Preview
1 Jordan T. Porter (SBN 250112)
jordan@nshmlaw.com
2 NYE, STIRLING, HALE & MILLER, LLP
33 West Mission Street, Suite 201
3 Santa Barbara, California 93101
Telephone: (805) 963-2345
4 Facsimile: (805) 284-9590
5 Attorney for Plaintiffs THADIAS B. KING and TERRI S.
KING, Trustees of The King Family Trust
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SANTA BARBARA
10
11 THADIAS B. KING and TERRI S. KING, CASE NO.: 21CV00598
Individually and as Trustees of The King Assigned for all purposes, including trial, to
12 Family Trust, the Hon. Colleen K. Stern, Dept. SB5
NYE, STIRLING, HALE & MILLER
SANTA BARBARA, CALIFORNIA 93101
33 WEST MISSION STREET, SUITE 201
13 Plaintiffs, DECLARATION OF THADIAS B. KING
IN SUPPORT OF PLAINTIFFS’
14 vs. OPPOSITION TO DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
15
J.M. SEWALL & ASSOCIATES; JOCK M. [Filed concurrently with Memo of Points and
16 SEWALL; and DOES 1 through 15, inclusive, Authorities in Opposition, Appendix of
Evidence; Objections to Defendants’
17 Defendants. Evidence; Decl. of Porter; Separate
Statement; and RJN]
18
DATE: November 14, 2022
19 TIME: 10:00 a.m.
DEPT.: SB5
20
TRIAL DATE: May 8, 2023
21 Complaint Filed: February 11, 2021
22
23 DECLARATION OF THADIAS B. KING
24 I, Thadias B. King, hereby declare:
25 1. I am Plaintiff in the above-captioned case. The following facts are within my
26 personal knowledge and, if called as a witness, I could and would competently testify to these facts.
27 2. This declaration is made in support of Plaintiffs’ Opposition to Defendants’ Motion
28 for Summary Judgment.
1
DECLARATION OF THADIAS B. KING IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
1 3. To the best of my recollection my wife Terri King and I purchased 2200 Sycamore
2 Canyon Road in late 1999 or 2000.
3 4. In the mid-2000s, we discovered the carport adjacent to the main house, built long
4 before they purchased the property was not permitted and required correction.
5 5. We retained a contractor to obtain permits to make the correction. The contractor
6 proposed both correcting the carport and building a second story unit overheard, and drafted plans
7 to obtain the necessary permits. Because those plans were inadequate to obtain Santa Barbara
8 County approval, we subsequently retained an architect, Brian Hofer to prepare the plans.
9 6. Hofer’s first set of carport conversion plans were approved by Santa Barbara County
10 zoning and planning in 2005, but then withdrawn, rescinded, and the approvals interlineated by
11 Santa Barbara County when we decided to make further revisions to the carport project. When Hofer
12 drafted the revised carport plans in 2010, he requested a survey of our property. We retained Jeff
NYE, STIRLING, HALE & MILLER
SANTA BARBARA, CALIFORNIA 93101
33 WEST MISSION STREET, SUITE 201
13 Prober to complete the survey, which was sent to Hofer and incorporated in his revised site plans,
14 approved by Santa Barbara County in 2010.
15 7. The construction of our carport addition was started by a general contractor and
16 completed shortly thereafter with me acting as builder-owner. At the conclusion of carport
17 construction, I stored copies of all of the plans created for the carport conversion, in a box in the
18 garage.
19 8. In 2017, the plans in the box included ten (10) sets of Hofer’s 2010 plans depicting
20 the correct location of the Kings’ lot line and buildings, four (4) sets of Hofer’s 2005 plans
21 incorrectly depicting the location of the buildings in relation to the property line, one (1) set of plans
22 prepared by the contractor from 2004 or 2005 showing the incorrect location of the Kings’ lot line
23 and buildings. We were unaware of the difference in the plans or the significance of the difference.
24 Roughly a half dozen additional sheets and plans for structural engineering, foundations, and floors
25 plans related to the carport were also stored in the box. Attached to the appendix of evidence as
26 Exhibit 5 is a true and correct copy of Hofer’s October 28, 2010, site plan for the building permit
27 from my box of plans, that I produced in discovery in this matter, bates-stamped KING00823.
