Motion,Ex Parte: BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                Steven H. Schwartz, Esq., SBN 94637

Noel E. Macaulay, Esq. SBN-424695

SCHWARTZ & JANZEN, LLP ELECTRONICALLY

12100 Wilshire Boulevard, Suite 1125 FILED

Los Angeles, CA 90025-7117 Seperer Court of Cal [ornia,

Telephone: 310/979-4090

Facsimile, 310/207-3344 MAR 27 2043
Clerk of the Court

Attomeys for Cross-Defendant HKS, INC., BY: VANESSA WU

individually and dba HKS ARCHITECTS, INC. Depuly Clerk

SUPERIOR COURT OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY CASE NO.: CGC 08-478453

ASSOCIATION,
Assigned to Hon. Curtis Karnow
Plaintiff, Dept. 304

HKS, INC.’S STATEMENT RE: PLAINTIFF'S
MOTION TO SEVER CLAIMS AND SPECIALLY

‘s SET MATTER FOR TRIAL
CATELLUS THIRD AND KING LLC, et al, DATE: Apri 10, 2013
TIME: 10:00 a.m.
Defendants.
DPT: 304

HKS, Inc. individually and dba HKS Architects, Inc. (“HKS”) neither supports nor opposes plaintiff's
motion to sever. It does, however, wish to bring to the Court's attention several relevant observations.
First, this motion, to the extent that it purports to seek a severance of plaintiff's claims against HKS and
SOM, would appear to be a nullity. That is, the architectural defendants have a judgment in their favor.
While the claims were reinstated by the Court of Appeal, the California Supreme Court accepted the case
for review and the Court of Appeal opinion is null and void. Therefore, until such time as the California

Supreme Court has heard the matter and issued its opinion and remittitur issues thereafter, the

1162.006/ HKS Statement of Position re Plaintiffs Motion to Sever Claims.and Get Matter for Trial
HKS, INC.'S STATEMENT RE: PLAINTIFF'S MOTION TO SEVER CLAIMS AND SPECIALLY SET MATTER FOR TRIALarchitectural defendants are not before the Court on the operative complaint and there is nothing fo sever’.
Had this portion of the motion been brought to sever aif claims against HKS (to wit, the Mission Place
cross-complaint), then and only then would it make sense. However, that is not the motion plaintiff has
broughi.

Second, HKS wouid note that the assertion that trial would be shortened if the design professionals
were not there as defendants is incorrect. Contrary to what has been asserted, the same issues, evidence
and witnesses will be presented at a trial without HKS and SOM as defendants as will be presented in any
trial with them as defendants. That is, alleged negligent design is one of the predicates pled against the
primary defendants ~ the various groups of developer entities, As developers/buiiders/seliers, they are
potentially liable for the acts of the general contractor, the subcontractors and the design professionals.
Plaintiff has never forswom any intent to present such assertions, evidence and opinion testimony at trial.
As for plaintiff's suggestion that it could simply rely upon the first cause of action, for violation of
performance standards, that too is simply unworkable; not only is alleged negligent design one of the
assertions rotely made in the first cause of action, but inasmuch as this is, in all likelihood, a condominium
conversion, $.B. 800 would not apply’. There has been no adjudication of this critical issue, and it may wel
be a matter for the jury. Thus, plaintiff would have, as a practical matter, no choice but to proceed on all of
its causes of action and under all theories, without reducing the length of trial one jota*. Nor Is this all.

HKS is a cross-defendant on the express indemnity claim of the Mission Place related parties. Plaintiff

+ Moreover, even if it was theoretically possible to “sever” plaintiff's claims, until the issuance of remittitur,
the trial court is divested of any jurisdiction over the claims, making such an order impossible.

> See e.g. Third Amended Complaint, second cause of action ("Negligence Per Se" - Title 24 calculations),
sixth cause of action (Breach of implied Warranty" ~ warranty that project was .... “designed .. ina
reasonably workmanlike manner’), etc.; even the first cause of action, for "Violation of Performance
Standards” is rife with assertions of negligent design.

