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1 GILBERT J. PREMO
Attorney at Law, State Bar No. 48503
2 500 Northfield Lane
ELECTRONICALLY
Lincoln, CA 95648-8321
3 Telephone: (415) 974-6664 FILED
Fax: (415) 762-5350 Superior Court of California,
County of San Francisco
4 Email: gilbertpremo@gmail.com
04/11/2023
5 Attorney for Plaintiff Clerk of the Court
BY: SANDRA SCHIRO
Michael A. Canatella Deputy Clerk
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 CITY AND COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
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MICHAEL A. CANATELLA, NO. CGC-22-602011
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Plaintiff, DECLARATION OF GILBERT J.
12 PREMO. IN SUPPORT OF
vs. PLAINTIFF’S EX PARTE APPLICATION
13 FOR WAIVER OF WITNESS
DAVID S. MUDWAY, REQUIREMENT AND PERMISSION TO
14 ROBERT EARL GUILLORY, PROCEED BY DECLARATION ON
REG CONSTRUCTION, aka R E G PLAINTIFF’S APPLICATION FOR
15 CONSTRUCTION, et al. DEFAULT JUDGMENT
16 Default Prove-Up Hearing Date: 5/5/2023
Defendants. Time: 1:30 p.m
______________________________________/
17 Department 505
Judge: Hon. M. Tong
18 Action Filed: 9/28/2022
19 I, GILBERT J PREMO, declare as follows:
20 1. I am, and have been at all times herein mentioned, an active member of the State Bar of
21 California, and the attorney of record for plaintiff MICHAEL A. CANATELLA in this action. I make
22 this Declaration in support of plaintiff’s above-referenced application for Waiver of the Witness
23 Requirement and Permission to Proceed by Declaration on plaintiff’s application for default judgment
24 herein. Except where otherwise indicated herein, I have first-hand and personal knowledge of the facts
25 stated herein, and if called as a witness in this proceedings to testify thereto, I could and would testify
26 competently thereto.
27 2. Plaintiff filed herein on February 28, 2023 his application for a default judgment against
28 defendants David S. Mudway, Robert Earl Guillory, and REG Construction, aka R E G Construction
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Declaration of Gilbert J. Premo in support of Application to Proceed by Declaration
1 (collectively, “defendants”). The Application was supported, among other things, by four declarations,
2 as follows:
3 a. Declaration of Plaintiff Michael A. Canatella in Support of Plaintiff's Application for Default
4 Judgment.
5 b. Declaration of Mark Steven Rush in Support of Plaintiff's Application for Default Judgment.
6 c. Declaration of Gilbert J Premo in Support of Plaintiff's Application for Default Judgment; and
7 d. Declaration of Gilbert J. Premo Re: Attorney's Fees and Interest in Support of Plaintiff's
8 Application for Default Judgment.
9 3. In summary:
10 a. Plaintiff’s Declaration states defendants’ oral and written representations to him that “REG
11 Construction” was a partnership of Mudway and Guillory, duly licenced as a contractor, plaintiff’s entry
12 into a contract (the “Contract”) with defendants for extensive repairs and improvements to be made to
13 the Canatella family home, the payments plaintiff made to defendants under the Contract, defendants’
14 failure to complete such construction work, and plaintiff’s discovery of defects in the work . Plaintiff’s
15 Declaration includes ten (10) numbered exhibits, including copies of defendants’ written representations
16 of being licensed, the written Contract and change orders, and copies of all the checks plaintiff paid to
17 defendants under the Contract.
18 b. The Declaration of Mark Steven Rush first states his expert witness qualifications as a
19 experienced licensed building contractor and structural pest control operation, and certified Residential
20 Building Inspector. It then continues on to state that he inspected the subject home on August 8, 2022,
21 and prepared a “Consultants Report” as to his inspection, a true copy of which is attached as “EXHIBIT
22 A” to his declaration, and incorporated by reference therein. The Report shows that there were many
23 defects in defendants’ work, of an estimated cost to repair of over $60,000. Mr. Rush’s declaration
24 finally states that the Report truly and accurately sets forth the conditions he observed, and his opinions
25 on the appropriate remedies for the defective and substandard conditions observed, and the estimate cost
26 of remedying the same.
