1 samuel j. muir (sbn 89883) stephen b. litchfield (sbn … · 2016-07-11 · samuel j. muir (sbn...

19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 1

RESPONSES OF McLARAND, VASQUEZ & PARTNERS, INC. TO FORM INTERROGATORIES, SET ONE, FROM PLAINTIFF

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28 Collins Collins Muir + Stewart LLP 1999 Harrison Street Suite 1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101

SAMUEL J. MUIR (SBN 89883) STEPHEN B. LITCHFIELD (SBN 284951) COLLINS COLLINS MUIR + STEWART LLP 1999 Harrison Street, Suite 1700 Oakland, CA 94612 (510) 844-5100 – FAX (510) 844-5101 Attorneys for Defendant McLARAND, VASQUEZ & PARTNERS, INC. (erroneously sued herein as MCLARLAND, VARQUEZ & PARTNERS, INC.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA CLARA —DOWNTOWN DISTRICT

CILKER APARTMENTS, LLC, Plaintiffs, vs. WESTERN NATIONAL CONSTRUCTION, MCLARLAND, VARQUEZ & PARTNERS, INC., GROUP M ENGINEERS, GENTRY ASSOCIATES CONSTRUCTION CONSULTANTS, LARCO INDUSTRIES, FITCH PLASTERING, COURTNEY WATERPROOFING, CELL CRETE, LOS NIETOS CONSTRUCTION, MADERA FRAMING, KELLY DOOR, TARA COATNGS, LDI, ADM PAINTING, ALLIANCE BUILDING PRODUCT, JOS. J. ALBANESE, ANDERSON TRUSS, CALIFORNIA CLASSIC PAVERS, CASEY-FOGIL CONCRETE CONTRACTORS, CENTRAL COAST STAIRS, COMMERCIAL ROOF MANAGEMENT, DAVEY ROOFING, INC., DEMETRIS PAINTING II, INC., DOORWAY MFG., LANDSCAPE PROS, MULTI-BUILDING STRUCTURES, PARK WEST, PYRAMID BUILDERS, ROBECKS WELDING & FABRICATION, RYLOCK COMPANY, SUMMIT WINDOW & PATIO DOOR, VANGUARD and DOES 1-100, inclusive,

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO. 1-13-CV-258281 Complex [Assigned to Hon. Peter H. Kirwan; Dept. 1] RESPONSES OF MCLARAND, VASQUEZ & PARTNERS, INC. TO FORM INTERROGATORIES, SET ONE, PROPOUNDED BY PLAINTIFF CILKER APARTMENTS, LLC Complaint Filed: 12/26/13 FAC Filed: 03/20/14 Trial Date: 02/01/16



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Defendants. _____________________________________

) ) )

WESTERN NATIONAL CONSTRUCTION, Cross-Complainant, vs. ROES 1 – 500, inclusive, Cross-Defendants.

) ) ) ) ) ) ) ) ) )

PROPOUNDING PARTY: Plaintiff CILKER APARTMENTS, LLC

RESPONDING PARTY: Defendant McLARAND, VASQUEZ & PARTNERS, INC.

SET NO.: One (1)

TO PLAINTIFF CILKER APARTMENTS, LLC AND TO THEIR ATTORNEYS OF

RECORD HEREIN:

COMES NOW Defendant McLARAND, VASQUEZ & PARTNERS, INC. (“Responding

Party”) and hereby responds to Plaintiff CILKER APARTMENTS, LLC’s (“Propounding Party”)

Form Interrogatories, Set One, as follows:

PRELIMINARY STATEMENT

This Responding Party has not completed discovery in this action and has not completed

preparation for trial. All of the responses contained herein are based only upon such information

and documents as are presently available to and specifically known by this Responding Party. The

following responses are given without prejudice to Responding Party's right to produce evidence of

any subsequently-discovered fact(s) at the time of trial. These responses are made in a good faith

effort to supply as much factual information and as much specification of legal contentions as is

presently known, but should in no way be to the prejudice of the Responding Party in relation to

further discovery.

///



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RESPONSES TO FORM INTERROGATORIES

FORM INTERROGATORY NO. 1.1:

State the name, ADDRESS, telephone number, and relationship to you of each PERSON who

prepared or assisted in the preparation of the responses to these interrogatories. (Do not identify

anyone who simply typed or reproduced the responses.)

RESPONSE TO FORM INTERROGATORY NO. 1.1:

Collins Collins Muir + Stewart LLP, 1999 Harrison Street, Suite 1700, Oakland, California

94612; (510) 844-5100.


