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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Nov-18-2011 2:25 pm
Case Number: CGC-10-498405
Filing Date: Nov-18-2011 2:24
Juke Box: 001 Image: 03391887
LICATION FOR APPROVAL OF COMPLEX LITIGATION DESIGNA]
PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al
001C03391887
Instructions:
Please place this sheet on top of the document to be scanned.Ropers Majeski Kohn & Bentley
A Professional Corporation
Redwood City
oOo em ID
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JOHN G. DOOLING (SBN 154358) - .
DEVIN C. COURTEAU (SBN 197505) qe Supt Ato a
ROPERS, MAJESKI, KOHN & BENTLEY Cie eT RON
201 Spear Street, Suite 1000 ee
San Francisco, CA. 94105-1667 NOV 78 2011
Telephone: (415) 543-4800
Facsimile: (415) 972-6301 CLERK OF THE COU
Email: jdooling@rmkb.com py_‘May Qe AT
dcourteau@rmkb.com Deputy Clerk
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, NOTICE OF MOTION AND MOTION TO
ASSIGN ACTION TO COMPLEX
v. LITIGATION PROGRAM;
MEMORANDUM OF POINTS AND
KILLARNEY CONSTRUCTION CO., AUTHORITIES IN SUPPORT THEREOF
INC., et al.,
CASE NO, CGC-10-498405
Date: December 20, 2011
Defendants. Time: 9:30 a.m.
Dept.: 206
Trial: March 26, 2012
AND RELATED CROSS-ACTIONS
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE that on December 20, 2011 at 9:30 a.m., or as soon thereafter as
may be heard in the above entitled Court, located at 400 McAllister Street, San Francisco,
California 94102, in Department 304, defendant CONSTRUCTION TESTING SERVICES
(hereinafter “CTS”) will and hereby does move, pursuant to California Rule of Court 3.403(b), to
have the above-entitled action: (1) assigned to the complex litigation program; (2) singularly
assigned; and (3) exempted from the Master Calendar.
This Motion is supported by the following pleadings filed concurrently herewith, any
RC1/6221738.1/DCC -l-
NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOFRedwood City
Ropers Majeski Kohn & Bentley
A Professional Corporation
reply pleadings hereafter filed, all pleadings and orders presently on file with the Court, and such
other matters as may properly come before the Court at or before the hearing on this matter: (1)
this Notice of Motion and Motion to Assign Action to Complex Litigation Program; (2) the
following Memorandum of Points and Authorities in support thereof; (3) the Request for Judicial
Notice and Declaration of Devin C. Courteau in Support of Motion to Assign Action to Complex
Litigation Program (“Courteau Decl.”); and (4) the [Proposed] Order Granting Motion to Assign
Action to Complex Litigation Program.
Dated: November _'"7 , 2011 ROPERS, MAJESKI, KOHN & BENTLEY
Ve Ce SS
By: =
JOHN G. DOOLING
DEVIN C. COURTEAU
Attorneys for Defendant and Cross-
Complainant CONSTRUCTION
TESTING SERVICES, INC.
RC1/6221738.1/DCC -2-
NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOFRopers Majeski Kohn & Bentley
A Professional Corporation
Redwood City
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO DESIGNATE THE CASE AS COMPLEX
A. INTRODUCTION
Defendant CTS respectfully submits this memorandum of points and authorities in
support of this motion to designate this case as complex, as provided by California Rule of Court!
3.403(b). This case involves alleged construction and design defects during the renovation of 973
Market Street, in San Francisco, California (the “Property”). The Property is a seven-story mix
use building on Market Street, which was to be renovated to include commercial space on the first
floor and residential units on the floors above. (Courteau Decl., § 3.) Plaintiff Performing Arts,
LLC claims to be the predecessor in interest to the bank that issued a construction loan on the
Property, and is currently the owner of the Property after having foreclosed upon it.” (Courteau
Decl., Ex. A at G1.)
