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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Dec-09-2011 4:06 pm
Case Number: CGC-10-498405
Filing Date: Dec-09-2011 4:05
Juke Box: 001 Image: 03415471
MOTION FOR SUMMARY JUDGMENT
PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al
001003415471
Instructions:
Please place this sheet on top of the document to be scanned.Ropers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
| JOHN G. DOOLING (SBN 154358)
DEVIN C. COURTEAU (SBN 197505)
i PERFORMING ARTS, LLC,
I Plaintiff,
v.
KILLARNEY CONSTRUCTION CO.,
INC., ef al.,
| Defendants.
AND RELATED CROSS-ACTIONS.
ROPERS, MAJESKI, KOHN & BENTLEY
201 Spear Street, Suite 1000
} San Francisco, CA 94105-1667 6 L
Telephone: (415) 543-4800 ranclsoe Cou
J Facsimile: (415) 972-6301 iy Steerer Ca
Email: jdooling@rmkb.com DEC ~ 9 214
dcourteau@rmkb.com CLE;
Attorneys for Defendant and Cross-Complainant By: Fae oou |
| CONSTRUCTION TESTING SERVICES, INC. Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
CASE NO. CGC-10-498405
CONSTRUCTION TESTING SERVICES,
INC.’S NOTICE OF MOTION AND
MOTION FOR SUMMARY JUDGMENT
ON PLAINTIFF’S COMPLAINT
Date: February 24, 2012
Time: 9:30 a.m.
Dept.: 302
Honorable Harold E. Kahn
Trial: March 26, 2012
TO: PLAINTIFF PERFORMING ARTS, LLC AND ITS COUNSEL OF RECORD, AND ALL
PARTIES AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE that on February 24, 2012, 2012, at 9:30 a.m., or as soon
thereafter as the matter may be heard, in Department 302 of this Court, located at 400 McAllister
| Street, San Francisco, California 94102, defendant and cross-complainant CONSTRUCTION
TESTING SERVICES, INC. (hereinafter “CTS”) will and hereby does move for summary
judgment in CTS’s favor and against plaintiff Performing Arts, LLC (“Plaintiff”), regarding
Plaintiff's Complaint, on the ground that Plaintiff lacks standing and/or is not a real party in
| interest.
RC16253227. DCC -l-
CONSTRUCTION TESTING SERVICES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY
JUDGMENT ON PLAINTIFF'S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco.
This Motion will be and is made pursuant to Code of Civil Procedure section 437¢, and is
| based on this Notice, the Memorandum of Points & Authorities in Support of Construction
| Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's Complaint, the Separate
Statement of Undisputed Material Facts in Support of Construction Testing Services, Inc.’s
Motion for Summary Judgment on Plaintiffs Complaint, the Declaration of Devin C. Courteau in
Support of Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's
Complaint, the Declaration of James E. Doyle in Support of Construction Testing Services, Inc.’s
Motion for Summary Judgment on Plaintiff's Complaint, the Request for Judicial Notice in
Support of Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's
Complaint, and the [Proposed] Order Granting Construction Testing Services, Inc.*s Motion for
i Summary Judgment on Plaintiff's Complaint, all filed concurrently herewith, as well as the
| papers, files and documents within the Court’s file, and upon other such evidence and oral
argument presented at the time of the hearing on this Motion.
Dated: December 9, 2011 ROPERS, MAJESKI, KOHN & BENTLEY
| Bys A De
JOHN G. DOOLING
} DEVIN C. COURTEAU
Attorneys for Defendant and Cross-
Complainant CONSTRUCTION
TESTING SERVICES, INC.
RC146253227. DCC -2-
CONSTRUCTION TESTING SERVICES, INC.°S NOTICE OF MOTION AND MOTION FOR SUMMARY.
JUDGMENT ON PLAINTIFF'S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
Redweoow City
A
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NY
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27
JOHN G. DOOLING (SBN 154358)
DEVIN C. COURTEAU (SBN 197505)
ROPERS, MAJESKI, KOHN & BENTLEY
201 Spear Street, Suite 1000
San Francisco, CA 94105-1667
Telephone: (415) 543-4800
Facsimile: (415) 972-6301
Email: jdooling@rmkb.com
deourteau@rmkb.com
Attorneys for Defendant and Cross-Complainant
CONSTRUCTION TESTING SERVICES, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PERFORMING ARTS, LLC, CASE NO. CGC-10-498405
Plaintiff, DECLARATION OF JAMES E. DOYLE IN
SUPPORT OF CONSTRUCTION
v. TESTING SERVICES, INC.’S MOTION
FOR SUMMARY JUDGMENT ON
KILLARNEY CONSTRUCTION CO., PLAINTIF¥F’S COMPLAINT
INC.,, et al,
Date: February 24, 2012
Defendants. Time: 9:30 a.m.
Dept.: 302
Honorable Harold E. Kahn
AND RELATED CROSS-ACTIONS Trial: March 26, 2012
I, James E. Doyle, declare as follows:
1 Tam a Project Manager for Construction Testing Services, Inc. (“CTS”), Asa
Project Manager for CTS, my duties consist of reviewing the invoices for CTS projects on a
monthly basis, based on the contractual rates, amounts and dates of service for CTS. Based on
my duties with CTS, I have knowledge of the work CTS employees perform on its jobs, and
regarding the work CTS performed with regard to the renovation and retrofit of 973 Market
Street, San Francisco, California (the “Premises”).
2. If called as a witness, I could competently testify to the following facts, all of
RC1/6252977.1/DCC -l-
DECLARATION OF JAMES E. DOYLEIN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION FOR
SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohw & Bentley
A Professional Corporation
Redwood City
Co YW DH A Bw YB
Se Be BP eRe Be BP
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which are within my own personal knowledge, exccpt for those facts stated on information and
belief, and as to those facts I believe them to be true.
3. In early to mid-2007, CTS was retained by general contractor, MidMarket
Development Co., Inc. (“MidMarket”), on behalf of the owners of the Premises, 973 Market
Associates, LLC (“973 Market”), to perform periodic special inspections and material testing on
limited portions of the concrete and shotcrete work performed by other subcontractors. This was
the only work CTS was retained to perform, and the only work CTS in fact did perform, at the
Premises.
4. Because CTS performed limited periodic (not continuous) special inspections, its
employees were not present at the Premises on a daily basis, and therefore did not observe all of
the work performed by the concrete and shotcrete subcontractors. Instead, as intended by the
{ agreement between CTS and MidMarket, CTS personnel were only present at the Premises when
{ they were requested to be there by Midmarket. I am informed and believe that CTS personnel
were present on the Premises for a total of thirty-one inspections.
5. CTS last performed any work regarding the Premises on or about November 5,
2007, after which CTS’s involvement with any and ali construction work at the Premises ended.
In any event, ] am informed and believe that on March 19, 2008, 973 Market halted all
construction activity at the Premises, and construction activity never resumed.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed this 9" day of December, 2011 at Pleasanton, California.
RC1/6252077.1/0CC -2-
DECLARATION OF JAMES E. DOYLE IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION FOR
SUMMARY JUDGMENT ON PLAINTIFF'S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
JOHN G. DOOLING (SBN 154358)
DEVIN C. COURTEAU (SBN 197505)
ROPERS, MAJESKI, KOHN & BENTLEY
201 Spear Street, Suite 1000
San Francisco, CA 94105-1667
Telephone: (415) 543-4800
Facsimile: (415) 972-6301
Email: jdooling@rmkb.com
dcourteau@rmkb.com
Attorneys for Defendant and Cross-Complainant
CONSTRUCTION TESTING SERVICES, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PERFORMING ARTS, LLC, CASE NO. CGC-10-498405
Plaintiff, PROOF OF SERVICE
vy.
KILLARNEY CONSTRUCTION CO.,
INC., et al.,
Defendants.
RC1/6254885.1/SH8 -l-
PROOF OF SERVICERopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
CASE NAME : PERFORMING ARTS v. KILLARNEY, et al.
ACTION NO. : CGC 10-498405
PROOF OF SERVICE
| METHOD OF SERVICE
CO First Class Mail O Facsimile x Messenger Service
Oo Overnight Delivery O1 E-Mail/Electronic Delivery
| 1. Atthe time of service I was over 18 years of age and not a party to this action.
2. My business address is 201 Spear Street, Suite 1000, San Francisco, CA 94105-1667,
Pp
County of San Francisco.
3. On December 9, 2011, I served the following document(s):
CONSTRUCTION TESTING SERVICES, INC’S NOTICE OF MOTION AND
| MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
| CONSTRUCTION TESTING SERVICES, INC’S MOTION FOR SUMMARY
JUDGMENT ON PLAINTIFF’S COMPLAINT;
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT
OF CONSTRUCTION TESTING SERVICES, INC’S MOTION FOR SUMMARY
JUDGMENT ON PLAINTIFF’S COMPLAINT;
DECLARATION OF JAMES E. DOYLE IN SUPPORT OF CONSTRUCTION
| TESTING SERVICES, INC’S MOTION FOR SUMMARY JUDGMENT ON
PLAINTIFFS COMPLAINT;
| DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION
TESTING SERVICES, INC’S MOTION FOR SUMMARY JUDGMENT ON
PLAINTIFF’S COMPLAINT;
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CONSTRUCTION
TESTING SERVICES, INC’S MOTION FOR SUMMARY JUDGMENT ON
PLAINTIFF’S COMPLAINT;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
CONSTRUCTION TESTING SERVICES, INC’S MOTION FOR SUMMARY
JUDGMENT ON PLAINTIFF’S COMPLAINT - REDACTED VERSION;
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
CONSTRUCTION TESTING SERVICES, INC’S MOTION FOR SUMMARY
JUDGMENT ON PLAINTIFF'S COMPLAINT - REDACTED VERSION
DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION
TESTING SERVICES, INC’S MOTION FOR SUMMARY JUDGMENT ON
PLAINTIFF’S COMPLAINT — REDACTED VERSION
INDEX OF EXHIBITS SUBMITTED IN SUPPORT OF CONSTRUCTION
TESTING SERVICES, INC.’S MOTION FOR SUMMARY JUDGMENT ON
PLAINTIFF’S COMPLAINT;
[PROPOSED] ORDER
RC1/6254885.1/SH8 -1-
SS
| PROOF OF SERVICERopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco,
we ww
| 4. Iserved the document(s) on the persons at the address below (along with their fax numbers
and/or email addresses if service was by fax or email):
Gary A. Angel, Esq.
Frear Stephen Schmid, Esq.
Law Offices of Gary A. Angel
177 Post Street, 8" Floor
San Francisco, CA 94108
(415) 788-5935/FAX (415) 788-5958
Attorneys for Plaintiff PERFORMING
ARTS, LLC
Suzanne M. Martin, Esq. *
Lewis Brisbois Bisgaard & Smith, LLP
One Sansome Street, Suite 1400
San Francisco, CA 94104
(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.
Paul Manasian, Esq.
Manasian & Rougeau, LLP
400 Montgomery Street, Suite 1000
San Francisco, CA 94104
(415) 291-8425 x4/FAX (415) 291-8426
Attorneys for Defendants MICHAEL
MURRAY and MID-MARKET
DEVELOPMENT CO,, INC.
Jeffrey H. Lowenthal, Esq.
Steyer Lowenthal Boodrookas Alvarez, et al.
One California Street, 3" Floor
San Francisco, CA 94111
(415) 421-3400/FAX (415) 421-2234
Attorneys for Plaintiff PERFORMING
ARTS, LLC
Dion N, Cominos, Esq.
Mark C. Russell, Esq.
Olivia J. Bradbury, Esq.
Gordon & Rees
275 Battery Street, Suite 2000
San Francisco, CA 94111
(415) 986-5900/FAX (415) 986-8054
Attomeys for Defendant CARDINAL
CONSULTING, INC.
5. Iserved the document(s) by the following means:
a. O By United States mail: I enclosed the documents in a sealed envelope or package
addressed to the persons at the addresses specified in item 4 and placed the envelope
for collection and mailing, following our ordinary business practices. 1 am readily
familiar with this business’s practice for collecting and processing correspondence for
mailing. On the same day that correspondence is placed for collection and mailing, it
| is deposited in the ordinary course of business with the United States Postal Service,
in a sealed envelope with postage fully prepaid at the address listed in Paragraph 2
above.
By overnight delivery: I enclosed the documents in an envelope or package provided
by an overnight delivery carricr and addressed to the persons at the addresses in item
4. Iplaced the envelope or package for collection and overnight delivery at an office
ora regularly utilized drop box of the overnight delivery carrier.
By messenger: I served the documents by placing them in an envelope or package
addressed to the persons at the addresses listed in item 4 and providing them to a
messenger for service. (Separate declaration of personal service to be provided by
the messenger.)
RC1/6254885.1/SH8 -2-
PROOF OF SERVICERopers Majeski Kohn & Bentley
A Professional Corpération
San Francisco
1 d. O By fax transmission; Based on an agreement between the parties and in conformance
with Rule 2.306, and/or as a courtesy, I faxed the documents to the persons at the fax
2 | numbers listed in item 4. No error was reported by the fax machine that I used. A
copy of the record of the fax transmission is attached.
3
e. O By email or electronic transmission: Based on an agreement between the parties
y gre P
4 and/or as a courtesy, I sent the documents to the persons at the email addresses
listed in item 4. I did not receive, within a reasonable time after the transmission,
5 any electronic message or other indication that the transmission was unsuccessful.
6 | [declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct,
7
| Date: December 9, 2011
8
9 | Sally J. Hamm
Type Name
10
ll
12 |
13 |
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15
16
17
18
19
20
21 |
22
}
23
24
25
26
27|
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| RCI/6254885.1/SH8 -3-
PROOF OF SERVICERopers Majeski Kohn & Bentley
A Professional Corporation
Redwood City
| JOHN G. DOOLING (SBN 154358)
DEVIN C. COURTEAU (SBN 197505)
ROPERS, MAJESKI, KOHN & BENTLEY
201 Spear Street, Suite 1000
San Francisco, CA 94105-1667
Telephone: (415) 543-4800
Facsimile: (415) 972-6301
Email: idooling@rmkb.com
| dcourteau@rmkb.com
Attorneys for Defendant and Cross-Complainant
! CONSTRUCTION TESTING SERVICES, INC.
PERFORMING ARTS, LLC,
| Plaintiff,
v.
| KILLARNEY CONSTRUCTION CO.,
INC,, et al,
Defendants.
AND RELATED CROSS-ACTIONS
San ‘J
Codity Superior Court
T
™ puty Clark
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
CASE NO. CGC-10-498405
INDEX OF EXHIBITS SUBMITTED IN
SUPPORT OF CONSTRUCTION
TESTING SERVICES, INC.’°S MOTION
FOR SUMMARY JUDGMENT ON
PLAINTIFF’S COMPLAINT
Date: February 24, 2012
Time: 9:30 a.m.
Dept.: 302
Honorable Harold E. Kahn
Trial: March 26, 2012
Document
Exhibit
Second Amended Complaint for Damages
(“Complaint”) filed in this action on September
14, 2010 by Plaintiff Performing Arts, LLC
(“Plaintiff”).
Exhibit A to the Declaration of Devin C.
Courteau in Support of Construction Testing
Services, Inc.’s Motion for Summary Judgment
on Plaintiff's Complaint (“Courteau Decl.”).
“Construction Loan Agreement” between
United Commercial Bank (“UCB”) as lender
Exhibit B to the Courteau Decl.
RC1/6255259.1/DCC -
DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION
FOR SUMMARY JUDGMENT ON PLAINTIFFS COMPLAINTRopers Majeski Kohn & Bentley
A Prafessional Corporation
Redwood City
om NK WH
and 973 Market Associates, LLC as borrower,
re Loan No. 485 000 940-0
Letter, dated January 9, 2008, from Ronald Exhibit C to the Courteau Decl.
Blum, MAI, a Certified General Real Estate
Appraiser with Cameghi-Blum & Partners, Inc.
Deed of Trust, Assignment of Rents, Fixture Exhibit D to the Courteau Decl.
Filing and Security Agreement; Request for
Notice
Letter, dated March 19, 2008, from the Exhibit E to the Courteau Decl.
members of 973 Market Street Associate, LLC
(“973 Market”)
Letter, dated August 21, 2008, from Tony Exhibit F to the Courteau Decl.
Manning, Manager of 973 Market
Facsimile, dated November 14, 2008, from Exhibit G to the Courteau Decl.
Tracy McCarthy of Centrix Builders Inc.
(“Centrix”) to Tony Manny of 973 Market
Stipulation re Protective Order in this action Exhibit H to the Courteau Decl.
Transcript of the Bankruptcy Rule 2004 Exhibit I to the Courteau Decl.
Examination (deposition) of Joe Cassidy, taken
on December 8, 2009 in Jn re: 973 Market
Associates, LLC, United States Bankruptcy
Court for the Northem District of California,
San Francisco Division, Case No. 09-32014
DM 11.
Limited Liability Company Agreement of Exhibit J to the Courteau Decl.
Performing Arts, LLC, dated as of June 18,
2009
RC1/6255259, JDCC -2-
DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION
FOR SUMMARY JUDGMENT ON PLAINTIFF'S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
Redwood City
Loan Purchase Agreement between United
Commercial Bank as Seller and Performing
Arts, LLC as Purchaser, dated as of June 25,
2009
Exhibit K to the Courteau Decl.
Trustee’s Deed Upon Sale, dated January 26,
2010
Exhibit L to the Courteau Decl.
Complaint for Damages for Breach of Written
Guaranty filed by Plaintiff on November 19,
2009, in Performing Arts, LLC v. Michael
Murray, et al., San Francisco Superior Court
Case No. CGC-09-494591
Exhibit M to the Courteau Decl.
Dated: December 9, 2011
By:
RC1/6255259.1/DCC
ROPERS, MAJESKI, KOHN & BENTLEY
JOHN G. DOOLING
DEVIN C. COURTEAU
Attorneys for Defendant and Cross-Complainant
CONSTRUCTION TESTING SERVICES, INC.
-3-
DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC."S MOTION
FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
JOHN G. DOOLING (SBN 154358)
DEVIN C. COURTEAU (SBN 197505)
ROPERS, MAJESKI, KOHN & BENTLEY
201 Spear Street, Suite 1000
San Francisco, CA 94105-1667
Telephone: (415) 543-4800
Facsimile: (415) 972-6301
Email: jdooling@rmkb.com
dcourteau@smkb.com
Attorneys for Defendant and Cross-Complainant
CONSTRUCTION TESTING SERVICES, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PERFORMING ARTS, LLC,
Plaintiff,
v.
KILLARNEY CONSTRUCTION CO.,
INC., et al,
Defendants.
AND RELATED CROSS-ACTIONS
CASE NO. CGC-10-498405
INDEX OF EXHIBITS SUBMITTED IN
SUPPORT OF CONSTRUCTION
TESTING SERVICES, INC.“S MOTION
FOR SUMMARY JUDGMENT ON
PLAINTIFF’S COMPLAINT
Date: February 24, 2012
Time: 9:30 a.m.
Dept.: 302
Honorable Harold E. Kahn
Trial: March 26, 2012
Document
Exhibit
Second Amended Complaint for Damages
(“Complaint”) filed in this action on September
14, 2010 by Plaintiff Performing Arts, LLC
(“Plaintiff”).
Exhibit A to the Declaration of Devin C.
Courteau in Support of Construction Testing
Services, Inc.’s Motion for Summary Judgment
on Plaintiff's Complaint (“Courteau Decl.”).
“Construction Loan Agreement” between
United Commercial Bank (“UCB”) as lender
Exhibit B to the Courteau Decl.
RCI6255259.1/CC -
INDEX OF EXHIBITS SUBMITTED IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.°S MOTION FOR
SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
and 973 Market Associates, LLC as borrower,
re Loan No. 485 000 940-0
Letter, dated January 9, 2008, from Ronald
Blum, MAI, a Certified General Real Estate
Appraiser with Carneghi-Blum & Partners, Inc.
Exhibit C to the Courteau Decl.
Deed of Trust, Assignment of Rents, Fixture
Filing and Security Agreement; Request for
Notice
Exhibit D to the Courteau Decl.
Letter, dated March 19, 2008, from the
members of 973 Market Street Associate, LLC
(“973 Market”)
Exhibit E to the Courteau Decl.
Letter, dated August 21, 2008, from Tony
Manning, Manager of 973 Market
Exhibit F to the Courteau Decl.
Facsimile, dated November 14, 2008, from
Tracy McCarthy of Centrix Builders Inc.
(“Centrix”) to Tony Manny of 973 Market
Exhibit G to the Courteau Decl.
Stipulation re Protective Order in this action
Exhibit H to the Courteau Decl.
Transcript of the Bankruptcy Rule 2004
Examination (deposition) of Joe Cassidy, taken
on December 8, 2009 in In re: 973 Market
Associates, LLC, United States Bankruptcy
Court for the Northern District of California,
San Francisco Division, Case No. 09-32014
DM il.
Exhibit I to the Courteau Decl.
Limited Liability Company Agreement of
Performing Arts, LLC, dated as of June 18,
2009
Exhibit J to the Courteau Decl.
RCI/6255259./DCC -2-
INDEX OF EXHIBITS SUBMITTED IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION FOR.
SUMMARY JUDGMENT ON PLAINTIFF*S COMPLAINTRopers Majeski Kohn & Bentley
A Prefessionai Corporation
San Francisco
Loan Purchase Agreement between United
Commercial Bank as Seller and Performing
Arts, LLC as Purchaser, dated as of June 25,
2009
Exhibit K to the Courteau Decl.
Trustee’s Deed Upon Sale, dated January 26,
2010
Exhibit L to the Courteau Decl.
Complaint for Damages for Breach of Written
Guaranty filed by Plaintiff on November 19,
2009, in Performing Arts, LLC v. Michael
Murray, et al., San Francisco Superior Court
Case No. CGC-09-494591
Exhibit M to the Courteau Decl.
Dated: December 9, 2011
RC1/6255239. DCC
ROPERS, MAJESKI, KOHN & BENTLEY
op
LE
JOHN G. DOOLING
DEVIN C. COURTEAU
Attomeys for Defendant and Cross-Complainant
CONSTRUCTION TESTING SERVICES, INC.
-3-
INDEX OF EXHIBITS SUBMITTED IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.*S MOTION FOR
SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentiey
A Professional Corporation
Redwood City
JOHN G. DOOLING (SBN 154358)
DEVIN C. COURTEAU (SBN 197505)
ROPERS, MAJESKI, KOHN & BENTLEY
201 Spear Street, Suite 1000
San Francisco, CA 94105-1667
Telephone: (415) 543-4800
Facsimile: (415) 972-6301 &
Email: jdooling@rmkb.com
deourteau@rmkb.com
Attomeys for Defendant and Cross-Complainant
CONSTRUCTION TESTING SERVICES, INC.
