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

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Gordon & Rees LLP
Embarcadero Center West
275 Battery Street, Suite 2000
San Francisco, CA 94111

28

AIUH/1068375/144602t4v.1

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 JAN 14 2013

; Clerk of the Court
Attorneys for Defendants, Cross-Defendants and BO Sore en AG 2yRTH NUNEZ

WEBCOR CONSTRUCTION, INC.; WEBCOR BUILDERS, INC.; Deputy Clerk
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
ASSOCIATION,

CASE NO. CGC-08-478453

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

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Plaintiff, )
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) BUELDERS’ REPLY TO PLAINTIFF’S
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VS.

RESPONSE TO WEBCOR’S
SEPARATE STATEMENT OF
UNDISPUTED MATERIAL FACTS IN
SUPPORT OF THEIR MOTION FOR
SUMMARY ADJUDICATION
AGAINST PLAINTIFF BEACON
RESIDENTIAL COMMUNITY
ASSOCIATION

CATELLUS THIRD AND KING LLC, et al.,

Defendants.

AND RELATED CROSS-ACTIONS.

[Code of Civil Procedure §§ 437c et seq.]
Complaint Filed: August 8, 2009

DATE: — January 17, 2013

TIME: = 9:30.a.m.

DEPT: 304

JUDGE: Honorable Curtis E.A. Karnow
TRIAL DATE: February 4, 2013 (vacated)

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 (“WEBCOR”) submit the

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WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

following reply to PLAINTIFF’s response to WEBCOR’s Separate Statement of Undisputed
Material Facts:

SEVENTH CAUSE OF ACTION: THIRD PARTY EXPRESS INDEMNITY

Plaintiff BEACON RESIDENTIAL COMMUNITY ASSOCIATION’s (“PLAINTIFF”)
Seventh Cause of Action for Third Party Beneficiary — Breach of Contracts and Subcontracts —
against WEBCOR has no merit and fails because PLAINTIFF cannot prove that the BEACON
RESIDENTIAL ASSOCIATION, itself, in its capacity as assignee of the BEACON
COMMERCIAL OWNERS’ ASSOCIATION or in its asserted capacity as a representative of a
class which includes individual homeowners, referred as MEMBERS in the Third Amended
Complaint (“TAC”) are (1) intended to be beneficiaries of the contract between WEBCOR and
THIRD AND KING INVESTORS, LLC. (“WEBCOR contract”) or the subcontracts to which
WEBCOR was a party (“SUBCONTRACTS”). Nor can the PLAINTIFF show that it was a

successor to the WEBCOR contract.

THIRD PARTY BENEFICIARY

PLAINTIFF’s claims for third party beneficiary have no merit and fail because they
cannot demonstrate the parties to the WEBCOR contract or the SUBCONTRACTS intended it to
be a third party beneficiary, or that PLAINTIFF is a successor to the WEBCOR contract. (See

Civil Code of Procedure section 337.1)

Undisputed Material Facts and Supporting Response and Supporting Evidence
Evidence

1. This lawsuit was initiated by PLAINTIFF | 1. Undisputed.
against, inter alia, THIRD AND KING,
INC, and the CATELLUS PARTIES ,
which include Catellus Development
Corp.; Catellus Operating Limited
Partnership; Catellus Urban Development
Corp.; Catellus Commercial Development
Corp.; Catellus Third and King LLC; and
Prologis, which had originally developed
and owned the PROJECT, that is currently
defined as the property located at 250 and
260 King Street, San Francisco, CA, with
595 condominium units and commercial
spaces.

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WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting
Evidence

Response and Supporting Evidence

Supporting Evidence: See generally,
PLAINTIFF’s Third Amended Complaint
(“TAC”) at 4 1, 26 and 39 attached as
Exhibit “A” to WEBCOR’s Request for
Judicial Notice (“RIN”).

Defendant’s Reply: PLAINTIFF does not di:

spute this fact. No reply is necessary.

2. The suit involves a multitude of claims of
claims against TKI and the CATELLUS
PARTIES , MISSION PLACE, LLC and
its other related entities (collectively,
MISSION PLACE”), the subsequent
owner and seller of the residential units at
the property, as well as the architects
involved in the design of the PROJECT
and the construction team, including
WEBCOR as the general.

Supporting Evidence: See generally,
PLAINTIFF’s TAC, attached as Exhibit “A”
to WEBCOR’s RJN.

2. Undisputed,

Defendant’s Reply: PLAINTIFF does not dispute this fact. No reply is necessary.

3. PLAINTIFF brings the suit on behalf of
itself, referenced herein specifically as (1)
the Beacon Residential Community
Association (“BEACON
ASSOCIATION”), (2) the Beacon
Commercial Owners’ Association
(“COMMERCIAL ASSOCIATION”)
from whom BEACON ASSOCIATION
claims it was assigned its rights, and (3)
on behalf of the 595 individual unit
owners (the “MEMBERS”).

Supporting Evidence: PLAINTIFF’s TAC
at 910, 19-20, attached as Exhibit “A” to
WEBCOR’s RIN.

3. Undisputed.

Defendant’s Reply: PLAINTIFF does not di

spute this fact. No reply is necessary.

4. A motion for class certification is
pending.

Supporting Evidence: Declaration of
Sandy M. Kaplan (“Kaplan Decl.”) at 42.

4. Undisputed.

Defendant’s Reply; PLAINTIFF does not dispute this fact, No reply is necessary.

w3e

WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting
Evidence

Response and Supporting Evidence

5. Webcor Construction, Inc. dba Webcor
Builders entered into a construction
contract (““WEBCOR contract”) with TKI
in or around August 24, 2001.

Supporting Evidence: Declaration of Chet
Brians (“Brians Decl.”), at 2; Exhibit “B,”
attached thereto.

5. Undisputed,

Defendant’s Reply: PLAINTIFF does not dispute this fact. No reply is necessary.

6. The scope of work for the PROJECT was
stated in the WEBCOR contract as
comprising of residential, retail and
commercial,

Supporting Evidence: See Brians Decl. at
4| 4, Exhibit A-1 of Exhibit “B,” attached
thereto.

6, Disputed. The WEBCOR contract speaks
for itself. Brians’ statement as to the
content of the WEBCOR contract 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.””)

Furthermore the scope of work in the
WEBCOR contract is an “ultimate” fact at
issue 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.)

Defendant’s Reply: PLAINTIFF’s objections are misplaced. The Separate Statement of
Undisputed Facts (“SSUF’) No. 6 sets forth clearly and concisely WEBCOR’s scope of work
as it was stated in the WEBCOR contract. There is no perception evidence in this statement of
fact. (Compare Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 105-106 (wherein
the court rejected alleged facts that went beyond the facts actually known to the declarant).
The WEBCOR contract states: “Project Description .... The program calls for residential,
retail, and commercial uses.” (See Exhibit A-1 of Exhibit B, attached to the Brians Decl.) The
plain language of the WEBCOR contract supports the fact presented by WEBCOR.
Furthermore, PLAINTIFP’s assertion SSUF No. 6 is an “ultimate fact” misinterprets the law.
Not only is the fact is supported by documentary evidence, but it is a fact that is helpful in the
determination of the third party beneficiary status of the PLAINTIFF. (Compare Guthrey v.
State of California (1998) 63 Cal.App. 4" 1108, 1120, where the court rejected the Declarant’s
conclusionary statements that were unsupported by any factual evidence.} The scope of work
in the contract is clearly stated, and Brians’ authenticating statement is consist with the
contract.

Last, PLAINTIFF presents no factual evidence that disputes that the scope of work for the
PROJECT was residential, retail and commercial construction. PLAINTIFF offers no

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WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting Response and Supporting Evidence
Evidence

discovery responses, deposition testimony, declaration or other evidence that contradicts this
fact.

7. The residential component was described | 7. Disputed. The WEBCOR contract speaks

as 595 residential units for rent. for itself as to what the language
regarding the residential portion of the
Supporting Evidence: Brians Decl. at 5, project description states. Furthermore,
Exhibit A-1 of Exhibit “B,” attached thereto. the fact as stated is misleading as the term
“for rent” is not bold and italicized as set
forth herein and omits key language that
the “entire project will be mapped for
condominium purposes” in order to
provide “flexibility to convert residential
rental units to for-sale units” and that it
was “important, therefore, to design the
project with conversion in mind.”

Brians’ statement as to the content of
the WEBCOR contract fails fo 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.”)
Furthermore the nature of the residential
component of the WEBCOR contract is an
“ultimate” fact at issue in this motion 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.)

Defendant’s Reply: PLAINTIFF’s objections are misplaced. First, SSUF No. 7 is not a
quote and any italics or bold need not appear in the evidentiary document from which it taken.
The statement is not incomplete but evidences that the clear, emphatic intent of the PROJECT,
as stated from the WEBCOR contract and authenticated by Brians. Any statement regarding
the type of mapping for the PROJECT does not change the fact that the residential units were
intended to be rental, as directly expressed in the WEBCOR contract. It should be noted that
the complete quote is “All 595 residential units are currently intended to be rental, however,
the entire PROJECT will be mapped for condominium purposes, providing Catellus with the
flexibility to convert residential rental units to for-sale units in the event it becomes
financially beneficial to do so.” (Exhibit A-1 of Exhibit B, attached to Brian’s Decl.)
(Emphasis added.) The statement of fact appropriately and concisely paraphrases the material
fact upon which a third-party beneficiary can be determined, which is - at the time of
contracting, what was the intent of the contracting party.

Second, there is no perception evidence in this statement of fact. The WEBCOR contract

states: “Project Description .... The program calls for residential, retail, and commercial uses.”

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WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting Response and Supporting Evidence
Evidence

(bid.) The plain language of the WEBCOR contract supports the fact presented by
WEBCOR. Brians is not attesting to what he thought might have been the case, what he felt or
what he suspected but what WEBCOR knew at the time it entered into the contract. (Compare
Reeves, supra, 121 Cal. App.4th at 105-106 (wherein the court rejected alleged facts that went
beyond the facts actually known to the declarant).