Plaintiff named seven parties as defendants in this construction and design defect action,
and because one (Killarney Construction Co.) is a suspended corporation, its insurer (Aspen
Insurance UK, Ltd.) successfully moved to intervene in this action, bringing the total number of
defendants to eight. (Courteau Decl., 4.) This action involves multiple alleged construction and
design defects, including allegations relating to design, concrete work, windows, plumbing,
elevator shaft work, and inspections. (Courteau Decl., Ex. A at 11.) It is because of the fact
this case involves construction and design defects and multiple parties that defendant CTS
respectfully requests the Court assign this action to the complex litigation program.
On July 29, 2011, a similar request was made to Commissioner Borrick in an objection by
Cardinal Consulting, Inc. (“Cardinal”) to the trial date set in this matter, but that request was
denied on the ground that San Francisco Superior Court’s complex litigation program was
shutting down due to budget cuts. (Courteau Decl., 8.) As we are informed that funds have
been found to keep the complex litigation program running, CTS renews through a formal motion
' Unless otherwise noted, all citations herein to “Rule” or “Rules” are to the California Rules of Court.
? This is one of many related actions filed in San Francisco Superior Court concerning the Property, others of which
include 973 Market Associates, LLC v. MidMarket Development Company, et al. (Case No. CGC-09-487233) and
Performing Arts, LLC vs. Michael Murray, et al. (Case No. CGC-09-494591). (Courteau Decl., 1 9.)
RC1/6221738.1/DCC -3-
NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOFRopers Majeski Kohn & Bentley
A Professional Corporation
Redwood City
the request by Cardinal to designate this matter as complex and assign it to the complex litigation
program. (Courteau Decl., § 8.)
As noted in Rule 3.400(a), a complex case is one that requires exceptional judicial
management to avoid placing unnecessary burdens on the court or litigants and to expedite the
case, keep costs reasonable, and promote effective decision-making by the court, parties, and
counsel. This case clearly meets this definition of complex litigation. First, it is a construction
and design defect action, which are provisionally designated complex under Rule 3.400(c)(2).
Second, Rule 3.400(b) notes that an important consideration in determining whether an action is
complex is whether it involves management of a large number of number of witnesses and/or
documentary evidence, or management of a large number of separately represented parties. Both
circumstances are present here, as explained below
Assignment of this case to the complex litigation department will promote judicial
economy, avoid unnecessary burdens on the Court and the litigants, promote effective decision
making by the Court, and keep costs reasonable, all as contemplated by Rule 3.400, et seq.
B FACTS — ALLEGATIONS OF THE COMPLAINT
The Second Amended Complaint for Damages in this action (see, Courteau Decl., Ex. A),
alleges causes of action for Negligence (all defendants except Cardinal), Breach of Contract, and
Negligence (against Cardinal), and seeks in excess of $11 million in damages. The substance of
Plaintiffs claims concern alleged construction and design defects at the Property, including the
following:
Improper concrete work;
Improper window installation and work;
Improper plumbing installation and work;
Improper design and execution of plans and designs;
Improper inspection;
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.
(Courteau Decl., Ex. A at { 11.)
moeae oe
As no Defect Report and Preliminary Cost of Repair Estimate was required to be
produced in this action, the above list and certain of Plaintiff's special interrogatory responses
RC1/6221738,1/DCC -4-
NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOFRopers Majeski Kohn & Bentley
A Professional Corporation
Redwood City
provide all the information that is known of the alleged construction and design defects.
(Courteau Decl., 4 5.) However, this information, combined with a review of documents
produced by Plaintiff? does reveal that several sub-contractors whose work is alleged to be
defective have not been named in the complaint -- or in any cross-complaint. These entities
include, but are not limited to, the architect (Kerman Morris Architects, LLP), the structural
engineer (Santos & Urrutia Associates, Inc.), the electrical engineer (Arsenio Ortega, P.E.), the
HVAC engineer (UESF Engineers, Inc.), the HVAC and ventilation subcontractor (Connolly
Heating Inc.), the elevator subcontractor (Otis Elevator Company), a plumber (Gary Chan
Plumbing), the drywall subcontractor (John Wagner Associates, Inc.), the electrical
subcontractors (Titan Electrical and Euro Electric), the concrete supplier (Bode Concrete), and
the window installer (unknown at this time). (Courteau Decl., € 5.)
