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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
RALPH SIMPSON,
Plaintiff,
vs. Case No. 1-05-CV-053398
LOU RAE KAGEL, LYNN O'BRIEN,
JAMES O'BRIEN, STONEHENGE
PROPERTIES, INC., VALLEY OF
CALIFORNIA, INC., dba COLDWELL
BANKER, and DOES ONE through
TWENTY, inclusive,
Defendants.
_______________________________/
AND RELATED CROSS-ACTIONS
_______________________________/
DEPOSITION OF RANDALL I. BARKAN
Tuesday, January 9, 2007
951 Mariner's Island Boulevard, Suite 630
San Mateo, California
MADELEINE M. FREDA, INC.
Certified Shorthand Reporters
Reported by: 2000 Broadway
Joanne Haag P.O. Box 3119
CSR No. 4716 Redwood City, CA 94064
Our File No. (650) 365-6152
MADELEINE M. FREDA, INC. 1
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1 A P P E A R A N C E S
2 For the Plaintiff: GREENE, CHAUVEL, DESCALSO &
MINOLETTI
3 Attorneys at Law
951 Mariner's Island Boulevard
4 Suite 630
San Mateo, CA 94404
5 BY: PAUL G. MINOLETTI, ESQ.
6 For the Defendant GAGEN, McCOY, McMAHON & ARMSTRONG
Lou Rae Kagel: Attorneys at Law
7 279 Front Street
Danville, CA 94526
8 BY: CHARLES A. KOSS, ESQ.
9 For the Defendant LAW DIVISION OF NRT INCORPORATED
Valley of California WESTERN DIVISION
10 dba Coldwell Banker: 12657 Alcosta Boulevard, Suite 500
San Ramon, CA 94583
11 BY: STEPHEN W. THOMAS, ESQ.
12
13
14
15
16 BE IT REMEMBERED that, pursuant to Notice and
17 on Tuesday, January 9, 2007, commencing at the hour of
18 1:45 p.m., at 951 Mariner's Island Boulevard, Suite 630,
19 San Mateo, California, before JOANNE HAAG, CSR No. 4716,
20 personally appeared
21
22 RANDALL I. BARKAN
23
24 who was produced as a witness under the provisions of
25 Section 776 of the Evidence Code.
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1 I N D E X
2 Examination by: Page
3 Mr. Minoletti 4
4
5
6
7 EXHIBITS
8
9 Plaintiff's Exhibits:
10 1 Curriculum vitae 35
11 2 Handwritten notes 35
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 RANDALL I. BARKAN,
2 being duly sworn, was examined and testified as follows:
3 EXAMINATION BY MR. MINOLETTI
4 BY MR. MINOLETTI:
5 Q. Would you state your full name for the record,
6 please?
7 A. Randall, R-a-n-d-a-l-l, middle initial I,
8 Barkan, B-a-r-k-a-n.
9 Q. Mr. Barkan, my name is Paul Minoletti, I
10 represent the plaintiff Ralph Simpson in this case.
11 You've been designated as an expert to give opinions
12 about the standard of care of the real estate people
13 involved in this transaction.
14 Have you brought your file with you?
15 A. I have.
16 Q. Okay. Can you tell me, describe for me what
17 you have with you?
18 A. Sure. Most of this is deposition transcripts,
19 at least in terms of volume.
20 I've got a transmittal letter and the notice of
21 taking my deposition; exhibits to Mr. Simpson's
22 deposition, Mr. Stroupe's deposition, Mrs. Simpson's
23 deposition, Ryan Simpson's deposition, and Ralph
24 Simpson's deposition. Mediation briefs on behalf of
25 Mr. Rea, Mr. Simpson, and Ms. Kagel. Deposition of
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1 Ms. Kagel.
2 Transmittal memo for Kagel and O'Brien
3 deposition transcripts. Confirmation of my retention
4 and also enclosing copies of the complaint and answers
5 as well as the mediation statements. And I have those
6 pleadings, cross-complaint.
7 Deposition of Mr. Rea and exhibits, transmittal
8 letter for that. Deposition of Ms. O'Brien. And this
9 stack I'm pretty sure are the exhibits to -- I believe
10 they're the exhibits to Ms. Kagel's deposition, they're
11 Exhibits 37 through 105. And then I have a page and a
12 half of notes.
13 Q. Okay. Let me ask you this about the
14 depositions. Have you read all of them?
15 A. All of these, yes.
16 Q. When you say all of these, you're holding some
17 in your hand but there are some on the table?
18 A. All of the ones that I mentioned, all of the
19 ones I received, yes.
20 Q. You've read them?
21 A. Yes.
22 Q. Have you marked up the transcripts in any way?
23 A. I have used a highlighter on some of them, yes.
24 Q. Have you made any summaries or compilations of
25 any particular testimony that you've highlighted in the
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1 depositions?
2 A. No, I have not.
3 Q. Other than the handwritten notes, have you
4 created any other documents based on your work in this
5 case?
6 A. The process that I generally go through and
7 that I followed here is I make description and notes to
8 myself which I then refine to something shorter and more
9 concise, so the end product if you will are the page and
10 a half of notes that I have here.
11 The previous versions of it may contain more
12 verbiage but basically the same concepts and I just
13 refined it to this. And usually as I go from one draft
14 to the next, I discard the old ones. So I haven't kept
15 them.
16 Q. And that's what you did in this case?
17 A. That's my general practice and that's what I've
18 done here.
19 Q. Have you brought a current CV with you?
20 A. I'm sorry, I have not.
21 Q. I have one that was attached to the expert
22 disclosure, so I can ask you about that later.
23 A. Okay.
24 Q. Have you issued any billings?
25 A. Not yet, no.
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1 Q. Do you somehow keep track of the time you've
2 put in the case?
3 A. Yes. I took a quick look in the office before
4 I left this morning, it was in the neighborhood of 12 to
5 15 hours up to today.
6 Q. And you charge $200 an hour?
7 A. 375.
8 Q. 375 for all work?
9 A. Yes.
10 Q. But regardless of what work you're doing --
11 trial testimony, depo testimony, reviewing a file --
12 it's 375 an hour; is that correct?
13 A. Yes. I don't charge any more for depositions
14 or trial.
15 Q. Do you keep any sort of a log or record of the
16 time that you've put into the case?
17 A. I have, again, I sort of, I'm not the -- write
18 things sometimes on scraps of paper, envelopes,
19 Post-its.
20 Almost all of my work in this case has been in
21 just the last couple weeks so I have not yet put it all
22 down in one place, but the time is largely reading and
23 reviewing the deposition transcripts and the other
24 documents that I described a few minutes ago, and then
25 considering the issues and coming up with my opinions,
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1 refining them in the process that I described, and then
2 I had a conversation yesterday with Mr. Koss and
3 Mr. Thomas. And that essentially would account for all
4 of my time.
5 Q. And at some point after today I take it you're
6 going to generate an actual invoice or a bill?
7 A. Yes.
8 Q. Would you mind if I got a copy of that?
9 A. No, that would be fine.
10 Q. Other than your notes about billing and some of
11 the preliminary draft notes that you've thrown away,
12 have you brought with you today everything else that
13 you've either received or generated in connection with
14 this case?
15 A. Yes.
16 Q. I have a one-page resume or CV that was
17 attached to the expert disclosure. I'm just going to
18 ask you to take a look at it.
19 A. Sure. Yes, that's mine.
20 Q. Is this current?
21 A. Let's see. It's probably current as of the
22 time I provided it. The one thing that I've put on here
23 that's very recent, I've been asked by CEB to coauthor
24 the chapter on brokers in the next version of their Real
25 Property Sales Transactions book, hasn't been done yet,
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1 but I'm starting to note that on my CV.
2 Q. And I take it you've testified in deposition
3 before?
4 A. Yes.
5 Q. Approximately how many times?
6 A. Oh, probably between 30 and 40.
7 Q. Do I need to go over any of the deposition
8 ground rules with you?
9 A. No, I don't think so.
10 Q. And you've testified in court as well?
11 A. Yes.
12 Q. Approximately how many times?
13 A. Probably eight or 10.
14 Q. As far as you are aware, have you ever been
15 precluded from testifying in court as an expert in any
16 given area?
17 A. No, I have not.
18 Q. As far as you know, has a court ever limited
19 your testimony as an expert?
20 A. Not based on my experience or qualifications.
21 Maybe based on some legal issue in the case or some
22 ruling that had nothing to do with me personally.
23 Q. All right. Are you currently working with TRI?
24 A. Yes.
25 Q. And you are an officer?
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1 A. I am -- yes.
2 Q. And what's your --
3 A. I'm corporate secretary and corporate counsel.
4 Q. And where is their main office?
5 A. Headquarters is San Francisco, One California
6 Street.
7 Q. And do you work out of the headquarters?
8 A. No. I do most of my work from my office in
9 Pacific Grove.
10 Q. Okay. And how many people are in your office
11 with you in Pacific Grove?
12 A. Just me. Sometimes my dog.
13 Q. And how long have you been in your own office
14 in Pacific Grove?
15 A. Since August of 2001.
16 Q. And since August of 2001, what are your job
17 duties?
18 A. Well, from August 2001 to the present, I've had
19 a business called Realdispute through which I offer my
20 services as a consultant and expert witness. And from
21 approximately May of 2003 to the present I've had a
22 variety of responsibilities with TRI, primarily as their
23 corporate counsel and a member of their executive
24 committee. And so my two primary areas of work consists
25 of those two. Occasionally I will also do some more
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1 traditional legal work for a non-TRI client, but not
2 very often.
3 Q. Your Realdispute business, that's your expert
4 witness consulting?
5 A. Yes.
6 Q. Is that primarily involved with cases in
7 litigation?
8 A. Yes.
9 Q. How much of your time since 2003 have you spent
10 doing the Realdispute business as opposed to TRI or
11 anything else?
12 A. I'd say the Realdispute and TRI have been
13 roughly 50/50 over that period of time.
14 Q. And I may have asked this but your duties with
15 TRI consist of what?
16 A. At the present time I'm corporate secretary,
17 I'm corporate counsel, and I'm also a member of the
18 firm's executive committee.
19 Q. I understand the titles, but primarily what do
20 you do?
21 A. Okay. Well, I'm responsible for all of the
22 company's legal affairs, so that would run the gamut
23 from corporate issues, although primarily real estate
24 related issues. It is a real estate brokerage company,
25 full-service brokerage company, so it does pretty much
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1 everything in the commercial field, everything from land
2 to office leasing to investment sales to industrial to
3 property management.
4 So I am available as among other things to
5 consult with managers and agents on issues that come up
6 during the course of their deals, and then on I guess
7 you would call a more general business side, I have been
8 on and off the board of directors but I have remained on
9 the executive committee and I participate in regular
10 meetings, usually monthly at least, regarding the
11 ongoing business.
12 Q. The work with TRI, that involves commercial
13 real estate, primarily?
14 A. That is pretty much exclusively commercial.
15 Q. Your Realdispute business, what does that
16 involve in terms of commercial real estate versus
17 residential real estate?
18 A. It's a mix of both, and it varies from time to
19 time. It would just be an estimate, but the residential
20 component of that is probably at least 40 percent.
21 Q. In your Realdispute business, let's see, you
22 list a paragraph on your CV of what your expert services
23 involve, which include real estate development,
24 ownership, brokerage and litigation, including purchase
25 and sale transactions, contract disputes, due diligence
MADELEINE M. FREDA, INC. 12
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1 and contingencies, disclosure obligations, financing,
2 title and use issues, escrow and closings, adjoining
3 landowner issues, listing agreements, brokerage
4 practices, duties and standards of care, real estate
5 industry, custom and practice, and real estate remedies
6 and damages.
7 In this case, you were disclosed as an expert
8 on the duties and standards of care. Do you understand
9 that?
10 A. I don't recall. I know the issues that I have
11 considered and formed opinions on and they're a little
12 bit broader than that.
13 Q. Okay. What's your understanding of your
14 assignment in this case?
15 A. Well, as I understand it, this is not a
16 negligence case so -- and maybe this was my thinking
17 more than what anybody told me, but standard of care in
18 the traditional sense was not so much the way I
19 approached it.
20 It was -- although the way I approached it ends
21 up being very similar, I tried to take into account and
22 form my opinions regarding custom and practice in the
23 industry, both from the brokerage side and from the
24 standpoint of how high-end residential real estate
25 transactions in the bay area are generally conducted.
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1 And to look at the conduct, not only of the listing
2 broker and listing agent who was the focus of my
3 attention on the brokerage side, but also the buyer and
4 the seller.
5 And then I also have some opinions that relate
6 to damages, not in terms of -- not like an appraiser
7 would in terms of coming up with specific dollar values
8 but in terms of approaches towards measuring damages,
9 particularly in response to some of the testimony from
10 Mr. Simpson on the damage issues.
11 Q. On the custom and practice or standard of care
12 issues that you've looked at, you mentioned that you
13 used a certain methodology. What did you do to come up
14 with your opinions and conclusions?
15 A. Well, the methodology that I used here would be
16 the same that I would use on practically any case. I
17 start out by reading documentation such as the pleadings
18 and, in this case, the mediation briefs, which give me a
19 good overview of what each of the parties considers the
20 issues to be and what each party's factual and legal
21 contentions are.
