|
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
UNLIMITED JURISDICTION
2 IN AND FOR THE COUNTY OF SANTA CLARA
---oOo---
3
4 RALPH SIMPSON,
5 Plaintiff,
6 vs. Case No. 1-05-CV-053398
7 LOU RAE KAGEL, LYNN O'BRIEN,
JAMES O'BRIEN, STONEHENGE
8 PROPERTIES, INC., VALLEY OF
CALIFORNIA, INC., dba COLDWELL
9 BANKER, DOUGLAS REA and DOES
ONE through TWENTY, inclusive,
10
Defendants.
11
____________________________/
12
13
14
15
DEPOSITION OF DOUGLAS REA
16 Tuesday, October 3, 2006
17
18
19 MADELEINE M. FREDA, INC.
CERTIFIED SHORTHAND REPORTERS
20
21
22 Reported by
DAVID J. CURTIN 2000 Broadway
23 CSR NO. 1144 Redwood City, CA 94063
Telephone (650) 365-6152
24 FAX (650) 620-9405
Our File No.
25
1
Madeleine M. Freda, Inc.
(650) 365-6152
1 APPEARANCES
2
3 PLAINTIFF: LAW OFFICES OF GREENE, CHAUVEL,
DESCALSO & MINOLETTI
4 951 MARINER'S ISLAND BOULEVARD,
SUITE 630,
5 SAN MATEO, CA 94404
BY: PAUL G. MINOLETTI, ESQ.
6
7
DEFENDANT DOUGLAS
8 REA: LAW OFFICES OF EDWARD L. BLUM
201 19TH STREET, SUITE 200
9 OAKLAND, CA 94612
BY: TED W. BLOYD, ESQ.
10
DEFENDANT LOU LAW OFFICES OF GAGEN, MCCOY, MCMAHON &
11 RAE KAGEL: ARMSTRONG
279 FRONT STREET
12 DANVILLE, CA 94526
BY: CHARLES A. KOSS, ESQ.
13
14
15 BE IT REMEMBERED that, pursuant to Notice of Taking
16 Deposition, and on Tuesday, October 3, 2006, commencing at
17 the hour of 1:40 p.m., at the LAW OFFICES OF GREENE,
18 CHAUVEL, DESCALSO & MINOLETTI, 951 Mariner's Island
19 Boulevard, Suite 630, San Mateo, CA 94404, before DAVID J.
20 CURTIN, CSR 1144, there personally appeared
21 DOUGLAS REA,
22 who was produced as a witness under the provisions
23 of Section 776 of the Evidence Code.
24
25
2
Madeleine M. Freda, Inc.
(650) 365-6152
1 INDEX
2
3 Examination by: PAGE
4 MR. MINOLETTI 5
5
6
7 PLAINTIFF'S EXHIBITS
8 140- SALES BROCHURE. 29
9 141- INFOLINK COMPUTER PRINTOUT DATED
10 AUGUST 15, 2001. 31
11 142- 17682 BLANCHARD DRIVE BROCHURE. 34
12 143- LISTING DATA. 35
13 144- E-MAIL AND REPLY PLUS ATTACHMENT. 35
14 145- E-MAIL DATED THU, 30 AUG 2001. 37
15 146- SERIES OF E-MAILS. 38
16 147- LETTER DATED SEPTEMBER 4, 2001. 39
17 148- E-MAIL DATED MON, 10 SEP 2001. 40
18 149- TELEPHONE MESSAGE DATED 09/08. 43
19 150- LETTER DATED SEPTEMBER 9, 2001. 43
20 151- E-MAIL DATED SUNDAY, SEPTEMBER 09,
21 2001 AND REPLY E-MAIL DATED MONDAY,
22 SEPTEMBER 10, 2001. 44
23 152- OFFICE OF DOUG REA FAX TRANSMISSION
24 COVER SHEET. 47
25 153- LETTER DATED SEPTEMBER 16, 2001. 48
3
Madeleine M. Freda, Inc.
(650) 365-6152
1 154- LETTER DATED SEPTEMBER 17, 2001. 49
2 155- HANDWRITTEN NOTE ON THE LETTERHEAD
3 OF FINANCIAL TITLE COMPANY DATED
4 9/17/01. 51
5 156- PRDS REQUEST FOR CONTRACT PERFORMANCE
6 DATED 9/17/01. 52
7 157- E-MAIL DATED SEPTEMBER 19, 2001
8 5:37 P.M. AND E-MAIL DATED SEPTEMBER
9 19, 2001 5:37 PM. 53
10 158- HANDWRITTEN LETTER DATED SEPTEMBERE
11 26, 2001. 53
12 159- LETTER DATED JUNE 9, 2003 WITH
13 ATTACHMENT. 54
14
15
16
17
18
19
20
21
22
23
24
25
4
Madeleine M. Freda, Inc.
(650) 365-6152
1 DOUGLAS REA,
2 being first duly sworn, was examined and testified as
3 follows:
4 EXAMINATION BY MR. MINOLETTI:
5 MR. MINOLETTI: Q. Would you state your name for
6 the record, please?
7 A. Douglas Marshall Rea.
8 Q. We met a few moments ago. My name is Paul
9 Minoletti. I represent Ralph Simpson in this case. State
10 your home address and then your work address.
11 A. Home address is 7251 Sleepy Creek Drive, two
12 words, San Jose, California 95120. Business address is 449
13 North Santa Cruz Avenue, Los Gatos, California 95030.
14 Q. Have you had your deposition taken before?
15 A. Recently in a car wreck situation.
16 Q. Are you a party to that case?
17 A. For loss of consortium, my wife.
18 Q. Where is that case venued?
19 A. San Jose.
20 Q. Any other depositions?
21 A. Never.
22 Q. Have you ever testified in court?
23 A. No, I haven't.
24 Q. Have you ever been involved in any other
25 lawsuits?
5
Madeleine M. Freda, Inc.
(650) 365-6152
1 A. No, I haven't.
2 Q. You understand that you are here to tell the
3 truth and testify just as if you were in court?
4 A. Yes, I do.
5 Q. If you have any problems with understanding
6 anything I ask today, please say so.
7 A. I will.
8 Q. If at any time you need to take a break for
9 whatever reason, you are not feeling well or you want more
10 tea or water, just say so.
11 A. Thank you.
12 Q. Everything we say today, my questions, your
13 answers, anything else that is said in the room will be
14 taken down by the court reporter. He will create a
15 transcript of these proceedings, you will have an
16 opportunity to review and if you want make changes to your
17 testimony. However, if you change your testimony in some
18 substantive way, for example changing an answer from yes
19 to a no, myself or any other attorneys involved in the
20 case may bring that into question later at trial if you
21 testify differently. Do you understand?
22 A. I do.
23 Q. If you don't know the answer to a question or you
24 can't remember, just tell me. That is okay.
25 A. Okay.
6
Madeleine M. Freda, Inc.
(650) 365-6152
1 Q. Just because I ask a question does not mean you
2 have to come up with an answer.
3 A. Understood.
4 Q. You are going to be held to whatever answers you
5 give today.
6 A. Understand.
7 Q. How long have you been involved in real estate?
8 A. Coming up on 14 years, licensed in 1993.
9 Q. What licenses do you hold with respect to real
10 estate?
11 A. Agent's license.
12 Q. Has that license been held continuously since
13 1993?
14 A. Yes, sir.
15 Q. Have you ever had any suspensions or disciplinary
16 action against your agent's license?
17 A. No, sir.
18 Q. And can you give me a brief summary of your
19 educational background starting with high school?
20 A. I dropped out of high school in the tenth grade,
21 continued to get my GED, took a couple years of junior
22 college, then enrolled in real estate courses once I moved
23 to California and obtained my license, started as
24 assistant.
25 Q. Where did you take your junior college courses?
7
Madeleine M. Freda, Inc.
(650) 365-6152
1 A. Houston Community College, Houston, Texas.
2 Q. Any particular courses you took?
3 A. My dream was to be an English professor at some
4 point.
5 Q. Have you had any occasion to do college level
6 courses here in California related to real estate?
