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 GREG FOY
Date: Tuesday, March 11, 2008
Time: 2:50 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
I N D E X
EXAMINATIONS: PAGE:
By Mr. Redenbacher 4
EXHIBITS: PAGE:
Deposition Exhibit 18 17
(Landry and Foy Invoice,
dated 11/30/2006)
Deposition Exhibit 19 17
(Landry and Foy Statement,
dated 9/30/2006)
Deposition Exhibit 20 37
(Excerpts from Chapter 23
of the 2001 California
Building Code)
Deposition Exhibit 21 43
(Photograph)
GREG FOY,
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. Foy. Of course, we've already -- at
least informally met. I'm Gary Redenbacher, attorney
for Kristin and Eric. I know you were here earlier
when we were taking Andy Strong's deposition.
Have you ever had your deposition taken?
A. No.
Q. And did you pay attention when I was giving
Andy all the rules of a deposition? Do we have to go
through those? I see by the look on your face, that
maybe you do?
A. Yeah, you might as well go through it.
Q. All right. Do you remember that depositions
are reduced to writing, and, therefore, if we do
uh-huhs and huh-uhs --
A. (Witness nodding head.)
Q. -- it doesn't come out very well on the
transcript. And the same thing as if we talk over one
another --
A. (Witness nodding head.)
Q. -- so do your best to wait for my question
and I'll do the best to wait for your complete answer,
and that way we won't mess up the transcript.
Frequently, in conversation, we always are
interrupting each other because we kind of know what's
coming, but it doesn't work so well with the
transcript.
A. (Witness nodding head.)
Q. Now, is there anything that is happening with
you today that would prevent you from giving your best
and complete testimony?
A. No.
Q. No.
I had heard something about a heart
condition?
A. Yeah.
MS. DiBENEDETTO: I was worried about you.
THE WITNESS: Yeah, I'm kind of
uncomfortable.
MR. REDENBACHER: Uncomfortable.
Q. Does it in any way affect your thinking --
A. No.
Q. -- or your ability to give answers?
A. No, it doesn't.
Q. You might have heard Ms. DiBenedetto make a
few objections.
Objections are kind of technical animals,
mostly for judges and for lawyers.
What we're doing is objecting to the form of
the question, saying that somehow I asked something
wrong and later on down the line a judge will rule
whether I asked the question right or wrong; but
subject to that ruling by the judge, you still have to
answer, except for a couple of situations, and believe
me, Anna will let us know on those few situations where
you can't answer and she'll instruct you to.
You basically understand that?
A. Yes.
Q. With that, I think we could probably just
dive right in -- oh, one thing that I didn't mention
with Andy Strong --
MR. LECHNER: Spring.
MR. REDENBACHER: Yeah, Andy Spring. I'm
thinking of Glenn Strong.
-- with Andy Spring is that we try to refer
to documents by their number --
THE WITNESS: Uh-huh.
MR. REDENBACHER: -- because if you say,
Well, this says over here, the transcript -- person
reading the transcript, that is, has no idea what you
are talking to -- or talking about.
So what I'll try to do is mention, Oh, are
you talking about Exhibit 6, Exhibit 7? But if you can
try to remember to refer to the particular document
that you are referring to.
A. Okay.
Q. Okay. Thanks.
I believe I was told by Mr. Spring that you
were the project manager. Is that correct?
A. Yes.
Q. And would you consider yourself a thorough
and an attentive builder?
A. Yes.
Q. Let's go into your background.
What is your background as a builder?
A. I took building technology and construction
technology at Cabrillo after I graduated from high
school.
Q. Okay.
A. I worked for various contractors before,
during and after I was in college. I got my
contractor's license at -- in 1991 after working for
several different contractors and been in business as
Landry and Foy Builders since 1996.
Q. What was it that you did for various
employers before you became a contractor? Were you a
carpenter, electrician? What is it you did?
A. I began as a laborer and went through
journeyman carpenter. The last job that I had previous
to getting my contractor's license, I was the lead
carpenter/foreman on the job.
Q. Who did you work for?
A. At that time it was Roger Powers.
Q. Is that here locally?
A. Yes.
Q. So when did you graduate from high school?
A. '76.
Q. '76.
And then you went to Cabrillo immediately,
and did you get an A.A. degree in building technology?
A. No, I didn't.
Q. But it was a number of classes that you took?
A. Yes.
Q. Can you remember what classes you took back
then?
