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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Mar-16-2012 4:02 pm
Case Number: CGC-10-498405
Filing Date: Mar-16-2012 4:02
Juke Box: 001 Image: 03538797
OPPOSITION
PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al
001C03538797
\6
Instructions:
Please place this sheet on top of the document to be scanned.LEWIS
BRISBOIS
BISGAARD
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COUNTY OF SAN Feanes
LEWIS BRISBOIS BISGAARD & SMITH LLP
SUZANNE M. MARTIN, SB# 167079 2012MAR 16 PM 3:
Email: martin@lbbslaw.com
JONATHAN G. KEPKO, SB# 263427
Email: kepko@lbbslaw.com “BY:.
One Sansome Street, Suite 1400
San Francisco, California 94104
Telephone: 415.362.2580
Facsimile: 415.434.0882
Attorneys for Defendants and Cross-Defendants CULLINANE CONSTRUCT! ION, AL NORMAN
MECHANICAL, INC., and Intervenor ASPEN INSURANCE UK, LTD on behalf of Defendant
and Cross-Defendant KILLARNEY CONSTRUCTION CO., a California suspended corporation
ZYEF, DIMENT & GLICKMAN
RAYMOND GLICKMAN, SB# 37473
JORDAN A. SUSSMAN, SB# 225220
109 Geary Street, Fourth Floor
San Francisco, CA 94108
Tel: (415 ) 986-3644
Fax: (415 ) 982-5130
Attomeys for Intervenor ASPEN INSURANCE UK, LTD on behalf of Defendant and Cross-
Defendant KILLARNEY CONSTRUCTION CO., a California suspended corporation
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PERFORMING ARTS, LCC, a Delaware limited | CASE NO.: CGC-10498405
liability company,
oo CULLINANE CONSTRUCTION, AL
Plaintiff, NORMAN MECHANICAL, INC. AND
v. INTERVENOR ASPEN INSURANCE UK,
LTD ON BEHALF OF DEFENDANT AND
KILLARNEY CONSTRUCTION COQ., INC., | CROSS-DEFENDANT KILLARNEY
MID-MARKET DEVELOPMENT CO., INC., | CONSTRUCTION CO., A CALIFORNIA
CARDINAL CONSTRUCTION, AL NORMAN | SUSPENDED CORPORATION
MECHANICAL, INC., MICHAEL MURRAY, OPPOSITION TO PLAINTIFF’S
and DOES 1 THROUGH 200, inclusive, SEPARATE STATEMENT OF
Defendants. ADDITIONAL UNDISPUTED MATERIAL
Date: March 23, 2012
Time: 9:30 a.m.
Dept.: 302
Action Filed: April 7, 2010
_|Triat Date: September 24, 2012
4850-7978-3695.1
OPPOSITION TO PLAINTIFFS SFPAR ATE STATRMENT OFT INDISPHITED ADNITIANAT. MATERIAT FACTS
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Defendants CULLINANE CONSTRUCTION, AL NORMAN MECHANICAL, INC., and |
Intervenor ASPEN INSURANCE UK, LTD on behalf of Defendant and Cross-Defendant
KILLARNEY CONSTRUCTION CO., a California suspended corporation (“Defendants”) hereby
submit this Opposition Separate Statement of Additional Undisputed Material Facts in support of their
Motion for Summary Judgment as follows.
L
973 Market Street Associates, LLC (“973
Market”) was the original owner of an existing
seven-story building located at 973 Market Street
in San Francisco (the “Property”), which was the
subject of a renovation and seismic retrofitting
project that included construction of 67
residential condominium units and 9,500 swaure
feet of ground floor commercial/retain space (the
“Project”). (Cassidy Decl.{[ 2-3)
2. Defendants MidMarket Development Co., | 2,
Undisputed.
Undisputed, except as to the opinion
Inc. (“MidMarket”) and Killamey Construction
Co., Inc. (“Killarney”) acted as the general
contractor responsible for all work on the Project;
Defendant Cullinane Construction (“Cullinane”)
did the concrete work on the Project and was
responsible for the defective concrete work,
including required rebar; Construction Testing
Services (“CTS”) was the consultant hired to
inspect and certify completion of Cullinane’s
work in a workmanlike manner and according to
the plans and specifics approved by the City; and
Defendant Al Norman Mechanical, Inc.
(“Norman”) was the plumbing contractor on the
Project responsible for all of the plumbing work
done on the Project. (Cassidy Decl. at 410)
proffered in regard to “defective” work which
requires expert testimony and is unsupported
by facts or evidence. The referenced
declaration is without foundation and hearsay
and without supporting evidence.
3. United Commercial Bank (“UCB”) was
the original construction lender for the Project,
agreeing to lend a total of $20,000,000 for
construction of the Project (“Construction Loan”)
pursuant to a Promissory Note, a Construction
Loan Agreement, and a Construction Deed of
Trust recorded against the Project on August 21,
2007. (Cassidy Decl., 3; Cassidy Exs. 2-3.)
Undisputed.
