595866 1(2)

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES, WEST DISTRICT
MALIBU BROADBEACH, L.P., a )
California limited partnership )
Stephen B. Gaggero and )
Billie Sue Gaggero as Trustees )
of the Gaggero Family Trust )
UDT 12-20-86,
)
Plaintiffs, )
)
versus ) No. SC080564
)
STATE FARM GENERAL INSURANCE )
COMPANY, a Corporation; )
DOES 1 through 10, inclusive, )
)
Defendants. )
________________________________)
DEPOSITION OF: STEPHEN GAGGERO
TAKEN ON: October 13, 2004
VOLUME 1: Pages 1 through 150,
inclusive
22402 DEBRA V. HELGESON
CSR No. 3189, RPR

1 VOLUME 1 OF THE DEPOSITION OF
2 STEPHEN GAGGERO, taken on behalf of
3 the Defendant at 801 South Figueroa Street,
4 Suite 1800, Los Angeles, California, on
5 Wednesday, October 13, 2004, at 10:29 A.M.
6 before Debra V. Helgeson, CSR No. 3189, RPR.
7
8
9 APPEARANCES:
10 For Plaintiffs:
11 FOLEY & BEZEK, LLP
BY: PETER J. BEZEK, ESQ.
12 15 West Carrillo Street
Santa Barbara, California 93101
13 (805) 962-9495
14
For Defendant State Farm General
15 Insurance Company:
16 SEDGWICK, DETERT, MORAN & ARNOLD
BY: MARIA L. COUSINEAU, ESQ.
17 801 South Figueroa Street, Suite 1800
Los Angeles, California 90017
18 (213) 426-6900
19
20
21
22
23
24

25
2
MILLER & HELGESON REPORTERS (310) 450-7795 ~ (415)
956-6405 ~ (800) 48-SMART
Smart People Use The Best
1 I N D E X
2 WITNESS PAGE
3 STEPHEN GAGGERO
4 By Ms. Cousineau 5
5
6 E X H I B I T S
7 DEFENDANT'S PAGE
8 40 Notice of Continuance 8
of Taking Deposition
9
41 Document titled 28
10 "Designee Authorization,"
8/5/02, Bates No. CF 0415
11
42 Building Permit Application, 57
12 4/16/02, no Bates number
13 43 Combination Sewer/Septic 59
Permit, 10/28/02, no
14 Bates number
15 44 Document titled "MB LB 79
36268 PCH Guest House
16 Damage Summary as of
7/28/04," Bates Nos.
17 MBLP0361 through MBLP0365
18 45 Invoice from Avenue 107
Hardware, 5/1/03, Bates
19 No. CF 0191
20 46 Invoice from Avalon 121
Engineering, 4/18/03,
21 Bates No. CF 0190

22 47 Building Permit 126
Application, 9/18/02, no
23 Bates number
24 48 Plumbing Permit 127
Application, 9/18/02, no
25 Bates number
3
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1 I N D E X (Continued)
2
3 E X H I B I T S
4
5 PREVIOUSLY MARKED PAGE
6 17 Document titled "MB LP 90
32628 PCH Guest House
7 Damages as of 1/12/04,"
Bates Nos. CF 0099
8 through CF 0105
9
10
11 Q U E S T I O N S M A R K E D
12 PAGE LINE
13 21 6
24 17
14
15
16
17 I N F O R M A T I O N R E Q U E S T E D
18 (None.)

19
20
21
22
23
24
25
4
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1 Los Angeles, California
2 Wednesday, October 13, 2004
3 10:29 A.M.
4
5 -oOo-
6
7 STEPHEN GAGGERO,
8 having declared under penalty of
9 perjury to tell the truth,
10 was examined and testified as follows:
11
12 EXAMINATION
13 BY MS. COUSINEAU:
14 Q Could you state your name for the record,
10:30:08 15 please.

16 A Steven Michael Gaggero.
17 Q Mr. Gaggero, have you ever had your
18 deposition taken before?
19 A Yes.
10:30:16 20 Q On how many occasions?
21 A I'm not sure.
22 Q More than ten?
23 A Yes.
24 Q When was the last time you were deposed?
10:30:25 25 A I don't remember.
5
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10:30:26 1 Q Was it more than a year ago?
2 A No.
3 Q And what case was that taken in?
4 A I don't remember.
10:30:37 5 Q A deposition you gave within the last year
6 you don't remember what case it was in?
7 A That's correct.
8 Q Was it a case against one of the companies
9 that you are involved in or a case against you
10:30:46 10 personally?
11 A Well, I don't remember the deposition; so
12 that's why I don't remember what it was about.

13 Q Well, so that we are clear, the person
14 sitting to your left is taking down every word that
10:31:03 15 is being stated in this deposition today. As a
16 result of that, we have a few ground rules we have
17 to follow.
18 The first is that only one of us can speak
19 at a time. I request that you allow me to finish my
10:31:13 20 question before you respond, and I will allow you to
21 respond before I start my next question.
22 Do you understand that?
23 A Yes.
24 Q You have taken an oath to testify under
10:31:23 25 penalty of perjury. It is the same oath you would
6
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10:31:25 1 take if you were testifying in a court of -- of law;
2 therefore, although we are in this conference room,
3 I just want to make sure you understand you are
4 testifying under penalty of perjury.
10:31:36 5 Do you understand that?
6 A Yes.
7 Q Should you -- you will have an opportunity
8 to make any changes to the testimony that you are
9 giving today. The transcript, as I'm sure you are

10:31:48 10 aware, will be typed up and sent to you -- to your
11 counsel. You will then have an opportunity to make
12 any changes and sign it under penalty of perjury.
13 I need to caution you that, should you make
14 changes that are substantive in nature, I may be
10:32:00 15 entitled to redepose you to follow up on the changes
16 that you made as well as the fact that you made
17 substantive changes, and that may be the source of
18 comment of any lawyer at the time of trial.
19 Do you understand that?
10:32:15 20 A Yes.
21 Q As a result, I would request that you give
22 us your best testimony today.
23 Is there any reason that you cannot provide
24 your best testimony today?
10:32:23 25 A No.
7
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10:32:26 1 Q As I understand it, you are here as the
2 person most knowledgeable from Malibu Broadbeach on
3 six topics that were listed in a Deposition Notice;
4 is that accurate?
10:32:38 5 A Yes.
6 MS. COUSINEAU: Okay. I will mark as

7 Exhibit 39 a copy of the Deposition Notice.
8 THE REPORTER: I understand 40 is next.
9 MS. COUSINEAU: Is it?
10:32:53 10 THE REPORTER: That's what I was told.
11 MS. COUSINEAU: I have 1 through 38.
12 So we'll mark as Exhibit 40 the
13 Deposition Notice for today, served on October 6,
14 2004.
10:33:22 15 (Defendant's Exhibit 40 was marked for
16 identification by the Certified
17 Shorthand Reporter and is attached
18 hereto.)
10:33:22 20 Q And I ask you, please, Mr. Gaggero, have
21 you seen that before?
22 A Yes.
23 Q Now, as I understand from your counsel, you
24 have not brought you with any of the documents
10:33:54 25 requested in that Deposition Notice; correct?
8
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10:33:56 1 A I have not brought any documents with me,
2 no.
3 Q What kind of business organization is

4 Malibu Broadbeach?
10:34:31 5 A It's a limited partnership.
6 MR. BEZEK: Yeah. The question is vague
7 and ambiguous.
8 Go ahead.
9 BY MS. COUSINEAU:
10:34:37 10 Q Go ahead.
11 A It's a limited partnership.
12 Q How many partners are there?
13 A I'm not sure.
14 Q Who at Malibu Broadbeach would have that
10:34:47 15 information if not you, sir?
16 A I don't know.
17 MR. BEZEK: Calls for speculation.
19 Q Are you a partner in Malibu Broadbeach?
10:34:56 20 A No.
21 Q Can you name anybody that is a partner --
22 strike that.
23 Are there any partners in
10:35:13 25 MR. BEZEK: Beyond the scope of the PMK and
9
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10:35:17 1 calls for speculation and conjecture and lacks
2 foundation.
3 BY MS. COUSINEAU:
4 Q You can answer.
10:35:27 5 A I assume so.
6 Q Do you know?
7 MR. BEZEK: Just so we are clear -- I don't
8 have a problem with foundational questions, but it
9 looks to me like we are already outside the scope of
10:35:37 10 the PMK.
11 MS. COUSINEAU: You know, Malibu Broadbeach
12 is the insured and the plaintiff. I didn't expect
13 that the PMK would not be able to tell me who the
14 partners are. I didn't expect that I would have to
10:35:49 15 put as a specific line item the business
16 organization of Malibu Broadbeach; but I can
17 certainly do that and have Mr. Gaggero come back.
18 Not a problem.
19 MR. BEZEK: I mean, you can do whatever you
10:36:11 20 feel is appropriate to do.
21 My objection is it's beyond the scope of
22 the PMK. You have an answer to the last question.
23 Nobody has instructed him not to answer. So I just
24 want to be sure we stay within the confines of the
10:36:18 25 six itemized areas, save and except for foundational
10
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10:36:24 1 questions and background that genuinely and
2 legitimately would be asked.
3 MS. COUSINEAU: I assume that is a
4 foundational question. Since this witness says he
10:36:34 5 doesn't have that information, he probably wouldn't
6 be the witness that Malibu Broadbeach would provide
7 for that topic anyway. So I will simply provide
8 that as a separate depo notice in the future.
9 Q Have you ever been a partner, sir, of
10:36:52 10 Malibu Broadbeach Limited Partnership?
11 A No.
12 Q Who is Steven B. Gaggero?
13 A My father.
14 Q Where does he live?
10:37:00 15 A In San Diego County.
16 Q In what city?
17 A In Fallbrook.
18 Q Is Stephen B. Gaggero a partner in
19 Malibu Broadbeach currently?
10:37:14 20 A No.
21 Q What relationship does Stephen B. Gaggero
22 have to Malibu Broadbeach Limited Partnership?
23 A He's presently a -- well, no. I don't know
24 that he has any relationship with Malibu Broadbeach.

10:37:33 25 Q Why was he a plaintiff in the case with
11
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10:37:36 1 Malibu Broadbeach?
2 MR. BEZEK: Objection. Violates
3 attorney-client privilege. Calls for conjecture and
4 speculation and lacks foundation.
10:37:44 5 If you can answer the question without
6 violating attorney-client privilege, please do so.
7 THE WITNESS: I was going to say you would
8 have to really talk to the lawyers that drafted the
9 Complaint. I don't know.
10:37:54 10 BY MS. COUSINEAU:
11 Q Does Mr. -- does your father,
12 Stephen B. Gaggero, currently own any portion of the
13 property at 32628 Pacific Coast Highway?
14 A No.
10:38:05 15 MR. BEZEK: Calls for a legal conclusion as
16 phrased.
18 Q Does Stephen B. Gaggero own any -- have any
19 ownership interest whatsoever in
10:38:16 20 32628 Pacific Coast Highway presently?
21 MR. BEZEK: Same objection.

