connie morris deposition

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RMS COURT REPORTING SERVICE - (949) 859-0787

(MORRIS)

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF ORANGE MAHMOOD REZAI, ) ) ) Plaintiff, ) ) vs. ) Case No. ) 30-2013-00686136- HARBOR POINTE-NEWPORT OWNERS ) CU-OR-CJC ASSOCIATION, a Nonprofit Mutual ) Benefit Corporation, MICHAEL ) CROSSLEY, CONNIE MORRIS, ) GEORGIA W. HICKINGBOTHAM, ) HOUSHANG KHADEMI, and DOES 1-10 ) INCLUSIVE, ) ) Defendants. ) ________________________________) Deposition of: CONNIE L. MORRIS Date and time: Thursday, February 12, 2015, 10:13 a.m. Location: 30011 Ivy Glenn, Suite 121

Laguna Niguel, California 92677 Reporter: Roxann M. Strid, CSR Certificate No. 4842

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Deposition of CONNIE L. MORRIS, taken before Roxann M. Strid, Certified Shorthand Reporter, Certificate No. 4842, with principal office in the County of Orange, commencing at 10:13 a.m., Thursday, February 12, 2015, at the Law Office of Tracy Ettinghoff, located at 30011 Ivy Glenn, Suite 121, Laguna Niguel, California. APPEARANCES OF COUNSEL: For the Plaintiff: LAW OFFICE OF TRACY ETTINGHOFF Attorneys at Law

BY: TRACY ETTINGHOFF, ESQ. 30011 Ivy Glenn

Suite 121 Laguna Niguel, California 92677 (949) 363-5573

For the Defendant Harbor Pointe-Newport Owners Association: HAIGHT BROWN & BONESTEEL LLP Attorneys at Law BY: CHRISTOPHER KENDRICK, ESQ. 555 South Flower Street Forty-Fifth Floor Los Angeles, California 90071

(213) 542-8000

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APPEARANCES (CONTINUED): For the Defendants Georgia W. Hickingbotham and

Houshang Khademi: THE NAPOLES LAW FIRM Attorneys at Law BY: STEVEN R. NAPOLES, ESQ. 120 Vantis Suite 300

Aliso Viejo, California 92656 (949) 540-6767

For the Defendant Michael Crossley (Appearing Telephonically): LITCHFIELD CAVO LLP Attorneys at Law BY: CHRISTOPHER CHAPLIN, ESQ. 251 South Lake Avenue Suite 750 Pasadena, California 91101-3003 (626) 683-1100

ALSO PRESENT: Mahmood Rezai Hal Morris

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I N D E X Witness: CONNIE L. MORRIS Examination: Page BY MR. ETTINGHOFF ----------------------------------- 6 BY MR NAPOLES ------------------------------------- 109 E X H I B I T S Description Page 1 Grant Deed dated 3/12/14, two pages 10 2 Harbor Pointe-Newport Owners Association, 28

Rules & Regulations And Architectural Guidelines, Amended and Adopted by the Board of Directors May 11, 2005, 12 pages 3 Harbor Pointe-Newport Owners Association 31 Board Of Directors Meeting, General Session Minutes, June 4, 2013, five pages 4 Declaration Of Connie Morris, five pages 32 5 Recorded Agreement For Landscaping 66 Variance, "Recording Requests By And When Recorded Return To: Michael Crossley", dated 12/11/13, six pages 6 Photocopy of two Mailing Envelopes, 89 Bates stamped HPNOA 0000081, one page

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E X H I B I T S (CONTINUED) Description Page 7 Recorded Agreement For Landscaping 108 Variance, "Recording Requests By And When Recorded Return To: Hal Morris, Trustee, Connie Morris, Hal Morris Companies, Inc., VEBA", dated 12/11/13, six pages INFORMATION REQUESTED: QUESTIONS NOT ANSWERED: Page Line Page Line (None) 9 17 44 14

NOTATIONS FOR COUNSEL Page Line (None)

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LAGUNA NIGUEL, CALIFORNIA - THURSDAY, FEBRUARY 12, 2015 10:13 A.M.

CONNIE L. MORRIS

called as a witness, and having been first duly sworn by the Certified Shorthand Reporter, was examined and testified as follows:

EXAMINATION BY MR. ETTINGHOFF:

Q Would you, please, state your name for therecord and spell it so the court reporter can take itdown.

A Connie, C-o-n-n-i-e, L., like Larry, Morris,M-o-r-r-i-s.

Q All right. Ms. Morris, my name is Tracy Ettinghoff and I represent Mahmood in this lawsuitand we're here to get some information from you todayunder oath, and the proceeding that we're doing iscalled a deposition.

Have you ever had your deposition taken?A No.Q Okay. Let me just go over some of the ground

rules so you understand what is happening.The court reporter is seated to my right here

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and she's going to take down everything that's saidduring the deposition in shorthand form and then at theconclusion of the deposition, she transcribes it into abooklet which is called the deposition transcript, allright?

A Okay.Q You'll have an opportunity to review the

transcript after it's prepared and to make sure thatit's accurate, okay?

A Hm-hmmn.Q And if there's anything in it that you feel is

inaccurate, you can make changes to the transcript;however, you're under oath today and the testimony thatyou give during the deposition is the same type oftestimony that you give while you're testifying incourt. It is under oath, and so I want to caution youthat if you make any changes to the transcript afteryou've answered a question during this proceeding today,we can comment upon that at the trial because you'reunder oath right now; do you understand that?

A Yes.Q I also want to just let you know that all of

your answers have to be audible because even though youmight shake your head like this, (indicating), and Imight understand what that response is, it won't show on

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the record because she doesn't take down nods of thehead. She only can record audible responses.

So whenever I ask you a question, you do needto answer audibly, all right?

A All right.Q Okay. Also, I don't want you to guess at the

answer to any question. If there's some reason why youeither don't have a good answer -- I mean, you don'teither remember or you don't understand my question --

A Hm-hmmn.Q -- I want you to tell me that you don't

understand it and I'll try to rephrase it so you dounderstand it.

I'm not trying to trick you. I just want toget your best testimony, okay?

A Okay.Q All right. Are you under any kind of

medication today that would prevent you from givingaccurate testimony?

A No.Q Okay. Let's see. Do you live at number 4

Harbor Pointe in the Harbor Pointe-Newport community?A Yes.Q And how long have you lived there?A 20 years.

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Q All right. Are you familiar with the Hal Morris Companies, Incorporated?

MR. KENDRICK: I'm going to -- I'm going toobject to any line of inquiry into the business of theHal Morris Companies as involving private information ofthird parties, confidential information, trade secrets,and with that general statement, you can go ahead andask her a question, so --

MR. ETTINGHOFF: I only asked her if she wasfamiliar with it.

MR. KENDRICK: You can answer that one.THE WITNESS: Yes.

BY MR. ETTINGHOFF: Q Okay. And are you familiar with the Hal Morris

Companies, Incorporated, VEBA, V-E-B-A?A Yes.Q And do you have an understanding of what that

is?MR. KENDRICK: I'm going to object, that that

just involves confidential proprietary information andprivate information, third parties' financialinformation, and I think generally she can testify as towhat her understanding of it is, but into anyparticulars, I'm not going to let her answer that.

MR. ETTINGHOFF: Well, I -- we're -- in the

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litigation, one of the issues is who was on the title,so I'm just trying to determine who the title was heldby.

MR. KENDRICK: The association and Ms. Morrisare willing to stipulate as to who was on the title --

MR. ETTINGHOFF: Well -- MR. KENDRICK: -- and we've produced copies of

the recorded documents showing who was on the title,when they were on the title, and so any furtherinformation is also irrelevant and I'm going to object.I'm going to instruct her not to answer.

(Exhibit 1 was marked for identificationby the Certified Shorthand Reporter, a copy ofwhich is attached hereto.)

BY MR. ETTINGHOFF: Q Okay. Let me mark what we'll call Exhibit

number 1 and have you review that. This is a copy of adeed that was recorded on March 12th, 2014.

(Document handed to counsel).MR. NAPOLES: Thank you.

BY MR. ETTINGHOFF: Q Do you recognize that?A Yes.Q And this is a document which appears to be

signed by your husband. Is that your husband,

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Hal Morris?A Yes.Q Okay. And by this document then, your husband

added you to the title to the property at 4 HarborPointe?

A Yes.Q Prior to that date, on March 12th, 2014, was

your name ever on the title to any property inHarbor Pointe?

