Order: BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al

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                                Steven H. Schwartz, Esq., SBN 94637
Noel E. Macaulay, Esq., SBN 121695
SCHWARTZ & JANZEN, LLP

12100 Wilshire Boulevard, Suite 1125
Los Angeles, CA 90025 7117
Telephone: 310/979 4090
Facsimile: 310/207 3344

Attorneys for Cross Defendant, HKS, INC, individually and dba HKS ARCHITECTS, INC.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY
ASSOCIATION,

Plaintiff,
vs.

CATELLUS THIRD AND KING LLC; CATELLUS
DEVELOPMENT CORPORATION; CATELLUS
COMMERCIAL DEVELOPMENT CORP.; CATELLUS
OPERATING LIMITED PARTNERSHIP; CATELLUS
URBAN DEVELOPMENT CORPORATION; THIRD
AND KING INVESTORS LLC; PROLOGIS; MISSION
PLACE LLC; MISSION PLACE MEZZANINE LLC;
MISSION PLACE MEZZ HOLDINGS LLC; MISSION
PLACE PARTNERS LLC; CENTURION REAL
ESTATE INVESTORS IV, LLC; CENTURION REAL
ESTTE PARTNERS, LLC; CENTURION PARTNERS
LLC; WEBCOR CONSTRUCTION, INC.; WEBCOR
BUILDERS, INC.; WEBCOR CONSTRUCTION, INC.,
individually and doing business as WEBCOR
BUILDERS; WEBCOR CONSTRUCTION LP
individually and doing business as WEBCOR
BUILDERS; SKIDMORE OWINGS & MERRILL LLP;
HKS, INC.; HKS ARCHITECTS, INC.; HKS, INC.,
individually and doing business as HKS.
ARCHITECTS, INC. and DOES 1 through 200,

Defendants.

ELECTRONICALLY

FILED

Superior Court of Calif

wnia,

County of San Francisco

JUL 25 2014
Clerk of the Court

BY: VANESSA WU
Deput)

CASE NO. CGC 08 478453

[Complaint Filed: August 8, 2009]

EXHIBITS 4, 5,6,7 AND 8 TO REQUEST
TO TAKE JUDICIAL NOTICE IN
SUPPORT OF HKS, INC.,
INDIVIDUALLY AND DBA HKS
ARCHITECTS, INC.’S OPPOSITION TO
MISSION PLACE’S “MOTION TO
ENFORCE THE COURT'S JANUARY 5,
2014 ORDER GRANTING MISSION
PLACE’S MOTION FOR SUMMARY
ADJUDICATION”

DATE: August 6, 2014

TIME: 10:30 a.m.

DEPT: 303

JUDGE: Hon. Richard A. Kramer

EXHIBITS 4, 5, 6, 7 AND 8 TO REQUEST TO TAKE JUDICIAL NOTICE IN SUPPORT OF HKS, INC., INDIVIDUALLY
AND DBA HKS ARCHITECTS, INC.’S OPPOSITION TO MISSION PLACE’S “MOTION TO ENFORCE THE COURT'S
JANUARY 5, 2014 ORDER GRANTING MISSION PLACE’S MOTION FOR SUMMARY ADJUDICATION

ClerkEXHIBIT 4

TO REQUEST TO TAKE JUDICIAL NOTICE IN SUPPORT OF HKS, INC., INDIVIDUALLY AND
DBA HKS ARCHITECTS, INC.’S OPPOSITION TO MISSION PLACE’S “MOTION TO ENFORCE
THE COURT'S JANUARY 5, 2014 ORDER GRANTING MISSION PLACE’S MOTION FOR
SUMMARY ADJUDICATION”Exhibit 4

Steven H. Schwartz, Esq., SBN 94637
Noel E. Macaulay, Esq., SBN 121695
SCHWARTZ & JANZEN, LLP

12100 Wilshire Boulevard, Suite 1125
Los Angeles, CA 90025-7117
Telephone: 310/979-4090
Facsimile: 310/207-3344

Attorneys for Defendant, HKS, INC, individually and dba HKS ARCHITECTS, INC.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO
BEACON RESIDENTIAL COMMUNITY CASE NO. CGC-08-478453
ASSOCIATION,
[Complaint Filed: August 8, 2008}
Plaintiff,

VS.

COMMERCIAL DEVELOPMENT CORP.; CATELLUS | OPPOSITION TO MOTION FOR
OPERATING LIMITED PARTNERSHIP; CATELLUS | SUMMARY ADJUDICATION
URBAN DEVELOPMENT CORPORATION; THIRD
AND KING INVESTORS LLC; PROLOGIS; MISSION | DATE: March 3, 2011
PLACE LLC; MISSION PLACE MEZZANINE LLC;
MISSION PLACE MEZZ HOLDINGS LLC; MISSION | TIME: 9:30 a.m.
PLACE PARTNERS LLC; CENTURION REAL
ESTATE INVESTORS IV, LLC; CENTURION REAL. | DEPT: 304
ESTATE PARTNERS, LLC; CENTURION
PARTNERS LLC; WEBCOR CONSTRUCTION, INC.;
WEBCOR BUILDERS, INC.; WEBCOR

_ CONSTRUCTION, INC., individually and doing
business as WEBCOR BUILDERS; WEBCOR
CONSTRUCTION LP individually and doing business
as WEBCOR BUILDERS; SKIDMORE OWINGS &
MERRILL LLP; HKS, INC.; HKS ARCHITECTS, INC.;
HKS, INC., individually and doing business as HKS
ARCHITECTS, INC. and DOES 1 through 200,

Defendants.

HKS, INC. INDIVIDUALLY AND DBA
CATELLUS THIRD AND KING LLC; CATELLUS HKS ARCHITECTS, INC.’S NOTICE OF
DEVELOPMENT CORPORATION; CATELLUS ERRATA AND FILING OF AMENDED

HKS, INC. INDIVIDUALLY AND DBA HKS ARCHITECTS, INC.’S NOTICE OF ERRATA AND FILING OF AMENDED —

OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION

Notice of ErratayHKS, INC., individually and dba HKS Architects, Inc. hereby files the instant Notice of Errata, with
its amended opposition to the motion for summary adjudication attached. The amended opposition differs

from that originally filed in the following particulars:

1. A Table of Authorities, which was erroneously not included with the original opposition,

is now included.

2. Through inadvertence, an earlier draft of the opposition was served and filed on
February 17, 2014, rather than the final version. The amended opposition is the final
version, which corrects various typographical errors.

The amended opposition contains no substantive changes of any kind. There are no new

arguments or authorities presented.

DATED: February 22, 2014 SCHWARTZ & JANZEN, LLP

Sx SCHWARTZ

NOEL E:MACAULAY
Attomeys for Defendant, HKS, INC.

HKS, INC. INDIVIDUALLY AND DBA HKS ARCHITECTS, INC.’S NOTICE OF ERRATA AND FILING OF AMENDED
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION

Notice of Errat

1Steven H. Schwartz, Esq., SBN 94637
Noel E. Macaulay, Esq., SBN 121695
SCHWARTZ & JANZEN, LLP

12100 Wilshire Boulevard, Suite 1125
Los Angeles, CA 90025-7117
Telephone: 310/979-4090
Facsimile: 310/207-3344

Attorneys for Defendant, HKS, INC, individually and dba

HKS ARCHITECTS

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN
BEACON RESIDENTIAL COMMUNITY
ASSOCIATION,
Plaintiff,

vs.

CATELLUS THIRD AND KING LLC; CATELLUS
DEVELOPMENT CORPORATION; CATELLUS
COMMERCIAL DEVELOPMENT CORP.; CATELLUS
OPERATING LIMITED PARTNERSHIP; CATELLUS
URBAN DEVELOPMENT CORPORATION; THIRD
AND KING INVESTORS LLC; PROLOGIS; MISSION
PLACE LLC; MISSION PLACE MEZZANINE LLC;
MISSION PLACE MEZZ HOLDINGS LLC; MISSION
PLACE PARTNERS LLC; CENTURION REAL
ESTATE INVESTORS iV, LLC; CENTURION REAL
ESTATE PARTNERS, LLC; CENTURION
PARTNERS LLC; WEBCOR CONSTRUCTION, INC.;
WEBCOR BUILDERS, INC.; WEBCOR
CONSTRUCTION, INC., individually and doing
business as WEBCOR BUILDERS; WEBCOR
CONSTRUCTION LP individually and doing business
as WEBCOR BUILDERS; SKIDMORE OWINGS &
MERRILL LLP: HKS, INC.; HKS ARCHITECTS, INC.;
HKS, INC., individually and doing business as HKS
ARCHITECTS, INC. and DOES 1 through 200,

Defendants.

FRANCISCO

CASE NO. CGC-08-478453

[Complaint Filed: August 8, 2008]

HKS, INC.’S OPPOSITION TO “MISSION
PLACE LLC AND AFFILIATES” MOTION
FOR SUMMARY ADJUDICATION OF
ISSUES; DECLARATIONS OF JACK B.
PRICE, JR. AND NOEL E., MACAULAY
IN OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION

[(1) HKS, Inc.'s Response To “Mission
Place LLC And Affiliates” Separate
Statement Of Undisputed Material Facts
(2) HKS' Separate Statement of
Disputed Material Facts in Opposition to
Motion for Summary Adjudication, (3)
Objections to Declaration of John C.
Tahjian and (4) Objections to Declaration
of Steven Cvitanovic concurrently filed
herewith]

DATE: March 3, 2041
TIME: 9:30 a.m.

DEPT: 304

HKS, INC.’S OPPOSITION TO “MISSION PLACE LLC AND AFFILIATES” MOTION FOR SUMMARY ADJUDICATION oF
ISSUES; DECLARATION OF JACK B. PRICE, JR. AND NOEL E, MACAULAY IN OPPOSITION TO MOTION FOR

SUMMARY ADJUDICATION
Opposition to Motion for Summary Adjudication - !.OD wm YA nH Fw

10

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TABLE OF CONTENTS Page(s)

INTRODUCTION . 0. eee ene eee 2
STATEMENT OF FACTS ..0 0.0... cece eee eee 3
A. Background 2.0... ee eee 3
B The HKS Architecture Agreement and the Parties to the Same. . 3
c. The indemnity Provision in the Architectural Agreement ....... 4
D The Purported Assignment by Third and King Investors, LLC to

Mission Place, LLC .. 0... eee ee eee 5
The Purported “Consent and Agreement ...........----0055 5
HKS intent and Understanding of the Consent and

Agreement oe eet eens 6
Any Damages for Which Cross-Complainants Might Be Liable Did
not Arise. Out of Any Misconduct, Breach of the Architectural
Agreement or Negligent Act, Error or Omission on the Part of Any
HKS Entity 00000 cette eee 6
To the Extent that Cross-Complainants Have Any Liability, Such
Was Caused by the Active, Passive, or Concurrent
Negligence/Fault of the Owner, or Those for Which it or Its
Predessor Were Liable 2... 6... eee ee 7

THE “MISSION PLACE RELATED PARTIES AND AFFILIATES” HAVE
FAILED TO SUPPORT THEIR ASSERTIONS BY ANY COMPETENT
EVIDENCE 22... ett eee 7

Page i

Table of Contents/Table of Authoritiesom DDH BB WH

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1

Vi.

THE MOTION FOR SUMMARY ADJUDICATION OF ISSUES IS
PREMATURE AND ALSO OUGHT BE CONTINUED TO ALLOW
NECESSARY DISCOVERY TO TAKE PLACE .........-....000005 7
A. The Motion for Summary Adjudication is Improper and
Premature 00. eee 7
B. The Motion for Summary Adjudication Ought Be Continued To
Allow Necessary Discovery To Take Place ................. 8

ANY ASSIGNMENT TO THE “MISSION PLACE RELATED PARTIES
AND AFFILIATES” WAS INVALID, INEFFECTIVE AND DID NOT
CONVEY ANY INDEMNITY RIGHTS OR DEFENSE

OBLIGATIONS 20... cette eee 10
A. There is No Evidence that of What Rights, If Any, Assignor Had to
ASSIGN oo ete eee 10

B. The HKS Entity Which Was The Party to the Architectural
Agreement and Arguably Bound By the Same Was Not the Subject

of the Assignment and Did Not Consent to the Same ........ 41
Cc. The Assignment is Invalid and Ineffective ................. 12
D. The “Assignment” Does Not Extend to Indemnity Claims... ... 12

MISSION PLACE HAS NOT MET {TS BURDEN OF DEMONSTRATING
THAT THE INDEMNITY PROVISION (1) APPLIES AND (2)
ENCOMPASSES A DEFENSE OBLIGATION; ALTERNATIVELY,
TRIABLE ISSUES OF MATERIAL FACT EXIST IN THAT

REGARD 101 tee tenets 13

Page ii

Table of Contents/Table of AuthoritiesoD eNO BH NY He

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Vil.

Vil

A. The Language of the Indemnity Provision Does Not Include, in its
Terms, Structure, Form and intent, An Obligation to Defend Prior to
Trial cece eee 13

B. Cross-Complainants Have Not Met Their Burden of Demonstrating
That Any Losses Resulted From Misconduct or Negligent Acts,
Errors or Omissions on the Part of Cross-Defendant's Part, on the
Part of Those for Which It Was Responsible; Alternatively,

Countervailing Evidence Creates Triable Issues of Material

Cc. Cross-Compiainants Have Not Met Their Burden of Demonstrating
That Any Losses To Which They Are Exposed Did not Arise From
Their Active, Passive, Or Concurrent Negligence, Or of Those
From Which They Took An Assignment, or Those For Which They
Were Responsible; Alternatively, Countervailing Evidence Creates

Triable Issues of Material Fact .....00.0.0.. 00... ce eee eee 14

GIVEN THE LANGUAGE IN THE INDEMNITY PROVISION, NEITHER
CRAWFORD NOR UDC SUPPORT SUMMARY ADJUDICATION IN

CROSS-COMPLAINANTS’ FAVOR ... 2.060. 15
A. Crawford 2.000 eens 15
B. UDC-Universal Development .... 0.0.00. 16

CROSS-COMPLAINANTS HAVE NOT ESTABLISHED DAMAGES AND
THEIR DISCOVERY RESPONSES CREATE TRIABLE ISSUE OF
MATERIAL FACT IN THAT REGARD .. 0.00.0. e eee ee 17

Page iii

Tabie of Contents/Table of AuthoritiesCom IN DA BB WN om

2

Cases TABLE OF AUTHORITIES

Bramalea v. Reliable Interiors, Inc.

(2004) 119 Cal. App. 4th 468, 472-475 2.6.0... cee eee

Cockerell v. Title Ins. & Trust Co .

(1954) 42 Cal.2d 284, 286, 291-293 ............. eee eee eee

Commercial Discount Co. v. Cowan

(1941) 18 Cal.2d 610, 614 2... eee eee

Crawford v Weather Shield Mfg. Co.

(2008) 44 Cal.4th 541, 565 fn. 12.0... eee

Emerald Bay Community Assn. v. Golden Eagle Ins. Corp.

(2005) 130 Cal. App.4th 1078, 1088-1089 ................ 000

Hood v. Sup. Ct. (United Chambers Administrators, Inc.)

(1995) 33 Cal.App.4th 319, 321 22... ee eee

Interstate Fire and Cas. Ins. Co. v. Cleveland Wrecking Co.

(2010) 182 Cal.App.4th 23, 34-35 226 ee

Mel Clayton Ford v. Ford Motor Co.

(2002) 104 Cal. App.4th 46,49 2006... eee eee

Page iv

Page(s}

Table of Contents/Table of AuthoritiesCo wm IN DAH & WwW

10

Reagan Roofing Co., Inc. v. Sup. Ct. (Pacific Scene)
(1994) 24 Cal.App.4th 425, 437 20 ett eee 8

UDC-Universal Development v. CH2M Hill
(2010) 181 Cal. App.4th 10 200 ee eee eee 15, 16, 17

Page v

Table of Contents/Table of AuthoritiesOo oe YN DW Bw

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CODES PAGE

Code of Civil Procedure §437c(f)(1) 0... ce eee ene 8

Code of Civil Procedure §437¢ (h) 20. cree 9

Civil Code §1039 0. eters 12

Civil Code §2778 (4) .0 occ eee teeter e ete ee 16
Page vi

Table of Contents/Table of Authorities|
INTRODUCTION

HKS, Inc respectfully submits that this motion ought be denied, or, at a minimum, continued for a
period of months to allow necessary discovery as to various issues raised in the moving papers to be
addressed, lt ought be denied, in that (1) there is no competent evidence to support the introduction of or
testimony concerning the documents upon which this motion is based, (2) the Architect Agreement
containing the indemnity provision is with Catellus Urban Development Group, LLC, and there is no
evidence that it ever assigned any rights under the contract , (3) the Architect Agreement is with "HKS, Inc.,
a Texas corporation doing business in California as HKS Architects, Inc’, and there is no evidence that that

entity ever consented to an assignment, (4) the “Assignment of Architects Agreement is a nullity, in that it

o

purports to both assign and retain rights at the same time, (6) the “Assignment of Architects Agreement’ is
by an entity known as Third and King Investors, LLC, and there is no evidence of what it is, what role it
played, what its relationship to the Project or with others might be, or what righis, if any, it might have in a
contract between two different entities, (6) It is unclear, and triable issue of fact exists, as to what, precisely,
was being assigned and what, precisely, was retained, (7) triable issues of material fact exist as to whether
HKS, or any related entity, actually had a meeting of the minds with anyone as to what was, and was not
being assigned, or consented to, (8) the provision under which the claim has been made Is for indemnity
only, and not defense, and does not give rise fo a pre-trial defense obligation, (9) Cross-Complainants have|
not demonstrated that the claims “resulted from” the conduct of any HKS entity, and countervailing
evidence demonstrates, at a minimum, triable issues of material fact in that regard, (10) Cross-
Complainants have not demonstrated that the claims “resulted from” the “misconduct or any negligent act,
error or omission” of any HKS entity, and countervailing evidence demonstrates, at a minimum, triable
issues of material fact in that regard, (11) Cross-Complainants have not demonstrated that the claims were
not, in fact, occasioned by the “active, passive of concurrent negligence” of the indemnified parties or
those for whom or which they are liable, and countervailing evidence demonstrates, at a minimum, a triable

issue of material fact in that regard , (12) the motion for summary adjudication is premature, in that the First

HKS, INC.’S OPPOSITION TO “MISSION PLACE LLC AND AFFILIATES” MOTION FOR SUMMARY ADJUDICATION oF 1
ISSUES; DECLARATION OF JACK 8. PRICE, JR. AND NOEL E. MACAULAY IN OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION
Opposition to Motion for Summary Adjudication = 1.1Amended Cross-Complaint, upon which it is premised, is the subject of demurrer and may well not be at
issue (or subject fo amendment) by the time the motion is heard and (13) that there has been a discovery
stay in effect until recently, and a great deal of necessary discovery remains to be conducted and (14) there!
is no evidence that Cross-Complainants have sustained any damages, and evidence that they have not,
creating a triable issue of material fact in that regard. These are but a few of the reasons detailed below
which militate strongly for denial of the motion for summary adjudication,

STATEMENT OF FACTS

A. Background
This action arises out of certain alleged deficiencies in the construction of a condominium complex

currently known as “The Beacon”, and formerly known as “Mission Bay N1” (hereinafter the “Project’).
Plaintiff - the Beacon Residential Community Association (hereinafter ‘plaintiff’ or “the HOA”) - has brought
suit against virtually every entity involved in the Project; the allegations range from construction defect
claims to allegations of fraud (as to the sale of the units) and breach of fiduciary duty (as to the operation of
the HOA when it was under the control of the developer). Amongst the twenty two (22) defendants are the
cross-complainants.

B. The HKS Architectural Agreement and the Parties to the Same

HKS provided its services pursuant to a written contract by and between defendant Catellus Urban
Development Group, LLC (hereinafter “CUDG’) and “HKS, Inc., a Texas corporation doing business in
California as HKS Architects, Inc'' (this agreement is henceforth referred to as the “Architectural

Agreement") [HKS Sep. Stmt. No. 3, 4]. Defendant, Catellus Urban Development Group, LLC was the

+ The HKS entities, and their relationship to (1) the underlying contract, (2) the alleged assignment and (3) the motion:
for summary adjudication is somewhat convoluted, but does bear upon the outcome. This motion for summary
adjudication has been brought against “HKS Architects, Inc.” No corporate entity hearing this name, as such, exists
(although it is a dba of ‘HKS, Inc.’). “HKS, Inc.”is a Texas corporation in good standing. Finally, there is another
entity, which is a California corporation with the rather lengthy name of “HKS, Inc., a Texas corporation doing
business in Califomia as HKS Architects, inc.” {tis the later HKS entity which is a party to the design services
contract containing the indemnity provision in question. The assignment, however, Is for rights under the contract
with “HKS Architects, Inc.", which is to say, “HKS, nc.” The long and short of this is that this motion for summary
adjudication has been brought against the wrong cross-defendant.

FIKS, INC.’S OPPOSITION TO “MISSION PLACE LLC AND AFFILIATES” MOTION FOR SUMMARY ADJUDICATION oF
ISSUES; DECLARATION OF JACK B. PRICE, JR. AND NOEL E. MACAULAY IN OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION

Opposition to Motion for Summary Adjudication «1.party which contracted with the relevant HKS entity, for which it provided services, fo which it submitted its
invoices, and by which it was paid [HKS Sep. Stmt. No. 1-8]. Third and King investors, LLC is yet another
defendant; its relationship, if any, with Catellus Urban Development Group, LLC is not referenced in the
motion for summary adjudication.

C. The Indemnity Provision in the Architectural Agreement

Under the Architectural Agreement, HKS is identified as one of the entities which would be providing
design services on the Project under contract with the owner; others included Skidmore, Owings & Merrill,
LLP (hereinafter “SOM’), defined as the “Design Architect’, as well as, by category, “Consultants”,
“Additional Consultants” and “Design/Build Consultants” [HKS Sep. Stmt. No. 9]. As to at least some of
these entities, there are specific disavowals of liability for the other design professional's work [See e.g.
Architectural Agreement, §1.18]

The language at issue in this litigation is Section 7.2 (a) of the Architectural Agreement, which
provides, in pertinent part:

Architect shall indemnify and hold harmless Owner and ail subsidiary and affiliated entities of
Owner ... and each of their respective members, managers, partners, agents,
representatives, trustees, directors, officers, shareholders and employees (collectively, the
“Indemnified Parties" ... ), from and against any and all claims, losses, liabilities, damage,
liens, obligations, interests, injuries, penalties, fines, lawsuits or other proceedings,
judgments and awards ..... including the reasonable costs to the Indemnified Parties of
carrying out the terms of any judgment, settlement, consent decree, stipulated judgment or
other partial or complete termination of an action or proceeding that requires the Indemnified
Party or Parties to take any action (collectively “Losses’) arising or resulting from: (i) any
misconduct, failure to comply with any provision of this Agreement, or negligent act,
error or omission of Architect or Architect's agents, representatives, officers or
employees, or any other person or entity directly or indirectly employed or hired by Architect
of such other person or entity in connection with the Work; or (ii) any unauthorized work
performed by Architect. The foregoing indemnification shall not apply to the extent that
such Losses are caused by the active, passive, or concurrent negligence or willful
misconduct on the part of any Indemnified Party. [Emphasis Added]

‘There is no language in the section referencing a separate obligation to defend the Owner, and
even the obligation to indemnify must (1) arise or result from misconduct, a breach of the agreement or
negligent acts, errors or omissions of the Architect and (2) not be caused by the “active, passive, or

concurrent negligence or willful misconduct on the part of any indemnified Party”.

HKS, INC.’S OPPOSITION TO “MISSION PLACE LLC AND AFFILIATES” MOTION FOR SUMMARY ADJUDICATION oF
ISSUES; DECLARATION OF JACK B. PRICE, JR. AND NOEL E. MACAULAY IN OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION

Opposition to Motion for Surmmary Adjudication - 1]D. The Purported Assignment by Third and King Investors, LLC to Mission Place, LLC

The purported “Assignment of Architectural Agreement” upon which moving parties rely is between
Third and King Investors, LLC (hereinafter “TK!"} and Mission Place, LLC (hereinafter "MISSION”) and
provides, in pertinent part, that TKI is assigning to MISSION:

on a non-exclusive basis (with a reservation of all rights), "AS-IS" and without
warranty, except as expressly provided in that certain Mission Bay North Agreement of
Purchase and Sale of Ground Lease Interest and Joint Escrow Instructions dated as of
October 14, 2004, by and between Third and King and Mission Place, as amended (as
amended, the "Purchase Agreement”), all of its right, title and interest in and to and to the
extent the items described herein are not owned by Third and King, Third and King’s right
to the use of: (a) all architectural and engineering drawings, plans, specifications, ...
(thereinafter collectively referred to as the “Plans’)...and (b) all of Third and King’s right,
title and interest in and to all contracts, whether now existing or hereafter arising, to
which Third and King is a party or assignee and relating to the preparation of the
Plans with architects, engineers and any other party, including, without limitation , that
certain contract dated July 25, 2000 (the “Contract’) with HKS Architects, inc. (the
“Architect”); provided, however, that Third and King does not assign to Mission Place,
and Mission Place does not assume from Third and King, any of the obligations or
liabilities of Third and King or any of its predecessors in interest under the Contract, it
being the intention of the parties hereto that only the rights and benefits under the
Contract (including, without limitation, all warranties thereunder) be assigned to
Mission Place on a non-exclusive basis {i.e., Third and King retains all rights and
benefits under the Contract). [Emphasis Added, underlining in the original]

(See Tashjian Decl, Ex. 1, pp. MSA 0001)
What interest, if any, Third and King Investors, LLC might have had in the Architectural Agreement is
never specified, nor is its relationship, if any, with Catellus Urban Development Group, LLC.

E. The Purported “Consent and Agreement”

The purported “Consent and Agreement’, which was executed on behalf of "HKS Architects, Inc.’,
apparently relates to Third and King Investors, LLC’s interest, if any, in the Architectural Agreement. It
contains thirteen (13) separate representations, none of which reference either an assignment of indemnity
obligations or any sort of retention of rights by the Third and King Investors, LLC. In pertinent part, it
recites that the project is complete and that final payment, except as specified, has been received, and
contains three (3) separate and specific assignment references, which track the Architectural Agreement
language. First, there is a representation that “all Project Documents shall become the property of Mission

Place (as successor Owner (as defined in the Contract} under the Contract)”, which appears to be specific
HKS, INC.’S OPPOSITION TO “MISSION PLACE LLC AND AFFILIATES” MOTION FOR SUMMARY ADJUDICATION OF
ISSUES; DECLARATION OF JACK B. PRICE, JR. AND NOEL E. MACAULAY IN OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION

4

Opposition to Motion for Sommary Adjudication - 1.1to the Project Documents themselves, Second, there is a statement that “Architect has assigned to Owner
all guaranties and warranties relating to the Project to the extent of Architect's interest in such guarantees
and warranties’, which relates to guaranties and warranties in the Architect's favor. Third, and finally,
there is a representation that there have been no other assignments of these rights.

F. HKS Intent and Understanding of the Consent and Agreement

When HKS received the “Consent and Agreement’, the “Assignment of Architectural Agreement’ was
not attached. HKS at all times understood and believed that the assignment was limited to the specific
issues identified in the “Consent and Agreement’, such as an assignment of rights in the Project
Documents, or of warranties and guarantees made to it by others [HKS Sep. Simt. No. 12, 13]; it did not
intend, understand, believe, or agree to the assignment of any indemnity rights or obligations [Id.]

Moreover, it did not intend, understand, believe or agree to an “assignment in which the assignor (Third

and King Investors, LLC) would retain the same rights it purported to assign to others [HKS Sep. Stmt.

No. 14-17 }; it did not believe, or have reason to believe, that this was an expansion of any obligations unde!
the contract, rather than a transfer of right, nor does such comport with its understanding of an
“assignment’ in the first instance [Id],

G. Any Damages for Which Cross-Complainants Might Be Liable Did Not Arise Out of Any

Misconduct, Breach of the Architectural Agreement or Negligent Act, Error or Omission on

the Part of Any HKS Enti
The motion for summary adjudication proffers no evidence that any losses for which any HKS entity
could have assumed an obligation to indemnify, arose out of or resulted from “any misconduct, failure to
comply with any provision of this Agreement, or negligent act, error or omission of Architect or Architect's

agents, representatives, officers or employees, or any other person or entily directly or indirectly employed

2 Section 12.14 of the Architectural Agreement, captioned “Ownership and Use of Documents”, refers to an
assignment “to Owner of all of Architect's right, title and interest ... in and to all work product’ and defines them as
the “Project Documents” [See Ex. 4 in moving parties Compendium of Exhibits, at MSA 0084}.

3 Section 12.15 of the Architectural Agreement, captioned “Guarantees and Warranties’, refers to an assignment ‘to
Owner of “all guarantees and warranties provided fo Architect or its Consultant(s) or suppliers in the performance of
services hereunder’ (emphasis added) and notes that such may be assigned by the Owner at any time. (See Ex. 4 in
moving parties Compendium of Exhibits, at MSA 0085).

HKS, INC.’S OPPOSITION TO “MISSION PLAGE LLC AND AFFILIATES” MOTION FOR SUMMARY ADJUDICATION oF

ISSUES; DECLARATION OF JACK B. PRICE, JR. AND NOEL E. MACAULAY IN OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION

Opposition to Motion for Summary Adjudication - 1,1or hired by Architect or such other person or entity in connection with the Work; or (ii) any unauthorized
work performed by Architect’. In fact, and as set forth in the attached Declaration of Jack D. Price, Jr.,
these claims do not arise or result from any such conduct [HKS Sep. Stmt. No. 18-23].

H. To the Extent that Cross-Complainants Have Any Liability, Such Was Caused by the Active,

Passive, or Concurrent Negligence/Fault of the Owner, or Those for Which It or its

Predecessor Were Liable
The motion for summary adjudication proffers no evidence that the losses for which any HKS entity is
sought to be held fiable were not occasioned by or the result of the active, passive, or concurrent
negligencerfault of the owner, or those for which itis liable. In fact, the evidence demonstrates that they
such was the cause of any damages to which Cross-Complainants might be exposed [HKS Sep. Stmt, No.
24].
tt

THE “MISSION PLACE RELATED PARTIES AND AFFILIATES” HAVE FAILED TO SUPPORT THEIR

ASSERTIONS BY ANY COMPETENT EVIDENCE

As noted in the Objections to the Declarations of John Tashjian and Steven Cvitanovic, there is no
competent evidence presented in support of many of the contentions made and documents presented, and
a near complete failure of proof as to numerous critical issues, including what was assigned, and what was
retained, and which entity had the right to assign, when and to whom.

Vv

THE MOTION FOR SUMMARY ADJUDICATION OF ISSUES IS PREMATURE AND ALSO OUGHT BE

CONTINUED TO ALLOW NECESSARY DISCOVERY TO TAKE PLACE

A. The Motion for Summary Adjudication is Improper and Premature

This is a motion for summary adjudication of a declaratory relief cause of action. The declaratory relief
cause of action, however, encompasses three (3) separate issues [First Amended Cross-Complaint, {159},

two (2) of which are not addressed in this motion, As such, granting summary adjudication as to the issue

HKS, INC.’S OPPOSITION TO “MISSION PLACE LLC AND AFFILIATES” MOTION FOR SUMMARY ADJUDICATION OF
ISSUES; DECLARATION OF JACK B. PRICE, JR. AND NOEL E. MACAULAY IN OPPOSITION TO MOTION FOR

SUMMARY ADJUDICATION
‘Opposition to Motion for Summary Adjudication - 1.4will not completely dispose of the cause of action to which it relates, as required [Code of Civil Procedure
§437c(f)(1); Hood v. Sup. Ct. (United Chambers Administrators, Inc.) (1995) 33 Cai.App.4t 319, 321}. In

that regard, characterizing the matter as a declaratory relief claim will not salvage an otherwise deficient
motion for summary adjudication [Id. at 322-323]. Nor is the matter susceptible to early summary
adjudication under the guise of adjudicating a duty. That is, where the liability of parties have not been
determined on the merits, attempts to determine the existence of a duty to defend are premature and ought

not be allowed [See e.g. Reagan Roofing Co., Inc. v. Sup. Ct. (Pacific Scene) (1994) 24 Cal.App.4* 425,

437, cited with approval as to the concern articulated therein at Crawford v Weather Shield Mfg. Co, (2008)
44 Cal4 641, 566, fn. 12].

B. The Motion for Summary Adjudication Ought Be Continued To Allow Necessary Discovery

To Take Place

As detailed in the attached Declaration of Noel £. Macaulay, after the lawsuit was filed, the Superior
Court granted MISSION’s motion to compel judicial reference, and stayed the Superior Court action for all
purposes. In the interim, the plaintiff and MISSION agreed to Ronald Sabraw (Ret.) of JAMS as their
Judicial Referee. Judge Sabraw was later appointed as Special Master by order of November 9, 2010, as
io all parties in both proceedings, including discovery and case management. Despite the September 2,
2009 Stay Order, the HOA filed a First Amended Complaint on June 1, 2010. By Order of this Court, dated
November 9, 2010, the above stay was lifted and all defendants’ responsive pleadings to the First
Amended Complaint were to be filed to be heard on January 20, 2011. Since that time, HKS has
appeared on and as to both the First Amended Complaint and the Cross-Complainants First Amended
Cross-Complaint; its demurrers and mations to strike are set to be heard on February 18, 2011. As such, it
appears unlikely that the case will even be at-issue by the time this motion for summary judgment is heard,
and if the demurrer to the First Amended Cross-Complaint is sustained, the pleading upon which the
motion for summary judgment is premised may not provide a proper basis for the same.

More critically, as a consequence of the stay, very little discovery has been allowed; the only

present discovery currently permitted are the parties’ document productions, which are voluminous and

HKS, INC.’S OPPOSITION TO “MISSION PLACE LLC AND AFFILIATES” MOTION FOR SUMMARY ADJUDICATION oF
ISSUES; DECLARATION OF JACK B. PRICE, JR, AND NOEL E. MACAULAY IN OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION
Opposition to Motion for Summary Adjudication - 1.4ongoing. Pending interrogatories between the parties have just been served. At present, Special Master
Sabraw has only allowed the parties to serve ten (10) interrogatories and ten (10) requests for admissions
by March 1, 2011 and responses thereto by March 15, 2011. Depositions are, likewise, not currently
permitted and/or scheduled while the parties' document production disputes are resolved. The first
depositions were to be supposed to be scheduled in February of 2011, but have dates for the same have
not yet been provided by plaintiff's counsel; there have been no depositions in this case. As such, there
has been virtually no opportunity to conduct necessary discovery related to issues important to this motion
for summary adjudication.

Code of Civil Procedure §437c (h) provides that:

“[ijf it appears from the affidavits submitted in opposition fo a motion for summary
judgment or summary adjudication or both that facts essential to justify opposition
may exist but cannot, for reasons stated, then be presented, the court shail deny

the motion, or order a continuance to permit affidavits to be obtained or discovery
to be had or may make any other order as may be just."

Here, and as set forth in the attached Declaration of Noel E. Macaulay, there is an abundance of
necessary written and deposition discovery which would be necessary and appropriate to defeat this
motion, including:

« The involvement and relationship of Third and King Investors, LLC with the project, the
Architectural Agreement, Catellus Urban Development Group, LLC, and any rights under the
contract.

e What, precisely, is being assigned and what is being retained.

e The meaning of the language in the Assignment of Architect Agreement, as the parties to it
understood it.

6 The intent of Third and King Investors, LLC and Mission Place, LLC in entering into the
assignment

© Any transfers of interest of Catellus Urban Development Group, LLC,

# The relationship between the Cross-Complainants, and the accuracy of the assertion thal they

are all “affiliated entities’ of one another

HKS, INC.’S OPPOSITION TO “MISSION PLACE LLC AND AFFILIATES” MOTION FOR SUMMARY ADJUDICATION OF
ISSUES; DECLARATION OF JACK B. PRICE, JR. AND NOEL E. MACAULAY IN OPPOSITION TO MOTION FOR

SUMMARY ADJUDICATION
Opposition to Motion for Summary Adjudication - 1.1« The claims, if any, being made under the purportedly assigned claims by Catellus Urban
Development Group, LLC and/or Third and King Investors, Inc.
« The involvement of the Cross-Complainants in matters which do, or do not implicate any
design claims involving HKS.
© The meaning which Catellus Urban Development Group, LLC asserts certain contract
provisions have.
« The extent to which HKS’ work is alleged to be implicated in the claims being made by plaintiff
These are but a few of the issues which would properly be the subject of discovery, and which HKS)
would engage in, if provided the opportunity to do so, Ordinarily, this could be done in a few months, but
this may be more difficult in a case of this magnitude, where deposition schedules are worked out well in
advance and are subject to other considerations, as well as limiting orders by a Special Master. Still, HKS.
believes that it can accomplish this in a few months time and would request that the hearing be continued
for at least that long in order to allow this discovery to be conducted and an opposition based upon the
same to be filed and served.

Vv

ANY ASSIGNMENT TO THE “MISSION PLACE RELATED PARTIES AND AFFILIATES” WAS INVALID,

INEFFECTIVE AND DID NOT CONVEY ANY INDEMNITY RIGHTS OR DEFENSE OBLIGATIONS

A. There is No Evidence that of What Rights, if Any, Assignor Had to Assign

What is Third and King investors, LLC? What relationship, if any, did it have to the Project? What
rights, if any, did it have under the Architectural Agreement? With any of the HKS entities? What
relationship, if any, did it have with Catellus Urban Development Group, LLC? There is nothing,
whatsoever, in the motion for summary adjudication from which this information can be gleaned. The only
reference to Third and King Investors, LLC is in the purported “Assignment of Architectural Agreement’,
which is not properly or competently authenticated, and in any event, does not even describe TKI's
purported role. Moreover, the document is not even complete; referencing as it does another document
(the “Mission Bay North Agreement of Purchase and Sale of Ground Lease Interest and Joint Escrow

Instructions") which is neither produced nor attached to the moving papers. The “Assignment of

HKS, INC.’S OPPOSITION TO “MISSION PLACE LLC AND AFFILIATES” MOTION FOR SUMMARY ADJUDICATION oF
ISSUES; DECLARATION OF JACK B. PRICE, JR. AND NOEL E, MACAULAY IN OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION

Opposition to Motion for Summary Adjudication - LlArchitectural Agreement” does not even purport to represent that the alleged assignor, Third and King
Investors, LLC, even has any substantive rights to assign — it states that such is “(with a reservation of
rights), “AS IS” and without warranty’. One thing that Third and King Investors, LLC is clearly not is a part
to the Architectural Agreement itself, as evinced by the very contract at-issue here. How then can an
assignee of these unspecified and unknown rights (if they exist at all) make a claim on the same? In that
regard, the burden of showing the assignor’s authority to assign and the nature of the rights assigned

always lies with the party claiming under the assignment [See e.g. Cockerell v. Title Ins. & Trust Co. (1954

42 Cal.2d 284, 286, 291-2934]. On this record, it is impossible to make that showing and the motion for
summary adjudication ought therefore be denied,

B. The HKS Entity Which Was The Party to the Architectural Agreement and Arguably

Bound By the Same Was Not the Subject of the Assignment and Did Not Consent to the

Same.
The Architectural Agreement in question is between Catellus Urban Development Group, LLC and
"HKS, Inc., a Texas corporation doing business in California as HKS Architects, Inc.”. That is what the
Architectural Agreement says®. Nor is this a typographical error — that is the actual name of the California
corporation [judicial notice is respectfully requested of the corporate information contained on the Secretary
of State’s website at http://kepler.sos.ca.gov/chs.aspx (C1287348)]. The purported assignment relates to

interestsThird and King Investors purportedly has in a contract with “HKS Architects, Inc.” There is no

* As noted in Cockrel (supra), not only does “the burden of proving an assignment falls upon the party asserting
rights thereunder’, but "the evidence must not only be sufficient to establish the fact of assignment when that fact is
in issue but the measure of sufficiency requires that the evidence of assignment be clear and positive to protect an
obligor from any further claim by the primary obligee” Cockrell (supra at 292), That is particularly the case here.
Catellus Urban Development Group is a defendant in this case. So is Third and King Investors, LLC. Since an
assignment is a transfer of rights, if the assignment is valid to convey the rights of the party with which HKS
contracted, the Court would necessarily have to also determine that Catellus Urban Development Group had
relinquished those rights, for example, lest there be utterly inconsistent rulings and double (or treble) liability, with
Catellus Urban Development Corporation suing on the contract and for express indemnity (based upon lack of
evidence of a valid assignment), while MISSION asserted the same ciaims on and under the disputed assignment.

5 To the extent that there are also references to other HKS entities in the Architectural Agreement, such (a) does not
make them signators fo the Architectural Agreement, and (b) at best, creates confusion (and thus a triable issue of
material fact) as to which entity is the contracting party.

HKS, INC,’S OPPOSITION TO “MISSION PLACE LLC AND AFFILIATES” MOTION FOR SUMMARY ADJUDICATION. oF! r
ISSUES; DECLARATION OF JACK B, PRICE, JR. AND NOEL E. MACAULAY IN OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION

Opposition to Motion for Summary Adjudication - 1]separate entity “HKS Architects, Inc.” - it is a name under which "HKS, Inc.”, a Texas corporation, does
business. ‘HKS, Inc., a Texas corporation doing business in California as HKS Architects, inc’ did not sign
the “Consent and Agreement’ invoked in support of the motion for summary adjudication. The burden of
proving consent to an assignment remains, as always, with the person seeking to recover under the
assignment, including producing evidence as to the authority of the persons purporting to bind another,
either as assignor or assignee [See e.g. Cockerell v, Title Ins. & Trust Co. (1954) 42 Cal.2d 284, 286, 291-
293}

C. The Assignment Is Invalid and Ineffective

An assignment, by definition, a transfer of right from one person or entity fo another [See Civil

Code §1039: Commercial Discount Co. v. Cowan (1941) 18 Cal.2d 610, 614]. One cannot assign what

one retains; something is either assigned or it is not. in this case, however, the “Assignment of
Architectural Agreement’ purports to do both, with Third and King investors, LLC retaining the very rights it
purports to assign, without warranty of any kind. Such a document is, by definition, a nullity. Of a certainty,
and as evinced by the Declaration of Jack D. Price, Jr., and even if such a document could have any facial
validity, it was not the understanding, intent or agreement of any HKS entity to expand the scope of
contractual obligations by entering into the “Consent and Agreement; at a minimum, there are triable
issues of material fact as to what assignment took place and of which rights.

D. The “Assignment” Does Not Extend to Indemnity Claims

Assuming, arguendo, that Third and King investors LLC had any rights under the Architectural
Agreement to assign in the first place, what were they’ If the document is a valid one, something must
have been transferred; and, if the language of the assignment is given credence, something retained. If so,
which rights were assigned, and which retained? The most appropriate way of determining this — absent
testimony of the persons concerned ~ is to review the “Consent and Agreement”, which specifies particular
scopes of assignments — relating, for example, to “Project Documents” and ‘warranties and guaranties”
made to the Architect — but not to indemnity obligations, Moreover, not only is this the most reasonable
way of reading the assignment ~ assuming that it was valid in the first instance ~ but it is consistent with the|

intent of the HKS in entering into the “Consent and Agreement’, and indeed, without that understanding,

HKS, INC.’S OPPOSITION TO “MISSION PLACE LLC AND AFFILIATES” MOTION FOR SUMMARY ADJUDICATION OF 7
ISSUES; DECLARATION OF JACK B. PRICE, JR. AND NOEL E, MACAULAY IN OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION
Opposition to Motion for Summary Adjudication - 1.belief, intent and agreement, there would have been no consent, and thus no valid assignment in the first

instance.

vi

MISSION PLACE HAS NOT MET ITS BURDEN OF DEMONSTRATING THAT THE INDEMNITY

PROVISION (1} APPLIES AND (2) ENCOMPASSES A DEFENSE OBLIGATION: ALTERNATIVELY,

TRIABLE ISSUES OF MATERIAL FACT EXIST IN THAT REGARD

A. The Language of the Indemnity Provision Does Not Include, In its Terms, Structure,

Form and Intent, An Obligation to Defend Prior to Trial

Nowhere in Section 7.2 (a) of the Architectural Agreement is the word “defend” mentioned, or is
any obligation to defend anyone set forth. To the contrary, in its specific language, form, structure, and in
context, it was clearly intended to encompass only an obligation to indemnify, and only under narrowly
circumscribed conditions. First, all operative words are so constrained [e.g. “indemnify and hold harmless’,
“Indemnified Parties”, “Indemnified Party" and ‘indemnification’]. Second, the form and structure of the
paragraph, and the other words in it, demonstrate such an intent [e.g. the characterization of all matters to
be indemnified as “Losses”, and reference to attorney fees and costs for “carrying out the terms of any
judgment, settlement, consent decree, stipulated judgment or other partial or complete termination of an
action”: such does not refer, even in passing, to recovery of defense costs. Third, the other language is
not only inconsistent with an intent to defend, but incompatible with it. That is, a limitation on recovery for
“Losses” “arising or resulting from” (not alleged to arise or result from) presuppose a determination as to
causation. There is a further limitation related to a substantive determination of the bases for liability
(‘misconduct”, breach of the contract, or “negligent act, error or omission’), further manifesting such an
intent. Finally, the statement that the obligation does not apply to Losses caused by the “active, passive
or concurrent negligence or willful misconduct” on the part of any Indemnified Parly necessarily

presupposes an adjudication of these issues, and cannot be reconciled with a prior duty to defend®.

Seth duty to defend were triggered by a bare alle ation of fault by the plaintiff and as to the conduct of the potential

DECLARATION OF JACK B. PRICE, JR. AND NOEL E. MACAULAY IN OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION

ISSUE!

Opposition to Motion for Summary Adjudication - 1.JB. Cross-Complainants Have Not Met Their Burden of Demonstrating That Any Losses

Resulted From Misconduct _or Negligent Acts, Errors or Omissions on the Part of

Cross-Defendant’s Part, or on the Part of Those for Which It Was Responsible;

Alternatively, Countervailing Evidence Creates Triable Issues of Material Fact

The indemnity obligation requires that the Losses arise or result from misconduct, or negligent
acts, errors or omissions on the part of the indemnitor, or those for which itis responsible, In that regard,
not one iota of evidence has been proffered by the moving parties to demonstrate that the claims against
moving parties were caused by anything HKS (or those for which it was or is responsible) did or failed to
do. Just as importantly, there is not one iota of evidence proffered to support any assertion of “misconduct,
failure to comply with any provision of this Agreement, or negligent act, error or omission of Architect’ (or
those for which it was responsible). Not only has there been a complete failure of proof in that regard, but
HKS has introduced countervailing evidence squarely refuting any such assertion, which, in and of itself,
creates triable issues of material fact sufficient to defeat a motion for summary adjudication.

C. Cross-Complainants Have Not Met Their Burden of Demonstrating That Any Losses To

Which They Are Exposed Did Not Arise From Their Active, Passive, Or Concurrent

Negligence, Or of Those From Which They Took An Assignment , or Those for Which

They Were Responsible; Alternatively, Gountervailing Evidence Creates Triable Issues

of Material Fact
This indemnity provision contain a requirement that the losses result from certain conduct, as well
as a separate and positive statement of situations and circumstances for which no indemnity obligation will
apply. In that regard, Cross-Complainants have made no effort to demonstrate that any losses or exposure}

they might have was not occasioned by their “active, passive cr concurrent negligence or willful

to defend. Since each and every one of the parties seeking indemnity, as well as the entity (Third and King
Investors, LLC) which purportedly assigned the rights, and the entity which entered into the Architectural Agreement
in the first instance (Catellus Urban Development Group) are defendants and are alleged to be at fault for the
damages complained of, the exception negates the rule and no duty to defend would exist, at least prior to
adjudications of liability in the underlying case and on its merits.

HKS, INC.’S OPPOSITION TO “MISSION PLACE LLC AND AFFILIATES” MOTION FOR SUMMARY ADJUDICATION oF
ISSUES; DECLARATION OF JACK B. PRICE, JR. AND NOEL E. MACAULAY IN OPPOSITION TO MOTION FOR
SUMMARY ADJUDICATION

Opposition to Motion for Summary Adjudication - 1misconduct’, or that of the entities from which they purportedly received the assignment? (or for whose
conduct it or they were responsible). In that regard, it is their burden of proof, as the moving parties on a
motion for summary adjudication. Moreover, if Cross-Complainants assert that the allegations in the First
Amended Complaint are sufficient to trigger a duty to defend, the very same allegations against Cross-
Complainants, as well Third and King Investors, LLC and Catellus Urban Development Group would be as

dispositive in establishing the inapplicability of the indemnity clause; all are defendants, all alleged to be

negligent and at fault; if allegations are sufficient, all are directly alleged to be actively negligent. Finally,
and as detailed in the attached Declaration of Jack D. Price, Jr., countervailing evidence submitted by HKS,
and establishing that such active, passive or concurrent negligence on their part does exist, create, at a
minimum, triable issues of material fact sufficient to defeat the motion for summary adjudication.

vit

GIVEN THE LANGUAGE IN THE INDEMNITY PROVISION, NEITHER CRAWFORD NOR UDC

SUPPORT SUMMARY ADJUDICATION IN CROSS-COMPLAINANTS FAVOR

Cross-Complainants’