Preview
E-FILED
'WANGER JONES HELSLEY PC 3/2/2021 2:44 PM
265 E. River Park Circle, Suite 310
Superior Court of California
Fresno, CA 93720
Telephone: (559) 233-4800 County of Fresno
Facsimile: (559) 233-9330 By: E Alvarado, Deputy
Kurt F. Vote, # 160496
kvote@wijhattorneys.com
Marisa L. Balch, # 258332
mbalch@wihattorneys.com
Steven K. Vote #309152
vote@wihattorneys.com
Attorneys for: Plaintiff FCERA REALTY GROUP, LLC, a California limited liability company
10 SUPERIOR COURT OF CALIFORNIA
11 COUNTY OF FRESNO, CENTRAL DIVISION
12 FCERA REALTY GROUP, LLC, a California Case No. 19CECG01169
limited liability company,
13
MEMORANDUM OF POINTS AND
14 Plaintiff, AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL DEPOSITION
15 Vv. TESTIMONY OF AMY CASTRO, ETC.
16 BOARDWALK AT PALM BLUFFS, LP, a [Accompanying Documents: Notice of Motion
California limited partnership; BOARDWALK and Motion; Separate Statement; Declaration
17
AT PALM BLUFFS II, LP, a California limited of Kurt F. Vote; [Proposed] Order]
18 partnership; TARGET CONSTRUCTORS,
INC., a California corporation; ALCAL Hearing:
19 SPECIALTY CONTRACTING, INC., a Nevada
corporation; PETERS ROOFING, INC., a Date: August 12, 2021
20 California corporation; JOHNSON FIRE Time: 3:30 p.m.
21 PROTECTION INCORPORATED, a California Dept.: 403
corporation; A. COLMENERO PLASTERING, Judge: Kristi Culver Kapetan
22 INC., a California corporation; B&L
MECHANICAL, INC. and DOES 1-10,
23 inclusive,
24 Defendants.
25
26
27
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC.
Plaintiff FCERA REALTY GROUP, LLC (“FCERA” or “Plaintiff’) submits the
following Memorandum of Points and Authorities in support of its Motion to Compel Deposition
Testimony of Amy Castro and for other relief.
I
INTRODUCTION
On November 20, 2020, FCERA took the deposition of Amy Castro (“Ms. Castro”), the
contract administrator for Defendant Target Constructors (“Target” or “Defendant”) in this action. At
her deposition, Ms. Castro was instructed not to answer, and failed to provide any answer to, a series
of questions concerning whether she had performed any comparison of the prevailing wage reports she
10 received from various subcontractors to the prevailing wage costs Target had provided to Boardwalk
11 at Palm Bluffs, LP (“Boardwalk”). Target’s counsel asserted that any information about analysis or
12 comparison conducted after the inception of this litigation, including whether Ms. Castro even
13 performed such actions, was subject to the attorney-client privilege and attorney work product
14 doctrine. On the contrary, this information is not privileged and directly relevant to the substance of
15 FCERA’s claims.
16 In its operative Second Amended Complaint (“SAC”), FCERA has asserted a claim
17 against Target for intentional misrepresentation. This cause of action is based primarily on the actions
18 of representatives of Target, including Ms. Castro. Specifically, FCERA has alleged that Target made
19 misrepresentations concerning the additional cost to pay prevailing wages on the underlying
20 construction project. Accordingly, discovery into Ms. Castro’s actions, as a representative of Target,
21 to verify or otherwise investigate whether the actual costs matched Target’s prior representations is
22 directly relevant to this action.
23 Target’s objections to this line of inquiry on the grounds of the attorney-client privilege
24 and the attorney work product are unfounded. The attorney-client privilege does not extend to facts
25 known by a party after consulting with an attorney. Further, facts known by a party do not become
26 privileged simply because of ongoing litigation or that they may have been subsequently
27 communicated to an attorney. Moreover, the information sought is specifically limited to Ms. Castro’s
28 own investigation and not any reports or analysis created by Target’s attorneys or their agents.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC.
In short, Target cannot meet its burden of establishing the privileges asserted and that
the information is not subject to discovery. Despite FCERA’s attempts to meet and confer, including
on the record at Ms. Castro’s deposition — which was refused, Target has continued to assert its
improper objections. For this reason, FCERA respectfully requests that the Court grant this Motion in
its entirety and issue an Order requiring Ms. Castro to answer the questions at issue in this Motion at a
subsequent deposition session; produce any responsive documents related to this line of inquiry that
were not produced by Ms. Castro; awarding FCERA its attorneys’ fees incurred in bringing this
Motion; and that Target pay the costs associated with any follow up deposition.
IL.
10 LAW AND ARGUMENT
11 A Legal Standard.
12 Generally, “any party may obtain discovery regarding any matter, not privileged, that is
13 relevant to the subject matter involved in the pending action or to the determination of any motion
14 made in that action...” (Code Civ. Proc., § 2017.010.) “Discovery may relate to the claim or defense
15 of the party seeking discovery or of any other party to the action.” (/d.)
16 Any party may obtain relevant discovery by taking in California the oral deposition of
17 “any person, including any party to the action.” (Code Civ. Proc., § 2025.010.) “Ifa deponent fails to
18 answer any question...the party seeking discovery may move the court for an order compelling that
19 answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).) “The burden of establishing that a
20 particular matter is privileged is on the party asserting that privilege.” (San Diego Professional Ass'n
21 v. Superior Court of San Diego County (1962) 58 Cal.2d 194, 199, internal citations omitted.)
22 B FCERA Has Satisfied All Meet and Confer Requirements Prior to Filing this
23 Motion.
24 Ms. Castro’s deposition was held on or about November 20, 2020. (Declaration of
25 Kurt F. Vote in Support of Motion to Compel, served and filed herewith [the “Vote Decl.”], § 2, Exh.
26 A.) The record was completed by the court reporter on or about December 12, 2020. (Vote Decl., J
27 2.) On or about December 23, 2020, FCERA’s counsel sent certain correspondence to Target’s
28 counsel regarding the discovery dispute. (Vote Decl., 44, Exh. D.) Target’s counsel provided a brief
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC.
response maintaining the objections stated on the record at Ms. Castro’s deposition. (Vote Decl., 4,
Exh. D.)