C. DISCUSSION
The rules for complex litigation are stated in California Rules of Court 3.400 through
3.403. Rule 3.400(a) provides a definition for “complex” actions:
A “complex case” is an action that requires exceptional judicial
management to avoid placing unnecessary burdens on the court or
the litigants and to expedite the case, keep costs reasonable and
promote effective decision-making by the court, the parties and
counsel. (Cal, R. Ct. 3.400(a).)
Rule 3.403(b) states that, even if an action was not initially designated as being complex,
the Court may issue such a designation on its own motion or in response to a noticed motion.
“With or without a hearing, the court may decide on its own motion, or on a noticed motion by
any party, that a civil action is a complex case.” (Cal. R. Ct. 3.403(b).)
Subsection (c) of Rule 3.400 specifically states that “an action is provisionally a complex
case if it involves one . . . of the following types of claims: . . . (2) Construction defect claims
involving many parties. ...” (Cal. R. Ct. 3.400(c).) Finally, Rule 3.400(b) sets for the factors to
be considered in determining whether an action is complex, and these include: “(2) Management
of a large number of witnesses or a substantial amount of documentary evidence; [and] (3)
3 Although Plaintiff apparently served other parties with their document production earlier, defendant CTS only
received these documents on August 22, 2011. (Courteau Decl., 15.)
RCL/6221738.1/DCC “oe
NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOFRopers Majeski Kohn & Bentley
A Professional Corporation
Redwood City
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Management of a large number of separately represented parties.” (Cal. R. Ct. 3.400(b).)
This action meets all of these requirements for being designated complex, and in fact this
action is already a provisionally complex case pursuant to Rule 3.400(c)(2) because it involves
alleged construction and design defects and multiple defendants. In addition, several of the
factors set forth in Rule 3.400(b) are also present, or very soon will be present, in this action. For
example, there are presently cight defendants represented by four law firms, requiring
“{m]anagement of a large number of separately represented parties.” (Cal. R. Ct. 3.400(b)(3);
Courteau Decl., | 4.) Of course, the vast majority of the subcontractors who worked on the
Property have not yet been named in the action,’ but once those subcontractors are brought into
the action the number of parties and law firms will increase dramatically, and make a complex
designation even more necessary than it currently is.
But even without these additional parties, the number of witnesses and documentary
evidence in this case will be substantial. Plaintiff's defect claims are extensive, and will require
multiple depositions and trial testimony not only of employees of the parties, but third parties as
well. These third parties include the subcontractors who worked on the Property, former
employees of the bank that issued the construction loan (the former United Commercial Bank),
employees of the successor-in-interest to United Commercial Bank (East West Bank), and
possibly even the former owners of the property, many of whom live in Ireland. (Courteau Decl.,
4/6.) Thus, this action will require “[m]anagement of a large number of witnesses.” (Cal. R. Ct.
3.400(b)(2).)
There are also over ten thousand pages of documents relating to the Property that have
been produced by Plaintiff already, with many more thousands of pages expected to be produced
in the near future by Plaintiff, defendants MidMarket and Michael Murray, and defendant
Cullinane Construction. (Courteau Decl., {/7.) Thus, this action will also require “[m]Janagement
of... a substantial amount of documentary evidence.” (Cal. R. Ct. 3.400(b)(2).)
‘ Simultaneous to the filing of this Motion, defendant CTS filed a motion to amend its cross-complaint to identify as
fictitious “Roe” cross-defendants many of the sub-contractors whom Plaintiff and the construction manager
(MidMarket Development Co., Inc. (“MidMarket”) and Michael Murray) inexplicably left out of their complaint
and/or cross-complaint. The general contractor is unable to bring these sub-contractors into the action, if it was
inclined to do so, because it is a suspended corporation. (Courteau Decl., ff 4-5.)
RC1/6221738.1/DCC 76-
NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOFRopers Majeski Kohn & Bentley
A Professional Corporation
Redwood City
D. CONCLUSION
For the reasons stated above, defendant CTS respectfully requests that this case be
assigned to a single judge as complex litigation. Assignment of this case to the complex litigation
department will promote judicial economy, avoid unnecessary burdens on the Court and the
litigants, promote effective decision making by the Court, and keep costs reasonable.
Dated: November __ 177, 2011 ROPERS, MAJESKIL, KOHN & BENTLEY
By: “TR -
JOHN &. DOOLING
DEVIN C. COURTEAU
Attorneys for Defendant:and Cross-
Complainant CONSTRUCTION
TESTING SERVICES, INC.
RC1/6221738.1/DCC -7-
NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOFRopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
Cm tN DOD Wn BF WN
NY NY YN YN NY NY NF S&B Se Be ese Se Se Be eB
oD A A fF YB NY &— SBC we WD mH BF YW PW KF
CASE NAME : PERFORMING ARTS v. KILLARNEY, et al.
ACTION NO. : CGC-10-498405
PROOF OF SERVICE
METHOD OF SERVICE
IX] First Class Mail O Facsimile
C1 Overnight Delivery
Oo Messenger Service
1 E-Mail/Electronic Delivery
1. At the 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,
County of San Francisco.
3. On November 18, 2011, I served the following document(s):
NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX
LITIGATION PROGRAM; MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT THEREOF
4. I served 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.
Coque K. Dion, 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.
RC1/S646727.1/VS2
-l-
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
Attorneys for Defendant CARDINAL
CONSULTING, INC.
PROOF OF SERVICERopers Majeski Kohn & Bentley
A Professional Corporation
San Francisco
5. Iserved the document(s) by the following means:
a. Bl 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. I 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.
b. O By overnight delivery: I enclosed the documents in an envelope or package provided
by an overnight delivery carrier and addressed to the persons at the addresses in item
4, Iplaced the envelope or package for collection and overnight delivery at an office
or a regularly utilized drop box of the overnight delivery carrier.
c. 0 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.)
d. 0 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
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.
e. 1 By email or electronic transmission: Based on an agreement between the parties
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,
any electronic message or other indication that the transmission was unsuccessful.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
Date: November 18, 2011
Stephan Choo
Type Name “Signature
RCL/5646727.1/VS2 -2-
PROOF OF SERVICE
Preview
a SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Nov-18-2011 2:25 pm Case Number: CGC-10-498405 Filing Date: Nov-18-2011 2:24 Juke Box: 001 Image: 03391887 LICATION FOR APPROVAL OF COMPLEX LITIGATION DESIGNA] PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al 001C03391887 Instructions: Please place this sheet on top of the document to be scanned.Ropers Majeski Kohn & Bentley A Professional Corporation Redwood City oOo em ID 10 1 12 13 14 15 16 7 18 19 20 21 22 2B 24 25 26 27 28 JOHN G. DOOLING (SBN 154358) - . DEVIN C. COURTEAU (SBN 197505) qe Supt Ato a ROPERS, MAJESKI, KOHN & BENTLEY Cie eT RON 201 Spear Street, Suite 1000 ee San Francisco, CA. 94105-1667 NOV 78 2011 Telephone: (415) 543-4800 Facsimile: (415) 972-6301 CLERK OF THE COU Email: jdooling@rmkb.com py_‘May Qe AT dcourteau@rmkb.com Deputy Clerk 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, NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX v. LITIGATION PROGRAM; MEMORANDUM OF POINTS AND KILLARNEY CONSTRUCTION CO., AUTHORITIES IN SUPPORT THEREOF INC., et al., CASE NO, CGC-10-498405 Date: December 20, 2011 Defendants. Time: 9:30 a.m. Dept.: 206 Trial: March 26, 2012 AND RELATED CROSS-ACTIONS TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on December 20, 2011 at 9:30 a.m., or as soon thereafter as may be heard in the above entitled Court, located at 400 McAllister Street, San Francisco, California 94102, in Department 304, defendant CONSTRUCTION TESTING SERVICES (hereinafter “CTS”) will and hereby does move, pursuant to California Rule of Court 3.403(b), to have the above-entitled action: (1) assigned to the complex litigation program; (2) singularly assigned; and (3) exempted from the Master Calendar. This Motion is supported by the