Document for BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al

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Christian P. Lucia (SBN 203567)

Brent F. Basilico (SBN 197159) EI
SELLAR HAZARD MANNING FICENEC & LUCIA LECTRONICALLY
A Professional Law Corporation FILED
1800 Sutter Street, Suite 460 Superior Court of California,
Concord, CA $4520 County of San Francisco
Telephone: (925) 938-1430 NOV 20 2012
Facsimile: (925) 256-7508 Clerk of the Court
Email: clucia@sellarlaw.com; bbasilico@sellarlaw.com - BY: JUDITH NUNEZ

i Deputy Clerk
Attorneys for:

Defendants and Cross-Deferdants Cupertino Electric,
Inc.; Creative Masonry, Inc.; Carefree Toland Pools, Inc.;
J.W. MeClenahan, Inc.; Van-Mulder Sheet Metal, Inc.;
N.V. Heathorn, Inc.; Critchfield Mechanical, Inc.; Blue's
Roofing Company; West Coast Protective Coatings;
Allied Fire Protection; F. Rodgers Corporation; Western
Roofing Service

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY Case No.: CGC08-478453
ASSOCIATION
DEFENDANT AND CROSS-
Plaintiff, DEFENDANTS CUPERTINO
ELECTRIC, INC., CREATIVE
v. MASONRY, INC., CAREFREE

: TOLAND POOLS, INC., J.W.
CATELLUS THIRD AND KING, LLC, et al. MCCLENAHAN, INC., VAN MULDER

4 SHEET METAL, INC., N.V.

Defendants, HEATHORN, INC., CRITCHFIELD
MECHANICAL, INC., BLUE’S
/ ROOFING COMPANY, WEST COAST
PROTECTIVE COATINGS, ALLIED
AND ALL RELATED CROSS-ACTIONS FIRE PROTECTION, F. RODGERS
CORPORATION, AND WESTERN
ROOFING SERVICE’S SEPARATE
STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF
MOTION FOR SUMMARY
ADJUDICATION AGAINST
PLAINTIFF BEACON RESIDENTIAL
COMMUNITY ASSOCIATION'S
SEVENTH CAUSE OF ACTION FOR
THIRD PARTY
BENEFICIARY/BREACH OF
CONTRACTS AND SUBCONTRACTS

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SUBCONTRACTORS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT
OF THEIR MOTION FOR SUMMARY ADJUDICATION
98908 CGC08-478453ALLEGED IN PLAINTIFF’S THIRD
AMENDED COMPLAINT

Documents Served and Filed Herewith:

1. Memorandum of Points and Authorities
2. Notice of Motion and Motion

3. Request for Judicial Notice

4, Declaration of Brent F. Basilico

5. Declarations of Moving Parties

Date: January 18, 2013

Time: 9:30 a.m.

Dept.; 304

Judge: Honorable Richard A. Kramer

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

Defendants and Cross-Defendants Cupertino Electric, Inc.; Creative Masonry, Inc., Carefree

Toland Pools, Inc.; J.W. McClenahan, Inc.; Van-Mulder Sheet Metal, Inc.; N.V. Heathorn, Inc.;
Critchfield Mechanical, Inc.; Blue's Roofing Company; West Coast Protective Coatings; Allied Fire
Protection; and Western Roofing Service (collectively, “SUBCONTRACTORS”) submit their
separate statement of undisputed material facts in support of their motion for summary adjudication
against Plaintiff Beacon Residential Community Association’s (“PLAINTIFF”) seventh cause of
action for third party beneficiary/breach of contracts and subcontracts alleged in PLAINTIFF’s third
amended complaint (“TAC”), and respectfully request that that Court grant summary adjudication in
favor of SUBCONTRACTORS and against PLAINTIFF.
Seventh Cause of Action for Third Party Beneficiary — Breach of Contracts and Subcontracts

SUBCONTRACTORS?’ motion is based on the grounds that PLAINTIFF’s Seventh Cause of
Action for Third Party Beneficiary — Breach of Contracts and Subcontracts — against
SUBCONTRACTORS has no merit and fails because PLAINTIFF cannot dispute the material facts set
forth below.

