Document for 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 4:04 pm

Case Number: CGC-08-478453
Filing Date: Aug-17-2012 4:03
Filed by: CAROL BALISTRERI

Juke Box: 001 Image: 03730072
GENERIC CIVIL FILING (NO FEE)

BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD
AND KING LLC etal ~

001003730072

Instructions:
Please place this sheet on top of the document to be scanned.oO ON DA FF Ww YY

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

Los Angeles

Charles A. Hansen (Bar No. 76679)

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

Oakland, California 94607-4036

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,
MISSION PLACE'S RESPONSE TO
Plaintiff, WEBCOR'S SUPPLEMENTAL
STATEMENT OF ADDITIONAL
v. UNDISPUTED MATERIAL FACTS IN

SUPPORT OF ITS OPPOSITION TO
CATELLUS THIRD AND KING LLC, et MISSION PLACE'S MOTION FOR

al., SUMMARY ADJUDICATION
Defendants. Date: August 24, 2012
) Time: 10:00 a.m.
) Dept: 304
AND RELATED CROSS-ACTIONS } Judge: Hon. Richard A. Kramer

Pursuant to California Code of Civil Procedure section 437c, 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) (hereinafter collectively referred to as “Mission Place” or “Cross-
Complainants”) hereby submit this Response to Webcor’s Supplemental Statement of

1

‘7u29-0000032 MISSION PLACE'S RESPONSE TO WEBCOR'S SUPPLEMENTAL
3976821.1 STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS1 | Additional Undisputed Material Facts in support of its Opposition to Mission Place’s
2 | Motion for Summary Adjudication.
3 | RESPONSE TO WEBCOR’S SUPPLEMENTAL STATEMENT OF ADDITIONAL
4 UNDISPUTED MATERAIL FACTS
5 ISSUE NO. 1: This Court Should Deny Mission Place, LLC’s And Its
6 | Affiliates’ Motion For Summary Adjudication Under Its Seventh Cause of Action For
7 | Declaratory Relief Because There Are Numerous Triable Issues Of Material Fact As
8 | To The Validity, Scope, And Intent Of The Parties Relative To The Purported And
9 | Disputed Assignment Documents, And What Duties May Or May Not Exist
10 | Thereunder
11
WEBCOR’S ADDITIONAL
12 || UNDISPUTED MATERIAL Facts | MISSION FLACK ’s Rese ONsE AND
AND SUPPORTING EVIDENCE
13
1. This lawsuit was initiated by 1. Undisputed.
14]) Plaintiff BEACON RESIDENTIAL
COMMUNITY ASSOCIATION
15 || “BCRA”) against, inter alia, THIRD
AND KING INVESTORS, LLC
16 || (“TKI”) that originally developed and
owned the Project which is defined as
17]| the property located at 250 and 260
King Street, San Francisco, CA with
18 || 595 condominium units and various
19 commercial spaces.
Supporting Evidence: Declaration of
20 || Gregory T. Hanson (“Hanson Decl.), at
4] 2. and Exhibit “H” thereto (offered
21 only for its existence and not for the
22 || 2, MISSION PLACE purchased the 2. Undisputed.
Project and then sold the residential
23 || units as condominiums to individuals.
24 || Supporting Evidence: Deposition
Testimony of Robert Schlesinger
25 || (“Schlesinger Depo.”) Vol. I, at 37:13-
18 attached as Exhibit “D” to Hanson
26 -
3. Plaintiff alleges on behalf of itself, | 3- Undisputed.
27! individual homeowners and the
28 Commercial Association in its Third
LAW OFFICES 2
HAIGHT, BROWN & MISSION PLACE'S RESPONSE TO WEBCOR'S SUPPLEMENTAL

BONESTEEL, L.LP, 2U29-0000032

Los Angeles 3976821.1 STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTSOo ON DH FF WY —

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

WEBCOR’S ADDITIONAL
UNDISPUTED MATERIAL FACTS
AND SUPPORTING EVIDENCE

MISSION PLACE’S RESPONSE AND
SUPPORTING EVIDENCE

claims, including claims for
|| construction defects and concealment
against MISSION PLACE and others.

Supporting Evidence: Hanson Decl.,
at Bond xhibit “H” thereto.

4. In December 2010, MISSION
PLACE filed their Motion for Summary
Adjudication against WEBCOR (the
general contractor) and HKS, INC., one
of the architectural firms for the Project.

