Preview
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FILES
Malcolm D. Schick, Esq. - State Bar No. 118978 +o
Erica C. Gonzalez, Esq. - State Bar No. pagss7 SHAY 22 PH S16
G&P|ScHIcK, A Professional Corporation mise kn
99 Almaden Boulevard, Suite 740 Ss
San Jose, California 95113-1605 2
Tel: (408) 995-5050; Fax: (408) 995~5150
Attorneys for Defendant, Cross—
Defendant, and Cross-Complainant,
HOLT REPAIR & MANUFACTURING, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN JOAQUIN
MONA TOVAR, Individually and - Case No. STK-CV-UPI-2018-10826
Defendants.
}
as Special Administrator of )
the Estate of Carlos Alexander) Judge: Roger Ross
Tovar, Deceased, and IZAIAH- ) Dept.: 11B .
TOVAR and OLIVIA TOVAR, ) Complaint filed:8/30/18
Minors, by and through their ) Trial: Not set yet
Guardian ad Litem, MONA TOVAR ) .
) NOTICE OF LODGMENT OF EXHIBITS
Plaintiffs, ) IN SUPPORT OF HOLT REPAIR &
. ) MANUFACTURING, INC.'S MOTION
Vv. ) FOR DETERMINATION OF GOOD FAITH
) SETTLEMENT 4
BERNARD TE VELDE and REBECCA )
DEE TE VELDE, Trustees of the ): Date: May 30, 2019
2000 Te Velde Family Trust, ) Time: 9;00 a.m.
HOLT REPAIR & MANUFACTURING, ) Dept.: 11B
INC., and DOES 1 to 100, )
“inclusive . )
)
)
)
TO: ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
Defendant, HOLT REPAIR & MANUFACTURING, INC, (“HOLT”), hereby
lodges the following documents in support of its Motion For
/Determination of Good Faith Settlement.
/t/
Vt
‘ft
-1-
NOFICE OF LOD rE UBPORT OF HOLT REPAIR & INC. 7S
. MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT
FILED BY FAX27
28
Exhibit
A
DATED:_ May 21, 2019
Description
Grant Deed, Assessors Parcel No. 131~070-~
07, San Joaquin County, for the real
property commonly known as 3650 S. Holt
Road, Stockton, California 95206
Excerpted portions of the Deposition of
Richard Marcucci, taken on April 3, 2019
Excerpted portions of the Deposition of
Kenneth Fryar, taken on April 8, 2019
Excerpted portions of the Deposition of
Bobby Fryar, taken on April 8, 2019
G&P|SCHICK
By:
co (Dh settiok, Esq.
Exica Q. Gonzalez, Esq.
At @ys for Defendant, Cross-
Defendant, and Cross-Complainant,
HOLT REPAIR & MANUFACTURING, INC.
-2-
NOTICE OF LODGMENT OF EXHIBITS IN SUPPORT OF HOLT REPAIR & MANUFACTURING, INC. 'S
MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENTEXHIBIT ARECORDING REQUESTED BY Doc .
Jeffrey E, Prag, Attorney at Law 6/08 72006 Oe il22s1i9.
= 2@18,00
Page 2 of .
AND WHEN RECORDED MAIL TO: Rooorded in Of tetat Recards
inty of San J
[7 Name: Jeffrey B. Prag 7 Rasessor het g4 iF evan”
Addrass: 5250 Claremont Avenue #117 ATTORNE
ote ee Ln
‘SPACE ABOVE THIS LINE FOR RECORDER'S USE
ASSESSORS PARCEL NO. {31-070-07 ~
: GRANT DEED
The undersigned Grantor(s) daclare(s) under penally of parjury that the following Is true and correct:
Documentary transfer taxis $ None; R&T 11930 .
CY Computed on full value of property conveyed, or
(2) Computed on full vatue less value of iens and encumbrances temalning at time of sale.
[QQ Unincorporated area: LJ) City of and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
Glenn C, Burgin, a married man, as his sole and separate property .
hereby GRANT(S) to
Glenn C. Burgin and Cheri Burgin, Trustees of the 2006 Burgin Family Trust
' the following described real Property in the County of San Joaquin. 0 , State of California:
| See the attached legal description, which is hereby incorporated by reference,
yes Trustees acknowledge and confirm that this property remains the separate property of Grantor.
Cc. « Chote
Gage Lhe flags —
Dated... Jutie 1, 2006--~
State of California
County of San Joaquin
On’ June 1, 3006 ” oe
beforeme, Jeffrey E. Prag, Notary Public
personally appeared Glenn C, Burgin
Pereenaly-knewnte-me (or Proved to me on the basis of satisfactory avidence) to be the person(e} whose name(s} Isfare
‘Subscribed'to the within instrument and acknowledged to me that helshattheyexecuted the same in his/hesthalr authorized
Capacity(ies}, and that by his/nastheir signature(s) on the instrument the person(s), or the entity upon behalf of which
|. the Rerseh(s) acted, executed the instrument.
1C Cian
me tA 7h nati Zh
| Title Order No. ae Escrow, Loan, or Attorney File No, _B067 Burgin
MAIL TAX STATEMENTS TO: ~ .
Glenn C. Burgin and Cheri Burgin, Trustees/P.O. Box 187/Holt, CA 95234 emystareze
Nowcare ° GRANT DEED
Martin Dan's Essertiof Forms
B067 Burgin, Glenn C. & CheriThat certain real property situated in the County of san
Yoaquin, State of fornia, described as follows:
A portion of Sections fifteen (15) and-sixteen (16), Township
ore (1) North, Range five (5) East, Mount Diablo Base and Meridian,
mors, particularly desoribed as follows.
BEGINVING at the corner conmon to Sections fifteen (15),
sixteen (16}, twenty-one (21) and twenty-two (22), Township one (2)
North, Bange five (5) East, Nownt Diablo Base and Meridian; and.
Kunning thence along the South line of Section sixteen (16}, West
3080 fot, more or logs, to the Easterly line of the 1.L. Border
Road; thence along said Sasterly line of raid road, North 50°00! .
East, 3752 feet to the point of beginning of the hereinafter described
“tact of land) thenca along the Basherly line of sald I.b, Border
Road, North 50°00! East, .221,5 fest to a point that ia South 40°00"
East and 30 feat distance from the canter line of the Southerly end
of the Concrete Subway; thence aleng the genezal Basterly ting of
said road, North 30°13! Enst, 78 feet to the Southarly dine of the
Atchison, Topeka and Santa Fe Railroad’ right of way; thence along
the Southerly line of said Railroad right of way, North §9°18!
~Rast, 564.4 feot; thence leaving the railroad right of way and
running South 50*00' West, 739 feet; thence North 40°00! Wort,
326.5 feet to the Point of Beginning,
|
|
|EXHIBIT BRichard John Marcucci 04/03/2019
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN JOAQUIN
--000-- .
MONA TOVAR, Individually and
as Special Administrator of
the Estate of Carlos Alexander
Tovar, Deceased, and IZAIAH
TOVAR and OLIVIA TOVAR, Minors,
by and through their Guardian
-ad Litem MONA TOVAR,
Plaintiff (s),
No. STK-CV-UPI-2018-10826
vs.
BERNARD TE VELDE and REBECCA
DEE TE VELDE, Trustees of the
2000 Te Velde Family Trust,’
HOLT REPAIR & MANUFACTURING,
INC., and DOES ONE through
ONE-HUNDRED, inclusive,
Defendants.
VIDEOTAPED DEPOSITION OF
RICHARD JOHN MARCUCCI
WEDNESDAY, APRIL 3, 2019
Reported by:
SHAWNA K. SAGAN, CSR No. 9889, RPR
Job No: 9404RP1
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Richard John Mareucci 04/03/2019
t
For the Plaint
Olivia Tovar
By:
650
San
41s.
DSae
Te Velde, Trus
LAW
By:
2251
916.
Crai
WALKUP: MELODIA KELLY & SCHOENBERGER:
For the Defendants: Bernard Te Velde and Rebecca Dee
Sacramento, California 95815:
APPEARANCES
iffs: Mona Tovar, Isaiah Tovar, and
DOUGLAS s. ‘SAELTZER, ESQ.
SPENCER J. PAHLKE, ESQ.
California Street, 26th Floor
Francisco, California.94108-2615
981.7210
1tzer@WalkupLawOffice.com’
tees of the 2000 Te Velde Family Trust
OFFICE OF SHAWN C, MOORE
CRAIG A. CALDWELL, ESQ.
Harvard Street, Suite 100
283.2683
g.Caldwell@Nationwide.com
SF - Sacramento - Stockton
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Richard John Marcucci
04/03/2019"
APPEARANCES
(Continued)
G&P SCHICK
-By: ERICA C. GONZALEZ, ESQ.
99 Almaden Boulevard, Suite 740
San Jose, California 95113
408.995.5050
EGonzalez@GPSchickLaw.com
Also Present:
DON ANGLIN, Videographer
For the Defendant: Holt Repair & Manufacturing, Inc.