San Frangise ‘Courty E | Court
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PERFORMING ARTS, LLC, CASE NO. CGC-10-498405
Plaintiff, REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF CONSTRUCTION
Vv. TESTING SERVICES, INC.’S MOTION
FOR SUMMARY JUDGMENT ON
KILLARNEY CONSTRUCTION CO., PLAINTLFF’S COMPLAINT
INC., ef al.,
Date: February 24, 2012
Defendants. Time: 9:30 a.m.
Dept.: 302
Honorable Harold E. Kahn
AND RELATED CROSS-ACTIONS Trial: March 26, 2012
Defendant and cross-complainant CONSTRUCTION TESTING SERVICES, INC.
(“CTS”) respectfully request Judicial Notice be taken, pursuant to Evidence Code §§ 452 and
453, of the following:
1. The Second Amended Complaint for Damages filed in this action by plaintiff
Performing Arts, LLC (“Plaintiff”) on September 14, 2010, a copy of which is attached as Exhibit
A to the Declaration of Devin C. Courteau in Support of Construction Testing Services, Inc.’s
Motion for Summary Judgment (“Courteau Declaration”), filed concurrently with this document;
and
RC1/6252945.1/DCC -1-
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.S MOTION FOR
SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT,Ropers Majeski Kohn & Bentley
A Professional Corporation
Redwood City
nA WwW #z
2, The Complaint for Damages for Breach of Written Guaranty filed by Plaintiff on
November 19, 2009, in Performing Arts, LLC v. Michael Murray, et al., San Francisco Superior
Court Case No. CGC-09-494591, a copy of which is attached as Exhibit M to the Courteau
Declaration.
Dated: December 9, 2011 ROPERS, MAJESKI, KOHN & BENTLEY
en
JOHN G. DOOLING
DEVIN C. COURTEAU
Attorneys for Defendant and Cross-Complainant
CONSTRUCTION TESTING SERVICES, INC.
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.°S MOTION FOR
SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT.
| RC1/6252945. DCC -2-Ropers Majeski Kohn & Bentley
A Professional Corporation
Redwoed City
a Dw
JOHN G. DOOLING (SBN 154358)
DEVIN C. COURTEAU (SBN 197505)
ROPERS, MAJESKI, KOHN & BENTLEY
201 Spear Street, Suite 1000
San Francisco, CA 94105-1667
Telephone: (415) 543-4800
Facsimile: (415) 972-6301
Email: jdooling@rmkb.com
dceourteau@rmkb.com
Attomeys for Defendant and Cross-Complainant
CONSTRUCTION TESTING SERVICES, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PERFORMING ARTS, LLC, CASE NO. CGC-10-498405
Plaintiff, DECLARATION OF DEVIN C.
COURTEAU IN SUPPORT OF
v. CONSTRUCTION TESTING SERVICES,
INC.’S MOTION FOR SUMMARY
KILLARNEY CONSTRUCTION CO., JUDGMENT ON PLAINTIFF'S
INC., et al., COMPLAINT
Defendants. Date: February 24, 2012
Time: 9:30 a.m.
Dept.: 302
Honorable Harold E. Kahn
AND RELATED CROSS-ACTIONS Trial: March 26, 2012
I, Devin C. Courteau, declare as follows:
1. Jam an attorney licensed to practice by the State of California, and am with the
law firm Ropers, Majeski, Kohn & Bentley, attorneys of record for defendant and cross-
complainant Construction Testing Services, Inc. (“CTS”) in the above-referenced matter. ] have
personal knowledge of the matters stated in this declaration, except as to those matters stated on
information and belief, and as to those matters I believe them to be true, and could so testify as a
witness.
RC1/6252946. DCC -1-
DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC."S MOTION
FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT.Ropers Majeski Kohn & Bentley
A Professional Corporation
Redwood City
2. Attached hereto as Exhibit A is a true and correct copy of the Second Amended
Complaint for Damages (“Complaint”) filed in this action on September 14, 2010 by Plaintiff
Performing Arts, LLC (“Plaintiff”).
3. On August 22, 2011, I received a CD containing the documents produced by
plaintiff in this action in response to requests for production propounded by defendant Cardinal
Consulting, Inc. (hereinafter, “Plaintiff's First Production”). Plaintiff's First Production is Bates
Stamped PA 00001 — PA 06243, CTRL00000001 — CTRL00002816, and includes an additional
1,200 pages of documents that are not Bates Stamped.
4. Attached hereto as Exhibit B is a true and correct copy of a “Construction Loan
Agreement” between United Commercial Bank (“UCB”) as lender and 973 Market Associates,
LLC (“973 Market”) as borrower, with Loan No. 485 000 940-0 (hereinafter the “UCB Loan”),
that was included within Plaintiff's First Production as PA 06078 — PA 06148. | am informed
and believe that Exhibit B is the construction loan entered into between UCB and 973 Market
regarding the renovation and retrofit of 973 Market Street, San Francisco, California (the
“Premises”).
3. Attached hereto as Exhibit C is a true and correct copy of a letter, dated January 9,
2008, from Ronald Blum, MAI, a Certified General Real Estate Appraiser with Carneghi-Blum &
Partners, Inc., that was included within Plaintiff's First Production as part of an un-Bates Stamped
document entitled: “Appraisal of: 973 — 977 Market Street, San Francisco, California Proposed
Loan #4850009400.” As shown by Exhibit B, the UCB Loan was loan number 4850009400. I
am informed and believe that Exhibit C states that, as of December 17, 2008, the Premises was
worth $8.5 million in its “as is” condition.
6. Attached hereto as Exhibit D is a true and correct copy of a “Deed of Trust,
Assignment of Rents, Fixture Filing and Security Agreement; Request for Notice,” that was
included within Plaintiff's First Production as PA 06060 — PA 06077. I am informed and believe
that Exhibit D is the deed of trust executed by 973 Market for the benefit of UCB to secure the
UCB Loan,
7. Attached hereto as Exhibit E is a true and correct copy of a letter, dated March 19,
RC16252946.1/D0C -2-
DECLARATION OF DEVIN C, COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION
FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
Redwood City
wn
2008, from the members of 973 Market to “Mike,” whom I am informed and believe is defendant
Mike Murray, that was included within Plaintiff's First Production as CTRL00000426 (on the
CD), although the stamp on the document states “MAN000172.” I am informed and believe that
Exhibit E is a letter pursuant to which 973 Markct notified its general contractor that construction
must cease at the Premises.
8. Attached hereto as Exhibit F is a true and correct copy ofa letter, dated August
21, 2008, from Tony Manning, Manager of 973 Market, to defendant Michael Murray, of
defendant MidMarket Development Co., Inc., that was included within Plaintiff's First
Production as PA 01282 — PA 01285. I am informed and believe that Exhibit F is the letter by
which 973 Market terminated MidMarket and Mr. Murray as general contractor for the
construction project at the Premises.
9. Attached hereto as Exhibit G is a true and correct copy of a facsimile, dated
November 14, 2008, from Tracy McCarthy of Centrix Builders Inc. (“Centrix”) to Tony Manny
of 973 Market, which attaches to it an invoice of the same date to 973 Market, which in tum
attaches to it a Consultancy Agreement, dated October 3, 2008, between Centrix and 973 Market.
This document was included within Plaintiff's First Production as CTRL00000014 —
CTRL00000017 (on the CD), although the documents themselves do not have Bates Stamps. I
am informed and believe that Exhibit G is Centrix’s agreement to inspect the Premises and
prepare a bid and/or estimate to complete the project, in exchange for payment of $20,000.
10. On November 22, 2011, I received a CD containing a set of documents produced
by plaintiff in this action in response to the second and third requests for production propounded
by defendant Cardinal Consulting, Inc. (hereinafter, “Plaintiff's Second Production”). Plaintiff’s
Second Production is Bates Stamped PA08000 — PA11197. In order to obtain these documents I
was required to execute a Protective Order, the most current true and correct copy of which I
know is attached hereto as Exhibit H, because some or all of them were subject to a Protective
Order issued in Jn re: 973 Market Associates, LLC, United States Bankruptcy Court for the
Northern District of California, San Francisco Division, Case No. 09-32014 DM 11 (the “973
Market Bankruptcy Action”).
RC1/6252946,1/DCC -3-
DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION
FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
Redwood City
11. Attached hereto as Exhibit I is a true and correct copy of the transcript of the
Bankruptcy Rule 2004 Examination (deposition) of Joe Cassidy, taken on December 8, 2009 in
the 973 Market Bankruptcy Action, and that was included within Plaintiff's Second Production as
PA08225 — PA08458. Copies of the face page, the Court Reporter's certification page, and pages
1-10, 12-13, 16, 24, 30-32, 35-36, 41-42, 44-52, 56-57, 66-68, 124-125, and 138-139 are included
within Exhibit I. This document states that it is designated “Confidential” pursuant to the
Protective Order issued by the Court in the 973 Market Bankruptcy Action.
12. Attached hereto as Exhibit J is a true and correct copy of the Limited Liability
Company Agreement of Performing Arts, LLC, dated as of June 18, 2009, that was included
within Plaintiff's First Production as PA 06164 ~ PA 06172. 1 am informed and believe that the
opening paragraph of Exhibit J states that Joe Cassidy is Plaintiff's sole member and Centrix is
Plaintiff's initial manager.
13. Attached hereto as Exhibit K is a true and correct copy of the Loan Purchase
Agreement between United Commercial Bank as Seller and Performing Arts, LLC as Purchaser,
dated as of June 25, 2009 (with only Exhibits 1 and 2 out of Exhibits 1 through 4 attached), that
was included within Plaintiff's First Production as PA 06000 — PA 06023. I am informed and
believe that Section 3 of Exhibit K states that Plaintiff paid $3.5 million for the UCB Loan.
14. Attached hereto as Exhibit L is a true and correct copy of a Trustee’s Deed Upon
Sale, dated January 26, 2010, pertaining to the real property located at 973 Market Street, San
Francisco, CA 94103 (the Premises), that was included within Plaintiff's First Production as
CTRL00000264 — CTRL00000270 (on the CD), although the stamps on the document state
“MAN000010” through “MAN000016.” I am informed and believe that Exhibit L is the deed
recording Plaintiff's ownership of the Premises, acquired after Plaintiff foreclosed on the UCB
Loan and deed of trust and purchased the Premises at the trustee sale..
15. Attached hereto as Exhibit M is a true and correct copy of the Complaint for
Damages for Breach of Written Guaranty filed by Plaintiff on November 19, 2009, in Performing
Arts, LLC v. Michael Murray, et al., San Francisco Superior Court Case No. CGC-09-494591. I
am informed and believe that attached as exhibits to that complaint are guarantees of the UCB
RC146252946. DCC -4-
DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION
FOR SUMMARY JUDGMENT ON PLAINTIFF'S COMPLAINTRopers Majeski Kohn & Bentley
A Professional Corporation
Redwood City
Bw oN
NOD
| Loan executed by seven members of 973 Market.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed this 9" day of December, 2011 at San Francisco,
California.
| Devin C. Courteau
RCI/6252946.1/DCC -5-
DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.”S MOTION
FOR SUMMARY JUDGMENT ON PLAINTIFFS COMPLAINTFad NS SE A no, cosn
REAR STEP! , lo. ry
LAW OFFICES OF GARY A. ANGEL Seok Ves
177 POST STREET, EIGHTH FLOOR
SAN FRANCISCO, CA 94108 on
TELEPHONE: (415) 788-5935 SEP 14 20
FACSIMILE: (415) 788-5958 SSP c
JEFFREY H. LOWENTHAL, CSB No,111763 Bo
STEYER LOWENTHAL BOODROOKAS oe
ALVAREZ & SMITH LLP
ONE CALIFORNIA STREET, THIRD FLOOR
SAN FRANCISCO, CA 94111
TELEPHONE: (415) 421-3400
FACSIMILE: (415) 421-2234
Attorneys for Plaintiff
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,
SECOND AMENDED COMPLAINT
Plaintiff, FOR DAMAGES
ve
KILLARNEY CONSTRUCTION CO.,
INC., MID-MARKET DEVELOPMENT
CO., INC., CARDINAL CONSULTING,
INC., CULLINANE CONSTRUCTION,
AL NORMAN MECHANICAL, INC.,
MICHAEL MURRAY, CONSTRUCTION
TESTING SERVICES, and DOES 1
THROUGH 200, inclusive,
Defendants.
Plaintiff PERFORMING ARTS, LLC alleges against defendants, and each of
them, the following:
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SECOND AMENDED COMPLAINT FOR DAMAGESoO PN Da HR wWN ow
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FIRST CAUSE OF ACTION
ie eept Cardinal Consulting Ine]
1. Plaintiff PERFORMING ARTS, LLC is a Delaware limited liability
company. Atall times alleged herein, plaintiff or its predecessors were the owners of
that certain real property commonly known as 973 Market Street, San Francisco,
California (the "Subject Property”). Plaintiff also is the assignee and successor in
interest by way of written agreements dated June 25, 2009 to the construction lender
for the project, United Commercial Bank, including any and all claims, tights, and
causes of action of said bank. The Subject Property (a multi-story, mixed use building)
was being renovated and retrofitted and otherwise subject to construction work
(hereinafter Construction-Related Activity) by or with the aid, contributions, materials,
and services of defendants named herein.
2. Defendants KILLARNEY CONSTRUCTION CO., INC., MID-MARKET
DEVELOPMENT CO., INC., CARDINAL CONSULTING, INC., CULLINANE
CONSTRUCTION, AL NORMAN MECHANICAL, INC., MICHAEL MURRAY, and
CONSTRUCTION TESTING SERVICES were at all times relevant hereto doing
business in San Francisco, Califomia. Said defendants, except for MICHAEL
MURRAY, an individual, are business entities, form unknown.
3. Piaintiff is informed and believes that at all times alleged herein,
defendants were at all time relevant involved in the Construction-Related Activity in
various capacities and in their respective capacities negligently caused or negligently
permitted the defective, substandard, illegal, unworkmanlike and negligent
Construction-Related Activity complained of below which proximately and legally
caused the damages to plaintiff as set forth below.
4, The true names and capacities, whether individual, corporate, associate
or otherwise, of defendants Does 1 through 200, inclusive, are presently unknown to
plaintiff, and plaintiff therefore sues said defendants by said fictitious names. Plaintiff is
informed and believes that each of the defendants designated herein as a fictitiously
2
SECOND AMENDED COMPLAINT FOR DAMAGES:aon Dm wm fF WH =
named defendant is in some manner responsible for the events and happenings herein
referred to and for plaintiff's damages resulting therefrom as herein alleged.
5. Plaintiff is informed and believes that Does 1 through 100 are design
professionals, contractors, subcontractors, and/or material suppliers who are
responsible for the defective work which was performed on the Subject Property.
6. Plaintiff is informed and believes that Does 101 through 140 are the alter
egos of the other defendants and were each the owner, shareholder, and/or promoter
of each of the other defendants. Plaintiff is informed and believes that there is such a
unity of interest and ownership between each of said defendants that such individuality
and separateness, if it ever existed, has ceased and each defendant is the alter ego of
the other defendants in that: 1) said defendants were a mere shell, sham and conduit,
without capital, assets, stock, or stockholders through which the other defendants
carried on their business, exercising complete control and dominance of such
businesses to such an extent that at all times herein mentioned they did not in fact exist
as separate entities; 2) said defendants were conceived, intended and used by the
other defendants as a device to avoid individual liability; 3) said defendants were
inadequately capitalized; 4) said defendants used and commingled the assets of each
of the other defendants and caused assets to be transferred between each other
without adequate consideration and transferred assets between each other in order to
evade payment of obligations to creditors; and 5) said defendants carried out the
business and activities alleged herein without directors’ or shareholders’ meetings and
without the maintenance of records, minutes or corporate proceedings.
7. Plaintiff is informed and believes that adherence to the fiction of the
separate existence of said defendants as entities distinct from the other defendants
would permit an abuse of the corporate privilege and would sanction fraud in that
plaintiff who, having acted without knowledge of the aforementioned, will be unable to
recover from the real perpetrators and instigators of the deceptive practices alleged
herein because defendants are hiding behind the veil of other defendants, which
3
SECOND AMENDED COMPLAINT FOR DAMAGESo ON OO A A WN @
mw NM NM NY NS NY NHN KH NY Se Be Sw SB SB ow ee Uo lO
oN O fF FF WH = OO WN DA BOR BA GS
plaintiff is informed and believes lack sufficient assets to compensate plaintiffs for its
damages.
8. Plaintiff is informed and believes that Does 141 through 175 are the
successors of each of the other defendants named herein and has assumed each of
the obligations and all liabilities of each of the remaining defendants in that: 1) each of
the defendants has expressly and/or impliedly agreed to assume the obligations and
liabilities of each of the other defendants; 2) each of the defendants has consolidated
and/or merged with the remaining defendants and is a continuation of each of the
temaining defendants; and 3) each of the defendants has fraudulently transferred
assets to the others for the purpose of escaping liability to creditors.
9. Plaintiff is informed and believes that at all times relevant hereto, each of
the defendants was the owner, agent, representative, servant, joint venturer, partner,
consultant and/or employee of each of the remaining defendants, and in doing or failing
to do the things herein mentioned, was acting within the course and scope of its
authority as such owner, agent, representative, servant, joint venturer, partner,
consultant and/or employee, with the permission, consent, approval, and ratification of
the other defendants.
10. Plaintiff is informed and believes that within the last three (3) years,
defendants, and each of them, designed, constructed, and/or supplied materials or
services to/for the Subject Property relative to the Construction-Related Activity.
11. Plaintiff is informed and believes that defendants, and each of them,
breached their duty of care, failed to exercise reasonable care, negligently failed to
comply with applicable building codes, negligently failed io provide services in a
workmanlike and professional fashion, and negligently failed to comply with the plans
and specifications in that they failed to properly design, plan, guard, protect, engineer,
supervise, inspect, investigate, prepare, provide services, provide materials to,
construct, renovate, monitor, and/or retrofit the Subject Property or otherwise
negligently contributed to the Construction-Related Activity, causing, among other
4
SECOND AMENDED COMPLAINT FOR DAMAGESoO OW NN DO HO BR W DH w
Ny Nw NM HM NS HB NH WB |= |= S&S mw mw mw BoB ow mw om
SNSkRBSRSSSRSRRSGHKRZS
things, the following defects, losses, and damages:
a. Improper concrete work;
b. Improper window installation and work;
Cc. Improper plumbing installation and work;
d. Improper design and execution of plans and designs;
e. Improper inspection;
f. Improper supervision and control of the Subject Property and
personal property located thereat or intended for use in the
Construction-Related Activity; and
g. General vandalism, theft, and malicious mischief at the Subject
Property.
12. Asa proximate and legal result of defendants’ negligence and
misconduct, the Subject Property and the work, services, and materials provided for the
Subject Property and the Construction-Related Activity thereat were and are defective,
below the standard of care, not reasonably fit for the intended purposes, and
unworkmaniike, and plaintiff has been, and continues to be damaged in an amount to
be proven at trial.
13. Asa further proximate and legal result of defendants’ negligence and
misconduct, plaintiff will incur and/or has incurred repair costs, relocation expenses,
loss of use, loss of rents and loss of market value in an amount to be proven at trial.
14. Asa further proximate and legal result of defendants’ negligence and
misconduct, plaintiff has been required to expend sums to investigate and make
temporary repairs to the Subject Property in an amount to be proven at trial.
SECOND CAUSE OF ACTION
[Breach of Contract — As Against Defendant Cardinal Consulting, Inc.]
15. Plaintiff incorporates and realleges as though set forth in whole, the
allegations of paragraphs 4 through 14 above.
18. Plaintiff's predecessor-in-interest, United Commercial Bank, was the
5
SECOND AMENDED COMPLAINT FOR DAMAGESoO 4+ Oo TO FR WwW NM A
fender for the subject construction work at the subject property, and it duly assigned to
plaintiff any and all rights said bank had with reference to the subject construction
project, including but not limited to any and all choses in action it had with reference to
said project.
17. Plaintiffs predecessor-in-interest, United Commercial Bank, entered inta a
consulting service master agreement with Cardinal Consulting, Inc. (a true and correct
copy of which is attached hereto as Exhibit 1 and incorporated by reference), whereby
Cardinal Consulting, Inc. agreed to perform and in fact did perform “Construction
Funding Inspection Reports” whereby Cardinal was obligated to inspect and report on
the work being performed at the construction site which teports served as a basis for
the bank to approve or reject the borrower's requests for the further funding of the
construction work, and whereby Cardinal would approve or reject payment requests of
the borrower in its reports to the bank. Cardinal agreed, represented, and warranted
that such services would be performed, findings obtained, and recommendations
Prepared in a good and workmanlike manner.
18. Plaintiff and its predecessor in interest, United Commercial Bank,
performed all its obligations under the contract, except those matters which it was
excused from performing.
19. Starting on or about September 13, 2007, defendant Cardinal breached
the contract by negligently performing its obligations under said contract, negligently
and wrongfully inspecting and reporting (and acted with gross negligence in its
inspection and reporting) of the progress being made at the construction site, and
negligently and/or in a grossly negligent fashion approved the borrower's application for
Payment under the bank’s construction loan, knowing full well that the bank was
reasonably relying on Cardinal to reasonably perform its duties under said contract, and
whereby Cardinal knew that the bank had engaged Cardinal to give its expertise as to
whether the construction work had been completed and performed in a fashion such
that additional funding would be appropriate by the bank. Cardinal knew of its duty,
6
SECOND AMENDED COMPLAINT FOR DAMAGES:On OD GA BF wWwNnN a
knew of the ramifications to the bank if it improperly performed its duties, and
notwithstanding such knowledge, negligently and in a grossly negligent fashion failed to
perform its duties, knowing full well that the bank was relying on it fo accurately and
properly perform its duties as a precursor to the bank authorizing continued funding for
the borrower for the project. Cardinal knew of the damages that would result to the
bank if it breached its contractual duties.
20. Asa direct, proximate, and legal result of the breaches of the contract due
to faulty and negligent inspection reports, including Cardinal's improper approval and
recommended approval of the borrower's payment requests, the bank continued fo fund
the construction, when in fact, had Cardinal acted in a reasonable and non-negligent
and proper fashion, and had Cardinal accurately and properly performed its inspections
and reported the status of construction, the bank would not have continued to extend
money to fund the construction, and the bank, and its successor, plaintiff herein, would
not have sustained the losses in an amount according to proof, but in excess of $11
million due fo the wrongful inspection and reporting by Cardinal.
21. As adirect, proximate, and legal result of Cardinal’s negligent and faulty
inspection, reporting, including Cardinal’s improper approval and recommended
approval of the borrower's payment requests to the bank, the bank, and thereby its
successor, plaintiff herein, was damaged and piaintiff, as successor-in-interest to the
bank, have been damaged in an amount according to proof, but in excess of $11
million.
THIRD CAUSE OF ACTION
[Negligence — As Against Defendant Cardinal Consulting, Inc.]
22. Plaintiff incorporates and realleges as if set forth in full, the allegations of
paragraphs 1 through 21 above.
