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MATA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Oct-29-2008 9:17 am
Case Number: CGC-08-479247
Filing Date: Oct-29-2008 9:16
Juke Box: 001 Image: 02298997
ORDER
WAYNE DERMAN VS. M.KARKORI CONSTRUCTION, INC., A PURPORATED et al
001002298997
Instructions:
Please place this sheet on top of the document to be scanned.GEORGE WILLIAM WOLFF (81126)
The Law Office of George W. Wolff San Francisco County Superior Court
655 Montgomery Street, suite 1050
P.O, Box 36749, OCT 2 9 2008
San Francisco, CA 94126-6749
Telephone(415) 788-1881 GORDON PARK-LI, Clerk
Telecopier: (415)788-0880 BY: . Leap daha
Attorneys for Cross-Complainant/Petitioner M. Kakori Construction, Inc.. Deputy Clerk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
Wayne Derman, an individual NO. CGC-08-479247
Plaintiff, I sere a ORDER ON
DEFENDANTS’ OBJECTIONS TO
vs PLAINTIFF’S EVIDENCE ON
MOTION TO REMOVE
MECHANICS LIEN
M. Karkori Construction Inc, a California
Corporation; Mostafa Karkori, an individual, et al. | Date: October 22, 2008
Time: 9:30 a.m.
Defendants. Dent: 301
Judge: Hon. Peter J. Busch
Filed: August 28, 2008
And related Cross-Complaint and Petition to Trial Date: None
Compel Arbitration
This Matter coming to be Heard on Plaintiffs Motion to Remove Lien, and Defendants’
Objections to Plaintiff s Evidence in support of such Motion, the Court makes the following rulings
as Defendants Objections to Evidence:
A. Objections to Riebli opening Declaration:
A.l. _ “[I] have personal knowledge of the following facts and could and would testify competently
thereto if called as witness”
Objection:
This state fails to state facts supporting the witness’s personal knowledge of any
subsequent facts stated later in the C.C.P. § 437c(d); Evid. Code § 702. The bare conclusory
statement or assertion that the declarant has personal knowledge does not prove that he or she has
[PROPOSE] ORDER ON Def. Objections
to Pl’s Motion to
Remove Mechanic’s LienSOU wm ND NH BF WN =
NN KR NN NN NN Be Be Be Be ew ee ew He eH
ond nA PF HH KF SDMA DH BF WN
personal knowledge of the facts asserted elsewhere in the declaration. The text of the affidavit must
affirmatively show how the witness obtained that personal knowledge, if any. See 6 Witkin,
California Procedure (4" Ed.), Proceedings Without Trial, § 203.
Court’s Ruling on Objection A.1. Sustained:
A.4. “[M]KC/Karkori ha[d] been ‘holding the job idle for several weeks now’”.
Objection:
The attached Exhibit C is hearsay as to whether Mr. Wolff said the job had been idle
for several weeks, does show the witness had personal knowledge of the facts, is not an admission,
and is irrelevant, as the issue is whether all work on the job by all contractors and subcontractors and
the owner’s own subcontractors had ceased for 60 days plus 90 day under Civil §§ 3086(c); 3115
Evid. Code § 702
The argument in Plaintiff's Reply Brief (p.3) misstates the law. Showplace Square Loft Co.,
LLC vy, Primecore Mortg. Trust, Inc. (Inre Showplace Square Loft Co., LLC) (BK.. N.D. Cal. 2003)
289 B.R. 403, 408; W.F. Hayward Co. v. Transamerica Ins. Co.(1993) 16 Cal.App.4th 1101, 20
Cal.Rptr.2d 468, 473; ("cessation" is a "complete work stoppage" and means "work by all trades
has ceased on the project").
Plaintiffs opening memo admits he has had another contractor working on the job (p.1,L14,
p.4, L26, p.5, L2) Exhibit B to Mr. Rlebli’s opening Declaration instructs Defendants to continue
their work after January 1, 2008. ({ 1, 3 &5, p.6, § 1).
Plaintiff's opening declaration also irrevocably admits Karkori did work after January 31,
2008 (p.5, LL 8-10), that Plaintiff had hired another contractor (p.5, L13) and that Plaintiff hired
others to do plumbing, flooring, cabinets (p.5, L16-18); See also Complaint § 31, 36.
[PROPOSE] ORDER ON Def. Objections
to Pl’s Motion to
-2- Remove Mechanic’s LienoO ON DH RF WN
11
Court’s Ruling on Objection A.4. Sustained:
Overruled: ff
A.5. “[M]JKC/Karkor had been ‘ordered by the owner...to stop work for over a month and is
complying with it’”.