following pleadings filed concurrently herewith, any RC1/6221738.1/DCC -l- NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOFRedwood City Ropers Majeski Kohn & Bentley A Professional Corporation reply pleadings hereafter filed, all pleadings and orders presently on file with the Court, and such other matters as may properly come before the Court at or before the hearing on this matter: (1) this Notice of Motion and Motion to Assign Action to Complex Litigation Program; (2) the following Memorandum of Points and Authorities in support thereof; (3) the Request for Judicial Notice and Declaration of Devin C. Courteau in Support of Motion to Assign Action to Complex Litigation Program (“Courteau Decl.”); and (4) the [Proposed] Order Granting Motion to Assign Action to Complex Litigation Program. Dated: November _'"7 , 2011 ROPERS, MAJESKI, KOHN & BENTLEY Ve Ce SS By: = JOHN G. DOOLING DEVIN C. COURTEAU Attorneys for Defendant and Cross- Complainant CONSTRUCTION TESTING SERVICES, INC. RC1/6221738.1/DCC -2- NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOFRopers Majeski Kohn & Bentley A Professional Corporation Redwood City MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DESIGNATE THE CASE AS COMPLEX A. INTRODUCTION Defendant CTS respectfully submits this memorandum of points and authorities in support of this motion to designate this case as complex, as provided by California Rule of Court! 3.403(b). This case involves alleged construction and design defects during the renovation of 973 Market Street, in San Francisco, California (the “Property”). The Property is a seven-story mix use building on Market Street, which was to be renovated to include commercial space on the first floor and residential units on the floors above. (Courteau Decl., § 3.) Plaintiff Performing Arts, LLC claims to be the predecessor in interest to the bank that issued a construction loan on the Property, and is currently the owner of the Property after having foreclosed upon it.” (Courteau Decl., Ex. A at G1.) Plaintiff named seven parties as defendants in this construction and design defect action, and because one (Killarney Construction Co.) is a suspended corporation, its insurer (Aspen Insurance UK, Ltd.) successfully moved to intervene in this action, bringing the total number of defendants to eight. (Courteau Decl., 4.) This action involves multiple alleged construction and design defects, including allegations relating to design, concrete work, windows, plumbing, elevator shaft work, and inspections. (Courteau Decl., Ex. A at 11.) It is because of the fact this case involves construction and design defects and multiple parties that defendant CTS respectfully requests the Court assign this action to the complex litigation program. On July 29, 2011, a similar request was made to Commissioner Borrick in an objection by Cardinal Consulting, Inc. (“Cardinal”) to the trial date set in this matter, but that request was denied on the ground that San Francisco Superior Court’s complex litigation program was shutting down due to budget cuts. (Courteau Decl., 8.) As we are informed that funds have been found to keep the complex litigation program running, CTS renews through a formal motion ' Unless otherwise noted, all citations herein to “Rule” or “Rules” are to the California Rules of Court. ? This is one of many related actions filed in San Francisco Superior Court concerning the Property, others of which include 973 Market Associates, LLC v. MidMarket Development Company, et al. (Case No. CGC-09-487233) and Performing Arts, LLC vs. Michael Murray, et al. (Case No. CGC-09-494591). (Courteau Decl., 1 9.) RC1/6221738.1/DCC -3- NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOFRopers Majeski Kohn & Bentley A Professional Corporation Redwood City the request by Cardinal to designate this matter as complex and assign it to the complex litigation program. (Courteau Decl., § 8.) As noted in Rule 3.400(a), a complex case is one that requires exceptional judicial management to avoid placing unnecessary burdens on the court or litigants and to expedite the case, keep costs reasonable, and promote effective decision-making by the court, parties, and counsel. This case clearly meets this definition of complex litigation. First, it is a construction and design defect action, which are provisionally designated complex under Rule 3.400(c)(2). Second, Rule 3.400(b) notes that an important consideration in determining whether an action is complex is whether it involves management of a large number of number of witnesses and/or documentary evidence, or management of