Stipulation,Agreement: 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
Apr-27-2011 10:58 am

Case Number: CGC-08-478453
Filing Date: Apr-27-2011 10:53
Juke Box: 001 Image: 03195019
ORDER

EACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LL

001003195019

Instructions:
Please place this sheet on top of the document to be scanned.APR 25 2011

San Francisco County Superior Court
1 Hon. Richard M. Sabraw (Ret.) "4
Special Master ® APR 27 2011

2 | JAMS

Two Embarcadero Center CLERK OF THE,COURT
3 | Suite 1500 BY: A

San Francisco, Galifomia 94111 . Deputy Clerk
4 | Telephone: (ag 982-5267

Facsimile: 982-5287
3
6
7 :
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO

10

11 |BEACON RESIDENTIAL COMMUNITY ) Case No. CGC 08-478453
ASSOCIATION,

12 : [Assigned to Judge Richard A. Kramer ]
Plaintiff,
13 STIPULATED SIXTH CASE
v. MANAGEMENT ORDER
14
CATELLUS THIRD AND KING LLC; Complaint Filed: August 8, 2008
15 | CATELLUS DEVELOPMENT Cross-Complaint Filed: August 17, 2010
CORPORATION; CATELLUS Trial Date: None

16 | COMMERCIAL DEVELOPMENT
CORP.;CATELLUS OPERATING

7 LIMITED PARTNERSHIP; CATELLUS
URBAN DEVELOPMENT

18 } CORPORATION; THIRD AND KING
INVESTORS LLC; PROLOGIS;

19 | MISSION PLACE LLC; MISSION

| PLACE MEZZANINE LLC; MISSION
20 | PLACE MEZZ HOLDINGS) LLC,
MISSION PLACE PARTNERS LLC;

21 | CENTURION REAL ESTATE
INVESTORS IV, LLC; CENTURION
22 | REAL ESTATE PARTNERS, LLC;
CENTURION PARTNERS LLC;

23 | WEBCOR CONSTRUCTION INC.;
WEBCOR BUILDERS, INC.; WEBCOR,
24 | CONSTRUCTION, INC. individually an
doing business as WEBCOR BUILD

25 || WEBCOR CONSTRUCTION LP
individually and doing business as

26 | WEBCOR BUILDERS; SKIDMORE
OWINGS & MERRILL LLP; HKS, INC;
27 |HKS ARCHITECTS, INC; HKS, INC,
individually and doing business as HKS
28 | ARCHITECTS, INC., and DOES 1 through

>

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a8 STIPULATED SIXTH CASE MANAGEMENT ORDER1
2

Defendants.

3 | AND RELATED CROSS-ACTION

4
5

A Case Management Conference was conducted on April 5, 2011 at 8:30 a.m. in the

6 | above-referenced matter, the Hon. Ronald A. Sabraw (Ret.) presiding as referee in the

7

23
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judicial reference and as Special Master in the Superior Court action. The respective
parties were represented by counsel as follows:

a) Ann Rankin, Ken Katzoff and Terry Wilkens appeared for Plaintiff Beacon
Residential Community Association ("BRCA");

b) Matthew Graham and Steven M, Cvitanovic appeared 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);

c) Rick Young appeared for Defendant Skidmore Owings & Merrill LLP;

d) Steven H. Schwartz appeared by telephone for Defendant HKS, Inc. and
HKS Architects, Inc.;

e) David Webster and John A. Koeppel appeared for Defendants and Cross-
complainants Prologis; Third And King Investors LLC; Catellus Urban Development
Corporation; Catellus Development Corporation; Catellus Third And King Investors LLC;
Catellus Commercial Development Corporation; and Catellus Operating Limited
Partnership;

f) C. Erin Friday appeared by telephone for Defendant and Cross-complainant

25 | Webcor Construction, Inc. dba Webcor Builders, Inc.; and

26

8) Joseph Schultz appeared by telephone for Defendant and Cross-complainant

27 | Window Solutions, Inc.

28

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3798569 STIPULATED SIXTH CASE MANAGEMENT ORDERwl

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The parties also participated in a lengthy conference call on April 13, 2011 to
finalize this order.

The parties agree to the following:

1 PRIVILEGE CLAIMS: A dispute arose regarding the inadvertent disclosure
of certain documents that were identified in a letter from Haight, Brown & Bonesteel,
LLP, dated March 10, 2011. In addition, BRCA produced executive session meeting
minutes that were possibly privileged. Counsel for BRCA has agreed to withdraw the
privilege claims to these documents but requests that certain information in the documents
not be the subject of examination. In order to ensure that all parties have an understanding
of what issues are appropriate for examination and/or to evaluate whether further orders
from the Special Master are needed, the parties agree that by April 20, 2011 counsel for
Mission Place will send out a list of the documents described and, to the extent feasible,
the actual documents to all parties.

