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

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Jul-17-2012 3:43 pm

Case Number: CGC-08-478453
Filing Date: Jul-17-2012 3:39
Filed by:

Juke Box: 001 Image: 03688414
MEMORANDUM OF POINTS AND AUTHORITIES

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

001003688414

Instructions:
Please place this sheet on top of the document to be scanned.1 | Charles A. Hansen (Bar No. 76679)
Peter J. Laufenberg (Bar No. 172979)
2 || WENDEL, ROSEN, BLACK & DEAN LLP
1111 Broadway, 24th Floor
3 | Oakland, California 94607-4036
Telephone: (510) 834-6600
4 | Facsimile: (510) 834-1928

5 | Steven M. Cvitanovic (Bar No. 168031)

Zachary W. Shine (Bar No. 271522)

6 | HAIGHT BROWN & BONESTEEL LLP
y71 Stevenson Street, 20th Floor

7 || San Francisco, California 94105-2981

Telephone: (415) 546-7500

8 | Facsimile: (415) 546-7505

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Attorneys for Defendants and Cross-Complainants Mission Place LLC; Mission Place
Mezz Holding LLC; Mission Place Mezzanine LLC; Mission Place Partners LLC;
Centurion Real Estate Investors IV, LLC; and Centurion Real Estate Partners, LLC (sued
in its own name and erroneously sued as Centurion Partners LLC)

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12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 FOR THE COUNTY OF SAN FRANCISCO
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15 | BEACON RESIDENTIAL COMMUNITY ) Case No. CGC 08-478453
ASSOCIATION,
16
Plaintiff, SUPPLEMENTAL MEMORANDUM
17 OF POINTS AND AUTHORITIES IN
v. SUPPORT OF MISSION PLACE’S
18 MOTION FOR SUMMARY
CATELLUS THIRD AND KING LLC, et ) ADJUDICATION

19 jal.,

20 Defendants. Date: August 24, 2012

Time: 10:00 a.m.

Dept: 304

Judge: Hon. Richard A. Kramer

AND RELATED CROSS-ACTIONS

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INTRODUCTION

Defendants and Cross-Complainants Mission Place LLC and its affiliated entities!
submit the following Supplemental Memorandum of Points and Authorities in support of
their Motion for Summary Adjudication against Webcor Construction, Inc., dba Webcor
Builders, Inc. (““Webcor”) and HKS, Inc., doing business in California as HKS Architects,
Inc. (“HKS”) (hereinafter collectively referred to as “Cross-Defendants”).

Over a year ago, the Court continued the hearing on this motion to allow for
discovery of the “mutual intent” — not the “undisclosed subjective intent” — of the parties
in executing the various assignments and consents. That discovery has confirmed exactly
what the documents clearly say, namely, that Third and King Investors LLC (“TKI”) and
Mission Place LLC intended to enter into a non-exclusive assignment of all of TKI’s rights
(but not obligations) under the contracts with Webcor and HKS.

Moreover, the discovery has confirmed that Webcor and HKS: (1) were provided
with the assignment documents so they could review the terms of the assignment; (2) were
offered an opportunity to make substantive changes to the assignments and consents, yet
apparently failed to make any comment, changes or register any objections to the language
they now complain of; and, (3) failed to disclose or discuss with TKI any subjective belief
regarding their interpretation of the assignment or consent.

The assignments and consents are clear and straightforward. Webcor and HKS are
sophisticated business entities who had in-house counsel review and approve the
documents for signature. Webcor and HKS knew what they were signing and had a full
three months in 2004 to raise questions and concerns about the documents, yet they utterly
failed to do so. Mission Place respectfully requests that the Court not sanctify Webcor’s

and HKS’ gamesmanship by granting this Motion for Summary Adjudication.

" The affiliated entities are: Mission Place Mezz Holding LLC; Mission Place
Mezzanine LLC; Mission Place Partners LLC; Centurion Real Estate Investors IV, LLC;
and Centurion Real Estate Partners, LLC (sued in its own name and erroneously sued as
Centurion Partners LLC). Mission Place LLC and its affiliated entities will be collectively
referred to as “Mission Place” or “Cross-Complainants”.

