Complaint,Petition: BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al

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                                CATT

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Mar-17-2011 11:26 am

Case Number: CGC-08-478453
Filing Date: Mar-17-2011 11:23
Juke Box: 001 Image: 03155513
COMPLAINT

-EACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD ANC KING LL

001003155513

Instructions:

Please place this sheet on top of the document to be scanned.28

ANGWS A TERRY LLP

DANIEL E. ANGIUS (CA State Bar No. 075708)
JULIE M. MOUSER (CA State Bar No, 199794)
KEVIN Canty (CA State Bar No. 226850)
Jimmy SANH L. Ly (CA State Bar No. 240930)
ANGIUS & TERRY LLP

1990 N. California Blvd., Suite 950

P. O. Box 8077

Walnut Creek, CA 94596

Telephone: (925) 939-9933

Facsimile: (925) 939-9934

Attorneys for Plaintiff

MAR 27 201

LERK Q&,THE COU
BY:

AT

BEACON RESIDENTIAL COMMUNITY ASSOCIATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY
ASSOCIATION,

Plaintiff,

eee

v.

CATELLUS THIRD AND KING LLC,
CATELLUS DEVELOPMENT
CORPORATION; CATELLUS
COMMERCIAL DEVELOPMENT CORP.;
CATELLUS OPERATING LIMITED
PARTNERSHIP; CATELLUS URBAN
DEVELOPMENT CORPORATION; THIRD
AND KING INVESTORS LLC; PROLOGIS ;
MISSION PLACE LLC; MISSION PLACE
MEZZANINE LLC; MISSION PLACE MEZZ
HOLDINGS LLC; MISSION PLACE
PARTNERS LLC; CENTURION REAL
ESTATE INVESTORS IV, LLC; CENTURION
REAL ESTATE PARTNERS, LLC;
CENTURION PARTNERS LLC; WEBCOR
CONSTRUCTION, INC.; WEBCOR
BUILDERS, INC.; WEBCOR
CONSTRUCTION, INC. individually and doing
business as WEBCOR BUILDERS; WEBCOR
CONSTRUCTION LP individually and doing
business as WEBCOR BUILDERS;
SKIDMORE OWINGS & MERRILL LLP;
HKS, INC.; HKS ARCHITECTS, INC.; HKS,
INC. individually and doing business as HKS
ARCHITECTS, INC. and DOES | through 200,

ee ee eee

Defendants.

1

Case No. CGC 08-478453

SECOND AMENDED COMPLAINT FOR
DAMAGES
(Amount demanded exceeds $50,000.)

By FAx

SECOND AMENDED COMPLAINT28]

Anais & TERRY LL?

1923) 929-9933

GENERAL ALLEGATIONS

1. Plaintiff BEACON RESIDENTIAL COMMUNITY ASSOCIATION (hereafter
referred to as the "Association" and/or "Plaintiff™) is a non-profit mutual benefit corporation duly
organized and existing under the laws of the State of California, composed of the owners of the units
within the BEACON RESIDENTIAL COMMUNITY development (hereafter referred to as
“owners"). The BEACON RESIDENTIAL COMMUNITY ASSOCIATION development and
common areas consist of no less than Five Hundred and Ninety Five (595) condominium units and
common areas which are located on and about 250 King Street and 260 King Street, San Francisco,
California.

The BEACON RESIDENTIAL COMMUNITY development is also more particularly

described in the following documents:

(1) Amended and Restated Declaration of Covenants, Conditions, Restrictions And
Reservation of Easements for Mission Place (Residential), including Exhibits, (hereafter
referred to as "CC&R's") which was recorded with the Recorder for the City and County of
San Francisco on or about December 28, 2004 as document number 2004-H879167-00.

The real property which is described above, including all improvements constructed thereon
and all property heretofore and hereafter annexed by the Association pursuant to the CC&R's, shall
be referred to as the “Subject Property.”

2. During or about November Y, 2004 the Articles of Incorporation of Mission Place
Residential Community Association were filed with the Secretary of State for the State of
California.

3. During or about December 28, 2004, in the official records of the City and County of
San Francisco, the Association caused to be recorded the Amended and Restated Declaration of
Covenants, Conditions, Restrictions And Reservation of Easements for Mission Place
(Residential).

4, During, about or after February 10, 2005, due and proper By-Laws of said

2
SECOND AMENDED COMPLAINToU wm NR OO OH Rh WON

NoNMN RM RP WN NN Ee ee ee ee Be Se Se
aU RA BON = SG we AN DH HW N =

28

ANGHUS& TERRY LIP.

(925) 939-9939

Association were duly adopted at a meeting of the Board of Directors. The principal place of
business of the Plaintiff Association is in the City and County of San Francisco, State of California.

5. During or about May 2, 2005, a Certificate of Amendment of Articles of
Incorporation of Mission Place Residential Community Association was filed with the Secretary of
State for the State of California. The Certificate of Amendment caused the name of the Plaintiff
Association to be changed from “Mission Place Residential Community Association” to “Beacon
Residential Community Association.”

6. Plaintiff, in accordance with the aforesaid By-Laws and Declaration of Covenants,
Conditions and Restrictions, has the sole and exclusive right and duty to manage, operate, control,
repair, replace, and restore the common area and the obligation to maintain, preserve, and repair
certain of the individually owned areas of the Subject Property, to let contracts to accomplish its
duties and obligations, and has all of the powers necessary to carry out its rights and obligations,
including the right, duty, and power to contract for legal services to prosecute any action which it
deems necessary to enforce its powers, rights, and obligations, including bringing the within action.

7. Plaintiff brings this action pursuant to California Civil Code Section 1368.3 which
confers on Plaintiff legal standing to bring suit to recover for: (a) Damage to the common areas; (b)
Damage to a separate interest that the association is abligated to maintain or repair; and © Damage
to a separate interest that arises out of, or is integrally related to, damage to the common area or a
separate interest that the association is obligated to maintain or repair.

8. Plaintiff, in accordance with the aforesaid By-Laws and Declaration of Covenants,
Conditions and Restrictions, and California Civil Code Section 1368.3, is authorized to bring this
action and recover for the various claims for damages and defects that are further described in this
Complaint.

9. Reserved.

10. At the time the Complaint was filed, Plaintiff was ignorant of the true names and
capacities of Does One (1) through Two Hundred (200), inclusive, and therefore sues these
Defendants by such fictitious names. Plaintiff will amend this Complaint to allege their true names

and capacities when same are ascertained. Plaintiff is informed and believes and thereon alleges that

3
SECOND AMENDED COMPLAINTeach of the fictitiously named Defendants is liable or responsible in some manner to Plaintiff on the
facts hereinafter alleged and that Plaintiff's damages as herein alleged were proximately caused by
‘such Defendants.

11. Plaintiff is informed and believes and on that basis alleges that at all times herein
mentioned each of the Defendants, including the Defendants sued herein as Does One (1) through
Two Hundred (200), inclusive, was acting as the agent, servant, partner, principal, joint venturer,
alter ego and/or employee of each of its Co-Defendants, and in doing the things hereafter mentioned
was acting within the scope of its authority as such agent, servant, partner, principal, joint venturer,
alter ego and/or employee, with the full knowledge, permission, and consent, cither express or
implied, of each of the remaining Defendants.

12. Plaintiff is informed and believes and on that basis alleges that at all times mentioned
herein Defendants, and each of them, were individuals, business entities, organizations, corporations
and/or associations who participated in the development, design, or construction of the subject real
property and structures situated thereon.

13. Plaintiff is informed and believes and on that basis alleges that, commencing at a
precise date which is unknown to Plaintiff, Defendants, and each of them, participated in the manner
set forth herein in the development, design, financing, sale construction and/or insuring of the
Subject Property, commonly known as the BEACON RESIDENTIAL COMMUNITY development.
The Subject Property is now owned, operated and controlled by the Plaintiff Association and its
constituent members, as the homeowners residing therein.

14. Plaintiff is informed and believes and thereon alleges that:

(a) Plaintiff is informed and believes and thereon alleges that Defendant CATELLUS
THIRD AND KING, LLC is, and was at all relevant times, a Delaware limited liability company
doing business in San Francisco, California.

(b) Plaintiff is informed and believes and thereon alleges that Defendant CATELLUS
DEVELOPMENT CORPORATION is, and was at all relevant times, a Delaware corporation doing
business in San Francisco, California.

(c) Plaintiff is informed and believes and thereon alleges that Defendant CATELLUS

4
SECOND AMENDED COMPLAINTCOMMERCIAL DEVELOPMENT CORPORATION is, and was at all relevant times, a Delaware
corporation doing business in San Francisco, California.

(d) Plaintiff is informed and believes and thereon alleges that Defendant CATELLUS
OPERATING LIMITED PARTNERSHIP is, and was at all relevant times, a partnership doing
business in San Francisco, California.

(e) Plaintiff is informed and believes and thereon alleges that Defendant CATELLUS
URBAN DEVELOPMENT CORPORATION is, and was at all relevant times, a Delaware .
corporation doing business in San Francisco, California.

(f) Plaintiff is informed and believes and thereon alleges that Defendant THIRD AND
KING INVESTORS LLC is, and was at all relevant times, a limited liability company doing business
in San Francisco, California.

(g) Plaintiff is informed and believes and thereon alleges that Defendant PROLOGIS is,
and was at all relevant times, a Delaware corporation doing business in San Francisco, California.
Plaintiff is informed and believes and thereon alleges that during or about 2005, CATELLUS
THIRD AND KING, LLC, CATELLUS DEVELOPMENT CORPORATION, CATELLUS
COMMERCIAL DEVELOPMENT CORP., CATELLUS OPERATING LIMITED PARTNERSHIP
and CATELLUS URBAN DEVELOPMENT CORPORATION merged with PROLOGIS. Plaintiff
is further informed and believes and thereon alleges that PROLOGIS is the successor by merger
entity to CATELLUS THIRD AND KING, LLC, CATELLUS DEVELOPMENT CORPORATION,
CATELLUS COMMERCIAL DEVELOPMENT CORP., CATELLUS OPERATING LIMITED
PARTNERSHIP and CATELLUS URBAN DEVELOPMENT CORPORATION.

(h) Plaintiff is informed and believes and thereon alleges that Defendant MISSION
PLACE LLC is, and was at all relevant times, a Delaware limited liability company doing business
in San Francisco, California.

@ Plaintiff is informed and believes and thereon alleges that Defendant MISSION
PLACE MEZZANINE LLC is, and was at all relevant times, a Delaware limited liability company
doing business in San Francisco, California.

: ) Plaintiff is informed and believes and thereon alleges that Defendant MISSION

5
SECOND AMENDED COMPLAINT28

ANGIUS & TERRY tL
1990'N. Calif Bhd . #950
P.O, Box $073
Walnut Creek. CA 94596
(025) 930.0033,

PLACE MEZZ HOLDINGS LLC is, and was at all relevant times, a Delaware limited liability
company doing business in San Francisco, California. . :

(k) Plaintiff is informed and believes and thereon alleges that Defendant MISSION
PLACE PARTNERS LLC is, and was at all relevant times, a Delaware limited liability company
doing business in San Francisco, California.

(jb Plaintiff is informed and believes and thercon alleges that Defendant CENTURION
REAL ESTATE INVESTORS IV, LLC is, and was at all relevant times, a Delaware limited liability
company doing business in San Francisco, California.

(m) _ Plaintiff is informed and believes and thereon alleges that Defendant CENTURION
REAL ESTATE PARTNERS, LLC is, and was at all relevant times, a Delaware limited liability
company doing business in San Francisco, California.

(n) Plaintiff is informed and believes and thereon alleges that Defendant CENTURION
PARTNERS LLC is, and was at all relevant times, a Delaware limited liability company doing
business in San Francisco, California.

(0) Plaintiff is informed and believes and thereon alleges that Defendant WEBCOR
CONSTRUCTION, INC. is, and was at all relevant times, a California corporation doing business in
San Francisco, California.

(p) Plaintiff is informed and believes and thereon alleges that Defendant WEBCOR
BUILDERS, INC. is, and was at all relevant times, a California corporation doing business in San
Francisco, California.

