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AOA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jul-20-2012 9:48 am
Case Number: CGC-10-498405
Filing Date: Jul-20-2012 9:48
Filed by: RONNIE OTERO
Juke Box: 001 Image: 03693319
OPPOSITION
L__
PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al
001003693319
Instructions:
Please place this sheet on top of the document to be scanned.=
o ON DOD oO FF WO DY
GARY A. ANGEL, CSB No. 70006
FREAR STEPHEN SCHMID, CSB No. 96089
LAW OFFICES OF GARY A. ANGEL
177 POST STREET, EIGHTH FLOOR
SAN FRANCISCO, CA 94108
TELEPHONE: (415) 788-5935
FACSIMILE: (415) 788-5958
JEFFREY H. LOWENTHAL, CSB No.111763
STEYER ENT AL BOODR ROOKAS
ALVAREZ & SMITH L
ONE CALIFORNIA STREET THIRD FLOOR
SAN FRANCISCO, CA 94111
TELEPHONE: (415) 421-3400
FACSIMILE: (415) 421-2234
Attorneys for Plaintiff and Cross-Defendant
PERFORMING ARTS, LLC
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PERFORMING ARTS, LLC, a Delaware No. CGC-10-498405
limited liability company,
PLAINTIFF PERFORMING ARTS,
Piaintiff, LLC’S OPPOSITION TO CROSS-
DEFENDANTS’ MOTION TO
Vv. CONTINUE THE TRIAL DATE
KILLARNEY CONSTRUCTION CO., Date: August 2, 2012
INC., MID-MARKET DEVELOPMENT Time: 9:30 AM
CO., INC., CARDINAL CONSULTING, Dept: 206
INC., CULLINANE CONSTRUCTION, Judge: Honorable Katherine Feinstein
AL NORMAN MECHANICAL, INC.,
MICHAEL MURRAY, and DOES 1 Action Filed: April 7, 2010
THROUGH 200, inclusive, Trial Date: September 24, 2012
Defendants. /
AND RELATED CROSS-ACTIONS.
This action was filed on April 7, 2010. This is the second time a continuance of a
set trial date has been sought.
Plaintiff PERFORMING ARTS, LLC objects to the cross-defendants KERMAN
MORRIS ARCHITECTS, LLP, SANTOS & URRUTIA ASSOCIATES, INC., and BODE
4
PLAINTIFF'S OPPOSITION TO CROSS-DEFENDANTS’ MOTION TO CONTINUE THE TRIAL DATE=
Co GO ON DO oO FF WwW DY
=
CONCRETE, LLC’s motions to continue the trial date. Instead, the court should simply
sever the cross-actions against them. This action was filed on April 7, 2010, and
initially set for trial on March 26, 2012. Defendants previously moved for a trial date
continuance in January 2012, which the court granted. To precipitate the prior
continuance of the first trial date, defendant CONSTRUCTION TESTING SERVICES,
INC. ("CTS") cross-complained against numerous third parties, ostensibly for
indemnification. It is these third-party cross-defendants who are now seeking a further
continuance of the trial date. Why these cross-defendants have any obligation to
indemnify CTS has never been made clear to plaintiff. The only reason that any of
these third-party cross-defendants were brought in by CTS is for causing a delay of the
trial in this matter, i.e. the subject motions to continue. Thus, there is no good cause for
a continuance of the trial of the underlying claim by plaintiff. The court should simply
sever the cross-actions filed by CTS against various cross-defendants, and the related
cross-actions between those parties from the underlying lawsuit. C.C.P. §1048(b)
provides:
“The court, in furtherance of convenience or to avoid prejudice, or when
separate trials will be conducive to expedition and economy, may order a
separate trial of any cause of action, including a cause of action asserted
in a cross-complaint, or of any separate issue or of any number of causes
of action or issues, preserving the right of trial by Jury required by the
Constitution or a statute of this state or of the United States.”
Further, C.C.P. §598 provides the court with broad discretion to provide for the orderly
conduct of proceedings before it. This case is almost two-and-a-half years old, and
long past the trial date envisioned under the Trial Court Delay Reduction Act.
Government Code §68600, et seq.. The subject motions fly in the face of the express
legislative intent to have trials heard promptly. There is absolutely no reason in law or
fact why the cross-actions against the various third-party cross-defendants need to be
maintained in this action since (1) the are specious in the first instance and (2) even if
valid, they simply seek indemnity for any damages that the defendants herein will suffer
as a result of a judgment in this matter. In short, there is no need or reason for a
2
PLAINTIFF'S OPPOSITION TO CROSS-DEFENDANTS’ MOTION TO CONTINUE THE TRIAL DATEoO ON DOD ODO BW Dw =
NNN NY DY NY NY YB HY |= Ba a sa a a an an Aan 4
oN OWA RW NH BS GOLAN DAR DOH AS
continuance of the trial date in this matter, all that needs to be done is a severance and
a continuance of the third-party cross-defendants in the cross-actions and the issues
raised by the moving parties for a continuance of the trial date will be served.
In sum, moving parties have failed to show good cause for continuance of the
trial date. The motion should be denied.
Dated: July 19, 2011 Respectfully submitted,
LAW OFFICES QF GAR’
bi
zw fen Sc , Attorrieys for
Plaintiff PERFORMING ARTS, LLC
. ANGEL
3
PLAINTIFF'S OPPOSITION TO CROSS-DEFENDANTS’ MOTION TO CONTINUE THE TRIAL DATEo ON DO OH FF Ww DH =
NNN NY NY NY NY NY BB Bw Bw Ba Ba aw an an A
on OW TO FF WH BF OGD HG AN DA BRO DH AS
Re: Performing Arts, LLC v. Killarney Construction Co., Inc., et al.
PROOF OF SERVICE
| declare that:
lam over the age of 18 and not a party to the within action; my business address
is 177 Post Street, Suite 890, San Francisco, California, 94108.
On July 19, 2012, | served the following document(s):
1. PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION TO
CROSS-DEFENDANTS' MOTION TO CONTINUE THE TRIAL DATE
on the parties in said action, by placing true copies thereof in sealed envelopes
addressed as shown below for service as designated below:
/X/ By First Class Mail - | caused each such envelope, with first-class postage
thereon fully prepaid, to be deposited in the United States mail at San Francisco,
alifornia.
// ByHand Delivery - | caused each such envelope, to be hand delivered to said
address(es).
L! ByFacsimile - By transmitting a facsimile copy of the above document(s) to the
following addressee(s) at the following facsimile number(s):
Addressee(s):
Suzanne M. Martin, Esq. Email: martin@lbbslaw.com
Jonathan G. Kepko, Esq. Email: kepko@Ibbslaw.com
LEWIS BRISBOIS BISGAARD & SMITH, LLP
One Sansome Street, Suite 1400
San Francisco, CA 94104
Tel: 415-362-2580 Fax: 415-434-0882
[Attorneys for Defendants and Cross-Defendants CULLINANE CONSTRUCTION; AL NORMAN
MECHANICAL, INC.; ASPEN INSURANCE UK, LTD Intervenor on behalf of Defendant and Cross-Defendant
KILLARNEY CONSTRUCTION CO., INC.]
Jordan A. Sussman, Esq. Email: Jordan.Sussman.Law@gmail.com
ZIEF DIMENT & GLICKMAN
109 Geary Street, 4" Floor
San Francisco, CA 94108
Tel: 415-986-3644 Fax: 415-982-5130
[Attorneys for ASPEN INSURANCE UK, LTD, Intervenor on behalf of Defendant KILLARNEY
CONSTRUCTION CO., INC.]
Todd B. Gary, Esq. Email: tgary@thegarylawfirm.com
THE GARY LAW FIRM
950 Risa Road, Second Floor
Lafayette, CA 94549
Tel: 925-831-1155 Fax: 925-831-1188
[Attorneys for Defendant and Cross-Defendant CULLINANE CONSTRUCTION]oO ON DOD OHO RB WwW DY =
Nw NN NY KH NH NNMY NY @ Bw oa an an an An An a
or ?7n BRB WON BBC HOHANDaAKR SAH AS
-~
Now
Dion N. Cominos, Esq. Email: Dcominos@gordonreese.com
Mark C. Russell, Esq. Email: Mrussell@gordonrees.com
Olivia J. Bradbury, Esq. Email: Obradbury@gordonrees.com
GORDON & REES LLP
Embarcadero Center West
275 Battery Street, Suite 2000
San Francisco, CA 94111
Tel.: 415-986-5900 Fax: 415-986-8054
[Attorneys for Defendant and Cross-Defendant CARDINAL CONSULTING, INC.]
Paul Manasian, Esq. Email: manasian@mrlawsf.com
Coque K. Dion, Esq. Email: dion@mrlawsf.com
MANASIAN & ROUGEAU, LLP
400 Montgomery Street, Suite 1000
San Francisco, CA 94104
Tel: 415-291-8425, ext. 4 Fax: 415-291-8426
[Attorneys for Defendants MICHAEL MURRAY and MID-MARKET DEVELOPMENT CO., INC.]
John G. Dooling, Esq. Email: jdooling@rmkb.com
Devin C. Courteau, Esq. Email: dcourteau@rmkb.com
ROPERS MAJESKI KOHN BENTLEY
201 Spear Street, Suite 1000
San Francisco, CA 94105-1667
Tel: 415-543-4800 Fax: 415-972-6301
[Attorneys for Defendant and X-Complainant CONSTRUCTION TESTING SERVICES, INC.]
Jeffrey H. Lowenthal, Esq. Email: jlowenthal@steyerlaw.com
STEYER LOWENTHAL BOODROOKAS
ALVAREZ & SMITH LLP
One California Street, Third Floor
San Francisco, CA 94111
Tel: 415-421-3400 Fax: 415-421-2234
[Attorneys for Plaintiff PERFORMING ARTS, LLC]
Richard K. Bauman, Esq. Email: rbauman@att.net
LAW OFFICES OF RICHARD K. BAUMAN
220 Montgomery Street, Suite 1500
San Francisco, CA 94104
Tel: 415-982-5230 Fax: 415-397-1577
[Attorneys for Cross-Defendant and Cross-Complainant SANTOS & URRUTIA ASSOCIATES, INC]
Bruce N. Furukawa, Esq. Email: bnf@severson.com
Yevgenia Altman, Esq. Email: ya@severson.com
SEVERSON & WERSON
One Embarcadero Center, Suite 2600
San Francisco, CA 94111
Tel: 415-398-3344 Fax: 415-956-0439
[Attorneys for Cross-Defendant KERMAN MORRIS ARCHITECTS, LLP]
Heidi C. Quan, Esq. Email: hguan@murchisonlaw.com
MURCHISON & CUMMING, LLP
275 Battery Street, Suite 550
San Francisco, CA 94111
Tel: 415-524-4303 Fax: 415-391-2058
[Attorneys for Cross-Defendant BODE CONCRETE LLC (sued herein as DOE 10)]
2=
oO ON DN BR WwW DY
Karren L. Freedman, Esq. Email: klfreedm@travelers.com
JOSEPH COSTELLA & ASSOCIATES
215 Lennon Lane, Suite 200
Walnut Creek, CA 94598
Tel: 925-945-4491 Fax: 925-746-3916
[Attorneys for Cross-Defendant BODE CONCRETE LLC (sued herein as DOE 10)]
| declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and that this declaration was executed on July 19,
2012, at San Francisco, California. a
‘
Rose Chan
Preview
AOA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jul-20-2012 9:48 am Case Number: CGC-10-498405 Filing Date: Jul-20-2012 9:48 Filed by: RONNIE OTERO Juke Box: 001 Image: 03693319 OPPOSITION L__ PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al 001003693319 Instructions: Please place this sheet on top of the document to be scanned.= o ON DOD oO FF WO DY GARY A. ANGEL, CSB No. 70006 FREAR STEPHEN SCHMID, CSB No. 96089 LAW OFFICES OF GARY A. ANGEL 177 POST STREET, EIGHTH FLOOR SAN FRANCISCO, CA 94108 TELEPHONE: (415) 788-5935 FACSIMILE: (415) 788-5958 JEFFREY H. LOWENTHAL, CSB No.111763 STEYER ENT AL BOODR ROOKAS ALVAREZ & SMITH L ONE CALIFORNIA STREET THIRD FLOOR SAN FRANCISCO, CA 94111 TELEPHONE: (415) 421-3400 FACSIMILE: (415) 421-2234 Attorneys for Plaintiff and Cross-Defendant PERFORMING ARTS, LLC SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PERFORMING ARTS, LLC, a Delaware No. CGC-10-498405 limited liability company, PLAINTIFF PERFORMING ARTS, Piaintiff, LLC’S OPPOSITION TO CROSS- DEFENDANTS’ MOTION TO Vv. CONTINUE THE TRIAL DATE KILLARNEY CONSTRUCTION CO., Date: August 2, 2012 INC., MID-MARKET DEVELOPMENT Time: 9:30 AM CO., INC., CARDINAL CONSULTING, Dept: 206 INC., CULLINANE CONSTRUCTION, Judge: Honorable Katherine Feinstein AL NORMAN MECHANICAL, INC., MICHAEL MURRAY, and DOES 1 Action Filed: April 7, 2010 THROUGH 200, inclusive, Trial Date: September 24, 2012 Defendants. / AND RELATED CROSS-ACTIONS. This action was filed on April 7, 2010. This is the second time a continuance of a set trial date has been sought. Plaintiff PERFORMING ARTS, LLC objects to the cross-defendants KERMAN MORRIS ARCHITECTS, LLP, SANTOS & URRUTIA ASSOCIATES, INC., and BODE 4 PLAINTIFF'S OPPOSITION TO CROSS-DEFENDANTS’ MOTION TO CONTINUE THE TRIAL DATE= Co GO ON DO oO FF WwW DY = CONCRETE, LLC’s motions to continue the trial date. Instead, the court should simply sever the cross-actions against them. This action was filed on April 7, 2010, and initially set for trial on March 26, 2012. Defendants previously moved for a trial date continuance in January 2012, which the court granted. To precipitate the prior continuance of the first trial date, defendant CONSTRUCTION TESTING SERVICES, INC. ("CTS") cross-complained against numerous third parties, ostensibly for indemnification. It is these third-party cross-defendants who are now seeking a further continuance of the trial date. Why these cross-defendants have any obligation to indemnify CTS has never been made clear to plaintiff. The only reason that any of these third-party cross-defendants were brought in by CTS is for causing a delay of the trial in this matter, i.e. the subject motions to continue. Thus, there is no good cause for a continuance of the trial of the underlying claim by plaintiff. The court should simply sever the cross-actions filed by CTS against various cross-defendants, and the related cross-actions between those parties from the underlying lawsuit. C.C.P. §1048(b) provides: “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by Jury required by the Constitution or a statute of this state or of the United States.” Further, C.C.P. §598 provides the court with broad discretion to provide for the orderly conduct of proceedings before it. This case is almost two-and-a-half years old, and long past the trial date envisioned under the Trial Court Delay Reduction Act. Government Code §68600, et seq.. The subject motions fly in the face of the express legislative intent to have trials heard promptly. There is absolutely no reason in law or fact why the cross-actions against the various third-party cross-defendants need to be maintained in this action since (1) the are specious in the first instance and (2) even if valid, they simply seek indemnity for any damages that the defendants herein will suffer as a result of a judgment in this matter. In short, there is no need or reason for a 2 PLAINTIFF'S OPPOSITION TO CROSS-DEFENDANTS’ MOTION TO CONTINUE THE TRIAL DATEoO ON DOD ODO BW Dw = NNN NY DY NY NY YB HY |= Ba a sa a a an an Aan 4 oN OWA RW NH BS GOLAN DAR DOH AS continuance of the trial date in this matter, all that needs to be done is a severance and a continuance of the third-party cross-defendants in the cross-actions and the issues raised by the moving parties for a continuance of the trial date will be served. In sum, moving parties have failed to show good cause for continuance of the trial date. The motion should be denied. Dated: July 19, 2011 Respectfully submitted, LAW OFFICES QF GAR’ bi zw fen Sc , Attorrieys for Plaintiff PERFORMING ARTS, LLC . ANGEL 3 PLAINTIFF'S OPPOSITION TO CROSS-DEFENDANTS’ MOTION TO CONTINUE THE TRIAL DATEo ON DO OH FF Ww DH = NNN NY NY NY NY NY BB Bw Bw Ba Ba aw an an A on OW TO FF WH BF OGD HG AN DA BRO DH AS Re: Performing Arts, LLC v. Killarney Construction Co., Inc., et al. PROOF OF SERVICE | declare that: lam over the age of 18 and not a party to the within action; my business address is 177 Post Street, Suite 890, San Francisco, California, 94108. On July 19, 2012, | served the following document(s): 1. PLAINTIFF PERFORMING ARTS, LLC'S OPPOSITION TO CROSS-DEFENDANTS' MOTION TO CONTINUE THE TRIAL DATE on the parties in said action, by placing true copies thereof in sealed envelopes addressed as shown below for service as designated below: /X/ By First Class Mail - | caused each such envelope, with first-class postage thereon fully prepaid, to be deposited in the United States mail at San Francisco, alifornia. // ByHand Delivery - | caused each such envelope, to be hand delivered to said address(es). L! ByFacsimile - By transmitting a facsimile copy of the above document(s) to the following addressee(s) at the following facsimile number(s): Addressee(s): Suzanne M. Martin, Esq. Email: martin@lbbslaw.com Jonathan G. Kepko, Esq. Email: kepko@Ibbslaw.com LEWIS BRISBOIS BISGAARD & SMITH, LLP One Sansome Street, Suite 1400 San Francisco, CA 94104 Tel: 415-362-2580 Fax: 415-434-0882 [Attorneys for Defendants and Cross-Defendants CULLINANE CONSTRUCTION; AL NORMAN MECHANICAL, INC.; ASPEN INSURANCE UK, LTD Intervenor on behalf of Defendant and Cross-Defendant KILLARNEY CONSTRUCTION CO., INC.] Jordan A. Sussman, Esq. Email: Jordan.Sussman.Law@gmail.com ZIEF DIMENT & GLICKMAN 109 Geary Street, 4" Floor San Francisco, CA 94108 Tel: 415-986-3644 Fax: 415-982-5130 [Attorneys for ASPEN INSURANCE UK, LTD, Intervenor on behalf of Defendant KILLARNEY CONSTRUCTION CO., INC.] Todd B. Gary, Esq. Email: tgary@thegarylawfirm.com THE GARY LAW FIRM 950 Risa Road, Second Floor Lafayette, CA 94549 Tel: 925-831-1155 Fax: 925-831-1188 [Attorneys for Defendant and Cross-Defendant CULLINANE CONSTRUCTION]oO ON DOD OHO RB WwW DY = Nw NN NY KH NH NNMY NY @ Bw oa an an an An An a or ?7n BRB WON BBC HOHANDaAKR SAH AS -~ Now Dion N. Cominos, Esq. Email: Dcominos@gordonreese.com Mark C. Russell, Esq. Email: Mrussell@gordonrees.com Olivia J. Bradbury, Esq. Email: Obradbury@gordonrees.com GORDON & REES LLP Embarcadero Center West 275 Battery Street, Suite 2000 San Francisco, CA 94111 Tel.: 415-986-5900 Fax: 415-986-8054 [Attorneys for Defendant and Cross-Defendant CARDINAL CONSULTING, INC.] Paul Manasian, Esq. Email: manasian@mrlawsf.com Coque K. Dion, Esq. Email: dion@mrlawsf.com MANASIAN & ROUGEAU, LLP 400 Montgomery Street, Suite 1000 San Francisco, CA 94104 Tel: 415-291-8425, ext. 4 Fax: 415-291-8426 [Attorneys for Defendants MICHAEL MURRAY and MID-MARKET DEVELOPMENT CO., INC.] John G. Dooling, Esq. Email: jdooling@rmkb.com Devin C. Courteau, Esq. Email: dcourteau@rmkb.com ROPERS MAJESKI KOHN BENTLEY 201 Spear Street, Suite 1000 San Francisco, CA 94105-1667 Tel: 415-543-4800 Fax: 415-972-6301 [Attorneys for Defendant and X-Complainant CONSTRUCTION TESTING SERVICES, INC.] Jeffrey H. Lowenthal, Esq. Email: jlowenthal@steyerlaw.com STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP One California Street, Third Floor San Francisco, CA 94111 Tel: 415-421-3400 Fax: 415-421-2234 [Attorneys for Plaintiff PERFORMING ARTS, LLC] Richard K. Bauman, Esq. Email: rbauman@att.net LAW OFFICES OF RICHARD K. BAUMAN 220 Montgomery Street, Suite 1500 San Francisco, CA 94104 Tel: 415-982-5230 Fax: 415-397-1577 [Attorneys for Cross-Defendant and Cross-Complainant SANTOS & URRUTIA ASSOCIATES, INC] Bruce N. Furukawa, Esq. Email: bnf@severson.com Yevgenia Altman, Esq. Email: ya@severson.com SEVERSON & WERSON One Embarcadero Center, Suite 2600 San Francisco, CA 94111 Tel: 415-398-3344 Fax: 415-956-0439 [Attorneys for Cross-Defendant KERMAN MORRIS ARCHITECTS, LLP] Heidi C. Quan, Esq. Email: hguan@murchisonlaw.com MURCHISON & CUMMING, LLP 275 Battery Street, Suite 550 San Francisco, CA 94111 Tel: 415-524-4303 Fax: 415-391-2058 [Attorneys for Cross-Defendant BODE CONCRETE LLC (sued herein as DOE 10)] 2= oO ON DN BR WwW DY Karren L. Freedman, Esq. Email: klfreedm@travelers.com JOSEPH COSTELLA & ASSOCIATES 215 Lennon Lane, Suite 200 Walnut Creek, CA 94598 Tel: 925-945-4491 Fax: 925-746-3916 [Attorneys for Cross-Defendant BODE CONCRETE LLC (sued herein as DOE 10)] | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on July 19, 2012, at San Francisco, California. a ‘ Rose Chan