Request,Application: BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al

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Steven M. Cvitanovic (Bar No. 168031)
Jessica M. Lassere (Bar No. 286724)
HAIGHT BROWN & BONESTEEL LLP

71 Stevenson Street, 20th Floor ELECTRONICALLY
San Francisco, California 94105-2981 FILED
Telephone: (415) 546-7500 Superior Court of California,
Facsimile: (415) 546-7505 County of San Francisco
Attorneys for Defendants and Cross-Complainants Mission Place LL 13

Mezz Holding LLC; Mission Place Mezzanine LLC; Mission Place Pagt
Centurion Real Estate Investors IV, LLC; and Centurion Real Estate ers, ASWerk
in its own name and erroneously sued as Centurion Partners LLC)

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY ) Case No. CGC 08-478453

ASSOCIATION,
MISSION PLACE'S OPPOSITION TO
Plaintiff, WEBCOR AND HKS’ JOINT EX
PARTE APPLICATION FOR
v. EXTENSION OF TIME TO FILE
WRIT PETITION
CATELLUS THIRD AND KING LLC;
[ubmitted concurrenily with the
Defendants. eclaration of Jessica M. Lassere]
} Date: September 9, 2013
AND RELATED CROSS-ACTION Time: 4:00 p.m.
Dept.: 304

Defendants Mission Place LLC, Mission Place Mezz Holding LLC, Mission Place
Mezzanine LLC, Mission Place Partners LLC, Centurion Real Estate Investors IV, LLC,
and Centurion Real Estate Partners, LLC (sued in its own name and erroneously sued as
Centurion Partners LLC) (collectively “Mission Place”), hereby submit the following
opposition to the Joint Ex Parte Application for Extension of Time to File Writ Petition
submitted by Defendants Webcor Builders, Inc., Webcor Construction, Inc. (collectively

“Webcor”) and HKS, Inc., HKS Architects, Inc. (collectively “HKS”).
d) —_siIntroduction
One year after this Court orally granted Mission Place’s motion for summary

adjudication, holding that HKS and Webcor have an immediate duty to defend Mission

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zu20.000032 + Opposition of Mission Place to Webcore/HKS Ex Parte Application
9933893.) for Order Extending Time to File Writ_

Place in the current action, HKS and Webcor now jointly seek a ten-day extension of time
to file their writ petition challenging this Court’s ruling, arguing they have had insufficient
time to prepare a brief. This Court should deny HKS and Webcor’s pending application
because the moving parties have failed to establish good cause and because a ten day
extension would result in prejudice to Mission Place.

(ID) Statement of Facts

In December, 2010, Mission Place brought a motion for summary adjudication

seeking a ruling on its seventh cause of action for declaratory relief on the issue of Webcor

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and HKS’s duty to defend and indemnify. Declaration of Jessica M. Lassere (“Lassere

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Decl.”), { 2. The motion was eventually heard on August 24, 2012, and after several hours

of oral argument, this Court ruled in favor of Mission Place. Lassere Decl., | 3. This Court

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held that the Beacon project’s original developer, Third and King Investors, LLC (“TKI”),
had validly assigned its Webcor-TKI and HKS-TKI contract rights to Mission Place, that

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those contracts bestowed on Mission Place certain indemnity and defense rights, and that

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Plaintiff's claims are encompassed by the various indemnity provisions such that Webcor

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and HKS now must provide Mission Place an immediate defense pursuant to the principles

set forth in Crawford v. Weather Shield Mfg., Inc., 44 Cal. 4th 541 (2008). Jd.

