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

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                                Gordon & Rees LLP
275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

SANDY M. KAPLAN (SBN 095065)
GREGORY T. HANSON (SBN 201395)

GORDON & REES LLP ELECTRONICALLY

275 Battery Street, Suite 2000 FILED
San Francisco, CA 94111 Superior Court of California,
Telephone: (415) 986-5900 County of San Francisco
Facsimile: (415) 986-8054 DEC 12 2012

Attorneys for Defendants ayer of the Cou "

WEBCOR CONSTRUCTION, INC.; WEBCOR BUILDERS, INC; Deputy Clerk
WEBCOR CONSTRUCTION, INC. dba WEBCOR BUILDERS on

its own behalf and erroneously sued as WEBCOR CONSTRUCTION

LP dba WEBCOR BUILDERS

SUPERIOR COURT OF CALIFORNIA - COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY CASE NO. CGC-08-478453

ASSOCIATION,

WEBCOR CONSTRUCTION, INC.;

WEBCOR BUILDERS, INC; WEBCOR
CONSTRUCTION, INC. dba WEBCOR
BUILDERS’ FINAL OBJECTIONS TO

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cs 2
Plaintiff, )
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CATELLUS THIRD AND KING LLC, etal, ) EVIDENCE (SUPERSEDING ANY AND
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VS.

ALL PREVIOUSLY FILED

Defendants. OBJECTIONS TO EVIDENCE)

AND RELATED CROSS-ACTIONS. DATE: August 24, 2012

TIME: 10:00 am
DEPT: — 304
JUDGE: Honorable Richard A. Kramer

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:

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 WEBCOR BUILDERS (collectively,
“WEBCOR”) hereby submits its Final Objections to Evidence (Superseding Any and All
Previously Filed Objections to Evidence) proffered by MISSION PLACE, LLC; MISSION
PLACE MEZZANINE, LLC; MISSION PLACE MEZZ, HOLDINGS, LLC; and MISSION
PLACE PARTNERS, LLC (collectively “MISSION PLACE”) in opposition to Mission Place’s

Motion For Summary Adjudication (“hereinafter, “MSA”). These Objections

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are in place of any and all Objections to Evidence previously drafted and filed by any WEBCOR
attorney.
OBJECTION NO. 1:

WEBCOR objects to the following evidence submitted in support of the MISSION
PLACE MSA:

Attached hereto as Exhibit 19 is a true and correct copy of an e-
mail, and attachment, dated October 26, 2004, from HKS President
Neil Vincent to Tim Carey of Catellus wherein Mr. Vincent
transmitted a revised assignment agreement. Mr. Vincent’s e-mail
was sent to Allen Matkins, who forwarded it to our counsel at
Goodwin Proctor, who then forwarded it to me. (Supplemental
Declaration of John Tashjian. in Support of Mission Place MSA
(hereinafter, “Tash, Supp. Decl.”) at € 4.)

WEBCOR objects on the following grounds:

1) Lack of Personal Knowledge (California Evidence Code (hereinafter, “Evid. Code”)
§702(a)), Improper Authentication of Documents Referenced (Evid. Code §§ 1400 e7 seq.), and
Secondary Evidence Rule (Evid. Code §1521).

Mr. Tashjian, the declarant, lacks personal knowledge to make the subject statement. (See
Evid. Code §702(a).) The only statements made by the declarant regarding his knowledge base

or position with respect to MISSION PLACE are as follows:

Lam an authorized representative of Defendants and Cross-
Complainants Mission Place LLC, Mission Place Mezzanine, LLC,
Mission Place Mezz Holdings, LLC, Mission Place Partners, LLC,
Centurion Real Estate Investors IV, LLC, and Centurion Real
Estate Partners, LLC (sued in its own name and erroneously sued
as Centurion Partners LLC). (Tash. Supp. Decl., 91.) The
following facts are within my personal knowledge, except as
otherwise noted, and as to those facts, | believe them to be true. If
called as a witness, I could and would testify to the facts stated
herein. (Tash. Supp. Decl., 2.)

Mr. Tashjian then goes on to make the statement, herein objected to, in paragraph 4 of his
Supplemental Declaration. However, in examining the e-mail string (attached to Tash. Supp.
Decl. as Exhibit 19), not once does the e-mail address of Mr. Tashjian appear. Further, even if,
as Mr. Tashjian asserts, he was eventually forwarded the e-mail string, it does not establish that

Mr. Tashjian was integral in the negotiation of the terms of the respective purported assignment

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documents, or, that he had any input into drafting any e-mails (or attachments thereto) submitted
as Exhibit 19 which may have affected the content of those documents.

Interestingly, Mr. Tashjian does not declare that he was integral in the negotiation of
terms for the purported assignment documents, let alone involved. Rather, that Declaration
comes from Mr, Shine, whose testimony regarding John Tashjian’s involvement is directly
contradicted by Mr. Tashjian’s own testimony. (See Objection to Evidence No. 6 following.)

No other statements or assertions are included in the Declaration that establish
Mr. Tashjian’s personal knowledge of the general activities of MISSION PLACE, or, MISSION
PLACE’s (or his own) specific activities with respect to the subject terms of the Assignment of
Contractor Agreement (“Assignment”) and/or “Consent and Agreement (“Consent”). He
certainly cannot make a Declaration regarding the authenticity of the subject documents when he
is not even an addressee on the e-mail chain. (Evid. Code §§ 1400 ef seg. and 1521.)

