Motion,Ex Parte: 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 ELECTRONICALLY
3911 Harrison Street FILED
Oakland, CA 94611 Superior Court of California,
Tel.: (510) 653-8886 County of San Francisco}
Fax: (510) 653-8889 MAR 15 2013

Clerk of the Court

Kenneth Katzoff, Esq. (SBN 103490) BY: WILLIAM v Naputy Clerk

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

1500 Park Ave #300

Emeryville, CA 94608

TEL: (510) 597-1990

FAX: (510) 597-0295

Attorneys 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, [Assigned to the Honorable Curtis Karnow]
Plaintiff, PLAINTIFF’S MEMORANDUM OF
; POINTS AND AUTHORITIES IN SUPPORT
v. OF [TS MOTION FOR SEPARATE TRIAL
OF CLAIMS AGAINST SKIDMORE,
CATELLUS THIRD AND KING LLC; OWINGS & MERRILL AND HKS, INC,
CATELLUS DEVELOPMENT AND TO RESET CASE FOR TRIAL ON
CORPORATION et al. JUNE 3, 2013
Defendants.
HEARING DATE: April 10, 2013
And Related Cross-Actions. we ua am.
TRIAL DATE: NoneoD eNO OH BF WN

TABLE OF CONTENTS

TL. INTRODUCTION... cesssssssssessssessneessssecsnssssessssnsesanecnrsesesaneeanseesnsens sosesveasoansnsenessceanenesens: soe 4

I, FACTS wd

TH. PROCEDURAL ISSUES ...sscssssssesnsseeccesseesssessnssanseaseessnenn ssvsvecasenoneansansanseneneesveanegsernensenaes 5
IV, ISSUES INVOLVING SKIDMORE AND HKG......cccsssssssssssssesessssrsssessesssesssesasensessensniens 7
V. ARGUMENT... ceseseneenens soneeseosonsonnosesucessonsscssassussvnnsnsesssuseessncssessuasssnasecssessoney ssssssreessssssveoees B

A. This Court Has Discretion to Order a Separate Trial of all Causes of Action

against Skidmore and HKS under California Code of Ciyil Procedure
Sections 379.5 and/or 1048(b)

1. Statutory Authority.......ccccesssssssssessscessessessssssestsnessnenveentensessensescesseossesnssnstsceesesoseenee 8
2. Plaintiff Has Been Diligent and Would Be Prejudiced by Further Delay......008 10

3. Health and Safety Issues are Pervasive in Plaintiff’s Claims, and Its Members
Would be Prejudiced by Further Delays in Resolving Them.....ssussssereeerssessen LO

4, Further Delays Would Cause Unconscionable Financial Hardship to Plaintiff
and to its Members, ...csscssssssessssersessssessseesessnenssesseesnessarensesssessaseesenn ssaneaneetecesenes soo LL

5. Denying Separate Trials Could Subject Plaintiff to Mandatory Dismissal
Under the Five-Year Statute of Limitations Through No Fault of Plaintiff.......... il

6. Because no Other Defendant Has a Pending Cross-Complaint against
Skidmore and only the Mission Place Defendants Cross-Complained
Against HKS, the Other Defendants Will Not be Prejudiced by an Order
Requiring a Separate Trial of Plaintiffs Claims against the Architects. .......000 12

B. This Court Should Grant Calendar Preference as Needed to Set this Case for
Trial on June 3, 2013...

C. If this Court Declines to Order a Separate Trial of Plaintiff's Claims Against

HKS and Skidmore, It Should Find Under 583.340 (c) that Plaintiff Is Protected
from the Running of Section 538,310’s Five-Year Statute. ...

VI. CONCLUSION ou. eecsesssscsssscsesssssnsecnsccnessssessenesenseescsesneenessssees savsensenensesavessereeaevereveeorsnes 15

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR
SEPARATE TRIAL OF CLAIMS AGAINST SKIDMORE, OWINGS & MERRILL AND HKS
1TABLE OF AUTHORITIES

Cases

California Supreme Court Cases

Bruns v, E-Commerce Exch. (2011) 51 Cal. 4th 717. ceseeseeeceeeseeeneetsessseeseneeneene 12, 14, 15
Moran v, Sup. Ct, (1983) 35 Cal. 2d 229 cecssessesssecssesssessessseessessecssesseecssnrenneeseeeseeesesssneseneennees 3
Weeks v. Roberts (1968) 68 Cal. 2d 802, 807 ....c.sccssssssssscscssssessesssessssssnessresssessessseestsecseeesesee EF

California Court of Appeal Cases
Bratton & Moretti Finerman & Son (1959) 171 Cal. App. 2d 440..

