Preview
UIA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Aug-10-2012 2:31 pm
Case Number: CGC-10-498405
Filing Date: Aug-10-2012 2:30
Filed by: RAYMOND K. WONG
Juke Box: 001 Image: 03720940
OPPOSITION
PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al
001C03720940
Instructions:
Please place this sheet on top of the document to be scanned.Jeffrey H. Lowenthal (State Bar No. 111763)
Edward Egan Smith (State Bar No. 169792)
STEYER LOWENTHAL BOODROOKAS F I L E D
ALVAREZ & SMITH LLP San Francisco County Superior Court
One California Street, Third Floor
San Francisco, California 94111 AUG 10 2012
Telephone: (415) 421-3400
Facsimile: (415) 421-2234 Cte OF j He COURT
BY:
Gary A. Angel (State Bar No. 70006) Depily Clerk
Frear Stephen Schmid (State Bar No. 96089)
Law Offices of Gary A. Angel
177 Post Street, Eight Floor
San Francisco, CA 94108
Telephone: (415) 788-5935
Facsimile: (415) 788-5958
Attorneys for Plaintiff and Cross-Defendant
PERFORMING ARTS, LLC
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PERFORMING ARTS, LLC, a Delaware Case No.: CGC-10-498405
limited liability company,
Plaintiff, PLAINTIFF PERFORMING ARTS, LLC'S
OPPOSITION SEPARATE
vs. STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS
KILLARNEY CONSTRUCTION CO., INC., | OPPOSITION TO THE MOTION FOR
MID-MARKET DEVELOPMENT CO., SUMMARY JUDGMENT OF
INC., CARDINAL CONSULTING INC., DEFENDANT CONSTRUCTION
CULLINANE CONSTRUCTION, AL TESTING SERVICES, INC.
NORMAN MECHANICAL, INC.,
MICHAEL MURRAY, CONSTRUCTION Date: August 24, 2012
TESTING SERVICES, and DOES 1 Time: 9:30 a.m.
THROUGH 200, inclusive, Dept: 302
Defendants.
Complaint Filed: April 7, 2010
TRIAL DATE: FEBRUARY 4, 2013
AND RELATED CROSS-ACTIONS.
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF]
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.
S:\Granite\973 Market-Killamey\Summary Judgment - Card.Cts\Ssuf.Cts V.2.Doe27
28
Plaintiff PERFORMING ARTS, LLC hereby submits its opposition separate statement o’
undisputed material facts in support of its opposition to the motion for summary judgment of
defendant CONSTRUCTION TESTING SERVICES, INC., as follows:
A Issue No. 1: Plaintiff's First Cause of Action for Negligence is Barred as to CTS by
the Economic Loss Rule.
UNDISPUTED MATERIAL FACTS AND
SUPPORTING EVIDENCE
OPPOSING PARTY’S RESPONSE
AND SUPPORT EVIDENCE
On August 3, 2007, the owner of the real
property located at 973 Market Street, San
Francisco, California (the “Property”), 973
Market Street Associates, LLC (“973
Market”), took out a $20 million
construction loan from United Commercial
Bank (the “UCB Loan”) in order to
renovate and retrofit the Property.
(Declaration of Devin C. Courteau in
Support of Construction Testing Services,
Inc.’s Motion for Summary Judgment
(“Courteau Decl.”), Ex. B at p. 1; Request
for Judicial Notice in Support of
Construction Testing Services, Inc.’s
Motion for Summary Judgment (“RJN”), re
Courteau Decl. Ex. A at §f 1.)
1. Undisputed, however, the attorney
Courteau declaration lacks foundation.
That UCB Loan was secured by a first deed
of trust on the Property. (Courteau Decl.,
Ex. D.)
2. Undisputed, however, the attorney
Courteau declaration lacks foundation.
Construction Testing Services, Inc. was
retained by general contractor for the
construction project at the Property,
MidMarket Development Co., Inc.
(“MidMarket”), to perform periodic
concrete and shotcrete special inspection
and material testing at the Property on an as
needed basis. This included periodic
inspection of limited portions of the
concrete/shotcrete reinforcement (rebar
placement) performed by other
subcontractors at the Property. (Declaration
of James E. Doyle in Support of
Construction Testing Services, Inc.’s
Motion for Summary Judgment on
Plaintiff's Complaint (“Doyle Decl.”) at {¥
3-4.)
3. Disputed in part. The standard of care
for CTS as a special inspector for the
concrete work made it responsible for
"Verify(ing) use of required design mix, . .
. Inspection of concrete and shotcrete
placement for proper application
techniques [and] . . . Inspect form work for
shape, location and dimensions of the
concrete member being formed.” (Reeves
Decl. (CTS), 98). Plaintiff's forensic
construction expert Thomas P. Reeves
further explains: “Based upon my review
of the CTS documents pertaining to said
project ... 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 _|
-l-
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT O1
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27
28
UNDISPUTED MATERIAL FACTS AND
SUPPORTING EVIDENCE
OPPOSING PARTY’S RESPONSE
AND SUPPORT EVIDENCE
the affixing and anchoring of rebar to the
existing structure and preparation of the
existing structure for adhesion of concrete.
