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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Aug-24-2012 11:41 am
Case Number: CGC-10-498405
Filing Date: Aug-24-2012 11:41
Filed by: LESLEY FISCELLA
Juke Box: 001 Image: 03738087
ORDER
PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al
001C03738087
Instructions:
Please place this sheet on top of the document to be scanned.2012)
§
Aug 2
Ropers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
oD we IN DY
JOHN G. DOOLING (SBN 154358)
DEVIN C. COURTEAU (SBN 197505)
ROPERS, MAJESKI, KOHN & BENTLEY =
201 Spear Street, Suite 1000
San Francisco, CA 94105-1667
San Francisco County Superior Court
Telephone: (415) 543-4800 " ty Super
Facsimile: (415) 972-6301 AUG 2 4 2012
Email: jdooling@rmkb.com
dcourteau@rmkb.com CLERK OF THE COURT
Attorneys for Defendant and Cross-Complainant BF i Deputy Clerk
CONSTRUCTION TESTING SERVICES, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PERFORMING ARTS, LLC, CASE NO. CGC-10-498405
Plaintiff, {—TBROPOSED] ORDER ON
CONSTRUCTION TESTING SERVICES,
v. INC.’S OBJECTIONS TO PERFORMING
ARTS’ EVIDENCE OFFERED IN
KILLARNEY CONSTRUCTION CO., OPPOSITION TO MOTION FOR
INC., SUMMARY JUDGMENT ON
PLAINTIFF’S COMPLAINT
Defendant.
Date : August 24, 2012
Time : 9:30 a.m.
Dept. : 302
Honorable Harold E. Kahn
AND RELATED CROSS-ACTIONS. Trial Date : February 4, 2013
Pursuant to California Rule of Court 3.1354, the Court issues the following rulings on the
objections of defendant and cross-complainant Construction Testing Services, Inc. (“CTS”) to
evidence offered by plaintiff Performing Arts, LCC (“Plaintiff”) in opposition to CTS’s motion
for summary judgment.
OBJECTIONS TO THE DECLARATION OF JOSEPH P. CASSIDY IN OPPOSITION
TO MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS CARDINAL
CONSULTING, INC. AND CONSTRUCT. STING SERVICES, INC.
OBJECTION NO. 1
“However, at that time in 2008, neither J nor any of my employees at Centrix were aware
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| ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS”
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
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of all of the construction defects at said premises and the physical damage to that property
resulting from defendants’ defective construction work, in particular the defects concealed by
virtue of concrete.” (Declaration of Joseph P. Cassidy in Opposition to Motion for Summary
Judgment of Defendants Cardinal =< Inc. and Construction Testing Services, Inc.
~ =
Grounds for Objection No. 1: To the extent the declarant asserts there was “physical
(“Cassidy Decl.”),(p. 3, Ins. 14
damage to [973 Market Street, San Francisco, California (the “Property”)] resulting from [CTS’]
defective construction work,” this statement lacks foundation and constitutes speculation. (Cal.
Evid. Code §§ 403, 702(a).) The declarant does not set forth facts demonstrating he has the
requisite personal knowledge of the work performed by CTS, and on what specific portions of the
Property CTS worked, in order to assert that CTS’ work was allegedly defective.
Court’s Ruling on Objection No. 1: Sustained:
Fret Not umd at p.3, Dome > F vo
Overruled:
OBJECTION NO. 2
“Tt was only once Performing Arts took possession of the building at the Property that I
became aware of the unknown and latent construction defects in the building, and physical
damage to the building resulting from the construction activities undertaken by defendants.”
(Cassidy Dect; p. 3, Ins. 20-23.) —_)
Grounds for Objection No. 2: To the extent the declarant asserts that there were
“construction defects in the [Property], and physical damage to the [Property] resulting from the
construction activities undertaken by” CTS, this statement lacks foundation and constitutes
speculation. (Cal. Evid. Code §§ 403, 702(a).) The declarant does not set forth facts
demonstrating he has the requisite personal knowledge of the work performed by CTS, and on
what specific portions of the Property CTS worked, in order to assert that CTS’ work was
allegedly defective.
Court’s Ruling on Objection No. 2: Sustained:
Tet net bud at p 3, £ twadg Overruled:
Yo -23.
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)] ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
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OBJECTION NO. 3
“I gained this knowledge through invasive and non-invasive examination and demolition
that exposed the defective workmanship, specifically workmanship that were not done in
compliance with the approved existing plans. For example, throughout the building Performing
Arts' post-acquisition investigation revealed that the concrete work, including the rebar
installation as an integral part of said concrete work, was not done in compliance with the
approved City plans, including faulty layout and insertion of rebar into the pre-existing physical
structure, insufficient diameter rebar, insufficient number of rebar, improper placement of
doweling of rebar, improper thicknesses of concrete, and improper placement of concrete and
removal of pre-existing concrete.” (Cassidy Decl., p. 4, In. 27 to p. 5, In. 7.)
Grounds for Objection No. 3: As demonstrated by Exhibits A — D to the Request for
Judicial Notice and Declaration of Devin C. Courteau in Support of Construction Testing
Services, Inc.’s Objections to Performing Arts’ Evidence Offered in Opposition to Motion for
Summary Judgment on Plaintiff's Complaint (“Courteau Declaration”), there are two sets of
“approved” plans, one set approved by the San Francisco Department of Building Inspection in
2005/2006/2007 and another approved in 2008. The declarant’s statements regarding whether or
not work was performed in compliance “approved existing plans” or “approved City plans”
therefore lack foundation because he fails to identify the applicable approved plans to which he is
referring, and fails to attach any copy of those plans.
Court’s Ruling on Objection No. 3: Sustained: /
NO
Overruled:
OBJECTION NO. 4
“Further, the physical damage has occurred to the pre-existing structure by the improper
installation of new windows throughout the building, which windows were not properly installed
in a workmanlike fashion such that the elements are not kept out. The resulting weather intrusion
into the building has resulted in significant moisture damage to the building, consisting of
corrosion and decay of the pre-existing structure. Similarly, throughout the building, pre-existing
plumbing has been rendered useless and for destroyed by the faulty "replacement" plumbing
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IRDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
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installed while under the direction and control of the defendants in this matter.” (Cassidy Decl.,
p. 5, Ins. 18-25.)
Grounds for Objection No. 4: This statement is irrelevant. (Cal. Evid. Code § 350.) It
is undisputed that CTS’ responsibilities as special inspector did not include inspection of window
installation at the Property. (Separate Statement of Undisputed Material Facts in Support of
Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's Complaint,
Undisputed Material Fact (“UMF”) No. 3.) Accordingly, evidence regarding any damage to the
Property allegedly caused by improper window installation is irrelevant to Plaintiff's claims
against CTS. “No evidence is admissible except relevant evidence. (Cal. Evid. Code § 350.)
Court’s Ruling on Objection No. 4: . Sustained:
Overruled: __\\ /
OBJECTION NO. 5
“Also, concrete was poured into pre-existing piping in the building by the negligent
services of the defendants responsible for concrete work, Killarney Construction Co., Inc.,
Cullinane Construction, MidMarket Development Co., Inc., and Construction Testing Services
resulting in further physical damage to the existing plumbing.” (Cassidy Deecl., p. 5, In. 25 to p.
6, In. 1.)
Grounds for Objection No. 5: This statement lacks foundation and constitutes
speculation. (Cal. Evid. Code §§ 403, 702(a).) The declarant does not set forth facts
demonstrating he has the requisite personal knowledge of the work performed by CTS, and on
what specific portions of the Property CTS worked, in order to assert that CTS’ is liable for
concrete that was allegedly poured into pre-existing piping in the Property.
Court’s Ruling on Objection No. 5: Sustained:
Overruled: v
OBJECTION NO. 6
“Construction Testing Services was the consultant hired to inspect and certify completion
of Cullinane's work in a workmanlike manner and according to the plans and specifications
approved by the City.” (Cassidy Decl., p. 6, Ins. 6-9.)
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IRDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS”
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
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Grounds for Objection No. 6: To the extent the declarant asserts that CTS was hired to
“inspect and certify completion” of all of the work performed by Cullinane Construction, as
opposed to portions of that work, this statement lacks foundation and constitutes speculation.
(Cal. Evid. Code §§ 403, 702(a).) The declarant does not set forth facts demonstrating he has the
requisite personal knowledge of CTS’ obligations and duties regarding the Property in order to
assert that CTS’ is liable for any and all allegedly defective construction work performed by
Cullinane Construction on the Property.
Court’s Ruling on Objection No. 6: Sustained:
Overruled: J
OBJECTION NO. 7
“The above-described physical damage to the building resulted from defendants!
respective work and services at the 973 Market Street building.” (Cassidy Decl., p. 6, Ins. 10-12.)
Grounds for Objection No. 7: To the extent the declarant asserts that the alleged
physical damage to the Property resulted from CTS’ work, this statement lacks foundation and
constitutes speculation. (Cal. Evid. Code §§ 403, 702(a).) The declarant does not set forth facts
demonstrating he has the requisite personal knowledge of the work performed by CTS, and on
what specific portions of the Property CTS worked, in order to assert that CTS’ work was
allegedly defective.
Court’s Ruling on Objection No. 7: Sustained:
Overruled: Vv
OBJECTIONS TO THE DECLARATION OF THOMAS P. REEVES IN OPPOSITION
TO MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION
TESTING SERVICES, INC.
OBJECTION NO. 8
The entirety of the Declaration of Thomas P. Reeves in Opposition to Motion for
Summary Judgment of Defendant Construction Testing Services, Inc. (“Reeves Decl.” or “Reeves
Declaration”). b
Grotinds for Objection No. 8: The Reeves Declaration is inadmissible expert opinion.
(Cal. Evid. Code § 720(a).) The declarant states that he has been “retained as an expert by
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IRDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS”
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
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plaintiff Performing Arts, LLC with reference to various aspects of this litigation,” and that the
Reeves Declaration sets forth his “opinions and observations.” (Reeves Decl., §§ 1-2.) However,
the Reeves Declaration fails to lay any foundation establishing that he has any “special
knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the
subject to which his testimony relates,” as required by Evidence Code section 720(a). “A person
is qualified to testify as an expert if he has special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert on the subject to which his testimony relates.
Against the objection of a party, such special knowledge, skill, experience, training, or education
must be shown before the witness may testify as an expert.” (Cal. Evid. Code § 720(a).)
Despite Mr. Reeves opining regarding the duties of a special inspector for concrete,
shoterete and rebar, and alleged construction defects and property damage present at the Property,
the Reeves Declaration fails to state whether or not Mr. Reeves is certified as a special inspector
for concrete,' shotcrete and rebar; fails to state whether he has any special knowledge, experience,
training or education regarding concrete, shotcrete and/or rebar; fails to state whether or not Mr.
Reeves is an engineer; and even fails to state whether or not Mr. Reeves has any particular
construction industry expertise of any sort. (See, Reeves Decl., 2.) Instead, the Reeves
Declaration merely states that he is the president of a company that provides “construction
management, engineering and design related services and forensic consulting” services, and has
testified on “construction issues” in the past. (Reeves Decl., 2.)
Having failed to set forth Mr. Reeves alleged qualifications as an expert witness regarding
the duties of a special inspector for concrete, shotcrete and rebar, and alleged construction defects
present at the Property, the Reeves Declaration cannot be considered by this Court. “Against the
objection of a party, such special knowledge, skill, experience, training, or education must be
shown before the witness may testify as an expert.” (Cal. Evid. Code § 720(a).)
' The definition of “Special Inspection” in the Building Code indicates that a special inspector
must have special expertise in the area inspected: “SPECIAL INSPECTION. Inspection as
herein required of the materials, installation, fabrication, erection or placement of components
and connections requiring special expertise to ensure compliance with approved construction
documents and referenced standards (see Section 1704).” (California Building Code, Title 24,
Part 2, Section 1702, emphasis added.)
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4PREPROSED] ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS?
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
Court’s Ruling on Objection No. 8: Sustained: /
Vv
Overruled:
OBJECTION NO. 9
“CTS completed 32 field inspections between 06/11/2007 to 11/12/2007. Bode Concrete
reported 47 dispatch reports between 06/02/2007 and 03/0712008. My review of the inspection
reports confirms that 19 CTS reports match with 19 Bode dispatch reports. 28 dispatch reports
from Bode Concrete dispatch were not registered or reported by CTS. Bode Concrete produced 7
mix designs for the permitted concrete work that conformed to the permitted structural concrete
design: #5012 (3000 psi 5.0 sk, 4.0 slump); #6012 (3000 PSI 6.0 sk, 4.0 slump); #6081 (3000 psi
6.0 sk, 4.0 slump); # 7586 (4000psi 7.5 sk, 2.0 slump); #7586M (4000 psi 7.5 sk, 2.0 slump); and
# 60812 (3000 psi 6.0 sk, 4.0 slump). Of the seven mix designs CTS reported 1 for # 6012, 7 for #
7586M, and 15 for # 7586. . . . Four of the seven batch mix designs were not reported as used in
the project although required under the permit. CTS generated 46 inspection reports, from which,
19 reports were for shotcrete installation and 14 reports for rebar installation.” (Reeves Decl., p.
4, Ins. 4-13 and 17-20.)
Grounds for Objection No. 9: This statement lacks foundation, is speculative, and may
constitute inadmissible hearsay. (Cal. Evid. Code §§ 403, 702(a), 1200.) Furthermore, the best
evidence of this statement would be the documents from which the information in this statement
allegedly originates. (Cal. Evid. Code §§ 1520, 1521.) The declarant does not set forth facts
demonstrating he has personal knowledge regarding the inspections performed by CTS, or the
specific portions of the concrete, shotcrete and rebar work CTS was retained to inspect. Nor does
the declarant identify the specific documents upon which the statement is based, and whether they
were created by CTS or some other party.”
? This defect is highlighted by the fact that a review of the documents produced by CTS in this
action reveals that the declarant’s statement is also factually erroneous. For example, the
declarant asserts that CTS performed inspections at the property at issue from “6/11/07 to
11/12/07,” but the CTS documents establish that its inspections were performed between June 2,
2007 and November 5, 2007. The dates relied upon by the declarant are the dates of the first and
last Summary Reports prepared by CTS. (Courteau Decl., Exs. E—F.) The declarant asserts that
CTS’ reports only mention 3 of 7 concrete mixes, but in fact the reports identify 4 concrete mixes
used at the property. (Courteau Decl., Ex. G.)
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ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS”
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
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Court’s Ruling on Objection No. 9: Sustained:
Overruled: J
OBJECTION NO. 10
“Per CBC section 1704.4 CTS was required to "Verify(ing) use of required design mix"
(ACI 318: Ch. 4., 5.2-5.4); "Inspection of concrete and shotcrete placement for proper application
techniques" (ACI 318: 5.9, 5.10; and "Inspect form work for shape, location and dimensions of
the concrete member being formed." (ACI 318: 6.1.1).” (Reeves Decl., p. 4, Ins. 13-17.)
Grounds for Objection No. 10: This statement lacks foundation, is speculative, and is
inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) The declarant does not
set forth facts demonstrating he has personal knowledge regarding the inspections performed by
CTS, or the specific portions of the concrete, shotcrete and rebar work CTS was retained to
inspect. The declarant also fails to lay any foundation for an alleged expertise that would enable
him to render expert opinions regarding the duties of a special inspector for concrete, shotcrete
and rebar.
Court’s Ruling on Objection No. 10: Sustained:
Overruled: Vv
OBJECTION NO. 11
“Based upon my review of the CTS documents pertaining to said project, including the
unsigned contract, and my general knowledge of the requirements and scope of activities required
of a special inspector under the applicable San Francisco Building Codes and the expectation of
the San Francisco Department of Building Inspection with reference said special inspectors, CTS'
obligations were to examine the manner of the affixing and anchoring of rebar to the existing
structure and preparation of the existing structure for adhesion of concrete. The structural drawing
for permit 2005 09082313 required for special inspections for" (X) 01. Concrete Sampling and
Testing; (X) 04 Reinforcing Steel ... (X) 12. Shotcrete; and (X) 17. Shear Walls and Floor
Systems Used as Shear Diaphragms." The most crucial factors a special inspector's (such as
CTS) obligations are to assure the structural integrity of the work that it is inspecting. The
structural integrity of the concrete work is rendered meaningless and valueless if the fundamental
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)} ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
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adhesion of the rebar and applied concrete to the existing structure is not properly performed. It
also causes the connection to become damaged and compromises the structural capacity.”
(Reeves Decl., p. 4, In. 21 to p. 5, In. 7.)
Grounds for Objection No. 11: This statement lacks foundation, is speculative, and is
inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) Furthermore, the best
evidence of statements regarding the contents of contracts and plans is the documents from which
the information in the statements allegedly originate. (Cal. Evid. Code §§ 1520, 1521.) The
declarant does not set forth facts demonstrating he has personal knowledge regarding “the
expectation of the San Francisco Department of Building Inspection,” rendering his statement
speculative. The declarant also fails to lay any foundation for an alleged expertise that would
enable him to render expert opinions regarding the duties of a special inspector for concrete,
shotcrete and rebar, issues relating to the structural integrity of concrete, and causation relating to
alleged construction defects at the Property.
Court’s Ruling on Objection No. 11: Sustained:
Overruled:
OBJECTION NO. 12
“With reference to the subject project, among other things, this would have required CTS
to inspect as to how the rebar was anchored into the existing structure. CTS clearly failed to
properly inspect such anchoring of existing rebar since its reports do not note, what I have been
able to confirm by my inspections, that the rebar was not properly anchored to the existing
structure. It was, in fact, not epoxied as required by standards in the industry and by code but
simply asserted loosely into the drilled out holes. Further, the concrete was applied over surfaces
to which no adhesion or bonding could be made thereby making the application of the concrete to
various preexisting structural members of the building creating a significant impact to the
integrity since no bonding was and could have been possible due to the lack of adequate surface
preparation prior to the concrete installation. The concrete work envisioned by the plans were to
prevent the building from collapsing, among other things, due to earthquake or weight load stress.
By CTS' failure to properly and adequately report the defective manner the concrete and rebar
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FORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentiey
A Professional Corporation
San Francisco
was executed at the site, CTS's permitted significant structural consequences to the pre-existing
structure by weakening the building and the pre-existing member structural parts of the building
by putting uncalculated stress to the building and its structural parts, thereby causing damaging
deflection and cracks in the pre-existing structural parts of the building.” (Reeves Decl., p. 5, Ins.
8-25.)
Grounds for Objection No. 12: This statement lacks foundation, is speculative, and is
inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) Furthermore, the best
evidence of statements regarding the contents of plans is the documents from which the
information in the statements allegedly originate. (Cal. Evid. Code §§ 1520, 1521.) The
declarant fails to lay any foundation for an alleged expertise that would enable him to render
expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar, the
presence or absence of construction defects related to concrete, shotcrete and/or rebar, causation
relating to alleged construction defects at the Property, and alleged issues relating to the structural
integrity of the Property. The declarant also does not set forth the facts upon which he bases his
assertion that CTS, which merely inspected portions of the new concrete, shotcrete and rebar
work at the Property, had an obligation to inspect the new concrete, shotcrete and rebar work
regarding which he opines. Finally, the declarant’s references to “the concrete work envisioned
by the plans” lacks foundation because he fails to identify the applicable approved plans to which
he is referring — the plans approved by the San Francisco Department of Building Inspection in
2005/2006/2007 or the plans approved in 2008, after CTS’ involvement with the Property ended.
(Courteau Decl., Exs. A —D.)
Court’s Ruling on Objection No. 12: Sustained:
Overruled: V
OBJECTION NO. 13
“Tn addition to the failure to properly anchor the rebar, inadequate amounts of spacing of
rebar was done throughout the concrete work performed at the building and CTS failed to report
on this inadequate spacing and dimensions of the rebar used. This inadequate spacing and
dimension of the rebar used, which should have been noted by CTS and was not, contributed to
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ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
and resulted in the aforementioned structural damages in the above paragraphs, and water
infiltration and damage to the existing structure discussed below.” (Reeves Decl., p. 5, In. 26 top.
6, In. 4.)
Grounds for Objection No. 13: This statement lacks foundation, is speculative, and is
inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) The declarant fails to lay
any foundation for an alleged expertise that would enable him to render expert opinions regarding
the duties of a special inspector for concrete, shotcrete and rebar, the adequacy of the anchoring,
spacing and dimensions of the rebar at the Property, and the presence or absence of construction
defects related to concrete, shotcrete and/or rebar. The declarant also does not set forth the facts
upon which he bases his assertion that CTS, which merely inspected portions of the new concrete,
shotcrete and rebar work at the Property, had an obligation to inspect the new concrete, shotcrete
and rebar work regarding which he opines.
Court’s Ruling on Objection No. 13: Sustained:
Overruled: __\/
OBJECTION NO. 14
“The structural components were designed with specific reinforcing bar requirements. The
as built conditions show different installations than required under the structural design and
permits. CTS, in breach of the standard of care, failed to report concrete was used without the
necessary ties or the appropriate rebar sizing, number, and attachment. TR&A, Inc. found new
concrete installation that required attachments to existing concrete, such as columns and beams,
without the required epoxy grout injected in the attachment for the rebar, matters which CTS
negligently failed to report. This caused the joint connection to be unstable and defectively
installed. It also allowed for cracking of the installed concrete. This, in turn, contributed to water
infiltration discussed below.” (Reeves Decl., p. 6, Ins. 5-14.)
Grounds for Objection No. 14: This statement lacks foundation, is speculative, and is
inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) Furthermore, the best
evidence of statements regarding the contents of plans is the documents from which the
information in the statements allegedly originate. (Cal. Evid. Code §§ 1520, 1521.) The
RCM6587538.1/DCC -ll-
PROPOSED] ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS”
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco.
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| declarant fails to lay any foundation for an alleged expertise that would enable him to render
expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar, the
presence or absence of construction defects related to concrete, shotcrete and/or rebar, and
causation relating to alleged construction defects at the Property. The declarant also does not set
forth the facts upon which he bases his assertion that CTS, which merely inspected portions of the
new concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new
concrete, shotcrete and rebar work regarding which he opines. Finally, the declarant’s references
to “the structural designs and permits” lacks foundation because he fails to identify the applicable
approved plans to which he is referring — the plans approved by the San Francisco Department of
Building Inspection in 2005/2006/2007 or the plans approved in 2008, after CTS’ involvement
with the Property ended. (Courteau Decl., Exs. A ~D.)
Court’s Ruling on Objection No. 14: Sustained: ;
Overruled: Vv
OBJECTION NO. 15
“Additional problems with the steel reinforcing include the lack or omission of steel
reinforcing required by the structural design. The visual and field testing including destructive
testing found numerous locations where the required reinforcement steel was omitted altogether
or where the steel was not installed in accordance with the design and code. In some cases
dissimilar sizes for the steel reinforcing or altered, the number of pieces reduced, or the minimum
concrete coverage for the reinforcing steel was not achieved. Much of the steel was deficient
either in installation techniques, its embedment, or actual configuration required under the
permits and drawings. In addition, the improperly reinforced concrete stressed the pre-existing
concrete and some new concrete, causing cracks and or deformation of the concrete in its
completed condition.” (Reeves Decl., p. 6, Ins. 15-25.)
Grounds for Objection No. 15: This statement lacks foundation, is speculative, and is
inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) Furthermore, the best
evidence of statements regarding the contents of plans is the documents from which the
information in the statements allegedly originate. (Cal. Evid. Code §§ 1520, 1521.) The
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[PROFSSED] ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS?
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
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declarant fails to lay any foundation for an alleged expertise that would enable him to render
expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar, the
presence or absence of construction defects related to concrete, shotcrete and/or rebar, and
causation relating to alleged construction defects at the Property. The declarant’s references to
“the structural design” also lacks foundation because he fails to identify the applicable approved
plans to which he is referring — the plans approved by the San Francisco Department of Building
Inspection in 2005/2006/2007 or the plans approved in 2008, after CTS’ involvement with the
Property ended. (Courteau Decl., Exs. A—D.) Finally, the declarant does not set forth the facts
upon which he bases his assertion that CTS, which merely inspected portions of the new concrete,
shotcrete and rebar work at the Property, had an obligation to inspect the new concrete, shotcrete
and rebar work regarding which he opines.
Court’s Ruling on Objection No. 15: Sustained:
Overruled:
OBJECTION NO. 16
“Assessment and destructive testing confirmed that concrete members (columns and
beams) were installed without compliance to specifications. Longitudinal steel rebar in columns
were cut at concrete slab surfaces (not embedded into the concrete) and absence of stirrups at
column to beam and column to slab joints were found. These conditions were documented at
seventh floor mezzanine, seventh floor, first floor mezzanine, first floor and basement level. CTS
negligently failed to report these defective conditions. It is not possible to remediate this
condition other than demolition and removal of the added shotcrete columns and installation of
new ones. There is extensive evidence, and literature, about the failure of structural systems from
lack of properly installed seismic detailing of column to beam/slab joints.” (Reeves Decl., p. 6,
In. 26 to p. 7, In. 7.)
Grounds for Objection No. 16: This statement lacks foundation, is speculative, and is
inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) Furthermore, the best
evidence of statements regarding the contents of plans is the documents from which the
information in the statements allegedly originate. (Cal. Evid. Code §§ 1520, 1521.) The
Ri -13-
PROPOSED, ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco.
declarant fails to lay any foundation for an alleged expertise that would enable him to render
expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar, the
presence or absence of construction defects related to concrete, shotcrete and/or rebar, and
causation relating to alleged construction defects at the Property. The declarant also does not set
forth the facts upon which he bases his assertion that CTS, which merely inspected portions of the
new concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new
concrete, shotcrete and rebar work regarding which he opines. Finally, the declarant’s references
to “specifications” lacks foundation because he fails to identify the applicable approved plans to
which he is referring — the plans approved by the San Francisco Department of Building
Inspection in 2005/2006/2007 or the plans approved in 2008, after CTS’ involvement with the
Property ended. (Courteau Decl., Exs. A ~ D.)
Court’s Ruling on Objection No. 16: Sustained:
Overruled: Vv
OBJECTION NO. 17
“Another condition that creates a seismic hazard for the building is beams installed along
gridlines 2, 4, and 4.3 from the fourth floor up to the seventh floor without following project
specifications. The longitudinal steel rebar was interrupted at the face of the existing
perpendicular beam and does not allow continuity of the load transfer system. Again, CTS
negligently failed to report the defective rebar workmanship.” (Reeves Decl., p. 7, Ins. 8-13.)
Grounds for Objection No. 17: This statement lacks foundation, is speculative, and is
inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) Furthermore, the best
evidence of statements regarding the contents of plans is the documents from which the
information in the statements allegedly originate. (Cal. Evid. Code §§ 1520, 1521.) The
declarant fails to lay any foundation for an alleged expertise that would enable him to render
expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar, the
presence or absence of construction defects related to concrete, shotcrete and/or rebar, and the
presence or absence of seismic hazards at the Property. The declarant also does not set forth the
facts upon which he bases his assertion that CTS, which merely inspected portions of the new
RC1/6587538./DCC -14-
[PR@PESED] ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
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concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new concrete,
shoterete and rebar work regarding which he opines. Finally, the declarant’s references to
“project specifications” lacks foundation because he fails to identify the applicable approved
plans to which he is referring — the plans approved by the San Francisco Department of Building
Inspection in 2005/2006/2007 or the plans approved in 2008, after CTS’ involvement with the
Property ended. (Courteau Decl., Exs. A—D.)
Court’s Ruling on Objection No. 17: Sustained:
Overruled: __/
OBJECTION NO. 18
“The new installed concrete has substantial defects and damage due to the improper use of
rebar as noted above. Water testing was done to determine if through-and-through cracks could
be observed in the historical pre-existing concrete. The test confirms that water can readily
migrate through numerous cracks and separations in the historic and new slabs, at the control
joints, and into the column slab interface where new concrete attaches to the historic elements.
The damage was also confirmed in the columns where horizontal cracking on an oblique basis is
observed in the bottom third of the numerous column impacted by this improperly reinforced
added concrete load.” (Reeves Decl., p. 7, Ins. 14-22.)
Grounds for Objection No. 18: This statement lacks foundation, is speculative, and is
| inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) The declarant fails to lay
any foundation for an alleged expertise that would enable him to render expert opinions regarding
the duties of a special inspector for concrete, shotcrete and rebar, the presence or absence of
construction defects related to concrete, shotcrete and/or rebar, and causation relating to alleged
construction defects at the Property. The declarant also does not set forth the facts upon which he
bases his assertion that CTS, which merely inspected portions of the new concrete, shotcrete and
rebar work at the Property, had an obligation to inspect the new concrete, shotcrete and rebar
work regarding which he opines.
Court’s Ruling on Objection No. 18: Sustained:
Overruled: V
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-D] ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’
EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
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OBJECTION NO. 19
“During demolition and concrete construction, existing lead paint and other finish-
materials were not removed before the attachment of new added concrete structural elements’. In
many cases the lead finished paint over surface applied plaster created a bond break for the new
added concrete, where it attaches to the historic concrete columns and beams. As such, the
concrete is compromised and has no bond as required by the permit specifications, the California
Building Code, and as summarized by the American Concrete Institute, putting stress of the pre-
existing and new added structural members.” (Reeves Decl., p. 7, In. 23 to p. 8, In. 2.)
Grounds for Objection No. 19: This statement lacks foundation, is speculative, and is
inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) Furthermore, the best
evidence of statements regarding the contents of plans is the documents from which the
information in the statements allegedly originate. (Cal. Evid. Code §§ 1520, 1521.) The
declarant fails to lay any foundation for an alleged expertise that would enable him to render
expert opinions regarding the presence or absence of construction defects related to concrete,
shotcrete and/or rebar, causation relating to alleged construction defects at the Property, and the
presence or absence of structural stress at the Property. The declarant’s references to “permit
specifications” also lacks foundation because he fails to identify the applicable approved plans to
which he is referring — the plans approved by the San Francisco Department of Building
Inspection in 2005/2006/2007 or the plans approved in 2008, after CTS’ involvement with the
Property ended. (Courteau Decl., Exs. A—D.) Finally, the declarant does not set forth the facts
upon which he bases his assertion that CTS, which merely inspected portions of the new concrete,
shoterete and rebar work at the Property, had an obligation to inspect the new concrete, shotcrete
and rebar work regarding which he opines.
Court’s Ruling on Objection No. 19: Sustained:
Overruled:
OBJECTION NO. 20
“Water infiltrated the pre-existing brick and mortar through cracks in the new concrete. In
these conditions the water has migrated in the pre-existing brick mortar and causing the mortar to
RC1/6587538.1/DCC ~ 16 -
Rese ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’
IDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
become brittle and non-bonded as it supports the brick. This condition is also found on the
exterior south and north walls and on the property line walls running east and west Water
infiltration into the mortar and brick has in numerous locations caused the brick to spall and to de-
bond at the mortar joint As a result repair at these conditions will be required for further
installation of the interior structural and non-structural concrete or remediated concrete where
damaged.” (Reeves Decl., p. 8, Ins. 3-10.)
Grounds for Objection No. 20: This statement lacks foundation, is speculative, and is
inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) The declarant fails to lay
any foundation for an alleged expertise that would enable him to render expert opinions regarding
the presence or absence of construction defects related to concrete, shotcrete and/or rebar, and
causation relating to alleged construction defects at the Property. The declarant also does not set
forth the facts upon which he bases his assertion that CTS, which merely inspected portions of the
new concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new
concrete, shotcrete and rebar work regarding which he opines.
Court’s Ruling on Objection No. 20: Sustained:
Overruled: v
OBJECTION NO. 21
“The water infiltration, occurring from the cracked concrete and voids in the concrete
abutments and joints, has saturated the top plates and bottom plates of the metal stud non-bearing
partition walls that completed for the interior framing. In some locations the finish process was
underway, and the saturation of these galvanized sheet metal framing members caused the
components to oxidize, so that they do not have the same structural capacity that they did when
installed without the oxidation.” (Reeves Decl., p. 8, Ins. 11-16.)
Grounds for Objection No. 21: This statement lacks foundation, is speculative, and is
inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) The declarant fails to lay
any foundation for an alleged expertise that would enable him to render expert opinions regarding
the presence or absence of construction defects related to concrete, shotcrete and/or rebar, and
causation relating to alleged construction defects at the Property. The declarant also does not set
RC1/6587538,/DCC -17-
}| ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS?
ENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
forth the facts upon which he bases his assertion that CTS, which merely inspected portions of the
new concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new
concrete, shotcrete and rebar work regarding which he opines.
Court’s Ruling on Objection No. 21: Sustained:
Overruled: Vv
OBJECTION NO. 22
“As noted above, CTS was acting as a ‘special inspector’ on behalf of the San Francisco
Department of Building Inspection, This means CTS’ activities were in lieu of the City and
County of San Francisco building inspector who depended on CTS’ reports to accurately report
the activities at a construction site. In other words, instead of a City Inspector doing a physical
on-site inspection, it relies on the special inspectors, in this case CTS, to physically inspect at the
project site and accurately report its findings. Accordingly, CTS was required to and, in fact in
this case, did submit a copy of its reports to the City and County of San Francisco Department of
Building Inspections. The process is that these reports become a matter of public record and are
reviewed by the Building Department personnel. If a special inspector, such as CTS, reports
faulty workmanship, improper workmanship, or non-compliance with the plans and/or codes,
then the City and County of San Francisco will immediately act thereon and issue a "stop work
order" for the project. Thus, in the instant case, CTS’ failure to have promptly informed the City
of the above-described improper concrete rebar workmanship at the subject site resulted in the
City not being aware of the defective workmanship and further not issuing a stop work order as it
would have in the normal course of its oversight.” (Reeves Decl., p. 8, In. 17 to p. 9, In. 5.)
Grounds for Objection No. 22: This statement lacks foundation, is speculative, and is
inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) The declarant fails to lay
any foundation for an alleged expertise that would enable him to render expert opinions regarding
the duties of a special inspector for concrete, shotcrete and rebar, the presence or absence of
construction defects related to concrete, shotcrete and/or rebar, and the relationship between a
special inspector and the San Francisco Department of Building Inspection. The declarant also
does not set forth the facts upon which he bases his assertion that CTS, which merely inspected
RC16587538.1/DCC -18-
IRDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’
"EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
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portions of the new concrete, shotcrete and rebar work at the Property, had an obligation to
inspect the new concrete, shotcrete and rebar work he contends was defective. Finally, the
declarant does not set forth the facts upon which he bases his assertions regarding the knowledge,
thoughts and hypothetical actions of persons employed by the San Francisco Department of
Building Inspection.
