Motion-Secondary: PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Jul-03-2012 2:23 pm

Case Number: CGC-10-498405
Filing Date: Jul-03-2012 2:21
Filed by:
Juke Box: 001 Image: 03675138
MEMORANDUM OF POINTS AND AUTHORITIES

PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al

001003675138

Instructions:
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RICHARD K. BAUMAN State Bar No. 118014 Be “
LAW OFFICES OF RICHARD K. BAUMAN % Os Ye
220 Montgomery Street, Suite 1500 zy RKC
San Francisco, CA 94104 ¢ Soe
Telephone: (415) 982-5230 a 2. LQO
Facsimile: (415) 397-1577 \ 2 e BG
rbauman@att.net a Z, >
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Attorneys for Cross-Defendant/Cross-Complainant % %
SANTOS & URRUTIA ASSOCIATES, INC. yy,

SUPERIOR COURT OF THE STATE OF CALIFORNIA.
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

PERFORMING ARTS, LLC. , a Delaware Case No. CGC-10-498405

Limited Liability Company,
Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF SANTOS
vs. & URRUTIA ASSOCIATES, INC.’S
MOTION TO CONTINUE TRIAL
KILLARNEY CONSTRUCTION CO. INC., Hearing Date: August 2, 2012
MID-MARKET DEVELOPMENT CO, INC., ) Time: 9:30 a.m.
CARDINAL CONSULTING, INC., Dept. 206
CULLINANE CONSTRUCTION, AL Judge: Hon. Katherine
NORMAN MECHANICAL, INC., Feinstein

MICHAEL MURRAY, CONSTRUCTION
TESTING SERVICES, and DOES 1 through

Complaint Filed: April 7, 2010
200, inclusive,

Trial Date: September 24, 2012

Defendants.

BY FAX

AND RELATED CROSS-ACTIONS

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Cross-Defendant/Cross-Complainant SANTOS & URRUTIA ASSOCIATES,

INC. (“Santos & Urrutia”) submits this Memorandum of Points and Authorities in Support of its

Motion to Continue Trial.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SANTOS & URRUTIA ASSOCIATES,

INC.’S MOTION TO CONTINUE TRIAL, PAGE |oe YN DH BF Ww YN

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INTRODUCTION
The trial should be continued because new cross-defendants have been recently
named in this factually and legally complex construction defect action; and because the property
which is the subject of this action was sold on or about May 11, 2012, raising issues of Plaintiff's

standing and damages.

FACTS
The initial complaint in this multiparty construction defect action was filed April
7, 2010. Twenty one months later, on January 17, 2012, Cross-Defendant Santos & Urrutia was
first named in this action in a ROE amendment to the Cross-Complaint of Cross-Defendant
Construction Testing Services, Inc. Such ROE amendment to named the following ROE Cross-

Defendants:

ROE 1: Kerman Morris Architects, Inc.
ROE 2: Santos & Urrutia

ROE 3: Arsenio Ortega, P.E.

ROE 4: UESF Engineers, Inc.

ROE 5: Connolly Heating Inc.

ROE 6: Otis Elevator Company

ROE 7: Gary Chan Plumbing

ROE 8: John Wagner Associates, Inc.
ROE 9: Titan Electric

ROE 10: Bode Concrete
ROE 11: Euro Electric
According to the Court docket, a few of these ROE cross-defendants (Titan Electric, Otis

Elevator, John Wagner Associates, Inc.) have been dismissed but most have not. Some have not

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SANTOS & URRUTIA ASSOCIATES,
INC.’S MOTION TO CONTINUE TRIAL, PAGE 2CoO YD DW BF WN

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yet filed responses. Santos & Urrutia entered the case when it filed its answer to the amended
cross-complaint on February 16, 2012.

On July 2, 2012, counsel for Santos & Urrutia learned that Plaintiff Performing
Arts, LLC. has apparently sold the subject property to Raintree 973 Market LLC, a Delaware
limited liability company, with the deed to such sale having been recorded on May 11, 2012 in

the San Francisco Assessor-Recorder’s office.

GOOD CAUSE EXISTS FOR THE GRANTING OF A CONTINUANCE
BECAUSE MANY NEW PARTIES HAVE BEEN RECENTLY ADDED

Under California Rule of Court 3.1332(c), the court may grant a continuance of
the trial upon a showing of good cause. The grounds for continuance in this instance are
primarily those of California Rule of Court 3.1332 (c)(5), pursuant to which good cause for a
continuance is the addition of a new party if:

(A) _ The new party has not had a reasonable opportunity to conduct discovery
and prepare for trial; or

(B) The other parties have not had a reasonable opportunity to conduct
discovery and prepare for trial in regard to the new party's involvement in the case;

Here, many new parties have been added. Santos & Urrutia is a structural
engineering firm, and will likely have to retain a structural engineering expert witness as part of
its defense. Experts will likely be named by many other parties, including the parties recently
named as ROE defendants listed above. The review and production of documents is ongoing, as
is discovery and the depositions of percipient and expert witnesses. But considerable time will
be needed for the parties and their experts to discuss the construction documents, expert reports,
repair plans, and engage in settlement discussions and/or mediation. Mediation is set for July
31, 2012. If the mediation is not successful the short time left until the September 24, 2012 trial

will severely prejudice Santos & Urrutia’s ability to prepare a defense.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SANTOS & URRUTIA ASSOCIATES,
INC.’S MOTION TO CONTINUE TRIAL, PAGE 3CoC Oo nD DA FF Ww YH

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Under Cal. Rule of Court 3.1332 (d)(2), one factor which may be considered by
the court is whether there has been a previous continuance, extension of time, or delay due to
trial due to any party. There was a continuance of the trial date from March 26, 2012 to
September 24, 2012, but Santos & Urrutia did not request such continuance. This motion is the

first motion to continue trial made by Santos & Urrutia.