A. PLAINTIFF, inclusive of the Beacon Residential Community Association (the “BEACON

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SUBCONTRACTORS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT
OF THEIR MOTION FOR SUMMARY ADJUDICATION
98908 CGC08-478453ASSOCIATION”), the Beacon Commercial Owners’ Association (“COMMERCIAL
ASSOCIATION”), and the 595 individual unit owners (collectively the “MEMBERS”)
identified in the TAC (collectively “PLAINTIFF”) were not, and are not, intended to be
beneficiaries of the subcontracts between SUBCONTRACTORS and Defendant and Cross-
Complainant Webcor Construction, Inc., dba Webcor Builders (collectively “WEBCOR”).
At the time the SUBCONTRACTORS entered into the subcontracts with WEBCOR for the
project which is the subject of the above captioned matter, the project was defined as

apartments and no residential or commercial association was contemplated by the parties or

in the subcontracts, and PLAINTIFF was not known as a potential beneficiary of the
SUBCONTRACTS.

B. PLAINTIFF cannot demonstrate that it was a successor-in-interest pursuant to the
subcontracts between SUBCONTRACTORS and WEBCOR. [WEBCOR entered into
thirteen (13) almost identical subcontracts with SUBCONTRACTORS for construction of
the project:] (This motion includes twelve (12) of the SUBCONTRACTORS because F.
Rodgers Corporation filed a voluntary Chapter 7 Petition in the United States Bankruptcy
Court, Eastern District of California, Case Number 2:12-bk-28413, which is pending.)

C. Any attorney’s fee provision between SUBCONTRACTORS and WEBCOR pertaining to
the project which is the subject of the above captioned matter was only intended to apply to
the parties to the SUBCONTRACTS.

Rather than congest the Court’s file with multiple copies of the same documents,

SUBCONTRACTORS are basing their motion, inter alia, on documents filed by Defendant and Cross-

will be heard concurrently with SUBCONTRACTORS’ motion.)

Defendant Anning-Johnson Company (“ANNING-JOHNSON”) and WEBCOR in support of their

motions for summary adjudication on the same cause of action alleged in PLAINTIFF’s TAC, which

Undisputed Material Facts and Supporting
Evidence

Response and Supporting Evidence

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Response and Supporting Evidence

1. This lawsyit was initiated by PLAINTIFF
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.

See generally, PLAINTIFF’s Third
Amended Complaint (*TAC”) at 4 1, 26
and 39 attached as Exhibit “A” to
Declaration of Brent F.  Basilico
(“Basilice Decl.”)

2. The TAC alleges various claims against
TKL, 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, the architects involved in the
design of the PROJECT and the
construction team, WEBCOR, and the
SUBCONTRACTORS.

See generally, PLAINTIFF’s TAC,
attached as Exhibit “A” to Basilico Decl.

3. PLAINTIFF filed the above captioned
mater on behalf of the following: (1)
itself, referenced herein specifically as the
BEACON ASSOCIATION; (2) the
COMMERCIAL ASSOCIATION from
whom BEACON ASSOCIATION claims
it was assigned its rights; and (3) the
MEMBERS

PLAINTIFF’s TAC at 910, 19-20,
attached as Exhibit “A” to Basilico Deel.

4. A motion for class certification is

4.

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SUBCONTRACTORS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT
. OF THEIR MOTION FOR SUMMARY ADJUDICATION

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Undisputed Material Facts and Supporting Response and Supporting Evidence
Evidence

pending.
Basilico Decl. at §3.

5, WEBCOEF. entered into a construction 5.
contract (“SUBCONTRACTORS
contract”) with TKL in or around August
24, 2001.

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

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

See Brians Decl. at §4, Exhibit A-1 of
Exhibit “B,” attached thereto.

7. The residential component was described | 7.
as 595 residential units for rent.

Brians Decl. at | 5, Exhibit A-1 of Exhibit
“B,” attached thereto.

8. At the time that SUBCONTRACTORS | 8.
entered into the SUBCONTRACTORS
contract and SUBCONTRACTS, | it
understood that the residential portion of
the PROJECT was to be constructed and
used as apartments.

Brians Decl. at § 6.

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

Kaplan Decl. at § 3; Exhibit “C”.

10. TKL and the CATELLUS PARTIES also | 10,
designated Michael McCone as their
person most knowledgeable on
construction issues and a number of other

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SUBCONTRACTORS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT
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98908 CGC08-478453Undisputed Material Facts and Supporting
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Response and Supporting Evidence

related issues in their Second Amended
Designation of Persons Most
Knowledgeable

Kaplan Decl. at § 4; Exhibit “C”.

