HomeMy WebLinkAboutExhibit 3Exhibit 3
♦(
FURY REVOCATION HEARING - 4/22/2008
1 (Pages 627 to 630)
Precise Reporting Service
714- 647 -9099
3' 1
Page 627
Page 629
1
E)MBITS
FOR M
2
CITY: IDENTIFICATION EVIDENCE
3
8 Memo to Aaron Harp from 717
Shannon Levin re: Fury
FURY REVOCATION HEARING
4
Rok & Rol Sushi Lounge
TUESDAY, APRIL 22, 2008
E nforcencm Tasks.
ode7
Code C
5
NEWPORT BEACH, CALIFORNIA
6
8A Copy ofphowgmph taken 717
11- 154007 of
8:20 0-.m
8B Copyo£photographtaken 717
8
l I -15 -2007 of
9
SC Copy ofpholograph taken 717
HEARING RE "THE FURY'takm at 3300 Newport
11 -15 -2007 of
10
Boulevard, Newport Beach, California, commencing at
81) Copy of photograph taken 717
10:30 a.m., Tuesda , April 15, 2008, before
YAP �
12
12
I Copy off of
SE Copy ofphotogeph Wren 717
NANCI L GRUBS, CSR N0. 3446. i
11 -15 -2007 ofcar, license
13
plate Dumber 4KEGG315
14
OF Copyoftlun gmphtaken 717
11-15 -2007 of
15
THOMAS A. ALLEN, HEARING OFFICER- ptlaw@sbcglobal.net
9 Memo to Aaron Harp from Shaman 717
STEPHEN JAMIESON, ATTORNEY FOR 'THE FURY"
16
Levin re: Fury Rok &Rol Sushi
Lounge Code Enforcement Tasks,
JUNE AILII, ATTORNEY FOR THE CITY -
17
12 -5 -07
18
_
717
jailin@awattomeys.com
9B 1129- 29
19
plate number 4KEGG315 and 3KTS073
20
9C Copyofphotographteken 717
9D 11- 29- 2007ofcars,hceme
21
plate number 6AFS664 and SIFM720
22
10 Meng to Aamn Harp Rom Shaman 717
Levin re: Fury Rok & Rol Sushi
23
Lounge Code Enforcement Tasks,
24-08
24
Page 628
Page 630
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1
EX11mfrs
FOR IN
2
INDEX
2
CITY mEMI TION EV WENCE
3
10A Copy ofplwtop'eph taken 717
3
1-3x200](sic)
4
CITY'S WITNESSES HEARING
4
plaerwmber4KEGG315 and bAFS664
EGGS 5.d
pmlinB Penh tab
5
DIRECT CROSS REDIRECT RECROSS OFFICER
1 5
IOB Copyofphaoglaotaken 717
6
6
(
I- 30-2007 (sic) ofcaa, license
5PBM8145 and 3RYA634
7
PAULSALENKO
7
orlon SUV
8
638 646 663,666 664
a
IOC Copy ofplhowgaph taker 717
1 -30-2007 (sic) ofcars, levee
9
ERIC PETERSON
9
pIuanwIxo4KE.GG315and6]A7493
parking pemut tats
10
668 672 675 676 674
NOD Copy ofphc)ofcuhtaken 717
11
MATTHEW GRAHAM
11
07 (s¢PM81,hceme
platennpeonatBM8140-M SYTG742
p1teen
12
677 684 702 703
12
parki tpmn¢taaet
13
GLENN GARRITY
13
IoE Cgryofphao®aphtaken 717
1.30 -2007 ( sic) of eats. license
14
704 706 714 715
14
platenmrber68CBW85,6AFS664,
38YA634
15
BRYCE HARDY
' 15
!
IOF Copy ofphowilophtaken 717
16
720 739 752
16
1.30 -20m (sic)ofcers, license
plate rwmber 5101493 and 6X13163
17
17
aMhw filer cars
18
FURY'S WITNESSES HEARING
1e
IOG cop orphat repbtaka" 717
1 -30 -2007 (sic) ofcar, lioeme
19
DIRECT CROSS REDIRECT RECROSS OFFICER
19
platenumhrfil E 18(tivee
phow,,lu a license pla o)
20
20
21
SEVAN ABDESSIAN
21
10H Copy orplatogaph wkm 717
laazoa -1 (sic) ofcros.licace
22
755 797 807
plewnusnba3X1s1 501,6ZA7493,
22
6BCE948 and 3RYA634
23
DAVID GONZALEZ
23
lot Copyofphm>graphtakm 717
1- 30-2007 (sic) 0f oars, license
24
808 837 861,864 862 818
24
plate number SYTG742,51)1 958,
6X13163and4MT513
25
25
Precise Reporting Service
714- 647 -9099
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FURY REVOCATION HEARING - 4/22/2008
2 (Pages 631 to 634)
Precise Reporting Service
714- 647 -9099
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Page
631
Page 633
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EXHIBITS
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THE HEARING OFFICER: Its Tuesday, April 22nd at
2
FOR IN
CITY: IDENTIFICATION EVIDENCE
2
8:20. We have been discussing a few evidentiary items
3
101 Copy ofphomgreph taken
717
3
that were suggested in an a -mail that I sent to the
4
1- 30.2007 (sic) of car, license
plate number SPBM814
4
parties over the weekend, so I'll briefly cover that,
5
11 Copy of Fury advertisement for
717
5
and then we will proceed.
6
2008 New Yeats Celebration
6
With regard to City Exhibits 24 and 25, daily
12 Advertisement from
717
7
reports and Fury 26 daily reports, you both are provided
7
a
www.aieanaCutenamrnenLCUm
13 Copy of advertisement reflecting
717
8
the opportunity to present short, written arguments or
Thursday Nights Club Edip. at
9
explanation of those items by Frida April 25th at
9
Fury Roy u' Rol Sushi
Y.
1 D
14 MySpace advertisement for Fury
717
10
10:00 a.m. If you feel compelled to present testimony,
11
Lounge
11
you may each have a total of tel minutes of witness
15 Web page prmtc nt from
717
12
testimony and five minutes of cross - examination on those
12
Ticket Triangle reflecting
The Social Group tickers
13
exhibits. If either of you plan to present any earlier
23
(February to May)
14
or later versions of these financial reports, you must
14
16 Web page printout from
717
Ticket Triangle reflecting
15
do so by 5:00 p.m. Wednesday, April 23rd and at the same
15
The social croup or
time provide a short description of the reason for the
p P
Fury
February 8, 2008 for Fury
16
17
presentation, and the opposing party Will have 24 hours
17 Web page inmutfrom Cos[
717
18
to a written response.
17
Tick
m Coast Tickets reflecting
provide
Fury Event tickets
19
With regard to Fury 25, Mr. Jamieson has
is
19
(February in May)
20 Fury full menu
635
20
requested the need to do a short presentation on the
20
21 Fury lane n =u
635
21
photographs -- strike that. There is agreement to
21
27 Employees Report, 231
679
DR 07 -11763 re: Fury
22
stipulate to the admissibility of the interior and
22
Rok and Rol Sushi Lounge
23
exterior photographs?
23
28 Newport Beach Police 231
680
Department Title 20 Zoning
24
MS. AILIN: Yes.
24
Violation, DR no. 07 -11978
25
THE HEARING OFFICER: But not to the items
25
Page
632j
Page 634
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EXHIBITS
1
depicting food?
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FOR M
CITY: IDENTIFICATION EVIDENCE
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MS. AB.IN: That's Correct.
3
29 Newport Beach Police
681,706
3
THE HEARING OFFICER: And Mr. Jamieson is,
4
Depatmem Title 20 Zoning
Violation, DR No, 08 -00959
4
therefore, going to present evidence with respect to the
5
30 Newport Beach Police
724
5
food items pictured in F 25. Miss Allin has agreed to
Deparment Supplemental
6
Report overcrowding C tabor,
6
prepare written objections to any of the other Fury
DR No. 08 -873
7
exhibits b tomorrow mining. With respect to the menu,
y g. resP
7
31 Newport Beach Police 232
684
8
the Fury menu — and do we have an exhibit number on
a
Deparmxnt Title 20
Zoning Violation,
9
that? I apologize.
9
DR no. 08 -01078
10
MS. AR.JN: That's C 20 and C 21, and I think there
1D
EXHIBITS
FOR M
11
may have been —
11
FURY: IDENTIFICATION EVIDENCE
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MR. JAMIESON: Cm sure we also have it in Fury.
12
22 Me. 775
13
23 Lunch Special Cud
776
13
MS. AR,IN: -- F 22.
14
24 Article: "Whatliappensat
Fury," Dining on the Edge:
779
14
MR. JAMIESON: That's correct
15
O.Cs best destination
15
THE HEARING OFFICER: What is the stipulation on
restaurants, in Orange Coast:
16
The Magazine of Orange County
16
these exhibits?
March zoos
17
MS. AMIN: As to authenticity and admissible.
17
25 Photographs ofprenuses fintuicr
786
18
THE HEARING OFFICER: They are authentic, and they
16
and exterior) of Fury, and Food
19
may be admitted into evidence.
served at Fury
19
20
MS. AaJ N: Yes.
20
26 January2008Statementof Food
and Alcohol Sales
717
I 21
THE HEARING OFFICER: What numbers are they again?
21
27 Public Relations Program
785
22
Ms. A[[-IN: C 20 and 21.
Overview for Fury Rek & Rol
22
Sushi Lomge
23
MR. JAMIESON: C 22?
23
29 Diming Out Article re Fury
789
24
MS. AII.W: And F 22.
Rock & act Stahl Lounge
24
from Falvwinror 2007
25
THE HEARING OFFICER: They are admitted, and
25
Precise Reporting Service
714- 647 -9099
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FURY REVOCATION HEARING - 4/22/2008
Page 635
Miss Alin reserves the right to argue the compliance
for the use permit with respect to the menus.
(City's Exhibits 20 and 21 were
admitted into evidence and are
bound under separate cover.)
THE HEARING OFFICER: Mr. Jamieson, I previously
indicated I did not feel with respect to F 29, which is
your request for a site visit, that I noted Miss Ailin
felt that if we were going to do a site visit we should
probably do it late on a Saturday night rather than on a
Wednesday afternoon, and I previously indicated that I
was very familiar with the immediate vicinity, and with
the evidence that has been presented here I feel as
though I have a solid feel for the exterior of the
premises and the interior, and so don't feel the need
for a site visit, and due to the time constraints we
have, we will forego that opportunity.
MR. JAMIESON: For purposes of the record only, if
I could just interpose a -- 1 suppose a statement, not
an objection per se, but just an indication with regard
to the site visit. Since there is a concern of the city
and in particular since the city attorney has registered
a concern about the supposed legitimacy of these food
photographs and there is this whole issue about saving
food and all those things, I think it's important for
3 (Pages 635 to 638)
Page 637
1 THE HEARING OFFICER: Understood. With that is
2 there anything else we need to discuss preliminary to
3 commencing testimony?
4 MS. AH.IN: Just that we have this room, the
5 counsel chambers and the conference room behind it until
6 three o'clock today, and then we need to move into the
7 planning trailer. That may become an issue. We may
8 have to get creative in dealing with the undercover
9 officers, although Fin hopeful that the two undercovers
10 who are scheduled today, if we can get done with them by
11 three o clock, it won't be an issue, and we can continue
12 in the planning conference trailer, wherever that may
13 8124MVIrbe. I'm sure Kristi can point us in the right
14 direction when she gets here, and also at some point --
15 again, I would rather save this for later when we are in
16 the planning trailer. We need to talk about the
17 admissibility of some other exhibits.
18 THE HEARING OFFICER: Yes. Thank you.
19 MS. AILIN: The city�s first witness this morning
20 is Paul Salenko, and 1 will ask the court reporter to
21 swear the witness.
22
23 PAUL SALENKO,
24 having been first duly administered an
25 oath in accordance with CCP 2094, was
Page 638
examined and testified as follows:
DIRECT EXAMINATION
BY MS. AB-IN:
Q. Mr. Salenko, please state and spell your name
for the record.
A. It's Paul Salenko, Sa- kin -ko.
Q. And, Mr. Salenko, how are you employed?
A. I'm the senior crime analyst for the City of
Newport Beach Police Department
Q. How long have you worked for the Newport Beach
Police Department in that capacity?
A. A little over 12 years.
Q. And before you started working for the Newport
Beach Police Department in that capacity what kind of
work did you do?
A. 1 was a detective for the Los Angeles Police
Department,
Q. Could you describe for us your duties as the
senior crime analyst for the Newport Beach Police
Department?
A. Basically what I do is review crime trends and
crime patterns, try and put them together and farm them
out to the appropriate detectives and/or patrol officer
so that they might be able to impact that problem.
Precise Reporting Service
714 - 647 -9099
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Page 636
1
the hearing officer to fully understand and see the I
1
2
kitchen facilities, the nature and extent of the kitchen
2
3
facilities, and the photographs don't adequately portray I
3
4
that. We have exhibits that reflect the floor plan. It
4
5
does show a large kitchen area, which is great. We have ;
5
6
some photographs that reflect some of the food services
6
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areas. That's true, and that's great, but I think that
7
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with any matter like the one before the hearing officer
a
9
now where we are talking about something that's -- where
9
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there is issue of whether or not there is substantial
10
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food service, it's also an issue of how extensive is the
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kitchen and is it an important area of the premises and
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is it fully extensive so that they can actually do full
13
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service for everybody that's going to be there and the
14
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occupancy load, et cetera, and so for that reason I
15
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think it may be helpful.
16
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Obviously the hearing officer will do whatever
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he is going to do. That's the reason for that site
1a
19
visit, not so much on the outside. You can see that on
19
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the photographs, not so much the inside, just to get an
20
21
idea what it looks like, which is great, but with regard
21
22
to that kitchen area. So with that in mind if the
22
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hearing officers chooses to do something else later or
23
24
at some point in the proceeding, that would be the
24
25
reason it was requested.
25
Page 638
examined and testified as follows:
DIRECT EXAMINATION
BY MS. AB-IN:
Q. Mr. Salenko, please state and spell your name
for the record.
A. It's Paul Salenko, Sa- kin -ko.
Q. And, Mr. Salenko, how are you employed?
A. I'm the senior crime analyst for the City of
Newport Beach Police Department
Q. How long have you worked for the Newport Beach
Police Department in that capacity?
A. A little over 12 years.
Q. And before you started working for the Newport
Beach Police Department in that capacity what kind of
work did you do?
A. 1 was a detective for the Los Angeles Police
Department,
Q. Could you describe for us your duties as the
senior crime analyst for the Newport Beach Police
Department?
A. Basically what I do is review crime trends and
crime patterns, try and put them together and farm them
out to the appropriate detectives and/or patrol officer
so that they might be able to impact that problem.
Precise Reporting Service
714 - 647 -9099
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FURY REVOCATION HEARING - 4/22/2008
•s traycn v.» vv c�zc��
Page 641
January through June?
A. None.
MR. JAMIESON: Excuse me. I'm going to object. It
calls for information that is hearsay in nature, and
there is not a document within the city's exhibit list
that reflects the information that Mr. Salenko is
apparently testifying from He has documentation in
front of him with handwritten notes on it and a series
of numbers and columns and rows, and that is not
infom>etion that has been provided as an exhibit; and
therefore, it is not something that Fury is able to
prepare for a defense and adequately cross - examine
Mr. Salenko on the information that he is apparently
testifying about today. So unless he has personal
knowledge of all these crimes, which clearly he doesn't,
and unless he has personal knowledge of the information
when it happened of which he apparently intends to
testify, we would object on the basis that it lacks
foundation, calls for hearsay, speculation, violates
Furys right to due process and its constitutional right
to a fair hearing.
MS. AILIN: There were crime statistics that were
included in the staff report to the planning commission.
MR. JAMIESON: Not relevant here.
MS. AILIN: This is -- well --
Page 642
MR. JAMIESON: Not relevant.
THE HEARING OFFICER: Let Miss Ailin finish.
MR. JAMIESON: fin sorry?
MS. AILIN: We are looking at the same concept
through a slightly different lens comparing different
time periods during the year 2007. I can ask some
additional questions about foundation, which I would
like to do before a decision is made about whether
Mr. Salenko can proceed with his testimony.
THE HEARING OFFICER: Please do.
BY MS. AILIN:
Q. Mr. Salenko, can you please tell us what you
did in the course of the compiling these statistics?
A. As part of my duties, I compile all the
city -wide statistics, and I provide them to the
management and staff for their information. I also put
them on the city website for the citizens to be aware of
what the numbers are, that kind of thing.
Q. How do you get the information about the
crimes that have occurred in the city?
A. When an officer takes a report in the field,
that report ends up in the computer system for lack of a
better — and it's coded as a certain type of report, in
this instance an aggravated assault or a simple assault.
Then I take those numbers back out of the computer
Precise Reporting Service
714 - 647 -9099
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Page 6391
1
Q. Are you familiar -- well, is the city of
1
2
Newport Beach divided into police reporting
2
3
districts?
3
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A. Yes, it is.
4
5
Q. And are you familiar with the location of Fury
5
6
Rok and Rol Sushi?
6
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A. I am.
7
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Q. Do you know what reporting district Fury Rok
8
9
and Rol Sushi is located in?
9
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A. It's what we call RD 34.
10
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Q. Can you describe the boundaries of RD 34?
11
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A. It's basically Jamboree on the south and
12
13
Campus on the kind of northwest, and Campus makes a
13
14
loop, so that also does the northern border also, and
14
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then on the south it's Bristol North.
15
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Q. And what sort of development is there in that
16
17
reporting district?
17
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A. It's primarily commercial in nature, office
18
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buildings, restaurants, that sort of thing.
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Q. Did you compile some crime statistics for
20
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reporting District 34 for the period from January
21
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through December 2007?
22
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A. I did.
23
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Q. And what crime statistics did you compile for
24
25
that period?
25
- - .__,.
-_ —— Page 640
1
A. Basically I looked at all of the crimes, what
1
2
they referred to as part one crimes and then the part
2
3
two crimes. I did the total number of arrests.
3
4
Q. What's a part one crime?
4
5
A. A part one crime is something that was
5
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developed by the FBI many, many years ago so that they
6
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could accurately account for crimes in all the various
7
8
locations throughout the country, so a burglary in
8
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California is also a burglary in New York, so if you
9
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were to do research, you could compare apples to
10
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apples. The part one crimes are the more serious crimes
11
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homicide, rape, robbery, burglary, thefts of all kinds,
12
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grand theft auto, arson.
13
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Q. And what is a part two crime?
14
is
A. A part two crime is basically everything else
15
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that is considered a crime, drunks, DUIs, kidnapping,
16
17
fraud, forgery, vandalism, those sorts of things.
17
1B
Q. When you gathered those statistics on crimes
18
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In reporting District 34 for the calendar year 2007, did
19
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you do a comparison of any time periods within the year?
20
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A. I did. The first six months of the year,
21
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January through June and then July through
22
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December.
23
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Q. And in gathering those statistics, how many
24
25
aggravated assaults did you find in the period from
25
•s traycn v.» vv c�zc��
Page 641
January through June?
A. None.
MR. JAMIESON: Excuse me. I'm going to object. It
calls for information that is hearsay in nature, and
there is not a document within the city's exhibit list
that reflects the information that Mr. Salenko is
apparently testifying from He has documentation in
front of him with handwritten notes on it and a series
of numbers and columns and rows, and that is not
infom>etion that has been provided as an exhibit; and
therefore, it is not something that Fury is able to
prepare for a defense and adequately cross - examine
Mr. Salenko on the information that he is apparently
testifying about today. So unless he has personal
knowledge of all these crimes, which clearly he doesn't,
and unless he has personal knowledge of the information
when it happened of which he apparently intends to
testify, we would object on the basis that it lacks
foundation, calls for hearsay, speculation, violates
Furys right to due process and its constitutional right
to a fair hearing.
MS. AILIN: There were crime statistics that were
included in the staff report to the planning commission.
MR. JAMIESON: Not relevant here.
MS. AILIN: This is -- well --
Page 642
MR. JAMIESON: Not relevant.
THE HEARING OFFICER: Let Miss Ailin finish.
MR. JAMIESON: fin sorry?
MS. AILIN: We are looking at the same concept
through a slightly different lens comparing different
time periods during the year 2007. I can ask some
additional questions about foundation, which I would
like to do before a decision is made about whether
Mr. Salenko can proceed with his testimony.
THE HEARING OFFICER: Please do.
BY MS. AILIN:
Q. Mr. Salenko, can you please tell us what you
did in the course of the compiling these statistics?
A. As part of my duties, I compile all the
city -wide statistics, and I provide them to the
management and staff for their information. I also put
them on the city website for the citizens to be aware of
what the numbers are, that kind of thing.
Q. How do you get the information about the
crimes that have occurred in the city?
A. When an officer takes a report in the field,
that report ends up in the computer system for lack of a
better — and it's coded as a certain type of report, in
this instance an aggravated assault or a simple assault.
Then I take those numbers back out of the computer
Precise Reporting Service
714 - 647 -9099
V4
FURY REVOCATION HEARING - 4/22/2008
5 (Pages 643 to 646)
Page 645
Q. And in the period from July through December,
how many simple assaults were reported in reporting
District 34?
A. 27.
Q. From January through June, how many crime
reports where the crime recorded was DUI came out of
reporting District 34?
A. Five.
Q. And in the period from July through December,
how many crime reports where the reported crime was a
DUI came of reporting District 34?
.4 25.
Q. And during the period from January through
June, how many reports of public intoxication were there
from reporting District 34?
A. 7.
Q. And during the period from July through
December, how many crime reports for public intoxication
came out of reporting District 34?
A. 38.
Q. Now, Mr. Salenko, you have focused on the
crime reports and the statistics; is that right?
A. Yes.
Q. Do you know anything about what business
establishments opened or closed in reporting District 34
Page 646
during the year 2007?
A. No.
MS. AII-IN: I have no further questions.
MR. JAMIESON: I'd like to renew my objections at
this point.
THE HEARING OFFICER: All right.
MR. JAMIESON: My objections are again –
THE HEARING OFFICER: They were made. Go ahead.
MR. JAMIESON: The ruling on my current objection,
please?
THE HEARING OFFICER: Overruled.
CROSS-EXAMINATION
BY MR. JAMIESON:
Q. Mr. Salenko, may 1 see the documents from
which you were testifying? Can I see everything that's
in that.
A. Would you like your own copy?
Q. No, I would like the one that you've got. I'd
also Ike what's behind, what was dipped together.
A. That's what I asked, so –
Q. Okay. Is – you took the dip off, so let me,
ask you, is the clip – is documentation that you took
the clip off of a copy of the same things that you have
just handed to me?
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714 - 647 -9099
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Page 643
1
system and put them into various forms for review.
1
2
THE HEARING OFFICER How do you know what ones to
2
3
access out of the system and ones not to? What basis do
3
4
you use?
4
5
THE WITNESS: The classification of the crime,
5
6
part one crime versus part two crimes. I give the
6
7
management a part one – and a part two report every
7
8
month as to how many crimes, part one crimes, how many
8
9
part two crimes by category that we have.
9
10
THE HEARING OFFICER: Do the officers list on their
10
11
reports whether they are part one or part two?
11
12
THE WITNESS: No, they title the report. For
12
13
example, an aggravated assault, assault with a deadly
13
14
weapon, that goes and gets coded as a part one crime and
14
15
an aggravated assault.
15
16
THE HEARING OFFICER: And so then your research
16
17
provides you some access to those reports based on
17
18
the –
18
19
THE WITNESS: Aggregate number–
19
20
THE HEARING OFFICER: So that's –
20
21
THE WITNESS: –of the crimes, yes. So many
21
22
aggravated assault, so many simple assaults, so many
22
23
robberies, rapes, et cetera.
23
24
THE HEARING OFFICER: And this is part of your
24
25
usual and normal practice in your job capacity
25
—
....__ --------- –�-
Page 644
1
THE WITNESS: Yes, sir.
1
2
MR. JAMIESON: We are maintaining our objection.
2
3
THE HEARING OFFICER: I would rule that Mr. Saleuko
3
4
be authorized to proceed to describe the answer to the
4
5
question previously posed by Miss Ailin, and we'II
5
6
evaluate it accordingly as he proceeds.
6
7
MS. AIJ N: Okay. I'll --
7
8
MR. JAMIESON: So my objection is overruled?
8
9
THE HEARING OFFICER: Yes, its overruled.
9
10
MR. JAMIESON: They are ovenuled. Okay.
10
11
BY MS. A1LIN:
11
12
Q. Mr. Salenko, in your review of the crime
12
13
statistics for the year 2007, from January through June,
13
14
how many crime reports indicating that the crime that
14
15
had occurred was an aggravated assault were reported in
15
16
reporting District 34?
16
17
A. None.
17
18
Q. And during the period from July through
18
19
December in the same reporting district, how many
19
20
aggravated assaults were reported?
20
21
A. Two.
21
22
Q. During the period from January through June in
22
23
reporting District 34, how many crime reports were filed
23
24
identifying the crime as a simple assault?
24
25
A. 13.
25
5 (Pages 643 to 646)
Page 645
Q. And in the period from July through December,
how many simple assaults were reported in reporting
District 34?
A. 27.
Q. From January through June, how many crime
reports where the crime recorded was DUI came out of
reporting District 34?
A. Five.
Q. And in the period from July through December,
how many crime reports where the reported crime was a
DUI came of reporting District 34?
.4 25.
Q. And during the period from January through
June, how many reports of public intoxication were there
from reporting District 34?
A. 7.
Q. And during the period from July through
December, how many crime reports for public intoxication
came out of reporting District 34?
A. 38.
Q. Now, Mr. Salenko, you have focused on the
crime reports and the statistics; is that right?
A. Yes.
Q. Do you know anything about what business
establishments opened or closed in reporting District 34
Page 646
during the year 2007?
A. No.
MS. AII-IN: I have no further questions.
MR. JAMIESON: I'd like to renew my objections at
this point.
THE HEARING OFFICER: All right.
MR. JAMIESON: My objections are again –
THE HEARING OFFICER: They were made. Go ahead.
MR. JAMIESON: The ruling on my current objection,
please?
THE HEARING OFFICER: Overruled.
CROSS-EXAMINATION
BY MR. JAMIESON:
Q. Mr. Salenko, may 1 see the documents from
which you were testifying? Can I see everything that's
in that.
A. Would you like your own copy?
Q. No, I would like the one that you've got. I'd
also Ike what's behind, what was dipped together.
A. That's what I asked, so –
Q. Okay. Is – you took the dip off, so let me,
ask you, is the clip – is documentation that you took
the clip off of a copy of the same things that you have
just handed to me?
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1
A. I brought one for everyone, yes.
1
Q. When you say this is, you are referring to the
2
Q. You did. So that's all that's left before you
2
document that says 2007 at the top left -hand corner and
3
are additional copies of the same things you have handed
3
reflects various totals in a column form, correct?
4
to me?
4
A. Yes.
5
A. I guess I have a crossword puzzle here.
5
Q. But then you also walked in here today with
6
Q. How are you doing?
6
two other sheets of paper behind that one the references
7
A. I haven't started it yet.
7
a monthly management report and one has up at the top
8
Q. Would you like some help there?
8
left -hand comer RD 34 crime type, correct?
9
MS. AILIN: He was planning on reading. Could we
9
A. Yes.
10
just have a minute because [ need to probably close the
10
Q. So the summary that you referred to that you
11
doors because we have an officer.
11
had on top which you did testify from, that's actually a
12
THE WITNESS: That's it.
12
compilation or a summary that includes information you
13
BY MR. JAMIESON:
13
obtained from the other two sheets of paper, right?
14
Q. We will wait until she gets back to ask you
14
A. It is a subset of the documents.
15
some questions.
15
Q. Which means that you got information from
16
Your Honor, if I may just have a moment to
16
these other two documents and included it In your
17
look at these three pages that I have just been handed.
17
summary, correct?
18
THE HEARING OFFICER: Yes. Do you have extra
18
A. I get the information all from the some place
19
copies?
19
and just looked at it in different forms, that's true.
20
THE WITNESS: I do, sir.
20
Q. So you put this information on your summary
21
THE HEARING OFFICER: May I have one?
21
and compilation in a form that allows you to testify the
22
MR. JAMIESON: Forpurposes of the record, I
22
way that you did today utilizing the information from
23
actually would object to the hearing officer reviewing
23
these other two documents, true?
24
these documents. They have not been offered as
24
A I don't— no, I don't think that's exactly
25
exhibits. Whether or not--
25
right. I looked at these numbers individually. I did
Page 648
Page 650
1
MS. AILIN: That's correct. I was not planning on
1
not derive them from — those numbers are derived from
2
offering the documents.
2
the same computer, that's true, but these numbers,
3
THE HEARING OFFICER: I handed them back, with the
3
somebody asked me for these very specific time frames
4
understanding that I will not be able to understand
4
and these numbers, and that's what I compiled here.
5
your cross- examination nearly as well.
5
Q. So these three sheets of paper are just
6
MR. JAMIESON: And it may very well be that after I
6
different ways of looking at the same information;
7
look at it Ill say, let's all take a look, but since I
7
would that be correct?
8
have not had these before two minutes ago I don't know
a
A. For different— the one is for the entire
9
what is in here.
9
city. The other one is by RDs going back much further,
10
Q. Mr. Saleako, these three pages that you
10
that's true.
11
brought with you here today and from which you were
11
Q. Going back, in fact, to 1990; is that right?
12
testifying, when were they printed up?
12
A. Yes.
13
A. I believe[ printed them yesterday.
13
Q. Mr. Salenko, with regard to your testimony
14
Q. The documents that you have handed to me from
14
about simple assaults, is it correct that in January of
15
which you were testifying that state it's a monthly
15
2007 there were three in reporting District 34?
16
management report and shows part one and part two
16
A. Yes.
17
offenses of 2007, is this for the entire City of Newport
17
Q And in February of 2007 there were two?
18
Beach or just that one report?
18
A. Yes.
19
A. That's not the document I was testifying from
19
Q. And in March there was one; is that right?
20
This first one is.
20
A. Yes.
21
Q. The document that you are referring to, is the
21
Q. And in April there were two?
22
first one actually a summary or compilation of
22
A. Yes.
23
information you put together from these other two
23
Q. And in May there were two?
24
documents that were behind it? Would that be true?
24
A. Right.
25
A. This is a summary document of RD 34 only.
25
Q. And in June there were three?
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personally; would that be true?
A. Yes.
Q. And so for those things that a police officer
reports as having happened that the police officer did
not personally observe, that means that the report that
you looked at would rely on information that had been
provided to the police officer, correct?
MS. AILIN: Objection; vague and ambiguous.
BY MR JAMIESON:
Q. Is that true?
THE HEARING OFFICER: Overruled.
THE WITNESS: I guess, you are right. It is vague
and ambiguous, but somebody in the field tells an
officer this — X, Y and Z happened to me, they prepare
a document, a crime report, and that gets entered into
our system, yes, sir.
THE HEARING OFFICER: And the crime may or may not
have occurred?
THE WITNESS: Somebody alleged that it did. What
occurs after that I have no knowledge.
BY MR. JAMIESON:
Q. Okay. But that's the point, that it may or
may not have actually occurred, right? Wbatever was
complained about may or may not have occurred; you don't
know, true?
Page 654
A. I personally don't know, that's true.
Q. And the statistics that you put together rely
upon that information, right?
A. They are based on allegations that are mile in
these reports.
Q. Okay. And with respect to how you categorize
them as a statistician, you rely on the tide that the
police officer filing out the report provides, correct?
A. Sometimes. Sometimes the title is somewhat
ambiguous.
Q. On any of these reports from which these
statistics were derived, did you study the reports to
determine whether or not, in fact, a particular type of
crime actually was alleged to have occurred?
A. I study the reports for the elements that are
listed in the reports. And N I [nay, let ice give you an
example.
Q. Yes.
A. In California if you take a — what is
commonly referred to as a booster bag into Albertson's
over here and you sisal a loaf of bread, for California
purposes that can be a burglary. Okay. But in UCR
parlance that is still a shoplift because Albertson's is
open. It's a simple distinction that, I guess, is only
lost in the legal profession and police officers. So
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Page 651;
i
i
A. Yes.
1
2
Q. Is it your understanding that Fury was not
2
3
open during those months?
3
4
A. I have no idea.
4
5
Q. Now, if Cm reading this correctly, is it
5
6
correct that you found that there were five simple
6
7
assaults in August, four in September, five in
7
8
October —
a
9
THE HEARING OFFICER: Sorry. Got to stop.
9
10
Somebody has got a phone or some thing. Please turn that
10
11
off because ifs going in keep going.
11
12
MR. JAMIESON: I don't know how to tarn it off.
12
13
THE HEARING OFFICER: Let your chief witness do it.
13
14
MS. AILIN: He is the chief technology officer.
14
15
BY MR. JAMIESON:
15
16
Q. Mr. Salenko, is it correct that in July there
16
17
were seven, August there were five, September there were
17
is
four, October there were five, November there was one
19
19
and in December there were five?
19
20
A Yes.
20
21
Q. For purposes of your testimony how do you
21
22
define burglary?
22
23
A. I'm sorry? Aburglary?
23
24
Q. Aburglary.
24
25
A. It's UCR definition is entering a structure,
25
Page 652
1
four walls, a roof kind of a thing with the intent to
1
2
commit a theft or any other felony.
2
3
Q. You have no — well, strike that
3
4
In your testimony about the number of part one
4
5
arrests and part two arrests you include burglary,
! 5
6
correct?
6
7
A. 1 never said arrests.
7
8
Q. What does -- what do these numbers reflect
8
9
about these crimes? Are they arrests? Are they
! 9
10
convictions or both?
10
11
A. They were crimes. Sometimes there are arrests
11
12
associated with crimes. Sometimes there area'[.
12
13
Q. Crime only occurs when there is a conviction;
13
14
isn't that true?
14
15
MS. AILIN: Objection; assumes facts not in
15
16
evidence and --
16
17
MR. JAMIESON: Let me withdraw it, and I will make
17
18
it a different question. That's all right.
is
19
Q. Mr. Salenko, here is my point, you are an
19
20
analyst of statistics, correct?
20
21
A. Yes.
21
22
Q And the statistics that you analyze include
22
23
reports that are made by police officers about things
23
24
that they have either observed or things that people
24
25
have told them about that they have not observed
25
I trayc5 0Dl L.0 oZ)YJ
Page 653
personally; would that be true?
A. Yes.
Q. And so for those things that a police officer
reports as having happened that the police officer did
not personally observe, that means that the report that
you looked at would rely on information that had been
provided to the police officer, correct?
MS. AILIN: Objection; vague and ambiguous.
BY MR JAMIESON:
Q. Is that true?
THE HEARING OFFICER: Overruled.
THE WITNESS: I guess, you are right. It is vague
and ambiguous, but somebody in the field tells an
officer this — X, Y and Z happened to me, they prepare
a document, a crime report, and that gets entered into
our system, yes, sir.
THE HEARING OFFICER: And the crime may or may not
have occurred?
THE WITNESS: Somebody alleged that it did. What
occurs after that I have no knowledge.
BY MR. JAMIESON:
Q. Okay. But that's the point, that it may or
may not have actually occurred, right? Wbatever was
complained about may or may not have occurred; you don't
know, true?
Page 654
A. I personally don't know, that's true.
Q. And the statistics that you put together rely
upon that information, right?
A. They are based on allegations that are mile in
these reports.
Q. Okay. And with respect to how you categorize
them as a statistician, you rely on the tide that the
police officer filing out the report provides, correct?
A. Sometimes. Sometimes the title is somewhat
ambiguous.
Q. On any of these reports from which these
statistics were derived, did you study the reports to
determine whether or not, in fact, a particular type of
crime actually was alleged to have occurred?
A. I study the reports for the elements that are
listed in the reports. And N I [nay, let ice give you an
example.
Q. Yes.
A. In California if you take a — what is
commonly referred to as a booster bag into Albertson's
over here and you sisal a loaf of bread, for California
purposes that can be a burglary. Okay. But in UCR
parlance that is still a shoplift because Albertson's is
open. It's a simple distinction that, I guess, is only
lost in the legal profession and police officers. So
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Page 657
A. Anything is possible, I guess.
Q. And they just happened to have been stopped
within reporting 34?
A. That's where they were arrested, that's true.
Q. And reporting District 34, that includes that
major thoroughfare MacArthur, right?
A. It bisects it, yes.
Q. Does it also include the freeway that's right
below that?
A. No.
Q. But it also includes those other major
highways and streets right around where the Fury Is
located, true?
A. Yes.
Q. Do you have any idea what the traffic count is
for that area?
A. No.
Q. With regard to the public intoxication
category that you testified about, the information which
you had from which you drew these statistics did not
identify where the people that were allegedly publicly
intoxicated became intoxicated, does it?
A. Some of the reports have — sometimes have an
indication of where the person was drinking, but for the
purpose of this report, I don't — didn't look into
Page 658
that.
Q. And for the purpose of this report, all this
identifies is that there were people that were allegedly
publicly intoxicated in reporting District 34, right?
A. Yes.
Q. And that would have been the entire geographic
area, not just in any particular store, restaurant or
parking lot, true?
A. True.
Q. Just m I'm dear, you don't have any
knowledge in the statistics that you have testified
about and the statistics you testified about don't
reflect on any of those four categories that you have
identified whether or not any of the people that were
the subject of those reports were ever actually
arrested, true?
A. I have no knowledge of where they were
drinking; is that what you are asking ne?
Q. No, whether or not the people that were the
subject of those reports were actually arrested. In
other words, there can be a crime report that you draw
your statistics from and the person or the people
involved may not have even been actually arrested, true?
A. Not true.
Q. They couldn't just be detained?
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1
sometimes the elements for a California burglary are
1
2
there in that regard.
2
3
Q. Now, you testified with regard to DUls, and
3
4
with regard to DUIs that were — that you testified
4
5
about for purposes of reporting District 34, do you know
5
6
how many alcohol licensees, businesses that are licensed
6
7
by the Department of Alcohol and Beverage Control
7
8
existed within that reporting district during 2007?
8
9
A. No.
9
10
Q. Do you know whether or not there was more
10
11
than one alcohol licensee in that repotting district?
11
12
A. I do not know.
12
13
Q. Are you aware — strike that
13
14
Did you look back through these police reports
! 14
15
that identified a DUI as part of its report as to
15
16
whether or not the person who was the subject of the DUI
16
17
was actually at any particular location?
j 17
18
A. No.
18
19
Q. Did you look to see whether or not the DUI
19
20
that is alleged to have occurred — strike that and
20
21
withdraw.
21
22
When you say a DUI is identified in this
22
23
reporting dfstricy are you saying that the police
23
24
report from which you got that Information reflects
24
25
that the person who was allegedly driving a vehicle
'--
25
--- ----- -'Page 656
1
while under the influence was stopped while in
1
2
reporting District 34?
2
3
A. Yes.
3
4
Q. You don't know as a statistician for purposes
4
5
of the information you put together and you testified
5
6
here today where that person that was alleged to have
6
7
been driving while intoxicated within reporting District
7
a
34 actually Ingested the alcohol that made them j
8
9
intoxicated, do you?
9
10
A. I'm sorry. I don't have a clue what you just
10
11
asked me.
11
12
Q. Certainly.
12
13
THE HEARING OFFICER: The answer would be no. Your
13
14
question was clear, and his answer — keep going.
14
15
MR JAMIESON: Okay. Well, I didn't get m answer,
15
16
though.
16
17
Q. The DUIs that reflect on this report, assuming
17
18
that the people were really driving while intoxicated
18
19
for this question, you don't know where they got
19
20
intoxicated, right?
20
21
A. No.
21
22
Q. Is that correct?
22
23
A. I do not.
23
24
Q. They could have been intoxicated and ingested
24
25
alcohol in a different city for that matter, right?
