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MARK ZANIDES (SBN 58717) LAW OFFICE OF MARK ZANIDES 30251 Golden Lantern, Suite E-I02 Laguna Niguel, CA 92677 Telephone: (949) 545-6526 Facsimile: (888) 422-8816 Attorney for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN LUIS OBISPO PATRICIA MARTIN, an individual; Plaintiff, vs. WELLS FARGO BANK, a South Dakota Corporation, and NDEX West, LLC. A California Limited Liability Company, and DOES 1-10. Defendants. CASE NO. CVll0685 JUDGE: Hon. Charles Crandall DEPARTMENT: 9 DATE FIRST AMENDED COMPLAINT FILED: February 21, 2012 PLAINTIFFS' EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MICHAEL DOLAN AND MOTION TO STRIKE THE DECLARATION IN ITS ENTIRETY. [Filed concurrently with Reply to Defendants' Opposition to Issuance of Preliminary Injunction]

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HEARING: DATE: April 26, 2012 TIME: 9:00 a.m. DEPARTMENT: 9

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TO DEFENDANTS AND TO THEIR ATTORNEYS OF RECORD: Plaintiff PATRICIA MARTIN submits the following objections to the Declaration of Michael Dolan and Supporting Exhibits filed in connection with the Defendants' Opposition to OSC re: Preliminary Injunction, and move to strike the declaration as set forth below:

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Plaintiff Patricia Martm ("Plaintiff'), hereby objects and requests that this Court strike
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this declaration following documents for their Opposition to OSC re: Preliminary Injunction. GENERAL OBJECTIONS Plaintiff objects to the entire Declaration of Michael Dolan (herein Declaration") since Declarant has to establish any personal knowledge of the contents of the documents submitted in support for his Declaration and as such, Declarant's statements are purely conclusory and argumentative. See Evid. Code § 702; Osmondv. Ewap, 153 Cal. App. 3d 842,851 (1984)

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1. Plaintiff objects to the entire Declaration as there is no showing of personal knowledge or competence to testify. (Evid. Code §403). Plaintiff avers he has "access" to certain listed information and activities. He further asserts that he has "personal knowledge" of the facts set forth in the affidavit, but there is no indication from his declaration that in fact he has any personal knowledge of the Martin file whatsoever. Id Indeed, it is fairly to be inferred from the description of the various job titles held that he has no personal knowledge of the Martin loan file. He was a Vice President in the Porfolio Retention Department at Wachovia, and his listed job titles vary from positions in "financial planning", mergers and acquisitions, and portfolio retention, He states that he has "extensive personal familiarity with "all of Wells Fargo customs, practices and protocols" on a wide range of business activities at Wells Fargo. Dec. ,-r 2. We would welcome the opportunity to cross examine Mr. Dolan on what "all" means in this context 2. Plaintiff objects to the entire Declaration and to the communication referenced

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Logs in support of, as lacking foundation (Evid. Code §§402, 403). 3. Plaintiff objects to the entire Declaration as hearsay which has no credible basis

for attesting to the truth and accuracy of the Communication Logs. (Evid Code § 1200(b) SPECIFIC OBJECTIONS 1. Plaintiff objects to the admissibility of Declarant's unsupported statements in ,-r3


that the bank "sent" the communications referenced therein. There is no showing of the basis for his knowledge of the specific mechanisms for the bank sending these alleged communications.





As such, his assumptions are without the necessary foundation to be admissible. This is
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particularly true where, as here, the communications appear to have been computer generated and are unsigned by any identifiable person. 2. Plaintiff objects to the statement 'in ~6(v) that after 90 day delinquency the bank

would not permit the borrower to make loan payments at a local branch, and would not accept less than the full amount due in the absence of a formal agreement. There is no reference support for this assertion. 3. Plaintiff objects to Declarant's purported summary and characterization of the

loan modification process involving Plaintiff. a. There is no showing that the communication logs he reviewed were made

in the "regular course of business (Evid. Code §1271(a)) Michael Dolan is employed as an operations analyst operations analyst and is incompetent to testifying how these records were kept without further foundational support. b. There is no showing that communications logs were made at or near the

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time of the act, condition or event recorded (Evid. Code §1271(b)). Michael Dolan has no way of attesting to the time of the creation of these records beyond a simple reading of the time stamp. c. There is no showing that Michael Dolan is the records custodian or

otherwise qualified to testify to its identity and mode of preparation (Evid Code §1271(c)). d. Declarant lacks sufficient basis to effectively show that these documents

were prepared in "regular course of business". Michael Dolan merely has access to the files and records, and he is unable to accurately attest to whether these types of records are customarily kept, nor does he have firsthand knowledge of the events recorded, nor does he have a business duty to observe and report the facts recorded. e. To the extent Declarant is a recipient of the writing and is unable

personally to authenticate it because he cannot testify as to its mode of preparation, he is not qualified to provide the requisite authentication. (Evid Code §1271) California Steel Bldgs., Inc. v. Transport Indem. Co. (1966) 242 CA2d 749, 759.




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Plaintiff objects to the "Communication Logs" in their entirety as

Declarant has no basis for attesting to the truth and accuracy of a document that was not created by him, and it does not on its face establish any foundation that the document was created by Wachovia or Wells Fargo. Additionally, the logs cannot not on their face establish what number was dialed, who made the call or who answered. g. Plaintiff objects to Declarant's legal conclusions. For example, Declarant asserts

that Borrower "defaulted" on her loan as of September 2010. Whether the borrower defaulted under these circumstances is a legal question to be determined by this Court.

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Declarant claims that all of the letters, notices and statements attached to the

declaration were sent by the bank to the borrower at the address stated therein, on or about the respective dates shown on each document. Dec. ~ 8. There is no showing whatsoever that Declarant has the knowledge of the system which causes said communications to be sent out. Nor is there any indication whatsoever that he has any basis for authenticating or otherwise establishing the reliability of any "system that captures the data on the written information transmitted by mail to the borrower." h. Declarant has not even attempted to lay the foundation for the computer

record or and systems which contain the information he purports to summarize. 3. Simply put, Declarant simply has access to the records, and cannot authenticate

them. That is not sufficient.

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Respectfully Submitted, Dated: April 18, 2012 by:

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I, the undersigned, am employed in the County of Orange, State of California. I am over the age of eighteen (18) years and not a party to the cause. My business address is 30251 Golden Lantern, Suite E-q02, Laguna Niguel CA 92677. On April 19, 2012, I served the true copies of the foregoing documents described as PLAINTIFFS' EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MICHAEL DOLAN AND MOTION TO STRIKE THE DECLARATION IN ITS ENTIRETY; THIRD DECLARATION OF NICOLE ORTEGA; THIRD DECLARATION OF PATRICIA MARTIN, DECLARATION OF MARK ZANIDES, PLAINTIFF'S REPLY TO DEFENDANT WELLS FARGO BANK N.A'S OPPOSITION TO OSC RE PRELIMINARY INJUNCTION on the interested parties in this action, addressed as follows:

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Edward Treder Lindsey King Barrett Daffin Frappier Treder and Weiss 20955 Pathfinder Road, Suite 300 Diamond Bar, CA 91765 Tel 805 5445600 Fax 909.595 7640

Lynette G. Winston Anglin Flewelling Rasmussen Campbell & Trytten, LLP. 199 South Los Robles Avenue, Suite 600 Pasadena, CA 91101

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[X] BY Overnight Delivery Service. The documents were placed in sealed, addressed envelopes on the above date and delivered to a UPS office in Laguna Niguel, with delivery charges fully prepaid, in time for collection on that day. [X ] By E-mail or Electronic Transmission. I caused the documents to be sent to the not


persons at the e-mail addressesatEdwardt@bdfgroup.comandlwinstond@afrct.com.Idid

receive, with a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this affidavit was executed on

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April 19, 2012. Ybmel Zanides -....



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