11. While TKL and the CATELLUS
PARTIES owned the PROJECT, a
substantial portion of the units were
rented as apartments; approximately one
entire tower.

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.

ll.

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

See Blarid Depo, at pp. 49:3-11; 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.

12.

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

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

13.

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

Tashjian’s Declaration to MISSION
PLACE’s Motion for Summary
Adiudication against WEBCOR. at 13.

14.

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attached to SUBCONTRACTORS’ RIN,

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

Worthe Depo., Vol. 2 at pp. 288:19-25;
289:1-2, attached as Exhibit “G” to
Kaplan Deel.

15.

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.

See Tashjian Depo., at pp. 248:21-25;
252: 3-7; attached as Exhibit “E” to
Kaplan Decl.

16.

17.MISSION PLACE also sold the
commercial spaces to individuals and
companies, as well as the parking garage
after it purchased the PROJECT from
TKL.

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

17.

18. PLAINTIFF alleges a number of claims
against SUBCONTRACTORS under its
cause of action for breach of contract —
third party beneficiary. Specifically,
PLAINTIFF asserts that
SUBCONTRACTORS “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
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,

18.

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SUBCONTRACTORS’ SEPARATE STATEMENT OF ‘UNDISPUTED MATERIAL FACTS IN SUPPORT
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Response and Supporting Evidence

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 y. Palyzos (2007), 153
Cal. App.4"" 334,”

PLAINTIFF’s TAC, at §§ 108, 109
attached as Exhibit “A” to Basilico Decl.

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
SUBCONTRACTORS contract.

PLAINTIFF’s TAC at 107, attached as
Exhibit “A” to Basilico Decl.

19.

20.TKL an¢ 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.”

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

20.

21. Mr. Blard also testified that it was not

until 2004, when the PROJECT was
nearly complete, that it was determined
that it would be sold. It was at that point
that it was understood that the PROJECT
would be used as condominiums.

Bland Depo., at pp. 49:24-25;50:1-6;
attached as Exhibit “D” to Kaplan Decl.

21.

22.

When probed more intensely about
CATELLUS’ intent in building the

22,

_PROJECT. Mr, Bland _reiterated_that

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SUBCONTRACTORS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT
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98908

CGC08-478453Undisputed Material Facts and Supporting
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Response and Supporting Evidence

despite the fact that CATELLUS prepared
the Master Declaration of Covenants,
Conditions, Restrictions and Reservations
of Easement for the Mission Bay - A
Master :Plan Community (“Master
CC&Rs”) which stated that it “intended to
create a. condominium project ...”,
CATELLUS always intended to rent the
entire PROJECT, “it only created the
CC&Rs to make it possible for someone
else in the future to create a condominium
project.”

Bland Depo., at pp:131:18-25 through
133:1-13,: attached as Exhibit “D” to
Kaplan Decl.

23.Mr. McCone testified that _ his
understanding was that CATELLUS
stated in the CC&Rs that its intent was to
create a condominium project was merely
to create an opportunity in the future, as
prudent developers do, to make the sale
value higher. Moreover, he testified that
“with a project of this size [creating a
future condominium project] can only be
done during construction. It’s harder to
do [that] after it’s constructed so it is
common that [the CC&Rs] are created
during construction, whether or not a
project ever becomes a condominium of
not.” :

McCone Depo., at pp. 91:14-25; 92:1-6,
attached as Exhibit “F” to Kaplan Decl.

23,

24. Mr. McCone further testified that he did
not keep in mind during the construction
of the PROJECT that the residential units
might some day have been used as
condominiums.

McCone Depo., at p. 92:7-10, attached as
Exhibit “F" to Kaplan Decl.

24,

25. The “Project Description” contained in the
WEBCOR contract describes __ the
residentiai portion of the PROJECT as

follows: ‘All residential units are

25.

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SUBCONTRACTORS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT
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CGC08-478453wa

Undisputed Material Facts and Supporting
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Response and Supporting Evidence

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 :t becomes financially beneficial
to do so.” This quote is the single use of
the term “condominium” in the entirety of
the apfroximately 163-page —_ long
WEBCOEF. contract.