25
0 Iran. es 0» co 055H
Page 657
A. Anything is possible, I guess.
Q. And they just happened to have been stopped
within reporting 34?
A. That's where they were arrested, that's true.
Q. And reporting District 34, that includes that
major thoroughfare MacArthur, right?
A. It bisects it, yes.
Q. Does it also include the freeway that's right
below that?
A. No.
Q. But it also includes those other major
highways and streets right around where the Fury Is
located, true?
A. Yes.
Q. Do you have any idea what the traffic count is
for that area?
A. No.
Q. With regard to the public intoxication
category that you testified about, the information which
you had from which you drew these statistics did not
identify where the people that were allegedly publicly
intoxicated became intoxicated, does it?
A. Some of the reports have — sometimes have an
indication of where the person was drinking, but for the
purpose of this report, I don't — didn't look into
Page 658
that.
Q. And for the purpose of this report, all this
identifies is that there were people that were allegedly
publicly intoxicated in reporting District 34, right?
A. Yes.
Q. And that would have been the entire geographic
area, not just in any particular store, restaurant or
parking lot, true?
A. True.
Q. Just m I'm dear, you don't have any
knowledge in the statistics that you have testified
about and the statistics you testified about don't
reflect on any of those four categories that you have
identified whether or not any of the people that were
the subject of those reports were ever actually
arrested, true?
A. I have no knowledge of where they were
drinking; is that what you are asking ne?
Q. No, whether or not the people that were the
subject of those reports were actually arrested. In
other words, there can be a crime report that you draw
your statistics from and the person or the people
involved may not have even been actually arrested, true?
A. Not true.
Q. They couldn't just be detained?
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Page 659j
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1
A. The drunks and the DUls are arrests.
1
true?
2
Q. They couldn't just be detained? I
2
A. In the review process, that's true.
3
A. They are arrests.
3
Q. But you don't review everyone of these
4
Q. And there is a difference between detentions
4
reports — strike that.
5
and arrests, isn't there? I
5
You didn't review every one of these reports
6
A. Ina legal parlance these drunks and DUI%
6
that's referred to in your testimony for 2007, did you?
7
somebody actually put handcuffs on them and placed
7
A. I don't believe that I claimed that I had.
8
them in a police vehicle and brought them to the
a
Q. I'm just asking you, for purposes of the
9
station and hooked them.
9
record; is that correct?
10
Q. So any report that you looked at that
10
A. I did not review each and every one of these
11
reflected an alleged drunk driving or an alleged public
11
reports that the numbers are reflected here, that's
12
intoxication, you have personal knowledge that these
12
true.
13
people had handcuffs put on them and were brought to the
13
Q. So then you rely on these data input clerks to
14
station?
14
actually pull the information from these police reports,
15
A. That's how the reports get into the system,
15
right?
16
yes.
16
A. Yes.
17
Q. Well, the reports that the city has provided
17
Q. So you have to rely on the fact that the
18
here with respect to the incidents that the city is
18
police officer titles it correctly. You have to rely on
19
complaining about, at least so far, having to do with
19
the fact that the police officer has obtained
20
any public intoxication or things that happened, none of
20
information that is somewhat accurate. You have to rely
21
them reflect that they were arrested. Did you take a
21
on the fact that the people that have complained to the
22
look at these reports?
22
police officer about whatever the incident might be have
23
A I'm not sure which reports —
23
stated it accurately. You have to rely on the fact that
24
MS. AILiN: Objection
24
the data input clerk input it correctly. You have to
25
/ / /
25
rely on the fact that the computer system categorizes it
Page 660
Page 662
1
BY MR. JAMIESON:
1
correctly, and then you have to pull it out of the
2
Q. Let me try and make this a little more quick.
2
computer system after all that is done in a way that
3
Mr. Salenko, did you personally look at every one of the
3
allows you to testify as you did here today, right?
4
reports for the year 2007 that are included in your
4
A. Yes.
5
testimony that you have here today?
5
Q. So if any one of those steps is done
6
A. Probably not.
6
incorrectly, inaccurately or incompletely, it would
7
Q. So did you rely on somebody else reviewing
7
adversely affect the statistics that you pull from the
8
particular reports in 2007 from which you put your
8
system, true?
9
testimony together?
9
A. Possibly.
10
A. No, I compiled the numbers of the arrests and
10
Q. And what you do for the City of Newport Beach
11
the crimes in this reporting district.
11
in your professional capacity is all about accuracy and
12
Q. Where did the numbers come from?
12
making sure that it's correct, right?
13
A. Out of the computer system.
i 13
A. Yes.
14
Q. And who input them into the computer system?
14
Q. And statistics always have some type of margin
15
A. Our data input clerks.
15
of error as a result of all of what I just described,
16
Q. Where did the data input clerks get it from?
16
true?
17
A. From crime reports and arrest reports.
17
A. Yes.
18
Q. So it's actually the data input clerks that
18
Q. Thank you. I have nothing further.
19
then determine if what is input into the system is an
19
THE HEARING OFFICER: You don't have any nwre?
20
assault, an aggravated assault or a part one or part two
20
MR. JAMIESON: No.
21
crime; is that true?
21
THE HEARING OFFICER: Good. Fine. Thank you.
22
A. The officer titles the report.
22
MS. AILIN: I have a few questions.
23
Q. But as you testified, you sometimes took at
23
/1/
24
those reports to determine whether or not they are
24
/ /!
25
tided correctly or really what the report's about,
25
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FURTHER DIRECT EXAMINATION
1
Academy?
2
BY MS. AILIN:
2
A. I did.
3
Q. Mr. Salenko, you yourself were previously a
3
Q. Approximately when, sir?
4
sworn police officer?
4
A. July — I began in July of 1972.
5
A. Yes.
5
Q. While this question may sound facetious, it's
6
Q. And in order to became a sworn police
6
not meant to be. There were no computers being used at
7
officer, were you trained in how to do things like
7
that time in the police academy when you were trained as
8
complete a crime report?
e
a police officer, right?
9
A. Yes.
9
MS. AILIN: Objection; relevance.
10
Q. And is it your understanding that the Newport
10
MR. JAMIESON: I think - -1 think it's relevant.
11
Beach police officers are trained in how to complete a
11
Q. Were you trained in the use of computers when
12
crime report?
12
you went through the academy in '72?
13
A. Yes.
1 13
MS. AWN: Objection; relevance.
14
Q. And is it the case that Newport Beach police
14
THE HEARING OFFICER: Ion sorry. Its relevant.
15
officers are trained in how to talk to witnesses and
15
You raised the issue of his training. He has the right
16
assess the accuracy of their statements?
16
to ask for specifics about his training.
17
MR- JAMIESON: Objection; lacks foundation, calls
17
THE WITNESS: In 1972 -- I'm trying to — there
18
for speculation, hearsay.
18
were no classes specifically about computers,
19
THE HEARING OFFICER: We should put a wrap on this
19
that's true.
20
testimony quickly.
20
BY MR. JAMIESON:
21
MS. AILIN: Is that a ruling on the objection?
21
Q. You weren't trained when you went through the
22
THE HEARING OFFICER: Yes. Sustained.
22
police academy in computers and entering reports and
23
BY MS. AILIN:
23
keeping computer data and all that, were you?
24
Q. Are the data clerks who take the information
24
A. In documenting reports, yes. Where they went
25
from the reports prepared by the police officers trained
25
from there was out of my purview at that time.
Page 664
Page 666
1
in how to do that?
1
Q. But that's different than how things are
2
MR. JAMIESON: Objection; lacks foundation, calls
2
maintained in computers; true or not true? You weren't
3
for speculation, hearsay.
3
trained in computers back then. They didn't exist,
4
THE HEARING OFFICER: Overruled.
1 4
personal computers, all the computer statistics, you
5
THE WITNESS: Yes.
5
weren't trained as an LA.P.D. police officer going
6
BY MS. AILIN:
6
through the police academy in 1972, true?
7
Q. And were you trained in the gathering of crime
7
A. Well, I was trained, but there were no
8
statistics?
8
computer training classes at that time.
9
A. Yes.
9
Q. And therefore, you were not trained in
10
Q. Is the process by which you prepared the
10
computer data collection at that tune, true?
11
statistics you tested about today consistent with
11
THE HEARING OFFICER: Lees terminate this line of
12
your training and the data clerks' training?
12
questioning --
13
A. Yes.
1 13
MS. AILIN: Outside the scope of direct
14
MS. AILIN: I have no further questions.
14
THE HEARING OFFICER: -- the whole question did not
15
THE HEARING OFFICER: Okay.
15
start out when he was trained and so -- anything else?
16
MR. JAMIESON: Just a couple.
',. 16
MR. JAMIESON: No.
17
17
18
FURTHER CROSS - EXAMINATION
18
FURTHER REDIRECT EXAMINATION
19
BY MR, JAMIESON:
19
BY MS. AILIN:
20
Q. Mr. Saleuko, were you ever a Newport Beach
20
Q. Mr. Salenko, when were you trained in the use
21
police officer?
21
of computers to compile crime statistics?
22
A. No.
22
THE HEARING OFFICER: Let's assume he was trained
23
Q. Where were you a police officer?
23
during the course of his long career as a police
24
A. City of Los Angeles.
24
officer. He used computers and proceed.
25
Q. Went through the City of Los Angeles Police
25
MS. AI-IN: I have no further questions.
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Page 667
1
1
THE HEARING OFFICER: Thank you.
1
2
MR. JAMIESON: Your Honor, while we are between
2
3
witnesses, let me for the record also renew my objection
3
4
with regard to the testimony he gave based on the
4
5
documents we were not previously provided with and
5
6
therefore put us in a difficult adverse position as 1
6
7
previously stated.
7
8
THE HEARING OFFICER: Understand. The weight of
8
9
the testimony will be considered as well as its
9
1 o
importance to the overall subject.
10
11
MR. JAMIESON: So my objection is overruled?
11
12
THE HEARING OFFICER: Yes. What are we doing.
12
13
MS. AMIN: What we're doing next is moving at
13
14
least some of us into the conference room for testimony
14
15
from a couple of the officers who were undercover at the
15
16
time that they prepared their reports. 1 guess we'll go
16
17
off the record for a couple of minutes.
17
18
(Discussion ensued off the record.)
18
19
MS. All-IN: Officer Moore is here because he is
19
20
Officer Peterson's partner currently. I don't have a
20
21
problem with Mr. — with Officer Moore staying. If you
21
22
do, we can ask Officer Moore to leave.
22
23
MR. JAMIESON: He is not a witness?
23
24
MS. AILIN: He is not going to testify.
24
25
MR. JAMIESON: He doesn't know anything?
25
Page 668
1
MS. AILIN: That I can't speak to. Saying he
1
2
doesn't know anything is maybe going a little too far.
2
3
All right. Then well have the court reporter swear in
3
4
the witness.
4
5
5
6
ERIC PETERSON,
6
7
having been fast duly administered an
7
8
oath in accordance with CCP 2094, was
8
9
examined and testified as follows:
9
10
10
11
DIRECT EXAMINATION
11
12
BY MS. AUN:
12
13
Q. Please state and spell your name for the
13
14
record.
14
15
A. Eric Peterson, E -r -i -c P- e- t-e-r- s-o -n.
15
16
Q. And would you please tell us how you are
16
17
employed?
17
18
A. For the City of Newport Beach as a police
18
19
officer.
19
20
Q. How long have you been a police officer for
20
21
the City of Newport Beach?
21
22
A. Over seven years.
22
23
Q. And you me here today in uniform Have you
23
24
always been a uniformed officer for the Newport Beach
24
25
Police Department?
25
11 (rctyfz 6 DO/ UU D l V/
Page 669
A. No,
Q. Have you worked undercover?
A. Yes.
Q. When did you work undercover?
A. For the past five years until January of 2008.
Q. And what position were you assigned to when
you worked undercover?
A. Narcotics.
Q. What position are you currently assigned to?
A. Patrol.
Q. Officer —hold a second. We don't have the
other copy.
MR. JAMIESON: While they were all outside, admit
you were wrong, Officer?
THE WITNESS: Are we done? You didn't hear that.
THE REPORTER: I heard that. Do you want me to
write?
MS. AILIN: No, as long as you didn't write it,
that's fine.
THE WITNESS: See you later.
BY MS. AILIN:
Q. Officer Peterson, we have a document that the
city has marked as City's Exhibit 27, and I would like
you to take a look at — let's see — one, two, three,
four, five. The seventh and eighth pages of Exhibit 27,
Page 670
and have you seen those pages of Exhibit 27 before?
A. Yes.
Q. Are these two pages a report that you have
prepared in the course of your duties as a Newport Beach
police officer?
A. Yes, sir.
Q. When did the events that are covered in this
report occur?
A. It occurred on November 2nd 2007.
Q. And when did you prepare your report regarding
these events?
A. November 8, 2007.
Q. And is the report of the events based on your
observation ".
A Yes.
MS. AB.IN: And with that, I will move admission of
these two pages of Exhibit 27.
MR. JAMIESON: Place an objection on the basis it
calls for hearsay, calls for speculation, lacks
foundation, and Evidence Code section 1280 does not save
it from being inadmissible because it does not meet the
basis and foundational elements of section 1280 or any
other section
THE BARING OFFICER: I missed the comment as to
whether this was prepared pursuant to notes that were --
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Page 671
1
Page 673
1
MS. AILIN: I know, I didn't ask that question
1
MR-JAMIESON: Oh, wait. Pm sorry. Let me back
2
Q. Officer Peterson, was this report prepared —
2
up. I did forget one thing.
3
did you take notes about the events that occurred on
3
Q. There were no arrests reflected in the report,
4
November 2nd?
4
were there?
5
A. I did, and there was a recording as well.
5
A. No.
6
Q. And was this report prepared from your notes?
6
Q. And there were no detentions reflected in your
7
A. Yes.
7
report, were there?
8
Q. Have you retained those notes?
e
A. Correct.
9
A. I believe I have some, yes.
9
Q. And with respect to the observation in your
10
Q. Did you bring those with you today?
10
report about someone who you indicated was intoxicated,
11
A. No.
j 11
you did not have any conversation with that person, did
12
Q. You also mentioned a recording?
! 12
you?
13
A. Yes. First paragraph.
I 13
A. I did not.
14
Q. A recording of what?
14
Q. And you did not arrest or detain that person,
15
A. The phone calls, phone conversations.
15
did you?
16
Q. Did you listen to that recording in order to
16
A. I did not
17
prepare for your preparation of this report?
17
Q. And you don't know what happened to that
18
A. No, I knew what it — what we said. It was a
18
person at the close of business that night, do you?
19
very minor conversation, so I didn't need to.
19
A. Well, he was escorted prior to the close of
20
Q. And have you retained that report?
20
business, so after he was escorted out by the bouncers
21
A. Yes.
21
for his intoxication, that was it I didn't see him
22
THE HEARING OFFICER: So the report will be
22
anymore.
23
admitted noting Mr. Jamieson's objections.
23
Q. An employee of Fury — strike that.
24
MR. JAMIESON: And overrule my objection?
24
You observed the employees of Fury actually
25
THE HEARING OFFICER: Overruling your objections.
25
remove a person that they apparently concluded was
Page 672
Page 674
1
MS. AILIN: With that, I would make
1
2
Officer Peterson available for cross - examination.
2
3
3
4
CROSS - EXAMINATION
4
5
BY MR. JAMIESON:
5
6
Q. Is it correct that you arrived at about 9:10
6
7
for a nine o'clock reservation?
7
8
A. I was referring to the first paragraph, yes,
8
9
approximately 9:10, yes.
9
10
Q. And at that time your driver's license was
10
11
indeed swiped, correct?
! 11
12
A. Yeah, my undercover license.
1 12
13
Q. And you left the premises at what time?
13
14
A. We left at about 0145 hours, 1:45 in the
14
15
morning, approximately.
15
16
Q. Were you trained In your duties as a law
16
17
enforcement officer in writing your reports to reflect
17
18
those observations that you felt at the time were
18
19
relevant to your reasons for being at the scene?
19
20
A. Yes.
20
21
MR. JAMIESON: Nothing further.
21
22
MS. AILIN: We are setting a land speed record for
22
23
testimony today.
23
24
MR, JAMIESON: Isn't this great?
24
25
MS. AILIN: All right. Well, think --
25
intoxicated, correct?
A. Under — per my observations, yes.
Q. Per your observation?
A. That's because I have seen it many times, yes.
MR. JAMIESON: Nothing further. Sony it took so
long.
THE HEARING OFFICER: Yeah. Are these lines on
these reports, at least that I have, redactions or
highlights?
THE WITNESS: It looks like there is highlighting.
MS. AILIN: It looks like highlighting.
EXAMINATION
THE HEARING OFFICER: So could you quickly -- in
the middle of the second paragraph, there is some
highlighting about half way down that starts after
"ordered an appetizer," what does -- what is that next
sentence?
THE WITNESS: 9:35 p.m. 1 was advised by Kristian
that she had to put the last dinner order in at 9:45
p.m. 1 asked her why, and she said that she was part of
the bottle service shift on the other side of the
restaurant and that most of the tables are sold at 10:00
p.m.
THE HEARING OFFICER: Thanks. I'm sorry. At the
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1
top of the next page, the last sentence of that first
1
MATTHEW GRAHAM,
2
paragraph?
2
having been first duly administered an
3
THE WITNESS: The conversation was recorded. 1
3
oath in accordance with CCP 2094, was
4
THE HEARING OFFICER: It says "at approximately" on 1
4
examined and testified as follows:
5
the second page.
5
6
THE WITNESS: I'm sorry. At approximately 11:05
6
7
p.m. I observed several bouncers escort two very
7
DIRECT EXAMINATION
8
intoxicated individuals out of the establishment.
8
BY MS. AILIN:
9
THE HEARING OFFICER: Thank you.
( 9
Q. Please state and spell your name for the
lo
BY MR. JAMIESON:
10
record.
11
Q. By the way, Officer, did you test the level of
j 11
A. Matthew Graham, G-r- a- h -a -m.
12
intoxication in any of the people you observed that are
12
Q. And how are you employed?
13
reflected in your report as being intoxicated?
13
A. City of Newport Beach as a police officer
14
A. No.
14
assigned to a special investigations unit
15
Q. Did you actually observe them Ingest any
15
Q. How long have you been a police officer for
16
alcohol?
16
the City of Newport Beach?
17
A. No.
17
A. Approximately eight and a half years.
18
MR, JAMIESON: Thank you.
18
Q. And what does the special investigations unit
19
MS. AILIN: Just one quick question
19
do?
20
20
A. Vice, narcotics and intelligence.
21
FURTHER DIRECT EXAMINATION
21
Q. How long have you been in the special
22
BY MS. AILIN:
22
investigations unit?
23
Q. Officer Peterson, you were at Fury on November
! 23
A. Approximately 14 months.
24
2nd in an undercover capacity?
24
Q. Officer Graham, I would like to direct your
25
A. Yes.
25
attention to the binder that's on the table in front of
^ —1
-- _Page 676-
-__
Page 678
1
Q. If you had tested patrons for intoxication,
1
you and in particular to Exhibit 27 and in particular to
2
how would that have Impacted your undercover capacity?
2
the last two pages of Exhibit 27. Have you seen those
3
A. It would have exposed it
3
two pages before?
4
MR. JAMIESON: Now I have got a question.
4
A. I have.
5
5
Q. Is that a report you prepared in the course of
6
FURTHER CROSS-EXAMINATION
6
your duties as a Newport Beach police officer?
7
BY MR. JAMISON:
7
A. Yes, it is.
8
Q. So, Officer, when you are in an undercover
8
Q. When did the events that are reflected in this
9
capacity in any of your investigations, for any
9
report occur?
10
particular premises, including Fury, if you observed a
10
A. November 2nd, 2007.
11
crime occur, generally you would then call in someone
11
Q. And when was the report prepared?
12
who is a uniformed officer to make the arrest, make the
12
A. On November 6, 2007.
13
detention, do whatever is necessary so as not to blow
13
Q. in the course of observing the events that are
14
your cover, correct?
14
covered by this report, did you take any notes?
15
A. Right.
15
A. I did.
16
Q. You didn't do that on December 2nd at Fury
16
Q. Did you use those notes in the preparation of
n
that night, did you?
17
this report?
18
A. Correct.
! 18
A. Yes.
19
MR. JAMIESON: Nothing further.
19
Q. Have you retained your notes?
20
MS. AILIN: Let's go offthe record a minute and
j 20
A. No.
21
see if our next witness is here yet.
21
MS. AILIN: I move Exhibit — the last two pages of
22
THE HEARING OFFICER: Good.
22
Exhibit 27 into evidence.
23
(Discussion ensued offthe record.)
23
MR. JAMIESON: Objection; calls for speculation,
24
/ / /
24
lacks foundation, and it calls for hearsay, Evidence
25
/ / /
25
Code section 1280, the foundational elemmis are not
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1
satisfied, admissibility based on hearsay, and on that
1
A. January 25th, 2008.
2
basis we object to the admission of the document.
2
Q. When did you prepare the report?
3
THE HEARING OFFICER: Overruled, and the document
3
A. January 30, 2008.
4
is admitted.
4
Q. Did you take notes of the events that occurred
5
(City's Exhibit 27 was
5
on January 25th?
6
admitted into evidence and is
6
A. Yes.
7
bound under separate cover.)
7
Q. Did you use them in the preparation of this
8
BY MS. AILIN:
8
report?
9
Q. Officer Graham, next I would like to direct
9
A. Yes.
10
your attention to Exhibit 28 in the binder and in
10
MS. AILIN: I move these two pages of Exhibit 29
11
particular to the sixth and seventh pages of Exhibit 28.
11
into evidence.
12
Have you seen these two pages before?
12
MR. JAMIESON: Objection; based on speculation,
13
A. Yes.
13
calls for speculation, calls for hearsay, lacks
14
Q. Is this a report that you prepared in the
14
foundation, Evidence Code 1280 does not save this
15
course and scope of your duties as a police officer?
15
document from inadmissibility, lacks the foundational
16
A. yes.
.i 16
elements of section 1280.
17
Q. When did the events that are described in this
17
THE HEARING OFFICER: Overruled. The document is
18
report occur?
! 18
admitted.
19
A. On November 9, 2007.
19
(City's Exhibit 29 was
20
Q. When did you prepare the report?
20
admitted into evidence and is
21
A. November 13, 2007.
21
bound under separate cover.)
22
Q. Did you take notes regarding the events that
22
BY MS. AILIN:
23
occurred on November 9?
23
Q. Mr. Graham, please turn to Exhibit 31 in the
24
A. Yes, I did.
24
binder in front of you and in particular to the fifth
25
Q. Did you use those notes in the preparation of
25
and sixth pages of Exhibit 31. Have you seen these two
Page 660
Page 682
1
this report?
1
pages before?
2
A. Yes,
2
A. Yes.
3
Q. Have you retained those notes?
3
Q. Is this a report that you prepared in the
4
A. No.
4
course and scope of your duties as a Newport Beach
5
MS. AILIN: Move these two pages of Exhibit 28 into
5
police officer?
6
evidence.
6
A. Yes.
7
MR. JAMIESON: Same objections as stated
7
Q. When did the events occur?
8
previously.
8
A. January 31, 2008.
9
THE HEARING OFFICER: Overruled, and the document
9
Q. When did you prepare the report?
10
is admitted.
10
A. February 1, 2008.
11
(City's Exhibit 28 was
11
Q. Did you take any notes about the events that
12
admitted into evidence and is
12
occurred on January 21?
13
bound under separate cover.)
13
A. Yes.
14
BY MS. AILIN:
14
Q. Did you use those notes in preparation of this
15
Q. Officer Graham, would you please turn to
15
report?
16
Exhibit 29 In the binder in front of you, and I would
16
A. Yes.
17
direct your attention to the last two pages of Exhibit
17
Q. Did you retain those notes?
18
29. Have you seen these two pages before?
18
A. No.
19
A. Yes.
19
MS. AILfN: I will move this portion of Exhibit 31
20
Q. Is this a report that you prepared in the
20
in evidence.
21
course and scope of your duties as a Newport Beach
21
MR. JAMIESON: Objection; calls for speculation,
22
police officer?
22
lacks foundation, calls for hearsay evidence. Evidence
23
A. Yes.
23
Code section 1280 does not save it, and in addition to
24
Q. When did the events described in this report
24
that the document that was provided by the city was
25
occur?
25
referenced to Exhibit 31 is completely redacted, so it
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1 does not mention Detective Graham in any way that I can j 1
2
see, and, therefore, puts the respondent in the position
2
3
of being unable to adequately prepare for I
3
4
cross - examination and for identification of the document
4
5
and to request further documentation requesting backup
5
6
information, et cetera
6
7
MS. AILIN: The unredwted version of this report
7
e
was e- mailed to Mr. Jamieson before we started the
8
9
admission of evidence. I'm happy to lend him my copy of
9
10
the unredacted copy of that report
10
11
MR. JAMIESON: The notebook binder -- I appreciate
11
12
that if that happened, but the notebook binders that
12
13
were provided by the city attorney's office did not
13
14
reflect that
14
15
MS. AaJ N: The umedacted report was e- mailed to
15
16
you the day after I sent -- the day after -- I'm trying
16
17
to remember whether I sent the binder to you by
17
IS
messenger. I believe I did, and it was either the same
18
19
day that the binder was sent to you or the following day
19
20
that the umedacted report was sent to you, and I
20
21
believe I also e- mailed it to our hearing officer, who
21
22
appears to have iL
. 22
23
THE HEARING OFFICER: Apparently you did because I
23
24
have a clean copy in my notebooks.
24
25
MR. JAMIESON: Well, then we did not put that into
25
Page 684
1
the binder, and I apologize. Thank you for letting me
1
2
use that. I will use that in my cross - examination.
2
3
THE HEARING OFFICER: Then rll overrule
3
4
Mr. Jamieson's objection and admit the report into
4
5
evidence with the proviso that Mr. Jamieson will be
5
6
given the requisite amount of time to review the one
6
7
paragraph or two paragraphs in the report before we
7
8
proceed with testimony.
8
9
MS. AILIN: And with that, I pass the witness to
9
10
Mr. Jamieson for cross- examination.
10
11
(City's Exhibit 31 was
11
12
admitted into evidence and is
12
13
bound under separate cover.)
13
14
14
15
CROSS - EXAMINATION
1 15
16
BY MR- JAMIESON:
16
17
Q. Officer, let me direct your attention to
17
18
Exhibit 27 and that portion of which reflects your name
18
19
on it, whatever page numbers those are. That consists
19
20
of two pages of Exhibit 27,1 believe; do you see that?
20
21
A. Yes.
21
22
Q. And is it correct that you observed the people
22
23
working at the door of the Fury to exclude people that
23
24
were waiting in line or least to stop them from coming
24
25
in as a result of what was stated by the Fury employees
25
15 (Pages 683 to 686)
Page 685
as being a full location? They were full, and they
weren't letting people in as a result, correct? That
was a long convoluted way of saying that.
Were you observing these people not to let the
people in line in because it was apparently full inside?
A. Unless they were the prepaid bottle service.
Q. But otherwise it was because their occupancy
level was counted; is that right?
A. That's what they were saying, yes.
THE HEARING OFFICER: Could you clarify that
statement you made, prepaid what?
THE WITNESS: Prepaid bottle service.
THE HEARING OFFICER: What is your interpretation
of what that means?
THE WITNESS: That they would allow people to enter
as long as they paid up front for what they call bottle
service. Other than that, they said that they were
full.
THE HEARING OFFICER: Prepaid at the time at the
location?
THE WITNESS: They can prepay while in line. They
can pay, and then they were allowed to go in If they
did not, then they were mined away.
BY MR. JAMIESON:
Q. Or they had to wait longer?
Page 686
A. That was my understanding, yes.
Q. Now, at that time when you entered, is it
correct, then, that you were given a full — what
you identified in your report as a full menu from
the bartender?
A. Initially, yes.
Q. And later on you were given a different menu
than the first one that you got, right?
A. Correct, I placed an order off the full menu
and then was told that that menu was no longer being
used.
Q. Did you order food both times?
A. Yes, I did. I bad to change my order.
Q. And you were served food, correct?
A. Yes.
Q. In your report for November 2nd 2007, you
make a statement that you observed one female to be
intoxicated. Do you see that mentioned in your report?
A. Which paragraph?
Q. It's on the second page, top paragraph in the
back on the bottom. Does that refresh your recollection
in looking at it?
A. I'm still looking to find where you're at.
Q. Second page.
A. Yes.
Precise Reporting Service
714 - 647 -9099
3.0
FURY REVOCATION HEARING - 4/22/2008
16 (Pages 687 to 690)
Page 689
half.
THE HEARING OFFICER: Newport Beach for eight
yam?
THE WITNESS: Yes, sir.
BY MR. JAMIESON:
Q. Where were you an officer before that?
A. I was a deputy sheriff San Bernardino County.
I was a deputy marshal San Bernardino County. I was a
police officer in the State of Arkansas for two
different police departments.
Q And the entire span of your law enforcement
career was for 14 years?
A Yes, sir.
Q. With regard to any reference to people being
intoxicated that night, is it correct that on no
occasion that night did you issue citations or cause
citations to be issued either to people you believed to
be intoxicated or to the premises themselves?
A. I did not
Q. Is that correct?
A. Yes.
Q. All right Let me direct your attention to
Exhibit 28, your portion of Exhibit 28, which is your
two pages reflecting your visit there on November 9.
Are you with me?
Page 690
A. Yes, I am
Q. Now, on that particular occasion upon your
request of how late the premises served dinner when you
asked the hostess, upon making dinner reservations on
the phone you were told they were open until 12:45 a.m.?
A. I was told that they served dinner until
12:45.
Q. But a reservation up until when?
A. 8:30 p.m
Q Did you record the conversation?
A. Yes, I did.
Q. Are the recordings still maintained?
A Yes, they should be.
MS. PARKER: Sony, gentlemen, it appears we lost
you for a few moments.
MR. JAMIESON: What?
MS. PARKER: We lost you for a few moments.
MR. JAMIESON: Did you record the conversation, and
the officer said, yes, he did.
MS. PARKER: Record rather than hear?
MR. JAMJESON: Right, record And then the
question was, is the recording of that conversation
still maintained.
Q. And, Officer, you said that yes, it is?
A. I believe, yes.
Precise Reporting Service
714- 647 -9099
3 -4
Page 687
1
Q. Is it correct that you did not test her in any
1
2
way for her level of intoxication?
2
3
A. I did not
3
4
Q. Is it correct that you did not call in any
4
5
uniformed officer to in any way detain or arrest that
5
6
person that you observed?
6
7
A. I did not
7
8
Q. Is that correct?
8
9
A. Yes.
9
10
Q. Is it correct that you did not either issue a
10
11
citation to the premises, nor cause a citation to be
11
12
issued to the premises for having any intoxicated
12
13
persons on the premises that night?
13
14
A. I did not.
14
15
Q. Is that correct?
15
16
A. Yes.
16
17
Q. And I'm sure based on your education,
17
18
experience and training as a vice officer you understood
18
19
that you could, in fact, issue a citation to an alcohol
19
20
licensee for having intoxicated people on the premises
20
21
and for serving intoxicated people, correct?
21
22
A. I know there are repercussions, correct
22
23
Q. You know you can issue a citation for that,
23
24
criminal citation?
24
25
A. It's not in our practice that we do that that
25
Page 688
1
I'm aware of.
1
2
Q. You are not aware that that can happen?
2
3
A. 1 am not I don't usually work much vice.
3
4
Q. I'm sorry. February 2nd, 2007 on your visit
4
5
to the Fury that night, how often had you worked vice?
5
6
A. I wasn't necessarily at the Fury in a vice
6
7
operation at any time.
7
8
Q. Had you worked vice before November 2nd in any
8
9
capacity? You said you don't often work vice?
9
10
A. No, I'm a narcotics detective primarily.
10
11
Q. Prior to November 2nd, 2007 bad you worked
11
12
vice in terms of an alcohol licensee to determine
1 12
13
whether or not any alcohol - related violations had
! 13
14
occurred?
14
15
A. I have not worked vice at an alcohol
15
16
establishment I have worked A. B type issues at
16
17
alcohol establishments, but — I guess I have prior to
17
18
that.
18
19
Q. That's what I'm saying. How many times? Five
19
20
times, once, twice?
20
21
A. About a half dozen times I would say.
21
22
Q. And you have been an officer for eight and a
22
23
half years; is that right?
23
24
A. I've been an officer for over 14 years.
24
25
Q. I'm sorry. I thought I heard eight and a
25
16 (Pages 687 to 690)
Page 689
half.
THE HEARING OFFICER: Newport Beach for eight
yam?
THE WITNESS: Yes, sir.
BY MR. JAMIESON:
Q. Where were you an officer before that?
A. I was a deputy sheriff San Bernardino County.
I was a deputy marshal San Bernardino County. I was a
police officer in the State of Arkansas for two
different police departments.
Q And the entire span of your law enforcement
career was for 14 years?
A Yes, sir.
Q. With regard to any reference to people being
intoxicated that night, is it correct that on no
occasion that night did you issue citations or cause
citations to be issued either to people you believed to
be intoxicated or to the premises themselves?
A. I did not
Q. Is that correct?
A. Yes.
Q. All right Let me direct your attention to
Exhibit 28, your portion of Exhibit 28, which is your
two pages reflecting your visit there on November 9.
Are you with me?
Page 690
A. Yes, I am
Q. Now, on that particular occasion upon your
request of how late the premises served dinner when you
asked the hostess, upon making dinner reservations on
the phone you were told they were open until 12:45 a.m.?
A. I was told that they served dinner until
12:45.
Q. But a reservation up until when?
A. 8:30 p.m
Q Did you record the conversation?
A. Yes, I did.
Q. Are the recordings still maintained?
A Yes, they should be.
MS. PARKER: Sony, gentlemen, it appears we lost
you for a few moments.
MR. JAMIESON: What?
MS. PARKER: We lost you for a few moments.
MR. JAMIESON: Did you record the conversation, and
the officer said, yes, he did.
MS. PARKER: Record rather than hear?
MR. JAMJESON: Right, record And then the
question was, is the recording of that conversation
still maintained.
Q. And, Officer, you said that yes, it is?
A. I believe, yes.
Precise Reporting Service
714- 647 -9099
3 -4
FURY REVOCATION HEARING - 4/22/2008
Page 692;
1
Page 691
1
1
Q. By the way, where is that recording maintained
1
2
with the police department? Who maintains possession
2
3
and control of that?
3
4
A. Either on my computer or in my desk.
4
5
Q. Were you ever made aware that there was a
5
6
public records request for recordings concerning these
6
7
investigations?
7
8
A. I was not
8
9
Q. Nobody ever asked you in the police department
9
10
or the city for a copy of the recording; is that right?
10
11
A. That's correct
11
12
Q. Is it correct, Officer, that throughout that
12
13
evening you neither issued any citations nor made any
13
14
detentions or arrests of anybody or anything?
14
15
A. That is correct
15
16
Q. By the way, what caused you to go to the Flurry
16
17
that night on November 9? Were you called there by a
17
18
member of the public?
18
19
A. No,
19
20
Q. Were you told by somebody within the police
20
21
department to go there?
21
22
A We were conducting a bar night, yes.
22
23
Q. Did somebody within the police department
23
24
actually tell you to go?
24
25
A. My supervisor.
25
Page 692;
1
Q. Who was that at the time?
1
2
A. Sergeant Vallercamp.
2
3
Q. Did Sergeant Vallercamp tell you why he wanted
i 3
4
you to go that particular night?
I 4
5
MS. AaJN: Objection; calls for hearsay.
5
6
THE HEARING OFFICER: Overruled.
6
7
THE WITNESS: Can you restate your question, sir?
7
8
BY MR. JAMIESON:
e
9
Q. Sure, did Sergeant Vallercamp tell you why he
9
10
wanted you to go that particular night?
10
11
A. I don't recall why that particular night,
11
12
no.
12
13
Q. Let me direct your attention to Exhibit 29
13
14
and that portion of Exhibit 29 that is the one that you
14
15
indicated you prepared, the last two pages of Exhibit
15
16
29. Do you have that in front of you, sir?
16
17
A. Yes.
17
18
Q. On that particular night your report does not
18
19
indicate that you attempted to make any reservations; is
19
20
that true?
20
21
A. That's true.
21
22
Q. Is it also correct that — let me withdraw it
22
23
Did you ever enter the premises that night?
23
24
A I did not
24
25
Q. You were outside the entire time; is that
25
17 (Pages 691 to 694)
Page 693
true?
A. Yes.
Q. In the parking lot in which you were stationed
there were two other business establishments; is that
right? There is a total of three that share that
parking lot, true?
A. Yes.
Q. Now, there is some mention of a count out in
your report, Exhibit 29, which is the January 25th of
200& You did not issue a citation for any type of
overcrowding, did you?
A. I did not
Q. And you did not observe a citation that was
issued for any type of overcrowding that night, did you?
A. I did not physically we one, no.
Q. Now, the people that you observed on the
outside of Fury that you stated you felt they were
intoxicated, it is also correct that you did not test
their intoxication, make any detentions or make any
arrests; is that true?
A. Tkat's true.
Q. And with respect to the people that you
observed outside, they got into either a limousine or a
taxi and did not drive away themselves; is that right?
A. That's correct
Page 694
Q. And you have no knowledge of how much, if any,
alcohol those people that you observed had to drink
within Fury or elsewhere that night; is that true?
A. Yes.
Q. All right Let me direct your attention to
Exhibit 31.
THE HEARING OFFICER: Can I just ask one question
about this report? Back on the first page down at the
bottom there is an indication in the last sentence, "I
observed this employee telling patrons it was a $20
cover charge and accepting cash prior." This was on a
previous visit, not this one, right?
THE WITNESS: Every occasion that 1 was at Fury
that that same subject was working, I observed that.
THE HEARING OFFICER: Observed what?
THE WITNESS: That subject asking for cover
charges except for the one occasion when there was no
line and I arrived early via a reservation.
THE HEARING OFFICER: I'm curious about your
comment from countless people who circumvented the
lines. What did you mean by that?
THE WITNESS: I spent an hour and a half on that
evening at the front of the line and was never allowed
to enter. Other people came up and gave the doorman
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FURY REVOCATION HEARING - 4/22/2008
to trot'=s Qom. a, c,vj
Page 697
night of January 31, 2008 while you were there?
A. January 31?
Q. Right.
A. I would have to refer to my report.
Q. Why don't you take a look at your report?
A. I believe — could you restate your question?
I'm sorry.
Q. Sure. Let me ask you this: You have had an
opportunity to review your report in response to my
previous question, correct?
A. Yes.
Q. And is it correct that your report does not
reflect the presence of any other officers; is that
true?
A. They are not stated in my report' no.
Q. So is that correct?
A. That's correct.
Q. So my question is, were there other officers
present that night while you were there at Fury on
January 3l?
A. Yes, there were.
Q. What other officers, to your recollection,
were actually present that night?
A. Detective Hayward, Detective Joe.
Q. Anyone else?
Page 698
A. I believe Sergeant Vallercamp.
Q. Anybody else that night?
A. I don't recall.
Q. Now, you did say that your supplemental report
went with the main report, I guess, of the handling
detective, Detective Jones. Was Detective Jones
there?
A. I believe he was.
Q. We heard from Detective Jones the gentleman he
hung out with was Detective Stark. Does that refresh
your recollection? Was Detective Stark there?
A. I don't recall if Detective Stark was there
that night or not.
Q. And on January 31st your report reflects that
you were at no time inside and always outside the
premises; is that true?
A. Yes.
Q. It also seems to reflect that your assignment
was to monitor the parking lot and outside the area of
Fury and upon arrival you observed many open parking
spaces; do you see that?
A. Yes.
Q. And then you also state here, "Most of these
spaces remained open throughout the night due to a
tight, unusual turnout; is that true?
