IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CRUZ
LANDRY & FOY BUILDERS, INC.,)
A CALIFORNIA CORPORATION, )
)
Plaintiff, )
)
vs. ) No. CV 157690
)
KRISTIN DYER, ERIC LECHNER, )
AND DOES 1 THROUGH 25, )
INCLUSIVE, )
)
Defendants. )
_____________________________)
DEPOSITION OF CHARLES D. ALLEN
Date: Tuesday, April 15, 2008
Time: 1:34 P.M.
Location: Hartsell & Olivieri
621-A Water Street
Santa Cruz, California
A P P E A R A N C E S
For the Plaintiff:
BURTON, VOLKMANN & SCHMAL, LLP
BY: ANNA DiBENEDETTO,
Attorney at Law
133 Mission Street, Suite 102
Santa Cruz, California 95060
(831) 425-5023
For the Defendants:
REDENBACHER & BROWN
BY: GARY REDENBACHER,
Attorney at Law
1414 Soquel Avenue, Suite 212
Santa Cruz, California 95060
(831) 439-8821
Reported By:
RINDON HEINZ, CSR No. 7891
Hartsell & Olivieri
621-A Water Street
Santa Cruz, CA 95060
(831) 423-5911
(831) 423-7189 (Fax)
ALSO PRESENT: Bob Landry
Greg Foy
Eric Lechner
Suzy Hart
I N D E X
EXAMINATIONS: PAGE:
By Mr. Redenbacher 4
EXHIBITS: PAGE:
(NO EXHIBITS WERE MARKED)
CHARLES D. ALLEN,
being duly sworn by the Certified Shorthand Reporter
to tell the truth, the whole truth, and nothing but
the truth, testified as follows:
EXAMINATION BY MR. REDENBACHER
Q. Hi, Mr. Allen. My name's Gary Redenbacher.
I'm attorney for the Lechner-Dyers, and I know that
you've done a number of depositions so I might just
skip all of the introductions, unless there's anything
about depositions that you don't remember.
A. That would be fine. You could skip it if you
like.
Q. Just real quick, about how many depositions
have you done?
A. Approximately -- I'm not sure of the number,
somewhere in excess of 130, probably.
Q. Good.
We don't have to go through all of the
introductory remarks, then?
A. Uh-huh.
Q. Okay. When were you first contacted about
this job?
A. Um, about March 10th or March 11th, somewhere
right around in there.
Q. March 10th or March 11th of this year?
A. Yes.
Q. And during that contact, what was asked of
you?
A. Um, it was -- I got a call from Anna, and she
just said that she had this case where there was a
dispute over the amount of the remodeling costs of a
home, and would I possibly be able to help her out, to
look at the facts and just kind of give her an opinion
of what I think about the costs, and, um, how it was --
how the job was run.
Q. And how many hours have you worked on this so
far?
A. Um, I haven't actually even done my time
sheets yet, but I'd guess somewhere between 30 to
40 hours.
Q. And I see that you've brought an assistant
here?
A. Yes.
Q. Her name is?
A. Suzy Hart.
Q. And how -- what did she do for you?
A. She, um, helped kind of organize the
documents. There was a lot of documents, so she
assisted in getting the e-mails, for example, in
chronological order, and then merging other documents,
like letters or faxes also in to that same
chronological binder, photographs, if there were any;
likewise, tried to put it so we would have a continuous
chronology of events since the time that the project
started -- and before -- up to today.
Q. Okay.
A. So that's what she did.
Q. All right.
A. I did have her help me a little bit on
summarizing a few things, just basically helping with
data control.
Q. Do you know how many hours she worked on the
project?
A. I'm just going to have to guess
approximately. I'd say about the same as me, maybe a
little more.
Q. And so the sum total of her job description
would have been organizing documents and summarizing
some things?
A. Yes, I think that pretty well covers it.
Q. Well, let's go over those 30 to 40 hours.
How would you break down those 30 to
40 hours? What did you do?
A. Well, I went to the site and visited the
house and took some photographs of the house, every
room, the framing, crawled under the house, looked at
the foundation and the framing, went around the
perimeter of the house and the perimeter of the garage
just to the extent possible; could not get around all
three sides of the garage.
So that was not a day, but that was a -- I
guess the first phase, got some documents at that time,
got some plans -- the plans that I have with me here --
in fact, I have all the documents I've ever received
with me here.
So that's -- are you trying to get hours for
each one of these elements or something?
Q. Sure. I can help you break it down.
So site visit. You said it wasn't a day.
About how many hours was that?