On or about December 30, 2020, FCERA filed a Request for Pretrial Discovery
Conference regarding the dispute. (Vote Decl., § 5, Exh. E.) On January 7, 2021, Target filed an
Opposition to FCERA’s Request for Pretrial Discovery Conference. (Vote Decl., | 6, Exh. F.)
Thereafter, on January 19, 2021, the Court issued an Order permitting FCERA to proceed with the
instant Motion to Compel. (Vote Decl., § 7, Exh. G.) FCERA’s deadline to file the instant Motion
was tolled, pursuant to the Fresno County Superior Court Local Rules, between December 30, 2020
and January 19, 2021. FCERA met all meet and confer and other procedural requirements prior to
10 filing the instant Motion.
11 Cc. The Questions at Issue Seek Discoverable and Non-Privileged Information.
12 The information sought by FCERA through the questions that Ms. Castro refused to
13 answer at her deposition is directly relevant to its claims in this action and is the proper subject of
14 discovery. Further, the information sought is foundational and does not seek any privileged
15 communications. Ms. Castro, or Target on her behalf, cannot establish any applicable privilege.
16 Accordingly, answers to the questions at issue should be compelled.
17 1 The Information Sought is Discoverable in Lieu of Any Applicable Privilege.
18 Any party may obtain discovery regarding “any matter, not privileged, that is relevant
19 to the subject matter involved in the pending action or to the determination of any motion made in that
20 action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to
21 the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) Here, FCERA has asserted a
22 claim for intentional misrepresentation against Target related to its representations regarding the
23 increased costs involved in the underlying project related to the payment of prevailing wages. (See,
24 Vote Decl., § 8, Exh. H; SAC, ff 18, 75, 76.) Further, FCERA has alleged that Ms. Castro was one of
25 the parties making the representations at issue on behalf of Target. (Vote Decl., { 8, Exh. H; SAC, 9
26 75,77.) The extent to which the representations made by Target were actually false, in addition to any
27 and all efforts by Target to determine the veracity of the representations, are clearly relevant to the
28 underlying claims and subject to discovery in lieu of any applicable privilege.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC.
2. The Information Sought is Not Subject to the Attorney-Client Privilege.
At Ms. Castro’s deposition, Target’s counsel interposed objections in response to every
question at issue in this Motion on the grounds that the information sought was subject to the attorney-
client privilege. On the contrary, FCERA’s questions concern only foundational information and Ms.
Castro’s own investigation of the underlying facts. Target cannot meet its burden of demonstrating
that this privilege applies here.
The party claiming the privilege bears the burden of demonstrating preliminary facts
essential to the establishment of the privilege and that the information sought is confidential. (HLC
Properties, Ltd. v. Superior Court (Crosby) (2005) 35 Cal.4th 54, 59.) For the purpose of establishing
10 the attorney-client privilege, a “communication” encompasses almost any acts done by the client in the
11 sight of the attorney that is intended to convey information. (City & County of S.F. v. Superior Court
12 (1951) 37 Cal.2d 227, 235-236 [italics added].) However, the foundational facts upon which the
13 attorney-client privilege depends—i.e., the existence of an attorney relationship, or the fact that the
14 communications were made in the course of that relationship—or ordinarily not regarded as
15 confidential and, hence, not privileged. (Coy v. Superior Court (Wolcher) (1962) 58 Cal.2d 210, 219.)
16 The attorney-client privilege only applies to the “confidential communications” between the attorney
17 and client. Therefore, the privilege cannot be invoked to block questions about facts that are known to
18 clients before they consulted with an attorney or facts made known to them between and after
19 consultations with the attorney. (State Farm Fire & Cas. Co. v. Superior Court (Taylor) (1997)
20 54 Cal.App.4th 625, 639 [factual information known to the client is not made privileged simply by
21 turning it over to the attorney].) Likewise, clients cannot create a privilege by transmitting otherwise
22 non-confidential information to the attorney. (Suezaki v. Superior Court (Crawford) (1962) 58 Cal.2d
23 166, 176.) Documents created by a party, even including witness statements, do not become
24 privileged communications (or work product) merely because they are turned over to counsel.
25 (Wellpoint Health Networks v. Superior Court (McCombs) (1997) 59 Cal.App.4th 110, 119.)
26 In addition, foundational questions do not fall within the scope of the attorney-client
27 privilege. (Alpha Beta Co. v. Superior Court (Sundy) (1984) 157 Cal.App.3d 818, 828-829.) Even
28 where the attorney-client privilege exists, it may not be used to shield facts, as opposed to
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC.
communications, from discovery. (Zurich American Ins. Co. v. Superior Court (Watts) (2007)
155 Cal.App.4th 1485, 1504.) Furthermore, a party may be examined in a deposition as to the facts of
the case, irrespective of whether those facts have been communicated to the attorney. (Grand Lake
Drive In, Inc. v. Superior Court (Bateman) (1960) 179 Cal.App.2d 122, 127.)
Here, as detailed in the Separate Statement of Dispute Matters filed and served
herewith, the questions at issue in Ms. Castro’s deposition do not concern information protected by the
attorney-client privilege. In fact, four (4) of the five (5) questions at issue concern whether Ms. Castro
took a particular action, including whether she compared the payroll reports from subcontractors to the
list of prevailing wage costs provided to Boardwalk. The fifth question at issue concerns discussions
10 Ms. Castro may have had with other representatives of Target and specifically limits the information
11 sought to discussions “outside the presence of counsel.” With the exception of this last question, none
12 of the other information sought concerns any discussions with any party at Target. Rather, they seek
13 information related to Ms. Castro’s investigation and analysis of foundational factual matters in this
14 case. Although the last question does relate to communications, it specifically exempts any
15 conversations in the presence of Target’s counsel that might be subject to the attorney-client privilege.
16 There is simply no basis for asserting the attorney-client privilege as to any of the information sought
17 by FCERA.