Within seven (7) days of receiving the list / documents, BRCA will provide a list of
redactions to the documents and/or a statement regarding which matters in the subject
documents are not appropriate for examination.

If any party disputes the redactions or limitations on the use of the documents, that
party shall meet and confer with BRCA. If the issue remains undecided following meet

19 jens confer efforts, the issue will be decided by the Special Master.

2. PMK Depositions

There is presently no deadline for PMK or percipient witness depositions. This is
without prejudice to any party requesting such a deadline.

No later than April 20, 2011, counsel for BRCA shall serve notice on all parties of
the PMK depositions that it wishes to take as well as available dates. This list is without
prejudice to BRCA conducting additional PMK. depositions from any party at a later time.
Within seven days of BRCA's list, all parties to whom the BRCA list was directed will
provide a response indicating whether the PMK is available on the requested date and, if

‘2U29-0000032

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3795569 STIPULATED SIXTH CASE MANAGEMENT ORDER1 | not, the next available date(s). All PMK / percipient witness depositions will continue
2 | from day to day until completed.

3 The deposition of SOM witness Steven Solbel will take place on May 6, 2011.
4 | The deposition of SOM witness Tim Waters will take place on May 11 and 12,
542011.

6 The deposition of Mission Place PMK. Schlesinger will be taken June 22, 2011 —

7 | June 24, 2011.

8 3. WRITTEN DISCOVERY DEADLINES

9 The deadline to serve written discovery is extended to May 2, 2011. All discovery
10 | shall be served electronically in Word on all counsel. Responses are due within thirty days

il \* service. Responses shall include the question with the responses.

12 4. | HOMEOWNER SUBPOENAS
13 Counsel for BRCA is undertaking an effort to obtain homeowner documents in lieu
4 oc Mission Place and Catellus serving subpoenas on homeowners. Mission Place and

15 | Catellus agree that the only documents homeowners need to produce are the: 1) sales

16 | contracts / agreements, 2) transfer disclosure documents, 3) any documents that purport to
17 | describe any construction defects at the Beacon or the status of the subject litigation.

18 | Counsel for BRCA estimates that the first batch of homeowner responses will be available
19 I" ot about April 22, 2011.

Mission Place and Catellus withdraw any subpoenas and/or request for documents
21 | directed to any owner who purchased from Mission Place.

22 Mission Place and Catellus will provide a form of verification to counsel for BRCA
23 | to provide to homeowners so that the records will qualify as a business record.

24 Upon the completion of the production of the homeowner documents, Mission

25 | Place and Catellus will notify BRCA of the identity of homeowners it wishes to depose.
26 | The parties shall meet and confer in regards to any dispute about the number of

27 }homeowners depositions.

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3795569 STIPULATED SIXTH CASE MANAGEMENT ORDER5. DISCOVERY REGARDING SUMMARY JUDGMENT
Pursuant to the Order of Judge Richard Kramer, Mission Place, HKS and Webcor

are to conduct discovery on the issues relevant to the Motion for Summary Adjudication
on the Duty to Defend.

The parties to the Motion agree that any witness who is deposed may, at the election
of the party producing that witness, limit the examination to issues relevant to the Motion
without prejudice to any party thereafter deposing that witness on issues that are otherwise
televant to the case in general.

Deposition dates for John Bowles, Jack Price and Keith Anderson shall be provided

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by April 20, 2011. The parties agree to substantially complete these depositions before
end of May 2011. This deadline may be extended without leave of the Special Master.

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The parties may serve written discovery on issues relevant to the Motion in addition
13 | to depositions. The parties agree to exchange this discovery by e-mail no later than April
14] 20 and will thereafter meet and confer should there by any issues regarding the scope and
15 {number of discovery requests. Responses will be due within 14 days of electronic service
16 | and extensions may be requested and granted without leave from the Special Master.

17 To the extent not previously produced, the parties agree to search for and produce
18 | documents, including e-mails, concerning the Purchase and Sale Agreement (including

19 | amendments), the scope of the assignment, and the consent,

20 | John Tashjian's deposition on summary judgment issues will take place on April 27,

2142011 at 9:30 a.m. at Aiken & Welch in Oakland.
22 6. | BRCA PRODUCTION OF ELECTRONIC DOCUMENTS
23 By April 22, 2011, defendants, (through counsel for Mission Place) shall provide

24 | their requested search terms to BRCA for purposes of obtaining e-mails from BRCA
25 | current board members. BRCA agrees to produce the e-mails from Mr. Bhatia subject to
26 | moving for a protective order to limit the search terms. The parties could not agree on

27 | whether other current board members should produce e-mails. Plaintiff intends to move
28 | for a protective order on the e-mails. SOM requests that Judge Sabraw order BRCA to

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3798869 STIPULATED SIXTH CASE MANAGEMENT ORDER1 | search the e-mails of all current board members. Defendants agree that any

2 | communications solely between Board members and any lawyer for the BRCA do not

3 | need to be identified on a privilege log. After the parties agree on the search terms and/or
4 | after Judge Sabraw has provided the terms, the BRCA shall provide a time estimate for

5 | production within thirty days.

6 BRCA shall review its prior production and privilege log for purposes of

7 | determining whether any documents were improperly withheld. To the extent that

8 | documents were improperly withheld on the basis of attorney-client privilege (or some

9 | other privilege) those documents shall be produced and an updated privilege log provided
10 | to the Defendants no later than May 31, 2011.

ii 7. DEFENSE RESPONSE

12 There shall be a Defense Response to the BRCA's Statement of Claims. The

13 | Defense Response shail be privileged under Evidence Code section 1119, shall not be

14 | admissible as evidence at trial, and shall not be used during the deposition of an expert

15 |

16 | or her testimony.

17 The Defense Response shall generally track and respond to the BRCA's Statement

unless the expert who generated the content relies upon the document for purposes of his

18 | of Claims. The Defense Response shall also contain a scope and cost of repair for the

19 | Beacon project. The parties do not agree whether the Defense Response must identify

20 | whether a condition violates any performance standards of SB800 and thus reserve all

21 [rights and arguments on the issue pending further meet and confer efforts and resolution by
22 | the Special Master,

23 The Defense Response shall also provide a defense bid for the BRCA scope of

24 | repair.
25 There is no specific due date of the Defense Response, but the defendants agree that
26 || by June 30 they will provide an estimate of when such a response can be completed.

27| BRCA agrees to reserve all rights with respect to requesting a deadline for the Defense
28 | Response should the estimated date not be acceptable to BRCA.

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3195569 STIPULATED SIXTH CASE MANAGEMENT ORDER8. DEFENSE INSPECTIONS AND TESTING
Defense visual and destructive testing for purposes of preparing a defense response

and/or for the mediation shall commence on or before June 30, 2011. This testing is
without prejudice to further investigations and testing by the defendants at some later date.
For inspections and testing in common ateas, the Defendants shall provide BRCA

with a description of the proposed inspections and testing (including location, duration,
type testing, and general description of testing) no later than 14 days prior to such
inspections and testing,

For inspections and testing in residential units, the parties will continue to meet and

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10 | confer with respect to access (including any specific units requested for testing, the number

11 | of units, the type of testing, and the duration) so that BRCA can have a reasonable period

(: time to notify the unit owners and coordinate access. A meet and confer conference call
13 | with take place on May 2 at 11:00 a.m. to discuss these issues, unless the patties have,
14 | prior to then, substantially completed the meet and confer so that such a call is not
15 necessary.
16 | 9. EXPERT DISCLOSURE

The parties agree that once a trial date is set they will discuss adjusting the expert

18 | disclosure date to allow for more time in completing expert discovery.
19 10. MEDIATION

| The deadline to complete the first mediation of this matter shall be September 30,
21/2011. The mediator shall be David Rudy. The patties may elect to schedule subsequent
22 | mediations following the first mediation.
23 11. JOINT EXPERT MERTINGS
24 The parties are currently scheduling a joint expert meeting for the heat gain issue

25 | and a meeting for the other construction defect issues. Both expert meetings are to be

26 | completed by May 31, 2011. The meetings shall be privileged under Evidence Code

27 | section 1119 and the information discussed shall not be admissible as evidence at trial, and
28 | shall not be used during the deposition of any experts. Dave Rudy may be present at both

229-0000032

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[379856 oem STIPULATED SIXTH CASE MANAGEMENT ORDER1 i meetings. Attorneys may be present at the meeting but shall endeavor to be passive

2 | participants,
3} Dated: April 15, 2011 Respectfully submitted,
4 f-
| Dated: (ufovd IS; Voll 4 OK ANN RANKIN
7
51 pated: Apr foe ACK & DEAN
9 NESTBEL,LLP
10
fl
12) Dated: ROPERS, MAJESKI, KOHN &
B ne BENTLEY LLP
WOOD, SMITH, HENNING &
14 BERMAN LLP
15 By:
‘Join A Roeppel
16 Todd J. Werpal
vl David 8, Webster
Altomeys for CATELLUS
ig DEFENDANTS
19 I Dated: GORDON & REES, LLP
20 |
a By Sandy Kaplan
pian
22 Cc. Hen Friday
Attorneys for WEBCOR DEFENDANTS
23
24 | Dated: SCHWARTZ & JANZEN LLP
25 By:
26 ‘Steven EL Schwartz
Attorneys for HKS DEFENDANTS
27
28

2029.0000032
3795569 8-

participants,
Dated: April 15, 2011

Dated:

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Dated:

94 | Dated:

20029.0000032
3793869

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meetings. Attorneys may be present at the meeting but shall endeavor to be passive

Respectfully submitted,

LAW OFFICES OF ANN RANKIN
KATZOFF & RIGGS

By:
Ann Rankin

WENDEL, ROSEN, BLACK & DEAN
HAIGHT, BROWN & BONESTEEL,LLP

By
Steven Cvitanovic

ROPERS, MAIESKI,.KOHN &
BENTLEY

WOOD, SMITH, HENNING &
BERMAN LLP

By:

ohn. A. ko
Todd.J. Wenz
Aton or CATEL LUS

ttorneys for
DEFENDANTS

GORDON & REES, LLP

~ Sandy Kaplan
Cc ea Friday.
Attorneys for WEBCOR DEFENDANTS

SCHWARTZ & JANZEN LLP

By:
Steven H. Schwartz ~~~

Attomeys for HES DEFENDANTS.wend aw & WY NY

10

meetings. Attorneys may be present at the meeting but shall endeavor to be passive

participants.

Dated: April 15, 2011

Dated:

Dated:

Dated:

Dated:

Dated:

20329.0000032.
3795869.

mee

Respectfully submitted,

LAW OFFICES OF ANN RANKIN
KATZOFF & RIGGS

By:
Ann Rankin

WENDEL, ROSEN, BLACK & DEAN
HAIGHT, BROWN & BONESTEEL,LLP

By
Steven Cvitanovic

ROPERS, MAJESKI, KOHN &
BENTLEY LLP
WOOD, SMITH, HENNING &
BERMAN LLP

By:_
Tohn A. Koeppel
Todd J. Wenzel
David S. Webster
Attorneys for CATELLUS
DEI ANTS

GORDON & REES, LLP
or Genet) ———
ane
Cc. Eon Fuday
Attorneys for WEBCOR DEFENDANTS
SCHWARTZ & JANZEN LLP

By:_ :
Steven H Schwartz
Attorneys for HKS DEFENDANTS1 imestings. Attorneys may be present.at the mesting. but shall endeavor fo be passive
2 | pattivipaits,
3 |Dated: April 15, 2011 Respentfully subinitted,
4
Dated: LAW OFFICES OF ANN RANKIN
5 KATZOEF & RIGGS
6.
: By
7 Aan Raukits
5) roateay WENDEL, ROSEN, BLACK, & DBAN
9 HAIGHT, BROWN & BONESTEEL.LLE
1 a
Wl Steven Cvitanowvie
13 | ated: 4 lis [yy ROPERS, MAIRSSL & KOHN & :
1B BENTLEY , , :
1a BERMAN L ~
1s
16

iy Attomeys for CATELLUS:
fg Ce come sae a. DEFENDANTS
15 Dated: . GORDON & RBES, LLE

Cc, eae

Attomeys for  WwaRCOR DEFENDANTS:

os BM
2
3
ag | Dated: Lieflaell SCHWART2 & TANZEN LiF
35] tet: 6
26 foven Sse —1 | Dated:, Ap cll S, zoe ROBLES, CASTLES & MEREDITH LLP
2
By:
3 ames P. Castles
Richard Young
4 | Attomeys for SOM DEF ITS
5 | Dated: MCCARTH & MCCARTHY, LLP
6
By:
7 Kevin McCarthy
Joseph Schultz
8 Attorneys for Window Solutions, Inc.
9]
10 yr IS SO RECOMMENDED
11 | Dated: :
12
By:
13 on, Rona . Sabraw (Ret.
| Special Master
14
15 JIT IS SO ORDERED
16 } Dated:
17
By:
18 f on. Richard A. Kramer
shidge
19
20}
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22
;
24
25
26
27
28 |
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Dated: ROBLES, CASTLES & MEREDITH LLP
By:
Janes P, Castles
Richard You gung
Attomeys for SOM DEFENDANTS
Dated: \ & MCCARTHY, LLP
By:
I oseph Schaliz, matt
Attomeys for Window Solotions, Inc.
iTISSO RECOMMENDED
Dated: 20 201} 5.