Motion-Secondary: BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al

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Coltins Collins
Muir + Stewart LLP.
1100 E! Cente Steet

Sp, Pasadena, CA $1030
Phone (626) 243-4200
Fax (626) 244014

Samuel J. Muir, Esq. (State Bar No. 89883)
Erin R. Dunkerly, Esq. (State Bar No. 260220)

COLLINS COLLINS MUIR + STEWART LLP ELECTRONICALLY
1100 El Centro Street
South Pasadena, CA 91030 sy JE IL ED mia,
(626) 243-1100 — FAX (626) 243-1111 County of San Francisco |
Attorneys for Defendant SEP 09 2013
WEBCOR CONSTRUCTION, INC. dba WEBCOR BUILDERS Clerk of the Court
BY: VANESSA WU
Deputy Clerk

Steven H. Schwartz, Esq. (State Bar No. 94637)

Noel Macaulay, Esq. (State Bar No. 121695)

SCHWARTZ & JANZEN, LLP

12100 Wilshire Bivd., Suite 1125

Los Angeles, CA 90025

(310) 979-4090 — FAX: (310) 207-3344

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

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY
ASSOCIATION,

CASE NO. CGC-08-478453

[Assigned to Judge Curtis EA. Karnow, Dept 304]
Plaintiff, MEMORANDUM OF POINTS &
AUTHORITIES RE: JOINT EX PARTE
APPLICATION OF DEFENDANTS WEBCOR
AND HKS FOR EXTENSION OF TIME TO
FILE WRIT PETITION

VS.

CATELLUS THIRD AND KING, LLC, et
al.,

Notice of Ex Parte Application; Declarations of
Noel £. Macaulay, Eric Brown, Gregory T. Hanson,
and Evin Dunkerly; Exhibit A; and [Proposed]
Order Filed Concurrently Herewith

Defendants.

AND ALL RELATED CROSS-ACTIONS.
DATE: September 9, 2013
TIME: 4:00 p.m.
PLACE: Dept. 304

Complaint Filed: 08/08/08

eee SS SS

Trial Date: None

fil
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Coltins Collins
Muir + Stewart LLP.
1100 E! Cente Steet

Sp, Pasadena, CA $1030
Phone (626) 243-4200
Fax (626) 244014

MEMORANDUM OF POINTS AND AUTHORITIES

1.
INTRODUCTION
Webcor and HKS request this Court grant a 10-day extension of time to file a writ petition
with the Court of Appeal regarding the grant of Mission Place’s Motion for Summary Adjudication
on the duty of Webcor and HKS to defend Mission Place. Good cause exists for this 10-day
extension due to the brief period permitted for a writ petition; the limited availability of counsel in
that period; the complexity of the issues raised in the motion relating to contractual indemnity; and
the exhaustive and voluminous exhibits that must be filed with the writ.
i
EXIGENT CIRCUMSTANCES AND GOOD CAUSE EXIST FOR
THE COURT TO GRANT THIS EX PARTE APPLICATION

A. Exigent Circumstances Exist Because Webcor and HKS Have a Brief 20-Day

Statutory Period to File a Writ Petition

Unless extended, Webcor and HKS will have a mere 20 days to file a writ. As such, it is
impossible to file a motion to extend the time and have the same heard on statutory notice, let alone
meeting any scheduling issues that the Court might otherwise have and which would restrict setting
the motion on the minimum notice otherwise allowed. As such, this ex parte application is
necessary. Dunkerly Decl., 95.

On Wednesday, August 21, 2013, Mission Place served a Notice of Entry of Order Granting
Mission Place’s Motion for Summary Adjudication against Webcor and HKS via electronic service.
Dunkerly Decl., 44. Given the August 21 electronic filing date of the Notice of Entry of Order,
service was complete on Friday, August 23, 2013. See Rules of Court, Rule 2.251 subd. (h)(2) (“If
a document is served electronically, any period of notice, or any right or duty to act or respond
within a specified period or on a date certain after service of the document, is extended by two court
days, unless otherwise provided by a statute or a rule.”)

Service of Mission Place’s Notice of Entry of Order triggered two critical deadlines for

Webcor and HKS. First, under Code of Civil Procedure section 1008 (a), Webcor and HKS had

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JOINT EX PARTE APPLICATION FOR EXT. OF TIME TO FILE WRIT PETITIONCc 6H NM DR HW RD RD me

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Coltins Collins
Muir + Stewart LLP.
1100 E! Cente Steet

Sp, Pasadena, CA $1030
Phone (626) 243-4200
Fax (626) 244014

only 10 days from service of Mission Place’s notice in which to file a joint motion for
reconsideration under that section; they served and submitted their motion for electronic filing on
Tuesday, September 3, 2013. Dunkerly Decl., 6 and Macaulay Decl., §4. The hearing on that
motion is currently set for October 4. Dunkerly Decl., 6. Second, Webcor and HKS have 20 days
from service of Mission Place’s notice to file a writ petition with the Court of Appeal.

A party may file a statutory writ after the grant of a motion for summary adjudication. Code
Civ. Proc., § 437c, subd. (m)(1); see also Rehmani v. Superior Court (2012) 204 Cal. App. 4th 945,
949-50 (“An order granting summary adjudication may be reviewed by way of a petition for writ of
mandate”). There is a 20-day time limit for filing a writ under Code of Civil Procedure section 437c
subdivision (m), which is a jurisdictional limitation on Webcor and HKS’s ability to seek
immediate review: “Upon entry of any order pursuant to this section, except the entry of summary
judgment, a party may, within 20 days after service upon him or her of a written notice of entry of
the order, petition an appropriate reviewing court for a peremptory writ... .”

Given that service of Mission Place’s notice was effective on August 23, 2013, Webcor and
HKS’s petitions to the Court of Appeal must be filed by Thursday, September 12, 2013, both
parties seek an extension of 10 days.

B. The Trial Court Has Authority to Extend the Period for a Writ by Ten Days

The statute that governs motions for summary adjudication specifically provides the trial
court with discretion to extend the 20-day period by 10 days: “The superior court may, for good
cause, and prior to the expiration of the initial period, extend the time for one additional period not
to exceed 10 days.” Civ. Proc. Code § 437e subd. (m).

Therefore, given that the tenth day falls on Sunday, September 22, Webcor and HKS seek
an order extending the deadline to the next court day, which is Monday, September 23, 2013. Code
Civ. Proc., § 12a (“If the last day for the performance of any act provided or required by law to be
performed within a specified period of time is a holiday {including Saturday or Sunday], then that
period is hereby extended to and including the next day that is not a holiday.”); and Code Civ.
Proc., § 12b.
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JOINT EX PARTE APPLICATION FOR EXT. OF TIME TO FILE WRIT PETITIONCc 6H NM DR HW RD RD me

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Coltins Collins
Muir + Stewart LLP.
1100 E! Cente Steet

Sp, Pasadena, CA $1030
Phone (626) 243-4200
Fax (626) 244014

C. Good Cause Exists for Extending the Period to File Writ Petitions Because of the

Complexities of This Case and the Needs of Counsel

Here, good cause exists for a 10-day extension of the 20-day period to Monday, September
23, 2013 for three reasons.

First, the order at issue for the writ petition relates to the voluminous briefing of a
complicated motion for summary adjudication. The underlying motion related to a complex issue of
the existence of HKS and Webcor’s respective duties to defend Mission Place pursuant to various
contracts that were purportedly assigned to Mission Place. The extensive and voluminous record
demonstrates the complex issues raised by Mission Place’s motion. Not only are the motion,
responding papers, and supporting exhibits voluminous, the hearing on the motion on August 24,
2012, lasted several hours, and therefore the transcript of the hearing itself is unusually lengthy.
Dunkerly Decl., 449-10. Additionally, after the Court’s initial ruling was announced at the hearing
in August 2012, the Court requested the parties submit proposed orders, which led to further
extensive submissions by Mission Place, Webcor, and HKS over the following year. Dunkerly
Decl., il. The appellate attorneys responsible for preparing the writ petitions must now review
and prepare their respective appellate filings from an unusually voluminous and complex trial court
record. Brown Decl., {3-8 and Macaulay Decl., 2-6. Failing to provide a 10-day extension
would therefore have an adverse effect on Webcor and HKS’s ability to prepare a writ petition
adequately, which would prejudice both parties. Brown Decl., 47 and Macaulay Decl., §5. For this
reason, good cause exists for an additional 10 days to file a petition with the Court of Appeal.

Second, the notice of entry of order has generated a considerable amount of other motion
work, which infringed on the 20-day time for filing a writ petition. Due to the statutory constraints
of Code of Civil Procedure section 1008, Webcor and HKS first had to address the 10-day
limitation for preparing and filing a motion for reconsideration under Code of Civil Procedure
section 1008(a). Dunkerly Decl., {6 and Macaulay Decl., 4. Webcor and HKS diligently prepared,
served, and submitted their joint motion for filing on September 3, 2013. Dunkerly Decl., §6 and
Macaulay Decl., §4. The hearing on that motion was set for September 27 and is now set for

October 4, 2013, Dunkerly Decl., 7. Given that the initial 10 days were spent by counsel for

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JOINT EX PARTE APPLICATION FOR EXT. OF TIME TO FILE WRIT PETITIONCc 6H NM DR HW RD RD me

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Coltins Collins
Muir + Stewart LLP.
1100 E! Cente Steet

Sp, Pasadena, CA $1030
Phone (626) 243-1200
Fax (626) 244014

Webcor and HKS jointly preparing a motion for reconsideration and given the fact that the hearing
date has and will generate additional work for counsel within the next few weeks, good cause exists
for an additional 10 days to prepare and file a writ petition.

Third, the imitial Order and Notice of Entry of Order were entered and filed while the
handling attorney for the Webcor construction-side was unavailable due to a pre-planned vacation.
Counsel for Webcor did not return until Monday, August 26 and was therefore unable to provide
necessary consultation with the client and co-defense counsel until August 27. Hanson Decl., {3—
4. Therefore, good cause further exists for additional time to address the writ petition.

D. A 10-day Extension Will Not Result in Any Significant Prejudice to Mission Place

No significant prejudice would result from a brief 10-day extension. There is currently no
trial date and so there are no imminent deadlines in this case that would be affected by such a short
extension. Mission Place cannot demonstrate any actual prejudice resulting from a 10-day extension
that outweighs Webcor and HKS’s good cause for this extension as articulated above.

Ill.
ADEQUATE NOTICE OF THIS EX PARTE APPLICATION HAS BEEN GIVEN TO
ALL INTERESTED PARTIES

As set forth in the Declaration of Erin R. Dunkerly, written notice of this Ex Parte
Application was served on the parties prior to 10:00 a.m. on Friday, September 6, 2013, by Lexis
File and Serve. Dunkerly Decl., €§2-3, and Exhibit “A”.) Counsel for Webcor also notified counsel
for Mission Place of this ex parte in person on September 4, 2013. Counsel for Webcor has been
informed by counsel for Mission Place that he intends to oppose this request based upon his
perception that his client would be reticent to do agree to any extension. Dunkerly Decl., 414 and
Hanson Decl., {6.

Iv.
CONCLUSION

For all of the foregoing reasons, good cause exists to continue the deadline for filing a writ

petition by ten (10) days to September 23, 2013. Defendants Webcor and HKS further request any

additional relief this Court deems just and proper.

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JOINT EX PARTE APPLICATION FOR EXT. OF TIME TO FILE WRIT PETITION1 ||DATED: September 9, 2013 COLLINS COLLINS MUIR + STEWART LLP
2
3 By:
4 ERIN 'R. DUNKERLY
SAMUEL J. MUIR
5 Attorneys for Defendant
WEBCOR CONSTRUCTION, INC. dba
6 WEBCOR BUILDERS
7 DATED: September 9, 2013 SCHWARTZ & JANZEN, LLP
8
9 By:
STEVEN H. SCHWARTZ
10 NOEL MACAULAY
Attorneys for Cross-Defendant
i HKS, INC., individually and dba HKS
b ARCHITECTS, INC.
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Collins Collins
Muir + Stewart Lol

fae 4626) 243181

DATED: September 9, 2013 COLLINS COLLINS MUIR + STEWART LLP
By:
SAMUEL J. MUIR
Attorneys for Defendant
WEBCOR CONSTRUCTION, INC. dba
WEBCOR BUILDERS
DATED: September 9, 2013 SCHWARTZ & JANZEN, LLP

By:

STEVEN H, ARTZ

NOEL M ULAY

Attorneys for Cross-Defendant

HKS, INC., individually and dba HKS

ARCHITECTS, INC.

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JOINT EX PARTE APPLICATION FOR EXT. OF TIME TO FILE WRIT PETITION28

Coltins Collins

Muir + Stewart LLP.
1100 E! Cente Steet

Sp, Pasadena, CA $1030
Phone (626) 243-4200
Fax (626) 244014

PROOF OF SERVICE
(CCP §§ 1013(a) and 2015.5; FRCP 5)
State of California, y
) ss.
County of Los Angeles }

Lam employed in the County of Los Angeles. Iam over the age of 18 and not a party to the within action; my business address is,
1100 El Centro Street, South Pasadena, California 91030.

On this date, [ served the foregoing document described as MEMORANDUM OF POINTS & AUTHORITIES RE:
JOINT EX PARTE APPLICATION OF DEFENDANTS WEBCOR AND HKS FOR EXTENSION OF TIME TO FILE
WRIT PETITION on the interested parties in this action by placing same in a sealed envelope, addressed as follows:

[2 (BY MAB) - | caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in South Pasadena,
California to be served on ihe parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of
collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S, Postal Service on that
same day with postage thereon fully prepaid at South Pasadena, California in the ordinary course of business. [ am aware that on motion
of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of
deposit for mailing in affidavit.

(BY CERTIFIED MAIL} — | caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested
to be placed in the United States Mail in South Pasadena, California.

[1 BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY

(BY ELECTRONIC FILING AND/OR_SERVICE) — | served a true copy, with all exhibits, electronically through LexisNexis File
and Serve on designated recipients listed on the attached Service List on: September 9, 2013 (Date)

FEDERAL EXPRESS - { caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with
delivery fees provided for.

F] (BY FACSIMILE) - | caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimile
number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (626) 243-1100 indicated all
pages were transmitted.

[1 BY PERSONAL SERVICE) - | caused such envelope(s) to be delivered by hand to the office(s) of the addresscets).

Executed on September 9, 2013 at: South Pasadena, California.

(STATE) - I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

[1] (FEDERAL) - [declare that 1 am employed in the office of a member of the bar of this court at whose direction the service was made.

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JOINT EX PARTE APPLICATION FOR EXT. OF TIME TO FILE WRIT PETITION28

Coltins Collins

Muir + Stewart LLP.
1100 E! Cente Steet

Sp, Pasadena, CA $1030
Phone (626) 243-4200
Fax (626) 244014

BEACON RESIDENTIAL COMMUNITY ASSOCIATION v, CATELLUS THIRD AND KING, LLC

SAN FRANCISCO SUPERIOR COURT — CASE NO. CGC 08-478453
OUR FILE NO, 18153

SERVICE LIST

Ann Rankin, Esq.

Terry Wilkens, Esq.

LAW OFFICES OF ANN RANKIN

3911 Harrison St,

Oakland, CA 94611-4536

(510) 653-8886 — FAX(510) 653-8889
kin@annrankin.com

twilkens@anprankin.com

ATTORNEYS FOR PLAINTIFF BEACON

RESIDENTIAL COMMUNITY ASSOCIATION

John A. Koeppel, Esq.
Todd J. Wenzel, Esq.

ROPERS, MAJESKI, JOHN & BENTLEY PC

100 Marshall Street, Suite 500

Redwood City, CA 94063-2052

(650) 364-8200 — PAX (650) 780-170
swenzel@rmkb.com

smartinez@rmkb.com

ikoeppel@rmkb.com

ATTORNESY FOR DEFENDANT PROLOGIS;
THIRD AND KING INVESTORS LLC; CATELLUS
URBAN DEVELOPMENT CORPORATION;
CATELLUS DEVELOPMENT CORPORATION;
CATELLUS THIRD AND KING INVESTORS LLC;
CATELLUS COMMERCIAL DEVELOPMENT
CORPORATION; CATELLUS OPERATING
LIMITED PARTNERSHIP

8. Mitchell Kaplan
Gregory Hanson, Esq.

GORDON & REES LLP

275 Battery $t., Suite 2000

San Francisco, CA 94111

(415) 986-5900 — FAX: (415) 986-8054
skaplangordonrees.com

ATTORNEYS FOR WEBCOR BUILDERS, INC. ;
WEBCOR CONSTRUCTION, INC., individually and
dba WEBCOR BUILDERS; WEBCOR
CONSTRUCTION LP, individually and dba WEBCOR
BUILDERS

Steven M. Cvitanovie, Esq.
HAIGHT, BROWN & BONESTEEL

71 Stevenson St., 20" Floor

San Francisco, CA 94105-2981

{415) 546-7500 — PAX: (415) 546-7505

scyitanoviewbbbl. mM.

ATTORNEYS FOR DEFENDANTS MISSION PLACE
LLC; CENTURION REAL ESTATE PARTNERS,
LLC; MISSION PLACE MEZZ HOLDINGS, LLC
erroneously named as MISSION PLACE HOLDINGS
LLC; MISSION PLACE MEZZANINE, LLC and
MISSION PLACE PARTNERS, LLC

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Kenneth Katzoff, Esq.

KATZOFF & RIGGS

1500 Park Ave., Suite 300

Emeryville, CA 94608

(510) 597-1990 ~ FAX: (510) 597-0295

kkatzofi@ katzofiriggs. com
sshim(tkatzotttiges.com

ATTORNEYS FOR PLAINTIFF BEACON
RESIDENTIAL COMMUNITY ASSOCIATION

David S, Webster, Esq.
Mark J. D’Argenio, Esq.

WOOD, SMITH, HENNING & BERMAN LLP

1401 Willow Pass Rd,, Suite 700

Concord, CA 94520-7982

(925) 356-8200 — FAX: (925) 356-8250
dwebster@iwshblaw.com

mdargenio@wshblaw.com

ATTORNESY FOR DEFENDANT PROLOGIS; THIRD
AND KING INVESTORS LLC; CATELLUS URBAN
DEVELOPMENT CORPORATION; CATELLUS.
DEVELOPMENT CORPORATION; CATELLUS THIRD
AND KING INVESTORS LLC; CATELLUS
COMMERCIAL DEVELOPMENT CORPORATION;
CATELLUS OPERATING LIMITED PARTNERSHIP

James L. Shea, Esq.
Carol Hastings, Esq.

BLEDSOE, CATHCART, DIESTEL, PEDERSEN &
TREPPA, LLP

601 California St, 16® Floor

San Francisco, CA 94108

(415) 981-5491 — FAX: (415) 981-0352
jshea@bledsoelaw.com

chastings@bledsoelaw.com

ATTORNEYS FOR DEFENDANT/CROSS-
COMPLAINANT SHGOTER & BUTTS, INE.

Steven H. Schwartz, Esq.
‘Thomas Matteson, Esq.

Noel Macaulay, Esq.