18 3. The Information Sought is Not Attorney Work Product.
19 Target also objected to certain questions, which Ms. Castro then refused to answer, on
20 the grounds that the information was protected from disclosure by the attorney work product doctrine.
21 As with Target and Ms. Castro’s assertions regarding the attorney-client privilege, there are no
22 grounds for such an objection.
23 The attorney work product doctrine forms “a qualified privilege against discovery of
24 general work product and an absolute privilege against disclosures of writings containing the
25 attorney’s impressions, conclusions, opinions, or legal theories. (State Comp. Insurance Fund v.
26 Superior Coury (People) (2001) 91 Cal.App.4th 1080, 1091.) Although work product is often
27 described as a “privilege,” attorney work product is not among the privileges which are itemized in
28 Evidence Code §§ 900, et seq. (DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 687.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC.
Work produced by an attorney, the attorney’s agents, and consultants are considered work product.
(Citizens for Ceres v. Superior Court (City of Ceres) (2013) 217 Cal.App.4th 889, 911.) However,
that does not include work produced by clients.
Information regarding events provable at trial or the identity and location of physical
evidence cannot be brought within the work product protection simply by transmitting it to counsel.
(Mack v. Superior Court (State of Ca.) (1968) 259 Cal.App.2d 7, 10.) Documents that are not
originally protected as work product do not become so merely by being transferred to an attorney.
(Laguna Beach County Water Dist. v. Superior Court (Woodhouse) (2004) 124 Cal.App.4th 1453,
1458.) A report prepared by a client—not by an attorney or his or her agents or employees—is not
10 work product of the attorney and an attorney cannot retroactively adopt the work of the client already
11 performed and convert it into his or her own. (Bank of Orient v. Superior Court (San Francisco Fed.
12 S. & L. Assn.) (1977) 67 Cal.App.3d 588, 598 [report from board of directors of corporate client not
13 protected as work product because not made by counsel].)
14 Here, Target and Ms. Castro have only asserted attorney work product protection in
15 response to the first three (3) questions described in FCERA’s Separate Statement of Disputed
16 Matters. As detailed, supra, those questions concerned whether Ms. Castro had taken particular
17 actions, to investigate or otherwise compare the actual certified payroll records from subcontractors to
18 the costs communicated to Boardwalk. The questions did not relate to the content of her analysis or
19 investigation. Assuming arguendo, however, that FCERA did inquire as to the content of Ms.
20 Castro’s analysis, it would be strictly limited to her own personal thoughts and impressions and would
21 not relate to any impressions, conclusions, or other analysis performed by Target’s counsel.
22 In sum, there are no grounds for Ms. Castro or Target to claim either the attorney-client
23 privilege or attorney work product protection with respect to the information sought. Accordingly,
24 FCERA respectfully requests that the Court grant its Motion and order Ms. Castro to answer the
25 questions at issue.
26 4. Ms. Castro Should Produce Any Documents Withheld on the Basis of Privilege.
27 FCERA included several document requests in the Amended Notice Deposition served
28 on Ms. Castro. This included Request No. 17, which sought documents related to the calculation of
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC.
prevailing wages increases for the underlying project. (Vote Decl., 4 2, Exh. B.) In response, Target,
on behalf of Ms. Castro, asserted objections based upon the attorney-client privilege and attorney work
product protection. (Vote Decl., 42, Exh. C.) It is difficult to tell from Ms. Castro’s response whether
she withheld any documents on the basis of privilege, particularly since Target failed to produce the
privilege log required by Code of Civil Procedure § 2031.240(c)(1). To the extent Ms. Castro
withheld documents on the basis of privilege, the Court should not only compel her testimony for the
reasons discussed, supra, but also order her to produce any responsive documents related to this
testimony which were previously withheld.
D. Target Constructors Has No Substantial Justification for Opposing This Motion.
10 Code of Civil Procedure § 2025.480(j) provides that the court shall impose a monetary
11 sanction:
12 “\..against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel an answer or production, unless it finds that
13 the one subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.”
14
15 (Code Civ. Proc., § 2025.480, subd. (j).) “In a variety of similar contexts, the phrase ‘substantial
16 justification’ has been understood to mean that a justification is clearly reasonable because it is well
17 grounded in both law and fact.” (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424,
18 1434.) The burden of proving “substantial justification” for its actions lies with the party opposing the
19 motion. (/d., at 1435.)
20 For the reasons detailed, supra, Target and Ms. Castro will not be able to establish the
21 application of either the attorney-client privilege or the attorney work product doctrine to the
22 deposition questions at issue. FCERA attempted to resolve the issue informally by both meet and
23 confer correspondence and the Court’s pretrial discovery conference procedure. (Vote Decl., §{ 4-6.)
24 In fact, FCERA’s counsel attempted to meet and confer with Target’s counsel as to these issues on the
25 record at the deposition, but was repeatedly rebuffed. (Vote Decl., | 2, Exh. A, 130:25-131:12.)
26 There is simply no factual or legal justification for Ms. Castro’s refusal to answer the questions at
27 issue.
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC.
FCERA was forced to incur attorneys’ fees and costs in drafting the instant Motion.
Specifically, FCERA has incurred $2,652.50 in attorneys’ fees as of the filing of this Motion, as
detailed in the Declaration of Kurt F. Vote filed and served herewith. (Vote Decl., ff 10-11.) It is
expected that FCERA will incur additional attorneys’ fees related to the preparation of a Reply and
appearance at the hearing on this matter, if any, which will be updated in a subsequent declaration.
(Vote Decl., § 17.) Further, it is expected that there will be costs associated with a further deposition
of Ms. Castro. (Vote Decl., § 18.) These costs should be borne by Target only, as the additional
deposition would not have been necessary but for its unjustified objections. Accordingly, FCERA
requests that the Court order Target to pay FCERA’s reasonable attorneys’ fees and costs in preparing
10 this Motion and any costs associated with a subsequent deposition.
it Til.
12 CONCLUSION
13 For all of the foregoing reasons, for those to be set forth in the Reply (if any), and for
14 the reasons to be presented at oral argument in this matter, FCERA requests that this Court compel
15 Ms. Castro to answer the questions asked of her in her deposition and identified in the Separate
16 Statement filed herewith and to produce responsive documents in connection therewith, and award
17 FCERA attorneys’ fees in the amount of $2,652.50, as well as additional fees related to time spent
18 between now and the time of the hearing, which will be set forth in the moving party’s Reply papers.
19
DATED: MARCH 2, 2021 WANGER JONES HELSLEY PC
20
21
By
22 Kurt F. Vote
23 Marisa L. Balch
Steven K. Vote
24 Attorneys for Plaintiff
FCERA REALTY GROUP, LLC
25
26
27
28
{8639/002/01208557.DOCX} 9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC.
PROOF OF SERVICE
My business address is 265 East River Park Circle, Suite 310, Post Office Box 28340,
Fresno, California 93729. Iam employed in Fresno County, California. I am over the age of 18
years and am not a party to this case.
On the date indicated below, I served the foregoing document(s) described as
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC. on all interested parties
in this action by placing a true copy thereof enclosed in sealed envelopes addressed as follows:
SEE ATTACHED SERVICE LIST
X (BY MAIL) lam readily familiar with the business’ practice for collection and
10 processing of correspondence for mailing, and that correspondence, with postage
thereon fully prepaid, will be deposited with the United States Postal Service on
11 the date noted below in the ordinary course of business, at Fresno, California.
12Zz
(BY FACSIMILE) 1 caused such document(s) to be transmitted to the
13 addressee(s) facsimile number(s) noted above. The facsimile machine | used
complied with Rule 2003(3) and the transmission was reported as complete and
14 without error.
15 (BY ELECTRONIC SERVICE) I caused the foregoing document(s) to be
16 scanned into pdf format and sent via electronic mail to the electronic mail
address(es) of the designated addressee(s).
17
(BY OVERNIGHT COURIER) I caused the above-referenced envelope(s) to be
18 delivered to an overnight courier service for delivery to the addressee(s).
19
(STATE) I declare under penalty of perjury under the laws of the State of
20 California that the foregoing is true and correct. Executed on March 2, 2021, at
Fresno, California.
221
22
ty 5 Ll OY LE Lz
23 ina Morgan
24
25
26
27
28
{8639/002/00978738.DOC}
SERVICE LIST
FCERA Realty Group, LLC v. Boardwalk at Palm Bluffs, LP, et al.
Fresno County Superior Court Case No. 19CECG01169
Darryl J. Horowitt
Steven Clark
Coleman & Horowitt, LLP
499 W. Shaw Ave., Ste. 116
Fresno, CA 93704
Ph: (559) 248-4820
Fax: (559) 248-4830 Attorneys for Boardwalk at Palm Bluffs,
E-mail: djhorowitt@ch-law.com LP and Boardwalk at Palm Bluffs, LP II
sclark@ch-law.com
10 Bob Sims
Mitchell Leverett
11 Sims, Lawrence & Arruti
12 2261 Lava Ridge Court
Roseville, CA 95661
13 Ph: (916) 797-8881
Fax: (916) 253-1544
14 E-mail: bob@sims-law.net Attorneys for Peters Roofing, Inc.;
15 mitchell@sims-law.net Johnson Fire Protection, Inc.
16 Scott D. Cote
Diepenbrock & Cotter, LLP
7 1435 River Park Drive, Ste. 400
18 Sacramento, CA 95815
Ph: (916) 565-6222
19 Fax: (916) 565-6220
E-mail: sdc¢@diepenbrockcotter.com
20 karen@diepenbrockcotter.com Attorneys for Target Constructors
21
Bruno Wolfenzon
22 Patrick W. Berry
Alex G. Touboul
23 Wolfenzon Rolle
4690 Executive Drive, Suite 125
24 San Diego, CA 92121
Ph: (858) 646-0071
25 Fax: (858) 646-0072
26 E-mail: bruno@wolfenzon.com
pberry@wolfenzon.com
27 atouboul@wolfenzon.com Attorneys for B & L Mechanical
28
{8639/002/00978738.DOC}
David M. Levy
Van De Poel, Levy, Thomas, Arneal LLP
1600 South Main Plaza, Suite 325
Walnut Creek, CA 94596
Ph: (925) 934-6102
Fax: (925) 934-6060
E-mail: dlevy@vanlevylaw.com
jkrenzin@vanlevylaw.com Attorneys for A. Colmenero Plastering,
dsteeves! vanlevylaw.com Inc.
Deborah A. Correll
Law Office of Patrick J. Campbell
3880 Atherton Road
Rocklin, CA 95765
Ph: (916) 630-3803
10 Fax: (916) 630-3848
E-mail: dcorrell@unitedfiregroup.com Attorneys for Cross-Defendant Meyers
11 Noree@unitedfiregroup.com Constructors, Inc.
12
Daniel S. Yanagihara, Jr.
13 Phillip Chan
Pacific Coast Companies
14 10600 White Rock Road, Suite 100
15 Rancho Cordova, CA 95670
Ph: (916) 631-6080
16 Fax: (916) 631-6683
E-mail: Daniel.yanagihara@pcci.com
17 phillip.chan@pcci.com; Attorneys for Alcal Specialty
Jonathan.Kendrick@pcci.com Contracting, Inc.
18
19 Elizabeth A. Thomasian
Emerson « Church
20 802 W. Pinedale Avenue, Suite 104
Fresno, CA 93711-5777
21
Ph: (559) 432-7641
22 Fax: (559) 432-7639 Attorneys for Cross-Defendant Valley
E-mail: ethomasian@lawemerson.com Glass Co., Inc.
23
Paul Fife
24
Fife Law LLP
25 300 Montgomery Street, Suite 850
San Francisco, CA 94104
26 Ph: (415) 837-3101
Fax: (415) 837-3111
27
E-mail: aul fife fifelawllp.com
28 patrickdoolittle@fifelawllp.com Attorneys for The Plumbing Co., Inc.