... 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 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.” (Id.
49). 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. Ifa 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.
CTS was not retained to observe or inspect
any work performed by subcontractors to
remove existing concrete, or work on the
body or structure of the Property in order to
prepare it for placement of rebar or pouring
of concrete/shotcrete. (Doyle Decl., at § 3;
Declaration of Daryl Spieker in Support of
Construction Testing Services, Inc.’s
Motion for Summary Judgment on
Plaintiff's Complaint (“Spieker Decl.”), 4;
4. Disputed. The standard of care for CTS
as a special inspector for the concrete work
made it responsible for "Verify(ing) use of
required design mix, . . . Inspection of
concrete and shotcrete placement for proper
application techniques [and] . . . Inspect
form work for shape, location and
dimensions of the concrete member being
formed.” (Reeves Decl. (CTS), 48).
Plaintiff's forensic construction expert
Thomas P. Reeves further explains:
-2-
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF|
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27
28
UNDISPUTED MATERIAL FACTS AND
SUPPORTING EVIDENCE
OPPOSING PARTY’S RESPONSE
AND SUPPORT EVIDENCE
Construction Testing Services, Inc.’s
Motion for Summary Judgment on
Plaintiff's Complaint (“Mann Decl.”), § 4;
Declaration of Erin Salazar in Support of
Construction Testing Services, Inc.’s
Motion for Summary Judgment on
Plaintiff's Complaint (“Salazar Decl.”), J 4;
Declaration of Bill Radulovich in Support
of Construction Testing Services, Inc.’s
Motion for Summary Judgment on
Plaintiff's Complaint (“Radulovich Decl.”),
14,).)
“Based upon my review of the CTS
documents pertaining to said project...
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 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 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.” (Id.
49). 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. Ifa 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.
(id. 20).
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT O1]
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27
28
UNDISPUTED MATERIAL FACTS AND
SUPPORTING EVIDENCE
OPPOSING PARTY’S RESPONSE
AND SUPPORT EVIDENCE
5. CTS did not observe or inspect any work
performed by subcontractors to remove
existing concrete, or work on the body or
structure of the Property in order to prepare
it for placement of rebar or pouring of
concrete/shotcrete. (Doyle Decl., at § 3;
Spieker Decl., | 4; Mann Decl., § 4; Salazar
Decl., § 4; Radulovich Decl., 4 4.)
5. Disputed. The standard of care for CTS
as a special inspector for the concrete work
made it responsible for "Verify(ing) use of
required design mix, . . . Inspection of
concrete and shotcrete placement for proper
application techniques [and] . . . Inspect
form work for shape, location and
dimensions of the concrete member being
formed.” (Reeves Decl. (CTS), 8).
Plaintiff's forensic construction expert
Thomas P. Reeves further explains:
“Based upon my review of the CTS
documents pertaining to said project. . .
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 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 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.” (Id.
49). 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
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT O!
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.UNDISPUTED MATERIAL FACTS AND
SUPPORTING EVIDENCE
OPPOSING PARTY’S RESPONSE
AND SUPPORT EVIDENCE
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.
(id. 20).
Reeves concludes that CTS’s performance
here fell well below these standards on
numerous fronts:
. “By CTS’ failure to properly and
adequately report the defective manner the
concrete and rebar was executed at the site,
CTS[] 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. ” (Id. 10).
“CTS failed to report on .
inadequate spacing and dimensions of the
rebar used,” which “contributed to and
resulted in the aforementioned structural
damages . . . and water infiltration and
damage to the existing structure.” (Id.
qi.
. “The structural components were
designed with specific reinforcing bar
requirements. The as built conditions show
different installations than required under
the structural design permits. . . 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.” (Id. 12).
. “Additional problems with the steel
reinforcing include the lack or omission of
steel reinforcing required by the structural
design... . [T]he improperly reinforced
concrete stressed the pre-existing concrete
and some new concrete, causing cracks and
or deformati cone:
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF,
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27
28
UNDISPUTED MATERIAL FACTS AND
OPPOSING PARTY’S RESPONSE
SUPPORTING EVIDENCE AND SUPPORT EVIDENCE
completed condition.” (Id. 13).
. “Water testing . . . 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. .... Water infiltrated
the 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 become
brittle and non bonded as it supports the
brick. ... 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.” (Id.
4917, 18, 19).
6. Work at the Property to remove existing
concrete, or work on the body or structure
of the Property in order to prepare it for
placement of rebar or pouring of
concrete/shotcrete, was performed by
subcontractors other than CTS, performed
prior to CTS’ inspections of the placement
of rebar or pouring of concrete/shotcrete,
and was outside the scope of CTS’ special
inspections. (Doyle Decl., at § 3; Spieker
Decl., 14; Mann Decl., { 4; Salazar Decl., J
4; Radulovich Decl., 4.)