Precise Reporting Service
714 - 647 -9099
3'11�
Page 695
1
cash and were allowed to enter circumventing the line.
1
2
THE FEARING OFFICER: Did you draw the conclusion
ll 2
3
if you had given him 20 bucks you could enter, tool
3
4
THE WffNESS: That was my conclusion. Md that
4
5
was what had happened on a previous account.
5
6
BY MR. JAMIESON:
6
7
Q. Officer, with respect to that particular
7
8
issue, is it correct, then, that on all the occasions
8
9
that you went to Fury, the several you have identified
9
10
here in this report, the only person that you saw
10
11
engaged in that type of activity was the some male Asian
11
12
that you have identified?
12
13
A. Yes, sir.
13
14
Q. And there were a lot of other security people
14
15
that were working the door and walking around and
15
16
things?
16
17
A. He was the one controlling the line.
17
18
Q. But there were a lot of other people that were
18
19
security people or employed security that were walking
19
20
around and swiping I.D. and doing things?
20
21
A. Correct.
21
22
THE HEARING OFFICER: Were they letting people go
22
23
in as well or was itjust this one person?
23
24
THE WITNESS: This individual was the one
24
25
controlling the line.
25
Page 696
1
THE HEARING OFFICER: I have nothing further.
1
2
MIL. JAMESON: Thank you.
2
3
Q. There was no sign up anywhere that said
i 3
4
anything about a $20 cover charge f gather; is that
4
5
true?
5
6
A. That's true.
6
7
Q. Now, let me direct your attention to Exhibit
7
8
31. Now, the two pages of your report, this one is
j 8
9
for January 31; is that right?
( 9
10
A. Correct.
10
11
Q. Officer, when the form that you choose to fill
11
12
out says supplemental report, hyphen, field, does that
12
13
mean, then, that there was, in fact, a main report of
13
14
some sort that was done for something that happened that
14
15
day ".
15
16
A. My supplemental report is to accommodate and
! 16
17
go with Detective Jones who is the primary handling
17
18
detective.
18
19
Q. I see. What does it means to be the primary
19
20
handling detective?
20
21
A. He was the one that took the crime report, so
21
22
he was the handling officer. I wrote a supplemental
22
23
report to go along with his primary report, which was a
23
24
crime report.
24
25
Q. What other officers, if any, were present that
25
to trot'=s Qom. a, c,vj
Page 697
night of January 31, 2008 while you were there?
A. January 31?
Q. Right.
A. I would have to refer to my report.
Q. Why don't you take a look at your report?
A. I believe — could you restate your question?
I'm sorry.
Q. Sure. Let me ask you this: You have had an
opportunity to review your report in response to my
previous question, correct?
A. Yes.
Q. And is it correct that your report does not
reflect the presence of any other officers; is that
true?
A. They are not stated in my report' no.
Q. So is that correct?
A. That's correct.
Q. So my question is, were there other officers
present that night while you were there at Fury on
January 3l?
A. Yes, there were.
Q. What other officers, to your recollection,
were actually present that night?
A. Detective Hayward, Detective Joe.
Q. Anyone else?
Page 698
A. I believe Sergeant Vallercamp.
Q. Anybody else that night?
A. I don't recall.
Q. Now, you did say that your supplemental report
went with the main report, I guess, of the handling
detective, Detective Jones. Was Detective Jones
there?
A. I believe he was.
Q. We heard from Detective Jones the gentleman he
hung out with was Detective Stark. Does that refresh
your recollection? Was Detective Stark there?
A. I don't recall if Detective Stark was there
that night or not.
Q. And on January 31st your report reflects that
you were at no time inside and always outside the
premises; is that true?
A. Yes.
Q. It also seems to reflect that your assignment
was to monitor the parking lot and outside the area of
Fury and upon arrival you observed many open parking
spaces; do you see that?
A. Yes.
Q. And then you also state here, "Most of these
spaces remained open throughout the night due to a
tight, unusual turnout; is that true?
Precise Reporting Service
714 - 647 -9099
3'11�
FURY REVOCATION HEARING - 4/22/2008
.L7 teayes n77 Lo hut/
Page 701
that you believe that that subject removed an unknown
illegal substance from his sock, you don't know if
whatever he rearmed from his sock was, in fact, illegal
or not, do you?
A. I just stated a note, "object from his sock,"
right.
Q. But you also say an unknown illegal substance,
but you do not know what that substance was for sure, do
you?
A. I have no idea.
Q. So what I said is correct?
A. Yes.
Q. And apparently by 12:00 midnight It was a
pretty empty parking lot; is that true, according to
your report?
A. From my report we left at 1:00, and I did a
walk through the parking lot at approximately midnight,
and there still were cars, and several were occupied
Q. Okay. Now, with respect to what you write in
your report, that being Exhibit 31 that you just got
A6901hlking about as well as Exhibit 29, 28 and 27, as
part of your education, training and experience as a
police officer and that would include both things that
you have been trained to do while a Newport Beach police
officer as well as in those other law enforcement
Page 702
positions that you testified having the experience for,
you attempt to include in your report your observations
for those things that you feel are relevant and
important given your task for which you were there for
that night, correct?
A. Yes, sir.
MR. IAMIESON: I have nothing further.
MS. AB.IN: I just have a couple of questions.
FURTBER DIRECT EXAMINATION
BY MS. AILIN:
Q. Officer Graham, on all the visits to Fury that
are reflected in these police reports we have been
talking about, were you there in an undercover capacity?
A. I was.
Q. If you had tested someone for intoxication,
what would that have done to your undercover capacity?
A. It would have given up my identification and
my I.D.
Q. If you would have arrested anyone, what would
that have done to your undercover capacity?
A. Same thing.
Q. If you had issued a citation to anyone, what
would that have done to your undercover capacity?
A. Same thing.
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714 - 647 -9099
Page 6991
1
A. Yes.
1
2
Q. And the parking lot that you are referencing
2
3
here in your report, is this the parking lot that is
3
4
shared by Fury and the other two businesses?
4
5
A. In a sense, yes.
5
I
6
Q. When you say in a sense, this is the street
6
7
level parking that has at one edge MacArthur Boulevard,
7
8
has Fury at roughly the south edge, and there are two
8
9
other major businesses that share that parking lot,
9
10
true?
10
11
A. They all use that one, yes.
11
12
Q. And that's the parking lot you were talking
12
13
about?
13
14
A. Yes.
14
15
Q. Now, you are aware that there is a multiple
15
16
level parking structure adjacent to that parking lot,
16
17
right? You are aware of that?
17
18
A. Yes, tt's further down.
18
19
Q. Now, you make reference in this report to a
19
20
male driver returning to his vehicle, opening his driver
20
21
door, puts his left foot inside and removes an unknown s1i1.5al
21
22
object from his left sock; do you see that?
! 22
23
A. Yes, sir.
! 23
24
Q. That person was somebody you observed actually
24
25
arrive and park in the parking lot at Fury and then
! 25
.L7 teayes n77 Lo hut/
Page 701
that you believe that that subject removed an unknown
illegal substance from his sock, you don't know if
whatever he rearmed from his sock was, in fact, illegal
or not, do you?
A. I just stated a note, "object from his sock,"
right.
Q. But you also say an unknown illegal substance,
but you do not know what that substance was for sure, do
you?
A. I have no idea.
Q. So what I said is correct?
A. Yes.
Q. And apparently by 12:00 midnight It was a
pretty empty parking lot; is that true, according to
your report?
A. From my report we left at 1:00, and I did a
walk through the parking lot at approximately midnight,
and there still were cars, and several were occupied
Q. Okay. Now, with respect to what you write in
your report, that being Exhibit 31 that you just got
A6901hlking about as well as Exhibit 29, 28 and 27, as
part of your education, training and experience as a
police officer and that would include both things that
you have been trained to do while a Newport Beach police
officer as well as in those other law enforcement
Page 702
positions that you testified having the experience for,
you attempt to include in your report your observations
for those things that you feel are relevant and
important given your task for which you were there for
that night, correct?
A. Yes, sir.
MR. IAMIESON: I have nothing further.
MS. AB.IN: I just have a couple of questions.
FURTBER DIRECT EXAMINATION
BY MS. AILIN:
Q. Officer Graham, on all the visits to Fury that
are reflected in these police reports we have been
talking about, were you there in an undercover capacity?
A. I was.
Q. If you had tested someone for intoxication,
what would that have done to your undercover capacity?
A. It would have given up my identification and
my I.D.
Q. If you would have arrested anyone, what would
that have done to your undercover capacity?
A. Same thing.
Q. If you had issued a citation to anyone, what
would that have done to your undercover capacity?
A. Same thing.
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engaged in that conduct that you just described in your
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report on the way into Fury, right?
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A. Yes.
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Q. You didn't see him coming out of Fury?
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A. I did not.
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Q. You didn't see him at any time in Fury that
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night before the observations that you have referenced
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A. I'm not clear on that question.
9
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Q. It's probably too long and convoluted. Let me
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shorten it up.
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Officer, the person that you state in your
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report as observing the conduct, putting one foot inside
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14
the car, et cetera, prior to that happening you never
14
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saw that person inside Fury, right?
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A. No, I've never seen him.
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Q. And, in fact, you drew the conclusion that +
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this was somebody that bad come from some other
18
19
location, pulled up in the parking lot, parked in the
19
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lot and intended to go to Fury, started walking to Fury,
20
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decided they better take whatever it was in their sock 1
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22
and put it in their car and before they got to Fury.
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23
They did those things, correct?
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A. Yes.
24
25
Q. And although you rendered this observation _
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.L7 teayes n77 Lo hut/
Page 701
that you believe that that subject removed an unknown
illegal substance from his sock, you don't know if
whatever he rearmed from his sock was, in fact, illegal
or not, do you?
A. I just stated a note, "object from his sock,"
right.
Q. But you also say an unknown illegal substance,
but you do not know what that substance was for sure, do
you?
A. I have no idea.
Q. So what I said is correct?
A. Yes.
Q. And apparently by 12:00 midnight It was a
pretty empty parking lot; is that true, according to
your report?
A. From my report we left at 1:00, and I did a
walk through the parking lot at approximately midnight,
and there still were cars, and several were occupied
Q. Okay. Now, with respect to what you write in
your report, that being Exhibit 31 that you just got
A6901hlking about as well as Exhibit 29, 28 and 27, as
part of your education, training and experience as a
police officer and that would include both things that
you have been trained to do while a Newport Beach police
officer as well as in those other law enforcement
Page 702
positions that you testified having the experience for,
you attempt to include in your report your observations
for those things that you feel are relevant and
important given your task for which you were there for
that night, correct?
A. Yes, sir.
MR. IAMIESON: I have nothing further.
MS. AB.IN: I just have a couple of questions.
FURTBER DIRECT EXAMINATION
BY MS. AILIN:
Q. Officer Graham, on all the visits to Fury that
are reflected in these police reports we have been
talking about, were you there in an undercover capacity?
A. I was.
Q. If you had tested someone for intoxication,
what would that have done to your undercover capacity?
A. It would have given up my identification and
my I.D.
Q. If you would have arrested anyone, what would
that have done to your undercover capacity?
A. Same thing.
Q. If you had issued a citation to anyone, what
would that have done to your undercover capacity?
A. Same thing.
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FURY REVOCATION HEARING - 4/22/2008
Page 703
MS. AILIN: No further questions.
FURTHER CROSS - EXAMINATION
BY MR. JAMIESON:
Q. Officer, just so we are clear on the record,
when you are in an undercover capacity whether it be at
Fury or someplace else, you certainly know that you can
and perhaps do at times call in uniformed police
officers to make detentions, to make arrests, issue
citations or protect people that you feel are
potentially a danger to themselves or others, right?
A. I am aware of that.
Q. Thank you. And you didn't do that that night,
did you?
A. Which night are you referring to?
Q. That's fine. I will withdraw it. Thank you.
THE HEARING OFFICER: Are we through with
Detective Grab=?
MS. A[LIN: Unless the hearing officer has some
THE HEARING OFFICER: I don't have any, no. Thank
you.
GLEN GARRITY,
having been first duly administered an
oath in accordance with CCP 2094, was
Page 704
examined and testified as follows:
DIRECT EXAMINATION
BY MS. AILIN:
Q. Please state and spell your name for the
record.
A. Glen with one "u," Garrity, G-a- r- r- i -t -y.
Q. And will you please tell us how you are
employed?
A. City of Newport Beach detective.
Q. How long have you been a — how long have you
been with the Newport Beach Police Department?
A. 19 years.
Q. And how much of that time have you been a
detective?
A. Five.
Q. Are you assigned to any particular unit within
the police department?
A. Burglary.
Q. Detective Garrity, I would like to ask you to
take a look at Exhibit 29 in the binder that's in front
of you and particularly the third and fourth pages of
that exhibit. Have you seen those pages before?
A. Yes.
Q. Is this a report that you prepared in the
20 (Pages 703 to 706)
Page 705
1 course and scope of your dudes as a Newport Beach
2 police officer?
3 A. Yes.
4 Q. What was the date on which the events
5 described in this report occurred?
6 A. January 25th, 2008.
7 Q. And when was this report prepared?
8 A. It was either — it was the day, the 26th I
9 prepared it.
10 Q. Did you take any notes about the events that
11 occurred on January 25th?
12 A. [n the beginning I try to do — I try to have
13 a handheld digital recorder, and I was talking the whole
14 time, but that didn't work out, so I think 1 did write a
15 few notes.
16 Q. And did you use those notes in preparing this
17 report?
18 A. Yes.
19 Q. Have you retained those notes?
20 A. No.
21 Q. Have you retained the recording?
22 A. No.
23 Q. Now, if you testified that you are with the
24 burglary division within the Newport Beach Police
25 Department, how did you happen to be in an undercover
Page 706
1 surveillance at 4221 Dolphin Striker Way on January 25,
2 2008?
3 A. Detective Jones said he needed some more
4 bodies. He asked me if 1 would work it that night.
5 MS. All-IN: I will move these two pages of Exhibit
6 29 into evidence.
7 MR. JAMIESON: Objection on the basis it calls for
8 speculation, lacks foundation, calls for hearsay, is
9 hearsay, is not saved from its inadmissibility by
10 Evidence Code section 1280 and the basic foundational
11 elements of 1280 have not been satisfied.
12 THE HEARING OFFICER: Overruled, and the portion of
13 the report is admitted.
14 (City's Exhibit 29 was
15 admitted into evidence and is
16 bound under separate cover.)
17 MS. AILIN: And I will pass the witness for
18 cross- examination.
19
20 CROSS - EXAMINATION
21 BY MR, JAMIESON:
22 Q. Hi Detective Garrity, how are you?
23 A. I'mfine.
24 Q. I have a couple of questions. First of all,
25 you indicated that you were there on the evening of
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A. Yes.
Q. Whatever that building is on Dove, is that the
mull -level structure?
A. I believe it's at least four stories, if I
remember right.
Q. And it's close to the parking lot that is
shared by Fury, Classic Q and Saagar at the time which
is solely a street level lot, right?
A. You are talking about a multi- structure
parking lot?
Q. No, all I want to do is make sure that when we
are looking at your report that we are talking about the
same thing, we're all on the same page in terms of the
parking lots you have referenced, so I just want to make
sure. There is the multiple -level structure, whether
Ws four levels or five or something else. It's the
only multi -level structure that's adjacent to the Fury
ground level parking lot, right ?.
A. Well, between — in between the 1600 and Fury
is the Saagar building so, yes, If you want to say
adjacent, yeah.
Q. And then there is also a parking lot that is
ground level or street level, and it's shared by Fury,
Saagar and Classic Q?
A. Yes.
Page 710
Q. So on the first page when you reference you
observed approximately six cars parked in these areas
mostly by the Dove building, that's mostly by the
multi-level structure; is that right?
A. Yes, sir.
Q. And the people that you saw at that time that
went to the rear of Saagar and urinated, is Saagar the
building that is along the roughly west edge of that
shared parking lot?
A. You have got me on directionals (sic) on that
one.
Q. In that area — and I realize there is some li
confusion about which way MacArthur runs at that
particular location, but assume for a moment for our
discussion that MacArthur runs north and south. Okay.
Do you have that in mind?
A. So facing north I would say, yes, on the west
side then.
Q. So when you reference these people that you
observed to urinate at the rear of Saagar, that would be
on the west side of that west building; is that correct?
A. Yes, sir.
Q. By the way, during that particular evening of
January 25th, 2008 were you — strike that.
During that particular evening, January 25th
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January 25th, 2008, and it appears from your report that
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2
you never entered the premises; is that correct?
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3
A. The Fury?
3
4
Q. Yes?
4
5
A. No, I never did.
5
6
Q. Now, you referenced the parking lot for Fury,
6
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Classic Q, Saagar, 1800 Dove building and Glidewell
7
8
Industries and the parking structure. These are
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9
referenced in your report as the parking lots for Fury;
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that's — strike that. Fm misstating.
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11
The 1800 Dove building and Gtidewell
11
12
Industries and the parking structure, are those lots
12
13
that you consider to be parking lots for Fury, Classic Q
13
14
and Saagar?
14
15
A. It's the 1600 Dove building, not 1800.
15
16
Q. Can't read my copy. Is that correct
16
17
otherwise?
17
18
A. Those are parking lots surrounding the Fury.
18
19
Who owns it or who claims those parking lots I don't
19
20
know, but those are all nearby parking lots to the Fury.
20
21
Q. Okay. What did Detective Jones ask you to
21
22
watch for that particular evening?
22
23
A. Muni code violations.
23
24
Q. Did he specify in any greater detail what
24
25
types of muni code violations?
25
Page 708
1
A. If I remember, the usual stuff, maybe drinking
1
2
outside the club, urinators, drug activity, anything
2
3
illegal.
3
4
Q. Based on your demeanor and the expression of
4
5
your face and also the fact that you have stated maybe,
5
6
are you recollecting as you said the usual types of
6
7
things that you would be expected to look for or do you
7
8
actually have a specific recollection of what
e
9
Detective Jones asked you to do on that specific
9
10
occasion that night?
( 10
11
A. I more specifically remember muni code
11
12
violations.
12
13
Q. So the balance of what you said is in general
1 13
14
what you would look for, right?
14
15
A. Yes.
15
16
Q. Were you undercover that night?
16
17
A. Yes, plainclothes.
17
18
Q. The reference that you make to the 1800 Dove
18
19
building, is this the multi -level Dove structure?
19
20
A. It's 1600,1 believe.
20
21
Q. I thought I said 16, and you corrected me.
21
22
Is it 1600 or 1800?
22
23
A. I think Ws 1600.
23
24
Q. Are we only talking about one building,
24
25
whatever that address is?
25
Zl (rages /V/ t.v iiUI
Page 709
A. Yes.
Q. Whatever that building is on Dove, is that the
mull -level structure?
A. I believe it's at least four stories, if I
remember right.
Q. And it's close to the parking lot that is
shared by Fury, Classic Q and Saagar at the time which
is solely a street level lot, right?
A. You are talking about a multi- structure
parking lot?
Q. No, all I want to do is make sure that when we
are looking at your report that we are talking about the
same thing, we're all on the same page in terms of the
parking lots you have referenced, so I just want to make
sure. There is the multiple -level structure, whether
Ws four levels or five or something else. It's the
only multi -level structure that's adjacent to the Fury
ground level parking lot, right ?.
A. Well, between — in between the 1600 and Fury
is the Saagar building so, yes, If you want to say
adjacent, yeah.
Q. And then there is also a parking lot that is
ground level or street level, and it's shared by Fury,
Saagar and Classic Q?
A. Yes.
Page 710
Q. So on the first page when you reference you
observed approximately six cars parked in these areas
mostly by the Dove building, that's mostly by the
multi-level structure; is that right?
A. Yes, sir.
Q. And the people that you saw at that time that
went to the rear of Saagar and urinated, is Saagar the
building that is along the roughly west edge of that
shared parking lot?
A. You have got me on directionals (sic) on that
one.
Q. In that area — and I realize there is some li
confusion about which way MacArthur runs at that
particular location, but assume for a moment for our
discussion that MacArthur runs north and south. Okay.
Do you have that in mind?
A. So facing north I would say, yes, on the west
side then.
Q. So when you reference these people that you
observed to urinate at the rear of Saagar, that would be
on the west side of that west building; is that correct?
A. Yes, sir.
Q. By the way, during that particular evening of
January 25th, 2008 were you — strike that.
During that particular evening, January 25th
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FURY REVOCATION HEARING - 4/22/2008
Page 711
of 2008, did you park your car in just one location?
A. Yes.
Q. And where was the location that you parked
your car?
A. That would be on the closest — let me
describe this.
Q. If we can stick —
A. Pretty much between the Fluty and the Classic
Q. I was in the lot or the parking spot on the furthest
east closest to the grassy area on MacArthur.
Q. Okay. So —
THE HEARING OFFICER: Just north of the Fury if
MacArthur is running north?
THE WITNESS: North of the Fury, yes, between the
Classic Q.
BY MR. JAMIESON:
Q. So you are south of Classic Q, north of the
Flury and on the very east edge of that shared parking
lot?
A Yes.
Q. Were you closer to Classic Q or closer to
Fury,?
A. If I have to guess, probably Fury.
Q. So the observations that you made about these
people urinating on the west side of the Saagar
Page 712
,
cc \raycn iii. vv ,izt
Page 713
1 but also Classic Q and Saagar?
2 A. Yes.
3 Q. Were there other businesses, to your
4 knowledge, that were open at that time besides those
5 three?
6 A. I can't think of the name, but there might
7 have been a — I'm thinking there is a bar that has got
8 maybe a Martindale address that might have been open.
9 Q. Where is Martingale in relation to —
10 A. It's a dead -end street right in front of
11 Classic Q.
12 MS. PARKER: Martingale.
13 THE WITNESS: Martingale.
14 BY MR. JAMIESON:
15 Q. Now, the street that leads into the shared lot
16 with these three businesses, that's actually Dolphin
17 Striker Way?
18 A. Yes.
19 Q. So Martingale would be to the north of Dolphin
20 Striker Way?
21 A. Yes, sir.
22 Q. Now, I gather you stated in your report of
23 January 25, 2008 any and all events that you felt, based
24 on your education, experience and training as a law
25 enforcement officer were worthy of stating in a report
1
building, that observation or those observations you
1
2
made not by sitting in your car, but rather you were out
2
3
walking around; is that right?
3
4
A. I alternated between walking back around and
4
5
sitting in the car.
5
6
Q. You must have seen those things occur not from
6
7
any location within that shared ground level parking lot
7
8
but from some other location; would that be true?
8
9
A. Yes, sir.
9
10
Q. So were you actually out on the street that
10
11
leads into Fury in order to be able to see these people
11
12
you observed urinate on the west side of Saagar?
12
13
A. I was actually walking the parking lot behind
13
14
the Saagar between the 1600 building where I would walk
14
15
in that street area right there. 1 was walking on the
15
16
Glidewell multi - structure parking lot.
16
17
Q. It's kind of a cul-de -sac?
17
18
A. Because all the parking between Classic Q and
18
19
Fury was pretty much filled up. Nobody was driving in
19
20
there. All of the parking had to be on the outskirts of
20
21
the area, so we meandered over there to see what was
21
22
going on.
22
23
Q. Were Classic Q and Saagar open?
23
24
A. Yes.
24
25
Q. So all the parking there was not only for Fury
25
Page 714
for the purpose for which you were there; would that be
true?
A. Yes.
Q. And is it also correct that you neither
detained, nor arrested anyone for anything, nor caused
any citations to be issued, nor issued any citations?
A. No, I did not
Q. All of whorl said is correct?
A. Yes, sir.
MIL JAMIESON: Nothing further. Thank you.
MS. AILIN: Just a couple questiom.
FURTHER DIRECT EXAMINATION
BY MS. AILW:
Q. On the night of January 25, 2008 were you
working at Fury in an undercover capacity?
A. Yes.
Q. If you had issued any citations that night,
how would that have affected your undercover status?
A. It would have blown my cover.
Q. And if you had arrested anyone that night, how
would that have affected your undercover status?
A. It have would have taken me off the
assignment, and I would have been stuck in jail or
processing or booking and wouldn't be able to do my
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tray ca t
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relevance, and we don't agree that they are relevant
without some testimony to what they mean. Its fine.
It's not worth the discussion. It really isn't. That's
fine.
THE HEARING OFFICER: So can we admit them?
MR. JAMIESON: We can admit them.
(City's Exhibits 8 through 17
were admitted into evidence and are
bound under separate cover.)
THE HEARING OFFICER: And that would include your
20—
MR. JAMIESON: — 6.
THE HEARING OFFICER: I don't think 26 is correct.
I think its 22.
MR. JAMIESON: I think its 26.
THE HEARING OFFICER: It is? I stand corrected.
MS. AILIN: It is 26, Fury 26.
THE HEARING OFFICER: So that's admitted as well.
(Fury's Exhibit 26 was
admitted into evidence and is
bound under separate cover.)
THE HEARING OFFICER: And then we have issues with
40 and 41 orjust 41?
MS. AILIN: Well, 40 was part of Shannon Levin's
testimony. 41 —
Page 718
THE HEARING OFFICER: So 40 is admitted, then,
because she testified, right, as to the issuance of the
citations, and they were challenged and examined. 41 is
the additional notices that Miss --
MS. A IN: Varin.
THE NEARING OFFICER: — Varin testified to, and my
position is those are admitted subject to the concerns
expressed by Mr. Jamieson during cross.
MR. JAMIESON: And we did identify 42?
MS. AMIN: Yes, which was the color •-
MR. JAMIESON: Sorry.
THE HEARING OFFICER: Photo?
MS. AB,IN: Right, it was the color copy of --
THE HEARING OFFICER: The dumpster.
MS. All-IN: It was the color copy of the photograph
in the upper right -hand comer of Exhibit C I OE.
THE HEARING OFFICER: Right Would you please pull
out Exhibit 7 and indicate where that is on Exhibit 7,
page 2?
MS. AILIN: Frankly, I'm not sure 1 can do that
accurately.
THE HEARING OFFICER: Miss --
MS. AILIN: When you say where it is, I assume you
mean the location.
THE HEARING OFFICER I cannot get oriented in my
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undercover.
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MS. AILIN: The most honest answer we have had to
2
3
that question so far. No further questions.
3
4
MR. JAMIESON: I have it. Does the hearing officer
4
5
FURTHER CROSS - EXAMINATION
5
6
BY MR. JAMIESON:
6
7
Q. Officer, with respect — I'm sorry.
7
8
Detective. With respect to your abilities while being
8
9
an undercover officer, you certainly Understood at the
9
10
time that you were there that if you observed something
10
11
that was — that you considered to be a danger to the
11
12
person or a danger — someone was causing a danger to
12
13
themselves or was likely to be a danger to someone else
13
14
that you could have called in a uniformed officer to
14
15
make an arrest, issue a citation or cause a detention,
15
16
true?
16
17
A. Yes.
17
18
Q. And you didn't do that?
18
19
A No.
19
20
MR. JAMIESON: Nothing further.
20
21
THE HEARING OFFICER: Nothing further.
21
22
MS. AQ,IN: Thank you.
22
23
THE HEARING OFFICER: Let's go off the record.
23
24
(Discussion ensued off the record.)
24
25
THE HEARING OFFICER: We are talking about a
25
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Page 717
relevance, and we don't agree that they are relevant
without some testimony to what they mean. Its fine.
It's not worth the discussion. It really isn't. That's
fine.
THE HEARING OFFICER: So can we admit them?
MR. JAMIESON: We can admit them.
(City's Exhibits 8 through 17
were admitted into evidence and are
bound under separate cover.)
THE HEARING OFFICER: And that would include your
20—
MR. JAMIESON: — 6.
THE HEARING OFFICER: I don't think 26 is correct.
I think its 22.
MR. JAMIESON: I think its 26.
THE HEARING OFFICER: It is? I stand corrected.
MS. AILIN: It is 26, Fury 26.
THE HEARING OFFICER: So that's admitted as well.
(Fury's Exhibit 26 was
admitted into evidence and is
bound under separate cover.)
THE HEARING OFFICER: And then we have issues with
40 and 41 orjust 41?
MS. AILIN: Well, 40 was part of Shannon Levin's
testimony. 41 —
Page 718
THE HEARING OFFICER: So 40 is admitted, then,
because she testified, right, as to the issuance of the
citations, and they were challenged and examined. 41 is
the additional notices that Miss --
MS. A IN: Varin.
THE NEARING OFFICER: — Varin testified to, and my
position is those are admitted subject to the concerns
expressed by Mr. Jamieson during cross.
MR. JAMIESON: And we did identify 42?
MS. AMIN: Yes, which was the color •-
MR. JAMIESON: Sorry.
THE HEARING OFFICER: Photo?
MS. AB,IN: Right, it was the color copy of --
THE HEARING OFFICER: The dumpster.
MS. All-IN: It was the color copy of the photograph
in the upper right -hand comer of Exhibit C I OE.
THE HEARING OFFICER: Right Would you please pull
out Exhibit 7 and indicate where that is on Exhibit 7,
page 2?
MS. AILIN: Frankly, I'm not sure 1 can do that
accurately.
THE HEARING OFFICER: Miss --
MS. AILIN: When you say where it is, I assume you
mean the location.
THE HEARING OFFICER I cannot get oriented in my
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multi-page written document from you firm that had
1
2
objections to all of the exhibits.
2
3
MS. AILIN: I have it marked as A4.
3
4
MR. JAMIESON: I have it. Does the hearing officer
4
5
have it?
5
6
THE HEARING OFFICER: Yes, I have it. In fact,
6
7
maybe I didn't get nine back. I think I handed it out
7
8
to people to copy.
8
9
MR. JAMIESON: Well, I can make sure that happens.
9
10
THE HEARING OFFICER: You may have e- mailed it to
10
11
me. I don't know. I have a hard copy.
11
12
MR JAMIESON: I'm sure we did,
12
13
ptlaw @sbcglobal.net?
13
14
THE HEARING OFFICER: Yes.
14
15
MR. JAMIESON: But I'm happy to give you another
15
16
copy.
16
17
THE HEARING OFFICER: With respect to city Exhibits
17
18
C 8 through 17, they are admitted. Exhibit 6 is — has
18
19
been abandoned by the city and not admitted. Exhibit 24
19
20
and 25 have been stipulated as to admissibility.
20
21
MS. AILIN: Right.
21
22
MR. JAMIESON: Well, again, when the hearing
22
23
officer says admissibility, it has been stipulated to
23
24
with regard to the foundational elements, authentication
24
25
and those things, but part of the admissibility would be
25
tray ca t
Page 717
relevance, and we don't agree that they are relevant
without some testimony to what they mean. Its fine.
It's not worth the discussion. It really isn't. That's
fine.
THE HEARING OFFICER: So can we admit them?
MR. JAMIESON: We can admit them.
(City's Exhibits 8 through 17
were admitted into evidence and are
bound under separate cover.)
THE HEARING OFFICER: And that would include your
20—
MR. JAMIESON: — 6.
THE HEARING OFFICER: I don't think 26 is correct.
I think its 22.
MR. JAMIESON: I think its 26.
THE HEARING OFFICER: It is? I stand corrected.
MS. AILIN: It is 26, Fury 26.
THE HEARING OFFICER: So that's admitted as well.
(Fury's Exhibit 26 was
admitted into evidence and is
bound under separate cover.)
THE HEARING OFFICER: And then we have issues with
40 and 41 orjust 41?
MS. AILIN: Well, 40 was part of Shannon Levin's
testimony. 41 —
Page 718
THE HEARING OFFICER: So 40 is admitted, then,
because she testified, right, as to the issuance of the
citations, and they were challenged and examined. 41 is
the additional notices that Miss --
MS. A IN: Varin.
THE NEARING OFFICER: — Varin testified to, and my
position is those are admitted subject to the concerns
expressed by Mr. Jamieson during cross.
MR. JAMIESON: And we did identify 42?
MS. AMIN: Yes, which was the color •-
MR. JAMIESON: Sorry.
THE HEARING OFFICER: Photo?
MS. AB,IN: Right, it was the color copy of --
THE HEARING OFFICER: The dumpster.
MS. All-IN: It was the color copy of the photograph
in the upper right -hand comer of Exhibit C I OE.
THE HEARING OFFICER: Right Would you please pull
out Exhibit 7 and indicate where that is on Exhibit 7,
page 2?
MS. AILIN: Frankly, I'm not sure 1 can do that
accurately.
THE HEARING OFFICER: Miss --
MS. AILIN: When you say where it is, I assume you
mean the location.
THE HEARING OFFICER I cannot get oriented in my
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Page 719!
Page 721
1
mind as to the location of that particular dutrmster,
1
A. I worked as a deputy sheriff for Fresno County
2
so -- i
2
for about two years prior.
3
MS. AUN: Well, actually, you know, on Exhibit 7 !
3
Q. Any law enforcement experience prior to that?
4
it indicates where the trash enclosure is on the far
4
A. No.
5
right. It's handwritten there.
5
Q. I'd like to — strike that.
6
THE HEARING OFFICER: I see.
6
Are you assigned to a particular unit or
7
MR- JAMIESON: Far right, second page.
7
division within the Newport Beach Police
8
THE HEARING OFFICER: I understand. Thank you. So
8
Department?
9
that then takes care of the city exhibits, does it not?
9
A. Currently I'm on the bicycle detail.
10
MS. AILIN: There was one more. We had talked
10
Q. And haw long have you been on the bicycle
11
about admitting Exhibit 7, and when you started talking,
11
detail?
12
you said 8 through 17 are admitted.
12
A. Two years now.
13
THE HEARING OFFICER: Well, 7 is admitted as being
13
Q. I'd like to direct your attention to Exhibit
14
the site plan for the location.
14
30 in the binder in front of you and specifically to the
15
MR. JAMIESON: Well, the three pages because we did
15
first three pages of Exhibit 30. Would you please take
16
talk about the site plan, the floor plan.
16
a look at those pages and tell us whether you have seen
17
THE HEARING OFFICER: We talked about all three.
17
those before?
is
There was reference during testimony of the third page
18
MR. JAMIESON: I'm sorry, Counsel. What page?
19
where the bar was and moving things around, yes.
19
MS. AI.IN: Exhibit 30.
20
MR. JAMIESON: And also what I think is helpful is
20
THE WITNESS: Yes, I've seen them all.
21
the first page of Exhibit 7 at the top right -hand comer
21
BY MS. AILIN:
22
it says "Vicinity map." j
22
Q. And are the first two pages of Exhibit 30 a
23
THE HEARING OFFICER: Yes.
23
report that you prepared in the mum and scope of
24
MR. JAMIESON: And at least it gives us some
24
your duties as a police officer?
25
orientation of what we are looking at in relation to
25
A. Yes.
Page 720
Page 722
1
other streets.
1
Q. When did the events described in the report
2
THE HEARING OFFICER: Of the airport, yes.
2
occur?
3
MR. JAMIESON: Can we go off the record and talk
3
A. On — the date you mean?
4
about housekeeping?
4
Q. Yes, the date.
5
THE HEARING OFFICER: Yes.
5
A. It's January 26.
6
(Discussion ensued off the record.)
6
Q. And when did you prepare the report?
7
7
A. That morning, early in the morning.
8
BRYCE HARDY,
8
Q. Did you take any notes of the events that
9
having been first duly administered an j
9
occurred on January 26?
10
oath in accordance with CCP 2094, was i
10
A. No, not actual notes.
11
examined and testified as follows:
11
Q. About how long after the events occurred did
12
12
you prepare the report?
13
DIRECT EXAMINATION
13
A. Probably one -half an hour.
14
BY MS. AILIN:
14
Q. And the third page of Exhibit 30, can you
15
Q. Please state and spell your name for the
15
explain to us what that is?
16
record.
16
A. That's a citation.
17
A. Officer Bryce Hardy, Ha- r-d -y.
17
Q. And who is this citation issued to?
18
Q. And, Officer Hardy, how are you employed?
18
A. David Gonzalez.
19
A. As a police officer with the City of Newport
19
Q. And what was the citation for?
20
Beach.
20
A. It was for overcrowding and blocked aisles.
21
Q. How long have you worked for the City of
21
MS. AILIN: I would move the first three pages of
22
Newport Beach as a police officer?
22
Exhibit 30 into evidence.
23
A. Five years.
23
MR. JAMIESON: Objection as to all three of these
24
Q. And were you working somewhere else as a
24
pages on the basis that it's speculative, lacks
25
police officer before that?
25
foundation and calls for hearsay, is hearsay, is not
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1
Page 723
1
1
saved by Evidence Code section 1280 and is irrelevant,
1
2
and that would be as to each of the three pages, both
2
3
the supplemental report field that is two pages and the
3
4
third page which purports to be a citation.
4
5
THE HEARING OFFICER: Now •-
5
6
MR. JAMIESON: And it lacks the foundational
6
7
elements of Evidence Code section 1280, which 1
7
8
understand the city attorney is relying upon as an
8
9
exception to the hearsay rule.
9
10
THE HEARING OFFICER: Overruled. They are
10
11
admitted. Is the citation blacked out in your copies?
11
12
I mean --
12
13
MR. JAMIESON; Yes.
13
14
THE HEARING OFFICER: I cant see what it's about.
14
15
MS. AILIN: It is blacked out. What is blacked out
15
16
is David Gonzalez's personal information to try to
16
17
protect his privacy, avoid identity theft and things
17
18
like that because this is --
18
19
THE HEARING OFFICER: So it's just his address and
19
20
all that sort of thing?
20
21
MS. AILIN: Right, this was a part of a staff
21
22
report that was disseminated to the public, and the city
22
23
attorney's office made the determination that his
23
24
address and other identifying information shouldn't be
24
25
disseminated in that way. i
25
Page 7241
1
THE HEARING OFFICER: Okay,
1
2
MS. AILIN: And the same is the case with the first
2
3
page of Exhibit 30, the same kind of information as to
3
4
-- and actually on the first page of Exhibit 30 that is
4
5
as to Mr. Gonzalez and Mr. Schillizzi, so I guess we
5
6
need a ruling on the objection.
6
7
THE HEARING OFFICER: I did. Overruled, and it is
7
8
admitted.
8
9
MS. AILIN: Thank you.
9
10
THE HEARING OFFICER: The three pages.
10
11
(City's Exhibit 30 was
11
12
admitted into evidence and is
12
13
bound under separate cover.)
13
14
BY MS. AILIN:
14
15
Q. Officer Hardy, have you been to Fury since
15
16
January 26, 2008?
16
17
A. Yeah, yes.
17
18
Q. Do you recall the date that you were there?
18
19
A. Let me think about it. Hold on. It was the
19
20
4th or 5th of this month, April 4th or 5th, I
20
21
believe. i
21
22
Q. And why were you at Fury on that date?
22
23
MR, JAMIESON: I'm going to object on the basis
23
24
that it calls for hearsay. It calls for speculation.
24
25
It lacks foundation, but most importantly this is now an
25
25 (Pages 723 to 726)
Page 725
item that this officer intends to testify about for
which we had no notice, for which we have an
documentation, for which we have not been put on notice
or given adequate opportunity to defend or prepare a
defense, and this proceeding was actually -- that we are
involved in now -- was initiated prior to the officer
actually apparently attending Fury at that time, and it
puts us in an untenable position and violates
constitutional rights to be able to proceed in a manner
that protects our ability to prepare an adequate defense
and adequate cross - examination with notice and due
process in place. He is saying April 4th. That was
j ust a few days ago. It's after everything. So at some
point you have got to have the right universe of
documents and universe of dates and times.
THE HEARING OFFICER: I understand.
MR. JAMIESON: You can'tjust keep going out and
doing stuff and then expect that there is going to be a
way to proceed in this proceeding on it. They have got
enough --
THE HEARING OFFICER: Can you give us an offer of
proof of where you're going or where you would like to
go here?