{8639/002/00978738.DOC}
Preview
E-FILED 'WANGER JONES HELSLEY PC 3/2/2021 2:44 PM 265 E. River Park Circle, Suite 310 Superior Court of California Fresno, CA 93720 Telephone: (559) 233-4800 County of Fresno Facsimile: (559) 233-9330 By: E Alvarado, Deputy Kurt F. Vote, # 160496 kvote@wijhattorneys.com Marisa L. Balch, # 258332 mbalch@wihattorneys.com Steven K. Vote #309152 vote@wihattorneys.com Attorneys for: Plaintiff FCERA REALTY GROUP, LLC, a California limited liability company 10 SUPERIOR COURT OF CALIFORNIA 11 COUNTY OF FRESNO, CENTRAL DIVISION 12 FCERA REALTY GROUP, LLC, a California Case No. 19CECG01169 limited liability company, 13 MEMORANDUM OF POINTS AND 14 Plaintiff, AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION 15 Vv. TESTIMONY OF AMY CASTRO, ETC. 16 BOARDWALK AT PALM BLUFFS, LP, a [Accompanying Documents: Notice of Motion California limited partnership; BOARDWALK and Motion; Separate Statement; Declaration 17 AT PALM BLUFFS II, LP, a California limited of Kurt F. Vote; [Proposed] Order] 18 partnership; TARGET CONSTRUCTORS, INC., a California corporation; ALCAL Hearing: 19 SPECIALTY CONTRACTING, INC., a Nevada corporation; PETERS ROOFING, INC., a Date: August 12, 2021 20 California corporation; JOHNSON FIRE Time: 3:30 p.m. 21 PROTECTION INCORPORATED, a California Dept.: 403 corporation; A. COLMENERO PLASTERING, Judge: Kristi Culver Kapetan 22 INC., a California corporation; B&L MECHANICAL, INC. and DOES 1-10, 23 inclusive, 24 Defendants. 25 26 27 28 {8639/002/01208557.DOCX} 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC. Plaintiff FCERA REALTY GROUP, LLC (“FCERA” or “Plaintiff’) submits the following Memorandum of Points and Authorities in support of its Motion to Compel Deposition Testimony of Amy Castro and for other relief. I INTRODUCTION On November 20, 2020, FCERA took the deposition of Amy Castro (“Ms. Castro”), the contract administrator for Defendant Target Constructors (“Target” or “Defendant”) in this action. At her deposition, Ms. Castro was instructed not to answer, and failed to provide any answer to, a series of questions concerning whether she had performed any comparison of the prevailing wage reports she 10 received from various subcontractors to the prevailing wage costs Target had provided to Boardwalk 11 at Palm Bluffs, LP (“Boardwalk”). Target’s counsel asserted that any information about analysis or 12 comparison conducted after the inception of this litigation, including whether Ms. Castro even 13 performed such actions, was subject to the attorney-client privilege and attorney work product 14 doctrine. On the contrary, this information is not privileged and directly relevant to the substance of 15 FCERA’s claims. 16 In its operative Second Amended Complaint (“SAC”), FCERA has asserted a claim 17 against Target for intentional misrepresentation. This cause of action is based primarily on the actions 18 of representatives of Target, including Ms. Castro. Specifically, FCERA has alleged that Target made 19 misrepresentations concerning the additional cost to pay prevailing wages on the underlying 20 construction project. Accordingly, discovery into Ms. Castro’s actions, as a representative of Target, 21 to verify or otherwise investigate whether the actual costs matched Target’s prior representations is 22 directly relevant to this action. 23 Target’s objections to this line of inquiry on the grounds of the attorney-client privilege 24 and the attorney work product are unfounded. The attorney-client privilege does not extend to facts 25 known by a party after consulting with an attorney. Further, facts known by a party do not become 26 privileged simply because of ongoing litigation or that they may have been subsequently 27 communicated to an attorney. Moreover, the information sought is specifically limited to Ms. Castro’s 28 own investigation and not any reports or analysis created by Target’s attorneys or their agents. {8639/002/01208557.DOCX} 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC. In short, Target cannot meet its burden of establishing the privileges asserted and that the information is not subject to discovery. Despite FCERA’s attempts to meet and confer, including on the record at Ms. Castro’s deposition — which was refused, Target has continued to assert its improper objections. For this reason, FCERA respectfully requests that the Court grant this Motion in its entirety and issue an Order requiring Ms. Castro to answer the questions at issue in this Motion at a subsequent deposition session; produce any responsive documents related to this line of inquiry that were not produced by Ms. Castro; awarding FCERA its attorneys’ fees incurred in bringing this Motion; and that Target pay the costs associated with any follow up deposition. IL. 10 LAW AND ARGUMENT 11 A Legal Standard. 12 Generally, “any party may obtain discovery regarding any matter, not privileged, that is 13 relevant to the subject matter involved in the pending action or to the determination of any motion 14 made in that action...” (Code Civ. Proc., § 2017.010.) “Discovery may relate to the claim or defense 15 of the party seeking discovery or of any other party to the action.” (/d.) 16 Any party may obtain relevant discovery by taking in California the oral deposition of 17 “any person, including any party to the action.” (Code Civ. Proc., § 2025.010.) “Ifa deponent fails to 18 answer any question...the party seeking discovery may move the court for an order compelling that 19 answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).) “The burden of establishing that a 20 particular matter is privileged is on the party asserting that privilege.” (San Diego Professional Ass'n 21 v. Superior Court of San Diego County (1962) 58 Cal.2d 194, 199, internal citations omitted.) 22 B FCERA Has Satisfied All Meet and Confer Requirements Prior to Filing this 23 Motion. 24 Ms. Castro’s deposition was held on or about November 20, 2020. (Declaration of 25 Kurt F. Vote in Support of Motion to Compel, served and filed herewith [the “Vote Decl.”], § 2, Exh. 26 A.) The record was completed by the court reporter on or about December 12, 2020. (Vote Decl., J 27 2.) On or about December 23, 2020, FCERA’s counsel sent certain correspondence to Target’s 28 counsel regarding the discovery dispute. (Vote Decl., 44, Exh. D.) Target’s counsel provided a brief {8639/002/01208557.DOCX} 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC. response maintaining the objections stated on the record at Ms. Castro’s deposition. (Vote Decl., 4, Exh. D.) On or about December 30, 2020, FCERA filed a Request for Pretrial Discovery Conference regarding the dispute. (Vote Decl., § 5, Exh. E.) On January 7, 2021, Target filed an Opposition to FCERA’s Request for Pretrial Discovery Conference. (Vote Decl., | 6, Exh. F.) Thereafter, on January 19, 2021, the Court issued an Order permitting FCERA to proceed with the instant Motion to Compel. (Vote Decl., § 7, Exh. G.) FCERA’s deadline to file the instant Motion was tolled, pursuant to the Fresno County Superior Court Local Rules, between December 30, 2020 and January 19, 2021. FCERA met all meet and confer and other procedural requirements prior to 10 filing the instant Motion. 11 Cc. The Questions at Issue Seek Discoverable and Non-Privileged Information. 12 The information sought by FCERA through the questions that Ms. Castro refused to 13 answer at her deposition is directly relevant to its claims in this action and is the proper subject of 14 discovery. Further, the information sought is foundational and does not seek any privileged 15 communications. Ms. Castro, or Target on her behalf, cannot establish any applicable privilege. 16 Accordingly, answers to the questions at issue should be compelled. 17 1 The Information Sought is Discoverable in Lieu of Any Applicable Privilege. 18 Any party may obtain discovery regarding “any matter, not privileged, that is relevant 19 to the subject matter involved in the pending action or to the determination of any motion made in that 20 action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to 21 the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) Here, FCERA has asserted a 22 claim for intentional misrepresentation against Target related to its representations regarding the 23 increased costs involved in the underlying project related to the payment of prevailing wages. (See, 24 Vote Decl., § 8, Exh. H; SAC, ff 18, 75, 76.) Further, FCERA has alleged that Ms. Castro was one of 25 the parties making the representations at issue on behalf of Target. (Vote Decl., { 8, Exh. H; SAC, 9 26 75,77.) The extent to which the representations made by Target were actually false, in addition to any 27 and all efforts by Target to determine the veracity of the representations, are clearly relevant to the 28 underlying claims and subject to discovery in lieu of any applicable privilege. {8639/002/01208557.DOCX} 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC. 2. The Information Sought is Not Subject to the Attorney-Client Privilege. At Ms. Castro’s deposition, Target’s counsel interposed objections in response to every question at issue in this Motion on the grounds that the information sought was subject to the attorney- client privilege. On the contrary, FCERA’s questions concern only foundational information and Ms. Castro’s own investigation of the underlying facts. Target cannot meet its burden of demonstrating that this privilege applies here. The party claiming the privilege bears the burden of demonstrating preliminary facts essential to the establishment of the privilege and that the information sought is confidential. (HLC Properties, Ltd. v. Superior Court (Crosby) (2005) 35 Cal.4th 54, 59.) For the purpose of establishing 10 the attorney-client privilege, a “communication” encompasses almost any acts done by the client in the 11 sight of the attorney that is intended to convey information. (City & County of S.F. v. Superior Court 12 (1951) 37 Cal.2d 227, 235-236 [italics added].) However, the foundational facts upon which the 13 attorney-client privilege depends—i.e., the existence of an attorney relationship, or the fact that the 14 communications were made in the course of that relationship—or ordinarily not regarded as 15 confidential and, hence, not privileged. (Coy v. Superior Court (Wolcher) (1962) 58 Cal.2d 210, 219.) 16 The attorney-client privilege only applies to the “confidential communications” between the attorney 17 and client. Therefore, the privilege cannot be invoked to block questions about facts that are known to 18 clients before they consulted with an attorney or facts made known to them between and after 19 consultations with the attorney. (State Farm Fire & Cas. Co. v. Superior Court (Taylor) (1997) 20 54 Cal.App.4th 625, 639 [factual information known to the client is not made privileged simply by 21 turning it over to the attorney].) Likewise, clients cannot create a privilege by transmitting otherwise 22 non-confidential information to the attorney. (Suezaki v. Superior Court (Crawford) (1962) 58 Cal.2d 23 166, 176.) Documents created by a party, even including witness statements, do not become 24 privileged communications (or work product) merely because they are turned over to counsel. 25 (Wellpoint Health Networks v. Superior Court (McCombs) (1997) 59 Cal.App.4th 110, 119.) 26 In addition, foundational questions do not fall within the scope of the attorney-client 27 privilege. (Alpha Beta Co. v. Superior Court (Sundy) (1984) 157 Cal.App.3d 818, 828-829.) Even 28 where the attorney-client privilege exists, it may not be used to shield facts, as opposed to {8639/002/01208557.DOCX} 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC. communications, from discovery. (Zurich American Ins. Co. v. Superior Court (Watts) (2007) 155 Cal.App.4th 1485, 1504.) Furthermore, a party may be examined in a deposition as to the facts of the case, irrespective of whether those facts have been communicated to the attorney. (Grand Lake Drive In, Inc. v. Superior Court (Bateman) (1960) 179 Cal.App.2d 122, 127.) Here, as detailed in the Separate Statement of Dispute Matters filed and served herewith, the questions at issue in Ms. Castro’s deposition do not concern information protected by the attorney-client privilege. In fact, four (4) of the five (5) questions at issue concern whether Ms. Castro took a particular action, including whether she compared the payroll reports from subcontractors to the list of prevailing wage costs provided to Boardwalk. The fifth question at issue concerns discussions 10 Ms. Castro may have had with other representatives of Target and specifically limits the information 11 sought to discussions “outside the presence of counsel.” With the exception of this last question, none 12 of the other information sought concerns any discussions with any party at Target. Rather, they seek 13 information related to Ms. Castro’s investigation and analysis of foundational factual matters in this 14 case. Although the last question does relate to communications, it specifically exempts any 15 conversations in the presence of Target’s counsel that might be subject to the attorney-client privilege. 16 There is simply no basis for asserting the attorney-client privilege as to any of the information sought 17 by FCERA. 18 3. The Information Sought is Not Attorney Work Product. 19 Target also objected to certain questions, which Ms. Castro then refused to answer, on 20 the grounds that the information was protected from disclosure by the attorney work product doctrine. 21 As with Target and Ms. Castro’s assertions regarding the attorney-client privilege, there are no 22 grounds for such an objection. 23 The attorney work product doctrine forms “a qualified privilege against discovery of 24 general work product and an absolute privilege against disclosures of writings containing the 25 attorney’s impressions, conclusions, opinions, or legal theories. (State Comp. Insurance Fund v. 26 Superior Coury (People) (2001) 91 Cal.App.4th 1080, 1091.) Although work product is often 27 described as a “privilege,” attorney work product is not among the privileges which are itemized in 28 Evidence Code §§ 900, et seq. (DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 687.) {8639/002/01208557.DOCX} 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC. Work produced by an attorney, the attorney’s agents, and consultants are considered work product. (Citizens for Ceres v. Superior Court (City of Ceres) (2013) 217 Cal.App.4th 889, 911.) However, that does not include work produced by clients. Information regarding events provable at trial or the identity and location of physical evidence cannot be brought within the work product protection simply by transmitting it to counsel. (Mack v. Superior Court (State of Ca.) (1968) 259 Cal.App.2d 7, 10.) Documents that are not originally protected as work product do not become so merely by being transferred to an attorney. (Laguna Beach County Water Dist. v. Superior Court (Woodhouse) (2004) 124 Cal.App.4th 1453, 1458.) A report prepared by a client—not by an attorney or his or her agents or employees—is not 10 work product of the attorney and an attorney cannot retroactively adopt the work of the client already 11 performed and convert it into his or her own. (Bank of Orient v. Superior Court (San Francisco Fed. 12 S. & L. Assn.) (1977) 67 Cal.App.3d 588, 598 [report from board of directors of corporate client not 13 protected as work product because not made by counsel].) 14 Here, Target and Ms. Castro have only asserted attorney work product protection in 15 response to the first three (3) questions described in FCERA’s Separate Statement of Disputed 16 Matters. As detailed, supra, those questions concerned whether Ms. Castro had taken particular 17 actions, to investigate or otherwise compare the actual certified payroll records from subcontractors to 18 the costs communicated to Boardwalk. The questions did not relate to the content of her analysis or 19 investigation. Assuming arguendo, however, that FCERA did inquire as to the content of Ms. 20 Castro’s analysis, it would be strictly limited to her own personal thoughts and impressions and would 21 not relate to any impressions, conclusions, or other analysis performed by Target’s counsel. 22 In sum, there are no grounds for Ms. Castro or Target to claim either the attorney-client 23 privilege or attorney work product protection with respect to the information sought. Accordingly, 24 FCERA respectfully requests that the Court grant its Motion and order Ms. Castro to answer the 25 questions at issue. 26 4. Ms. Castro Should Produce Any Documents Withheld on the Basis of Privilege. 27 FCERA included several document requests in the Amended Notice Deposition served 28 on Ms. Castro. This included Request No. 17, which sought documents related to the calculation of {8639/002/01208557.DOCX} 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC. prevailing wages increases for the underlying project. (Vote Decl., 4 2, Exh. B.) In response, Target, on behalf of Ms. Castro, asserted objections based upon the attorney-client privilege and attorney work product protection. (Vote Decl., 42, Exh. C.) It is difficult to tell from Ms. Castro’s response whether she withheld any documents on the basis of privilege, particularly since Target failed to produce the privilege log required by Code of Civil Procedure § 2031.240(c)(1). To the extent Ms. Castro withheld documents on the basis of privilege, the Court should not only compel her testimony for the reasons discussed, supra, but also order her to produce any responsive documents related to this testimony which were previously withheld. D. Target Constructors Has No Substantial Justification for Opposing This Motion. 10 Code of Civil Procedure § 2025.480(j) provides that the court shall impose a monetary 11 sanction: 12 “\..against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that 13 the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” 14 15 (Code Civ. Proc., § 2025.480, subd. (j).) “In a variety of similar contexts, the phrase ‘substantial 16 justification’ has been understood to mean that a justification is clearly reasonable because it is well 17 grounded in both law and fact.” (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 18 1434.) The burden of proving “substantial justification” for its actions lies with the party opposing the 19 motion. (/d., at 1435.) 20 For the reasons detailed, supra, Target and Ms. Castro will not be able to establish the 21 application of either the attorney-client privilege or the attorney work product doctrine to the 22 deposition questions at issue. FCERA attempted to resolve the issue informally by both meet and 23 confer correspondence and the Court’s pretrial discovery conference procedure. (Vote Decl., §{ 4-6.) 24 In fact, FCERA’s counsel attempted to meet and confer with Target’s counsel as to these issues on the 25 record at the deposition, but was repeatedly rebuffed. (Vote Decl., | 2, Exh. A, 130:25-131:12.) 