4. In addition to pledging the Property as
security for repayment of the Construction Loan,
4. Disputed. The definition of
Mortgaged Property in the Deed of Trust did
4850-7978-3695.1
2
OPPASITION TO PLAINTIFFS SEPARATE STATEMENT OF TINDISPTITETD ADNITIONAT. MATERTAT. FACTS-
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under the Construction Deed of Trust and | include “all contracts and subcontracts relating
Construction Loan Agreement borrower 973 | to improvements” in Sections 1.3.8, 1.3.13 and
Market assigned to UCB “{aJll construction, |} 13.14. But the Trustee assigned these
supply, engineering, and architectural contracts | contracts was U.F. Service Corporation
executed and to be executed by Borrower for the “UE S.C? t UCB. See Reply. B
construction of the Improvement,” and “[a]ll CUFS.C."), no » See Reply. Because
causes of action, and all sums due or payable to | U-F.S.C. was never a party to the Corporation
Borrower for injury or damage to the Mortgaged | Assignment, Plaintiff did not acquire the rights
Property, ...including without limitation causes | of the Trustee and therefore the rights to the
of aon and damages for preach of ¢ contract, contracts associated with the Mortgaged
ud, con ent, construction et or other int 1 ‘
torts.” (Cassidy Ex. 3, §§ 1.3.14, 1.3.12, 1.3.13,at we St the Comeuction Lent Aurovtent sn
4; Cassidy Ex. 4, §14.1, at 22.) bolster its argument that Plaintiff was assigned
causes of action by UCB, that clause states, at
most, that 973 Market Associates, LLC
assigned to UCB its then existing claims and
causes of action relating to the Premises, and
therefor UCB could only assign, at most, those
tights held by UCB at the time of the signing
of the Construction Loan Agreement. This
dispute is a question of law and does not create
a triable issue of fact.
5. Borrower 973 Market went into default on | 5. Undisputed.
its obligations under the Construction Loan, and
on March 5, 2009, UCB caused a Notice of
Default and Election to Sell to be recorded under
the Construction Deed of Trust. (Cassidy Decl,.
6).
6. On June 25, 2009, Plaintiff purchased
from UCB all of UCB’s right, title and interest in
and to the Construction Loan for $3.5 million
under the terms of a written Loan Purchase
Agreement. (Cassidy Ex. 1)
. As part of Plaintiff's purchase, UCB | 7. Undisputed. However, the definition of
endorsed the $20,000,000 Promissory Note over | Mortgaged Property in the Deed of Trust did
to Plaintiff and assigned the Construction Deed of | include “all contracts and subcontracts relating
Trust to Plaintiff pursuant to a Corporation | to Improvements” in Sections 1.3.8, 1.3.13 and
Assignment of Deed of Trust recorded June 25, | 1.3.14. But the Trustee assigned these
2009, together with the balance of the Loan | contracts was U.F. Service Corporation
Assets under the Construction Loan Agreement, | (“U.F.S.C.”), not UCB. See Reply. Because
‘including without limitation causes of action and | U.F.S.C. was never a party to the Corporation
6. Undisputed.
4850-7978-3695.1
OPPASITION TO PT AINTIFFS SEPARATE STATEMENT OF TINDISPHITED ANNITIONAT. MATERTAT. FACTS,damages for breach of contract, fraud,
concealment, construction defects or other torts.”
(Cassidy Dec. at 9] 4-5; Cassidy Ex. 11, at 3;
Cassidy Ex. 4, $14.1, at 22; Cassidy Exs. 5-6).
Assignment, Plaintiff did not acquire the rights
of the Trustee and therefore the rights to the
contracts associated with the Mortgaged
Property. Although Plaintiff cites to section
14.1 of the Construction Loan Agreement to
bolster its argument that Plaintiff was assigned
causes of action by UCB, that clause states, at
most, that 973 Market Associates, LLC
assigned to UCB its then existing claims and
causes of action relating to the Premises, and
therefor UCB could only assign, at most, those
tights held by UCB at the time of the signing
of the Construction Loan Agreement. This
dispute is a question of law and does not create
a triable issue of fact.
8. At the time of Plaintiff's purchase of the
Construction Loan, the defaulted balance owed
by borrower 973 Market was in excess of
$14,000,000, and the estimated cost of
completing the Project was between $11.3 and
$12.6 million (Cassidy Decl. ff] 6-7; Cassidy Ex.
7)
8. Undisputed as to the balance, disputed
as to the cost to complete. The referenced
declaration is without foundation and hearsay
and without supporting evidence. This is not a
9. After obtaining relief from the automatic
bankruptcy stay, on January 26, 2012, Plaintiff
caused the Property to be sold at a non-judicial
foreclosure sale under the Construction Deed of
Trust. (Cassidy Decl. at 16.)
Undisputed.
material issue of fact.
10. ‘Plaintiff was the high bidder at the
trustee’s sale and purchased the Property with a
credit bid of $100,000, taking title to the Property
under a Trustee’s Deed Upon Sale recorded
March 9, 2010. (Cassidy Decl. at | 6; Cassidy Ex.
7)
Undisputed.
11. At the time of the sale, the defaulted
balance due on the Construction Loan was
$15,199,856.27. (Cassidy Ex. 7.)
11. Undisputed. The referenced declaration
is hearsay and the document speaks for itself.
12. After taking possession of the Property
following the January 26, 2012 foreclosure,
Plaintiff conducted “invasive and non-invasive
inspections and demolition,” which exposed
previously unknown defective workmanship
throughout the Project on a massive scale,
including widespread defects in the concrete
work, window installations and plumbing.
(Cassidy Decl., #¥] 8-10.)