a large number of separately represented parties. Both circumstances are present here, as explained below Assignment of this case to the complex litigation department will promote judicial economy, avoid unnecessary burdens on the Court and the litigants, promote effective decision making by the Court, and keep costs reasonable, all as contemplated by Rule 3.400, et seq. B FACTS — ALLEGATIONS OF THE COMPLAINT The Second Amended Complaint for Damages in this action (see, Courteau Decl., Ex. A), alleges causes of action for Negligence (all defendants except Cardinal), Breach of Contract, and Negligence (against Cardinal), and seeks in excess of $11 million in damages. The substance of Plaintiffs claims concern alleged construction and design defects at the Property, including the following: Improper concrete work; Improper window installation and work; Improper plumbing installation and work; Improper design and execution of plans and designs; Improper inspection; 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. (Courteau Decl., Ex. A at { 11.) moeae oe As no Defect Report and Preliminary Cost of Repair Estimate was required to be produced in this action, the above list and certain of Plaintiff's special interrogatory responses RC1/6221738,1/DCC -4- NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOFRopers Majeski Kohn & Bentley A Professional Corporation Redwood City provide all the information that is known of the alleged construction and design defects. (Courteau Decl., 4 5.) However, this information, combined with a review of documents produced by Plaintiff? does reveal that several sub-contractors whose work is alleged to be defective have not been named in the complaint -- or in any cross-complaint. These entities include, but are not limited to, the architect (Kerman Morris Architects, LLP), the structural engineer (Santos & Urrutia Associates, Inc.), the electrical engineer (Arsenio Ortega, P.E.), the HVAC engineer (UESF Engineers, Inc.), the HVAC and ventilation subcontractor (Connolly Heating Inc.), the elevator subcontractor (Otis Elevator Company), a plumber (Gary Chan Plumbing), the drywall subcontractor (John Wagner Associates, Inc.), the electrical subcontractors (Titan Electrical and Euro Electric), the concrete supplier (Bode Concrete), and the window installer (unknown at this time). (Courteau Decl., € 5.) C. DISCUSSION The rules for complex litigation are stated in California Rules of Court 3.400 through 3.403. Rule 3.400(a) provides a definition for “complex” actions: A “complex case” is an action that requires exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable and promote effective decision-making by the court, the parties and counsel. (Cal, R. Ct. 3.400(a).) Rule 3.403(b) states that, even if an action was not initially designated as being complex, the Court may issue such a designation on its own motion or in response to a noticed motion. “With or without a hearing, the court may decide on its own motion, or on a noticed motion by any party, that a civil action is a complex case.” (Cal. R. Ct. 3.403(b).) Subsection (c) of Rule 3.400 specifically states that “an action is provisionally a complex case if it involves one . . . of the following types of claims: . . . (2) Construction defect claims involving many parties. ...” (Cal. R. Ct. 3.400(c).) Finally, Rule 3.400(b) sets for the factors to be considered in determining whether an action is complex, and these include: “(2) Management of a large number of witnesses or a substantial amount of documentary evidence; [and] (3) 3 Although Plaintiff apparently served other parties with their document production earlier, defendant CTS only received these documents on August 22, 2011. (Courteau Decl., 15.) RCL/6221738.1/DCC “oe NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOFRopers Majeski Kohn & Bentley A Professional Corporation Redwood City om NY DH wD 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Management of a large number of separately represented parties.” (Cal. R. Ct. 3.400(b).) This action meets all of these requirements for being designated complex, and in fact this action is already a provisionally complex case pursuant to Rule 3.400(c)(2) because it involves alleged construction and design defects and multiple defendants. In addition, several of the factors set forth in Rule 3.400(b) are also present, or very soon will be present, in this action. For example, there are presently cight defendants represented by four law firms, requiring “{m]anagement of a large number of separately represented parties.” (Cal. R. Ct. 3.400(b)(3); Courteau