulevard, Suite 1460
San Jose, California 95113
Paul, Hastings, Janofsky & Walker LLP
By: Samuel D. Rosen, Attorney at Law
75 East 55th Street
New York, New York 10022-4597
Electronic Court United States Bankruptcy Court
Recorder: Clerk of the Court
280 South First Street, Room 3035
San Jose, California 95113
Certified Electronic Palmer Reporting Services
Transcriber: P. O. Box 30727
Stockton, California 95213-0727
Proceedings recorded by digital recording;
transcript produced by federally-approved transcription
service. I N D E X
Direct Cross Redirect Recross
Victoria Arel Lucas
By Mr. Rosen:
Exhibits: Received in Evidence
Creditor's Exhibit 289: page 370
1 Tuesday, October 1, 2002 1:38 o'clock p.m.
2 P R O C E E D I N G S
3 THE CLERK: Please rise.
4 THE COURT: Good - good afternoon, ladies and
5 gentlemen. Please be seated.
6 This is the case of Keith Henson. May I have
7 appearances of counsel, please.
8 MR. ZLOTOFF: Stan Zlotoff for debtor.
9 MR. ROSEN: Samuel D. Rosen, Paul, Hastings, Janofsky
10 and Walker for Religious Technology Center.
11 MS. KOBRIN: Helena Kobrin, Moxon and Kobrin, for
12 Religious Technology Center.
13 MS. SEID: Elaine Seid of McPharlin, Sprinkles and
14 Thomas, also on behalf of Religious Technology Center.
15 THE COURT: Counsel, I have been receiving a magazine
16 put out by the Scientologists periodically. I've now received
17 another document which I perceive to be anti-Scientology. I'll
18 pass this to each of you. It's from somebody named Vicky Ford.
19 I saw in the mail coming in there was some other publication or
20 newsletter and asked my secretary to xerox a copy.
21 None of this has anything to do with Mr. Henson's
22 case, but I thought I would tell you that I've been receiving
23 both pro and anti-Scientologist literature in the mail.
24 Ms. Lucas, would you please retake the stand and I'll
25 remind you that you're under oath.
1 VICTORIA AREL LUCAS, DEBTOR'S WITNESS, PREVIOUSLY SWORN
2 THE COURT: Good afternoon.
3 MR. ROSEN: Your Honor, in connection with my
4 examination of Ms. Lucas, may I hand up what we've marked and
5 what I'll offer into evidence as Exhibit 289. These are the
6 excerpts of the deposition taken of Mr. Henson on June 18th,
7 1998 that are the basis for the representation I made to Ms.
8 Lucas yesterday about her - that's not her husband's
9 handwriting, he didn't fill it out.
10 Mr. Zlotoff challenged me and said there was nothing
11 in the record to support it. I would like to offer them,
12 Exhibits 289 and 2- - Exhibit 289.
13 THE COURT: And you've given a copy to Mr. Zlotoff?
14 MR. ROSEN: Yes, I have, Your Honor.
15 THE COURT: That's fine.
16 Any opposition to the introduction of 289?
17 MR. ZLOTOFF: One second, Your Honor.
18 THE COURT: Okay. It's just the pages that you're -
19 that you've marked that's -
20 MR. ROSEN: Yes. Listed in the front of the exhibit,
21 Your Honor. The top page of the exhibit identifies, as we have
22 done in the pretrial order, page and line of the portions that
23 we're offering.
24 THE COURT: Do I have the whole deposition and you've
25 just marked -
1 MR. ROSEN: Oh, no, Your Honor. You have the excerpts
2 that we're offering, just as we -
3 THE COURT: But all of this constitutes the excerpts?
4 MR. ROSEN: No. All of this plus the back of it is,
5 so in context Your Honor can see, the questions relate to a
6 document marked as Exhibit 6. So what is -
7 THE COURT: So this is a copy of Exhibit 6 attached to
9 MR. ROSEN: Yes. If you look at the back half of
10 this, the - well, back two-thirds, you'll see most of this is
11 Exhibit 6 and you'll see these thicker. And when you look at
12 the transcript excerpts, you will see the reference now, "I show
13 you Exhibit 6, the bankruptcy schedules that you filed," et
15 And, Your Honor, I have not compared it line by line,
16 but it appears that this is - and indeed this is how we got -
17 this is an exact copy of the document which is before you as
18 Debtor's Exhibit A, the bankruptcy schedule that was filed.
19 You'll notice that this deposition was taken on June 18th of
20 1998, after the bankruptcy petition - schedules were filed and
21 at a time when there was no bankruptcy proceeding pending.
22 THE COURT: What's 290? This is 289, right?
23 MR. ROSEN: Correct.
24 THE COURT: Is that all we have? Oh, okay.
25 MR. ROSEN: That's the last number in sequence. We -
1 THE COURT: Right. But you - I thought you were
2 talking about two exhibits, but you're only talking about one,
3 other than Exhibit 6 which has already been introduced. Right?
4 MR. ROSEN: No. I'm s- -
5 MS. KOBRIN: No. The Exhibit 6 he's talking about is
6 the Exhibit 6 from the June '98 deposition, and it's at the back
7 of Exhibit 289.
8 THE COURT: Which is - I see. I under- -
9 MS. KOBRIN: Which is the same as the -
10 THE COURT: And which is what Mr. Henson was
11 testifying about.
12 MS. KOBRIN: Ms. Lucas was -
13 THE COURT: Which is what he was testifying at the
14 ex- -
15 MS. KOBRIN: Right.
16 THE COURT: - at the deposition, -
17 MS. KOBRIN: Right.
18 THE COURT: - but it should be the same as our exhibit
19 in which we have his schedules?
20 MR. ROSEN: Yeah.
21 MS. KOBRIN: Correct.
22 MR. ROSEN: Your Honor, let me just explain what
23 happens. We marked it at Mr. Henson's deposition in June of
24 1998 and designate as, quote, Deposition Exhibit 6, -
25 THE COURT: I understand.
1 MR. ROSEN: - a document.
2 THE COURT: I understand.
3 MR. ROSEN: As you go through the transcript you'll
4 see reference to, "I now show you Deposition Exhibit 6."
5 THE COURT: I understand.
6 MR. ROSEN: So Your Honor doesn't have to guess what
7 it is, we have provided you with that, with the sticker showing
8 this is Deposition Exhibit 6.
9 THE COURT: I understand.
10 CROSS-EXAMINATION, resumed
11 BY MR. ROSEN:
12 Q. Okay. Ms. Lucas, -
13 THE COURT: Wait.
14 Mr. Zlotoff, do you have any opposition?
15 MR. ZLOTOFF: No. It appears to be a copy of the
16 deposition taken, yes.
17 THE COURT: Okay. Do we have a certified copy of the
19 MR. ROSEN: It's certified. The last page of it is
20 certified by the court reporter.
21 THE COURT: Normally you'd have a sealed copy of a
22 deposition coming in.
23 MR. ROSEN: You'd have what?
24 THE COURT: A sealed copy of a deposition. We would
25 open it at court.
1 MR. ROSEN: Well, that's not the way it's done in the
2 federal District Court. You introduce an - a deposition by
3 providing the certified copy, the certification by the court
4 reporter, which appears at the last page of the - of the
5 transcript, just before Exhibit 6.
6 THE COURT: You're not doing - using it - okay. It's
7 all right.
8 You don't have any opposition, Mr. Zlotoff?
9 MR. ZLOTOFF: Well, it's being represented as a true
10 copy of a deposition and looks to be that. I recognize ARS
11 Reporting and I see the certification on the final page, so -
12 THE COURT: If you have any reason to challenge it,
13 you'll let me know -
14 MR. ZLOTOFF: I'm not sure I have a reason to
15 challenge it.
16 THE COURT: Okay. 289 is admitted.
17 (Creditor's Exhibit 289 received in evidence.)
18 THE COURT: If you find that it's not correct, you'll
19 let me know.
20 MR. ZLOTOFF: Right.
21 THE COURT: 289 is admitted.
22 MR. ROSEN: May I proceed, Your Honor?
23 THE COURT: Sure.
24 BY MR. ROSEN:
25 Q. Ms. Lucas, when we - yesterday afternoon, before we - just
1 before we broke we were talking about the testimony you had
2 given in response to Mr. Zlotoff's questions. And I just want
3 to take your mind back to that, take your mind back to that time
4 in 1998 when Mr. Henson was darting from one room to another to
5 come to you flashing the bankruptcy schedules and asking you for
7 Okay? Can you - can you see if you can put your mind
8 back at that point in time for me, please?
9 A. I'm trying.
10 Q. Okay. And you described Mr. Henson's state or physical
11 appearance, if you will, at the time that he was running back
12 and forth to you flashing the bankruptcy exhibits, schedules and
13 asking you for information. I think I got it right, but I just
14 want to ask you if this is a correct description of his conduct.
15 "He was agitated, exhausted, worried. He was moving
16 jerkily, hurriedly, thrusting things in my direction, skipping
17 from one topic to another, and his face was drawn." Is that a
18 correct description of what you observed as Mr. Henson was
19 darting into you from the dining room table with these
20 bankruptcy schedules and asking you for assistance?
21 A. I think that's what I described. I think it describes me as
22 well as him, maybe better.
23 Q. Well, does it - I thought you testified yesterday this
24 described Mr. Henson?
25 A. Well, I think so, from what I remember. I also said that I
1 was in very bad shape myself.
2 Q. Uh-huh. Well, you told us yesterday that this occurred in
3 the context of Mr. Henson filling out the bankruptcy schedules
4 that are before you as Exhibit A and as to which you then,
5 drawing on your 20 years of marriage, testified and verified
6 that it was Mr. Henson's testimony - Mr. Henson's handwriting,
8 A. Yes.
9 Q. And do I recall correctly on yesterday as we were closing,
10 come to an end of the day's proceeding, that you were expressing
11 some reservation about whether that testimony was true, that it
12 was Mr. Henson's handwriting on these bankruptcy schedules?
13 A. I had had reservations earlier that I had expressed and I
14 expressed them throughout that it looked strange, that some
15 things I was certain was his handwriting and other things looked
16 as though they had been put - done in pencil and written over
17 and other things just looked strange to me.
18 Q. Ms. Lucas, did you express any reservations about your
19 opinion that it was your husband's handwriting before I
20 cross-examined you?
21 A. Yes, I did.
22 Q. You expressed reservations in response to Mr. Zlotoff's
23 questions that it did - to parts that did not look like your
24 husband's handwriting?
25 A. I said that it looked strange, but that I thought it was his
2 Q. What is the "it" that "looked strange," ma'am? And if it
3 will help you, you may look at Exhibit A, the bankruptcy
4 schedule. And I would like you to tell me what it is you're
5 referring to when you testified yesterday that it looked
6 strange, meaning perhaps it was not his handwriting.
7 A. Which exhibit was it?
8 Q. It's Exhibit A.
9 THE COURT: The blue book, the light blue book.
10 THE WITNESS: Well, several things. For one thing,
11 I'm not used to seeing his printing.
12 BY MR. ROSEN:
13 Q. No, ma'am. You misunderstand my question.
14 You just said -
15 A. Um-hum.
16 Q. - that in testifying yesterday in response to Mr. Zlotoff's
17 question, you were referring to some part of Exhibit A that you
18 said looked strange.
19 A. Um-hum.
20 Q. I'm not asking you to tell me now what looked strange. I'm
21 asking you to tell me what you meant, what you were referring to
22 when yesterday you answered Mr. Zlotoff by saying, "This looked
24 A. That was part of it. I just said that.
25 Another thing is that where the - the handwriting -
1 there are several - now let's see if I can find - there's quite
2 a difference - there's a signature on the page numbered 345.
3 And -
4 Q. Mr. Henson's signature?
5 A. Yes.
6 Q. Right?
7 A. And there is a figure at the top of 346 and also handwriting
8 on that same page that says, "Federal Taxes and Visa" on the
9 left. And there's quite a difference between the numerals at
10 the top of the page starting with 430 and going down to 150, and
11 then the numerals starting with 2,000 and going down to 75. And
12 I thought this was strange. And I thought it was merely because
13 he had done it on different days. This happened over several
14 days. He may have been out of town during that time. I was
15 working. I just didn't remember it. I looked at this and I
16 thought, well, maybe he filled these in in pencil and then he
17 went over them, and that's why there is a different - and I said
18 that before.
19 Q. Ms. Lucas, yesterday you told us in response to Mr.
20 Zlotoff's question that this process of Mr. Henson coming to you
21 agitated, et cetera, with these bankruptcy schedules to ask
22 information occurred on one night.
23 A. No, I didn't.
24 Q. Excuse me.
25 THE COURT: Wait, Mr. Rosen. Hold up a second.
1 Liz, go off the record.
2 (Off the record at 1:51 p.m.)
3 THE COURT: You have to wait for her when I say that.
4 Go ahead.
5 When I say, "Go on the record, please," it takes a
6 minute for her to actually get us on the record, -
7 MR. ROSEN: I apologize.
8 THE COURT: - so you can't start talking right away.
9 MR. ROSEN: I apologize.
10 BY MR. ROSEN:
11 Q. Okay. In response to questions by Mr. Zlotoff you did - you
12 never did disclose yesterday that this process of Mr. Henson
13 coming into you and asking you for information and waving these
14 sheets was more than one day, did you?
15 A. I did. I remember that I did.
16 Q. You remember - may I help refresh your recollection, ma'am,
17 it was only when I cross-examined you and started asking you the
18 date - the date and the days that this happened, that you then
19 offered it was over a period of three or four days.
20 Does that refresh your memory?
21 A. I don't remember when I said it. I just remembered that I
22 said that it was over several days.
23 Q. In other words, you're telling us that you can't - today, on
24 Tuesday, you cannot remember an event, your testimony from
25 yesterday as to whether you said three or four days during my
1 cross-examination or during Mr. Zlotoff's direct? You're
2 telling us you cannot remember that; is that right?
3 MR. ZLOTOFF: I'm going to object, Your Honor. I - I
4 don't see the point in this line of inquiry. I think it's more
5 like badgering than attempting to elicit anything that's of
7 THE COURT: The scope of cross is broad. It
8 approaches badgering, but I'll allow it.
9 BY MR. ROSEN:
10 Q. Can you answer my question, please?
11 A. No, I can't remember which question or whose question it was
12 in response to.
13 Q. And a moment ago you just testified, if I heard you
14 correctly, ma'am, that - in describing what looked strange to
15 you that Mr. Henson might have filled these out or part of these
16 out while he was out of town. Do you recall saying that about
17 three minutes ago?
18 A. I didn't - I said that he may have been out of town part of
19 the time over the time that he was filling this out. I don't
20 remember that I said he filled it out out of town, I don't know.
21 Q. Other than the portions which you've now identified as
22 Exhibit A then, ma'am, is it your sworn testimony that the
23 entirety of this exhibit is in your husband's hand?
24 A. No. Because now I have reason to doubt that.
25 Q. Did you have a discussion with anybody after court yesterday
1 on this subject?
2 A. Yes.
3 Q. With who?
4 A. With my husband.
5 Q. Uh-huh. Did you have a discussion with anybody else?
6 A. No.
7 Q. Either - between the time you left the witness stand
8 yesterday afternoon and when you assumed the witness stand a few
9 minutes ago, did you discuss this with anybody else?
10 A. I don't remember discussing anything about the handwriting
11 or these schedules with anyone else.
12 Q. Well, it's something you would remember if it happened
13 within the last 21 hours, isn't it, ma'am?
14 A. Yes. I don't - I don't remember discussing it with anyone
16 Q. Okay. I would like to read to you from Exhibit 289, and I
17 begin at page 128, line 4. This is the sworn testimony of your
18 husband. You can follow along with me if you want, ma'am. You
19 do have a copy of the exhibit.
20 Starting on page 128: "QUESTION: Okay. Mr. Henson,
21 did there come a time when you filed the petition in bankruptcy?
22 "ANSWER: Yes.
23 "QUESTION: Okay.
24 "ANSWER: Did I fill it out? No.
25 "QUESTION: Huh?
1 "ANSWER: I didn't fill it out, though.
2 "QUESTION: Who did?
3 "One of Mr. Berry's assistants.
4 "Do you remember his name" - "QUESTION: Do you
5 remember his name?
6 "ANSWER: No.
7 "QUESTION: Is it a he or she?
8 "ANSWER: He, but I don't remember the name.
9 "QUESTION: Now was this at a time when it was - when
10 Mr. Berry was at Music?"
11 MR. ROSEN: For Your Honor's edification, Music is the
12 name of a law firm, Music, Beeler (phonetic) in Los Angeles.
13 BY MR. ROSEN:
14 Q. "ANSWER: I don't remember. It was about the time that he
15 changed women."
16 MR. ROSEN: I believe the correct statement was
17 changed positions, but I don't think Mr. Berry was changing
18 women. He was changing law firms.
19 BY MR. ROSEN:
20 Q. "QUESTION: Okay. Now can you describe for me what this
21 person looked like?
22 "ANSWER: No.
23 "Where you there physically when the person filled it
25 "ANSWER: No.
1 "How did it come about that the person filled it out?
2 "ANSWER: I talked to the person on the phone, and
3 they filled it out.
4 "QUESTION: And so while they physically wrote these
5 entries, you were the one who provided the information?
6 "ANSWER: To the best of my ability, yes.
7 "QUESTION: Okay.
8 "ANSWER: Understand of course that I don't deal with
9 our finances, and so those were off-the-top-of-my-head guesses.
10 "QUESTION: Okay.
11 "ANSWER: So it may not be at all accurate.
12 "QUESTION: I understand - okay. I understand.
13 "ANSWER: I do not know that we are going in the hole
14 every month" - "I do know that we're going in the hole every
16 "QUESTION: Okay. But the thing I was interested in
17 is all of the handwritten entries on this bankruptcy petition
18 and summary of schedules were physically placed there by this
19 person in Mr. Berry's office as a result of what you told him on
20 the phone?
21 "ANSWER: No.
22 "Well," - "QUESTION: Well, did you make any? Where
23 did I go wrong. Did you make any of these entries?