L
12. Undisputed, except as to the opinion
proffered in regard to “defective” work which
requires expert testimony and is unsupported
by facts or evidence. Plaintiff's other company
Centrix Construction inspected the property,
spoke with building inspectors in preparation
for submitting a detailed bid to complete
construction at the Project. Centrix
Construction placed this bid to complete the
construction on November 7, 2008, prior to
acquiring title, The Plaintiff acquired a
4850-7978-3695.1
OPPOSITION TO PY AINTIFES SEPARATE STATEMENT AR TINDISPTITED ANNITIONAT. MATERTAT. FACTSbuilding which was partially constructed with |
knowledge that construction was not complete
because the ownership between Plaintiff and
Centrix Construction are one in the same.
The referenced declaration is without
foundation and is hearsay. This dispute does
not create a triable issue of fact. Such an
offering is entirely irrelevant to Defendants’
Motion
13. After taking possession of the Property, | 13. Disputed. Plaintiff's other company
Plaintiff discovered that Defendants installed | Centrix Construction inspected the property,
unreinforced concrete without the rebar| spoke with building inspectors in preparation
installation integral to its structural integrity, | for submitting a detailed bid to complete
improperly placed new concrete and removed | construction at the Project. Centrix
pre-existing concrete, defectively installed new | Construction placed this bid to complete the
windows through the building permitting wind | construction on November 7, 2008, prior to
and water instruction and causing significant acquiring title. The Plaintiff acquired a
moisture damage to the building. (Cassidy Decl. | building which was partially constructed with
171 8-10.) knowledge that construction was not complete
because the ownership between Plaintiff and
Centrix Construction are one in the same.
The opinion proffered in regard to “defective”
work requires expert testimony and is
unsupported by facts or evidence. The
referenced declaration is without foundation
and is hearsay. This dispute does not create a
triable issue of fact. Such an offering is
entirely irrelevant to Defendants’ Motion
14. After taking possession of the Property, | 14. Disputed. Plaintiff's other company
Plaintiff discoveted that Defendants had either | Centrix Construction inspected the property,
destroyed or rendered useless the building’s pre- |_ spoke with building inspectors in preparation
existing plumbing through defective installation | for submitting a detailed bid to complete
of “replacement” plumbing fixtures and even the | construction at the Project. Centrix
insertion of poured concrete into various pre- | Construction placed this bid to complete the
existing pipes throughout the building. (Cassidy | construction on November 7, 2008, prior to
21|!! Decl. 48-10.) acquiring title. The Plaintiff acquired a
2 building which was partially constructed with
knowledge that construction was not complete
23 because the ownership between Plaintiff and
Centrix Construction are one in the same.
24 The opinion proffered in regard to “defective”
work requires expert testimony and is
unsupported by facts or evidence. The
6 referenced declaration is without foundation
and is hearsay. This dispute does not create a
27 triable issue of fact. Such an offering is
entirely irrelevant to Defendants’ Motion
LEWIS 28 || 15. Defendants Cullinane, Norman and Kilamey | 15. Disputed. Defendants Responses to
BRISBOIS
BISGAARD 4850-7978-3695.1 5
SSMAHUP OPPOSITION TA PLAINTIFFS SEPARATE STATEMENT OR TINDISPHITED ANNITIONAT. MATERIAT FACTS
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lack sufficient information to deny that Plaintiff | Plaintiff's Request for Admission No. 6 was
has standing to assert the cause of action against
each of them as alleged in the Second Amended
Complaint. (Smith Ex., A, at 7:4-8:12; Smith Ex.
C, at 7:4-8:12, Smith Ex. E, at 7:4-8:12)
allowed by Code and has been misconstrued
by Plaintiff. Defendants’ Responses to
Plaintiff's Request for Admissions do not
waive the bases for their Motion for Summary
Judgment. The purposes of discovery laws in
California are to (1) enable counsel to more
quickly and thoroughly obtain evidence and
evidentiary leads, and thus to more quickly
and effectively prepare for trial, and (2)
enable counsel to "set at rest" issues that are
not genuinely disputed. Burke v. Superior
Court, (1969) 71 Cal. 2d 276, 281. Plaintiff
asserts that due to Defendants’ responses to
requests for admission they have admitted that
they have no facts that support their
contention that Plaintiff is not the proper
assignee from UCB regarding their asserted
causes of action nor have standing with
Tespect to their claims. However, Defendants’
argument regarding Plaintiffs lack of
standing is based upon the interpretation of
various documents. These documents are
readily available to all parties and were in fact
in Plaintiffs possession prior to the filing of
the complaint herein. The requests for
admission concerned the interpretation of
these documents and not the discovery of
relevant facts; this interpretation is a matter of
law for the Court as there has been no
allegation of extrinsic evidence. Parsons v.
Bristol Development Co. (1965) 62 Cal. 2d
861. In this respect they simply request that
Defendants explain their legal theories
regarding Plaintiff's alleged lack of
standing. Such requests are not a proper
subject of discovery. Flora Crane Service,
Inc. v. Superior Court (1965) 234 Cal. App.