26 There is simply no factual or legal justification for Ms. Castro’s refusal to answer the questions at 27 issue. 28 {8639/002/01208557.DOCX} 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC. FCERA was forced to incur attorneys’ fees and costs in drafting the instant Motion. Specifically, FCERA has incurred $2,652.50 in attorneys’ fees as of the filing of this Motion, as detailed in the Declaration of Kurt F. Vote filed and served herewith. (Vote Decl., ff 10-11.) It is expected that FCERA will incur additional attorneys’ fees related to the preparation of a Reply and appearance at the hearing on this matter, if any, which will be updated in a subsequent declaration. (Vote Decl., § 17.) Further, it is expected that there will be costs associated with a further deposition of Ms. Castro. (Vote Decl., § 18.) These costs should be borne by Target only, as the additional deposition would not have been necessary but for its unjustified objections. Accordingly, FCERA requests that the Court order Target to pay FCERA’s reasonable attorneys’ fees and costs in preparing 10 this Motion and any costs associated with a subsequent deposition. it Til. 12 CONCLUSION 13 For all of the foregoing reasons, for those to be set forth in the Reply (if any), and for 14 the reasons to be presented at oral argument in this matter, FCERA requests that this Court compel 15 Ms. Castro to answer the questions asked of her in her deposition and identified in the Separate 16 Statement filed herewith and to produce responsive documents in connection therewith, and award 17 FCERA attorneys’ fees in the amount of $2,652.50, as well as additional fees related to time spent 18 between now and the time of the hearing, which will be set forth in the moving party’s Reply papers. 19 DATED: MARCH 2, 2021 WANGER JONES HELSLEY PC 20 21 By 22 Kurt F. Vote 23 Marisa L. Balch Steven K. Vote 24 Attorneys for Plaintiff FCERA REALTY GROUP, LLC 25 26 27 28 {8639/002/01208557.DOCX} 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC. PROOF OF SERVICE My business address is 265 East River Park Circle, Suite 310, Post Office Box 28340, Fresno, California 93729. Iam employed in Fresno County, California. I am over the age of 18 years and am not a party to this case. On the date indicated below, I served the foregoing document(s) described as MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DEPOSITION TESTIMONY OF AMY CASTRO, ETC. on all interested parties in this action by placing a true copy thereof enclosed in sealed envelopes addressed as follows: SEE ATTACHED SERVICE LIST X (BY MAIL) lam readily familiar with the business’ practice for collection and 10 processing of correspondence for mailing, and that correspondence, with postage thereon fully prepaid, will be deposited with the United States Postal Service on 11 the date noted below in the ordinary course of business, at Fresno, California. 12Zz (BY FACSIMILE) 1 caused such document(s) to be transmitted to the 13 addressee(s) facsimile number(s) noted above. The facsimile machine | used complied with Rule 2003(3) and the transmission was reported as complete and 14 without error. 15 (BY ELECTRONIC SERVICE) I caused the foregoing document(s) to be 16 scanned into pdf format and sent via electronic mail to the electronic mail address(es) of the designated addressee(s). 17 (BY OVERNIGHT COURIER) I caused the above-referenced envelope(s) to be 18 delivered to an overnight courier service for delivery to the addressee(s). 19 (STATE) I declare under penalty of perjury under the laws of the State of 20 California that the foregoing is true and correct. Executed on March 2, 2021, at Fresno, California. 221 22 ty 5 Ll OY LE Lz 23 ina Morgan 24 25 26 27 28 {8639/002/00978738.DOC} SERVICE LIST FCERA Realty Group, LLC v. Boardwalk at Palm Bluffs, LP, et al. Fresno County Superior Court Case No. 19CECG01169 Darryl J. Horowitt Steven Clark Coleman & Horowitt, LLP 499 W. Shaw Ave., Ste. 116 Fresno, CA 93704 Ph: (559) 248-4820 Fax: (559) 248-4830 Attorneys for Boardwalk at Palm Bluffs, E-mail: djhorowitt@ch-law.com LP and Boardwalk at Palm Bluffs, LP II sclark@ch-law.com 10 Bob Sims Mitchell Leverett 11 Sims, Lawrence & Arruti 12 2261 Lava Ridge Court Roseville, CA 95661 13 Ph: (916) 797-8881 Fax: (916) 253-1544 14 E-mail: bob@sims-law.net Attorneys for Peters Roofing, Inc.; 15 mitchell@sims-law.net Johnson Fire Protection, Inc. 16 Scott D. Cote Diepenbrock & Cotter, LLP 7 1435 River Park Drive, Ste. 400 18 Sacramento, CA 95815 Ph: (916) 565-6222 19 Fax: (916) 565-6220 E-mail: sdc¢@diepenbrockcotter.com 20 karen@diepenbrockcotter.com Attorneys for Target Constructors 21 Bruno Wolfenzon 22 Patrick W. Berry Alex G. Touboul 23 Wolfenzon Rolle 4690 Executive Drive, Suite 125 24 San Diego, CA 92121 Ph: (858) 646-0071 25 Fax: (858) 646-0072 26 E-mail: bruno@wolfenzon.com pberry@wolfenzon.com 27 atouboul@wolfenzon.com Attorneys for B & L Mechanical 28 {8639/002/00978738.DOC} David M. Levy Van De Poel, Levy, Thomas, Arneal LLP 1600 South Main Plaza, Suite 325 Walnut Creek, CA 94596 Ph: (925) 934-6102 Fax: (925) 934-6060 E-mail: dlevy@vanlevylaw.com jkrenzin@vanlevylaw.com Attorneys for A. Colmenero Plastering, dsteeves! vanlevylaw.com Inc. Deborah A. Correll Law Office of Patrick J. Campbell 3880 Atherton Road Rocklin, CA 95765 Ph: (916) 630-3803 10 Fax: (916) 630-3848 E-mail: dcorrell@unitedfiregroup.com Attorneys for Cross-Defendant Meyers 11 Noree@unitedfiregroup.com Constructors, Inc. 12 Daniel S. Yanagihara, Jr. 13 Phillip Chan Pacific Coast Companies 14 10600 White Rock Road, Suite 100 15 Rancho Cordova, CA 95670 Ph: (916) 631-6080 16 Fax: (916) 631-6683 E-mail: Daniel.yanagihara@pcci.com 17 phillip.chan@pcci.com; Attorneys for Alcal Specialty Jonathan.Kendrick@pcci.com Contracting, Inc. 18 19 Elizabeth A. Thomasian Emerson « Church 20 802 W. Pinedale Avenue, Suite 104 Fresno, CA 93711-5777 21 Ph: (559) 432-7641 22 Fax: (559) 432-7639 Attorneys for Cross-Defendant Valley E-mail: ethomasian@lawemerson.com Glass Co., Inc. 23 Paul Fife 24 Fife Law LLP 25 300 Montgomery Street, Suite 850 San Francisco, CA 94104 26 Ph: (415) 837-3101 Fax: (415) 837-3111 27 E-mail: aul fife fifelawllp.com 28 patrickdoolittle@fifelawllp.com Attorneys for The Plumbing Co., Inc. {8639/002/00978738.DOC}