Motion,Ex Parte: BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al

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                                Steven M. Cvitanovic (Bar No. 168031)

Michael C. Parme (Bar No. 261719)

HAIGHT BROWN & BONESTEEL LLP

71 Stevenson Street, 20th Floor ELECTRONICALLY

San Francisco, California 94105-2981 FILED

Telephone: (415) 546-7500 Superior Court of California,

Facsimile: (415) 546-7505 County of San Francisco
DEC 20 2012

Charles A. Hansen (Bar No. 76679) Clerk of the Court

Peter J. Laufenberg (Bar No. 172979) BY: ANNIE oe coal Clerk

WENDEL, ROSEN, BLACK & DEAN LLP

1111 Broadway, 24th Floor

Oakland, California 94607-4036

Telephone: (510) 834-6600

Facsimile: (510) 834-1928

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

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John A. Koeppel, Esq.

Todd J. Wenzel, Esq.

ROPERS, MAJESKI, KOHN & BENTLEY
201 Spear Street, 10th Floor

San Francisco, CA 94105

Telephone: (415) 543-4800

Fascimile: (415) 972-6301

David S. Webster, Esq.

WOOD, SMITH, HENNING & BERMAN, LLP
1401 Willow Pass Road, Ste. 700

Concord, CA 94520

Telephone: (925) 356-8200

Fascimile: (925) 356-8250

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Attorneys for Defendants Attorneys for Catellus Development Corporation, Catellus Commercial
Development Corp., Catellus Operating Limited Partnership, Successor to Catellus Development
Corp., Catellus Third and King LLC, and Third and King Investors, LLC, ProLogis

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Sandy M. Kaplan (SBN 095065)
Gregory T. Hanson (SBN 201395)
GORDON & REES LLP

275 Battery Street, Suite 2000

San Francisco, CA 94111
Telephone: (415) 986-5900
Facsimile: (415) 986-8054

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LAW OFFICES 1
IAIGHT.BROUN & EVIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION
noms gia TO MOTION FOR CLASS CERTIFICATION| | Attorneys for Defendants Webcor Construction, Inc.; Webcor Builders, Inc.; Webcor Construction,
Inc. dba Webcor Builders on its own behalf and erroneously sued as Webcor Construction LP dba

2 | Webcor Builders

3 William H. Staples (Bar No. 64633)
Joana R. Mondescu (Bar No. 209471)

4 | ARCHER NORRIS APC
2033 North Main Street, Suite 800

5 | Walnut Creek, California 94596-3759

| Telephone: 925.930.6600

6| Facsimile: 925.930.6620

7

8

9

Attorneys for Defendant and Cross-defendant Anning-Johnson Company

Samuel J. Muir, Esq. (State Bar No. 89883)
Erin R. Dunkerly, Esq. (State Bar No. 260220)
Justin S. Morgan, Esq. (State Bar No. 279802)
COLLINS COLLINS MUIR + STEWART LLP
10 | 1100 El Centro Street

South Pasadena, CA 91030

11 | Telephone: (626) 243-1100

42 | Fascimile: (626) 243-1111

Attorneys for Defendant Webcor Construction, Inc. dba Webcor Builders

Randel J. Campbell, Esq. (SBN 209324)
14 | LYNCH, GILARDI & GRUMMER
A Professional Corporation
15 | 170 Columbus Avenue, Sth Floor
16 San Francisco, CA 94133
Telephone: (415) 397-2800
17 | Facsimile: (415) 397-0937

Attorneys for Defendant Architectural Glass and Aluminum Co., Inc.

Christian P. Lucia (SBN 203567)

19 | Brent F. Basilico (SBN 197159)

SELLAR HAZARD MANNING FICENEC & LUCIA APC

1800 Sutter Street, Suite 460

21 | Concord, CA 94520

Telephone: (925) 938 -1430

22 | Facsimile: (925) 256- 7508

3 Attomeys for Defendants and Cross-defendants Cupertino Electric, Inc.; Creative Masonry, Inc.;
Carefree Toland Pools, Inc.; J.W. McClenahan, Inc.; Van-Mulder Sheet Metal, Inc.; N.V.

24 | Heathorn, Inc.; Critchfield Mechanical, Inc.; Blue’s Roofing Company; West Coast Protective
Coatings; Allied Fire Protection; F. Rodgers Corporation; Western Roofing Service

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HAIGHT BROWN &  T 599.9000032 EVIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION

BONESTEEL, LLP.