6. Disputed. The standard of care for CTS
as a special inspector for the concrete work
made it responsible for "Verify(ing) use of
required design mix, . . . Inspection of
concrete and shotcrete placement for proper
application techniques [and] . . . Inspect
form work for shape, location and
dimensions of the concrete member being
formed.” (Reeves Decl. (CTS), §8).
Plaintiff's forensic construction expert
Thomas P. Reeves further explains:
“Based upon my review of the CTS
documents pertaining to said project...
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
isti dhesi: cr’
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF|
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27
28
UNDISPUTED MATERIAL FACTS AND
SUPPORTING EVIDENCE
OPPOSING PARTY’S RESPONSE
AND SUPPORT EVIDENCE
... 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 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.” (Id.
49). 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. Ifa 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.
(id. 20).
Reeves concludes that CTS’s performance
here fell well below these standards on
numerous fronts:
. “By CTS’ failure to properly and
adequately report the defective manner the
concrete and rebar was executed at the site,
CTS[] 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
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT O}
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.UNDISPUTED MATERIAL FACTS AND
SUPPORTING EVIDENCE
OPPOSING PARTY’S RESPONSE
AND SUPPORT EVIDENCE
the pre-existing structural parts of the
building.” (Id. $10).
° “CTS failed to report on...
inadequate spacing and dimensions of the
rebar used,” which “contributed to and
resulted in the aforementioned structural
damages . . . and water infiltration and
damage to the existing structure.” (Id.
qb.
° “The structural components were
designed with specific reinforcing bar
requirements. The as built conditions show
different installations than required under
the structural design permits. . . 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.” (Id. 912).
. “Additional problems with the steel
reinforcing include the lack or omission of
steel reinforcing required by the structural
design. . . . [T]he improperly reinforced
concrete stressed the pre-existing concrete
and some new concrete, causing cracks and
or deformation of the concrete in its
completed condition.” (Id. 413).
“Water testing . . . 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. .... Water infiltrated
the 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 become
brittle and non bonded as it supports the
brick. .. . The water infiltration, occurring
from the cracked concrete and voids in the
concrete abutments and joints has saturated
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT O}
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27
28
UNDISPUTED MATERIAL FACTS AND
SUPPORTING EVIDENCE
OPPOSING PARTY’S RESPONSE
AND SUPPORT EVIDENCE
the top plates and bottom plates of the
metal stud non-bearing partition walls that
completed for the interior framing.” (Id.
4917, 18, 19).
Nor did CTS personnel observe the pouring
of concrete into pre-existing piping and/or
plumbing in the Property. (Doyle Decl., at
47; Spieker Decl., 5; Mann Decl., 4 5;
Salazar Decl., § 5; Radulovich Decl., § 5.)
7. Disputed to the extent this “fact”
purports as phrased to incorporate fact nos.
4-7, above.
The standard of care for CTS as a special
inspector for the concrete work made it
responsible for "Verify(ing) use of required
design mix, . . . Inspection of concrete and
shotcrete placement for proper application
techniques [and] . . . Inspect form work for
shape, location and dimensions of the
concrete member being formed.” (Reeves
Decl. (CTS), 98). Plaintiff's forensic
construction expert Thomas P. Reeves
further explains: “Based upon my review
of the CTS documents pertaining to said
project . .. 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 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 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.” (Id.
49). 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
-9-
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT O
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27
28
UNDISPUTED MATERIAL FACTS AND
SUPPORTING EVIDENCE
OPPOSING PARTY’S RESPONSE
AND SUPPORT EVIDENCE
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. Ifa 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.
(Id. 20).
Reeves concludes that CTS’s performance
here fell well below these standards on
numerous fronts:
. “By CTS’ failure to properly and
adequately report the defective manner the
concrete and rebar was executed at the site,
CTS[] 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.” (Id. 910).
. “CTS failed to report on...
inadequate spacing and dimensions of the
rebar used,” which “contributed to and
resulted in the aforementioned structural
damages . . . and water infiltration and
damage to the existing structure.” (Id.
ql).
. “The structural components were
designed with specific reinforcing bar
requirements. The as built conditions show
different installations than required under
the structural design permits. . . 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.” (Id. 12).
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.UNDISPUTED MATERIAL FACTS AND
SUPPORTING EVIDENCE
OPPOSING PARTY’S RESPONSE
AND SUPPORT EVIDENCE
. “Additional problems with the steel
reinforcing include the lack or omission of
steel reinforcing required by the structural
design. .. . [T]he improperly reinforced
concrete stressed the pre-existing concrete
and some new concrete, causing cracks and
or deformation of the concrete in its
completed condition.” (Id. 13).
. “Water testing . . . 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... . . Water infiltrated
the 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 become
brittle and non bonded as it supports the
brick. . .. 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.” (Id.
4917, 18, 19).
On March 19, 2008, 973 Market halted
construction activity at the Property, and
CTS never observed or inspected any work
at the Property after November 5, 2007.
