On August 08, 2008 a Order was filed involving a dispute between Beacon Residential Community Association, Catellus Commericial Development Corp., Catellus Development Corporation, Catellus Operating Limited Partnership, Catellus Residential Construction, Inc., Catellus Third And King Investors Llc, Catellus Third And King Llc, Catellus Urban Development Corporation, Catellus Urban Development Group, Llc, A Delaware, Centurion Real Estate Investors Iv,Llc, Centurion Real Estate Partners, Llc, Mission Place Llc, Mission Place Mezzanine Llc, Mission Place Mezz Holdings Llc, Mission Place Partners Llc, Prologis, Shooter & Butts, Inc., Third And King Investors Llc, Third And King Investors, Llc, A Delaware Limited, Thyssenkrupp Elevator Corporation (Erroneously, Webcor Builders,Inc, Webcor Construction Inc., Webcor Construction, Inc Dba Webcor Builders, Window Solutions, Inc., and All Defendants See Scanned Documents, Allied Fire Protection, Anning-Johnson Company, Architectural Glass & Aluminum Co., Inc, Blue'S Roofing Company, Carefree Toland Pools, Inc., Catellus Commerical Development Corporation, Catellus Commericial Development Corp., Catellus Development Corporation, Catellus Operating Limited Partnership, Catellus Residential Construction, Inc., Catellus Third And King Investors Llc, Catellus Third And King Llc, Catellus Urban Development Corporation, Catellus Urban Development Group, Llc, A Delaware, Catellus Urban Development, Llc, Centurion Partners, Llc, Centurion Real Estate Investors Iv,Llc, Centurion Real Estate Partners, Llc, Creative Masonry, Inc, Critchfield Mechanical, Inc., Cupertino Electric,Inc., Does 1 Through 200, Does 52-200, Inclusive, F. Rodgers Corporation, F. Rodgers Corporation (Fka F. Rodgers Insulation, F. Rodgers Insulation Residential, Inc., Hks Architects, Inc, Hks, Inc, Hks, Inc Individually And Dba Hks Architects, Inc, J.W. Mcclenahan Co., Mission Place Llc, Mission Place Mezzanine Llc, Mission Place Mezz Holdings Llc, Mission Place Partners Llc, N.V. Heathorn, Inc., Poma Corporation, Prologis, Roofing Constructors, Inc. Dba Western, Shooter & Butts, Inc., Skidmore Owings & Merrill Llp, Skimore Owings & Merrill Llp, Third And King Investors Llc, Thyssen Krupp Elevator Corporation, Thyssenkrupp Elevator Corporation (Erroneously, Thyssenkrupp Elevators Corporation, Tractel Inc., Van-Mulder Sheet Metal, Inc., Webcor Builders,Inc, Webcor Construction Inc., Webcor Construction, Inc, Webcor Construction, Inc Dba Webcor Builders, Webcor Construction Inc.,Individually And Doing, Webcor Construction Lp Individually And Dba Webcor, Webcor Construction Partners Llc, West Coast Protective Coatings, Inc., Western Roofing Service, Window Solutions, Dba Window Solutions, Inc., Window Solutions, Inc., for CONSTRUCTION in the District Court of San Francisco County.
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MOMMA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Dec-14-2012 10:34 am Case Number: CGC-08-478453 Filing Date: Dec-14-2012 10:33 Filed by: FELICIA GREEN Juke Box: 001 Image: 03874778 ORDER BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al 001003874778 Instructions: Please place this sheet on top of the document to be scanned.- Coo nN Aw FY NY 5 Adam Brezine (SBN: 220852) adam. brezine@bryancave.com Julien E. Capers (SBN: 275733) julien.capers@bryancave.com BRYAN CAVE LLP 560 Mission Street, 25" Floor San Francisco, CA 94105 Tel: (415) 268-2000 Fax: (415) 268-1999 Attorneys for Cross-Defendants SOLUTIA INC. BEACON RESIDENTIAL COMMUNITY ASSOCIATION, Plaintiff, Vv. CATELLUS THIRD AND KING, LLC; et al Defendants. SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO WINDOW SOLUTIONS, INC., Cross-Complainant, v. SOLUTIA INC. and MOES 1-100, Inclusive, Cross-Defendants. ~ San ‘IL. Superior Court DEC 1 4 2012 CLERK OF TH COURTigf Y why Hlecons Deputy Clerk CASE NO. CGC 08-478453 SOLUTIA INC.’S OBJECTIONS TO : WINDOW SOLUTIONS, INC.’S EVIDENCE IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND [PROFOSED] ORDER [Concurrently filed with Reply In Support of Motion for Summary Judgment or Summary Adjudication and Declarations of James Kinley and Steve DeBusk] Date: December 14, 2012 Time: 9:30 a.m. Dept.: 304 Cross-Complaint filed: March 21, 2011 Trial Date: February 4, 2013 77301 v3 saf Solutia Inc.’s Objections to Window Solutions, Jnc.’s Evidence in Opposition to Motion for Summary Judgment Case No. CGC 08-478453 ORL AND DRIGINALPursuant to California Code of Civil Procedure section 437c(b)(5) and California Rule of Court 3.1354, Cross-Defendant Solutia Inc. (“Solutia”) hereby objects to the following evidence filed by Cross-Complainant Window Solutions, Inc. (“WSI”) in opposition to Solutia’s Motion for Summary Judgment, or in the alternative, Summary Adjudication. OBJECTIONS TO DECLARATION OF JAN SWANEY glazing, raising surface temperatures in excess of 160°F; and 3) it is probable that the observed structural cracking of the interior panel of insulated window glazing has been caused by the excessive heat gain and elevated glazing temperature; and 4) the excessive heat gain and elevated glazing temperature are the probable causes of failed IGU and subsequent condensation.” MATERIAL GROUNDS FOR RULING ON OBJECTED TO OBJECTION OBJECTION | Declaration of Jan Swaney (“Swaney | Opinion Based on Improper | Sustained: Decl.”), 1 4, page 2 lines 16 — 22: Matter (Evid. Code § 803). Overruled: xX “Page 4 of the letter states: 1) the Hearsay if offered to prove we . . . Noy TAKEN application of the glazing film has assertions in letter (Evid. foe Te exacerbated, rather than mitigated the ) Code §§ 1200, et seq). ] ROTH solar heat gain; 2) the heat film traps Document speaks for itself. the radiation at the inside face of the Improper secondary evidence of the content of a writing (Evid. Code § 1521). 2 Case No. CGC 08-478453 877301 v3 saf Solutia Inc.’s Objections to Window Solutions, Inc.’s Evidence in Opposition to Motion for Summary Judgment[3. Swaney Decl. § 6, page 3, lines 1-9: *Glass/glazing breakage can occur from a variety of factors such as impact, thermal stress, bending (racking of the sash), and/or excessive pressure differences between the airspace and the outside air. When considering breakage from thermal stress, it can be caused by the glass not being able to sustain the thermal conditions experienced at the site. There are also many possible causes of glazing breakage and IGU failures from thermal stress. The possible causes include, but not limited to, the following or a combination of the following: glass fabrications, glass orientation to sunlight, outdoor overhangs, indoor shading (blinds, draperies, etc.), size of window, flaws at the glass edge, installation (edge clearance, supports) coatings, tints application of films, and argon filing.” Speculation (Korsak y. Atlas Sustained: Hotels, Inc., 2 Cal. App. 4th Overruled: ‘NX 1516, 1526 (1992) experts may not rely on speculation or conjecture). Opinion Based on Improper Matter (Evid. Code § 803) (if construed as offering opinion as to cause of any particular damage). 4 Solutia Inc.’s Objections to Window Solutions, Inc.'s Evidence in Opposition to Motion for Summary Judgment Case No. CGC 08-478453 #77301 v3 safme Coe Ia Dw e BON 10 Swaney Decl. | 7, page 3, lines 10-14: “A glazing breakage from thermal stress can happen with the application of coating/film at any stage in the life of the coating/film. Since many factors can contribute to glazing breage or IGU failures, itis not reasonable to conclude in this litigation that glazing breakage was Speculation (Korsak v, Atlas Hotels, Inc., 2 Cal. App. 4th 1516, 1526 (1992)— experts may not rely on speculation or conjecture). Opinion Based on Improper Matter (Bvid. Code § 803) (if construed as offering opinion as to cause of any particular Sustained: overruled regarding window coatings to ‘Window Solutions. The descriptions of the allocation are ‘3.3 A reflective film is improperly applied to windows,’ ‘3.4 Some glazing has cracked and/or condensation,” and “3.8 Reflective film is applied directly to annealed glazing.” Document speaks for itself. Improper secondary evidence of the content of a writing (Evid. Code § 1521). likely to happen within the first full damage). year after the application of the film at issue at the subject project” Swaney Decl. 4 8, page 3, lines 15-19: Opinion Based on Improper Sustained: “J reviewed the following plaintiff's Matter (Evid. Code § 803). Overruled: xX document: The Preliminary Defect Hearsay if offered to prove List by Subtrade dated September 26, assertions in letter (Evid. On fon 2012. The plaintiff allocated defects Code §§ 1200, et seq). TRoTH 5 Solutia Inc.’s Objections to Window Solutions, Inc.’s Evidence in Opposition to Motion for Summary Judgment Case No. CGC 08-478453 T7301 V3 sofwo eH WwW RF WN 10 6. | Swaney Decl. { 9, page 3, line 22 — page 4, line 4: “Page 11 of the report shows the following as defects and damages: 1) 3.3 A reflective film has been applied to windows to reduce solar heat gain and violates glazing manufacturer’s warranty provisions; 2) 3.4 Some glazing has cracked, and/or there is condensation on glass panes in insulated dual window glazing (IGU); and 3) 3.8 Reflective | film is installed directly to annealed glazing (potential to cause thermal breakage).” Opinion Based on Improper Matter (Evid. Code § 803). Hearsay if offered to prove assertions in letter (Evid. Code §§ 1200, et seq). Document speaks for itself. Improper secondary evidence of the content ofa writing (Evid. Code § 1521). Sustained: Overruled: % 6 477301 v3 sat