Evidence Objections To Declaration

1 RICHARD J.
MATHIAS
5042 Wilshire Blvd., #38977
2 Los Angeles, CA 90036
(562) 907-8571
3 richmathias3@gmail.com
4 PLAINTIFF IN PRO PER
5
SUPERIOR COURT OF THE STATE OF CALIFORNIA
6
COUNTY LOS ANGELES, CENTRAL DISTRICT
7
UNLIMITED JURISDICTION
8
9
RICHARD J. MATHIAS, AN Case No.: BC629912
10 INDIVIDUAL,
Assigned to:
11 Hon. Dalila Corral Lyons (Dep’t. 20)
Plaintiff,
12 PLAINTIFF’S EVIDENTIARY
Vs.
OBJECTIONS TO THE DECLARATION
13 OF ROGER LOWREY SUBMITTED BY
FIDELITY NATIONAL TITLE
COMPANY, A CALIFORNIA THE FIDELITY DEFENDANTS IN
14 SUPPORT OF THEIR MOTION FOR
CORPORATION; FIDELITY NATIONAL
TITLE INSURANCE COMPANY, A SUMMARY JUDGMENT OR,
15 ALTERNATIVELY, FOR SUMMARY
CALIFORNIA CORPORATION, AND
DOES 1 – 25, INCLUSIVE, ADJUDICATION OF ISSUES.
16
Defendants. DATE: January 29, 2018
17 TIME: 8:30 am
DEP’T: 20
18
TRIAL DATE: April 9, 2018
19
20
21 TO ALL PARTIES AND THEIR COUNSEL OF RECORD HEREIN:

22 In Opposition to the FIDELITY defendants’ motion for summary judgment or, in the
23 alternative, summary adjudication of issues (“Motion”), plaintiff submits his Evidentiary
24 Objections to the Declaration of Roger Lowrey pursuant to Code of Civil Procedure sections
25
PLAINTIFF’S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF ROGER LOWREY
26 PAGE 1
1 437c(c), (d), and (q), and Rules 3.1352 and 3.1354 of the California Rules of Court. Plaintiff
2 requests that the Court rule on these objections prior to considering defendants’ Motion and
3 strike those portions of the declaration with respect to which the Court sustains objections.
4 First, plaintiff objects to the Declaration of Roger Lowrey and moves the Court to strike
5 the entire declaration because it fails in every respect to comply with section 437c(d) of the
6 Code of Civil Procedure. Under the Code:
7 (d) Supporting and opposing affidavits or declarations shall be
8 made by a person on personal knowledge, shall set forth admissible
9 evidence, and shall show affirmatively that the affiant is competent to
10 testify to the matters stated in the affidavits or declarations.
11 Cal. Code Civ. Proc. § 437c(d) (emphasis added).
12 The summary judgment statute requires that the declarant specifically state, in the
13 declaration, that s/he has personal knowledge of the facts “stated in the affidavits or
14 declarations” and that s/he is “competent to testify to the matters stated in the affidavit or
15 declarations.”
16 In Corwin v. Los Angeles Newspaper Services Bureau, Inc. (1971) 4 Cal.3d 840, 848,
17 the Supreme Court stated the governing rule: “Such facts 'shall be set forth with particularity'
18 (Code Civ. Proc., § 437c) and shall be within the personal knowledge of the affiant, the
19 affidavit to show that the affiant, if sworn as a witness, can testify competently thereto.”
20 Corwin, 4 Cal.3d at 849 & n6.
21 The declaration of Roger Lowrey fails to comply with either of the two mandatory
22 foundational requirements of Code section 437c(d). First, as illustrated below in the grid,
23 while Lowrey asserts in paragraph 3 that he “was personally involved in the transaction
24 which is the subject of this litigation and ha[s] personal knowledge of the underlying details
25
26 PAGE 2
1 of the title order and transaction,” he never states anywhere in the declaration that he “has
2 personal knowledge of the facts set forth in his declaration.” Similarly, nowhere in
3 paragraph 3 or 4 (or anywhere else) does Mr. Lowrey affirmatively state that he “is
4 competent to testify to the matters stated in the affidavit or declaration.”
5 This fundamental failure to furnish the required foundational evidence establishing
6 Lowrey’s competence to testify about the matters stated in his declaration is vividly
7 illustrated by reference to his proffered testimony in paragraph 13. As set forth below in
8 objections__ through __, Lowrey testifies that “FNTC did not make any determination
9 regarding the validity or enforceability of the aforementioned mechanic’s liens or the
10 claimants’ entitlement to be paid.” According to Lowrey, FNTC “simply was concerned
11 about matters of record being either paid or released in order to close the transaction.”
12 The most obvious defect in this statement is the fact that it begs the question, because
13 it is FNTC who ultimately determines what will be deemed a “matter of record” [see
14 Objections __ through __ inclusive]. After all, that is what a title company is hired to do
15 and that is why, as Lowrey confirms in paragraph 11 of the declaration, “the title company
16 continues its examination and research into matters that appear of record” throughout the
17 escrow process.
18 As relevant here, documentary evidence produced by FNTC/FNTIC disclose that it
19 was Lowrey’s supervisor Rick Stine, together with FNTIC’s in-house underwriting counsel
20 Scott Fallar, who made the decision to retain as matters of record the two mechanic’s
21 liens in issue. See Mathias Decl., ¶ ___ & Exhs. ___. The truth is that Roger Lowrey did
22 not make this core, foundational decision. See Mathias Decl., ¶ ___ & Exhs. ___.
23 Because Lowrey did not make the decision to keep the two mechanic’s liens on the list of
24 “exceptions” to the “clear title” that FNTIC was willing to insure under the anticipated title
25
26 PAGE 3
1 policy, none of his testimony on these subjects is admissible evidence because he is not
2 competent to offer such evidence. See Objections ___ through ___.
3 Instead, the only competent evidence on this core issue is an e-mail that Rick Stine,
4 Senior Vice President and Director of Operations for all of Los Angeles County, and Mr.
5 Lowrey’s supervisor, wrote dated April 20, 2016. See Mathias Decl., ¶ ___ & Exh. ___.
6 That e-mail is directed to Scott Fallar, who is the regional underwriting counsel for FNTIC.
7 In this e-mail, Rick Stine states the following: “The good news is the liens are over 90 days
8 old and there has been no action to enforce the liens. My concern is the claimant has
9 supplied demands.” See Mathias Decl., ¶ ___ & Exhs. ___. [FNT 01234].
10 This April 20, 2016, e-mail confirms that FNTC knew that the two mechanic’s liens
11 were legally invalid and unenforceable because Stine celebrated the “good news” that the
12 liens were “more than 90 days old” and also confirmed that no lawsuits had been filed in
13 court to enforce them. And that was “good news” precisely because Stine knew that under
14 California Civil Code section 8460, as a matter of law, “the claim of lien expires and is
15 unenforceable” when no action to enforce it has been filed within 90 days of the recordation
16 of the claim of lien. See Fidelity’s California Legal Bulletin, ____; Miller & Star _____,
17 attached as Exh. __ to the R. Mathias Decl.
18 Thus, the documentary evidence from Stine directly contradicts Lowrey’s testimony
19 that Fidelity purportedly “made no determination” as to the validity of the liens. Stine knew
20 that the two liens were unenforceable and invalid under Civil Code section 8460, but still
21 insisted they remain as “matters of record.”
22 And the same holds true for the second part of Stine’s e-mail where he expressed “his
23 concern” about the liens he knew were invalid. He was concerned was “the claimant has
24 supplied demands.” Despite the mountains of sworn statements and other documents Stine
25
26 PAGE 4
1 received showing that the two “Escrow Demands” from “Jeff Allan” were fraudulent and
2 that his “Glendale Acceptance LLC” was not the “lawful claimant”, Stine nevertheless
3 determined to recognize those demands as being “legitimate demands supplied by” lien
4 claimants. Otherwise, why would he have expressed that specific “concern.”
5 On both factual issues, the Stine e-mail demonstrates that FNTC’s senior most
6 executive in charge knew the liens were invalid and unenforceable, but he insisted they
7 remain as “matters of record” precisely because he also determined, albeit erroneously, that
8 “the claimant supplied demands.” If that were not the case, we would not be here.
9 This is but one illustration of why it is essential to enforce the evidentiary
10 requirement that the declarant show admissible evidence of his competence to proffer the
11 facts asserted in the declaration.
12 Because Mr. Lowrey’s declaration fails to comply with either of the two requirements
13 of Code section 437c(d), it is not admissible and must be disregarded. The affidavit
14 requirements of Code section 437c(d) are mandatory, not permissive, as the Supreme Court
15 confirmed in Corwin:
16 It is, therefore, well settled that summary judgment cannot be ordered
17 for the moving party, even though the affidavits of the opposing party
18 be insufficient or absent, unless the moving party presents affidavits in
19 support of his motion which comply with the statute and show that he
20 is entitled to judgement.
21 Corwin, 4 Cal.3d at 849 & n6.
22 For this reason, as a threshold matter, plaintiff moves the Court for an order excluding
23 the Lowrey Declaration in its entirety for failure to comply with Code section 437c(d).
24
25
26 PAGE 5
1 On the substance of the proffered testimony, the following objections are limited to
2 particular factual assertions involving the plaintiff’s transaction with FIDELITY that resulted
3 in the formation and execution of the four-page Indemnity and Security Agreement (with
4 Deposit) and Authorization (hereinafter “Indemnity Agreement”) that is the subject matter of
5 Plaintiff’s First Amended Complaint filed herein on December 1, 2016.
6 Objections to the Lowrey Declaration
7 Material Objected to: Grounds for Objection Ruling on Objections
8 Lowrey Decl., ¶ 3, p2:11- 1. DECLARANT FAILS TO

