Preview
1 Stacy M. Tucker (SBN 218942)
smtucker@mtlawpc.com
2 MONAHAN TUCKER LAW, PC
14241 NE Woodinville-Duvall Road
3
Suite 382
4 Woodinville, WA 98072
T: (206) 486-3553
5 F: (206) 339-7155
6 Glenn R. Kantor (SBN 122643)
gkantor@kantorlaw.net
7
KANTOR & KANTOR, LLP
8 19839 Nordhoff Street
Northridge, CA 91324
9 T: (818) 886-2525
F: (818) 350-6272
10
11 Attorneys for Plaintiff Gary Koop
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14241 NE Woodinville-Duvall Road, Suite 382
13 COUNTY OF SONOMA
MONAHAN TUCKER LAW, P.C.
Woodinville, WA 98072
14
(866) 823-8275
GARY KOOP, Case No.: SCV-266944
15 Plaintiff, [Honorable Oscar Pardo – Dept. 19]
16 v.
PLAINTIFF GARY KOOP’S
17 OBJECTIONS TO EVIDENCE
FIRE INSURANCE EXCHANGE, dba
18 FARMERS INSURANCE GROUP; BRIAN SUBMITTED IN OPPOSITION TO
HUNSAKER, DEFENDANT BRIAN HUNSAKER’S
19 MOTION FOR SUMMARY JUDGMENT
Defendants.
OR ADJUDICATION
20
21
22
Action Filed: August 24, 2020
23 Trial Date: November 17, 2023
24
25
26
27
28
1
PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF
BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT
1 Pursuant to California Rules of Court, rules 3.1352 and 3.1354, Plaintiff Gary Koop
2 (“Plaintiff”) hereby submit its objections to the evidence submitted by Defendant Brian Hunsaker
3 (“Hunsaker” or “Defendant”) in opposition to Plaintiff’s motion for summary judgement or,
4 alternatively, summary adjudication:
5
6 I. DECLARATION OF JOHN MACHIN, JR.
7 A. STATEMENT:
8 The entire declaration is inadmissible.
9
OBJECTIONS:
10
(a) Defendant Hunsaker was served with an expert disclosure demand on
11 December 14, 2022. (See Declaration of Stacy Monahan Tucker, Ex. 1.) Defendant
has never responded to that demand. (Id. ¶ 3.) Pursuant to California law, no expert
12 witness may provide testimony to support a motion for summary judgment if not
14241 NE Woodinville-Duvall Road, Suite 382
disclosed after receipt of a demand to disclose expert witnesses and testimony.
13
MONAHAN TUCKER LAW, P.C.
(C.C.P. § 2034(j)(1); Cal. Code Civ. Proc §437(c); Perry v. Bakewell Hawthorne,
Woodinville, WA 98072
14 LLC, 2 Cal. 5th 536, 541 (2017)
(866) 823-8275
15
16 COURTS RULING: SUSTAINED:
17 OVERRULED:
18
19 B. STATEMENT:
20
Paragraph 3: In the course of this litigation, I have visited the property that was built after
21 the fire and reviewed evidence concerning the pre-existing structure and property characteristics.
22
OBJECTIONS:
23
(a) The assertion lacks foundation. No such alleged “evidence” was cited or
24 attached to Mr. Machin’s declaration. (Evd. Code § 403.)
25
26
COURTS RULING: SUSTAINED:
27
OVERRULED:
28
2
PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF
BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT
1 C. STATEMENT:
2 Paragraph 3: It is my opinion that the alleged total amount of $3,378,568.10 that Plaintiff
claims is required to rebuild Plaintiff’s property after the subject fire is substantially in excess of
3 what would be required to rebuild a house of the same size, with same characteristics and in the
4 same location on Koop’s property. See Koop Decl.¶ 13, Exhibit A.
5
OBJECTIONS:
6
(a) Where Mr. Machin fails to cite any evidence whatsoever to support his
7 opinion, his statement constitutes improper opinion testimony. (Cal. Evid. Code §§
720, 800-803; Greshko v. County of Los Angeles, 194 Cal. App. 3d 822, 834 (1987)
8 ("Affidavits or declarations setting forth only conclusions, opinions or ultimate facts
9 are held insufficient; even an expert's opinion cannot rise to the dignity of substantial
evidence if it is unsubstantiated by facts"); Reida v. Lund, 18 Cal. App. 3d 698, 702
10 (1971) (finding diagnosis and conclusions arrived at from depositions, newspaper
reports, and a distrust for the other side's contrary declarations "lacks even a
11 modicum of evidentiary value, for it amounts to no more than the psychologist's
personal and unsupported expression of disbelief in the testimony of another").)
12
14241 NE Woodinville-Duvall Road, Suite 382
13 (b) Where Mr. Machin fails to cite any evidence whatsoever to support his
MONAHAN TUCKER LAW, P.C.
opinion, his statement constitutes inadmissible speculation and conclusions (Cal.
Woodinville, WA 98072
14 Evid. Code §§ 400, 403, 410; Los Angeles County Office of the Dist. Attorney v. Civil
(866) 823-8275
Serv. Comm'n of County of Los Angeles, 55 Cal. App. 4th 187, 201-202 (1997)
15 ("Rather than offer evidence showing [the fact sought to be proved, the party] merely
insinuated [motives for the fact.] Such testimony is mere speculation not supported
16 by any evidence"); Trujillo v. First Am. Registry, Inc., 157 Cal. App. 4th 628, 635
17 (2008) ("opposition to summary judgment will be deemed insufficient when it is
essentially conclusionary, argumentative or based on conjecture and speculation").)