(Courteau Decl., Ex. E; Doyle Decl. at § 5.)
8. Disputed.
(Reeves Decl. (CTS), 98).
On August 21, 2008, 973 Market became
estranged with MidMarket and terminated it
as general contractor at the Property.
(Courteau Decl., Ex. F.)
9. Disputed to the extent the cited attomey
declaration of Courteau is without
foundation and immaterial.
. On June 25, 2009, Plaintiff acquired the
UCB Loan and deed of trust for the
Property through a Loan Purchase
Agreement with United Commercial Bank
“UCB” ich Plainti
10. Disputed in part and to the extent the
cited attorney declaration of Courteau is
without foundation. On June 25, 2009,
Plaintiff purchased from UCB all of UCB’s
right, title and interest in and to the
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF|
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.UNDISPUTED MATERIAL FACTS AND
SUPPORTING EVIDENCE
OPPOSING PARTY’S RESPONSE
AND SUPPORT EVIDENCE
$3.5 million. (Courteau Decl., Ex. G at §
3(vii),)
Construction Loan for $3.5 million under
the terms of a written Loan Purchase
Agreement. As part of Plaintiffs purchase,
UCB endorsed the $20,000,000 Promissory
Note over to Plaintiff and assigned the
Construction Deed of Trust to Plaintiff
pursuant to a Corporation Assignment of
Deed of Trust recorded June 25, 2009,
together with the balance of the Loan
Assets under the Construction Loan
Agreement, “including without limitation
causes of action and damages for breach of
contract, fraud, concealment, construction
defects or other torts.”
(Cassidy Decl., {{]4-5; Cassidy Ex. 1, at 3;
Cassidy Ex. 4, 914.1, at 22; Cassidy Exs. 5-
6).
11. On March 9, 2010, Plaintiff took title to the
Property through a $100,000 bid at a
Trustee Sale. (Courteau Decl., Ex. H.)
12. Disputed in part and to the extent the
cited attorney declaration of Courteau is
without foundation. Plaintiff was the high
bidder at the trustee’s sale and purchased
the Property with a credit bid of $100,000,
taking title to the Property under a
Trustee’s Deed Upon Sale recorded March
9, 2010.
(Cassidy Decl., 46; Cassidy Ex. 7).
12. The only cause of action asserted by
Plaintiff against CTS is for negligence, and
Plaintiff's complaint does not assert any
claim for personal injury. (RJN re Courteau
Decl. Ex. A.)
12. Undisputed.
13. CTS’ Special Interrogatory No. 38 to
Plaintiff requests that Plaintiff describe “any
and all property damage, caused by the
construction defects that are the subject of
[Plaintiffs] complaint in this action, for
which [Plaintiff] contend[s] CTS is liable.”
(Courteau Decl., Ex. J at Special
Interrogatory No. 38.)
13. Undisputed that the quoted phrase is
contained in the referenced discovery,
however, immaterial.
14. Plaintiff's Response to CTS’ Special
Interrogatory No. 38 states the following:
“The concrete work, including the rebar
installation as an integral part of said
ete work, i i
ance
14. Undisputed that the quoted phrase is
contained in the referenced discovery.
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF}
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27
28
UNDISPUTED MATERIAL FACTS AND
SUPPORTING EVIDENCE
OPPOSING PARTY’S RESPONSE
AND SUPPORT EVIDENCE
with the approved City plans, including
faulty layout and insertion of rebar into
pre-existing physical structure, insufficient
diameter rebar, insufficient number of
rebar, improper placement of doweling
rebar, improper thickness of concrete, and
improper placement of concrete and
removal of pre-existing concrete. All of
this concrete work has caused structural
and physical damage to the building by
causing physical insertion of holes in the
preexisting building, removal of pre-
existing steel and concrete structural
elements of the building, thereby rendering
the building physically uninhabitable and
in violation of the approved plans and
building codes. Simply stated, the building
has been physically injured with holes
having been bored throughout the building
into the pre-existing structure, structural
members have been removed from the
building, and concrete has been affixed to
the pre-existing structure thereby
physically damaged to the surface walls of
the pre-existing structure and causing
physical stress loads to the pre-existing
structure that are not safe, and in violation
of the building code. In sum, the building
is no longer structurally sound. Also,
concrete was poured into pre-existing
piping in the building resulting in further
physical damage to the existing plumbing.”
(Courteau Decl., Ex. K at Response to
Special Interrogatory No. 38.)
15.
CTS’ Special Interrogatory No. 39 to
Plaintiff requests “[f]or each element of
property damage identified in [Plaintiff's]
response to Special Interrogatory No. 38,
state all facts supporting [Plaintiffs]
contention that CTS is liable for that
property damage.” (Courteau Decl., Ex. J
at Special Interrogatory No. 39.)
15. Undisputed that the quoted phrase is
contained in the referenced discovery,
however, immaterial.
