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00001
1 SUPERIOR COURT - STATE OF CALIFORNIA
2 COUNTY OF SANTA CLARA
3 ---oOo---
4
5 RALPH SIMPSON,
6 Plaintiff,
7 -vs- NO. 105CV053398
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 ______________________________/
AND RELATED ACTIONS.
13 ____________________________/
14 DEPOSITION OF PHILLIP G. DEUTSCHER, CRB
15 January 11, 2007
16
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18 REPORTED BY:
19 MARION KENYON, CSR NO. 4381
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23 TOOKER & ANTZ
CERTIFIED SHORTHAND REPORTERS
24 350 SANSOME STREET, SUITE 700
SAN FRANCISCO, CALIFORNIA 94104
25 (415) 392-0650
00002
1 I N D E X
2 PAGE
3 EXAMINATION BY MR. KOSS 5
4 EXAMINATION BY MR. THOMAS 107
5 FURTHER EXAMINATION BY MR. KOSS 132
6 FURTHER EXAMINATION BY MR. THOMAS 135
7
8 E X H I B I T S
9 DEFENDANT'S
10 1 Curriculum Vitae of Phillip 10
G. Deutscher
11
Two pages of expert retainer 20
12 documentation, unsigned
13 3 Ten pages of emails 23
14 4 One page of handwritten notes 24
15 5 Eight pages of deposition 24
excerpts
16
17 --oOo--
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00003
1 DEPOSITION OF PHILLIP G. DEUTSCHER, CRB
2
3 BE IT REMEMBERED that, pursuant to Notice of
4 Taking Deposition, and on Thursday, January 11, 2007,
5 commencing at the hour of 1:15 p.m., in the Law Offices
6 of Gagen, McCoy, McMahon, Koss, Markowitz & Raines, 279
7 Front Street, Danville, CA 94526, before me, MARION
8 KENYON, duly authorized to administer oaths pursuant to
9 Section 2093(b) of the California Code of Civil
10 Procedure, personally appeared
11 PHILLIP G. DEUTSCHER, CRB,
12 called as a witness by the Defendant and
13 Cross-Complainant Lou Rae Kagel, and the said witness,
14 having stated that he would testify the truth, the whole
15 truth, and nothing but the truth, was thereupon examined
16 and testified as hereinafter set forth.
17 GREENE, CHAUVEL, DESCALSO & MINOLETTI, 951
18 Mariner's Island Boulevard, Suite 630, San Mateo, CA
19 94404, represented by PAUL G. MINOLETTI, ESQ., appeared
20 as counsel on behalf of Plaintiff Ralph Simpson.
21 GAGEN, McCOY, McMAHON, KOSS, MARKOWITZ &
22 RAINES, 279 Front Street, Danville, CA 94526,
23 represented by CHARLES A. KOSS, ESQ., appeared as
24 counsel on behalf of Defendant and Cross-Complainant Lou
25 Rae Kagel.
00004
1 LAW DIVISION OF NRT INCORPORATED WESTERN
2 DIVISION, 12657 Alcosta Boulevard, Suite 500, San Ramon,
3 CA 94583, represented by STEPHEN W. THOMAS, ESQ.,
4 appeared as counsel on behalf of Defendant Valley of
5 California dba Coldwell Banker.
6 --oOo--
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00005
1 PHILLIP G. DEUTSCHER, CRB,
2 having stated that he would testify the truth,
3 the whole truth, and nothing but the truth,
4 testified as follows:
5
6 EXAMINATION BY MR. KOSS
7 MR. KOSS: Q. Will you please state your name
8 and business address.
9 A. Name is Phillip, with two l's, Gary Deutscher,
10 D-e-u-t-s-c-h-e-r.
11 Business address is 1160 Alpine Road,
12 Walnut Creek, California.
13 Q. Mr. Deutscher, I introduced myself to you
14 prior to the start of the deposition. I represent Lou
15 Rae Kagel as a defendant in a lawsuit brought by Ralph
16 Simpson arising out of the purchase by Mr. Simpson of
17 some property located on Blanchard Drive in
18 Monte Sereno.
19 And I understand, sir, that you have been
20 retained by Mr. Simpson or his counsel to render expert
21 opinion in this matter?
22 A. Yes, I have.
23 Q. Okay.
24 Have you acted as an expert witness in cases
25 prior to this?
00006
1 A. Yes, I have.
2 Q. On how many occasions would you estimate?
3 A. I have been doing it since 1990, and I think,
4 if you want engaged, probably somewhere between 150, 200
5 times.
6 Q. And you have been deposed prior to today?
7 A. Yes, I have.
8 Q. On how many occasions?
9 A. I would just guesstimate somewhere in the
10 range of 15 to 20 times.
11 Q. Would you like me to go through the rules of a
12 deposition, or you think you're familiar with them?
13 A. No, you don't need to.
14 Q. Okay.
15 Now, one of the things I asked you to do was
16 bring a number of documents with you, and I think one of
17 the first things I asked was for a CV.
18 Did you bring that with you?
19 A. Yes.
20 One of the things I did not bring, because you
21 guys moved the time up, is I had my exhibits, which I'm
22 sure Counsel here can tell you what I received. I
23 didn't have time to go home and get those.
24 Q. And I take it you looked at a whole lot of
25 documents, and you didn't bring those with you
00007
1 because --
2 A. One set, just the exhibits.
3 Okay. You want my CV?
4 Q. Yes.
5 Thank you.
6 Before I get to your CV, I see that you've
7 brought a laptop with you.
8 A. Yes, sir.
9 Q. And you have that laptop open?
10 A. Yes, I do.
11 Q. Is there something on the screen?
12 A. Everything that I read except one deposition
13 that was supplied to me by Paul was all on ASCII disk.
14 Q. Anything else contained on your computer
15 relating to this case other than the information
16 supplied to you by ASCII disk?
17 A. Yes.
18 I just had some -- I don't know if you call
19 them notes -- some part of the material that I pasted
20 out just to keep them in front of me, and I did run a
21 copy of whatever I had on my computer for you.
22 Q. Okay.
23 Anything else on your computer besides the
24 notes and the stuff you received from counsel on ASCII?
25 A. Yes.
00008
1 I had -- I also copied the emails I received
2 from Paul's assistant that covered the ASCII depositions
3 I was sent.
4 Q. Okay.
5 And those emails were also printed out.
6 Did you bring those in hard form, too?
7 A. Yes.
8 Q. Do you need your computer open to refer to
9 those as we do this deposition?
10 A. Only in the beginning, just to note, when you
11 asked me what I read, I was going to look through and
12 find those.
13 Q. Why don't we do that now, and we can close the
14 computer, because I don't know what you're looking at.
15 A. No problem.
16 Q. Why don't we do this: Tell me what you
17 reviewed in this case to assist you in rendering your
18 opinions.
19 A. Absolutely.
20 I have reviewed the following depositions:
21 Mr. Barkan, Chandler, Ryan Iwanaga, Kagel, O'Brien,
22 Mr. Simpson, Ryan Simpson, Mr. Stroupe, and Tomasena
23 Simpson.
24 Q. And you read each one of those depositions; is
25 that true?
00009
1 A. Yes, sir.
2 Q. As you read those depositions, did you read
3 them on your laptop or in hard copy form?
4 A. I read all but -- I read all of them in hard
5 copy, but I did look -- start reading again and happen
6 to have -- actually, I brought the exhibits and left
7 the -- I have a hard copy of Mr. Simpson's, and I did
8 not bring that but I did not make any notations in that
9 at all.
10 Q. So the one hard copy of the deposition
11 transcripts, including exhibits, is you brought the
12 exhibits to Mr. Simpson's deposition?
13 A. Right.
14 Q. Okay.
15 As you read the depositions, did you make
16 notes?
17 A. Excuse me?
18 Q. As you read the deposition transcripts, did
19 you make notes?
20 A. Not really, other than I cut and pasted
21 whatever I'm going to give you a copy of, excerpts. I
22 made maybe two or three notes in there, but they're in
23 there.
24 Q. Okay.
25 And now can we close your laptop?
00010
1 A. Absolutely.
2 Q. Okay.
3 Why don't we mark this as Exhibit 1, this
4 being your CV.
5 A. Yes, sir.
6 (Whereupon, Defendant's Exhibit 1 was
7 marked for identification.)
8 MR. KOSS: Q. Looking at your CV, sir, I see
9 you have been a real estate licensee since 1973?
10 A. Yes, sir.
11 Q. And a broker since '74?
12 A. Yes.
13 Q. And you continue to hold a broker's license?
14 A. Yes.
15 Q. Have you ever been sanctioned or reprimanded
16 by the Department of Real Estate?
17 A. Absolutely not.
18 If I put my hand near my mouth, just let me
19 know. I have a tendency to do that.
20 Q. So, by looking at your resume, I would guess
21 that you graduated college in 1973 and you immediately
22 began -- immediately got your real estate license?
23 A. Yes, sir.
24 Q. And did you immediately embark on a career in
25 real estate?
00011
1 A. Yes.
2 Q. What did you initially do?
3 A. I -- well, actually, I had a career in real
4 estate prior to this, but not as a licensee, but I went
5 to work under my father's license until I got my
6 broker's license at Deutscher & Associates, which is an
7 all-broker-license firm, except for me, and began
8 training in residential sales.
9 Q. Is your father Irv Deutscher?
10 A. That's my uncle.
11 Q. Your resume doesn't really describe what you
12 did, at least as best I can tell, between 1973 and 1985.
13 Can you tell me what you were doing for that
14 time frame?
15 A. Residential -- sale of residential properties,
16 investment counseling, multiple units; hundred percent
17 time dedicated to residential sales.
18 Q. What do you mean by "multiple units"?
19 A. I also took my courses to become a CCIAM, or
20 at least the qualifications for it, which was Commercial
21 Investment Member, and I started working on selling
22 properties with more than single family, multiple units,
23 and doing some syndications and travelling oversees to
24 raise money for syndications, and I did sell some
25 commercial product at the time, too.
00012
1 I also became, during that period of time, a
2 partner in Deutscher & Associates, and I supervised
3 agents as we changed the nature of the company from a
4 brokerage company to -- being all broker to having sales
5 personnel.
6 Q. Who were the principals of Deutscher &
7 Associates?
8 A. Well, we -- some came in and out, but Gordon
9 Bolton, Doug Kroke, my father, Edward Nineo -- wow, I
10 have to go way back.
11 Gosh, there were some many -- oh, Randy
12 Grable, formerly of Grable & Associates.
13 Basic ones.
14 Q. Okay.
15 And was the business of Deutscher & Associates
16 a real estate brokerage company?
17 A. Yes, sir.
18 Q. Selling principally -- I'm sorry -- handling
19 principally residential real estate?
20 A. Yes, sir.
21 Q. Now, in 1985, is it correct you left Deutscher
22 & Associates and went to Executive Brokers?
23 A. Yes.
24 Just to be clear, about 1981, couple of my
25 partners took a more generic name -- God knows why
00013
1 because we dealt with foreign clients -- and it dealt as
2 a d.b.a.
3 In '85, July, I believe, I left and went to
4 another all-broker office, being Executive Brokers.
5 Q. Actually, I think I need to apologize. I'm
6 not very good reading your resume.
7 It does describe the time frames 1973 to the
8 present.
9 So in 1985 you went to Executive Brokers,
10 correct?
11 A. I, by ownership in Deutscher d.b.a. of
12 Horizons, bought into Executive Brokers.
13 Q. When you say "bought into," what do you mean?
14 A. For that year only, we were an all-broker
15 office but we were all under the Executive Brokers
16 license, and so I bought in as partner.
17 Then, because of the E&O crunch that happened
18 that year when I got there, naturally, we structured the
19 company so it was not under Executive Brokers, Inc. any
20 more. We all became independent.
21 Q. Are you still affiliated with Executive
22 Brokers?
23 A. Yes.
24 I now am an independent broker doing business
25 as Executive Brokers working under a service mark, being
00014
1 Executive SM and being licensed by Executive Brokers,
2 Inc., which is now de-licensed, so there is not
3 hopefully a joint liability under all us independent
4 brokers.
5 Q. Can you describe the nature of your
6 professional practice with Executive Brokers?
7 A. 99 percent of it is residential resale.
8 Q. Do you have any agents working for you?
9 A. Not at this time.
10 I have had over the last seven or eight years,
11 whenever we found somebody that would be a great new
12 associate to be with us and hadn't got their broker's
13 license, I was normally the person that took them under
14 my license while they were acquiring their broker's
15 license, anywhere from three or four years, and I would
16 supervise them.
17 Q. And in the year 2000 you were General Manager
18 for the Contra Costa Association of Realtors?
19 A. Yes.
20 Q. Can you describe to us your duties in that
21 position?
22 A. In 1999 I served my second time as President
23 of Contra Costa, and we were doing a program of trying
24 to restructure our services for our membership, and they
25 asked me if I would consider taking on the job of being
00015
1 general manager, which included supervision of all the
2 staff, except for accounting, and I was helping them
3 build their business plan, and so I made a deal with
4 Executive Brokers, that I could still -- and the board,
5 that I could still be a member of Executive Brokers at
6 the same time because of these agents to do expert
7 witnessing but only the cases I had open and I could
8 work for them at the same time.
9 Q. Was this a full-time position as general
10 manager?
11 A. Yes.
12 Q. So --
13 A. Full in the sense that it was not an eight- to
14 ten-hour job a day, but -- and I had regular hours, but
15 I was allowed to do these other things beyond that
16 purview.
17 Q. So, in addition to being a general manager,
18 you had your own practice as a broker?
19 A. I was precluded from selling anything myself,
20 but I could supervise the people I had under my license
21 and I was allowed to do that, and I was allowed to
22 finish up any exert witness cases I had already opened,
23 but, as to going out and listing and selling property
24 exclusively myself, no.
25 Q. Why did you leave that position?
00016
1 A. Well, they wanted to get a new executive
2 officer and interviewed -- I don't know -- 50, 75
3 people, and it came down to me and another person, and
4 that person got it and I decided time to get out of
5 town.
6 Q. Do you recall who it was that they hired?
7 A. Yes.
8 Chuck Lam.
9 The last executive officer that was relieved
10 of his command last year.
11 Q. And was he given the position of general
12 manager or, you say, executive manager?
13 A. They created that position for me and it went
14 away when I left.
15 Q. And for some period of time you were
16 affiliated with a C21 office?
17 A. Right.
18 They came to me and said, "We would really
19 like you to come over. We have 200-plus agents. We
20 would like you to help us with the liability and
21 training and we would like to recruit in Lafayette."
22 And I told them I had people working for me under
23 Executive Brokers under my license. And they said, "We
24 trust you, so you can be two places at the same time,
25 you can have your own agents over at Executive Brokers,
00017
1 but if you do any business, you will do it while you're
2 working here 8:00 to 5:00 with us."
3 So they created that position with me.
4 Then my duties were expanded to reviewing all
5 the contracts in the Lafayette office for them and
6 troubleshooting any deals that came up where there might
7 be litigation.
8 Q. In essence, did you become the branch manager
9 for the Lafayette office?
10 A. I think I was designated as a DR besides --
11 I'm not sure -- but I'm pretty sure I was. I know I
12 could sign things.
13 Q. In your position at Century 21, were you
14 engaged in listing and selling properties, or was this
15 more of a management role?
16 A. I was allowed to, but I was overwhelmed, so I
17 don't even think I put a person in my car at that time.
18 Q. And, during that time, were you listing and
19 selling properties from Executive Brokers?
20 A. I was precluded from doing that, other than my
21 agents using my broker's license. I was personally
22 precluded from doing that.
23 Q. Now, you say at some point in your career you
24 started doing expert witness work, and that was
25 approximately 1990?
00018
1 A. 1990.
2 Q. Prior to this case, have you worked for
3 Mr. Minoletti's firm in the past?
4 A. No.
5 Q. Do you know how you happened to be contacted
6 by Mr. Minoletti's firm to act as an expert in this
7 case?
8 A. I think he saw my billboard on highway -- just
9 kidding. I'm just kidding.
10 I think he might have seen me in the Northern
11 California Register for -- out of the San Francisco Bar
12 Association, but I'm not sure.
13 I don't remember him being referred to me, but
14 I could be wrong; I don't remember.
15 Q. So why do you think that's how Mr. Minoletti
16 found you?
17 A. Because that's probably where I get 50 percent
18 of the contacts I get, they see that in the body of that
19 periodical.
20 Q. And you say since 1990 you have been retained
21 as an expert witness some 200 times?
22 A. I'm guesstimating, but I would say 150 to
23 above.