Dick v, Sup. Ct. (1986) 185 Cal. App. 31d 1159 essences LA
Finley v, Sup. Ct. (2000) 80 Cal. App. 4th 1152... cscs essseessecsessessesenscatssnessessussserssseesneenees D

Grappo v. Coventry Fin. Corp. (1991) 235 Cal. App. 3d 496...

Omaha Indem. Co. v. Sup. Ct. (1989) 209 Cal. App. 3rd 1266 voc ceesesesseecectecteessessseseenneeneens 9
Paul &. lacomo Structural Eng’r, Inc. vy. Rizzo (1984) 162 Cal. App. 3d 803 wc eeeceeesrecteeteeae 5
Vogelsang v. Owl Trucking Co. (1974) 40 Cal. App. 3d ccsesseeccsesessesseeeseseetesteerseesennseees 14
Statutes

Cal. Civ. Code §§ 895 ef SCG. ..ccctcesseneetectsstesesestesteeeeeenes

Cal. Civ. Code § 896 .eecccccsssssssesesssessssesessseesssssssnsessnsecsssesssvessssvessavecsstesseveassnssnveecaneesarsessuresssaneessnes 7
Cal. Civ. Code § 91 Dec ccccsesessesssneenvecenseenssnnessnsanecassccsssuveaneseaseersennseracsessssesansenesansensssssensessass 7
Cal. Civ. Code § 936 ...ccccsccsssesssessssssssesssesassonerssvessessenscansaveganseuscerecsuecsncsosssasenneenteanequisesnensavesnere 7
Cal. Civ, Code § 1432... .ccscccesssssssesssecseecstscnsssnsessescanscsssaneenurectssesesnsesnecsessseenecseesseesiseennessneeses 13

Cal. Code Civ. Proc. § 36(d)
Cal. Code Civ, Proc. § 36(€) cece cccssecssessecstesenesseeneessenssseerestecnteasecessesnecseescesesnesneanesessassnsenses

Cal. Code Civ, Proc, § 379.5.
Cal. Code Civ, Proc. § 583.310 coscececseecsseesssssssessesesessssssesssesesssssensssusssseseeseeeteessseeesss POSSIM
Cal. Code Civ. Proc. § 583,340 vo eecssectesesesnsesssesseseseseeasssesssvesnessssessssessesssseseees DL, 12

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR
SEPARATE TRIAL OF CLAIMS AGAINST SKIDMORE, OWINGS & MERRILL AND HKS
2CMU eI DH BW

Cal, Code Civ. Proc. § 583.340(b)..cecsssesssessssssecsecsssesssseenssesessesrsassessersseseeucarsueacaercasseensaeeaves
Cal, Code Civ. Proc. § 583,.340(C) ...cecscsssessessescsssesnessssessessssssssssssaesereesrsseesaeesens 4, 12, 14,
Cal. Code Civ. Proc. § 583.360 .cccicscessssssssesesssssecssssssasessesnsssessssssseesseescascsneensaneeveesesscsssenoe Il,
Cal. Code Civ. Proc. § 916 weccccscessesssssssssesesnessesnecsscssssuesssassaneessasssessusanssusavssssuesesasesrecssssesnsenees

Cal. Code Civ. Proc. § 916(a)

12

15

Cal. Code Civ. Proc. § 1048(b)...ccsscsessssesseresssneessseessssessesssseessecsessssnessserasneesssestsaresssseensanes By O

Cal. R. Ct. 3.1335. cccccecsssesssesssvesssssersssessssesssssessssssssevecssaveessvessansevsarcssveesssnecsietsanmessanescerseennvensaneetes

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR,
SEPARATE TRIAL OF CLAIMS AGAINST SKIDMORE, OWINGS & MERRILL AND HKS
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1 INTRODUCTION

Comes now plaintiff BEACON RESIDENTIAL COMMUNITY ASSOCIATION
(‘Plaintiff’) and respectfully submits the following Memorandum of Points and Authorities in
support of its Motion for Separate Trial of Claims against Skidmore-Owings-Merrill and HKS
Architects, Inc. and to Reset Case for Trial on June 3, 2013.

This motion is necessary because Plaintiff appealed this Court’s order dismissing its
claims against architects HKS Architects, Inc. (“HKS”) and Skidmore-Owings-Merrill
Skidmore”), the Court of Appeal reversed the trial court’s order and judgment; and the
California Supreme Court subsequently granted review on February 27, 2013.

Therefore, this Court has no jurisdiction over Plaintiffs claims against HKS and
Skidmore, but has jurisdiction over the other claims and parties. Plaintiff has sought redress
since 2006. Further delay would prejudice Plaintiff. Such prejudice could include mandatory
dismissal under California Code of Civil Procedure Section 583.310. This Court vacated the
February 4, 2013 tial date, through no fault of Plaintiff. Delaying trial further, until the
Supreme Court finishes its review, would cause Plaintiff irreparable harm. Thus, Plaintiff asks
that this Court grant the calendar preference necessary to set this case for trial against all parties
other than Skidmore and HKS on June 3, 2013 and that it order a separate trial of Plaintiff's
claims against those parties, because the owners and residents at the Beacon have waited seven
years for their day in court.

In the alternative, Plaintiff requests a conclusive judicial finding under California Code of
Civil Procedure Section 583.340(c) that it is “impossible, impracticable or futile” to bring the
case to trial within the five-year period set forth in Section 583.310. Such a finding would
protect Plaintiff from the draconian results that would ensue if Plaintiff were unable to get the

case to trial within the five-year period mandated by Section 583.310.

i FACTS

Plaintiff has sought recovery for design and construction defects in this 595-unit

condominium complex since it sent its notice under the Builders’ Right to Repair Act, California

PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR,
SEPARATE TRIAL OF CLAIMS AGAINST SKIDMORE, OWINGS & MERRILL AND HKS
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Civil Code Sections 895 e7 seq., to Defendants on September 8, 2006 (“Plaintiffs Notice”). A
true and correct copy of Plaintiff's Notice is attached as Ex. A to Plaintiffs Third Amended
Complaint (“TAC”), attached as Ex. D to Plaintiff's Request for Judicial Notice (“RJN”). After
two years of futile negotiations with Defendants, this lawsuit was filed on August 8, 2008. A
true and correct copy of Plaintiffs original complaint is attached as Ex. A to the RJN.

The case was assigned to the Complex Litigation Department, which assigned the case a

February 4, 2013 trial date, which was vacated on January 2, 2013 through no fault of Plaintiff.

See RIN, Ex. B (1/2/13 Transcript of Proceedings) and Ex. C (1/8/13 Transcript of Proceedings).
Unless an exception in the Code of Civil Procedure applies,' the five-year statute will run as to

all parties other than Skidmore and HKS unless trial commences by August 7, 2013.

Il. PROCEDURAL ISSUES

After the original complaint was filed on August 8, 2008, Defendants interposed
numerous demurrers. Some were overruled; some were sustained with leave to amend; and
others were sustained without leave to amend. Plaintiffs former counsel then filed a First
Amended Complaint and a Second Amended Complaint. Defendants also interposed demurrers
to the First Amended Complaint, which resulted in further amendments.

Plaintiffs present counsel substituted into this case in March 2011 and filed the
operative Third Amended Complaint (“TAC”) in April 2011. The TAC was filed before
Defendants answered the Second Amended Complaint. Ali Defendants interposed demurrers to
the TAC. Due to the heavy calendar in the Complex Litigation Department, the demurrers were
not heard until October of 2011, Declaration of Ann Rankin (Rankin Decl.”), 93.

In October 2011, this Court overruled all other demurrers, but sustained without leave to
amend architects HKS’ and Skidmore’s demurrers on the ground that they owed no duty to
Plaintiff or its members. A true and correct copy of the Order Sustaining Demurrers is attached

as Ex, E to the RJN. Plaintiff appealed from the resulting judgments dismissing HKS and

' Plaintiff does not cede its position that this Court’s vacating the previous trial date on January 2, 2013 without setting a
new date tolled Section 583.310’s mandatory five-year period. See Moran v, Sup. Ct. (1983) 35 Cal. 2d 229, 237-39; Paul
E, lacomo Structural Eng'r, ine. v. Riszo (1984) 162 Cal. App. 3d 803, 807-08.