(q) Plaintiff is informed and believes and thereon alleges that Defendant WEBCOR
CONSTRUCTION, INC. individually and doing business as WEBCOR BUILDERS is, and was at
all relevant times, a California corporation doing business in San Francisco, California.

® Plaintiff is informed and believes and thereon alleges that Defendant WEBCOR

CONSTRUCTION LP individually and doing business as WEBCOR BUILDERS is, and was at all

relevant times, a limited partnership doing business in San Francisco, California.
(s) Plaintiff is informed and believes and thereon alleges that Defendant SKIDMORE
OWINGS & MERRILL LLP is, and was at all relevant times, a New York limited liability. .

SECOND AMENDED COMPLAINT28

Ants & TeR®y LLP
1990 N. Calif Bled #950
P.O, Box 8079
Woinut Creek. CA 94596
4825) 939-9933,

partnership doing business in San Francisco, California.

(t) Plaintiff is informed and believes and thereon alleges that Defendant HKS, INC. is,
and was at all relevant times, a Texas corporation doing business in San Francisco, California.

(y) Plaintiff is informed and believes and thereon alleges that Defendant HKS
ARCHITECTS, INC. is, and was at all relevant times, a Texas corporation doing business in San

Francisco, California.

(v) Plaintiff is informed and believes and thereon alleges that Defendant HKS, INC.
individually and doing business as HKS ARCHITECTS, INC. is, and was at all relevant times, a
Texas corporation doing business in San Francisco, California.

15. Plaintiff is informed and believes and thereon alleges that CATELLUS THIRD AND
KING LLC, THIRD AND KING INVESTORS LLC, CATELLUS OPERATING LIMITED
PARTNERSHIP, CATELLUS DEVELOPMENT CORPORATION, CATELLUS COMMERCIAL
DEVELOPMENT CORPORATION, CATELLUS URBAN DEVELOPMENT CORPORATION,
PROLOGIS, MISSION PLACE LLC, MISSION PLACE MEZZANINE LLC, MISSION PLACE
MEZZ HOLDINGS LLC, MISSION PLACE PARTNERS LLC, CENTURION REAL ESTATE
INVESTORS IV LLC, CENTURION REAL ESTATE PARTNERS LLC, WEBCOR
CONSTRUCTION, INC., WEBCOR BUILDERS, INC., WEBCOR CONSTRUCTION LP, HKS,
INC. and HKS§ ARCHITECTS, INC., and certain of the other Defendants designated herein are
corporations, limited liability companies/partnerships and/or limited partnerships (hereafter the
“BUSINESS ENTITIES”). Plaintiff is further informed and thereon alleges that the BUSINESS
ENTITIES and Defendants Does | through 30 and 175 through 200 were and are the owners ofa
majority of the shares of stock in, or partners/members of CATELLUS THIRD AND KING LLC,
THIRD AND KING INVESTORS LLC, CATELLUS OPERATING LIMITED PARTNERSHIP,
CATELLUS DEVELOPMENT CORPORATION, CATELLUS COMMERCIAL DEVELOPMENT
CORPORATION, CATELLUS URBAN DEVELOPMENT CORPORATION, PROLOGIS,
MISSION PLACE LLC, MISSION PLACE MEZZANINE LLC, MISSION PLACE. MEZZ
HOLDINGS LLC, MISSION PLACE PARTNERS LLC, CENTURION REAL ESTATE
INVESTORS IV LLC, CENTURION REAL ESTATE PARTNERS LLC, WEBCOR

7
SECOND AMENDED COMPLAINT28

ANGRIS & TERRY 11
1900 N, Calf Bhd £950
P.O, Boe 8077
‘Walnut Creek, CA 94596
(025) 939-9933,

CONSTRUCTION, INC., WEBCOR BUILDERS, INC., WEBCOR CONSTRUCTION LP, HKS,
INC., and HKS ARCHITECTS, INC.

16. Plaintiff is further informed and believes and thereon alleges that there exists, and at
all times herein there existed, a unity of interest and ownership between Defendants Does 1 through
30 and 175 through 200 and CATELLUS THIRD AND KING LLC, THIRD AND KING
INVESTORS LLC, CATELLUS OPERATING LIMITED PARTNERSHIP, CATELLUS
DEVELOPMENT CORPORATION, CATELLUS COMMERCIAL DEVELOPMENT
CORPORATION, CATELLUS URBAN DEVELOPMENT CORPORATION, PROLOGIS,
MISSION PLACE LLC, MISSION PLACE MEZZANINE LLC, MISSION PLACE MEZZ
HOLDINGS LLC, MISSION PLACE PARTNERS LLC, CENTURION REAL ESTATE
INVESTORS IV LLC, CENTURION REAL ESTATE PARTNERS LLC, WEBCOR
CONSTRUCTION, INC., WEBCOR BUILDERS, INC., WEBCOR CONSTRUCTION LP, HKS,
INC. and HKS ARCHITECTS, INC., the BUSINESS ENTITIES, and Defendants Does 1 through 30
and 175 through 200 , such that any individuality and separateness between such Defendants has
ceased, and that they are the alter egos of each other and Defendants sued and identified herein as
Defendants Does 1 through 30 and 175 through 200.

17. Plaintiff is further informed and believes and thereon alleges that CATELLUS
THIRD AND KING LLC, THIRD AND KING INVESTORS LLC, CATELLUS OPERATING
LIMITED PARTNERSHIP, CATELLUS DEVELOPMENT CORPORATION, CATELLUS
COMMERCIAL DEVELOPMENT CORPORATION, CATELLUS URBAN DEVELOPMENT
CORPORATION, PROLOGIS, MISSION PLACE LLC, MISSION PLACE MEZZANINE LLC,
MISSION PLACE MEZZ HOLDINGS LLC, MISSION PLACE PARTNERS LLC, CENTURION
REAL ESTATE INVESTORS IV LLC, CENTURION REAL ESTATE PARTNERS LLC,
WEBCOR CONSTRUCTION, INC., WEBCOR BUILDERS, INC., WEBCOR CONSTRUCTION
LP, HKS, INC. and HKS ARCHITECTS, INC., the BUSINESS ENTITIES are, and Defendants
Does 1 through 30 and 175 through 200, at all times mentioned herein were, mere shells,
instrumentalities and conduits of each other through which they carried on their business in the alter

ego entities as they had conducted it previous to formation of the said entities, exercising control and

8
SECOND AMENDED COMPLAINT28

‘ANcHus & TERRY LLP
1990.N, Calif Bhd. #950
P.O, Box $077
‘Walmm Creek, CA 94596
(025) 939-8933,

dominance of such businesses to such an extent that any individuality or separateness do not, and at
all times therein mentioned did not, exist. Plaintiff further alleges that they commingled funds with
other assets and/or failed to segregate funds of alter ego entities; that there is identical equitable
ownership in multiple alter ego entities; that they were inadequately and/or under capitalized, or
lacked any assels; that they were used as a mere shell, instrumentality or conduit for a single venture
or the business of an individual or another entity; that the alter ego entities were used to procure
labor, services or merchandise for another individual or entity; and that they engaged in the diversion
of assets and liabilities between entities so as to concentrate the assets in one and the liabilities in
another.

18. Adherence to the fiction of the separate existence of CATELLUS THIRD AND
KING LLC, THIRD AND KING INVESTORS LLC, CATELLUS OPERATING LIMITED
PARTNERSHIP, CATELLUS DEVELOPMENT CORPORATION, CATELLUS COMMERCIAL
DEVELOPMENT CORPORATION, CATELLUS URBAN DEVELOPMENT CORPORATION,
PROLOGIS, MISSION PLACE LLC, MISSION PLACE MEZZANINE LLC, MISSION PLACE
MEZZ HOLDINGS LLC, MISSION PLACE PARTNERS LLC, CENTURION REAL ESTATE
INVESTORS IV LLC, CENTURION REAL ESTATE PARTNERS LLC, WEBCOR
CONSTRUCTION, INC., WEBCOR BUILDERS, INC., WEBCOR CONSTRUCTION LP, HKS,
INC. and HKS ARCHITECTS, INC., and the BUSINESS ENTITIES and Defendants Does 1
through 30 and 175 through 200 would permit an abuse of trust and/or corporate privilege and/or
forms of law and would sanction a fraud and promote injustice and inequality in that Plaintiff is
informed and believes and thereon alleges that CATELLUS THIRD AND KING LLC, THIRD AND
KING INVESTORS LLC, CATELLUS OPERATING LIMITED PARTNERSHIP, CATELLUS
DEVELOPMENT CORPORATION, CATELLUS COMMERCIAL DEVELOPMENT
CORPORATION, CATELLUS URBAN DEVELOPMENT CORPORATION, PROLOGIS,
MISSION PLACE LLC, MISSION PLACE MEZZANINE LLC, MISSION PLACE MEZZ
HOLDINGS LLC, MISSION PLACE PARTNERS LLC, CENTURION REAL ESTATE
INVESTORS IV LLC, CENTURION REAL ESTATE PARTNERS LLC, WEBCOR
CONSTRUCTION, INC., WEBCOR BUILDERS, INC., WEBCOR CONSTRUCTION LP, HKS,

9

SECOND AMENDED COMPLAINTeo m7 nN Dw eB YN

o

11

28

ANGtUS & TERRY LLP
1990 N, Calif Bled. 4950
P.O. Box 8077
Walnut Creek, CA 945%
1925} 939-9933,

INC. and HKS ARCHITECTS, INC., the BUSINESS ENTITIES, and Defendants Does 1 through
30 and 175 through 200 are inadequately capitalized and incapable of responding in damages to
Plaintiff.

19. | PROLOGIS, CATELLUS THIRD AND KING, LLC, CATELLUS DEVELOPMENT:
CORPORATION, CATELLUS COMMERCIAL DEVELOPMENT CORP., CATELLUS
OPERATING LIMITED PARTNERSHIP and CATELLUS URBAN DEVELOPMENT
CORPORATION shall hereafter collectively be referred to as “PROLOGIS/CATELLUS.”

20. MISSION PLACE LLC, MISSION PLACE MEZZANINE LLC, MISSION PLACE
MEZZ HOLDINGS LLC, MISSION PLACE PARTNERS LLC, CENTURION REAL ESTATE
INVESTORS IV, LLC, CENTURION REAL ESTATE PARTNERS, LLC and CENTURION
PARTNERS LLC shail hereafter collectively be referred to as “MISSION PLACE LLC.”

21. | WEBCOR CONSTRUCTION, INC., WEBCOR BUILDERS, INC., WEBCOR
CONSTRUCTION, INC. individually and doing business as WEBCOR BUILDERS and WEBCOR
CONSTRUCTION LP individually and doing business as WEBCOR BUILDERS shall hereafter
collectively be referred to as “WEBCOR.”

22. SKIDMORE OWINGS & MERRILL LLP, HKS, INC., HKS ARCHITECTS, INC.
and HKS INC. individually and doing business as HKS ARCHITECTS, INC. shall hereafter
collectively be referred to as “SOM/HKS.”

23. Plaintiff is informed and believes and thereon alleges that Defendants
“PROLOGIS/CATELLUS”, “MISSION PLACE LLC”, THIRD AND KING INVESTORS LLC and
Does 1 through 30, as developer, its general partners, owncr, designer, builder, contractor, and seller,
commenced to develop the subject real property by causing the construction thereon of the herein
described improvements. In such capacity, said Defendants, and each of them, improved, promoted,
advertised and sold the dwelling units to Plaintiff's members, as more fully set forth in: (a) The
Public Report which was issued by the California Department of Real Estate with respect to the
Subject Property (hereinafter referred to as the "Public Report”) and delivered to members of the
Plaintiff Association and; (b) the documents submitted by said Defendants to the Califomia

Department of Real Estate and upon which the Public Report was issued. At all times therein

10
SECOND AMENDED COMPLAINT28

ANGIUS & TERRY LLP
1999 N. Calif Biva #950.

(928) 939.0933

mentioned said Defendants, and each of them, acted as the developers, its general partners, owners,
designers, builders, contractors and sellers of the Subject Property. It was the intent of the foregoing
Defendants, and each of them, that said property and structures situated thereon were to be used for
residential purposes.

24. Plaintiff is informed and believes and thereon alleges that Defendants
“PROLOGIS/CATELLUS”, “MISSION PLACE LLC”, THIRD AND KING INVESTORS LLC,
“WEBCOR”, “SOM/HKS” and Does | through 65, and Does 150 through 200, inclusive, entered
into written contracts and subcontracts with each other and other Defendants herein for the purpose
of acting as sellers, developers, contractors, designers, subcontractors, material men, suppliers and/or
builders with respect to the construction of the subject improvements. Plaintiff is informed and
believes and thereon alleges that at the time that such contracts and subcontracts were entered,
Defendants “PROLOGIS/CATELLUS”, “MISSION PLACE LLC”, “THIRD AND KING
INVESTORS LLC”, “WEBCOR”, “SOM/HKS” and Does | through 65 and Does 150 through 200
inclusive knew (a) that “PROI OGIS/CATELLUS” and/or “MISSION PLACE LLC” and/or THIRD
AND KING INVESTORS LLC and/or Does 1 through 30 would ultimately be the sole sharcholders,
officers and directors of Plaintiff condominium association, (b) that title to the Subject Property
would ultimately be transferred to the Plaintiff condominium association; © that such Plaintiff
condominium association would ultimately be responsible for the maintenance and repair of the
various building components that were being developed, designed, constructed and/or supplied
pursuant to the contracts and subcontracts. Ptaintiff is further informed and believes and thercon
alleges that each of the contracts and subcontracts expressly (a) identified the Subject Property; and
(b) provided that the work to be performed under such contracts and subcontracts was to be in
accordance with the plans, specifications and construction drawings prepared in connection with the
Subject Property and all building codes related thereto. These contracts and subcontracts were,
therefore, made for the express and immediate benefit of Plaintiff. Plaintiff was a third party
beneficiary of the foregoing contracts under the principles set forth in Gilbert Fin. Corp. v. Steelwork
Contracting Co. (1978) 82 C.A.3d 65, among other cases. Plaintiff is informed and believes and

thereon alleges that said Defendants, and each of them, did in fact, act as sellers, developers, —

ul

SECOND AMENDED COMPLAINTba wih

ANGUS & TERRY LLP
1990 N Cal’ Bid. #950

P
Walnon
0.

©, Box £077
9

Creek, CA
125) 939-9933

contractors, designers, subcontractors, material men, suppliers and/or builders with respect to
construction of the subject improvements.

25. Inthe foregoing capacities, and as the principals, developers, subdividers and
contractors, Defendants made and executed certain surcty obligations in writing pursuant to Sections
2790, 2791, 2792 et seq. of Title 10, Chapter 6, Article 12 of the California Code of Regulations
which, inter alia, secured completion of the common areas of the subject project and payment of the
developer assessments thereunder. Conformed copies of said written surety obligations were filed
with the California Department of Real Estate, which obligations provided coverage in a presently
unascertained sum or sums, being the construction costs for certain of said common area properties,
and a partial amount of the developer's assessment obligations, all for the benefit of the Plaintiff
Association.

26. Plaintiff is informed and believes and thereon alleges that Defendants
“PROLOGIS/CATELLUS”, “MISSION PLACE LLC”, THIRD AND KING INVESTORS LLC,
“WEBCOR” and Does | through 30, inclusive, are and at all times therein mentioned were business
entities, individuals, corporations and organizations associated together by way of some agreement,
joint venture, partnership, or decision between them to participate for the purpose of acquiring the
Subject Property and/or constructing the subject improvements thereon, and participating in some
manner or fashion between them as developers, owners, merchants, lenders, insurers, suppliers,
escrow officers, title companies, contractors, subcontractors, builders, sellers, and/or real estate
brokers respecting the subject dwelling units and subject improvements; that said Defendants
intended to and did act as owners, merchants lenders, insurers, suppliers, contractors, subcontractors,
developers, builders, and sellers and/or real estate brokers respecting the sale of the Subject Property
and subject dwelling units to members of the public. Plaintiff is unaware of the precise and exact
nature of the relationship among these Defendants and the part each played in the acquisition,
planning, development, financing, construction, and sale of the Subject Property and the
improvements to the Subject Property. When the true and precise nature of their participation and
relationship becomes known this pleading will be amended to reflect the same, or it will be

established at the time of trial according to proof.

12

SECOND AMENDED COMPLAINToOo 1D

1990 8, Calif Blvd. #950

‘Walaut Creek. CA 94596
(925) 999-9033

27. Plaintiff is informed and believes and thereon alleges that each of the following
Defendants participated in the development of the Subject Property and the construction of the
improvements upon the Subject Property as follows:

a. Defendants “PROLOGIS/CATELLUS”, “MISSION PLACE-LLC”, THIRD
AND KING INVESTORS LLC and Does 1 through 30, inclusive, were the original developers
and/or its general partners and/or joint venturers respecting the subject project, obtained the services
of and entered into agreements with certain of the other Defendants for the purpose of constructing
the improvements on the Subject Property. It was the intent of such Defendants, and each of them,
that the said property, common areas and the improvements on the said property be sold to and used
by members of the public for residential purposes;

b. The original developers commenced to develop the subject project by causing
the construction of the herein above described improvements and residential dwelling units on the
Subject Property. Thereafter, and by written contracts of purchase and sale, said residential dwelling
units, real property, common areas and improvements on the Subject Property were sold to one
another and ultimately to members of the Plaintiff Association.

c. Defendants “PROLOGIS/CATELLUS”, “MISSION PLACE LLC”, THIRD
AND KING INVESTORS LLC, “WEBCOR” and Does 1 through 50 and Does 150 through 200,
inclusive, participated as the development entity, its joint venturers, general partners, builders,
contractors, suppliers, insurers, material men and subcontractors with respect to the development of
the Subject Property and construction of the subject residential dwelling units, common areas and
other improvements thereon. In performing such services, said Defendants, and each of them did so
with the knowledge and understanding that said property, improvements to said property and
common areas would be sold to the general public for use as residential dwelling units;

d. Defendants “PROLOGIS/CATELLUS’, “MISSION PLACE LLC”, THIRD
AND KING INVESTORS LLC, “WEBCOR”, “SOM/HKS” and Does 51 through 65 and 150
through 200, inclusive, provided architectural and engineering services with respect to the design of
the Subject Property, the subject residential dwelling units, common areas and other improvements

| thereon. Sueh design services included, but were not limited to, architecture, landscape architecture,

13

SECOND AMENDED COMPLAINTcivil engineering, mechanical engineering, structural engineering, soils engineering and electrical

2) engineering, .
3 e. Defendants “PROLOGIS/CATELLUS”, “MISSION PLACE LLC”, THIRD
4) AND KING INVESTORS LLC and Does | through 30 sold the subject residential dwelling units, -
5 || Subject Property, improvements to said property and common areas and respective interests in the
6 |) Plaintiff Association to members of the public, including members of the Plaintiff Association.
7 FIRST CAUSE OF ACTION
8 (Civil Code Title 7 - Violation of Building Standards for Original Construction
9 Civil Code Sections 895 et seq.)
10 (ALL DEFENDANTS)
i1 28. Plaintiff incorporates herein by this reference paragraphs 1} through 27 above sct forth.
12 29. Defendants “PROLOGIS/CATELLUS”, “MISSION PLACE LLC”, THIRD AND

13 | KING INVESTORS LLC and Does | through 30 are each a “Builder” of the BEACON
14 |] RESIDENTIAL COMMUNITY development pursuant to California Civil Code Section 911.
15 30. Defendants “WEBCOR”, “SOM/HKS” and Does 31 through 65 and Does 150
16 | through 200 are, pursuant to California Civil Code Section 936, “general contractors, subcontractors,
17|| material suppliers, individual product manufacturers [and/or] design professionals [who] caused, in
18) whole or in part, a violation of a standard as the result of a negligent act or omission or a breach of
19} contract.”
20 31. Plaintiff is informed and believes and thereon alleges that during or after 2004,
21 | Defendants “PROLOGIS/CATELLUS”, “MISSION PLACE LLC”, THIRD AND KING
22) INVESTORS LLC, and Does | through 30 entercd into purchase and sale agreements with certain or
23 | alt of the original members of the Association in connection with the purchase and sale of the .
24) condominium units which comprise, in part, the BEACON RESIDENTIAL COMMUNITY
25 || development.
. 26 32. On or before September 8, 2006, Plaintiff caused to be sent to
. 27} “PROLOGIS/CATELLUS”, “MISSION PLACE LLC”, THIRD AND KING INVESTORS LLC and
28 || “WEBCOR?” a written notice of claim pursuant to California Civil Code Sections 895 et seq. and :

Anais & TERRY LLP
1990 8. Calif Bhd, 2950, 14
P.O. Box $077

won 58903 SECOND AMENDED COMPLAINT1990 N. Coif Bhd. #950

4925) 939-993

1375. Plaintiff's written notice of claim was supplemented by the following notices of claims that
were sent to the Defendants: (a) Letter from Plaintiff to Daniel E. Berman dated September 20, 2006,
atrue and correct copy of which is attached to the Complaint for Damages as Exhibit “A” and
incorporated herein by this reference; (b) Letter from Plaintiff to Peter J. Laufenberg dated
September 20, 2006, a true and correct copy of which is attached to the Complaint for Damages as
Exhibit “B” and incorporated herein by this reference; (c) Letter from Plaintiff to Daniel E. Berman
dated September 27, 2006, a true and correct copy of which is attached to the Complaint for
Damages as Exhibit “C” and incorporated herein by this reference; (d) Letter from Plaintiff to Peter
J. Laufenberg dated September 27, 2006, a true and correct copy of which is attached to the
Complaint for Damages as Exhibit “D” and incorporated herein by this reference, and, (e) Letter
from Robert M. Osier, Esq. to counsel for the Defendants dated November 10, 2006, a true and
correct copy of which is attached to the Complaint for Damages as Exhibit “E” and incorporated
hercin by this reference. As a result of the dispatch of such written notices of claims, all statutes of
limitation were tolled on or before September 8, 2006.

33. On November 3, 2006, Plaintiff caused to be sent to “SOM/HKS” a written notice of
claim pursuant to California Civil Code Section 895 ef seq. A true and correct copy of such written
notice of claim is attached to the Complaint for Damages as Exhibit “F” and incorporated herein by
this reference.

34. On or about February 4, 2008, Plaintiff and Defendants “PROLOGIS/CATELLUS”,
“MISSION PLACE LLC”, THIRD AND KING INVESTORS LLC and “WEBCOR” signed a
document entitled “Tolling Agreement Regarding The Beacon Residential Owners Association’s SB
800 Claim (‘Tolling Agreement’).” By the terms of such Tolling Agreement “all periods of
limitation set forth in CC 895, et seq. for the investigation, inspections, testing and offers of repair of
the alleged SB 800 Claim shall be tolled and suspended as of September 20, 2006, the date the
Association first submitted its SB 800 claim. The tolling and suspension of the investigation,
inspection, testing and repair period shall continue until such time as this {Tolling Agreement] is
terminated ... or September 20, 2008, whichever occurs first ...”

35. Defendants “PROLOGIS/CATELLUS”, “MISSION PLACE LLC”, THIRD AND

15
SECOND AMENDED COMPLAINT28

ANGiUS & TERRY LLP
190. Calf BNA #950,
P.O. Box 8077
Walnut Creek, CA 98586
(925) 939-9933,

KING INVESTORS LLC, “WEBCOR”, and “SOM/HKS” have failed to strictly comply with the
provisions of Civil Code Section 895 et seq. Plaintiff now brings this action as permitted by Civil
Code Section 920.

36. Pursuant to California Civil Code Sections 895 et seq., as “builders” of the BEACON
RESIDENTIAL COMMUNITY development, Defendants “PROLOGIS/CATELLUS”, “MISSION
PLACE LLC”, THIRD AND KING INVESTORS LLC and Does | through 30 are liable to Plaintiff
for violations of certain of the building standards set forth in California Civil Code Sections 896 and
900. These violations arise out of, pertain to, or are related to the original construction of the
BEACON RESIDENTIAL COMMUNITY development.

