Motion,Ex Parte: 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
Sep-27-2012 3:22 pm

Case Number: CGC-08-478453
Filing Date: Sep-27-2012 3:19
Filed by:

Juke Box: 001 Image: 03782858
SEPARATE STATEMENT OF FACTS

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

001C03782858

Instructions:
Please place this sheet on top of the document to be scanned.

qd‘Adam Brezine (SBN: 220852) &
adam. brezine@bryancave.com 5, &
Julien E, Capers (SBN: 275733) Tn &
julien.capers@bryancave.com S. Yo) We 2’
BRYAN CAVE LLP & Xeon oD
560 Mission Street, 25" Floor Bk Og ay, 4
+ . ae
San Francisco, CA 94105 ny
Tel: (415) 268-2000 QE %
Fax: (415) 268-1999 Be Y
age
Attorneys for Cross-Defendants
SOLUTIA INC.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
BEACON RESIDENTIAL COMMUNITY CASE NO. CGC 08-478453
ASSOCIATION,
Plaintiff, SEPARATE STATEMENT OF
UNDISPUTED FACTS IN SUPPORT OF
v. MOTION FOR SUMMARY JUDGMENT

OR SUMMARY ADJUDICATION OF

CATELLUS THIRD AND KING, LLC; et al CROSS-DEFEND SOLUTIA, INC.

Defendants. [Concurrently filed with Notice of Motion and

Motion; Memorandum in Support of Motion;

WINDOW SOLUTIONS, INC.,

Cross-Complainant,

SOLUTIA INC. and MOES 1-100, Inclusive,
Cross-Defendants.

1

and Declaration of Adam Brezine]

Date: December 14, 2012
Time: 9:30 a.m.
Dept.: 304

Cross-Complaint filed: March 21, 2011

Trial Date: February 4, 2013

Solutia Inc.’s Separate Statement of Undisputed Material Facts

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
Cross-Defendant Solutia Inc. (“Solutia”) submits the following separate statement of
undisputed material facts in support of its concurrently filed Motion for Summary Judgment against

Cross-Coinplainant Window Solutions, Inc. (“Window Solutions”).
UNDISPUTED FACTS IN SUPPORT OF SUMMARY JUDGMENT OR
SUMMARY ADJUDICATION
Undisputed Facts Supporting Summary Judgment On Entire Complaint

1 The “Performance Films” division of

* | Solutia manufactures and sells window
films. Declaration of Adam Brezine
(“Brezine Decl.”) Ex. A (Deposition of
Solutia PMK James Kinley (“Kinley
Dep.”) at 15:4-6).

2. | Solutia’s films division used to be a
separate entity known as CPFilms.
Brezine Decl. Ex. A (Kinley Dep.
18:24-20:7).

3. | The primary purposes for applying film
to a window in any given scenario are to
(1) reduce glare and (2) reduce solar
heat gain. Brezine Decl. Ex. A (Kinley
Dep. 66:23-25).

4. | In or about March, 2005, Window
Solutions — through its former owner
Bernie Bramante — approached Solutia
and asked to purchase window film that
was to be applied at the Beacon Project.
Brezine Decl. Ex. A (Kinley Dep. pp.
19-21).

5. | Bramante “already knew what film he
wanted, because, being a 3M dealer, he
had a product called Night Vision. The
equivalent of the Night Vision products
is [the Solutia] DR series products, so
he already knew what he wanted at that
point.” Brezine Decl. Ex. A (Kinley
Dep. 24:7-11).

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Solutia Inc.’s Separate Statement of Undisputed Material Facts
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Solutia was not involved in the decision
to apply film to the windows at the
Beacon, which had already been made
when Mr. Bramante contacted Solutia.
Brezine Decl. Ex. A (Kinley Dep. 17:5-
18; 21:14-19; 24:3-11; 79:3-10) & Ex. C
(RFA Resp. #s 2 & 4).

Solutia was not involved in the choice
of the film to be applied. Brezine Decl.
Ex. C (RFA Resp. #4).