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR
SEPARATE TRIAL OF CLAIMS AGAINST SKIDMORE, OWINGS & MERRILL AND HKS
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Skidmore, and in December 2012, the Court of Appeal for the First District reversed this Court’s
order. The Court of Appeal held that HKS and Skidmore did owe a duty of care to Plaintiff
under Civil Code Sections 895 ef seg. (“SB 800”) and common law. A true and correct copy of
the Court of Appeal’s Opinion is attached as Ex. F to the RJN.

On February 27, 2013, the California Supreme Court granted review of the Court of
Appeal’s decision. A true and correct copy of the California Supreme Court Docket is attached
as Ex. G to the RJN.

On January 12, 2012, the Honorable Richard Kramer set this case for trial on February 4,
2013, Rankin Decl., (7.

However, on January 2, 2013, Judge Kramer vacated the trial date. See RJN, Exs. B, C.
Judge Kramer acknowledged that Plaintiff's counsel had been “diligent” and “persistent” with
respect to the prosecution of the case. His main reasons for vacating trial were the impending
assignment of a new judge to the complex litigation department and his own impending
reassignment to a different department. Judge Kramer did not believe that Judge Karnow would
be in a position to try the case by February 4, 2013. Judge Kramer therefore set a January 17,
2013 trial-setting conference. Judge Karnow subsequently moved this conference to January 25,
2013. On January 25, 2013, Judge Karnow indicated that he expected to re-set the trial date at
the March 29, 2013 Case Management Conference, now moved to April 10.

During this case’s first three years, discovery was stayed by court order and/or by the
parties’ agreement to allow time to mediate. Rankin Decl., §12. However, after mediation
failed, depositions commenced in March 2012. id, 13. Since then, depositions have taken
place three to five days a week. Id, §14. Expert depositions commenced in October 2012 and
are expected to be concluded in April 2013. Jd, 413. The parties could have been ready for the
February 4, 2013 trial date by double- or triple-tracking depositions and holding them on the
weekends, but this was unnecessary because of Judge Kramer’s order vacating the trial date. Jd,
qi4.

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR.
SEPARATE TRIAL OF CLAIMS AGAINST SKIDMORE, OWINGS & MERRILL AND HKS
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IV. ISSUES INVOLVING SKIDMORE AND HKS

Plaintiff's TAC contains eight causes of action, only three of which it asserts against
Skidmore and HKS. The Third Cause of Action for Strict Liability applies only to developers
Catellus and Mission Place; the Fourth Cause of Action for Negligence applies only to Catellus
and Mission Place. The Sixth Cause of Action, for Breach of Implied Warranty, is asserted only
against Mission Place. The Seventh Cause of Action for Breach of Third Party Beneficiary
Contract is asserted only against Webcor and the subcontractors, and the Eighth Cause of Action
for concealment is now asserted only against Mission Place. The Eighth Cause of Action was
previously asserted against the Catellus Parties, but those parties were removed from the Eighth
Cause of Action via an order granting summary adjudication,

Plaintiff's First Cause of Action for Violation of Statutory Building Standards for
Original Construction, Civil Code Sections 895, ef seg. (“SB 800”) names Skidmore and HKS.
All other Defendants are also named in the First Cause of Action, which seeks recovery for
various violations of Performance Standards set forth in SB 800. Plaintiff alleges that Catellus
and Mission Place, as developers, are jointly and severally liable for all such violations, and that
HKS and Skidmore are liable for such violations to the extent that their negligence caused the
violations, Plaintiff also alleges that Webcor and the sub-contractors are liable for violations of
performance standards to the extent that their negligence caused the violations.

Plaintiff is willing to go to trial on the First Cause of Action without the claims against
Skidmore and HKS. Under SB 800, Plaintiff believes that the Catellus and Mission Place parties
will be liable for any violations of the Performance Standards in Civil Code Section 896 that are
proven at trial. Cal. Civ. Code §§ 896, 911 (West 2013). If the Court of Appeal decision were
affirmed, HKS and Skidmore would be liabie for these violations if it is proven that their
negligence or breach of contract caused the violation. Jd., §§ 896, 936. Without Skidmore or
HKS in the case, trial is likely to be several weeks shorter, as the architect’s standard of care, and
violation thereof, will not be issues. Rankin Deel., 4 17.

Plaintiff's Second Cause of Action for Negligence Per Se is also pled against all
Defendants. This Cause of Action, like the Third, Fourth, and Fifth, would apply only if this

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR

SEPARATE TRIAL OF CLAIMS AGAINST SKIDMORE, OWINGS & MERRILL AND HKS
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Court determines that this case involves a “condominium conversion” of a project not originally
constructed “for sale,” and that, accordingly, SB 800 is inapplicable.” This is unlikely, because
Catellus and Mission Place recorded a condominium map in the chain of title to the properties
well before they sold the first unit, and, accordingly, complied with none of the San Francisco
Municipal Code’s requirements pertaining to condominium conversions. Moreover, the
governing documents recorded by Catellus and Mission Place recite the applicability of SB 800.
The Second Cause of Action does apply to Skidmore, HKS and to the other parties.

Plaintiff's Fifth Cause of Action for Common Law Negligence is also pled against
Skidmore and HKS, and is also alleged against Webcor and the subcontractors, This cause of
action would apply only if this Court determines that SB 800 is inapplicable because this project
involves a condominium conversion. The Second and Fifth Causes of Action seek relief from

the same conditions that are the subject of the First Cause of Action. See TAC.

Vv. ARGUMENT

A. This Court Has Discretion to Order_a Separate Trial of all Causes of Action
against Skidmore and HKS under California Code_of Civil Procedure

Sections 379,5 and/or 1048(b).

1. Statutory Authority,
California Code of Civil Procedure Section 379.5 allows this Court to make such orders
“as may appear just to prevent any party from being embarrassed, delayed, or put to undue
expense,” Plaintiff will be both “delayed” and “put to undue expense” unless this Court orders a
separate trial against ail parties other than HKS and Skidmore. Otherwise, the trial could be
delayed for two or more years, and Plaintiff would risk mandatory dismissal under Section
583.310. “Where there are multiple defendants, the court under CCP § 379.5, may order

separate trials or make such orders as may appear just to prevent any party from being

? HKS asserts in discovery responses that SB 800 does not govern this case. Rankin Deci., G18, Exs, A & C. Other
Defendants have given evasive answers to this question, when asked in Request for Admissions. fd.

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR
SEPARATE TRIAL OF CLAIMS AGAINST SKIDMORE, OWINGS & MERRILL AND HKS
8embarrassed, delayed, or put to undue expense.” Assembly Journal, June, 1971. The alternative
would be to find that it is “impossible, impracticable or futile” to bring the case to trial prior to
the expiration of Section 583.310’s five-year statute; however, Plaintiff believes an order
granting separate trials is the better course of action because of the importance of avoiding
further delay, for the reasons discussed below.

California Code of Civil Procedure Section 1048(b) grants this Court broad discretion to
order a separate trial to avoid irreparable harm and prejudice. Grappo v. Coventry Fin. Corp.
(1991) 235 Cal. App, 3d 496, 504. Section 1048(b), in relevant part provides:

The court, in furtherance of convenience or to avoid prejudice, or when separate

trials will be conducive to expedition and economy, may order a separate trial of

any cause of action, including a cause of action asserted in a cross-complaint, or

of any separate issue or of any number of causes of action or issues, preserving

the right of trial by jury required by the Constitution or a statute of this state or of

the United States.

(emphasis added). See, e.g. Bratton & Moretti Finerman & Son (1959) 171 Cal. App. 2d 440,
435 (severance appropriate to avoid prejudice), In Bratton, the court upheld the tial court’s
order severing a cross-complaint filed by defendant shippers against certain growers from the
trial of plaintiff's case on an open book account. The court held that severance was appropriate
to avoid added burden and cost to plaintiff, and because defendants were not prejudiced by the
severance.

Severance is a matter of the court’s discretion and is not interfered with on appeal absent
a manifest abuse of that discretion. Omaha Indem. Co. v. Sup. Ct. (1989) 209 Cal. App. 3rd
1266, 1271 (court abused its discretion by refusing to separate trial of landlord’s alleged

negligence from trial of tenants’ alleged failure to purchase insurance required under the lease);

accord, Finley v. Sup. Ct, (2000) 80 Cal. App. 4th 1152, 1163.

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR
SEPARATE TRIAL OF CLAIMS AGAINST SKIDMORE, OWINGS & MERRILL AND HKS
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Plaintiff requests that this Court utilize its discretion to order a separate, later trial on
Plaintiff's claims against Skidmore and HKS. Plaintiff requests that this separate trial occur after
the Supreme Court has completed proceedings on review of the decision in Beacon v. Skidmore.

2. Plaintiff Has Been Diligent and Would Be Prejudiced by Further Delay.

Plaintiff has diligently and persistently sought its day in court for nearly five years and
has tried to solve the problems arising from the Beacon Condominiums’ improper design and
construction for nearly seven years, since it filed its original Notice to the Builder under SB 800
on September 8, 2006. Even at the hearing vacating the February 4, 2013 trial date, Judge
Kramer acknowledged that Plaintiff had been “diligent” and “persistent” in its prosecution of the
case.

3. Health and Safety Issues are Pervasive in Plaintiff's Claims, and Its
Members Would be Prejudiced by Further Delays in Resolving Them.

The San Francisco County Health Department has determined that if data submitted by
Plaintiffs mechanical engineering consultants is correct, some units at the Beacon contain
“health and safety issues” because of elevated interior temperatures arising from solar heat gain
that persist for long periods. Declaration of Anthony Lin (“Lin Decl.”), 943, 4, Ex. A (a letter
from Dr, Rajiv Bhattia, Director of Environmental Health of the San Francisco Health
Department). The TAC contains allegations of other life safety issues, including improperly
constructed firewalls.

The Supreme Court’s review of the First District’s decision concerning the architects’
liability to the homeowners association should not keep the Beacon’s owners and residents from
their day in court in the near future and from seeking recovery of the funds needed to repair the
serious design and construction errors and Performance Standards violations in their homes.

Delay would cause irreparable harm and extremely prejudice Plaintiff and its members.

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR
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4, Further Delays Would Cause Unconscionable Financial Hardship to
Plaintiff and to its Members.

Delay would prolong the period during which the Beacon’s owners are unable to
refinance their mortgages and during which they would have great difficulty in selling their
homes. Lin Decl., 45. Finally, Plaintiff has spent over $6,000,000 on consultant and legal fees
and out-of-pocket costs and expenses necessitated by the problems at the complex. id, 46.
Further delaying Plaintiff's day in court will subject Plaintiff, its members, and its owners and
residents to severe and unreasonable financial hardship and to extreme alleged discomfort and
safety hazards.

5. Denying Separate Trials Could Subject Plaintiff to Mandatory
Dismissal Under the Five-Year Statute of Limitations Through No
Fault of Plaintiff,

Plaintiff faces the expiration of Civil Procedure Sections 583.310 and 583.360’s five-year
statute. Together, these statutes may require dismissal unless a case is brought to trial within five
years. The five years will run on August 8, 2013, unless periods are statutorily excludable.
Plaintiff had a trial date for nearly one year until it was vacated by Judge Kramer for reasons
beyond Plaintiffs control. See RIN, Exs. B, C.

In computing the time within which an action must be brought to trial pursuant to
this article, there shall be excluded the time during which any of the following
conditions existed: (a) the jurisdiction of the court to try the action was
suspended (b) prosecution or trial of the action was stayed or enjoined; (c)
bringing the action to trial, for any other reason, was impossible, impracticable or
futile.

Cal. Code Civ. Proc. §583.340.

Appeal suspends the court’s jurisdiction to try the portion of the case on appeal and tolls
the dismissal statute as to the parties involved. /d., §916. “The perfecting of an appeal stays
proceedings in the trial court upon the judgment or order appealed from or upon the matters

embraced therein or affected thereby, including enforcement of the judgment or order.” Jd.

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR
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However, despite the pendency of an appeal, “{t]he trial court may proceed upon any other
matter embraced in the action and not affected by the judgment or order.” Id., §916(a).

Section 583,340(b) tolls the running of Section $83.310’s five-year statute only when the
stay encompasses all proceedings in the action. In Bruns v. E-Commerce Exch. (2011) 51 Cal.
4th 717, plaintiff's action had pended for nearly seven years before it was dismissed. During that
time, the trial court had ordered stays of all proceedings as well as partial stays for discovery and
other proceedings. Plaintiff argued that under Section 583.340(b), the partial stays should also
be excluded from the mandatory five year period to bring the case to trial, and the Court of
Appeal agreed; however, ihe California Supreme Court reversed.

The California Supreme Court held that when Section 583,340 is read as a whole and in
conjunction with its legislative history and related statutes, it becomes clear that the statute
“contemplates a bright-line, non-discretionary rule that excludes from the time in which plaintiff
must bring a case to trial only that time during which all the proceedings in an action are stayed.”
Bruns, 51 Cal. 4th at 730.

The Supreme Court also stated that partial stays might toll the running of the five-year
statute under Section 583.340(c) if those stays made it “impossible, impracticable or futile” to
bring the case to trial within five years, The Supreme Court noted that the trial court was in a
better position to determine whether Section 583.340(c) applied than a reviewing court and
remanded the case to the trial court to make that determination. /d. at 732.

6. Because no Other Defendant Has a Pending Cross-Complaint against
Skidmore and only the Mission Place Defendants Cross-Complained
Against HKS, the Other Defendants Will Not be Prejudiced by an
Order Requiring a Separate Trial of Plaintiff's Claims against the
Architects,

No other Defendant has cross-complained against Skidmore other than Mission Place,
and Mission Place’s cross-complaint against Skidmore was dismissed. Rankin Dec., 15.
Although all Defendants had a right to cross-complain for declaratory relief secking indemnity
and/or contribution against Skidmore and HKS, only the Mission Place parties cross-complained
against HKS. Jd. Accordingly, an order separating Skidmore and HKS from the trial of the main

case will not prejudice them. Mission Place can still exercise its alleged contractual indemnity

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR,
SEPARATE TRIAL OF CLAIMS AGAINST SKIDMORE, OWINGS & MERRILL AND HKS
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rights against HKS during the trial of the main case, as the cross-complaint against HKS is not
the subject of any appeal.

If, after the trial’s conclusion, the other Defendants believe that Skidmore and/or HKS
owe equitable indemnity, equitable contribution, or express indemnity to them, they can file a
separate action against Skidmore and/or HKS on that basis, since the duty to indemnify does not
arise until the indemnitee sustains a loss. Sve, e.g., Cal. Civ. Code § 1432.

Nor will Skidmore or HKS be prejudiced. If the Supreme Court reverses the Court of
Appeal’s decision, and determines that Skidmore and HKS were properly dismissed, then those
parties would avoid going to trial. If, however, the Supreme Court affirms the Court of Appeal’s
decision, then HKS and Skidmore may proceed to trial and would not have had to sit through a
trial involving alleged breaches of Performance Standards by contractors as to issues that do not
involve any alleged design defects caused by HKS or by Skidmore. Thus, if there is a separate
trial against HKS and Skidmore, it is likely to be far shorter than the first trial against the other
parties, Moreover, the trial of the remainder of the case may be shortened by two to three weeks,
because it will not be necessary or appropriate for Plaintiff to present expert testimony about the
architects’ alleged breach of the standard of care and/or negligent violation of Performance

Standards in SB 800. Rankin Decl., 417.

B This Court Should Grant Calendar Preference as Needed to Set this Case
for Trial on June 3, 2013.

This Court, in its discretion, may and should advance this case for trial as allowed by
California Code of Civil Procedure Section 36(c) and California Rule of Court 3.1335, which

allow this Court to advance a case for trial upon a showing of good cause.

Notwithstanding any other rule of law, the court may in its discretion grant a
motion for preference served with the memorandum to set or the at issue
memorandum and accompanied by a showing of cause that satisfies the court that
the interests of justice will be served by granting the preference.