27 c. The first Declaration of Gilbert J. Premo attaches documents obtained and certified by the
28 Contractors State License Board proving that defendants were never properly licensed as contractors by
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Declaration of Gilbert J. Premo in support of Application to Proceed by Declaration
1 the Board at any time during the performance of the Contract. It also includes copies of the demand made
2 by Mr. Premo, on behalf of plaintiff, upon defendants to return the compensation plaintiff paid under the
3 Contract. It has a total of sixteen (16) exhibits.
4 d. The second Declaration of Gilbert J. Premo (i.e., re attorney’s fees and interest) has a detailed
5 list of the services he performed as attorney for plaintiff in the prosecution of this action through February
6 23, 2023, and a computation of the interest due plaintiff, from the date of the above-said demand for
7 return of the compensation paid, to the date, February 28, 2023, of the filing of the application. This
8 declaration has one exhibit, a list of my said services performed and billable hours.
9 4. I mailed, by Express Mail, endorsed “filed”courtesy copies of plaintiff’s Application for
10 Default Judgement, including the above Declarations and their exhibits, to Department 505 on March
11 3, 2023. I also mailed to the Court at that time what I am informed and believe is the original of the
12 subject Contract and change orders under that Contract.
13 5. If the Court were to grant permission for plaintiff to proceed on his application for default
14 judgment on the basis of the above-declarations heretofore submitted, and excuse the said witnesses from
15 personally appearing, it would be my intention to appear at the hearing herein scheduled for May 5, 2023
16 only my Zoom. However, if the Court were to deny permission to proceed by Declaration, and therefore
17 require plaintiff to put on evidence by question and answer format, then it would be my intention to
18 personally appear at the hearing. I am not sufficiently experienced with presenting exhibits and evidence
19 in the courtroom through use of Zoom to feel comfortable doing so.
20 6. Mr. Rush has advised me that his fee for testifying as an expert at deposition or trial is
21 $250.00 per hour, with a two (2) hour minium charge.
22 7. My office is in Lincoln, California, approximately 116 miles from the Courthouse. In my
23 experience the time for me to drive to San Francisco is approximately 2.5 hours in moderate traffic, to
24 up to over three hours in heavy traffic. And of course, the same amount of time to return from the
25 Courthouse to my office,. It is also possible to take a train/bus combination from Roseville or Sacramento
26 to San Francisco, but with the time to drive to the train station and time on the bus, that takes well over
27 three hours. My normal hourly rate for my services as attorney is $200.00 per hour. Therefore, the
28 attorney’s fees that would be incurred by plaintiff just for me to travel to the hearing and back would be
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Declaration of Gilbert J. Premo in support of Application to Proceed by Declaration
at least $1,000.00.
2 8. Furthermore, if permission were not granted to proceed by declaration, additional time would
3 be taken at the hearing to present the evidence in the declarations through question and answer format,
4 and the offering in evidence of each exhibit. It is not plaintiff's present intention to present evidence in
5 support of the default judgment other than the evidence which is already contained in the above-said
6 declarations. Therefore, I believe that requiring presentation of this evidence through question and
7 answer format, when it is already before the Court in the filed declarations, would be a repetitious and
8 otherwise unnecessary use of the time of the Court and of plaintiff and his attorney.
9 9. On the other hand, if the personally appearance the witnesses is excused, and plaintiff is
10 permitted to proceed on the basis of the declarations submitted, at least $1,500.00 in attorney and expert
11 witness fees would be saved, as well as the time of the Court.
12 I declare under penalty of perjury under the laws of the State of California that the foregoing is
13 true and correct.