In order to establish personal knowledge, facts must be alleged that show that the
declaration had the opportunity to perceive the matter at issue through exercise of his or her own
senses. (Evid. Code §170.) Mr. Tashjian’s bald assertion of “personal knowledge” is
insufficient to establish personal knowledge without specific facts that actually establish that
Mr. Tashjian had reason to know personally about the details and terms of the purported
assignment documents which are in dispute. (See ibid.; Well & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 1997) §10:106, et seq., pp. 10-43.)

California courts have directly addressed the exact scenario whereby a declarant merely
asserts “personal knowledge” of a contract, without more. (Snider v. Snider (1962) 200
Cal.App.2d 741.) In Snider, the plaintiff's declaration in support of summary adjudication
alleged that the defendants had entered into a contract for plaintiffs benefit. Ud. at 744.) There,
the plaintiff's allegation that he had “personal knowledge” of the contract was not sufficient to
support a motion for summary judgment. (/d. at 749-50; see also Mamou v. Trendwest Resorts,
Inc, (2008) 165 Cal. App. 4th 686, 692, fn. 1 (noting that, when a declaration contained the
“usual recital” that its contents are based upon the declarant’s personal knowledge, “[wJe doubt

that where a basis in personal knowledge does not otherwise appear, such a bald recital can

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satisfy the proponent’s burden to affirmatively demonstrate that the witness is testifying from his
own perception of the events he describes.”).)

Here, Mr. Tashjian clearly stated in his own deposition that he was not personally
involved in the negotiation of the purported assignment documents, and, his name (supporting
his lack of personal knowledge) appears nowhere in the e-mail string submitted as Exhibit 19,
As such, Mr. Tashjian is not qualified to make the statement disputed in § 4 of his Supplemental
Declaration and his statement and documents referred to therein, should be excluded.

2) Lack of Foundation, Lack of Competency (Evid. Code§§ 402 and 403).

Even more to the point, Mr. Tashjian was directly asked in his deposition if he was
“personally involved in negotiating the terms” [of the purported assignment documents],

Mr. Tashjian replied, “No, Jeff [Worthe] was.” (Tash. Depo, Vol. 1, p. 60: 13-15 attached as
Exhibit “G” to the Declaration of Gregory T. Hanson (hereinafter, “Hanson Decl.”). This bald
admission in deposition, under oath, is in direct contradiction to the statements or implications
indicating involvement of Mr. Tashjian in the negotiation of the purported assignment document
terms. As such, there is a lack of foundation and/or competency on the part of Mr. Tashjian, and
as to the documents proffered as Exhibit 19. (Evid. Code§§ 402 and 403.) Consequently, both
the documents and Mr. Tashjian’s testimony regarding the same should be excluded.

3) Hearsay (Evid. Code §§ 1200 et seg.).

Finally, since Mr. Tashjian was not an author or even recipient of the e-mails submitted
as Exhibit 19, to the extent that they are offered into evidence to prove the truth of the matter
asserted, they are hearsay and should be excluded. (See Evid. Code §§ 1200 e7 seq.)
OBJECTION NO. 2:

WEBCOR objects to the following evidence submitted in support of the MISSION
PLACE MSA:

Attached hereto as Exhibit 20 is a true and correct copy of an e-
mail and attachment, dated November 5, 2004, from Kathleen
Blank of Catellus to John Bowles of Webcor. Ms. Blank’s e-mail
references a revised assignment. Mr, Bowles responded to Ms.
Blank’s e-mail on November 8, 2004 with his comments on the
documents. This e-mail was sent to our counsel at Goodwin
Proctor, who forwarded it to me. (Tash, Supp. Deel. at § 5.)

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WEBCOR objects on the following grounds:

1) Lack of Personal Knowledge (Evid. Code §702(a)), Improper Authentication of
Documents Referenced (Evid. Code §§ 1400 et seq.), and Secondary Evidence Rule (Evid. Code
§1521).

Mr. Tashjian, the declarant, lacks personal knowledge to make the subject statement.
(See Evid. Code §702(a).) The only statements made by the declarant regarding his knowledge

base or position with respect to MISSION PLACE are as follows:

Tam an authorized representative of Defendants and Cross-
Complainants Mission Place LLC, Mission Place Mezzanine, LLC,
Mission Place Mezz Holdings, LLC, Mission Place Partners, LLC,
Centurion Real Estate Investors IV, LLC, and Centurion Real
Estate Partners, LLC (sued in its own name and erroneously sued.
as Centurion Partners LLC). (Tash. Supp. Decl, § 1.) The
following facts are within my personal knowledge, except as
otherwise noted, and as to those facts, I believe them to be true. If
called as a witness, | could and would testify to the facts stated
herein. (Tash. Supp. Decl., § 2.)

Mr. Tashjian then goes on to make the statement, herein objected to, in paragraph 5 of his
Supplemental Declaration. However, in examining the e-mail string (attached to Tash. Supp.
Decl. as Exhibit 20), not once does the e-mail address of Mr. Tashjian appear. Further, even if,
as Mr. Tashjian asserts, he was eventually forwarded the e-mail string, it does not establish that
Mr. Tashjian was integral in the negotiation of the terms of the respective purported assignment
documents, or, that he had any input into drafting any e-mails (or attachments thereto) submitted
as Exhibit 20 which may have affected the content of those documents.

Interestingly, Mr. Tashjian does not declare that he was integral in the negotiation of
terms for the purported assignment documents, let alone involved. Rather, that Declaration
comes from Mr, Shine, whose testimony regarding John Tashjian’s involvement is directly
contradicted by Mr. Tashjian’s own testimony. (See Objection to Evidence No. 6 following.)

