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

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                                KATZOVF & RIGGS LLP

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ANN RANKIN (SBN 83690)
TERRY WILKENS (SBN 118469)

Law Offices of Ann Rankin ELECTRONICALLY
3911 Harrison Street FILED
Oakland, CA 94611 Superior Court of California,
Tel.: 6 10) 653-8886 County of San Francisco
Fax: (510) 653-8889 DEC 19 2012

Clerk of the Court
BY: ANNIE PASCUAL
KENNETH S. KATZOFF (SBN 103490) Deputy Clerk

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

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

AND RELATED CROSS-ACTIONS. Judge: Hon. Richard A. Kramer

Trial Date: February 4, 2013

BEACON RESIDENTIAL ) Case No. CGC 08-478453
COMMUNITY ASSOCIATION, )
) PLAINTIFF’S MEMORANDUM OF
Plaintiff, ) POINTS AND AUTHORITIES IN
) OPPOSITION TO DEFENDANTS
vs. ) AND CROSS-COMPLAINANTS’
) MOTION TO CONTINUE TRIAL
CATELLUS THIRD AND KING LLC, ) OR, IN THE ALTERNATIVE,
etal., ) VACATE TRIAL DATE
)
Defendants. ) Date: December 21, 2012
) Time: 9:00 a.m.
) Dept.: 304
)
)

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS AND CROSS-
COMPLAINANTS’ MOTION TO CONTINUE TRIAL OR, IN THE ALTERNATIVE, VACATE TRIAL DATEKATZOVF & RIGGS LLP

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Plaintiff Beacon Residential Community Association (“Plaintiff”) hereby
opposes the motion of defendant and cross-defendant Webcor Builders, Inc., and 12
subcontractor defendants and cross-defendants (collectively “Moving Defendants”)
represented by the law firm of Seller Hazard Manning Ficenec & Lucia
(“Subcontractors’ Counsel”), to vacate or continue the trial date as follows:

INTRODUCTION AND PROCEDURAL HISTORY

The Court should deny this second motion of Moving Defendants to continue or
vacate the February 4, 2013 trial date because the motion fails to make the showing
required by law and any continuance would unduly prejudice Plaintiff. The Court
should reject the claim of Moving Defendants that the trial should be continued because
of a two week delay in the deposition schedule. Any delay in discovery occurred as a
result of defense counsel’s unwarranted refusal to produce their experts for scheduled
depositions on the purported ground that the bankruptcy of one subcontractor, F.
Rodgers Corporation (the ““Debtor”), stayed all discovery as to all other 21 parties.

As early as November 9, 2012, Moving Defendants were aware of the Debtor’s
filing of bankruptcy on April 30, 2012. However, they waited until the very last minute
(5:29 p.m., on November 19, 2012, the Monday of the shortened Thanksgiving week) to
inform Plaintiff of the filing, and refused to attend the depositions of other defense
experts already confirmed in the following week of November 26, 2012. Without any
legal authority, Defendants claimed that the automatic stay applied to all depositions in
the action, even though the testimony of these experts did not relate to any claims

against the Debtor. Furthermore, defense counsel unilaterally canceled these

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS AND CROSS-
COMPLAINANTS’ MOTION TO CONTINUE TRIAL OR, IN THE ALTERNATIVE, VACATE TRIAL DATEKATZOVF & RIGGS LLP

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depositions despite having attended and fully participated in 6 days of other expert
depositions on November 9, 12, 14, 15, 16 and 19, 2012, and the first day of mediation
on November 27, 2012, with full knowledge of the bankruptcy filing. (Declaration of
Sung E. Shim in Opposition to Defendants and Cross-Defendants’ Motion to Continue
Trial or, in the Alternative, Vacate the Trial Date (“Shim Decl.”), 3.)

Plaintiff's counsel provided apposite authorities’ stating that the automatic stay
applies to only the Debtor, not to any non-debtor joint tortfeasors in this action so the
depositions must proceed. Defendants still refused to proceed with the depositions and
insisted on an order granting relief from stay knowing that there was very little time in
the Thanksgiving week to prepare and file the motion, and that the trustee’s counsel was
out of the office until November 26, 2012. (Shim Decl., § 4.)

Even though Plaintiff disputed Defendants’ contention, Plaintiff's counsel did
everything humanly possible to file the motion for relief from stay on November 21,
2012, along with an application for an order shortening time to hear the motion (“OST
Application”). On November 27, 2012, the bankruptcy court granted the OST and
scheduled the hearing on December 3, 2012. Plaintiffs counsel personally appeared at
the hearing in Sacramento and obtained the bankruptcy court’s order granting relief

from stay. However, by the time the depositions resumed on December 5, 2012, the

' The case law authorities included the following: Wedgeworth v. Fibrebeard Corp. (1983) 706
F.2d 541] (Sth Cir. 1983); Maritime Elec. Co, Inc. v. United Jersey Bank (1991) 959 F.2d 1194,
1105 Grd Cir. 1991); Williford v. Armstrong World Industries, Inc. 715 F. 2d 124 (4th Cir.
1993) (joint tortfeasors in an asbestos liability suit could not avail themselves of the automatic
stay provisions applicable to defendants who had filed for reorganization); US v. Dos Cabezas
Corp. 995 F.2d 1486 (9th Cir. 1993); In re Chugach Forest Products 23 F.3d 241 (9th Cir.
1994),

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS AND CROSS-
COMPLAINANTS’ MOTION TO CONTINUE TRIAL OR, IN THE ALTERNATIVE, VACATE TRIAL DATEKATZOVF & RIGGS LLP

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parties already lost two weeks, which could have been used for the depositions. (Shim
Decl., 45.)

The parties can make up for the delay caused by defense counsels by double,
triple, or quadruple tracking depositions in January and by taking depositions on
Saturdays. Plaintiff is willing to do all of these in order to keep the scheduled trial date.
Because of the impending five year statute, Plaintiff is unwilling to take the risk of a
delay in the trial date, and no such delay is warranted by these facts.

ARGUMENT
A Trial Dates Are Firm; the Defense Has Not Shown Any Good Cause Under

Rule 3.1332 (c), and the Considerations Under Rule 3.1332(d) Militate
Against Granting Continuance

California Rules of Court (“CRC”) 3.1332 states that the dates assigned for trial
are firm and the parties must regard the date as certain. At the January 12,2012 CMC,
the Court set the trial date of February 4, 2013. No one objected to the trial date or the
proposed discovery schedule where the expert depositions were to commence in
October 2012. There is no unavailability of any essential witness, party, or trial counsel
because of death, illness or other excusable circumstances. There is no substitution of
counsel. There is no new party. There is no inability to obtain essential testimony,
document or other material evidence. In sum, there is no significant change in the status
of the case, other than the two week delay caused by defense counsel’s unjustified
refusal to produce their experts for depositions until the automatic stay was lifted on
December 3, and nothing has occurred that remotely justifies a continuance. (CRC

3.1332(c).) Under 11 USC § 362, the automatic stay applies only to the debtor or the

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS AND CROSS-
COMPLAINANTS’ MOTION TO CONTINUE TRIAL OR, IN THE ALTERNATIVE, VACATE TRIAL DATEKATZOVF & RIGGS LLP

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debtor’s estate. Despite repeated requests, Defendants failed to provide any legal
authority to the contrary.

There is no justification for seeking a three month continuance to May 2013, let
alone a five month continuance to July, when there was a delay of depositions for two
weeks. Any continuance, at this point, would put the five year statute in severe peril,
especially when the Court is faced with ongoing budget crises and a shortage of
courtrooms. All parties would have to agree to any extension of the five year period, or
agree to waive the right to seek dismissal under Code of Civil Procedure § 583.310, but
there is no such agreement at this time.

Plaintiff will also suffer severe prejudice if the trial is continued. The high
temperatures and inadequate ventilation have been determined to be health hazard by a
duly authorized public health official. (Declaration of Anthony Lin in Support of
Opposition to Defendants and Cross-Defendants’ Prior Motion to Continue Trial or, in
the Alternative, Vacate the Trial Date (“Lin Decl.”), 4 3.) There was a notice of
violation issued to one of the units in 2006 due to ventilation issues. (U/d., 5.) Plaintiff
has been waiting for six years for its day in court. Justice delayed is justice denied.

B. Had Defendants Not Refused to Proceed with Depositions for Two Weeks
and During the Last Week of the Year, the Parties Would Have Completed

Almost All of the Remaining Depositions By the Expert Deposition Cutoff of
15 Days Before Trial With a Reasonable Number of Double Tracking Days

If Defendants had not obstructed and delayed the depositions, there would have

been 41 working days for approximately 40 additional witnesses to be deposed, and the

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS AND CROSS-
COMPLAINANTS’ MOTION TO CONTINUE TRIAL OR, IN THE ALTERNATIVE, VACATE TRIAL DATEKATZOVF & RIGGS LLP

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parties could have completed’ almost all of the remaining depositions prior to the expert
deposition cutoff of January 21, 2013. (The Discovery Committee’s Proposed
Deposition Calendar dated November 16, 2012, attached as Exh. A to Shim Decl.) If
Defendants had agreed to proceed with depositions from December 26 — 31, 2012, the
parties probably could have completed all of the remaining depositions with only a bit
of double tracking. Under both scenarios, the parties would not have had to triple track
the depositions* and would have significantly reduced the double track days.

Moreover, there are six Plaintiffs attorneys from two law firms who regularly
work on this case. In comparison, Plaintiff estimates that there are at least 25 defense
attorneys from 15 law firms who regularly work on this case. (Shim Decl., § 7.)
Despite this disparity, Plaintiff is willing to proceed with the ambitious schedule with
some double and triple tracking days as necessary, which are not unusual in complex,
multi-party construction defect cases of this magnitude. In sum, the parties should be
able to obtain essential testimony and other material evidence with due diligent efforts,
especially if Defendants did not frivolously delay the depositions. Plaintiff would have
preferred a more reasonable schedule as well, but is willing and able to proceed as
needed, and Defendants have no one but themselves to blame for the inconvenient

schedule.

2 Depositions are deemed “completed” when they are commenced. (Code of Civil Procedure §
2024.010.

? Under the most recently circulated deposition calendar proposed by Plaintiff, there is only
one day of triple tracking. (Plaintiffs Proposed Deposition Calendar dated December 4, 2012,
attached as Exh. B to Shim Decl.)

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS AND CROSS-
COMPLAINANTS’ MOTION TO CONTINUE TRIAL OR, IN THE ALTERNATIVE, VACATE TRIAL DATEKATZOVF & RIGGS LLP

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Cc. Some of the Deadlines Under the Local Rules Do Not Apply to This Case,
and As to Those Which Do Apply, Plaintiff Is Willing to Enter into an
Stipulation to Extend Those Deadlines

It is true that the parties must file and serve motions in limine and the statement
re trial time limits no less than five (5) days before the trial date. (San Francisco
Superior Court Local Rules (“Local Rules”) 6.1 and 6.7.) That is why all of the
proposed deposition calendars do not have any deposition scheduled for January 27,
2013, which is five (5) days before trial. At any rate, as the Court previously made it
clear to the parties, this case will be assigned to another judge for the actual trial
proceedings. Thus, Plaintiff is willing to agree to an extension of time to file and serve
motions in limine and the statement re trial time limits to the time of the assignment of
the trial judge.

As to the deposition extracts and exhibit and witness lists, they are to be lodged
at least ten (10) days before trial, or later as soon as the trial judge is known. (Local
Rules 6.2 and 6.3.) Likewise, the jury instructions are to be delivered to the judge
before the first witness is sworn. (Code of Civil Procedure § 607a; Local Rules 6.4.)
Thus, these deadlines do not apply unless and until there is an assignment of the trial
judge.

CONCLUSION

There is no reason to continue trial that is recognized as adequate under the
California Rules of Court because they themselves caused the delay. The Court has no
cause to continue the trial at this point on its own motion. For the reasons set forth

above, the Court should deny the motion to continue trial.

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS AND CROSS-
COMPLAINANTS’ MOTION TO CONTINUE TRIAL OR, IN THE ALTERNATIVE, VACATE TRIAL DATE1 || Dated: December 19, 2012
LAW OFFICES OF ANN RANKIN
2 KATZOFF & RIGGS LLP

3 /s/ Sung E. Shim
By:
4 Sung E. Shim

5 Attorneys for BEACON RESIDENTIAL,
COMMUNITY ASSOCIATION

KATZOVF & RIGGS LLP

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS AND CROSS-
COMPLAINANTS’ MOTION TO CONTINUE TRIAL OR, IN THE ALTERNATIVE, VACATE TRIAL DATEKATZOFF & RIGGS LLF

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PROOF OF SERVICE

I, the undersigned, declare that I am over the age of 18 and am not a party to this
action. I am employed in the City of Oakland, County of Alameda, California; my
business address is 1500 Park Avenue, Suite 300, Emeryville, California 94608.

On the below date I served the attached document(s) entitled:

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANTS AND CROSS-COMPLAINANTS’ MOTION
TO CONTINUE TRIAL OR, IN THE ALTERNATIVE, VACATE TRIAL DATE

DECLARATION OF ANTHONY LIN IN SUPPORT OF PLAINTIFF’S
OPPOSITION TO DEFENDANTS AND CROSS-DEFENDANTS’ MOTION TO
CONTINUE TRIAL OR, IN THE Au re ERNATIVE, VACATE THE TRIAL

DECLARATION OF SUNG E. SHIM IN SUPPORT OF PLAINTIFF’S
OPPOSITION TO DEFENDANTS AND CROSS-DEFENDANTS’ MOTION TO
CONTINUE TRIAL OR, IN THE ALTERNATIVE, VACATE THE TRIAL

PROOF OF SERVICE (OPPOSITION PAPERS TO MOTION TO CONTINUE
TRIAL OR, IN THE ALTERNATIVE, VACATE THE TRIAL DATE

as follows: (SERVICE LIST ATTACHED)

SY MAIL) I caused such envelope to be deposited in the mail at Emeryville,
California. The envelope was mailed with postage thereon fully prepaid.

__. (BY MAIL) I am readily familiar with the firm's practice of collection and
processing of correspondence for mailing. It is deposited with the U.S. Postal Service
on the same day in the ordinary course of business. I am aware that on motion of
served, service is presumed invalid if postal cancellation date on postage meter is more
than | day after date of deposit for mailing in affidavit.

__.. (BY HAND) I caused each such document to be delivered by hand to the
attorney(s) noted above.

_. (BY FAX) I caused a true copy to be transmitted via facsimile to the addressee(s)
noted above at the FAX number noted after party's address.

_X. (BY EMAIL AND LEXIS) I caused a true copy to be transmitted via email to the
attorneys on the attached service list.

I declare under penalty of er ury under the laws of the State of California that
S

the foregoing is true and correct. leclaration is executed in Emeryville, California
on December 19, 2012. en voy,

Sung E. Shira

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS AND CROSS-
COMPLAINANTS’ MOTION TO CONTINUE TRIAL OR, IN THE ALTERNATIVE, VACATE TRIAL DATESERVICE LIST

Beacon Residential Community Association y. Catellus Third and King LLC, et al.,
San Francisco County Superior Court Case No. CGC 08-478453

Ann Rankin

Terry Wilkens

Law Offices of Ann Rankin
3911 Harrison Street
Oakland, CA 94611

Phone: (510) 653-8886
Fax: (510) 653-8889
arankin@annrankin.com
twilkens(@annrankin.com

Co-Counsel for Plaintiff Beacon
Residential Community Association

Randel Campbell

Lynch, Gilardi & Grummer

170 Columbus Avenue, 5th Floor
San Francisco, CA 94133

Phone: (415) 397-2800

Fax: (415) 397-0937
reampbell@lgglaw.com

Counsel for Architectural Glass and Aluminum
Co., Ine.

Steven M. Cvitanovic

Haight Brown & Bonesteel LLP
71 Stevenson Street, 20" Floor
San Francisco, CA 94105

Phone: (415) 546-7500
Fax: (415) 546-7505
sevitanovic@hbblaw.com

Co-Counsel for Defendants Mission Place
LLC; Mission Place Mess Holding LLC;
Mission Place Mezzanine LLC; Mission
Place Partners LLC; Centurion Real Estate
Investors IV, LLC; and Centurion Real
Estate Partners, LLC; Centurion Partners
LLC

Charles A. Hansen, Esq.

Peter J. Laufenberg, Esq.

Gregory K. Jung, Esq.

Wendel, Rosen, Black & Dean, LLP
1111 Broadway, 24" Floor

Oakland CA 94607

Phone: (510) 834-6600
Fax: (510) 834-1928
chansen@wendel.com,
plaufenberg@wendel.com
giung@wendel.com

Co-Counsel for Defendants Mission Place LLC;
Mission Place Mess Holding LLC; Mission
Place Mezzanine LLC; Mission Place Partners
LLC; Centurion Real Estate Investors LV, LLC;
and Centurion Real Estate Partners, LLC;
Centurion Partners LLC)

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS AND CROSS-
COMPLAINANTS’ MOTION TO CONTINUE TRIAL OR, IN THE ALTERNATIVE, VACATE TRIAL DATEDavid S. Webster, Esq.

Mark J. D’Argenio

Wood, Smith, Henning & Berman, LLP

1401 Willow Pass Road, Suite 700

Concord, CA 94520

Phone: (925) 222-3400

Fax: (925) 356-8250
dwebster@wshblaw.com,
mdargenio@wshblaw.com

Counsel for Catellus Development
Corporation; Catellus Commercial
Development Corporation; Catellus Urban
Development Corporation; Catellus Operating
Limited Partnership; Catellus Urban
Development Group, LLC, Catellus Third and

King LLC; and Third and King Investors, LLC;

ProLogis

John A. Koeppel, Esq.

Todd J. Wenzel, Esq.

Ropers, Majeski, Kohn & Bentley

201 Spear Street, 10" Floor

San Francisco, CA 94105

Phone: (415) 543-4800

Fax: (415) 972-6301

jkoeppel@ropers.com.

twenzel@ropers.com

Counsel for Catellus Development Corporation;
Catellus Commercial Development Corporation;
Catellus Urban Development Corporation;
Catellus Operating Limited Partnership;
Catellus Urban Development Group, LLC;
Catellus Third and King LLC; and Third and
King Investors, LLC; ProLogis

Steven H. Schwartz

Noel E. Macaulay

Schwartz & Janzen, LLP

12100 Wilshire Boulevard, Suite 1125
Los Angeles, CA 90025

Phone: (310) 979-4090

Fax: (310) 207-3344
sschwartz@sj-law.com

nmacaulay(@sj-law.com

Counsel for HKS, Inc., individually and dba
HKS Architects, Inc.

Kevin P. McCarthy
McCarthy & McCarthy

The Arlington Building

492 Ninth Street, Suite 220
Oakland, CA 94607

Phone: (510) 839-8100

Fax: (510) 839-8108
kmecarthy@mcecarthyllp.com

Counsel for Cross-Defendant Window Solutions,
Ine.

8. Mitchell Kaplan

Gregory Hanson

Gordon & Rees LLP

275 Battery Street, Suite 2000
San Francisco, CA 94111
Phone: (415) 986-5900

Fax: (415) 986-8054
skaplan@gordonrees.com
ghanson@gordonrees.com

Counsel for Webcor Construction, Ine. dba
Webcor Builders; Webcor Builders, Inc.;
Webcor Construction LP

Samuel Muir

Erin Dunker

Collins Collins Muir + Stewart LLP
1100 El Centro Street

South Pasadena, CA 91030

Phone: (626) 243-1100

Fax: (626) 243-1111
smuir@cemslaw.com
edunkerly@ccemslaw.com

Co-Counsel for Webcor Construction, Inc. dba
Webcor Builders; Webcor Builders, Inc.;
Webcor Construction LP

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS AND CROSS-
COMPLAINANTS’ MOTION TO CONTINUE TRIAL OR, IN THE ALTERNATIVE, VACATE TRIAL DATEWilliam H. Staples

Dana Duncan

Archer Norris

2033 North Main Street, Suite 800
Walnut Creek, CA94596

Phone: (925) 930-6600

Fax: (925) 930-6620
wstaples@archemorris.com
dduncan@archernorris.com

Counsel for Anning-Johnson Company

Scott A. Reinstein

Steven McDonald

Bledsoe, Cathcart, Diestel, Pederson & Treppa,
LLP

601 California Street, 16th Floor

San Francisco, CA 94108

Phone: (415) 981-5411

Fax: (415) 981-0352
smedonald@bledsoclaw.com
sreinstein@bledsoelaw.com

Counsel for Shooter & Butts, Inc.

Adam Brezine

Julien E. Capers

Bryan Cave, LLP

560 Mission Street, 25th Floor
San Francisco, CA 94105
Phone: (415) 268-2000

Fax: (415) 268-1999

adam, brezine@bryancave.com
julien.capers@bryancave.com
Counsel for Solutia, Inc.

Christopher Olsen

Clinton & Clinton

100 Oceangate, 14th Floor
Long Beach, CA 90802
Phone: (562) 216-5000

Fax: (562) 216-5001
colsen@clinton-clinfon.com,
scloud@elinton-clinton.com

Counsel for Thyssenkrupp Elevator Corporation

Christian P. Lucia

Denae Olivieri

Brent Basilico

Sellar Hazard Manning Ficenec & Lucia
1800 Sutter Street, Suite 460

Concord, CA 94520

Phone: (925) 938-1430

Fax: (925) 256-7508
clucia@sellerlaw.com

dolivieri@sellarlaw.com

Bbasilico@sellarlaw.com

Counsel for Cupertino Electric, Inc.; Creatvie
Masonry, Inc.; Carefree Toland Pools, Inc.;
JW. McClenahan, Inc.; N.V. Heathorn, Inc.;
Critchfield Mechanical, Inc.; West Coast
Protective Coating, Inc.; Blue's Roofing
Company; Van-Mulder Sheet Metal, lnc., F.
Rogers Corporation; Roofing Constructors,
Inc., dba Western Roofing Service; Allied Fire
Protection

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS AND CROSS-
COMPLAINANTS’ MOTION TO CONTINUE TRIAL OR, IN THE ALTERNATIVE, VACATE TRIAL DATE