Supporting Evidence: Hanson Decl.,
at vi

4. Undisputed.

5. After the original filing of the
Motion for Summary Adjudication,
Plaintiff filed its Third Amended
Complaint on or about April 27, 2011,
and WEBCOR answered said Third
Amended Complaint on or about
October 6, 2011.

5. Undisputed.

Supporting Evidence: Hanson Decl.,
45 iE, hibits “H’ and “T” thereto.

6. The motion requests that the Court
ant summary adjudication as to
ISSION PLACE’s Seventh Cause of

Action for Declaratory Relief based

upon MISSION PLACE’s assertion that
EBCOR is contractually obligated to

defend MISSION PLACE for the
claims asserted by the Plaintiff.

Supporting Evidence: Hanson Decl.,
at J 6.

6. Undisputed. For clarification, Mission
Place is seeking a declaration that Webcor
owes Mission Place an immediate defense
pursuant to its contract.

7. The motion was heard on or about
March 3, 2011, whereat the Court
ted WEBCOR’S request that the
‘ourt postpone ruling on the motion
until further discovery occurred.

Su porting Evidence: Hanson Decl.,
att

7. Undisputed.

8. Since the hearing on the motion in
2011 a number of relevant depositions
have occurred.

8. Undisputed.

3

MISSION PLACE'S RESPONSE TO WEBCOR'S SUPPLEMENTAL
3976821.1 STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS

ZU29-0000032—

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LAW OFFICES
HAIGHT, BROWN &
BONESTEEL, LLLP.
Los Angeles

WEBCOR’S ADDITIONAL
UNDISPUTED MATERIAL FACTS
AND SUPPORTING EVIDENCE

MISSION PLACE’S RESPONSE AND
SUPPORTING EVIDENCE

Sy porting Evidence: Hanson Decl.
at $B.

9. The Consent and Agreement at issue
states in relevant part: “Contractor
[Webcor] represents to Mission Place
that (i) the Contract is in full force and
effect ..., and, (xii) Contractor has
heretofore assigned to Owner all
guaranties and warranties relating to the
Project.”

Supporting Evidence: Deposition of
John Bowles (“Bowles Depo.”) at 12:1-
7; and 20:23-21:20, attached to Hanson
Decl. as Exhibit E; Declaration of John
Bowles in Support of Opposition to
MSA at § 7, attached to Hanson Decl.
as Exhibit “J”: Declaration of John
Tashjian (“Tashjian Decl.”), Exhibit 2
to MSA , Bates MSA 0005-0009.

9. Undisputed that the Consent and
Agreement contains these words. However,
disputed to the extent Webcor implies this
“statement” is the only relevant portion of
the Consent and Agreement. Mission Place
refers the Court to the entire Consent and
Agreement contained at Ex. 2, MSA 0005
and Mission Place's Reply Briefs analyzing
the Consent and Agreement in further detail.
The Consent and Agreement 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. This
portion of the Consent and Agreement has
no bearing 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
implies that these are the only relevant
portions of the Consent and Agreement.
This 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.”

4

MISSION PLACE'S RESPONSE TO WEBCOR'S SUPPLEMENTAL

ZU29-0000032
3976821.1

STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS0 ON DH PF WN

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

Los Angeles

WEBCOR’S ADDITIONAL
UNDISPUTED MATERIAL FACTS
AND SUPPORTING EVIDENCE

MISSION PLACE’S RESPONSE AND
SUPPORTING EVIDENCE

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.” By isolating
these two unconnected sections, and
characterizing this as the “relevant part” of
the Consent and Agreement, Webcor gives
the false impression there is no more
relevant language in the document.

10. The relevant portions of the
Assignment of Contractor
Agreement are:

“FOR VALUE received [TKI] ...
hereby assigns to MISSION PLACE,
LLC, ... on a non-exclusive basis
(with a reservation of all rights), “AS
IS” and without warranty, except as
expressly provided in that certain
Mission Bay North Agreement of
Purchase and Sale ... by and between
(TKI] and Mission Place ..., all of its
right, title and interest in and to (a)
that certain Construction Agreement
dated August 24, 2001 by and between
[TKI] and [WEBCOR], together with
any and all amendments thereto
(collectively the “Contract”) relating to
the construction of the Property, ... and
() all warranties made by Contractor
or the benefit of Company and/or
Owner under the Contract; including
without limitation, those warranties
described in Section 2.4 of the General
Conditions of the Contract, and those
subcontractor warranties described in
Exhibit I of the Contract; provided,
however that [TKI] does not assign to
[MISSION PLACE], and [MISSION
PLACE] does not assume from [TKI],
any of the obligations or liabilities o
[TKI] ..., it being the intention of the

parties hereto that only the rights and

10. Undisputed that the Assignment of
Contractor Agreement contains these words.
However, disputed to the extent Webcor
implies these are the only “relevant
portions” of the Assignment. See, Ex. 1,
MSA 0001.