Objection:
The attached Exhibit D is hearsay as to whether Mr. Wolff said the job had been idle
for several weeks, does not show the witness had personal knowledge of the facts, is not an
admission, and is irrelevant, as the issue is whether all work on the job by all contractors and
subcontractors and the owner’s own subcontractors had ceased for 60 days plus 90 day under Civil
§§ 3086(c); 3115 Evid. Code § 702
The argument in Plaintiff’s Reply Brief (p.3) misstates the law. Showplace Square Loft Co.,
LLC v. Primecore Mortg. Trust, Inc. (In re Showplace Square Loft Co., LLC) (BK..N.D. Cal. 2003)
289 B.R. 403, 408; W.F. Hayward Co. v. Transamerica Ins. Co.(1993) 16 Cal.App.4th 1101, 20
Cal.Rptr.2d 468, 473; ("cessation" is a "complete work stoppage” and means "work by all trades
has ceased on the project").
Plaintiffs opening memo admits Plaintiffhas had another contractor working on the job (p.1,
L14, p.4, L26, p.5, L2) Exhibit B to Mr. Rlebli’s opening Declaration instructs Defendants to
continue their work after January 1, 2008. (4 1, 3 &5, p.6, § 1).
Plaintiff's opening declaration irrevocably admits Karkori did work after January 31, 2008
(p.5, LL 8-10), that Plaintiff had hired another contractor (p.5, L13) and that Plaintiff hired others
to do plumbing, flooring, cabinets (p.5, L16-18); See also Complaint § 31, 36.
Court’s Ruling on Objection A.5. Sustained:
Overruled: 4
[PROPOSE] ORDER ON Def. Objections
to Pl’s Motion to
-3- Remove Mechanic’s Lienom NIN DH PF WH =
RON a a a
RPNRRBRBBRESSExRX VIA GDBEBEHKHAS
A.6. “Mr. Sykes has asked Mr. Wolff to have MKC/Karkori remove its mechanic’s lien but,
according to Mr. Wolff, MKC/Karkori refuses”,
Objection:
Hearsay to conversation between parties other than declaration, does not show declarant had
personal knowledge. Evid. Code § 702.
This statement fails to state facts supporting the witness’s personal knowledge of any
subsequent facts stated later in the C.C.P. § 437c(d); Evid. Code § 702.
Court’s Ruling on Objection A.6. Sustained:
Overruled:
B. Objections to Derman opening Declaration
B.1. “[I] have personal knowledge of the following facts and could and would testify competently
thereto if called as witness”
Objection: This state fails to state facts supporting the witness’s personal knowledge of any
subsequent facts stated later in the C.C.P. § 437c(d); Evid. Code § 702, The bare
conclusory statement or assertion that the declarant has personal knowledge does not
prove that he or she has personal knowledge of the facts asserted elsewhere in the
declaration. The text of the affidavit must affirmatively show how the witness
obtained that personal knowledge, if any. See 6 Witkin, California Procedure (4
Ed.), Proceedings Without Trial, § 203.
Court’s Ruling on Objection B.1. Sustained:
Overruled: VZ
B.5. “[MJKC/Karkori made numerous mistakes. It:[subparagraphs a. to n.]”
Objections:
Again, there is no foundation in the declarations showing the personal knowledge to know
[PROPOSE] ORDER ON Def. Objections
to PI’s Motion to
-4- Remove Mechanic’s Lienoem YN Dn BF WN |
NN YN NN NR NK ee Bee Be Se ese Be Be
oN AA FF oBNnH YF SOON DH FE WN KH SO
or qualifications of the witness to make the following statements of fact or to render on expert
opinion as to whether reinforcing steel and roughins were properly installed ({ b), whether the
foundation was properly installed (§ d.), whether walls were properly attached to the foundation ({
e), whether framing and staircases were properly installed or the witness heard the architect’s
statement to Defendants (4 g), whether structural components were omitted ({ f), whether there
“dimensional conflicts” in structural elements (§ i), whether walls were out of plumb (4 j), whether
the quality of doors was inferior and whether the architect consented thereto (| L), whether the work
met building and fire code requirements (§ n), or whether he had personal knowledge and the
expertise required to make any of the other statements or to render the expert opinions contained in
subparagraphs a through n, inlcusive. Evid. Code §§ 702, 802.
Court’s Ruling on Objection B.5. Sustained:
Overruled: Vv
B.6. “[T]hus MKC/Karkor installed drywall over the structural deficiencies - such as the absence
of shear walls, hold-downs, straps, clips, brackets and lag bolts called for in the plans - even
though me and my architect had directed MKC/Karkori not to do so until the structural
elements were inspected and approved by the engineer. And MKC/Karkori attempted to hide
its failure to install a foundation under part of the house by building a hollow wood fram and
painting it with a thin layer of cement to make ti look like the rest of the foundation. The
finished product lacked any structural strength at all, and after the wood frame rotted, was
nothing more than a cement eggshell. Further, MKC/Karkori attempted to cover up the fact
that the plumbers had installed the pipes outside the walls - because MKC/Karkori had
closed up the walls before the plumbers had completed their work - by building new walls
over the plumbing, resulting in smaller rooms and thus less livable area in the home. And
MKC/Karkori even tried to cover up its mistake in building the home partly on the
neighbor’s property...[B]ut since MKC/Karkori built the home on the other side of the
[PROPOSE] ORDER ON Def. Objections
to Pl’s Motion to
-5- Remove Mechanic’s Lienoom QI DH BW NY
a FOR SS
16
property line, the exterior walls of my home and the neighbor’s home would have
conflicted.”