* The units were intended by the developer to be used as apartments, and until the sale of the project from
Catellus to Mission Place, were rented out as apartments, Moreover, some of the design and/or
construction contracts specifically reference the intent and purpose of the development to be apartments.

+ Plaintiff suggests that it would not need to call experts re the design professional's failure to comply with
the standard of care if the trial is severed, Frankly, it is unclear how plaintiff could present evidence of
negligent design without referencing the applicable standard of care ~ whether or not the design
professionals are mentioned by name.

1462.006// HKS Statement of Position re Plaintiff's Motion to Sever Claims and Get Matter for Triai

HKS, INC.'S STATEMENT RE: PLAINTIFF'S MOTION TO SEVER CLAIMS AND SPECIALLY SET MATTER FOR TRIALdoes not seek to sever this portion of the case, so HKS would be present throughout at least a portion of
the trial anyway. Moreover, to prevail on the particular express indemnity provision at-issue, Mission Place
would have to demonstrate the existence of misconduct, breach of the contract, or a “negligent act, error or
omission” on HKS' part. Thus, the same experts and witnesses may well be presented.

The “severance” of HKS and SOM as defendants from any trial would not decrease the issues or
evidence presented. Any second trial would also be extensive. Moreover, there remains the real possibility
of inconsistent verdicts and results, even though the same issues would likely be addressed in each trials.

As noted, HKS is neither supporting nor opposing plaintiff's motion. However, In light of these
observations, it would suggest that if the Court is inclined to grant the motion in any particular, careful
consideration must be given to either expanding the scope of any severance and/or issuance of certain

orders conditioning the same upon a limitation upon the evidence, issues and testimony to be presented by

plaintiff at trial on design issues, so as to effectuate the stated rationale for the relief sought.

DATED: March 27, 2013 SCHWARTZ & JANZEN, LLP

BLE

By:

STEVEN H. SCHWARTZ, ESQ
NOEL E. MACAULAY ESQ.

Attorney of Record for HKS, INC. dba
HKS ARCHITECTS, INC.

® For example, if HKS prevails on any express indemnity claim by Mission Place in the first trial, plaintiff
may well assert that such is not relevant to any second trial, because (a) it did not present testimony
directly naming HKS, and (b) HKS has defenses, vis-a-vis Mission Place, that are not necessarily
applicable to any claim by plaintiff.

1162.006/ HKS Statement of Position re Plaintiff's Motion to Sever Claims and Set Matter for Trial
HKS, INC.’S STATEMENT RE: PLAINTIFF'S MOTION TO SEVER CLAIMS AND SPECIALLY SET MATTER FOR TRIALSCHWARTZ & JANZEN

PROOF OF SERVICE
Beacon vs. Galsllis etal.
San Francisco County Superior Court Case No. CGC 08-478453
STATE OF CALIFORNIA
3s.
COUNTY OF SAN FRANCISCO
1, Marilyn C. Leslie declare: | am a resident of the State of Califomia and over the age of eighteen
years, and not a party to the within action; my business address is 12100 Wilshire Boulevard, Suite 1125,
Los Angeles, CA 90025-7117. On March 27, 2013 | served the within documents:
* HKS, INC., STATEMENT RE: PLAINTIFF'S MOTION TO SEVER CLAIMS AND SPECIALLY SET
MATTER FOR TRIAL
by transmitting via facsimile a true copy of said document from facsimile machine whose
number is 310/207-3344, pursuant to California Rules of Court, Rule 2.306, The facsimile
machine | used complied with Rule 2.304(3) and no error was reported by the machine.
BY E-MAIL OR ELECTRONIC TRANSMISSION: By electronically transmitting the
document(s) listed above to LexisNexis File and Serve, an electronic service provider at
www, fileandserve.lexisnexis.com pursuant fo the Court's June 1, 2007 Order mandating
| electronic service. The transmission was reported as complete and without error.
i declare under penalty of penny under the laws of the State of California that the above is true and
correct. Executed on March 27, 2013 at Los Angeles, California.
Marilyn i Leslie é
1162.006
PROOF OF SERVICESERVICE LIST

Ann Rankin, Esq. Kenneth Katzoff, Esq.
Terry Wilkens, Esq. Robert R. Riggs, Esq.
LAW OFFICES OF ANN RANKIN Sung E. Shim, Esq.