2d 767, 781-782. As to the application of law
to fact, discovery allows for unearthing a
party’s contentions. In this case, the
contention would simply be that Plaintiff does
not have standing and that the alleged
assignment did not perfect standing. At the
time Plaintiff served the requests for
admission, they had already been served with
defendants’ motions for summary
judgment. They, therefore, were already in
4850-7978-3695.1
6
OPPOSITION TO PL ATNTIFES SEPARATE STATEMENT OF TINDISPIITED ADDITIONAT MATERTAT. FACTSpossession of defendants’ detailed argument |
and presentation of facts in support of the
bases for the propositions they were testing by
this discovery. Finally with respect to the
requests for admission, Plaintiffs lack of
standing to sue on their claims is treated as a
"jurisdictional" defect and is not waived by
defendant's failure to raise it by demurrer or
answer. Contentions based on a lack of
standing involve jurisdictional challenges and
may be raised at any time in the proceeding or
even on appeal for the first time. Cummings
v. Stanley (2009)177 Cal. App. 4th 493, 501.,
Associated Builders & Contractors, Inc. v.
San Francisco Airports Comm’n (1999) 21
Cal. 4th 352, 361. By this logic, defendants
have not waived the defense of lack of
standing for failing to repeat its argument and
evidence in response to Plaintiff's requests
when they had already been served on
Plaintiff and filed with the Court. This dispute
does not create a triable issue of fact. Such an
offering is entirely irrelevant to Defendants’
Motion.
16.
16, Defendants Cullinane, Norman and Kilarney
lack sufficient information to deny that Plaintiff
has been damaged as a result of the work they
each performed at 973 Market Street, San
Francisco, California.(Smith Ex., A, at 7:4-8:12;
Smith Ex. C, at 7:4-8:12, Smith Ex. E, at 7:4-
8:12)
Disputed. Defendants Responses to
Plaintiff's Request for Admission No. 7 was
allowed by Code and has been misconstrued
by Plaintiff. Defendants’ Responses to
Plaintiff's Request for Admissions do not
waive the bases for their Motion for Summary
Judgment. The purposes of discovery laws in
19 California are to (1) enable counsel to more
quickly and thoroughly obtain evidence and
20 evidentiary leads, and thus to more quickly
and effectively prepare for trial, and (2)
21 enable counsel to "set at rest" issues that are
n not genuinely disputed. Burke v, Superior
Court, (1969) 71 Cal. 2d 276, 281. Plaintiff
23 asserts that due to Defendants’ responses to
requests for admission they have admitted that
24 they have no facts that support their
contention that Plaintiff is not the proper
25 assignee from UCB regarding their asserted
26 causes of action nor have standing with
respect to their claims. However, Defendants’
7 argument regarding PlaintifPs lack of
standing is based upon the interpretation of
LEws 28 tL various documents. These documents ‘ae |
BRISBOIS
BISGAARD 4850-7978-3695.1 1
SSMIHUP OPPASITION TO PI_AINTIFFS SEPARATE STATEMENT OF TINDISPTTITER ANNITIONAT. MATERTAY. FACTSLEWIS
BRISBOIS
BISGAARD
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readily available to all parties and were in fact
in Plaintiff's possession prior to the filing of
the complaint herein. The requests for
admission concerned the interpretation of
these documents and not the discovery of
relevant facts; this interpretation is a matter of
law for the Court as there has been no
allegation of extrinsic evidence, Parsons v.
Bristol Development Co. (1965) 62 Cal. 2d
861. In this respect they simply request that
Defendants explain their legal theories
regarding Plaintiffs alleged lack of
standing. Such requests are not a proper
subject of discovery. Flora Crane Service,
Inc. v. Superior Court (1965) 234 Cal. App.
2d 767, 781-782. As to the application of law
to fact, discovery allows for unearthing a
party’s contentions. In this case, the
contention would simply be that Plaintiff does
not have standing and that the alleged
assignment did not perfect standing. At the
time Plaintiff served the requests for
admission, they had already been served with
defendants’ motions for summary
judgment. They, therefore, were already in
Possession of defendants’ detailed argument
and presentation of facts in support of the
bases for the propositions they were testing by
this discovery. Finally with respect to the
requests for admission, Plaintiffs lack of
standing to sue on their claims is treated as a
"jurisdictional" defect and is not waived by
defendant's failure to raise it by demurrer or
answer. Contentions based on a lack of
standing involve jurisdictional challenges and
may be raised at any time in the proceeding or
even on appeal for the first time. Cummings
v. Stanley (2009)177 Cal. App. 4th 493, 501.,
Associated Builders & Contractors, Inc. v.
San Francisco Airports Comm'n (1999) 21
Cal. 4th 352, 361. By this logic, defendants
have not waived the defense of lack of
standing for failing to repeat its argument and
evidence in response to Plaintiff's requests
when they had already been served on
Plaintiff and filed with the Court. This dispute
does not create a triable issue of fact. Such an
offering is entirely irrelevant to Defendants’
4850-7978-3695.1
OPPASITION TA PrATNTIFFS SEPARATE STATEMENT OF TINDISPTITEN ANNITIONAT, MATERTAT. FACTSMotion.
17. Defendants Cullinane, Norman and Kilarney | 17. Disputed. Defendants Responses to
lack sufficient information to deny that Plaintiffis | Plaintiff's Request for Admission No. 4 was
the explicit assignee from UCB of the claims that | allowed by Code and has been misconstrued
Plaintiff has asserted against each of them in the | by Plaintiff. Defendants’ Responses to
Second Amended Complaint. (Smith Ex., A, at | PlaintifPs Request for Admissions do not
5:23-6:13; Smith Ex. C, at 5:23-6:13, Smith Ex. | waive the bases for their Motion for Summary
E, at 5:23-6:13) Judgment. The purposes of discovery laws in
California are to (1) enable counsel to more
quickly and thoroughly obtain evidence and
evidentiary leads, and thus to more quickly
and effectively prepare for trial, and (2)
enable counsel to "set at rest" issues that are
not genuinely disputed. Burke v. Superior
Court, (1969) 71 Cal. 2d 276, 281. Plaintiff
asserts that due to Defendants’ responses to
requests for admission they have admitted that
they have no facts that support their
contention that Plaintiff is not the proper
assignee from UCB regarding their asserted
causes of action nor have standing with
tespect to their claims. However, Defendants’
argument regarding Plaintiffs lack of
standing is based upon the interpretation of
various documents. These documents are
readily available to all parties and were in fact
in Plaintiff's possession prior to the filing of
the complaint herein. The requests for
admission concerned the interpretation of
these documents and not the discovery of
relevant facts; this interpretation is a matter of
law for the Court as there has been no
allegation of extrinsic evidence. Parsons v.
Bristol Development Co. (1965) 62 Cal. 2d
861. In this respect they simply request that
Defendants explain their legal theories
regarding Plaintiffs alleged lack of
standing. Such requests are not a proper
subject of discovery. Flora Crane Service,
Inc. v. Superior Court (1965) 234 Cal. App.
2d 767, 781-782. As to the application of law
to fact, discovery allows for unearthing a
party’s contentions. In this case, the
contention would simply be that Plaintiff does
not have standing and that the alleged
assignment did not perfect standing. At the
time Plaintiff served the requests for
admission, they had already been served with
ec eo YN DA HA FE WwW NY eS
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7
LEWIS
BRISBOIS
Ben 4850-7978-3695.1 _9
S&SVIHUP OPPOSITION TO PLAINTIFFS SEPARATE STATEMENT OF TINDISPHITET ADNITIONAT MATERTAT FACTSoO YN DH mR WD Dm
N YR Y Bw NY WN mae
BRU RREBRERSRSERSKREE ERE BE
defendants’ motions for summary
judgment. They, therefore, were already in
possession of defendants’ detailed argument
and presentation of facts in support of the
bases for the propositions they were testing by
this discovery. Finally with respect to the
requests for admission, Plaintiffs lack of
standing to sue on their claims is treated as a
"jurisdictional" defect and is not waived by
defendant's failure to raise it by demurrer or
answer. Contentions based on a lack of
standing involve jurisdictional challenges and
may be raised at any time in the ‘proceeding or
even on appeal for the first time. Cummings
v. Stanley (2009)177 Cal. App. 4th 493, 501.,
Associated Builders & Contractors, Inc. v.
San Francisco Airports Comm'n (1999) 21
Cal. 4th 352, 361. By this logic, defendants
have not waived the defense of lack of
standing for failing to repeat its argument and
evidence in response to Plaintiff's requests
when they had already been served on
Plaintiff and filed with the Court. This dispute
does not create a triable issue of fact. Such an
offering is entirely irrelevant to Defendants’
Motion. |
18. Defendants Cullinane, Norman and Kilarney
lack sufficient information to deny that the work
each of them performed at 973 Market Street, San
Francisco, California was negligently performed.
(Smith Ex., A, at 8:13-9:3; Smith Ex. C, at 8:13-
9:3, Smith Ex. E, at 8:13-9:3)
18. Disputed. Defendants Responses to
Plaintiff's Request for Admission No. 8 was
allowed by Code and has been misconstrued
by Plaintiff. Defendants’ Responses to
Plaintiff's Request for Admissions do not
waive the bases for their Motion for Summary
Judgment. The purposes of discovery laws in
California are to (1) enable counsel to more
quickly and thoroughly obtain evidence and
evidentiary leads, and thus to more quickly
and effectively prepare for trial, and (2)
enable counsel to "set at rest" issues that are
not genuinely disputed. Burke v. Superior
Court, (1969) 71 Cal. 2d 276, 281. Plaintiff
asserts that due to Defendants’ responses to
requests for admission they have admitted that
they have no facts that support their
contention that Plaintiff is not the proper
assignee from UCB regarding their asserted
causes of action nor have standing with
respect to their claims. However, Defendants’
argument regarding Plaintiff's lack of
4850-7978-3695.1
OPPOSITION TO PLAINTIFFS SEPARATE STATEMENT OFT TNNISPTITEN ANDITIONAT. MATERIAT. FACTSco my A Hh RB WN
10
il
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
standing is based upon the interpretation of |
various documents. These documents are
readily available to all parties and were in fact
in Plaintiff's possession prior to the filing of
the complaint herein. The requests for
admission concerned the interpretation of
these documents and not the discovery of
relevant facts; this interpretation is a matter of
law for the Court as there has been no
allegation of extrinsic evidence. Parsons v.
Bristol Development Co. (1965) 62 Cal. 2d
861. In this respect they simply request that
Defendants explain their legal theories
regarding Plaintiffs alleged lack of
standing. Such requests are not a proper
subject of discovery. Flora Crane Service,
Inc, v, Superior Court (1965) 234 Cal. App.
