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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Aug-17-2012 4:06 pm

Case Number: CGC-08-478453

Filing Date: Aug-17-2012 4:05
Filed by: CAROL BALISTRERI

Juke Box: 001 Image: 03730082
REPLY

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

001003730082

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

wocom NIN DH PF WN

NH N NY N NN NN Rw ee
on DA nA FF WN KF§ FG GO ODN DH FF WYN KF SO

LAW OFFICES
HAIGHT, BROWN &
BONESTEEL, L.L.P.

San Francisco

Charles A. Hansen (Bar No. 76679)

Peter J. Laufenberg (Bar No. 172979)
WENDEL, ROSEN, BLACK & DEAN LEP
1111 Broadway, 24th Floor

Oakland, California 94607-4036 F I

Telephone: (510) 834-6600 Superior Ch 1
Facsimile: (510) 834-1928 ity oF San Frouornia
Steven M. Cvitanovic (Bar No. 168031) AUG 17 2012
Zachary W. Shine (Bar No. 271522 o

HAIGHT BROWN & BONESTEEL LLP PERK OF THE EQuAT

71 Stevenson Street, 20th Floor PY At

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,
MISSION PLACE'S REPLY TO
Plaintiff, WEBCOR CONSTRUCTION, INC.’S
MEMORANDUM OF POINTS AND
v. AUTHORITIES IN SUPPORT OF
THEIR OPPOSITION TO
CATELLUS THIRD AND KING LLC, et al.) MISSION PLACE’S MOTION FOR
SUMMARY ADJUDICATION
Defendants. )

Date: August 24, 2012

Time: 10:00 a.m.
AND RELATED CROSS-ACTIONS Dept: 304
Judge: Hon. Richard A. Kramer

-ZU29-0000032 MISSION PLACE'S REPLY TO WEBCOR CONSTRUCTION, INC.’S
3975141.1 SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATIONOo oN DAH FF Ww NH

NY NY NY NY N YN YN NO NO we we we ee
on nA UB WN -§& OD 0 ONY DWH FF BW NY & OS

LAW OFFICES

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

Defendants and Cross-Complainants Mission Place, LLC and its affiliated entities
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
(hereinafter collectively “Mission Place”) hereby submit this Reply to Cross-Defendant
Webcor Construction, Inc.’s (“Webcor”) Opposition to the Supplemental Memorandum of
Points and Authorities in support of Mission Place’s Motion for Summary Adjudication.

L Introduction

As discussed below, Webcor’s opposition is fatally flawed in several respects.
Rather than introduce new arguments based on the subsequent discovery granted by the
court, Webcor largely chooses to regurgitate the same stale arguments it put forth in its
opposition of one year ago. Just like last time, these arguments miss the mark and do little
to relieve Webcor from its contractual duty to defend Mission Place.

First, TKI properly assigned the Contractor Agreement, including Webcor’s
indemnity and defense obligations, to Mission Place. Contrary to Webcor’s assertions, the
language in the Consent and Agreement stating “Contractor has heretofore assigned to
Owner all guaranties and warranties” does not limit the Assignment, but clearly means
Webcor previously assigned the guaranties and warranties prior to the Assignment and
Consent. This language has no bearing on what rights and obligations were assigned under
the Assignment of Contractor Agreement. Additionally, the two parties to the Assignment
of Architect Agreement, TKI and Mission Place, have explained time and again, they
intended to transfer indemnity rights and defense obligations in the Webcor contract to
Mission Place. Furthermore, the language of the Assignment is not ambiguous, and parol
evidence is unnecessary. Webcor’s personal beliefs regarding the Assignment and
Consent are irrelevant in ascertaining the meaning of the documents. Webcor’s claim that
it was not paid consideration is also severely flawed as Webcor was not a party to the
Assignment of Contractor Agreement, but is simply the third party obligor to which no
consideration is owed. Additionally, most assignments do not require consideration, and

Webcor’s alleged concerns regarding increased financial risk are illusory as TKI is not,