Court’s Ruling on Objection No. 22: Sustained:
Overruled:
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JUDGE OF THE SUPERIOR COURT
MARLA JM:
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Preview
MA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Aug-24-2012 11:41 am Case Number: CGC-10-498405 Filing Date: Aug-24-2012 11:41 Filed by: LESLEY FISCELLA Juke Box: 001 Image: 03738087 ORDER PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al 001C03738087 Instructions: Please place this sheet on top of the document to be scanned.2012) § Aug 2 Ropers Majeski Kohn & Bentley A Professional Corporation San Francisco oD we IN DY JOHN G. DOOLING (SBN 154358) DEVIN C. COURTEAU (SBN 197505) ROPERS, MAJESKI, KOHN & BENTLEY = 201 Spear Street, Suite 1000 San Francisco, CA 94105-1667 San Francisco County Superior Court Telephone: (415) 543-4800 " ty Super Facsimile: (415) 972-6301 AUG 2 4 2012 Email: jdooling@rmkb.com dcourteau@rmkb.com CLERK OF THE COURT Attorneys for Defendant and Cross-Complainant BF i Deputy Clerk CONSTRUCTION TESTING SERVICES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PERFORMING ARTS, LLC, CASE NO. CGC-10-498405 Plaintiff, {—TBROPOSED] ORDER ON CONSTRUCTION TESTING SERVICES, v. INC.’S OBJECTIONS TO PERFORMING ARTS’ EVIDENCE OFFERED IN KILLARNEY CONSTRUCTION CO., OPPOSITION TO MOTION FOR INC., SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT Defendant. Date : August 24, 2012 Time : 9:30 a.m. Dept. : 302 Honorable Harold E. Kahn AND RELATED CROSS-ACTIONS. Trial Date : February 4, 2013 Pursuant to California Rule of Court 3.1354, the Court issues the following rulings on the objections of defendant and cross-complainant Construction Testing Services, Inc. (“CTS”) to evidence offered by plaintiff Performing Arts, LCC (“Plaintiff”) in opposition to CTS’s motion for summary judgment. OBJECTIONS TO THE DECLARATION OF JOSEPH P. CASSIDY IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS CARDINAL CONSULTING, INC. AND CONSTRUCT. STING SERVICES, INC. OBJECTION NO. 1 “However, at that time in 2008, neither J nor any of my employees at Centrix were aware RC16587538.1/DCC -l- | ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS” EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco oem IN DW 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ° e of all of the construction defects at said premises and the physical damage to that property resulting from defendants’ defective construction work, in particular the defects concealed by virtue of concrete.” (Declaration of Joseph P. Cassidy in Opposition to Motion for Summary Judgment of Defendants Cardinal =< Inc. and Construction Testing Services, Inc. ~ = Grounds for Objection No. 1: To the extent the declarant asserts there was “physical (“Cassidy Decl.”),(p. 3, Ins. 14 damage to [973 Market Street, San Francisco, California (the “Property”)] resulting from [CTS’] defective construction work,” this statement lacks foundation and constitutes speculation. (Cal. Evid. Code §§ 403, 702(a).) The declarant does not set forth facts demonstrating he has the requisite personal knowledge of the work performed by CTS, and on what specific portions of the Property CTS worked, in order to assert that CTS’ work was allegedly defective. Court’s Ruling on Objection No. 1: Sustained: Fret Not umd at p.3, Dome > F vo Overruled: OBJECTION NO. 2 “Tt was only once Performing Arts took possession of the building at the Property that I became aware of the unknown and latent construction defects in the building, and physical damage to the building resulting from the construction activities undertaken by defendants.” (Cassidy Dect; p. 3, Ins. 20-23.) —_) Grounds for Objection No. 2: To the extent the declarant asserts that there were “construction defects in the [Property], and physical damage to the [Property] resulting from the construction activities undertaken by” CTS, this statement lacks foundation and constitutes speculation. (Cal. Evid. Code §§ 403, 702(a).) The declarant does not set forth facts demonstrating he has the requisite personal knowledge of the work performed by CTS, and on what specific portions of the Property CTS worked, in order to assert that CTS’ work was allegedly defective. Court’s Ruling on Objection No. 2: Sustained: Tet net bud at p 3, £ twadg Overruled: Yo -23. RC1/6587538.1/DCC -2- )] ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’ EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco wn Co eo YN DW 10 1 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 e e OBJECTION NO. 3 “I gained this knowledge through invasive and non-invasive examination and demolition that exposed the defective workmanship, specifically workmanship that were not done in compliance with the approved existing plans. For example, throughout the building Performing Arts' post-acquisition investigation revealed that the concrete work, including the rebar installation as an integral part of said concrete work, was not done in compliance with the approved City plans, including faulty layout and insertion of rebar into the pre-existing physical structure, insufficient diameter rebar, insufficient number of rebar, improper placement of doweling of rebar, improper thicknesses of concrete, and improper placement of concrete and removal of pre-existing concrete.” (Cassidy Decl., p. 4, In. 27 to p. 5, In. 7.) Grounds for Objection No. 3: As demonstrated by Exhibits A — D to the Request for Judicial Notice and Declaration of Devin C. Courteau in Support of Construction Testing Services, Inc.’s Objections to Performing Arts’ Evidence Offered in Opposition to Motion for Summary Judgment on Plaintiff's Complaint (“Courteau Declaration”), there are two sets of “approved” plans, one set approved by the San Francisco Department of Building Inspection in 2005/2006/2007 and another approved in 2008. The declarant’s statements regarding whether or not work was performed in compliance “approved existing plans” or “approved City plans” therefore lack foundation because he fails to identify the applicable approved plans to which he is referring, and fails to attach any copy of those plans. Court’s Ruling on Objection No. 3: Sustained: / NO Overruled: OBJECTION NO. 4 “Further, the physical damage has occurred to the pre-existing structure by the improper installation of new windows throughout the building, which windows were not properly installed in a workmanlike fashion such that the elements are not kept out. The resulting weather intrusion into the building has resulted in significant moisture damage to the building, consisting of corrosion and decay of the pre-existing structure. Similarly, throughout the building, pre-existing plumbing has been rendered useless and for destroyed by the faulty "replacement" plumbing RC1/6587538.1/DCC -3- IRDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’ EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco Co oO OND 14 16 e e installed while under the direction and control of the defendants in this matter.” (Cassidy Decl., p. 5, Ins. 18-25.) Grounds for Objection No. 4: This statement is irrelevant. (Cal. Evid. Code § 350.) It is undisputed that CTS’ responsibilities as special inspector did not include inspection of window installation at the Property. (Separate Statement of Undisputed Material Facts in Support of Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's Complaint, Undisputed Material Fact (“UMF”) No. 3.) Accordingly, evidence regarding any damage to the Property allegedly caused by improper window installation is irrelevant to Plaintiff's claims against CTS. “No evidence is admissible except relevant evidence. (Cal. Evid. Code § 350.) Court’s Ruling on Objection No. 4: . Sustained: Overruled: __\\ / OBJECTION NO. 5 “Also, concrete was poured into pre-existing piping in the building by the negligent services of the defendants responsible for concrete work, Killarney Construction Co., Inc., Cullinane Construction, MidMarket Development Co., Inc., and Construction Testing Services resulting in further physical damage to the existing plumbing.” (Cassidy Deecl., p. 5, In. 25 to p. 6, In. 1.) Grounds for Objection No. 5: This statement lacks foundation and constitutes speculation. (Cal. Evid. Code §§ 403, 702(a).) The declarant does not set forth facts demonstrating he has the requisite personal knowledge of the work performed by CTS, and on what specific portions of the Property CTS worked, in order to assert that CTS’ is liable for concrete that was allegedly poured into pre-existing piping in the Property. Court’s Ruling on Objection No. 5: Sustained: Overruled: v OBJECTION NO. 6 “Construction Testing Services was the consultant hired to inspect and certify completion of Cullinane's work in a workmanlike manner and according to the plans and specifications approved by the City.” (Cassidy Decl., p. 6, Ins. 6-9.) RC1/6587538.1/DCC -4- IRDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS” EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco 2 3 Grounds for Objection No. 6: To the extent the declarant asserts that CTS was hired to “inspect and certify completion” of all of the work performed by Cullinane Construction, as opposed to portions of that work, this statement lacks foundation and constitutes speculation. (Cal. Evid. Code §§ 403, 702(a).) The declarant does not set forth facts demonstrating he has the requisite personal knowledge of CTS’ obligations and duties regarding the Property in order to assert that CTS’ is liable for any and all allegedly defective construction work performed by Cullinane Construction on the Property. Court’s Ruling on Objection No. 6: Sustained: Overruled: J OBJECTION NO. 7 “The above-described physical damage to the building resulted from defendants! respective work and services at the 973 Market Street building.” (Cassidy Decl., p. 6, Ins. 10-12.) Grounds for Objection No. 7: To the extent the declarant asserts that the alleged physical damage to the Property resulted from CTS’ work, this statement lacks foundation and constitutes speculation. (Cal. Evid. Code §§ 403, 702(a).) The declarant does not set forth facts demonstrating he has the requisite personal knowledge of the work performed by CTS, and on what specific portions of the Property CTS worked, in order to assert that CTS’ work was allegedly defective. Court’s Ruling on Objection No. 7: Sustained: Overruled: Vv OBJECTIONS TO THE DECLARATION OF THOMAS P. REEVES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. OBJECTION NO. 8 The entirety of the Declaration of Thomas P. Reeves in Opposition to Motion for Summary Judgment of Defendant Construction Testing Services, Inc. (“Reeves Decl.” or “Reeves Declaration”). b Grotinds for Objection No. 8: The Reeves Declaration is inadmissible expert opinion. (Cal. Evid. Code § 720(a).) The declarant states that he has been “retained as an expert by RC1/6587538./DCC -5- IRDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS” EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco N plaintiff Performing Arts, LLC with reference to various aspects of this litigation,” and that the Reeves Declaration sets forth his “opinions and observations.” (Reeves Decl., §§ 1-2.) However, the Reeves Declaration fails to lay any foundation establishing that he has any “special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates,” as required by Evidence Code section 720(a). “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” (Cal. Evid. Code § 720(a).) Despite Mr. Reeves opining regarding the duties of a special inspector for concrete, shoterete and rebar, and alleged construction defects and property damage present at the Property, the Reeves Declaration fails to state whether or not Mr. Reeves is certified as a special inspector for concrete,' shotcrete and rebar; fails to state whether he has any special knowledge, experience, training or education regarding concrete, shotcrete and/or rebar; fails to state whether or not Mr. Reeves is an engineer; and even fails to state whether or not Mr. Reeves has any particular construction industry expertise of any sort. (See, Reeves Decl., 2.) Instead, the Reeves Declaration merely states that he is the president of a company that provides “construction management, engineering and design related services and forensic consulting” services, and has testified on “construction issues” in the past. (Reeves Decl., 2.) Having failed to set forth Mr. Reeves alleged qualifications as an expert witness regarding the duties of a special inspector for concrete, shotcrete and rebar, and alleged construction defects present at the Property, the Reeves Declaration cannot be considered by this Court. “Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” (Cal. Evid. Code § 720(a).) ' The definition of “Special Inspection” in the Building Code indicates that a special inspector must have special expertise in the area inspected: “SPECIAL INSPECTION. Inspection as herein required of the materials, installation, fabrication, erection or placement of components and connections requiring special expertise to ensure compliance with approved construction documents and referenced standards (see Section 1704).” (California Building Code, Title 24, Part 2, Section 1702, emphasis added.) RC1/6587538.1/DCC -6- 4PREPROSED] ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS? EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco Court’s Ruling on Objection No. 8: Sustained: / Vv Overruled: OBJECTION NO. 9 “CTS completed 32 field inspections between 06/11/2007 to 11/12/2007. Bode Concrete reported 47 dispatch reports between 06/02/2007 and 03/0712008. My review of the inspection reports confirms that 19 CTS reports match with 19 Bode dispatch reports. 28 dispatch reports from Bode Concrete dispatch were not registered or reported by CTS. Bode Concrete produced 7 mix designs for the permitted concrete work that conformed to the permitted structural concrete design: #5012 (3000 psi 5.0 sk, 4.0 slump); #6012 (3000 PSI 6.0 sk, 4.0 slump); #6081 (3000 psi 6.0 sk, 4.0 slump); # 7586 (4000psi 7.5 sk, 2.0 slump); #7586M (4000 psi 7.5 sk, 2.0 slump); and # 60812 (3000 psi 6.0 sk, 4.0 slump). Of the seven mix designs CTS reported 1 for # 6012, 7 for # 7586M, and 15 for # 7586. . . . Four of the seven batch mix designs were not reported as used in the project although required under the permit. CTS generated 46 inspection reports, from which, 19 reports were for shotcrete installation and 14 reports for rebar installation.” (Reeves Decl., p. 4, Ins. 4-13 and 17-20.) Grounds for Objection No. 9: This statement lacks foundation, is speculative, and may constitute inadmissible hearsay. (Cal. Evid. Code §§ 403, 702(a), 1200.) Furthermore, the best evidence of this statement would be the documents from which the information in this statement allegedly originates. (Cal. Evid. Code §§ 1520, 1521.) The declarant does not set forth facts demonstrating he has personal knowledge regarding the inspections performed by CTS, or the specific portions of the concrete, shotcrete and rebar work CTS was retained to inspect. Nor does the declarant identify the specific documents upon which the statement is based, and whether they were created by CTS or some other party.” ? This defect is highlighted by the fact that a review of the documents produced by CTS in this action reveals that the declarant’s statement is also factually erroneous. For example, the declarant asserts that CTS performed inspections at the property at issue from “6/11/07 to 11/12/07,” but the CTS documents establish that its inspections were performed between June 2, 2007 and November 5, 2007. The dates relied upon by the declarant are the dates of the first and last Summary Reports prepared by CTS. (Courteau Decl., Exs. E—F.) The declarant asserts that CTS’ reports only mention 3 of 7 concrete mixes, but in fact the reports identify 4 concrete mixes used at the property. (Courteau Decl., Ex. G.) RCW6587538.1/DCC -7- ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS” EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco N Court’s Ruling on Objection No. 9: Sustained: Overruled: J OBJECTION NO. 10 “Per CBC section 1704.4 CTS was required to "Verify(ing) use of required design mix" (ACI 318: Ch. 4., 5.2-5.4); "Inspection of concrete and shotcrete placement for proper application techniques" (ACI 318: 5.9, 5.10; and "Inspect form work for shape, location and dimensions of the concrete member being formed." (ACI 318: 6.1.1).” (Reeves Decl., p. 4, Ins. 13-17.) Grounds for Objection No. 10: This statement lacks foundation, is speculative, and is inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) The declarant does not set forth facts demonstrating he has personal knowledge regarding the inspections performed by CTS, or the specific portions of the concrete, shotcrete and rebar work CTS was retained to inspect. The declarant also fails to lay any foundation for an alleged expertise that would enable him to render expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar. Court’s Ruling on Objection No. 10: Sustained: Overruled: Vv OBJECTION NO. 11 “Based upon my review of the CTS documents pertaining to said project, including the unsigned contract, and my general knowledge of the requirements and scope of activities required of a special inspector under the applicable San Francisco Building Codes and the expectation of the San Francisco Department of Building Inspection with reference said special inspectors, CTS' obligations were to examine the manner of the affixing and anchoring of rebar to the existing structure and preparation of the existing structure for adhesion of concrete. The structural drawing for permit 2005 09082313 required for special inspections for" (X) 01. Concrete Sampling and Testing; (X) 04 Reinforcing Steel ... (X) 12. Shotcrete; and (X) 17. Shear Walls and Floor Systems Used as Shear Diaphragms." The most crucial factors a special inspector's (such as CTS) obligations are to assure the structural integrity of the work that it is inspecting. The structural integrity of the concrete work is rendered meaningless and valueless if the fundamental RC1/6587538.1/DCC, -8- )} ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’ EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco Oo oe ND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 adhesion of the rebar and applied concrete to the existing structure is not properly performed. It also causes the connection to become damaged and compromises the structural capacity.” (Reeves Decl., p. 4, In. 21 to p. 5, In. 7.) Grounds for Objection No. 11: This statement lacks foundation, is speculative, and is inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) Furthermore, the best evidence of statements regarding the contents of contracts and plans is the documents from which the information in the statements allegedly originate. (Cal. Evid. Code §§ 1520, 1521.) The declarant does not set forth facts demonstrating he has personal knowledge regarding “the expectation of the San Francisco Department of Building Inspection,” rendering his statement speculative. The declarant also fails to lay any foundation for an alleged expertise that would enable him to render expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar, issues relating to the structural integrity of concrete, and causation relating to alleged construction defects at the Property. Court’s Ruling on Objection No. 11: Sustained: Overruled: OBJECTION NO. 12 “With reference to the subject project, among other things, this would have required CTS to inspect as to how the rebar was anchored into the existing structure. CTS clearly failed to properly inspect such anchoring of existing rebar since its reports do not note, what I have been able to confirm by my inspections, that the rebar was not properly anchored to the existing structure. It was, in fact, not epoxied as required by standards in the industry and by code but simply asserted loosely into the drilled out holes. Further, the concrete was applied over surfaces to which no adhesion or bonding could be made thereby making the application of the concrete to various preexisting structural members of the building creating a significant impact to the integrity since no bonding was and could have been possible due to the lack of adequate surface preparation prior to the concrete installation. The concrete work envisioned by the plans were to prevent the building from collapsing, among other things, due to earthquake or weight load stress. By CTS' failure to properly and adequately report the defective manner the concrete and rebar RC1/6587538.1/DCC -9- FORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’ EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentiey A Professional Corporation San Francisco was executed at the site, CTS's permitted significant structural consequences to the pre-existing structure by weakening the building and the pre-existing member structural parts of the building by putting uncalculated stress to the building and its structural parts, thereby causing damaging deflection and cracks in the pre-existing structural parts of the building.” (Reeves Decl., p. 5, Ins. 8-25.) Grounds for Objection No. 12: This statement lacks foundation, is speculative, and is inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) Furthermore, the best evidence of statements regarding the contents of plans is the documents from which the information in the statements allegedly originate. (Cal. Evid. Code §§ 1520, 1521.) The declarant fails to lay any