23. Plaintiff's predecessor-in-interest, United Commercial Bank, was the
lender for the subject construction work at the subject property, and it duly assigned to
plaintiff any and ail rights said bank had with reference to the subject construction
Z
SECOND AMENDED COMPLAINT FOR DAMAGESoO oO nN OO TO F&F W HY A
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®N 8S FR BSRBRSSaeRSARFSRKRZAS
project, including but not limited ta any and all choses in action it had with reference to
said project.
24. ‘Plaintiffs predecessor-in-interest, United Commercial Bank, entered into a
consulting service master agreement with Cardinal Consulting, Inc. (a true anc correct
copy of which is attached hereto as Exhibit 1 and incorporated by reference) whereby
Cardinal Consulting, Inc. agreed to perform and in fact did perform “Construction
Funding Inspection Reports” whereby Cardinal was obligated to inspect and report on
the work being performed at the construction site, which reports served as a basis for
the bank to approve or reject the borrower’s requests for the further funding of the
construction work, and whereby Cardinal would approve and recommend for approval
or reject payment requests of the borrower in its reports to the bank.
25. — Starting on or about September 13, 2007, defendant Cardinal negligently
performed its obligations under said contract, negligently and wrongfully inspected and
teported (and acted with gross negligence in its inspection and teporting of) the
progress being made at the construction site, and negligently and/or in a grossly
negligent fashion approved the borrower's application for payment under the bank’s
construction loan knowing full well that the bank was reasonably relying on Cardinal to
reasonably perform its duties under said contract, and whereby Cardinal knew that the
bank had engaged Cardinal to give its expertise as to whether the construction work
had been completed and performed in a fashion such that additional funding would be
appropriate by the bank. Cardinal knew of its duty, knew of the ramifications to the
bank if it improperly performing its duties, and notwithstanding such knowledge,
negligently and in a grossly negligent fashion failed to perform its duties, knowing full
well that the bank was relying on it to accurately and properly perform its duties as a
Precursor to the bank authorizing continued funding for the borrower for the project.
26. Asa direct, proximate, and legal result of the faulty and negligent
inspection reports, including Cardinal's improper approva
Preview
MC SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Dec-09-2011 4:06 pm Case Number: CGC-10-498405 Filing Date: Dec-09-2011 4:05 Juke Box: 001 Image: 03415471 MOTION FOR SUMMARY JUDGMENT PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al 001003415471 Instructions: Please place this sheet on top of the document to be scanned.Ropers Majeski Kohn & Bentley A Professional Corporation San Francisco | JOHN G. DOOLING (SBN 154358) DEVIN C. COURTEAU (SBN 197505) i PERFORMING ARTS, LLC, I Plaintiff, v. KILLARNEY CONSTRUCTION CO., INC., ef al., | Defendants. AND RELATED CROSS-ACTIONS. ROPERS, MAJESKI, KOHN & BENTLEY 201 Spear Street, Suite 1000 } San Francisco, CA 94105-1667 6 L Telephone: (415) 543-4800 ranclsoe Cou J Facsimile: (415) 972-6301 iy Steerer Ca Email: jdooling@rmkb.com DEC ~ 9 214 dcourteau@rmkb.com CLE; Attorneys for Defendant and Cross-Complainant By: Fae oou | | CONSTRUCTION TESTING SERVICES, INC. Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO CASE NO. CGC-10-498405 CONSTRUCTION TESTING SERVICES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT Date: February 24, 2012 Time: 9:30 a.m. Dept.: 302 Honorable Harold E. Kahn Trial: March 26, 2012 TO: PLAINTIFF PERFORMING ARTS, LLC AND ITS COUNSEL OF RECORD, AND ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on February 24, 2012, 2012, at 9:30 a.m., or as soon thereafter as the matter may be heard, in Department 302 of this Court, located at 400 McAllister | Street, San Francisco, California 94102, defendant and cross-complainant CONSTRUCTION TESTING SERVICES, INC. (hereinafter “CTS”) will and hereby does move for summary judgment in CTS’s favor and against plaintiff Performing Arts, LLC (“Plaintiff”), regarding Plaintiff's Complaint, on the ground that Plaintiff lacks standing and/or is not a real party in | interest. RC16253227. DCC -l- CONSTRUCTION TESTING SERVICES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco. This Motion will be and is made pursuant to Code of Civil Procedure section 437¢, and is | based on this Notice, the Memorandum of Points & Authorities in Support of Construction | Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's Complaint, the Separate Statement of Undisputed Material Facts in Support of Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiffs Complaint, the Declaration of Devin C. Courteau in Support of Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's Complaint, the Declaration of James E. Doyle in Support of Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's Complaint, the Request for Judicial Notice in Support of Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's Complaint, and the [Proposed] Order Granting Construction Testing Services, Inc.*s Motion for i Summary Judgment on Plaintiff's Complaint, all filed concurrently herewith, as well as the | papers, files and documents within the Court’s file, and upon other such evidence and oral argument presented at the time of the hearing on this Motion. Dated: December 9, 2011 ROPERS, MAJESKI, KOHN & BENTLEY | Bys A De JOHN G. DOOLING } DEVIN C. COURTEAU Attorneys for Defendant and Cross- Complainant CONSTRUCTION TESTING SERVICES, INC. RC146253227. DCC -2- CONSTRUCTION TESTING SERVICES, INC.°S NOTICE OF MOTION AND MOTION FOR SUMMARY. JUDGMENT ON PLAINTIFF'S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation Redweoow City A \ » TANG NY e nA nA F Bw Ww 27 JOHN G. DOOLING (SBN 154358) DEVIN C. COURTEAU (SBN 197505) ROPERS, MAJESKI, KOHN & BENTLEY 201 Spear Street, Suite 1000 San Francisco, CA 94105-1667 Telephone: (415) 543-4800 Facsimile: (415) 972-6301 Email: jdooling@rmkb.com deourteau@rmkb.com Attorneys for Defendant and Cross-Complainant CONSTRUCTION TESTING SERVICES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PERFORMING ARTS, LLC, CASE NO. CGC-10-498405 Plaintiff, DECLARATION OF JAMES E. DOYLE IN SUPPORT OF CONSTRUCTION v. TESTING SERVICES, INC.’S MOTION FOR SUMMARY JUDGMENT ON KILLARNEY CONSTRUCTION CO., PLAINTIF¥F’S COMPLAINT INC.,, et al, Date: February 24, 2012 Defendants. Time: 9:30 a.m. Dept.: 302 Honorable Harold E. Kahn AND RELATED CROSS-ACTIONS Trial: March 26, 2012 I, James E. Doyle, declare as follows: 1 Tam a Project Manager for Construction Testing Services, Inc. (“CTS”), Asa Project Manager for CTS, my duties consist of reviewing the invoices for CTS projects on a monthly basis, based on the contractual rates, amounts and dates of service for CTS. Based on my duties with CTS, I have knowledge of the work CTS employees perform on its jobs, and regarding the work CTS performed with regard to the renovation and retrofit of 973 Market Street, San Francisco, California (the “Premises”). 2. If called as a witness, I could competently testify to the following facts, all of RC1/6252977.1/DCC -l- DECLARATION OF JAMES E. DOYLEIN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohw & Bentley A Professional Corporation Redwood City Co YW DH A Bw YB Se Be BP eRe Be BP ana A FB Bw N RP eo oN which are within my own personal knowledge, exccpt for those facts stated on information and belief, and as to those facts I believe them to be true. 3. In early to mid-2007, CTS was retained by general contractor, MidMarket Development Co., Inc. (“MidMarket”), on behalf of the owners of the Premises, 973 Market Associates, LLC (“973 Market”), to perform periodic special inspections and material testing on limited portions of the concrete and shotcrete work performed by other subcontractors. This was the only work CTS was retained to perform, and the only work CTS in fact did perform, at the Premises. 4. Because CTS performed limited periodic (not continuous) special inspections, its employees were not present at the Premises on a daily basis, and therefore did not observe all of the work performed by the concrete and shotcrete subcontractors. Instead, as intended by the { agreement between CTS and MidMarket, CTS personnel were only present at the Premises when { they were requested to be there by Midmarket. I am informed and believe that CTS personnel were present on the Premises for a total of thirty-one inspections. 5. CTS last performed any work regarding the Premises on or about November 5, 2007, after which CTS’s involvement with any and ali construction work at the Premises ended. In any event, ] am informed and believe that on March 19, 2008, 973 Market halted all construction activity at the Premises, and construction activity never resumed. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 9" day of December, 2011 at Pleasanton, California. RC1/6252077.1/0CC -2- DECLARATION OF JAMES E. DOYLE IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco JOHN G. DOOLING (SBN 154358) DEVIN C. COURTEAU (SBN 197505) ROPERS, MAJESKI, KOHN & BENTLEY 201 Spear Street, Suite 1000 San Francisco, CA 94105-1667 Telephone: (415) 543-4800 Facsimile: (415) 972-6301 Email: jdooling@rmkb.com dcourteau@rmkb.com Attorneys for Defendant and Cross-Complainant CONSTRUCTION TESTING SERVICES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PERFORMING ARTS, LLC, CASE NO. CGC-10-498405 Plaintiff, PROOF OF SERVICE vy. KILLARNEY CONSTRUCTION CO., INC., et al., Defendants. RC1/6254885.1/SH8 -l- PROOF OF SERVICERopers Majeski Kohn & Bentley A Professional Corporation San Francisco CASE NAME : PERFORMING ARTS v. KILLARNEY, et al. ACTION NO. : CGC 10-498405 PROOF OF SERVICE | METHOD OF SERVICE CO First Class Mail O Facsimile x Messenger Service Oo Overnight Delivery O1 E-Mail/Electronic Delivery | 1. Atthe time of service I was over 18 years of age and not a party to this action. 2. My business address is 201 Spear Street, Suite 1000, San Francisco, CA 94105-1667, Pp County of San Francisco. 3. On December 9, 2011, I served the following document(s): CONSTRUCTION TESTING SERVICES, INC’S NOTICE OF MOTION AND | MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF | CONSTRUCTION TESTING SERVICES, INC’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT; SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT; DECLARATION OF JAMES E. DOYLE IN SUPPORT OF CONSTRUCTION | TESTING SERVICES, INC’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS COMPLAINT; | DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT; REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT - REDACTED VERSION; SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S COMPLAINT - REDACTED VERSION DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT — REDACTED VERSION INDEX OF EXHIBITS SUBMITTED IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT; [PROPOSED] ORDER RC1/6254885.1/SH8 -1- SS | PROOF OF SERVICERopers Majeski Kohn & Bentley A Professional Corporation San Francisco, we ww | 4. Iserved the document(s) on the persons at the address below (along with their fax numbers and/or email addresses if service was by fax or email): Gary A. Angel, Esq. Frear Stephen Schmid, Esq. Law Offices of Gary A. Angel 177 Post Street, 8" Floor San Francisco, CA 94108 (415) 788-5935/FAX (415) 788-5958 Attorneys for Plaintiff PERFORMING ARTS, LLC Suzanne M. Martin, Esq. * Lewis Brisbois Bisgaard & Smith, LLP One Sansome Street, Suite 1400 San Francisco, CA 94104 (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. Paul Manasian, Esq. Manasian & Rougeau, LLP 400 Montgomery Street, Suite 1000 San Francisco, CA 94104 (415) 291-8425 x4/FAX (415) 291-8426 Attorneys for Defendants MICHAEL MURRAY and MID-MARKET DEVELOPMENT CO,, INC. Jeffrey H. Lowenthal, Esq. Steyer Lowenthal Boodrookas Alvarez, et al. One California Street, 3" Floor San Francisco, CA 94111 (415) 421-3400/FAX (415) 421-2234 Attorneys for Plaintiff PERFORMING ARTS, LLC Dion N, Cominos, Esq. Mark C. Russell, Esq. Olivia J. Bradbury, Esq. Gordon & Rees 275 Battery Street, Suite 2000 San Francisco, CA 94111 (415) 986-5900/FAX (415) 986-8054 Attomeys for Defendant CARDINAL CONSULTING, INC. 5. Iserved the document(s) by the following means: a. O By United States mail: I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses specified in item 4 and placed the envelope for collection and mailing, following our ordinary business practices. 