arrow left
arrow right
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview 
						
                                
Preview

                                Charles A. Hansen (Bar No. 76679)
Rois J. Laufenberg (Bar No. 172979)

WENDEL, ROSEN, BLACK & DEAN LLP
1111 Broadway, 24th Floor ELECTRONICALLY
Oakland, California 94607-4036 FILED
Telephone: (510) 834-6600 Superior Court of California,
Facsimile: (510) 834-1928 DEC of San Francisco
DEC 11 2012
Steven M. Cvitanovic (Bar No. 168031) Clerk of the Court
Zachary W. Shine (Bar No. 271522) BY: ANNIE PASCUAL
HAIGHT BROWN & BONESTEEL LLP Deputy Clerk

71 Stevenson Street, 20th Floor

San Francisco, California 94105-2981
Telephone: (415) 546-7500
Faesimile: (415) 546-7505

Oo em DW DH nH FF W YH

Attorneys for Defendants and Cross-Complainants Mission Place LLC; Mission Place
Mezz Holding LLC; Mission Place Mezzanine LLC; Mission Place Partners LLC;
Centurion Real Estate Investors 1V, LLC; and Centurion Real Estate Partners, LLC (sued
in its own name and erroneously sued as Centurion Partners LLC)

Soe
= Oo

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

Se oe eS
BR WN

BEACON RESIDENTIAL COMMUNITY ) Case No. CGC 08-478453

ASSOCIATION,
Plaintiff,

oe
n Ww

MISSION PLACE’S OPPOSITION TO
PLAINTIFF’S REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF
ITS OPPOSITION TO MISSION
PLACE’S MOTION FOR SUMMARY
ADJUDICATION ON THE EIGHTH
CAUSE OF ACTION

—
x

v.

CATELLUS THIRD AND KING LLC,
etal.

-
Oo

Defendants.

Date: December 14, 2012
Time: 10:00 a.m.

Dept: 304

Judge: Hon. Richard A. Kramer

tw
ve

AND RELATED CROSS-ACTION

Noy
—_ Oo
ee ee

N
Ww

NN NY NY WN
en HR A

LAW OFFICES 1

worm, 920882 | seaagnsy _ MISSION PLACE’S OPPOSITION TO PLAINTIFF'S REQUEST FOR

San Francisco 4019994.) JUDICIAL NOTICE=

wo wom nt DH NH & YH NN

10

LAW OFFICES

HAIGHT, BROWN &
BONESTEEL, LLP.
‘San Francisco

Defendant Mission Place LLC (hereinafter “Mission Place” or “Defendant”) hereby
submits the following Opposition and objections to Plaintiff, the Beacon Residential
Community Association’s, Request for Judicial Notice in support of its Opposition to
Mission Place’s Motion for Summary Adjudication as to the Eighth Cause of Action.

L INTRODUCTION

Plaintiff is attempting to circumvent the normal rules of evidence by requesting
judicial notice of “evidence” that may not be judicially noticed. Evidence Code section
452 only allows certain evidence to be judicially noticed in a limited amount of
circumstances, Additionally, judicial notice may only be used to prove the existence of
certain evidence, not to prove the truth of that evidence. Plaintiff has requested the Court
take judicial notice of the following:

(1) A copy of the Amended and Restated Declaration of Covenants, Conditions

and Restrictions and Reservation of Easements for Mission Place
(Residential) recorded December 23, 2004.

(2) Acopy of the First Amendment to Amended and Restated Declaration of
Covenants, Conditions and Restrictions and Reservation of Easements for
Mission Place (Residential), dated May 4, 2005.

(3) Acopy of the Certificate of Final Completion and Occupancy for 250 King
Street, issued Oct. 6, 2004.

(4) Acopy of the Certificate of Final Completion and Occupancy for 250 King
Street, issued Oct. 6, 2004.

(5) A copy of the Notice of Violation to the Beacon Owners Association
regarding 260 King Street, Unit #457, dated Dc. 18, 2006, and a copy of the
cover letter for same.

(6) | Acopy of the Declaration of Michael Alfaro in Support of Motion for Class
Certification and Exhibits A — D attached thereto, filed with the Court
August 24, 2012.

2
zuveon MISSION PLACE’S OPPOSITION TO PLAINTIFF’S REQUEST FOR
4019998.1 JUDICIAL NOTICECo mI DRA WN &

woN HY NY NY NY NY NY NY S| SF KF TF PF Pe Se Se St
ow AA FF oH SF SO we I DH BF WN = CO

LAW OFFICES

HAIGHT, BROWN &
BONESTEEL, LLP.
San Francisco

(7) | Acopy of the Declaration of Anthony Lin in Support of Plaintiff's
Opposition to Defendants and Cross-Defendants Motion to Continue Trial
or, in the Alternative, Vacate the Trial Date and an exhibit attached thereto,
filed with the Court October 19, 2012.

