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

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                                KATZOFF & RIGGS

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ANN RANKIN (SBN 83690)
TERRY WILKENS (SBN 118469)
Law Offices of Ann Rankin

3911 Harrison Street

Oakland, CA 94611

Tel.: (510) 653-8886

Fax: (510) 653-8889

KENNETH 8S. KATZOFF (SBN 103490)
ROBERT R. RIGGS (SBN 107684)
SUNG E. SHIM (SBN 184247)

Katzoff & Riggs LLP

1500 Park Ave #300

Emeryville, CA 94608

Tel: (510) 597-1990

Fax: (510) 597-0295

Attorneys for Plaintiff BEACON
RESIDENTIAL COMMUNITY
ASSOCIATION

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

MAR 15 2013

Clerk of the Court
BY: WILLIAM TRUPEK

SUPERIOR COURT OF THE STATE OF CALIFORNIA

CITY AND COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL
COMMUNITY ASSOCIATION,

Plaintiff,

VS.

CATELLUS THIRD AND KING LLC,
etal,

Defendants.

Ne Ne Ne Ne Ne Ne Ne Ne Ne ee ee ee

Deputy Clerk
Case No. CGC 08-478453
CLASS ACTION
PLAINTIFF’S REPLY TO
OBJECTIONS TO EVIDENCE

SUBMITTED IN SUPPORT OF
RENEWED MOTION FOR CLASS
CERTIFICATION

Date: March 22, 2013

Time: 9:00 a.m.

Dept.: 304

Judge: Hon. Curtis E.A. Karnow

Trial Date: TBD

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
MOTION FOR CLASS CERTIFICATIONKATZOFF & RIGGS

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Plaintiff Beacon Residential Community Association (“Plaintiff”) hereby responds
to certain evidentiary objections asserted in the Evidentiary Objections in Support of
Opposition to Renewed Motion for Class Certification as follows:

A. Declaration of Michael Lefler

Material Objected to: Grounds for Plaintiff’s Response to
Objection: Objection:

4. As shown on Exhibit A, 1. Lacks foundation The Lefler Decl. provides adequate
many of the units registered (Evid. Code §§ 402 foundation in setting forth Lefler’s

temperatures over 80 —405, 812-813). qualifications as an expert and
degrees on thousands of investigation of the subject matter.
occasions. Many of the 2. Hearsay (Evid.

units registered Code § 1200.) The Lefler Decl. adequately
temperatures over 90 authenticates the Chart summarizing
degrees and some of the his data attached as Exhibit A as a
units registered writing by the declarant. (Evid.
temperatures over 100 Code § 250.)

degrees. The data, as a

whole, shows a problem The subject matter of the testimony
with overheating of the unit is “sufficiently beyond common
interiors, in my opinion. experience that the opinion of an

expert would assist the trier of fact.”
(Evid. Code § 801(a).)

Expert witnesses are authorized by
statute to reasonably rely upon
hearsay and other inadmissible
matter to form their opinions. (Evid.
Code § 801(b).)

The objection goes to the weight of
the evidence, not the admissibility.

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
MOTION FOR CLASS CERTIFICATIONKATZOFF & RIGGS

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Material Objected to:

5. The overheating
problem, according to the
data we collected, exists in
all buildings, on all
elevations, and in most
units from the second floor
up. The causes of the
problem are the same in all
buildings, on all elevations,
and on all floors. A
substantial number of units
become what most people
would perceive as not just
“uncomfortably warm,” but
“hot.” Temperatures are
significantly higher than
outside ambient
temperatures.

6. Attached as Exhibit B to
this Declaration is an
illustrative diagram
prepared by my office,
showing the distribution of
severely overheated units
on the fifth floor level of all
four buildings of the 250
King Street portion of the
Beacon Project. North is to
the upper right on the
diagram. On this diagram,
units registering interior
temperatures of at least 80
degrees on 91 more days
per year are shown in red.
Units registering such
temperatures 37 to 91 days
per year are shown in

Grounds for
Objection:

1. Lacks foundation
(Evid. Code §§ 402
— 405, 812 — 813).

2. Hearsay (Evid.
Code § 1200.)

1. Lacks foundation
(Evid. Code §§ 402
— 405, 812 — 813).

2. Hearsay (Evid.
Code § 1200).

Plaintiff’s Response to
Objection:

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and
investigation of the subject matter.

The subject matter of the testimony
is “sufficiently beyond common
experience that the opinion of an
expert would assist the trier of fact.”
(Evid. Code § 801(a).)

Expert witnesses are authorized by
statute to reasonably rely upon
hearsay and other inadmissible
matter to form their opinions. (Evid.
Code § 801(b).)

The objection goes to the weight of
the evidence, not the admissibility.

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and

investigation of the subject matter.

The Lefler Decl. adequately
authenticates the diagram
summarizing his data attached as
Exhibit B as a writing prepared by
the declarant. (Evid. Code § 250.)

The subject matter of the testimony
is “sufficiently beyond common
experience that the opinion of an
expert would assist the trier of fact.
(Evid. Code § 801{a).)

”

Expert witnesses are authorized by
statute to reasonably rely upon

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
MOTION FOR CLASS CERTIFICATIONKATZOFF & RIGGS

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Material Objected to: Grounds for
Objection:
violet. Units registering
such temperatures 19 to 36
days per year are shown in
blue. Units registering such
temperatures | to 18 days
per year are shown in green.
Units that did not register
temperatures above 80
degrees are shown in white.
As can be viewed
graphically in Exhibit B,
the overheated units are
evenly distributed and
occur on the courtyard.
portion, as well as the street
facing portion, of the
Beacon Project. Thus, it is
incorrect to state that the
most severely overheated
units are on any one
exposure, vertical stack, or
directional face of the
buildings.