Sum Francisoo ff 40127211 TO MOTION FOR CLASS CERTIFICATION2 SUPERIOR COURT OF THE STATE OF CALIFORNIA
3 FOR THE COUNTY OF SAN FRANCISCO
4
5 | BEACON RESIDENTIAL COMMUNITY ) Case No. CGC 08-478453
ASSOCIATION, d
6 ) EVIDENTIARY OBJECTIONS IN
Plaintiff, ) SUPPORT OF OPPOSITION TO
7 ) MOTION FOR CLASS CERTIFICATION
v. )
8 } [Filed concurrently herewith Opposition to
CATELLUS THIRD AND KING LLC, Motion for Class Certification;
9 Jet al. Compendium of Exhibits; [Proposed]
Order Re: Evidentiary Objections;]
10 Defendants. )
Date: December 21, 2012
1 Time: 2:30 p.m.
AND RELATED CROSS-ACTION Dept: 304
12 ) Judge: Hon. Richard A. Kramer
13 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
14 The parties identified above do hereby submit the following Evidentiary Objections
15 | in support of the Omnibus Opposition to Plaintiffs’ Motion for Class Certification.
16 (Expert Declarations)
17

A. DECLARATION OF MICHAEL LEFLER

18
4. As shown on Exhibit A, many of the units Grounds for Objection:
20 || registered temperatures over 80 degrees on .
thousands of occasions. Many of the units 1, Lacks foundation (Evid. Code §§ 402-
21 registered temperatures over 90 degrees and 405, 812-803).
29 || some of the units registered temperatures over .
100 degrees. The data, as a whole, shows a 2. Hearsay (Evid. Code § 1200).
23 || problem with overheating of the unit interiors,
in my opinion.
24
25 5. The overheating problem, according to the Grounds for Objection:
data we collected, exists in all buildings, on all . .
26 || elevations, and in most units from the second __| 1. Lacks foundation (Evid. Code §§ 402-
7 floor up. The causes of the problem are the 405, 801-803).
27] same in all buildings, on all elevations, and on .
228 all floors. A substantial number of units become 2. Hearsay (Evid. Code § 1200).
what most people would perceive not just as
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RAIGHT BROWN — I 7y>5.900032 + ~EWIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION
San Francisco 40127214 TO MOTION FOR CLASS CERTIFICATION1]; "uncomfortably warm," but "hot." Temperatures
are significantly higher than outside ambient
2 temperatures.
3 6. Attached as Exhibit B to this Declaration is Grounds for Objection:
4 || an illustrative diagram prepared by my office,
showing the distribution of severely overheated | 1. Lacks foundation (Evid. Code §§ 402-
5 |) units on the fifth floor level of all four buildings , 405, 801-803).
of the 250 King Street portion of the Beacon .
6 Project. North ‘is to the upper right on the 2. Hearsay (Evid. Code § 1200).
7 ||| diagram. On this diagram, units registering
interior temperatures of at least 80 degrees on
8 || 91 more days per year are shown in red. Units
9 registering such temperatures 37 to 91 days per
year are shown in violet. Units registering such
10 j| temperatures 19 to 36 days per year are shown
in blue. Units registering such temperatures 1 to
11 }} 18 days per year are shown in green. Units that
12 did not register temperatures above 80 degrees
are shown in white. As can be viewed
13 ]| graphically in Exhibit B, the overheated units
are evenly distributed and occur on the
14 |) courtyard portion, as well as the street facing
15 portion, of the Beacon Project. Thus, it is
incorrect to state that the most severely
16 ]| overheated units are on any one exposure,
vertical stack, or directional face of the
171) buildings.
18] 7. Attached as Exhibit C to this Declaration is Grounds for Objection:
19 | 20 illustrative diagram prepared by my office, . .
showing the distribution of severely overheated | !. Lacks foundation (Evid. Code §§ 402-
20 |] units on the fifth floor level of all four buildings | 405, 801-803).
of the 260 King Street portion of the Beacon .
21 Project. North iS to the upper right on the 2. Hearsay (Evid. Code § 1200).
22 || diagram. On this diagram, units registering
interior temperatures of at least 80 degrees on
23 || 91 or more days per year are shown in red.
Units registering such temperatures 37 to 91
24 days per year are shown in violet. Units
25 registering such temperatures 19 to 36 days per
year are shown in blue. Units registering such
26 ||| temperatures 1 to 18 days per year are shown in
green. Units that did not register temperatures
271! above 80 degrees are shown in white. As can be
28 viewed graphically in Exhibit C, the overheated
units in 260 King Street are also evenly
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distributed, and also oceur 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 Grounds for Objection:
system of all eight buildings of the Beacon
Project. As a result of this study, we have 1. Lacks foundation (Evid. Code §§ 402-
concluded that the ventilation system as to the | 405, 801-803).

interiors of the habitable spaces fails to meet the
minimum building code 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.

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9. The Beacon Project includes buildings that Grounds for Objection:
are noise-impacted, in the sense that due to the .
acoustical environment ("street noise"), the 1. Lacks foundation (Evid. Code §§ 402-
California Building Code provides that the 405, 801-803).

windows cannot be opened without .
unacceptable acoustical impacts. Acoustical 2. Lack of personal knowledge (Evid.
tests made at the time the buildings were Code § 702(a)).
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 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

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

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4. Legal conclusions and the manner in
which the law should apply to particular
facts are not subject to expert opinion.
(WRI Opportunity Loans II LLC v.
Cooper, 154 Cal. App. 4th 525, 532, fn.
3 [SWRI]; Downer v. Bramet (1984) 152
Cal. App. 3d 837, 841 [“Downer”].)