18
COURTS RULING: SUSTAINED:
19
OVERRULED:
20
21
D. STATEMENT:
22
The changes to the location of the house on the lot, the changes to the size and design of the
23
house, and the changes to the attributes of the new home were very different from the previous
24 structure in place and necessitated additional construction expense.
25
OBJECTIONS:
26
(a) Mr. Machin’s statement lacks foundation (Cal. Evid. Code §§ 702(a), 800.)
27
(b)
Where Mr. Machin fails to cite any evidence whatsoever to support his
28
opinion, his statement constitutes improper opinion testimony. (Cal. Evid.
Code §§ 720, 800-803; Greshko v. County of Los Angeles, 194 Cal. App. 3d
3
PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF
BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT
1 822, 834 (1987) ("Affidavits or declarations setting forth only conclusions,
opinions or ultimate facts are held insufficient; even an expert's opinion
2 cannot rise to the dignity of substantial evidence if it is unsubstantiated by
facts"); Reida v. Lund, 18 Cal. App. 3d 698, 702 (1971) (finding
3
diagnosis and conclusions arrived at from depositions, newspaper reports,
4 and a distrust for the other side's contrary declarations "lacks even a modicum
of evidentiary value, for it amounts to no more than the psychologist's
5 personal and unsupported expression of disbelief in the testimony of
another").)
6
(c) Where Mr. Machin fails to cite any evidence whatsoever to support his
7 opinion, his statement constitutes inadmissible speculation and conclusions
8 (Cal. Evid. Code §§ 400, 403, 410; Los Angeles County Office of the Dist.
Attorney v. Civil Serv. Comm'n of County of Los Angeles, 55 Cal. App. 4th
9 187, 201-202 (1997) ("Rather than offer evidence showing [the fact sought
to be proved, the party] merely insinuated [motives for the fact.] Such
10 testimony is mere speculation not supported by any evidence"); Trujillo v.
First Am. Registry, Inc., 157 Cal. App. 4th 628, 635 (2008) ("opposition to
11
summary judgment will be deemed insufficient when it is essentially
12 conclusionary, argumentative or based on conjecture and speculation").)
14241 NE Woodinville-Duvall Road, Suite 382
13 (d) Mr. Machin testified in his declaration that he did not visit the site of the
MONAHAN TUCKER LAW, P.C.
property until after the fire, when the original home was destroyed. Therefore, this
Woodinville, WA 98072
14 statement, which provides no support for his claims of changes to the location and
(866) 823-8275
design of the home at issue, a home that was destroyed by fire before this lawsuit
15 began and before his visit to the site, constitutes inadmissible hearsay. (Cal. Evid.
16 Code §§1200.)
17
18 COURTS RULING: SUSTAINED:
19 OVERRULED:
20
21 E. STATEMENT:
22 Paragraph 3: Notably, the placement of the new construction on a slope on a different
23 location on the property increased the construction expense for the foundations, utilities,
infrastructure, landscaping, erosion control and other related expenses that would have otherwise
24 been avoided.
25 OBJECTIONS:
26 (a) Mr. Machin’s statement lacks foundation (Cal. Evid. Code §§ 702(a), 800.)
27
(b) Where Mr. Machin fails to cite any evidence whatsoever to support his
28 opinion, his statement constitutes improper opinion testimony. (Cal. Evid.
Code §§ 720, 800-803; Greshko v. County of Los Angeles, 194 Cal. App. 3d
4
PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF
BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT
1 822, 834 (1987) ("Affidavits or declarations setting forth only conclusions,
opinions or ultimate facts are held insufficient; even an expert's opinion
2 cannot rise to the dignity of substantial evidence if it is unsubstantiated by
facts"); Reida v. Lund, 18 Cal. App. 3d 698, 702 (1971) (finding
3
diagnosis and conclusions arrived at from depositions, newspaper reports,
4 and a distrust for the other side's contrary declarations "lacks even a modicum
of evidentiary value, for it amounts to no more than the psychologist's
5 personal and unsupported expression of disbelief in the testimony of
another").)
6
(c) Where Mr. Machin fails to cite any evidence whatsoever to support his
7 opinion, his statement constitutes inadmissible speculation and conclusions
8 (Cal. Evid. Code §§ 400, 403, 410; Los Angeles County Office of the Dist.
Attorney v. Civil Serv. Comm'n of County of Los Angeles, 55 Cal. App. 4th
9 187, 201-202 (1997) ("Rather than offer evidence showing [the fact sought
to be proved, the party] merely insinuated [motives for the fact.] Such
10 testimony is mere speculation not supported by any evidence"); Trujillo v.
First Am. Registry, Inc., 157 Cal. App. 4th 628, 635 (2008) ("opposition to
11
summary judgment will be deemed insufficient when it is essentially
12 conclusionary, argumentative or based on conjecture and speculation").)