2d 767, 781-782. As to the application of law
to fact, discovery allows for unearthing a
party’s contentions. In this case, the
contention would simply be that Plaintiff does
not have standing and that the alleged
assignment did not perfect standing. At the
time Plaintiff served the requests for
admission, they had already been served with
defendants’ motions for summary
judgment. They, therefore, were already in
possession of defendants’ detailed argument
and presentation of facts in support of the
bases for the propositions they were testing by
this discovery. Finally with respect to the
requests for admission, Plaintiff's lack of
standing to sue on their claims is treated as a
"jurisdictional" defect and is not waived by
defendant's failure to raise it by demurrer or
answer. Contentions based on a lack of
standing involve jurisdictional challenges and
may be raised at any time in the proceeding or
even on appeal for the first time. Cummings
y. Stanley (2009)177 Cal. App. 4th 493, 501.,
Associated Builders & Contractors, Inc. v.
San Francisco Airports Comm’n (1999) 21
Cal. 4th 352, 361. By this logic, defendants
have not waived the defense of lack of
standing for failing to repeat its argument and
evidence in response to Plaintiff's requests
when they had already been served on
Plaintiff and filed with the Court. This dispute
4850-7978-3695.1
—_l1
OPPOSITION TO PT AINTIFFS SEPARATE STATEMENT OF TINTISPITTEN ANNITIONAT. MATERIAT. FACTSoe ent aA un aw YD me
Rn Py = om met
Bs Se Tah EBGHKEE S
does not create a triable issue of fact. Such an
offering is entirely irrelevant to Defendants’
Motion.
19. Under Plaintiff's Loan Purchase Agreement
with UCB, the “Loan Assets” purchased by
the Loan Agreement, Promissory Note and
Construction Deed of Trust from borrower 973
Market:
Loan Assets shall mean, in respect of all the
Loans, all right, title and interest of the Seller in
and to the Loans, all related Loan Payments, all
Loan Collateral, ... and other proceeds of any
kind or nature in respect of such Loan Collateral,
the Loan File, the Promissory Note, Mortgage,
Security Agreement and all other Loan
Documents evidencing or pertaining to such
Loans and all other rights, remedies, privileges,
benefits, causes of action or claims of Seller
(whether known or unknown) arising from or
related to such Loans.
| (Cassidy Ex. 1, at 3).
19. Undisputed as to the accuracy of the
quoted language, however, the referenced
Plaintiffincluded the sum of UCB’s rights under | declaration is hearsay and the document
speaks for itself.
20. The “rights, remedies, privileges, benefits,
causes of action or claims” of seller UCB
purchased by Plaintiff include the construction
defect claims alleged against Defendants here,
which were assigned to UCB by borrower 973
Market under the original Construction Loan
Agreement:
14. Assignment of Causes of Action, Awards and
Damages
14.1 All causes of action, and all sums due or
payable to Borrower for injury or damage to the
Mortgage Property, or as damages incurred in
connect with the transactions in which the Loan
secured hereby was made, including without
limitation causes of action and damages for
breach of contract, fraud, concealment,
construction defects or other torts, ... are hereby
assigned, and all proceeds from such causes of
action and all such sums shall be paid to Lender
for credit upon the Indebtedness secured hereby
or as otherwise provided herein...
Tan Th
20. Undisputed the Plaintiff purchased all
tights held by UCB and the clauses quoted are
accurate in their quotation, but DISPUTED
as to Plaintiff's characterization of the rights
purchased by Plaintiffs from UCB include the
construction defect claims alleged against
Defendants. This boilerplate, generic
language does not specifically mention
assignment of any claims that accrued to 973
Market Associates, LLC nor any claims
regarding Defendants' work on the Premises,
and completely fails to clearly manifest an
intention to assign or transfer such claims.
Moreover, this general clause mentions only
causes of action or claims "of the Seller,"
rather than claims that accrued to 973 Market
Associates, LLC. See Defendants’ Reply.
This dispute is a question of law and does not
create a triable issue of fact.
4850-7978-3695.1
OPPOSITION TO PY_ATNTIFES SEPARATE STATEMENT OF TINDISPLITEN ANNITIONAT MATERIAT. FACTS.» Mar-16-12) 12:48pm
LEWIS
BRISBOIS
BISGAARD
&SMIHUP
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DATED: March 16, 2012
From-LEWIS BR’ I$ BISGAARD + SMITH
4154340882
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[Cassidy Bx. 4, at 22.
21, The Construction Deed of Trust defines the
Mortgaged Property against which UCB was
given a security interest as including all “contract
tights” and “claims against third pasties,” all
“construction, supply,
Improvements,” and the following:
..all plans and specifications for the
Improvement; all contracts and subcontracts
relating to the Improvements, all soils reports,
engineering reports, environmental reports, land
planning maps, drawings, construction contracts,
notes, drafts, documents, engineering and
architectural drawings, letters of credit, bonds,
surety bonds, and other intangible rights, relating
to the Land and Improvements, surveys and other
reports, exhibits, or plans used or to be used in
connection with the construction, planning,
| operation, or maintenance of the Land and
Improvements and all amendments and
funds,
accounts, contract rights, instruments, documents,
general intangibles...,and notes or chattel paper
arising from or in connection with the Land and
other property; all permits, licenses, certificates,
and other rights and privileges obtained in
connection with the Land and Mortgaged
Property; all proceeds arising from or by virtue of
the sale, lease, grant of option or other disposition
modifications thereof, all deposits...,
of all or any part of the Mortgaged Property...
| (Cassidy Ex. 3, at 4, 1).
engineering, and
architectural contracts executed and to be
executed by Borrower of the construction of the
21. Undisputed as to the definition a
Mortgaged Property in the Construction Deed
of Trust, but DISPUTED as to whether a
security interest in these rights was given to
UCB. The Construction Deed of Trust states
“Borrower does hereby GRANT, BARGAIN,
SELL AND CONVEY unto Trustee the
Mortgaged Property...” U.F. Service
Corporation was the Trustee given a security
interest in the Mortgaged Property in the
Construction Deed of Trust, not UCB, UCB
was solely the Beneficiary of the trust. As the
Beneficiary, UCB never had a security
interest in the Mortgaged Property it could
have conveyed to Plaintiff. (Cassidy Ex, 3, at
1 2 and fl.) This boilerplate, generic
language does not specifically mention
assignment of any claims that accrued to 973
Market Associates, LLC nor any claims
regarding Defendants’ work on the Premises,
and completely fails to clearly manifest an
intention to assign or transfer such claims.
Moreover, this general clause mentions only
causes of action or claims “of the Seller,”
rather than claims that accrued to 973 Market
Associates, LLC, See Defendants’ Reply, This
dispute is a question of law and does not
create a triable issue of fact.
By:
LEWIS BRISBOIS BISGAARD & SMITH LLP
a
Suzanne
Jonathan G. Kepko
Attorneys for Defendants and Cross-Defendants
CULLINANE CONSTRUCTION, AL NORMAN
MECHANICAL, INC. and Intervenor ASPEN)
INSURANCE UK, LTD on behalf of Defendant and
Cross-Defendant KILLARNEY CONSTRUCTION
CO., a California suspended corporation
4850-7978-3695.1
13__
APPNETTION TO PY _AINTIFES SEPARATE STATRMENT NF TINTISPTITRN ANOITIONAT. MATERIAT. FACTSLEWIS BRISBOIS BISGAARD & SMITH LLP
SUZANNE M. MARTIN, SB# 167079
E-Mail: martin@Ibbslaw.com
JONATHAN G. KEPKO, SB# 263427
E-Mail: kepko@Ibbslaw.com
One Sansome Street, Suite 1400
San Francisco, California 94104
Telephone: 415.362.2580
Facsimile: 415.434.0882
Attorneys for Defendants and Cross Defendants
CULLINANE CONSTRUCTION; AL NORMAN
FILED
OURT
county TRON FRANCISCO
TNDMAR 16 PM 335)
CLERK OF THE COU
BY:.
MECHANICAL, INC.; ASPEN INSURANCE UK, LTD,
intervenor on behalf of Defendant and Cross-Defendant
KILLARNEY CONSTRUCTION CO., a California
suspended corporation
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PERFORMING ARTS, LCC, a Delaware
corporation,
Plaintiff,
vs.
KILLARNEY CONSTRUCTION CO., INC.;
MID-MARKET DEVELOPMENT CO., INC.;
CARDINAL CONSTRUCTION; AL
NORMAN MECHANICAL, INC.;
MICHAEL MURRAY; and DOES 1 through
200, inclusive,
Defendants.
AND RELATED CROSS-ACTIONS
4841-3298-5615.1
CASE NO. CGC 10 498405
PROOF OF SERVICE
Action Filed: April 7, 2010
Trial Date: None Set ~
PROOF OF SERVICE
Aud hdCc et AH Rh WN
Pett
eS edt AnH B&B BW NH SE S
20
CALIFORNIA STATE COURT PROOF OF SERVICE
Performing Arts, LLC, v. Killarney Construction Co., Inc., et al. - File No. 28303-64
San Francisco Superior Court No. CGC-10-498405
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
At the time of service, I was over 18 years of age and not a party to the action. My
business address is One Sansome Street, Suite 1400, San Francisco, California 94104.