3911 Harrison St

Oakland, CA 94611-4536
Phone Number (510) 653-8886
Fax Number (510) 653-8889
arankin@annrankin.com
{wilkens@annrankin.com

Attorneys for Plaintiff BEACON RESIDENTIAL
COMMUNITY ASSOCIATION

KATZOFF & RIGGS

1500 Park Ave #300
Emeryville, CA 94608

Phone Number (510) 597-1990
Fax Number (510) 597-0295
kkatzoff@katzoffriqgs.com
triggs@kalzofiriggs.com
sshim@katzoffrigas.com

Attorneys for Plaintiff BEACON RESIDENTIAL
COMMUNITY ASSOCIATION

Peter J. Lautenberg, Esq.
Charles A. Hansen, Esq.

Gregory Jung, Esq.

WENDEL, ROSEN, BLACK & DEAN
74 Stevenson Street — 20 Floor
San Francisco, CA 94105-2984
(510) 834-6600/FAX (510) 834-1928
plaufenberg@wendel.com

GJung@wendel.com

Chansen@wendel.com

Attorneys for Defendants and Cross-Complainants
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.

Steven M. Cvitanovic, Esq.
Robert D. Tobey, Jr., Esq.

HAIGHT, BROWN & BONESTEEL
71 Stevenson Street, 20th Floor
San Francisco, CA 94105-2981
(415) 546-7500/FAX (415) 546-7505
scvitanovic@hbblaw.com
tlobey@hbbiaw.com

Co-Counsel 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.

John A. Koeppel, Esq.

Todd J. Wenzel, Esq.

ROPERS, MAJESKI, KOHN & BENTLEY PC
201 Spear Street, Suite 1000

San Francisco + CA + 94105-1667

Office: a 5) 543-4800

Fax: (415) 972-6301

TWenzel@mkb.com

JKoeppel@rmkb.com

Attomeys for Defendants 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

David S. Webster, Esq.

Mark J. D’Argenio, Esq.

WOOD, SMITH, HENNING & BERMAN LLP
1401 Willow Pass Road, Suite 700
Concord, CA 94520-7982

(925) 356-8200/FAX (925) 356-8250
dwebster@wshblaw.com
mdargenio@wshblaw.com

Attomeys for Defendants PROLOGIS; THIRD AND
KING INVESTORS LLC; CATELLUS URBAN
DEVELOPMENT CORPORATION; CATELLUS
DEVELOPMENT CORPORATION, CATELLUS
AND KING INVESTORS LLC; CATELLUS
COMMERCIAL DEVELOPMENT CORPORATION;
CATELLUS OPERATING LIMITED
PARTNERSHIP

1

SERVICE LISTS. Mitchell Kaplan, Esq.
Gregory Hanson, Esq.
GORDON & REES LLP

275 Battery Street, Suite 2000
San Francisco, CA 94114
Main Phone: (415) 986-5900
Fax: (415) 986-8054
SKaplan@gordonrees.com

ghanson@gordonrees.com

Attomeys for WEBCOR Builders, INC.; WEBCOR
CONSTRUCTION, INC., individually and dba
WEBCOR BUILDERS; WEBCOR
CONSTRUCTION LP, individually and dba
WEBCOR BUILDERS

Samuel J. Muir, Esq.

Erin R. Dunkerly, Esq.

COLLINS COLLINS MUIR + STEWART LLP
1100 El Centro Street

South Pasadena, CA 91030
smuir@ccmslaw.com
edunkerly@ccmslaw.com

Tel: 626/243-1100
Fax: 626/243-1111
Attorneys for Defendant

WEBCOR CONSTRUCTION, INC. dba WEBCOR
BUILDERS

Christopher T. Olsen, Esq.
CLINTON & CLINTON

100 Oceangate — Suite 1400

Long Beach, CA 90802

Direct: 562/216-5078

Tel:  §62-16-5078

Fax: §62/216-5001

Email: jsmith@clinton-clinton.com

Attomeys for THYSSENKRUPP ELEVATOR
CORPORATION

Kevin P. McCarthy, Esq.
Philip T. Bazzano, Esq.
Grace Koss, Esq.
Fred Trudeau, Esq.
MCCARTHY & MCCARTHY, LLP
492 Ninth St, Suite 220
Oakland, CA 94607
Telephone: 510-839-8100
Facsimile: 510-839-8108
kmecarthy@mecarthyllo.com
pbazzano@mccarthylip.com
dese ne
‘Trudeau@McCarthyLLP.com

Attorneys for WINDOW SOLUTIONS

William H. Staples

ARCHER NORRIS

2033 North Main Street, Suite 800
Walnut Creek, CA 94596

main 925.930.6600

fax 925.930.6620
wstaples@archemorris.com
dduncan@archernorris.com

Attorneys for ANNING-JOHNSON COMPANY

Adam Brezine, Esq.

Julien E. Capers, Esq.

BRYAN CAVE LLP

560 Mission Street, 25th Floor
San Francisco, CA 94105-2994
Tel: 415-268-2000

Fax: 415-268-1999
adam.brezine@bryancave.com
julien.capers@bryancave.com

Attorneys for Cross-Defendants
SOLUTIA, INC.

Randell J. Campbell, Esq.

Arif Virgi, Esq.

LYNCH, GILARDI & GRUMMER
170 Columbus Avenue, 5th Floor
San Francisco, CA 94133

Tel: (415) 397-2800

Fax: (415) 397-0937
rcampbell@laglaw.com
AVirji@\igglaw.com

Attorneys for ARCHITECTURAL GLASS &
ALUMINIUM CO, INC

Christian Lucia, Esq.

Denae M. Olivieri, Esq.
Bruce Basilico, Esq.
SELLAR HAZARD & LUCIA
4800 Sutter Street, Suite 460
Concord, CA 94520
clucia@sellariaw.com
bbasilico@sellarlaw.com

Tel (925) 938-1430
Fax (925) 286-7508

2

SERVICE LISTttorneys for

LLIED FIRE PROTECTION, BLUE'S ROOFING
COMPANY, CAREFREE TOLAND POOLS, INC.,
REATIVE MASONRY, CRITCHFIELD
ECHANICAL, INC., CUPERTINO ELECTRIC, F.
ODGERS CORPORATION, J.W. MCCLENAHAN
‘©., N.V. HEATHORN, INC., VAN-MULDER
HEET METAL, INC., WEST COAST
ROTECTIVE COATINGS, INC., and WESTERN
OOFING SERVICE

ZQOFry

DAVLOD

name changed 02.11.13]

James P. Castles, Esq.

Richard C, Young, Esq.

ROBLES, CASTLES & MEREDITH
492 Ninth Street, Suite 200
Oakland, California 94607

TE L (415) 632-1586

FAX 415/743-9305
Jim@rcmlawaroup.com
tick@rcmiawagroup.com
DEFENDANTS SKIDMORE OWINGS &
MERRILL LLP

Steven E. McDonald, Esq.
smedonald@biedsoelaw.com

James L. Shea

LEDSOE, CATHCART, DIESTEL, PEDERSEN &
TREPPA, LLP

601 Califomia Street - 16" Floor

San Francisco, CA 94108

Tel: 415/981-5411

Fax: 415/981-0352

wm

Attorneys for Defendant and Cross-Complainant

Document Depository

AIKEN & WELCH

One Kaiser Plaza ~ Suite 275
Oakland, CA 94612

Tel: 510-451-1580

Fax. 540-451-3797

Email: suem@aikenwelch.com

SHOOTER & BUTTS, INC

3

SERVICE LIST