MS. AI-IN: Well, 1 can deal with it another way,
although this is somewhat less convenient. 1 could
Page 726
recall Officer Hardy at a later time because what 1 am
anticipating is testimony to the effect that Fury now
has a new security plan and all the problems have beat
solved. Now, if I can call Officer Hardy later to rebut
that, then III call him later to rebut that.
THE HEARING OFFICER: Are you going to give
testimony through the course of this proceeding that —
regarding an updated or a new security plan?
MR. JAMIESON: As to an updated security plan, yes,
but the new security plan updated in my understanding or
at least my client's understanding of what the police
have told them as a result of that. However, that
doesd t have anything to do with April 4th, and that
puts us in an untenable position. They have always
known about the security plan put in place, the
discussions that they had with Lieutenant Frizell or
Captain Frizell, whatever position he is, of the Newport
Beach Police Department, so we we dealing with it that
way. Just because that's brought up doesn't then open
up everything possible subsequent to that just because
the officers of the police department or the city decide
to keep going back out.
THE HEARING OFFICER: All right. So we are going
in reverse here is what I'm heating that you are going
to talk about a security plan. You are going to have
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Page 7291
objection. I believe it's appropriate. It's relevant
for this officer to testify to that, and you can
certainly have an opportunity to cross - examine and have
your client discuss whatever he can discuss in that
respect.
MR. JAMIESON: The other- -
THE HEARING OFFICER: It's overruled.
MR. JAMIESON: The thing I would request, then, and
unfortunately it takes us more time, is I would request
the ability to obtain the report from which he, I'm
sure, probably refreshed his recollection before coming
in here today. I would like to obtain a copy of any and
all documents relating to that. I would like
information to be provided that is pursuant to my
request right now for that information, and then I would
like a little bit of time, so we can adequately
cross - examine and XW him come back on Thursday.
THE HEARING OFFICER: Do you have a position on
that?
MR. JAMIESON: If necessary, I don't know if it'll
be necessary, but if necessary, certainly.
MS. AMIN; I don't have a problem with that. Are
you available on Thursday?
THE WITNESS: I work until 3:00 the night before,
but I'm available.
Page 730
THE HEARING OFFICER: When?
THE WITNESS: I work until 3:00 the night before.
THE HEARING OFFICER: When were you talking abo
doing this examination?
MS. AILIN: Thursday.
THE HEARING OFFICER: Well, thats okay with me.
If its worthy of that additional time, then well do
it.
MR. JAMIESON: And so when do we get the report?
THE WITNESS: I don't have it with me.
MS. AILIN: You don't have it with you?
THE WITNESS: No, sorry.
MS. PARKER: I believe I have it in my e-mail,
THE WITNESS: Okay, Good.
MS. AILIN: Actually are -- I don't know if I have
it or not. I do have it. Is this is a copy you
have?
MS. PARKER: Yes, that's a redacted copy.
THE HEARING OFFICER: Do you want to simply hold
off on this testimony entirely and do it Thursday9
MS. AILIN: We could do that, although -- Ijust
have a couple more questions for Officer Hardy on direct
examination, and I would like to complete that
THE HEARING OFFICER: On previous time spent at --
MS. AILIN: Not related to any specific event at
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Page 7271
1
some evidence presented with respect to an updated
1
2
security plan, right?
2
3
MR. JAMIESON: Right, that was submitted prior to
: 3
4
our last visit to the planning commission.
4
5
THE HEARING OFFICER: So then Miss Ailin wants this, 5
6
officer to testify with respect to the operation of that
6
7
security plan; is that basically the plan?
i 7
e
MS. AILIN: With respect to events that occurred
e
9
after the new security plan went into effect
9
10
MR. JAMIESON: Well --
10
11
THE HEARING OFFICER: So how do you feel about the
11
12
objection based on the motion that we did agree on what
12
13
the evidence was going to he in advance of the hearing
13
14
and now this is new and different evidence that's not in
14
15
this report, right?
15
16
MS. AILIN: I guess Itn not sure what you mean by
16
17
we agreed on what the evidence would be. We
: 17
16
exchanged —
18
19
THE HEARING OFFICER: Exhibits,
19
20
MS. AMIN: -- exhibits. I'm not aware that there
20
21
was necessarily a limitation on testimony that came
21
22
along with that.
22
23
THE HEARING OFFICER: True.
i 23
24
MR. JAMIESON: Well, is he going to be testifying
24
25
from a document, from a report?
- - - --
25
Page 728
,
1
MS. AILIN: No, actually he will not be testifying
1
2
from a document.
2
3
MR. JAMIESON: Well, is there a document that was
3
4
prepared as a result of him being there? I'm sure there
4
5
was. They always write reports and document things, so
5
6
assuming that's the case, I don t have it. I haven't
6
7
had it. I don't have the ability to -- even if Pm
7
8
given this document right this second, it certainly puts
a
9
us in an untenable position.
9
10
If this were a civil case, which it is not,
10
11
you have a universe of documents and dates and issues
11
12
and witnesses that you are aware of If it's a criminal
! 12
13
case, the prosecution has provided all that information
13
14
to the defense well enough in advance to be able to
14
15
provide a defense, an we know what universe of documents
15
16
there are even in an administrative proceeding. There
16
17
has to be some semblance of notice and due process, and
17
18
I think this violates beyond that.
18
19
Who's to say that you don't have the police go
19
20
out the last three days and somehow look for something
20
21
you contend is a violation, so at some point it's got to
21
22
stop. At some point we have got to be able to deal with
22
23
what the issues are and what the universe of potential
23
24
evidence is going to be at least. !
24
25
THE HEARING OFFICER: I'm going to overrule that
25
26 (Pages 727 to 730)
Page 7291
objection. I believe it's appropriate. It's relevant
for this officer to testify to that, and you can
certainly have an opportunity to cross - examine and have
your client discuss whatever he can discuss in that
respect.
MR. JAMIESON: The other- -
THE HEARING OFFICER: It's overruled.
MR. JAMIESON: The thing I would request, then, and
unfortunately it takes us more time, is I would request
the ability to obtain the report from which he, I'm
sure, probably refreshed his recollection before coming
in here today. I would like to obtain a copy of any and
all documents relating to that. I would like
information to be provided that is pursuant to my
request right now for that information, and then I would
like a little bit of time, so we can adequately
cross - examine and XW him come back on Thursday.
THE HEARING OFFICER: Do you have a position on
that?
MR. JAMIESON: If necessary, I don't know if it'll
be necessary, but if necessary, certainly.
MS. AMIN; I don't have a problem with that. Are
you available on Thursday?
THE WITNESS: I work until 3:00 the night before,
but I'm available.
Page 730
THE HEARING OFFICER: When?
THE WITNESS: I work until 3:00 the night before.
THE HEARING OFFICER: When were you talking abo
doing this examination?
MS. AILIN: Thursday.
THE HEARING OFFICER: Well, thats okay with me.
If its worthy of that additional time, then well do
it.
MR. JAMIESON: And so when do we get the report?
THE WITNESS: I don't have it with me.
MS. AILIN: You don't have it with you?
THE WITNESS: No, sorry.
MS. PARKER: I believe I have it in my e-mail,
THE WITNESS: Okay, Good.
MS. AILIN: Actually are -- I don't know if I have
it or not. I do have it. Is this is a copy you
have?
MS. PARKER: Yes, that's a redacted copy.
THE HEARING OFFICER: Do you want to simply hold
off on this testimony entirely and do it Thursday9
MS. AILIN: We could do that, although -- Ijust
have a couple more questions for Officer Hardy on direct
examination, and I would like to complete that
THE HEARING OFFICER: On previous time spent at --
MS. AILIN: Not related to any specific event at
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Page 733
that have already testified potentially that in this
proceeding that had 119 about this and had I known that
there was some indication we would be going here, we
could certainly ask him at the time. And I don't know
that for sure because rmjust kind of perusing right
raw. But I mean this lends a whole other level of
complexity to this proceeding that was certainly not
anticipated, certain not noticed and at the very least,
as I said, indicates a whale level of complexity that's
going to make this a much longer, more drawn out, more
complex, more convoluted proceeding potentially, so on
that basis I would also object on 352 grounds, on
Evidence Code 352.
THE HEARING OFFICER: Well --
MR. JAMIESON: We have already been --
THE HEARING OFFICER: After all of that, it sounds
as if Officer Hardy is going to testi fy to basically the
same areas that we have previously heard. Would he be
going off into areas of evaluation of this new security
plan --
MS. AlI.IN: No.
THE HEARING OFFICER: -- and how it's working and
why it's not working and all of that sort of thing --
MS. AILIN: No.
THE HEARING OFFICER: --or are you just going to
Page 734
have him testify that certain events have occurred out
there that is, quote, unquote, rare of the same and
pretty much end there and extrapolate from there the new
security plan isn't working; is that your idea?
MS. AILIN: He would be testifying about events
that occurred while he was present at Fury, and frankly,
he wouldn't be the one extrapolating from that that the
new security plan isn't working. I would be the one !,
that would be doing that.
THE HEARING OFFICER: I understand that's what you
mean. Well --
MR. JAMIESON: Well, if that's the case, how do we
even get there? How do we even draw that conclusion?
Argument is one thing, but there is no evidence here in
terms -- nor would I expect any -- whether or not a
particular proceeding or pamcular event either relates
to, doesn't relate to, could have been prevented by,
could have been stopped by, would have been helped by,
whatever, a security plan of some sort that there has
been no testimony by any police officer from the City of
Newport Beach, and we have heard now a number of them
as to what security plan was in place when, when the
security plan changed, what the differences would be
between the security plans; and therefore, how do you
draw the conclusion that any particular secunty plan
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Page 731
1
Fury.
1
2
THE HEARING OFFICER: Oh,
2
3
MR. JAMIESON: Well, with respect to this new
3
4
information which we have already talked about an offer
4
5
of proof, what is the offer in terms of what this is
5
6
going to be, so I can at least identify what it is I am
6
7
getting prepared for?
7
8
MS. AILIN: I'm anticipating testimony to the
8
9
effect that Fury has a new security plan and that that
9
10
is going to resolve a number of the issues with
10
11
compliance with the use permit and particularly with
11
12
regard to Fury's obligation under the use permit to try
12
13
to do something about public intoxication, public
13
14
urination, fighting and other events that tend to occur
14
15
in and around places that are alcohol licensees, and the
15
16
evidence will reflect that the problems still exist.
16
17
MR, JAMIESON: Well, here is the difficulty I have
17
18
with respect to those issues: The person who was
18
19
involved in the security plan and accepting the new
19
20
security plan with the new security company is Frizell.
20
21
What that means, then, is in order for me to prepare for
21
22
and adequately provide information on that, since I'm
j 22
23
able to call witnesses and examine, is I would like to
23
24
get Frizell here to go over what that information is.
24
25
So that means that we then have to go through that.
! 25
Page 732
1
Let's •-
1
2
MS. AILIN: What do you think you need from
! 2
3
Frizell?
3
4
MR. JAMIESON: My understanding is that he was
4
5
agreeable to the new security plan, liked it, thought it
5
6
was great, and if, in fact, that is true, then I need to
6
7
be able to explore that.
7
8
MS. AILIN: Well, the issue isn't so much whether
8
9
Frizell saw the new security plan, liked it, thought it
9
10
was great, approved it et cetera. The issue is whether
10
11
it's having any practical effect.
11
12
MR. JAMIESON: But the other thing is that just in
12
13
looking at the report that was just handed tome five
13
14
minutes ago, it looks to me •• there are a number of
14
15
pages here, and it looks to me like these are things
15
16
that normally I would -- and maybe the hearing officer
16
17
would preclude me from using any of this information,
17
18
but just like we were dealing with this in pretrial
18
19
proceeding or prehearing proceedings, when this is
19
20
thrown at us today and even if we have until Thursday,
20
21
we don't have any ability to go out and actually find
21
22
other people that were involved in this or allegedly
22
23
involved in this to find out if there is a different
23
24
story. Plus, in just looking at this, it looks tome --
24
25
it looks to me like there may be other police officers
25
27 (Pages 731 to 734)
Page 733
that have already testified potentially that in this
proceeding that had 119 about this and had I known that
there was some indication we would be going here, we
could certainly ask him at the time. And I don't know
that for sure because rmjust kind of perusing right
raw. But I mean this lends a whole other level of
complexity to this proceeding that was certainly not
anticipated, certain not noticed and at the very least,
as I said, indicates a whale level of complexity that's
going to make this a much longer, more drawn out, more
complex, more convoluted proceeding potentially, so on
that basis I would also object on 352 grounds, on
Evidence Code 352.
THE HEARING OFFICER: Well --
MR. JAMIESON: We have already been --
THE HEARING OFFICER: After all of that, it sounds
as if Officer Hardy is going to testi fy to basically the
same areas that we have previously heard. Would he be
going off into areas of evaluation of this new security
plan --
MS. AlI.IN: No.
THE HEARING OFFICER: -- and how it's working and
why it's not working and all of that sort of thing --
MS. AILIN: No.
THE HEARING OFFICER: --or are you just going to
Page 734
have him testify that certain events have occurred out
there that is, quote, unquote, rare of the same and
pretty much end there and extrapolate from there the new
security plan isn't working; is that your idea?
MS. AILIN: He would be testifying about events
that occurred while he was present at Fury, and frankly,
he wouldn't be the one extrapolating from that that the
new security plan isn't working. I would be the one !,
that would be doing that.
THE HEARING OFFICER: I understand that's what you
mean. Well --
MR. JAMIESON: Well, if that's the case, how do we
even get there? How do we even draw that conclusion?
Argument is one thing, but there is no evidence here in
terms -- nor would I expect any -- whether or not a
particular proceeding or pamcular event either relates
to, doesn't relate to, could have been prevented by,
could have been stopped by, would have been helped by,
whatever, a security plan of some sort that there has
been no testimony by any police officer from the City of
Newport Beach, and we have heard now a number of them
as to what security plan was in place when, when the
security plan changed, what the differences would be
between the security plans; and therefore, how do you
draw the conclusion that any particular secunty plan
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28 (Pages 735 to 738)
Page 737
cross - examine in some way, now all of a sudden they are
going to attempt to introduce it by 1280. That's just
absolutely ridiculous. That's a real sandbag way to go.
MS. AILIN: I can do it without the report. I was
planning to do it without the report.
THE HEARING OFFICER: Well, then, let's do it '..
without the report, and then let's do it Thursday. The
only trouble is you don't know what the testimony is
going to be at all except -- unless you keep the report.
MR. JAMIESON: I gather I'm going to be allowed to
keep the report, which is -- prior to this hearing we
did public records requests. We did discovery requests
kinds of things, so we can try to get what the city has,
so at least we have some ability to prepare. And
certainly this wasn't provided, but I wouldn't expect it
to be because we did that request --
MS. AILIN: It didn't happen yet.
MR. JAMIESON: That's right. So now that we have
got it and if the city is not going to use it under
1280, then we should be able to have it, so that we can
at least try and prepare some cross- examination for the
testimony, and I would also request that the hearing
officer not be provided a copy of the report for all of
those reasons.
THE HEARING OFFICER: That's fine with me. If
Page 738
that's the way you want to proceed, then well do it
that way. Well do it without -- the report will not be
given to me. I guess you will keep a copy of it; is
that --
MS. AILIN: That's fine.
THE HEARING OFFICER: And then Officer Hardy will
be examined on Thursday, cross- examined on Thursday, and
then well go on to argument.
So did you have a couple of questions you
wanted to ask him?
MS. AILIN: I do have a couple more questions,
that's correct.
Q. Officer Hardy, are you as a result ofworldng
for the Newport Beach Police Department familiar with
the boundaries of the various reporting districts within
the Newport Beach area?
A. Yes.
Q. Are you familiar with the boundaries of
reporting District 34?
A. Yes.
Q. Are you familiar with the establishments
within reporting District 34 that are authorized to
serve or licensed to serve alcoholic beverages?
A. Yes.
Q. During calendar year 2007, did any licensee
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Page 735
1
that it has been changed to has even -- would prevem
1
2
it, wouldn t prevent it? How do you get there?
2
3
THE HEARING OFFICER: She can make all those
3
4
arguments. I will tell you, if it's desired to go
4
5
forward with this testimony, let's do it all on Thursday
5
6
and give the reports to Mr. Jamieson and to mein
6
7
advance, so that they can be analyzed, there won't be
7
8
any subpoena need of witnesses from it, but we can take
8
9
the same testimony, whatever testimony there is to give
9
10
about what's going on, and then you can argue, you know,
10
11
what you want to argue about it with respect to security
11
12
plans, but --
12
13
MS. AILIN: That's fine. I still would like to ask
13
14
Officer Hardy a couple of other questions --
14
15
THE HEARING OFFICER: Now, that's on --
15
16
MS. AUN: -- on a different subject
16
17
THE HEARING OFFICER: That's on his observations on
17
18
April 4th or —
18
19
MS. AILIN: The additional questions?
19
20
THE HEARING OFFICER: Yes.
20
21
W. AILIN: Are related to a different subject.
21
22
THE HEARING OFFICER: Okay.
22
23
MS. AILIN: Not Exhibit 30, not the events on April
23
24
5th or 6th.
24
25
MR. JAMIESON: Just so that I'm clear when we get
25
Page 7361
1
back here on Thursday to deal with this issue, is the
1
2
city's intention to treat this report that has been
2
3
handed to me right now in the same way as the other
3
4
reports under 1280 or is it simply going to be his
I 4
5
testimony without attempting to include the report?
1 5
6
MS. AILIN: My intention initially was to just have
6
7
him testify and not include the report --
7
8
MR. JAMIESON: Okay.
8
9
MS. AILIN: -- because the report had not been
9
10
provided previously. You were the one who brought up
10
11
the report.
11
12
MR. JAMIESON; I'm the one who -- go ahead.
12
13
MS. AILIN: If we are going to have the report,
13
14
then I would treat it under 1280, Evidence Code 1280 as
14
15
1 did the other reports.
is
16
MR. JAMIESON: Talk about getting sideswiped and
16
17
sandbagged here. My gosh, a witness is proffered at the
17
18
last moment for an incident that was not identified or
1 18
19
contemplated until just a few minutes ago. He is going
19
20
to testify to something that we have never been made
20
21
aware, have never been told about, didn't have any
21
22
attempt or ability to prepare, and then because of
22
23
course he does a report, to give us some ability to
23
24
cross- examine, and then we are told because we asked for
24
25
the report so that we can have the ability to
25
28 (Pages 735 to 738)
Page 737
cross - examine in some way, now all of a sudden they are
going to attempt to introduce it by 1280. That's just
absolutely ridiculous. That's a real sandbag way to go.
MS. AILIN: I can do it without the report. I was
planning to do it without the report.
THE HEARING OFFICER: Well, then, let's do it '..
without the report, and then let's do it Thursday. The
only trouble is you don't know what the testimony is
going to be at all except -- unless you keep the report.
MR. JAMIESON: I gather I'm going to be allowed to
keep the report, which is -- prior to this hearing we
did public records requests. We did discovery requests
kinds of things, so we can try to get what the city has,
so at least we have some ability to prepare. And
certainly this wasn't provided, but I wouldn't expect it
to be because we did that request --
MS. AILIN: It didn't happen yet.
MR. JAMIESON: That's right. So now that we have
got it and if the city is not going to use it under
1280, then we should be able to have it, so that we can
at least try and prepare some cross- examination for the
testimony, and I would also request that the hearing
officer not be provided a copy of the report for all of
those reasons.
THE HEARING OFFICER: That's fine with me. If
Page 738
that's the way you want to proceed, then well do it
that way. Well do it without -- the report will not be
given to me. I guess you will keep a copy of it; is
that --
MS. AILIN: That's fine.
THE HEARING OFFICER: And then Officer Hardy will
be examined on Thursday, cross- examined on Thursday, and
then well go on to argument.
So did you have a couple of questions you
wanted to ask him?
MS. AILIN: I do have a couple more questions,
that's correct.
Q. Officer Hardy, are you as a result ofworldng
for the Newport Beach Police Department familiar with
the boundaries of the various reporting districts within
the Newport Beach area?
A. Yes.
Q. Are you familiar with the boundaries of
reporting District 34?
A. Yes.
Q. Are you familiar with the establishments
within reporting District 34 that are authorized to
serve or licensed to serve alcoholic beverages?
A. Yes.
Q. During calendar year 2007, did any licensee
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Q. When you fill out your reports for various
things that you observe in the City of Newport Beach, do
you routinely include the reporting district number on
the reports?
A. Yes.
Q. And where on a report is that generally
located?
A. In the top section somewhere.
MS. AILIN: It's in the upper right -hand comer
below the DR number.
BY MR. JAMESON:
Q. So looking at what you referred to as Exhibit
30 and it says RD of occurrence 34, do you see that?
A. Yep.
Q. Is that "yes "?
A. Yes.
Q. If the — have you ever written any reports
concerning driving under the influence stops or arrests?
A. Yes.
Q. And when you write those reports and you BB
out the RD of occurrence, is it correct that the RD of
occurrence is where you stopped the vehicle?
A. Yes.
Q. Not where the people were apparently drinking
the alcohol, true?
Page 742
A. True.
Q. Now, for the last couple of years you have
been on bicycle detail for the City of Newport Beach,
but on January 26, 2008 you were not on bicycle detail,
correct, or at least at the time when you were at Fury
on that night?
A. At the time we were at Fury, no.
Q. How was it -- strike that.
Who asked you to go to Fury that night of
January 26?
A. I believe it was Detective Jones.
Q. And how many years have you been with Newport
Beach P.D.?
A. Five.
Q. And during the five years did you do any vice?
A. No.
Q. During the five years did you do any counting
out of any restaurants in the City of Newport Beach?
MS. AILIN: Other than the one reflected in this
report?
BY MR. JAMIESON:
Q. Other than January 26,2008?
A. I have counted many restaurants like the
amoant of patrons. I have not actually counted out
where you count them out and stop everyone and want
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Page 739,
1
authorized to serve alcoholic beverages other than Fury
1
2
open for business within reporting District 34?
2
3
THE HEARING OFFICER: You mean newly open for
3
4
business? j
4
5
MS. AILIN: Newly open for business.
5
6
THE WITNESS: There are a couple of restaurants.
6
7
Like there was a Persian restaurant, but rm not
7
8
actually like -- none that I know other than Fury.
e
9
BY MS. AIUN!
9
10
Q. That are alcohol licensees?
10
11
A. Yeah, I'm not — I don't know exactly which
11
12
restaurants opened up, but I know there is one up there
12
13
that I believe opened up around the same time. It's not
13
14
really a licensed — it's like a restaurant more.
14
15
MS. AILIN: I have no further questions at this
15
16
time.
16
17
entire eastern district.
17
18
CROSS - EXAMINATION
18
19
BY MR. JAMIESON:
19
20
Q. Officer, the Persian restaurant that you are
20
21
talking about, 1 gather, does have an ABC license, to
21
22
your knowledge?
22
23
A. I have no idea. I just know that it opened up
23
24
an
in the same area. I don't know if it has alcohol
24
25
license.
25
47 \Ycty C,T /37 LU /Y6J
Page 7411
Q. When you fill out your reports for various
things that you observe in the City of Newport Beach, do
you routinely include the reporting district number on
the reports?
A. Yes.
Q. And where on a report is that generally
located?
A. In the top section somewhere.
MS. AILIN: It's in the upper right -hand comer
below the DR number.
BY MR. JAMESON:
Q. So looking at what you referred to as Exhibit
30 and it says RD of occurrence 34, do you see that?
A. Yep.
Q. Is that "yes "?
A. Yes.
Q. If the — have you ever written any reports
concerning driving under the influence stops or arrests?
A. Yes.
Q. And when you write those reports and you BB
out the RD of occurrence, is it correct that the RD of
occurrence is where you stopped the vehicle?
A. Yes.
Q. Not where the people were apparently drinking
the alcohol, true?
Page 742
A. True.
Q. Now, for the last couple of years you have
been on bicycle detail for the City of Newport Beach,
but on January 26, 2008 you were not on bicycle detail,
correct, or at least at the time when you were at Fury
on that night?
A. At the time we were at Fury, no.
Q. How was it -- strike that.
Who asked you to go to Fury that night of
January 26?
A. I believe it was Detective Jones.
Q. And how many years have you been with Newport
Beach P.D.?
A. Five.
Q. And during the five years did you do any vice?
A. No.
Q. During the five years did you do any counting
out of any restaurants in the City of Newport Beach?
MS. AILIN: Other than the one reflected in this
report?
BY MR. JAMIESON:
Q. Other than January 26,2008?
A. I have counted many restaurants like the
amoant of patrons. I have not actually counted out
where you count them out and stop everyone and want
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Page 740
1
Q. You are not familiar with all the alcohol
1
2
licensees within reporting District 34, are you, as you
2
3
sit here today?
3
4
A. No, I am pretty much, yes.
4
5
Q. This Persian restaurant sells alcohol?
5
6
A. I don't know. Never been in there. I just
6
7
know it opened in 2007.
7
B
Q. There are other locations within reporting !
e
9
District 34 besides Fury that are licensed to sell
9
10
alcohol; is that right?
10
11
A. Yes.
11
12
Q. What are the geographic boundaries of !
12
13
reporting District 34?
13
14
A. It's from the northbound Bristol to the !
14
15
southern district of it. Campus goes around, turns as '
15
16
the entire northern district, and then Jamboree is the
16
17
entire eastern district.
17
18
Q. Approximately how many square miles is that?
18
19
A. I don't know.
19
20
Q. Approximately how many square feet is that?
20
21
A. I have no idea.
21
22
Q. Approximately how many alcohol licensees
22
23
existed within that reporting district in 20071
23
24
A. I believe there were five. Five or six,
24
25
something like that.
25
47 \Ycty C,T /37 LU /Y6J
Page 7411
Q. When you fill out your reports for various
things that you observe in the City of Newport Beach, do
you routinely include the reporting district number on
the reports?
A. Yes.
Q. And where on a report is that generally
located?
A. In the top section somewhere.
MS. AILIN: It's in the upper right -hand comer
below the DR number.
BY MR. JAMESON:
Q. So looking at what you referred to as Exhibit
30 and it says RD of occurrence 34, do you see that?
A. Yep.
Q. Is that "yes "?
A. Yes.
Q. If the — have you ever written any reports
concerning driving under the influence stops or arrests?
A. Yes.
Q. And when you write those reports and you BB
out the RD of occurrence, is it correct that the RD of
occurrence is where you stopped the vehicle?
A. Yes.
Q. Not where the people were apparently drinking
the alcohol, true?
Page 742
A. True.
Q. Now, for the last couple of years you have
been on bicycle detail for the City of Newport Beach,
but on January 26, 2008 you were not on bicycle detail,
correct, or at least at the time when you were at Fury
on that night?
A. At the time we were at Fury, no.
Q. How was it -- strike that.
Who asked you to go to Fury that night of
January 26?
A. I believe it was Detective Jones.
Q. And how many years have you been with Newport
Beach P.D.?
A. Five.
Q. And during the five years did you do any vice?
A. No.
Q. During the five years did you do any counting
out of any restaurants in the City of Newport Beach?
MS. AILIN: Other than the one reflected in this
report?
BY MR. JAMIESON:
Q. Other than January 26,2008?
A. I have counted many restaurants like the
amoant of patrons. I have not actually counted out
where you count them out and stop everyone and want
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30 (Pages 743 to 746)
Page 745
Q. Prior to January 26, 2008 you have already
stated now that contrary to your previous testimony you
have never estimated any location with the number of
patrons over 400, right?
A. Correct.
Q. So the very first time that you visually
estimated such a thing was at Fury that night, correct?
A. Correct.
Q. On January 26, 2008, the subject of your
report in Exhibit 30, you were not the person that
counted out the people inside, correct?
A. I did the estimation of the amount of people
inside.
MR. JAMIESON: Move to strike as being
nonresponsive.
Q. You were not the person that counted out the
people that night, right?
A. I did count when I was inside.
Q. Is it correct that when you were present at
Fury on January 26, 2008 you observed people being
ushered out of the place and someone mechanically
counting out; is that right?
A. One other officer did mechanically count out
using the clicker, correct.
Q. And you were not the officer that mechanically
Page 746
counted out the people as they exited Fury that night;
is that true?
A. That is true.
Q. And that officer who you observed using a
push -button hand counter was an Officer Dugan, correct?
A. Right.
Q. What is Dugan's first name, to your knowledge?
A. Shawn.
Q. Does Officer Dugan still work for N.B.P.D.?
A. Yes, he does.
Q. Now, the report reflects that Officer Yee
counted the patrons using pen and paper, so that means
that Officer Yee actually had a piece of paper and was
writing down the number of people as they were exiling;
is that true?
A. 1 believe he was doing hash marks.
Q. Hash marks to reflect the number of people
going out the door, correct?
A. Yes.
Q. How many exits and entrances are there at
Fury?
A. Three.
Q. And which exit was being used to count out the
people that night?
A. The primary entry off the parking lot.
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3''P-
Page 7431
1
individually, no.
1
2
Q. When you say you go into a restaurant and you
2
3
count it out, on those instances is it Correct that in
3
4
those instances that you didn't use any kind of counting
4
5
device to do that ".
5
6
A. You mean when I estimated?
6
7
Q. When you estimated, exactly. When you
7
8
estimated the number of people in a restaurant, you did
8
9
so as a result of your visual observation but without
9
10
using a counting mechanical device, true?
10
11
A. True.
11
12
Q. And when you visually estimated on those
12
13
occasions, these were in restaurants where you would be
13
14
estimating approximately how many people?
14
15
A. Anywhere from 100 to 400.
is
16
Q. What other location did you ever estimate
16
17
having approximately 400 prior to January 6, 2008?
17
18
A. Never actually up to 400. Probably around
18
19
300 plus.
19
20
Q. What other restaurant did you estimate up to
20
21
300,then?
21
22
A. There has been Muldoon's. There has been
22
23
Temptations. There has been the Blue Beet. I can't
23
24
recall any more offhand.
24
25
Q. And in each of those locations do you know as
25
Page 744
1
you sit here today what the occupancy limit was?
1
2
A. No, I do not.
2
3
Q. And in any of those or on any of those
3
4
instances where you visually estimated the number of
4
5
people at Muldoon's, Temptations or Blue Beet, did you
5
6
ever have your visual estimation confirmed by using a
6
7
mechanical device to actually count out people?
7
8
A. No.
8
9
Q. So you don't know if those were right or wrong
9
10
on those cases, do you?
10
11
A. That's why they are estimations. I do not
11
12
know whether they were exact.
12
13
Q. Whether they were exact or not, you don't know
13
14
if they were right or wrong, whether your estimates were
14
15
right or wrong?
15
16
A. It's my estimation.
j 16
17
Q. When you state in your report of January 26
17
18
that your visual estimate of the amount of patrons in
18
19
the restaurant, that's your word, "restaurant" for Fury,
19
20
right?
I 20
21
A. If that's what 1 wrote, yeah.
21
22
Q. And the restaurant was over 400, you had never
22
23
actually counted out or even estimated anybody or any
23
24
place that was over 400, true?
24
25
A. I'm sorry. Repeat the question.
25
30 (Pages 743 to 746)
Page 745
Q. Prior to January 26, 2008 you have already
stated now that contrary to your previous testimony you
have never estimated any location with the number of
patrons over 400, right?
A. Correct.
Q. So the very first time that you visually
estimated such a thing was at Fury that night, correct?
A. Correct.
Q. On January 26, 2008, the subject of your
report in Exhibit 30, you were not the person that
counted out the people inside, correct?
A. I did the estimation of the amount of people
inside.
MR. JAMIESON: Move to strike as being
nonresponsive.
Q. You were not the person that counted out the
people that night, right?
A. I did count when I was inside.
Q. Is it correct that when you were present at
Fury on January 26, 2008 you observed people being
ushered out of the place and someone mechanically
counting out; is that right?
A. One other officer did mechanically count out
using the clicker, correct.
Q. And you were not the officer that mechanically
Page 746
counted out the people as they exited Fury that night;
is that true?
A. That is true.
Q. And that officer who you observed using a
push -button hand counter was an Officer Dugan, correct?
A. Right.
Q. What is Dugan's first name, to your knowledge?
A. Shawn.
Q. Does Officer Dugan still work for N.B.P.D.?
A. Yes, he does.
Q. Now, the report reflects that Officer Yee
counted the patrons using pen and paper, so that means
that Officer Yee actually had a piece of paper and was
writing down the number of people as they were exiling;
is that true?
A. 1 believe he was doing hash marks.
Q. Hash marks to reflect the number of people
going out the door, correct?
A. Yes.
Q. How many exits and entrances are there at
Fury?
A. Three.
Q. And which exit was being used to count out the
people that night?
A. The primary entry off the parking lot.
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31 trctyCoi /'if UU rDvl
Page 7491
me they were guarding the door not letting anyone out.
MR. JAMIESON: I'm going to move to strike as
nonresponsive.
Can I get a ruling on that? When he says he
has got personal knowledge because somebody told him
something, that's not personal knowledge, and I didn't
ask him what somebody said to him. I said, what do you
have personal knowledge that you saw.
THE DARING OFFICER: Well, if you asked him what
-- I'm sorry. I didn't hear the previous question. Is
it correct that he asked him what did you see
personally?
MR. JAMIESON: Yes.
THE WITNESS: No.
BY MR. JAMIESON:
Q. You did not see what they were doing at that
third door, correct?
A. That is correct.
THE HEARING OFFICER: Does that clarify the
objection and the testimony.)
MR JAMIESON: It takes care of it.
Q. Now, with respect to the Information that you
identify in your report that's identified as Exhibit 30
where you state 518 people, that's actually from a
conversation you had with Officer Dugan and you say yon
Page 750
had with Officer Yee; is that right?
A. Yes.
Q. Even though you weren't the person who
mechanically counted out the people and you weren't the
person that wrote down on a sheet of paper with hash
marls the number of people that were leaving the place,
it was nevertheless you that signed the citation that
was issued to David Gonzalez that night, correct?
A. Correct
Q. And that citation was never actually filed as
a case in a criminal court, to your knowledge, was it?
A. I have no idea.
Q. You were never called to a criminal court to
testify for it, were you?
A. Na
Q. Did you ever have a conversation with a city
attorney or district attorney as to whether or not there
was to be a prosecution filing on that citation?
A. No.
Q Did the prosecution — strike that.
Did a city attorney or district attorney ever
tell you that they were not — or advise in writing in
any way that they were not going to file on this
citation that you issued that you signed because you had
no personal knowledge of what occurred that night?
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Page 7471
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Q. Roughly that would be facing north; is that
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true?
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A. Yes.
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Q. And were you manning or guarding the other
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two, the remaining two exits?
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A. No, we had other officers on the scene.
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Q. But you were at the front door?
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Q. So you don't know what those other two
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counted out for those other two exits, correct? You
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don't have personal knowledge of that true?
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Q. Really? Where was door No. 2?
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A. Door No. 2 is right behind me on the patio.
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Q. Where was door Na 3?
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A. Right around the corner.
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Q. Right around the corner where?
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A. Around the corner of the parking lot.
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Q. Isn't door No. 3 the third door that you are
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talking about at the very east edge of that building?
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A. Yeah.
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Q. And isn't it also toward the back?
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A. Yes, it is.
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Q. And that would be approximately, oh, I'd say
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Page 748
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2- or 300 feet from the front door?
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A. That's about right
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Q. And you got a visual estimate of 400 people
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being in this place, so you are looking across and you
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can actually see that door at that time?
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A. No, I could see the door behind me. I could
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we all of the doors.
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Q. You said there were three doors?
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A. Correct.
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Q. You said you could see door No. 2, which is
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behind you, and f understand that Then you said you
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could see door No. 3, but you couldn't see door No. 3?
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A. No, I said I could see officers at the door.
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1 didn't say which doors.
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Q. Okay. Officer, I would appreciate it if you
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could listen to my question, answer my question. The
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third door — there was a third exit to this location —
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A. Uh -huh.
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Q. — you could not see from your location at the
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front door; is that true?
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A. Yes.
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Q. You don't have any personal knowledge of what
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occurred at that third door during that count out
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process; is that true?
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A. I had personal knowledge from someone telling
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Page 7491
me they were guarding the door not letting anyone out.
MR. JAMIESON: I'm going to move to strike as
nonresponsive.
Can I get a ruling on that? When he says he
has got personal knowledge because somebody told him
something, that's not personal knowledge, and I didn't
ask him what somebody said to him. I said, what do you
have personal knowledge that you saw.
THE DARING OFFICER: Well, if you asked him what
-- I'm sorry. I didn't hear the previous question. Is
it correct that he asked him what did you see
personally?
MR. JAMIESON: Yes.
THE WITNESS: No.
BY MR. JAMIESON:
Q. You did not see what they were doing at that
third door, correct?
A. That is correct.
THE HEARING OFFICER: Does that clarify the
objection and the testimony.)
MR JAMIESON: It takes care of it.
Q. Now, with respect to the Information that you
identify in your report that's identified as Exhibit 30
where you state 518 people, that's actually from a
conversation you had with Officer Dugan and you say yon
Page 750
had with Officer Yee; is that right?
A. Yes.
Q. Even though you weren't the person who
mechanically counted out the people and you weren't the
person that wrote down on a sheet of paper with hash
marls the number of people that were leaving the place,
it was nevertheless you that signed the citation that
was issued to David Gonzalez that night, correct?
A. Correct
Q. And that citation was never actually filed as
a case in a criminal court, to your knowledge, was it?
A. I have no idea.
Q. You were never called to a criminal court to
testify for it, were you?
A. Na
Q. Did you ever have a conversation with a city
attorney or district attorney as to whether or not there
was to be a prosecution filing on that citation?
A. No.
Q Did the prosecution — strike that.
Did a city attorney or district attorney ever
tell you that they were not — or advise in writing in
any way that they were not going to file on this
citation that you issued that you signed because you had
no personal knowledge of what occurred that night?
Precise Reporting Service
714 - 647 -9099
FURY REVOCATION HEARING - 4/22/2008
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Page 752
Q. Were you ever told in writing that the reason
that there was no filing, criminal filing on the
citation that you issued that night was because the
count out was done incorrectly?
A. No.
Q. And were you ever advised in any way that this
citation resulted in a conviction of any kind in any way
of Mr. Gonzalez for overcrowding or blocked aisles?
A. No.
MR. JAMIESON: I have nothing further.
THE HEARING OFFICER: Redirect?
MS. AILIN: Yes, I j ust have a few questions.
REDIRECT EXAMINATION
BY MS. AMIN:
Q. Officer Hardy, on January 26, 2008 you were
Inside Fury?
A. Yes, at some point.
Q. And you also testified that you had counted
patrons at Muldoon's?
A. Yes.
Q. So you have been inside Muldoon's?
A. Yes.
Q. Having seen the interior of Muldoon's and seen
the interior of Fury, with reference to the areas of
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Page 753
both of those establishments that are open to patrons,
which one would you estimate is larger?
MIL JAMIESON: Objection; lacks foundation, calls
for speculation, irrelevant, 352.
THE HEARING OFFICER: Overruled.
THE WITNESS: As far as space, I would think
Muldooris is larger, but that's just from space -wise it
looks larger.
BY MS. AMIN:
Q. And you testified that you estimated the
number of persons inside Temptations. Have you been
inside Temptations?
A. Temptations, yes.
Q. Having been inside Temptations and having been
inside Fury, with regard to the areas of those
establishments that are open to patrons, which would you
say is larger?
MR. JAMIESON: Objection; same bases, calls for
speculation, lacks foundation, irrelevant.
THE HEARING OFFICER: Overruled,
THE WITNESS: Temptations is much larger because
they can actually open an area and have two separate
areas.
BY MS. AI-IN:
Q. And you mentioned that you estimated patrons
Page 754
inside Blue Beet You have been inside Blue Beet?