Are you a corporation? If so, state:

(a) the name stated in the current articles of incorporation;

(b) all other names used by the corporation during the past 10 years and the dates each was

used;

(c) the date and place of incorporation;

(d) the ADDRESS of the principal place of business; and

(e) whether you are qualified to do business in California.


Responding Party was a corporation, formed in 1975 and dissolved in 2007.

(a) McLarand, Vasquez & Partners, Inc.

(b) N/A.

(c) August 1, 1975; Irvine, California.

(d) 1900 Main Street, Suite 800, Irvine, California 92614.

(e) Not since the dissolution.


Are you a partnership? If so, state:

(a) the current partnership name;

(b) all other names used by the partnership during the past 10 years and the dates each was



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used;

(c) whether you are a limited partnership and, if so, under the laws of what jurisdiction;

(d) the name and ADDRESS of each general partner; and

(e) the ADDRESS of the principal place of business.


No.


Are you a limited liability company? If so, state:

(a) the name stated in the current articles of organization;

(b) all other names used by the company during the past 10 years and the date each was

used;

(c) the date and place of filing of the articles of organization;

(d) the ADDRESS of the principal place of business; and

(e) whether you are qualified to do business in California.


No.


Are you a joint venture? If so, state:

(a) the current joint venture name;

(b) all other names used by the joint venture during the past 10 years and the dates each

was used;

(c) the name and ADDRESS of each joint venturer; and

(d) the ADDRESS of the principal place of business.


No.


Are you an unincorporated association? If so, state:



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(a) the current unincorporated association name;

(b) all other names used by the unincorporated association during the past 10 years and the

dates each was used;

(c) the ADDRESS of the principal place of business.


No.


Have you done business under a fictitious name during the past 10 years? If so, for each

fictitious name state:

(a) the name;

(b) the dates each was used;

(c) the state and county of each fictitious name filing;

(d) the ADDRESS of the principal place of business.


No.

FORM INTERROGATORY NO.3.7:

Within the past five years has any public entity registered or licensed your businesses? If so,

for each license or registration:

(a) identify the license or registration;

(b) state the name of the public entity;

(c) state the date of issuance and expiration.


No.


At the time of the INCIDENT, was there in effect any policy of insurance through which you

were or might be insured in any manner (for example, primary, pro-rata, or excess liability coverage or

medical expense coverage) for the damages, claims, or actions that have arisen out of the INCIDENT?



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If so, for each policy state:

(a) the kind of coverage;

(b) the name and ADDRESS of the insurance company;

(c) the name, ADDRESS, and telephone number of each named insured;

(d) the policy number;

(e) the limits of coverage for each type of coverage contained in the policy;

(f) whether any reservation of rights or controversy or coverage dispute exists between

you and the insurance company; and

(g) the name, ADDRESS, and telephone number of the custodian of the policy.


Yes.

(a) Architects & Engineers Professional Liability.

(b) Starr Surplus Lines Insurance Company, 399 Park Avenue, 8th Floor, New York NY

10022, 1-646-227-6300.

(c) McLarand Vasquez Emsiek & Partners, Inc.

McLarand Vasquez & Partners, Inc.

MV&P International, Inc.

MVE Pacific, Inc.

MVE Studio, Inc.

MVE Group, Inc.

MVE International, Inc.

Carl F. McLarand Architect, Inc.

Ernesto M. Vasquez Architect, Inc.

Richard F. Emsiek Architect, Inc.

Carl McLarand Associates, Inc.

Carl McLarand & Associates

(d) SLSL-PRO-262306-13.



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(e) Original policy limits for coverage;

$2,000,000 each claim / $3,000,000 annual aggregate.

(f) No.

(g) Kathy Solomon, 740 Waukegan Road, Suite 204, Deerfield, IL 60015. (847) 607-9023.


Are you self-insured under any statute for the damages, claims, or actions that have arisen out

of the INCIDENT? If so, specify the statute.


No.


State the name, ADDRESS, and telephone number of each individual:

(a) who witnessed the INCIDENT or the events occurring immediately before or after

the INCIDENT;

(b) who made any statement at the scene of the INCIDENT;

(c) who heard any statement made about the INCIDENT by any individual at the scene;

and

(d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of

the INCIDENT (except for expert witnesses covered by Code of Civil Procedure,

section 2034).