Thirdly, PLAINTIFF’s assertion that the undisputed fact presented is an “ultimate fact”
misinterprets the law. WEBCOR’s presentation of facts necessary to determine whether a
third party beneficiary relationship existed is not tantamount to presenting legal conclusions or
ultimate facts. (Compare Guthrey, supra, 63 Cal.App.4"" at 1120, where the court rejected the
Declarant’s conclusionary statements that were unsupported by any factual evidence.) The
description of the residential units as stated in the contract is clearly stated and Brians”
authenticating statement is consistent with the contract.

Last, PLAINTIFF presents no factual evidence that disputes that the residential component
was described as 595 residential for rent. PLAINTIFF offers no discovery responses,
deposition testimony, declaration or other evidence that contradicts this fact. Reliance on an
incomplete quote from the WEBCOR contract is insufficient to raise a triable issue of fact.

8. At the time that WEBCOR entered into 8. Disputed. The WEBCOR contract speaks

the WEBCOR contract and for itself as to what the language
SUBCONTRACTS, it understood that the regarding the residential portion of the
residential portion of the PROJECT was project description states.

to be constructed and used as apartments.
Brians’ self serving statement regarding
Supporting Evidence: Brians Decl. at 4 6. WEBCOR’s understanding of the
meaning of the WEBCOR contract fails to
meet the requirement of CCP § 437e(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 interpretation of
WEBCOR’s intent in entering the
WEBCOR contract is an “ultimate” fact at
issue in this motion 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.)

In addition, in the Prime Contract with
CATELLUS (i.e. “the WEBCOR
Contract”), WEBCOR agreed to
contribute to the costs of a Owner
Provided Liability Insurance Policy
(OCIP) in lieu of a general liability

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WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting
Evidence

Response and Supporting Evidence

insurance policies for the Subcontractor’s
onsite work and deducted a credit for this
amount from the amount due to the
Subcontractors, OCIP policies provide
third-party general liability coverage for
the insureds’ activities at the project site.
Coverage generally includes both bodily
injury and property damage protection to
non-project property, and completed
operations protection for the longest
applicable statutory period during which a
construction defect claim can be brought.
The Subcontracts between Webcor and
the Subcontractors generally included
language indicating that an OCIP policy
had been purchased, that the
Subcontractors were to enroll in this
policy and account for their proportionate
share of the this policy

Supporting Evidence:

Declaration of Sung E. Shim in
Opposition to Motion of Subcontractor
Defendants for Summary Adjudication
(Shim Decl.”), 4 3 — 6.

Brians Decl., Exh. B, Prime Contract,
Exhibit C, Part 2, page 29.

Declaration of Mitch Hookins in Support
of Motion for Summary Adjudication
(“Hookins Decl.”), Exh. C., p. 3
(“Additional Provisions”, paragraphs 1 —
2 and “Mission Bay — Owner Controlled
Insurance Program Summary,” attached
thereto providing coverage for “10 years
completed operations” (p. | of 3) and
“Bid Deduct Analysis & Reconciliation’
Audit Process” attached thereto providing
a detailed structure and process for the
deduction of OCIP premiums from
payments due to the subcontractor and
“Contractor Enrollment Form” and
“Insurance Premium Worksheet” attached
thereto.)

Declaration of Tim Blue in Support of
Subcontractors’ Motion for Summary
Adjudication (“Blue Decl.”), Exh. B, at p.
2 “General Requirements” paragraph 1.

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WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting Response and Supporting Evidence
Evidence

Defendant’s Reply: PLAINTIFF’s objections are misplaced. First, SSUF No. 8 addresses
WEBCOR’s understanding of the express document which is unambiguously supported by the
WEBCOR contract’s language — “AlI 595 residential units are currently intended to be rental,
however, the entire PROJECT will be mapped for condominium purposes, providing Catellus
with the flexibility to convert residential rental units to for-sale units in the event it becomes
financially beneficial to do so.” (Exhibit A-1 of Exhibit B, attached to Brian’s
Decl.)(Emphasis added.)

Second, there is no perception evidence in this statement of fact. The plain language of the
WEBCOR contract supports the fact presented by WEBCOR. Brians is not attesting to what
he thought might have been the case, what he felt or what he suspected but what WEBCOR
knew at the time it entered into the contract. (Compare Reeves, supra, 121 Cal.App.4th at
105-106 (wherein the court rejected alleged facts that went beyond the facts actually known to
the declarant).

Third, PLAINTIFF’s assertion the undisputed fact presented is an “ultimate fact” misinterprets
the law. The statement at issue is supported by evidentiary evidence ~ namely the WEBCOR
contract, and is not a legal conclusion or unsupported ultimate fact. The scope of work in the
contract is clearly stated, and Brians’ statement and understanding is consist with expressed
into in the contract,

Fourth, all statements regarding the purpose of an OCIP and the existence of any OCIP must
be disregarded, as more specifically set forth in WEBCOR’s Evidentiary Objections to Sung
Shim’s Declaration (“Shim Decl.”). Shim is not a disclosed expert on insurance matter, and
therefore he cannot attest to any purported reasons a developer would choose to insure a
PROJECT with an OCIP. Shim has no personal knowledge as to the reason that an OCIP
program was used in this PROJECT - he was not a participant in the contract negotiations
between WEBCOR and TKI or any of the Subcontractors. As a lay witness he cannot opine
on issues outside of his personal knowledge, and his opinions are not based upon any
evidence. This court must strike and disregard any opinions or facts presented by Shim related
to insurance. None of the documents referenced by PLAINTIFF, inclusive of the WEBCOR,
contract and SUBCONTRACTS, support findings that (1) the purpose of an OCIP is to protect
against homeowner suits or (2) that the reason that an OCIP program was used was because
the units were intended to be sold as condominiums. It is notable that MISSION PLACE,
which was the only party with an intention to sell, and the only party that sold, the units as
condominiums, was not an insured under the OCIP, yet TKI and the CATELLUS PARTIES ,
which intended to use the PROJECT for rental only, were insured under the OCIP. (See
Tashjian Depo. Vol. 2 at pp. 237:23-25, 238:18-20, attached as Exhibit “M” to Suppl. Kaplan
Decl.)

Last, PLAINTIFF presents no factual evidence that disputes that the residential component
was described as 595 residential for rent. PLAINTIFF offers no discovery responses,
deposition testimony, declaration or other evidence that contradicts this fact. Reliance on an
incomplete quote from the WEBCOR contract is insufficient to raise a triable issue of fact.

9. TKI and the CATELLUS PARTIES 9. Undisputed.
designated Seth Bland as their Person
Most Knowledgeable on the issues of
design of the Project and the Covenants,
Conditions and Restrictions (“CC&Rs).

~R-

WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting
Evidence

Response and Supporting Evidence

Supporting Evidence: Kaplan Decl, at { 3;
Exhibit “C”.

Defendant’s Reply: PLAINTIFF does not dispute this fact. No reply is necessary.

10. TKI and the CATELLUS PARTIES also
designated Michael McCone as their
person most knowledgeable on
construction issues and a number of other
related issues in their Second Amended
Designation of Persons Most
Knowledgeable

Supporting Evidence: Kaplan Decl. at { 4;
Exhibit “C”,

10. Undisputed.

Defendant’s Reply: PLAINTIFF does not dispute this fact. No reply is necessary.

il. While TKI and the CATELLUS
PARTIES owned the PROJECT, a
substantial portion of the units were
rented as apartments — approximately one
entire tower.

Supporting Evidence: Deposition of Seth
Bland (“Bland Depo.”) at pp. 157:12-25;
158: 1-22, attached as Exhibit “D” to Kaplan
Decl.

Deposition of John Tashjian (“Tashjian
Depo.”) Vol. 2, at pp. 273:22-25: 274:1-8,
attached as Exhibit “E” to Kaplan Decl.

11. Disputed. The language of this fact
referencing a “substantial portion” is
vague and confusing. Using this same
language a “substantial portion” of the
PROJECT, approximately one entire
tower, was never rented prior to being
sold as condominiums.

Supporting Evidence:
Deposition of John Tashjian (“Tashjian

Depo.”) Vol. 2, at pp. 273:22 — 274:15
attached as Exhibit “E” to Kaplan Decl.

Defendant’s Reply: PLAINTIFF’s objections are misplaced. There is nothing vague or
confusing about the evidence which paraphrases that testimony of two deponents. The
meaning of “substantial” is clear in the statement — one tower was rented. PLAINTIFF’s
statement that the one tower was never rented is a distinction without a difference from the
stated fact. The question posed to the deponents was how many units were rented, not the
corollary question of how many units were not rented. (See Bland Depo. at pp. 157:12-25;
158:1-22 and Tashjian Depo. Vol. 2, at pp. 273:22-25: 274:1-8, attached as Exhibits “D” and

“E” to Kaplan Decl.)

Last, PLAINTIFF cites to no legal authority in support of its proposition and presents no
competent evidence that disputes that SSUF No 11. PLAINTIFF offers no discovery
responses, deposition testimony, declaration or other evidence that contradicts this fact.

12. TKI and the CATELLUS PARTIES
intended and operated the entire
PROJECT, including the commercial
spaces and units, as rental properties.

12. Disputed. The entire PROJECT was not
rented. Indeed a “substantial portion” of
the PROJECT, approximately one entire
tower, was never rented prior to being
sold as condominiums. Furthermore,

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WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting
Evidence

Response and Supporting Evidence

Supporting Evidence: See Bland Depo., at
pp. 49:3-11, 19-25; 50:1-6; 132:2-25; 133:1-
13; 160:11-19, attached as Exhibit “D” to
Kaplan Decl.

Deposition of Michael McCone (“McCone

Depo.”), at pp. 17:10-25; 91:14-25; 92:1-6;
189:19-25; 190:1-6, attached as Exhibit “F”
to Kaplan Decl.

McCone testified that CATELLUS
intended to “create an opportunity for it to
become a condominium in the future.”

In addition, in the Prime Contract with
CATELLUS, WEBCOR agreed to
contribute to the costs of an Owner
Provided Liability Insurance Policy
(OCIP) in lieu of a general liability
insurance policy for the Subcontractor’s
onsite work and deducted a credit for this
amount from the amount due to the
Subcontractors. OCIP policies provide
third-party general liability coverage for
the insureds’ activities at the project site.
Coverage generally includes both bodily
injury and property damage protection to
non-project property, and completed
operations protection for the longest
applicable statutory period during which a
construction defect claim can be brought.
The Subcontracts between Webcor and
the Subcontractors generally included
language indicating that an OCIP policy
had been purchased, that the
Subcontractors were to enroll in this
policy and account for their proportionate
share of the this policy

Bland and McCone’s self serving
statement regarding TK] and the
CATELLUS PARTIES intent in
operating the entire PROJECT 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.”)

