Page 0001
1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 IN AND FOR THE COUNTY OF SANTA CLARA
3 UNLIMITED JURISDICTION
4
5 RALPH SIMPSON,
6 Plaintiff,
7 vs. No. 1-05-CV-053398
8 LOU RAE KAGEL, LYNN O'BRIEN,
JAMES O'BRIEN, STONEHENGE
9 PROPERTIES, INC., VALLEY OF
CALIFORNIA, INC., dba COLDWELL
10 BANKER, DOUGLAS REA and DOES
ONE through TWENTY, inclusive,
11
Defendants.
12 _______________________________/
13 AND RELATED CROSS-ACTIONS
_______________________________/
14
15
16
17 DEPOSITION OF LYNN O'BRIEN
18 Tuesday, July 25, 2006
19 951 Mariner's Island Boulevard, Suite 630
20 San Mateo, California
21
22 MADELEINE M. FREDA, INC.
Certified Shorthand Reporters
23
Reported by: 2000 Broadway
24 Joanne Haag P.O. Box 3119
CSR No. 4716 Redwood City, CA 94064
25 Our File No. (650) 365-6152
Page 0002
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 Defendants GLASPY & GLASPY, INC.
Lynn O'Brien, James Attorneys at Law
10 O'Brien; Stonehenge The Garden Alameda
Properties, Inc.: 1550 The Alameda, Suite 200
11 San Jose, CA 95126
BY: PAUL C. GLASPY, ESQ.
12
For the Defendant LAW DIVISION OF NRT INCORPORATED
13 Valley of California WESTERN DIVISION
dba Coldwell Banker: 12657 Alcosta Boulevard, Suite 500
14 San Ramon, CA 94583
BY: STEPHEN W. THOMAS, ESQ.
15
16 BE IT REMEMBERED that, pursuant to Notice and on
17 Tuesday, July 25, 2006, commencing at the hour of
18 1:05 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 LYNN O'BRIEN
23
24 who was produced as a witness under the provisions of
25 Section 776 of the Evidence Code.
Page 0003
1 I N D E X
2 Examination by: Page
3 Mr. Minoletti 5
4 Mr. Koss 84
5 Mr. Thomas 117
6 Further Examination by:
7 Mr. Minoletti 120
8 Mr. Koss 122
9 EXHIBITS
10 106 Bates K577-K579 - Exclusive Authorization 40
11 and Right to Sell
12 107 Real Estate Purchase Contract 42
13 108 Disclosure dated 3/19/01 42
14 109 K191-K192 - 3/7/01 note and attached Brochure 44
15 110 Brochure 46
16 111 K161 - Brochure 48
17 112 K100-K108 - Descriptive brochure 50
18 113 K45 - 9/9/01 email 51
19 114 K40 - Addendum to Contract 52
20 115 K321 - 9/17/01 letter 53
21 116 K48 - Fax cover with handwritten message 54
22 117 K310 - Email with handwritten notes 54
23 118 K3, K311 - Fax cover with handwritten 56
24 message and attached email
25 119 K17 - Fax cover with handwritten message 57
Page 0004
1 Exhibits (continued): Page
2 120 K301 - 9/26/01 letter 57
3 121 K19 - Fax cover with handwritten message 58
4 122 K276 - Handwritten note 61
5 123 K279 - Contract on Blanchard notes 63
6 124 K297 - 9/26/01 handwritten note 63
7 125 81 - Architectural drawing 64
8 126 83 - Submittal Requirements for Site and 66
9 Architectural Review
10 127 84 - City of Monte Sereno Agenda Site and 67
11 Architecture Committee
12 128 121 - 5/9/99 letter 68
13 129 127-131 - Agreement Between Owner and 69
14 Architect
15 130 133 - Letter of Authorization 70
16 131 144 - Heritage Bank items list 71
17 132 200 - 11/16/99 list by City of Monte Sereno 71
18 133 193 - 11/19/99 letter 72
19 134 K260 - Handwritten notes 73
20 135 Two-page article 75
21 136 407-408 - Cover sheet and 6/29/00 letter 77
22 137 12-sheet Vicinity Map/Site Plan/Project Data 81
23 138 5-sheet Vicinity Map/Site Plan/Project Data 82
24 139 Sheet 3 of 3, Building Sections/Exterior 122
25 Elevations
Page 0005
1 LOU RAE KAGEL, [this should be Lynn O'Brien]
2 being first duly sworn, was examined and testified as
3 follows:
4 EXAMINATION BY MR. MINOLETTI
5 BY MR. MINOLETTI:
6 Q. Good afternoon. Would you state your full name
7 for the record, please.
8 A. Lynn Ann O'Brien.
9 Q. And what is your current home address?
10 A. 14548 La Rinconada Drive in Los Gatos.
11 Q. And what is your current employment address?
12 A. I don't have one.
13 Q. Okay. Have you given a deposition before?
14 A. No.
15 Q. Have you ever testified in court before?
16 A. No -- small claims court, is that what you --
17 okay, small claims court, sure.
18 Q. On more than one occasion?
19 A. No.
20 Q. Just once.
21 A. Yes.
22 Q. Okay.
23 A. Well, it was the same case. There was a --
24 once in the regular court and then we appealed the
25 ending result, so there was the same case but of two
Page 0006
1 court appearances.
2 Q. Where was that case?
3 A. In San Jose.
4 Q. Do you remember the names of the parties?
5 A. I don't know if I do. Let me think for a
6 minute. It was Brenda something. I don't know offhand,
7 I'm sorry.
8 Q. Okay. How long ago was it?
9 A. It was years ago.
10 Q. And what was the final result?
11 A. We won. I mean, it was -- she had water under
12 her house three years after she had bought the house,
13 and we had sold it to her and it was found that she was
14 sprinkling her, she had roses planted too closely to the
15 house and so forth.
16 Q. Was this a house that you built or had built?
17 MR. GLASPY: You being whom, Lynn personally?
18 BY MR. MINOLETTI:
19 Q. Yes.
20 A. This was a house that we built and lived in and
21 sold, yeah.
22 Q. Have you been involved in any other lawsuits?
23 A. No.
24 Q. I know your attorney has probably explained to
25 you the deposition process, but I'll just go over some
Page 0007
1 of the ground rules.
2 A. Okay.
3 Q. You understand that you're under oath --
4 A. Yes.
5 Q. -- to tell the truth, just as if you're
6 testifying in court.
7 A. Right.
8 Q. And you're doing very well. Please wait until
9 I finish my question before you start to talk because
10 the court reporter can't take us both down at the same
11 time.
12 A. Okay.
13 Q. And you're doing very well answering audibly.
14 We can't understand later when we read the deposition
15 transcript, uh-huh or uh-uh, so if you please say yes,
16 please say no, and we'll understand that better later,
17 okay?
18 A. Okay. Yes.
19 Q. If for any reason you need to take a break,
20 just say so, we'll take a break, okay?
21 A. Okay.
22 Q. If you can't recall something, please say so,
23 we don't want you to guess or speculate, and just
24 because I ask you a question doesn't mean you have to
25 have an answer, okay?
Page 0008
1 A. Okay. And I do have one more thing. You just
2 asked me if I've ever been involved in any other
3 lawsuits.
4 Q. Yes.
5 A. And I said -- I don't know why I just said no.
6 I was wrong. So let me correct that right now.
7 Q. All right.
8 A. Okay. Back about 10 years ago, when I was in
9 human resources at a company, we had an employee who was
10 suing the company, and I sat through his deposition.
11 MR. GLASPY: He's asking party to a lawsuit,
12 not --
13 THE WITNESS: I was probably named because I
14 was in human resources and it was regarding, he was
15 suing the company, and I was in human resources, and I
16 think -- I don't remember but I think, I mean, there was
17 a reason I was there, I must have been named, but it was
18 settled and it was no big deal. I just remember being
19 at his deposition to listen to his stuff.
20 And then about two or three years ago there was
21 a gentleman who, we had built a house, a beach house,
22 and he had some water intrusion on a deck. And that was
23 not, never went to court or anything like that, but
24 there was some water intrusion on a deck.
25 BY MR. MINOLETTI:
Page 0009
1 Q. The first case you talked about with the
2 employee, do you remember the name of that case?
3 A. Well, the name of the company that I worked for
4 was AccessLan but that was -- anyway.
5 Q. Okay. And do you know where that was venued?
6 A. In San Jose.
7 Q. The second case you mentioned with the water
8 intrusion?
9 A. Yeah. It was a house that we built in
10 Capitola.
11 Q. I take it that's in Santa Cruz County?
12 A. Yeah.
13 Q. Do you remember the names of the parties
14 involved in that?
15 A. Ron Barber and us.
16 Q. And your depositions were not taken in either
17 of those cases, correct?
18 A. No.
19 Q. Have you ever been a plaintiff in a lawsuit
20 where you've sued someone?
21 A. I don't -- no, I don't think so.
22 Q. Just as you did a few minutes ago, if at any
23 time you don't recall something when I ask the question,
24 but later on you do recall, after a break or something
25 like that --
Page 0010
1 A. Certainly bring it up, yeah.
2 Q. Exactly. Are you feeling okay to testify
3 today?
4 A. I'd rather not. Do I have to? No, I'm just
5 kidding. No, I'm fine.
6 Q. Can you give me a brief summary of your
7 educational history.
8 A. Okay. I went to Daves Avenue Grade School,
9 Los Gatos High School, graduated from UOP, and that's
10 about it, with a business degree.
11 Q. Can you give me a brief history of your
12 employment.
13 A. Brief? I'm 45 years old. I worked primarily
14 for the first 25 years of my career in human resources
15 through, for electronics companies and in the networking
16 industry, primarily, and then I quit when I had my
17 daughter. And I have occasionally, you know, we started
18 out building kind of a house for ourselves that somebody
19 bought and since then I've built probably five or six
20 houses that we've sold, but we've lived in three of
21 them. So I don't know if that's employment or not.
22 It's been profitable.
23 Q. The five or six houses that you built, have
24 those all been --
25 A. And I -- I'm sorry, go ahead. I didn't mean to
Page 0011
1 interrupt you.
2 Q. Have those all been through Stonehenge?
3 A. No. Stonehenge Properties built one house.
4 Q. And that one house would be the house that
5 we're here talking about?
6 A. That's this house.
7 Q. All right. Now, you started to say something
8 and that was --
9 A. That was it. That was exactly what I was going
10 to say.
11 Q. And in what capacity or names were the other
12 homes built?
13 A. They were built by and really for us. We lived
14 in three of them and one of them, we didn't ever intend
15 to sell but somebody came and offered us money for it,
16 and so it was different.
17 Q. Have all of these homes been in the Los Gatos
18 area?
19 A. Los Gatos, Saratoga, Monte Sereno, yeah.
20 MR. GLASPY: And Capitola.
21 THE WITNESS: And the Capitola house also,
22 yeah. That was the only other one.
23 BY MR. MINOLETTI:
24 Q. Was the Capitola house one that you were going
25 to live in?
Page 0012
1 A. We did live in it for a year. I mean, we had
2 it as a vacation house, it was never our primary
3 residence, but we maintained it for a year.
4 Q. Can you give me the addresses of the, is it
5 five or six homes that you had built?
6 A. Okay. Not the actual numbers, but I could
7 probably tell you the streets.
8 Q. The street and the city?
9 A. Probably, yeah.
10 Q. Okay.
11 A. La Montaine (phonetic) Court in Los Gatos.
12 Daves Avenue, Los Gatos -- Monte Sereno. Capitola, it
13 was on El Camino Medio in Capitola. Deer Trail Court in
14 Saratoga. Villa Oaks in Saratoga. That would be it, I
15 think.
16 Q. And Blanchard.
17 A. That was Stonehenge, yeah.
18 Q. So that's all, including Blanchard, six.
19 A. Yes.
20 Q. Were these all homes, all six of them, ones
21 that were custom built?
22 A. Yes. This has been -- okay, sorry.
23 Q. How long have you been involved in building
24 custom homes?
25 A. Well, my daughter's seven. I left work when
Page 0013
1 I -- I think that she -- I did -- our first house which
2 we never intended to sell either, but somebody
3 approached us to buy it, was on Villa Oaks, and that was
4 before she was born. That was -- and then on the second
5 house was Deer Trail Court and we moved into that when
6 she was an infant. She was only two months old.
7 Q. Do you have any special training that you've
8 been involved in to build custom homes?
9 A. No.
10 Q. Do you hold any professional licenses, like a
11 real estate license or a contractor's license?
12 A. No.
13 Q. Did you review any documents in preparation for
14 your deposition today?
15 A. No.
16 Q. Do you have a file that relates to the
17 Blanchard property?
18 A. No, I mean, I have -- everything I've given
19 to my attorney.
20 MR. GLASPY: Everything she has, has been
21 produced.
22 BY MR. MINOLETTI:
23 Q. At some point in time did you have more
24 documents on the Blanchard property than what you've
25 turned over to your attorney?
Page 0014
1 MR. GLASPY: In relation to the construction?
2 BY MR. MINOLETTI:
3 Q. Yes.
4 A. There were receipts and things and all the
5 stuff from just the construction, yeah, that existed at
6 one point. We've moved like three times since then and
7 I don't know what's...
8 BY MR. MINOLETTI:
9 Q. So whatever you did have is gone.
10 A. Yeah.
11 Q. Now, how long has Stonehenge Properties
12 existed?
13 A. I don't know the --
14 MR. GLASPY: That was included within our
15 answers to form interrogatories, and I didn't bring the
16 corporate filing.
17 THE WITNESS: Was it '98 or --
18 MR. GLASPY: Don't guess.
19 THE WITNESS: I don't know, I have no idea.
20 MR. GLASPY: The information has been provided,
21 I don't know what the date is, though.
22 BY MR. MINOLETTI:
23 Q. Was Stonehenge Properties created just for the
24 Blanchard home?
25 A. No. We were planning to start to do more work
Page 0015
1 in this area, and then we didn't. The market was very
2 poor after that.
