arrow left
arrow right
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview 
						
                                
Preview

                                NOOR

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Apr-22-2013 3:08 pm

Case Number: CGC-08-478453
Filing Date: Apr-22-2013 3:07
Filed by: DANIAL LEMIRE
Juke Box: 001. Image: 04026700
ORDER

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

001C04026700

Instructions:
Please place this sheet on top of the document to be scanned.eisco County ‘Superior Court

APR 22 2013

CLERKOF couRT
BY: Deputy Care

San Fran

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY
ASSOCIATION,

Plaintiff,
vs.

CATELLUS THIRD AND KING LLC, ET
AL.

Defendants.

Case No. CGC — 08-478453

ORDER GRANTING IN PART AND
DENYING IN PART MOTIONS OF
CERTAIN SUBCONTRACTORS FOR
SUMMARY ADJUDICATION OF
SEVENTH CAUSE OF ACTION

By order dated April 2, ] granted the motions of certain defendants for summary

adjudication of the seventh cause of action. Here, I treat the like motions of certain.

subcontractors, Cupertino Electric, Creative Masonry, Carefree Toland Pools, J.W.

McClenahan, Van-Mulder Sheet Metal, N.V. Heathorn, Critchfield Mechanical, Blue’s

Roofing Company, West Coast Protective Coating, Allied Fire Protection, and Western

Roofing Service. The captioned motions came on regularly for a hearing April 18, 2013,

and the parties appeared through counsel.

The background of this case, and my basic reasoning, is discussed in my April 2

order, and not repeated here. At the argument on the present motions, plaintiff spent itstime essentially re-arguing the April 2 order, while conceding that the time for
reconsideration under C.C.P. § 1008 has past. I decline the suggestion that I reconsider
on my own motion (if Thad accepted the suggestion, I would in any event have had to
issue notice to the parties affected and set the matter down for a further hearing).

The present motions seek to have me rule that the contract between the prime
contractors the subcontractors are not susceptible of a reading that creates plaintiff as a
third party beneficiary. The moving papers note that Webcor entered into a series of
“almost identical subcontracts,” Memorandum of Points And Authorities, signed
November 1. 2012 at 1. While I had postponed the hearing on these motions to allow
plaintiff time to consider late filed declarations which among other things authenticated
those subcontracts, none was ever filed with respect to subcontractors N.V. Heathorn and
West Coast Protective Coating, and accordingly, while the issues may be exactly the
same with respect to those entities, I am unable to grant the requested relief.

With respect to the remaining moving parties, the motion is granted, for reasons
stated in my April 2 order. As I suggested there, the issue is whether the asserted
beneficiary is intended or incidental. 1 B. Witkin SUMMARY OF CALIFORNIA Law,
Contracts § 687 ef seq. (10" ed. & 2009 supp.).! ‘The undisputed evidence is enough to
shift the burden to plaintiff to show some evidence that the parties—the subcontractors
and the prime contractor—actually intended to benefit the third party, id. at § 688. But
there is no such evidence. As I noted in my earlier order, while there is some evidence

(extending all inferences against the moving parties here) that the contracting parties

* at argument, plaintiff's counsel suggested my earlier ruling missed the mark as it insisted that the third
party beneficiary be “express” in the sense of explicitly set forth in the contract. | agree with counsel that
this is not required, and | did not mean to suggest it. | agree that the distinction for present purposes is
between intended and or incidental beneficiaries. But by the very same token, plaintiff's suggestion at
argument, that third party beneficiaries are created when contracts contemplate the possibility of their
existence, eviscerates the distinction between “intended” and “incidental”.thought there was a possibility that there might be future owners, that is not enough to
show an intent to benefit those inchoate owners, much less the plaintiff here—which is

not even one of those owners, but a homeowners’ association.

Conclusion
The motions of N.V. Heathorn and West Coast Protective Coating are denied. The
motions of the remaining moving parties for summary adjudication in their favor of the

seventh cause of action of the third amended complaint are granted.

Dated: April 22, 2013