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<> SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES

1 Extrinsic Evidence as to the Assignments and Consents Must Be Excluded

A. The Parol Evidence Rule Bars Extrinsic Evidence

The parol evidence rule bars extrinsic evidence (oral or written) of prior or
contemporaneous agreements to add to or modify the terms of an unambiguous
“integrated” written instrument. Masterson v. Sine (1968) 68 Cal. 2d. 222, 225; Los
Angeles Unified School Dist. V. Great American Ins. Co. (2008) 163 Cal. App. 4th 944,
957; Pacific State Bank v, Greene (2003) 110 Cal. App. 4th 375, 379; CCP § 1856(a).
Once it is found that the parties intended the writing to be the final expression of their
agreement, contrary expressions of intent are excluded. Brant v. California Dairies (1935)
4 Cal. 2d 128, 134; CCP § 1856(a); Hayter Trucking, Inc. v. Shell Western E & P, Inc.
(1993) 18 Cal. App. 4th 1, 15. The only limited exceptions where extrinsic evidence is
admissible are circumstances where the party offering the evidence can show the contract
language is reasonably susceptible to a different meaning or the evidence will explain or
aid in the interpretation of an ambiguous writing. Denver D. Darling, Inc. v. Controlled
Environments Const., Inc. (2001) 89 Cal. App. 4th 1221, 1236; Hedging Concepts, Inc. v.
First Alliance Mortgage Co. (1996) 41 Cal. App. 4th 1410, 1416. However, while

extrinsic evidence is admissible to show what the parties meant by what they said, it is still

19 | inadmissible to show the parties meant something other than what they said. Larsen v.

20 | Johannes (1970) 7 Cal. App. 3d 491, 500. This is because parties to a transaction must be

21 |able to clearly express their intent regarding the nature and scope of their legal relationship

22 | and be able to rely on the legal certainty of that expression. Banco Do Brasil, S.A. v.

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Latian, Inc. (1991) 234 Cal. App. 34 973, 1011.

Here, HKS and Webcor argue they did not understand the terms of the agreements
and did not consent to the assignment of all of TK1’s rights, including indemnity rights, to
Mission Place. However, the language of the Assignments of Contractor and Architect
Agreements, and the Consents thereto, are fully integrated agreements, the terms of which

are neither ambiguous nor reasonably susceptible to a different meaning. The Assignment

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of Contractor Agreement plainly states TIXI assigns to Mission Place “all of its right, title
and interest in and to ... that certain Construction Agreement dated August 24, 2001 by
and between Third and King and Webcor Construction, Inc., dba Webcor Builders ...”
(Fact No. 5)? (emphasis added) Additionally, the Assignment of Architect Agreement
states TKI assigns to Mission Place “all of Third and King’s right, title and interest in and
to all contracts ... to which Third and King is a party or assignee and relating to the
preparation of the Plans with architects, engineers and any other party, including, without
limitation, that certain contract dated July 25, 2000 (the “Contract”) with HKS Architects,
Inc. ...” (Fact No. 15) (emphasis added)

On their face, these assignments clearly and unambiguously transfer “all right, title
and interest” in the Webcor and HKS contracts to Mission Place. This includes the right to
seek indemnity and defense from Cross-Defendants under those contracts. Because the
Assignments are fully integrated writings expressing the final intent of the parties,
evidence of the Cross-Defendants’ contrary intent should be excluded. Mission Place must
be allowed to rely on the certainty of the parties’ expression.

B. The Subjective Intent of the Parties is Immaterial.

It is a “settled principle of the law of contract that the undisclosed intentions of the
parties are, in the absence of mistake, fraud, etc., immaterial; and that the outward
manifestation or expression of assent is controlling.” Brant v. California Dairies, Inc.
(1935) 4 Cal.2d 128, 133; Schultz v. County of Contra Costa (1984) 157 Cal. App. 3d 242,
249. As such, “[w]here the terms of an agreement are set forth in writing, and the words
are not equivocal or ambiguous, the writing or writings will constitute the contract of the
parties, and one party is not permitted to escape its obligations by showing he did not
intend to do what his words bound him to do.” Brant, 4 Cal. 2d 128, 134.