24 Q. And have you testified in court?
25 A. Yes, I have.
00019
1 Q. In which counties?
2 A. San Francisco, Santa Clara, Contra Costa,
3 Alameda, that I know of.
4 I can't remember.
5 Q. Have you ever been, to your knowledge,
6 precluded from testifying as an expert witness?
7 A. Excuse me?
8 Q. To your knowledge, have you ever been
9 precluded from testifying as an expert witness?
10 A. I have never been disqualified, other than a
11 conflict -- I was called by two sides of the case, and I
12 was at a meeting, didn't recognize the names, and they
13 both decided not to use me, so I guess that's kind of
14 disqualified.
15 Q. You didn't recognize the names so you agreed
16 to serve as an expert for both sides?
17 A. I talked to both sides about the case, so that
18 was it for me.
19 Q. When were you first contacted by anyone from
20 Mr. Minoletti's firm?
21 A. I think within the last 35, 45 days.
22 Q. And how was that contact done, by phone?
23 A. My telephone.
24 Q. And was that followed up by any written
25 instructions to you?
00020
1 A. No.
2 It was, "Here's the nature of the case. Do
3 you have any conflicts with it? Is it something within
4 the purview of your expertise? Are you available on
5 certain dates," and, "Could you send me some
6 information?"
7 I sent him my CV, my fee schedule, my letter
8 of engagement, and he looked at it and said, "We'll send
9 you a check and get some material to you."
10 Q. Okay.
11 All the stuff you just described, is that in
12 the file that is in front of you?
13 A. Right here.
14 I did not bring the executed one, because I
15 didn't have time to go home and get that either, but I
16 have copies off my laptop of what he got.
17 So you've got the CV, and here are the two
18 other documents other than the cover fax that stated
19 what's being supplied accompanying it.
20 Q. Okay.
21 Why don't we mark this two-page document as
22 Exhibit 2.
23 (Whereupon, Defendant's Exhibit 2 was
24 marked for identification.)
25 MR. KOSS: Q. Showing you Exhibit 2, I guess
00021
1 this is correspondence you sent to Mr. Minoletti
2 together with your schedule of fees?
3 A. Yes, sir.
4 Q. Okay.
5 And there is a signed version somewhere; you
6 don't have it with you?
7 A. No, I don't. I didn't have time.
8 Q. Do you know the date that it was signed?
9 A. If you want me to look in my computer, I can
10 see when it was generated, because it was done right
11 after that, but -- it was probably -- it was written the
12 last 45 days, I believe. This came up pretty quick.
13 Q. At that initial conversation with -- who did
14 you talk to, Mr. Minoletti?
15 A. Yes.
16 Q. Did he ask you to undertake any work on his
17 behalf?
18 A. At that time, the scope of my assignment, I
19 believe, was to look at the standards of care and the
20 duties as they were performed by both Mr. Rea and the
21 listing agent, Kagel in this case, and see if they met
22 those standards of care and duties.
23 That was, basically, my assignment.
24 Q. And what work did you do to undertake that
25 assignment?
00022
1 A. I read the depositions that were put into
2 evidence a while ago and exhibits, and, basically, that
3 was the nature of my work.
4 Q. Did you consult any reference books or
5 anything like that, magazine articles, talk to anybody
6 else to assist you with your opinions?
7 A. Not in this case.
8 Q. Now, you indicated that you put together some
9 notes?
10 A. I -- I guess you would call them notes, but,
11 basically, I just took some -- I just took some
12 highlights out of some of the depositions that I thought
13 I might want to look at later and -- just a second here.
14 These are, by the way, the emails.
15 Q. Let me look at the emails while you're looking
16 through the rest.
17 A. I haven't had a chance to go back and look at
18 these yet.
19 (Witness handing documents to Counsel.)
20 Also in my file -- the only thing else I have
21 in my file, too, if you wish to note it, is the
22 disclosure of expert witness that I had in my file, too.
23 I had that with me.
24 Would you mind if I got a cup of coffee?
25 Q. No; no. Go right ahead.
00023
1 (Discussion off the record.)
2 THE WITNESS: He sent me nothing of material
3 fact in any of the emails, just for the record, Paul
4 Minoletti or Valerie, I believe her name is.
5 And the only other thing I left in my car and
6 that gave me the time and directions for today.
7 MR. KOSS: Q. Sure.
8 Let's turn to the emails.
9 You gave me a series of emails, and it appears
10 that, by looking at the emails, between November 21 and
11 roughly November 28th the deposition transcripts were
12 emailed to you as attachments.
13 A. Yes, sir.
14 Oh, I just found one more sheet of notes that
15 must have been when I talked to him on the phone,
16 possibly. I didn't even realize I did it.
17 But I'll put that over here, too. I just
18 happened to see that in there.
19 I'm not much of a note taker. I'm a cut and
20 paster.
21 Q. So why don't we mark your emails as Exhibit 3.
22 (Whereupon, Defendant's Exhibit 3 was
23 marked for identification.)
24 MR. KOSS: Why don't we mark your handwritten
25 notes as Exhibit 4.
00024
1 (Whereupon, Defendant's Exhibit 4 was
2 marked for identification.)
3 MR. KOSS: Why don't we mark the deposition
4 excerpts as Exhibit 5.
5 (Whereupon, Defendant's Exhibit 5 was
6 marked for identification.)
7 MR. KOSS: Q. And all that remains in your
8 file that we haven't marked as an exhibit is the
9 disclosure made by Mr. Simpson's counsel of you as an
10 expert.
11 And is there anything else in your file?
12 A. No. It's just copies of my CV all over again.
13 Q. Okay.
14 Turning first to the notes, Exhibit 4, let me
15 show you that document.
16 Are those notes of a conversation you had with
17 someone?
18 A. I got to be real frank, I'm not even sure when
19 I took them. This is probably when he might have made a
20 phone call to me. Just noting some basics about the
21 property.
22 Q. When you say "he," you mean Paul Minoletti?
23 A. Yes, sir.
24 Q. Let me go to your custom and practice.
25 When you are retained as an expert in a case,
00025
1 do you open up a file?
2 A. Other than put the initial contract in it,
3 that's about, usually, what all goes in it, my contract
4 between the attorney hiring me.
5 Q. And do you make some effort to keep track of
6 your time?
7 A. Yes.
8 Q. How do you do that?
9 A. I sit down after the deposition and log it all
10 in.
11 Q. So, as you sit here today, you haven't logged
12 in any of the time that you've spent on the file?
13 A. Mentally. I've mentally. I know how long it
14 takes me to do what I do after years of this, and there
15 is so much stop and go, so I understand how many pages I
16 read and how long it takes me to review.
17 Q. Up to this time, how much time do you have in
18 this matter?
19 A. I would say approximately 15, 18 hours.
20 Q. How do you know whether to bill 15 or 18?
21 A. I would go back and look at the pages and
22 remember what I did in my time frame. I sit in blocks.
23 I used to do stop, go, and then I finally
24 forget to turn the timer on, and I realize that I read
25 between 50 and 55 pages an hour, is what I feel my
00026
1 average is, and I look at the supporting document and I
2 have to stop and look at it, and I either do 50 or 55,
3 right in there.
4 Q. Now, showing you Exhibit 5, you say you cut
5 and pasted some deposition testimony into this exhibit,
6 correct?
7 A. Yes.
8 Q. And did you add any notes or anything along
9 those lines?
10 A. I think there's just two phrases I just put in
11 there just to -- in case I decided to look at it while
12 we're sitting here.
13 I think I put in there -- it wasn't even
14 noteworthy.
15 I put down, "Increased deposit of 1.25
16 million," just to remind me they had asked for that, and
17 I think on the first page -- I put down the address.
18 And, other than that, there are no other notes
19 besides just taking -- paraphrasing -- I mean -- not
20 paraphrasing -- but cutting and pasting.
21 Q. And what criteria did you use in terms of
22 which deposition testimony you would take and put on to
23 this exhibit, what we have now marked as 5?
24 A. I just brought some illustrative points that
25 came to mind that I might have forgotten.
00027
1 That's about it.
2 I just looked at -- I wanted to make sure that
3 I understood what Mrs. Simpson was applying (sic) to
4 when she gave her deposition.
5 I pretty well had down what Mr. Simpson said.
6 And I thought it was important for me to look
7 at Kagel a second time and take out a couple thoughts
8 she said in her deposition just to have them, nothing
9 more.
10 Q. In doing your work, have you prepared any kind
11 of written report?
12 A. No.
13 Q. As you sit here today, do you think there are
14 any other documents that you would like to look at in
15 assisting you in rendering your opinion?
16 A. Not that I'm aware of.
17 Q. Do you think there is any more work that you
18 need to do to render an opinion in this case?
19 A. As of this point, no.
20 Q. Now, you were asked to consider the standard
21 of care and duties of the real estate agents involved in
22 this case and to see if their conduct met that standard
23 of care and duty?
24 A. That was my original charge.
25 Q. Have you had a subsequent charge?
00028
1 A. I have had a relief of duty on one of them. I
2 understand that Mr. Rea he is out of that, and I was
3 asked very early that, whenever that happened, I
4 wouldn't be -- so I didn't put any time in his position
5 as an agent, and, in fact, a dual agent and that imputes
6 some of his -- well, to Coldwell Banker and to
7 Ms. Kagel, dual agents, but I didn't specifically look
8 at his and make opinions as to his conduct.
9 Q. And you have no opinion as to his conduct as
10 you sit here today?
11 A. That's a hard one.
12 It's hard not to think as I was reading that,
13 if I were there, what might have been, but I don't
14 really -- I didn't formalize any opinions.
15 Q. You do have some opinions regarding Lou Rae
16 Kagel?
17 A. Yes, I do.
18 Q. Can you describe for me those opinions?
19 A. Sure.
20 I felt that she, basically, fell down below
21 her duty of the standard in doing a proper inquiry of
22 her seller on several material facts that needed to be
23 disclosed or were disclosed but were disclosed
24 improperly.
25 Q. Anything else?
00029
1 A. Well, let me think for a second, because that
2 is pretty all encompassing.
3 I felt that her documentation on some of the
4 material facts was lacking.
5 Q. Anything else?
6 A. Some are tricky.
7 On the dual agency situation, since she is a
8 dual agent, she had duties to both buyer and the seller
9 as did Coldwell Banker, and, because of that, I had to
10 look at whether that caused her to do some of the
11 respective duties that a single agent might have done
12 for the buyer, and I looked at that, and, based on that,
13 I feel that she probably should have made some types of
14 general recommendations or recommended to her seller
15 some general recommendations be given to the buyer in
16 the nature of some of the material features of the
17 property that she didn't.
18 That was pretty compound.
19 Q. Okay.
20 As a result of this dual agency, Ms. Kagel
21 should have made some general recommendations to the
22 seller about further disclosures; am I paraphrasing
23 correctly?
24 A. Yes.
25 And also, basically, through the seller to the
00030
1 buyer or the buyer's agent.
2 Q. Now, when you say "dual agent," are you saying
3 that Ms. Kagel was a dual agent?
4 A. Yes.
5 Q. And so she had fiduciary duties to
6 Mr. Simpson?
7 A. Absolutely.
8 Q. And how did Ms. Kagel become a dual agent?
9 A. By being in the same office and under the same
10 license as Mr. Rea. There was only one broker in this
11 transaction.
12 I have to go back and look at the contract,
13 but I think that's definitely what they designated.
14 Q. And anything else -- any other opinions you
15 have regarding the standard of care or duties of
16 Ms. Kagel?
17 A. Nothing comes to mind at this time.
18 Q. Okay.
19 Let me go through these step by step, then, if
20 I could.
21 A. Please.
22 Q. One of the things you mentioned was that
23 Ms. Kagel's documentation was lacking --
24 A. Right.
25 Q. -- and in some respect, I take it, you believe
00031
1 that Ms. Kagel failed to adequately perform her duties
2 by having inadequate documentation, correct?
3 A. It's sort of a spin-off of the fact of what
4 was represented to the buyer and what she did in her
5 materials. Some of them were very important, and I
6 think that a prudent agent would have probably made some
7 notations as to where or how they got information that
8 they used in their marketing materials and also related
9 to the buyer.
10 Q. What documentation are you referring to,
11 marketing materials?
12 A. I would think that they -- the square footage,
13 the acreage, the wiring for the Internet -- I'm losing
14 it here -- if I remember the term -- optical --
15 Q. Fiber optics.
16 A. -- fiber optics, those were unusual.
17 And the out building, visual inspection should
18 have caused her to wonder where and how they could have
19 fitted on that property. I would have thought she would
20 have made some notes somewhere as to where she got the
21 information and how -- made a legitimate inquiry. I
22 didn't see them at all.
23 Q. I'm not sure that answered my question.
24 You said her documentation was lacking.
25 The documentation you are referring to is the
00032
1 marketing materials?
2 A. That and any type of log that would show that
3 she verified or she had related -- done a proper inquiry
4 of the seller on these issues.
5 It's all oral, and what we have now here is
6 we're in litigation and the trier of fact has to
7 determine that.
8 An agent should properly have made some good
9 notes as to where they got the information from, and I
10 didn't see it.
11 Q. You never saw any notes that Lou Rae Kagel
12 took down about conversations she had with her seller?
13 A. I read, and I don't remember any specific
14 notes, and in her deposition I don't remember her
15 referring to any, or anybody's deposition.
16 Q. So, in your opinion, she should have
17 documented in note form what the seller had told her
18 about attributes of the home?
19 A. Certain attributes.
20 Unique attributes, specialized use of the
21 property affecting the desirability and value.
22 Q. So, in your opinion, the standard of care
23 requires a real estate agent, when they're meeting with
24 their seller and the seller is describing aspects of the
25 house, that the agent must keep written notes of what
00033
1 aspects of the home are being described?
2 A. I think sometimes -- I think a prudent agent
3 would, depending on the nature of what's -- what the
4 material fact is.
5 If there's a street in front of the house and
6 it looks like it's the county that owns it, I wouldn't
7 be making a note, but if somebody told me that it was
8 privately owned and that there might even be a
9 maintenance agreement, I think I would make a note about
10 it in my log.
11 This situation we're talking about, wiring
12 that is highly unusual, we're talking about putting a
13 lot of square footage on a piece of property that
14 visually you would have to wonder where is it going to
15 go on the property, through the transaction, as somebody
16 said in the deposition, changing as they go on along,
17 going from an acre to two-thirds of an acre to less than
18 two-thirds of an acre, and the square footage of the
19 house is shrinking. I think that would be red flags to
20 ask further questions about does that affect this or
21 that, and a prudent agent would probably note these
22 things.
23 Q. You keep using the phrase "prudent agent."
24 What do you mean by that?
25 A. The prudent agent is the words you stay away
00034
1 from when I'm on the other side of the fence, which
2 means prudent agent is something you will expect an
3 agent to do on the duties.
4 So when you're on this side of the deposition,
5 the prudent means it should have been done.
6 Q. You're saying the standard of care requires it
7 to be done?
8 A. I think it's in one of the descriptions
9 indicating I believe it's 2,079. That uses the word
10 prudent.
11 Q. And agents, in a general sense, need to be
12 prudent; is that true?
13 A. Yes, sir.
14 Q. And in this case you say to be prudent
15 Ms. Kagel should have taken notes of facts told to her
16 by the seller?
17 A. Certain. Certain facts.
18 Q. And the failure to do that means that she did
19 not act prudently?
20 A. And by not acting prudently she fell below the
21 standard of care that she was required to be a prudent
22 agent documented.
23 Q. And where do you derive this standard of care
24 or the notion that a prudent agent keeps notes? Is that
25 written down somewhere or is that a standard in your
00035
1 industry; where do you get that?
2 A. It's a standard in my industry, and having had
3 some 200 agents and what their practice is and being a
4 broker and a professional and seeing what they do, and
5 being trained by one of the best agents of being a
6 prudent agent, being fair, that's standard of care.
7 Q. Can you refer me to any particular
8 publications of any trade group that you're part of,
9 anything like that, that says that the standard of care
10 requires an agent to keep notes of what they discuss
11 with the seller?
12 A. I can only talk to you about having taught
13 real estate principles and practices for seven years,
14 that part of my curriculum would be saying the standards
15 when they are getting a license is a common practice of
16 the instructor, the old phrase when in doubt disclose,
17 and if you have any doubt, put it in writing, and
18 something of a material fact you always reduced it to
19 writing.
20 Q. And is that something you carry out in your
21 practice?