28 ///
2
DECLARATION OF THADIAS B. KING IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
1 9. In 2017, we retained Sewall to guide and advice us through Santa Barbara County’s
2 Accessory Dwelling Unit permitting process. My only experience with obtaining zoning and
3 building approvals occurred when we worked on the carport addition. That process took several
4 years and was only successful after we retained Brian Hofer, a licensed architect, to guide us through
5 the process. I have no experience navigating that process by myself, and no ability to prepare any
6 of the necessary plans. I am not and have never been an architect, or surveyor. He advised us to
7 obtain zoning approval first, and to obtain a building permit, based on the plans approved by zoning
8 second, and we did. When Sewall asked if I had any plans for the property, I gave him access to the
9 box of plans, and encouraged him to take the entire box because I did not know what he would need.
10 He declined to take the box, and instead looked through its contents before selecting a plan.
11 10. I did not retain Sewall to prepare the building drawings after discussing his billing
12 rates with him in late July 2017. He told us that if we did not like his rates for the LUP, we would
NYE, STIRLING, HALE & MILLER
SANTA BARBARA, CALIFORNIA 93101
33 WEST MISSION STREET, SUITE 201
13 not like his rate for the building permit and advised us to retain a draftsman instead.
14 11. We took his advice and retained Victor Padilla to draft the construction documents
15 for the building permit for the ADU designed by Sewall. On August 2, 2017, at my request, Sewall
16 emailed me his CAD drawings showing the site plan, elevations, and floorplan to be used by our
17 draftsman, and I forwarded those CAD drawings to Victor Padilla. I could not use those plans myself
18 because I do not have the software necessary to open the files, did not know what was required for
19 construction drawings, and I only needed those drawings for Padilla.
20 12. I relied on Sewall as architect of record when I signed the LUP application with
21 Sewall, and I believed the information he gathered and included in the application – including his
22 drawings - to be true and correct. When I later signed the building application with Padilla, it was
23 consistent with Sewall’s representations. I did not know the rear corner of the garage was in an
24 easement when working with Hofer. The garage was not part of the work Hofer was completing for
25 us. The garage easement had been created before we purchased the property, and we were not aware
26 of its existence prior to work stopping on the ADU project in September 2018.
27 13. The construction of the ADU commenced in August 2018, the roof of the old garage
28 was removed and reframed for the ADU, the foundation for the slab had been excavated, caissons
3
DECLARATION OF THADIAS B. KING IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
1 drilled, steel installed in the caissons and the concrete had been poured before the end of August.
2 During the second week of September, forms to pour the remaining concrete for the slab foundation
3 were being built, and the concrete was to be poured the following week. The work on our ADU
4 through September 2018 did not deviate from the location depicted on Sewall’s site plan. When the
5 issues arose with the Gundersons on Friday, September 15, 2018, I measured the area from the edge
6 of the ADU slab to Gunderson’s access easement, and there was no encroachment.
7 14. Because Gunderson raised the issue of a survey and the access, I looked for a survey
8 completed by Jeff Prober, but I could not locate it in my box of plans. I requested a copy of the
9 survey from Prober on September 16, 2018, I thought it would show Gunderson the ADU
10 construction did not encroach into Gunderson’s access easement. I initially thought we had retained
11 Prober to survey the access easement during a dispute about that easement with the Gundersons in
12 2011 and 2012. I did not realize until later in 2018 that Prober had not surveyed Gunderson’s access
NYE, STIRLING, HALE & MILLER
SANTA BARBARA, CALIFORNIA 93101
33 WEST MISSION STREET, SUITE 201
13 easement but had done work for the carport conversion plans prepared by Hofer in 2010. However,
14 the Prober survey did not show the access easement at all, because it had been requested and
15 incorporated into Brian Hofer’s plans in 2010, two years prior to the access easement dispute
16 between Gunderson and King.
17 15. My attempts to meet with Gunderson and promptly resolve the misunderstanding
18 were met with delay of a number of days. I did not review the Prober survey until forwarding it to
19 Sewall and Padilla on September 24, 2018, because the meeting with Gunderson had been delayed.
20 16. I received Sewall’s letter on Sunday, September 23, 2018. That was the firsttime
21 Sewall informed me a survey was needed. Had he advised me that a survey was needed or asked for
22 a survey in April 2017, I would have located the Prober Survey and given it to him. The following
23 morning, I emailed Sewall a copy of Prober’s survey and also sent a copy to Padilla, based on