14241 NE Woodinville-Duvall Road, Suite 382
13 (d) Mr. Machin testified in his declaration that he did not visit the site of the
MONAHAN TUCKER LAW, P.C.
property until after the fire, when the original home was destroyed. Therefore, this
Woodinville, WA 98072
14 statement, which provides no support for his claims of changes to the location and
(866) 823-8275
design of the home at issue, a home that was destroyed by fire before this lawsuit
15 began, constitutes inadmissible hearsay. (Cal. Evid. Code §§1200.)
16
COURTS RULING: SUSTAINED:
17
OVERRULED:
18
F. STATEMENT:
19
Paragraph 3: Accordingly, the amount of total construction costs Plaintiff contends as costs
20 to rebuild the home in his declaration is inaccurate as a reflection of what costs would have been
required to rebuild the Subject Property which Plaintiff lost in the wildfire.
21
22 OBJECTIONS:
23 (a) Mr. Machin’s statement lacks foundation (Cal. Evid. Code §§ 702(a), 800.)
24 (b) Where Mr. Machin fails to cite any evidence whatsoever to support his
opinion, his statement constitutes improper opinion testimony. (Cal. Evid.
25 Code §§ 720, 800-803; Greshko v. County of Los Angeles, 194 Cal. App. 3d
822, 834 (1987) ("Affidavits or declarations setting forth only conclusions,
26
opinions or ultimate facts are held insufficient; even an expert's opinion
27 cannot rise to the dignity of substantial evidence if it is unsubstantiated by
facts"); Reida v. Lund, 18 Cal. App. 3d 698, 702 (1971) (finding
28 diagnosis and conclusions arrived at from depositions, newspaper reports,
and a distrust for the other side's contrary declarations "lacks even a modicum
5
PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF
BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT
1 of evidentiary value, for it amounts to no more than the psychologist's
personal and unsupported expression of disbelief in the testimony of
2 another").)
3 (c) Where Mr. Machin fails to cite any evidence whatsoever to support his
4 opinion, his statement constitutes inadmissible speculation and conclusions
(Cal. Evid. Code §§ 400, 403, 410; Los Angeles County Office of the Dist.
5 Attorney v. Civil Serv. Comm'n of County of Los Angeles, 55 Cal. App. 4th
187, 201-202 (1997) ("Rather than offer evidence showing [the fact sought
6 to be proved, the party] merely insinuated [motives for the fact.] Such
testimony is mere speculation not supported by any evidence"); Trujillo v.
7 First Am. Registry, Inc., 157 Cal. App. 4th 628, 635 (2008) ("opposition to
8 summary judgment will be deemed insufficient when it is essentially
conclusionary, argumentative or based on conjecture and speculation").)
9
COURTS RULING: SUSTAINED:
10
OVERRULED:
11
12
14241 NE Woodinville-Duvall Road, Suite 382
II. DECLARATION OF BRIAN HUNSAKER
13
MONAHAN TUCKER LAW, P.C.
Woodinville, WA 98072
14 A. STATEMENT:
(866) 823-8275
15 Paragraph 5: In 2006, when I assisted Mr. Koop to complete the Memorandum of Fire
Insurance (hereinafter as “Memorandum”) to apply for the Policy, Mr. Koop did not convey
16 to me that he believed the Subject Property was a custom grade property, nor that the
information supplied to complete the memorandum was wrong or incorrect which failed to
17 reflect the Subject Property was a custom grade or luxury grade property.
18 OBJECTIONS:
19
(a) The statement misstates evidence as the “Memorandum” on its face shows
20 that the grade of the only room for which a grade was requested was “custom.” (Evid.
Code § 403.)
21
(b) The statement violates the Best Evidence Rule by providing secondary oral
22 testimony regarding the contents of a writing. Cal. Evid. Code §§ 1520-23.
23 COURTS RULING: SUSTAINED:
24 OVERRULED:
25
III. DECLARATION OF ELIZABETH EVANS
26
A. STATEMENT:
27
Paragraph 3: In the call I had with Gary Koop on September 1, 2015 call, I did not tell Gary
28 Koop that he had “sufficient coverage on the Policy” to rebuild his home as it was ultimately
Plaintiff’s responsibility to determine the sufficiency on the coverage.
6
PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF
BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT
1 OBJECTIONS:
2 (a) Contradicts prior sworn deposition that she could not recall whether or not
Plaintiff asked about the sufficiency of his coverage. See Tucker Decl. In Support of
3 Motion for Summary Judgment, Ex. 27, Deposition of Liz Evans, 14:21-25; 15:1)
4 D'Amico v. Board of Med. Examiners, 11 Cal. 3d 1, 21-22 (1974) bars testimony that
contradicts a prior sworn admission made during discovery. See also Archdale v.
5 American Internat. Specialty Ins. Co., 154 Cal.App.4th 449, 473 (2007)("Where a
party's self-serving declarations contradict credible discovery admissions and
6 purport to impeach that party's own prior sworn testimony, they should be
disregarded"); Thompson v. Williams (1989) 211 Cal.App.3d 566, 259 Cal.Rptr.