In Brant v. California Dairies, Inc., the seminal California case dealing with

subjective intent and the parol evidence rule, plaintiff dairy farmer brought a breach of

? Please see the Amended Separate Statement of Undisputed Material Facts filed concurrently herewith.

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conteact action against defendant dairy marketing company. In support of its argument
that it was not bound by the terms of the contract, the defendant offered testimony of its
vice-president, in which he testified he did not interpret the contract language the same
way the plaintiff did. /d. at 132 — 133. The California Supreme Court, in ruling in favor of
the plaintiff, dismissed defendant’s testimony stating it amounted “to nothing more than a
statement of what [the vice-president] personally believed the agreement of the parties to
be.” Jd. at 133. The court reasoned the defendant’s personal belief was inconsequential
and inadmissible under the parol evidence rule. /d.

Here, Cross-Defendants allege, contrary to the express language of the assignments,
they did not understand the assignments included indemnity rights, and thus, they did not
consent to the assignments. However, any concerns Webcor and HKS may have had
regarding the assignment of indemnity rights were kept entirely in house. Nonetheless,
Cross-Defendants now wish to offer extrinsic evidence of their undisclosed intentions in an
effort to escape their indemnity and defense obligations under the contracts. The well
settled principles of contract law forbid such tactics.

John Bowles, the Chief Legal Officer of Webcor, admits he never communicated
Webcor’s interpretation of the scope of the Assignment and Consent to anyone. (Fact No.
6) Instead, each statement made by Mr. Bowles in his Declaration, which is heavily relied
upon by Webcor in its Opposition, was based on Mr. Bowles personal beliefs regarding the
scope of the Assignment. (Fact No. 6) During his deposition, each time Mr. Bowles was
asked whether he outwardly communicated his belief that indemnity rights were not
assigned from TKI to Mission place, Mr. Bowles repeatedly responded “I don’t believe
that I did.” (Fact No. 6) Webcor’s undisclosed subjective intent must not be considered in
determining whether the Assignment properly transferred TKI’s rights to Mission Place.

HKS also argues it did not “intend, understand, believe or agree” to the assignment
of any indemnity rights or obligations. (See HKS’ Opposition to Mission Place’s Motion

for Summary Adjudication, p. 6) This argument is solely supported by the unsubstantiated

testimony of HKS’s own employee, Jack Price. In his Declaration, Mr. Price contends
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that, at the time he executed the Consent ar] Agreement, he-did not “intend” to agree to
the assignment of indemnity rights, nor did he “understand” the language of the
assignment to encompass any obligation on the part of HKS to assign indemnity rights to
Mission Place. (See Declaration of Jack Price in support of HKS, Inc.’s Opposition, p. 4)
However, HKS never once outwardly objected to the assignment of indemnity rights in the
Consent and Agreement. (Fact No. 16) HKS is a sophisticated multi-national business
whose past projects include Cowboy’s Stadium and Dodger’s Stadium as well as numerous
hotels, university facilities and corporate buildings across the globe. (See HKS, Inc.’s
website at http://hksinc.com/) As an international architecture firm with projects located in
1,178 cities throughout 77 countries that employs more than 900 experienced
professionals, HKS is undoubtedly experienced in contract drafting and interpretation. If
HKS was really confused about the terms of the Assignment and Consent, these issues
should have been raised at the time of execution. Instead, these concerns were not raised
until after Mission Place was forced to file its Motion for Summary Adjudication.
Evidence of HKS’s subjective intent must be excluded as it is immaterial in determining

whether TKI’s indemnity rights were assigned to Mission Place.

