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

DEC 14 2012

Clerk of the Court
BY: ANNIE PASCUAL
Deputy Clerk

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.

SS eS SS SS SSS

Case No. CGC 08-478453
CLASS ACTION

PLAINTIFF’S REPLY TO
OBJECTIONS TO EVIDENCE
SUBMITTED IN SUPPORT OF
MOTION FOR CLASS
CERTIFICATION

Date: Dec. 21, 2012

Time: 9:30 a.m.

Dept.: 304

Judge: Hon. Richard A. Kramer

Trial Date: Feb. 4, 2013

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PLAINTIFF'S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF 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 Motion for class certification as follows:

A. Declaration of Michael Lefler
Material Objected to: Grounds for
Objection:

4. As shown on Exhibit A, 1. Lacks foundation
many of the units registered (Evid. Code §§ 402

temperatures over 80 —405, 812 — 813).
degrees on thousands of

occasions. Many of the 2. Hearsay (Evid.
units registered Code § 1200.)

temperatures over 90
degrees and some of the
units registered
temperatures over 100
degrees. The data, as a
whole, shows a problem
with overheating of the unit
interiors, in my opinion.

Plaintiffs 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 Lefler Decl. adequately
authenticates the Chart summarizing
his data attached as Exhibit A asa
writing 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
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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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
violet. Units registering

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
hearsay and other inadmissible

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Material Objected to: Grounds for

Objection:

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.

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
per year are shown in red.
Units registering such

(Evid. Code $§ 402
—405, 812 — 813).

2. Hearsay (Evid.
Code § 1200).

Plaintiff’s Response to
Objection:

matter to form their opinions. (Evid.
Code § 801(b).)

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

1. Lacks foundation 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.”
(Evid. Code § 801(a).)

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PLAINTIFF'S REPLY TO OBJECTIONS TO EVIDENCE SUBMITTED IN SUPPORT OF MOTION
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Material Objected to:

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.

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
requirements in several
respects. Apart from code
considerations, the design

Grounds for
Objection:

Plaintiff’s Response to
Objection:

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.

1. Lacks foundation The Lefler Decl. provides adequate

(Evid. Code §§ 402
— 405, 812 — 813).

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).)

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

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Material Objected to:

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
ventilation. The acoustical
tests thus disallowed the use
of open windows for
ventilation, except on the

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 H, LLC v.
Cooper (2007), 154
Cal.App.4™ 525,
523, fn. 3 (“WRI”);
Downer v. Bramet

(1984) 152

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).)

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

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Material Objected to: Grounds for

Objection:

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 small
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.

Cal.App.3d 837,
841 (“Downer’”’).)

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
fans (above the
refrigerator), clothes dryer,
and bathroom exhaust
systems. The sub-duct
systems provide a negative

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

3. Probative value
outweighed by risk

Plaintiff’s Response to
Objection:

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
opinions.

The subject matter of the testimony
is “sufficiently beyond common
experience that the opinion of an

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Material Objected to:

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:

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.
CWVRI Opportunity
Loans H, LLC vy.
Cooper (2007), 154
Cal.App.4" 525,
523, fa. 3 (“WRI”);
Downer v. Bramet
(1984) 152
Cal.App.3d 837,
841 (““Downer’”’).)

Plaintiff’s Response to
Objection:

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
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

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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,
523, fa. 3 (“WRI”);
Downer v. Bramet
(1984) 152
Cal.App.3d 837,
841 (“Downer’”’).)

Plaintiff’s Response to
Objection:

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
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

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Grounds for

Material Objected to:
Objection:

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

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
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

Plaintiff’s Response to
Objection:

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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Material Objected to:

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.

14. Two hundred ninety
(290) of the units of the

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.)

1. Lacks foundation
(Evid. Code §§ 402

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
systems.

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

Beacon Project are in the —405, 812-813 qualifications as an expert and
high rise buildings, which investigation of the subject matter to
have a mechanical provide the stated testimony and
ventilation system. We opinions.
have conducted a review of

Li

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Material Objected to: Grounds for
Objection:
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
—405, 812 — 813

15. As part of my
assignment in this case, our
office under my direction
has evaluated the cause of
the overheating problem at
the Beacon Project. The
overheating problem, in my
opinion, is caused by a
combination of factors.
Some of these factors are
mentioned in this
Declaration.

1. Lacks foundation
(Evid. Code §§ 402

16. A factor contributing to
the overheating problem is

Plaintiff’s Response to
Objection:

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).)

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

large walls of glazing—in -405, 812-813 qualifications as an expert and
many cases, from floor to investigation of the subject matter to
ceiling—in units which get provide the stated testimony and

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Material Objected to:

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 coal 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
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

Grounds for
Objection:

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

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

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

Plaintiff’s Response to
Objection:

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
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

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Material Objected to: Grounds for

Objection:

(“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
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
(Evid. Code §§ 402
—405, 812 — 813).

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 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

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

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

§ 801(b).)
20. As part of my work on — 1. Lacks The Lefler Decl. provides adequate
this case, I have reviewed foundation; other foundation in setting forth Lefler’s
units in which solutions properties must be —_ qualifications as an expert and
such as shades, ceiling fans, substantially investigation of the subject matter to
and opening of windows similar. (Evid. provide the stated testimony and
(sometimes in spite of the Code §§ 402-405, opinions.
associated acoustic 812 ~ 813).
problems) have actually The subject matter of the testimony
been tried. I have found is “sufficiently beyond common
that such methods, at the experience that the opinion of an
Beacon Project, are expert would assist the trier of fact.”
inadequate to reduce (Evid. Code § 801{a).)
interior temperatures to an
acceptable level. In other The proffered testimony does not
buildings in the City of San provide any opinion on the other
Francisco, adequate properties.
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
case with the Beacon
project, due to the
combination of design and
construction issues
discussed above, in my
opinion.
22. My observations of 1. Lacks foundation The Lefler Decl. provides adequate
units in which interior (Evid. Code §§ 402 foundation in setting forth Lefler’s
shades are installed indicate ~405,812~813). qualifications as an expert and
that such shades are investigation of the subject matter to
inadequate to prevent provide the stated testimony and
overheating, because heat opinions.

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Material Objected to:

builds up in the glass itself
and in the air between the
shade and the glass.

23. As part of my work
in this case, I 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.
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.

Grounds for Plaintiff’s Response to
Objection: Objection:

1. Lacks foundation The Lefler Decl. provides adequate

(Evid. Code §§ 402 foundation in setting forth Lefler’s

—405, 812-813). qualifications as an expert and
investigation of the subject matter to
provide the stated testimony and
opinions.

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Material Objected to:

Grounds for
Objection:

B. Declaration of Michael Burgess

3. In my opinion, the
overheating probiem
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
sources (i.c. the train station
and the SF Giants ball park)
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

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

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.
OVRI Opportunity
Loans H, LLC vy.
Cooper (2007), 154
Cal.App.4” 525,
523, fn. 3 (“WRI”);
Downer v. Bramet
(1984) 152
Cal.App.3d 837,
841 (“Downer”’).)

6. Hearsay (Evid.
Code § 1200).

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

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Material Objected to:

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.

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
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

Grounds for
Objection:

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

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. 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.

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 Downer (involving the “calling of
lawyers as ‘expert witnesses’ to give

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Material Objected to:

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
the air exchange rate or
reduced the cooling load
being experienced on the
interior of the unit. The
solar shades dropped the
temperature differential
slightly (about 3 degrees)
across the windows but
trapped heat between the
window and the shade
which caused heat to spill
out into the interior, past the

Grounds for
Objection:

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.
(WRI Opportunity
Loans HI, LLC v.
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:

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
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
Burgess Decl. does not state “a legal

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Material Objected to: Grounds for

Objection:

shade. The ceiling fan
simply mixed the hot air
creating some air velocity
but does not relieve the
space of the latent load
(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.

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

7. As a result of this
comprehensive study, we
are recommending that air-
cooled water chillers be
installed on the roofs of the
buildings and existing
chases be used to
distributed chilled water
piping system to fan coils
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

Plaintiff’s Response to
Objection:

conclusion” at issue in the matter but
states his opinion regarding the
effectiveness certain efforts to
remediate the construction defects at
issue in this action,

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.

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Material Objected to:

Grounds for
Objection:

Cc. Declaration of Michael Alfaro

7. Attached as Exhibit D to
this Declaration is a true

and correct copy of
responses that the

Association received to a
questionnaire circulated by

the Association to its

members in 2006. The
questionnaire did not ask

any questions about
overheating of unit

interiors, but numerous
responses mentioned the

problem as shown in

Exhibit D. Also included in
Exhibit D is a summary

sheet conveniently

summarizing the responses
bearing on overheating of
units that are included in

Exhibit D.

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.

Plaintiff’s Response to
Objection:

The Alfaro Decl. provides adequate
foundation in setting forth Alfaro’s
personal knowledge of the matters
set forth in this statement and
adequately authenticating the
questionnaires received by the
Association and its professional
management firm, Titan
Management Group, of which
Alfaro is the president.