Solutia Inc.’s Objections to Window Solutions, Inc.’s Evidence in Opposition to Motion for Summary Judgment Case No. CGC 08-478453Swaney Decl. § 10, page 4, lines 5-11: “In its Supplemental Report #3, the plaintiff claims that the film at issued being installed directly to 1GU units caused thermal breakage. As stated in paragraph 6 above, there are many potential causes of glazing breakage from thermal stress. The possible causes include, but not limited to, the following or a combination of the following: glass fabrications, glass orientation to sunlight, outdoor overhangs, indoor shading (blinds, draperies, ete.), size of window, flaws at the glass edge, installation (edge clearance, supports) coatings, tints application of films, and argon filing.” Opinion Based on Improper Matter (Evid. Code § 803). Hearsay if offered to prove assertions in letter (Evid. Code §§ 1200, et seq). Document speaks for itself. Improper secondary evidence of the content of a writing (Evid. Code § 1521). Sustained: Overruled: % 7 Solutia ine.’s Objections to Window Solutions, Inc. Case No. CGC 08-478453 77301 v3 saf 3 Evidence in Opposition to Motion for Summary Judgmentoc oe NAH FF YN Swaney Decl. { 11, page 4, lines 12- 19: “Furthermore, I reviewed the following document: A letter by CPFilms Inc. dated March 28, 2005. The letter states: 1) the film at issue looks good on its Film to Glass chart; 2) the glass at issue is manufactured by Northwest Industries Inc. which has a good reputation in the industry; 3) the film at issue is compatible with the glass units at the subject project in that it would not add a significant change to the 2% seal failure rate on insulated glass units (GU); 4) itis good to use the film at issue in San Francisco which has mild temperatures; and 5) CPFilms Inc. has alow concem for using the film at issue in the moist climate in San Francisco.” Opinion Based on Improper Matter (Evid. Code § 803; Powell y, Kleinman, 151 Cal. App. 4th 112, 123 (2007), citing Bushling v. Fremont Medical Center 117 Cal. App. 4th 493, 510 (2004)). Document speaks for itself. Misstates contents document. Improper selective of complete writing. Improper secondary evidence of the content of a writing (Evid. Code § 1524). States an improper conclusion. Sustained: Overruled: K. of quoiation legal 8 Solutia Inc.*s Objections to Window Solutions, Tne.’s Evidence in Opposition to Motion for Summary Judgment Case No. CGC 08-478453 #77301 V3 sat9. | Swaney Decl. | 12, page 4, lines 20- 26: “The content of this March 28, 2008 letter shows CPFilms Inc. made atechnical analysis to evaluate the performance of both the film and glass at issue when installed at the subject project. CPFilms Inc. concluded that the film would apply well to the glass and was suitable for the application as it related to performance and possible glass breakage IGU failure. By using the findings from the technical analysis, CPFilms Inc. determined its warranty coverage and priced the film at issue to be sold to Window Solutions.” Opinion Based on Improper Matter (Evid. Code § 803; Powell v. Kleinman, 151 Cal. App. 4th 112, 123 (2007), citing Bushling v. Fremont Medical Center 117 Cal. App. 4th 493, 510 (2004)). Document speaks for itself. Misstates content of document. Lack of personal knowledge or foundation if offered to support factual claims. (Evid. Code §702) Improper secondary evidence of the content ofa writing (Evid. Code § 1521). States an improper legal conclusion. Sustained: Overruled: K 9 #7730% v3 saf Solutia Inc.’s Objections to Window Solutions, Inc.’s Evidence in Opposition to Motion for Summary Judgment Case No. CGC 08-478453OBJECTION TO DECLARATION OF GRACE KOSS Decl.”), { 6, page 2 lines 28-10: “Expert discovery is ongoing. PTOs in this litigation manage discovery schedule. Many experts have yet to be deposed. Their testimony will further shed light on claims against Window Solutions regarding the film supplied by Solutia™ MATERIAL GROUNDS FOR RULING ON OBJECTED TO OBJECTION OBJECTION 10. | Declaration of Grace Koss (“Koss Lack of foundation or Sustained: personal knowledge. (Evid. Code § 702). Improper attorney testimony. Overruled: % 11. | Koss Decl. §7, page 2 lines 20-21: “Window Solutions disputes James Kinley’s testimony in its Opposition to Solutia’s Motion for Summary Judgment or Summary Adjudication.” Lack of foundation or personal knowledge. (Evid. Code §702). Improper attorney testimony. Purports to state legal conclusion. Sustained: Overruled: xX Respectfully submitted, Dated: December 7, 2012 Dated: 12-(4- [2 BRYAN CAVE LLP blow hye Adam Brezine Attomeys for Cross-Defendant Nw Judge of the Superior Court 10 #77301 v3 saf Solutia Inc.’s Objections to Window Solutions, Inc.’s Evidence in Opposition to Motion for Summary Judgment Case No. CGC 08-478453