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  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview
  • BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al CONSTRUCTION document preview 
						
                                
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Christian P. Lucia (SBN 203567)

Brent F, Basilico (SBN 197159) ELECT!
SELLAR HAZARD MANNING FICENEC & LUCIA CTRONICALLY
A Professional Law Corporation FILED
1800 Sutter Street, Suite 460 Superior Court of California,
Concord, CA 94520 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

Deputy Clerk
Attorneys 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

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
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, AND WESTERN
ROOFING SERVICE’S NOTICE OF
MOTION AND MOTION FOR
SUMMARY ADJUDICATION
AGAINST PLAINTIFF BEACON
RESIDENTIAL COMMUNITY
ASSOCIATION’S SEVENTH CAUSE
OF ACTION FOR THIRD PARTY
BENEFICIARY/BREACH OF
CONTRACTS AND SUBCONTRACTS
ALLEGED IN PLAINTIFF’S THIRD
AMENDED COMPLAINT

Documents Served and Filed Herewith:
1. Memorandum of Points and Authorities
2. Statement of Undisputed Material Facts

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NOTICE OF MOTION AND MOTION OF DEFENDANTS AND CROSS-DEFENDANTS’ FOR SUMMARY ADJUDICATION
PERTAINING TO PLAINTIFE’S SEVENTH CAUSE OF ACTION FOR THIRD PARTY BENEFICIARY/BREACH OF CONTRACT
98907 Case No. CGC08-4784533. 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]

TO ALL PARTIES AND THEIR RESPECTIVE COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on January 18, 2013, at 9:30 a.m., in Department 304 of the
above-captioned Court, located at 400 McAllister Street, San Francisco, California, 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”) will move, and hereby do move, 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.

SUBCONTRACTORS?’ motion will be based, and 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.

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NOTICE OF MOTION AND MOTION OF DEFENDANTS AND CROSS-DEFENDANTS’ FOR SUMMARY ADJUDICATION
PERTAINING TO PLAINTIFF'S SEVENTH CAUSE OF ACTION FOR THIRD PARTY BENEFICIARY/BREACH OF CONTRACT
98907 Case No. CGC08-478453UB Ww NHN

oo WD

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A. PLAINTIEF, inclusive of the Beacon Residential Community Association (the “BEACON
ASSOCIATION”), 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-
Cornplainant Webcor Construction, Inc., dba Webcor Builders (collectively “WEBCOR”).
At the time the SUBCONTRACTORS entered into the subcontracts with WEBCOR for the
pro‘ect 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.

This motion is based on this notice of motion and motion, the supporting mmemorandum of
points and authorities, the separate statement of undisputed material facts and supporting evidence, the
request for judicial notice, the declaration of Brent F. Basilico, the declarations of moving parties, the
pleadings and documents on file with the Court in this matter [including, but not limited to, the
motions for summary adjudication filed by WEBCOR and by Defendant and Cross-Defendant Anning-
Johnson Company (“ANNING-JOHNSON”)], and upon such further and additional evidence and

argument which may be presented at the hearing on SUBCONTRACTORS?’ motion.
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NOTICE OF MOTION AND MOTION OF DEFENDANTS AND CROSS-DEFENDANTS’ FOR SUMMARY ADJUDICATION
PERTAINING TC PLAINTIFFS SEVENTH CAUSE OF ACTION FOR THIRD PARTY BENEFICIARY/BREACH OF CONTRACT
98907 Case No. CGC08-478453vA & Ww NY +

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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 ANNING-
JOHNSON and WEBCOR in support of their motions for summary adjudication on the same cause of
action alleged in PLAINTIFF’s TAC, which will be heard concurrently with SUBCONTRACTORS’
motion.

DATED: November 20, 2012 SELLAR HAZARD MANNING FICENEC & LUCIA

—_— F-—=
Brent F. Basilico

Attorneys 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

-4-

NOTICE OF MOTION AND MOTION OF DEFENDANTS AND CROSS-DEFENDANTS” FOR SUMMARY ADJUDICATION
PERTAINING TO PLAINTIFF’S SEVENTH CAUSE OF ACTION FOR THIRD PARTY BENEFICIARY/BREACH OF CONTRACT
98907 Case No. CGC08-478453