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Richard John Marcucci 04/03/2019 -
Speer
WOR Oni enon
Q. Okay. If you wanted te change it by six inches
or two inches, is that something that can be done?
A. I don't think you can do that anymore.
Q: .. What would prevent you from doing that?
‘A, The department of the Water Resources. I
believe they have the measurements of the siphons, and I
don't believe you could go and change -- change your
siphons. , /
Q. What leads you to that belief?
A. Well, everything is, you know, because they
have that information on file, and they're not going to
allow you to divert more out of one -= out of that same
pinpoint, you know, ‘siphon.
They're ‘not going to want to you draw more
water out of there than what's there. I don't believe
that I could go and change the size of the siphons
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Richard John Marcucci , 04/03/2019
A. No.
Q. Do these siphons typically create any visible
sign that they're operating in the river, like a
whirlpool or any disturbance of the water when they're
operating?
A. No.
Q. , Do you they create any sound on the riverside?
A. No.
’ (Mr. Pahlke joins deposition proceedings.)
a aa
oe aE
Q. To your knowledge, did the farm do anything to
warn people on the Delta about the -- strike that
question.
Q. Or warn them about the pipes when they were in
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Q. * I'm talking about. when it was in operation,
sometimes it would shut off on its own?
A. Yes...
QO. ¢ Okay. Due to air getting in there or
something?
a. Sucking air and low tides.
Q. And that had been going on for years?
A. On and off. On and off.
Q. And that was to help keep the siphon operating
even at lower tides?
A. We were hoping, yes.
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NO
Q No?
PA. No.
Q. Had any of the siphons prior to June of 2018
ever become clogged?
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Richard John Marcucci 04/03/2019
No. .
And stopped due to clogs?
Due to clogs, no.
oO FP Oo
Could that cause a siphon to stop operating if
it got clogged? . ,
MR. CALDWELL: Object, lacks foundation, calls
for speculation.
THE WITNESS: It could. It could stop.
Q. BY MR. SAELTZER: Have you ever had that happen
in any siphon you were working with?
Q. Did the fact that this pipe where the incident
occurred had been shutting off due to air getting into
it, did that cause you any safety concern prior to this
incident?
A. Safety concerns, no,
Q. All right. So who would do -- if you needed
maintenance .or repair work done to these pipes, who
would you hire to do that?
AL I would hire Holt Repair. They are the ones
that work on our siphons.
Q. . Anybody else besides Holt work on your siphons
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Richard John Marcucci ° 04/03/2019
1 MR. CALDWELL:
2 MS. GONZALEZ:
4 just the photos.
5 MR. SAELTZER: Here. .I don't need any of them.
6 MR. CALDWELL: Yeah, okay.
7 MR. SAELTZER: Can you pass them all down.
8 MR. CALDWELL: All right.
Pie:
SoU ue
EEE Aen
3 MR. SAELTZER:
We have already got --
I don't have one.
You have seen them. They ate.
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Richard John Marcucci 04/03/2019
Q. ’ The reason I gave. you the photos is these are
photos that have been produced showing the work.
Do you know, would you typically go to the site
if work like this was occurring?
A. Sometimes I would. But, you know, depending on
their schedule; they come in and out. And I wasn't
there at the time they did this.
Q. How do you know that?
A. * I don't recall any of this.
Q. Did you have any understanding as to how they
were -- well, they were going to need to crane out the
pipe, true?
A. Correct. .
Q. How they were going to connect to the pipe to
crane it out?
MS. GONZALEZ: Objection, calls for
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Richard John Marcucci 04/03/2019
the present?
A. No.
Q. Any role in the design for any of the pipes
that were on the property prior to 2007?
A. No.
Q. Is it -- now, I understand you -- you're
extensively familiar with the property when you took
ownership and such.
Have you known the property to have the eight
siphons, plus the ninth Upper Jones Tract’ siphon, for
that to be the total number ‘of siphons on the property
for that entire period?
A. Correct, yeah.
Q. And as you sit here today, do you have a
current understanding of the -~- strike that.
You testified earliér that you haven't done-
anything after this incident to determine what shape the
pipes terminate in on your property. .Do you remember
that area of questioning?
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that was done in 2016 to determine if there were any
holes in the pipe for the portion under water?
SRC US EOMuOEE DT aCUaCe cum
a
a
Q. BY MS. GONZALEZ: So generally, you testified
earlier that repairs or work on the pipes on your
properties have been performed by Holt Manufacturing, -
correct?
A. Correct.
Q. And at no other point any other company has
performed repair or welding on any of the pipes on the
Te Velde property? ,
A. No.
Q. Okay. I understand that Dino & Sons did the
work for the pipe when it was replaced after this |
incident, correct?
A. That's correct.
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Richard John Marcucci 04/03/2019
A. No.
Q. Okay. Okay. Now, we had started talking
generally just about Te Velde's maintenance of the
pipes. I understand -- well, strike that.
Q. Okay. Do you, and by "you" I'm talking about
you personally or anyone on behalf of Te Velde, have a
custom or practice of maintaining any log or written
record of any work that's performed on the pipes of the
property?
A. No. Besides our bills.
Q. Now, I understand there was a series of
questions between the work that was done with Holt. And
I understand any writings regarding of that work only
consists of the invoices, correct?
AL " Correct.
Q. You don't submit anything. in like a writing
request to Holt for the work --
A. No.
Q. -- correct? Is there anything in writing that
you would do after Holt has performed work to sign off,
other than the invoice?
A. No.
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Richard John Marcuccl 04/03/2019
Q. Would anyone other than yourself have the role
of checking Holt's work after it's performed?
A. “ No. ¢
Q. And I understand that you would contact
Mr. Burgin for any work that was performed by Holt,
correct?
A. Correct.
Q. Did you ever any conversations with Glen
Bergen?
A. No.
Q. Other than Greg, was there anyone else at Holt
that you would have conversations with to perform work
on the property? .
A. No, I talked to Greg.
QO. So understanding that there was no regularly
scheduled review of these pipes, what -- how -- what
would be the process then for making a request for
repair work?
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A. I don't know.
Q. And, generally, when you request work from Holt
to replace the pipe, the length of the pipe, is that to
just -- strike that. Terrible question.
A. “Okay. ,
Q. “You just stated that you asked them to replace
the pipe as is, correct?
A... Yeah.
Q. I have seen several references in these
invoices as the north drain pump station. Do you know
what station that is referring to?
A. It's the drain pump east of that siphon number
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Richard John Marcucci 04/03/2019
Q.
Correct.
So that makes four, correct?
Yes. Correct.
Do you know LE Holt did any work on the subject
more than four days in August of 2016? :
Repeat that one more time there.
Sure. Well, actually, let me strike that and
start over.
multiple-
A.
And do you know if that was a one-day job or a
day: job?
I don't -- I don't recall.
Okay. Were you there when Holt performed the
No.
-- on the water side in 2016?
No.
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Richard John Marcucci 04/03/2019
Q. ‘Of these invoices that are in front of you for
Exhibit 69, do you have any knowledge if these refer to
that work that was performed to extend the ten feet in
2016?
A. It would be invoice 11601.
Q. Beyond this invoice, do any of the other.
invoices appear to you to be referring to the work in
2016?
Q. And at that time, did you know why you were
having problems with the pipe?’
A. At that time, no,
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Richard John Marcucci 04/03/2019
Q. I won't painstakingly go through the rest of
the invoices, but I will mark as Exhibit 79? 78. I
apologize. I only have one photograph, Spencer.
/ (Defendant's Exhibit 78 marked for
identification. }
Q. BY MS. GONZALEZ: Mr. Marcucci, what I have
just handed to you is a photograph. We have marked that
as Exhibit 78.
Have you ever -seen this paragraph before?
A. I can't say I have, no.
Q. Okay. Well, I will represent to you. that this
was a photograph that was taken during an inspection
that occurred with all of the counsel in this current.
matter.
197
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SF - Sacramento - Stockton (888) 333-8270 tpcourtreporters.comRichard John Mareucci 04/03/2019
16:25:20 1 And you understand that we have been discussing
16:25:22 2 a T section that was found on the side of subject pipe
16:25:29 3 sometime after the incident, correct?
16:25:29 4 A. Correct. .
16:25:29 Gea
“16:25:32 GEE
16:25:35 (GES
16:25:38
16:25:39
16:25:39
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16:25:51. GRRE
16:25:53 13 | Q. Over your several decades of work with Holt
16:26:07 14 Repair, have you ever had any criticisms or complaints
16:26:10 15 | regarding the quality of their work?
16:26:12 16 A. No.
. 16:26:13 17 | Q. Have you ever had any experience with -- with
16:26:23 18 | pipes that had been welded on by Holt having broken off
16:26:30 19 | under the water line?
16:26:30 20 A. No.