II. The Parties Agreed to Assign to Mission Place Ali Rights Contained in the
Contracts Between TKI and Webcor / HKS

Even if the Court allows extrinsic evidence regarding the parties’ intentions in
entering into the Assignments and Consents, the Court should still find that TKI properly
assigned all rights in its contracts, including the right to seek indemnity and defense from
Webcor and HKS, to Mission Place.

A. The Assignments of Contractor and Architect Agreements

In December 2004, Mission Place LLC purchased the Beacon, and in connection
with that purchase, and pursuant to the Assignment of Contractor Agreement, TKI
assigned to Mission Place LLC all “right, title, interest in and to” the Webcor Agreement
and all warranties by Webcor. (Fact No. 5) Around the same time, TKI also assigned to

Mission Place LLC, as successor-in-interest to TKI, all “right, title and interest” in its

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1} contract with HKS. (Fact No. 15) Webcor and HKS now argue the Assignments only
transferred warranties and guarantees and somehow did not extend to indemnity rights.
These arguments are directly contradicted by the language of the Assignments, as well as
the deposition testimony of representatives of both TKI and Mission Place.

Both parties to the Assignments, TKI and Mission Place, understood indemnity

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6 | rights were included in the assignment of rights to Mission Place. (Facts Nos. 5 and 15)
7 In his deposition, Keith Anderson, Senior Vice President of Catellus, asserts that TKI

8 | intended the assignments to be full assignments. (Facts Nos. 5 and 15) He explains that
9 | TKI’s intent in signing the Assignment of Architect Agreement and the Assignment of
10 | Contractor Agreement was to assign the contracts, including all obligations HKS and

11 | Webcor had under those contracts, to Mission Place. (Facts Nos. 5 and 15) The “non-

12 | exclusive” language was not meant to limit the rights transferred to Mission Place in any

13 | way, but was instead merely an attempt by TKI to reserve its rights. (Facts Nos. 5 and 15)

14 Mission Place had an identical understanding of the Assignments. John Tashjian,
15 | who was intimately involved in the negotiation and execution of the Assignments on
16 | behalf of Mission Place, explains that by classifying the assignment of rights from TKI to

17 | Mission place as “non-exclusive”, the parties were attempting to share the rights under the

18 | contract. That way, the benefits would go to both TKI and Mission Place. (Facts Nos. 5
19 } and 15) Mission Place also understood the term “with a reservation of all rights” to mean
20 | that TKI would reserve their rights under the contracts while also transferring those same
21 | rights to Mission Place. (Facts Nos. 5 and 15) It was always very clear to Mission Place
22 | that they were receiving all rights under the contracts. (Facts Nos. 5 and 15) Mr. Tashjian
23 | also emphasized that the assignments of the Architect Agreement and Contractor

24 [seen were an integral part of Mission Place’s purchase of the project. In fact, the
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Assignments “were the linchpin. They were the foundation of the transaction.” (Facts

26 |“ 5 and 15) Without the assignments, Mission Place would not have purchased the

27 | project. (Facts Nos. 5 and 15).
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Based on the foregoing, it is clear Mission Place and TKd both intended that TKI
would assign all of its rights under the Webcor and HKS contracts to Mission Place. As
such, even if extrinsic evidence is allowed, the evidence clearly supports Mission Place’s
position that all rights, including indemnity rights, were assigned to Mission Place.

B. The Consents and Agreements

On or about December 16, 2004, and December 13, 2004, respectively, Webcor and
HKS each executed a “Consent and Agreement” pursuant to which Cross-Defendants
expressly consented to the assignment of the Webcor and HKS Agreements to Mission
Place, affirmed that the contracts remained in full force and effect, affirmed that the Webcor
and HKS Agreements constituted valid and binding obligations of Webcor and HKS, and
affirmed that they were enforceable against Webcor and HKS in accordance with their
terms. (Facts Nos. 6 and 16) Webcor also acknowledged that Mission Place LLC was
TKI’s successor ‘Company.”” (Fact No. 6) Similarly, HKS acknowledged that Mission
Place LLC was the “successor Owner (as defined in the Contract) under the Contract.”
(Fact No. 16) Webcor and HKS now argue they did not consent to the assignment of all
rights to Mission Place. This argument is misguided as the Consents, which were reviewed
and signed by both parties, clearly encompass all rights assigned to Mission Place.

