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  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview 
						
                                
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                                KATZOFF & RIGGS LLP

ANN RANKIN (SBN 83690)
TERRY WILKENS (SBN 118469)

Law Offices of Ann Rankin ELECTRONICALLY
3911 Harrison Street FILED
Oakland, CA 94611 Superior Court of California,
Tel.: (S10) 653-8886 County of San Francisco
Fax: (510) 653-8889 SEP 17 2014
Clerk of the Court
KENNETH S. KATZOFF (SBN 103490) eee en epuly Blerk
ROBERT R. RIGGS (SBN 107684}
NATHAN L. COPPERNOLL (SBN 289839)
Katzoff & Riggs LLP
1500 Park Ave #300
Emeryville, CA 94608
Tel: (510) 597-1990
Fax: (510) 597-0295
Attorneys for Plaintiff BEACON
RESIDENTIAL COMMUNITY
ASSOCIATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL ) Case No. CGC 08-478453
COMMUNITY ASSOCIATION, )

) OBJECTIONS OF BEACON

Plaintiff, ) RESIDENTIAL COMMUNITY
) ASSOCIATION TO HKS, INCZS
vs. ) REQUESTS TO TAKE JUDICIAL

) NOTICE; SUPPORTING
CATELLUS THIRD AND KING LLC, et) MEMORANDUM OF POINTS AND
al., } AUTHORITIES

Defendants. ) Date: Sept. 30, 2014

) Time: 9:00 a.m.

) Dept.: 304

) Judge: Hon. Curtis E. A. Karnow

Plaintiff BEACON RESIDENTIAL COMMUNITY ASSOCIATION (“Plaintiff”)
objects to Defendant HKS Inc.’s Request for Judicial Notice in support of its motion

entitled “Motion to Strike Portions of the Third Amended Complaint” on the following

I

OBJECTIONS OF BEACON RESIDENTIAL COMMUNITY ASSOCIATION TO HKS’S REQUESTS TO TAKE
JUDICIAL NOTICE; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIESKATZOFF & RIGGS LLP

grounds:

1. It is not clear from the Request as to exactly what, in the papers attached to
the Request, the Court is asked to take judicial notice. Consequently, Plaintiff is unable
to prepare to meet the request. HKS declines to specify what, out of the items it requests
Judicial notice, it wants the court to take judicial notice. Apparently, HKS hopes that the
Court will somehow fish through the papers to find something to indicate HKS’s contentions
regarding Plaintiff's Complaint are well-founded. This is unfair to Plaintiff, who should not
be required to speculate. In and of itself, this requires denial of the Request.

2. The matters of which judicial notice is sought are irrelevant to this case.
These matters ~ to the extent that they can be understood at all — consist of arguments made
by counsel in opposing a motion for summary adjudication, long after Plaintiff's Complaint
was filed. They are not evidence that Plaintiff's Complaint contained spurious matter, and
are therefore irrelevant. Arguments of counsel inherently are not evidence and cannot bind
Plaintiff. Noticing any argument of counsel introduces huge collateral issues, necessitates
an undue consumption of time, and creates substantial danger of confusing the issues.

3. The matters of which judicial notice is sought should also be excluded under
the provisions of Evidence Code section 352 on the grounds that their probative value, if
any, is substantially outweighed by the probability that its admission will necessitate an
undue consumption of time and create substantial danger of confusing the issues.

4. The matters of which judicial notice are sought contain inadmissible
hearsay statements, the truth of which HKS improperly asks this Court to take judicial

notice. Indeed, HKS even asks the Court to notice hearsay statements made by the Court,

2

OBJECTIONS OF BEACON RESIDENTIAL COMMUNITY ASSOCIATION TO HKS’S REQUESTS TO TAKE
JUDICIAL NOTICE; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIESreferencing other documents that HKS never requested the Court to notice. Therefore,
the Court should refuse HKS’s request to take judicial notice.

