Exhibit,Appendix: BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al

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Ann Rankin, Esq. (SBN 83690)
Terry Wilkens, Esq. (SBN 118469)
Law Offices of Ann Rankin

3911 Harrison Street

Oakland, CA 94611

Tel: (510) 653-8886

Fax: (510) 653-8889

Kenneth Katzoff, Esq. (SBN 103490)
Robert Riggs, Esq. (SBN 107684)
Sung Shim, Esq. (SBN 184247)
atzoff & Riggs

500 Park Ave #300

Emeryville, CA 94608

TEL: (510) 597-1990

FAX: (510) 597-0295

Attorneys for Plaintiff

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

MAR 19 2013

Clerk of the Court
BY: CAROL BALISTRERI
Deputy Clerk

BEACON RESIDENTIAL COMMUNITY ASSOCIATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY
ASSOCIATION,

Plaintiff,
Vv.

CATELLUS THIRD AND KING LLC et. al:

Defendants.

And related Cross-actions

1

CASE NO.: CGC-08-478453

[Assigned to Honorable Curtis Karnow]

EXHIBIT “D” TO PLAINTIFF’S REQUEST
FOR JUDICIAL NOTICE IN SUPPORT OF
ITS MOTION FOR SEPARATE TRIAL OF
CLAIMS AGAINST SKIDMORE OWINGS
MERRILL, LLP AND HKS, INC. AND TO
RESET CASE FOR TRIAL ON JUNE 3, 2013

HEARING DATE: April 10, 2013
TIME: 10:00 a.m.

DEPT: 304

TRIAL DATE: None

EXHIBIT “BD” TO PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS MOTION FOR SEPARATE
TRIAL OF CLAIMS AGAINST SKIDMORE OWINGS MERRILL, LLP AND HKS, INC. AND TO RESET CASE FOR TRIAL

ON JUNE

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Ann Rankin, Esq. (SBN 83690)

Terry Wilkens, Esq. (SBN 118469) ND
Law Offices of Ann Rankin Es

3911 Harrison Street oat nt Cou of Ga

Oakland, CA 94611 .

Tel: (510) 653-8886 APR27 ro

Fax: (510) 653-8889 . CLERK OFTHE COURT

BY:

Kenneth Katzoff, Esq. (SBN 103490) Daputy Sterk
Sung Shim, Esq. (SBN 184247)

Katzoff & Riggs

1500 Park Ave #300

Emeryville, CA 94608

TEL: (510) 597-1990

FAX: (510) 597-0295

Attormeys for Plaintiff,
BEACON RESIDENTIAL COMMUNITY ASSOCIATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY CASE NO.: CGC-08-478453
ASSOCIATION,

CLASS ACTION

Plointif PLAINTIFF'S THIRD AMENDED
COMPLAINT FOR DAMAGES FOR,
VIOLATION OF STATUTORY BUILDING
CATELLUS THIRD AND KING LLC; STANDARDS FOR RESIDENTIAL
CATELLUS DEVELOPMENT CONSTRUCTION; NEGLIGENCE PER SE;
CORPORATION; CATELLUS STRICT LIABILITY OF DEVELOPER;
COMMERCIAL DEVELOPMENT NEGLIGENCE OF DEVELOPERS;
CORPORATION; CATELLUS OPERATING | NEGLIGENCE OF DESIGN

LIMITED PARTNERSHIP; CATELLUS PROFESSIONALS AND CONTRACTORS;
URBAN DEVELOPMENT CORPORATION; | BREACH OF IMPLIED WARRANTY;
THIRD AND KING INVESTORS LLC; BREACH OF THIRD PARTY BENEFICIARY
CATELLUS URBAN DEVELOPMENT, LLC; | CONTRACTS; CONCEALMENT
SHOOTER & BUTTS, INC.; CAREFREE :

TOLAND POOLS, INC.; CREATIVE BY FAX

MASONRY, INC.; POMA CORPORATION; °
VAN-MULDER SHEET METAL, INC;

ve

PLAINTIFF'S THIRD AMENDED COMPLAINT
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BLUE’S ROOFING CO.; ROOFING
CONSTRUCTORS, INC, dba WESTERN
ROOFING SERVICE; WEST COAST
PROTECTIVE COATINGS, INC,;

F. RODGERS INSULATION RESIDENTIAL,
INC.; F, RODGERS CORPORATION; N.V.
HEATHORN, INC.; ARCHITECTURAL
GLASS & ALUMINUM CO., INC.; ANNING-
JOHNSON COMPANY; TRACTEL, INC.;
THYSSEN KRUPP ELEVATOR
CORPORATION; ALLIED FIRE
PROTECTION; J.W. MC CLENAHAN CO,;
CRITCHFIELD MECHANICAL, INC.;
CUPERTINO ELECTRIC, INC,; WINDOW
SOLUTIONS, dba WINDOW SOLUTIONS,
INC. , and Does 52-200, inclusive,

Defendants.

GENERAL ALLEGATIONS

1 Plaintiff BEACON RESIDENTIAL COMMUNITY ASSOCIATION (hereafter
referred to as “Plaintiff” or the "Plaintiff Association") is a non-profit mutual benefit corporation
duly organized and existing under the laws of the State of California, composed of the owners of
the residential units within the BEACON COMMUNITY development (hereafter referred to as
“the Members"). The BEACON RESIDENTIAL COMMUNITY ASSOCIATION development
and common areas consist of no less than Five Hundred and Ninety Five (595) condominium units
and common areas which are located on and about 250 King Street and 260 King Street, San
Francisco, California.

