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
Aug-17-2012 4:08 pm

Case Number: CGC-08-478453
Filing Date: Aug-17-2012 4:07
Filed by: CAROL BALISTRERI

Juke Box: 001 Image: 03730086
DECLARATION OF

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

001003730086

Instructions:
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LAW OFFICES
HAIGHT, BROWN &
BONESTEEL, LLP.
San Francisco

Charles A. Hansen (Bar No. 76679) FI

Peter J. Laufenberg (Bar No. 172979 Superior Court of Galfornia
WENDEL, ROSEN, BLACK & DEAN LLP Sunty of San Francisco
1111 Broadway, 24th Floor AUG 17
Oakland, California 94607-4036 2012

Telephone: (510) 834-6600 CLERI

Facsimile: ($10) 834-1928 we CONCOF THE COURT h
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 STEVEN M.
CVITANOVIC IN SUPPORT OF
MISSION PLACE’S REPLY TO HKS,
INC.’S OPPOSITION TO MOTION
CATELLUS THIRD AND KING LLC, et FOR SUMMARY ADJUDICATION
al.,

v.

Defendants. Date: August 24, 2012
Time: 10:00 a.m.
Dept: 304
AND RELATED CROSS-ACTIONS Judge: Hon. Richard A. Kramer
1. I, Steven M. Cvitanovic, declare as follows:

2. I am a partner at the law firm of Haight Brown & Bonesteel, L.L.P. counsel

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

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

1
2u29-0000032 DECLARATION OF STEVEN M. CVITANOVIC ISO MISSION PLACE’S REPLY
3974695.1 TO HKS’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATIONLAW OFFICES

HAIGHT, BROWN &
BONESTEEL, L.LP.
‘San Francisco

in its own name and erroneously sued as Centurion Partners LLC) (hereinafter collectively
“Mission Place” or “Cross-Complainants”) in the above-captioned action. I am a member
in good standing of the State Bar of California.

3. I have personal knowledge of the facts set forth in this Declaration and, if
called as a witness, I could and would testify competently to such facts under oath. I make
this declaration in support of Mission Place’s Reply to HKS, Inc.’s (“HKS”) Opposition to
Mission Place’s Supplemental Motion for Summary Adjudication.

4, On June 21, 2012, I personally sent an email to counsel for HKS, Inc.,
Steven H. Schwartz and Noel Macaulay, explaining the discovery of emails between Craig
Williams of HKS and Catellus and Mission Place in which the parties discussed the
Assignment of Architect Agreement and Consent and Agreement. These emails were sent
to counsel for HKS as an attachment to my email. A true and correct copy of my email to
counsel for HKS, is attached as Exhibit 24'.

| 5. On June 26, 2012, I emailed counsel for HKS, Inc. again, regarding proper
authentication of the emails, production of emails from Craig Williams, and to ensure that
I had an opportunity to take Mr. Williams’ deposition. Two minutes later, Mr. Schwartz
responded to my email and stated “we are happy to authenticate the letters or provide Mr.
| Williams for depo.” A true and correct copy of this email is attached as Exhibit 25.

6. Approximately 20 minutes after this email exchange, I spoke with Mr.
Schwartz on the telephone for over 14 minutes regarding authentication and use of the
emails. Mr. Schwartz told me that HKS would not raise authentication objections to the
emails but asked that I re-send all of them and, for that reason, I stated it looked like I
would not need to take the deposition of Mr. Williams. A true and correct copy of my

email of June 29, 2012 forwarding the emails again is attached as Exhibit 26.

. ' The exhibits are numbered sequentially following those submitted in support of
Mission Place’s supplemental briefing.
2
zu20-0000032 + DECLARATION OF STEVEN M. CVITANOVIC ISO MISSION PLACE’S REPLY
3974695.1 TO HKS’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION7. Mr. Schwartz never informed me or my office that he changed is mind and

was no longer willing to authenticate the emails. In reliance on HKS’s counsel’s earlier
statement that he was "happy to authenticate the emails", Mission Place submitted the
emails as evidence in support of the supplemental briefing regarding the Motion for
Summary Adjudication on Mission Place’s cross-complaint. Now, in a reversal, HKS is
attacking the authentication of emails they told me they were “happy to authenticate.”

8. The HKS-related emails were sent to and from Craig Williams, in-house

counsel for HKS. HKS has asserted in discovery that it has produced all its emails, yet

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these emails were conspicuously absent from the HKS production. The only reason these

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emails were not produced by Mission Place at an earlier date is because they were part of a

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privileged email chain between Mission Place and its counsel. As discovery regarding the

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"mutual intent of the parties" was underway, I asked my paralegal to revisit Mission

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Place's Privilege Log to ensure that our attorney — client privileged emails only extended to

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communications between Mission Place and its counsel. Upon review, some of those

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privileged emails contained earlier "forwarded" emails between Mission Place's counsel

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and TKI's counsel, and some of those emails from TKI were emails between it and HKS

and Webcor. Those underlying emails were not privileged, but were withheld from

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production inadvertently because the top of email contained a communication between

Mission Place and its counsel. In summary, these emails should have been in HKS’s

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possession in the first place but in any event were produced to HKS and other counsel

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upon Mission Place's discovery that some had inadvertently been identified as privileged,

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and this occurred approximately one month before the filing of the supplemental briefing.