Furthermore, TK] and the CATELLUS
PARTIES intent in operating the entire
PROJECT is an “ultimate” fact at issue in
this motion 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.)

~10-

WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting Response and Supporting Evidence
Evidence

Supporting Evidence:

Deposition of John Tashjian (“Tashjian
Depo.”) Vol. 2, at pp. 273:22 ~ 274:15
attached as Exhibit “E” to Kaplan Decl.

Deposition of Michael McCone
(“McCone Depo,”), at p, 91:14-25; 92:1-
6, attached as Exhibit “F” to Kaplan Decl.

Brians Decl., Exh. B, Prime Contract,
Exhibit C, Part 2, page 29.

Shim Decl., € 3 — 6.

Declaration of Mitch Hookins in Support
of Motion for Summary Adjudication
(“Hookins Decl.”), Exh. C., p. 3
(“Additional Provisions”, paragraphs | ~
2 and “Mission Bay ~ Owner Controlled
Insurance Program Summary,” attached
thereto providing coverage for “10 years
completed operations” (p. 1 of 3) and
“Bid Deduct Analysis & Reconciliation/
Audit Process” attached thereto providing
a detailed structure and process for the
deduction of OCIP premiums from
payments due to the subcontractor and
“Contractor Enrollment Form” and
“Insurance Premium. Worksheet” attached
thereto.)

Declaration of Tim Blue in Support of
Subcontractors’ Motion for Summary
Adjudication (“Blue Decl.”), Exh. B, at p.
2 “General Requirements” paragraph 1.

Defendant’s Reply: PLAINTIFF’s objections are misplaced. First, SSUF No. 12 accurately
summarizes the testimony of both McCone and Bland to its essence, which is that the
CATELLUS PARTIES intended and did operate the entire PROJECT as rental properties
regardless of the fact that CATELLUS had not yet rented one of the towers — its intention was
to rent the residential units. McCone, a person most knowledgeable for the CATELLUS
PARTIES , testified:

Question: “Does this [Master Declaration of Covenants, Conditions, Restrictions and
Reservations of Easement for the Mission Bay - A Master Plan
Community] refresh your recollection that while you were working on the
project, Catellus decided to build a condominium project as opposed to
apartment units?”

McCone’s Answer: “Catellus built this as an apartment. And as is common in the

development community when you’re building apartments, you create an

~ll-

WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000
San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting Response and Supporting Evidence

Evidence

opportunity for it to become a condominium in the future. That can really,
especially with a project of this size, can really only be done during
construction. It’s harder to do this work after it’s constructed, so it’s
common that this is done during construction, whether or not a project ever
becomes a condominium or not. So the intention of Catellus was to build
an apartment building as we did, and lease it as we did, and have this
document created as a way to add value for some future person who
may own it.” (McCone Depo. at pp. 91:14-25, 92:1-6.) (Emphasis added.)

Question: “... Is this an accurate statement: ‘Declarant intends to create a
condominium project?’”

McCone’s Answer: “No, I don’t think it is accurate. | think it’s something that is
required to write in a document [CC&Rs] so that it’s approved and
recorded, so that it can be used in the future if some future owner decides to
use this document. Just because it says it in this document doesn’t mean.
that that’s what was intended by ownership.”

Question: “So it’s your position that Catellus never intended to create a condominium
project?” [Objection omitted]

McCone’s Answer: “Correct.” [McCone’s counsel comment omitted].

Question: “You didn’t keep in mind in the construction of Beacon project that the
residential units some day may be condominiums?”

McCone’s Answer: “No.”

Bland’s testimony comports with McCone’s testimony, as demonstrated by the following:

Question: “What was your understanding of, when the project was being constructed, .
. . where it [would] be residential units for rent or for condominium use?”

Bland’s Answer: “The design of the project was always intended to be rental.”
(Bland Depo. at p. 48:19-24.)(Emphasis added.)

Question: When was your understanding of the first time that anyone at Catellus
believed that this project would be a condominium project?”

Bland’s Answer: “! would say that, from my perspective, there was no point at
which anyone at Catellus through that this would be a condominium
project. Catellus Development Corporation and our charge at Urban
Group intended te design, finance and construct an exclusively rental
property.” (/d., at p. 49:3-11.) (Emphasis added.)

The above quoted testimony unquestionably supports the statement of fact presented in SSUF

No. 12. Neither of the witnesses’ testimony was based upon perception, but was rather based
upon their first-hand knowledge. Brians and Bland are not attesting to what they thought
might have been the case, what they felt or what they suspected but what WEBCOR knew at

~12-

WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting Response and Supporting Evidence
Evidence

the time it entered into the contract. (Compare Reeves, supra, 121 Cal.App.4th at 105-106
(wherein the court rejected alleged facts that went beyond the facts actually known to the
declarant). Additionally, PLAINTIFF’s assertion that the undisputed fact presented is an
“ultimate fact” misinterprets the law. WEBCOR’s presentation of facts necessary to determine
whether a third party beneficiary relationship existed is not tantamount to presenting legal
conclusions or ultimate facts. (Compare Guthrey, supra, 63 Cal.App.4 at 1120, where the
court rejected the Declarant’s conclusionary statements that were unsupported by any factual
evidence.)