1 am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it | is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid at the address listed in Paragraph 2 above. By overnight delivery: I enclosed the documents in an envelope or package provided by an overnight delivery carricr and addressed to the persons at the addresses in item 4. Iplaced the envelope or package for collection and overnight delivery at an office ora regularly utilized drop box of the overnight delivery carrier. By messenger: I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed in item 4 and providing them to a messenger for service. (Separate declaration of personal service to be provided by the messenger.) RC1/6254885.1/SH8 -2- PROOF OF SERVICERopers Majeski Kohn & Bentley A Professional Corpération San Francisco 1 d. O By fax transmission; Based on an agreement between the parties and in conformance with Rule 2.306, and/or as a courtesy, I faxed the documents to the persons at the fax 2 | numbers listed in item 4. No error was reported by the fax machine that I used. A copy of the record of the fax transmission is attached. 3 e. O By email or electronic transmission: Based on an agreement between the parties y gre P 4 and/or as a courtesy, I sent the documents to the persons at the email addresses listed in item 4. I did not receive, within a reasonable time after the transmission, 5 any electronic message or other indication that the transmission was unsuccessful. 6 | [declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, 7 | Date: December 9, 2011 8 9 | Sally J. Hamm Type Name 10 ll 12 | 13 | 14 15 16 17 18 19 20 21 | 22 } 23 24 25 26 27| 28 | RCI/6254885.1/SH8 -3- PROOF OF SERVICERopers Majeski Kohn & Bentley A Professional Corporation Redwood City | JOHN G. DOOLING (SBN 154358) DEVIN C. COURTEAU (SBN 197505) ROPERS, MAJESKI, KOHN & BENTLEY 201 Spear Street, Suite 1000 San Francisco, CA 94105-1667 Telephone: (415) 543-4800 Facsimile: (415) 972-6301 Email: idooling@rmkb.com | dcourteau@rmkb.com Attorneys for Defendant and Cross-Complainant ! CONSTRUCTION TESTING SERVICES, INC. PERFORMING ARTS, LLC, | Plaintiff, v. | KILLARNEY CONSTRUCTION CO., INC,, et al, Defendants. AND RELATED CROSS-ACTIONS San ‘J Codity Superior Court T ™ puty Clark SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO CASE NO. CGC-10-498405 INDEX OF EXHIBITS SUBMITTED IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’°S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT Date: February 24, 2012 Time: 9:30 a.m. Dept.: 302 Honorable Harold E. Kahn Trial: March 26, 2012 Document Exhibit Second Amended Complaint for Damages (“Complaint”) filed in this action on September 14, 2010 by Plaintiff Performing Arts, LLC (“Plaintiff”). Exhibit A to the Declaration of Devin C. Courteau in Support of Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's Complaint (“Courteau Decl.”). “Construction Loan Agreement” between United Commercial Bank (“UCB”) as lender Exhibit B to the Courteau Decl. RC1/6255259.1/DCC - DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS COMPLAINTRopers Majeski Kohn & Bentley A Prafessional Corporation Redwood City om NK WH and 973 Market Associates, LLC as borrower, re Loan No. 485 000 940-0 Letter, dated January 9, 2008, from Ronald Exhibit C to the Courteau Decl. Blum, MAI, a Certified General Real Estate Appraiser with Cameghi-Blum & Partners, Inc. Deed of Trust, Assignment of Rents, Fixture Exhibit D to the Courteau Decl. Filing and Security Agreement; Request for Notice Letter, dated March 19, 2008, from the Exhibit E to the Courteau Decl. members of 973 Market Street Associate, LLC (“973 Market”) Letter, dated August 21, 2008, from Tony Exhibit F to the Courteau Decl. Manning, Manager of 973 Market Facsimile, dated November 14, 2008, from Exhibit G to the Courteau Decl. Tracy McCarthy of Centrix Builders Inc. (“Centrix”) to Tony Manny of 973 Market Stipulation re Protective Order in this action Exhibit H to the Courteau Decl. Transcript of the Bankruptcy Rule 2004 Exhibit I to the Courteau Decl. Examination (deposition) of Joe Cassidy, taken on December 8, 2009 in Jn re: 973 Market Associates, LLC, United States Bankruptcy Court for the Northem District of California, San Francisco Division, Case No. 09-32014 DM 11. Limited Liability Company Agreement of Exhibit J to the Courteau Decl. Performing Arts, LLC, dated as of June 18, 2009 RC1/6255259, JDCC -2- DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation Redwood City Loan Purchase Agreement between United Commercial Bank as Seller and Performing Arts, LLC as Purchaser, dated as of June 25, 2009 Exhibit K to the Courteau Decl. Trustee’s Deed Upon Sale, dated January 26, 2010 Exhibit L to the Courteau Decl. Complaint for Damages for Breach of Written Guaranty filed by Plaintiff on November 19, 2009, in Performing Arts, LLC v. Michael Murray, et al., San Francisco Superior Court Case No. CGC-09-494591 Exhibit M to the Courteau Decl. Dated: December 9, 2011 By: RC1/6255259.1/DCC ROPERS, MAJESKI, KOHN & BENTLEY JOHN G. DOOLING DEVIN C. COURTEAU Attorneys for Defendant and Cross-Complainant CONSTRUCTION TESTING SERVICES, INC. -3- DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC."S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco JOHN G. DOOLING (SBN 154358) DEVIN C. COURTEAU (SBN 197505) ROPERS, MAJESKI, KOHN & BENTLEY 201 Spear Street, Suite 1000 San Francisco, CA 94105-1667 Telephone: (415) 543-4800 Facsimile: (415) 972-6301 Email: jdooling@rmkb.com dcourteau@smkb.com Attorneys for Defendant and Cross-Complainant CONSTRUCTION TESTING SERVICES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PERFORMING ARTS, LLC, Plaintiff, v. KILLARNEY CONSTRUCTION CO., INC., et al, Defendants. AND RELATED CROSS-ACTIONS CASE NO. CGC-10-498405 INDEX OF EXHIBITS SUBMITTED IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.“S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT Date: February 24, 2012 Time: 9:30 a.m. Dept.: 302 Honorable Harold E. Kahn Trial: March 26, 2012 Document Exhibit Second Amended Complaint for Damages (“Complaint”) filed in this action on September 14, 2010 by Plaintiff Performing Arts, LLC (“Plaintiff”). Exhibit A to the Declaration of Devin C. Courteau in Support of Construction Testing Services, Inc.’s Motion for Summary Judgment on Plaintiff's Complaint (“Courteau Decl.”). “Construction Loan Agreement” between United Commercial Bank (“UCB”) as lender Exhibit B to the Courteau Decl. RCI6255259.1/CC - INDEX OF EXHIBITS SUBMITTED IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.°S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation San Francisco and 973 Market Associates, LLC as borrower, re Loan No. 485 000 940-0 Letter, dated January 9, 2008, from Ronald Blum, MAI, a Certified General Real Estate Appraiser with Carneghi-Blum & Partners, Inc. Exhibit C to the Courteau Decl. Deed of Trust, Assignment of Rents, Fixture Filing and Security Agreement; Request for Notice Exhibit D to the Courteau Decl. Letter, dated March 19, 2008, from the members of 973 Market Street Associate, LLC (“973 Market”) Exhibit E to the Courteau Decl. Letter, dated August 21, 2008, from Tony Manning, Manager of 973 Market Exhibit F to the Courteau Decl. Facsimile, dated November 14, 2008, from Tracy McCarthy of Centrix Builders Inc. (“Centrix”) to Tony Manny of 973 Market Exhibit G to the Courteau Decl. Stipulation re Protective Order in this action Exhibit H to the Courteau Decl. Transcript of the Bankruptcy Rule 2004 Examination (deposition) of Joe Cassidy, taken on December 8, 2009 in In re: 973 Market Associates, LLC, United States Bankruptcy Court for the Northern District of California, San Francisco Division, Case No. 09-32014 DM il. Exhibit I to the Courteau Decl. Limited Liability Company Agreement of Performing Arts, LLC, dated as of June 18, 2009 Exhibit J to the Courteau Decl. RCI/6255259./DCC -2- INDEX OF EXHIBITS SUBMITTED IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION FOR. SUMMARY JUDGMENT ON PLAINTIFF*S COMPLAINTRopers Majeski Kohn & Bentley A Prefessionai Corporation San Francisco Loan Purchase Agreement between United Commercial Bank as Seller and Performing Arts, LLC as Purchaser, dated as of June 25, 2009 Exhibit K to the Courteau Decl. Trustee’s Deed Upon Sale, dated January 26, 2010 Exhibit L to the Courteau Decl. Complaint for Damages for Breach of Written Guaranty filed by Plaintiff on November 19, 2009, in Performing Arts, LLC v. Michael Murray, et al., San Francisco Superior Court Case No. CGC-09-494591 Exhibit M to the Courteau Decl. Dated: December 9, 2011 RC1/6255239. DCC ROPERS, MAJESKI, KOHN & BENTLEY op LE JOHN G. DOOLING DEVIN C. COURTEAU Attomeys for Defendant and Cross-Complainant CONSTRUCTION TESTING SERVICES, INC. -3- INDEX OF EXHIBITS SUBMITTED IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.*S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentiey A Professional Corporation Redwood City JOHN G. DOOLING (SBN 154358) DEVIN C. COURTEAU (SBN 197505) ROPERS, MAJESKI, KOHN & BENTLEY 201 Spear Street, Suite 1000 San Francisco, CA 94105-1667 Telephone: (415) 543-4800 Facsimile: (415) 972-6301 & Email: jdooling@rmkb.com deourteau@rmkb.com Attomeys for Defendant and Cross-Complainant CONSTRUCTION TESTING SERVICES, INC. San Frangise ‘Courty E | Court Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PERFORMING ARTS, LLC, CASE NO. CGC-10-498405 Plaintiff, REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CONSTRUCTION Vv. TESTING SERVICES, INC.’S MOTION FOR SUMMARY JUDGMENT ON KILLARNEY CONSTRUCTION CO., PLAINTLFF’S COMPLAINT INC., ef al., Date: February 24, 2012 Defendants. Time: 9:30 a.m. Dept.: 302 Honorable Harold E. Kahn AND RELATED CROSS-ACTIONS Trial: March 26, 2012 Defendant and cross-complainant CONSTRUCTION TESTING SERVICES, INC. (“CTS”) respectfully request Judicial Notice be taken, pursuant to Evidence Code §§ 452 and 453, of the following: 1. The Second Amended Complaint for Damages filed in this action by plaintiff Performing Arts, LLC (“Plaintiff”) on September 14, 2010, a copy of which is attached as Exhibit A to the Declaration of Devin C. Courteau in Support of Construction Testing Services, Inc.’s Motion for Summary Judgment (“Courteau Declaration”), filed concurrently with this document; and RC1/6252945.1/DCC -1- REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT,Ropers Majeski Kohn & Bentley A Professional Corporation Redwood City nA WwW #z 2, The Complaint for Damages for Breach of Written Guaranty filed by Plaintiff on November 19, 2009, in Performing Arts, LLC v. Michael Murray, et al., San Francisco Superior Court Case No. CGC-09-494591, a copy of which is attached as Exhibit M to the Courteau Declaration. Dated: December 9, 2011 ROPERS, MAJESKI, KOHN & BENTLEY en JOHN G. DOOLING DEVIN C. COURTEAU Attorneys for Defendant and Cross-Complainant CONSTRUCTION TESTING SERVICES, INC. REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.°S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT. | RC1/6252945. DCC -2-Ropers Majeski Kohn & Bentley A Professional Corporation Redwoed City a Dw JOHN G. DOOLING (SBN 154358) DEVIN C. COURTEAU (SBN 197505) ROPERS, MAJESKI, KOHN & BENTLEY 201 Spear Street, Suite 1000 San Francisco, CA 94105-1667 Telephone: (415) 543-4800 Facsimile: (415) 972-6301 Email: jdooling@rmkb.com dceourteau@rmkb.com Attomeys for Defendant and Cross-Complainant CONSTRUCTION TESTING SERVICES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PERFORMING ARTS, LLC, CASE NO. CGC-10-498405 Plaintiff, DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF v. CONSTRUCTION TESTING SERVICES, INC.’S MOTION FOR SUMMARY KILLARNEY CONSTRUCTION CO., JUDGMENT ON PLAINTIFF'S INC., et al., COMPLAINT Defendants. Date: February 24, 2012 Time: 9:30 a.m. Dept.: 302 Honorable Harold E. Kahn AND RELATED CROSS-ACTIONS Trial: March 26, 2012 I, Devin C. Courteau, declare as follows: 1. Jam an attorney licensed to practice by the State of California, and am with the law firm Ropers, Majeski, Kohn & Bentley, attorneys of record for defendant and cross- complainant Construction Testing Services, Inc. (“CTS”) in the above-referenced matter. ] have personal knowledge of the matters stated in this declaration, except as to those matters stated on information and belief, and as to those matters I believe them to be true, and could so testify as a witness. RC1/6252946. DCC -1- DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC."S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINT.Ropers Majeski Kohn & Bentley A Professional Corporation Redwood City 2. Attached hereto as Exhibit A is a true and correct copy of the Second Amended Complaint for Damages (“Complaint”) filed in this action on September 14, 2010 by Plaintiff Performing Arts, LLC (“Plaintiff”). 