A. Yes.
Q. And based on your observations inside Blue
Beet and Fury, with regard to the area of both of
those establishments that's open to patrons, which
would you say is larger?
A. Fury —
MR. JAMIESON: Objection; lacks foundation, calls
for speculation, irrelevant.
THE HEARING OFFICER: Overruled.
THE WITNESS: Fury is larger.
BY MS. AILIN:
Q. Now, Mr. Jamieson questioned you about your
ability to see the other doors at Fury. You ultimately
testified that you couldn't we the doors. Could you
see the officers who were outside those doors preventing
people from leaving?
MR. JAMIESON: Objection; which doors? Vague and
ambiguous.
MS. AILIN: Doors 2 and 3.
THE WITNESS: I could see the officers of doors 2,
not at 3. 3 is on the west side.
MS. AUN: I have nothing further.
MR. JAMIESON: Nothing further.
THE HEARING OFFICER: Thank you. I guess we will
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3,31
Page 751
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A. I'm sorry. You are going to have to repeat
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that question.
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MR. JAMIESON: Could the court reporter read it
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back, please?
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(Record read.)
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MS. AILIN: I'm going to object on the grounds that
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1 believe the previous question was whether he had ever
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had a conversation with the city attorney or district
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attorney about whether they were going to file on the
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citation, and if he didn't have that conversation, when
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would he have had a conversation about the reason why
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they weren't going to Ile?
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writing, which didn't come across that way when it was
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read back, but it said or in writing -- let me withdraw
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and just restate it. It's not that important.
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THE HEARING OFFICER: Please do.
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BY MR. JAMIESON:
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Q. Officer, were you ever told in writing by any
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district attorney or city attorney that the reason that
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there was no criminal filing based on the, itation that
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you signed that night was because you had no personal
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knowledge of the events that you issued the citation
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for?
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A. No, I was never told that.
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Page 752
Q. Were you ever told in writing that the reason
that there was no filing, criminal filing on the
citation that you issued that night was because the
count out was done incorrectly?
A. No.
Q. And were you ever advised in any way that this
citation resulted in a conviction of any kind in any way
of Mr. Gonzalez for overcrowding or blocked aisles?
A. No.
MR. JAMIESON: I have nothing further.
THE HEARING OFFICER: Redirect?
MS. AILIN: Yes, I j ust have a few questions.
REDIRECT EXAMINATION
BY MS. AMIN:
Q. Officer Hardy, on January 26, 2008 you were
Inside Fury?
A. Yes, at some point.
Q. And you also testified that you had counted
patrons at Muldoon's?
A. Yes.
Q. So you have been inside Muldoon's?
A. Yes.
Q. Having seen the interior of Muldoon's and seen
the interior of Fury, with reference to the areas of
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Page 753
both of those establishments that are open to patrons,
which one would you estimate is larger?
MIL JAMIESON: Objection; lacks foundation, calls
for speculation, irrelevant, 352.
THE HEARING OFFICER: Overruled.
THE WITNESS: As far as space, I would think
Muldooris is larger, but that's just from space -wise it
looks larger.
BY MS. AMIN:
Q. And you testified that you estimated the
number of persons inside Temptations. Have you been
inside Temptations?
A. Temptations, yes.
Q. Having been inside Temptations and having been
inside Fury, with regard to the areas of those
establishments that are open to patrons, which would you
say is larger?
MR. JAMIESON: Objection; same bases, calls for
speculation, lacks foundation, irrelevant.
THE HEARING OFFICER: Overruled,
THE WITNESS: Temptations is much larger because
they can actually open an area and have two separate
areas.
BY MS. AI-IN:
Q. And you mentioned that you estimated patrons
Page 754
inside Blue Beet You have been inside Blue Beet?
A. Yes.
Q. And based on your observations inside Blue
Beet and Fury, with regard to the area of both of
those establishments that's open to patrons, which
would you say is larger?
A. Fury —
MR. JAMIESON: Objection; lacks foundation, calls
for speculation, irrelevant.
THE HEARING OFFICER: Overruled.
THE WITNESS: Fury is larger.
BY MS. AILIN:
Q. Now, Mr. Jamieson questioned you about your
ability to see the other doors at Fury. You ultimately
testified that you couldn't we the doors. Could you
see the officers who were outside those doors preventing
people from leaving?
MR. JAMIESON: Objection; which doors? Vague and
ambiguous.
MS. AILIN: Doors 2 and 3.
THE WITNESS: I could see the officers of doors 2,
not at 3. 3 is on the west side.
MS. AUN: I have nothing further.
MR. JAMIESON: Nothing further.
THE HEARING OFFICER: Thank you. I guess we will
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3,31
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FURY REVOCATION HEARING - 4/22/2008
Page 755
see you again on Thursday.
THE WITNESS: Thank you, sir.
(Discussion ensued off the record.)
MR. JAMIESON: May 1 proceed?
THE HEARING OFFICER: Proceed.
MR. JAMIESON: Sir, can you state your name and
spell it for the record, please?
MS. AIUN: Could we swear the witness?
MR. JAMIESON: Yeah, let's do that. Sorry.
Forgot.
SEVAN ABDESSIAN,
having been first duly administered an
oath in accordance with CCP 2094, was
examined and testified as follows:
DIRECT EXAMINATION
BY MR, JAMIESON:
Q. Sir, please state your name and spell it for
the record
A. My name is Sevan Abdessian, S- a -v -a -n
A- b- d- e- s- s- i -a -n, but I want to say that on publication
my last name is A- z- a- r- i -a -n.
Q. Why is that?
A. Just a personal issue, to be honest.
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Page 757
A. Okay.
Q. I ask you first to just stand up and show the
hearing officer, Mr. Allen, and also describe what this
embroidery is, the colors first.
A. The colors are Fury logo and under it is white
embroidery, and It says chef on it.
Q. Now, I remember that at one point you bad
mentioned you have a hat of some sort that you wear?
A. Correct.
Q. Can you describe that hat?
A. Very similar to a sushi cap,1 would call it,
used in a sushi restaurant. It's (indicating).
Q. Is it tall?
A. No, it's not tall. It's short, rectangular,
and it just kind of keeps the hair out of the food. I
have a lot hair.
Q. All right. Chef Sevan? How did you first
learn to be a chef? Give us a bit of your background,
education and experience.
A. My background, education, I'm one of those
kids that basically saw their parents be in the
food industry and one of those kids that never got
to see my grandparents because they worked very
hard, and 1 ended up in it.
Q. How old are you now?
Page 758
A. 31.
Q. And how long have you been doing this?
A. 16.
Q. Since you were 16?
A. Correct, high school.
Q. So that's about 15 years?
A. Correct.
Q. Have you had formal training to be a chef?
A. Yes.
Q. What type of formal training have you had?
A. It's called an associates of occupational
studies, and it was given to roe by the California
Culinary Academy in San Francisco in the year 1998.
Q. What type of educational process did you go
through to obtain that degree?
A. It's a two -year program, very extensive.
Probably one of the top chef schools in the nation from
learning numbers to learning pastry, wedding cakes,
cooking, et cetera.
Q And how long is that process? About how long
was that educational process?
A. Two -year program.
Q. During that two-year program did you live up
there?
A. Correct, 1 worked up In San Francisco and
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Page 756'
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Q. Difficult for people to spell your name?
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A. No, it's my mom's maiden nice, so. It's
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supported by my family, so —
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Q. Now, l noticed that when I called you up on
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the telephone your voice mail says Chef Sevan; is that
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right?
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A. Yes.
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Q. Are you, in fact, a chef:
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A. Yes.
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Q. What are you wearing today?
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A. A chef mat and my jeans and my clogs.
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Q. What is this chef coat? Could you describe
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that for the record, please?
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A. A chef mat is custom made and provided by the
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owners of Fury, and it's embroidered, and we have white
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ones and black ones, me and my sous chef who is second
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in command, and it's just something to protect us while
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we are cooking and looks professional, and it's been the
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outfit for 200 years.
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Q. Is that — not with you?
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A. No, as a chef coat in general.
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Q. Now, with respect to the chef coat that you
22
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have, you have identified as embroidered, and I realize
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it's easy for us to see that one, but one of the things
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we have to do is make sure it's in the record.
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Page 757
A. Okay.
Q. I ask you first to just stand up and show the
hearing officer, Mr. Allen, and also describe what this
embroidery is, the colors first.
A. The colors are Fury logo and under it is white
embroidery, and It says chef on it.
Q. Now, I remember that at one point you bad
mentioned you have a hat of some sort that you wear?
A. Correct.
Q. Can you describe that hat?
A. Very similar to a sushi cap,1 would call it,
used in a sushi restaurant. It's (indicating).
Q. Is it tall?
A. No, it's not tall. It's short, rectangular,
and it just kind of keeps the hair out of the food. I
have a lot hair.
Q. All right. Chef Sevan? How did you first
learn to be a chef? Give us a bit of your background,
education and experience.
A. My background, education, I'm one of those
kids that basically saw their parents be in the
food industry and one of those kids that never got
to see my grandparents because they worked very
hard, and 1 ended up in it.
Q. How old are you now?
Page 758
A. 31.
Q. And how long have you been doing this?
A. 16.
Q. Since you were 16?
A. Correct, high school.
Q. So that's about 15 years?
A. Correct.
Q. Have you had formal training to be a chef?
A. Yes.
Q. What type of formal training have you had?
A. It's called an associates of occupational
studies, and it was given to roe by the California
Culinary Academy in San Francisco in the year 1998.
Q. What type of educational process did you go
through to obtain that degree?
A. It's a two -year program, very extensive.
Probably one of the top chef schools in the nation from
learning numbers to learning pastry, wedding cakes,
cooking, et cetera.
Q And how long is that process? About how long
was that educational process?
A. Two -year program.
Q. During that two-year program did you live up
there?
A. Correct, 1 worked up In San Francisco and
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FURY REVOCATION HEARING - 4/22/2008
34 (Pages 759 to 762)
Page 761
experience, were you always doing this as a chef?
A. Correct.
Q. What types of chefs are there, in general?
You mentioned something like a was chef and you're an
executive chef:
A. Yes.
Q. Give some idea for those of us who don't know
what you do and are not familiar with your area.
A. Sous is actually a French word meaning under.
I have been a sous chef a long time, and then I — you
kind of work up the ranks, and based on numbers and
performance and your leadership skills you get moved up
in the ranks and become an executive chef, which is, I
should say, the captain of the kitchen where then you
are responsible for your employees' actions and your
employees' performance and up to 25 guys to 95.
Q. Just so that it's — Frn going to stand over
here, so that when you are speaking the hearing officer
can see you and the court reporter can hear and see
you. So, Chef Sevan, when were you first approached by
the people related to the Fury restaurant?
A. I was approached by the people from the Fury
restaurant in probably late March.
Q. Of what year?
A. Of '07.
Page 762
Q. And in late March of '07 how was it that you
were approached by the people of Fury?
A. The people at Fury somehow got ahold of my
portfolio, which is on -line somewhere out there. 1
don't know how necessarily they got that. And called me
and approached me and told me about a concept that they
are thinking of and they were looking for an executive
chef.
Q. At that time what were you told the concept of
Fury was to be?
A. 1 was told it was going to be a concept like
Koi, which is a Los Angeles -based restaurant.
Q. Is that K-04
A. K-o-i, correct, like the fish. 1 was told
that it could be like the Sushi Baku, which is another
very successful restaurant chain in the Los Angeles area
and beyond. So 1 kind of meshed those together and, you
know, pan Asian and, you know, not sticking just to
Szechwan but Japanese flavors and some other Asian
flavors. For me it was the first time I had actually
done an Asian concept, and that's why 1 was excited
about the project.
Q. At that point in time who did you meet with?
A. His name was Brian Schillizzi.
Q. And David Gonzalez is sitting here today,
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Page 759
1
worked at a restaurant on the side while I was going to
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school.
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Q. You said you got there in about 1998, so
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that's about 10 areas ago as we sit here today?
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A. Correct.
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Q. During the last ten years since you graduated
6
7
with that degree and with that training, what in
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chronological or roughly what has been your experience
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as a chef:
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A. Chronological order, I was working a very
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exclusive company prior to being up in San Francisco
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called Patina Group. After I finished school they had
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an agreement with me to come back to their flagship
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restaurant in Los Angeles, which I spent another three
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years at.
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Q. You need to slow down. Both of us tend to
16
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talk quickly, and it's difficult I know, but just slow,
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down.
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A. Sure.
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Q. So you worked for Patina Group, P- a- t- i -n -a?
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A, P- a- t -i -n -a Group. They have 41 restaurants
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now, very successful. I was with them when they were
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just a baby, as we would say, eight to ten restaurants.
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Helped develop other restaurants for the company, kind
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of phased out of the restaurants and got offers with an
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1
agent for being the chef for exclusive clients like Adam
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and, you know, private, affluent families.
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Q. You mentioned Adam. Adam who?
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A. Adam Sandler from Happy Madison Productions,
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which I'm sure most people are familiar with.
5
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Q. The actor Adam Sandler?
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A. Correct.
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Q. And you said also for private affluent
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families?
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A. Correct.
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Q. How long did you do that?
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A. I did that for about another almost five
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years. During that time I did a lot of restaurant
13
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consulting on the side, a lot of affluent families, a
14
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lot of these celebrities don't need a private chef 24
15
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hours day, and they go on hiatus and on vacation, so 1
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would have a paid job, which wasn't that bad a gig, and
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at the same time I'm doing that I got to go to Sidney
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and open up restaurants or Lebanon and open up
19
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restaurants there.
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Q. Sidney, Australia?
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A. Correct.
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Q. And Lebanon, the country?
23
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A. Yes.
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Q. In your travels and in gaining this
j 25
34 (Pages 759 to 762)
Page 761
experience, were you always doing this as a chef?
A. Correct.
Q. What types of chefs are there, in general?
You mentioned something like a was chef and you're an
executive chef:
A. Yes.
Q. Give some idea for those of us who don't know
what you do and are not familiar with your area.
A. Sous is actually a French word meaning under.
I have been a sous chef a long time, and then I — you
kind of work up the ranks, and based on numbers and
performance and your leadership skills you get moved up
in the ranks and become an executive chef, which is, I
should say, the captain of the kitchen where then you
are responsible for your employees' actions and your
employees' performance and up to 25 guys to 95.
Q. Just so that it's — Frn going to stand over
here, so that when you are speaking the hearing officer
can see you and the court reporter can hear and see
you. So, Chef Sevan, when were you first approached by
the people related to the Fury restaurant?
A. I was approached by the people from the Fury
restaurant in probably late March.
Q. Of what year?
A. Of '07.
Page 762
Q. And in late March of '07 how was it that you
were approached by the people of Fury?
A. The people at Fury somehow got ahold of my
portfolio, which is on -line somewhere out there. 1
don't know how necessarily they got that. And called me
and approached me and told me about a concept that they
are thinking of and they were looking for an executive
chef.
Q. At that time what were you told the concept of
Fury was to be?
A. 1 was told it was going to be a concept like
Koi, which is a Los Angeles -based restaurant.
Q. Is that K-04
A. K-o-i, correct, like the fish. 1 was told
that it could be like the Sushi Baku, which is another
very successful restaurant chain in the Los Angeles area
and beyond. So 1 kind of meshed those together and, you
know, pan Asian and, you know, not sticking just to
Szechwan but Japanese flavors and some other Asian
flavors. For me it was the first time I had actually
done an Asian concept, and that's why 1 was excited
about the project.
Q. At that point in time who did you meet with?
A. His name was Brian Schillizzi.
Q. And David Gonzalez is sitting here today,
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FURY REVOCATION HEARING - 4/22/2008
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Page 765
kitchen, where on this diagram does it constitute the
kitchen area?
A. I would assume this area.
Q. I don't want you to assume. You have been
there lots of times, haven't you?
A. No, I'm assuming — how this looks is a little
confusing. I don't know how to say, but yes, this is
the kitchen right here.
Q. Now, was there a dance floor at the premises
at the time when you walked in for the first time
A. Yes.
Q. And where roughly was that?
A. Where it states in the diagram, where it says
no dance floor.
Q. Well, actually it says age or and or
something; do you see that?
A. Right, that is — yes.
Q. So where it says dance floor, that's where you
saw the dance floor at that time?
A. Correct.
Q. Since that time the dance floor has always
been roughly in that location?
A. Not roughly, it has been in that location,
yes.
Q. There is also an area down here that has the
Page 766
word "bar" in it. Was there a bar in there at the
time?
A. Correct, yes.
Q. Back to the right on this diagram starting
where you were pointing out where the kitchen is
located, did you change any walls as a result of your
review that you wanted to do?
A. No.
Q. What did you do to make this kitchen your own?
A. I did a thorough steam cleaning of it was the
first thing. Then we brought in people to kind of work
on the equipment. 1 thought that the equipment was very
sufficient. It just needed some tuning up as we say,
and then 1 basically took out all the old equipment that
was kind of under the level of non - usable and bought a
new line of three ovens with burners and a sushi setup
area.
Q. Where did you install the sushi setup area?
A. Well, we didn't actually install it We just
implemented it onto the line as we created it.
Q. Where did you implement it with creativity on
the line?
A. Right here.
Q. Now, you are pointing out in this diagram the
top right -hand corner; is that right? Where?
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1
right?
1
2
A. Right.
2
3
Q. Did you meet David Gonzalez at some point?
3
4
A. Yes, I did.
4
5
Q. Mr. Gonzalez, to your understanding, is one of
5
6
the principals of the Fury Group; is that right?
6
7
A. Right.
7
a
Q. When the concept was explained to you of what
8
9
was intended to occur at this Fury location, did you go
9
10
visit the premises?
10
11
A. Yes.
11
12
Q. Approximately when did you do that?
12
13
A. The first day that he called me.
13
14
Q. And that was what? The end of March you said?
14
15
A. Correct.
15
16
Q. When you visited the premises that later would
16
17
become Fury, what were you looking for for your
17
16
purposes? 1
16
19
A. I was looking for a family, someone that I can !
19
20
grow with, thought the concept was very nice and was
20
21
looking forward to making it into multiple locations.
21
22
Q. Now, when you went to look at the premises, f
22
23
did you go inside? i
23
24
A. Yes, correct.
24
25
Q. What did you look for in terms of the physical
25
35 (Pages 763 to 766)
Page 765
kitchen, where on this diagram does it constitute the
kitchen area?
A. I would assume this area.
Q. I don't want you to assume. You have been
there lots of times, haven't you?
A. No, I'm assuming — how this looks is a little
confusing. I don't know how to say, but yes, this is
the kitchen right here.
Q. Now, was there a dance floor at the premises
at the time when you walked in for the first time
A. Yes.
Q. And where roughly was that?
A. Where it states in the diagram, where it says
no dance floor.
Q. Well, actually it says age or and or
something; do you see that?
A. Right, that is — yes.
Q. So where it says dance floor, that's where you
saw the dance floor at that time?
A. Correct.
Q. Since that time the dance floor has always
been roughly in that location?
A. Not roughly, it has been in that location,
yes.
Q. There is also an area down here that has the
Page 766
word "bar" in it. Was there a bar in there at the
time?
A. Correct, yes.
Q. Back to the right on this diagram starting
where you were pointing out where the kitchen is
located, did you change any walls as a result of your
review that you wanted to do?
A. No.
Q. What did you do to make this kitchen your own?
A. I did a thorough steam cleaning of it was the
first thing. Then we brought in people to kind of work
on the equipment. 1 thought that the equipment was very
sufficient. It just needed some tuning up as we say,
and then 1 basically took out all the old equipment that
was kind of under the level of non - usable and bought a
new line of three ovens with burners and a sushi setup
area.
Q. Where did you install the sushi setup area?
A. Well, we didn't actually install it We just
implemented it onto the line as we created it.
Q. Where did you implement it with creativity on
the line?
A. Right here.
Q. Now, you are pointing out in this diagram the
top right -hand corner; is that right? Where?
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1
premises for purposes of doing what you were going to be
! 1
2
doing for the Fury?
2
3
A. Well, I was looking for more obviously the
3
4
kitchen side. There was an amazing kitchen there. It
4
5
was dirty. I was very excited about the kitchen
5
6
project. Amazing kitchen to do amazing food out of for
6
7
very little renovation versus the front of the house.
7
8
Q. When you say the front of the house, what are
a
9
you talking about?
9
10
A. The dining room, bar, dance floor, anything
10
11
besides the kitchen, 1 would say.
11
12
Q. And did you understand at that time that this
12
13
physical location was going to be an eating and drinking
13
14
establishment?
14
15
A. Yes.
15
16
Q. When you walked in, you saw the bar that was
16
17
already there?
17
18
A. Yes.
18
19
Q. I'm going to show you what's been marked as
j 19
20
Exhibit 7 and ask you to take a look at the third page
j 20
21
of Exhibit 7, which reflects the floor plan; do you see
21
22
this? The chefs lounge; do you see that?
22
23
A. Yes, I do.
23
24
Q. When you saw the premises for the first titne
24
25
and you looked at it you said for purposes of the
25
35 (Pages 763 to 766)
Page 765
kitchen, where on this diagram does it constitute the
kitchen area?
A. I would assume this area.
Q. I don't want you to assume. You have been
there lots of times, haven't you?
A. No, I'm assuming — how this looks is a little
confusing. I don't know how to say, but yes, this is
the kitchen right here.
Q. Now, was there a dance floor at the premises
at the time when you walked in for the first time
A. Yes.
Q. And where roughly was that?
A. Where it states in the diagram, where it says
no dance floor.
Q. Well, actually it says age or and or
something; do you see that?
A. Right, that is — yes.
Q. So where it says dance floor, that's where you
saw the dance floor at that time?
A. Correct.
Q. Since that time the dance floor has always
been roughly in that location?
A. Not roughly, it has been in that location,
yes.
Q. There is also an area down here that has the
Page 766
word "bar" in it. Was there a bar in there at the
time?
A. Correct, yes.
Q. Back to the right on this diagram starting
where you were pointing out where the kitchen is
located, did you change any walls as a result of your
review that you wanted to do?
A. No.
Q. What did you do to make this kitchen your own?
A. I did a thorough steam cleaning of it was the
first thing. Then we brought in people to kind of work
on the equipment. 1 thought that the equipment was very
sufficient. It just needed some tuning up as we say,
and then 1 basically took out all the old equipment that
was kind of under the level of non - usable and bought a
new line of three ovens with burners and a sushi setup
area.
Q. Where did you install the sushi setup area?
A. Well, we didn't actually install it We just
implemented it onto the line as we created it.
Q. Where did you implement it with creativity on
the line?
A. Right here.
Q. Now, you are pointing out in this diagram the
top right -hand corner; is that right? Where?
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Page 769
of the building and the other side would be the east
side and MacArthur Boulevard side. Okay?
A. Okay.
Q. Is that accurate based on your recollection?
A. Absolutely.
Q. So when the freezer is, then, would be
roughly at the southeast corner, right?
A. Correct.
Q. And all of that area that you have described
and you have been looking at, that's your kitchen
preparation area?
A. Correct.
Q. How does that kitchen set up to allow you and
your sous chef and your helpers to do what you would do
in terms of preparation of food?
A. It's an absolutely beautiful kitchen, a dream
to work in. Whoever had designed it and set it up, it
was just a machine ready to take over with a little bit
of cleaning and tender loving care.
Q. When you first looked at the premises, you
said it was dirty, and you had to make some change outs
of equipment. Did you have to get the permission of the
owners of Fury to do that?
A. Yes.
Q. And was the permission that you obtained
Page 770
restrictive in any manner?
A. No.
Q. How would you describe what they allowed you
to do there?
A. Unbelievable.
Q. In what way?
A. Free will on creativity. They knew that I was
a professional and I knew what I was doing, yet at the
same time not spending frivolous money on things we
didn't need in the kitchen, and they allowed me to
basically buy a new line, a really beautiful kitchen
ready to clean and take over.
Q. Are you aware that the occupancy of this
restaurant is about 297?
A. Yes, 1 am.
Q. In your professional opinion, is the size and
the layout and all the aspects of this kitchen area
sufficient to be able to service —
A. Yes.
Q. — that number of people?
A. No question about that, yes.
Q. Is that one of the things you looked at when
you were doing this thing?
A. Absolutely.
Q. Now, from the time that you first looked at
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1
A. Right here (indicating).
1
2
Q. It's actually the circular area?
2
3
A. Correct, which is a wood burning oven, which
3
4
is where the sushi station was in front of that. I'm
4
5
assuming that is the wood burning oven.
5
6
Q. That's the only circular area with dark black
6
7
lines on this diagram; is that correct?
7
8
A. Correct.
8
9
Q. Now, did you also at some point purchase a
9
10
multi- burner stove, I think you said?
10
11
A. Yes.
11
12
Q. You told me 24 burners?
12
13
A. Yes, there were three different burners with
13
14
eight burners on top of it which is 24 altogether.
14
15
Q. Now, this particular kitchen area, does it
15
16
include refrigeration?
16
17
A. Yes.
17
18
Q. Does it include freezers?
i8
19
A. Yes.
19
20
Q. Where are all those freezers and
20
21
refrigerators?
21
22
A. There are actually three refrigerators. One
22
23
is a free - standing refrigerator, which is on the line.
23
24
This is what I call the line right here (indicating) by
24
25
the black circle all the way down, the free - standing
25
Page 7681
1
refrigerator right there. Then our walk -in is right
1 1
2
here where it shows the freezer.
2
3
Q. Before you move on from there, when you have
1 3
4
been referencing the line and you are pointing out on
4
5
your ringer from the round black area up towards the top
j 5
6
of the page, if you win?
6
7
A. Correct.
7
8
Q. And that being the line?
8
9
A. Correct.
9
10
Q. And that's where the —
10
11
A. That's where some refrigeration drawers are.
11
12
We call it our mis en place which is a French word for
12
13
setup, you know, setting up for dinner and lunch
13
14
basically.
14
15
Q. And then there is freezers over on the top?
15
16
A. The freezer is actually inside the wank -in,
16
17
which is --
17
18
Q. I want you to assume for purposes of this
18
19
diagram that the far left of the page is the north end
19
20
ofbuilding.
20
21
A. Okay.
21
22
Q. The far right of the page is the south end of
22
23
the building.
23
24
A. Okay.
24
25
Q. The page closest to you would be the west side
25
3b keayt95 /t3/ l.0 I /UI
Page 769
of the building and the other side would be the east
side and MacArthur Boulevard side. Okay?
A. Okay.
Q. Is that accurate based on your recollection?
A. Absolutely.
Q. So when the freezer is, then, would be
roughly at the southeast corner, right?
A. Correct.
Q. And all of that area that you have described
and you have been looking at, that's your kitchen
preparation area?
A. Correct.
Q. How does that kitchen set up to allow you and
your sous chef and your helpers to do what you would do
in terms of preparation of food?
A. It's an absolutely beautiful kitchen, a dream
to work in. Whoever had designed it and set it up, it
was just a machine ready to take over with a little bit
of cleaning and tender loving care.
Q. When you first looked at the premises, you
said it was dirty, and you had to make some change outs
of equipment. Did you have to get the permission of the
owners of Fury to do that?
A. Yes.
Q. And was the permission that you obtained
Page 770
restrictive in any manner?
A. No.
Q. How would you describe what they allowed you
to do there?
A. Unbelievable.
Q. In what way?
A. Free will on creativity. They knew that I was
a professional and I knew what I was doing, yet at the
same time not spending frivolous money on things we
didn't need in the kitchen, and they allowed me to
basically buy a new line, a really beautiful kitchen
ready to clean and take over.
Q. Are you aware that the occupancy of this
restaurant is about 297?
A. Yes, 1 am.
Q. In your professional opinion, is the size and
the layout and all the aspects of this kitchen area
sufficient to be able to service —
A. Yes.
Q. — that number of people?
A. No question about that, yes.
Q. Is that one of the things you looked at when
you were doing this thing?
A. Absolutely.
Q. Now, from the time that you first looked at
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Page 772
1
Page 771
1
1
the physical space at the end of March until the time
1
2
that this place opened up, which is about when?
2
3
A. June 26 -ish.
3
4
Q. During that time what did you do to get
4
5
prepared for the menu and food service, et cetera?
5
6
A. It was a hundred -hour week. One of the owners
6
7
allowed me to bring on a sous chef prior to the opening,
7
8
so he could help me because I was alone from cleaning to.
8
9
buying new equipment to buying boxes to organizing
9
10
China, silverware. It was a lot of work.
10
11
Q. Tell us about the food service and capability
11
12
in terms of China and silverware. Are we talking paper
12
13
plates and plastic utensils?
13
14
A. No, no, no. They wanted everything to be top
14
15
notch. I have an invoice still at my house for $16,000
15
16
worth of plates. We bought another $4,000 worth of
16
17
silverware. We were smart with the location. The other
17
IS
past owner had left some things, like kitchen trays and
18
19
stuff like that, and we gave them a nice wash and reused
19
20
them. What we couldn't reuse we bought new, spoons,
20
21
spatulas, mitts.
21
22
Q. During the course of your duties as the
22
23
executive chef there at Fury in general, what was your
23
24
staff like? You had the sous chef and yourself and who
24
25
else, if anybody, helped you prepare certain foods?
25
Page 772
1
A. We had a sushi chef also, and we had probably
1
2
at one point about 11, 12 guys in the kitchen, you
2
3
know, rotating for lunches and dinners.
3
4
Q. Were you involved in any aspect of marketing
4
5
and advertising the food service aspect of Fury?
5
6
A. Yes.
6
7
Q. Tell us about that.
7
e
A. I was involved in it in the sense of 1 worked
8
9
close in a relationship with Mona Shaw who was basically
9
10
hired by David and Brian to promote and P.R. the
10
11
restaurant side and myself.
11
12
Q. We are going to go into that in just a
12
13
minute. Before 1 forget, we have identified both an
13
14
actual hard copy of the Fury menu, which is a hard
14
15
original, if you will, of what we have identified as
15
16
Exhibit 22. And also we have got some copies of various .I
16
17
menus in Exhibit 21 First of all, I have placed in !
17
18
front of you the hard copy. Do you see that, sir? !
18
19
A. Yes.
19
20
Q. Can you tell us about this hard copy, what i
20
21
this represents and what your involvement in it was?
21
22
A. My involvement was from the beginning. 1
22
23
created it from scratch from every single lettering to
23
24
the font to the item to the layout to the execution.
24
25
Q. Now, tell us about —just pick out a couple
25
.7/ iYdyCS //1 LU / /4f
Page 773
good examples in terms of the type of food you developed
that you have identified here in this menu and give us
an idea of what we are talking about.
A. Basically one of our key things that people
really loved a lot as you sce on the first page is
premier courier service. We had a lot of groups of
people coming in, and I've been in the industry enough
to know where sometimes people don't want to deal with
ordering. They just want to come in and have sushi, and
you kind of bring this platter out, so I thought it was
a good idea to create platters in silver, gold and
platinum where someone wouldn't have to order just one
roll. They can order this platter and four people can
share it, and it looks beautiful and really nice
presentation on silver and gold and platinum platters
with all kinds of goodies on it.
Q. Looking at the other couple of pages there, I
think there are a couple of examples of some of the food
item that you developed and what they are?
A. Yes, I developed uno kasei (phonetic) which is
a Japanese word. A lot of sushi restaurants have uno
kasei me, trust the chef to basically get restrictions
on those allergy restrictions and things like that. You
would kind of do what you felt was creative that day,
and you charge $100 for it, and we took items like, you
Page 774
know, and named them very creative things like Ming
dynasty, things like that. 1 don't know. There was a
Ming dynasty.
Q. At some point there was.
A. At some point I thought it was a catchy name,
and people loved to do it It was actually one of our
top sellers.
Q. Take a look at Exhibit 22. 1 had you took at
it before. Have you looked at all the pages in Exhibit
22?
A. Yes.
Q. And do they fairly and accurately represent
the various menus that have been in use —
A. Yes.
Q. — at Fury during the time it's been open?
A. Yes.
Q. And are those all menus that you designed,
implemented and otherwise promoted?
A. Yes.
Q. Is it an accurate and fair representation of
the same?
A. Yes.
MR. JAMIESON: I would like to move 22 into
evidence.
MS. AILIN: No objection.
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Page 776
1
Page 775
1
1
THE HEARING OFFICER: So moved, so done.
1
2
MS. AILIN: We actually had stipulated to it, but
2
3
that's okay.
3
4
(Fury's Exhibit 22 was
4
5
admitted into evidence and is
5
6
bound under separate cover.)
6
7
BY MR. JAMIESON;
7
8
Q. Let's take a look at Exhibit 23. Do you have
e
9
Exhibit 23 in front of you?
9
10
A. Yes.
10
11
Q. Tell us what Exhibit 23 is. !
11
12
A. Exhibit 23 is a photocopy of an actual
12
13
postcard to — postcard size of a flyer promoting our
13
14
luncheons through our P.R. rep. I
14
15
Q. When you reference P.R. rep, who is that?
15
16
A. Mona Shaw.
16
17
Q. Now, I have with me an original postcard. Is
17
18
what I'm showing you an original of that postcard? i
18
19
A. Correct 1
19
20
Q. Now, it references here the hours for lunch
20
21
and the hours for dinner. Are these hours accurate?
21
22
A. Yes.
22
23
Q. And by the way, were they accurate in the
23
24
menus before that on Exhibit 22?
24
25
A. Yes.
25
Page 776
1
Q. Now, with respect to this menage a trois
1
2
lunch, what does that mean?
2
3
A. It's a sexual wording for a —
3
4
Q. I know what that hs but what does it mean —
4
5
I don't know what that means — I have no clue
5
6
whatsoever, but what does it mean in the concept of the
6
7
food service?
7
8
A. A euphoric experience at lunch.
8
9
Q. Does that mean that was a three - course meal?
9
10
A. Correct.
10
11
MR. JAMIESON: Move 23 into evidence.
11
12
MS. AMIN: No objection. �
12
13
THE HEARING OFFICER: Every -- it appears that you
13
14
have a different 23 than I do, so maybe you couldjust
14
15
make a copy or something. I don't have that page for
15
16
some reason.
16
17
MR. JAMIESON: Sure, why don't wejust give you
17
18
this right row, so we don't have to worry about Exhibit
18
19
23?
19
20
(Fury's Exhibit 23 was
20
21
admitted into evidence and is
21
22
bound under separate cover.)
22
23
BY MR. JAMIESON:
23
24
Q. Now I'd like you to take a look at what is
24
25
indicated to be Exhibit 24. Can you tell what is
25
38 (Pages 775 to 778)
Page 777
Identified in Exhibit 24? What is this?
A. It's an Orange Coast Magazine March 2008
write-up.
Q. And how did that write -up occur? One second.
Is that something that —
THE HEARING OFFICER: Mine just got reversed it
appears because my 23 was — is this your 24?
MR. JAMIESON: Yes, it is.
THE HEARING OFFICER: No problem It's
straightened out.
BY MR JAMIESON:
Q. Tell us about Exhibit 24. How did that come
to be?
A. How that came to be is our P.R. rep,
Mona Shaw, got us a lot of ink and press based on our
relationship together and my background.
Q. You have mentioned Mona Shaw's name several
times. To your knowledge, who is Mona Shaw and when did
you first meet her?
A. I met Mona Shaw about two months, a month and
a half after we opened in August, and she was working
for a company called Wondermarks P.R., very big P.R.
firm, and we were introduced by David and Brian.
Q. What was your understanding as to whys
Mona Shaw was brought in at that time
Page 778
A. To my understanding at that time when
Mona Shaw was brought in to—
MS. AILIN: Objection; no personal knowledge.
MR JAMIESON: 171 withdraw and restate.
Q. What were you told as to why Mona Shaw was
meeting with you?
MS. AILIN: Objection; calls for hearsay.
MR JAMIESON: Youil get an overruled on that. It
goes to his state of rind.
THE HEARING OFFICER: Overruled.
THE WITNESS: Can you repeal the question? Sony.
BY MR. JAMIESON:
Q. What were you told as to why Mona Shaw was
meeting with you?
A. I was told that Mona Shaw was meeting with me
to basically promote me and my background, Fury, the
restaurant, how great the food is.
Q. And during the courseof your working with
Mona Shaw, what types of activities did you and
Mona Shaw undertake to promote the food service at Fury?.
A. Numerous things. We had a media dinner with
25 people, sit down, and it was a coursed out meal with
consultants and the media. We did a Jaguar event where
they sponsored a new vehicle that was not out in the
country yet, and Fury sponsored that event with Mona
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Page 781
A. Yes.
Q. How was this program put together —why was
It used and what was it used for?
MS. AILPI: Objection; no foundation, no personal
knowledge. He is not the one who put it together. He
worked with her to put it together. That's what he just
stated.
THE HEARING OFFICER: So what was the question that
you asked?
MR. JAMIESON; What is the question? The question
is did you work with Mona Shaw to put this together and
is this, in fact, what you put together and tell us what
was the purpose of it and how was it used, what does
this mean?
THE HEARING OFFICER: Overruled.
THE WITNESS: Yes, we put it together. It was used
directly to promote the executive chef and our food and
our lovely menu.
BY MR. JAMIESON:
Q. And is this an accurate copy of that which It
purports to be?
A. Yes.
Q. Every page?
A. Yes.
Q. Now, with respect to some of the item—the
Page 782
hearing officer can take a look at this at his leisure,
but for instance, if 1 can just direct your attention to
page 3, goals and objectives; do you see that?
A. Yes.
Q. Can you tell us is that an accurate statement
of the goals and objectives of Fury as put together by
you and Mona?
A. Yes.
Q. The bullet items here are all accurate?
A. Yes.
Q. Normally I would have you read this for the
record, but I will allow it to just remain for purposes
of brevity, and if it's okay with the hearing officer,
to read it in unless the hearing officer would like more
information on that.
THE HEARING OFFICER: No, this will be adequate.
BY MR. JAMIESON:
Q. Now, the next page is another copy of that
magic faux card; is that right?
A. Yes, the backside of it, yes.
Q. And the next page after that is the front part
of that?
A. Correct.
Q. The restaurant overview that's stated here, it
reflects down at the bottom Mona Shaw. That's the
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Page 7791
1
with appetizers at the restaurant. We had the nonprofit
1
2
breast cancer and an AIDS function dinner at Fury to
2
3
promote the restaurant also.
3
4
Q. And you mentioned that during the course of
4
5
that time — by the way, what was the time period that
5
6
Mona was working with you to do this surf ?.
6
7
A. Until now, from August til now.
7
8
Q. During the course of that time you mentioned
a
9
that she was responsible for getting you a lot of
9
10
print. What does that mean?
10
11
A. I've been in 13 magazines in a year. That's
11
12
what I mean by a little paragraph here, a little
12
13
paragraph there from Orange Coast to Riviera to Wear
13
14
magazine, just various publications.
14
15
Q. As an example, we are looking at Exhibit 24,
15
16
is that one of the examples of the type of print that
16
17
Mona and you would get out in the marketplace about
17
18
Fury's food service?
is
19
A. Yes.
19
20
MR, JAMIESON: Move Exhibit 24 into evidence.
20
21
MS. AILIN: No objection.
21
22
THE HEARING OFFICER: So moved.
22
23
(Fury's Exhibit 24 was
23
24
admitted into evidence and is
24
25
bound under separate cover.)
25
Page 780
1
BY MR. JAMIESON:
1
2
Q. Chef Sevan, I would like to now direct your
2
3
attention since we are talking about the promotional
3
4
work that you and Mona were doing together to Exhibit
4
5
27. Exhibit 27 is identified as public relations
5
6
program overview for Fury Rok and Rol Sushi Lounge?
j 6
7
A. Yes.
7
8
Q. You see it says "Presented by Most Public
8
9
Relations January 16, 2008 "; is that correct?
9
10
A. Correct.
10
11
Q. Is that the group that Mona Shaw was with at
11
12
the time?
12
13
A. That's the group Mona Shaw is with at the
13
14
present time.
14
15
Q. But Mona Shaw had started with that way back
15
16
in August of'07?
j 16
17
A. Yeah, after the new year. Moxi is her own
17
18
firm versus the firm she is with.
18
19
Q. Now, I had you before you walked in here today
i 19
20
take a look at each of the pages in Exhibit 27 to
20
21
refresh your recollection; is that correct?
1 21
22
A. Correct.
22
23
Q. And did it, in fact, refresh your recollection
23
24
as to how this program overview was put together and
24
25
what it was used for?
25
37 (rag C:7 / /7 t.V /06/
Page 781
A. Yes.
Q. How was this program put together —why was
It used and what was it used for?
MS. AILPI: Objection; no foundation, no personal
knowledge. He is not the one who put it together. He
worked with her to put it together. That's what he just
stated.
THE HEARING OFFICER: So what was the question that
you asked?
MR. JAMIESON; What is the question? The question
is did you work with Mona Shaw to put this together and
is this, in fact, what you put together and tell us what
was the purpose of it and how was it used, what does
this mean?
THE HEARING OFFICER: Overruled.
THE WITNESS: Yes, we put it together. It was used
directly to promote the executive chef and our food and
our lovely menu.
BY MR. JAMIESON:
Q. And is this an accurate copy of that which It
purports to be?
A. Yes.
Q. Every page?
A. Yes.
Q. Now, with respect to some of the item—the
Page 782
hearing officer can take a look at this at his leisure,
but for instance, if 1 can just direct your attention to
page 3, goals and objectives; do you see that?
A. Yes.
Q. Can you tell us is that an accurate statement
of the goals and objectives of Fury as put together by
you and Mona?
A. Yes.
Q. The bullet items here are all accurate?
A. Yes.
Q. Normally I would have you read this for the
record, but I will allow it to just remain for purposes
of brevity, and if it's okay with the hearing officer,
to read it in unless the hearing officer would like more
information on that.
THE HEARING OFFICER: No, this will be adequate.
BY MR. JAMIESON:
Q. Now, the next page is another copy of that
magic faux card; is that right?
A. Yes, the backside of it, yes.
Q. And the next page after that is the front part
of that?
A. Correct.
Q. The restaurant overview that's stated here, it
reflects down at the bottom Mona Shaw. That's the
Precise Reporting Service
714- 647 -9099
,01
FURY REVOCATION HEARING - 4/22/2008
Page 783'
1
Mona Shaw you are talking about?
1
2
A. Correct.
2
3
Q. And this Is also an accurate depiction of what
3
4
you and Mona put together?
4
5
A. Yes.
5
6
Q. Your name appears throughout this program
6
7
overview quite a bit. Are you aware of that?
7
8
A. Yes.
8
9
Q. Would you describe it as a masterpiece?
9
10
A. She did a great job of that without me doing a
10
11
lot.
11
12
Q. By the way, you were trusting Mona Shaw with
12
13
describing your background, what you were doing and
13
14
things. What was your understanding of what Mona Shaw's
14
1s
background was?
15
16
A. I know a lot of people In the industry, looked
16
17
into her background. I knew that she did a fair amount
17
18
of restaurants. 1 heard she is really concerned about
18
19
making chefs and restaurants shine.
19
20
Q. Now, the balance of the sheets ofpaper in
20
21
Exhibit 27, tell us about those. Kind of go through it
21
22
and give us a brief overview of what it is.
22
23
A. It is a publication called Great Taste
23
24
Magazine. It's a free publication and gets ¢-mailed out
24
25
to all chefs that are on its e-mail list, and it kind
25
sv tra9c6 t0.3 l.v tool
Page 785
-- excuse me -- the public relations program overview
and the page with the heading Rok and Rol Sushi Lounge
on grounds of relevance, hearsay, Evidence Code section
352.
THE HEARING OFFICER: Overruled. Admitted.
MR. JAMESON: Thank you.
(Furys Exhibit 27 was
admitted into evidence and is
bound under separate cover.)
BY MR. JAMIESON;
Q. Let me direct your attention to Exhibit 28.
What is Exhibit 28?
A. It's a publication called Dining Out Magazine.
Q. And what is Dining Out Magazine, to your
knowledge?
A. To my knowledge, Dining Out Magazine is a
publication sent to Orange County residents telling
them about hotels and such things.
Q. See up here where it says falitwinter 2007.
To your knowledge, was this distributed in the
fall/winter of 2007?
A. Yes, it was.
Q. And how does this relate to Fury?
A. We are in it.
Q. Show us where in this document that it
Page 786
reflects Fury.
A. Two pages in. It starts with the article —
sorry — one page in it starts with a brief blurb about
us, and then it goes into the second page about our food
and our establishment, and it goes to the third page
with a sample of our menu and photographs taken by our
photographer and our food.
Q. Do you know, if that is an advertisement or is
this something they just decided to run because of the
marketing and promotion efforts of Mona Shaw?
A. It's definitely directed to our marketing with
Mona Shaw. There are a lot of restaurants in there.
Q. Now, the food items that are depicted on this
third page of Exhibit 28, actually three pictures or
photographs. Are those food creations that you are
responsible for?
A. Yes.
Q. Tell us briefly what those food creations are.
A. The first one to the top left of the photo
shot of the restaurant is called our mid i maid roll,
which is a deep fried sushi roll that has some spices on
each side of it, and it's covered in our trio sauce,
which is mussel, chili ofl and eel sauce with a leaven
wedge for garnish.
Q. A tittle bit ago you talked about a deep
Precise Reporting Service
714 - 647 -9099
Page 784
1
of, as you see, talks about little tidbits and what's
1
2
going on in the industry and —
2
3
Q. How does it relate to Fury?
3
4
A. We are written here.
4
5
Q. There is a sheet of paper at the very back of
5
6
Exhibit 27 that has got a good - looking young man. Who
6
7
is that?
7
B
A. That's me.
8
9
Q. And what was the purpose of that particular
9
10
document?
10
11
A. That is actually for our website.
11
12
Q. Does that picture — does that picture appear
12
13
on the website for Fury?
13
14
A. Yes.
14
15
Q. The food that is depicted in front of you and
15
16
your chefs outfli, you did that?
16
17
A. Yes.
17
18
Q. What is that?
18
19
A. It's my sous chef.
19
20
Q. The description that's made about you and the
j 20
21
vibe and the atmosphere, is that all correct?
21
22
A. Yes.
j 22
23
MR. JAMIESON: I would like to move Exhibit 27 into
23
24
evidence.
24
25
MS. AILIN: Well, l object to the program relations
25
sv tra9c6 t0.3 l.v tool
Page 785
-- excuse me -- the public relations program overview
and the page with the heading Rok and Rol Sushi Lounge
on grounds of relevance, hearsay, Evidence Code section
352.
THE HEARING OFFICER: Overruled. Admitted.
MR. JAMESON: Thank you.
(Furys Exhibit 27 was
admitted into evidence and is
bound under separate cover.)
BY MR. JAMIESON;
Q. Let me direct your attention to Exhibit 28.
What is Exhibit 28?
A. It's a publication called Dining Out Magazine.
Q. And what is Dining Out Magazine, to your
knowledge?
A. To my knowledge, Dining Out Magazine is a
publication sent to Orange County residents telling
them about hotels and such things.
Q. See up here where it says falitwinter 2007.
To your knowledge, was this distributed in the
fall/winter of 2007?
A. Yes, it was.
Q. And how does this relate to Fury?
A. We are in it.
Q. Show us where in this document that it
Page 786
reflects Fury.
A. Two pages in. It starts with the article —
sorry — one page in it starts with a brief blurb about
us, and then it goes into the second page about our food
and our establishment, and it goes to the third page
with a sample of our menu and photographs taken by our
photographer and our food.
Q. Do you know, if that is an advertisement or is
this something they just decided to run because of the
marketing and promotion efforts of Mona Shaw?
A. It's definitely directed to our marketing with
Mona Shaw. There are a lot of restaurants in there.
Q. Now, the food items that are depicted on this
third page of Exhibit 28, actually three pictures or
photographs. Are those food creations that you are
responsible for?
A. Yes.
Q. Tell us briefly what those food creations are.
A. The first one to the top left of the photo
shot of the restaurant is called our mid i maid roll,
which is a deep fried sushi roll that has some spices on
each side of it, and it's covered in our trio sauce,
which is mussel, chili ofl and eel sauce with a leaven
wedge for garnish.
Q. A tittle bit ago you talked about a deep
Precise Reporting Service
714 - 647 -9099
FURY REVOCATION HEARING - 4/22/2008
41 (Pages 787 to 790)
Page 769
available up until the time that Fury closed since you
weren't there all the time?
A. Well, I was there for the first, you know,
three months, 90 days, so actually I was there, and
people listened to what I said and my sous chef. We ran
it properly.
Q. By the way, were you responsible for ordering
foods?
A. Yes.
Q. Were you responsible for making sure you had
enough food to be able to do these creations during all
the time that Fury was open?
A. Yes.
Q. And the last page of Exhibit 28, it has sample
menu selections. Are they accurate samples?
A. Yes.
Q. And with respect to these food creations
depicted on this particular page, are these all of
the selections you are responsible for?
A. Yes.
MR. JAMIESON: Now I'd like to move 28 in.
MS. AILIN: No objection.
THE HEARING OFFICER: So admitted.
(Fury's Exhibit 28 was
admitted into evidence and is
Page 790
bound under separate cover.)
BY MR. JAMIESON:
Q. Now, Chef Sevan, lastly I would like you to
look at Exhibit 25. There are a number of pages in
Exhibit 25, so prior to coming in here today I had you
take a look at every one of these sheets of paper in
Exhibit 25?
A. Yes.
Q. And have you looked at all of these sheets of
paper?
A. Yes.
Q. Are you familiar with what is depicted there?
A. Yes.
Q. For those photographs that depict what appears
to be the interior of a premises as well as the exterior
of a premises, are those, in fact, Fury's?
A. Yes.
Q. Is that true for every one of the pages that
appear to depict the structure?
A. Yes.
Q. Now, further back we get to — further back in
Exhibit 25 we get to a sheet of paper that says Fury in
the middle. It says lunch at the top and dinner at the
bottom; do you see that?
A. Yes.
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714 - 647 -9099
Ok
Page 7871
1
fryer. When you said deep fryer you put into your
1 1
2
kitchen, I was thinking it was for French fries or
2
3
cheesesteaks or something?
3
4
A. Right
4
5
Q. Is the deep fryer for this type of thing?
s
6
A. Yes, we drop the actual roll with batter in
6
7
the deep fryer and put it out cut up on a plate.
7
8
Q. Tell us about it.
8
9
A. That is our surf and turf. It's a basically
9
10
nine -ounce piece of filet mignon served with a soshi
10
11
mold (phonetic) glaze, garlic, five spices, asparagus
11
12
and lobster tail with lobster sauce.
12
13
Q. How about the other item on the right?
13
14
A. That is called our cucumber lollipop roll.
14
15
Q. Give us a brief description.
15
16
A. That's basically a hothouse cucumber that has
16
17
been cored and used as basically nor! for crab instead
17
18
of the and and served with toothpicks and served with a
18
19
spicy sricha atoll.
19
20
Q. Do you have any idea how to spell it?
20
21
A. S- r- i- c -h -a, Sricha. Mail is a -i -o-1 -i.
21
22
Q. Thank you.
22
23
Now, the picture at the very top of this
23
24
particular page, what does that depict?
24
25
A. Our restaurant.
25
_ - - -T' Page 788
1
Q. Does it depict tables that were set for meals?
1
2
A. Yes.
2
3
Q. By the way, during the time that Fury was
3
4
open, what Type of meal service was available?
4
5
A. All kinds of events. We did our —
5
6
Q. I'm talking about time -wise. When it's open
6
7
for lunch, is it full service menu?
7
8
A. There is a lunch menu.
8
9
Q. And does it have the type of items that you
9
10
have been describing?
10
11
A. Yes.
11
12
Q. And when it's open for dinner and all the way
12
13
up until it closes is the food available?
13
14
A. Yes.
14
1s
Q. Tell us about the food that's available
15
16
particularly when it gets later at night?
16
17
A. Well, we have a full menu late at night I am
17
18
married and have a baby, so I kind of don't stick around
18
19
until 12:30 or anything like that all the time, but I
19
20
have — my sous chef comes in a little later where 1
20
21
come in a little earlier, and we split the shift as you
21
22
say it. He stays until about one o'clock in the morning
22
23
and takes care of our menu.
23
24
Q. And what efforts did you make, if any, to make
24
25
sure that the full menu or full food service was
25
41 (Pages 787 to 790)
Page 769
available up until the time that Fury closed since you
weren't there all the time?
A. Well, I was there for the first, you know,
three months, 90 days, so actually I was there, and
people listened to what I said and my sous chef. We ran
it properly.
Q. By the way, were you responsible for ordering
foods?
A. Yes.
Q. Were you responsible for making sure you had
enough food to be able to do these creations during all
the time that Fury was open?
A. Yes.
Q. And the last page of Exhibit 28, it has sample
menu selections. Are they accurate samples?
A. Yes.
Q. And with respect to these food creations
depicted on this particular page, are these all of
the selections you are responsible for?
A. Yes.
MR. JAMIESON: Now I'd like to move 28 in.
MS. AILIN: No objection.
THE HEARING OFFICER: So admitted.
(Fury's Exhibit 28 was
admitted into evidence and is
Page 790
bound under separate cover.)
BY MR. JAMIESON:
Q. Now, Chef Sevan, lastly I would like you to
look at Exhibit 25. There are a number of pages in
Exhibit 25, so prior to coming in here today I had you
take a look at every one of these sheets of paper in
Exhibit 25?
A. Yes.
Q. And have you looked at all of these sheets of
paper?
A. Yes.
Q. Are you familiar with what is depicted there?
A. Yes.
Q. For those photographs that depict what appears
to be the interior of a premises as well as the exterior
of a premises, are those, in fact, Fury's?
A. Yes.
Q. Is that true for every one of the pages that
appear to depict the structure?
A. Yes.
Q. Now, further back we get to — further back in
Exhibit 25 we get to a sheet of paper that says Fury in
the middle. It says lunch at the top and dinner at the
bottom; do you see that?
A. Yes.
Precise Reporting Service
714 - 647 -9099
Ok
FURY REVOCATION HEARING - 4/22/2008
42 (Pages 791 to 794)
Page 793
A. Personal portfolio and restaurant for Fury,
portfolio. A master book it's called.
Q. What is a master book?
A. Amster book is something that basically
every — basically what it Is is every single menu item
has been taken a photograph of with an ingredients list
and directions, so that when I'm not there, it can be
executed the way it was written in English.
Q. Now, when you talk about a food ingredients
list —
A. Yeah, where is it.
Q. When you talk about a food ingredients list,
is that something that you see in — look at it a
minute. Is that something that we see within Exhibit
22?
A. Yes.
Q. And it actually is a food ingredients list.
Actually starts on — looks like approximately 10
pages in, and it says here "Premier Fury Service";
is that right?
A. Correct.
Q. And that goes on for?
A. Three pages.
Q. Three pages, and then there is additional
material here within Exhibit 22 that says "Summer menu,"
Page 794
and it talks about Fury glossary; is that right?
A. Correct.
Q. And that goes on for two mare pages; is that
right?
A. Correct.
Q. And what was the purpose of the Fury glossary
in these couple pages?
A. We wanted to inform our staff about our food
ingredients and the products that we use in our kitchen.
That's why a glossary was provided. I also provided
suggestions for children with respect to when children
come in, and I wanted to — basically was relying on the
servers to translate the food directly for the customer.
Q. So if I understand you correctly, what you are
saying is is that this Fury glossary and this material
is so that not only are the food preparers that work
under your direction able to make the food like you want
them to and the way you want them presented, et cetera,
but also all the food servers understand what it is and
can explain it to the patrons; is all that true?
A. Yes.
Q. Now, directing your attention back to Exhibit
25, the next few pages seem to depict plates of
different types of food on a stainless steel line of
some sort with some type of food item that can be
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714- 647 -9099
3'aa
Page 7911
1
Q. And that is 19 pages from the back. Can you !
1
2
just describe what that paper is?
2
3
A. That is a 944 magazine lunch and dinner
1 3
4
restaurant ad.
4
5
Q. Do you know approximately when that was
5
6
appearing in the 944 magazine?
j 6
7
A. '07.
j 7
8
Q. And were a similar menu or menu items also
e
9
available in '08 as well?
9
10
A. Yes.
10
11
Q. Now what I'd like you to do is starting from
11
12
there and going onto the next -- well, let's not do
12
13
that Starting here and going on to the next 10 pages,
13
14
just tell me whether or not those creations are your
14
15
creations.
15
16
A. Yes.
16
17
Q. When I say your creations, what does that
17
18
mean? What is your responsibility with these creations?
18
19
A. It's all my responsibility. I do them.
19
20
Q. You designed them?
20
21
A. Correct
I 21
22
Q. You designed the garnish?
22
23
A. Everything.
23
24
Q. You did design the way you cooked them and
24
25
presented them?
25
- -- -Page 792
1
A. The way that looks now in the photograph, yea
1
2
Q. Would that be true for all of these 10
2
3
photographs?
3
4
A. Yes.
4
5
Q. Are these the way the food items or a good
5
6
depiction, good sample, if you will, of the way the food
6
7
items were served to the patrons of Fury since late June
7
8
or July of that year?
8
9
A. Yes.
9
10
Q. By the way, when were these photographs taken?
10
11
A. We have been taking photographs from day one.
11
12
We shot some photographs even three weeks ago of food.
12
13
Q. These particular photographs that we are
! 13
14
looking at here, these 10 pages of Exhibit 25, do you
? 14
15
know who took the photographs?
is
16
A. Yea
16
17
Q. Who was that?
17
18
A. His name is Eric.
18
19
Q. What is your knowledge as to Eric Lamph".
19
20
A. Eric Lamph, L- a- m-p -h, is a top photographer
20
21
and designer in Orange County.
21
22
Q. Who arranged that, to take these photographs
22
23
photographs?
23
24
A. I did.
24
25
Q. For what purpose?
25
42 (Pages 791 to 794)
Page 793
A. Personal portfolio and restaurant for Fury,
portfolio. A master book it's called.
Q. What is a master book?
A. Amster book is something that basically
every — basically what it Is is every single menu item
has been taken a photograph of with an ingredients list
and directions, so that when I'm not there, it can be
executed the way it was written in English.
Q. Now, when you talk about a food ingredients
list —
A. Yeah, where is it.
Q. When you talk about a food ingredients list,
is that something that you see in — look at it a
minute. Is that something that we see within Exhibit
22?
A. Yes.
Q. And it actually is a food ingredients list.
Actually starts on — looks like approximately 10
pages in, and it says here "Premier Fury Service";
is that right?
A. Correct.
Q. And that goes on for?
A. Three pages.
Q. Three pages, and then there is additional
material here within Exhibit 22 that says "Summer menu,"
Page 794
and it talks about Fury glossary; is that right?
A. Correct.
Q. And that goes on for two mare pages; is that
right?
A. Correct.
Q. And what was the purpose of the Fury glossary
in these couple pages?
A. We wanted to inform our staff about our food
ingredients and the products that we use in our kitchen.
That's why a glossary was provided. I also provided
suggestions for children with respect to when children
come in, and I wanted to — basically was relying on the
servers to translate the food directly for the customer.
Q. So if I understand you correctly, what you are
saying is is that this Fury glossary and this material
is so that not only are the food preparers that work
under your direction able to make the food like you want
them to and the way you want them presented, et cetera,
but also all the food servers understand what it is and
can explain it to the patrons; is all that true?
A. Yes.
Q. Now, directing your attention back to Exhibit
25, the next few pages seem to depict plates of
different types of food on a stainless steel line of
some sort with some type of food item that can be
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Page 797
CROSS - EXAMINATION
BY MS. AB.IN:
Q. Let's go back to Exhibit 22, and I want to
explore this in a little more detail. Now, the first
page of Exhibit 22 has a handwritten number in the lower
right -hand corner that says 259; is that right?
A. Yes.
Q. And in the middle of the page in the margin on
the right -hand side it says "Full menu," correct?
A. Yes.
Q. Where does the full menu end in Exhibit 22?
What's the last page of the full menu in this
exhibit?
A. The last page of the menu in this exhibit —
me full menu is not in here.
Q. The full menu is not in here?
A. No, this isjust a copy of the first two pages
which is the sushi side of our menu.
Q. Just the sushi side of the menu?
A. To answer your question, 260 and 261 would be
the end of this book, but that Is not the full menu.
Q. Do you know whose handwriting that is where it
says "Full menu "?
A. I don't know.
Q. Following page 262 there is a page that
Page 798
appears to be another menu card; is that correct?
A. Yes.
Q. And then following that page there is a page
with the No. 264 in the lower right -hand corner, and in
the margin of that page up near the top it says "Late
menu"; you see that?
A. Yes.
Q. How far does Exhibit 22, the late menu,
extend?
MR. JAMIESON: Let me state the objection that it's
vague and ambiguous because I think you will fund that
he didn't write where it says late menu in or where it
says full menu, and I don't think he agrees with that
depiction.
THE HEARING OFFICER: Let him testify as to what
she is asking him
MR. JAMIESON: I don't want to be vague and
ambiguous in terms of what she is referring to because I
think you will find that it is, in fact, vague because
of what is written in there, and he didn't have any hand
in what is written in there.
MS. AILIN: Okay. Fine.
MR. JAMIESON: You can do it. rm just letting you
know.
THE WITNESS: It's just repeated. Ifs not even —
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Page 795)
1
obtained; do you see that?
1
2
A. Yes.
1 2
3
Q. Describe for what us what we are looking at,
3
4
in particular this one where we see a couple of people
4
5
standing. Do you recognize anyone?
5
6
A. Yes.
6
7
Q. Who's that?
7
8
A. My sous chef in white, and that is my sushi
8
9
chef in black, and that's his assistant.
9
10
Q. The one with the hat?
10
11
A. Correct, yes.
11
12
Q. Now, this area that we are looking at here, is
12
13
that the line that you described when we looked at
13
14
Exhibit 7?
14
15
A. Yes.
15
16
Q. This is where all the foods are prepared?
16
17
A. Yes.
17
18
Q. At least it's the line where foods are
18
19
prepared?
19
20
A. Correct.
20
21
Q. And the balance of the pictures here with all
21
22
the various food items up until we get to the last two
22
23
pages, those are also foods that were created by you,
23
24
prepared by you and served to Fury customers throughout
24
25
your tenure?
! 25
Page 796;
1
A. Yes.
1
2
Q. The couple of pages, second page to the last,
2
3
do you see anybody you recognize there?
3
4
A. My sous chef assistant, Derrick, in black
j 4
5
Q. Anybody else?
5
6
A. Myself.
j 6
7
Q. You are in the white shirt?
7
8
A. Yes.
8
9
Q. What is it that you are doing, real briefly?
9
10
A. I am plating a scallop risotto dish.
10
11
Q. And then, finally, the last picture in Exhibit
11
12
25 is also your creation, food that you presented and
12
13
presented to Fury customers?
13
14
A. Yes.
14
15
MR. JAMIESON: Nothing further for 25. Move it
15
16
into evidence, please.
16
17
MS. AILIN: No objection.
17
18
THE HEARING OFFICER: Admitted.
18
19
MR. JAMIESON: Thank you.
19
20
(Fury's Exhibit 25 was
20
21
admitted into evidence and is
21
22
bound under separate cover.)
22
23
MR. JAMIESON: Nothing further for Chef Sevan.
23
24
24
25
25
43 (Pages 795 to 798)
Page 797
CROSS - EXAMINATION
BY MS. AB.IN:
Q. Let's go back to Exhibit 22, and I want to
explore this in a little more detail. Now, the first
page of Exhibit 22 has a handwritten number in the lower
right -hand corner that says 259; is that right?
A. Yes.
Q. And in the middle of the page in the margin on
the right -hand side it says "Full menu," correct?
A. Yes.
Q. Where does the full menu end in Exhibit 22?
What's the last page of the full menu in this
exhibit?
A. The last page of the menu in this exhibit —
me full menu is not in here.
Q. The full menu is not in here?
A. No, this isjust a copy of the first two pages
which is the sushi side of our menu.
Q. Just the sushi side of the menu?
A. To answer your question, 260 and 261 would be
the end of this book, but that Is not the full menu.
Q. Do you know whose handwriting that is where it
says "Full menu "?
A. I don't know.
Q. Following page 262 there is a page that
Page 798
appears to be another menu card; is that correct?
A. Yes.
Q. And then following that page there is a page
with the No. 264 in the lower right -hand corner, and in
the margin of that page up near the top it says "Late
menu"; you see that?
A. Yes.
Q. How far does Exhibit 22, the late menu,
extend?
MR. JAMIESON: Let me state the objection that it's
vague and ambiguous because I think you will fund that
he didn't write where it says late menu in or where it
says full menu, and I don't think he agrees with that
depiction.
THE HEARING OFFICER: Let him testify as to what
she is asking him
MR. JAMIESON: I don't want to be vague and
ambiguous in terms of what she is referring to because I
think you will find that it is, in fact, vague because
of what is written in there, and he didn't have any hand
in what is written in there.
MS. AILIN: Okay. Fine.
MR. JAMIESON: You can do it. rm just letting you
know.
THE WITNESS: It's just repeated. Ifs not even —
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Page 7991
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264 is repeated off of 260, and that s not our late
1
MR. JAMIESON: 1:00 p.m. or 1:00 a.m.?
2
menu. That's our menu.
2
THE WITNESS: 1:00 a.m., yes. It's a typo.
3
BY MS. AILIN:
3
MR. JAMIESON: I mean, that's -- it would make no
4
Q. Okay. Then let's put that aside and take a
4
sense.
5
look at a document that was marked as the City's Exhibit
5
BY MS. AILIN:
6
20. Is this a complete copy of the full menu? Please
6
Q. What hours is Fury open?
7
take a look at it and tell me whether that is a complete
7
A. We open at 5:00 Monday through Friday and
8
copy of the full menu.
8
lunch at 11:00 to 2:00 Monday through Friday — I'm
9
A. No. that is not a copy of the full menu.
9
sorry. Monday through Saturday we are open 5:00 to 1:00
10
Q. Would you please take a look at Exhibit 21 and
10
a.m. for dinner. Monday through Friday we are open
11
tell me whether this is a complete copy of the late
21
11:00 to 2:00 for lunch, a break in the middle, 5:00 —
12
menu?
12
If that makes sense — to 1:00 o'clock.
13
A. No.
13
Q. And what time -
14
Q. There is a late menu?
14
THE HEARING OFFICER Let's — let's start over so
15
A. Yes, there Is.
15
we may be sure what we have. Your hours are Monday to
16
Q. Is there a copy of the late menu in Exhibit 22
16
Saturday from 5:00 p.m. to 1:00 a.m. for your evening
17
of the smaller binder?
17
hours or night hours, and from Monday to Friday you are
18
A. No.
18
also open for lunch from when to when?
19
Q. Now, earlier Mr. Jamieson asked you if the
19
THE WITNESS: 11:00 to 2:00. It drags a little
20
times that meals are served on the menu are shown
20
bit It goes to 2:00 or 2:30, but --
21
correctly. I would like to ask you to look at the
21
BY MS. ARJN:
22
second page of Exhibit 22, the one that says 260 in
22
Q. And those are the meal hours, correct?
23
the bottom right -hand corner.
23
A. Correct.
24
THE HEARING OFFICER: This is their exhibit.
24
Q. And what time does — what time at night does
25
Please say "F" or "C" if we are going back and forth.
25
Fury close completely? It's open until 2:00 a.m.,
- -_` Page 800:
.__..T Page 802
1
MS. AIL N: We are looking at F 22.
1
right?
2
THE HEARING OFFICER: Okay.
2
A. To be honest, l don't know that 1 think I
3
BY MS. AILIN:
3
stayed until one to two o'clock in the morning, and it
4
Q. And at the bottom of the page that has the No.
4
was open, yes.
5
260 in the lower right -hand corner, it says "Fury
5
Q. So you don't normally stay until closing?
6
premiere service menu Is only available from 6:00 p.m.
6
A. Closing at two o'clock in the morning, no.
7
to 11:00 p.m."; do you see that there?
7
Q. So you believe Fury does close at two o'clock
8
A. Yes.
8
in morning?
9
Q. Is that accurate?
9
A. Between 1:30, 2:00. 1 have heard from the
10
A. No.
10
bartenders that that's last call.
11
Q. What should it say?
11
Q. So last call is between 1:30 and 2:00, but the
12
A. It should say until 1:00 a.m. Actually it
12
kitchen closes at 1:00 a.m.?
13
does, just not on this copy.
13
A. (Witness nodded head from side to side.)
14
Q. Let's take a look at Exhibit 23. This is the
14
MS. AILIN: For the record the witness is nodding
15
lunch card, correct?
15
his head.
16
A. Correct.
16
THE WITNESS: By the time we close, if there is an
17
Q. And you testified previously that the hours of
17
order coming in at 1:15, we'll of course take care of
1e
meal service at Fury are accurately stated on this card,
18
the client, but it takes about a half an hour to close
19
correct? That was your testimony?
19
the kitchen.
20
A. Yes.
2o
BY MS. AIL1N:
21
Q. And if you notice, there is a line that talks
21
Q. During the time that you been working at
22
about the hours. It says dinner Tuesday 5:00 p.m. to
1 22
Sushi, have you been executive chef anywhere else?
23
10:00 p.m.; Wednesday through Saturday 5:00 p.m. to 1:00
23
A. No.
24
p.m.; is that correct?
1 24
Q. Have you worked in any capacity anywhere else?
25
A. Yes.
', 25
A. Any capacity anywhere else? Can you rephrase
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47 (rayt9k5 al1.5 LU DUOI
Page 805
Q. Where did that event take place?
A. In Jaguar, Mission Viejo.
Q. When did that take place?
A. Late January, February.
Q. And you mentioned non -profit breast cancer and
AIDS events. That was two separate events, right?
A. Correct.
Q. When was the breast cancer event?
A. They were around the holidays, in December
'07.
Q. Both of them were in December '07?
A. Correct.
Q. And both were at Fury?
A. Correct.
Q. And no special events permit was obtained from
the city for either of those events, was it?
A. None of those events were nothing but a dinner
including a media event. Was 30 people in our dining
room. The answer to the question is no.
Q. How many people attended the breast cancer
event?
A. About 15.
Q. And how many attended the AIDS event?
A. About 20.
Q. Are you aware that the property on which Fury
Page 806
is located is subject to a use permit issued by the City
of Newport Beach?
A. No.
Q. So then I take it you have never gotten a use
permit?
A. No.
Q. Are you aware that the use permit required
Fury to obtain a live entertain permit from the city?
MR JAMIESON: Objection; lacks foundation, calling
for speculation. He wasn't aware of this. He has never
seen the use pewit.
THE HEARING OFFICER: Overruled.
THE WITNESS: Can you repeat the question? I'm
sorry.
BY MS. AILIN:
Q. Were you aware that the use permit required
Fury to obtain a permit?
A. No.
Q. So you are not aware. I take it you never saw
a live entertainment?
A. No.
Q. So you are not aware that the use permit also
required for you to obtain a private dance club permit
if there was going to be dancing?
A. I have not seen a permit.
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Page 803
1
the question? I don't understand that.
1
2
Q. If you are not executive chef somewhere else,
2
3
are you working as a chef, some other type of chef at
3
4
some other restaurant?
4
5
A. No. I thought that meant that you were asking
5
6
if I did a private event as a chef for a friend, yes,
6
7
but not at a restaurant.
7
8
Q. How many private events for friends have you
8
9
done while you have been working at Fury?
9
10
A. A few.
10
11
Q. More than 10?
11
12
A. No.
12
13
Q. More than rive?
13
14
A. No, about three, four.
14
1s
Q. When you were talking about your formal
15
16
training at the California Culinary Academy, you said
16
17
something about learning numbers. What does that mean?
17
18
A. Learning restaurant numbers, P and L programs,
Is
19
standard recipe forms, how much it costs to build a
19
20
hotel, a restaurant. I should say financial background
20
21
of an establishment.
21
22
Q. You testified that when you first got involved
22
23
in Fury you met Mr. Schillizzi first. Is Mr. Schillizzi
23
24
still involved with Fury?
24
25
A. No, I believe he isn't.
2s
Page 804
1
Q. When did he cease to be involved with Fury?
1
2
A. I don't know.
2
3
Q. When was the last time you spoke with
3
4
Mr. Schillizzi?
4
5
A. Six weeks ago.
5
6
Q. When you spoke with him sic weeks ago, was It
6
7
a face -to -face conversation or over the phone?
7
8
A. Face- to-face.
8
9
Q. And where did that conversation take place?
9
10
A. Fury.
10
11
Q. In talking about the promotional program for
11
12
Fury, you mentioned a media dinner. Where did that
12
13
take place?
13
14
A. Fury.
14
is
Q. When did it take place?
15
16
A. September, October -ish of '07.
16
17
Q. And about how many people were there?
17
18
A. 30.
18
19
Q. Was a special event permit obtained from the
19
20
city for that event?
20
21
A. No.
21
22
Q. And you mentioned Fury sponsored a — sorry —
22
23
excuse me. Strike that.
23
24
You mentioned Fury sponsored a Jaguar event?
24
25
A. Yes.
25
47 (rayt9k5 al1.5 LU DUOI
Page 805
Q. Where did that event take place?
A. In Jaguar, Mission Viejo.
Q. When did that take place?
A. Late January, February.
Q. And you mentioned non -profit breast cancer and
AIDS events. That was two separate events, right?
A. Correct.
Q. When was the breast cancer event?
A. They were around the holidays, in December
'07.
Q. Both of them were in December '07?
A. Correct.
Q. And both were at Fury?
A. Correct.
Q. And no special events permit was obtained from
the city for either of those events, was it?
A. None of those events were nothing but a dinner
including a media event. Was 30 people in our dining
room. The answer to the question is no.
Q. How many people attended the breast cancer
event?
A. About 15.
Q. And how many attended the AIDS event?
A. About 20.
Q. Are you aware that the property on which Fury
Page 806
is located is subject to a use permit issued by the City
of Newport Beach?
A. No.
Q. So then I take it you have never gotten a use
permit?
A. No.
Q. Are you aware that the use permit required
Fury to obtain a live entertain permit from the city?
MR JAMIESON: Objection; lacks foundation, calling
for speculation. He wasn't aware of this. He has never
seen the use pewit.
THE HEARING OFFICER: Overruled.
THE WITNESS: Can you repeat the question? I'm
sorry.
BY MS. AILIN:
Q. Were you aware that the use permit required
Fury to obtain a permit?
A. No.
Q. So you are not aware. I take it you never saw
a live entertainment?
A. No.
Q. So you are not aware that the use permit also
required for you to obtain a private dance club permit
if there was going to be dancing?
A. I have not seen a permit.
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FURY REVOCATION HEARING - 4/22/2008
Page 807
Q. So you have not seen a dance permit issued?
A. No, I have not seen that either.
MS. AILIN: I have no further questions for this
witness.
MR. JAMIESON: Just a couple of things.
REDIRECT EXAMINATION
BY MR. JAMIESON:
Q. Chef Seven, when you were talking about the
media dinner and the various dinners that occurred, can
you explain in a little bit more in detail what those
were?
A. They were really nice. They started off with
cocktails. They come in to dinner, was with mini groups
of the Chamber of Commerce, a lot of writers, magazines,
people Rke that. We started them off with some drinks.
They sat down to dinner. The general manager had me
prepare for them aLive- course dinner with a gift bag
and everything.
Q. And when you use the term media dinner, is
that because the people that were coming to these
dinners were members of the media, different parts of
the media?
A. Yes, magazines, television channels,
conmtercials.
Page 808
Q. With respect to the menus that we have looked
at, the menus that have been in place at Fury were, I
gather then, at least as extensive as we have seen here
and also including other types of items, too; is that
correct?
A. Correct.
MR. JAMIESON: That's all I have. Thank you.
MS. AIL[N: Nothing further.
THE HEARING OFFICER: Thanks. Beautiful creation.
MR. JAMIESON: Mr. Gonzalez, why don't you
come on up?
DAVID GONZALEZ,
having been first duly administered an
oath in accordance with CCP 2094, was
examined and testified as follows:
DIRECT EXAMINATION
BY MR. JAMIESON:
Q. All right. Mr. Gonzalez, state your name and
spell it for the record, please.
A. David, D- a- v -i -d, Gonzales, Go- n -z- a- I -e -z.
Q. And is it Gonzalez?
A. Gonzalez.
Q. With an "S" on the end?
46 (Pages 807 to 810)
Page 809
1 A. vy,n
2 Q. "Z" on the end?
3 A. I know it's —
4 Q. I apologize. Mr. Gonzalez, what is your
5 position with Fury?
6 A. I'm the owner and operator.
7 Q. When you say the owner and operator, is there
8 a corporate entity of some sort in the ownership
9 and operation of this location?
10 A. Yes.
11 Q. And what are the names of those entities?
12 A. Fury LLC and Fury Management, Inc.
13 Q. And is there a Department of Alcohol and
14 Beverage Control, ABC license that is held for Fury
15 for this location?
16 A. Yes.
17 Q. What type of license is that?
18 A. 47.
19 Q. What is your knowledge as an operator of Fury
20 as to what 47 — what a type 47 license is?
21 A. 47 license is based on the ABC requires that
22 you attempt or achieve a 50/50 alcohol to food.
23 Q. And does it require you to be a restaurant?
24 A. It requires you to be a restaurant, yes.
25 Q. And, in fact, with a type 47, to your
Page 810
1 knowledge, are you allowed to allow people in that are
2 under 21?
3 A. Yes.
4 Q. And is it, to your knowledge, what's commonly
5 referred to — let me withdraw that.
6 So with respect to this type 47 ABC license —
7 THE HEARING OFFICER: Mr. Jameson, just a
8 quick question. Is city No. 5 -- and you don't
9 have to look it up. Is this their -- this is a --
10 rat taking this to be a true and correct --
11 MR. JAMIESON: This is -- Mr. Allen, what this is
12 is a printout of the Department of Alcohol and Beverage
13 Control website --
14 THE HEARING OFFICER: Right.
15 MR. JAMIESON: -- that reflects the license for
16 Fury LLC doing business as Fury Rok and Rol Sushi that's
17 actually not quite correct, but it reflects 47 on sale
18 general use liquor license. It's accurate. We will
19 stipulate to that.
20 THE HEARING OFFICER: Okay.
21 MR- JAMIESON: And that there is also a caterer's
22 permit that was issued which is type 58, and there is no
23 disciplinary action on the license, and we will
24 stipulate to all that.
25 THE HEARING OFFICER: All right. Good.
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FURY REVOCATION HEARING - 4/22/2008
Page 811
MR. JAMIESON: Thank you.
1
Q. Now, Mr. Gonzalez, when did you fast begin to
2
look into the space that later became Fury?
3
A. Roughly January, February of 2007.
4
Q. And when you first saw the space, was it
5
vacant?
6
A. No.
7
Q. What was there?
8
A. Hamburger Mary's.
9
Q. Did you walk through the premises? 1
10
A. Yes,
11
Q. Now, you have seen us refer to Exhibit 7,
12
which is a floor plan for Fury. Is that something that
13
you in the context of getting ready to open this place j
14
actually had done and provided to various advertisers? j
15
A. Yes.
16
Q. And does it accurately depict what was
17
existing there with regard to the dance floor, where the
18
dance floor was, the bar, the kitchen and all those
19
different areas?
20
A. Yes.
21
Q. When did you open Fury?
22
A. The opening date was June 22, 2007.
23
Q. Now, you sat here while Chef Sevan was
24
testifying; is that right?