2. The property which is the subject of this Complaint is also more particularly
described in the following documents:

Amended and Restated Declaration of Covenants, Conditions, Restrictions And Reservation of
Easements for Mission Place (Residential), including Exhibits, (hereafter referred to as
"“CC&Rs") which was recorded with the Recorder for the City and County of San Francisco on
or about December 28, 2004 as document number 2004-H879167-00,

PLAINTIFF'S THIRD AMENDED COMPLAINT
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The real property which is described above, including all improvements constructed thereon and
all property heretofore and hereafter annexed by the Association pursuant to the CC&Rs, and all
property at 250 King Street and 260 King Street which is administered by Plaintiff or by the
Commercial Association as hereinafter defined, or which Plaintiff or the Commercial Association
has any duty to maintain or repair, shall be referred to as the “Subject Property.”

3. Plaintiff is informed and believes and on that basis alleges that at all times
mentioned herein Defendants, and each of them, were individuals, business entities, organizations,
corporations and/or associations who participated in the development, design, or construction of
the subject real property and structures situated thereon and/or who sold the individual separate
interests in the residential portion of the development to the Members and their predecessors in
interest.

4, Plaintiff is informed and believes and on that basis alleges that, commencing at a
precise date which is unknown to Plaintiff, Defendants, and each of them, participated in the
manner set forth herein in the development, design, sale, and/or construction of the Subject
Property. The Subject Property is now owned, operated and controlled by Plaintiff Association

and the Members, as the homeowners residing therein, as well as the Commercial Association,
which has assigned its claims to Plaintiff Association as herein below alleged.
5. Plaintiff is informed and believes and thereon alleges that:
(a) Defendant CATELLUS THIRD AND KING, LLC is, and was at all
relevant times, a Delaware limited liability company doing business in San
Francisco, California.
(b) © Defendant CATELLUS DEVELOPMENT CORPORATION is, and was at
all relevant times, a Delaware corporation doing business in San Francisco,
California.
{c) Defendant CATELLUS COMMERCIAL DEVELOPMENT
CORPORATION is, and was at all relevant times, a Delaware corporation doing

business in San Francisco, California.

PLAINTIFF’S THIRD AMENDED COMPLAINT
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@) Defendant CATELLUS OPERATING LIMITED PARTNERSHIP is, and
was at all relevant times, a partnership doing business in San Francisco, California.
(©) Defendant CATELLUS URBAN DEVELOPMENT CORPORATION is,
and was at all relevant times, a Delaware corporation doing business in San

Francisco, California.

“@é Defendant THIRD AND KING INVESTORS LLC is, and was at all

relevant times, a limited liability company doing business in San Francisco,
California.

(g) Defendant PROLOGIS is, and was at all relevant times, a Delaware
corporation doing business in San Francisco, California. In or about 2005,
CATELLUS THIRD AND KING, LLC, CATELLUS DEVELOPMENT
CORPORATION, CATELLUS COMMERCIAL DEVELOPMENT CORP.,
CATELLUS OPERATING LIMITED PARTNERSHIP and CATELLUS URBAN
DEVELOPMENT CORPORATION merged with PROLOGIS. PROLOGIS is the
successor by merger entity to CATELLUS THIRD AND KING, LLC, CATELLUS
DEVELOPMENT CORPORATION, CATELLUS COMMERCIAL
DEVELOPMENT CORP., CATELLUS OPERATING LIMITED PARTNERSHIP
and CATELLUS URBAN DEVELOPMENT CORPORATION.

(h) Defendant MISSION PLACE LLC is, and was at all relevant times, a

Delaware limited liability company doing business in San Francisco, California.

@ _— Defendant MISSION PLACE MEZZANINE LLC is, and was at all relevant
times, a Delaware limited liability company doing business in San Francisco,
California.

a Defendant MISSION PLACE MEZZ HOLDINGS LLC is, and was at all
relevant times, a Delaware limited liability company doing business in San
Francisco, California.

& Defendant MISSION PLACE PARTNERS LLC is, and was at all relevant

times, a Delaware limited liability company doing business in San Francisco,

PLAINTIFF’S THIRD AMENDED COMPLAINT
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California,

Qa Defendant CENTURION REAL ESTATE INVESTORS IV, LLC is, and
was at all relevant times, a Delaware limited liability company doing business in
San Francisco, California.

(m) Defendant CENTURION REAL ESTATE PARTNERS, LLC is, and was at
all relevant times, a Delaware limited liability company doing business in San
Francisco, California.

(2) Defendant CENTURION PARTNERS LLC is, and was at all relevant
times, a Delaware limited liability company doing business in San Francisco,
California.

(0) Defendant WEBCOR CONSTRUCTION, INC. is, and was at all relevant
times, a California corporation doing business in San Francisco, California.

(p) Defendant WEBCOR BUILDERS, INC. is, and was at all relevant times, a
California corporation doing business in San Francisco, California.

(q) Defendant WEBCOR CONSTRUCTION, INC. individually and doing
business as WEBCOR BUILDERS is, and was at all relevant times, a California
corporation doing business in San Francisco, California.

() Defendant WEBCOR CONSTRUCTION LP individually and doing
business as WEBCOR BUILDERS is, and was at all relevant times, a limited
partnership doing business in San Francisco, California.

(s) Defendant SKIDMORE OWINGS & MERRILL LLP is, and was at all
relevant times, a New York limited liability partnership doing business in San
Francisco, California.

@® Defendant HKS, INC. is, and was at all relevant times, a Texas corporation
doing business in San Francisco, California.

(a) Defendant HKS ARCHITECTS, INC. is, and was at all relevant times, a

Texas corporation doing business in San Francisco, California.

PLAINTIFF’S THIRD AMENDED COMPLAINT
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(v) Defendant HKS, INC. individually and doing business as HKS
ARCHITECTS, INC, is, and was at all relevant times, a Texas corporation doing
business in San Francisco, California,

(w) Defendant CATELLUS URBAN DEVELOPMENT, LLC, sued herein as
Doe 1, is a Delaware Limited Liability Company authorized to do business in the
State of California, Said defendant was involved in the development of the Beacon
Residential Condominiums.

(x) | Defendant SHOOTER & BUTTS, INC. is a corporation authorized to exist
under the laws of the State of California and is doing business in San Francisco,
CA. Defendant Shooter & Butts was sued herein as Doe 31.

(y) Defendant CAREFREE TOLAND POOLS, INC. is a corporation
authorized to exist and existing pursuant to the laws of the State of California, Said
defendant was sued herein as Doe 32.

(2) ‘Defendant CREATIVE MASONRY, INC. is a corporation authorized to
exist and existing pursuant to the laws of the State of California. Said defendant
was sued herein as Doe 33.

(aa) Defendant POMA CORPORATION is a corporation authorized to exist and
existing pursuant to the laws of the State of California. Said defendant was sued
herein as Doe 34.

(bb) Defendant VAN-MULDER SHEET METAL, INC, is a corporation authorized
to exist and existing pursuant to the laws of the State of California. Said defendant
was sued herein as Doe 35.

(cc) Defendant BLUE’S ROOFING CO. is a corporation authorized to exist and
existing pursuant to the laws of the State of California. Said defendant was sued
herein as Doe 36.

(dd) Defendant ROOFING CONSTRUCTORS, INC. dba WESTERN ROOFING
SERVICE is a corporation authorized to exist and existing pursuant to the laws of

the State of California. Said defendant was sued herein as Doe 37.

PLAINTIFF'S THIRD AMENDED COMPLAINT
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(ee) Defendant WEST COAST PROTECTIVE COATINGS, INC. is a
corporation authorized to exist and existing pursuant to the laws of the State of
California. Said defendant was sued herein as Doe 38.

(ff) Defendant F. RODGERS INSULATION RESIDENTIAL, INC. at all times
herein relevant, was a corporation authorized to exist and existing pursuant to the

laws of the State of California. Said defendant was sued herein as Doe 39.

(gg) Defendant F, RODGERS CORPORATION, at all times herein relevant, was a

corporation authorized to exist and existing pursuant to the laws of the State of
California. Said defendant was sued herein as Doe 40.

(ih) Defendant N.V. HEATHORN, INC., at all times herein relevant, was a
corporation authorized to exist and existing pursuant to the laws of the State of
California. Said defendant was sued herein as Doe 41.

(ii) ~~ Defendant ARCHITECTURAL GLASS & ALUMINUM CO,, INC., at all
times herein relevant, was a corporation authorized to exist and existing pursuant to
the laws of the State of California, Said defendant was sued herein as Doe 42.

Gi) Defendant ANNING-JOHNSON COMPANY, at all times herein relevant,
was a corporation authorized to exist and existing pursuant to the laws of the State
of Delaware. Said defendant was sued herein as Doe 43.

(kk) Defendant TRACTEL, INC. is a corporation authorized to exist and existing
pursuant to the laws of the State of Massachusetts. Said defendant was sued herein
as Doe 44,

() Defendant THYSSEN KRUPP ELEVATOR CORPORATION is a
corporation authorized to exist and existing pursuant to the laws of the State of
Delaware. Said defendant was sued herein as Doe 45.

(mm) Defendant ALLIED FIRE PROTECTION is a corporation authorized to
exist and existing pursuant to the laws of the State of California. Said defendant

was sued herein as Doe 46.

PLAINTIFF’S THIRD AMENDED COMPLAINT
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(nn) Defendant J.W. MC CLENAHAN CO.,, at all times herein relevant, was a
corporation authorized to exist and existing pursuant to the laws of the State of
California. Said defendant was sued herein as Doe 47.

(00) Defendant CRITCHFIELD MECHANICAL, INC., at all times herein
relevant, was a corporation authorized to exist and existing pursuant to the laws of
the State of California. Said defendant was sued herein as Doe 48,

(pp) Defendant CUPERTINO ELECTRIC, INC., at all times herein relevant was
a corporation authorized to exist and existing pursuant to the laws of the State of
Detaware. Said defendant was sued herein as Doe 49. Said defendant provided
electrical subcontracting services to the Beacon residential condominiums.

(qq) Defendant WINDOW SOLUTIONS, dba WINDOW SOLUTIONS, INC.,
at all times herein relevant, was a corporation authorized to exist and existing
pursuant to the laws of the State of California. Defendant Window Solutions is
sued herein as Doe 50, Plaintiff is informed and believes that Defendant Window
Solutions installed a film on the interior panes of about 300 units within the Beacon
Residential Condominiums; that the film was installed in the wrong place; that the
purpose of the film was to mitigate heat build-up in the units, but that instead the
film failed to mitigate the heat build up and even increased it and caused the
window panes to crack and the interior temperatures of the window frames to reach
160 Degrees Fahrenheit in many cases, and the interior temperatures to exceed 90
and even 100 degrees Fahrenheit.

6. The defendants mentioned in subparagraphs (x) through (qq) of the preceding
paragraph are persons and entities that either performed work, provided design services, provided
supplies, provided materials, or provided systems to the Subject Property, under contract or
subcontract with one or more defendants that was involved in the construction and development of
the Subject Property. All such defendants are hereinafter collectively referred to as “the
SUBCONTRACTOR DEFENDANTS.”

PLAINTIFF'S THIRD AMENDED COMPLAINT
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7. At the time the Complaint was filed, Plaintiff was ignorant of the true names and
capacities of Does One (1) through Two Hundred (200), inclusive, and therefore sues these
Defendants by such fictitious names. In November, 2010, Plaintiff learned the true names and
capacities of twenty of these fictitiously named defendants and added them as additional parties.
Plaintiff will amend this Complaint to allege the trae names and capacities of any additional
fictitiously named defendants when the same are ascertained, Plaintiff is informed and believes
and thereon alleges that each of the fictitiously named Defendants is liable or responsible in some
manner to Plaintiff on the facts hereinafter alleged and that Plaintiff's damages as herein alleged
‘were proximately caused by such Defendants,

8. Plaintiff is informed and believes and on that basis alleges that at all times herein
mentioned each of the Defendants, including the Defendants sued herein as Does One (1) through
Two Hundred (200), inclusive, was acting as the agent, servant, partner, principal, joint venturer,
alter ego and/or employee of each of its Co-Defendants, and in doing the things hereafter
mentioned was acting within the scope of its authority as such agent, servant, partner, principal,

joint venturer, alter ego and/or employee, with the full knowledge, permission, and consent, either
express or implied, of each of the remaining Defendants.

9. Plaintiff is informed and believes and on that basis alleges that at all times
mentioned herein Defendants, and each of them, were individuals, business entities, organizations,
corporations and/or associations who participated in the development, design, or construction of
the subject real property and structures situated thereon and/or who sold the individual separate
interests in the residential portion of the development to the members of the Plaintiff Association.

10. On or about December 5, 2003, a Mutual Benefit Agreement Between Joint
Owners of Building (Mission Bay Mixed Use Residential/Commercial Block N1 (“MBA”) was
recorded in the Official Records of the City and County of San Francisco as Instrument No. 2003-
H607094-00, The parties to the MBA were defendant CATELLUS THIRD AND KING, LLC
and defendant THIRD AND KING INVESTORS LLC (collectively, “Commercial Owner”) and
Plaintiff's predecessor, the Mission Place Residential Community Association, Under the MBA,
the Commercial Owner had the duty to maintain and repair certain exterior components of the

PLAINTIFF’S THIRD AMENDED COMPLAINT
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residential buildings at 250 and 260 King Street, San Francisco, CA. The rights and duties of the
Commercial Owner with reference to the Subject Property were subsequently assigned to Beacon
Commercial Owners’ Association, a California non-profit mutual corporation (the “Commercial
Association”), The Commercial Association subsequently assigned its right to pursue claims for
improper design, construction and development of the components which the Commercial
Association owns and maintains pursuant to the MBA to the Plaintiff. Plaintiff brings these
claims as the assignee of the Commercial Association.

11. On or about November 9, 2004 the Articles of Incorporation of Mission Place
Residential Community Association were filed with the Secretary of State for the State of
California.

12. On or about December 28, 2004, in the official records of the City and County of
San Francisco, said Association caused to be recorded the Amended and Restated Declaration of
Covenants, Conditions, Restrictions And Reservation of Easements for Mission Place
(Residential),

13. On or about February 10, 2005, due and proper By-Laws of said Association were
duly adopted at a meeting of the Board of Directors. The principal place of business of the
Plaintiff Association is in the City and County of San Francisco, State of California,

14, On or about May 2, 2005, a Certificate of Amendment of Articles of Incorporation
of Mission Place Residential Community Association was filed with the Secretary of State for the
State of California. The Certificate of Amendment caused the name of the Plaintiff Association to
be changed from “Mission Place Residential Community Association” to “Beacon Residential
Community Association,”

15. Plaintiff, in accordance with the aforesaid By-Laws and Declaration of Covenants,
Conditions and Restrictions, has the sole and exclusive right and duty to manage, operate, control,
repair, replace, and restore the residential common area and the obligation to maintain, preserve,
and repair certain of the individually owned areas of the Subject Property, to let contracts to
accomplish its duties and obligations, and has all of the powers necessary to carry out its rights
and obligations, including the right, duty, and power to contract for legal services to prosecute any

PLAINTIFF'S THIRD AMENDED COMPLAINT
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action which it deems necessary to enforce its powers, rights, and obligations, including bringing
the within action.

16. Plaintiff also brings this action pursuant to California Civil Code Section 1368.3,
which confers on Plaintiff legal standing to bring suit to recover for: (a) damage to the common
areas; (b) damage to a separate interest that the association is obligated to maintain or repair; and
(c) damage to a separate interest that arises out of, or is integrally related to, damage to the
common area or a separate interest that the association is obligated to maintain or repair.

7. Plaintiff, in accordance with the aforesaid By-Laws and Declaration of Covenants,
Conditions and Restrictions, and California Civil Code Section 1368.3, is authorized to bring this
action and recover for the various claims for damages and defects that are further described in this
Complaint,

18. Plaintiff also brings this case in its representative capacity under California Code of
Civil Procedure 382 with respect to the following issues:

a Does the “solar heat gain” issue described herein violate a Performance
Standard of Civil Code §§ 896 or 897?

b If Civil Code §§ 895 et seq. are inapplicable to this case because the
buildings were a “condominium conversion’, or for some other reason, is the solar heat
gain issue compensable based on theories of strict liability, negligence, negligence per se
or breach of implied warranty?

. Did the defendants PROLOGIS/CATELLUS and MISSION PLACE, LLC
conceal the heat gain issue from the Members when these defendants sold separate
interests to the Members and their predecessors?

d. As to the balconies, windows, sliding glass doors, and any other building
components as to which Defendants may contend Plaintiff lacks standing to make a claim
under Civil Code 1683.3 because such components are owned and maintained by the
Members, did the components as designed and built violate the Performance Standards of
Civil Code §§ 896 or 897, so that Defendants, or any of them, are liable?

PLAINTIFF’S THIRD AMENDED COMPLAINT
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e If Civil Code §§ 895 et seq. do not apply to the project, are Defendants
liable to Plaintiff, the Commercial Association and/or to the Members with respect to the
components identified in Paragraph 17(d) above under theories of strict liability,
negligence, negligence per se and/or breach of express warranty?

£ If Defendants are liable to the Members for the heat gain issues and/or for
the components identified in Paragraph 17d, what are the damages?

19. Plaintiff's membership (herein, “the Members”) consists solely of the Owners of
the 595 residential units located in the buildings commonly known as 250 and 260 King Street,
San Francisco, CA. Plaintiff, as a non-profit mutual benefit corporation, is governed by its duly
elected Board of Directors pursuant to the Association’s By-Laws and CC&Rs.

20. Plaintiff brings this action in its representative capacity on behalf of the individual
unit owners because this action involves common questions of law and fact that predominate over
individual issues, especially with respect to certain building components. For example, Plaintiff
maintains the window frames of the units, as required by the CC&Rs, but the glazing is defined in
the CC&Rs as part of the Unit rather than part of the common area,

21. According to the CC&R’s, the Members maintain the interior of the glazing, and
the Commercial Association maintains the exterior glazing. Because of the manner in which the
buildings were designed and constructed, the window assemblies allow excessive heat gain within
the interior of the units, and this violates the Performance and Functionality Standards of Civil
Code 896 and Civil Code 897 because the components of the window assemblies are failing
prematurely due to excessive heat build up; the conditions in the units are unsafe and unhealthy
because they violate published standards for health and safety to the point where they constitute a
health hazard as determined by a duly authorized health agency, health official or governmental
agency having jurisdiction; the components of the window assemblies are suffering from property
damage caused by the excessive heat; and the air and interior climate controls of the units violate
statutory requirements, including but not limited to those of the California Building Code, Title
24, and of the San Francisco Building Code. The buildings, as constructed, violate the California
Energy Code that was in effect at the time they were constructed because the windows are dual

PLAINTIFF’S THIRD AMENDED COMPLAINT
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pane aluminum and are not NFRC certified to the U-Factor and Solar Gain Coefficient claimed in
the original Title 24 energy compliance documentation. Common questions of law and fact
predominate over individual questions of law and fact because all the units in each building were
designed by the same team of architects, constructed by the same general construction contractor,
developed by the same developer, and sold and placed into the stream of commerce by the same
entities, The same Title 24 reports and calculations were used to obtain approval of the San
Francisco Building Department for the construction of the buildings, including common areas and
units. Defendants made and participated in value engineering decisions that changed the windows
and ventilation from the approved energy plan without Building Department approval. The
changes negligently violated Title 24 and the California Energy Code by allowing excessive solar
heat gain in the units, As a result, the temperature inside of many of the Units exceeds ninety and
even 100 degrees during warm weather, resulting in extremely uncomfortable and unhealthy
conditions. The requirements of Title 24, of the California Building Code, and of the California
Energy Code, as incorporated into local statutory law and implementing codes and regulations,
were intended to prevent the damage and harm that has occurred to Plaintiff, the Commercial
Association, and the residents of the Units. Violating these published standards was negligent per
se on the part of the Defendants named herein and this statutory violation is actionable under Civil
Code 943(a). As a result, the design and construction of the buildings violates Civil Code § 896
and other applicable pertinent functionality, performance, and other statutory standards. Plaintiffs
have a right to sue and do hereby sue as set forth in Civil Code 931 and 943(a) for negligence per
se for violation of statutory standards, as well as for the right to sue for violation of the
Performance Standards, including but not limited to those in Civil Code 896 (g) (3); g (4), g (5), &
(15) and Civil Code 897.

22. In addition, the separate interests suffer from inadequate ventilation that fails to
meet the requirements of the California Building Code, and that constitutes a health and safety
hazard as determined by a duly authorized health agency or public health official or governmental
agency having jurisdiction. The inadequate ventilation violates the statutes, codes and regulations
described in the preceding paragraph. As a result, common questions of law and fact pertaining to

PLAINTIFF’S THIRD AMENDED COMPLAINT
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the ventilation systems predominate over individual issues, and representative class treatment is
appropriate.

23. In addition, Plaintiff has been maintaining the balconies and sliding glass doors
which are exclusive use common areas, and which are suffering from unintended water
penetration which causes property damage to the Unit interiors. In the alternative, if Plaintiff for
any reason lacks standing under Civil Code 1368.3 to sue for the failure of these components, or
any other building components within the Subject Project, to comply with the Performance
Standards, then Plaintiff brings suit concerning these issues pursuant to California Code of Civil
Procedure 382, since the design of all the sliding glass doors and balconies was done by
defendants “SOM/HKS;” all the balconies were constructed by defendants “WEBCOR” as general
contractor; all the development work was done by defendants “PROLOGIS/CATELLUS” and
their successor in interest, “MISSION PLACE LLC;” and the balconies and sliding glass doors are
allowing unintended water intrusion and resulting property damage for the same reasons. Asa
result, the common questions of law and fact concerning the balconies and sliding glass doors
predominate over individual issues, and representative action treatment is appropriate.

24, Plaintiff is an adequate class representative, and will fairly and adequately represent
the interests of its members because it has the financial resources required to engage mechanical
engineers, environmental hygienists, and other experts in the subjects of solar gain, ventilation,
climate control, and related disciplines; Plaintiff has far more resources available to pursue the
technical issues involved in the case than do the individual homeowners, Plaintiff has already
expended over $3,000,000 in performing testing of the building components, in engaging
attorneys, architects and engineers to study the nature, extent and causation of the buildings’
violation of the Performance Standards and the Functionality Standards, contracts, and statutory
requirements, in performing computer modeling of the solar heat gain issues, and in aggressively
pursuing these claims. No owner acting on his or her own would have the financial resources
required to litigate these claims, and representative treatment is thus appropriate and necessary.
The claims of the Plaintiff Association and of its elected board members are typical of the

Members’ claims. There is a well-defined community of interest in the common questions of law

PLAINTIFF’S THIRD AMENDED COMPLAINT
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and fact affecting the parties to be represented, Common questions of law and fact include
whether the Beacon was a “conversion” within the meaning of Civil Code 895 et seq., whether the
solar heat gain issues and the conditions affecting the balconies and the sliding glass doors violate
the Performance Standards of Civil Code §§ 896 and 897; whether Defendants violated statutes
and hence were negligent per se with respect to the heat gain issues, balconies, sliding glass door
or any other components as to which Plaintiff lacks standing to bring a claim under Civil Code
1368.3 if Civil Code §§ 895 et seq is inapplicable to the Subject Property for any reason; whether
the Defendants were liable for the alleged conditions because of strict liability, negligence, or
breach of implied warranty if Civil Code §§ 895 et. seq. is inapplicable for any reason, whether
Defendants “WEBCOR,” “MISSION PLACE, LLC” and the SUBCONTRACTOR
DEFENDANTS followed the approved plans and specifications; and what repairs are necessary in
order to remedy the defective conditions,

25. The class members are identifiable from the owner list maintained by Plaintiff, and
from official records of the San Francisco County Tax Assessor’s Office and of the San Francisco
County Recorder’s Office.

26. Because there are 595 separate interests within the 250 and 260 King Street
buildings, separate actions by the owners and residents of each of the units would overwhelm the
court system; adjudication of these issues in the form of a class action is more efficient for the
court system, and will promote judicial economy.

27. The Plaintiff is able to notify the class members of the pendency of the class action
by sending mailings to them and by utilizing the Association’s Website.

28, Plaintiff will send notices to class members allowing them to opt out of the class if
they wish to do so.

29. Plaintiff has counsel who are experienced in construction defect litigation and in
class actions.

30. | The members of the Plaintiff Board of Directors are elected by the class members,
and have the same interests as the other class members in pursuing this action, and there are no

conflicts of interest between Plaintiff and the class members.

PLAINTIFF'S THIRD AMENDED COMPLAINT
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31. Plaintiff is further informed and believes and thereon alleges that defendants
MISSION PLACE LLC, MISSION PLACE MEZZANINE LLC, MISSION PLACE MEZZ
HOLDINGS LLC, MISSION PLACE PARTNERS LLC, CENTURION REAL ESTATE
INVESTORS IV LLC, CENTURION REAL ESTATE PARTNERS LLC, CATELLUS URBAN
DEVELOPMENT CORPORATION and Defendants Does 175 through 200, made distributions of
profits earned from the development of the Beacon Residential Community to their constituent
investors at a time when said defendants knew, or should have known, that these entities had large
unfunded liabilities to the Plaintiff. Accordingly, the investors are liable to Plaintiff to the extent
of the distributions they received under California Corp. Code 17254 and/or 17355.

32. PROLOGIS, CATELLUS THIRD AND KING, LLC, CATELLUS
DEVELOPMENT CORPORATION, CATELLUS COMMERCIAL DEVELOPMENT CORP.,
CATELLUS OPERATING LIMITED PARTNERSHIP, CATELLUS URBAN DEVELOPMENT
CORPORATION, and THIRD AND KING INVESTORS LLC shall hereafter collectively be
referred to as “PROLOGIS/CATELLUS.”

33. MISSION PLACE LLC, MISSION PLACE MEZZANINE LLC, MISSION
PLACE MEZZ HOLDINGS LLC, MISSION PLACE PARTNERS LLC, CENTURION REAL
ESTATE INVESTORS IV, LLC, CENTURION REAL ESTATE PARTNERS, LLC and
CENTURION PARTNERS LLC shall hereafter collectively be referred to as “MISSION PLACE
LLC.”

34. | WEBCOR CONSTRUCTION, INC., WEBCOR BUILDERS, INC., WEBCOR
CONSTRUCTION, INC. individually and doing business as WEBCOR BUILDERS and
WEBCOR CONSTRUCTION LP individually and doing business as WEBCOR BUILDERS shall
hereafter collectively be referred to as “WEBCOR.”

35. | SKIDMORE OWINGS & MERRILL LLP, HKS, INC., HKS ARCHITECTS, INC.
and HKS INC. individually and doing business as HKS ARCHITECTS, INC. shall hereafter
collectively be referred to as “SOM/HKS.”

PLAINTIFF’S THIRD AMENDED COMPLAINT
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36. Plaintiff is informed and believes and thereon alleges that Defendants
“PROLOGIS/CATELLUS” and “MISSION PLACE LLC” as developer and co-declarants and
their respective general partners developed the Subject Property by causing the construction and
repair thereon of the herein described improvements. In such capacity, said Defendants, and each
of them, improved, promoted, advertised and sold the dwelling units to Plaintiffs members, as
more fully set forth in: (a) The Public Report which was issued by the California Department of
Real Estate with respect to the Subject Property (hereinafter referred to as the "Public Report")
and delivered to members of the Plaintiff Association and; (b) the documents submitted by said
Defendants to the California Department of Real Estate and upon which the Public Report was
issued. At all times therein mentioned said Defendants, and each of them, acted as the developers,
its general partners, owners, designers, builders, contractors and sellers of the Subject Property. It
was the intent of the foregoing Defendants, and each of them, that said property and structures
situated thereon were to be used for residential purposes.

37, Plaintiff is informed and believes and thereon alleges that Defendants
“PROLOGIS/CATELLUS”, “MISSION PLACE LLC,” “WEBCOR”, “SOM/HKS” and Does 2
through 65, and Does 150 through 200, inclusive, entered into written contracts and subcontracts
with each other and other Defendants herein for the purpose of acting as sellers, developers,
contractors, designers, subcontractors, material men, suppliers and/or builders with respect to the
construction of the subject improvements. Plaintiff is informed and believes and thereon alleges
that at the time that such contracts and subcontracts were entered, Defendants
“PROLOGIS/CATELLUS”, “MISSION PLACE LLC”, “WEBCOR”, “SOM/HKS” and Does 51
through 65 and Does 150 through 200 inclusive knew (a) that principals, agents or employees of
“PROLOGIS/CATELLUS” and/or “MISSION PLACE LLC” would ultimately be the sole
shareholders, officers and directors of Plaintiff Association; (b) that title to the Subject Property
would ultimately be transferred to the Members of Plaintiff Association; (c) that such Plaintiff
Association and/or its assignor, the Commercial Association, would ultimately be responsible for
the maintenance and repair of the various building components that were being developed,
designed, constructed and/or supplied pursuant to the contracts and subcontracts. Plaintiff is

PLAINTIFF'S THIRD AMENDED COMPLAINT
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further informed and believes and thereon alleges that each of the contracts and subcontracts
expressly (a) identified the Subject Property; and (b) provided that the work to be performed under
such contracts and subcontracts was to be in accordance with the approved plans, specifications
and construction drawings prepared in connection with the Subject Property and all building codes
related thereto. These contracts and subcontracts were, therefore, made for the express and
immediate benefit of Plaintiff. Plaintiff was a third party beneficiary of the foregoing contracts
under the principles set forth in Gilbert Fin. Corp. v. Steelwork Contracting Co, (1978) 82 C.A.3d
65, among other cases. Plaintiff is informed and believes and thereon alleges that said Defendants,
and each of them, did in fact, act as sellers, developers, contractors, designers, subcontractors,
material men, suppliers and/or builders with respect to construction of the subject improvements.

38, Plaintiff is informed and believes and thereon alleges that Defendants
“PROLOGIS/CATELLUS”, “MISSION PLACE LLC”, and “WEBCOR” are and at all times
therein mentioned were business entities, individuals, corporations and organizations associated
together by way of some agreement, joint venture, partnership, or decision between them to
participate for the purpose of acquiring the Subject Property and/or constructing the subject
improvements thereon, and participating in some manner or fashion between them as developers,
owners, merchants, suppliers, contractors, subcontractors, builders, and/or sellers, respecting the
subject dwelling units and subject improvements; that said Defendants intended to and did act as
owners, merchants, contractors, subcontractors, developers, builders, and sellers respecting the
sale of the Subject Property and subject dwelling units to members of the public. Plaintiff is
unaware of the precise and exact nature of the relationship among these Defendants and the part
each played in the acquisition, planning, development, financing, construction, and sale of the
Subject Property and the improvements to the Subject Property. When the true and precise nature
of their participation and relationship becomes known this pleading will be amended to reflect the
same, or it will be established at the time of trial according to proof.

39. Plaintiff is informed and believes and thereon alleges that each of the following
Defendants participated in the development of the Subject Property and the construction of the
improvements upon the Subject Property as follows:

PLAINTIFF'S THIRD AMENDED COMPLAINT
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a. Defendants “PROLOGIS/CATELLUS” and “MISSION PLACE
LLC” were the original developers, co-declarants and/or their respective general
partners and/or joint venturers respecting the subject project, obtained the services
of and entered into agreements with certain of the other Defendants for the purpose
of constructing the improvements on the Subject Property. It was the intent of such
Defendants, and each of them, that the said property, common areas and the
improvements on the said property be sold to and used by members of the public
for residential purposes;

b. The original developers commenced to develop the subject project
by causing the construction of the herein above described improvements and
residential dwelling units on the Subject Property. Thereafter, and by written
contracts of purchase and sale, said residential dwelling units, real property,
common areas and improvements on the Subject Property were sold to one another
and ultimately to members of the Plaintiff Association.

c Defendants “PROLOGIS/CATELLUS”, “MISSION PLACE LLC”,
“WEBCOR”, the “SUBCONTRACTOR DEFENDANTS,” and Does 150 through
200, inclusive, participated as the development entity, its joint venturers, general
partners, builders, contractors, suppliers, insurers, material men and subcontractors
with respect to the development of the. Subject Property and construction of the
subject residential dwelling units, common areas and other improvements thereon.
In performing such services, said Defendants, and each of them did so with the
knowledge and understanding that said property, improvements to said property
and common areas would be sold to the general public for use as residential
dwelling units;

d. Defendants “SOM/HKS” and Does 51 through 65 and 150 through
200, inclusive, provided architectural and engineering services with respect to the
design of the Subject Property, the subject residential dwelling units, common areas

and other improvements thereon. Such design services included, but were not

PLAINTIFF'S THIRD AMENDED COMPLAINT
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limited to, architecture, landscape architecture, civil engineering, mechanical
engineering, structural engineering, soils engineering and electrical engineering, as
well as construction administration and construction contract management;

e. Defendants “PROLOGIS/CATELLUS” and “MISSION PLACE
LLC” sold the subject residential dwelling units, Subject Property, improvements
to said property and common areas and respective interests in the Plaintiff
Association to members of the public, including members of the Plaintiff

Association.
FIRST CAUSE OF ACTION
(Civil Code Title 7 - Violation of Statutory Building Standards for Original Construction
Civil Code Sections 895 et seq.)
(ALL DEFENDANTS)

40. Plaintiff incorporates herein by this reference paragraphs 1 through 38 above set
forth.

41. Defendants “PROLOGIS/CATELLUS” and “MISSION PLACE LLC” is each a
"Builder" of the Subject Property pursuant to California Civil Code Section 911.