22 And with that in mind I then read the
23 deposition testimony of the primary witnesses and in
24 this case some other witnesses as well. And then
25 essentially sit down and consider that -- oh, I'm sorry,
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1 I left out looking at all the exhibits. And in a
2 transaction such as this I would and in fact I did look
3 at the entire transaction file and some of the
4 correspondence back and forth and various brochures and
5 advertising materials that the plaintiffs claim to rely
6 upon. So I consider all that information and come to my
7 opinions.
8 In this case, I don't recall that I was
9 necessarily given a narrow assignment such as, you know,
10 limit yourself to the standard of care of the listing
11 agent. I looked at the issues that appeared to me to be
12 significant and within my area of expertise, and also
13 that were issues in the lawsuit. I didn't look at
14 things that did not appear to me to be issues in the
15 lawsuit.
16 For example, I understood that the agent
17 representing the buyers was no longer in the case so I
18 did not consider his conduct. In another situation I
19 might have, I might have had opinions on that, but here
20 I did not.
21 Q. What did you find to be then the significant
22 issues that you looked at?
23 A. With respect to the listing agent, and I may go
24 back and forth and use the term agent/broker somewhat
25 interchangeably, so unless you ask me a question that
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1 calls for some distinction between the two, I may use
2 either or both terms.
3 Q. Okay.
4 A. I looked at and considered the responsibilities
5 of the listing agent with respect to the disclosure of
6 information that comes to the listing agent from the
7 seller, both from the standpoint of general obligations,
8 how it's normally handled in the industry, to the
9 specific fact circumstances of this case.
10 Q. Let me ask you this. How is it normally
11 handled in the industry?
12 A. Generally speaking, the listing agent is
13 entitled to pass on information that is received from
14 the seller to prospective buyers without conducting an
15 independent investigation of those facts.
16 The exceptions would be that a listing agent is
17 required to conduct a visual inspection of the property,
18 and so if something comes to light through that visual
19 inspection or if from some other source the agent has
20 personal knowledge of facts that are in some way
21 inconsistent with what the seller is saying, that may
22 create a different set of obligations. But generally
23 speaking, it's presumed that the seller knows their
24 property and they are going to be the source of the
25 listing agent's information.
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1 The other general principle sort of coming at
2 it from the other direction is that the listing agent
3 does not have an obligation to investigate anything
4 off-site the property or things such as zoning, whether
5 or not city approvals are required to do something
6 further to the property and if so what conditions would
7 be placed on it.
8 Those are outside the scope of the duty to
9 visually inspect the property itself, and agents are not
10 required to go into those areas. They are generally
11 cautioned not to. If they do, again, they have some
12 responsibilities for what they find out or what they
13 disclose.
14 Q. When you say if they do, you mean if they
15 actually take it upon themselves to go contact a city or
16 a building department, for example?
17 A. Correct. And I did not understand that that
18 sort of thing occurred here.
19 The other general principles would be, and this
20 is as much a matter of common sense I guess as custom
21 and practice, every seller has a slightly different
22 experience with the property. Some people have lived in
23 a house for 20 years, some people have lived there for
24 two months, some people have actually built the house
25 that they are living in or have performed extensive
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1 remodel or renovation. Other people are totally
2 unfamiliar with the time frame and the process in which
3 the construction occurred.
4 So the extent to which a listing agent would be
5 entitled to feel comfortable with the information that
6 the seller gives them and the kinds of information, the
7 extent of the information that you could expect to be
8 reliable coming from the seller, differ depending on the
9 circumstances.
10 If the seller is an architect or a contractor,
11 for example, you can feel more comfortable with their
12 statements about the construction of the property. If
13 the seller themselves were responsible for either the
14 initial construction or remodeling to the house, you can
15 expect that they have more accurate firsthand knowledge
16 about what was done in the course of that activity as
17 opposed to a seller who may have just heard second- or
18 third- or fourth-hand from previous owners down the line
19 as to what happened.
20 Q. Does that cover generally what you looked into
21 in terms of significant issues on the custom and
22 practice side?
23 A. From the standpoint of general principles,
24 before really applying those principles to the facts of
25 this particular case.
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1 Q. Let's go to that, then. What did you do to
2 apply those general principles to the facts of this
3 particular case?
4 A. Well, I think I've already discussed that. I
5 took into account both the testimony and all the
6 documents that I had read and reviewed and looked at
7 what happened or in some instances, because there was
8 some fact or dispute what the various parties, different
9 points of view were on what happened.
10 Q. Did you try and make a determination or come to
11 an opinion as to who was telling the truth in their
12 deposition?
13 A. No, I did not.
14 Q. How did you evaluate the differing testimony
15 and come up with an opinion as to who did what?
16 A. I tried to avoid really making any such
17 determinations on my own since that's the province of
18 the trier of fact and not for me to say, and I attempted
19 to formulate my opinions in such a way as they would be
20 applicable under the -- as if the case were viewed by
21 the trier of fact in a manner consistent with the
22 plaintiff's side of the story.
23 Q. What opinions have you formulated with respect
24 to the custom and practice in the residential real
25 estate industry in this area with respect to this
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1 particular transaction?
2 A. In this particular case, the seller was
3 actually in the business of designing and building new
4 homes and appeared from my review of her deposition to
5 be fairly sophisticated in that area.
6 And under those circumstances, the listing
7 agent was in a position to feel very comfortable with
8 the statements and representations that the seller made
9 to her regarding the features and attributes of the
10 property.
11 There was every reason to believe not only that
12 the seller had an understanding and comprehension of
13 what she was talking about, but that she had very recent
14 firsthand knowledge of those facts.
15 So even more so than in the typical case, the
16 listing agent had no responsibility to investigate
17 beyond what the seller told her regarding these very
18 facts, and had no -- in the absence of any information
19 that she personally knew from some other source, was
20 perfectly entitled to rely on the representations of the
21 seller and to pass them on to prospective purchasers.
22 So that's especially true for features such as
23 those that I understand to be in dispute in this case,
24 that would be square footage of the structures on the
25 property, the available pool site, communications that
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1 the seller may have had with the city regarding
2 additional construction possibilities, and features of
3 the house that were not readily visible on the type of
4 inspection that the agent would have conducted, for
5 example, what type of wiring was in the house, whether a
6 switch that said air-conditioning in the guest house in
7 fact reflected that there was air-conditioning there.
8 So these are the sorts of things that even --
9 well, that in any case, an agent would generally learn
10 from a seller, would not have been, generally speaking,
11 the result of an agent's independent investigation. And
12 particularly in this case, new construction, a seller
13 who was involved in that new construction, the
14 reasonable presumption of any prospective buyer or any
15 broker on the other side of the transaction would be
16 that these types of statements and descriptions and
17 lists of features and attributes of the property such as
18 appeared in the advertising or the brochures came from
19 the seller, did not come from the listing agent's own
20 independent investigation.
21 And then there's an additional safeguard that's
22 built into this process, and that is that when the
23 listing agent prepares advertising the brochures, they
24 are provided to the seller for the seller's review, and
25 that's a way to double-check that the agent got it
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1 right, that the seller has, if you will, the last clear
2 chance if there's something that was miscommunicated
3 between them.
4 So looking at Plaintiff's testimony in this
5 case, it seemed to me that with the issues that appear
6 to be the two most significant issues especially, and
7 that would be the pool location issue and the issue
8 regarding the ability to add another structure of
9 approximately 800 square feet, both Mr. and Mrs. Simpson
10 testified in some detail that the types of statements
11 that were contained in the brochures regarding those two
12 matters were also discussed directly with them by -- in
13 a situation where both the seller and Ms. Kagel, the
14 listing agent, were present. And that comments
15 regarding one or the other or both of those two issues
16 were made by one or both, Ms. Kagel and the seller, in
17 each other's presence.
18 I then also took into account the testimony of
19 Ms. Kagel where she said that all the information that
20 she passed on regarding any of these issues came from
21 the seller. So that is consistent not only with what
22 would follow from the general practice and the general
23 principles, that that's also the plaintiff's view of the
24 case here.
25 So I saw nothing to suggest that any of these
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1 statements were made in a manner that would be outside
2 the protected area, if you will. There either was
3 information that came from the seller, sometimes through
4 the listing agent, sometimes directly, that was not
5 information that the listing agent had developed on her
6 own, and no evidence that I saw in any of the documents
7 or testimony that suggested to me that there was any
8 exception to the general rule here.
9 I didn't see anything that would have been or
10 should have been a red flag to the listing agent to say,
11 oops, seller told me this but there's something that
12 makes me feel uneasy about it. You know, that came up
13 later with the air-conditioning, and then of course that
14 issue was addressed. But it came up through
15 Mr. Simpson's actually trying to get the
16 air-conditioning to work, which was something that the
17 agent was not required to do herself.
18 The other possibility that I considered is
19 that, and I made some mention of it earlier, I mean,
20 hopefully the seller looked at whatever brochures were
21 provided to her by the listing agent and had a chance to
22 make sure that that information was what information in
23 fact the seller intended to say.
24 But even if there had somehow been some
25 miscommunication between them, which I see no reason to
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1 think happened but even if that were the case, at the
2 most, that would be some simple negligence on the part
3 of the listing agent.
4 So I really -- I really didn't see any improper
5 conduct of any sort. I didn't even see any evidence of
6 negligence. But just in trying to be broadminded about
7 what possibly could have happened, it seemed to me in
8 the worst case there was mere negligence on her part
9 with respect to some issue, that that would be only in
10 the instance where the seller said something and it
11 somehow got misinterpreted or miscommunicated. But even
12 that should not have happened because the seller would
13 have had a chance to catch that by reviewing the
14 brochures.
15 Q. Did you read the deposition of Lynn O'Brien?
16 A. I did.
17 Q. Just to summarize her testimony as I read it,
18 she did not review any of the brochures according to
19 her, and basically her testimony is that Lou Rae Kagel
20 created all of these marketing brochures without her
21 review. Did you take that into consideration at all?
22 A. Whether -- well, I mean, all the agent can do
23 is provide them for the seller's review. You can't
24 force somebody to read something and you don't
25 necessarily know whether they've read it or not.
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1 My understanding is they were provided for the
2 seller's review and in addition to that they were also
3 around the property, on the property, for a fairly
4 substantial period of time and that the seller herself
5 was active in some of the open houses, showing the
6 property to various buyers, including the Simpsons on
7 one occasion. And if I recall the Simpsons' testimony
8 correctly, they were personally handed a copy of one of
9 these brochures by Ms. O'Brien herself.
10 So she certainly had -- she had the documents
11 in her hands. I think it's -- at least Ms. Kagel was
12 entitled to believe she had reviewed them and was
13 familiar with them.
14 Q. Other than reading the materials, the
15 depositions and other things that have been provided to
16 you, have you spoken directly with anyone involved in
17 the case, other than the attorneys?
18 A. No, I have not.
19 Q. Okay. When were you first retained?
20 A. As best I can recall, sometime in the late
21 spring or early summer I had a phone call from
22 Mr. Thomas. That was a very preliminary nature, I think
23 it was primarily a conflicts check and to let me know
24 that I might be retained in this case.
25 Q. And that was late spring or summer 2006?
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1 A. As best I recall, yes.
2 Q. Now, have you worked with Mr. Thomas before?
3 A. Yes, I have.
4 Q. As an expert?
5 A. Yes.
6 Q. On how many occasions?
7 A. I think two.
8 Q. And did those cases involve a real estate
9 transaction?
10 A. Yes. Yes.
11 Q. And you were retained on behalf of whom?
12 A. Well, I'm generally retained by counsel, so I'm
13 not retained directly by the party.
14 Q. But the party that you were providing an
15 opinion on, who would that be in those two instances?
16 A. Both of those would have been Coldwell Banker
17 Residential.
18 Q. Do you recall the names of those cases?
19 A. One was Cleckley, I believe C-l-e-c-k-l-e-y,
20 and one was Scontrino, S-c-o-n-t-r-i-n-o.
21 Q. Did either of those cases go to trial?
22 A. I don't believe so.
23 Q. Did you give a deposition in either of those
24 cases?
25 A. In Cleckley I did.
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1 Q. And do you recall what counties these cases
2 were in?
3 A. I think Cleckley was in Santa Clara, and
4 Scontrino was in Monterey.
5 Q. Other than those two cases, have you worked
6 with or on behalf of Coldwell Banker on any other cases?
7 A. I had, I'm having a little difficulty
8 remembering, because I had cases where Coldwell Banker
9 was involved but I ended up being retained and working
10 for a different party. So for example, there was a case
11 where Coldwell Banker was involved, but before I got
12 into the case or about the time I got into -- I don't
13 remember the timing exactly, but they were dismissed on
14 a summary judgment and I actually ended up working for,
15 doing work for another party in the case.
16 Q. Have you ever worked with Mr. Koss or his firm?
17 A. Yes.
18 Q. On how many occasions?
19 A. I think altogether -- you said Mr. Koss or his
20 firm?
21 Q. Yes.
22 A. I believe four.
23 Q. Do you remember on whose behalf you were asked
24 to give opinions?
25 A. Let's see. I'm trying to remember this
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1 particular case.
2 There is one that I do not recall the name of
3 that may have been another Coldwell Banker case. I'm
4 sorry, I've had, I've been doing this now for about six
5 years and I have 10 or 12 cases a year on average, and
6 particularly the further back in time they were, the
7 more difficult it is for me to remember.
8 I know that the lawyer in the case, Mr. Koss's
9 firm, was Mr. Raines, and I'm just, I'm having
10 difficulty remembering exactly which case that was. But
11 it was a case that Mr. Koss's firm was involved in.
12 And then I've worked directly with Mr. Koss on
13 a case called Dohse, D-o-h-s-e, and his client in that
14 case are the purchasers of a property in Alameda County,
15 I believe. And the defendants are the seller and the
16 real estate brokerage involved.
17 And another one called Four J's, where
18 Mr. Koss's client again was the purchaser at this time
19 of a property on the north shore of Lake Tahoe. And
20 again the defendants were the sellers and the real
21 estate brokers.
22 Q. That's three. Was there one more?
23 A. And I think the other one I'm thinking of is I
24 think one of the cases that I mentioned where Coldwell
25 Banker was dismissed, I think I was initially called by
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1 Mr. Koss and I don't recall whether I did any work at
2 all up to the point where Coldwell Banker was then
3 dismissed.
4 I ultimately was retained by the lawyer who
5 represented one of the individual parties in that case.
6 Q. Of the three or four cases with Mr. Koss's
7 firm, did any of those go to trial?
8 A. No.
9 Q. Has your deposition been taken in any of those?
10 A. My deposition was taken in the Four J's case.
11 Q. How long ago --
12 A. I think that's the only one.
13 Q. How long ago was that?
14 A. It was last week -- last week? Yes.
15 Q. Do you remember the name of the attorney that
16 took your deposition?
17 A. I think it's Lawrence Chaffin, C-h-a-f-f-i-n.
18 Q. Is he somewhere here in the bay area?
19 A. He's in Sacramento.
20 MR. KOSS: By the way it's Bill Chaffin, just
21 to help you out.
22 THE WITNESS: Thank you. It's important I
23 remember your name, not his.
24 MR. KOSS: Very true.
25 BY MR. MINOLETTI:
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1 Q. Now, you testified that over the last six years
2 or so you've handled about 10 to 12 cases a year?
3 A. Yes, as an expert.
4 Q. As an expert. And that would be in conjunction
5 with your Realdispute consulting --
6 A. Yes.
7 Q. -- business? Okay. By the way is there anyone
8 else that's working with you in your consulting
9 business?
10 A. No.
11 Q. Did anyone assist you with your work on this
12 case?
13 A. No.
14 Q. Of the cases that you've handled over the last
15 six years, can you give me a percentage of how many were
16 on behalf of the defense, how many were on behalf of the
17 plaintiff?
18 A. It would be very close to 50/50.
19 Q. Have you ever been hired as an expert to
20 testify against Coldwell Banker?
21 A. Yes.
22 Q. On how many occasions?
23 A. Two that I can recall.
24 Q. Do you recall the names of the cases?
25 A. One was a case in San Francisco, and I'm trying
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1 to remember the name. I know it began with an L, but at
2 the moment I don't recall. Another one is a case that I
3 have currently.
4 The attorney who retained me, her client is an
5 entity called Hillsdale Car Wash. And it involved the
6 sale of some property in Burlingame but it was handled
7 by an -- a peninsula office of Coldwell Banker that as I
8 understand it primarily a residential brokerage but
9 happened to handle this transaction.
10 Q. The case in San Francisco, was that a
11 residential or a commercial property?
12 A. It was residential.
13 Q. In either of these two cases, the San Francisco
14 case or the Hillsdale case, do you recall the name of
15 the attorney that retained you?
16 A. The attorney who retained me in the Hillsdale
17 case, her name is Kathleen Panek, I think it's
18 P-a-n-e-k.
19 And I can picture the gentleman in the
20 San Francisco case. I can't remember his name. I want
21 to say that his last name was Duffy. I'm not sure
22 that's correct.
23 Q. How long ago was the San Francisco case?
24 A. It would have been probably three years ago.
25 Q. Was your deposition taken in either one of
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1 those cases?
2 A. No. The Hillsdale case is still pending so
3 that might happen.
4 Q. Do you have a broker's license?
5 A. Yes.
6 Q. And how long have you had that?
7 A. Since 1988.
8 Q. Before the broker's license, did you have a
9 sales license at all?
10 A. No, I did not.
11 Q. Have you actually actively been -- have you
12 actually sold properties as a broker?
13 A. I'm having a little -- it depends a little bit
14 on how you -- on how broadly you're intending that
15 question to be.
16 Did I ever put myself out or hold myself out or
17 perform brokerage services as an agent on the front
18 lines for the benefit of a third party? No.
19 Q. So to distinguish that, I take it you
20 supervised or participated in some transactions, but --
21 A. Oh, very much so. And also on at least one
22 occasion listed a property that was my own property for
23 sale, residential property, and my wife is a real estate
24 salesperson who currently has her license with me, and
25 I've supervised her in several transactions.
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1 And then of course while I was at Marcus &
2 Millichap I was the designated broker with a company
3 with approximately 250 agents in California, but that's
4 a much broader, more remote type of supervision than
5 what I interpreted your question to be asking for.
6 Q. You were with Marcus & Millichap for three,
7 four years?
8 A. No, for about 14 years.
9 Q. Oh, okay. Right. I'm reading this wrong.
10 1987 to 2000. Okay. Were you in the main office or the
11 headquarters of Marcus & Millichap?
12 A. Yes.
13 Q. Were there other brokers employed by Marcus &
14 Millichap when you were there or did you have
15 responsibility for all the 250 agents?
16 A. Well, I was the designated broker for the
17 company, actually for a number of Marcus & Millichap
18 companies vis-a-vis the Department of Real Estate. So
19 at least as far as the DRE was concerned, I was the
20 person with the supervisory authority.
21 Now, with respect to the larger brokerage
22 company with nine offices and 250 sales agents in
23 California, my supervisory authority was delegated to
24 the managers of the different offices, but obviously as
25 far as the DRE is concerned and as a factual matter I
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1 maintained some responsibilities for what happened. And
2 so I was involved in the, certainly was involved in the
3 supervision but not so much the day-to-day on-site
4 supervision.
5 Q. Before Marcus & Millichap, you worked for
6 Coldwell Banker Commercial?
7 A. Coldwell Banker Commercial, which is a company
8 which at that time was I believe not affiliated with
9 what is now the Coldwell Banker that's involved in this
10 case. It's a company that today is CB Richard Ellis.
11 Q. And before that you were in private legal
12 practice.
13 A. Yes.
14 Q. Is that Arnold Sternberg?
15 A. No, Allan.
16 Q. I had a teacher, I think --
17 A. Mm-hmm.
18 Q. And then before that you were in private law
19 practice with Heller Ehrman.
20 A. Right.
21 Q. Okay. Let me turn to your notes there. Maybe
22 I can make a copy of that now.
23 A. Sure.
24 Q. And that way you can take your original with
25 you.
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1 (Short recess taken.)
2 MR. MINOLETTI: First let me mark your CV as
3 Exhibit 1.
4 (Whereupon, Plaintiff's Exhibit 1 was
5 marked for identification.)
6 MR. MINOLETTI: Exhibit 2 will be a two-page or
7 a page and a half of your handwritten notes.
8 (Whereupon, Plaintiff's Exhibit 2 was
9 marked for identification.)
10 BY MR. MINOLETTI:
11 Q. If we could go over your notes.
12 A. Sure.
13 Q. If you'll notice, I don't know why the copy
14 machine cut off portions of this. So if we can go
15 through this quickly. There are some things I can't
16 quite read as well.
17 A. Really. My handwriting?
18 MR. KOSS: Do you want him to read the whole
19 document?
20 BY MR. MINOLETTI:
21 Q. If you don't mind it probably would be easier
22 that way.
23 A. All right. (Reading) Simpson versus
24 Kagel at the top. First topic:
25 Generally. Listing agent can rely on
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1 seller's representations, especially
2 with sophisticated seller actually
3 involved in construction, paren, common
4 sense, close paren. Exceptions. Next,
5 duty to conduct visual inspection. No
6 duty to check with third parties on
7 matters off-site or outside of
8 property, paren, and not generally
9 done, close paren.
10 Q. Can I stop you right there?
11 A. Yes.
12 Q. Have we talked about this general aspect of
13 your opinions already?
14 A. Yes.
15 Q. We've covered that.
16 A. Yes.
17 Q. All right.
18 A. Next topic: Representations re
19 features and attributes of Blanchard
20 property. So here where seller in the
21 business of designing and building new
22 homes, agent entitled to pass on
23 seller's representations without any
24 independent investigation. For
25 example, square footage, available pool
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1 site, communications with city re
2 additional construction and features
3 not readily visible, paren, wiring,
4 whether air-conditioning works, close
5 paren. These are sort of things agent
6 would learn from seller. No one would
7 expect they were the result of agent's
8 own independent investigation or
9 research. Additional safeguard:
10 Providing copies to seller.
11 Q. Again, if I can stop you. Have we covered
12 these aspects of your opinions?
13 A. Yes, I believe so.
14 Q. All right.
15 A. Next, testimony of plaintiffs.
16 Comments made jointly. Testimony of
17 Lou Rae Kagel, all information from
18 seller. Under these circumstances,
19 listing agent acted properly. Even if
20 Lou Rae Kagel misinterpreted some
21 statement by seller, simple negligence
22 at worst.
23 Q. And we've covered that?
24 A. And we've covered that. Now we're getting into
25 a new topic. As-is addendum, which was Exhibit 4, I
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1 believe, to Mr. Simpson's deposition, and particularly
2 paragraphs three and five of Exhibit 4:
3 Mr. Simpson deliberately,
4 intentionally, voluntarily offered the
5 as-is addendum in order to negotiate a
6 lower price, paren, he also offered
7 quick closing with no financing
8 contingency, close paren. He knowingly
9 accepted greater responsibility for
10 conducting his own investigation and
11 not relying on the seller or the
12 seller's agent. He then reneged.
13 Disclaimers in buyer advisories,
14 Exhibits 24 and 25, provide important
15 information, going to the issue of
16 plaintiff's reasonable reliance, but
17 the addendum contractually shifts the
18 burden of investigation in exchange for
19 valuable consideration.
20 Mr. Simpson then failed to get basic
21 inspections, strongly recommended by
22 his own agent -- Exhibit 16 -- and made
23 no effort to consult with the city, a
24 contractor, an architect or any other
25 expert regarding the conditions or the
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1 cost of adding a pool or other
2 structure. Paren, there are always
3 issues, conditions, and limitations on
4 such construction, close paren.
5 Next general heading or issue: Value
6 of additional 800-square foot building.
7 Not clear it would add value, except to
8 a particular user. Would render the
9 lot cluttered and unattractive.
10 Plaintiff's bootstrapped damage theory
11 based on dollars per square foot, not
12 how value is measured. Land and
13 location are the major elements, not
14 the square footage of the buildings.
15 Additional square feet would add only
16 an amount, an approximate amount
17 equivalent to the cost of building that
18 additional square footage. Plaintiff
19 takes the largest element of value,
20 land, attributes it to the structure on
21 a square-foot basis, then uses that,
22 quote, "value," close quote, for
23 additional building sitting on
24 800 square feet of land already owned
25 without deducting for the cost.
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1 Q. Thank you. Back to the first page where you
2 talk about the as-is addendum.
3 A. Right.
4 Q. You indicate that Mr. Simpson intentionally
5 voluntarily offered the as-is addendum. What do you
6 base that on?
7 A. His testimony. I thought his testimony was
8 very clear that he wanted to make an offer on this
9 property. He started with a fairly low-ball $3 million
10 offer on a property that was listed for 3.9 million. As
11 I recall, he got a counter at 3.7, and his testimony was
12 at that point he did not want to offer 3.7, he wanted to
13 offer something lower.
14 And he in conjunction with his agent decided
15 that there were some additional enticements they could
16 offer the seller that might compensate for a lower offer
17 and induce the seller to accept the somewhat lower
18 offer. And those things were a quick close, an offer
19 that had no financing contingency attached, and -- those
20 two things kind of going hand in hand, so financing
21 contingency is often a factor that prohibits a quick
22 close. And the other one that he obviously understood
23 at the time and presented in a fairly calculated way was
24 this as-is addendum.
25 Usually when you see this sort of addendum in a
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1 transaction like this, it's something that is requested
2 by the seller, or the agent representing the buyer knows
3 that the seller is going to expect it. But here,
4 Mr. Simpson was showing some sophistication by saying,
5 if I offer this it may be attractive to the seller and
6 make my somewhat lower offering price more easily
7 acceptable.
8 So he knowingly accepted that greater
9 responsibility for conducting his own investigations and
10 promising that he would not rely on the seller and the
11 seller's agent for certain things in exchange for
12 getting a lower price.
13 And really he reneged on this and on the
14 promise that he would do a quick close with no financing
15 contingency, because there were delays in the closing
16 which as I understand it ended up being harmful to the
17 seller, only because he had financing that his wife had
18 to sign on, otherwise he was the sole purchaser and her
19 signature would not have been necessary.
20 Q. Did you read in any of the exhibits or
21 depositions that were provided to you that at one point
22 the seller had asked Mr. Simpson through the agents to
23 put up one and a quarter million dollars as sort of a
24 deposit or an increase on the deposit?
25 A. I recall something like that, yes.
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1 Q. Did you have any opinions whether or not that
2 was an appropriate request?
3 A. I didn't think it was an inappropriate request.
4 My understanding of the circumstances at the time was
5 that Mr. Simpson was out of contract. He had a date by
6 which he had promised to close and he hadn't done so.
7 The sellers meanwhile, as I recall, were facing
8 some expenses in connection with the loan they had on
9 the property. Either the loan was due or some payments
10 were due -- I either don't remember the details or maybe
11 the details weren't in the testimony that I saw, but
12 there was some event and some cost that they were faced
13 with. So the sellers were looking for a way for -- I'm
14 sorry, I need to go back, one other factor.
15 Mr. Simpson was providing assurances that he
16 was going to close, he would close, he was perfectly
17 capable of closing, he had the cash necessary to close;
18 the problem was simply that the travel, his wife travel
19 delay due to the events of 9/11.
20 So in light of Mr. Simpson's repeated
21 assurances that he was going to close, that there was no
22 problem with the economics of the transaction or his
23 intentions and the seller's position that, number one,
24 he was out of contract and, number two, they were
25 looking at these additional costs, they were trying to
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1 find a way I think to solve the problem.
2 Now, they made an offer, which again I don't
3 think it was inappropriate, it wasn't necessary for
4 Mr. Simpson to accept it either, and he didn't.
5 Certainly as far as the agents are concerned, the
6 agents, once the seller makes that request or proposal,
7 are absolutely obligated to pass it on.
8 I recall that Mr. Simpson was very upset with
9 his own agent, I think it was maybe the only thing that
10 he really was -- oh, he was upset with Mr. Rea for only
11 two things: passing on this request which Mr. Rea was
12 absolutely obligated to do, and Mr. Rea's contributing
13 to the cost of the air-conditioning, which he of course
14 did on his own client's behalf.
15 Q. Further down in this section, again, there's
16 something about addendum, and then shifts burden of
17 investigation?
18 A. Oh. Well, yes. The as-is addendum, it's part
19 of the contract between the buyer and seller. And what
20 it does is it does shift the burden of investigation,
21 puts more of that burden on the buyer.
22 The buyer is agreeing to do things that the
23 buyer may have been advised to do previously or would
24 have been prudent for the buyer to do, but now the buyer
25 is contractually agreeing, I'm going to do those things,
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1 and is doing those things to lift some of the reliance
2 that the buyer otherwise might have been entitled to
3 place on the seller and the seller's agents.
4 I mean, that's my interpretation sort of
5 shorthand of what that one-page document does.
6 Q. And you say in exchange for valuable
7 consideration. What do you mean by the valuable
8 consideration?
9 A. A lower purchase price. I mean, 3.4, I believe
10 the ultimate contract price was $300,000 less than the
11 counter that was then on the table, and half a million
12 dollars less than the asking price.
13 Q. And when you say shifts the burden of
14 investigation, what types of things are we talking about
15 in terms of investigation?
16 A. Well, the ones that are most relevant here
17 would be the issues involving the possible addition of a
18 pool and the possible addition of another structure to
19 the property. Those are items that are always going to
20 involve some questions of uncertainty regarding cost,
21 regarding exactly what the city will let you do,
22 regarding what conditions or limitations they may place
23 on your doing it.
24 I mean, the mere fact that you have the right
25 to put up an 800-square-foot building doesn't mean you
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1 can just go out and do anything you want. You're still
2 going to have to go to the city and do it under a set of
3 criteria, whatever that might be.
4 So even in the ordinary circumstance, if
5 somebody were interested in doing that, it would be
6 reasonable and prudent for them to, if they actually
7 wanted to build, if it was of value to them and of
8 interest to them to build another structure, to find out
9 exactly what they can do. And because even if it turned
10 out that the more general statement that the seller made
11 was a hundred percent accurate, there still would be a
12 lot of questions about just what and how you could do it
13 and what it would cost.
14 So that's the kind of thing that in this
15 particular case, I think that addendum and that
16 additional undertaking by the purchaser are particularly
17 applicable to, that he would have said, okay, if this is
18 of interest or of value to me, then I can't just assume
19 from a couple words on a brochure that I can do anything
20 I want out there; I'm going to find out and go to the
21 city or I'm going to consult or retain with an architect
22 or a contractor and find out exactly what it is.
23 And he didn't do any of those things. He
24 didn't do it with respect to the pool. He didn't even
25 do some of the most basic inspections that his own agent
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1 strongly recommended that he do to the extent that his
2 own agent requested that he execute and he did execute
3 Exhibit 16, I believe, which said you've told me to do
4 all these things but I've made my own decision, I'm not
5 going to do it, and I assume that risk.
6 Q. Exhibit 16 is what?
7 A. Exhibit 16 is I believe the handwritten --
8 well, we can look at it. But as I recall, it was a
9 handwritten document done fairly late, maybe at or
10 around the time the contingencies were removed where
11 Mr. Simpson acknowledges that he was advised by Mr. Rea
12 to conduct various inspections, but despite that advice
13 he decided not to have them done. And when you're
14 paying almost three-and-a-half million dollars for a
15 piece of property, that's sort of penny-wise and
16 pound-foolish.
17 Q. You're not an appraiser, are you?
18 A. No.
19 Q. And you haven't made any effort to put a value
20 on the property, have you?
21 A. A specific dollar value, no.
22 Q. To your second page. Now, these are your
23 comments on the value that Mr. Simpson is placing on the
24 additional 800-square-foot structure?
25 A. Yes.
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1 Q. Where are you getting the information for your
2 comments?
3 A. The first two lines is just is an observation
4 from my own experience, which is that merely placing
5 another 800-square-foot structure somewhere on this
6 property doesn't automatically increase its value.
7 You have a pie-shaped lot, you have a fairly
8 big house in the front, the lot gets more narrower as
9 you go back. You now have a pool, and according to
10 Mrs. Simpson one of the most important things to her
11 about the whole property was what she intended to do
12 with the gardens and the landscaping. You also have
13 this existing guest house already there as a separate
14 structure.
15 So you start plopping another 800-square-foot
16 structure somewhere out there and whatever driveways,
17 walkways, whatever you might need to get access to it,
18 you're starting to eat up a lot more of the available
19 space on the lot which gets smaller and more narrow as
20 you go further back already. And the odds of carrying
21 that off in a way that's going to be aesthetically
22 pleasing are going to be somewhat limited.
23 The other aspect of this is that if you could
24 put another building out there and decided to do it,
25 it's likely that you're going to build something for a
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1 particular use.
2 For example, there was testimony by the
3 Simpsons that if they could do this, maybe they would
4 make it a four-car garage, which is great if you had
5 four more cars, but the average person doesn't and that
6 would be not a great amenity to have out there. If you
7 were a photographer maybe you'd make it a dark room but
8 if you weren't a photographer that wouldn't be of much
9 use to you.
10 So it's possible that a feature like that could
11 be of value to a particular user, a particular owner,
12 but not necessarily to everybody. And that's why I say
13 it wouldn't necessarily add any value at all.
14 The second part of this is really just based on
15 Mr. Simpson's testimony as to how he went about
16 calculating his damages. And from my experience in
17 30 years of real estate and buying and selling and
18 brokering lots of different kinds of properties, he's
19 just simply very, very wrong.
20 His methodology of taking the total price of
21 the property and dividing it by the number of square
22 feet is not the way you come up with a value of a
23 property of this sort.
24 The only type of property that might be
25 applicable to would be if you had a rental property of,
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1 say, an office or a warehouse property where the value
2 was based on the rental stream and the rent was based
3 strictly or primarily on square footage. Then something
4 like this might come into play. But even then, the way
5 Mr. Simpson does it, he's taking the most valuable
6 aspect of the overall property, which is the land, and
7 not assigning it any separate value but he's
8 incorporating that into his per-square-foot dollar
9 value.
10 But then he's saying, if I have another
11 800 square feet I'm going to use that same
12 dollars-per-square-foot value even though he's putting
13 it on 800 square feet of land that he's already used to
14 come up with the dollars in the first place.
15 So he's double-dipping or bootstrapping or
16 however you want to characterize it. It's not a valid
17 computation or a valid methodology for computing value.
18 Q. And so in terms of dollars or dollars per
19 square foot, what were you looking at that inspired you
20 to come up with this opinion?
21 A. Mr. Simpson's own testimony.
22 Q. Where I think he testified this should be worth
23 something, in the range of 7- or $800 per square foot,
24 something of that sort?
25 A. As I recall, he actually made a calculation
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1 where he said, okay, I have approximately 5,000 or a
2 little over 5,000 square feet of structure, I have
3 $3.4 million, I think he actually made that calculation
4 somewhere, it was either in his deposition or in, maybe
5 it was in some emails.
6 Q. Was there anything of that nature that you saw
7 in an email from Mr. Simpson's agent, the buyer's agent,
8 Doug Rea?
9 A. I think -- my recollection is that in response
10 to some questions by Mr. Simpson, where Mr. Simpson more
11 or less requested Mr. Rea to look at comps on a
12 square-foot basis, Mr. Rea made that comparison, in
13 order to demonstrate to Mr. Simpson that even under
14 Mr. Simpson's -- even under that way of looking at the
15 property proposed by Mr. Simpson, the Blanchard house
16 was still a good value. That's my recollection.
17 Q. Now, have we talked about all of the opinions
18 and conclusions you've formulated?
19 A. Yes. And the only other area which was one
20 that's always there is I would expect that if there are
21 opinions offered by other experts in the case on any of
22 the same subject areas that are within my expertise,
23 that I might be asked to comment on to rebut those.
24 Q. Okay.
25 A. But obviously I don't have that at the present
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1 time.
2 Q. And other than that, do you plan on putting
3 together any report or doing any further work?
4 A. I do not.
5 Q. I know we went through this briefly at the
6 beginning, but can I look at what you've brought with
7 you and just list what you have for the record?
8 A. Sure. I think I pretty much have everything,
9 but you're welcome to do it if you like.
10 Q. There's a transmittal correspondence and notice
11 of deposition. Mediation briefs. Three briefs on
12 behalf of Douglas Rea, Ralph Simpson and Lou Rae Kagel.
13 Condensed copy of Lou Rae Kagel's deposition. Copy of
14 the deposition of Ralph Simpson. Copy of the deposition
15 of Ryan Simpson. Copy of the deposition of Tomasina
16 Simpson. Copy of the deposition of James Stroupe, who
17 was the architect.
18 Were there any portions of the architect's
19 deposition that factored into any of your opinions? We
20 really didn't talk about anything he did or didn't do.
21 A. I guess -- it would be reflected in my opinions
22 maybe only to the extent that it solidified my belief in
23 my observation that the seller had some degree of
24 sophistication and was familiar with the kinds of issues
25 that were the subject of the statements and
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1 representations that she made to her agent who then
2 passed them on to the Simpsons.
3 Q. Is it generally your opinion that basically
4 what Lynn O'Brien communicated to Lou Rae Kagel about
5 the property, anything that was contained in the
6 brochures that were put together, that Lou Rae Kagel was
7 entitled to issue and make up those brochures based on
8 whatever Lynn told her, in this case?
9 A. In this case, yes. In this case, I'm not aware
10 of anything that was put in those brochures that was an
11 exception to that. Hypothetically, you could come up
12 with something, but I'm not aware of anything in this
13 case.
14 Q. And we have Exhibits 1 through 36, exhibits to
15 the deposition of Ralph Simpson. There's more
16 transmittal correspondence dealing with the pleadings
17 and copies of depositions, and we have exhibits to
18 Lou Rae Kagel's deposition, 37 through 105. Copy of the
19 complaint. Copy of the answer by Valley of California.
20 Copy of the answer by Lou Rae Kagel. Copy of the
21 cross-complaint by Lou Rae Kagel. Copy of the answer by
22 Lynn O'Brien. Cross-complaint by Lynn O'Brien. Answer
23 to the cross-complaint by Lou Rae Kagel. Answer to the
24 complaint by Doug Rea. And the dismissal as to certain
25 cause of action against Doug Rea and as to certain
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1 causes of action against Lou Rae Kagel.
2 I have a copy of the deposition of Doug Rea,
3 exhibits to the deposition of Doug Rea, which are 140
4 through 159. Transmittal correspondence, and the
5 deposition, a condensed copy of the deposition of Lynn
6 O'Brien and the exhibits to her deposition.
7 Other than the record of your notes or record
8 of your time, billing, there's nothing else involved in
9 this case back at your office or anywhere else?
10 A. Well, certainly not in my office. Anywhere
11 else, you might have to ask these gentlemen.
12 Q. No, that you've reviewed and relied upon?
13 A. No, there's not.
14 MR. MINOLETTI: Okay. I think that's all I
15 have.
16 (3:32 p.m.)
17
18
19
20 ____________________________
21 RANDALL I. BARKAN
22
23 ____________________________
24 Date
25
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1 I do hereby certify that the witness in the
2 foregoing deposition was by me duly sworn to testify the
3 truth, the whole truth and nothing but the truth in the
4 within-entitled cause; that said deposition was taken at
5 the time and place therein stated; that the testimony of
6 the said witness was reported by me and was transcribed
7 under my direction into typewriting; that the foregoing
8 is a full, complete and true record of said testimony;
9 and that the witness was given an opportunity to read
10 and correct said deposition and to subscribe the same.
11 I further certify that I am not of counsel or
12 attorney for either or any of the parties in the
13 foregoing deposition and caption named, or in any way
14 interested in the outcome of the cause named in said
15 action.
16 Should the signature of the witness not be
17 affixed to the deposition, the signature has been waived
18 by stipulation; or the deposition was not signed for the
19 following reason:
20 _______________________________________________________.
21 IN WITNESS WHEREOF, I hereunto certified the
22 foregoing transcript by authority of the Code of Civil
23 Procedure, Section 2093(b).
24 Date:_______________________ __________________________
JOANNE HAAG
25 CSR NO. 4716
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|