24 Sewall’s representations that survey work needed to be done and Padilla’s plans were in error.
25 17. Had our architect Sewall - rather than our neighbor who we had previous problems
26 with - contacted us at any time prior to September 23, 2018 and explained that our permits were
27 based on maps that showed the wrong property line and that part of our garage was over the lot line
28 on Gunderson’s property, we would have stopped work. As it was, Sewall never told us there was a
4
DECLARATION OF THADIAS B. KING IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
DocuSign Envelope ID: 296D8766-CE34-4393-A898-95A94B3CF6CE
1 problem before then, never told us he was in contact with Santa Barbara County working to get our
2 permit revoked, nor told us he was communicating with Santa Barbara County to change our ADU
3 project without our permission. I was upset when Sewall finally informed me on September 23,
4 2018 that the lot line was incorrect, part of our garage was in an easement, that we may have built
5 over the lot line onto the Gundersons’ property, and that this could have been avoided with a survey,
6 because prior to September 23, 2018, Sewall never advised me to obtain a survey. Had he done so,
7 I would have tracked down Prober’s survey. I was further upset after looking through our box of
8 plans that I encouraged Sewall to take before we started and found several sets of Hofer plans that
9 showed the lot line, the orientation of the buildings on our property, and the garage easement in the
10 correct locations. Later in 2018, I went to Santa Barbara County building and zoning and located
11 Hofer’s 2010 plans there too.
12 18. By January 19, 2019, Santa Barbara County gave us a couple of options: 1) it would
NYE, STIRLING, HALE & MILLER
SANTA BARBARA, CALIFORNIA 93101
33 WEST MISSION STREET, SUITE 201
13 approve our ADU with a zero-foot lot line set back from the garage, but we would have to abandon
14 the rear corner of the garage in the garage easement, demolish part of the poured slab, and obtain
15 another zoning approval; or, 2) we could obtain a lot line adjustment with the Gundersons allowing
16 us to use the garage area in the garage easement for an ADU. The County estimated the lot line
17 adjustment process would take at least twelve months to complete. Based on that time estimate, the
18 tremendous cost of lot line adjustment, the requirement of an agreement with the Gundersons to
19 finish that process, and because the existing LUP obtained by Sewall would expire in August 2019,
20 before the lot line adjustment could be achieved at the earliest, I opted to save money and forge
21 ahead with the new zoning approval, demolishing the framing over the garage, removing part of the
22 slab, re-designing and re-engineering the ADU, and to seek a new building permit as soon as
23 possible.
24 I declare under penalty of perjury under the laws of the State of California that the foregoing
25 is true and correct.
31st
26 Executed this day of October 2022 in Santa Barbara California.
27
___________________________________
28 Thadias B. King
5
DECLARATION OF THADIAS B. KING IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Preview
1 Jordan T. Porter (SBN 250112) jordan@nshmlaw.com 2 NYE, STIRLING, HALE & MILLER, LLP 33 West Mission Street, Suite 201 3 Santa Barbara, California 93101 Telephone: (805) 963-2345 4 Facsimile: (805) 284-9590 5 Attorney for Plaintiffs THADIAS B. KING and TERRI S. KING, Trustees of The King Family Trust 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA BARBARA 10 11 THADIAS B. KING and TERRI S. KING, CASE NO.: 21CV00598 Individually and as Trustees of The King Assigned for all purposes, including trial, to 12 Family Trust, the Hon. Colleen K. Stern, Dept. SB5 NYE, STIRLING, HALE & MILLER SANTA BARBARA, CALIFORNIA 93101 33 WEST MISSION STREET, SUITE 201 13 Plaintiffs, DECLARATION OF THADIAS B. KING IN SUPPORT OF PLAINTIFFS’ 14 vs. OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 15 J.M. SEWALL & ASSOCIATES; JOCK M. [Filed concurrently with Memo of Points and 16 SEWALL; and DOES 1 through 15, inclusive, Authorities in Opposition, Appendix of Evidence; Objections to Defendants’ 17 Defendants. Evidence; Decl. of Porter; Separate Statement; and RJN] 18 DATE: November 14, 2022 19 TIME: 10:00 a.m. DEPT.: SB5 20 TRIAL DATE: May 8, 2023 21 Complaint Filed: February 11, 2021 22 23 DECLARATION OF THADIAS B. KING 24 I, Thadias B. King, hereby declare: 25 1. I am Plaintiff in the above-captioned case. The following facts are within my 26 personal knowledge and, if called as a witness, I could and would competently testify to these facts. 27 2. This declaration is made in support of Plaintiffs’ Opposition to Defendants’ Motion 28 for Summary Judgment. 1 DECLARATION OF THADIAS B. KING IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 3. To the best of my recollection my wife Terri King and I purchased 2200 Sycamore 2 Canyon Road in late 1999 or 2000. 3 4. In the mid-2000s, we discovered the carport adjacent to the main house, built long 4 before they purchased the property was not permitted and required correction. 5 5. We retained a contractor to obtain permits to make the correction. The contractor 6 proposed both correcting the carport and building a second story unit overheard, and drafted plans 7 to obtain the necessary permits. Because those plans were inadequate to obtain Santa Barbara 8 County approval, we subsequently retained an architect, Brian Hofer to prepare the plans. 9 6. Hofer’s first set of carport conversion plans were approved by Santa Barbara County 10 zoning and planning in 2005, but then withdrawn, rescinded, and the approvals interlineated by 11 Santa Barbara County when we decided to make further revisions to the carport project. When Hofer 12 drafted the revised carport plans in 2010, he requested a survey of our property. We retained Jeff NYE, STIRLING, HALE & MILLER SANTA BARBARA, CALIFORNIA 93101 33 WEST MISSION STREET, SUITE 201 13 Prober to complete the survey, which was sent to Hofer and incorporated in his revised site plans, 14 approved by Santa Barbara County in 2010. 15 7. The construction of our carport addition was started by a general contractor and 16 completed shortly thereafter with me acting as builder-owner. At the conclusion of carport 17 construction, I stored copies of all of the plans created for the carport conversion, in a box in the 18 garage. 19 8. In 2017, the plans in the box included ten (10) sets of Hofer’s 2010 plans depicting 20 the correct location of the Kings’ lot line and buildings, four (4) sets of Hofer’s 2005 plans 21 incorrectly depicting the location of the buildings in relation to the property line, one (1) set of plans 22 prepared by the contractor from 2004 or 2005 showing the incorrect location of the Kings’ lot line 23 and buildings. We were unaware of the difference in the plans or the significance of the difference. 24 Roughly a half dozen additional sheets and plans for structural engineering, foundations, and floors 25 plans related to the carport were also stored in the box. Attached to the appendix of evidence as 26 Exhibit 5 is a true and correct copy of Hofer’s October 28, 2010, site plan for the building permit 27 from my box of plans, that I produced in discovery in this matter, bates-stamped KING00823. 28 /// 2 DECLARATION OF THADIAS B. KING IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 9. In 2017, we retained Sewall to guide and advice us through Santa Barbara County’s 2 Accessory Dwelling Unit permitting process. My only experience with obtaining zoning and 3 building approvals occurred when we worked on the carport addition. That process took several 4 years and was only successful after we retained Brian Hofer, a licensed architect, to guide us through 5 the process. I have no experience navigating that process by myself, and no ability to prepare any 6 of the necessary plans. I am not and have never been an architect, or surveyor. He advised us to 7 obtain zoning approval first, and to obtain a building permit, based on the plans approved by zoning 8 second, and we did. When Sewall asked if I had any plans for the property, I gave him access to the 9 box of plans, and encouraged him to take the entire box because I did not know what he would need. 10 He declined to take the box, and instead looked through its contents before selecting a plan. 11 10. I did not retain Sewall to prepare the building drawings after discussing his billing 12 rates with him in late July 2017. He told us that if we did not like his rates for the LUP, we would NYE, STIRLING, HALE & MILLER SANTA BARBARA, CALIFORNIA 93101 33 WEST MISSION STREET, SUITE 201 13 not like his rate for the building permit and advised us to retain a draftsman instead. 14 11. We took his advice and retained Victor Padilla to draft the construction documents 15 for the building permit for the ADU designed by Sewall. On August 2, 2017, at my request, Sewall 16 emailed me his CAD drawings showing the site plan, elevations, and floorplan to be used by our 17 draftsman, and I forwarded those CAD drawings to Victor Padilla. I could not use those plans myself 18 because I do not have the software necessary to open the files, did not know what was required for 19 construction drawings, and I only needed those drawings for Padilla. 20 12. I relied on Sewall as architect of record when I signed the LUP application with 21 Sewall, and I believed the information he gathered and included in the application – including his 22 drawings - to be true and correct. When I later signed the building application with Padilla, it was 23 consistent with Sewall’s representations. I did not know the rear corner of the garage was in an 24 easement when working with Hofer. The garage was not part of the work Hofer was completing for 25 us. The garage easement had been created before we purchased the property, and we were not aware 26 of its existence prior to work stopping on the ADU project in September 2018. 27 13. The construction of the ADU commenced in August 2018, the roof of the old garage 28 was removed and reframed for the ADU, the foundation for the slab had been excavated, caissons 3 DECLARATION OF THADIAS B. KING IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 drilled, steel installed in the caissons and the concrete had been poured before the end of August. 