"Your particular affidavit is devoid of any good cause," Marcus said. "It is more in the realm of a fishing expedition. I don't understand how these emails lead to a viable defense."
Marcus added that part of his consideration was the burden placed on a third party — Beverly Hills Unified, in this case — in having to pay $10,000 to $15,000 to restore the emails and dealing with the loss of an information technology employee for a month to do the task.
"I'm supposed to look at it through the lens that they're a third party and [say], 'What does this mean to them?'" Marcus added.
Ciulla said that he interviewed Beverly Hills Unified employees and school board members who said they did not remember the emails.
Beverly Hills Unified's attorney, Stan Karas, said claims about the existence of the emails were dubious because Hubbard first claimed the correspondence was to school board members, then to other employees.
"What we have now is a completely new story," Karas said.
The judge sided with Beverly Hills, saying it was unusual that no one remembered receiving the emails.
Marcus also questioned why those who received the emails from Hubbard wouldn't be able to testify to their contents, rather than the school district going through an expensive restoration process.
"I am totally, completely unconvinced that there are emails and that everybody forgot about them," Marcus said. "I just don't find sufficient cause."
Restoring the three months' worth of emails could take up to one month's worth of full-time work, with a Beverly Hills information technology professional taking tapes to a disaster-recovery agency that would then put them into a usable format, like a CD-ROM, an expert testified Aug. 30.
Hubbard is charged with misappropriating public funds stemming from allegations that he gave former Facilities Director Karen Anne Christiansen an additional car allowance of $500 per month and about $20,000 — both of which prosecutors say was without the Beverly Hills school board's approval.
Hubbard and Christiansen have both pleaded not guilty. Other correspondence has surfaced as evidence in the case, some showing Hubbard sent emails from his work account to Christiansen that were laced with sexual innuendo. Hubbard told Daily Pilot that he did not have a relationship with her.
Hubbard was hired as the schools chief for Newport-Mesa in 2006. In January, Hubbard went on paid administrative leave so he could prepared his defense. He then came back to work at the beginning of July.
He is expected back in court Sept. 30 to set a date for a trial.