3. On August 22, 2011, I received a CD containing the documents produced by plaintiff in this action in response to requests for production propounded by defendant Cardinal Consulting, Inc. (hereinafter, “Plaintiff's First Production”). Plaintiff's First Production is Bates Stamped PA 00001 — PA 06243, CTRL00000001 — CTRL00002816, and includes an additional 1,200 pages of documents that are not Bates Stamped. 4. Attached hereto as Exhibit B is a true and correct copy of a “Construction Loan Agreement” between United Commercial Bank (“UCB”) as lender and 973 Market Associates, LLC (“973 Market”) as borrower, with Loan No. 485 000 940-0 (hereinafter the “UCB Loan”), that was included within Plaintiff's First Production as PA 06078 — PA 06148. | am informed and believe that Exhibit B is the construction loan entered into between UCB and 973 Market regarding the renovation and retrofit of 973 Market Street, San Francisco, California (the “Premises”). 3. Attached hereto as Exhibit C is a true and correct copy of a letter, dated January 9, 2008, from Ronald Blum, MAI, a Certified General Real Estate Appraiser with Carneghi-Blum & Partners, Inc., that was included within Plaintiff's First Production as part of an un-Bates Stamped document entitled: “Appraisal of: 973 — 977 Market Street, San Francisco, California Proposed Loan #4850009400.” As shown by Exhibit B, the UCB Loan was loan number 4850009400. I am informed and believe that Exhibit C states that, as of December 17, 2008, the Premises was worth $8.5 million in its “as is” condition. 6. Attached hereto as Exhibit D is a true and correct copy of a “Deed of Trust, Assignment of Rents, Fixture Filing and Security Agreement; Request for Notice,” that was included within Plaintiff's First Production as PA 06060 — PA 06077. I am informed and believe that Exhibit D is the deed of trust executed by 973 Market for the benefit of UCB to secure the UCB Loan, 7. Attached hereto as Exhibit E is a true and correct copy of a letter, dated March 19, RC16252946.1/D0C -2- DECLARATION OF DEVIN C, COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation Redwood City wn 2008, from the members of 973 Market to “Mike,” whom I am informed and believe is defendant Mike Murray, that was included within Plaintiff's First Production as CTRL00000426 (on the CD), although the stamp on the document states “MAN000172.” I am informed and believe that Exhibit E is a letter pursuant to which 973 Markct notified its general contractor that construction must cease at the Premises. 8. Attached hereto as Exhibit F is a true and correct copy ofa letter, dated August 21, 2008, from Tony Manning, Manager of 973 Market, to defendant Michael Murray, of defendant MidMarket Development Co., Inc., that was included within Plaintiff's First Production as PA 01282 — PA 01285. I am informed and believe that Exhibit F is the letter by which 973 Market terminated MidMarket and Mr. Murray as general contractor for the construction project at the Premises. 9. Attached hereto as Exhibit G is a true and correct copy of a facsimile, dated November 14, 2008, from Tracy McCarthy of Centrix Builders Inc. (“Centrix”) to Tony Manny of 973 Market, which attaches to it an invoice of the same date to 973 Market, which in tum attaches to it a Consultancy Agreement, dated October 3, 2008, between Centrix and 973 Market. This document was included within Plaintiff's First Production as CTRL00000014 — CTRL00000017 (on the CD), although the documents themselves do not have Bates Stamps. I am informed and believe that Exhibit G is Centrix’s agreement to inspect the Premises and prepare a bid and/or estimate to complete the project, in exchange for payment of $20,000. 10. On November 22, 2011, I received a CD containing a set of documents produced by plaintiff in this action in response to the second and third requests for production propounded by defendant Cardinal Consulting, Inc. (hereinafter, “Plaintiff's Second Production”). Plaintiff’s Second Production is Bates Stamped PA08000 — PA11197. In order to obtain these documents I was required to execute a Protective Order, the most current true and correct copy of which I know is attached hereto as Exhibit H, because some or all of them were subject to a Protective Order issued in Jn re: 973 Market Associates, LLC, United States Bankruptcy Court for the Northern District of California, San Francisco Division, Case No. 09-32014 DM 11 (the “973 Market Bankruptcy Action”). RC1/6252946,1/DCC -3- DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation Redwood City 11. Attached hereto as Exhibit I is a true and correct copy of the transcript of the Bankruptcy Rule 2004 Examination (deposition) of Joe Cassidy, taken on December 8, 2009 in the 973 Market Bankruptcy Action, and that was included within Plaintiff's Second Production as PA08225 — PA08458. Copies of the face page, the Court Reporter's certification page, and pages 1-10, 12-13, 16, 24, 30-32, 35-36, 41-42, 44-52, 56-57, 66-68, 124-125, and 138-139 are included within Exhibit I. This document states that it is designated “Confidential” pursuant to the Protective Order issued by the Court in the 973 Market Bankruptcy Action. 12. Attached hereto as Exhibit J is a true and correct copy of the Limited Liability Company Agreement of Performing Arts, LLC, dated as of June 18, 2009, that was included within Plaintiff's First Production as PA 06164 ~ PA 06172. 1 am informed and believe that the opening paragraph of Exhibit J states that Joe Cassidy is Plaintiff's sole member and Centrix is Plaintiff's initial manager. 13. Attached hereto as Exhibit K is a true and correct copy of the Loan Purchase Agreement between United Commercial Bank as Seller and Performing Arts, LLC as Purchaser, dated as of June 25, 2009 (with only Exhibits 1 and 2 out of Exhibits 1 through 4 attached), that was included within Plaintiff's First Production as PA 06000 — PA 06023. I am informed and believe that Section 3 of Exhibit K states that Plaintiff paid $3.5 million for the UCB Loan. 14. Attached hereto as Exhibit L is a true and correct copy of a Trustee’s Deed Upon Sale, dated January 26, 2010, pertaining to the real property located at 973 Market Street, San Francisco, CA 94103 (the Premises), that was included within Plaintiff's First Production as CTRL00000264 — CTRL00000270 (on the CD), although the stamps on the document state “MAN000010” through “MAN000016.” I am informed and believe that Exhibit L is the deed recording Plaintiff's ownership of the Premises, acquired after Plaintiff foreclosed on the UCB Loan and deed of trust and purchased the Premises at the trustee sale.. 15. Attached hereto as Exhibit M is a true and correct copy of the Complaint for Damages for Breach of Written Guaranty filed by Plaintiff on November 19, 2009, in Performing Arts, LLC v. Michael Murray, et al., San Francisco Superior Court Case No. CGC-09-494591. I am informed and believe that attached as exhibits to that complaint are guarantees of the UCB RC146252946. DCC -4- DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S COMPLAINTRopers Majeski Kohn & Bentley A Professional Corporation Redwood City Bw oN NOD | Loan executed by seven members of 973 Market. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 9" day of December, 2011 at San Francisco, California. | Devin C. Courteau RCI/6252946.1/DCC -5- DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF CONSTRUCTION TESTING SERVICES, INC.”S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS COMPLAINTFad NS SE A no, cosn REAR STEP! , lo. ry LAW OFFICES OF GARY A. ANGEL Seok Ves 177 POST STREET, EIGHTH FLOOR SAN FRANCISCO, CA 94108 on TELEPHONE: (415) 788-5935 SEP 14 20 FACSIMILE: (415) 788-5958 SSP c JEFFREY H. LOWENTHAL, CSB No,111763 Bo STEYER LOWENTHAL BOODROOKAS oe ALVAREZ & SMITH LLP ONE CALIFORNIA STREET, THIRD FLOOR SAN FRANCISCO, CA 94111 TELEPHONE: (415) 421-3400 FACSIMILE: (415) 421-2234 Attorneys for Plaintiff 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, SECOND AMENDED COMPLAINT Plaintiff, FOR DAMAGES ve KILLARNEY CONSTRUCTION CO., INC., MID-MARKET DEVELOPMENT CO., INC., CARDINAL CONSULTING, INC., CULLINANE CONSTRUCTION, AL NORMAN MECHANICAL, INC., MICHAEL MURRAY, CONSTRUCTION TESTING SERVICES, and DOES 1 THROUGH 200, inclusive, Defendants. Plaintiff PERFORMING ARTS, LLC alleges against defendants, and each of them, the following: Wt it SECOND AMENDED COMPLAINT FOR DAMAGESoO PN Da HR wWN ow NM NN NY RY Be we we a ao en an nw FIRST CAUSE OF ACTION ie eept Cardinal Consulting Ine] 1. Plaintiff PERFORMING ARTS, LLC is a Delaware limited liability company. Atall times alleged herein, plaintiff or its predecessors were the owners of that certain real property commonly known as 973 Market Street, San Francisco, California (the "Subject Property”). Plaintiff also is the assignee and successor in interest by way of written agreements dated June 25, 2009 to the construction lender for the project, United Commercial Bank, including any and all claims, tights, and causes of action of said bank. The Subject Property (a multi-story, mixed use building) was being renovated and retrofitted and otherwise subject to construction work (hereinafter Construction-Related Activity) by or with the aid, contributions, materials, and services of defendants named herein. 2. Defendants KILLARNEY CONSTRUCTION CO., INC., MID-MARKET DEVELOPMENT CO., INC., CARDINAL CONSULTING, INC., CULLINANE CONSTRUCTION, AL NORMAN MECHANICAL, INC., MICHAEL MURRAY, and CONSTRUCTION TESTING SERVICES were at all times relevant hereto doing business in San Francisco, Califomia. Said defendants, except for MICHAEL MURRAY, an individual, are business entities, form unknown. 3. Piaintiff is informed and believes that at all times alleged herein, defendants were at all time relevant involved in the Construction-Related Activity in various capacities and in their respective capacities negligently caused or negligently permitted the defective, substandard, illegal, unworkmanlike and negligent Construction-Related Activity complained of below which proximately and legally caused the damages to plaintiff as set forth below. 4, The true names and capacities, whether individual, corporate, associate or otherwise, of defendants Does 1 through 200, inclusive, are presently unknown to plaintiff, and plaintiff therefore sues said defendants by said fictitious names. Plaintiff is informed and believes that each of the defendants designated herein as a fictitiously 2 SECOND AMENDED COMPLAINT FOR DAMAGES:aon Dm wm fF WH = named defendant is in some manner responsible for the events and happenings herein referred to and for plaintiff's damages resulting therefrom as herein alleged. 5. Plaintiff is informed and believes that Does 1 through 100 are design professionals, contractors, subcontractors, and/or material suppliers who are responsible for the defective work which was performed on the Subject Property. 