16:26:30 21 | Q. Have you ever been aware of any injury to any
16:26:33 22 person as a result of the work performed on a pipe --
16:26:40 23 strike that. Let me start that one over again.
16:26:44 24 ‘ Have you evér been aware of a person becoming
"16:26:46 25 injured on a siphon because of work that was performed
198
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I HD UB
Richard John Marcucci 04/03/2019
by Holt?
A. No..
Q. - Other than perhaps your attorney or something
after this litigation began, has anyone ever else -- has
anyone else ever suggested to you that this accident in
question that we have been discussing today happened as
a result of the work that was performed by Holt?
A. No.
MS. GONZALEZ: I don't have any more questions.
MR: PAHLKE: Do you mind if I ask a couple of
follow-up questions?
MR. CALDWELL: Do I mind?
MR. PAHLKE: Yeah. ‘Well, I'm not Doug, you
know. Don't worry.
MR. CALDWELL: Just kidding.
. EXAMINATION BY MR. PAHLKE
Q. Hi, Mr. Marcucci.
Royal Phillips Court Reporters
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Richard John Marcucci 04/03/2019
Qo. Were you there at any time while they were
doing that add-on work?
A. "No.
Q. Presumably you looked just from up above the
water, not inside the water --
A. " Correct.
Q. -- undex the water?
A. Right.
Q.- When you did that inspection, did you have any
idea if there was a T attached to the end of that pipe
or not?
A. Yeah, no, didn't know.
Q. Did you have any expectation of whether there
was one attached?
A. No.
MR.’ PAHLKE: Thank you very much.
THE WITNESS: Okay.
THE VIDEOGRAPHER: That's it?
MS. GONZALEZ: Yes.
THE VIDEOGRAPHER: Going off the record,
approximately, 4:28.
THE REPORTER: ‘Does anyone want a copy of the-
transcript?
200
Royal Phillips Court Reporters
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Richard John Marcucci . 04/03/2019
Please be advised that I have read the foregoing
deposition. I state there are:
(Check one)
NO CORRECTIONS
CORRECTIONS ATTACHED
‘RICHARD JOHN MARCUCCI
Date Signed
Case Title: TOVAR vs. TE VELDE
Date of Deposition: APRIL 3, 2019
Job No: 9404RP1
--000--
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.EXHIBIT C24
25
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN JOAQUIN
MONA TOVAR, individually and as
Special Administrator of the
Estate of Carlos Alexander Tovar,
Deceased, and IZAIAH TOVAR and
OLIVIA TOVAR, Minors, by and
through their Guardian ad Lite
MONA TOVAR, +
Plaintiffs,
vs. Case No.:
. STK-CV-UPI-10826
BERNARD TE VELDE and REBECCA DEE
TE VELDE, Trustees of.the 2000
Te Velde Family Trust, HOLT REPAIR
& MANUFACTURING, INC., and DOES ONE
through ONE HUNDRED, inclusive,
Defendants.
VIDEOTAPED DEPOSITION OF KENNETH FRYAR
Monday, April 8, 2019
2:09 p.m.
Taken in the offices of: ©
CALIFORNIA DEPOSITION REPORTERS
2453 Grand Canal Boulevard, Suite J
Stockton, California
REPORTED BY: KAREN A. AUFDERMAUR, CSR 10919
California Deposition Reporters (209) 478-3377 or (800) 442-3377APPEARANCES:
‘FOR PLAINTIFFS:
FOR
WALKUP, MELODIA, KELLY, WECHT & SCHOENBERGER
BY: SPENCER J. PAHLKE, ATTORNEY AT LAW
650 California Street, 26th Floor
San Francisco, California 94108
T: 415.981.7210
F: 415.391.6965
spahlke@walkuplawoffice.com
DEFENDANTS BERNARD TE VELDE and REBECCA DEE
TE VELDE:
FOR
LAW OFFICE OF SHAWN C. MOORE
BY: CRAIG A. CALDWELL, ATTORNEY AT LAW
-2251 Harvard Street, Suite 100
Sacramento, California 95815
T: 916.921.9353
FP: 916.921.9040
craig.caldwellenationwide.com
DEFENDANT HOLT REPAIR & MANUFACTURING:
G & P SCHICK
BY: ERICA C. GONZALEZ, ATTORNEY AT LAW
99 Almaden Boulevard, Suite 740
San Jose, California 95113
T: 408.995.5050
F: 408.995.5150
egonzalez@gpschicklaw.com
ALSO PRESENT:
Joshua Headrick, Videographer
Karen A. Aufdermaur, Reporter
---000---
California Deposition Reporters (209) 478-3377 or (800) 442-3377welding certification?
A. . I believe 2002.
Q. And what type of welding certification did you
receive?
A. Structural.
Q. You've got a question mark at the end of that
answer. Is that your best answer, that’ it was a
structural welding certification?
A. I'm not -- I can -- I don't really understand the
question.
Q. Okay. Who did you get your welding certification
through? ,
AL Through Holt Repair.
Q. Okay.. Somehow in-house they did that for you?
A, Yes. : ,
Q. : okay. ‘and when did that lapse, to your
knowledge? :
A. 2007.
Q. Okay. And so for the last three years while
you've been working at Holt you've been doing a lot of
welding and without a certification; right?
A. Correct.
California Deposition Reporters (209) 478-3377 or (800) 442-3377 7a
@6888ae6.-
@ees 6
Q. What's Daniel's last name?
A. I'm terrible. I apologize. I don't know.
PIS emvour eo)
Q. All right. Would I be correct in assuming that
you very frequently weld two pieces of pipe .together?
A. Yes.
Q. Okay. For example, when you're doing the work on
this particular siphon pipe, you've got 12-inch diameter
’ pipes and you're adding an extension, you're doing a
weld. on one end to the extending pipe and then the
California Deposition Reporters (209) 478-3377 or (800) 442-3377
7224
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DECLARATION UNDER PENALTY OF PERJURY
I, KENNETH FRYAR, do hereby certify under penalty
of perjury that I have read the foregoing transcript of.
my deposition taken on April 8, 2019; that I have made
such corrections as appear noted on the Deposition
‘Errata page, attached hereto, signed by me; that my
correct.
Dated this day of, : , 2019
at , California.
KENNETH FRYAR
testimony as contained herein, as corrected, is true and
California Deposition Reporters (209) 478-3377 or (800) 442-3377
95EXHIBIT DSUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN JOAQUIN
MONA TOVAR, individually and as
Special Administrator of the
Estate of Carlos Alexander Tovar,
Deceased, and IZATAH TOVAR and
OLIVIA TOVAR, Minors, by and
through their Guardian ad Litem
MONA TOVAR,
Plaintiffs,
vs. Case No.:
STK-CV-UPI-10826
BERNARD TE VELDE and REBECCA DEE
TE VELDE, Trustees of the 2000
Te Velde Family Trust, HOLT REPAIR
& MANUFACTURING, INC., and DOES ONE_
through ONE HUNDRED, inclusive,
Defendants.
VIDEOTAPED DEPOSITION OF BOBBY FRYAR
Monday, April 8, 2019
9:03.a.m.
Taken in the offices of:
CALIFORNIA DEPOSITION REPORTERS
2453 Grand Canal Boulevard, Suite J
Stockton, California
REPORTED BY: KAREN A. AUFDERMAUR, CSR 10919
California Deposition Reporters (209) 478-3377 or (800) 442-337724
25
APPEARANCES:
FOR PLAINTIFFS:
WALKUP, MELODIA, KELLY, WECHT & SCHOENBERGER
_ BY: SPENCER J. PAHLKE, ATTORNEY AT LAW
650 California Street, 26th Floor
San Francisco, California 94108
T: 415.981.7210
F: 415.391.6965
spahlke@walkuplawoffice.com
FOR DEFENDANTS BERNARD TE VELDE and REBECCA DEE
TE VELDE:
LAW OFFICE OF SHAWN C. MOORE
BY: . CRAIG A. CALDWELL, ATTORNEY AT LAW
2251 Harvard Street, Suite 100
Sacramento, California 95815
T: 916,921,9353
F: 916.921.9040
craig.caldwell@nationwide.com
FOR DEFENDANT HOLT REPAIR & MANUFACTURING:
G & PB SCHICK | .
BY: ERICA C. GONZALEZ, ATTORNEY AT LAW
99 Almaden Boulevard,: Suite 740
San Jose, California 95113
T: 408.995.5050
F: 408.995.5150 :
egonzalez@gpschicklaw.com
ALSO PRESENT:
Joshua Headrick, Videographer
Karen A. Aufdermaur, Reporter
---000---
California Deposition Reporters (209) 478-3377 or (800) 442-3377B
SO ee ® wv
2 Ss
A. Well, we shared responsibilities, so I was from
say '88 until 2000 -- 2000.
Q. And. before that were you acting effectively as a
foreman?