25
47 (Pages 811 to 814)
Page 813
correct?
A. Yes.
Q. Now, is it your understanding that the
conditional use permit is for an eating and drinking and
establishment with live entertainment and cafe dance
entertainment?
A. Yes.
Q. Did you become aware at some point that you
were required to obtain permits for live entertainment
and cafe dancing?
A. WM
Q. Did the business actually obtain those
permits?
A. Yes, they did.
Q. And those permits, to your knowledge, what do
they allow Fury to do?
A. They allow us to — they allow us to have live
entertainment. We can have life entertainment Tuesday
through — Tuesday and Wednesday, I believe, until —
live entertainment until 11:00 or 10:00, 1 think 1
remember, and then Thursday through Sunday until 2:00
a.m. I think it's 11:00 p.m. Tuesday, Wednesday, and
then I think It's 2:00 a.m. Thursday through Sunday.
Q. Can you describe for us the percentage of the
premises roughly that is attributable to the dance
Page 814
floor?
A. The actual dance floor itself?
Q. Yes.
A. Less than 20 percent.
Q. With respect to where the live entertainment
would take place — by the way, what types of five
entertainment do you have there?
A. We have had D.J.'s, and we had jazz and live
music during dinner.
Q. And when that live entertainment is provided,
where Is that located?
A. On the dance floor.
Q. Now, there is also a D.J. booth somewhere near
the dance floor; is that right?
A. Yes.
Q. What is — in percentage, roughly what is the
size of the D.J. booth compared to the dance floor?
A. It's a tenth of the size.
Q. A tenth of the size of the dance floor?
A. Of the dance floor.
Q. Now, what efforts did you make to build up the
food service at Fury?
A. Well, we first brought on Chef Sevan, and like
I said, gave Chef Sevan a full range to do whatever he
felt it would take to make that place successful. And
Precise Reporting Service
714- 647 -9099
Page 812
1
A. Yes.
1
2
Q. And Chef Sevan testified with regard to the
2
3
creative license that you and the other people of Fury
3
4
provided to him?
4
5
A. Yes.
5
6
Q. Did you hear that?
6
7
A Yes.
7
8
Q. Was that an accurate description of what you
8
9
allowed him to do?
9
10
A. Yes.
10
11
Q. And what was your concept in terms of what
11
12
Fury would be and how it opened up?
12
13
A. My concept was we wanted to do a — at first
13
14
it was pretty much a steak and seafood, sushi
14
15
restaurant, and when we brought Chef Sevan, we gave him
15
16
pretty much full range in being able to come up with a
16
17
concept that he deemed would be successful in that
17
18
location.
18
19
Q. In terms of what? Food service?
19
20
A. Food service.
I 20
21
Q. Now, you became aware and you are aware that
21
22
there is a conditional use permit for the property; is
22
23
that right?
23
24
A. Yes.
24
25
Q. And you have read the conditional use permit,
25
47 (Pages 811 to 814)
Page 813
correct?
A. Yes.
Q. Now, is it your understanding that the
conditional use permit is for an eating and drinking and
establishment with live entertainment and cafe dance
entertainment?
A. Yes.
Q. Did you become aware at some point that you
were required to obtain permits for live entertainment
and cafe dancing?
A. WM
Q. Did the business actually obtain those
permits?
A. Yes, they did.
Q. And those permits, to your knowledge, what do
they allow Fury to do?
A. They allow us to — they allow us to have live
entertainment. We can have life entertainment Tuesday
through — Tuesday and Wednesday, I believe, until —
live entertainment until 11:00 or 10:00, 1 think 1
remember, and then Thursday through Sunday until 2:00
a.m. I think it's 11:00 p.m. Tuesday, Wednesday, and
then I think It's 2:00 a.m. Thursday through Sunday.
Q. Can you describe for us the percentage of the
premises roughly that is attributable to the dance
Page 814
floor?
A. The actual dance floor itself?
Q. Yes.
A. Less than 20 percent.
Q. With respect to where the live entertainment
would take place — by the way, what types of five
entertainment do you have there?
A. We have had D.J.'s, and we had jazz and live
music during dinner.
Q. And when that live entertainment is provided,
where Is that located?
A. On the dance floor.
Q. Now, there is also a D.J. booth somewhere near
the dance floor; is that right?
A. Yes.
Q. What is — in percentage, roughly what is the
size of the D.J. booth compared to the dance floor?
A. It's a tenth of the size.
Q. A tenth of the size of the dance floor?
A. Of the dance floor.
Q. Now, what efforts did you make to build up the
food service at Fury?
A. Well, we first brought on Chef Sevan, and like
I said, gave Chef Sevan a full range to do whatever he
felt it would take to make that place successful. And
Precise Reporting Service
714- 647 -9099
FURY REVOCATION HEARING - 4/22/2008
48 (Pages 815 to 818)
Page 817
THE HEARING OFFICER: Could you slow down for just
a minute? Would you please read back the question and
answer. Ijust like to reuse them for —
(Record read.)
BY MR. JAMIESON:
Q. Did you use them also to drive traffic to the
restaurant?
A. Absolutely,
Q. Did you use them to drive traffic to your live
entertainment?
A. Yes.
Q. Did you use them to drive traffic to your
dancing?
A. Yes.
Q. Did you use them to drive traffic to all
aspects of Fury?
A. Yes.
Q. When you say you used them, how is it that
these people or these entities that you were utilizing
for marketing and advertising actually get compemated?
A. We would pay them a Flat fee on a weekly and
monthly basis.
Q. Did you ever share profits with any of these
people that were doing marketing or advertising?
A. Na
Page 816
EXAMINATION
THE HEARING OFFICER: So it was Social Group and
who else were you --
THE WITNESS: Sienna Entertainment.
THE HEARING OFFICER: Sienna?
THE WITNESS: And Upscale Access.
THE HEARING OFFICER: And you pay them a flat
fee --
THE WITNESS: Flat fee.
THE HEARING OFFICER: -- to bring groups and
individuals and --
THE WITNESS: Birthday parties and dinners, they
get a flat fee.
THE HEARING OFFICER: They have a variety of
services or arrangements that they make —
THE WITNESS: They do.
THE HEARING OFFICER: -- with their people and then
bring it to you, and then you --
THE WITNESS: They do e-mail campaigns. I believe
they do text messages. I believe that they have
websites that they have that they will promote to their
people or market to their people because you subscribe,
I think, to become a member of Social Group, so that's
how I believe -- but I don't have the whole back end of
how they do things.
Precise Reporting Service
714 - 647 -9099
",a'�
Page 8151
1
then in August of 2007 we had brought on Wondermarks,
1
2
which the representative was Mona Shaw, and Mona Shaw;
2
3
and I and Chef Sevan would meet three, four, five times
! 3
4
a week and come up with a plan to promote and market
4
5
Fury's restaurant.
i 5
6
Q. Now, in terms of your efforts with Mona Shaw
6
7
and Chef Sevan, was that for food service, was that for
7
8
service of alcohol, was that for entertainment?
e
9
A. Restaurant only.
9
10
Q. And during what period of time did you make
10
11
these efforts with Mona Shaw and Chef Sevan?
11
12
A. August 2007 until present.
12
13
Q. How did you find Mona Shaw?
13
14
A. She was referred to me by Michael Cho, and
14
15
Michael Cho is the one that actually helped us get the
15
16
establishment.
16
17
Q. And did you look into the background of
17
18
Mona Shaw?
is
19
A. Yes.
19
20
Q. Did you look into the background of
20
21
Chef Sevan?
21
22
A. Yes.
22
23
Q. Did you hear what Chef Sevan had to say about
23
24
Mona Shaw's background with regard to marketing,
24
25
advertising food service?
25
Page 816
1
A. Yes.
1
2
Q. And did that — did those statements in that
2
3
regard appear to be incorrect or correct?
3
4
A. Correa. I actually researched Mona Shaw
4
5
through other accounts that she was working with as well
5
6
prior to bringing her aboard.
6
7
Q. Now, let's talk about the efforts that Fury (
7
8
made at advertising and marketing what was being offered
8
9
at the location. We have heard testimony with regard to
9
10
something called Social Group and Emax and a couple
10
11
other things, Sienna.
11
12
A. Yes.
12
13
Q. Were you sitting here when you heard that?
13
14
A. Yes. j
14
15
Q. To your knowledge, how did Fury utilize, if at
15
16
all, these groups?
16
17
A. We used them as a marketing team, and their
17
18
job was to market Fury. They would drive traffic to our
18
19
restaurant, book dinners, book events in terms of
19
20
birthday parties and stuff for dinner arrangements as
20
21
well as they would drive traffic to our live
21
22
entertainment as well.
22
23
Q. And dancing, too?
23
24
A. And dancing, yes.
24
25
Q. And how—
25
48 (Pages 815 to 818)
Page 817
THE HEARING OFFICER: Could you slow down for just
a minute? Would you please read back the question and
answer. Ijust like to reuse them for —
(Record read.)
BY MR. JAMIESON:
Q. Did you use them also to drive traffic to the
restaurant?
A. Absolutely,
Q. Did you use them to drive traffic to your live
entertainment?
A. Yes.
Q. Did you use them to drive traffic to your
dancing?
A. Yes.
Q. Did you use them to drive traffic to all
aspects of Fury?
A. Yes.
Q. When you say you used them, how is it that
these people or these entities that you were utilizing
for marketing and advertising actually get compemated?
A. We would pay them a Flat fee on a weekly and
monthly basis.
Q. Did you ever share profits with any of these
people that were doing marketing or advertising?
A. Na
Page 816
EXAMINATION
THE HEARING OFFICER: So it was Social Group and
who else were you --
THE WITNESS: Sienna Entertainment.
THE HEARING OFFICER: Sienna?
THE WITNESS: And Upscale Access.
THE HEARING OFFICER: And you pay them a flat
fee --
THE WITNESS: Flat fee.
THE HEARING OFFICER: -- to bring groups and
individuals and --
THE WITNESS: Birthday parties and dinners, they
get a flat fee.
THE HEARING OFFICER: They have a variety of
services or arrangements that they make —
THE WITNESS: They do.
THE HEARING OFFICER: -- with their people and then
bring it to you, and then you --
THE WITNESS: They do e-mail campaigns. I believe
they do text messages. I believe that they have
websites that they have that they will promote to their
people or market to their people because you subscribe,
I think, to become a member of Social Group, so that's
how I believe -- but I don't have the whole back end of
how they do things.
Precise Reporting Service
714 - 647 -9099
",a'�
FURY REVOCATION HEARING - 4/22/2008
YJ \GOy GTJ ViJ l-v VG4/
Page 821
make sure that Jeffrey Grasso was doing his job. I was
overseeing everything, and then I would also monitor
what was going on outside the building as well as
inside, making sure that we weren't exceeding numbers,
making sure that everything was just being done
efficiently.
Q. Now, with respect to aline that would form
outside the premises at night sometimes, what was the
purpose of that line?
A. That is for people to be able to gain entrance
into Fury. And the purpose of that was to maintain the
numbers of individuals that are entering into Fury.
Q. What was the occupancy load of Fury?
A. 297.
Q. And what efforts did you make sure were made
to confirm that the occupancy load was not exceeded?
A. I would check the clickers, troth the number of
individuals that were entering into Fury as well as the
number of individuals that were exiting Fury. I would
also walk the interior of Fury making sure that based on
my knowledge of where the numbers were at all times th
we were never exceeding those numbers for capacity
purposes.
Q. Now, with respect to the number of people in
the premises at any given time, do you remember a
Page 822
particular circumstance where you, David Gonzalez, were
issued a citation for alleged overcrowding and blocking
of aisles?
A. Yes.
Q. And were you present that night at Fury when
that citation was issued?
A. Yes.
Q. Was Fury overcrowded?
A. No.
Q. Did Fury have any blocked aisles?
A. No.
Q. How do you know that both of those things
occurred?
A. Because 1 had been inside of Fury, and I know
what 297 looks like. I know what the clickers were in
and out, and I know that the numbers, based on me being
there for eight months, were accurate in terms of what
our occupancy load was.
Q. Let me break that down. So for that
particular evening when that citation was issued, you
did make a visual estimation of the number of people
within Fury; is that correct?
A. Yes.
Q. And at anytime on your visual estimation did
you we the number of people that you felt exceeded 297?
Precise Reporting Service
714 - 647 -9099
yAll
Page 819
1
THE HEARING OFFICER: There was an individual on
1
2
the video that indicated that he was promoting Fury as a
2
3
new hot location?
3
4
THE WITNESS: Uh -huh.
4
5
THE HEARING OFFICER: Was he one of these -- was he
5
6
Sienna or Upscale Access?
6
7
THE WITNESS: He was Social Group.
7
8
THE 14EARING OFFICER: Social Group. Thank you.
e
9
BY MR. JAMIESON:
j 9
10
Q. Just to make sure we are clear, in all of
10
11
these advertising and marketing efforts that were made
11
12
by these people, they were all paid by Bat fee for the
12
13
service; is that right?
13
14
A. Absolutely.
14
15
Q. And were there any profits that were shared
15
16
with any of these people for any of these services?
16
17
A. No.
17
18
Q. Now, we also heard some testimony about
18
19
certain websites that talked about ticket sales; do
! 19
20
you remember that?
20
21
A. Uh -huh, yes.
j 21
22
Q. That's "yes "?
22
23
A. Yes.
23
24
Q. Are you aware of any tickets that were sold in
24
25
that manner?
25
Page 820)
1
A. There were none.
1
2
Q. There were no tickets sold?
2
3
A. There were no tickets sold.
3
4
Q. So whatever was advertised there it wasn't
4
5
tickets sold for Fury?
5
6
A. It was not.
6
7
Q. Did Fury ever authorize that tickets be sold
7
8
on the web?
8
9
A No.
9
10
Q. And to your knowledge, tickets were never
to
11
sold; is that correct?
11
12
A. Yes.
12
13
Q. How often would you frequent Fury since it
13
14
opened?
14
15
A. I would be there a minimum of one to two
15
16
nights that we were open a week, one of the two nights.
16
17
Q. And during the times that you were there, what
17
18
were your duties? What did you observe." What kind of
16
19
things would you look for?
19
20
A. I would view to make sure everything was
20
21
running efficiently. I would make sure that all of the
21
22
managers were doing their jobs. I would watch over the
22
23
bartenders making sure that they were ringing all the
23
24
drinks. 1 would make sure the food line was being run
24
25
efficiently, make sure Chef Sevan was doing his job,
25
YJ \GOy GTJ ViJ l-v VG4/
Page 821
make sure that Jeffrey Grasso was doing his job. I was
overseeing everything, and then I would also monitor
what was going on outside the building as well as
inside, making sure that we weren't exceeding numbers,
making sure that everything was just being done
efficiently.
Q. Now, with respect to aline that would form
outside the premises at night sometimes, what was the
purpose of that line?
A. That is for people to be able to gain entrance
into Fury. And the purpose of that was to maintain the
numbers of individuals that are entering into Fury.
Q. What was the occupancy load of Fury?
A. 297.
Q. And what efforts did you make sure were made
to confirm that the occupancy load was not exceeded?
A. I would check the clickers, troth the number of
individuals that were entering into Fury as well as the
number of individuals that were exiting Fury. I would
also walk the interior of Fury making sure that based on
my knowledge of where the numbers were at all times th
we were never exceeding those numbers for capacity
purposes.
Q. Now, with respect to the number of people in
the premises at any given time, do you remember a
Page 822
particular circumstance where you, David Gonzalez, were
issued a citation for alleged overcrowding and blocking
of aisles?
A. Yes.
Q. And were you present that night at Fury when
that citation was issued?
A. Yes.
Q. Was Fury overcrowded?
A. No.
Q. Did Fury have any blocked aisles?
A. No.
Q. How do you know that both of those things
occurred?
A. Because 1 had been inside of Fury, and I know
what 297 looks like. I know what the clickers were in
and out, and I know that the numbers, based on me being
there for eight months, were accurate in terms of what
our occupancy load was.
Q. Let me break that down. So for that
particular evening when that citation was issued, you
did make a visual estimation of the number of people
within Fury; is that correct?
A. Yes.
Q. And at anytime on your visual estimation did
you we the number of people that you felt exceeded 297?
Precise Reporting Service
714 - 647 -9099
yAll
FURY REVOCATION HEARING - 4/22/2008
5v trages azs UU OZo?
Page 825
Q. And that citation required you to appear at
the courthouse a few weeks later; is that right?
A. I believe it was almost two months later.
Q. A couple months later?
A. Yes.
Q. And the citation actually provided a date and
time for you to appear at the courthouse on that
citation; is that correct?
A. Yes.
Q. Did you cause a lawyer to go down and appear
that day?
A. Yes, 1 had brought on Michael Cho to represent
me and go down to the city and —
Q. Was a plea entered at that time?
A. No.
Q. Was a pies ever entered for that citation?
A. No.
Q. Was there ever any conviction for that
citation?
A. No.
Q. To your knowledge, was there any criminal
filing based on that citation?
A. No.
Q. To your knowledge, as you sit here today, has
there ever been any criminal filing on that citation?
Page 826
A. No.
Q. And again, so we are clear, you dispute that
it was overcrowded that night?
A. Yes.
Q. You think you are right?
A. Yes.
Q. Yes?
A. Yes.
Q. Let's talk about the trash dumpster issue and
the trash that we saw on some of the photographs. Did
you see those photographs?
A. Yes, I did.
Q. And with respect to the photographs that we
saw with the people standing there with the white shirts
and looking at the boxes; do you remember those
photographs?
A. Yes, l do.
Q. Do you have — based on your knowledge and
experience of where trash is kept at Fury and how the
process was supposed to work and how it did work in
practice, do you have an explanation as to what we are
looking at in the photographs?
MS. AILIN: Objection.
THE WITNESS: Yes.
MS. AIIAV: Objection; assumes facts not in
Precise Reporting Service
714 - 647 -9099
V J
Page 823
1
A. No.
1
2
Q. And at the time that that happened, is it fair
2
3
to say that you had been in Fury and estimated the
3
4
number of people in Fury at any given time more than 100
4
5
times?
5
6
A. I make a visual estimate probably on average
6
7
10 to 20 times a night that I'm in Fury, and that is one
7
8
of my duties the nights that I'm in there and one of my
8
9
partner's duties on the nights that he is in there.
9
10
Q. Now, the particular night where the citation !
10
11
was issued, you mentioned clickers going in and
11
12
clickers going out?
12
13
A. Yes. :
13
14
Q. Can you describe for the hearing officer what
14
15
that means and specifically what you observed that night
15
16
of those clickers on that particular occasion?
16
17
A. How you —when you enter into Fury —just to
17
18
give you a whole synopsis of it, when you enter into
18
19
Fury at the bottom of the ramp is our line. Our door
19
20
host will let the individuals in, and when he comes up
20
21
the ramp, you will have an I.D. scanner right there
21
22
where he will check I.D.s and scan I.D.s. He is the
22
23
individual that will click the people entering into
23
24
Fury, and he also is standing right at the door, him and
24
25
his partner clicking the people that leave or exit.
25
— Page 824
1
Q. On that particular evening when the citation
1
2
was issued, you looked at those clickers?
2
3
A. Yes.
3
4
Q. And what did those clickers reflect to you?
4
5
A. They did not --
5
6
Q. In terms of the number of people in the
6
7
premises at the time?
7
a
A. Do you want the exact number?
8
9
Q. No, I want you to tell us whether or not you
9
10
know the exact number.
10
11
A. I know the exact number.
11
12
Q. Okay.
1 12
13
A. I remember that night. 279.
'�i 13
14
Q. So the number that night was 279?
14
15
A. Yes.
15
16
Q. When you were issued the citation reflecting
16
17
overcrowding—
17
18
A. Yes.
18
19
Q. — did you protest that? Did you tell them
19
20
that was incorrect?
20
21
A. He actually didn't even talk to me about it.
21
22
Q. You didn't get a chance to?
22
23
A. I didn't get a chance to.
23
24
Q. Now, did you see any aisles that were blocked?
24
25
A. No.
25
5v trages azs UU OZo?
Page 825
Q. And that citation required you to appear at
the courthouse a few weeks later; is that right?
A. I believe it was almost two months later.
Q. A couple months later?
A. Yes.
Q. And the citation actually provided a date and
time for you to appear at the courthouse on that
citation; is that correct?
A. Yes.
Q. Did you cause a lawyer to go down and appear
that day?
A. Yes, 1 had brought on Michael Cho to represent
me and go down to the city and —
Q. Was a plea entered at that time?
A. No.
Q. Was a pies ever entered for that citation?
A. No.
Q. Was there ever any conviction for that
citation?
A. No.
Q. To your knowledge, was there any criminal
filing based on that citation?
A. No.
Q. To your knowledge, as you sit here today, has
there ever been any criminal filing on that citation?
Page 826
A. No.
Q. And again, so we are clear, you dispute that
it was overcrowded that night?
A. Yes.
Q. You think you are right?
A. Yes.
Q. Yes?
A. Yes.
Q. Let's talk about the trash dumpster issue and
the trash that we saw on some of the photographs. Did
you see those photographs?
A. Yes, I did.
Q. And with respect to the photographs that we
saw with the people standing there with the white shirts
and looking at the boxes; do you remember those
photographs?
A. Yes, l do.
Q. Do you have — based on your knowledge and
experience of where trash is kept at Fury and how the
process was supposed to work and how it did work in
practice, do you have an explanation as to what we are
looking at in the photographs?
MS. AILIN: Objection.
THE WITNESS: Yes.
MS. AIIAV: Objection; assumes facts not in
Precise Reporting Service
714 - 647 -9099
V J
FURY REVOCATION HEARING - 4/22/2008
51 (Pages 827 to 830)
Page 829
a week, and that is where we bring the dumpster out to
be picked up for the refuse, and the boxes are broken
out outside of Fury and loaded into the dumpster.
Q. So in terms of where the trash or the refuse
is stored and where the dumpsters are stored where is
that done at Fury?
A. On the south end of Fury.
Q. Was it within the enclosure or not?
A. Repeat the question.
Q. As to where it's stored.
A. It's stored in the enclosure — in the
enclosure on the south end of Fury.
Q. So the photographs that we looked at, does
that appear to be consistent with how you understand the
trash to be dealt with?
A. Yes.
Q. All right. Let's talk about parking. You
have heard testimony while you have been sitting here
about the shared parking lot that is the street level
parking lot shared by Fury and the other two businesses;
is that correct?
A. Yes.
Q. And you are aware that there is a multi-level
parking structure to the southeast of Fury, shared
parking lot; is that right?
Page 830
A. Yes.
Q. And with regard to the Fury employees — first
of all, approximately how many employees generally would
be working at Fury at any given time? Obviously while
It's open.
A. We can have in the vicinity of over 50 people,
45, 50 people at one time.
Q. And with respect to the location where the
employees are encouraged to park, what is the policy and
procedure with Fury as to where the employees are
encouraged to park?
A. Encourage them to park in the parking
structure is where we encourage everyone to park their
cars.
Q. If you have 50 people and you've got 16 spaces
that you provide — by the way, did you provide 16
Spaces?
A. Yes, we did.
Q. After the 16 spaces are filled up, where are
the employees encouraged to park?
A. In the shared parking lot.
Q. Upon your review of the conditional use
permit, did you see any prohibition of the employees
parking in the shared parking lot?
A. No.
Precise Reporting Service
714- 647 -9099
Page 827
1
evidence as to his knowledge about where trash is kept
1
2
and how it's handled.
2
3
MR. JAMIESON: I think there is probably no better
3
4
person to talk about how trash is kept and where it's --
4
5
THE HEARING OFFICER: Go ahead and just briefly
5
6
examine him on whether he does.
6
7
BY MR. JAMIESON:
7
8
Q. Mr. Gonzalez, me you aware of where the trash
8
9
is kept at Fury?
9
10
A. Yes.
10
11
Q. Do you know where the trash dumpsters are
11
12
kept?
12
13
A. Yess,
13
14
Q. Do you know that there is a trash enclosure 1
14
15
there at the building?
15
16
A. Yes.
16
17
Q. With the directions that we have been talking
17
18
about, that is in that shared parking lot with the Fury j
18
19
building being at the south end of the parking lot —
19
20
A. Yes.
20
21
Q. — and the front door of Fury being at the
21
22
north end of that building. Okay? Do you have that in
22
23
mind?
23
24
A. Yes, yes.
24
25
Q. Where are the trash enclosures and the trash
25
_
Page 828
1
dumpsters kept?
1
2
A. On the south end of Fury.
2
3
Q. In terms of the trash dumpsters, where have
3
4
the trash dumpsters been stored?
4
5
A. On the south end of Fury.
5
6
Q. And are they stored within the enclosure?
6
7
A. Yes.
7
8
Q. And the photographs that we saw that reflect
8
9
cardboard boxes outside the trash enclosure and j
9
10
potentially a dumpster outside that enclosure, based on
10
11
your knowledge of the operating procedures of Fury, the
11
12
dumping of the trash, the collapsing of the boxes,
12
13
getting it ready for refuse pickup, are you familiar
13
14
with all of that process?
14
15
A. Yes.
15
16
Q. Based on your knowledge of that, what does it
16
17
appear is going on in that photograph?
17
18
A. That area is where we break down the boxes and
1 a
19
load them into the trash bin.
19
20
Q. What about the dumpster that we see in that
20
21
photograph? It seems to be outside of the enclosure.
21
22
What is your understanding of how that happens when the
zz
23
boxes are being broken down and getting ready for refuse
23
24
pickups?
24
25
A. We have pickups, I believe, two to three times
25
51 (Pages 827 to 830)
Page 829
a week, and that is where we bring the dumpster out to
be picked up for the refuse, and the boxes are broken
out outside of Fury and loaded into the dumpster.
Q. So in terms of where the trash or the refuse
is stored and where the dumpsters are stored where is
that done at Fury?
A. On the south end of Fury.
Q. Was it within the enclosure or not?
A. Repeat the question.
Q. As to where it's stored.
A. It's stored in the enclosure — in the
enclosure on the south end of Fury.
Q. So the photographs that we looked at, does
that appear to be consistent with how you understand the
trash to be dealt with?
A. Yes.
Q. All right. Let's talk about parking. You
have heard testimony while you have been sitting here
about the shared parking lot that is the street level
parking lot shared by Fury and the other two businesses;
is that correct?
A. Yes.
Q. And you are aware that there is a multi-level
parking structure to the southeast of Fury, shared
parking lot; is that right?
Page 830
A. Yes.
Q. And with regard to the Fury employees — first
of all, approximately how many employees generally would
be working at Fury at any given time? Obviously while
It's open.
A. We can have in the vicinity of over 50 people,
45, 50 people at one time.
Q. And with respect to the location where the
employees are encouraged to park, what is the policy and
procedure with Fury as to where the employees are
encouraged to park?
A. Encourage them to park in the parking
structure is where we encourage everyone to park their
cars.
Q. If you have 50 people and you've got 16 spaces
that you provide — by the way, did you provide 16
Spaces?
A. Yes, we did.
Q. After the 16 spaces are filled up, where are
the employees encouraged to park?
A. In the shared parking lot.
Q. Upon your review of the conditional use
permit, did you see any prohibition of the employees
parking in the shared parking lot?
A. No.
Precise Reporting Service
714- 647 -9099
FURY REVOCATION HEARING - 4/22/2008
52 (Pages 831 to 834)
Page 833
Q. Let's talk about the consolidated sales
detail. In the city's Exhibits 24 and 25,1 think it is
— that's here, yes — it reflects some of the documents
that were provided to the city apparently by Fury
through Mr. Cho, perhaps?
A. Yes.
Q. Back in November, maybe; is that right? Do
you remember? I don't know.
A. It started probably back — if f can remember
correctly, I think it started back in October,
possibly November.
Q. And in terms of what they reflect in general,
did they reflect any kind of a trend of food versus
alcohol?
A. Yes.
Q. And what trends did they reflect?
A. They reflected a substantial increase in food.
They showed a substantial increase in food from the day
we opened until the present.
Q. Now, in Fury's Exhibit 26, this is a similar
consolidated system sales detail, and this is reflecting
January 1 to January 31, 2008; is that right?
A. Yes.
Q. And does this also reflect a continued trend
of food versus alcohol?
Page 834
A. Yes.
Q. And by this time — first of all, by October
how long had Fury been open?
A. By October, we had opened June 22nd, so you
are looking at two -- July, August, September, four
months.
Q. So by January it had been open about six
months?
A. Six months, seven months.
Q. So by the end of January 31, 2008 in Exhibit
26 here, what does it reflect with respect to food
versus alcohol?
A. It shows food to be higher than alcohol sales.
Q. And what were the numbers, the dollars?
A. Food sales were $169,618.20.
Q. So 169,000 and change?
A. Yes,
Q. And alcohol?
A. Alcohol breaks down to three categories. You
have liquor sales, roughly one 116,000, and your pour
sales roughly 16,000 and you have wine sales are roughly
10,000.
Q. So it's about 143,000?
A. Yes.
Q. Do you go back as an administrator or anybody
Precise Reporting Service
714 - 647 -9099
Y>
Page 831
1
Q. Did you see any requirement that the employees
1
2
park in the multi-level parking structure?
2
3
A. No.
3
4
Q. Now, with the respect to the Fury hang tags,
4
5
what was the purpose of the Fury hang tags?
5
6
A. To be able to — we had an October 24th,1
6
7
think, or October 20th meeting with Aaron Harp in the
7
8
city, and we had come up with —
8
9
THE HARING OFFICER: Excuse me. When w s that?
9
10
THE WITNESS: October meeting.
10
11
THE HEARING OFFICER: '07?
11
12
THE WITNESS: Of'07, and they decided to have Fury
12
13
tags, so that they can I.D. Fury employees parking in
13
14
the parking structure on the 16 spots.
14
15
BY MR. JAMIESON:
15
16
Q. By the way, when did the employees generally
16
17
park in those 16 spots in terms of the time of day?
17
18
A. Roughly they would come in at the shifts
is
19
around eight to nine o'clock.
19
20
Q. And when you say the shifts around eight to
20
21
nine o'clock, how did the shifts run?
21
22
A. Well, we would have — the dinner shifts would
22
23
start — employees would start coming in around 4:00,
23
24
4:30, and that would be for the dinner servers, and then
24
25
the cocktail waitresses and later employees would come
25
Page 832;
1
on staggered shifts somewhere between 8:00 and 9:30.
1
2
Q. And the employees that would come between 8:00
2
3
and 9:30, were they more likely to park in the
3
4
structure than the ones that came in at 4:30 or
1 4
5
5:00?
5
6
A. Absolutely.
6
7
Q. Now, with respect to the people that parked in
7
8
the shared parking lot at 4:30 or 5:00, was — did
8
9
Chef Sevan generally park in that shared lot near the
9
10
back door?
10
11
A. Yes.
11
12
Q. And how about you? Did you generally park in
12
13
that shared lot near the door?
13
14
A. Yes.
14
15
Q. How about Mr. Schillizzi? Did he generally
15
16
park there?
16
17
A. Yes.
17
18
Q. And you guys were there at all times during
18
19
the day; is that right?
19
20
A. Yes, periodically throughout the whole day.
20
21
Q. Now, did Mr. SchillUA and Chef Sevan also
21
22
have these Fury hang tags?
22
23
A. Chef Sevan did.
23
24
Q. Chef Sevan did?
24
25
A. Yes.
25
52 (Pages 831 to 834)
Page 833
Q. Let's talk about the consolidated sales
detail. In the city's Exhibits 24 and 25,1 think it is
— that's here, yes — it reflects some of the documents
that were provided to the city apparently by Fury
through Mr. Cho, perhaps?
A. Yes.
Q. Back in November, maybe; is that right? Do
you remember? I don't know.
A. It started probably back — if f can remember
correctly, I think it started back in October,
possibly November.
Q. And in terms of what they reflect in general,
did they reflect any kind of a trend of food versus
alcohol?
A. Yes.
Q. And what trends did they reflect?
A. They reflected a substantial increase in food.
They showed a substantial increase in food from the day
we opened until the present.
Q. Now, in Fury's Exhibit 26, this is a similar
consolidated system sales detail, and this is reflecting
January 1 to January 31, 2008; is that right?
A. Yes.
Q. And does this also reflect a continued trend
of food versus alcohol?
Page 834
A. Yes.
Q. And by this time — first of all, by October
how long had Fury been open?
A. By October, we had opened June 22nd, so you
are looking at two -- July, August, September, four
months.
Q. So by January it had been open about six
months?
A. Six months, seven months.
Q. So by the end of January 31, 2008 in Exhibit
26 here, what does it reflect with respect to food
versus alcohol?
A. It shows food to be higher than alcohol sales.
Q. And what were the numbers, the dollars?
A. Food sales were $169,618.20.
Q. So 169,000 and change?
A. Yes,
Q. And alcohol?
A. Alcohol breaks down to three categories. You
have liquor sales, roughly one 116,000, and your pour
sales roughly 16,000 and you have wine sales are roughly
10,000.
Q. So it's about 143,000?
A. Yes.
Q. Do you go back as an administrator or anybody
Precise Reporting Service
714 - 647 -9099
Y>
FURY REVOCATION HEARING - 4/22/2008
n.5 Irages 037 LU aJO/
Page 837
Q. Why didn't that occur earlier?
A. Because they had a long waiting list of times
to actually come to the establishment. When I first
spoke to Danielle Schafer who's actually the one that
performed the LEADS training at Fury, they did not have
an opening until, I believe it was January, February of
this year. That's 2008. I actually got her to come to
our establishment in October of 2007.
Q. Danielle Schafer was an employee of the
Department of Alcohol and Beverage Control; is that
right?
A. Yes.
Q. And Danielle Schafer did come to do the
training that was done at Fury, and it was the city
that advised you of that?
A. Yes.
MR. JAMIESON: That's all 1 have of Mr. Gonzalez.
CROSS-EXAMINATION
BY MS, AII.IN:
Q. Mr. Gonzalez, you mentioned a meeting with the
city attorney's office In October 2007?
A Yes.
Q. What was the subject of that meeting?
A. It was to understand the operations of Fury.
Page 838
Q. For the city attorney's office to understand
the operations of Fury?
A. Yeah, the city attorney wanted to — when 1
say the city attorney, the assistant city attorney,
Aaron Harp, wanted to get a better understanding of how
Fury operates and what exactly we are doing in terms of
concept and business plan.
Q. Didn't Mr. Harp raise issues at that meeting
about what appeared to be violations of the use permit
by Fury at that meeting?
A. Aaron Harp, he brought up what — can you say
that one more time? Say that one more time.
MS. AB-IN: Could I have the court reporter read
the question back?
(Record read.)
BY MS. AILIN:
Q About apparent violations of the use permit?
A. Yes, he addressed his concerns.
Q. And do you recall specifically what aspects of
the use permit he was concerned about?
A. He was concerned — at that time based on my
recollection, he was concerned —
MR. JAMIESON: Let me state a belated objection;
that it is irrelevant, and it's outside the scope of
direct. We never even got into a discussion at the city
Precise Reporting Service
714- 647 -9099
Page 835
1
of Fury and look at these numbers and in any way
1
2
reconcile and audit them at the end of various quarters?
2
3
A. Yes.
3
4
Q. And the first quarter of 2008 would be
4
5
completed at the end of March?
5
6
A. It would actually be completed in April.
6
7
Q. In April?
7
8
A. Yes.
8
9
Q. And we are in April right?
i 9
10
A. We are in April right now.
10
11
Q. Have you had a chance to go back and reconcile
11
12
what those numbers reflect?
12
13
A. No, I have not
13
14
Q. Is Exhibit 26 a true and accurate copy of the
14
15
document that it purports to reflect?
15
16
A. Yes.
16
17
MR. JAMIESON: Move into evidence 26, please.
17
18
MS.AILIN: Noobjection. Ibelieveitwas.
18
19
THE HEARING OFFICER: I thought we stipulated to
19
20
city Exhibits 24, 25 and F 26?
20
21
MS. AB.IN: We did.
21
22
MR, JAMIESON: I want to take a moment with my
22
23
client. I want to just find out about something,
23
24
and I can probably streamline it.
24
25
25
1
Page 836
BY MR. JAMIESON:
1
2
Q. Mr. Gonzalez, did you provide any type of
2
3
alcohol range — alcohol service range for your
3
4
employees at Fury?
4
5
A. Yes.
5
6
Q. And what type of training was provided to
6
7
them?
7
8
A. LEADS training.
8
9
Q. What is LEADS training?
9
10
A. It's training all the employees on serving
10
11
alcobol, over serving alcohol, how to properly check
11
12
LD.s, what to look for in terms of people being over
12
13
intoxicated or any type of narcotic use and so forth.
13
14
Q. And what — who offers the LEADS training?
14
15
A. The ABC, Alcohol and Beverage Control.
15
16
THE HEARING OFFICER: Is that L- E -A -D?
16
17
MR. JAMIESON: Yes, it is, L- E- A -D -S. It stands
17
18
for something that I cWt remember now.
18
19
Q. In any case, it's a program offered by the
19
20
Department of Alcohol and Beverage Control by ABC
20
21
investigators that come out and they train
21
22
employees; is that true?
22
23
A. Yes.
23
24
Q. Approximately when did that occur?
24
25
A. In October of 2007.
25
n.5 Irages 037 LU aJO/
Page 837
Q. Why didn't that occur earlier?
A. Because they had a long waiting list of times
to actually come to the establishment. When I first
spoke to Danielle Schafer who's actually the one that
performed the LEADS training at Fury, they did not have
an opening until, I believe it was January, February of
this year. That's 2008. I actually got her to come to
our establishment in October of 2007.
Q. Danielle Schafer was an employee of the
Department of Alcohol and Beverage Control; is that
right?
A. Yes.
Q. And Danielle Schafer did come to do the
training that was done at Fury, and it was the city
that advised you of that?
A. Yes.
MR. JAMIESON: That's all 1 have of Mr. Gonzalez.
CROSS-EXAMINATION
BY MS, AII.IN:
Q. Mr. Gonzalez, you mentioned a meeting with the
city attorney's office In October 2007?
A Yes.
Q. What was the subject of that meeting?
A. It was to understand the operations of Fury.
Page 838
Q. For the city attorney's office to understand
the operations of Fury?
A. Yeah, the city attorney wanted to — when 1
say the city attorney, the assistant city attorney,
Aaron Harp, wanted to get a better understanding of how
Fury operates and what exactly we are doing in terms of
concept and business plan.
Q. Didn't Mr. Harp raise issues at that meeting
about what appeared to be violations of the use permit
by Fury at that meeting?
A. Aaron Harp, he brought up what — can you say
that one more time? Say that one more time.
MS. AB-IN: Could I have the court reporter read
the question back?
(Record read.)
BY MS. AILIN:
Q About apparent violations of the use permit?
A. Yes, he addressed his concerns.
Q. And do you recall specifically what aspects of
the use permit he was concerned about?
A. He was concerned — at that time based on my
recollection, he was concerned —
MR. JAMIESON: Let me state a belated objection;
that it is irrelevant, and it's outside the scope of
direct. We never even got into a discussion at the city
Precise Reporting Service
714- 647 -9099
FURY REVOCATION HEARING - 4/22/2008
54 (Pages 839 to 842)
Page 841
conference room in the city's office.
MS. AILIN: Move to strike as nonresponsive.
Q. Did the LEAD training — the question was
whether the LEAD training took place before or after the
meeting with Aaron Harp?
A. It took place before. No, it took place in
November, and we met Aaron in October, but it was
already set.
Q. Did you have another meeting with city
personnel at which representatives of the police
department, the fire department and the building
department were present?
A. There was another meeting, and I do not
remember when that was in 2007. 1 don't remember if it
was before the meeting with Aaron Harp or after. I
cannot remember that.
Q. And was Aaron Harp at this other meeting that
you mentioned?