No other statements or assertions are included in the Declaration that establish
Mr, Tashjian’s personal knowledge of the general activities of MISSION PLACE, or, MISSION
PLACE’s (or his own) specific activities with respect to the subject terms of the Assignment of

Contractor Agreement (“Assignment”) and/or “Consent and Agreement (“Consent”). He

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275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

certainly cannot make a Declaration regarding the authenticity of the subject documents when he
is not even an addressee on the e-mail chain. (Evid. Code §§ 1400 ef seg. and 1521.)

In order to establish personal knowledge, facts must be alleged that show that the
declarant had the opportunity to perceive the matter at issue through exercise of his or her own
senses. (Evid. Code §170.) Mr. Tashjian’s bald assertion of “personal knowledge” is
insufficient to establish personal knowledge without specific facts that actually establish that
Mr. Tashjian had reason to know personally about the details and terms of the purported
assignment documents which are in dispute. (See ibid.; Well & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 1997) §10:106, e¢ seq., pp. 10-43.)

California courts have directly addressed the exact scenario whereby a declarant merely
asserts “personal knowledge” of a contract, without more. (Snider v. Snider (1962) 200 Cal.
App. 2d 741.) In Snider, the plaintiffs declaration in support of summary adjudication alleged
that the defendants had entered into a contract for plaintiffs benefit. (/d. at 744.) There, the
plaintiff's allegation that he had “personal knowledge” of the contract was not sufficient to
support a motion for summary judgment. (Ud. at 749-50; see also Mamou v. Trendwest Resorts,
Inc. (2008) 165 Cal. App. 4th 686, 692, fh. 1 (noting that, when a declaration contained the
“usual recital” that its contents are based upon the declarant’s personal knowledge, “[w]e doubt
that where a basis in personal knowledge does not otherwise appear, such a bald recital can
satisfy the proponent’s burden to affirmatively demonstrate that the witness is testifying from his
own perception of the events he describes.”).)

Here, Mr. Tashjian clearly stated in his own deposition that he was not personally
involved in the negotiation of the purported assignment documents, and, his name (supporting
his lack of personal knowledge) appears nowhere in the e-mail string submitted as Exhibit 20.
As such, Mr. Tashjian is not qualified to make the statement disputed in § 4 of his Supplemental
Declaration and his statement and documents referred to therein, should be excluded.

2) Lack of Foundation, Lack of Competency (Evid. Code§§ 402 and 403),

Even more to the point, Mr. Tashjian was directly asked in his deposition if he was

“personally involved in negotiating the terms” [of the purported assignment documents],

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275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Mr. Tashjian replied, “No, Jeff [Worthe] was.” (Tash. Depo, Vol. 1, p. 60: 13-15 attached as
Exhibit “G” to Hanson Decl.) This bald admission in deposition, under oath, is in direct
contradiction to the statements or implications indicating involvement of Mr. Tashjian in the
negotiation of the purported assignment document terms. As such, there is a lack of foundation.
and/or competency on the part of Mr. Tashjian, and as to the documents proffered as Exhibit 20,
(Evid. Code §§ 402 and 403.) Consequently, both the documents and Mr. Tashjian’s testimony
regarding the same should be excluded.

3) Hearsay (Evid. Code $§ 1200 et seq.).

Finally, since Mr. Tashjian was not an author or even recipient of the e-mails submitted
as Exhibit 20, to the extent that they are offered into evidence to prove the truth of the matter
asserted, they are hearsay and should be excluded. (See Evid. Code §§ 1200 et seg.)
OBJECTION NO. 3:

WEBCOR objects to the following evidence submitted in support of the MISSION
PLACE MSA:

[Those arguments reveal a fundamental misunderstanding of the
nature of the Consents. The Consents start with the language that
both HKS and Webcor were consenting to the “foregoing
assignment” and agreeing to “perform pursuant to its Contract for
services.” There is no language in the respective Consents that
would limit that performance obligation.”] (Supp. Tash. Decl.,

18)

WEBCOR objects on the following grounds:

1) Lack of Personal Knowledge (Evid. Code §702(a)), Lack of Foundation (Evid.
Code§§ 402 and 403), Irrelevant and Immaterial (Evid. Code §§210, 350), and Legal Conclusion
(Evid. Code §§ 720, 800).

Mr. Tashjian, the declarant, lacks personal knowledge to make the subject statement.
(See Evid. Code §702(a).) The only statements made by the declarant regarding his knowledge
base or position with respect to MISSION PLACE are as follows:

1am an authorized representative of Defendants and Cross-
Complainants Mission Place LLC, Mission Place Mezzanine, LLC,
Mission Place Mezz Holdings, LLC, Mission Place Partners, LLC,

Centurion Real Estate Investors IV, LLC, and Centurion Real
Estate Partners, LLC (sued in its own name and erroneously sued

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as Centurion Partners LLC). (Tash. Supp. Decl., 91.) The
following facts are within my personal knowledge, except as
otherwise noted, and as to those facts, I believe them to be true. If
called as a witness, I could and would testify to the facts stated
herein. (Tash. Supp. Decl., § 2.)

Mr. Tashjian then goes on to make the statement, herein objected to, in paragraph 8 of his
Supplemental Declaration. The statement at issue lacks foundation on several levels. While
Mr. Tashjian may have signed the document as a matter of convenience, he has utterly failed to
establish that he was an integral part of negotiating the terms of the Webcor Consent referred to
in his statement. Nevertheless he then goes on to give his interpretation of the terms of said
document, after the fact. Consequently, his interpretation is both irrelevant and immaterial
(Evid. Code §§210, 350.)