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designed a mechanical ventilation system for

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BONESTEEL, LLP. 2Z129-0000032

San Franco 4o1779).1 TO MOTION FOR CLASS CERTIFICATION1] the high rise buildings of the Beacon Project.
21 10. The mid rise buildings have multiple sub- Grounds for Objection:
3 duct shafts which provide exhaust airflow for . .
the building's kitchen exhaust fans (above the L. Lacks foundation (Evid. Code §§ 402-
4 ||| refrigerator), clothes dryer, and bathroom 405, 801-803).
exhaust systems. The sub-duct systems provide :
5 || a negative pressure on the condominiums which 2. Lack of personal knowledge (Evid.
6 || causes air to be drawn in through the Z ducts. Code § 702(a)).
Section 1203.3 of the California Building Code 3, Legal conclusions and the manner in
7 ||| requires a total ventilation rate of two air which the law should apply to particular
changes per hour in all habitable areas of f t subject PP vt partt
8 || condominiums. Based on our field investigation acts are not subject to expert opinion. .
9 at the Beacon Project, the Z ducts in the mid (WRI, supra, 154 Cal. App.4th at fin. 3;
rise buildings do not bring in enough air to meet Downer, supra, 152 Cal.App.3d at p.
10 || the code requirement for ventilation in the 841.)
1 haircome and Ivine room include the 4. Probative value outweighed by risk of
unfair prejudice, confusion of issues
12 (Evid. Code § 352).
13] 11. Section 1203.3 of the California Building _| Grounds for Objection:
14 || Code and the State Energy Code Title 24 .
requires outside air to be brought into all 1. Lacks foundation (Evid. Code §§ 402-
15}, habitable rooms. This means that Z ducts are 405, 801-803).
required for each bedroom and living room area .
16 in sound impacted units. Currently, the building 2. Lack of personal knowledge (Evid.
17 |) does not have Z ducts or other means of air Code § 702(a)).
transfer in all rooms as required to provide . :
18 || ventilation air to all habitable areas of the 0 eel conclusions and the manner tp
19 condominiums. This is a building code facta are ‘sol eubject ee P ae on articular
Violation, in my opinion. (WRI, supra, 154 Cal. App.4th at fn. 3;
20 Downer, supra, 152 Cal.App.3d at p.
21 841.)
22 || 12. The Z duct system consists of an exterior Grounds for Objection:
louver with an insect screen, a Z shaped duct in . .
23 I! the wall, an air filter, and a register. The Z ducts | 1. Lacks foundation (Evid. Code §§ 402-
24 || ca be cleaned only from the exterior of the 405, 801-803).
building, and accessing them to clean them
25 ||| requires the use of a telescoping man-lift or
other large lift. It is necessary to block off two
26 || lanes on King Street or on Townsend Street to
27 || erect the lift. The Z ducts are covered with
insect screens instead of the industry-standard
28 || bird screens. The insect screens quickly become
LAW OFFICES 6
EAGT BROWN ® 779.0002 + EVIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION
San Francisco 40127211 TO MOTION FOR CLASS CERTIFICATION1 || clogged with pollution, dirt, dead bugs, and the
like, blocking air flow. The clogged Z ducts
2 || have reduced outside air ventilation into the
3 units. This causes an air exchange problem and,
combined with the overall building design, also
4 || contributes to the overheating problem.
5 ||| 13. It makes no sense economically for the unit | Grounds for Objection:
6 || OneTS, as individuals, to attempt to install . .
additional Z. ducts, to install additional fans, or | 1- Lacks foundation (Evid. Code §§ 402-
7 ||| to pay to rent a telescoping man lift to clean or 405, 801-803).
replace the screens on Z ducts. These conditions :
8 I leading to inadequate ventilation are not caused 2. Lack of personal knowledge (Evid.
9 by any interior maintenance problem. The Z Code § 702(a)).
duets can re cleaned only from the outside, and 3. Economics is outside the scope of the
10 J] mot from the interior of the units. expert’s stated expertise. (Evid Code §
ll 720.)

12 ||| 14. Two hundred ninety (290) of the units of the | Grounds for Objection:
Beacon Project are in the high rise buildings,
13 || which have a mechanical ventilation system. 1. Lacks foundation (Evid. Code §§ 402-
14 We have conducted a review of the mechanical | 405, 801-803).

ventilation system in the high rise tower

15 ||| buildings as part of our work. The existing
mechanical ventilation system in these buildings
16 || has very little ability to reduce temperatures. It
17 does not provide adequate ventilation to all
habitable rooms in ail of the units, in my

18 ||| opinion.

19 || 15. As part of my assignment in this case, our Grounds for Objection:
20 office under my direction has evaluated the . .
cause of the overheating problem at the Beacon | !. Lacks foundation (Evid. Code §§ 402-

21 ||| Project. The overheating problem, in my 405, 801-803).
opinion, is caused by a combination of factors.
22 ||| Some of these factors are mentioned in this
Declaration.
23
24 || 16.4 factor contributing to the overheating Grounds for Objection:

problem is large walls of glazing—in many
25 || cases, from floor to ceiling—in units which get | 1. Lacks foundation (Evid. Code §§ 402-
a large amount of sun exposure because of their 405, 801-803).

26 compass orientation.

27
17. Another factor contributing to the Grounds for Objection:
28 overheating problem is that the materials from
LAW OFFICES 7
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San Francisca sont TO MOTION FOR CLASS CERTIFICATION1]) which the buildings are constructed have L. Lacks foundation (Evid. Code §§ 402-
significant thermal mass, which, in turn, causes 405, 801-803).
2 significant "thermal memory." This limits the ;
3 ability of the units to cool down at night, so that
the cycle continues the next day with no
4 || abatement. The buildings are constructed of
poured-in-place concrete, which is what causes
5 |] the thermal mass and leads to the thermal
6 || memory issue.
7 | 18. In addition, the original window glazing at | Grounds for Objection:
the Beacon Project was clear glass with no low-
8 ll e coating. The glazing chosen has a U value and | !. Lacks foundation (Evid. Code §§ 402-
9 solar heat coefficient that contribute to the 405, 801-803).
overheating problem. The U value is the factor .
10 || that relates to the amount of heat transfer into or 2. Lack of personal knowledge (Evid.
out of a building. The higher the U value of Code § 702(a)).
11] glass, the more heat that is transferred through
Rb the glass. The Solar Heat Gain Coefficient
("SHGC") is the more important contributor to
13 || the energy efficiency of the glass. The lower the
SHGC, the lower the heat build-up in the
141) building. As part of my work, I reviewed
1s information indicating that the clear glass was
substituted for a "low E" type glass as part of
16 || the value engineering during construction. No
effort was made to revise the Title 24
17 |} calculations for energy efficiency to reflect the
18 inferior windows, or to include other elements
of design such as air conditioning or increased
19 || ventilation that would offset the heat gain
effects of the inferior glass;
20
19, The overall configuration of the Beacon Grounds for Objection:
21 Project, including its combination of the type . .
3 || and amount of glazing; the fact that it is sound-_| 1. Lacks foundation (Evid. Code §§ 402-
impacted; the inadequate ventilation, and the 405, 801-803).
23 ||| thermal mass, overwhelm any efforts to solve
the overheating conditions through methods
241) such as shades and ceiling fans, in my opinion.
25 20. As part of my work on this case, I have Grounds for Objection:
26 }| reviewed units in which solutions such as
shades, ceiling fans, and opening of windows _| 1. Lacks foundation; other properties must
27} (sometimes in spite of the associated acoustic be shown to be substantially similar (Evid.
28 problems) have actually been tried. I have found | Code §§ 402-405, 801-803).
that such methods, at the Beacon Project, are
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40127211—

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
case with the Beacon project, due to the
combination of design and construction issues
discussed above, in my opinion.

22. My observations of units in which interior Grounds for Objection:
shades are installed indicate that such shades are .
inadequate to prevent overheating, because heat | 1. Lacks foundation (Evid. Code §§ 402-
builds up in the glass itself and in the air 405, 801-803).

between the shade and the glass.

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11 |] 23. As part of my work in this case, Ihave had | Grounds for Objection:
the opportunity to observe the effect of a film
12 }] that was installed on the glass in a large number | !. Lacks foundation (Evid. Code §§ 402-
of units by one of the developers. The film, in 405, 801-803).

13 | the manner in which it was applied, was not

14 effective in alleviating the overheating problem
at the Beacon Project. The film was applied to
15 |} the interior surface of the interior pane of the
windows. Thus, it fails to prevent solar energy
161] from entering the building envelope and

17 overheating the units. The glass overheats and
then radiates the heat into the units. Also, glass
18 ||| breakage in some units reportedly was observed
to be associated with this application of the

19} film. This is an expected result of the manner in
20 which the film was applied, in my opinion.

B. DECLARATION OF MICHAEL T. BURGESS, P.E.

24 |) 3. In my opinion, the overheating problem Grounds for Objection:

involves the design of the entire envelope and

25 |) ventilation system of the building. The overall | 1. Lacks foundation (Evid. Code §§ 402-
6 ||| construction has essentially established a 405, 801-803).

greenhouse effect. The major causes of the

27 || greenhouse effect include the substitution of
clear glazing in place of the low emissivity (i.e.
28 |) low E) glazing that the Title 24 consultant

4. Opinion not based on materials that
reasonably may be relied upon in forming
an opinion on the subject matter (Evid.

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assumed would be used when he prepared the Code §§ 801(b), 801-803).
Title 24 calculations submitted to the
Department of Building Inspection; the lack of | 5. Legal conclusions and the manner in
external shading (overhangs or awnings) at the | Which the law should apply to particular
windows, the amount of glazing percentage per facts are not subject to expert opinion.
square foot of occupied space; and the excessive | (V/R2 supra, 154 Cal. App.Ath at fn. 3;
external noise sources (i.e. the train station and Downer, supra, 152 Cal.App.3d at p. 841.)
ihe 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 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 Association's acoustic
consultant has measured exterior sound levels
are at approximately 70 dba at the skin of the
building. I have reviewed the acoustic
consultant's report in the course of my
investigation.

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4. 1 understand that the developer placed Grounds for Objection:
6 | window film on the interior of the glazing of . .
over half of the units in 2005. In my opinion, 1. Lacks foundation (Evid. Code §§ 402-
17]] the film, in the manner in which it was applied, | 405, 801-803).

did not resolve or even mitigate the overheating
problem. My understanding of the . reasonably may be relied upon in forming
19 |} manufacturer's warranty provision is that the an opinion on the subject matter (Evid.

placement of the film on the inside of the Code §§ 801(b), 801-803)

20 || window created an additional problem whereby , .
the warranty was voided. In some documents! | 5. Interpretation of warranties is a legal

4. Opinion not based on materials that

2 :
1 have reviewed, there are cases where the question, not properly the subject of expert
22 || placement of the film also has reportedly caused | opinion (Downer, supra, 152 Cal.App.3d
the glazing to crack. I understand from at p. 841.)

23 || discussing this situation with knowledgeable
experts is a direct result based on the manner in | 6. Hearsay (Evid. Code § 1200).
which the film was placed on the interior
25 || surface of the window.

97]| 5. In my opinion, methods which have thus far | Grounds for Objection:
been tested have failed to alleviate the . .
28 || overheating problem at the Beacon Project. 1, Lacks foundation (Evid. Code §§ 402-

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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

405, 801-803).

3. Legal conclusions and the manner in
which the Jaw should apply to particular
facts are not subject to expert opinion.
(WRI supra, 154 Cal. App.4th at fin. 3;

fans and, in one case, installing a transfer gril] | PW7¢?. Supra, 152 Cal.App.3d at p. 841.)

between habitable spaces when the code
mandated outside air is provided to the one
habitable space but not to another. These
methods have been ineffective because none of
them increased or altered the air exchange rate
or impacted the cooling load being experienced
on the interior of the unit. From my review and
analysis of the collected temperature and
relative humidity data over the last several
years, 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 shade. The ceiling fan
simply mixed the hot air creating some air
velocity but did not relieve the space of the
latent load (caused by moisture) nor did it
effectively reduce the sensible load (the

16 ]| perceived, or sensed degree of heat). Thus,
“opening the windows," "installing ceiling

7 fans," and "installing shades or blinds," either
18 individually or in combination, are not adequate
solutions for the overheating problem.

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19
7. As a result of this comprehensive study, we Grounds for Objection:

20 ||| are recommending that aircooled water chillers

1 be installed on the roofs of the buildings and 1. Lacks foundation (Evid. Code §§ 402-
existing chases be used to distributed chilled 405, 801-803).

22 ||| water piping system to fan coils that will be

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

26 ||| experienced.
27 Cc. DECLARATION OF MICHAEL ALFARO
28

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2 7. Attached as Exhibit D to this Declaration is a_| Grounds for Objection:
3 ||| true and correct copy of responses that the . .
Association received to a questionnaire 1. Lacks foundation (Evid. Code §§ 402-
41 circulated by the Association to its members in 405, 801-803).
2006. The questionnaire did not ask any .
5 questions about overheating of unit interiors, 2. rae oP ersonal knowledge (Evid.
6 || but numerous responses mentioned the problem Code § 702(a)).
7 as shown in Exhibit D, Also included in Exhibit 3. Hearsay (Evid. Code § 1200).
D is a summary sheet conveniently
g || Summarizing the responses bearing on __.. | 4. Improper testimony on the contents of
9 pverheating of units that are included in Exhibit a writing (Evid. Code § 1523).
10 5. Probative value outweighed by risk of
unfair prejudice, confusion of issues
il (Evid. Code § 352).
12
13 ‘(Homeowner Declarations)
14 D. DECLARATION OF MIKE MCCOY
15
16 |] 4. The Board Members make decisions on how | Grounds for Objection:
17 || to utilize the community’s financial resources. . .
Since 2006, the Association has spent hundreds | !. Lacks foundation (Evid. Code §§ 402-
18 || of thousands of dollars on legal fees and 405, 801-803).
engineering fees in an effort to solve the heat .
19 gain and ventilation problems for the 2. Lack of personal knowledge (Evid.
20 || homeowners. It is unlikely that individual Code § 702(a)).
owners would have the resources, independent . : :
21 ||| of the Association, to solve these complex legal 3. Probative ¥ alue outweigh ed by risk of
d ensineering i unfair prejudice, confusion of issues
» and engineering issues. (Bvid. Code § 352).
23} 7-11 Defendant were not served with paragraphs
"A 7 —10, and portions of paragraph 11, of the
Mike McCoy declaration, and they should
25 therefore be excluded.
26 ||| 13. I plan to continue to own my unit at the Grounds for Objection:
Beacon. I like the location and the view despite .
27 |] the fact that these construction defects continue | 1. Lacks foundation (Evid. Code §§ 402-
28 to hold the fair market value of the home 405, 801-803).
significantly below local market and what | paid
LAW OFFICES 12
HAIGHT. BROWNE | 55 oag9932, += EWIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION
San Francisco 4012724.1 TO MOTION FOR CLASS CERTIFICATIONLAW OFFICES