7 518. ( “... assertion of facts contrary to prior testimony does not constitute ‘
8 “substantive evidence of the existence of a triable issue of fact.””); Collins v. Hertz
Corp., 144 Cal.App.4th 64, 75 n. 5, 79 (a declaration contradicting deposition
9 testimony is insufficient to defeat summary judgment when objection to evidence
raised); Chaknova v. Wilbur-Ellis Co., 69 Cal. App. 4th 962, 977, 81 Cal. Rptr. 2d
10 871, 881 (1999) (a inability to recall does not create a disputed fact sufficient for
summary judgment); Gabriel v. Wells Fargo Bank, N.A., 188 Cal. App. 4th 547, 555,
11
115 Cal. Rptr. 3d 622, 628 (2010) (same); Daddario v. Snow Valley, Inc., 36 Cal.
12 App. 4th 1325, 1340, 43 Cal. Rptr. 2d 726, 734 (1995) (where plaintiff testified that
14241 NE Woodinville-Duvall Road, Suite 382
she could not recall and then submitted a declaration refuting that testimony, the
13 declaration was a sham and did not create a disputed material fact); Trovato v.
MONAHAN TUCKER LAW, P.C.
Woodinville, WA 98072
Beckman Coulter, Inc., 192 Cal. App. 4th 319, 324, 121 Cal. Rptr. 3d 330, 334 (2011)
14
(866) 823-8275
(same.)
15 COURTS RULING: SUSTAINED:
16
OVERRULED:
17
B. STATEMENT:
18
Paragraph 3: Mr. Koop requested that certain attributes of his house be changed on the
19 360Value Estimate. On Gary Koop’s request, I made the changes requested and sent him a
copy of the modified 360Value Estimate for his review to determine if any further changes
20 were needed.
21 OBJECTIONS:
22
(a) Contradicts prior sworn deposition testimony that no changes were requested.
23 See Tucker Decl. In Support of Motion for Summary Judgment, Ex. 27, Deposition
of Liz Evans, 13:16-25; 14:1-2; 24:4-6) D'Amico v. Board of Med. Examiners, 11
24 Cal. 3d 1, 21-22 (1974) bars testimony that contradicts a prior sworn admission made
during discovery. See also Archdale v. American Internat. Specialty Ins. Co., 154
25 Cal.App.4th 449, 473 (2007)("Where a party's self-serving declarations contradict
26 credible discovery admissions and purport to impeach that party's own prior sworn
testimony, they should be disregarded"); [In summary judgment context, add: It holds
27 that an affidavit or declaration contradicting a sworn admission does not raise
substantial evidence of a triable issue of fact to defeat a summary judgment
28 motion. Collins v. Hertz Corp., 144 Cal.App.4th 64, 75 n. 5, 79 (a declaration
7
PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF
BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT
1 contradicting deposition testimony is insufficient to defeat summary judgment when
objection to evidence raised).]
2
(b) The statement violates the Best Evidence Rule by providing secondary oral
3 testimony regarding the contents of a writing. Cal. Evid. Code §§ 1520-23.
4
COURTS RULING: SUSTAINED:
5
OVERRULED:
6
7
8
9 DATED: August 25, 2023 MONAHAN TUCKER LAW, P.C.
10
By:
11
12 Stacy M. Tucker, Esq.
14241 NE Woodinville-Duvall Road, Suite 382
Attorneys for Plaintiff,
13
MONAHAN TUCKER LAW, P.C.
GARY KOOP
Woodinville, WA 98072
14
(866) 823-8275
15
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8
PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF
BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT
1 PROOF OF SERVICE
2 I, Carolyn Spencer, declare as follows:
3 I am employed in the County of Rohnert Park, State of California. I am over the age of 18
and not a party to the within action; my business address is 14241 NE Woodinville-Duvall Road,
4 Suite 382, Woodinville, WA 98072.
5 On August 25, 2023, I served the foregoing document described as PLAINTIFF GARY
KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF BRIAN
6 HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT in this action by serving a true
copy thereof addressed as follows:
7
8 Christopher R. Wagner, Esq. cwagner@grsm.com
David Jones, Esq. djones@grsm.com
9 Steven Inouye, Esq. sinouye@grsm.com
GORDON REES SCULLY MANSUKHANI, ilopez@grsm.com
10 LLP jodell@grsm.com
633 West Fifth Street, 52nd floor
11
Los Angeles, CA 90071
12 Attorneys for Defendant Fire Insurance
14241 NE Woodinville-Duvall Road, Suite 382
Exchange, dba Farmers Insurance
13 Group
MONAHAN TUCKER LAW, P.C.
Woodinville, WA 98072
14
(866) 823-8275
Albert M. T. Finch, III, Esq. tfinch@fgppr.com
15 Jason Deng, Esq. jdeng@fgppr.com
FORAN GLENNON kokasaki@fgppr.com
16 1741 Technology Drive, Suite 250
San Jose, CA 95110
17 Attorneys for Defendant Brian Hunsaker
18 Glenn R. Kantor gkantor@kantorlaw.net
19 KANTOR & KANTOR, LLP srowe@kantorlaw.net
19839 Nordhoff Street
20 Northridge, CA 91324
Co-Counsel for Plaintiff, Gary Koop
21
[X] BY E-MAIL SERVICE: I caused a copy of the document(s) to be sent from e-mail address
22 cspencer@kantorlaw.net to the persons at the e-mail addresses listed above. I did not receive,
within a reasonable time after the transmission, any electronic message or other indication that the
23 transmission was unsuccessful.
24 [x] STATE: I declare under penalty of perjury under the Laws of the State of California that the
foregoing is true and correct.
25 I declare under penalty of perjury under the laws of the State of California that the above is
26 true and correct. Executed on August 25, 2023, Rohnert Park, California.
27 /s/Carolyn Spencer
Carolyn Spencer
28
9
PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF
BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT
Preview
1 Stacy M. Tucker (SBN 218942) smtucker@mtlawpc.com 2 MONAHAN TUCKER LAW, PC 14241 NE Woodinville-Duvall Road 3 Suite 382 4 Woodinville, WA 98072 T: (206) 486-3553 5 F: (206) 339-7155 6 Glenn R. Kantor (SBN 122643) gkantor@kantorlaw.net 7 KANTOR & KANTOR, LLP 8 19839 Nordhoff Street Northridge, CA 91324 9 T: (818) 886-2525 F: (818) 350-6272 10 11 Attorneys for Plaintiff Gary Koop 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14241 NE Woodinville-Duvall Road, Suite 382 13 COUNTY OF SONOMA MONAHAN TUCKER LAW, P.C. Woodinville, WA 98072 14 (866) 823-8275 GARY KOOP, Case No.: SCV-266944 15 Plaintiff, [Honorable Oscar Pardo – Dept. 19] 16 v. PLAINTIFF GARY KOOP’S 17 OBJECTIONS TO EVIDENCE FIRE INSURANCE EXCHANGE, dba 18 FARMERS INSURANCE GROUP; BRIAN SUBMITTED IN OPPOSITION TO HUNSAKER, DEFENDANT BRIAN HUNSAKER’S 19 MOTION FOR SUMMARY JUDGMENT Defendants. OR ADJUDICATION 20 21 22 Action Filed: August 24, 2020 23 Trial Date: November 17, 2023 24 25 26 27 28 1 PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT 1 Pursuant to California Rules of Court, rules 3.1352 and 3.1354, Plaintiff Gary Koop 2 (“Plaintiff”) hereby submit its objections to the evidence submitted by Defendant Brian Hunsaker 3 (“Hunsaker” or “Defendant”) in opposition to Plaintiff’s motion for summary judgement or, 4 alternatively, summary adjudication: 5 6 I. DECLARATION OF JOHN MACHIN, JR. 7 A. STATEMENT: 8 The entire declaration is inadmissible. 9 OBJECTIONS: 10 (a) Defendant Hunsaker was served with an expert disclosure demand on 11 December 14, 2022. (See Declaration of Stacy Monahan Tucker, Ex. 1.) Defendant has never responded to that demand. (Id. ¶ 3.) Pursuant to California law, no expert 12 witness may provide testimony to support a motion for summary judgment if not 14241 NE Woodinville-Duvall Road, Suite 382 disclosed after receipt of a demand to disclose expert witnesses and testimony. 13 MONAHAN TUCKER LAW, P.C. (C.C.P. § 2034(j)(1); Cal. Code Civ. Proc §437(c); Perry v. Bakewell Hawthorne, Woodinville, WA 98072 14 LLC, 2 Cal. 5th 536, 541 (2017) (866) 823-8275 15 16 COURTS RULING: SUSTAINED: 17 OVERRULED: 18 19 B. STATEMENT: 20 Paragraph 3: In the course of this litigation, I have visited the property that was built after 21 the fire and reviewed evidence concerning the pre-existing structure and property characteristics. 22 OBJECTIONS: 23 (a) The assertion lacks foundation. No such alleged “evidence” was cited or 24 attached to Mr. Machin’s declaration. (Evd. Code § 403.) 25 26 COURTS RULING: SUSTAINED: 27 OVERRULED: 28 2 PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT 1 C. STATEMENT: 2 Paragraph 3: It is my opinion that the alleged total amount of $3,378,568.10 that Plaintiff claims is required to rebuild Plaintiff’s property after the subject fire is substantially in excess of 3 what would be required to rebuild a house of the same size, with same characteristics and in the 4 same location on Koop’s property. See Koop Decl.¶ 13, Exhibit A. 5 OBJECTIONS: 6 (a) Where Mr. Machin fails to cite any evidence whatsoever to support his 7 opinion, his statement constitutes improper opinion testimony. (Cal. Evid. Code §§ 720, 800-803; Greshko v. County of Los Angeles, 194 Cal. App. 3d 822, 834 (1987) 8 ("Affidavits or declarations setting forth only conclusions, opinions or ultimate facts 9 are held insufficient; even an expert's opinion cannot rise to the dignity of substantial evidence if it is unsubstantiated by facts"); Reida v. Lund, 18 Cal. App. 3d 698, 702 10 (1971) (finding diagnosis and conclusions arrived at from depositions, newspaper reports, and a distrust for the other side's contrary declarations "lacks even a 11 modicum of evidentiary value, for it amounts to no more than the psychologist's personal and unsupported expression of disbelief in the testimony of another").) 12 14241 NE Woodinville-Duvall Road, Suite 382 13 (b) Where Mr. Machin fails to cite any evidence whatsoever to support his MONAHAN TUCKER LAW, P.C. opinion, his statement constitutes inadmissible speculation and conclusions (Cal. Woodinville, WA 98072 14 Evid. Code §§ 400, 403, 410; Los Angeles County Office of the Dist. Attorney v. Civil (866) 823-8275 Serv. Comm'n of County of Los Angeles, 55 Cal. App. 4th 187, 201-202 (1997) 15 ("Rather than offer evidence showing [the fact sought to be proved, the party] merely insinuated [motives for the fact.] Such testimony is mere speculation not supported 16 by any evidence"); Trujillo v. First Am. Registry, Inc., 157 Cal. App. 4th 628, 635 17 (2008) ("opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation").) 18 COURTS RULING: SUSTAINED: 19 OVERRULED: 20 21 D. STATEMENT: 22 The changes to the location of the house on the lot, the changes to the size and design of the 23 house, and the changes to the attributes of the new home were very different from the previous 24 structure in place and necessitated additional construction expense. 25 OBJECTIONS: 26 (a) Mr. Machin’s statement lacks foundation (Cal. Evid. Code §§ 702(a), 800.) 27 (b) Where Mr. Machin fails to cite any evidence whatsoever to support his 28 opinion, his statement constitutes improper opinion testimony. (Cal. Evid. Code §§ 720, 800-803; Greshko v. County of Los Angeles, 194 Cal. App. 3d 3 PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT 1 822, 834 (1987) ("Affidavits or declarations setting forth only conclusions, opinions or ultimate facts are held insufficient; even an expert's opinion 2 cannot rise to the dignity of substantial evidence if it is unsubstantiated by facts"); Reida v. Lund, 18 Cal. App. 3d 698, 702 (1971) (finding 3 diagnosis and conclusions arrived at from depositions, newspaper reports, 4 and a distrust for the other side's contrary declarations "lacks even a modicum of evidentiary value, for it amounts to no more than the psychologist's 5 personal and unsupported expression of disbelief in the testimony of another").) 6 (c) Where Mr. Machin fails to cite any evidence whatsoever to support his 7 opinion, his statement constitutes inadmissible speculation and conclusions 8 (Cal. Evid. Code §§ 400, 403, 410; Los Angeles County Office of the Dist. Attorney v. Civil Serv. Comm'n of County of Los Angeles, 55 Cal. App. 4th 9 187, 201-202 (1997) ("Rather than offer evidence showing [the fact sought to be proved, the party] merely insinuated [motives for the fact.] Such 10 testimony is mere speculation not supported by any evidence"); Trujillo v. First Am. Registry, Inc., 157 Cal. App. 4th 628, 635 (2008) ("opposition to 11 summary judgment will be deemed insufficient when it is essentially 12 conclusionary, argumentative or based on conjecture and speculation").) 14241 NE Woodinville-Duvall Road, Suite 382 13 (d) Mr. Machin testified in his declaration that he did not visit the site of the MONAHAN TUCKER LAW, P.C. property until after the fire, when the original home was destroyed. Therefore, this Woodinville, WA 98072 14 statement, which provides no support for his claims of changes to the location and (866) 823-8275 design of the home at issue, a home that was destroyed by fire before this lawsuit 15 began and before his visit to the site, constitutes inadmissible hearsay. (Cal. Evid. 16 Code §§1200.) 17 18 COURTS RULING: SUSTAINED: 19 OVERRULED: 20 21 E. STATEMENT: 22 Paragraph 3: Notably, the placement of the new construction on a slope on a different 23 location on the property increased the construction expense for the foundations, utilities, infrastructure, landscaping, erosion control and other related expenses that would have otherwise 24 been avoided. 25 OBJECTIONS: 26 (a) Mr. Machin’s statement lacks foundation (Cal. Evid. Code §§ 702(a), 800.) 27 (b) Where Mr. Machin fails to cite any evidence whatsoever to support his 28 opinion, his statement constitutes improper opinion testimony. (Cal. Evid. Code §§ 720, 800-803; Greshko v. County of Los Angeles, 194 Cal. App. 3d 4 PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT 1 822, 834 (1987) ("Affidavits or declarations setting forth only conclusions, opinions or ultimate facts are held insufficient; even an expert's opinion 2 cannot rise to the dignity of substantial evidence if it is unsubstantiated by facts"); Reida v. Lund, 18 Cal. App. 3d 698, 702 (1971) (finding 3 diagnosis and conclusions arrived at from depositions, newspaper reports, 4 and a distrust for the other side's contrary declarations "lacks even a modicum of evidentiary value, for it amounts to no more than the psychologist's 5 personal and unsupported expression of disbelief in the testimony of another").) 6 (c) Where Mr. Machin fails to cite any evidence whatsoever to support his 7 opinion, his statement constitutes inadmissible speculation and conclusions 8 (Cal. Evid. Code §§ 400, 403, 410; Los Angeles County Office of the Dist. Attorney v. Civil Serv. Comm'n of County of Los Angeles, 55 Cal. App. 4th 9 187, 201-202 (1997) ("Rather than offer evidence showing [the fact sought to be proved, the party] merely insinuated [motives for the fact.] Such 10 testimony is mere speculation not supported by any evidence"); Trujillo v. First Am. Registry, Inc., 157 Cal. App. 4th 628, 635 (2008) ("opposition to 11 summary judgment will be deemed insufficient when it is essentially 12 conclusionary, argumentative or based on conjecture and speculation").) 14241 NE Woodinville-Duvall Road, Suite 382 13 (d) Mr. Machin testified in his declaration that he did not visit the site of the MONAHAN TUCKER LAW, P.C. property until after the fire, when the original home was destroyed. Therefore, this Woodinville, WA 98072 14 statement, which provides no support for his claims of changes to the location and (866) 823-8275 design of the home at issue, a home that was destroyed by fire before this lawsuit 15 began, constitutes inadmissible hearsay. (Cal. Evid. Code §§1200.) 16 COURTS RULING: SUSTAINED: 17 OVERRULED: 18 F. STATEMENT: 19 Paragraph 3: Accordingly, the amount of total construction costs Plaintiff contends as costs 20 to rebuild the home in his declaration is inaccurate as a reflection of what costs would have been required to rebuild the Subject Property which Plaintiff lost in the wildfire. 21 22 OBJECTIONS: 23 (a) Mr. Machin’s statement lacks foundation (Cal. Evid. Code §§ 702(a), 800.) 24 (b) Where Mr. Machin fails to cite any evidence whatsoever to support his opinion, his statement constitutes improper opinion testimony. (Cal. Evid. 25 Code §§ 720, 800-803; Greshko v. County of Los Angeles, 194 Cal. App. 3d 822, 834 (1987) ("Affidavits or declarations setting forth only conclusions, 26 opinions or ultimate facts are held insufficient; even an expert's opinion 27 cannot rise to the dignity of substantial evidence if it is unsubstantiated by facts"); Reida v. Lund, 18 Cal. App. 3d 698, 702 (1971) (finding 28 diagnosis and conclusions arrived at from depositions, newspaper reports, and a distrust for the other side's contrary declarations "lacks even a modicum 5 PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT 1 of evidentiary value, for it amounts to no more than the psychologist's personal and unsupported expression of disbelief in the testimony of 2 another").) 3 (c) Where Mr. Machin fails to cite any evidence whatsoever to support his 4 opinion, his statement constitutes inadmissible speculation and conclusions (Cal. Evid. Code §§ 400, 403, 410; Los Angeles County Office of the Dist. 5 Attorney v. Civil Serv. Comm'n of County of Los Angeles, 55 Cal. App. 4th 187, 201-202 (1997) ("Rather than offer evidence showing [the fact sought 6 to be proved, the party] merely insinuated [motives for the fact.] Such testimony is mere speculation not supported by any evidence"); Trujillo v. 7 First Am. Registry, Inc., 157 Cal. App. 4th 628, 635 (2008) ("opposition to 8 summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation").) 9 COURTS RULING: SUSTAINED: 10 OVERRULED: 11 12 14241 NE Woodinville-Duvall Road, Suite 382 II. DECLARATION OF BRIAN HUNSAKER 13 MONAHAN TUCKER LAW, P.C. Woodinville, WA 98072 14 A. STATEMENT: (866) 823-8275 15 Paragraph 5: In 2006, when I assisted Mr. Koop to complete the Memorandum of Fire Insurance (hereinafter as “Memorandum”) to apply for the Policy, Mr. Koop did not convey 16 to me that he believed the Subject Property was a custom grade property, nor that the information supplied to complete the memorandum was wrong or incorrect which failed to 17 reflect the Subject Property was a custom grade or luxury grade property. 18 OBJECTIONS: 19 (a) The statement misstates evidence as the “Memorandum” on its face shows 20 that the grade of the only room for which a grade was requested was “custom.” (Evid. Code § 403.) 21 (b) The statement violates the Best Evidence Rule by providing secondary oral 22 testimony regarding the contents of a writing. Cal. Evid. Code §§ 1520-23. 23 COURTS RULING: SUSTAINED: 24 OVERRULED: 25 III. DECLARATION OF ELIZABETH EVANS 26 A. STATEMENT: 27 Paragraph 3: In the call I had with Gary Koop on September 1, 2015 call, I did not tell Gary 28 Koop that he had “sufficient coverage on the Policy” to rebuild his home as it was ultimately Plaintiff’s responsibility to determine the sufficiency on the coverage. 6 PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT 1 OBJECTIONS: 2 (a) Contradicts prior sworn deposition that she could not recall whether or not Plaintiff asked about the sufficiency of his coverage. See Tucker Decl. In Support of 3 Motion for Summary Judgment, Ex. 27, Deposition of Liz Evans, 14:21-25; 15:1) 4 D'Amico v. Board of Med. Examiners, 11 Cal. 3d 1, 21-22 (1974) bars testimony that contradicts a prior sworn admission made during discovery. See also Archdale v. 5 American Internat. Specialty Ins. Co., 154 Cal.App.4th 449, 473 (2007)("Where a party's self-serving declarations contradict credible discovery admissions and 6 purport to impeach that party's own prior sworn testimony, they should be disregarded"); Thompson v. Williams (1989) 211 Cal.App.3d 566, 259 Cal.Rptr. 7 518. ( “... assertion of facts contrary to prior testimony does not constitute ‘ 8 “substantive evidence of the existence of a triable issue of fact.””); Collins v. Hertz Corp., 144 Cal.App.4th 64, 75 n. 5, 79 (a declaration contradicting deposition 9 testimony