Objection:
There is no foundation in the declaration as to the personal knowledge of the witness or his
qualifications to render an expert opinion as to the technical adequacy of the construction work, how
the location of the property line was determined or surrogated by him, etc.
Evid. Code § 702, 802.
Court’s Ruling on Objection B.6. Sustained:
Overruled: Vv
B.7. _“[B]Joth documented the numerous errors and door quality of MKC/Karkori’s work”
Objection:
The attached Exhibits are hearsay as to whatever opinion these persons might have had and
as to their expertise, and the witness’s statement interpreting the report is double hearsay at best, and
misstates the exhibits, which do not mention poor quality.
Evid. Code § 1200(b).
Court’s Ruling on Objection B.7. Sustained:
Overruled: Vv
B.8. “By December 25, 2007, the home was only about 50% done”
Objection:
The statement lacks foundation in the personal knowledge or demonstrated expertise and
expert qualifications of the witness, and does not contain evidentiary facts. A declaration stating
conclusions or ultimate facts, rather than evidentiary facts, are not sufficient to prove the statement
or ultimate fact asserted. See 6 Witkin, California Procedure (4" Ed.), Proceedings Without Trial,
§ 205.
[PROPOSE] ORDER ON Def. Objections
to PI’s Motion to
-6- Remove Mechanic’s Lieneo wen Au FF wWwN
NON RO a
RBPRNRRRBBRESGeSBARAARTBHR=AS
Evid. Code § 702, 802.
Court’s Ruling on Objection B.8. Sustained:
Overruled: ¥v
B.9. “[T]he unpaid balance remaining on the contract amount is thus $16,120.”
Objection: The calculations made to reach the conclusion as to what is purportedly owed or left
unspent of the original contract sum is irrelevant as to what is owed to the Defendants for their work
on the original contract and for extras etc, as the witness admits he spent over $100,000 for purposes
other than to pay Mr. Karkori, and there is nothing to show these sums were paid for work under the
original contract, extras, furniture or what.
Evid. Code § 350
Court’s Ruling on Objection B.9. Sustained:
- Overruled: V
Cc. Derman Supplemental Declaration
C.1. “[I] have personal knowledge of the following facts and could and would testify competently
thereto if called as witness”
Objection: This state fails to state facts supporting the witness’s personal knowledge of any
subsequent facts stated later in the C.C.P. § 437c(d); Evid. Code § 702, The bare
conclusory statement or assertion that the declarant has personal knowledge does not
prove that he or she has personal knowledge of the facts asserted elsewhere in the
declaration. The text of the affidavit must affirmatively show how the witness
obtained that personal knowledge, if any. See 6 Witkin, California Procedure (4
Ed.), Proceedings Without Trial, § 203.
Court’s Ruling on Objection C.1. Sustained:
Overruled: Vv
[PROPOSE] ORDER ON Def. Objections
to Pl’s Motion to
-7- Remove Mechanic’s LienoO eo YN DAH RF WN
Doe Be Be ee ee Re ee
RBRRRRPBRESSCRDWIABDEBEHE S
C.2. “Attached here as Exhibit H...on All Bill paid Affadavit... indicating that ... there were no
debts owed on this project...”
Objection:
The Exhibit is irrelevant as to the issue of the validity of Defendants’ lien, as it only states
that Defendants had paid all their bills to suppliers, after contractors, not that Mr. Derman had fully
paid Defendants. Furthermore, it does not operate as a lien release, as Civil Code § 3262 (however
limited Progress Payment Releases may be, by statutory design), and any attempt to obtain a release
in any other manner or form is “null and void.” Civil Code § 3262(a) & (b).
Evid. Code § 350.
Court’s Ruling on Objection C.2. Sustained:
Overruled:
C.3. “{All but three...were...corrections that MK C/Karkori had to make because it did not follow
the architectural plans or constructed incompetently...”
Objection:
The attached Exhibit D is hearsay as to whether Mr. Wolff said the job had been idle
for several weeks, does not show the witness had personal knowledge of the facts, is not an
admission, and is irrelevant, as the issue is whether all work on the job by all contractors and
subcontractors and the owner’s own subcontractors had ceased for 60 days plus 90 day under Civil
§§ 3086( c) & 3115.