The language of the Webcor Consent and Agreement clearly states “[t]he
undersigned Contractor [Webcor] hereby consents to the foregoing Assignment of
Contractor Agreement and agrees to perform pursuant to the Contract.” (Fact No. 6)
Webcor was given ample opportunity to review the contract language and make any
changes it saw fit. On November 5, 2004, Catellus sent Webcor the following email,
which included drafts of both the Assignment and Consent and Agreement, and asked
Webcor to review the documents and provide feedback. (Fact No. 6)

From: Blank, Kathleen [mailto:Kathleen Blank@catellus.com]

Sent: Friday, November 05, 2004 3:26 PM

To: John Bowles
Subject: FW: Mission Place - Assignments Architect/Contractor

John,

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As giscussed, attached is the revised Assignment. Please review and let ne know if you have
questions or, if none, please attach Exhibits, have executed and return to me at your earliest
convenience. Thanks very much.

Kathleen Blank

(415) 425-1343

Three days later, Webcor’s attorney, Mr. Bowles, responded stating he was
“agreeable with all the modifications” except certain language regarding contract
obligations with future homeowners. (Fact No. 6) Mr. Bowles made no reference to
indemnity rights nor did he attempt to add language limiting the rights transferred to
Mission Place in any way. If Webcor was actually harboring concerns regarding the
assignment of indemnity rights, those concerns should have been raised following
Webcor’s review of the documents and prior to its execution of the Consent and
Agreement. The language of the documents, together with the testimony of Mr. Bowles
and Mr. Anderson, clearly shows Webcor consented to the assignment of all rights under
the contract, including indemnity rights.

HKS also argues it did not consent to the assignment of indemnity rights. In
support of this argument, HKS argues that “when HKS received the ‘Consent and
Agreement’, the ‘Assignment of Architectural Agreement’” was not attached. (See HKS,
Inc.’s Opposition to Mission Place’s Motion for Summary Adjudication, p. 6) This
statement is blatantly false. First, Mr. Anderson testified it was Catellus’ practice to send
the Assignment of Architect Agreement to HKS along with the Consent and Agreement.
(Fact No. 16) Second, numerous emails between representatives of HKS and counsel for
Catellus not only discuss the Assignment, but also include copies of the Assignment and
Consent as attachments to the emails. On October 26, 2004, HKS’s Vice President, Neal
Vincent, sent an email to Tim Carey of Catellus that included a revised Assignment
document with HKS’s changes and comments in it. (Fact No. 16) Additionally, on
November 8, 2004, Kathleen Blank of Catellus sent the following email to Craig Williams,
Chief Legal Officer of HKS, with attached “redlined and clean copies of the revised
Assignment, Consent and Agreement.” (Fact No. 16)

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From: Blank, Kathleen [mailto:Kathleen_Blank@catellus.com] ”

Sent: Monday, November 08, 2004 1:33 PM

To: Williams, Craig

Subject: Mission Place - Assignment of Architect

Craig,

Attached are redlined and clean copies of the revised Assignment, Consent and
Agreement. | understand that you are out until tomorrow. Could you please give me a call
to discuss when you return to the office. Thanks very much for your assistance.

| Kathleen Blank

(415) 425-1343

Mr. Williams reviewed the documents and responded the following day, stating “I

|have added to and modified, your redline.” (Fact No. 16) Additionally, on December 10,

2004, Ms. Blank sent Mr. Williams another email containing copies of both the Consent

| and Assignment, and requested that Mr. Williams review the documents and respond with

any comments or revisions. (Fact No. 16) HKS’s argument that it did not receive the

Assignment of Architect Agreement along with the Consent and Agreement lacks all

factual support and appears to be nothing more than a ploy to create a triable issue of fact.

j Ul. Webcor and HKS Have a Duty to Defend Mission Place

In Crawford et al. v. Weather Shield Mfg. Inc., 44 Cal. 4th 541 (2008), the

| california Supreme court held that the indemnitor was contractually required to indemnify

the indemnitee against all claims for damages growing out of the execution of the

| indemnitor’s work and was further required to defend any suit or action brought against the

indemnitee founded upon the claim of such damage. The court also observed that Civil
Code Section 2778(4) “places in every indemnity contract, unless otherwise [provided], a

| éuty to assume the indemnitee’s defense, if tendered, against all claims ‘embraced by the

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indemnity’,” regardless of the outcome of the litigation. Id. at 557 — 558.
| In their contracts with TKI, Webcor and HKS expressly agreed to defend,

indemnify and hold TKI harmless from claims involving their work. (Facts Nos. 2 and 14)
In connection with Mission Place’s purchase of the Beacon, TKI assigned to Mission place

all right title and interest in the Webcor and HKS contracts. (Facts Nos. 5 and 15) Webcor

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and HKS each subsequently consented to the assignment of their contracts to Mission
| Place by way of the Consent and Agreements. (Facts No. 6 and 16) In 2008, the Beacon
RCA filed this action against Mission Place alleging various construction and design
defects. (Facts Nos. 10 and 20) Because Beacon RCA’s allegations of construction and
design defects arise from the scope of work of Webcor and HKS, Mission Place tendered
its defense to Webcor and HKS pursuant to the indemnity and defense obligations in the
assigned contracts. (Facts Nos. 10 and 20) To date, Webcor and HKS have not accepted
Mission Place’s tenders and have not defended Mission Place. (Facts Nos. 11 and 21) As
such, pursuant to the reasoning in Crawford et al. v. Weather Shild Mfg. Inc. (2008) 44
Cal. 4th 541, Webcor and HKS have an immediate duty to defend Mission Place.
}IV. Conclusion

The facts are clear. Webcor and HKS expressly agreed to indemnify and defend
TKI from all claims implicating their work. TKI expressly assigned its contract rights to
Mission Place, and Webcor and HKS both consented to the assignment. Webcor and HKS
cannot manufacture a triable issue of fact by introducing “evidence” of their supposed

intent back at the time of contracting. Where, as here, the express language of the contract

is clear and unambiguous, extrinsic “evidence” of the parties’ subjective intent must be

excluded. However, even if such evidence is allowed, the evidence shows that all parties
intended that Mission Place receive all of TKI’s rights under its contracts. As there is no
triable issue of fact regarding the duty to defend Mission Place, this Court should enter

summary adjudication in Mission Place’s favor as to the Seventh Cause of Action.

Dated: July 17, 2012 HAIGHT BROWAYS
| By:
Zachary W.S n
Attorneys for Defendants
Mission Place LLC, et al.
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Charles A. Hansen (Bar No. 76679)

Peter J. Laufenberg (Bar No. 172979) JUL Tf ge
WENDEL, ROSEN, BLACK & DEAN LLP
1111 Broadway, 24th Floor CLERK OF TH

Oakland, California 94607-4036 By:
Telephone: (510) 834-6600
Facsimile: (510) 834-1928

Steven M. Cvitanovic (Bar No. 168031)
HAIGHT BROWN & BONESTEEL LLP
71 Stevenson Street, 20th Floor

San Francisco, California 94105-2981
Telephone: (415) 546-7500

Facsimile: (415) 546-7505

Attorneys for Defendants and Cross-Complainants Mission Place LLC; Mission Place
Mezz Holding LLC; Mission Place Mezzanine LLC; Mission Place Partners LLC;
Centurion Real Estate Investors IV, LLC; and Centurion Real Estate Partners, LLC (sued
in its own name and erroneously sued as Centurion Partners LLC)

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY ) Case No. CGC 08-478453
ASSOCIATION, ;
Plaintiff, DECLARATION OF ZACHARY W.
SHINE IN SUPPORT OF MISSION
v. PLACE’S MOTION FOR SUMMARY
) ADJUDICATION
CATELLUS THIRD AND KING LLC, et }
al.,
)
Defendants. ) Date: August 24, 2012
Time: 10:00 a.m.
Dept: 304
AND RELATED CROSS-ACTIONS } Judge: Hon. Richard A. Kramer
1. I, Zachary W. Shine, declare as follows:
2. lam an attorney at the law firm of Haight Brown & Bonesteel, L.L.P.

counsel of record for Defendants and Cross-Complainants Mission Place LLC, Mission
Place Mezzanine LLC, Mission Place Mezz Holdings LLC, Mission Place Partners LLC,

Centurion Real Estate Investors IV, LLC, and Centurion Real Estate Partners, LLC (sued

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zu29-0000032, +~«-: DECLARATION OF ZACHARY W. SHINE ISO MISSION PLACE’S MOTION FOR
3960719.1 SUMMARY ADJUDICATION1 | in its own name and erroneously sued as Centurion Partners LLC) (hereinafter collectively

2 | “Mission Place” or “Cross-Complainants”) in the above-captioned action. | am a member

3 | in good standing of the State Bar of California.

4 3. I have personal knowledge of the facts set forth in this Declaration and, if

5 | called as a witness, I could and would testify competently to such facts under oath. I make

6 | this declaration in support of Defendants’ Motion for Summary Adjudication against

7 | Webcor Construction, Inc., dba Webcor Builders, Inc. (“Webcor”) and HKS, Inc., doing

8 || business in California as HKS Architects, Inc. (“HKS”) (hereinafter collectively referred to
9 | as the “Cross-Defendants”)

10 4. Keith Anderson was deposed in this matter on March 21, 2012 as the

11 | Catellus Related Defendants’ person most knowledgeable. Mr. Anderson was the Senior

12 | Vice President of Catellus at the time the Assignment of Architect Agreement, the

13 | Assignment of Contractor Agreement, and the Consent and Agreements thereto, were

14 | negotiated and executed. True and correct copies of pages 52 to 54, 69, 72, 75, 77 and 78

15 of Mr. Anderson’s deposition transcript are attached as Exhibit 15.'

16 5. John Bowles, was deposed in this action on April 26, 2012 as Webcor’s

17 | person most knowledgeable. Mr. Bowles was the Chief Legal Officer of Webcor at the

18 | time the Assignment of Contractor Agreement and Consent and Agreement were

19 | negotiated and executed. True and correct copies of pages 12, 13, and 17 to 19 of Mr.

20 | Bowles’s deposition transcript are attached as Exhibit 16.

21 6. John Tashjian, was deposed in this action on April 27, 2011 and April 24,

22 |2012 as Mission Place’s person most knowledgeable. Mr. Tashjian was involved in the

23 | negotiation and execution of the Assignment of Contractor Agreement, the Assignment of

24 | Architect Agreement, and the Consent and Agreements thereto. True and correct copies of

25 | pages 59 to 61, 63, 103, 105 and 143 of Mr. Tashjian’s deposition transcript are attached as

26 | Exhibit 17.

27
28 \
Please refer to the Supplemental Compendium of Exhibits filed concurrently herewith.
LAW OFFICES: 2
HAIGHT, BROWN & DECLARATION OF ZACHARY W. SHINE ISO MISSION PLACE’S MOTION FOR,

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7 Fancisa | 3960019 1 SUMMARY ADJUDICATIONCe end DHA BRB WN =

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LAW OFFICES.

HAIGHT, BROWN &
BONESTEEL, LLLP.
San Francisco

7. Mission Place served Requests for Admission on HKS, Inc. True and correct
copies of HKS, Inc.’s Responses to Mission Place’s Requests for Admission, served on
Mission Place June 22, 2012, are attached as Exhibit 23.

I declare under penalty of perjury under the laws of the State of California that the
[resin is true and correct.

Executed on July 17", 2012, at San Francisco, California.

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suzo.ooos?-- DECLARATION OF ZACHARY W. SHINE ISO MISSION PLACE’S MOTION FOR
3960719.1 SUMMARY ADJUDICATION