A. I don't remember. There was a -- I don't
really remember what exactly the classes were.
Basically what we did, we built a house on the Cabrillo
College campus --
Q. Uh-huh.
A. -- so...
Q. Okay. So it was a basic building
construction class?
A. Yes.
Q. Do you remember any other classes that you
had?
A. No.
Q. Do you think you took other classes?
A. I think it was just -- it was only one -- it
was either half a year or one year, and you take three
classes per semester there --
Q. Uh-huh.
A. -- so it was either probably six or three
classes.
Q. Six or three classes in building technology?
A. Yeah.
Q. You don't recall which ones they were, other
than the one building a house?
A. Right.
Q. Do you retain anything --
A. It was an architecture class.
Q. There was an architecture class?
A. Yeah, I took that, too.
Q. Let's be careful because we're starting to
talk over one another just a little bit.
A. (Witness nodding head.)
Q. I'm sorry, so there was an architecture
class, building technology class.
Anything else that you can recall?
A. Anything else that I took at Cabrillo?
Q. Yeah, any other building-related --
A. No.
Q. Okay. Did you go through a sanctioned
apprenticeship school?
A. No.
Q. Who did you apprentice with?
A. I worked for -- see, I don't remember those.
Q. If you can't remember, you can't remember.
A. Yeah, I can't remember the first contractor I
worked for. The second one, his name was Mike
something.
Q. I can't remember the first guy I worked for
either. I just know that I did.
A. The third one was Raul Morales. And then I
worked for Bob Landry and I worked for Roger Powers,
um, Terry Byers.
Q. Okay.
A. Pat Reynolds.
Q. Okay.
A. That's all I remember.
Q. And when was it that you would consider
yourself a journeyman -- or that you became a
journeyman?
A. Late '80s.
Q. And did you get a license, a contractor's
license?
A. Yes.
Q. When did you get that?
A. I think it was '91.
Q. And do you still have -- I assume it was a
sole proprietorship. Is that correct?
A. Yes.
Q. Do you still have that?
A. No.
Q. After you -- how long did you run your own
sole proprietorship?
A. Four years.
Q. And after that, would have been about '95,
'96 --
A. Uh-huh.
Q. -- and that's when you joined up with Bob
Landry?
A. Yes.
Q. And who carries the license -- actually, it's
a partnership license.
Which one of you is the qualifying partner?
MS. DiBENEDETTO: Corporation.
MR. REDENBACHER: It's a corporation?
MS. DiBENEDETTO: Corporation.
MR. REDENBACHER: I'm sorry. Thank you.
That would be my next question: Is it a corporation or
a partnership?
Q. And who has the -- who is the qualifying --
MS. DiBENEDETTO: The QME?
BY MR. REDENBACHER: Q. Do you know who
that is?
A. I don't know.
Q. Qualified managing partner or -- actually, it
wouldn't be partner.
MS. DiBENEDETTO: QMO or RMO.
MR. REDENBACHER: Yeah, RMO, responsible
managing -- it's RME.
MS. DiBENEDETTO: It's RME?
MR. REDENBACHER: Yeah, the responsible
managing employee or responsible managing owner, one of
the two.
Q. Do you know who is -- who that is in your
company?
A. No.
Q. What is your position in your company?
A. CEO.
Q. And what are the responsibilities of CEO?
A. It might be CFO. I'm not exactly sure.
Q. So you are either the CEO or CFO?
A. Yeah.
Q. And what does -- what are your duties?
A. I run the jobs, basically.
Q. And you say "run the jobs" --
A. Uh-huh.
Q. -- can you give me a little more detail on
that?
A. I'm the production manager at Landry and Foy
Builders.
Q. And by "production manager," can I assume
that that means that you -- well, you don't do the
estimates; right?
A. Right.
Q. Do you do any material take-offs at all?
A. I don't do material take-offs.
Q. Can you tell me what your days generally
consist of?
A. In the morning we discuss the conditions of
the jobs that we have underway; we go over the
estimates that are being worked on and their due dates,
discuss leads, meetings that -- you know, coming up. I
go out to the jobs; I visit the jobs, go over issues of
the jobs with the foreman, meet with the owners, meet
with prospective clients.
I go over the billing statements with the
bookkeeper. I go over all the change orders with Andy
Spring; I go over the estimates with Andy spring, help
him with the estimates.