14 Dated: April 11, 2023
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Declaration of Gilbert J. Premo in support of Application to Proceed by Declaration
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1 GILBERT J. PREMO Attorney at Law, State Bar No. 48503 2 500 Northfield Lane ELECTRONICALLY Lincoln, CA 95648-8321 3 Telephone: (415) 974-6664 FILED Fax: (415) 762-5350 Superior Court of California, County of San Francisco 4 Email: gilbertpremo@gmail.com 04/11/2023 5 Attorney for Plaintiff Clerk of the Court BY: SANDRA SCHIRO Michael A. Canatella Deputy Clerk 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 CITY AND COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION 10 MICHAEL A. CANATELLA, NO. CGC-22-602011 11 Plaintiff, DECLARATION OF GILBERT J. 12 PREMO. IN SUPPORT OF vs. PLAINTIFF’S EX PARTE APPLICATION 13 FOR WAIVER OF WITNESS DAVID S. MUDWAY, REQUIREMENT AND PERMISSION TO 14 ROBERT EARL GUILLORY, PROCEED BY DECLARATION ON REG CONSTRUCTION, aka R E G PLAINTIFF’S APPLICATION FOR 15 CONSTRUCTION, et al. DEFAULT JUDGMENT 16 Default Prove-Up Hearing Date: 5/5/2023 Defendants. Time: 1:30 p.m ______________________________________/ 17 Department 505 Judge: Hon. M. Tong 18 Action Filed: 9/28/2022 19 I, GILBERT J PREMO, declare as follows: 20 1. I am, and have been at all times herein mentioned, an active member of the State Bar of 21 California, and the attorney of record for plaintiff MICHAEL A. CANATELLA in this action. I make 22 this Declaration in support of plaintiff’s above-referenced application for Waiver of the Witness 23 Requirement and Permission to Proceed by Declaration on plaintiff’s application for default judgment 24 herein. Except where otherwise indicated herein, I have first-hand and personal knowledge of the facts 25 stated herein, and if called as a witness in this proceedings to testify thereto, I could and would testify 26 competently thereto. 27 2. Plaintiff filed herein on February 28, 2023 his application for a default judgment against 28 defendants David S. Mudway, Robert Earl Guillory, and REG Construction, aka R E G Construction ___________________________________ 1 Declaration of Gilbert J. Premo in support of Application to Proceed by Declaration 1 (collectively, “defendants”). The Application was supported, among other things, by four declarations, 2 as follows: 3 a. Declaration of Plaintiff Michael A. Canatella in Support of Plaintiff's Application for Default 4 Judgment. 5 b. Declaration of Mark Steven Rush in Support of Plaintiff's Application for Default Judgment. 6 c. Declaration of Gilbert J Premo in Support of Plaintiff's Application for Default Judgment; and 7 d. Declaration of Gilbert J. Premo Re: Attorney's Fees and Interest in Support of Plaintiff's 8 Application for Default Judgment. 9 3. In summary: 10 a. Plaintiff’s Declaration states defendants’ oral and written representations to him that “REG 11 Construction” was a partnership of Mudway and Guillory, duly licenced as a contractor, plaintiff’s entry 12 into a contract (the “Contract”) with defendants for extensive repairs and improvements to be made to 13 the Canatella family home, the payments plaintiff made to defendants under the Contract, defendants’ 14 failure to complete such construction work, and plaintiff’s discovery of defects in the work . Plaintiff’s 15 Declaration includes ten (10) numbered exhibits, including copies of defendants’ written representations 16 of being licensed, the written Contract and change orders, and copies of all the checks plaintiff paid to 17 defendants under the Contract. 18 b. The Declaration of Mark Steven Rush first states his expert witness qualifications as a 19 experienced licensed building contractor and structural pest control operation, and certified Residential 20 Building Inspector. It then continues on to state that he inspected the subject home on August 8, 2022, 21 and prepared a “Consultants Report” as to his inspection, a true copy of which is attached as “EXHIBIT 22 A” to his declaration, and incorporated by reference therein. The Report shows that there were many 23 defects in defendants’ work, of an estimated cost to repair of over $60,000. Mr. Rush’s declaration 24 finally states that the Report truly and accurately sets forth the conditions he observed, and his opinions 25 on the appropriate remedies for the defective and substandard conditions observed, and the estimate cost 26 of remedying the same. 27 c. The first Declaration of Gilbert J. Premo attaches documents obtained and certified by the 28 Contractors State License Board proving that defendants were never properly licensed as contractors by ___________________________________ 2 Declaration of Gilbert J. Premo in support of Application to Proceed by Declaration 1 the Board at any time during the performance of the Contract. It also includes copies of the demand made 2 by Mr. Premo, on behalf of plaintiff, upon defendants to return the compensation plaintiff paid under the 3 Contract. It has a total of sixteen (16) exhibits. 