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

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Christian P. Lucia (SBN - 203567)

Brent F. Basilico (SBN - 197159)

SELLAR HAZARD MANNING FICENEC & LUCIA
A Professional Law Corporation

1800 Sutter Street, Suite 460

Concord, CA 94520

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

Telephone: (925) 938-1430
Facsimile: (925) 256-7508 JAN 1 1 2013
Email: clucia@sellarlaw.com; bbasilico@sellarlaw.com BY: JUDITH NUNEZ
Deputy Clerk
Attorneys for:
Defendants and Cross-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; F, Rodgers Corporation; Western
Roofing Service
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
BEACON RESIDENTIAL COMMUNITY Case No.: CGC08-478453
ASSOCIATION
DEFENDANT AND CROSS-
Plaintiff, DEFENDANTS CUPERTINO

Vv.
CATELLUS THIRD AND KING, LLC, et al.
Defendants,

AND ALL RELATED CROSS-ACTIONS

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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, F, RODGERS
CORPORATION, AND WESTERN
ROOFING SERVICE’S EVIDENTIARY
OBJECTIONS TO SUNG E, SHIM,
ESQ.’S DECLARATION IN SUPPORT
OF PLAINTIFF’S OPPOSITION TO
SUBCONTRACTORS’S AND
SUBCONTACTOR’S MOTION FOR
SUMMARY ADJUDICATION

SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS

100268.doc

Case No, CGC08-478453Pursuant to California Rules of Court, Rule 3.1354, Defendants and Cross-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, I’. Rodgers Corporation, and
Western Roofing Service (collectively “SUBCONTRACTORS”) submit these Evidentiary Objections
to the declaration of Sung Shim (“Shim”) in support of Plaintiff’s Opposition to
SUBCONTRACTORS? Motion for Summary Adjudication (“MSA”) to Plaintiff's Seventh Cause of

Action,
Material Objected Grounds for Objection Ruling
1. Portions of Paragraph 3 of the } 1. Trrelevant. Insurance | Sustained:
Shim Declaration. coverage is not at issue in this | Overruled:

“I am knowledgeable about | MSA. The declaration must set
insurance coverage relating to for | forth admissible evidence and
sale condominium projects.” be in the form of evidentiary
facts. (Code Civil Proc. §
437c(d); Stockinger v. Feather
River Community College
(2003) 111 Cal.App.4th 1014,
1025-1026; Evidence Code
§ 350.)

2. Inadmissible Expert
Evidence. Shim claims that he
is an expert in insurance
coverage for for-sale
condominium projects, yet the

Plaintiff has failed to disclose

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SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS
100268.doc Case No. CGC08-478453him as an expert in their expert
disclosure. (See Exhibit “A,”
attached to the Supplemental
Declaration of Brent F, Basilico
(Suppl. Basilico Decl.) at 42.)
Expert Disclosure was due on
August 27, 2012, (Id., at 3.)

3, Lacks Foundation. Shim is
an attorney, and has not
established that he is an expert
in the insurance arena, yet the
plaintiffs have failed to disclose
him as an expert in their expert
disclosure. (See Exhibit “A,”
attached to the Suppl. Basilico
Decl. at | 2.) Expert Disclosure
was due on August 27, 2012.
(bid, at 43.). Shim merely
states that he has represented
developers which could mean
that he has represented as few as
two developers in his legal
career, and this calls into
question his ability to qualify as
an expert, even if he were
properly disclosed. (See also,
Evidence Code §§ 403, 801

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100268.doc.

SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS

Case No. CGC08-478453Cm YN AH BR WN

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BRRPRPRRBBE BSR WAGES HBS

“Based upon my experience
representing developers of for
sale condominiums, they had to
purchase Owner Controlled
Insurance Project (“OCIP”) due
to the difficulties of the
contractors and subcontractors
obtaining completed operations
coverage as a result of
proliferation of condominium
construction defect claims. An

OCcIP, or “wrap-up”, is an
insurance program for a specific
construction project purchased
and administered by the project
with

owner in connection

development of for sale housing.”

through 803.)
2. Paragraph 4 of the Shim] 1. Irrelevant. Insurance } Sustained:
Declaration. coverage is not at issue in this | Overruled:

MSA. (Code Civil Proc. §
437c(d),; Stockinger v. Feather
River Community College

(2003) 111 Cal.App.4th 1014,

1025-1026; Evidence Code
§ 350.)
2. Inadmissible Expert

Evidence. Shim claims that he

ig an expert in insurance

coverage for for-sale
condominium projects, yet the
Plaintiff has failed to disclose
him as an expert in their expert
disclosure. (See Exhibit “A,”
attached to the Suppl. Basilico
at 2.) Expert Disclosure was
due on August 27, 2012. (Id., at