Co Om HD DH A FW LN

HAIGHT, BROWN &
BONESTEEL, LLP

‘San Francisca

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.

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).

E. 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 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.

Grounds for Objection:

1, Lacks foundation (Evid. Code §§ 402-
405, 801-803).

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).

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 I try to
open a window to cool off the unit, the noise
level is so high that J am also unable to sleep for
that reason.

Grounds for Objection:

1. Lacks foundation (Evid. Code §§ 402-
405, 801-803).

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

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

Grounds for Objection:

1. Lacks foundation (Evid. Code §§ 402-

13

zera002 EVIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION
4017211 TO MOTION FOR CLASS CERTIFICATION1 ]|| limiters on them, which I understand are 405, 801-803).
required by the building code, and also because
2 || the building is impacted by outside noise on 2. Lack of personal knowledge (Evid. Code
3 || King St. § 702(a)).
4 3. Improper opinion testimony (Evid. Code
§§ 800-801).
5 4. Probative value outweighed by risk of
6 unfair prejudice, confusion of issues (Evid.
Code § 352).
7
8
9
10 || 10. The problem became unbearable in August | Grounds for Objection:
of 2011, when my wife and I brought home our
11 }| newborn son. During the first few weeks at 1. Lacks foundation (Evid. Code §§ 402-
b home with our son, it was routinely 70-80 405, 801-803).
degrees outside, however inside our units it was :
B in the 90's-100's, even with the windows open. 3. Hearsay (Evid. Code § 1200).
Being that newborns can't regulate their body 4. Relevance (Evid Code. §§ 210, 350-351).
14 }]| temperatures, the American Academy of
Pediatrics recommends keeping infants in a 5. Probative value outweighed by risk of
15 |} "room temperature in a range that is unfair prejudice, confusion of issues (Evid.
16 comfortable for a lightly clothed adult", and Code § 352).
living in these conditions caused us to be fearful
17 || for the health of our son. For his safety we 6. Improper opinion testimony. (Evid. Code
purchased a portable air conditioner that was §§ 800-801.)
18 enough keep one room cooled to the high 70's,
19 but being confined to a single 10x12' room in
the apartment was very trying for my wife.
20 || Finally, after much deliberation, we decided
that we could no longer live in our unit, and
21 |} rented it out in September of 2011.
22 Unfortunately we were not able to cover our
costs with the rent, so it continues to be a
23 || financial burden.
24 |) 12. I would like to continue to own and one- Grounds for Objection:
day move back into my unit at the Beacon. |
25 || like the location and the view. The Association | |. Lacks foundation (Evid. Code §§ 402-
26 || has engaged mechanical engineers who have 405, 801-803).
determined what could be done to correct the .
27 || heat gain and ventilation problems at the er of personal knowledge (Evid. Code
complex. At trial, the Association will request §702@)).
28 money from the responsible implement the fix
LAW OFFICES 14
HAIGHT. BROWN Y r>6.c000082  _EWIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION
San Francisco 4027211 TO MOTION FOR CLASS CERTIFICATION| |) that the Association's consultants have 3. Relevance (Evid Code. §§ 210, 350-351).
designed.
2 4, Improper opinion testimony (Evid. Code
3 §§ 800-801).
4 5. Probative value outweighed by risk of
unfair prejudice, confusion of issues (Evid.
5 Code § 352).
6
7 DECLARATION OF CLARA CHUN DANIELS
8 : oo
9 2. 1am extremely concerned with the current Grounds for Objection:
10 || living conditions in our unit. My family .
purchased this unit when the Beacon first 3. Hearsay (Evid. Code § 1200).
11 | opened, The Beacon complex, one of the first .
12 || Be construction buildings in the South of 4. Relevance (Evid. Code §§ 210, 350-
Market area, was marketed with much fanfare 351).
13 ||| as a luxury, full-service residential community
14 with high-end amenities.
5 3. Immediately after purchase in September of | Grounds for Objection:
2005, and up until January 2012, our unit was . .
16 || tenant occupied. During these years, our tenants | 1. Lacks foundation (Evid. Code §§ 402-
had to deal with the heat gain issue, as well as 405, 801-803).
17 ||| all of the ongoing, intrusive testing measures .
8 that were conducted. As a result, it was very 2. rk of personal knowledge (Evid.
181) aifticult to raise the rent in proportion to the Code § 702(a)).
19 }| ever-increasing cost of maintaining the .
property. This was particularly frustrating since 3. Hearsay (Evid. Code § 1200).
20 many of the increased costs were due to the 4. Relevance (Evid. Code §§ 210, 350-
special assessments and increased HOA dues 351)
211) for the ongoing litigation efforts. The ongoing .
99 ||| construction litigation also made it nearly 5, Improper opinion testimony (Evid. Code
impossible to refinance the unit. In light of the | §§ 800-801).
23 || historically low interest rates, it is frustrating
that owners who have held onto their units 6. Probative value outweighed by risk of
2411 cannot take advantage of the low rates. This, of | unfair prejudice, confusion of issues (Evid.
25 || course, has created the additionally detrimental | Code § 352).
high rate of short sales and foreclosures in the
26 ||| complex.
27H) 4, Now, we find that we are facing more direct | Grounds for Objection:
28 || and dire consequences of these construction .
defects. We moved into the unit this past 1. Lacks foundation (Evid. Code §§ 402-
‘LAW OFFICES 15
HAIGHT BROWNE T7159 0900032 «= EVIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION
San Francisco nid TO MOTION FOR CLASS CERTIFICATION1 || January. Immediately, we began dealing with 405, 801-803).
heat issues. With the frequent warm weather
2 spells over the past few months, we have had to | 2- Relevance (Evid. Code §§ 210, 350-351).
find ways to: cool the unit, get cross ventilation, we : :
3 and abate the noise and air pollution that results 3. improper Soune testimony Pd. Code
4 || from opening the windows. These problems 85 8 41 2 owner, oer 52 Cal-App.3d
were mostly an inconvenience for us, two nt P. [improper to offer opinions on
51) adults, legal conclusions]).
6 4. Probative value outweighed by risk of
unfair prejudice, confusion of issues (Evid.
7 Code § 352).
816. immediately upon coming home, we began Grounds for Objection:
g |, dealing with these same heat and circulation . .
issues but with more detrimental effects on our | 1. Lacks foundation (Evid. Code §§ 402-
10 || newborn son. The issues are much more 405, 801-803).
ll worrisome because they affect his health and 2. Lack of personal knowledge (Evid. Code
are potentially life threatening.
§ 702(a)).
12
3. Improper opinion testimony (Evid. Code
13 §§ 800-801; Downer, supra, 152 Cal.App.3d
14 at p. 841).
15 4. Probative value outweighed by risk of
unfair prejudice, confusion of issues (Evid.
16 Code § 352).
17 |] 7. Babies cannot self regulate their Grounds for Objection:
temperatures; therefore, it is important to
18 maintain consistent room temperature 1. Lacks foundation (Evid. Code §§ 402-
19 |] conditions for them day and night. Babies also 405, 801-803).
spend most of their time sleeping, and do so ws : :
20 |} best in constant conditions. This means they 2. Improper opinion testimony (Evid. Code
. . §§ 800-801; Downer, supra, 152 Cal-App.3d
1 cannot easily move outside to escape the heat or | 5 p. 841).
get fresh air. Our baby, like many others, needs
22 || to be swaddled in order to fall asleep and to get_| 3, Relevance (Evid. Code § 210, 350-351).
undisturbed sleep. Swaddling, even in the
23 || lightest fabrics, increases body temperature. 4. Probative value outweighed by risk of
unfair prejudice, confusion of issues (Evid.
24 Code § 352).
25 8. Because of the heat gain and poor circulation | Grounds for Objection:
26 || conditions of the unit, we have had to be
constantly vigilant about the baby's temperature | 1. Lacks foundation (Evid. Code §§ 402-
27 || and the room conditions. Yet, even with this 405, 801-803).
28 negative Vigilance, Tpelhing shorter and 2. Lack of personal knowledge (Evid. Code
LAW OFFICES 16

HAIGHT, BROWN &
BONESTEEL, LLP.
San Francisco

EVIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION
TO MOTION FOR CLASS CERTIFICATION