When Window Solutions approached
Solutia it asked for the Solutia film that
most closely approximated the
unavailable 3M product they had
selected. Brezine Decl. Ex. A (Kinley
Dep. 21:14-19; 24:3-11).

In the words of Mr. Kinley, “That’s why
I say it was a very limited involvement;
he just wanted to buy our film.”

Brezine Decl. Ex. A (Kinley Dep.
22:13-14).

10.

Mr. Kinley never even went to the
Beacon in connection with this sale.
Brezine Decl. Ex. A (Kinley Dep.
23:15-18).

11.

Bramante “said he had already done all
of the work, had made the proposals,
everything.” Brezine Decl. Ex. A
(Kinley Dep. 24:1-2).

12.

Solutia does, on occasion, perform an
analysis of the glass in a building in
connection with a recommendation of
film, but it was not asked to and did not
do so for the Beacon Project. Brezine
Decl. Ex. A (Kinley Dep. 62:1-6).

13.

At no time did Solutia perform any
“technical analysis” of the installation of
the film at the Beacon. Brezine Decl.
Ex. A (Kinley Dep.103:1-4).

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Solutia Inc.’s Separate Statement of Undisputed Material Facts
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14.

Solutia sold and delivered the film to
Window Solutions sometime before
May 5, 2005. Brezine Decl. Exs. A
(Kinley Dep. 47:17-20), C (RFA
Response #3), and D, pp. 6-8 (standard
warranty form dated May 5, 2005 and
invoices).

15.

Window Solutions ordered
approximately 80,000 square feet of
window film, which was used to cover
approximately 1206 different windows
at the Beacon. Brezine Decl. Ex. A
(Kinley Dep. 22:8-9 and 80:15-81-1).

16.

Solutia was not involved in the
application of the film, and did not have
employees or contractors on site at the
Beacon at any time. Brezine Decl. Ex.
C (RFA Response #2) and Ex. A
(Kinley Dep. 17:5-13).

17.

Window Solutions’ PMK witness said
that he confirmed with the prior owner
that Window Solutions performed the
work at the Beacon, but that was the
extent of their conversation. Brezine
Decl. Ex. B (Murphy Dep. 22:10-14).

18.

A letter dated May 23, 2005, and
produced from the files of Mission Place
in this matter, suggests the standard
warranty agreement was slightly
modified for the film sold to Window
Solutions. Brezine Decl. Ex. E (Kinley
Ex. 499).

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19.

Under the terms of the modified

warranty, Solutia agreed to warrant the
film itself for ten years, and further
warranted against cracking and seal
failure for a period of five years.
Specifically, the letter states that:

“GLASS
BREAKAGE

CPFilms warrants that if the

glass should break as

a direct

result of the Film application

the glass will be replaced for a
period of SIXTY (60) months
and up to $500.00 per window.
The deductible for this size job
is $100 or 5% of the
replacement cost, whichever is
greater.

WINDOW SOLUTIONS
agrees to pay for $75.00 of the
deductible.

SEAL FAILURE

CPFilms warrants that if the
window seal fails within
SIXTY (60) MONTHS the
glass will be replaced up to
$500.00 per window. The
deductible for this size job is
$100 or 5% of the replacement
cost, whichever is greater.

WINDOW SOLUTIONS agrees

to pay for $75.00 of the
deductible.” Brezine Decl. Ex.

E (Kinley Ex. 499).

20.

The “typical” Solutia warranty for film
(a copy of which was also executed on
or about May 5, 2005) covers “Thermal
Shock Fracture” for five years but “Seal

Failure” for only three. Brezine Decl.

Ex. D (Kinley Ex. 497, p. 1).

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Solutia Inc.’s Separate Statement of Undisputed Material Facts

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21.

It is not clear why the warranty was
apparently modified in this case, but
Kinley does recall it being the subject of
discussions (to which he was not a
party) at the time of the sale. Brezine
Decl. Ex. A (Kinley Dep. 22:15-25;
33:15-34:11).

22.

“Thermal Shock Fracture” refers to a
type of glass breakage created by “a
differential in the temperature between
parts of the glass.” Brezine Decl. Ex. A
(Kinley Dep. 35:15-36:6).

23.

Window Solutions’ PMK witness
estimates Thermal Shock Fracture
happens “under a tenth of a percent of
the time” and that “[a]lmost always it
has to do with a defect in the glass,
whether it’s a chip on the edge of the
glass, which is the most common thing
... It could not be sitting right in its
frame.” Brezine Decl. Ex. B (Murphy
Dep. 46:14-47:7).

24.

The evidence shows that two separate
warranty claims for 11 windows in total
were made and fully satisfied between
November, 2005 and April, 2006.
Brezine Decl. Ex. D (Kinley Ex. 497,

pp. 2-5).

25.

A claim for “thermal shock fracture” is
likely to be made within the “first full
year” after application, if it is to be
made at all. Brezine Decl. Ex. A
(Kinley Dep. 114:13-115:4).

26.

In the Third Amended Complaint,
Window Solutions is named as a
“Subcontractor Defendant.” Brezine
Decl. Ex. F (Third Am. Compl. 6).

27.

Solutia is not named or mentioned at all
in the Third Amended Complaint.
Brezine Decl. Ex. F (Third Am. Compl.)

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28.

Plaintiff Beacon alleges on information
and belief that Window Solutions
“installed a film on the interior panes of
about 300 units ...; that the film was
installed in the wrong place; that the
purpose of the film was to mitigate heat
build-up in the units, but that instead the
film failed to mitigate the heat build up
and even increased it and caused the
window panes to crack ....” Brezine
Decl. Ex. F (Third Am. Compl. 45(qq)).

29.

Window Solutions filed its cross-
complaint against Solutia in this matter
on March 21, 2011. Brezine Decl. Ex.
G (Cross-Complaint).

30.

The cross-complaint names Solutia as a
defendant, as well as “LLumar ® aka
LLumar Window Film,” which is not an
entity but a brand of film sold by
Solutia. Brezine Decl. Ex. A (Kinley
Dep. 15:17-22).

31.

Window Solutions has served no
discovery in an attempt to support any
of its claims against Solutia. Brezine
Decl. { 2.

32.

The “person most knowledgeable”
presented by Window Solutions in
response to Plaintiff Beacon’s notice of
deposition (Paul Murphy) had no
firsthand knowledge of the matter
because he purchased Window
Solutions after the sale and application
of window film at the project. Brezine
Decl. Ex. B (Murphy Dep. 12:2-5,
14:19-23).

33.

Mr. Murphy was not involved with the
work done by Window Solutions at the
Beacon at all. Brezine Decl. Ex. B
(Murphy Dep. 16:22-17:5).

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Murphy said only that “[i]t’s easily the
top or has been for many years the top-
selling product in the world, so I can’t
say anything bad about the product.”
Brezine Dec]. Ex. B (Murphy Dep.
39:24-40:1).

35.

Mr. Murphy was unaware of Solutia or
CPFilms having any role in connection
with the Beacon project other than
simply selling the film that Window
Solutions later applied. Brezine Decl.
Ex. B (Murphy Dep. 60:24-61:2).

36.

With respect to the performance of
window film generally, while he agreed
with Solutia’s witness that it is typically
used to “mitigate heat and glare” it is
not possible to state that film will make
any particular space “cooler” by any
specific amount, because that is not how
film works — and that he had “never
once answered that question in the last
40 years.” See Brezine Decl. Ex. B,
(Murphy Dep. 25:17; 50:6-7.)

37.

Using what he called the “glass of water
analogy,” Mr. Murphy explained that
you can only calculate how much the
rate of “heat gain” will be reduced: “{i}f
you have a glass of water, and you put it
under the faucet, and the faucet is on
full, the glass will fill up in a few
minutes. If you put a glass ... under a
faucet that’s dripping, it will still fill
up.” Brezine Decl. Ex. B (Murphy Dep.
50:3-17).

38.

Window Solutions did not attend the
deposition of Solutia’s person most
knowledgeable, and therefore it had no
questions for him and his testimony is
undisputed. Brezine Decl. Ex. A
(Kinley Dep. pp. 3-5)(list of counsel
appearing).

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39.

Window Solutions expressly admits that
the sale of the film at issue took place
almost 6 full years before the cross-
complaint was filed. Brezine Decl. Ex
C (REA Resp. #3).

40.

Window Solutions admits that Solutia’s
role with respect to the Beacon project
was limited to selling and marketing the
film. Brezine Decl. Ex C (RFA Resp.
#s 1, 2, & 4).

41.

Window Solutions admits that Solutia
played no role in installing the film or in
selecting the type of film to be installed.
Brezine Decl. Ex. C (RFA Resp. #s 1 &
4).

42.

When asked to identify any alleged
“agreement” that had been breached by
Solutia, Window Solutions only asserted
objections, such as an objection to the
term “agreement.” See Brezine Decl.
Ex. H at pp. 13-15 (Amended Form
Rog. Responses, No. 50.1).

43.

Window Solutions asserted only
objections to Form Interrogatories
asking it to state whether it believes any
“agreement” has been breached (Form
Rog. No. 50.2), stating only that the
interrogatory “[c]alls for a legal
conclusion from an unqualified party.”
Brezine Decl. Ex. Hat p. 15.

44.

Window Solutions has not identified an
agreement that Solutia has breached in
its response to the Form Interrogatories
(Form Rog. No. 50.2). Brezine Decl.
Ex. Hat p. 15

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Solutia Inc.’s Separate Statement of Undisputed Material Facts
Case No. CGC 08-478453Issue #1: Solutia Is Entitled To Summary Adjudication On Window Solutions’ Breach

2 || of Contract Claim Because It Is Time-Barred And Because Window Solutions Has Conceded
3 || It Has No Basis To Claim That Solutia Breached Any Contractual Obligation.
4
5 Y
6 4. In or about March, 2005, Window
Solutions — through its former owner
7 Bernie Bramante — approached Solutia
and asked to purchase window film that
8 was to be applied at the Beacon Project.
Brezine Decl. Ex. A (Kinley Dep. pp.
9 19-21).
10 14. | Solutia sold and delivered the film to
Window Solutions sometime before
ui May 5, 2005. Brezine Decl. Exs. A
2 (Kinley Dep. 47:17-20), C (RFA
Response #3), and D, pp. 6-8 (standard
13 warranty form dated May 5, 2005 and
invoices).
14 .
24. | The evidence shows that two separate
15 warranty claims for 1] windows in total
were made and fully satisfied between
16 November, 2005 and April, 2006.
Brezine Decl. Ex. D (Kinley Ex. 497,
17 pp. 2-5).
18 29. | Window Solutions filed its cross-
complaint against Solutia in this matter
19 on March 21, 2011. Brezine Decl. Ex.
G (Cross-Complaint).
20 |
1 39. | Window Solutions expressly admits that
the sale of the film at issue took place
22 almost 6 full years before the cross-
complaint was filed. Brezine Decl. Ex
23 C (RFA Resp. #3).
24 42. | When asked to identify any alleged
“agreement” that had been breached by
25 Solutia, Wmdow Solutions only asserted
objections, such as an objection to the
26 term “agreement.” See Brezine Decl.
Ex. H at pp. 13-15 (Amended Form
27 Rog. Responses, No. 50.1).
28

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Solutia Inc.’s Separate Statement of Undisputed Material Facts

Case No. CGC 08-478453
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QaRGOR ES

43.

Window Solutions asserts objections to
Form Interrogatories asking it to state
whether it believes any “agreement” has
been breached (Form Rog. No. 50.2),
stating only that the interrogatory
“[cJalls for a legal conclusion from an
unqualified party.” Brezine Decl. Ex.
Hat p. 15.

44,

Window Solutions has not identified an
agreement that Solutia has breached in
its response to the Form Interrogatories
(Form Rog. No. 50.2). Brezine Decl.
Ex. H at p. 15.

