E-FILED · 2016-07-11 · E-FILED Jun 13, 2016 1:57 PM David H. Yamasaki Chief Executive...

E-FILEDJun 13, 2016 1:57 PM

David H. YamasakiChief Executive Officer/Clerk

Superior Court of CA, County of Santa ClaraCase #1-13-CV-258281 Filing #G-84481

By A. Ramirez, Deputy

E-FILED: Jun 13, 2016 1:57 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-84481

Exhibit A


SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA

191 N. FIRST STREET

SAN JOSE, CA 95113-1090

TO: FILE COPY

RE: Cilker Apartments, LLC v. Western National Construction, et al.

CASE NUMBER: 1-13-CV-258281

ORDER AFTER CASE MANAGEMENT CONFERENCE

A Case Management Conference was recently held for the above entitled case and the following

determinations were made with reference to the trial:

1. Essential parties have been served or appeared. This case is At-Issue.

2. Parties, including fictitious ones, who have not been served or who have not appeared,

are severed and ordered off the Civil Active List.

3. Jury demanded by TBD. Jury waived by TBD. Trial estimate is TBD days.

4. FINAL PRETRIAL CONFERENCE set for January 20, 2016 at 10:00 a.m. in Dept. 1. See

Attachment A for further requirements.

5. MANDATORY SETTLEMENT CONFERENCE set for January 27, 2016 at 9:00 a.m. in Dept. 1.

6. JURY TRIAL set for February 1, 2016 at 9:00 a.m. in Dept. 1.

7. Settlement Conference and Trial at 191 North First St., San Jose, CA 95113.

8. All parties shall comply with Local Rules of Court.

9. Trial attorneys are as recited into the record.

For further information, contact the Complex Civil Litigation Department, (408) 882-2286.

Date: March 9, 2015 Hon. Peter H. Kirwan

Judge of the Superior Court

If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the

American with Disabilities Act, please contact the Court Administrator’s office at (408) 882-2700, or use the Court’s TDD line,

(408) 882-2690 or the Voice/TDD California Relay Service, (800) 735-2922.

E-FILEDMar 9, 2015 2:32 PM



By R. Walker, Deputy


Prior to the Pretrial Conference, counsel for the plaintiff shall arrange a meet and confer session at a

mutually agreeable time and location. At the meet and confer, the parties shall:

1. Exchange exhibits and inspect photos and diagrams (to be submitted on the date of trial),

excluding those contemplated to be used for impeachment or rebuttal.

2. Stipulate to all facts amenable to stipulation.

3. Prepare a Joint Statement of the Case.

4. Prepare a Joint Witness List, excluding impeachment or rebuttal witnesses, with accurate time

estimates for direct and cross-examination (direct, cross, re-direct only)

5. Prepare a Joint List of Controverted Issues. If all the parties fail to agree to an issue as controverted

or uncontroverted, then the issue is controverted. (Required for both jury and non-jury trials)

6. Exchange all motions in limine and determine whether they can stipulate to any in limine motions.

Counsel shall review the Court of Appeal’s decision in Amtower v. Photon, (2008) 158 Cal.App. 4th

1582, 1593-95, which describes the Sixth District’s concerns about the misuse of motions in limine.

7. Prepare voir dire questions for the Court to include in its voir dire. (Jury trials only)

8. Execute the Statement of Compliance.

9. Prepare joint proposed jury instructions and exchange disputed instructions.

The above items, including opposition to motions in limine, trial briefs and the Statement of

Compliance signed by all counsel, shall be submitted to the Complex Civil Litigation Desk or to the

courtroom clerk in the department of the judge to whom the case has been assigned for trial, no

later than noon of the Friday before trial.

The Joint Final Pre-Trial Conference Statement shall be submitted at least five (5) days in advance of

the hearing. Agenda items in the Joint Final Pre-Trial Conference Statement shall include, but is not

limited to, the following:

• Starting date of the trial and the schedule to be followed.

• The issues to be tried.

• If separate trials are to be held, the issues to be tried at the initial trial.

• The witnesses to be called and the exhibits to be offered by each side

(other than for impeachment or rebuttal).

• Whether additional undisclosed or other specified evidence is precluded.

• Which objections are to be deemed waived.

• Procedures for consolidation or severance or transfer of cases.

• Procedures for the presentation of testimony and exhibits.

• Other matters to expedite trial.

Attachment A – Requirements for Pretrial Conference

Complex Civil Litigation

Superior Court of California, County of Santa Clara

E-FILED: Mar 9, 2015 2:32 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-70513E-FILED: Jun 13, 2016 1:57 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-84481

Exhibit B


E-FILEDAug 19, 2015 5:00 PM



By C. Pinacate, Deputy


E-FILED: Aug 19, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-75654E-FILED: Jun 13, 2016 1:57 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-84481

Exhibit C


SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA

191 N. FIRST STREET

SAN JOSE, CA 95113-1090

TO: FILE COPY

RE: Cilker Apartments, LLC v. Western National Construction, et al.

CASE NUMBER: 1-13-CV-258281

ORDER AND NOTICE OF RESCHEDULED

MANDATORY SETTLEMENT CONFERENCE AND TRIAL

The Mandatory Settlement Conference and Trial for the above entitled case have been rescheduled and you

are directed to appear in court on:

Settlement Conference: June 8, 2016 at 9:00 a.m. in Department 1

JURY Trial: June 13, 2016 at 9:00 a.m. in Department 1

Location: Superior Court, 191 North First Street, San Jose, CA 95113.

All trial counsel, parties or other persons with full settlement authority shall personally appear on the above

date, unless excused by the Court. If insurance coverage is available to satisfy plaintiff’s settlement demand

and a representative of defendant’s insurer with full settlement authority attends the mandatory settlement

conference with defendant’s trial counsel, named defendants need not attend unless their personal consent is

necessary to settle the case. Personal appearances by claims representatives and/or principals may be

waived, only with the Special Master’s approval and the Court’s written permission, for those claims

representatives and/or principals who have provided maximum settlement authority to their trial counsel.

Named defendants must also personally attend the mandatory settlement conference when (1) there is an

insurance coverage dispute; (2) plaintiff seeks to recover damages not covered by insurance; and (3) plaintiff’s

demand exceeds insurance policy limits.

All remaining active parties must electronically file and serve a Settlement Conference Statement not to

exceed five pages, excluding exhibits, no later than five court days before the settlement conference date

above. Failure to appear as ordered and/or timely file settlement conference statements may cause sanctions

to be imposed pursuant to CRC Rule 2.30. For further information, contact the Complex Civil Litigation

Department, (408) 882-2286.

Date: November 5, 2015 Hon. Peter H. Kirwan

Judge of the Superior Court

If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the

American with Disabilities Act, please contact the Court Administrator’s office at (408) 882-2700, or use the Court’s TDD line,

(408) 882-2690 or the Voice/TDD California Relay Service, (800) 735-2922.

E-FILEDNov 5, 2015 2:18 PM



By R. Walker, Deputy


Exhibit D


E-FILEDNov 9, 2015 5:00 PM



By G. Duarte, Deputy


E-FILED: Nov 9, 2015 5:00 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-78299E-FILED: Jun 13, 2016 1:57 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-84481

Exhibit E


· · IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

· · · · · IN AND FOR THE COUNTY OF SANTA CLARA

· · · · · · · · · · · · ---O0O---

CILKER APARTMENTS, LLC,

· · ·Plaintiff,

vs.· · · · · · · · · · · · · · · · · No.· 113CV258281

WESTERN NATIONAL CONSTRUCTION,et al.,

· · ·Defendants.______________________________/AND ALL RELATED CROSS-ACTIONS.______________________________/

· · · · · · · ·DEPOSITION OF DONALD WHITE

· · · · · ·(PMK for White Residential, Inc.)

· · · · · · · · · · · · VOLUME II

· · · · · · · · ·(Pages 249 through 477)

· · · Taken before KIMBERLEY RICHARDSON, RPR, CCRR

· · · · · · · · · · · CSR No. 5915

· · · · · · · · · · · April 6, 2016

· · · · · · · ·Aiken Welch Court Reporting· · · · · · · ·One Kaiser Plaza, Suite 250· · · · · · · ·Oakland, California· 94612· · · · · · · (510) 451-1580/(877) 451-1580· · · · · · · · · ·Fax (510) 451-3797· · · · · · · · · www.aikenwelch.com

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· · · · · · · · · · · DONALD WHITE,

· · · · · · · · · resworn as a witness,

· · · · · · · · · testified as follows:

EXAMINATION BY MR. DANSKIN:

· · ·Q.· Good morning, Mr. White.· Welcome back.

· · ·A.· Thank you.

· · ·Q.· Thank you for accommodating us here today.

It's my understanding that you're being produced today

as a person most knowledgeable for White Residential,

Inc.· Is that correct?

· · ·A.· Yes.

· · ·Q.· I just wanted to briefly cover some areas that

I didn't quite get to in your first deposition session.

In particular I want to talk a little bit about White

Residential's insurance history, if I could.

· · · · ·Did you have any involvement in procuring

insurance, liability insurance, on behalf of White

Residential, Inc.?

· · ·A.· Yes.

· · · · ·MR. PERRETTA:· I'll object to the extent it's

vague and not reasonably calculated.· But you certainly

may ask these questions.

· · · · ·THE WITNESS:· Yes.

BY MR. DANSKIN:

· · ·Q.· What was your role in purchasing or attaining

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insurance for White?

· · · · ·MR. PERRETTA:· Same objections.· Calls for a

narrative.

· · · · ·You can answer, Don.

· · · · ·THE WITNESS:· When we first started our

business, we started a project in Sacramento,

California, and that was for Holland Partners, and I

needed to get general liability insurance for it, so I

attained that through a broker in Bothell, Washington.

BY MR. DANSKIN:

· · ·Q.· And which carrier issued the policy, that

initial policy?

· · · · ·MR. PERRETTA:· Same objections.

· · · · ·You may answer.

· · · · ·THE WITNESS:· I believe Marshall Paris was my

broker who's an insurance agency.

· · · · ·Since then I believe he has gone out of

business.· He was an older gentleman at the time.· But

he wrote it through Golden Bear Insurance Company.

BY MR. DANSKIN:

· · ·Q.· And do you recall how many years White

Residential, Inc., was insured through Golden Bear?



· · · · ·THE WITNESS:· I can't tell you exact years, but

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we did I believe probably three projects with them and

then switched over.

BY MR. DANSKIN:

· · ·Q.· Okay.· Do you know which company you switched

over to?



· · · · ·THE WITNESS:· Hub International again was the

broker.

BY MR. DANSKIN:

· · ·Q.· Okay.· Thank you.

· · · · ·Was there someone in your office who was

responsible for working with Marshall Paris in obtaining

the liability coverage for the company or was that your

role?

· · · · ·MR. PERRETTA:· Same previous objections.

Compound.

· · · · ·You can answer.

· · · · ·THE WITNESS:· At that time I was the one that

took care of it because I didn't have anyone -- we

didn't have that many employees at that time in the

office.

BY MR. DANSKIN:

· · ·Q.· And you mentioned that you did two or three

projects, I believe your indication was, while you were

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insured by Golden Bear.· Did I hear that correctly?




BY MR. DANSKIN:

· · ·Q.· The policies that you attained through Golden

Bear, were they project-specific policies, in other

words, just covering individual projects?




BY MR. DANSKIN:

· · ·Q.· Okay.· We took the deposition of Keyston Smith

in this matter, and it's my understanding that at some

point in time Keyston became involved in obtaining

insurance on behalf of White.· Is that correct?




BY MR. DANSKIN:

· · ·Q.· I believe he testified that that was one of his

responsibilities as an operations manager for your

company.


BY MR. DANSKIN:

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· · ·Q.· Is that correct?




BY MR. DANSKIN:

· · ·Q.· Was there anyone who preceded him in that role?



· · · · ·THE WITNESS:· No.· But Mark Peerboom may have

helped me somewhat on it, but I'm the one who contacted

Marshall, and he and I would take care of it.

· · · · ·(Exhibit No. 752 marked for

· · · · ·Identification.)

BY MR. DANSKIN:

· · ·Q.· All right.· I'm going to show you what we've

marked as Exhibit 752.· I'll hand that to your counsel.

· · · · ·For the record, Exhibit 752 is

Cross-Defendant/Cross-Complainant White Residential,

Inc., Amended Verified Statement of Insurance Propounded

By Case Management Order No. 1, Exhibit F.

· · · · ·If you would just take a moment and review that

document.

· · ·A.· Okay.

· · ·Q.· All right.· You've had a chance to review

Exhibit 752?

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· · ·A.· Yes.

· · ·Q.· There is a verification on the sixth page of

that document, and there is a signature there.

· · · · ·Is that your signature?

· · ·A.· Yes.

· · ·Q.· Okay.· And have you reviewed this Amended

Verified Statement?

· · ·A.· This?

· · ·Q.· Yes.

· · ·A.· Yes.

· · ·Q.· And did you review it before you signed the

verification that's attached to it?

· · ·A.· As far as I know.

· · ·Q.· Okay.· Focusing on page 5, the first paragraph

that appears at the top of the page there.· It says:

"Responding party did not procure or maintain any policy

of insurance, whether primary, excess, umbrella, general

liability, builder's risk, course of construction and/or

difference in conditions insurance that would have

afforded insurance coverage for any of the claims or

cross claims being asserted against it in the instant

action."

· · · · ·Do you see that?

· · ·A.· Uh-huh.

· · ·Q.· Is that a "yes"?

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· · ·A.· Yes.

· · ·Q.· Thank you.· Remember, we have to keep the

record clear.· I appreciate that.

· · · · ·Can you tell me what that paragraph means?

· · · · ·MR. PERRETTA:· I'm going to object to the

extent the document speaks for itself.· It calls for a

narrative.


· · · · ·THE WITNESS:· Whether I had insurance or not.

BY MR. DANSKIN:

· · ·Q.· Okay.· White Residential did obtain liability

insurance in the years both during and after this

project was completed; correct?

· · ·A.· Yes.

· · · · ·MR. PERRETTA:· Objection.· Mischaracterizes the

witness' testimony.· Not reasonably calculated to lead

to the discovery of admissible evidence.


BY MR. DANSKIN:

· · ·Q.· Why would that insurance that White purchased

not, in your words, afford White insurance coverage for

any of the claims in this instant action?

· · · · ·MR. PERRETTA:· And I'll object to the extent

that it calls for a legal conclusion.

· · · · ·I'll also warn you, Don, that the question

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potentially seeks to invade the attorney/client

privilege.

· · · · ·If you know why and you learned it from an

attorney representing you in this case, don't answer the

question.

· · · · ·If you have some other information that you

gathered that wasn't from an attorney, you can certainly

answer.

· · · · ·THE WITNESS:· Would you ask the question again?

BY MR. DANSKIN:

· · ·Q.· You have testified that White obtained

insurance during the years that this project was ongoing

and afterward; correct?

· · · · ·MR. PERRETTA:· Objection.· Mischaracterizes the

witness' testimony.· Not reasonably calculated to lead

to the discovery of admissible evidence.



BY MR. DANSKIN:

· · ·Q.· My question is simply -- and, again, I don't,

as your counsel's pointed out, want to get into

discussions you might have had or information you

learned from your attorneys.

· · · · ·But why wouldn't that insurance coverage apply

to this case and the claims made in it?

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· · · · ·MR. PERRETTA:· Again, objection.· Not

reasonably calculated to lead to the discovery of

admissible evidence.· Calls for a legal conclusion.

Potentially invades the attorney/client privilege.

· · · · ·Again, Don, my warning to you is if you learned

something from an attorney, and that's the basis, I

don't want you to answer anything.

· · · · ·If you have some other information that you

didn't gather from an attorney, you have to tell Sam.

· · · · ·THE WITNESS:· Well, White Residential only had

an agreement with Cilker Orchards and was being

identified for the project, and it also was being built

by Western National who carried liability insurance on

it.· They were the general.· White Residential was not.

We did not participate in building the project.

BY MR. DANSKIN:

· · ·Q.· Okay.· Again, aside from any information you

might have obtained from your attorneys, why would those

facts preclude insurance coverage from applying to the

claims being made against White in this matter?

· · · · ·MR. PERRETTA:· Again, the question is not

reasonably calculated to lead to admissible evidence.

It also calls for a legal conclusion, Sam.· It's also

beyond anything this witness can answer.· And he's

already answered.· I'll say asked and answered.

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· · · · ·Again, if it had something to do with

communications between attorneys and White Residential,

Inc., in this case, don't answer.

· · · · ·If you have other information that you can add

to that answer, please do.· If not, you can tell Sam.

· · · · ·THE WITNESS:· Again, we only provided liability

insurance on projects that we were the general

contractor on and built for owners.· We were not the

general contractor on this project.

BY MR. DANSKIN:

· · ·Q.· Has White made any claim to any of its

liability insurance providers as a result of the claims

made in this case?

· · · · ·MR. PERRETTA:· I'm going to object again to the

extent that it calls for a legal conclusion.· It seeks

to invade the attorney/client privilege, so I don't want

you to answer that.

· · · · ·And if we could go off the record, please.

· · · · (Discussion held off the record.)

BY MR. DANSKIN:

· · ·Q.· Mr. White, aside from anything that your

lawyers might have done separately on your behalf, did

you or anyone affiliated with White Residential make a

claim to any insurance carriers arising out of the

claims in this case?

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· · · · ·MR. PERRETTA:· And, again, the question is not

reasonably calculated to lead to the discovery of

admissible evidence in this action.

· · · · ·But you can certainly answer the question.

· · · · ·THE WITNESS:· We had a claim that we had in

Vacaville, California, where the architect had specified

a certain material which bled through the siding, and

that is a claim that we had.

· · · · ·MR. PERRETTA:· I think he's asking you in this

particular action, this Cilker Apartments vs. Western

National, did you on behalf of White Residential, Inc.,

tender to some carrier?

· · · · ·THE WITNESS:· I see.· No.

· · · · ·MR. DANSKIN:· That is what I'm asking.

· · · · ·MR. PERRETTA:· And I'll repeat my objections.

BY MR. DANSKIN:

· · ·Q.· Since the first session of your deposition,

have you had any communication with any of the Cilker

entities or individuals involved with the Cilker

entities?

· · ·A.· No.

· · · · ·MR. PERRETTA:· Just object to the extent the

question is vague and ambiguous.

· · · · ·You can answer, Don, I'm sorry.

· · · · ·THE WITNESS:· No.

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Exhibit F


E-FILED · 2016-07-11 · E-FILED Jun 13, 2016 1:57 PM David H. Yamasaki Chief Executive...

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