22 A. Yes.
23 And, to be fair with you, my standard of care
24 is probably higher than most because of my training, but
25 I would say, still, the standard of care out there are
00036
1 rules of what a prudent agent should be.
2 Q. Maybe I misunderstood.
3 Your prior testimony, I thought what you said
4 was you don't keep notes when you talk to people.
5 A. No; no.
6 In this case, this type of work, I don't
7 because I have a very good -- I shouldn't say that -- I
8 feel I have a pretty good handle of what I read, and my
9 father also taught me not to do that, so I don't do
10 that.
11 Q. Your father taught you not to write down notes
12 as an expert witness?
13 A. Yeah.
14 Q. Why is this?
15 A. He said the only time you do that is if you
16 want them to ask you to write it and they'll ask.
17 If you want them not asking beyond what you're
18 asking.
19 So that is what he trained me.
20 In the transaction I do copious notes, I
21 document every email and everything, keep a copy, but
22 I'm not talking about practices as an expert.
23 Q. So, as a real estate professional, you would
24 keep copious notes; as an expert you don't trouble with
25 that?
00037
1 A. I will write a sheet of notes up on a very
2 complicated case and I'll keep refining it, like
3 Mr. Barkan does, I'll write down some things.
4 One thing I didn't do here -- you made me
5 close my computer. I'm very bad at names, so I don't
6 remember names, but I'm pretty good about factual
7 nature, but something complicated, I'll start doing an
8 outline of it.
9 This case, to me, isn't that complicated.
10 Q. So which facts in particular, if you have any
11 in mind, should Lou Rae Kagel have documented by notes
12 which were things she received from the seller,
13 information she received from the seller?
14 A. Inquiring of the seller as to the lot size,
15 since it ultimately didn't comply with what was used,
16 from an acre down to less than two-thirds of an acre.
17 When they started shrinking, I would probably would have
18 asked what she used for that. I would ask for per
19 seller, so if somebody asked for what the lot size is,
20 they know it didn't come from the assessor or appraiser
21 but it came directly from the seller's mouth.
22 I would think if you start putting in optical
23 wiring like that, that is expensive and so highly
24 unusual that you might say to the seller, "Do you
25 have -- who put it in? Was there a qualified expert?
00038
1 Do you have a bill for that separately, subcontractor we
2 could pass on to the buyer?" I would like that for my
3 file. That was the way I would handle inquiry
4 documenting it.
5 I think, if you put on your brochures and
6 flyers that you can build another 800 square feet of
7 living space and a pool, this you would ask your seller
8 through a diligent inquiry, "What do you base that on?
9 Have you got approvals on it?" You know, how should I
10 qualify it? I would have some measure of something that
11 important when I put it on there, I would have done a
12 really good inquiry of my seller, and then I would put
13 it in my log and make sure, to protect the seller and
14 myself, I would be handing it to any prospective buyer
15 when they got to the disclosure part of the contract.
16 So -- I think that answers your question.
17 Q. Okay.
18 So you say Ms. Kagel, to be a prudent agent,
19 should not only have kept a log of what the seller told
20 her, but that log needs to be handed to the buyer?
21 A. Not necessarily the log, but relevant
22 information, like -- if they are pulling out of their
23 hat what the square footage is, I would make sure that,
24 at a minimum, as per seller, they acknowledge acreage is
25 per seller's information, and that would have identified
00039
1 to me, as buyer's agent, "Can you give me a copy of what
2 you used for it? How did you come up with it?"
3 If the square footage was off, I would want to
4 know where the seller got it, was it from a set of
5 plans, was it off a tax record, can it be inaccurate
6 somehow?
7 Something unusual like that or something that
8 has a real -- it's a real flag to me, it should be a red
9 flag to the agent for anybody's benefit, trigger me to
10 ask questions.
11 Should I put it in a log? Yes. Did I ask
12 questions? I put it in my log to verify when I put it
13 on a flyer that I have information I would pass it on to
14 the client. I wouldn't necessarily give him the log,
15 but the log would trigger -- some of these things I
16 would have put on the broker, to be quite frank, as per
17 seller, square footage as per seller, building, pool,
18 whatever. It's too open and too broad for a layman like
19 these buyers that have never put a pool in. From my
20 knowledge of reading, I would presume that, unless there
21 was something unusual came up, that I could probably
22 build a normal pool, probably put some kind of building,
23 maybe it ends up being a barn, I know I could put
24 something on there, but because of the impervious use of
25 this property, they were already over it.
00040
1 Q. Well, let me try and focus you on maybe one
2 issue and see if I can understand what you're telling
3 me.
4 A. Absolutely.
5 Q. Do you understand that Lynn O'Brien told Lou
6 Rae Kagel that the house in question had fiber optics?
7 A. I don't understand that.
8 I understand the trier of fact is going to
9 have a hard time figuring out who gave the same
10 information. I didn't get that out of her reading.
11 Q. Did you see the testimony of Lou Rae Kagel
12 where she said the information regarding fiber optics
13 was provided to her by Lynn O'Brien?
14 A. I saw that.
15 Q. Okay.
16 Do you have any reason to believe that that
17 statement is not true?
18 A. Do I have any reason to believe -- then I
19 would have -- that would give me a reason to believe
20 that I didn't believe the seller, then, and one was
21 telling the truth and one wasn't.
22 Q. What did the seller say that caused you to --
23 A. Could I have my original cut and pasting?
24 Q. Sure.
25 A. Let me see here real quick.
00041
1 Just one second here. I had the particular
2 thing. One second. I didn't have a chance -- because
3 of the hour, I didn't get a chance to write down who was
4 who but....
5 Sorry.
6 Okay.
7 I'm sorry, could you repeat the question just
8 one second?
9 MR. KOSS: Can you read it back, please
10 (Discussion off the record.)
11 MR. KOSS: Q. Let me ask you, Mr. Deutscher:
12 Do you have any reason to believe that the information
13 regarding fiber optics did not come from the seller to
14 Ms. Kagel?
15 A. Yes. Based on the readings, I saw several
16 times the question was asked by, I think it was
17 Mr. Minoletti asked, and she said over and over again
18 that she never -- never told Ms. Kagel that there were
19 fiber optics, there was CADD 5, but she had never told
20 her there was fiber optics on the property.
21 And the original question was do I believe
22 Ms. Kagel, and I said then I would not be able to
23 believe Ms. O'Brien if I did that.
24 Q. Okay.
25 If Ms. Kagel did have notes indicating that
00042
1 she was told by Lynn O'Brien that, in fact, the house
2 had fiber optics, would that change your opinion?
3 A. It would change part of my opinion.
4 Q. What part would it change?
5 A. It would change that she documents something
6 that showed that it was -- that she did a proper inquiry
7 of it but she didn't pass on the information -- she did
8 not state to the potential buyer, the buyer ultimately,
9 where she got the information from.
10 Q. And why is that significant, to tell the buyer
11 where the information came from?
12 A. Because that leads them to believe one way or
13 another whether they need to do more further
14 verification.
15 Q. On the fiber optics, did you read
16 Mr. Simpson's testimony where he questioned Mr. Rea
17 certainly prior to close of escrow saying he doubted
18 there was fiber optics in the house?
19 A. I don't -- I read that deposition.
20 I don't remember him saying that he doubted,
21 but, I mean, that's not to say that he didn't say that.
22 I don't remember that specifically.
23 Q. In a situation like this where -- you
24 understand the seller was a developer?
25 A. Depending on your definition, yes, she did
00043
1 that more than once.
2 Q. And you knew the seller had built this
3 particular home, correct?
4 A. Yes, sir.
5 Q. Is Ms. Kagel entitled -- assume for the moment
6 that Ms. Kagel is told by the seller that the house has
7 fiber optics.
8 Is Ms. Kagel entitled to rely upon that
9 information from the seller without doing additional
10 investigation?
11 A. Investigation being inquiring of the seller?
12 No.
13 Going outside and hiring somebody to verify
14 it -- maybe I said that backwards.
15 She isn't required to go out and get someone
16 else to verify it, but she should do proper inquiry as
17 to who did it and how they did it, because this is -- I
18 think this is an unusual thing that I never had sold a
19 house with that.
20 Q. You've never sold a house with fiber optics?
21 A. Never.
22 I don't know if I have ever been in a house
23 with fiber optics.
24 Q. So, in your opinion, for Ms. Kagel to meet the
25 standard of care, if she had been told the house had
00044
1 fiber optics, she should have followed up and asked who
2 was the contractor who installed it and that type of
3 thing?
4 A. To ask follow-up questions, I think it would
5 be very prudent to.
6 "Do you have any materials on this? Did you
7 have a competent professional do it? Does it require
8 any kind of an extra permit or something" -- I don't
9 know enough about it to even know what -- I would have
10 to start somewhere, because I don't know anything about
11 fiber optics.
12 I have ran into this problem and other people
13 run into this problem with satellite dishes. You find
14 out they put it in the site, they don't own the
15 satellite dish. The question should be, "Did you
16 install it? Is it your own?"
17 Just because a person says they have a
18 satellite dish, it's really supposed to stay with the
19 property.
20 This is a very sophisticated thing we're
21 talking about and very expensive item.
22 Q. Using your example, if the seller says, "I
23 have a satellite dish," you might doubt that, as a real
24 estate agent, based on your experience that people don't
25 always own those --
00045
1 A. I look at the disclosure, do you have a
2 satellite dish, and they mark that, I assume it stays
3 with the property.
4 My follow-up question would be, "Do you own
5 it?" because they'll put it down whether they own it or
6 not, and that's a very unsophisticated situation, but it
7 used to happen all the time, that people would -- all of
8 a sudden they say they're taking away the dish that
9 shows it to go with the property because it's on the
10 features sheet.
11 Q. So you're saying the seller may not know the
12 true aspects regarding the features of the house?
13 A. I think it's worthy of a proper inquiry
14 because it's unusual.
15 If I saw gravel in front of the property, I
16 would ask them, "Do you have a street agreement? Do you
17 own the street?" I wouldn't presume because they didn't
18 know to tell me. It's prudent to ask them.
19 If someone spent a fortune to wire a house
20 that is highly unusual, then I would ask questions,
21 especially if I'm going to represent to the public
22 noteworthy of a features list, I think I would have
23 asked some basic questions.
24 Q. I think I understand where you're coming from.
25 What you're saying is in this case, when the
00046
1 developer/contractor/seller says the house has fiber
2 optics, Ms. Kagel should doubt the veracity of that
3 statement and make sure further inquiry is made of
4 whether the seller knows what they're talking about?
5 A. I don't know if I would say doubt.
6 She should make further inquiry. I think I
7 would just make sure they knew what they were talking
8 about, what I was selling.
9 Q. And are you suggesting that any time a seller
10 says, "My house has fiber optics," an agent, to be
11 prudent, should doubt that statement?
12 A. Another example is I go --
13 Q. No; no.
14 How about the question I just asked, not some
15 other example?
16 A. Okay. I'm trying to give an example.
17 Say the question again, please.
18 Q. Sure.
19 If you can read it back for me, please.
20 (Question read.)
21 THE WITNESS: I would say I change the
22 statement to be I think -- I wouldn't use the word
23 doubt. I would do a further inquiry.
24 MR. KOSS: Q. In your mind, sir, if a seller
25 says to an agent, "My house has fiber optics," that
00047
1 raises a red flag to the agent that the house really
2 doesn't have fiber optics?
3 A. It raises the fact that I would want to know
4 more about it, yes.
5 And I won't give you any examples.
6 You know, we're talking about practices in
7 this whole thing. That's the whole thing, standards of
8 practice as well as duties. It's one thing to be a
9 theoretician, but if you're out in the front lines and
10 these things come up, that's where the practice comes
11 in, and a red flag is something significant, not just a
12 water stain on the ceiling, it's something unusual.
13 Q. I agree with you, sir, and you're saying
14 Ms. Kagel needs to make a proper inquiry of things that
15 appear to be a red flag, as the agent, correct?
16 A. Yeah. I'm using probably. I shouldn't -- red
17 flag has a connotation after the Easton case that it's a
18 water stain, but I think it's something that heightens
19 your need to do further inquiry. It's just something by
20 its nature suggests you do further inquiry.
21 Q. What is the red flag in the situation where
22 the seller says, "My home has fiber optics"?
23 A. It is the fact that it's highly unusual, that
24 it's very specialized, it has a specialized purpose.
25 Without being an expert, I imagine it takes a specialist
00048
1 to put it in. I don't understand how to use it. It has
2 to be made out of glass fiber. You could have -- as far
3 as work properly, installed properly, you need to know
4 how they did it, who did it and how they did it, make
5 sure it's done right or it was even done.
6 In this case there is a dispute whether it was
7 CADD 5 or fiber optics, and most people don't know the
8 difference between the two if you asked them.
9 Q. So are you suggesting that the standard of
10 care would have required Ms. Kagel to follow up and find
11 out who installed it, the quality of installation, those
12 kinds of things?
13 A. I would have wanted to ask some qualifying
14 questions, "Did you have a certified person do it?" or
15 "Just who did it and how did they do it?" anything to
16 give me the feeling this -- number one, it was
17 definitely done, and, number two, the buyer, if they had
18 a good agent, would ask -- I think a prudent agent would
19 ask that on both sides of the coin.
20 Q. Do those follow-up questions relate to all
21 mechanical systems in the house?
22 A. I think when you hit something unusual, sure.
23 Q. Can you --
24 A. I think an example would be radiant heat. How
25 many people put radiant heat versus a forced air? I
00049
1 would -- if I found out somebody installed a radiant
2 heating system, I would inquire to find out.
3 Q. So, to be prudent, an agent should follow up
4 to find out if the radiant heating system was properly
5 installed?
6 A. No, that's not what I'm saying.
7 I'm saying I think it would generate some
8 questions.
9 A radiant heating system was just repaired. I
10 think you would be below the standard up in Rossmoor to
11 say by whoever is a listing agent, because it takes a
12 person with certain specific knowledge how to fix it.
13 Q. That's different question because it's fixing
14 the system.
15 If somebody says, "My house has radiant heat,"
16 that is a red flag for a seller's agent to follow up on?
17 A. As to radiant heat, if this holds them out to
18 is be an expert, in Rossmoor it is.
19 Q. Why in Rossmoor?
20 A. Because a lot of the old units and a lot of
21 the Eichler homes in Walnut Creek and -- I would know
22 right off the bat, if people saw radiant heat, we have
23 some issues to check out immediately, because of the
24 problems I'm aware over the years with radiant heating.
25 Q. The issue isn't simply of having radiant heat;
00050
1 the issue from your knowledge --
2 A. If I wasn't an expert, I would definitely need
3 to ask questions about what is radiant heat and what
4 does it need to be fixed, because I didn't know.
5 In this case, it's optical fiber. How many
6 people have heard of a house having optical fiber? Who
7 puts it in? I don't know anybody. It's highly unusual.
8 Q. So, in this case, in your opinion, it's your
9 opinion, in essence, Ms. Kagel is negligent in not
10 following up with the seller to find out more about this
11 fiber optics?
12 A. I wouldn't call it negligence.
13 I would call it falling below the standard of
14 care as an agent.
15 I'm not an attorney. I'm not going going to
16 talk about negligence.
17 Q. Do you have any reason to believe Ms. Kagel
18 had any actual knowledge that the house did not have
19 fiber optics?
20 A. No more or no less than the air conditioning
21 in the third unit, the out building, which she said it
22 did. I don't really know.
23 Q. I'm not sure you answered my question. I'll
24 ask it again.
25 Do you have any reason to believe that
00051
1 Ms. Kagel knew this house did not have fiber optics?
2 A. Prior to the close of escrow?
3 Q. Yes.
4 A. No.
5 Q. Maybe we should just address these two things
6 at once, because you said documentation was lacking,
7 correct?
8 A. Yes.
9 Q. And another thing you said was proper inquiry
10 of the seller.
11 Do those kind of go hand in hand?
12 A. Yes, sir.
13 You do the latter first and the prior second.
14 Q. Right.
15 You make proper inquiry and then you document
16 that, correct?
17 A. Sure.
18 Q. One of the items that was represented to
19 Mr. Simpson was that the property had sufficient space
20 for an 800-square-foot structure.
21 Do you recall that?
22 A. Yes.
23 Q. Do you have any reason to believe that Lou Rae
24 Kagel did not get that information from the seller?
25 A. By the seller's testimony, it wasn't quite
00052
1 clear, because what she said in her deposition was "or,"
2 I believe. She wasn't quite clear, but I thought I read
3 "or," "a pool or 800," so, no, I don't.
4 Q. Do you know whether or not a structure can be
5 built in the back of the Simpson property?
6 A. At this point in time --
7 Q. Yes.
8 A. -- or at what point in time?
9 Q. At any point in time.
10 A. Are you -- with the pool --
11 Q. Yes.
12 A. -- or without the pool?
13 Q. With the pool.
14 A. As far as my reading goes, they couldn't.
15 Q. Do you know why; what's your understanding of
16 that?
17 A. Because the impervious percentage of the
18 property has been utilized and they wouldn't be allowed
19 by the city to do it.
20 Q. Do you know if the limitations on impervious
21 surfaces are different in Monte Sereno than they are in,
22 say, Walnut Creek?
23 A. I don't know at all. I would have to go down
24 and check it out.
25 Q. Do you know what the impervious surface
00053
1 limitations are in Walnut Creek?
2 A. No.
3 Q. Do you know what they are in Danville?
4 A. No.
5 Q. Do you know if there even are such regulations
6 in either Walnut Creek or Danville?
7 A. I'm sure there are.
8 Q. Do you know what the impervious surface
9 limitations are in Monte Sereno?
10 A. I did.
11 I don't remember at this time, but I did when
12 I read it three weeks ago, I remember the percentages
13 they said.
14 Q. Do you have any reason to believe that at the
15 time this Blanchard property was being marketed that Lou
16 Rae Kagel was aware of the impervious surface
17 limitations in the City of Monte Sereno?
18 A. She was aware of them?
19 Q. Yes.
20 A. No.
21 Q. Is it your understanding that, but for the
22 impervious surface limitations, you can, in fact, build
23 another structure on Mr. Simpson's property?
24 A. I don't know if there was a setback issue; I
25 can't remember. I remember that was discussed in
00054
1 deposition. So I don't know where they would be placing
2 it.
3 As far as any kind of general restrictions,
4 I'm not aware of any.
5 Q. Assuming -- I want you to assume for the
6 moment that Ms. O'Brien told Lou Rae Kagel that the city
7 says, "Space in back sufficient for additional
8 800-square-foot structure."
9 Is Ms. Kagel entitled to rely upon what her
10 seller is telling her?
11 A. I'm sorry, the first part of the question was
12 the city told her that or the seller told her that?
13 Q. I'll try it over again. I'm trying to read
14 directly from the brochure.
15 A. I don't have very good hearing, by the way.
16 Q. If you don't hear me, you just let me know. I
17 don't want you to start answering unless you hear the
18 question. That's in one of the ground rules we didn't
19 go over.
20 Do you recall that one of the things in the
21 brochure said, "Space in back sufficient for additional
22 800-foot structure"?
23 A. Yes.
24 Q. I want you to assume that that information
25 came from O'Brien to Ms. Kagel?
00055
1 Is Ms. Kagel entitled to rely upon her seller?
2 A. Could I look at the brochure one second?
3 Q. Sure.
4 A. If that was stated to her as factual, yes.
5 Q. She could rely on that?
6 A. She could rely on the fact that -- she could
7 put it down. I would probably put down "as per seller,"
8 but yes.
9 Q. And to satisfy the standard of care, would she
10 have to document somewhere that that is where that
11 information came from?
12 A. Yes.
13 Q. But she wouldn't necessarily have to show
14 that, then, documentation to a buyer that this is where
15 that information came from?
16 A. Only if she wanted to protect herself.
17 Q. And I guess that's what I'm kind of leaning
18 towards.
19 A prudent agent, to protect themselves, may
20 want to write this down so they can document later that,
21 "Hey, this idea about the city wasn't my idea, it was
22 seller's idea," they might want to document that?
23 A. Right.
24 Q. How does that protect the buyer, to document
25 that the agent has gone through the extra step to cover
00056
1 the agent's back side?
2 A. How does it protect the buyer?
3 It's just one more level of verification that
4 is factual and you don't end up -- hopefully, if you
5 have honest people, you don't end up in a situation
6 where the seller says, "I didn't say it," and the
7 listing agent says she said it.
8 Q. Well, in terms of Mr. Simpson, we don't have
9 to doubt that it was said. It was in writing, wasn't
10 it?
11 A. Yes, sir.
12 Q. So what difference does it make to Mr. Simpson
13 whether or not Lou Rae Kagel made a document notation
14 that says, "I learned this from Ms. O'Brien"?
15 A. It just proves that she did actually do it.
16 It helps to prove, at least.
17 Q. And if Ms. Kagel could establish that, in
18 fact, that information came from her seller, then
19 Ms. Kagel has met the standard of care?
20 A. Well, she has as an agent.
21 I don't know if she has as a dual agent.
22 Somebody had to strongly recommend that
23 Coldwell Banker -- or make sure they were aware that
24 they should go down as a buyer with open eyes to verify
25 this stuff.
00057
1 Q. Somebody should have advised Mr. Simpson that
2 he should have gone to the city and checked this out?
3 A. Yes. A buyer's agent has, in my opinion, that
4 duty to strongly recommend that you go down and check
5 this out with CDC, how you can use the property.
6 In this case, the buyer's agent and the
7 seller's agent are both agents for the buyer and seller,
8 they're dual agents, so I would impute that both of them
9 had that responsibility to make sure that happens
10 somehow.
11 Q. Would Ms. Kagel have satisfied her duty if she
12 had told Mr. Simpson, "You should go down and check the
13 zoning and other potential uses of this property"?
14 A. If she did adequately inquire of -- adequately
15 inquire of the seller and it happened between her and
16 Mr. Rea, I think that would satisfy it.
17 Q. Maybe I need to back up, because I thought you
18 said earlier that Ms. Kagel was entitled to rely upon
19 Ms. O'Brien's statement, if they were made, that you
20 could put this 800-square-foot structure in there.
21 Are you saying Ms. Kagel had further duties to
22 inquire?
23 A. That's where dual agency comes in.
24 She's also agent for buyer -- dual agency
25 is -- makes it more complicated, because they both are
00058
1 fiduciaries to both sides, so -- because they are under
2 the same umbrella. And what you usually do in a dual
3 agency situation is you try and divide up the babies or
4 baby and responsibilities, but it doesn't necessarily
5 relieve one baby from the other baby if the agent
6 doesn't do what they're supposed to do, but it doesn't
7 release the listing agent if the buyer's agent doesn't
8 do something they are supposed to do. They are both
9 fiduciaries, so how do you cover something?
10 (Recess.)
11 MR. KOSS: Okay. Back on the record.
12 Q. I think, as we left off, I was asking about
13 whether or not Ms. Kagel had a duty to make further
14 inquiry of the seller regarding this issue of
15 800-square-foot structure and then you said that's where
16 the dual agency comes in.
17 As a dual agent, did Ms. Kagel have a duty to
18 make inquiry?
19 A. Of who?
20 Q. I don't know. Of somebody.
21 A. I think it was reverse.
22 I was saying that, as a dual agent, she had,
23 probably, responsibility to make sure that a
24 recommendation happened on the information.
25 She already had the duty of inquiring of the
00059
1 seller to begin with.
2 Q. So once she, Ms. Kagel, gets this information
3 about the additional 800-square-foot structure that
4 supposedly could be built out there, her duties require
5 her to advise Mr. Simpson that he should what, make
6 further inquiry with the city?
7 A. That should have happened between her and
8 Mr. Rea.
9 If Mr. Rea didn't do it, she was still just as
10 responsible because they are both still duals.
11 Q. So, actually, both Mr. Rea and Lou Rae Kagel
12 should have advised Mr. Simpson to go check this out?
13 A. Well, I would have, as a dual agent, expected
14 that the buyer -- the one that was representing -- not
15 representing the buyer but took on the responsibility of
16 handling the buyer's side of it, would have done it. I
17 would have probably made sure, if I didn't see it
18 happen, that, since that's my fiduciary, I would have
19 reminded them of that, I would have made sure it was in
20 there pretty strongly, in this situation probably more
21 than just boilerplate.
22 Q. When you say do "it," you mean advise
23 Mr. Simpson he should make further inquiry?
24 A. Right.
25 Q. You would agree that the agents don't have any
00060
1 duty to go down to the city and do an investigation and
2 that sort of thing?
3 A. Not for the last 15 years.
4 Q. Did you have any reason to believe that Lou
5 Rae Kagel, in publishing these marketing flyers, had
6 actual knowledge that you could not build a
7 800-square-foot structure in the back of the property?
8 A. No.
9 Q. Do you have any reason to believe that
10 Ms. Kagel had actual knowledge that the impervious
11 surface limitations of the City of Monte Sereno would
12 make it impossible to construct improvements in the back
13 yard of the Simpson property?
14 A. I wasn't really clear whether she really
15 looked at the plans or not.
16 If she hadn't looked at the plans, no.
17 Q. If she has actual knowledge, she needs to be
18 forthright with that knowledge, correct?
19 A. Yes.
20 Q. Okay.
21 And, in your opinion, does Ms. Kagel have any
22 duty to go find plans and review plans?
23 A. No.
24 MR. KOSS: Let me turn this off.
25 (Discussion off the record.)
00061
1 MR. KOSS: Q. There is an issue in this case
2 about the square footage of the house.
3 Did you notice that?
4 A. Yes, sir.
5 Q. Did you notice that Mr. Simpson was aware of
6 the issue regarding square footage before he even made
7 an offer?
8 A. Yes, sir.
9 Q. Did you see that the agents recommended to
10 Mr. Simpson that, if this was important to him, that he
11 should go measure the property professionally?
12 A. I believe I read that somewhere.
13 Q. Do you believe that Lou Rae Kagel somehow
14 failed to meet the standard of care with regard to the
15 square footage issue?
16 A. Ultimately, no.
17 Q. I take it what you would say is initially,
18 yes?
19 A. If they had made the recommendation, because
20 they didn't get it factual a couple of times.
21 Q. You have been involved in transactions that
22 from time to time, through human error, there are
23 mistakes made in a brochure, correct?
24 A. Yes.
25 Q. That by nature is going to happen?
00062
1 A. I don't know if I would say that.
2 I know people that never get anything wrong in
3 their brochures, but it happens.
4 Q. And if there is an honest error, that could,
5 nevertheless, be below the standard of care, correct?
6 A. Yes.
7 Well, wait.
8 It depends on what you mean by "honest error."
9 If they did their job right and they misread
10 something, then that's an honest error.
11 If they didn't do it right and put it down,
12 that's not an honest -- it's an honest error, but it's
13 still below the standard of care.
14 Q. In any event, you feel comfortable that at the
15 end of the day Ms. Kagel met her standard of care with
16 respect to the square footage of the property?
17 A. And you're talking about living area?
18 Q. Yes.
19 A. I don't have a problem with that issue.
20 Q. Okay.
21 MR. THOMAS: Wait. Does that mean yes, she
22 met it or --
23 THE WITNESS: I hate to say it, but yes.
24 MR. KOSS: Q. From your answer, are you
25 suggesting you have an issue with the square footage of
00063
1 the lot?
2 A. Yes.
3 Q. And what is your issue with that?
4 A. The issue is she kept getting it wrong, and,
5 obviously, it does affect the amount of square footage
6 that could be built on and what the value of the
7 property is to the buyer when they're basing their offer
8 and resale.
9 Q. What do you mean when you say she kept getting
10 it wrong?
11 A. I know it was originally thought to be an
12 acre, and I thought I read it was thought to be
13 two-thirds of an acre, and then I think it got to about
14 26,000-something square feet, which was not even
15 two-thirds of an acre.
16 Q. To your understanding, what is the actual
17 square footage of the lot?
18 A. I would have to look it up again, but I think
19 it's 26,000-something.
20 I figured out on my sheets something, it was
21 on the mathematical thing, it came out to 6.1 or
22 something, if not 6.66 of an acre.
23 Q. Is 26,000 approximately two-thirds of an acre?
24 A. I got to get my math -- can I use my
25 calculator?
00064
1 Q. Sure.
2 A. And if it's not, it's going to end up being
3 24.
4 (Witness using calculator.)
5 43560 divided by 26 -- I'll probably get it
6 backwards, but let's see what it is.
7 (Discussion off the record.)
8 THE WITNESS: 5.968 acres is what my
9 calculator says, on the record.
10 And I think whatever number I used -- I
11 thought I had 6.1 somewhere on that note sheet I did
12 somewhere somehow, but -- I could look it up for you. I
13 know it's in there, tells me what it was.
14 Q. In your mind, is that approximately two-thirds
15 of an acre?
16 A. No.
17 Q. It's materially different?
18 A. Yes.
19 Q. What does "approximate" mean? How far off can
20 you be and still be approximately?
21 A. I would say .66, point six- -- it's relative.
22 It's just too far off to be two-thirds -- I don't know
23 what the cutoff -- I think .26, something like that.
24 It's close.
25 When somebody asks me is -- when something is
00065
1 2500 square feet and you tell them it's 2200 square
2 feet, that's not close. If you tell me it's 24 square
3 feet or 23, I would say that's close but it's not good.
4 Q. Two-thirds of an acre is how many square feet;
5 can you do that math for me?
6 A. Absolutely.
7 (Witness using calculator.)
8 29 -- if I did this right, I used point
9 seven -- excuse me -- .67 -- 29185.
10 If you want me to do it exact right, I'll do
11 it exact right, go six six six.
12 Q. To your understanding, have you seen any
13 written representations that the property was nearly an
14 acre?
15 A. I don't remember seeing that.
16 I remember reading it somewhere, but I don't
17 remember seeing it.
18 Q. Well, you call the assertion about one acre
19 you said was Mr. Simpson, he said he saw it onn a flip
20 chart somewhere?
21 A. That's what he said.
22 Q. And you saw the brochures on the property all
23 said approximately two-thirds of an acre?
24 A. Yes.
25 Q. Were you aware that Mr. Simpson knew of this
00066
1 discrepancy before close of escrow?
2 A. I believe so.
3 Q. Did you also see that the agents, in essence,
4 advised Mr. Simpson that, if the size of the lot was
5 important to him, he should have it professionally
6 measured?
7 A. I just don't remember whether that was done
8 during the discovery period, the inspection period, or
9 at the end of the deal.
10 Q. Well, let me show it to you.
11 Let me show you deposition Exhibit 8 from
12 Mr. Simpson's deposition.
13 A. Well, I was right, 26,000.
14 You had me worried there for a minute.
15 Q. By the way, did you see that on MetroScan the
16 house was shown to be, I believe, 2800 square feet --
17 28,000 square feet?
18 MR. MINOLETTI: You mean the lot?
19 MR. KOSS: The lot, yes.
20 THE WITNESS: I don't remember that, to be
21 quite frank, to be honest with you.
22 MR. KOSS: Q. In any event, showing you
23 Exhibit 8, do you now recollect that Mr. Simpson knew
24 well before the close of escrow there was a discrepancy
25 in the lot size as described in the building plans as
00067
1 opposed to the advertised two-thirds of an acre?
2 A. Yes.
3 This was generated by Mr. Rea?
4 Q. Either Mr. Rea or Mr. Simpson; I don't recall
5 who.
6 A. The reason I thought Mr. Rea because it didn't
7 come from the seller's side because it says Addendum to
8 Contract. Sellers don't usually create those.
9 Q. And did you see the seller's response to that
10 inquiry?
11 A. Could I see it again?
12 Q. Let me show you Exhibit 16.
13 A. I have seen these but --
14 Q. Right. I'm just trying to refresh your
15 recollection on the evidence.
16 A. (Witness reviewing document.)
17 Q. And in number 2 it says, "Seller advises" --
18 number 2 on Exhibit 16 says, "Seller advises buyer to
19 verify to his satisfaction all sizes concerning the
20 square footage of the buildings and the property," and
21 it goes on to refer to item B in the contract.
22 Do you see where I'm reading from?
23 A. Yeah. Yes, sir.
24 Q. You're familiar with that item B on page 6 of
25 the standard form contract?
00068
1 A. Yeah, but I still would like to look at it
2 again.
3 Q. I'm going to show you the exhibits from
4 Mr. Simpson's deposition you brought today and I'll
5 refer you to deposition Exhibit 1.
6 It's on page 666, item B, Size and Age.
7 A. Okay, I'm looking at B.
8 Oh, yes, absolutely.
9 That's what I thought it was.
10 Q. In your opinion, sir, should Ms. Kagel have
11 done anything in addition to setting forth the advice we
12 see on deposition Exhibit 16, number 2?
13 A. Done in addition?
14 She should have done her homework before this
15 even came up so this wouldn't have had to be generated,
16 but I can't speak to Mr. Rea's part of the solution to
17 this.
18 This is a reaction to what happened that
19 shouldn't have happened and it's improperly filled out,
20 same as other forms in here, but I presume it has to do
21 the subject property.
22 Q. Yes, it is.
23 A. Because there is no date, no city, no
24 identification. It's poorly written. So I guess the
25 first thing I would say is it should be written
00069
1 properly, and it's standard of care to reduce to writing
2 to protect the clients. But this is a reaction to the
3 fact that the buyer found out things late in the game
4 instead of the beginning of the game, so at that point
5 in time I don't know what they could have done except
6 wrote it properly.
7 Q. To your understanding, where did the
8 description of nearly -- or approximately two-thirds of
9 an acre, where did that come from?
10 A. It came from the brochure.
11 Q. And do you know where the information was
12 derived from to put it in the brochure?
13 A. Either at the reading of what the square
14 footage -- no, I don't know for sure. I don't remember.
15 I know the facts, but I'm not sure on that one.
16 Q. Would it be below the standard of care for a
17 seller's agent to rely upon the seller when the seller
18 advises the agent as to the square footage of the lot?
19 A. If you didn't ask the seller his source.
20 Q. Is it appropriate for the seller's agent to
21 just put down "per seller" in describing the square
22 footage of the property?
23 A. On the multiple it is and on the factual sheet
24 it would be.
25 I don't know that it would be a proper
00070
1 inquiry, but it would be appropriate. At least you
2 would be red flagging the source. Hopefully the other
3 agent would ask where they got it from.
4 Q. If in this case Mr. Simpson discovers that the
5 lot size is smaller than the approximately two-thirds of
6 an acre and he discovers that before close of escrow,
7 does he have certain remedies that he can pursue?
8 A. I would have to -- based on the cases I have
9 read, I would say that's up to an attorney, not me, to
10 opine on.
11 Q. Well, he can ask for a reduction of price
12 based on the fact he was told two-thirds of an acre and
13 it wasn't --
14 A. I think he can do it afterwards, but I'm not
15 an attorney.
16 Q. So, in your opinion -- well, strike it.
17 You don't know because you're not an attorney?
18 A. I have read things that can go either way on
19 that, but I'm not an attorney. I could even be wrong
20 about that, the way I read them.
21 (Discussion off the record.)
22 MR. KOSS: Q. Do you have any reason to
23 believe that at the time Lou Rae Kagel put together the
24 marketing brochure she had actual knowledge that the
25 property was not approximately two-thirds of an acre?
00071
1 A. No.
2 Well, I can't remember whether she actually
3 looked at the -- the tax record. I think she did. If
4 she did, then she knew it wasn't.
5 I can't remember; I would have to go back and
6 review that.
7 Q. I need to find my brochure.
8 Here we go.
9 One of the issues in this case is the ability
10 to build a pool on the property.
11 Do you understand that?
12 A. Yes, sir.
13 Q. Do you have any quarrel with Ms. Kagel's
14 conduct with respect to that issue?
15 A. Well, you couldn't, so I would presume to have
16 a problem. I guess if you have to go back and tear out
17 what is already there and restructure just to get a pool
18 on the property, I have a problem with that.
19 Q. Well, what do you remember the representation
20 to be regarding the pool; what words were used?
21 A. "Possible."
22 Q. Possible pool?
23 A. Possible pool site.
24 Q. Isn't there a possible pool site at the
25 Simpson property?
00072
1 A. There probably is in every house if you tear
2 the existing structure down, you might get one in every
3 site. They did that in this case, they had to change
4 the driveway and get a variance from the city to do it,
5 so it became possible. I guess you can go to every
6 property, you can tear something out and get one.
7 Q. By "possible pool site," doesn't that suggest
8 there may be some difficulties or conditions or cost or
9 other things that may make it difficult, maybe even
10 impracticable?
11 A. It makes -- when I see -- normally see
12 "possible pool site," it usually means to me that you
13 probably can have a normal pool there if you go through
14 the right municipality and get approvals, unless there
15 is something that jumps up at you, not the fact that
16 you've used up all your space in the place.
17 Q. Well, we have already discussed that.
18 You don't have any reason to believe that
19 Ms. Kagel had any knowledge about impervious surfaces
20 that might obstruct improvements to the property; isn't
21 that true?
22 A. Other than the fact that if she had looked at
23 the plans, which I said wasn't her duty.
24 Q. Do you have any reason to believe at the time
25 this representation is made about a possible pool site
00073
1 that Ms. Kagel had actual knowledge that there wasn't a
2 possible pool site?
3 A. No.
4 Q. Do you have any reason to believe at the time
5 Ms. Kagel was making these representations about a
6 possible pool site that she knew that, in order to
7 construct a pool, hardscape in other areas of the
8 property needed to be removed?
9 A. No.
10 Q. And I take it you would agree that Ms. Kagel
11 had no obligation to go down and see what steps and
12 procedures and processes were going to be required by
13 the City of Monte Sereno?
14 A. No duty.
15 Q. If the agents had suggested to Mr. Simpson
16 that he ought to go down and investigate future uses of
17 the property such as installation of a pool, would that
18 satisfy their duties?
19 A. If the agent -- it would depend on what they
20 were -- okay.
21 Would you read that again?
22 Q. Sure.
23 Let me back up one other step.
24 Do you have any reason to believe that Mr. Rea
25 knew that you would have to take up hardscape in order
00074
1 to put in a pool?
2 A. No.
3 Q. Okay.
4 Would Mr. Rea have any obligation to go down
5 to the city and figure this out?
6 A. Not unless he had told the clients he would do
7 that on their behalf.
8 Q. And, as best you know, he never said that to
9 Mr. Simpson?
10 A. No, not to my knowledge.
11 Q. Certainly, if he agreed to take on that task,
12 that falls below the standard of care, doesn't it?
13 A. Yes, or get somebody else to do it for him,
14 yeah.
15 Q. To your understanding, did Mr. Simpson know
16 that, in order to put in a pool, he had to tear out
17 hardscape?
18 A. Not until after the fact.
19 Q. So then we have Mr. Simpson and the two
20 agents -- at least you're willing to concede none of
21 them knew about this issue what do the brokers need to
22 do to satisfy their standard of care concerning this
23 issue, none of them know about?
24 A. Probably if one of them had done a proper
25 inquiry of seller then the buyer could make an
00075
1 intelligent decision and it would have either heightened
2 or unheightened the value according to the city.
3 I mean, there are a lot of times people say
4 these exact same things and they don't do it because
5 they are relying on what is told to them as being
6 factual or possible and they chose not to go down and do
7 it.
8 I'm not saying the buyer doesn't have a duty.
9 I'm not here to opine on the buyer's duty because 2709
10 opines because I'm here for agents.
11 Buyers have the duty to look for themselves,
12 according to 2709.
13 Q. In your opinion, do agents satisfy their
14 duties by advising the buyer in situations like this
15 that he should go to the city and make inquiry about
16 specific uses that he intends to make of the property?
17 A. It depends.
18 Q. It depends on what?
19 A. The situation.
20 It depends on why they're doing it. It
21 depends on what's going on.
22 If -- in this situation, things come up after
23 the fact and then they make a recommendation, the buyer
24 may just be feeling they are CYA's themselves. If there
25 is a legitimate concern and the principal realizes the
00076
1 agent has some concerns, that might heighten the
2 buyer's -- it's like whether you're strongly
3 recommending, you're recommending or you're just using
4 boilerplate. It's degrees.
5 Q. Okay.
6 I need to go back.
7 To your understanding, are there any facts
8 here that suggest to you that Ms. Kagel had any doubts
9 that there was a possible pool site?
10 A. No.
11 Other than looking at the physical nature of
12 the property and wondering, if she had any experience of
13 selling houses, how much space normally a municipality
14 they would allow visually would be a red flag.
15 I haven't seen the property so I can't tell
16 you.
17 Q. Well, you saw the testimony of people -- I
18 think virtually everybody said the agents pointed out to
19 Mr. Simpson where he could put a pool and he put a pool
20 in exactly that spot.
21 Do you recall that testimony?
22 A. Yeah. That was after he made changes to the
23 property.
24 Q. I understand.
25 He changed some hardscape, didn't he?
00077
1 A. Yeah.
2 And they made an exception for him, too.
3 Q. Do you have any reason to believe that these
4 agents could have -- there was some red flags that
5 should have led them to anticipate that there would be
6 this problem?
7 A. Being -- putting a pool in, you mean?
8 Q. Yes.
9 A. I didn't see the property. I can't tell you
10 on that one.
11 Q. If there's no red flags that appear to any of
12 the agents, or, indeed, to the buyer, isn't a
13 boilerplate kind of recommendation to the buyer that,
14 "Look, you ought to go check out any future usages of
15 this property, you ought to check them out," isn't that
16 sufficient?
17 A. I would have no problem if there weren't two
18 items said at the same time. It wasn't just "or." It
19 was both. It was a pool and a distal out building.
20 That, to me, would have been, in my mind, the
21 combination a red flag. If you said to me "a pool" --
22 and I haven't seen the property -- I might have -- I
23 don't know what I would have done. I would have to see
24 the property.
25 When you put it in a combination, it, to me,
00078
1 may signal a lot of lot space.
2 I don't know if I answered you properly.
3 Q. I'm trying to break it down, because it's
4 really the only way to deal with both problems is to do
5 them one by one.
6 A. Okay.
7 Q. And I guess what I'm looking at specifically,
8 just focusing on the pool situation, I think you're
9 agreeing with me, are you not, that there was, at least
10 to your knowledge, no red flags to either of these
11 agents that Mr. Simpson after close would incur some
12 problem with impervious surfaces?
13 A. The way you just did it, I would have to say
14 yes because of the fact of the way you framed it that
15 time, I go by the brochure, it says two things, a pool
16 site and that.
17 The question if there was only a pool site
18 would I see a red flag, maybe not, but two things, yeah.
19 Q. So you can't separate them?
20 A. Well, they're -- that's what the brochure
21 said. It didn't say and/or. It says both.
22 I don't know how I can unseparate them. It
23 was a package thing. These things you can do, so to --
24 wow, this is a lot of stuff, red flag.
25 If you just said pool site, I would emphasize
00079
1 a little more what the agent's position to say, well, if
2 it's that close, maybe it's a municipality that is being
3 picayune, I can rely on my seller. I would have to look
4 as what was on the page together.
5 Q. Let's deal with them in conjunction.
6 What is the red flag with respect to the
7 statement that you could put in a pool and a
8 800-square-foot structure?
9 A. Well, I didn't visualize this, but it sounds
10 like a heck of a lot of stuff on one piece of property
11 anywhere that size.
12 Q. And what is the red flag?
13 A. The red flag is it looks like a lot of stuff
14 you can put on that size, and if you do a diligent
15 inquiry with the seller, like we started two hours ago,
16 and find out what you base these recommendations on, if
17 that's what the agent put in flyers and stuff, "Where
18 did you get this information?" and, "Where did you get a
19 possible pool site? How did you come up with this? Did
20 you just look in the back yard and say, 'Hey, that looks
21 good, possible pool site'?"
22 If I went to a house with a good sized lot, I
23 might not sweat it as much.
24 If you put two things, I might sweat it more.
25 Q. You haven't seen the site, have you?
00080
1 A. No.
2 Q. And, in your mind, two-thirds of an acre is
3 not big enough for these two additional structures, pool
4 and another structure?
5 A. I would have to see it. The way cities are, I
6 would have to see it.
7 Q. So maybe if you saw it, you might think there
8 is maybe not a red flag here after all?
9 A. I can't say that until I see it.
10 Q. So, in your mind, if there was a red flag,
11 what should the agent have done?
12 A. First thing would be how -- "What do you mean
13 there's a possible pool site, Mrs. Seller? Where did
14 you get that from? Did you do any preliminaries? Did
15 you have a pool company go down and talk to the city and
16 find out what they think, not get a permit but did
17 anybody do any research as to, you know, in any way, to
18 even go down for five minutes and ask them what they
19 think?"
20 Q. So where Ms. Kagel fell down is she should
21 have made further inquiry of Ms. O'Brien?
22 A. I feel so.
23 Q. Anything else she should have done?
24 A. Well, in conjunction with the buyer's agent,
25 being a dual, I probably would have, instead of
00081
1 boilerplate like, oh, you said strongly put that down on
2 a sheet like that, but, unfortunately, it happened after
3 the fact, after the fact this stuff started popping up.
4 It should be discovered in the beginning of the deal,
5 and goes down and it's part of an addendum to TDS. It
6 wouldn't be inspection but it could be addendum or
7 disclosures.
8 Q. We have tried to take these two things in
9 conjunction, documentation was lacking and proper
10 inquiry of seller.
11 I think I have gone through them all, but you
12 tell me, but have we gone through all the opinions you
13 have where Lou Rae Kagel failed to make proper inquiry
14 of the seller?
15 A. We talked about the fiber, we talked about the
16 pool, we talked about the out building.
17 Yeah, I think we talked about it all.
18 Q. Any other issues regarding documentation
19 lacking other than what you told me about?
20 A. I just noted some things that weren't squared
21 around, they were sloppy, like no date on the TDS, like
22 the numbers didn't add up on the contract itself for the
23 purchase price. Things like that. That was pretty
24 sloppy. That was below the standard of care to have the
25 amount of money put down and everything put down was
00082
1 more than the offer on the contract.
2 Q. Anything else?
3 A. As I said earlier, the addendums weren't
4 properly filled out, which that's below the standard of
5 care.
6 Q. Where did you see that the numbers on the
7 contract --
8 A. Maybe I was just tired when I looked at it,
9 but if you add it up, it comes out to be, like, 3.4, the
10 offer was at three that Mr. Rea wrote. Add up the
11 numbers on the left side, 1.4, 400,000 deposit, 1.5
12 loan, that's 3.3, I think it totals down on the bottom
13 3 -- add up the numbers.
14 Is that a 4?
15 Q. I think that's supposed to be a "1". I think
16 he wrote a check for a hundred thousand dollars.
17 A. I thought that was a 4.
18 Q. It kind of looks like it.
19 A. Last night reviewing, I asked somebody, "Is
20 that a 4 or what?"
21 If it's a "1," she didn't make a mistake; just
22 looks like a 4.
23 Just did my reading.
24 Not trying to be picky. You just asked me.
25 Q. I want you to be picky. I want you to tell me
00083
1 everything you saw you didn't like.
2 A. And I think the TDS didn't have a date as to
3 when it was good for either.
4 It was circled, too.
5 Up at the top.
6 Q. Yeah, I'm looking for it.
7 A. I think it was just blank.
8 At least on the one I had. They may have
9 corrected it later in another set.
10 Q. In any event, have we now covered all issues
11 regarding the lack of documentation?
12 A. I believe so.
13 Q. One of the things you testified about early on
14 was you had issues about dual agency.
15 What is your opinion regarding that?
16 A. We sort of covered it.
17 It's kind of hard being only one agent, and
18 I'm not being -- I wasn't asked to look at it, but, like
19 I said earlier, they are not a listing agent and a
20 selling agent from two different companies, they are
21 both from the same company, and maybe in the eyes of the
22 buyer and seller each taking a different assignment, but
23 in the eyes of agency, they are both representing each
24 side, and so if one drops the ball, then they are really
25 both dropping the ball. If there is a function that is
00084
1 supposed to happen, like a strong recommendation to do
2 something, like you pulled out the sheet later in the
3 game on that, if one doesn't do it, the other should be
4 aware of it, because they are still duals.
5 Q. You saw where Mr. Simpson put in writing he
6 was very happy with the work of Doug Rea; you saw that?
7 A. Yeah.
8 Q. Do you have criticism of Mr. Rea's work?
9 A. I really didn't spend the time to think that
10 one through.
11 I think sometimes in these cases that one
12 party may upset a principal, another not, and the
13 principal puts on those glasses and doesn't want -- I
14 would have personally brought him in this case, I would
15 have definitely bought him in. I'm not an attorney
16 but -- I would have done that. I think it's inputted to
17 both these, both duals, there are certain things that
18 would have happened sooner than later, but I wasn't
19 really asked to form an opinion.
20 Q. And, in your opinion, Lou Rae Kagel was a dual
21 agent?
22 A. Absolutely.
23 Q. Was Coldwell Banker a dual broker?
24 A. They would be a dual agent, called a dual
25 agent also.
00085
1 Q. On what basis do you conclude that Lou Rae
2 Kagel is a dual; are there any statutes you looked at?
3 A. Can I see the contract just a minute?
4 I feel I should look again to make sure I'm
5 talking about the same case here.
6 A. Okay.
7 There you go (indicating), as per law, one to
8 four units, single family, both representing
9 buyer/seller, that is the definition of a dual agent.
10 Q. Where are you reading from?
11 A. The agency, Coldwell Banker, agency. It says:
12 Coldwell Banker, Coldwell Banker, seller's agent, both
13 buyer and seller. That is a dual; that is what a dual
14 is.
15 Q. Well, I understand it says Coldwell Banker.
16 Why do you then conclude that Lou Rae Kagel is
17 a dual?
18 A. Because they're inseparable. You impute one
19 to the other. They are both -- how can I say it better?
20 They are not a single agent because there is
21 dual agency.
22 On the buyer's side you can either be nothing,
23 because the law says that only a seller, if there is a
24 listing, has to be represented. On the listing side,
25 the seller has to be represented.
00086
1 This case, they took the most option, which is
2 we will represent both. That means both. Where it says
3 Coldwell Banker, it says both. They had only one
4 broker's license there, period.
5 I taught this. I don't know how to say it
6 clearer than that.
7 When one broker is responsible for both sides
8 of the contract, unless they designate seller
9 exclusively, then you're a dual agent. You were
10 subagents in the old days -- there are no subagents. So
11 Lou Rae Kagel is working as the arm of Coldwell Banker,
12 inseparable. And the other arm is Rea, and by
13 definition of dual.
14 I wish I had an agency form because on the
15 back it defines duals. I don't have the verbiage
16 memorized, but it says it pretty clear that that's what
17 they are.
18 Q. I am going to give you some of the disclosures
19 that were given -- strike that.
20 Any other opinions you have regarding the dual
21 agency issue?
22 A. None other than the fact that what can be
23 imputed from one can be imputed on the other. If one
24 doesn't pick up the ball, then it falls on them because
25 it's the same company.
00087
1 Q. And are there issues that you have with Lou
2 Rae Kagel as a dual that you would not have with her if
3 she was not a dual?
4 A. Well, the recommendation part on these things
5 to get the stronger inspection from her would have been
6 heightened if she had -- as a dual versus being a single
7 agent.
8 That's about all I can say.
9 Q. Well, let me show you some of the disclosures.
10 A. Sure.
11 Q. Are you familiar with -- well, let me show you
12 what is marked as Exhibit 25 to Mr. Simpson's deposition
13 and ask if you read through that document?
14 A. Several times.
15 Q. Now, when you're representing buyers, do you
16 make similar types of disclosures to buyers, the
17 preprinted type form?
18 A. I use the CAR version, which encompasses plans
19 and specifications.
20 Q. Why do you use that form?
21 A. Hopefully, it will insulate me.
22 Q. This isn't just pro forma. It's designed to
23 give important information to your buyer, isn't it?
24 A. It is, but, as I was sitting in deposition two
25 days ago, the gentleman on the other side of the table
00088
1 said, "I never read any of this stuff. They told me
2 just to sign it." That doesn't play as well in court.
3 It's even better if you have a pertinent issue
4 like square footage, initial it. That makes it
5 stronger. The other way is all encompassing, nobody
6 reads it. That's what she said in court.
7 Q. You wouldn't tell your client, "Hey, this is
8 boilerplate," but you've got to give it so you don't
9 minimize it, do you?
10 A. Me personally?
11 Q. Yes.
12 A. I would go through pertinent things and I
13 would read it carefully, but if there is something I
14 don't want coming back on me, I would have them initial
15 it or I would go through and check-mark things and show
16 I spent time.
17 As to standard of care, I don't believe people
18 do that. So I want to be fair; I don't think they do
19 what I do.
20 Q. Does the standard of care require that the
21 agent go through line by line and have people initial --
22 A. You can say, "It's boilerplate, but please I
23 don't want you to read it. Let's sit her for a minute
24 and why don't you ask me any questions you have here
25 that you find difficult." That would be the standard of
00089
1 care, not just put it in front of them and say, "Sign
2 it."
3 Q. Well, let me start with the first disclosure,
4 and it says, "Any representations by sellers or brokers
5 regarding age of improvements, property size, building
6 size or location of property lines may not be accurate
7 and should not be relied upon."
8 A. What number are you?
9 Q. Number 1?
10 A. Oh, I see. I'm sorry. Skipped the top.
11 Right.
12 Okay.
13 Q. Certainly, sir, if an agent knows of
14 representations that are inaccurate or a broker knows of
15 any representations that are inaccurate or an agent
16 knows it, they have an obligation to give the true
17 information, don't they?
18 A. Absolutely.
19 Q. In the absence of that kind of knowledge that
20 something being represented is wrong, doesn't this
21 recommendation to a buyer satisfy the standard of care?
22 A. If you just hand it to somebody and there was
23 no conflicting visuals or anything else and they
24 actually read it or you made sure to them the importance
25 of it, probably not.
00090
1 Did I say it in the negative?
2 Q. I think you did.
3 It would satisfy?
4 A. I would agree with whatever you said, whatever
5 it was.
6 Q. This would be sufficient in the absence of
7 actual knowledge of things being wrong?
8 A. If they actually made the attempt to do this
9 and there wasn't any heightened awareness of issues.
10 Q. Maybe you mentioned something -- I remember
11 you mentioned something about a diligent visual
12 inspection, correct?
13 A. Yes.
14 Q. So what you're saying is the agent has to
15 disclose not only what they know but what they could
16 have seen but through a reasonable diligent inspection,
17 correct?
18 A. Yes.
19 Q. Are any of the things we talked about here in
20 your mind the kind of inaccuracy that could have been
21 determined by a reasonable diligent inspection?
22 A. Like I said, putting the two different -- the
23 pool and that, having not seen the property, I don't
24 really know to answer that part of it, but, other than
25 that, no.
00091
1 I think you tend to take these things also
2 into consideration when somebody makes representations
3 to you and when somebody puts a piece of paper in front
4 of you and said possible pool site and another 600-,
5 800-square-foot building there, you can either take it
6 as a grain of salt or you can take it as, wow, they must
7 know what they're talking about. So, again, it's in the
8 eye of the beholder when they look at this in this
9 situation.
10 Q. Let me direct your attention to number 2.
11 It says, "Buyer should confer with an
12 architect/city/county officials regarding present future
13 availability for permits of construction additions,
14 other building projects and current or future use of the
15 property."
16 Do you see where I'm reading from?
17 A. Yes, sir.
18 Q. That's sound advice to a buyer, isn't it?
19 A. Yes, it is absolutely sound advice whether it
20 even applies.
21 Q. For instance, in this case, when we have a
22 representation possible pool site, wouldn't that be
23 sound advice to tell your buyer, you know, "Maybe you
24 want to go check out with the city to find out what you
25 can do"?
00092
1 A. Absolutely. In fact, I would have written in
2 the addendum, and particularly if I took out a pen like
3 this and circled it, make sure they understood it,
4 absolutely.
5 Q. Does this disclose number 2 we're looking at
6 here satisfy the standard of care for advising a buyer
7 that they ought to go check things out, such as a
8 possible pool site?
9 A. Depending on the scenario, you might have to
10 go a little bit farther and make it a strong
11 recommendation.
12 I mean, this is all encompassing, this is a
13 million different things, and a lot of them isn't
14 going -- aren't going to apply -- as you were asking me
15 about strong visual inspection or other factors, there
16 are things that could make you have to memorialize it a
17 little stronger than this.
18 Q. So maybe put a red ink circle around it,
19 something like that?
20 A. If I were the buyer's agent, I would,
21 definitely.
22 If I were a dual agent, I would do it,
23 definitely, maybe a star, make sure they go over it, but
24 on the listing side, it's the weaker.
25 Q. Would putting a red star by the number 2,
00093
1 would that not satisfy agent's obligations in this case?
2 A. I would think that it would show that my
3 practices were as a prudent agent that I made them aware
4 this is something they should definitely consider, even
5 though there are twenty different things here, this is
6 obviously something you should be aware.
7 The reality is out of 20 people, how many of
8 them read that when they get it from Coldwell Banker?
9 Maybe one, two.
10 That's the reality.
11 It's not to say it's a bad form. It's just it
12 is reality. It's a trust-me kind of environment out
13 there or you guys wouldn't have business.
14 I want to make sure I can prove heightened
15 awareness of what I'm pointing out rather than just 28
16 different items.
17 You add up these forms together for a
18 principal and they get lost.
19 Q. So what are you suggesting, if the
20 principal -- if there are so many forms and the
21 principal, i.e., the buyer, doesn't read them, then they
22 can blame agents for problems that the agent didn't know
23 about either?
24 A. I would think some of the explanation is who
25 is telling the truth and who -- tell what -- if you can
00094
1 show you circled this and they initialed it, I would
2 think you have proof that you told them they should
3 check it out, especially if it's an 800-foot structure
4 and pool, that would be in a court of law better yet,
5 strongly advised, they and I decided not to, that's the
6 best way. Insurance companies are doing that now.
7 Q. Let me show you deposition Exhibit 24.
8 Have you seen this document?
9 A. Yes, sir.
10 Q. Are you familiar with this sort of document?
11 A. Yes.
12 I have a similar one that I use, too.
13 Q. And why do you use this document?
14 A. So I can circle the responsibilities of the
15 buyer and the seller on there and they can tell me I
16 didn't go over it. That's why I use it.
17 Q. One of the things you would circle is to
18 advise the buyer that the buyer should just not rely on
19 what sellers or real estate agents tell them about the
20 property?
21 A. Absolutely.
22 Q. Sometimes people could be mistaken, right?
23 A. (Witness nods head affirmative.)
24 Q. You're nodding "Yes."
25 A. Sorry.
00095
1 Yes.
2 Or they can just not be telling the truth or
3 they could be negligent or they could be not checking
4 things out.
5 Q. And you would tell them about the next
6 sentence that says, "Required written disclosures do not
7 at that time replace hiring expert inspectors to
8 evaluate the size, condition and use of the property,"
9 correct?
10 A. You're right.
11 A. It's a beautifully written document.
12 Q. Is this document sufficient to satisfy the
13 agent's responsibility to advise the buyer, in this case
14 Mr. Simpson, that he should hire inspectors to do a due
15 diligence investigation of the property?
16 A. I would think that, with the kind of issues
17 that they had about out buildings and com- --
18 combination out building and pool and fiber optics, I
19 would think he probably needs to go to the next level
20 and say, "You need to do this."
21 Q. Like something in handwriting to Mr. Simpson
22 saying, "Hey, you ought to hire some inspectors"?
23 A. Like they did later in the game.
24 Q. That's what I was going to get to.
25 You saw Exhibit 16, didn't you?
00096
1 A. I believe so.
2 That's the one with the recommendations?
3 Q. Yes.
4 And maybe I already showed that to you.
5 You saw Exhibit 16 where it says, "Brokers
6 recommend in handwriting that the buyer obtain
7 inspections," and that the buyer says he doesn't want to
8 do that?
9 A. Yes.
10 Q. And then they go on to say that's against the
11 broker's advice.
12 You saw that, too?
13 A. Yes.
14 Q. Do you have any doubt that Mr. Simpson would
15 have discovered every material aspect of this property
16 if he had simply done some due diligence?
17 A. No, I don't -- yeah, I do --
18 I mean, I don't have any doubt.
19 Q. What more should the agents have done than
20 say, "Hey, you got to do inspections," when Mr. Simpson
21 says he doesn't want to do inspections?
22 A. Could I see that again?
23 Q. Sure.
24 A. Well, it's a tough one, because this is late
25 in the game, this is after they found out that they
00097
1 didn't represent properly the square footage. This is a
2 great -- I mean, I don't know what they could have done,
3 written this differently.
4 I also know how a buyer could take it, and I'm
5 not going to take the case to relieve him of his
6 responsibility in this case because -- that's not my
7 job.
8 But it's a good CYA at this point.
9 Q. Well, that's what I would suggest to you, sir,
10 is that doesn't this now satisfy the agents' duties in
11 this case when they specifically advise Mr. Simpson in
12 writing to get inspections and he, against their advice,
13 doesn't do that?
14 A. What really would have helped is if they still
15 did a proper inquiry right then and there based on they
16 were finding out they were getting improper information.
17 The questions they should have asked, turned
18 to the seller and asked, "Where did you get this
19 information from? What are you relying on to tell me I
20 can get a pool and building? Why am I seeing on a big
21 billboard I can do all these things? Why are you
22 putting that down there?"
23 And I would direct it -- if I wasn't going to
24 direct it to the client, I would direct the inquiry to
25 the seller through the agents. If I specifically
00098
1 represented the buyer exclusively, I definitely would
2 have got a set of questions of that along with this.
3 But it doesn't stop the duty of inquiring.
4 That's a great way of doing it, but it doesn't stop you
5 doing your job.
6 And I started this three hours ago. She
7 didn't ask the question, "Where did you get this?" And
8 now they're saying square footage is wrong and other
9 things two or three weeks after the deal going and they
10 come up with the boilerplate thing. Great. Why didn't
11 they ask the questions now of the seller, put them in
12 writing, "What do you base the fact on we can put a pool
13 in? Have you done anything about it? Have you done any
14 inquiries about it? Why are you saying I can put an
15 800-square-foot structure on here? What are you basing
16 it on?" Then they would fully disclose between the two
17 things and we wouldn't be sitting here.
18 That's great. That's the way to do it. That
19 still doesn't relieve the duty to inquire.
20 Q. Have you answered?
21 A. I think so.
22 Q. I don't think it answered my question.
23 A. The question was does that relieve them of
24 their responsibilities.
25 And I said it does not relieve them, no,
00099
1 because they still didn't fulfill the obligation of duty
2 to inquire. That's like handing a blank statement after
3 you know something else is wrong. That's good after the
4 fact that something needs to be done.
5 MR. KOSS: The court reporter tells us she
6 needs a break, so let's take a break.
7 (Recess.)
8 MR. KOSS: Back on the record.
9 Q. Mr. Deutscher, you say you have something you
10 want to clarify?
11 A. Yes.
12 In the context you were asking me about
13 whether this covers the agents and the other
14 documentation, the thing that keeps jumping out at me --
15 MR. THOMAS: When say "this" covers, what are
16 you referring to?
17 THE WITNESS: I'm referring to the addendum.
18 It's not numbered.
19 16, Exhibit.
20 MR. KOSS: Q. Deposition Exhibit 16.
21 A. The boilerplate from Coldwell Banker.
22 What counteracts it in my mind is when I read
23 something that the unsophisticated buyer reads that
24 says, "City says space in back sufficient for additional
25 800-foot structure," that would positively reinforce me
00100
1 as a principal thinking this isn't going to be a big
2 deal, it would lower my awareness rather than heighten
3 my awareness that I need to protect myself.
4 So that kind of bothers me when you ask if
5 they put 16 in front of them and the Coldwell Banker
6 thing, whereas on the broker it implies or refers there
7 is some kind of predisposition that allows it.
8 Again, my inquiry would be, "Why did you put
9 this on? Where did you get this?"
10 Q. Let me see if I can clarify with respect to a
11 representation where the city says this is okay, this
12 kind of recommendation, disclosure, whatever you want to
13 call it, says you ought to go verify things with the
14 city, it doesn't rectify the problem?
15 A. It doesn't have the impact it would have if
16 that wasn't there.
17 Q. What about the issue of, like, possible pool
18 site; doesn't this disclosure address issues like
19 possible pool site?
20 A. It does, and if I take it in the context of
21 the whole, it looks like somebody did their homework
22 back here and talked to somebody and they're putting
23 information down that I should be able to rely on.
24 Q. Well, "possible" is not certain pool site, is
25 it?
00101
1 A. No. No.
2 Q. So, in that sense, when there is no actual
3 knowledge of difficulties in putting in the pool, which
4 we agree the agents didn't have -- right? -- and, as
5 best as you know without looking at the property, there
6 is no red flag that putting in a pool is a problem -- in
7 those sorts of cases, this kind of disclosure is
8 sufficient to satisfy the duty of the agents, that is,
9 "Please go check it out"?
10 A. It might be a stronger -- it might have a
11 stronger influence on that situation in the absence of
12 something like this in there.
13 I don't mean to get you off track.
14 Q. No. I'm happy for the clarification, because
15 I said early on you can't deal with all four or five
16 issues at once and then I try to deal with all four or
17 five issues at once.
18 A. Okay.
19 Q. Let me show you Exhibit 4, which is an
20 addendum submitted by Mr. Simpson when he made his
21 initial offer.
22 In your opinion, sir, does this lessen the
23 obligation of the agents or the seller to discover
24 issues regarding the property?