A. I'm going to approximate here, maybe six
hours, which included review of documents and in the --
at least maybe three of those hours are review of
documents; and the other remaining is probably an hour
and a half or so at the site, maybe an hour and a half
brief meeting with Mr. Landry and Mr. Foy, so that's
six hours that first day.
Q. The remaining what, 28 to 32 or so --
A. Would be reviewing the contract, reviewing
numerous e-mails, reviewing the plans, the structural
calculations, um, any other documents that we were
provided by -- I think we have a few letters,
depositions of the people involved and brief overviews
of the depositions, um, looked at spreadsheets by
Landry and Foy, done some quick evaluation of costs by
Landry and Foy, looked at the cost proposal by the
contractor that's presently on the -- on the project,
Natural Building Solutions.
And I then made a chronology -- a summary
chronology, I call it, where I just try to create an
actual date and history of the project from the first
documents on up through today.
I directed my staff on getting everything in
chronological order, and I copied some of the pertinent
documents so I could have a summary binder, as I call
it, with my chronology, and kind of my summary of -- of
thoughts, so I didn't have to go through file binders;
I can kind of go to one, and if I need more detail I
can go to the backup binders.
I think that's about it.
Q. Did you prepare any summaries, any
documents -- I know you said you did a summary
chronology.
Is there anything that you did, other than
the summary chronology was prepared or a report or
something else?
A. I haven't prepared a report. The chronology
I was referring to is kind of cryptic -- it's right
here on the top of my binder, and just various notes
are right here, of anything that I did, but I haven't
formalized anything at this time.
Q. Okay. So you really didn't generate
anything -- other than what you just pointed to work,
the yellow sheets or the chronology, your office
actually hasn't generated anything?
A. That's correct. Everything I've generated
would be in this summary binder before me.
Q. And when I say "generated," I mean produced
by you, not just organized.
A. Correct, everything I've generated is right
here.
Q. Do you anticipate spending any more time on
this project, other than deposition and testimony?
A. I don't know yet. I mean, I think most
likely I'd want to do -- or I would suggest to my
clients, you know, perhaps we have a graphic of a
couple of items to help us at the next phase.
I haven't discussed that with 'em, but if I
did do that, it would -- it would be something out of
here (indicating) that maybe could be easier seen and
understood by a group.
Q. So it would be -- really would be more of a
demonstrative exhibit --
A. Uh-huh.
Q. -- rather than a conclusion or opinion -- new
opinion after today?
A. I don't foresee any new opinions. I just see
a graphic-like exhibit, if you will, or two or three,
whatever.
Q. Right.
Now, did you discuss this project with
anyone? Obviously, you discussed it with your
assistant and you discussed it with Ms. DiBenedetto,
and you said you discussed it with Landry and Foy.
A. Yes.
Q. Was there anyone other than that?
A. No.
Q. All right. Why don't we just go through and
do the best we can to recall your conversations with
each of the four people.
We'll start with your assistant.
What conversations did you have with your
assistant, Suzy?
A. I -- I think probably one of the first was
that I need help here with getting the documents in
order, and predominantly, I think -- I think I had her
do the e-mails first, you know, get 'em in
chronological order and maybe do a quick review, and
then let's sit down and talk, and it can kind of give
me an overview so I can see if I need to dive into all
those. So that was the first thing that I did with
Suzy.
And then as I got in to it, I asked her to do
some specific -- well, before I get to the specifics, I
asked her to then take -- because we have a large
amount of photos that were taken during construction
that weren't taken by me, obviously --
Q. Uh-huh.
A. -- and quite a few documents; so I thought,
well, let's get -- let's get it all in chronological
order, so she did that for me. And then that -- from
that, I would review documents and make my chron -- my
summary, so to speak.
I asked her to do a few things for me, like I
noticed the windows, for example, were changed numerous
times, so I thought, well, why don't you tell me -- do
a little summary how many times that they were changed
or discussed, and so she would do that busy work of
summarizing that for me.
And I'd have her do -- as I would read
through documents, I'd say, well, why don't you
actually even copy the documents that are referred to
the window changes so I've got a summary with the
documents attached.
And cabinets, I was interested in some of
those, highlights. I noticed an inordinant amount of
indecision by the homeowners. So I said, well, why
don't you pull a couple documents that I had read just
so I could have 'em at hand, as opposed to trying to
drive through them at the deposition.
I thought, well, if I had a couple of these
handy, with questions you probably are going to ask me,
I could have -- save us all some time.
Let's see. I had her pull a couple things on
hydronics, couple things on changing items already
installed; and out of curiosity, I said, Why don't you
do one for me on the roof? So she did those for me.
And as she would give me information, I would
say, Get me a little more of this or a little more of
that, and I read this one e-mail, could you maybe get
me that document. And I think that's about all I had
her do.
As we -- as I came across a document that I
thought would be relatively important, I'd just go get
her to get me a copy of it, or I'd have my secretary
get me a copy of it as well, I should say.
As well, there's my secretary, Nancy, who
I -- I didn't mention, but is someone who helped us,
you know, copy things, of course, and helped us code
things.
There were so many e-mails, a tremendous
amount of e-mails that we coded 'em in a way that we
could kind of sort 'em by window, and, you know,
decision changes and dollar changes.
So there, I think that's...
Q. Essentially you did it by topic?
A. We did sort by topic to a certain extent,
so -- so that's kind of what I did with the staff.
Q. Okay. Anything else that you -- comes to
mind with just staff or Suzy?
A. Well, I did have staff make contact with the
City of Santa Cruz to get some documents, get permit
histories, for example --
Q. Uh-huh.
A. -- which we haven't gotten yet, but we've
requested.
So we've made several calls -- I've had the
staff and I have also made a couple calls to the
City -- actually, tried to go to the City, but they
were closed in the afternoon, so then I tried phone
calls, and make a long story short, we're still just
trying to get the permit history.
Q. Uh-huh. How about conversations with Anna
DiBenedetto?
A. I've probably had two or three, maybe,
conversations with Anna.
Q. And what were those about?
A. I'd say the first one was the overview and
the meeting before we went to the site inspection, and
there was a -- at least one more.
Q. Well, let's start with the overview anyway.
What was -- were her concerns during the
overview?
A. That she had -- she represented a builder, a
building company, Landry and Foy, who had -- who had a
pretty good reputation in the area, did quality work,
that they had done this remodel, they had provided a
cost to -- basically, a fixed cost that they would do
the job for, somewhere around $591 (sic), with some
caveats that there were some things that weren't
decided yet; but nevertheless, that was the price and
that the owners didn't accept that price, and for
various reasons, a day later, a T and M contract was
entered into.
And then the job proceeded and was marching
along, and then at some point, they didn't get -- the
builders didn't get paid, and the Landry and Froy --
Foy wanted to obviously be paid, so they ultimately put
a mechanics lien on the house and the property, and
then went to mediation.
And now we are still going down the road with
a disagreement, and we're trying to bring resolution to
it, kind of look at the facts and see -- give us some
opinions on what you think about this case.
Q. Well, I guess we'll get to the opinions
later.
Did she express at that time what she needed
an expert for, though?
A. Only in the sense that -- well, she needed
someone in terms of, you know, the contract, someone
with experience in -- who does both fixed and T and M
contracts.
And she mentioned a little bit about the
plans and the engineering on the plans; so to me, that
was -- she needed help possibly on interpreting the
plans and how good or bad they were, and, you know, how
good or bad the contract for construction was.
And one issue apparently was -- she brought
up, was the homeowners were claiming management
supervision was inadequate, would I comment on that,
and I think that's about it.
Q. Okay. Well, let's go back to the
conversations with Anna.
Can you recall anything else about that
overview?
A. Um, I -- I think that's -- I think that's
about it.
Q. Okay. Let's go to the next conversation you
had or communication.
A. Okay. Let's see. The next time I talked to
her, which may have been the only other time, I asked
about some of the previous work that Landry and Foy had
done for these homeowners.
I knew about the bathroom remodel, and she
mentioned that they had done two bathroom remodels and
another project, and so I wanted to get that
information.
And we talked about the -- the case a little
bit, and I mentioned that there was an awfully large
amount of paper, so it was taking us a while to get it
all together.
And we talked a little bit about the
contract, the T and M contract. I gave her some of my
thoughts about it. I think that's about it.
I -- I should say, I -- I -- although I
wasn't finished with my analysis at that time, but I
mentioned a few things that I gleaned from all the
documents that -- as of that date, in terms of what I
thought about the supervision and management and the
dollars, and -- and that was about it.
And we planned to meet down here and get
together 30 minutes before the deposition and then come
over to the deposition, but -- there was a little
miscommunication. I didn't see her probably until
about five minutes before the deposition here, as
opposed to her office, so that's about it.
Q. We'll get in to it in more detail, but you
said you had some preliminary ideas of -- from -- that
you gleaned from the documents on your second
conversation.
A. Yes.
Q. Why don't we go ahead and get those
preliminary thoughts.
A. The -- well, let's see. The first one maybe
is the T and M contract.
I'm not a lawyer, but the -- I'm just telling
you from my experience in the construction business as
a licensed general contractor, the -- the intent of a T
and M contract is when you don't have a fixed price,
you have plans that are -- have a lot of unknowns in
it, and you have a client that has a lot of unknowns in
it -- they haven't made decisions on numerous things.
It's hard to come up with a price -- as a
matter of fact, in this case, it was virtually
impossible to get a fixed price; that the intent of a
T and M contract is to accommodate one who has that
problem, and that although they didn't have a price in
this T and M contract as a ceiling or a budget, if you
will, not written in it, that is, it was very clear
that everybody knew they were working off a $592,000
approximate budget bid, if you will.
They had a bid, 8/14/06, that was 592,000,
roughly -- I can dive in for the details if you need
'em, but just an over 30 for starters, and then we'll
dive, if you wish.
So there was a very clear amount of money,
and that particular contract with the 592,000 was not
agreed to by the owners.
The next day, the owners and Landry and Foy
decided to do a T and M contract; and it's very clear
in all the documents, that everyone was working off the
592,000.
They go get a loan with 592,000; they worked
through it and are constantly referring to the 592,000.
They do change orders, and it refers to the 9 --
592,000.
The change order, even those -- you know,
this amount of money of 44,000, roughly, which was
Change Order 1, now makes your -- your amount more, and
it adds to 592 with the amount of the change order,
clearly we're working off of a -- almost a fixed price,
if you will, and that gets reiterated over and over
again.
So that's -- that's one opinion that I gave
her -- not that much detail, but my preliminary,
because you asked what I said to her preliminarily.
Q. Right.
A. In essence, gave it to her in a nutshell, but
not quite as lengthy, as I just gave it to you.
Q. Okay.
A. So there was that, and that -- another
opinion -- preliminary opinion was that Landry and Foy
were really no longer supervising the job, the -- it
had been taken over by the homeowner.
In fact, the homeowner had taken over the
project management, project design, she was designing
the house, changing things. It -- it -- Landry and Foy
were actually gone off the job, and she's still -- one
of the homeowners is still changing floor plans.
So the homeowners have taken over the task of
plan development, design, and they are getting prices,
they are dictating materials, as opposed to their
designer person; they have now made it impossible to
get a fixed price on -- I won't say everything, but on
a large amount of the items.
It's -- it's impossible to get a fixed price
because they change there mind sometimes several times
a day -- not every day, but the logs of these e-mails
are absolutely astounding. The amount of decisions
that were made and changed and things -- dollars were
discussed over and over again and alternatives were
given, and the Landry Foy people were spending lots of
hours: Here's how much it will cost if you do it that
way.
Oh, I don't like that.
Here's how much it will cost if you do it
this way.
Well, I'm not sure I like it that way. I'm
not sure I like the waterproofing, and I don't know
about the waterproofing on the porch, should be this
painted material, but -- because that might be too
slippery, and I don't know if it should be wood because
it might leak; and I don't know if I should do a tile,
because that might leak, and -- and it -- it -- these
things get -- there's so many words that are
unimportant.
It's just like, why don't you just tell the
builder -- all they want to know is, You want a porch?
If you don't want the leak, we'll run with it. But
this micromanaging -- management of decisions made it
impossible for the contractor to -- to come up with a
price. He -- he doesn't know what to do.
Do I estimate the Elastimere? Do I estimate
the tongue and groove? Do I estimate some other
surface. What do I do? I don't know which one she
wants or -- or Mister wants -- usually, it was the
Missus, it appears, from the e-mails.
So my opinion is they couldn't develop a
fixed price, and they spent an inordinant amount of
time -- I quite frankly don't know how they could have
a man devote that much time daily with this -- trying
to respond to this micromanagement of costs and trying
to help get the costs down and having these
alternatives rejected, and it just went on and on and
on -- any way, I think it's two binders of this record
of events.
So that was one, and -- because I felt like
she'd taken over control of really a lot what a general
contractor would do. She's almost now the general
contractor -- she's acting as the general contractor,
and it's like she's got Landry and Foy as almost like a
sub, like she just hired somebody -- I'm going to
direct it, but you guys drive the nails, you know, and
I felt she took over the design, as I mentioned.
And the -- the last -- towards -- I'll do
this in general at the moment, because I'll have to
dive into dates, but at some point the plans are no
longer being generated by a designer.
It's, I'll get you some plans to do some
pricing, but it might take me another week. Well, this
is three, four months after the job started, they still
don't have plans.