Objection. This request is overly broad, harassing and duplicative in light of responses already

provided in compliance with Case Management Order Number 1 in this action. Further, this request is

inapplicable to the case at issue between the parties as no “Incident” exists, as Responding Party

understands the term. Responding Party has already designated a Person Most Knowledgeable and has

made that individual available for multiple days of deposition. As such, Responding Party cannot

respond intelligently to this interrogatory.

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Have YOU OR ANYONE ACTING ON YOUR BEHALF interviewed any individual

concerning the INCIDENT? If so, for each individual state:

(a) the name, ADDRESS, and telephone number of the individual interviewed;

(b) the date of the interview; and

(c) the name, ADDRESS, and telephone number of the PERSON who conducted the

interview.









Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded

statement from any individual concerning the INCIDENT? If so, for each statement state:

(a) the name, ADDRESS, and telephone number of the individual from whom the

statement was obtained;

(b) the name, ADDRESS, and telephone number of the individual who obtained the

statement;

(c) the date the statement was obtained; and

(d) the name, ADDRESS, and telephone number of each PERSON who has the original

statement or a copy.






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Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any photographs, films, or

videotapes depicting any place, object, or individual concerning the INCIDENT or plaintiff’s injuries?

If so, state:

(a) the number of photographs or feet of film or videotape;

(b) the places, objects, or PERSONS photographed, filmed, or videotaped;

(c) the date the photographs, films, or videotapes were taken;

(d) the name, ADDRESS, and telephone number of the individual taking the photographs,

films, or videotapes; and

(e) the name, ADDRESS, and telephone number of each PERSON who has the original

or a copy.






made that individual available for multiple days of deposition. As such, Responding Party can only

respond that all of the requested items, including photographs, have been produced through the

litigation pursuant to the terms of the Case Management Order.


Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any diagram,

reproduction, or model of any place or thing (except for items developed by expert witnesses



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covered by Code of Civil Procedure sections 2034.210-2034.310) concerning the INCIDENT? If

so, for each item state:

(a) the type (i.e. diagram, reproduction, or model);

(b) the subject matter; and

(c) the name, ADDRESS, and telephone number of each PERSON who has it.






made that individual available for multiple days of deposition. Without waiving any of said

objections, Responding Party responds as follows: No.

(a) N/A.

(b) N/A.

(c) N/A.


Was a report made by any PERSON concerning the INCIDENT? If so, state:

(a) the name, title, identification number, and employer of the PERSON who made the

report;

(b) the date and type of report made;

(c) the name, ADDRESS, and telephone number of the PERSON for whom the report

was made; and

(d) the name, ADDRESS, and telephone number of each PERSON who has the original

or a copy of the report.






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objections, Responding Party responds as follows: No.

(a) N/A.

(b) N/A.

(c) N/A.

(d) N/A.


Have YOU OR ANYONE ACTING ON YOUR BEHALF inspected the scene of the

INCIDENT? If so, for each inspection state:

(a) the name, ADDRESS, and telephone number of the individual making the inspection

(except for expert witnesses covered by Code of Civil Procedure, sections 2034.210-

2034.310); and

(b) the date of the inspection.







objections, Responding Party responds as follows: No, except to the extent site inspections were

allowed pursuant to the terms of Case Management Order Number 1.

(a) N/A.

(b) N/A.


Do YOU OR ANYONE ACTING ON YOUR BEHALF contend that any PERSON



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involved in the INCIDENT violated any statute, ordinance or regulation and that the violation was a

legal (proximate) cause of the INCIDENT? If so, identify the name, ADDRESS, and telephone

number of each PERSON and the statute, ordinance, or regulation that was violated.







objections, Responding Party responds as follows:






objections, Responding Party responds as follows: Yes, based on the discovery conducted to date,

Requesting Party, Western National Construction, and each subcontractor or consultant retained by

both Requesting Party and Western National Construction failed to follow certain statutes, ordinances,

or regulations, including but not limited to the Uniform Building Code. Discovery is on-going and

Responding Party reserves the right to update this response.


Was any PERSON cited or charged with a violation of any statute, ordinance, or regulation as

a result of this INCIDENT? If so, for each PERSON state:

(a) the name, ADDRESS, and telephone number of the PERSON;

(b) the statute, ordinance, or regulation allegedly violated;

(c) whether the PERSON entered a plea in response to the citation or charge and, if so, the

plea entered;



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(d) the name and ADDRESS of the court or administrative agency, names of the parties,

and case number.







objections, Responding Party responds as follows: Yes, based on the discovery conducted to date,

Requesting Party, Western National Construction, and each subcontractor or consultant retained by

both Requesting Party and Western National Construction failed to follow certain statutes, ordinances,

or regulations, including but not limited to the Uniform Building Code. Discovery is on-going and

Responding Party reserves the right to update this response.


Identify each denial of a material allegation and each special or affirmative defense in your

pleadings and for each:

(a) state all facts upon which you base the denial or special or affirmative defense;

(b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have

knowledge of those facts; and

(c) identify all DOCUMENTS and other tangible things which support your denial or

special or affirmative defense, and state the name, ADDRESS, and telephone number

of the PERSON who has each DOCUMENT.


1. MV&P is informed and believes, and thereon alleges, that the Plaintiff’s First Amended

Complaint, and each cause of action therein, fails to state facts certain and/or sufficient to

constitute a cause of action against MV&P.

a. Responding Party bases this denial on documents produced in this litigation and



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testimony given at deposition, including but not limited to the fact that Responding

Party met and exceeded the standard of care on the project. Prior to its dissolution in

2007, Responding Party was a well-respected architectural firm and leader in the

field of design for multi-family residential apartments. Responding Party designed a

considerable number of projects, both in Southern California and Northern

California, all with tremendous success. Responding Party had unmatched expertise

in this field, including the input of experienced architects such as Carl McLarand

and Ernesto Vasquez. Responding Party designed the project pursuant to the terms

of the Professional Services Agreement entered into between Responding Party and

Cilker Orchards. Responding Party is informed and believes that the negligence and

mismanagement of Requesting Party, Cilker Orchards, Western National

Construction, and each and every subcontractor or consultant retained by Requesting

Party, Cilker Orchards, Western National Construction was the actual and proximate

cause of the damage alleged by Requesting Party. Responding Party performed

construction observation services pursuant to the Professional Services Agreement

entered into between Responding Party and Cilker Orchards and no basis exists for

liability on the party of Requesting Party. Discovery is on-going and Responding

Party reserves the right to amend or update this response, as necessary.

b. Carl McLarand, who may be contacted through counsel.

c. The documents demonstrating these facts include but are not limited to the

Professional Services Agreement entered into between Responding Party and Cilker

Orchards, the plans and specifications produced for this Project, the correspondence

among Responding Party and other parties to the project, and other documentary

evidence produced by parties to this litigation.

2. MV&P is informed and believes, and thereon alleges, that Plaintiff’s alleged damages were

caused in whole or in part by Plaintiff’s conduct and activities, including its own negligence

and carelessness. Therefore, any damages awarded to Plaintiff shall be diminished in



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proportion to the amount of fault attributed to its own negligence and carelessness.


























3. MV&P is informed and believes, and thereon alleges, that any and all events, happenings,



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injuries or damages, if any, alleged in the First Amended Complaint were a direct result of

an Act of God.




























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4. MV&P is informed and believes, and thereon alleges, that if Plaintiff were damaged or

suffered any loss, which MV&P denies, that any such injury and/or loss was the proximate

cause of the intervening and superseding actions on the part of Plaintiff or third parties other

than MV&P, and that by virtue of the intervening and superseding fault, any recovery

against MV&P must be reduced in percentage to the amount of said fault.

























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5. MV&P is informed and believes, and thereon alleges, that Plaintiff failed to exercise

reasonable care and diligence to avoid loss and to minimize the losses and damages, if any,

which Plaintiff suffered. Plaintiff failed to exercise reasonable efforts or to reasonably have

made expenditures, which could have prevented the losses that Plaintiff has allegedly suffered.























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6. MV&P is informed and believes, and thereon alleges, that Plaintiff, by its own conduct, is

equitably estopped from asserting any right to recover as against MV&P.























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7. MV&P is informed and believes, and thereon alleges, that Plaintiff has engaged in conduct

and activities sufficient to constitute a waiver of any alleged negligence or any other

conduct, if any, as set forth in the First Amended Complaint on file herein.






















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8. MV&P is informed and believes, and thereon alleges, that each and every one of Plaintiff’s

causes of action is barred by the doctrine of laches.






















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9. MV&P is informed and believes, and thereon alleges, that the doctrine of unclean hands

bars the First Amended Complaint.






















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10. MV&P is informed and believes, and thereon alleges, that the professional services provided

by or on behalf of MV&P concerning the project which is the subject of the instant action met

the applicable standard of care.





















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11. MV&P is informed and believes, and without admitting that a duty of care was owed, thereon

alleges, that MV&P did not breach any duty of care owed to Plaintiff.

12. MV&P is informed and believes, and thereon alleges, that Plaintiff approved and accepted

MV&P’s services under the contract, thereby waiving its cause of action for breach of

contract as to these Defendants.


















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13. MV&P is informed and believes, and thereon alleges, that Plaintiff approved and accepted

Defendants’ services as full performance under the contract, thereby estopping Plaintiffs’

claim for breach of contract as to these Defendants.

















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14. MV&P is informed and believes, and thereon alleges, that Plaintiff failed to mitigate or

minimize damages, if any there were, in that Plaintiffs failed to properly maintain, control,

construct, inspect, or otherwise conduct the construction activities on the project which is

the subject of this litigation, failed to take into account the conditions at the site at the time

of work on the project, and otherwise failed to take adequate measures to minimize delays,

damages, expenditures, and extra costs, if any there were, during the project.













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15. MV&P is informed and believes, and thereon alleges, that it disclosed all relevant

information pertaining to the subject property and/or project to expunge any further duties

owed by MV&P.












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16. MV&P is informed and believes, and thereon alleges, that the damages, if any, sustained by

Plaintiff at the time(s) and/or place(s) alleged in the First Amended Complaint were a direct

and proximate result of the acts, omissions, or negligence of third parties not within the

knowledge or control of MV&P, and therefore were sustained, if at all, without any

negligence, whether active or passive, on the part of MV&P.









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17. MV&P is informed and believes, and thereon alleges, that at all times mentioned in the First

Amended Complaint, any damage or loss, if any, allegedly suffered by Plaintiff herein was

directly and proximately caused and contributed to by the negligence or fault of persons

separate and apart from MV&P, whether they be named or unnamed in the within action. In

the event a finding is made that negligence exists on the part of MV&P which proximately

contributed to Plaintiff’s injuries and/or damages, the amount of recovery from MV&P, if any,

shall be reduced on the basis of the comparative negligence of such other persons, named or

unnamed, which MV&P alleges directly and proximately caused Plaintiff’s injuries. MV&P



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will seek from the Court appropriate instructions to the trier of fact apportioning the negligence

or fault, if any, attributable to any such other persons, whether named or unnamed, for any

injury, damage or loss, if any, suffered by Plaintiff herein.



























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18. MV&P is informed and believes, and thereon alleges, that if it is found partially or completely

at fault for any or all of the Plaintiff’s alleged damages, then MV&P is entitled to an offset

and/or credit for any and all money promised, had, or received by Plaintiff relating in any way

to the issues and claims set forth in the pleadings or discovery in this case.

























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19. MV&P is informed and believes, and thereon alleges, that it did not make any warranties or

guarantees, express, implied, or apparent, upon which Plaintiff, as well as any other parties to

this action or third parties not presently involved with this matter, may rely.
























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20. MV&P is informed and believes, and thereon alleges, that if it is found that MV&P made a

warranty, express or implied, which MV&P denies, then such warranty, if any, was

disclaimed, excluded and limited in all of its parts and in its entirety, explicitly and

conspicuously, both orally and in writing, in words that plainly conveyed the meaning to

Plaintiff or third parties of such disclaimed exclusion and limitation and that such warranty,

if any, was also excluded and modified by the course of dealing and usage of the trade, all

as to preclude Plaintiff or third parties from reliance upon or recovery from said warranty.



















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21. MV&P is informed and believes, and thereon alleges, that Plaintiff knew of the risks and

dangers of hiring contractors on the project that is the subject of this action, yet Plaintiff

nevertheless voluntarily assumed these risks and dangers and are therefore barred from

recovery in proportion to Plaintiff’s comparative fault.

















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22. MV&P is informed and believe, and thereon alleges, that the First Amended Complaint on

file herein, and the whole thereof, including each and every purported cause of action

contained therein, is barred because of failure to comply with the mandatory certificate of

merit requirement set forth in C.C.P. § 411.35.















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23. MV&P is informed and believes, and thereon alleges, that Plaintiff’s alleged damages, if

any, were wholly or partly contributed to or proximately caused by Plaintiff’s and/or third

parties’ conduct and activities, including Plaintiff’s and/or third parties’ violations of

applicable building codes, industry standards, statutes, ordinances, among others. These

violations amount to negligence per se, which may limit or completely bar Plaintiff’s claim

against MV&P. MV&P is entitled to an equitable apportionment of the damages in relation

to the negligence or wrongdoing of the Plaintiff and/or third parties.










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24. All of Plaintiff’s causes of action alleged in the First Amended Complaint are barred by the

running of the statute of limitations, including, but not limited to, Code of Civil Procedure

sections 335.1, 337, 337.1, 337.15, 338, 339 and 343.









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liability on the party of Requesting Party. Responding Party is further informed and

believes that Requesting Party, Cilker Orchards, and Western National Construction

knew of or should have known of defects, both latent and patent, at the project site

as early as 2003 and that each and every one of them concealed or failed to timely

file a complaint within the applicable statute of limitations. Discovery is on-going

and Responding Party reserves the right to amend or update this response, as

necessary.







25. MV&P is informed and believes, and thereon alleges, that the First Amended Complaint,

and each and every cause of action therein, is barred by the Completed and Accepted

Doctrine.



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necessary.






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26. MV&P is informed and believes, and thereon alleges, that Plaintiff is not entitled to recover

consequential damages.

























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necessary.







27. MV&P is informed and believes, and thereon alleges, that Plaintiff has refused to allow

MV&P reasonable opportunities to cure any alleged defects or deficiencies in the services

provided. Therefore, Plaintiff is estopped and barred from any claim predicated upon the

failure to cure or remedy these alleged defects or deficiencies, if any.


















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necessary.







28. MV&P is informed and believes, and thereon alleges, that Plaintiff’s negligence claim is

barred under the economic loss doctrine set forth in Aas v. Superior Court (2000) 24 Cal. 4th

627 (superseded by statute on other grounds).












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necessary.







29. MV&P is informed and believes, and thereon alleges, that Plaintiff’s action, as well as the

damages sought therein are barred, whether in whole or in part, by the terms of the agreement

between MV&P and Plaintiff by failing to follow the conditions precedent to dispute

resolution.





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necessary.








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30. MV&P is informed and believes, and thereon alleges, that if any contract, obligations or

amendments have been entered into, any duty or performance of MV&P is excused by

reason of failure of consideration, waiver, breach of condition precedent, breach by

Plaintiff, impossibility of performance, prevention by Plaintiff, and/or frustration of

purpose.
























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necessary.







31. MV&P is informed and believes, and thereon alleges, that at all times herein relevant there

existed a contract whereby MV&P and Plaintiff negotiated and expressly agreed to limit the

liability of MV&P.


















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necessary.







32. MV&P is informed and believes, and thereon alleges, that the First Amended Complaint,

and each and every purported cause of action contained therein, is barred, whether in whole or

in part, by the doctrine of in pari delicto.












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necessary.







33. MV&P is informed and believes, and thereon alleges, that it presently has insufficient

knowledge or information on which to form a belief as to whether it may have additional, as

yet unstated affirmative defenses available. MV&P reserves herein the right to assert

additional defenses in the event that discovery, whether formal or informal, indicates that such

additional defenses would be appropriate.




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necessary.







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Is your response to each request for admissions served with these interrogatories an unqualified

admission? If not, for each response that is not an unqualified admission:

(a) State the number of the request;

(b) State all facts upon which you base your response;

(c) State the names, ADDRESSES, and telephone numbers of all PERSONS who have

knowledge of those facts; and

(d) Identify all DOCUMENTS and other tangible things that support your response and

state the name, ADDRESS, and telephone number of the PERSON who has each

DOCUMENT or thing.


(a) 1.

(b) Responding Party denies this based on the fact, among other things, that the Professional

Services Agreement entered into between Responding Party and Cilker Orchards requires

consent from Responding Party prior to assignment. Responding Party never gave such

consent and therefore Requesting Party and Cilker Orchards could not have effectuated a

legally binding assignment of all legal rights.

(c) Carl McLarand, Ernie Vasquez, both of whom may be contacted through counsel.

(d) The documents demonstrating these facts include but are not limited to the Professional

Services Agreement entered into between Responding Party and Cilker Orchards, the plans

and specifications produced for this Project, the correspondence among Responding Party

and other parties to the project, and other documentary evidence produced by parties to this

litigation.

(a) 4.



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(b) Responding Party was the Architect of Record for the project and completed its services

pursuant to the Professional Services Agreement entered into between Responding Party

and Cilker Orchards. Responding Party leased employees from McLarand, Vasquez,

Emsiek & Partners, Inc. pursuant to a Board Resolution and lease agreement between the

entities. At all times, Responding Party was the Architect of Record and the only architect

performing services for the Project. All invoices for the project were sent by Responding

Party and each payment from Cilker Orchards was made out to Responding Party. At all

times, Responding Party and McLarand, Vasquez, Emsiek & Partners, Inc. maintained

separate bank accounts, maintained separate financial accounting records, operated

independently of each other with unique Boards of Directors, separate minutes, distinct

resolutions, and separate purposes.






litigation.

(a) 5.







Party and each payment from Cilker Orchards was made out to Responding Party. At all

times, Responding Party and McLarand, Vasquez, Emsiek & Partners, Inc. maintained



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separate bank accounts, maintained separate financial accounting records, operated

independently of each other with unique Boards of Directors, separate minutes, distinct

resolutions, and separate purposes.






litigation.

(a) 7.

(b) Responding Party met and exceeded the standard of care on the project. Prior to its

dissolution in 2007, Responding Party was a well-respected architectural firm and leader

in the field of design for multi-family residential apartments. Responding Party

designed a considerable number of projects, both in Southern California and Northern

California, all with tremendous success. Responding Party had unmatched expertise in

this field, including the input of experienced architects such as Carl McLarand and

Ernesto Vasquez. Responding Party designed the project pursuant to the terms of the


Orchards. Responding Party is informed and believes that the negligence and

mismanagement of Requesting Party, Cilker Orchards, Western National Construction,

and each and every subcontractor or consultant retained by Requesting Party, Cilker

Orchards, Western National Construction was the actual and proximate cause of the

damage alleged by Requesting Party. Responding Party performed construction

observation services pursuant to the Professional Services Agreement entered into

between Responding Party and Cilker Orchards and no basis exists for liability on the

party of Requesting Party. Discovery is on-going and Responding Party reserves the



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right to amend or update this response, as necessary. Carl McLarand, Ernie Vasquez,

both of whom may be contacted through counsel.

(c) The documents demonstrating these facts include but are not limited to the Professional




litigation. In addition,

(a) 8.

(b) This request calls for premature disclosure of expert opinion protected from discovery

pursuant to Code Civ. Proc. § 20234.210 et seq. and 2018.010 et seq. Responding Party

anticipates that its expert(s) will testify as to these issues but disclosure of information

responsive to this Request is premature and impermissible.







(a) 10.










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(a) 12.











(a) 13.

(b) The podium slab was originally designed with a minimum 1/16” per foot slope, not to

exceed 1/4" (2%), consistent with industry standards, the Americans with Disabilities Act

(“ADA”) and the manufacturer’s recommendations for the originally specified

waterproofing materials, which called for slope to drain. The plans clearly delineate a high

point and low point (drain) where a 1/4” per foot slope is achieved. Testimony from

multiple witnesses has confirmed that the decision of how to pour the podium slab was a

joint decision among Requesting Party, Cilker Orchards, Western National Construction,

subcontractors, Gentry & Associates, the City of San Jose Building Department, and

others. William Cilker, Sr. had ultimate responsibility for the decision as to how to pour

the podium slab.




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litigation. In addition, GEN-2.0 (MVP000323) Disabled Access Notes #5G states that the

floor or landing on each side of a landing shall be level and clear. In order to comply with

ADA requirements the slope necessarily transitions from a level and clear condition in

front of each doorway, to the slope necessary to drain water off the surface, up to a

maximum of 1/4” per foot, as called out in the plans. Further, the cross slope cannot exceed

1/4” per foot. Slope on plans can be shown a number of ways, including by reference to

elevations showing high points and low points. Other documents include, but are not

limited to, Enlarged Slab Plans AB1-1.1, AB1-1.2, AB1-1.3 (MVP000264-MVP000266),

Details 2, 3, and 6 on Sheet A6-2.3 (MVP000214), and Gary Penman’s letter dated March

26, 2001 (MVP000818) creating minimum 1/8” per foot slope by adding topping slab of

cementitious sloping compound, which was subsequently circulated within Western

National (WNC011590).

(a) 14.




waterproofing materials, which called for slope to drain. The plans clearly delineate a high

point and low point (drain) where a 1/4” per foot slope is achieved. Testimony from





the podium slab.



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National (WNC011590).

(a) 16.




waterproofing materials, which called for slope to drain. Requesting Party’s third party

inspector, Gentry Associates, made Requesting Party and Western National Construction

aware of the slope issues related to the construction of the podium. Testimony from






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the podium slab and which waterproofing materials would be installed. After

waterproofing materials had already been installed on the podium slab, Requesting Party

and Western National Construction provided certain details to Responding Party as to how

the installation was accomplished.

















National (WNC011590). In addition, Gentry & Associates memoranda to William Cilker,

Sr. and Western National Construction provide considerable additional detail as to the

improper installation of waterproofing materials, none of which are the responsibility of

Responding Party. Documents evidencing the after the fact requests for approval of

waterproofing installation concepts include, but are not limited to, WNC072560 and

WNC113436-47.



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(a) 17.





























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WNC113436-47.

(a) 19.


















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WNC113436-47.

(a) 25.








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Party and each payment from Cilker Orchards was made out to Responding Party.






litigation. In addition, the checks and invoices for the project and the board resolution

between Responding Party and McLarand, Vasquez, Emsiek & Partners, Inc. regarding the

leasing of employees.

(a) 26.


















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(a) 27.
















FORM INTERROGATORY NO. 50.1

For each agreement alleged in the pleadings:

(a) Identify each DOCUMENT that is part of the agreement and for each state the name,

ADDRESS, and telephone number of each PERSON who has the DOCUMENT;

(b) State each part of the agreement not in writing, the name, ADDRESS, and telephone

number of each PERSON agreeing to that provision, and the date that part of the

agreement was made;

(c) Identify all DOCUMENTS that evidence any part of the agreement not in writing and

for each state the name, ADDRESS, and telephone number of each PERSON who has

the DOCUMENT;



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(d) Identify all DOCUMENTS that are part of any modification to the agreement, and for

each state the name, ADDRESS, and telephone number of each PERSON who has the

DOCUMENT;

(e) State each modification not in writing, the date, and the name, ADDRESS, and

telephone number of each PERSON agreeing to the modification and the date the

modification was made;

(f) Identify all DOCUMENTS that evidence any modification of the agreement not in

writing and for each state the name, ADDRESS, and telephone number of each

PERSON who has the DOCUMENT.


Objection. Responding Party objects to this Request to the extent it requests information

protected by the attorney-client privilege or attorney work product doctrine. Further, this request is

unduly burdensome, overbroad, vague, and calls for a legal conclusion. Without waiving any of the

foregoing objections, Responding Party responds as follows:

(a) The Professional Services Agreement entered into between Responding Party and Cilker

Orchards was produced pursuant to Case Management Order Number One and bears the

Bates range MVP000329-MVP000348.

(b) Not applicable.

(c) Certain contract addendums entered into between Responding Party and Cilker Orchards

may modify the Professional Services Agreement, in part. Responding Party’s

investigation of this matter is on-going.

(d) Certain contract addendums entered into between Responding Party and Cilker Orchards



(e) Certain contract addendums entered into between Responding Party and Cilker Orchards





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(f) Certain contract addendums entered into between Responding Party and Cilker Orchards




Was there a breach of any agreement alleged in the pleadings? If so, for each breach describe

and give the date of every act or omission that you claim is the breach of the agreement.






Yes. Requesting Party, Cilker Orchards, and Western National were required, pursuant to

the specifications for the Project, to hire a full-time third party waterproofing inspector.

Responding Party is informed and believes that such an inspector was never hired. Requesting

Party, Cilker Orchards, and Western National were required, pursuant to the specifications for the

Project, to solicit the attendance of a representative from the waterproofing manufacturer for

inspection of the installation of the waterproofing materials. Responding Party is informed and

believes that such a representative never came to the Project.

Responding Party is further informed and believes that the negligence and mismanagement

of Requesting Party, Cilker Orchards, Western National Construction, and each and every

subcontractor or consultant retained by Requesting Party, Cilker Orchards, Western National

Construction was the actual and proximate cause of the damage alleged by Requesting Party.


Was performance of any agreement alleged in the pleadings excused? If so, identify each

agreement and state why performance was excused.






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Responding Party may have been excused from performance due to non-payment on the

part of Requesting Party and/or Cilker Orchards. Responding Party’s assessment of this is on-going

and discovery is continuing.


Was any agreement alleged in the pleadings terminated by mutual agreement, release, accord

and satisfaction, or novation? If so, identify each agreement terminated, the date of termination, and

the basis of the termination.










Is any agreement alleged in the pleadings unenforceable? If so, identify each unenforceable

agreement and state why it is unenforceable.











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Is any agreement alleged in the pleadings ambiguous? If so, identify each ambiguous

agreement and state why it is ambiguous.






Responding Party is not aware of any agreements alleged in the pleadings as Requesting

Party has refused to identify, with any specificity, which contracts it alleges were breached.

DATED: November 25, 2015 COLLINS COLLINS MUIR + STEWART LLP By: ________________________________ SAMUEL J. MUIR Attorneys for McLARAND VASQUEZ &

PARTNERS, INC.