is insufficient to defeat summary judgment when objection to evidence raised); Chaknova v. Wilbur-Ellis Co., 69 Cal. App. 4th 962, 977, 81 Cal. Rptr. 2d 10 871, 881 (1999) (a inability to recall does not create a disputed fact sufficient for summary judgment); Gabriel v. Wells Fargo Bank, N.A., 188 Cal. App. 4th 547, 555, 11 115 Cal. Rptr. 3d 622, 628 (2010) (same); Daddario v. Snow Valley, Inc., 36 Cal. 12 App. 4th 1325, 1340, 43 Cal. Rptr. 2d 726, 734 (1995) (where plaintiff testified that 14241 NE Woodinville-Duvall Road, Suite 382 she could not recall and then submitted a declaration refuting that testimony, the 13 declaration was a sham and did not create a disputed material fact); Trovato v. MONAHAN TUCKER LAW, P.C. Woodinville, WA 98072 Beckman Coulter, Inc., 192 Cal. App. 4th 319, 324, 121 Cal. Rptr. 3d 330, 334 (2011) 14 (866) 823-8275 (same.) 15 COURTS RULING: SUSTAINED: 16 OVERRULED: 17 B. STATEMENT: 18 Paragraph 3: Mr. Koop requested that certain attributes of his house be changed on the 19 360Value Estimate. On Gary Koop’s request, I made the changes requested and sent him a copy of the modified 360Value Estimate for his review to determine if any further changes 20 were needed. 21 OBJECTIONS: 22 (a) Contradicts prior sworn deposition testimony that no changes were requested. 23 See Tucker Decl. In Support of Motion for Summary Judgment, Ex. 27, Deposition of Liz Evans, 13:16-25; 14:1-2; 24:4-6) D'Amico v. Board of Med. Examiners, 11 24 Cal. 3d 1, 21-22 (1974) bars testimony that contradicts a prior sworn admission made during discovery. See also Archdale v. American Internat. Specialty Ins. Co., 154 25 Cal.App.4th 449, 473 (2007)("Where a party's self-serving declarations contradict 26 credible discovery admissions and purport to impeach that party's own prior sworn testimony, they should be disregarded"); [In summary judgment context, add: It holds 27 that an affidavit or declaration contradicting a sworn admission does not raise substantial evidence of a triable issue of fact to defeat a summary judgment 28 motion. Collins v. Hertz Corp., 144 Cal.App.4th 64, 75 n. 5, 79 (a declaration 7 PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT 1 contradicting deposition testimony is insufficient to defeat summary judgment when objection to evidence raised).] 2 (b) The statement violates the Best Evidence Rule by providing secondary oral 3 testimony regarding the contents of a writing. Cal. Evid. Code §§ 1520-23. 4 COURTS RULING: SUSTAINED: 5 OVERRULED: 6 7 8 9 DATED: August 25, 2023 MONAHAN TUCKER LAW, P.C. 10 By: 11 12 Stacy M. Tucker, Esq. 14241 NE Woodinville-Duvall Road, Suite 382 Attorneys for Plaintiff, 13 MONAHAN TUCKER LAW, P.C. GARY KOOP Woodinville, WA 98072 14 (866) 823-8275 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT 1 PROOF OF SERVICE 2 I, Carolyn Spencer, declare as follows: 3 I am employed in the County of Rohnert Park, State of California. I am over the age of 18 and not a party to the within action; my business address is 14241 NE Woodinville-Duvall Road, 4 Suite 382, Woodinville, WA 98072. 5 On August 25, 2023, I served the foregoing document described as PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF BRIAN 6 HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT in this action by serving a true copy thereof addressed as follows: 7 8 Christopher R. Wagner, Esq. cwagner@grsm.com David Jones, Esq. djones@grsm.com 9 Steven Inouye, Esq. sinouye@grsm.com GORDON REES SCULLY MANSUKHANI, ilopez@grsm.com 10 LLP jodell@grsm.com 633 West Fifth Street, 52nd floor 11 Los Angeles, CA 90071 12 Attorneys for Defendant Fire Insurance 14241 NE Woodinville-Duvall Road, Suite 382 Exchange, dba Farmers Insurance 13 Group MONAHAN TUCKER LAW, P.C. Woodinville, WA 98072 14 (866) 823-8275 Albert M. T. Finch, III, Esq. tfinch@fgppr.com 15 Jason Deng, Esq. jdeng@fgppr.com FORAN GLENNON kokasaki@fgppr.com 16 1741 Technology Drive, Suite 250 San Jose, CA 95110 17 Attorneys for Defendant Brian Hunsaker 18 Glenn R. Kantor gkantor@kantorlaw.net 19 KANTOR & KANTOR, LLP srowe@kantorlaw.net 19839 Nordhoff Street 20 Northridge, CA 91324 Co-Counsel for Plaintiff, Gary Koop 21 [X] BY E-MAIL SERVICE: I caused a copy of the document(s) to be sent from e-mail address 22 cspencer@kantorlaw.net to the persons at the e-mail addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the 23 transmission was unsuccessful. 24 [x] STATE: I declare under penalty of perjury under the Laws of the State of California that the foregoing is true and correct. 25 I declare under penalty of perjury under the laws of the State of California that the above is 26 true and correct. Executed on August 25, 2023, Rohnert Park, California. 27 /s/Carolyn Spencer Carolyn Spencer 28 9 PLAINTIFF GARY KOOP’S OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF BRIAN HUNSAKER’S OPPOSITION TO SUMMARY JUDGMENT