SCHWARTZ & JANZEN

12100 Wilshire Bivd., Suite 1125

Los Angeles, CA 90025

(310) 979-4090 ~ FAX: (310) 207-3344
sschwartz@’sj-law.com

tmatteson@sj-law.com

nmacaulay@jsj-law.com

ATTORNEYS FOR DEFENDANTS HKS, INC., HKS
ARCHITECTS, INC., HKS, INC., individually and doing
business as HKS ARCHITECTS, INC.

JOINT EX PARTE APPLICATION FOR EXT. OF TIME TO FILE WRIT PETITION28

Coltins Collins

Muir + Stewart LLP.
1100 E! Cente Steet

Sp, Pasadena, CA $1030
Phone (626) 243-4200
Fax (626) 244014

18183

BEACON RESIDENTIAL COMMUNITY ASSOCIATION v, CATELLUS THIRD AND KING, LLC

SAN FRANCISCO SUPERIOR COURT — CASE NO. CGC 08-478453
OUR FILE NO, 18153

William H. Staples, Esq.

ARCHER NORRIS

2033 North Main St., Suite 800

Walnut Creek, CA 94596

(925) £30- 6600— FAX: (825) 930-6620

SThorys FOR 'ANNING- JOHNSON COMPANY

Adam Brezine, Esq.

Julien E, Capers, Esq.

BRYAN CAVE LLP

560 Mission St., 25¢ Floor

San Francisco, CA 94105-2994

{A415} 268. 2000-— PAX: (415) 268-1999

Randell J. Campbell, Esq.

LYNCH, GILARDI & GRUMMER

170 Columbus Ave., 5** Floor,

San Francisco, CA. 94133

(415) 397-2800 — FAX: (415) 397-0937
pbel@lgulaw.com

ATTORNEYS FOR ARCHITECTURAL GLASS &

ALUMINIUM CO., INC,

Christopher T, Olsen, Esq.

CLINTON & CLINTON

100 Oceangate, Suite 1400

Long Beach, CA 90802

(562) 216-5078 — FAX: (562) 216-5001
smithy
ATTORNEYS FOR THYSSENKRUPP ELEVATOR
CORPORATION

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Kevin P. McCarthy, Esq,

Fred Trudeau, sq.

MCCARTHY & MCCARTHY, LLP

492 Ninth St., Suite 220

Oakland, CA 94607

(510) 839-8 100 ~ FAX: (510) 839-8108
kmecarthy@emecarthylip.com
firudean@mecarthylip.com

ATTORNEYS FOR WINDOW SOLUTIONS

Brent Basilico, Esq.

Christian Lucia, Esq.

Denae M. Olivieri, Esq.
SELLAR HAZARD & LUCIA
1800 Sutter St., Suite 460
Concord, CA 94520

bbasilico@scllarlaw.com

dolivieri@sellarlaw.com

(925) 938-1430 — FAX: (925) 256-7508,

ATTORNEYS FOR ALLIED FIRE PROTECTION,
BLUE’S ROOFING COMPANY, CAREFREE TOLAND
POOLS, INC., CREATIVE MASONRY, CRITCHFIELD
MECHANICAL, INC., CORPERTINO ELECTRIC, F.
ROGERS CORPORATION, J.W. MCCLENAHAN CO,,
N.V. HEATHORN, INC., VAN-MULDER SHEET
METAL, INC., WEST COAST PROTECTION
COATINGS, INC., and WESTERN ROOFING SERVICE

James P. Castles, Esq.

Richard C. Young, Esq.

ROBLES, CASTLES & MEREDITH

492 Ninth St., Suite 200

Oakland, CA 94607

(415) 632-1586 -- FAX: (415) 743-9305
iimm@ircmlawgroup.com

rick@remlawgroup.com

DEFENDANTS SKIDMORE OWINGS & MERRILL
LLP

JOINT EX PARTE APPLICATION FOR EXT. OF TIME TO FILE WRIT PETITION