Exhibit,Appendix: 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
42100 Wilshire Boulevard, Suite 1125 ELECTRONICALLY
Los Angeles, CA 90025-7117 s F I L ED
Telephone: 310/870-4080 County of San Francisco
acsimie: ° AUG 12 2013

Attorneys for Defendant, HKS, ING, individually and dba HKS ARCHITECTS, IN@C'eNK of the Court

Deputy Clerk

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

BEACON RESIDENTIAL COMMUNITY
ASSOCIATION,

Case No. CGC 08-478453

Plaintiff, EXHIBITS TO THE DECLARATION OF
NOEL E. MACAULAY RE: PROPOSED
ORDERS RE: MOTION FOR SUMMARY

ADJUDICATION RE DUTY TO DEFEND

Vv.

Defendants.

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)

)

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CATELLUS THIRD AND KING LLC, etal. )
)

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}

AND RELATED CROSS-ACTIONS )
)

EXHIBITS TO THE DECLARATION OF NOEL E, MACAULAY RE: PROPOSED ORDERS RE:
MOTION FOR SUMMARY ADJUDICATION RE DUTY TO DEFENDEXHIBIT BNoel Macaulay

From: Noel Macaulay 
Sent: Tuesday, November 20, 2012 12:59 PM
To: ‘Cyitanovic, Steven’; ‘ghanson@gordonrees.com’
Subject: RE: Beacon: Proposed order
Steve:

Actually, the judges last words were, literally, “And, therefore, precisely what ! declare should be pinned
down. And {’'m not ready to do that today in light of the arguments made. Alt right?” (Transcript, pgs. 85 (23) ~ 86 (2)}.

Steve, we can certainly submit competing orders, and submit letter briefs as to why each of us believes that his
iteration accurately reflects Judge Kramer comments on the record, but I do believe we should try, at least, to reach a
meeting of the minds. In all fairness, the Mission Place entities did not seek the kind of abstract statement ofa duty
within the matters to be embraced that you now indicate they did. To quote directly from your moving papers:

4. “Issue No. 1: This Court should declare under the Seventh Cause of Action for Declaratory Relief that
Webcor has a duty to defend Mission Place LLC against the claims asserted by the Beacon RCA”. (Bolding
in the original, italicization added) [Notice, pg. 3 (5-7); Separate Statement of Undisputed Facts, pg. 2 (16-
18).

2. “Issue No. 2: This Court should declare under the Seventh Cause of Action for Declaratory Relief that HKS
has a duty to defend Mission Place LLC against the claims asserted by the Beacon RCA”. (Bolding in the
original, italicization added} [Notice, pg. 3 (15-17); Separate Statement of Undisputed Facts, pg. 9 (10-12)].

3. “Issue No. 3: This Court should declare under the Seventh Cause of Action for Declaratory Relief that
Webcor has a duty to defend [Mission Place related entities against the claims asserted by the Beacon
RCA”. (Bolding in the original, italicization added) [Notice, pg. 4 (1-5}; Separate Statement of Undisputed
Facts, pg. 15 (2-6)}

4. “Issue No. 4: This Court should declare under the Seventh Cause of Action for Declaratory Relief that HKS
has a duty to defend [IMission Place related entities against the claims asserted by the Beacon
RCA". (Bolding in the original, itaficization added) [Notice, pg. 4 (18-22); Separate Statement of Undisputed
Facts, pg. 23 {7-12}}

This is also how the matter was treated in the motion:

1. “Ajudicial declaration is necessary to answer the simple but important question of whether Cross-
Defendants must defend Cross-Complainants from the claims presented by the Beacon Residential
Community Association ....." (emphasis added) {Memorandum of Points and Authorities, “Introduction and
Summary of Argument”, pg. 4 (9-11)}

2. “After that analysis is committed, Cross-Complainants believe this Court will find no material dispute will
axist and that Cross-Defendants must defend Cross-Complainants in this action.” [Memorandum of Points
and Authorities, “introduction and Summary of Argument”, pg. 1 (14-16)}

Steve, | am not trying to be difficult, but Judge Kramer did not rule that there was a duty to defend the
claims asserted by Missian Place in this action. He did not do so, because on this evidentiary record, he could
not do $0, particularly given the numerous arguments which could not be addressed at that juncture and on that

ievidentiary record. instead, | believe that Judge Kramer was trying to achieve substantial justice and do what he
could with what he had. The parties had spent a tremendous amount of time in briefing the motion. Clearly,
Judge Kramer felt that Mission Place had established a number (but not ail} of contested factual predicates to
the relief it sought, and that a number (but not all) of the arguments that had been raised by the defendants
could be disposed of, as a matter of fact and law. Clearly, the Court also felt that a number of the other
arguments raised by the defendants were potentially meritorious, or at least couid not be resolved at that
juncture. As such, the Court disposed of the arguments and contentions that it felt could be resolved, and held
simply that as a matter of law, a duty to defend exists to defend such matters as are embraced by the indemnity
clause, without stating that any of the claims were actually covered by the indemmity clause, That finding is not
an assertion that there is “a duty to defend against the claims asserted by BRCA”.

Judge Kramer was clearly determined to adjudicate what he felt he could, to the extent that he could, even
if it meant using his equitable powers to redefine what was being adjudicated. Frankly, if he had not done so,
the motion would have had to be denied. If you insist that the order reflect that the motion was “granted”,
without limitation, then Judge Kramer would be within his rights to simply deny it out of hand, and if an order
was signed without such limitation, then it will be challenged, first via writ and, should such be denied, later on
appeal — and such would almost certainly be overturned/reversed. What choice would we have, under such
circumstances? Of course, } do not think that Judge Kramer would sign such an order, given his comments and
clear statement of what he was ruling upon.

i don’t want to spend too much time on this one issue, but it is an important one.

Noel

From: Cvitanovic, Steven [mailto:scvitanovic@ HBBLAW.com]
Sent: Tuesday, November 20, 2012 11:22 AM

To: 'Noel Macaulay; ghanson@gordonrees.com

Subject: RE: Beacon: Proposed order

judge kramer said at page 80 at the end of the hearing “tentative ruling stands." my motion was granted. period. it
wasn't granted in part; it wasn't denied; it wasn’t modified. we asked the judge in our notice to rule that the beacon's
claims under issues 1 and 2 were those "within the scope of the indemnity agreements.” that’s a direct quote from my
notice. the judge said at pages 11 and 12 of the transcript that there are claims covered by the indemnity agreements, but
he didn't rule that all of them were. your order watered it down so much that his ruling wouldn't be good for anything. if
you insist on having your language below, then having a cail will be pointless. you will have my revisions as soon as
peter's office gives them to me.

Steven Cvitanovic
Partner

D: 415.281.7608
scvitanovic@hbblaw.com

Haight

Haight Brown & Bonesteel, LLP
71 Stevenson Street20th Floor

San Francisco, CA 94105
O: 415.546.7500

F: 415.546.7505

www. hbblaw.com

‘The contents of this email message and its attachments are intended solely for the acdressee(s) hereof, This email transmission may be confidential and it may be
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Noel Macaulay {mailto:nmacaulay@sj-law.com
Sent: Tuesday, November 20, 2012 11:11 AM

To: Cvitanovic, Steven; ghanson@gordonrees.com
Subject: RE: Beacon: Proposed order

Steve:

| will read the transcript over again, but | assure you that the modifications | made to your order were
warranted by the transcript. in that regard, please remember that what is critical is not the initial reading of
the tentative ruling, but what Judge Kramer indicated his ruling was at the end. There were hours of oral
argument which took place, and the Court acknowledged and addressed the concerns of the defendants in
modifying its tentative ruling.

To give but one example, you indicated that there was no basis to assert that the motion was only
granted, in part. That is not so. Your motion for summary adjudication was very clear; it requested orders
that Webcor (and HKS) “has a duty to defend Mission.... against the claims asserted by the Beacon RCA"
{emphasis added) [Notice of Motion, pgs. 3 (6-7, 16-17), pg. 4 (4-5, 21-22)]. That is what you sought - an
unequivocal and unlimited statement that there was a duty to defend the (not some unspecified,
indeterminate, possible or contingent) claims asserted. The Court made it crystal clear that it was not, and
could not at this time, make any such finding. Moreover, | raised this very point in oral argument [Transcript,
pg. 66 (10}-67 (24), during which time the Court indicated it was not bound by the scope of the request in the
motion, under equity (also referencing Sir Thomas Moore), but could redefine and limit the relief requested
and obtained. Steve, if the Court did not give you the relief requested in the motion - and it did not - then the
motion was not simply "granted"; at most, it was “granted, in part” (and, of necessity, “denied, in part”).

By the way, | have not yet received the modified order you referenced. Also, | have a (very) slightly
modified version of the order that reflects some subsequent input from other attorneys for HKS, which |
attach for your review. The changes are not substantive.

Given Greg’s schedule, would it make sense to change the discussion time?

Thanks

NoelKK >

noo Original Message-----

From: Cvitanovic, Steven [mailto:scvitanovic@HBBLAW.com]
Sent: Tuesday, November 20, 2012 8:56 AM

To: ghanson@gordonrees.com; nmacaulay@sj-law.com
Subject: Re: Beacon: Proposed order

Three weeks ago | asked Noel to draft an order to hopefully bridge the gap. He sent his over but his order was
almost as long as mine. The one | sent yesterday was my mark up of his order. | would like for it to be more
simple too, but the practice guide guards against that approach. I'm open to suggestions.

Sent from my Verizon Wireless Phone

From: "Gregory Hanson” 
Date: Tue, Nov 20, 2012 8:45 am
Subject: Beacon: Proposed order

To: "Cvitanovic, Steven" , "Noel Macaulay" 

Steve,

Where is the order where you "put things back"? | can't review an order | don't have. | really don’t want to
fight with you over this. .. although we may disagree. I'm having trouble understanding why we need a 12
page order to say that the MSA was granted in that Webcor and HKS have a duty to defend Mission Place
subject to the limitations in their respective contracts.

Greg

From: Cvitanovic, Steven [mailto:scvitanovic@HBBLAW.com]

Sent: Monday, November 19, 2012 5:41 PM
To: ‘Noel Macaulay’; Gregory Hanson
Subject: Beacon: Proposed order

hi,

i'm having peter laufenberg's office review my revisions to the proposed order and | would like to have a call
tomorrow at 4pm to discuss it.as i mentioned to noel a few minutes ago, noel's order watered down things too much. i put things back to
where they should be based upon my review of the transcript. while the judge didn't say which claims were
covered, he did say that something was. look at pages 11, 12 and 25.

plus the judge's ruling wasn't limited. he granted exactly what we asked for, which was that he said there is an
immediate duty to defend those matters within the scope of the indemnity obligation. he founds such claims
existed, although he didn’t specify which ones. the order read as if there were no such claims, and that's not
what happened or what he said.

that's generally how i approached it and i will get you the order as soon as i get it back from peter’s office.

steve

Steven Cvitanovic
Partner

D: 415.281.7608
scvitanovic@hbblaw.com

[cic:845014216@20112012-2E4B]

Haight Brown & Bonesteel, LLP

71 Stevenson Street

20th Floor

San Francisco, CA 94105

O: 415.546.7500

F: 415.546.7505

www. hbblaw.com

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