Evid. Code § 702
The argument in Plaintiff's Reply Brief (p.3) misstates the law. Showplace Square Loft Co.,
LLC v. Primecore Mortg. Trust, Inc. (In re Showplace Square Loft Co., LLC) (BK.. N.D. Cal. 2003)
289 B.R. 403, 408; W.F. Hayward Co. v. Transamerica Ins. Co.(1993) 16 Cal.App.4th 1101, 20
Cal.Rptr.2d 468, 473; ("cessation" is a "complete work stoppage" and means "work by all trades
[PROPOSE] ORDER ON Def. Objections
to Pl’s Motion to
-8- Remove Mechanic’s LienCwm NAH BF wWN A
wN NY NY KN HS] Be Be es ee Re ee
RPeRRBERKRTSSEaREAAAREHH AS
has ceased on the project").
Plaintiff's opening memo also admits he has had another contractor working on the job (p.1,
L14, p.4, L26, p.5, L2) Exhibit B to Mr. Rlebli’s opening Declaration instructs Defendants to
continue their work after January 1, 2008. (J 1, 3 &5, p.6, J 1).
Plaintiff's opening declaration irrevocably admits Karkori did work after January 31, 2008
(p.5, LL 8-10), that he had hired another contractor (p.5, L13) and that he hired others to do
plumbing, flooring, cabinets (p.5, L16-18); See also Complaint § 31, 36.
Court’s Ruling on Objection C.3. Sustained:
Overruled: V
D. Objections to Rlebli Supplemental Declarations.
D.1. “{I] have personal knowledge of the following facts and could and would testify competently
thereto if called as witness”
Objection:
This state fails to state facts supporting the witness’s personal knowledge of any subsequent
facts stated later in the C.C.P. § 437c(d); Evid. Code § 702, The bare conclusory statement or
assertion that the declarant has personal knowledge does not prove that he or she has personal
knowledge of the facts asserted elsewhere in the declaration. The text of the affidavit must
affirmatively show how the witness obtained that personal knowledge, if any. See 6 Witkin,
California Procedure (4" Ed.), Proceedings Without Trial, § 203.
Court’s Ruling on Objection D.1. Sustained:
Overruled: v
D.2. “Attached hereto...is...the September 9, 2005 lien...”
Objection:
[PROPOSE] ORDER ON Def. Objections
to Pl’s Motion to
-9- Remove Mechanic’s LienCoO wm NADH FB WN
The statement contradicts the date of the attached Exhibit F, which is September 9, 2008.
The statement and the attached Exhibit are irrelevant to the motion to remove the June 2008 lien.
There is no motion pending to remove the September 2008 mechanic’s lien, and issue of the
validity of the 2008 mechanic’s lien is subject to binding arbitration per the contract between the
parties, as stated in Defendants pending Petition Compel Arbitration, which we hereby incorporate
by reference herein.
Evid. Code § 350.
Court’s Ruling on Objection D.2. Sustained:
Overruled:
D.4. “[I] found it to be 140 days...I also...found it to be 192 days.”
Objection:
Irrelevant to the issue of the validity of the lien that is the subject of this motion or any other
lien, and because the validity of the liens have been submitted by the parties to binding arbitration
per the forms of their contract, as argued above. These dates and elapsed time are also irrelevant
because Dependants have not established the date (if any) when all work had ceased on the property
for 60 days or more, per Civil Code § 3086 (c).
The issue is whether all work on the job by all contractors and subcontractors and the
owner’s own subcontractors had ceased for 60 days plus 90 days under Civil §§ 3086(c) & 3115
Evid. Code § 350.
The argument in Plaintiffs Reply Brief (p.3) on this point misstates the law. Showplace
Square Loft Co., LLC v. Primecore Mortg. Trust, Inc. (Inre Showplace Square Loft Co., LLC) (BK..
N.D. Cal. 2003) 289 B.R. 403, 408; W.F. Hayward Co. v. Transamerica Ins. Co.(1993) 16
Cal.App.4th 1101, 20 Cal.Rptr.2d 468, 473; (""cessation" is a "complete work stoppage" and means
"work by all trades has ceased on the project").
[PROPOSE] ORDER ON Def. Objections
to Pl’s Motion to
-10- Remove Mechanic’s Lienoo OU ew ND HN F&F YW NY
Plaintiff's opening memo also admitted Plaintiff has had another contractor working on the
job (p.1, L14, p.4, L26, p.5, L2) Exhibit B to Mr. Rlebli’s opening Declaration instructs Defendants
to continue their work. (J 1, 3 &5, p.6, § 1) ‘Plaintiff's opening declaration irrevocably admits
Karkori did work after January 31, 2008 (p.5, LL 8-10), that Plaintiff had hired another contractor
(p.5, L13) and that Plaintiff hired others to do plumbing, flooring, cabinets (p.5, L16-18); Complaint
431, 36.
Court’s Ruling on Objection D.4. Sustained:
Overmiet:
Dated: October J , 2008 SO ORDERED:
Judge of the Superior Court
_ PAUL H ALVARADO
COPE L7GFIY >?
)erman ys Korkon, ‘
[PROPOSE] ORDER ON Def. Objections
to Pl’s Motion to
-11- Remove Mechanic’s Lien
Preview
MATA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Oct-29-2008 9:17 am Case Number: CGC-08-479247 Filing Date: Oct-29-2008 9:16 Juke Box: 001 Image: 02298997 ORDER WAYNE DERMAN VS. M.KARKORI CONSTRUCTION, INC., A PURPORATED et al 001002298997 Instructions: Please place this sheet on top of the document to be scanned.GEORGE WILLIAM WOLFF (81126) The Law Office of George W. Wolff San Francisco County Superior Court 655 Montgomery Street, suite 1050 P.O, Box 36749, OCT 2 9 2008 San Francisco, CA 94126-6749 Telephone(415) 788-1881 GORDON PARK-LI, Clerk Telecopier: (415)788-0880 BY: . Leap daha Attorneys for Cross-Complainant/Petitioner M. Kakori Construction, Inc.. Deputy Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO Wayne Derman, an individual NO. CGC-08-479247 Plaintiff, I sere a ORDER ON DEFENDANTS’ OBJECTIONS TO vs PLAINTIFF’S EVIDENCE ON MOTION TO REMOVE MECHANICS LIEN M. Karkori Construction Inc, a California Corporation; Mostafa Karkori, an individual, et al. | Date: October 22, 2008 Time: 9:30 a.m. Defendants. Dent: 301 Judge: Hon. Peter J. Busch Filed: August 28, 2008 And related Cross-Complaint and Petition to Trial Date: None Compel Arbitration This Matter coming to be Heard on Plaintiffs Motion to Remove Lien, and Defendants’ Objections to Plaintiff s Evidence in support of such Motion, the Court makes the following rulings as Defendants Objections to Evidence: A. Objections to Riebli opening Declaration: A.l. _ “[I] have personal knowledge of the following facts and could and would testify competently thereto if called as witness” Objection: This state fails to state facts supporting the witness’s personal knowledge of any subsequent facts stated later in the C.C.P. § 437c(d); Evid. Code § 702. The bare conclusory statement or assertion that the declarant has personal knowledge does not prove that he or she has [PROPOSE] ORDER ON Def. Objections to Pl’s Motion to Remove Mechanic’s LienSOU wm ND NH BF WN = NN KR NN NN NN Be Be Be Be ew ee ew He eH ond nA PF HH KF SDMA DH BF WN personal knowledge of the facts asserted elsewhere in the declaration. The text of the affidavit must affirmatively show how the witness obtained that personal knowledge, if any. See 6 Witkin, California Procedure (4" Ed.), Proceedings Without Trial, § 203. Court’s Ruling on Objection A.1. Sustained: A.4. “[M]KC/Karkori ha[d] been ‘holding the job idle for several weeks now’”. Objection: The attached Exhibit C is hearsay as to whether Mr. Wolff said the job had been idle for several weeks, does show the witness had personal knowledge of the facts, is not an admission, and is irrelevant, as the issue is whether all work on the job by all contractors and subcontractors and the owner’s own subcontractors had ceased for 60 days plus 90 day under Civil §§ 3086(c); 3115 Evid. Code § 702 The argument in Plaintiff's Reply Brief (p.3) misstates the law. Showplace Square Loft Co., LLC vy, Primecore Mortg. Trust, Inc. (Inre Showplace Square Loft Co., LLC) (BK.. N.D. Cal. 2003) 289 B.R. 403, 408; W.F. Hayward Co. v. Transamerica Ins. Co.(1993) 16 Cal.App.4th 1101, 20 Cal.Rptr.2d 468, 473; ("cessation" is a "complete work stoppage" and means "work by all trades has ceased on the project"). Plaintiffs opening memo admits he has had another contractor working on the job (p.1,L14, p.4, L26, p.5, L2) Exhibit B to Mr. Rlebli’s opening Declaration instructs Defendants to continue their work after January 1, 2008. ({ 1, 3 &5, p.6, § 1). Plaintiff's opening declaration also irrevocably admits Karkori did work after January 31, 2008 (p.5, LL 8-10), that Plaintiff had hired another contractor (p.5, L13) and that Plaintiff hired others to do plumbing, flooring, cabinets (p.5, L16-18); See also Complaint § 31, 36. [PROPOSE] ORDER ON Def. Objections to Pl’s Motion to -2- Remove Mechanic’s LienoO ON DH RF WN 11 Court’s Ruling on Objection A.4. Sustained: Overruled: ff A.5. “[M]JKC/Karkor had been ‘ordered by the owner...to stop work for over a month and is complying with it’”. Objection: The attached Exhibit D is hearsay as to whether Mr. Wolff said the job had been idle for several weeks, does not show the witness had personal knowledge of the facts, is not an admission, and is irrelevant, as the issue is whether all work on the job by all contractors and subcontractors and the owner’s own subcontractors had ceased for 60 days plus 90 day under Civil §§ 3086(c); 3115 Evid. Code § 702 The argument in Plaintiff’s Reply Brief (p.3) misstates the law. Showplace Square Loft Co., LLC v. Primecore Mortg. Trust, Inc. (In re Showplace Square Loft Co., LLC) (BK..N.D. Cal. 2003) 289 B.R. 403, 408; W.F. Hayward Co. v. Transamerica Ins. Co.