A. Yes, he was.
Q. Was that before or after the LEAD training
took place?
A. That would be before.
Q. The LEAD training took place before the other
meeting?
A. The LEAD training took place In --I believe
Page 842
the LEAD training, If I remember correctly, was November
5th is what 1 believe the date was or November 20th. I
cannot remember. Somewhere in November. We had
scheduled that back in August or July 2007 to have that
date set for I believe, if I remember correctly,
November 201h, or November 5th, somewhere in November.
Q. And I'm sorry. Fm still confused. You said
there was a second meeting with police, fire and
building department representatives?
A. When I talked about in reference to my
testimony with Steven Jamieson, l was talking about
a meeting that we had solely with Aaron Harp. Now
we are talking about an entirely different meeting.
Q. At one of the meetings that you had with
Aaron Harp did you provide copies of Fury's menus?
A. We supplied copies of Fury's menus and copies
of publications for his restaurant.
Q. We have this document that's been admitted as
city's Exhibit 20. Is this a copy of one of the menus
that you provided to the city?
A. That's not a full menu.
Q. Well, there is a handwritten notation on the
first page of it that says full menu. Whose handwriting
is that?
A. It's not mine.
Precise Reporting Service
714 - 647 -9099
Page 839
1
attorney's office between anybody, so to allow the
1
2
cross- examination to go on about what occurred there
2
3
really isn t relevant, and it's beyond the scope of
3
4
direct and has no relevance, 352 issue.
4
5
THE HEARJNG OFFICER: Well, it has relevance to
5
6
me. My concern is being outside the scope of the
6
7
direct. There was a question raised regarding a comment
7
8
in response to one of your questions regarding a meeting
e
9
with Aaron Harp. I believe ifs sufficiently relevant i
9
10
that he should answer that last question
10
11
THE WITNESS: From my recollection I believe the
11
12
issues that he had brought up was A, to make sure that
12
13
our employees had gone through the LEADS training; and
13
14
No. 2, he wanted to have us, I believe, at that meeting
14
15
submit our daily consolidated sales reports showing our
15
16
food and alcohol sales.
16
17
BY MS. AILW:
17
is
Q. There were other city employees at that
18
19
meeting as well, weren't there?
19
20
A. City employees, no.
20
21
Q. David Lepo from the planning department wasn't
21
22
there?
22
23
A. No, he was not. Aaron Harp was the only one
23
24
representing the city, and then he actually had, I
24
25
believe if I'm not mistaken, Rosalinh maybe came in
25
54 (Pages 839 to 842)
Page 841
conference room in the city's office.
MS. AILIN: Move to strike as nonresponsive.
Q. Did the LEAD training — the question was
whether the LEAD training took place before or after the
meeting with Aaron Harp?
A. It took place before. No, it took place in
November, and we met Aaron in October, but it was
already set.
Q. Did you have another meeting with city
personnel at which representatives of the police
department, the fire department and the building
department were present?
A. There was another meeting, and I do not
remember when that was in 2007. 1 don't remember if it
was before the meeting with Aaron Harp or after. I
cannot remember that.
Q. And was Aaron Harp at this other meeting that
you mentioned?
A. Yes, he was.
Q. Was that before or after the LEAD training
took place?
A. That would be before.
Q. The LEAD training took place before the other
meeting?
A. The LEAD training took place In --I believe
Page 842
the LEAD training, If I remember correctly, was November
5th is what 1 believe the date was or November 20th. I
cannot remember. Somewhere in November. We had
scheduled that back in August or July 2007 to have that
date set for I believe, if I remember correctly,
November 201h, or November 5th, somewhere in November.
Q. And I'm sorry. Fm still confused. You said
there was a second meeting with police, fire and
building department representatives?
A. When I talked about in reference to my
testimony with Steven Jamieson, l was talking about
a meeting that we had solely with Aaron Harp. Now
we are talking about an entirely different meeting.
Q. At one of the meetings that you had with
Aaron Harp did you provide copies of Fury's menus?
A. We supplied copies of Fury's menus and copies
of publications for his restaurant.
Q. We have this document that's been admitted as
city's Exhibit 20. Is this a copy of one of the menus
that you provided to the city?
A. That's not a full menu.
Q. Well, there is a handwritten notation on the
first page of it that says full menu. Whose handwriting
is that?
A. It's not mine.
Precise Reporting Service
714 - 647 -9099
Page 840
1
because I had both of my attorneys as well as me and my
1
2
partner Brian Schillizzi and Michael Cho. Actually
2
3
Michael Cho wasn't there, Jason Baker.
3
4
Q. But it's your testimony that Mr. Harp was the
4
5
only city employee at that meeting?
5
6
A. Mr. Harp was the only city employee. I
6
7
believe he might have brought in Rosalinh, but there was
1 7
8
no Dave Lepo or whoever that individual is.
8
9
Q. There was no one there from the police
9
10
department?
10
11
A. At the October meeting, no, there was not.
11
12
Q. No one from the fire department?
12
13
A No.
13
14
Q. No one from the building department?
14
15
A. No.
15
16
Q. The LEAD training that you mentioned that did
16
17
occur, did that occur before or after the October
17
18
meeting with Aaron Harp?
18
19
A. To go back, the meeting that I'm talking about
19
20
with Aaron Harp was the meeting up in the planning.
20
21
That's the meeting I'm reflecting, that I'm talking
21
22
about here today. We met Aaron Harp by ourselves
i 22
23
in reference to — in reference to what I just
23
24
talked about. I'm referencing meeting in the
24
25
planning or in his office — excuse me — in his
25
54 (Pages 839 to 842)
Page 841
conference room in the city's office.
MS. AILIN: Move to strike as nonresponsive.
Q. Did the LEAD training — the question was
whether the LEAD training took place before or after the
meeting with Aaron Harp?
A. It took place before. No, it took place in
November, and we met Aaron in October, but it was
already set.
Q. Did you have another meeting with city
personnel at which representatives of the police
department, the fire department and the building
department were present?
A. There was another meeting, and I do not
remember when that was in 2007. 1 don't remember if it
was before the meeting with Aaron Harp or after. I
cannot remember that.
Q. And was Aaron Harp at this other meeting that
you mentioned?
A. Yes, he was.
Q. Was that before or after the LEAD training
took place?
A. That would be before.
Q. The LEAD training took place before the other
meeting?
A. The LEAD training took place In --I believe
Page 842
the LEAD training, If I remember correctly, was November
5th is what 1 believe the date was or November 20th. I
cannot remember. Somewhere in November. We had
scheduled that back in August or July 2007 to have that
date set for I believe, if I remember correctly,
November 201h, or November 5th, somewhere in November.
Q. And I'm sorry. Fm still confused. You said
there was a second meeting with police, fire and
building department representatives?
A. When I talked about in reference to my
testimony with Steven Jamieson, l was talking about
a meeting that we had solely with Aaron Harp. Now
we are talking about an entirely different meeting.
Q. At one of the meetings that you had with
Aaron Harp did you provide copies of Fury's menus?
A. We supplied copies of Fury's menus and copies
of publications for his restaurant.
Q. We have this document that's been admitted as
city's Exhibit 20. Is this a copy of one of the menus
that you provided to the city?
A. That's not a full menu.
Q. Well, there is a handwritten notation on the
first page of it that says full menu. Whose handwriting
is that?
A. It's not mine.
Precise Reporting Service
714 - 647 -9099
FURY REVOCATION HEARING - 4/22/2008
55 (Pages 843 to 846)
Page 845
not a document that's been identified on the exhibit
list of the city, and on that basis I would object to
it. I don't know what the benefit of it is, but in any
case, I will object to it on the basis that it was not
previously identified as an exhibit by the city. We
have not discussed it as an exhibit, and it was not
included in any of the exhibit lists by the city or in
any of the discussions or correspondence that we have
had to date with respect to exhibits that are included
and to be included in these proceedings.
THE HEARING OFFICER: I understand all that, and 1
also understand that we don't seem to have in any of
these exhibits a complete menu, so rm going to overrule
just simply to ask Mr. Gonzalez whether he even knows
about this or has ever seen it.
THE WITNESS: Yes.
BY MS. AILIN:
Q. And is that the late menu?
A. That is an option for people late at night as
well as our full menu, yes.
MR. JAMIESON: By the way, I suspect in looking at
Mr. Gonzalez to find out if its true or not, but 1
suspect -- since it appears both the city's documents
and Fury's document may be incomplete I suspect, if the
city would like or counsel would like, we can certainly
Page 846
pull what apparently are full copies. I don't know if
it's necessary. 1 think personally even what is there
is a pretty extensive menu, but it seems like maybe
there are other sheets of paper. If you want them,
well go get them.
MS. AILIN: Well, my concern and the disadvantage I
have is that I wasn't involved in the investigation --
MR. JAMIESON: Neither was I.
MS. AILIN: -- that led to this hearing.
MR. JAMIESON: Neither were you.
MS. AILIN: And I can tell you that what we have
here as the city's Exhibits 20 and 21 were represented
to me as copies of menus that were provided by
Mr. Gonzalez at an October 2007 meeting with various
city employees, but I wasn't there.
MR. JAMIESON: And I was not there either. I
wasn't involved at that time. I didn't become involved
until the middle of February. The only thing I know is
that there were representatives of Mr. Gonzalez I think
that submitted copies to the city, so I can't attest to
whatever was there. 1 can only tell you as 1 indicated
1 think that what is there certainly is a very extensive
menu, but in terms of getting other stuff, you don't
seem to have a full copy. Maybe we don't have a full --
I don't know, but well happy to do it if it exists, if
Precise Reporting Service
714- 647 -9099
Page 843
1
Q. Would you recognize Mr. Schillizzi's
1
2
handwriting if you saw it?
2
3
A. I probably could not
3
4
Q. How long were you and Mr. Schillizzi in
4
5
business together?
5
6
A. For roughly one year.
6
7
Q. Is Mr. Schillizzi still involved with Fury?
7
e
A. No, he is not.
8
9
Q. When did he cease to be involved with Fury?
i 9
10
A. He is still on the books as an operator of
10
11
Fury based on the LLC requirements, but he is no longer
11
12
involved in the operation of Fury as of six weeks ago,
12
13
eight weeks ago.
13
14
Q. Is Mr. Schillizzi still in the state of
14
15
California?
15
16
A. No, he is not.
16
17
Q. Do you know where he is?
! 17
18
A. He is in Arizona.
18
19
Q. And we have another menu marked as Exhibit
19
20
City 21 that has a handwritten notation on it, late
1 20
21
menu. Do you recognize that handwriting?
1 21
22
A. No, I do not.
22
23
Q. Is that a copy of the menu that you provided
23
24
to the city?
24
25
A. It's not a full menu.
25
1
Page 844
Q. Is there a full menu and a late menu at Fury?
1
2
A. There is a full menu, and there is a late
2
3
menu, yes.
li 3
4
Q. And what is the difference between the two?
4
5
A. The full menu we offer through the full
5
6
operations of dinner, and that is from — I believe our
6
7
hours of operation are from 5:00 until closing. And the
7
8
late menu is a menu that people that come in late at
8
9
night that want to pick other items from a menu that
9
10
have nothing to do with our full menu, but it would be
10
11
in terms of pizzas, chicken fingers, French fries. We
11
12
just did a side menu to give people more options.
12
13
Q. Does that menu exist anywhere in any of these
13
14
documents that we have seen?
14
15
MR. JAMIESON: How about in Exhibit 25, perhaps?
! 15
16
THE WITNESS: Exhibit 25 of the city or Fury?
16
17
MR. JAMIESON: No, Fury, 22 actually.
17
is
THE WITNESS: I don't know if it does or not.
1 18
19
MR. JAMIESON: That's the only other place —
19
20
THE WITNESS: This is --
20
21
BY MS. AILIN:
21
22
Q. I don't — strike that. Miss Parker just
22
23
handed me something out of her file. Have you seen
23
24
this before?
24
25
MR. JAMIESON: Hold on before you answer. This is
25
55 (Pages 843 to 846)
Page 845
not a document that's been identified on the exhibit
list of the city, and on that basis I would object to
it. I don't know what the benefit of it is, but in any
case, I will object to it on the basis that it was not
previously identified as an exhibit by the city. We
have not discussed it as an exhibit, and it was not
included in any of the exhibit lists by the city or in
any of the discussions or correspondence that we have
had to date with respect to exhibits that are included
and to be included in these proceedings.
THE HEARING OFFICER: I understand all that, and 1
also understand that we don't seem to have in any of
these exhibits a complete menu, so rm going to overrule
just simply to ask Mr. Gonzalez whether he even knows
about this or has ever seen it.
THE WITNESS: Yes.
BY MS. AILIN:
Q. And is that the late menu?
A. That is an option for people late at night as
well as our full menu, yes.
MR. JAMIESON: By the way, I suspect in looking at
Mr. Gonzalez to find out if its true or not, but 1
suspect -- since it appears both the city's documents
and Fury's document may be incomplete I suspect, if the
city would like or counsel would like, we can certainly
Page 846
pull what apparently are full copies. I don't know if
it's necessary. 1 think personally even what is there
is a pretty extensive menu, but it seems like maybe
there are other sheets of paper. If you want them,
well go get them.
MS. AILIN: Well, my concern and the disadvantage I
have is that I wasn't involved in the investigation --
MR. JAMIESON: Neither was I.
MS. AILIN: -- that led to this hearing.
MR. JAMIESON: Neither were you.
MS. AILIN: And I can tell you that what we have
here as the city's Exhibits 20 and 21 were represented
to me as copies of menus that were provided by
Mr. Gonzalez at an October 2007 meeting with various
city employees, but I wasn't there.
MR. JAMIESON: And I was not there either. I
wasn't involved at that time. I didn't become involved
until the middle of February. The only thing I know is
that there were representatives of Mr. Gonzalez I think
that submitted copies to the city, so I can't attest to
whatever was there. 1 can only tell you as 1 indicated
1 think that what is there certainly is a very extensive
menu, but in terms of getting other stuff, you don't
seem to have a full copy. Maybe we don't have a full --
I don't know, but well happy to do it if it exists, if
Precise Reporting Service
714- 647 -9099
FURY REVOCATION HEARING - 4/22/2008
-) o lraycti 04r lU o�u/
Precise Reporting Service
714 - 647 -9099
Page 8471
Page 849!
1
you like.
1
BY MS. AILIN:
2
MS. AILIN: I'll leave it to the hearing officer as
2
Q. Now, when you saw the premises Fury wasn't
3
to whether he feels he needs it.
3
operating there yet, correct?
4
MR. JAMIESON: I mean, we have -- we had the chef
4
A. No.
5
talk about it. It's a pretty extensive menu. 1 would
5
Q. When you fist saw it, it was still Hamburger
6
be advocating at this point, but I think its pretty
6
Mary's?
7
extensive.
7
A. Yes.
8
THE HEARING OFFICER: I have expressed my opinion
8
Q. Did you ever look at the plans for the
9
before in my notes to you that I feel the menu that has
9
Hamburger Mary's layout?
10
been presented is quite an extensive menu. There has
10
A. My partner, Brian Schillizzi, did.
11
been little or no evidence about any stopping of the
11
Q. Would you look at Exhibit 6?
12
menu later on in the evening, that I've heard anybody
12
THE HEARING OFFICER: May I have one, please? 06.
13
saying that they were declined the service of food or
13
MS. AILIN: Yes, C6.
14
that there was no food available, so I don't see any
14
MR- JAMIESON: Let me just make an objection. I
15
point in distributing any more menus. It's what
15
don't know if Mr. Gonzalez actually ever looked at those
16
occurred out there that counts.
16
plans. What he actually answered was that his partner
17
MS. AILIN: I would disagree with that
17
Schillizzi looked at them. So to the extent you're
18
characterization of the evidence. I think that
18
going to ask him about Exhibit 6, he has said he never
19
some of the police reports that have been offered
19
saw it before.
20
reflected a different set of circumstances --
20
MS. AILIN: I understand.
21
THE HEARING OFFICER: That may be, you know,
21
THE WITNESS: So am 1 looking at this one?
22
because I haven't studied them thoroughly yet, and
22
BY MS. AfLIN:
23
that may come out in the course of studying them.
23
Q. Yes, we are looking at the second page of
24
MS. AILIN: That's fine.
24
Exhibit 6, and an this diagram there are different
25
MR. JAMIESON: For purposes of the record, I've
! 25
functions in the building that are shown, correct?
- - - --
-- - -- Page 848'
-
Page 850
1
read them, and I don't think they do.
1
A. Yes.
2
THE HEARING OFFICER: Of course.
2
Q. And there is a table down at the bottom that
3
MS. AILIN: Well, I'm going to propose that we add
3
has a key to how those different functions are
4
this late night menu as Exhibit C 43.
4
indicated, correct?
5
MR. JAMIESON: I'll object on the same basis that I
5
A. Yes.
6
objected to in the beginning.
6
Q. And it shows the number of square feet for
7
THE HEARING OFFICER: Well, I'll overrule, and
7
each of those functions, correct?
8
Mr. Gonzalez recognized it as an adjunct to the normal
8
A. Yes.
9
menu, so it's admissible.
9
Q. It shows the bar area is 1,089 square feel,
10
BY MS. AMIN:
to
correct?
11
Q. Mr. Gonzalez, you testified that the dance
11
A. Yes.
12
floor is less than 10 percent of the area.
12
Q. And it also shows that the net public area
13
MR. JAMIESON: Mischaracterizes his testimony. He
13
allowed is 4,163 square feet, correct?
14
didn't say less than 10 percent. He said less than
14
A. Yes.
15
20 percent.
1s
Q. So the bar area was more than 20 percent of
16
MS. AILIN: I'm sorry.
16
the net public area, correct?
17
Q. You testified that the dance floor is less
17
MR. JAMIESON: Objection; it's irrelevant, lacks
18
than 20 percent of the area of the building that Fury is
18
foundation. I don't know, first of all, whether or not
19
occupying; is that correct?
19
he can testify to this considering he has never seen
20
A. Yes.
20
this document before according to the testimony that we
21
MR. JAMIESON: Actually mischaracterizes his
21
have. Besides that, as indicated, this is apparently a
22
testimony again, so I'll object. He is talking about --
22
floor plan for Hamburger Mary's and not for Fury, and in
23
1 think he said the premises. Anyway, you will ask
23
terms of what the net public area of the bar is or is
24
questions. I apologize.
24
not at that time is not relevant. I don't know what
25
///
25
that concludes anyway. I mean, the document if ifs
Precise Reporting Service
714 - 647 -9099
FURY REVOCATION HEARING - 4/22/2008
n t lrayet5 OD-L LU 0D,11
Page 853
A. They marketed us both Friday and Saturday
night.
Q. And you said that Sienna Entertainment and
Upscale Access were paid $500 a week?
A. Yes.
Q. Is that $500 each?
A. No, $500 total.
Q. What do you mean by they were paid $500 for a
week?
A. They paid for — they would market for
Thursday nights, and they would be compensated $500 flat
fee every Thursday night.
Q. Did you review the materials that Social Group
used in marketing Fury?
MR. JAMIESON: You mean back at the time or right
now?
MS. AILIN: At the time.
Q. Now 1 assume you are not doing any marketing
for Fury.
MR. JAMIESON: No, but the question you asked is
did you review the materials, and that could have meant
now or back then. I just want to make sure.
BY MS. AM:
Q. Did you review materials that Social Group
used in marketing Fury?
Page 854
A. When you say reviewed, they —the majority
would text blast to their own individuals, and then they
would e-mail, and I would purview that information, yes.
Q. So they would include you on the e-mail list?
A. No, I was not.
Q. You didn't see the a -mails before they went
out?
A. I would see -- it was typically the same
e -mail, but the majority of their — the majority —
it's a standard e-mafl that went out every single week
so was I privy to that e-mafl, yes, I had seen that
e -mail.
Q. Did you ever have any disagreements with
Social Group about the accuracy of the information in
those e- mails?
A. In terms of the a -malls, l never had a
conversation with them about that, no.
Q. In terms of what Sienna Entertainment was
doing, if you could turn to Exhibit 12, C 12, and in
particular the second page of C 12, did you ever check
— well, how did Sienna Entertainment do its marketing
of Fury?
A. They would text blast, and they would e-mail
out and if I'm correct, I believe that they would have
a My Space page as well.
Precise Reporting Service
714- 647 -9099
3.51
Page 851
1
admissible speaks for itself, but to have Mr. Gonzalez
1
2
testify as to what this means without any foundation at
2
3
all I think would be inappropriate, and I will make an
3
4
objection on that basis.
4
5
THE HEARING OFFICER: I'm going to overrule the
5
6
objection. My notes indicate Mr. Gonzalez testified
6
7
that the dance floor was something less than 20 percent
7
8
of the total floor area, but that may or may not be true
8
9
also, but in event, there was testimony about the
9
10
configuration of the interior of the restaurant, and if
10
11
this -- 1 don't know whether -- he can take a few
11
12
minutes to study this if you think that would be
12
13
appropriate because this one has not been discussed
13
14
previously, but it seems relevant to those questions
14
15
that you raised, size of the dance floor vis -a -vis the
15
16
balance and so forth.
16
17
MR. JAMIESON: Again, I think it's a lack of
17
18
foundation because we have got Exhibit 6 is what we
18
19
are looking at here --
19
20
THE DARING OFFICER: You got overruled, so let's
20
21
go on.
21
22
MR, JAMIESON: All right. Fine. I'll be quiet.
22
23
BY MS. AILIN:
23
24
Q. When you were modifying the building to turn
24
25
it from Hamburger Mary's to Fury, you did a lot of
25
Page 852
1
redecorating, correct?
1
2
A. My partner, Brian Schillizzi, did all of that,
2
3
yes.
3
4
Q. But you saw the building before that work was
4
5
done and after, correct?
5
6
A. Yes.
6
7
Q. Did the bar area change in size?
7
8
A. No.
8
9
Q. Was the amount of seating in the bar area
9
10
changed?
10
11
A. No.
11
12
Q. Let's talk about the promoters. You have
12
13
testified that Social Group, Sienna Entertainment and
13
14
Upscale Access worked as promoters for Fury, correM?
14
15
A. Yes.
15
16
Q. You said they were paid on a flat fee basis?
16
17
A. Yes.
17
18
Q. How much were they paid?
18
19
A. Social Group was paid for a weekend $3,000,
! 19
20
and Sienna Entertainment/Upscale were paid roughly $500:
20
21
a week
21
22
Q. Now, Social Group was paid $3,000 for a
22
23
weekend?
23
24
A. For a weekend.
24
25
Q. For a weekend. What does that mean?
25
n t lrayet5 OD-L LU 0D,11
Page 853
A. They marketed us both Friday and Saturday
night.
Q. And you said that Sienna Entertainment and
Upscale Access were paid $500 a week?
A. Yes.
Q. Is that $500 each?
A. No, $500 total.
Q. What do you mean by they were paid $500 for a
week?
A. They paid for — they would market for
Thursday nights, and they would be compensated $500 flat
fee every Thursday night.
Q. Did you review the materials that Social Group
used in marketing Fury?
MR. JAMIESON: You mean back at the time or right
now?
MS. AILIN: At the time.
Q. Now 1 assume you are not doing any marketing
for Fury.
MR. JAMIESON: No, but the question you asked is
did you review the materials, and that could have meant
now or back then. I just want to make sure.
BY MS. AM:
Q. Did you review materials that Social Group
used in marketing Fury?
Page 854
A. When you say reviewed, they —the majority
would text blast to their own individuals, and then they
would e-mail, and I would purview that information, yes.
Q. So they would include you on the e-mail list?
A. No, I was not.
Q. You didn't see the a -mails before they went
out?
A. I would see -- it was typically the same
e -mail, but the majority of their — the majority —
it's a standard e-mafl that went out every single week
so was I privy to that e-mafl, yes, I had seen that
e -mail.
Q. Did you ever have any disagreements with
Social Group about the accuracy of the information in
those e- mails?
A. In terms of the a -malls, l never had a
conversation with them about that, no.
Q. In terms of what Sienna Entertainment was
doing, if you could turn to Exhibit 12, C 12, and in
particular the second page of C 12, did you ever check
— well, how did Sienna Entertainment do its marketing
of Fury?
A. They would text blast, and they would e-mail
out and if I'm correct, I believe that they would have
a My Space page as well.
Precise Reporting Service
714- 647 -9099
3.51
FURY REVOCATION HEARING - 4/22/2008
58 (Pages 855 to 858)
Page 857
Q. Which nights?
A. It would rotate. I would either be there on a
Thursday, Saturday or a —just a Saturday. Brian and I
would rotate shifts, and there was always one of the
ow 2996p@oators present every night of operations that
Fury was open, and we would rotate every single week
Q. You didn't stay until closing at night, did
you?
A. I did every single night that I was there.
Q. And Fury closed at two o'clock in the morning,
correct?
A. Correct.
Q. Seven nights a week?
A. Na
Q. How many nights a week?
A. Fury would close Thursday, Friday and
Saturday— It would be completely vacant at 2:09 a.m.
in the morning.
Q. And what about Monday, Wednesday and Thursday?
A. Monday we were closed.
Q. Monday, Tuesday and Wednesday. Monday,
Wednesday, Thursday.
A. Monday Fury — when we first opened was open
for dinner only, and then we had shut down on Mondays,
and then Tuesday, Wednesday we were open for dinner, and
Page 858
Thursday we were open for dinner and live entertainment
as well as Friday and Saturday.
Q. How late was Fury open on Tuesday and
Wednesday?
A. We — it would range. Usually by ten o'clock
we were closed. There would be some times that we would
shut down earlier depending on the traffic of people
that were coming into the establishment.
Q. Mr. Jamieson asked you a number of questions
about a citation for overcrowding.
A. Yes.
Q. You testified that there no criminal filing
with regard to that citation. That was your testimony
at the time, correct?
A. Yes.
Q. What research did you do to determine whether
there had been a criminal filing?
A. f had retained Michael Cho, and Michael Cho
bad represented me on the day of my supposed to be
showing up to court. When Michael Cho arrived at court,
they had no record or findings or any incidents
regarding an overcrowding incident of me at all at Fury.
Q. You testified that trash is picked up at Fury
two to three times a week, correct?
A. It's picked up two to three times a week, yes.
Precise Reporting Service
714 - 647 -9099
Yl
Page 855
1
Q. Did they also -- so they had a My Space page?
1
2
A. 1 believe so.
2
3
Q. Did you ever check the accuracy of the
3
4
information on the My Space page?
j 4
5
A. Did I check the My Space page? No, but my
5
6
partner Brian could have.
6
7
Q. Did he ever talk to you about the information
7
8
on the Sienna Entertainment website about Fury?
8
9
A. Did my partner or did Sienna?
9
10
Q. Your partner.
10
11
A. No.
11
12
Q. Did you do anything to find out what was on
12
13
the Internet about Fury?
13
14
A. I did not monitor what people were posting
14
15
about Fury, no.
15
16
Q. Was there something called Club Eclipse that
16
17
had something to do with Fury at some point?
17
18
A. Club Eclipse was a name that, I believe,
18
19
Upscale Access had prior to ever being involved with
19
20
Fury, and then I had had them change that name out.
20
21
Q. Why did you have them change the name?
21
22
A. Because it had -- we are not a club, so I had
22
23
them take that name out.
23
24
Q. How long did they use Club Eclipse before you
24
25
asked them to change it?
25
-- --
- -- --. �..__ Page 856
i —.--
1
A. I couldn't tell you. I would say when they
1
2
first came aboard. I would be guessing, but by the time
1 2
3
1 had purview of the information, [ had it removed
3
4
immediately. I could not tell you how long.
4
5
Q. When did they first come aboard?
5
6
A. I believe, I want to say August, but
6
7
Brian Schillizzi was the one that actually brought them
7
8
aboard, so I was not involved. My involvement with Fury
8
9
was — I was not was a part of operations until I would
9
10
say September -ish.
10
11
Q. What do you mean by not any part of the
11
12
operations?
12
13
A. 1 was the financial backing of Fury.
13
14
Q. Had you had any prior experience with
14
15
restaurant or bar operations before Fury?
15
16
A. No.
16
17
Q. But you testified that you were able to
17
18
estimate the occupancy inside Fury just by looking
18
19
around?
19
20
A. Not by just looking around. By knowing the
20
21
numbers inside at all times and visualizing those
21
22
numbers.
22
23
Q. And you testified that you were at Fury a
23
24
couple of nights a week?
24
25
A. Yes.
25
58 (Pages 855 to 858)
Page 857
Q. Which nights?
A. It would rotate. I would either be there on a
Thursday, Saturday or a —just a Saturday. Brian and I
would rotate shifts, and there was always one of the
ow 2996p@oators present every night of operations that
Fury was open, and we would rotate every single week
Q. You didn't stay until closing at night, did
you?
A. I did every single night that I was there.
Q. And Fury closed at two o'clock in the morning,
correct?
A. Correct.
Q. Seven nights a week?
A. Na
Q. How many nights a week?
A. Fury would close Thursday, Friday and
Saturday— It would be completely vacant at 2:09 a.m.
in the morning.
Q. And what about Monday, Wednesday and Thursday?
A. Monday we were closed.
Q. Monday, Tuesday and Wednesday. Monday,
Wednesday, Thursday.
A. Monday Fury — when we first opened was open
for dinner only, and then we had shut down on Mondays,
and then Tuesday, Wednesday we were open for dinner, and
Page 858
Thursday we were open for dinner and live entertainment
as well as Friday and Saturday.
Q. How late was Fury open on Tuesday and
Wednesday?
A. We — it would range. Usually by ten o'clock
we were closed. There would be some times that we would
shut down earlier depending on the traffic of people
that were coming into the establishment.
Q. Mr. Jamieson asked you a number of questions
about a citation for overcrowding.
A. Yes.
Q. You testified that there no criminal filing
with regard to that citation. That was your testimony
at the time, correct?
A. Yes.
Q. What research did you do to determine whether
there had been a criminal filing?
A. f had retained Michael Cho, and Michael Cho
bad represented me on the day of my supposed to be
showing up to court. When Michael Cho arrived at court,
they had no record or findings or any incidents
regarding an overcrowding incident of me at all at Fury.
Q. You testified that trash is picked up at Fury
two to three times a week, correct?
A. It's picked up two to three times a week, yes.
Precise Reporting Service
714 - 647 -9099
Yl
FURY REVOCATION HEARING - 4/22/2008
done.
5y (rages ODD l w ooz/
Page 861
(Recess taken.)
REDIRECT EXAMINATION
BY MR. JAMIESON:
Q. Mr. Gonzales when did you first begin working
with the buyer with respect to selling Fury and dealing
with these numbers from last year?
A. February.
Q. And what numbers have you shared with the
buyer?
A. 1 had showed him numbers and the projections
of 2007.
Q. By the way, did those projections include food
and distribution of alcohol or both?
A. Yes.
Q. Now, was the principal purpose of Fury to
provide food?
A. Yes.
Q. Was the principal purpose of Fury to provide
entertainment?
A. No.
Q. Was the principal purpose of Fury to provide
dancing?
A. No.
Page 862
Q. Was the principal purpose of Fury to serve
alcohol?
A. No.
MR. JAMIESON: Nothing further. Thank you.
RECROSS- EXAMINATION
BY MS. AILIN:
Q. Mr. Gonzalez, we have heard a number of
witnesses in this case talk about bottle service at
Fury. What is your understanding of the term "bottle
service "?
A. My understanding of the term "bottle service"
is a client coming and purchasing a bottle of alcohol
for consumption.
Q. And was bottle service provided at Fury?
A. Yes.
Q. On the YouTube video we heard a woman
identified as one of the bottle service hostesses say
that the well vodka for bottle service was Gray Goose;
do you recall that?
MR. JAMIESON: That question may be vague and
ambiguous in the context of bottle service and well
service. I don't know.
THE WITNESS: Gray Goose is not our well, no.
Precise Reporting Service
714- 647 -9099
c
Page 859
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Q. What days?
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A. I believe it is picked up on Sunday —it's
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picked up on Saturdays, I believe, Sundays and then one
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time during the week.
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Q. What day during the week?
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A. I'm not 100 percent positive because that's
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one of the things that Brian did handle, but I know when
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we had first opened it was picked up once a week, and we i
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found that the dumpsters were too packed, so then we had
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multiple pickups, and I could not testify to the actual
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day, but I know that Brian handled that situation.
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Q. So Brian arranged for the trash pickup, but
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you were able to testify here today about how the trash
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gets handled?
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15
A. Yes.
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Q. And Brian handled the trash pickup, but you
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were able to testify that the dumpster was left out of
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the trash enclosure when the trash was going to be
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picked up?
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A. Yes.
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Q. Did you ever check on city regulations as to
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whether city regulations allow you to leave the trash
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dumpster outside the enclosure when trash was going to
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be picked up?
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A. Brian handled that
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Page 860
1
Q. Now, Exhibit F 20 —
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A. Is that Fury's?
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3
Q. Exhibit F 26. Exhibit F 26 only covers the
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4
month of January 2008. This is one of the daily
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5
consolidated systems sales details, correct?
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A. Monthly, yes.
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Q. Only covers January?
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A. Yes.
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Q. We had some brief discussion off the record
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about the fact that you are in the process of selling
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the business; is that correct?
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A. Correct.
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Q. And you are about to sell the business, but
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you haven't done the necessary work to produce a page
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similar to Exhibit 26 for February of 2008?
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A. Correct.
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Q. And you haven't done the work necessary to
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produce a page similar to Exhibit 26 for March 2008?
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A. Correct.
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Q. But you are on the verge of selling the
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business?
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A. Correct.
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MS. AILIN: I have no further questions.
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MR. JAMIESON: Can we take a minute break? Ijust !
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want to see if there is anything else, and I think I am
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done.
5y (rages ODD l w ooz/
Page 861
(Recess taken.)
REDIRECT EXAMINATION
BY MR. JAMIESON:
Q. Mr. Gonzales when did you first begin working
with the buyer with respect to selling Fury and dealing
with these numbers from last year?
A. February.
Q. And what numbers have you shared with the
buyer?
A. 1 had showed him numbers and the projections
of 2007.
Q. By the way, did those projections include food
and distribution of alcohol or both?
A. Yes.
Q. Now, was the principal purpose of Fury to
provide food?
A. Yes.
Q. Was the principal purpose of Fury to provide
entertainment?
A. No.
Q. Was the principal purpose of Fury to provide
dancing?
A. No.
Page 862
Q. Was the principal purpose of Fury to serve
alcohol?
A. No.
MR. JAMIESON: Nothing further. Thank you.
RECROSS- EXAMINATION
BY MS. AILIN:
Q. Mr. Gonzalez, we have heard a number of
witnesses in this case talk about bottle service at
Fury. What is your understanding of the term "bottle
service "?
A. My understanding of the term "bottle service"
is a client coming and purchasing a bottle of alcohol
for consumption.
Q. And was bottle service provided at Fury?
A. Yes.
Q. On the YouTube video we heard a woman
identified as one of the bottle service hostesses say
that the well vodka for bottle service was Gray Goose;
do you recall that?
MR. JAMIESON: That question may be vague and
ambiguous in the context of bottle service and well
service. I don't know.
THE WITNESS: Gray Goose is not our well, no.
Precise Reporting Service
714- 647 -9099
c
FURY REVOCATION HEARING - 4/22/2008
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Page 864
A. For any type of liquor? You could purchase
Crystal for $600.
MS. AILIN: I have no further questions.
MR. JAMIESON: I have a couple.
FURTHER REDIRECT EXAMINATION
BY MR. JAMIESON;
Q. Mr. Gonzalez, with respect to this bottle
service, is bottle service — is the benefit that bottle
service provides the patron the cost, in other words,
comparing that against individual drinks?
A. It is pretty much equal.
Q. And the people that are ordering the bottles,
they are not ordering a bottle for themselves, are they?
A. No.
Q. Was the bottle service in place the way you
described it after 10:30, et cetera in January of'08?
A. It was, yes.
Q. And the numbers that we looked at in Exhibit
26 reflect food service and alcohol at all times, right?
A. It's reflected under liquor.
MR. JAMIESON: Thank you. Nothing further.
MS. AILIN: I have nothing further.
THE HEARING OFFICER: You have more witnesses?
MR. JAMIESON: I do not.
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Page 865
THE WITNESS: I can go again.
MR. JAMIESON: Would you like to?
THE HEARING OFFICER: Off the record now, please.
(Discussion ensued off the record.)
(Proceedings ended at 4:18 p.m.)
Page 866
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
1, NANCI G GRUBE, a Certified Shorthand
Reporter for the County of Los Angeles and the State of
California, do hereby certify:
That said proceedings was taken before me at the
time and place therein set forth, and was taken down by me
in shorthand and thereafter transcribed into typewriting
under my direction and supervision; that the said
transcript is a true record of the proccedings;
I further certify that I am neither counsel for
nor related to any parry to said action, nor in anywise
interested in the outcome thereof.
IN WITNESS WHEREOF, I have subscribed my time
this I Ith day of May, 2006.
Certified Shorthand Reporter
for the State of California
Precise Reporting Service
714 - 647 -9099
yy
Page 863
1
BY MS. AILIN:
1
2
Q. What is your well?
2
3
A. I would probably say maybe Absolute.
3
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Q. And what would the price be for Absolute for
4
5
well service?
! 5
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A. $275.
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Q. And on a Friday or Saturday night bow many
i 7
8
tables were devoted for bottle service?
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A. Probably — we kept eight to ten open for
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10
dinner, so I would say approximately 20.
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Q. Soon Friday and Saturday night you had 20
11
12
tables devoted to bottle service, and you kept 10 tables
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open for dinner?
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A. After 10:30, yes.
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Q. After 10:30. And you're still going to assert
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that the principal purpose of Fury was not to sell
16
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alcohol?
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A. The purpose was for food.
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Q. How many nights a week did Fury offer bottle
j 19
20
service?
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A. Two nights.
21
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Q. Just Friday and Saturday?
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A. Yes.
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Q. What was the highest price that Fury charged
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for bottle service on any type of liquor?
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Page 864
A. For any type of liquor? You could purchase
Crystal for $600.
MS. AILIN: I have no further questions.
MR. JAMIESON: I have a couple.
FURTHER REDIRECT EXAMINATION
BY MR. JAMIESON;
Q. Mr. Gonzalez, with respect to this bottle
service, is bottle service — is the benefit that bottle
service provides the patron the cost, in other words,
comparing that against individual drinks?
A. It is pretty much equal.
Q. And the people that are ordering the bottles,
they are not ordering a bottle for themselves, are they?
A. No.
Q. Was the bottle service in place the way you
described it after 10:30, et cetera in January of'08?
A. It was, yes.
Q. And the numbers that we looked at in Exhibit
26 reflect food service and alcohol at all times, right?
A. It's reflected under liquor.
MR. JAMIESON: Thank you. Nothing further.
MS. AILIN: I have nothing further.
THE HEARING OFFICER: You have more witnesses?
MR. JAMIESON: I do not.
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Page 865
THE WITNESS: I can go again.
MR. JAMIESON: Would you like to?
THE HEARING OFFICER: Off the record now, please.
(Discussion ensued off the record.)
(Proceedings ended at 4:18 p.m.)
Page 866
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
1, NANCI G GRUBE, a Certified Shorthand
Reporter for the County of Los Angeles and the State of
California, do hereby certify:
That said proceedings was taken before me at the
time and place therein set forth, and was taken down by me
in shorthand and thereafter transcribed into typewriting
under my direction and supervision; that the said
transcript is a true record of the proccedings;
I further certify that I am neither counsel for
nor related to any parry to said action, nor in anywise
interested in the outcome thereof.
IN WITNESS WHEREOF, I have subscribed my time
this I Ith day of May, 2006.
Certified Shorthand Reporter
for the State of California
Precise Reporting Service
714 - 647 -9099
yy