A. I -- yes, I was.
Q. For how. long?
A. Add another five years. So about ten years.
Q. Before you were -- you were an acting foreman,
what else did you do at Holt Repair & Manufacturing?
A. . TIT used to weld, fabricate, heavy equipment
operator obviously, laborer even.
'Q.. Aside from the formal job title of foreman, - what
other job titles have you had at Holt Repair &
Manufacturing? |
A. None. That was it.
Q. What are your responsibilities as a foreman?
A. My responsibilities as foreman is to make sure
men and material and equipment arrive to the job site
California Deposition Reporters (209) 478-3377 or (800) 442-3377
41525
configuration of siphon pipe?
B. I do not know that, no.
Q. You've said that grass and hyacinth, that kind of
stuff, gets sucked through -- sucked into these pipes
sometimes; right?
A. Yes.
Q. Any other debris you've seen get sucked into or
through a pipe? . Maybe trash, anything like that?
A. No.-
Q. Are there any preventative measures that Holt
Repair & Manufacturing takes on behalf of its customers
to prevent clogs in siphon pipes?
A. We put aT.
Q. Why do you do that?
A. .» If one side plugs up, the other side can still
draw water.
Q. _ Do you -- strike that.
Q. Another example of you guys doing what the
California Deposition Reporters . (209) 478-3377 or (800) 442-337724
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Q. You've seen them before it sounds like?
A. Under the water. Not clearly, but under the
water. ,
Q. Do you know if they have any other purpose aside
from keeping fish out? /
MS. GONZALEZ: Objection; calls for speculation,
THE WITNESS: No.
MR. PAHLKE: Q. -At Holt Repair & Manufacturing
have you guys ever discussed putting anything on the
ends of inlets aside from Ts?
A. - No.
Q. Do you have any idea what the. cost is of putting
one of these fish screens on the inlet of a pipe?
A. No.
Q. Are you aware of any -- well, strike that.
Q. ‘Let's say you guys are doing some work on an
inlet side of a siphon pipe, 12-inch pipe, in the year
California Deposition Reporters (209) 478-3377 or (800) 442-3377
492018. Do you know what the added cost is of putting a T
on the end of that thing? ,
MS. GONZALEZ: - Objection; vague, overbroad.
THE WITNESS:. No, I don't. :
MR. PAHLKE: Q. How would you figure that out?
A I would let my boss Greg figure it out.
Q Greg handles all the costs and everything?
A. Yes.-
Q , Do you handle any aspect of the billing for Holt
Repair & Manufacturing?
A. No.
Q. Do you know what the costs are for any of its
products?
A. No.
Q. Do you know what the costs are for any of its
services?
A No
: SERISTEIED
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MR. CALDWELL: Objection; lacks foundation, calls
for speculation.
MR. PAHLKE: Q. And you know that because you've
talked to Greg about it.I assume?
A. Greg tells us what to do and we go and do it.
Q. And through the years you've come to understand
what ‘Greg's business practices are in that regard?
MS. GONZALEZ: Objection; lacks foundation.
MR. CALDWELL: Join.
THE WITNESS: Not fully. To be honest with you
not fully because I don't handle that kind of --
MR. PAHLKE: -Q. When you guys give instructions
to install a pipe, are you ever told we want the inlet
at such. and such depth from like mean tide levels or
from the road?
A. Yes, if we ware working for the reclamation
district and we are doing levee lifts.
Q. . What's a levee lift?
A. Is where we're raising the levee by*a few feet in
order to stay above the hundred year floodplain.
Q. So in that situation where you're raising the
levee, you may then install a siphon inlet at a certain
depth?
A. Yes.
California Deposition Reporters {209) 478-3377 or (800) 442-3377 . So24
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Q. Do you recall when he came by?
-- it could be 9:00 o'clock, it could be 10:00 o'clock.
Q. Earlier in the day as opposed to later?
A. Yeah, yes.
Q. When as part of this’ project did you write down
what you have in Exhibit 76?
A. That would be as soon as the job was done.
Q. - Okay.
A, Before I left the job site I wrote -- wrote down.
Because I have to have the measurements and everything
like that so I could turn in.
Q. So you would have written this while you were
done while you were out there on the job site?
Q. was there any discussion of whether a T would be
put on the pipe?
A. TE there was. one, it would have stayed on there.
MR. CALDWELL: Objection; that's nonresponsive.
MR. PAHLKE: Q. In other words -- well, strike
that.
Let's go through the process here a little bit.
A. The same day. It was -- exactly the time, no. I
California Deposition Reporters (209) 478-3377 or (800) 442-3377
88not working properly?
UA. No. Plugging. All the grass or stuff would plug
at low tide.
Q. All the what stuff?
A. All the water hyacinth and stuff at low tide
would get down around the bottom and then they would
have problems with it.
Q. Was there any sign in this location that you saw
on August 4, 2016 that there was an issue with stuff
getting in the pipe and plugging it?
A. No.
Q. When you went out to the job site on August 4th,
did you know if there was a -- if there was supposed to
.be a T on the end of the existing pipe?
A. No, I did not know that.
Q.° Okay. Was it Holt's standard operating procedure
when putting -- when replacing siphon pipes in the water
if they did not have a T on the end to attach one?.
California Deposition Reporters (209) 478-3377 or (800) 442-3377
139DECLARATION UNDER PENALTY OF PERJURY
I, BOBBY FRYAR, do hereby certify under penalty
of perjury that I have read the foregoing transcript of
my deposition taken on April 8, 2019; that I have made
such corrections as appear noted on the Deposition
Errata page, attached hereto, signed by me; that my
testimony as contained herein, as corrected, is true and
correct.
Dated this day of, , 2019
at ; California.
BOBBY FRYAR
a
California Deposition Reporters (209) 478-3377 or (800) 442-3377
168
Preview
y FILES Malcolm D. Schick, Esq. - State Bar No. 118978 +o Erica C. Gonzalez, Esq. - State Bar No. pagss7 SHAY 22 PH S16 G&P|ScHIcK, A Professional Corporation mise kn 99 Almaden Boulevard, Suite 740 Ss San Jose, California 95113-1605 2 Tel: (408) 995-5050; Fax: (408) 995~5150 Attorneys for Defendant, Cross— Defendant, and Cross-Complainant, HOLT REPAIR & MANUFACTURING, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN JOAQUIN MONA TOVAR, Individually and - Case No. STK-CV-UPI-2018-10826 Defendants. } as Special Administrator of ) the Estate of Carlos Alexander) Judge: Roger Ross Tovar, Deceased, and IZAIAH- ) Dept.: 11B . TOVAR and OLIVIA TOVAR, ) Complaint filed:8/30/18 Minors, by and through their ) Trial: Not set yet Guardian ad Litem, MONA TOVAR ) . ) NOTICE OF LODGMENT OF EXHIBITS Plaintiffs, ) IN SUPPORT OF HOLT REPAIR & . ) MANUFACTURING, INC.'S MOTION Vv. ) FOR DETERMINATION OF GOOD FAITH ) SETTLEMENT 4 BERNARD TE VELDE and REBECCA ) DEE TE VELDE, Trustees of the ): Date: May 30, 2019 2000 Te Velde Family Trust, ) Time: 9;00 a.m. HOLT REPAIR & MANUFACTURING, ) Dept.: 11B INC., and DOES 1 to 100, ) “inclusive . ) ) ) ) TO: ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: Defendant, HOLT REPAIR & MANUFACTURING, INC, (“HOLT”), hereby lodges the following documents in support of its Motion For /Determination of Good Faith Settlement. /t/ Vt ‘ft -1- NOFICE OF LOD rE UBPORT OF HOLT REPAIR & INC. 7S . MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT FILED BY FAX27 28 Exhibit A DATED:_ May 21, 2019 Description Grant Deed, Assessors Parcel No. 131~070-~ 07, San Joaquin County, for the real property commonly known as 3650 S. Holt Road, Stockton, California 95206 Excerpted portions of the Deposition of Richard Marcucci, taken on April 3, 2019 Excerpted portions of the Deposition of Kenneth Fryar, taken on April 8, 2019 Excerpted portions of the Deposition of Bobby Fryar, taken on April 8, 2019 G&P|SCHICK By: co (Dh settiok, Esq. Exica Q. Gonzalez, Esq. At @ys for Defendant, Cross- Defendant, and Cross-Complainant, HOLT REPAIR & MANUFACTURING, INC. -2- NOTICE OF LODGMENT OF EXHIBITS IN SUPPORT OF HOLT REPAIR & MANUFACTURING, INC. 