Rich Deeney Testimony

Date of Testimony  05.14.2014


1    P R O C E E D I N G S



4    — Morning Session —


6    THE COURT:    Good morning.    Before the plaintiff

7    calls the next witness, let’s go through the judicial

8    notice issues.

9    MR. ESSNER:    Can you just give us a moment

10    Your Honor to locate it.

11    THE COURT:    Sure.    Me, too.

12    MS. YOB:    Your Honor, we were able to meet and

13    confer regarding the request for judicial notice yesterday.

14    And my understanding is Mr. Buescher has no objection to

15    the items attached to our request for judicial notice.    And

16    my understanding is that they wished to admit items one

17    through five in their exhibit binder as requests for

18    judicial notice and we have no objection to any of those

19    items being introduced.

20    MR. BUESCHER:    Two brief points of clarification.

21    We disagree that some of the items that they requested are

22    relevant, but we understand that they’re proper subjects of

23    judicial notice.    And it’s just exhibits 1 through 4 in the

24    plaintiffs binder and I believe both exhibits one and two

25    have already been admitted into evidence.    So it would be

26    exhibits three and four that we would request judicial

1    notice of.

2    MS. YOB:    Your Honor, there will be one

3    additional item that we will need to request judicial

4    notice of.    And that’s a section of the county zoning

5    regulations.    We don’t have a copy here today with us but

6    we will have one tomorrow.

7    THE COURT:    Well, okay.    I’m not sure I have to

8    take judicial notice of that, but okay.    Alright.

9    MR. BUESCHER:    That I have no thoughts on at this

10    point.

11    THE COURT:    Okay.    Well, you both are being more

12    generous than I would be, so there you are.    That’s nice.

13    So are you ready to call your next witness?

14    MR. COTCHETT:    To move this case along, plaintiff

15    rests.

16    THE COURT:    Okay.    Thank you.    So plaintiff

17    rests.    Is the defense ready to proceed.

18    MR. ESSNER:    Yes, Your Honor.    We are call Rich

19    Deeney.

20    THE CLERK:    Please raise your right hand.

21    Testimony of,


23    called as a witness on behalf of the Defendants, and

24    having been first duly sworn, testified as follows:

25    THE CLERK:    Thank you.    Please be seated.

26    Can you please state and spell your first and

1    last name for the record.

2    THE WITNESS:    First name is Richard,

3    R-i-c-h-a-r-d.    Last name is Deeney, D-e-e-n-e-y.

4    THE COURT:    If you could move the microphone up

5    underneath your mouth.    Thank you very much.

6    THE WITNESS:    I may not hear very well.    One of

7    my hearing aids quit so if I don’t come through right,

8    holler at me.

9    MR. COTCHETT:    You’re not alone, sir.

10    THE COURT:    It seems to be a prevailing problem.


12    BY MR. ESSNER:

13    Q.    I’ll speak into the microphone.    Can you hear me?

14    A.    I can.

15    Q.    Great.    If you can’t just, let me know, and I’ll

16    repeat the question.

17    A.    Okay.

18    Q.    Thank you.    Good morning, Mr. Deeney.

19    A.    Good morning.

20    Q.    My name is Jeff Essner, and I represent Martins

21    Beach one and two?

22    A.    Uh-huh.

23    Q.    Thank you for coming today.

24    Now you are under a subpoena to appear and

25    testify; is that correct?

26    A.    That’s right.

1    Q.    Now, you were the seller of what we’ve been

2    calling here in this courtroom as Martins Beach, to my

3    client, Martins Beach one and two; is that right?

4    A.    That’s correct.

5    Q.    And do you recall approximately when that sale

6    occurred, just approximately?

7    A.    It seems to me like September, 08.

8    Q.    Okay.    And do you recall the sale’s price for the

9    property?

10    A.    Not exactly.    But I know it was 32 maybe million.

11    Q.    Approximately 32 million?

12    A.    Yeah.

13    Q.    And how long has the property been in your

14    family?

15    A.    We owned that north parcel.    I don’t know which

16    one is Martins Beach one or Martins Beach two, but the

17    north one close to the beach access.    That one we owned

18    since 1902.    And the south parcel, I believe was in the

19    family since 1865.

20    Q.    Okay.    So the parcel that Martins Beach Road runs

21    on is that the north or the south parcel?

22    A.    The north.

23    Q.    And that parcel that you’ve owned since the early 24    1900s?
25    A.    Yeah, 1902.

26    Q.    The south parcel you’ve owned since I’m sorry

1    when?

2    A.    1865.

3    Q.    Okay.    Thank you.    So I’m sorry to ask you this

4    question, when were you born? 5        A.    12/20/48, 1948.
6    Q.    And have you grown up living on the property that

7    we’ve called Martins Beach?

8    A.    I did, yes.

9    Q.    Okay.    And you were born and raised on that

10    property?

11    A.    Correct.

12    Q.    Okay.    And where do you live now?

13    A.    Straight east we own property across the highway,

14    and we bought a parcel that adjoined our preexisting

15    parcels a little further east.    We’re on the Lobitas Creek

16    cutoff back there, probably about a mile away as the crow

17    flies from the beach.

18    Q.    Okay.    When you were alive, because I only want

19    to know about when you were alive, was the property used

20    for agricultural purposes?

21    A.    Yeah.    It’s always been, always been

22    agricultural.

23    Q.    Could you describe for the Court the first

24    agricultural purposes used for the property?

25    A.    Most everything I remember we, years ago, raised

26    dairy cows and we raised young heifers there.    And then

1    when they got big enough to you know breed and stuff, we

2    moved them back to the ranches further inland and bred them

3    and sold them for replacement heifers.

4    Q.    Let me just interrupt you.    About when was that?

5    A.    Ever since I was just a little — probably, I

6    mean, I know early in the 50s we were doing it.    For as

7    long as I remember when I was a kid that’s what we did.

8    And we kept a couple of milk cows that we milked for our

9    own use and used the milk to raise those drop cows.

10    Q.    And at the time that the cows were on the

11    property was the entirety of the property fenced?

12    A.    Oh, yes.

13    Q.    Okay.    And was there a gate at the front of

14    Martins Beach Road at that time?

15    A.    When I was young, there was — it seems — this

16    is just recollection.    Maybe they put up a chain there.

17    Way back I know my dad talked about they had a wire gap

18    that they always used to close on the road.    And then I

19    think when they opened it for public — you know, when Mr.

20    Watt, our previous tenant came in there, I believe he put a

21    chain across to close it on non-business hours.

22    Q.    Okay.    We’ll get into that.    But was the property

23    fenced?