Nowhere does Mr. Tashjian declare that he was instrumental in the negotiation of terms
for this purported assignment document, let alone involved (because he cannot). Rather, that
Declaration comes from Mr. Shine, whose testimony regarding John Tashjian’s involvement is
directly contradicted by Mr. Tashjian’s own testimony. As such, Mr. Shine’s statement must
likewise be excluded. (See Objection to Evidence No. 6 following.)

No other statements or assertions are included in the Declaration that establish
Mr. Tashjian’s personal knowledge of the general activities of MISSION PLACE, or, MISSION
PLACE’s (or his own) specific activities with respect to the subject terms of the Assignment of
Contractor Agreement (“Assignment”) and/or “Consent and Agreement (“Consent”) referenced
herein.

In order to establish personal knowledge, facts must be alleged that show that the
declarant had the opportunity to perceive the matter at issue through exercise of his or her own
senses. (Evid. Code §170.) Mr. Tashjian’s bald assertion of “personal knowledge” is
insufficient to establish personal knowledge without specific facts that actually establish that
Mr. Tashjian had reason to know personally about the details and terms of the purported
assignment documents which are in dispute. (See ibid.; Well & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 1997) 410: 106, ef seq., pp. 10-43.)
if

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California courts have directly addressed the exact scenario whereby a declarant merely
asserts “personal knowledge” of a contract, without more. (Snider v. Snider (1962) 200
Cal.App.2d 741.) In Snider, the plaintiff’s declaration in support of summary adjudication
alleged that the defendants had entered into a contract for plaintiff's benefit. Ud. at 744.) There,
the plaintiffs allegation that he had “personal knowledge” of the contract was not sufficient to
support a motion for summary judgment. (Ud. at 749-50; see also Mamou v. Trendwest Resorts,
Inc. (2008) 165 Cal. App. 4th 686, 692, fn. 1 (noting that, when a declaration contained the
“usual recital” that its contents are based upon the declarant’s personal knowledge, “[w]e doubt
that where a basis in personal knowledge does not otherwise appear, such a bald recital can
satisfy the proponent’s burden to affirmatively demonstrate that the witness is testifying from his
own perception of the events he describes.”).)

Here, Mr. Tashjian clearly stated in his own deposition that he was not personally
involved in the negotiation of the purported assignment documents (see Tash. Depo., Vol. 1,
attached as Exhibit “G” to Hanson Decl., at p. 60:13-15), and, his discussion regarding the
documents, and/or reading them after the fact does not establish his ability to interpret their terms
from a legal perspective. As such, Mr. Tashjian is not qualified to make the statement disputed
in { 8 of his Supplemental Declaration. The subject statement should thus be excluded as
Mr. Tashjian is a lay person attempting to make a legal conclusion. (See Evid. Code §§ 720,
800.)

2) Lack of Foundation and Lack of Competency (Evid. Code§§ 402 and 403).

Mr. Tashjian was directly asked in his deposition if he was “personally involved in
negotiating the terms” [of the purported assignment documents], Mr. Tashjian replied, “No, Jeff
[Worthe] was.” (Tash. Depo, Vol. 1, p. 60: 13-15 attached as Exhibit “G” to Hanson Decl.)
This bald admission in deposition, under oath, is in direct contradiction to the statements or
implications indicating involvement of Mr. Tashjian in the negotiation of the purported
assignment document terms, As such, there is a lack of foundation and/or competency on the
part of Mr. Tashjian to submit evidence as to his interpretation of the purported assignment

documents. (Evid. Code §§ 402 and 403.)

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3) Hearsay (Evid. Code §§ 1200 er seq.).

Finally, Mr, Tashjian was not an author of either of the purported assignment documents,
and, to the extent his statement in § 8 of his Declaration is submitted to prove the truth of the
matter asserted in those documents, it is hearsay and should be excluded. (Evid. Code §§ 1200
ef seq.)

OBJECTION NO. 4:

WEBCOR objects to the following evidence submitted in support of the MISSION

PLACE MSA:

[“The second paragraph of the Consents are designed as
“estoppels” certifying that certain statements of fact are correct. I
know this based upon my recollection of participating in “all hands
calls” between the buyer and seller and reviewing the seller’s
response to questions asked by Mission Place LLC during its due
diligence. A true and correct copy of September 14, 2004 email
and attachment from seller's counsel is attached hereto as Exhibit
18. This email was forwarded to me by our attorneys at Goodwin
Proctor and the discussion of the HKS and Webcor contracts uses
the word “estoppels” to deseribe the representations that these
entities would need to make.”] (Supp. Tash. Decl., § 9.)

WEBCOR objects on the following grounds:

1) Lack of Personal Knowledge (Evid. Code §§ 170 and 702(a)), Lack of Foundation
(Evid. Code§§ 402 and 403), Irrelevant and Immaterial (Evid. Code §§210, 350), and Legal
Conclusion (Evid. Code §§ 720, 800).

Mr. Tashjian, the declarant, lacks personal knowledge to make the subject statement.
(See Evid. Code §702(a).) The only statements made by the declarant regarding his knowledge
base or position with respect to MISSION PLACE are as follows:

1am an authorized representative of Defendants and Cross-
Complainants Mission Place LLC, Mission Place Mezzanine, LLC,
Mission Place Mezz Holdings, LLC, Mission Place Partners, LLC,
Centurion Real Estate Investors [V, LLC, and Centurion Real
Estate Partners, LLC (sued in its own name and erroneously sued
as Centurion Partners LLC). (Tash. Supp. Decl., 1.) The
following facts are within my personal knowledge, except as
otherwise noted, and as to those facts, I believe them to be true. If
called as a witness, 1 could and would testify to the facts stated
herein. (Tash. Supp. Decl., § 2.)

Mt

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Mr. Tashjian then goes on to make the statement, herein objected to, in paragraph 9 of his
Supplemental Declaration, The statement at issue lacks foundation on several levels. While
Mr. Tashjian may have been on “all hands calls,” by his own admission, those calls dealt with
“reviewing the seller’s response to questions asked by Mission Place LLC during its due
diligence.” He makes no connection between the alleged “estoppels,” and the subject of his
discussions on the “all hands call,” but for relying on Exhibit 18. However, Mr. Tashjian does
not declare that he drafted Exhibit 18, and despite his assertion, that the e-mail was forwarded to
him, his name appears nowhere in the subject documents’ e-mail addresses. Why, one must ask,
does Mr. Tashjian not provide the e-mails that were forwarded to him? The obvious answer is,
that they do not exist. He has utterly failed to establish that he was an integral part of negotiating
the terms of the Webcor Consent referred to in his statement. Nevertheless he then goes on to
give his interpretation of the terms of said document, after the fact. Consequently, his
interpretation is both irrelevant and immaterial.

Nowhere does Mr. Tashjian declare that he was instrumental in the negotiation of terms
for this purported assignment document, let alone involved (because he cannot). He merely
references being on “all hands calls” with no further explanation. Rather, the Declaration
regarding Mr. Tashjian’s involvement comes from Mr. Shine, whose testimony regarding John
Tashjian’s involvement is directly contradicted by Mr. Tashjian’s own testimony. As such,

Mr. Shine’s statement must likewise be excluded. (See Objection to Evidence No. 6 following.)

No other statements or assertions are included in the Declaration that establish
Mr. Tashjian’s personal knowledge of the general activities of MISSION PLACE, or, MISSION
PLACE’s (or his own) specific activities with respect to the subject terms of the Assignment of
Contractor Agreement (“Assignment”) and/or “Consent and Agreement (“Consent”) referenced
herein.

In order to establish personal knowledge, facts must be alleged that show that the
declarant had the opportunity to perceive the matter at issue through exercise of his or her own
senses. (Evid. Code §170.) Mr. Tashjian’s bald assertion of “personal knowledge” is

insufficient to establish personal knowledge without specific facts that actually establish that

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275 Battery Street, Suite 2000

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2 won

Mr. Tashjian had reason to know personally about the details and terms of the purported
assignment documents which are in dispute. (See ibid.; Well & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 1997) §10:106, e¢ seg., pp. 10-43.)

California courts have directly addressed the exact scenario whereby a declarant merely
asserts “personal knowledge” of a contract, without more. (Snider v. Snider (1962) 200
Cal.App.2d 741.) In Snider, the plaintiff’s declaration in support of summary adjudication
alleged that the defendants had entered into a contract for plaintiff's benefit. Ud. at 744.) There,
the plaintiffs allegation that he had “personal knowledge” of the contract was not sufficient to
support a motion for summary judgment. (Ud. at 749-50; see also Mamou v. Trendwest Resorts,
Inc. (2008) 165 Cal. App. 4th 686, 692, fn. 1 (noting that, when a declaration contained the
“usual recital” that its contents are based upon the declarant’s personal knowledge, “[w]e doubt
that where a basis in personal knowledge does not otherwise appear, such a bald recital can
satisfy the proponent’s burden to affirmatively demonstrate that the witness is testifying from his
own perception of the events he describes.”).)

Here, Mr. Tashjian clearly stated in his own deposition that he was not personally
involved in the negotiation of the purported assignment documents (see Tash. Depo., Vol. 1,
attached as Exhibit “G” to Hanson Decl., at p. 60:13-15), and, his discussion regarding the
documents, and/or reading them after the fact does not establish his ability to interpret their terms
from a legal perspective. As such, Mr. Tashjian is not qualified to make the statement disputed
in { 9 of his Supplemental Declaration. The subject statement, as well as Exhibit 18 should thus
be excluded. as Mr. Tashjian is a lay person attempting to make a legal conclusion.

2) Lack of Foundation, Lack of Competency (Evid. Code§§ 402 and 403).

Mr. Tashjian was directly asked in his deposition if he was “personally involved in
negotiating the terms” [of the purported assignment documents]. Mr. Tashjian replied, “No, Jeff
[Worthe] was.” (Tash. Depo., Vol. 1, p. 60: 13-15 attached as Exhibit “G” to Hanson Decl.)
This bald admission in deposition, under oath, is in direct contradiction to the statements or
implications indicating involvement of Mr. Tashjian in the negotiation of the purported

assignment document terms. As such, there is a lack of foundation and/or competency on the

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part of Mr. Tashjian to submit evidence as to his interpretation of the purported assignment
documents. (Evid. Code §§ 402 and 403.)

3) Hearsay (Evid. Code $§ 1200 et seq.).

Finally, Mr. Tashjian does not declare that he was the author of either of the purported
assignment documents, nor does he assert that he was the author of the document attached in
Exhibit 18. The e-mails to which the document is attached, on their face, do not include
Mr. Tashjian as an addressee. Therefore, to the extent his statement in § 9 of his Declaration,

and or Exhibit 18 referred to therein, is submitted to prove the truth of the matter asserted in

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those documents, it is hearsay and should be excluded. (See Evid. Code §§ 1200 et seq.)