Decl., | 4.) Of course, the vast majority of the subcontractors who worked on the Property have not yet been named in the action,’ but once those subcontractors are brought into the action the number of parties and law firms will increase dramatically, and make a complex designation even more necessary than it currently is. But even without these additional parties, the number of witnesses and documentary evidence in this case will be substantial. Plaintiff's defect claims are extensive, and will require multiple depositions and trial testimony not only of employees of the parties, but third parties as well. These third parties include the subcontractors who worked on the Property, former employees of the bank that issued the construction loan (the former United Commercial Bank), employees of the successor-in-interest to United Commercial Bank (East West Bank), and possibly even the former owners of the property, many of whom live in Ireland. (Courteau Decl., 4/6.) Thus, this action will require “[m]anagement of a large number of witnesses.” (Cal. R. Ct. 3.400(b)(2).) There are also over ten thousand pages of documents relating to the Property that have been produced by Plaintiff already, with many more thousands of pages expected to be produced in the near future by Plaintiff, defendants MidMarket and Michael Murray, and defendant Cullinane Construction. (Courteau Decl., {/7.) Thus, this action will also require “[m]Janagement of... a substantial amount of documentary evidence.” (Cal. R. Ct. 3.400(b)(2).) ‘ Simultaneous to the filing of this Motion, defendant CTS filed a motion to amend its cross-complaint to identify as fictitious “Roe” cross-defendants many of the sub-contractors whom Plaintiff and the construction manager (MidMarket Development Co., Inc. (“MidMarket”) and Michael Murray) inexplicably left out of their complaint and/or cross-complaint. The general contractor is unable to bring these sub-contractors into the action, if it was inclined to do so, because it is a suspended corporation. (Courteau Decl., ff 4-5.) RC1/6221738.1/DCC 76- NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOFRopers Majeski Kohn & Bentley A Professional Corporation Redwood City D. CONCLUSION For the reasons stated above, defendant CTS respectfully requests that this case be assigned to a single judge as complex litigation. Assignment of this case to the complex litigation department will promote judicial economy, avoid unnecessary burdens on the Court and the litigants, promote effective decision making by the Court, and keep costs reasonable. Dated: November __ 177, 2011 ROPERS, MAJESKIL, KOHN & BENTLEY By: “TR - JOHN &. DOOLING DEVIN C. COURTEAU Attorneys for Defendant:and Cross- Complainant CONSTRUCTION TESTING SERVICES, INC. RC1/6221738.1/DCC -7- NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOFRopers Majeski Kohn & Bentley A Professional Corporation San Francisco Cm tN DOD Wn BF WN NY NY YN YN NY NY NF S&B Se Be ese Se Se Be eB oD A A fF YB NY &— SBC we WD mH BF YW PW KF CASE NAME : PERFORMING ARTS v. KILLARNEY, et al. ACTION NO. : CGC-10-498405 PROOF OF SERVICE METHOD OF SERVICE IX] First Class Mail O Facsimile C1 Overnight Delivery Oo Messenger Service 1 E-Mail/Electronic Delivery 1. At the 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, County of San Francisco. 3. On November 18, 2011, I served the following document(s): NOTICE OF MOTION AND MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 4. I served 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. Coque K. Dion, 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. RC1/S646727.1/VS2 -l- 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 Attorneys for Defendant CARDINAL CONSULTING, INC. PROOF OF SERVICERopers Majeski Kohn & Bentley A Professional Corporation San Francisco 5. Iserved the document(s) by the following means: a. Bl 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. I 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. b. O By overnight delivery: I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses in item 4, Iplaced the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. c. 0 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.) d. 0 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 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. e. 1 By email or electronic transmission: Based on an agreement between the parties 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, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: November 18, 2011 Stephan Choo Type Name “Signature RCL/5646727.1/VS2 -2- PROOF OF SERVICE