Brians Decl. at 17; see also, Exhibit A-1
of Exhibit “B” attached to Brians Decl.
(Emphasis added.}

26. The WEBCOR contract does not mention
BEACON ASSOCIATION; its
predecessor association, Mission Place
Residential Community Association; any
homeowner association; any CC&Rs; or
that any such association or persons
would be created or in existence.

Brians Decl., at 8; see also, Exhibit “B,”
attached t) Brians Decl.

26.

27.The WEBCOR contract does not
reference the COMMERCIAL
ASSOCIATION, any predecessor
commercial association, or that any such
associations would be created or were
created, ,

Brians Decl., at § 9; see also, Exhibit “B,”
attached to Brians Decl.

27.

28. At the time that WEBCOR entered into its
contract and SUBCONTRACT,
WEBCOR was unaware of that TKL or
any of the CATELLUS PARTIES were
planning to record the any CC&Rs, and
create a. residential and/or commercial
association.

Brians Decl., at 10.

28...

29. WEBCOR had no knowledge when it
entered into the WEBCOR contract and

29.

U, INTRACTS KL or any

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Undisputed Material Facts and Supporting
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Response and Supporting Evidence

of the CATELLUS PARTIES would sel!
the PROJECT to MISSION PLACE LLC.

Brians Decl., at 11.

30, At the time WEBCOR entered into its
contract and the SUBCONTRACTS,
WEBCOR. was unaware of the identities
of the purchasers of the units, the
MEMBERS.

Brians Deel., at 12.

30.

31. At the time that WEBCOR entered into its
contract and the SUBCONTRACTS, it
was unaware of any of the identities of the
purchasers of the commercial spaces, or
that TKL or CATELLUS PARTIES, or
MISSION PLACE intended to sell any of
the commercial spaces.

Brians Decl., at 4 13.

31.

32. MISSION PLACE, LLC, the entity which
bought the Project, was not even created
until 2004, three years after the date of the
WEBCOR contract.

See Tashjian Depo., Vol. 1, at pp 13:20-
25; 14:1-13, attached as Exhibit “E” to
Kaplan Dacl.

32,

33. It was not until November 15, 2002, that
the TKL ‘or the CATELLUS PARTIES
recorded the Master CC&Rs which
created the Master Association for the
entire PROJECT.

See Exhibit “H,” attached to WEBCOR’S
RIN.

33,

34,On December 5, 2003, more than two
years after the WEBCOR contract was in
effect, TKL and the CATELLUS
PARTIES recorded the Declaration of
Covenants, Conditions, Restrictions, and
Reservation of Easements for Mission

34.

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Response and Supporting Evidence

Bay (Residential).

See Exhibit “I,” attached to WEBCOR’S
RIN.

35. PLAINTIFF admits in its TAC, the
following:

“On or about December 5, 2003, a Mutual
Benefit Agreement Between Joint Owners
of Building (Mission Bay Mixed Use
Residential/Commercial Block N2
(“MBA”) was recorded .. . The parties
were defendant CATELLUS THIRD
AND KING, LLC and defendant
THIRD[AND KING INVESTORS LLC

. Plaintiffs predecessor, the Mission
Place residential Community Association.

On or avout November 9, 2004, the
Articles of Incorporation of Mission Place
Residential Community Association were
filed with the Sccretary of State for the
State of California. .. .

On or about December 28, 2004, in the
official records of the City and County of
San Francisco, said [the Mission Place
Residential Community Association]
caused to be record the Amended and
Restated Declaration of [CC&Rs] and
Reservation of Easements for Mission
Place (Residential). ...

On or about May 2, 2005, an Amendment
of Articles of Incorporation was filed to
change the name of the Mission Place
Residential Association to the BEACON
ASSOCIATION.”

TAC, at I 10-14, attached as Exhibit “A”
to Basilice Decl.

35.

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Response and Supporting Evidence

36. WEBCORK did not intend that the
BEACON ASSOCIATION, the
COMMERCIAL ASSOCIATION or the
MEMBEE'S be third party beneficiaries to
the WEBCOR contract.

Brians Deel. at { 14.

36.

37. WEBCOR did not intend that the
BEACON ASSOCIATION, the
COMMERCIAL ASSOCIATION or the
MEMBERS be third party beneficiaries to
the any of the SUBCONTRACTS.

Brians Decl. at § 15.

37.

38. The attorney’s fee provision in the
WEBCOR contract states, in relevant part:
“In any proceeding brought by one party
hereto against the other to enforce or
interpret the terms of the Contract
Document ..., the prevailing party in such
proceeding shall be entitled to an award of
the reasonable fees and disbursements of
its attorneys... .”

Brians Decl, at 416; see also, Exhibit
*B,” at 414.15, attached to Brians Decl.
(Emphasis added.)

38.

39. The WEBCOR contract states, that “[i]n
any proceeding brought by one party
hereto against the other to enforce or
interpret the terms of the Contract
Document ..., the prevailing party in such
proceeding shall be entitled to an award of
the reasonable fees and disbursements of
its attorneys... .”

Brians Decl. at $17; see also, Exhibit
“B,” at 14.11, attached to Brians Decl.
(Emphasis added.)

39.

40. MISSION PLACE’s Purchase Agreement
for the units, as demonstrated by an
exemplar of one the Agreements, did not
include any such assignment of the
WEBCOF. contract.

40.

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Kaplan Decl. at 79.

41. At the time the SUBCONTRACTORS
entered into their respective subcontracts
with WEBCOR concerning the
PROJECT, it was their understanding that
the residential portion of the PROJECT
was intended to be apartments that would
be rented ¢o tenants.

SUBCONTRACTORS’ Deel, 5 and 6.

41,

42.None of the agreements between
SUBCONTRACTORS and WEBCOR
pertaining to the PROJECT mention or
reference the following: (a) Plaintiff
Beacon Residential Community
Association or any __ predecessor
association(s); (b) the Beacon
Commercial Owners’ Association or any
predecessor association(s); (c) the 595
individual unit owners identified in
Plaintiff's Third Amended Complaint; (d)
Mission Place Residential Community
Association or any _ predecessor
association; (€) any homeowner
association; (f) any Covenents, Conditions
and Restrictions (“CC&R’s); and/or (g)
that any type of organization or
association similar to the foregoing
associations and organizations would be
created, or were in existence.

SUBCONTRACTORS’ Decl. at {6 and
7. :

42.

43, At the time the SUBCONTRACTORS
entered into the subcontracts with
WEBCOR concerning the PROJECT,
they were unaware that Third and King
Investors, LLC (“TKL”), or any of the
Catellus Parties, which include Catellus
Development Corp., Catellus Corp.,
Catellus Operating LP, Catellus Urban
Development Corp., Catellus Commercial
Development Corp., Catellus Third and
King, LLC, and Prologis (collectively
“CATELLUS PARTIES”), were planning

to_record any CC&R’s and create a

43.

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residential and/or commercial association.

SUBCONTRACTORS’ Decl. at [7 and
3. .

44.

The SUBCONTRACTORS had no | 44.
knowledge when they entered into the
subcontracts with WEBCOR concerning
the PROJECT, that TKL or any of the
CATELLUS PARTIES would sell the
PROJECT to MISSION PLACE, LLC, or
any other ‘entity.

SUBCONTRACTORS’ Decl. at ] 8 and
9. ‘

45.

At the time the SUBCONTRACTORS | 45.
entered into the subcontracts and other
agreements with WEBCOR_ concerning
the PROJECT, the SUBCONTRACTORS
were unaware of any of the identities of
the future purchasers of the units in the
PROJECT (the “MEMBERS”).

SUBCONTRACTORS? Decl. at 9 and
10.

46.

At the time the SUBCONTRACTORS | 46.
entered into their respective subcontracts
with WEBCOR concerning the
PROJECT, the SUBCONTRACTORS
were unaware of the identities of the
purchasers of the commercial spaces, or
that TKL; the CATELLUS PARTIES, or
MISSION PLACE intended to sell any of
the commercial spaces.

SUBCONTRACTORS? Decl. at § 10 and
11. :

47,

The SUBCONTRACTORS did not intend | 47.
for the following entities, individuals, and
associations to be third party beneficiaries
to any of the agreements between the
SUBCONTRACTORS and WEBCOR
pertaining to the PROJECT: (a) Plaintiff
Beacon Residential Community
Association or any _ predecessor
association(s): (b) the Beacon

98908

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SUBCONTRACTORS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT
OF THEIR MOTION FOR SUMMARY ADJUDICATION
CGC08-478453Undisputed Material Facts and Supporting
Evidence

Response and Supporting Evidence

Commercial Owners’ Association or any
predecessor association(s); (c) the 595
individual unit owners identified in
Plaintiff's Third Amended Complaint; (d)
Mission Place Residential Community
Association or any predecessor
association; (c) any homeowner
association; and/or (g) any type of
organization or association similar to the
foregoing associations and organizations
that would be created, or were in
existence.