1. Lacks foundation
(Evid. Code §§ 402
—405, 812 — 813).

7. Attached as Exhibit C to
this Declaration is an
illustrative diagram
prepared by my office,
showing the distribution of
severely overheated units
on the fifth floor level of all
four buildings of the 260
King Street portion of the
Beacon Project. North is to
the upper right on the
diagram. On this diagram,
units registering interior
temperatures of at least 80
degrees on 91 or more days

2. Hearsay (Evid.
Code § 1200).

Plaintiff’s Response to
Objection:

hearsay and other inadmissible
matter to form their opinions. (Evid.
Code § 801(b).)

The objection goes to the weight of
the evidence, not the admissibility.

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and

investigation of the subject matter.

The Lefler Decl. adequately
authenticates the diagram
summarizing his data attached as
Exhibit C as a writing prepared by
the declarant. (Evid. Code § 250.)

The subject matter of the testimony
is “sufficiently beyond common
experience that the opinion of an
expert would assist the trier of fact.

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
MOTION FOR CLASS CERTIFICATIONKATZOFF & RIGGS

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Material Objected to: Grounds for
Objection:
per year are shown in red.
Units registering such
temperatures 37 to 91 days
per year are shown in
violet. Units registering
such temperatures 19 to 36
days per year are shown in
blue. Units registering such
temperatures | to 18 days
per year are shown in green.
Units that did not register
temperatures above 80
degrees are shown in white.
As can be viewed
graphically in Exhibit C,
the overheated units in 260
King Street are also evenly
distributed, and also occur
on the courtyard portion, as
well as the street facing
portion, of the Beacon
Project. Thus, again it is
incorrect to state that the
most severely overheated
units are on any one
exposure, vertical stack or
directional face of the
buildings.

1, Lacks foundation
(Evid. Code §§ 402
—405, 812 — 813).

8. Our firm has studied the
entire ventilation system of
all eight buildings of the
Beacon Project. As a result
of this study, we have
concluded that the
ventilation system as to the
interiors of the habitable
spaces fails to meet the
minimum building code

Plaintiff’s Response to
Objection:

(Evid. Code § 801 (a).)

Expert witnesses are authorized by
statute to reasonably rely upon
hearsay and other inadmissible
matter to form their opinions. (Evid.
Code § 801(b).)

The objection goes to the weight of
the evidence, not the admissibility.

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and

investigation of the subject matter.

The subject matter of the testimony
is “sufficiently beyond common
experience that the opinion of an
expert would assist the trier of fact.
(Evid. Code § 801(a).)

”

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
MOTION FOR CLASS CERTIFICATIONKATZOFF & RIGGS

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Material Objected to:

requirements in several
respects. Apart from code
considerations, the design
and as-built ventilation in
the habitable spaces is

inadequate and

unreasonably poor, in my

opinion. This lack of

adequate ventilation is a
contributing factor to the
overheating condition at the
Beacon Project, in my

opinion.

9. The Beacon Project
includes buildings that are
noise-impacted, in the sense
that due to the acoustical

environment (“street

noise”), the California
Building Code provides that
the windows cannot be

opened without

unacceptable acoustical
impacts. Acoustical tests

made at the time the

buildings were designed.
showed that the sound
levels from the street, the

ballpark, and the train

station across the street
exceed 75 decibels except
on the courtyard side of the
building, and thus, under
the California Building
Code, this building is a
noise-impacted building
such that the windows

cannot be used for

Grounds for
Objection:

1, Lacks foundation
(Evid. Code §§ 402
—405, 812 — 813).

2. Lack of personal
knowledge (Evid.
Code § 702(a)).

3. Probative value
outweighed by risk
of unfair prejudice,
confusion of issues.
(Evid. Code. §
352.)

4, Legal
conclusions and the
manner in which
the law should
apply to particular
facts are not subject
to expert opinion.
(WRI Opportunity
Loans HI, LLC v.
Cooper (2007), 154

Plaintiff’s Response to
Objection:

The objection goes to the weight of
the evidence, not the admissibility.

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and
investigation of the subject matter to
provide the stated testimony and
opinions.

The subject matter of the testimony
is “sufficiently beyond common
experience that the opinion of an
expert would assist the trier of fact.”
(Evid. Code § 801(a).)

Expert witnesses are authorized by
statute to reasonably rely upon
hearsay and other inadmissible
matter, such as information of which
they don’t have personal knowledge,
to form their opinions. (Evid. Code
§ 801(b).)

An opinion that is otherwise
admissible is not objectionable
because it embraces the ultimate
issue to be decided by the trier of

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED

MOTION FOR CLASS CERTIFICATIONKATZOFF & RIGGS

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Material Objected to: Grounds for
Objection:
Cal.App.4" 525,
523, fn. 3 (“WRI”);
Downer v. Bramet
(1984) 152

Cal. App.3d 837,
841 (‘Downer ’”’).)

ventilation. The acoustical
tests thus disallowed the use
of open windows for
ventilation, except on the
courtyard side of the
building. Even in units that
are not noise impacted, due
to safety considerations the
windows by design have
limiters which allow them
to open only a very smail
amount. This severely
restricts their ability to
admit outside air. In
response to the acoustical
report, the mechanical
engineer designed for fresh
air to enter the interior
spaces through Z ducts
throughout the mid rise
buildings, except on the
courtyard side. The
mechanical engineer
designed a mechanical
ventilation system for the
high rise buildings of the
Beacon Project.