Second, all statements regarding the purpose of an OCIP and the existence of any OCIP must
be disregarded, as more specifically set forth in WEBCOR’s Evidentiary Objections to Shim.
Decl. Shim is not a disclosed expert on insurance matter, and therefore he cannot attest to any
purported reasons a developer would choose to insure a PROJECT with an OCIP. Shim has
no personal knowledge as to the reason that an OCIP program was used in this PROJECT - he
was not a participant in the contract negotiations between WEBCOR and TKI or any of the
Subcontractors. As a lay witness he cannot opine on issues outside of his personal knowledge,
and his opinions are not based upon any evidence. This court must strike and disregard any
opinions or facts presented by Shim related to insurance. None of the documents referenced
by PLAINTIFF, inclusive of the WEBCOR contract and SUBCONTRACTS, support findings
that (1) the purpose of an OCIP is to protect against homeowner suits or (2) that the reason that
an OCIP program was used was because the units were intended to be sold as condominiums.
It is notable that MISSION PLACE, which was the only party with an intention to sell, and the
only party who sold, the units as, condominiums, was not an insured under the OCIP, yet TKI]
and the CATELLUS PARTIES', which intended to use the PROJECT for rental only, were
insured under the OCIP. (See Tashjian Depo. Vol. 2 at pp. 237:23-25, 238:18-20, attached as
Exhibit “M” to Suppl. Kaplan Decl.}

Last, PLAINTIFF presents no factual evidence that disputes that TKI and the CATELLUS
PARTIES intended and operated the entire PROJECT as rental property. PLAINTIFF offers
no discovery responses, deposition testimony, declaration or other evidence that contradicts
this fact. Reliance on an incomplete quote from the McCone’s testimony is insufficient to
raise a triable issue of fact. Creation of an opportunity for a future, speculative owner, does
not alter the intent of the original developer.

13. None of the units were sold as 13. Undisputed.
condominiums were sold by TKI or the
CATELLUS PARTIES.

Supporting Evidence: See Deposition of
Jeffrey Worthe (“Worthe Depo.”) Vol. 2, at p.
288:19-25; 289:1-2, attached as Exhibit “G”
to Kaplan Decl.

Defendant’s Reply: PLAINTIFF does not dispute this fact. No reply is necessary.

i4. MISSION PLACE purchased the 14. Undisputed.
PROJECT in December of 2004.

' For purposes of this document CATELLUS and CATELLUS PARTIES have the definition stated in SSUF No. 1
and include Third and King Investors (“TKI”).

~13-
WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting
Evidence

Response and Supporting Evidence

Supporting Evidence: Tashjian’s
Declaration to MISSION PLACE’s Motion
for Summary Adjudication against
WEBCOR., at § 3, attached as Exhibit “K” to
WEBCOR’s RIN.

Defendant’s Reply: PLAINTIFF does not dispute this fact. No reply is necessary.

15. MISSION PLACE was the party which
sold the units as condominiums.

Supporting Evidence: Worthe Depo., Vol. 2

at pp. 288:19-25; 289:1-2, attac
“G" to Kaplan Decl.

ed as Exhibit

15. Undisputed.

Defendant’s Reply: PLAINTIFF does not dispute this fact. No reply is necessary,

16. In or around the winter of 2005,
MISSION PLACE began selling the units
as condominiums to individuals and sold
the last condominium in 2007,

Supporting Evidence: See Tashjian Depo.,
at pp. 248:21-25: 252:3-7, attached as Exhibit
“B" to Kaplan Decl.

16. Undisputed.

Defendant’s Reply: PLAINTIFF does not dispute this fact. No reply is necessary.

17. Although MISSION PLACE had no such
intention when it purchased the
PROJECT, MISSION PLACE also sold
the commercial spaces to individuals and.
companies, as well as the parking garage
after it purchased the PROJECT from
TKI.

Supporting Evidence: See Tashjian Depo.,
at p. 251:9-16, attached as Exhibit “E” to
Kaplan Decl.

17. Disputed. Tashjian’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.”)

In the Prime Contract with CATELLUS
WEBCOR agteed to contribute to the
costs of a Owner Provided Liability
Insurance Policy (OCIP) in lieu of a
general liability insurance policies for the
Subcontractor’s onsite work and deducted
a credit for this amount from the amount
due to the Subcontractors. OCIP policies
provide third-party general liability
coverage for the insureds’ activities at the
project site. Coverage generally includes
both bodily injury and property damage

~I4-

WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS

IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting
Evidence

Response and Supporting Evidence

protection to non-project property, and
completed operations protection for the
ongest applicable statutory period during
which a construction defect claim can be
brought. The Subcontracts between
Webcor and the Subcontractors generally
inchided language indicating that an OCIP
policy had been purchased, that the
Subcontractors were to enroll in this
policy and account for their proportionate
share of the this policy

Furthermore the intent of MISSION
LACE in purchasing the PROJECT is an
“ultimate” fact at issue and legal
conclusions as to this ultimate fact are not
egally sufficient for summary judgment
and must be disregarded. (Hayman v.
Block (1986) 176 Cal. App.3d 629, 638-
639.)

Supporting Evidence:

Brians Decl., Exh. B, Prime Contract,
Exhibit C, Part 2, page 29.

Shim Decl., { 3 ~ 6.

Hookins Decl., Exh. C., p. 3 (“Additional
Provisions”, paragraphs | ~ 2 and
“Mission Bay - Owner Controlled
Insurance Program Summary,” attached
thereto providing coverage for “10 years
completed operations” (p. | of 3) and
“Bid Deduct Analysis & Reconciliation/
Audit Process” attached thereto providing
a detailed structure and process for the
deduction of OCIP premiums from
payments due to the subcontractor and
“Contractor Enrollment Form” and
“Insurance Premium Worksheet” attached
thereto.)

Blue Decl., Exh. B, at p. 2 “General
Requirements” paragraph |.

Defendant's Reply: PLAINTIFF objects to statements that are clearly supported and consist
with the testimony. Mr. Tashjian testified, as follows:

Mr, Tashjian’s Answer: “J just want to clarify one thing. Our intention with respect
to the residential units was to sell them. Our intent with the retail and the
garage was to hold it long-term, and that was — so I just wanted do to make

WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting Response and Supporting Evidence
Evidence

that clarification. As it turned out, we ended up selling it because someone
came to use and wanted to purchase it, but there was a different intent.”

(Tashjian Dep., at p. 251:9-16, attached as Exhibit “E” to Kaplan Decl.)

Secondly, the factual statement could not be more concise and plain, and the statement is not
based upon perception. Mr. Tashjian, a person most knowledgeable for MISSION PLACE, is
not testifying as to what he thought might have been. the case, what he felt or what he
suspected, but what was MISSION PLACE’s intention. (Compare Reeves, supra, 121
Cal.App.4th at 105-106 (wherein the court rejected alleged facts that went beyond the facts
actually known to the declarant). Additionally, PLAINTIFF’s assertion that the undisputed
fact presented is an “ultimate fact” misinterprets the law. WEBCOR’s presentation of facts
necessary to determine whether a third party beneficiary relationship existed is not tantamount
to presenting legal conclusions or ultimate facts. (Compare Guthrey, supra, 63 Cal. App.4" at
1120, where the court rejected the Declarant’s conclusionary statements that were unsupported.
by any factual evidence.)

All statements regarding the purpose of an OCIP and the existence of any OCIP must be
disregarded, as more specifically set forth in WEBCOR’s Evidentiary Objections to Shim
Decl. Shim is not a disclosed expert on insurance matter, and therefore he cannot attest to any
purported reasons a developer would choose to insure a PROJECT with an OCIP. Shim has
no personal knowledge as to the reason that an OCIP program was used in this PROJECT - he
was not a participant in the contract negotiations between WEBCOR and TKI or any of the
Subcontractors. As a lay witness he cannot opine on issues outside of his personal knowledge,
and his opinions are not based upon any evidence. This court must strike and disregard any
opinions or facts presented by Shim related to insurance. None of the documents referenced
by PLAINTIFF, inclusive of the WEBCOR contract and SUBCONTRACTS, support findings
that(1) the purpose of an OCIP is to protect against homeowner suits; (2) the reason that an
OCIP program was used was because the units were intended to be sold as condominiums; or
(3) that the commercial spaces would be sold to individuals as well as the parking garage. It is
notable that MISSION PLACE, which was the only party with an intention to sell, and the
only party who sold, the units as condominiums, was not an insured under the OCIP, yet TKI
and the CATELLUS PARTIES , which intended to use the PROJECT for rental only, were
insured under the OCIP. (See Tashjian Depo. Vol. 2 at pp. 237:23-25, 238:18-20, attached as
Exhibit “M” to Suppl. Kaplan Decl.}

Last, PLAINTIFF presents no factual evidence that counters the fact that MISSION PLACE
had an intention, when it purchased the PROJECT, to sell the commercial spaces and parking
garage. PLAINTIFF offers no discovery responses, deposition testimony, declaration or other
evidence that contradicts this fact. PLAINTIFF fails to raise a triable issue of fact.

18. Specifically, PLAINTIFF asserts that 18. Undisputed.
WEBCOR “knew (a) that principals,
agents or employees of
PROLOGIS/CATELLUS’ and/or
“MISSION PLACE LLC’ would
ultimately be the sole shareholders,
officers and directors of Plaintiff
Association; (b) that title to the Subject
Property would ultimately be transferred
to the Members; (c) that such Plaintiff
Association and the Commercial

~16-

WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting
Evidence

Response and Supporting Evidence

Association would ultimately be
responsible for the maintenance and repair
of the various building components that
were being developed, design, constructed
and/or supplied ... [T]hese contracts and
subcontract were, therefore, made for the
express and immediate benefit of Plaintiff.
Plaintiff was a third party beneficiary of
the foregoing contract under the principles
of Gilbert Fin. Corp. v. Steelwork
Contracting Co. (1978) 82 Cal. App. 3d
65, and Loduca v. Polvzos (2007), 153
Cal.App.4" 334.”

Supporting Evidence: PLAINTIFF’s TAC,
at 7 108, 109 attached as Exhibit “A” to
WEBCOR’s RIN.

Defendant’s Reply: PLAINTIFF does not dispute this fact. No reply is necessary.

19. PLAINTIFF asserts that the BEACON
ASSOCIATION, the COMMERCIAL
ASSOCIATION and the MEMBERS “are
successors in interest to
PROLOGIS/CATELLUS and MISSION
PLACE, LLC.” in regards to the
WEBCOR contract.

Supporting Evidence: PLAINTIFF’s TAC
at | 107, attached as Exhibit “A” to
WEBCOR’s RIN.

19. Undisputed.

Defendant’s Reply; PLAINTIFF does not dispute this fact. No reply is necessary,

20. TKI and the CATELLUS PARTIES’
designated person most knowledgeable
on, inter alia, design issues and the
Covenants, Conditions and Restrictions
(“CC&Rs”), Seth Bland testified that
“there was no point at which anyone at
Catellus thought this [Project] would be a
condominium project. Catellus ... and
our charge at the Urban Group intended to
design, finance and construct an
exclusively rental project.”

Supporting Evidence: Bland Depo., at p.
49:3-11, attached as Exhibit “D” to Kaplan
Decl.

20. Disputed. The WEBCOR contract
between CATELLUS and WEBCOR
states that the “entire project will be
mapped for condominium purposes” in
order to provide “flexibility to convert
residential rental units to for-sale units”
and that it was “important, therefore, to
design the project with conversion in
mind” and demonstrates that at some
point someone at CATELLUS thought
that the Project would be a condominium
project. Furthermore, Bland testified that
Catellus took actions “to create an actual
condominium project with individual
units.”

In addition, the very next asserted
undisputed fact (No. 21) directly

~IT-

WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting
Evidence

Response and Supporting Evidence

contradicts this fact stating that in 2004,
“at that point that it was understood that
the PROJECT would be used as
condominiums.” By CATELLUS’ own
admission at some point someone at
CATELLUS understood that the
PROJECT would be used as
condominiums.

In the Prime Contract with CATELLUS
WEBCOR agreed to contribute to the
costs of a Owner Provided Liability
Insurance Policy (OCIP) in lieu of a
general liability insurance policies for the
Subcontractor’s onsite work and deducted
a credit for this amount from the amount
due to the Subcontractors. OCIP policies
provide third-party general liability
coverage for the insureds’ activities at the
roject site. Coverage generally includes
both bodily injury and property damage
protection to non-project property, and
completed operations protection for the
ongest applicable statutory period during
which a construction defect claim can be
rought. The Subcontracts between
Webcor and the Subcontractors generally
included language indicating that an OCIP
policy had been purchased, that the
Subcontractors were to enroll in this
policy and account for their proportionate
share of the this policy

Bland’s self serving statement as to the
thoughts of everyone at CATELLUS
acks any foundation and 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.”)

Furthermore, the CATELLUS PARTIES’
intent in developing the PROJECT is an
“ultimate” fact at issue in this motion and
jegal conclusions as to this ultimate fact
are not legally sufficient for summary
judgment and must be disregarded.

~18-

WEBCOR’S REPLY TO PLAINTIFF'S RESPONSE TO WEBCOR’S SEPARATE STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF WEBCOR’S MOTION FOR SUMMARY ADJUDICATION,Gordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

2 won

Undisputed Material Facts and Supporting Response and Supporting Evidence
Evidence

(Hayman v. Block (1986) 176 Cal. App.3d
629, 638-639.)

Supporting Evidence:

Bland Depo., at pp. 133:10— 11, attached
as Exhibit “D” to Kaplan Decl.

Brians Decl., Exh. B, Prime Contract,
Exhibit C, Part 2, page 29.

Shim Decl., € 3-6.

Hookins Decl., Exh. C., p. 3 (“Additional
Provisions”, paragraphs | — 2 and
“Mission Bay —- Owner Controlled
Insurance Program Summary,” attached
thereto providing coverage for “10 years
completed operations” (p. | of 3) and
“Bid Deduct Analysis & Reconciliation/
Audit Process” attached thereto providing
a detailed structure and process for the
deduction of OCIP premiums from
payments due to the subcontractor and
“Contractor Enrollment Form” and
“Insurance Premium Worksheet” attached
thereto.)

Blue Decl., Exh. B, at p. 2 “General
Requirements” paragraph 1.

Defendant’s Reply: PLAINTIFF plays fast and loose with the facts, leaping to conclusions
that contradict the clear and concise testimony.

Bland, one of CATELLUS’ persons most knowledgeable, testified that CATELLUS had no
intention of using the PROJECT as condominiums. Bland testified, as follows:

Bland’s Answer: “The design of the project was always intended to be rental.”
(Bland Depo. at p. 48:19-24, attached as Exhibit “D” to Kaplan Decl.)
(Emphasis added.).

Bland’s Answer: “I would say that, from my perspective, there was no point at
which anyone at Catellus through that this would be a condominium
project. Catellus Development Corporation and our charge at Urban
Group inte