5

MISSION PLACE'S RESPONSE TO WEBCOR'S SUPPLEMENTAL
3976821.1 STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS

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

Los Angeles

WEBCOR’S ADDITIONAL
UNDISPUTED MATERIAL FACTS
AND SUPPORTING EVIDENCE

MISSION PLACE’S RESPONSE AND
SUPPORTING EVIDENCE

without limitation, all warranties
thereunder) be assigned to [MISSION
PLACE] on a non-exclusive basis (i.e.
[TK] retains all rights and benefits
under the Contract.” . .. (Emphasis
added.)

Supporting Evidence: Tashjian Depo.
Vol, I, at 140:18-24, attached to Hanson
Decl. as Exhibit “G”; Tashjian Decl.,
Exhibit 1 to MSA, Bates MSA 0001-

| Q004.

11. John Bowles, the signatory for
WEBCOR on the Consent and
Agreement believed that by signing the
document, WEBCOR was assigning
guarantees and warranties to MISSION
PLACE, and that MISSION understood
that, since the only reference to what
specific rights were actually being
assigned stated that warranties and
guarantees were being assigned.

Supporting Evidence: Bowles Decl. at
48 attached to Hanson Decl. as Exhibit
“J’; Bowles Supplemental Declaration
(“Bowles Supp. Decl.) attached as

11. See Mission Place’s Evidentiary
Objections to Declaration of John C. Bowles
and Evidentiary Objections to the
Supplemental Declaration of John C.
Bowles.

Disputed. Mission Place did not understand
the Assignment of Contractor Agreement to
mean that only guarantees and warranties
were being assigned. Mr. Bowles, as the
representative of Webcor, cannot testify to
what Mission Place understood. See,
Amended Separate Statement from Mission
Place, Fact No. 5.

Exhibit “K” to Hanson Decl. at J 2;

Bowles Depo. attached to the Hanson

12. WEBCOR did not draft either the 12. Disputed to the extent it implies that

Consent and Agreement or the Webcor was not given an opportunity to

Assignment of Contractor Agreement. make changes or did not m e changes to
. . ither document. Mission Place Ex. 20.

Supporting Evidence: Bowles Supp. «I . >

Deck at {3 attached to Hanson Decl. as MSA 0304, email from John Bowles.

| Exhibit “K.”

13. Representatives of TKI and/or a 13. Disputed to the extent it implies that

Mission Place-related entity drafted neither HKS nor Webcor were given an

both the Consent and Agreement and opportunity to comment or make changes to

the Assignment of Contractor the documents. Mission Place Exhibits 18

Agreement. to 22.

Supporting Evidence: Deposition of

Jeffrey Worthe, Vol. 1 (“Worthe Depo.

Vol. 1”) at 27:3-7, 28:5-21, and 168:6—

169:9 attached to Hanson Decl. as

Exhibit “L”; Tashjian Depo Vol. 1, at

6

ZU29-0000032

MISSION PLACE'S RESPONSE TO WEBCOR'S SUPPLEMENTAL

3976821.1 STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS1
3 || UNDISPUIED MATERIAL FACTS | MISSION PLACE’S RESPONSE AND
AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
3 to Hanson Decl. as Exhibit “G”;
4|| Tashjian Depo., Vol. 2, at 215:25;
216:23; attached to Hanson Decl. as
5 || Exhibit “G”; Deposition of Keith
Anderson. (“Anderson Depo.”) at
6 || 119:6-18 attached as Exhibit “F” to
Hanson Decl.; Worthe Depo. Vol. 1, at
7 ||| 154:20-155:24 attached as Exhibit “L”
to Hanson Decl.; Tashjian Supplemental
8
9 14. WEBCOR’s belief and intent with | 14. See Mission Place’s Evidentiary
the cone a an see was that it Objections to Declaration of John C. Bowles
was con: in assignment of jus + denti + oti
10 ]) its guarantees and warranties relating to and Evidentiary Objections to the
the Project to MISSION PLACE, and _| Supplemental Declaration of John C.
11 |} not all of its obligations under the Bowles.
b contract.
Su porting Evidence: Bowles’ Decl.
13 || at ? 8 attached as Exhibit “J” to Hanson
Decl.; Bowles’ Depo. at 20:23-21:10
14 “