'S MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENTEXHIBIT ARECORDING REQUESTED BY Doc . Jeffrey E, Prag, Attorney at Law 6/08 72006 Oe il22s1i9. = 2@18,00 Page 2 of . AND WHEN RECORDED MAIL TO: Rooorded in Of tetat Recards inty of San J [7 Name: Jeffrey B. Prag 7 Rasessor het g4 iF evan” Addrass: 5250 Claremont Avenue #117 ATTORNE ote ee Ln ‘SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSORS PARCEL NO. {31-070-07 ~ : GRANT DEED The undersigned Grantor(s) daclare(s) under penally of parjury that the following Is true and correct: Documentary transfer taxis $ None; R&T 11930 . CY Computed on full value of property conveyed, or (2) Computed on full vatue less value of iens and encumbrances temalning at time of sale. [QQ Unincorporated area: LJ) City of and FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Glenn C, Burgin, a married man, as his sole and separate property . hereby GRANT(S) to Glenn C. Burgin and Cheri Burgin, Trustees of the 2006 Burgin Family Trust ' the following described real Property in the County of San Joaquin. 0 , State of California: | See the attached legal description, which is hereby incorporated by reference, yes Trustees acknowledge and confirm that this property remains the separate property of Grantor. Cc. « Chote Gage Lhe flags — Dated... Jutie 1, 2006--~ State of California County of San Joaquin On’ June 1, 3006 ” oe beforeme, Jeffrey E. Prag, Notary Public personally appeared Glenn C, Burgin Pereenaly-knewnte-me (or Proved to me on the basis of satisfactory avidence) to be the person(e} whose name(s} Isfare ‘Subscribed'to the within instrument and acknowledged to me that helshattheyexecuted the same in his/hesthalr authorized Capacity(ies}, and that by his/nastheir signature(s) on the instrument the person(s), or the entity upon behalf of which |. the Rerseh(s) acted, executed the instrument. 1C Cian me tA 7h nati Zh | Title Order No. ae Escrow, Loan, or Attorney File No, _B067 Burgin MAIL TAX STATEMENTS TO: ~ . Glenn C. Burgin and Cheri Burgin, Trustees/P.O. Box 187/Holt, CA 95234 emystareze Nowcare ° GRANT DEED Martin Dan's Essertiof Forms B067 Burgin, Glenn C. & CheriThat certain real property situated in the County of san Yoaquin, State of fornia, described as follows: A portion of Sections fifteen (15) and-sixteen (16), Township ore (1) North, Range five (5) East, Mount Diablo Base and Meridian, mors, particularly desoribed as follows. BEGINVING at the corner conmon to Sections fifteen (15), sixteen (16}, twenty-one (21) and twenty-two (22), Township one (2) North, Bange five (5) East, Nownt Diablo Base and Meridian; and. Kunning thence along the South line of Section sixteen (16}, West 3080 fot, more or logs, to the Easterly line of the 1.L. Border Road; thence along said Sasterly line of raid road, North 50°00! . East, 3752 feet to the point of beginning of the hereinafter described “tact of land) thenca along the Basherly line of sald I.b, Border Road, North 50°00! East, .221,5 fest to a point that ia South 40°00" East and 30 feat distance from the canter line of the Southerly end of the Concrete Subway; thence aleng the genezal Basterly ting of said road, North 30°13! Enst, 78 feet to the Southarly dine of the Atchison, Topeka and Santa Fe Railroad’ right of way; thence along the Southerly line of said Railroad right of way, North §9°18! ~Rast, 564.4 feot; thence leaving the railroad right of way and running South 50*00' West, 739 feet; thence North 40°00! Wort, 326.5 feet to the Point of Beginning, | | |EXHIBIT BRichard John Marcucci 04/03/2019 SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN JOAQUIN --000-- . MONA TOVAR, Individually and as Special Administrator of the Estate of Carlos Alexander Tovar, Deceased, and IZAIAH TOVAR and OLIVIA TOVAR, Minors, by and through their Guardian -ad Litem MONA TOVAR, Plaintiff (s), No. STK-CV-UPI-2018-10826 vs. BERNARD TE VELDE and REBECCA DEE TE VELDE, Trustees of the 2000 Te Velde Family Trust,’ HOLT REPAIR & MANUFACTURING, INC., and DOES ONE through ONE-HUNDRED, inclusive, Defendants. VIDEOTAPED DEPOSITION OF RICHARD JOHN MARCUCCI WEDNESDAY, APRIL 3, 2019 Reported by: SHAWNA K. SAGAN, CSR No. 9889, RPR Job No: 9404RP1 Royal Phillips Court Reporters SF - Sacramento - Stockton (888) 333-8270 rpcourtreporters.comm 24 25 Richard John Mareucci 04/03/2019 t For the Plaint Olivia Tovar By: 650 San 41s. DSae Te Velde, Trus LAW By: 2251 916. Crai WALKUP: MELODIA KELLY & SCHOENBERGER: For the Defendants: Bernard Te Velde and Rebecca Dee Sacramento, California 95815: APPEARANCES iffs: Mona Tovar, Isaiah Tovar, and DOUGLAS s. ‘SAELTZER, ESQ. SPENCER J. PAHLKE, ESQ. California Street, 26th Floor Francisco, California.94108-2615 981.7210 1tzer@WalkupLawOffice.com’ tees of the 2000 Te Velde Family Trust OFFICE OF SHAWN C, MOORE CRAIG A. CALDWELL, ESQ. Harvard Street, Suite 100 283.2683 g.Caldwell@Nationwide.com SF - Sacramento - Stockton Royal Phillips Court Reporters (888) 333-8270 rpcourtreporters.comA uo ® ~ 24 25 Richard John Marcucci 04/03/2019" APPEARANCES (Continued) G&P SCHICK -By: ERICA C. GONZALEZ, ESQ. 99 Almaden Boulevard, Suite 740 San Jose, California 95113 408.995.5050 EGonzalez@GPSchickLaw.com Also Present: DON ANGLIN, Videographer For the Defendant: Holt Repair & Manufacturing, Inc. . Royal Phillips Court Reporters SF - Sacramento - Stockton (888) 333-8270 rpcourtreporters.com12:40:48 12:40:49 12:40:54 12:40:57 12:40:58 12:41:01 12:41:06 12:41:12 12:41:25 — 12:41:28 12:41:31 12:41:34 12:41:39 12:41:39 12:41:42 12:41:45 12:41:48 , 12:41:53 12:41:59 12:42:01 12:42:04 f Richard John Marcucci 04/03/2019 - Speer WOR Oni enon Q. Okay. If you wanted te change it by six inches or two inches, is that something that can be done? A. I don't think you can do that anymore. Q: .. What would prevent you from doing that? ‘A, The department of the Water Resources. I believe they have the measurements of the siphons, and I don't believe you could go and change -- change your siphons. , / Q. What leads you to that belief? A. Well, everything is, you know, because they have that information on file, and they're not going to allow you to divert more out of one -= out of that same pinpoint, you know, ‘siphon. They're ‘not going to want to you draw more water out of there than what's there. I don't believe that I could go and change the size of the siphons 72 Royal Phillips Court Reporters SF - Sacramento - Stockton (888) 333-8270 rpcourtreporters.com© 13:40: aad: 13:40: 13:40; 13:40: 13:40: 13:41: 13:41: 13:41: 13:41: 13:41: 13:41: 13:41: “ans 13:41: 13:41; 13:42: eta: 13:42: 13:42: 13:42; 13:42: 13:42: 13:42: 13:42: 40 45 24 Richard John Marcucci , 04/03/2019 A. No. Q. Do these siphons typically create any visible sign that they're operating in the river, like a whirlpool or any disturbance of the water when they're operating? A. No. Q. , Do you they create any sound on the riverside? A. No. ’ (Mr. Pahlke joins deposition proceedings.) a aa oe aE Q. To your knowledge, did the farm do anything to warn people on the Delta about the -- strike that question. Q. Or warn them about the pipes when they were in : 108 Royal Phillips Court Reporters SF - Sacramento - Stockton (888) 333-8270 tpcourtreporters.com13353:47 13:53:48 13:53:51 13:53:52 - 13353:54 _ 13:53:55 © 13:53:58 13:54:05 13:54:07 13:54:11 13:54:17 13:54:20 13:54:21 13:54:25 13:54:26 13:54:27. 13:54:31 13:54;32 13154534 13:54:41 13:54:41 13:54:43 ° 13:54:44 13:54:46 13:55:14 Richard John Marcucci 04/03/2019 Q. * I'm talking about. when it was in operation, sometimes it would shut off on its own? A. Yes... QO. ¢ Okay. Due to air getting in there or something? a. Sucking air and low tides. Q. And that had been going on for years? A. On and off. On and off. Q. And that was to help keep the siphon operating even at lower tides? A. We were hoping, yes. 24 25 2 NO Q No? PA. No. Q. Had any of the siphons prior to June of 2018 ever become clogged? 