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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 MARK T. IVIE
Thursday, January 18, 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
CERTIFIED SHORTHAND REPORTERS
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 Defendants GLASPY & GLASPY, INC.
Lynn and James The Garden Alameda
7 O'Brien and Stone- 1550 The Alameda, Suite 200
henge Properties, San Jose, CA 95126
8 Inc.: BY: PAUL C. GLASPY, ESQ.
9
For the Defendant LAW DIVISION OF NRT INCORPORATED
10 Valley of California WESTERN DIVISION
dba Coldwell Banker: 12657 Alcosta Boulevard, Suite 500
11 San Ramon, CA 94583
BY: STEPHEN W. THOMAS, ESQ.
12
13
14
15
16 BE IT REMEMBERED that, pursuant to Notice and
17 on Thursday, January 18, 2007, commencing at the hour of
18 11:07 a.m., at 951 Mariner's Island Boulevard, Suite
19 630, San Mateo, California, before JOANNE HAAG, CSR No.
20 4716, personally appeared
21
22 MARK T. IVIE
23
24 who was produced as a witness under the provisions of
25 Section 776 of the Evidence Code.
MADELEINE M. FREDA, INC. 2
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1 I N D E X
2 Examination by: Page
3 Mr. Minoletti 4
4
5
6 EXHIBITS
7
8 Plaintiff's Exhibits:
9 1 Cover letter and materials from 8
10 Mr. Glaspy
11 2 Documents obtained from city of 9
12 Monte Sereno
13 3 MetroScan property profile and 9
14 plat maps
15
16
17
18
19
20
21
22
23
24
25
MADELEINE M. FREDA, INC. 3
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1 MARK T. IVIE
2 being duly sworn, was examined and testified as follows:
3 EXAMINATION BY MR. MINOLETTI
4 MR. MINOLETTI:
5 Q. Would you state your full name for the record.
6 A. It's Mark Terrell Ivie.
7 Q. Okay. And have you testified in deposition
8 before?
9 A. Yes, I have.
10 Q. On how many occasions?
11 A. Roughly eight to 10.
12 Q. And have you testified in trial before?
13 A. Yes, I have.
14 Q. On how many occasions?
15 A. Less than five.
16 Q. Do you remember any of the cases that you
17 testified in trial on?
18 A. Specific addresses --
19 Q. Names.
20 A. Names. I do not.
21 Q. Do you remember addresses?
22 A. I did testify recently in a case in Morgan Hill
23 but I do not remember the address.
24 Q. Do you remember the names of the attorneys
25 involved?
MADELEINE M. FREDA, INC. 4
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1 A. Unfortunately I do not.
2 Q. Since you've had your deposition taken a few
3 times, can I skip the normal admonitions?
4 A. Yes.
5 Q. Okay. And what's your business address?
6 A. 1280 Sierra, S-i-e-r-r-a, second word is Mar,
7 M-a-r, and that's Drive, city of San Jose, 95118.
8 Q. Can you give me a brief summary of your
9 employment history.
10 A. I have been appraising real estate since 1983.
11 I have been on my own since 1989. Between 1983 and 1989
12 I worked with my father and my brother.
13 Q. Did you have a company name?
14 A. Yes -- with my father and my brother?
15 Q. Yes.
16 A. It was under Carl Ivie & Sons Appraisal
17 Service.
18 Q. Can you give me a brief history of your
19 educational background.
20 A. I have a four-year undergraduate degree from
21 San Jose State University in international business, and
22 I also have a two-year teaching credential degree in
23 learning handicap.
24 Q. Have you done any teaching?
25 A. Yes, I have.
MADELEINE M. FREDA, INC. 5
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1 Q. And any of your teaching have to do with real
2 estate or real estate appraisal?
3 A. No.
4 Q. In addition to your education, have you had any
5 specialized training in real estate or real estate
6 appraisal?
7 A. Specialized training in what sense?
8 Q. Any courses, things like that?
9 A. Yes. I take, I'm a state certified residential
10 real estate appraiser and I'm required to take
11 continuing education, and I take roughly 14 to 21 hours
12 worth of continuing education per year.
13 Q. And have you kept up with that?
14 A. Yes, I have.
15 Q. And what is the state certification that you've
16 referenced?
17 A. It's a residential license that requires a
18 minimum number of hours, a passage of a standardized
19 test, background, fingerprint, and payment of fees.
20 Q. And what is the minimum number of hours
21 requirement?
22 A. 2,000 hours for my particular license.
23 Q. And what is that 2,000 hours comprised of?
24 A. That's comprised of research and in the field
25 preparing appraisals.
MADELEINE M. FREDA, INC. 6
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1 Q. And how long have you had that license?