4 d. The second Declaration of Gilbert J. Premo (i.e., re attorney’s fees and interest) has a detailed 5 list of the services he performed as attorney for plaintiff in the prosecution of this action through February 6 23, 2023, and a computation of the interest due plaintiff, from the date of the above-said demand for 7 return of the compensation paid, to the date, February 28, 2023, of the filing of the application. This 8 declaration has one exhibit, a list of my said services performed and billable hours. 9 4. I mailed, by Express Mail, endorsed “filed”courtesy copies of plaintiff’s Application for 10 Default Judgement, including the above Declarations and their exhibits, to Department 505 on March 11 3, 2023. I also mailed to the Court at that time what I am informed and believe is the original of the 12 subject Contract and change orders under that Contract. 13 5. If the Court were to grant permission for plaintiff to proceed on his application for default 14 judgment on the basis of the above-declarations heretofore submitted, and excuse the said witnesses from 15 personally appearing, it would be my intention to appear at the hearing herein scheduled for May 5, 2023 16 only my Zoom. However, if the Court were to deny permission to proceed by Declaration, and therefore 17 require plaintiff to put on evidence by question and answer format, then it would be my intention to 18 personally appear at the hearing. I am not sufficiently experienced with presenting exhibits and evidence 19 in the courtroom through use of Zoom to feel comfortable doing so. 20 6. Mr. Rush has advised me that his fee for testifying as an expert at deposition or trial is 21 $250.00 per hour, with a two (2) hour minium charge. 22 7. My office is in Lincoln, California, approximately 116 miles from the Courthouse. In my 23 experience the time for me to drive to San Francisco is approximately 2.5 hours in moderate traffic, to 24 up to over three hours in heavy traffic. And of course, the same amount of time to return from the 25 Courthouse to my office,. It is also possible to take a train/bus combination from Roseville or Sacramento 26 to San Francisco, but with the time to drive to the train station and time on the bus, that takes well over 27 three hours. My normal hourly rate for my services as attorney is $200.00 per hour. Therefore, the 28 attorney’s fees that would be incurred by plaintiff just for me to travel to the hearing and back would be ___________________________________ 3 Declaration of Gilbert J. Premo in support of Application to Proceed by Declaration at least $1,000.00. 2 8. Furthermore, if permission were not granted to proceed by declaration, additional time would 3 be taken at the hearing to present the evidence in the declarations through question and answer format, 4 and the offering in evidence of each exhibit. It is not plaintiff's present intention to present evidence in 5 support of the default judgment other than the evidence which is already contained in the above-said 6 declarations. Therefore, I believe that requiring presentation of this evidence through question and 7 answer format, when it is already before the Court in the filed declarations, would be a repetitious and 8 otherwise unnecessary use of the time of the Court and of plaintiff and his attorney. 9 9. On the other hand, if the personally appearance the witnesses is excused, and plaintiff is 10 permitted to proceed on the basis of the declarations submitted, at least $1,500.00 in attorney and expert 11 witness fees would be saved, as well as the time of the Court. 12 I declare under penalty of perjury under the laws of the State of California that the foregoing is 13 true and correct. 14 Dated: April 11, 2023 15 16 17 G~ 18 19 20 21 22 23 24 25 26 27 28 4 -------------------------------- Declaration of Gilbert J. Premo in support of Application to Proceed by Declaration