Motion-Secondary: BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al

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                                William H. Staples (Bar No. 64633)
wstaples@archernorris.com

Toana R. Mondescu (Bar No. 209471)

imondescu@archernorris.com ELECTRONICALLY

ARCHER NORRIS FILED

A Professional Law Corporation Superior Court of California,

2033 North Main Street, Suite 800 County of San Francisco

Walnut Creek, California 94596-3759 JAN 11 2013

Telephone: 925.930.6600 Clerk of the Court

Facsimile: 925.930.6620 BY: ANNIE PASCUAL
Deputy Clerk

Attorneys for Defendant/Cross-Defendant
ANNING-JOHNSON COMPANY

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION — COMPLEX LITIGATION

BEACON RESIDENTIAL COMMUNITY Case No. CGC-08-478453

ASSOCIATION,
DEFENDANT ANNING JOHNSON
Plaintiff, COMPANY’S RESPONSES TO
PLAINTIFF’S EVIDENTIARY
v. OBJECTIONS SUBMITTED IN

SUPPORT OF MOTION FOR SUMMARY
CATELLUS THIRD AND KING LLC, et ADJUDICATION

al.,
Date: January 17, 2013
Defendants. Time: 9:30 a.m,

Dept: 304

Assigned to Hon. Richard A. Kramer
Dept.304

AND RELATED CROSS-ACTIONS.

ANNING-JOHNSON COMPANY (“AJ”) hereby submits the following Responses to
Plaintiff's Objections to Evidence Submitted by Anning-Johnson Company in support of its
motion for summary adjudication:

Mi
i
it

CHR858/1503282-E

RESPONSE TO EVIDENTIARY OBJECTIONSBw ODD we a DO wD

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Plaintiff's Objections to Declaration of Mitch Hookins in Support of Webcor’s

Motion for Summary Adjudication (“Hookins Decl.”)

Material Objected to:

Ground(s) for Objection:

Response to Objection:

77

Hookins’ statements as to the
content of the Webcor contract
constitute hearsay.

(Ev.C. § 1200.)

Format of objection is in
violation of C.R.C. Rule
3.1354(b).

Mr. Hookins does not
testify about the content of
the Webcor contract but
about the invitation to bid
received from Webcor in
connection with the project
and its effect on AJ’s
understanding of what the
Project entailed.

The testimony is not
offered for the truth of the
content of any document,
but to explain the basis
upon which AJ bid on the
project, and is therefore,
evidence of AJ's state of
mind and subsequent
conduct. (Evid. Code
§1250)

{8 “At the time it submitted
its bids for the Mission Bay
Project AJ understood that the
residential portion of the
PROJECT was intended to be
apartments for rent.”

Evidentiary facts are required
to support a summary
judgment. Conclusions of fact
or law are not sufficient.
Allegations that might be
sufficient for pleading purposes
(so-called “ultimate facts” to
state a cause of action or
defense) are not sufficient as
evidence. (Snider v. Snider
(1962) 200 Cal.App.2d 741.)
Who the parties to the contracts
intended to benefit is a disputed
legal issue of this litigation and
jegal conclusions or opinions as
to this issue do not constitute
evidentiary facts. Hookins”
self-serving opinion as to his

Mr. Hookins does not state
“conclusions of fact or
law”, nor does he testify
about “intent” to benefit
another party; he simply
testifies about what was
AJ’s “then existing mental
state” i.e. understanding
about the nature of the
Project, thus his testimony
is admissible.

Mr. Hookins testified that
he was an estimator for AJ
at all pertinent times,
including when AJ
received the invitation to
bid from Webcor on the

t

t

CHR858/1503282-1

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RESPONSE TO EVIDENTIARY OBJECTIONSoD Mm ON

understanding is not an
evidentiary fact for the
purposes of summary
adjudication.

Project and submitted its
bids. He is also familiar
with and has knowledge of
the various contract and
subcontract documents.

He also testified that he
was an estimator and sales
manager for AJ for 16
years and in that position.
he was responsible for
reviewing the bids and all
contract documents before
estimating the cost of labor
and materials for AJ's
scope of work. Thus
personal knowledge and
foundation have been
properly established.

19 “AJ had no knowledge or
information otherwise, that the
units were intended to be, or
to be marketed or sold, as
condominiums, or that a
condominium association was
contemplated.”

Evidentiary facts are required
to support a summary
judgment. Conclusions of fact
or law are not sufficient.
Allegations that might be
sufficient for pleading purposes
(so-called “ultimate facts” to
state a cause of action or
defense) are not sufficient as
evidence. (Snider v. Snider
(1962) 200 Cal.App.2d 741.)
Who the parties to the contracts
intended to benefit is a disputed
legal issue of this litigation and
legal conclusions or opinions as
to this issue do not constitute
evidentiary facts. Hookins’
self-serving opinion as to his
understanding is not an
evidentiary fact for the
purposes of summary
adjudication.

Mr. Hookins does not state
“conclusions of fact or
law”, nor does he testify
about “intent” to benefit
another party; he simply
testifies about what was
AJ’s “then existing mental
state” i.e. understanding
about the nature of the
roject, thus his testimony
is admissible.

Mr. Hookins testified that
he was an estimator for AJ
at all pertinent times,
including when AJ
received the invitation to
bid from Webcor on the
Project and submitted its
ids. He is also familiar
with and has knowledge of
the various contract and
subcontract documents.
He also testified that he
was an estimator and sales
manager for AJ for 16
years and in that position.
he was responsible for

reviewing the bids and all_ |

CHR858/1503282-1

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1

RESPONSE TO EVIDENTIARY OBJECTIONS

eenN

w

contract documents before
estimating the cost of labor |
and materials for AJ’s
scope of work. Thus
personal knowledge and
foundation have been.
properly established.

{13 —“AJ was not aware at
any time prior to, or when it
entered into subcontracts with
Webcor that units of the
Mission Bay Project were
intended to be, or to be
marketed or sold as
condominiums.”

Evidentiary facts are required
to support a summary
judgment. Conclusions of fact
or law are not sufficient.
Allegations that might be
sufficient for pleading purposes
(so-called “ultimate facts” to
state a cause of action or
defense) are not sufficient as
evidence. (Snider v. Snider
(1962) 200 Cal.App.2d 741.)
Who the parties to the contracts
intended to benefit is a disputed
legal issue of this litigation and
legal conclusions or opinions as
to this issue do not constitute
evidentiary facts. Hookins’
self-serving opinion as to his
understanding is not an
evidentiary fact for the
purposes of summary
adjudication.

Mr. Hookins does not state
“conclusions of fact or
law”, nor does he testil’y
about “intent” to benefit
another party; he simply
testifies about what was
AJ’s “then existing mental j
state” i.e, understanding
about the nature of the
Project, thus his testimony
is admissible.

Mr. Hookins testified that |
@ was an estimator for AJ
at all pertinent times, |
including when AJ i
received the invitation to
bid from Webcor on the
Project and submitted its i
bids. Heisalso familiar |
with and has knowledge of |
the various contract and
subcontract documents.
He also testified that he
was an estimator and sales
manager for AJ for 16
years and in that position.
6 was responsible for
reviewing the bids and all
contract documents before
estimating the cost of labor ||
and materials for AJ's co
scope of work. Thus i
personal knowledge and
foundation have been
properly established.

4 14-—“AT was not aware at
any time prior to, or when it
entered into subcontracts with
Webcor that either a

(1) Evidentiary facts are
required to support a summary
judgment. Conclusions of fact
or law are not sufficient.

Mr. Hookins does not state |
“conclusions of fact or |
law”, nor does he testify
about “intent” to benefit

CHR858/1503282-1

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RESPONSE TO EVIDENTIARY OBJECTIONSww

wn

“i

homeowners association or
commercial association was
contemplated for the Mission
Bay Project”

Allegations that might be
sufficient for pleading purposes
(so-called “ultimate facts” to
state a cause of action or
defense) are not sufficient as
evidence. (Snider v. Snider
(1962) 200 Cal.App.2d 741.)
Who the parties to the contracts
intended to benefit is a disputed
legal issue of this litigation and
legal conclusions or opinions
as to this issue do not constitute
evidentiary facts. Hookins’
self-serving opinion as to his
understanding is not an
evidentiary fact for the
purposes of summary
adjudication.

another party; he simply
testifies about what was
AJ's “then existing mental
state” ie. understanding
about the nature of the
Project, thus his testimony
is admissible.

Mr. Hookins testified that
he was an estimator for AJ
at all pertinent times,
including when AJ
received the invitation to
bid from Webcor on the
Project and submitted its
bids. He is also familiar
with and has knowledge of
the various contract and
subcontract documents.
He also testified that he
was an estimator and sales
manager for AJ for 16
years and in that position.
he was responsible for
reviewing the bids and all
contract documents before
estimating the cost of labor
and materials for AJ's
scope of work. Thus
personal knowledge and
foundation have been
properly established.

i

© 15 —“AJ knew and
understood that the Mission
Bay Project consisted of a
residential portion composed
of apartments for rent and
commercial space.”

C) Evidentiary facts are
required to support a summary
judgment. Conclusions of fact
or law are not sufficient.
Allegations that might be
sufficient for pleading purposes
(so-called “ultimate facts” to
state a cause of action or
defense) are not sufficient as
evidence. (Snider v. Snider
(1962) 200 Cal_App.2d 741.)
Who the parties to the contracts
intended to benefit is a disputed
legal issue of this litigation and
legal conclusions or opinions as

Mr. Hookins’ testimony
about what was known
regarding the nature of the
units to be constructed is
not a “conclusion of fact or
law” or testimony about
intent. His testimony
describes AJ’s then-
existing mental state, i.e.
knowledge or
understanding at the time it
entered into the
subcontracts about the
Project, thus his testimony
is admissible.

CHR858/1503282-1

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RESPONSE TO EVIDENTIARY OBJECTIONSto this issue do not constitute
evidentiary facts. Hookins’
self-serving opinion as to his
understanding is not an
evidentiary fact for the
purposes of summary
adjudication,

Mr. Hookins testified that
he was an estimator for AJ
at all pertinent times,
including when AJ
received the invitation to
bid from Webcor on the
Project and submitted its
bids. He is also familiar

with and has knowledge of

the various contract and
subcontract documents.
He also testified that he
was an estimator and sales
manager for AJ for 16
years and in that position.
he was responsible for
reviewing the bids and all
contract documents before

estimating the cost of labor

and materials for AJ’s
scope of work. Thus
personal knowledge and
foundation have been
properly established,

Sustained
Overruled

Objections to Declaration of loana Mondescu Thomas [SIC] in Support of

Webcor’s [SIC] Motion for Summary Adjudication (“Mondescu Decl.”)

Material @bjected to:

Ground(s) for Objection:

Response to. Objection:

Exhibit A — Deposition of
Michael McCone, 17:17 —
17:21. “is it your testimony
that Catellus never had the
intention to sell units at the
Beacon when it was being
designed and built.”

Evidentiary facts are required
to support a summary
judgment. Conclusions of fact
or law are not sufficient.
Allegations that might be
sufficient for pleading purposes
(so-called “ultimate facts” to
state a cause of action or
defense) are not sufficient as
evidence. (Snider v. Snider
(1962) 200 Cal. App.2d 741.)
Who the parties to the contracts
intended to benefit is a disputed

The quoted portion does
not accurately reflect the
testimony, thus, it is
misleading and the
objection thereto is
unfounded.

CHRS58/1503282-1

6

RESPONSE TO EVIDENTIARY OBJECTIONSlegal issue of this litigation and
legal conclusions or opinions
as to this issue do not constitute
evidentiary facts. McCone’
self-serving testimony as to his
understanding is not an
evidentiary fact for the
purposes of summary
adjudication.

Exhibit A — Deposition of
Michael McCone, 84;10-
84:11 “I would say the
Beacon was designed as an
apartment.”

(1) Evidentiary facts are
required to support a summary
judgment. Conclusions of fact
or law are not sufficient.
Allegations that might be
sufficient for pleading purposes
(so-called “ultimate facts” to
state a cause of action or
defense) are not sufficient as
evidence. (Snider v. Snider
(1962) 200 Cal.App.2d 741.)
Who the parties to the contracts
intended to benefit is a disputed
legal issue of this litigation and
legal conclusions or opinions as
to this issue do not constitute
evidentiary facts. McCone’
self-serving testimony as to his
understanding is not an
evidentiary fact for the
purposes of summary
adjudication.

Mr. McCone represents the |

Catellus parties’ PMK on
construction design and
other issues, thus his
testimony about the nature
of the Project is
admissible. Mr. MeCone
does not testify about
intent, so an objection
based on this ground is
unfounded.

I

Dated: January 11, 2013

CHR858/1503282-1

ARCHER NORRIS

cL

loana R. Mondescu
Attorneys for Defendant/Cross-Defendant
ANNING-JOHNSON COMPANY

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RESPONSE TO EVIDENTIARY OBJECTIONS