42. Defendants “WEBCOR”, “SOM/HKS,” the “SUBCONTRACTOR
DEFENDANTS” and Does 51 through 65 and Does 150 through 200 are each, pursuant to
California Civil Code Section 936, “general contractors, subcontractors, material : suppliers,
individual product manufacturers [and/or] design professionals [who] caused, in whole or in part,
a violation of a standard as the result of a negligent act or omission or a breach of contract.”

43. Plaintiff is informed and believes and thereon alleges that during or after 2004,
Defendants “PROLOGIS/CATELLUS” and “MISSION PLACE LLC” entered into purchase and.
sale agreements with certain or all of the original members of the Association in connection with
the purchase and sale of the condominium units which comprise, in part, the Subject Property.

44. On or before September 8, 2006, Plaintiff caused to be sent to
“PROLOGIS/CATELLUS,” “MISSION PLACE LLC” and “WEBCOR” a written notice of claim
pursuant to California Civil Code Sections 895 et seq. and 1375. Plaintiff's written notice of

PLAINTIFF'S THIRD AMENDED COMPLAINT
20wo md AH PB ww we

10

claim was supplemented by the following notices of claims that were sent to the Defendants: (a)
Letter from Plaintiff to Daniel E. Berman dated September 20, 2006, a true and correct copy of
which is attached to the Complaint for Damages as Exhibit “A” and incorporated herein by this
reference; (b) Letter from Plaintiff to Peter J. Laufenberg dated September 20, 2006, a true and
correct copy of which is attached to the Complaint for Damages as Exhibit “B” and incorporated
herein by this reference; (c) Letter from Plaintiff to Daniel E, Berman dated September 27, 2006, a
true and correct copy of which is attached to the Complaint for Damages as Exhibit “C” and
incorporated herein by this reference; (d) Letter from Plaintiff to Peter J. Laufenberg dated
September 27, 2006, a true and correct copy of which is attached to the Complaint for Damages as
Exhibit “D” and incorporated herein by this reference; and, (e) Letter from Robert M. Osier, Esq.
to counsel for the Defendants dated November 10, 2006, a true and correct copy of which is
attached to the Complaint for Damages as Exhibit “E” and incorporated herein by this reference,
As a result of the dispatch of such written notices of claims, all statutes of limitation were tolled
on or before September 8, 2006.

45, On November 3, 2006, Plaintiff caused to be sent to “SOM/HKS” a written notice
of claim pursuant to California Civil Code Section 895 et seq. A true and correct copy of such
written notice of claim is attached to the Complaint for Damages as Exhibit “F” and incorporated
herein by this reference.

46. On or about. February 4, 2008, Plaintiff and Defendants
“PROLOGIS/CATELLUS”, “MISSION PLACE LLC” and “WEBCOR” signed a document
entitled “Tolling Agreement Regarding The Beacon Residential Owners Association’s SB 800
Claim (‘Tolling Agreement’).” By the terms of such Tolling Agreement “all periods of limitation
set forth in CC 895, et seq, for the investigation, inspections, testing and offers of repair of the
alleged SB 800 Claim shall be tolled and suspended as of September 20, 2006, the date the
Association first submitted its claim under Civil Code §§ 895 et al. The tolling and suspension of
the investigation, inspection, testing and repair period shall continue until such time as this
{Tolling Agreement] is terminated ... or September 20, 2008, whichever occurs first ...”

PLAINTIFF’S THIRD AMENDED COMPLAINT
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47. Defendants “PROLOGIS/CATELLUS”, “MISSION PLACE LLC”, “WEBCOR”,
the “SUBCONTRACTOR DEFENDANTS” and “SOM/HKS” have failed to strictly comply with
the provisions of Civil Code Section 895 et seq. Plaintiff consequently brought this action as
pemnitted by Civil Code Section 920.

48. Pursuant to California Civil Code Sections 895 et seq., as "Builders" of the Subject
Property, Defendants “PROLOGIS/CATELLUS” and “MISSION PLACE LLC” are liable to
Plaintiff for violations of certain of the building standards set forth in California Civil Code
Sections 896, 897 and for violation of statutory standards, which is actionable under Civil Code
931 and 943(a). These violations arise out of, pertain to, or are related to the original construction
of the Subject Property.

49, Pursuant to California Civil Code Sections 895 et seq., as general contractors,
subcontractors, material suppliers, individual product manufacturers, and design professionals
who caused, in whole or in part, a violation of a particular standard set forth in California Civil
Code Sections 896 and 900 and/or caused property damage which is actionable under Civil Code
897 and/or violated a statute, which is actionable under Civil Code 931 and 943(a), as the result of
an act or omission or breach of contract, Defendants “WEBCOR”, “SOM/HKS” and the
SUBCONTRACTOR DEFENDANTS and Does 51 through 65 and Does 150 through 200 are
liable to Plaintiff for violations of statutes and of certain of the building standards set forth in
California Civil Code Sections 896, and/or because they caused property damage which is
actionable under CC 897, and/or they violated a statute, which is actionable under Civil Code 931
and 943. These violations arise out of, pertain to, or are related to the original construction of the
BEACON RESIDENTIAL COMMUNITY development.

50. The acts and omissions of Defendants “PROLOGIS/CATELLUS”, “MISSION
PLACE LLC”, “WEBCOR”, “SOM/HKS,” the SUBCONTRACTOR DEFENDANTS and Does
51-200 have resulted in violation of certain of the performance and functionality standards set
forth in California Civil Code Section 896, 897, and 900, These violations include the following:

A. The violations identified in Exhibits “A”, “B”, “C”, “D”, “E” and

“F” to this Complaint for Damages and incorporated herein by this reference.

PLAINTIFF’S THIRD AMENDED COMPLAINT
22B. There is excessive heat gain through the windows in the
condominium units rendering such units uninhabitable, unbealthy and unsafe
during ce