On August 08, 2008 a Order was filed involving a dispute between Beacon Residential Community Association, Catellus Commericial Development Corp., Catellus Development Corporation, Catellus Operating Limited Partnership, Catellus Residential Construction, Inc., Catellus Third And King Investors Llc, Catellus Third And King Llc, Catellus Urban Development Corporation, Catellus Urban Development Group, Llc, A Delaware, Centurion Real Estate Investors Iv,Llc, Centurion Real Estate Partners, Llc, Mission Place Llc, Mission Place Mezzanine Llc, Mission Place Mezz Holdings Llc, Mission Place Partners Llc, Prologis, Shooter & Butts, Inc., Third And King Investors Llc, Third And King Investors, Llc, A Delaware Limited, Thyssenkrupp Elevator Corporation (Erroneously, Webcor Builders,Inc, Webcor Construction Inc., Webcor Construction, Inc Dba Webcor Builders, Window Solutions, Inc., and All Defendants See Scanned Documents, Allied Fire Protection, Anning-Johnson Company, Architectural Glass & Aluminum Co., Inc, Blue'S Roofing Company, Carefree Toland Pools, Inc., Catellus Commerical Development Corporation, Catellus Commericial Development Corp., Catellus Development Corporation, Catellus Operating Limited Partnership, Catellus Residential Construction, Inc., Catellus Third And King Investors Llc, Catellus Third And King Llc, Catellus Urban Development Corporation, Catellus Urban Development Group, Llc, A Delaware, Catellus Urban Development, Llc, Centurion Partners, Llc, Centurion Real Estate Investors Iv,Llc, Centurion Real Estate Partners, Llc, Creative Masonry, Inc, Critchfield Mechanical, Inc., Cupertino Electric,Inc., Does 1 Through 200, Does 52-200, Inclusive, F. Rodgers Corporation, F. Rodgers Corporation (Fka F. Rodgers Insulation, F. Rodgers Insulation Residential, Inc., Hks Architects, Inc, Hks, Inc, Hks, Inc Individually And Dba Hks Architects, Inc, J.W. Mcclenahan Co., Mission Place Llc, Mission Place Mezzanine Llc, Mission Place Mezz Holdings Llc, Mission Place Partners Llc, N.V. Heathorn, Inc., Poma Corporation, Prologis, Roofing Constructors, Inc. Dba Western, Shooter & Butts, Inc., Skidmore Owings & Merrill Llp, Skimore Owings & Merrill Llp, Third And King Investors Llc, Thyssen Krupp Elevator Corporation, Thyssenkrupp Elevator Corporation (Erroneously, Thyssenkrupp Elevators Corporation, Tractel Inc., Van-Mulder Sheet Metal, Inc., Webcor Builders,Inc, Webcor Construction Inc., Webcor Construction, Inc, Webcor Construction, Inc Dba Webcor Builders, Webcor Construction Inc.,Individually And Doing, Webcor Construction Lp Individually And Dba Webcor, Webcor Construction Partners Llc, West Coast Protective Coatings, Inc., Western Roofing Service, Window Solutions, Dba Window Solutions, Inc., Window Solutions, Inc., for CONSTRUCTION in the District Court of San Francisco County.
For full print and download access, please subscribe at https://www.trellis.law/.
Please wait a moment while we load this page.
Preview
UA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Apr-10-2013 3:13 pm Case Number: CGC-08-478453 Filing Date: Apr-02-2013 10:19 Filed by: SHAWNA VANTREE Juke Box: 001 Image: 04000725 ORDER BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al 001004000725 Instructions: Please place this sheet on top of the document to be scanned.San ‘LEED APR 02 2013 CLERK,OF THE;COQURT BY: Deputy Clerk 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. The captioned motions came on regul parties appeared through counsel. Introduction Case No. CGC — 08-478453 ORDER GRANTING MOTIONS OF WEBCOR AND ANNING-JOHNSON COMPANY FOR SUMMARY ADJUDICATION OF SEVENTH CAUSE OF ACTION arly for a hearing March 29, 2013, and the This construction defect case relates to a residential and commercial complex located at 250-260 King Street in Mission Boy. Beacon was originally owned by Prologis/Catellus and related entities. Webcor Builders, Inc. (and related entities) was the project’s general contractor. Webcor in turn hired a number of subcontractors. Catellus rented out Beacon’s residential and commercial units, but eventually sold the building to Mission Place which in turn sold units to the public.Plaintiff, Beacon Residential Community Association, alleges that Beacon is plagued by defects that have resulted in substantial “solar heat gain” inside the residential units. Plaintiff sued Catellus, Mission Place, Webcor, the project architects, and the subcontractor defendants. Webcor, Anning-Johnson Company (a subcontractor), and another group of subcontractor defendants (Cupertino Electric, Inc., Creative Masonry, Inc., Carefree Toland Pools, Inc., J.W. McClenahan, Inc., Van-Mulder Sheet Metal, Inc., N.V. Heathorn, Inc., Critchfield Mechanical, Inc., Blue’s Roofing Company, West Coast Protective Coatings, Allied Fire Protection, and Western Roofing Service) now move for summary adjudication of Plaintiff's seventh cause of action alleging breach of contract on the basis of third party beneficiary status. Moving parties assert that there is no evidence that the homeowners association and the commercial|owners association are third party beneficiaries of the “prime” construction contract whe, Catellus and Webcor or the subcontracts entered into between Webcor and the sfocomtactor defendants. (Together I will call these the ‘contract,’ as the issues do not di r Preliminary Matters Plaintiff noted that the February 8, 2013 Bledsoe declaration had not been filed with the moving papers. I noted that other declarations had apparently not been filed, and that courtesy copies of them were unsigned and undated. These defalcations affected the evidentiary record as it pertained to moving parties aside from Webcor and Anning- Johnson, and the at the request of plaintiffs I postponed the hearing on those motions to April 10, 2013 and moved ahead to treat the merits of the motions brought by Webcor and Anning-Johnson. Although this ought not to have been necessary, I have instructedparties never to provide courtesy copies of motion papers unless the original is signed and filed. Discussion I provided an oral tentative decision on the record (including rulings on evidentiary issues) at the hearing, and for the reasons stated there and as amplified here, the motions for summary adjudication as to the seventh cause of action are granted. As I noted at the outset of the hearing, the motions are uncontested insofar as they seek a ruling on the ‘successor-in-interest’ basis for liability. I turn to the third party beneficiary theory of contractual liability. The issue is whether there is a disputed issue of material fact regarding the plaintiff's status as a third party beneficiary in the contract. C.C. § 1559 permits such status on a showing that that the contract was made “expressly for the benefit of a third person”. 1 first look at the language of the contract, which is plain on its face that the parties contemplated renting the premises; they did not intend to build for owners at all, much less owners as a beneficiary of the agreement. Indeed, none of the parties to the contract sold any units to owners; rather, the units were, as the contract expressly contemplated, rented. Some of the plaintiffs here—and, specifically, the one opposing this motion, ie., the Association—did not even exist at the time the contract was made. To be sure, as the Association points out, the specific person or entity need not be expressly called out in the contract to be a beneficiary, Johnson v. Superior Court, 80 Cal.App.4" 1050, 1064 (2000), and so we may look to see if owners generally, or as a group, are called out; but nevertheless we do need something that, in the language of thestatute, “expressly” makes the group or class beneficiaries. We do not find it.! Plaintiffs notes Ex. A-1 to the prime contract, which suggests that the parties thought that in the future there might be sales of condominiums, if market conditions were favorable.” The recognition of a possibility is not equivalent to an expectation that the possibility will occur with any likelihood, and much less is it the expression of an intent that, were the possibility to eventuate, the future owners are meant to be beneficiaries of the contract. Contracts make provisions all the time for highly undesirable or unlikely eventualities such as impacts from regulators, taxing authorities, municipalities, and so on, but that does not ipso facto make those parties beneficiaries of the contract. Even a recognition that someone might benefit from a contract (and we do not have even that here), such neighbors’ enjoyment of a renovation project, is not enough to have them actually be third party beneficiaries with the power to compel performance of the agreement. The point here is that those incidentally benefitted cannot sue; the deal has to have been entered into for the benefit of the third party. 1 B. Witkin, Summary OF CALIFORNIA LAW, Contracts § 689 (10th ed. supp. 2009). Here, the parties to the agreement entered into it to make money for themselves; there is no evidence they cared one whit for future owners. As I said at the hearing, plaintiffs provided me with no argument as to why I should look outside the contract, but even were I to do so, the result would not change. The only extrinsic fact noted is that Catellus purchased an Owner Controlled Insurance Program (OCIP) or “wrap-up” insurance policy covering the project and that Webcor and } Plaintiffs respond that in effect there was a covert intent to sell, presumably to shield the originally contracting parties from the claims of the future owners, hidden behind devices to sell to intermediaries who would later sell to owners including those now represented by the plaintiff here. Such seems quite at odds with an original contractual provision “expressly for the benefit” of these owners. 2 The “Project Description” contained in the prime contract states: “AJL 595 residential units are currently intended to be rental, however, the entire project will be mapped for condominium purposes, providingthe subcontractor defendants agreed to pay a portion of the costs of that policy. This is purportedly explained, and inferences made from the event, by the declaration of Shim, but I have sustained the objections to the declaration: it is without foundation, including any foundation that the declarant is qualified to render an opinion in the area, and it merely speculates as to the reasons these parties had for securing the insurance.’ Neither the Shim declaration, nor the OCIP policy, gives rise to the inference that the contract contemplated the owners as third party beneficiaries. Plaintiffs cite Gilbert Financial Corp. v. Steelform Contracting Co., 82 Cal App.3d 65, 69-70 (1978). But here, as opposed to Gilbert, the homeowners association is not the original building owner; it is far removed from the original owners in the chain of sales. Defendants note Landale-Cameron Court, Inc. v. Ahonen, in which the court rejected a homeowners association’s claim that it was a third-party beneficiary of a contract between a builder-developer and a contractor. 155 Cal.App.4th 1401, 1410- 11 (2007). The court emphasized that the homeowners association was not in existence when the contract was signed; that the contractor didn’t know the building was intended to be a condominium; and that “as a matter of law this project was not a common interest development at the time the contract was signed because the CC&Rs had not yet been recorded.” /d, It rejects the third party beneficiary argument. So too here. Finally, there is plaintiff's invocation of the venerable Schell v. Schmidt, 126 Cal. App.2d 279, 290 (1954). But Schel? involved special legislation which manifested the parties’ intent to benefit the veterans for whom the homes were built. Martinez v. Catellus with the flexibility to convert residential rental units to for-sale units in the event it becomes financially beneficial to do so.” (Brians Del. Ex. B at Ex. A-] (CAT 032323).) * At argument the Association asked me to allow it to either name another expert, or perhaps provide further materials on Shim’s qualification, together with making him available for deposition, so as to buttress their evidentiary showing. This is in effect a request for a continuance to enable the collection ofSocoma Companies, Inc., 11 Cal.3d 394, 403 (1974). There is nothing like that in the present case. Conclusion The motions of Webcor and Anning-Johnson for summary adjudication in their favor of the seventh cause of action of the third amended complaint are granted. Dated: April 2, 2013 “en itis E.A. Karnow Judge Of The Superior Court additional materials to oppose the motion, and is governed by C.C.P. § 437c(h). None of the predicates for relief under that section is met by the Association’s oral suggestion, and I reject it.