1
ZU29.0000032 MISSION PLACE'S REPLY TO WEBCOR CONSTRUCTION, INC.’S
39751411 SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATIONLAW OFFICES

HAIGHT, BROWN &
BONESTEEL, LLLP.
‘San Francisco

and will not, seek indemnity from Webcor. Furthermore, Webcor’s argument that the
terms of the Agreement do not apply to Mission Place is misguided as, by way of the
Assignment, Mission Place stepped into the shoes of TKI and is entitled to all of TKI’s
right, title and interest in the Webcor contract. Webcor’s interpretation of the insurance
provision in its own contract is also manifestly unreasonable and does not excuse
Webcor’s duty to defend as the language requires Webcor to pay for a defense, judgment,
or other costs unless those obligations are covered or compensated by Webcor’s own
insurance carrier, and not the other way around. Finally, Webcor misreads the explicit
holdings of Crawford and Bramalea in arguing that Mission Place must show actual
damages prior to a declaration that Webcor owes Mission Place an immediate defense.

Mission Place stated in its moving papers that all the Court needs to do in this
instance is review the contracts, claims, and Crawford case. This observation remains true
despite the obvious attempts by Webcor to create distractions concerning what should
otherwise be a simple and straightforward analysis. In summary, Webcor was a contractor
that built the project, Webcor was paid a substantial fee under a contract in which it
contractually agreed to indemnify and defend the Owner from claims or lawsuits arising
from Webcor’s misconduct or defects in Webcor’s work, and Plaintiffs have made claims
regarding construction defects. Accordingly, Webcor owes Mission Place a defense. To
date, Webcor has evaded its contractual obligations and will continue to do so unless

ordered by the Court to abide by the bargain it agreed to.

II. TKI Properly Assigned the Contractor Agreement, Including the Indemnity
and Defense Obligations Therein, to Mission Place

The two parties to the Assignment of Contractor Agreement, TKI and Mission
Place, have explained time and again, they intended to transfer all indemnity rights and
defense obligations in the Webcor contract to Mission Place. Nonetheless, Webcor, who
was not a party to the Assignment, continues to attack the legitimacy of the Assignment in

a frantic attempt to evade its contractual obligations.

2
229-0000032 MISSION PLACE'S REPLY TO WEBCOR CONSTRUCTION, INC.’S
3975141.1 SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION19

LAW OFFICES

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

In its opposition, Webcor picks and chooses two unrelated portions of the Consent
and Agreement (sections (i) and (xii)) and summarily concludes this “statement” is the
“lone expression” of the obligations Webcor consented to assign to Mission Place. This
nonsensical reading of the Consent and Agreement is totally unsupported by the express
terms of the document. First, as evidenced by the Supplemental Declaration of John
Tashjian, at paragraph 9, these statements are estoppels, not reductions in the scope of the
consent. Second, the language in section (i) stating “the Contract is in full force and
effect” clearly supports Mission Place’s argument that the entire contract, including the
indemnity and defense obligations, applies to Mission Place. The other language
highlighted by Webcor, section (xii), states that “Contractor has heretofore assigned to
Owner all guaranties and warranties relating to the Project.” This clearly means Webcor
already assigned the guaranties and warranties to the Owner prior to the Assignment and
Consent and has no bearing on the rights that were actually assigned as part of the
Assignment of Contractor Agreement.

In isolating these two unrelated subsections of the Consent and Agreement, Webcor
conveniently overlooks the bulk of the document that repeatedly emphasizes the full
assignment to Mission Place. At the top of the Consent and Agreement, Webcor clearly
“consents to the forgoing Assignment of Contractor Agreement and agrees to perform
} pursuant to the Contract.” Furthermore, Webcor acknowledges the Contractor Agreement

“is in full force and effect,” the Agreement “constitutes a valid and binding obligation” of

Webcor, and the Agreement “is enforceable against [Webcor] in accordance with its

terms.” Nowhere is there any language limiting the rights assigned to Mission Place.
Instead, the language in the Consent is intentionally broad and clearly encompasses all
rights contained in the Contractor Agreement, including the right to a defense.
Webcor also argues the Assignment of Contractor agreement did not effectively
transfer all rights in the Webcor contract to Mission Place because the Assignment was

made on a “non-exclusive basis.” It is important to remember “[i]t is the substance and not

the form of a transaction which determines whether an assignment was intended. ... If
3

‘7u29-0000032 MISSION PLACE'S REPLY TO WEBCOR CONSTRUCTION, INC.’S

39751411 SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATIONfrom the entire transaction and the conduct of the parties it clearly appears that the intent of

the parties was to pass title to the [property], then an assignment will be held to have taken
place.” Recorded Picture Co. (productions) Ltd v. Nelson Entm't (1997) 53 Cal. App. 4th
1350, 368. Here, the two parties to the Assignment of Contractor Agreement are TKI and

| Mission Place. Representatives of TKI and Mission Place testified they intended to assign

2

3

4

5

6 | all rights in the Contractor Agreement, including indemnity and defense rights, to Mission
7||Place. In his deposition, Keith Anderson, Senior Vice President of Catellus, asserts that

8 | TKI intended the assignment to be a full assignment of the Webcor contract, including all
9 | obligations Webcor had under the contract. John Tashjian of Mission Place also stated it
10 | was very clear to Mission Place that they were receiving all rights under the contract. The
11 | substance of the Assignment, and the testimony regarding mutual intent, show the parties
12 | to the Assignment assigned all rights in the Contractor Agreement to Mission Place.

13 Furthermore, the express language of the Assignment of Contractor Agreement

14 | plainly states TKI assigned to Mission Place “all of its right, title and interest in and to (a)
15 | that certain Construction Agreement dated August 24, 2001 by and between Third and

16 | King and Webcor Construction, Inc., dba Webcor Builders ...” (emphasis added) It is

17 | undisputed the Contractor Agreement contains an express indemnity and defense

18 | provision. Thus, because the Assignment clearly and unambiguously transfers “all right,

19 | title and interest” in the Webcor contract to Mission Place, this transfer must include the

20 | indemnity and defense obligations.

21/T1. There is no Ambiguity as the Assignment of Contractor Agreement Clearly
22 Assigned All Indemnity and Defense Rights to Mission Place
23 Webcor incorrectly argues there is an ambiguity regarding the scope of the

24 | assignment that precludes summary judgment. Webcor bases its argument on the fact that
25 | Webcor and Mission Place “have opposing and radically different beliefs.” To support this
26 | argument, Webcor supplies testimony regarding Webcor’s “belief and intent” and what

27 | Mission Place allegedly “testified that they understood.” First, Webcor was not a party to
28 | the Assignment of Contractor Agreement. It is well established that the two parties to the

LAW OFFICES 4
HAIGHT, BROWNS I gasp MISSION PLACE'S REPLY TO WEBCOR CONSTRUCTION, INC.’S
eee Fencisce |) so7stat SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION

San FranciscoAssignment, TKI and Mission Place, have an identical understanding of the scope of the

| Assignment. Webcor should not be allowed to force its “belief and intent” into the
discussion simply because it wishes to avoid its contractual obligations.

Additionally, the fact that parties have differing views is not shocking as they have
been engaged in heated litigation for the better part of four (4) years. However, differing
beliefs do not create an ambiguity or a triable issue of fact. If that were the case, there
would never be a successful motion for summary judgment. It is a “settled principle of the

law of contract that the undisclosed intentions of the parties are, in the absence of mistake,

oO me NY DH FF WY NY

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

- SF
Nu FF O&O

agreement are set forth in writing, and the words are not equivocal or ambiguous, the

Ww

writing or writings will constitute the contract of the parties, and one party is not permitted

—
b

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 reality, the language of the Assignment of Contractor Agreement plainly states

re Se
ry nA vw

TKI assigned to Mission Place “all of its right, title and interest in and to (a) that certain