6. Plaintiff is informed and believes that Does 101 through 140 are the alter egos of the other defendants and were each the owner, shareholder, and/or promoter of each of the other defendants. Plaintiff is informed and believes that there is such a unity of interest and ownership between each of said defendants that such individuality and separateness, if it ever existed, has ceased and each defendant is the alter ego of the other defendants in that: 1) said defendants were a mere shell, sham and conduit, without capital, assets, stock, or stockholders through which the other defendants carried on their business, exercising complete control and dominance of such businesses to such an extent that at all times herein mentioned they did not in fact exist as separate entities; 2) said defendants were conceived, intended and used by the other defendants as a device to avoid individual liability; 3) said defendants were inadequately capitalized; 4) said defendants used and commingled the assets of each of the other defendants and caused assets to be transferred between each other without adequate consideration and transferred assets between each other in order to evade payment of obligations to creditors; and 5) said defendants carried out the business and activities alleged herein without directors’ or shareholders’ meetings and without the maintenance of records, minutes or corporate proceedings. 7. Plaintiff is informed and believes that adherence to the fiction of the separate existence of said defendants as entities distinct from the other defendants would permit an abuse of the corporate privilege and would sanction fraud in that plaintiff who, having acted without knowledge of the aforementioned, will be unable to recover from the real perpetrators and instigators of the deceptive practices alleged herein because defendants are hiding behind the veil of other defendants, which 3 SECOND AMENDED COMPLAINT FOR DAMAGESo ON OO A A WN @ mw NM NM NY NS NY NHN KH NY Se Be Sw SB SB ow ee Uo lO oN O fF FF WH = OO WN DA BOR BA GS plaintiff is informed and believes lack sufficient assets to compensate plaintiffs for its damages. 8. Plaintiff is informed and believes that Does 141 through 175 are the successors of each of the other defendants named herein and has assumed each of the obligations and all liabilities of each of the remaining defendants in that: 1) each of the defendants has expressly and/or impliedly agreed to assume the obligations and liabilities of each of the other defendants; 2) each of the defendants has consolidated and/or merged with the remaining defendants and is a continuation of each of the temaining defendants; and 3) each of the defendants has fraudulently transferred assets to the others for the purpose of escaping liability to creditors. 9. Plaintiff is informed and believes that at all times relevant hereto, each of the defendants was the owner, agent, representative, servant, joint venturer, partner, consultant and/or employee of each of the remaining defendants, and in doing or failing to do the things herein mentioned, was acting within the course and scope of its authority as such owner, agent, representative, servant, joint venturer, partner, consultant and/or employee, with the permission, consent, approval, and ratification of the other defendants. 10. Plaintiff is informed and believes that within the last three (3) years, defendants, and each of them, designed, constructed, and/or supplied materials or services to/for the Subject Property relative to the Construction-Related Activity. 11. Plaintiff is informed and believes that defendants, and each of them, breached their duty of care, failed to exercise reasonable care, negligently failed to comply with applicable building codes, negligently failed io provide services in a workmanlike and professional fashion, and negligently failed to comply with the plans and specifications in that they failed to properly design, plan, guard, protect, engineer, supervise, inspect, investigate, prepare, provide services, provide materials to, construct, renovate, monitor, and/or retrofit the Subject Property or otherwise negligently contributed to the Construction-Related Activity, causing, among other 4 SECOND AMENDED COMPLAINT FOR DAMAGESoO OW NN DO HO BR W DH w Ny Nw NM HM NS HB NH WB |= |= S&S mw mw mw BoB ow mw om SNSkRBSRSSSRSRRSGHKRZS things, the following defects, losses, and damages: a. Improper concrete work; b. Improper window installation and work; Cc. Improper plumbing installation and work; d. Improper design and execution of plans and designs; e. Improper inspection; f. Improper supervision and control of the Subject Property and personal property located thereat or intended for use in the Construction-Related Activity; and g. General vandalism, theft, and malicious mischief at the Subject Property. 12. Asa proximate and legal result of defendants’ negligence and misconduct, the Subject Property and the work, services, and materials provided for the Subject Property and the Construction-Related Activity thereat were and are defective, below the standard of care, not reasonably fit for the intended purposes, and unworkmaniike, and plaintiff has been, and continues to be damaged in an amount to be proven at trial. 13. Asa further proximate and legal result of defendants’ negligence and misconduct, plaintiff will incur and/or has incurred repair costs, relocation expenses, loss of use, loss of rents and loss of market value in an amount to be proven at trial. 14. Asa further proximate and legal result of defendants’ negligence and misconduct, plaintiff has been required to expend sums to investigate and make temporary repairs to the Subject Property in an amount to be proven at trial. SECOND CAUSE OF ACTION [Breach of Contract — As Against Defendant Cardinal Consulting, Inc.] 15. Plaintiff incorporates and realleges as though set forth in whole, the allegations of paragraphs 4 through 14 above. 18. Plaintiff's predecessor-in-interest, United Commercial Bank, was the 5 SECOND AMENDED COMPLAINT FOR DAMAGESoO 4+ Oo TO FR WwW NM A fender for the subject construction work at the subject property, and it duly assigned to plaintiff any and all rights said bank had with reference to the subject construction project, including but not limited to any and all choses in action it had with reference to said project. 17. Plaintiffs predecessor-in-interest, United Commercial Bank, entered inta a consulting service master agreement with Cardinal Consulting, Inc. (a true and correct copy of which is attached hereto as Exhibit 1 and incorporated by reference), whereby Cardinal Consulting, Inc. agreed to perform and in fact did perform “Construction Funding Inspection Reports” whereby Cardinal was obligated to inspect and report on the work being performed at the construction site which teports served as a basis for the bank to approve or reject the borrower's requests for the further funding of the construction work, and whereby Cardinal would approve or reject payment requests of the borrower in its reports to the bank. Cardinal agreed, represented, and warranted that such services would be performed, findings obtained, and recommendations Prepared in a good and workmanlike manner. 18. Plaintiff and its predecessor in interest, United Commercial Bank, performed all its obligations under the contract, except those matters which it was excused from performing. 19. Starting on or about September 13, 2007, defendant Cardinal breached the contract by negligently performing its obligations under said contract, negligently and wrongfully inspecting and reporting (and acted with gross negligence in its inspection and reporting) of the progress being made at the construction site, and negligently and/or in a grossly negligent fashion approved the borrower's application for Payment under the bank’s construction loan, knowing full well that the bank was reasonably relying on Cardinal to reasonably perform its duties under said contract, and whereby Cardinal knew that the bank had engaged Cardinal to give its expertise as to whether the construction work had been completed and performed in a fashion such that additional funding would be appropriate by the bank. Cardinal knew of its duty, 6 SECOND AMENDED COMPLAINT FOR DAMAGES:On OD GA BF wWwNnN a knew of the ramifications to the bank if it improperly performed its duties, and notwithstanding such knowledge, negligently and in a grossly negligent fashion failed to perform its duties, knowing full well that the bank was relying on it fo accurately and properly perform its duties as a precursor to the bank authorizing continued funding for the borrower for the project. Cardinal knew of the damages that would result to the bank if it breached its contractual duties. 20. Asa direct, proximate, and legal result of the breaches of the contract due to faulty and negligent inspection reports, including Cardinal's improper approval and recommended approval of the borrower's payment requests, the bank continued fo fund the construction, when in fact, had Cardinal acted in a reasonable and non-negligent and proper fashion, and had Cardinal accurately and properly performed its inspections and reported the status of construction, the bank would not have continued to extend money to fund the construction, and the bank, and its successor, plaintiff herein, would not have sustained the losses in an amount according to proof, but in excess of $11 million due fo the wrongful inspection and reporting by Cardinal. 21. As adirect, proximate, and legal result of Cardinal’s negligent and faulty inspection, reporting, including Cardinal’s improper approval and recommended approval of the borrower's payment requests to the bank, the bank, and thereby its successor, plaintiff herein, was damaged and piaintiff, as successor-in-interest to the bank, have been damaged in an amount according to proof, but in excess of $11 million. THIRD CAUSE OF ACTION [Negligence — As Against Defendant Cardinal Consulting, Inc.] 22. Plaintiff incorporates and realleges as if set forth in full, the allegations of paragraphs 1 through 21 above. 23. Plaintiff's predecessor-in-interest, United Commercial Bank, was the lender for the subject construction work at the subject property, and it duly assigned to plaintiff any and ail rights said bank had with reference to the subject construction Z SECOND AMENDED COMPLAINT FOR DAMAGESoO oO nN OO TO F&F W HY A nN MY NN NY N NH NH BS |B |B wow a eo oa an ow ®N 8S FR BSRBRSSaeRSARFSRKRZAS project, including but not limited ta any and all choses in action it had with reference to said project. 24. ‘Plaintiffs predecessor-in-interest, United Commercial Bank, entered into a consulting service master agreement with Cardinal Consulting, Inc. (a true anc correct copy of which is attached hereto as Exhibit 1 and incorporated by reference) whereby Cardinal Consulting, Inc. agreed to perform and in fact did perform “Construction Funding Inspection Reports” whereby Cardinal was obligated to inspect and report on the work being performed at the construction site, which reports served as a basis for the bank to approve or reject the borrower’s requests for the further funding of the construction work, and whereby Cardinal would approve and recommend for approval or reject payment requests of the borrower in its reports to the bank. 25. — Starting on or about September 13, 2007, defendant Cardinal negligently performed its obligations under said contract, negligently and wrongfully inspected and teported (and acted with gross negligence in its inspection and teporting of) the progress being made at the construction site, and negligently and/or in a grossly negligent fashion approved the borrower's application for payment under the bank’s construction loan knowing full well that the bank was reasonably relying on Cardinal to reasonably perform its duties under said contract, and whereby Cardinal knew that the bank had engaged Cardinal to give its expertise as to whether the construction work had been completed and performed in a fashion such that additional funding would be appropriate by the bank. Cardinal knew of its duty, knew of the ramifications to the bank if it improperly performing its duties, and notwithstanding such knowledge, negligently and in a grossly negligent fashion failed to perform its duties, knowing full well that the bank was relying on it to accurately and properly perform its duties as a Precursor to the bank authorizing continued funding for the borrower for the project. 26. Asa direct, proximate, and legal result of the faulty and negligent inspection reports, including Cardinal's improper approva