3 Q. Did Stonehenge Properties build anything other
4 than the Blanchard --
5 A. No.
6 Q. -- home?
7 A. No.
8 Q. Of the other five homes that were built, were
9 those listed with Coldwell Banker?
10 A. Yeah, a lot of -- I mean, not all of them,
11 but -- two of them weren't ever listed when they sold.
12 Actually, three of them weren't ever listed. We've
13 been -- the first one, the people just approached us, or
14 had their real estate agent approach us who I believe
15 was a Coldwell Banker real estate agent. Another one
16 was -- okay. This lady had her --
17 MR. GLASPY: Let me interrupt. It would be
18 helpful to identify the street.
19 THE WITNESS: Okay. I'm just using my mind to
20 think. Okay, so you said the word listed.
21 BY MR. MINOLETTI:
22 Q. Yes.
23 MR. GLASPY: Perhaps you could read her the
24 street names.
25 THE WITNESS: Give me the list again, I'm
Page 0016
1 sorry.
2 MR. GLASPY: Listen to the street names.
3 BY MR. MINOLETTI:
4 Q. Deer Trail?
5 A. Deer Trail was listed, yes, with Coldwell
6 Banker.
7 Q. And Villa Oaks?
8 A. No.
9 Q. The Capitola house?
10 A. No.
11 Q. Daves?
12 A. Daves, no.
13 Q. And the other one is in Los Gatos but I didn't
14 write down --
15 A. I have to ask my attorney a question.
16 (Off the record.)
17 THE WITNESS: So on Daves Avenue, I had known a
18 Coldwell Banker agent and I had him over to see the
19 house, and we were living in the house, and he said that
20 he had a buyer for the house and he'd like to show it to
21 them. And I said, "Well, I don't know, let me think
22 about it."
23 So then after a while I let him show it to this
24 buyer; however, I just said, "I'm not going to list it,
25 we're not putting a sign, we're not listing the house,"
Page 0017
1 but he did bring in the buyer. I offered him three
2 percent to do that.
3 Then he said, "Well, I'd like to make an extra
4 point on the deal." So I think at the end of the day as
5 we wrote the deal up, he ended up being the listing
6 agent on paper to get a four -- and he did it two and
7 two. So that's what happened with that.
8 But I never listed the house. We never
9 advertised it, never had a sign out, any of that kind of
10 stuff.
11 BY MR. MINOLETTI:
12 Q. Was that the house in Los Gatos?
13 A. That was my house on Daves Avenue.
14 MR. GLASPY: I believe that's Saratoga, isn't
15 it?
16 THE WITNESS: No, that's actually Monte Sereno.
17 MR. THOMAS: Can I ask how you spell that?
18 THE WITNESS: D-a-v-e-s.
19 MR. THOMAS: Thank you.
20 BY MR. MINOLETTI:
21 Q. Other than these six properties that we've
22 already identified, have you bought and sold any other
23 residential real estate?
24 A. Sure. I live in a house right now on
25 La Rinconada, it's an older home that we haven't done
Page 0018
1 anything to and we haven't sold it yet. And I had to
2 buy either lots or tear-down type houses previous to
3 building these houses, you see what I'm saving? We did
4 buy the Daves Avenue, actually through Lou Rae -- no,
5 that was, it was listed with Coldwell Banker, but we
6 bought the Daves Avenue property when it had an old
7 tear down on it.
8 So, yeah, there was something that always
9 preceded each of these, if we had to build a house, we
10 had to somehow acquire the property to do so.
11 Q. Whether that be raw land or a tear down.
12 A. Right.
13 Q. Any other buying and selling of residential
14 properties other than anything associated with this --
15 A. There was a house on Bruce in Los Gatos -- in
16 Monte Sereno -- a small house that we bought to live in
17 while we were building and waiting to move into the
18 Daves Avenue house, bought and sold that. And that I
19 think, I think that's it. That's all I recall.
20 Q. Did you ever market any of these six homes that
21 were built as your dream house?
22 A. As my dream house?
23 Q. Yes.
24 MR. GLASPY: By market what do you mean?
25 BY MR. MINOLETTI:
Page 0019
1 Q. Advertise for sale?
2 MR. GLASPY: Using those terms.
3 THE WITNESS: I don't -- my dream house. No.
4 BY MR. MINOLETTI:
5 Q. Did you ever discuss, have any discussions with
6 Mr. Simpson about this particular property, the
7 Blanchard house?
8 A. Yes.
9 Q. On how many occasions?
10 A. One that I recall.
11 Q. What do you recall?
12 A. I recall that we were going to pass on to him
13 the plans of the house and we met, and I recall it being
14 in the kitchen of the house and -- I'm sorry, maybe
15 there were -- there were two occasions when I may have
16 met him. And then -- but to go on with the one that I'm
17 talking about, we were at the island in the kitchen, I
18 think the agents had kind of worked out most of the
19 issues and we felt that this was going to go forward, so
20 I was meeting with him to turn over plans and answer any
21 questions that he might have. And we stood at the
22 island and I believe in front of the ovens and talked
23 about the plans and stuff.
24 Q. Do you remember when this was, the date?
25 A. Oh, no, I don't.
Page 0020
1 Q. Was it sometime after Mr. Simpson had made the
2 offer on the house?
3 A. Yes, but before the close of escrow.
4 Q. Were the plans actually out on the counter?
5 A. I think they were rolled up originally, when we
6 started the conversation with the rubber band around
7 them, and then we unrolled them and looked at them,
8 yeah.
9 Q. What was the substance of your discussion?
10 A. I think just general questions about the house
11 and the operation of, perhaps operation of some of the
12 appliances, things like that. And I was going to hand
13 him over the plans, just give them to him, and then we
14 opened them and he looked at them, and he pointed, I
15 remember him pointing to the pool area.
16 Q. Did he ask you about the swimming pool?
17 A. Yes.
18 Q. What did he say?
19 A. And I said that those, the pool, it says future
20 pool on the plans, and I said, "The pool is not
21 approved. The pool was not approved in the original
22 permits. That will be something that you would have to
23 pursue."
24 Q. Did Mr. Simpson ever ask you about the
25 possibility of putting another structure on the
Page 0021
1 property?
2 A. No.
3 Q. Did Mr. Simpson ever ask you about the total
4 livable square footage on the property?
5 A. No.
6 Q. Did Mr. Simpson ever ask you about the
7 air-conditioning for the guest house?
8 A. No. He talked with the agents about it. I
9 think that had already been settled at that point, I'm
10 not sure, but I think it was, that whole
11 air-conditioning thing. I didn't have any direct
12 conversations about it.
13 Q. I only want to know if you had direct
14 conversations.
15 A. Okay.
16 Q. Did Mr. Simpson ever have any conversations
17 with you about fiberoptics being installed in the house?
18 A. No.
19 Q. Did you ever have any discussions with
20 Mrs. Simpson?
21 A. No.
22 Q. Did you ever meet Mrs. Simpson?
23 A. Not that I recall.
24 Q. Did you ever meet Mr. Simpson's son?
25 A. No.
Page 0022
1 Q. Did you ever meet Mr. Simpson's daughter?
2 A. I'm surprised to hear he has a daughter. No, I
3 didn't. I don't remember even talking about it,
4 whatever.
5 Q. Was there some portion of the driveway that was
6 removed or altered after Mr. Simpson made the offer on
7 the house?
8 A. No.
9 Q. When was the home approved for occupancy by the
10 building department?
11 A. I don't know offhand.
12 Q. Was it approved for occupancy before it was
13 placed for sale?
14 A. I don't know. I'd have to look back.
15 Q. When were the concrete patios poured for the
16 house?
17 A. It's so long ago, I'm not sure, to be honest
18 with you, I'm sorry.
19 Q. Were there ever any as-built plans given to
20 you?
21 A. No.
22 Q. Do you know if any as-built plans were ever
23 prepared for this house?
24 A. No.
25 Q. No, you don't know?
Page 0023
1 A. No, I don't believe there were any.
2 Q. Did you ever hold any open houses at the
3 property?
4 A. There was --
5 MR. GLASPY: When you say you, are you
6 referring to Lynn personally or just open houses in
7 general?
8 BY MR. MINOLETTI:
9 Q. You personally at the Blanchard property.
10 A. There was a day, and I don't remember why it
11 happened or if Lou Rae couldn't be there or was late or
12 something, there was a day that I was there for an hour
13 or so during an open house, if I recall.
14 Q. Do you remember meeting Mr. Simpson at an open
15 house?
16 A. No, I don't.
17 Q. Do you recall having any flyers or brochures
18 available at an open house?
19 A. No. I mean, I recall that there were flyers in
20 the box out front and flyers on the island, but -- yeah,
21 there were flyers available, yes. I'm sorry.
22 Q. When you say island, you mean the island in the
23 kitchen?
24 A. Uh-huh.
25 MR. GLASPY: Is that a yes?
Page 0024
1 THE WITNESS: Yes.
2 MR. GLASPY: Uh-huh doesn't come out very well.
3 THE WITNESS: Oh, sorry.
4 MR. GLASPY: You're doing fine.
5 BY MR. MINOLETTI:
6 Q. We talked about the one meeting and discussion
7 you had with Mr. Simpson in the kitchen, where the plans
8 were sitting on the counter.
9 A. Mm-hmm.
10 Q. What was the other occasion you had to meet
11 with and speak with Mr. Simpson?
12 A. Through, after all of this, the lawsuit
13 started, it was told to me that he came through an open
14 house where I was. I don't recall meeting him or I
15 don't recall it.
16 Okay, I'm sorry. Let me -- that's a good
17 point.
18 I was removing -- this is a separate situation
19 but I was removing, the house was all done and closed
20 escrow, so that's why I didn't think that this was
21 pertinent, but I'll bring it up.
22 The house was done and closed escrow and I did
23 not move my furniture for a couple of days after because
24 they had delayed so long and so many times closing
25 escrow, I wasn't sure it was really going to happen. So
Page 0025
1 I didn't want to move all the furniture out of the
2 house, staging and everything, until they had really
3 followed up and done everything.
4 So at that point, it was like two days after
5 escrow had closed and I came back to remove the
6 furnishings and things, and Mr. Simpson, I think and he
7 his wife came to the door and he -- I was removing
8 things and he saw me taking a mirror down that he
9 believed should remain with the house. And we had a
10 minor discussion about that. And I decided, fine, leave
11 the mirror, if you want it you can have it.
12 Q. Was that the mirror in the downstairs powder
13 room?
14 A. Yeah. There's only one floor in the house, so
15 in the powder room, yeah.
16 Q. And so that would be three occasions, then,
17 where you've met or talked with Mr. Simpson?
18 MR. GLASPY: Well, misstates testimony. I
19 believe she was told perhaps she met him at an open
20 house but I don't, I think she said she didn't
21 specifically recall that.
22 THE WITNESS: The ones that I recall -- you
23 know what, I thought you meant initially before like we
24 sold the house to them and everything, but at the end,
25 you meet, you know, I remember him and his wife knocking
Page 0026
1 on the door, I remember meeting in the kitchen, and I do
2 not remember them coming through the open house;
3 however, it's been told to me that they did. And there
4 may have been one other time when we met but I can't
5 really quite place it, maybe doing a walk-through or
6 something at the end, I don't know, but I can't
7 remember, I'm sorry.
8 BY MR. MINOLETTI:
9 Q. Okay. Did you ever give anything in writing to
10 Mr. Simpson other than I suppose the plans that you left
11 for him?
12 A. The plans and --
13 MR. GLASPY: What about the sales contract,
14 would that be giving?
15 MR. MINOLETTI: I don't think so.
16 MR. GLASPY: Okay.
17 THE WITNESS: No, I don't believe I gave him
18 anything in writing besides the plans I handed to him.
19 BY MR. MINOLETTI:
20 Q. You only recall being at one open house?
21 A. Yes.
22 Q. And do you remember if that was on a weekend?
23 A. Oh, yeah, it would have been a weekend, like a
24 Sunday or something, around 1:00 in the afternoon or
25 something. I think I was --
Page 0027
1 Q. And the open house that you recall, did you do
2 that by yourself?
3 A. It so happens that that was an -- yeah, it
4 would have been very unusual for that to have occurred,
5 but yes.
6 Q. Did you ever hold an open house together with
7 Lou Rae Kagel?
8 A. No.
9 Q. On any of your other properties that were
10 listed for sale, did you ever hold an open house?
11 A. No.
12 Q. At the one open house that you recall at this
13 property, do you recall a flip chart being set up in the
14 rear patio area?
15 MR. GLASPY: I'm sorry, a what?
16 BY MR. MINOLETTI:
17 Q. A flip chart?
18 A. No.
19 Q. Do you ever recall seeing a flip chart for this
20 house?
21 A. No.
22 Q. Were you given copies of the brochures by
23 Lou Rae Kagel?
24 A. No.
25 Q. Were you ever given any of the advertising to
Page 0028
1 review before it was actually put into print for this
2 house?
3 A. No.
4 Q. Did you ever discuss with Lou Rae Kagel what
5 features of this property should be placed into
6 advertising or marketing materials?
7 A. We tried having conversations, she called me on
8 the phone, she said she wanted to ask me about, she
9 started asking me a litany of questions and I didn't
10 know all the answers and I couldn't remember some of the
11 appliance names and what he we had and didn't have. So
12 she ended up just going over and walking through and
13 collecting whatever information she wanted.
14 Q. Have you since seen any of the brochures or
15 advertisements for the house?
16 MR. GLASPY: As part of this litigation?
17 BY MR. MINOLETTI:
18 Q. Yes, even as part of this litigation.
19 A. Yeah.
20 Q. Before this litigation, have you seen copies of
21 the marketing brochures or advertising for this house?