1, Lacks foundation
(Evid. Code §§ 402
—405, 812 — 813).

10. The mid rise buildings
have multiple sub-duct
shafts which provide
exhaust airflow for the

building’s kitchen exhaust 2. Lack of personal

Plaintiff’s Response to
Objection:

fact. (Evid. Code § 805.)

The proffered evidence is directly
relevant to the issue of whether the
construction defects in this action
affect the entirety of the project at
issue, must be repaired on a
“building wide” level and generally
tends to make it more probable than
not that the claims should be
adjudicated on a class basis. There
is no prejudice in admitting this
evidence in this pre-trial motion,
which will not be presented to a jury
and there is no risk of confusion of
issues.

Unlike the disputed expert testimony
in WRI (that a loan was a “shared
appreciation loan” and thus
completely exempt from usury) and
Downer (involving the “calling of
lawyers as ‘expert witnesses’ to give
opinions as to the application of the
law to particular facts” p.842) the
Lefler Decl. does not state “a legal
conclusion” at issue in the matter but
merely correlates the data he
collected to certain basic building
standards.

The objection goes to the weight of
the evidence, not the admissibility.

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and
investigation of the subject matter to
provide the stated testimony and

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
MOTION FOR CLASS CERTIFICATIONKATZOFF & RIGGS

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Material Objected to:

fans (above the
refrigerator), clothes dryer,
and bathroom exhaust
systems. The sub-duct
systems provide a negative
pressure on the
condominiums which
causes air to be drawn in
through the Z ducts.
Section 1203.3 of the
California Building Code
requires a total ventilation
rate of two air changes per
hour in all habitable areas
of condominiums. Based
on our field investigation at
the Beacon Project, the Z
ducts in the mid rise
buildings do not bring in
enough air to meet the code
requirement for ventilation
in the habitable areas of the
units, which include the

bedrooms and living rooms.

Grounds for
Objection:

knowledge (Evid.
Code § 702(a)).

3. Probative value
outweighed by risk
of unfair prejudice,
confusion of issues.
(Evid. Code. §
352.)

4, Legal
conclusions and the
manner in which
the law should
apply to particular
facts are not subject
to expert opinion.
C¥RI Opportunity
Loans Il, LLC vy.
Cooper (2007), 154
Cal. App.4" 525,
523, fn. 3 (“WRI”);
Downer v. Bramet
(1984) 152

Cal. App.3d 837,
841 (“Downer ”).)

Plaintiff’s Response to
Objection:

opinions.

The subject matter of the testimony
is “sufficiently beyond common
experience that the opinion of an
expert would assist the trier of fact.”
(Evid. Code § 801(a).)

Expert witnesses are authorized by
statute to reasonably rely upon
hearsay and other inadmissible
matter, such as information of which
they don’t have personal knowledge,
to form their opinions. (Evid. Code

§ 801(b).)

An opinion that is otherwise
admissible is not objectionable
because it embraces the ultimate
issue to be decided by the trier of
fact. (Evid. Code § 805.)

The proffered evidence is directly
relevant to the issue of whether the
construction defects in this action
affect the entirety of the project at
issue, must be repaired on a
“building wide” level and generally
tends to make it more probable than
not that the claims should be
adjudicated on a class basis. There
is no prejudice in admitting this
evidence in this pre-trial motion,
which will not be presented to a jury
and there is no risk of confusion of
issues.

Unlike the disputed expert testimony
in WRI (that a loan was a “shared

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
MOTION FOR CLASS CERTIFICATIONKATZOFF & RIGGS

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Material Objected to:

11. Section 1203.3 of the
California Building Code
and the State Energy Code
Title 24 requires outside air
to be brought into all
habitable rooms. This
means that Z ducts are
required for each bedroom
and living room area in
sound impacted units.
Currently, the building does
not have Z ducts or other
means of air transfer in all
rooms as required to
provide ventilation air to all
habitable areas of the
condominiums. This is a
building code violation, in
my opinion.

Grounds for
Objection:

1. Lacks foundation
(Evid. Code §§ 402
— 405, 812 — 813).

2. Lack of personal
knowledge (Evid.
Code § 702(a)).

4. Legal
conclusions and the
manner in which
the law should
apply to particular
facts are not subject
to expert opinion.
(WRI Opportunity
Loans Il, LLC v.
Cooper (2007), 154
Cal.App.4™ 525,
§23, fn. 3 (“WRI”);
Downer v. Bramet
(1984) 152

Cal. App.3d 837,
841 (“Downer”).)

Plaintiff’s Response to
Objection:

appreciation loan” and thus
completely exempt from usury) and
Downer (involving the “calling of
lawyers as ‘expert witnesses’ to give
opinions as to the application of the
law to particular facts” p.842) the
Lefler Decl. does not state “a legal
conclusion” at issue in the matter but
merely correlates the data he
collected to certain basic building
standards.

The objection goes to the weight of
the evidence, not the admissibility.

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and
investigation of the subject matter to
provide the stated testimony and
opinions.