foundation for an alleged expertise that would enable him to render expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar, the presence or absence of construction defects related to concrete, shotcrete and/or rebar, causation relating to alleged construction defects at the Property, and alleged issues relating to the structural integrity of the Property. The declarant also does not set forth the facts upon which he bases his assertion that CTS, which merely inspected portions of the new concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new concrete, shotcrete and rebar work regarding which he opines. Finally, the declarant’s references to “the concrete work envisioned by the plans” lacks foundation because he fails to identify the applicable approved plans to which he is referring — the plans approved by the San Francisco Department of Building Inspection in 2005/2006/2007 or the plans approved in 2008, after CTS’ involvement with the Property ended. (Courteau Decl., Exs. A —D.) Court’s Ruling on Objection No. 12: Sustained: Overruled: V OBJECTION NO. 13 “Tn addition to the failure to properly anchor the rebar, inadequate amounts of spacing of rebar was done throughout the concrete work performed at the building and CTS failed to report on this inadequate spacing and dimensions of the rebar used. This inadequate spacing and dimension of the rebar used, which should have been noted by CTS and was not, contributed to RC1/6587538.1/DCC -10- ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’ EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco and resulted in the aforementioned structural damages in the above paragraphs, and water infiltration and damage to the existing structure discussed below.” (Reeves Decl., p. 5, In. 26 top. 6, In. 4.) Grounds for Objection No. 13: This statement lacks foundation, is speculative, and is inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) The declarant fails to lay any foundation for an alleged expertise that would enable him to render expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar, the adequacy of the anchoring, spacing and dimensions of the rebar at the Property, and the presence or absence of construction defects related to concrete, shotcrete and/or rebar. The declarant also does not set forth the facts upon which he bases his assertion that CTS, which merely inspected portions of the new concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new concrete, shotcrete and rebar work regarding which he opines. Court’s Ruling on Objection No. 13: Sustained: Overruled: __\/ OBJECTION NO. 14 “The structural components were designed with specific reinforcing bar requirements. The as built conditions show different installations than required under the structural design and permits. CTS, in breach of the standard of care, failed to report concrete was used without the necessary ties or the appropriate rebar sizing, number, and attachment. TR&A, Inc. found new concrete installation that required attachments to existing concrete, such as columns and beams, without the required epoxy grout injected in the attachment for the rebar, matters which CTS negligently failed to report. This caused the joint connection to be unstable and defectively installed. It also allowed for cracking of the installed concrete. This, in turn, contributed to water infiltration discussed below.” (Reeves Decl., p. 6, Ins. 5-14.) Grounds for Objection No. 14: This statement lacks foundation, is speculative, and is inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) Furthermore, the best evidence of statements regarding the contents of plans is the documents from which the information in the statements allegedly originate. (Cal. Evid. Code §§ 1520, 1521.) The RCM6587538.1/DCC -ll- PROPOSED] ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS” EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco. oem IN DAW 10 i 12 13 14 15 16 17 18 19 20 2 22 23 24 25 26 27 28 | declarant fails to lay any foundation for an alleged expertise that would enable him to render expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar, the presence or absence of construction defects related to concrete, shotcrete and/or rebar, and causation relating to alleged construction defects at the Property. The declarant also does not set forth the facts upon which he bases his assertion that CTS, which merely inspected portions of the new concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new concrete, shotcrete and rebar work regarding which he opines. Finally, the declarant’s references to “the structural designs and permits” lacks foundation because he fails to identify the applicable approved plans to which he is referring — the plans approved by the San Francisco Department of Building Inspection in 2005/2006/2007 or the plans approved in 2008, after CTS’ involvement with the Property ended. (Courteau Decl., Exs. A ~D.) Court’s Ruling on Objection No. 14: Sustained: ; Overruled: Vv OBJECTION NO. 15 “Additional problems with the steel reinforcing include the lack or omission of steel reinforcing required by the structural design. The visual and field testing including destructive testing found numerous locations where the required reinforcement steel was omitted altogether or where the steel was not installed in accordance with the design and code. In some cases dissimilar sizes for the steel reinforcing or altered, the number of pieces reduced, or the minimum concrete coverage for the reinforcing steel was not achieved. Much of the steel was deficient either in installation techniques, its embedment, or actual configuration required under the permits and drawings. In addition, the improperly reinforced concrete stressed the pre-existing concrete and some new concrete, causing cracks and or deformation of the concrete in its completed condition.” (Reeves Decl., p. 6, Ins. 15-25.) Grounds for Objection No. 15: This statement lacks foundation, is speculative, and is inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) Furthermore, the best evidence of statements regarding the contents of plans is the documents from which the information in the statements allegedly originate. (Cal. Evid. Code §§ 1520, 1521.) The RC1/6587538.1/DCC -12- [PROFSSED] ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS? EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco om ND HW BF WN | NN YN NY YN NN NY BeBe Be Be ewe we Be He eo QA A BF BN = SO we AN DAHA BF WKH = S declarant fails to lay any foundation for an alleged expertise that would enable him to render expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar, the presence or absence of construction defects related to concrete, shotcrete and/or rebar, and causation relating to alleged construction defects at the Property. The declarant’s references to “the structural design” also lacks foundation because he fails to identify the applicable approved plans to which he is referring — the plans approved by the San Francisco Department of Building Inspection in 2005/2006/2007 or the plans approved in 2008, after CTS’ involvement with the Property ended. (Courteau Decl., Exs. A—D.) Finally, the declarant does not set forth the facts upon which he bases his assertion that CTS, which merely inspected portions of the new concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new concrete, shotcrete and rebar work regarding which he opines. Court’s Ruling on Objection No. 15: Sustained: Overruled: OBJECTION NO. 16 “Assessment and destructive testing confirmed that concrete members (columns and beams) were installed without compliance to specifications. Longitudinal steel rebar in columns were cut at concrete slab surfaces (not embedded into the concrete) and absence of stirrups at column to beam and column to slab joints were found. These conditions were documented at seventh floor mezzanine, seventh floor, first floor mezzanine, first floor and basement level. CTS negligently failed to report these defective conditions. It is not possible to remediate this condition other than demolition and removal of the added shotcrete columns and installation of new ones. There is extensive evidence, and literature, about the failure of structural systems from lack of properly installed seismic detailing of column to beam/slab joints.” (Reeves Decl., p. 6, In. 26 to p. 7, In. 7.) Grounds for Objection No. 16: This statement lacks foundation, is speculative, and is inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) Furthermore, the best evidence of statements regarding the contents of plans is the documents from which the information in the statements allegedly originate. (Cal. Evid. Code §§ 1520, 1521.) The Ri -13- PROPOSED, ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’ EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco. declarant fails to lay any foundation for an alleged expertise that would enable him to render expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar, the presence or absence of construction defects related to concrete, shotcrete and/or rebar, and causation relating to alleged construction defects at the Property. The declarant also does not set forth the facts upon which he bases his assertion that CTS, which merely inspected portions of the new concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new concrete, shotcrete and rebar work regarding which he opines. Finally, the declarant’s references to “specifications” lacks foundation because he fails to identify the applicable approved plans to which he is referring — the plans approved by the San Francisco Department of Building Inspection in 2005/2006/2007 or the plans approved in 2008, after CTS’ involvement with the Property ended. (Courteau Decl., Exs. A ~ D.) Court’s Ruling on Objection No. 16: Sustained: Overruled: Vv OBJECTION NO. 17 “Another condition that creates a seismic hazard for the building is beams installed along gridlines 2, 4, and 4.3 from the fourth floor up to the seventh floor without following project specifications. The longitudinal steel rebar was interrupted at the face of the existing perpendicular beam and does not allow continuity of the load transfer system. Again, CTS negligently failed to report the defective rebar workmanship.” (Reeves Decl., p. 7, Ins. 8-13.) Grounds for Objection No. 17: This statement lacks foundation, is speculative, and is inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) Furthermore, the best evidence of statements regarding the contents of plans is the documents from which the information in the statements allegedly originate. (Cal. Evid. Code §§ 1520, 1521.) The declarant fails to lay any foundation for an alleged expertise that would enable him to render expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar, the