3 Dated: September 17, 2014.

4 LAW OFFICES OF ANN RANKIN
KATZOFF & RIGGS

6 /s/ Robert R. Riggs
By:
7 Robert R. Riggs

KATZOFF & RIGGS LLP

3

OBJECTIONS OF BEACON RESIDENTIAL COMMUNITY ASSOCIATION TO HKS’S REQUESTS TO TAKE
JUDICIAL NOTICE; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIESKATZOFF & RIGGS LLP

ARGUMENT

A. The Matters As to Which Judicial Notice Is Request are Inadmissible and
Irrelevant.

The three matters of which HKS, in its September 3, 2014 Request for Judicial
Notice," asks the court to take judicial notice are irrelevant. To be given judicial notice,
the matter must be relevant to the case. (Western States Petroleum Assn. v. Superior
Court (1995) 9 Cal App.4" 559, 574-576; Mangini v. R.J. Reynolds Tobacco Co. (1994)
7 Cal.App.4" 1057, 1063-1065.) HKS requests the court to take judicial notice of ()
Plaintiff's Opposition to Mission Place LLC’s Motion for Summary Adjudication on
Eighth cause of action, filed on or about December 3, 2012, (2) Plaintiff’s Opposition to
Catellus’ Motion for Summary Adjudication on Eighth filed on or about December 5,
2012, and (3) Notice of Entry of Order Denying Motion for Summary Adjudication of
Mission Place, LLC, filed June 14, 2013. (See HKS’s September 3, 2014 Request for
Judicial Notice, p. 2:7-13.) None of these documents contain information relevant to
SOM and HKS’s motions, renewals, or amended motions.

While unclear, HKS apparently contends that arguments made by Plaintiff's
counsel as to factual issues for trial, or the Court’s rulings on a motion for summary
adjudication, constitute some form of evidence that can be used against Plaintiff ~ i.e.

judicial admissions. Any such arguments in oppositions, however, cannot be admissions

* To the extent it has not already been superseded and withdrawn, HKS’s prior August 27,
2014 Request for Judicial Notice cannot satisfy section 437(b) because it merely seeks to join
SOM’s Renewed Motion to Strike (which itself has been superseded and withdrawn).
Moreover, SOM’s Renewed Motion to Strike and supporting memorandum contain no
mention of the three items of which HKS seeks the court to take judicial notice.

4

OBJECTIONS OF BEACON RESIDENTIAL COMMUNITY ASSOCIATION TO HKS’S REQUESTS TO TAKE
JUDICIAL NOTICE; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIESKATZOFF & RIGGS LLP

because they are not pleadings. (See Myers v. Trendwest Resorts, Inc. (2009) 178
Cal App.4" 735, 746-747 (finding that neither a motion for summary judgment nor its
accompanying statement of undisputed facts constitute “pleadings” under Code of Civil
Procedure section 422.10 and thus are not documents from which a judicial admission
may be extracted.) Also, “[s]tatements by counsel in argument (or otherwise) are not
evidence and, unless in the form of a stipulation or admission, are not binding on the
client.” (Haves v. Hunt (1962) 208 Cal.App.2d 331, 335.)

The Court’s order denying Mission Place’s motion for summary adjudication is
even less relevant. It cannot be an admission because the Court wrote the order, not
Plaintiff or even Plaintiff's counsel. Nor can the Court’s order constitute any form of
collateral estoppel or res judicata -- Plaintiff successfully opposed Mission Place’s motion
for summary adjudication, leaving the issue for trial. Mission Place continues to furiously
litigate against any and all claims against it. It appears that HKS requests the court to
take judicial notice of its own order because “evidentiary submissions made and
deposition transcripts provided” were “referenced in the order denying the motion for
summary adjudication by Mission Place.” it is hard to come up with a better example of
inadmissible hearsay that should not be judicially noticed. (See Osborn v. Irwin
Memorial Blood Bank (1992) 5 Cal. App.4" 234, 261, n. 5 (where matter sought to be
noticed is hearsay and not subject to any exception to the hearsay rule, judicial notice of
the matter may be denied).) In any event, the Court was never properly requested to take
judicial notice of these vague “evidentiary submissions made and deposition transcripts

provided.” (See California Rules of Court, rales 1.1306(c), 3.1113(D.)

5

OBJECTIONS OF BEACON RESIDENTIAL COMMUNITY ASSOCIATION TO HKS’S REQUESTS TO TAKE
JUDICIAL NOTICE; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES1 CONCLUSION

2 The requests to take judicial notice by Defendant HKS, Inc. must be denied.
3 Dated: September 17, 2014.

4 LAW OFFICES OF ANN RANKIN
KATZOFF & RIGGS

6 /s/ Robert R. Riggs
By:
7 Robert R. Riggs

8 Attorneys for BEACON RESIDENTIAL
COMMUNITY ASSOCIATION

KATZOFF & RIGGS LLP

6

OBJECTIONS OF BEACON RESIDENTIAL COMMUNITY ASSOCIATION TO HKS’S REQUESTS TO TAKE
JUDICIAL NOTICE; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES