Party Statement: BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al

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                                KATZOFF & RIGGS

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ANN RANKIN (SBN 83690)
TERRY WILKENS (SBN 118469)
Law Offices of Ann Rankin

3911 Harrison Street

Oakland, CA 94611

Tel.: (510) 653-8886

Fax: (510) 653-8889

KENNETH 8S. KATZOFF (SBN 103490)
ROBERT R. RIGGS (SBN 107684)
SUNG E. SHIM (SBN 184247)

Katzoff & Riggs LLP

1500 Park Ave #300

Emeryville, CA 94608

Tel: (510) 597-1990

Fax: (510) 597-0295

Attorneys for Plaintiff BEACON
RESIDENTIAL COMMUNITY
ASSOCIATION

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

DEC 03 2012

Clerk of the Court
BY: JUANITA MURPHY
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

CITY AND COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL
COMMUNITY ASSOCIATION,

Plaintiff,

vs.

CATELLUS THIRD AND KING LLC,
etal.,

Defendants.

Le SSS SS

Case No. CGC 08-478453

SEPARATE STATEMENT OF
MATERIAL FACTS IN OPPOSITION
TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION
PLACE, LLC

Date: Dec. 14, 2012

Time: 10:00 a.m.

Dept.: 304

Judge: Hon. Richard A. Kramer

Trial Date: Feb. 4, 2013

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SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

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Plaintiff Beacon Residential Community Association hereby provides its Separate
Statement of Material Facts in Opposition to Motion for Summary Adjudication of
Mission Place, LLC (“Mission Place”) as to Plaintiff's Eight Cause of Action for
Concealment as follows:

ISSUE t — EIGHTH CAUSE OF ACTION FOR CONCEALMENT

Mission Place’s Undisputed Material Plaintiff’s Response and Supporting
Facts and Supporting Evidence vidence

1. In or about December 2004, Mission 1. Undisputed.
Place purchased the Beacon Residential
Community development located at 250
King Street and 260 King Street in San
Francisco, California (hereinafter “the
Project”) from co-defendant Third and
King Investors, LLC. Mission Place,
LLC then proceeded to seil the
individual condominium units to the
public. See Plaintiff’s Third Amended
Complaint filed on April 27, 2011
CTAC”), 4 1, 43, and 116-121,
attached as Exhibit A to the Declaration
of Zachary W. Shine (“Shine
Declaration”), § 4.

2. On April 27, 2011, Plaintiff, the 2. Undisputed.
Beacon Residential Community
Association (which is composed of the
Unit Owners), filed its Third Amended
Complaint (hereinafter “TAC”) seeking
damages for alleged defects discovered
in 595 condominium units and common
areas within the Project. See generally
TAC, attached as Exhibit A to the Shine
Declaration, { 4.map (“the Map”) that
identifies the three Units of the Property
as: a) Unit 201 on the second floor
(Unit 201”); b) Unit 301 on the third

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SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

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Mission Place’s Undisputed Material
Facts and Supporting Evidence

floor (“Unit 301”); and c) Unit 401 on
the fourth floor (“Unit 401,”), with the
garage on the first floor of the Property.

3. Plaintiff's Eighth Cause of Action for
concealment contends Mission Place
failed to reveal and suppressed material
facts relating to alleged overheating
conditions at the project of which
Mission Place was aware. See TAC §
118, attached as Exhibit A to Shine
Declaration, 4.

4. Before the Unit Owners purchased
their respective units, Mission Place
provided them with a “disclosure
statement” stating as follows:

Unit Temperature: Heat Abatement. The
Units do not contain air conditioners,
and the design of the Condominium
Project does not permit the incorporation
of air conditioning facilities in the Units.
Certain Units at the Project
(particularly Units with south- and
west- facing windows) may become
uncomfortably warm when exposed to
sunny conditions and/or hot and/or hot
weather. Buyers may elect to open the
windows in their Units to promote air
circulation when appropriate. In
addition, Buyers may elect to take
additional temperature and air
circulation management measures, such
as installation of ceiling fans to promote
air flow and installation of curtains or
blinds to block excessive sunlight. Any
such installation must be completed in
accordance with applicable Association

Plaintiff’s Response and Supporting
Evidence

3. Undisputed.

4. Undisputed that Mission Place provided
the buyers with the referenced “disclosure
statement.” Disputed to the extent that this
fact No.4 as stated misrepresents the
“disclosure statement” attached as Exhibit E
to the Shine Declaration does not contain any
of the bold and italicized writing set forth in
fact No. 4. Rather, the language set forth in
this fact No. 4 was buried deep on page
twelve of a 25 page document, in type that is
by no means bold faced and italicized as it
now is made to appear, and as part of a
paragraph dealing with such diverse subjects
as kitchen exhaust, off-gassing from new
materials, and smoking and wording advising
buyers that “the Units do not contain air
conditioners.” As stated, this fact No. 4
grossly misstates the content and nature of
the “disclosure.” (Mission Place’s
“Disclosure Statement’, p. 12, § 40(d),
attached as Exhibit E to Shine Declaration,
5.)

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Mission Place’s Undisputed Material
Facts and Supporting Evidence

Rules. Prior to purchase, Buyers
should determine that the window
placement, temperature level and air
flow characteristics of its Unit meet
Buyer’s personal comfort standards.
(emphasis added). See Mission Place’s
“Disclosure Statement”, p. 12, || 40(d),
attached as Exhibit E to Shine
Declaration, § 8; Deposition of Monish
Bhatia (“Bhatia Deposition”), at 30:24 —
31:24 , 73:7-16 attached as Exhibit B to
Shine Declaration, § 5; See Deposition
of Robert Schlesinger (“Schlesinger
Deposition”), Vol. 1 227:17 — 25, 228:23
~ 229:1, 231:17 ~ 22, and Vol. 2, at
252:5 — 16, attached as Exhibit D to
Shine Declaration, § 7; Declaration of
Patrick Kelly (“Kelly Declaration”), 4 4
—7.

5. Mission Place provided the individual
Unit Owners with the disclosure
statement prior to purchasing their units.
See TAC, attached as Exhibit A to Shine
Declaration, § 4; Bhatia Deposition,
attached as Exhibit B to Shine
Declaration, {{ 5; Deposition of Michael
Alfaro (“Alfaro Deposition”), attached
as Exhibit C to Shine Declaration, § 6;
See Schiesinger Deposition, Vol. 1, at
227:17 — 25, 228:23 —229:1, 231: 17 -
22, and Vol. 2, at 252:5 — 16, attached as
Exhibit D to Shine Declaration, § 7;
Kelly Declaration, {{ 4 — 7.

6. Monish Bhatia was deposed in this
matter on March 30, 2011 as the Beacon
Residential Community Association’s
person most knowledgeable. Mr. Bhatia

Plaintiff’s Response and Supporting
Evidence

5. Undisputed.

6. Undisputed.

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ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

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Mission Place’s Undisputed Material
Facts and Supporting Evidence

is a purchaser of two of the units at the
Project and was also on the Board of
Directors for the Beacon Residential
Community Association. See Bhatia

Deposition at 8:16-9:7, 21:23-22:

30:17-31:2, 161:18-23, attached as

Exhibit B to Shine Declaration, {

7. Mr. Bhatia testified that prior
purchasing his unit from Mission
he received and read disclosures
provided by Mission Place regart

1,
5.

0
Place,

ing the

heat gain problem and the fact that it
may become hot in the unit. See Bhatia

Deposition at 30:24-3 1:11, 73:7-
attached as Exhibit B to Shine
Declaration, § 5.

6,

Plaintiff’s Response and Supporting
Evidence

7. Disputed. This fact misstates the very
disclosure that Mission Place relies upon in
bringing this motion. Mission Place’s
Disclosure Statement attached as Exhibit E to
the Shine Declaration, states only that
“certain units” (without specifying which
units) may become “uncomfortably warm.”
Rather, than rely upon the express terms of
the Disclosure Statement to support this fact
No. 7, Mission Place relies upon the
deposition testimony paraphrasing the terms
of the statement to vary its terms. Such
assertions fail to meet the requirement of
CCP § 437c(b}(1) that the moving party set
forth “plainly and concisely all material facts
which the moving party contends are
undisputed.” Reeves v. Safeway Stores, Inc.
(2004) 121 Cal.App.4th 95, 105-106
“perceptions of witnesses are simply not
‘material facts’ as that term is used in the
summary judgment statute.” Of course such
“evidence” is also inadmissible hearsay.

Furthermore, the disclosures provided to Mr.
Bhatia were not clear and were not accurate
as follows:

Paragraph 40(d) of the Disclosure Statement
suggests that the overheating of the units
could be alleviated by “opening windows”
and taking “additional temperature and air

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Mission Place’s Undisputed Material Plaintiff’s Response and Supporting
Facts and Supporting Evidence Evidence

circulation management measures, such as
installation of ceiling fans, to promote air
flow and installation of curtains or blind to
block excessive sunlight.”

This is not the case. The windows in the
units only open a maximum of four inches
and because of the exterior noise adjacent to
the Project cannot, under the building code,
be used to cool the units. (Declaration of
Michael T. Burgess in Opposition to Motions
for Summary Adjudication of Mission Place,
LLC and Catellus (“Burgess Decl.”), § 4;
Declaration of Francis J. Offermann in
Opposition to Motions for Summary
Adjudication of Mission Place, LLC and
Catellus (“Offermann Decl.”), 4] 5;
Declaration of Michael Lefler in Opposition
to Motions for Summary Adjudication of
Mission Place, LLC and Catellus (“Lefler
Decl.”), 4 5, 10.)

The “additional temperature and air
circulation management measures” described
in the Disclosure Statement do not alleviate
the overheating problem at the Project.
(Burgess Decl., { 5; Offermann Dec!., 4] 5,
13; Lefler Decl., § 20 ~ 23; Deposition of
Stephane Panier (“Panier Depo.”), 16:25 —
18:17 attached as Exh. L to the Declaration of
Sung E. Shim in Opposition to Motions for
Summary Adjudication of Mission Place,
LLC and Catellus (“Shim Decl.”), 4 15;
Deposition of John S. Symonds (“Symonds
Depo.”), 19:6 — 22:18 attached as Exh. Q to
the Shim Decl., § 20; Deposition of Robert
Poynter (“Poynter Depo.”), 19:15 — 21:5 18
attached as Exh. N to the Shim Decl., § 17;
Deposition of Jeffrey Dong (“Dong Depo.”),

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Mission Place’s Undisputed Material
Facts and Supporting Evidence

8. Mr. Bhatia stated that he read the
final sentence of the heat abatement
paragraph that advised buyers to
determine whether the unit met their
personal comfort standards prior to
purchasing their units. See Bhatia
Deposition at 78:21-79:4, attached as
Exhibit B to Shine Declaration, § 5.

Plaintiff’s Response and Supporting
Evidence

18:22 — 19:4, 28:20 — 29:3 attached as Exh. E
to the Shim Decl., { 8; Deposition of Greg
Rice (“Rice Depo), 37:6 — 37:14 attached as
Exh. O to the Shim Decl., 18)

In the opinion of Plaintiff's Certified
Industrial Hygienist and Professional
Mechanical Engineer paragraph 40(d) does
not constitute a complete and fair disclosure
of the overheating problem as it exists at the
Beacon Project because the overheating
problem is to such an extent that it poses a
potential health hazard. (Offermann Decl., |
13.)

In the opinion of Plaintiff's licensed
mechanical engineer who has studied the
conditions at the Project extensively,
paragraph 40(d) does not constitute a fair and
complete disclosure of the overheating
problem as it exists at the Beacon Project
because there were material undisclosed
differences between the situation at the
Project as depicted in paragraph 40(d) of the
Disclosure Statement and the actual
conditions at the Project. (Lefler Decl., § 6.)

8. Disputed. This fact is misleading and
incomplete in implying that Bhatia, or any
other purchaser, would have been able to
adequately “determine whether the window
placement, temperature level and airflow
characteristics of its unit meet [their]
personal comfort standards” prior to
purchasing their unit. Bhatia later testified
that he “wouldn’t know how” to determine
whether his unit met his “personal comfort
standards” because he was “in each unit for
jess than an hour probably less than —

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SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

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Mission Place’s Undisputed Material
Facts and Supporting Evidence

9. Prior to purchasing his unit, Mr.
Bhatia discussed the heat issue and
possibilities for heat abatement with a
salesperson at the Beacon. Mr. Bhatia
was told the units may become
uncomfortably warm but that further
elaboration was difficult because what is
“uncomfortable” is not a quantifiable
thing but instead a state of mind. See
Bhatia Deposition at 74:4-75:15,
attached as Exhibit B to Shine
Declaration, § 5.

10. Mr. Bhatia testified that he
understood “uncomfortable” to mean

Plaintiff’s Response and Supporting
Evidence

probably near around 30 minutes each time
and | wouldn’t know how airflow and
temperature levels — there weren’t any —I
didn’t have a thermometer on me, I wouldn’t
have know how to have gone about that.”
Bhatia Deposition at 79:8 — 79:13, attached
as Exhibit B to Shine Declaration, ] 5.

Furthermore there would be no practical way
for a buyer such as Mr. Bhatia to gauge the
magnitude of the overheating problem prior
to purchase, because the overheating problem
in the units affected is not constant, and tends
to be at its worst during the September and
October time frame, so buyers could not
assess the problem if they are buying at other
times of the year. (Lefler Decl., § 6.)

9. Disputed. Nowhere in the cited
Janguage of the Bhatia Deposition, or
elsewhere, does Bhatia state that “further
elaboration was difficult.” Rather, citing the
exact language used by Mission Place in
Disclosure Statement, Bhatia states that “it is
difficult to understand what ‘uncomfortable’
means.” Furthermore, such assertions fail to
meet the requirement of CCP § 437c(b)(1)
that the moving party set forth “plainly and
concisely all material facts which the moving
party contends are undisputed.” (Reeves v.
Safeway Stores, Inc. (2004) 121 Cal-App.4th
95, 105-106 (“perceptions of witnesses are
simply not ‘material facts’ as that term is
used in the summary judgment statute.”)
(Bhatia Deposition at 76:15 — 76:18, attached
as Exhibit B to Shine Declaration, {| 5.

10. Disputed. Bhatia’s statement in his
deposition fails to meet the requirement of

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ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

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Mission Place’s Undisputed Material
Facts and Supporting Evidence

someplace that would be uncomfortable
but where he could still live. He
explained that he can live in his unit for
the most part and that it is pretty good
except for five or six days of the year.
See Bhatia Deposition at 80:10-18,
attached as Exhibit B to Shine
Declaration, { 5.

li. After reading the disclosure and
talking with a representative about the
heat gain issue, Mr. Bhatia chose to
purchase the unit. See Bhatia Deposition
at 79:18-22, attached as Exhibit B to
Shine Declaration, §[ 5.

12. Michael Alfaro was deposed in this
action on four separate occasions
between March 17, 2011 and March 29,
2011 as both a percipient witness and as
Plaintiff, the Beacon Residential
Community Association’s, person most
knowledgeable regarding Mission
Place’s disclosure statement. See Alfaro
Deposition, Vol. 1, at 34:5-9, attached as
Exhibit C to Shine Declaration, {| 6.

Plaintiff’s Response and Supporting
Evidence

CCP § 437c(b)(1) that the moving party set
forth “plainly and concisely all material facts
which the moving party contends are
undisputed.” (Reeves v. Safeway Stores, Inc.
(2004) 121 Cal.App.4th 95, 105-106
“perceptions of witnesses are simply not
‘material facts’ as that term is used in the
summary judgment statute.”) Furthermore,
this fact No. 10 misstates the cited portion of
Bhatia’s testimony. Bhatia does not state
that he understood the term “uncomfortable,”
“to mean” anything. Rather, Bhatia stated
that he “basically assumed that
‘uncomfortable was still, you know,
someplace I could live.” As cited above,
Bhatia testified it was “difficult to understand
what the term ‘uncomfortable’ means.”
(Bhatia Deposition at 76:15 — 76:18, 80:10 —
80:18 attached as Exhibit B to Shine
Declaration, § 5.)

11. Disputed. There is no way to tell based

upon this citation which of Bhatia’s units is
being referenced.

12. Undisputed.

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Mission Place’s Undisputed Material
Facts and Supporting Evidence

13. Mr. Alfaro acknowledged that the
prospective buyers received disclosure
letters prior to purchasing the units and
does not recall being told by any
homeowner that they were unaware of
Mission Place’s disclosure regarding the
temperature in the units. See Alfaro
Deposition, Vol. 3, at 300:10 ~ 22, 351:6
— 9, attached as Exhibit C to Shine
Declaration, { 6.

14. Mr. Alfaro believes the disclosure
made it clear there was no air
conditioning in the units. See Alfaro
Deposition, Vol. 3, at 376:14 ~ 24,
attached as Exhibit C to Shine
Declaration, { 6.

Plaintiff’s Response and Supporting
Evidence

13. Disputed to the extent this fact suggests
that homeowners were aware of Mission
Place’s “disclosure regarding the temperature
in the units” prior to purchasing their units.
Alfaro’s assertions fail to meet the
requirement of CCP § 437c(b)(1) that the
moving patty set forth “plainly and concisely
all material facts which the moving party
contends are undisputed.” (Reeves v.
Safeway Stores, Inc, (2004) 121 Cal. App.4th
95, 105-106 “perceptions of witnesses are
simply not ‘material facts’ as that term is
used in the summary judgment statute.”
Furthermore, this as stated this Fact No. 13
misstates Alfaro’s testimony. Alfaro does
not “acknowledge” that the “prospective
buyers received” anything but states that he
is “not certain if they were given to
prospective purchasers prior to the close of
escrow.” (Alfaro Deposition, Vol. 3, at
300:10 — 22, 351:6 — 9, attached as Exhibit
C to Shine Declaration, § 6.

14. Disputed. Alfaro’s testimony fails to
meet the requirement of CCP § 437¢(b)(1)
that the moving party set forth “plainly and
concisely all material facts which the moving
party contends are undisputed.” (Reeves v.
Safeway Stores, Inc, (2004) 121 Cal. App.4th
95, 105-106 (“perceptions of witnesses are
simply not ‘material facts’ as that term is
used in the summary judgment statute.”)

Furthermore the sufficiency of the
disclosures is an “ultimate” fact at issue and
jJegal conclusions as to this ultimate fact are
not legally sufficient for summary judgment
and must be disregarded. (Hayman v. Block
(1986) 176 Cal.App.3d 629, 638-639.)

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SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
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Mission Place’s Undisputed Material
Facts and Supporting Evidence

15. Mr. Alfaro also understood the units
could become “uncomfortably warm”
but thinks the term “uncomfortably” is a
subjective term and is vague and that
there is a difference between
uncomfortably warm and uninhabitable.
See Alfaro Deposition, Vol. 3, at 377:1
— 13, attached as Exhibit C to Shine
Declaration, § 6.

Plaintiff’s Response and Supporting
Evidence

Furthermore, this fact as stated is grossly
misleading and ignores Alfaro’s clear
testimony (that Mission Place bracketed
but elected not to cite) that it was his
“opinion that the disclosure was — did not
clearly represent the real life issues relative
to heat gain ... and [] was intentionally
vague.” (Alfaro Deposition, Vol. 3, at 354:14
~ 18, attached as Exhibit C to Shine
Declaration.)

15. Disputed. Alfaro’s testimony fails to
meet the requirement of CCP § 437c(b)(1)
that the moving party set forth “plainly and
concisely all material facts which the moving
party contends are undisputed.” (Reeves v.
Safeway Stores, Inc. (2004) 121 Cal-App.4th
95, 105-106 (“perceptions of witnesses are
simply not ‘material facts’ as that term is
used in the summary judgment statute.”))
The sufficiency of the disclosures is an
“ultimate” fact at issue in this action and
Jegal conclusions as to this ultimate fact are
not legally sufficient for summary judgment
and must be disregarded. (Hayman v. Block
(1986) 176 Cal. App.3d 629, 638-639.)

Furthermore, this fact as stated is grossly
misleading and ignores Alfaro’s clear
testimony (that Mission Place bracketed
but elected not to cite) that it was his
“opinion that the disclosure was ~— did not
clearly represent the real life issues relative
to heat gain ... and [] was intentionally
vague.” (Alfaro Deposition, Vol. 3, at 354:14
~ 18, attached as Exhibit C to Shine
Declaration, {[ 6.)

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Mission Place’s Undisputed Material
Facts and Supporting Evidence

16. Mr. Alfaro did not state that any of
the homeowners told him the units were
uninhabitable. See Alfaro Deposition,
attached as Exhibit C to Shine
Declaration, { 6.

Plaintiff’s Response and Supporting
Evidence

16. Disputed. Alfaro’s testimony fails to
meet the requirement of CCP § 437c(b)(1)
that the moving party set forth “plainly and
concisely all material facts which the moving
party contends are undisputed.” (Reeves v.
Safeway Stores, Inc. (2004) 121 Cal-App.4th
95, 105-106 (“perceptions of witnesses are
simply not ‘material facts’ as that term is
used in the summary judgment statute.”))
Habitability is an “ultimate” fact at issue in
this action and legal conclusions as to this
ultimate fact are not legally sufficient for
summary judgment and must be disregarded.
(Hayman v. Block (1986) 176 Cal.App.3d
629, 638-639.)

Furthermore, several homeowners testified
that at times they could not remain in their
unit due to the heat as follows:

© Panier Depo., attached as Exhibit L to
the Shim Declaration 16:23 — 24,
describing conditions as “unbearably
ot”;

© Poynter Depo., 21:15 — 21:20, 41:7 —
41:13, 65:2 ~ 65:12 attached as Exh.

to the Shim Declaration stating that
his unit was “uninhabitable” for
himself and his wife due to the heat,
that the conditions in his unit
constituted “extreme heat,” and that
he considered the conditions to be a

ealth concern;

© Deposition of Ali Ghiasi (“Ghiasi
Depo.), 17:21 ~ 18:4 attached as Exh.
F Shim. Decl., {9 the stating that
because of the heat at times his tenants

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Mission Place’s Undisputed Material
Facts and Supporting Evidence

Plaintiff’s Response and Supporting
Evidence

“couldn’t sleep at night and they said,
honey, let’s just go and stay at the
hotel down the street”;

¢ Dong Depo. attached as Ehx. E to the
Shim Decl., 15:9 — 15:11, 22:11 -
22:15, 23:8 — 23:18, 29:3 — 29:4
stating that his unit is so “hot and
stuffy” that he “can’t sleep” at times,
that he had conversations with other
residents that the heat made the units
“unsafe,” that he considered moving
out of his unit because of the heat and
that “often many days we can’t sleep”
and characterizing his unit as
“uninhabitable” at times;

e Deposition of Clara Daniels (“Daniels
Depo.”), 26:9 — 26:17 attached a
Exhibit D to the Shim Decl., 7,
stating that she has considered her unit
to be “uninhabitable ... many, many
times”;

* Deposition of Hester Lee (“Lee

Depo.”), 12:6 — 12:12 attached as
Exh, H to the Shim Decl., § 11 stating
hat ber husband considered the heat
in her unit “unbearable” on
“numerous” occasions;

e Deposition of Esther Mok (“Mok

Depo.”), 21:7 — 9; 23:6 — 7 attached as
Exhibit K to the Shim Decl., {| 14
characterizing conditions as “very
hot” and stating that her tenant
“cannot stand the heat’;

© Symonds Depo., 16:10 - 16:11, 18:2 —

SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
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Mission Place’s Undisputed Material
Facts and Supporting Evidence

17. Mr. Alfaro acknowledged that the
language in the disclosure statement
regarding taking measures to reduce the
heat in the units indicated to him the
units could get uncomfortably warm to a
degree where mitigation was necessary.
See Alfaro Deposition, Vol. 3, at 383:3 —
24, 387:19 — 388:22, attached as Exhibit
C to Shine Declaration, { 6.

Plaintiff’s Response and Supporting
Evidence

18:15, 25:16 — 25:20 attached as Exh.
Q to the Shim Declaration describing
the heat in his unit as “intolerably
warm or hot,” that it was “impossible
to stay in the house,” that his unit was
“uninhabitable” on many occasions
and that the heat lead to “extreme
discomfort.”

In addition, in the opinion of Plaintiff's
Certified Industrial Hygienist and
Professional Mechanical Engineer paragraph
40(d) of the Disclosure Statement does not
constitute a complete and fair disclosure of
the overheating problem as it exists at the
Beacon Project because the overheating
problem is to such an extent that it poses a
potential health hazard. (Offermann Decl., |
13.)

17, Disputed. Alfaro’s testimony fails to
meet the requirement of CCP § 437c(b)(1)
that the moving party set forth “plainly and
concisely all material facts which the moving
party contends are undisputed.” (Reeves v.
Safeway Stores, Inc. (2004) 121 Cal-App.4th
95, 105-106 (“perceptions of witnesses are
simply not ‘material facts’ as that term is
used in the summary judgment statute.”))

The sufficiency of the disclosures is an
“ultimate” fact at issue in this action and
jJegal conclusions as to this ultimate fact are
not legally sufficient for summary judgment
and must be disregarded. (Hayman v. Block
(1986) 176 Cal.App.3d 629, 638-639.)

Furthermore, this fact as stated is grossly
misleading and ignores Alfaro’s clear

14

SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

22

23

Mission Place’s Undisputed Material
Facts and Supporting Evidence

Plaintiff’s Response and Supporting
Evidence

testimony (that Mission Place bracketed
but elected not to cite) that it was his
“opinion that the disclosure was — did not
clearly represent the real life issues relative
to heat gain ... and [] was intentionally
vague.” (Alfaro Deposition, Vol. 3, at 354:14
~ 18, attached as Exhibit C to Shine
Declaration, §[ 6.)

In addition, the “additional temperature and
air circulation management measures”
described in the Disclosure Statement do not
alleviate the overheating problem at the
Project. (Burgess Decl., | 5; Offermann
Decl., § 5, 13; Lefler Decl., § 20 — 23; Panier
Depo., 16:25 — 18:17; Symonds Depo., 19:6
~ 22:18; Poynter Depo., 19:15 — 21:5; Dong
Depo., 18:22 — 19:4, 28:20 — 29:3, 38:15 —
38:17; Rice Depo., 37:6 ~ 37:14)

In addition, in the opinion of Plaintiff's
Certified Industrial Hygienist and
Professional Mechanical Engineer paragraph
40(d) of the Disclosure Statement does not
constitute a complete and fair disclosure of
the overheating problem as it exists at the
Beacon Project because the units get “hot”
not just “uncomfortably warm” to such an
extent that it poses a potential health hazard.
(Offermann Decl., § 13.)

In the opinion of Plaintiffs licensed
mechanical engineer who has studied the
conditions at the Project extensively,
paragraph 40(d) does not constitute a fair and
complete disclosure of the overheating
problem as it exists at the Beacon Project
because there were material undisclosed
differences between the situation at the

15

SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCMission Place’s Undisputed Material Plaintiff’s Response and Supporting
Facts and Supporting Evidence Evidence

Project as depicted in paragraph 40(d) of the
3 Disclosure Statement and the actual
conditions at the Project. (Lefler Decl., § 6.)

5 18. Robert Schlesinger was deposed in 18. Undisputed.
this action on three separate occasions

6 between July 10, 2012 and July 12, 2012

as Mission Place’s person most

7 knowledgeable. See Deposition of

Robert Schlesinger (“Schlesinger

8]! Deposition”), Vol. 1, at 14:4 — 15:24,

attached as Exhibit D to Shine

9 Declaration, § 7.

10 19, Mr. Schlesinger is a vice-president 19. Undisputed.
at Centurion Real Estate Partners and is
responsible for preparation of financial
analyses for prospective investments,
investment presentations,
correspondence and communication with
lenders and partners and various aspects
of asset management of existing

14 investments. See Schlesinger
Deposition, Vol. 1, at 12:20 — 13:4,

15 attached as Exhibit D to Shine
Declaration, | 7.

KATZOFF & RIGGS

20. With regard to the Project, Mr. 20. Undisputed
17 || Schlesinger was involved in the
preparation of the contract package and
18 also acted as the primary business
contact for Mission Place with respect to
19 the contract package. He also provided
input in the drafting of all sections of the
20 Beacon disclosure statement. See
Schlesinger Deposition, Vol. 1, at 229:2-
21 18, attached as Exhibit D to Shine
Declaration, § 7.

22

23 |) 16

SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

22

23

Mission Place’s Undisputed Material
Facts and Supporting Evidence

21. Mr. Schlesinger testified that
Mission Place, LLC provided the
Beacon disclosure statement to every
purchaser of a residential unit at the
Project as part of the contract package.
See Schlesinger Deposition, Vol. 1, at
227:17 — 25, 228:23 — 229:1, 231: 17 —
22, and Vol. 2, at 252:5 — 16, attached as
Exhibit D to Shine Declaration, { 7.

22. This disclosure contained the
language on page 12, paragraph 40, in
which Mission Place warned prospective
buyers that the units “may become
uncomfortably warm when exposed to
sunny conditions and/or hot weather.”
See Schlesinger Deposition, Vol. 1, at
233:25 — 233:5, attached as Exhibit D to
Shine Declaration, {| 7; Mission Place’s
“Disclosure Statement”, p. 12, §] 40(d),
attached as Exhibit E to Shine
Declaration, § 8.

Plaintiff’s Response and Supporting
Evidence

21. Undisputed.

22, Disputed. Schlesinger’s testimony fails
to meet the requirement of CCP § 437c(b)(1)
that the moving party set forth “plainly and
concisely all material facts which the moving
party contends are undisputed.” (Reeves v.
Safeway Stores, Inc, (2004) 121 Cal.App.4th
95, 105-106 (“perceptions of witnesses are
simply not ‘material facts’ as that term is
used in the summary judgment statute.”))

The effect of the disclosures and what they in
‘act “warned prospective buyers” of is an
“ultimate” fact at issue in this action and

egal conclusions as to this ultimate fact are
not legally sufficient for summary judgment
and must be disregarded. (Hayman v. Block
(1986) 176 Cal.App.3d 629, 638-639.)

“

Furthermore, homeowners testified. that had.
they read paragraph 40 “Disclosure
Statement” it would not have “provided
notice that your unit could become
uncomfortably warm” because he “couldn’t
have imagined that thee unit would be too
hot.” (Symonds Depo., 39:18 — 40:16) and
that paragraph 40(d) of the Disclosure
Statement was not an adequate disclosure of

17

SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
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22

23

Mission Place’s Undisputed Material
Facts and Supporting Evidence

Plaintiff’s Response and Supporting
Evidence

the conditions of the units because “it's so
uncomfortable that 1 don’t think anyone
could

be comfortable sleeping.” (Dong Depo.,
38:15 — 38:17.)

In addition, the disclosures provided to the
buyers were not clear and were not accurate
as follows:

Paragraph 40(d) of the Disclosure Statement
suggests that the overheating of the units
could be alleviated by “opening windows”
and taking “additional temperature and air
circulation management measures, such as
installation of ceiling fans, to promote air
flow and installation of curtains or blind to
block excessive sunlight.”

This is not the case. The windows in the
units only open a maximum of four inches
and because of the exterior noise adjacent the
Project cannot, under the building code, be
used to cool the units. (Burgess Decl., 4 4;
Offermann Decl., § 5; Lefler Decl., 5, 10.)
The “additional temperature and air
circulation management measures” described
in the Disclosure Statement do not alleviate
the overheating problem at the Project.
(Burgess Decl., § 5; Offermann Decl., 4 5,
13; Lefler Decl., { 20 — 23; Panier Depo.,
16:25 — 18:17; Symonds Depo., 19:6 —
22:18; Poynter Depo., 19:15 — 21:5; Dong
Depo., 18:22 ~ 19:4, 28:20 — 29:3, 58:15 —
58:19; Rice Depo., 37:6 — 37:14)

In the opinion of Plaintiff's Certified
Industrial Hygienist and Professional
Mechanical Engineer paragraph 40(d) does

18

SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

22

23

Mission Place’s Undisputed Material
Facts and Supporting Evidence

23. Mr. Schlesinger testified he does not
know what the difference between “hot”
and “uncomfortably warm” would be
and believes the disclosure provided an
accurate notice of facts that Mission
Place was aware of regarding the
property. See Schlesinger Deposition,
Vol. 1, at 235:7 — 17, attached as
Exhibit D to Shine Declaration, { 7.

Plaintiff’s Response and Supporting
Evidence

not constitute a complete and fair disclosure
of the overheating problem as it exists at the
Beacon Project because the overheating
problem is to such an extent that it poses a
potential health hazard. (Offermann Decl., |
13)

In the opinion of Plaintiff's licensed
mechanical engineer who has studied the
conditions at the Project extensively,
paragraph 40(d) does not constitute a fair and
complete disclosure of the overheating
problem as it exists at the Beacon Project
because there were material undisclosed
differences between the situation at the
Project as depicted in paragraph 40(d) of the
Disclosure Statement and the actual
conditions at the Project. (Lefler Decl., § 6.)

5

23. Disputed. Schlesinger’s testimony fails
to meet the requirement of CCP § 437c(b)(1)
that the moving party set forth “plainly and
concisely all material facts which the moving
party contends are undisputed.” (Reeves v.
Safeway Stores, Inc, (2004) 121 Cal. App.4th
95, 105-106 (“perceptions of witnesses are
simply not ‘material facts’ as that term is
used in the summary judgment statute.”))

Whether “the disclosure provided an accurate
notice of facts that Mission Place was aware
of regarding the property” is an “ultimate”
fact at issue in this action and legal
conclusions as to this ultimate fact are not
legally sufficient for summary judgment and
must be disregarded. (Hayman v. Block
(1986) 176 Cal.App.3d 629, 638-639.)

Furthermore, prior to distributing the

19

SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

22

23

Mission Place’s Undisputed Material
Facts and Supporting Evidence

Plaintiff’s Response and Supporting

Evidence

Disclosure Statement to buyers Mission
Place was made aware of extreme heat
conditions at the Project as follows that were
not referenced in the Disclosure Statement:

On or about September 17, 2004, a
tenant in Unit 848 at the Project,
complained to Mission Place
management that the internal
temperatures in his unit had
approached 100 degrees Fahrenheit,
creating a “convection oven-like
situation” in his unit. (Shim Decl., {
32 & Exh. AA; Deposition of Robert
Schlesinger (“Schlesinger Depo.”)
148:13 — 151:19; attached as Exh. P to
the Shim Decl., ¥ 19.)

On or about November 3, 2004 some
other Beacon tenants provided a
“Petition” to Schlesinger stating that
they were suffering “extreme general
discomfort,” “inability to sleep,”
“inability to work,” “headaches,” and
“loss of appetite and fatigue” due to
heating and ventilation deficiencies at
the Project. (Shim Decl., 33 & Exh.
BB; Schlesinger Depo., 191:7 —
191:14.)

On December 4, 2004 at the Project
informed Mission Place management
that he had been “constantly sick”
when he spent any time in his unit,
due to the lack of air circulation.
(Shim Deel., 45 & Exh. NN — letter
dated December 5, 2004, from
Ramesh Balwani, a tenant occupant of
Unit 1510 at the Beacon Project.)

20

SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

22

23

Mission Place’s Undisputed Material
Facts and Supporting Evidence

Plaintiff’s Response and Supporting
Evidence

© On March 15, 2005 tenants of at the
Project, when moving out, wrote a
letter to Mission Place’s property
manager stating that they had been
forced to move out of the Project
because their unit was “un-inhabitable
for 11 months a year.” (Shim Decl, {
37 & Exh. FF.)

¢ On March 15, 2005 a tenant at the
Project, forwarded a note from her
doctor to Mission Place’s property
manager prescribing “ventilation” and
“air-conditioning” to remedy
migraines from which she was
suffering. (Shim Decl., [37 & Exh.
FF.)

In addition, the disclosures provided to the
buyers were not clear and were not accurate
as follows:

Paragraph 40(d) of the Disclosure Statement
suggests that the overheating of the units
could be alleviated by “opening windows”
and taking “additional temperature and air
circulation management measures, such as
installation of ceiling fans, to promote air
flow and installation of curtains or blind to
block excessive sunlight.”

This is not the case. The windows in the
units only open a maximum of four inches
and because of the exterior noise adjacent the
Project cannot, under the building code, by
used to cool the units. (Burgess Decl., 4;
Offermann Decl., 45; Lefler Decl., § 5, 10.)

21

SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

22

23

Mission Place’s Undisputed Material
Facts and Supporting Evidence

24. Mr. Schlesinger testified every
buyer was given an opportunity to see
the unit that he or she was purchasing
prior to entering into a contract. See
Schlesinger Deposition, Vol. 2, at 324:3
— 9, attached as Exhibit D to Shine
Declaration, § 7.

Plaintiff’s Response and Supporting
Evidence

The “additional temperature and air
circulation management measures” described
in the Disclosure Statement do not alleviate
the overheating problem at the Project.
(Burgess Decl., { 5; Offermann Decl., 4 5,
13; Lefler Decl., { 20 — 23; Panier Depo.,
16:25 ~ 18:17; Symonds Depo., 19:6 —
22:18; Poynter Depo., 19:15 — 21:5; Dong
Depo., 18:22 — 19:4, 28:20 — 29:3, 58:15 —
58:19; Rice Depo., 37:6 ~ 37:14)

In the opinion of Plaintiff's Certified
Industrial Hygienist and Professional
Mechanical Engineer paragraph 40(d) does
not constitute a complete and fair disclosure
of the overheating problem as it exists at the
Beacon Project because the overheating
problem is to such an extent that it poses a
potential health hazard. (Offermann Decl., 4]
13.)

In the opinion of Plaintiff's licensed
mechanical engineer who has studied the
conditions at the Project extensively
paragraph 40(d) does not constitute a fair and
complete disclosure of the overheating
problem as it exists at the Beacon Project
because there were material undisclosed
differences between the situation at the
Project as depicted in paragraph 40(d) of the
Disclosure Statement and the actual
conditions at the Project. (Lefler Decl., { 6.)
24. Disputed. Schlesinger’s testimony fails
to meet the requirement of CCP § 437c(b)(1)
that the moving party set forth “plainly and
concisely all material facts which the moving
party contends are undisputed.” (Reeves v.
Safeway Stores, Inc. (2004) 121 Cal.App.4th
95, 105-106 (“perceptions of witnesses are

22

SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCMission Place’s Undisputed Material Plaintiff’s Response and Supporting

3 Facts and Supporting Evidence Evidence
simply not ‘material facts’ as that term is

3 used in the summary judgment statute.”))

4 Whether, prior to the purchase of their units,
buyers of units at the Project could have

5 independently discovered the heat and
ventilation problems concealed by Mission

6 Place is an “ultimate” fact at issue in this
action and legai conclusions as to this

7 ultimate fact are not legally sufficient for
summary judgment and must be disregarded.

8 (Hayman v. Block (1986) 176 Cal.App.3d

9 629, 638-639.)

Furthermore, Plaintiffs dispute that any
10 buyers could have independently discovered
the heat and ventilation problems concealed

g by Mission Place in the limited time they
s were inside the units prior to purchase. Most
E buyers of units at the Project only visited
8 their unit once or twice for a short period (no
Z more than 30 minutes) prior to purchasing
their unit: (Daniels Depo., 18:25 ~ 19:2
14 (“several minutes”); Dong Depo., 13:25 —
14:2 (“30 minutes”); Poynter Depo., 12:12 —
15 12:14 (“approximately 20, 30 minutes’);
Rice Depo., 14:20 — 14:22 (“15 minute
16 showing.”)
7 In addition, Mission Place placed extreme
pressure on buyers who “were expected to
18 act quickly if [they] were to buy any unit ...
[b]ecause they were selling like hotcakes”
19 and buyers did not have adequate time to
“investigate their personal comfort
20 preference” prior to purchase. Despite
having an opportunity to “see” the units prior
21 to purchase “according to the standards that
» were set up at the time from Mission Place”
23 —

23
SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

22

23

Mission Place’s Undisputed Material
Facts and Supporting Evidence

25. As part of discovery, the Special
Master, the Honorable Ronald M.
Sabraw (ret.) ordered at least one current
owner of each unit at the Project to
answer a “Homeowner Questionnaire
Regarding Renovations, Remodels,
Modifications, And/Or Repairs”
(hereinafter “Questionnaire”). See Kelly
Declaration, § 8.

26. The Questionnaires were required to
be completed and returned to Plaintiff's
counsel. See Kelly Declaration, {| 8.

27. Plaintiff's counsel produced the
completed Questionnaires to Mission
Place. See Kelly Declaration, § 8.

28. Question No. 3 of the Questionnaire
asks the Unit Owner to identify the
“Names of All Previous Owners, if
known.” See Kelly Declaration, 4 8.

Plaintiff’s Response and Supporting
Evidence

buyers did not discover the heat and
ventilation problems concealed by Mission
Place until after moving into their units.
(Rice Depo., 18:25 — 19:25, 44:20 — 45:13.)

Furthermore there would be no practical way
for a buyer to gauge the magnitude of the
overheating problem prior to purchase,
because the overheating problem in the units
affected is not constant, and tends to be at its
worst during the September and October time
frame, so buyers could not assess the

roblem if they purchased at other times of
the year. (Lee Depo., 32:23 — 33:16; Lefler
Decl., 46.)

25. Undisputed.

26. Undisputed.

27. Undisputed.

28. Undisputed.

24

SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

22

23

Mission Place’s Undisputed Material
Facts and Supporting Evidence

29. Many of the Unit Owners answered
question No. 3 by writing “N/A” or by
identifying “Mission Place” as the
previous owner. See Kelly Declaration,

18.

30. At least 41 Unit Owners listed the

previous owner, the person or entity they

personally purchased their unit from, as
someone other than Mission Place. See
Kelly Declaration, {[ 8.

Plaintiff’s Response and Supporting
Evidence

29. Undisputed.

30. Undisputed.

PLAINTIFF’S ADDITIONAL MATERIAL FACTS IN OPPOSITION TO
MOTION FOR SUMMARY ADJUDICATION

Plaintiff’s Additional Material Facts
in Opposition

31. The Beacon Project consists of 595
units that are situated within eight
different buildings.

32. In August of 2004, before the
construction of the Beacon Project was
even complete, Mission Place had
already entered into a contract with the
developer, the Catellus entities, to
participate in the marketing of the
Project.

33. Robert Schlesinger, the manager
employee of Centurion Real Estate
Partners (“Centurion”) (which was
Mission Place’s managing member

Supporting Evidence

31. Declaration of Michael Alfaro in
Support of Motion for Class Certification,
filed herein on Aug. 24, 2012 attached as
(“Alfaro Class Cert. Decl.”), 3 attached
as Exhibit 6 to Plaintiff's Request for
Judicial Notice in Opposition to Motions
for Summary Adjudication of Mission
Place and Catellus (“Request for Judicial
Notice”).

32. Schlesinger Depo., 85:8 ~ 85:11.

33. Schlesinger Depo., 12:18 — 13:20; 86:9 —
87:2; Deposition of John Tashjian (“Tashjian
Depo.”), 12:19 ~ 13:13 attached as Exh. S to
the Shim Decl., § 22; Shim Decl., 4] 46 & Exh.

25

SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

22

23

Plaintiff's Additional Material Facts
in Opposition

throughout the relevant period) had an
apartment in the Beacon Project where
he stayed during visits to San Francisco
from his home in New York City starting
in August 2004.

34. Soon after some of the units at the
Beacon Project were rented out to
tenants Schlesinger learned about the
heat gain problem at the Beacon Project
and discussed that problem with
numerous people, including the owners
of Centurion who managed Mission
Place.

35. On September 17, 2004 Robert
Schlesinger transmitted a complaint for
Chris Mammarelli, a tenant in Unit 848
at the Project, to Anni Chapman
informing Mission Place management
that the internal temperatures in Mr.
Mammarelli’s unit had approached 100
degrees Fahrenheit, creating a
“convection oven-like situation” in his
unit.

36. Schlesinger also personally
experienced an overheating issue in Unit
1302, which was one of the units he
himself stayed in during his visits to the
Beacon.

37. On or about November 3, 2004 a
“Petition” from some other Beacon
tenants was left in front of Schlesinger’s
front door stating that that the Beacon
Project’s residents were suffering

“extreme general discomfort,” “inability
2 6

to sleep,” “inability to work,”
“headaches,” and “loss of appetite and

Supporting Evidence

oo.

34. Schlesinger Depo., 102:21—107:14,
186:10~-186:15.

35. Shim Decl., | 32 & Exh. AA; Schlesinger
Depo.,148:13 ~ 151:19.

36. Schlesinger Depo., 154:12 — 154:18,
181:21 — 182:3.

37, Shim Decl., {33 & Exh. BB; Schlesinger
Depo., 191:7—191:14.

26

SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

22

23

Plaintiff's Additional Material Facts
in Opposition

fatigue” due to heating and ventilation
deficiencies at the Project.

38. On November 3, 2004 Robert
Schlesinger, sent an e-mail to John
Tashjian, attaching a Memorandum to
Lehman Brothers Real Estate Fund
drafted on the letterhead of Centurion
Real Estate Partners, LLC, stating that
he had noticed that “Secured Capital’s
apartment at Mission Place ... tends to
be hot on hot days.”

39. On November 3, 2004 Robert
Schlesinger, on the letterhead of
Centurion Real Estate Partners, LLC
sent and Memorandum to Lehman
Brothers Real Estate Fund enclosing a
petition from tenants of the Project
regarding the “heat in certain
apartments.”

40. On November 5, 2004 Schlesinger

sent an e-mail to Mark Haddix regarding

“issues of heat exposure / air
circulation.”

41. On December 4, 2004 Ramesh

Balwani, a tenant occupant of Unit 1510

at the Project informed Mission Place
management that he had been
“constantly sick” when he spent any
time in his unit, due to the lack of air
circulation.

42, At the end of December 2004,

Mission Place closed its transaction with

Catellus whereby it agreed to pay
Catellus a total of $338,842,046.82 in
order to take over the ability to sell the

Supporting Evidence

38. Shim Decl., § 35, 36 & Exhs. DD, EE.

39. Shim Decl., [34 & Exh, CC.

40. Schlesinger Depo., 203:7 ~ 204:19, Shim
Decl., {36 & Exh. EE.

41. Shim Decl., [45 & Exh. NN.

42. Schlesinger Depo 65:7 — 65:19, 140:16 —
141:12; 625:17; Shim Decl., 31 & Exh. Z.

27

SEPARATE STATEMENT OF MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY
ADJUDICATION OF MISSION PLACE, LLCKATZOFF & RIGGS

22

23

Plaintiff's Additional Material Facts
in Opposition

Project as condominiums and pocket the
proceeds.

43. On March 15, 2005 Enrico and
Helene Franco, tenants of Unit 1102 at
the Project, when moving out, wrote a
letter to Mission Place’s property
manager stating that they had been
forced to move out of the Project
because their unit was “un-inhabitable
for 11 months a year.”

44, On March 15, 2005 Enrico and
Helene Franco, tenants of Unit 1102 at
the Project, forwarded a note from Ms.
Franco’s doctor to Mission Place’s
property manager Jeff Buck prescribing
“ventilation” and “air-conditioning” to
remedy migraines from which she was
suffering.

45. In an attempt to alleviate the
overheating problem at the Project
Mission Place applied a film over certain
of the windows facing south and west at
the Project.

46, Over a 23 day period in March and
April 2005, in which the average outside
t