37, Pursuant to California Civil Code Sections 895 ef seg., as general contractors,
subcontractors, material suppliers, individual product manufacturers, and design professionals who
caused, in whole or in part, a violation of a particular standard set forth in California Civil Code
Sections 896 and 900 as the result of an act or omission or breach of contract, Defendants
“WEBCOR”, “SOM/HKS” and Does 3! through 65 and Does 150 through 200 are liable to Plaintiff
for violations of certain of the building standards set forth in California Civil Code Sections 896 and
900. These violations arise out of, pertain to, or are related to the original construction of the
BEACON RESIDENTIAL COMMUNITY development.

38. The acts and omissions of Defendants “PROLOGIS/CATELLUS”, “MISSION
PLACE LLC”, THIRD AND KING INVESTORS LLC, “WEBCOR”, “SOM/HKS” and Does 1
through 200 have resulted in violation of certain of the functionality standards set forth in California
Civil Code Section 896 and certain of the “fit and finish” warranties set forth in California Civil
Code Section 900. These violations include the following:

A. The violations identified in Exhibits “A”, “B”, “C”, “D”, “E” and “E” to the Complaint for

Damages and are incorporated herein by this reference.

B. There is excessive heat gain through the windows in the condominium units rendering such
units uninhabitable during certain periods.

1. Excessive heat gain window problems have been compounded by virtue of

Defendants’ installation of film on the interior glazing surfaces causing such interior

16

SECOND AMENDED COMPLAINT

|1 glazing surfaces to reach excessively high temperatures.
2 2. There has been failure and degradation of window seals by virtue of excessive heat
3 gain on interior glazing surfaces.
4 3.- There has been failure and cracking of window glazing by virtue of excessive heat
5 gain on interior glazing surfaces.
6 4. The manufacturer’s window warranty has been voided by virtue of the application of
7 the film to interior glazing surfaces.
8 5. Defective design, materials, construction and installation of windows and window
9 systems have contributed to the excessive heat gain problems.
10 6. Defective design, materials, construction and installation of window glazing have
11 contributed to the excessive heat gain problems.
12 7. Defective design, materials, construction and installation of ventilation systems have
13 contributed to the excessive heat gain problems.
14 8. Defective design, materials, construction and installation of mechanical systems have
15 contributed to the excessive heat gain problems.
16 9. Defective design, materials, construction and installation of condominium heat
17 mitigation and insulation systems have contributed to the excessive heat gain
18 problems.
19q C. ‘The ventilation in the condominium units and common areas is deficient.
20 L There are not enough “Z” ducts in the condominium units in order to satisfy minium
21 building code requirements.
22 2. The “Z” ducts were designed, fabricated and installed in a defective manner as they
23 routinely become obstructed and inoperative.
24 3. The lack of ventilation can lead to health problems due to a lack of sufficient fresh
25 air.
26 4. Defective design, materials, construction and installation of ventilation systems have
27 contributed to the excessive heat gain problems and lack of sufficient fresh air.
28 5. Defective design, materials, construction and installation of “Z” duct ventilation
eee SECOND AMENDED COMPLAINT28

ANGIUS & TERRY LLP
1999 Ne, Calif Bled, #950,
P.0, Box 8037
Walnut Ceock, CA 94596
(925) 939-9933

systems have contributed to the excessive heat gain problems and lack of sufficient
fresh air. ©

Defective design, materials, construction and installation of mechanical systems have
contributed to the excessive heat gain problems and lack of sufficient fresh air.
Defective design, materials, construction and installation of “Z” duct ventilation and,
among other things, its integration with the stucco systems have contributed to the

excessive heat gain problems and lack of sufficient fresh air.

The pool and spa boilers are defective.

1.
2.
3.

The pool and spa boilers have failed.

The pool boiler is undersized.

The pool boiler does not heat the pool so as to keep it al an acceptable temperature.
The pool and spa boilers have failed prematurely duc to, among other things,
improper combustion air within the pool and spa equipment rooms.

The pool boiler has failed prematurely due to, among other things, excessive run
times as a result of the boiler being undersized.

Defective design, materials, construction and installation of pool and spa boilers.
Defective design, materials, construction and installation of ventilation systems in the
pool and spa boiler rooms.

Defective design, materials, construction and installation of mechanical systems in the

pool and spa boiler rooms.

There is inadequate ventilation in the pool chemical room thereby resulting in a chemical

build up in air supply and incident safety hazard.

1.

Defective design, materials, construction and installation of ventilation systems in
pool chemical room.
Defective design, materials, construction and installation of mechanical systems in

pool chemical room.

There is excessive heat build up in electrical rooms thereby causing damage and premature

failure to the electrical components housed in the electrical rooms.

18

SECOND AMENDED COMPLAINT28

Annus & TERRY UP
19908. Caf Blea, 4950
P.O, Box 8077
‘Wolnat Creek. CA 98596
1925) 939-9933,

1, Defective design, materials, construction and installation of ventilation systems in
electrical rooms. :

2. Defective design, materials, construction and installation of mechanical systems in
electrical rooms.

There are leaks in the dryer exhaust system duct runs for 28 condominium units thereby

causing water damage to various building components.

lL. Defective design, materials, construction and installation of dryer exhaust systems.

2. Defective design, materials, construction and installation of dryer exhaust system duct
runs.

3. Defective design, materials, construction and installation of dryer exhaust systems
waterproofing.

There is cxcessive odor and cigarette smoke transmission between condominium units

thereby contributing to a health hazard.

lL. Defective design, materials, construction and installation of odor transmission
mitigation systems and odor insulation systems.

There is excessive sound transmission between condominium units, from the exterior of the

buildings into the condominium units, from common areas into the condominium units, from

the corridors into the condominium units and from the stairwells into the condominium units.

1. Defective design, materials, construction and installation of sound transmission
mitigation systems and sound insulation systems.

There are leaks in the roofs and roof systems causing damage to various building

components.

1. Defective design, materials, construction and installation of buildings’ rooting

systems, buildings’ roofing waterproofing systems, gym roofing systems, gym roofing.

waterproofing systems, club room roofing systems, club room roofing waterproofing
systems, roof flashing and waterproofing systems, awnings, base flashing and
waterproofing systems, roof jack flashing and waterproofing systems, electrical

conduit flashing and waterproofing systems, roof penetration flashing and

19

SECOND AMENDED COMPLAINTANGUS TERRY

28

ip

1990 N. Calif Blvd. #950

(825) 939.9933

waterproofing systems and counter hatch flashing and waterproofing systems.

2. Deficiencies in the standing seam metal roofs at the podium level Exercise and
Meeting rooms have allowed water intrusion and damaged finishes.

There are leaks emanating from the pool and spa equipment rooms thereby causing, among

other things, damage to various building components and damage to automobiles parked in

the parking facility below.

1. Defective design, materials, construction and installation of the poo! and spa
equipment room waterproofing systems.

There are leaks emanating from the canopy structures over the King Street entrances to the

250 and 260 buildings causing damage to various building components.

1. Defective design, materials, construction and installation of the canopy structure
waterproofing systems, canopy flashing and waterproofing systems and canopy
sealant and waterproofing systems.

‘Yhere is water infiltration into the planter lights and electrical components installed in the

podium and motor court planter boxes thereby causing damage to various building

components.

1. Defective design, materials, construction and installation of planter box waterproofing
systems, planter light waterproofing systems, junction box waterproofing systems,
emergency exit sign waterproofing systems and electrical component waterproofing
systems.

There are leaks emanating from the podium, the podium level planter boxes, planter caps, the

points where the planter boxes are integrated with the exterior building wall assemblies and,

among other locations, the exterior wall assemblies causing water and mold damage to
various building components and condominium units. Where planter boxes abut building
walls, water intrusion from planter box below-grade waterproof membrane failures has
damaged interior finishes. Planter box waterproofing is improperly terminated below the
precast concrete planter caps and the waterproofing under the caps is incomplete. Vertical

expansion joints in the stucco cladding over masonry planter box walls are misaligned with

20

SECOND AMENDED COMPLAINT28

ANGIUS & TERRY LLP
1990. Calf. Bae. #950

(925) 939-9933

the masonry expansion joints. Planter box drains do not function as intended. Planter box

drain risers are not connected to and are dislocated from the drains. The patio side of the

masonry planter box walls along the King St. elevation of both buildings 250 and 260 are not
properly reinforced and are deflecting. Stucco clad metal-framed podium parapet walls are
improperly constructed as the waterproofing under the precast concrete caps is incomplete
and in some locations, gyp sheathing is missing.

i Defective design, materials, construction and installation of planter box waterproofing
systems, planter light waterproofing systems, junction box waterproofing systems,
electrical component waterproofing systems, podium waterproofing systems, stucco
systems, stucco waterproofing systems, exterior wall systems, exterior wall
waterproofing systems, planter cap systems, planter cap waterproofing systems and
podium flashing and waterproofing systems.

The drainage system in the podium and motor court planter boxes is deficient and allows

water to “stand” in such planter boxes thereby causing water and mold damage to various

building components.

1. Defective design, materials, construction and installation of drainage systems in the
podium and motor court planter boxes.

The drainage systems at the sidewalks and the motor court level are deficient and allow water

to “stand” on the sidewalks and motor court level. :

1. Defective design, materials, construction and installation of drainage systems at the
sidewalks and motor court level.

The windows Icak thereby causing water damage to various building components.

lL. Defective design, materials, construction and installation of windows, window
systems, window flashing systems, window sealant systems, stucco systems, stucco
assembly systems, curtain walls, curtain wall systems and stucco accessory systems.

2. The terminations of horizontal stucco expansion joints are improperly sealed with
caulking where the joints abut transitions at corners, window frames and other

cladding materials.

21

SECOND AMENDED COMPLAINT

eewan WU WN

28

ANGiUS & TexRy LP
1990 N. Calif, Bhd. #959
P.O. Box 807?
Walnut Creek, 94596
1925) 939-9933

The foam building components installed above and around the windows have failed and
become loose and dislodged from the window units thereby compromising, among other
things, odor transmission mitigation systems, sound transmission mitigation systems and fire
and smoke transmission mitigation systems.

1. Defective design, materials, construction and installation of windows, window
systems, window flashing systems, window sealant systems and window foam
systems.

There is excessive sound transmission as a result of catwalk vibrations.

lL. Defective design, materials, construction and installation of catwalk sound
transmission mitigation systems.

There is water infiltration through garage walls, ceilings and floors thereby causing damage

to various building components.

1. Defective design, materials, construction and installation of garage wall, ceiling and
floor waterproofing systems.

There are leaks emanating from electrical conduits thereby causing damage to various

building components.

1. Defective design, materials, construction and installation of electrical conduits and
electrical conduit waterproofing systems.

There are leaks emanating from the fire pump room thereby causing damage to various

building components.

1. Defective design, materials, construction and installation of fire pump room
waterproofing systems.

There are structural cracks in at least onc concrete beam located adjacent to a street level.

plaza slab expansion joint.

1. Defective design, materials, construction and installation of concrete beam, garage
waterproofing systems and expansion joint waterproofing systems.

There is extensive cracking of the topping slab at the fourth floor entry to the building at 260

King Street.

22

SECOND AMENDED COMPLAINTkB WN

ANGHUS A TERRY LLP
1960 N, Calf. Bled. #959)
P.O. Bos $07?
Waliat Creek, CA 94596
1925) 939-9938

aa.

cc,

dd.

ec,

1. Defective design, materials, construction and installation of topping slab.

The garage security door system is deficient thereby posing a safety risk to the occupants of

the Subject Property.

1. Defective design, materials, construction and installation of garage security doors and
garage security door systems.

The subject buildings’ entrance door locks and hardware are defective and have failed.

“a, Defective design, materials, construction and installation of entrance door locks and

hardware and door lock systems.

The lighting level in the elevators is deficient.

L. Defective design, materials, construction and installation