22 A. I saw that the box was full out in the front of
23 the house and I saw that there were some on the island.
24 Q. Did you look at them?
25 A. Not really, no.
Page 0029
1 Q. Did you ever provide a copy of the plans for
2 the home to anyone at Coldwell Banker?
3 A. I don't think so. Maybe through the
4 litigation, you --
5 MR. GLASPY: He's talking about prior to the
6 transaction, prior to the sale.
7 BY MR. MINOLETTI:
8 Q. Prior to the sale.
9 A. I don't think so.
10 Q. Did you give any information to anyone at
11 Coldwell Banker about the features of the house before
12 the sale of the house?
13 A. No. -- well, wait a minute. Lou Rae and I
14 would occasionally, you know, I mean, there was -- I'm
15 trying to think if we actually talked about it.
16 I wasn't able to give her what she wanted over
17 the phone so then she went through it, I remember
18 mentioning to her that a guy had wired some additional
19 networking stuff and that there was a flyer on the
20 island for his work, to advertise his work, and that,
21 you know, if the buyer wanted to, he could contact them
22 and purchase that work or have him come over and do more
23 work or something like that. So I remember having a
24 conversation about that.
25 I think -- if I recall anything else -- I
Page 0030
1 remember that we anecdotally as we stood there
2 sometimes, or walked through, she would, we would talk
3 about the Fisher & Paykel range -- washers and
4 dishwashers or, you know, things like that.
5 Q. The issue of fiberoptics, do you know what
6 fiberoptics are?
7 A. Yes.
8 Q. What's your understanding of fiberoptics?
9 A. I believe that fiberoptics is a very high-end
10 cable that has glass fiber running through it to
11 transmit data or something like that, it's used across
12 oceans because it's, I don't know, it has a lot of speed
13 or something like that.
14 When I worked in technology, high tech, I knew
15 a little bit about that kind of stuff.
16 Q. Was it your understanding that the Blanchard
17 home had fiberoptics cables installed?
18 A. No.
19 Q. What was your understanding of what was
20 installed at the Blanchard home?
21 A. We had CAD5 cabling I believe to most of the
22 outlets, the telephone types of, you know, cabling, I
23 think we had some Monster cable to the speakers, and
24 then this gentleman who I mentioned had come through and
25 said that he wanted to, when the wiring was going on,
Page 0031
1 the electrician knew this guy and he wanted to come in
2 and do some pre-wiring that was higher end, and sell it
3 then to the new homeowner, come in and -- so he puts it
4 all in, and he takes pictures of it, takes a movie of it
5 or something. And I just said, "Fine, if you want to go
6 ahead and put it in you can put it in and we'll put your
7 brochure on the --"
8 Q. So is it your understanding that he did
9 actually put something in?
10 A. To the best of my recollection, he did put it
11 in.
12 Q. What is your understanding of what he put in?
13 A. Just that it was --
14 MR. GLASPY: If you know. Don't speculate.
15 THE WITNESS: Okay. Better data drops, I don't
16 know. That's all I -- my guess, yeah, from what I
17 recall, what he told me.
18 BY MR. MINOLETTI:
19 Q. Do you remember this individual's name or
20 business name?
21 A. No, I don't. I've tried to track it down and
22 figure it out now, and I can't.
23 Q. Who was the electrician?
24 A. That we have, happen to have --
25 MR. GLASPY: We produced the document. So do
Page 0032
1 you remember the name?
2 THE WITNESS: Vince, I think.
3 BY MR. MINOLETTI:
4 Q. In any of the other homes that you've built,
5 did you install fiberoptics?
6 A. No.
7 Q. Do you anywhere have a list of the
8 subcontractors that worked on the Blanchard home?
9 A. Not any longer. I think I gave something to
10 Mr. Simpson.
11 Q. The general contractor for the home was Brian
12 Oram?
13 A. Well, he was the site supervisor, yeah, manager
14 person.
15 Q. Who was the general contractor?
16 A. Brian.
17 Q. Does your husband have a real estate license?
18 A. No.
19 Q. Does your husband have a contractor's license?
20 A. No.
21 Q. Do you recall which contractor did the patio
22 work at the house?
23 A. No.
24 Q. Do you know, did you ever tell Mr. Simpson that
25 he could have an additional 800 square foot structure on
Page 0033
1 the property?
2 A. No.
3 Q. And it's my understanding, other than the
4 incident with the mirror, you have no recollection of
5 speaking with Mrs. Simpson; is that correct?
6 A. I don't, I don't think she was there during the
7 time of the mirror, that's why I'm trying to remember if
8 maybe he popped in while I was removing the mirror but
9 that was a separate time -- I believe I only saw her
10 when she came to the front door but I don't remember
11 them ever coming in when they came to the front door at
12 that time. So the time when I was removing the mirror
13 must have been a separate time.
14 MR. GLASPY: Are we now going to refer to it as
15 the mirror incident so it has a name?
16 BY MR. MINOLETTI:
17 Q. Are there any occasions that you recall where
18 you actually spoke to Mrs. Simpson?
19 A. Mm-mm.
20 Q. No?
21 A. No. I'm sorry. No.
22 Q. How did you end up listing the Blanchard home
23 with Lou Rae Kagel?
24 A. Lou Rae is a friend of my mom's.
25 Q. They worked together at Coldwell Banker?
Page 0034
1 A. Yeah, but beyond that, we're very good friends.
2 Q. Did any of the events involved in this sale
3 create any problems between you and Lou Rae Kagel?
4 MR. GLASPY: I'm going to object to the form of
5 the question, it's irrelevant.
6 MR. KOSS: Also vague and ambiguous as to what
7 might or might not be problems.
8 BY MR. MINOLETTI:
9 Q. You can answer.
10 A. I can? Oh, okay. We have been very cordial
11 with each other. I haven't made any business decisions
12 based on this, like not using her again or something,
13 you know. I mean, she's a friend of our family and I
14 care about her.
15 MR. GLASPY: You answered it.
16 BY MR. MINOLETTI:
17 Q. How did you choose the architect for this
18 particular home?
19 A. He was the architect for the very first home
20 that my husband and I built for ourselves, the one on
21 Villa Oaks.
22 Q. Was he an architect on any other home that
23 you've been involved in?
24 A. I don't think so.
25 Q. Has Brian Oram been involved in any other homes
Page 0035
1 that you've built?
2 A. Yes.
3 Q. Which other ones?
4 A. Daves Avenue, Capitola, I think he did some
5 work on La Montaine.
6 Q. That's it?
7 A. (Witness nods head up and down.)
8 Q. Did you ever speak with anyone at the City of
9 Monte Sereno about the building of the Blanchard home?
10 A. Ever?
11 MR. GLASPY: At any point?
12 BY MR. MINOLETTI:
13 Q. Yes.
14 A. I would have to say yes, but that's just
15 because I can't remember the specific occasion, it was a
16 long time ago. I would have to say I probably went in
17 and paid the fees, I went in probably and signed things,
18 probably, but however, the architect was handling a lot
19 of the interaction with the city and so I couldn't tell
20 you specifically back that far regarding this house what
21 I did.
22 Q. Did you have any role in design of the home and
23 the property?
24 MR. GLASPY: Tough question, Paul. Obviously
25 she would have interaction with the architect so I'm
Page 0036
1 having trouble with your term design.
2 THE WITNESS: I didn't design -- I mean, I gave
3 my feedback to the architect when he did it, it's normal
4 cycle where he'll take a stab at what's good for that
5 lot, he'll write to me, I'll say, I want this bigger and
6 bigger, or, I don't think we need that room; that kind
7 of interaction, yes.
8 BY MR. MINOLETTI:
9 Q. Did you ever have any interaction with the
10 architect about impervious structures for the property?
11 A. Yes.
12 Q. Do you recall any particular discussion with
13 the architect about what could or could not be put on
14 the property?
15 A. Yes.
16 Q. What do you recall?
17 A. I recall that at one point we had the house and
18 a sports court and a pool and the guest house on the
19 property as, you know, just looking at all options, and
20 then about it was told to me that clearly we were going
21 to be over impervious coverage and structural coverage
22 if we built all of these things, they would not all be
23 allowed.
24 So then I said, okay, let's just do the house
25 and the guest house, then we'll let, 'cause we knew that
Page 0037
1 this house was going to be for sale, this was --
2 remember, I was starting this, to do this under
3 Stonehenge, this was the Stonehenge house, it wasn't --
4 and so it wasn't that I was ever going to live in it.
5 And I figured, we would let somebody, whoever
6 bought the house, decide what they wanted to do with any
7 remaining square footage that there might be allowable
8 beyond what we used up.
9 Q. And do you have any recollection of what was
10 still available?
11 A. Yeah. I thought that my architect had told me
12 that there was about 800 square feet allowable, and I do
13 recall that, at least I had heard that at Monte Sereno,
14 everything counts, like every, if you put an arbor up
15 that's an accessory structure, if you put a pool in
16 that's a structure. So...
17 Q. Was it your understanding that in Monte Sereno,
18 concrete patios would be counted as impervious
19 structure?
20 A. Yes.
21 Q. And also was it your understanding in Monte
22 Sereno that driveways would be counted as impervious
23 structure?
24 A. Yes.
25 Q. Did the architect tell you that there was
Page 0038
1 sufficient impervious coverage allowable for another
2 800 square feet?
3 A. To the best of my recollection, yes.
4 Q. Did you ever tell Lou Rae Kagel or anyone at
5 Coldwell Banker that the city had already approved an
6 additional 800 square foot structure for the property?
7 A. No.
8 Q. Do you know where that came from?
9 MR. KOSS: Object as mischaracterizing what the
10 brochures actually cite. It doesn't say anything about
11 approval.
12 MR. THOMAS: And vague and ambiguous.
13 THE WITNESS: The question is --
14 MR. GLASPY: She'll read back the question, but
15 before she does I want to caution you not to guess or
16 speculate. He's asking for your own specific knowledge.
17 (Record read: "Question: Did you ever tell
18 Lou Rae Kagel or anyone at Coldwell Banker that the city
19 had already approved an additional 800 square foot
20 structure for the property?
21 "Answer: No.
22 "Question: Do you know where that came from?")
23 MR. GLASPY: Do you know where that came from?
24 THE WITNESS: No.
25 MR. GLASPY: Without guessing or speculating.
Page 0039
1 THE WITNESS: No.
2 BY MR. MINOLETTI:
3 Q. Do you ever recall a problem where Mr. Simpson
4 was at the property and moving things in and you were
5 upset that he was moving things in?
6 A. Yes, now that you mentioned it. Not upset,
7 just it's -- okay, yes.
8 So I remember that he was moving things in, and
9 he hadn't -- and I had been communicating with Lou Rae
10 and we had been talking about, well, why isn't this guy
11 signing off, why won't he buy -- if he wants it, he
12 won't -- but he hadn't signed -- he hadn't closed.
13 And so that got to be a little bit tense,
14 because I would have been, actually I would have never
15 minded that he moved things in before, during or after,
16 whatever, except that he had dragged it on quite a bit
17 and not closed the property.
18 And so then I noticed things are in there and
19 then I had some things missing. I had, there was a
20 really nice vacuum cleaner that was missing and things
21 like that. But anyway, so all I remember was maybe
22 talking to Lou Rae, I would have never talked with him
23 directly, I don't believe. I don't think I saw him or
24 anything. I just saw stuff in the house and called Lou
25 Rae and said, "Tell him to buy it if he wants to move
Page 0040
1 into it," you know.
2 Q. Do you remember when that was?
3 A. Right around, you know, we were supposed to
4 close, supposed to close, supposed to close, then the
5 stuff showed up, and -- I don't know. I mean, it was
6 maybe a few days before he finally did sign off and
7 close.
8 Q. After the close of escrow, did you turn the
9 keys over to anyone?
10 A. Gosh, I don't remember. I'm assuming I did,
11 but...
12 Q. I have some documents to show you.
13 A. Okay.
14 (Whereupon, Exhibit 106 was marked for
15 identification.)
16 BY MR. MINOLETTI:
17 Q. Exhibit 106 is a PRDS Exclusive Authorization
18 and Right to Sell, and it is three pages.
19 A. Okay.
20 MR. GLASPY: He'll ask you a question about the
21 document.
22 BY MR. MINOLETTI:
23 Q. Do you recognize that document?
24 A. Yes, I do recognize it.
25 Q. And whose initials are down at the bottom?
Page 0041
1 A. They're mine.
2 Q. And on the second page, it appears to be, is
3 that your signature?
4 A. Oh, it looks like I didn't sign it, doesn't it?
5 Wouldn't I have signed it right there? That's my
6 written name.
7 Q. Just printed.
8 A. Yes.
9 MR. KOSS: Excuse me, that's your printing,
10 that is your handwriting?
11 THE WITNESS: Yes, that is my handwriting.
12 BY MR. MINOLETTI:
13 Q. And it's dated March 19, 2001?
14 A. Mm-hmm.
15 Q. Yes?
16 A. No -- wait. Well, there's --
17 MR. GLASPY: The date of the --
18 THE WITNESS: The date, yeah, okay.
19 BY MR. MINOLETTI:
20 Q. The date you signed it.
21 A. Okay, mm-hmm.
22 Q. Was Stonehenge Properties in existence at the
23 time that you signed this?
24 A. Oh, yeah. They owned the property from the
25 beginning. It was bought by -- the tear down was bought
Page 0042
1 by Stonehenge.
2 (Whereupon, Exhibit 107 was marked for
3 identification.)
4 BY MR. MINOLETTI:
5 Q. Exhibit 107 is the PRDS Real Estate Purchase
6 Contract, and this is dated August 15, 2001, and it's
7 six pages.
8 Do you recognize that?
9 A. No.
10 (Whereupon, Exhibit 108 was marked for
11 identification.)