GOOD CAUSE EXISTS FOR THE GRANTING OF A CONTINUANCE
BECAUSE THE SUBJECT PROPERTY HAS BEEN SOLD AND THE PLAINTIFF
MAY NO LONGER BE THE REAL PARTY IN INTEREST

On July 2, 2012, counsel for Santos & Urrutia first learned that the property which
is the subject of this action has been sold by Plaintiff Performing Arts, LLC. Counsel for Santos
& Urrutia obtained a deed, recorded May 11, 2012 in the office of the San Francisco Assessor-
Recorder, in which Plaintiff Performing Arts LLC, conveyed the subject property, 973 Market
Street, San Francisco, to Raintree 973 Market LLC. A copy of such deed is attached as Exhibit
A to the Declaration of Richard K. Bauman filed herewith. This raises issues of both standing
and damages. Is Plaintiff Performing Arts LLC the real party in interest? If this case is settled
or adjudicated, are defendants and cross-defendants subject to a future action by the new owner?
How does the sale affect Plaintiff's claimed damages? Santos & Urrutia is not aware of any
pleading which discloses the change in ownership, and Santos & Urrutia has not had the

opportunity to conduct discovery on the issue.

CONCLUSION
Santos & Urrutia requests the Court to continue the trial for four to six months.
Santos & Urrutia requests the Court to set new dates for the trial and mandatory settlement
conference, and to order all discovery and'motion cut off dates to correspond to the new trial

date.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SANTOS & URRUTIA ASSOCIATES,
INC.’S MOTION TO CONTINUE TRIAL, PAGE 4Co Oo DT DH BW NH

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SRRREBRBEBRS SERRE ESBSHES

Dated: July 3, 2012 LAW OFFICES OF
RICHARD K. BAUMAN

0¢ ( @—

Richard K. Bauman

Attorneys for Cross-Defendant/
Cross-Complainant

SANTOS & URRUTIA
ASSOCIATES, INC.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SANTOS & URRUTIA ASSOCIATES,
INC.’S MOTION TO CONTINUE TRIAL, PAGE 5com YN DH FF WN BS

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PROOF OF SERVICE

I, the undersigned, hereby declare: I am over 18 years of age and not a party to this action; my
business address is 220 Montgomery Street, Suite 1500, San Francisco, California 94104.

On this date I served the attached:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
SANTOS & URRUTIA ASSOCIATES, INC.’S MOTION TO CONTINUE TRIAL

by placing a true copy thereof, enclosed in a sealed envelope addressed as follows:
See attached service list

I caused such envelope with postage thereon fully paid to be deposited in a
mailbox in San Francisco, California. I declare under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.

Dated: July 3, 2012

Lo R—

Richard K. Bauman

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SANTOS & URRUTIA ASSOCIATES,
INC.’S MOTION TO CONTINUE TRIAL, PAGE 6Service List

Performing Arts vs Killarney, et al..

San Francisco Superior Court No. CGC-10-498405

Gary A. Angel, Esq.

Frear Stephen Schmid, Esq.

San Francisco, CA 94121

Law Offices of Gary A. Angel

177 Post Street, 8" Floor

San Francisco, CA 94108
Tel.: (415) 788-5935
Fax: (415) 788-5958

Attorneys for Plaintiff

Performing Arts, LLC

Jeffrey H. Lowenthal, Esq.
Steyer Lowenthal Boodrookas
Alvarez & Smith, LLP
One California Street, 3 Floor
San Francisco, CA 94111
Attorneys for Plaintiff
Performing Arts, LLC

Suzanne M. Martin, Esq.
Lewis Brisbois Bisgaard & Smith,
LLP
One Sansome Street, Suite 1400
San Francisco, CA, 94104

Tel.: (415) 438-6616

Fax: (415) 434-0882
Attorneys for Intervener Aspen
Insurance Uk, Ltd. On behalf of
Defendant Killarney
Construction Co., A California
Suspended Corporation; and
Defendants Cullinane
Construction and Al Norman
Mechanical, Inc.

Jordan A. Sussman. Esq.
Zief Diment & Glickman
109 Geary Street, 4th 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.

Paul Manasian, Esq.

Manasian & Rougeau, LLP

400 Montgomery Street, Suite 1000

San Francisco, California 94104
Tel.:(415) 291-8425 x4
Fax (415) 291-8426

Attorneys for Defendants

Michael Murray and Mid-

Market Development Co.,Inc.

Dion N. Cominos, Esq.

Mark C, Russell, Esq.

Olivia J. Bradbury, Esq.

Gordon & Rees

275 Battery Street, Suite 2000

San Francisco, CA 94111
Tel: (415) 986-5900
Fax: (415) 986-8054

Attorneys for Defendant

Cardinal Consulting, Inc.

John C. Dooling, Esq.

Devin C. Courteau, Esq.

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

Construction Testing Services,

Inc.

Todd B. Gary, Esq.
The Gary Law Firm
950 Risa Road, 2nd Floor
Lafayette, CA 94549
Tel: (925) 831-1155
Fax: (925) 831-1188
Attorney for Defendant and
Cross-Defendant
Cullinane Construction

Bruce N. Furakawa, Esq.
Eric M. Crowe. Esq.
Yevgenia Altman, Esq.
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 Quan, Esq.
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

Karren L. Freedman, Esq.
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