2 A. 1996, I'm vague on that because it was the late
3 '90s when the licensing certification came into effect
4 in the state of California.
5 Q. And has your license ever been limited,
6 suspended, revoked, anything like that?
7 A. No.
8 Q. Have you ever worked on any other cases with
9 the O'Briens or Stonehenge Properties?
10 A. No, I have not.
11 Q. Have you ever worked with Mr. Glaspy or anyone
12 from his office before?
13 A. No, I have not.
14 Q. Now, you've brought with you today your file
15 materials on this matter?
16 A. That is correct.
17 Q. Okay. And is this everything that you've
18 relied upon, reviewed, to come to your opinions in this
19 case?
20 A. It is.
21 Q. And can you just go through and tell me what
22 you've brought with you here.
23 A. What I've brought is correspondence from
24 Mr. Glaspy's office, and that correspondence included a
25 purchase contract, some look to be color digital photos
MADELEINE M. FREDA, INC. 7
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1 of the subject property, looks like an exterminator's
2 report concerning the subject property. And an
3 appraisal of the subject property which was dated as of
4 July 30th of '01.
5 Q. And those materials you've just described came
6 from Mr. Glaspy.
7 A. That is correct.
8 Q. Okay.
9 A. And along with that I have done some research
10 with the city of Monte Sereno. I've downloaded some
11 items concerning definitions of a secondary dwelling
12 unit, the regulations, the summary of development
13 standards for the zoning for the subject property, along
14 with some regulations concerning a sports court and then
15 from a separate data source that I use, the ownership
16 information for the property on Blanchard Drive in Monte
17 Sereno, along with two different plat maps, a view of
18 the subject property with the square footage measured
19 out and then a different view of the, looks like the
20 neighborhood around the subject property.
21 MR. MINOLETTI: Let's do this. Let's have the
22 material, the letter, the cover letter and the materials
23 from Mr. Glaspy marked as Exhibit 1.
24 (Whereupon, Plaintiff's Exhibit 1 was
25 marked for identification.)
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1 MR. MINOLETTI: Then Exhibit 2 will be the
2 documentation you obtained or derived from the city of
3 Monte Sereno.
4 (Whereupon, Plaintiff's Exhibit 2 was
5 marked for identification.)
6 MR. MINOLETTI: And then Exhibit 3 will be the
7 MetroScan property profile and the two plat maps.
8 (Whereupon, Plaintiff's Exhibit 3 was
9 marked for identification.)
10 BY MR. MINOLETTI:
11 Q. I take it you were retained around December 19,
12 2006?
13 A. That is correct.
14 Q. Do you have a record or do you keep a record of
15 the time that you've put into the case?
16 A. I do keep a record, I do not have it with me.
17 Q. Do you have an estimate as you sit here today
18 as to how much time you have into the case?
19 A. And we're not speaking about my travel time
20 today?
21 Q. No.
22 A. Not today. I would say roughly an hour so far.
23 Q. And up until today, can you break down what
24 you've done for me in that one hour.
25 A. Roughly 20 minutes was spent on the phone with
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1 the planning and zoning department of Monte Sereno, and
2 the other 40 minutes was reviewing the documents that I
3 downloaded and reviewing the appraisal of the property.
4 Q. Who did you speak with at the city?
5 A. I spoke with a young lady, her name was Andrea,
6 I did not get a last name.
7 Q. And what was the gist of your conversation with
8 Andrea?
9 A. The gist of the conversation was, first off,
10 would I need to come in to the city to get copies of
11 records or find out about certain regulations. She
12 guided me to the Web site, walked me through the
13 process. I had some questions concerning the specific
14 zoning requirements for the subject property, which I
15 showed to be an R1-20 and she and I discussed certain
16 aspects of this development standards for the zoning.
17 Q. You referenced the MetroScan property profile
18 designated the property as R1-20. What does that mean,
19 R1-20?
20 A. It's a single-family residence with a minimum
21 lot size of 20,000 square feet.
22 Q. In your discussions with Andrea at the city of
23 Monte Sereno, did you bring up the prospect of trying to
24 put an additional 800-square-foot structure on this
25 property?
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1 A. Not specifically on this property, but a
2 hypothetical situation.
3 Q. And what was the hypothetical situation?
4 A. Based upon what I had been -- based upon the
5 information in the appraisal, I presented a hypothetical
6 situation if there was already a separate secondary
7 dwelling unit of 900 square feet, would an additional
8 secondary dwelling or accessory structure be allowed
9 under that zoning.
10 Q. And what did you learn?
11 A. I learned that it would not be able to be
12 built.
13 Q. And for what reason?
14 A. Because there was -- it was already considered
15 an accessory structure because it was detached from the
16 main residence.
17 Q. So is it your understanding that a property
18 this size in Monte Sereno could only have one accessory
19 structure?
20 A. That was detached.
21 Q. Did you have any discussion with Andrea or
22 anyone at the city of Monte Sereno about impervious
23 coverage limitations on the property?
24 A. On that particular property, no.
25 Q. Are you aware of any impervious coverage
MADELEINE M. FREDA, INC. 11
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1 limitations on the property?
2 A. I am aware of impervious coverage limitations
3 under that zoning.
4 Q. And what's your understanding of the impervious
5 limitations under that zoning?
6 A. My understanding of the impervious is that it
7 could be 40 -- up to a maximum of 40 percent of the lot
8 size.
9 Q. And did you make any determination as to the
10 impervious coverage on this particular lot?
11 A. No, I did not.
12 Q. Did you visit the property at all?
13 A. No, I have not.
14 Q. The MetroScan property profile that you've
15 pulled, is this something you use regularly in your work
16 as an appraiser?
17 A. Yes.
18 Q. And is the information contained in the
19 MetroScan property profile deemed accurate as far as
20 you're concerned?
21 A. As far as I'm concerned, these are from county
22 records.
23 Q. I understand that your only opinions in this
24 case revolve around the ability or inability to
25 construct an additional 800-square-foot structure on
MADELEINE M. FREDA, INC. 12
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1 this property. Is that true?
2 A. That is true.
3 MR. GLASPY: I've also asked him to opine as to
4 in the hypothetical sense if a structure could be built,
5 what value if any would that add.
6 MR. MINOLETTI: Okay.
7 Q. Let's get to those opinions. What is your
8 opinion with regard to whether or not an additional
9 800-square-foot structure could be built on this
10 property?
11 A. Based upon the current zoning?
12 Q. Yes.
13 A. My opinion is that it could not, that another
14 structure cannot be built.
15 Q. In your materials did you see an advertisement
16 with respect to the subject property?
17 A. No. These are not my -- are you talking --
18 well, this is not my appraisal, this is a copy of an
19 appraisal that was done by someone else.
20 Q. Well, in any of your work on this case, were
21 you told or given any material that indicated this
22 property was advertised as having the ability to build
23 an additional 800-square-foot structure?
24 A. No, I was not.
25 Q. You were also asked to formulate an opinion
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1 with respect to the value of an 800-square-foot
2 structure, if it could be built on this property; is
3 that correct?
4 A. That is correct.
5 Q. Okay. And what is your opinion in that regard?
6 A. My opinion is that it would not add anything to
7 the value of the property. It would be an over
8 improvement based upon the structures that are on the
9 property currently.
10 Q. What do you mean by an over improvement?
11 A. That it would, it would not add any value to
12 the property whatsoever.
13 Q. And what do you base that upon?
14 A. I base that upon what is there, at least what I
15 was shown to be there on the appraisal that was dated
16 back in 2001, and what the market would allow or would
17 adjust for based upon the neighborhood and also the size
18 of the lot.
19 Q. In coming to the opinion that any potential to
20 build an 800-square-foot additional structure there
21 would be an over improvement, did you take into account
22 any cost to build?
23 A. I did take into a cost to build and my opinion
24 is based upon the fact that it would not add anything to
25 the value.
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1 Q. And what formula did you use to factor in the
2 cost to build?
3 A. Well, depending upon what type of structure,
4 for example, if it was a garage, it would be roughly
5 $100 a square foot. If it was, say, a separate office I
6 would say $200 a square foot.
7 Q. And those cost-to-build numbers are based on
8 what, your experience?
9 A. My experience.
10 Q. And is that in today's dollars?
11 A. Yes, it is.
12 Q. Now, assuming an office could be built there at
13 $200 per square foot, the cost to build would be, is it
14 320,000?
15 A. No, we're talking -- it would be 800 square
16 feet, so it would be $160,000.
17 Q. And you're saying that putting $160,000 into
18 building an office at this particular property would
19 yield no return for the homeowner.
20 A. That's correct. It would be a net gain of
21 zero.
22 Q. Would there be a loss in your opinion?
23 A. Depending upon where it was built on the
24 property, the quality of construction, there possibly
25 could be.
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1 Q. At $200 a square foot, what sort of quality of
2 construction are you estimating?
3 A. Average to good quality.
4 Q. If an office structure could have been built
5 there, would there be any loss-of-use value?
6 A. Loss-of-use value of the lot itself?
7 Q. Assuming you could have an office there.
8 MR. GLASPY: I'm just going to object, it's
9 irrelevant, it's not the measure of damages in this type
10 of claim.
11 THE WITNESS: And I need you to clarify what
12 exactly you mean.
13 MR. MINOLETTI:
14 Q. Sure. Assuming that in this particular
15 instance the homeowner wanted and could have built an
16 office on the property shortly after he purchased the
17 property, and now we're X number of years down the line
18 and he cannot have it for that office, in your mind
19 would there be a loss of use to the homeowner?
20 MR. GLASPY: Same objection.
21 THE WITNESS: Do I need to answer that?
22 MR. GLASPY: If you can.
23 MR. MINOLETTI:
24 Q. If you can.
25 A. I have no opinion to that.
MADELEINE M. FREDA, INC. 16
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1 Q. Just so that I can eliminate some additional
2 questioning, you weren't asked to make any opinion about
3 the subject pool at the property, correct?
4 A. That is correct.
5 Q. And you were not asked to give an opinion as to
6 the square footage of the existing structures or the
7 square footage of the land itself, correct?
8 A. That is correct.
9 Q. And you were not asked to formulate any
10 opinions as to value of the home with or without
11 fiberoptics; is that correct?
12 A. That is correct. If I may, at a side light, in
13 the course of my investigation I did determine what the
14 square footage of the lot, the subject lot, was. And
15 that was for the, to see if it met current standards
16 under the current zoning.
17 Q. Okay. And what did you come up with?
18 A. I came up with, it did meet the minimum
19 requirements of the development standards for the zoning
20 of R1-20.
21 Q. So that it had at least 20,000 square feet.
22 A. Correct.
23 Q. And were you relying upon the MetroScan report
24 for that?
25 A. Both the MetroScan report and also in the
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1 MetroScan software there's an ability for the lot to be
2 measured, which I did.
3 Q. And that is --
4 A. I came up with an estimated lot size of 26,638
5 square feet.
6 Q. And that is on this Tract Number 1 plat map?
7 A. That is correct.
8 Q. Okay. That's part of Exhibit 3. And where did
9 you obtain the measurements?
10 A. The measurements were already on the map
11 itself, and I just overlaid a mapping program on top of
12 it to determine if that is correct. I use it to
13 determine the square footage of irregular lots.
14 Q. Other than Andrea at the city of Monte Sereno
15 and Mr. Glaspy, have you spoken with anybody else about
16 this particular assignment?
17 A. No, I have not.
18 Q. Do you plan on doing any further work?
19 MR. GLASPY: I intend to get to Mr. Ivie the
20 transcripts and exhibits for the other disclosed
21 experts, but other than that, I'm not aware of anything.
22 MR. MINOLETTI:
23 Q. Have you read any depositions that were taken
24 in this case?
25 A. No, I have not.
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1 Q. There was one advertisement contained within
2 the materials you were sent. Did you rely on any
3 portion of this advertisement in formulating your
4 opinions?
5 A. No, I did not.
6 Q. There's also a site plan type drawing that's
7 been reduced down as part of the materials that you were
8 sent.
9 A. I have that in front of me.
10 Q. Did you rely on any of the information
11 contained on that drawing in formulating your opinions
12 in the case?
13 A. I did look at this and, yes, I did.
14 Q. What information did you rely on in formulating
15 your opinions?
16 A. The information that showed the configuration
17 of the lot, how the main structure was situated on the
18 lot, and the supposed guest house where it sat on the
19 lot also, that showed it was detached from the main
20 residence.
21 Q. Do you see on that document where it says, see
22 floor plan for exact size and location of dwellings,
23 pool and court?
24 A. Yes, I do.
25 Q. Have you ever seen a floor plan that shows the
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1 exact size and location of the dwellings, pool and
2 court?
3 A. Besides this one, no.
4 Q. Do you know what the court refers to?
5 MR. GLASPY: Don't guess or speculate.
6 THE WITNESS: I do not know.
7 MR. MINOLETTI:
8 Q. Were you asked to formulate any opinion as to
9 the fair market value of the property, either at the
10 time it was purchased by Mr. Simpson or now?
11 A. No, I was not.
12 Q. In your opinion, is this property a level
13 two-thirds of an acre?
14 A. Based upon the appraisal, it is a level lot.
15 Q. You calculated the acreage, did you not?
16 A. I calculated the square footage of the lot.
17 Q. And on that sheet it says .612 acres.
18 A. That's right, the measurement software did
19 that.
20 Q. The photographs in your file, were they of any
21 particular importance to you?
22 A. They don't have any particular importance to
23 me. It gives me more of a -- it gives me a visual of
24 certain aspects of the subject property.
25 MR. MINOLETTI: I think that's all I have.
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1 (11:41 a.m.)
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5 ____________________________
6 MARK T. IVIE
7
8 ____________________________
9 Date
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MADELEINE M. FREDA, INC. 21
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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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