Q. Do you ever put on nail bags?
A. Occasionally.
Q. Did you ever put on your nail bags for this
job?
A. Yes.
Q. What work did you do actually with your hands
on this job?
A. When they were sheeting the roof, I went by
and helped 'em sheet the roof of the second floor.
Q. How long were you on the roof?
A. A couple of hours.
Q. Were you at the job site daily?
A. No.
Q. How often would you be at this job site?
A. At least once a week.
Q. How long would you be there?
A. About an hour.
Q. Would that hour be reflected in the time
sheets?
A. No.
Q. Why wouldn't it be reflected in the time
sheets?
A. I don't necessarily keep track of my time
that way.
Q. How do you keep track of your time?
A. I have time sheets, but I may just write down
"overhead" for all day.
Q. When you do ascribe an hour to your time to a
job, why is it that you choose to do it, say, for this
hour or two and not for this hour or two?
A. Sometimes I write "supervision," sometimes I
write "overhead."
Q. So how do you, um -- well, let me go back
there.
On a time-and-materials contract, your time
is for every hour you spend at that job site. Wouldn't
you be billing your time?
A. Yes.
Q. Why would you call your time "overhead" if
you are actually at the job site?
A. If I didn't particularly want to bill those
hours to that client.
Q. What makes that decision for you?
A. It's just a judgment on my part.
Q. What is the -- how many hours would you say
that you actually bill a week, then?
MS. DiBENEDETTO: To one particular
classification or just in general?
MR. REDENBACHER: Just in general.
MS. DiBENEDETTO: In general.
THE WITNESS: Bill hours that I bill a
client?
BY MR. REDENBACHER: Q. How many hours --
how many billable hours would you say that you incur?
A. None.
Q. Not a one?
How do you bill for your time?
A. I don't bill for my time.
Q. If you look at Exhibit 6, if you go to page 4
of Exhibit 6, it says there that labor cost, the
contractor will charge $80 an hour for his time --
A. Uh-huh.
Q. -- so I mean, that's very magnanimous of you
that you don't bill for your time, but why would your
contract say that you are going to bill for your time?
A. We don't use this contract anymore.
Q. Well, let's go back to when you did, because
that's the project where you did use this contract --
A. All right.
Q. -- so I guess my question stands:
Even though you don't bill for your time, why
would this contract say that you do bill for your time?
A. Are you asking me if I billed for my time two
years ago when we used the T and M contract?
Q. Yes.
A. Yes, I could bill for my time two years ago
when I used a T and M contract.
MR. REDENBACHER: I want to make copies of
these here.
(Recess taken.)
(Exhibits identified: Deposition 18 & 19.)
MR. REDENBACHER: Back on the record.
We're looking at Exhibit 19, which is a
statement from Landry and Foy Builders.
MS. DiBENEDETTO: You mean 18?
MR. REDENBACHER: I'm looking at No. 19 right
now, the September 30th --
MS. DiBENEDETTO: Oh, I got 'em backwards.
Okay.
MR. REDENBACHER: Yeah.
If we look at the September 30th statement, I
see one, two, three, four -- let's see. There's a few
more, five, six -- I see six entries for your time on
this job.
Q. Do you see any more than that, Mr. Foy? I
see one on September 7th, September 13th, two on
September 18th, September 21 and September 25th --
A. Okay.
Q. -- and all but one says "job-related
supervision."
A. Uh-huh.
Q. So if I'm getting this right back two years
ago, you did charge for job-related supervision on
people's jobs; correct?
A. Sometimes.
Q. When you -- okay. You say "sometimes." Go
ahead and explain that.
A. If we had a T and M contract where I could
have billable hours for job-related supervision if I
felt; if I didn't feel like billing for that time that
I was there supervising the job, I would just simply
not write down those hours.
Q. Why would you not charge for those hours?
A. Well, specifically in Kristin and Eric's
case, I knew they were on a budget; I didn't feel it
was necessary to, you know, bill for every hour that I
spent supervising the job.
Q. Is there any where that reflects the actual
time that you spent on their job?
A. Well, these times that you would see here are
actual times that I'd been there, but there may be
other invoices where it wouldn't reflect if I didn't
write it down.
Q. Did you do this on other jobs?
A. Yes.
Q. Did your partner know that you weren't
billing your time?
A. No.
Q. Is this the first he's hearing about it?
A. Possibly.
Q. Do you have a calendar or anything else that
would reflect where you were at any one time during the
last couple years?
A. No.
Q. Let's go to Exhibit 18, which is the
November 30th, 2006, invoice, and if you look through
here, I see one and a half hours on November 16th --
A. (Witness nodding head.)
Q. -- for that billing cycle.
A. Uh-huh.
Q. So for the month of November, at least
according to your documents, you spent one and a half
hours on this project. Is that correct?
A. Yes.
MS. DiBENEDETTO: Correct as to what the
document says or correct that that's the amount of time
you spent?
BY MR. REDENBACHER: Q. Is that correct,
the amount of time you spent?
A. Oh, no.
Q. How can we know that you spent any more time
than this hour and a half that's reflected in the
documents?
A. Because I told you I went there at lease once
a week.
Q. Do you have any external source, anybody else
that could testify to that?
A. The people that were there.
Q. Okay. Do you recall Mr. Campbell's
testimony?
A. No.
Q. Okay. He testified that you were rarely
there after the first month.
You don't recall that testimony?
A. Not specifically.
Q. Would Mr. Campbell have any reason to tell us
that if it wasn't true?
A. Possibly.
MS. DiBENEDETTO: Calls for speculation,
objection.
MR. REDENBACHER: If you know. You said
"possibly" there.
Q. Is there a reason that you know of why he
would tell us that you were rarely there after
September or October?
MS. DiBENEDETTO: Same objection.
THE WITNESS: I couldn't really say why he
would.
BY MR. REDENBACHER: Q. So you don't know
the answer?
A. What's the question?
Q. Do you know of any reason why Mr. Campbell
would tell us you were rarely on the job site after
September or October?
A. No.
Q. Can you give us your best estimate of how
often you were working on this job in, say, November,
although the invoice only shows an hour and a half for
that month?
A. What is your question again?
MR. REDENBACHER: Could you read it back,
please.
(Record read as requested.)
THE WITNESS: I would estimate two hours a
week.
BY MR. REDENBACHER: Q. Did you ever talk
with Kristin while you were there?
A. Yes.
Q. And so Kristin would be able to remember your
being there, say, during the month of November?
A. I don't know if she would remember or not.
Q. Would you ever, shall we say, hide on the job
site to avoid Kristin?
A. No.
MS. DiBENEDETTO: Objection. Argumentative.
BY MR. REDENBACHER: Q. Did you and Kristin
have a good working relationship?
A. I think it was fairly good.
Q. Do you have enough expertise to where you can
recognize construction that is not to code?
A. I think that would have to depend on what the
code infractions are.
Q. You are a carpenter; right?
A. Yes.
Q. Would you be able to recognize framing
inconsistencies that are not to code?
A. Probably.
Q. But only probably?
A. I -- it depends what -- I don't -- it depends
what the code is, I think.
Q. Are you -- do you think you are sufficiently
aware of residential building codes to where you could
say if framing was to code or not?
A. Yes.
Q. Are you sufficiently aware of framing
techniques where you could recognize whether framing
was substandard by today's standards?
MS. DiBENEDETTO: Could you read back the
question?
(Record read as requested.)
MS. DiBENEDETTO: I'll object to the extent
that it calls for expert opinion.
THE WITNESS: What do you mean by "framing
techniques"?
MR. REDENBACHER: Standard framing
techniques. Most people frame 16 inches on center;
most people use nominal 2-by-4s or 2-by-6s; most people
use headers that are 4-by-12s or engineered lumber that
have sisters -- or trimmers, rather, those would be
standard techniques, in my book anyway.
Q. Would you be familiar enough with standard
techniques today that are usually used in construction
today where you would recognize techniques that would
not be considered standard?
MS. DiBENEDETTO: Same objection.
THE WITNESS: Probably.
BY MR. REDENBACHER: Q. When you say
"probably," there are situations, though, that you
would not have the expertise to recognize it?
MS. DiBENEDETTO: Objection.
THE WITNESS: I don't really understand what
you're --
MS. DiBENEDETTO: I think -- it seems --
Gary, I don't mean to be --
THE WITNESS: Yeah.
MS. DiBENEDETTO: -- unduly adversarial, but
it seems like it's very overbroad.
MR. REDENBACHER: That's a deposition, you
start broad and narrow it down.
MS. DiBENEDETTO: Belatedly object as being
somewhat vague and ambiguous and overbroad.
If you can answer, feel free.
THE WITNESS: I don't understand what you are
trying to get at.
MR. REDENBACHER: Just wondering what the
level of your expertise is.
THE WITNESS: I'm a journeyman carpenter.
BY MR. REDENBACHER: Q. And with that,
would you feel comfortable going in and identifying
substandard framing techniques in being able to point
them out?
A. I would call an engineer if I had questions.
Q. Do engineers generally do framing?
A. They tell framers what to do these days.
Q. And what do they tell framers to do?
A. What size lumber to use, what centers to use,
what hardware to use, what type of fasteners to use,
what type of plywood to use, how many fasteners to use
in the plywood, what size of beams to use, what size of
concrete footings, concrete pads, the strength of your
concrete, how much rebar.
Q. So would you consider those standard
techniques?
A. No.
Q. What would be standard techniques?
MS. DiBENEDETTO: Objection. Overbroad,
vague and ambiguous. I don't even understand it, Gary.
I'm sorry.
THE WITNESS: I don't think there is anything
that's standard.
BY MR. REDENBACHER: Q. Have you previously
worked on this house?
A. Personally?
Q. Yeah, Landry and Foy Builders.
A. Yes.
Q. What did you do?
A. We did a bathroom remodel and we replaced
some windows and applied window trim.
Q. Applied what?
A. Window trim.
Q. When did you do that?
A. Several years ago.
Q. Can you give me a more particular date?
A. No.
Q. Was it in 2004 -- better thing to do is try
to match it up with the work you did here.
This job started when?
A. 2006.
Q. August or September of 2006?
A. Yes.
Q. In relation to that job, how much before --
how much before this job was the -- say, the bathroom
remodel?
A. Two years, I would say.
Q. And how much before this job was the replaced
windows?
A. Several months.
Q. And did you ever come out to the job site?
A. Yes.
Q. How often were you there?
A. At least once a week.
Q. Did you ever put on your nail bags for either
of those jobs?
A. I don't remember.
Q. And --
A. Actually I do remember. I remember hooking
up the toilet in the bathroom.
Q. Other than that, you were just there for
supervision --
A. (Witness nodding head.)
Q. -- and project management?
A. Yes.
Q. Were you ever there at a point -- you were
there every week, though; right?
A. (Witness nodding head.)
Q. Yes?
A. Yes.
Q. So you would have seen whether the framing
was exposed?
A. Yes.
Q. Was there anything unusual, by today's
construction standards, regarding that framing?
A. Not that I recall.
Q. Is there anything unique that you had to do
with the framing on either the bathroom or the windows?
When I say "unique," just different than what you would
have to do with standard techniques today.
A. No. When we replaced those windows, we took
out the windows that were there, put in the new
windows.
Q. What kind of exterior siding was there?
A. Horizontal siding.
Q. Was it horizontal lap siding?
A. Yes.
Q. Did you have to cut that back? Did you have
to remove it? What did you have to do to get the
windows out?
A. I don't remember.
Q. Do you remember with a kind of trim was on
there?
A. Yes.
Q. What was it?
A. One-by-eight.
Q. And you had to pull the trim, I assume?
A. Yes.
Q. And do you remember whether the trim went
over the horizontal lap siding or did it butt to it?
A. Over it.
Q. And more likely than not, in order to remove
those windows, you had to remove some of the lap siding
or cut it back?
A. I don't know.
Q. What kind of windows did you install?
A. Milgard, I forget the model name.
Q. Were they dual glazed vinyls?
A. They were dual glazed Fiberglas.
Q. Fiberglas. With a nailing flange?
A. Uh-huh.
Q. Do you --
A. Yes.
Q. Yes.
Do you recall having to flash those nailing
flanges?
A. I don't recall.
Q. The windows that came out, they were older
windows, I assume?
A. They were aluminum single pane windows.
Q. What exactly did you do in the bathroom
remodel?
A. We extended the floor beyond what was the
perimeter of the building by cantilevering floor joists
out so that extended area was where the bathtub is --
Q. (Witness nodding head.)
A. -- and installed a nice vanity sink and
toilet.
Q. When you say extended the -- when you
cantilevered the floor out, I assume you had to remove
the exterior wall?
A. Yes.
Q. And then, of course, you had to frame the new
walls to the existing walls; correct?
A. Yes.
Q. And then trim out the whole thing?
A. Yes.
Q. Did you notice anything unusual about the
framing in the bathroom?
A. No.
Q. Do you know what kind of material the studs
were?
A. No.
Q. And were you also on the job at least once a
week for that remodel?
A. Yes.
Q. Was it all job supervision or did you ever
put your nail bags on? I think you said you installed
the toilet?
A. Yes, I didn't put my bags on for any
carpentry.
Q. But again, you were there every week so you
would have seen the exposed interior walls?
A. Yes.
Q. Do you know how old this house was?
A. No.
Q. Do you understand the difference between
nominal and actual sizes?
A. Yes.
Q. Can you explain that for me?
A. Nominal lumber is what you call the lumber,
say, a 2-by-4, but in actuality it is planed down so
it's inch-and-a-half-by-three-and-a-half inches.
Q. Do you have any understanding when lumber was
changed from actual size to nominal size -- nominal
sizing?
A. Understanding of what?
Q. Of when they started changing framing from
actual sizes to nominal sizing.
A. No.
Q. Do you know what a braced wall panel is?
A. Yes.
Q. Can you explain that for me?
A. From my understanding, it is an engineered
wall that isn't specifically engineered to that
building; it's prescribed engineering.
Q. By "prescribed," are you meaning it's
essentially a safe harbor that the code allows without
the necessity of actual calculations, structural
calculations?
A. Yes.
MS. DiBENEDETTO: Objection. Misstates prior
testimony, but...
BY MR. REDENBACHER: Q. That was correct?
A. Yes.
Q. Do you know what methods -- what prescribed
methods are available under the code for braced wall
panels?
A. Not off the top of my head.
Q. Can you tell me the most common braced wall
panel that your company tends to build?
A. Plywood nailed to the wall surface.
Q. Can you tell me the sizing of the plywood?
A. Half inch.
Q. And do you -- is it one side, two sides?
A. Um, that would be in the code. I don't have
the code memorized.
Q. Do you know what the nailing pattern would be
offhand?
A. No.
Q. If we go and look at the plans, Exhibit 4 --
and, again, these are job copy approved plans; correct?
A. Yes.
Q. Um, is there a difference in your mind
between an approved set of plans and a set of plans
that don't have the stamp on 'em?
A. Yes.
Q. What would that difference be?
A. The approved set of plans are the final set
of plans.
Q. And you have to build to those plans;
correct?
A. Yes.
Q. Does it also mean that the county or the
governing body that oversees that particular area has
said that these are okay, you can build it to these
plans and everything will be all right, as far as they
are concerned?
MS. DiBENEDETTO: Objection. Calls for
expert opinion, calls for legal opinion, speculation.
You can answer, if you can.
THE WITNESS: Is it my opinion -- what did
you say? What was the question?
MR. REDENBACHER: Could you read it back,
please?
(Record read as requested.)
THE WITNESS: Not necessarily.
BY MR. REDENBACHER: Q. When is that not
true?
A. The building inspector may see something that
they don't approve of.
Q. And the building inspector can override the
approved set of plans as set by the county engineer or
the city engineer?
MS. DiBENEDETTO: Same objections, sorry,
Gary.
THE WITNESS: I don't know that.
BY MR. REDENBACHER: Q. Well, what kind of
things are you aware of where the building inspector
that has the authority to override the approved set of
plans?
MS. DiBENEDETTO: Same objections, vague and
overbroad.
THE WITNESS: I don't know.
BY MR. REDENBACHER: Q. Can you think of
any situations where a building inspector has come up
to you and told you to deviate from the plan, the
approved set of plans?
A. Yes, I can.
Q. What situations were those?
A. I recall a foundation that there was quite a
bit of surface water in the soil, and the inspector
required that some additional work be done.
Q. Do you know what kind of additional work he
required?
A. We -- well, how I solved it was I called the
engineer and the engineer came up with a solution which
we did and it took care of the problem.
Q. So that solution -- actually, the problem was
not in the approved plans, it was something extra that
he had noticed that needed to be addressed?
A. In that case, yes.
Q. Okay. Do you know of any time in your career
when a building official has come out and actually
disagreed with what the approved plans said and said,
You have to deviate from this approved set of plans?
A. I don't remember.
Q. But you can't recall any --
A. I can't recall --
Q. -- instance?
A. -- any.
Q. If you look at A-9 on Exhibit 4 and you look
at the braced wall panels here, and do you know the
difference here between this section up here, which
doesn't have one, but I suspect it's supposed to have a
"1" here, and the section down here, which is 2, do you
know what the difference is between these two?
A. Well, one thing I see right here is that in
Detail 2, it shows second story with braced wall panels
in accordance with section 2320 dot 11 dot 3.
Q. Okay. So would it be fair to say this is a
floor -- first-floor raised wall panel? This is a
second -- for -- or for a one-story building and this
is for a two-story building?
A. I'm not sure.
Q. Well, other than that, you don't see any
other differences; correct?
A. No.
Q. And what are the requirements for the
plywood, according to this approved set of plans?
A. Both of these details, it says three-eighths
inch plywood, each face with 8 D common nails at six
inches on center, all panel edges blocking at all
plywood edges, alternate three-quarter inch plywood one
face.
Q. Is there any reason why the Lechner's house
wouldn't have received a single face -- facing of
plywood three-quarter inch, the alternate, in the
first-floor plans?
A. We were told we couldn't do that.
Q. What did the approved set of plans say you
could do?
A. Well, that's the detail on the approved set
of plans.
Q. And who told you you couldn't do a single
facing of plywood?
A. I'm not sure.
MR. REDENBACHER: Mark this next in line.
THE REPORTER: No. 20.
(Exhibit identified: Deposition 20.)
MR. REDENBACHER: I'm going to assume,
although I don't know for certain, that the operative
building code for this set of plans was a 2001
California Building Code.
Q. Do you know?
A. I don't know.
Q. Well, in any event, just to let you know, the
1997 building code is identical on this particular
issue and we could go in to that if you want.
If we were to look at section 2320 point 11
point 2, No. 3, second page right column -- first of
all, you'll see there are eight different braced wall
panels that are approved by code that don't have to be
engineered. Is that correct?
MS. DiBENEDETTO: And I'll object, and -- to
the extent it calls for an expert opinion with respect
to the interpretation of this code section.
THE WITNESS: Which number are we referring
to?
MR. REDENBACHER: Look on the right side
here, you'll see numbers 1 through 8.
THE WITNESS: Okay.
MR. REDENBACHER: Those are all braced wall
panels, as it says, "construction of braced wall panels
shall be one of the following methods," then you have
your choice of one, two, three, four, five, six, seven
or eight, if you are a designer or craftsman or anyone
else; and if you, theoretically, according to the code,
are building according to any of these eight you are
okay without the need for further engineering. There
are some qualifications, I admit, but let's look at
No. 3.
It says, "wood structural panel sheathing
with a thickness not less than five-sixteenths of an
inch for 16-inch stud spacing and not less than
three-eighths of an inch for 24-inch stud spacing in
accordance with Table 23-II-A-1 and Table 23-IV-D-1."
Q. Do you see that?
A. Yes.
Q. If we compare what the approved set of plans
show, it requires -- are the studs spaced 16 or
24 inches on center? I can't read it from here. Kind
of regardless -- because it has to be at least
three-eighths of an inch regardless of whether it's 24
or 16, according to the code?
A. I don't think it specifies stud centers.
Q. No. But regardless of whether it's 16 inch
or 24 inch, it has to have at least three-eighths of an
inch. That's what No. 3 says; correct?
A. Uh-huh, yes.
Q. This one goes up to -- what's the alternative
three-quarters of an inch, three-quarter inch plywood?
A. Yes.
Q. So at least, according to this detail, it
exceeds the code's minimum. Is that correct?
A. It appears to be.
Q. If we then turn to table 23-IV-C-1, braced
wall panels, you'll see the seismic zone, because all
braced wall panels have to be matched up with a
particular seismic zone.
Do you know which seismic zone we are in?
A. No.
Q. If you'll take my word for it, we happen to
be in seismic zone 4, which means that you would have
to look at the bottom one that says the seismic zone
2-B, 3 and 4, and there are three choices.
Of course, we are first story of two stories
or the second of three stories; and then it gives you
an indication of which of the eight braced wall panels
you can utilize in that seismic zone. And we can see
that No. 3 can be used in seismic zone 4.
A. Yes.
Q. So I guess with all this in mind, my question
is -- again, if you know: Why was the alternative of a
single plywood facing on the first floor walls not
utilized in the Lechner-Dyer residence?
A. We were told that we couldn't do it that way.