16,
Plaintiff's Response to CTS’ Special
Interrogatory No. 39 states, in pertinent
part, the following:
“CTS was engaged in and in fact performed
inspection services with reference to rebar
and concrete work done at the site... .
i reports is a
16. Undisputed that the quoted phrase is
contained in the referenced discovery.
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF|
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27
28
UNDISPUTED MATERIAL FACTS AND OPPOSING PARTY’S RESPONSE
SUPPORTING EVIDENCE AND SUPPORT EVIDENCE
finding of fault or wrongful conduct made
with reference to the layout of rebar, size of
rebar, placement of rebar and the placement
layout and thickness of concrete. In view
of the wrongful layout as set forth in the
above response to special interrogatory no.
28, wrongful thickness, non-compliance
with the plans and non-compliance with
general construction practices and
applicable building codes, CTS is liable for
its negligent inspection, liable for its breach
of its contract with reference to the
inspection.”
(Courteau Decl., Ex. K at Response to
Special Interrogatory No. 39.)
DATED: August 0, 2012 STEYER LOWENTHAL BOODROOKAS
ALVAI SMITH LLP
By:
Jeffrey H. Lowenthal
Edward Egan Smith
Attorneys for Plaintiff and Cross-Defendant
PERFORMING ARTS, LLC
-14-
PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF]
DEFENDANT CONSTRUCTION TESTING SERVICES, INC.
Preview
UIA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Aug-10-2012 2:31 pm Case Number: CGC-10-498405 Filing Date: Aug-10-2012 2:30 Filed by: RAYMOND K. WONG Juke Box: 001 Image: 03720940 OPPOSITION PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al 001C03720940 Instructions: Please place this sheet on top of the document to be scanned.Jeffrey H. Lowenthal (State Bar No. 111763) Edward Egan Smith (State Bar No. 169792) STEYER LOWENTHAL BOODROOKAS F I L E D ALVAREZ & SMITH LLP San Francisco County Superior Court One California Street, Third Floor San Francisco, California 94111 AUG 10 2012 Telephone: (415) 421-3400 Facsimile: (415) 421-2234 Cte OF j He COURT BY: Gary A. Angel (State Bar No. 70006) Depily Clerk Frear Stephen Schmid (State Bar No. 96089) Law Offices of Gary A. Angel 177 Post Street, Eight Floor San Francisco, CA 94108 Telephone: (415) 788-5935 Facsimile: (415) 788-5958 Attorneys for Plaintiff and Cross-Defendant PERFORMING ARTS, LLC IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PERFORMING ARTS, LLC, a Delaware Case No.: CGC-10-498405 limited liability company, Plaintiff, PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE vs. STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS KILLARNEY CONSTRUCTION CO., INC., | OPPOSITION TO THE MOTION FOR MID-MARKET DEVELOPMENT CO., SUMMARY JUDGMENT OF INC., CARDINAL CONSULTING INC., DEFENDANT CONSTRUCTION CULLINANE CONSTRUCTION, AL TESTING SERVICES, INC. NORMAN MECHANICAL, INC., MICHAEL MURRAY, CONSTRUCTION Date: August 24, 2012 TESTING SERVICES, and DOES 1 Time: 9:30 a.m. THROUGH 200, inclusive, Dept: 302 Defendants. Complaint Filed: April 7, 2010 TRIAL DATE: FEBRUARY 4, 2013 AND RELATED CROSS-ACTIONS. PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF] DEFENDANT CONSTRUCTION TESTING SERVICES, INC. S:\Granite\973 Market-Killamey\Summary Judgment - Card.Cts\Ssuf.Cts V.2.Doe27 28 Plaintiff PERFORMING ARTS, LLC hereby submits its opposition separate statement o’ undisputed material facts in support of its opposition to the motion for summary judgment of defendant CONSTRUCTION TESTING SERVICES, INC., as follows: A Issue No. 1: Plaintiff's First Cause of Action for Negligence is Barred as to CTS by the Economic Loss Rule. UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE AND SUPPORT EVIDENCE On August 3, 2007, the owner of the real property located at 973 Market Street, San Francisco, California (the “Property”), 973 Market Street Associates, LLC (“973 Market”), took out a $20 million construction loan from United Commercial Bank (the “UCB Loan”) in order to renovate and retrofit the Property. (Declaration of Devin C. Courteau in Support of Construction Testing Services, Inc.’s Motion for Summary Judgment (“Courteau Decl.”), Ex. B at p. 1; Request for Judicial Notice in Support of Construction Testing Services, Inc.’s Motion for Summary Judgment (“RJN”), re Courteau Decl. Ex. A at §f 1.) 1. Undisputed, however, the attorney Courteau declaration lacks foundation. That UCB Loan was secured by a first deed of trust on the Property. (Courteau Decl., Ex. D.) 2. Undisputed, however, the attorney Courteau declaration lacks foundation. Construction Testing Services, Inc. was retained by general contractor for the construction project at the Property, MidMarket Development Co., Inc. (“MidMarket”), to perform periodic concrete and shotcrete special inspection and material testing at the Property on an as needed basis. This included periodic inspection of limited portions of the concrete/shotcrete reinforcement (rebar placement) performed by other subcontractors at the Property. (Declaration of James E. Doyle in Support of Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's Complaint (“Doyle Decl.”) at {¥ 3-4.) 3. Disputed in part. The standard of care for CTS as a special inspector for the concrete work made it responsible for "Verify(ing) use of required design mix, . . . Inspection of concrete and shotcrete placement for proper application techniques [and] . . . Inspect form work for shape, location and dimensions of the concrete member being formed.” (Reeves Decl. (CTS), 98). Plaintiff's forensic construction expert Thomas P. Reeves further explains: “Based upon my review of the CTS documents pertaining to said project ... 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 _| -l- PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT O1 DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27 28 UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE AND SUPPORT EVIDENCE the affixing and anchoring of rebar to the existing structure and preparation of the existing structure for adhesion of concrete. ... 