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IVICA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jun-25-2012 10:31 am
Case Number: CGC-10-498405
Filing Date: Jun-21-2012 10:29
Filed by: WESLEY G. RAMIREZ
Juke Box: 001 Image: 03663759
MOTION (CIVIL GENERIC)
PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al
001003663759
Instructions:
Please place this sheet on top of the document to be scanned.o ON OW TO FF W NY =
10
Sai -
GARY A. ANGEL, CSB No. 70006 in Francisco fF
FREAR STEPHEN SCHMID, CSB No. 96089 JUN
LAW OFFICES OF GARY A. ANGEL 21 2012
177 POST STREET, EIGHTH FLOOR
SAN FRANCISCO, CA 94108 CLERK
TELEPHONE: (415) 788-5935 By:
FACSIMILE: (415) 788-5958
JEFFREY H. LOWENTHAL, CSB No.111763
STEYER LOWENTHAL BOODROOKAS
ALVAREZ & SMITH LLP
ONE CALIFORNIA STREET, THIRD FLOOR
SAN FRANCISCO, CA 94111
TELEPHONE: (415) 421-3400
FACSIMILE: (415) 421-2234
Attorneys for Plaintiff and Cross-Defendant
PERFORMING ARTS, LLC
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PERFORMING ARTS, LLC, a Delaware No. CGC-10-498405
limited liability company, [Discovery]
Plaintiff, PLAINTIFF PERFORMING ARTS,
LLC’S NOTICE OF MOTION AND
v. MOTION FOR PROTECTIVE ORDER
AND APPOINTMENT OF DISCOVERY
KILLARNEY CONSTRUCTION CO., REFEREE AND REQUEST FOR
INC., MID-MARKET DEVELOPMENT SANCTIONS FOR DISCOVERY
CO., INC., CARDINAL CONSULTING, ABUSE AGAINST DEFENDANT
INC., CULLINANE CONSTRUCTION, CARDINAL CONSULTING, INC. AND
AL NORMAN MECHANICAL, INC., ITS ATTORNEYS OF RECORD AND
MICHAEL MURRAY, and DOES 1 MEMORANDUM OF POINTS AND
THROUGH 200, inclusive, AUTHORITIES IN SUPPORT
THEREOF
Defendants.
/ Date: July 20, 2012
Time: 9:00 AM
AND RELATED CROSS-ACTIONS. Dept: 302
/ Honorable Harold E. Kahn
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE that on July 20, 2012, at 9:00 AM, in Department 302,
of the above-entitled court, plaintiff PERFORMING ARTS, LLC does hereby and will
move for an order appointing a discovery referee, the cost to be borne by defendant
4
PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A'S IN SUPPORT OF ITS MOTION FOR ORDER
APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINAL.o ON Oa F&F Ww DY =
NH NY NY NSN NY YN YN AB BW a a ae sa ow a a a
oaoN ODA F WH A FD OG DN DA FW HY = CO
CARDINAL CONSULTING, INC. (“Cardinal”) and/or its attorneys of record Gordon &
Rees, LLP to supervise the continued deposition of Ellen Chiu Yee and for an order
imposing sanctions upon defendant Cardinal and/or its counsel Gordon & Rees for its
abuse of discovery process and for the costs of bringing this motion to be awarded to
plaintiff in the amount of $2,318.75. This motion will be made pursuant to this notice of
motion and motion, the memorandum of points and authorities below and the
accompanying declarations of Frear Stephen Schmid and Gary A. Angel in support
hereof, and such other matters and court may properly consider.
Dated: June 20, 2012 Respectfully submitted,
LAW OFFICES OF GARY A. ANGEL
Frear Stephen Schmid, Attorneys for
Plaintiff and Cross-Defendant
PERFORMING ARTS, LLC
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
I RELIEF SOUGHT
Plaintiff PERFORMING ARTS, LLC seeks the appointment of a referee to
oversee the conclusion of the deposition of a subpoenaed witness, Ms. Ellen Chiu-Yee,
and the imposition of sanctions against defendant CARDINAL CONSULTING, INC.
(“Cardinal”) and/or its attorneys Gordon & Rees, LLP for discovery abuse due to its
repeated unfounded and speaking objections, including disparaging comments directed
at plaintiff's counsel, at the deposition of Ms. Chiu-Yee, for example:
“Q Right. Just so | understand it.
You don't want to be making loans on a project that is not
progressing consistent with the plans, right?
MR. RUSSELL: Objection. Vague. Misstates her testimony,
Counsel. Stop changing her testimony, Counsel. Argumentative.
BY MR. ANGEL:
Q_ Is that correct?
2
PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A’S IN SUPPORT OF ITS MOTION FOR ORDER
APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINAL=
oon oO ak WO NY
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MR. RUSSELL: You are changing her words, Counsel.
MR. ANGEL: Make your objections appropriately, or we'll go --
MR. RUSSELL: Don't take advantage of a witness that doesn't
have a counsel.
MR. ANGEL: Look, Counsel, we know what you're doing.
MR. RUSSELL: Don't play tricks. You accuse me of playing tricks.
MR. ANGEL: We know what you are going here --
MR. RUSSELL: | am just tell --
MR. ANGEL: Hold on. You keep going like this --
MR. RUSSELL: | am accusing you of playing tricks.
MR. ANGEL: We are going to the commissioner, okay?
MR. RUSSELL: You can go to the commissioner.
MR. ANGEL: That's fine. | will. Let's get the question back.
MR. RUSSELL: | just want you to stop exploiting a non-counseled,
or a witness who is here, not represented by counsel.
BY MR. ANGEL:
Q_ Let me just tell you something, Ellen. The last thing | am trying
to do here, is take advantage of you. All! want you to do is answer my
questions to the best of your knowledge.
Do you understand that?
MR. RUSSELL: Then use her words and not your own.
MR. ANGEL: Go ahead.
(Record read.)
MR. RUSSELL: Same series of objections. Misstates her
easy completely. It is not what she said.” [Chiu-Yee Depo., 254:13 -
FACTUAL BACKGROUND
This case, as against defendant Cardinal, involves Cardinal's breach of contract
and negligence with reference to its obligations to perform funding controls concerning
advancement of construction loan money by the lender, United Commercial Bank
(“UCB”), to its borrower, pertaining to a commercial and condominium conversion
3
PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A'S IN SUPPORT OF ITS MOTION FOR ORDER
APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINALoon OD on FF WOW NH =
yO NM DB NY HB YB YP NY HY A= Be as sa ae oa oa ow a a
on oak WH A= DODO DAN DOD TD BW NY |= CO
project at 973 Market Street, San Francisco, California. At the recommendation of
Cardinal, UCB advanced in excess of $11,000,000.00 to the borrower. Ultimately, the
borrower defaulted on the loan. Thereafter, UCB assigned its rights to plaintiff.
Subsequent to the assignment, UCB went out of business. Cardinal has subpoenaed
prior employees of UCB, including the subject deponent, Ellen Chiu-Yee. The first day
of deposition of Ms. Yee was some six hours plus during which the whole time she was
deposed by Cardinal's attorney, Mark Russell, of the law firm of Gordon & Rees. At the
conclusion of the first day, all parties agreed to resume the deposition on May 29, 2012.
See Exhibit 1 to the accompanying Declaration of Gary A. Angel, a true and correct
copy of the May 29, 2012 deposition transcript of Ellen Chiu-Yee.
Upon the resumption of the deposition of Ms. Chiu-Yee, cross-examination of
Ms. Chiu-Yee was initiated by plaintiffs counsel, Gary A. Angel. The cross-examination
had not proceeded very far before Attorney Mark Russell launched into obstructive
behavior by making repetitive unnecessary and inappropriate objections, including
speaking objections, with the clear and sole intent of interrupting the discovery process
and abusing the discovery process. (Exhibit 1, 243:8-11; 244:20-24; 246_23-247:6;
and 248:3-12.) At some point to mitigate the disruptive nature of Mr. Russell’s repeated
objections, a stipulation was entered that he would have a “standing objection” (Exhibit
1, 248:12-16); however, within minutes of entering said stipulation, Mr. Russell
unilaterally revoked the stipulation (Exhibit 1, 249:15-17) and thereafter repeatedly
launched into repetitive and inappropriate objections (Exhibit 1, 249:23; 250:5; 250:10;
251:6-8; 251:17-18; 253:8; 253:21-22; 254:5-6; 254:13-256:17; 257:10-15; 258:1-8;
258:19-25; 259:6-12; 259:16-19; 260:10-16; 260:22-24; 261:4-8; 261:14-17; 261:20-24;
262:2-5; 262:8-12; and 262:19-24) which made the questioning of the witness laborious
and extremely difficult. Mr. Russell also made speaking objections which cast
aspersions upon and accused questioning counsel of being unfair to the witness, and
taking advantage of her lack of representation, thereby intentionally poisoning the
atmosphere between the deponent and questioning counsel, Mr. Angel.
4
PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A'S IN SUPPORT OF ITS MOTION FOR ORDER
APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINALoO oN DO oO FF WwW DY =
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“Q_ Right. Just so | understand it.
You don't want to be making loans on a project that is not
progressing consistent with the plans, right?
MR. RUSSELL: Objection. Vague. Misstates her testimony,
Counsel. Stop changing her testimony, Counsel. Argumentative.
BY MR. ANGEL:
Q Is that correct?
MR. RUSSELL: You are changing her words, Counsel.
MR. ANGEL: Make your objections appropriately, or we'll go —-
MR. RUSSELL: Don't take advantage of a witness that doesn't
have a counsel.
MR. ANGEL: Look, Counsel, we know what you're doing.
MR. RUSSELL: Don't play tricks. You accuse me of playing tricks.
MR. ANGEL: We know what you are going here --
MR. RUSSELL: | am just tell —-
MR. ANGEL: Hold on. You keep going like this --
MR. RUSSELL: | am accusing you of playing tricks.
MR. ANGEL: We are going to the commissioner, okay?
MR. RUSSELL: You can go to the commissioner.
MR. ANGEL: That's fine. | will. Let's get the question back.
MR. RUSSELL: | just want you to stop exploiting a non-counseled,
or a witness who is here, not represented by counsel.
BY MR. ANGEL:
to do here, is take! Sevantdoe oryoun a I want youtodo ee ower mn
questions to the best of your knowledge.
Do you understand that?
MR. RUSSELL: Then use her words and not your own.
MR. ANGEL: Go ahead.
(Record read.)
MR. RUSSELL: Same series of objections. Misstates her
5
PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A’S IN SUPPORT OF ITS MOTION FOR ORDER
APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINAL=
o ON DO oO FF WO ND
10
testimony completely. It is not what she said.
BY MR. ANGEL:
Q_ Go ahead.
A Ican't remember what | said previously.
Q That's fine. You can answer the question.
A If there is -- of course, if there is issues involved during construction,
we would stop the payments of disbursements to the borrower.
Q When you say "if there is issues involved," what sort of issues would
you expect your construction consultant to advise you of?
MR. RUSSELL: Objection. Misstate her testimony. She didn't say
the construction consultant would advise her of the issue.
BY MR. ANGEL:
Q_ Go ahead.
MR. RUSSELL: Once again, you are manipulating her testimony.”
[Chiu-Yee Depo., 254:17 - 256:17.]
tee
“Q_ And if it was only 70 percent built, you wouldn't expect him to so state
that it were 100 percent built, correct?
MR. RUSSELL: Same series of objections. Misstates her
srguing with the witness and badgenng er [Chiu Yee Depo. 262-19-
What is not completely apparent from the cold deposition transcript is the
confrontational nature and manner of defense counsel’s objections and its clear
apparent effect on confusing and bewildering the unrepresented witness.
il. ARGUMENT
A. APPOINTING A DISCOVERY REFEREE
The court has power to appoint a referee to supervise a deposition and a referee
may be ordered to hear and determine any and all discovery motions and dispute
relevant to discovery action and report findings and make recommendations thereon.
C.C.P. §639(a)(5), Kogani v. Koqani (2006) 941 Cal.App.4th 158, 176. As stated in
Weil & Brown, the appointment of a discovery referee is appropriate:
6
PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A'S IN SUPPORT OF ITS MOTION FOR ORDER
APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINALoon OW oO fF WOW DY =
yO NM NY NHB YB YB NB NY NY B@ Bo s@ Bw Ba Ba oe ws S& a
on oO a fF Ww NH |= CO GHG DB NDA FF Ww DY | CO
“Where either party anticipates that the other will try to frustrate legitimate
discovery at a deposition (e.g., numerous, frivolous objections, or evasive
answers), the referee’s presence can curtail such conduct.”
Weil & Brown, Civil Procedure Before Trial, 8:743.
Accordingly, plaintiff seeks a protective order directing that the remainder of Ms.
Chiu-Yee’s deposition proceed under the supervision of a referee.
B. FEES AND COSTS OF THE DISCOVERY REFEREE SHOULD
BE BORNE BY DEFENDANT CARDINAL CONSULTING, INC.
The court is empowered to order reasonable fees to be paid for a referee for
his/her services and ordered to pay in a manner the court deems just, including
apportionment among the parties. C.C.P. §645.1. Since defendant's counsel's
obstructionist conduct has necessitated the appointment of a referee, it is only fair and
proper that the burden of paying for the referee be imposed upon defendant. The
conduct of defendant's counsel is so egregious that it would be unfair and inequitable to
make plaintiff bear the burden and consequences of defense counsel’s wrongful
conduct.
c. ABUSE OF DISCOVERY SANCTIONS
Pursuant to C.C.P. §2025.420, plaintiff is entitled to a protective order that the
deposition be continued on the above specified terms and conditions and plaintiff is
entitled to monetary sanctions for having to make the subject motion. C.C.P.
§2025.420(d). The time for the making of the subject motion and anticipated time in
filing the reply and court appearance of counsel, which, per the accompanying
Declarations of Gary A. Angel and Frear Stephen Schmid, would be approximately six-
and-one-half (6-1/2) hours at their respective normal billing rate of $325.00 per hour. In
addition, plaintiff has incurred a filing fee of $40.00 and cost for the deposition transcript
in the amount of $166.25. Unquestionably, the conduct of counsel for defendant
Cardinal constitutes discovery abuse as set forth in C.C.P. §§2023.010, et. seq.,
specifically, by using discovery methods as to cause “unwarranted annoyance,
embarrassment, or oppression, undue burden and expense” and by “making, without
7
PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A'S IN SUPPORT OF ITS MOTION FOR ORDER
APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINAL=
oo ON OO fF WwW NY
substantial justification, an unmeritorious objection to discovery.” Thus, sanctions are
also warranted under C.C.P. §2023.030.
D. MEET AND CONFER
Plaintiff has met and conferred with Cardinal's counsel in an attempt to resolve
the matters tendered by this motion. See accompanying Declaration of Gary A. Angel,
page 2, Paragraph 7.
IV. CONCLUSION
The conduct of counsel for defendant Cardinal is simply inexcusable and could
have only one intent, and that was to make the subject discovery unduly expensive and
burdensome for plaintiff and to cause unwarranted annoyance and embarrassment to
plaintiff's counsel and in the process, tried to intimidate the witness into believing that
plaintiffs counsel was somehow acting inappropriately with reference to his
questioning. Defendant's counsel simply went way beyond the limits of reasonable
deposition conduct, and entered into the area of abuse of discovery conduct.
Accordingly, the appointment of a discovery referee is appropriate for the continued
deposition of Ms. Chiu-Yee, and further, sanctions should be imposed on defendant
and/or defendant's counsel pursuant to C.C.P. §2025.420(d) as there is no substantial
justification for the conduct of defense counsel and the requested protective order
herein is appropriate. Further, sanctions should be awarded pursuant to C.C.P.
§§2023.010 and 2023.030 due to defendant and defendant's counsel's discovery
abuse. Accordingly, sanctions in the amount of $2,318.75 should be awarded,
consisting of attorneys’ fees ($2,112.50), filing fees ($40.00), and the necessary
deposition transcript costs of $166.25.
Dated: June 20, 2012 Respectfully submitted,
‘orneys for
Plaintiff and ‘Cross-Defendant
PERFORMING ARTS, LLC
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PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A'S IN SUPPORT OF ITS MOTION FOR ORDER
APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINALoO ON ODO nO FF Ww NY =
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@
Performing Arts, LLC v. Killarney Construction Co., Inc., et al.
PROOF OF SERVICE
| declare that:
|_am over the age of 18 and not a party to the within action; my business address
is 177 Post Street, Suite 890, San Francisco, California, 94108.
On June 20, 2012, | served the following document(s):
1. PLAINTIFF PERFORMING ARTS, LLC'S NOTICE OF MOTION AND
MOTION FOR PROTECTIVE ORDER AND APPOINTMENT OF
DISCOVERY REFEREE AND REQUEST FOR SANCTIONS FOR
DISCOVERY ABUSE AGAINST DEFENDANT CARDINAL
CONSULTING, INC. AND ITS ATTORNEYS OF RECORD AND
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
2. DECLARATION OF FREAR STEPHEN SCHMID IN SUPPORT OF
PLAINTIFF PERFORMING ARTS, LLC'S MOTION FOR PROTECTIVE
ORDER AND APPOINTMENT OF DISCOVERY REFEREE AND
REQUEST FOR SANCTIONS FOR DISCOVERY ABUSE AGAINST
DEFENDANT CARDINAL CONSULTING, INC. AND ITS ATTORNEYS
OF RECORD;
4. DECLARATION OF GARY A. ANGEL IN SUPPORT OF PLAINTIFF
PERFORMING ARTS, LLC'S MOTION FOR PROTECTIVE ORDER AND
APPOINTMENT OF DISCOVERY REFEREE AND REQUEST FOR
SANCTIONS FOR DISCOVERY ABUSE AGAINST DEFENDANT
CARDINAL CONSULTING, INC. AND ITS ATTORNEYS OF RECORD;
ani
5. [PROPOSED] ORDER GRANTING PLAINTIFF PERFORMING ARTS,
LLC'S MOTION FOR PROTECTIVE ORDER AND APPOINTMENT OF
DISCOVERY REFEREE AND REQUEST FOR SANCTIONS FOR
DISCOVERY ABUSE AGAINST DEFENDANT CARDINAL
CONSULTING, INC. AND ITS ATTORNEYS OF RECORD
on the parties in said action, by placing true copies thereof in sealed envelopes
addressed as shown below for service as designated below:
/X/ By First Class Mail - | caused each such envelope, with first-class postage
thereon fly prepaid, to be deposited in the United States mail at San Francisco,
alifornia.
/_/ By Hand Delivery - | caused each such envelope, to be hand delivered to said
address(es).
// ByFacsimile - By transmitting a facsimile copy of the above document(s) to the
following addressee(s) at the following facsimile number(s):
Ml
Mlo ON OO oO FF WwW NY =
NN NO NY NY NY NY YH HN AB aa we oa wow a a a a
oN Oa FF WH A DOG DAN DN KR WHY |= OC
Addressee(s):
Suzanne M. Martin, Esq. Email: martin@Ibbslaw.com
Jonathan G. Kepko, Esq. Email: kepko@Ibbslaw.com
LEWIS BRISBOIS BISGAARD & SMITH, LLP
One Sansome Street, Suite 1400
San Francisco, CA 94104
Tel: 415-362-2580 Fax: 415-434-0882
[Attorneys for Defendants and Cross-Defendants CULLINANE CONSTRUCTION; AL NORMAN
MECHANICAL, INC.; ASPEN INSURANCE UK, LTD Intervenor on behalf of Defendant and Cross-Defendant
KILLARNEY CONSTRUCTION CO., INC.]
Jordan A. Sussman, Esq. Email: Jordan.Sussman.Law@gmail.com
ZIEF DIMENT & GLICKMAN
109 Geary Street, 4" Floor
San Francisco, CA 94108
Tel: 415-986-3644 Fax: 415-982-5130
[Attorneys for ASPEN INSURANCE UK, LTD, Intervenor on behalf of Defendant KILLARNEY
CONSTRUCTION CO., INC.]
Todd B. Gary, Esq. Email: tgary@thegarylawfirm.com
THE GARY LAW FIRM
950 Risa Road, Second Floor
Lafayette, CA 94549
Tel: 925-831-1155 Fax: 925-831-1188
[Attorneys for Defendant and Cross-Defendant CULLINANE CONSTRUCTION]
Dion N. Cominos, Esq. Email: Dcominos@gordonreese.com
Mark C. Russell, Esq. Email: Mrusseli@:gordonrees. com
Olivia J. Bradbury, Esq. Email: Obradbury@gordonrees.com
GORDON & REES LLP
Embarcadero Center West
275 Battery Street, Suite 2000
San Francisco, CA 94111
Tel.: 415-986-5900 Fax: 415-986-8054
[Attorneys for Defendant and Cross-Defendant CARDINAL CONSULTING, INC.]
Paul Manasian, Esq. Email: manasian@mrlawsf.com
Coque K. Dion, Esq. Email: dion@mrlawsf.com
MANASIAN & ROUGEAU, LLP
400 Montgomery Street, Suite 1000
San Francisco, CA 94104
Tel: 415-291-8425, ext. 4 Fax: 415-291-8426
[Attorneys for Defendants MICHAEL MURRAY and MID-MARKET DEVELOPMENT CO., INC.]
John G. Dooling, Esq. Email: jdooling@rmkb.com
Devin C. Courteau, Esq. Email: dcourteau@rmkb.com
ROPERS MAJESKI KOHN BENTLEY
201 Spear Street, Suite 1000
San Francisco, CA 94105-1667
Tel: 415-543-4800 Fax: 415-972-6301
[Attorneys for Defendant and X-Complainant CONSTRUCTION TESTING SERVICES, INC.]oO ON DO oO FF WY =
YN DM NY NY YS NY YB NY NY BSB Be we Bo Bo wm Ba an a a
on OW ao FW NHN BA OD OG AN DOD TD BF WHS |= OO
Jeffrey H. Lowenthal, Esq.
STEYER LOWENTHAL BOODROOKAS
ALVAREZ & SMITH LLP
One California Street, Third Floor
San Francisco, CA 94111
Email: jlowenthal@steyerlaw.com
Tel: 415-421-3400 Fax: 415-421-2234
[Attorneys for Plaintiff PERFORMING ARTS, LLC]
Richard K. Bauman, Esq. Email: rbauman@att.net
LAW OFFICES OF RICHARD K. BAUMAN
220 Montgomery Street, Suite 1500
San Francisco, CA 94104
Tel: 415-982-5230 Fax: 415-397-1577
[Attorneys for Cross-Defendant and Cross-Complainant SANTOS & URRUTIA ASSOCIATES, INC.]
Bruce N. Furukawa, Esq. Email: bnf@severson.com
Yevgenia Altman, Esq. Email: ya@severson.com
SEVERSON & WERSON
One Embarcadero Center, Suite 2600
San Francisco, CA 94111
Tel: 415-398-3344 Fax: 415-956-0439
[Attorneys for Cross-Defendant KERMAN MORRIS ARCHITECTS, LLP]
Heidi C. Quan, Esq. Email: hquan@murchisonlaw.com
MURCHISON & CUMMING, LLP
275 Battery Street, Suite 550
San Francisco, CA 94111
Tel: 415-524-4303 Fax: 415-391-2058
[Attorneys for Cross-Defendant BODE CONCRETE LLC (sued herein as DOE 10)]
Karren L. Freedman, Esq. Email: kifreedm@travelers.com
JOSEPH COSTELLA & ASSOCIATES
215 Lennon Lane, Suite 200
Wainut Creek, CA 94598
Tel: 925-945-4491 Fax: 925-746-3916
{Attorneys for Cross-Defendant BODE CONCRETE LLC (sued herein as DOE 10)]
| declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and that this declaration was executed on June 20,
2012, at San Francisco, California. —
Cc
‘ose Chan
Preview
IVICA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jun-25-2012 10:31 am Case Number: CGC-10-498405 Filing Date: Jun-21-2012 10:29 Filed by: WESLEY G. RAMIREZ Juke Box: 001 Image: 03663759 MOTION (CIVIL GENERIC) PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al 001003663759 Instructions: Please place this sheet on top of the document to be scanned.o ON OW TO FF W NY = 10 Sai - GARY A. ANGEL, CSB No. 70006 in Francisco fF FREAR STEPHEN SCHMID, CSB No. 96089 JUN LAW OFFICES OF GARY A. ANGEL 21 2012 177 POST STREET, EIGHTH FLOOR SAN FRANCISCO, CA 94108 CLERK TELEPHONE: (415) 788-5935 By: FACSIMILE: (415) 788-5958 JEFFREY H. LOWENTHAL, CSB No.111763 STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP ONE CALIFORNIA STREET, THIRD FLOOR SAN FRANCISCO, CA 94111 TELEPHONE: (415) 421-3400 FACSIMILE: (415) 421-2234 Attorneys for Plaintiff and Cross-Defendant PERFORMING ARTS, LLC SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PERFORMING ARTS, LLC, a Delaware No. CGC-10-498405 limited liability company, [Discovery] Plaintiff, PLAINTIFF PERFORMING ARTS, LLC’S NOTICE OF MOTION AND v. MOTION FOR PROTECTIVE ORDER AND APPOINTMENT OF DISCOVERY KILLARNEY CONSTRUCTION CO., REFEREE AND REQUEST FOR INC., MID-MARKET DEVELOPMENT SANCTIONS FOR DISCOVERY CO., INC., CARDINAL CONSULTING, ABUSE AGAINST DEFENDANT INC., CULLINANE CONSTRUCTION, CARDINAL CONSULTING, INC. AND AL NORMAN MECHANICAL, INC., ITS ATTORNEYS OF RECORD AND MICHAEL MURRAY, and DOES 1 MEMORANDUM OF POINTS AND THROUGH 200, inclusive, AUTHORITIES IN SUPPORT THEREOF Defendants. / Date: July 20, 2012 Time: 9:00 AM AND RELATED CROSS-ACTIONS. Dept: 302 / Honorable Harold E. Kahn TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on July 20, 2012, at 9:00 AM, in Department 302, of the above-entitled court, plaintiff PERFORMING ARTS, LLC does hereby and will move for an order appointing a discovery referee, the cost to be borne by defendant 4 PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A'S IN SUPPORT OF ITS MOTION FOR ORDER APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINAL.o ON Oa F&F Ww DY = NH NY NY NSN NY YN YN AB BW a a ae sa ow a a a oaoN ODA F WH A FD OG DN DA FW HY = CO CARDINAL CONSULTING, INC. (“Cardinal”) and/or its attorneys of record Gordon & Rees, LLP to supervise the continued deposition of Ellen Chiu Yee and for an order imposing sanctions upon defendant Cardinal and/or its counsel Gordon & Rees for its abuse of discovery process and for the costs of bringing this motion to be awarded to plaintiff in the amount of $2,318.75. This motion will be made pursuant to this notice of motion and motion, the memorandum of points and authorities below and the accompanying declarations of Frear Stephen Schmid and Gary A. Angel in support hereof, and such other matters and court may properly consider. Dated: June 20, 2012 Respectfully submitted, LAW OFFICES OF GARY A. ANGEL Frear Stephen Schmid, Attorneys for Plaintiff and Cross-Defendant PERFORMING ARTS, LLC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION I RELIEF SOUGHT Plaintiff PERFORMING ARTS, LLC seeks the appointment of a referee to oversee the conclusion of the deposition of a subpoenaed witness, Ms. Ellen Chiu-Yee, and the imposition of sanctions against defendant CARDINAL CONSULTING, INC. (“Cardinal”) and/or its attorneys Gordon & Rees, LLP for discovery abuse due to its repeated unfounded and speaking objections, including disparaging comments directed at plaintiff's counsel, at the deposition of Ms. Chiu-Yee, for example: “Q Right. Just so | understand it. You don't want to be making loans on a project that is not progressing consistent with the plans, right? MR. RUSSELL: Objection. Vague. Misstates her testimony, Counsel. Stop changing her testimony, Counsel. Argumentative. BY MR. ANGEL: Q_ Is that correct? 2 PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A’S IN SUPPORT OF ITS MOTION FOR ORDER APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINAL= oon oO ak WO NY 10 MR. RUSSELL: You are changing her words, Counsel. MR. ANGEL: Make your objections appropriately, or we'll go -- MR. RUSSELL: Don't take advantage of a witness that doesn't have a counsel. MR. ANGEL: Look, Counsel, we know what you're doing. MR. RUSSELL: Don't play tricks. You accuse me of playing tricks. MR. ANGEL: We know what you are going here -- MR. RUSSELL: | am just tell -- MR. ANGEL: Hold on. You keep going like this -- MR. RUSSELL: | am accusing you of playing tricks. MR. ANGEL: We are going to the commissioner, okay? MR. RUSSELL: You can go to the commissioner. MR. ANGEL: That's fine. | will. Let's get the question back. MR. RUSSELL: | just want you to stop exploiting a non-counseled, or a witness who is here, not represented by counsel. BY MR. ANGEL: Q_ Let me just tell you something, Ellen. The last thing | am trying to do here, is take advantage of you. All! want you to do is answer my questions to the best of your knowledge. Do you understand that? MR. RUSSELL: Then use her words and not your own. MR. ANGEL: Go ahead. (Record read.) MR. RUSSELL: Same series of objections. Misstates her easy completely. It is not what she said.” [Chiu-Yee Depo., 254:13 - FACTUAL BACKGROUND This case, as against defendant Cardinal, involves Cardinal's breach of contract and negligence with reference to its obligations to perform funding controls concerning advancement of construction loan money by the lender, United Commercial Bank (“UCB”), to its borrower, pertaining to a commercial and condominium conversion 3 PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A'S IN SUPPORT OF ITS MOTION FOR ORDER APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINALoon OD on FF WOW NH = yO NM DB NY HB YB YP NY HY A= Be as sa ae oa oa ow a a on oak WH A= DODO DAN DOD TD BW NY |= CO project at 973 Market Street, San Francisco, California. At the recommendation of Cardinal, UCB advanced in excess of $11,000,000.00 to the borrower. Ultimately, the borrower defaulted on the loan. Thereafter, UCB assigned its rights to plaintiff. Subsequent to the assignment, UCB went out of business. Cardinal has subpoenaed prior employees of UCB, including the subject deponent, Ellen Chiu-Yee. The first day of deposition of Ms. Yee was some six hours plus during which the whole time she was deposed by Cardinal's attorney, Mark Russell, of the law firm of Gordon & Rees. At the conclusion of the first day, all parties agreed to resume the deposition on May 29, 2012. See Exhibit 1 to the accompanying Declaration of Gary A. Angel, a true and correct copy of the May 29, 2012 deposition transcript of Ellen Chiu-Yee. Upon the resumption of the deposition of Ms. Chiu-Yee, cross-examination of Ms. Chiu-Yee was initiated by plaintiffs counsel, Gary A. Angel. The cross-examination had not proceeded very far before Attorney Mark Russell launched into obstructive behavior by making repetitive unnecessary and inappropriate objections, including speaking objections, with the clear and sole intent of interrupting the discovery process and abusing the discovery process. (Exhibit 1, 243:8-11; 244:20-24; 246_23-247:6; and 248:3-12.) At some point to mitigate the disruptive nature of Mr. Russell’s repeated objections, a stipulation was entered that he would have a “standing objection” (Exhibit 1, 248:12-16); however, within minutes of entering said stipulation, Mr. Russell unilaterally revoked the stipulation (Exhibit 1, 249:15-17) and thereafter repeatedly launched into repetitive and inappropriate objections (Exhibit 1, 249:23; 250:5; 250:10; 251:6-8; 251:17-18; 253:8; 253:21-22; 254:5-6; 254:13-256:17; 257:10-15; 258:1-8; 258:19-25; 259:6-12; 259:16-19; 260:10-16; 260:22-24; 261:4-8; 261:14-17; 261:20-24; 262:2-5; 262:8-12; and 262:19-24) which made the questioning of the witness laborious and extremely difficult. Mr. Russell also made speaking objections which cast aspersions upon and accused questioning counsel of being unfair to the witness, and taking advantage of her lack of representation, thereby intentionally poisoning the atmosphere between the deponent and questioning counsel, Mr. Angel. 4 PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A'S IN SUPPORT OF ITS MOTION FOR ORDER APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINALoO oN DO oO FF WwW DY = 10 “Q_ Right. Just so | understand it. You don't want to be making loans on a project that is not progressing consistent with the plans, right? MR. RUSSELL: Objection. Vague. Misstates her testimony, Counsel. Stop changing her testimony, Counsel. Argumentative. BY MR. ANGEL: Q Is that correct? MR. RUSSELL: You are changing her words, Counsel. MR. ANGEL: Make your objections appropriately, or we'll go —- MR. RUSSELL: Don't take advantage of a witness that doesn't have a counsel. MR. ANGEL: Look, Counsel, we know what you're doing. MR. RUSSELL: Don't play tricks. You accuse me of playing tricks. MR. ANGEL: We know what you are going here -- MR. RUSSELL: | am just tell —- MR. ANGEL: Hold on. You keep going like this -- MR. RUSSELL: | am accusing you of playing tricks. MR. ANGEL: We are going to the commissioner, okay? MR. RUSSELL: You can go to the commissioner. MR. ANGEL: That's fine. | will. Let's get the question back. MR. RUSSELL: | just want you to stop exploiting a non-counseled, or a witness who is here, not represented by counsel. BY MR. ANGEL: to do here, is take! Sevantdoe oryoun a I want youtodo ee ower mn questions to the best of your knowledge. Do you understand that? MR. RUSSELL: Then use her words and not your own. MR. ANGEL: Go ahead. (Record read.) MR. RUSSELL: Same series of objections. Misstates her 5 PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A’S IN SUPPORT OF ITS MOTION FOR ORDER APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINAL= o ON DO oO FF WO ND 10 testimony completely. It is not what she said. BY MR. ANGEL: Q_ Go ahead. A Ican't remember what | said previously. Q That's fine. You can answer the question. A If there is -- of course, if there is issues involved during construction, we would stop the payments of disbursements to the borrower. Q When you say "if there is issues involved," what sort of issues would you expect your construction consultant to advise you of? MR. RUSSELL: Objection. Misstate her testimony. She didn't say the construction consultant would advise her of the issue. BY MR. ANGEL: Q_ Go ahead. MR. RUSSELL: Once again, you are manipulating her testimony.” [Chiu-Yee Depo., 254:17 - 256:17.] tee “Q_ And if it was only 70 percent built, you wouldn't expect him to so state that it were 100 percent built, correct? MR. RUSSELL: Same series of objections. Misstates her srguing with the witness and badgenng er [Chiu Yee Depo. 262-19- What is not completely apparent from the cold deposition transcript is the confrontational nature and manner of defense counsel’s objections and its clear apparent effect on confusing and bewildering the unrepresented witness. il. ARGUMENT A. APPOINTING A DISCOVERY REFEREE The court has power to appoint a referee to supervise a deposition and a referee may be ordered to hear and determine any and all discovery motions and dispute relevant to discovery action and report findings and make recommendations thereon. C.C.P. §639(a)(5), Kogani v. Koqani (2006) 941 Cal.App.4th 158, 176. As stated in Weil & Brown, the appointment of a discovery referee is appropriate: 6 PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A'S IN SUPPORT OF ITS MOTION FOR ORDER APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINALoon OW oO fF WOW DY = yO NM NY NHB YB YB NB NY NY B@ Bo s@ Bw Ba Ba oe ws S& a on oO a fF Ww NH |= CO GHG DB NDA FF Ww DY | CO “Where either party anticipates that the other will try to frustrate legitimate discovery at a deposition (e.g., numerous, frivolous objections, or evasive answers), the referee’s presence can curtail such conduct.” Weil & Brown, Civil Procedure Before Trial, 8:743. Accordingly, plaintiff seeks a protective order directing that the remainder of Ms. Chiu-Yee’s deposition proceed under the supervision of a referee. B. FEES AND COSTS OF THE DISCOVERY REFEREE SHOULD BE BORNE BY DEFENDANT CARDINAL CONSULTING, INC. The court is empowered to order reasonable fees to be paid for a referee for his/her services and ordered to pay in a manner the court deems just, including apportionment among the parties. C.C.P. §645.1. Since defendant's counsel's obstructionist conduct has necessitated the appointment of a referee, it is only fair and proper that the burden of paying for the referee be imposed upon defendant. The conduct of defendant's counsel is so egregious that it would be unfair and inequitable to make plaintiff bear the burden and consequences of defense counsel’s wrongful conduct. c. ABUSE OF DISCOVERY SANCTIONS Pursuant to C.C.P. §2025.420, plaintiff is entitled to a protective order that the deposition be continued on the above specified terms and conditions and plaintiff is entitled to monetary sanctions for having to make the subject motion. C.C.P. §2025.420(d). The time for the making of the subject motion and anticipated time in filing the reply and court appearance of counsel, which, per the accompanying Declarations of Gary A. Angel and Frear Stephen Schmid, would be approximately six- and-one-half (6-1/2) hours at their respective normal billing rate of $325.00 per hour. In addition, plaintiff has incurred a filing fee of $40.00 and cost for the deposition transcript in the amount of $166.25. Unquestionably, the conduct of counsel for defendant Cardinal constitutes discovery abuse as set forth in C.C.P. §§2023.010, et. seq., specifically, by using discovery methods as to cause “unwarranted annoyance, embarrassment, or oppression, undue burden and expense” and by “making, without 7 PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A'S IN SUPPORT OF ITS MOTION FOR ORDER APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINAL= oo ON OO fF WwW NY substantial justification, an unmeritorious objection to discovery.” Thus, sanctions are also warranted under C.C.P. §2023.030. D. MEET AND CONFER Plaintiff has met and conferred with Cardinal's counsel in an attempt to resolve the matters tendered by this motion. See accompanying Declaration of Gary A. Angel, page 2, Paragraph 7. IV. CONCLUSION The conduct of counsel for defendant Cardinal is simply inexcusable and could have only one intent, and that was to make the subject discovery unduly expensive and burdensome for plaintiff and to cause unwarranted annoyance and embarrassment to plaintiff's counsel and in the process, tried to intimidate the witness into believing that plaintiffs counsel was somehow acting inappropriately with reference to his questioning. Defendant's counsel simply went way beyond the limits of reasonable deposition conduct, and entered into the area of abuse of discovery conduct. Accordingly, the appointment of a discovery referee is appropriate for the continued deposition of Ms. Chiu-Yee, and further, sanctions should be imposed on defendant and/or defendant's counsel pursuant to C.C.P. §2025.420(d) as there is no substantial justification for the conduct of defense counsel and the requested protective order herein is appropriate. Further, sanctions should be awarded pursuant to C.C.P. §§2023.010 and 2023.030 due to defendant and defendant's counsel's discovery abuse. Accordingly, sanctions in the amount of $2,318.75 should be awarded, consisting of attorneys’ fees ($2,112.50), filing fees ($40.00), and the necessary deposition transcript costs of $166.25. Dated: June 20, 2012 Respectfully submitted, ‘orneys for Plaintiff and ‘Cross-Defendant PERFORMING ARTS, LLC 8 PLAINTIFF'S NOTICE OF MOTION AND MEMO OF 0'S & A'S IN SUPPORT OF ITS MOTION FOR ORDER APPOINTING DISCOVERY REFEREE AND REQUEST FOR SANCTIONS AGAINST DEF. CARDINALoO ON ODO nO FF Ww NY = 10 a @ Performing Arts, LLC v. Killarney Construction Co., Inc., et al. PROOF OF SERVICE | declare that: |_am over the age of 18 and not a party to the within action; my business address is 177 Post Street, Suite 890, San Francisco, California, 94108. On June 20, 2012, | served the following document(s): 1. PLAINTIFF PERFORMING ARTS, LLC'S NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER AND APPOINTMENT OF DISCOVERY REFEREE AND REQUEST FOR SANCTIONS FOR DISCOVERY ABUSE AGAINST DEFENDANT CARDINAL CONSULTING, INC. AND ITS ATTORNEYS OF RECORD AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 2. DECLARATION OF FREAR STEPHEN SCHMID IN SUPPORT OF PLAINTIFF PERFORMING ARTS, LLC'S MOTION FOR PROTECTIVE ORDER AND APPOINTMENT OF DISCOVERY REFEREE AND REQUEST FOR SANCTIONS FOR DISCOVERY ABUSE AGAINST DEFENDANT CARDINAL CONSULTING, INC. AND ITS ATTORNEYS OF RECORD; 4. DECLARATION OF GARY A. ANGEL IN SUPPORT OF PLAINTIFF PERFORMING ARTS, LLC'S MOTION FOR PROTECTIVE ORDER AND APPOINTMENT OF DISCOVERY REFEREE AND REQUEST FOR SANCTIONS FOR DISCOVERY ABUSE AGAINST DEFENDANT CARDINAL CONSULTING, INC. AND ITS ATTORNEYS OF RECORD; ani 5. [PROPOSED] ORDER GRANTING PLAINTIFF PERFORMING ARTS, LLC'S MOTION FOR PROTECTIVE ORDER AND APPOINTMENT OF DISCOVERY REFEREE AND REQUEST FOR SANCTIONS FOR DISCOVERY ABUSE AGAINST DEFENDANT CARDINAL CONSULTING, INC. AND ITS ATTORNEYS OF RECORD on the parties in said action, by placing true copies thereof in sealed envelopes addressed as shown below for service as designated below: /X/ By First Class Mail - | caused each such envelope, with first-class postage thereon fly prepaid, to be deposited in the United States mail at San Francisco, alifornia. /_/ By Hand Delivery - | caused each such envelope, to be hand delivered to said address(es). // ByFacsimile - By transmitting a facsimile copy of the above document(s) to the following addressee(s) at the following facsimile number(s): Ml Mlo ON OO oO FF WwW NY = NN NO NY NY NY NY YH HN AB aa we oa wow a a a a oN Oa FF WH A DOG DAN DN KR WHY |= OC Addressee(s): Suzanne M. Martin, Esq. Email: martin@Ibbslaw.com Jonathan G. Kepko, Esq. Email: kepko@Ibbslaw.com LEWIS BRISBOIS BISGAARD & SMITH, LLP One Sansome Street, Suite 1400 San Francisco, CA 94104 Tel: 415-362-2580 Fax: 415-434-0882 [Attorneys for Defendants and Cross-Defendants CULLINANE CONSTRUCTION; AL NORMAN MECHANICAL, INC.; ASPEN INSURANCE UK, LTD Intervenor on behalf of Defendant and Cross-Defendant KILLARNEY CONSTRUCTION CO., INC.] Jordan A. Sussman, Esq. Email: Jordan.Sussman.Law@gmail.com ZIEF DIMENT & GLICKMAN 109 Geary Street, 4" Floor San Francisco, CA 94108 Tel: 415-986-3644 Fax: 415-982-5130 [Attorneys for ASPEN INSURANCE UK, LTD, Intervenor on behalf of Defendant KILLARNEY CONSTRUCTION CO., INC.] Todd B. Gary, Esq. Email: tgary@thegarylawfirm.com THE GARY LAW FIRM 950 Risa Road, Second Floor Lafayette, CA 94549 Tel: 925-831-1155 Fax: 925-831-1188 [Attorneys for Defendant and Cross-Defendant CULLINANE CONSTRUCTION] Dion N. Cominos, Esq. Email: Dcominos@gordonreese.com Mark C. Russell, Esq. Email: Mrusseli@:gordonrees. com Olivia J. Bradbury, Esq. Email: Obradbury@gordonrees.com GORDON & REES LLP Embarcadero Center West 275 Battery Street, Suite 2000 San Francisco, CA 94111 Tel.: 415-986-5900 Fax: 415-986-8054 [Attorneys for Defendant and Cross-Defendant CARDINAL CONSULTING, INC.] Paul Manasian, Esq. Email: manasian@mrlawsf.com Coque K. Dion, Esq. Email: dion@mrlawsf.com MANASIAN & ROUGEAU, LLP 400 Montgomery Street, Suite 1000 San Francisco, CA 94104 Tel: 415-291-8425, ext. 4 Fax: 415-291-8426 [Attorneys for Defendants MICHAEL MURRAY and MID-MARKET DEVELOPMENT CO., INC.] John G. Dooling, Esq. Email: jdooling@rmkb.com Devin C. Courteau, Esq. Email: dcourteau@rmkb.com ROPERS MAJESKI KOHN BENTLEY 201 Spear Street, Suite 1000 San Francisco, CA 94105-1667 Tel: 415-543-4800 Fax: 415-972-6301 [Attorneys for Defendant and X-Complainant CONSTRUCTION TESTING SERVICES, INC.]oO ON DO oO FF WY = YN DM NY NY YS NY YB NY NY BSB Be we Bo Bo wm Ba an a a on OW ao FW NHN BA OD OG AN DOD TD BF WHS |= OO Jeffrey H. Lowenthal, Esq. STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP One California Street, Third Floor San Francisco, CA 94111 Email: jlowenthal@steyerlaw.com Tel: 415-421-3400 Fax: 415-421-2234 [Attorneys for Plaintiff PERFORMING ARTS, LLC] Richard K. Bauman, Esq. Email: rbauman@att.net LAW OFFICES OF RICHARD K. BAUMAN 220 Montgomery Street, Suite 1500 San Francisco, CA 94104 Tel: 415-982-5230 Fax: 415-397-1577 [Attorneys for Cross-Defendant and Cross-Complainant SANTOS & URRUTIA ASSOCIATES, INC.] Bruce N. Furukawa, Esq. Email: bnf@severson.com Yevgenia Altman, Esq. Email: ya@severson.com SEVERSON & WERSON One Embarcadero Center, Suite 2600 San Francisco, CA 94111 Tel: 415-398-3344 Fax: 415-956-0439 [Attorneys for Cross-Defendant KERMAN MORRIS ARCHITECTS, LLP] Heidi C. Quan, Esq. Email: hquan@murchisonlaw.com MURCHISON & CUMMING, LLP 275 Battery Street, Suite 550 San Francisco, CA 94111 Tel: 415-524-4303 Fax: 415-391-2058 [Attorneys for Cross-Defendant BODE CONCRETE LLC (sued herein as DOE 10)] Karren L. Freedman, Esq. Email: kifreedm@travelers.com JOSEPH COSTELLA & ASSOCIATES 215 Lennon Lane, Suite 200 Wainut Creek, CA 94598 Tel: 925-945-4491 Fax: 925-746-3916 {Attorneys for Cross-Defendant BODE CONCRETE LLC (sued herein as DOE 10)] | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on June 20, 2012, at San Francisco, California. — Cc ‘ose Chan