24 "ANSWER: No. But a lot of the entries were made just
25 from standard tables that they use.
1 "QUESTION: Okay. But in terms of any entries that
2 related to items particular to your finances, they were based
3 upon information you provided over the telephone?
4 "ANSWER: That's correct."
5 Does that help refresh your recollection, ma'am, that
6 Mr. Henson did not fill these schedules, Central District of
7 California Bankruptcy Schedules out, anywhere in your presence?
8 MR. ZLOTOFF: I'm going to object. She cannot
9 possibly have a recollection of Mr. Henson's testimony at a
10 deposition that she wasn't present at, and that's what she's
11 asking -
12 THE COURT: Sustained.
13 BY MR. ROSEN:
14 Q. My question is only does that cause you to change your
16 MR. ZLOTOFF: Asked and answered, Your Honor.
17 THE COURT: Overruled.
18 THE WITNESS: I do have a correction about my
19 discussing it with anyone. Just before we came in, I discussed
20 with Mr. Zlotoff that we were - this business about the
21 handwriting. So that -
22 BY MR. ROSEN:
23 Q. And what did you and Mr. Zlotoff say to each other?
24 A. I said - I don't remember. I said that I had talked with
25 Keith about it.
1 Q. What else did you tell Mr. Zlotoff just before court
3 A. I believe we were discussing the possibility of calling Mr.
4 Berry as a witness.
5 Q. Anything - now when you say you discussed it with Mr.
6 Zlotoff, this was out in the hallway here in the courtroom?
7 A. Yes.
8 Q. Within a few minutes before this case was called?
9 A. Yes.
10 Q. What else do you believe you discussed with Mr. Zlotoff
11 about 35 minutes ago?
12 A. I think it was all about possibly calling Mr. Berry as a
13 witness about this business of filling out the bankruptcy forms.
14 Q. Okay. Now continuing on this subject on page 134, line 5:
15 "QUESTION: Let me see if I can address this" -
16 THE COURT: Are you still at 289?
17 MR. ROSEN: Exhibit 289, yes. Page 134, line 5.
18 BY MR. ROSEN:
19 Q. "QUESTION: Let me see if I can address this another way
20 which might be for efficiency. I want to show you what has been
21 marked as Henson Exhibit 6, and this is the summary of the
23 And this witness says, "I don't know that I ever
24 looked at those schedules.
25 "QUESTION: Okay.
1 "ANSWER: So what's on them is as much of a guess to
2 me as anybody else.
3 "QUESTION: Okay. Well, actually what I'm going to
4 ask you I think you'll be able to answer. Here's page 1 of the
5 exhibit. Are any of those entries in your hand?
6 "ANSWER: No.
7 "QUESTION: Okay. So this is, as you would understand
8 it then, the entries made by the person in Mr. Berry's office?
9 "ANSWER: Right.
10 "QUESTION: Based on the telephone discussion with
12 "ANSWER: Right.
13 "QUESTION: Okay. The same question on page 2?
14 "ANSWER: Right.
15 "QUESTION: The same -
16 "ANSWER: The same answer.
17 "QUESTION: The same process, all right. The same
18 answer on page 3?
20 "QUESTION: On page 4?
22 "QUESTION: On page 5 of the exhibit, the same
24 MR. ROSEN: And it continues on. I will not read the
25 entire thing, Your Honor. We went through every single page of
1 Exhibit 6, and this witness has testified - Mr. Henson testified
2 other than the signature, he filled out none of them.
3 The exhibit's in evidence before you, and I will not
4 bore you with reading every line.
5 BY MR. ROSEN:
6 Q. Having heard that now, Ms. Lucas, can you please explain to
7 the Court how it came about that you provided this testimony
8 with - complete with a description of Mr. Henson's agitation,
9 exhaustion, worry as he ran back and forth filling out these
10 bankruptcy petitions - schedules? Can you explain that to us?
11 MR. ZLOTOFF: I'm going to object. He's talking about
12 two different things. The sche- - there's been no foundation
13 whatsoever that Exhibit 6 or Exhibit A is the same thing that
14 Mr. Henson was waiving at Ms. Lucas sometime in January or
15 December, I can't remember what month it was. There's been no
16 foundation that those are the same documents.
17 MR. ROSEN: Excuse me. There's been no evidence
18 offered that there was any other bankruptcy schedule. The
19 record reflects it's the only one -
20 MR. ZLOTOFF: That's not correct. That's not correct.
21 In fact, one -
22 MR. ROSEN: As of June of '98 -
23 MR. ZLOTOFF: In fact, one -
24 THE COURT: Wait. You don't talk to him and you let
25 him finish. And you don't interrupt each other. Stop. We're
1 going to go slowly.
2 MR. ZLOTOFF: Okay.
3 THE COURT: You have the floor.
4 When you're ready, Mr. Rosen, you will sit down, and
5 Mr. Rosen will stand and he will talk.
6 MR. ZLOTOFF: Right.
7 Mr. Rosen is constantly -
8 (Cell telephone ringing.)
9 THE WITNESS: Oh, dear. I'm sorry. That's my
10 telephone. I forgot to turn it off -
11 THE COURT: Okay. Go off the record, please.
12 (Off the record from 2:02 p.m. to 2:03 p.m.)
13 MR. ZLOTOFF: Mr. - Mr. Rosen has constantly referred
14 to the fact throughout the proceedings that Mr. Henson sometime
15 in December, first, prepared a bankruptcy petition and was ready
16 to file it then but for the fact that this circuit court - or
17 the District Court case was postpone for some reason, and then
18 he filed it in February when he knew the case was starting. So
19 there's no - it's already been established by Mr. Rosen, and I
20 think one of his exhibits is even to that fact that - that there
21 was a petition that was commenced, not filed, but roughed out in
22 December of the prior year.
23 MR. ROSEN: May I respond?
24 THE COURT: Sure.
25 MR. ROSEN: This -
1 THE COURT: Although it doesn't make any difference.
2 I would have allowed you ask the question.
3 MR. ROSEN: This testimony by Mr. Henson relates to an
4 Exhibit 6 which is attached which is the exact document filed in
5 the Bankruptcy Court on the 10th of March. In it he's
6 testifying he has not - he did not fill out in his hand a single
7 part of this document.
8 The witness has testified that as to this very
9 document, not some prior one, as to this very document, Exhibit
10 A, she observed him doing it. She further identified it as his
11 handwriting. Somebody is terribly inaccurate.
12 Counsel says that there was another petition in
13 December, okay. Counsel has not offered any petition filed or
14 even prepared in December. And, in fact, this is the petition
15 in December because what happened is, as is apparent in which
16 we've argued, he took a - the petition, not the schedules, we're
17 talking about the two-page petition, and crossed out the date
18 "December," and wrote in a date, "February." That has nothing
19 to do with schedules.
20 And if counsel wants to represent that Mr. Henson had
21 at some previous time before, filed - prepared some other
22 schedules to support a bankruptcy petition prior to this one, I
23 would waive my objection to late production and allow Mr.
24 Zlotoff to put in the exhibit, because we don't have one.
25 Now may I proceed with the question, Your Honor?
1 THE COURT: Sure.
2 THE WITNESS: What was the question?
3 BY MR. ROSEN:
4 Q. I'll rephrase the question.
5 Ms. Lucas, the fact of the matter is that you met with
6 Mr. Zlotoff a week ago and Mr. - in the course of that, Mr.
7 Zlotoff explained to you what the testimony would be needed in
8 order to support Mr. Henson's request for confirmation of his
9 plan, didn't he?
10 A. No.
11 Q. You don't know anything about bankruptcy law, do you, Ms.
13 A. Only what I've learned over the last five years.
14 Q. Okay. Now, Ms. Lucas, did it - is it incorrect to say that
15 you then conjured up this story about Mr. Henson filling this
16 document out in your home, the schedules, running into you in a,
17 quote, agitated state, et cetera? Didn't you make that up?
18 A. No.
19 Q. Is it still your testimony, ma'am, that Exhibit A, Mr.
20 Henson's Exhibit A, other than the one or two items that you've
21 identified that you had questions on, is it still your testimony
22 that this is your husband's handwriting?
23 A. It's my testimony that I - I absolutely recognize some of
24 his handwriting and with the rest I must have been mistaken.
25 Q. Um-hum. Okay. Now yesterday Mr. Zlotoff asked you a couple
1 of questions about some books, Mr. Henson's books. You recall
3 A. Yes.
4 Q. How many books did Mr. Henson have at the house?
5 A. He had probably a hundred paperbacks and a few hardbacks.
6 Q. So, what, 150 in all; would that be a fair estimate?
7 A. It might have been more. I never counted them.
8 Q. Well, tell me how much more might it have been?
9 I want you to think back, ma'am. You testified
10 yesterday to not only the existence of these books but to your
11 opinion of the value. I'm not asking you for an exact number,
12 but if 150 is your best estimate or 100, then just say so.
13 A. Well, I'm trying to separate out - because we - we tended to
14 shelve our books together.
15 Q. I'm asking you about Mr. Henson's books.
16 A. Yes, I know you are. I'm just trying to recollect what the
17 volume of them might have been.
18 They probably would have covered half the back wall,
19 not - not including the doors, -
20 Q. Ma'am, I don't know -
21 A. - if - if you'd had shelves -
22 Q. - what the back wall. I asked you for an estimate. You
23 were able to provide in response to Mr. Zlotoff's question an
24 estimate of their value.
25 Now I'm asking you to please give us your best
1 recollection, ma'am, as to how many books there were?
2 THE COURT: And if you don't know, you're allowed to
3 say you don't know.
4 BY MR. ROSEN:
5 Q. Or you don't remember, if that's the case.
6 THE COURT: Well, it's because you don't remember or
7 you never knew how many it was is a different question, but you
8 - if you don't know, you don't know. If you don't remember, you
9 don't remember. If you remember, then you can testify as to
11 You're not required to guess and you - and you're
12 required to the best of your ability if you have an answer.
13 THE WITNESS: I don't know how many there were.
14 BY MR. ROSEN:
15 Q. You said a moment ago there were approximately a hundred
16 paperbacks. Is that your recollection now or do you care to
17 change that testimony?
18 A. I'm trying to estimate. I'm trying to guess, because I -
19 THE COURT: You're not required to guess -
20 THE WITNESS: - haven't ever counted them.
21 THE COURT: You're not required to guess.
22 BY MR. ROSEN:
23 Q. Ms. Lucas, when was the last time you saw Mr. Henson's
25 A. I saw some of them when I packed them, -
1 Q. Okay.
2 A. - just -
3 Q. And the question is when?
4 A. Oh, two or three days ago. I have one box left, one small
6 Q. Now you say you saw some of them. Have some of them been
7 removed before two or three days ago?
8 A. Yes.
9 Q. When?
10 A. Over the course of the last year.
11 Q. In other words, you sent Mr. Henson certain boxes up in
13 A. I took some to him. I sent some to his family. I sent - I
14 took some to the - to trade for other books at bookstores. I
15 sent some to other addresses. I gave some to archives. It's
16 been a continuing process. It's been confusing -
17 Q. Ms. Lucas, -
18 A. - and stressful.
19 THE COURT: Don't interrupt her.
20 Go ahead. Finish your answer.
21 THE WITNESS: I think I finished, Your Honor. Thank
23 THE COURT: Well, I think I overlapped you. You said
24 something -
25 THE WITNESS: I'm sorry. I said that it was a process
1 that had been confusing and stressful.
2 BY MR. ROSEN:
3 Q. And this process began approximately May of 2001, when Mr.
4 Henson left for Canada?
5 A. In - I would say in late May, yes.
6 Q. Now I want you to think back then, ma'am, to May 2001, the
7 last time these books were all assembled in your house. So you
8 don't have to think back to 1998, when the bankruptcy schedule
9 was prepared. Just think back to May of 19- - of 2001. What is
10 your best estimate of the number of books that were there?
11 MR. ZLOTOFF: Objection. What's the relevance of that
12 particular date?
13 MR. ROSEN: It's cross-examination. The witness has
14 provided an opinion, she doesn't know how many books there are.
15 THE COURT: No, the date, is he's asking you -
16 MR. ROSEN: That's the last day she saw them all
17 together in one place, before she started giving them out.
18 THE COURT: Yeah. That assumes no books came in and
19 went out between then and the bankruptcy petition?
20 MR. ROSEN: That's my next question, Judge, but you
21 know I can only ask one question at a time.
22 THE COURT: Right. But he's made a relevancy
23 objection, and when you made a relevancy objection to the date,
24 we talked about the bankruptcy petition.
25 MR. ROSEN: Your Honor, if I first am allowed to ask
1 her how many books there were in May of 2001, I can then ask her
2 whether that number had been different, whether any books were
3 added or subtracted since 1998.
4 THE COURT: If you had told me that, that would have
5 been fine, but I had a relevancy objection. So I wanted to deal
6 with the relevancy objection.
7 MR. ROSEN: Okay. So can I have an answer to the
8 question, Judge?
9 THE COURT: Sure.
10 BY MR. ROSEN:
11 Q. What's the answer, Ms. Lucas?
12 A. I would still have to guess because I'm looking at volume
13 and - and I don't know whether to include in that magazines -
14 Q. No. If I may interrupt you. I've only asked about books,
16 A. All right.
17 Q. I have not asked about magazines, and your testimony
18 yesterday did not include magazines. So just books, paperbacks
19 and hard covers.
20 A. Well, probably 150 paperbacks and possibly 50 to 75 hard
21 cover books.
22 Q. Okay. Now I'll ask the question I just previewed for the
23 Court. If on May of 2001 there were a total of about 225 books,
24 was that significantly different more or less than the total
25 that existed in February and March of 1998? Only of Mr.
1 Henson's books now.
2 A. I don't think it was significantly different.
3 Q. All right. Now yesterday you testified, ma'am, that in your
4 opinion you - that you had an opinion as to the value of these
5 books. Do you recall that testimony?
6 A. Yes.
7 Q. Can you tell me what your opinion was?
8 A. I think I said 4- or 500 at the most, under the best
10 Q. And - and you formed that opinion when? During the time you
11 were preparing with Mr. Zlotoff to testify here?
12 A. No. I just made a guess at the time.
13 Q. No. I'm saying before offering us that opinion yesterday,
14 when was the first time that you thought about the question.
15 Like, how much are Mr. Henson's books worth, and formed an
16 opinion that it was 4- or $500? When was the first time you
17 thought about that, ma'am?
18 A. Oh, probably - I - I guess it's been a question how much our
19 belongings have been worth since the beginning of the bankruptcy
21 Q. So you're telling me that you considered in 1998 and formed
22 an opinion at that time, you did, that Mr. Henson's books were
23 worth 4- or $500?
24 A. No. I'm telling you that I started thinking about it at
25 that point.
1 Q. Let me repeat my question. When was the earliest time that
2 you formed an opinion that Mr. Henson's books were worth 4- to
4 A. I think that I came to that conclusion when the question was
5 asked, that I realized that that's about the range that I had
6 been thinking.
7 Q. You mean when the question was asked yesterday?
8 A. Yes.
9 Q. And before the question was asked, you had not formed an
10 opinion in your mind as to the value of Mr. Henson's books; is
11 that right?
12 A. I had been thinking about it.
13 Q. But you had not formed an opinion as to the value; is that
15 A. I hadn't added it up.
16 Q. Am I correct that you had not formed an opinion as to the
17 opinion you gave us yesterday of 4- or $500? You had not formed
18 that before giving your answer yesterday; is that right?
19 A. I had not added up what I thought was the value of the books
20 in question.
21 Q. Well, when you say "added up," does that involve a process
22 of identifying each book, placing a value on it, and then adding
23 them up?
24 A. No.
25 Q. Well, then what do you mean by you had not added them up?
1 A. His paperback collection I thought of and I still consider
2 as kind of a lump because there may be a few out of that
3 collection that might have any value beyond a quarter each or a
4 dollar a box. The paperback - the hardback boxes I had
5 considered, well, let's see, that those probably have no value,
6 those probably have $5-a-box value, and there might be a couple
7 that have more value.
8 And I hadn't really thought about adding it up until
9 the question was asked.
10 Q. When did you form the opinion that Mr. Henson's paperback
11 books were worth a dollar a box?
12 A. I didn't say that they were. I was just trying to
13 illustrate my thinking.
14 Q. Don't illustrate. Tell us what your thinking was, ma'am.
15 Did you form an opinion at some time that Mr. Henson's paperback
16 books were worth a dollar a box? Yes or no.
17 A. Some of them were. Some of them weren't -
18 Q. Did you form the opinion that - that his - any of his
19 paperback books were worth a dollar a box?
20 A. Yes.
21 Q. When did you form that opinion?
22 A. When I was trying to decide whether it would be worth taking
23 them to a bookstore or worth listing them on craigslist or worth
24 trying to learn eBay to - to find a way to - to sell them.
25 Q. Ms. Lucas, if I could ask you to do me a favor we will move
1 along a lot quicker. When I ask a question that starts with the
2 word "when," I am ordinarily asking not to correlate to some
3 other event that I don't know when that happened, but to give me
4 either a date. And if you don't remember a date, an approximate
5 date. If you want to say February 1st, 2002, if that's your
6 recollection, fine. If you want to say in the spring of 2001,
7 that's okay. So let me repeat my question.
8 When was it that you first formed an opinion that any
9 of Mr. Henson's paperback books were worth $1 a box?
10 A. I don't remember a date.
11 Q. When was it that you formed any opinion as to the value of
12 Mr. Henson's hard cover books?
13 A. I don't remember a date.
14 Q. So did you form an opinion as to - at any time before
15 yesterday of the value of Mr. Henson's hard cover books?
16 A. Yes.
17 Q. And did you form an opinion as to the value of each one of
19 A. With the exception of a few that I thought might have
20 distinct value, I considered them as a lump.
21 Q. And what did you consider as a value for the lump?
22 A. I can't tell you that I remember my mental process, just
23 that I -
24 Q. Well, if you cannot -
25 A. - formed some figures in my mind and that I added them up in
1 a very ballpark way for the purpose of the question.
2 Q. You added them up yesterday on the witness, right?
3 A. Yes.
4 Q. Well, one of the figures you added, ma'am, was the value you
5 had ascribed to his hard cover books. So what was that number?
6 A. I don't remember.
7 Q. You knew yesterday when you added them up, right?
8 A. I just had some fuzzy ideas.
9 Q. Ma'am, my question is you knew yesterday when you added them
10 up and provided an offer - an opinion of 4- or $500, right?
11 A. Yes.
12 Q. Okay. Now with respect to these books, are any of these
13 books left in the house?
14 A. There is a small box that I was about to mail. And
15 actually, -
16 Q. And that's the last -
17 A. - let's see. No, those are just magazines.
18 Q. So you're telling us, if I understand you correctly, that
19 all of Mr. Henson's books, his property, has been removed from
20 the house?
21 A. His -
22 MR. ZLOTOFF: Wait, wait. Objection, books, property,
23 what -
24 MR. ROSEN: Sorry. I strike the word "property." I
25 just meant the books.
1 BY MR. ROSEN:
2 Q. All of his books, hard cover and soft cover, have been
3 removed from the house?
4 A. I - unless I'm misremembering, I believe so.
5 Q. And other than the ones that you've identified you may have
6 traded in or given away, or whatever it is, these books have
7 been shipped outside the country, right?
8 A. No. Some of them I shipped to relatives or to other
9 addresses inside the country.
10 Q. Right. Other than those that you shipped to relatives or
11 exchanged or donated, the ones that you sent to Mr. Henson, you
12 sent them out of the country, right?
13 A. Yes.
14 Q. To Canada, right?
15 A. Yes.
16 Q. And how many of those books, and I'll remind you your
17 estimate was about 225, 150 paperbacks and about 75 hard cover,
18 how many of those books, ma'am, have left the country?
19 MR. ZLOTOFF: I'm going to object. Is there relevance
20 to this? I mean what -
21 MR. ROSEN: I think so.
22 MR. ZLOTOFF: What is the relevance?
23 MR. ROSEN: Is Your Honor looking at me to answer?
24 THE COURT: Yes.
25 MR. ROSEN: Yeah. The relevance is it goes to her
1 credibility. This - Mr. Zlotoff offered her to try to impeach
2 the exhibit, which says the books are worth $5100, by offering
3 testimony that it's not a "1", it's a comma. And I am testing
4 the credibility of this witness, number one. And indeed in the
5 course of it I may stumble onto, as I believe I have, some
6 evidence that you may consider relevant on - on the matters that
7 are before you. The property of the debtor has been removed
8 from the jurisdiction.
9 I think that's relevant, Judge.
10 MR. ZLOTOFF: That the property - what difference does
11 it make that the property of the debtor has been removed from
12 the jurisdiction? I don't even see the relevance of that. I
13 mean if -
14 MR. ROSEN: I believe it's relevant.
15 MR. ZLOTOFF: - the debtor had a bank account in the
16 Bahamas, what possible difference would it make to the question
17 of his net worth that it was in the Bahamas as opposed to
18 shoebox under his bed?
19 MR. ROSEN: My problem is this, we cannot ascertain,
20 having heard this testimony for the first time yesterday,
21 whether or not this is accurate because the books aren't here.
22 THE COURT: Yeah. There's no requirement that he keep
23 his books in his house. But you've got the testimony.
24 MR. ROSEN: Okay.
25 THE COURT: She's already testified, so I don't -
1 MR. ROSEN: I'll move on.
2 THE COURT: - know - okay.
3 MR. ROSEN: I'll move on. If I've - if Your Honor's
4 satisfied I've got the testimony, I'll move on.
5 THE COURT: I don't - I don't know what else you want,
6 so frankly you've got the testimony -
7 MR. ROSEN: Well, -
8 THE COURT: - that some books are - were sent to
9 relatives, some were sent to Canada.
10 BY MR. ROSEN:
11 Q. Ms. - Ms. Lucas, did Mr. Henson have what one would consider
12 to be in the nature of a collectable, namely an old complete set
13 of the Encyclopedia Britannica?
14 A. No.
15 Q. He did not?
16 A. No.
17 Q. Did Mr. Henson have an Encyclopedia Britannica?
18 A. No.
19 Q. And of course -
20 A. At least I don't know - he did have an encyclopedia, but I -
21 I don't think it was Britannica.
22 Q. Okay. Let me - I don't want to quibble - I don't want to -
23 A. And if it was collectable, I made a terrible mistake because
24 I gave it away for nothing.
25 Q. And you did that with Mr. Henson's consent?
1 A. We didn't discuss books individually except ones that he
2 cared personally about.
3 Q. Okay. Now this encyclopedia that you gave away, Mr.
4 Henson's property, right?
5 A. I guess.
6 Q. And when was this encyclopedia from, what year?
7 A. I - the - the encyclopedia I remember having was from the
9 Q. 1942, does that help refresh your recollection, ma'am?
10 A. Not really, because I don't remember looking at the date on
12 Q. And how many volumes of this encyclopedia from 1942 were
14 A. I don't remember. It constituted a shelf.
15 Q. I don't know how big your shelves are, so perhaps you could
16 help us out, ma'am, think back to when you last saw them and
17 tell us how many volumes there were. Approximately.
18 A. I don't know. There might have been 10.
19 Q. And do you have - you yes it's not Britannica, but it's some
20 other encyclopedia -
21 A. I - I don't know. I didn't pay any attention.
22 Q. Well, when I asked you the question a few minutes ago you
23 denied it was an Encyclopedia Britannica, are you rethinking
25 A. I'm - I'm sorry. I should have said that I did not know.
1 Q. Okay. Let me read to you, ma'am.
2 THE COURT: Can I have a copy before you read to her?
3 MR. ROSEN: You have it.
4 THE COURT: It's from 289?
5 MR. ROSEN: Yeah.
6 BY MR. ROSEN:
7 Q. Page 142, starting on line 5:
8 "QUESTION: Do you have books located at your
9 residence valued at $5,000?
10 "ANSWER: That was his - that was his guess."
11 MR. ROSEN: And the preceding page, Your Honor, places
12 the "his" in context, Mr. Berry's assistant who was filling this
14 BY MR. ROSEN:
15 Q. "I pro-" - "I probably do have a thousand books. If you
16 value them at a dollar a piece, that would be - that would be
17 $5,000 worth of books.
18 "So you mean" - "QUESTION: So you mean the person in
19 Mr. Berry's office made the estimate of what they were worth?
20 "ANSWER: Yes, must have.
21 "QUESTION: You told him you had a thousand books.
22 "My guess is" - "ANSWER: My guess is I do."
23 Does that help refresh your recollection at all,
24 ma'am, on the number of books that Mr. Henson had?
25 A. I think he was counting magazines.
1 Q. How do you know that his testimony on the word "books" meant
2 magazines, ma'am?
3 A. I don't. I just - I don't see -
4 Q. You're guessing.
5 A. - how he got to a thousand books unless he was counting his
6 science fiction collection, which are book shaped.
7 Q. But what I just read to you, the word "magazine" is not in
8 there, is it?
9 A. No, sir, it isn't.
10 Q. Okay. Now yesterday you also testified to some computer
11 equipment that existed in the home.
12 THE COURT: We all know that a thousand times a dollar
13 is a thousand, not 5,000.
14 MR. ROSEN: No, no. There's more. There is a 1942 -
15 THE COURT: What's more?
16 MR. ROSEN: - complete - we're going to get to it.
17 19- -
18 THE COURT: No, but he just - he just did the math for
19 us on page 142.
20 MR. ROSEN: Yes.
21 THE COURT: If you've - that - "Do you have books
22 located at your residence valued at $5,000?
23 "That was his - that was his guess. I probably do
24 have a thousand books. If you value them at a dollar a piece
25 that would be - that would be $5,000 worth of books."
1 So he's multiplied a thousand times a dollar and
2 gotten 5,000.
3 MR. ROSEN: No. I think that's wrong because -
4 THE COURT: Okay. Well, that's what I've seen, so -
5 MR. ROSEN: Well, that's okay. Because what he -
6 what's not included in the multiplication is the Encyclopedia
7 Britannica set, which we'll get to.
8 THE COURT: Okay.
9 BY MR. ROSEN:
10 Q. Yesterday you testified as well, Ms. Lucas, as to some - you
11 were asked the question about computer equipment that was at the
13 A. Yes.
14 Q. Now let me see if I understand something. Your husband's
15 occupation was as a computer scientist, right?
16 A. He is a computer consultant.
17 Q. And part of the things he does then as a computer consultant
18 is create software?
19 Or don't you know, ma'am?
20 A. He doesn't - well, sometimes he writes programs, sometimes
21 he corrects other people's programs.
22 Q. And in order to do that he is - in order to do his work as a
23 computer consultant, would I be correct in assuming that he
24 needs computers?
25 A. Yes.
1 Q. And, in fact, ma'am, he had at the house three computers
2 with a good amount of peripheral equipment that he used in his
3 business, didn't he?
4 A. There was one computer which was borrowed. There was the
5 one I described I guess yesterday which was the - the old 3.0 or
6 whatever it was, 3.1 Windows machine. And he had I think an old
7 Apple. At one time he had a laptop which was broken and at
8 another time he had another laptop which was also broken -
9 Q. I'm not asking what he had 20 years ago, ma'am.
10 A. No, I'm not talking -
11 Q. Your testimony -
12 A. - 20 years ago.
13 THE COURT: Wait, wait, wait. Stop, stop, stop. You
14 can't interrupt each other. So -
15 MR. ROSEN: I didn't interrupt.
16 THE COURT: Your voices were overlapping each other.
17 You can't interrupt each other. You have to let her finish her
18 answer and she has to let you finish her - your question. And
19 then when one is talking the other cannot talk. Otherwise I
20 will produce a poor record.
21 MR. ROSEN: Okay.
22 THE COURT: So be very careful of it. Allow 30
23 seconds or 20 seconds to pass after the other person is
24 finished, both of you.
25 THE WITNESS: Yes.
1 MR. ROSEN: In a bit of levity, Your Honor, in 20
2 hours I cannot afford 30 seconds in between questions.
3 BY MR. ROSEN:
4 Q. Ms. Lucas, I'm asking you to focus on the computers that
5 were - your husband owned when he - in February and March of
6 1998. So please don't tell me what he used to have, okay?
7 Now what did he - and don't tell me what he borrowed
8 for somebody else. What computers did he own in February of
10 A. What I remember is that he had that machine that was a 3.1
11 Windows Microsoft operating system. He had a broken laptop and
12 he had an old Apple - in fact, I think he had two old Apple
14 Q. And the laptop is something you say he borrowed from
15 somebody else, or somebody else's equipment?
16 A. No. The laptop, I - I think was his.
17 Q. Okay. So he had a collection of old broken down equipment;
18 is that fair to say -
19 A. Yes, basically.
20 Q. And you provided yesterday your opinion as to what this
21 computer equipment was worth, right?
22 A. Yes.
23 Q. Tell us again what you say this computer equipment was
25 A. I don't remember what I said. I think I said it was worth
1 under a thousand, probably 4- or 500. I just don't remember
2 what -
3 Q. You don't remember what you said 24 hours ago, ma'am?
4 A. No, I don't.
5 Q. By the way, is there any condition that you're under today
6 whether it be medication or anything else which would impair
7 your memory today?
8 A. Yes. It's called stress.
9 Q. And you were under the same stress when you testified
10 yesterday, right?
11 A. I've been under the same stress for the past five years.
12 Q. My question is were you under the same stress yesterday?
13 A. Yes.
14 Q. When you testified?
15 A. Yes.
16 Q. Is there any difference in terms of your ability to
17 recollect between today and yesterday?
18 A. Not really.
19 Q. Yesterday, ma'am, if I remember correctly you were able to
20 recollect things going back four years, including, for example,
21 the balance in your Wells Fargo checking account in 1998,
22 weren't you?
23 A. I - I thought I could.
24 Q. Okay. Ma'am, let me see if I can read you something and
25 then I will ask you if this will change your - cause you to
1 change your testimony. Exhibit 289, page 141, starting on line
3 "QUESTION: Okay. All right. Let's go over a couple
4 of these things then, a couple of the entries on this bankruptcy
5 schedule. And you actually picked up one or two that didn't
6 make any sense to me, so we'll see if we can figure it out.
7 "ANSWER: Well, -
8 "QUESTION: If you will look at the -
9 "ANSWER: Actually if you go and consider the new
10 price of all the computers I have ever owned, -
11 "QUESTION: Yeah.
12 "ANSWER: - it would certainly exceed $9,000.
13 "QUESTION: Yeah. But it's not the new price. It's
14 current market value is the -
15 "ANSWER: Right.
16 "QUESTION: - is the information called for.
17 "ANSWER: He may have put $9,000 in there to be
18 absolutely certain that he would capture - capture absolutely
19 anything that I possibly had in the way of computers."
20 Does that cause you to change your view as to the
21 value of the computers that Mr. Henson owned?
22 MR. ZLOTOFF: Objection. He hasn't read the next two
23 sentences which -
24 THE COURT: Could you please tell me the page number?
25 MR. ZLOTOFF: He's on page 142 of Exhibit 289.
1 MR. ROSEN: I'm sorry. Qu- - I meant to continue.
2 "QUESTION: All right."
3 THE COURT: Wait, wait, wait. He's not on 142, right?
4 MR. ROSEN: 142.
5 THE COURT: 142 is about books.
6 MR. ROSEN: No, no. Lines 3 and 4 I think counsel's
7 referring to.
8 "QUESTION: All right.
9 "ANSWER: But I don't have anything close to that."
10 That's what he's asking. I'm not offering that.
11 BY MR. ROSEN:
12 Q. Does this testimony cause you to have any change in your -
13 excuse me. Has what I've read to you -
14 THE COURT: Wait, wait, wait.
15 Do you understand - have you read this? Do you
16 understand what just happened? Have you read 141 and 142?
17 THE WITNESS: Yes. Yes, Your Honor, I have.
18 THE COURT: Okay. That's fine.
19 BY MR. ROSEN:
20 Q. And my only question, Ms. Lucas, is does this, having read
21 this testimony, the sworn testimony given by your husband in
22 June of 1998, does this cause you to change your testimony in
23 any way?
24 A. No.
25 Q. Okay. Now, Ms. Lucas, you talked about - I want to get on
1 something else. You talked about packing up and sending some
2 books, et cetera, to your husband. Am I can, ma'am, that you
3 recently in - I guess in anticipating of selling your house, you
4 packed up the belongings that were in the house of both you and
5 your husband?
6 A. I started packing up belongings as long ago as last May or
7 June. And I put them into storage, so the packing process began
8 almost a year and a half ago. Many boxes I only briefly opened
9 just to make certain of their contents, whether they were books
10 or dishware.
11 Q. Okay. Now when you started the process of packing up the
12 contents of your house - and does that include all the contents,
13 the furniture and, you know, your - your property, Mr. Henson's
14 books, anything and everything that was in the house that
15 belonged to either you or your husband?
16 A. No.
17 Q. What did you start packing a year - in May of 2001?
18 A. Books, memorabilia, papers, anything that I felt that I
19 didn't need to use at the time and that I could put into
21 Q. So you kept the furniture in the house, right?
22 A. At that time when I first started.
23 Q. Okay. And did these - these boxes that you packed up, you
24 put into storage, that was somewhere here in Santa Clara County?
25 A. No.
1 Q. Where were they in storage?
2 A. In San Francisco County.
3 Q. Okay. And did you pay somebody to - some company to store
5 A. Yes.
6 Q. How much was the charge?
7 A. I think that I started with one that ran 50 or $70 a month.
8 Q. And with respect to the materials you put in storage back
9 in, I think you said, May of 2001?
10 A. Maybe June.
11 Q. Okay. June of 2001. So you paid somewhere between 50 and
12 $70 a month starting in June of 2001 to store these items of
13 personalty in San Francisco, right?
14 A. Yes.
15 Q. And when - did there come a time when you stopped paying
16 this storage?
17 A. Yes.
18 Q. When was that?
19 A. When I shipped everything that I could manage to get onto a
20 U-Pack truck to Canada.
21 Q. And when was that?
22 A. September -
23 Q. Remember my - my request of you earlier when I say "when"?
24 A. That is - that is rather fixed in my memory. It is
25 September 15th.
1 Q. September 15th of this year?
2 A. Yes.
3 Q. Okay. So for a period from about June of 2001 till
4 September of 2002 you paid the storage facility 50 to $70 a
5 month to store the belongings of you and Mr. Henson, right -
6 some of them?
7 A. Some of them and then more when I had to rent the house.
8 Q. When did it - when did you rent the house, ma'am?
9 A. In October of last year.
10 Q. Okay. Now when you rented the house in October of 2001, was
11 that an occasion for you removing more things from the house?
12 A. Yes.
13 Q. Did you remove the furniture at that time?
14 A. Everything the tenants did not wish to use.
15 Q. Okay. And did you then put that in storage?
16 A. Yes.
17 Q. In San Francisco?
18 A. Yes.
19 Q. And how much additional per-monthly charges were there for
20 that additional - those additional items that you put in storage
21 in October of 2001?
22 A. That was another 75 a month.
23 Q. So starting in about October of 2001 you were paying in
24 round numbers approximately $150 a month for storage?
25 A. I think with insurance it came to maybe 180, 100- -
1 Q. A hundred and eighty.
2 A. - something like that.
3 Q. And that continued until for - for one year, until September
4 of this year when you put them on a U-Haul truck?
5 A. Yes.
6 Q. And have they now - have all of those items now been removed
7 from the state of California that were on the U-Haul truck?
8 A. It wasn't a U-Haul truck but, yes, that truck did go to
10 Q. Now this truck, is this a truck that a moving company uses?
11 A. It's what is called is a U-Pack. That is it's - I was
12 responsible for packing the items onto the truck and they were
13 simply responsible for moving it from one spot to another.
14 Q. And I assume the "they" is some moving company?
15 A. It's a U-Pack company. It's a specialized kind of company,
16 a transport company.
17 Q. And this company after you pack it up, they drive it to
18 where you want them to, right?
19 A. It's a trailer, and they put a cab on it and they drive it.
20 Q. And in this case they drove this truck to Toronto, Canada,
22 A. Not Toronto, but Ontario.
23 Q. Okay. Ontario. The City of Ontario you mean?
24 A. No.
25 Q. Ontario Province?
1 A. Yes.
2 Q. In what - what city in Ontario Province?
3 A. I -
4 MR. ZLOTOFF: I'm going to object, Your Honor. I -
5 I -
6 MR. ROSEN: Never mind. I withdraw the question. If
7 Your Honor's familiar with the geography of Canada, that's
8 sufficient for me as to where Ontario Province is.
9 BY MR. ROSEN:
10 Q. Okay. And how much did it cost - how much did you have to
11 pay this company to move this U-Pack full of things from
12 California to Ontario Province?
13 A. I think it was $1950 plus the $200 we were forced to spend
14 on top of that when Scientologists complained that it was full
15 of explosives and we had to pay the company to - to put a couple
16 of movers in there and take everything off the truck so that
17 Customs could satisfy themselves that it was nothing but
18 household things.
19 MR. ROSEN: I move to strike that answer as not
20 responsive, comments about Scientologists.
21 MR. ZLOTOFF: I don't - I think it's entirely within
22 the broad realm of questions that counsel's asking. It goes to
23 price and she's asking why - and she's testifying why it cost
24 what it did. It's entirely appropriate -
25 MR. ROSEN: I didn't ask why it cost what it did. I
1 asked how much it cost.
2 THE COURT: It is isn't responsive. The $200 is
3 responsive because Customs went through it, so it's 1950 plus
4 200 - plus the 200 was charged because Customs went through it.
5 The fact that the Scientologist claims - claimed there were
6 explosives is not really responsive to the question.
7 MR. ROSEN: Thank you, Your Honor.
8 BY MR. ROSEN:
9 Q. Now the truck, the U-Pack, other than your own personal
10 belongings like clothes or whatever that you still have here in
11 California, did that U-Pack contain all of the possessions of
12 you and your husband?
13 A. There were some things remaining that I didn't manage to get
14 packed in time to go on the truck.
15 Q. Like, for example, there might be another carton of
16 magazines or something?
17 A. Yes. A few papers, a few boxes that I've been slowly
18 packing up and shipping.
19 Q. And did the U-Pack include the three or four computers?
20 A. The U-Pack included a computer that he had been lent, the
21 3.01, an old Apple, and he had - I think there was another one
22 that was - it was - he had - he had a monitor and a disk drive.
23 And there might have been a computer, I don't remember.
24 Q. Among - I want to exclude for a moment from your mind the
25 property that you and Mr. Henson jointly owned, like furn- - and
1 had accumulated during your marriage, like furniture that you
2 testified to yesterday. And I also want to exclude Mr. Henson's
3 property, his computers and his books.
4 Do you have a value for what your personal property
5 was that has been - that was in the house and is now in Canada?
6 You can include everything, just as you did with Mr. Henson,
7 your computers, your books, you know, your clothes, anything
8 that you own.
9 MR. ZLOTOFF: I'm sorry. Do you understand the
10 question? Because I -
11 THE WITNESS: Yes. Yes.
12 MR. ZLOTOFF: - I don't really understand the
14 THE WITNESS: Oh, well, -
15 MR. ZLOTOFF: To me it's ambiguous with regard to
16 exactly what he's trying to ask you to include and exclude
17 versus the kind of value, whether it's retail, whether it's
18 wholesale, whether it's craigslist value, garage-sale value.
19 It's unclear to me what he's trying to elicit from you.
20 MR. ROSEN: I assume by this time Mr. Zlotoff has
21 provided all the prompting he wants for the witness. This is
22 not an objection.
23 MR. ZLOTOFF: It's an objection because the question's
24 ambiguous on its face.
25 THE COURT: You're talking to me, remember?
1 MR. ZLOTOFF: I'm sorry. Right. Sorry.
2 THE COURT: It is correct that you haven't told her
3 what kind of value you want. And that's a reasonable objection.
4 Whether listing all the other - all the various possible kinds
5 of value and I don't know that I would have made the same list
6 but, in any event, the objection is sustained. You should
7 clarify the question to make sure she understands what kind of
8 property you're talking about and what kind of value you want
9 her to use.
10 MR. ROSEN: I would - I will do that, Your Honor.
11 I would also ask for Your Honor to provide an
12 instruction to Mr. Zlotoff that - not to have speaking
13 objections. They only appear to prompt the witness' answer.
14 There is no reason for speaking objections with a witness on the
15 stand. That's totally improper in this proce- - in a trial, to
16 make speaking objections.
17 THE COURT: I understand what you want.
18 And, Mr. Zlotoff, you should curtail to telling me
19 what the grounds are for the objection.
20 MR. ZLOTOFF: I'll do that, Your Honor.
21 BY MR. ROSEN:
22 Q. Ms. Lucas, exclude - I will repeat the question or rephrase
24 Excluding property which you've - which is either
25 joint with you and your husband, like the furniture you
1 identified yesterday, and excluding Mr. Henson's personal
2 property, if you will, books, computers, clothing, if you think
3 just about your personal property, whether it be books,
4 computers, magazines, clothing, your personal property, what is
5 the - what is your estimate of the garage-sale value of them?
6 Of all of that stuff that got on that truck to Canada
7 - all of your stuff. I'm sorry.
8 THE COURT: Look, I'm a little confused. Now we're
9 only talking about what was on that one truck?
10 MR. ROSEN: Yeah. Her stuff -
11 THE COURT: We're just talking about one truck?
12 MR. ROSEN: Her stuff on -
13 THE COURT: Her personal property, -
14 MR. ROSEN: Correct, her st- -
15 THE COURT: - on one truck?
16 MR. ROSEN: Correct.
17 THE COURT: Okay. Do you und- - can you answer the
19 THE WITNESS: I'm just trying to form an estimate,
20 Your Honor.
21 I - I can't think of anything that went on that truck
22 that would fetch more than 2- to $300 under the best of
24 BY MR. ROSEN:
25 Q. How about any of your property that is not on a truck, that
1 either was you sent up to Canada before or is still in your
2 possession here in California? What's your estimate on that?
3 A. I - I can't think it would fetch more than 50 to a hundred.
4 Q. Do you recall testifying yesterday, ma'am, that the entire
5 contents of your house, all of the furniture, everything in your
6 house, was not worth more than $500, quote, including the
7 mattress and the box spring? Do you recall testifying to that
8 yesterday - yesterday?
9 A. I think so.
10 Q. Was it true, ma'am?
11 A. I'm not very good at estimating. I know that the bed, the
12 mattress and -
13 Q. My question, ma'am, -
14 THE COURT: Let her finish. You've got a question on
15 the table.
16 THE WITNESS: I know that the mattress and the box
17 spring were the most expensive thing that we own in my estimate,
18 and they cost new 500. And so I was thinking about that and
19 trying to think if we had anything else that was worth anything.
20 And I - unfortunately I'm just not very good at estimating what
21 things are worth because I don't buy anything.
22 BY MR. ROSEN:
23 Q. Have you finished your answer?
24 A. Yes.
25 MR. ROSEN: Your Honor, I move to strike the answer in
1 its entirety. It's not responsive to the question.
2 MR. ZLOTOFF: Your Honor, I think she did the best she
3 could to explain why she testified the way she did yesterday and
4 why she's testifying the way she is now. I mean he asked the
5 question. If he didn't want the answer, he shouldn't have asked
6 the question.
7 MR. ROSEN: I will ignore the snide remark, Your
8 Honor, from counsel, which inappropriate.
9 The question asks whether or not her testimony was
10 true. That calls for a yes or no answer, not for some
11 explanation about, 'I don't buy things.'
12 MR. ZLOTOFF: Your Honor, her -
13 THE COURT: The objection's overruled.
14 MR. ZLOTOFF: Okay.
15 THE COURT: It's not - I'm not striking her
17 BY MR. ROSEN:
18 Q. Ms. Henson, are you writing something?
19 A. Yes.
20 Q. May I see it?
21 MR. ROSEN: May I approach, Your Honor?
22 THE COURT: I mean she's entitled to make her own
23 personal notes. Why do you get - why are you asking to see it?
24 MR. ROSEN: Your Honor, I -
25 THE COURT: She's writing her own personal note.
1 MR. ROSEN: Mr. Zlotoff hasn't objected. Is Your
2 Honor objecting to my request?
3 MR. ZLOTOFF: I -
4 THE COURT: Well, you don't have the right to walk
5 around my courtroom and say, 'May I see it,' and go over to the
7 MR. ROSEN: I'm not at the witness.
8 THE COURT: So - so -
9 MR. ROSEN: Wait a minute. Let the record reflect,
10 Judge, I am not at the witness, I am at the lectern.
11 THE COURT: I know. You were moving from your chair,
12 where you were seated, toward her.
13 MR. ROSEN: To the lectern to ask your permission to
14 approach the witness.
15 THE COURT: Sit down. You can't approach the witness.
16 Now you want - what we are talking about? We're
17 talking about something you've written?
18 THE WITNESS: Yes. On the yellow pad that's provided
20 THE COURT: And what are those?
21 THE WITNESS: Those are notes to myself.
22 THE COURT: I see.
23 Okay. And you want to see her personal notes?
24 MR. ZLOTOFF: Now I object, Your Honor, unless counsel
25 can give a reason why he's entitled to see notes -
1 THE COURT: And you need to be at the microphone.
2 MR. ROSEN: I - I don't think the record will reflect
3 what Your Honor - Your Honor's nonverbal conduct. You pointed
4 to Mr. Zlotoff and solicited an objection. There was no
5 objection made -
6 THE COURT: I asked if there was an objection by
7 pointing to him.
8 MR. ROSEN: Right.
9 THE COURT: In the sense that we had just talked. You
10 said there's no objection. He rose, and so I acknowledged him.
11 And if you'd please stop putting - throwing your
12 pencil down.
13 MR. ROSEN: Your Honor, I must respectfully ask that
14 you correct the record. You made a statement that I approached
15 the witness. I did not.
16 THE COURT: Well, it was my impression that you did,
17 Mr. Rosen.
18 MR. ROSEN: Your Honor, I was six feet away from you.
19 How could I - it be your impression?
20 THE COURT: I can see you. You're not small, Mr.
21 Rosen. You were passing by.
22 MR. ROSEN: I truly regret this, Your Honor. And I
23 cannot - I obviously cannot defend in your courtroom when you
24 make statements on the record. I just cannot defend it other
25 than to say that that is just simply wrong. I respectfully
1 disagree with your statement and I would ask Your Honor to just
2 note for the record my disagreement.
3 I will also ask Your Honor to note that I have the
4 right - if the witness is making notes of her testimony, I have
5 a right to see those notes. There is no privilege that attaches
6 to those notes.
7 She has been writing throughout the entire time of
8 this cross-examination. I have observed her from here, sitting
9 at my table, writing notes. And I think I would - if the
10 witness were asked, she would say she is writing those notes
11 during the cross-examination. There is no privilege which
12 attaches to those. I would like to see them.
13 I would also like to see if there were any notes that
14 she had written before she took the stand.
15 THE COURT: Well, I'll ask her that.
16 Did you have any notes that you wrote before you took
17 the stand that you brought up with you?
18 THE WITNESS: Not that I brought up with me, no, Your
20 THE COURT: Mr. Rosen, I have to be candid with you.
21 I have never had the issue come up about your, quote,
22 entitlement to notes. If you want to provide me authority that
23 you have entitlement to her notes, I'd be glad to review it.
24 The issue in 12 years on the bench has never come up.
25 MR. ROSEN: And I would respectfully suggest that the
1 person who makes the objection, whether it be counsel or the
2 Court, is the person that must - that has the obligation to
3 demonstrate a ground for objection. And the fact that it's
4 never come up in 12 years in Your Honor's court, with all due
5 respect, I assume there are a lot of things that have never come
6 up in Your Honor's court. But that's not a ground for
8 And unless there is some privilege which no one has
9 claimed, not the witness, not Mr. Zlotoff, or - and the Court
10 has not suggested one, then I don't see what possible basis
11 there is to refuse for me - she's writing now - let the record
12 reflect she's writing now.
13 THE COURT: Yes, I know. But, Mr. Rosen, if you've
14 said, 'I want to see what's in her purse,' and you stood up and
15 started walking toward her, I wouldn't let you see what's in her
16 purse. Even if you claimed you had an absolute right to dump
17 everything in her purse on the floor.
18 Now I may be incorrect as a matter of law as to your
19 right or not right to review her notes, but I'm not going to
20 order her to hand over her notes until you provide me authority,
21 any more than I would require her to dump her contents of her
22 purse on the floor so you could examine them.
23 BY MR. ROSEN:
24 Q. Ms. Lucas, have you been making notes through this
1 A. Yes.
2 Q. And are you writing notes which reflect things that you've
3 testified to?
4 A. I'm writing notes of what is happening in the courtroom.
5 Q. For purposes of refreshing your recollection for further
6 testimony in this case?
7 A. No.
8 Q. For what purpose, ma'am?
9 A. For reporting on this case.
10 Q. Reporting to whom?
11 A. My husband.
12 Q. Okay. Ms. Lucas, let me change subjects for a moment.
13 THE COURT: I - let's let the record reflect that I
14 don't know what the law is on this. I'm trying to be perfectly
15 candid. And so everybody should be aware that I don't know
16 whether Mr. Rosen has a right to see Ms. Lucas' notes or he
18 If Mr. Rosen wanted me to break from his examination
19 because he thought he might be prejudiced because I don't know,
20 I would break and we'd try to check on the law. If he doesn't
21 want me to do that, I will continue, but I alert everybody in
22 the courtroom that I don't know what the law is on this.
23 MR. ZLOTOFF: Could I - could I just - just so this is
24 in the right posture, because Mr. Rosen did make a point. Could
25 I see whether the debtor on her own wishes -
1 THE COURT: This is not the debtor.
2 MR. ZLOTOFF: I'm sorry. - whether Ms. Lucas on her
3 own wishes to divulge her notes to Mr. - Mr. Rosen?
4 Do you wish to give your notes to Mr. Rosen?
5 THE WITNESS: I don't mind if he looks at them. I
6 just don't want him to take them away.
7 MR. ZLOTOFF: Oh.
8 THE COURT: Do you want to look at her notes?
9 MR. ROSEN: I thought that's what I asked five minutes
11 THE COURT: Right. But you - she says she'll let you
12 look at them as long as you don't take them away. Are you
13 willing to just look at them and give them back to her?
14 MR. ROSEN: Your Honor, did I ever suggest I wanted to
15 take them away?
16 THE COURT: Mr. Rosen, I asked -
17 MR. ROSEN: I don't know why you would ask me that -
18 THE COURT: - you a question.
19 MR. ROSEN: I want to look at them.
20 THE COURT: Just answer my question.
21 MR. ROSEN: Ye- - the answer to your question is my
22 request has always been to look at them. It has never been to
23 take them away.
24 THE COURT: You may look at them since she has no
1 MR. ROSEN: Is somebody going to hand them to me, Your
3 THE COURT: And obviously if he gets to look at them
4 Mr. Zlotoff does, too.
5 Go off the record, please, for a minute.
6 (Off the record from 2:54 p.m. to 3:13 p.m.)
7 THE CLERK: Please rise.
8 THE COURT: Thank you, ladies and gentlemen. Please
9 be seated.
10 MR. ROSEN: Your Honor, during the - I'm sorry. Are
11 we on the record?
12 THE COURT: Yes.
13 MR. ROSEN: Your Honor, during the recess, at which I
14 was supposed to look at the witness' notes and then pass them to
15 Mr. Zlotoff, after Your Honor left the courtroom the witness
16 came down off the witness stand, approached me, standing closer
17 to me than I was ever to her, and said to me and in a very
18 offensive manner that I may not show these notes to Ms. Kobrin.
19 Ms. Kobrin's my co-counsel. On - at that point I just
20 didn't even finish reading them. I gave them to Mr. Zlotoff. I
21 will not accept an exhibit which is - which has restrictions on
22 it, whether it's put on by the witness - or a document - I
23 shouldn't say "exhibit," because it's not marked as an exhibit.
24 I will not accept a document that - whether it's from the
25 witness or whether it's from the Court or whether it's from Mr.
1 Zlotoff with any such restriction that I cannot show it to my
2 co-counsel who is sitting at table next to me.
3 So I have not completed reading it and I handed it to
4 Mr. Zlotoff.
5 MR. ZLOTOFF: That's fine. Debtor - I mean not debtor
6 - Ms. Lucas rescinds her - her statement that she would permit
7 counsel to look at them. If - her decision to allow inspection
8 was merely to Mr. Rosen. If he wants to show them to others,
9 then she rescinds her - her statement granting them access to
10 the document.
11 And the objection is simply that it's not - it's not
12 relevant. It's not a part of anything. It's not anything that
13 she wrote beforehand, that she's relying on, and I think it's
14 just utterly irrelevant, and so I would object to him seeing it.
15 MR. ROSEN: I must note for the record my amazement
16 and disheartened reaction to the fact that Mr. Zlotoff, who does
17 not represent this witness, she is not his client, has taken it
18 upon himself to make objections on her behalf. This has nothing
19 to do with the debtor. It has nothing to do with from the
20 debtor's perspective any questions that are being asked of a
21 witness on the stand.
22 That last rep- - that last statement by Mr. Zlotoff is
23 a statement made by an attorney who represents a client. He
24 doesn't represent her. And while I fully recognize Mr.
25 Zlotoff's right to make objections on behalf of his client, his
1 only client the debtor, he does not have the right to make
2 objections or to rescind or do anything else on behalf of a
3 witness who he does not represent.
4 I will also note that as a result of Mr. Zlotoff's
5 statement, assuming that he has accurately reflected Ms. Lucas'
6 desires, I will also note that we are at a disadvantage. Mr.
7 Zlotoff has seen the document; we have not. And if that's what
8 the circumstance that is going to exist, I just want the record
9 to reflect that. And I will continue on.
10 THE WITNESS: Your Honor?
11 THE COURT: Yes.
12 THE WITNESS: May I state why it was that I did what I
14 THE COURT: Sure.
15 MR. ROSEN: Your Honor, -
16 THE COURT: Yes, she can. She's going - I'm going to
17 allow her to state whatever reason she wants to state.
18 THE WITNESS: I have not been able to insist that my
19 attorney attend with me because at this point I cannot afford to
20 pay him, so I'm going to have to state my own reason.
21 When I saw Mr. Rosen pass the document to Ms. Kobrin,
22 I told him that I did not wish him to show it to a staffer of
23 the office of special affairs of the Church of Scientology. And
24 that is still my position.
25 I believe that it is in violation of Your Honor's
1 protective order that keeps our private affairs from being shown
2 to members of the Church of Scientology. And I particularly
3 object to its being shown to staffers of the office of special
4 affairs, which is the terrorist wing of the Church of
5 Scientology and has persecuted us for five years.
6 MR. ROSEN: Your Honor, I move to strike that. That
7 is outrageous. First of all, Ms. Kobrin is not a, quote,
8 staffer of the office of special affairs. She is an attorney in
9 practice in the firm of Moxon and Kobrin. That's number one.
10 Number two, with all due respect how dare this witness
11 make al- - be allowed to make statements from the witness stand
12 that my client is a terrorist organization. There is only one -
13 in the entire case before Your Honor there is only one convicted
14 terrorist, and that's the defendant - excuse me - the debtor.
15 I move to strike and physically expunge from the
16 record that - the last statement by - that Your Honor allowed
17 this witness to make. This is an insult.
18 MR. ZLOTOFF: Your Honor, Mr. Rosen brought this on
19 himself, because I - I tried to make it easy for him by - by -
20 by putting in legalese what - what the - Ms. Lucas' objection to
21 the viewing of the document was. But that was objected to, and
22 so she quite rightly stated in her own words her reasons for not
23 wanting to show it to Mr. Rosen and the rest of the staff.
24 I think it's apr- - completely appropriate and in
1 MR. ROSEN: I move to strike it as an outrageous
2 thing. I didn't ask this witness for an explanation and I don't
3 really care what her explanation is.
4 The point is not what her motivation is. The point is
5 I wanted to place on the record the fact that because I could
6 not show it to my co-counsel, I refused to continue reading the
8 I ask that it be stricken and physically expunged,
9 Your Honor.
10 THE COURT: Yeah. I'll carry the objection with the
12 The only concern I have is for the purposes of
13 completing the record whether I should give you Ms. Lucas back
14 your notes or whether I should keep them as part of the record,
15 because if on - if it comes to pass that I should have let every
16 - I'm basically doing what you asked me to do. I don't have any
17 law that would require me to give them to you, given to me. And
18 so I'm not going to give them to anybody that you don't want me
19 to give them to at this point.
20 If - but I think I should keep them for purposes of
21 the record so that if, for example, there were an appeal and the
22 appeal says Mr. Rosen should be able to see them, Ms. Kobrin
23 should be able to see them, then they're preserved and Mr.
24 Zlotoff and Mr. Rosen can go on with their lives with this
25 record complete.
1 The only option is just give you back your notes and
2 have you take them home.
3 THE WITNESS: I don't have any problem with Your Honor
4 keeping them. I would want to either give you a copy or to have
5 them back because I need them.
6 I would ask that under the circumstance that you keep
7 them that you place them under seal unless -
8 THE COURT: Well, I could place them under seal but it
9 would be the understanding that if Mr. Rosen convinced me with
10 proper authority that he and Ms. Kobrin had a right to them,
11 then I would give them to Mr. Rosen and Ms. Kobrin.
12 THE WITNESS: I - I understand that. I was also
13 appealing to Your Honor to consider the protective order under
14 these circumstances.
15 THE COURT: Yeah. But, see, Mr. Zlotoff is the only
16 lawyer in the case and he is representing Mr. Henson. And the
17 protective order only protects Mr. Henson. And essentially, as
18 I recall, and - as I recall, so Mr. Zlotoff waived that for the
19 purpose of the trial, giving Ms. - Ms. Kobrin the right to see
21 Is that correct?
22 MR. ZLOTOFF: Your Honor, that's correct as to Mr.
23 Henson, but I - I think it may be the case that there is a
24 separate protective order in favor of Ms. Lucas.
25 THE COURT: I don't know that one way or the other.
1 MR. ROSEN: Neither do I.
2 THE COURT: I don't know whether that is -
3 MR. ROSEN: The first -
4 THE COURT: So I better put this - I'll put this -
5 unless you'll allow me just to give it back to her.
6 MR. ROSEN: No. I think what Your Honor has suggested
7 is correct. If you want to make a photostat during a break and
8 give it - give it back, the original, and keep the photostat and
9 put it in a sealed envelope filed under seal not to be opened by
10 anyone except on Your Honor's further order or further order of
11 the Court, that's perfectly okay with me.
12 THE COURT: That's fine.
13 MR. ROSEN: We can litigate this issue.
14 THE COURT: That's what I'll do.
15 And you're making a representation to me that Ms.
16 Kobrin is only a private practitioner and has no official
17 capacity - she's not an employee in any way of the Church of
19 MR. ROSEN: There's no such animal as the church -
20 THE COURT: I'm sorry. The RTC.
21 MR. ROSEN: Correct. She is not an employee of RTC.
22 THE COURT: Or any related organization?
23 MR. ROSEN: There is no related organization. Let me
24 make this clear.
25 THE COURT: Making it - you're making a representation
1 to me that there is no related organization?
2 MR. ROSEN: Right. RTC is a California, not-for-
3 profit religious corporation. It has no parent corporation, no
4 subsidiaries, and no affiliated corporations.
5 THE COURT: Okay.
6 MR. ROSEN: It is a stand-alone organization.
7 THE COURT: All I'm trying to establish is that Ms.
8 Kobrin is strictly a lawyer in private practice and has no
9 official capacity.
10 MS. KOBRIN: Your Honor, my paychecks come from Moxon
11 and Kobrin. That is who I work for. I am a partner of that law
12 firm. That's it.
13 THE COURT: And that law firm does work for numerous
14 clients other than the RTC?
15 MS. KOBRIN: Yes. Yes.
16 THE COURT: Okay. we'll put the document under seal.
17 Mark it for identification and put it under seal. And as a -
18 yeah, just mark it. I guess it's an exhibit.
19 THE CLERK: Under seal.
20 MR. ROSEN: May I suggest we mark it as Court's
21 Exhibit 1? Since it's -
22 THE COURT: It's not my exhibit.
23 MR. ROSEN: Well, but Your Honor is directing it be
24 put - be marked and put under seal, so it would be appropriate
25 to be marked as a Court exhibit rather than a party exhibit.
1 THE COURT: Well, you're the one that wants access to
2 it, so mark it as Mr. Rosen's side.
3 MR. ROSEN: Okay.
4 THE COURT: That'll be fine. He's the one that wants
5 access to it. So just mark it as his exhibit. Put it under
6 seal and - although he's never seen it, so that's bizarre too.
7 MR. ROSEN: Yes, it is.
8 THE COURT: Mark - mark it as a Court exhibit.
9 MR. ROSEN: That's what I thought.
10 THE COURT: I don't know what a Court exhibit is in
11 this context, but just mark it as a Court exhibit. Put it under
12 seal and say nobody gets access to it absent further order of
13 the Court.
14 THE CLERK: I'm making a photocopy of it and returning
15 the original to -
16 THE COURT: Do you want - do you care if you get the
17 original or a photocopy?
18 THE WITNESS: I have trouble reading my own
19 handwriting as it is. I'd appreciate the original.
20 THE COURT: That's fine.
21 MR. ROSEN: Okay. Ms. -
22 THE CLERK: A future note -
23 THE COURT: Well, she's not going to, I assume - are
24 you going to continue to make notes?
25 THE WITNESS: Yes, if I may.
1 THE COURT: It's going to create this same problem,
2 you understand, and they may go to everybody, so as long as you
3 understand that they may ultimately - I may ultimately rule that
4 they go to everybody. So as long as you take notes without
5 understanding, that's fine.
6 THE WITNESS: All right.
7 BY MR. ROSEN:
8 Q. Ms. Lucas, before the break I was on a subject and I wanted
9 to stick with it for a moment. And you can answer this question
10 yes or no, ma'am.
11 You testified yesterday that as of March of 1998 the
12 entire value of the contents of the home, including the bed, the
13 bed - the mattress and box spring were about $500? Yes or no.
14 Was that your testimony yesterday?
15 A. That's what I remember.
16 Q. Okay. Is your testimony any different today? Do you have a
17 different memory today, ma'am?
18 A. All I'm doing here is making guesses. I could make another
20 MR. ROSEN: Your Honor, - Your Honor, I'll ask that
21 the witness be directed to answer.
22 BY MR. ROSEN:
23 Q. Yes or no, do you have a different estimate today?
24 THE COURT: You're not required to guess. If you
25 don't want to guess - if the only thing you could do is guess,
1 you're not required to do that. You can answer his question.
2 THE WITNESS: I would only be guessing at another
4 BY MR. ROSEN:
5 Q. Do you have a different - do you have any reason to - to
6 recant your testimony of yesterday on this subject?
7 A. I don't see how I can recant a guess.
8 Q. Okay. Now, Ms. Henson, let me understand - excuse me. Ms.
9 Lucas, I apologize.
10 Yesterday you also testified that some people lifted
11 the safe and it weighed 600 pounds. Were these people who were
12 involved in moving the - the contents of the home?
13 A. No.
14 Q. Did you have to pay - you told us about what you paid the
15 company to haul this U-Pack up to Ontario Province. Did you pay
16 anybody to pack the U-Haul trailer?
17 A. On the last -
18 Q. U-Pack trailer. Sorry.
19 A. On the last day I hired the minimum number of movers for the
20 minimum amount of time, because the friends we had help us had
21 made a mess of stacking things, and things were being broken.
22 So, yes, I paid two movers for three hours to help me -
23 MR. ROSEN: Move to strike everything except "yes,
24 paid two movers" as not responsive to the question.
25 And I would ask Your Honor, this witness has been
1 doing it all day. If she can - if Your Honor would just
2 instruct her to answer the question which is asked of her and
3 not make speeches, we might get out of here by Friday. This is
4 just - this is just wasting time.
5 THE COURT: Essentially when he asks you a question
6 you don't have to give an explanation. You just answer the
7 question. And if it can be answered yes or no, you answer it
8 yes or no, if you can.
9 If you can't answer it yes or no, you can say, 'I
10 can't answer it yes or no,' and then stop. And then he can
11 decide if he wants an explanation or not.
12 THE WITNESS: Yes, Your Honor.
13 BY MR. ROSEN:
14 Q. How much did you pay the movers to pack whatever it is, the
15 U-Pack - the U-Pack?
16 A. I believe it was $300.
17 Q. Now let me see if I understand something then. You paid
18 starting in October - starting in June about $70 a month to a
19 storage facility in San Francisco. And starting in October you
20 paid, I believe you said, $170 a month for the storage including
21 - plus the insurance. And that continued until September. And
22 my math may not be a hundred percent accurate, but my math on
23 that adds up, ma'am, to $2,000.
24 And then you paid $300 for the people to load the
25 truck and a total of $2100 to have this truck deliver the goods
1 to Ontario. That's $2400.
2 So is it correct that the total you have spent to move
3 the contents of your house, all of which in total were less than
4 $500, is it correct that you have spent approximately $4400 to
5 move them to Canada?
6 A. I - I haven't done the math, but it's quite obvious that I
7 spent much more than they were worth.
8 Q. And can you tell us why you would - let me take as an
9 example the furniture, which was - you testified was used and
10 some stuff that you built or from a kit or whatever with your
11 husband cost more than that - what it was worth to move it to
12 Canada, didn't it?
13 MR. ZLOTOFF: Objection. Objection. Ambiguous
14 question as to value.
15 THE COURT: I think it's ambiguous to me, too. And I
16 understand that she's not his client, but if you're asking if
17 she went out and had to replace it, that's different. If you're
18 asking her how much it cost, that's different. What are you
19 asking her, more than it's worth -
20 BY MR. ROSEN:
21 Q. Garage - can you explain to us why you paid the movers more
22 than the garage-sale value of your furniture, to move that
23 furniture to Canada?
24 A. Most of what was moved to Canada was not furniture. There
25 were very few items of furniture which we had left. There was
1 the bed. There was a chest of drawers which I only included for
2 structural value so that boxes could go on top of it and things
3 could go inside the drawers.
4 There was a massage table. There was a tool chest.
5 Most of what was moved were Scientology litigation papers, which
6 of course we have to have for the continuing litigation,
7 memorabilia, personal items, clothing, silverware, and many
8 archival items because both of us are the repositories of the
9 archives of both our families.
10 MR. ROSEN: Move to strike. The question was what did
11 you pay to move the furniture.
12 THE COURT: Overruled.
13 MR. ROSEN: Your Honor, that's not responsive to "What
14 did you pay to move the furniture."
15 THE COURT: Overruled.
16 BY MR. ROSEN:
17 Q. Did you move the safe?
18 A. No.
19 Q. Where's the safe?
20 A. I don't know. I advertised it on craigslist, and six
21 fireman came and picked it up and took it away.
22 Q. Did you move the - Mr. Henson's guns?
23 A. No.
24 Q. What happened to them?
25 A. They went to relatives.
1 Q. Did you move the 3- or 400 pounds of copper?
2 A. No.
3 Q. In the backyard?
4 A. No.
5 Q. Why not?
6 A. I think someone else took that when I offered it to friends.
7 Q. Did you sell it?
8 A. No.
9 Q. You gave away 300 to 400 pounds of copper?
10 A. I don't even remember if it was still there.
11 Q. You know your husband has testified that there were 3- to
12 400 pounds of copper in the backyard, right?
13 A. I remember that he said something to me about copper; I
14 don't know what he testified and I don't know how much there
16 Q. Were you able to observe copper in the backyard of your
18 A. There were boxes. I don't know what was in all of the
20 Q. Were you able to observe that there was copper in the
21 backyard of your home?
22 A. No.
23 Q. This is - is this the first time you're hearing this, that
24 there was copper in the backyard of your home stored by your
1 A. I don't remember what there was out there. There was also a
2 washer and dryer in the backyard of my home. There were all
3 kinds of bits and pieces of electronic, stuff that I couldn't
4 even identify and that I asked friends to come over and please
5 dispose of.
6 MR. ROSEN: Move to strike. The question is was she
7 aware of - is this the first time she ever heard that there was
8 copper in the backyard.
9 THE COURT: I move to strike everything except "I
10 don't know what was back there" in her explanation of why she
11 didn't know what was back there.
12 MR. ROSEN: Thank you, Your Honor.
13 BY MR. ROSEN:
14 Q. Okay. Let's - now I assume that in connection with this
15 loading this stuff onto this truck that's in Ontario, it is your
16 intention to move to Canada to be with your husband; is that
18 A. If I can.
19 Q. Is there some thing preventing you from moving?
20 A. Immigration laws.
21 Q. The immigration laws of Canada?
22 A. Yes.
23 Q. So you've made some application?
24 A. No.
25 Q. You've consulted a Canadian immigration attorney?
1 MR. ZLOTOFF: Objection, relevance.
2 THE WITNESS: No.
3 THE COURT: Sustained.
4 BY MR. ROSEN:
5 Q. Ms. Hen- - Ms. Lucas, you - it is your desire to sell your
6 house, right?
7 A. Yes.
8 Q. And of the - assuming that you are entitled to any of the
9 proceeds, you as opposed to your husband, is it your intention
10 to then take that money to Canada?
11 MR. ZLOTOFF: Objection, relevance.
13 THE COURT: Let's - how do we deal with this now,
14 gentlemen? You're now serving to object to her questions. Do
15 you have a right to do that? To his questions of her. I guess
16 it's in your case. So -
17 MR. ZLOTOFF: Your Honor, -
18 THE COURT: It's a little confusing.
19 MR. ZLOTOFF: Well, don't I have a right to make sure
20 that a trial in my - in my case -
21 THE COURT: That he only puts - in your case he only
22 puts in relevant information -
23 MR. ZLOTOFF: That he only conduct - that he only puts
24 forth relevant evidence? I mean -
25 THE COURT: I guess so. Okay.
1 MR. ZLOTOFF: - do we want to get out of here at some
2 point, don't we?
3 THE COURT: Okay. Sustained.
4 MR. ROSEN: Your Honor, may I be heard on the
6 THE COURT: Sure.
7 MR. ROSEN: There is going to be an issue, our
8 position is that - that Ms. Lucas may very well not be entitled
9 to the share which is proposed that she owns of the house. That
10 I believe is going to be an issue before Your Honor in a couple
11 of different ways. And one of them may very well be the issue
12 of plan confirmation.
13 This also goes to an issue of bad faith on my motion.
14 And if I'm allowed the latitude of developing that, I think I
15 will be able to demonstrate why that is. I'm not going to say -
16 THE COURT: I don't know what - I don't understand
17 that at all, so I don't know whether I'm giving you latitude or
18 not because I don't understand what you're saying.
19 MR. ROSEN: I'll say it again. I don't believe - I
20 believe there is a grounds for a determination that Ms. Henson -
21 that Ms. Lucas is not entitled to any part of the proceeds of
22 the house that is being proposed to be sold. And I - with some
23 latitude, I believe I will be able to develop that on a factual
25 THE COURT: But that's not before me today.
1 MR. ROSEN: Yes, it is. It's bad faith.
2 THE COURT: No, it has nothing to do with bad faith.
3 I don't understand why it has to do with - I don't understand
4 what that has to do with a plan.
5 MR. ROSEN: Well, - no, it has to do with my motion,
6 but, you know what, Your Honor, if you don't see it, rather than
7 waste -
8 THE COURT: I don't see it.
9 MR. ROSEN: Okay. I'll approach it another way.
10 BY MR. ROSEN:
11 Q. Ms. Lucas, on the examination of you yesterday by Mr.
12 Zlotoff, he showed you the deed to your house. Remember that?
13 A. Yes.
14 Q. And he asked you a series of questions, including whether or
15 not you're an owner, right?
16 A. Yes.
17 Q. And that deed is to a house - that deed is in joint name,
18 you and Mr. Henson, right?
19 A. It says joint tenancy.
20 Q. Yes. That deed - that house was bought when, Ms. Lucas?
21 A. In 1996.
22 Q. You want to take a look at the deed, the date of the deed
23 and see if that helps refresh your memory?
24 A. What exhibit is it?
25 MR. ROSEN: Stan, it's your exhibit. Can you help us
2 MR. ZLOTOFF: It's Exhibit F.
3 THE COURT: Before we get into this, any of this, Ms.
4 Lucas, if he's going to challenge here in this context your
5 right to a share of the joint tenancy of this home, I - I'm very
6 concerned that you may prefer to hire a lawyer to help you.
7 Now that's a lot different than whether your husband's
8 Chapter 13 case gets dismissed or converted, or whether the plan
9 gets confirmed. That is issue is not, as far as I knew until a
10 minute ago, on the table.
11 THE WITNESS: I - I agree, Your Honor. I do have a an
12 attorney. I tried to reach him, but I haven't been insistent.
13 And I guess I will have to be insistent and he will have to
14 assist me and I will have to find a way to pay him.
15 THE COURT: All right. So we're going to have to -
16 anything about this should be for another day.
17 MR. ROSEN: Your -
18 THE COURT: I'm going to give her a chance to see a
20 MR. ROSEN: Your Honor, I objected to these questions
21 on this very deed yesterday and Your Honor overruled my
22 objections and allowed on the examination of Mr. Zlotoff,
23 allowed this witness to answer questions.
24 THE COURT: I'm going to give you a chance to cross.
25 It just won't be between now and 4:15, which is 35 minutes from
2 MR. ROSEN: May I ask a couple of questions on this,
3 just to -
4 THE COURT: No, none.
5 BY MR. ROSEN:
6 Q. Ms. Lucas, when was it that the lawsuit was filed against
7 your husband?
8 A. I don't know the date.
9 THE COURT: Which lawsuit? I don't know what you're
10 talking about.
11 MR. ROSEN: The copyright infringement case.
12 THE COURT: Oh, okay.
13 BY MR. ROSEN:
14 Q. Can you tell us whether it was before or after July 8th,
16 A. No, I can't.
17 Q. Is there something that would help refresh your
18 recollection, ma'am?
19 A. I don't know that I ever saw the papers at that point. I
20 wasn't paying attention until 1997.
21 Q. Did you know at - at the time, at about the time that the
22 lawsuit was commenced against your husband, a copyright case,
23 that your husband had been sued?
24 THE COURT: I'm going to instruct you not to answer
25 this because I have a feeling that this may relate to this same
2 Does it? Does it relate to her ownership in the house
3 in any way?
4 MR. ROSEN: No. No. No, it relates to - it may
5 tangentially refer or relate to it, but -
6 THE COURT: Then - then I don't want you -
7 MR. ROSEN: - that - no, wait a minute. That's not
8 what - the reason I'm asking.
9 THE COURT: I don't care why you're asking. If it
10 tangentially relates, I don't want you to ask anything that
11 relates to the sale of this - to the joint tenancy until she's
12 talked to a lawyer, if she chooses to do that.
13 BY MR. ROSEN:
14 Q. Ms. Lucas, isn't it a fact that in your relationship with
15 your husband you did not exchange information as perhaps other
16 husbands and wives do?
17 A. We exchanged information as husband and wives do until the
18 point when it became clear that we might be asked to divulge
19 information that would be detrimental to our friends, our
20 neighbors, our relatives, our employers, our fellow employees,
21 and observes.
22 MR. ROSEN: Move to strike it. This is another
24 THE COURT: Overruled.
25 BY MR. ROSEN:
1 Q. Ms. - Ms. Lucas, isn't it a fact that in your relationship
2 with Mr. Henson he did not tell you when he was sued for
3 copyright infringement?
4 THE COURT: Does this relate again - I'm telling you,
5 I'm instructing you not to ask anything that you may use in the
6 context of the argument about joint tenancy. If this question
7 is something that may tangentially relate, you're instructed not
8 to ask it.
9 MR. ROSEN: Can we excuse the witness so I can put on
10 the record what my - the reason for my asking the question is?
11 THE COURT: If you'd like to do that, you can. But
12 you can go to another line of questioning that has nothing to do
13 with -
14 MR. ROSEN: No. I'm not going to go to another -
15 Judge, I'm not going to another line of questioning, with all
16 due respect, without having this record reflect why I'm asking
17 this question.
18 THE COURT: I don't mind.
19 The witness is excused for a few minutes.
20 We'll get you outside. You can - anything that you
21 have by way of notes, you could give to Mr. Zlotoff - no, don't
22 give it to Mr. Zlotoff. Give it to Ms. Bracegirdle.
23 (Witness excused.)
24 THE COURT: No, you're asked to leave the courtroom
25 just for a moment.
1 If you want to use the time to call a lawyer it might
2 be a good time.
3 MR. ROSEN: Your Honor, the - virtually the entire
4 examination of this witness by Mr. Zlotoff yesterday was
5 premised upon her knowledge of Mr. Henson's activities. She
6 testified to her knowledge over my repeated objections,
7 testified to her knowledge of Mr. Henson's doing this, Mr.
8 Henson doing that, of expenses that were incurred by Mr. Henson.
9 I objected repeatedly. I don't think I - I can't
10 remember a trial I've rejected this - this many times, to tell
11 you the truth. But I rejected repeatedly that Mr. Zlotoff was
12 trying to get out of this witness the testimony which if it came
13 at all it would come out of the debtor. And continually I - I
14 objected on the grounds, among other things, that not only was
15 it improper but that this witness had no basis to know.
16 And I even said to you on the record, and I believe
17 you sustained my objection on this one, that these people have a
18 unique relationship. They don't talk to each other. And I even
19 - if memory serves, I even said to you, "Your Honor, the
20 testimony of this witness is she didn't even" - "she and her
21 husband didn't even tell each other where they worked." And
22 this goes back before 1998. And if I recall correctly, Your
23 Honor sustained my objection on that one.
24 I am trying to establish that - and this is proper
25 cross-examination. You have allowed in over my objections
1 testimony from this witness as to things that are in the purview
2 or knowledge of Mr. Henson and you have said on the record,
3 Judge, at least twice, 'Of course she can answer. They're
4 husband and wife,' because you are assuming that a
5 husband-and-wife relationship of the kind that perhaps Your
6 Honor has would involve an exchange of information.
7 I am embarking upon a cross-examination to show that
8 they don't have that. I'm going to show, number one, he didn't
9 even tell her when he was sued. Number two, when it came a
10 point in time that he did tell her, she told him, 'I don't want
11 to know anything about this. This is your problem. Don't
12 bother me.'
13 She's going - I'm going to elicit from her the fact
14 that she found out from the internet that he got into a street
15 brawl and attacked a Scientologist, or whichever way it is. Of
16 course Mr. Henson's view is the Scientologist attacked him;
17 that's not the issue. He got into a street brawl and got beat
18 up. She didn't even know about it until she read it on the
20 This is where my question is going.
21 THE COURT: But what does that have to do with a joint
23 MR. ROSEN: It has to do -
24 THE COURT: If it has nothing to do with the joint
25 tenancy, then you are within my admonition.
1 MR. ROSEN: No.
2 THE COURT: If may be something you're going to use
3 for the joint tenancy, then - then there's a problem.
4 MR. ROSEN: There is a problem, and let me tell you
5 what the problem is.
6 I can imagine that on a trial at which the issue is
7 joint tenancy and whether or not this deed was taken in a
8 fraudulent manner to - to - to defraud creditors, one of whom,
9 RTC already had filed a complaint against Mr. Henson. And I -
10 I'm not offering it for that reason here. But I am entitled to
11 pursue on cross-examination in this proceeding, because of what
12 you allowed this witness to testify to on direct examination, to
13 elicit from her that there is no husband-wife relationship in
14 the sense that Your Honor understands it and made your comments.
15 And this is part of it.
16 Now is it conceivable that in answer to a question
17 like, 'Mr. Henson never told me about the' - 'about being sued
18 by RTC,' is it conceivable that they might be evidence in a
19 proceeding to set aside a joint tenancy? Of course it is. But
20 that's not the reason I'm offering it.
21 And I can't deal with Your Honor's admonition that
22 somehow, some way this might relate to that. I don't know what
23 is relevant on a joint tenancy setting-aside. And, most
24 importantly, Judge, I don't know what forum it's in, because
25 what's relevant may be different than this court than it is in
1 the state court in California.
2 All I know is I'm asking a question to impeach this
3 witness and impeach this testimony, as she sat here for several
4 hours yesterday testifying to things she knows about, her
5 husband's activities, about what he did. Your Honor allowed
6 over my objections these questions and you allowed this
7 testimony in.
8 THE COURT: Look, if we - if you want to tell her, and
9 you already have told her so there's no harm, that one of the
10 issues that may be before a court is whether or not she was a
11 valid joint tenant and one of the issues relating to that is
12 what kind of marriage they have, I don't know whether that's a
13 relevant issue to that issue in that way. But if that's going
14 to become an issue, then I'd like to tell her that and tell her
15 to go get a lawyer and excuse her to go get a lawyer.
16 MR. ROSEN: Your Honor is looking at me. Are you
17 asking for my consent? The answer is I don't consent.
18 THE COURT: No. I'm saying that that's - if that's,
19 in fact, what you plan to do, then I think we should give her a
20 little break to hire a lawyer if she wants to.
21 MR. ROSEN: I'm sorry. This testimony was elicited by
22 Mr. Zlotoff on direct. I have a right to show that this
23 testimony is not truthful, that she does not know the affairs of
24 her husband -
25 THE COURT: I'm not saying you don't have the right.
1 I'm not saying that you don't have the right. I didn't say
3 What do you think?
4 MR. ZLOTOFF: She - as I recall initially, Your Honor
5 was - did sustain objections to her being able to testify. And
6 then later as - as her testimony developed, it - my recollection
7 is that it turned out that she did, in fact, view most of the
8 receipts, did handle most of the moneykeeping, did pay most of
9 the bills, did see the receipts, did prepare the tax return.
10 And so for that - to that extent I think she testified, and that
11 was it.
12 THE COURT: I'm not asking you that question, Mr.
14 MR. ZLOTOFF: Yeah.
15 THE COURT: I'm asking you do I give her a chance
16 before Mr. Rosen starts to question her about the - her marriage
17 because he wants to use that, he says, to establish she's not a
18 valid joint tenant, a chance to go get a lawyer.
19 MR. ZLOTOFF: I don't have an opinion. There's
20 nothing that I can imagine him asking that would have any
21 bearing on whether she's a joint tenant or not. So I don't -
22 and she's not my client, so I don't - I don't take a position -
23 THE COURT: All right. So I'm going to tell you her
24 what the issue is and then give her the option, find out what
25 she wants. But I'm going to tell her the issue is that joint
1 tenancy, and then that may be relevant to this. And some of the
2 questions may or may not be relevant. And if she wants to talk
3 to somebody, then she should do that as soon as possible.
4 MR. ROSEN: That's okay. And I can fill the rest of
5 the afternoon by asking her questions which do not, but I want
6 this record to be clear. Your Honor cannot put on me by way of
7 an admonition -
8 THE COURT: No. I wasn't. It was only for 15
10 MR. ROSEN: - a direction not to ask a question - not
11 to ask a question where the answer might conceivably be relevant
12 under a law which has not been determined in a court which has
13 not been determined by a judge which has not been determined.
14 THE COURT: That's reasonable.
15 Call her back, please.
16 But you can go to areas which you think aren't
17 related. You can do that.
18 MR. ROSEN: Is that a question, Judge?
19 THE COURT: No, that's a statement.
20 She'll be right in. Go off the record - wait a
21 second. We're now back on the record.
22 Go ahead.
23 MR. ROSEN: We have not been provided by Mr. Zlotoff
24 with anything by way of brief or other document or otherwise
25 respecting the relevance objections that he's posed. I am in a
1 position where I don't know what to do, because I have never
2 rested without knowing what the rulings are in evidence -
3 THE COURT: I understand.
4 When are we going to get your -
5 MR. ROSEN: And - excuse me.
6 THE COURT: Okay.
7 MR. ROSEN: May I be allowed to finish my statement?
8 THE COURT: Sure.
9 MR. ROSEN: I did, however, go back and review the
10 transcript of the pretrial conference in July, at which Your
11 Honor was very specific.
12 THE COURT: Let's - let's finish with the witness now
13 and we'll come back to this.
14 MR. ROSEN: Okay.
15 THE COURT: Step forward, Ms. Lucas, please.
16 (The witness retakes the stand.)
17 THE COURT: Ms. Lucas, here's the situation. Mr.
18 Rosen has stated his intent to try to prove that you are not a
19 valid joint tenant. Some of the questions he may ask you at
20 trial here may relate to that issue. Therefore you may want to
21 consider hiring an attorney to represent you at this trial.
22 Now if you're going to do that you're going to have to
23 do that very promptly, because it's very hard - well, I don't
24 need to say anything more, so I strike, well, "because it's very
1 It's really up to you. You come here unrepresented.
2 And you should just be aware that this issue is out there. And
3 answers here may be relevant to that issue. I'm not saying they
4 are or aren't, but they may - Mr. Rosen has brought this to my
6 MR. ROSEN: Your Honor, I will also say for the record
7 and for Ms. Lucas' benefit, since she was out of the room during
8 our discussion a moment ago, I will defer until tomorrow morning
9 asking her any questions which in my view may be pertinent -
10 could be pertinent to this issue with the limitations of I'm not
11 an expert in this area of law, certainly not in state court or
12 in bankruptcy court. But I will not intentionally ask her any
13 questions for the rest of the day that pertain to this issue of
14 her - the legitimacy of her joint tenancy.
15 I have plenty of other things, other questions to ask
16 her for the rest of the day. However I will ask her those
17 questions tomorrow morning, -
18 THE COURT: Well, -
19 MR. ROSEN: - because I don't think it's appropriate
20 to delay this trial. So I would like to put my position on the
21 record. I have no objection to deferring until tomorrow morning
22 these questions, as Your Honor has given her an opportunity to
23 call her counsel - remember, she already has counsel. She has
24 counsel that has appeared in this case.
25 And I will go along with Your Honor on that as far as
1 the rest of the day is concerned, but that's it.
2 THE WITNESS: I don't see how I can get - I can make
3 certain that my counsel can appear as early as tomorrow morning.
4 THE COURT: Well, you have to find out what's
5 possible, Ms. Lucas.
6 THE WITNESS: I will.
7 THE COURT: Today.
8 THE WITNESS: Yes.
9 THE COURT: Okay.
10 THE WITNESS: I've made phone calls.
11 THE COURT: All right. So we'll - we'll continue till
12 4:15, and then I will wait to find out what you say here. If
13 counsel want to wait, they can wait, and you can make your
15 MR. ROSEN: I'm reminded, I misspoke -
16 THE COURT: Please be quiet on this, unless it has to
17 do with the case. Let's - let's go into the questions.
18 MR. ROSEN: Yeah, it does. I -
19 THE COURT: Go ahead, ask a question.
20 MR. ROSEN: No. I'm reminded, I misspoke. She
21 doesn't have one counsel that has appeared. She has two.
22 THE COURT: Okay, that's fine.
23 BY MR. ROSEN:
24 Q. All right. Ms. Lucas, -
25 A. Two counsel?
1 Q. Can I -
2 THE COURT: He said you have two lawyers. Who cares
3 what he said. We don't know whether it's true or not. It
4 doesn't matter. I asked him to ask a question.
5 BY MR. ROSEN:
6 Q. Ms. Lucas, may I ask you to open to Exhibit A in the soft,
7 small binder of exhibits, and to the third page of that exhibit,
8 headed, "Schedule B, Personal Property."
9 THE COURT: Can you now the two lawyers she's had?
10 MR. ROSEN: Yeah. Ford Greene and - what's the fellow
11 from Oakland?
12 (Creditor's counsel confer off record.)
13 MR. ROSEN: Chris Kuhner.
14 THE COURT: Thank you.
15 THE WITNESS: That's not true.
16 THE COURT: Wait. Let's be quiet.
17 THE WITNESS: Excuse me, Your Honor.
18 THE COURT: That's fine.
19 BY MR. ROSEN:
20 Q. Do you have the page in front of you, ma'am?
21 A. Yes.
22 Q. Yesterday you testified in response to a question from Mr.
23 Zlotoff that the first entry in the schedule of Wells Fargo,
24 $1500, you identified that as the household account. Do you
25 recall that?
1 THE COURT: Are you in Exhibit B? Page 2 -
2 MR. ROSEN: Schedule B, per- -
3 THE COURT: Oh, Schedule B. Sorry.
4 MR. ROSEN: Schedule B, Personal Property.
5 THE COURT: I went to exhibit -
6 BY MR. ROSEN:
7 Q. Do you recall that - giving that testimony yesterday?
8 A. Yes.
9 Q. How do you know from this description that this is the
10 household account?
11 A. The Wells Fargo account is the joint account that we used
12 for household expenses.
13 Q. How do you know that your husband does not have a separate,
14 nonjoint account at Wells Fargo?
15 A. Two reasons. One is that I believe that RTC subpoenaed all
16 accounts, including any name of Henson, and in fact confiscated
17 a trustee account for his daughter Wendy Henson, so they knew
18 about another Henson account. And that if he had had another
19 account they would have confiscated it.
20 The other is that I believe my husband, and I do not
21 believe that he would have put me through what he has put me
22 through for five years, or rather what Scientology has put me
23 through in terms of poverty, in terms of working beyond my
25 MR. ROSEN: I move to strike the entire answer.
1 MR. ZLOTOFF: Your Honor, again -
2 MR. ROSEN: This is not - this is not a trial anymore.
3 This is a platform for this woman to do exactly what she did
4 yesterday: Posting to the world her description of what
5 happened in this trial. That's what - that's what this is
6 about. It's a soapbox.
7 I ask that it be stricken and that Your Honor - that
8 this witness be cautioned. She's not - she has a master's
9 degree. She knows exactly what she's doing in not being
10 responsive to questions.
11 MR. ZLOTOFF: He asked a why question, an open-ended
12 why question, Your Honor.
13 THE COURT: The objection's overruled. She told you
14 why she believes that's the household account. That's the
15 reason she believes it. Whether - whether - and that - and that
16 - and when you think about what she says, that's her
17 understanding of why she believes it.
18 BY MR. ROSEN:
19 Q. Ms. Lucas, do you have any firsthand knowledge of your own
20 personal senses, meaning sight, touch, smell, sound, that RTC
21 ever, ever seized any account?
22 A. Yes. I saw the documents from Wells Fargo.
23 Q. You're not listening to me, ma'am. From your own personal
24 knowledge. Don't tell me what you saw -
25 THE COURT: Well, you asked her sight. It's a little
1 hard, you know, she not a lawyer. You asked her sight and then
2 you yell at her, "Don't tell me what you saw."
3 MR. ROSEN: Okay.
4 THE COURT: I mean I understand the distinction
5 legally, but she's no reason - there's no reason she would
6 understand that.
7 MR. ROSEN: I don't understand what I can do, Judge,
8 when you allow this testimony in.
9 THE COURT: You asked her why and - and that's - she
10 told you why.
11 BY MR. ROSEN:
12 Q. Ms. Hens- - Ms. Lucas, is it correct, yes or no, that the,
13 quote, household account is the only bank account that was in
14 the joint name of you and your husband? Yes or no.
15 A. Yes.
16 Q. And, Ms. Lucas, you maintained a separate account in your
17 name, separate bank account, right?
18 A. Yes.
19 Q. And you maintained more than one bank account in your name,
21 A. Yes.
22 Q. And Mr. Henson maintained separate bank accounts in his
23 name, right?
24 A. No.
25 Q. Mr. Henson didn't have any bank accounts in his name?
1 A. He did not.
2 Q. At any time?
3 A. Not since we -
4 MR. ZLOTOFF: Wait, wait. Can we clarify as to a time
6 MR. ROSEN: Sure.
7 BY MR. ROSEN:
8 Q. At any time since 1996.
9 THE COURT: Well, we're talking now today in Canada?
10 Stop when?
11 MR. ROSEN: The United States.
12 THE COURT: There was a starting date and what's the
13 ending date?
14 BY MR. ROSEN:
15 Q. In 1996 to today in the United States.
16 A. He did not have another account.
17 Q. Now let me see if I understand something. When Mr. Henson
18 got paid by clients, did he deposit those funds into the savings
19 - excuse me - the household account at Wells Fargo?
20 A. Yes, either the checking or the savings.
21 Q. He didn't deposit them any place else, just the household
22 account, right?
23 A. That's correct.
24 Q. Ms. Lucas, do you recall testifying in deposition that the
25 household account was to pay household bills and at any given
1 time, whoever had the money, either you or Mr. Henson would put
2 the money into this account to pay bills?
3 A. As a partial answer, yes.
4 Q. Is that answer correct, ma'am?
5 A. It's correct, but it's not whole.
6 Q. Is it correct that either you or Mr. Henson would deposit
7 money into the household account as you - each of you had money
8 available to pay the household expenses?
9 A. Like I said, it's correct, but it's not whole. We also put
10 paychecks in there when we did not need to pay bills
12 Q. Ms. Lucas, you had separate bank accounts into which you
13 deposited your paychecks, didn't you?
14 A. Yes. But I didn't always put my paychecks into my separate
16 MR. ROSEN: Move to strike. I'm trying to stay with
17 yes, no questions.
18 THE COURT: Sustained.
19 BY MR. ROSEN:
20 Q. Now -
21 THE COURT: Reask - do you want to reask the question
22 or are you going to move on?
23 MR. ROSEN: No. I just move to strike everything
24 after "Yes."
25 THE COURT: That's not what you said.
1 MR. ROSEN: I'm sorry. Move to strike everything
2 after "Yes."
3 THE COURT: Yes.
4 THE WITNESS: Then may I rephrase the qu- - the
6 BY MR. ROSEN:
7 Q. No.
8 THE COURT: Sure. Yes, you can.
9 BY MR. ROSEN:
10 Q. There's no question before you.
11 THE COURT: No, that's wrong. I will let her complete
12 her answer.
13 MR. ROSEN: She did complete it.
14 THE COURT: No. But if she wants to complete her
15 answer, I'm going to let her - you're not in charge. I am. And
16 I will let - and you don't talk to her -
17 MR. ROSEN: I'm talking to you, Judge.
18 THE COURT: You talk only to me.
19 No. She said, "May I finish my answer," and you said,
21 MR. ROSEN: Oh, I'm sorry. I was expressing to you my
23 THE COURT: Thank you.
24 The answer is, yes, you can state. And then if he
25 wants to move, he can move, but you can state whatever your full
1 answer would be.
2 THE WITNESS: Well, Your Honor said that in cases
3 where I could not say yes or no, I could say that I cannot
4 answer it either yes or no, and that's what I wish to answer.
5 THE COURT: That's fine. Thank you.
6 BY MR. ROSEN:
7 Q. Now you had separate credit cards from Mr. Henson, right?
8 A. Yes.
9 Q. And there were credit cards that were in your name and then
10 there were in separate credit cards that were in his name?
11 A. Yes.
12 Q. Right?
13 And, in fact, ma'am, Mr. Henson's practice was that if
14 any bills came to the house that were addressed to him, you were
15 not to open to them; isn't that right?
16 A. No.
17 Q. Ma'am, isn't it true that anything that came to the house -
18 withdraw that "anything."
19 Isn't it true that you did not open -
20 THE COURT: Time period, please.
21 BY MR. ROSEN:
22 Q. Any time since 1996, isn't it true that you did not open,
23 let's say, envelopes with 1099 forms addressed to Mr. Henson?
24 A. Time period -
25 Q. Yes or no.
1 A. I cannot answer it yes or no.
2 Q. Is it because of the time reference -
3 A. Yes.
4 Q. - that you cannot?
5 Okay. Is it true at any time during 1996 to the
6 present that you did not open 1099 forms sent and addressed to
7 Mr. Henson?
8 A. It is -
9 Q. Yes or no.
10 A. Yes.
11 Q. And did that time period include 1998?
12 THE COURT: Is that all of '98?
13 MR. ROSEN: Yes, all of '98.
14 THE WITNESS: No.
15 BY MR. ROSEN:
16 Q. In 1998 were you opening 1099 forms addressed to Mr. Henson?
17 A. Yes.
18 Q. And did Mr. Henson know about this?
19 A. Yes.
20 Q. In 1997 were you opening 1099 forms addressed the Mr.
22 A. Yes.
23 Q. In 1997 and 1998 were you opening credit card bills
24 addressed to Mr. Henson?
25 A. Yes.
1 Q. Even though this - the credit card was only in his name, not
2 yours, right?
3 A. Yes.
4 Q. How many credit cards did you have that were in your name
5 that were not in joint - in other words, were not a joint
6 account with Mr. Henson, -
7 A. At that time period -
8 Q. - how many have you had?
10 A. At that time period?
11 Q. Yeah.
12 A. 1998?
13 Q. '97, '98.
14 A. Probably five.
15 Q. Now did you maintain a bank - withdraw that.
16 How many credit cards do you think Mr. Henson had
17 during that period of time in his name?
18 A. He might have had three. I remember two specifically.
19 There might have been a gas card.
20 Q. And is it your testimony, ma'am, that as a regular course in
21 1997 and 1998 you would open those credit card statements
22 addressed to Mr. Henson?
23 A. Yes.
24 Q. Okay. Ms. Lucas, is your - are your bank accounts listed
25 anywhere on this schedule?
1 A. I didn't see them.
2 Q. And Mr. Henson actually gave you money to deposit in your
3 bank accounts, didn't he?
4 MR. ZLOTOFF: Could we - excuse me. Could we have a
5 clarification as to the time period on that?
6 MR. ROSEN: Yeah. The same time period, '97, '98.
7 BY MR. ROSEN:
8 Q. He gave you money, didn't he?
9 A. I can't remember any specific instances if he's doing that.
10 The only reason I can remember that he might have done it was to
11 pay me back when I would lend him money.
12 Q. Ma'am, do you recall testifying - withdraw that.
13 Do you recall that in 1997, 1998 there were times when
14 you paid from your - from your separate account certain
15 household expenses of the two of you or for your daughter, and
16 Mr. Henson would give you the money back?
17 A. Yes. That's the - that's what I just said.
18 Q. And that money then would go either into your pocket or into
19 your bank account, right?
20 A. Yes.
21 Q. Okay. Now counsel asked you - showed you an exhibit which I
22 believe is O that shows a zero balance in the - in the Wells
23 Fargo account in the months following the filing of the
25 Is it correct, ma'am, that the reason this account
1 went to zero balance is because you and Mr. Henson decided not
2 to put any more money into it?
3 A. I don't think there was any money to put into it except what
4 I could put in.
5 Q. But you didn't put any money in, did you?
6 A. If there was a zero balance, I guess I didn't.
7 Q. Take a look at Exhibit O, ma'am. It's an exhibit offered by
8 Mr. Zlotoff. The first page of the exhibit is for the period
9 May 9th through June 8th, 1998.
10 A. Um-hum.
11 Q. Zero beginning balance, zero ending balance. See that?
12 A. Yes.
13 Q. And the next one is June 9th, '78 to - '98 to July 8th, zero
14 balance, right?
15 A. That's are savings accounts, not checking accounts.
16 Q. Was there a zero - this has nothing to do with checking?
17 A. No.
18 Q. I see. Was the - do you have the checking account records,
20 A. I have some of the records.
21 Q. Prior to March of 1998 was there a balance in this savings
22 account greater than the zero balance shown on Exhibit O?
23 A. I don't remember at what point we stopped putting money into
24 the savings account because we couldn't afford it.
25 Q. Is it your testimony that the reason that the account shows
1 a zero balance as of May 9th, 1998 is that you and Mr. Henson
2 didn't have any money to put into the account?
3 A. Yes.
4 Q. So if you had money to put in it would have gone into this
6 A. If we had had money that we could save, it would.
7 Q. I see. Now was the checking account that was the Wells
8 Fargo account that was the household account in joint name, did
9 that account have an automatic transfer feature between savings
10 and checking?
11 A. No.
12 Q. So if you wanted to transfer money from savings to checking,
13 you'd have to actually do it manually? Go to the bank and do
14 something or go to an ATM?
15 THE COURT: Aren't they different, but if - can't you
16 just - I mean some accounts you just do it by phone, you don't
17 go to the bank -
18 MR. ROSEN: Right. You have to do something.
19 THE COURT: You have to do something, but it doesn't
20 have an automatic -
21 MR. ROSEN: It's not an automatic sweep. That's my
22 question, yeah.
23 THE WITNESS: I don't believe there was anything
25 BY MR. ROSEN:
1 Q. What was the balance in this account, Exhibit O, this
2 savings account, as of February of 1998?
3 A. I don't believe there was a balance in it, but I'm not sure.
4 Q. Is it your testimony that in February of '98 - let me be
5 more specific.
6 As of February - it seems that the date closes on the
7 8th of the month. Do you see that from this exhibit?
8 A. Yes.
9 Q. As of February 8th, 1998, is it your testimony that the
10 balance in this account was zero?
11 A. It's my testimony that I don't remember specifically, but
12 that my recollection is that it was zero.
13 Q. When was the last time prior to February 8th, 1998 that this
14 account had a balance?
15 A. I don't remember.
16 Q. Okay. Now with respect to the checkbook, the checking
17 account at Wells Fargo, do you have like I do, some sort of a
18 checkbook register? You know, -
19 A. Yes.
20 Q. - where you write a check and then you make a note that - as
21 to who the check is to and how much it is?
22 A. Yes. You know I do because you got the copies at 2004
24 Q. Thank you.
25 MR. ROSEN: I move to strike; the answer is not
2 THE COURT: Sustained.
3 BY MR. ROSEN:
4 Q. Now the Court made some comments yesterday about the
5 checkbook, and I want to see if - with all due respect, if
6 they're accurate.
7 THE COURT: Yeah, but that's not a proper
9 MR. ROSEN: I'll withdraw the introduction.
10 BY MR. ROSEN:
11 Q. If you record in your checkbook correctly when you write out
12 a check and when you make a deposit then on any given day,
13 whether it's February 8th or March 10th, you can tell me what
14 the balance is in your account, can't you?
15 A. If I check it.
16 Q. Right. If you check it and if your math is correct, if you
17 subtract the amount of the check and if you correctly add the
18 amount of the deposit, any given day you can tell me what your
19 balance is in that checking account, can't you?
20 A. Yes.
21 Q. Okay. Now this entry says, and I'm on Schedule B still,
22 Personal Property, "Savings and checking accounts, Wells Fargo.
24 THE COURT: Where are we now?
25 MR. ROSEN: It was on the same schedule, Your Honor.
1 Schedule B, Personal Property.
2 THE COURT: But we were on O for a while. We've
3 jumped back -
4 MR. ROSEN: I'm sorry, Your Honor. Thank you. I
6 BY MR. ROSEN:
7 Q. Exhibit A, third page, Schedule B, Personal Property. First
9 You testified yesterday, ma'am, that you have an
10 independent recollection that this $1500 figure is correct?
11 A. It seemed to me that it was.
12 Q. It seems to you it is. What was your balance as of February
13 8th, 1998?
14 A. I thought that was the period we were talking about.
15 Q. No, ma'am. The question was as of March 10th. There was a
16 whole discussion about how can you pinpoint the balance on a
17 given day.
18 What was the balance as of February 8th, '98, ma'am?
19 MR. ZLOTOFF: Objection, best evidence rule.
21 THE COURT: Either you have a recollection or you
22 don't, frankly. I allowed you to testify over Mr. Rosen's
23 objections with questions like that, so if you - so I'll
24 overruled this one, too.
25 But to the extent that you have a recollection, fine.
1 To the extent you don't have a recollection, just say that.
2 THE WITNESS: I don't have a recollection.
3 BY MR. ROSEN:
4 Q. Ms. Lucas, do you have a recollection of what your balance
5 was on any day in the month of February of 1998, any day?
6 A. It would just have to be a general estimate.
7 Q. And I'm not asking you to guess, and the Judge told you you
8 don't have to guess. I want to know if you have a recollection,
9 not a guess of what your balance was on any day in the month of
10 February 1998, ma'am. And if you don't know, if you have to
11 guess, just say so.
12 MR. ZLOTOFF: Can I - objection, clarification. Is he
13 asking what the balance was as stated in her checkbook or as
14 reported in the bank on any given day? Because the amounts
15 could be different of course.
16 MR. ROSEN: No, they can't be.
17 MR. ZLOTOFF: Of course they can be.
18 For example, there are checks outstanding, the bank's
19 not going to have it -
20 MR. ROSEN: Okay.
21 BY MR. ROSEN:
22 Q. In the checkbook.
23 MR. ZLOTOFF: Isn't that different -
24 BY MR. ROSEN:
25 Q. What was the balance in your checkbook on any day in the
1 month of February 1998?
2 And if you don't know you don't have to guess.
3 A. Well, all I can do is make an estimate that maybe on one day
4 it was about nine hundred and something dollars.
5 Q. Which day was that?
6 A. I don't remember.
7 Q. In other words, on some unidentified day in the month of
8 February, you have a recollection it was 900 - you had a $900
9 balance, huh?
10 A. The number -
11 Q. That's it?
12 A. - sticks in my head.
13 Q. Okay. How about January of '98?
14 THE COURT: Okay. We're going to stop. It's 4:15. I
15 could have gone a little more, but I think we're going to
16 usefully use the time more appropriately to have Ms. Lucas see
17 if she can get a lawyer for tomorrow.
18 Ms. Lucas, ideally I would start tomorrow morning.
19 If I can't, then, Mr. Rosen, I want to ask you a
20 question. Is there a way for you to ask the morning questions
21 that have nothing to do, to the best of your knowledge, with
22 this joint tenancy question, and use the afternoon - and then
23 use the afternoon if we can get a lawyer here in the afternoon?
24 MR. ROSEN: I'm not sure I could fill up the morning,
25 but if your question of Your Honor is could I start in the
1 morning, -
2 THE COURT: Could you stop? I mean you'll just have -
3 you'll have a point at which you can stop and -
4 MR. ROSEN: At which point you may have to recess
6 THE COURT: Right.
7 MR. ROSEN: Is that what you're saying?
8 THE COURT: Yes.
9 MR. ROSEN: I can do it, but I would object to it.
10 THE COURT: I understand.
11 Okay. So the ideal thing would be for you to get a
12 lawyer here in the morning. And if you can't, then try to get
13 somebody here in the afternoon at about 1:15 or 1:30 - 1:15
14 would be better, even 1:00. Because if we recess early, then -
15 1:15 will be fine. 1:15.
16 Okay. And we're recessed for the moment. I'm going
17 to stay here and - what did you want to say?
18 THE WITNESS: I just wanted -
19 MR. ROSEN: I was addressing a housekeeping matter
20 when Your Honor interrupted me to - to put Ms. Lucas back on.
21 Could we address some housekeeping matters?
22 THE COURT: Is that anything that affects Ms. Lucas?
23 MR. ROSEN: No, it doesn't.
24 THE COURT: Okay. Yes, you can go make your phone
25 call now.
1 THE WITNESS: Thank you.
2 (Witness excused.)
3 MR. ROSEN: I believe when Your Honor -
4 THE COURT: We were talking about Mr. Zlotoff's brief.
5 MR. ROSEN: Yeah. I believe when Your Honor cut -
6 (Creditor's counsel confer off record.)