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 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.” (Id. 49). 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. Ifa 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. CTS was not retained to observe or inspect any work performed by subcontractors to remove existing concrete, or work on the body or structure of the Property in order to prepare it for placement of rebar or pouring of concrete/shotcrete. (Doyle Decl., at § 3; Declaration of Daryl Spieker in Support of Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's Complaint (“Spieker Decl.”), 4; 4. Disputed. The standard of care for CTS as a special inspector for the concrete work made it responsible for "Verify(ing) use of required design mix, . . . Inspection of concrete and shotcrete placement for proper application techniques [and] . . . Inspect form work for shape, location and dimensions of the concrete member being formed.” (Reeves Decl. (CTS), 48). Plaintiff's forensic construction expert Thomas P. Reeves further explains: -2- PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF| DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27 28 UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE AND SUPPORT EVIDENCE Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's Complaint (“Mann Decl.”), § 4; Declaration of Erin Salazar in Support of Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's Complaint (“Salazar Decl.”), J 4; Declaration of Bill Radulovich in Support of Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's Complaint (“Radulovich Decl.”), 14,).) “Based upon my review of the CTS documents pertaining to said project... 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 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 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.” (Id. 49). 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. Ifa 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. (id. 20). PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT O1] DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27 28 UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE AND SUPPORT EVIDENCE 5. CTS did not observe or inspect any work performed by subcontractors to remove existing concrete, or work on the body or structure of the Property in order to prepare it for placement of rebar or pouring of concrete/shotcrete. (Doyle Decl., at § 3; Spieker Decl., | 4; Mann Decl., § 4; Salazar Decl., § 4; Radulovich Decl., 4 4.) 5. Disputed. The standard of care for CTS as a special inspector for the concrete work made it responsible for "Verify(ing) use of required design mix, . . . Inspection of concrete and shotcrete placement for proper application techniques [and] . . . Inspect form work for shape, location and dimensions of the concrete member being formed.” (Reeves Decl. (CTS), 8). Plaintiff's forensic construction expert Thomas P. Reeves further explains: “Based upon my review of the CTS documents pertaining to said project. . . 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 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 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.” (Id. 49). 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 PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT O! DEFENDANT CONSTRUCTION TESTING SERVICES, INC.UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE AND SUPPORT EVIDENCE 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. (id. 20). Reeves concludes that CTS’s performance here fell well below these standards on numerous fronts: . “By CTS’ failure to properly and adequately report the defective manner the concrete and rebar was executed at the site, CTS[] 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. ” (Id. 10). “CTS failed to report on . inadequate spacing and dimensions of the rebar used,” which “contributed to and resulted in the aforementioned structural damages . . . and water infiltration and damage to the existing structure.” (Id. qi. . “The structural components were designed with specific reinforcing bar requirements. The as built conditions show different installations than required under the structural design permits. . . 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.” (Id. 12). . “Additional problems with the steel reinforcing include the lack or omission of steel reinforcing required by the structural design... . [T]he improperly reinforced concrete stressed the pre-existing concrete and some new concrete, causing cracks and or deformati cone: PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF, DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27 28 UNDISPUTED MATERIAL FACTS AND OPPOSING PARTY’S RESPONSE SUPPORTING EVIDENCE AND SUPPORT EVIDENCE completed condition.” (Id. 13). . “Water testing . . . 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. .... Water infiltrated the 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 become brittle and non bonded as it supports the brick. ... 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.” (Id. 4917, 18, 19). 6. Work at the Property to remove existing concrete, or work on the body or structure of the Property in order to prepare it for placement of rebar or pouring of concrete/shotcrete, was performed by subcontractors other than CTS, performed prior to CTS’ inspections of the placement of rebar or pouring of concrete/shotcrete, and was outside the scope of CTS’ special inspections. (Doyle Decl., at § 3; Spieker Decl., 14; Mann Decl., { 4; Salazar Decl., J 4; Radulovich Decl., 4.) 6. Disputed. The standard of care for CTS as a special inspector for the concrete work made it responsible for "Verify(ing) use of required design mix, . . . Inspection of concrete and shotcrete placement for proper application techniques [and] . . . Inspect form work for shape, location and dimensions of the concrete member being formed.” (Reeves Decl. (CTS), §8). Plaintiff's forensic construction expert Thomas P. Reeves further explains: “Based upon my review of the CTS documents pertaining to said project... 