2 During the second week of September, forms to pour the remaining concrete for the slab foundation 3 were being built, and the concrete was to be poured the following week. The work on our ADU 4 through September 2018 did not deviate from the location depicted on Sewall’s site plan. When the 5 issues arose with the Gundersons on Friday, September 15, 2018, I measured the area from the edge 6 of the ADU slab to Gunderson’s access easement, and there was no encroachment. 7 14. Because Gunderson raised the issue of a survey and the access, I looked for a survey 8 completed by Jeff Prober, but I could not locate it in my box of plans. I requested a copy of the 9 survey from Prober on September 16, 2018, I thought it would show Gunderson the ADU 10 construction did not encroach into Gunderson’s access easement. I initially thought we had retained 11 Prober to survey the access easement during a dispute about that easement with the Gundersons in 12 2011 and 2012. I did not realize until later in 2018 that Prober had not surveyed Gunderson’s access NYE, STIRLING, HALE & MILLER SANTA BARBARA, CALIFORNIA 93101 33 WEST MISSION STREET, SUITE 201 13 easement but had done work for the carport conversion plans prepared by Hofer in 2010. However, 14 the Prober survey did not show the access easement at all, because it had been requested and 15 incorporated into Brian Hofer’s plans in 2010, two years prior to the access easement dispute 16 between Gunderson and King. 17 15. My attempts to meet with Gunderson and promptly resolve the misunderstanding 18 were met with delay of a number of days. I did not review the Prober survey until forwarding it to 19 Sewall and Padilla on September 24, 2018, because the meeting with Gunderson had been delayed. 20 16. I received Sewall’s letter on Sunday, September 23, 2018. That was the firsttime 21 Sewall informed me a survey was needed. Had he advised me that a survey was needed or asked for 22 a survey in April 2017, I would have located the Prober Survey and given it to him. The following 23 morning, I emailed Sewall a copy of Prober’s survey and also sent a copy to Padilla, based on 24 Sewall’s representations that survey work needed to be done and Padilla’s plans were in error. 25 17. Had our architect Sewall - rather than our neighbor who we had previous problems 26 with - contacted us at any time prior to September 23, 2018 and explained that our permits were 27 based on maps that showed the wrong property line and that part of our garage was over the lot line 28 on Gunderson’s property, we would have stopped work. As it was, Sewall never told us there was a 4 DECLARATION OF THADIAS B. KING IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DocuSign Envelope ID: 296D8766-CE34-4393-A898-95A94B3CF6CE 1 problem before then, never told us he was in contact with Santa Barbara County working to get our 2 permit revoked, nor told us he was communicating with Santa Barbara County to change our ADU 3 project without our permission. I was upset when Sewall finally informed me on September 23, 4 2018 that the lot line was incorrect, part of our garage was in an easement, that we may have built 5 over the lot line onto the Gundersons’ property, and that this could have been avoided with a survey, 6 because prior to September 23, 2018, Sewall never advised me to obtain a survey. Had he done so, 7 I would have tracked down Prober’s survey. I was further upset after looking through our box of 8 plans that I encouraged Sewall to take before we started and found several sets of Hofer plans that 9 showed the lot line, the orientation of the buildings on our property, and the garage easement in the 10 correct locations. Later in 2018, I went to Santa Barbara County building and zoning and located 11 Hofer’s 2010 plans there too. 12 18. By January 19, 2019, Santa Barbara County gave us a couple of options: 1) it would NYE, STIRLING, HALE & MILLER SANTA BARBARA, CALIFORNIA 93101 33 WEST MISSION STREET, SUITE 201 13 approve our ADU with a zero-foot lot line set back from the garage, but we would have to abandon 14 the rear corner of the garage in the garage easement, demolish part of the poured slab, and obtain 15 another zoning approval; or, 2) we could obtain a lot line adjustment with the Gundersons allowing 16 us to use the garage area in the garage easement for an ADU. The County estimated the lot line 17 adjustment process would take at least twelve months to complete. Based on that time estimate, the 18 tremendous cost of lot line adjustment, the requirement of an agreement with the Gundersons to 19 finish that process, and because the existing LUP obtained by Sewall would expire in August 2019, 20 before the lot line adjustment could be achieved at the earliest, I opted to save money and forge 21 ahead with the new zoning approval, demolishing the framing over the garage, removing part of the 22 slab, re-designing and re-engineering the ADU, and to seek a new building permit as soon as 23 possible. 24 I declare under penalty of perjury under the laws of the State of California that the foregoing 25 is true and correct. 31st 26 Executed this day of October 2022 in Santa Barbara California. 27 ___________________________________ 28 Thadias B. King 5 DECLARATION OF THADIAS B. KING IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT