Preview
Law Oflice 0f
MICHAEL P. RING F l E D
AND ASSOCIATES
Michael P. Ring, State Bar #95922
”558% 191gm“
Iris L. M. Ring, State Bar #298179 JUL 1_3
' 2015
1234 Santa Barbara Street Darrel E. Parker. Executive Offlcr
Santa Barbara. CA 93101 .-
(805) 564-2333
8"
on fly up era ’ m
ATTORNEYS FOR PLAINTIFF PATSY MOLER
\OOOQONM-hUJNH
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA
ANACAPA DIVISION
Patsy Moler, Case No. 1417847
Plaintiff, DECLARATION OF ROBERT I.
SCHWARTZ IN OPPOSITION TO
v. MOTION TO EXCLUDE ROBERT
SCHWARTZ AS A WITNESS, ETC.
Chris Hulme, individually and dba
Clearview Industries, Inc., and DOES 1 DATE: 7/18/16
through 10, inclusive TIME: 9:30 A.M.
DEPT. SB]
Defendants.
(Assigned to Hon. James E. Herman)
vvvvvvvvvvvvvvvvvvvvvvv
NNNNNNNNNHHF—Op‘t—IHHHh—Ib—l
Clearview Industries, Inc.,
Cross-Complainant,
v.
oodmm-hwwwoooumm-Amwv—o
Patsy Moler, et al,
Cross-Defendants.
1,ROBERT I. SCHWARTZ, declare as follows:
I am over 18 years of age, and if called as a witness I could and would competently testify
as follows:
1. I have been President of Schwartz/Robert & Associates, Inc. and its predecessor,
Schwartz, Romano & Associates, Inc. (“SRA”) since the initial incorporation of the latter company
in 1991. I am a licensed California Architect (No. C-l4545) and General Contractor, (Class B-l,
No. 417412). If called as a witness I could and would competently testify as follows:
I
DECLARATION OF ROBERT I. SCHWARTZ IN
OPPOSITION TO MOTION TO EXCLUDE SCHWARTZ
2. Defendants took my deposition on July 1 1, 2016. 'lhey spent a total of approximately
4 V2 hours in the depositions.
3. I appeared at the deposition with a number of items that were related to the tasks that
I performed in connection with this case. .‘Those items included a Compact Disc (CD) containing
the photos taken by me on 12 June 2015 of the Patsy Moler residential property located at 502 Las
\OOOVQM-ti—s
Alturas in the City of Santa Barbara, a large spreadsheet tabulation reflecting a complete accounting
of the financial aspects of the relationship between Defendants and Ms. Moler together with
summary calculations, a binder containing hard-printed copies of all emails exchanged between my
office and Mr. Ring’s law firm, a portable hard drive containing all case-related documents provided
to me by attorney Michael P. Ring’s office, another hard-drive containing a complete download of
case-related information retained by my office in electronic format, another portable hard drive
containing all photos of the Moler property retained by Landscape Architect Mr. Leland Walmsley
together with a large spreadsheet describing the deficient means, methods and work products
produced by Defendants and the later correction thereof, my complete project working file in three
large loose-leaf volumes and various other reference sources that I reviewed and relied upon in
forming my professional opinions concerning the matters in dispute in this case. All of the above
items were produced and provided to Defendants’ counsel either to keep or to make copies of for
their use at the deposition or otherwise.
NNNNNNNNMHH—‘b‘i—‘F‘h‘b—‘H—d
4. During the course of my expert deposition the Defendants’ counsel used virtually
none of the items provided during the deposition for their reference, despite being informed of what
they were and what use I was going to put them to at trial.
OOxlONLnJtHOOOOVQM-bwwflo
5. I understand that I have been designated as an expert witness in this matter to cover
each of the areas that were inquired into by counsel (albeit sparingly) and testified to by me. Those
areas include construction related issues at the subject project, including, but not limited to the
absence of pre-prepared construction documentation, the lack of required building permits and other
public agency approvals, the absence of a signed construction contract of any form, the improper
form of contract proposal presented by Defendants to Ms. Moler, the lack of required and
appropriate California state contractors licenses relative to the type, nature and scope of work
actually performed by Defendants, misrepresentation by Defendants as to its technical capability
2
DECLARATION OF ROBERT I. SCHWARTZ IN
OPPOSITION TO MOTION TO EXCLUDE SCHWARTZ
and experience, unlawful subcontracting of work performed upon the property, the use of unsafe
construction means and methods, structural damages done by Defendants to load-resisting retaining
walls, foundation elements and framing elements upon the Moler property, errors & omissions
resulting in a legion of construction defects, failures to conform with applicable building codes and
industry standards,
\OOO\lO\UI-FwNv—n required terms or existence of any appropriate construction contract, overbilling
for labor that is in no conceivable way reconcilable with the scope of work actually performed,
excessive profiteering, billing of Moler for materials later torn out and disposed of due to iterative
defective work by Defendants, failures of disclosure of complete and accurate project financial
accounting records, financial fraud, necessity of correction of defective work, entitlement to
O
)—I
payment by Defendants, and other matters pertaining to the construction project which is the general
‘11 subject of this litigation. None of the testimony that I gave at deposition, or will give at trial falls
12 outside the scope of the above designation.
13
14 I will not testify about the role of a CFO ofjust a_ny kind of company. I will offer testimony
15 about the proper role of a Chief Financial Officer of a company that is licensed in California t9
16 mrform building construction, whether that firm be a corporatiog partnership or sole proprietorship' .
17 Furthermore, I am clearly qualified to provide such testimony as I have been the Chief Financial
18 Officer of a General Contracting corporation, the Construction Administrator upon numerous
19 construction projects (some of them very large and technically complex) having an aggregate value
20 in the billions of dollars, the ExecutiVe Construction Manager for individual construction projects
21 costing upwards of over three hundred million ($300MM) in today’s dollars and the Executive in
22 Charge of development projects worth in aggregate several hundreds of millions of dollars. All 01
23 these roles involved my close personal management and administration of construction projects.
24 Accordingly, the standards of industry performance required of the Chief Financial Officer of a
25 construction contracting company and the possible breaches thereof fall well within the framework
26 of my professional training, knowledge and experience. I am thus fully qualified to knowledgeably
27 opine regarding matters of construction contract formation, construction contract financial
2s
3
DECLARATION OF ROBERT I. SCHWARTZ IN
OPPOSITION TO MOTION TOEXCLUDE SCHWARTZ
entitlements to payment.
7. Prior to my deposition .in this matter I was provided with a number of photogaphs
by Mr. Ring. I understand that those photographs were provided to him during the discovery in this
matter by Defendants’ initial counsel, William Clinkenbeard. I also understand that Defendants
produced photographs
\OOO\IO\(IIJ>UJNb—-
that were taken by Mr. Chris Hulme himself or taken by other people
associated with his companyfiand at his direction. When I reviewed the photographic records
provided I found that there were many hundreds of photographs that were said to have been taken
and produced by the Defendants. I shared those photographs with Mr. Leland Walmsley. At my
deposition counsel for the Defendants were expressly informed that the photographs that I reviewed
to form my expert opinions included in great measure the photographs provided to 113 by the
Defendants.
8. As a result of viewing the photographs that the Defendants provided I noted that there
were many images which show that the work performed by Defendants was performed in a patently
unsafe manner. As demonstrated by later professional survey; some of Defendant’s work was
constructed upon neighboring properties without the prior written consent of the respective owners
of those adjoining properties. Some of the work performed by Defendants lefi unsafe structural,
electrical and site conditions that required prompt correction so that the Moler property could be
NNNNNNNNNH—‘HV-‘WI—‘HI—iv—fim
safely occupied. Other identified safety hazards created by Defendants remain to be corrected. I
believe that it was and is necessary for Ms. Moler to take reasonable and appropriate measures to
correct those defects so that the house can be lived in without the risk of future failure or injury. I
WQQM-fiwN—‘OOWQQMAMNHO
understand that some steps involved in correcting the problems with Defendant’s work created at
the Moler property were documented in the numerous pictures produced by Mr. Walmsley that were
provided to Defendants and their counsel and in some instances reflected in my later photographs
that were also all provided to Defendants’ counsel.
9. A significant number of the photographs that I made mention of at the deposition,
and reviewed by me, were reportedly in the possession of Mr. Walrnsley, and not Plaintiff or her
counsel, and were not obtained by me until shortly before my deposition. Those photographs have
now all been provided to Defendants on the hard drive that was provided to me by Mr. Walmsley
4
DECLARATION OF ROBERT I. SCHWARTZ IN
OPPOSITION TO MOTION TO EXCLUDE SCHWARTZ
and given to Defendants’ counsel by me at my deposition, and on the duplicate CD containing all
of my case~file personal photos that were provided to Defendants’ counsel by Mr. Ring during the
court hearing on 12 July 2016.
10. Restated: most of the course-of-construction photographs that were relied upon by
me in my evaluation of the circumstances of this case and in the formation of my expert opinions
\OOO\IO\UI&UJNH
originally came from the Defendants own project archives.
11. I intend to testify as to the underlying factors from which a jury will be able to
conclude that Fraud and Financial Fraud have occurred in this matter.
12. As a California licensed professional Architect, Licensed General
Contractor, Executive Construction Manager, Real Estate Development Executive and construction
consultant with my level of training and experience, I have the necessary qualifications to determine
that the Defendants in this case actually committed Fraud and Financial Fraud in their dealings with
Ms. Moler and the construction work they performed upon her property, as far as it went.
I declare under penalty of perjury under the laws of the State of California that the forgoing
is true and correct and that this declaration was executed this 17th day of July, 2016.
ROBERT I.
a
SCHWARTZ
OO\IO\m-wHO\OOO\IO\MAWNv—‘O
S
DECLARATION OF ROBERT I. SCHWARTZ IN
OPPOSITION TO MOTION TO EXCLUDE SCHWARTZ
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA
I am employed in the County of Santa Barbara, State of California. Iam over the age of 18
and not a party to the within action; my business address is 1234 Santa Barbara Street, Santa Barbara,
California, 93101.
On July 18, 2016, I served the foregoing document described as DECLARATION OF
ROBERT I. SCHWARTZ on the interested parties in this action
XX
JEFFREY
\OOO\I0\
by placing _
M. BENNION
the original XX a true copy thereof addressed
BRIAN K. FINDLEY
as follows:
2869 INDIA ST MULLIGAN, BANHAM & FINDLEY
SAN DIEGO, CA 92103 2442 Fourth Avenue, Suite 100
San Diego, CA 92101
10
(BY FEDERAL EXPRESS OVERNIGHT DELIVERY) I caused such documents to be
11 picked up by Federal Express at 1234 Santa Barbara St., Santa Barbara, California, 93101, in a box
designated by Federal Express for overnight delivery, with delivery fees provided for, addressed to
12 the person on whom it is to be served.
13 XX (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the
addressee at 1100 ANACAPA STREET, SANTA BARBARA CA
14
15 (BY ELECTRONIC SERVICE) the electronic address where I served this is
jeff@jbennionlaw.com.
16
(BY PLACING FOR COLLECTION AND MAILING) I placed the above-mentioned
17 document(s) in sealed envelope(s) addressed as set forth above, and placed the envelope(s) for
collection and mailing following ordinary business practices. Iam readily familiar with the firm’s
18
practice for collection and processing of correspondence for mailing with the United States Postal
19
Service. Under that practice itwould be deposited with the US. Postal Service on that same day
with postage thereon fully prepaid at 1234 Santa Barbara Street, Santa Barbara, CA 93101 in the
20 ordinary course of business.
21 XX (STATE) I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
22
23 Executed on July 18, 2016, at Santa Barbara, California.
24
25
MICHAEL P.
Type or Print Name
RING
I 7Efiture
26
27
28
l
PROOF OF SERVICE
Preview
Law Oflice 0f MICHAEL P. RING F l E D AND ASSOCIATES Michael P. Ring, State Bar #95922 ”558% 191gm“ Iris L. M. Ring, State Bar #298179 JUL 1_3 ' 2015 1234 Santa Barbara Street Darrel E. Parker. Executive Offlcr Santa Barbara. CA 93101 .- (805) 564-2333 8" on fly up era ’ m ATTORNEYS FOR PLAINTIFF PATSY MOLER \OOOQONM-hUJNH SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA ANACAPA DIVISION Patsy Moler, Case No. 1417847 Plaintiff, DECLARATION OF ROBERT I. SCHWARTZ IN OPPOSITION TO v. MOTION TO EXCLUDE ROBERT SCHWARTZ AS A WITNESS, ETC. Chris Hulme, individually and dba Clearview Industries, Inc., and DOES 1 DATE: 7/18/16 through 10, inclusive TIME: 9:30 A.M. DEPT. SB] Defendants. (Assigned to Hon. James E. Herman) vvvvvvvvvvvvvvvvvvvvvvv NNNNNNNNNHHF—Op‘t—IHHHh—Ib—l Clearview Industries, Inc., Cross-Complainant, v. oodmm-hwwwoooumm-Amwv—o Patsy Moler, et al, Cross-Defendants. 1,ROBERT I. SCHWARTZ, declare as follows: I am over 18 years of age, and if called as a witness I could and would competently testify as follows: 1. I have been President of Schwartz/Robert & Associates, Inc. and its predecessor, Schwartz, Romano & Associates, Inc. (“SRA”) since the initial incorporation of the latter company in 1991. I am a licensed California Architect (No. C-l4545) and General Contractor, (Class B-l, No. 417412). If called as a witness I could and would competently testify as follows: I DECLARATION OF ROBERT I. SCHWARTZ IN OPPOSITION TO MOTION TO EXCLUDE SCHWARTZ 2. Defendants took my deposition on July 1 1, 2016. 'lhey spent a total of approximately 4 V2 hours in the depositions. 3. I appeared at the deposition with a number of items that were related to the tasks that I performed in connection with this case. .‘Those items included a Compact Disc (CD) containing the photos taken by me on 12 June 2015 of the Patsy Moler residential property located at 502 Las \OOOVQM-ti—s Alturas in the City of Santa Barbara, a large spreadsheet tabulation reflecting a complete accounting of the financial aspects of the relationship between Defendants and Ms. Moler together with summary calculations, a binder containing hard-printed copies of all emails exchanged between my office and Mr. Ring’s law firm, a portable hard drive containing all case-related documents provided to me by attorney Michael P. Ring’s office, another hard-drive containing a complete download of case-related information retained by my office in electronic format, another portable hard drive containing all photos of the Moler property retained by Landscape Architect Mr. Leland Walmsley together with a large spreadsheet describing the deficient means, methods and work products produced by Defendants and the later correction thereof, my complete project working file in three large loose-leaf volumes and various other reference sources that I reviewed and relied upon in forming my professional opinions concerning the matters in dispute in this case. All of the above items were produced and provided to Defendants’ counsel either to keep or to make copies of for their use at the deposition or otherwise. NNNNNNNNMHH—‘b‘i—‘F‘h‘b—‘H—d 4. During the course of my expert deposition the Defendants’ counsel used virtually none of the items provided during the deposition for their reference, despite being informed of what they were and what use I was going to put them to at trial. OOxlONLnJtHOOOOVQM-bwwflo 5. I understand that I have been designated as an expert witness in this matter to cover each of the areas that were inquired into by counsel (albeit sparingly) and testified to by me. Those areas include construction related issues at the subject project, including, but not limited to the absence of pre-prepared construction documentation, the lack of required building permits and other public agency approvals, the absence of a signed construction contract of any form, the improper form of contract proposal presented by Defendants to Ms. Moler, the lack of required and appropriate California state contractors licenses relative to the type, nature and scope of work actually performed by Defendants, misrepresentation by Defendants as to its technical capability 2 DECLARATION OF ROBERT I. SCHWARTZ IN OPPOSITION TO MOTION TO EXCLUDE SCHWARTZ and experience, unlawful subcontracting of work performed upon the property, the use of unsafe construction means and methods, structural damages done by Defendants to load-resisting retaining walls, foundation elements and framing elements upon the Moler property, errors & omissions resulting in a legion of construction defects, failures to conform with applicable building codes and industry standards, \OOO\lO\UI-FwNv—n required terms or existence of any appropriate construction contract, overbilling for labor that is in no conceivable way reconcilable with the scope of work actually performed, excessive profiteering, billing of Moler for materials later torn out and disposed of due to iterative defective work by Defendants, failures of disclosure of complete and accurate project financial accounting records, financial fraud, necessity of correction of defective work, entitlement to O )—I payment by Defendants, and other matters pertaining to the construction project which is the general ‘11 subject of this litigation. None of the testimony that I gave at deposition, or will give at trial falls 12 outside the scope of the above designation. 13 14 I will not testify about the role of a CFO ofjust a_ny kind of company. I will offer testimony 15 about the proper role of a Chief Financial Officer of a company that is licensed in California t9 16 mrform building construction, whether that firm be a corporatiog partnership or sole proprietorship' . 17 Furthermore, I am clearly qualified to provide such testimony as I have been the Chief Financial 18 Officer of a General Contracting corporation, the Construction Administrator upon numerous 19 construction projects (some of them very large and technically complex) having an aggregate value 20 in the billions of dollars, the ExecutiVe Construction Manager for individual construction projects 21 costing upwards of over three hundred million ($300MM) in today’s dollars and the Executive in 22 Charge of development projects worth in aggregate several hundreds of millions of dollars. All 01 23 these roles involved my close personal management and administration of construction projects. 24 Accordingly, the standards of industry performance required of the Chief Financial Officer of a 25 construction contracting company and the possible breaches thereof fall well within the framework 26 of my professional training, knowledge and experience. I am thus fully qualified to knowledgeably 27 opine regarding matters of construction contract formation, construction contract financial 2s 3 DECLARATION OF ROBERT I. SCHWARTZ IN OPPOSITION TO MOTION TOEXCLUDE SCHWARTZ entitlements to payment. 7. Prior to my deposition .in this matter I was provided with a number of photogaphs by Mr. Ring. I understand that those photographs were provided to him during the discovery in this matter by Defendants’ initial counsel, William Clinkenbeard. I also understand that Defendants produced photographs \OOO\IO\(IIJ>UJNb—- that were taken by Mr. Chris Hulme himself or taken by other people associated with his companyfiand at his direction. When I reviewed the photographic records provided I found that there were many hundreds of photographs that were said to have been taken and produced by the Defendants. I shared those photographs with Mr. Leland Walmsley. At my deposition counsel for the Defendants were expressly informed that the photographs that I reviewed to form my expert opinions included in great measure the photographs provided to 113 by the Defendants. 8. As a result of viewing the photographs that the Defendants provided I noted that there were many images which show that the work performed by Defendants was performed in a patently unsafe manner. As demonstrated by later professional survey; some of Defendant’s work was constructed upon neighboring properties without the prior written consent of the respective owners of those adjoining properties. Some of the work performed by Defendants lefi unsafe structural, electrical and site conditions that required prompt correction so that the Moler property could be NNNNNNNNNH—‘HV-‘WI—‘HI—iv—fim safely occupied. Other identified safety hazards created by Defendants remain to be corrected. I believe that it was and is necessary for Ms. Moler to take reasonable and appropriate measures to correct those defects so that the house can be lived in without the risk of future failure or injury. I WQQM-fiwN—‘OOWQQMAMNHO understand that some steps involved in correcting the problems with Defendant’s work created at the Moler property were documented in the numerous pictures produced by Mr. Walmsley that were provided to Defendants and their counsel and in some instances reflected in my later photographs that were also all provided to Defendants’ counsel. 9. A significant number of the photographs that I made mention of at the deposition, and reviewed by me, were reportedly in the possession of Mr. Walrnsley, and not Plaintiff or her counsel, and were not obtained by me until shortly before my deposition. Those photographs have now all been provided to Defendants on the hard drive that was provided to me by Mr. Walmsley 4 DECLARATION OF ROBERT I. SCHWARTZ IN OPPOSITION TO MOTION TO EXCLUDE SCHWARTZ and given to Defendants’ counsel by me at my deposition, and on the duplicate CD containing all of my case~file personal photos that were provided to Defendants’ counsel by Mr. Ring during the court hearing on 12 July 2016. 10. Restated: most of the course-of-construction photographs that were relied upon by me in my evaluation of the circumstances of this case and in the formation of my expert opinions \OOO\IO\UI&UJNH originally came from the Defendants own project archives. 11. I intend to testify as to the underlying factors from which a jury will be able to conclude that Fraud and Financial Fraud have occurred in this matter. 12. As a California licensed professional Architect, Licensed General Contractor, Executive Construction Manager, Real Estate Development Executive and construction consultant with my level of training and experience, I have the necessary qualifications to determine that the Defendants in this case actually committed Fraud and Financial Fraud in their dealings with Ms. Moler and the construction work they performed upon her property, as far as it went. I declare under penalty of perjury under the laws of the State of California that the forgoing is true and correct and that this declaration was executed this 17th day of July, 2016. ROBERT I. a SCHWARTZ OO\IO\m-wHO\OOO\IO\MAWNv—‘O S DECLARATION OF ROBERT I. SCHWARTZ IN OPPOSITION TO MOTION TO EXCLUDE SCHWARTZ PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA I am employed in the County of Santa Barbara, State of California. Iam over the age of 18 and not a party to the within action; my business address is 1234 Santa Barbara Street, Santa Barbara, California, 93101. On July 18, 2016, I served the foregoing document described as DECLARATION OF ROBERT I. SCHWARTZ on the interested parties in this action XX JEFFREY \OOO\I0\ by placing _ M. BENNION the original XX a true copy thereof addressed BRIAN K. FINDLEY as follows: 2869 INDIA ST MULLIGAN, BANHAM & FINDLEY SAN DIEGO, CA 92103 2442 Fourth Avenue, Suite 100 San Diego, CA 92101 10 (BY FEDERAL EXPRESS OVERNIGHT DELIVERY) I caused such documents to be 11 picked up by Federal Express at 1234 Santa Barbara St., Santa Barbara, California, 93101, in a box designated by Federal Express for overnight delivery, with delivery fees provided for, addressed to 12 the person on whom it is to be served. 13 XX (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the addressee at 1100 ANACAPA STREET, SANTA BARBARA CA 14 15 (BY ELECTRONIC SERVICE) the electronic address where I served this is jeff@jbennionlaw.com. 16 (BY PLACING FOR COLLECTION AND MAILING) I placed the above-mentioned 17 document(s) in sealed envelope(s) addressed as set forth above, and placed the envelope(s) for collection and mailing following ordinary business practices. Iam readily familiar with the firm’s 18 practice for collection and processing of correspondence for mailing with the United States Postal 19 Service. Under that practice itwould be deposited with the US. Postal Service on that same day with postage thereon fully prepaid at 1234 Santa Barbara Street, Santa Barbara, CA 93101 in the 20 ordinary course of business. 21 XX (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 22 23 Executed on July 18, 2016, at Santa Barbara, California. 24 25 MICHAEL P. Type or Print Name RING I 7Efiture 26 27 28 l PROOF OF SERVICE