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

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Dec-31-2012 2:35 pm

Case Number: CGC-08-478453
Filing Date: Dec-31-2012 2:34
Filed by: FELICIA GREEN
Juke Box: 001 {mage 03890568

ORDER

BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD
AND KING LLC et al
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001003890568
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Instructions: |
Please place this sheet on top of the document to be scanned.
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LAW OFFICES
HAIGHT, BROWN &
BONESTEEL. LLP.
San Francisco

San Francisco County Superior Court
Charles A. Hansen (Bar No. 76679)
Peter J. Lautenberg (Bar No.1 P2919) up DEC 3 1 2m? woe
WENDEL, ROSEN, BLACK & pee
1111 Broadway, 24th Floor CLERK OF THE,COUR os:20P
Oakland, California 94607-4036 BY: daha J.
Telephone: (510) 834-6600 Deputy Cierk

Facsimile: (510) 834-1928

Steven M. Cvitanovic (Bar No. 168031)
Zachary W. Shine (Bar No. 271522)
HAIGHT BROWN & BONESTEEL LLP
71 Stevenson Street, 20th Floor

San Francisco, California 94105-2981
Telephone: (415) 546-7500

Facsimile: (415) 546-7505

Attorneys for Defendants and Cross-Complainants Mission Place LLC; Mission Place
Mezz Holding LLC; Mission Place Mezzanine LLC; Mission Place Partners LLC;
Centurion Real Estate Investors IV, LLC; and Centurion Real Estate Partners, LLC (sued
in its own name and erroneously sued as Centurion Partners LLC)

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY ) Case No. CGC 08-478453

ASSOCIATION,

|] ORDER ON MISSION

Plaintiff, LACE AND AFFILIATES’ FINAL
OBJECTIONS TO EVIDENCE
v. (SUPERSEDING ANY AND ALL

PREVIOUSLY FILED OBJECTIONS
TO EVIDENCE) PROFFERED BY
HKS AND WEBCOR

Date: December 14, 2012

CATELLUS THIRD AND KING LLC;
Defendants.

Time: 9:30 a.m.
Dept.: 304
Judge: Hon. Richard A. Kramer

AND RELATED CROSS-ACTION

eee

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN:

Defendants and Cross-complainants Mission Place LLC; Mission Place Mezz
Holding LLC; Mission Place Mezzanine LLC, Mission Place Partners LLC; Centurion
Real Estate Investors IV, LLC; and Centurion Real Estate Partners, LLC (sued in its own
name and erroneously sued as Centurion Partners LLC) (hereinafter collectively “Mission

1

~{AISSNGESD} ORDER ON MISSION PLACE’S FINAL OBJECTIONS TO EVIDENCE (SUPERSEDING ANY AND.
ALL PREVIOUSLY FILED OBJECTIONS TO EVIDENCE) PROFFERED BY 1TKS AND WEBCOR

ZU29-0000032
4022072.Co mem UI DN

Place”) hereby submits its Final Objections to Evidence (superseding any and all
previously filed objections to evidence) proffered by Webcor Construction, Inc.
(“Webcor”) and HKS, Inc. (“HKS”) in opposition to Mission Places Motion for Summary
Adjudication. These objections are in place of any and all Objections to Evidence

| previously filed by Mission Place with regard to this motion.

1 Objections to the Declaration of Jack D. Price submitted by EIKS in Opposition to
Motion for Summary Adjudication by Mission Place.

Material Objected to

Grounds for Objection

Ruling on Objection

No. 1. Price Decl., $4, lines 5-
8: “In that regard, I would note
that the Architectural
Agreement was not with TKT,
and that none of the HKS

entities entered into a contract
to provide services in
connection with this project
with it. We contracted with
Catellus Urban Development
Group, LLC ("CUDG"), dealt
with it, submitted our invoices
10 it, and were paid by that

entity.”

Oral testimony is
inadmissible to prove the
content of a writing. Evid.

Code § 1523.

Sustained:

Overruled: ™<

No. 2. Price Decl. 94, page 3,
lines 9-12: “HKS has never
consented to any assignment of

CUDG's rights under the

Architectural Agreement, nor

Oral testimony is
inadmissible to prove the
content of a writing. Evid.

Code § 1523.

Sustained:

Overruled: ?

2

[PROPOSED] ORDER ON MISSION PLACE'S FINAL OBJECTIONS TO EVIDENCE (SUPERSEDING ANY AND
40200721 ALL PREVIOUSLY FILED OBJECTIONS TO EVIDENCE) PROFFERED BY HKS AND WEBCOR

ZU29-00000322]

LAW OFFICES:

HAIGHT, BROWN &

BONESTEEL, LLP.
San Francisco

Material Objected to Grounds for Objection Ruling on Objection

is it aware of any assignment
of the Architectural Agreement
or rights thereunder by CUDG
and to anyone else.”
No. 3. Price Decl., (5, page 3, | Oral testimony is Sustained:
lines 17-20: “To the best of inadmissible to prove the .
my knowledge and belief, content of a writing. Evid. | Overruled: %K |
since TKI was not a party to Code § 1523. Mr. Price’s
the Architectural Agreement it | statement "[to] the best of
had no rights to assign and my knowledge" is
indeed, I would note that my _| insufficient declaration
subsequent review of the testimony because it implies
purported assignment shows it | that the allegations are based
being described as ""AS IS" on information and belief
and without warranty".” rather than personal

knowledge. Bowden v.

Robinson (1977) 67 Cal.

App. 3d 705, 719.
No. 4, Price Declaration 5, Objection, improper parol Sustained:
page 3, lines 20-22: “In any evidence. The contract, at
event, when the Architectural | sections 12.6 and 12.7 Overruled: %
Agreement was executed, HKS | (MSA 0084), contain
did not intend to assign to integration and amendment
MISSION any rights that clauses. Mr. Price's attempt
CUDG had in the Architectural | to change the meaning of the
Agreement and was not asked | contract and express his

3
“n329-0000032 [RR@POSED] ORDER ON MISSION PLACE’S FINAL OBJECTIONS TO EVIDENCE (SUPERSEDING ANY AND

4072072.1

ALL PREVIOUSLY FILED OBJECTIONS TO EVIDENCE) PROFFERED BY HKS AND WEBCOR1 Material Objected to Grounds for Objection Ruling on Objection |

2 1\ to do so.” intent are improper.

3 Sunniland Fruit, Inc. v.

4 Verni (1991) 233 Cal. App.
5 3d 892, 898.

| No. 5. Price Declaration 45. Objection, improper parol Sustained:

pages 3-4, lines 28-7: “It evidence. The contract, at
Overruled: x

6

7

8 || was not my intent to agree to, | sections 12.6 and 12.7

9} nor did I understand this (MSA 0084), contain

10 |! language to encompass, any integration and amendment
11 |} obligation on the part of HKS | clauses. Mr. Price's attempt
12}: to owe obligations under the to change the meaning of the

13 |} Architectural Agreement to contract and express his

14 }]| doth the entity which was intent are improper.

15] purportedly assigning rights, | Sunniland Fruit, Inc. v.

16} and the entity which was Verni (1991) 233 Cal. App.
17 || purportedly receiving them, or | 3d 892, 898.

18 | was that my understanding of | Mr. Price's statement "[to]
19 || what an "assignment" was or _| the best of my knowledge”
20 }!| is. Indeed, it is and was my is insufficient declaration

21 || understanding of and intent in | testimony because it implies
22 || executing the document, and _| that the allegations are based
23 {I belief that any assignment was | on information and belief

24 || as to the matters specifically _| rather than personal

25 ||| set forth in the Consent form, | knowledge. Bowden v.
26 || and did not include any other | Robinson (1977) 67 Cal.

27 |! rights under the contract, App. 3d 705, 719.
28
LAW OFFICES. 4
HAIGHT, BROWN & _, BROPSSAB] ORDER ON MISSION PLACE'S FINAL OBJECTIONS 70 EVIDENCE (SUPERSEDING ANY AND
BONESTEEL LLP et ALL PREVIOUSLY FILED OBJECTIONS TO EVIDENCE) PROFFERED BY HKS AND WEBCOR] Material Objected to Grounds for Objection Ruling on Objection
2 || including indemnity
3 || obligations.”
4]] No. 6. Price Decl. §6, page 4, | Under the Crawford case, Sustained: x
5 |) lines 10-20: “Based upon my | this declaration testimony is
6 j review of the allegations and _| irrelevant to the issue of Overruled:
7 | damages claimed by the HOA, | whether a defense is owed.
8 | as well as my knowledge of Crawford holds that the
9 ll work and review of the same, j issue of ultimate liability is

10 }] it is my considered, informed _ | irrelevant to the duty to

11 |] and professional opinion that | defend. Further, the subject

12 ||| the issues identified by opinions lack proper

13 || plaintiffs and for which suit foundation in that Mr. Price

14 |] has been brought did were not | fails to particularly specify

15 |} occasioned by misconduct on _| the basis for the opinions so

16 ]} the part of HKS, by any failure | that an analysis can be

17 }| to comply with any provision | undertaken whether the

184] of the Architectural Agreement | foundational information is

19 || or by negligent acts, errors or | reliable or even admissible.

20 | omissions on the part of any (Evid. Code § 801(b)).

21 || HKS entity.” Additionally, an expert

22 declaration stating that the

23 | defendant acted "within the

24 standard of care,” without

25 | factual explanation how this

26 conclusion was reached is

27 insufficient. Johnson v.

28

‘LAW OFFICES

HAIGHT, BROWN &
BONESTEEL, LLP.
San Francisco

ZU29-0000032
40220721

5

Peaen@eeD) ORDER ON MISSION PLACE’S FINAL OBJECTIONS TO EVIDENCE (SUPERSEDING ANY AND
ALL PREVIOUSLY FILED OBJECTIONS TO EVIDENCF) PROFFERED BY HKS AND WEBCORMaterial Objected to

Grounds for Objection

Ruling on Objection

LAW OFFICES:
HAIGHT, BROWN &
BONESTEEL, LLP.

‘Sun Francisco

Superior Court(2006) 143
Cal. App. 4th 297, 307.

See, also, Kelly v. Trunk
(1998) 66 Cal. App. 4th 519,
523-524, for exclusion of
expert opinion based on
failure to disclose matters
relied upon in forming the
opinion and failing to
explain reasons for

conclusion.

Objections to the Declaration of John C. Bowles submitted in Opposition to the
Motion for Summary Adjudication by Mission Place.

Material Objected to

Grounds for Objection

Ruling on Objection

No. 7. Bowles Declaration 48,
page 3, lines 4-8”: “The
Consent and Assignment
which I signed clearly
provided that WEBCOR
consented only to the
assignment of al} "guaranties
and warranties relating to the
Project." See sub-point xii of
the Assignment. These are the
only items that WEBCOR

assigned to Mission Place

Oral testimony is
inadmissible to prove the
content of a writing. Evid.

Code § 1523.

Sustained:

Overruled: x

6

[RR@RSSRET ORDER ON MISSION PLACE’S FINAL OBIECTIONS TO EVIDENCE (SUPERSEDING ANY AND

23029-9000032
4022077 1

ALL PREVIOUSLY FILED OBJECTIONS TO EVIDENCE) PROFFERED BY HKS AND WEBCORMaterial Objected to

Grounds for Objection

Ruling on Objection

LAW OFFICES
HAIGHT, BROWN &

San Francisco

and/or consented that Third
and King Investors could

assign to Mission Place.”

No. 8. Bowles Decl., 9. p. 3,
lines 9-14: “WEBCOR did not
consent to assign to Mission
Place any portion of the
Indemnification obligations
which are set forth in Article
XI of the General Conditions
of the August 24, 2011
Construction Agreement
between Webcor and Third
and King Investors. These
indemnification obligations are
owed only to Third & King
Investors, LLC as the
"Company" as defined in
WEBCOR's contract with
Third and King Investors, and
not to any subsequent

purchaser of the Project.”

Oral testimony is
inadmissible to prove the
content of a writing. Evid.

Code § 1523.

Sustained:

Overruled: x

No. 9. Bowles Decl., 410, p.
3, lines 15-18: “In signing the
Consent and Agreement on

behalf of WEBCOR I

Improper parol evidence.
The contract, at sections 8.1
(MSA 0017), contains an

integration clause. Mr.

Sustained:

Overruled: XX

7

[PR@RSSED] ORDER ON MISSION PLACE S FINAL OBJECTIONS TO EVIDENCE (SUPERSEDING ANY AND

7029.9000032
4072072.1

ALL PREVIOUSLY FILED OBJECTIONS TO EVIDENCE) PROFFERED BY HKS AND WEBCORMaterial Objected to

Grounds for Objection

Ruling on Objection

understood that Third & King
Investors LLC was retaining
all rights and benefits under
the Contract that WEBCOR
signed with Third & King
Investors, LLC, except for the
guarantees and warranties that
Webcor consented could be

assigned to Mission Place.

Bowles attempt to change
the meaning of the contract
and express his
understanding is improper.
Sunniland Fruit, Ine. v.
Verni (1991) 233 Cal. App.
3d 892, 898.

Objections to the Supplemental Declaration of John C. Bowles submitted in
Opposition to the Supplemental Motion for Summary Adjudication by Mission Place.

Material Objected to

Grounds for Objection

Ruling on Objection

No. 10. Bowles Declaration

12, page 2, lines 3-8: “I

believed, when I signed the
Consent and Agreement on
behalf of WEBCOR that
MISSION PLACE and THIRD
& KING INVESTORS, LLC

I| (“TKI”) understood that

WEBCOR was only assigning
the guarantees and warranties
to MISSION PLACE, and not
the indemnification
obligations, since the only

reference in the Consent and

(1) Lack of personal
knowledge. (Evid. Code, §
702(a)). Mr. Bowles, as the
representative of Webcor,
cannot testify to what he
believed Mission Place and
Third and King understood.
(2) Irrelevant (Evid. Code,
§§ 210, 350-351). Mr.
Bowles’ personal belief
regarding the intent behind
the assignment is irrelevant
as Webcor was not a party

to the assignment. The

Sustained: %

Overruled:

LAW OFFICES
HAIGHT, BROWN &
BONESTEEL. LLP.

San Francisco

8

[PROPOSED] ORDER ON MISSION PLACE’S FINAL OBJECTIONS TO EVIDENCE (SUPERSEDING ANY AND

7529-0000032
4022072.1

ALL PREVIOUSLY FILED OBJECTIONS TO EVIDENCE) PROFFERED BY HKS AND WEBCORLAW OFFICES.

‘HAIGHT, BROWN &
BONESTEEL, LLP.
San Francisco

Material Objected to

Grounds for Objection

Ruling on Objection

Agreement to what specific
rights were actually being
assigned stated that WEBCOR
Was assigning guaranties and

warranties.”

mutual intent of the assignor
and assignee is important.
(3) Oral testimony is
inadmissible to prove the
content of a writing. (Evid.
Code § 1523).

(4) Inadmissible parol
evidence. (Code. Civ. Proc.
§ 1856); Sunniland Fruit,
Inc. v, Verni (1991) 233 Cal.
App. 3d 892, 898.

(5) Misstates the evidence.
Mr. Bowles incorrectly
testifies “WEBCOR was
only assigning the
guarantees and warranties.”
However the party assigning
the contract was Third and
King, not Webcor. Webcor
is simply the third party
obligor whose interest was

assigned by Third and King.

No. 11. Bowles Decl., { 6, p.
2, lines 15-16: “WEBCOR

was not paid any additional)

compensation or any type of

Impermissible legai
conclusion. (Evid. Code

§ 702); In re Marriage of
Heggie (2002) 99 Cal. App.

Sustained:

Overruled: ) \

9

[BROPOSE} ORDER ON MISSION PLACE'S FINAL OBJECTIONS TO EVIDENCE (SUPERSEDING ANY AND

Zv29-0000032
8022072.1

ALL PREVIOUSLY FILED OBJECTIONS TO EVIDENCE) PROFFERED BY HKS AND WEBCORLAW OFFICES

BAIGHT, BROWN &
BONESTEEL, LLP.
San Francisco

Material Objected to Grounds for Objection Ruling on Objection
consideration in exchange for | 4th 28, 30 n.3. Itis
executing the Consent and improper to include legal
Agreement.” argument in a declaration.
Whether or not Webcor was
paid “consideration” is a
legal conclusion as
“consideration” is a legal
term of art.
Dated: wheel eS Maa
HON. RICHARD A. KRAMER
10
[>e@Ree} ORDER ON MISSION PLACE’S FINAL OBJECTIONS TO EVIDENCE (SUPERSEDING ANY AND.
20328-0000032, ALL PREVIOUSLY FILED OBJECTIONS TO EVIDENCE) PROFFERED BY HKS AND WEBCOR

4022072.1