117 Royal Phillips Court Reporters SF - Sacramento - Stockton (888) 333-8270 rpcourtreporters.com13:55:17 13:55:47 13:55:19 13:55:26 13:55:31 13:55:32 13:55:35 13:55:36 13:55:40 , 13:55:44 13:55:47 13:55:48 13:56:00 13:56:05 13:56:07 13:56:26 13:56:32 13:56:35 13:56:36 13:56:38 13:56:50 13:56:53 13:56:55 13:56:58 13:57:00 Richard John Marcucci 04/03/2019 No. . And stopped due to clogs? Due to clogs, no. oO FP Oo Could that cause a siphon to stop operating if it got clogged? . , MR. CALDWELL: Object, lacks foundation, calls for speculation. THE WITNESS: It could. It could stop. Q. BY MR. SAELTZER: Have you ever had that happen in any siphon you were working with? Q. Did the fact that this pipe where the incident occurred had been shutting off due to air getting into it, did that cause you any safety concern prior to this incident? A. Safety concerns, no, Q. All right. So who would do -- if you needed maintenance .or repair work done to these pipes, who would you hire to do that? AL I would hire Holt Repair. They are the ones that work on our siphons. Q. . Anybody else besides Holt work on your siphons 118 Royal Phillips Court Reporters . SF - Sacramento - Stockton (888) 333-8270 rpcourtreporters,com4 4 14 4: 4; 14; 14: Md: la: M4: 14: 14; ua: 14: 14: 14: ua: 14: :15:08 145341 (15:12 15:14 15:16 15:18 15:20 15:21 15:40 15:40 15:42 15:47 15:50 15:52 15:53 15:56 15:58 15:59 Richard John Marcucci ° 04/03/2019 1 MR. CALDWELL: 2 MS. GONZALEZ: 4 just the photos. 5 MR. SAELTZER: Here. .I don't need any of them. 6 MR. CALDWELL: Yeah, okay. 7 MR. SAELTZER: Can you pass them all down. 8 MR. CALDWELL: All right. Pie: SoU ue EEE Aen 3 MR. SAELTZER: We have already got -- I don't have one. You have seen them. They ate. 132 Royal Phillips Court Reporters SF - Sacramento - Stockton {888) 333-8270 tpcourtreporters.com14:16:04 14:16:07 14:16:07 14:16:13 14:16:15 14:16:18 14:16:24 14:16:30 14:16:30 ~ 14:16:33 14:16:36 14:16:39 14:16:42 14:16:45 14:16:49 14:16:54 14516356 14:16:57 14:17:01 14:17:07 14:17:10 14:17:10 4:17:42 14:17:15 U:1T:16 Richard John Marcucci 04/03/2019 Q. ’ The reason I gave. you the photos is these are photos that have been produced showing the work. Do you know, would you typically go to the site if work like this was occurring? A. Sometimes I would. But, you know, depending on their schedule; they come in and out. And I wasn't there at the time they did this. Q. How do you know that? A. * I don't recall any of this. Q. Did you have any understanding as to how they were -- well, they were going to need to crane out the pipe, true? A. Correct. . Q. How they were going to connect to the pipe to crane it out? MS. GONZALEZ: Objection, calls for 133 Royal Phillips Court Reporters SF - Sacramento - Stockton (888) 333-8270 rpcourtreporters.com15:21:59 15:21:59 15:22:01 15:22:06 15:22:09 15:22:09 15:22:15 15:22:17 15:22:19 15:22:22 - 15:22:28 15:22:30 15:22:33 15:22:33 15:22:42 15:22:45 15:22:51 15:22:53 15:22:54 15:22:56. 15:23:09 15:23:15 15:23:19 15:23:24 15:23:26 uo & Ww 24 25 Richard John Marcucci 04/03/2019 the present? A. No. Q. Any role in the design for any of the pipes that were on the property prior to 2007? A. No. Q. Is it -- now, I understand you -- you're extensively familiar with the property when you took ownership and such. Have you known the property to have the eight siphons, plus the ninth Upper Jones Tract’ siphon, for that to be the total number ‘of siphons on the property for that entire period? A. Correct, yeah. Q. And as you sit here today, do you have a current understanding of the -~- strike that. You testified earliér that you haven't done- anything after this incident to determine what shape the pipes terminate in on your property. .Do you remember that area of questioning? 170 Royal Phillips Court Reporters : SF - Sacramento - Stockton (888) 333-8270 tpcourtreporters.com15:25:24 15:25:26 15:25:29 15:25:42 15:25:48 15:25:51 15:25:54 15:25:54 15:26:03 15:26:05 15:26:05 15:26:08 15:26:16 15:26:19 15:26:23 15:26:26 15:26:26 15:26:28 “15:26:33 15:26:33 15:26:34 15:26:36 15:26:38 15:26:39 Richard John Marcucci 04/03/2019 24 25 that was done in 2016 to determine if there were any holes in the pipe for the portion under water? SRC US EOMuOEE DT aCUaCe cum a a Q. BY MS. GONZALEZ: So generally, you testified earlier that repairs or work on the pipes on your properties have been performed by Holt Manufacturing, - correct? A. Correct. Q. And at no other point any other company has performed repair or welding on any of the pipes on the Te Velde property? , A. No. Q. Okay. I understand that Dino & Sons did the work for the pipe when it was replaced after this | incident, correct? A. That's correct. 173 Royal Phillips Court Reporters SF - Sacramento - Stockton (888) 333-8270 rpcourtreporters.com15:47:58 15:47:58 15:48:10 15:48:45 15:48:23 15:48:26 15:48:30 15:48:30 15:48:34 15348;39 15:48:42 15:48:44 15:48:45 15:48:51 15:48:54 15:48:54 15:49:04 15:49:01 15:49:02 15:49:03 15:49:05 _ 15:49:10 15:49:12 Richard John Marcucci 04/03/2019 A. No. Q. Okay. Okay. Now, we had started talking generally just about Te Velde's maintenance of the pipes. I understand -- well, strike that. Q. Okay. Do you, and by "you" I'm talking about you personally or anyone on behalf of Te Velde, have a custom or practice of maintaining any log or written record of any work that's performed on the pipes of the property? A. No. Besides our bills. Q. Now, I understand there was a series of questions between the work that was done with Holt. And I understand any writings regarding of that work only consists of the invoices, correct? AL " Correct. Q. You don't submit anything. in like a writing request to Holt for the work -- A. No. Q. -- correct? Is there anything in writing that you would do after Holt has performed work to sign off, other than the invoice? A. No. 175 . Royal Phillips Court Reporters . SF - Sacramento - Stockton (888) 333-8270 ~ rpcourtreporters.com15:49:12 © 15:49:17 15:49:22 15:49:25 15:49:28 15:49:30 15:49:33 15:49:34 15:49:42 15:49:45 15:49:46 15:49:56 15:50:01 15:50:01 15:50:02 15:50:05 15:50:05 15:50:06 15:50:10 15:50:13 15:50:14 "45:50:18 15:50:26 15:50:31 15:50:36 Richard John Marcuccl 04/03/2019 Q. Would anyone other than yourself have the role of checking Holt's work after it's performed? A. “ No. ¢ Q. And I understand that you would contact Mr. Burgin for any work that was performed by Holt, correct? A. Correct. Q. Did you ever any conversations with Glen Bergen? A. No. Q. Other than Greg, was there anyone else at Holt that you would have conversations with to perform work on the property? . A. No, I talked to Greg. QO. So understanding that there was no regularly scheduled review of these pipes, what -- how -- what would be the process then for making a request for repair work? 176 Royal Phillips Court Reporters SF - Sacramento - Stockton (888) 333-8270 rpcourtreporters,com‘6: le: - 16; 16: 16: 16: 16: 16: 16: 16: 16: 16: 16: 16: 16: 16: 16: 16: i: 10:28 10:29 10:35 10:38 Richard John Marcucci 04/03/2019 A. I don't know. Q. And, generally, when you request work from Holt to replace the pipe, the length of the pipe, is that to just -- strike that. Terrible question. A. “Okay. , Q. “You just stated that you asked them to replace the pipe as is, correct? A... Yeah. Q. I have seen several references in these invoices as the north drain pump station. Do you know what station that is referring to? A. It's the drain pump east of that siphon number 189 Royal Phillips Court Reporters SF - Sacramento - Stockton - (888) 333-8270 rpcourtreporters.com16:18:56 16:18:57 16:18:59 16:19:00 16:19:07 16:19:24 16:19:26 16:19:31 16:19:31 16:19:32 16:19:35 16:19:37, 16:19:38 16:19:39 16:19:48 16:19:51 16:19:54 16:19:57 16:20:00 16:20:02 16:20:06 16:20:09 16:20:10 16:20:10 16:20:13 Richard John Marcucci 04/03/2019 Q. Correct. So that makes four, correct? Yes. Correct. Do you know LE Holt did any work on the subject more than four days in August of 2016? : Repeat that one more time there. Sure. Well, actually, let me strike that and start over. multiple- A. And do you know if that was a one-day job or a day: job? I don't -- I don't recall. Okay. Were you there when Holt performed the No. -- on the water side in 2016? No. 194 Royal Phillips Court Reporters SF - Sacramento - Stockton ~ (888) 333-8270 tpcourtreporters.com16 16 16: 16: 16: 16: 16: 16: 16: 16: 16: 16 16 16 45 16 16: 16: 16 16: “16: 16: 16 16 16 1:20:14 :20:21 20:25" 20:30 20:33 20:40 20:44 20:47 20:48 20:49 20;51 1:20:55 2:20:59 2:20:59 2:21:05 3:21:10 21:14 21:19 3:21:22 24:27 21:32 21:35 121:36 1:21:39 2:21:41 Richard John Marcucci 04/03/2019 Q. ‘Of these invoices that are in front of you for Exhibit 69, do you have any knowledge if these refer to that work that was performed to extend the ten feet in 2016? A. It would be invoice 11601. Q. Beyond this invoice, do any of the other. invoices appear to you to be referring to the work in 2016? Q. And at that time, did you know why you were having problems with the pipe?’ A. At that time, no, igs Royal Phillips Court Reporters SF - Sacramento - Stockton (888) 333-8270 rpcourtreporters.com16 16 le: 16: 16 16: 16: 16 16 16: 16: 16 16: 16 16 16: 16; 16: 16: 16: 16; 16: 123: 323; 123: 223: 123: 323; 23: 23: 23: 24: 24: 124:13- 24:32 1:24:57 :25:00 Richard John Marcucci 04/03/2019 Q. I won't painstakingly go through the rest of the invoices, but I will mark as Exhibit 79? 78. I apologize. I only have one photograph, Spencer. / (Defendant's Exhibit 78 marked for identification. } Q. BY MS. GONZALEZ: Mr. Marcucci, what I have just handed to you is a photograph. We have marked that as Exhibit 78. Have you ever -seen this paragraph before? A. I can't say I have, no. Q. Okay. Well, I will represent to you. that this was a photograph that was taken during an inspection that occurred with all of the counsel in this current. matter. 197 Royal Phillips Court Reporters. . . SF - Sacramento - Stockton (888) 333-8270 tpcourtreporters.comRichard John Mareucci 04/03/2019 16:25:20 1 And you understand that we have been discussing 16:25:22 2 a T section that was found on the side of subject pipe 16:25:29 3 sometime after the incident, correct? 16:25:29 4 A. Correct. . 16:25:29 Gea “16:25:32 GEE 16:25:35 (GES 16:25:38 16:25:39 16:25:39 16:25:43 16:25:51. GRRE 16:25:53 13 | Q. Over your several decades of work with Holt 16:26:07 14 Repair, have you ever had any criticisms or complaints 16:26:10 15 | regarding the quality of their work? 16:26:12 16 A. No. . 16:26:13 17 | Q. Have you ever had any experience with -- with 16:26:23 18 | pipes that had been welded on by Holt having broken off 16:26:30 19 | under the water line? 16:26:30 20 A. No. 16:26:30 21 | Q. Have you ever been aware of any injury to any 16:26:33 22 person as a result of the work performed on a pipe -- 16:26:40 23 strike that. Let me start that one over again. 16:26:44 24 ‘ Have you evér been aware of a person becoming "16:26:46 25 injured on a siphon because of work that was performed 198 Royal Phillips Court Reporters SF - Sacramento - Stockton - (888) 333-8270 . . Tpcourtreporters.com16:26:50 16:26:50 16:26:51 16:26:58 16527:02 16:27:06 16:27:08 16:27:11- 16:27:12 16:27:13 | 16:27:16 16:27:17 16:27:21 16:27:21 16:27:27 16:27:28 16:27:31 16;27:36 16:27:37 16:27:39 16:27:40 I HD UB Richard John Marcucci 04/03/2019 by Holt? A. No.. Q. - Other than perhaps your attorney or something after this litigation began, has anyone ever else -- has anyone else ever suggested to you that this accident in question that we have been discussing today happened as a result of the work that was performed by Holt? A. No. MS. GONZALEZ: I don't have any more questions. MR: PAHLKE: Do you mind if I ask a couple of follow-up questions? MR. CALDWELL: Do I mind? MR. PAHLKE: Yeah. ‘Well, I'm not Doug, you know. Don't worry. MR. CALDWELL: Just kidding. . EXAMINATION BY MR. PAHLKE Q. Hi, Mr. Marcucci. Royal Phillips Court Reporters SF - Sacramento - Stockton (888) 333-8270 rpcourtreporters.com16:27:43 16:27:47 16:27:47 16:27:49 16:27:50 16:27:50 16:27:55 16:27:55 16:27;57 16:28:00 16:28:01 16:28:02 16:28:04 16:28:05 16:28:06 16:28:08 16:28:11 16:28:13 16:28:15 “24 25 Richard John Marcucci 04/03/2019 Qo. Were you there at any time while they were doing that add-on work? A. "No. Q. Presumably you looked just from up above the water, not inside the water -- A. " Correct. Q. -- undex the water? A. Right. Q.- When you did that inspection, did you have any idea if there was a T attached to the end of that pipe or not? A. Yeah, no, didn't know. Q. Did you have any expectation of whether there was one attached? A. No. MR.’ PAHLKE: Thank you very much. THE WITNESS: Okay. THE VIDEOGRAPHER: That's it? MS. GONZALEZ: Yes. THE VIDEOGRAPHER: Going off the record, approximately, 4:28. THE REPORTER: ‘Does anyone want a copy of the- transcript? 200 Royal Phillips Court Reporters SF - Sacramento - Stockton (888) 333-8270 . rpcourtreporters.comuo fF Ww Ny RB Richard John Marcucci . 04/03/2019 Please be advised that I have read the foregoing deposition. I state there are: (Check one) NO CORRECTIONS CORRECTIONS ATTACHED ‘RICHARD JOHN MARCUCCI Date Signed Case Title: TOVAR vs. TE VELDE Date of Deposition: APRIL 3, 2019 Job No: 9404RP1 --000-- 202 Royal Phiilips Court Reporters SF - Sacramento - Stockton (888) 333-8270 rpcourtreporters.com .EXHIBIT C24 25 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN JOAQUIN MONA TOVAR, individually and as Special Administrator of the Estate of Carlos Alexander Tovar, Deceased, and IZAIAH TOVAR and OLIVIA TOVAR, Minors, by and through their Guardian ad Lite MONA TOVAR, + Plaintiffs, vs. Case No.: . STK-CV-UPI-10826 BERNARD TE VELDE and REBECCA DEE TE VELDE, Trustees of.the 2000 Te Velde Family Trust, HOLT REPAIR & MANUFACTURING, INC., and DOES ONE through ONE HUNDRED, inclusive, Defendants. VIDEOTAPED DEPOSITION OF KENNETH FRYAR Monday, April 8, 2019 2:09 p.m. Taken in the offices of: © CALIFORNIA DEPOSITION REPORTERS 2453 Grand Canal Boulevard, Suite J Stockton, California REPORTED BY: KAREN A. AUFDERMAUR, CSR 10919 California Deposition Reporters (209) 478-3377 or (800) 442-3377APPEARANCES: ‘FOR PLAINTIFFS: FOR WALKUP, MELODIA, KELLY, WECHT & SCHOENBERGER BY: SPENCER J. PAHLKE, ATTORNEY AT LAW 650 California Street, 26th Floor San Francisco, California 94108 T: 415.981.7210 F: 415.391.6965 spahlke@walkuplawoffice.com DEFENDANTS BERNARD TE VELDE and REBECCA DEE TE VELDE: FOR LAW OFFICE OF SHAWN C. MOORE BY: CRAIG A. CALDWELL, ATTORNEY AT LAW -2251 Harvard Street, Suite 100 Sacramento, California 95815 T: 916.921.9353 FP: 916.921.9040 craig.caldwellenationwide.com DEFENDANT HOLT REPAIR & MANUFACTURING: G & P SCHICK BY: ERICA C. GONZALEZ, ATTORNEY AT LAW 99 Almaden Boulevard, Suite 740 San Jose, California 95113 T: 408.995.5050 F: 408.995.5150 egonzalez@gpschicklaw.com ALSO PRESENT: Joshua Headrick, Videographer Karen A. Aufdermaur, Reporter ---000--- California Deposition Reporters (209) 478-3377 or (800) 442-3377welding certification? A. . I believe 2002. Q. And what type of welding certification did you receive? A. Structural. Q. You've got a question mark at the end of that answer. Is that your best answer, that’ it was a structural welding certification? A. I'm not -- I can -- I don't really understand the question. Q. Okay. Who did you get your welding certification through? , AL Through Holt Repair. Q. Okay.. Somehow in-house they did that for you? A, Yes. : , Q. : okay. ‘and when did that lapse, to your knowledge? : A. 2007. Q. Okay. And so for the last three years while you've been working at Holt you've been doing a lot of welding and without a certification; right? A. Correct. California Deposition Reporters (209) 478-3377 or (800) 442-3377 7a @6888ae6.