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HomeMy WebLinkAboutFile 3 of 3 - Administrative Hearing - Eminent Domain FAILED ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 948 a.m. 2 BY MR. TUCHMAN: 3 Q State your name for the record, please 4 A Paul Bernard. 5 Q And your address, please? 6 A Business or residence? 7 Q Both. 8 A Business, 7545 Irvine Center Drive, Suite 200, 9 Irvine, California 92618. Residence, 7507 Marmande, 10 M-a-r-m-a-n-d-e, Place, Rancho Cucamonga, California 11 91730. 12 Q Are you currently employed? 13 A Self-employed. 14 Q As what? 15 A Consultant,policing consultant to the Ezralow 16 Leasing Properties. 17 Q What's your business address? 18 A I just gave it. 19 Q What's the name on the door at the business? 20 A Ezralow Retail Properties. 21 Q Are you currently licensed? 22 A Yes. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 948 a.m. 2 BY MR. TUCHMAN: 3 Q State your name for the record, please 4 A Paul Bernard. 5 Q And your address, please? 6 A Business or residence? 7 Q Both. 8 A Business, 7545 Irvine Center Drive, Suite 200, 9 Irvine, California 92618. Residence, 7507 Marmande, 10 M-a-r-m-a-n-d-e, Place, Rancho Cucamonga, California 11 91730. 12 Q Are you currently employed? 13 A Self-employed. 14 Q As what? 15 A I Consultant, policing consultant to the Ezralow 16. Leasing Properties. 17 Q What's your business address? 18 A I just gave it. 19 Q What's the name on the door at the business? 20 A Ezralow Retail Properties. 21 Q Are you currently licensed? 22 A Yes. 23 Q What kind of licenses do you hold? 24 A Agency. 25 Q What's the license number? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 23 Q Those future earns are going to be stemming from 24 what? 25 A Lease transactions on retail development. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 2 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Are you the exclusive agent for Ezralow? 2 A For all of Ezralow? 3 Q Monterey Park LLC, Ezralow Retail Properties, 4 The Ezralow Company and HCA, Huntington Center Associates. 5 A I don't know the exact capacity, if that's how 6 they -- I don't know how they. . 7 Q That's fair. What's your function f6r the 8 Ezralow related companies? 9 A I handle the lease transactions, leasing 10 negotiations for all the retail developments. 11 Q How much are you paid? 12 A I am paid one dollar per square foot. 13 Q One-time fee? 14 A Half upon signing,half upon opening. 15 Q So it's fair to say you've been paid some money 16 relative to the Huntington Center is that correct? 17 A Draw. It's not directly related to Huntington 18 Center. It's as my capacity as doing leasing for their 19 retail developments. 20 Q Any time you get a check, it's for all the 21 developments you're involved in? 22 A Correct. 23 'Q What other developments are you involved in? 24 A Monterey Park, Downey, Huntington Beach, Lake 25 Forest. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 3 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Can you describe how much money you have earned 2 in terms of your half dollar for relative total to square 3 footage that you have signed up? 4 MR. SHIPOW: I'm going to object to that as calling 5 for confidential information, irrelevant. 6 If you feel it's confidential and you don't want 7 to reveal it, you don't have to. If it's not confidential 8 to you, then you can go ahead and answer the question. 9 THE WITNESS: Yeah, it's, since no leases have been 10 signed in Huntington Beach, it's not relevant in my 11 opinion. 12 BY MR. TUCHMAN: 13 Q Have you received any money for any leasing 14 activity relative to the Huntington Center? 15 A No. 16 Q Have any letters of intent been signed relative 17 to the Huntington Center? 18 A Yes. 19 Q How many? 20 A I don't recall. 21 Q More than 5? 22 A Yes. 23 Q More than ten? 24 A I'm not sure. 25 Q More than a hundred? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 4 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 Q More than 50? 3 A No. 4 Q More than 20? 5 A I don't know. 6 Q Who are the LOIs? 7 MR. SHIPOW: Signed LOIs is that what you're asking? 8 MR. TUCHMAN: Sure. 9 THE WITNESS: Rubio's, Pizzarito, Pasta Bravo, 10 Subway, Buca Di Beppo, On the Board, California Pizza 11 Kitchen, Islands, Ruth's Chris Steakhouse, Elephant Bar, 12 Jillian's, Coldstone Creamery, Clothestime, Huntington 13 Surf& Sport, Great Indoors. That's all I recall. 14 BY MR. TUCHMAN: 15 Q When do you expect to be paid any amount of money 16 relative to these LOIs being signed? 17 A I don't get paid upon signing an LOI. I get paid 18 upon signing of lease. 19 Q What's an LOI? 20 A Letter Of Intent. 21 Q What's the purpose of a letter of intent? 22 A Nonbinding agreement to set forth general 23 business agreements. 24 Q Have any leases been signed for the Huntington 25 Center? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 5 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 Q. Have any leases been drafted? 3 A They're in process, but not been completed. 4 Q Are there any LOIs that are out there that are 5 unsigned? 6 A Yes. 7 Q How many? 8 A I have no idea. 9 Q Could you characterize that at about a hundred? 10 A Less. 11 Q Is one of the conditions of the LOI with Great 12 Indoors that Montgomery Ward be removed from the premises? 13 A I don't know all the conditions or recall all the 14 conditions. 15 Q Do you know if there's anything relating to 16 Montgomery Ward relative to Great Indoors? 17 A I believe there's a contingency of redevelopment, 18 but I don't know how, I'm not an attorney. I don't know 19 exact the verbiage. 20 Q The contingency redevelopment calls for the 21 elimination of Montgomery Wards; am I correct? 22 A I don't know. I don't get involved. 23 Q Who gets involved? 24 A Doug Gray and Bryan Ezralow. 25 Q What letters of intent are there that are ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 6 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 unsigned, to which entities? 2 A Old Navy, William Sonoma? 3 A I'd like to go back one step to another signed 4 LOI. 5 Q Sure. 6 A Cost Plus. 7 Other letters, I don't recall off the top of my 8 head. 9 Q William Sonoma, which store though? 10 A Elm Street. 11 Q What anchors do you have? 12 A None. 13 Q What anchors are you courting? 14 A Elm Street, Old Navy, Great Indoors, Century 15 Theaters, Edwards Theaters, Kokorian Theaters, Pacific 16 Theaters. 17 Q Did you say Pacific? 18 A Uh-huh. 19 Q That's a yes? 20 A Yes excuse me. 21 Q What about AMC Theaters? 22 A We have not been courting them for 60 days. 23 Q What happened with them? 24 A They're having financial troubles that are beyond 25 our willingness to negotiate with them. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 7 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q You originally had some other theater outfit in 2 there, right? 3 A I'm sorry. I don't understand the question. 4 Q There was an LOI you had, was it Edwards? 5 A I believe when we bought the property there was a 6 lease with Edwards. I don't know if it was a LOI or a 7 . lease. I don't get involved in, in an ongoing concern. 8 Q That's been torn up; am I correct? 9 A If I'm negotiating with other tenants, I assume 10 that's correct. 11 Q Now, I want to go over your educational 12 background briefly. 13 A Uh-huh. 14 Q Did you attend high school? 15 A Yes. 16 Q Where? 17 A San Clemente High School. 18 Q Down here in Orange County? 19 A Yes. 20 Q What year did you graduate? 21 A 1987. 22 Q What did you do in terms of education after that? 23 A Went to Saddleback Junior College for three 24 years. 25 Q Anything else? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 8 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 A Cal Poly Pomona to finish and graduate with a BS, 2 my major is financial and real estate law. 3 Q. What year did you get your BS from Cal Poly 4 Pomona? 5 A 93. 6 Q What years did you attend Saddleback? 7 A 87, 88, 89. 8 Q Okay. Any other school besides Saddleback and 9 Cal Poly Pomona? 10 A . No. 11 Q Have you taken any courses to get your license? 12 A My degree qualified me for those courses. 13 Q Okay. Any schooling or education after 1993? 14 A Follow-up continuation courses to renew my real 15 estate license. 16 Q How have you made a living since 1993? 17 A Real estate brokerage, investment sales, until 18 1999, and that's when I joined Ezralow retail properties 19 in '99. 20 Q Since 1999 have you worked exclusively for the 21 Ezralow Retail Properties? 22 A Yes. 23 Q Prior to 1999 where did you work? 24 A Sperry Van Ness. 25 Q Is that how you met Doug Gray? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 9 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A Yes. 2 Q So you worked for Sperry Van Ness for about 6 3 years is that correct? 4 A No. 5 Q What years? 6 , A I started at Sperry Van Ness in 1991. 7 Q Were you still in college then? 8 A Correct. 9 Q You were there until approximately 1999? 10 A Correct. 11 Q Doug Gray was a principal of Sperry Van Ness? 12 A I don't know. 13 Q Was he a very high up or just a sales man? 14 A I believe he was a partner. 15 Q Okay. And you went over to Ezralow because Doug 16 Gray went ever to Ezralow? 17 A He made an offer for me to go to Ezralow, yes. 18 Q The office that you work at over in Irvine? 19 A Uh-huh. 20 Q Who physically is in that office? 21 A Doug Gray, myself and Lori fox. 22 Q How do you.spell Lori? 23 A L-o-r-i. 24 Q And what's her title? 25 A I believe it's office administrator but I'm not ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 10 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 positive of that. 2 Q And the name on the door over there in Irvine is 3 what? 4 A Ezralow Retail Properties. 5 Q And have you an office there? 6 A I do. 7 Q What is your phone number there? 8 A Area code (949) 623-8333. 9 Q Extension? 10 A It's a receptionist. Just ask for me. 11 Q What's the fax number over there? 12 A (949) 623-8334. 13 Q Do you have a cell or business or pager? 14 A I have a cell. 15 Q What's your cell? 16 A (949) 632-5105. 17 Q Has this been the same cell number for over the 18 past 14 months? 19 A Yes. 20 Q Any other phone numbers or fax numbers that you 21 have used pertaining to business in the last 14 months? 22 A Residence. 23 Q What's your residence? 24 A (909) 948-7781. 25 Q Do you have a fax number over there at your ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 11 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 residence? 2 A I do not. 3 Q Do you use your regular phone number as a fax 4 number? 5 A I have no fax ability. That phone to answer your 6 . question has been used maybe three times for business but 7 it has been used. 8 Q Okay. Now do you ever use the offices over there 9 in Calabasas? 10 A If we have general meetings. But I don't go 11 therefore any other reason unless a meeting has been 12 called. 13 Q You speak to anyone regarding this deposition? 14 A My wife. 15 Q Did you prepare for this deposition? 16 A No. 17 Q Did you meet with Mr. Shipow or anybody? 18 A This morning. 19 Q At any other time? 20 A We had a general meeting a few months ago. I was .21 actually asked to step out of that meeting because at that 22 time I didn't have a deposition date. So. 23 Q Okay. Who else was present at that meeting? 24 A Doug Gray, Bryan Ezralow, Scott Dinovitz. 25 Q Okay. Who's Scott Dinovitz? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 12 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 A He handled some of the construction Issues, 2 precise plan issues I believe. 3 Q What's his relationship to Doug Gray? 4 A I have -- Scott came with the Ezralow Company. I 5 don't know that there's any relationship with Doug. 6 Q Now Doug Gray, what's his position in the 7 Ezralow, is it Ezralow Company or Ezralow Retail 8 Properties? A Ezralow Retail Properties. 9 Q What's his position with the company? 10 A Principal. 11 Q Do you know who else is principal in that company 12 I don't. 13 Q Are you a principal in Ezralow Retail Properties? 14 A I am not. 15 Q Are you a principal in or a member of any 16 companies where Mr. Gray or any of Ezralow people have 17 ownership interests? 18 A Could you restate the question. 19 Q Do you have an ownership interest in any entity 20 related to Ezralow? 21 A No. 22 Q Who's Bryan Ezralow? 23 A He is, I don't know what his title is for Ezralow 24 Retail Properties. I believe he's the president of 25 Ezralow Company. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 13 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Now, is Doug Gray, is he an officer of the 2 Ezralow Company? 3 MR. SHIPOW: Objection lack of foundation, you can 4 answer if you know but don't guess. 5 THE WITNESS: I don't know. 6 BY MR. TUCHMAN: 7 Q Has he told you he's a president or secretary of 8 the Ezralow Company? 9 A No. 10 Q Now who's Marshall Ezralow? 11 A Founder of the Ezralow Company. 12 Q Okay. And do you have a day to day, do you have 13 day-to-day contact with him? 14 A I do not. 15 Q Do you have day-to-day contact with Bryan 16 Ezralow? 17 A No. 18 Q Who do you have day-to-day contact with? 19 A Doug. 20 Q Would you say Doug Gray is your supervisor? 21 A Yes. 22 Q Does Doug Gray also tell you what to do? 23 A Yes. 24 Q Does he tell you what to do on day-to-day basis? 25 A Not daily. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 14 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Does he tell you what to do with respect to who 2 to send LOIs to? 3 A Yes and no. 4 Q Can you please explain that then? 5 A He will direct me to tenants that he thinks he'd 6 like to see in the project. And if a LOI comes in on a 7 contact that I've made, I can, you know, send out 8 responses myself. He does review all my responses. 9 Q Do you have authority to sign off on a LOI? 10 A I have signed LOIs. I do.not have sign power for I 1 Ezralow Retail Properties. r2 Q When you signed off on LOIs is that with Doug 13 Gray's knowledge? 14 A Yes. 15 Q So you have never acted without Doug Gray's 16 approval with respect to approval an LOI? 17 A No. 18 Q Did you review any documents in preparation for 19 your deposition today? 20 A No. 21 Q Did you, do you have the marketing package today? 22 A No. 23 Q Do you have a marketing package? 24 A In my office. 25 Q Why didn't you bring that today? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 15 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 MR. SHIPOW: We produced that. 2 MR. TUCHMAN: The marketing package? 3 MR. SHIPOW: It was produced in one of the earlier 4 ones I believe. 5 BY MR. TUCHMAN: 6 Q Is this your marketing package exhibit 137? 7 A This is a flier. 8 Q Okay. What does your marketing package look 9 like? 10 A A spiral bound color brochure. 11 Q I don't have a spiral bound color brochure. 12 MR. SHIPOW: Well, it wouldn't necessarily have 13 produced the color version,but I believe we produced a 14 copy of it. 15 MR. TUCHMAN: Well I asked for it. It's not here. 16 We'll go over the documents in a minute. 17 BY MR. TUCHMAN: 18 Q All right. Now who prepared this marketing 19 package? 20 A We had an outside company put it together. I 21 don't know who that is. 22 Q Is there a floorplan or conceptual site plan 23 incorporated into your marketing plan? 24 A There is. 25 Q Does include Burlington Coat Factory? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 16 r" ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A The conceptual plan in the marketing brochure 2 does not have Burlington's building. 3 Q Did you ever circulate a marketing plan for The 4 Crossings which included the Burlington building? 5 A Circulate to? 6 Q Prospective tenants? 7 A No. 8 Q How many of these did you disbrute, these 9 marketing plans? 10 A I don't know an exact total. 11 Q Over a hundred? 12 A Yes. 13 Q Over 200? 14 A Yes. 15 Q Over 300? 16 A Yes. 17 Q Over 500? 18 A Yes. 19 Q Over a thousand? 20 A I don't believe so. 21 Q How many did you have printed up? 22 A I believe a thousand. 23 Q ' Now, the conceptual site plan that was attached 24 as a marketing package, did it look like 137's plan there? 25 A Yes. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 17 r ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Okay. Now, do you know why, who oversaw the 2 marketing plan's production? 3 A Doug Gray. 4 Q Did you have any input in it? 5 A No. 6 Q Did you ever ask him why Burlington's store isn't 7 in there? 8 A No. 9 Q Did he ever tell you why Burlington's store isn't 10 in there? 11 A No. 12 Q When was the marketing plan actually printed up? 13 A I don't know an exact date. 14 Q It was in 1999? 15 A I don't believe so, but I don't know. 16 Q Was it in the first quarter of 2000? 17 A I don't know an exact date. 18 Q When's the first time you remember circulating 19 the spiral bound color brochure which is your marketing 20 plan? A I don't recall. 21 Q Was it in the first quarter of 2000 that you 22 distributed this? 23 A- I believe. 24 Q Were there any other printings or of was there 25 more than one printing of your marketing plan? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 18 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A I don't know. I don't handle that. 2 Q Was there more than.one marketing plan? 3 A I believe there may have been. 4 Q Did any marketing plan that you circulate -- do 5 you have those with you today, sir? 6 A I do not. 7 Q The other marketing plans that you circulated did 8 they have the conceptual site plans which are reflected in 9 137? 10 A I believe there have been changes. 11 Q And changes which including the inclusion of 12 Burlington Coat Factory? 13 A I don't believe any conceptual plan was sent out 14 Burlington was included. 15 Q What were the changes in the other conceptual 16 site plans in the other marketing packages?. 17 A There was a second deck in the center court. 18 Q Okay. 19 A Which has been removed. 20 Q And that's the only change? 21 A I believe so. Again I don't,that's not 22 something I'm intimately involved in. 23 Q I don't understand what you mean, a center deck 24 has been removed? 25 A For a second floor like a walking deck for second ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 19 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 story. 2 Q I see. But the square footage and stores 3 locations and sizes remain the same? 4 A I don't know. 5 Q Okay. 6 A I don't recall. 7 Q Who was responsible for making those changes? 8 A Doug Gray. 9 Q When prospective tenants, when you talk about 10 prospective tenants, have you spoken to any of them 11 regarding Burlington Coat Factory? 12 A People ask questions about Burlington Coat 13 Factory. 14 Q Who? 15 A Just about anybody that calls. 16 Q What do you say? 17 A I say I don't know what the status is or what's 18 going to happen. 19 Q Has anybody asked you what's going to happen to 20 their building? 21 A To whose building? 22 Q To Burlington Coat Factory's building. 23 A Yes. 24 Q What's your response? 25 A I have no idea. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 20 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Nobody has brought to your attention the fact 2 that the conceptual site plan doesn't including the 3 footprint or building of Burlington Coat Factory? 4 A Yes. 5 Q And so they have, then? 6 A They have then, what?. 7 Q They have brought that to your attention? 8 A Yes. 9 Q And you responded? 10 A It's a conceptual plan. 11 Q Has Doug Gray ever told you that Burlington Coat 12 Factory is going to be demolished? 13 A No. 14 Q Has Doug Gray asked you to contact Burlington 15 Coat Factory or any of its representatives in attempt to 16 get them to sign an LOI? 17 A No. I was told that Doug handled that himself. 18 Q Do you know why? 19 A No. 20 Q Who told him that? 21 A That told who that? 22 Q Do you know who told Doug Gray that he was 23 handling Burlington, because you said; "I was told that"? 24 A No, I was told that by Doug. 25 Q Okay. He say why? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 21 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 Q Did you talk about this deposition with Doug 3 Gray? A No. 4 Q Did he know that you were coming? 5 A Yes. 6 Q Do you know how he knew that? 7 A We have a schedule board. 8 Q Now, the, do you have a written contract with any 9 of the Ezralow entities? 10 A No. 11 Q It's a verbal agreement? 12 A Correct. 13 Q Did you make any contributions to any of the 14 persons running for city council?. 15 A Yes. 16 Q Who? 17 A I believe it was Harman. 18 Q Tom Harman? 19 A I believe so. 20 Q How much did you make to him? 21 A I believe it was $200. 22- Q And who told you to do that? 23 A Nobody. 24 Q When did you do that? 25 A I don't recall the date. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 22 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Why did you do that? 2 A Why not? 3 Q Do you like Tom Harman do you think he should-- 4 there must be a reason. 5 MR. SHIPOW: I'm going to object to these questions. 6 It's a matter of Mr. Bernard's personal voting rights and 7 personal rights to participate in government. He doesn't 8 have to answer those questions. 9 MR. TUCHMAN: I disagree with that. 10 MR. SHIPOW: Well, you can disagree. 11 MR. TUCHMAN: There is no such objection. 12 MR. SHIPOW: If you feel uncomfortable or feel that's 13 invading your privacy, you don't have to answer those 14 questions. 15 THE WITNESS: I don't want to talk about my political 16 affiliations. 17 BY MR. TUCHMAN: 18 Q Mr. Bernard, you made a political campaign 19 contribution to --you know it's public record, don't you? 20 A That's fine. 21 Q Do you know that, sir? 22 A The campaign contribution? 23 Q Yeah. 24 A I was not aware. 25 Q You mentioned that you-- what's Tom Harman ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 23 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 running for? 2 A Senate, I believe. 3 Q United States Senate? 4 A No, I don't recall. 5 Q Now, when you contributed this money to Tom 6 Harman, did you know if anybody else from your company 7 did? 8 A I have no idea. 9 Q You just did that on your own volition? 10 A I received a envelope asking for donation. 11 Q Who sent you the envelope? 12 A It came from his supportors. 13 Q It came from Tom Harman? 14 A Whoever he has asking for campaign 15 contributions. I don't know his setup. I received an 16 envelope for supportors from his campaign for 17 contribution. 18 Q Now you put cash in the envelope? 19 A No, check. 20 Q Whose check was it? 21 A My check. 22 Q Personal check? 23 A Uh-huh. 24 Q Was that a yes? 25 A Yes. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 24 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Or check from the company? 2 A No, personal check. 3 Q Did you receive the envelope at your address at 4 Rancho Cucamonga? 5 A No. 6 Q You received it over there at Irvine at the 7 Ezralow offices? 8 A Yes. 9 Q When you submitted your contribution why did you 10 put your Rancho Cucamonga address? 11 A That's my home address. 12 Q Why didn't you put the address where you got the 13 contribution? 14 MR. SHIPOW: Objection argumentative. 15 THE WITNESS: I don't understand the relevance. 16 BY MR. TUCHMAN: 17 Q Well, you made a decision to write the address, 18 your home address, as opposed to your business address? . 19 A I write my home address on a lot of things. 20 Q There was no decision one way or the other in 21 your mind, you just put your home address? 22 A Correct. 23 Q Did you tell Doug Gray you contributed to 24 Tom Harman? 25 A He knew. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 25 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Did you know if he contributed to Tom Harman? 2 A No. 3 Q Do you know if you contributed to Pamela Julien's 4 campaign? 5- A I don't believe I did. 6 Q You wrote down, did you write down that you 7 worked for Ezralow? 8 A I believe I did. 9 Q And do you know if any other people at Ezralow 10 in your office contributed? 11 A I don't know. 12 Q How many envelopes from the Tom Harman campaign 13 arrived at your office? 14 A I have no idea. I received one. 15 Q Did you or anyone else from Ezralow receive 16 envelopes from them? 17 A I have no idea. I received one. 18 Q Cristina Hughes,who is she married to? 19 A Jim Hughes. 20 Q Is Cristina Hughes a lawyer at Holland&Knight? 21 MR. SHIPOW: No, she is not, and you know she's not. 22 Move on. 23 MR. TUCHMAN: Well, according to city records she is. 24 MR. SHIPOW: She is not a lawyer at Holland. 25 MR. TUCHMAN: Okay, but I'm going to ask him. I can ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 26 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 take Ms. Hughes's depo later. 2 BY MR. TUCHMAN: _ 3 Q Cristina Hughes, she's not an attorney at Holland 4 & Knight? 5 A No. 6 Q Do you know any reason.to know why Critina Hughes 7 would say she's an attorney at Holland& Knight? 8 MR. SHIPOW: Assumes facts not in evidence, lacks 9 foundation. 10 MR. TUCHMAN: You can answer. 1.1 MR. SHIPOW: Don't guess. 12 BY MR. TUCHMAN: 13 Q Do you have any reason to believe she's an 14 attorney at Holland& Knight? 15 MR. SHIPOW: He's already answered that. 16 MR. TUCHMAN: I don't think so. 17 Do you have an answer to that question? 18 THE COURT-REPORTER: No. 19 MR. SHIPOW: Sure he has. You asked him if she is a 20 lawyer at Holland& Knight. He said, "Not that I know 21 of." Move on, Counsel. 22 MR. TUCHMAN: Did he say that? 23 (Testimony read.) 24 MR. SHIPOW: See, you have an answer. 25 MR. TUCHMAN: We're going to be here for a very long ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 27 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 time. 2 MR. SHIPOW: That's great. 3 MR. TUCHMAN: You produce stuff like this, we're going 4 to be here a lot longer. 5 MR. SHIPOW: Move on to something that's relevant, not 6 whether or not Cristina Hughes is a lawyer at Holland& 7 Knight. 8 MR. TUCHMAN: Well, I certainly want to know about 9 your firm's activities and campaign contributions. 10 MR. SHIPOW: Oh, now. You are not entitled to know my 11 firm's activities and campaign contributions. 12 MR. TUCHMAN: I disagree. 13 BY MR. TUCHMAN: 14 Q � Now, Cristina Hughes, does she work for the 15 Ezralow Company? 16 A Yes. 17 Q And what is her position with the Ezralow 18 Company? 19 A I have no idea. 20 Q Is her address at Ezralow Company 7516 Atherton 21 Lane, West Hills, California 91304? 22 A Restate the question, please. 23 Q Is Cristina Hughes's address over at Ezralow 24 7516 Atherton? 25 A That's not the business address of Ezralow ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 28 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Company. 2 Q Do you recognize that address? 3 A I do not. 4 Q Is that her address there with Mr. Hughes? 5 A I have no idea. 6 Q Do you know a man named Marc Ezralow? 7 A I do. 8 Q Who's he work for? 9 A I'd be guessing. 10 Q Does he work, have you ever seen him with the 11 Ezralow Company people? 12 A Yes. 13 Q Did you ever seen him in those offices? 14 A Yes. 15 Q Have you ever heard of Gary Freedman? 16 A Yes. 17 Q Who is Gary Freedman? 18 A Also works at Ezralow. 19 Q Have you ever heard of this address in Agoura, 20 seven-- 6055 -- it looks like Macadam, M-a-c-a-d-a-m, 21 Court? 22 A No. .23 Q That's not an Ezralow address; is that correct? 24 A That is correct. 25 Q Okay. And your address an 7507, I think ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 29 1 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Marmound? 2 A Marmande. 3 Q That's not an Ezralow address? 4 A (No audible response.) 5 Q Is that correct? 6 A That is correct. 7 Q And by the way,the address is 7516 Atherton 8 Lane. 9 Also, do you know who David Leff,that's L-e-f-f, 10 is? 11 A Seen him working in the Ezralow offices also. 12 Q Do you know what he does for them? 13 A I do not. 14 Q Do you know what Gary Freedman's position is with 15 Ezralow? 16 A I do not. 17 Q Do you know that the date you made your 18 contribution to Tom Harman, do you know what the date was 19 on that? 20 A No. 21 Q It was October 12, 2000. If I told you that 22 there were at least three or four,maybe five other people 23 from Ezralow who within a day made contributions to Tom 24 Harman and Julien, that would be a big surprise to you? 25 A Yes. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 30 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q You had no idea about that until today, I just 2 told you? 3 A No. 4 Q Okay. Now, you prepared some documents 5 responsive to the notice of deposition; is that correct? 6 A Correct. 7 Q Okay. Can you tell me where you went? 8 A My office. 9 Q Okay. Now, are all your files in your office? 10 A Yes. 11 Q Okay. Tell me what files you looked through to 12 respond to the production? 13 A The files that contain the questions you asked. 14 Q Okay. Let's take a look at the notice of 15 deposition. Take a quick break to find out what number 16 we're on. But the notice of taking deposition amended 17 notice I'll give you. Why don't you take a look at 18 those. Let's go off the record for a second. 19 (Recess taken.) 20 MR. TUCHMAN: Mark the notice of depo 330. The 21 amended notice for 331. 22 (Whereupon Plaintiff s Exhibit 330 & 331 were 23 marked for identification.) 24 BY MR. TUCHMAN: 25 Q Now, when you got together the documents, you had ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 31 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 Exhibits 330 and 331 before you? 2 MR. SHIPOW: 331 wasn't served until quite a bit after 3 that, after 330. 4 MR. TUCHMAN: But it was still timely. 5 MR. SHIPOW: I don't think it was. 6 MR. TUCHMAN: I think it was under 2025. It was hand 7 served. ` 8 BY MR. TUCHMAN: 9 Q Have you seen Exhibit 330 and 331? Yes? 10 A 330,yes. 331, this morning. 11 Q Okay. Now, where did you go in your office to 12 find documents responsive to Exhibit 330? Did you go to a 13 filing cabinet? Did you have boxes on your floor? 14 A I've got books and file cabinets. 15 Q And what are those entitled? 16 A There are no titles. 17 Q There's no labels on your files? 18 A They either say,well, it would be labeled per 19 deal. 20 Q Per? 21 A Whichever deal it may be. I've got books for 22 deals. It would say Huntington Beach, and an alphabetized 23 A through whatever, and so on. 24 Q Okay. And so it's listed by tenant? In addition 25 to the -- inside these folders are prospects, prospects ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 32 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 that died, prospects that have LOIs signed;prospects that 2 have LOI's out that are not signed, correct? 3 A Correct. 4 Q What other types of information are contained in 5 those folders? 6 MR. SHIPOW: I don't think he's testified that they 7 were folders,just so the record's clear. 8 BY MR. TUCHMAN: 9 Q There were files? 10 A No, they're books. 1 I Q I don't understand how you mean there's books. 12 A Three-ring binders. 13 Q In the three-ring binders what other types of 14 information? 15 A That's about it. 16 Q Okay. Now you mention that you provided the 17 marketing, did you provided marketing package to Mr. 18 Shipow at some point? 19 A Yes. 20 Q That was several months ago? 21 A I don't recall the date of my supplying that. 22 MR. TUCHMAN: Mr. Shipow,you're saying this came in 23 your first production of documents? 24 MR. SHIPOW: I don't recall whether it was the first 25 production, the second production or the one that you got ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 33 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 this week. 2 MR. TUCHMAN: Well, it wasn't in the one we got this 3 week. The second production you said it's all identical 4 to the first production. We didn't get any documents on 5 the second production. 6 MR. SHIPOW: To the best of my recollection not having 7 in mind each and every document that's been produced, the 8 marketing package was produced. If you think it wasn't, 9 I'll be happy to after the deposition go back, look 10 through the documents, and if it's not there, I'll find 11 another copy of it. 12 MR. TUCHMAN: I can tell you if you want to look 13 through your two folders I don't see a marketing package 14 in there, okay? 15 MR. SHIPOW: I'm not going to sit here and do it now. 16 MR. TUCHMAN: I understand that. I'll just have to 17 call you back for it. 18 BY MR. TUCHMAN: 19 Q Okay. Now-- 20 MR. SHIPOW: Of course keep in mind that the witness 21 has testified that the site plan that's in that marketing 22 plan is the one in front of you as Exhibit 137. 23 MR. TUCHMAN: If you want to ask him questions, you 24 can. I'm not going to stop that. 25 MR. SHIPOW: I'm not asking him a question. I'm ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 34 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 reminding you what his testimony was. 2 MR. TUCHMAN: Certainly you don't mean to deprive me 3 of asking him questions about the full marketing package, 4 did you? 5 MR. SHIPOW: Not at all. 6 MR. TUCHMAN: I didn't think so. 7 BY MR. TUCHMAN: 8 Q Now, Mr. Bernard, let's take a look at the 9 documents we requested on 330, okay? 10 A Uh-huh. 11 Q Number one, "Any and all documents pertaining to 12 any 'leasing opportunities' advertisements The Crossings 13 at Huntington Beach." What documents are responsive to 14 that? 15 A You're asking me to recall documents, I mean it 16 took me days to put these together. And this is not 17 something I memorized. 18 Q Let's break it down then. Did you place any ads 19 in the newspapers? 20 A No, no newspaper ads that I recall. 21 Q Any ads anywhere? 22. A I do believe there were magazine ads. 23 Q Magazine ads in what magazines? 24 A I don't recall. I don't handle that. 25 Q Who handled that? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 35 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A That would probably be Doug Gray. 2 Q How many times was the ad published? 3 A I have no idea. 4 Q Did it have a site plan in it? 5 A I don't, there may have been an ad with a site 6 plan. 7 Q Do you have a copy of that site plan, I mean a 8 copy of that magazine ad? 9 A I believe it was sent in the documents. 10 Q In the document thatyouu recently provided? I A Uh-huh. 12 Q Okay. 13 MR. SHIPOW: Yes? 14 THE WITNESS: Yes? 15 MR. SHIPOW: Well, now, you need to say yes or no as 16 opposed to uh-huh or-- 17 THE WITNESS: Excuse me. 18 BY MR. TUCHMAN: 19 Q We're going to go through of these documents. 20 Most of these are LOIs or letters prior to LOIs, but 21 they're heavily redacted. You weren't involved in 22 redacting, were you? 23 A No. 24 Q When did you provide this magazine ad to Holland 25 & Knight? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 36 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A All the documents I provided were provided at the 2 same time. 3 Q Which was when? 4 A I don't recall the date. 5 Q Last one month? 6 A I don't recall the date. 7 Q Was it this year? 8 A It was in a response to -- 9 Q -- Exhibit 330? Very good. 10 A Yes. 11 Q Now, number two, "Any and all leases entered into 12 by the Ezralow Retail Properties pertaining to The 13 Crossings at Huntington Beach." Are there.any leases? 14 A No. 15 Q So no leases were provided? 16 A Correct. 17 MR. SHIPOW: That's not correct. 18 THE WITNESS: It's not? 19 MR. SHIPOW: No executed leases. If that's what 20 you're talking about. Clarify your question. Are you 21 talking about executed? 22 BY MR. TUCHMAN: 23 Q There are unexecuted leases contained in these 24 packages; am I correct? 25 A Correct. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 37 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 Q Those are for Jillian's? 2 A Yes. 3 Q And who else? 4 A I don't recall all the tenants who are in that 5 stage. 6 Q There's also TGI. Great Indoors also has an 7 unexecuted lease in there? 8 A Yes. 9 Q We can't tell. Everything is whited out. 10 A I didn't do that, so I can't answer your 11 question. 12 Q We'll take it up with Mr. Shipow. You're right. 13 Besides Great Indoors and Jillian's, who else has 14 unexecuted leases in there? 15 A I don't recall the tenants that are at that 16 stage. 17 Q Why was there a site plan development package in 18 there pertaining to Sears and TGI? What is that? 19 A I don't know what you're referring to. 20 Q There's a document which is about 50 pages, and 21 it talks about parameters or specifications for TGI's 22 construction. Do you know what that's all about? 23 A I don't. 24 Q Is that something Doug Gray would know about? 25 A Yes. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 38 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 Q What other unexecuted leases are there? 2 A I don't know. 3 Q Now, do you know when they're going to break 4 ground out there? 5 A I've heard different days. I have no idea. 6 Q What different dates have you heard? 7 A I've heard April. 8 Q April of 2001? 9 A Yes. 10 Q You've heard other dates before, haven't you? 11 A Yes. 12 Q What other dates have you heard? 13 A I don't remember exact dates, but they were 14 earlier than April. 15 Q Did you ever hear February of 2000 you break 16 ground? 17 A I don't recall that date. 18 Q What was the earliest date you heard that ground 19 would be broken out there at Huntington Center? 20 A I believe it was sometime in 2000. I don't 21 recall the exact date. 22 Q Who told you that? 23 A Doug Gray. 24 Q Doug Gray tell, ever talk to you about Burlington 25 Coat Factory? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 39 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 Q Ever talk to you about these lawsuits? 3 A No. 4 Q Do you know there are lawsuits pending? 5 A Yes. 6 . Q How many are pending, do you know? 7 A I have no idea. ` 8 Q Do you know Burlington Coat Factory is suing 9 Huntington Center Associates and the Ezralow Company? 10 A I did know that. 11 Q When did you first learn about that? 12 A I don't know a date. Sometime last, last four or 13 five months probably. 14 Q Has anybody told you why Ezralow's being sued? 15 A No. 16 Q Do you have any independent knowledge of why 17 Ezralow's being sued? 18 A No. 19 Q You know that Burlington's upset, you know that? 20 A Obviously,yes. 21 Q Why do you say obviously? 22 A I wouldn't be sitting here if you weren't upset. 23 Q You know Burlington Coat Factory, have you ever 24 seen its lease? 25 A No. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 40 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Do you know anything about the lease terms? 2 A I do not. 3 Q Now, number 2 we talked about leases. 4 Number three, "Any and all files pertaining to 5 any and all lease inquiries pertaining to The Crossings at 6 Huntington Beach." 7 A Right. 8 Q I think that makes up the bulk of the documents 9 provided. There's a lot of letters going back and forth 10 for tenants that never came to fruition; is that correct? 11 A Yes. 12 Q All those documents you provided through Mr. 13 Shipow? 14 A Yes. 15 Q Such as they are. 16 Now, next, "Any and all documents pertaining 17 to -- evidencing intents to lease at The Crossings at 18 Huntington Beach." Those are also documents you provided 19 to Mr. Shipow? 20 A Correct. 21 Q You didn't hold back anything? 22 A No. 23 Q These are documents that are all kept in your 24 office? 25 A Correct. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 41 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Are any documents which were requested in Exhibit 2 330 kept outside your office? 3 A No. 4 Q Did you make any inquiry from anyone Ezralow or 5 at the mall or Mr. Shipow's office to find documents 6 responsive to this? 7 A No. 8 Q Okay. So you just did it from your own office? 9 A Correct. 10 Q Okay. Are you aware of any documents that are 11 responsive to Exhibit 330 that are located outside the 12 physical presence of your office? 13 A No. 14 Q The intents to lease have been produced. 15 Five, "Any and all documents pertaining to 16 Burlington Coat Factory." Do you have any documents 17 pertaining to Burlington Coat Factory? 18 A No. 19 Q By the way, have you been out at the site? 20 A Yes. 21 Q How many times? 22 A Don't have a number. 23 Q Hundreds, right? 24 A Probably not hundreds. 25 Q At least 50? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 42 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A Okay. 2 Q You've been out there with tenants; right? 3 A Yes. 4 Q You were out there with actually with Jillian's 5 client; am I right? 6 A No. 7 Q Were you out there with TGI Client? 8 A No. 9 Q What clients have you been out to the property 10 with? I I A I couldn't name out the clients I've been out to 12 the property with. 13 Q Prospective tenants, correct? 14 A Correct. 15 Q When you were out at the property,how have you 16 described what's about to happen to Burlington Coat 17 Factory? 18 A Haven't. 19 Q Nobody's asked? 20 A Yes. 21 Q What have you said? 22 A My response is always dependent on the City's 23 decision on November 20th. 24 Q What's on November 20? I'm sorry. 25 A I'm sorry? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 43 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q What's on November 20th? 2 A I am under the impression that the city's going 3 to decide either to or not to use its powers of eminent 4 domain. 5 Q Who's told you that? 6 A Well, I was at the City Council meeting. I don't 7 recall the date, in -- 8 Q October 2? 9 A I don't recall the date, but it was the night 10 they decide unanimously to negotiate with Burlington and 11 Wards. 12 Q So it's October 2 when the OPA was approved? 13 A Okay. 14 Q Do you know what an OPA is? 15 A Yes. 16 Q You do? What is that? 17 A Owner Participation Agreement., 18 Q Were you involved in any of the negotiation on 19 that? 20 A No. 21 Q Do you know who was? 22 A I don't know all the parties involved in that, 23 no. 24 Q Jim Hughes was? 25 A I would be guessing. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 44 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Okay. Douglas Gray? 2 A Yes. 3 Q Okay. Now, the clients when you go out there 4 they ask about Burlington you said what now to them? 5 A That we don't know what's happening with 6 Burlington or Wards until after the City decides what 7 direction they want to go. 8 Q Is it your testimony that Douglas Gray did not 9 tell you to submit any contributions to Tom Harman's 10 campaign? 11 A Absolutely. 12 Q Now, did you ever say to anyone that Burlington 13 Coat Factory is going to be condemned out by the City and 14 their properties would be demolished? 15 A Absolutely not. 16 Q If I have a tenant that comes forth and says 17 that,they're lying, right? 18 A Correct. 19 MR. SHIPOW: Objection. Assumes facts not in 20 evidence. Also argumentative. 21 BY MR. TUCHMAN: 22 Q In addition, have you ever said to a tenant that 23 Burlington Coat Factory may remain here? 24 A Yes. 25 Q And how many times have you said that? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 45 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A I have no idea. 2 Q Have you said it more than once? 3 A Yes. 4 Q Have you said it more than 5 times? 5 A I don't know. 6 Q Who have you said that to? 7 A I couldn't tell you. 8 Q Whose your contact person at TGI? 9 A Rick Shoemaker. 10 Q Was there anybody else you were in contact with? 11 A Brent Howell, his broker. 12 Q Is there one other person? 13 A Not that I've been in contact with. 14 Q Mr. Shoemaker,he's out of the suburbs of 15 Chicago? 16 A Yes. 17 Q Mr. Shoemaker, have you talked to him about 18 Burlington Coat Factory? 19 A No. 20 Q Talk to him about Montgomery Ward? Have you 21 talked to him about Montgomery Ward? 22 A Yes. 23 Q What have you said about Montgomery Ward to him? 24 A Again this is contemplated redevelopment. All 25 dependent which way the City wants to go. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 46 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 Q You're hoping the City condemns, right? 2 A I have no hopes. 3 Q That's what Doug Gray hopes; am I correct? 4 A I have no idea what he hopes. 5 Q Wouldn't it ruin your redevelopment or attempts 6 to lease the shopping center if Wards and Burlington 7 remain? ` 8 A Ask the question again. 9 Q Wouldn't it ruin your plans to lease up the 10 shopping mall if Wards and Burlington remain? 11 A We own the project. I'll be leasing something, 12 whether you're there or not. 13 Q Would it ruin your plans and your letters of 14 intents if Burlington were there? 15 A No. 16 Q So all the letters of intent that you have 17 signed,you can still work around the Burlington box as it 18 were? 19 A You're asking me to make a decision for tenants. 20 I have no idea. 21 Q The letters of intents that are signed, do they 22 have a specific location in mind where they're going to I 23 be? 24 A No. 25 Q They have just, can you describe what these ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 47 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 letters of intent say since they were all redacted? 2 A With respect to location, it's a mutually 3' agreeable location at a later date. 4 Q Does it describe when the commencement of the 5 lease term will be? 6 A Yes. 7 Q What is that? ` 8 A It varies from tenant to tenant, but it's 9 typically 60, 90, 120 days from delivery. 10 Q What is date of delivery? 11 A There are no dates. 12 Q Why is that? 13 A There are no dates-to be had yet. 14 Q How do you explain this in your LOI if at all? 15 A There is no explanation. 16 Q Do you give them a verbal explanation that we 17 can't give you a date to deliver it? 18 A This is not inconsistent with any other deal I 19 do. 20 Q, Okay. 21 A Early in negotiations specific dates are not 22 always readily available. 23 Q Would you describe LOIs as non-binding? 24 A Yes. 25 Q Now, you say 60 to 90 to 120 days after what now? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 48 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A Delivery. 2 Q Date of delivery. And date of delivery is what 3 now? What does that mean? 4 A When we turn over their space to them. That time 5 period is so they can fixturize. 6 Q You said fixturize? 7 A Uh-huh. 8 MR. SHIPOW: Yes? 9 THE WITNESS: Yes, sorry. 10 BY MR. TUCHMAN: 11 Q Now, how many LOIs, of the LOIs that you have, 12 you mentioned earlier a number of them. Approximately how 13 many square feet does this account for on an LOI? 14 A I have no idea. 15 Q More than a hundred thousand? 16 A I would suspect that is the case. 17 Q Well, TGI itself is 130 thousand square foot? 18 A I believe 140 thousand square feet. 19 Q How many square feet for this Jillian's outfit? 20 A Their approximate square footage is 67,000. 21 Q 67 thousand square feet? 22 A Uh-huh, yes. 23 Q You got to watch the uh-huhs. 24 A Yes. 25 Q Rubio's how many square feet? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 49 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A 2000. 2 Q Pizzarito? 3 A I don't recall. 4 Q Less than 2000? 5 A Yes. 6 Q Pasta Bravo? 7 A Less than 2000. , 8 Q Subway? 9 A A thousand. 10 Q Beaucoup Di Pepe (sic)? 11 MR. SHIPOW: Not even close. Go ahead. 12 THE WITNESS: Oh,his pronunciation you were saying? 13 MR. SHIPOW: Yeah. 14 THE WITNESS: It's over 7 thousand. I don't recall. 15 MR. TUCHMAN: Exactly. 16 BY MR. TUCHMAN: 17 Q CPK? 18 A 5 thousand. 19 Q There's something called,maybe it's the same 20 thing called Beaucoup Di Pepe or Poza? All right. Never 21 mind that one. Cost Plus? 22 A 18 thousand. 23 Q And Islands? 24 A 5,500. 25 Q Ruth's Chris? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 50 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A 9 thousand. 2 Q That's a big restaurant. 3 A Yes, it is. 4 Q You mentioned that, was it Skaters or Slaters? 5 Shakers? The restaurant between Ruth's Chris and 6 Elephant Bar. Some, oh, Ruth's Chris Steakhouse. 7 Elephant Bar? , 8 A Over 7 thousand. 9 Q Some type of creamery, Coldstone? 10 A Under 1500. 11 Q Clothestime? 12 A It's over 2000. I don't recall. 13 Q That's a small store? 14 A Yes, it is. 15 Q Huntington Surf& Sport? 16 A It's 5,000 or slightly larger. I don't recall. 17 Q Okay. And no other LOIs signed; is that correct? 18 A I don't know. I don't recall. 19 Q Now, the LOI of Old Navy is outstanding, correct? 20 A Correct. 21 Q and Elm Street? 22 A Correct. 23 Q How many square feet for Old Navy? 24 A 12 thousand. 25 Q How many proposed for William Sonoma outfit, Elm ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 51 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Street? 2 A I believe approximately 30,000. 3 Q Theaters, you have them out for Century, 4 Edwards, Kakorian , Pacific. One, only one's going to get 5 the LOI; am I correct? 6 A Yeah I'd like to step back. You said you have 7 them out. When you ask that question, you asked who are 8 you courting. I don't have LOIs for all those tenants. 9 Q Who do you have LOIs for? 10 A I believe Edwards. 11 MR. SHIPOW: These are unsigned LOIs? 12 THE WITNESS: There are no signed LOIs for the 13 theaters. Edwards, Century, and I believe that's it. 14 BY MR. TUCHMAN: 15 Q You're only going to put in one set of theaters, 16 correct? 17 A Correct. 18 Q How many? 19 A How many what? 20 Q Theaters? 21 A One operator. 22 Q But how many theaters? 23 A Oh, don't know. 24 Q What type of square footage? 25 A Between 80 and 90 thousand square feet probably. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 52 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q AMC, that operation you proposed how many square 2 feet for them? 3 A I don't recall. 4 Q Why did AMC deal fall through? 5 A They're not financially viable in our opinion. 6 Q Now any other LOIs that are unsigned that you can 7 identify? , 8 A I have recalled all that I can. 9 Q Let's go back to information on the LOI. That 10 does not include a beginning date; is that correct? 11 A Uh-huh, that is correct. 12 Q It includes square footage? 13 A Approximate square footage. 14 Q Does it talk about lease term in terms of how 15 much time they will be there? 16 A Yes. 17 Q Does it talk about deposit,how much money has 18 to be up front? 19 A No. 20 Q Does it talk about the dollar amount per square 21 foot that will be paid? 22 A Yes. 23 Q Does it talk about tenant improvements? 24 A Not in all cases. 25 Q Does it talk about declaration and the type of ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 53 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 interior decorating that will be done? 2 A No. 3 Q Does it talk about any type of contingency 4 relative to type of conceptual plans that will be approved 5 ultimately? 6 A I believe there are in some, not in all. 7 Q Which ones? 8 A I don't recall. 9 Q Well, certainly TGI, correct? 10 A I believe so, yes. 11 Q Conceptual planning contingencies,that has to do 12 with the future actions of the redevelopment agency, 13 correct? 14 A I think, I would be guessing. I don't know. 15 Q Now, these contingencies,they do pertain to how 16 the ultimate physical description and layout of the 17 property will be? 18 A Yes. 19 Q Okay. And how many of those LOIs contain 20 information on contingency relative to what type of 21 physical layout there will be? 22 A I don't know. 23 Q More than one? 24 A Yes. 25 Q More than 5? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 54 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 A I don't know. 2 Q Am I correct that if you're talking about a store 3 that's fairly large, meaning over 7 thousand square feet, 4 these contingencies will be included? 5 A I don't know. 6 Q Is there some guideline or policy that you're 7 running by figuring, where you figure you need to include 8 some type of conditional language which lets the 9 prospective tenants know that the layout may change? 10 A That would probably be passed the LOI stage, not 11 up to me,but up to my attorney. 12 Q Who's your attorney? .13 A On Huntington Beach it's Bruce Stuart at 14 Stradling, Yoca. 15 Q What does he do for you? He does the leasing 16 stuff? 17 A He handles the lease negotiations. Although Jim 18 Hughes will also handle some,so we have 2 attorneys. 19 Q Under what circumstances do you bring Jim Hughes 20 into the picture? 21 A That's not my decision. 22. Q Whose decision is it? 23 A Doug Gray. 24 Q Now, when you, have you ever sent out conceptual 25 site plans or site plans to a prospective tenant whereby ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 55 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 the Burlington Coat Factory and its structure remains 2 intact? 3 MR. SHIPOW: Objection ambiguous. 4 BY MR. TUCHMAN: 5 Q You can answer. 6 MR. SHIPOW: You can answer, if you understand it. 7 THE WITNESS: I don't know, because of the word 8 "ever." 9 BY MR. TUCHMAN: 10 Q Okay. So you think you did it once? 11 A It's possible. 12 Q Who did you send it to? 13 A I don't know. 14 Q You think you did that more than 5 times? 15 A I don't know. 16 Q Okay. Do you understand my question, Mr. 17 Bernard? My question is as follows, we have Exhibit 137 18 which is the conceptual site plan, a slick; am I correct? 19 A You're correct. 20 Q Did you ever produce a slick like 137 which had 21 Burlington Coat Factory within the promotional material? i 22 A No. 23 Q Did you ever circulate to anyone a slick or 24 conceptual site plan which included Burlington Coat 25 Factory in its present condition? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 56 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 Q Now, have you ever told any prospective tenants 3 that it is possible that the Burlington Coat Factory box 4 will remain? 5 A Yes. 6 Q And how many times have you said that? 7 A I don't know. 8 Q Now, we're trying to get away from the big box, 9 that's the new thing; am I right? 10 A Who is? 11 Q Retail industry? 12 A I don't know that to be true. 13 Q Well,the real estate industry is anti-big box, 14 have you ever heard that? 15 A No, I have not. 16 Q So it's pro big box then? 17 A I haven't heard a stance one way or the other. 18 Q Do you know what a big box is? 19 A Of course. 20 Q What's a big box? 21 A Large tenant, probably 50,000 square feet or 22 larger. 23 Q You would describe Burlington Coat Factory as a 24 big box? 25 A In their state in this development, yes. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 57 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Okay. And would you describe Montgomery Ward as 2 a big box? 3 A Yes.. 4 Q Why is Mervyn's staying? 5 A I have no idea. 6 Q Now, how much per square foot are you charging 7 TGI? 8 MR. SHIPOW: Objection calls for proprietary 9 information. Instruct the witness not to answer. 10 BY MR. TUCHMAN: 11 Q How much are you charging any of the tenants? 12 MR. SHIPOW: Objection. Same objection, same 13 instruction. 14 BY MR. TUCHMAN: 15 Q Are the leases all either gross or triple net? 16 MR. SHIPOW: Objection. Same objection. 17 BY MR. TUCHMAN: 18 Q I think you can answer that one. 19 MR. SHIPOW: No, I am not letting him go into any of 20 the monetary lease terms. 21 BY MR. TUCHMAN: 22 Q Did the LOI exclusively deal with monetary terms? 23 A I don't understand your question. 24 Q Well, the LOIs, how many pages are they commonly? 25 A Three. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 58 1 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 Q Three pages? Do all three pages deal with 2 monetary terms, how much they're going to pay? 3 A It's one section. 4 Q Okay. What are all the other sections? 5 A I don't recall off the top of my head. Term, 6 commencement,tenant, lease form, broker protection. 7 Q What else? 8 A Signage, economic, obviously. 9 Q I don't understand that. 10 A What they're going to pay. 11 Q Okay. Anything else? 12 A I'm sure,but I'm not looking at the document, 13 so. 14 Q I can show them to you, but it won't help. Okay 15 now, they're blank. The LOIs, the LOIs that have been. 16 turned in circulated whether signed or unsigned, do they 17 have conceptual site plans or site plans with them? 18 A Attached? 19 Q Yes. 20 A No. 21 Q Up in your office do you have a picture or site 22 plan up of the Huntington Center? 23 A Yes. 24. Q And do you have one with Burlington Coat Factory 25 up in it? , ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 59 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 Q Do you have one that's like 137, correct? 3 A Correct. 4 Q Okay. And do you fill in any names in any of the 5 places? 6 A No. 7 Q Have you ever had a conceptual site plan where 8 you filled in the name of a tenant? 9 MR. SHIPOW: On this project? 10 MR. TUCHMAN: Sure. 11 THE WITNESS: I don't know. 12 BY MR. TUCHMAN: 13 Q Have you ever seen anybody do that? 14 A No. 15 Q Have you ever seen Doug Gray do that? 16 A Not that I recall. 17 Q Have you ever seen Doug Gray or you ever talk to 18 Doug Gray about a letter or document which identified in a 19 conceptual site plan like 137 where a specific tenant was 20 going into? 21 A Yes. 22 Q Who? 23 A Great Indoors. 24 Q Where are they going? 25 A Under a conceptual plan? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 60 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Conceptual is a real good word these days. 2 Whatever plan. 3 A It's all conceptual until we know what we're 4 doing. 5 Q Besides Great Indoors anything else? 6 A Not that I recall. 7 Q Where is Great Indoors going? 8 A On a conceptual plan? 9 Q Yes. 10 A Approximately where Montgomery Wards's building 11 sits. 12 Q Do you know if Montgomery Wards in a best case 13 scenario, Wards is condemned out, is Wards going to be 14 demolished? 15 MR. SHIPOW: Objection. Argumentative as to best case 16 scenario. 17 MR. TUCHMAN: Best case scenario for Ezralow,you're 18 right. 19 BY MR. TUCHMAN: 20 Q Can you answer that question? 21 A I don't know that I understand your question. 22 Q Does the developer Ezralow, your boss, do they 1 23 want to raze the structure or rework it? 24 A I have no idea. 25 Q Has anybody told you? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 61 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 Q Okay. Were you instructed to find anew anchor 3 or other tenant for Montgomery Ward? 4 A No. 5 Q Did you ever hear anything like that? 6 A No. 7 Q Do you know why Ezralow doesn't want Montgomery 8 Ward in the center? 9 MR. SHIPOW: Objection. Assumes facts not in 10 evidence, argumentative. 11 Don't guess. Don't speculate as to one way or 12 the other. 13 THE WITNESS: I couldn't. 14 BY MR. TUCHMAN: 15 Q Do you know Montgomery Ward owns their own land? 16 A I do know that. 17 Q Do you know how many acres they own? 18 A 13. 19 Q 13 acres out there. What have you said to 20 prospective tenants about Montgomery Ward, whether it's 2 Y staying? 22 A Same thing. We don't know until we're given some 23 direction and decide what the City is going to do or wants 24 to do. 25 Q Did you know that Tom Hannan is one of the people ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT"* * 62 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 that's going to be involved in making decision maybe on 2 November 20? 3 A He is a City Council member. 4 Q Did you know that? 5 A Yes. 6 Q When you contributed your $200 to him, you knew 7 that also, right? ` 8 A Yes. 9 Q Did you have any discussions with the City or the 10 agency regarding an appropriate tenant for Montgomery 11 Ward's parcel? 12 A No. 13 Q Did you ever meet Mr. Biggs? 14 A I have met Mr. Biggs. 15 Q David Biggs. He's from the which department now? 16 A I don't know exactly. 17 Q Is he the mayor? 18 A No. 19 Q You haven't met the mayor on this have you? 20 A I never met anyone on this. I've met people. I 21 don't partake in meetings with the City. 22 Q Okay. But did you meet Mr. Biggs? 23 A I have met Mr. Biggs. 24 Q You met him at the council meetings? 25 A No. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 63 i ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 Q When did you meet him? 2 A I met him at a broker function in Huntington 3 Beach at Pierside Pavillion. I saw him again last 4 Wednesday at an ICSC function. I know there's at least 5 one other time I've shaken hands with him. I don't recall 6 what that is. 7 Q Have you ever had discussions with him regarding 8 the Huntington Center? 9 A No. 10 Q Do you know who Gus Duran is? 11 A I've heard the name. 12 Q Have you ever spoken to him? 13 A Not that I recall. 14 Q Have you ever spoken to any city or agency 15 official employee or contractor regarding the development 16 of Huntington Center? 17 A Jim Lam to my recollection. 18 Q He works-for Biggs? 19 A I believe so. 20 Q What did you talk to him about? 21 A He wanted to know if Circuit City was moving to 22 Westminster. 23 Q Are they? 24 A I don't know. 25 Q Who's your contact at Circuit City? ***THIS IS AN UNEDITED,.UNCERTIFIED TRANSCRIPT*** 64 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A Scott Godino. 2 Q How do you spell his last name? 3 A G-o-d-i-n-o. 4 Q What's the current status of Circuit City? 5 A They have a lease on the project that expires 6 next year. 7 Q Have you offered to buy that lease out? 8 A No. 9 Q Was there an offer letter that was sent to buy 10 the lease out? 11 A I don't know. Not from me. 12 Q Do you know if they're going to be moving to the 13 city of Westminster? 14 A I don't know. 15 Q Have you leased out the space next to Circuit 16 City,the old Wells Fargo space? 17 A No. 18 Q Still empty? 19 A Yes. 20 Q What's that? 20 thousand square feet? 21 A I have no idea. 22 Q Have you tried to lease it out? 23 A No. 24 Q Why not? 25 A It's got holes in the roof. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 65 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q That can be fixed, right? How many square feet 2 is Circuit City? 35 thousand? 3 A No, Circuit City I believe is in the 20s. 4 Q .Usually a little more than that? 5 A Usually their store is more than that. I believe 6 this store is in the 20s. 7 Q Circuit City expressed they want to move to 8 Westminster? 9 A Scott Godino has told me they have negotiated, 10 have been negotiating in Westminster. 11 Q Do you know if that's been concluded? 12 A . I know it has not been. 13 Q You know the City of Westminster is courting 14 them? 15 A Yes I do. 16 Q Do you know the name of the person in Westminster 17 courting them? 18 A I do not. 19 Q You guys want to keep Circuit City? 20 A If we can, I guess. 21 Q Well, it's a good tenant for you, isn't it? 22 A It's a good tenant. 23 Q Do you have a backup plan in case Circuit City 24 does move? 25 A I have a building to lease. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 66 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q For? What does that mean, building to lease? 2 A I have empty space. 3 Q Now, how many potential anchor tenants or 4 big box tenants have you talked to who are interested in 5 the Montgomery Ward building? 6 A Three. 7 Q Who are they? 8 A Great Indoors, Costco, and Home Base. 9 Q Now, we know what's happening with Great Indoors, 10 they have a signed LOI? 11 A Uh-huh. 12 Q Yes? 13 A Yes. 14 Q Does Costco have a signed LOI? 15 A No. 16 Q What happened with Costco? 17 A Discussions didn't go anywhere. 18 Q Who was your contact person at Costco? 19 A A broker. I don't recall his name. 20 Q Local broker? 21 A Los Angeles I believe. 22 Q Was it Marcus Milchap? 23 A No. 24 Q Was it Sperry? 25 A No. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 67 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Now, was it one of the bigger ones? 2 A I honestly don't remember what company he was 3 with. 4 Q What happened with Costco? Why didn't it go 5 forth? 6 A I don't recall. 7 Q Is Costco high-end? 8 A Costco is for all intents and purposes a grocery 9 store. 10 Q Okay. Is that good or bad for this project? 11 A I don't make those decisions. I couldn't tell 12 you. 13 Q Have you told people this is a high-end project, 14 a medium-end project? What have you described this mall 15 as? 16 A I've described the conceptual plan as an 17 upper-end retail development. 18 Q Are there any tenants that you don't want there, 19 types of tenants, like gyms, markets? 20 A Me personally, no. 21 Q Have you been instructed not to have certain 22 types of tenants there? 23 A I was instructed to contact all tenants. 24 Q Have you ever contacted any gyms? 25 A I been in discussion with gyms. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 68 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Which ones? 2 A LA Fitness, 24 Hour and Bodies in Motion. 3 Q Were those approved by Ezralow or not? 4 A No. 5 Q Do you know why not? 6 A I was told parking. 7 Q Parking, too much parking,they stay there too 8 long? 9 A I was told it was a parking issue, not why. 10 Q Now, would you describe this as a regional mall 11 the concept that's been floated? 12 A The concept,who's, this concept? 13 Q Yes, 137? 14 A A regional mall? 15 Q Yes. 16 A I personally wouldn't consider it a mall. 17 Q Okay. Bad word these days? 18 A I don't know it's a bad word. There's a lot of 19 successful malls. Not what this conceptual plan is. 20 Q Costco is coming to the City; am I right? 21 A I don't know. 22 Q Did you ever read the paper on that? 23 A No, I didn't. 24 Q What was the major breaking point with Costco? 25 A We just stopped talking. I don't know there was ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 69 0 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 a break making point or not. 2 Q They wanted to take over the Montgomery Ward 3 building? 4 A That's what they told me. 5 Q Okay. Was there ever a price discussed? 6 A I don't believe so. 7 Q You mentioned, did you tell me the name of, it 8 was a broker. Did you deal with anyone directly at 9 Costco? 10 A No. 11 Q Home Base, who did you deal with over there? 12 A Dave Weigal. 13 Q You have to spell that one. 14 A I believe it's W-e-i-g-a-I, but I'm not 15 positive. He's no longer there. 16 Q When did you have these discussions with Home 17 Base? 18 A They contacted us shortly after we bought it in 19 1999. 20 Q What did they say to you? 21 A We want space. 22 Q And they said we want the Ward space? 23 A We want to go where Wards is. 24 Q Did they say why they wanted to go where Wards 25 is? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 70 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A In their opinion, Wards was not going to be a 2 going concern. When they left, they wanted the space. 3 But that was not our initiation. It was Home Base's 4 initiation. 5 Q Did it come down to anything in writing? 6 A I don't believe so. 7 Q How long did the discussions with Home Base last, 8 a month? 2 months? 9 A Briefly, a month maybe. 10 Q When did the Costco contacts, when were they 11 alive? 12 A I honestly don't recall. They contacted us also. 13 Q In the year 2000? 14 A I don't know. 15 Q Now the TGI, Great Indoors, you approached them, 16 correct? 17 A I was working with CB Commercial who had this 18 conceptual plan. They contacted me about the concept. 19 Q I see. And they contacted you about taking over 20 the Wards space? 21 A They contacted us about the site. 22 Q And whose idea was it for TGI to go into the 23 Wards space? 24 A No idea. 25 Q That wasn't your suggestion? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 71 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 Q You said something, you said CB Commercial, is 3 that Caldwell Banker? 4 A No CB Commercial. CB Richard Ellis. 5 Q They're the broker for TGI? 6 A Correct. 7 Q Now, it says on 137 here it says Ezralow Retail 8 Properties. For leasing opportunities, contact Paul C. . 9 Bernard, vice president. You're vice president of what? 10 A That was the title I was given when I came on 11 board. 12 Q You're vice president of Ezralow Retail 13 Properties? 14 A That's a title I have,yes. 15 Q Are you the vice president of Ezralow Retail 16 Properties? 17 A It's a title. 18 Q I'll take that as yes. There is your phone 19 number and fax number at your office there in Irvine, 20 correct? 21 A Correct. 22 Q Okay. By the way, who developed this? Who 23 prepared exhibit 137? 24 A Doug and an outside company who I don't know who 25 that was. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 72 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q You don't remember the name of the company? 2 A I don't know. I don't think I ever got involved 3 with it. 4 Q This was passed out at that May 2000 show in 5 Vegas, right? '6 A Yes. 7 Q You were at that show? 8 A Yes. 9 Q You had a big poster with your name on it, right? 10 A I don't recall a big poster with my name on it. 11 Q Okay. Did you get any contacts there while you 12 were at Vegas? 13 A Of course. 14 Q Did you make any representations to anybody who 15 visited you at the Huntington Beach booth about 16 Burlington? 17 A I was not at the Huntington Beach booth. 18. Q Which booth were you at? 19 A We had an Ezralow Retail Properties booth. 20 Q When you were at your booth, did you make any 21 comments to anybody about what is going to happen with,to 22 Burlington? 23 A No. 24 Q Did anybody ask you? 25 A Yes. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 73 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Do you know what you said? 2 A Same answer, the decision has not been made. 3 Q This says, "A retailer's dream. The Crossings 4 will feature more than 700,000 square feet of high-end 5 retailers, exquisite restaurants and a 5,000-seat movie 6 threater." Is there going to be a.5,000-seat movie 7 theater? 8 A I would suspect it would be smaller than 5,000 9 seats. 10 Q 1200? 11 A No, it will be larger than that. 12 Q What would it be now? 13 A I'm not in the theater industry, but in 85,000 14 feet that would traditionally be about 4,000 seats. 15 Q Now,but there's going to be, it's going to be 16 the theaters will be split up, not going to be one theater 17 with 5,000 seats, right? 18 MR. SHIPOW: He just testified it's not going to be 19 5,000, anyway. 20 BY MR. TUCHMAN: 21 Q Let's take your 4,000. It's going to be broken 22 up, correct? 23 A To a different theater, yes. 24 Q Then would you say that Subway and Pizzarito are 25 exquisite restaurants? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 74 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A If you ask them, I think they would say yes. 2 Q But I'm asking you. 3 A That's not where I would go for an exquisite 4 dinner, no. I woulder go to Ruth's Chris. 5 Q Any other exquisite restaurants besides Ruth's 6 Chris? 7 A Buca Di Beppo. 8 Q Anybody else? 9 A I believe that Jillian's has some very nice 10 restaurant concepts inside. 11 Q What about Pasta Bravo, is that an exquisite 12 restaurant? 13 A It's a quick-service restaurant. 14 Q Quick service? Fast food,you mean? 15 A No, quick service. 16 Q What about Rubio's? Is that an exquisite 17 restaurant? 18 A Quick service. 19 Q Elephant Bar, is that exquisite? 20 A You're asking me? 21 Q Yeah. 22 A It's a good restaurant. 23 Q And Islands, that's exquisite? 24 A It's a good restaurant. 25 Q Cost Plus, would you describe that as high-end? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 75 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 A They do definitely have high-end merchandise. 2 Q Would you describe the store as high-end? 3 A The stores I've been in have a very nice feel, 4 yeah. 5 Q Okay. Now, 700,000 square feet of high-end 6 retailers. Do you have, as we speak, 700,000 square feet 7 of high-end retailers signed up? 8 A- No. 9 Q Do you know who did the demographics on this? 10 A We have a computer program. 11 Q And that's, you meaning Ezralow, correct? 12 A Ezralow Retail Properties has a computer program. 13 Q It says construction begins in September 2000. 14 A That didn't happen, did it? 15 Q No. Whose time table was that? 16 A I have no idea. 17 Q That wasn't yours, was it? 18 A No. 19 Q Now, charming cobblestone. It says, "Admire the 20 Renaissance architecture and visionary works of art by 21 world renowned artist Gil Bruvel," B-r-u-v-e-1. Is he 22 under contract? 23 A It's Gil. And I don't know if he's under 24 contract. 25 Q Has he been in the office? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 76 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. He's not been in my office. 2 Q Have you ever seen the guy at Ezralow? 3 A No. 4 Q Why does it say that in there? 5 A I have no idea. 6 Q Do you know if it's true or false about Gil 7 Bruvel? 8 A Read the statement again,please. 9 Q "Still others simply relax and listen to the play 10 of water in the fountains or admire the Renaissance 11 architecture and visionary works of art by world renowned 12 artist Gil Bruvel." 13 A I know that he has been contacted to do works of 14 art for the project. 15 Q Has he done any, do you know? 16 A I don't know. 17 Q Have you seen any designs? 18 A I have not. 19 Q Have you shown them to any prospective tenants? 20 A I have not. 21 Q Do you use it as a selling point? 22 A Use what? The art or that fact? 23 Q The art. 24 A No. 25 Q Have you told anybody that Gil Bruvel's going to ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 77 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 be out there? 2 A That's not something that is of great interest to 3 me. I don't deal with the artist. 4 Q Now, the numbers, by the way, these are based on 5 2003 projections. Do you know why you used 2003 6 projections? 7 A The project was going to be closer to that 8 opening to that date than it was the current date in our 9 demographics program. 10 Q That's looking right. Okay. Thank you. 11 When did your leasing activities begin? 12 A I would say initial contacts with tenants began 13 shortly prior to our closing escrow which I think was in 14 late '99. 15 Q November 16th, 1999. Does that sound right? 16 A Okay. 17 Q You started doing your workup in September of 18 '99? 19 A Probably sometime shortly before that. 20 Q Okay. Before September'99? 21 A I don't recall exact dates. 22 Q Now, you were still working at Sperry before 23 September '99, right? 24 A No. 25 Q When did you come to Ezralow? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 78 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 A Very beginning of'99. 2 Q Because you were working on this Monterey project 3 too, Monterey Park? 4 A Correct. 5 Q What did Doug Gray first say to you about the 6 Huntington Center, what he wanted you to do? 7 A Go find tenants. 8 Q He told you we didn't own it yet? 9 A Pardon me? 10 Q He told you we didn't own it yet? 11 A Who's "we"? 12 Q Ezralow. 13 A Yeah. 14 Q How did you get along with Doug Gray? - 15 A Very well. 16 Q He's a nice guy,very personable? 17 A Yes. 18 Q People like to talk to him; am I right about 19 that? 20 A That might be up for debate. Some people like to 21 talk to him. Some people don't. 22 Q Who doesn't like to talk to him at Ezralow? 23 A At Ezralow? 24 Q Yeah. 25 A I don't know of anybody who doesn't like to talk ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 79 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 to him. 2 Q Did he ever get in a dispute with Scott Dinovitz? 3 A No. 4 Q Did you ever speak to Scott Dinovitz about the 5 Specific Plan being taken away? 6 A No. 7 Q Do you know about the specific plan? 8 A I know about the specific plan. 9 Q Do you know what the purpose of the specific plan 10 is? 11 A My minimal understanding of the Specific Plan is 12 for design elements and types of materials. But beyond 13 that, I don't know anything about it. 14 Q Did you hear something at one of the City Council 15 meetings that one of the conceptual site plans include a 16 foot plan of Montgomery Ward and designated as such? 17 A No. 18 Q You haven't seen anything in the office? 19 A The only, I've been to two City Council meetings. 20 One was early on. One was the last one you referred to 21 today,the date I don't recall. 22 Q October 2, 2000. You haven't circulated 23 materials which had conceptual site plans or drawings 24 which show Wards in its present place and designated as 25 Wards? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 80 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A I don't believe that to be true. 2 Q You have? 3 A I don't recall, but it is, I'm guessing but it is 4 possible. 5 MR. SHIPOW: Don't guess. 6 THE WITNESS: Okay. I don't know. 7 BY MR. TUCHMAN: 8 Q You don't know? It's not something you commonly 9 do -- 10 A No. 11 Q -- is shoot out a marketing package or something 12 with Wards on it? 13 MR. SHIPOW: Make sure you let him ask the question 14 then answer. 15 THE WITNESS: This conceptual plan has been in the 16 ringed binder from the beginning, from the day that 17 marketing package was done. 18 BY MR. TUCHMAN: 19 Q Yup? . 20 A There's not been a change to the materials sent. 21 Q Okay. Have you, I understand that. And that 22 could be around 500 marketing packages, correct? 23 A Probably somewhere around that. 24 Q Have you ever sent to any prospective tenants a 25 footprint of the mall showing Montgomery Ward in its ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 81 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 present site and designated as Ward? 2 A I don't know for sure. 3 Q Okay. So it's possible you did one or two times? 4 A It's possible. 5 Q But not something you normally do? 6 A Correct. 7 Q Okay. 8 MR. SHIPOW: Why don't we take a break. 9 MR. TUCHMAN: Okay. 10 (Recess taken.) 11 BY MR. TUCHMAN: 12 Q Have you ever been advised that Montgomery Ward 13 would be condemned out? 14 A No. 15 Q Do you know if they're going to be condemned out? 16 A No. 17 Q Are you aware of Doug Gray having meetings with 18 any members of the City Council? 19 A No. 20 Q Are you aware of Doug Gray having any meetings 21 with anybody from the Planning Commission, one on one or 22 two on two? 23 A I don't keep Doug's schedule, no. 24 Q Who does keep his schedule? 25 A I believe he keeps his own schedule. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 82 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Do any of the letters of intent require delivery 2 of any applicable premises? 3 A I don't understand the question. 4 Q Do any of the letters of intent specify a date of 5 delivery of the premises? 6 A I don't believe so. I don't know for sure. 7 Q Do you know when HCA became designated as the 8 redeveloper of the property? 9 A No. 10 Q When you had conversations with the Great 11 Indoors, what have you stated regarding the movement of 12 Montgomery Wards? 13 A Dependent on what the city decides to do with the 14 site. 15 Q Did you say you'll relocate Montgomery Wards 16 within the site so that they're out altogether? 17 A I didn't ever sigh either thing. 18 Q Did you say Montgomery Wards that definitely not 19 going to be there? 20 A I did not say that. 21 Q Is Great Indoors aware that Montgomery Ward may 22 remain? 23 A Yes. 24 Q Have you had any conversations with the City or 25 the agency to expedite the entitlings for the ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 83 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 redevelopment project and condemnation of Montgomery Ward? 2 A No. 3 Q Have any site plans, drawings, renderings or 4 other plans been prepared by HCA or any new tenant with 5 respect to the redevelopment of Huntington Center on any 6 particular space by any new tenant? 7 A Could you rephrase it or state it again? 8 Q Have there been any site plans or drawings or 9 renderings which you have seen which shows the placement 10 of the specific tenant? 11 A No, not to my recollection. 12 Q Do you have site plans or renderings that you 13 have shown prospective tenants other than Exhibit 137 or a 14 blowup of 137? 15 A The materials in the marketing package are 16 different,there are additional materials in the marketing 17 package from 137? 18 . Q And what's in the marketing package is what you 19 have sent to prospective tenants? 20 A Correct. 21 Q Obviously we're going to go another day with you 22 and we're going to need you to bring the marketing 23 package. That is an important document we'll have to go 24 over with you, okay? 25 A Fine. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 84 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 MR. SHIPOW: If it hasn't in fact been produced, it 2 will be produced. It's not being withheld. It's possible 3 it was missed in our photocopying process. I'll check 4 that when we get back to the office. 5 BY MR. TUCHMAN: 6 Q Besides the marketing package that we're going to 7 see, what other materials have been prepared to track new 8 tenants to Huntington Center? 9 A This slick. 10 Q Exhibit 137. What else? 11 A Correct. I believe that's everything I've 12 provided to tenants to get tenant interest. 13. Q Have you prepared any mailers? 14 A Yes. 15 Q What do the mailers look like? 16 A They're the slick. 17 Q The slick is the mailer? 18 A It goes into an envelope, but it is the mailer. 19 Q I have in the previous production, I have HCA 20 00001. It says tenant marketing package. And I want to 21 make sure that this is it. I'll take it out of the clip. 22 Please tell me. This is just paper. There's no 23 color spirals. Is this the tenant marketing package? 24 A This is not the current marketing package. This 25 is a marketing package prior to the development of the ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 85 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 spiral marketing package. This was a first run. This was 2 disseminated to get tenant interest. 3 Q It was only disseminated towards the end of'99; 4 am I correct? 5 A I don't know the exact dates, but that sounds 6 like it could be right. 7 Q This isn't the one that was mass mailed out, this 8 was an initial one? 9 A Well,to define mass mailing, there were a number 10 of these sent out. 11 Q Okay. 12 A I don't know the number. But it was probably -- 13 MR. TUCHMAN: I want to identify it as Exhibit 332 is 14 the old marketing package. And that has numbers HCA 1 15 through 18. And you've going to get us the one that's 16 being used; right, Mr. Shipow? 17 MR. SHIPOW: Yes. 18 MR. TUCHMAN: I'm going to mark that is Exhibit 332. 19 (Whereupon Plaintiffs Exhibit 332 was marked for 20 identification.) 21 BY MR. TUCHMAN: 22 Q . Do you know how many of these exhibits,these 23 tenant marketing packages were used? 24 A I have no idea. 25 Q The updated one, there are many times more of the ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 86 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 updated one that were circulated than this one, 332? 2 A Yes. 3 Q This one is a very early one as I understand it? 4 A Yes. 5 Q Now, in fact the Great Indoors, they did not get 6 a 332, they got a subsequent version? 7 A I believe that is true. It is possible their 8 broker has both, but I don't know for a fact. 9 Q Who's their broker? 10 A Brent Howell, CB Richard Ellis. 11 Q Now, the conceptual site plan which was attached 12 to the early marketing package looks, is not even, it 13 looks like a precursor to 137; am I right or wrong on 14 that? A That is correct. This is the deck 15 that I was talking about. 16 Q Right. 17 A Which goes right there. 18 Q That has now been eliminated? 19 A On this plan it does not exist. 20 Q I see. In other words,this plan is older than 21 137? 22 A That is correct. 23 Q Okay. Now, on this conceptual site plan which is 24 earlier than 137 and was circulated,this was not, this 25 did not show Burlington Coat Factory's structure or ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 87 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 tenancy? 2 A The plan you're showing me now does not have 3 Burlington's building on it. 4 Q That was part 332. After the conceptual site 5 plan that was part of 332, the next version of it was 137; 6 is that fair to say or not fair to say? 7 A I don't recall if there was an interim plan that 8 went out. I don't believe there was, but. 9 Q Okay. Is 137 now current as to what you're 10 marketing to prospective tenants? 11 A Again,this is the document that's in the spiral 12 folder that hasn't been changed. This is still what's 13 being sent. 14 Q The slick matches the current marketing package? 15 A Yes. 16 Q The marketing package that contains 137,that's 17 the one that's far more prevalent and has been circulated? 18 A Yes. 19 Q What's the other difference if any between the 20 new marketing package and this older one if you can tell? 21 A The site plan is different. 22 Q Okay: 23 A There may have been, and not having the current 24 package to compare it to, there may have been changes in 25 the text. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 88 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Okay. 2 A The renderings are different. 3 Q These two renderings which stretch out on a long 4 pierce of paper, there's actually color in the package, 5 correct? 6 A You know, I don't recall if they were in this 7 particular package. It's possible that they were. In the 8 current package, they are color. 9 Q Okay. 10 A But what, the fold-out is really more artist 11 renderings than--you'll have it to look at. 12 Q Good. 13 A The maps. 14 Q These are aerial photographs. 15 A Those have obviously not changed. 16 Q Okay. 17 A The map. I don't suspect changes. The project 18 is still in the same -- and you asked earlier if we had 19 disseminated it with Wards. I said I didn't recall. It 20 says Montgomery Ward on there. 21 Q The first tenant marketing package didn't,but 22 then the second one and the subsequent others have not? 23 A Again, I don't recall the exact timing of when it 24 did or didn't. But you asked me if we disseminated 25 packages. You confirmed by handing me that, that we did. ***THIS IS_AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 89 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Now, number 7. I'm looking at number 7 on 2 exhibit 330, "Any and all literature prepared by Ezralow 3 Retail Properties, or their independent contractors, 4 pertaining to The Crossings at Huntington Beach." 5 We have the old tenant marketing package. Is the 6 subsequent one that we're going to see the next time we 7 proceed the latest one -- strike that. Are there any, 8 besides 332, how many other versions of marketing package 9 are there? 10 A I believe there are only two versions. 11 Q Two? And 332 is one of them? 12 A What you're holding, if that's 332, is one. And 13 then the one that contains this site plan. . 14 Q Okay. Good. Are there any other materials 15 besides the two tenant marketing packages that are 16 literature prepared by Ezralow Retail Properties or their 17 independent contractors pertaining to The Crossings? 18 A The slick is different. 19 Q Okay? 20 A It's not part of the marketing brochure. It's 21 sent independently. The video. 22 Q 332, marketing package, slick,the video, okay? i 23 A And I believe that's what we've been sending. 24 That's about it. 25 Q And the video of course does not show Burlington ***THIS IS AN UNEDITED,UNCERTIFIED TRANSCRIPT*** 90 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Coat Factory? 2 A I don't believe the video shows anybody. 3 Q Doesn't show the structure, does it? 4 A I'm sorry. Say it again. 5 Q Doesn't show the Burlington box, does it? 6 A I don't know that it does or doesn't. 7 Q You didn't prepare the video? 8 A I did not. 9 Q Next, 8, "Any and all advertisements wherever 10 located pertaining to The Crossings at Huntington Beach." 11 You said you gave us a magazine article or magazine ads. 12 MR. SHIPOW: No, I don't think he said that. 13 MR. TUCHMAN: Okay. 14 BY MR. TUCHMAN: 15 Q The advertisements pertaining to The Crossings, 16 you didn't run any in the newspaper, correct? 17 A I don't believe we ran any newspaper ads. 18 Q You ran some in magazines? 19 A Yes. 20 Q Did you provide copies of those to counsel? 21 A I believe that I provided a mock-up, but I don't 22 recall. 23 Q Okay. We'll just put that on the list for next 24 time as the magazine ad and the new marketing package. 25 A The mock-up? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 91 1 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Yes. 2 A I believe any ads, and I could be, since I don't 3 handle this, I might be wrong, is probably that. 4 Q Indicating the second page of Exhibit 137. The 5 vision becomes reality in 2001. This right here? 6 A Correct. 7 Q Were there any other versions of this? 8 A I don't know. That's not what I handle. 9 Q We'll get copies of that. Thank you. 10 MR. SHIPOW: Well, are there any, is there anything 11 other than this second page of exhibit 137? 12 THE WITNESS: I honestly don't know. 13 BY MR. TUCHMAN: 14 Q Okay. We'll find out. Thank you. 9, "Any and 15 all proforma documents circulated to potential tenants 16 pertaining to The Crossings at Huntington Beach." Do you 17 have any documents responsive to that request? 18 A Please define proforma documents. 19 Q Well, do you have certain pre-printed forms or 20 letters of intent that you use that you circulate to 21 tenants to have them fill in information? 22 A No, the letters that you have are what I use. 23 Q Okay, the LOIs? 24 A Yes. 25 Q Now, the LOIs; is there some pre-printed forms ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 92 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** I that you have at your office that you use for the LOIs 2 where the information is not included, but the framework 3 is there? 4 A Those were all also included, yes. 5 MR. TUCHMAN: That's the third thing, Mr. Shipow. I 6 believe I'm entitled to at least a form what's called a 7 proforma of the LOIs. Certainly that would not have 8 tenant specific information. 9 THE WITNESS: Well, no,that does not exist. There's - 10 one LOI that was started with tenant number one. 11 BY MR. TUCHMAN: 12 Q Okay? 13 A And I simply just, I mean that's progressed as 14 various tenants came in. There wasn't a form with spaces, 15 and said, Okay, for this tenant I fill in this. There was 16 no form document. 17 Q So then there would be no proforma documents that 18 you had documents used as a model? 19 A No, as you define it, I don't. 20 Q That's fine. 21 A Proforma to me is a number. Is numbers and I 22 don't handle numbers. 23 Q Do you have any documents responsive to number 24 ten, Any and all documents circulated amongst the tenants 25 to attack different tenants? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 93 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A I've never seen, heard or possessed anything like 2 that. 3 Q Number 11, "Any and all documents submitted to 4 the City of Huntington Beach and/or any of its agencies 5 and the Redevelopment Agency of the City of Huntington 6 Beach pertaining to The Crossings at Huntington Beach"? 7 A I don't submit anything to the City. 8 Q Number 12, "Any and all telephone messages or 9 memos or a-mails pertaining to leasing by tenants or 10 possible tenants for The Crossings at Huntington Beach"? 11 A Everything that's voice mailed, it gets deleted. 12 Q No e-mails? 13 A All get deleted. I'm on Earthlink. If I take up 14 too much space, they shut me down, so it just gets 15 deleted. 16 Q Next, "Any and all marketing packages." We went 17 over that. 18 14, "Any and all promotional flyers, cd's, videos 19 or any other promotional materials used to promote or 20 attract tenants." I believe -- 21 A That's the flier and the video. 22 Q And I think we have the video,too. 23 A Yeah. 24 MR. TUCHMAN: Now I want to move to Exhibit 331 which 25 is this amended notice of deposition. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 94 ***THIS IS AN UNEDITED; UNCERTIFIED TRANSCRIPT*** 1 And I think-- I'm sorry -- I think that you 2 provided some kind of response today, Mr. Shipow, which I 3 will attach as 333. 4 (Whereupon Plaintiffs Exhibit 333 was marked for 5 identification.) 6 BY MR. TUCHMAN: 7 Q Let's go through the, I have not seen it before 8 today, but let's go through 331. Take a look at the 9 document request. Some of them are duplicative of the 10 previous ones. 11 First one here says, "All documents regarding, J " 12 referring, or relating to pre-condemnation offers made by 13 the Redevelopment Agency or the City of Huntington Beach 14 to you in connection with contemplated condemnation of a 15 portion of the shopping center." 16 A Wouldn't possess anything of that nature. 17 Q Do you know if there is one? 18 A I have no nerve idea. 19 Q Do you know what a pre-condemnation offer is? 20 A I do not. 21 Q You do know Ezralow owns land where Burlington is 22 sitting; right? 23 A I do. 24 Q Did you know there was an offer made by the City 25 to buy the land for Ezralow and give it back to Ezralow? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 95 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A I don't know the process. But I understand from 2 the last council meeting I was at,they were going to make 3 some kind of offer. Beyond that, I don't know the 4 definitions or how it works. 5 MR. TUCHMAN: Mr. Shipow,this is going to be an issue 6 with respect to the pre-condemnation offer. I want you to 7 know that we want it. We want you to produce it. Let me 8 finish. We've attached it to the request for documents to 9 all the notices of depo. We believe it is timely. I ask 10 that you produce it forthwith. 11 MR. SHIPOW: Two comments. Number one, it is not 12 timely with respect to Mr. Bernard's deposition. 13 Secondly, Mr. Bernard, as he just testified, doesn't have 14 possession of it. Third, I believe it is included in some 15 of the other document requests, and we will make 16 appropriate production. 17 MR. TUCHMAN: Also you're going to produce the 18 pre-condemnation offer? 19 MR. SHIPOW: I believe that we will. I haven't 20 completely analyzed the issue. 21 MR. TUCHMAN: Okay, great. 22 MR. SHIPOW: But we'll respond timely as we typically 23 do. 24 MR. TUCHMAN: I think the next depo is November 20th? 25 MR. SHIPOW: I'd have to check my calendar. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 96 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 THE WITNESS: For me? 2 MR. SHIPOW: No. 3 MR. TUCHMAN: It's in November. 4 MR. SHIPOW: I think that's right. 5 MR. TUCHMAN: We'll, I'm not going to file a motion 6 before that production date. 7 MR. SHIPOW: That's fine. 8 BY MR. TUCHMAN: 9 Q Next all documents exchanged between you-- 10 MR. TUCHMAN: Yeah,November 20, Doug Gray. 11 BY MR. TUCHMAN: 12 Q "All documents exchanged between you and the 13 Redevelopment Agency regarding,referring or relating to 14 the condemnation of the shopping center." Do you have 15 such documents? 16 A No. 17 Q Okay. 18 A Sorry. 19 Q Three, "All correspondence exchanged between you 20 and the Redevelopment Agency regarding, referring or 21 relating to the redevelopment of the shopping center." Do 22 you have such documents? 23 A I don't have any contact with the Redevelopment 24 Agency, no. 25 Q We have to go ask Doug Gray about that? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 97 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A I don't know who you would need to ask, but I 2 know it's not me. 3 Q "All correspondence exchanged between you and the 4 Redevelopment Agency regarding, referring or relating to 5 Burlington. 6 A Again, I have no such documents. 7 Q Okay. I'm going to switch now. I'm skipping all 8 the way to 19. 9 A Okay. 10 Q Now, I want you to read number 19, and it may be 11 that Doug Gray is the one, but read 19 through 29 and tell 12 me if you have documents responsive to categories 19 13 through 29. I'm not going to read them into the record, 14 but they will be a part of the record since I am referring 15 to them and incorporating them in the question. 16 A Item 19, "All documents" -- 17 MR. SHIPOW: You don't need to read it-- 18 THE WITNESS: Okay. 19 MR. SHIPOW: Read them to yourself. 20 THE WITNESS: I've given you the documents that 21 related to leasing as part of the package I provided. 22 BY MR. TUCHMAN: 23 Q Okay. 24 A I am not involved in any way, shape or form with 25 the OPA. I would not be able to supply anything of that ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 98 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 nature. 2 Q When you talk, please refer to a number. 3 A Okay. That was item 20. 4 Q Good. 5 A I have not seen or reviewed any of item 21 nor do 6 1 have possession of it. 7 Item 22, 1 have nothing to do with, haven't seen 8 or have possession of. 9 Item 23, it clearly states Cristina Hughes. 10 Again I have nothing to do with that. 11 Again 24, refers to Pat Rogers. Again, nothing I 12 have anything to do with. 13 Item 25, it's referred to as you,which I'm 14 assuming is me, Paul Bernard, and I don't know who 15 Barbara Zachery is. I don't have any documents relating 16 to Burlington. 17 I have nothing to do with letters of credit. 18 Item 26, excuse me. 19 Item 27, I have nothing to do with. 20 Item 28, I have nothing to do with. 21 MR. TUCHMAN: 28 has to do with permits for the 22 record. 23 THE WITNESS: Okay. And item 29 I have supplied to 24 you everything that I have regarding marketing packages. 25 BY MR. TUCHMAN: ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 99 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Except for the most current one? 2 A Well, I provided that. 3 Q Oh, you did give it to the attorneys, you mean? 4 MR. SHIPOW: Mr. Bernard recalls he gave that to me. 5 I thought that it was copied and produced, but it's 6 possible it wasn't. That's what I'm going to check on 7 when I get back to the office. 8 MR. TUCHMAN: Great. New marketing package and 9 magazine ads are the things I have outstanding for this 10 witness. 11 MR. SHIPOW: Well, I think you have as part of 137 the 12 magazine ad. 13 MR. TUCHMAN: I think he said he wasn't sure. 14 THE WITNESS: I did say I wasn't sure. I don't know. 15 MR. SHIPOW: I'll check on it. 16 THE WITNESS: Yeah. 17 BY MR. TUCHMAN: 18 Q Now, look at a few exhibits which were previously 19 marked. Take a look at exhibit,by the way, do you know 20 who Robert Bucci is? 21 A I do. 22 Q Who is that? 23 A He is at Greenberg Farrow Architects. 24 Q Who's Greenberg Farrow? 25 A Greenberg Farrow is an architect firm. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 100 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** I Q Are they involved in this project? 2 A As far as I know, they are the architect for 3 Huntington Beach. 4 Q The City of Huntington Beach or for Ezralow? 5 A The property, when I say Huntington Beach. 6 Q Do you know who pays for them? 7 A I would suspect Ezralow. 8 Q Did you have any direct contacts with them? 9 A Yes. 10 Q Why? 11 A I don't know that I understand the why part of 12 that. 13 Q Well, you deal with tenants. You want to fill up 14 the shopping mall, right? 15 A Yes. 16 Q Greenberg Farrow,they're architects? 17 A Yes. They're also architects on Monterey Park, 18 Downey and Lake Forest. Monterey Park is substantially 19 further along. I have tenants for that deal. I'm in 20 their offices talking about Monterey Park on a much more 21 focused basis. 22 Q That's fair. Let's remove everything except for 23 Huntington Center-- 24 A Uh-huh. 25 Q -- and your contact with Greenberg Farrow. ***THIS IS AN UNEDITED,UNCERTIFIED TRANSCRIPT*** 101 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A Okay. 2 Q Who do you have contact with at Greenberg Farrow 3 relative to Huntington Center? 4 A It has typically been as a byproduct that I pick 5 things up for Doug if I'm there for other projects. I 6 have seen various site plans. 7 Q Okay. And how many site plans have you seen? 8 A I have no idea. 9 Q Now, does Greenberg Farrow, do they work with you 10 with respect to addressing the needs of specific tenants 11 who have LOIs? 12 A Not yet. Again, we are talking about Huntington 13 Beach. 14 Q Only Huntington Beach. 15 A Fine. 16 Q Only Huntington Beach. 17 A Fine. I just want to be clear I'm answering the 18 right questions. 19 Q I appreciate you asking. It doesn't bother me 20 and you should always ask if you don't understand 21 anything. Okay? Is that understood? 22 A Oh, yeah. 23 Q Okay. Now, do you know why Greenberg Farrow has 24 sent you site plans relative to Huntington Beach? 25 A They don't send -- if they send me site plans, ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 102 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 they're for Doug. I don't know if they have or haven't 2 sent site plans directly to me, but they would be for 3 Doug's review. 4 Q Okay. I want you to take a look at Exhibit 112. 5 MR. TUCHMAN: For the record, 112 is a fax 6 transmittal. March 20, 2000. It looks like a fax four 7 pages from Bob Bucci to Paul Bernard. 8 BY MR. TUCHMAN: 9 Q Do you recognize Exhibit 112? 10 A Yes. 11 Q What is 112? 12 A It is a fax sheet that references Rubio's and 13 Pizza, Huntington Beach. 14 Q Do you know what was-- accompanied this fax? 15 A I would suspect the tenants supplied preferred 16 store layouts. 17 Q Why are the tenants preferred store layouts sent 18 to, were sent to Greenberg Farrow? 19 A They're the architect. 20 Q But if we don't know what space they're going 21 into -- 22 A Space is irrelevant to a tenant's interior 23 layout. They could be here, they could be here, they 24 could be anywhere on a site plan. We're talking about 25 their interior store. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 103 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 MR. TUCHMAN: Indicating 137. 2 BY MR. TUCHMAN: 3 Q Okay. So when you're saying the layout, the 4 layout refers to internal and the location in the mall 5 doesn't pertain to how their layout should be? 6 A No. 7 Q Is that correct? 8 A That is correct. 9 Q Now, who's paying for the, I don't understand. 10 Is this part of your deal with Rubio's and Pizzarito that 11 you're going to assist them and pay for the layout of 12 their store? 13 A No. We're not going to pay for their layout of 14 the store. The condition, as I referred to earlier, 15 delivery of premises, there are certain conditions which 16 are, you know, vary from tenant to tenant that we will 17 deliver a space to a tenant. 18 Q Well, what does Greenberg Farrow do? They do 19 design the counters, signs and sinks? 20 A That's the fixturization period that I talked 21 about for the tenants. Whether 60, 90 or 120 days, they 22 will do that. 23 Q I don't understand what Greenberg Farrow is doing 24 with respect to Rubio's. Would you tell me? 25 A Rubio's, and I would suspect that Rubio's said ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 104 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 our preference is that we're this deep and this wide. 2 Wherever we may be, our square box is this deep and this 3 wide. 4 Now, add that for the record, so at the time 5 we're ready to start putting the pieces of the puzzle 6 together, we've got that information. 7 Q I see. And do you know if any of the pieces of 8 puzzle have been put together? 9 A I know they haven't because Rubio's has been 10 calling me wanting to know why they don't have information 11 to submit to committee. 12 Q So basically the plans that or specification that 13 are sent to Greenberg Farrow have to do with what the 14 store needs internally? 15 A No. What, unless I misunderstood your question, 16 what.the store needs internally,they will do. The four 17 walls that they will occupy inside the four walls. 18 Q Yes. 19 A They may say we want it to be a hundred feet by a 20 hundred feet. 21 Q Okay. I think I understand. 22 Now do you know why 112 was sent to you? 23 A No. 24 Q Do you know, does Greenberg Farrow deal directly 25 with Rubio's? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 105 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. I don't believe so. 2 Q Take a look. 3 A I do give contact information to tenants. I do 4 give Bob's name to tenants if their architects want to 5 talk. I don't know if he's in contact with Rubio's or 6 not. 7 Q Do you know if Greenberg Farrow has dealt with 8 the Great Indoors? 9 A I don't know. 10 Q Take a look at what was previously marked as 11 121. Tell me if you recognize it. For the record 121, 12 letter of transmittal dated April 7, 2000,to Paul Bernard 13 from Robert Bucci? 14 A 11 by 17 site plans showing Circuit City Parking 15 Realignment and two copies of same. 16 Q Do you know why this was sent to you? 17 A Circuit City in conjunction with talking to 18. Westminster has-been talking to us about a new store. I 19 would suspect that they wanted to see how the parking was 20 going to be changed when they expand or if they expanded 21 depending on their decision. 22 Q Which conception site plan was used with respect 23 to determining what kind of parking they will be using? 24 A I have no idea. 25 Q Did you review the Circuit City plan, 11 by 17? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 106 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A I may have looked at it before I sent it out. 2 Q Okay. Did you give this to Circuit City? 3 A I would guess that.I did. I don't know that I 4 did. 5 Q Okay. 6 A Circuit City has been sent information. So. 7 MR. TUCHMAN: Take a look at exhibit 128. 8 128 for the record is a fax transmittal dated 9 April 24, 2000. It's to C R H O Architects from Bob 10 Bucci. 11 THE WITNESS: I don't know who that is. 12 BY MR. TUCHMAN: 13 Q Do you recognize exhibit 128? 14 A No. 15 Q Do you recognize the conceptual site plan or the, 16 actually it's called a specific site plan 0228. Do you 17 recognize this? It's the last two pages which are really 18 one page. 19 A Is it not, I guess it's not the same. It looks 20 similar to the slick. 21 Q Okay. And do you see where Burlington Coat 22 Factory is in there? 23 A I don't believe their building is on this 24 particular site plan. 25 Q Okay. Have you ever seen this specific site plan ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 107 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 before, 0228? 2 A It's possible. I don't know. 3 Q Now you've talked to In-N-Out; is that right? 4 A Yes. 5 Q Are they coming into the property? 6 A No. 7 Q Why not? 8 A I have no idea. 9 Q Did you sign a letter of intent with them? 10 A I don't believe there was a signed letter of 11 intent. I could be mistaken. I don't think there was. 12 Q Now,when you, I'm looking at HCA 00555. I have 13 about a thousand pages like this. 14 A Okay. 15 Q Where it's just a blank page and all redacted. 16 You'll just have to bear with me. 17 A Sure. 18 Q What happened with In-N-Out? 19 A Negotiations.ceased. 20 Q Why did they cease? 21 A I have no idea. The tenant stopped negotiations. 22 Q Would you describe In-N-Out as high-end? 23 A It's burgers. 24 Q It's not exquisite burgers, is it? 25 A Some they say. I enjoy them. ***THIS IS AN UNEDITED,.UNCERTIFIED TRANSCRIPT*** 108 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Now by the way, is Krispy Kreme, do they have an 2 LOI? 3 A They do. 4 Q That's signed off? 5 A That is. 6 Q That's going underneath the Southern California 7 Edison power lines? 8 A I have no idea exactly where they're going. 9 Q We don't know where they're going? 10 A I don't. 11 Q We better add that to the list. Krispy Kreme, 12 how many square feet are they? 13 A Prototypical Krispy Kreme is like approximately 14 4,000 feet. 15 Q Do you know if that's going to be connected to 16 the 17 mall for lack of a better word or is that going to be a 18 separate structure aside? R 19 A I can't speak to --their tradition is to be 20 separate. Since I've not been told exactly what's going 21 to be done here. 22 Q Okay. Now, did you talk with Steven Weiss about 23 Burlington Coat Factory? 24 A It's possible. 25 Q Do you know what you said to Mr. Weiss about it? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 109 l ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 MR. TUCHMAN: Off the record for a second. Take a 3 quick break. 4 (Recess taken.) 5 MR. TUCHMAN: Let's go back on the record. 6 BY MR. TUCHMAN: 7 Q Now it says In-N-Out pad location. What is a 8 pad? 9 A It's an outline parcel, Macaroni Grill which is 10 existing is a pad. This would be considered a pad. I 11 mean there's B of A is a pad. 12 Q Outside boxes near the street; is that correct? 13 A Yeah. 14 Q Where is Krispy Kreme going? 15 A They, I believe, have asked for this pad. 16 Q Which is off of Edinger right near the Center 17 entrance; is that correct? 18 A Correct. 19 Q Any other outside pads where you have LOIs 20 signed? 21 A Buca Di Beppo have asked for the pad,how you 22 want to refer to it on the record? On the opposite side 23 of Barnes and Noble. 24 Q Center Avenue. Okay. When you say asked, have 25 they been given it? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 110 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A I can't answer that question because I don't know 2 the exact redevelopment verbiage that's gone into the 3 leases and how that relates to what they do or don't get. 4 Q Who else has an LOI signed that is on a pad? 5 A On the Border. 6 Q Okay. 7 A Which is and Edinger pad. And that's it that I 8 recall. 9 Q Now, Macaroni Grill, they're staying, right? 10 A As far as I know. 11 Q Okay. Now, next, you spoke to Mark Mims at Hub 12 Distributing? 13 A Uh-huh. 14 Q Is that a yes? 15 A Yes. 16 Q What does Anchor Blue mean? 17 A Anchor Blue is the name of his business. 18 Q What kind of store is that? 19 A It is primarily Dockers and mens' casual wear. 20 Q Did that go anywhere? 21 A That has not gone anywhere as of now. 22 Q Is it still a viable possibility? 23 A In terms of what I think, yes. In terms of a 24 final division from Doug, I have no idea. 25 Q Next we have Brett Robinson, Harbor Massenter ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 111 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Company, Apple Computers. Where are they going? Are they 2 in the Center? 3 A They're not currently a tenant in the Center, no. 4 Q Are they going to be? 5 A As of now, no. 6 Q Do they have a signed LOI? 7 A No. 8 Q Do they have an LOI outstanding? 9 A I believe they do. 10 Q Okay. And do you know? 11 A Brett Robinson no longer is at Harbor and 12 Massenter. 13 Q They run a computer operation? 14 A They sell high-end computer accessories. 15 Q There's that word again. Did you say high-end? 16 A They're very expensive. How's that? 17 Q Apple Computers,that's how many square feet for 18 that store? 19 A I don't recall. It was, I think 5,000 or north. 20 Q Do you think they're going to be signing up? 21 A I have no idea. ` 22 Q Do you think this guy from Hub is going to be 23 signing up? 24 A I don't know. 25 Q Toys R Us coming in? Is Toys R Us coming in? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 112 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No, doubt it. 2 Q What happened to Toys R Us? 3 A I don't recall. 4 Q Is this a high-end Toys R Us? 5 A I don't know that it is a Toys R Us. I believe 6 it was for Babies R Us. 7 Q Do you know why Babies R Us aren't taking a pad? 8 A I don't know. 9 Q Do you know there was a lead then it died? 10 A Yeah, there was a lead,then it died. Maybe I 11 didn't clarify early on. My job is to bring any 12 interested parties to the table. I acquire leasing 13 interests. I am not going to be the deciding factor as to 14 who is either in or not in the project. That would be 15 Doug. So I bring anyone who shows interest to the project 16 to the table. 17 Q I see. 18 A We go from there. 19 Q You're not part of the screening process? 20 MR. SHIPOW: Objection ambiguous. 21 BY MR. TUCHMAN: 22 Q Are you part of the screening process? 23 A I don't understand what that means. 24 Q Whoever wants to come in. Do you ever say we're 25 not going to be interested in you, don't bother? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 113 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A I don't think I've ever said that, unless it was 2 a tenant who just wouldn't work in a million square foot 3 center or whatever it turns out, 800,000, 700,000, 4 whatever it is. 5 Q It there any tenants that wouldn't work out in 6 that center? 7 A Not off the top of my head. 8 Q Okay. Do you have any clothing places that, you 9 have LOIs on that sell general merchandise not just pants 10 or gap-type stuff? 11 A We have I believe an open LOI to Kohl's. 12 Q Who now? 13 A Kohl's, K-o-h-1, apostrophe s. 14 Q What is that? 15 A It's a department store, if you will. 16 Q How many square feet? 17 A They're larger than 80,000. 18 Q They sell kind of the same stuff Burlington does? 19 A I have no idea what Burlington sells. 20 Q They sell clothing,various clothing. 21 A Okay. 22 MR. SHIPOW: Are you making that representation that 23 that is all they sell? 24 MR. TUCHMAN: I'm making no representation. 25 MR. SHIPOW: Well, then ask a question instead of ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 114 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 stating something. 2 BY MR. TUCHMAN: 3 Q You don't know what Burlington sells? 4 A No. 5 Q Okay. If Burlington came to you and they weren't 6 in this center as a prospective tenant, would you take 7 them to the table or shoo them away? 8 A I would send an LOI and let somebody else to 9 decide. 10 Q Who makes the decision to screen; like we don't 11 want this type of tenant? 12 A I don't know that any decision of that nature has 13 been made yet. I think Doug ultimately with Bryan decides 14 who fits best in whatever type of projects end up coming 15 here. . 16 Q Why did the Babies R Us idea not come through? 17 A I have no idea. Babies R Us is working with us 18 on three other projects. And they asked, you know, would 19 we work in Huntington Beach? And then they feel, Dan Abel 20 told me there is a Kids R Us and Toys R Us that's on 21 Edinger that aren't that profitable, so it wavered. 22 Q You have in your letters,there's percentage 23 rent built into LOIs? 24 A Not all. 25 Q How do you decide where you're going to put a ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 115 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 percentage rent in there? 2 MR. SHIPOW: Object to that as calls for a financial 3 term that is proprietary and has nothing to do with the 4 lawsuit. Instruct the witness not to answer. 5 BY MR. TUCHMAN: 6 Q Do you have any percentage rents on any clothing 7 stores? 8 MR. SHIPOW: Same objection, same instruction. 9 MR. TUCHMAN: I think it's a dangerous objection and 10 instruction. 11 BY MR. TUCHMAN: 12 Q Do you know what percentage rent means? 13 A Yes, I do. 14 Q What's it mean? 15 A It's an additional rent to be paid over base rent 16 if the volumes of the store are over a certain volume. 17 Q Do you know is there a certain classification or 18 type of store where that applies and where it does not 19 apply? 20 A I don't know. 21 Q Like, do we do that on restaurants? 22 A We do that on restaurants. 23 Q Do we do that on-- 24 A You can do it across the board. 25 Q But in the Huntington Center are we doing it on ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 116 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 restaurants? 2 A There isn't a blanket policy to do or not do it 3 on anybody. 4 Q Under what circumstances do you try? 5 A Some tenants never do it. Some tenants do it. 6 You probably try to get it whenever you can. 7 Q Bahama Breeze, what are they all about? 8 A They are a Caribbean primarily in Florida. 9 They're owned by Darden Restaurants. And it's a 10 restaurant nightclub. 11 Q They have an LOI outstanding? 12 A I would say by this point I verbally have been 13 told that the LOI is not going anywhere. 14 Q Okay. And you were dealing through a broker with 15 them,not directly? 16 A . I deal through a lot of brokers. 17 Q Somtimes the broker, sometimes directly the 18 business? 19 A That's correct. 20 Q Okay. Bamboo Club? 21 A Yes. 22 Q They have an LOI outstanding? 23 A They do. 24 Q How many square feet? 25 A They're approximately 6 thousand feet. I think ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 117 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 they're a little bit larger. 2 Q What is that? 3 A A very high-end Asian food. 4 Q High-end Asian food? 5 A Very, expensive. If you will. 6 Q Okay. And this is a broker, Scott Manclark? 7 A Correct. 8 Q And when did the LOI go out on that? 9 A I don't recall the date. 10 Q Do you expect they'll sign up? 11 A I don't know. 12 Q What's generally the timing if there is timing on 13 when an LOI goes out and when it comes back signed? 14 A There is no general timing. 15 Q Sometimes quick, sometimes very slow? 16 A Yes. 17 Q Okay. You're on the phone a lot; am I right? 18 A Yes. 19 Q That's where you do primarily most of your 20 business? 21 A Primarily. 22 Q Do you keep notes of your conversations? 23 A Not all, some. 24 Q When do you decide to keep notes of your 25 conversations? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 118 I ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A If I need to call back because the tenant either 2 isn't ready to talk or if they tell me no. They have got 3 no interest in the site. But other than that, I just keep 4 in contact with primarily everybody. 5 Q Besides the slick and maybe the video and the 6 tenant marketing packages and an LOI, is there any other 7 types of materials you mail to prospective tenants? 8 A No. 9 Q You pretty much, you have one function, but 10 there's so many feelers that you have to apply towards 11 that function that you that's what you concentrate on on a 12 daily basis? 13 A That's true. I'm doing that with four projects. 14 Q All related to Ezralow? 15 A Correct. 16 Q The other three is Downey, Monterey Park, what's 17 the other one? 18 A Lake Forest. 19 Q Lake Forest is barely started though? 20 A That's correct. 21 Q Okay. There's a new Barnes&Noble location. 22 What's wrong with the old one? 23 A I don't know there's anything wrong with the old 24 one. 25 Q Were you discussing with Mr. Toohey, T-o-o-h-e-y, ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 119 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 a new Barnes &Noble location? 2 A He thinks that if he can get into a core of the 3 project rather than being out by the freeway, he might do 4 more business is what he told us. 5 Q Do you think he's right? 6 A I have no idea. I don't tell a retailer what 7 they should or shouldn't do. 8 Q Probably wouldn't listen anyway? 9 A Probably not. 10 Q How many square feet is it, the Barnes&Noble 11 that currently exists? 12 A I believe it's 40 thousand feet. 13 Q Do you know how much they pay? 14 MR. SHIPOW: Object to that as calling far 15 confidential proprietary information. Instruct the 16 witness not to answer. 17 BY MR. TUCHMAN: 18 Q Now,that has a percentage rent in there. 19 MR. SHIPOW: Same objection. Same instruction. 20 BY MR. TUCHMAN: 21 Q Now,has an LOI been sent to Barnes&Noble? 22 A Yes. 23 Q Has it been signed? 24 A No. 25 Q Do you know why it hasn't been signed? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 120 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 Q Do you know if they're going to be signing? 3 A No. 4 Q When does their old lease end? 5 A I don't recall. 6 Q Is it within the next couple years,two years? 7 A No. It's got some time left on it. I don't 8 recall how many years. I believe it may be more than ten 9 but I don't recall. 10 Q Within your LOI is there contemplated an early 11 termination of the old lease? 12 A You know, I don't know that it refers, if the 13 word, I don't believe the word termination would be 14 anywhere in there but it would refer to a new lease. 15 The new long-term lease is probably what it says. 16 Q They'd be leaving their 40 thousand feet in the 17 strip? 18 A That's what they asked for proposal on, yes. 19 Q Now this is this a broker or is this Barnes& 20 Noble? 21 A Who? 22 Q Lea Clay. 23 A Lea Clay, L-e-a, Clay, C-1-a-y, is the broker who 24 represents Barnes &Noble. 25 Q It's Staubach Company? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 121 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A .Staubach. Don't mess up an icon's name. One the 2 greatest quarterbacks in the history of this country. 3 Q Geeze. The only thing you've testified at your 4 depo about. 5 A Good old Roger. 6 Q Do you know where he did his college ball? 7 . A Naval academy. 8 Q I thought it was air force. 9 MR. SHIPOW: I think it was, actually. 10 THE WITNESS: Shame on me. That's terrible. 11 MR. SHIPOW: That's an icon you're misinterpreting. 12 THE WITNESS: I feel terrible. But I have to live 13 with my Cowboys this season. I feel terrible about that 14 too. 15 BY MR. TUCHMAN: 16 Q We also have Scott Manclark again. He was on 17 another project. 18 A Uh-huh. 19 MR. SHIPOW: Yes? 20 THE WITNESS: Yes. 21 BY MR. TUCHMAN: 22 Q He was on Bamboo Club, but he's also on Bed Bath 23 & Beyond? 24 A Yes. 25 Q What's the status of Bed Bath& Beyond? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 122 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A I believe that's a signed LOI. I don't believe I 2 gave that to you earlier. 3 Q How many square feet? 4 A I don't recall, but their typical store is 35 to 5 45 thousand square feet. 6 Q Buca, B-u-c-a, restaurants. There's a signed LOI 7 with them? 8 A That is correct. 9 Q Is that this? 10 A Buca Di Beppo. 11 Q Buca Di Beppo has the pad; is that correct? 12 A That's what they asked for,yes. 13 Q That's a little over 7 thousand feet? 14 A Correct. 15 Q Okay. CPK is not a pad, correct,not on a pad? 16 A That is correct. 17 Q Islands is not on a pad? 18 A That's correct. 19 Q Now, with this Buca restaurant,they only have 20 one restaurant,the Buca Di Pepe place, correct? 21 A Buca Di Beppo, yes. 22 Q Okay. Do you know why you wrote to Buca 23 restaurants in September 29, 2000, as well as March 8, 24 2000? 25 A Could be a response to a response. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 123 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Okay. Could be. 2 A I don't know. 3 Q We'll not be able to tell today. These letters, 4 you wrote a bunch of letters in September, a lot on 5 September 29 -- September 16, 1999, there are two-page 6 letters. What did these letters say? 7 A Well, this is a three-page letter, so this, I 8 would assume, is a standard LOI to In-N-Out. 9 Q Okay. So you were sending LOIs even in September 10 of'99? 11 A Yes that would have been with the original 12 marketing package that you brought out earlier. 13 Q Okay. So when you say with it, it's not in the 14 marketing package. The marketing package would have -- 15 A It's a solicited interest. The tenants either 16 would have asked for it or I would have submitted those 17 LOIs. 18 Q Was your practice to send the tenant marketing 19 package with the LOIs? . 20 A Not traditionally. 21 Q Your practice was to send the tenant marketing 22 package. If they're interested,then send the LOI? 23 A Correct. 24 Q Do you have a mailing list of where you sent the 25 tenant marketing packages to? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 124 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A I have a database that would include mailers for 2 Huntington Beach as well as the other projects. 3 Q Okay. 4 A I don't have a discriminating database that says 5 these people should get this project,these people should 6 get this project. 7 Q Is it fair to say that any of the people that you 8 send these letters, which I assume are LOIs,they got 9 tenant marketing packages? 10 A You should assume that, yes. 11 Q Is it also fair to say that there were more 12 tenant marketing packages that were mailed out where no 13 follow-up LOIs were sent? 14 A Yes. 15 Q Now, if I see a three-pager,that means it's 16 probably a LOI; is that right? 17 A It could. 18 Q What else could it be? 19 A It could be just a letter. I haven't seen those 20 documents that way, so. 21 Q You mean totally gutted? 22 A I haven't memorized what letters compared to LOIs 23 may be in terms of lengths. 24 MR. TUCHMAN: For the record, I'm looking at HCA 555 25 through 592. And there's basically addresses, a ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 125 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 salutation, and then blank pages. 2 BY MR. TUCHMAN: 3 Q So when you say you haven't seen them like that, 4 that's what you mean? 5 A That is what I mean. 6 Q Now, were these letters that are totally blank, 7 who were they signed by, the LOIs? 8 A Me. 9 Q So your signature is even blocked out here, 10 right? 11 A Yes. 12 Q Okay. Was there something confidential about 13 your signature? 14 A (No audible response.) 15 Q Okay. Now, the LOIs that you sent out, you sent 16 them out as early as September'99, are you still sending 17 out LOIs? 18 A Yes. 19 Q Okay. Because I see for example I think I saw 20 September 29, 2000,the Toys R Us. This is not an error, 21 this is sent about a month and a half ago? 22 A That doesn't make sense. 23 Q Okay. And then to Jim Auther(phonetic), 24 September 29, 2000. This might be an LOI. Some words 25 were left uncovered. I'm not sure why. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 126 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A This doesn't make sense. The date's wrong. 2 Q Okay. You don't know what that is? 3 A I don't know what that is. 4 Q This is an LOI to Bahama Breeze, September 29, 5 2000, and I suspect that it is because if you look at the 6 third page, they forgot to cover up four words? 7 A Yeah, this would have been an LOI. 8 Q The LOI on the third page has as part of its 9 topic, hazardous material section? 10 A Uh-huh. 11 Q Basically saying you can't have hazardous 12 materials on the premises, I assume? 13 A I think in that letter, and when I say that 14 letter, LOIs, it says to be determined in formal lease 15 documentation. 16 Q Okay. Then percentage rent, if there's a 17 percentage rent column,that means you're setting forth a 18 percentage of rents you want over a certain amount of 19 gross sales on a monthly or annual basis? 20 A Could have also said none, depending on what 21 tenant it is. 22 Q Thank you. Now what does it say? Lease, what 23 does that mean after the lease column? 24 A Lease form. Whose form it's going to be. 25 Q Sometimes the tenants, bigger tenants, want you ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 127 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 to use their form? 2 A Correct. 3 Q On the smaller ones, you use your form? 4 A Sometimes. It's not always based on square 5 footage. 6 Q Is it, oh, it's not the actual paperwork and who 7 prepares it, it's how you pay your rent? 8 A No. 9 Q What does it usually say after lease? 10 A After lease it will either say landlord's form or 11 tenant's form. 12 Q I understand. 13 A And that's the actual document, the lease 14 document. 15 Q Do you have proposed form leases that you have 16 been sending out? 17 A There have been leases sent out. I don't, I 18 don't know if there have been any landlord leases sent 19 out. 20 Q Okay. Broker's commission,that just deals with 21 who gets what percentage and how it's calculated? 22 A Correct and when it's paid. 23 Q Has it been the situation where you represented 24 both Ezralow and a prospective tenant, you personally, 25 Mr. Bernard? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** . 128 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A There are situations where there are no brokers 2 involved. 3 Q Okay. 4 A My compensation does not change. 5 Q Okay. But do you have, do you have other clients 6 outside of Ezralow? 7 A Not anymore. 8 Q Okay. Let's go back to, it looks like on the 9 second page there's more,this is the form, right? I'm 10 looking at HCA 579. That's what the form looks like on 11 the.second page, correct? 12 A For this particular tenant. 13 Q Okay. So you're saying that's not a standard? 14 A That is --no, that's why I said there was one 15 initial form to a tenant then it gets modified based on 16 who the tenant is. 17 Q So do all the LOIs have the following categories, 18 tenant, colon, rent commencement,term, use,rent, CAM 19 taxes, insurance -- 20 A Yes. 21 Q -- improvements and unamortized.tenant 22 improvements? 23 A Improvements and unamortized tenant improvements 24 were for this particular tenant. 25 Q The other categories are pretty much general to ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 129 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** . 1 these LOIs? 2 A Yes. 3 Q Sometimes you can tell a lot from a little. 4 Sometimes you can tell nothing. 5 Okay. Now you had contacts with Pasta Bravo and 6 they signed an LOI, correct? 7 A Correct. 8 Q When did they sign their LOI? 9 A I have no idea. 10 Q Your contact person is Mike Zoob, Z-o-o-b, at 11 Grub & Ellis? 12 A He's no longer at,Grub& Ellis. 13 Q Why was this letter, HCA 593 to 597, why was this 14 five pages? 15 A The tenant, occasionally tenants have paragraphs 16 that are important to them. And it's easier to put it in 17 the LOI on our form, because in this case we'd be using 18 our lease. So the tenant said, "Could you put this into 19 the LOIT' 20 Q What kind of stuff they want to put in? 21 A Contingency. 22 Q Did the contingency at all refer to Burlington 23 Coat Factory? 24 A No. 25 Q Did they refer to the redevelopment of the ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 130 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 shopping center? 2 A I don't recall. 3 Q Looks like you had a lot of letters with Pasta 4 Bravo? 5 A Uh-huh. 6 Q Is that a yes? Why did you have so many letters 7 with them? 8 A They were on again, off again. 9 Q Now, it looks like approximately 2000 square feet 10 plus 5 hundred square feet of outdoor seating location to, 11 be in retail building S. Where is that? 12 A That doesn't exist on this conceptual plan. 13 Q What's S? They must have pulled it on somewhere 14 on September 29, 2000? 15 A That date unfortunately is not right. 16 Q What date do you think it is? 17 A I don't know. 18 Q Where is S? 19 A S would have been on an earlier site plan than 20 this one. 21 Q Okay. Do you know where we can find S? 22 A You can look in the other package that you had 23 out. 24 Q Tenant marketing package? 25 A Uh-huh. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 131 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Retail space. We're looking at 332. And they 2 were marked by letters; am I right? Retail S, 16 thousand 3 square feet. And I'm looking on the bigger part second to 4 last page of 332. And retail S, do you know where it is, 5 please? Thank you. 6 Indicating a second floor towards the Barnes & 7 Noble, retail S. Okay. But this, this second floor 8 scheme does exist, but it just doesn't have the deck; is 9 that correct or incorrect? 10 A No, it's on this conceptual plan. It does not 11 exist. 12 Q Is the second floor going to be there? 13 A There may be or may not be some two-story 14 tenants. 15, Q I see. Okay. Do you know why that was removed? 16 A No. You would have to ask Doug. 17 Q All right. We'll ask Doug. 18 MR. SHIPOW: When do you want to take a lunch break? 19 MR. TUCHMAN: Whatever time you want. 20 (Discussion held off the record.) 21 BY MR. TUCHMAN: 22 Q Now, the landlord here on HCA 603 says Ezralow 23 Retail Properties N, R, S and E. What does that mean? 24 A The ownership of the project is currently HCA. 25 Q Okay. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 132 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 A Associates. 2 Q Yeah. 3 A So Ezralow Retail Properties would not be signing 4 that lease. 5 Q Has anybody told you that Ezralow or one of its 6 companies is just going to develop the property and turn 7 around and sell it? 8 A I have not heard that. 9 Q Would that surprise you? 10 A Nothing surprises me. 11 Q Okay. Has Mr. Gray said to you that we're going 12 to run that way, the business of running shopping centers, 13 we build them and we sell them? 14 A No,that's never been said. 15 Q You ever hear that from anybody? 16 A No. 17 Q Beverages & More, LOI signed? 18 A Yes. 19 Q Are they on our list? 20 A No. 21 Q How many square feet? 22 A Approximately 15 thousand. 23 Q What is Beverages & More? 24 A They sell wine, cigars, cheese, much of it 25 imported. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 133 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q High-end? 2 A A lot of it more expensive than I can afford. 3 Q Okay. And when did they sign their LOI? Did I 4 ask you that? 5 A Actually, that LOI has not been returned yet. 6 Q Okay. 7 A Perhaps I misspoke in saying it was signed. 8 Q Not returned yet. But you know it's been signed? 9 A They told me their broker said it was signed. 10 Q When did he tell you? 11 A Last week. 12 Q Who is their broker? 13 A His name is Matthew Alexander. 14 Q At Staubach? 15 A Also from Staubach. 16 Q Did you discuss the specific location with Mr. 17 Alexander or anyone from Beverage &More as to where their 18 location would be? 19 A I think they asked for a specific location, and I 20 believe I told them I couldn't provide a specific 21 location. 22 Q And why did you tell them you could not provide a r 23 specific location? 24 A We don't have any specific locations yet. At 25 least not that I know of. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 134 23 Q Retail A is out where -- 24 A Circuit City currently is. 25 Q Circuit and Wells Fargo, right? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 135 4 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A There is no Wells Fargo. 2 Q It's empty? 3 A It's an empty billing. 4 Q With holes in the roof. 5 A With holes in the roof. 6 Q And Bed Bath& Beyond, is this location specific, 7 this LOI? Are they going in that space? 8 A They may not be now. At that point Circuit City 9 was telling us they either wanted to be somewhere else in 10 the center or they wanted to leave the center. 11 Q Now is this a correct date, September 29, 2000, 12 on Exhibit 334? 13 A It is not. 14 Q Was it over the summer, is it 1999? 15 A I don't know. What I can do is if you give me 16 the letters with the September 29 date, I can get you 17 actual dates. My computer updates the date when I open 18 the document. And I thought I had changed everything to 19 the actual date. But obviously I missed some. 20 Q All right. We'll leave a blank in the transcript 21 and please let me know the correct date of Exhibit 334? 22 MR. SHIPOW: Actually I don't like leaving blanks in 23 the transcript. If you want to put together a letter with 24 additional things you want or information, that's fine. 25 MR. TUCHMAN: Okay. Well, I'm going to ask you right ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 136 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 now. I will send you a letter. 2 MR. SHIPOW: Sends me a letter. 3 MR. TUCHMAN: 334, I'd like the correct date, okay? 4 BY MR. TUCHMAN: 5 Q Okay. So does that apply anymore, this 6 specific, have you written him a letter, meaning Bed Bath 7 & Beyond, saying you may not get A, space A? 8 A There has been no negotiation in a formal lease 9 at this point. 10 Q When you had a meeting, when did you have this 11 meeting with the Bed Bath& Beyond people? 12 A I don't recall the date. 13 Q Was it in the summertime? 14 A I don't recall. I'd have to look at the date of 15 the letter. 16 Q Well, okay. Right. 17 Is your computer networked with anybody else's? 18 A No. 19 Q Looks like a lot of letters to Bed Bath& Beyond, 20 all dated September 29, 2000. What was going on? 21 A Negotiations. 22 Q Is a negotiation usually around a price? 23 A No. 24 Q Has -- 25 A That's part of it, but. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 137 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q What does it usually focus on, what are the 2 sticky points? 3 A Lots of things, price, delivery, price and 4 delivery are typically the big sticking points. 5 Q What does that mean, delivery? 6 A What we're going to provide to them in terms of a 7 building. 8 Q Meaning a shell or shell plus? 9 A Right. 10 Q Is it ever a discussion about the condemnation or 11 when you guys are going to break ground or anything 12 regarding redevelopment? 13 A From me, no. If there were dates provided,they 14 were provided from somebody else. 15 Q A couple of tenants have complained about dates, 16 right? 17 A Not to my knowledge. 18 Q Burke Williams, B-u-r-k-e, Williams. What kind 19 of outfit are they? 20 A Day spa. 21 Q Did they sign an LOI? 22 A No. I' 23 Q Are they going to? Do you know? 24 A I don't know. 25 Q Is that dead, do you think? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 138 1 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A I hope not. 2 Q Why do you hope not? 3 A I'don't like to see deals die. Deals die, I have 4 an empty wallet. 5 Q Don't want that. 6 This exclusivity I notice is put as one of the 7 topics there. Exclusivity is something where some tenants 8 absolutely need it to survive? 9 A Yes. 10 Q You said Burke Williams is a spa? 11 A Day spa. 12 Q Are there any other spas you've been negotiating 13 with? 14 A We have talked to other day spas. 15 Q Which ones? 16 A Amadeus. 17 Q Do they have an LOI out? 18 A I don't believe so. I think we've just had 19 meetings. 20 Q Okay. You don't want to have LOIs out if they 21 want exclusivity; am Fright? 22 A I don't know that that's relevant. 23 Q Busy Bee. What's Busy Bee? 24 A Quick service Chinese food. 25 Q LOI signed? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 139 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 A No. 2 Q Are they going to sign as far as you know? 3 A No. 4 Q They're not going to sign? 5 A No. 6 Q Why not? 7 A Rent. 8 Q Too much rent? 9 A Yeah. - 10 Q Next, you wrote to Circuit City in August of'99. 11 I'm looking at HCA 631; is that right? 12 A Okay. Yes. 13 Q Scott Godino. I think you mentioned his name 14 before? 15 A Yes I did. 16 Q Now has the LOI been signed with them? 17 A No. 18 Q They want 32,446 square feet. Location is 19 labeled P on site plan one which is part of 332, correct? 20 A I don't know. It's possible. It is one of the 21 older site plans. 22 Q Let's find P. Where do they want to move? Can 23 you find P for me, please? Thank you. 24 A I'm not positive, but this looks like P here, in 25 terms the box is that size. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 140 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Right near the old Burlington location. Okay. 2 And they have, they wanted 32,000 square feet 3 which is about ten thousand improvement, correct, over 4 what they have now? 5 A I believe they're slightly smaller than 26 6 thousand now. 7 Q That hasn't been signed you said, right? 8 A That is correct. 9 Q Do you know if it's going to be signed? 10 A I do not. 11 Q When was the last time you spoke to Scott Godino? 12 A Yesterday. 13 Q What did he say? 14 A He said a lot of things. He's negotiating his 15 LOI. 16 Q With you? 17 A And Doug. 18 Q He's going over your head? 19 A I report to Doug. I don't unilaterally make 20 decisions. 21 Q What did he say about his discussions with 22 Westminster? 23 A He doesn't say a lot about it, other than he has 24 negotiated there. 25 Q He's basically playing the two of you against ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 141 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 each other? 2 A No, I think he was trying to not tell us he was 3 negotiating in Westminster, until we found out about it. 4 Q How did you find out? 5 A Westminster called Jim Lam. Jim Lam called me 6 and asked me if Circuit City was moving to Westminster. 7 Q Okay. Euro Chow,they sign an LOI? 8 A No. 9 Q Do you know if they are going to? 10 A They are not. 11 Q Why not? 12 A I don't know their reason. 13 Q Okay. China Express? 14 A Yes. 15 Q They signed an LOI? 16 A They did. 17 Q 18 hundred square feet? 18 A Okay. 19 Q Does that sound right? Take a look at 68, HCA. 20 A That's what the LOI says. I don't know if this 21 is the one that was signed. Tenants of this nature 22 fluctuate in size. 23 Q Does 18 square feet sound about right? 24 A It sounds about right, give or take a hundred 25 feet, depending what they want. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 142 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q What is this? Is this as fast as -- 2 A Quick service food. 3 Q Quick service what we're using now? 4 A They make,it to order. 5 Q Okay. Kind of like a Panda Express? 6 A Correct. Although I believe Panda uses sternos. 7 Q Uses what? 8 A They keep the food hot like buffet lines. 9 Q I see. If I'm going through, it looks like 10 they're the same, but I can't tell. 11 A It's probably response to response. 12 Q You mean when I see multiple copies of stuff for 13 example regarding China Express, it's probably that one 14 was marked up and sent back and there was some negotiating 15 going back and forth? 16 A Correct. 17 Q Okay. Chico's. LOI signed? 18 A No. 19 Q Do you know why they didn't sign up? 20 A Still in process. 21 Q Okay. So they may still sign up? 22 A They may. 23 Q They want 2500 square feet? 24 A Uh-huh. 25 Q Is that a yes? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 143 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A Yes. 2 Q Chevy's, C-h-e-v-y, apostrophe s. What is that? 3 A Mexico restaurants. 4 Q Have they signed up? 5 A No. 6 Q Are they going to? 7 A No. 8 Q What's the problem? 9 A We did an On the Border deal. .10 Q Charley's, C-h-a-r-l-e-y, apostrophes, Steakery. 11 Sign them up? 12 A No. 13 Q Do you know if they're going to sign up? 14 A I don't know. 15 Q LOI still pending? 16 A Yes. 17 Q 58 hundred square feet sound right? 18 A Sure. I don't know their exact size. 19 Q They're smaller? 20 A Quick service food. 21 Q Century Theaters shell building. What does that 22 mean? 23 A 4 walls and a roof. 24 Q Is this a pad? Is this going to be located on a 25 separate pad or part of the mall? I'm looking at 657 and ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 144 . ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 658, HCA. 2 A I believe this would be for second level space. 3 Q I see. 4 MR. TUCHMAN: I'm going to mark that as 335. 5 MR. SHIPOW: What's the bates number? 6 MR. TUCHMAN: HCA 657.and 658. 7 BY MR. TUCHMAN: 8 Q Century still in the running? 9 A Yes. 10 Q Have they signed an LOI? 11 A No. 12 Q They want about 85 thousand square feet? 13 A Yes. 14 Q There's going to be a theater in there no matter 15 what; am I right? 16 A You may have a crystal ball. We would like there 17 to be a theater in the project. 18 Q Well, you-need one for traffic. You need to sell 19 to the other tenants. 20 A I disagree. We would like to have a theater 21 project. 22 Q Okay. Dave Buchholz, B-u-c-h-o -- I 23 B-u-c-h-h-o-1-z. Is he a broker? 24 A Yes, he is. 25 Q He's at Trammel, T-r-a-m-m-e-1, Crow, C-r-o-w, ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 145 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 up in Foster City. 2 Next one is C & R Diamonds. You sign them up? 3 A No. 4 Q Are they going to sign up as far as you know? 5 A No. 6 Q What's the problem with_them? 7 A They moved to another center. 8 Q Weren't they in the mall before? 9 A Yes. 10 Q They're a little mad at you guys, right? 11 A Not to my knowledge. 12 Q He was right next to Burlington Coat Factory? 13 A Was he? 14 Q I think so. Okay. 15 Next, letter to Scott Godino,this is 36 thousand 16 square feet. 26 plus 10 on top. Is this an older 17 proposal? 18 A This would be a newer proposal. 19 Q Is this where they're going to stay but get a 20 second floor? 21 A Correct. 22 Q Is that the one that's now being contemplated? 1 23 A Yes. 24 MR. TUCHMAN: I'll attach that as 336. It's HCA 664 25 through 666. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 146 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 BY MR. TUCHMAN: 2 Q Think they're going to sign up? 3 A I don't know. 4 Q Got to work on your dates on your computer. 5 A Okay. 6 Q Carl's Jr., are they moving in? 7 A No. 8 Q What happened to them? 9 A I think Carl's Jr. stopped doing development for 10 a while. 11 Q They overextended themselves? 12 A I don't think they're doing too well. 13 Q Okay. You had a lot of correspondence with 14 them. You have negotiations back and forth? 15 A Considerable. 16 Q Can be tiring I assume. 17 A It can be. 18 Q Okay. Scott Horsley, CB Richard Ellis out of 19 Anaheim is the contact person; is that right? 20 A Yes. 21 Q Here it is. Coldstone Creamery? 22 A I think you told me they signed up, correct? 23 A Yes. 24 Q You said under 15 hundred square feet this one 25 says about a thousand, minimum thousand. They have a ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 147 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 radius restriction in there? 2 A That would say none. 3 Q Okay. In Cold's, in your LOI to Cold's did you 4 give them some type of exclusivity? 5 A No. 6 Q Did you do this radius thing? 7 A Doubtful. 8 Q Okay. 9 A That's typically a tenant-driven request. 10 Q They want to protect their income. 11 A lot of discussions with Coldstone? 12 A Yes. 13 Q Some people like to negotiate; is that right? 14 A That's true. 15 Q Okay: I think you told me Clothestime did sign 16 up; is that right? 17 A Yes. 18 Q It says approximately 3500 square feet. You told 19 me 2000 before. Is 3500 more accurate? 20 A Okay. 21 Q Is that right? 22 A I thought I said larger than 2000 I think. 23 Q Okay. And they signed off their LOI in the past 24 three months? 25 A Yes. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 148 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q A lot of discussion with Clothestime aye? 2 A Yes. 3 Q Claim Jumper restaurants? 4 A Uh-huh. 5 Q All right. Did they Claim Jumper sign up? 6 A No. 7 Q Why didn't Claim Jumper sign up? 8 A Just stopped negotiate. 9 Q ing when did you stop negotiating? 10 A It's been quite some time. 11 Q That was also a pad right? 12 A I believe it was. 13 Q This was September 29, 2000. Would I be right 14 that you may have printed out all these letters on 15 September 29, 2000? 16 A That was probably based on this request. 17 Q Exhibit,the notice of depo, 330. That sounds 18 like you printed them all out on that day? 19 A Yeah because I keep, I don't put my letters to, 20 tenants in the books I referred to. Those stay in my 21 computer and I printed all those out for you. 22 Q I see. All right. Thank you. Edwards theater, 23 1999. Is it Edwards that went bankrupt? 24 A Yes. 25 Q You're not doing anything more with them? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 149 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 A We have had continued discussions with them. 2 Q Are you going to sign up with them? 3 A That's not my decision. 4 Q Is there an outstanding LOI with Edwards? 5 A No. 6 Q Ground level theater, what's that? Oh,that's 7 Edwards. Okay. ` 8 CPK, they signed up? 9 A Correct. 10 Q That's a lot of info in there. 11 Okay. You dealt with Neal Rosenfield out of 12 Chicago; is that right? 13 A Correct. 14 Q Your phone bills must be huge. All right. 15 Next, Cost Plus World Market, is that the same as 16 Cost Plus we talked about earlier? 17 A Yes. 18 Q And their LOI is signed. It's about 18 thousand 19 square feet? 20 A Correct. 21 Q El Torito Grill, LOI not signed? 22 A Correct. 23 Q Because their competition signed up? 24 A Correct. 25 Q That would also have been for a pad, correct? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 150 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A Yes. 2 Q Jason, Gordon and Karen Klein. They are brokers 3 at Epstein, E-p-s-t-a-i-n, and Associates. William Sonoma 4 Elm Street contacts? 5 A That's correct. 6 Q No LOI yet? 7 A Sorry? 8 Q Any LOI signed yet? 9 A No. 10 Q Do you think they're going to sign? 11 A I don't know. 12 Q What's the status.on that? 13 A Open. 14 Q As I recall,they want 30 thousand square feet? 15 A Correct. 16 Q What is DCI, Randy Baugh? 17 A He is the broker for Elephant Bar. 18 Q Okay. Elephant Bar,they signed up, right? 19 A Correct. 20 Q Over 7 thousand square feet? 21 A Yes. 22 MR. SHIPOW: How about if we take a lunch break? 23 MR. TUCHMAN: One more question. 24 BY MR. TUCHMAN: 25 Q Edwards is dead now, correct? Edwards Cinema? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 151 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 MR. SHIPOW: That's not what he said. . 2 THE WITNESS: That is not what I said. 3 BY MR. TUCHMAN: 4 Q Edwards is no LOI outstanding? 5 A That's correct. 6 MR. TUCHMAN: Let's take a break. 7 (Lunch recess taken.) 8 MR. TUCHMAN: Let's go back on the record. 9 BY MR. TUCHMAN: - 10 Q CPK is there, has an LOI signed, 5 thousand 11 square feet? 12 A Yes. 13 Q Jim Ryan at Cyprus Retail Properties. What type 14 of tenant was he? 15 A He works with Scott Manclark. 16 Q And-- 17 A I think for this project he is working with 18 Bamboo Club with Scott. 19 Q Okay. Looks like there were a bunch of letters 20 in April. What was that all about, April of 2000? 21 A I have no idea. Who are they addressed to? 22 Q Manclark and Ryan. 23 A They'd be regarding those tenants. 24 Q Islands,they signed up? 25 A Yes. ***THIS IS AN UNEDITED,UNCERTIFIED TRANSCRIPT* 152 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q 55 hundred square feet? 2 A Correct. 3 Q Il Fornaio, F-o-r-n-a-i-o. Do they have an LOI? 4 A No. 5 Q Do you expect they will sign one off? 6 A No. 7 Q Why not? 8 A Buca Di Beppo. 9 Q Can you spell that? 10 A Which one? 11 Q Buca-- 12 A Buca Di Beppo. 13 Q What's with Horizon Beauty? 14 A That is not ringing a bell. 15 Q Renato Cajayon, C-a j-a-y-o-n. HCA 803. 16 A I believe they were in the mall. 17 Q Okay. Did they sign an LOI? 18 A No. 19 Q What's your contact with Hallmark Cards? Did 20 they sign an LOI? 21 A There's not a signed LOI. 22 Q Is there one outstanding? 23 A There wasn't, but they called me a week and a 24 half ago and wanted to know if they can start talking 25 about the deal again. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 153 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q How many square feet? 2 A I don't know. 5,000-ish. 3 Q California Squeeze & Garden Gourmet. Do they 4 have an LOI? 5 A Not signed, outstanding. 6 Q How many square feet? 7 A I don't know. 8 Q What type of store is that? 9 A Juice, fresh squeezed juice bar and salad bar. 10 Q Now you have a letter here to Epstein& 11 Associates, says Old Navy, Gap and Banana Republic. 12 They're all owned by the same place? 13 A Correct. 14 Q Who owns them now? 15 A Gap. 16 Q Which one are you interested in? 17 A Old Navy. 18 Q There's an LOI out to them? 19 A Yes. 20 Q How many square feet? 21 A 20 thousand square feet. 22 Q Do you expect those signed? 23 A I don't know. 24 Q What's the status? 25 A Pending. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* -154 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Now you, would you have an Old Navy, a Gap and 2 Banana Republic in one mall? 3 A You could. 4 Q Is that what you want to happen in this mall? 5 A There won't be, but you could. 6 Q Okay. And with the proposal you have 7 outstanding, what's the dollar amount outstanding for Old 8 Navy? 9 MR. SHIPOW: Objection. Proprietary information. 10 Instruct the witness not to answer. 11 Are you just trying to slip those by me? 12 MR. TUCHMAN: See if you're awake. I actually do want 13 to have the information. I wasn't sure you were paying 14 attention. 15 BY MR. TUCHMAN: 16 Q Krispy Kreme,they have signed up? 17 A Yes. 18 Q You mentioned Kohl's, K-o-h-1, apostrophe s. It 19 says build to suit on HCA 838. 20 A Okay. 21 Q What does that mean? 22 A We would build their building per the tenant's 23 plans and specifications. Now, what is not in here is 24 that we have the right to review their plans and 25 specifications before we actually sign the document and ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 155 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 agree to build what it is they want. 2 Q Now are they signed off on the LOI? 3 A No. 4 Q There is one that's outstanding? 5 A Yes. 6 Q And they're very interested? 7 A They're interested. ` 8 Q Okay. 9 A Don't know if you'd use the word very. 10 Q You said 30 thousand square feet? 11 A Kohl's is over 80 thousand square feet. 12 Q And the price per square foot? 13 MR. SHIPOW: Objection. Instruct the witness not to 14 answer. 15 MR. TUCHMAN: Exhibit 337 will be HCA 838 through 16 840. And it's to -- 17 MR. SHIPOW: Sorry. Didn't get those numbers. 18 MR. TUCHMAN: 838 to 840. 19 MR. SHIPOW: That's exhibit 337? 20 MR. TUCHMAN: It is. 21 Kohl's build to suit. To Mike Distel, 22 D-i-s-t-e-1, June 7, 2000. 23 BY MR. TUCHMAN: 24 Q Joseph A. Bank, what is that? 25 A Men's suits. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 156 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q They have,an LOI out? 2 A There is an LOI out. 3 Q How many square feet? 4 A Don't know. Don't recall. 5 Q Greater than 5 thousand? 6 A I honestly don't recall. I think it may be less 7 than 5 thousand or about 5 thousand. 8 Q Do you expect they will be signing off? 9 A I don't know. 10 MR. TUCHMAN: There's a document from Jillian's. It's 11 dated September 29, 2000, but must have been printed from 12 your computer. It's HCA 844 through 854, about ten 13 pages. Take a look-at that. That will be 338. 14 BY MR. TUCHMAN: 15 Q Can you tell me what that is? 16 A I would suspect it's an LOI form. 17 Q All top secret stuff. Okay. If it's an LOI 18 form, for the record, ten pages of blanks. What is it? 19 Are there things that they have added to the LOI, 20 Jillian's? 21 A Yeah,this is a tenant that's going to be using I 22 their own lease form. And in the LOIs they need certain 23 provisions, I guess, from that lease in the letter of 24 intent which is why it's longer than three pages. 25 Q What is Ascott, A-s-c-o-t-t, Group? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 157 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 A That's their broker. 2 Q Broker for Jillian's? 3 A Jillian's. 4 Q Okay. You have a number of letters looks like in 5 April and March of 2000. Again this is one of those 6 situations where you have back and forth? 7 A Correct. 8 Q Okay. The broker is Scott Bobrow, B-o-b-r-o-w; 9 is that right? 10 A Yes. 11 Q La Jolla, California. 12 Mark Mim from Hub Distributing again. This time 13 it's re Levi Dockers. Wasn't it Blue Anchor before? 14 A Anchor Blue. 15 Q Is there a different store? 16 A Yes. 17 Q Did he sign a LOI? 18 A No. 19 Q Do you know why he didn't? 20 A .He was trying to get the franchise rights for a 21 Levi store which he was unsuccessful in getting. 22 Q On the Border,you do have a pad; is that 23 correct? 24 A Yes. 25 Q And how many square feet is On the Border? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 158 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A They are allowed to build up to ten thousand 2 feet. 3 Q And I believe that's on Edinger up closer towards 4 Beach? 5 A Correct. 6 Q And that LOI is signed as I recall, correct? 7 A Yes. 8 Q Okay. Now, did you independently try and get Old 9 Navy through Mr. Mansour, M-a-n-s-o-u-r? 10 A I don't understand what you mean by 11 independently. 12 Q Well previously we saw a letter that went to 13 either Old Navy or Gap or Banana Republic. Now this is 14 Old Navy, HCA 888? 15 A The initial letter was to all concepts to see if 16 any of the concepts would have interest. When the Old 17 Navy concept showed interest and they told us the other 18 concepts would not be interested,that's when it went to 19 Old Navy. 20 Q What's the various levels between Old Navy and 21 the Gap and Banana Republic? Which is higher or lower or 22 all equal? 23 A I.think they're all relatively the same. The 24 issue with the Gap and Banana Republic is that they're in 25 South Coast Plaza, a radius out of this project. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 159 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q What is Nordic Track Health Rider? 2 A Health equipment. 3 Q Have they signed an LOI? 4 A They have not. 5 Q Do you expect they will? 6 A No. 7 Q Why not? ` 8 A That's an old LOI with no follow-up from the 9 tenant after calls in. 10 Q McDonald's Corporation? 11 A (No audible response.) 12 Q You have an offer to give them a ground lease? 13 A Correct. 14 Q What does that mean? They build their own store? 15 A Correct. 16 Q What's the story with them? Is there an LOI 17 signed? 18 A No. 19 Q Are they going to be going in? 20 A No. 21 Q Why not? 22 A They decided to pass. 23 Q Okay. When was your last contact with 24 McDonald's? 25 A I don't know what time. It's been quite awhile. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 160 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Meaning more than six months? 2 A Probably. 3 Q You've also been in contact with Alan Benjamin at 4 Lowes, L-o-w-e-s, Cineplex? 5 A ,Correct. 6 Q Alive or dead? 7 A I-would suspect quite dead. 8 Q Chris Frederick, Commercial West Brokerage. What 9 tenant? 10 A Opah, O-p-a-h, Fish. 11 Q Is that a restaurant? 12 A Yes. 13 Q LOI signed? 14. A No. 15 Q Do you believe it will be signed? 16 A No. 17 Q Why not? 18 A I don't know that they're expanding. They're 19 held by just husband and wife. Little expensive to do a 20 lot of deals. 21 Q Quizno's, Q-u-i-z-n-o, apostrophe s. LOI signed? 22 A No. 23 Q Do you expect.one will be signed? 24 A No. 25 Q Why are they not pursuing? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 161 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A Subway. 2 Q Ken Gould at Lee and Associates. He's the broker 3 that handles the Pizzarito deal? 4 A Yes. 5 Q Paul Phillips, Commercial Real Estate Brokers, 6 what deal is he involved in? 7 A Also men's suits. I don't recall the name of the 8 tenants. 9 Q They signed an LOI? 10 A No. 11 Q Why not? 12 A Sitting on their hands to see what happens with 13 the development. 14 Q Okay. Pet Smart or Pets Mart? 15 A Petsmart. 16 Q Has Petsmart signed an LOI? 17 A No. 18 Q Do you know if they're going to? 19 A I would suspect they're not. 20 Q Why not? 21 A They're not doing a lot of expansion right now. 22 Q Pacbell Wireless. What is the status with them? 23 A LOI. 24 Q They are signed up? 25 A Yes. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 162 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Small stores though, right? 2 A Very. 3 Q How many square feet? 4 A Possibly less than a thousand or maybe, somewhere 5 around a thousand square foot number. 6 Q Oscar's. What is the status with them? 7 A Dead. 8 Q Was that a restaurant? 9 A Yes. 10 Q Gary Frederick, Reference, The Crossings at 11 Huntington. Is that that unnamed men's store? 12 A No, Reference is a women's apparel. 13 Q Oh, it's a name of the store? 14 A Yes, Reference is the name of the store. 15 Q LOI signed? 16 A Yes. 17 Q And you say they're women's clothing? 18 A Correct. 19 Q How many square feet on the LOI? 20 A I believe 5 thousand. 21 Q And have they, were they location specific? 22 A No. 23 MR. TUCHMAN: I'm going to ask the reporter to mark as 24 339. HCA 938 through 940. Dated May 12, 2000. . 25 BY MR. TUCHMAN: ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 163 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Is 339 the LOI? 2 , A This wouldn't have been the signed LOI. Well, I 3 shouldn't say that. It's possible. We counter back and 4 forth on that deal. 5 Q For the record, yeah, there are a few other 6 letters dated June 8, 2000,August 29, 2000.. 7 Ken Shisheido, S-h-i-s-h-e-i-d-o. He was the 8 broker from Lee and Associates who handles the Ruth's 9. Chris? 10 A Correct. 11 Q How many other Ruth's Chrises are there? 12 A I don't know an exact number. 13 Q Their LOI is signed off, right? 14 A Correct. 15 Q Rocky Mountain Chocolate Factory. Is this LOI 16 signed? 17 A No. 18 Q Do you know why it's not been signed? 19 A Waiting status of deal. 20 Q You expect they will be signed off? 21 A I don't know if they will or it will be a 22 different one. 23 Q Small square footage, as I understand? 24 A Extremely. 25 Q Restoration Hardware, LOI signed? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 164 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 Q LOI pending? 3 A Probably not. 4 Q Why do you think they're not going to go in? 5 A Well, they're having financial troubles. I don't 6 know that he want them there. 7 Q Great Steak& Potato Company. Status of LOI? 8 A Open. 9 Q Not signed yet? 10 A No. 11 Q How many square feet? 12 A They will probably be in the thousand to 15 13 hundred range. 14 Q Moving on. Vic Montalbo, Epstein& Associates. 15 Tenant name,please? 16 A Staples. Well, he represents a few different 17 tenants. Probably it's Staples. 18 Q Didn't you have already an Office Depot? 19 A No we have a Staples, 19 thousand feet, smaller 20 than prototypical. Both Staples and Circuit City are 21 under-sized stores. 22 Q Has Staples signed an LOI? 23 A No. 24 Q Has any client from Vic Montalbo, Epstein& 25 Associates, signed an LOI? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 165 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 Q How many square feet does Staples want? 3 A They're prototype is 24 thousand feed. 4 Q Right now they have 18? 5 A 19. 6 Q You also were dealing with Amy Zeytoonian at 7 Staples? 8 A Yes. Never spoke with her. He just asked me to .9 address a letter to her. 10 Q William Sonoma family, is that Kohl's? 11 A No,that's Elm Street. 12 Q All right. Skechers, S-k-e-c-h-a-r-s. What is 13 that? 14 A Shoes. 15 Q They sign an LOI? 16 A No. 17 Q What's the status of that? 18 A Open. 19 Q Do you expect they will sign up? 20. A They're waiting for status of deal. 21 Q What does that mean,they're waiting for status 22 of deal? Whether the place is going to be redeveloped or 23 not? A Yup. They want to know what's going to 24 happen, what it's going to be. 25 Q Okay. And you can't answer that question ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 166 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 exactly, can you? 2 A I don't have an answer. 3 Q Next Street Corner News. What's that? A 4 newsstand? 5 A Yes. 6 Q They sign their LOI? 7 A No. 8 Q Do you know if they're going to? 9 A They too are waiting to find out what it is 10 that's going to be built. 11 Q Pentz, P-e-n-t-z, & Partners for TJ Maxx? Sign 12 up? 13 A No. 14 Q Were they going to sign up? 15 A No. 16 Q Why was that? 17 A That would be a rent issue. 18 Q Next Taps Fish House and Brewery. LOI signed? 19 A No. 20 Q Do you know if it's going to be signed? 21 A Pending. 22 Q How many square feet involved with them? 23 A Approximately ten thousand. 24 Q Huntington Surf& Sport. I believe you already 25 said they signed off an LOI? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 167 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A -Yes. 2 Q What outfit is Linda Crawley of Urban Street 3 Advisers representing? 4 A May I see the letter, please? 5 Q Sure. HCA 979 through 981. Just an address 6 there and you have three blank pages. 7 A I believe that it's a tenant called the Yard 8 House. Let me back up. She said they might be 9 interested. That was for Salt Creek Grill. 10 Q Okay. And a Salt Creek Grill signed an LOI? 11 A No. 12 Q Do you believe they will? 13 A No. 14 Q Dr. David Stein. That's an existing tenant? 15 A Yes. 16 Q Has he signed an LOI? 17 A Yes. 18 Q How many square feet? 19 A I believe 17 hundred. 20 Q That's the name of the business Dr. David Stein? 21 A I believe it's called Stein Optometry. 22 Q Any other existing tenants signed LOIs besides 23 Stein Optometry? I guess this is a hard question, 24 depending what period of time you're talking about. 25 A I don't, none that are coming to the top of my ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 168 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 head. 2 Q Okay. Jeff Moore, CB Richard Ellis, who is he 3 representing? 4 A Jeff works with Scott Horsley who rep'ed 5 Huntington Surf& Sport and Carl's Jr. 6 Q Thank you. You talked with Great Indoors for, 7 from what time period to what time period prior to the 8 LOI? Did you talk with the Great Indoors, period of 6 9 months? 10 A I don't know. 11 Q Most of your negotiation took place in March and 12 April? 13 A I don't recall. 14 Q Topz, T-o-p-z, location, LOI signed? 15 A Yes. 16 Q How many square feet? 17 A I think less than 2000. 18 Q What is that? 19 A Burgers. 20 Q Virgin Entertainment. Is there an LOI signed? 21 A No. 22 Q Do you expect one will be signed with Virgin ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 there an LOI signed? 2 A No. 3 Q Do you expect one will be signed? 4 A Don't know. 5 Q How many square feet is that proposal? 6 A Don't recall. It's smaller. 7 Q Tower Records. Has Tower Records signed an LOI? 8 A No. 9 Q Do you expect they will? 10 A Don't know. 11 Q How many square feet? 12 A I believe 15 thousand. 13 Q What are they waiting for, if you know? 14 A The broker was running it through the real estate 15 department's decision ladder. It has been quite some time 16 and he's not returned a couple calls, so I would suspect 17 it's pending or he passed. 18 Q Tony Penn,P-a-n-n, of Thousand.Oaks. He's the 19 broker? 20 A Yes. 21 Q Okay. The Walking Company. Have they signed an 22 LOI? 23 A They have not. 24 Q Do you expect they will? 25 A I don't know. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 170 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 Q How many square feet? 2 A 2 to three. 3 Q 2 to three thousand? 4 A 2 to three thousand. 5 Q What is The Walking Company? 6 A Just what it sounds like. They specialize in 7 items, walking sticks, shoes, hiking. 8 Q Thank you. The Wok, W-o-k, Inn, I-n-n. LOI 9 signed?. 10 A No. 11 Q Do you expect one will be signed? 12 A No. 13 Q You wrote a letter to Z Watch?- 14 A Yes. 15 Q Did Z Watch sign an LOI? 16 A No. 17 Q Do you expect they will? 18 A No. 19 Q Now Brent Howell,he was the broker for the Great 20 Indoors? 21 A Yes. 22 Q Did to Great Indoors tell you why they're 23 interested in the Wards space? 24 A No. 25 Q And they specified that they have to be in the ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 171 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Wards space; otherwise,they don't want to be in the mall? 2 A I haven't heard that. I don't know if that's 3 true or not. 4 Q Is the LOI contingent upon Wards leaving? 5 A I don't know the exact verbiage in the lease. 6 Q Is there something like that in the lease? 7 A I believe there's contemplated redevelopment 8 verbiage through the LOI in the lease. 9 Q Now there's a letter, October 2, 2000, to Anchor 10 Blue. HCA 1261, 1262. Is that an accurate date? In 11 fact, I note there's a whole series of documents that are 12 all dated October 2. And they're 2-page letters. But of 13 course they're all blank. 14 A These are the, I would suspect-- is there a 15 large group? 16 Q Yes. 17 A Yeah. These are the form letters that go out 18 with the marketing package. 19 Q What does that say? 20 A This is the marketing package. This is, you 21 know, it's very similar to the description page in the 22 marketing package,just a letter stating what they're -23 looking at, to contemplate a redevelopment of the site, 24 and thank you for reviewing the package. 25 MR. TUCHMAN: I really don't see how that has any. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 172 I 23 New Balance? 24 A No. 25 Q The Body Shop? ***THIS IS AN UNEDITED; UNCERTIFIED TRANSCRIPT*** 173 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 Q Brandon Importing? 3 A No. 4 Q Niccole Miller? 5 A No. 6 Q All Wound Up? 7 A No. 8 Q Greenberg Group,the Water Works? 9 A No. 10 Q Siopa, S-i-o-p-a, Sports? 11 A No. 12 Q Catz& Associates, Prints Plus? 13 A No. 14 Q Cinnabon International? 15 A No. 16 Q QVC at the mall? 17 A No. 18 Q Euro Star, Inc.? 19 A May I see that, please? 20 Q HCA 1291 through 1292. 21 A No. 22 Q Kernels, K-e-r-n-a-1-s, Extraordinary Popcorn? 23 A No. 24 Q Catz& Associates, Galyan's, G-a-1-y-a-n, 25 apostrophe s. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 174 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No LOI. 2 Q Now, you corresponded with Mark Brown and Mary 3 Englebright. Do you know who they were representing? 4 A Mary Englebright is the store, not a person. 5 Q What's Mary Englebright? 6 A They sell, it's like small pottery, almost like 7 teacup, it's very overpriced knickknack. 8 Q LOI? 9 A No. 10 Q Michael Dubin, 348 14th Street. I don't know the 11 name of the business. 12 A May I? 13 Q 1299 through 1300 HCA. 14 A I believe Michael Dubin is the rep for-- 15 there's an LOI. Restaurant. The name of it's right on my 16 tongue. Huge portions of food. You said it earlier. 17 You raised an eyebrow. 18 MR. SHIPOW: Claim Jumper? 19 THE WITNESS: Claim Jumper. Dubin is the rep for 20 Claim Jumper. 21 BY MR. TUCHMAN: 22 Q Claim Jumper signed up with you? 23 A No, but there as an LOI. 24 Q There's an LOI, but it wasn't signed? 25 A Right. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 175 23 2147. 24 BY MR. TUCHMAN: 25 Q There are Huntington Beach proposals received ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 176 I ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 and/or working on. And it looks like some kind of list 2 here. Would you tell me what 340 is, please? 3 A It's an early list of, fairly early list of 4 potential contacts,people that I was planning on sending 5 marketing brochures to. Some of them are, in fact I think 6 is noted by asterisks, tenants that Macerich had sent, had 7 given us information on, provided. But it's just an early 8 tenant list of people that I was going to talk to. 9 BY MR. TUCHMAN: 10 Q Did you ever talk to anybody at Macerich? 11 A Yes. 12 Q Who? 13 A The gentleman that was doing the leasing, Steve 14 Raoush is the person who would represent Street Corner 15 News. He asked for a marketing brochure and he brought 16 that tenant to the table. He would be the broker we would 17 be paying on that. 18 Q Now, of the list that you have here --.by the 19 way, you prepared this list of prospective tenants? 20 A I prepared that document,yes. 21 Q When you take a look at this list, are you able 22 to look through it and find other names of tenants that 23 have actually signed LOIs? 24 A Other than who we've already talked about? 25 Q Yes. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 177 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 Q Thank you. Now, I notice that in some of your 3 materials you had some old Macerich materials; is that 4 correct? 5 A That is correct. 6 Q Where did you get those from? 7 A They were sent to me during our process of 8 purchasing the properties. 9 Q In your due diligence? 10 A They were sent to me during the process of 11 purchasing the property. I don't do due diligence on our 12 projects. Someone may have asked me to send them the list 13 of leasing contacts. 14 Q Why did you look at some of the Macerich 15 materials? 16 A Prospective tenants. 17 Q Solely for the information of who to contact 18 because they may have been interested before? 19 A Correct. 20 Q AMC is out of the picture? 21 A Yes. Unless they get healthy. 22 Q Interesting plan that AMC submitted. Was this 23 plan HCA 2170 that's been completely redacted because it's 24 highly sensitive and confidential information in it? What 25 did it show? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 178 23 Q Okay. You're still waiting on other LOIs, 24 correct? 25 MR. SHIPOW: He's gone through them sort of ad ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 179 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 nauseum. 2 THE WITNESS: Yeah. I'm not sure I understand the 3 question. 4 BY MR. TUCHMAN: 5 Q There's a lot of LOIs that still can come in-- 6 let me rephrase the question. You haven't leased up the 7 place, have you? 8 A No. 9 Q Would you say you're 50 percent leased up? 10 A I don't look the square foot totals. I just 11 bring tenants to the table. I couldn't tell you. 12 Q You haven't over leased it, have you? Well, have 13 you? 14 A No. 15 Q Okay. Someone would tell you to stop,right? 16 A I don't know. I would hope. 17 Q Okay. It looks like you got a lot of 18 specifications from Beverages& More. 19 A Yes. 20 Q And the reason for that is? 21 A Again, interior build out, delivery. 22 Q A lot of materials from Bed Bath& Beyond, kick 23 off meetings'and certain discussions about, lot of 24 discussions prior to the LOI being signed; am I correct? 25 A I don't recall. I remember one phone call, but I ***THIS IS AN UNEDITED,UNCERTIFIED TRANSCRIPT*** 180 ***THIS IS AN UNEDITED,.UNCERTIFIED TRANSCRIPT*** 1 don't remember a number. 2 MR. TUCHMAN: Take a look at, I'll ask the reporter to 3 mark as exhibit 341. It's HCA 2243 through 2248. 4 BY MR. TUCHMAN: 5 Q Do you recognize three 4 1? 6 A Would have been one of the LOIs. 7 Q Do you see the site plan at the end there? 8 A I do. 9 Q That wasn't prepared by one of the tenants was 10 it? 11 A No, it matches the earlier site plan you looked 12 at. 13 Q Under 332 of the tenant marketing package, 14 correct? 15 A Uh-huh. 16 Q Is that a yes? 17 A Yes. 18 Q Thank you. Was it common for the LOIs to have 19 the site plan corrected to it? 20 A No. 21 Q That's unusual? 22 A Not unusual,but it's not common. 23 Q About how many LOIs have the site plans attached 24 to it? 25 A I don't know. Not many. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 181 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q And that's because the LOIs are not specific to 2 any location within the mall? 3 A That's correct. 4 Q Any LOIs signed by Baja Fresh Mexican Grill? 5 A No. 6 Q Stradling, Yoca, this is the name of the firm you 7 were talking about earlier? 8 A Correct. 9 Q Buffets, Inc., LOI signed? 10 A No. 11 Q What happened to them? 12 A Went away. 13 MR. TUCHMAN: Master plan,master site plan, alt 2, 14 HCA 2371. I'll mark that as three 42. 15 BY MR. TUCHMAN: 16 Q Would you please tell me what exhibit 342 is? 17 A It is a site plan. 18 Q Do you know when that site plan came into being? 19 A No. 20 Q Did that one supersede exhibit 332, 332's 21 attachment? 22 A I have no idea. 23 MR. TUCHMAN: For the record it's HCA 0017, this site 24 plan one. 25 BY MR. TUCHMAN: ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 182 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Do you know when the conceptual site plan 2 was 2 used, the one in front of you, 342? 3 A No. This, I don't ever recall sending this out 4 to anybody. That's not a site plan I'm familiar with. 5 Q 342. You were talking about 342, correct? 6 A This one. I'm not sure what number it is. 7 MR. TUCHMAN: Indicating 342. 8 BY MR. TUCHMAN: 9 Q Have you ever seen it before, exhibit 342? 10 A It's possible. It's not something I -- 11 Q Okay. Carl's was interested in the former Wells 12 Fargo building; am I correct? 13 A At one point. 14 Q Did you follow up with Maggiano's, 15 M-a-g-g-i-a-n-o, apostrophe s, Corner Bakery? 16 A Yes. 17 Q Pending LOI? 18 A Not signed. 19 Q What about Crocodile Cafe? 20 A No. 21 Q This is old stuff? 22 A Some of it is. But you asked for it, so you got 23 it. 24 Q Such that it is. 25 Clothestime provided you with construction of the ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 183 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 premises. I have a lot of blank pages. Is Ezralow going 2 to pay to build their store? I don't understand when you 3 get construction parameters why you get them? 4 A It varies from tenant to tenant whether they get 5 again a shell or shell plus. 6 Q And if they get a shell plus,that may be more 7 expensive? ` 8 A For us and for them. Tenant's going to pay for 9 it one way or another. 10 Q You don't put it like that when you talk to them 11 though? 12 A Sometimes. 13 Q Okay. Look likes a letter got through, sort of. 14 MR. TUCHMAN: Just also for my letter to you, 15 1/17/2000, Gray letter to Stoner. It's HCA 2485 to 2486. 16 1 don't see why it's been redacted,but I'm going to send 17 you a letter on that one too. 18 MR. SHIPOW: I'm making some notes,but make sure you 19 send me a note on whatever you want, and I'll consider it. 20 MR. TUCHMAN: I don't see a reason to hold back the 21 proposed Edwards Theater letter. 22 In addition,the 9/14/99 letter, HCA 2487 through L, 23 88. 24 And one more. HCA 2490 through 91, 9/2/99 Gray 25 to Stoner. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 184 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 MR. SHIPOW: We made it through a box. 2 MR. TUCHMAN: We did. Okay. 3 BY MR. TUCHMAN: 4 Q What is [PRAPBDZ/ [KWRUPL/ inning? 5 A They're a parent company of El Torito Grill 6 which I believe was sold recently. 7 Q You have authority to sign under Ezralow Retail 8 Properties letterhead; am I correct? 9 A Again I signed letters of intent that are 10 non-binding. I do not have signature power for Ezralow 11 Retail Properties. 12 Q Okay. I want you to take a look at-- 13 MR. TUCHMAN: I'll ask the reporter to mark for 14 identification as exhibits 343. HCA 2539 through 2542. 15 Looks like the most complete letter of intent I've seen. 16 Must have got filtered through the cracks over there. 17 BY MR. TUCHMAN: 18 Q Now, is this what your letter's of intent look 19 like? Is this the common first 2 paragraphs? I'm looking 20 at HCA 2540. 21 MR. SHIPOW: Let me take a look at this for a minute. 22 THE WITNESS: Uh-huh. i 23 First 2 paragraphs are relatively similar to most 24 LOIs. 25 BY MR. TUCHMAN: ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 185 I ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Please look at the last page of the exhibit and 2 tell me if the last paragraph or last paragraph then 3 there's an extra sentence then your signature block look 4 typical of the way these LOIs look? 5 A Yes. 6 Q Now, this agreed and accepted is that a stamp 7 that you have on there or is that a stamp that one of the 8 tenants put on there? 9 A This portion, this look here? 10 Q Yes. 11 A That's primarily our stamp. Some tenants do put 12 it on there if they put it on in the early stages of the 13 LOI. It typically isn't on therein the first or second 14 letter. 15 Q Sure you got to way until you go back and forth? 16 A Right. 17 Q Did you contact Fuzios, F-u-z-i-o-s? 18 A I don't recall that tenant. 19 Q Did Jim Ryan represent more than one tenant? 20 A His company does represent more than one tenant 21 or the company he works for represents more than one 22 tenant. I ' 23 Q Okay. 24 A And I think they work on their deals together. 25 Q Now, this Fridays was for Monterey Plaza or was ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 186 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 for Huntington? 2 A May I see the letter? 3 Q HCA 2596 through 2601. 4 A I have a deal with Fridays in Monterey Park. 5 They are a restaurant tenant. But they had and have also 6 made an offer for Huntington Beach. 7 Q Is there a signed LOI? 8 A No. 9 Q How many square feet? 10 A Same size. 75 hundred. 11 Q Frederick& Associates, GardenGourmet, 12 California Squeeze? 13 A We talked about that one. No signed LOI. 14 Q Gordon Biersch, B-i-e-r-s-c-h, Brewery. Signed 15 LOI? 16 A No. 17 Q Holoworld. Do you have a signed LOI with them? 18 A No. 19 Q Appears to be a lot of correspondence between 20 Huntington Surf& Sport? 21 A Yes. 22 Q What was the issue with them? 23 A Just negotiaters. 24 Q Looks like your first box of materials was 25 contacts, possible LOIs and then the second box is more ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 187 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 detailed correspondence after an LOI was signed or more 2 detailed communication. Does that sound about right? 3 A I didn't put this together to be sent to your 4 office. I sent it to Mark's office. 5 Q Okay. Parker Mount work directly for Jillian's? 6 A He does. 7 Q Take at that he's broker? 8 A Yes, Scott Bobrow. 9 Q A lot of negotiation on Jillian's. 10 A Yes. 11 Q Did you have an LOI with Kelly's Coffee and 12 Fudge? 13 A No. 14 Q You dealt with Sherwood and Hargrove? 15 A That's not familiar to me. 16 MR. TUCHMAN: Lessor, Huntington Center Associates, 17 LLC, a Delaware Limited Liability Company. Lessee, 18 Huntington Center KB Toy. Property address. I'm going to 19 mark this,because I want a copy of this. HCA 2844 20 through 2854. We'll call that exhibit 344. 21 BY MR. TUCHMAN: 22 Q Tell me what this is,please. If you know. 23 A Well, KB Toys was in the mall. 24 Q Not anymore? 25 A That is correct. They agreed to leave. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 188 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q And they agreed to leave pursuant to terms set 2 forth in this letter? 3 A That was handled by Calabasas. 4 Q Calabasas office? Okay. 5 I'm going to be asking you for that one too, Mr. 6 Shipow. 7 MR. SHIPOW: Okay. 8 BY MR. TUCHMAN: 9 Q That Krispy Kreme was a pet project, wasn't it? ' 10 That was something you guys really wanted to get in? 11 A Why do you say that? 12 Q Push iting very hard at those meetings? 13 A I wasn't aware of that. 14 Q Did you get all of Raoush's files? 15 A You have what I was provided. I don't know if 16 that constitutes all his files. 17 Q What is Merry, M-e-r-r-y, Collection? 18 A It's another similar to the trinket store. 19 Q Like Merry Brightling or whatever you said? 20 A Mary Englibright. 21 Q Did they sign an LOI? 22 A No. 23 If those are 2 pages, I think you're back in the 24 letters. 25 Q All right. Why were you writing letters or why ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 189 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 was Romano's Macaroni Grill an issue? Aren't they already 2 at the mall on a corner pad? 3 A They are. 4 Q So why was Brinker writing to you? 5 A They wanted patio. 6 Q Did you give them a patio? 7 A I believe we are still in negotiations for that 8 patio. 9 Q Marble Slab Creamery. You sent them an LOI? 10 A No. 11 Q Didn't want them? 12 A Coldstone Creamery. 13 Q Nova Men, do you have an LOI with them? 14 A May I see it? 15 . Q Yeah. HCA 2933 through 2935. 16 A No LOI. This is not my LOI form either. 17 Q So some other broker out there? 18 A Someone sent me a letter. I didn't respond to 19 that. 20 Q How come? 21 A May have been a rent issue. I don't know. 22 Q Jones and Lawton,who are they representing, do 23 you know? 24 A May I see it. 25 Q HCA 2936 through 2938. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 190 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A They represented an independent nail salon. 2 That LOI is their form also. 3 Q They signed an LOI? 4 A No I didn't respond to that either. 5 Q Why is that? 6 A Probably rent issue. That's why most of them 7 don't get responses. 8 Q They want the rent too cheap? 9 A Right. 10 Q You figure you don't even want to deal with them? 11 A (No audible response.) 12 Q Is that right? 13 A That can be the case. 14 Q Okay. Did you ever refer any tenant questions to 15 Doug Gray that were asked about Burlington? 16 A I believe I have. 17 Q Who asked questions that you had to refer? 18 A I don't know. 19 Q How many times did that happen? 20 A Occasionally. 21 Q Any tenants tell you they didn't want to come in 22 this mall because Burlington was there? 23 A I don't believe anyone's overtly said that no. 24 Q Overtly. Nobody's said that to you, right? 25 A No one has said that to me. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 191 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Okay. And has anybody said to you I'm not going 2 to sign up with your mall unless you give Burlington out 3 of there? 4 A Not in that context. People have told me that 5 they would not be apart of a project probably with a 6 Burlington. 7• Q Okay. And did any of those people who signed 8 those LOIs,those entities are they the ones that said 9 that to you? 10 A It never made it that far with any of the tenants 11 that were that concerned to you. 12 Q Who said that to you? 13 A PF Chang's. 14 Q PF Chang's? 15 A Uh-huh. 16 Q Is that yes? 17 A Yes. 18 Q Anyone else? 19 A Not that I recall. 20 Q Who's PF Chang? 21 A Very high-end Chinese restaurant. 22 Q And this Chinese restaurant didn't want to be 23 there if Burlington was there? 24 A That was the statement made. 25 Q Was that the reason they didn't sign up with you? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 192 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A I couldn't tell you what his reason was. 2 Q How many square feet? 3 A They are between 7 and 8 thousand feet. 4 Q And were there other, issues about rents or 5 square footage? 6 A Oh I'm sure. I'm sure. I don't know that it 7 ever boils to one issue unless it's rent which typically 8 is. 9 Q Did you come to an agreement on rents with PF 10 Chang's? 11 A I didn't get that far. 12 Q What killed the deal? 13 A He just said he was going to pass on the site. 14 Q Anybody tell you any prospective tenants tell you 15 we're not going to go here because Montgomery Ward is 16 here? 17 A It's usually part of the same conversation. 18 Q I don't understand your response. Did anybody 19 say to you I'm not signing up with you, Paul, Mr. Bernard 20 because Montgomery Ward is there, if you get rid of Ward 21 I'm going there. I know Great Indoors said that. But did 22 anybody else say that? 23 A The people that are not responding to LOIs and 24 waiting to see what's going to happen with the deal are 25 people that want to see if Wards and Burlington are going ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 193 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 to be part of the project or not. 2 MR. TUCHMAN: You've got to read my question back. 3 (Question read.) 4 MR. SHIPOW: I think his answer was responsive. 5 If you want to. 6 MR. TUCHMAN: I don't think so. I think it calls for 7 speculation. 8 MR. SHIPOW: The question may call for speculation. 9 MR. TUCHMAN: I don't think so. 10 MR. SHIPOW: His answer doesn't call for speculation. 11 MR. TUCHMAN: Well, it is speculative. 12 BY MR. TUCHMAN: 13 Q Anybody say that to you? 14 A I don't recall specific conversations where that 15 was exactly the statement that was made. 16 Q Okay. Nobody said to you, gee, I love this 17 place, I love this place, Paul, and it was a tenant, but 18 I'm not signing up because Ward is in that mall or could 19 be in that mall; is that right? 20 MR. SHIPOW: Using those specific words? 21 MR. TUCHMAN: Or something to that effect. 22 MR. SHIPOW: Objection. Ambiguous, overbroad. You 23 can answer if you're able to. 24 THE WITNESS: I'm not really able to. 25 BY MR. TUCHMAN: ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 194 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q You can't recall as you sit here today anybody 2 using those words or words like that? 3 A No. 4 Q You live in Rancho Cucamonga? 5 A I do. 6 Q You ever shop at Burlington? 7 A No. 8 Q Is there a Burlington out there? 9 A There is. 10 Q Ontario Mills? 11 A Yes, also Totally Orchids and perhaps one other 12 concept out there. 13 Q Okay. You don't like the store? 14 A It's not that I don't like it. I haven't had a 15 , call for things they sell. 16 Q You might one day. 17 A You never know. 18 Q I think we talked about Opah, O-p-a-h. They did 19 not sign a letter of intent? 20 A That is correct. 21 Q Oscar's did sign a letter of intent? 22 A Oscar's did not. 23 Q They were talking about lease changes. I guess 24 this is a little bit old though. And? 25 A Oscar's I believe came with Macerich. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 195 ***THIS IS AN UNEDITED; UNCERTIFIED TRANSCRIPT*** 1 Q Opal Concepts, did you have a contact with them? 2 A The name is familiar. 3 Q Carlton Hair, maybe? 4 A That is familiar. Yes. No LOIs have been 5 exchanged but the tenant's name is familiar. 6 Q HCA 3117. Take a look at that page. 7 A Yeah. And I can say I didn't forward anything 8 because he's asking for specific space. 9 MR. TUCHMAN: I'll mark that as exhibit 345. That's 10 HCA 3117. 1-1 Take a five-minute break. 12 (Recess taken.) 13 MR. TUCHMAN: Back on the record. 14 BY-MR. TUCHMAN: 15 Q Have you had any contact with Southern California 16 Edison regarding their easement? 17 A I have not, no. 18 Q Do you know who's been in charge of that? 19 A No. 20 Q Do you an LOI with Salt Creek Grill? 21 A There's not one signed. I referred to Linda 22 Crowley earlier who I believe represents them. 23 Q That is right. That's out, but hasn't been 24 returned? 25 A That probably wouldn't be a deal that happens. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 196 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Why is that? Price? 2 A I don't know. I don't know what their rationale 3 was. 4 Q Now there's a letter dated September 15, 2000, to 5 Sears, Phillip E. Goodchild. Do you know if that's a 6 correct date, September 15', 2000? 7 A If it's on Sears letterhead, I would suspect it 8 is. 9 Q Now recently there's been a ground lease that's 10 been forwarded to you? 11 A Yes. 12 Q Well since I have about 30 pages of blank-- 13 MR. TUCHMAN: What does it say in there? 14 MR. SHIPOW: Terms and conditions which we.think are 15 confidential, proprietary and completely irrelevant to the 16 lawsuit. If there are specific issues you want to 17 address, you can ask him. And I'll take those up 18 individually. BY MR. TUCHMAN: 19 Q Is this ground lease for 140 thousand square 20 feet? 21 A Their footprint is ever in flux, according to 22 them. That's an approximation. 23 Q And when you say ground lease that means the 24 space that they want is where Montgomery Wards is; is that 25 correct? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 197 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A Approximately. 2 Q Now, when you say ground lease, to me that means 3 they're going to demolish what's there and build a new 4 building on that site? 5 A That would be their intent. 6 Q Is that their intent? 7 A That would be their intent. 8 Q Now the 140 thousand square feet of retail are 9 you committing to build that or is Sears building it? 10 A It's a ground lease. They are committing to 11 build that. 12 Q Now in this lease does it say how many dollars 13 per square foot they are paying? 14 MR. SHIPOW: Don't give an amount. Just answer yes or 15 no. 16 THE WITNESS: Yes. 17 BY MR. TUCHMAN: 18 Q What is the lease term? 19 A I don't recall. 20 Q Is it more than 20 years? 21 A Base term, no. 20 would be the maximum on a base 22 term, I believe. 23 Q Are there any options? 24 A There would be on top of a base term. 25 Q The base term you say is 20 years? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 198 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A I believe it is. 2 Q Now, are there any terms in the ground lease that 3 refer to Burlington Coat Factory being in existence or 4 not? 5 A Not that I'm aware. . 6 Q You're deal with the Great Indoors is completely 7 unrelated to Burlington's existence or non-existence? 8 A As far as I know. 9 Q Is there anything in the ground lease which 10 refers to Montgomery Ward? 11 A I don't recall. 12 Q Now, the ground lease language that's been 13 provided,this was, nothing's been provided but this 14 language was typed up by Sears? 15 A The ground lease is their form. 16 Q Do you know what the re line says? 17 MR. TUCHMAN: I think I'll attach the face page to the 18 . transcript as exhibit 346. And 346 says September 15, 19 2000. The entire document goes from HCA 3257 through HCA 20 03303, I think. It's hard to say, because of the 21 overwhelming redactions. . 22 BY MR. TUCHMAN: 23 Q But can you tell me what the face page said, 24 please. 25 A Here? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 199 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 MR. SHIPOW: What the whole page said? 2 MR. TUCHMAN: The re line. The re line is cut in 3 half. 4 THE WITNESS: That would be the Great Indoors. 5 BY MR. TUCHMAN: 6 Q Okay. Let me see. Ground lease for Sears the 7 Great Indoors. That's what's cut off, correct? 8 A There could be more, but I know the GR would be 9 for the Great Indoors. 10 Q What was sent besides the ground lease on 11 September 15, 2000? 12 A I have no recollection. 13 Q Do you have a date of delivery of the premises 14 for them? 15 A I don't recall. 16 Q Does that sound right,that there is one? 17 MR. SHIPOW: You're talking about an actual date? 18 MR. TUCHMAN: Sure. 19 THE WITNESS: I don't know if it differs from the rest 20 of the LOIs when it's conditioned after delivery. I don't 21 recall if there's a specific date. 22 BY MR. TUCHMAN: 23 Q Okay. And why did it come about, September 15, 24 2000, because the LOI was already signed? 25 A I would imagine, yeah, the LOI was signed prior ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 200 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 to that ground lease coming in. 2 Q Was it signed, the ground lease? 3 A No, there's not been a lease signed. 4 Q Were the signatures by any party, for example,. 5 Sears? 6 A On what document are you referring? 7 Q The ground lease itself. 8 A As far as I know, there's not been any signature 9 on a ground lease. 10 Q By any party? 11 A That is my understanding. 12 Q Now the lease is with HCA; is that correct? 13 A I don't know. 14 Q Who do you represent when you get on the phone 15 and talk to people? 16 A Ezralow Retail Properties. 17 Q Do you tell them that the landlord may actually 18 be HCA? 19 A That doesn't come up. No, it's.just Ezralow 20 Retail Properties. 21 MR. TUCHMAN: Take a look at, I'll ask the reporter to 22 mark for identification as 347, it looks like a one-page 23 letter dated July 14, 2000, to Douglas Gray from Richard 24 Shoemaker. It's FICA 3304. The entire letter is redacted 25 except for the Dear Doug part. ***THIS IS AN UNEDITED; UNCERTIFIED TRANSCRIPT*** 201 E ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 BY MR. TUCHMAN: 2 Q Do you know what that letter said? 3 A It's to Doug. I should have asked.him. I have 4 no idea. 5 Q Do you know why you were communicating with Sears 6 on July 14th? 7 A I would suspect it's all related to talking about 8 the site. 9 Q Okay. Do you know if there was a percentage rent 10 included in the ground lease which is exhibit 346? 11 A I don't recall if there is or is not. 12 Q Would that be typical for such a large lease? 13 A For a Sears, I would suspect it would be not 14 typical. But I don't know if it is or isn't. 15 Q Not typical because it's such a large store and 16 they wouldn't go f6r it? 17 A Yes. But I could be incorrect. 18 Q Okay. 19 MR. TUCHMAN: 348 will be a, I'll mark the whole 20 thing. It goes HCA 3305 through 3318. Dated July 12, 21 2000,to Paul Bernard. 22 BY MR.TUCHMAN: 23 Q Can you tell me what exhibit 348 is, please. 24 A No, I cannot tell you what it is. 25 Q Do you think that's an LOI? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 202 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A Well, it's much shorter than the lease document 2 you handed me. And it's got exhibits attached to it, so 3 it certainly could be. 4 Q But you don't know what subject it is? 5 A Well, yeah,the subject is the Great Indoors in 6 Huntington Beach. 7 MR. TUCHMAN: Okay. I'm going to ask the reporter to 8 mark for identification as exhibits 349. It is March 1, 9 2000 letter to Paul Bernard from Richard Shoemaker. And 10 it's 14 pages. Goes from 3319 to 3335. 11 For the record,the third page says, Sears 12 construction standards, developer responsibilities, 13 minimum site specifications. Next page says minimum site 14 specifications. 15 BY MR. TUCHMAN: 16 Q And the question is do you recognize 349? 17 A Well, I would suspect since it says Sears 18 construction standards on the first page and the footer on 19 the last page says Sears minimum sites specifications is 20 how they want the dirt delivered. 21 Q You mean grading, et cetera? 22 A Uh-huh. 23 Q That's a yes? 24 A Yes, sorry. 25 Q Okay. And you have agreed to deliver it graded; ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 203 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 is that right? 2 A I don't recall the exact specifications of 3 delivery. 4 Q Well, do you recall any of the specifications of 5 delivery? 6 A Generally, it would be dirt. So they can start 7 construction. 8 Q Okay. Have you run any geo reports out there, do 9 you know?. 10 A I don't. That's not something I handle. 11 Q Not your department? 12 A No. 13 Q Now you had a series of letters going back and 14 forth that deal with letters of intent and negotiating the 15 language prior to the ground lease I assume? 16 A For Sears? 17 Q Yes. 18 A I believe that's what this document probably is. 19 Q 348. Okay. 20 How long did it take to negotiate the LOI with 21 the Great Indoors? 22 A I don't know. 23 Q Did it take a number of correspondence back and 24 forth? 25 A I suspect it did, I don't know. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 204 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 MR. TUCHMAN: I want to show you a document which is 2 dated Wednesday April 5, 2000, to Rick Shoemaker from Paul 3 C. Bernard. And that's, looks like a one-page memo. 4 Could be 2. HCA 03365 through 3366. .And that will be 5 exhibit 350. .6 MR. SHIPOW: 33? 7 MR. TUCHMAN: 3365 through 66. 8 BY MR. TUCHMAN: 9 Q And the question is do you recognize this 10 exhibit? 11 MR. TUCHMAN: Let me tell the guys to Xerox 12 something. 13 (Recess taken.) 14 BY MR. TUCHMAN: 15 Q Do you recognize 350? 16 A I do. 17 Q It is a memo calling out certain things within 18 their LOI that we had major objections to. What they were 19 specifically, I don't remember. 20 Q Did it have anything to do with Burlington Coat 21 Factory? 22 A Absolutely not. 23 Q Did it have anything to do with Montgomery Ward? 24 A It could have. .25 Q Do you know what it had to do with Montgomery ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 205 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Ward? 2 A Probably contemplated redevelopment language. 3 Q What does that mean? 4 A That means if the City chooses to not do 5 anything,there is no site to be had. 6 Q And you wanted to make sure they knew that? 7 A Yes. 8 Q You didn't want to contract for something you 9 didn't have the power to do? 10 A I'm not an attorney so that verbiage -- I differ 11 to you, but I wanted to at least disclose that there may 12 or may not be a possibility for them. 13 Q What have you been told about the redevelopment 14 of the site by Mr. Gray or anyone at Ezralow? 15 A That's pretty broad. 16 Q When you first bottom the property you know it 17 was in the redevelopment zone? 18 A I did not. 19 Q When did you first learn that it was? 20 A It was sometime after we bought it. 21 Q Good. Do you know what that means being in a 22 redevelopment zone? 23 A I don't know all the specifics. Generalities. 24 Q What generalities do you know? 25 A The City can do things to help with the ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 206 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 development. And what those things are, I don't know. I 2 don't know a lot about redevelopment. 3 Q They have extra special powers, right? 4 MR. SHIPOW: Don't guess. 5 THE WITNESS: I'm not going to guess. I have no idea 6 what their powers are or are not. 7 BY MR. TUCHMAN: 8 Q But you do know that Doug Gray met with the City 9 before escrow closed? 10 A I believe he did. I believe he met with Macerich 11 and the City. 12 Q And you also know that without the power of the 13 City to help you redevelop, you can never enter into that 14 Sears or Great Indoors lease? 15 MR. SHIPOW: Objection. Calls for speculation, calls 16 for a legal conclusion. 17 BY MR. TUCHMAN: 18 Q You can answer. 19 A I have no idea. 20 Q Well,how are you going to make Montgomery Ward 21 go away? By magic? 22 MR. SHIPOW: Same objections, argumentative. 23 BY MR. TUCHMAN: 24 Q You can answer it. 25 A That's not what I get involved with. I interest ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 207 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 tenants in a project. 2 Q What else did exhibit 350 say? 3 A Don't remember the specifics. I remember it 4. highlighted certain bullet points in the lease that we 5 found to be problematic. 6 Q Was it two pages or one page,your memo? 7 A I believe it was two pages. It was a carry over, 8 I think small items on the second page. 9 Q It's unusual for you to provide a written memo 10 for someone in your dealings with these tenants at 11 Huntington Beach? 12 A Because the LOI was so lengthy, I typically 13 rewrite the LOI into our format, but that wasn't going to 14 work in this case, because I wasn't going to rewrite 150 15 pages. 16 Q Were you told to handle the Great Indoors 17 carefully with kid gloves, for example? 18 A No. 19 Q Is there a tenant that the Ezralow Company 20 really wants? 21 A You're asking me to guess what they want or don't. 22 want. 23 Q Well, have they told you that's what they want? 24 A They haven't told me anything. They told me to 25 bring as many tenants as possible. ***THIS IS AN UNEDITED,UNCERTIFIED TRANSCRIPT*** 208 i ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q Is this a high-end tenant in your opinion? 2 A Absolutely. 3 Q What is the Great Indoors? What do they sell? 4 A They sell everything from home accessories, 5 towels, sheets, Persian rugs,to some of the most 6 expensive appliances you can buy. Professional gourmet 7 appliances, Wolf, Viking. 8 Q Okay. 9 A $15,000 plasma televisions. 10 Q Did you ever speak to, I know you talked about 11 Shoemaker. Did you talk with Mr. Goodchild? 12 A I was given Goodchild's name by Shoemaker. And I 13 gave that to Doug. I have not spoken to Goodchild. 14 Q Is Goodchild higher than Shoemaker? 15 A I have no idea. 16 MR. TUCHMAN: Off the record. 17 (Discussion held off the record.) 18 MR. TUCHMAN: Let's go back on the record. 19 BY MR. TUCHMAN: 20 Q A lot of correspondence with Sears. Minimum 21 standards. Construction standards. Am I right about 22 that? 23 A I don't know. 24 Q That's something you dealt with, you're the 25 person, correct? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 209 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A Doug and I are the people that handle that. I 2 don't handle these tenants unilaterally. 3 Q Okay. 4 A Not Sears or even Pizzarito. 5 Q Pizzarito. What does the single prospect mean? 6 A In the context of just saying single prospect, I 7 don't know. 8 Q In the context of an LOI? 9 A I need to see it. 10 Q Looking at HCA 03437. This-- 11 A This is a condition agreement. Single prospect 12 means that it's a one, it's like a single-party. exclusive, 13 if you will. If they do a deal, they get paid. 14 MR. TUCHMAN: Okay. HCQ 03440 through 3443, I'm also 15 going to write you a letter on. 16 BY MR. TUCHMAN: 17 Q Did you ever have a meeting with anyone from the 18 city where, maybe you didn't say anything but there were 19 other Ezralow people present? 20 A I did sit down in a meeting with Loren Hohman and 21 I believe his attorneys. There were some city people 22 there. Bryan Ezralow, Doug Gray,myself and Jim Hughes. 23 Q When was this?. 24 A I have no idea. 25 Q In the year 2000? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 210 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 A It's possible. 2 Q What? 3 A Wards called the meeting. 4 Q Do you know what the purpose of meeting was? 5 A They wanted to get a feel for where the city 6 was. I mean it was very, it was a waste of time. Nothing 7 was really said. And then Jim Hughes and I were asked to 8 leave. 9 Q Do you know why you were invited to the meeting? 10 A I have no idea. 11 Q Do you know why you were asked to leave? 12 A I have no idea. 13 Q Where did the meeting take place? 14 A In I believe the, I don't know what floor it was 15 on but in Huntington Beach in the City officers. 16 Q Either the, one of their conference room? 17 A It was a conference room. I really don't know. 18 Q What,how long did the meeting last? 19 A I was in there for maybe ten minutes. And I 20 think it maybe lasted another half an hour. 21 Q What was said at that meeting? 22 A I, again, it was what are your plans, what are 23 you doing? Wards telling the City and Doug they wanted to 24 be part of the project. And we were asked, Jim and I were 25 asked to leave. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 211 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 Q Which attorneys were there for Montgomery Ward? 2 A I have no idea. I don't know their attorneys. 3 Q Did you bring any materials to the meeting? 4 A No. 5 Q Were any materials distributed at the meeting? 6 A Not that I recall. 7 Q You were not involved in preparing the Specific 8 Plan which was submitted to the City; is that correct? 9 A Not in the lease. 10 Q Okay. Not in the lease, meaning you didn't? 11 A I didn't do anything on the Specific Plan, 12 nothing. 13 Q Even David Stein had an attorney getting the 14 action; am I correct? 15 A Yes. 16 Q James Hughes got involved with Dr. Stein also? 17 A Can I see the document? 18 Q Yeah, sure. Any time you want to see a document, 19 it's no problem. HCA 03461 through 03463, although I'm 20 not sure it will help too much. 21 A I don't recall the reason. 22 Q But you knew the reason at one point? 23 A Yes, obviously. I mean I would have seen that 24 document. 25 Q Was Stein angry at you? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 212 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 A No. 2 Q Is Stein, he's signed a LOI? 3 A He did. 4 Q You ever have-an office out at those trailers? 5 -A I hope not. I got a nice airconditioned 6 comfortable office. I hope note. 7 Q Do you know about those trailers? 8 A I've seen the trailers. 9 Q You've seen them? Has anyone told you you're 10 moving out there? 11 A No. 12 Q Has anyone told you any permits have been pulled 13 out there for anything? 14 A I don't know about any permits. 15 Q What are the trailers for? 16 A I have no idea. 17 Q Are you going to be moved out there? 18 A I hope not. I don't know. 19 Q Nobody's told you that? 20 A No. 21 MR. TUCHMAN: All right. There's a letter. I'll show 22 it to you. HCA 03464 through 3466. I'll ask the reporter 23 to mark for identification as 351. May 16, 2000. 24 Regarding Subway. Take a look. 25 BY MR. TUCHMAN: ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 213 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** .1 ' Q Tell me what that means, proposed Subway 2 location. 3 A It's more, they were a tenant in the mall and 4 this was an LOI for the redeveloped mall because they're 5 no longer there. They want to come back. 6 Q Why does it say location? Was it specific to a 7 location? ` 8 A No. 9 Q Even Subway was negotiating? 10 A They all do. 11 Q Suit Max, LOI with them? 12 A That is a Macerich document if I'm not mistaken. 13 Q It is. Was there an LOI with them? 14 A No, not that I know of. 15 Q I think you told me about Skechers. Do they have 16 an LOI? 17 A They do not. 18 Q Okay. They do not. 19 Do you know what the Marmax Group was doing out 20 there? 21 A Marmax Group is Marshal's and TJ Maxx. 22 Q We talked about TJ Maxx as maybe going in there, 23 correct? 24 A No, I told you they weren't going in there. 25 Q Right. You have a letter from Voit, V-o-i-t. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 214 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 dated October 26, 1999. And it says proposal to lease 2 suites G, H and I at Huntington. Do you need to see that? 3 A No, I don't. 4 Q What is that? 5 A They had a large entertainment tenant. 6 Q Who? 7 A. They're called Xanadu, the Wonder Works. 8 Q What happened to Xanadu,the Wonder Works? 9 A I think they lost their funding. 10 Q No LOI, aye? 11 A Nothing. 12 Q Looks like you have an Islands lease in here. 13 HCA 3562, goes on for about 50 pages? 14 A Okay. 15 Q Is that lease, it's all blank pages? 16 A There are no executed leases. We do have an LOI 17 and we have been negotiating a lease with Islands. 18 Q Okay. Looks like there's also a lease for 19 Jillian's,but again that's unsigneddize. 20 A That is correct. 21 Q Okay. Are they ready to be signed? Have you 22 done negotiating with Jillian's and Islands? 23 A No. 24 Q Still negotiating the leasing? 25 A Yes. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 215 t ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 Q As far enough along looks like they will be in 2 the mall? 3 A You never know. Even when it's signed sometimes 4 you don't know. They're not that far along. They're 5 still being negotiated. 6 Q I wonder what HCA 3567 and 3568 are. 7 MR. SHIPOW: We did a real good job on that one. 8 Write me a letter. 9 MR. TUCHMAN: I will. Just for the record,they're 10 just completely blank pages. 11 MR. SHIPOW: They're not completely blank. They have 12 the numbers on them. 13 MR. TUCHMAN: You're right. It says redacted with 14 numbers. HCA 03657 through 03658. That's classic. Who 15 did that? Did you do that? 16 MR. SHIPOW: It's possible that it was misstapled from 17 the prior group. 18 MR. TUCHMAN: You mean the over 50 blank pages? 19 MR. SHIPOW: But I'll be happy to do that for you. 20 MR. TUCHMAN: Did you do this? 21 MR. SHIPOW: No, it was a paralegal. I had a 22 paralegal take primary responsibility. I'm responsible 23 for supervising and I did not look through each individual 24 page. 25 MR. TUCHMAN: Okay. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 216 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 MR. SHIPOW: And each individual staple. 2 MR. TUCHMAN: As I have. 3 MR. SHIPOW: As you have. 4 THE WITNESS: You already stated you make more money 5 than all of us, but you're getting paid for it. 6 MR. TUCHMAN: Did I say.that? 7 THE WITNESS: Yeah, you did. 8 BY MR. TUCHMAN: 9 Q What I said, I wouldn't work at Holland& Knight. 10 A Because you make too much money. 11 Q Oh, don't think I did. 12 MR. SHIPOW: Oh, yes, you did. 13 THE WITNESS: She can go back, if you want. 14 BY MR. TUCHMAN: 15 Q This is a letter dated August 7, 2000, from 16 Stradling. HCA 03659 through 3674. All blanks. Do you 17 know what that is? 18 A Just Sperry and Baton Rouge, Louisiana, is Ruth's 19 Chris. 20 MR. TUCHMAN: Okay. Looks like you have a lease 21 agreement with Jillian's. Wait. There's another lease. 22 More totally blank pages. 3732 through 3734 and 3735 23 through 3737. Okay. 24 I'll send you a note. 25 BY MR. TUCHMAN: ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 217 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 Q McGinnley and Stafford. Are they the attorneys 2 for Jillians? 3 A It doesn't ring a bell. 4 Q Looks like Elephant Bar also has a lease? 5 A In process. 6 Q Again not signed? 7 A Absolutely not signed. Still has a lot of 8 negotiating in it. 9 Q Do you do the lease negotiations? 10 A I listen more than I do negotiations. 11 Q Who handles that? Doug Gray? 12 A Doug and I are on the phone calls with 13 attorneys, perhaps their attorneys and business people. 14 Q Is the reason you take a junior role you have 15 less experience, you have less authority, what is the 16 reason? 17 A Both. 18 Q Okay. And Doug Gray he has authority to speak 19 for the company; is that correct? 20 A You'd have to ask him that question. 21 Q It looks like you also have a lease for Buca, 22 B-u-c-a, restaurants. And that's Buca Di -- 23 A -- Beppo. 24 Q Yes. 25 MR. SHIPOW: It's a great restaurant. You ought to ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 218 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 try it sometime. 2 THE WITNESS: It really is very good. 3 (Discussion held off the record.) 4 MR. TUCHMAN: Buca net lease agreement. All Ruth's 5 Chris documents. 6 Okay. Off the record for a second. 7 (Discussion held off the record.) 8 MR. TUCHMAN: Back on the record. 9 BY MR. TUCHMAN: 10 Q Are there any other letters of interest, other 11 than the three boxes of documents we just went through? 12 A When did I supply those documents? 13 MR. SHIPOW: They're probably by the time I got them 14 and went through them, it's probably been a month or so. 15 THE WITNESS: There may be. I would, there might be. 16 I would need to look. 17 BY MR. TUCHMAN: 18 Q How many? 19 A I have no idea. I don't keep a tally. 20 Q Do you know how many square feet you've signed up 21 since then? 22 A No clue. I don't know how many square feet I've 23 got based on what you got. 24 Q We can now count it up. You've never counted it 25 up? ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 219 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 A (No audible response.) 2 Q Is that a no? 3 A That's a no. 4 Q Are there other additional documents or leases or 5 documents that are responsive to my notice of deposition 6 that are in your possession besides these other LOIs? 7 A There are more of the two-page letters, because 8 additional marketing packages were sent out. There may be 9 more LOIs. I'll have to check the date of when I sent 10 everything to Mark and today. 11 Q Okay. All right. So what we're going to have 12 for next time is. 13 MR. SHIPOW: You can make the request, but I don't 14 know that I'm going to do a continuing constant update of 15 documents in this case. 16 MR. TUCHMAN: You mean update of blank pages. 17 MR. SHIPOW: However you want to characterize it. 18 MR. TUCHMAN: Okay. We can always renotice it. 19 More LOIs. 20 MR. SHIPOW: No, I don't think you can. But we'll 21 take it up. 22 MR. TUCHMAN: I think I can. Don't forget we do want 23 the magazine ads, the new marketing package and then 24 exhibits 334, the correct date. 25 MR. SHIPOW: Okay. ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 220 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT* 1 THE WITNESS: Those things I'm going to get, right? 2 MR. SHIPOW: You're going to give me a letter of all 3 those things. We'll look at the letter and at least most 4 of the stuff we'll be able to get to you and some we may 5 have further objections. 6 MR. TUCHMAN: Are there.certain dates when you want to 7 reschedule for the last couple hours of him? 8 THE WITNESS: I don't have my calendar. 9 MR. SHIPOW: Let's figure that out based on looking at 10 the letter that you're going to send to me. I I MR. TUCHMAN: Okay. That's fine. I just want to take 12 a short break. Then I'm going to cut you loose, okay? 13 (Recess taken.) 14 MR. TUCHMAN: Back on the record. I don't have 15 anything further for today. I'll send you the letter of 16 things I need. And we'll find a mutually convenient date, 17 couple hours max, okay? 18 THE WITNESS: That's fine. 19 MR. SHIPOW: Very good. 20 MR. TUCHMAN: And propose that the reporter be 21 . relevered of her duties under the Code with respect to 22 maintaining the original,obtaining signature; 23 that the transcript be sent to Mr. Shipow. And 24 it will be Mr. Shipow's responsibility to ensure that 25 Paul Bernard sign his transcript, make any changes if ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 221 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 1 necessary, and sign it under penalty of perjury. 2 In addition, the original transcript will be 3 coming by cover letter CC to myself indicating its 4 transmittal. Mr. Shipow will have 30 days upon receipt of 5 the transcript to have it signed and corrected by 6 Mr. Bernard. 7 If it is signed and corrected by Mr. Bernard, Mr. 8 Shipow will return the original to me and I will keep it 9 until time of trial in this matter and produce it upon 10 reasonable notice. 11 In the event the certified copy,the original is 12 not signed or corrected, a certified copy may be usable 13 for all appropriate purposes in lieu of the original. 14 MR. SHIPOW: So stipulated. Except that I will retain I15 the original and make it available since it's my client's 16 deposition. 17 MR. TUCHMAN: Then just give me notice as soon as he 18 signs it within that time period of the changes to the 19 transcript and the facts it's been signed. 20 MR. SHIPOW: Yes. 21 MR. TUCHMAN: Thank you. 3:53 p.m 22 23 24 25 ***THIS IS AN UNEDITED, UNCERTIFIED TRANSCRIPT*** 222 `e s. ti. r