7 MR. ROSEN: Yes. I was saying I had reviewed the
8 pretrial conference transcript - the transcript of the final
9 pretrial conference in July. And Your Honor was very explicit
10 that with respect to any objections to exhibits, you did not
11 want to be inundated at trial with objections.
12 THE COURT: That was absolutely true.
13 MR. ROSEN: And the instruction was to file in
14 limines. Mr. Zlotoff did not do that and has now come forward
15 on Sunday per the listing in the - in the footnote 1 to our
16 brief with 20 percent of our exhibits he objects to, and many of
17 them he said on common ground, i.e., they relate to the criminal
19 And, once again, Your Honor, I am being prejudiced by
20 this failure to comply with your order. And the reason I'm
21 being prejudiced is because I have a conundrum. I have never in
22 34 years ever rested -
23 THE COURT: Yeah, you've said that several times. I
25 MR. ROSEN: And I would like rulings before I rest.
1 And if the problem is we're waiting for Mr. Zlotoff to decide
2 what he's going to do, we have got nothing from him. I raised
3 this yesterday as to whether he could give us a two-page brief
4 or something today. We got nothing.
5 And, Judge, you know, I don't want to do.
6 THE COURT: Let's talk about it.
7 MR. ROSEN: I truly do not know what one does when
8 Your Honor says to me, 'Mr. Rosen, do you rest.'
9 THE COURT: I understand. I understand, but one - one
10 possibility is to send everybody home tomorrow, have Mr. Zlotoff
11 write his brief, and reconvene the next morning with Ms. Lucas.
12 That would give her a full day to hire -
13 MR. ROSEN: I object to that -
14 THE COURT: Wait a minute. Let me finish what my
15 proposal is -
16 MR. ROSEN: Yeah.
17 THE COURT: - before you object.
18 I haven't said anything other than - I haven't
19 finished my sentence even.
20 That would be a possibility. You'd go write your
21 brief and then we'd have the brief the next morning, if that
22 were possible.
23 Another possibility would be to adjourn in the morning
24 and have Mr. Zlotoff bring his brief in in the morning.
25 But we need to get this resolved, Mr. Zlotoff. What
1 do you propose?
2 MR. ZLOTOFF: If it's up to me I would say a week from
3 this Friday.
4 THE COURT: But then what about the problem about
5 resting and then there's the problem of whether there's -
6 MR. ZLOTOFF: It's not my problem, Your Honor. I mean
7 that's - if it's up to me, it would be a week from Friday -
8 THE COURT: No, it is your problem.
9 MR. ZLOTOFF: But - but -
10 THE COURT: It is your problem.
11 MR. ZLOTOFF: You're asking me to try to accommodate
12 him; I don't want to -
13 THE COURT: No. You were supposed to have done this
14 in limine. He's right.
15 MR. ZLOTOFF: Okay.
16 THE COURT: So now - now I have to try to accommodate
17 the trial, so that he can rest and so we can go forward and
18 finish this. A week from tomorrow means what? That he doesn't
19 rest and then - and then what about -
20 MR. ZLOTOFF: Your Honor, what he did in his - he
21 wrote a 16-page brief, including - it was - essentially it was a
22 posttrial brief is what it was. Not - not limited to the
23 relevancy objections that I make.
24 THE COURT: Okay. But I don't care, I don't care
25 about anything except ruling on your exhibits at this point -
1 MR. ZLOTOFF: But I don't want to have to go through,
2 you know, 10 pages of rebuttal to utter -
3 THE COURT: You don't.
4 MR. ZLOTOFF: - utter nonsense. Well, can I do it
5 orally, Your Honor, or do you - do you require a written
7 THE COURT: I guess you can do it orally, if that's
8 what you want to do. If you want to do it orally. The - I
9 can't promise that - see, the problem for me, the reason I asked
10 for the motions in limine is that if you're talking about 50
11 exhibits that are multiple pages, it's very hard to review those
12 as you're talking.
13 So I can't promise a response immediately, but if you
14 want to do your response orally, and that will expedite things,
15 that would be fine.
16 MR. ROSEN: I suggested that yesterday, Your Honor. I
17 would - sorry. I suggested that yesterday because knowing Mr.
18 Zlotoff, as we have dealt with him over a period of about four
19 years, his briefs tend to be on the size of about two or three
20 pages anyway. And I was willing to waive that. And I believe I
21 even said on the record, I will waive any reply, our reply
23 But I am being severely prejudiced. Every day -
24 THE COURT: Okay. Wait a second. You're not being
25 prejudiced yet.
1 When will you be able to do this?
2 MR. ZLOTOFF: Your Honor, you have to just tell me.
3 I'm - I don't want to -
4 THE COURT: No. You have to help me because I have to
5 - I have to be able to rule on this, so I need - if you're going
6 to make a coherent argument - the problem is yesterday or
7 whenever we started this process, you didn't seem organized at
8 all to me. You - you were going to do it sort of on the spot
9 flipping through 258 exhibits.
10 And - and I - I saw us sitting here for five hours
11 waiting for you to get through these exhibits and for Mr. Rosen
12 wanting to talk about every one of them. I didn't see you
13 having grouped them in categories, organized them, tell me what
14 the issues were in each category, and presenting your objections
15 in a coherent way. And for that reason I said put it in
17 Now whenever you're ready to do that orally or in
18 writing I would be glad to hear it and I'd like to hear it as
19 soon as possible. That's the key for me.
20 MR. ZLOTOFF: Okay. Your Honor, honestly, it's a
21 burden. You just have to tell me when and then I just the
22 midnight oil and do it, you know. Because it's - you know, I
23 mean - you know, so that we can spend the time listening to the
24 cost of a used suit or a used pair of shoes and, you know,
25 that's more important and more significant. But whenever I have
1 to do it, I'll do it, you know.
2 I don't want to say tomorrow because that - you know,
3 that - that means I'm put out, but if you say tomorrow, I'll do
4 it tomorrow.
5 MR. ROSEN: Your Honor, let me just say my - state my
6 position on this. Every day that goes by is an enormous - of
7 this trial - is an enormous cost to my client. It's not only
8 legal fees. It's the expenses of out-of-town counsel, namely
9 me, and Ms. Kobrin, and the clients who have been sitting here
10 in the room this whole time from Los Angeles. This is an
11 enormous expense.
12 Mr. Zlotoff had an obligation to comply with your
13 order. He did not. If you want to allow him to present this,
14 he must do it orally tomorrow morning, and let me tell you what
15 my problem is.
16 I expect to finish this examination subject to whether
17 or not I have to save 20 minutes worth of questions for the
18 afternoon, if Ms. Lucas comes in with an attorney. Subject to
19 that, I'm going to finish my examination tomorrow before lunch.
20 Mr. Zlotoff has no other witnesses. I have no witnesses. Here
21 is my closing argument. I'm not submitting any posttrial brief.
22 I'm making my closing argument. It will take 45 minutes, an
23 hour. Whatever it is, it's going to be a lot less than the 20
24 hours I was allocated. Even assuming Mr. Zlotoff has the same
25 amount of time.
1 THE COURT: Well, the 20 hours when you expected Mr.
2 Henson to be here. That's what the 20 hours -
3 MR. ROSEN: Correct. Correct. Correct.
4 But my point is we are going - as far as I'm
5 concerned, we're going to close this tomorrow. He doesn't have
6 any other witnesses. I don't have any other witnesses. And the
7 rest of it is just finishing this cross, any redirect he has,
8 reserving the questions for her lawyer. And, to tell you the
9 truth, if we finish early and we have to wait for her lawyer, I
10 don't care to take - it's a bench trial, it's not a jury trial.
11 I'll take it out of order. I'll make my closing argument while
12 we're waiting for a lawyer. It doesn't make any difference to
14 THE COURT: Well, but the key is everything is geared
15 up toward so you don't have to rest until this. So here's the
16 problem and maybe the solution. For all I care, this document
17 discussion can go on over the phone with you in Los Angeles, if
18 we're only talking about the document discussion.
19 The concern is your technical objection that you don't
20 want to rest, and so I'm - that - really that's the key that I'm
21 trying to satisfy.
22 MR. ROSEN: Yes. But there - but there's more to it
23 than just that.
24 THE COURT: I don't want you to repeat everything
25 again. Please don't repeat anything.
1 MR. ROSEN: I'm not going to repeat everything. I'm
2 not going to repeat everything. I want to make it clear to you
3 and I want to make it clear in the record what this is about.
4 You heard counsel say a week from tomorrow, a week
5 from Friday. That's the return date of the motion to sell the
6 house. Our position is going to be we have - this motion goes
7 back - that you're trying now goes back to July of 2000.
8 If you agree with us on 1307, the motion to sell the
9 house is moot, because whether or not there is a dismissal or a
10 conversion to Chapter 7, the matter will be out of Your Honor's
11 hands. Our position is that this proceeding must complete and
12 Your Honor make a decision on a 1307 because it will moot that
13 argument, that entire issue.
14 I am ready - and I must leave on Thursday, by the
15 way, -
16 THE COURT: Friday we are here. It's a trial date,
17 and we're here.
18 MR. ROSEN: No. I'm saying this Thursday -
19 THE COURT: This Friday we are here. You are
20 scheduled to be here.
21 MR. ROSEN: We're here on Thursday, too.
22 THE COURT: Friday and Thursday.
23 MR. ROSEN: Yeah.
24 THE COURT: Right.
25 MR. ROSEN: I - Your Honor, I'm sorry, maybe I didn't
1 speak quickly enough. I said I am scheduled to leave on
2 Thursday. If there were some reason not to accommodate Mr.
3 Zlotoff's failure to make an in limine, that goes with the
4 territory. That's the life of a trial attorney. I would have
5 to stay - stay over. But this is going -
6 THE COURT: You don't have to stay over. That's what
7 I keep trying to tell you. You can do the argument about the
8 documents over the phone. You don't have to be here.
9 MR. ROSEN: Why can't we do them tomorrow morning?
10 THE COURT: I don't know. Can -
11 MR. ZLOTOFF: Yeah. Let's do it tomorrow morning.
12 THE COURT: Okay.
13 MR. ZLOTOFF: Can I just do it orally, Your Honor?
14 He's - what he's done in his brief is he's grouped -
15 he's got - has certain headings. And I think what I will do is
16 I will just say: Look at - turn to his heading number 2 and in
17 the margin there write, 'Debtor objects because it's free
18 speech' or, you know, and then just number 3, same thing.
19 THE COURT: Do whatever you want, Mr. Zlotoff.
20 MR. ZLOTOFF: All right. I just - let's just take it
21 care of it like that. I don't want to spend -
22 MR. ROSEN: Could we start a few minutes earlier in
23 the morning and get that done?
24 THE COURT: Yes. That would be fine -
25 MR. ROSEN: Because then, Your Honor, I think we will
1 have, with all due respect and not knowing what Mr. Zlotoff has
2 in mind, I think we can assure that we will complete tomorrow.
3 THE COURT: Okay. But I don't promise you to be able
4 to rule instantaneously, not knowing what Mr. Zlotoff said, and
5 never having seen any of these documents.
6 I have not looked at them.
7 MR. ROSEN: Your Honor, with all due respect, -
8 THE COURT: Gosh, if you'd please stop saying that.
9 MR. ROSEN: Okay. With half a respect?
10 THE COURT: No, no.
11 MR. ROSEN: Some respect?
13 MR. ROSEN: None. You tell me, Judge. What do you
15 All you have to do -
16 THE COURT: I just would eliminate the phrase.
17 MR. ROSEN: Okay. I will - I will not utter the
18 phrase again.
19 The issues, if Your Honor has had a chance to read our
20 15- or 16-page brief, Mr. Zlotoff is correct. Every exhibit is
21 lumped by the subject matter. Here is what they relate to and
22 we have argued here is what they show.
23 This argument is simplicity itself. Mr. Zlotoff is
24 going to say, 'Look at number 6, whatever it is, and this all
25 relates to the criminal conviction in Riverside County, and that
1 shouldn't go in.' And if I'm reading it correctly, -
2 MR. ZLOTOFF: Yes, that's right.
3 MR. ROSEN: - that's what we're going to have. This
4 argument's going to take 10 minutes.
5 THE COURT: That's fine. All right. I'm just - I'm
6 just telling you that I'm not necessarily going to rule at that
8 MR. ZLOTOFF: I understand.
9 THE COURT: That's fine.
10 MR. ROSEN: Okay. So can we start early and do that
11 before the witness -
12 THE COURT: Yeah. Let's find out from Ms. Lucas what
13 - when she can be here -
14 MR. ROSEN: Well, she's got to be here in the morning
15 for the examination that does not relate to the joint tenancy,
16 because I've got a - you know, -
17 THE COURT: How much time do you need her for on
18 matters that don't relate to the joint tenancy?
19 MR. ROSEN: Well, you know, I hesitate to give you an
20 estimate only because if I got answers to the questions and not
21 speeches, I can tell you that my examination would be completed
22 in an hour and a half. But at the rate we're going, with
23 speeches, and I have to repeat questions and ask Your Honor to
24 strike, this can go on forever.
25 THE COURT: Forever, that's your estimate?
1 MR. ROSEN: Forever and a day.
2 THE COURT: Forever and a day, okay. Well, with that
3 estimate then we're - everything is perfectly clear -
4 MR. ROSEN: Go onto 20 - to limit up, 20 hours.
5 Your Honor, seriously, -
6 THE COURT: Seriously -
7 MR. ROSEN: - if she answers the questions, I will be
8 done in an hour and a half.
9 THE COURT: Okay. We can go off the record.
10 (Off the record from 4:29 p.m. to 4:33 p.m.)
11 THE COURT: Ms. Lucas, if you could please get to a
13 Stan, do you want to let her have - you're not
15 MR. ZLOTOFF: Yeah.
16 THE COURT: We're just talking about a lawyer now.
17 THE WITNESS: Thank you.
18 THE COURT: What did you find out?
19 THE WITNESS: I haven't been able to reach an
20 attorney, Your Honor. I've tried two and I have a couple more I
21 will try and I will ask for some suggestions.
22 THE COURT: Okay.
23 THE WITNESS: My attorney has not called me back.
24 THE COURT: Okay. We're going to start in the morning
25 with some argument. And then Mr. Rosen's going to ask you
1 questions and he's going to endeavor not to talk to you on
2 anything that would relate to the joint tenancy issue until
3 after lunch. So we're looking for the 1:15 timeframe for you to
4 have someone here.
5 THE WITNESS: Yes, Your Honor. What time did you say
6 we would start in the morning?
7 THE COURT: Well, can - can we start at 9:30? Is that
8 okay with -
9 MR. ROSEN: Absolutely.
10 THE COURT: Is that okay with you, Mr. Zlotoff?
11 MR. ZLOTOFF: Yes. That's fine with me.
12 THE COURT: All right. So we'll start at 9:30. You
13 don't need to be here until 10:00. And then - and then - and
14 hopefully you'll have a lawyer here at 1:15.
15 THE WITNESS: Thank you, Your Honor.
16 THE COURT: Thank you.
17 Court is adjourned - oh, you had a question.
18 MR. ROSEN: Well, I didn't have a question. I have
19 two outstanding issues. One was Your Honor asked me yesterday
20 if anticipated any other - offering any other cases. And asked
21 if I did, that I would give them to you. Based on Your Honor's
22 - certain of Your Honor's rulings yesterday, on the issue of
23 judicial estoppel, I do intend to argue two Ninth Circuit
24 decisions in support of the proposition of judicial estoppel by
25 those bankruptcy schedules.
1 And I will hand a copy of each of those cases, the
2 Stroh case and the Hamilton case to Your Honor because I am
3 going to address this in -
4 THE COURT: That's fine.
5 MR. ROSEN: - my closing, since my closing is going to
6 be in my closing brief. And I will give copies to -
7 THE COURT: Give a copy to Mr. Zlotoff.
8 MR. ROSEN: - Mr. Zlotoff.
9 And on the same subject, now that I've told you, how
10 about you telling me, I asked you yesterday, you gave me the
11 Eisen case and suggested I read it. And I asked yesterday for
12 what reason. And if Your Honor has something in mind that you
13 believe that case - why that case is important, I'd like to know
14 because I'd like to address it in oral argument.
15 THE COURT: Okay.
16 MR. ROSEN: And you said you will get to that. I'm
17 sorry, this is last Friday. This wasn't yesterday -
18 THE COURT: I remember the Eisen case and I remember
19 why I said it.
20 In the initial comments, Mr. Rosen and Mr. Zlotoff
21 were talking about to me about whether or not if the case - if I
22 find the case was filed in bad faith, that Mr. Zlotoff could
23 propose another plan. And I've thought about that.
24 If the case was filed in bad faith, Mr. Zlotoff can't
25 file another plan. The case will get dismissed or converted.
1 If the plan was filed in bad faith, but the case was filed in
2 good faith. In other words, if the plan itself has problems
3 which demonstrate bad faith but the case itself does not, then
4 he could file another plan.
5 MR. ROSEN: Is that the - for Eisen -
6 THE COURT: And that's - well, -
7 MR. ROSEN: Is that the reason you gave me Eisen?
8 THE COURT: That's the clarification I wanted to make
9 on the record for both of you.
10 And Eisen is a case that may be of interest to both of
11 you, and so I gave it to you for that reason. But I wanted to
12 clarify my view of the law as such.
13 I have no other independent reason to have given you
14 Eisen other than it was a case that may be relevant and both of
15 which - and both of you may want to look at. That's all.
16 MR. ROSEN: Well, -
17 THE COURT: I don't want to hear argument now. My
18 staff needs to go because it's late.
19 MR. ROSEN: I wasn't going to hear - make any
20 argument. Why are you anticipating that, Judge?
21 THE COURT: So - because I want you to go home.
22 That's why.
23 MR. ROSEN: I want to go home. Let my people go.
24 THE COURT: You're out.
25 MR. ROSEN: They're sitting here in your courtroom.
1 Let my people go.
2 THE COURT: So stop talking.
3 Please go off the record.
4 MR. ROSEN: That want to get out of San Jose.
5 (Trial was adjourned for the day at 4:37 o'clock p.m.)
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