presence or absence of construction defects related to concrete, shotcrete and/or rebar, and the presence or absence of seismic hazards at the Property. The declarant also does not set forth the facts upon which he bases his assertion that CTS, which merely inspected portions of the new RC1/6587538./DCC -14- [PR@PESED] ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’ EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco 0 ow ON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new concrete, shoterete and rebar work regarding which he opines. Finally, the declarant’s references to “project specifications” lacks foundation because he fails to identify the applicable approved plans to which he is referring — the plans approved by the San Francisco Department of Building Inspection in 2005/2006/2007 or the plans approved in 2008, after CTS’ involvement with the Property ended. (Courteau Decl., Exs. A—D.) Court’s Ruling on Objection No. 17: Sustained: Overruled: __/ OBJECTION NO. 18 “The new installed concrete has substantial defects and damage due to the improper use of rebar as noted above. Water testing was done to determine if through-and-through cracks could be observed in the historical pre-existing concrete. The test confirms that water can readily migrate through numerous cracks and separations in the historic and new slabs, at the control joints, and into the column slab interface where new concrete attaches to the historic elements. The damage was also confirmed in the columns where horizontal cracking on an oblique basis is observed in the bottom third of the numerous column impacted by this improperly reinforced added concrete load.” (Reeves Decl., p. 7, Ins. 14-22.) Grounds for Objection No. 18: This statement lacks foundation, is speculative, and is | inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) The declarant fails to lay any foundation for an alleged expertise that would enable him to render expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar, the presence or absence of construction defects related to concrete, shotcrete and/or rebar, and causation relating to alleged construction defects at the Property. The declarant also does not set forth the facts upon which he bases his assertion that CTS, which merely inspected portions of the new concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new concrete, shotcrete and rebar work regarding which he opines. Court’s Ruling on Objection No. 18: Sustained: Overruled: V RC1/6587538, /DCC -15- -D] ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’ EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco w Co em ND 10 i 12 13 14 15 16 17 18 19 20 2 22 23 24 25 26 27 28 OBJECTION NO. 19 “During demolition and concrete construction, existing lead paint and other finish- materials were not removed before the attachment of new added concrete structural elements’. In many cases the lead finished paint over surface applied plaster created a bond break for the new added concrete, where it attaches to the historic concrete columns and beams. As such, the concrete is compromised and has no bond as required by the permit specifications, the California Building Code, and as summarized by the American Concrete Institute, putting stress of the pre- existing and new added structural members.” (Reeves Decl., p. 7, In. 23 to p. 8, In. 2.) Grounds for Objection No. 19: This statement lacks foundation, is speculative, and is inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) Furthermore, the best evidence of statements regarding the contents of plans is the documents from which the information in the statements allegedly originate. (Cal. Evid. Code §§ 1520, 1521.) The declarant fails to lay any foundation for an alleged expertise that would enable him to render expert opinions regarding the presence or absence of construction defects related to concrete, shotcrete and/or rebar, causation relating to alleged construction defects at the Property, and the presence or absence of structural stress at the Property. The declarant’s references to “permit specifications” also lacks foundation because he fails to identify the applicable approved plans to which he is referring — the plans approved by the San Francisco Department of Building Inspection in 2005/2006/2007 or the plans approved in 2008, after CTS’ involvement with the Property ended. (Courteau Decl., Exs. A—D.) Finally, the declarant does not set forth the facts upon which he bases his assertion that CTS, which merely inspected portions of the new concrete, shoterete and rebar work at the Property, had an obligation to inspect the new concrete, shotcrete and rebar work regarding which he opines. Court’s Ruling on Objection No. 19: Sustained: Overruled: OBJECTION NO. 20 “Water infiltrated the pre-existing brick and mortar through cracks in the new concrete. In these conditions the water has migrated in the pre-existing brick mortar and causing the mortar to RC1/6587538.1/DCC ~ 16 - Rese ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’ IDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco become brittle and non-bonded as it supports the brick. This condition is also found on the exterior south and north walls and on the property line walls running east and west Water infiltration into the mortar and brick has in numerous locations caused the brick to spall and to de- bond at the mortar joint As a result repair at these conditions will be required for further installation of the interior structural and non-structural concrete or remediated concrete where damaged.” (Reeves Decl., p. 8, Ins. 3-10.) Grounds for Objection No. 20: This statement lacks foundation, is speculative, and is inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) The declarant fails to lay any foundation for an alleged expertise that would enable him to render expert opinions regarding the presence or absence of construction defects related to concrete, shotcrete and/or rebar, and causation relating to alleged construction defects at the Property. The declarant also does not set forth the facts upon which he bases his assertion that CTS, which merely inspected portions of the new concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new concrete, shotcrete and rebar work regarding which he opines. Court’s Ruling on Objection No. 20: Sustained: Overruled: v OBJECTION NO. 21 “The water infiltration, occurring from the cracked concrete and voids in the concrete abutments and joints, has saturated the top plates and bottom plates of the metal stud non-bearing partition walls that completed for the interior framing. In some locations the finish process was underway, and the saturation of these galvanized sheet metal framing members caused the components to oxidize, so that they do not have the same structural capacity that they did when installed without the oxidation.” (Reeves Decl., p. 8, Ins. 11-16.) Grounds for Objection No. 21: This statement lacks foundation, is speculative, and is inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) The declarant fails to lay any foundation for an alleged expertise that would enable him to render expert opinions regarding the presence or absence of construction defects related to concrete, shotcrete and/or rebar, and causation relating to alleged construction defects at the Property. The declarant also does not set RC1/6587538,/DCC -17- }| ORDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS? ENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco forth the facts upon which he bases his assertion that CTS, which merely inspected portions of the new concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new concrete, shotcrete and rebar work regarding which he opines. Court’s Ruling on Objection No. 21: Sustained: Overruled: Vv OBJECTION NO. 22 “As noted above, CTS was acting as a ‘special inspector’ on behalf of the San Francisco Department of Building Inspection, This means CTS’ activities were in lieu of the City and County of San Francisco building inspector who depended on CTS’ reports to accurately report the activities at a construction site. In other words, instead of a City Inspector doing a physical on-site inspection, it relies on the special inspectors, in this case CTS, to physically inspect at the project site and accurately report its findings. Accordingly, CTS was required to and, in fact in this case, did submit a copy of its reports to the City and County of San Francisco Department of Building Inspections. The process is that these reports become a matter of public record and are reviewed by the Building Department personnel. If a special inspector, such as CTS, reports faulty workmanship, improper workmanship, or non-compliance with the plans and/or codes, then the City and County of San Francisco will immediately act thereon and issue a "stop work order" for the project. Thus, in the instant case, CTS’ failure to have promptly informed the City of the above-described improper concrete rebar workmanship at the subject site resulted in the City not being aware of the defective workmanship and further not issuing a stop work order as it would have in the normal course of its oversight.” (Reeves Decl., p. 8, In. 17 to p. 9, In. 5.) Grounds for Objection No. 22: This statement lacks foundation, is speculative, and is inadmissible expert opinion. (Cal. Evid. Code §§ 403, 702(a), 720(a).) The declarant fails to lay any foundation for an alleged expertise that would enable him to render expert opinions regarding the duties of a special inspector for concrete, shotcrete and rebar, the presence or absence of construction defects related to concrete, shotcrete and/or rebar, and the relationship between a special inspector and the San Francisco Department of Building Inspection. The declarant also does not set forth the facts upon which he bases his assertion that CTS, which merely inspected RC16587538.1/DCC -18- IRDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’ "EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco io we ND 10 ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 portions of the new concrete, shotcrete and rebar work at the Property, had an obligation to inspect the new concrete, shotcrete and rebar work he contends was defective. Finally, the declarant does not set forth the facts upon which he bases his assertions regarding the knowledge, thoughts and hypothetical actions of persons employed by the San Francisco Department of Building Inspection. Court’s Ruling on Objection No. 22: Sustained: Overruled: pace pre Flo Tanln Swdla JUDGE OF THE SUPERIOR COURT MARLA JM: RC1/6587538.1/DCC -19- IRDER ON CONSTRUCTION TESTING SERVICES, INC.’S OBJECTIONS TO PERFORMING ARTS’ EVIDENCE OFFERED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT