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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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 2
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
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.
///
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 3
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
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.
FORM INTERROGATORY NO. 3.1:
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.
RESPONSE TO FORM INTERROGATORY NO. 3.1:
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.
FORM INTERROGATORY NO. 3.2:
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 4
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
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.
RESPONSE TO FORM INTERROGATORY NO. 3.2:
No.
FORM INTERROGATORY NO. 3.3:
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.
RESPONSE TO FORM INTERROGATORY NO. 3.3:
No.
FORM INTERROGATORY NO. 3.4:
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.
RESPONSE TO FORM INTERROGATORY NO. 3.4:
No.
FORM INTERROGATORY NO. 3.5:
Are you an unincorporated association? If so, state:
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 5
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
(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.
RESPONSE TO FORM INTERROGATORY NO. 3.5:
No.
FORM INTERROGATORY NO. 3.6:
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.
RESPONSE TO FORM INTERROGATORY NO. 3.6:
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.
RESPONSE TO FORM INTERROGATORY NO. 3.7:
No.
FORM INTERROGATORY NO. 4.1:
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?
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 6
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
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.
RESPONSE TO FORM INTERROGATORY NO. 4.1:
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.
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 7
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
(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.
FORM INTERROGATORY NO. 4.2:
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.
RESPONSE TO FORM INTERROGATORY NO. 4.2:
No.
FORM INTERROGATORY NO. 12.1:
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).
RESPONSE TO FORM INTERROGATORY NO. 12.1:
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.
///
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 8
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
FORM INTERROGATORY NO. 12.2:
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.
RESPONSE TO FORM INTERROGATORY NO. 12.2:
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.
FORM INTERROGATORY NO. 12.3:
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.
RESPONSE TO FORM INTERROGATORY NO. 12.3:
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 9
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
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.
FORM INTERROGATORY NO. 12.4:
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.
RESPONSE TO FORM INTERROGATORY NO. 12.4:
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 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.
FORM INTERROGATORY NO. 12.5:
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 10
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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
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.
RESPONSE TO FORM INTERROGATORY NO. 12.5:
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. Without waiving any of said
objections, Responding Party responds as follows: No.
(a) N/A.
(b) N/A.
(c) N/A.
FORM INTERROGATORY NO. 12.6:
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.
RESPONSE TO FORM INTERROGATORY NO. 12.6:
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 11
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
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. Without waiving any of said
objections, Responding Party responds as follows: No.
(a) N/A.
(b) N/A.
(c) N/A.
(d) N/A.
FORM INTERROGATORY NO. 12.7:
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.
RESPONSE TO FORM INTERROGATORY NO. 12.7:
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. Without waiving any of said
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.
FORM INTERROGATORY NO. 14.1:
Do YOU OR ANYONE ACTING ON YOUR BEHALF contend that any PERSON
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 12
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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
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.
RESPONSE TO FORM INTERROGATORY NO. 14.1:
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. Without waiving any of said
objections, Responding Party responds as follows:
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. Without waiving any of said
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.
FORM INTERROGATORY NO. 14.2:
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;
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 13
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(d) the name and ADDRESS of the court or administrative agency, names of the parties,
and case number.
RESPONSE TO FORM INTERROGATORY NO. 14.2:
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. Without waiving any of said
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.
FORM INTERROGATORY NO. 15.1:
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.
RESPONSE TO FORM INTERROGATORY NO. 15.1:
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 14
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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
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 15
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proportion to the amount of fault attributed to its own negligence and carelessness.
a. Responding Party bases this denial on documents produced in this litigation and
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.
3. MV&P is informed and believes, and thereon alleges, that any and all events, happenings,
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 16
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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
injuries or damages, if any, alleged in the First Amended Complaint were a direct result of
an Act of God.
a. Responding Party bases this denial on documents produced in this litigation and
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.
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 17
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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
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 18
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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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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.
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 19
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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
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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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.
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 20
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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
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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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.
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 21
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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
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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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.
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 22
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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
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.
9. MV&P is informed and believes, and thereon alleges, that the doctrine of unclean hands
bars the First Amended Complaint.
a. Responding Party bases this denial on documents produced in this litigation and
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.
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 23
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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
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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 24
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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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 25
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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
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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 26
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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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
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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
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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 28
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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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 29
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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
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.
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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28 Collins Collins Muir + Stewart LLP 1999 Harrison Street Suite 1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 31
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evidence produced by parties to this litigation.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 32
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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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 33
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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
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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 34
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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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 35
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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
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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 36
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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
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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
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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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
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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. 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.
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.
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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28 Collins Collins Muir + Stewart LLP 1999 Harrison Street Suite 1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101
a. Responding Party bases this denial on documents produced in this litigation and
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. 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.
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
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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.
26. MV&P is informed and believes, and thereon alleges, that Plaintiff is not entitled to recover
consequential damages.
a. Responding Party bases this denial on documents produced in this litigation and
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. 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
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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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
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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. 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.
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.
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).
a. Responding Party bases this denial on documents produced in this litigation and
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
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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. 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.
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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
testimony given at deposition, including but not limited to the fact that Responding
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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. 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.
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
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evidence produced by parties to this litigation.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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. 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
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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.
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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
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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. 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.
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.
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.
a. Responding Party bases this denial on documents produced in this litigation and
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
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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. 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.
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.
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.
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. 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.
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
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among Responding Party and other parties to the project, and other documentary
evidence produced by parties to this litigation.
FORM INTERROGATORY NO. 17.1:
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.
RESPONSE TO FORM INTERROGATORY NO. 17.1:
(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.
(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) 5.
(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
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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.
(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) 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
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
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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
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. 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.
(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. In addition,
(a) 10.
(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.
(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
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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. In addition,
(a) 12.
(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.
(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. In addition,
(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.
(c) Carl McLarand, Ernie Vasquez, both of whom may be contacted through counsel.
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(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. 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.
(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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(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. 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) 16.
(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. 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
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
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others. William Cilker, Sr. had ultimate responsibility for the decision as to how to pour
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.
(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. 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). 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.
(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. 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
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 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.
(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. 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
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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). 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.
(a) 19.
(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. 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
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 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.
(c) Carl McLarand, Ernie Vasquez, both of whom may be contacted through counsel.
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(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. 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). 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.
(a) 25.
(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
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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.
(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. 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.
(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.
(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. 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.
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(a) 27.
(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.
(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. 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.
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.
RESPONSE TO FORM INTERROGATORY NO. 50.1:
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
may modify the Professional Services Agreement, in part. Responding Party’s
investigation of this matter is on-going.
(e) 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.
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(f) 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.
FORM INTERROGATORY NO. 50.2:
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.
RESPONSE TO FORM INTERROGATORY NO. 50.2:
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:
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.
FORM INTERROGATORY NO. 50.3:
Was performance of any agreement alleged in the pleadings excused? If so, identify each
agreement and state why performance was excused.
RESPONSE TO FORM INTERROGATORY NO. 50.3:
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
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 65
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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
unduly burdensome, overbroad, vague, and calls for a legal conclusion. Without waiving any of the
foregoing objections, Responding Party responds as follows:
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.
FORM INTERROGATORY NO. 50.4:
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.
RESPONSE TO FORM INTERROGATORY NO. 50.4:
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:
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.
FORM INTERROGATORY NO. 50.5:
Is any agreement alleged in the pleadings unenforceable? If so, identify each unenforceable
agreement and state why it is unenforceable.
RESPONSE TO FORM INTERROGATORY NO. 50.5:
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:
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.
19010 – RSPS OF MV&P TO FORM ROGS 1 FROM PLTF 66
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FORM INTERROGATORY NO. 50.6:
Is any agreement alleged in the pleadings ambiguous? If so, identify each ambiguous
agreement and state why it is ambiguous.
RESPONSE TO FORM INTERROGATORY NO. 50.6:
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:
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.