And I see she's generating the plans, and --
where did the designer go? And then I'll say, Oh, I'm
busy for a week. I'm going on vacation, whatever, so
it will be a little longer, and then, Oh, by the way,
then I'll generate the electrical plans. I'll do the
electrical design personally. I'm very specific about
my electrical, and I -- I don't like the way other
people do it.
So now clearly the homeowner has taken over
the design task totally. So I guess that was my No. 3.
She took over construction management was
No. 2; she took over design of the -- of the project,
No. 3, and the decisions or lack thereof, appeared to
have caused delays and cost.
With a delay, you are getting cost overruns.
This -- this inordinant amount of time, not only
talking to Andy Springs in the office -- excuse me,
Andy Spring, I think it is, but talking to the foreman,
Charles, on site, it's just consuming all this time
that's not -- nails aren't being driven when you are
talking to the foreman about all the indecisiveness you
have.
So it's clear, the homeowner has to pay, and
should, for the advice being given by Charles Campbell,
by Andy Spring, by Mr. Landry or Mr. Foy; and I don't
know that I've ever seen this much questioning and
questioning and questioning and asking for opinions and
not having decisions by a homeowner, and you are six
months into the job and there's no decisions.
Q. Were there any other preliminary opinions
that you had for Anna?
A. By the way, these preliminary, I -- I didn't
say this much to her when I'm talking to her on the
phone. I just gave her a little gist of what my
opinions were.
That's probably the extent of our
preliminary -- my giving her preliminary information on
the second phone conversation.
Q. Okay. Anything else in that second phone
conversation?
A. I -- I don't -- I don't recall anything else.
I think that's about it.
Q. Okay. And you said you had maybe five
minutes today with Anna?
A. Yes.
Q. And what was that about?
A. Well, I guess the first thing, we both
apologized in having a screw up in getting here; but
she asked me about the braced walls, the conventional
construction methods, and I just shared with her my --
my summary of how that applies to this job.
Q. Might as well go over that summary.
A. The -- the house plans had showed braced
walls, which is a way of having -- installing lateral
upgrades to a house for seismic and wind; and there is
a method in the Uniform Building Code that allows you
to do that with plywood walls, in essence, that are
bolted to the foundation and as opposed to doing
structural calculations if you follow the procedures --
well, it's the California Building Code -- Uniform
Building Code and the California Building Code actually
become one. If you follow this, you can -- you can
structurally upgrade the house without having to do
in-depth structural calculations.
Q. And this is what you were telling Anna just
earlier today?
A. Yes.
Q. Okay.
A. And -- well, I didn't probably explain the
background -- well, I didn't explain the background in
the five minutes in the other room. I just said simply
that the braced wall requires for this house that you
have plywood on both sides of the wall wherever you are
under the two-story portion.
The plans showed where the braced wall goes,
and they had an incorrect item where they said you
could have plywood just on one side of the wall if you
used a thicker plywood. Well, that -- that is not so.
The code tells you if it's two story, you
have to have the plywood on both sides of the stud wall
on the first floor that's under the two story, and
concurrent with that braced wall, you have to have a
sound foundation underneath it.
So I told her that we needed a -- there
needed to be plywood on both sides of the braced wall
shown on the plans, not just one side on the first
story.
And then I pointed out that the bathroom, the
downstairs bathroom, has a braced wall and the
downstairs bathroom is under the upstairs, so it's a
first floor braced wall. So by conventional
construction, you'd have to put two -- you would have
to put plywood on each side of the wall.
It happens to be -- if I may I'll call it the
front wall -- standing in the street looking at the
house, to me the front of the house is where the front
door is, and the right side would be to your right,
left side, to your left, et cetera, and likewise for
each room. So the front wall for the bathroom is the
one closest to the street, it's got tile on one side
and that room was being saved, so if they did strictly
conventional, they would have to take off the tile and
destroy that one wall.
And so Streeter Engineering Associates -- I
might have the name slightly wrong -- actually computed
the structural requirements, and they did that, it
appears, so they could see if they could eliminate
putting plywood on both sides.
And their calcs, in fact, showed they
could -- they could eliminate one sheet of plywood
and -- which was a good thing, then you didn't have to
take the tile off the wall.
So the -- so that was the only wall that I
have found that calculations were actually done and
that's how they were able to not do it -- do plywood on
both sides of that wall, and that was pretty much the
extent of our conversation in the five minutes
beforehand. I don't think I was quite so wordy in --
when I was talking to Anna.
Q. Okay. And that was the extent of it?
A. Yes.
Q. Let's go to conversations with Bob Landry and
Greg Foy.
We'll start with Bob, I suppose.
A. So the question?
Q. I suppose is: What questions discussions did
you have with Bob Landry?
A. Only time I spoke with -- with Bob was on
March 17th, '08. It was a brief conversation before I
went to the site inspection.
And -- let's see. I mentioned to him that I
noticed in reading his contract, that his prices for
labor -- carpenters, et cetera, foremen -- was very
similar to my company. We -- it's almost identical,
the prices, and that was just an observation.
I said I -- it was just small talk, sharing
with him, and I -- I don't remember talking about much
else with Bob specifically.
We -- we were -- it was Greg Foy and Bob and
Anna and I and -- oh, I think I mentioned to Bob that
it was nice getting down to Santa Cruz. We have a few
jobs down here from time to time -- presently, have an
engineering job.
Q. Maybe what I should do is stick to the
construction issues, though.
A. Okay. All right. Then that was about it
with Bob.
Q. Okay. How about Greg?
A. Greg. We talked a little bit at the --
Anna's office before we went to the site, then we
talked at the site. Greg kind of showed me around, and
Greg mentioned that there was a lot of changes,
homeowner changed many things.
I think most of this conversation occurred at
the house before we go to the house. However, I can
recall seeing that they had quite an extensive records
system. He had some binders, and he was referring to
notes and spreadsheets.
And I know I was getting copies of -- I got
some copies, I believe, then, and to the extent I was
just asking what those are; and I think we discussed
the plans just a little bit more, like, Here's the set
I -- we had to bid from, and, Here's the one that was
approved by the City.
Q. Did Mr. Foy have any concerns about the
construction?
A. I don't know that he had concerns about the
construction. I don't know what you mean by
"concerns."
Q. Any worries about how it was -- how the
construction was performed?
A. He didn't express any worries. He just -- he
kind of told me about things, as we walked around the
house. I don't know if "concerns" are the right word.
I was kind of asking questions, and he was kind of
telling me answers.
Q. Did you have any concerns during that meeting
and during the site inspection?
A. My only concern was just to get a real handle
on the house, you know, a real good sense of how it was
put together and a lot of photos of each room.
So that was my concern, was to get as much
data as I could get so I could, you know, have my own
opinion about it, and then kind of piece together
documents with a wall, for example, or a foundation.
Q. Okay. Let's back way up here now that we've
gone through your conversations. Let me follow up with
conversations on Greg a bit.
He didn't express any concerns about the
construction and nor did you -- you only talked about
what was good about it?
A. I didn't really get in to a good, bad. I
didn't notice anything bad. I was just asking
questions as we walked around about various elements.
Q. So there's no -- let me do a broader
question.
Were there any concerns about what had
occurred during the construction management, quality of
construction, any of these concerns ever expressed to
you that there may be concerns about any of those
things, from either Anna or Greg or Bob?
A. He, I think -- well, Anna told me that there
was -- one of the home -- the homeowners -- one of
their complaints was they felt the management was not
good, that there was not a -- I don't know if she said
not enough or inadequate in some way, that was an issue
in the case.
I don't -- I mean, that's just one of the
issues that I was told that I need to look into. I
didn't get a concern, I don't think, if I'm using your
definition correct, from Bob or Greg.
Q. Did you see much in the way of documentation
of communications between the homeowners and either Bob
or Greg?
A. I -- I saw some e-mails, most of it is
through Andy Spring or I guess Charles Campbell.
Q. There are e-mails with Charles Campbell?
A. You know, I don't recall if it's e-mails with
Charles or just actual written, you know, daily logs
where Charles has communicated with the homeowner. I'm
not sure I've seen any e-mails from Charles.
Q. And did you see any e-mails from either Bob
Landry or Greg Foy to the homeowners?
A. Yes.
Q. And would your assistant be able to identify
those for us?
A. Probably, or, you know, I might be able to
find 'em but you might be able to find them easier.
Q. Why don't we start with Bob.
MS. HART: You want me to find them?
MR. REDENBACHER: Yeah, why don't we start
with Bob, and while he --
(Eric Lechner exits proceedings.)
MR. REDENBACHER: And while those are being
reviewed, we might as well go in to your credentials a
little bit.
Q. You said you are a professional engineer. Is
that right?
A. Yes.
Q. And how long have you been a professional
engineer?
A. I think I was licensed in 1972.
Q. Do you have any other engineering licenses?
A. Yes, I'm -- I have a civil engineering
license and I have a traffic engineering license.
Q. Traffic engineer?
A. Uh-huh.
Q. Do you do that now in your present company?
A. We do a little bit, not very much anymore.
We've gotten kind of away from that; got too busy with
structural and engineering consulting, other than
traffic consulting.
Q. You said you are also a general building
contractor; correct?
(Eric Lechner enters proceedings.)
THE WITNESS: Yes, we have two licenses in
the general contracting area. We have a Class A, which
is the general engineering contractor's license for
massive earth work kind of projects and large concrete
kind of airport --
BY MR. REDENBACHER: Q. And when you say
"we," does that mean your company or you?
A. No, I'm sorry -- I -- I have the license and
then I have a general contractor's Type B, which is a
building contractor's license.
Q. So you do both A and B?
A. Yes.
Q. And how long have you been an A and B
contractor?
A. I think I got the A -- excuse me, the B in
about 1982, and I think I got the A, maybe -- I don't
know -- five years later, 1987, maybe --
approximately -- I could look it up if you like.
Q. That's fine.
A. I'm just giving you a general idea.
Q. And are you the president of your company?
A. I'm the president of -- I have two companies.
I'm the president of both.
Q. Are those both construction companies?
A. No. One of them is a -- Allco Engineering is
an engineering company; and the other one is A. Packard
Corporation, and that's a construction company that
does the Type A and the Type B work.
Q. What kind of work do you generally do in the
construction aspect?
A. We do an awful lot of repair of damaged
buildings, houses, retaining walls. We also do
remodeling. We do a lot of new foundation work for
single family homes. We do anything from change the
doorknob to, you know, double the size of your house,
if you wish. We also design and build custom homes --
we haven't done very many of those.
We do a lot of analysis of why something
failed, and then we will kind of figure out how to fix
it and develop a cost and fix it for the cost that the
client wishes us to do so.
Q. So are you telling me that the biggest part
of your work is coming in where something has failed,
figuring it out, how to fix it, and then fixing it?
A. Speaking of construction only, I'd say the
biggest part is -- well, we do an awful lot of fix --
fixing of distressed properties; we also do an awful
lot of remodeling.
A person's got -- they want to gut their
house and do a new kitchen, a new bathroom, so we do a
lot of that. Um, they want a basement under their
house and they have got five feet and they want it
bigger, so we'll do it bigger. If they need a new
foundation and we'll -- we'll put a new foundation on
the house.
Q. And are you the project manager for all of
your jobs?
A. I'm what we call the -- let's see. What
would you call me? The construction manager on all the
construction projects, and then I have a superintendent
and foremen on down the line that spend more time on
each job than I do -- my superintendent, for example,
spends more time than I --
Q. Uh-huh.
A. -- et cetera.
Q. Have you been hired as an expert to comment
on management issues before?
A. Yes.
Q. Do you know offhand which cases those were?
A. Management's -- strictly management, I don't
know if I've had one just management.
Usually, when there's a dispute in cost,
management is an element that people are complaining
about, so to the extent we've been involved in disputes
over costs, not all, but a large percentage of those do
center around an issue about management.
Q. Do you utilize a number -- do you utilize a
lot of time-and-material contracts?
A. I'm not sure what "a lot" means, but we --
Q. Perhaps I should revise that.
How familiar are you with time-and-material
contracts?
A. I'd say very familiar. We -- all of our --
if we have a fixed contract, for example, we have a --
as all contracts do, there's a provision if you do
something that's not in the contract, then that will be
done in T and M, for example.
So quite often, there's T and M's off of a
fixed, and sometimes we'll do just a T and M contract
because the person just doesn't know for sure
everything they want to do.
Q. Of those T and M contracts, how many of them
were for home improvement, though?
A. Boy, over the years, it would be hard to say.
I guess it's better if I did a percentage. I don't
know. I -- I -- 10 percent maybe we do is T and M.
Q. 10 percent of the home improvement contracts
you do are T and M?
A. That, or maybe a little less than 10 percent.
Q. How about for commercial construction?
A. I'd say it's a little more than that. I'd
say for commercial, it's probably maybe 20 percent
T and M.
Q. Do you have any home improvement contracts
right now that are T and M that you are familiar with?
A. At the moment, we have one. Yeah, just one.
Q. When you are hired as an expert, can you give
me a percentage of time that you are hired for
plaintiff versus defense?
A. Um, I'd say it's about 60 percent defense and
40 percent plaintiff.
Q. And on the defense, are you defending the
homeowner or the contractor?
A. I've been where I've been defending the
contractor or the homeowner. I'll speak only to
construction, not --
Q. Right.
A. -- engineering, because I think that's where
you want me to be.
Q. Right.
A. I've defended the insurance company, um, I
guess that's about all the categories.
Q. Insurance defense?
A. One of our clients of this category of
construction, sometimes we're defending an insurance
company, sometimes we're defending the contractor,
sometimes we're defending the homeowner.
Q. Can you think of a name of a case where you
were representing the homeowner?
A. Um, let's see. I can think of several that
we did where we were representing the homeowner.
Q. And what are their names?
A. Um, well, I don't know if that's confidential
or not. I guess it's not.
Rhoads was the homeowner, I represented on
one recent case, I think it was Rhoads versus Sweeney.
Q. How do you spell "Rhoads"?
A. R-H-O-A-D-S, I believe.
Q. First name?
A. I don't know -- well, I don't know off the
top of my head. I mean I have -- we have it in our
files.
Q. All right.
A. That was fairly recent.
Q. What county?
A. That was -- I think that's Alameda County.
And then there was recently Manley,
M-A-N-L-E-Y, versus -- the name of the builder escapes
me --
You don't happen to remember?
MS. HART: Manleys, no.
BY MR. REDENBACHER: Q. What was Manley's
first name?
A. Jeff, Jeff Manley.
Q. What county was that?
A. That's Lafayette, which is in Walnut Creek.
Q. That would be Alameda County also?
A. I'm sorry, Contra Costa.
Q. Contra Costa?
A. What did I say "Walnut Creek" -- Lafayette is
in Contra Costa.
And then Hornig, H-O-R-N-I-G, they were in
Pleasanton.
Q. That's also Contra Costa?
A. I think that's also Contra Costa County.
Q. Do you know Hornig's first name?
A. Mike -- Mike and Claire Hornig.
Q. And about how many times have you been hired
as an expert?
A. I've been around along time, so it's -- well,
it's -- probably at least double the amount of
depositions.
Q. So about 260?
A. Maybe 300.
Q. 300?
A. The expert consulting is probably -- to give
you kind of a perspective, is maybe 20 percent of at
least my time. It's not a big portion of our -- our
work -- we're actually building things -- my crews are
building things as we speak, so we -- predominantly
that's what we do.
Q. Is it fair to say that you predominantly
represent either insurance carriers or contractors?
A. Um, no, no. I'd say it's predominantly -- of
those three categories -- homeowner, contractor,
insurance company -- it's probably homeowner and
insurance companies more predominant than representing
a contractor.
Q. And has Anna hired you before?
A. No.
Q. Can you give me the names of other attorneys
that have hired you in the past?
A. Um, John Hook. That would be the Long and
Levitt law firm in San Francisco. Irene Yelovich, same
law firm. Craig -- I'll come back to that. Don Odell.
I think his law firm is Don Odell and Associates, I
believe, in Pleasanton.
Q. Uh-huh.
A. Clifford Hirsch, Walnut Creek, um, Craig
Judson, that's -- he's Walnut Creek.
Q. Let's go in to your assignment. I know we've
already talked about that to a degree, but I need to
nail it down.
Has your assignment changed -- I think you
already have said it has changed since you
originally --
A. Um, I don't know that it's changed. I
obviously know more now. Yeah, I don't -- I don't know
that my assignment has actually changed.
Q. You had mentioned that you got asked about
braced wall panels five minutes before your before your
deposition.
A. True. But that was not a change to me,
because one of the questions early on was the plans,
their adequacy, and, of course, the braced panels are
shown on the plans. I just thought of that as
all-encompassing.
And that was an issue in one of the items by
the homeowners, somewhere in the correspondence there's
some discussion about the braced panels; so in
responding to that, from my own ability to be able to
answer it, I looked at the plans and the braced walls
so I could glean out of that just what's going on and
what happened and why.
Q. And in your summary binder here, I think
we've already covered it, but I wanted to make sure,
actual materials that you produced and generated are
really just these yellow sheets at the very front;
other than that, these are all documents that have been
provided to you?
A. The yellow pieces of paper and -- and then
these -- this pile here (indicating) -- well, at least
the cover, I should say, where we kind of did a
summary, that's us, but the backup is just the e-mails.
So we generated, I guess, the cover -- the summary on
some of these -- actually, these here, it looks like --
yeah, the top sheets are things we generated, and my
photographs, of course, I generated.
Let's see. A few charts that we generated,
and where we just plotted on a calendar the changes per
day, the dollars that were discussed and changed per
day over the several months.
Then we did a summary of the chronology of
all e-mails, and kind of categorized 'em, so we -- we
produced that, and that's