This “evidence” does not qualify as official government acts, is reasonably subject
to dispute and is not capable of immediate and accurate determination by resort to sources
of reasonably indisputable accuracy. Thus, judicial notice is not proper regarding the
above referenced “evidence.”

IL. ARGUMENT

It is unclear what authority Plaintiff believes allows the Court to take judicial notice
of the CC&Rs, the Certificates of Final Completion and Occupancy, and the Notice of
Violation. In Stevens v. Superior Court, the court held, “we have found no authority and
none has been cited for the proposition that materials prepared by private parties and
merely on file with state agencies may be judicially noticed pursuant to subdivision (c) ...”
Stevens v. Superior Court (1999) 75 Cal. App. 4th 594, 608. In the present case, the
CC&Rs, while recorded, were prepared by private parties rather than any government
agency.

Additionally, “the fact a court may take judicial notice of a recorded deed, or
similar document, does not mean it may take judicial notice of factual matters stated
therein .... The court does not take judicial notice of this fact, because it is hearsay and it
cannot be considered not reasonably subject to dispute.” Poseidon Development, Inc. v.
Woodland Lane Estates, LLC (2007) 152 Cal. App. 4th 1106, 1117. The California
Supreme Court has also held, “the taking of judicial notice of the official acts of a
governmental entity does not in and of itself require acceptance of the truth of factual
matters which might be deduced therefrom, since in many instances what is being noticed,
and thereby established, is no more than the existence of such acts and not, without
supporting evidence, what might factually be associated with or flow therefrom.” Mangini
v. RJ. Reynolds Tobacco Co. (1994) 7 Cal. 4th 1057, 1063-1064. Thus, even if the Court

3
zu2900032 MISSION PLACE’S OPPOSITION TO PLAINTIFF’S REQUEST FOR
4019994.1 JUDICIAL NOTICEOo eo NW DH HW fF WN

RBM YW NY NY YW YN YN DY eee Be eB ee Oe
ont AA Bk oN Se BDO Be DDH BR WN =

HAIGHT, BROWN &
BONESTEEL, LLP.

does take judicial notice of the existence of the above “evidence,” the factual matters
stated in the documents cannot be judicially noticed.

Plaintiff also attempts to circumvent the normal evidentiary requirements, such as
authentication, by judicially noticing the Declarations of Michael Alfaro and Anthony Lin,
as well as the exhibits attached thereto. While a court may take judicial notice of a
pleading’s existence in court files, its filing date, or the fact that it contains certain
arguments, the court should not take judicial notice of the substance of two declarations,
and accompanying exhibits, filed in support of entirely different motions, one of which has
not even been heard. See Evid. Code § 452(d). Since this evidence may not be judicially
noticed, and has not been properly authenticated under Evidence Code section 1400 and
1401, this evidence may not be used in support of Plaintiff's Opposition.

IW. CONCLUSION

For the foregoing reasons, Mission Place respectfully requests this Court deny

Plaintiff's Request for Judicial Notice.

Dated: December 10, 2012 STEEL, LLP

en M. Cvil
Zachary W. Shine
Attomeys for Defendants
Mission Place LLC

4

zans.owon MISSION PLACE’S OPPOSITION TO PLAINTIFF’S REQUEST FOR
40199981 JUDICIAL NOTICECo wm NY DH F&F WN

NN YN YN NKR KY KN SF =F RF Se ee Se eR SS
oN KR A F&F HW NF CS ODO OY DH FF WH KF

PROOF OF SERVICE

STATE OF CALIFORNIA )

) SS.
COUNTY OF SAN FRANCISCO)
Beacon Residential Community Association y. Catellus Third and King, LLC, et al.
CGC-08-478453

I am employed in the County of San Francisco, State of California. | am over the
age of 18 and not a party to the within action, My business address is 71 Stevenson Street,
|2 ith Floor, San Francisco, California 94105-2981.

On December 11, 2012, I served the within document(s) described as:

MISSION PLACE LLC'S OPOSITION TO PLAINTIFF’S REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF ITS OPPOSITION TO MISSION PLACE'S
MOTION FOR SUMMARY ACO AOWON ON THE EIGHTH CAUSE OF

on the interested parties in this action as stated on the attached mailing list.

xl (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 11, 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 Fauta|
(Type or print name) (Signqture)

ZU29-0000032
|] 920828.1 1