(1993) 16 Cal.App.4th 1101, 20 Cal.Rptr.2d 468, 473; ("cessation" is a "complete work stoppage” and means "work by all trades has ceased on the project"). Plaintiffs opening memo admits Plaintiffhas had another contractor working on the job (p.1, L14, p.4, L26, p.5, L2) Exhibit B to Mr. Rlebli’s opening Declaration instructs Defendants to continue their work after January 1, 2008. (4 1, 3 &5, p.6, § 1). Plaintiff's opening declaration irrevocably admits Karkori did work after January 31, 2008 (p.5, LL 8-10), that Plaintiff had hired another contractor (p.5, L13) and that Plaintiff hired others to do plumbing, flooring, cabinets (p.5, L16-18); See also Complaint § 31, 36. Court’s Ruling on Objection A.5. Sustained: Overruled: 4 [PROPOSE] ORDER ON Def. Objections to Pl’s Motion to -3- Remove Mechanic’s Lienom NIN DH PF WH = RON a a a RPNRRBRBBRESSExRX VIA GDBEBEHKHAS A.6. “Mr. Sykes has asked Mr. Wolff to have MKC/Karkori remove its mechanic’s lien but, according to Mr. Wolff, MKC/Karkori refuses”, Objection: Hearsay to conversation between parties other than declaration, does not show declarant had personal knowledge. Evid. Code § 702. This statement fails to state facts supporting the witness’s personal knowledge of any subsequent facts stated later in the C.C.P. § 437c(d); Evid. Code § 702. Court’s Ruling on Objection A.6. Sustained: Overruled: B. Objections to Derman opening Declaration B.1. “[I] have personal knowledge of the following facts and could and would testify competently thereto if called as witness” Objection: This state fails to state facts supporting the witness’s personal knowledge of any subsequent facts stated later in the C.C.P. § 437c(d); Evid. Code § 702, The bare conclusory statement or assertion that the declarant has personal knowledge does not prove that he or she has personal knowledge of the facts asserted elsewhere in the declaration. The text of the affidavit must affirmatively show how the witness obtained that personal knowledge, if any. See 6 Witkin, California Procedure (4 Ed.), Proceedings Without Trial, § 203. Court’s Ruling on Objection B.1. Sustained: Overruled: VZ B.5. “[MJKC/Karkori made numerous mistakes. It:[subparagraphs a. to n.]” Objections: Again, there is no foundation in the declarations showing the personal knowledge to know [PROPOSE] ORDER ON Def. Objections to PI’s Motion to -4- Remove Mechanic’s Lienoem YN Dn BF WN | NN YN NN NR NK ee Bee Be Se ese Be Be oN AA FF oBNnH YF SOON DH FE WN KH SO or qualifications of the witness to make the following statements of fact or to render on expert opinion as to whether reinforcing steel and roughins were properly installed ({ b), whether the foundation was properly installed (§ d.), whether walls were properly attached to the foundation ({ e), whether framing and staircases were properly installed or the witness heard the architect’s statement to Defendants (4 g), whether structural components were omitted ({ f), whether there “dimensional conflicts” in structural elements (§ i), whether walls were out of plumb (4 j), whether the quality of doors was inferior and whether the architect consented thereto (| L), whether the work met building and fire code requirements (§ n), or whether he had personal knowledge and the expertise required to make any of the other statements or to render the expert opinions contained in subparagraphs a through n, inlcusive. Evid. Code §§ 702, 802. Court’s Ruling on Objection B.5. Sustained: Overruled: Vv B.6. “[T]hus MKC/Karkor installed drywall over the structural deficiencies - such as the absence of shear walls, hold-downs, straps, clips, brackets and lag bolts called for in the plans - even though me and my architect had directed MKC/Karkori not to do so until the structural elements were inspected and approved by the engineer. And MKC/Karkori attempted to hide its failure to install a foundation under part of the house by building a hollow wood fram and painting it with a thin layer of cement to make ti look like the rest of the foundation. The finished product lacked any structural strength at all, and after the wood frame rotted, was nothing more than a cement eggshell. Further, MKC/Karkori attempted to cover up the fact that the plumbers had installed the pipes outside the walls - because MKC/Karkori had closed up the walls before the plumbers had completed their work - by building new walls over the plumbing, resulting in smaller rooms and thus less livable area in the home. And MKC/Karkori even tried to cover up its mistake in building the home partly on the neighbor’s property...