22 THE WITNESS: No.
24 Q Has Stephen B. Gaggero held any ownership
10:38:25 25 in 36268 Pacific Coast Highway in the past?
12
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10:38:29 1 A No.
2 Q What is his address in Fallbrook?
3 MR. BEZEK: I represent Stephen B. Gaggero.
4 If you need to reach him or if you want to serve him
10:38:44 5 with a subpoena, I'm authorized to accept service.
6 BY MS. COUSINEAU:
7 Q Who is Billie Sue Gaggero?
8 A My mother.
9 Q Where does she live?
10:39:02 10 A With my father.
11 Q In Fallbrook?
12 A Yes.
13 Q And is Billie Sue Gaggero presently a
14 partner in Malibu Broadbeach, L.P.?
10:39:17 15 A No.
16 Q What, if any, relationship does
17 Billie Sue Gaggero have to Malibu Broadbeach, L.P.?
18 MR. BEZEK: Overly broad. Vague and

19 ambiguous. And, by the way, we lodged the same
10:39:29 20 objection to the PMK notice, Items 4 and 5.
21 MS. COUSINEAU: Well, since no objections
22 were received in response to the depo notice sent on
23 October 6 and I have no recollection of receiving
24 this one two months earlier, I will note it for the
10:39:48 25 record; but I do not believe it was preserved.
13
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10:39:51 1 Q Nonetheless, can you answer the question,
2 please.
3 A I don't know that she has a relationship
4 with MDLP. And I'm abbreviating MBLP for
10:40:04 5 Malibu Broadbeach, L.P.
6 BY MS. COUSINEAU:
7 Q Does Billie Sue Gaggero presently have an
8 ownership interest in 32628 Pacific Coast Highway?
9 A No.
10:40:16 10 Q Has Billie Sue Gaggero ever held an
11 ownership interest in 32628 Pacific Coast Highway?
12 A No.
13 Q Does Malibu Broadbeach still own the
14 property 32628 Pacific Coast Highway?
10:40:33 15 A Yes.

16 Q It is for sale; correct?
17 A For sale or lease.
18 Q Does Malibu Broadbeach have any employees?
19 A No.
10:41:06 20 Q Does Malibu Broadbeach employ a person or
21 entity to manage its properties?
22 A Yes.
23 Q Who or what does it employ?
24 A Pacific Coast Management.
10:41:24 25 Q What is Pacific Coast Management?
14
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10:41:27 1 A Management company.
2 Q To your knowledge, is Pacific Coast
3 Management a corporation?
4 A I think it is.
10:41:50 5 Q What affiliation do you, Mr. Gaggero, have
6 with Pacific Coast Management?
7 A I'm a consultant.
8 Q Are you an officer or director of that
9 company?
10:42:03 10 A No. I may be a director. I'm not sure
11 actually. I'm not a hundred percent sure if I'm a
12 director or not. I thought I was the managing

13 director, and I was told there was no such thing as
14 a managing director in the corporation. So I don't
10:42:20 15 say that any longer; but -- so I may be a director.
16 I don't know.
17 Q Are you the shareholder that -- the sole
18 shareholder of Pacific Coast Management?
19 A No.
10:42:31 20 Q Are there others?
21 MR. BEZEK: Calls for speculation. Lacks
22 foundation.
23 THE WITNESS: Makes an implication I am a
24 shareholder.
25 ///
15
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2 Q Are you a shareholder in Pacific Coast
3 Management?
4 A No.
10:42:51 5 Q You, though, Mr. Gaggero, manage the
6 operations of Pacific Coast Management; correct?
7 A Yes.
8 Q And as I understand it from the testimony
9 of others in this case already, Pacific Coast

10:43:12 10 Management then has numerous independent contractors
11 that does work for it; is that correct?
12 MR. BEZEK: Wait a minute. I'm going to
13 object to the question as vague and ambiguous as to
14 what counsel's understanding might be. I don't know
10:43:26 15 how you could speculate as to what her understanding
16 might be.
18 Q Well, is that correct? Does Pacific Coast
19 Management have numerous independent contractors
10:43:38 20 that work for it?
21 MR. BEZEK: It's vague and ambiguous.
22 THE WITNESS: It's a property management
23 company; and so we hire people to do work on various
24 properties. People and, I should say, entities.
25 ///
16
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2 Q How were you first -- strike that.
3 How did you become aware of the car
4 accident which occurred at the property at
10:44:13 5 32628 PCH?
6 MR. BEZEK: The one on 9/8/02?

7 MS. COUSINEAU: Yes.
8 THE WITNESS: Well, I don't remember the
9 date exactly. But you mean the car that drove
10:44:24 10 through the garage?
12 Q Correct.
13 A I got a phone call -- actually, on my cell
14 phone -- from somebody that drove by and said that
10:44:32 15 it was -- that there had been a car accident. I
16 don't remember if fire trucks and things were there
17 then or when they drove by or they just saw the
18 whole -- but I got a phone call on my cell phone,
19 anyway.
10:44:49 20 Q From whom did you get the call?
21 A I don't remember. Somebody called me and
22 said that the -- there had been a car there driven
23 through the property.
24 Q How long after the car accident was it
10:44:59 25 before you saw the site?
17
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10:45:03 1 A Several days. I don't remember how many
2 days.
3 Q What, if anything, did you do upon learning

4 of the car accident there?
10:45:17 5 A I asked -- I forget -- I asked somebody to
6 get it boarded up right away, to get the holes
7 boarded up and to make sure -- if it was a dangerous
8 situation, to shore it up and take care of any
9 electrical or plumbing problems and to board up the
10:45:40 10 fence because it was my understanding it went
11 through both fences on either side of the property.
12 Q Was that Dan Armstrong you asked to do
13 that?
14 A I don't know if I spoke to Dan directly or
10:45:56 15 if I spoke to somebody else in the office to have it
16 done. I just don't remember.
17 Q Was it your understanding that
18 Dan Armstrong was going to be the person that did
19 the boarding up?
10:46:07 20 A I don't remember who I spoke to; so it's
21 possible I spoke to somebody else and said, "Whoever
22 we can get to board it up, do it."
23 For example, if Dan wasn't available, we
24 would have had to shore it up and board it up, and
10:46:19 25 they would have presumably gotten somebody else to
18
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10:46:21 1 do it; but since I don't remember if I spoke to Dan
2 directly or if I spoke to somebody else, I can't be
3 certain about that.
4 Q Is Dan Armstrong an individual that does
10:46:31 5 work for Pacific Coast Management?
6 A Yes.
7 Q Is he on a salary with Pacific Coast
8 Management?
9 A His financial relationship with
10:46:41 10 Pacific Coast Management is confidential, in my
11 opinion.
12 Q Confidential to whom?
13 A Confidential to Pacific Coast Management
14 and confidential to Dan Armstrong.
10:46:52 15 MR. BEZEK: We would object on the grounds
16 of confidentiality.
17 MS. COUSINEAU: Are you instructing him not
18 to answer?
19 MR. BEZEK: No. I didn't instruct him. I
10:47:02 20 just objected. If I instruct him not to answer, I
21 will say, "You are instructed not to answer."
23 Q Is Mr. Armstrong on salary with
24 Pacific Coast Management?
10:47:10 25 MR. BEZEK: Same objections. It's a --
19
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10:47:12 1 MS. COUSINEAU: It's noted.
2 MR. BEZEK: Maria, please don't -- I'm
3 not -- I don't want to get into a tussle here. I'm
4 just making my record, and when do I that, it's
10:47:24 5 helpful if you just simply allow me to do it. We
6 don't need to argue about it now. We can argue
7 about it later.
8 So go ahead. You have now asked the
9 question. I've lodged an objection.
10:47:36 10 THE WITNESS: Unless the attorneys for
11 Pacific Coast Management and for Dan Armstrong are
12 present, I don't feel I have the right to disclose
13 their financial arrangements.
10:47:45 15 Q Who are the attorneys for Pacific Coast
16 Management?
17 A I don't know specifically. It would depend
18 on what the issue at hand was.
19 MR. BEZEK: We would also object on the
10:47:57 20 grounds it's not likely to lead to the discovery of
21 admissible evidence.
22 MS. COUSINEAU: Well, in light of the fact
23 that Mr. Armstrong's invoices for a certain dollar
24 amount were submitted as part of this claim, I

10:48:10 25 believe it is directly relevant to this case.
20
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10:48:13 1 MR. BEZEK: No. I would disagree. If you
2 want to talk about it, I can explain to you why I
3 disagree. But you tell me when and if you want to
4 talk about it, and I'm happy to do it.
10:48:21 5 MS. COUSINEAU: Very well.
6 Q So are you refusing to tell me whether
7 Mr. Armstrong is on salary with PCM?
8 A Yes.
9 Q Who if -- to your knowledge, who submitted
10:48:44 10 a claim to State Farm for the loss which occurred on
11 June 8th, 2002?
12 MR. BEZEK: The question is vague.
13 THE WITNESS: I don't remember.
10:48:53 15 Q Was it you?
17 Q Did you have -- during the course of the
18 claim with State Farm, did you personally have any
19 discussions with anyone from State Farm?
10:49:07 20 A I met an adjuster out there at some point.
21 Q And did you speak to this -- that adjuster

22 when you met him?
23 A I think so.
24 Q How many times did you meet him?
10:49:17 25 A I don't remember. I think once. But I'm
21
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10:49:23 1 not sure.
2 Q Did you speak to anybody on the phone that
3 you understood to be from State Farm during the
4 course of this claim?
10:49:31 5 A Not that I recall.
6 Q Did you ask somebody to act on
7 Malibu Broadbeach's behalf in submitting the claim
8 to State Farm?
10:49:47 10 Q To your knowledge, was somebody authorized
11 to act on behalf of Malibu Broadbeach for purposes
12 of the claim?
13 MR. BEZEK: Calls for speculation and lacks
14 foundation.
10:49:57 15 THE WITNESS: I don't remember.
17 Q Who is Robert Haber?
18 A What do you know about -- what did you mean

19 by who he is. He's a man. He's --
10:50:18 20 Q What is Mr. Haber's affiliation with
22 A I don't really know how to answer that.
23 Q Does Mr. Haber have a relationship with
10:50:31 25 MR. BEZEK: The question is overly broad.
22
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10:50:33 1 Vague and ambiguous.
2 THE WITNESS: I don't really understand
3 what you mean by "relationship."
4 BY MS. COUSINEAU:
10:50:38 5 Q Well, let me ask you this.
6 Is Mr. Haber a partner of Malibu Broadbeach
7 Limited Partnership?
8 A No.
9 Q Is he employed by Malibu Broadbeach?
10:50:47 10 A No. Well, I don't know. I don't think so,
11 but I'm not sure.
12 Q Is Mr. Haber employed by Pacific Coast
13 Management?
14 A He does work for Pacific Coast Management.
10:51:02 15 I wouldn't say that he's an employee of but he does

16 work for Pacific Coast Management.
17 Q Did -- to your knowledge, was Mr. Haber
18 asked to represent Malibu Broadbeach in the
19 presentation of the claim to State Farm?
10:51:44 20 MR. BEZEK: The question is vague and
21 ambiguous.
22 THE WITNESS: I don't remember or know.
24 Q To your knowledge, who would be the person
10:52:04 25 that has the most knowledge of the presentation of
23
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10:52:08 1 Malibu Broadbeach's claim to State Farm?
2 MR. BEZEK: The question is vague and
3 ambiguous on "presentation."
4 THE WITNESS: I would say David Chatfield.
6 Q Who is Mr. Chatfield?
7 A An attorney.
8 Q Why you would say that he had the most
9 knowledge -- are you saying he would have the most
10:52:25 10 knowledge of the presentation of the claim or he
11 would know who would?
12 A No. I answered your question.

13 You said, to my knowledge, who would have
14 the most knowledge about the presentation of the
10:52:33 15 claim? And, to my knowledge, it would be
16 David Chatfield.
17 Q Okay. Why do you say Mr. Chatfield would
18 have the most knowledge?
19 MR. BEZEK: Objection. Attorney-client
10:52:43 20 privilege. Also work product privilege.
21 If you can answer the question without
22 revealing what Mr. Chatfield told you, please do so.
23 THE WITNESS: I don't understand the
24 parameters specific to attorney-client privilege; so
10:53:01 25 I'll respectfully not answer any further in that
24
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10:53:05 1 regard.
2 BY MS. COUSINEAU:
3 Q Did Malibu Broadbeach ask Mr. Chatfield to
4 present Malibu's claim to State Farm?
10:53:12 5 A I don't know.
7 privilege.
8 Your answer is in. That's okay.
9 THE WITNESS: Sorry.

11 Q Do you know whether Mr. Chatfield was, in
12 fact, the person who communicated with State Farm
13 about the claim?
14 A I don't know.
10:53:34 15 Q During the course of the claim with
16 State Farm, were you provided by anyone copies of
17 any communications back and forth between Malibu and
18 State Farm?
19 MR. BEZEK: Can you read that question back
10:53:53 20 for me, please. I think the question was was he
21 provided copies of communications?
22 MS. COUSINEAU: Correct.
23 MR. BEZEK: If that is the question -- the
24 question, I object on the grounds of vague and
10:54:05 25 ambiguous. I don't know what you mean by a
25
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10:54:06 1 "communication."
2 BY MS. COUSINEAU:
3 Q Do you understand the question?
4 A Not specifically because -- not only
10:54:14 5 Mr. Bezek's objection, but you're making an
6 assumption that there was a communication between

7 Malibu Broadbeach and State Farm and there is a
8 specific person you are talking about or just the
9 entity. I don't quite understand.
10:54:30 10 Q Well, is it correct that Mr. Chatfield was
11 the person that Malibu Broadbeach designated to
12 communicate with State Farm?
14 privilege.
10:54:43 15 MS. COUSINEAU: Well, you know what? If
16 they authorize a lawyer to do so, I think they
17 waived the -- the privilege as it relates to the
18 presentation of the claim. But your objection is
19 noted; and if you are instructing him not to answer,
10:54:58 20 we'll deal with it at a later time.
21 Are you instructing him not to answer the
22 question?
23 MR. BEZEK: Let me -- I can repeat what I
24 said earlier.
10:55:08 25 When I instruct him not to answer, I will
26
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10:55:17 1 say, "You are instructed not to answer."
2 MS. COUSINEAU: Okay.
3 MR. BEZEK: I've lodged an attorney-client

4 privilege objection here. I disagree with what you
10:55:18 5 have just said about the attorney-client privilege,
6 and unless and until it becomes a real issue, there
7 is nothing to really argue about it, and I don't
8 want to argue. I just want to lodge my objections
9 and allow you to proceed with your deposition.
11 Q Okay. Isn't it true, Mr. Gaggero, that
12 Malibu Broadbeach authorized David Chatfield to
13 communicate with State Farm about the loss at the
14 PCH property?
10:55:48 15 MR. BEZEK: I'm going to object to the
16 question on the grounds of attorney-client
17 privilege. If the only basis for your knowledge --
18 let me rephrase that.
19 If you have an answer to that question and
10:55:57 20 that answer can only come from and does come from --
21 exclusively from conversations you had with your
22 lawyers, then it's an attorney-client communication.
23 If you know the answer to that outside of
24 communications you had with your lawyer, then please
10:56:11 25 answer the question.
27
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10:56:12 1 THE WITNESS: I don't have a good enough
2 recollection to answer that question, and I'm
3 afraid, if I speculate or answer with some vague
4 recollection, I may violate attorney-client
10:56:26 5 privilege. And so I -- I just can't answer it.
6 BY MS. COUSINEAU:
7 Q Have you ever seen the authorization that
8 was sent to State Farm authorizing Mr. Chatfield to
9 speak on behalf of Malibu Broadbeach?
10:56:38 10 A The way the question is presented to me,
11 you're -- you're stating there is such an
12 authorization; so if you have it, I'm happy to look
13 at it. Maybe that will refresh my recollect.
14 MS. COUSINEAU: Let's take a break for a
10:56:51 15 moment. I'll go get it.
16 (Off the record.)
17 MS. COUSINEAU: Back on the record.
18 Marked as Exhibit 41 designee authorization
19 dated 8/5/02.
23 hereto.)
11:01:21 25 Q Have you ever seen that before,
28
956-6405 ~ (800) 48-SMART

11:01:22 1 Mr. Gaggero?
2 A I don't think so.
3 Q Who is Stephen -- Joseph Praske?
4 A He's a lawyer.
11:01:29 5 Q Is he a partner within the
6 Malibu Broadbeach Limited Partnership?
7 A No.
8 Q Do you know why Mr. Praske designated
9 David Chatfield to address the claim with
11:01:53 10 State Farm?
11 MR. BEZEK: You can answer that yes or no
12 before we determine whether or not there is an
13 attorney-client privilege issue here.
14 THE WITNESS: No.
11:02:11 15 MR. BEZEK: Okay.
17 Q Do you know who authorized Mr. Praske to
18 authorize Mr. Chatfield to negotiate the claim on
19 behalf of Malibu Broadbeach?
11:02:24 20 MR. BEZEK: Assume facts not in evidence.
21 Lacks foundation. It's argumentative as phrased.
22 And again that's a yes or no until we determine
23 whether there is an attorney-client privilege here.
24 THE WITNESS: No.

25 ///
29
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2 Q Did you do so?
3 A No.
4 Q You told me earlier you didn't know who the
11:02:43 5 partners were in Malibu Broadbeach Limited
6 Partnership, but then you later said that neither
7 Billie Sue Gaggero nor Stephen B. Gaggero were
8 partners; correct?
9 A That's correct.
11:02:57 10 Q How do you know that they are not?
11 A Well, that's partially correct because I am
12 not sure who the partners are, and I know my parents
13 are not partners in that limited partnership. They
14 are my parents.
11:03:10 15 Q You said you are not sure who the partners
16 are. Do you have some understanding of who they
17 might be?
18 A I just don't remember specifically. I
19 think I knew at one time, and I have just forgotten
11:03:24 20 actually.
21 Q Might you be a partner in

23 A I think you already asked me that question,
24 and I told you I'm not.
11:03:32 25 Q Is Mr. Praske a -- an attorney on behalf of
30
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11:03:37 1 Malibu Broadbeach?
2 A Yes.
3 Q And where are Mr. Praske's offices?
4 A In Santa Monica and in La Canada.
11:04:04 5 Q The P.O. box -- do you recognize that
6 P.O. box address that is on this designee
7 authorization?
8 A Yes.
9 Q What do you recognize it as?
11:04:14 10 A That's the P.O. box for Pacific Coast
11 Management.
12 Q Is -- was Mr. Praske also a lawyer for
13 Pacific Coast Management in August of 2002?
14 A I don't know if he was a lawyer for
11:04:41 15 Pacific Coast Management, frankly.
16 Q Did Malibu Broadbeach share that P.O. box
17 address with Pacific Coast Management in August,
18 '02?

19 A I don't know what you mean by "share."
11:05:00 20 Q Did Malibu Broadbeach also use that same
21 P.O. box number as its address in August of 2002?
22 A Probably. Probably.
23 Q You keep those.
24 A You want these?
11:05:29 25 Q That's fine.
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11:05:33 1 When did Malibu Broadbeach first purchase
2 the property at 32628 Pacific Coast Highway?
3 A I don't remember the date.
4 Q Can you estimate it for me.
11:05:44 5 A No.
6 MR. BEZEK: I'm going to object to the bulk
7 of this line of questioning. It's outside the scope
8 of the PMK. So whatever importance it may have to
9 us down the road, I want the record clear that I am
11:05:58 10 objecting to this process.
11 MS. COUSINEAU: I think it's foundation to
12 Question No. 2, which asks for construction activity
13 since it became an owner.
14 MR. BEZEK: I understand your point.

16 Q Can you tell me the year that
17 Malibu Broadbeach became the owner of 32628?
18 A No. I don't remember.
19 Q Focusing on Category No. 6 for a moment,
11:06:39 20 can you tell me every person, whether an employee or
21 agent of Malibu Broadbeach, who has any --
22 A Go ahead. Your question.
23 Q -- who has any knowledge or involvement
24 with that property?
11:06:53 25 MR. BEZEK: The question calls for
32
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11:06:55 1 conjecture and speculation as phrased. Lacks
2 foundation. Also calls for a legal conclusion from
3 the internal content of the question.
4 BY MS. COUSINEAU:
11:07:06 5 Q Go ahead.
6 A Would you tell me the last part of that
7 question again, please.
8 Q Certainly.
9 Can you identify any employees or agents of
11:07:16 10 Malibu Broadbeach that have any information or
11 knowledge of the property on Pacific Coast Highway?
12 MR. BEZEK: Same objections.

13 THE WITNESS: I -- that's such a broad
14 question. Could you narrow that down for me.
16 Q I'm not sure how to do so, sir.
17 Can you identify -- other than
18 Pacific Coast Management -- that is an example,
19 perhaps, of an agent of Malibu Broadbeach with
11:07:38 20 knowledge of the property.
21 Can you identify any other agents or
22 employees of Malibu Broadbeach that have knowledge
23 of that property?
11:07:46 25 THE WITNESS: What do you mean by
33
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11:07:47 1 "knowledge of the property"?
2 BY MS. COUSINEAU:
3 Q That -- let's start with "involvement in
4 the property." Let's say the involvement in the
11:07:59 5 construction of the property, reconstruction of the
6 property.
8 If I didn't add "overly broad," then I'm
9 adding "overly broad" now.

11:08:10 10 THE WITNESS: And I don't understand what
11 would constitute an "agent" of Malibu Broadbeach.
12 Malibu Broadbeach doesn't have any employees, first
13 of all; so we can say that.
14 And what do you mean by an "agent of
11:08:31 15 Malibu Broadbeach that would have knowledge of the
16 construction"? I just can't -- there is probably --
18 Q Well, would you consider Colleen O'Brien an
19 agent of Malibu Broadbeach that has knowledge of the
11:08:41 20 construction?
21 MR. BEZEK: Calls for a legal conclusion as
22 phrased.
23 THE WITNESS: I don't know if she's an
24 agent of Malibu Broadbeach or an agent of
11:08:49 25 Pacific Coast Management. I'm not sure.
34
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2 Q Well, did Colleen O'Brien obtain building
3 permits on behalf of Malibu Broadbeach to do
4 reconstruction at the property?
11:09:00 5 A I don't know if it was on behalf of the
6 Malibu Broadbeach or if it was on behalf of

7 Pacific Coast Management. I'm not sure whether the
8 Pacific Coast Management retained her to get the
9 permits. But I don't know if -- if that makes her
11:09:17 10 an agent of Malibu Broadbeach or not. That is a
11 legal issue that I'm just not capable of answering
12 Q Can you identify any other persons that
13 either are agents of Malibu Broadbeach or agents of
14 its agent Pacific Coast Management that are involved
11:09:34 15 in the reconstruction process other than
16 Colleen O'Brien?
18 THE WITNESS: It's my understanding we sent
19 quite a few invoices that identify all those
11:09:48 20 entities and individuals.
22 Q Okay. I'm here to get your knowledge, sir,
23 of, not your attorney's knowledge, invoices that
24 were sent.
11:09:58 25 Who do you know was an agent of
35
956-6405 ~ (800) 48-SMART
11:10:03 1 Malibu Broadbeach either directly or through
2 Pacific Coast Management that was involved in the
3 reconstruction of the property on

4 Pacific Coast Highway?
11:10:13 5 MR. BEZEK: Same objections.
6 Do you mind, Maria, if I use the shorthand
7 of "Same objections" to save time?
8 MS. COUSINEAU: Not a bit.
9 MR. BEZEK: Okay.
11:10:21 10 THE WITNESS: If you want to give me the
11 stack of invoices that were sent to you -- I guess
12 several different times they were sent to you -- if
13 you want to give them all to me, I'll read the names
14 off the top for you, if that would make you happy,
11:10:35 15 in this -- this deposition.
17 Q Well, I just want to get your recollection
18 first.
19 A I don't -- I don't have anybody on the top
11:10:44 20 of my mind; so if you -- like I said, if you want me
21 to read them off to you, I will be happy to.
22 Q You didn't bring those documents -- the
23 original of those documents today as requested in
24 the depo notice; is that correct?
11:10:56 25 A We've already discussed this, haven't we?
36
956-6405 ~ (800) 48-SMART

11:10:59 1 Q Just making sure.
2 MR. BEZEK: We have not produced any
3 additional documents here today.
4 BY MS. COUSINEAU:
11:11:05 5 Q Is Colleen O'Brien a partner in
6 Malibu Broadbeach Limited Partnership?
7 A No.
8 Q To your knowledge, has she ever been?
9 A I'm not sure.
11:11:45 10 Q Does Malibu Broadbeach own any other
11 properties besides 32628 Pacific Coast Highway?
12 MR. BEZEK: I'm going to object on the
13 grounds of financial privilege. Confidential. I
14 don't know how that would tend to lead to the
11:11:58 15 discovery of admissible evidence related to this
16 incident and the coverage issues and the cost of
17 construction.
19 Q Go ahead.
11:12:09 20 A I'm afraid I'm not going to be able to
21 answer that question for you.
22 Q Why not?
23 A Because I really don't think it's relevant
24 to this insurance claim, and I think that I have to
11:12:19 25 protect our clients' privacy rights.
37
956-6405 ~ (800) 48-SMART

11:12:21 1 Q And which clients are you referring to?
2 A Malibu Broadbeach, any clients that we
3 represent. It's, like, any clients you would
4 represent. I think they are entitled to privacy.
11:12:36 5 Q Okay. I'm confused here.
6 Are you saying Malibu Broadbeach is your
7 client?
8 A It's a client of Pacific Coast Management.
9 Q So are you here as a representative of
11:12:44 10 Malibu Broadbeach or of Pacific Coast Management?
11 A I'm here under the subpoena.
12 Q Correct. As a representative of
13 Malibu Broadbeach; correct?
14 A I'm here as a person most knowledgeable
11:12:55 15 about Malibu Broadbeach.
16 Q And so I will restate my question.
17 What other properties does
18 Malibu Broadbeach own currently?
19 MR. BEZEK: Same objections. And I don't
11:13:13 20 know if his answer is going to be any different.
21 You want to incorporate your answer?
22 THE WITNESS: Yeah. Please.
24 Q I don't think that's an appropriate answer.

11:13:21 25 If you can answer the question, please, or refuse to
38
956-6405 ~ (800) 48-SMART
11:13:23 1 answer it; but you don't just incorporate something.
2 That makes for a very unclear record, especially
3 when I seek to compel a response.
4 MR. BEZEK: Maria, you have a very clear
11:13:33 5 record as of right now. He has told you he feels he
6 cannot reveal information about other properties. I
7 have given you my objection. I'm either right or
8 I'm wrong.
9 I haven't heard from you as to how
11:13:45 10 ownership of other properties would tend to lead to
11 the discovery of admissible evidence.
12 And the issues that are before the court in
13 this case, as I understand them to be, which are is
14 there coverage and what was the cost to repair?
11:14:00 15 So ownership of other properties, it would
16 seem to me, is wholly irrelevant even under the
17 broader standard of discovery and juxtapose that
18 against financial privacy.
19 And I think we have an issue; but I'm happy
11:14:15 20 to hear what -- either off the record or on the
21 record or at some future date, what you think the

22 peg of relevancy is here.
23 MS. COUSINEAU: Well, in light of the
24 allegations in the Complaint, that especially the
11:14:30 25 failure to communicate coverages, whether
39
956-6405 ~ (800) 48-SMART
11:14:35 1 Malibu Broadbeach owns other products and their
2 insurance is directly relevant to this case, and
3 that's a foundational question to that.
4 MR. BEZEK: Hold on just one second.
11:14:48 5 (Whereupon, the witness and his attorney
6 confer out of the hearing of the
7 reporter.)
8 MR. BEZEK: Okay. We understand your
9 position, and if you feel compelled to -- that basis
11:15:19 10 that you have just explained, if you feel that you
11 have a basis to compel, I'm happy to talk to you
12 further.
13 But as of right now, the witness is still
14 concerned about financial privacy. And I frankly
11:15:31 15 don't see yet the relevancy peg even under the
16 broader discovery standard and it's -- it would
17 strike me -- I'm certainly not accusing anybody of
18 this, but it would strike me that we are a bit off

19 the reservation -- I shouldn't say "a bit" -- we are
11:15:49 20 off the reservation by a lot, and it would appear to
21 me it's also outside the scope of the PMK.
22 So, in any case, I think we both know our
23 respective positions.
24 Do you have another question?
11:16:00 25 MS. COUSINEAU: No. I just need a
40
956-6405 ~ (800) 48-SMART
11:16:02 1 clarification.
2 Q Just so I'm clear, Mr. Gaggero, it is the
3 privacy right of Malibu Broadbeach you are
4 asserting?
11:16:20 5 A I don't even know from a legal standpoint
6 whether it's limited to the privacy right; but as I
7 have indicated, I just don't know what
8 Malibu Broadbeach's other interests, if any, have to
9 do with this insurance claim.
11:16:40 10 And -- and I think that there needs to be a
11 ruling by the court in this regard.
12 Q Okay. But just so I'm clear -- it's
13 Malibu Broadbeach's financial interest or financial
14 interests that you are seeking to protect at this
11:16:54 15 point and refusing to explain; correct?

16 MR. BEZEK: Well, first of all, that is a
17 legal objection that has been made, and I have made
18 the legal objection. He has told you what his
19 practical concerns are, and that is in the record;
11:17:05 20 so you are asking him for a legal conclusion.
21 MS. COUSINEAU: I'm not intending to. I'm
22 just trying to clarify because there was some
23 confusion in my mind on whether or not he was
24 asserting these rights not as a lawyer but asserting
11:17:20 25 these rights on behalf of Malibu Broadbeach or
41
956-6405 ~ (800) 48-SMART
11:17:23 1 Pacific Coast Management.
2 And I'm just clarifying that it is
3 Malibu Broadbeach's financial interest that you are
4 asserting and you don't intend to respond to
11:17:32 5 questions about.
6 MR. BEZEK: Well, again, you are asking him
7 for a legal conclusion; and I will tell you, from my
8 perspective as the lawyer, that he is not waiving
9 any claims -- either PCM's claims or
11:17:44 10 Malibu Broadbeach's claims -- PCM -- or any other
11 entity that is involved here.
12 What he has said to you is he is concerned

13 about revealing information he believes to be
14 confidential. He's either right or he's wrong. We
11:17:57 15 are concerned about revealing that confidential
16 information without permission from those entities
17 that would have a right to allow that information to
18 be revealed.
19 He has a duty to protect that interest in
11:18:08 20 and above that or in addition to this -- that there
21 is the whole question of discovery relevancy. And I
22 have asked for a peg of relevancy.
23 You have given me your statement. I
24 disagree with your comment; but you made your
11:18:28 25 statement, and I understand it. I'm happy to talk
42
956-6405 ~ (800) 48-SMART
11:18:28 1 to you a bit further at any time you want, either on
2 the record, off the record, today, tomorrow, on the
3 phone -- it makes no difference. But at this point,
4 I think, in order to preserve the concerns of the
11:18:35 5 witness, you and I are going to have to have further
6 discussion, and hopefully one can convince the
7 other, and I'm happy to do that.
9 Q Just so I'm clear --

11:18:47 10 And please just allow the witness to
11 respond without anything further. I understand your
12 legal objection, but you did not instruct him not to
13 answer.
14 And I am just trying to understand,
11:18:59 15 Mr. Gaggero, why it is you are refusing to answer
16 the question about Malibu Broadbeach's other
17 properties?
18 MR. BEZEK: Asked and answered.
19 THE WITNESS: Maybe you could help me a
11:19:10 20 little bit by showing me in your Item 1 through 6 in
21 the subpoena for the person most knowledgeable which
22 of those six categories does this question fall
23 under because I'm just not prepared to talk about
24 Malibu Broadbeach's financial position here today.
11:19:27 25 Could you show me which of the six it falls
43
956-6405 ~ (800) 48-SMART
11:19:30 1 under?
2 BY MS. COUSINEAU:
3 Q I am considering it to be a foundational
4 question. And if you, Mr. Gaggero, do not believe
11:19:35 5 it falls within one of these categories, I am happy
6 to redo -- do a new depo notice to Malibu Broadbeach

7 for that particular category.
8 MR. BEZEK: And maybe as part of that --
9 MS. COUSINEAU: Let's not mess up the
11:19:50 10 record. That's enough. If you want to add
11 something to me later, please let's just proceed
12 with this deposition.
13 MR. BEZEK: Let's make sure the record is
14 clear here. I've objected -- one of the bases for
11:20:00 15 the objection was "outside the scope." I'm going to
16 suggest that, as part of our discussions before yet
17 another deposition is scheduled, that we talk by
18 phone to narrow so that you get what you are
19 legitimately entitled to get but we don't get off
11:20:16 20 the reservation either; so I would invite that call,
21 and we can talk about it after we are off the record
22 today.
23 So when you are ready to do that, let me
24 know, and we can rearrange another PMK if it's
11:20:28 25 appropriate.
44
956-6405 ~ (800) 48-SMART
2 Q At the time of the accident on June 8th,
3 2002, were there any tenants living in the garage

4 apartment units?
11:20:41 5 A No.
6 Q When had those units been vacated?
7 MR. BEZEK: Overly broad. Vague and
8 ambiguous.
9 THE WITNESS: I don't remember specifically
11:20:51 10 but just a few days before, I think.
12 Q And --
13 A Well, I think one was a few days and one
14 may have been a few weeks, but I don't remember
11:21:06 15 specifically. It's my best recollection.
16 Q And is it true that those units were
17 vacated because of the intended remodeling of that
18 structure?
19 MR. BEZEK: Calls for speculation.
11:21:23 20 Conjecture.
21 THE WITNESS: How do you define "remodel"?
23 Q Do you not understand the word "remodel"?
24 A That's a broad word and --
11:21:40 25 Q Isn't it true, Mr. Gaggero, that the
45
956-6405 ~ (800) 48-SMART

11:21:42 1 tenants vacated that property because there was
2 going to be reconstruction of that garage unit?
3 MR. BEZEK: Call for conjecture and
4 speculation as phrased.
11:21:51 5 THE WITNESS: I -- I -- you are going to
6 have to -- let me tell you why I'm a little
7 concerned about the way you are asking the question.
8 First of all, you said that "garage unit,"
9 and there are two units.
11:22:05 10 Second of all, you said "remodel" and
11 "reconstruction" combined with the position that
12 State Farm has been taking, on denying that claim,
13 gives me concern about answering this question in a
14 manner that would be prejudicial to
11:22:18 15 Malibu Broadbeach L.P.
16 So I would like you to define with specific
17 particularity the -- the meaning of the word
18 "remodel" as you are asking it and meaning of
19 "reconstruction" as you are asking it, if you would,
11:22:33 20 please.
22 Q Sir, isn't it true that long -- that prior
23 to the June 8th accident, it was the intention of
24 Malibu Broadbeach to do some remodeling of the
11:22:47 25 guesthouse -- guest units?
46
956-6405 ~ (800) 48-SMART

11:22:56 1 A Again, I will ask you to be specific with
2 the word "remodeling."
3 Q You know, I'm sorry. I'm going to just
4 suspend this deposition and ask for somebody to be
11:23:08 5 here because, if this person -- please don't leave
6 yet --
7 MR. BEZEK: You --
8 THE WITNESS: You said "remodeled."
9 MS. COUSINEAU: If you cannot understand
11:23:13 10 the word "remodel" when you are in the construction
11 business, I think it's ridiculous.
12 MR. BEZEK: She's terminated. All right.
13 Just let us know when you want to talk
14 about it.
11:23:24 15 MS. COUSINEAU: I'm giving you notice now
16 for an ex parte on Friday for someone to attend this
17 deposition.
18 MR. BEZEK: You mean you want a referee?
11:23:34 20 MR. BEZEK: Okay. I'll talk with my
21 client. We may very well be willing to have a
22 referee here.
23 MS. COUSINEAU: That last statement he made
24 is just telling of this whole lawsuit.

11:23:43 25 MR. BEZEK: Well, Maria, actually I think
47
956-6405 ~ (800) 48-SMART
11:23:46 1 his point is exceptionally well taken; and when the
2 emotion leaves your -- your logic, you can talk
3 about it, and I will be happy to explain to you why
4 his concern is valid.
11:24:03 5 MS. COUSINEAU: Let's go off the record
6 right now, and you can tell me why his concern is
7 valid that he might -- by testifying to the truth,
8 might affect his case.
9 MR. BEZEK: Well, now, when you put it in a
11:24:10 10 pejorative way and argumentative way, it makes it
11 difficult for me to have an open-ended logical
12 conversation --
13 MS. COUSINEAU: I'm all ears.
14 MR. BEZEK: -- discussing it with you. If
11:24:18 15 you are prepared to discuss this --
16 MS. COUSINEAU: Let's go off the record.
17 Then I'm all ears.
18 MR. BEZEK: We haven't gone off the record
19 yet. I'm fine to do that.
11:24:26 20 Let's discuss two things when we go off the
21 record. Let's get a referee because I think this is

22 the first time that an issue is going to come up,
23 and it's been entirely possible that there will be
24 more. And I want you to get what you are entitled
11:24:38 25 to get at the time you ask your question.
48
956-6405 ~ (800) 48-SMART
11:24:42 1 I don't want my client, however, to be
2 prejudiced in the process; so I think we agree to
3 get a referee. Let's go do that.
4 Two --
7 reporter.)
8 MR. BEZEK: We haven't talked about that
9 yet.
11:24:56 10 Two, let's talk about this issue of your
11 concern about or your use of terminologies. I think
12 terminologies is going to be important. So can we
13 talk about both those things off the record. Now we
14 can --
11:25:14 15 MS. COUSINEAU: Absolutely.
16 THE REPORTER: Okay? Off the record?
18 MR. BEZEK: Yes.

19 (Off the record.)
11:32:44 20 MR. BEZEK: Back on the record.
21 We have talked off the record, and I think
22 Maria has decided she does want to proceed with the
23 deposition today. We are certainly willing to do
24 that. We did discuss off the record our varying
11:32:56 25 points of view on definitions and that type of
49
956-6405 ~ (800) 48-SMART
11:32:59 1 thing.
2 So if you want to put on the record what we
3 talked about Maria, I'm happy to do it, or we can go
4 right back to questioning. My client is willing to
11:33:09 5 continue on today. So you tell me what you would
6 rather do.
7 MS. COUSINEAU: I'm just going to proceed
8 with the deposition.
9 MR. BEZEK: All right.
11 Q Mr. Gaggero, what were Malibu Broadbeach's
12 plans for the garage and apartment unit above the
13 garage prior to June 8th, 2002?
14 MR. BEZEK: Calls for speculation as
11:33:29 15 phrased and conjecture. Lacks foundation.

16 THE WITNESS: What apartment unit?
18 Q What were Malibu Broadbeach's plans for the
19 structure -- the entire structure of the garage and
11:33:47 20 the units above it prior to June 8, 2002?
22 ambiguous. Internally unintelligible at this point.
23 Calls for speculation and conjecture and lacks
24 foundation.
11:34:01 25 THE WITNESS: I don't remember
50
956-6405 ~ (800) 48-SMART
11:34:01 1 specifically, but I know that they were going to
2 repaint it. And I don't recall if they were going
3 to replace the windows in it or not. I would have
4 to look through the records.
6 Q Now, there was to be reconstruction on the
7 main house; correct?
8 A Again, I would like you to define the word
9 "reconstruction" for me first.
11:34:27 10 Q Okay. There was some plan to do some
11 building construction -- whether remodeling or
12 reconstruction, there was some plan to do something

13 to the main house prior to June 8, 2002; correct?
14 MR. BEZEK: Objection. It's compound. The
11:34:45 15 question is vague and ambiguous and lacks
16 foundation.
17 THE WITNESS: Prior to June 8, I think we
18 were going to -- I would have to check the records
19 to be sure; but I think we were going to have the
11:35:01 20 windows and doors replaced and the plumbing fixtures
21 and cabinets replaced, and I think we were going to
22 paint it. And I would have to look at the documents
23 to see if there was anything else that we were going
24 to do.
25 ///
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2 Q The work that Malibu Broadbeach intended to
3 do on the main house prior to June 8, did that
4 require a building permit?
11:35:30 5 A Yes.
6 Q And was one obtained?
7 A I believe so, yes.
8 Q So all you recall as of this moment for the
9 garage structure was repainting?

11:35:43 10 A Well, you can read back my answer, if you
11 would like.
12 MR. BEZEK: And I'm going to object to the
13 question as these questions being outside the scope
14 of the PMK.
11:35:52 15 MS. COUSINEAU: It goes directly to the
16 loss that was suffered.
17 MR. BEZEK: I'm not here to argue about it.
18 I'm just making my objection.
11:36:00 20 Q What specifically do you recall
21 Malibu Broadbeach intended to do with the garage
22 structure prior to the accident?
23 A I have already answered that question for
24 you just a few minutes ago.
11:36:14 25 MR. BEZEK: Asked and answered.
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2 Q Well, you said "there may have been" in
3 response to some of these things.
4 There may have been plans to do windows and
11:36:23 5 doors. I just want to know what you specifically
6 recall was going to be done.

7 MR. BEZEK: Objection. Asked and answered.
8 It's now argumentative.
9 THE WITNESS: I would have to look at the
11:36:35 10 documents. I don't have a specific recollection.
11 Certainly we were going to paint it, and -- and I
12 think it was replace the windows as indicated. And
13 I would have to look at the documents to see if
14 there was anything else.
16 Q What documents would you look at?
17 A I would look at the file.
18 Q What file?
19 A The file on this property.
11:36:57 20 Q And whose file is that that you are
21 referring to?
22 A It's Malibu Broadbeach's file.
23 Q Malibu Broadbeach has a file specific to
24 the property at 32628 Pacific Coast Highway?
11:37:14 25 A I don't understand your question.
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11:37:15 1 Q Is that a file that is maintained by
2 Malibu Broadbeach Limited Partnership that is
3 specific to the property at

4 32628 Pacific Coast Highway?
11:37:24 5 A I think it's actually maintained by the
6 attorneys for MBLP.
7 Q Prior to this lawsuit, by whom was it
8 maintained?
9 A By Pacific Coast Management.
11:37:39 10 MR. BEZEK: Assumes facts not in evidence.
11 Go ahead.
13 Q So is this file that you are referring to
14 one and the same with a file belonging to
11:37:53 15 Pacific Coast Management?
17 ambiguous. It's unintelligible.
18 THE WITNESS: I think it also requires a
19 legal conclusion.
11:38:02 20 Are your client files your client's or are
21 they yours?
23 Q I'm referring to two different companies.
24 You said that PCM maintained it prior to this
11:38:11 25 litigation. I'm trying to figure out if we are
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11:38:13 1 talking about one and the same file.
2 Did Malibu Broadbeach have a separate file
3 from any file that PCM had?
4 MR. BEZEK: That question is overly broad.
11:38:22 5 Vague and ambiguous.
6 THE WITNESS: I don't know.
7 BY MS. COUSINEAU:
8 Q Who would know the answer to that question?
9 A I don't know.
11:38:28 10 MR. BEZEK: Calls for conjecture and
11 speculation.
13 Q When was the last time you saw the file --
14 first of all, how would you define this file? What
11:38:37 15 is it labeled or called?
16 MR. BEZEK: Assumes facts not in evidence.
17 THE WITNESS: I assume it has -- I don't
18 remember whether it says "Bluff House" -- part of it
19 says "Bluff House" on it and part of it says
11:38:54 20 "32628 PCH" on it.
22 Q Where was it maintained the last time you
23 saw it?
24 A I -- I don't remember. I don't have a
11:39:12 25 clear recollection of looking at the file -- you
55
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11:39:15 1 know, seeing it somewhere. I just don't remember
2 specifically. I know that the lawyers have all the
3 documents now; so you could or may have already
4 spoken to them about it.
11:39:28 5 Q And you're saying the documents in that
6 file would help you refresh your recollection of
7 what was intended to be done to the garage structure
8 prior to June 8, 2002?
9 A Yes.
11:39:42 10 Q And can you recall specifically what was in
11 that file that would help you refresh your
12 recollection?
13 A No.
14 Q What documents would you look for?
11:39:53 15 A I don't know. I would just read the file,
16 and presumably there would be things that would
17 trigger my memory.
18 Q Were there architectural plans drawn for
19 the main house prior to June 8, 2002?
11:40:08 20 MR. BEZEK: The question is overly broad.
21 Vague and ambiguous as to time.
22 THE WITNESS: I don't remember.
23 MR. BEZEK: While you are going through
24 your papers there, Maria, and before your next

11:40:38 25 question, I want to confer.
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3 reporter.)
4 MS. COUSINEAU: Have you finished
11:40:58 5 conferring?
6 MR. BEZEK: I have. Thank you.
7 While you are looking for your documents,
8 is this a good time to take a short break, then, or
9 do you have your documents ready?
11:41:24 10 MS. COUSINEAU: I've got my documents right
11 now. Thank you.
12 MR. BEZEK: All right.
13 MS. COUSINEAU: Let me hand you what I have
14 marked as Exhibit 42.
18 hereto.)
11:41:34 20 Q Do you recognize that building permit
21 application?

22 MR. BEZEK: Maria, this one has yellow
23 copying on it. Is that the one you wanted to give
24 us?
11:41:54 25 MS. COUSINEAU: It doesn't matter. I'll
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11:41:57 1 give that one to you.
2 MR. BEZEK: That one also has blood on it.
3 MS. COUSINEAU: Which one?
4 MR. BEZEK: The one in your hand, midway
11:42:09 5 up.
6 BY MS. COUSINEAU:
7 Q Do you recognize this document,
8 Mr. Gaggero?
9 A Yes.
11:44:23 10 Q And is this the building permit application
11 that was submitted for the main house?
12 A I don't know if it was submitted for the
13 main house only. I think it was -- I'm not sure if
14 this was the main house only or the main house and
11:44:41 15 the guesthouses.
16 Q And Colleen O'Brien was authorized to sign
17 on behalf of Malibu Broadbeach?
18 A Yes.

19 Q Is that your understanding?
11:44:52 20 A Yes.
21 Q Does that refresh your recollection of
22 whether or not she was, in fact, an agent of
24 A Not necessarily.
11:45:00 25 Q It's -- I suppose it's some sort of a legal
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11:45:07 1 connotation you're looking for, and I don't think
2 I'm qualified to comment on the legal ramifications
3 of whether she was or was not an agent for
4 Malibu Broadbeach.
11:45:27 5 MS. COUSINEAU: I've marked as Exhibit 43 a
6 combination sewer septic permit.
7 (Defendant's Exhibit 43 was marked for
11:45:37 10 hereto.)
12 Q Have you ever seen that before,
13 Mr. Gaggero?
14 A I'm not sure if I have seen it before.
11:46:27 15 Q Do you know who signed on behalf of

16 Malibu Broadbeach there on October 28, '02, on the
17 left-hand side?
18 A I can't make out the signature.
19 Q It does not appear to be Ms. O'Brien's,
11:46:38 20 does it?
21 A You're asking me does it look like the
22 signature on the Exhibit 42? I would say it does
23 not.
24 Q Well, are you familiar with
11:46:50 25 Colleen O'Brien's signature separate and apart from
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11:46:53 1 looking at Exhibit 42?
2 A I can see what it looks like on Exhibit 42.
3 Q Do you know for certain -- do you recognize
4 the signature on 42 as Colleen O'Brien's?
11:47:04 5 A I'm not a signature expert.
6 Q Do you recognize that as Colleen O'Brien's?
7 A I'm not a signature expert. I don't know
8 if that is Colleen O'Brien's for sure. I don't
9 know.
11:47:14 10 Q Have you seen Colleen O'Brien's signature
11 in the past?
12 A Yes.

13 Q And does that appear to you to be similar
14 to hers?
11:47:24 15 A I would have to look at other documents or
16 look at her signature to verify if that is or not,
17 and then I couldn't verify it for sure because I'm
18 not a signature expert.
19 Q I'm not asking you to make sure there is no
11:47:37 20 fraud here. I'm just trying to see if you recognize
21 Exhibit 42 as Colleen O'Brien's signature.
22 When I asked you about 43, you -- you
23 wanted to compare them; so I assume that you
24 believed 42 to have been signed by Colleen; is that
11:47:53 25 correct?
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11:47:55 1 MR. BEZEK: Okay. Move to strike all the
2 argumentative portion.
3 What is the question you want him to
4 answer?
6 Q Do you recognize the signature on
7 Exhibit 42 as Colleen O'Brien's?
9 BY MS. COUSINEAU:

11:48:16 10 Q Go ahead.
11 A I've given you all the answers to this line
12 of questioning.
13 Q Why did Malibu Broadbeach -- strike that.
14 Do you know why Colleen O'Brien is listed
11:48:30 15 as the owner on Exhibit 43?
16 MR. BEZEK: Hold on.
17 THE WITNESS: No.
19 Q Was Colleen O'Brien the owner of
11:48:53 20 32628 Pacific Coast Highway on October 28, 2002?
21 A No.
22 Q Why did Malibu Broadbeach abandon the
23 septic system in October of 2002?
11:49:13 25 Lacks foundation. Conjecture.
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11:49:21 1 THE WITNESS: In what year? What month?
2 What did you say?
3 BY MS. COUSINEAU:
4 Q October, 2002, is the date of this permit.
11:49:29 5 A Okay.
6 Q You need me to rephrase the question?

7 A No. I just don't understand your question.
8 I don't know that MBLP abandoned a septic system in
9 October of '02.
11:49:43 10 Q Why did Malibu Broadbeach file a septic
11 permit application identifying the description of
12 the work abandonment of the septic system.
14 Lacks foundation.
11:49:58 15 THE WITNESS: I don't know that
16 Malibu Broadbeach did file this permit application,
17 if that is what you are referring to, Exhibit 43.
19 Q Do you believe that somebody that was not
11:50:10 20 authorized to act on behalf of Malibu Broadbeach
21 filed this permit application?
22 A I don't know what to believe.
23 Q In fact, didn't Malibu Broadbeach abandon
24 the septic system and put in a new system?
11:50:27 25 A Which system are you speaking of?
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956-6405 ~ (800) 48-SMART
11:50:28 1 Q The septic system at
2 32628 Pacific Coast Highway.
3 A There were two.

4 Q Well, wasn't there just one connected to
11:50:36 5 both facilities?
6 A No.
7 Q Okay. Explain to me what two septic
8 systems were there.
9 A There was one for the guesthouses, and
11:50:44 10 there was one for the main house.
11 Q And which one was abandoned?
12 A Both.
13 Q Why was the septic system for the main
14 house abandoned?
11:51:10 15 A I don't remember specifically. I don't
16 remember whether -- I don't remember.
17 Q Why was the one for the guesthouse
18 abandoned?
19 A The department -- the building department
11:51:24 20 made us abandon it.
21 Q Who at the building department made you
22 abandon it?
24 Q Did you -- were you involved in any
11:51:32 25 conversations with anyone at the building department
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11:51:34 1 about that topic?
2 A No.
3 Q Did you receive any documents from the
4 building department telling you -- telling
11:51:41 5 Malibu Broadbeach that they would have to abandon
6 the septic system that was tied into the guesthouse.
7 A I may have.
8 Q And would those be in the Malibu Broadbeach
9 file that you referred to earlier?
11:51:54 10 MR. BEZEK: Calls for speculation. Lacks
11 foundation.
14 Q Why did the building department make you
11:52:01 15 abandon the septic system applicable to the
16 guesthouse?
17 MR. BEZEK: Calls for conjecture and
18 speculation as phrased.
21 Q Did you have any discussion with anybody
22 about why you had to abandon the septic system at
23 the guesthouse?
24 A You do not need to raise your voice at me.
11:52:21 25 Q I'm not intending to.
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11:52:23 1 Did you have any conversations with anybody
2 about why the building department required you to
3 abandon the septic system at the guesthouse?
4 MR. BEZEK: To the extent that violates the
11:52:35 5 attorney-client privilege, you don't have to answer
6 that question. If you have any knowledge otherwise,
7 please answer.
8 THE WITNESS: I was involved in some
9 conversations about the abandonment or about the
11:52:53 10 requirement to abandon the guesthouse septic system.
11 I don't recall who those conversations were with, as
12 I sit here today.
13 Q But do you recall the substance of those
14 conversations?
11:53:10 15 A Vaguely.
16 Q What do you recall about those
17 conversations?
18 A I recall that the City wanted a new septic
19 system put in for the guesthouse.
11:53:33 20 Q When did the City say that it wanted a new
21 septic system for the guesthouse?
22 A "Apartments" if that is a better word, not
23 "guesthouse."
24 I don't remember specifically.

11:53:50 25 Q Prior to the accident on June 8, 2002, was
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11:53:54 1 it Malibu Broadbeach's intention to change the
2 two units into a single unit?
3 A No.
4 Q When did Malibu Broadbeach decide to change
11:54:06 5 the two units into a single unit?
6 MR. BEZEK: Objection. Calls for
7 conjecture and speculation. Assumes facts not in
8 evidence. It's argumentative as phrased.
9 THE WITNESS: When the City told us that we
11:54:29 10 could not -- well, that's not that simple.
11 Around the time where the City told us that
12 the only way we could have electricity in the garage
13 structure, as you pointed out, was -- that's the
14 word you used for the garage structure -- the only
11:54:52 15 way we could have electricity turned on there again
16 was to permit the structure as a guesthouse, and the
17 only way it would become a legal guesthouse was to
18 have one unit and not two.
19 And so I suppose that that -- at or about
11:55:19 20 that time, Malibu Broadbeach made the decision to
21 open up the wall between -- it was actually, I

22 think, the City that suggested how we would combine
23 the units to put a doorway between the two units and
24 remove a kitchen in one of the units.
25 ///
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2 Q Why was the electricity turned off to the
3 garage structure?
4 A Because the car drove through it and the --
11:55:48 5 I guess the electrical and the power company and the
6 Department of Building and Safety felt it was a
7 prudent thing to do.
8 Q Was that a conversation that you had with
9 somebody from the Department of Building and Safety?
11:56:04 10 A No.
11 Q Do you recall whether it was the
12 Building and Safety Department or the power company
13 that said the electricity needed to be turned off?
14 A I wasn't present when the electricity was
11:56:18 15 turned off. I don't know which of them or if both
16 of them made that determination, but I know that
17 they both had a hand in it.
18 Q How long after the accident was it that the

19 electricity was turned off to the guest structure?
11:56:34 20 MR. BEZEK: Did you say "guest structure"?
21 "Garage structure"?
22 MS. COUSINEAU: "Garage structure." Thank
23 you.
24 THE WITNESS: I don't know because I wasn't
11:56:43 25 there.
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2 Q Well, was the electricity turned off the
3 first time that you saw the garage structure after
4 the accident?
11:56:52 5 A Yes.
6 Q Do you know whether the septic permit
7 application that is marked as Exhibit 43 -- was that
8 for the main house or the guesthouse?
11:57:21 10 THE WITNESS: I think it was for the main
11 house.
13 Q Eventually, were the two systems combined?
14 A Yes.
11:57:37 15 Q And was that at the requirement of the

16 Building and Safety Department?
17 A Yes.
18 Q From your conversations about abandoning
19 the septic system, do you recall why the
11:58:09 20 Building Department was requiring the systems to be
21 combined?
22 MR. BEZEK: Can you read that back, please,
23 and see -- "from the conversations"?
24 MS. COUSINEAU: Yes. He said that he
11:58:22 25 recalled certain conversations regarding abandoning
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11:58:27 1 the septic system. He didn't recall who they were.
2 Q My question is do you recall why the
3 systems had to be combined?
4 A It was my understanding there is an
11:58:46 5 individual that runs the health department at the
6 City of Malibu and he can dictate how he wants
7 systems set up on -- homes and the size of them
8 and -- and so forth; and it's my understanding that
9 the City required that they -- this individual in
11:59:10 10 the City required that they be combined.
11 Q Do you recall that individual's name?
12 A No.

13 Q To your knowledge, is he still the person
14 at the health department that dictates the septic
11:59:27 15 systems in Malibu?
16 A I don't know.
17 Q Is it true that the systems needed to be
18 combined regardless of what happened at the -- to
19 the garage structure?
11:59:47 20 A No.
21 MR. BEZEK: Objection. Vague and
22 ambiguous.
24 Q So if I --
11:59:58 25 A When you say "What happened to the garage
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12:00:00 1 structure?" you mean the accident; right?
2 Q Yes.
3 A Yes.
4 That would be a "No."
12:00:16 5 Q If I asked this already, I apologize; but
6 prior to June 8, 2002 -- strike that. Never mind.
7 Eventually, Malibu Broadbeach broadened the
8 remodeling plans at the main house; is that correct?
9 MR. BEZEK: The question is vague.

12:00:57 10 THE WITNESS: Would you ask the question
11 again, please.
13 Q Certainly.
14 Eventually, Malibu Broadbeach broadened the
12:01:05 15 plans to remodel the main house beyond those plans
16 that are in the building permit application of
17 April 17, 2002; correct?
18 MR. BEZEK: Still vague.
19 THE WITNESS: I don't even know what plans
12:01:21 20 you are talking about. If you could show those to
21 me, that would be helpful. If you could define what
22 you mean by "broadened," that would be helpful as
23 well.
12:01:31 25 Q Sometime after Exhibit 42 was filed with
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956-6405 ~ (800) 48-SMART
12:01:34 1 the City of Malibu, is it true that
2 Malibu Broadbeach decided to increase the square
3 footage of the main house?
4 A Not to my recollection.
12:01:54 5 Q Was there a covered patio that was enclosed
6 at the main house?

7 A Yes.
8 Q And by enclosing that covered patio, did
9 the square footage of the main house increase?
12:02:16 10 MR. BEZEK: The question now is internally
11 vague and ambiguous, particularly in relation to the
12 question that was just asked and answered prior to
13 that.
14 THE WITNESS: I would assume that, when the
12:02:28 15 patio was enclosed and incorporated into the main
16 house, that it did increase the square footage of
17 the main house.
19 Q And was a new building permit application
12:02:39 20 filed for that increased square footage?
21 A I don't know.
22 Q To your knowledge, was a planning review
23 required by the City of Malibu because of the
24 increased square footage to the main house?
12:02:55 25 MR. BEZEK: Vague and ambiguous.
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12:02:58 1 Conjecture and speculation. Lacks foundation.
3 BY MS. COUSINEAU:

4 Q Was there a planning review done of any
12:03:08 5 remodel at the main house?
8 BY MS. COUSINEAU:
9 Q So you don't know whether Malibu Broadbeach
12:03:32 10 had to go before any planning commission in order to
11 increase the square footage of the main house?
12 MR. BEZEK: Argumentative.
13 THE WITNESS: I do know the answer to that
14 question.
16 Q What is it?
17 A No. I mean, no, they did not have to go
18 before any planning commission. But that's -- but
19 you are assuming that -- what was the last part of
12:03:59 20 your question? That they added square footage to
21 the house?
22 Q Correct.
23 A I don't know that Malibu Broadbeach added
24 square footage to the house, but I know they never
12:04:07 25 had to go before a planning commission.
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12:04:08 1 Q Okay. But the square footage of the house
2 was increased? Am I mistaken there?
3 MR. BEZEK: Vague and ambiguous.
4 THE WITNESS: At some point in time, it
12:04:21 5 was.
6 BY MS. COUSINEAU:
7 Q While Malibu Broadbeach owned it, the main
8 house square footage was increased?
12:04:30 10 Q Okay. Then I'm confused.
11 When the covered patio of the main house
12 was enclosed, did that increase the square footage
13 of the main house?
14 A Yes.
12:04:41 15 MR. BEZEK: Asked and answered.
17 Q So maybe -- maybe I'm confused.
18 Did Malibu Broadbeach -- was
19 Malibu Broadbeach the owner of the main house when
12:04:56 20 the patio was enclosed?
21 A No.
22 Q Who was?
23 A I don't know.
24 Q Was it prior to Malibu Broadbeach's
12:05:07 25 ownership of the property?
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12:05:08 1 A Yes.
2 Q So at the time that Malibu Broadbeach
3 purchased the property at
4 32628 Pacific Coast Highway, the covered patio was
12:05:45 5 already an enclosed space?
6 A That's correct.
7 Q Was it a habitable space, to your
8 knowledge?
9 A Yes.
12:05:53 10 Q And was it space that was recognized by the
11 City of Malibu as square footage of the property?
12 A I don't know.
13 (Whereupon, the witness and his attorney
12:06:08 15 reporter.)
16 MS. COUSINEAU: Are you finished?
17 MR. BEZEK: (No audible response.)
19 Q Prior to the date of the accident, did
12:07:20 20 Malibu Broadbeach have -- strike that.
21 Prior to June 8, 2002, the two units were
22 vacant; correct?
23 A You already asked that question.
24 Q I'm just trying to put this in relative

12:07:44 25 space here so that it makes sense in light of my
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12:07:47 1 questions to follow.
2 A Okay.
3 Q So they were vacant?
4 A June 8 being the date of accident -- you
12:07:53 5 represented that to me. I don't know that
6 specifically to be true -- but, yes, the
7 two apartments were vacant prior to the accident.
8 Q What did Malibu Broadbeach tell the
9 tenants -- strike that.
12:08:10 10 Did you -- did Malibu Broadbeach ask the
11 tenants to vacate those two units?
12 A Yes.
13 Q Why?
14 A I don't remember specifically.
12:08:28 15 Q Do you have any general recollection?
16 A No.
17 Q Who on behalf of Malibu Broadbeach asked
18 those tenants to vacate the property?
12:08:44 20 Q How long did Malibu Broadbeach expect those
21 units to be vacant?

22 A Until they could clean them up.
23 Q And by "cleaning them up," you mean
24 repainting and possibly replacing windows?
12:09:14 25 A To the best of my recollection. There may
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12:09:17 1 have been other things that were required to get
2 them in shape.
3 Q But you don't recall what those are today?
4 A Not as I sit here.
12:09:32 5 Q How many people were living in each of the
6 units above the garage?
7 MR. BEZEK: The question is overly broad.
8 Vague and ambiguous.
9 THE WITNESS: Three.
11 Q Two in one unit and one in the other?
12 A Yes.
13 Q Do you recall the names of either -- any of
14 those people?
12:09:52 15 A No.
16 MR. BEZEK: Before -- before your next
17 question.
18 (Whereupon, the witness and his attorney

12:10:03 20 reporter.)
22 Q Prior to June 8, 2002, had there been a
23 tenant in the main house?
24 A I don't know.
12:10:31 25 Q When Malibu Broadbeach purchased this
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956-6405 ~ (800) 48-SMART
12:10:34 1 property, was it the intention to fix it up to sell
2 it?
3 MR. BEZEK: It's been asked and answered.
4 THE WITNESS: It was an investment, and
12:10:53 5 there was no predetermined disposition of the
6 property. It was contemplated.
7 BY MS. COUSINEAU:
8 Q Is the guest- -- is the guesthouse now
9 available for rent?
12:11:14 10 A The entire property is available for rent.
11 Q Is the guesthouse available for rent
12 separate and apart from the front house?
13 A I don't see why not.
14 Q Is it offered for rent that way?
12:11:26 15 A The property is offered for lease, and if

16 somebody wanted to lease just the guesthouse, we
17 would entertain that.
18 Q What realty company, if there is one, has
19 the listing for the house?
12:11:46 20 A Pritchett Rapf Realty.
21 Q And is there a separate price for the lease
22 of the guesthouse?
24 Q So you are saying if, in fact, somebody
12:12:07 25 came to you and wanted to lease just the guesthouse
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12:12:10 1 right now -- let's say for one year -- that is
2 something that Malibu Broadbeach would entertain?
3 A That's correct.
4 Q Would that require you to take it off the
12:12:19 5 market for sale?
6 A It would depend on the terms of the lease.
7 Q Do you know what the market price is
8 currently for the rental of that unit?
9 A Not without doing some research.
12:12:49 10 Q What was the rent Malibu Broadbeach was
11 getting prior to June 8, 2002, for those two units?

13 Q Is it your -- strike that.
14 How much rent has Malibu Broadbeach lost as
12:13:48 15 a result of the accident?
16 A Again, I'm not prepared to comment on that
17 today because I didn't see it in the subpoena;
18 but -- so I just didn't read the files to look at
19 that.
12:14:04 20 Could you show me which numbers that falls
21 under.
22 Q It goes to No. 1, the loss that was
23 suffered at the property.
24 A Oh, I see.
12:14:11 25 Wasn't that already tendered to you? That
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12:14:14 1 amount in the claim?
2 Q I have received rental agreements.
3 My question to you is how long -- what is
4 the lost rent that Malibu Broadbeach believes it has
12:14:31 5 suffered as a result of this -- the car accident on
6 June 8?
7 A I believe that claim was mailed to
8 State Farm.
9 Q Well, as the person designated to speak to

12:14:45 10 that, can you tell me what the basis of that claim
11 is.
12 A Oh, the basis of that claim is the rental
13 amount of the two units over the term until we got a
14 certificate of occupancy again. For the -- I
12:15:11 15 shouldn't say "again." Until we got a certificate
16 of occupancy for the apartment or guesthouse
17 upstairs above the garage.
18 MS. COUSINEAU: Well, I'm going mark as
19 Exhibit 44 a damage summary dated July 28, 2004.
23 hereto.)
12:15:35 25 Q Have you seen that before?
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12:16:01 1 A I have seen it. I -- I can't tell you that
2 I have gone through it thoroughly, but I have seen
3 it.
4 Q Well, there is a line item there that says
12:16:08 5 "Rental loss through July, 2004, of $78,130."
6 Do you see that?

7 A Yes.
8 Q Is that what you understand to be
9 Malibu Broadbeach's claim for lost rents?
12:16:22 10 A Yes.
11 Q And how was that number calculated?
12 A As I indicated earlier, from the accident
13 through the certificate of occupancy.
14 Q Okay. So the -- the start date for the
12:16:39 15 rental loss is the date of the accident, June 8,
16 2002?
17 A It should be right around there.
18 Q What does that mean?
19 A Well, I don't know that it's specifically
12:16:52 20 that date. Maybe it was from July 1st. Maybe it
21 was prorated. I don't know. I did know. I just
22 don't remember right now.
23 Q Well, who would know?
24 A I think Tom Stevens did the calculation on
12:17:04 25 this at my instruction, but I just don't recall if
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12:17:07 1 it was from June 8th or if it was from June 15th or
2 it was from July 1st. It should have been from
3 June 8th through the date of the certificate of

4 occupancy.
12:17:21 5 Q And what rate was used? What monthly rate
6 was used?
7 A The monthly rates that were in effect with
8 the prior tenants.
9 Q And you don't recall what those are,
12:17:41 10 sitting here today?
11 A No, I don't.
12 Q And those two units, then, you combined
13 that figure and calculated from some time after
14 June 8, 2002, through sometime in July of 2004 for
12:17:55 15 the figure of 78,130?
16 A I've answered that question as specifically
17 as I can, and I didn't -- don't recall phrasing it
18 like that.
19 Q I'm just trying to understand if, in fact,
12:18:10 20 the two numbers were combined and then applied for
21 the duration that you have described as sometime
22 after the date of the accident? Whether it's
23 July 1st or June 15, you can't say, though, as to
24 this, July 4th -- July of 2004; correct?
12:18:30 25 MR. BEZEK: Wait. I'm going to object to
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12:18:32 1 the question. It's vague. Ambiguous.
2 Unintelligible. Compound.
3 If you understand the question --
4 questions, you can answer either/or both.
12:18:47 5 THE WITNESS: I -- I think I have answered
6 your question pretty clearly. If you can be more
7 succinct in what you don't understand, I'll try to
8 help you.
9 BY MS. COUSINEAU:
12:18:53 10 Q Were both of the rental amounts combined
11 for the duration that you have calculated a loss?
12 A You mean both units?
13 Q Yes.
14 A Yes.
12:19:01 15 Q And do you know when in July of 2004 the
16 rental loss ended?
18 THE WITNESS: It would be the date of the
19 certificate of occupancy for the third time or it
12:19:16 20 should have been, if it wasn't calculated.
22 Q And you can't tell me whether it was or
23 wasn't?
24 A It should have been. I didn't do the
12:19:26 25 actual preparation of this document, nor did I
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956-6405 ~ (800) 48-SMART

12:19:29 1 manipulate the calculator.
2 So I know what my instructions were and
3 whether they were followed through -- I did not have
4 this audited afterwards to ensure that it is what I
12:19:42 5 instructed the calculation and formula to be.
6 Q When you -- strike that.
7 Did you give that instruction to
8 Mr. Stevens?
9 A I did.
12:19:55 10 Q And when you instructed Mr. Stevens to
11 calculate this amount, did you first look at the
12 policy to see what, if anything, the policy covers
13 with regard to lost rents?
14 MR. BEZEK: Calls for a legal conclusion.
12:20:08 15 MS. COUSINEAU: I'm just asking him if he
16 looked at the policy.
17 THE WITNESS: No.
18 MR. BEZEK: No, that's not what you asked
19 him. You asked him if he looked at the policy for
12:20:17 20 the purposes you specified.
21 MS. COUSINEAU: Correct.
22 MR. BEZEK: And that does call for a legal
23 conclusion. I'm not arguing you with. I'm just
24 making my objections.

25 ///
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956-6405 ~ (800) 48-SMART
2 Q So, as you sit here today, do you know what
3 the State Farm policy provides with regard to lost
4 rents?
12:20:34 5 MR. BEZEK: Calls for a legal conclusion.
6 THE WITNESS: The "policy" meaning which
7 policy?
8 BY MS. COUSINEAU:
9 Q The State Farm policy of insurance that was
12:20:48 10 in force on the day of the accident.
11 A I don't know.
12 You mean the State Farm policy that was in
13 force for this building? Not that was in force
14 for -- I mean, isn't there two policies on this
12:21:09 15 property?
16 Q I don't believe so.
17 A I think there is.
18 Q Okay.
19 A But -- and I'm not sure on that either. I
12:21:15 20 think there were two policies in force. "This
21 policy" -- that's why I asked you which policy. So

22 I -- I don't know for sure.
23 Q It's your belief that there is a separate
24 policy for the main house and -- and a separate
12:21:28 25 policy for the garage structure?
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12:21:30 1 A For the apartments and the garage
2 structure, yes.
3 Q Were you involved in the negotiations --
4 strike that.
12:21:42 5 Were you involved in obtaining the policy
6 on the property on PCH?
7 A Peripherally.
8 Q And what was your peripheral involvement?
9 A I think I need the question to be more
12:22:10 10 specific than that.
11 Q You said you were peripherally involved in
12 obtaining the policy for this property. What was
13 your peripheral involvement?
14 A I had knowledge that the policy was being
12:22:19 15 obtained from State Farm.
16 Q And who was doing -- who was obtaining that
17 on behalf of the Malibu Broadbeach?
18 A Pacific Coast Management.

19 Q Was there somebody in particular at
12:22:35 20 Pacific Coast Management that was responsible for
21 doing that?
22 A Doing what?
23 Q Getting the policy on the property on the
24 Pacific Coast Highway property.
12:22:50 25 A It was a combination between Bob Haber and
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12:22:52 1 myself, as I recall -- a combination of efforts
2 between Bob Haber and myself.
3 Q Prior to the property on
4 Pacific Coast Highway, had you ever obtained a
12:23:12 5 State Farm policy from Mr. Forbing before?
6 A No.
7 Q Were all of your prior State Farm policies
8 obtained through Darvin Howell?
9 A You are talking about me as an individual
12:23:26 10 now?
11 Q You or any of your entities.
12 A What entities are you assuming I have?
13 Q I'm not assuming any. You said you were
14 involved in this one -- you and Bob Haber.
12:23:36 15 Prior to this, when you either as an

16 individual or on behalf of the business obtained a
17 State Farm policy had that been through
18 Darvin Howell?
19 A Exclusive or were there other agents? I
12:23:51 20 don't recall.
21 Q How is it that you came to use Mr. Forbing
22 on this particular property?
23 A He was the agent of the seller.
24 Q Did you have any communications with
12:24:08 25 Mr. Forbing? You directly?
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12:24:10 1 A At what point in time?
2 Q Prior to the issuance of the policy on
4 A I don't recall.
12:24:31 5 Q Did you request that PCM -- that
6 Pacific Coast Management -- strike that.
7 Did you ask Mr. Forbing for any particular
8 type of policy? You specifically.
9 A At what point in time?
12:24:48 10 Q Prior to the initial policy on
12 A You mean when the seller owned the

13 property?
14 Q I'm sorry?
12:25:02 15 A You mean when the seller owned the
16 property?
17 Q Well, you have -- is it true that you have
18 no recollection of speaking to Mr. Forbing directly?
19 A No.
12:25:13 20 Q Do you have a recollection of ever speaking
21 to Mr. Forbing directly?
22 A Yes.
23 Q When was that conversation?
24 A There were several conversations, and I
12:25:26 25 recall several conversations. They are all sort of
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12:25:29 1 blending together right now.
2 Q Well, tell me the first one that you
3 recall.
4 A As I indicated, they are blended together;
12:25:35 5 so I can't put them into first, second, third, last.
6 Q Okay. Tell me everything you recall about
7 your conversations with Mr. Forbing, regardless of
8 when those conversations took place.
9 A I don't recall any specifics.

12:25:55 10 Q Were all of your conversations with
11 Mr. Forbing on the telephone?
12 A Yes.
13 Q Can you estimate how many times you spoke
14 to him?
12:26:01 15 A No.
16 Q Can you tell me whether any of these
17 conversations took place prior to the policy being
18 issued to Malibu Broadbeach for
19 32628 Pacific Coast Highway?
12:26:15 20 A I'm not sure.
21 Q Can you tell me anything about the
22 substance of any conversation you had with
23 Mr. Forbing?
24 A I just don't recall the substance of my
12:26:29 25 conversations with Mr. Forbing. I know I have
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956-6405 ~ (800) 48-SMART
12:26:31 1 spoken with him on multiple occasions, and I don't
2 remember if I spoke to him before this policy was
3 issued or not; but I know I have spoken with him and
4 at such time as I read through all of the files and
12:26:51 5 immerse myself back into this again, I will
6 undoubtedly be a little more clear on what and when.

7 Q Do you recall why you spoke to Mr. Forbing?
8 A No.
9 Q Do you know whether you spoke to
12:27:06 10 Mr. Forbing about the loss which was the car going
11 through the garage?
12 A I'm not sure.
13 MS. COUSINEAU: Can we take a break.
14 THE WITNESS: Lunch break?
12:27:32 15 MS. COUSINEAU: Sure. We can take a quick
16 lunch break.
17 (The proceedings were adjourned for
18 lunch from 12:27 P.M. to 1:40 P.M.)
13:40:49 20 Q Mr. Gaggero, what documents did you review
21 prior to coming here today to prepare for this
22 deposition?
23 A The Notice of Deposition.
24 Q Anything else?
13:41:00 25 A No.
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13:41:10 1 MS. COUSINEAU: I'm going to show you what
2 was previously marked as Exhibit 17 and ask you if
3 you have ever seen that before.

4 (Defendant's Exhibit 17, which was
13:41:23 5 previously marked for identification, is
6 attached hereto.)
7 THE WITNESS: Yes.
8 BY MS. COUSINEAU:
9 Q And when did you last see it?
13:41:45 10 A I don't -- probably -- I don't remember
11 specifically. I know there was some communication
12 between David Chatfield and State Farm and
13 State Farm refused to extend the -- the cutoff date
14 for making a claim or the statute of limitations or
13:42:11 15 something like that.
16 So we had to put together a -- sort of a
17 damages up to about that point so that we could
18 quickly get the claim in so that we didn't lose our
19 right to make a claim. So whenever that was,
13:42:27 20 whenever that all happened is about the time I saw
21 it.
22 Q You understood that State Farm refused to
23 extend the cutoff date to submit the claim?
24 A Yes.
13:42:36 25 Q How did you come to that understanding?
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13:42:43 1 MR. BEZEK: If we have an agreement that
2 it's not a waiver of the privilege and it's limited
3 to this one particular area, he can answer that
4 question.
13:42:50 5 MS. COUSINEAU: Well, this is what I was
6 saying earlier -- that to the extent an attorney is
7 presenting the claim on behalf of an insured, I
8 think any communications between that attorney and
9 the insured, as it relates to what the insured
13:43:05 10 knows, is no longer privileged. It can't be.
11 How can an insured ever present a claim
12 or -- I would never be able to understand what the
13 insured is making their claims based on.
14 MR. BEZEK: Well, again, I disagree with
13:43:16 15 the analysis. And to give you some idea of why I
16 disagree, I think it depends upon how that lawyer
17 presents the claim and what his role is in the
18 preparation of the claim and whether he is acting
19 outside his role as an advisor or whether he is
13:43:34 20 actually placed into a testimonial capacity.
21 So -- and that still is separable from
22 conversations that they had had with his client
23 about the contents of the claim. But I think --
24 MS. COUSINEAU: Just to respond to that.
13:43:49 25 In light of the fact that he was designated
91
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