7 A. Does that include continuing education courses,
8 initial courses that were required to obtain my license?
9 Q. No, beyond that. I understand you have to take
10 courses to sit for the license.
11 A. No, sir, not beyond that.
12 Q. You kept up all of your continuing education?
13 A. Yes, sir.
14 Q. Starting from high school can you give me a brief
15 summary of your employment history?
16 A. I worked mostly in the labor field, construction,
17 residential, roofing, framing, painting. I relocated to
18 Alaska when I was 22. I continued working different
19 construction jobs but was injured in the field, came to
20 California for a series of surgeries. I decided to get
21 into real estate because that is what the other half of my
22 family does besides construction. That made sense at that
23 time.
24 Q. Have you been in California since 1993?
25 A. Yes, 1993. I can't give you the exact date when
8
Madeleine M. Freda, Inc.
(650) 365-6152
1 I arrived. I believe it was possibly January if I remember
2 right.
3 Q. How long have you been with Coldwell Banker?
4 A. I have been with Coldwell Banker five or six
5 years I believe. I was with Remax before.
6 Q. I take it in 1993 when you obtained your real
7 estate license you went to work for Remax?
8 A. I actually worked for another Coldwell Banker
9 sales team as assistant located in the Milpitas area.
10 After that I spent a very brief period with Century 21,
11 then to Remax, then to Coldwell Banker, been with Coldwell
12 Banker since.
13 Q. You mentioned the Milpitas area. Was that the
14 Remax?
15 A. That was the first sales team I worked with,
16 Coldwell Banker, real estate team, broker was Jack Dent,
17 D-e-n-t.
18 Q. You did that for how long?
19 A. Nearly four years.
20 Q. From there you went to Remax?
21 A. I went -- from there I went to Century 21 for
22 approximately six to eight months.
23 Q. Who was your broker and where was that located?
24 A. That location was Almaden Expressway near
25 Foxworthy. I don't recall that broker. Can't recall.
9
Madeleine M. Freda, Inc.
(650) 365-6152
1 Q. Then you went to Remax?
2 A. Remax. The brokerage located at Almaden
3 Expressway and Blossom Hill, the brokers were Chuck and
4 Janet Wheeler.
5 Q. After Remax you returned to Coldwell Banker where
6 you are now?
7 A. Yes. Actually it was Coldwell located at Almaden
8 Expressway and Sanchez, they closed that building down, I
9 was transferred to the Willow Glen office very briefly,
10 unhappy with it, so transferred to the Los Gatos office.
11 Q. How long were you at the Almaden Coldwell Banker?
12 A. At the Almaden Coldwell Banker between one and a
13 half to two years.
14 Q. Who was your broker or supervisor there?
15 A. Diane -- I can't unfortunately remember her last
16 name right now. She was let go shortly before the
17 brokerage was closed.
18 Q. From there you went to Willow Glen for how long?
19 A. It was about four weeks probably. I was
20 unsatisfied with Willow Glen.
21 Q. Who was your broker or supervisor there?
22 A. I don't recall.
23 Q. From Willow Glen you went to Los Gatos?
24 A. Los Gatos.
25 Q. Who has been your broker supervisor in Los Gatos?
10
Madeleine M. Freda, Inc.
(650) 365-6152
1 A. John Carmen was the initial broker for a couple
2 of years I believe, then he left and Ryan Iwanaga became
3 the broker and then he left recently, and Karen Trolan is
4 now the broker. Ryan left maybe eight months ago or less.
5 There might have been one in between John Carmen and Ryan
6 a brief time and I can't recall.
7 Q. Other than your real estate license do you hold
8 any other licenses other than a driver's license?
9 A. I do not. Motorcycle license, but that falls
10 under driver's license.
11 Q. Have you ever had a contractor's license?
12 A. No, I have not.
13 Q. Have you ever done any work as a real estate
14 appraiser?
15 A. No, I have not.
16 Q. Did you bring with you any documents today?
17 A. I did not.
18 MR. BLOYD: For the record, Paul, I believe we
19 spoke when this was first noticed and I let you know we
20 had produced the entire transaction file in this matter
21 which is basically what the document request accomplished.
22 If we have it, you have it.
23 MR. MINOLETTI: Q. Have you reviewed any
24 documents in preparation for your deposition?
25 A. For the deposition that was scheduled in August I
11
Madeleine M. Freda, Inc.
(650) 365-6152
1 believe I reviewed my documentation, but my workload has
2 been too hard lately, didn't have a chance before coming
3 today.
4 Q. What did you review back in August?
5 A. I scanned through the file, not very detailed.
6 Q. Other than the file that you mentioned do you
7 have any other calendars, notes, computer files, anything
8 like that that you have kept separately outside from the
9 Coldwell Banker file?
10 A. Several e-mails a number of months back which I
11 immediately forwarded to Ted. Otherwise, no, everything is
12 in the file.
13 MR. MINOLETTI: Ted, I take it those were
14 produced?
15 MR. BLOYD: Everything we have was produced.
16 MR. MINOLETTI: Q. Other than speaking with
17 attorneys have you had any discussions with anyone about
18 preparing for your deposition?
19 A. I spoke with Ryan Iwanaga before he left, before
20 he was aware he was leaving, because he was involved in
21 some of the conversations between Lou Rae and myself
22 during the transaction.
23 Q. What discussions -- what was the substance of the
24 discussions you had with Ryan Iwanaga?
25 A. I honestly don't recall. I think just asking what
12
Madeleine M. Freda, Inc.
(650) 365-6152
1 a deposition was like, if he had ever been with one
2 because I hadn't.
3 Q. Anything else you can recall with your
4 discussions with Ryan?
5 A. No.
6 Q. Did you --
7 A. Now, you asked anything. Lou Rae Kagel
8 approximately a couple of days -- first time in years, and
9 asked if I had given my deposition yet, and I said no and
10 walked away. That is the only time I have spoken with her
11 since.
12 Q. Since the sale of this house?
13 A. Since the close of escrow of the house.
14 Q. Have you been provided with or read any of the
15 depositions of anyone else in this case?
16 A. No, I haven't.
17 Q. Have you been involved in any other real estate
18 transactions where Lou Rae Kagel has been involved?
19 A. No, sir.
20 Q. Have you ever been involved with any other real
21 estate transactions where Lynn O'Brien or Stonehenge
22 Properties has been involved?
23 A. No, sir, not to my knowledge.
24 Q. Do you recall when you first met Ralph Simpson?
25 A. I met his wife first.
13
Madeleine M. Freda, Inc.
(650) 365-6152
1 Q. When was that?
2 A. Very shortly after I joined the Coldwell Banker
3 branch, I was on floor, and she either called or walked
4 in. I can't recall exactly, that is how I met her. I was
5 a floor agent at the time.
6 Q. What does floor agent mean?
7 A. The agent that is designated with speaking with
8 anybody inquiring on properties for a particular number of
9 hours during that day.
10 Q. So this was sort of for lack of a better term a
11 cold call from Mrs. Simpson?
12 A. Yes, sir.
13 Q. What happened in that first discussion?
14 A. She explained to me they were relocating here
15 from Europe, had been placed with agents that she didn't
16 feel was doing them justice, and they needed to find a
17 home and would I assist them.
18 Q. Did she tell you who that agent was she wasn't
19 comfortable with?
20 A. She did not, and I didn't ask.
21 Q. What happened next? What did you do from there?
22 A. I don't recall if I found a property or if she
23 already had a property. I think she already had one. I
24 showed it to her. She seemed to like the manner in which
25 I worked, asked me to provide her with more properties. I
14
Madeleine M. Freda, Inc.
(650) 365-6152
1 believe I provided the majority of the properties that I
2 have shown them because I did keep the MLS printouts.
3 Q. Do you remember overall how many properties you
4 showed to the Simpsons?
5 A. I do not. I would have to view my notes in the
6 file.
7 Q. That would have been in the file?
8 A. Yeah.
9 Q. Did Mrs. Simpson give you any parameters or
10 desires as to what she wanted in a home?
11 A. Mostly by price range.
12 Q. Do you recall the price range?
13 A. Under four million to the best of my memory.
14 Q. Do you recall any features that Mrs. Simpson
15 desired in a home other than price?
16 A. Newer, not old properties, or if they were older
17 they should have been remodeled and updated.
18 Q. Anything else about what Mrs. Simpson was looking
19 for in a property?
20 A. Not that I can recall.
21 Q. Did she ever tell you that one of the things she
22 desired was a swimming pool?
23 A. Not to my knowledge, not that I recall.
24 Q. Did she ever tell you one of the things that she
25 wanted was a pool or guesthouse?
15
Madeleine M. Freda, Inc.
(650) 365-6152
1 A. No. Can I amend one of my answers?
2 Q. Sure.
3 A. It did need to be Los Gatos or Saratoga, adamant
4 about that.
5 Q. I appreciate at any time you recall something
6 like that if you would just let me know.
7 A. I will.
8 Q. Okay. Did Mr. and Mrs. Simpson tell you anything
9 about the size of the property that they wanted?
10 A. I don't recall. Mostly by price range and provide
11 them with every single property from about -- I think
12 might have been under three, up to four million and
13 allowed them to decide what they wanted to view, and often
14 they would call me and request information on particular
15 properties that they may have run across.
16 Q. After this first discussion with Mrs. Simpson
17 what was your next meeting or discussion with either Mr.
18 or Mrs. Simpson that you can recall?
19 A. Mostly with Mrs. Simpson. I believe I showed her
20 the first home that either I -- I believe she found it. I
21 believe I showed it to her that day, or the following day
22 if I remember correctly, from there I was provided with as
23 much information as possible, she would look at them,
24 relate the information to Ralph and we would set up a
25 second appointment, view the ones he was interested in.
16
Madeleine M. Freda, Inc.
(650) 365-6152
1 Q. Do you recall what time frame this was in when
2 you first had your discussion with her and looking at
3 these various properties?
4 A. No. I would be guessing.
5 Q. That would be --
6 A. It was daylight. That is as good as --
7 Q. I am not asking for the time of day. I am asking
8 for calendar year and month.
9 A. I apologize. Misunderstood. I don't recall
10 exactly. I would have to review my notes which I did keep
11 based on -- because I kept the properties that I showed
12 her, all are time and date stamped.
13 Q. What was the arrangement if any between you and
14 the Simpsons as to compensation?
15 A. Compensation is stated by the listing agent, it
16 goes with the commission, that is stated on the MLS.
17 There were no discussions on commission with the Simpsons
18 that I recall.
19 Q. Could it have been different for different
20 properties?
21 A. No, sir.
22 Q. What is the standard?
23 A. Standard commission in the area is three percent,
24 but since commission negotiated between seller and client,
25 there were two and a half percent and two percent
17
Madeleine M. Freda, Inc.
(650) 365-6152
1 properties, that information should be on the MLS
2 printouts.
3 Q. The property that the Simpsons ultimately
4 purchased, do you recall what the rate was on that?
5 A. I believe it was two and a half percent.
6 Q. When did you first meet Mr. Simpson?
7 A. I don't recall. It would have been the first
8 home he was interested in viewing himself. But I can't
9 recall that.
10 Q. Would that date and identity of the property be
11 in your notes or in the Coldwell Banker file?
12 A. I don't believe so.
13 Q. Was the situation then basically you would show
14 Mrs. Simpson a property, if she thought that Mr. Simpson
15 would be interested she would ask you then to have a
16 second showing?
17 A. Ralph would call me. Most of the contact
18 initially was with Mrs. Simpson.
19 Q. Did you get along well with Mrs. Simpson?
20 A. Yes.
21 Q. Did you get along well with Mr. Simpson?
22 A. Yes.
23 Q. Did you ever meet any of their children?
24 A. The one son that I knew of, I believe he was
25 doing his junior or senior year at Los Gatos but I do not
18
Madeleine M. Freda, Inc.
(650) 365-6152
1 recall his name.
2 Q. Do you remember the occasion or occasions where
3 you met their son?
4 A. It was I believe after they had chosen the
5 Blanchard house and we were in escrow. Possibly -- no more
6 than two or three times.
7 Q. Did you have any discussions with the son?
8 A. Briefly, about sports, what his hobbies were.
9 Q. Did you ever go with the Simpsons -- I will start
10 over. Did you ever visit the Blanchard property during an
11 open house?
12 A. I don't believe so. I believe the appointments I
13 was present with the Simpsons were private showings. I
14 don't believe I would have kept that within my notes.
15 Q. Did you ever visit the Blanchard property with
16 the Simpsons on any occasion where Lou Rae Kagel was
17 there?
18 A. Yes, unknowingly.
19 Q. What do you mean by unknowingly?
20 A. She showed up.
21 Q. Do you remember any specific occasion or
22 occasions where Lou Rae Kagel showed up?
23 A. Just one specific one.
24 Q. What do you recall about that?
25 A. We were inspecting the issue of the guesthouse
19
Madeleine M. Freda, Inc.
(650) 365-6152
1 not having AC. Ralph was concerned, it was advertised with
2 AC. He expected it to have air conditioning, trying to
3 determine if it had it because we were told it did. Lou
4 Rae showed up and the situation became very volatile.
5 Ralph's son was there at that time as well.
6 Q. Do you recall when this was as far as a date?
7 A. It should have been within a couple of weeks of
8 close of escrow but I cannot recall the exact date. It
9 was a late afternoon or early evening appointment.
10 Q. You mentioned at this meeting to look at the
11 guesthouse for air conditioning things got a little testy?
12 A. Yes.
13 Q. Can you tell me what happened?
14 A. Lou Rae insisted there was air conditioning.
15 When we were showing her there was none, no condenser, she
16 insisted that if he wanted AC it was something he would
17 need to put in himself, and Ralph did not appreciate that
18 answer, and an argument ensued between all four parties,
19 because even the son was being verbal and calling the
20 situation ridiculous, and I tried to just calm things
21 down.
22 Q. Ultimately this air conditioning issue was
23 resolved?
24 A. It was by my brokerage.
25 Q. How was it resolved?
20
Madeleine M. Freda, Inc.
(650) 365-6152
1 A. I believe that I kicked in 300, Lou Rae kicked in
2 300 and possibly Coldwell Banker kicked in a balance. I
3 don't recollect if the amount it cost was six or 1,200,
4 but I remember it was a mutual concession by all parties,
5 that is where Ryan was involved with myself and Lou Rae.
6 Q. Ryan being your broker?
7 A. The broker at the time, Ryan Iwanaga.
8 Q. Any other occasions you recall where you were at
9 the Blanchard property along with Lou Rae Kagel?
10 A. There was a time where I believe the sellers were
11 there providing plans to go over with Ralph. I am not sure
12 if Lou Rae was there or not. Possibly she could have
13 been. So I can't fully recall.
14 Q. The seller was there with plans?
15 A. I believe it was the wife. Ralph had requested
16 that plans be provided, they were left at the granite
17 island in the kitchen. I believe Mrs. O'Brien was there
18 at that time, went over some of the details with Ralph,
19 but I was also walking the property and checking things
20 out myself. So I wasn't present for their conversations.
21 Q. Now, can you tell me when this visit to the
22 Blanchard property occurred in terms of a date?
23 A. Middle of close of escrow before 9/11.
24 Q. Are there any other occasions that you recall
25 being at the Blanchard property with Lou Rae Kagel?
21
Madeleine M. Freda, Inc.
(650) 365-6152
1 A. No, I can't recall.
2 Q. Are there any occasions, any other occasions you
3 recall where Lynn O'Brien was at the Blanchard property
4 when you were there?
5 A. I believe she may have stopped by once when
6 viewing the property. We went there often. But I don't
7 believe there were many conversations at that time.
8 Q. Have you ever met Lynn O'Brien other than perhaps
9 these one or two occasions?
10 A. Not prior and not since.
11 Q. Have you ever had any discussions with Lynn
12 O'Brien directly about anything to do with the Blanchard
13 property?
14 A. I don't believe so.
15 Q. Have you ever met or talked with Lynn O'Brien's
16 husband?
17 A. No. I don't think I met him. I don't recall
18 meeting him. If I was present I wasn't introduced.
19 Q. Have you ever met any of the contractors or
20 subcontractors that did work on the Blanchard property?
21 A. I ran into some of the fellows installing the AC
22 in the guesthouse when I went there to make sure that it
23 was being done, but no formal introductions.
24 Q. You don't know who they were?
25 A. No, I do not. They appeared to be laborers.
22
Madeleine M. Freda, Inc.
(650) 365-6152
1 Q. In terms of a date can you tell me approximately
2 when was the first time that you saw the Blanchard
3 property?
4 A. I would have to refer to the MLS printout when I
5 showed it to them. If it is in here --
6 Q. We will go through those later. If it jogs your
7 memory, we can discuss it then.
8 A. Okay.
9 Q. The first time you went to the Blanchard property
10 would have been with Mrs. Simpson I take it?
11 A. Normally it would have been with Mrs. Simpson. On
12 some of them she already knew that Ralph would want to see
13 it.
14 Q. You wouldn't have made a visit to the Blanchard
15 property without either Mr. or Mrs. Simpson on the first
16 occasion that you went out there?
17 A. I would have done a drive by so that I knew where
18 the property was, but I did not enter the property.
19 Q. Did you ever speak with anyone from the city of
20 Monte Sereno about the Blanchard property?
21 A. I can't recall.
22 Q. Do you recall ever seeing at the Blanchard
23 property a large flip chart on an easel that described
24 some of the features of the property?
25 A. I remember there was much marketing material
23
Madeleine M. Freda, Inc.
(650) 365-6152
1 there but I don't recall an easel style setup.
2 Q. All right. Let's look at some of these documents
3 I have here. The first is a marketing brochure or
4 advertisement for the Blanchard home previously marked as
5 Exhibit 29 to the deposition of Ralph Simpson. Have you
6 seen this before?
7 A. Yes, I have.
8 Q. As far as you know do you know who created the
9 document?
10 A. I do not. Actually it states at the bottom of
11 the flyer, Design and Color by 1-800-ProColor.
12 Q. Do you know who 1-800-ProColor is?
13 A. No, I do not.
14 Q. In terms of your relationship with Coldwell
15 Banker do you list properties for sale as well as show
16 properties?
17 A. Yes, I do.
18 Q. Are you required to use any company in particular
19 to print or create your brochures for you?
20 A. I make my own. I am allowed to do -- we are
21 allowed to do as we see fit.
22 Q. Do you recall when you first saw a copy of this
23 brochure?
24 A. When I visited the property for the first time
25 and entered it with Ralph or with Mrs. Simpson. Again I
24
Madeleine M. Freda, Inc.
(650) 365-6152
1 don't recall if one or both were there the first time.
2 Q. I may have asked this already. As far as a date
3 and time do you remember approximately the first time when
4 you went to the house?
5 A. I would have to review the package for that
6 particular day showing -- it was not the only property on
7 the list, and I believe it is date and time stamped when I
8 printed out the information.
9 Q. What would you call that document?
10 A. I would call that my route for the day.
11 Q. That is something that should be in this file?
12 A. Absolutely. You would recognize it by having a
13 combination of house information and maps, some maps
14 stapled behind. It was a photo report, so there was a
15 picture, if there was a picture available.
16 MR. MINOLETTI: I don't know as I have seen that,
17 Ted.
18 MR. BLOYD: I recall seeing that, there were maps,
19 very basic line maps with numbered locations, I think
20 addresses, section of Los Gatos, Monte Sereno, streets
21 marked, two, three, four, five houses, some MLS
22 information attached. I have seen them outside of sitting
23 in my office. I have seen them at one of the depositions
24 as I recall.
25 THE WITNESS: They are not here. There were at
25
Madeleine M. Freda, Inc.
(650) 365-6152
1 least two, possibly three, maybe four showing appointments
2 that we went on, three to ten properties at the time.
3 MR. MINOLETTI: Q. Let's get back to the
4 brochure. I want to ask you a couple of questions. Do
5 you know what fibre optics are?
6 A. I understand that they have something to do with
7 data transmission but that is it.
8 Q. Would you know by looking at for lack of a better
9 term an outlet on the wall whether that was fibre optics
10 or any other type of system for communications?
11 A. No, sir.
12 Q. At some point did you learn that the Simpsons had
13 wanted to install a pool at the property?
14 A. I don't recall talking about a pool.
15 Q. At some point did you understand that the
16 Simpsons wanted to install or construct another building
17 on the property?
18 A. No. I don't recall that. It was mentioned that a
19 separate building on the property was where their son was
20 going to live.
21 Q. At some point did Mr. Simpson complain to you
22 about the representations as to the square footage of the
23 home?
24 A. No, I don't recall that he did during actually
25 close of escrow, I mean during the actual escrow.
26
Madeleine M. Freda, Inc.
(650) 365-6152
1 Q. Did he complain somewhere after?
2 A. I heard secondhand that he had but I did not have
3 communication with him after close of escrow.
4 Q. Your recollection is that the only time he
5 complained about it would have been after close of escrow?
6 A. That is my understanding from secondhand
7 information. I believe it was Ryan that told me.
8 Q. Did Mr. Simpson before the close of escrow voice
9 any complaints that you recall other than what we have
10 talked about, the air conditioning, about what was
11 represented to him as being a feature or a part of the
12 Blanchard property?
13 A. I don't remember complaints regarding -- just
14 minor laundry list of repairs due by the seller or
15 building features he didn't feel were quite complete, and
16 I believe maybe there's something to that effect in the
17 file.
18 Q. When you tell me that that makes me feel that
19 those are construction punch list type of items.
20 A. Yes.
21 Q. For example did Mr. Simpson ever complain to you
22 that he felt that the size in terms of acreage or
23 percentage of an acre that the property was advertised
24 that was misrepresented to him?
25 A. I was requested to provide information from the
27
Madeleine M. Freda, Inc.
(650) 365-6152
1 county showing the size of the lot, I provided him with
2 the county Metroscan records.
3 Q. To your knowledge are those Metroscan records
4 accurate?
5 A. As I understand they are, but I can't confirm.
6 Q. Did Mr. Simpson ever voice any complaints to you
7 about Lou Rae Kagel?
8 A. Yes.
9 Q. What did he complain about?
10 A. He was frustrated with the way escrow went
11 specifically after 9/11 occurred, and with regards to the
12 handling of the air conditioning issue.
13 Q. Have we pretty much talked about the air
14 conditioning issue?
15 A. Yes.
16 Q. What is it about the handling of the financing
17 after 9/11 that Mr. Simpson complained about?
18 A. I know Mr. Simpson landed from a business trip to
19 Hawaii 45 minutes before the first plane hit. After he
20 went to the Cisco War Room, information he relayed to me.
21 I had little or no contact with him for nearly two weeks
22 and we were issued performance letters and it seemed like
23 there was refusal to understand there was nothing we could
24 do, requests for extensions were denied. The situation
25 became aggressive.
28
Madeleine M. Freda, Inc.
(650) 365-6152
1 Q. When you say requested extensions you requested
2 extensions of the sellers?
3 A. Yes.
4 Q. These were denied?
5 A. Yes. Because according to the lender even if
6 Ralph was available at the time he couldn't get documents
7 across country or do much of anything, his hands were
8 tied. So there was no way he could close escrow on time. I
9 believe there's communication within the file from Lou Rae
10 that would substantiate that.
11 MR. MINOLETTI: The next document I believe is
12 actually a two-page document, also a sales brochure. I
13 should have this marked as next.
14 (Plaintiff's Exhibit 140 marked for
15 identification.)
16 MR. MINOLETTI: Let's take a couple of minutes.
17 (Brief recess.)
18 MR. MINOLETTI: Q. Do you recognize that
19 brochure?
20 A. It does look familiar.
21 Q. Do you recall the first time that you had
22 occasion to see that?
23 A. Upon entering the property.
24 Q. When you saw it upon entering the property, were
25 these brochures, the first one we discussed as well as
29
Madeleine M. Freda, Inc.
(650) 365-6152
1 this one, there and available at the property?
2 A. Yes, they were.
3 Q. Were they available, did you have to actually go
4 inside the property?
5 A. I believe they had a flyer on the sign post, I
6 don't know if I took it. Most likely it would have been
7 black and white. I prefer color. I would have to review my
8 file.
9 Q. Looking at the second page of this brochure, it
10 says "City says space in back sufficient for additional
11 800-square foot structure." Do you recall seeing that?
12 A. Yes.
13 Q. Did it ever come up in conversation with either
14 Mr. or Mrs. Simpson that there was an issue with this
15 property?
16 A. No, not that I recall.
17 Q. Did Mr. Simpson ever ask you to do anything to
18 verify that an 800-square foot structure was in fact
19 already approved by the city?
20 A. No, not that I recall.
21 Q. Do you know if in fact the city had approved this
22 property for an additional 800-square foot structure?
23 A. No, I do not.
24 Q. Up until the present time you are not aware of
25 any issue that Mr. Simpson has regarding the ability to
30
Madeleine M. Freda, Inc.
(650) 365-6152
1 construct an additional 800-square foot structure on the
2 Blanchard property?
3 A. To the present time?
4 Q. Yes.
5 A. Could you expand?
6 Q. Sure, up until now, up until our deposition here
7 today did you know that Mr. Simpson took issue with the
8 representation that there was an additional 800-square
9 foot structure already approved for the Blanchard
10 property?
11 A. No.
12 MR. MINOLETTI: We will mark next as Exhibit 141
13 an InfoLink computer printout description of the Blanchard
14 property.
15 (Plaintiff's Exhibit 141 marked for
16 identification.)
17 THE WITNESS: This would be referred to as the
18 full data printout, this particular software program for
19 accessing the MLS as opposed to a photo printout or a map
20 printout.
21 MR. MINOLETTI: Q. Is this something that would
22 have been in your file?
23 A. Yes. I believe I provided it maybe.
24 Q. When you say you may have provided it, would that
25 be to the Simpsons?
31
Madeleine M. Freda, Inc.
(650) 365-6152
1 A. To the Simpsons and to you guys. I am looking at
2 the time and date stamp.
3 Q. It says August 15, 2001, top left-hand corner?
4 A. Yeah.
5 Q. That is when this document would have been
6 printed?
7 A. Yes, sir.
8 Q. Do you know where the descriptive information
9 comes from that is contained on this printout?
10 A. To a certain extent.
11 Q. What is custom and practice in your
12 understanding?
13 A. Specify.
14 Q. Sure. Do you ever fill these out in the course of
15 your real estate practice?
16 A. Yes. Some information is automatically provided
17 from the MLS, from county records. If the square footage
18 is represented by the county, it says C, by a seller, it
19 says S.
20 Q. Where are you pointing?
21 A. Right here. The lot size is provided by the
22 county and it is automatically entered, the agent would
23 enter the -- I believe -- the range, 50 to one acre and
24 28340. I believe I was incorrect. I believe that is part
25 the agent enters. The address comes up when you enter the
32
Madeleine M. Freda, Inc.
(650) 365-6152
1 property based on the parcel number, and school district
2 comes up automatically. I believe the majority of the
3 other information is entered by the office.
4 Q. All right. So in this case adjacent to -- what
5 is SF, square footage, it 5,100, and then after that an S.
6 That means that information is provided by the seller?
7 A. That criteria was overrun and would have been
8 entered by the seller, because most likely the county
9 records would have shown the original structure size.
10 Q. Where there's a heading or title here of
11 Pool/Spa/Sauna, it says NONE, then it says POSS POOL SITE,
12 do you see that?
13 A. I do.
14 Q. What is your understanding of what that entry
15 means?
16 A. That is a criteria that the agent would have
17 filled out on the Class One data form, then the front
18 office would use the Class One data form to enter the
19 property on to the multiple Listing Service and to me and
20 most other agents means possibly a pool could be installed
21 on the property but not guaranteed.
22 Q. Okay. Just so I am clear on this, you are not
23 aware of any issue that Mr. Simpson or Mrs. Simpson had
24 with respect to a representation they could have a pool on
25 the Blanchard property?
33
Madeleine M. Freda, Inc.
(650) 365-6152
1 A. No, I am not aware.
2 Q. Okay.
3 A. Aside from what is in the marketing and MLS
4 materials I viewed.
5 Q. Okay. Now, the marketing materials and MLS
6 materials, the three documents that we have reviewed here
7 in deposition so far, those representations that are made
8 about the swimming pool, the square footage of the home,
9 the size of the lot, were those things that as an agent
10 representing a buyer you take those representations as
11 true?
12 A. I take the representations as possibilities. The
13 criteria that is automatically entered in the system from
14 the county and so forth I take as true.
15 MR. MINOLETTI: Okay. The next Exhibit is 142.
16 It is a nine-page brochure on the Blanchard property.
17 (Plaintiff's Exhibit 142 marked for
18 identification.)
19 MR. MINOLETTI: Q. Do you recall seeing this
20 multiple page brochure before?
21 A. Not as well as the initial two. I actually am not
22 sure if I have this in my file. It just doesn't look as
23 familiar. It is a large --
24 Q. As you sit here today you can't recall if you
25 have seen this before?
34
Madeleine M. Freda, Inc.
(650) 365-6152
1 A. No, I can't.
2 MR. MINOLETTI: Okay. Let's move on. The next
3 document is a one-page listing data on the property for
4 Coldwell Banker previously marked as Exhibit 31 to the
5 deposition of Ralph Simpson.
6 (Plaintiff's Exhibit 143 marked for
7 identification.)
8 MR. MINOLETTI: Q. Do you recognize that?
9 A. No, I don't. It looks like an Internet thing, the
10 top line. I don't believe I have seen this one.
11 Q. Is this something at least the form of which you
12 have seen something similar on other properties?
13 A. Yes. This appears to be a marketing piece that
14 might be available to a prospective buyer on the Internet.
15 Q. But you don't recall seeing this?
16 A. I wouldn't -- I didn't provide this to my recall.
17 MR. MINOLETTI: Off the record a minute.
18 (Discussion off the record.)
19 MR. MINOLETTI: For the record we marked that as
20 Exhibit 143.
21 MR. BLOYD:143?
22 (Plaintiff's Exhibit 144 marked for
23 identification.)
24 MR. MINOLETTI: Q. The next document is two
25 pages, it is an e-mail and a reply on August 19, 2001
35
Madeleine M. Freda, Inc.
(650) 365-6152
1 between you and Ralph Simpson about essentially about
2 price negotiations for this Blanchard property. Correct?
3 A. Not -- the first page is about simply being
4 prepared for making an offer.
5 Q. Okay.
6 A. How important it is to prepare your financial
7 proof. The second page does address price.
8 MR. BLOYD: It appears actually to be four pages.
9 MR. MINOLETTI: There are four pages.
10 Q. This is during the time frame where you had
11 difficulty in communicating with Mr. Simpson after 9/11?
12 A. No.
13 Q. This was August?
14 A. August 19th.
15 Q. Not September. Okay.
16 A. It was very easy to communicate with Mr. Simpson.
17 Q. Before 9/11?
18 A. Yes.
19 Q. Did you recommend to either Mr. or Mrs. Simpson
20 they have any inspections done?
21 A. Yes.
22 Q. What did you recommend?
23 A. Termite or property.
24 Q. Were those done?
25 A. One or the other was done, possibly both. I can't
36
Madeleine M. Freda, Inc.
(650) 365-6152
1 exactly recall, but it was on my insistence as well as Lou
2 Rae's insistence, because he said inspection in the past
3 when properties he bought were a waste of time and money
4 and he preferred to look over the house closer himself.
5 Q. What was marked as Exhibit 33 to the deposition
6 of Ralph Simpson is an e-mail from you to Ralph dated
7 August 30, 2001, and we will mark this as Exhibit 145.
8 (Plaintiff's Exhibit 145 marked for
9 identification.)
10 Do you recognize this?
11 A. It is definitely my writing. We had many, many
12 e-mails between us.
13 Q. What were you addressing here to Mr. Simpson?
14 A. Paragraph one, it was a deposit, have to get the
15 deposit to title within a specific time frame or fall out
16 of contract, also addressing the inspection contingency
17 due that Sunday. We must have had an appointment set up at
18 1 p.m., maybe that day, since I didn't mention the date.
19 Then I addressed the contradiction of square footage on
20 the flyers which both Ralph and I had noticed. I spoke
21 with Ryan as well as some of the more experienced agents
22 in the office since I had not sold new construction
23 previous to this. Then I recommended that if he wasn't
24 happy with the appraisal provided by the seller, we should
25 hire our own because the loan appraisal wouldn't come
37
Madeleine M. Freda, Inc.
(650) 365-6152
1 through until after contingencies were due.
2 Q. Does this e-mail refresh your memory as to any
3 other issues Mr. Simpson might have had with the Blanchard
4 property other than what we discussed?
5 A. No.
6 Q. The next exhibit was previously marked at the
7 deposition of Ralph Simpson as Exhibit 34. It will be
8 Exhibit 146 to this deposition and it is an e-mail or
9 series of e-mails, looks like one from Ralph to you and
10 one from you back to Ralph.
11 (Plaintiff's Exhibit 146 marked for
12 identification.)
13 Earlier you recall there was a construction punch
14 list that Mr. Simpson complained to you about or had
15 requested that something be done about these things. Is
16 this the list that you were referring to?
17 A. Not this page. But this page, Exhibit 35.
18 Q. Okay. Not Exhibit 146. Exhibit 146 is a
19 communication you had with Ralph, correct?
20 A. I don't see where it says 146.
21 MR. BLOYD: Here.
22 THE WITNESS: Oh, I don't have that, Exhibit 34.
23 MR. MINOLETTI: Q. You are looking beyond into
24 the next document.
25 A. I believe that some of these items he had
38
Madeleine M. Freda, Inc.
(650) 365-6152
1 specified in blue, questions following my e-mail. I can't
2 necessarily tell on a copy.
3 Q. Yes.
4 A. I kind of guess though.
5 Q. If you go on to the next document which is marked
6 Exhibit 35 to the deposition of Ralph Simpson that we are
7 going to mark as 147 to this deposition.
8 (Plaintiff's Exhibit 147 marked for
9 identification.)
10 This appears to be an e-mail or letters you wrote
11 to Lou Rae Kagel.
12 A. It was a letter.
13 Q. The handwriting is Lou Rae's?
14 A. Yes. To my knowledge it is.
15 Q. To your knowledge were all these things resolved,
16 all these issues and questions contained in this letter
17 resolved to the satisfaction of Mr. Simpson?
18 A. I believe so but would have to verify and
19 double-check my file closing walk through, buyer's walk
20 through.
21 Q. Is that a form type of document?
22 A. It is a form.
23 Q. Would that be your standard practice, to do a
24 final walk through with the buyer?
25 A. Absolutely. Can I amend something?
39
Madeleine M. Freda, Inc.
(650) 365-6152
1 Q. Sure.
2 A. Looking over my letters I realize that Ralph did
3 decide to do termite inspection, before I said property or
4 termite, maybe both.
5 Q. Okay. Are there any other things about this
6 exhibit that refreshes your recollection about any issues
7 Mr. Simpson had with the Blanchard house?
8 A. No. These were represented as the issues that he
9 was concerned with.
10 Q. The next exhibit is three pages, appears to be a
11 copy of an e-mail from you to Ralph Simpson dated
12 September 10, 2001, was previously marked as Exhibit 36 to
13 the deposition of Robert Simpson and we will mark it
14 Exhibit Number 148.
15 (Plaintiff's Exhibit 148 marked for
16 identification.)
17 Do you recall what prompted you to put these
18 values together?
19 A. Ralph's request. The one he made to -- that the
20 house wasn't overpriced, based on the house that we
21 negotiated.
22 Q. Did Ralph tell you why he wanted you to prove
23 that the house was not overpriced?
24 A. I don't recall him specifically asking that,
25 except that he needed to feel good about the price
40
Madeleine M. Freda, Inc.
(650) 365-6152
1 considering the market at the time.
2 Q. Does this e-mail at all refresh your recollection
3 that Mr. Simpson had an issue with the size of the actual
4 lot?
5 A. No.
6 Q. Does this e-mail refresh your recollection at all
7 that Mr. Simpson had an issue with the representation of
8 the square footage of the Blanchard property?
9 A. Let me finish reading this real quick.
10 Q. Sure.
11 A. I believe it did. Paragraph eight, "I'm using
12 5,000 square feet as the size and not 5,100," basing cost
13 per square foot value.
14 Q. At the time how were you calculating the value
15 based on square foot?
16 A. Exactly as I stated, from comparable properties
17 that had been on the market and sold, a couple that had
18 been listed, getting potential sales prices from the
19 agents, and then ultimately decided to break it down to
20 square foot.
21 Q. You did all the research on the comparable
22 properties yourself?
23 A. I did.
24 Q. And you did all the calculations yourself?
25 A. I did.
41
Madeleine M. Freda, Inc.
(650) 365-6152
1 Q. There's a comment in your letter about dealing
2 with unreasonable listing agents. Did you feel that Lou
3 Rae Kagel was being unreasonable?
4 A. Could you specify where that comment is?
5 Q. It is down around, oh, third to the last sentence
6 I think.
7 A. Yes, based on contradictions as marketing
8 information, the fact that initially rejected our offer, I
9 think as opposed to countering it, I would have to
10 double-check my file to confirm that. If I have agents
11 that won't negotiate I tend to refer to them as
12 unreasonable.
13 Q. Did you ever complain to Mr. and Mrs. Simpson
14 about the way Lou Rae Kagel handled this particular
15 transaction?
16 A. Yes. I believe I did. But I do not recall the
17 exact words or phrases.
18 Q. Did you tell Mr. Simpson that he should report
19 Lou Rae Kagel to the California Department of Real Estate?
20 A. I told him it was an option if he felt it
21 necessary after close of escrow.
22 Q. Did you ever tell Mr. Simpson that he should talk
23 to Ryan Iwanaga about Lou Rae Kagel's handling of this
24 transaction?
25 A. I don't recall that.
42
Madeleine M. Freda, Inc.
(650) 365-6152
1 Q. This next exhibit which will be Exhibit 149 is
2 actually just a telephone message taken from Lou Rae
3 Kagel's documents, and I just want to ask you if you
4 recall leaving her a telephone message about the air
5 conditioning and the lot size and the square footage of
6 the home.
7 (Plaintiff's Exhibit 149 marked for
8 identification.)
9 A. I don't recall specifically but I had a lot of
10 communications with Lou Rae.
11 Q. When you say a lot of communication, was a lot of
12 it done over the telephone?
13 A. I do as much as I can in writing but at times and
14 out in the field it is impossible to do so.
15 Q. The next document appears to be a letter or an
16 e-mail from Lou Rae Kagel to you dated September 9, 2001.
17 It was marked as Exhibit 75 to the deposition of Lou Rae
18 Kagel and we will mark it as Exhibit 150.
19 (Plaintiff's Exhibit 150 marked for
20 identification.)
21 Do you recognize this?
22 A. Yes.
23 Q. Do you recognize this?
24 A. I do.
25 Q. This has to do with primarily the air
43
Madeleine M. Freda, Inc.
(650) 365-6152
1 conditioning issue.
2 A. Yes. It was the beginning of things going bad.
3 Q. When you say things going bad, you mean over the
4 issue of the air conditioner?
5 A. Yes.
6 Q. Or anything else you encompassed?
7 A. No, I don't recall any major concerns or angry
8 feelings prior to this.
9 Q. The next exhibit is an e-mail and a reply e-mail
10 between you and Lou Rae Kagel. This was marked as
11 Exhibit 76 to the deposition of Lou Rae Kagel. It is going
12 to be Exhibit 151 today.
13 (Plaintiff's Exhibit 151 marked for
14 identification.)
15 Do you recall seeing these e-mails?
16 A. Yes. Because I reverted to communication in
17 writing as much as possible at this point.
18 Q. Why was that?
19 A. I felt that there were difficulties on the
20 horizon because a property advertised with AC should come
21 with AC. I summed it up in my answer to her
22 September 10th.
23 Q. September 10th was your response to Lou Rae
24 Kagel?
25 A. Yeah.
44
Madeleine M. Freda, Inc.
(650) 365-6152
1 Q. It was your understanding that the marketing
2 materials indicated that there was air conditioning in the
3 guesthouse?
4 A. Yes. Because the guesthouse was not -- what is
5 the word, set apart or specifically identified as not
6 having AC. The property was advertised as having AC. What
7 I would like to modify from an earlier answer is I think
8 that my portion was $300 contributed, Lou Rae contributed
9 $300, the seller contributed the other half of the $1,200
10 amount for the AC.
11 Q. Did Lou Rae ever respond to this e-mail?
12 A. I believe she did but I would have to review
13 further the information. But I do not recall if it was in
14 writing or by phone. Actually -- never mind. Seems like
15 something is missing from this.
16 Q. It is the prior letter I believe if you look at
17 the prior --
18 A. This Exhibit 75?
19 Q. Yes.
20 A. Then she did respond.
21 Q. Okay.
22 A. That is not right. This letter is prior to
23 September 10 which was my response to her. Seems like
24 something is missing.
25 MR. BLOYD: Can we go off a second?
45
Madeleine M. Freda, Inc.
(650) 365-6152
1 (Discussion off the record.)
2 THE WITNESS: Okay. I am sorry. Then the top
3 line would have been her response, yes.
4 MR. MINOLETTI: Q. In this e-mail response to Lou
5 Rae Kagel dated September 10, 2001 you come right out and
6 say there is misrepresentation. Did Lou Rae ever call you
7 and discuss that with you?
8 A. I do not recall. It appears her response is the
9 top paragraph though, it is not dated or time stamped.
10 Q. That appears to be her written response but
11 doesn't address the misrepresentation issue?
12 A. No. She just offered a compromise.
13 Q. The next document is a fax cover sheet that has
14 got your name at the top. It was marked as Exhibit 77 to
15 the deposition of Lou Rae Kagel. What I have not been
16 able to ascertain is it says that there are four pages
17 including the cover sheet and I have not been able to
18 figure out what was attached to this. Do you have any
19 recollection?
20 A. I imagine it was addressing the issues of delays
21 and inability for my client to respond because he was
22 unable to respond due to his position at Cisco, but I have
23 to review my files to find these forms to determine that.
24 Q. Could I ask you to do that?
25 A. If I could have a piece of paper and write it
46
Madeleine M. Freda, Inc.
(650) 365-6152
1 down I will do that. Will I be able to keep these?
2 Q. Yes.
3 MR. MINOLETTI: That will be Exhibit 152.
4 (Plaintiff's Exhibit 152 marked for
5 identification.)
6 MR. MINOLETTI: Q. It would have been three
7 pages, the fourth page being the cover sheet that we have
8 here.
9 A. Yes.
10 Q. If you find those three pages could you give them
11 to your lawyer? I am sure he in turn will send them to
12 me.
13 MR. BLOYD: I will send them to everybody. I am
14 going to assume if he is able to find three pages with
15 that date, any pages that would be responsive to the
16 request would include this time and date stamp.
17 MR. MINOLETTI: September 14, 2001, 11:02 a.m.
18 MR. BLOYD: This is from Lou Rae's production.
19 MR. MINOLETTI: Exactly.
20 MR. KOSS: I can look in my file too. What is the
21 Bates number on it?
22 MR. BLOYD: Eight.
23 MR. MINOLETTI: Q. The next document is a letter
24 looks like from Lou Rae Kagel directed to you, marked as
25 Exhibit 79 to her deposition and we will mark it as
47
Madeleine M. Freda, Inc.
(650) 365-6152
1 Exhibit 153.
2 (Plaintiff's Exhibit 153 marked for
3 identification.)
4 MR. MINOLETTI: Q. Now, earlier you testified
5 that there were problems with trying to get the escrow
6 closed, pressure, that perhaps Mr. Simpson was going to be
7 out of contract. This is part of that communication?
8 A. Yes. This is her response to my initial informing
9 her of what the lender had informed me, difficulty closing
10 the transaction at that particular time frame in a timely
11 manner. Randy Huffman would have to be spoken to to
12 determine exactly what was going on.
13 Q. Randy huffman is the financial person?
14 A. He is still with Merrimac Financial. He probably
15 remembers this well.
16 Q. Do you recall any issue or problem with the keys
17 for the house or the guesthouse?
18 A. No.
19 Q. Do you recall telling Mr. Simpson he should have
20 all of the locks changed and you would pay for it?
21 A. No. I always tell my clients to change the locks
22 after they move in but I don't offer to pay for them. I
23 paid for part of the air conditioning.
24 Q. Do you know if you paid for changing of any of
25 the locks at the Blanchard property?
48
Madeleine M. Freda, Inc.
(650) 365-6152
1 A. I don't recall. The only other thing I may have
2 covered was the termite inspection because he didn't want
3 to do one and I insisted.
4 Q. Had you paid for the change of any of the locks
5 would that be something in your records?
6 A. No, not that I know of. I would have requested
7 that it come off the top of my commission through the
8 broker as the AC payment did and possibly termite payment,
9 those are paperwork and filings that -- paperwork through
10 the office that I wouldn't have seen, in other words take
11 it off the top of the commission before the commission was
12 determined.
13 Q. Do you have any recollection of a conversation
14 with Mr. Simpson where you said that normally you would do
15 a nice fruit basket or something like that for someone who
16 just bought a house from you but in this case you were
17 going to take care of the locks?
18 A. I don't recall that. I think there was a brief
19 period of time that I did do fruit baskets for people but
20 I am not sure if it was when I was with Coldwell Banker.
21 I believe it was when I was with another sales team.
22 Q. Do you recognize the next letter dated September
23 17, 2001? It was marked as Exhibit 80 to the deposition of
24 Lou Rae Kagel. We will mark it as Exhibit 154.
25 (Plaintiff's Exhibit 154 marked for
49
Madeleine M. Freda, Inc.
(650) 365-6152
1 identification.)
2 Q. Do you recognize that?
3 A. Yes, I do.
4 Q. The financial issues finally got resolved,
5 correct?
6 A. Yes, they did. We closed escrow.
7 Q. Do you remember an issue raised by Mr. Simpson
8 where he was trying to get into the property to move his
9 furnishings and things in and the seller, Lynn O'Brien,
10 was at the property and would not let him in?
11 A. No. Was this after close of escrow?
12 Q. Yes, same day.
13 A. Same day of close of escrow? I was not aware of
14 that that I recall.
15 Q. Did Mr. Simpson ever complain to you that Lynn
16 O'Brien after close of escrow had go to the house and let
17 herself in?
18 A. No. I do not recall specific with Mr. Simpson
19 after close of escrow, though I did call to follow up to
20 see how things were going.
21 Q. Did Mr. Simpson ever complain to you about Lynn
22 O'Brien going into the house and taking the mirror out of
23 the first floor bathroom?
24 A. I don't remember. I was not aware it was
25 removed.
50
Madeleine M. Freda, Inc.
(650) 365-6152
1 (Discussion off the record.)
2 MR. MINOLETTI: The next document is a note dated
3 September 17, 2001, refers to an addendum.
4 A. You mean the previous document.
5 Q. Yeah.
6 A. Okay.
7 Q. These two documents were previously marked
8 Exhibit 81 and 82 to Lou Rae Kagel's deposition. I am
9 just making the assumption this note refers to the request
10 for contract performance.
11 A. Also addresses waiver of inspections and
12 contradiction of sizes. But again without the full
13 document, I think there's another paragraph underneath.
14 MR. MINOLETTI: Okay. So with respect to
15 previous Exhibit 81 we will mark as 155.
16 (Plaintiff's Exhibit 155 marked for
17 identification.)
18 MR. MINOLETTI: Q. This note seems to address
19 more than just the waiver of inspections.
20 Q. It talks about sizes.
21 A. Contradiction in sizes as indicated on the
22 marketing information.
23 Q. Okay. And request for performance just addresses
24 what, close of escrow change?
25 A. Well, I would need to refer back to item 10 of
51
Madeleine M. Freda, Inc.
(650) 365-6152
1 counteroffer 3A to verify that and have to see if there's
2 a further paragraph or if it was just a signature. There
3 might have just been signatures but I can't verify. I do
4 remember this one very well. It was upsetting.
5 MR. MINOLETTI: The request for contract
6 performance dated September 17, 2001 we will mark as
7 Exhibit 156.
8 (Plaintiff's Exhibit 156 marked for
9 identification.)
10 MR. MINOLETTI: Q. With respect to this request
11 for contract performance would you also again -- I would
12 ask that you look at your file and see if you have a more
13 complete document.
14 A. I will.
15 Q. Okay, because I really can't address it further
16 without reviewing the whole thing.
17 MR. MINOLETTI: I need to take a two-minute
18 break.
19 (Discussion off the record.)
20 MR. MINOLETTI: Q. The next item is a couple of
21 e-mails back and forth between you and Mr. Simpson
22 dated September 19, and to Lou Rae --
23 A. There was actually a request, I was having so
24 much difficulty with -- everything we were doing to get
25 this closed that I asked Ralph to explain in his words the
52
Madeleine M. Freda, Inc.
(650) 365-6152
1 validation. So Ralph sent me an e-mail and I forwarded it
2 to Lou Rae.
3 Q. Okay. That is what this says. This was Exhibit
4 86 to Lou Rae Kagel's deposition. It is 157 to this
5 deposition.
6 A. This also reminds me not only was Ralph
7 unavailable but his wife was stuck overseas and her
8 signature was necessary.
9 (Plaintiff's Exhibit 157 marked for
10 identification.)
11 Q. Let's see. What will be Exhibit 158 is a note
12 from Lou Rae Kagel to you dated September 26, 2001, says
13 three pages.
14 A. Yes, there's two pages missing.
15 Q. That is something you can check for me?
16 A. Absolutely.
17 Q. At this point were the sellers threatening to
18 cancel the deal?
19 A. That is what they said in this note. Absolutely.
20 I remember this very well, a very hopeless feeling.
21 MR. MINOLETTI: This will be marked as 158.
22 (Plaintiff's Exhibit 158 marked for
23 identification.)
24 And the last exhibit is three pages which is a
25 letter from Mr. Simpson dated June 9, 2003 to Ryan
53
Madeleine M. Freda, Inc.
(650) 365-6152
1 Iwanaga, and an attachment, which was marked as Exhibit 28
2 to Mr. Simpson's deposition, and it will be 159 today.
3 (Plaintiff's Exhibit 159 marked for
4 identification.)
5 THE WITNESS: I have never seen this letter.
6 MR. MINOLETTI: Q. You have never seen this
7 letter?
8 A. I don't recall ever seeing this letter. Every
9 now and then Ryan would approach me, tell me there was
10 communication going on, but I was not shown any of the
11 communication.
12 Q. I take it Ryan never told you that there was an
13 issue about the pool?
14 A. No, he did.
15 Q. He did. What did he tell you about that?
16 A. I don't recall exactly. I know I asked him what
17 the issue was. He said an issue over the pool that can be
18 installed on the property, whether or not it can versus
19 the size that can be put in. I don't recall anything
20 other than that.
21 Q. Do you recall ever going back to the property
22 after the close of escrow?
23 A. No. With Ralph not responding I didn't want to
24 impose.
25 Q. Okay. What do you mean by Ralph not responding?
54
Madeleine M. Freda, Inc.
(650) 365-6152
1 A. I followed up with calls after as I always do
2 with clients to see how things are doing but without a
3 response, not able to invite myself over or to see how
4 things are going.
5 Q. Did Ryan ever tell you there was an issue about
6 whether or not there would be an additional 800-square
7 foot structure built on the property?
8 A. I believe he did, but I don't recall the exact
9 details of the conversation.
10 Q. In terms of time frame when you learned of these
11 issues do you recall when that occurred?
12 A. Over the course of a couple of years. But I
13 cannot specifically recall dates or even approximate
14 dates.
15 Q. Okay. Would there be anything contained in your
16 file after close of escrow where you would have sent a
17 letter or e-mailed Mr. or Mrs. Simpson about anything to
18 do with the Blanchard property?
19 A. I don't believe so but I would have to review my
20 file to verify that. You guys should have it in your files
21 since I provided you with my entire files, but let me make
22 a note.
23 Q. Have we covered all of the discussions that you
24 recall as you sit here today that you had with Mr. Simpson
25 about the Blanchard property?
55
Madeleine M. Freda, Inc.
(650) 365-6152
1 A. If I could ask one minute just to finish reading
2 this.
3 Q. Sure.
4 A. I was not a party to this delayed closing. Where
5 it states "This delayed closing and the builder needed to
6 repay a loan, so I was requested to pay my down payment
7 $1.25 million directly to the builder before the official
8 closing." I was never made aware of that situation or that
9 request.
10 MR. BLOYD: Frame that.
11 THE WITNESS: Okay. Thank you.
12 MR. MINOLETTI: Q. Does reading through this
13 refresh any of your memory about any other issues or
14 conversations with Mr. Simpson about the Blanchard
15 property?
16 A. It has and I stated the recollections as they
17 have come up.
18 Q. One of them was you have no recollection, no part
19 of this request that he put down $1.25 million cash
20 directly?
21 A. Hum?
22 Q. You have no recollection that there was a request
23 that Mr. Simpson pay $1.25 million directly to the builder
24 before closing as stated in the letter?
25 A. I would have most certainly recalled that if it
56
Madeleine M. Freda, Inc.
(650) 365-6152
1 went through me, because that is completely against every
2 principle I find in a real estate transaction, monies go
3 through escrow period.
4 Q. Have we covered all the discussions you have had
5 with Mr. Simpson about the Blanchard property that you
6 recall as you sit here today?
7 A. Yes.
8 MR. KOSS: I will object as vague and ambiguous,
9 the witness said they went to the Blanchard property
10 often, I don't think we discussed about these often.
11 MR. MINOLETTI: Q. Well, is there anything you
12 recall about these other visits to the Blanchard property
13 as you sit here today?
14 A. No.
15 Q. Are there any other discussions that you recall
16 with Ms. Simpson that we haven't discussed here today?
17 A. No.
18 Q. Subject to those few items that I have asked that
19 you look in your file and provide copies to your attorney,
20 I don't have any other questions today. Thank you.
21 MR. KOSS: No questions.
22 (Whereupon at 4:05 p.m. the deposition was
23 adjourned.)
24 --------------- -----------------
25 DATE WITNESS
57
Madeleine M. Freda, Inc.
(650) 365-6152
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 thereafter
7 transcribed under my direction into typewriting; that
8 the foregoing is a full, complete and true record of
9 said testimony; and that the witness was given an
10 opportunity to read and correct said deposition and to
11 subscribe the same.
12 I further certify that I am not of counsel or
13 attorney for either or any of the parties in the forgoing
14 deposition and caption named, or in any way interested in
15 the outcome of the cause named in said caption.
16 Should the signature of the witness not be
17 affixed to the deposition, the signature has been waived by
18 stipulation; or the deposition was not signed for the
19 following reason:
20 IN WITNESS WHEREOF, I have hereunto certified the
21 foregoing transcript by authority of the Code of
22 Civil Procedure, Section 2093(b).
23 Date:--------------
24 -----------------------
25 CSR NO. 1144
58
Madeleine M. Freda, Inc.
(650) 365-6152
|