[B]ut since MKC/Karkori built the home on the other side of the [PROPOSE] ORDER ON Def. Objections to Pl’s Motion to -5- Remove Mechanic’s Lienoom QI DH BW NY a FOR SS 16 property line, the exterior walls of my home and the neighbor’s home would have conflicted.” Objection: There is no foundation in the declaration as to the personal knowledge of the witness or his qualifications to render an expert opinion as to the technical adequacy of the construction work, how the location of the property line was determined or surrogated by him, etc. Evid. Code § 702, 802. Court’s Ruling on Objection B.6. Sustained: Overruled: Vv B.7. _“[B]Joth documented the numerous errors and door quality of MKC/Karkori’s work” Objection: The attached Exhibits are hearsay as to whatever opinion these persons might have had and as to their expertise, and the witness’s statement interpreting the report is double hearsay at best, and misstates the exhibits, which do not mention poor quality. Evid. Code § 1200(b). Court’s Ruling on Objection B.7. Sustained: Overruled: Vv B.8. “By December 25, 2007, the home was only about 50% done” Objection: The statement lacks foundation in the personal knowledge or demonstrated expertise and expert qualifications of the witness, and does not contain evidentiary facts. A declaration stating conclusions or ultimate facts, rather than evidentiary facts, are not sufficient to prove the statement or ultimate fact asserted. See 6 Witkin, California Procedure (4" Ed.), Proceedings Without Trial, § 205. [PROPOSE] ORDER ON Def. Objections to PI’s Motion to -6- Remove Mechanic’s Lieneo wen Au FF wWwN NON RO a RBPRNRRRBBRESGeSBARAARTBHR=AS Evid. Code § 702, 802. Court’s Ruling on Objection B.8. Sustained: Overruled: ¥v B.9. “[T]he unpaid balance remaining on the contract amount is thus $16,120.” Objection: The calculations made to reach the conclusion as to what is purportedly owed or left unspent of the original contract sum is irrelevant as to what is owed to the Defendants for their work on the original contract and for extras etc, as the witness admits he spent over $100,000 for purposes other than to pay Mr. Karkori, and there is nothing to show these sums were paid for work under the original contract, extras, furniture or what. Evid. Code § 350 Court’s Ruling on Objection B.9. Sustained: - Overruled: V Cc. Derman Supplemental Declaration C.1. “[I] have personal knowledge of the following facts and could and would testify competently thereto if called as witness” Objection: This state fails to state facts supporting the witness’s personal knowledge of any subsequent facts stated later in the C.C.P. § 437c(d); Evid. Code § 702, The bare conclusory statement or assertion that the declarant has personal knowledge does not prove that he or she has personal knowledge of the facts asserted elsewhere in the declaration. The text of the affidavit must affirmatively show how the witness obtained that personal knowledge, if any. See 6 Witkin, California Procedure (4 Ed.), Proceedings Without Trial, § 203. Court’s Ruling on Objection C.1. Sustained: Overruled: Vv [PROPOSE] ORDER ON Def. Objections to Pl’s Motion to -7- Remove Mechanic’s LienoO eo YN DAH RF WN Doe Be Be ee ee Re ee RBRRRRPBRESSCRDWIABDEBEHE S C.2. “Attached here as Exhibit H...on All Bill paid Affadavit... indicating that ... there were no debts owed on this project...” Objection: The Exhibit is irrelevant as to the issue of the validity of Defendants’ lien, as it only states that Defendants had paid all their bills to suppliers, after contractors, not that Mr. Derman had fully paid Defendants. Furthermore, it does not operate as a lien release, as Civil Code § 3262 (however limited Progress Payment Releases may be, by statutory design), and any attempt to obtain a release in any other manner or form is “null and void.” Civil Code § 3262(a) & (b). Evid. Code § 350. Court’s Ruling on Objection C.2. Sustained: Overruled: C.3. “{All but three...were...corrections that MK C/Karkori had to make because it did not follow the architectural plans or constructed incompetently...” Objection: The attached Exhibit D is hearsay as to whether Mr. Wolff said the job had been idle for several weeks, does not show the witness had personal knowledge of the facts, is not an admission, and is irrelevant, as the issue is whether all work on the job by all contractors and subcontractors and the owner’s own subcontractors had ceased for 60 days plus 90 day under Civil §§ 3086( c) & 3115. Evid. Code § 702 The argument in Plaintiff's Reply Brief (p.3) misstates the law. Showplace Square Loft Co., LLC v. Primecore Mortg. Trust, Inc. (In re Showplace Square Loft Co., LLC) (BK.. N.D. Cal. 2003) 289 B.R. 403, 408; W.F. Hayward Co. v. Transamerica Ins. Co.(1993) 16 Cal.App.4th 1101, 20 Cal.Rptr.2d 468, 473; ("cessation" is a "complete work stoppage" and means "work by all trades [PROPOSE] ORDER ON Def. Objections to Pl’s Motion to -8- Remove Mechanic’s LienCwm NAH BF wWN A wN NY NY KN HS] Be Be es ee Re ee RPeRRBERKRTSSEaREAAAREHH AS has ceased on the project"). Plaintiff's opening memo also admits he has had another contractor working on the job (p.1, L14, p.4, L26, p.5, L2) Exhibit B to Mr. Rlebli’s opening Declaration instructs Defendants to continue their work after January 1, 2008. (J 1, 3 &5, p.6, J 1). Plaintiff's opening declaration irrevocably admits Karkori did work after January 31, 2008 (p.5, LL 8-10), that he had hired another contractor (p.5, L13) and that he hired others to do plumbing, flooring, cabinets (p.5, L16-18); See also Complaint § 31, 36. Court’s Ruling on Objection C.3. Sustained: Overruled: V D. Objections to Rlebli Supplemental Declarations. D.1. “{I] have personal knowledge of the following facts and could and would testify competently thereto if called as witness” Objection: This state fails to state facts supporting the witness’s personal knowledge of any subsequent facts stated later in the C.C.P. § 437c(d); Evid. Code § 702, The bare conclusory statement or assertion that the declarant has personal knowledge does not prove that he or she has personal knowledge of the facts asserted elsewhere in the declaration. The text of the affidavit must affirmatively show how the witness obtained that personal knowledge, if any. See 6 Witkin, California Procedure (4" Ed.), Proceedings Without Trial, § 203. Court’s Ruling on Objection D.1. Sustained: Overruled: v D.2. “Attached hereto...is...the September 9, 2005 lien...” Objection: [PROPOSE] ORDER ON Def. Objections to Pl’s Motion to -9- Remove Mechanic’s LienCoO wm NADH FB WN The statement contradicts the date of the attached Exhibit F, which is September 9, 2008. The statement and the attached Exhibit are irrelevant to the motion to remove the June 2008 lien. There is no motion pending to remove the September 2008 mechanic’s lien, and issue of the validity of the 2008 mechanic’s lien is subject to binding arbitration per the contract between the parties, as stated in Defendants pending Petition Compel Arbitration, which we hereby incorporate by reference herein. Evid. Code § 350. Court’s Ruling on Objection D.2. Sustained: Overruled: D.4. “[I] found it to be 140 days...I also...found it to be 192 days.” Objection: Irrelevant to the issue of the validity of the lien that is the subject of this motion or any other lien, and because the validity of the liens have been submitted by the parties to binding arbitration per the forms of their contract, as argued above. These dates and elapsed time are also irrelevant because Dependants have not established the date (if any) when all work had ceased on the property for 60 days or more, per Civil Code § 3086 (c). The issue is whether all work on the job by all contractors and subcontractors and the owner’s own subcontractors had ceased for 60 days plus 90 days under Civil §§ 3086(c) & 3115 Evid. Code § 350. The argument in Plaintiffs Reply Brief (p.3) on this point misstates the law. Showplace Square Loft Co., LLC v. Primecore Mortg. Trust, Inc. (Inre Showplace Square Loft Co., LLC) (BK.. N.D. Cal. 2003) 289 B.R. 403, 408; W.F. Hayward Co. v. Transamerica Ins. Co.(1993) 16 Cal.App.4th 1101, 20 Cal.Rptr.2d 468, 473; (""cessation" is a "complete work stoppage" and means "work by all trades has ceased on the project"). [PROPOSE] ORDER ON Def. Objections to Pl’s Motion to -10- Remove Mechanic’s Lienoo OU ew ND HN F&F YW NY Plaintiff's opening memo also admitted Plaintiff has had another contractor working on the job (p.1, L14, p.4, L26, p.5, L2) Exhibit B to Mr. Rlebli’s opening Declaration instructs Defendants to continue their work. (J 1, 3 &5, p.6, § 1) ‘Plaintiff's opening declaration irrevocably admits Karkori did work after January 31, 2008 (p.5, LL 8-10), that Plaintiff had hired another contractor (p.5, L13) and that Plaintiff hired others to do plumbing, flooring, cabinets (p.5, L16-18); Complaint 431, 36. Court’s Ruling on Objection D.4. Sustained: Overmiet: Dated: October J , 2008 SO ORDERED: Judge of the Superior Court _ PAUL H ALVARADO COPE L7GFIY >? )erman ys Korkon, ‘ [PROPOSE] ORDER ON Def. Objections to Pl’s Motion to -11- Remove Mechanic’s Lien