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 isti dhesi: cr’ PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF| DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27 28 UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE AND SUPPORT EVIDENCE ... 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 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.” (Id. 49). 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. Ifa 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. (id. 20). Reeves concludes that CTS’s performance here fell well below these standards on numerous fronts: . “By CTS’ failure to properly and adequately report the defective manner the concrete and rebar was executed at the site, CTS[] 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 PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT O} DEFENDANT CONSTRUCTION TESTING SERVICES, INC.UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE AND SUPPORT EVIDENCE the pre-existing structural parts of the building.” (Id. $10). ° “CTS failed to report on... inadequate spacing and dimensions of the rebar used,” which “contributed to and resulted in the aforementioned structural damages . . . and water infiltration and damage to the existing structure.” (Id. qb. ° “The structural components were designed with specific reinforcing bar requirements. The as built conditions show different installations than required under the structural design permits. . . 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.” (Id. 912). . “Additional problems with the steel reinforcing include the lack or omission of steel reinforcing required by the structural design. . . . [T]he improperly reinforced concrete stressed the pre-existing concrete and some new concrete, causing cracks and or deformation of the concrete in its completed condition.” (Id. 413). “Water testing . . . 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. .... Water infiltrated the 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 become brittle and non bonded as it supports the brick. .. . The water infiltration, occurring from the cracked concrete and voids in the concrete abutments and joints has saturated PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT O} DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27 28 UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE AND SUPPORT EVIDENCE the top plates and bottom plates of the metal stud non-bearing partition walls that completed for the interior framing.” (Id. 4917, 18, 19). Nor did CTS personnel observe the pouring of concrete into pre-existing piping and/or plumbing in the Property. (Doyle Decl., at 47; Spieker Decl., 5; Mann Decl., 4 5; Salazar Decl., § 5; Radulovich Decl., § 5.) 7. Disputed to the extent this “fact” purports as phrased to incorporate fact nos. 4-7, above. The standard of care for CTS as a special inspector for the concrete work made it responsible for "Verify(ing) use of required design mix, . . . Inspection of concrete and shotcrete placement for proper application techniques [and] . . . Inspect form work for shape, location and dimensions of the concrete member being formed.” (Reeves Decl. (CTS), 98). Plaintiff's forensic construction expert Thomas P. Reeves further explains: “Based upon my review of the CTS documents pertaining to said project . .. 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 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 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.” (Id. 49). 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 -9- PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT O DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27 28 UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE AND SUPPORT EVIDENCE 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. Ifa 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. (Id. 20). Reeves concludes that CTS’s performance here fell well below these standards on numerous fronts: . “By CTS’ failure to properly and adequately report the defective manner the concrete and rebar was executed at the site, CTS[] 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.” (Id. 910). . “CTS failed to report on... inadequate spacing and dimensions of the rebar used,” which “contributed to and resulted in the aforementioned structural damages . . . and water infiltration and damage to the existing structure.” (Id. ql). . “The structural components were designed with specific reinforcing bar requirements. The as built conditions show different installations than required under the structural design permits. . . 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.” (Id. 12). PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT DEFENDANT CONSTRUCTION TESTING SERVICES, INC.UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE AND SUPPORT EVIDENCE . “Additional problems with the steel reinforcing include the lack or omission of steel reinforcing required by the structural design. .. . [T]he improperly reinforced concrete stressed the pre-existing concrete and some new concrete, causing cracks and or deformation of the concrete in its completed condition.” (Id. 13). . “Water testing . . . 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... . . Water infiltrated the 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 become brittle and non bonded as it supports the brick. . .. 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.” (Id. 4917, 18, 19). On March 19, 2008, 973 Market halted construction activity at the Property, and CTS never observed or inspected any work at the Property after November 5, 2007. (Courteau Decl., Ex. E; Doyle Decl. at § 5.) 8. Disputed. (Reeves Decl. (CTS), 98). On August 21, 2008, 973 Market became estranged with MidMarket and terminated it as general contractor at the Property. (Courteau Decl., Ex. F.) 9. Disputed to the extent the cited attomey declaration of Courteau is without foundation and immaterial. . On June 25, 2009, Plaintiff acquired the UCB Loan and deed of trust for the Property through a Loan Purchase Agreement with United Commercial Bank “UCB” ich Plainti 10. Disputed in part and to the extent the cited attorney declaration of Courteau is without foundation. On June 25, 2009, Plaintiff purchased from UCB all of UCB’s right, title and interest in and to the PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF| DEFENDANT CONSTRUCTION TESTING SERVICES, INC.UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE AND SUPPORT EVIDENCE $3.5 million. (Courteau Decl., Ex. G at § 3(vii),) Construction Loan for $3.5 million under the terms of a written Loan Purchase Agreement. As part of Plaintiffs purchase, UCB endorsed the $20,000,000 Promissory Note over to Plaintiff and assigned the Construction Deed of Trust to Plaintiff pursuant to a Corporation Assignment of Deed of Trust recorded June 25, 2009, together with the balance of the Loan Assets under the Construction Loan Agreement, “including without limitation causes of action and damages for breach of contract, fraud, concealment, construction defects or other torts.” (Cassidy Decl., {{]4-5; Cassidy Ex. 1, at 3; Cassidy Ex. 4, 914.1, at 22; Cassidy Exs. 5- 6). 11. On March 9, 2010, Plaintiff took title to the Property through a $100,000 bid at a Trustee Sale. (Courteau Decl., Ex. H.) 12. Disputed in part and to the extent the cited attorney declaration of Courteau is without foundation. Plaintiff was the high bidder at the trustee’s sale and purchased the Property with a credit bid of $100,000, taking title to the Property under a Trustee’s Deed Upon Sale recorded March 9, 2010. (Cassidy Decl., 46; Cassidy Ex. 7). 12. The only cause of action asserted by Plaintiff against CTS is for negligence, and Plaintiff's complaint does not assert any claim for personal injury. (RJN re Courteau Decl. Ex. A.) 12. Undisputed. 13. CTS’ Special Interrogatory No. 38 to Plaintiff requests that Plaintiff describe “any and all property damage, caused by the construction defects that are the subject of [Plaintiffs] complaint in this action, for which [Plaintiff] contend[s] CTS is liable.” (Courteau Decl., Ex. J at Special Interrogatory No. 38.) 13. Undisputed that the quoted phrase is contained in the referenced discovery, however, immaterial. 14. Plaintiff's Response to CTS’ Special Interrogatory No. 38 states the following: “The concrete work, including the rebar installation as an integral part of said ete work, i i ance 14. Undisputed that the quoted phrase is contained in the referenced discovery. PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF} DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27 28 UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE OPPOSING PARTY’S RESPONSE AND SUPPORT EVIDENCE with the approved City plans, including faulty layout and insertion of rebar into pre-existing physical structure, insufficient diameter rebar, insufficient number of rebar, improper placement of doweling rebar, improper thickness of concrete, and improper placement of concrete and removal of pre-existing concrete. All of this concrete work has caused structural and physical damage to the building by causing physical insertion of holes in the preexisting building, removal of pre- existing steel and concrete structural elements of the building, thereby rendering the building physically uninhabitable and in violation of the approved plans and building codes. Simply stated, the building has been physically injured with holes having been bored throughout the building into the pre-existing structure, structural members have been removed from the building, and concrete has been affixed to the pre-existing structure thereby physically damaged to the surface walls of the pre-existing structure and causing physical stress loads to the pre-existing structure that are not safe, and in violation of the building code. In sum, the building is no longer structurally sound. Also, concrete was poured into pre-existing piping in the building resulting in further physical damage to the existing plumbing.” (Courteau Decl., Ex. K at Response to Special Interrogatory No. 38.) 15. CTS’ Special Interrogatory No. 39 to Plaintiff requests “[f]or each element of property damage identified in [Plaintiff's] response to Special Interrogatory No. 38, state all facts supporting [Plaintiffs] contention that CTS is liable for that property damage.” (Courteau Decl., Ex. J at Special Interrogatory No. 39.) 15. Undisputed that the quoted phrase is contained in the referenced discovery, however, immaterial. 16, Plaintiff's Response to CTS’ Special Interrogatory No. 39 states, in pertinent part, the following: “CTS was engaged in and in fact performed inspection services with reference to rebar and concrete work done at the site... . i reports is a 16. Undisputed that the quoted phrase is contained in the referenced discovery. PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF| DEFENDANT CONSTRUCTION TESTING SERVICES, INC.27 28 UNDISPUTED MATERIAL FACTS AND OPPOSING PARTY’S RESPONSE SUPPORTING EVIDENCE AND SUPPORT EVIDENCE finding of fault or wrongful conduct made with reference to the layout of rebar, size of rebar, placement of rebar and the placement layout and thickness of concrete. In view of the wrongful layout as set forth in the above response to special interrogatory no. 28, wrongful thickness, non-compliance with the plans and non-compliance with general construction practices and applicable building codes, CTS is liable for its negligent inspection, liable for its breach of its contract with reference to the inspection.” (Courteau Decl., Ex. K at Response to Special Interrogatory No. 39.) DATED: August 0, 2012 STEYER LOWENTHAL BOODROOKAS ALVAI SMITH LLP By: Jeffrey H. Lowenthal Edward Egan Smith Attorneys for Plaintiff and Cross-Defendant PERFORMING ARTS, LLC -14- PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF] DEFENDANT CONSTRUCTION TESTING SERVICES, INC.