Reply_to_defendants_objections_to_evidence

Reply

Cal. Super. - 4th Dist.June 15, 2018

1 Jonathan C. Terry, SBN 164162 Carter A. Mudge, SBN: 149125 2 TERRY ¢ MUDGE, LLP Newport Beach, CA 92660 Superior Court of California, 4 (949) 520-1800 County of Orange (949) 315-3067 (fax) 10/23/2018 at 12:18:00 PM 5 jterry @terrymudgellp.cm Clerk of the Superior Court ; cmudge @terrymudgellp.com ye L lerie.0 eps Clerk 7 Attorneys for Plaintiffs THE THIMONS FAMILY TRUST, JOSHUA THIMONS, and EDI THIMONS 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF ORANGE — CENTRAL JUSTICE CENTER 10 THE THIMONS FAMILY TRUST EDT dated CASE NO.: 30-2018-00999941-CU-BC-CXC 11 12/12/13, a California revocable trust; 12 JOSHUA T. THIMONS, as Trustee and as an Assigned to: Judge Randall J. Sherman Individual; and EDI M. THIMONS, as Trustee Dept: CX105 13 and as an Individual, PLAINTIFFS’ REPLY TO DEFENDANTS’ 14 Plaintiffs, OBJECTIONS TO EVIDENCE Vs. 15 Date: October 26, 2018 16 GENOVA CUSTOMS, LLC, a California Time: 10:00 a.m. limited liability corporation; ROBERT B. Dept: CX-105 17 COOK, an Individual; JOSHUA L. HUNTER, an Individual; et al, 18 Complaint Filed: June 15, 2018 iB Defendants. Trial Date: None Set 20 Plaintiffs THE THIMONS FAMILY TRUST, JOSHUA THIMONS, and EDI THIMONS 21 submit this Reply to Defendants’ Objections To Evidence Offered In Support Of Plaintiffs’ 22 Opposition To Motion To Stay Proceedings. 23 | Objectionable Evidence: 24 Declaration of Jonathan C. Terry in Opposition to Motion to Stay Proceedings (“Terry 25 | Decl.”), 19 and corresponding Exhibit 5, which states: 26 9. Attached hereto as Exhibit 5 is a true and correct copy of my September 8, 2017 letter to 7 Genova which attached a detailed list of defects and costs of repair. I intended this list to, and it does, “describe the claim in reasonable detail sufficient to determine the nature and location, to 28 the extent known, of the claimed violation.” TERRY ¢ MUDGE LLP _ 1 _ 4041 MACARTHUR BLVD. SIITER40 PLAINTIFFS’ REPLY TO DEFENDANTS’ OBJECTIONS TO EVIDENCE NEWPORT BEACH, CA 92660 (949) 520-1800 1 Grounds for Objection 2 Inadmissible settlement negotiations. Best evidence rule. Improper legal conclusion. 3 Plaintiffs’ Reply: 4 Yes, settlement offers are inadmissible to prove liability, but Exhibit 5 and Mr. Terry’s 5 statement at q9 of his declaration are not offered as commentary on or evidence of liability. Rather, 6 they are offered to show that Defendants were provided with a detailed list of defects and cost of 7 repair that complied with Civil Code §910, which requires a claimant to give the builder written notice 8 of the claim prior to filing an action and “describe the claim in reasonable detail sufficient to determine 9 the nature and location, to the extent known, of the claimed violation.” 10 Evidence Code §1152 primarily bars settlement offers as proof of the offeror’s liability. 11 Settlement demands and other exchanges of information may be admissible if relevant to prove 12 something other than the offeror’s liability (and is offered for that limited purpose). [Truestone, 13 Inc. v. Simi West Indus. Park (1984) 163 Cal.App.3d 715, 725; Wegner et al. Cal. Prac. Guide: 14 Civil Trials & Evidence (The Rutter Group 2017) §8:2813.] Moreover, statements made, and 15 documents produced, during settlement negotiations may be subject to discovery if relevant to the 16 subject matter of the pending litigation and reasonably calculated to lead to the discovery of 17 admissible evidence. [See Code of Civil Procedure §2017.010, Covell v. Superior Court (Drasin) 18 (1984) 159 Cal.App.3d 39, 42] 19 Defendants’ “best evidence” and “improper legal conclusion” objections are inapropos. 20 Exhibit 5 is submitted in its original (photocopied) form and is admissible under Evidence Code 21 §260. Mr. Terry’s declaration provides admissible evidence of his state of mind and intention when 22 writing the letter, and thus is both probative and relevant to compliance with §910. 23 Exhibit 5 and Mr. Terry’s declaration in 49 are admissible for the limited purpose of showing 24 that the Plaintiffs satisfied their obligations under Right to Repair Act and provided Defendants 25 with a detailed list of defects and cost of repair which satisfied Civil Code §910. 26 | Objectionable Evidence 27 Terry Decl., | 15, which states: 28 TERRY ¢ MUDGE LLP 3. 4041 MACARTHUR BLVD. SuITE 300 PLAINTIFFS’ REPLY TO DEFENDANTS’ OBJECTIONS TO EVIDENCE NEWPORT BEACH, CA 92660 (949) 520-1800 1 15. In my opinion, the mediation failed principally because the defendants continued to decline to agree to repair the defective sliding glass door assemblies to preserve the 2 advertised look of the property so it remained the same as intended by the architect and as purchased by the Thimons. Instead, Genova proposed an unacceptable “fix” to 3 the sliding glass door threshold that created a “skate ramp” effect and raised lip at the threshold and substantively changed the interior-to-exterior flow and performance of 4 the Corona del Mar House. In addition, Genova refused to agree to replace the deck 5 waterproofing and tiles even though there is water intrusion into the building related to those deficiencies.... and refused to make acceptable repairs. 6 7 Grounds for Objection 8 Inadmissible mediation discussions. 9 Plaintiffs’ Reply: 10 Defendants overstate the mediation privilege. Although statements made in mediation are 11 generally protected, the facts described in those statements (in this case, the fact that the repair 12 proposed by the Defendants was unacceptable to Plaintiffs) is “evidence otherwise admissible” 13 under Evidence Code §1120(a). “Otherwise, contrary to the Legislature’s intent, parties could use 14 mediation as a pretext to shield materials from disclosure.” [Rojas v. Superior Court (Coffin) (2004) 15 33 Cal.4™ 415, 423.] Furthermore, the burden is on the Moving Party to prove the statements are 16 protected by mediation confidentiality. [Wimsatt v. Superior Court (Kausch) (2007) 152 17 Cal. App.4™ 137, 159-160.] Defendants’ objections do not address the timing, context and content 18 of the communications as required. Presumably, if they did, Defendants would be compelled to 19 admit the mediation acknowledged the sufficiency of the defect list and cost to repair with the 20 parties moving directly to a mediated negotiations. Using Defendants’ logic, the mediation was just 21 a stepping stone to, what? Another round of inspections and offers to repair? That makes zero sense 22 and is not what Plaintiffs’ counsel and Genova’s prior counsel agreed to. 23 DATED: October 23, 2018 TERRY ¢« MUDGE LLP 24 « 25 B . Terry, Esq. 26 A. Mudge, Esq. THE THIMONS FAMILY TRUST EDT dated 27 12/ 12/ 13, a California revocable trust; JOSHUA T. THIMONS, as Trustee and as an 28 Individual; and EDI M. THIMONS, as Trustee and as an Individual TERRY ¢ MUDGE LLP _ 3 _ 4041 MACARTHUR BLVD. SuITE 300 PLAINTIFFS’ REPLY TO DEFENDANTS’ OBJECTIONS TO EVIDENCE NEWPORT BEACH, CA 92660 (949) 520-1800 1 PROOF OF SERVICE 2 My office is in Orange County, California. I am over the age of 18 and am not a party to this action. My business’s mailing address is 4041 MacArthur Blvd, Suite 300, Newport Beach, CA 92660. 3 A On October 23, 2018 I served the following: 5 1. PLAINTIFFS’ REPLY TO DEFENDANTS’ OBJECTIONS TO EVIDENCE 5 on the following parties and interested persons in this action: 7 SEE ATTACHED SERVICE LIST 8 () BY US.MAIL By placing __ the original a true copy thereof enclosed in sealed 9 envelope(s), with postage fully prepaid in the United States Mail, at Newport Beach, California, addressed as above. I am “readily familiar” with the firm’s practice of collection and processing 10 | correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business, with postage thereon fully prepaid at Laguna Beach, California. I am 11 | aware that on motion of the party, service is presumed invalid if postal cancellation date of postage meter date is more than one day after day of deposit for mailing in affidavit. [CCP §1013a] 12 13 0) By FACSIMILE MACHINE: I caused the above-referenced document(s) to be transmitted to the parties at the fax number(s) listed on the service list. The fax machine I used 14 | complies with California Rule of Court 2.301(3) and no error was reported by the machine. 15 | O By CERTIFIED MAIL/RETURN RECEIPT REQUESTED: by placing for collection a true copy thereof enclosed in sealed envelopes with CERTIFIED MAIL/RETURN RECEIPT 16 REQUESTED postage prepaid thereon. I am “readily familiar” with the firm’s practice of collection 17 and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business, with postage thereon fully prepaid at Laguna Beach, California. 18 | I am aware that on motion of the party, service is presumed invalid if postal cancellation date of postage meter date is more than one day after day of deposit for mailing in affidavit. 19 (X) By ELECTRONIC SERVICE: to the person(s) identified on the attached service list at the 20 | indicated electronic notification addresses. [Code of Civil Procedure §1010.6; California Rules of 71 Court 2.251(b)(1)(B), 2.251(¢c)(2), and 2.253; Orange County Local Rule 352.] 200) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 23 0 EXECUTED on October 23, 2018 at Newport Beach, California. 25 26 Cs 27 28 TERRY ¢ MUDGE, LLP - 1 - 4041 MACARTHUR BLVD, SUITE 300 PROOF OF SERVICE NEwPORT BEACH, CA 92660 (949) 520-1800 1 4 AVISO LEGAL GROUP LLP Attorneys for Defendants GENOVA a LINDA D. LAM CUSTOMS, LLC, JOSHUA L. LORI GINEX-ORINION, HUNTER, AND ROBERT B. COOK + 4000 Barranca Parkway, Suite 250 Irvine, California 92604 5 Telephone: 949.262.3272 6 Facsimile: 949.271.4037 llam @avisolegalgroup.com 7 lgo@avisolegalgroup.com 8 9 10 11 12 Updated 9/29/2018 13 EMAIL SERVICE ADDRESSES: 14 jterry @terrymudgellp.com; cmudge @terrymudgellp.com; 15 : llam @avisolegalgroup.com; 16 lgo@avisolegalgroup.com; 17 18 19 20 21 22 23 24 25 26 27 28 TERRY ¢ MUDGE LLP - 1 - 4041 MACARTHUR BLVD. SuITE 300 SERVICE LIST NEWPORT BEACH, CA 92660 (949) 520-1800