24    A.    Oh, yes, yes.

25    MR. BUESCHER:    Objection.    Asked and answered.

26    THE COURT:    I’m sorry.    What was the objection?

1    MR. BUESCHER:    Asked and answered.    It’s fine.

2    Q.    (By Mr. Essner) You also mentioned that —

3    I’m sorry.    Were there any other animals or other kind of

4    agricultural uses other than the heifers?

5    A.    Well, yeah heifers were in the earlier years.

6    And then we got out of the Holstein replacement heifer

7    business, and we had previously had sheep across the

8    highway.    And we were having such a predator problem over

9    there that we moved them to the west side of the highway,

10    and we kept sheep in there for — I can’t remember what

11    year we actually started them in there.    Well, when we got

12    out of the Holstein thing, which is probably in the late

13    60s early 70s, then we moved sheep over there and kept

14    sheep for quite a few years.    And then when we finally —

15    well, we just kept them until they, you know, gradually

16    died off.    And then we started farming.    And we would farm

17    it, and, you know, sometimes give it a year or two off and

18    then farm it again but it was always farmed.    If we weren’t

19    farming it, we would put some animals in there.

20    Q.    And do you know if the property is currently used

21    for agricultural purposes?

22    A.    Yes, it is.

23    Q.    And do you know what those are?

24    A.    What the uses are?

25    Q.    Yes.

26    A.    It’s being used for raising hay, and we still use

1    hay on our cattle ranch and raise, you know — supplement

2    the cattle.

3    Q.    So you had mentioned a little bit earlier in your

4    testimony that it was your belief that there was some type

5    of fence at Martins Beach Road that was a chain link fence?

6    A.    I believe so.

7    Q.    Okay?

8    A.    And then — until they put in the steel swinging

9    gates which —

10    Q.    Well, we’ll get to that in a second.    I just want

11    to — we’ll start with the chain fence.

12    A.    Sure.

13    Q.    Do you recall when that was roughly?

14    A.    You know, I don’t have much recollection of that.

15    I was pretty young.    I just remember a chain there, you

16    know, and we had leased to another man, and I don’t know

17    all the details of that, but I just remember a chain.

18    Q.    Okay.    And then you had mentioned at some point

19    the chain fence was replaced with a steel fence?

20    A.    Right.

21    Q.    Or a steel gate?

22    A.    Right.

23    Q.    Do you remember when the steel gate went in?

24    A.    I would say somewhere between 58 and 60. 25    Q.    1958?
26    A.    Yes.

1    Q.    Okay.    And can you describe for the Court what

2    the steel gate looked like?

3    A.    On both sides, there was a steel pipe.    Probably

4    dug into the ground with concrete poured around the base.

5    Then it had a bigger sleeve pipe over the top with a long

6    pipe that could be swung around to close the gap off.    You

7    know it swung like this and hinged off of the back, and it

8    had braces that came up.    And then on the center of it, it

9    had a bigger sleeve that slid across with a couple of eyes

10    and a long neck lock that would latch and lock that.

11    Q.    Let me make sure I understand.    There was a lock

12    on gate?

13    A.    Oh, yes.

14    Q.    Okay.    Could you describe how the gate locked?

15    THE COURT:    Well, before you do that, just for

16    the record, can you describe what he did with his arms in

17    terms of the swinging of the gate, just for the record.

18    MR. ESSNER:    Oh, I’m sorry.

19    Q.    (By Mr. Essner) Could you describe for the

20    record —

21    A.    Sure.

22    Q.    — verbally what you were motioning with your

23    hands?

24    A.    Yeah.    It had, like I say two pipes, a bigger

25    sleeve on it with a bracket welded on the bottom of the

26    gate so this couldn’t slide up and down.    And then a pipe

1    that ran to the center of the road.    And it did that on

2    both sides.    And then off the bottom, it had another sleeve

3    there, kind of — it was like a hinge type setup to where

4    it swiveled on the top of this pipe and braced from the

5    bottom.    And then in the center it had two — the two sides

6    swung in together like this.

7    THE COURT:    Like this, we can’t tell.    So you’re

8    putting your fingers together, so they’re coming together.

9    THE WITNESS:    Real close.

10    THE COURT:    Okay.

11    THE WITNESS:    And then over the top of that, they

12    had a bigger perimeter pipe that could slide over the top

13    of these two pipes coming in sideways.    And on one side,

14    there was a stable eye welded and this other side it had

15    a — it slid back, and I believe the lock was — in fact, I

16    know it had a chain welded to the lock so that somebody

17    couldn’t just take the lock off and throw it away.    More

18    than once we went over and welded it because it got broke,

19    whether it was cabin owners or who we don’t know.    But it

20    would get broken once in awhile, so we would go over and

21    re-weld it for Ed Watt, our former tenant.    And it had a

22    long necked lock that would latch through the eye on the

23    slider part to the solid ring on the one side of the gate,

24    and it was a keyed lock.

25    THE COURT:    Thank you.

26    Q.    (By Mr. Essner) That was going to be my next

1    question.    It was a keyed locked?

2    A.    A keyed locked, right.

3    Q.    And who had keys to the gate?

4    A.    Every tenant.

5    Q.    Let me just stop.    Those are the tenants?

6    A.    Cabin owners.

7    Q.    That lived in the cabins in the community?

8    A.    Right right.

9    Q.    And approximately — let’s talk about when the

10    gate first went in in the late 1950s.    Approximately how

11    many cabins were down at Martins Beach?

12    A.    Let’s see, one was lost — well, in the 50s, that

13    one still would have been there.    So there’s probably 46.

14    Q.    Okay.    So each cabin owner had a key; is that

15    right?

16    A.    Right.

17    Q.    Okay.    Who else had a key as far as you knew?

18    A.    I don’t believe anybody.    Even us, as property

19    owners, I don’t believe we had a key until later years you

20    know, when I got big enough where I wanted to drive down.

21    We didn’t even as owners have a key to it.    It was just the

22    cabin owners, our tenant, Ed Watt.

23    Q.    And Ed Watt was the gentleman that was operating

24    the property and managing the property?

25    A.    That’s right.

26    Q.    So he had a key as well?

1    A.    Oh, yes.

2    Q.    Okay.    So it was the cabin owners and the

3    property manager that had a key?

4    A.    Right.

5    Q.    As far as you know, did anyone from the public

6    have a key?

7    A.    No.

8    Q.    As far as you know, other than the cabin owners

9    and Mr. Watt who was managing the property did anyone else

10    have a key?

11    A.    No.

12    Q.    Let’s talk about when the gate would be locked,

13    okay.    So the gate would be locked at times; is that right?

14    A.    Sure.    Yeah.

15    Q.    Can you tell the Court when the gate would be

16    locked?

17    A.    Well, our tenant would usually open it in the

18    mornings when he was open for business.    And he would latch

19    it, both sides open, and he would keep it open during

20    daylight and business hours.    I believe he closed at like

21    four o’clock and then it would be latched back up.    And

22    then, you know, I mean, there was times that he had other

23    things to do and stuff, and it was left locked all day as

24    well, you know.    But for the days that it was open, he ran

25    and opened and closed it at his — whatever interval he

26    wanted.

1    Q.    So is it your recollection that there would be

2    days that the beach was open and the gate would be open and

3    days that the beach would be closed and the gate would be

4    locked?

5    A.    Correct.

6    Q.    Okay.    And it was Mr. Watt’s decision on when to

7    open and close the gate?

8    A.    That’s right.

9    Q.    Okay.    Was the gate always locked at night?

10    A.    Yes, it was.    It was never — I don’t even

11    remember any time that he had outside parties or anything

12    in my own personal memory where he would have had it open

13    for other things.    I just don’t recall any time.

14    Q.    You said that Mr. Watt ran a business; is that

15    right?

16    A.    That’s right, yeah.

17    Q.    What was the business that he ran?

18    A.    Well, he had — he collected the tolls for the

19    toll road, for cars coming down.

20    Q.    Let’s just stop right there.    How would you

21    describe that business?    Would that be the business of

22    charging for access to the beach?

23    MR. BUESCHER:    Objection.    Leading.

24    THE COURT:    Objection is overruled.    You may

25    answer the question.    Go ahead.

26    THE WITNESS:    Answer?

1    THE COURT:    Yes you may answer.

2    THE WITNESS:    Yes.    He collected for cars.    And

3    at that time, he didn’t collect them all the way at the

4    bottom.    There’s old railroad tracks that ran through

5    there.    He most of the time always had a collector up there

6    so you could see the coast highway.    And it was the only

7    real access to the place, and he would have a person up

8    there collecting for him.

9    Q.    And do you know whether Mr. Watt allowed

10    pedestrians to walk down the road to access the beach?

11    A.    No, no, he never did.

12    Q.    How do you know that?

13    A.    Well, a lot of what went on down there we could

14    see from — we lived in the brick house by the highway and

15    at that time I was pretty young.    And once in awhile we

16    would see — surfers were a pretty rare item.    It’s not

17    known as a great surfing beach.

18    Q.    What time frame are you talking about right now?

19    A.    Oh, back in late 50s, mid 60s up to the 70s

20    probably.    We can see — I mean we were feeding cattle,

21    working with cattle up around by the brick house, which is

22    the one closest to the access.    We could see — I mean we

23    had dogs.    Dogs would always bark if anyone would be

24    walking, and we would hear them bark and we would go look.

25    If they got caught down there, he would tell them, hey, you

26    got to go back and get your car and pay if you’re going to

1    enter.

2    Q.    So if people walked down the road, they would be

3    asked to leave?

4    A.    Yes.    And go back and get their car.    If they

5    were to enter, they had to bring their car in.

6    Q.    Do you recall if you ever while you owned the

7    property had an occasion to call the sheriff to ask

8    trespasses to leave?

9    A.    Yeah, we did multiple times.

10    Q.    Multiple times?

11    A.    Oh, yes.

12    Q.    Explain some of the circumstances that would

13    occur?

14    A.    Well, on a rare occasion, one would get down —

15    or usually what would happen, there were some older retired

16    cabin owners there were there all the time.    One of them

17    worked out in the garden all the time.    If he would see

18    anything, he was a great watch dog for us.    He would give

19    us a call.    There was like three and another guy who

20    actually watched the beach sometimes if we couldn’t be

21    there.    He had a four wheeler.    He actually patrolled,

22    watched the beach and collected cars sometimes if we

23    weren’t around.    But they would all know if anybody

24    saw — most of the tenants didn’t even like — the cabin

25    area, they felt was kind of like their area.    They didn’t

26    want nobody in there.    They would, almost all of them would

1    call us if they saw anybody that happened to get by us, and

2    we would go — we would catch them, because there’s very

3    few — it’s very noticeable of anybody trying to walk in

4    there.    Plus we had — down by the beach, we had a camera

5    up by the gate.    We had two more down by the park at the

6    guest parking area.    So we thought — every now and then we

7    would glance at it.    It was right close to where we had the

8    cash register in our own business there.    And we were

9    pretty well on top of anything of anybody ever trying to

10    come in and out.

11    Q.    If someone came down the road without paying or

12    without the permission of the owner or the manager, what

13    would you do?

14    A.    Well, I would confront them and tell them, hey,

15    you can’t just walk in here.    It’s a toll road.    If you

16    want to come in, go back, get your car, whether it’s a

17    surfboard they’re carrying or whatever, just tell them they

18    got to go get their car, and they’re welcome back down, as

19    long as we had parking room, we would tell them to head

20    back down.

21    Q.    And as long as they paid?

22    A.    Oh, absolutely.    Yeah they had to pay.

23    Q.    And what if they refused to leave?

24    A.    I had a couple do that.    And push come to shove

25    almost a couple of times and I said you know I’m not even

26    going to mess with you.    I’ll just go call the sheriff and

1    I’m going to file charges against you.    And I would walk

2    away and try not to even look back because they would think

3    I wasn’t serious if I was looking to see what they are

4    doing.    When I would hook around the corner to go to the

5    store, they would scurry back up the road.    They didn’t

6    want to have no confrontation with the sheriff, so they

7    would leave.    And we had pretty responsive sheriffs that

8    were helping.    If there was any problem we had, whether it

9    be there or up along the highway, if we had trespassers,

10    they were pretty good about being out there.    I think

11    because they liked Martins Beach as well they used to, you

12    know, come in and out of there fairly regular.

13    Q.    Did the sheriff ever refuse to enforce the

14    trespasser laws when you asked him to?

15    A.    No, never.

16    Q.    And were there occasions where the sheriff would

17    come out to enforce the trespass laws?

18    A.    They came I would say only maybe a couple of

19    times in the years that we ran it that they actually had to

20    sit and confront.    There was times that people would, you

21    know, give us a bad time, but they usually would turn and

22    they would be walking out, so the sheriff really didn’t

23    need to say much to them because they were leaving.    They

24    didn’t — we never had anybody sit toe to toe and argue too

25    much.    Maybe one or two times it got a little testy.

26    Q.    Did the beach when it was open have operating

1    hours?

2    A.    Yeah.    We had certain hours for summer and winter

3    months.

4    Q.    What were the hours in the winter months?

5    A.    Well, they varied.    I mean, a lot of times if

6    there was bad weather conditions that I didn’t like down

7    there or if we had other things to do, we would just close

8    it    up and    not    open it    up at all.
9        Q.    Let    me just    —
10            THE    COURT:    Folks, please.    You’re talking over

11    each other.    The court reporter is trying to take down what

12    you say.    She can’t do that if you’re both talking.

13    MR. ESSNER:    I’m sorry.    That was my fault.    I

14    apologize.

15    THE COURT:    Go ahead.

16    Q.    (By Mr. Essner) So during the winter, you would

17    close the beach during bad weather?

18    MR. BUESCHER:    Objection.    Vague as to time and

19    leading.

20    THE COURT:    No.    Objection is overruled.    You may

21    answer the question.

22    THE WITNESS:    Yeah we would close down any time

23    we can’t have somebody there to watch the property, keep an

24    eye on it, or if it was real bad weather, we didn’t want

25    anybody in there anyway.    So, you know, we would just —

26    you know it wouldn’t be a problem, you know, I mean, many

1    reasons just wasn’t good to have them in there.    So we

2    would just close it down for any period we felt like

3    closing it.

4    Q.    Did anyone ever tell you you weren’t allowed to

5    close your beach?

6    A.    No.

7    Q.    Did the Coastal Commission ever tell you you had

8    to keep your beach open?

9    A.    No.

10    Q.    Did anyone from the County ever tell you you

11    needed to keep the beach open?

12    A.    No.

13    Q.    Did anyone from the sheriffs department tell you

14    you needed to keep the beach open when you closed it?

15    A.    No.

16    Q.    Did anyone from the Coastal Commission ever tell

17    you you needed to keep the beach open?

18    A.    No.

19    Q.    Did anyone from the Coastal Commission ever tell

20    you you needed to get a Coastal Development Permit when you

21    closed the beach?

22    A.    No.

23    Q.    Let me show you a picture.    It’s in your binder.

24    It’s marked as Exhibit 1 49-six.    It’s the — let me see if

25    you have it.

26    MS. YOB:    Your Honor may I approach to help him.

1    THE COURT:    Yes.    Thank you.

2    Q.    (By Mr. Essner) Do you recognize the picture?    I

3    realize it’s a little blurry, but the picture of what is

4    depicted in Exhibit 149-six.

5    A.    Yeah I recognize it.

6    Q.    Can you describe for the Court what that depicts?

7    A.    Well, it pretty much shows the gate.    You can’t

8    see the signs because they’re shaded on the gate.    But one

9    sides shows clearer than the other.    But it shows the

10    swinging gate.    One-half of that gate is still in place

11    now.    The other half fell over.    The side that is shown on

12    this picture, it’s been removed.

13    Q.    It fell over?

14    A.    Fell over, yeah.

15    Q.    And so is that the gate that you installed in the

16    late 1950s?

17    A.    Yeah.    Mr. Watts installed that.

18    MR. BUESCHER:    Objection.    Misstates —

19    thank you.

20    Q.    (By Mr. Essner) Is that the gate you believe was

21    installed in the late 1950s?

22    A.    That’s it.

23    Q.    And is that the side of the gate that is fallen

24    over?

25    A.    That’s the side of that has fallen over, yeah.

26    Q.    Now, could you just flip the page one to

1    149-five.

2    MS. YOB:    May I Your Honor?

3    THE COURT:    Yes.

4    THE WITNESS:    Got it.

5    Q.    (By Mr. Essner) You got it.    Do you recognize

6    that gate?

7    A.    Yeah yeah that’s the gate that I put in.

8    Q.    You put that gate in?

9    A.    I did.

10    Q.    Okay.    And is that the gate that is currently

11    on — at the entrance of Martins Beach Road?

12    A.    Yes, that’s it.

13    Q.    And when did you put that gate in?

14    A.    I would say 1992.

15    Q.    1992?

16    A.    Maybe 91, but I would say 92.    I don’t know an

17    exact date for that but right there.    Right in that

18    neighborhood.

19    Q.    And why did you put this gate in?

20    A.    Well the other one, like I was saying, it was

21    kind of a problem gate.    It hung off of two posts in the

22    ground, and you get wet and dry time of the season, it

23    would tend to start leaning.    And it was hard to line up

24    those pipes.    Tenants were complaining and having problems

25    with it.    It was just failing.

26    So I figured it was time to put something in

1    safer and that wouldn’t be hard to control, you know, as

2    far as anybody manually latching things up, the safety end

3    of it.    It was you know — they didn’t have to be out there

4    at nighttime you know trying to get in and out with a lock

5    or somebody maybe you know because people roaming around at

6    night you don’t know, and it’s right on the coastal

7    highway.    It wasn’t the safest sight for a gate where they

8    had to get in and out to open and close.

9    Q.    So the old gate was failing is that right?

10    A.    Absolutely.

11    Q.    And you put this in —

12    A.    I did.

13    Q.    To maintain a new gate?

14    A.    Right.

15    Q.    And when you put this gate in, did anyone from

16    the County tell you you needed a permit?

17    A.    No.

18    Q.    Did anyone from the Coastal Commission tell you

19    you needed a permit?

20    A.    No.    No.    It was agricultural property.    I never

21    thought about replacement of a gate.    You know I just put

22    it in.    Never thought about anything being needed.

23    Q.    Why do you say it’s agricultural property you

24    never thought about replacement of a gate needed a permit?

25    A.    I don’t know.    We’ve replaced gates other places

26    on the coast and on our ranches we border — never heard of

1    anybody even getting a permit to replace a gate on their

2    you know ag. zone property, you know.    Yet it’s under the

3    Williamson act it’s all ag.

4    Now, I think under the contract Martins Beach is

5    excluded from the Williamson Act but it’s you know on the

6    same access.    We use the same access to go in and out to

7    get our hay out of the fields and do all of our

8    agricultural work.    We use the same road.

9    Q.    At the time that the old gate was falling apart

10    and you put in this new gate, were you using the property

11    for agricultural purposes?

12    A.    We were, yeah.

13    Q.    And at that time, what were the agricultural

14    purposes?

15    A.    Might have had some pumpkins in there and hay.    I

16    believe right along this road here I believe my son grew

17    some pumpkins.    I’m not sure of the timing if it’s exactly

18    the time we — it may have been.    He might have had

19    pumpkins right in this field here about the time we changed

20    that gate.    And then we had hay.    That was just a very

21    small section.    The rest of it was all hay for our cows —

22    to supplement our cattle feed in the winter months.

23    Q.    And when you put in this gate, did you continue

24    to open — when did the Watts stop operating the beach?

25    A.    I believe 92.

26    Q.    And in 92, who started operating the beach?

1    A.    My family, not just me.    Me — my wife ran the

2    store or was the manager of the store.    My daughter at that

3    time I believe just my oldest daughter lived there.    I’m

4    trying to think if my son lived there or not.    I don’t

5    think he did quite then.    But we as a family, everybody

6    chipped in, worked there everyday.    Seven days a week we

7    were pretty well tied down to it as far as the family.    And

8    it was good that we had as many people as we did you know

9    to see to it that all the needs were met and taken care of

10    and watched over.

11    Q.    At some point in time when you owned the

12    property, did you find that the business of selling daily

13    access to the beach declined?

14    A.    Yeah through the years it definitely declined.

15    Back when I was young, we used to go down there and we

16    could catch fish by the truckloads if you really wanted to

17    catch smelt.

18    Q.    How many years ago was that?

19    A.    I’m 65, so since the time I was maybe 12, we —

20    so that’s like 60 — on back in the 60s, it was a — it’s

21    always been noted as a fishing beach.    And through the

22    years you know I think it’s just like a global warming and

23    everything else.    It’s a cycle we’re going through and you

24    know it reverts back eventually but as of now the fishing

25    and all of that end of it, the real business part of the

26    public access, it had been slipping for a long time.    It’s

1    not what it was years ago.    They used to have large crowds

2    and big demand.    I think food source, you know, people

3    didn’t buy it all out of the stores back then.    They went

4    and fished and caught their own food you know.

5    Q.    And when you began operating the business of

6    selling access to the beach, did you find that visitors

7    declined?

8    A.    It was declining a long for quite a few years and

9    it continued to decline because we went some years there, I

10    would say sometimes two, three years with hardly any fish

11    at all.    We had a few old diehards that would still come

12    pretty regular.    I think more for the love of the beach

13    than just the fishing, you know, but the fishing business

14    was definitely on a big decline.    And it still is.    It’s

15    not good yet.    I don’t know this year.    There’s a few fish

16    being caught north but stripers I haven’t heard of any

17    smelts in yet.    I don’t know where they’re going to spawn

18    now but they don’t seem to be coming there.

19    Q.    What about surfers was this a big surf beach?

20    A.    No.    On normal — some days you wouldn’t see any

21    surfers at all.    On our better days, you might see one or

22    two.    The only time Martins Beach is known for a good surf

23    beach is if you get a south swell that might only happen

24    twice a year.

25    Q.    Twice a year?

26    A.    Yeah.    For two — maybe a couple days at a time.

1    Very rarely you got that south swell.    But when it would

2    come, we got a big influx of surfers.

3    Q.    And did you continue to operate the beach when

4    your family took over so that when if you didn’t have

5    someone available you would close the beach.

6    A.    Yeah.    We closed you know on multiple occasions

7    you know for — you know anything taking place, and we also

8    occasionally had a private party that we would close it

9    down to the public and have that private party thing going

10    on.    We had a location kind of on the south end there that

11    was kind of secluded and more to itself and a good area for

12    family parties or something like that.    Sometimes like I

13    say we would have family that would — and there was other

14    groups in there too.    I don’t know that it was all family,

15    but just a private party once in awhile.

16    Q.    So at least once a month, you would close the

17    beach down and essentially rent it out to someone else?

18    MR. BUESCHER:    Objection.    Misstates the

19    testimony and leading.

20    THE COURT:    Objection is sustained.

21    THE WITNESS:    Yeah.

22    Q.    (By Mr. Essner) Let me rephrase the question?

23    A.    Sure.

24    Q.    How often would you close the beach down and rent

25    it out to a private party?

26    A.    It kind of varied.    You know, there was times it

1    would happen more often.    And in sometimes it would go

2    quite a little while before we would do it.    But you know

3    it was back and forth.    There’s just no figuring how or why

4    there would be another need but whenever something like

5    that came up we closed.

6    Q.    And on the occasions when you closed the beach to

7    the public and made a business decision to rent it out to a

8    private party, did anyone from the Coastal Commission

9    approach you and tell you you couldn’t do that?

10    A.    No.    No.    There was nobody that ever questioned

11    us.

12    Q.    Anyone from the County ever tell you you couldn’t

13    do that?

14    A.    No.

15    Q.    Anyone from the County or the Coastal Commission

16    tell you that you needed a Coastal Development Permit to do

17    that?

18    A.    No.

19    Q.    And when you and your family were operating the

20    beach after the 19 — after approximately 1990, is that

21    what you said 1990?

22    A.    Yeah.    I believe he ran it — see we gave new

23    leases to the cabin owners at that time, negotiated a new

24    lease.    And we took it over directly instead of Mr. Watt

25    doing it.    We leased directly to cabin owners.    He

26    continued running the beach for one year.    I would say we

1    actually took it over in 92 about.

2    Q.    Did you continue to enforce the rules that no

3    pedestrians were allowed to walk down the road?

4    A.    Yes, we did.    It’s — yeah.    There’s never been

5    anybody allowed to walk in.    You create too big of a

6    nuisance and a problem.    If we ever let it get started, it

7    would just develop and get worse.    So we just never allowed

8    it to get started.    I don’t know if we were more strict

9    than the previous owner or I mean previous tenant or less,

10    but I don’t think we were any less strict — you know

11    restrictive because we watched it real close.    Most

12    everybody didn’t like the sound of a four wheeler coming.

13    Q.    What do you mean by that, the sound of a four

14    wheeler coming?

15    A.    Well, we had a little four wheeler that we used

16    as an off road vehicle.    There’s only pretty much one way

17    to get down there is down that road.    And if they did go

18    down the road, they can’t go you know and get around us

19    anywhere you know.    And plus like I say, we had tenants up

20    there watching.    We had cameras.    If they would come down

21    that road, we were on them.

22    Q.    And you would ask them to leave?

23    A.    We would.

24    Q.    You had mentioned that the business of charging

25    people access to the beach was in a decline over the years

26    is that right?

1    A.    It was, yeah.

2    Q.    Was that one of the reasons why you sold the

3    property?

4    A.    It was.

5    Q.    Okay.    Thank you.

6    A.    You’re welcome.

7    THE COURT:    Alright.    Cross-examination?

8    MR. BUESCHER:    Yes, Your Honor.



11    Q.    Good morning, Mr. Deeney.    My name is Eric

12    Buescher.    I’m an attorney who represents the Surfrider

13    Foundation in this lawsuit.    Please let me know if you

14    can’t hear any of my questions and I’ll try and speak up.

15    A.    I may have to.

16    Q.    Do you still have the photo of the gate that you

17    installed in front of you?

18    A.    I do.

19    Q.    And so I understand this, the old gate that had

20    been installed when you were a child, you completely

21    removed that gate, correct?

22    A.    No.    One half of it we removed.    The other half

23    is still there.    And you know, it gives you an idea where

24    it was at.    It’s just east of where that — where this gate

25    here is pictured.

26    Q.    I appreciate that clarification.    The gate that

1    is currently there, that’s reflected in that photograph,

2    are both the north and south halves of that gate, were they

3    both installed in the early 90s?

4    A.    Right.

5    Q.    And half of the old gate is there just off to the

6    side?

7    A.    Right.    The other half fell over so I had to

8    remove it.

9    Q.    But the current gate no part of it existed prior

10    to you installing it?

11    A.    Possibly the pin and the north gate the pin that

12    pins it to the ground there.    But I think there was a chain

13    off of the old one that lowered down, that connected to

14    that.    I’m not I kind of forget to be honest.

15    Q.    And what do you mean by the pin?

16    A.    Well, there’s this north part is a swinging gate.

17    It swings in and out.    It’s hinged it swings around.    And

18    it has a drilled pin that goes through with two things up

19    in the side where a bolt goes through and latches and keeps

20    the bolt from coming up so the gate can’t be removed or

21    swung open.

22    Q.    And I want to focus on the north half of the

23    current gate.    Is that portion of the current gate

24    automated or motorized?

25    A.    No.

26    Q.    The south half of the current gate it slides

1    instead of swinging correct?

2    A.    Right.

3    Q.    And is that that portion motorized?

4    A.    It is.

5    Q.    And was it motorized when you installed it?

6    A.    Yes.

7    Q.    You mentioned that there were cameras both at the

8    gate and down on the beach; is that correct?

9    A.    The cameras were — one was at the gate.    There

10    were two down where the road goes to the bottom road and

11    where it turns and goes up to the top road.    There were two

12    down there and then down closer to the bathrooms at the

13    bottom we had a sensor.    If people would walk through

14    there, a little buzzer would go off.    It would clue us in

15    someone was passing.    Quite often we would go out and it

16    was a cabin owner, something like that it was no problem.

17    But if somebody walked in, it gave us plenty of time to get

18    to them.

19    Q.    I want to make sure I understand.    There were

20    three cameras plus a motion detector?

21    A.    Right.

22    Q.    Okay.    The camera that was at the gate, is that a

23    video camera or a still photography camera?

24    A.    You know, I don’t remember much about it.    I know

25    we had a camera there.    But it was up on the post.    It

26    wasn’t very visible, you know, as far as — you know, and I

1    don’t know that it worked 100 percent of the time.    But

2    just even having a camera there made people — less likely

3    to fool with your gate, if they saw something there.

4    Q.    I appreciate that.    Do you know when the camera

5    that was at the gate was installed?

6    A.    In the 90s — probably, probably mid 90s.

7    Q.    After you built that current gate?

8    A.    Right.

9    Q.    Have you ever seen any photographs or video that

10    that camera took?

11    A.    Back at the time but not — it’s nothing we kept.

12    Q.    Do you know if that camera is still there?

13    A.    No.    No it’s gone.

14    Q.    Do you know when it was removed?

15    A.    I don’t.

16    Q.    Do you know if it was removed before you sold the

17    property?

18    A.    I don’t remember seeing it at that time so I’m

19    guessing that it either was removed or fell down.

20    Q.    And then the two cameras that are at where the

21    road turns, you’re talking about Martins Beach Road goes

22    west toward the highway and then turns south correct?

23    A.    If you’re driving down Martins Beach Road?

24    Q.    Yes.

25    A.    Yeah.    It goes down, makes kind of a swing around

26    and then heads down to the beach.    Well, just before the

1    bottom, it heads along the upper cabins, there was two

2    cameras there.

3    Q.    And the same question.    Do you know when those

4    cameras were installed?

5    A.    Probably early 90s.

6    Q.    About the same time as the one at the gate?

7    A.    Roughly.    The one at the gate might have been

8    just a year or so after.

9    Q.    Thank you, sir.    And, again, do you know if those

10    were video or still photography cameras?

11    A.    I know they projected on a screen that we had

12    down at the store.

13    Q.    And do you know if those cameras existed when you

14    sold the property?

15    A.    I couldn’t answer that for sure.    I think they

16    existed.    I wouldn’t swear 100 percent that they were still

17    operational but I kind of think if they were turned on,

18    yeah, that they would still be.    But I can’t swear to that.

19    Q.    I appreciate that.    You mentioned that your

20    family had leased the beach to Ed Watt and his wife,

21    correct?

22    A.    Right.

23    Q.    Do you know how long that the Watt family ran the

24    beach?

25    A.    Ed Watts dad started it up.    He worked as a black

26    Smith with my dad in Half Moon Bay.    And my dad suggested

1    to him come down for a weekend job to collect cars at the

2    beach.    Maybe you know he could strike up a little business

3    there.    So that started in I believe he started it in ’22.

4    Didn’t move down thereto live and run it 100 percent of the

5    time until ’24.    And then from then on he continued.

6    That’s when they built most of the cabins back in the ’20s.

7    Q.    I apologize?

8    A.    Pardon me.

9    Q.    I apologize.    Go ahead?

10    A.    Well the last one that I know of I think was

11    built like in the 50s.

12    Q.    It’s fair to say that the Watt family ran the

13    beach for about 70 years?

14    A.    Close to it, yeah.

15    Q.    And then your family ran it for between 15 and 20

16    after that?

17    A.    Yeah.

18    Q.    Do you surf, sir?

19    A.    No.

20    Q.    Have you ever?

21    A.    No.    I went after abalones in the ocean but no

22    surfing.    We went fishing though.

23    Q.    I appreciate that.    Were you ever asked — let me

24    back up.    Do you know Mr. Baugher who is sitting in the

25    courtroom with us?

26    A.    I do.

1    Q.    Were you ever asked by Mr. Baugher when the

2    current gate was constructed?

3    A.    I don’t recall if he mentioned it or asked.    I

4    don’t know.

5    Q.    Were you ever asked by any of the attorneys for

6    the LLC when the current gate was constructed?

7    A.    I don’t know that they did.    We talked about the

8    building of it but I didn’t know nothing about — I don’t

9    think any question of how or when it was constructed.

10    Q.    What do you mean when you say we talked about the

11    building of it?

12    A.    That I had put that gate there.

13    Q.    And when was that conversation approximately?

14    A.    Jeez, I guess a couple of weeks ago.

15    Q.    You mentioned there was a store down on the

16    beach, correct?

17    A.    Correct.

18    Q.    And both the Watt family and then eventually your

19    family I believe your wife ran that store.

20    A.    Yeah.    My wife ran it from the time we took it

21    over.

22    Q.    Were there also restrooms for the public on the

23    beach?

24    A.    There was.

25    Q.    Was the store open at the time you sold the

26    property?

1    A.    Yeah, I believe it still was.    Usually only

2    summer months.    The rest of the time, no.    It was — it was

3    closed more than it was open, but we did open in the summer

4    months when we had people come fishing.

5    Q.    Do you know if the restrooms functioned at the

6    time that you sold the property?

7    A.    I think pretty much so, yeah.    They were you know

8    in need of repair, but they were you know — I believe they

9    were still working.

10    Q.    Did you ever provide any instruction to the Watt

11    family about the hours of operation that they would run the

12    beach?

13    A.    No.

14    Q.    Are you aware of whether anyone in your family

15    did?

16    A.    Not that I’m aware of, no.

17    Q.    So they made that decision as far as you know on

18    their own?

19    A.    As far as how and when they open and closed and

20    all of that.

21    Q.    Correct?

22    A.    Yes, they did.    I don’t know if I should add this

23    but they actually closed — had a shorter day than what we

24    did when we ran it.

25    Q.    In terms of?

26    A.    Hours.

1    Q.    The hours?

2    A.    Yeah.

3    Q.    You mentioned that when your family ran the

4    beach, it was a seven day a week job?

5    A.    For sure.

6    Q.    Does that mean that the beach was open seven days

7    a week?

8    A.    Not always, no.

9    Q.    More often than not?

10    MR. ESSNER:    Objection.    Vague.

11    THE COURT:    The objection is overruled.

12    THE WITNESS:    It was open more than it was not

13    open, yes.    On occasion, it was shut down completely as

14    well though.

15    Q.    (By Mr. Buescher) Did you ever close the beach

16    permanently?

17    A.    How do you define permanently.

18    Q.    Did you ever make a decision that you were going

19    to close the beach and no longer allow the public to enter?

20    A.    No we did not.

21    Q.    And you indicated that there was some diehards

22    that would come down for the love of the beach correct?

23    A.    Some of our fisherman, yes.

24    Q.    Is it fair to say that there were people who

25    treasured Martins Beach and would come there?

26    A.    Treasured it?    The fishing, probably.

1    Q.    And you — both you and the Watt family before

2    you, you provided this service to the public so that they

3    could use this beach?

4    A.    Yeah.    We provided access.

5    Q.    With respect to the times that the beach was open

6    or closed, are you aware of any written documents that

7    reflected the hours of operation?

8    A.    There were no written documents.

9    Q.    Was there any written policy reflecting when

10    access would or would not be provided?

11    A.    No.

12    Q.    Do you know if there was anything in writing that

13    reflected that people were not allowed to walk down Martins

14    Beach Road?

15    A.    On one of our signs we had written on it no walk

16    ins.

17    Q.    Where was that sign?

18    A.    Up by the highway up close to the road.

19    Q.    Was it on the gate itself?

20    A.    I don’t know if it was on the gate or posted like

21    maybe that first post right past, but it was right close.

22    It was visible from the gate area.

23    Q.    You mentioned that a couple of times the sheriff

24    came down to the property when there was a dispute with

25    somebody who was there correct?

26    A.    Uh-huh.

1    Q.    Did you ever file charges against any individual

2    for trespassing on the property?

3    A.    We never needed to, no.

4    Q.    Are you aware of whether the County ever

5    prosecuted an individual for trespassing on the property?

6    A.    I don’t believe for trespassing.    There could

7    have been a disturbance a time or two.

8    Q.    What happened do you mean by disturbance?

9    A.    Well somebody on the beach getting into a tussle

10    with somebody else.    I don’t know what took place in those

11    days.    It wasn’t during the time that we ran it.

12    Q.    But during the time that you ran the beach from

13    1992 or so until the sale, you never filed charges against

14    anyone for trespassing?

15    A.    No.    We did — through the Farm Bureau they gave

16    us citations for — in case somebody was trespassing on

17    your property.    I would put one of those on a car one time.

18    Q.    A trespassing    citation?
19    A.    Yeah.
20    Q.    On a car that    had parked on the beach?
21    A.    No, up at the    highway.    I don’t know that they

22    were on the property, but I put it there anyway to kind of

23    defer them from ever thinking it, that they could go in.    I

24    don’t know that the County followed up on those.    I don’t

25    know how valuable you know they were.

26    Q.    Fair enough.    And during the winter months

1    when — let’s start with the time that your family ran the

2    property — the beach was open to the public sometimes?

3    A.    On and off, yeah.

4    Q.    But you didn’t close it for the entire winter?

5    A.    Entire winter, no.

6    Q.    Have you been to the property recently?

7    A.    I go down there almost every day.    Well I

8    shouldn’t say everyday.    Probably three days a week.

9    Q.    And do you go down the road?
10    A.    I go as far as the water system.    The old

11    railroad tracks across at the end of the first straightaway

12    they go to the north and south.

13    Q.    You go past the gate?

14    A.    Oh yes.

15    Q.    The sun — I apologize?

16    A.    Oh, I’m sorry.    I also you know watch the fields

17    as we always have, because I don’t want people going out

18    into the fields and messing up our farm crops.

19    Q.    Are the crops that are grown at Martins Beach

20    your family’s property?

21    A.    The crop itself, yes.

22    Q.    Are you aware as to whether the signs that are

23    just past the gate that you described, the one that used to

24    say no walk ins for example, of whether those signs still

25    exist now?

26    A.    You know, I don’t know.    I’m not sure.    I kind of

1    don’t watch it the way I used to.    My son kind of watches

2    over and manages it.    If I see something kind of out of

3    line, I always try to inform them.    But I try not to get

4    too involved in it.    I don’t want to say the wrong thing.

5    Q.    I just want you to be honest with me?

6    A.    Sure.

7    Q.    You mentioned that you used to get large crowds

8    down at the beach sometimes as well, correct?

9    A.    Uh-huh.

10    Q.    That would be for fishing or certain times when

11    the surf was very good?

12    A.    Usually the large crowd days were I would say on

13    holiday weekends like fourth of July.    The fishing thing

14    depleted considerably.    There was never, when we had it,

15    large crowds from fishing crowds, which — the history of

16    the beach is the fishing part of the beach.    That’s what

17    people wanted to go there for.

18    Q.    Going back all the way to the 1920s?

19    A.    Yeah.

20    Q.    And you mentioned that periodically you would

21    close for private events and that sort of thing?

22    A.    Right.

23    Q.    What kind of events are we talking about?

24    A.    Oh, there were parties, like organizations that

25    had parties there.    We closed for those.    There were

26    occasions that a family member who was watching at the time

1    couldn’t watch it we would close for that period.    If I was

2    gone and any time something didn’t you know work out good

3    for us to have people watching, we would just lock it up

4    for the day.

5    Q.    But it was always your intention to reopen it to

6    the public?

7    A.    Yeah.    We usually always reopened back

8    eventually, you know.    I mean at the end of whatever the

9    reason for closing was.

10    Q.    So somebody may rent it out for a Friday

11    afternoon party or that evening but then that weekend it

12    would be reopened?

13    A.    Yes.

14    Q.    (By Mr. Buescher) I have no further questions?

15    THE COURT:    Thank you.    Redirect.

16    MR. ESSNER:    Just a couple of quick questions.

17    Q.    Did you ever have occasion to have cars towed

18    that were parked at Martins Beach if they didn’t pay the

19    admission fee?

20    A.    Right.    We did — we had it posted for — with a

21    local towing companies number.    And you know, I forget

22    exactly what it said.    But if your car has been towed

23    please contact whatever the company’s name was.    But we had

24    several towed through the years.

25    Q.    So if they didn’t pay, they would get towed?

26    A.    Right.

1    Q.    And let me ask you to turn to Exhibit 1 48?

2    MS. YOB:    May I approach Your Honor.

3    THE COURT:    Yes.

4    MR. BUESCHER:    I’m going to object, Your Honor.

5    This document was not introduced to us during discovery.

6    It was produced in other litigation.    They’ve had it for a

7    substantial amount of time.    The first time we saw it was

8    when they disclosed their exhibit list the day of trial.

9    THE COURT:    Your response?

10    MR. ESSNER:    This document is available on Web

11    pages and it’s just a publicly available document.

12    MR. BUESCHER:    We produced several photos that

13    were publicly available on Web pages.    We have never seen

14    this document before trial.

15    THE COURT:    So the issue is why didn’t you

16    produce it?

17    MR. ESSNER:    I didn’t know it existed until I did

18    the Web search.

19    MR. BUESCHER:    Your Honor, it has a Bates stamp

20    FMB 31.    That’s Friends of Martins Beach.    That’s the other

21    litigation that Ms. Essner and Ms. Yob represent the

22    defendants in.

23    MR. ESSNER:    I don’t see any Bates stamp.

24    THE COURT:    I don’t either.

25    MR. BUESCHER:    In the lower right-hand corner, of

26    the bottom right parking pass it says FMB 31.

1    THE COURT:    Mine just says Defendants’ Exhibit.

2    Anyway.    Okay.

3    MR. BUESCHER:    Will you agree with me that it’s

4    Bates stamped?

5    MR. ESSNER:    I didn’t see it.    I agree with you.

6    THE COURT:    So any further response?

7    MR. ESSNER:    No.    I think it should be admitted.

8    THE COURT:    Alright.    Well, no.    The Court is

9    going to deny that request.

10    MR. ESSNER:    Would the Court allow me to ask

11    questions about this.

12    THE COURT:    Yes you can.

13    MR. ESSNER:    Thank you.

14    Q.    (By Mr. Essner) When a car entered the property

15    and they paid their fee were they given some sort of piece

16    of paper to place on their windshield to indicate that

17    they had paid?

18    A.    Right.    The guest — at the bottom, we usually

19    had multiple colored parking tickets we would use, and we

20    would trade them off certain days.    And a lot of times, it

21    would be dated so we knew it was good for that date.    I

22    mean occasionally somebody would try to come in and falsify

23    one, but it’s not something that work.    But we always gave

24    them tickets — entry tickets.

25    Q.    And the tickets had a coloring system so, for

26    example, on a certain day, you would give out red tickets

1    and then on a different day, you would give out a different

2    color?

3    A.    Right.    It made it easy to spot, you know, if

4    they came in, we could tell which color and whether it was

5    current.

6    Q.    And were the licensees, the people paying the

7    money to come onto the beach were they told to display the

8    ticket on their dashboard?

9    MR. BUESCHER:    Objection.    Legal conclusion as to

10    licensees.

11    THE COURT:    Restate the question please.

12    Q.    (By Mr. Essner) The people that paid the money

13    to come onto the beach for the day were they told to place

14    the ticket on their dashboard?

15    A.    Yeah.    We preferred they put it on their

16    dashboard instead of putting it under the windshield wiper

17    because it’s too easy for somebody to grab it and hand it

18    off or whatever.

19    Q.    If the car didn’t have the ticket displayed it

20    was at risk of being towed?

21    A.    Correct.

22    Q.    And you did tow cars?

23    A.    Oh yes.

24    Q.    Frequently?

25    A.    It varied.    We would run in streaks, sometimes

26    you wouldn’t have a problem for a long time.    Pretty soon

1    you would get a few.

2    Q.    When you sold the property to my client, were

3    there any contents inside the store, do you recall?

4    A.    I don’t believe very much.    I think we cleaned

5    the place out pretty much.    I don’t know.    There might have

6    been an old stove or something.

7    Q.    Thank you.

8    MR. BUESCHER:    Nothing further, Your Honor.

9    THE COURT:    I will indicate that I do see about I

10    would say two-inches from the bottom there there’s the FMB

11    31.    So I do see that.

12    MR. BUESCHER:    Thank you, Your Honor.

13    THE COURT:    Thank you sir.    You may step down.

14    THE WITNESS:    That does it?

15    THE COURT:    Yes.    Thank you.    Next witness?

16    MR. ESSNER:    Yes.    We’re going to call Jimmy

17    Deeney.    Actually, I think we’re going to change our order.

18    I didn’t know we had another witness that arrived.    And so

19    I think I’m going to ask — let me just check and make sure

20    she’s outside, if I may.

21    THE COURT:    Sure.    Yes.

22    MR. ESSNER:    Thank you.

23    THE CLERK:    Please stand and raise your right

24    hand.

25    Testimony of,


1    called as a witness on behalf of the Defendants, and

2    having been first duly sworn, testified as follows:

3    THE CLERK:    Thank you.    Please be seated.

4    MR. ESSNER:    Your Honor, before we get started, I

5    would just like to move to admit pictures that I referred

6    to during Mr. Deeney’s testimony into evidence.    Exhibit

7    149-five and Exhibit 149-six.

8    THE COURT:    Any objection?

9    MR. BUESCHER:    No objection, Your Honor.

10    THE COURT:    Alright.    Exhibits 149-five and

11    149-six will be admitted.

12    (Defendants’ Exhibit No. Was Admitted Into Evidence.)

13    THE CLERK:    Can you please state and spell your

14    first and last name for the record.

15    THE WITNESS:    Yes.    My name is Joan Gallo,

16    J-o-a-n, G-a-l-l-o.

17    MR. ESSNER:    If I may, Your Honor, I’m just going

18    to switch binders because that one is not going to be

19    relevant.

20    THE COURT:    Thank you.    You may go ahead.


22    BY MS. YOB:

23    Q.    Good morning, Ms. Gallo.

24    A.    Good morning.

25    Q.    Can you tell the Court what your current

26    occupation is?