Issue #2: The Negligence Cause of Action Fails As A Matter Of Law Because Window

Solutions Cannot Establish Breach of Any Duty.

pport

Bramante “already knew what film he
wanted, because, being a 3M dealer, he
had a product called Night Vision. The
equivalent of the Night Vision products
is [the Solutia] DR series products, so
he already knew what he wanted at that
point.” Brezine Decl. Ex. A (Kinley
Dep. 24:7-11).

Solutia was not involved in the decision
to apply film to the windows at the
Beacon, which had already been made
when Mr. Bramante contacted Solutia.
Brezine Decl. Ex. A (Kinley Dep. 17:5-
18; 21;14-19; 24:3-11; 79:3-10) & Ex. C
(RFA Resp. #s 2 & 4).

Solutia was not involved in the choice
of the film to be applied. Brezine Decl.
Ex. C (RFA Resp. #4).

WL

Solutia Inc.’s Separate Statement of Undisputed Material Facts
Case No. CGC 08-478453

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When Window Solutions approached
Solutia it asked for the Solutia film that
most closely approximated the
unavailable 3M product they had
selected. Brezine Decl. Ex. A (Kinley
Dep. 21:14-19; 24:3-11).

In the words of Mr. Kinley, “That’s why
I say it was a very limited involvement;
he just wanted to buy our film.”

Brezime Decl. Ex. A (Kinley Dep.
22:13-14).

10.

Mr. Kinley never even went to the
Beacon in connection with this sale.
Brezine Decl. Ex. A (Kinley Dep.
23:15-18).

Bramante “said he had already done all
of the work, had made the proposals,
everything.” Brezine Decl. Ex. A
(Kinley Dep. 24:1-2).

12.

Solutia does, on occasion, perform an
analysis of the glass in a building in
connection with a recommendation of
film, but it was not asked to and did not
do so for the Beacon Project. Brezine
Decl. Ex. A (Kinley Dep. 62:1-6).

13.

At no time did Solutia perform any
“technical analysis” of the installation of
the film at the Beacon. Brezine Decl.
Ex. A (Kinley Dep.103:1-4).

16.

Solutia was not involved in the
application of the film, and did not have
employees or contractors on site at the
Beacon at any time. Brezine Decl. Ex.
C (RFA Response #2) and Ex. A
(Kinley Dep. 17:5-13).

17.

Window Solutions’ PMK witness said
that he confirmed with the prior owner
that Window Solutions performed the
work at the Beacon, but that was the
extent of their conversation. Brezine
Decl. Ex. B (Murphy Dep. 22:10-14).

12

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34. | About Solutia’s LLumar film, Mr.
Murphy said only that “[i]t’s easily the
top or has been for many years the top-
selling product in the world, so ] can’t
say anything bad about the product.”
Brezine Decl. Ex. B (Murphy Dep.
39:24-40:1).

35. | Mr. Murphy was unaware of Solutia or
CPFilms having any role in connection
with the Beacon project other than
simply selling the film that Window
Solutions later applied. Brezine Decl.
Ex. B (Murphy Dep. 60:24-61:2).

40. | Window Solutions admits that Solutia’s
tole with respect to the Beacon project
was limited to selling and marketing the
film. Brezine Decl. Ex C (RFA Resp.
#s 1,2, & 4).

41. | Window Solutions admits that Solutia
played no role in installing the film or in
selecting the type of film to be installed.
Brezine Decl. Ex. C (RFA Resp. #s 1 &
4).

Issue #3: Window Solutions’ “Contribution” and “Equitable Indemnity” Claims Fail

Because There Can Be No Judgment Entered Against Window Solutions and Solutia Jointly
And Window Solutions Cannot Establish Any Wrongful Conduct By Solutia To Support A
Finding of “Fault”.

Bramante “already knew what film he
wanted, because, being a 3M dealer, he
had a product called Night Vision. The
equivalent of the Night Vision products
is [the Solutia] DR series products, so
he already knew what he wanted at that
point.” Brezine Decl. Ex. A (Kinley
Dep. 24:7-11).

13

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Solutia was not involved in the decision
to apply film to the windows at the
Beacon, which had already been made
when Mr. Bramante contacted Solutia.
Brezine Decl. Ex. A (Kinley Dep. 17:5-
18; 21;14-19; 24:3-11; 79:3-10) & Ex. C
(RFA Resp. #s 2 & 4).

Solutia was not involved in the choice
of the film to be applied. Brezine Decl.
Ex. C (RFA Resp. #4).

When Window Solutions approached
Solutia it asked for the Solutia film that
most closely approximated the
unavailable 3M product they had
selected. Brezine Decl. Ex. A (Kinley
Dep. 21:14-19; 24:3-11).

In the words of Mr. Kinley, “That’s why
I say it was a very limited involvement;
he just wanted to buy our film.”

Brezine Decl. Ex. A (Kinley Dep.
22:13-14).

Bramante “said he had already done all
of the work, had made the proposals,
everything.” Brezine Decl. Ex. A
(Kinley Dep. 24:1-2).

12.

Solutia does, on occasion, perform an
analysis of the glass in a building in
connection with a recommendation of
film, but it was not asked to and did not
do so for the Beacon Project. Brezine
Decl. Ex. A (Kinley Dep. 62:1-6).

13.

At no time did Solutia perform any
“technical analysis” of the installation of
the film at the Beacon. Brezine Decl.
Ex. A (Kinley Dep.103:1-4).

16.

Solutia was not involved in the
application of the film, and did not have
employees or contractors on site at the
Beacon at any time. Brezine Decl. Ex.
C (RFA Response #2) and Ex. A
(Kinley Dep. 17:5-13).

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Window Solutions’ PMK witness said
that he confirmed with the prior owner
that Window Solutions performed the
work at the Beacon, but that was the
extent of their conversation. Brezine
Decl. Ex. B (Murphy Dep. 22:10-14).

26.

In the Third Amended Complaint,
Window Solutions is named as a
“Subcontractor Defendant.” Brezine
Decl. Ex. F (Third Am. Compl. 6).

Solutia is not named or mentioned at all
in the Third Amended Complaint.
Brezine Decl. Ex. F (Third Am. Compl.)

28.

Plaintiff Beacon alleges on information
and belief that Window Solutions
“4nstalled a film on the interior panes of
about 300 units ...; that the film was
installed in the wrong place; that the
purpose of the film was to mitigate heat
build-up im the units, but that instead the
film failed to mitigate the heat build up
and even increased it and caused the
window panes to crack ....” Brezine
Decl. Ex. F (Third Am. Compl. {5(qq)).

34.

About Solutia’s Llumar film, Mr.
Murphy said only that “[i]t’s easily the
top or has been for many years the top-
selling product in the world, so I can’t
say anything bad about the product.”
Brezine Decl. Ex. B (Murphy Dep.
39:24-40:1).

35.

Mr. Murphy was unaware of Solutia or
CPFilms having any role in connection
with the Beacon project other than
simply selling the film that Window
Solutions later applied. Brezine Decl.
Ex. B (Murphy Dep. 60:24-61:2).

40.

Window Solutions admits that Solutia’s
role with respect to the Beacon project
was limited to selling and marketing the
film. Brezine Decl. Ex C (RFA Resp.
#s 1,2, & 4).

15

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Case No. CGC 08-478453oD ON DH RP WN

YN NN NN NK KY KR S| Be B= Be Be ewe ew eB Be
oN DAA BH YH F&F SSC we HY DW BBW HN

Window Solutions admits that Solutia

played no role in installing the film or in
selecting the type of film to be installed.
Brezine Decl. Ex. C (RFA Resp. #s 1 &
4).

Dated: September 27, 2012 BRYAN CAVE LLP

by

Adam Brezine

Julien E. Capers

Attorneys for Cross-Defendant
SOLUTIA INC.

16

#77301 v3 sat

Solutia Inc.’s Separate Statement of Undisputed Material Facts
Case No. CGC 08-478453