The questionnaires attached as
Exhibit D were made in the regular
course of a business, at or near the
time of the act, condition, Alfaro is a
qualified witness who testified to
their identity and mode preparation;
and the sources of information and
method and time of preparation are
such as to indicate its
trustworthiness and thus constitute
business records meeting the
requirements of Evid. Code §§ 1271
and are exempt from the hearsay
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

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Material Objected to: Grounds for
Objection:

D. Declaration of Michael McCoy

4. The Board Members 1. Lacks foundation
make decisions on howto —_ (Evid. Code §§ 402
utilize the community’s — 405, 812 — 813).

financial resources. Since

2006, the Association has 2. Lack of personal
spent hundreds of knowledge (Evid.
thousands of dollars on Code § 702(a)).
legal fees and engineering

fees in an effort to solve the 5. Probative value
heat gain and ventilation outweighed by risk
problems for the of unfair prejudice,
homeowners. It is unlikely confusion of issue
that individual owners

would have the resources,

independent of the

Association, to solve these

complex legal and

engineering issues..

7-11 Defendants were
not served with
paragraphs 7 — 10
and portions of
paragraph 11, of the
McCoy declaration,

Plaintiff’s Response to
Objection:

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.

The McCoy Decl. provides adequate
foundation in setting forth McCoy’s
personal knowledge of the matters
set forth in this statement. McCoy is
a Board member and he has personal
knowledge as he lives at the Beacon
and owns a unit there.

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.

Defendants have in fact been served
with the McCoy Decl.

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Material Objected to:

13. I plan to continue to
own my unit at the Beacon.
1 like the location and the

view despite the fact that
these construction defects
continue to hold the fair
market value of the home
significantly below local
market and what I paid for
it 7 years ago. In addition,
this law suit prevents
owners from refinancing at
today’s favorable interest
rates. The Association has
engaged mechanical
engineers who have
determined what could be
done to correct the heat
gain and ventilation
problems at the complex.
At trial, the Association

will request money from the

responsible parties to
implement the fix that the
Association’s consultants
have designed.

Grounds for
Objection:

and they should
therefore be
excluded.

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

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

3. Improper opinion
testimony. (Evid.
Cade § 800 — 801.)

4. Probative value

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

D. Declaration of Jordan Davis

4. The Board Members
make decisions on how to
utilize the community’s
financial resources. Since
2006, the Association has
spent hundreds of
thousands of dollars on

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

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

Plaintiff’s Response to
Objection:

The McCoy Decl. provides adequate
foundation in setting forth McCoy’s
personal knowledge of the matters
set forth in this statement. McCoy is
a Board member and he has personal
knowledge as he lives at the Beacon
and owns a unit there.

The testimony is not an opinion but
a statement of the present intention
and personal knowledge of the
declarant.

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 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.

The Davis Decl. provides adequate
foundation in setting forth Davis’
personal knowledge of the matters
set forth in this statement. Davis is a
Board member and he has personal
knowledge as he lives at the Beacon
and owns a unit there.

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Material Objected to:

legal fees and engineering
fees in an effort to solve the
heat gain and ventilation
problems for the
homeowners. It is unlikely
that individual owners
would have the resources,
independent of the
Association, to solve these
complex legal and
engineering issues.

8. After close of escrow, I
moved into my home and
was dismayed by the solar
heat gain and ventilation
problems that I have
encountered on a regular
basis, often for weeks at a
time. Frequently the

temperature would be in the

90’s, when it was
significantly cooler outside.
During these times, my unit
is nearly uninhabitable. I
cannot work in the unit and
often am unable to sleep
due to the high
temperatures. If] try to
open a window to cool off
the unit, the noise level is
so high that I am also
unable to sleep for that
reason

Grounds for
Objection:

5. Probative value

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

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

3. Improper opinion
testimony. (Evid.
Code § 800 — 801.)

Plaintiff’s Response to
Objection:

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.

The Davis Decl. provides adequate
foundation in setting forth Davis’
personal knowledge of the matters
set forth in this statement. Davis is a
Board member and he has personal
knowledge as he lives at the Beacon
and owns a unit there.

This is not opinion testimony, this is
factual testimony of Davis as to the
conditions in his home.

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Material Objected to:

9. In addition, the unit is
very stuffy. There is little
or no air circulation in the
unit. [am unable to open
my windows because there
are limiters on them, which
I understand are required by
the building code, and also
because the building is
impacted by outside noise
on King St.

10. The problem became
unbearable in August of
2011, when my wife and I
brought home our newborn
son. During the first few
weeks at home with our
son, it was routinely 70-80
degrees outside, however
inside our units it was in the
90’s-100’s, even with the
windows open. Being that
newborns can’t regulate
their body temperatures, the
American Academy of
Pediatrics recommends
keeping infants in a “room
temperature in a range that
is comfortable for a lightly

Grounds for
Objection:

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

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

3. Improper opinion
testimony. (Evid.
Code § 800 - 801.)

4. Probative value

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

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

3. Hearsay (Evid
Code § 352).

4, Relevance.
(Evid. Code §§ 210,
350-351.)

5. Probative value

outweighed by risk
of unfair prejudice,
confusion of issues
(Evid. Code § 35