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR
SEPARATE TRIAL OF CLAIMS AGAINST SKIDMORE, OWINGS & MERRILL AND HKS.
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Cal. Code Civ, Proc. 36(e). Plaintiff did not file an at-issue memorandum or a memo to set
because Judge Kramer set the case for trial under the Rules of the Complex Litigation
Department. Plaintiff did not learn of the need for a motion for preference in setting until Judge
Kramer vacated the February 4, 2013 trial date on January 2, 2013. Rankin Decl., 11.

When a grant of preference is necessary to avoid mandatory dismissal of the case under
Sections 583,310 and 583,360, the party seeking preference has shown reasonable diligence in
prosecuting the action, and the party opposing the motion has made no showing of prejudice, the
possibility of mandatory dismissal is sufficient to compel relief under Section 36(d), and refusal
to do so constitutes an abuse of discretion, Dick v. Sup. Ct. (1986) 185 Cal. App. 3rd 1159,
1164-1168 (construing former Section 36(d), now Section 36 (e)). In Dick, the court held that
the trial court’s refusal to advance the case for trial when Plaintiff had been “reasonably diligent”
was an abuse of discretion where the case was consequently dismissed for Plaintiff's failure to
bring the case to trial within the five-year statute and the reason for delay was court congestion.
‘The court characterized this result as “monstrous.”

The current motion for calendar preference is sufficiently timely, per Dick. See also
Weeks y. Roberts (1968) 68 Cal. 2d 802, 807 (motion filed 28 days prior to running of five-year
statute was timely); Vogelsang v. Owl Trucking Co. (1974) 40 Cal. App. 3d 1068, 107 (same as

to motion filed 46 days before running of the five-year statute).

Cc If this Court Declines to Order a Separate Trial of Plaintiff's Claims Against
HKS_and Skidmore, It Should Find Under 583.340 (c) that Plaintiff Is

Protected from the Running of Section 538.310’s Five-Year Statute,

If this Court declines to order a separate trial of Plaintiffs claims against HKS and
Skidmore and instead holds the entire case in abeyance until conclusion of the Supreme Court’s
review, it should find under Section 583.340(c) that Plaintiff is protected from the five-year
statute, which would otherwise require mandatory dismissal of Plaintiff's case. If appropriate,
this Court should also stay the case pending the conclusion of Supreme Court review (although
Plaintiff requests the parties be allowed to complete discovery during the stay to avoid further
delay), In Bruns, the Court of Appeal held that the pendency of an appeal as to one of several
co-defendants might make it “impracticable” to proceed to trial within the meaning of Section

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR,

SEPARATE TRIAL OF CLAIMS AGAINST SKIDMORE, OWINGS & MERRILL AND HKS
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583.340(c). There, the trial court had granted an order “continuing” the trial date until the appeal
was finally resolved. Bruns, 51 Cal, 4th at 724-730. The Court of Appeal held that this order
was the functional equivalent of a “stay.” Id.

Plaintiff has been diligent yet faces the possible dismissal of its claims under the five-
year statute due to circumstances beyond its control. If this Court declines to order a separate
trial as to HKS and Skidmore, this Court should make a finding under Section 583.340(c) to

relieve Plaintiff from mandatory dismissal of its claims.

VI. CONCLUSION

For the foregoing reasons, a separate trial on Plaintiff's claims against Skidmore and
HKS is necessary to avoid prejudice to Plaintiff by further delay of a case that it has diligently
prosecuted for nearly five years, at a tremendous cost. Further delay will continue to subject
Plaintiff and its residents to unsafe living conditions and will risk the loss of Plaintiff's rights due
to the expiration of the five-year statute, despite this Court’s acknowledgement that Plaintiff has
been both “diligent” and “persistent” in its prosecution of this case.

Plaintiff therefore asks that this case be reset for trial on June 3, 2013 and that the trial of
Plaintiff's claims against Skidmore and HKS be delayed until after the Supreme Court decides

the pending appeal.

Dated: March 15, 2043 Respectfully Submitted,
LAW OFFICES OF ANN RANKIN

Tin |?
By Ann | In—

Ann Rankin, Attorneys nt cox

BEACON RESIDENTIAL COMMUNITY
ASSOCIATION

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR
SEPARATE TRIAL OF CLAIMS AGAINST SKIDMORE, OWINGS & MERRILL AND HKS
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