ZU29-0000032
401272111] disrupted sleeping patterns (for both baby and § 702(a)).
parents), resulting from the high temperature . . .
2]| and outside noise. Poor sleep has a detrimental _ 3. Improper opinion testimony (Evid. Code
3 || affect on a baby's health and motor skills §§ 800-801; Downer, supra, 152 Cal.App.3d
development. at p. 841).
4 4, Relevance (Evid. Code § 210, 350-351).
5 5, Probative value outweighed by risk of
6 unfair prejudice, confusion of issues (Evid.
Code § 352).
7
9. Finally, and most importantly, these poor Grounds for Objection:
81) conditions are also potentially life threatening. . .
9 Studies have shown that the incidences of SIDS | |. Lacks foundation (Evid. Code §§ 402-
(Sudden Infant Death Syndrome) significantly 405, 801-803).
10 |} increase when a baby s temperature is too high 2. Lack of personal knowledge (Evid. Code
and there is insufficient air circulation.
11 § 702(a)).
12 3. Improper opinion testimony (Evid. Code
§§ 800-801; Downer, supra, 152 Cal_App.3d
13 at p. 841).
4 4, Relevance (Evid. Code § 210, 350-351).
) 5. Hearsay (Evid. Code § 1200).
16 6. Probative value outweighed by risk of
17 unfair prejudice, confusion of issues (Evid.
Code § 352).
18
10. Ultimately, these issues are not merely Grounds for Objection:
19 inconvenient, they are potentially life . .
20 |] threatening, And they pose such a risk that our 1, Lacks foundation (Evid. Code §§ 402-
son's pediatrician has voiced her serious 405, 801-803).
21] concems. 2. Lack of personal knowledge (Evid. Code
22 § 702(a)).
23 3. Improper opinion testimony (Evid. Code
§§ 800-801; Downer, supra, 152 Cal.App.3d
24 at p. 841).
25 4, Relevance (Evid. Code § 210, 350-351).
26 5. Probative value outweighed by risk of
7 unfair prejudice, confusion of issues (Evid.
Code § 352).
28
LAW OFFICES 17
HAIGHT, BROWN & EVIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION

pogsmEeLe  Vigonait TO MOTION FOR CLASS CERTIFICATIONDated: December ly 2012

WIN(& BONESTEEL, LLP

2
3 Steven M. Cvitanovic
Michael C. Parme
4 Attorneys for Defendants
5 Mission Place LLC; et al.
6 | Dated: December _/ I » 2012 WENDEL, ROSEN, BLACK & DEAN
7
8 By:
9
Attorneys for Defendants
10 Mission Place LLC, et al.
u |
12 | Dated: December / 4q 2012 ROPERS, MAJESKI, KOHN & BENTLEY
13
4 ALIA tor
. pel
15 ‘odd J. Wenzel
Attorneys for Defendants
16 Catellus Development Corp., et al.
17
18 | Dated: December [7] , 2012 WOOD, SMITH, HENNING & BERMAN
19 )
20 By: —
David S. Webster /08/4 beeur sey
21 Attomeys for Defendants
2 Catellus Development Corp., et al.
2
23
a4 Dated: December | | , 2012 GORDON & REES, LLP
25 |
26
27 Attorneys for Defendants
28 Webcor Construction, Inc., et al.
LAW OFFICES 18

HAIGHT, BROWN EVIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION
sovesteeh Ltr tt TO MOTION FOR CLASS CERTIFICATION1 | Dated: December 7 , 2012 ARCHER NORRIS APC

By: Mi A x: Kinta!
‘itliam H. Staples

Joana R. Mondescu
Attomeys for Defendants
Anning-Johnson Company

2
3
4
5
6 Dated: December AZ 2012 COLLINS COLLINS MUIR & STEWART LLP
7
8
9

By: oo

Samitet J. Muir

Erin R. Dunkerly

Justin S, Morgan
10 Attomeys for Defendants

Webcor Construction, Inc. dba Webcor
il Builders

12 | Dated: December / 4 > 2012 LYNCH, GILARDI & GRUMMER,

14 By: Kandd Ld,

Randel J. Capipbell

15 Attomeys for Defendants Architectural Glass
and Aluminum Co., Inc.

16 :

17 | Dated: December } Z > 2012 SELLAR HAZARD MANNING, et al.

18

19 By: —F
Christian P. Lucia

20 Brent F, Basilico
Attorneys for Defendants

21 Cupertino Electric, Inc., et al.

22

23

24

25

26

27

28

LAW OFFICES 19
HAIGHT. BROWNS —T ruos-couosr 4EWIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION
San Francisco” ff 4012721.1 TO MOTION FOR CLASS CERTIFICATIONCo OD em ND DH eH ee WY NY

PROOF OF SERVICE

STATE OF CALIFORNIA )
COUNTY OF SAN FRANCISCO

SS.I

| Beacon Residential Community Association v. catellus Third and King LLC, et al.
CGC-08-4 78453

lam employed in the County of San Francisco, State of California. I am over the
age of 18 and not a party to the within action. My business address is 71 Stevenson Street,
20th Floor, San Francisco, California 94105-2981.

On December 19, 2012, I served the within document(s) described as:

EVIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION TO
MOTION FOR CLASS CERTIFICATION

on the interested parties in this action:

[x] (LEXIS/NEXIS) I caused such document(s) to be Electronically Served through the
CourtLink System for the above-entitled matter. This service complies with Code
of Civil Procedure §1010. The file transmission was reported as complete and a
copy of the “JusticeLink Filing Receipt” page will be maintained with the original
document(s) in our office.

Executed on December 19, 2012, at San Francisco, California.
I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Paula M. Johnson
(Type or print name) (Sighpture)

21429-0000032
4024430 1 1