_
0

Construction Agreement dated August 24, 2001 by and between Third and King and

_
xo

| Webcor Construction, Inc., dba Webcor Builders ...” (emphasis added) Nonetheless,

Ny
o

Webcor continues to argue that the meaning of the Assignment should be shaped by John

N

Bowles’, the signatory for Webcor, unsupported personal view that TKI was assigning

N
N

only guaranties and warranties. As explained above, guaranties and warranties were

23 | already “heretofore assigned” to Mission Place, and cannot be assigned again. In the face
24 | of the clear and unequivocal language of both the Assignment and Consent, Mr. Bowles
25 | subjective misunderstanding will not create an “ambiguity” or a triable issue of fact.

26

27
28
LAW OFFICES 5
HAIGHT, BROWN & MISSION PLACE'S REPLY TO WEBCOR CONSTRUCTION, INC.’S

BONESTEEL,LLP, | yea SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION

San FranciscoLAW OFFICES
HAIGHT, BROWN

BONESTEEL, LLP.

‘San Francisco

IV. Webcor’s Alleged Lack of Consideration Has No Bearing on the Validity
of the Assignment Between TKI and Mission Place

—

Webcor incorrectly argues that because it received no consideration under the
Assignment of Contractor Agreement, the Assignment is somehow invalid. First, Webcor

was not a party to the Assignment of Contractor Agreement. The rights in the Contractor

Agreement belonged solely to TKI and were properly transferred to Mission Place.
Webcor is simply the third party obligor who is required to perform under the terms of the

contract. The basics of contract law establish that consideration may be either a benefit to

oO won nn F&F WY NY

the promissor or a detriment to the promisee. Cal. Civ. Code § 1605, Witkin Contracts
10 | § 203 [CITE], see generally Seth v. Lew Hing (1932) 125 Cal. App. 729, 734; PMC v.
11 | Porthole Yachts, LTD. (1998) 65 Cal. App. 4th 882, 891. Webcor points to absolutely no

12 | authority requiring consideration to be paid to the third party obligor in this scenario.

13 Moreover, even if Webcor was a party to the Assignment (which it is not),

14 | California courts have held a party may generally assign his or her interest in a contract

15 | with or without consideration. Ballinger v. Ballinger (1937) 9 Cal. 2d 330, 333-334;

16 | Johnston v. Landucci (1942) 21 Cal. 2d 63, 67; 2-22 MB Practice Guide: CA Contract

17 | Litigation 22.53. Additionally, the California legislature established that “[a] voluntary

18 | transfer is an executed contract, subject to all rules of law concerning contracts in general,
19 | except that a consideration is not necessary to its validity.” Cal. Civ. Code § 1040

20 | (emphasis added). Webcor offers no evidence why consideration must be paid to Webcor
21 | to validate the agreement between TKI and Mission Place.

22 Webcor also mistakenly claims it will face an increased financial risk as a result of
23 || the Assignment because it will be obligated to indemnify and defend both Mission Place
24 | and TKI. However, Mission Place has steadfastly maintained that Webcor owes an

25 | immediate defense and indemnity only to Mission Place. Webcor’s fears should be further
26 || alleviated because, as Webcor acknowledges, TKI and Webcor are insured under the same
27 | wrap insurance policy under which the two parties are conducting a joint defense. As a

28 | result, although TKI filed a cross-complaint for indemnity, contribution, and declaratory

6
& | 2u29-0000032 MISSION PLACE'S REPLY TO WEBCOR CONSTRUCTION, INC.’S
3975141.1 SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION1 | relief regarding the duty to indemnify against Mission Place, it did not file a cross-

oOo wonnrn nn F&F W N

Rw NY NY NY NY N YN VN NO ww wm ee
on Dn wu F&F Ww NH KF§ FD O60 ON DH RF YW NY KF CO

LAW OFFICES

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

complaint against Webcor for indemnity or relief of any kind. In reality, Webcor’s
purported fear that TKI and Mission Place will both seek indemnity is nothing but a
misleading fiction meant to distract the court from the substance of the Assignment.
Finally, it is undisputed the Assignment of Contractor Agreement and Webcor’s
Consent and Agreement are properly executed written instruments. Webcor correctly
notes that a written instrument is presumptive evidence of consideration. Cal. Civ. Code §
1614. Webcor’s reliance on Star Pacific Investments, Inc. v. Oro Hills Ranch, Inc. (1981)
121 Cal. App. 3d 447, which has absolutely no bearing on the present action, is insufficient
to defeat this presumption. If Webcor was concerned it was not being compensated for the
Assignment between TKI and Mission Place, those concerns should have been raised at the
time of contracting in 2004. The fact that Webcor waited eight (8) years to raise this
argument shows Webcor’s current allegations of a lack of consideration are nothing more

than a desperate attempt to avoid its contractual obligations.

Vv. The Express Language of the Contractor Agreement, and Consent Thereto,
Requires Webcor to Defend and Indemnify Mission Place

Webcor erroneously argues the language of the Indemnification provision (MSA
0040) does not apply to Mission Place because the words “assigns” and “successors” are
not specifically included in the definition of “Indemnified Parties”. This argument is
severely flawed as the Assignment of Contractor Agreement clearly states TKI assigns to
Mission Place “all of [TKI’s] right, title and interest” in and to the Construction
Agreement. This means Mission Place steps into the shoes of TKI and is entitled to all of
TKI’s right, title and interest under the contract. The Indemnification provision plainly
states Webcor is obligated to indemnify and defend TKI. Since Mission Place has stepped
into the shoes of TKI, Webcor now owes Mission Place an immediate defense. The fact
that the words “successors” and “assigns” are not included in the indemnity provision is
immaterial where TKI clearly and unambiguously transferred all of its rights under the

contract to Mission Place. Webcor cannot create uncertainty where none exists.

7
zu29-0000082 MISSION PLACE'S REPLY TO WEBCOR CONSTRUCTION, INC.’S
3975141.1 SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION0 ON DN FF WBN

NY NY NY NY NY N HN YB HN wee ee eR Re
on Dun FF Ww NH KFK§ OG O60 ON DH FF Ww NY KY CS

LAW OFFICES
HAIGHT, BROWN &
BONESTEEL, LLP.

‘San Francisco

Webcor also incorrectly claims Mission Place cannot seek a defense and indemnity
from Webcor because Mission Place was not substituted as the “Company” or “Owner” in
the assignment documents. As addressed in Mission Place’s earlier Reply to Webcor’s
prior Opposition to the Motion for Summary Adjudication, this argument is completely
meritless. Section 14.9 of the Webcor contract (MSA 0046) states in pertinent part:

14.9 Assignment . . . The parties understand and agree that
Company may assign its interest in this Agreement to an affiliate or
successor in interest of Company and effective upon such assignment, all

references to “Company” herein shall_refer_to such _affiliate_or
successor. (emphasis added)

In the Consent and Agreement (MSA 0005) Webcor agreed to perform “pursuant to
the Contract,” that the Contract was a “valid and binding obligation,” and that it was
enforceable against Webcor “in accordance with its terms.” Furthermore, Webcor
affirmed that “all Project Documents shall be the property of Mission Place (as successor
Owner (as defined in the Contract) and/or Company (as defined in the Contract) under the
contract).” Webcor’s claim that Mission Place is not entitled to a defense because it is not

the “Owner” or “Company” under the contract is wholly without merit, completely

nonsensical, and must be disregarded.

VI. | Webcor’s Interpretation of the Insurance Provision in its Own Contract is
Manifestly Unreasonable and Does Not Excuse Webcor’s Duty to Defend

Webcor incorrectly claims the language of section 11.2 (MSA 0041) of the
Construction Agreement creates some sort of exception to Webcor’s duty to defend in
situations in which Mission Place is covered or compensated by insurance. This illogical
reading of the defense provision turns the entire indemnity provision inside out. To
ascertain the correct meaning of the defense obligation, the language must be read in the
context of the entire section. In reading the entire section, it is clear the contract sets forth
what Webcor must do, not what the “Indemnified Party” must do. Read in context, the

language cited by Webcor requires Webcor to pay for a defense, judgment, or other costs,

8
2u29-0000032 MISSION PLACE'S REPLY TO WEBCOR CONSTRUCTION, INC.’S
3975141.1 SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATIONLAW OFFICES
HAIGHT, BROWN

—

2
3
4
5
6
7
8
9

10
ul
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

&

BONESTEEL, L.LP.

‘San Francisco

unless those obligations are covered or compensated by Webcor’s insurance carrier.
Webcor’s perverse interpretation would turn the indemnity provision on its head and
effectively negate the entire purpose of the indemnity provision. Such an interpretation
would lead to the absurd result in which the “Indemnified Party” would have an incentive
not to purchase insurance out of fear it would not be defended. This result is not supported
by public policy or the express language of the contract.

If Webcor's interpretation were correct, then its obligation to defend would also be
conditioned on the result of future coverage litigation between an Indemnitee and its
insurance carrier. So, for example, under Webcor's interpretation, if an Indemnitee has
insurance that is providing a defense, Webcor argues it is excused from defending.
However, after trial, if the Indemnitee and its carrier engage in litigation over whether a
defense was owed, and the carrier won (i.e., no duty to defend and entitled to
reimbursement), then Webcor would owe a defense. But the case would be over, and there
would be nothing to defend.

The insurance exception to the duty to defend under Webcor's interpretation makes
the defense obligation illusory. Webcor's interpretation is manifestly unreasonable, would

lead to absurd results, and should be firmly rejected.

VII. Webcor Misreads the Objective of Mission Place’s Motion as well as the
Explicit Holding of Bramalea

Webcor’s argument that Mission Place lacks standing to assert attorney’s fees is
misplaced as Webcor misunderstands the objective of Mission Place’s motion as well as
the express holding of Bramalea California, Inc. v. Reliable Interiors Inc., (2004) 119 Cal.
App. 4th 468. While Mission Place will eventually seek recovery of defense costs, the
present motion only seeks an order declaring that Webcor owes Mission Place an
immediate defense. Nothing in either Crawford or Bramalea creates an element of
damages when determining whether or not a duty to defend exists. As such, the Bramalea

case has nothing to do with the Motion before the Court.

9
zu28. 32 MISSION PLACE'S REPLY TO WEBCOR CONSTRUCTION, INC.’S
39751411 SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATIONLAW OFFICES
HAIGHT, BROWN

1] VIII. Conclusion
For the reasons stated above, and for those stated in Mission Place’s motion for

| summary adjudication and supplemental briefing, Mission Place is entitled to a judicial

2
3
4 | declaration as to whether Webcor owes a duty to defend as a matter of law. Simply stated,
5 | Plaintiffs have made construction defect claims, Webcor was paid a substantial fee to

6

construct this project, and Webcor agreed in the Construction Agreement to indemnify and

7 | defend the Owner from claims or lawsuits arising from Webcor’s misconduct or defects in
8 | Webcor’s work. Webcor even signed a Consent and Agreement in which it consented to
9 | the Assignment of Contractor Agreement from TKI to Mission Place and expressly agreed

10 | to perform pursuant to the contract. Under California Civil Code section 2778(4) and

11 | Crawford, the duty to defend Mission Place arose when Mission Place tendered it to Webcor.

12 | Thus, this Court should find an immediate duty to defend and hold Webcor to its promises.

13

14

15

16

Dated: August 17, 2012

Zachary Ww. Shine

17 Attorneys for Defendants and Cross-
Defendants

18 Mission Place LLC, et al.

28)

10
& MISSION PLACE'S REPLY TO WEBCOR CONSTRUCTION, INC.’S

BONESTEEL LLP | see? SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION

San Francisco