A I thought it was.Q But to your knowledge, you don't have any

information to show that it was then?A I guess not.Q How many times have you served on the board of

directors at Harbor Pointe-Newport?A Probably 13 years.Q And do you know the years that you served on

the board, which years they were?A Well, 2003 -- I was off two years.Q You were off for two years?A Hm-hmmn.

THE REPORTER: "Yes"?THE WITNESS: Yes.

BY MR. ETTINGHOFF: Q When you say "off", you mean you were on

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vacation or you were just not on the board?A I was not on the board.Q So that was around the 2003/2004 time period or

when?A No. Let's see. 2012 and about 2007.Q Okay. I'm confused.

In 2012 and 2007 --A I didn't run on 2012.Q Okay. So in 2012, you did not run?A Right.Q And in 2007, you did not run?A I -- I don't remember if I ran. Q So are your annual elections usually in

September?A Yes.Q Okay. So for the September 2012 election, you

did not run?A No.Q Okay. I'm not trying to make this complicated.

I just want to make sure I understand what years youwere on the board.

Were you on the board between --A I was not on the board when Danni Sun and

Frank Hickingbotham and Mahmood were on. I did not runthat year.

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Q That would be from September of 2012 tillSeptember of 2013?

A Exactly.Q Okay. Did you also say that you were not on

the board in the time frame of around 2007?A Approximately, hm-hmmn.Q Okay. And that was a one-year period when you

were not on the board?A Hm-hmmn.Q Okay.


BY MR. ETTINGHOFF: Q Do you know whether any of the other members at

the Harbor Pointe-Newport Community Association wereaware at the times when you were elected previously,that you were not on the title to the property at 4 Harbor Pointe?

A No.Q You don't have any information?A No.Q Okay. Have you ever served on the

architectural committee for the association?A Yes.Q Okay. And from the times that you have been on

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the board, has the architectural committee always beenthe same as the board?

A Yes.Q They've never had a separate architectural

committee?A No.Q Do you know whether or not you were on the

board in the approximate time period of 2005?A I -- yes, I believe I was, hm-hmmn.Q Are you aware of any other disputes in the

Harbor Pointe-Newport Community Association about viewssince you've served on the board, other than Mahmood'sdispute?

A No.Q Do you remember a dispute about views that

Bill Adams was involved in? Do you know who Bill Adams is?

A I do.Q Okay. Wasn't Bill Adams on the board

previously?A Yes, but not with me.Q Oh, he served --A Different time.Q -- at a different time?A Hm-hmmn.

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Q Was he on the board before you became --A Yes.Q -- on-board? A Hm-hmmn.Q Okay. And did you ever hear about a view

dispute involving Bill Adams?A No.Q So you've never heard of any other view dispute

at Harbor Pointe-Newport, other than the one thatMahmood has going on right now?

A That's right.Q Has anybody else in the community, other than

Mahmood, to your knowledge, ever complained about theirview being blocked?

A To my knowledge, no.Q So the board -- neither the board or the

architectural committee has ever been asked to resolveany dispute between members concerning a view, otherthan the current dispute that is going on withMahmood Rezai?

A To my memory, no.Q Have you personally ever gone to Mr. Rezai's

house to see what the view obstruction looks like fromhis home?

MR. KENDRICK: I'm going to object that your

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question assumes that there's a -- there is a viewobjection -- or a view obstruction.

If you could rephrase it in a way --BY MR. ETTINGHOFF:

Q Have you ever been to Mahmood's house to seethe view from his property?

A Yes.Q When were you there?A I don't remember when.Q Do you remember how long ago it was?A A number of years.Q Was it more than two years ago?A Yes.Q Was it more than five years ago?A I don't remember.Q What was the occasion that you were at

Mr. Rezai's home for when you were there?A He wanted us to go look at his view. He has

the best view in the whole community.Q So you went to Mr. Rezai's house for the

purpose of looking at his view?A He invited us to come, my husband and I, to

come look at the view.Q Was the purpose for looking at the view, was he

complaining about his view being obstructed or was he

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just showing you his house and saying, "Oh, look at mybeautiful view"?

A I don't remember him complaining about theview, no.

Q Have you been there more than one time or onlyone time?

A No, one time.Q Okay. You've only been to his house one

time --A Yes. Q -- to look at his view?A Right.Q Okay. A One other occasion, he had the community in for

a holiday gathering.Q Did you attend that?A Yes.Q And do you remember when that was?A No.Q And did you look at the view --A No.Q -- on that occasion?A Hmmn-hmmn.Q Was that at nighttime?A Yes.

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Q So you don't have any estimate of when thistime was that you went to his house to look at -- forthe specific purpose of looking at his view?

A It was before he did his new construction; Iknow that.

Q Before he remodeled the home?A Hm-hmmn.


BY MR. ETTINGHOFF: Q Okay. If I told you that he remodeled his home

in approximately 2009, would that refresh yourrecollection as to when this might have happened?

A No, it doesn't refresh my recollection.Q Okay. Do you think it might have been more

than five years ago?A Possibly.Q Have you ever been to Mr. Rezai's property

after he remodeled his home?A No.Q How did you know that he remodeled his home?A Because he had to get approval, architectural

approval.Q And you were on the board when he sought --A Yes.

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Q -- architectural approval?So just so I have the record clear then, to the

best of your recollection, you haven't been toMr. Rezai's home to look at the view from his home sincebefore he remodeled his home; is that correct?

A That's correct.Q All right. Have you ever been asked to --

while you were on the board or the architecturalcommittee, to resolve any dispute concerning Mr. Rezai'sview?

MR. KENDRICK: I'm going to --THE WITNESS: Yes. MR. KENDRICK: -- object to the question that

it's vague and ambiguous as to what you're talking aboutresolve any dispute as to the view.

MR. ETTINGHOFF: Well, one of the provisions inthe CC&R's, as you know, states that if there's adispute between owners concerning a view, the disputeshall be submitted to the architectural committee whichshall make the decision about that.

MR. KENDRICK: Is that the wording of the --MR. ETTINGHOFF: It's something to that effect

and so I'm just trying to find out from her whethershe's ever been on the board or the architecturalcommittee when it was asked that she or the board when

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she was serving on it resolve a dispute concerningMr. Rezai's view.

MR. KENDRICK: I'm still going to object tothat. I think the wording has to do with the authorityof the board to grant variances and I'm not sure it justsays anything in general about resolve a dispute; Imean, the board and the ARC have specific duties andauthorities, and with that objection, I'm going to sayif you can answer that, go ahead.

If you can reask your question, go ahead.BY MR. ETTINGHOFF:

Q Do you understand the question?A Yes, I understand.Q Okay. And let me repeat it then just so we can

understand.I'm trying to find out if you while serving on

the board of directors at the association or on thearchitectural committee were ever in the position ofhaving to resolve a dispute concerning Mr. Rezai's view.

A To my recollection, yes, once.Q Do you recall when that was?A I do not recall.Q And do you remember what the nature of the

dispute was?A It was between Mahmood and number 8.

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Q Number 8 was --A Hans.Q -- Khademi?A Hm-hmmn.

MR. KENDRICK: "Yes" or "no"?THE WITNESS: Yes.

BY MR. ETTINGHOFF: Q All right. So you remember a dispute between

Mr. Rezai and Mr. Khademi about Mr. Rezai's view?A Yes.Q Okay. Can you tell me what that dispute was?A No, I do not recall.Q All right. And you don't have a recollection

as to the approximate time frame when that occurred?A No.Q Do you recall what the resolution of that

dispute was?A On recommendation of the property manager at

that time, he said this was a neighbor-to-neighbordispute.

Q So the association didn't make any decisionabout it?

A Correct.Q When that dispute arose between Mr. Rezai and

Mr. Khademi about his view, did you or any other members

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of the board go to Mr. Rezai's property to see what theview dispute was about or to see the effect ofMr. Khademi's trees on Mr. Rezai's view?

A I don't remember.Q So while you've served on the board at the

association or the architectural committee, you yourselfhave never personally been involved in the resolution ofany view disputes; is that correct?

MR. NAPOLES: Objection, misstates priortestimony.

MR. KENDRICK: Yeah, I'm also going to objectto the form of the question as assuming some facts thataren't in evidence and potentially being vague andambiguous with regard to what's a dispute and what theduties of the board are under the CC&R's, thearchitectural guidelines and other governing documents.BY MR. ETTINGHOFF:

Q Well, let me rephrase the question just so youunderstand what I'm trying to find out.

Do you recall ever serving on the board at theassociation or the architectural committee when you wereengaged in the process of trying to resolve a viewdispute, other than the dispute that Mr. Rezai has goingon right now?

A I do not recall.

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Q You don't recall any other view disputes?A No.Q So you personally have never been asked to

decide then whether somebody's view at Harbor Pointe isunreasonably obstructed?

A No.Q And you haven't heard of any other disputes

regarding views, other than the dispute that Mr. Rezaihas going on at Harbor Pointe?

A Well, inside the community you're talkingabout?

Q Yes.A Outside the community there's been issues with

neighbors across the street out of the community, butno.

Q Oh, what was the dispute with neighbors outsideof the community?

A Neighbors that resided in number 11 wanted theview opened up across the street where there's a lot offoliage, so --

Q Oh, the --A Across San Miguel.Q Okay. And that that foliage was not within the

Harbor Pointe --A No.

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Q -- Newport community?A That's what I said.Q Oh, okay. So to your knowledge, has the

association ever enforced the provision in the CC&R'sthat requires homeowners to maintain the trees on theirlot to a height not to exceed their ridgeline?

MR. KENDRICK: I'm going to object, thatthat -- that assumes that facts aren't in evidence andpotentially misstates the scope of what's -- what's thegoverning documents specify in terms of the board'sobligation to resolve disputes and the architecturalcommittee's duties.

MR. NAPOLES: I'll join.MR. KENDRICK: You can answer it.THE WITNESS: Could you repeat that, please?MR. ETTINGHOFF: Well, let's have the court

reporter read the question back.(Record read).THE WITNESS: Yes.

BY MR. ETTINGHOFF: Q When has the association enforced that

provision?A All the time. We keep our trees trimmed.Q Okay. When you say, "We keep our trees

trimmed", are you talking about you and your husband

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personally on your lot or what?A We have 20 homes, very small community, and

everybody abides by the CC&R's and keeps their treesbelow their ridgeline.

Q Okay. Your testimony is that all thehomeowners in Harbor Pointe-Newport maintain their treeson their lots --

A Yes.Q -- below the ridgeline of -- A Yes.Q -- their houses?A Yes.Q Even now?A Yes. Palms are not trees. Palms are

different.Q Oh, when you say "trees" then, you're not

including palms?A No. It's a different species.Q Okay. Let me see if I can rephrase the

question then about palm trees then.To the best of your recollection, while you've

served on the board at --A Right.Q -- Harbor Pointe-Newport, has the association

ever required anybody to maintain the palm trees on

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their property to a height not to exceed the ridgelineof their house?

MR. KENDRICK: I'm going to object that a palmisn't necessarily a tree --

MR. ETTINGHOFF: Well -- MR. KENDRICK: -- but with that proviso, you

can go ahead and answer it.BY MR. ETTINGHOFF:

Q Do you understand the question?A Everybody maintains the trees, the palms.Q Okay. I'm trying to find out, though -- do you

understand that before this lawsuit was filed, there wasa provision in your CC&R's regarding the height oftrees?

A Yes.Q Are you familiar with that?A Yes.Q Okay. And what I'm trying to find out from you

is whether or not the association has ever enforced thatprovision with regard to palm trees.

MR. KENDRICK: Same objection.BY MR. ETTINGHOFF:

Q Okay. Do you understand the question?A Seems like a trick.Q I'm not trying to --

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A I don't want --Q I'm not trying to trick you. I'm just trying

to find out whether or not the association has ever toldanybody by sending them a letter or asked them in Harbor Pointe to keep their palms trimmed to a heightnot to exceed the height of their roof.

A Now, when you added that last part, that'swhen -- not to exceed the roofline, we ask people tokeep them trimmed, and they're all very manicured and ingood shape, but when you add that last part --

Q The last part about not to exceed the -- A Above the ridgeline, yeah.Q Oh, so if I understand your response then,

you're saying that to your knowledge, people generallykeep their palms trimmed --

A Yes.Q -- but not necessarily to a height that doesn't

exceed the top of their house; is that what you'resaying?

A Correct.Q Okay. So just to be clear then, you're not

aware of any prior occasion when the association hasdemanded that somebody trim their palms on theirproperty to a height which does not exceed the height oftheir roof; is that right?

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A That's correct.(Exhibit 2 was marked for identification

by the Certified Shorthand Reporter, a copy ofwhich is attached hereto.)

BY MR. ETTINGHOFF: Q All right. I'm going to ask you to look at

what we'll mark as Exhibit number 2. This is copy ofthe "Harbor Pointe-Newport Owners Association Rules &Regulations And Architectural Guidelines Amended andAdopted by the Board of Directors" on May 11, 2005.

For the record, I will represent that this wasattached to your Declaration filed in connection withthe Motion for Summary Judgment, and anyways, I'd likeyou to look at that and see if you recognize it.

A Yes, I'm familiar with this.Q Were you on the board when these "Rules &

Regulations" were adopted?A Yes.Q To your knowledge, have these "Rules &

Regulations" ever been amended since the date these wereadopted?

A Amended? I don't know. Are you --Q What I'm trying to find out is whether or not

these are still the current "Rules & Regulations AndArchitectural Guidelines" of the association.

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MR. KENDRICK: I'm going to object to thequestion about being amended as calling for a legalconclusion. You know, to the extent that something inthose might have been superceded by the amendment to theCC&R's themselves could be vague and ambiguous in thatregard, but you can answer the question.BY MR. ETTINGHOFF:

Q Do you ever recall any amendments to the "Rules& Regulations" or the "Architectural Guidelines" sinceyou've been on the board?

A Amendments, yes.Q When?

MR. KENDRICK: He's asking about these,(indicating).

THE WITNESS: On this? Oh. No, this -- BY MR. ETTINGHOFF:

Q All right. A No. Q To your knowledge then, these "Rules &

Regulations And Architectural Guidelines" that we'vemarked as Exhibit 2 are still in effect then now?

A To the best of my knowledge.Q Did you attend any of the meetings in the year

2013 of the board when Mr. Rezai's view dispute wasbeing discussed?

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A What part of 2013, though?MR. NAPOLES: Objection, vague and the only

reason I say that is she was a member for part of thattime frame --

THE WITNESS: Yes.MR. NAPOLES: -- and on the board for part of

that time. In the term "meeting", are we talkinggeneral meetings, executive session is the split?Thanks so much.

THE WITNESS: It overlaps.BY MR. ETTINGHOFF:

Q All right. Well, let's see. You've told uspreviously that you were not on the board fromSeptember 2012 through September 2013, correct? Thatwas the year that you were off the board?

A To the best of my knowledge.Q So for the year 2013 then, you were off the

board from January through September, correct?A To the best of my knowledge, yes.Q Let me rephrase my question then.

From that time period, from January of 2013till September of 2013, did you attend any of themeetings, any board meetings at Harbor Pointe whenMr. Rezai's view complaint was being discussed?

A No.

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Q All right. What about, there was a meetingthat occurred in June of 2013 concerning Mr. Rezai'sview complaint. Did you attend that meeting?

A I don't remember.(Exhibit 3 was marked for identification


BY MR. ETTINGHOFF: Q All right. I'm going to now show you what

we'll mark as Exhibit number 3.(Document handed to counsel).MR. NAPOLES: Thank you.

BY MR. ETTINGHOFF: Q This is a copy of the minutes of a board of

director meeting which occurred on June 4th, 2013. Thiswas produced by the association as part of the discoveryand these minutes show that you and your husband werepresent at that meeting; do you recall that?

A I guess we were. I don't recall the meeting.Q On Page 2 of these minutes, it shows that the

homeowners from number 1 and number 8 Harbor Pointe werepresent for hearings to discuss the tree trimmingrequested by the board of directors.

MR. KENDRICK: Is there a question there?BY MR. ETTINGHOFF:

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Q Yeah, I'm just asking you to read this sectionof the minutes to see if that refreshes yourrecollection about that meeting.

A It does not.Q All right. And then further on in these

minutes then, there's a copy of the executive sessionminutes for on the same date.

A I was not on the board at this time.Q All right.A So I would not be in executive session.Q All right. So you did not ascend the executive

session --A No.Q -- on June 4th?A No.Q All right. Other than what's in the minutes of

that executive session meeting, do you have any personalknowledge about what occurred in that executive session?

A No. MR. KENDRICK: I'm also going to object that

she actually testified that she was not present at theexecutive session so she wouldn't, other than impliessomehow that she might have had knowledge of executivesession and that misstates her testimony.

(Exhibit 4 was marked for identification

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(MORRIS)


BY MR. ETTINGHOFF: Q Okay. Now, I'm going to ask you to look at

what we'll mark as Exhibit number 4.Do you recognize this document?

A Yes.Q And on the last page, page 4, is that your

signature of Exhibit number 4?A Yes.Q And did you read the contents of this

Declaration before you signed it?A Yes.Q All right. Let's see. I'm going to ask you to

look at paragraph "14." of your Declaration. It's onPage 2.

I'll read it into the record. It says,"Following complaints by Plaintiff in 2012 that his viewwas being obstructed, the Board instructed themanagement company to notify homeowners requestingtrimming, which was performed."; you see that?

A I see it.Q And is that something that you know of your own

personal knowledge?A To the best of my knowledge, I was not on the

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(MORRIS)

board, but could have been part of that year; I don'tknow. This is true. I signed it.

Q Well, I'm trying to find out what informationyou had to base that statement on.

You said that you were not on the board whenthis occurred, right?

MR. KENDRICK: No, I believe she testified,Counsel, that she was not on the board for part of 2012.BY MR. ETTINGHOFF:

Q Well, were you on the board when the boardinstructed the management company to notify homeownersrequesting trimming?

A I don't remember.Q Were you on the board at any time when the

homeowners did the trimming that you're referring to inparagraph "14."?

A I signed this Declaration and whatever I saidis true.

Q I know you signed it, but I'm trying to findout the basis for your statements in this Declaration.

A Well -- Q Do you -- A Well, board decisions are binding, so I'm sure

this is true.Q But I'm trying to find out where you got this

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(MORRIS)

information from.Is this something that you found from the

minutes that you reviewed or did somebody tell you this?How do you know this if you were not on the board whenthis occurred?

A I don't recall.Q You state in paragraph "14." that, "... the

Board instructed the management company to notifyhomeowners requesting trimming, which was performed."

A Hm-hmmn.Q All right. Now, when you say "which was

performed", you're referring to the trimming or the factthat the letters went out?

A Both.Q Okay. And you have personal knowledge of this

trimming that was done?A To the best of my recollection, yes.Q All right. So did you observe trimming being

done by either Michael Crossley, the Hickingbothams orMr. Khademi?

MR. NAPOLES: I'm going to object. It'scompound and vague. I think you need to break it out byeach individual.

MR. ETTINGHOFF: Okay.BY MR. ETTINGHOFF:

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Q Well, did you observe any of these threeindividuals doing trimming after these letters went out?

MR. NAPOLES: Objection, assumes facts not inevidence as to whether or not all of the individuals youjust named received those letters in the first place.

MR. ETTINGHOFF: Well, she testified that shebelieves the letters went out. I believe that's whatshe --

MR. KENDRICK: But you never defined as to who.You just automatically assumed that it was Hans, theHickingbothams and Mr. Crossley.BY MR. ETTINGHOFF:

Q Well, I'm just trying to find out whether youobserved any of the homeowners doing trimming after.

A Homeowners do trimming all the time -- Q But I'm -- A -- including us.Q I'm talking about the trimming that was

requested that you're referring to in paragraph "14." ofyour Declaration.

A Yes. Okay.Q Okay. My question is: Did you observe any of

the homeowners doing any trimming after in response tothese letters that your paragraph "14." is referring to?

MR. NAPOLES: Same objection.

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(MORRIS)

THE WITNESS: Well, this doesn't say I observedit.BY MR. ETTINGHOFF:

Q My question to you is: Did you observe it?A No.Q Okay. So is the information that you have in

paragraph "14." then based on hearsay then, just what --A No.Q -- other people have told you?A No.Q What is it based on?

MR. KENDRICK: Counsel, you know -- I mean, itsays on its face that she reviewed the records of theassociation in preparing the Declaration and --

MR. ETTINGHOFF: You know as well as I do, Ihave the absolute right to ask her whether she haspersonal knowledge of this. If she doesn't havepersonal knowledge on it and it's based on hearsy, it'sinadmissible.

MR. KENDRICK: She testified that she has norecollection as she sits here today.BY MR. ETTINGHOFF:

Q Okay. So just to be clear that the record isclear, paragraph "14.", you did not personally observeany of the events that are described in paragraph "14.",

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(MORRIS)

correct?MR. KENDRICK: As you sit here today, based on

your recollection as you sit here today.THE WITNESS: As I sit here today.MR. KENDRICK: That's the only basis you have

as you sit here to testify.BY MR. ETTINGHOFF:

Q Okay. Let's move on to paragraph "15." then.I'll read it into the record. It says, "This wasfollowed by management company inspections and requestsfor further trimming, all of which was accomplished.";you see that?

A Yes.Q Do you have any personal knowledge of the facts

stated in that sentence?MR. KENDRICK: To the best of your recollection

as you sit here today.THE WITNESS: Yes. To the best of my

recollection as I sit here today, yes.BY MR. ETTINGHOFF:

Q You have personal knowledge of it?A To the best of my recollection as I sit here

today.Q Okay. My question is: Did you personally

observe any of this management company inspections or

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(MORRIS)

requests for further trimming or the accomplishment ofthat trimming?

A To the best of my recollection as I sit heretoday, it's true.

Q I'm not asking you whether it's true. I'masking you whether you personally observed it.

A Yes.Q Okay. You were not on the board at that time,

correct?A I don't remember.Q All right. Well, you were not on the board

between September 2012 and September 2013, correct?A Correct.Q Do you know what time frame paragraph "15."

refers to?A No.Q Isn't it true, ma'am, that paragraph "15." is

based on what other people have told you and you don'thave any personal knowledge of it?

MR. KENDRICK: I'm going to object to theextent that would call for disclosure of attorney-clientprivileged material. I'll instruct her not to answer asto anything I may have said to her.BY MR. ETTINGHOFF:

Q Okay. That's fine. You can follow your

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(MORRIS)

counsel's instruction regarding that, but I'm stillentitled to an answer to the question.

MR. KENDRICK: I'm sorry. Where are we at,number "15."?

MR. ETTINGHOFF: Number "15.".BY MR. ETTINGHOFF:

Q I'm just asking you whether you have anypersonal knowledge of any of this in paragraph "15."

A Yes.Q Okay. And what personal knowledge do you have?

Do you have --A I was asked by Danni Sun to continue to do

landscape inspections.Q When?A When -- when Rezai and Hickingbotham and Danni

were on the board. So she asked me if I would continueto just walk around.

Q You mean when you got back on the board inSeptember of 2013; is that what you're talking about?

MR. KENDRICK: No, I think that misstates hertestimony.BY MR. ETTINGHOFF:

Q Have you ever seen the letters that went out bythe board to any of the homeowners asking them to dofurther trimming on their trees?

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(MORRIS)

A I don't recall.Q Were you ever asked by the board to take a look

at any of the trimming that was done either byMichael Crossley, Hans Khademi or the Hickingbothams oftheir palm trees?

MR. KENDRICK: Well, I'm going to object tothat, first of all, by the use of the term "palm trees".I'm going to object also again as it's compound asMr. Napoles has pointed out and with respect to each ofthose persons, and I'm also going to object that I thinkit misstates her testimony in that she just testified asecond ago that she was asked by -- by I believe Ms. --

THE WITNESS: Danni.MR. KENDRICK: -- Danni Sun to inspect on

behalf of the board. So with that objection, you can go ahead and

answer the question, if you want.MR. NAPOLES: Further assumes facts not in

evidence.BY MR. ETTINGHOFF:

Q I'm not even sure if I recall the question now.Let me repeat it.

A Please.Q Have you ever been asked while you were either

on the board or while you were not on the board to

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(MORRIS)

inspect any trimming of any kind of trees, includingpalm trees, by Michael Crossley, Hans Khademi or theHickingbothams?

MR. KENDRICK: I'm going to object. Was sheasked by those people or was she asked by someone else?The question is vague and ambiguous.BY MR. ETTINGHOFF:

Q Were you asked by anybody to do that?MR. KENDRICK: I'm also going to object that I

think she just testified that she was asked by Danni Sunto perform that exact task.BY MR. ETTINGHOFF:

Q Okay. What did Danni Sun ask you to do?A She asked me to do the property -- I've done

these property walks once a month for a bazillion yearsand she didn't want to do it, so --

Q Okay. Let's develop that a little bit. You'resaying you do property walks as a board member then?

A That this was a voluntary, the --Q Okay. I'm trying to find out what your

testimony is. You said that you've done --A The year that -- that Danni and Frank were on

the board, she asked me to continue to do the propertywalks, yes.

Q What are the "property walks"?

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(MORRIS)

A You walk around the whole property and youobserve if there's dead shrubs or flowers on the HOApremises.

Q Okay. On the property walks then, you'relooking at common area only?

A Hm-hmmn, right.Q Okay. So you're looking to see if there's any

maintenance needed on the common area?A Vegetation, yes.Q And if there is, then you tell the landscaper

to -- A Sure.Q -- fix it?A Yes.Q Okay. And how often do these property walks

take place?A Once a month.Q And does the property manager go with you on

those walks?A Yes.Q Now, during those walks that occur once a

month, are you also inspecting the vegetation on theindividual lots that are owned by the homeowners?

A No.Q All right. So these walks are mainly to

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(MORRIS)

inspect the common areas to determine whether anymaintenance is required?

A Exactly.Q Who prepared this Declaration that we've

identified as Exhibit number 4?MR. KENDRICK: I'm going to object, that that

calls for attorney-client privileged communications, butthe fact is I'm the one who assisted Ms. Morris. Weworked together in preparing this.BY MR. ETTINGHOFF:

Q Did you have any input in the preparation ofthis document, ma'am?

A I signed it.Q I'm asking you whether you had any input in the

preparation of it.MR. KENDRICK: I'm going to say that calls for

an attorney-client communication and object and instructher not to answer.BY MR. ETTINGHOFF:

Q Okay. I'm going to ask you to look atparagraph "16." of your Declaration where it says, "TheAssociation also hired its own tree surgeon to trimlandscaping on the common areas."

Do you see that statement?A Yes.

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(MORRIS)

Q And can you explain to me what you mean bythat?

A Yes. We have professional people who trim thepalms and the trees --

Q All right. And --A -- once a year.Q Okay. Do you know the time frame every year

when that's usually done?A No. It's different.Q Each year it's different?A (No audible response).

THE REPORTER: Is that a "yes"?THE WITNESS: Yes.

BY MR. ETTINGHOFF: Q Okay. Let's look at paragraph "17.". It

states, "Notwithstanding, Mr. Rezai complained thatcertain tall palms continued to obstruct his view." Allright.

Where do you get that information from?MR. KENDRICK: I'm just going to object that

the Declaration states at its outset that she'sinspected the records of the association and these arekept in the ordinary course of business, and with thatobjection, you can go ahead and answer, if you know.BY MR. ETTINGHOFF:

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(MORRIS)

Q Do you know what time frame that sentencerefers to in paragraph "17."?

MR. KENDRICK: I don't think it states any timeframe, Counsel. It just states on its face that hecomplained.

MR. ETTINGHOFF: I know. That's what I'mtrying to find out is what the time frame is.BY MR. ETTINGHOFF:

Q If you don't know what the time frame is,then --

A I don't know.Q Let's go to paragraph "18." of your

Declaration. I'll read it into the record, "The ARCinvestigated and then-Board and Arc members Danni Sunand Frank Hickingbotham issued a binding decision thatthere was no unreasonable obstruction of Mr. Rezai'sview."

MR. KENDRICK: Is there a question there?MR. ETTINGHOFF: There's going to be a question

now.BY MR. ETTINGHOFF:

Q First of all, what is the basis for thisstatement by you? Did you personally observe any of thefacts in this sentence?

A Well --

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(MORRIS)

Q Pardon me?MR. KENDRICK: Recognizing, of course, Counsel,

that she can only testify as to what she recalls sittinghere today and that the Declaration on its face is whatthe foundation of these statements are.

MR. ETTINGHOFF: Well, you're basing a Motionfor Summary Judgment on these statements; therefore, Ihave the right to cross-examine her about it and that'swhat I'm doing. I want to know --

MR. KENDRICK: Certainly, but again, as Istated, all she can testify as she sits here today iswhat she recalls sitting here today.

MR. ETTINGHOFF: Well, if she can't recall whatthe basis for this is in this deposition, then --

THE WITNESS: We're in a litigation; I mean,the lawsuit.BY MR. ETTINGHOFF:

Q I know we're in a lawsuit and that's why I'mentitled to know what the basis for this statement is inparagraph "18.". I don't believe that there is anybasis for it.

Are you aware of any documents that you've everseen showing that Danni Sun or Frank Hickingbothamissued a binding decision that there was no unreasonableobstruction of Mr. Rezai's view? Have you ever seen any

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(MORRIS)

documents that show that?MR. KENDRICK: If you recall.THE WITNESS: No.

BY MR. ETTINGHOFF: Q Did somebody tell you that?A Yes.Q Who?A It's common knowledge in the community.Q I'm asking you who told that to you then. What

your statement is in paragraph "18.", is that basedsolely on what people have told you?

A Yes.Q Okay. So it's based entirely on hearsay,

correct?A No.Q Well, if it's not based on hearsay then, what's

it based on?MR. KENDRICK: I'm going to object, that that

calls for a legal conclusion.MR. ETTINGHOFF: I'm entitled to know the basis

for her Declaration, Counsel.MR. KENDRICK: As based as to what she recalls

here today. All she can testify to is what she recallssitting here today. The Declaration on its face stateswhat the foundation for the statements contained in

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(MORRIS)

there are and as of the date it was signed.BY MR. ETTINGHOFF:

Q All right. Ms. Morris, isn't it true that youdidn't write paragraph "18." and you don't have anypersonal knowledge of the facts stated in paragraph"18." and the information contained there is basedentirely on hearsay?

MR. KENDRICK: I'm going to object to that ascalling for attorney-client communications which areprivileged. I'm going to instruct her not to answer asto anything I may have said to her, and I'm also goingto object again that the Declaration says on its facewhat the foundation for the statements in there are andall she can testify to here sitting here today is whatshe recalls as she sits here today.

If she testifies that she has no recollectionof it as she sits here today, then that is what shewould testify to, but I don't think you can harass herand sit here and keep drilling her about whether shehas -- whether there's a factual basis for this when theDeclaration says on its face what the factual basis isfor it.BY MR. ETTINGHOFF:

Q Okay. Your counsel has placed his objection onthe record and now I'm entitled to an answer. What's

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(MORRIS)

the answer?A I'm going on his advice of my counsel not to

answer it.Q He didn't instruct you not to answer it.A Yes, he did.

MR. KENDRICK: I only instructed you not toanswer as to anything I may have told you; however,otherwise, to the extent sitting here today, if you canrecall anything about what's stated in paragraph "18.",then you should answer Mr. Ettinghoff's question, if yourecall.

THE WITNESS: I don't want to --MR. KENDRICK: Answer his question, please.THE WITNESS: Well, I signed this document that

everything in here is true, so that's it.BY MR. ETTINGHOFF:

Q I know you signed the document, ma'am. I'mtrying to find out where the information came from; Imean, this document was provided to you by your attorneyI assumed --

A Uh-huh.Q -- and you read it and you signed it, correct?A Yes.Q Okay. You didn't write paragraph "18.", did

you?

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(MORRIS)

MR. KENDRICK: I'm going to object to thiswhole line of questioning. You're just -- you're justharassing the witness. The Declaration says what itsays. If she sits here today and she can't remember,that's -- that's the problem is the Declaration in andof itself --

MR. ETTINGHOFF: Okay. Counsel, I'm -- MR. KENDRICK: -- states what the foundations

are.MR. ETTINGHOFF: -- I'm getting tired of this

and we're going to be here all day long, because you'retrying to base a Motion for Summary Judgment based onparagraph "18." and, therefore, I'm entitled to knowwhether or not she has any personal knowledge of thefacts stated in that paragraph.

If she has no personal knowledge of the factsstated in paragraph "18.", I want to know right now andthen, because if she has no personal knowledge of it,that paragraph is inadmissible and you know it, Counsel,and I also think that this is, you know, frankly -- youknow, you filed a whole Motion for Summary Judgmentbased upon a Declaration which obviously you preparedwhich this witness had no input into preparing.

She has no personal knowledge of the factsstated in this Declaration and, you know, unless she can

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(MORRIS)

show that she has personal knowledge of it, I'm going toobject to every single sentence in this Declaration thatshe obviously doesn't have personal knowledge of and,therefore, your Motion for Summary Judgment is going tobe denied.

MR. KENDRICK: Are you finished? All I'msaying, for the record, is that all she can testify asshe sits here today is whether she recalls it or not.

You're asking her to state definitively whethershe has personal knowledge based on a Declaration thatshe went through and signed months ago and all of asudden, you're demanding that -- you're harassing herand demanding that she state personal knowledge, whenall she is able to testify to and all she's required totestify to under the Code is what she recalls presently,okay? So if you want to attack the Declaration, that'sfine; however --

MR. ETTINGHOFF: I'm going to attack theDeclaration.

MR. KENDRICK: That's fine.MR. ETTINGHOFF: Okay.MR. KENDRICK: However, on its face, it states

there's a foundation for this. She's testified thatwhat's contained in here is true --

MR. ETTINGHOFF: She's already admitted --

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(MORRIS)

MR. KENDRICK: -- as of the time she signed it.MR. ETTINGHOFF: Counsel, she's already

admitted she wasn't even on the board during the timeperiod when these events were occurring, okay, and --

MR. KENDRICK: That's fine.MR. ETTINGHOFF: -- and I'm entitled to know

whether she has personal knowledge of these facts orwhether they're just based on hearsay.

MR. KENDRICK: Okay.BY MR. ETTINGHOFF:

Q So I'm going to ask the question again, ma'am:Paragraph "18.", do you have any personal knowledge ofthe facts that are stated in your paragraph "18." ofyour Declaration which we've identified as Exhibitnumber 4 or is the information contained in thatsentence based upon entirely what people have told you?

A I'm not going to answer on the advice of mycounsel.

MR. ETTINGHOFF: Counsel, you might -- MR. KENDRICK: You have to answer to the extent

that it doesn't involve something I said to you. Youonly have to answer to the extent that you have arecollection sitting here today.

THE WITNESS: This whole thing is --MR. ETTINGHOFF: Do you want to take a break --

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(MORRIS)

THE WITNESS: Yes, yes.MR. ETTINGHOFF: -- Counsel? Okay. Let's take a -- go off the record.MR. KENDRICK: Sure.MR. ETTINGHOFF: Okay. Is it stipulated we're

off the record now?MR. KENDRICK: Yes. MR. ETTINGHOFF: Okay.(Discussion off the record.)(Recess from 11:20 a.m. to 11:25 a.m.).MR. ETTINGHOFF: Okay. I think before we went

on -- let's go back on the record. Ready?Is that stipulated, Counsel, we're back on the

record?MR. KENDRICK: Yes.MR. ETTINGHOFF: All right. Before we went on

a break, there was a question pending and I'd like thecourt reporter to read it back, please.

(Record read).BY MR. ETTINGHOFF:

Q All right. So, ma'am, I'm going to ask youagain to answer that question now.

A I don't remember.Q That's your answer?A Yes.

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(MORRIS)

Q And just to be clear, you're not aware of anydocuments such as minutes or letters or correspondenceor any other documents which show that Danni Sun andFrank Hickingbotham issued a binding decision that therewas no unreasonable obstruction of Mr. Rezai's view?

A I'm not aware of those.Q Not aware?A Did not see them.Q You've not seen any documents that show that,

correct?A No.Q Let's go to paragraph "20." in your

Declaration. I'll read it into the record, "When theARC's binding determination that his view was notunreasonably obstructed did not satisfactory Mr. Rezai,the successor ARC, which by then included the Mr. Rezai,myself and Mr. Crossley, undertook to grant variances tothe individual homeowners.", all right?

A True.Q Okay. You have personal knowledge of this in

paragraph "20."?A Yes.Q And the reason why you have personal knowledge

is because you were on the board when this occurred?A Yes.

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Q And just to go back to paragraph "18.", isn'tit true that you were not on the board when the factsthat are described in paragraph "18." took place?

A Correct.Q Why did you as a board member or a member of

the ARC decide to grant variances to the individualhomeowners?

MR. KENDRICK: I'm going to object to theextent that calls for a disclosure of anything thatmight have occurred in executive sessions of the board.

MR. ETTINGHOFF: I don't care if it occurred inexecutive session. I'm still entitled to know theanswer to it.

MR. KENDRICK: You can go ahead and answer, ifyou know.

THE WITNESS: Because they asked for them.BY MR. ETTINGHOFF:

Q And we're speaking about Michael Crossley andHans Khademi and the Hickingbothams; is that --

A Yes.Q So they asked for a variance for their palm

trees?A Yes.Q All right. And you decided that you should

give them a variance?

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(MORRIS)

A Yes.Q And why did you decide that they should get a

variance for their palms?MR. NAPOLES: Point of clarification,

Counselor, are you asking her individually orcollectively for the board or what? I guess I'll objectthat it's vague as to what -- are you seeking herpersonal knowledge and personal motives or the entireboard of directors?

MR. ETTINGHOFF: Well, let's go into both.BY MR. ETTINGHOFF:

Q I mean, did you have a discussion with theother board members or the architectural committeemembers about these palms that were existing on theCrossley, Khademi and Hickingbotham properties?

MR. KENDRICK: I'm going to object to theextent that calls for a disclosure of something that mayhave occurred in executive sessions of the board.

MR. ETTINGHOFF: Counsel, you know as well as Ido that just because something happens in executivesession doesn't mean that it's not admissible.

MR. KENDRICK: I'm making my objection for therecord, Counsel.

MR. ETTINGHOFF: Okay. BY MR. ETTINGHOFF:

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(MORRIS)

Q Did you understand my question?A Ask it again, please.Q Did you discuss with any other board members or

architectural committee members the issue about grantingvariances to these homeowners for the palms on theirproperty?

MR. KENDRICK: The objection stands. Answer it, if you can.THE WITNESS: Yes.

BY MR. ETTINGHOFF: Q And did you decide as a board member yourself

or an architectural committee member that you shouldgrant variances to them for the palm trees?

A Yes.Q What is the reason why you felt that they

should be entitled to a variance for the palms?MR. KENDRICK: I'm going to object to the

extent that calls for some kind of disclosure ofsomething that's privileged by the executive privilegeof the board of directors.

MR. ETTINGHOFF: There's no executive privilegeof the board of directors. BY MR. ETTINGHOFF:

Q I'm asking you why you personally wanted togrant a variance to Mr. Crossley, Khademi and the

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(MORRIS)

Hickingbothams for their palms.A To protect their trees.Q Okay. So you felt that the palms needed

protection then?A Uh-huh.Q "Yes"?A Yes.Q Okay. And did you know at the time when you

granted these variances for the palms, that the CC&R'srequired trees to be maintained no higher than theheight of their roofs?

A Palms are not trees.Q So it's your position then, that the CC&R's

have never prohibited palms from being higher than therooflines; is that what your position is?

A Ask the question again, please.Q Is it your position then, that the CC&R's have

never prohibited palms from exceeding the heights of theroofs?

A Yes.Q Is that the reason why you granted a variance

for the palms, because you didn't feel that a palm is atree?

A Yes.Q All right. So you believe, your personal

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belief then is, is that the people who are homeowners inHarbor Pointe should be allowed to grow palms as high asthey want then?

A Yes.Q What if a palm tree blocks somebody's view of

the ocean, do you still feel that they should be able togrow it as high as they want?

MR. KENDRICK: I'm going to object that callsfor speculation, incomplete hypothetical.

Answer it, if you know how.THE WITNESS: Yes, yes.

BY MR. ETTINGHOFF: Q So it's your opinion then, that even if a palm

blocked somebody's view of the ocean, they should beable to grow it as high as they want?

A Yes.Q So as far as you're concerned as a board member

and the architectural committee member, homeowners arenot required to trim palms even if they block somebody'sview?

A According to your definition of trimming.Q I'm just asking you the question. Is that

your --A Every --

MR. KENDRICK: Counsel, I'm also going to

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object that you're not putting any time frame on yourquestion here, because as of today there is an amendmentin effect that has not been invalidated by a court inthe CC&R's that says that palms are exempt from anyheight limitation.

So to the extent your question calls for whatshe thinks here today, I'm going to object that thequestion misstates the requirements of the CC&R's.

Now, if you want to ask her a question aboutwhat she thought before the amendment to the CC&R's tookeffect, I can see that question, but as of today thereis no requirement in the CC&R's that palms be subject toany ridgeline height requirement.

MR. ETTINGHOFF: Well, that wasn't my question.My question was whether or not she feels -- well, let'sbreak it down into the time frame.BY MR. ETTINGHOFF:

Q Before the CC&R's were purportedly amended, didyou feel that homeowners had the right to grow palms ashigh as they wanted even though they blocked people'sviews?

A Yes.Q And why is that?A 'Cause it's their property; I mean --Q So you don't think the CC&R's protect the views

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at Harbor Pointe then?A Yes.Q How do you believe the CC&R's protect people's

views?A Required to trim the trees below the ridgeline

of the homes and the shrubs.Q But according to your opinion, a palm is not a

tree, right?A Correct.Q Okay. So you believe that views are protected

from obstruction by trees, but they're not protected byan obstruction caused by palms; is that your testimony?

MR. KENDRICK: Counsel, I'm going to objectthat you're misstating what it says in the CC&R's andgoverning documents which state that --

MR. ETTINGHOFF: I'm not misstating anything. MR. KENDRICK: -- which state that there can

be -- MR. ETTINGHOFF: I'm just trying to find out

what her opinion is.MR. KENDRICK: -- which state that there can be

no unreasonable blocking of a view.When you make a question to her and it says

unqualifiably that no view can be blocked, I believethat misstates the governing standard under the

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governing documents. MR. ETTINGHOFF: Well, let me have the court

reporter -- MR. MORRIS: Answer it.MR. ETTINGHOFF: -- read back my -- MR. KENDRICK: Shhh. MR. MORRIS: Okay.MR. ETTINGHOFF: -- question -- MR. KENDRICK: Please.MR. ETTINGHOFF: -- and then we'll talk about

the reasonable standard next then.Would you, please, read back the pending

question.(Record read).THE WITNESS: Yes.

BY MR. ETTINGHOFF: Q All right. Let's talk about the language in

the CC&R's that talks about unreasonable obstruction ofviews then. Are you familiar with that --

A Yes.Q -- paragraph?

Based on your interpretation of the CC&R's Iguess now existing as they are after they've beenpurportedly amended then, is it your belief, ma'am, thatpalm trees may exceed the height of a roofline even if

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they unreasonably block the view of another homeowner?A Is that a question?Q Yes. Do you understand the question?A It's very frustrating. No. Say it again,

please. Repeat it.MR. ETTINGHOFF: I'll have her reread it back

to you.(Record read).THE WITNESS: Yes.

BY MR. ETTINGHOFF: Q Why do you believe that people should be

allowed to maintain palms on their property thatunreasonably block the view of other homeowners?

A Can you ask the question again?Q Why do you believe that people in Harbor Pointe

should be allowed to maintain palms on their propertythat unreasonably obstruct the view of other homeowners?

A Why do I believe? Because they were planted bythe developer.

Q Any other reason?A They're beautiful. With no palms, we would

look -- our property values would be gone.Q Okay. So there's two reasons why you believe

that the palms are okay even if they unreasonably blocksomebody's view: One of them is that they were planted

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by the developer; the other one --A Uh-huh. Q -- is that you believe they're beautiful,

right?A Yes.Q Let's go to the first reason about the palms

being planted by the developer.What information do you have about what palm

trees were planted by the developer?A There are pictures that show the palms.Q That are planted by the developer?A Hm-hmmn.Q Have you seen them?A Hm-hmmn.Q "Yes"?


BY MR. ETTINGHOFF: Q Are there any pictures showing that the

developer planted palms on Michael Crossley's property?A I don't know.Q Are there any pictures that you've seen showing

that the developer planted palms on the Hickingbothamproperty?

A I don't know. I don't know about that.

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Q Are these pictures that Michael Crossley showedyou?

A Yes.Q Okay. Now, in your paragraph "20." of your

Declaration, you indicate that the successor ARC whichincluded yourself, Mr. Rezai and Mr. Crossley undertookto grant variances to the individual homeowners.

Now, it was your decision to grant Mr. Crossleya variance for his palms, correct?

A Correct.Q And can you tell me who voted for that variance

to be granted to Mr. Crossley, other than you?A I don't remember.Q Well, did Mr. Rezai vote in favor of granting a

variance to Mr. Crossley for his palms?A I don't remember.Q Did Mr. Crossley vote on that issue with regard

to the granting of a variance to himself?A I don't remember.

(Exhibit 5 was marked for identificationby the Certified Shorthand Reporter, a copy ofwhich is attached hereto.)

BY MR. ETTINGHOFF: Q All right. Let's mark -- we'll mark this next

exhibit as number -- I think we're on 5.

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I'm going to ask you to take a look at whatwe've marked as Exhibit number 5. This is an AgreementFor Landscape Variance which was recorded with theOrange County Recorder on December 11, 2013.

Do you recognize this document?A Yes.Q Can you tell me who prepared it?A No.Q Is that your signature on page 3 of this

document?A Yes.Q Did any other person on the board or the

architectural committee approve this variance forMr. Crossley, other than you?

MR. KENDRICK: I'm going to object to theextent that calls for disclosure of something that mayhave occurred in executive session of the board.

MR. ETTINGHOFF: Counsel --MR. KENDRICK: I'm just objecting --MR. ETTINGHOFF: -- stop making -- MR. KENDRICK: -- for the record. MR. ETTINGHOFF: -- stop making frivolous

objections. You know that she -- that's not a properobjection what happened in executive session.

MR. KENDRICK: I can make any objection I want.

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She -- I'm not instructing her not to answer, Counsel.I'm making a record. Don't harass me in making myrecord.BY MR. ETTINGHOFF:

Q Okay. You're required to answer the question,ma'am.

Do you remember the question?A No.Q Did any other person, other than you, that was

on the board or the architectural committee approve thisvariance that was granted to Michael Crossley?

A No.Q When you approved this variance that was

granted to Michael Crossley for the palms on hisproperty in December of 2013, were you aware that thepalms that are on his property were not planted by thedeveloper?

A I -- I don't know. I don't recall.Q Has anybody ever told you that the palms on

Michael Crossley's property were planted by thedeveloper?

A No.Q Well, your previous testimony was that you had

two reasons why you thought it was appropriate to grantthese variances: One was that the palms were planted by

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the developer and the other reason was that they'rebeautiful, right?

A Hm-hmmn.Q That's a "yes"?A Yes.Q You don't have any information available to you

that shows that the palms on Michael Crossley's propertywere planted by the developer, do you?

A I don't remember.Q Have you ever seen anything that proves that

the palms on Michael Crossley's property were planted bythe developer?

A Michael has pictures, but I don't recall.Q You don't recall if they show that his palm

trees were planted by the developer?A No.Q Okay. Then is it accurate to say then, that

the only reason that you granted the variance toMichael Crossley is that you think his palm trees arebeautiful?

A I think they're beautiful, yes.Q Did you ever go to Mr. Rezai's property before

you granted this variance in December of 2013 to seewhether or to what extent Michael Crossley's palms wereblocking Mr. Rezai's view?

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A No.Q So you don't have any opinion about whether or

not Mr. Rezai's view is being unreasonably obstructed byMr. Crossley's palms?

MR. KENDRICK: Counsel, I'm going to object,that that might misstate the testimony. She previouslytestified that she had been to his property at somepoint in the past to look at his view and I'm not sureof exactly what the time frame she testified as to, butI don't know if it's clear whether it was before thegranting of the variances or after the granting of thevariances. So I think the question needs to beclarified.BY MR. ETTINGHOFF:

Q Well, when you granted this variance, yousigned this variance on December 10th, 2013, accordingto --

A Correct.Q At that time, in December of 2013, did you have

any opinion about whether or not the palms on Mr. Crossley's property unreasonably blocked the viewfrom Mr. Rezai's property?

A No.Q I'd like you to look at page 2 of this Variance

that we've marked as Exhibit number 5 and I'm going to

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ask you to read this page here where -- especially thefourth paragraph where it talks about this meeting ofthe board on December 3rd, 2013, where it talks about arequest by these owners for an architectural varianceand also for a determination that the existing palms donot unreasonably obstruct other owners' views.

Do you see that language in there?A Yes.Q And do you see the sentence where it says,

"Owners request was approved by the majority of theBoard."?

A Yes.Q Okay. You were the only one that approved this

request, right, for Mr. Crossley?A Yes.Q Okay. So when you say "majority of the Board",

do you mean just yourself?A Yes.Q Do you think that one person out of -- how many

people were on the board at this time?A Three.Q And you think one person out of three is a

majority?MR. KENDRICK: That calls for a legal

conclusion. I'm going to object to that.

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BY MR. ETTINGHOFF: Q I'm just asking for your opinion.

Do you think one person out of three is amajority?

Did you read this document, ma'am, before yousigned it?

A Of course.Q All right. Then my question stands: Do you

think that one person out of three is a majority?MR. KENDRICK: Again, I'm going to object that

calls for a legal conclusion.BY MR. ETTINGHOFF:

Q Please answer the question, ma'am. Is oneperson out of three a majority?

A When there's only one person that can sign it,yes.

Q So what you meant to say was that out of thethree people who were on the board, "I'm the only personwho can sign it and, therefore, I approve it"?

MR. KENDRICK: I'm going to object that callsfor a legal conclusion.BY MR. ETTINGHOFF:

Q Well, one person out of three is not amajority, is it?

MR. KENDRICK: Again, that calls for a legal

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conclusion. Same objection.BY MR. ETTINGHOFF:

Q Okay. Then let's look down further on page 2here where it talks about the "VARIANCE AGREEMENT". I'mgoing to ask you to read that paragraph to yourselfunder paragraph "II." where it states that -- and I'llread it into the record, "It is further agreed thatafter consideration of the binding decision made by theprevious Board of Directors in 2012, the existing palmson the Lot do not constitute an unreasonable viewobstruction under Section 10.08 of the CC&R's."

Do you see that sentence?A Yes. Q Now, you just told me a little while ago that

you didn't have any opinion when you signed thisdocument about whether or not those palms unreasonablyobstructed Mr. Rezai's view, right?

MR. KENDRICK: I'm going to object, that thatmisstates her testimony.BY MR. ETTINGHOFF:

Q Didn't you just testify a little while ago,ma'am, that you didn't have any opinion at the time whenyou signed this document whether or not the palms onMr. Crossley's lot unreasonably obstructed Mr. Rezai'sview?

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A Yes.Q Okay. But in this Variance which is a recorded

document --A Hm-hmmn. Q -- recorded with the Orange County

Recorder's --A Right.Q -- office which you've signed now on

December 10th, 2013, you're making a statement inwriting which has the legal effect that Mr. Crossley, Iassume, wants and that is, is that you're granting him avariance and the reason why you're granting him avariance is because you do not believe that those palmsconstitute an unreasonable view obstruction.

MR. KENDRICK: That completely misstates theevidence and what this document says which you just readinto the record. It completely -- your questioncompletely misstates what you just read into the record,and I'm just going to object, that that misstates theevidence.BY MR. ETTINGHOFF:

Q Okay. Ma'am, do you think that it's prudent asa board member to sign documents which are not true?

MR. KENDRICK: I'm going to object to that asjust harassing the witness and -- and --

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MR. ETTINGHOFF: She just testified, Counsel -- MR. KENDRICK: -- giving insulting -- MR. ETTINGHOFF: -- that she had no opinion and

she had no basis for making an opinion because she hadnot even seen Mr. Crossley's palm trees from Mr. Rezai'sproperty.

She's admitted in this deposition already shecan't recall when the last time that she was at Mr. Rezai's property; it could have been more than fiveyears ago.

She did not go to Mr. Rezai's property todetermine whether or not these trees had been trimmed byMr. Crossley or what effect they had on his view andyet, on December 10th, 2013, she alone, acting in herown capacity as a board member of the HarborPointe-Newport Owners Association, granted a variance toMichael Crossley for his palm trees and she stated inwriting in that Variance that the reason why thevariance was being granted to him is that the palms didnot unreasonably block Mr. Rezai's view.

MR. KENDRICK: Counsel, you're misstating whatit says. It says, "It is further agreed afterconsideration of the binding decision made by theprevious Board of Directors in 2012, that the existingpalms on the Lot do not constitute an unreasonable

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obstruction under Section 10.08 of the CC&R's." So you are conflating her opinion, her personal

opinion, which was testified to in a different context,with this statement in this recorded document whichstates the basis for the decision on its face.

MR. ETTINGHOFF: Okay. Good. Then let'sdevelop this further then. BY MR. ETTINGHOFF:

Q Are you saying, ma'am, is it your testimonyhere today that you granted Michael Crossley a variancefor his palm trees and you did not have any opinion atthe time when you granted this about whether histrees -- whether his palms unreasonably obstructedMr. Rezai's view?

MR. KENDRICK: I'm going to object, that thatmisstates everything, her testimony and this document.She never testified that she made this decision based onher opinion, and it states in here that she -- that thedecision was based on consideration of the bindingdecision of the prior board. So I'm going to objectthat you're misstating the evidence.BY MR. ETTINGHOFF:

Q Okay. Then is it your testimony, ma'am, thatthe reason why you gave Michael Crossley a variance forhis palms is based upon the binding decision made by the

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previous board that the palms do not constitute anunreasonable view obstruction?

MR. KENDRICK: I'm going to object that the writing, the document speaks for itself. That is whatit says in there; however, I don't think that thatnecessarily precludes her also having her own personalopinion as to what she felt at the time that she signedthe document.

MR. ETTINGHOFF: Well, she's already testifiedthat she didn't have any opinion about whether or notthe palms obstructed Mr. Rezai's view.

So now I'm trying to find out, is it the reasonwhy she granted the variance based upon this allegedbinding decision that was made by a previous board.

MR. KENDRICK: I'm just going to object thatthe document speaks for itself. It's a recordeddocument.

MR. ETTINGHOFF: I'm entitled to know why shegranted this variance, Counsel.

MR. KENDRICK: She gave you her testimony as toher opinion and the document itself speaks for itself.

MR. ETTINGHOFF: All right. MR. KENDRICK: I'm going to object.You can answer the question, if you have some

other answer than what you've already given the guy.

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BY MR. ETTINGHOFF: Q Ms. Morris, is it your testimony that you

granted Michael Crossley a variance for his palms --A Yes.Q -- based upon the binding decision made by the

previous board that those palms do not unreasonablyblock Mr. Rezai's view?

A Yes.Q And I've asked you this before, but I'll ask it

to you again: Have you ever seen any document thatshows that the previous board made such a bindingdecision?

MR. KENDRICK: That you recall.THE WITNESS: Hmmn?MR. KENDRICK: If you recall.THE WITNESS: I do not recall.

BY MR. ETTINGHOFF: Q You don't recall seeing any documents like

that?A No.Q Did somebody tell you that the previous board

had made such a binding decision?MR. KENDRICK: Again, if you recall.THE WITNESS: I don't recall.

BY MR. ETTINGHOFF:

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Q Did you ever speak to Danni Sun or toFrank Hickingbotham about that subject?

A No.Q You mean you signed this Variance and had it

recorded with the Orange County Recorder's office -- A Uh-huh.Q -- in December of 2013 and you never even asked

the people who supposedly granted this -- or who madethis binding decision, you never even asked them whetherthey, in fact, made that decision?

A Well, for your information, Danni Sun had ahorrible heart attack and she has been in terrible shapesince being on the board with him and --

MR. KENDRICK: Let's just confine yourself tohis question. If you have any recollection of beingtold by anybody that there --

MR. ETTINGHOFF: That's the wrong question,Counsel.

MR. KENDRICK: -- was this binding decision. MR. ETTINGHOFF: No, with it -- Counsel, the

question that's pending right now is whether she everspoke to either Danni Sun or Frank Hickingbotham whowere the people on the board that supposedly made thisbinding decision that Mr. Rezai's view was notunreasonably blocked.

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BY MR. ETTINGHOFF: Q My question to you is: Did you ever speak to

Danni Sun or Frank Hickingbotham about that decision?MR. KENDRICK: If you recall.THE WITNESS: I don't recall.

BY MR. ETTINGHOFF: Q You know, ma'am, I -- you're entitled to listen

to the coaching by your attorney --A Hm-hmmn. Q -- as much as you want -- A Hm-hmmn. Q -- but I want to caution you right now that if

you say that you can't recall something right now, whenthis case goes to trial in September or October orwhenever --

A Uh-huh. Q -- it's scheduled to go to trial, if the

association asks you to be a witness or if you're calledas a witness in the trial and you testified at yourdeposition here today that you don't recall, then if youtry to change your testimony later on, it's going tolook --

MR. KENDRICK: Counsel, I'm going to stop youright here from harassing the witness. You gave youradmonition --

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MR. ETTINGHOFF: I'm not harassing her.MR. KENDRICK: You gave your admonition at the

outset. MR. ETTINGHOFF: Counsel -- MR. KENDRICK: You're threatening the witness

and she's entitled to her counsel's offer of that. MR. ETTINGHOFF: Counsel, I am not threatening

the witness. I'm reminding her now and I'm -- MR. KENDRICK: You're harassing her.MR. ETTINGHOFF: -- warning her that if she

bases -- she's following your hints on how to answer allmy questions. You keep on throwing in all these hintsabout how she should answer my questions and each hintthat you give her, she's following your hints.BY MR. ETTINGHOFF:

Q I'm just warning the witness, that by followingyour counsel's hints to answer that you don't recall,that at the trial of this matter, if you try to testifydifferently than other than you recall, then anybody,any of the attorneys or the parties can ask you why youcouldn't recall it here at your deposition when you'reunder oath, but then all of a sudden at the trial yourecall something.

MR. KENDRICK: Are you finished? You've givenyour admonition. Continue with your questioning,

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please.MR. ETTINGHOFF: Okay.

BY MR. ETTINGHOFF: Q Now, at the time when you granted this variance

to Mr. Crossley in December of 2013, the CC&R's had notbeen am

connie morris deposition

Documents