15: “I was personally COMPLY WITH CODE
9 involved in the transaction SECTION 437c(d) AND THUS ____ SUSTAINED
which is the subject of this HIS ENTIRE DECLARATION
10 litigation and have personal MUST BE DISREGARDED. The ____ OVERRULED
knowledge of the underlying Code requires that supporting
11 details of the title order and declarations “shall be made on
transaction. I oversaw and personal knowledge, shall set forth
12 supervised the title order, admissible evidence, and shall show
operations, title searches and affirmatively that the affiant is
13 communications between competent to testify to the matters
FNTC, Mr. Mathias and the stated in the affidavits or
14 escrow company. I also declarations.” CCP § 437c(d)
drafted the subject Indemnity (emphasis added). Lowrey fails both
15 Agreement and had brief requirements. First, his testimony
communications with the confirms that he was personally
16 buyer's real estate agent and involved in the transaction, that he
plaintiff, Richard J. Mathias oversaw title work, and that he had
17 ("Mathias").” brief communications with plaintiff.
However, Lowrey never states that
18 he has personal knowledge of the
facts set forth in the declaration itself
19 at paragraphs 6 through 24. The
Code requires that specific
20 affirmative showing. As applied
here, it is all well and good that Mr.
21 Lowrey was “personally involved in
the transaction” and with the title
22 work done by FNTC, and that he has
“personal knowledge of the
23 underlying details of the title order.”
But his personal involvement does
24 not mean that he has personal
knowledge of all of the facts that are
25
26 PAGE 6
1 contained in the body of his
declaration. There is a huge
2 difference.
Second, the Code requires that a
3 declarant specifically state that s/he
is “competent to testify to the matters
4 stated in the affidavit or declaration.”
Here, Lowrey never mentions his
5 competence to testify as to the
matters set forth in his declaration
6 nor does he state that he would or
could testify if called as a witness.
7 This is a core, basic requirement of
the Code and Lowrey’s declaration
8 fails to satisfy either one of the two
elements. As such, the declaration
9 must be disregarded in its entirety.
Corwin, 4 Cal.3d at 849; Baron v
10 Mare (1975) 47 CA3d 304, 308
(declaration excluded when declarant
11 failed to expressly state that all
proffered facts “were true” as
12 required by statute); Evid. Code §
702 (showing of competence requires
13 testimony that witness has personal
knowledge of each fact stated in the
14 declaration).
15 2. THE PROFFERED
TESTIMONY IS
16 CONTRADICTED BY ____ SUSTAINED
CONTEMPORANEOUS E-MAIL
17 BETWEEN DECLARANT’S ____ OVERRULED
SUPERVISOR RICK STINE AND
18 FNTIC’S UNDERWRITING
COUNSEL SCOTT FALLAR.
19 The representation by Lowrey that he
“drafted the indemnity agreement” is
20 completely false. Contemporaneous
e-mail between Lowrey’s supervisor,
21 Rick Stine, FNTC Senior Vice
President and Director of Operations
22 of the Sherman Oaks Office, and
Scott Fallar, a regional staff counsel
23 and underwriter for FNTIC, confirm
that the Indemnity Agreement was a
24 “standard form agreement” and that
Fallar was the senior counsel in
25
26 PAGE 7
1 underwriting who rejected plaintiff’s
request to modify the standard forms
2 on April 21, 2016. [R. Mathias
Decl., Exh ___].
3
3. VAGUE AND AMBIGUOUS
4 AS TO TIME FRAMES OF
PERSONAL KNOWLEDGE.
5 Lowrey provides no date or time
references in connection with his
6 statement that he “had brief
communications with the buyer's real
7 estate agent and plaintiff, Richard J. ____ SUSTAINED
Mathias.” While the structure of the
8 sentence implies that he had ____ OVERRULED
communications with plaintiff in
9 connection with the Indemnity
Agreement, the truth is that Mr.
10 Lowrey had no contact with plaintiff
at all until three weeks after the close
11 of escrow, on or about May 20, 2016.
In fact, Lowrey’s name never
12 appeared on any communications
from FNTC to plaintiff. See Mathias
13 Decl., ¶ ___.
During the entire five-week escrow
14 process, plaintiff’s communications
with FNTC consisted entirely of the
15 following: a single three minute
phone call with Sheila Isham, FNTC
16 Title Officer, and two or three e-
mails from Ms. Isham. That’s it;
17 plaintiff never heard of Mr. Lowrey
until May 20, 2016, when Mathias
18 personally delivered all lien releases
to Mr. Lowrey at his Sherman Oaks
19 Office. R. Mathias Decl., ¶ __.
Thus, under Evidence Code § 702,
20 declarant fails to clearly state facts
that establish his competence to
21 testify with personal knowledge.
22
23
24
25
26 PAGE 8
1
Lowrey Decl., ¶ 4, p.2:16- 4. LACKS RELEVANCE [Evid.
2 21. “In connection with this Code § 210, 350]. Declarant’s
litigation and the Motion conclusory assertion that he has
3 filed concurrently herewith, I reviewed various records and
have also reviewed the documents maintained by FNTC is ____ SUSTAINED
4 relevant documents meaningless and irrelevant because it
maintained by FNTC related does not have “any tendency in ____ OVERRULED
5 to title order 00126305-994- reason to prove or disprove any
VNO-SI, which is the title disputed fact that is of consequence
6 order and transaction which to the determination of the action.”
is the subject of the lawsuit Cal. Evid. Code § 210. This is
7 filed by Mathias herein. My especially true when viewed as an
review of documents attempt to lay foundation for
8 included the title file subsequent conclusory assertions
originally generated and about which he has no stated
9 presently maintained by personal knowledge. None of
FNTC and documentation Lowrey’s subsequent conclusory
10 related thereto. I have access assertions are ever connected to any
to the title file and particular document for which any
11 documentation related thereto proper foundation is laid or
as it is being maintained by authentication even attempted.
12 FNTC.”
5. IMPROPER USE OF
13 EVIDENCE CODE SECTION
1271. This language is drawn from ____ SUSTAINED
14 Evidence Code section 1271, which
expresses an exception to the hearsay ____ OVERRULED
15 rule applicable to records of a
financial institution, lender, or
16 creditor involved in a consumer debt
collection action. This exception
17 does not apply generically to provide
an exception to the hearsay rule with
18 respect to unidentified documents
declarant never even specified.
19
6. VAGUE, AMBIGUOUS, ____ SUSTAINED
20 UNINTELLIGIBLE. This
testimony is vague and ambiguous ____ OVERRULED
21 because it fails to specify any
particular documents relevant to this
22 case; fails to identify the physical
location of records never identified,
23 and is overbroad to the extreme.
24
25
26 PAGE 9
1 7. ASSUMES FACTS NOT
ADMITTED INTO EVIDENCE.
2 (§ 400). This declarant is attempting ____ SUSTAINED
to rely on inadmissible documentary
3 hearsay evidence that has never been ____ OVERRULED
admitted into evidence; he should not
4 be allowed to testify in summary
fashion to re-characterize
5 transactions and documents that he
was never part of creating and with
6 regard to which he has no personal
knowledge; to the extent that this
7 witness is attempting to testify as to
facts and events that he learned about
8 based on his review of FNTC
documents, his testimony should be
9 disallowed until and unless he
specifically identifies which business
10 records he is relying upon as the
basis of his testimony. Otherwise, he
11 is relying on inadmissible hearsay to
support the existence of facts not
12 admitted into evidence.
13 8 SECONDARY EVIDENCE
RULE. (Evid. Code § 1521). All
14 references to, and testimony ____ SUSTAINED
concerning, FIDELITY’s document
15 retention policies or the procedures ____ OVERRULED
by which defendants create or
16 maintain those records, should be
stricken because this declarant has
17 failed to lay foundation establishing
any personal knowledge of those
18 procedures, nor has he related those
procedures to documents relating to
19 this litigation. Thus, declarant’s
testimony constitutes secondary
20 evidence of the existence and content
of such policies and procedures and
21 should be held inadmissible under
Evidence Code section 1521. This
22 Court should flatly reject all of his
testimony with respect to which
23 reference to a business document or
other record would provide the best
24 evidence of the facts being proffered.
25
26 PAGE 10
1 9 LACKS FOUNDATION (§ 403).
Declarant never describes any
2 document retention policies, ____ SUSTAINED
document claims requirements, or
3 any other specific record retention or ____ OVERRULED
management policies of FIDELITY
4 and thus his conclusory assertions are
completely lacking in foundation and
5 are inadmissible into evidence.
6 10 CONCLUSORY. A declaration ____ SUSTAINED

which sets forth only conclusions,
7 opinions or, ultimate facts is ____ OVERRULED
insufficient because conclusory
8 statements are not admissible facts.
Kramer v. Barnes (1963) 212
9 Cal.App.2d 440, 446.)
10
11 Lowrey Decl., ¶ 5, p.2:22 – 11. LACKS RELEVANCE [Evid.

28. “The title file includes Code § 210, 350]. Declarant’s
12 documents which were made conclusory assertion that he is ____ SUSTAINED
at or near the time they were familiar with the business records
13 created by, or from maintained by FNTC and the ____ OVERRULED
information provided by, methods and procedures by which
14 persons with knowledge of FNTC creates and/or maintains such
the activity and transactions, records is irrelevant because it does
15 including Sheila Isham, the not have “any tendency in reason to
assigned title officer for this prove or disprove any disputed fact
16 title order and additional that is of consequence to the
members of my staff which I determination of the action.” Cal.
17 oversee as the title manager. Evid. Code § 210. This is especially
The documents are kept by true when viewed as an attempt to
18 FNTC and its employees in lay foundation for subsequent
the ordinary course of conclusory assertions none of which
19 business conducted by FNTC are connected to any particular
and it is the regular practice document for which any proper
20 of FNTC and its employees, foundation is laid or authentication
including Ms. Isham and the even attempted.
21 additional members of my
staff, to make these records.” 12. IMPROPER ATTEMPT TO
22 LAY FOUNDATION FOR ____ SUSTAINED
UNSPECIFIED DOCUMENTS.
23 Declarant uses this paragraph as the ____ OVERRULED
purported foundation for his
24 “personal knowledge” of the
conclusory facts he offers throughout
25
26 PAGE 11
1 his declaration despite never once
identifying any record upon which he
2 relies and without ever connecting
the unspecified records to the actual
3 conclusory facts proffered in his
subsequent paragraphs.
4
13. IMPROPER USE OF
5 EVIDENCE CODE SECTION
1271. This language is drawn from
6 Evidence Code section 1271, which ____ SUSTAINED
expresses an exception to the hearsay
7 rule applicable to records of a ____ OVERRULED
financial institution, lender, or
8 creditor involved in a consumer debt
collection action. This exception
9 does not apply generically to provide
an exception to the hearsay rule with
10 respect to unidentified documents
declarant never even specified.
11
14. VAGUE, AMBIGUOUS,
12 UNINTELLIGIBLE. This
testimony is vague and ambiguous
13 because it fails to specify any ____ SUSTAINED
documents relevant to this case; fails
14 to identify the physical location of ____ OVERRULED
records never identified, and is
15 overbroad to the extreme. This
statement is vague and unintelligible
16 in the context of this declarant’s
competence to offer admissible
17 evidence about the facts and
circumstances of how FIDELITY
18 complied with its obligations under
that contract.
19
15 ASSUMES FACTS NOT
20 ADMITTED INTO EVIDENCE. ____ SUSTAINED
(§ 400). This declarant is attempting
21 to rely on inadmissible documentary ____ OVERRULED
hearsay evidence that has never been
22 admitted into evidence; he should not
be allowed to testify in summary
23 fashion to re-characterize
transactions and documents that he
24 was never part of creating and with
regard to which he has no personal
25
26 PAGE 12
1 knowledge; to the extent that this
witness is attempting to testify as to
2 facts and events that he learned about
based on his review of FNTC
3 documents, his testimony should be
disallowed until and unless he
4 specifically identifies which business
records he is relying upon as the
5 basis of his testimony. Otherwise, he
is relying on inadmissible hearsay to
6 support the existence of facts not
admitted into evidence.
7
16. SECONDARY EVIDENCE
8 RULE. (Evid. Code § 1521). All
references to, and testimony
9 concerning, FIDELITY’s document ____ SUSTAINED
retention policies or the procedures
10 by which defendants create or ____ OVERRULED
maintain those records, should be
11 stricken because this declarant has
failed to lay foundation establishing
12 any personal knowledge of those
procedures, nor has he related those
13 procedures to documents relating to
this litigation. Thus, declarant’s
14 testimony constitutes secondary
evidence of the existence and content
15 of such policies and procedures and
should be held inadmissible under
16 Evidence Code section 1521. This
Court should flatly reject all of his
17 testimony with respect to which
reference to a business document or
18 othis record would provide the best
evidence of the facts being proferred.
19
17. LACKS FOUNDATION (§
20 403). Declarant never describes any ____ SUSTAINED
document retention policies,
21 document claims requirements, or ____ OVERRULED
any other specific record retention or
22 management policies of FIDELITY
and thus his conclusory assertions are
23 completely lacking in foundation and
are inadmissible into evidence.
24
25
26 PAGE 13
1 18. CONCLUSORY. A
declaration which sets forth only
2 conclusions, opinions or, ultimate ____ SUSTAINED
facts is insufficient because
3 conclusory statements are not ____ OVERRULED
admissible facts. Kramer v. Barnes
4 (1963) 212 Cal.App.2d 440, 44
6 Lowrey Decl., ¶ 12(a), p.5:5 19 SECONDARY EVIDENCE

- 8. “a Mechanic's Lien RULE. (Evid. Code § 1521).
7 recorded on February 2, Plaintiff objects to, and moves to ____ SUSTAINED
2015, as Document No. strike, the last portion of this
8 20150117427 in the Official sentence beginning with “, ____ OVERRULED
Records of the Recorder's purportedly recorded by . . . .” This
9 Office of Los Angeles last part of the sentence is an
County, California. ("RCI-1 objectionable and improper
10 Lien"), purportedly recorded characterization by the declarant of a
by the original claimant of publicly recorded document that
11 the work covered in the lien speaks for itself and is the best
identified as item 12 of the evidence of its content. This
12 Preliminary Report.” objectionable assertion is Mr.
Lowrey’s attempt to create confusion
13 about the actual lien identified as
Item 12 in the final Preliminary
14 Report. The lien documents speak
for themselves and descriptive
15 mischaracterizations by the declarant
are not admissible.
16
20 LACKS RELEVANCE (§§
17 210, 350). Plaintiff objects to, and ____ SUSTAINED
moves to strike, the last portion of
18 this sentence beginning with “, ____ OVERRULED
purportedly recorded by . . . .” This
19 last part of the sentence is
objectionable and improper because
20 it is not relevant insofar as it does not
“have any tendency in reason to
21 prove or disprove any disputed fact
that is of consequence to the
22 determination of the action.” The
RCI-1 Lien was not the lien specified
23 as Item 12. It is irrelevant whether
Mr. Lowrey believes that this lien
24 was purportedly recorded by the
original claimant of a different lien.
25
26 PAGE 14
1 Lowrey Decl., ¶ 12(d), p.5: 21 SECONDARY EVIDENCE
15-17. “a Mechanic's Lien RULE. (Evid. Code § 1521).
2 recorded on October 5, 2016, Plaintiff objects to, and moves to
as Document No. strike, the last portion of this
3 20151229300 in the Official sentence beginning with “, which ____ SUSTAINED
Records of the Recorder's purportedly related to . . .” This last
4 Office of Los Angeles part of the sentence is an ____ OVERRULED
County, California ("KOR-2 objectionable and improper
5 Lien"), which purportedly characterization by the declarant of a
related to an assignment of publicly recorded document that
6 item 14 in the Preliminary speaks for itself and is the best
Report.” evidence of its content. This
7 objectionable assertion is Mr.
Lowrey’s attempt to create confusion
8 about the actual lien identified as
Item 14 in the final Preliminary
9 Report. The lien documents speak
for themselves and descriptive
10 mischaracterizations by the declarant
are not admissible.
11
22 LACKS RELEVANCE (§§
12 210, 350). Plaintiff objects to, and
moves to strike, the last portion of
13 this sentence beginning with “, which ____ SUSTAINED
purportedly related to . . . .” This last
14 part of the sentence is objectionable ____ OVERRULED
and improper because it is not
15 relevant insofar as it does not “have
any tendency in reason to prove or
16 disprove any disputed fact that is of
consequence to the determination of
17 the action.” The KOR-2 Lien was
not the lien specified as Item 14. It is
18 irrelevant whether Mr. Lowrey
believes that this lien was
19 purportedly an assignment of a
different lien.
20
Lowrey Decl., ¶13, p.5:18- 23. THE PROFFERED ____ SUSTAINED
21 22. “FNTC did not make TESTIMONY BY LOWREY IS
any determination regarding DIRECTLY CONTRADICTED ____ OVERRULED
22 the validity or enforceability BY DECLARANT’S
of the aforementioned SUPERVISOR RICK STINE IN
23 mechanic's liens or the CONTEMPORANEOUS E-MAIL
claimants' entitlement to be TO FNTIC UNDERWRITING
24 paid, but simply was COUNSEL SCOTT FALLAR.
concerned about matters of This testimony is directly
25
26 PAGE 15
1 record being either paid or contradicted by a contemporaneous
released in order to close the e-mail from R. Stine to S. Fallar
2 transaction without the liens dated April 20, 2016, wherein Stine,
being reported as exceptions Mr. Lowrey’s supervisor and
3 in the anticipated policy of FNTC’s Senior Vice President
title insurance in favor of the responsible for all Los Angeles
4 buyer, Morales.” County FNTC Operations, stated:
“the good news is the [2 mechanic’s
5 liens] are over 90 days old and there
has been no action to enforce the
6 liens. My concern is the claimant
has supplied demands.” See R.
7 Mathias Decl., Exh. ___ [e-mail from
R. Stine to S. Fallar, April 20, 2016,
8 FNT01660 – FNT01662]
9 Lowrey’s contrary testimony

should be disregarded because the
10 communication from Stine is from a
senior officer of the company. It
11 confirms that FNTC not only
determined that the two liens were
12 legally unenforceable and invalid
under Civil Code section 8460
13 (because they were more than 90
days old and no enforcement actions
14 had been filed) and thus those liens
could have (and should have) been
15 removed from the record title as a
“concern,” just as other invalid liens
16 had been removed. But Stine’s
comment also confirms that FNTC
17 determined erroneously that “the
claimant has supplied demands.”
18 Plaintiff repeatedly informed FNTC
that the person making the demand
19 for payment, supposedly “Kathryn
Lauer”, was not the actual lien
20 claimant on either of the two
mechanic’s liens. Nor was she the
21 “assignee” of either lien. Instead, the
two escrow demands for payment
22 were each allegedly signed by “Jeff
Allan”, on behalf of “Glendale
23 Acceptance, LLC.” Kathryn Lauer’s
name appeared nowhere on either
24 demand. And Jeff Allan was sitting
in a Colorado State Prison serving a
25
26 PAGE 16
1 10-year sentence on a 330-felony
count indictment for fraud and
2 extortion. R. Mathias Decl., ¶ __ &
Exh. __. Despite Plaintiff’s repeated
3 written directions to FNTC to
authenticate and validate the
4 demands (which was FNTC’s
obligation as the title company and
5 the sub-escrow funding agent), and
despite his written memo detailing
6 the specific fraudulent elements of
each claim, and despite the fact that
7 “Jeff Allan”, whose true name is Jeff
Allan McCoon, was sitting in a
8 Colorado state prison cell on April 5,
2016, and April 25, 2016, when “he”
9 purportedly signed the four
fraudulent escrow payment demands,
10 FNTC still decided wrongly that the
actual legal lien claimant had
11 “submitted demands” for payment
that were “legitimate,” thereby
12 serving as the basis for requiring the
Indemnity Agreement in the first
13 place.
The quoted portion of Lowrey’s
14 testimony in this regard is conclusory
and self-serving nonsense that is
15 factually contradicted by his own
supervisor. It should, therefore, be
16 disregarded.
17 24 THE PROFFERED
TESTIMONY LACKS
18 FOUNDATION AND STANDS IN ____ SUSTAINED
DIRECT CONFLICT WITH THE
19 INDEMNITY AGREEMENT ____ OVERRULED
ITSELF. As stated above, Lowrey
20 was not the senior executive calling
the shots here. Rather, based on the
21 limited documents produced by
FNTC, Rick Stine was the senior-
22 most officer who states, in writing,
that he “agreed to” hold the secured
23 indemnity. Thus, Lowrey’s
testimony on the issues of the
24 Indemnity Agreement and FNTC’s
gross failure to properly manage
25
26 PAGE 17
1 what should have been a no-brainer
(discarding the stale fraudulent liens
2 Stine admitted were unenforceable
anyway) must be disregarded for lack
3 of proper foundation. He was not the
decision maker and has no
4 competence – as established through
inclusion of admissible factual
5 foundation – to proffer any evidence
as to FNTC’s actual decisions in this
6 transaction.
Moreover, Lowrey’s testimony
7 here is really quite absurd and self-
evidently refuted by the insistence of
8 Stine and Fallar that plaintiff sign the
Indemnity Agreement as it was
9 presented on April 26, 2016, without
a single revision or change. The only
10 reason we are here in litigation is
precisely because FNTC/FNTIC
11 actually did make a determination
that, in its view, the two liens were
12 valid, that they would be enforced by
FNTC / FNTIC, and that the proper
13 legal lien “claimant ha[d] supplied
demands” for payment. If that were
14 not the case, Stine would not have
said so in his e-mail to underwriting
15 and FNTC/FNTIC would never have
demanded that plaintiff sign the
16 Indemnity Agreement and fork over
half his net proceeds from the sale at
17 closing.
18 25 THE PROFFERED
TESTIMONY IS IN DIRECT
19 CONFLICT WITH THE ____ SUSTAINED
ACTUAL PROCESS AND
20 PROCEDURES FNTC USED ____ OVERRULED
WHEN IT DECIDED TO
21 REMOVE AND CORRECT
OTHER INVALID LIENS AS
22 “EXCEPTIONS” THAT WERE
ORIGINALLY CONTAINED IN
23 THE PRELIMINARY REPORT
DURING THE ESCROW
24 PROCESS. The quoted portion of
Lowrey’s Declaration should be
25
26 PAGE 18
1 disregarded for the additional reason
that it is simply inconsistent with the
2 actions FNTC staff took with regard
to other “exceptions” and items
3 removed from early draft versions of
the Preliminary Report. Specifically,
4 as Lowrey himself acknowledges in
paragraph 11, “it is not uncommon
5 for their (sic) to be multiple
Preliminary Reports and supplements
6 thereto, as the title company
continues its examination and
7 research into matters that appear of
record.” This portion of Lowrey’s
8 declaration confirms the obvious:
the title company continues its
9 examination and research throughout
the escrow process. And as
10 corrections and new documentation
is received and analyzed, FNTC
11 routinely removes items as
exceptions from the Preliminary
12 Report as it deems appropriate and
commercially reasonable within the
13 underwriters’ determination of
acceptable insurable risk. That is
14 precisely why title companies are
hired; it is their core function to
15 support insurance underwriting risk
analysis.
16 For example, in the subject
transaction, the initial Preliminary
17 Report [Exh. A to Lowrey’s
Declaration] included as exceptions
18 to “clear insurable title” item 15,
which was listed as a lien to secure a
19 $607,000 deed of trust payable to
Samuel L. Wong, and Item 16, a lien
20 for unsecured property taxes in the
amount of $1,126.43 recorded by Los
21 Angeles County in 2014. See
Exhibit A to Lowrey Decl.,
22 p.FNT00331.
The revised Preliminary Report
23 dated March 4, 2016, attached as
Exhibit B to Lowrey’s Declaration
24 still reflected the $607,000 lien for
Mr. Wong (now Item 16), but the
25
26 PAGE 19
1 prior exception that had been listed
for the unsecured property taxes to
2 Los Angeles County for $1,126.43
had been removed and was no longer
3 identified as a “cloud” on title. See
Exhibit B to Lowrey Decl.,
4 p.FNT00153-154.
Here’s why these two items are
5 significant. The $607,000 Wong
Lien was completely erroneous.
6 Between March 20, 2016, and April
19, 2016, Mathias communicated to
7 FNTC staff the correct amount of the
lien, which was $17,000. FNTC
8 asked for a copy of the underlying
promissory note and after plaintiff
9 provided escrow and FNTC with the
original loan documents, Mr. Wong
10 confirmed that his lien was for
$17,000, and Item 16 was corrected
11 to the right amount and paid through
escrow. R. Mathias Decl., ¶ ___ and
12 Exh. ___. No supplemental
Preliminary Title Report was ever
13 issued to plaintiff confirming the
removal of the incorrect lien as a
14 matter of record title, because FNTC
staff and plaintiff had worked the
15 issue through with the lien claimant
and the matter was removed by
16 FNTC on its end because FNTC is
the authority on what items are
17 posted or removed as “matters of
record.”
18 With respect to the tax lien,
FNTC requested proof of payment
19 and plaintiff provided a copy of an
un-recorded Certificate of
20 Cancellation and Release of Invaid
Recorded Lien issued by the County
21 of Los Angeles that confirmed the
lien to be a mistake. R. Mathias
22 Decl., ¶__ & Exh. __. FNTC
accepted that Certificate, made the
23 determination that the tax lien was
incorrect and not valid, and FNTC
24 removed the Item as an Exception on
the second Preliminary Report. See
25
26 PAGE 20
1 Exhibit B to Lowrey Decl.,
p.FNT00153-154.
2 These two examples prove that
FNTC had the authority, capacity,
3 and ability to add or remove liens as
“matters of record” contained in the
4 Preliminary Reports.
Which brings us to Items 12 and
5 14 of the Supplemental Preliminary
Report, the two Mechanic’s Liens
6 RCI-2 and KOR-1. The reason those
two items were not removed as
7 “matters of record” was simply
because FNTC/FNTIC made the
8 decision to keep them there. That is
a decision that FNTC/FNTIC made
9 no matter what wording fiction or
paradigm of illusion Lowrey tries to
10 create. The consequence of that
decision was FNTC/FNTIC’s
11 insistence that plaintiff sign the
indemnity and fork over half of his
12 sales proceeds
Plaintiff sent FNTC extensive
13 evidence that the two liens were not
only legally invalid and
14 unenforceable, a fact Stine admits
was true in his April 20, 2016 e-mail,
15 but also that the underlying claims
for payment had been fully paid and
16 the liens were fraudulently recorded
by BOTH the original contractors
17 and by the vexatious Litigant
Kathryn Lauer. Plaintiff’s
18 communications included a detailed
10 page legal memo dated April 8,
19 2016 [________] and four verified
Petitions to Release the Subject
20 Property From Invalid and
Unenforceable Mechanic’s Liens.
21 See R. Mathias Decl., ¶ ___ and
Exhs. ___].
22 These Petitions had been filed in
Los Angeles County Superior Court
23 as follows: Mathias v. Remodeling
California, Inc., et al. case no.
24 BS161677 [Re: RCI-1 Lien];
Mathias v. Kathryn Lauer, dba
25
26 PAGE 21
1 Glendale Acceptance Loss
Mitigation, et al, Case No.;
2 BS161678 [Re: RCI-2 Lien];
Mathias v. K.O Remodeling, Inc.,
3 dba The House Next Door, case no.
BS161679 [Re: KOR-1 Lien]; and
4 Mathias v. Kathryn Lauer, dba
Glendale Acceptance Loss
5 Mitigation, et al., Case no.
BS161680 [Re: KOR-2 Lien].
6 Each of the four petitions
contained a 50+ page sworn
7 declaration by the plaintiff, plus
supporting exhibits in excess of 20
8 documents each, confirming every
single factual ingredient and element
9 of proof as to the fraud being
perpetrated by these two contractors
10 and the vexatious litigant Kathryn
Lauer as to each of the four
11 mechanic’s liens. R. Mathias Decl.,
& Exhs. ______.
12 All together, plaintiff submitted
over 500 pages of sworn testimony
13 proving beyond any doubt that the
liens were stale, unenforceable, and
14 fraudulent. Juxtaposed to plaintiff’s
mountain of sworn testimony and
15 documents, FNTC received two one-
page payment demands dated April
16 5, 2016, signed by “Jeff Allan” – a
convicted extortionist sitting in a
17 Colorado State Prison serving a 10-
year sentence behind a 330-felony
18 count fraud indictment on the date he
supposedly signed the “Glendale
19 Acceptance LLC” escrow demand.
R. Mathias Decl., ¶ ___ and Exh.
20 ___.
But FNTC weighed the evidence
21 and determined, as stated by Mr.
Stine himself, in his April 20, 2016,
22 e-mail, that “the lien claimant
supplied demands” for payment on
23 the two mechanic’s liens. Thus, the
competent admissible evidence
24 establishes two undisputed material
facts: (1) Even though Stine knew
25
26 PAGE 22
1 the two mechanic’s liens were legally
invalid and unenforceable, FNTC
2 decided that the two mechanic’s liens
identified as Items 12 [RCI-2 Lien]
3 and 14 [KOR-1 Lien] would remain
as “items of record title” and not be
4 removed as exceptions to coverage in
the anticipated policy of title
5 insurance without the signed
Indemnity Agreement and the
6 demanded $54,000 security deposit.
And (2) Despite obvious objective
7 indicia of fraud on the face of the
four corners of the two escrow
8 payment demands submitted and
signed by “Jeff Allan” of “Glendale
9 Acceptance LLC”, FNTC regarded
the payment demands as representing
10 an actual, legitimate, and credible
“demand for payment” by the
11 “claimant
12
Mr. Lowrey’s conclusory, self-
13 serving assertions to the contrary
lack foundation, conflict with
14 FNTC’s procedures with other liens
managed in this transaction, and
15 should be disregarded.
16 Lowrey Decl., ¶ 15, p.6:8- .26 PROFFERED TESTIMONY ____ SUSTAINED

10. “FNTC does not offer IS DIRECTLY CONTRADICTED
17 the demands as evidence of BY DECLARANT’S ____ OVERRULED
their truth of the matters set SUPERVISOR RICK STINE IN
18 forth therein, but instead CONTEMPORANEOUS E-MAIL
offers them as evidence of TO FNTIC UNDERWRITING
19 receipt of the demands for COUNSEL SCOTT FALLAR.
payment for the work This testimony is directly
20 allegedly done and contradicted by a contemporaneous
represented by mechanic's e-mail from R. Stine to S. Fallar
21 liens items 12 and 14 and/or dated April 20, 2016, wherein Stine,
the assignments thereof.” Mr. Lowrey’s supervisor and
22 FNTC’s Senior Vice President
responsible for the Sherman Oaks
23 office, stated: “the good news is the
[2 mechanic’s liens] are over 90 days
24 old and there has been no action to
enforce the liens. My concern is the
25
26 PAGE 23
1 claimant has supplied demands.”
See R. Mathias Decl., Exh. ___ [e-
2 mail from R. Stine to S. Fallar, April
20, 2016, FNT01660 – FNT01662]
3 Lowrey’s contrary testimony
should be disregarded because the
4 communication from Stine is from a
senior officer of the company. It
5 confirms that FNTC determined that
the two liens were legally
6 unenforceable (because they were
more than 90 days old and no
7 enforcement actions had been filed)
and thus they could have easily been
8 removed as items of record title. But
Stine’s comment also confirms that
9 FNTC determined, albeit
erroneously, that “the claimant has
10 supplied demands.”
Plaintiff repeatedly informed
11 FNTC that the person making the
demand for payment, supposedly
12 “Kathryn Lauer”, was not the actual
lien claimant on either of the two
13 mechanic’s liens. Nor was she the
“assignee” of either lien. Instead, the
14 two escrow demands for payment
were each signed by “Jeff Allan”, on
15 behalf of “Glendale Acceptance,
LLC.” Kathryn Lauer’s name
16 appeared nowhere on either demand.
Despite Plaintiff’s repeated
17 written directions to FNTC to
authenticate and validate the
18 demands (which was FNTC’s
obligation as the title company and
19 the sub-escrow funding agent), and
despite his written memo detailing
20 the specific fraudulent elements of
each claim, and despite the fact that
21 “Jeff Allan”, whose true name is Jeff
Allan McCoon, was sitting in a
22 Colorado state prison cell on April 5,
2016, when “he” purportedly signed
23 the fraudulent escrow payment
demands, FNTC still determined, as
24 Stine directly communicated to
underwriting counsel Fallar, that the
25
26 PAGE 24
1 legal lien claimants had “submitted
demands” for payment that were
2 “legitimate,” thereby serving as the
basis for requiring the Indemnity
3 Agreement in the first place.
The quoted portion of Lowrey’s
4 testimony in this regard is conclusory
and self-serving fancy word smithing
5 that is factually contradicted by his
own supervisor. It should, therefore,
6 be disregarded.
7 26. THE PROFFERED

TESTIMONY LACKS
8 FOUNDATION AND IS DIRECT
CONFLICT WITH THE
9 INDEMNITY AGREEMENT ____ SUSTAINED
ITSELF. As stated above, Lowrey
10 was not the senior executive calling ____ OVERRULED
the shots here. Rather, based on the
11 limited documents produced by
FNTC, it would appear that Rick
12 Stine was the senior-most officer
who states, in writing, that he
13 “agreed to” hold the secured
indemnity. Thus, Lowrey’s
14 testimony on the issues of the
Indemnity Agreement and FNTC’s
15 gross failure to properly manage
what should have been a no-brainer
16 (discarding the stale fraudulent liens
Stine admitted were unenforceable
17 anyway) must be disregarded for lack
of proper foundation. He was not the
18 decision maker and has no
competence – as established through
19 inclusion of admissible factual
foundation – to proffer any evidence
20 as to FNTC’s actual decisions in this
transaction.
21 Moreover, Lowrey’s testimony
here is really quite absurd and self-
22 evidently refuted by the insistence of
Stine and Fallar that plaintiff sign the
23 Indemnity Agreement as it was
presented, without a single revision
24 or change. The only reason we are
here in litigation is precisely because
25
26 PAGE 25
1 FNTC/FNTIC actually did make a
determination that the two liens were
2 valid, that they would be enforced by
FNTC / FNTIC, and that the legal
3 lien “claimant ha[d] supplied
demands” for payment. If that were
4 not the case, Stine would not have
said so in his e-mail to underwriting
5 and FNTC/FNTIC would never have
demanded that plaintiff sign the
6 Indemnity Agreement and fork over
half his net proceeds from the sale at
7 closing.
8 27. THE PROFFERED

9 CONFLICT WITH THE ____ SUSTAINED
ACTUAL PROCESS AND
10 PROCEDURES FNTC USED ____ OVERRULED
WHEN IT DECIDED TO
11 REMOVE AND CORRECT
OTHER “EXCEPTIONS” THAT
12 WERE ORIGINALLY
CONTAINED IN THE
13 PRELIMINARY REPORT
DURING THE ESCROW
14 PROCESS. This quoted portion of
Lowrey’s Declaration should be
15 disregarded for the additional reason
that it is simply inconsistent with the
16 actions FNTC staff took with regard
to other “exceptions” and items
17 removed from early draft versions of
the Preliminary Report.
18 Lowrey can’t have it both ways.
FNTC is in the title clearance
19 business. During escrows it
evaluates and analyzes deeds, liens,
20 claimants, and payments made and
those not made. In the subject
21 transaction, FNTC evaluated various
liens and exceptions over the course
22 of a five-week escrow. FNTC
removed the Tax Lien as an
23 exception because FNTC believed
the LA County Release certificate
24 was legitimate credible evidence that
the bill had been paid.
25
26 PAGE 26
1 And with respect to Items 12 and
14, FNTC decided that the lien
2 claimants made a demand for
payment. That is exactly what Stine
3 told underwriting in his April 20,
2016, e-mail to Scott Fallar. He said:
4 “my concern is the claimant has
supplied demands.” R. Mathias
5 Decl., Exh.___.
That is a determination conferring
6 credibility and belief in the veracity
and truth of those payment demands.
7 Stine should have been concerned
about the blatant extrinsic obvious
8 fraud being perpetrated. How many
more pages of memos and sworn
9 declarations did he want from the
plaintiff before he believed the
10 obvious? It does not take a rocket
scientist to know that “Glendale
11 Acceptance, LLC” cannot dismiss a
lawsuit against “K.O Remodeling,
12 Inc., dba The House Next Door”
when no lawsuit exists in which The
13 House Next Door is a party.
(Remember, Stine said no actions
14 were filed to enforce the liens).
But it gets better. “Jeff Allan”
15 represents in his “Demand” for
payment that “Glendale Acceptance
16 LLC” will dismiss the lawsuit it
brought on behalf of “The House
17 Next Door” in exchange for payment
of the KOR-1 Lien. He even gives
18 you the case citation of 15K03575 as
the lawsuit he tells you he will
19 dismiss. The only problem, well –
case 15K03575 was not filed by
20 Glendale Acceptance, LLC, or “Jeff
Allan” and the KOR-1 Lien is not the
21 subject matter of that lawsuit and
The House Next Door is not even a
22 party. And Stine knew all of that
(and was reminded again by e-mail
23 from plaintiff dated April 25, 2016),
R. Mathias Decl., ¶ __ & Exh __.
24 But it gets better. Here’s the real
shocker; some material facts that Mr.
25
26 PAGE 27
1 Lowrey conveniently left out of his
declaration because they reveal the
2 true absurdity of his testimony that
FNTC made no assessment of the
3 veracity of the two Escrow Demands
from “Jeff Allan.”
4 What Lowrey didn’t tell you was
that on April 13, 2016, plaintiff sent
5 FNTC a copy of a notarized Release
of Lien dated April 11, 2016,
6 releasing the KOR-1 Lien, the one
identified as Item 14 on the operative
7 Preliminary Report. R. Mathias
Decl., ¶ ___ and Exh. ___
8 [FNT01019]. The Release, as
produced by FNTC in discovery in
9 this litigation, bore a conformed
Duplicate stamp from the Los
10 Angeles County Recorder’s Office
indicating that the original had been
11 submitted for recording. Id. [FNT
01019].
12 Two days later, on April 15,
2016, Cindy Garcia of Encore
13 Escrow sent an e-mail to “Jeff Allan”
in which she confirmed receipt of
14 Glendale Acceptance LLC’s April 5,
2016, Escrow Payment Demands,
15 and advised him that escrow had
received a notarized Release of he
16 KOR-1 Lien. R. Mathias Decl., ¶ __,
Exh. __. Garcia included a copy of
17 the release plaintiff had delivere to
FNTC. In her e-mail she specifically
18 asked “Jeff Allan” whether that Lien
Release had been recorded and
19 whether there was any balance due
on the KOR-1 Lien in view of the
20 signed Release. R. Mathias Decl., ¶
__, Exh. __.
21 By e-mail of the same date, April
15, 2016, “Jeff Allan” replied that
22 the KOR-1 Lien Release “is with the
courier for recording, but has no
23 effect on demand we have
submitted.” R. Mathias Decl., ¶ __,
24 Exh. __.
25
26 PAGE 28
1 One is left to wonder what more
obvious evidence of fraud there
2 could be when the purported “lien
claimant” is telling you that the
3 recorded release of his mechanic’s
lien “has no effect on his demand”
4 for payment of that very same
mechanic’s lien.
5
6
7 RULE. (Evid. Code § 1521). ____ SUSTAINED
Lowrey’s summary and conclusory
8 statement about FNTC not offering ____ OVERRULED
the two early payment demands for
9 the truth or correctness of their
content is also inadmissible under the
10 secondary evidence rule. Mr. Stine’s
April 19, 2016, e-mail confirming his
11 knowledge that the two liens were
legally invalid and expressing as his
12 only concern the fact that he believed
a legitimate claimant was making
13 payment demands is the most
competent, credible evidence on this
14 point. Lowrey’s contrary
assumptions are inadmissible as
15 secondary evidence.
16 Lowrey Decl., ¶ 16, p.6:11- 29. SECONDARY EVIDENCE ____ SUSTAINED

16. “In early April 2016, RULE. (Evid. Code § 1521). This
17 prior to the close of the entire sentence is an objectionable ____ OVERRULED
Purchase Transaction, FNTC mischaracterization of the actual
18 was also advised by Mathias communication that Mathias sent to
of the existence of a Los FNTC/FNTIC, which
19 Angeles Superior Court communication was made via written
action which had been filed e-mail dated April 8, 2016. That
20 by Kathryn Lauer dba document is the best evidence of the
Glendale Acceptance against complete and correct information
21 Richard J. Mathias et al., Los that Mathias communicated to
Angeles Superior Court Case Fidelity. See Exhibit ___ to the
22 No. 15K03575, in which Mathias Declaration. The quoted
Kathryn Lauer sought to testimony of Mr. Lowrey should be
23 enforce against the Subject completely disregarded as secondary
Property, her claimed interest evidence of the actual content of the
24 in and to item # 12 on the April 8, 2016, e-mail legal
preliminary report, as the memorandum; Save for the one fact
25
26 PAGE 29
1 purported assignee of the that he confirms: that FNTC/FNTIC
mechanic's lien. ("Lauer received the April 8, 2016, e-mail
2 Enforcement Action".) and its attachments. ____ SUSTAINED
3 30 LOWREY IDENTIFIES THE ____ OVERRULED

WRONG MECHANIC’S LIEN
4 LAUER SOUGHT TO ENFORCE
IN HER LAWSUIT
5 Lowrey deliberately mis-states
the identity of the actual mechanic’s
6 lien Lauer sought to enforce by way
of her 2015 lawsuit. The only lien
7 identified in Lauer’s Original
Complaint is the RCI-1 Lien, LA
8 Record Number 20150117427. See
Fidelity’s RJN at Exh. 15, p.2:24-26
9 (“plaintiff’s assignor filed its
mechanic’s lien with the Los Angeles
10 County Recorder, for a fee of $27
and bearing a document number of
11 20150117427.”). Item #12 on the
Preliminary Report is a completely
12 different mechanic’s lien – it is the
RCI-2 Lien, LA Record Number
13 20150944174. See Preliminary
Report, Exh. B to Lowrey’s
14 declaration, at p.6 [FNT00153].
The actual documents
15 unambiguously prove that Lowrey’s
statement is absolutely false, and it
16 should, therefore, be disregarded.
17 31 THE QUOTED TESTIMONY

OF MR. LOWREY
18 IMPROPERLY ATTEMPTS TO
DESCRIBE THE LEGAL
19 PURPOSES AND EFFECTS OF ____ SUSTAINED
LAUER’S MAY 2015 CIVIL
20 COMPLAINT AGAINST ____ OVERRULED
MATHIAS, WHICH
21 CONSTITUTES AN IMPROPER
LEGAL CONCLUSION BY AN
22 INCOMPETENT WITNESS
WITHOUT FOUNDATION.
23 The second portion of the quoted
testimony should be disregarded as
24 inadmissible because Lowrey never
lays foundation that he ever read the
25
26 PAGE 30
1 civil complaint filed by Lauer, much
less which version of the four she
2 filed; he is not competent to express
a legal opinion about the contents or
3 legal significance of the litigation
pleadings.
4 The fact that Lowrey has
deliberately mis-stated the true
5 identity of the mechanic’s lien that
Lauer was seeking to enforce in her
6 operative complaint in Case K03575,
this court should completely
7 disregard his entire testimony.
8 ``
10
Lowrey Decl., ¶ 17, p.6:17- 32. LACK OF COMPETENCE
11 19. “FNTC could not close TO PROFFER THIS EVIDENCE
the Purchase Transaction and AND NO FOUNDATION. As
12 issue a policy of title demonstrated above in objections __
insurance to the buyer, through __, Roger Lowrey was not ____ SUSTAINED
13 Morales, insuring his title the FNTC/FNTIC officer who made
free and clear of the two the final decision to require the ____ OVERRULED
14 mechanic's liens, without the plaintiff to sign the Indemnity
two mechanic's liens either Agreement and fork over $54,000 of
15 being paid or otherwise his sales proceeds to FNTC as the
released as matters of record condition for closing escrow. That
16 title.” decision was, according to his own e-
mail dated April 20, 2016, made by
17 Rick Stine, senior Vice President and
Director of Operations. R. Mathias
18 Decl., ¶ __ and Exh. __.
This statement by Lowrey is,
19 therefore, not within his personal
knowledge because he did not make
20 the decision. And Lowrey fails to
offer any foundation or support for
21 this statement.
22 33 THE PROFFERED
23 CONFLICT WITH THE
ACTUAL PROCESS AND ____ SUSTAINED
24 PROCEDURES FNTC/FNTIC
EMPLOYED IN THIS
25
26 PAGE 31
1 TRANSACTION WHEN ____ OVERRULED
DEFENDANTS EXERCISED
2 THEIR INHERENT
AUTHORITY TO ELIMINATE
3 WHATEVER LIEN IT DECIDED
TO AS A MATTER OF RECORD
4 This quoted portion of Lowrey’s
Declaration should be disregarded
5 for the additional reason that it is
simply inconsistent with the actions
6 FNTC staff took with regard to other
“exceptions” and items removed
7 from early draft versions of the
Preliminary Report.
8 Defendants made clear
throughout this process that
9 FNTC/FNTIC had the ability and
authority to remove any lien it
10 wanted to as a matter of record title
and they could have easily closed
11 this transaction and written the
Owner’s Title Policy Without
12 excepting the two mechanic’s Liens
in issue. See Objections ___ above
13 (illustrating defendants’ authority to
remove two other liens in their own
14 discretion).
Instead of removing the two
15 mechanic’s liens that Mr. Stine knew
were invalid as matters of record,
16 defendants insisted on keeping up the
illusion that they were “clouds” on
17 title. And then, even after plaintiff
obtained explicit releases of all liens
18 and secured court release of lien
orders under Civil Code section
19 8480, defendants still refused to
return his security deposit.
20 It is clear that FNTC/FNTIC
could have closed the transaction in
21 issue without the liens being paid or
otherwise released, they just chose
22 not to.
Lowrey can’t have it both ways.
23 FNTC is in the title clearance
business. During escrows, it
24 evaluates and analyzes deeds, liens,
claimants, and payments made and
25
26 PAGE 32
1 those not made. In the subject
transaction, FNTC evaluated various
2 liens and exceptions over the course
of a five-week escrow. FNTC
3 removed the Tax Lien as an
exception because FNTC believed
4 the LA County Release certificate
was legitimate credible evidence that
5 the bill had been paid.
And with respect to Items 12 and
6 14, FNTC decided that it would
deem the liens enforceable and
7 would consider the two Glendale
Acceptance payment demands as
8 legitimate claims for payment. That
is the decision Stine made. See R.
9 Mathias Decl., ¶ ___ & Exh. __.
10 34. CONCLUSORY. A ____ SUSTAINED

declaration which sets forth only
11 conclusions, opinions or, ultimate ____ OVERRULED
facts is insufficient because
12 conclusory statements are not
admissible facts. Kramer v. Barnes
13 (1963) 212 Cal.App.2d 440, 446.
14
15
16
17 Lowrey Decl., ¶ 18, p.6:20- 35. THIS STATEMENT IS ____ SUSTAINED

21. “FNTC was not made COMPLETELY FALSE.
18 aware that Mathias had read, Lowrey’s statement to the effect that ____ OVERRULED
approved and signed the Mathias had “read, approved, and
19 ‘Escrow Demands’" signed” the two payment demands is
absolutely false and, quite frankly,
20 sanctionable perjury. Plaintiff never
signed off on or approved paying
21 these two liens through escrow or
otherwise. See R. Mathias Decl., ¶
22 __. If he had, the Indemnity
Agreement would never have been
23 an issue and this litigation would
never have been filed. As made clear
24 throughout the record, plaintiff’s
position was that the payment
25
26 PAGE 33
1 demands were fraudulent and invalid.
R. Mathias Decl., ¶ __ & Exhs. __.
2
3 Lowrey Decl., ¶ 18, p.6:20- 36 LACKS FOUNDATION. The ____ SUSTAINED

21. “[FNTC was made aware declarant never provides any
4 that Mathias believed the foundation for his testimony and thus ____ OVERRULED
‘Escrow Demands’ to be does not furnish any necessary
5 fraudulent and further, that foundation establishing his personal
he requested that Encore knowledge of facts upon which this
6 Escrow further authenticate statement is based.
the payment demands and
7 reject payment unless and 37 THE PROFFERED
until they were properly STATEMENT RELIES UPON
8 authenticated and validated.” INADMISSIBLE HEARSAY. In ____ SUSTAINED
every respect, this statement is based
9 on hearsay not within any recognized ____ OVERRULED
exception, because it is expressing
10 facts allegedly communicated to
FIDELITY by a third-party – a
11 communication purportedly made to
“FIDELITY” outside of the
12 courtroom by someone other than the
declarant. And it is being offered to
13 establish the truth of the matters
being asserted bevents and dates
14 being asserted. Cal. Evid. § 1200. If
this statement is not being offered for
15 the truth of the matters asserted, then
it should be held inadmissible on
16 relevance grounds.
17 38. SECONDARY EVIDENCE

RULE. (Evid. Code § 1521) The
18 quoted testimony is but one of ____ SUSTAINED
numerous attempts by this witness to
19 “summarize”, “characterize,” ____ OVERRULED
“qualify,” and otherwise manipulate
20 the facts of this case in a manner that
he believes suits his best interests in
21 purporting to summarize the content
of a written document. His vague
22 reference and description of what
plaintiff allegedly communicated to
23 defendants is secondary to the actual
communication itself, which is
24 plaintiff’s April 8, 2016, e-mail
directed to both Encore Escrow and
25
26 PAGE 34
1 defendants. See R. Mathias Decl., ¶
__ & Exhs. __.
2 Plaintiff respectfully urges this
Court to admit into evidence the
3 entire April 8, 2016, e-mail to
defendants and disregard Mr.
4 Lowrey’s proffered summary
description.
5
6 Lowrey Decl., ¶ 19, p.6:24 39 DECLARANT HAS NO ____ SUSTAINED

p.7:4. In order to close the PERSONAL KNOWLEDGE AND
7 Purchase Transaction without LACKS FOUNDATION. As stated ____ OVERRULED
the mechanic's liens above in Objections ___, Lowrey
8 appearing as exceptions from lacks both sufficient personal
coverage in the anticipated knowledge of the final details of this
9 policy of title insurance to be transaction and corporate capacity to
issued in favor of the buyer, allow him to proffer competent
10 Morales, on April 25, 2016, testimony on the content of the
Mathias agreed to the terms contract, and he fails to offer any
11 of, and executed, an foundational facts sufficient to
Indemnity and Security establish the basis of his assertions.
12 Agreement with Deposit To be admissible in evidence, the
("Indemnity Agreement") proponent or witness must have
13 pursuant to which, inter alia, personal knowledge of the facts
FNTC would hold back being stated. Cal. Evid. Code §§
14 $54,000.00 of Mathias' seller 702, 801. Moreover, declarant fails
proceeds pursuant to the to lay foundation with regard to
15 terms of the Indemnity whatever sources of information he
Agreement to cover any relied upon in making up the
16 future loss or obligation on statement being offered.
the two liens. A true, correct The e-mail exchange between
17 and complete copy of the Messrs. Stine and Fallar establish
Indemnity Agreement is that the final decision to require the
18 attached hereto as Exhibit Indemnity Agreement was not made
"D" and incorporated herein by Mr. Lowrey – in fact, he was not
19 by reference. The Indemnity even involved in the discussion. See
Agreement enabled FNTC to R. Mathias Decl., ¶ __ & Exhs. __.
20 close the Purchase Perhaps that is why Lowrey failed to
Transaction without provide the Court with a complete
21 identifying items 12 and 14 copy of the Indemnity Agreement in
as exceptions to coverage in dispute.
22 the buyer's policy of title Lack of personal knowledge and
insurance.” lack of foundation preclude
23 admissibility of this proffered
testimony.
24
25
26 PAGE 35
1 40. LOWREY ATTACHES AN ____ SUSTAINED
INCOMPLETE COPY OF THE
2 INDEMNITY AGREEMENT, ____ OVERRULED
THEREBY PRECLUDING
3 JUDICIAL REVIEW OF THE
CONTRACT CLAIM.
4 As confirmed by plaintiff and
Fidelity’s trial counsel in this action,
5 David Bartelstone, during plaintiff’s
deposition on October 6, 2017, the
6 “Indemnity Agreement” in issue
before the Court, as pleaded in the
7 First Amended Complaint, is a four-
page document. R. Mathias Depo.,
8 Vol. I, p.105 & Exh. 8 [attached to
the R. Mathias Declaration at Exhibit
9 __.]. The first page bears the title
“Indemnity and Security Agreement
10 (With Deposit), and that is a three-
page document. The Fourth Page is
11 titled “Authorization.” Together, all
four pages represent the written
12 contract plaintiff pleaded in this
action as the “Indemnity Agreement”
13 which plaintiff contends was
breached by the defendants. See
14 First Amended Complaint, ¶ ___.
Mr. Lowrey states in the quoted
15 portion of his declaration that he
attached a true, correct, and complete
16 copy of the Indemnity Agreement as
Exhibit D to his Declaration.
17 However, Exhibit D only includes
the first three pages, and omits the
18 fourth page of the complete written
contract, the page entitled
19 “Authorization.” As a result, Lowrey
did not provide the Court with a
20 complete version of the Agreement
in issue here.
21 It is a fundamental requirement
of CCP section 437c(p) that applies
22 to every motion for summary
judgment brought by a defendant – it
23 is called the initial burden of
production of admissible evidence
24 sufficient to demonstrate that the
plaintiff lacks evidence sufficient to
25
26 PAGE 36
1 prevail at trial. Cal. Code Civ. Proc.
§ 437c(p)(1)–(2); Aguilar v. Atlantic
2 Richfield Co. (2001) 25 Cal.4th 826,
850. As the Supreme Court made
3 clear in Aguilar, a moving defendant
is required to produce admissible
4 evidence first, to make a sufficient
showing of facts demonstrating the
5 nonexistence of any triable issue of
material fact as to the elements of the
6 claims pleaded in the complaint.
Only then, upon the satisfactory
7 production of admissible evidence,
does the burden shift to the
8 responding plaintiff to produce
admissible evidence sufficient to
9 raise a triable issue. Teselle v.
McLoughlin (2009) 173 Cal. App. 4th
10 156.
Here, moving defendants have
11 failed in every respect to meet their
initial burden of production – by
12 failing to even offer a complete
version of the written contract in
13 dispute as alleged in the First
Amended Complaint. As such, under
14 Aguilar, plaintiff has no affirmative
obligation to offer any evidence in
15 this matter because the burden of
production never shifts.
16 ____ SUSTAINED
41. INADMISSIBLE HEARSAY.
17 In every respect, this statement is ____ OVERRULED
based on hearsay, because it is
18 expressing legal conclusions based
on documents and facts neither
19 identified nor presented to the Court.
20 42. DECLARANT IS OFFERING ____ SUSTAINED

INADMISSIBLE LEGAL
21 CONCLUSIONS. Lowrey’s ____ OVERRULED
statement that “plaintiff agreed to”
22 and “executed” an Indemnity
Agreement . . . “pursuant to which . .
23 .” is all objectionable legal
conclusions. All of his
24 characterizations are impermissible
25
26 PAGE 37
1 expressions of legal conclusions that
are not admissible as evidence.
2
43 SECONDARY EVIDENCE
3 RULE. (Evid. Code § 1521) The
quoted testimony is but one of
4 numerous attempts by this witness to
“summarize”, “characterize,”
5 “qualify,” and otherwise manipulate ____ SUSTAINED
the facts of this case in a manner that
6 he believes suits his best interests in ____ OVERRULED
purporting to summarize the content
7 of the actual written contract, which
he even fails to completely attach to
8 his declaration. His vague reference
and description of what plaintiff
9 allegedly agreed to and how the
contract was necessary to close the
10 escrow is secondary evidence to the
written contract itself.
Court to disregard this portion of
12 Lowrey’s declaration and not admit
into evidence the three pages offered
13 at Exhibit D because that document
is not a complete copy of the entire
14 contract in dispute.
15 Lowrey Decl., ¶ 20, p.7:5-8. 44. DECLARANT HAS NO ____ SUSTAINED

“The Indemnity Agreement PERSONAL KNOWLEDGE AND
16 and the funds held pursuant LACKS FOUNDATION. As stated ____ OVERRULED
thereto, provided FNTC and above in Objections ___, Lowrey
17 FNTIC, the underwriter, lacks both sufficient personal
issuing the policy of title knowledge of the final details of this
18 insurance, protection in the transaction and corporate capacity
event that the liens could not authority to allow him to proffer
19 be cleared of record title, competent testimony on the content
needed to be paid, or of the final contract, and he fails to
20 someone attempted to offer any foundational facts
enforce the liens against the sufficient to establish the basis of his
21 Subject Property and its assertions. To be admissible in
insured buyer, Morales.” evidence, the proponent or witness
22 must have personal knowledge of the
facts being stated. Cal. Evid. Code
23 §§ 702, 801. Moreover, declarant
fails to lay foundation with regard to
24 whatever sources of information he
25
26 PAGE 38
1 relied upon in making up the
statement being offered.
2 The e-mail exchange between
Messrs. Stine and Fallar establish
3 that the final decision to require the
Indemnity Agreement was not made
4 by Mr. Lowrey – in fact, he was not
even involved in the discussion. See
5 R. Mathias Decl., ¶ __ & Exhs. __.
Lack of personal knowledge and
6 lack of foundation preclude
admissibility of this proffered
7 testimony.
8 45 LOWREY ATTACHES AN ____ SUSTAINED

INCOMPLETE COPY OF THE
9 INDEMNITY AGREEMENT, ____ OVERRULED
THEREBY PRECLUDING
10 JUDICIAL REVIEW OF THE
CONTRACT CLAIM.
11 As stated above in more detail in
Objection __, Mr. Lowrey did not
12 attach a complete copy of the entire
contract in dispute. Thus, plaintiff
13 objects to the admission of any
testimony from this witness
14 pertaining the written contract
because it is unclear that he is even
15 discussing the correct, complete
agreement.
16 ____ SUSTAINED
46. INADMISSIBLE HEARSAY.
17 In every respect, this statement is ____ OVERRULED
based on hearsay, because it is
18 expressing legal conclusions based
on documents and facts neither
19 identified nor presented to the Court.
20 47. DECLARANT IS OFFERING ____ SUSTAINED

INADMISSIBLE LEGAL
21 CONCLUSIONS. Lowrey’s ____ OVERRULED
statements here are legal conclusions
22 about the impact of the agreement.
All of his characterizations are
23 impermissible expressions of legal
conclusions that are not admissible as
24 evidence.
25
26 PAGE 39
1
3 ____ SUSTAINED
4 RULE. (Evid. Code § 1521) The ____ OVERRULED
6 “qualify,” and otherwise manipulate
7 he believes suits his best interests in
8 of the actual written contract, which
he even fails to completely attach to
9 his declaration. His vague reference
and description of what the
10 Indemnity Agreement provided for,
how it protected Fidelity from X, Y,
11 or Z, all those assertions are
inadmissible secondary evidence of
12 the actual content of the entire
written contract itself.
14 Lowrey’s declaration because it is
secondary evidence of the actual
15 contract itself.
16 Lowrey Decl., ¶ 21, p.7:14- 49 DECLARANT HAS NO ____ SUSTAINED

17. “Because of the PERSONAL KNOWLEDGE AND
17 Indemnity Agreement, the LACKS FOUNDATION. As stated ____ OVERRULED
Policy issued in favor of above in Objections ___, Lowrey
18 Morales did not include lacks both sufficient personal
either of the two knowledge of the final details of this
19 aforementioned mechanic's transaction and corporate capacity
liens, or the assignments authority to allow him to proffer
20 related thereto, as exceptions competent testimony on the content
to Morales' insured title in of the final contract, and he fails to
21 and to the Subject Property.” offer any foundational facts
sufficient to establish the basis of his
22 assertions. To be admissible in
evidence, the proponent or witness
23 must have personal knowledge of the
facts being stated. Cal. Evid. Code
24 §§ 702, 801. Moreover, declarant
fails to lay foundation with regard to
25
26 PAGE 40
1 whatever sources of information he
relied upon in making up the
2 statement being offered.
The e-mail exchange between
3 Messrs. Stine and Fallar establish
that the final decision to require the
4 Indemnity Agreement was not made
by Mr. Lowrey – in fact, he was not
5 even involved in the discussion. See
R. Mathias Decl., ¶ __ & Exhs. __.
6 Lack of personal knowledge and
lack of foundation preclude
7 admissibility of this proffered
testimony.
8
50. LOWREY ATTACHES AN
9 INCOMPLETE COPY OF THE ____ SUSTAINED
INDEMNITY AGREEMENT,
10 THEREBY PRECLUDING ____ OVERRULED
JUDICIAL REVIEW OF THE
11 CONTRACT CLAIM.
As stated above in more detail in
12 Objection __, Mr. Lowrey did not
attach a complete copy of the entire
13 contract in dispute. Thus, plaintiff
objects to the admission of any
14 testimony from this witness
pertaining the written contract or its
15 alleged effects because it is unclear
that he is even discussing the correct,
16 complete agreement.
17 51 INADMISSIBLE HEARSAY.
In every respect, this statement is
18 based on hearsay, because it is ____ SUSTAINED
expressing legal conclusions based
19 on documents and facts neither ____ OVERRULED
identified nor presented to the Court.
20
21 RULE. (Evid. Code § 1521) The
23 “qualify,” and otherwise manipulate ____ SUSTAINED
24 he believes suits his best interests in ____ OVERRULED
25
26 PAGE 41
1 or effect of the actual written
contract, which he even fails to
2 completely attach to his declaration.
His vague reference and description
3 of what the Indemnity Agreement
provided for, how it protected
4 Fidelity from X, Y, or Z, all those
assertions are inadmissible secondary
5 evidence of the actual content of the
entire written contract itself.
7 Lowrey’s declaration because it is
secondary evidence of the actual
8 contract itself.
9 53. DECLARANT IS OFFERING

INADMISSIBLE LEGAL
10 CONCLUSIONS. Lowrey’s ____ SUSTAINED
statement purporting to assess,
11 summarize, and otherwise ____ OVERRULED
characterize the legal meaning of or
12 effect of the contract is inadmissible
because it constitutes impermissible
13 expression of a legal conclusion that
is not admissible as evidence. Ware v
14 Stafford (1962) 206 Cal.App.2d
232; Tri-State Mfg. Co. v Superior
15 Court (1964) 224 Cal.App.2d 442,
445 (a declaration that states only
16 the conclusions or opinions of the
declarant is insufficient).
17
18
19 Lowrey Decl., ¶ 23, p.7:22- 54 DECLARANT HAS NO ____ SUSTAINED

27. “Once the Purchase PERSONAL KNOWLEDGE AND
20 Transaction closed and LACKS FOUNDATION. ____ OVERRULED
FNTC, among other things, Lowrey’s statement here to the affect
21 caused the recording of the that FNTC and his “involvement
closing documents, issued the with Mathias, the purchase
22 Policy in favor of the buyer, transaction, and the Indemnity
Morales, disbursed the funds Agreement effectively ended” should
23 it was holding (with the be disregarded on basic evidentiary
exception of the Security grounds – as demonstrated above in
24 Deposit), both FNTC's and Objections ___, Mr. Lowrey did not
my, involvement with participate in the final executive
25
26 PAGE 42
1 Mathias, the Purchase management-level decision regarding
Transaction and the the contract in issue or the decision
2 Indemnity Agreement to retain the two mechanic’s liens as
effectively ended. All future purported “exceptions” to clear title
3 decision-making regarding when senior management knew the
when to release the Security liens were legally unenforceable and
4 Deposit was left to FNTIC, invalid. Those decisions have the
the insurer of the Policy fingerprints of Lowrey’s supervising
5 issued to Morales.” officer Rick Stine, defendants’
senior-most officer – Senior Vice
6 President and Director of Operations
for all of Los Angeles County. See
7 Objections __ above; R. Mathias
Decl., ¶ __ & Exhs. __.
8 Not only does Lowrey lack
personal knowledge of these precise
9 issues, something we know because
he fails to specifically furnish facts
10 establishing his personal knowledge
as required by CCP section 437c(d),
11 he also does not provide any
evidence that he has the authority or
12 competence to make pronouncements
about corporate decision-making at
13 FNTC or FNTIC. No competence,
no evidence of corporate authority or
14 capacity - also render his statement
inadmissible.
15 Lowrey also fails to allege basic
factual foundation demonstrating any
16 support for the admissibility of these
conclusory statements. As such, the
17 quoted allegation should be held
inadmissible.
18
55 THE PROFFERED
19 EVIDENCE SHOULD BE ____ SUSTAINED
EXCLUDED BECAUSE IT IS
20 CONTRARY TO DEFENDANTS’ ____ OVERRULED
WRITTEN POLICIES &
21 PROCEDURES APPLICABLE
TO FIDELITY’S INTERNAL
22 PROCESS FOR MANAGING
SECURED INDEMNITY
23 CONTRACTS. During the
discovery phase of this case, plaintiff
24 requested that defendants produce
their policies and procedures
25
26 PAGE 43
1 applicable to various particular
phases of the defendants’ business
2 practices. Defense counsel objected
and, despite the obvious relevance of
3 the content of those procedures,
refused to produce them.
4 Consequently, plaintiff went about
locating those policies and
5 procedures documents through
independent sources. R. Mathias
6 Decl., ¶ __ & Exhs. __.
Plaintiff discovered that
7 FNTC/FNTIC have express policies
and procedures for managing secured
8 indemnity contracts like the one
plaintiff signed, where deposits are
9 being held by Fidelity to clear
specific mechanic’s liens. R.
10 Mathias Decl., ¶ __ & Exhs. __.
Under their policies and practices,
11 the local title office that issued the
title policy is responsible for local
12 monitoring of post-closing activities
that relate to the releases of those
13 liens and other conditions that impact
when Fidelity is able to confirm to its
14 satisfaction that the liens specified in
a particular indemnity agreement
15 have been released. R. Mathias
Decl., ¶ __ & Exhs. __.
16 Under defendants’ policies and
procedures manual, the responsible
17 official is the Title Manager of the
local office. R. Mathias Decl., ¶ __
18 & Exhs. __. In the subject
transaction, that person was Roger
19 Lowrey. R. Mathias Decl., ¶ __ &
Exhs. __.
20 On May 19, 2016, plaintiff
telephoned the local Sherman Oaks
21 Office of FNTC to deliver final
conformed copies of all lien releases
22 and a court order confirming Kathryn
Lauer as a Vexatious Litigant in the
23 related litigation. R. Mathias Decl., ¶
__ & Exhs. __. Prior to personally
24 driving to that office, plaintiff called
ahead and spoke to the office
25
26 PAGE 44
1 reception staff. Plaintiff learned that
the officer he need to see to
2 communicate the status of the post
closing lien release was Roger
3 Lowrey, Title Manager. R. Mathias
Decl., ¶ __ & Exhs. __.
4 When plaintiff personally
traveled to the Sherman Oaks Office
5 of Fidelity National Title on May 20,
2016, he presented himself to the
6 receptionist and was again advised
that Mr. Lowrey was the officer
7 responsible for managing the
company’s compliance with the
8 secured indemnity agreement post-
closing. R. Mathias Decl., ¶ __ &
9 Exhs. __.
Plaintiff personally met Roger
10 Lowrey for the first time during this
brief May 20, 2016, meeting and Mr.
11 Lowrey confirmed that he was the
title manager responsible for
12 confirming FNTC’s compliance with
the Secured Indemnity Agreement in
13 issue before this Court. R. Mathias
Decl., ¶ __ & Exhs. __.
14 Plaintiff personally delivered to
Mr. Lowrey certified conformed
15 copies of three lien releases,
including the Release of the RCI-1
16 Lien recorded on May 9, 2016, and a
second Release of the KOR-1 Lien.
17 This one recorded on May 16, 2016,
which duplicated the original release
18 of the KOR-1 Lien that had already
been recorded on the same date that
19 escrow closed on April 27, 2016. R.
Mathias Decl., ¶ __ & Exhs. __.
20 During this meeting, plaintiff
specifically requested of Mr. Lowrey
21 that FNRC/FNTIC review the
Releases and promptly return his
22 security deposit. R. Mathias Decl., ¶
__ & Exhs. __.
23 It is indeed ironic that Mr.
Lowrey offers testimony on subjects
24 about which only Mr. Stine, his boss,
has personal knowledge or authority
25
26 PAGE 45
1 to testify. But on the subject of post-
closing compliance with the
2 Indemnity Agreement, one issue that
both company policy and practice
3 and his own personal meeting with
plaintiff on May 20, 2016, confirmed
4 his role as Fidelity’s responsible
local Officer, Roger Lowrey directly
5 represents to the Court, under oath,
he was “effectively” no longer
6 involved.
7 56. SECONDARY EVIDENCE

RULE. (Evid. Code § 1521). As
8 confirmed above in Objections ___, ____ SUSTAINED
defendants’ written policies and
9 procedures provide that defendants’ ____ OVERRULED
Sherman Oaks Office Title Manager
10 Roger Lowrey was the responsible
local officer whose job it was to
11 monitor and manage Fidelity’s
compliance with the Indemnity
12 Agreement, a fact he personally
confirmed in his May 20, 2016,
13 meeting with plaintiff. Mr. Lowrey’s
proffered statement quoted here
14 should be disregarded as Secondary
Evidence to the actual written policy
15 of the defendants, especially when
that policy was actually put into
16 practice as evidence by the May 20,
2016, meeting.
17
18
19
20 DATED: January 12, 2018 RICHARD J. MATHIAS
21
22 By: Richard J. Mathias

Plaintiff in Pro Per
23
24
25
26 PAGE 46
1
PROOF OF SERVICE
2
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3
4 I am employed in the County of Los Angeles, State of California. I am over the age of
18 and not a party to the within action. My business address is 5042 Wilshire Boulevard, #
5 38977, Los Angeles, CA 90036
6 On January 12. 20187 I served the following document described as PLAINTIFF’S NOTICE
OF INFORMAL DISCOVERY CONFERENCE on all interested parties in this action by
7 placing [X] a true copy [ ] the original thereof enclosed in sealed envelopes addressed as
follows: David S. Bartelstone, Esq., Cunningham, Treadwell & Bartelstone, 21800
8 Oxnard Street, Suite 840, Woodand Hills, CA 91367.
9 [XX] (BY e-MAIL, (CCP § 1013a, 2015.5; Civil Code § 8486) TO: dbartelstone@ctlaw.cc
10 [] BY FACSIMILE SERVICE TO: (818) 340-6772.
11 [] (BY EXPRESS MAIL (CCP § 1013a, 2015.5; Civil Code § 8486).
12 [ ] I am readily familiar with the firm’s practice for collection and processing
correspondence for mailing. Under that practice, this document will be deposited with the U.S.
13 Postal Service on this date with postage thereon fully prepaid at Lancaster, California in the
ordinary course of business. I am aware that on motion of the party served, service is presumed
14 invalid if postal cancellation date or postage meter date is more than one day after date of
deposit for mailing in affidavit.
15
[X] (STATE) I declare under penalty of perjury under the laws of the State of California that
16 the above is true and correct.
17 [ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this
Court at whose direction the service was made.
18
Executed on January 12, 2018, Mojave County, Arizona.
19
20
21 Victor Jared Sanchez
22
23
24
25
26 PAGE 47

Evidence Objections To Declaration

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Evidence Objections To Declaration

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1 RICHARD J.

4 PLAINTIFF IN PRO PER

21 TO ALL PARTIES AND THEIR COUNSEL OF RECORD HEREIN:

6 Code of Civil Procedure. Under the Code:

7 (d) Supporting and opposing affidavits or declarations shall be

8 made by a person on personal knowledge, shall set forth admissible

9 evidence, and shall show affirmatively that the affiant is competent to

10 testify to the matters stated in the affidavits or declarations.

11 Cal. Code Civ. Proc. § 437c(d) (emphasis added).

20 Corwin, 4 Cal.3d at 849 & n6.

4 competent to testify to the matters stated in the affidavit or declaration.”

5 This fundamental failure to furnish the required foundational evidence establishing

9 regarding the validity or enforceability of the aforementioned mechanic’s liens or the

10 claimants’ entitlement to be paid.” According to Lowrey, FNTC “simply was concerned

18 As relevant here, documentary evidence produced by FNTC/FNTIC disclose that it

2 competent to offer such evidence. See Objections ___ through ___.

17 attached as Exh. __ to the R. Mathias Decl.

21 insisted they remain as “matters of record.”

4 claimants. Otherwise, why would he have expressed that specific “concern.”

9 This is but one illustration of why it is essential to enforce the evidentiary

11 facts asserted in the declaration.

16 It is, therefore, well settled that summary judgment cannot be ordered

18 be insufficient or absent, unless the moving party presents affidavits in

21 Corwin, 4 Cal.3d at 849 & n6.

5 Plaintiff’s First Amended Complaint filed herein on December 1, 2016.

6 Objections to the Lowrey Declaration

7 Material Objected to: Grounds for Objection Ruling on Objections

8 Lowrey Decl., ¶ 3, p2:11- 1. DECLARANT FAILS TO

6 10 CONCLUSORY. A declaration ____ SUSTAINED

11 Lowrey Decl., ¶ 5, p.2:22 – 11. LACKS RELEVANCE [Evid.

6 Lowrey Decl., ¶ 12(a), p.5:5 19 SECONDARY EVIDENCE

9 Lowrey’s contrary testimony

16 Lowrey Decl., ¶ 15, p.6:8- .26 PROFFERED TESTIMONY ____ SUSTAINED

7 26. THE PROFFERED

8 27. THE PROFFERED

16 Lowrey Decl., ¶ 16, p.6:11- 29. SECONDARY EVIDENCE ____ SUSTAINED

3 30 LOWREY IDENTIFIES THE ____ OVERRULED

17 31 THE QUOTED TESTIMONY

10 34. CONCLUSORY. A ____ SUSTAINED

17 Lowrey Decl., ¶ 18, p.6:20- 35. THIS STATEMENT IS ____ SUSTAINED

3 Lowrey Decl., ¶ 18, p.6:20- 36 LACKS FOUNDATION. The ____ SUSTAINED

17 38. SECONDARY EVIDENCE

6 Lowrey Decl., ¶ 19, p.6:24 39 DECLARANT HAS NO ____ SUSTAINED

20 42. DECLARANT IS OFFERING ____ SUSTAINED

15 Lowrey Decl., ¶ 20, p.7:5-8. 44. DECLARANT HAS NO ____ SUSTAINED

8 45 LOWREY ATTACHES AN ____ SUSTAINED

20 47. DECLARANT IS OFFERING ____ SUSTAINED

16 Lowrey Decl., ¶ 21, p.7:14- 49 DECLARANT HAS NO ____ SUSTAINED

9 53. DECLARANT IS OFFERING

19 Lowrey Decl., ¶ 23, p.7:22- 54 DECLARANT HAS NO ____ SUSTAINED

7 56. SECONDARY EVIDENCE

20 DATED: January 12, 2018 RICHARD J. MATHIAS

22 By: Richard J. Mathias

10 [] BY FACSIMILE SERVICE TO: (818) 340-6772.

11 [] (BY EXPRESS MAIL (CCP § 1013a, 2015.5; Civil Code § 8486).

21 Victor Jared Sanchez

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2 competent to offer such evidence. See Objections _ through _.