The subject matter of the testimony
is “sufficiently beyond common
experience that the opinion of an
expert would assist the trier of fact.”
(Evid. Code § 801(a).}

Expert witnesses are authorized by
statute to reasonably rely upon
hearsay and other inadmissible
matter, such as information of which
they don’t have personal knowledge,
to form their opinions. (Evid. Code
§ 801(b).)

An opinion that is otherwise
admissible is not objectionable
because it embraces the ultimate

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
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Material Objected to:

12. The Z duct system
consists of an exterior
louver with an insect
screen, a Z shaped duct in
the wall, an air filter, and a
register. The Z ducts can
be cleaned only from the
exterior of the building, and
accessing them to clean
them requires the use of a
telescoping man-lift or
other large lift. It is
necessary to block off two
lanes on King Street or on
Townsend Street to erect
the lift. The Z ducts are
covered with insect screens
instead of the industry-
standard bird screens. The

Grounds for
Objection:

1. Lacks foundation
(Evid. Code §§ 402
— 405, 812 — 813).

Plaintiff’s Response to
Objection:

issue to be decided by the trier of
fact. (Evid. Code § 805.)

Unlike the disputed expert testimony
in WRI (that a loan was a “shared
appreciation loan” and thus
completely exempt from usury) and
Downer (involving the “calling of
lawyers as ‘expert witnesses’ to give
opinions as to the application of the
law to particular facts” p.842) the
Lefler Decl. does not state “a legal
conclusion” at issue in the matter but
merely correlates the data he
collected to certain basic building
standards.

The objection goes to the weight of
the evidence, not the admissibility.

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and
investigation of the subject matter to
provide the stated testimony and
opinions.

The subject matter of the testimony

is “sufficiently beyond common
experience that the opinion of an
expert would assist the trier of fact.”
(Evid. Code § 801(a).)

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
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Material Objected to:

insect screens quickly
become clogged with
pollution, dirt, dead bugs,
and the like, blocking air
flow. The clogged Z ducts
have reduced outside air
ventilation into the units.
This causes an air exchange
problem and, combined
with the overall building
design, also contributes to
the overheating problem. .

13. It makes no sense
economically for the unit
owners, as individuals, to
attempt to install additional
Z ducts, to install additional
fans, or to pay to rent a
telescoping man lift to clean
or replace the screens on Z
ducts. These conditions
leading to inadequate
ventilation are not caused
by any interior maintenance
problem, The Z ducts can
be cleaned only from the
outside, and not from the
interior of the units.

Grounds for
Objection:

1. Lacks foundation
(Evid. Code §§ 402
— 405, 812 ~ 813).

2. Lack of personal
knowledge (Evid.
Code § 702(a)).

3. Economics is
outside the scope of
the expert’s stated
expertise. (Evid.
Code § 720.)

Plaintiff’s Response to
Objection:

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and
investigation of the subject matter to
provide the stated testimony and
opinions.

The subject matter of the testimony
is “sufficiently beyond common
experience that the opinion of an
expert would assist the trier of fact.”
(Evid. Code § 801(a).)

Expert witnesses are authorized by
statute to reasonably rely upon
hearsay and other inadmissible
matter, such as information of which
they don’t have personal knowledge,
to form their opinions. (Evid. Code

§ 801(b).)

The declarant’s expertise in the field
of heating and ventilation systems
design undoubtedly encompasses
special knowledge of optimizing the
costs to develop and maintain such

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
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Grounds for

Material Objected to:
Objection:

1. Lacks foundation
(Evid. Code §§ 402
— 405, 812-813

14. Two hundred ninety
(290) of the units of the
Beacon Project are in the
high rise buildings, which
have a mechanical
ventilation system. We
have conducted a review of
the mechanical ventilation
system in the high rise
tower buildings as part of
our work. The existing
mechanical ventilation
system in these buildings
has very little ability to
reduce temperatures. It
does not provide adequate
ventilation to all habitable
rooms in all of the units, in
my opinion,

1. Lacks foundation
(Evid. Code §§ 402

15. As part of my
assignment in this case, our

Plaintiff’s Response to
Objection:

systems.

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and
investigation of the subject matter to
provide the stated testimony and
opinions.

The subject matter of the testimony
is “sufficiently beyond common
experience that the opinion of an
expert would assist the trier of fact.”
(Evid. Code § 801(a).)

Expert witnesses are authorized by
statute to reasonably rely upon
hearsay and other inadmissible
matter, such as information of which
they don’t have personal knowledge,
to form their opinions. (Evid. Code
§ 801(b).)

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s

office under my direction — 405, 812 ~ 813 qualifications as an expert and
has evaluated the cause of investigation of the subject matter to
the overheating problem at provide the stated testimony and
the Beacon Project. The opinions.
overheating problem, in my
opinion, is caused by a The subject matter of the testimony
combination of factors. is “sufficiently beyond common
Some of these factors are experience that the opinion of an
mentioned in this expert would assist the trier of fact.”
Declaration. (Evid. Code § 801(a).)
Expert witnesses are authorized by
statute to reasonably rely upon
hearsay and other inadmissible
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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
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Material Objected to:

16. A factor contributing to
the overheating problem is
large walls of glazing—in
many cases, from floor to
ceiling—in units which get
a large amount of sun
exposure because of their
compass orientation.

17. Another factor
contributing to the
overheating problem is that
the materials from which
the buildings are
constructed have significant
thermal mass, which, in
turn, causes significant
“thermal memory.” This
limits the ability of the units
to cool down at night, so
that the cycle continues the
next day with no abatement.
The buildings are
constructed of poured-in-
place concrete, which is
what causes the thermal
mass and leads to the
thermal memory issue.

18. In addition, the original
window glazing at the
Beacon Project was clear
glass with no low-e coating.
The glazing chosen has a U

Grounds for
Objection:

1. Lacks foundation
(Evid. Code §§ 402
— 405, 812-813

1, Lacks foundation
(Evid. Code §§ 402
—405, 812 — 813

1. Lacks foundation
(Evid, Code §§ 402
— 405, 812 — 813).

2. Lack of personal

Plaintiff’s Response to
Objection:

matter, such as information of which
they don’t have personal knowledge,
to form their opinions. (Evid. Code
§ 801(b).)

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and
investigation of the subject matter to
provide the stated testimony and
opinions.

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and
investigation of the subject matter to
provide the stated testimony and
opinions.

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and
investigation of the subject matter to
provide the stated testimony and

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
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Material Objected to:

value and solar heat
coefficient that contribute
to the overheating problem.
The U value is the factor
that relates to the amount of
heat transfer into or out of a
building. The higher the U
value of glass, the more
heat that is transferred
through the glass. The
Solar Heat Gain Coefficient
(*SHGC”) is the more
important contributor to the
energy efficiency of the
glass. The lower the
SHGC, the lower the heat
build-up in the building.

As part of my work, I
reviewed information
indicating that the clear
glass was substituted for a
“low E” type glass as part
of the value engineering
during construction. No
effort was made to revise
the Title 24 calculations for
energy efficiency to reflect
the inferior windows, or to
include other elements of
design such as air
conditioning or increased
ventilation that would offset
the heat gain effects of the
inferior glass.

19. The overall
configuration of the Beacon
Project, including its
combination of the type and

Grounds for
Objection:

knowledge (Evid.
Code § 702(a)).

1. Lacks foundation
(Evid. Code §§ 402
~ 405, 812 - 813).

Plaintiff’s Response to
Objection:

opinions.

The subject matter of the testimony
is “sufficiently beyond common
experience that the opinion of an
expert would assist the trier of fact.”
(Evid. Code § 801{a).)

Expert witnesses are authorized by
statute to reasonably rely upon
hearsay and other inadmissible
matter, such as information of which
they don’t have personal knowledge,
to form their opinions. (Evid. Code

§ 801(b).)

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and
investigation of the subject matter to

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Material Objected to: Grounds for
Objection:
amount of glazing; the fact

that it is sound-impacted;

the inadequate ventilation,

and the thermal mass,

overwhelm any efforts to

solve the overheating

conditions through methods

such as shades and ceiling

fans, in my opinion.

1. Lacks
foundation; other
properties must be
substantially
similar. (Evid.
Code §§ 402 — 405,
812 - 813).

20. As part of my work on
this case, | have reviewed
units in which solutions
such as shades, ceiling fans,
and opening of windows
(sometimes in spite of the
associated acoustic
problems) have actually
been tried. I have found
that such methods, at the
Beacon Project, are
inadequate to reduce
interior temperatures to an
acceptable level. In other
buildings in the City of San
Francisco, adequate
ventilation and cooling in
un-air conditioned
buildings can be achieved
by methods such as shades,
ceiling fans, and opening of
windows. This is not the

Plaintiff’s Response to
Objection:

provide the stated testimony and
opinions.

The subject matter of the testimony
is “sufficiently beyond common
experience that the opinion of an
expert would assist the trier of fact.”
(Evid. Code § 801 {a).)

Expert witnesses are authorized by
statute to reasonably rely upon
hearsay and other inadmissible
matter, such as information of which
they don’t have personal knowledge,
to form their opinions. (Evid. Code
§ 801(b).)

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and
investigation of the subject matter to
provide the stated testimony and
opinions.

The subject matter of the testimony
is “sufficiently beyond common
experience that the opinion of an
expert would assist the trier of fact.”
(Evid. Code § 801(a).)

The proffered testimony does not
provide any opinion on the other
properties.

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
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Material Objected to: Grounds for
Objection:
case with the Beacon

project, due to the

combination of design and

construction issues

discussed above, in my

opinion.

1. Lacks foundation
(Evid. Code §§ 402
~ 405, 812 ~ 813).

22. My observations of
units in which interior
shades are installed indicate
that such shades are
inadequate to prevent
overheating, because heat
builds up in the glass itself
and in the air between the
shade and the glass.

1. Lacks foundation
(Evid. Code §§ 402
—405, 812 — 813).

23. As part of my work
in this case, | have had the
opportunity to observe the
effect of a film that was
installed on the glass in a
large number of units by
one of the developers. The
film, in the manner in
which it was applied, was
not effective in alleviating
the overheating problem at
the Beacon Project. The
film was applied to the
interior surface of the
interior pane of the
windows. Thus, it fails to
prevent solar energy from
entering the building
envelope and overheating
the units. The glass
overheats and then radiates
the heat into the units.

Plaintiff’s Response to
Objection:

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and
investigation of the subject matter to
provide the stated testimony and
opinions.

The Lefler Decl. provides adequate
foundation in setting forth Lefler’s
qualifications as an expert and
investigation of the subject matter to
provide the stated testimony and
opinions.

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
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Material Objected to: Grounds for

Objection:

Also, glass breakage in
some units reportedly was
observed to be associated
with this application of the
film. This is an expected
result of the manner in
which the film was applied,
in my opinion.

B. Declaration of Michael Burgess
1. Lacks foundation

(Evid. Code $§ 402
—405, 812 — 813).

3. In my opinion, the
overheating problem
involves the design of the
entire envelope and
ventilation system of the
building. The overall
construction has essentially
established a greenhouse
effect. The major causes of
the greenhouse effect
include the substitution of
clear glazing in place of the
low emissivity (i.e. low E)
glazing that the Title 24
consultant assumed would
be used when he prepared
the Title 24 calculations
submitted to the
Department of Building
Inspection; the lack of
external shading (overhangs
or awnings) at the windows,
the amount of glazing
percentage per square foot
of occupied space; and the
excessive external noise Downer vy, Bramet
sources (i.e. the train station (1984) 152

and the SF Giants ball park) Cal. App.3d 837,

4. Opinion not
based on materials
that reasonably may
be relied upon in
forming an opinion
on the subject
matter. (Evid. Code
$§ 801(b), 801-803

5. Legal
conclusions and the
manner in which
the law should
apply to particular
facts are not subject
to expert opinion.
(FRI Opportunity
Loans I, LLC v.
Cooper (2007), 154
Cal_App.4" 525,
$23, fn. 3 WRI’);

Plaintiff’s Response to
Objection:

The Burgess Decl. provides
adequate foundation in setting forth
Burgess’ qualifications as an expert
and investigation of the subject
matter to provide the stated
testimony and opinions.

Expert witnesses are authorized by
statute to reasonably rely upon
hearsay and other inadmissible
matter, such as information of which
they don’t have personal knowledge,
to form their opinions. (Evid. Code

§ 801(b).)

An opinion that is otherwise
admissible is not objectionable
because it embraces the ultimate
issue to be decided by the trier of
fact. (Evid. Code § 805.)

Unlike the disputed expert testimony
in WRI (that a loan was a “shared
appreciation loan” and thus
completely exempt from usury) and
Downer (involving the “calling of
lawyers as ‘expert witnesses’ to give
opinions as to the application of the

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Material Objected to: Grounds for

Objection:

thus, causing the inability
of the owners to open
windows to naturally
ventilate and cool the units.
I must note two items
regarding the windows.
First, when the owners do
open the windows, they can
only be opened a maximum
of four-inches. Second, the
building code restricts
architects and design
professionals from
designing buildings that
experience exterior sound
source levels measured in.
the interior of the units to
less than 45 dba. The
measured exterior sound
levels are at approximately
70 dba at the skin of the
building. | have reviewed
the acoustic consultant’s
report in the course of my
investigation.

841 (‘Downer”’).)

6. Hearsay (Evid.
Cade § 1200).

1. Lacks foundation
(Evid. Code $§ 402
— 405, 812 — 813).

4. | understand that the
developer placed window
film on the interior of the
glazing of over half of the
units in 2005. In my
opinion, the film, in the
manner in which it was
applied, did not resolve or
even mitigate the
overheating problem. The
film created an additional
problem whereby the
warranty of the window

4. Opinion not
based on materials
that reasonably may
be relied upon in
forming an opinion
on the subject
matter. (Evid. Code
$§ 801(b), 801-803

Plaintiff’s Response to
Objection:

law to particular facts” p.842) the
Burgess Decl. does not state “a legal
conclusion” at issue in the matter but
merely correlates the data he
collected to certain basic building
standards.

The Burgess Decl. provides
adequate foundation in setting forth
Burgess’ qualifications as an expert
and investigation of the subject
matter to provide the stated
testimony and opinions.

Expert witnesses are authorized by
statute to reasonably rely upon
hearsay and other inadmissible
matter, such as information of which
they don’t have personal knowledge,
to form their opinions. (Evid. Code

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PLAINTIFF’S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF RENEWED
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Material Objected to:

manufacturer was voided
by placing the film on the
inside of the window. In
some cases, the placement
of the film also has
reportedly caused the
glazing to crack, which is a
result | would expect based
on the manner in which the
film was placed on the
interior surface of the
window.

5. In my opinion, methods
which have thus far been
tested have failed to
alleviate the overheating
problem at the Beacon
Project. These methods
utilized systems that altered
only the interiors of the
units. These included
removing film installed by
the developer in 2005;
cleaning the Z ducts and
replacing the insect screens
with bird screens; installing
interior window solar
shades; installing ceiling
fans and, in one case,
installing a transfer grill.
These methods have been
ineffective because none of
them increased or altered

Grounds for
Objection:

5. Interpretation of
warranties is a legal
question not
properly subject to
expert opinion.
Downer v. Bramet
(1984) 152

Cal. App.3d 837,
841 (“Downer”).)

6. Hearsay (Evid.
Code § 1200).

1. Lacks foundation
(Evid. Code $§ 402
— 405, 812 — 813).

3. Legal
conclusions and the
manner in which
the law should
apply to particular
facts are not subject
to expert opinion.
OV¥RI Opportunity
Loans H, LLC y.
Cooper (2007), 154
Cal.App.4” 525,
523, fn. 3 (“SWRI”);
Downer v. Bramet
(1984) 152

Cal. App.3d 837,
841 (“Downer ”).)

Plaintiff’s Response to
Objection:

§ 801(b).)

An opinion that is otherwise
admissible is not objectionable
because it embraces the ultimate
issue to be decided by the trier of
fact. (Evid. Code § 805.)