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On August 19, 2013, following a series of delays—including San Francisco

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Superior Court’s transition to an electronic filing system, judicial reassignments, and

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disagreement among the parties about the form of the order—this Court executed the order

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granting summary adjudication in favor of Mission Place. Lassere Decl., 4. Now, over

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one year after Mission Place’s summary adjudication motion was deemed granted, Webcor

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and HKS seek additional time to file a writ petition challenging this Court’s ruling, arguing

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they have not had sufficient time to prepare a writ. An extension of time, under the

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circumstances, would both violate the legislature’s intention in enacting the twenty-day

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jurisdictional limitation period and would prejudice Mission Place, as set forth below.
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LAW OFFICES 2
HAIGHT. BROWN ® | 7n0.000032 Opposition of Mission Place to Webcore/HKS Ex Parte Application
San Francisco 9933893.1 for Order Extending Time to File WritQUID Legal Argument

HKS and Webcor claim good cause exists for granting a ten day extension because
(1) the record relating to the summary adjudication motion is complex, “extensive and
voluminous;” (2) HKS and Webcor spent the first ten days after receiving the summary
adjudication order preparing another motion; (3) Webcor’s handling attorney was away on
vacation for the week following the entry of order; and (4) an extension will not prejudice
Mission Place.

A. —__HKS and Webcor have had ample time to review the record and

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prepare for an appeal

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While the twenty-day statutory period to file a writ under California Code of Civil

Procedure (“CCP”) section 437c(m)(1) did not begin to run until August 19, 2013, both

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HKS and Webcor have had a year to review the record and prepare their arguments based

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on this Court’s ruling and reasoning given at oral argument.

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The time for filing a wit petition under CCP section 437e(m)(1) lapses within 20

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days after service of a written notice of entry of the order. While it is true that HKS and

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Webcor were not served with written notice of the order granting summary adjudication

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until August 19, 2013, as a practical matter, the parties had the entire summary

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adjudication record at their disposal for over a year. Their argument that they have had

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insufficient time to prepare a writ is not credible. Most appellate court petitioners,

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preparing briefs more complex than the routine Crawford duty do defend currently at

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issue, do not have the unusual luxury of one year’s time to prepare a writ petition.

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Both HKS and Webcor were present at the August 24, 2012 hearing where this

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Court orally granted Mission Place’s motion for summary adjudication. Since

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approximately August, 2012, HKS and Webcor have been in possession of the summary

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adjudication hearing transcript, which contained this Court’s reasoning in granting Mission

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Place’s summary adjudication motion, all of the summary adjudication moving papers, and

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the evidence (e.g., the contracts at issue) which would support the moving parties’
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LAW OFFICES 3

HAIGHT. BROWN |) 71454 090932 + Opposition of Mission Place to Webcore/HKS Ex Parte Application

BONESTEEL., LLP. . i. . .
San Francisco 9933893.1 for Order Extending Time to File Writ1 | positions on appeal. As conceded by HKS and Webcor, the issues presented at the
summary adjudication hearing have already been extensively briefed.

Furthermore, HKS and Webcor’s quizzical claim that the court reviewed and
executed an order not in conformity with its own stated holding at oral argument has no

bearing on the fact that on August 19, 2012, both parties were given actual notice that

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6 | Mission Place’s summary adjudication motion was granted, and the reasoning in support
7 | thereof. HKS and Webcor have brought a separate motion for clarification and/or

8 | amendment and/or reconsideration to address their claim of non-conformity. The order is
9 | appealable on its face, and cannot be challenged based on what HKS and Webcor believe

10 | the court’s reasoning should have been.

ll B. HKS and Webcor mismanaged their time by spending the first ten days
12 after receiving the summary adjudication order preparing another

13 motion; this does not constitute “good cause”

14 HKS and Webcor argue, in essence, that good cause for an extension exists because

they were working on another motion instead of working on the writ petition. Further, they

argue that because Webcor’s lead attorney was on vacation the week the written order was

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17 | received, the moving parties could not properly prepare a course of action. These failures
18 | in time management do not constitute good cause, and given the prejudice which would be
19 | suffered by Mission Place, the application should be denied. As discussed, HKS and

20 | Webcor have had ample time—over a year—to consider their position on appeal.

21 C. An extension would be contrary to the legislature’s objectives and would
22 prejudice Mission Place
23 Not only have the moving parties not demonstrated good cause for an extension, but

24 | to grant an extension would controvert the legislature’s intention in enacting the twenty-
25 | day jurisdictional limitation period. Additionally, a ten day extension would prejudice
26 || Mission Place.

27 “[T]he purpose of the 20-day time limit is to prevent unnecessary delay when an

28 } interlocutory order is challenged . . .” Bensimon v. Superior Court, 113 Cal. App. 4th

LAW OFFICES 4

HAIGHT. BROWN Tp» o000032 Opposition of Mission Place to Webcore/HKS Ex Parte Application
San Francisco 9933893.1 for Order Extending Time to File Writmee

1257, 1259 (2d Dist. 2003) (internal citations omitted). The legislature set forth its position
that anything over twenty days (or thirty days maximum, with a discretionary extension)
would constitute an unnecessary delay.

Here, Mission Place has already been prejudiced by substantial delays. Lassere
Decl., € 5. One year ago, this Court ruled the moving parties HKS and Webcor were
contractually required to provide Mission Place with an immediate defense. To date,
neither HKS nor Webcor has contributed to Mission Place’s defense in the current action.

Jd. Additionally, months have now passed and the summary adjudication motion is no

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longer fresh in the minds of the moving parties. Webcor and HKS seek additional time to

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bolster their arguments against Mission Place on appeal. Mission Place would not be

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opposing Webcor and HKS’ application if it were not going to be prejudiced by a grant of

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additional time.

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Indeed it is HKS and Webcor that would not be prejudiced by denying their

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requested extension. If HKS and Webcor cannot timely file a writ petition, they will have a

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right to petition for appellate review should Mission Place prevail in court. See Eldridge v.
Superior Court, 208 Cal. App. 3d 1350, 1355-56 (Sth Dist. 1989).
D. This Court is without authority to grant HKS and Webcor’s requested

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eleven day extension of time

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Currently, HKS and Webcor’s writ petition must be filed no later than September

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12, 2013. The CCP provides, in relevant part: “The superior court may, for good cause,

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and prior to the expiration of the initial period, extend the time for one additional period

not to exceed 10 days.” CCP § 437c(m)(1)(emphasis added). Here, HKS and Webcor

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request an eleven-day extension, as September 22, 2013 is a Sunday. However, the express

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language of the governing statute provides that in no case can a discretionary extension of

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time exceed ten days. Should this Court grant HKS and Webcor’s joint application, it

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should limit the extension to ten days or fewer, in accordance with statutory authority.
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LAW OFFICES 5
HAIGHT BROWN ® TH o.oo0032 Opposition of Mission Place to Webcore/HKS Ex Parte Application
San Francisco {f 9933893.1 for Order Extending Time to File Writ1 (IV) Conclusion

2 The one-year delay in HKS and Webcor’s receipt of the written order granting
3 | Mission Place’s summary adjudication motion is exceptional. Under its sound
4 | discretionary authority, this Court should deny HKS and Webcor’s joint application for a
5 | ten-day extension, as they have failed to establish good cause and as delay would result in
6 | further prejudice to Mission Place.
7 || Dated: September 9, 2013 HAIGHT, BROWN & BONESTEEL, LLP
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By:
11 Steven M. Cvitanovic
Jessica M. Lassere
12 Attorneys for Defendants
Mission Place LLC; Mission Place Mezz
13 Holding LLC; Mission Place Mezzanine
LLC; Mission Place Partners LLC;
14 Centurion Real Estate Investors IV, LLC;
and Centurion Real Estate Partners, LLC
15 (sued in its own name and erroneously
6 sued as Centurion Partners LLC)
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LAW OFFICES 6
HAIGHT, BROWN & Opposition of Mission Place to Webcore/HKS Ex Parte Application
BORESTERL LUE sna for Order Extending Time to File Writ