13)

3. Lacks Personal Knowledge
and Foundation. Shim is an
attorney, and has not established
that he is an expert in the
The

insurance arena,

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SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS

100268.doc

Case No. CGC08-478453Oo oe WM DA HW RR BW N

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Declaration must be based on
personal knowledge, must set
forth admissible evidence, and
must affirmatively demonstrate
that the affiant is competent to
testify to the matters asserted in
them. (Code of Civil Procedure
§ 437c(d); Regents of the Univ,
of Cal. v. Superior Court (1966)
41 CalApp4th 1040, 1044;
Weil & Brown, Cal. Practice
Guide: Civil Procedure Before
Trial (The Rutter Group 1995) §
10:106-10:142, pp. 10-34 to 10-
42.) Declarant must be
competent to testify to the
matters stated within the
declaration. (Id.) Shim merely
states that he has represented
developers, which could mean
that he has represented as few as
two developers in his legal

career, and this calls into

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100268.doc

SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS

Case No, CGC08-478453question his ability to qualify as
an expert, even if he were

properly disclosed.

4, Shim’s Declaration Is Not
Complete and Is Based Upon
Speculation. Shim states in his
memorandum of points and
authorities in opposition to the
MSA that the reason an OCIP
was used was to “insure against
construction defect claims by
purchasers of individual units at
the Beacon Project,” as proof
that SUBCONTRACTORS
knew that the project would be
sold as condominiums. (See
Opposition page 10.) Shim has
no basis for this conclusion. He
was not a contracting party to
the SUBCONTRACTORS
general contract or subcontracts,
nor has he established the he

was involved with the project at

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100268.doc

SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS

Case No, CGC08-478453a

its inception or during the
contracting phase. Shim has no
personal knowledge regarding
the reason an OCIP was used
for the Beacon Project and his
mere speculation must be

rejected.

5. Improper Opinion by Lay
Person. Shim is not an expert
in insurance. He was not
disclosed as an expert. (See
Exhibit “A,” attached to the
Suppl. Basilico at 42.) Expert
Disclosure was due on August
27, 2012. (Id., at 93.) Shim
fails to set forth facts in his
declaration establishing
expertise in the insurance arena
for developers. He merely states
that he has represented
developers, which could mean
he has represented as few as two

developers in his legal career,

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100268.doc

SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS

Case No. CGC08-478453Oo I DN Ww

.°

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and this calls into question his
ability to qualify as an expert, if
he were properly disclosed.
Shim states in his memorandum
of points and authoritiés in
opposition to the MSA that the
reason an OCIP was used was to
“insure against construction
defect claims by purchasers of
individual units at the Beacon
Project,” as proof that the
SUBCONTRACTORS _ knew
that the project was to be sold as
condominiums. (See
Opposition page 10.) Shim has
no basis for this conclusion. He
was not a contracting party to
SUBCONTRACTORS general
contract or subcontracts, nor has
he established the he was
involved with the project at its
inception or during the

contracting phase. Shim has no

-8-

100268.doc

SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS

Case No, CGC08-478453personal knowledge regarding
the reason an OCIP was used
for the Beacon Project, and his
mere speculation must be
rejected (See, Evidence Code
§§ 403, 801 through 803.)

6. Opinion Based = on
Improper Matter. (Evidence
Code §803; Powell v.
Kleinmann (2007) 151
Cal.App.4"" 112, 123.) Shim’s
assumption for the reason an
OCIP was used at the Beacon
Project has no factual basis and

is merely speculative and based

upon an unsupported
assumptions.
7. Improper Attorney

Testimony. Attorney Shim
cannot testify about matters or

facts not known to him

OCIP policy

is

“One of the main benefits of the

to provide

personally.
3. Paragraph 5 of the Shim | 1. Irrelevant. Insurance | Sustained:
Declaration. coverage is not at issue in this | Overruled:

MSA. (Code Civil Proc. §
437c(d); Stockinger v, Feather

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100268.doc

SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS

Case No, CGC08-478453completed operations to the
extent of the 10 year statue of
report, during which a
construction defect claim can be
brought by condominium
owners’ associations and the
individual purchasers of the

condominium units.”

River Community — College
(2003) 111 Cal.App.4th 1014,
1025-1026;

§ 350.)

Evidence Code
2. Inadmissible Expert
Evidence. Shim claims that he
is an expert in insurance
coverage for for-sale
condominium projects, yet the
Plaintiff has failed to disclose
him as an expert in their expert
disclosure. (See Exhibit “A,”
attached to the Suppl. Basilico
at {2.) Expert Disclosure was
due on August 27, 2012. (Id., at
13.)

3. Lacks Personal Knowledge

and Foundation. Shim is an
attorney, and has not established
that he is an expert in the
insurance — arena. The
Declaration must be based on
personal knowledge, must sct

forth admissible evidence, and

must affirmatively demonstrate

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SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS

100268.doc

Case No, CGC08-478453that the affiant is competent to
testify to the matters asserted in
them. (Code of Civil Procedure
§ 437c(d); Regents of the Univ.
of Cal. y. Superior Court (1966)
41 Cal.App.4th 1040, 1044;
Weil & Brown, Cal. Practice
Guide: Civil Procedure Before
Trial (The Rutter Group 1995) §
10:106-10:142, pp. 10-34 to 10-
42.) Declarant must be
competent to testify to the
matters stated within the
declaration. (Id.) Shim merely
states that he has represented
developers, which could mean
that he has represented as few as
two developers in his legal
career, and this calls into
question his ability to qualify as
an expert, if he were properly

disclosed.

4. Shim’s Declaration Is Not

-ll-

100268.doc

SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS

Case No. CGC08-478453Complete and Is Based Upon
Speculation. Shim states in his
memorandum of points and
authorities in opposition to the
MSA that the reason an OCIP
was used was to “insure against
construction defect claims by
purchasers of individual units at
the Beacon Project,” as proof
that SUBCONTRACTORS
knew that the project would be
sold as condominiums. (See
Opposition page 10.) Shim has
no basis for this conclusion. He
was not a contracting party to
the SUBCONTRACTORS
general contract or subcontracts,
nor has be established the he
was involved with the project at
its inception or during the
contracting phase. Shim has no
personal knowledge regarding

the reason an OCIP was used

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100268.doc

SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS

Case No, CGC08-478453Cot AH FF WN =

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for the Beacon Project and his
mere speculation must be

rejected.

5. Improper Opinion by Lay
Person. Shim is not an expert
in insurance. He was not
disclosed as an expert. (See
Exhibit “A,” attached to the
Suppl. Basilico at 2.) Expert
Disclosure was due on August
27, 2012. (Id., at 73.) Shim
fails to set forth facts in his
declaration establishing
expertise in the insurance arena
for developers. He merely states
that he has represented
developers, which could mean
he has represented as few as two
developers in his legal career,
and this calls into question his
ability to qualify as an expert.
Shim states in his memorandum

of points and authorities in

-B-

100268.doc

SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS

Case No. CGC08-478453opposition to the MSA that the
reason an OCIP was used was to
“insure against construction
defect claims by purchasers of
individual units at the Beacon
Project,” as proof _ that
SUBCONTRACTORS _ knew
that the project was to be sold as
condominiums. (See
Opposition page 10.) Shim has
no basis for this conclusion. He
was not a contracting party to
the SUBCONTRACTORS
general contract or subcontracts,
nor has he established the he
was involved with the project at
its inception or during the
contracting phase. Shim has no
personal knowledge regarding
the reason an OCIP was used
for the Beacon Project and his
mere speculation must be

rejected (See, Evidence Code

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100268.doc

SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS

Case No, CGC08-478453oe ID

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il
12
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§§ 403, 801 through 803.)

6. Opinion Based on

Improper Matter. (Evidence

Code §803; Powell vy.

(2007)
Cal.App.4 112, 123.) Shim’s

Kleinmann 151
assumption for the reason an
OCIP was used at the Beacon
Project has no factual basis and

is merely speculative and based

upon an unsupported
assumptions.

7, Improper Attorney
Testimony. Attorney Shim

cannot testify about matters or

facts not known to him

personally,
4, Paragraph 6 of the Shim! 1. Irrelevant. Insurance | Sustained:
Declaration. coverage is not at issue in this | Overruled:

“With respect to the construction
of the Beacon Project at issue in
this motion, an OCIP was
purchased, The insurance cartier
for this OCIP policy is currently
defending the moving patties to

the Motions in connection with

MSA. (Code Civil Proc. §
437c(d); Stockinger v. Feather
River Community College
(2003) 111 Cal.App.4th 1014,
1025-1026; Evidence Code

§ 350.)

2. Lacks Personal Knowledge

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SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS

100268.doc

Case No. CGC08-478453this action.”

and Foundation. Shim does
not base his contention on any
evidence and he has no personal
knowledge concerning any
carrier’s defense of any of the

moving parties.

3. Improper Attorney
Testimony. Attorney Shim
cannot testify about matters or
facts not known to him

personally.

DATED: January 11, 2013

SELLAR HAZARD MANNING FICENEC & LUCIA

BRENT F. BASILICO

Attorney For Defendants and Cross-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; F. Rodgers
Corporation; Western Roofing Service

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100268.doc

SUBCONTRACTORS’ EVIDENTIARY OBJECTIONS
Case No. CGC08-478453