- @ees 6 Q. What's Daniel's last name? A. I'm terrible. I apologize. I don't know. PIS emvour eo) Q. All right. Would I be correct in assuming that you very frequently weld two pieces of pipe .together? A. Yes. Q. Okay. For example, when you're doing the work on this particular siphon pipe, you've got 12-inch diameter ’ pipes and you're adding an extension, you're doing a weld. on one end to the extending pipe and then the California Deposition Reporters (209) 478-3377 or (800) 442-3377 7224 25 DECLARATION UNDER PENALTY OF PERJURY I, KENNETH FRYAR, do hereby certify under penalty of perjury that I have read the foregoing transcript of. my deposition taken on April 8, 2019; that I have made such corrections as appear noted on the Deposition ‘Errata page, attached hereto, signed by me; that my correct. Dated this day of, : , 2019 at , California. KENNETH FRYAR testimony as contained herein, as corrected, is true and California Deposition Reporters (209) 478-3377 or (800) 442-3377 95EXHIBIT DSUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN JOAQUIN MONA TOVAR, individually and as Special Administrator of the Estate of Carlos Alexander Tovar, Deceased, and IZATAH TOVAR and OLIVIA TOVAR, Minors, by and through their Guardian ad Litem MONA TOVAR, Plaintiffs, vs. Case No.: STK-CV-UPI-10826 BERNARD TE VELDE and REBECCA DEE TE VELDE, Trustees of the 2000 Te Velde Family Trust, HOLT REPAIR & MANUFACTURING, INC., and DOES ONE_ through ONE HUNDRED, inclusive, Defendants. VIDEOTAPED DEPOSITION OF BOBBY FRYAR Monday, April 8, 2019 9:03.a.m. Taken in the offices of: CALIFORNIA DEPOSITION REPORTERS 2453 Grand Canal Boulevard, Suite J Stockton, California REPORTED BY: KAREN A. AUFDERMAUR, CSR 10919 California Deposition Reporters (209) 478-3377 or (800) 442-337724 25 APPEARANCES: FOR PLAINTIFFS: WALKUP, MELODIA, KELLY, WECHT & SCHOENBERGER _ BY: SPENCER J. PAHLKE, ATTORNEY AT LAW 650 California Street, 26th Floor San Francisco, California 94108 T: 415.981.7210 F: 415.391.6965 spahlke@walkuplawoffice.com FOR DEFENDANTS BERNARD TE VELDE and REBECCA DEE TE VELDE: LAW OFFICE OF SHAWN C. MOORE BY: . CRAIG A. CALDWELL, ATTORNEY AT LAW 2251 Harvard Street, Suite 100 Sacramento, California 95815 T: 916,921,9353 F: 916.921.9040 craig.caldwell@nationwide.com FOR DEFENDANT HOLT REPAIR & MANUFACTURING: G & PB SCHICK | . BY: ERICA C. GONZALEZ, ATTORNEY AT LAW 99 Almaden Boulevard,: Suite 740 San Jose, California 95113 T: 408.995.5050 F: 408.995.5150 : egonzalez@gpschicklaw.com ALSO PRESENT: Joshua Headrick, Videographer Karen A. Aufdermaur, Reporter ---000--- California Deposition Reporters (209) 478-3377 or (800) 442-3377B SO ee ® wv 2 Ss A. Well, we shared responsibilities, so I was from say '88 until 2000 -- 2000. Q. And. before that were you acting effectively as a foreman? A. I -- yes, I was. Q. For how. long? A. Add another five years. So about ten years. Q. Before you were -- you were an acting foreman, what else did you do at Holt Repair & Manufacturing? A. . TIT used to weld, fabricate, heavy equipment operator obviously, laborer even. 'Q.. Aside from the formal job title of foreman, - what other job titles have you had at Holt Repair & Manufacturing? | A. None. That was it. Q. What are your responsibilities as a foreman? A. My responsibilities as foreman is to make sure men and material and equipment arrive to the job site California Deposition Reporters (209) 478-3377 or (800) 442-3377 41525 configuration of siphon pipe? B. I do not know that, no. Q. You've said that grass and hyacinth, that kind of stuff, gets sucked through -- sucked into these pipes sometimes; right? A. Yes. Q. Any other debris you've seen get sucked into or through a pipe? . Maybe trash, anything like that? A. No.- Q. Are there any preventative measures that Holt Repair & Manufacturing takes on behalf of its customers to prevent clogs in siphon pipes? A. We put aT. Q. Why do you do that? A. .» If one side plugs up, the other side can still draw water. Q. _ Do you -- strike that. Q. Another example of you guys doing what the California Deposition Reporters . (209) 478-3377 or (800) 442-337724 25 Q. You've seen them before it sounds like? A. Under the water. Not clearly, but under the water. , Q. Do you know if they have any other purpose aside from keeping fish out? / MS. GONZALEZ: Objection; calls for speculation, THE WITNESS: No. MR. PAHLKE: Q. -At Holt Repair & Manufacturing have you guys ever discussed putting anything on the ends of inlets aside from Ts? A. - No. Q. Do you have any idea what the. cost is of putting one of these fish screens on the inlet of a pipe? A. No. Q. Are you aware of any -- well, strike that. Q. ‘Let's say you guys are doing some work on an inlet side of a siphon pipe, 12-inch pipe, in the year California Deposition Reporters (209) 478-3377 or (800) 442-3377 492018. Do you know what the added cost is of putting a T on the end of that thing? , MS. GONZALEZ: - Objection; vague, overbroad. THE WITNESS:. No, I don't. : MR. PAHLKE: Q. How would you figure that out? A I would let my boss Greg figure it out. Q Greg handles all the costs and everything? A. Yes.- Q , Do you handle any aspect of the billing for Holt Repair & Manufacturing? A. No. Q. Do you know what the costs are for any of its products? A. No. Q. Do you know what the costs are for any of its services? A No : SERISTEIED California Deposition Reporters (209) 478-3377 or (800) 442-3377 50 i i i : |24 25 MR. CALDWELL: Objection; lacks foundation, calls for speculation. MR. PAHLKE: Q. And you know that because you've talked to Greg about it.I assume? A. Greg tells us what to do and we go and do it. Q. And through the years you've come to understand what ‘Greg's business practices are in that regard? MS. GONZALEZ: Objection; lacks foundation. MR. CALDWELL: Join. THE WITNESS: Not fully. To be honest with you not fully because I don't handle that kind of -- MR. PAHLKE: -Q. When you guys give instructions to install a pipe, are you ever told we want the inlet at such. and such depth from like mean tide levels or from the road? A. Yes, if we ware working for the reclamation district and we are doing levee lifts. Q. . What's a levee lift? A. Is where we're raising the levee by*a few feet in order to stay above the hundred year floodplain. Q. So in that situation where you're raising the levee, you may then install a siphon inlet at a certain depth? A. Yes. California Deposition Reporters {209) 478-3377 or (800) 442-3377 . So24 25 Q. Do you recall when he came by? -- it could be 9:00 o'clock, it could be 10:00 o'clock. Q. Earlier in the day as opposed to later? A. Yeah, yes. Q. When as part of this’ project did you write down what you have in Exhibit 76? A. That would be as soon as the job was done. Q. - Okay. A, Before I left the job site I wrote -- wrote down. Because I have to have the measurements and everything like that so I could turn in. Q. So you would have written this while you were done while you were out there on the job site? Q. was there any discussion of whether a T would be put on the pipe? A. TE there was. one, it would have stayed on there. MR. CALDWELL: Objection; that's nonresponsive. MR. PAHLKE: Q. In other words -- well, strike that. Let's go through the process here a little bit. A. The same day. It was -- exactly the time, no. I California Deposition Reporters (209) 478-3377 or (800) 442-3377 88not working properly? UA. No. Plugging. All the grass or stuff would plug at low tide. Q. All the what stuff? A. All the water hyacinth and stuff at low tide would get down around the bottom and then they would have problems with it. Q. Was there any sign in this location that you saw on August 4, 2016 that there was an issue with stuff getting in the pipe and plugging it? A. No. Q. When you went out to the job site on August 4th, did you know if there was a -- if there was supposed to .be a T on the end of the existing pipe? A. No, I did not know that. Q.° Okay. Was it Holt's standard operating procedure when putting -- when replacing siphon pipes in the water if they did not have a T on the end to attach one?. California Deposition Reporters (209) 478-3377 or (800) 442-3377 139DECLARATION UNDER PENALTY OF PERJURY I, BOBBY FRYAR, do hereby certify under penalty of perjury that I have read the foregoing transcript of my deposition taken on April 8, 2019; that I have made such corrections as appear noted on the Deposition Errata page, attached hereto, signed by me; that my testimony as contained herein, as corrected, is true and correct. Dated this day of, , 2019 at ; California. BOBBY FRYAR a California Deposition Reporters (209) 478-3377 or (800) 442-3377 168