SUBCONTRACTORS’ Deel. at {12 and
13.

48.The SUBCONTRACTORS further did

not intend for any of the CC&R’s of any
of the foregoing organizations and/or
associations to reflect that the
organization and/or association was to be
a third party beneficiary to any
subcontracts or other agreements between
the SUBCONTRACTORS AND
WEBCOR.

SUBCONTRACTORS?’ Decl. at {12 and
13.

48,

IBCONTRAC' > Decl, at 113 and

49. The attorney’s fee provision was never

intended to apply to, or be incorporated
into, the following entities, individuals,
and associations: (a) Plaintiff Beacon
Residential Community Association or
any predecessor association(s); (b) the
Beacon Commercial Owners’ Association
or any predecessor association(s); (c) the
595 individual unit owners identified in
Plaintiff's Third Amended Complaint; (d)
Mission Place Residential Community
Association or any — predecessor
association; (e) any homeowner
association; (f) any CC&R’s; and/or (g) or
that any type of organization or
association similar to the foregoing
associations and organizations would be
created, or were in existence.

49,

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SUBCONTRACTORS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT

OF THEIR MOTION FOR SUMMARY ADJUDICATION
98908

CGC08-478453Undisputed Material Facts and Supporting
Evidence

Response and Supporting Evidence

14.

50. Any attorney’s fee provision contained in
any of the subcontracts between the
SUBCONTRACTORS and WEBCOR
concerning the PROJECT, was only
intended to apply to the parties to the
contract. The attorney’s fee provision was
never intended to apply to, or be
incorporated into, the following entities,
individuals, and associations: (a) Plaintiff
Beacon Residential Community
Association or any predecessor
association(s); (b) the Beacon
Commercial Owners’ Association or any
predecessor association(s); (c) the 595
individual unit owners identified in
Plaintiff's Third Amended Complaint; (d)
Mission Place Residential Community
Association or any predecessor
association; (e) any homeowner
association; (f) any CC&R’s; and/or (g) or
that any type of organization or
association similar to the foregoing
associations and organizations would be
created, or were in existence.

SUBCONTRACTORS’ Decl. at § 13 and
14. :

50.

51, MISSION PLACE, LLC, the entity which
bought the PROJECT, was not even
created until 2004 which was many years
after the subcontractors entered into their
respective subcontracts with WEBCOR.

See contracts between WEBCOR and
SUBCONTRACTORS attached to the
declarations of the SUBCONTRACTORS
as Exhibits A and B.

51.

52. MISSION. PLACE LLC purchased the
PROJECT in approximately October 14,
2004, which was many. years after the
subcontractors entered into _ their
respective subcontracts with WEBCOR.

See contracts between WEBCOR and
SUBCONTRACTORS attached to the

32,

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SUBCONTRACTORS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT

OF THEIR MOTION FOR SUMMARY ADJUDICATION
98908

CGC08-478453w

Oo om ID

10
1
12
13
14
15
16
7
18
19
20
2
22
23
24
a5
26
27
28

Undisputed Material Facts and Supporting Response and Supporting Evidence
Evidence
declarations of the SUBCONTRACTORS
as Exhibits A and B.
DATED: November 20, 2012 SELLAR HAZARD MANNING FICENEC & LUCIA
BRENT F. BASILICO
Attorney For Defendants and Cross-Defendants,
Cupertino Electric, Inc.; Creative Masonry, Inc.; Carefree
Toland Pools, Inc.; J.W. McClenahan, Inc.; Van-Mulder
Sheet Metal, Inc.; N.V. Heathorn, Inc.; Critchfield
Mechanical, Inc.; Blue's Roofing Company; West Coast
Protective Coatings; Allied Fire Protection; F. Rodgers
Corporation, Western Roofing Service
-18-
SUBCONTRACTORS’ SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT
OF THEIR MOTION FOR SUMMARY ADJUDICATION
98908 CGC08-478453