25 A. No.
00102
1 Q. Do you ever use addendums?
2 A. Yes.
3 Q. And, in your mind, what is the purpose of
4 them?
5 A. There's some -- their purpose is to try and
6 insulate you from liability from what might be
7 discovered, and they're usually used to make the buyer
8 think they are going to have to accept what you find out
9 during escrow, which turns out to be a non-reality in
10 the real estate market we have been in.
11 What I mean is people will go and offer as-is
12 and take it as a negotiating tool and when the
13 inspection thing goes through and they don't take them
14 as-is, it's not that they have material facts, they just
15 wanted to get in contract.
16 Q. So this is a tool used by buyers to try and
17 grind down price, if you will?
18 A. It could be used that way.
19 It can be the seller did the exact same thing,
20 to grind down the buyer to make sure they are not going
21 to be nickled and dimed to death also.
22 The reality of the situation is to totally
23 remove contingencies. Doesn't matter.
24 Q. And you knew also by this addendum Mr. Simpson
25 could do inspections of property, correct?
00103
1 A. Yes, absolutely.
2 Q. And if he didn't like what he saw in those
3 inspections, he could walk from the transaction,
4 correct?
5 A. Or renegotiate.
6 Q. Right. He could, in essence, say, "I have
7 found things I don't like. I'm walking unless you want
8 to work out a new deal," right?
9 A. He could have said that.
10 Q. Using an as-is clause, is it appropriate to do
11 the inspections after close and then, based upon what
12 you discover, try and get money back from the seller?
13 A. It's not the most appropriate -- it's not the
14 most desirable way, but if you find out that things were
15 misrepresented to you or you based your decisions on
16 information that wasn't fairly given, it might be the
17 only remedy.
18 Well, I shouldn't say it might -- it might be
19 a remedy.
20 Q. Directing your attention to paragraph three of
21 Exhibit 4, the last sentence, doesn't Mr. Simpson say
22 that he takes responsibility for obtaining full and
23 comprehensive inspections of the property by competent
24 professional contractors, inspectors and other experts?
25 A. Yes, sir.
00104
1 Q. Isn't he agreeing to do that by this addendum?
2 A. Yes, that's what it says.
3 Q. And, to your understanding, did Mr. Simpson
4 comply with his promise to do those type of inspections?
5 A. I don't think so.
6 Q. Does the failure of Mr. Simpson to comply with
7 his contractual obligations in the as-is addendum
8 relieve the broker's responsibilities they might have to
9 find out things about the property?
10 A. No.
11 Not the way you worded it.
12 Q. What effect does that contractual obligation
13 of his to inspect the property -- what effect does that
14 have upon the broker's obligations?
15 A. Heighten -- say that again. I'm sorry, I'm a
16 little tired.
17 Q. Sure.
18 What effect does Mr. Simpson's promise to do
19 full and comprehensive inspections -- what effect does
20 that promise have upon the broker's responsibilities?
21 A. None.
22 Q. What effect does that contractual obligation
23 of Mr. Simpson to do a full and complete comprehensive
24 inspection have upon the broker's obligations to make a
25 proper inquiry?
00105
1 A. None.
2 Q. So, in other words, in this case, when
3 Mr. Simpson fails to contractually do what he says he
4 was going to do, and that is make a comprehensive
5 inspection, he can, nevertheless, claim that the brokers
6 failed to make their own inquiry?
7 A. If they didn't do a proper -- people decide
8 what inspections to get and how far to go based on what
9 they know, and if somebody does a proper inquiry, that
10 may eliminate the need for an inspection or heighten the
11 need for an inspection.
12 Q. Okay.
13 But we've already discussed that the proper
14 inquiry would be to make further inquiry of the seller,
15 correct?
16 A. Yes, sir.
17 Q. Not to run around and go talk to the
18 government, anything like that?
19 A. Not unless they took it on themselves.
20 Q. Do you have any reason to believe that if
21 either Lou Rae Kagel or Doug Rea made further inquiry of
22 the seller, that there would have been any different
23 disclosure made in this case?
24 A. Do I have any reason to believe that by them
25 asking the seller some questions that it would have made
00106
1 any difference?
2 Q. Yes.
3 A. We'll never know.
4 Q. I think I've maybe got to the end of your
5 opinions, but let me ask it directly.
6 A. Okay.
7 Q. Any more opinions you have about the conduct
8 of either Ms. Kagel or Mr. Rea?
9 A. No, but I need to tell you that Paul --
10 Mr. Minoletti said that he wants me to at least go look
11 at the site, so I don't know how that affects, but he
12 would like me to go see it.
13 That's the only thing I would add to what you
14 just asked.
15 Q. I take it that was a discussion you had with
16 Mr. Minoletti in the hall?
17 A. Part of it.
18 Q. And is it correct that that discussion went
19 something like if you can't tell what red flags there
20 might be in the property, you ought to go look at the
21 property?
22 A. It's implied.
23 Besides that, it's a nice drive.
24 Q. Okay.
25 Do you have any doubts in your mind that
00107
1 you're going to to see those red flags when you go out
2 to the site?
3 A. I don't have any fact other than the reason
4 that I'm going to go, take a nice ride.
5 MR. KOSS: I don't have any other questions.
6 MR. THOMAS: I do have a few questions.
7
8 EXAMINATION BY MR. THOMAS
9 MR. THOMAS: Q. I know you said you were
10 tired.
11 A. I was faking.
12 Q. You were faking it?
13 A. I was kidding.
14 Q. Just following up on the last question, are
15 you going to do anything else that you know of other
16 than go look at the property in order to determine if
17 you have any other opinions?
18 A. No, other than maybe refresh myself at some
19 point on what I've read, and that's about it.
20 Q. What you read in terms of the documents you
21 already have?
22 A. Already have.
23 Q. Do you anticipate requesting any new documents
24 as a result of the deposition today that you may not
25 have had?
00108
1 A. No.
2 The only two things that I wished I had done
3 that I have not done that I don't know if it's
4 appropriate to do is one of the things I would have
5 liked to have done, without any names, which I haven't
6 done and usually do is talk to 18 brokers in my office
7 and give them a scenario and just ask them what they
8 thought the standards were, just to give a little
9 broader base.
10 Q. But you didn't do that?
11 A. I didn't do that.
12 And the other thing is I like to test the
13 attorneys on their thoughts, but I didn't do that
14 either.
15 Q. You read Randy Barkan's deposition?
16 A. Yes, sir.
17 Q. When did you get that?
18 A. Last night, late at night, by email.
19 Q. I didn't get that.
20 A. You got to request it.
21 Q. Now, if I understand what you're now doing,
22 you're office manager, office broker, designated broker
23 for Century 21?
24 A. I was.
25 They folded -- subsequently -- once I left,
00109
1 they folded.
2 That wasn't because of me, though.
3 Q. When did you cease being designated broker for
4 Century 21?
5 A. It's on my CV, but it was within a year of me
6 doing it in two thousand whatever.
7 I only did it for a short time.
8 Q. It says 2003 to 2004, Vice President of
9 Century 21 Heritage?
10 A. Right.
11 Q. So it was over a one-year or two-year period
12 of time?
13 A. Less than a year.
14 Q. And since that time you exclusively have been
15 acting as a licensed broker with the Executive Brokers
16 outfit?
17 A. Independent broker with them, yes, sir.
18 Q. But you're not affiliated or associated with
19 any real estate brokerage --
20 A. No.
21 Q. -- at this time other than Executive Brokers?
22 A. Right.
23 Q. And you haven't been since you left Century 21
24 Heritage?
25 A. Never again, no.
00110
1 Q. What happened with Century 21?
2 A. They didn't use my talents right.
3 They were -- the thing I didn't like is they
4 didn't give me the tools to do recruitment properly, and
5 I didn't like that, so I chose to -- I wanted -- I like
6 the liability, I like the training part, and they really
7 wanted to buy my name to get me recruiting people, and
8 that wasn't what I went there for.
9 Q. You had supervisory responsibility for the
10 agents at Century 21 when you were there; is that right?
11 A. Yes, sir.
12 Q. How many agents, approximately, generally
13 speaking?
14 A. Oh, I'd say 40 or something in the Lafayette
15 office. I don't know exact number. And then I would
16 get questions from the other five branches if somebody
17 had a commercial deal or they thought they had a
18 liability issue or they couldn't get their deposit back.
19 Right now I have been the head judge of the
20 Real Estate Board over several years, so I'm used to
21 doing arbitration ethics, so I'll get all those
22 questions.
23 Q. With respect to those 40 agents or so while
24 you were at Century 21, did you also have the
25 responsibility for review of transaction documents?
00111
1 A. Yes.
2 Q. And you would initial those?
3 A. Yes.
4 Q. Included in those transaction documents would
5 be purchase agreements?
6 A. Absolutely.
7 Q. Listing agreements?
8 A. Yes.
9 Q. TDS?
10 A. Yes.
11 Q. Supplements?
12 A. I would look at the file.
13 Initially, I would look at each file -- it
14 wasn't supposed to be my job, but it ended up being my
15 job.
16 I would look at each transaction at least
17 three times, when they opened it up, how they doing and
18 closed when you get paid.
19 Q. Would you review brochures?
20 A. Yes.
21 Q. Each and every --
22 A. I would look at the file, and if there is
23 something unusual about the property, I would have a
24 heightened awareness, see what they're doing.
25 I would see the brochures, but I wouldn't
00112
1 be -- I don't know how to answer that. Depending on the
2 sophistication of the agent how deeply I went into the
3 file.
4 Q. So is it fair to say that on some occasions
5 you reviewed brochures and others you didn't?
6 A. I would say I'd take a cursory looking as I'm
7 flying by it. If it was a new agent, I would really
8 look at it. If it was a specialty property, I would
9 really look at it. If it was a reasoned and normal
10 deal, I would be flying by it.
11 Q. Was there any time that you instructed your
12 agents to insert on a flyer or brochure such as fear
13 about the reliability --
14 A. Absolutely.
15 Q. -- of what was contained on the brochure?
16 A. Absolutely.
17 Q. And what is that?
18 A. This is deemed to be accurate but the buyer
19 should not necessarily rely on it and should verify for
20 their own possible use, something of that nature. I had
21 that on my flyers.
22 I would also look if they did something
23 unusual like saying this has a footprint for a lot. I
24 would tell them to say, "What do you mean by a
25 footprint? Does it mean you have working plans? What
00113
1 are you talking about?"
2 I mean, when something came up, I would take a
3 hard look.
4 Q. The first language you referred to, would you
5 call that --
6 A. I call it boilerplate.
7 Q. What is the purpose of that?
8 A. Hopefully, insulate you.
9 Q. Insulate you from what?
10 A. Screwing up on the sheet and making a mistake
11 and it would not be enough that would be get me off the
12 hook for making a mistake.
13 Q. Is that intended to put someone on notice that
14 it may not be entirely accurate?
15 A. I would say they're supposed to read it, but
16 they're supposed to.
17 I would make the point.
18 Q. Did you do training?
19 A. Yes.
20 Q. How often?
21 A. I taught three different modules, maybe four
22 to six weeks.
23 Q. This is for your agents at Century 21?
24 A. Yes.
25 Q. Okay.
00114
1 A. I would teach them the agency one. I would
2 teach them one having to do the disclosure, the whole
3 disclosure area.
4 Those are the two that I mainly did.
5 Sometimes I would do other ones for other
6 people, owners of the company.
7 Q. As an element of the agency module, would you
8 discuss dual agency?
9 A. Absolutely.
10 Q. What would you tell your licensees under your
11 supervision about dual agency?
12 A. I would most importantly tell them you need to
13 be able to read this form and stand in front of the
14 mirror and explain it to yourself in three to five
15 minutes. If you can't do that, then you shouldn't be
16 doing it with the client.
17 I would tell them this is to be done properly
18 immediately, if you want to determine to a client versus
19 a customer.
20 I would tell them that you need to be able to
21 explain -- well, I break it into three parts. You need
22 to understand it; you need to be able to explain it; you
23 need to be able to do it.
24 Q. What form are you talking about?
25 A. Agency disclosure, confirmation.
00115
1 I mean, dual agency, I've given probably 75,
2 80 classes for other offices, like Coldwell Banker, over
3 the last five years on how to do dual agency right or
4 don't do it at all.
5 Q. Let me ask you this: When you talk to or you
6 instruct your -- or when you did instruct your agents at
7 Century 21 about dual agency, did you instruct them that
8 if there is both a listing and selling agent from
9 Century 21 for a single transaction, that the listing
10 agent represented both the buyer and the seller?
11 A. Oh, yes, I made it absolutely clear.
12 Q. And that the selling agent represented both
13 the buyer and the seller?
14 A. Right.
15 Q. Under those circumstances?
16 A. Yeah.
17 Q. And --
18 A. I'm sorry.
19 Q. And what was the basis for that advice to
20 them, for that instruction?
21 A. My understanding of agency law.
22 Q. And do you have a specific case or treatise or
23 reference work that you refer to or rely upon?
24 A. I work from the fact that I was there at CAR
25 when they formulated the whole concept, as well as the
00116
1 TDS form I was there, and I was there when the form was
2 put together. I was asked to come and teach it to
3 several associations before it went into law, what it
4 meant. And, basically, have read a lot about it.
5 Q. Do you have someone at CAR you can talk to
6 about this issue?
7 A. About agency?
8 Q. About a single brokerage, when you have a
9 listing agent and a selling agent, that the listing
10 agent represents both the buyer and the seller and that
11 the selling agent represents both the buyer and the
12 seller as opposed to the broker being a dual agent?
13 A. Okay. You said a "single agent."
14 You mean "dual agent"?
15 Q. Dual agent.
16 A. Every time I have read anything by CAR I have
17 never had anybody tell me I was wrong on agency, and I
18 have talked to the best people there.
19 Q. Do you distinguish in your mind about the
20 broker as dual agent and the individual agents as dual
21 agents?
22 A. No.
23 Q. So you consider them one and the same?
24 A. The biggest issue I have had is where you have
25 the same brand but you're independently owned. I don't
00117
1 care if you're Better Homes in Walnut Creek and Better
2 Homes there, if you're owned by the same shop, take
3 different agents at different branches, you have the
4 same responsibility as one person.
5 Q. Let me follow that up.
6 When you have the dual agency situation you
7 described and you have a listing agent and you have a
8 selling agent under the same broker -- strike that --
9 you have all listing, what duty does the listing agent
10 owe to the buyer?
11 A. Well in the eyes of the law, they are
12 fiduciary. "Fiduciary" means not only to be fair and
13 honest with somebody else's client but you have the
14 highest level liability and trust, so, theoretically,
15 you have the same responsibilities.
16 Q. The same responsibilities as what?
17 A. As if there was only one agent in the deal.
18 But I think what happened in the practice is
19 that people have delegated parts of the deal to be
20 separate functions, but they really are the same deal,
21 they are just giving people different responsibilities
22 that if they're writing a contract, they have the
23 manager stand in and represent the other side and the
24 other person listens to the offer.
25 In the eyes of the law, they are still the
00118
1 same entity.
2 Q. That's your interpretation?
3 A. Yes.
4 Q. How do you explain to your agents that works;
5 does the listing agent call up the buyer and say, "Gee,
6 I think you ought to do X, Y and Z"?
7 A. It's very easy because the difference when you
8 are a dual agent versus single agent, your role changes.
9 When you are a single agent, you can make
10 strong recommendations. When you're a dual agent, you
11 give them a series of recommendations but you don't tell
12 them what to do.
13 Q. So there is a difference, then?
14 A. Yes, there are, and a lot of people don't
15 think they can do that, but that's where the third part
16 of it is, you have to act as a dual agent.
17 Q. Did you encourage at the time your agents at
18 Century 21 who were listing agents in a dual agency
19 situation with a different selling agent representing a
20 buyer, did you instruct your listing agents to make sure
21 you contact the buyer even though they are represented
22 by another agent and make sure you get a series of
23 recommendations to them?
24 A. I would, but, no, I wouldn't put it that way.
25 I would put it in the context of being a
00119
1 fiduciary, if he doesn't generate it, you need to be
2 sure it's generated.
3 Q. How is the listing agent, practically
4 speaking, going to know what verbal advice or
5 recommendations are given to the buyer by the selling
6 agent?
7 A. Well, it comes back in the form of forms for
8 disclosure.
9 Part is going to be hope they are trained
10 properly.
11 I mean, I don't have an absolute on that one.
12 If you only have one agent as dual agent is
13 going to be fair to both sides.
14 They have to handle exactly the same for both
15 sides.
16 Q. Well, let's flip that question.
17 Did you instruct your selling agents under
18 those circumstances to call the seller and make
19 recommendations to the seller?
20 A. No.
21 I would instruct them in the situation because
22 of protocol they have the other agent talk to the
23 broker.
24 The broker is the broker for same.
25 Q. The "broker," meaning whoever was in your
00120
1 capacity?
2 A. Right.
3 Q. But not to go directly to the seller?
4 A. I would instruct that even in single agency.
5 You never go to someone else's clients or whatever. The
6 company. I would still go to the broker; "This is how I
7 need help, help me here, step in."
8 Q. At what point in that dual agency situation
9 does the selling agent become a fiduciary of the seller?
10 A. He started from the minute that the deal was
11 presented, I guess.
12 Well, let me think that through.
13 I would say definitely when the contract has
14 been accepted.
15 No.
16 The minute relation was formed with either
17 part -- either side of the deal there are still now an
18 agency relationship with the company.
19 That could be in the minute they sign the
20 disclosure form and look at property and the buyer
21 started relying on them as a client -- as an agent,
22 rather, than just being sales person.
23 Q. So then at the time -- if I understand what
24 you're saying, at the time that the buyer executes an
25 agency agreement with an agent, that agent also becomes
00121
1 a fiduciary to the seller of the property?
2 A. There would be ostensible.
3 There is ostensible -- or whatever he said --
4 agency that, based on the way you've acted on your
5 relationship. It doesn't have to be in the form of
6 writing. It doesn't have to be writing.
7 If I got in the car, I started showing them
8 property and whatever, then I think an agency
9 relationship would be created with an agent and Coldwell
10 Banker.
11 Q. But I'm not talking about that.
12 I'm talking about the point at which that
13 individual agent becomes a fiduciary, not to the buyer
14 but to the seller.
15 Because you said they are both dual agents and
16 they are both fiduciaries to each other.
17 When does that selling agent become a
18 fiduciary to the seller?
19 A. I guess when he starts working on selling the
20 property, the minute he shows the property and starts
21 giving him information about a Coldwell Banker listing.
22 Q. And at that point that selling agent owes a
23 fiduciary relationship to the seller of the property?
24 A. He creates one.
25 I never -- I think he started creating it
00122
1 right then and there.
2 Q. Does that mean there is or isn't? You said
3 "started."
4 A. If he's the agent that put him in the car and
5 he starts showing him a property that is a Coldwell
6 Banker listing not independently owned by somebody else,
7 that's when it starts.
8 Q. Okay.
9 And then let's flip it around again.
10 At what point does the listing agent in a
11 situation where there -- as we described, become the
12 agent of the buyer, the fiduciary of the buyer?
13 A. These are interesting questions.
14 Buyer gets in the car with somebody and they
15 look at the house and they start relying -- I think they
16 start becoming a fiduciary as long as they have
17 knowledge of it when they get put in the car and showing
18 the house.
19 Q. What if they don't have knowledge of it?
20 A. It's kind of hard -- I don't know. I never
21 thought that through.
22 That's a great one.
23 Q. Let me ask you this: When a listing agent
24 gets information and puts it in a brochure and there is
25 no buyer agent yet, does that agent owe a fiduciary duty
00123
1 to some anticipated buyer at some point in the future as
2 of the point the brochure is created?
3 A. No.
4 I think no, but I haven't thought it through.
5 Q. That's your opinion? I'm asking.
6 A. I think not.
7 Q. Does the listing agent owe a fiduciary duty to
8 the buyer at the time an offer is presented from the
9 selling agent?
10 A. Who's a Coldwell Banker -- or --
11 Q. Same brokerage.
12 A. Yes.
13 Q. Yes?
14 A. Yes.
15 Q. That's clear?
16 A. That's clear to me.
17 Q. Even though -- just so I'm clear on this, even
18 though the listing agents never met the buyer?
19 A. Absolutely. Other than the fact that they
20 have chosen in the contract they have the seller
21 represented exclusively and the buyer -- there is only
22 one exception, and that's where the buyer -- which I've
23 done before -- the buyer's agent decides to write the
24 contract for the buyer but still only represented the
25 seller exclusively. That's the unusual case.
00124
1 Q. Well, as in this case, when the contract is
2 written up the agency is described as the broker being
3 the dual agent, the broker in this case being Coldwell
4 Banker?
5 A. When it's written in the contract as a
6 confirmation?
7 Q. Yes.
8 A. Okay.
9 Q. Is that right?
10 A. Say the question again.
11 Q. In the contract -- you've seen the contract?
12 A. Right.
13 Q. It defines or identifies Coldwell Banker as
14 representing the buyer on the one hand and the seller on
15 the other hand, correct?
16 A. Right.
17 Q. It doesn't say Lou Rae Kagel represents the
18 buyer, does it?
19 A. No.
20 Q. And it doesn't say Douglas Rea represents the
21 seller, does it?
22 A. No.
23 Q. How does a listing agent's duties to a buyer
24 differ when -- differ from when the listing agent is a
25 fiduciary as opposed to representing the seller
00125
1 exclusively?
2 A. Just using normal single agency on each side,
3 is that what you're saying?
4 Q. Yes, different brokers.
5 A. Okay.
6 The duty of the listing agent to a buyer is to
7 be fair and honest.
8 There is no higher duty of loyalty, there is
9 no duty to recommend, there is no duty to advise.
10 Q. When did Lou Rae Kagel's duty of inquiry that
11 she owed to the buyer arise in this transaction?
12 A. Duty of inquiry I was speaking of was to the
13 seller.
14 Q. Oh, okay.
15 So she didn't owe a duty to the buyer to
16 inquire of the seller?
17 A. Only if for some reason she felt that Mr. Rea
18 was not functioning, then she should have talked to a
19 broker about that, because there is still dual agents.
20 Q. Did the transactions that you supervised at
21 Century 21, were they primarily Contra Costa based?
22 A. They were all over.
23 Q. What other counties?
24 A. I had San Francisco. I had San Mateo. I had
25 agents that did over at Vacaville.
00126
1 They were the -- they were the specialists in
2 the world.
3 Q. Do you also supervise anyone at Executive
4 Brokers currently?
5 A. Not currently.
6 We're full up; we are all brokers.
7 Q. Are you familiar with the PRDS forms?
8 A. Yes.
9 Q. What percentage of transactions you reviewed
10 while supervising broker for Century 21 contained PRDS
11 forms?
12 A. I never calculated it out. I would have to
13 just give you a really raw guesstimate, I mean -- one in
14 20.
15 Q. Okay.
16 Are you familiar with RE InfoLink?
17 A. Absolutely.
18 Q. Did you at the time encourage any agents to
19 utilize the services provided by it?
20 A. I am, actually, one of the two people that
21 helped put together their joint data Web site with our
22 input when I was president last time, so, yes, I have.
23 Q. Do you believe that it's within the standard
24 of care to rely on the information contained in RE
25 InfoLink?
00127
1 A. Their listing being an MLS member and using
2 MLS, or are you talking about a shared database?
3 Q. Talking about whatever you want to use.
4 A. There are two different systems.
5 Q. Tell me about both?
6 A. One is a system I helped to put together in
7 2000 where they took 16 agents' information from all the
8 way from Santa Cruz all the way through San Francisco
9 and all -- and aggregated all the information, and
10 anybody that belongs to our services can get and pull
11 the listing off in its original form. They just cannot
12 put something that is not in the MLS.
13 Then you can join independently each system
14 and be a full member of the multiple listing system, and
15 then they are also a member also.
16 Q. How reliable is that information?
17 A. It's reliable as much as the people that put
18 it in and the people that monitor the inputters.
19 Q. Do you discourage people from using that
20 information?
21 A. I wouldn't discourage them from using the
22 information, no.
23 Q. Are you familiar with MetroScan?
24 A. Yes.
25 Q. Have you ever utilized MetroScan in your
00128
1 business as a real estate broker?
2 A. Yes, I have.
3 Q. Do you find MetroScan to be generally
4 reliable?
5 A. Not as reliable as other sources.
6 I find it to be not always reliable. I will
7 take it with a grain of salt.
8 Q. What, if anything, did you tell your licensees
9 that you supervised at Century 21 about using MetroLink?
10 A. MetroLink?
11 Q. Yes.
12 A. I probably didn't say anything specific to
13 MetroLink that I wouldn't say to Contra Costa because I
14 know it's a good system.
15 If you asked me to differentiate MetroScan.
16 Q. I'm sorry, that's what I meant.
17 A. I would say MetroScan take with a grain of
18 salt. I would definitely check the square footage,
19 because it isn't always right, and the bedrooms and
20 units could be off, so I would be very careful, and I
21 would probably get another resource, like ask for a
22 property profile to verify, but I wouldn't just use
23 MetroScan.
24 Q. Did you conduct a survey of the property to
25 check its size?
00129
1 A. No, I haven't yet.
2 Q. The Blanchard property?
3 A. No, I haven't seen the site at all.
4 Q. Do you know if there was a survey conducted?
5 A. Are you talking --
6 Q. Lot line, lot size.
7 A. I don't remember seeing something like that.
8 Q. Do you have personal knowledge of the true and
9 correct acreage of the Blanchard property?
10 A. Only the fact that you guys all settled at the
11 number at the end in the depositions is the closest I
12 can get to it.
13 Q. I didn't know we settled anything.
14 A. The 26,000 number that nobody balked about.
15 Q. Well, there is 28,000 number that is also
16 talked about.
17 A. Oh, okay.
18 Q. Do you have any personal knowledge that the
19 lot is 26,000 square feet as opposed to 28,000 square
20 feet and change?
21 A. No.
22 (Discussion off the record.)
23 MR. THOMAS: Q. Did you talk to Mr. Simpson?
24 A. I've never talked to anybody involved in the
25 case except you gentlemen.
00130
1 Q. And you did make some comment about the TDS
2 and the lack of a date.
3 I don't know if this is the same one that you
4 looked at.
5 This one is, unfortunately, not Bates stamped,
6 but let me show it to you.
7 A. Right.
8 Q. Is there something wrong with the date; is
9 there some date missing?
10 A. Yeah, there's no date (indicating).
11 Q. Where?
12 A. (Witness indicating.)
13 Q. What about up here (indicating)?
14 A. Blank. There's no date here (indicating).
15 Q. What about here (indicating)?
16 A. Yeah, there's dates there.
17 Q. So you're saying there's no date on the first
18 paragraph, although you would agree there is a date at
19 the top of the second page, bottom of the second page
20 and several places on the third page?
21 A. Yes.
22 Q. Do you have any reason to doubt that the
23 document was completed by the seller on the date across
24 from the seller's name, which was March 19th of '01?
25 A. I don't know if they were put together at the
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1 same time.
2 Q. You don't know when they were put together,
3 right?
4 A. Yeah. They could have been done separately
5 later.
6 Q. Do you utilize the -- help me with this -- the
7 statewide buyers and sellers --
8 A. Advisory.
9 Q. Advisory, that's it -- BSV, do you use that?
10 A. Sometimes.
11 Q. Isn't that similar to the regional disclosure
12 document you were shown earlier?
13 A. Same questions, yes.
14 Q. And, in fact, it expands upon things in the
15 regional disclosure?
16 A. They have taken Coldwell Banker in that area,
17 yes.
18 Q. You provide that to buyers?
19 A. Yes.
20 Q. And sellers?
21 A. Yes.
22 Q. Have you seen any appraisals that pertain to
23 this property?
24 A. Yes, I did.
25 Q. What appraisal did you see?
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1 A. I don't remember.
2 There is one in here I was looking at square
3 footage on that and the property.
4 Q. Did you see the one that had the
5 28,000-square-foot figure?
6 A. To be honest, I remembered 26 but -- no -- it
7 might have but -- it could have very easily.
8 MR. THOMAS: I am finished at this point,
9 Mr. Deutscher. Thank you.
10 MR. KOSS: I have just a couple questions.
11
12 FURTHER EXAMINATION BY MR. KOSS
13 MR. KOSS: Q. I take it from your testimony
14 that it's your opinion that Ms. Kagel became a fiduciary
15 of Mr. Simpson before she even met Mr. Simpson?
16 A. Boy, I hate your questions.
17 Ostensibly, she did when he started working on
18 the property that Rea did, whether she knew it or not,
19 yes.
20 I am almost splitting hairs because I'm not
21 really sure. I have to really think about it. Whether
22 at the point they wrote the contract, that's the
23 beginning point, point of presentation. I have a wide
24 thought in here whether it becomes the minute he started
25 to show that property to the Simpsons or when they
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1 actually got a contract there to present to her,
2 somewhere in that range.
3 I just never really thought about it until
4 now.
5 I wish I could tell you, but I -- I'm just
6 telling you what I'm thinking uninhibited on that,
7 uncensored.
8 I think agency is created when one person for
9 the broker worked on a property and they took an
10 interest in it, but I have never been asked that
11 question before.
12 Q. You read Mr. Barkan's deposition?
13 A. Quickly, yes.
14 Q. Do you disagree with any of his opinions?
15 A. Yeah.
16 Yeah, I didn't spend a lot of time. I really
17 had very little time to read it, but I disagreed with a
18 couple of his thoughts.
19 Q. Which thoughts were those?
20 A. I wish I had it in front of me, because I
21 thought he wrote -- he spoke beautifully.
22 For a theoretician, he was wonderful.
23 I thought his thought on -- I'm sorry, I'm
24 losing it now.
25 He made a point about -- he made a big deal
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1 about the as-is agreement and the negotiating factor
2 which you brought up earlier as if he was giving away
3 his rights but the fact that they had written as-is as a
4 negotiating tool, and I didn't agree. I thought he put
5 too much importance on it. I didn't agree at all with
6 that.
7 He talked about the property -- his thought
8 process on the value of the lack of having an out
9 building and a pool, he minimized it. I would not have
10 done that. I would think that that has to do with
11 resale and what was in the buyer's mind, what they had
12 to sell later on or how they could have utilized it, and
13 that would affect the desirability to that buyer and
14 possibly other buyers, so I didn't agree with his logic
15 on that.
16 To be quite frank, I would have to -- I really
17 read it so fast. Those are the two things that stuck
18 out, other than the fact -- I noticed how few questions
19 were asked but how long his answers were, and they were
20 beautiful, so I can't say I didn't agree with him.
21 Q. Do you know Mr. Barkan?
22 A. I know of him.
23 Q. Do you know him by communication?
24 A. I know him by reputation, both him and
25 Mr. Tilther, they are both theoreticians, and I know
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1 neither of them from practice. I know they get hired a
2 lot because they are attorneys. That's what I know.
3 MR. KOSS: I don't have any other questions.
4 Thank you.
5
6 FURTHER EXAMINATION BY MR. THOMAS
7 MR. THOMAS: Q. I've got to ask this one.
8 A. Oh, good.
9 Q. You'll like this.
10 A. Is this an agency question?
11 Q. Yes.
12 Did Lou Rae Kagel become Mr. Simpson's agent
13 even though he never chose her as an agent?
14 A. Did -- yeah, he chose her.
15 When he wrote up an offer and he said he
16 accepted full agency, he chose her.
17 Q. He chose Coldwell Banker; isn't that true?
18 A. That, too.
19 Q. Where is it he says he chose Lou Rae Kagel?
20 A. I love that question.
21 It just ostensibly happens, that happens.
22 Q. It just happens.
23 A. Off the record?
24 MR. THOMAS: Nothing further.
25 We're through.
00136
1 (The deposition concluded at 4:45 p.m.)
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SIGNATURE OF WITNESS
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00137
1 CERTIFICATE OF DEPOSITION OFFICER
2 I, MARION KENYON, CSR No. 4381, duly
3 authorized to administer oaths pursuant to Section 2093
4 of the California Code of Civil Procedure, do hereby
5 certify that at the commencement of the foregoing
6 deposition, the witness stated he or she would testify
7 the truth, the whole truth, and nothing but the truth in
8 the within-entitled cause; that said deposition was
9 taken at the time and place therein stated; that the
10 testimony of the said witness was reported by me and
11 thereafter transcribed by me or under my direction into
12 typewriting; that the foregoing is a full, complete and
13 true record of said testimony; and that the witness was
14 given an opportunity to read and correct said deposition
15 and to subscribe the same.
16 I further certify that I am not of counsel nor
17 attorney for either or any of the parties in the
18 foregoing deposition and caption named, or in any way
19 interested in the outcome of the cause so named.
20
MARION KENYON, CSR No. 4381
21 I hereby certify this copy
is a true and exact copy
22 of the original.
23
MARION KENYON, CSR No. 4381
24 Signed: January 17, 2007
25
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