OBJECTION NO. 5:

WEBCOR objects to the following evidence submitted in support of the MISSION

PLACE MSA:

[The second paragraph of the Consent starts with the language”
Architect represents to Mission Place. . .” or “Contractor represents
to Mission Place. . .” The representations that were made thereafter
were crucial elements of the transaction for Mission Place in that
Mission Place had to be certain that both HKS and Webcor were in
agreement that their respective contracts were valid and
enforceable (see, (i) and (ii); and that there were no additional
changes to be paid except for those identified (see, iii)); and that
the project was substantially constructed in accordance with the
contract documents (see, vi); and there were no uncured defects
(see, ix); that all project documents shall be the property of
Mission Place as successor (see, xi); and that Architect and
Contractor had assigned to owner as guaranties and warranties
relating to the project (see, xii), among others. For HKS and
Webcor to argue that these representations are somehow
“limitations” ignores the actual wording of the document.”(Supp.
Tash. Decl., § 10.)

WEBCOR objects on the following grounds:

1) Lack of Personal Knowledge (Evid. Code §702(a)), Lack of Foundation (Evid.

Code§§ 402 and 403), Irrelevant and Immaterial (Evid. Code §§210, 350), and Legal Conclusion

(Evid. Code §§ 720, 800).

Mt
Mt

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Mr. Tashjian, the declarant, lacks personal knowledge to make the subject statement.
(See Evid. Code §702(a).) The only statements made by the declarant regarding his knowledge

base or position with respect to MISSION PLACE are as follows:

lam an authorized representative of Defendants and Cross-
Complainants Mission Place LLC, Mission Place Mezzanine, LLC,
Mission Place Mezz Holdings, LLC, Mission Place Partners, LLC,
Centurion Real Estate Investors IV, LLC, and Centurion Real
Estate Partners, LLC (sued in its own name and erroneously sued
as Centurion Partners LLC). (Tash. Supp. Decl., 1.) The
following facts are within my personal knowledge, except as
otherwise noted, and as to those facts, | believe them to be true. If
called as a witness, I could and would testify to the facts stated
herein. (Tash. Supp. Decl., § 2.)

Mr. Tashjian then goes on to make the statement, herein objected to, in paragraph 10 of
his Supplemental Declaration. The statement at issue lacks foundation on several levels. While
Mr. Tashjian may have signed the document as a matter of convenience, he has utterly failed to
establish that he was an integral part of negotiating the terms of the Webcor Consent referred to
in his statement. Nevertheless he then goes on to give his interpretation of the terms of said
document, after the fact. Consequently, his interpretation is both irrelevant and immaterial.

Nowhere does Mr. Tashjian declare that he was instrumental in the negotiation of terms
for this purported assignment document, let alone involved (because he cannot). Curiously, that
Declaration comes from Mr. Shine, whose testimony regarding John Tashjian’s involvement is
directly contradicted by Mr. Tashjian’s own testimony. As such, Mr. Shine’s statement must
likewise be excluded. (See Objection to Evidence No.6 following.)

No other statements or assertions are included in the Declaration that establish
Mr. Tashjian’s personal knowledge of the general activities of MISSION PLACE, or, MISSION
PLACE’s (or his own) specific activities with respect to the subject terms of the Assignment of
Contractor Agreement (“Assignment”) and/or “Consent and Agreement (“Consent”) referenced
herein.

In order to establish personal knowledge, facts must be alleged that show that the
declarant had the opportunity to perceive the matter at issue through exercise of his or her own

senses. (Evid. Code §170.) Mr. Tashjian’s bald assertion of “personal knowledge” is insufficient

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San Francisco, CA 94111

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to establish personal knowledge without specific facts that actually establish that Mr. Tashjian
had reason to know personally about the details and terms of the purported assignment
documents which are in dispute. (See ibid.; Well & Brown, Cal. Practice Guide: Civil Procedure
Before Trial (The Rutter Group 1997) €10:106, et seq., pp. 10-43.)

California courts have directly addressed the exact scenario whereby a declarant merely
asserts “personal knowledge” of a contract, without more. (Snider v. Snider (1962) 200
Cal. App.2d 741.) In Snider, the plaintiff's declaration in support of summary adjudication
alleged that the defendants had entered into a contract for plaintiff's benefit. (/d. at 744.) There,
the plaintiff's allegation that he had “personal knowledge” of the contract was not sufficient to
support a motion for summary judgment. (Ud. at 749-50; see also Mamou v. Trendwest Resorts,
Ine, (2008) 165 Cal. App. 4th 686, 692, fi. 1 (noting that, when a declaration contained the
“usual recital” that its contents are based upon the declarant’s personal knowledge, “[w]e doubt
that where a basis in personal knowledge does not otherwise appear, such a bald recital can
satisfy the proponent’s burden to affirmatively demonstrate that the witness is testifying from his
own perception of the events he describes.”).)

Here, Mr. Tashjian clearly stated in his own deposition that he was not personally
involved in the negotiation of the purported assignment documents (see Tash. Depo., Vol. 1,
attached as Exhibit “G” to Hanson Decl., at p. 60: 13-15), and, his discussion regarding the
documents, and/or reading them after the fact does not establish his ability to interpret their terms
from a legal perspective. Additionally, Mr. Tashjian’s recital of the purported agreement
language does nothing to bolster his conclusory statement. As such, Mr. Tashjian is not qualified
to make the statement disputed in € 10 of his Supplemental Declaration. The subject statement,
should thus be excluded. as Mr. Tashjian is a lay person attempting to make a legal conclusion.

2) Lack of Foundation, Lack of Competency (Evid. Code§§ 402 and 403).

Mr. Tashjian was directly asked in his deposition if he was “personally involved in
negotiating the terms” {of the purported assignment documents], Mr. Tashjian replied, “No, Jeff
[Worthe] was.” (Tash. Depo, Vol. 1, p. 60: 13-15 attached as Exhibit “G” to Hanson Decl.)

This bald admission in deposition, under oath, is in direct contradiction to the statements or

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275 Battery Street, Suite 2000

San Francisco, CA 94111

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implications indicating involvement of Mr. Tashjian in the negotiation of the purported
assignment document terms. As such, there is a lack of foundation and/or competency on the
part of Mr. Tashjian to submit evidence as to his interpretation of the purported assignment
documents. (Evid. Code §§ 402 and 403.)

3) Hearsay (Evid. Code §§ 1200 et seq.).

Finally, Mr. Tashjian does not declare that he was the author of either of the purported
assignment documents. Therefore, to the extent his statement in 4 10 of his Declaration, is
submitted to prove the truth of the matter asserted in those documents, it is hearsay and should be
excluded. (See Evid. Code §§ 1200 et seg.)

OBJECTION NO. 6:

WEBCOR objects to the following evidence submitted in support of the MISSION

PLACE MSA:

John Tashjian, was deposed in this action on April 27, 2011, and
April 24, 2012 as Mission Place’s Person Most Knowledgeable.
Mr Tashjian was involved in the negotiation and execution of the
Assignment of Contractor Agreement, the Assignment of Architect
Agreement, and the Consent and Agreements thereto. (Declaration
of Zachary W. Shine In Support of Mission Place’s MSA
(hereinafter, “Shine Decl.”), § 6).

WEBCOR objects on the following grounds:

1) Lack of Personal Knowledge (Evid. Code §§ 170, 702(a)), and Secondary Evidence
Rule (Evid. Code §1521).

While WEBCOR does not dispute that Mr. Tashjian was deposed, we strongly dispute
the rest of the proffered statement.

Mr. Shine, the declarant, lacks personal knowledge to make the subject statement. (See
Evid. Code §702(a).) The only statements made by the declarant regarding his knowledge base
or position with respect to MISSION PLACE are that he is an attorney for the Mission Place
entities (Shine Decl., § 2), and:

Thave personal knowledge of the facts set forth in this Declaration

and, if called as a witness, I could and would testify competently
to such facts under oath... (Shine Decl., 4 3.)

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Mr. Shine then goes on to make the statement, herein objected to, in paragraph 6 of his
Declaration. Mr. Shine does not assert that HE was involved in the negotiation of terms for the
assignment documents, and asserts no underlying factual basis for stating that Mr. Tashjian was.

No other statements or assertions are included in the Shine Declaration that establish
Mr. Shine’s personal knowledge of Mr. Tashjian’s personal involvement in the negotiation,
respecting the subject terms of the Assignment of Contractor Agreement (“Assignment”) and/or
“Consent and Agreement (“Consent”). He certainly cannot make a Declaration regarding
Mr. Tashjian’s involvement when Mr. Tashjian has not made that declaration himself. (Evid.
Code § 1521.)

In order to establish personal knowledge, facts must be alleged that show that the
declarant had the opportunity to perceive the matter at issue through exercise of his or her own
senses. (Evid. Code §170.) Mr. Shine’s bald assertion of “personal knowledge” is insufficient to
establish personal knowledge, without specific facts that actually establish that Mr. Shine had
reason to know personally about the details and terms of Mr. Tashjian’s “involvement in the
negotiation of the assignment documents.” (See ibid.; Well & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 1997) 910:106, et seq., pp. 10-43.)

California courts have directly addressed the exact scenario whereby a declarant merely
asserts “personal knowledge” of a contract, without more. (Snider v. Snider (1962) 200
Cal.App.2d 741.) In Snider, the plaintiff's declaration in support of summary adjudication
alleged that the defendants had entered into a contract for plaintiff's benefit. (/d. at 744.) There,
the plaintiff’s allegation that he had “personal knowledge” of the contract was not sufficient to
support a motion for summary judgment. (/d. at 749-50; see also Mamou v. Trendwest Resorts,
Inc. (2008) 165 Cal. App. 4th 686, 692, fn, 1 (noting that, when a declaration contained the
“usual recital” that its contents are based upon the declarant’s personal knowledge, “[wJe doubt
that where a basis in personal knowledge does not otherwise appear, such a bald recital can
satisfy the proponent’s burden to affirmatively demonstrate that the witness is testifying from his
own perception of the events he describes.”).)

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WEBCOR’S OBJECTIONS TO EVIDENCEGordon & Rees LLP
275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

In the instant matter, Mr. Shine is not making a Declaration based upon his own personal
perceptions, but rather the alleged perceptions and/or actions of Mr, Tashjian.

As such, Mr. Shine’s statement in Paragraph 6 of his Declaration must be excluded.

2) Lack of Foundation, Lack of Competency (Evid. Code§§ 402 and 403).

Even more to the point, Mr, Tashjian was directly asked in his deposition if he was
personally involved in negotiating the terms [of the assignment documents], Mr. Tashjian
replied, “No, Jeff [Worthe] was.” (Tash. Depo, Vol. 1, p. 60: 13-15 attached as Exhibit “G” to
Hanson Decl.) This bald admission in deposition, under oath, is in direct contradiction to the
statement of Mr. Shine in his Declaration. As such, there is a lack of foundation and/or
competency on the part of Mr. Shine, and his statement should be excluded. (Evid. Code §§ 402
and 403.)

3) Hearsay (Evid. Code §§ 1200 et seq.).

Finally, to the extent that Mr. Shine is making the declaration that Mr. Tashjian was
“involved in” the negotiation of the assignment documents, based on anything other than
Mr. Shine’s personal knowledge (which he cannot have since Mr. Tashjian testified that he,
himself, was not personally involved in the negotiation of the documents), Mr. Shine’s assertion
cannot be admitted into evidence to prove the truth of the matter asserted. Said declaration is
hearsay and should be excluded. (Evid. Code §§ 1200 et seq.)

This Court should ask why an attorney for Mission Place is making a Declaration that
Mr. Tashjian was “involved in” (a vague and ambiguous term at best) the negotiation of the
assignment documents, when Mr. Tashjian would be the best source for this statement. The
answer is clear. Mr. Tashjian cannot make that Declaration because his deposition testimony
directly contradicts said statement.

OBJECTION 7:

WEBCOR objects to the following evidence submitted in support of the MISSION

PLACE MSA:

(Mission Place Supplemental MPA’s at pp. 7: 5— 8: 14. *Please
note that a purported e-mail is “cut and pasted” in said MPA’s and
as such, this Court is referred to the actual document rather than
having its recitation included here.)

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WEBCOR objects on the following grounds:

1) Lack of Personal Knowledge (Evid. Code §§ 170, 702(a)), Improper Authentication of
Documents Referenced (Evid. Code §§ 1400 et seq.), Secondary Evidence Rule (Evid. Code
§1521).

Mr. Cvyitanovic, in his Memorandum of Points and Authorities is certainly free to make
whatever arguments he likes, however, he cannot base those arguments on the “evidence”
proffered, namely, the purported e-mail involving John Bowles which are cut and pasted into
said MPA’s. Mr. Cvitanovic lacks personal knowledge as to these alleged e-mails. (See Evid.
Code §702(a).) While Mr. Cvitanovic is now representing Mission Place since the filing of
plaintiffs’ suit, he was not representing Mission Place at the time of alleged creation of subject e-
mails and/or attachments thereto.

Mr. Cvitanovic relies on the e-mails in question, however, in examining the e-mail string
cut and pasted into the Mission Place MPA’s not once does the e-mail address of Mr. Cvitanovic
or Mr. Tashjian appear. Further, attaching the e-mails to the MPA’s does not substantiate
Mr. Cvitanovic’s assertions, since Mr. Cvitanovic was clearly not involved in the purported
assignment process, and therefore, not integral in the negotiation of the terms of the respective
purported assignment documents (or attachments thereto),

Mr. Cvitanovic does not and cannot declare that he was integral in the negotiation of
terms for the purported assignment documents, let alone involved, because in fact, he was not.

No other statements or assertions are included in the MPA’s that establish
Mr. Cvitanovic’s personal knowledge of the general activities of MISSION PLACE, or,
MISSION PLACE’s (or his own) specific activities with respect to the subject terms of the
Assignment of Contractor Agreement (“Assignment”) and/or “Consent and Agreement
(“Consent”). He certainly cannot make a Declaration regarding the authenticity of the subject
documents when he is not an addressee on the e-mail chain and was not even associated with
Mission Place at the time. (Evid. Code §§ 1400 ef seg. and 1521.)

In order to establish personal knowledge, facts must be alleged that show that the

declarant had the opportunity to perceive the matter at issue through exercise of his or her own

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senses. (Evid. Code §170.) Even if Mr. Cvitanovic were to make the assertion of “personal
knowledge” that alone is insufficient to establish personal knowledge without specific facts that
actually establish that Mr. Cvitanovic had reason to know personally about the details and terms
of the purported purported e-mails which are in dispute. (See ibid.; Well & Brown, Cal. Practice
Guide: Civil Procedure Before Trial (The Rutter Group 1997) 410:106, ef seq., pp. 10-43.)

California courts have directly addressed the exact scenario whereby a declarant merely
asserts “personal knowledge” of a contract, without more. (Snider v. Snider (1962) 200
Cal.App.2d 741.) In Snider, the plaintiffs declaration in support of summary adjudication
alleged that the defendants had entered into a contract for plaintiff's benefit. Ud. at 744.) There,
the plaintiff's allegation that he had “personal knowledge” of the contract was not sufficient to
support a motion for summary judgment. (/d. at 749-50; see also Mamou v. Trendwest Resorts,
Inc. (2008) 165 Cal. App. 4th 686, 692, fh. 1 (noting that, when a declaration contained the
“usual recital” that its contents are based upon the declarant’s personal knowledge, “[w]e doubt
that where a basis in personal knowledge does not otherwise appear, such a bald recital can
satisfy the proponent’s burden to affirmatively demonstrate that the witness is testifying from his
own perception of the events he describes.”).}

Here, Mr. Cvitanovic lacks any basis for asserting his perceptions. As such,

Mr. Cvitanovic is not qualified to testify regarding the redacted e-mails in the Mission Place
MPA’s. As such any and all references to the alleged e-mails, any arguments based on the
alleged e-mails, and the e-mails referred to in the Mission Place MPA’s, should be excluded.

2) Lack of Foundation and Lack of Competency (Evid. Code§§ 402 and 403).

Per the discussion above in paragraph I, there is a complete lack of foundation and/or
competency on the part of Mr. Cvitanovic to either comment upon, or introduce into evidence
the alleged e-mails. (Evid. Code §§ 402 and 403.) Consequently, both the documents and
Mr. Cvitanovic’s arguments which rely upon the same should be excluded.

Me
df
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WEBCOR’S OBJECTIONS TO EVIDENCE1 3) Hearsay (Evid. Code §§ 1200 et seq.).
2 Finally, since Mr. Cvitanovic was not an author or even recipient of the e-mails submitted
3 || in the Mission Place MPA’s, to the extent that they are offered into evidence to prove the truth of
4 || the matter asserted, they are hearsay and should be excluded. (See Evid. Code §§ 1200 et seq.)
5
6 || DATED: December 12, 2012
7 GORDON & REES LLP
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