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I declare under penalty of perjury under the laws of the State of California that the

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foregoing is true and correct.

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Executed on August 17, 2012, at San =ey Califo:

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LAW OFFICES 3
uatGHT, BROWNS |. sooaag DECLARATION OF STEVEN M. CVITANOVIC ISO MISSION PLACE’S REPLY
aera Frasoce | 3974695.1 TO HKS’S OPPOSITION TO MOTION FOR SUMMARY ADJUDICATIONEx. a4From: Cvitanovic, Steven
Sent: Thursday, June 21, 2012 12:44 PM

To: Steven H. Schwartz (sschwartz@sj-iaw.com); Noel Macaulay

Cc: ‘Deborah Nelson’; Todd J. Wenzel (twenzel@ropers.com); ‘David S. Webster’
Subject: Beacon v. Catellus - Discovery update

Dear Steve and Noel,

As part of our preparations for the summary adjudication, we've been going through Catellus' privilege
log, Webcor's log, and our own. Attached is a document (first attachment) that was sent by Catellus’
attorneys to Mission's attorneys. This document did not make it through the filter since the forward of the
document was from Mission Place's counsel (Goodwin Proctor) to the Mission Place representatives, and
thus got tagged as attorney-client. However, while the Goodwin - MP communications are privileged, the
underlying email string was not. We are in process of making sure all of the previously withheld emails
are reviewed and produced (in redacted form as appropriate) when there is a non-privileged embedded
email string. Catellus is doing the same (i.e., reviewing withheld emails to make sure that non-privileged
content is produced) for a subsequent production based upon my identification of documents in the log
that may not have been privileged.

The attached email shows several things that you may not have been previously aware and that are
contrary to suggestions in your opposition paperwork and what you have suggested in your discovery in
regards to the Assignment and Consent. More importantly, it shows that Mr. Williams did discuss both
the Assignment and Consent documents with Catellus' and Mission's counsel. | would reiterate our
request that Mr. Williams produce his email traffic on his communications with Catellus and/or Mission. |
also think that if HKS continues to argue that the assignment was void because it was non-exclusive, then
Mr. Price's deposition will likely happen. | would like that deposition to happen on either July 12th or 13th
in Oakland.

| look forward to your response to the above.
Thank you.
Regards,

Steve Cvitanovic

Steven Cvitanovic
Partner

D: 415.281.7608
scvitanovic@hbblaw.com

Haight

Haight Brown & Bonesteel, LLP
71 Stevenson Street

20th Floor

San Francisco, CA 94105

O: 415.546.7500

F: 415.546.7505
www.hbblaw.com

MSA 0349The contents of this email message and its attachments are intended solely for the addressee(s) hereof.
This email transmission may be confidential and it may be subject to privilege protecting communications
between attorneys and their clients. If you are not the named addressee, or if this message has been
addressed to you in error, you are directed not to read, disclose, reproduce, distribute, disseminate or
otherwise use this transmission. Delivery of this message to any person other than the intended
recipient(s) is not intended in any way to waive privilege or confidentiality. If you have received this
transmission in error, please alert the sender by reply e-mail. We request that you immediately delete this
message and its attachments, if any. UNAUTHORIZED INTERCEPTION PROHIBITED BY FEDERAL
LAW (18 U.S.C 2510-2522).

MSA 0350EY. o>From: Steve H. Schwartz [mailto:sschwartz@sj-law.com]
Sent: Tuesday, June 26, 2012 1:52 PM

To: Cvitanovic, Steven

Subject: RE: Beacon: Craig Williams

Call soon. I’m still not feeling great.

Steven H. Schwartz

SCHWARTZ & JANZEN, LLP
12100 Wilshire Boulevard, Suite #1125
Los Angeles, California 90025

Tel. (310)979-4090

Fax. (310)207-3344
sschwartz@sj-law.com

From: Cvitanovic, Steven [mailto:scvitanovic@HBBLAW.com]
Sent: Tuesday, June 26, 2012 1:44 PM

To: sschwartz@sj-law.com

Cc: Noel Macaulay
Subject: RE: Beacon: Craig Williams

i will call you later today to discuss details. thanks.

From: Steve H. Schwartz [mailto:sschwartz@sj-law.com]
Sent: Tuesday, June 26, 2012 1:40 PM

To: Cvitanovic, Steven

Cc: 'Noel Macaulay’

Subject: RE: Beacon: Craig Williams

We are happy to authenticate the letters or provide Mr. Williams for depo.

Steven H. Schwartz

SCHWARTZ & JANZEN, LLP
12100 Wilshire Boulevard, Suite #1125
Los Angeles, California 90025

Tel. (310)979-4090

Fax. (310)207-3344
sschwartz@sj-law.com

MSA 0351From: Cvitanovic, Steven [mailto:scvitanovic@HBBLAW.com]
Sent: Tuesday, June 26, 2012 1:38 PM

To: sschwartz@sj-law.com

Cc: Noel Macaulay

Subject: Beacon: Craig Williams

Steve,

| know you are busy but | need to bring the Craig Williams thing to a conclusion. By now you have seen
that emails that he sent and received regarding the Assignment and Consent. My main concern now is
having proper authentication of the emails, production of emails from Mr. Williams, and ensuring | have
an opportunity to take his deposition since you may provide a declaration from him in opposition to the
motion.

| hope | don't have to get Judge Sabraw involved in the issue in terms of getting some orders, but if that is
where this is going | will. If | don't hear from you by tomorrow morning, | will assume that is how this will
proceed.

Steve

Steven Cvitanovic
Partner

D: 415.281.7608
scvitanovic@hbblaw.com

Haight

Haight Brown & Bonesteel, LLP
71 Stevenson Street

20th Floor

San Francisco, CA 94105

O: 415.546.7500

F: 415.546.7505
www.hbblaw.com

The contents of this email message and its attachments are intended solely for the addressee(s) hereof. This email transmission may be
confidential and it may be subject to privilege protecting communications between attorneys and their clients. If you are not the named
addressee, or if this message has been addressed to you in error, you are directed not to read, disclose, reproduce, distribute, disseminate
or otherwise use this transmission. Delivery of this message to any person other than the intended recipient(s) is not intended in any way to
waive privilege or confidentiality. If you have received this transmission in error, please alert the sender by reply e-mail, We request that you
immediately delete this message and its attachments, if any. UNAUTHORIZED INTERCEPTION PROHIBITED BY FEDERAL LAW (18
U.S.C 2510-2522),

MSA 0352ey. “o- woEXHIBIT 26From: Cvitanovic, Steven

Sent: Friday, June 29, 2012 4:04 PM

To: Steven H. Schwartz (sschwartz@sj-law.com); ‘Noel Macaulay’
Ce: Shine, Zachary

Subject: Beacon v. Catellus: HKS emails

Attachments: Beacon_HKS emails re assignment.pdf; Clean Assign Arch 12-9.doc; Red Assign Arch 12-9.doc; FW:
Mission Place - HKS
Dear Steve and Noel,

There are four attachments.

The first attachment contains a series of emails and attachments that were either sent to Mr. Williams, or received from him. | have
highlighted the portion of the emails and attachments that | would like confirmation on authenticity. The first email originates from Mr.
Vincent of HKS and Mr. Williams is ccd on that transmission along with a draft red-line. The second email originates from Ms. Blank to
Mr. Williams (Nov. 8) and also contains Mr. Williams’ response (Nov. 9), along with the red-lined document. The third email is from Ms.
Blank on December 10th enclosing the final and red-lined copy of the agreements. However, the Word documents appear identical and |
have attached the Word versions shown in the December 10th email.

The fourth and final attachment is December 16, 2004 internal email from Catellus reflecting what HKS sent back to Catellus insofar as
the assignment documents are concemed. Note: | forwarded the document to myself so | could remove the privileged communication
between my client and its lawyers. We are still trying to locate the original HKS transmission of these final documents and believe it is
our documents somewhere. However, this should not be a real item of dispute.

So what | am asking, in lieu of a deposition for purposes of this summary adjudication, is: 1) for HKS to admit that the highlighted portions
of the emails are authentic; 2) that the attachments to Mr. Vincent's and Mr. Williams emails are authentic red-lined versions with their
respective additions / deletions; 3) that the "clean assignment” to Ms. Blank's December 10th email is authentic and that 4) the
“assign.pdf" within the attached email is the document that Mr. Price signed and returned to Catellus.

Assuming the above is cleared up, the only two loose ends that | can think of right now that would cause me to need a deposition for this
motion would be if HKS continues to argue / suggest that it never had a contract with TKI and instead its contract was only with CUDG
and/or anything that might come back in an HKS opposition from Mr. Williams in regards to the summary adjudication issues.

| look forward to your thoughts on the above. Thanks.

Steve Cvitanovic

Steven Cvitanovic
Partner

D: 415.281.7608
scvitanovic@hbblaw.com

x

Haight Brown & Bonestee!, LLP
71 Stevenson Street

20th Floor

San Francisco, CA 94105

O: 415.546.7500

F: 415.546.7505
www.hbblaw.com

The contents of this email message and its attachments are intended solely for the addressee(s) hereof. This email transmission may be confidential and it may be subject to
privilege protecting communications between attomeys and their clients. If you are not the named addressee, or if this message has been addressed to you in error, you are directed
Not to read, disclose, reproduce, distribute, disseminate or otherwise use this transmission. Delivery of this message to any person other than the intended recipient(s) is not intended
in any way to waive privilege or confidentiality. If you have received this transmission in error, please alert the sender by reply e-mail. We request that you immediately delete this
message and its attachments, if any. UNAUTHORIZED INTERCEPTION PROHIBITED BY FEDERAL LAW (18 U.S.C 2510-2522).

MSA 0353