12 BY MR. MINOLETTI:
13 Q. Exhibit 108 is a disclosure dated March 19,
14 2001, and it's pages 2 through 6, and I'm not sure where
15 page 1 ended up.
16 MR. KOSS: Do you have it on the back of 107?
17 MR. GLASPY: He does.
18 MR. KOSS: That's part of 107.
19 THE WITNESS: Yes, I recognize this.
20 BY MR. MINOLETTI:
21 Q. On the first page, at the very bottom, are
22 those your initials?
23 A. Mm-hmm.
24 MR. GLASPY: Yes?
25 THE WITNESS: Yes.
Page 0043
1 BY MR. MINOLETTI:
2 Q. And is it you that filled out this form?
3 A. Yes.
4 Q. So where the subject property address is
5 written, that's in your handwriting?
6 A. Yes.
7 Q. As well as the date?
8 A. Yes.
9 Q. And then you put the check marks in the boxes
10 on the form?
11 A. Yes.
12 Q. Down at the bottom of the first page under
13 Electronic Systems/Networks/Devices, item h, the
14 question is: Any high-speed data line service? And you
15 checked the box no.
16 A. Correct.
17 Q. Right? Was it your understanding that the
18 house was not equipped with high-speed data line
19 service?
20 A. Yeah, that's what I said. Yes.
21 MR. GLASPY: You want her to explain what she
22 means by that?
23 THE WITNESS: No, forget it.
24 BY MR. MINOLETTI:
25 Q. And on the last page you signed, that's your
Page 0044
1 signature on page 6?
2 A. Yes, sir.
3 (Whereupon, Exhibit 109 was marked for
4 identification.)
5 BY MR. MINOLETTI:
6 Q. Exhibit 109 is a March 7 cover letter to you
7 from Tori at The Property Network and an outline of the
8 marketing plan for Blanchard.
9 A. Okay.
10 Q. It's two pages.
11 A. Okay.
12 Q. Now, how did you become involved with The
13 Property Network, this company?
14 A. I went to high school with Tim O'Halloran who
15 is the agent here, and Tori O'Halloran was one of my
16 best friends in high school, and they're now a real
17 estate team. And I knew I would be listing, or that
18 Stonehenge would be listing the property on Blanchard,
19 and so we contacted them and Lou Rae, and whoever
20 knows -- what others, about talking about it, yes.
21 Q. Did you give them information on the property?
22 A. They came and walked through, took a look at
23 it, thought about listing it. We had thought about
24 listing it with them.
25 Q. And you decided not to list with them, I take
Page 0045
1 it?
2 A. Yes.
3 Q. Have you ever listed for sale any of the
4 properties you've sold with The Property Network?
5 A. No.
6 Q. Did they send you photos of the property?
7 A. Maybe. They might have. I'm not sure.
8 Q. On the second page, it's indicated that
9 1100 postcards would be sent to all of Monte Sereno.
10 Was that ever done?
11 A. No. They didn't list the house.
12 Q. Was anything listed on the second page to your
13 knowledge ever done by The Property Network?
14 MR. GLASPY: In other words, brochure,
15 postcards or --
16 THE WITNESS: No, they wouldn't have done any
17 of these things. I was looking at them to make sure
18 there wasn't something on there that might have been,
19 like a marketing plan or something, which they might
20 have written but not keep it, in the event that we
21 didn't even list with them.
22 BY MR. MINOLETTI:
23 Q. So the house was never listed with them, ever.
24 A. Right, to the best of my recollection.
25 Q. Other than the letter and the list behind it,
Page 0046
1 did The Property Network provide you with anything else
2 in writing?
3 A. Oh, probably, yes, I would imagine that --
4 well, in writing -- I don't recall, but it wouldn't
5 surprise me.
6 Q. Did you ever discuss with either Tim O'Halloran
7 or Tori O'Halloran the features of the Blanchard
8 property?
9 A. They came and looked at the house so they would
10 have made their own determination.
11 Q. But you don't recall any specific discussions
12 you've had with them?
13 A. No.
14 (Whereupon, Exhibit 110 was marked for
15 identification.)
16 BY MR. MINOLETTI:
17 Q. Exhibit 110 is a brochure with a photo on the
18 cover of the Blanchard property and then what was on the
19 reverse of this was a list of the specifications or
20 features of the property. The front would have been in
21 color on the brochure.
22 Do you recognize this.
23 A. Not specifically, no.
24 Q. Do you know where Lou Rae Kagel got the
25 information that the main home has approximately
Page 0047
1 4,400 square feet of living space?
2 A. No, I don't.
3 Q. Similarly, do you know where Lou Rae Kagel got
4 the information that states that the guest house is
5 equally elegant with approximately 700 square feet of
6 living space?
7 A. No.
8 Q. Turning to the second page, do you know where
9 Lou Rae Kagel would have obtained the information that
10 the home had three zones of heating and
11 air-conditioning?
12 A. It may have -- it seems to me -- I'm trying to
13 remember exactly what -- that would have been -- it's
14 hard -- that would have been something I would have
15 said, probably.
16 MR. GLASPY: I do not want you to guess or
17 speculate. He's asking you if you have a specific
18 recollection.
19 THE WITNESS: I have no specific memory of any
20 of this stuff, I'm sorry.
21 MR. GLASPY: Then that's your answer.
22 THE WITNESS: I wish I did.
23 BY MR. MINOLETTI:
24 Q. Did you ever tell Lou Rae Kagel that the home
25 had three zones of heating and air-conditioning?
Page 0048
1 MR. GLASPY: It's yes, no, or I don't know.
2 THE WITNESS: Okay. I don't know.
3 MR. GLASPY: Or I don't recall.
4 THE WITNESS: I don't recall.
5 BY MR. MINOLETTI:
6 Q. Did you ever tell Lou Rae Kagel that the home
7 had fiberoptics for better communication?
8 A. No, I did not.
9 Q. Did you ever tell Lou Rae Kagel that the city
10 says space in back sufficient for additional 800 square
11 foot structure?
12 A. No, I did not.
13 Q. Did you ever tell anyone that the city says
14 space in back sufficient for an additional 800 square
15 foot structure?
16 A. No.
17 Q. Did you ever tell anyone that the home had
18 fiberoptics?
19 A. No.
20 (Whereupon, Exhibit 111 was marked for
21 identification.)
22 BY MR. MINOLETTI:
23 Q. Exhibit 111 is another brochure or magazine ad,
24 I'm not sure which, but it's Bates stamped K161.
25 Did you ever tell Lou Rae Kagel that there was
Page 0049
1 room for a pool and/or other building on the Blanchard
2 property?
3 A. No.
4 Q. Did you ever tell anyone that there was room
5 for a pool on the Blanchard property?
6 A. No.
7 Q. Did you ever tell anyone that there was room
8 for a pool and/or another building on the Blanchard
9 property?
10 A. No.
11 Q. Going back to Exhibit 110, the brochure before
12 this, had you seen that brochure prior to the sale of
13 the property to Mr. Simpson?
14 A. Not specifically, no. I saw brochures on the
15 island, I didn't -- I don't know what was where.
16 Q. None of these brochures were ever presented to
17 you for proofreading?
18 A. No.
19 Q. In the other houses that you've sold, have you
20 ever proofread any of the marketing materials used by
21 the agents?
22 A. No.
23 Q. Were you ever provided a copy of the multiple
24 listing information that was placed with the Multiple
25 Listing Service for the Blanchard property?
Page 0050
1 A. Not that I recall.
2 (Whereupon, Exhibit 112 was marked for
3 identification.)
4 BY MR. MINOLETTI:
5 Q. Exhibit 112 is a list of features and, it's my
6 understanding, a long brochure that is nine pages long.
7 Do you recognize that brochure?
8 A. I remember one that looked like this in a
9 drawer in the kitchen, but I can't say if it's the same
10 one or not. I mean, it was -- no, I can't say that I
11 recall this particular brochure.
12 Q. Now, was this brochure ever given to you for
13 proofreading?
14 A. No.
15 Q. Did you ever, before this property was sold,
16 type up any list of features or amenities for the
17 Blanchard property?
18 A. Not that I recall.
19 Q. You spoke earlier about a delay in the closing
20 of the property.
21 A. Mm-hmm.
22 Q. Do you recall the reason why there was a delay
23 in the closing?
24 A. No.
25 ///
Page 0051
1 (Whereupon, Exhibit 113 was marked for
2 identification.)
3 BY MR. MINOLETTI:
4 Q. Exhibit 113 is an email, it's actually from
5 Lou Rae Kagel to Douglas Rea. Do you know who
6 Douglas Rea is?
7 A. Yes.
8 Q. Have you ever met him?
9 A. I'm not sure if I met him in -- I probably met
10 him at an open house somewhere at a house he's had
11 listed or something, but I have met him. I might have
12 met him once during this transaction, I'm not sure.
13 Q. Did you ever have any discussions with
14 Douglas Rea about the features of the Blanchard
15 property?
16 A. Not that I recall.
17 Q. Did you ever tell Lou Rae Kagel that it was not
18 your intention to put air-conditioning in the guest
19 house?
20 A. Yes.
21 Q. I'll show you Exhibit 113. Did you consider it
22 to be an upgrade to put air-conditioning in the guest
23 house?
24 A. I don't know if was an upgrade or something we
25 ended up doing.
Page 0052
1 Q. Did you end up, or Stonehenge end up, paying
2 for the air-conditioning in the guest house?
3 A. If we -- I believe that there was participation
4 from the agents.
5 (Whereupon, Exhibit 114 was marked for
6 identification.)
7 BY MR. MINOLETTI:
8 Q. Exhibit 114 is an addendum to the contract
9 dated September 12, 2001, with respect to a release of a
10 set of plans for the home.
11 Do you recognize that?
12 A. Yes, or a document very much like it.
13 Q. Do you recall who prepared this addendum?
14 A. Lou Rae.
15 Q. The changes were made -- back up. The changes
16 were made during the construction of the Blanchard house
17 and guest house such that it doesn't match the plans,
18 correct?
19 A. Not necessarily.
20 Q. This addendum says, "Changes have been made
21 during construction therefore sizes and specifications
22 have been changed and the actual house may not match the
23 set of plans supplied."
24 Is that not true?
25 A. May not match the plans... I think the word
Page 0053
1 "may" could have been used more often in there, but I
2 think you just always, you know --
3 MR. GLASPY: I guess the better question is, do
4 you know if the plans matched the as-built house?
5 THE WITNESS: I believe the plans very closely
6 match the house. But, you know, inches and things, I
7 don't know. And I wouldn't want to be -- that's why we
8 let people know, to protect against, in case there is a
9 change, you know.
10 I had a house that I built where there were
11 significant changes, and we actually did as-built plans
12 afterwards because of it.
13 (Whereupon, Exhibit 115 was marked for
14 identification.)
15 BY MR. MINOLETTI:
16 Q. Exhibit 115 is a letter from Lou Rae Kagel to
17 Douglas Rea dated September 17, 2001.
18 Have you ever seen this letter?
19 A. No.
20 Q. Do you recall who your construction lender was?
21 A. Heritage.
22 Q. And what were you incurring in terms of costs
23 or extra fees --
24 A. The loans are typically 12-month construction
25 time frame, and every -- then there's, we have to go
Page 0054
1 back and ask to be extended, so we negotiate extensions
2 and so forth. But I recall it was approximately $5,000
3 each time we extended it.
4 Q. Was the construction loan taken out in the name
5 of Stonehenge Properties?
6 A. I believe so, yes.
7 (Whereupon, Exhibit 116 was marked for
8 identification.)
9 BY MR. MINOLETTI:
10 Q. Exhibit 116 is a fax letter to Lynn and Jim
11 from Lou Rae dated September 20, 2001.
12 A. Okay. So this was from Lou Rae.
13 Q. Do you recognize that?
14 A. Let me read it for a minute. I don't recall
15 it, but --
16 Q. Okay.
17 (Whereupon, Exhibit 117 was marked for
18 identification.)
19 BY MR. MINOLETTI:
20 Q. Exhibit 117 is a draft copy of a letter that
21 Lou Rae was going to send to the buyer.
22 Do you recognize that?
23 A. No.
24 Q. Do you have an email address, obrienproperties@
25 msn.com?
Page 0055
1 A. No.
2 Q. Did you ever have that email address?
3 A. We may have at that time. I'm trying to -- I
4 thought it was stonehengeproperties@msn.com, but we may
5 have just moved it from that to Stonehenge, yeah.
6 Q. Did you ever tell Lou Rae Kagel that the delay
7 was costing you $500 per day for each day that escrow
8 didn't close?
9 A. Oh. Probably. It cost us at least that, to
10 carry the whole cost of the loan daily as well as any
11 extension costs.
12 Q. How much was the loan?
13 A. I'd have to look up exactly, but I mean, you
14 know, if the house was valued at two point whatever
15 million, and you figure interest on that, because if
16 somebody else had bought it, it wouldn't have had our
17 money and been done, so that's, you know, one other way
18 of looking at it.
19 Q. Did Heritage actually charge you any money for
20 the --
21 A. Absolutely.
22 Q. -- delays? Do you recall what they charged
23 you?
24 A. Yeah. There were two extensions of $5,000
25 apiece, whether or not they were specifically related
Page 0056
1 to, or whether or not both of them were related to this
2 particular delay, and then we of course paid interest
3 every day that we carried it. And there was stress and
4 tension and we were late.
5 (Whereupon, Exhibit 118 was marked for
6 identification.)
7 BY MR. MINOLETTI:
8 Q. Exhibit 118 is a fax cover sheet and then I'm
9 not sure what was supposed to be included with it, but
10 what I have is K3 and K311, two pages.
11 The fax cover sheet is dated September 25th,
12 2001. It says it's including five pages but I believe
13 that the email dated the same day is one, at least one
14 of the pages that was supposed to be attached.
