Albert C. Lum, Esquire State Bar Number 33521 William V.

Tarkanian, Esquire 2 State Bar Number 144491 LAW OFFICES OF ALBERT C. LUM 3 625 Fair Oaks Avenue Suite 358 4 South Pasadena, California 91030 (818) 799-5800
1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Legal/docs/Otrjn787.1

Attorneys for debtor and plaintiff WEST COAST STORE FIXTURE DESIGNERS, INC. UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA ___________________________ In re bankruptcy of ) ) In Proceedings Of ) Chapter 11 WEST COAST STORE FIXTURE ) DESIGNERS, INC., ) Bankruptcy Number ) LA 95-11218-CA Federal Tax Identification ) Number, ) Adversary Number ) LA 95-01776-CA 95-4250968, ) ) Debtor. ) ____________________________) PLAINTIFFS (1) EVIDENTIARY ) OBJECTIONS TO VICKI L. HAMILTON WEST COAST STORE FIXTURE ) DECLARATION, AND (2) OPPOSITION TO DESIGNERS, INC.,a ) DEFENDANTS REQUEST FOR JUDICIAL California corporation, ) NOTICE IN SUPPORT OF THEIR MOTION ) TO DISMISS CERTAIN CLAIMS, MOTION ) TO STRIKE PUNITIVE DAMAGES, AND Plaintiff, ) MOTION FOR MORE DEFINITE STATEMENT ) - against ) ) R. J. LANTHIER CO., INC., ) a California corporation, ) Hearing Date: June 5, 1995 UNITED PACIFIC INSURANCE ) Hearing Time: 10:00 a.m. COMPANY, a Pennsylvania ) Courtroom: 1639 Corporation, and RELIANCE ) Judge: Calvin A. Ashland SURETY COMPANY, a business ) Location: 255 East Temple St., entity, ) Los Angeles, CA
1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

) Defendants. ) ____________________________) Plaintiff WEST COAST STORE FIXTURE DESIGNERS, INC. (hereinafter referred to as the plaintiff) objects to (1) the Vicki L. Hamilton declaration (hereinafter referred to as Hamilton declaration), which has been filed in support of defendants R. J. LANTHIER CO., INC. (hereinafter referred to as RSL), UNITED PACIFIC INSURANCE COMPANY (hereinafter referred to as UPIC) and RELIANCE SURETY COMPANYS (hereinafter referred to as RSC) motions for dismissal, to strike portions of plaintiffs complaint, and for a more definite statement of plaintiffs claims against defendants (hereinafter referred to as the motions), as well as (2) defendants concurrently filed request for judicial notice, upon the following grounds: (1) The declarant is an admitted lawyer representing defendants in this action

(Hamilton decl. at 1) and, as such, there is no foundation stated in her declaration to support the fact that she has personal knowledge of the Exhibits referred to in the Hamilton declaration as Exhibit 1, Exhibit 2 and Exhibit 3. Under Rule 602 of the Federal Rules of Evidence, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. declaration. (2) Exhibit 1 of the Hamilton declaration is hearsay under Rule 802 of the Federal This requirement has not been met by defendants through the Hamilton

Rules of Evidence. Yet, nowhere in the Hamilton declaration is there any basis stated for a
2

Legal/docs/Otrjn787.1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

hearsay exception, such as one emanating under the business records exception of Rule 803(6) of the Federal Rules of Evidence. (3) Exhibit 2 of the Hamilton declaration is hearsay under Rule 802 of the Federal

Rules of Evidence. Yet, nowhere in the Hamilton declaration is there any basis stated for a hearsay exception, such as one emanating under the business records exception of Rule 803(6) of the Federal Rules of Evidence. (4) Exhibit 3 of the Hamilton declaration is hearsay under Rule 802 of the Federal

Rules of Evidence. Yet, nowhere in the Hamilton declaration is there any basis stated for a hearsay exception, such as one emanating under the business records exception of Rule 803(6) of the Federal Rules of Evidence. (5) Exhibit 1 of the Hamilton declaration has not been authenticated by the

declarant under Rule 901(a) of the Federal Rules of Evidence, which provides that authentication is a condition precedent to admissibility of a document. For example, defendants have not satisfied this mandate by any of the illustrative acts described in Rule 901(b). (6) Exhibit 2 of the Hamilton declaration has not been authenticated by the

declarant under Rule 901(a) of the Federal Rules of Evidence, which provides that authentication is a condition precedent to admissibility of a document. For example, defendants have not satisfied this mandate by any of the illustrative acts described in Rule 901(b).

Legal/docs/Otrjn787.1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(7)

Exhibit 3

of the Hamilton declaration has not been authenticated by the

declarant under Rule 901(a) of the Federal Rules of Evidence, which provides that authentication is a condition precedent to admissibility of a document. For example, defendants have not satisfied this mandate by any of the illustrative acts described in Rule 901(b). (8) Exhibit 3 is an unrecorded document, which must be recorded to be effective

under Section 3184 of the California Civil Code. (9) Exhibit 3 is unclear because lines 1 and 3 of the text are partially obliterated

with a marker. (10) Because defendants request the Court to take judicial notice of the facts

stated in paragraphs 6, 7, 8 and 12 (see defendants request for judicial notice), which is based upon Exhibits 1, 2 and 3, those facts cannot be judicially noticed under Rule 201(b) of the Federal Rules of Evidence inasmuch as that Rule only allows the judicial notice of a fact that is not subject to reasonable dispute in that it is either... (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Dated: May 24, 1995 ____________________________ Albert C. Lum, Esquire State Bar Number 33521 William V. Tarkanian, Esquire State Bar Number 144491 LAW OFFICES OF ALBERT C. LUM 625 Fair Oaks Avenue Suite 358 South Pasadena, California 91030 (818) 799-5800
4

Legal/docs/Otrjn787.1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Legal/docs/Otrjn787.1

Attorneys for debtor and plaintiff WEST COAST STORE FIXTURE DESIGNERS, INC.

1 2 3

PROOF OF SERVICE 1013A (3) CCP Revised 5/1/88 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

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 625 Fair Oaks Avenue, Suite 4 358, South Pasadena, California 91030.
5

On May 24, 1995, I served the foregoing document described as PLAINTIFFS (1) EVIDENTIARY OBJECTIONS TO VICKI L. HAMILTON DECLARATION, AND (2) 6 OPPOSITION TO DEFENDANTS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR MOTION TO DISMISS CERTAIN CLAIMS, MOTION TO STRIKE 7 DEMAND FOR PUNITIVE DAMAGES, AND MOTION FOR MORE DEFINITE STATEMENT upon all the parties to this action:
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

[[ ] by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list: [X] by placing [ ] the original [X] a true copy thereof enclosed in a sealed envelope addressed as follows: Vicki L. Hamilton, Attorney at Law MARKS AND GOLIA 3900 Harney Street First Floor San Diego, California 92110-2825 Office of the United States Trustee 221 North Figueroa Street Los Angeles, California 90012-2601 [X] [ ] [X] BY MAIL: I deposited such envelope in the mail at South Pasadena, California. The envelope was mailed with postage thereon fully prepaid. As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at South Pasadena, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. Executed on May 24, 1995, at South Pasadena, California. (BY PERSONAL SERVICE) I delivered such envelope by hand to the offices of the (State) I declare under penalty of perjury under the laws of the State of California

[ ] [X]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

[ ]

that the above is true and correct. (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.

Executed on May 24, 1995, at South Pasadena, California.

Shirley C. Moy Type Name

Signature