Unlike the disputed expert testimony
in Downer (involving the “calling of
lawyers as ‘expert witnesses’ to give
opinions as to the application of the
law to particular facts” p.842) the
Burgess Decl. does not state “a legal
conclusion” at issue in the matter but
merely states his opinion as to the
warranty provision.

The Burgess Decl. provides
adequate foundation in setting forth
Burgess’ qualifications as an expert
and investigation of the subject
matter to provide the stated
testimony and opinions.

Expert witnesses are authorized by
statute to reasonably rely upon
hearsay and other inadmissible
matter, such as information of which
they don’t have personal knowledge,
to form their opinions. (Evid. Code
§ 801(b).)

The statements do not involve any
legal conclusions.

An opinion that is otherwise
admissible is not objectionable
because it embraces the ultimate

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Material Objected to: Grounds for Plaintiff’s Response to

Objection: Objection:
the air exchange rate or issue to be decided by the trier of
reduced the cooling load fact. (Evid. Code § 805.)
being experienced on the
interior of the unit. The Unlike the disputed expert testimony
solar shades dropped the in WRI (that a loan was a “shared
temperature differential appreciation loan” and thus
slightly (about 3 degrees) completely exempt from usury) and
across the windows but Downer (involving the “calling of
trapped heat between the lawyers as ‘expert witnesses’ to give
window and the shade opinions as to the application of the
which caused heat to spill law to particular facts” p.842) the
out into the interior, past the Burgess Decl. does not state “a legal
shade. The ceiling fan conclusion” at issue in the matter but
simply mixed the hot air states his opinion regarding the
creating some air velocity effectiveness certain efforts to
but does not relieve the remediate the construction defects at
space of the latent load issue in this action.

(caused by moisture) nor
does it effectively reduce
the sensible load (the
perceived degree of heat).
Thus, “opening the
windows,” “installing
ceiling fans,” and
“installing shades or

blinds,” either individually

or in combination, are not

adequate solutions for the

overheating problem.

7. As a result of this i. Lacks foundation The Burgess Decl. provides
comprehensive study, we (Evid. Code §§ 402 adequate foundation in setting forth
are recommending that air- —405,812-—813). Burgess’ qualifications as an expert
cooled water chillers be and investigation of the subject
installed on the roofs of the matter to provide the stated.
buildings and existing testimony and opinions.

chases be used to
distributed chilled water
piping system to fan coils

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Material Objected to: Grounds for Plaintiff’s Response to
Objection: Objection:

that will be used to cool the
units. This repair method
involves many common
areas of the buildings. This
repair method will result in
the interior environment
temperatures in the units
being lowered to an
industry standard
acceptable level, and will
defeat the solar heat gain
experienced

C. Declaration of Michael Alfaro (August 24, 2012)

7. Attached as Exhibit Dto 1. Lacks foundation The Alfaro Decl. provides adequate

this Declaration is a true (Evid. Code §§ 402 foundation in setting forth Alfaro’s
and correct copy of —405, 812-813). personal knowledge of the matters
responses that the set forth in this statement and
Association received to a 2. Lack of personal adequately authenticating the
questionnaire circulated by knowledge (Evid. questionnaires received by the

the Association to its Code § 702(a)). Association and its professional
members in 2006. The management firm, Titan
questionnaire did not ask 3. Hearsay (Evid. Management Group, of which

any questions about Code § 1200). Alfaro is the president.

overheating of unit

interiors, but numerous 4. Improper The questionnaires attached as
responses mentioned the testimony on the Exhibit D were made in the regular
problem as shown in contents of a course of a business, at or near the
Exhibit D. Also included in writing (Evid. Code _ time of the act, condition, Alfaro is a
Exhibit D is a summary § 1523). qualified witness who testified to
sheet conveniently their identity and mode preparation;

summarizing the responses 5. Probative value and the sources of information and
bearing on overheating of | outweighed by risk method and time of preparation are

units that are included in of unfair prejudice, such as to indicate its

Exhibit D. confusion of issue. trustworthiness and thus constitute
business records meeting the
requirements of Evid. Code §§ 1271
and are exempt from the hearsay

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Material Objected to: Grounds for Plaintiff’s Response to
Objection: Objection:
rule.

The testimony does not involve the
contents of the writing but
authenticates the actual writing as
evidence.

Alfaro is entitled to summarize the
voluminous records. (Evid. Code §
1521(b), 1523(d).)

The proffered evidence is directly
relevant to when, how and to whom
residents began to voice their
concerns about the overheating of
the subject condominiums There is
no prejudice in admitting this
evidence in this pre-trial motion,
which will not be presented to a jury
and there is no risk of confusion of
issues.

D. Declaration of Michael Alfaro (February 5, 2013)
4. Between 2006 and 1. Lacks foundation The Alfaro Renewal Decl. provides

September 2009 the exterior (Evid. Code §§ 402 adequate foundation in setting forth
window gallin 18 unitsof — 405, 812-813). Alfaro’s personal knowledge of the

the Beacon Project need to matters set forth in this statement.
be replaced due to cracking 2. Lack of personal

of the glass. The knowledge (Evid. The Declarant, as the President of
Association repaired the Code § 702(a)). the property management firm hired
windows in each of these by the Association has personal
units at no cost to the 3. Probative value — knowledge of the repairs to the
individual owners of these — outweighed by risk building.

units. of unfair prejudice,

confusion of issue The proffered evidence is directly

(Evid. Code § 352.) relevant to whether or not the
owners of the individual units at the
Beacon Project are obligated to or

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Material Objected to: Grounds for
Objection:

5. As the property manager 1. Lacks

for the Beacon Project Titan foundation (Evid.
maintains a list of all ofthe Code §§ 402 ~ 405,
names of the members of 812-813).

the Association and their

contact information, 2. Lack of personal
including the last known knowledge (Evid.
address of each member, Code § 702(a)).
and for most members, their

e-mail address. Titan 3. Hearsay (Evid.
updates this database when Code § 1200).
members of the Association

move or change their 4. Improper

contact information and testimony on the
when new members join the contents of a
Association, Titan writing (Evid. Code
frequently utilizes this § 1523).

contact information to send

official notices to the 5. Probative value

members of the Association. outweighed by risk
of unfair prejudice,
confusion of issue.

Plaintiff’s Response to
Objection:

even able to, repair the windows in
their units. There is no prejudice in
admitting this evidence in this pre-
trial motion, which will not be
presented to a jury and there is no
risk of confusion of issues.

The Alfaro Renewal Decl. provides
adequate foundation in setting forth
Alfaro’s personal knowledge of the
matters set forth in this statement.

The Declarant, as the President of
the property management firm hired
by the Association has personal
knowledge of the nature of the
records maintained by the
Association of its members contact
information.

There is no out of court declaration
contained in the statement objected
to and it is non-hearsay.

The statement does not testify as to
the contents of any writings, just to
the Association’s methods for
maintaining the contact information
of its members.

The proffered evidence is directly
relevant the mechanics of any notice
that the Court may order in
connection with certification of the
class. There is no prejudice in
admitting this evidence in this pre-
trial motion, which will not be
presented to a jury and there is no
risk of confusion of issues.

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Material Objected to:

6. Approximately sixty
percent of the members of
the Association have
provided their written
consent to the service of
official notices from the
Association via e-mail.
When sending official
notices to the members of
the Association who have
consented to this manner of
service it sends notice via
first class mail to the forty
percent of the members who
have not consented to
service via e-mail. This
service typically takes one
to two business days. If the
Court request that the
Association provide notice
of this lawsuit to its
members, Titan can and will
promptly do so by delivery
via first class mail to their
last know address and via ¢-
mail.

Grounds for
Objection:

1. Lacks foundation
(Evid. Code §§ 402
— 405, 812 — 813).

2. Lack of personal
knowledge (Evid.
Code § 702(a)).

3. Hearsay (Evid.
Code § 1200).

4. Improper
testimony on the
contents of a
writing (Evid. Code
§ 1523).

5. Probative value

outweighed by risk
of unfair prejudice,
confusion of issue.

E. Declaration of Angela Orozco

3. Ihave conducted a

1. Lacks foundation

Plaintiff’s Response to
Objection:

The Alfaro Renewal Decl. provides
adequate foundation in setting forth
Alfaro’s personal knowledge of the
matters set forth in this statement.

The Declarant, as the President of
the property management firm hired
by the Association has personal
knowledge of the nature of the
records maintained by the
Association of its members contact
information and how notices are sent
to them.

There is no out of court declaration
contained in the statement objected
to and it is non-hearsay.

The statement does not testify as to
the contents of any writings, just to
the Association’s methods for
maintaining the contact information
of its members.

The proffered evidence is directly
relevant to the procedure relating to
any notice that the Court may order
in connection with certification of
the class. There is no prejudice in
admitting this evidence in this pre-
trial motion, which will not be
presented to a jury and there is no
risk of confusion of issues.

The Orozco Renewal Decl. provides

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Material Objected to: Grounds for
Objection:

detailed review of the (Evid. Code §§ 402

records produced by — 405, 812 — 813).

defendant Mission Place,

LLC (“Mission Place”) in 2. Lack of personal
discovery regarding the knowledge (Evid.
persons to whom Mission Code § 702(a)).
Place sold residential Units

at the Beacon 3. Hearsay (Evid.
Condominium Project Code § 1200).
located at 250 and 260 King

Street, San Francisco, 4, Probative value
California (“the Beacon outweighed by risk
Project”). As a result of of unfair prejudice,
that review, I have been confusion of issue

able to identify the original
purchasers, from Mission
Place, of 583 of the 595
total Units at the Beacon
Project. The Units whose
original purchasers [ have
thus far been unable to
identify from the Mission
Place records produced are:

402 806 1512
520 84 1612
624 852 1614
714 914 1618

4. The Association 1. Lacks foundation
maintains an updated (Evid. Code §§ 402
database which lists the — 405, 812 — 813).

owners of each Unit at the

Beacon Project. Using that 2. Lack of personal
database, |have compared —_ knowledge (Evid.
the current owners of each Code § 702(a)).
Unit with the original

purchasers of the Units from 3. Improper
Mission Place. Asaresult testimony on the

Plaintiff’s Response to
Objection:

adequate foundation in setting forth
Orozco’s personal knowledge of the
matters set forth in this statement.

The statements as to the content of
the records produced by Mission
Place is not inadmissible because the
statement summarizes voluminous
records that cannot be examined
without great loss of time and the
evidence sought from them is only
the general result of the whole. (Ev.
Code § 1523.)

The records are business records
and/or official records, recognized
exceptions to the hearsay rule ( Ev.
Code §§ 1