15 Do you recall receiving the email?
16 A. This email, it wasn't sent to me, was it?
17 Q. No.
18 A. I'm sorry.
19 Q. It appears it was faxed to you at some point.
20 A. Oh, okay, I see that.
21 MR. GLASPY: What he's asking you is as you sit
22 here today do you recall having received this fax with
23 the attached email?
24 THE WITNESS: Let me read it. Yes.
25 BY MR. MINOLETTI:
Page 0057
1 Q. Do you recall seeing Mr. Simpson at the house
2 on September 24, 2001?
3 A. I do not.
4 Q. Do you recall seeing Mr. Simpson take a hose
5 and fill a fountain in the backyard?
6 A. I don't.
7 (Whereupon, Exhibit 119 was marked for
8 identification.)
9 BY MR. MINOLETTI:
10 Q. Exhibit 119 is a fax cover sheet, it's dated
11 September 25, 2001, and it's directed to Jim O'Brien
12 from Lou Rae.
13 Do you recognize that?
14 A. No. My husband is not a licensed contractor.
15 No, I don't recall this, no.
16 (Whereupon, Exhibit 120 was marked for
17 identification.)
18 BY MR. MINOLETTI:
19 Q. Exhibit 120 appears to be a fax from James K.
20 O'Brien to Lou Rae Kagel dated September 26, 2001.
21 A. Okay. So -- sure. What's the question?
22 Q. Do you recognize this document?
23 A. No.
24 Q. Up at the top where it has the fax
25 identification, it says, from SSL, Inc. Do you know who
Page 0058
1 that is or what that is?
2 A. That would have been the company where my
3 husband worked at the time.
4 Q. What did your husband --
5 A. An electronics company.
6 Q. And what did your husband do at SSL?
7 A. Sales manager or something like that.
8 Q. What type of electronics did SSL sell or
9 manufacture?
10 A. My husband's worked in the chip industry for
11 30 years.
12 (Whereupon, Exhibit 121 was marked for
13 identification.)
14 BY MR. MINOLETTI:
15 Q. Exhibit 121 is a fax cover sheet to Lynn
16 O'Brien from Lou Rae Kagel dated September 26, 2001.
17 A. Okay, this sounds familiar.
18 Q. Do you know what the reference is of where Lou
19 Rae Kagel states here, "I feel personally and
20 professionally attacked"?
21 MR. GLASPY: I don't understand that question.
22 You're asking her to speculate as to what Lou Rae was
23 thinking?
24 BY MR. MINOLETTI:
25 Q. Not what she's thinking. What incident --
Page 0059
1 THE WITNESS: What led up to that?
2 MR. GLASPY: Oh, objection.
3 THE WITNESS: Probably.
4 MR. GLASPY: Is that what the question is, what
5 led up to that?
6 BY MR. MINOLETTI:
7 Q. Her understanding of what happened here.
8 A. Okay.
9 MR. KOSS: Objection, speculation, lacks
10 foundation.
11 THE WITNESS: Do I still answer?
12 BY MR. MINOLETTI:
13 Q. Yes.
14 A. Okay. Things got uncomfortable at the end. We
15 were worried about, it was costing us a lot to carry the
16 house. He was not following through, we weren't sure if
17 he ever was, what he was thinking, why he wasn't doing
18 it, because even though he talked about the 9/11
19 situation as being an influence, we knew that money was
20 going back and forth across the country, things were
21 being funded, things were closing, things were
22 happening.
23 We were not sure of that -- it didn't make
24 sense, and we believed that he was waiting until his
25 goods arrived from the UK and that the he was either
Page 0060
1 just delaying for that reason or just maybe not going to
2 close at all, and we weren't sure if we were getting
3 jerked around or whatever and we were putting a lot of
4 pressure on Lou Rae to represent us, to -- we really
5 asked her for about three or four weeks to cancel the
6 sale. We wanted her to get rid of this buyer.
7 And there were a few reasons we didn't, you
8 know, we weren't comfortable, he wasn't coming through
9 and meanwhile we weren't able to start trying to sell
10 the house to somebody else. And we could have put
11 alternate financing on it and just gone forward with it,
12 but because he said he was about to close we didn't set
13 up the right kind of financing.
14 If he had just said -- if we had known what was
15 going on -- we wouldn't have been late at all if we did
16 not count on him closing at a certain date. We didn't
17 put alternative financing in place because he said he
18 was going to close on a certain day.
19 So then we got into a very ugly situation
20 because it didn't happen. So it put a lot of additional
21 pressure, and I probably left Lou Rae a not very nice
22 email, voicemail -- not email -- I probably was very --
23 MR. MINOLETTI: Here we go, are you
24 speculating?
25 THE WITNESS: No. I recall this tension.
Page 0061
1 MR. GLASPY: I understand the tension, but when
2 you start talking in terms of probably --
3 THE WITNESS: Well, Jim sent her that letter.
4 It was getting uncomfortable and we asked her directly
5 to cancel the sale, and she kept prodding us along to
6 keep this buyer.
7 You can read it here, you know, "your
8 reputation will be impacted," and stuff like that.
9 BY MR. MINOLETTI:
10 Q. Your reputation as a builder?
11 A. Well, yeah, right, our first job, yeah.
12 Q. Do you have plans for Stonehenge Properties to
13 build other homes in the future?
14 A. No. We're pretty, we're just kind of changing
15 our course.
16 (Whereupon, Exhibit 122 was marked for
17 identification.)
18 BY MR. MINOLETTI:
19 Q. Exhibit 122 is actually a handwritten note from
20 Lou Rae Kagel's file which is Bates stamped K276.
21 Did you ever tell Lou Rae Kagel that
22 Mr. Simpson was at the house harassing you?
23 A. No. What I -- this is probably in reference to
24 the day that they came to the door, he and his wife, and
25 wanted to come in and, or they didn't actually, they
Page 0062
1 just stood at the door and acted like nothing had
2 happened, and I'm like -- I'm recalling now the
3 conversation -- I mentioned that I didn't know what was
4 going on and I didn't -- they said that they informed me
5 that they had just signed off or yesterday had signed
6 off and it was going to close, and I said, "I hadn't
7 heard that, I don't know anything, there have been so
8 many delays." I said, "If that's true, I'll go ahead
9 and get my furniture out of the house."
10 And I said I actually -- I had a kid coming
11 later who was going to be picking up something at the
12 house too, that's why I think I was there. And they
13 said, "You can leave the furniture if you want."
14 I said, "No, I think I'll take my furniture."
15 But anyway -- sorry.
16 Q. Do you remember anything else about that
17 discussion?
18 A. I really don't. I probably called Lou Rae and
19 told her that they came by.
20 Q. Did Mr. and Mrs. Simpson harass you when they
21 were at the house earlier that day that you recall?
22 A. I don't recall.
23 Q. Do you recall telling Lou Rae that the code had
24 changed in Monte Sereno such that there was a different
25 calculation for what impervious structure was?
Page 0063
1 A. Months after we were all into this lawsuit, I
2 said that I was aware that the codes had changed
3 dramatically, and basements now counted towards square
4 footage where they didn't previously, and height
5 restrictions changed, and that I'm not sure what
6 impervious coverage was at that point.
7 (Whereupon, Exhibit 123 was marked for
8 identification.)
9 BY MR. MINOLETTI:
10 Q. Exhibit 123 is again from Lou Rae Kagel's file,
11 and it's just a typed-up note referencing the contract
12 on Blanchard.
13 Here she notes that you did an open house on
14 two different days. Do you recall that?
15 A. I don't recall that.
16 (Whereupon, Exhibit 124 was marked for
17 identification.)
18 BY MR. MINOLETTI:
19 Q. Did you ever tell Lou Rae to advise
20 Mr. Simpson's real estate agent that he was out of
21 contract and that you were just going to seek damages?
22 A. I probably -- I said that he's out of contract
23 and we've got to -- and is he going to do this or not,
24 and I was putting pressure on her at that time.
25 I would have never -- I don't imagine me saying
Page 0064
1 anything about seeking damages; however, I read that in
2 my husband's letter.
3 Q. Let me just show you Exhibit 124, it's a note
4 from Lou Rae to Douglas dated September 26, 2001. At
5 the top it says three pages but I have no idea what
6 might have gone with it.
7 Have you ever seen that?
8 A. No.
9 (Whereupon, Exhibit 125 was marked for
10 identification.)
11 BY MR. MINOLETTI:
12 Q. Exhibit 125 is a drawing for the Blanchard
13 property that came out of the records from your
14 architect, James Stroupe, and it's page 81.
15 Do you recognize that drawing?
16 A. Do I recognize this one? No. There are lots
17 of revs. Not offhand, no.
18 Q. And revs are revisions?
19 A. Yeah. Yes.
20 Q. In this there's drawn in a sport court, do you
21 see that?
22 A. Mm-hmm. Yes, I do.
23 Q. And also a spot for a swimming pool?
24 A. Yes.
25 Q. So initially that was the idea, to install a
Page 0065
1 sport court and a pool?
2 A. We would not have done that, no.
3 Q. When you say we would not have done that, you
4 would have left that to a buyer?
5 A. This was, would have been very preliminary in
6 the design phase, where we are testing the lot to kind
7 of see what we can get out of it. And there was some
8 thoughts about it, like for instance, we put a vineyard
9 over in this other area at the end of the day instead of
10 other things.
11 I would have personally never put a sport court
12 in there. When I originally talked with the architect,
13 I probably gave him some direction about guest house,
14 main house, pool, sport court, that kind of thing, so we
15 could see how it might look and lay out and he would
16 know if it was allowable or not.
17 Q. Okay. Do you recall other revisions to this
18 particular drawing?
19 A. Yes. I don't recall, number 14 didn't look, I
20 don't think it ended up being turreted, but I'm not
21 sure. There are a lot of 14s, sorry.
22 This little turret on the back, it doesn't
23 really show the driveway in the front. It shows a big
24 long walkway, which didn't occur. The guest house, I
25 think, was a different shape than that at the end of the
Page 0066
1 day.
2 That's the best that I can recall of how things
3 came out differently at the end.
4 (Whereupon, Exhibit 126 was marked for
5 identification.)
6 BY MR. MINOLETTI:
7 Q. Exhibit 126 is Submittal Requirements for Site
8 and Architectural Review.
9 Do you recognize that at all?
10 A. No.
11 Q. Item 2 there indicates that there would be four
12 sets of plans of a certain size and then two sets of
13 reduced plans. Do you recall seeing any of those plans?
14 A. Those go to the council members, I believe, and
15 for the, when we to go a hearing to see if we can get,
16 you know, we can build. So I probably would have seen
17 them at that meeting.
18 Q. Did you actually go to the meeting?
19 A. Yes, I did.
20 Q. Did you go to more than one for the Blanchard
21 property?
22 A. I don't recall if there was more than one, I'm
23 sorry, I don't remember.
24 Q. One of the requirements also indicated on this
25 document is calculation of the allowable and proposed
Page 0067
1 impervious coverage figure. Do you see that?
2 A. Yes.
3 Q. Do you know if that was done?
4 A. Yes, it would have been done on the cover sheet
5 of the plans.
6 (Whereupon, Exhibit 127 was marked for
7 identification.)
8 BY MR. MINOLETTI:
9 Q. Exhibit 127 is a City of Monte Sereno Agenda
10 for the Site and Architecture Committee dated
11 September 1, 1999. And for the Blanchard Drive
12 property, it says, O'Brien/Stroupe. And Stroupe is the
13 architect, correct?
14 A. Mm-hmm.
15 Q. Yes?
16 A. Yes.
17 Q. And at that point you were seeking approval of
18 a 5,070 square foot one-story house and a 900 square
19 foot second dwelling unit.
20 A. Yes.
21 Q. And we know that those weren't built that way,
22 correct, as far as square footage.
23 A. Right. Yes.
24 Q. And do you recall why?
25 A. No.
Page 0068
1 Q. Do you recall, is this the hearing that you
2 recall attending?
3 A. Yes. Sometimes they'll make, they make
4 suggestions of changes that, revs that you have to do.
5 I don't know offhand what happened there.
6 (Whereupon, Exhibit 128 was marked for
7 identification.)
8 BY MR. MINOLETTI:
9 Q. Exhibit 128 is a cover letter from James
10 Stroupe, Architect, to Lynn and Jim O'Brien dated May 9,
11 1999, along with -- I guess it's just by itself, just
12 one page.
13 Do you recognize that?
14 A. Yes.
15 Q. It starts out in the letter saying, "Thank you
16 very much for giving me the opportunity to work with you
17 again." And we already talked about the one property,
18 was that the Capitola house?
19 A. Yes -- no, no, no, I'm sorry, no. It was the
20 Villa Oaks.
21 Q. Villa Oaks. Was that the only other time you
22 worked with this architect?
23 A. Best I can recall, yes.
24 Q. And he references your plans to build a 4,000
25 square foot single-story home. Was that your plan at
Page 0069
1 least at the outset?
2 A. Very little known. I mean, when you start
3 these, that you buy a lot, we don't know what we can
4 really do with it. But I said I need an architect for
5 this lot and I probably -- yes.
6 (Whereupon, Exhibit 129 was marked for
7 identification.)
8 BY MR. MINOLETTI:
9 Q. Exhibit 129 is entitled Agreement Between Owner
10 and Architect dated May 25, 1999, and it is five pages.
11 Do you recognize that?
12 A. Yes.
13 Q. Is that your signature on the last page?
14 A. Yes.
15 Q. On the first page, the first paragraph,
16 actually second paragraph, it states, "The residence
17 shall be built as a speculative home and be
18 approximately 4,000 square feet, 4-bedroom, 3-1/2 bath
19 single story with an attached three-car garage."
20 Did you have some idea or envision as to what
21 you were going to have the architect develop here?
22 A. No.
23 Q. And then under Schematic Design it says,
24 "Prepare 1/8-inch scale design sketches for review and
25 approval by Owner to include Plot Plan, Floor Plans,
Page 0070
1 Roof Plan, and four Exterior Elevations."
2 Do you recall receiving that?
3 A. Yes.
4 Q. Would you and your husband be the ones doing
5 the review and the approval of the plans and sketches
6 from the architect?
7 A. No.
8 Q. Who would do that?
9 A. That was my job.
10 Q. And again, those sketches, design sketches and
11 related documents, those would have been disposed of or
12 destroyed at this point?
13 A. Yes, absolutely, 'cause they weren't even the
14 final -- yeah.
15 (Whereupon, Exhibit 130 was marked for
16 identification.)
17 BY MR. MINOLETTI:
18 Q. Exhibit 130 is a Letter of Authorization
19 authorizing James Stroupe as the architect to act on
20 behalf of the owners.
21 Do you recognize that?
22 A. Yes.
23 Q. And is that your signature?
24 A. Yes.
25 Q. The address here, West Campbell Avenue, was
Page 0071
1 that your residence?
2 A. Yes. It was a condominium I was renting while
3 we were building another house.
4 Q. That was the temporary place.
5 A. No, it was another temporary. The first one
6 was a temporary we owned; this was just a condo we were
7 renting during another time.
8 (Whereupon, Exhibit 131 was marked for
9 identification.)
10 BY MR. MINOLETTI:
11 Q. Exhibit 131 is a list of items needed for the
12 Heritage Bank of Commerce to apply for construction
13 financing.
14 Do you recall having this --
15 A. No, I don't recall, but...
16 Q. Was the financing done in the name of the
17 corporation or --
18 A. It was in the name of the corporation.
19 (Whereupon, Exhibit 132 was marked for
20 identification.)
21 BY MR. MINOLETTI:
22 Q. Exhibit 132 is a list apparently from the city
23 of Monte Sereno that was sent to your architect, and
24 it's dated November 16, 1999.
25 Do you recognize this at all?
Page 0072
1 A. No.
2 Q. Do you know if corrected plans were ever
3 submitted to the city of Monte Sereno for further review
4 on the Blanchard property?
5 A. I know that Monte Sereno would have never given
6 us to permission to build or permits unless this had
7 been addressed, yes.
8 Q. Item number 6 at the bottom of the page
9 references the square footage of the slab at the front
10 of the structure, and goes on to state, "I assume that
11 there is no slab at the rear end area identified as a
12 'courtyard' and the only concrete in this area will be
13 for the landings at the doors."
14 Were you ever informed by the architect that
15 adding concrete patios would increase the impervious
16 structure such that it would be over the allotment for
17 this lot?
18 A. No.
19 (Whereupon, Exhibit 133 was marked for
20 identification.)
21 BY MR. MINOLETTI:
22 Q. Exhibit 133 is a letter from the City of Monte
23 Sereno Planning Department dated November 19, 1999.
24 Do you recognize this at all?
25 A. No.
Page 0073
1 Q. Do you know if a survey was done verifying the
2 lot size and given to the city?
3 A. Yes.
4 Q. Do you know who did the survey?
5 A. Not offhand, no.
6 Q. Do you have any records that relate to the
7 survey being done?
8 A. Not at this point.
9 Q. Do you know if there was a breakdown of the
10 impervious and structural coverage calculations given to
11 the city?
12 A. No, I don't know personally.
13 (Whereupon, Exhibit 134 was marked for
14 identification.)
15 BY MR. MINOLETTI:
16 Q. Exhibit 134 again are notes from Lou Rae
17 Kagel's file of a conversation she had with you at
18 Courtside November 17, 2005. Do you recall seeing her
19 at the Courtside facility?
20 A. Yes, they're at Courtside a lot, yeah.
21 Q. Do you recall talking about this case when you
22 were at the Courtside facility with Lou Rae Kagel?
23 A. In passing, yes.
24 Q. Did you tell Lou Rae Kagel that the 800 square
25 foot additional structure which is the subject of this
Page 0074
1 case could be an arbor?
2 A. That's what I always said, yeah. I mean, it's
3 a -- wait. Maybe I don't understand that.
4 MR. GLASPY: Do you recall telling that to
5 Lou Rae at Courtside?
6 THE WITNESS: I don't remember that, no.
7 BY MR. MINOLETTI:
8 Q. Do you recall telling that to anyone at any
9 point?
10 A. The way you've stated it, I recall discussing
11 with a lot of people including Lou Rae and I think with
12 Ralph that in Monte Sereno, they were very careful about
13 these kinds of things, and impervious coverage and
14 structures, that even an arbor was counted as an
15 accessory structure and pool was applied towards
16 impervious coverage, all that kind of stuff, and that we
17 had a limited amount left.
18 Q. And it was your understanding that you had
19 800 square feet left?
20 A. Yes.
21 Q. Even after --
22 A. Thereabouts, yes, uh-huh. That was my belief
23 always, yeah.
24 MR. THOMAS: Did you finish your question, even
25 after what?
Page 0075
1 BY MR. MINOLETTI:
2 Q. Even after all of the concrete work was done,
3 the additional structure that was installed?
4 A. Yes.
5 Q. Was it ever your understanding that you could
6 have a swimming pool in addition to an 800 square foot
7 structure on the property?
8 A. No.
9 Q. Did you tell Lou Rae Kagel that fiberoptics
10 were actually in the house?
11 A. No.
12 (Whereupon, Exhibit 135 was marked for
13 identification.)
14 BY MR. MINOLETTI:
15 Q. Exhibit 135 is part of an article that was run
16 in a local newspaper, and this is actually printed off
17 the Internet. Just going to ask if you've seen that
18 before.
19 A. Full of misquotes, but yes.
20 Q. I was going to ask you if this article is
21 accurate.
22 A. No.
23 Q. Okay. What's inaccurate?
24 MR. GLASPY: You want her to start at the top
25 and work all the way through or --
Page 0076
1 BY MR. MINOLETTI:
2 Q. Or is all of it? Let me ask you this so we
3 don't cover things that I have no interest in.
4 A. Okay. I went to Los Gatos High, things like
5 that. Okay.
6 Q. Here it says you worked for Bay Networks and
7 Synopsis in the past?
8 A. No, that's actually, I worked for Synoptics.
9 Q. And it says AccessLand here but I believe you
10 said AccessLan, L-a-n?
11 A. Right, L-a-n. My husband has not retired. He
12 works.
13 Q. And it also says?
14 MR. KOSS: It says he hopes to retire.
15 THE WITNESS: He's still hoping.
16 BY MR. MINOLETTI:
17 Q. This also says you have bought and sold real
18 estate since you were 19.
19 A. Right. Yes. I bought a condo in Fremont when
20 I was about 21, lived there for many, many years, and
21 then I bought a house that I lived in for years in
22 San Jose that was like with my previous husband, I mean,
23 I don't know -- and then that was basically it. That's
24 the real estate I've been buying and selling for years.
25 Q. And then it says today she and her husband own
Page 0077
1 five properties in the West Valley.
2 A. That's wrong. Have owned, probably.
3 Q. Had you seen that article before?
4 A. I remember my sister was on the cover when it
5 came out 'cause she was building a house for her and her
6 family at the same time. She was not happy with the
7 picture.
8 (Whereupon, Exhibit 136 was marked for
9 identification.)
10 BY MR. MINOLETTI:
11 Q. Exhibit 136 is two pages, looks like a
12 handwritten cover sheet and then a letter from James
13 Stroupe, Architect, dated June 29, 2000, to the City of
14 Monte Sereno.
15 A. Okay. I don't know anything about this.
16 Q. You've not seen this before, I take it.
17 A. Oh, okay, yeah. Okay. Yes?
18 Q. Do you know who Brian Levanthal is?
19 A. Yes.
20 Q. Did you ever speak with him about the Blanchard
21 Drive property?
22 A. I don't recall.
23 Q. This letter to the Planning Department from
24 your architect states, "Lynn phoned me yesterday,
25 requesting an updated calculation of the impervious site
Page 0078
1 coverage for her home."
2 Do you recall doing that?
3 A. No.
4 Q. Do you recall an issue where you needed an
5 updated calculation of the impervious site coverage for
6 the home?
7 A. Well, I think it was probably because he had
8 called me about that it was, we couldn't have the sport
9 court and the pool and everything. And so I probably
10 asked to, you know -- anyway. That would be my -- I
11 know, you're going to get mad at me -- I don't recall
12 this, I'm sorry, I don't recall this.
13 Q. And you don't recall seeing this letter ever.
14 A. No, I didn't see this letter, other than the
15 last time we met -- no.
16 MR. MINOLETTI: Why don't we take a five-minute
17 break.
18 (Short recess taken.)
19 BY MR. MINOLETTI:
20 Q. These were the plans that were left at the
21 house. This is a reduced copy, and I want to refer to
22 these but mark these.
23 Earlier we are discussed a set of plans that
24 was to be left at the house upon close of escrow, and
25 also we discussed a conversation that you had with
Page 0079
1 Mr. Simpson at the house where these plans were on the
2 kitchen counter.
3 A. Mm-hmm.
4 MR. GLASPY: Where these plans or a set of
5 plans?
6 MR. MINOLETTI: A set of plans.
7 Q. There were a set of plans left in the house,
8 and I'll represent to you that this is that set of
9 plans.
10 Do you recall what happened with the plans that
11 you looked at with Mr. Simpson the time that you met him
12 at the house?
13 A. No.
14 Q. This set of plans includes what appears to be
15 three groups of documents. There are 12 sheets that
16 comprise one group, and there are sheets 1 through 12
17 included.
18 A. Are we getting a set, copies, or no?
19 MR. GLASPY: He's going to mark this reduced
20 version, so it will be an exhibit.
21 THE WITNESS: But we're not going to walk away
22 with a set, okay.
23 MR. MINOLETTI: Did you order one?
24 MR. GLASPY: I don't remember. We get copies
25 of the exhibits.
Page 0080
1 BY MR. MINOLETTI:
2 Q. In any case, the first group is a group of
3 drawings that are sheet numbers 1 through 12, and all
4 12 sheets are here. There's another group, 1 through 5,
5 and that group is all here. And there's a third drawing
6 that is just marked page 3 of 3, and pages 1 and 2
7 appear not to have been included and the page 3 of 3 is
8 entitled Building Sections and Exterior Elevations.
9 Do you have any recollection of keeping or
10 taking any parts of the plans for the Blanchard home?
11 A. No, nothing at all.
12 Q. Other than having the set of plans available at
13 the house, did the plans, as far as you know, were they
14 given to anybody else?
15 A. No.
16 Q. On sheet 1 of 12, sheet 1 of 12 is called
17 Vicinity Map, Site Plan and Project Data. Do you know
18 who highlighted the driveway areas in orange?
19 A. No.
20 Q. Do you recall seeing these plans?
21 A. Yes.
22 Q. Are these the plans that you unrolled and
23 looked at with Mr. Simpson?
24 A. I couldn't tell you for sure. I assume so
25 since you told me so.
Page 0081
1 MR. GLASPY: Well, don't make an assumption.
2 He's asking you, is this set the one you looked at with
3 Mr. Simpson?
4 THE WITNESS: I don't know.
5 MR. GLASPY: Were you going to mark the reduced
6 copy?
7 MR. MINOLETTI: I am.
8 MR. GLASPY: That way we can refer to an
9 exhibit number.
10 (Whereupon, Exhibit 137 was marked for
11 identification.)
12 BY MR. MINOLETTI:
13 Q. Exhibit 137, page 1 of 12, do you know who made
14 the markings and notations in red on the drawing?
15 A. No.
16 Q. On the drawing, in what I would describe as
17 behind-the-house/backyard area, there's a notation: See
18 floor plan for exact size and location of dwellings,
19 pool and court.
20 A. This is James Stroupe's writing. He's the
21 architect.
22 Q. I assume that's the architect's writing. My
23 question is, did you ever see a floor plan that depicted
24 the dimensions of the dwellings, pool and court?
25 A. Never.
Page 0082
1 Q. Do you know if one ever existed?
2 A. I believe one never did. We never got that far
3 to dimension a pool or court. Those two, I've never
4 seen dimensions ever given to...
5 MR. GLASPY: For my own clarification, Paul,
6 there appears to be a green sticky, was that something
7 you added to the --
8 MR. MINOLETTI: Yes. We can take that off.
9 MR. GLASPY: That's fine.
10 BY MR. MINOLETTI:
11 Q. Exhibit 138 will be sheet number 1 of 5, it's
12 also called a Vicinity Map, Site Plan and Project Data.
13 And do you recognize that?
14 A. It's a rev of our plans, I couldn't tell you at
15 what point.
16 Q. Did you ever see a blueprint-sized plan that
17 had dimensions for the dwellings, pool and a court?
18 A. No.
19 MR. GLASPY: Are you going to mark Exhibit 138?
20 MR. MINOLETTI: 138.
21 (Whereupon, Exhibit 138 was marked for
22 identification.)
23 BY MR. MINOLETTI:
24 Q. Was there ever to your knowledge a set of plans
25 that depicted a swimming pool on the property?
Page 0083
1 MR. GLASPY: Depicted in any fashion? Because
2 we've seen earlier a plan drawing.
3 BY MR. MINOLETTI:
4 Q. Other than that drawing that we've looked at
5 earlier, a blueprint-type plan?
6 A. No, I don't remember.
7 Q. Do you know if there was ever a blueprint-type
8 drawing by the architect that depicted a sport court,
9 not the drawing that we looked at earlier?
10 A. No.
11 Q. No, you don't know, or --
12 A. Well, my thought is no, there's not.
13 Q. Do you know if there was ever any drawing
14 created by the architect to include patios either in the
15 backyard or side yards for the house?
16 A. I don't think so.
17 Q. Do you know if concrete patios were ever
18 included in the calculation for the impervious coverage
19 for the house?
20 A. I don't know.
21 MR. MINOLETTI: I think that's all I have. Do
22 you want me to mark the rest of these or just the two I
23 talked about?
24 MR. KOSS: Why don't we go ahead and mark them
25 all. I don't think I've seen the plans. I've seen a
Page 0084
1 set of plans.
2 MR. MINOLETTI: Okay.
3 MR. KOSS: Let me try and ask a couple of
4 questions about this.
5 EXAMINATION BY MR. KOSS
6 BY MR. KOSS:
7 Q. Ms. O'Brien, I know we met, but to state it on
8 the record my name is Charles Koss and I represent
9 Lou Rae Kagel.
10 In looking at the last sheet that we just
11 looked at, which I think we marked for identification
12 purposes as Exhibit 138?
13 MR. MINOLETTI: That's right.
14 MR. GLASPY: Page 1 of 138.
15 BY MR. KOSS:
16 Q. I know this plan has a little octagon part of
17 the house. That was never built that way, was it?
18 A. Do you have the interior floor plan for me to
19 look at?
20 MR. GLASPY: What he's asking is to your
21 recollection, did the house as constructed include
22 this --
23 THE WITNESS: When we sat down this morning and
24 I looked at that, I thought that was not accurate. But
25 then when I looked at the interior floor plan on the
Page 0085
1 plans, it looked right to me from the inside, so I
2 wasn't used to seeing this elevation on it. But if I
3 see the interior, there was a fireplace that was built
4 into that corner.
5 I think it was more like this than it was like
6 this (indicating). But that's the difference, you know.
7 I'm sorry
8 BY MR. KOSS:
9 Q. When you say like this rather than like that,
10 what you're saying is there's kind of a bump out in
11 this --
12 A. In the area of the master suite that contained
13 a fireplace and mantle and some sconces, and it was
14 built I believe more like this with just a straight, to
15 a point, as opposed to as an, octagon?
16 MR. GLASPY: Part of an octagon.
17 THE WITNESS: Part of an octagon. That's my
18 guess, my recollection.
19 BY MR. KOSS:
20 Q. So seeing the plan with the pointed area,
21 that's Exhibit 137, that's the more recent version of
22 the plans?
23 A. The best of my recollection.
24 Q. We've talked about you looking at some plans
25 with Mr. Simpson. At the conclusion of that meeting
Page 0086
1 with Mr. Simpson did he take the plans with him?
2 A. I thought so, but now that I think about it I
3 think maybe he -- I don't know, you asked me not to --
4 MR. GLASPY: I don't want you to guess or
5 speculate.
6 BY MR. KOSS:
7 Q. Don't guess or speculate.
8 A. He either took them with him or I rolled them
9 back and put them in the --
10 Q. It would have been one of those two things,
11 either he took them with him or you left them there when
12 you walked away leaving him at the property, the plans
13 were there?
14 A. No, this talk came earlier on, before he was
15 turned over the property.
16 Q. I know in the earlier versions there's not a
17 circular driveway in front of the house. Was that a
18 feature that was added subsequent to the initial plans?
19 A. I don't remember. I see it on one set and I
20 don't see it on this set (indicating).
21 Q. Do you remember any discussions with your
22 architect as to the reasons why a circular drive would
23 be added to the front of the house?
24 A. Oh, I would, I requested it. I remember at one
25 point saying I'd like to put this circular driveway out
Page 0087
1 front. And then he went in and talked to the town and
2 somehow got it approved.
3 Q. Do you recall if there were additional
4 calculations on impervious surfaces in order to make
5 that submission to the City of Monte Sereno?
6 A. I don't recall it but I can tell that you it
7 would have been looked at.
8 Q. Throughout this project, is it correct that the
9 amount of impervious surface was of a concern to you?
10 A. We were going to try and build the best, nicest
11 property, probably largest home that we could on the
12 property.
13 Q. So in that sense you wanted to use all the
14 impervious surface that you could; is that true?
15 A. Well, that wasn't the goal was to use up the
16 impervious coverage, was not the goal.
17 Q. No. The goal was to build the biggest house
18 you could?
19 A. To build the nicest home, like for instance the
20 circular drive out front -- this wasn't going to be my
21 house. I wanted it to be as nice as it could be, you
22 know, but I mean --
23 MR. GLASPY: You answered the question.
24 BY MR. KOSS:
25 Q. Let me show you what was marked at a prior
Page 0088
1 deposition as Exhibit 29, which I think may be a couple
2 of flyers stuck together. Let me hand that to you.
3 First of all, directing your attention to the
4 first page of Exhibit 29, do you recognize that
5 document?
6 A. Not specifically. It's a flyer for the house.
7 Q. Let me back up a little bit and get some
8 foundation here about your involvement.
9 After you signed the listing agreement with
10 Ms. Kagel -- do you need to see that to reference the
11 date on that?
12 A. No.
13 Q. With what sort of frequency did you go to the
14 home after that point?
15 A. I was at the home occasionally during finish
16 work, dealing with subcontractors and talking to people,
17 ordering things to be done from a construction,
18 finalizing everything.
19 Q. When to your recollection was the construction
20 completed?
21 A. I don't recall, but I can tell you that when
22 you have built a house in the past where we even lived
23 in it, it's hardly ever -- it's never done. There's lot
24 of things that keep going, little things that, faux
25 finishes and fixes and changes and little, you know,
Page 0089
1 things get -- finish details get completed for a long
2 time. It may be after you get finaled. So I don't
3 recall that chain of events in this case.
4 Q. Do you recall the listing agreement was entered
5 into in March of 2001?
6 A. Okay.
7 Q. Okay? And the purchase contract I think where
8 the original offer came in in mid-August of '01?
9 A. Okay.
10 Q. Can you give me an estimate in terms of when
11 during that time frame the construction had concluded?
12 A. Well, we can look to the final.
13 MR. GLASPY: No, he's asking for your
14 recollection, if you have one.
15 THE WITNESS: I don't have a recollection.
16 BY MR. KOSS:
17 Q. There's a document that would show when the
18 city issued a final occupancy permit?
19 A. Yes.
20 MR. GLASPY: Not in our possession, but perhaps
21 in the city's possession.
22 BY MR. KOSS:
23 Q. Do you recall if additional trim work was done
24 after that point?
25 A. No, I don't recall.
Page 0090
1 Q. Do you recall that at least some work was done
2 after Mr. Simpson made his offer?
3 A. No, no work was done after Mr. Simpson made his
4 offer.
5 Q. For instance, some air-conditioning was
6 installed?
7 A. I'm sorry, yes.
8 Q. I didn't mean to trick you. Other than the
9 air-conditioning, was there any other work you can
10 recall being done after Mr. Simpson submitted his offer?
11 A. Cleaners were at the house, keeping it clean
12 and free of cobwebs and things. Gardeners had to be
13 maintaining the exterior of the house. And that was it.
14 I mean, it really had been done for quite a while, I
15 think, when he bought it.
16 Q. Do you recall paving over an area with asphalt
17 that it looked like cobblestone prior to the work?
18 MR. GLASPY: Prior to what work?
19 BY MR. KOSS:
20 Q. Prior to putting asphalt across some
21 cobblestone?
22 A. Yes -- I'm sorry, you're using the wrong -- it
23 wasn't cobblestone but I can explain the whole story for
24 you.
25 Q. Can you explain it for me.
Page 0091
1 A. I sure will. Okay. Prior to getting final on
2 the house but at the, near the completion of the house,
3 one of the final things that we needed to do was the
4 encroachment strip, what they call an encroachment
5 strip. And that is outside of -- it's beyond our
6 driveway and connecting to the street. It's just a
7 strip, a strip of asphalt. And because we're an a curve
8 we had kind of a wide one. And I do recall that, that
9 they wanted us to put asphalt there.
10 MR. GLASPY: They being the city?
11 THE WITNESS: The city. And I said, well, I
12 want to put pavers there or something pretty. And they
13 said that they wouldn't allow me to do that because they
14 have issues if they have to go in and break into the
15 street and do some work on the road, then they would
16 have to replace that.
17 I said, "No, no, no, I'll sign whatever, I want
18 it to be attractive and I don't mind paying more," and
19 all of this kind of stuff.
20 So they said, "No, it has to be asphalt."
21 So I said okay. And I hired somebody, a
22 company that does stamped, colored asphalt. It was
23 black asphalt and it was colored and stamped to look
24 like pavers.
25 So then I called for my final and -- or
Page 0092
1 actually it was independent of that. I got a call from
2 the city saying, "We are aren't going to allow that."
3 I'm like, "You're kidding. It's blacktop. You
4 know, I just wanted it to look nice."
5 And they said, 5"no, you have to change it to
6 plain blacktop."
7 I said, "I have to put plain ugly blacktop out
8 there on purpose? I have to go now from something that
9 already exists?"
10 They said, "Yes, we want you to."
11 So I had to hire somebody at the cost of $6,000
12 to take off the surface layer and replace that and get
13 the grade right so that the drainage would happen
14 properly and so forth. And that was very early on, very
15 early on before we ever talked to Mr. Simpson, for sure.
16 He was not, as far as I know, you know -- but whether or
17 not it was before we listed the house, I don't know.
18 BY MR. KOSS:
19 Q. You don't recall --
20 A. I think it was before we listed the house.
21 Q. You don't recall the work being done after
22 Mr. Simpson bought the house?
23 A. No, clearly not. I do recall that this was not
24 done after he bought the house.
25 Q. Okay. After you signed the listing agreement
Page 0093
1 in March of 2001, to your understanding did the property
2 immediately go on to the Multiple Listing Service?
3 A. I don't recall that.
4 Q. Do you recall the for-sale sign went up on the
5 property?
6 A. I don't. I mean, I don't recall all those
7 dates and how things, you know, the succession -- I
8 remember, yes, I would -- because it was built to sell,
9 I probably would have wanted to finish the house before
10 selling it. But other than that, it probably was going
11 to sell right away.
12 Q. Do you recall at some point a sign went out in
13 front of the house?
14 A. Yes, absolutely.
15 Q. And along with that sign was there a box in
16 which flyers could be put that set forth various
17 specifications and amenities of the house?
18 A. I think there was.
19 Q. At some point after entering into the listing
20 agreement, were there open houses held at the property?
21 A. Yes.
22 Q. On how many occasions do you recall that
23 occurring?
24 A. Often, because the house was unoccupied and it
25 was -- and it was available to be seen and we were very,
Page 0094
1 you know, it was easy to show. So Lou Rae held it open
2 quite a lot.
3 Q. In connection with open houses, to your
4 understanding, were there flyers set out somewhere in
5 the house so prospective customers, clients, could pick
6 them up and look at them?
7 A. Yes.
8 Q. During this same period of time you're going in
9 with some of your subs to finish up trim work and the
10 like?
11 A. No. That was all done.
12 Q. So that was all done before open houses
13 started.
14 A. Yes, absolutely. The house was perfect
15 before --
16 Q. Initially during the listing period were you
17 still doing some work on the house?
18 A. Before listing?
19 Q. No, after the listing.
20 A. I don't think so, but that's my recollection.
21 Q. During the listing period with what sort of
22 frequency did you go to the house?
23 A. To meet the cleaners -- not very often, I mean,
24 to meet the cleaners; in, fact they pretty much were on
25 their own after the first time I met them out there.
Page 0095
1 The gardeners were the people that installed so I didn't
2 meet them either. I really didn't go out very often.
3 Q. In March of 2001 where were you living?
4 A. I was living -- I could ask my husband, he
5 would know. He knows all this stuff. Let me think for
6 a minute. I think we were living on Daves Avenue.
7 Q. How far is that from the Blanchard property?
8 A. A mile.
9 Q. Did you continue to live in the Daves property
10 up until August of 2001?
11 A. I think so, yes.
12 Q. Is it correct that during the time it was
13 listed you would stop by from time to time at least on a
14 weekly basis to take a look at the property?
15 A. There was nothing. It was all done and sitting
16 there, it was completed and furnished. And so I didn't
17 go, you know, by unless I had some reason to go by, I
18 guess, or like if Lou Rae was holding it open I might
19 swing by and say helly, pop in and out like two minutes.
20 But I wasn't around the house for any real reason other
21 than -- I guess I can't think of any reason.
22 Q. Were you ever at -- so you would stop by at
23 open houses sometimes when Lou Rae Kagel was there?
24 A. I can remember a couple of times I came by and
25 said hello.
Page 0096
1 Q. Do you recall meeting Mr. Simpson with Lou Rae
2 Kagel at one of these open houses?
3 A. I don't recall.
4 Q. Do you recall meeting any potential buyers and
5 discussing the house with any potential buyers during
6 these open houses?
7 A. No.
8 Q. During these times that you would stop by, did
9 you ever on occasion pick up one of these flyers for the
10 house and take a look at it?
11 A. No, I -- other than once I noticed -- I
12 looked -- I saw one in the drawer and said, "Wow, this
13 is thick."
14 Q. Okay.
15 A. But I didn't read it, I didn't look at it. I
16 mean, it was -- I figured that she was, she's a
17 professional agent, she had been doing this forever,
18 she's a friend of our family, I just trusted she knew
19 what she was doing.
20 Q. And during this, from March through August time
21 frame, five, six months, you weren't curious to see what
22 one of these flyers looked like?
23 A. No. I mean, I had -- I don't have a lot of
24 patience for paperwork stuff, that's just not my thing.
25 Q. Did it ever come to your attention that one of
Page 0097
1 the brochures or flyers for the house had the wrong
2 square footage?
3 MR. GLASPY: This is before the claim.
4 BY MR. KOSS:
5 Q. Yes. During the time that it was being listed
6 and marketed for sale.
7 A. I don't recall how that came up.
8 Q. Do you recall having discussions with Lou Rae
9 Kagel about discrepancies about the square footage of
10 the house and the way it was being marketed?
11 A. I don't recall that.
12 Q. Looking at the first page of Exhibit 29, it
13 talks about total square footage, approximately 5300
14 square feet. To your recollection does that accurately
15 describe the property on Blanchard?
16 A. No. It's got, on the plans here it says 5,051
17 square feet. So that would be my -- I mean, this would
18 be the best of my, you know, unless we had hired
19 somebody to measure it or something.
20 Q. Do you recall during the sale to Mr. Simpson an
21 issue coming up about square footage of the house?
22 A. I do remember that there was something going on
23 there with regard to, and Lou Rae wrote something up
24 correcting the square footage, making sure that he knew
25 that we weren't taking responsibility for.
Page 0098
1 Q. On any of the times that you were out at the
2 house during those open houses -- I just want to make
3 sure this is clear -- did you ever receive a tripod kind
4 of setup in the backyard with the poster board --
5 A. I never did, that I -- I mean, I don't remember
6 that, I'm sorry.
7 Q. You don't remember a poster board with any
8 description of the property.
9 A. No.
10 Q. And specifically, do you ever recall a poster
11 board which described the property as nearly one acre?
12 A. No.
13 Q. If you would have seen that you would have
14 realized that was inaccurate, wouldn't you.
15 A. Yes. It wasn't an acre. I mean, it -- I don't
16 know how generous you get to be, but it's not.
17 Q. Certainly if you had seen that you would have
18 mentioned something to your real estate agent about the
19 accuracy of that representation, would you not?
20 A. Probably, yeah.
21 Q. It talks about fiberoptics to keep you in
22 touch. Then I'm a little unclear --
23 MR. GLASPY: Just so we're clear, by it you're
24 referring to Exhibit 29?
25 BY MR. KOSS:
Page 0099
1 Q. I'm looking at first page of Exhibit 29, it
2 says, "Fibre optics to keep you in touch."
3 Do you recall seeing any brochures during the
4 time this property was on the market, seeing a flyer
5 that had those words in it, "fibre optics to keep you in
6 touch"?
7 A. No.
8 Q. Now, you indicated that there was a company
9 that came in and was willing to do some cabling of the
10 company free of charge; is that true?
11 A. Yes.
12 Q. What to your understanding was that person
13 going to install?
14 A. Some additional data drops, and I don't know if
15 they were going to be of a higher quality cable, but
16 we -- I don't remember exactly what it was, but that was
17 vague little what he was going to do.
18 Q. And by data drops, what do you mean by that?
19 A. Places for -- you know, now that you mentioned
20 it, I would think computers to be plugged in or maybe --
21 I'm guessing here. Let's not have me guess.
22 Q. I don't want you to guess. I want you to
23 describe for me as best you can recollect what this
24 person told you he was going to do.
25 A. Put some upgraded communications in.
Page 0100
1 Q. To your understanding was the house already
2 designed with certain features to it to allow computers
3 to be hooked up and the like?
4 A. Surely. It had phone jacks with CAD5 cabling,
5 which is adequate for all, for computers to be plugged
6 into. And then my, the way I always do things is
7 with -- and even more so now than then, but with
8 wireless transmitters.
9 Q. By looking at a phone jack, can you tell
10 whether or not it's a CAD5 connection, I mean, was that
11 in your area of expertise?
12 A. No.
13 Q. Do you recall discussing with Lou Rae Kagel the
14 cabling this person was going to do inside the house?
15 A. No. It was -- I don't remember discussing this
16 with her at all.
17 Q. Do you recall discussing that with her at some
18 point after the house was sold to Mr. Simpson?
19 A. No.
20 Q. And specifically, do you recall talking to her
21 about that issue at Courtside?
22 A. No.
23 Q. Have you ever used the word fiberoptics in any
24 conversation you've had with Lou Rae Kagel?
25 A. No. I would have never, ever said fiberoptics
Page 0101
1 were in that house.
2 Q. First page of Exhibit 29 has a statement that
3 says, "Room for pool and/or other building."
4 At the time that the property was listed, was
5 it your belief that there was room at the property for a
6 pool and/or other building?
7 MR. GLASPY: If you had such a belief. His
8 question assumes you had a belief.
9 THE WITNESS: I believed that there was, I
10 don't know how big, a pool or whatever, I guess I
11 probably would have thought a pool could go there
12 somewhere.
13 BY MR. KOSS:
14 Q. Isn't it true that at the time you first listed
15 the property that there was additional 800 square foot
16 available under the impervious surface limitations with
17 the City of Monte Sereno?
18 A. I believed that at the time.
19 Q. And you believed that at the time of the close
20 of escrow to Mr. Simpson?
21 A. Yes.
22 Q. When you first entered into this listing
23 agreement, do you recall at or about that time going
24 through the property with Lou Rae Kagel?
25 A. Yes.
Page 0102
1 Q. Do you recall any discussions you had with her
2 about the property?
3 A. No, I don't.
4 Q. Do you recall her taking notes?
5 A. Yes.
6 Q. Do you recall this being one meeting, more than
7 one meeting?
8 A. One meeting.
9 Q. Was there anyone present besides you and
10 Ms. Kagel?
11 A. No.
12 Q. Was this meeting before or after signing the
13 listing agreement, or at the same time, I guess?
14 A. Probably after signing the listing agreement.
15 It was after the listing agreement, and she needed to
16 get the information together, so she came through and
17 took some notes of what she saw in the house.
18 Q. Now, to your understanding, are there setback
19 requirements on this property?
20 A. Yes.
21 Q. What to your understanding are the setback
22 requirements?
23 A. Well, I believe this dotted line that runs
24 around the perimeter here is the setback (indicating).
25 But there are things that can go in the setbacks, likes
Page 0103
1 driveways and things, certain things can and certain
2 things can't.
3 Q. For instance, the guest house, is that a
4 15 foot setback?
5 A. It looks like it, 'cause this is 15.
6 MR. GLASPY: It depends on what angle you're
7 looking at, Charles.
8 THE WITNESS: Well, it looks like -- and then
9 the back -- that's right. There's a difference between
10 side setbacks and rear setbacks.
11 BY MR. KOSS:
12 Q. The rear being 30 feet?
13 A. The rear is 30; I'm looking at the plans to
14 know that.
15 Q. Do you recall discussing with Lou Rae Kagel at
16 the meeting where the two of you looked at the house and
17 the various amenities of the house, do you recall
18 telling her at that meeting that an additional
19 800 square foot structure could be built with a six-foot
20 setback?
21 A. No.
22 Q. You don't remember one way or the other?
23 A. I wouldn't have said that. Structures are also
24 considered arbors and things like that. Landscape
25 elements are considered structures, things like that.
Page 0104
1 But I wouldn't have known anything about being six foot.
2 Q. I think you said earlier you always thought you
3 could do for instance an arbor, correct?
4 A. No, that even you if you did an arbor it would
5 be considered a structure entity, like an accessory
6 structure.
7 Q. Did you ever tell anyone that you thought you
8 could put an arbor on the property?
9 A. No, because you would need to check with the
10 town. The town controls all that stuff really closely.
11 You cannot just -- I think any message would have been
12 you cannot put an arbor anywhere.
13 Q. You would have to get a permit for that.
14 A. Absolutely.
15 Q. Right. Did you ever tell anyone in your belief
16 however that there was room for an 800 square foot
17 structure on the property?
18 A. I probably explained that structures are --
19 MR. GLASPY: Are you guessing or speculating?
20 He's asking you for a specific recollection.
21 THE WITNESS: I thought I had 800 square feet
22 available for something, whether it be a pool or an
23 arbor or something.
24 BY MR. KOSS:
25 Q. Looking at Exhibit 29 it says, room for pool.
Page 0105
1 You would have believed back at the time the listing
2 agreement was entered into that that was in fact an
3 accurate statement.
4 A. I told -- no. I told everybody the pool was
5 not approved, you need to go down to the town and find
6 out about getting a pool.
7 Q. Did you have any reason to --
8 A. I told that directly to everybody.
9 Q. At the time you entered into the listing
10 agreement, did you have any reason to believe that the
11 city would deny an application for a pool?
12 A. No, I didn't have any reason to believe that.
13 Q. You don't work at the city office, you don't
14 know what they're going to do, though, right?
15 A. I don't, but I know that they are a very tough
16 community. But I know that they've also approved lots
17 with other unusual things.
18 Q. Sure. Just talking about your belief,
19 obviously you're not the planner at the city.
20 A. Right.
21 Q. At the time that you entered into the listing
22 agreement, was it your belief that if someone brought
23 the property and went down and applied for a permit for
24 an 800 square foot structure, did you have any reason
25 that that would be denied?
Page 0106
1 A. No. By structure I mean pool or arbor or
2 anything. I don't think they were going to put another
3 building on this property and I don't think anybody
4 thought that they were going to put another building on
5 this property. It's already got lots of buildings.
6 Q. I direct your attention to the third page of
7 Exhibit 29. It's a statement that says, "City says
8 space in back sufficient for an additional 800 square
9 foot structure."
10 Do you recall ever seeing a flyer or brochure
11 representing the property with that statement on it?
12 A. No, I don't.
13 Q. At the time that you entered into the listing
14 agreement, did you think that the city would in fact
15 allow an additional 800 square foot structure?
16 A. A building, no.
17 Q. No, structure.
18 A. Whether it be a pool or an arbor or something
19 like that, I thought that that was available.
20 Q. Now, this page 3 of Exhibit 29 also talks about
21 three zones of heating and air-conditioning. Is that
22 something you felt the property had, was three zones of
23 heating and air-conditioning?
24 A. Yes.
25 Q. And that's something you would have said to
Page 0107
1 Lou Rae Kagel?
2 A. Yes.
3 Q. I just wanted to go through some of these
4 exhibits and see if there's some questions I need to ask
5 you about some of them.
6 Let me show you a document we marked for
7 identification purposes as Exhibit 75. Let me ask you
8 if you recall seeing that document during the escrow
9 period with Mr. Simpson.
10 A. No.
11 Q. Do you recall an issue coming up during the
12 escrow period about air-conditioning in the guest house?
13 A. Yes.
14 Q. Do you recall having discussions with Ms. Kagel
15 about that issue?
16 A. Yes.
17 Q. And what do you recall discussing with her?
18 A. I thought that the house was done, we had done
19 all we were going to do, it was not something that I had
20 ever expected to put air-conditioning out in the guest
21 house.
22 Q. Did you suggest to Ms. Kagel that you would
23 bear part of the cost of the air-conditioning?
24 A. I don't recall.
25 Q. Do you recall in substance asking Ms. Kagel to
Page 0108
1 send the buyer Exhibit 75?
2 A. No, I don't recall.
3 Q. Did you propose to Ms. Kagel that if
4 Mr. Simpson was willing to pay $1200, that you would
5 install air-conditioning in the guest house for him?
6 A. Yeah. When -- I don't recall that; however, I
7 do recall that the guest house was shown to him without
8 air-conditioning, it was never my anticipation or
9 expectation to put air-conditioning in, and he wanted
10 it. And so our first thing that I said when he said he
11 wanted air-conditioning in the guest house was, okay, I
12 could provide that for this amount of money as an
13 upgrade. And he said, "No, I want it for free."
14 Q. And eventually do you recall that it was, it
15 was installed at the cost of the agents?
16 A. I don't remember now. I remember that they at
17 least participated if not handled the cost, yes.
18 Q. Let me show you Exhibit 89, and I can't
19 remember if we went through that document earlier.
20 You recall having discussions with Ms. Kagel
21 about the fact that this escrow was not closing in at
22 least what you felt was a timely manner, correct?
23 A. Yes.
24 Q. Is it correct that you asked Ms. Kagel to in
25 substance do whatever she could to get it closed?
Page 0109
1 A. No. I asked her to get rid of the buyer. I
2 said -- I recall emphatically saying we need to
3 re-market this house and get somebody who's going to
4 follow through this and do that. I don't know if this
5 guy will ever close and he's already -- I just don't
6 know if at this point, I'm assuming at this point he had
7 already done the air-conditioning thing. And so I
8 didn't know what was going on with him and I wanted her
9 to re-market the house.
10 Q. You wanted her to tell Mr. Simpson the deal is
11 off --
12 A. He was out of contract. When I sign an
13 agreement to close escrow on a certain date, I know that
14 people have everything lined up and it's very important
15 to them for me to follow through and to execute. I do
16 what I -- he was out of contract.
17 She, you know -- yes, I would have -- it's so
18 hard -- I didn't know if he was ever going to do this or
19 not, and we had already been through a lot with this.
20 So I wanted her to get busy re-marketing the house, and
21 I think that that's noted in the documents that we've
22 seen.
23 Q. Did you believe that some delay as a result of
24 9/11 was maybe appropriate?
25 A. I know that other people were transferring
Page 0110
1 funds. I think, if I remember, it was an issue of a
2 check and/or getting funds transferred from the east
3 coast and other things were closing, money was going --
4 after about two days we were all back up and running.
5 Everything was up and running. He had made a commitment
6 and I had made lots of commitments based on his
7 commitment.
8 I earlier could have easily gotten new
9 financing on the house to carry me for another period of
10 time, but I was letting down my lender.
11 Q. And you knew that Mr. Simpson had made a loan
12 that was not contingent on financing, right?
13 A. Right.
14 Q. And you saw that he wanted a delay because he
15 was having problems with his financing?
16 A. Right.
17 Q. Did you think that was appropriate, that he
18 delay the closing as a result of that?
19 A. No. I wouldn't have cared if he got financing
20 if he made his date. I mean, he doesn't have to not
21 have financing because he said he wasn't going to, but I
22 certainly didn't see it as a reason for us to delay the
23 close of escrow.
24 Q. Let me ask you about the situation right at the
25 close of esc