On March 16, 2012, I served the following document(s):
1, DEFENDANTS’ CULLINANE CONSTRUCTION, AL NORMAN
MECHANICAL, INC. AND INTERVENOR ASPEN INSURANCE UK, LTD
ON BEHALF OF DEFENDANT AND CROSS-DEFENDANT KILLARNEY
CONSTRUCTION CO., A CALIFORNIA SUSPENDED CORPORATION
REPLY BRIEF TO PLAINTIFF’S OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT
2. CULLINANE CONSTRUCTION, AL NORMAN MECHANICAL, INC. AND
INTERVENOR ASPEN INSURANCE UK, LTD ON BEHALF OF
DEFENDANT AND CROSS-DEFENDANT KILLARNEY CONSTRUCTION
CO., A CALIFORNIA SUSPENDED CORPORATION OPPOSITION TO
PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL UNDISPUTED
MATERIAL FACTS
3. DEFENDANTS’ CULLINANE CONSTRUCTION, AL NORMAN
MECHANICAL, INC, AND INTERVENOR ASPEN INSURANCE UK, LTD
ON BEHALF OF DEFENDANT AND CROSS-DEFENDANT KILLARNEY
CONSTRUCTION CO., A CALIFORNIA SUSPENDED CORPORATION
RESPONSES TO PLAINTIFF'S OBJECTIONS TO EVIDENCE SUBMITTED
BY DEFENDANTS IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT
4, DEFENDANTS’ CULLINANE CONSTRUCTION, AL NORMAN
MECHANICAL, INC. AND INTERVENOR ASPEN INSURANCE UK, LTD
ON BEHALF OF DEFENDANT AND CROSS-DEFENDANT KILLARNEY
CONSTRUCTION CO., A CALIFORNIA SUSPENDED CORPORATION
OBJECTIONS TO PERFORMING ARTS, LLC’S EVIDENCE OFFERED IN
SUPPORT OF ITS OPPOSITION
5. [PROPOSED] ORDER ON DEFENDANTS’ CULLINANE CONSTRUCTION,
AL NORMAN MECHANICAL, INC. AND INTERVENOR ASPEN
INSURANCE UK, LTD ON BEHALF OF DEFENDANT AND CROSS-
DEFENDANT KILLARNEY CONSTRUCTION CO., A CALIFORNIA
SUSPENDED CORPORATION OBJECTIONS TO PERFORMING ARTS,
LLC’S EVIDENCE OFFERED IN SUPPORT OF ITS OPPOSITION
6. PROOF OF SERVICE
I served the documents on the following persons at the following addresses (including fax
numbers and e-mail addresses, if applicable):
4841 -3298-5615.1
1
PROOF OF SERVICELEWIS
BRISBOIS
BISGAARD
&SMIHUP
ATORNES ANA
7 2 ata nn aw N
Py NYP YP NY NN NN YR Be Be Ree oe oe Oe OR Oe oe
oy A wm YW YN BS OD BIA A HM BF BNR SE TS
Gary A. Angel, Esq. Attorneys for Plaintiff
Frear Stephen Schmid, Esq.
LAW OFFICES OF GARY A. ANGEL Tel.: 415.788.5935
177 Post Street, 8th Floor Fax: 415.788.5958
San Francisco, CA 94108
Jeffrey H. Lowenthal, Esq. Attorneys for Plaintiff
STEYER, LOWENTHAL, BOODROOKAS,
ALVAREZ & SMITH LLP Tel.: 415.421.3400
One California Street, 3rd Floor Fax: 415.421.2234
San Francisco. CA 94111 Email: jlowenthal@steverlaw.com
Jordan A. Sussman, Esq. Attorneys for Aspen Insurance UK, Ltd.,
ZIEF, DIMENT & GLICKMAN Intervenor for Killarney Construction, Co.
109 Geary Street, 4th Floor
San Francisco, CA 94108 Tel.: 415.986-3644
Fax: 415.982.5130
Dion N. Cominos, Esq. Attorneys for Defendant/Cross-Defendant
Mark C. Russell, Esq. Cardinal Consulting Inc.
Olivia J. Bradbury, Esq.
GORDON & REES Tel.: 415.986.5900
275 Battery Street, Suite 2000 Fax: 415.986.8054
San Francisco, CA 94111 Email: decominos@gordonrees.com
Email: mrussell@gordonrees.com
Email: obradburv@gordonrees.com
John G. Dooling, Esq. Attorneys for Defendant/Cross-Complainant
ROPERS, MAJESKI, KOHN & BENTLEY Construction Testing Services, Inc.
201 Spear Street, Suite 1000
San Francisco, CA 94105 Tel.: 415.543.4800
Fax: 415.972.6301
Email: idooling@ropers.com
Todd B. Gary, Esq. Attorneys for Cullinane Construction
THE GARY LAW FIRM
950 Risa Road, Second Floor Tel.: 925.831.1155
Lafayette, CA 94549 Fax: 925.831.1188
Email: teary@thegarvlawfirm.com
Paul Manasian, Esq. Attorneys for Defendants Mid-Market
Coque K. Dion, Esq. Development Co., Inc. and Michael Murray
MANASIAN & ROUGEAU LLP
400 Montgomery Street, Suite 1000 Tel: 415.291.8425
San Francisco, CA 94104 Fax: 415.291.8426
Email: dion@mrlawsf.com
Richard K. Bauman, Esq. Attorneys for Cross-Defendant/Cross-
LAW OFFICES OF RICHARD K. BAUMAN | Complainant Santos & Urrutia Associates,
220 Montgomery Street, Suite 1500 Inc.
San Francisco, CA 94104
Tel.: 415.982.5230
Fax: 415.397.1577
4841-3298-5615.1
2
PROOF OF SERVICEMar-16-12 12:47pm = From-LEWIS BR’ ~I$ BISGAARD + SMITH 4154340882 7-381 P.04/05 F-786
1 [ Email: roauman@att net
2 -
The documents were served by the following means:
° gy (BY OVERNIGHT DELIVERY) | enclosed the documents in an envelope or ge
4 provided by an overnight delivery carrier and addressed to the persons at the dresses.
listed above. I placed the envelope or package for collection and delivery at an office or a
5 regularly utilized drop box of the overnight delivery carrier,
6 I declare under penalty of perjury under the laws of the State of California that the
1 foregoing is true and correct.
8 Executed on March 1b 2012, at San Francisco, California.
9
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16
7
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20
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Sean — PROOF OP URVICE
Preview
IMA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Mar-16-2012 4:02 pm Case Number: CGC-10-498405 Filing Date: Mar-16-2012 4:02 Juke Box: 001 Image: 03538797 OPPOSITION PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al 001C03538797 \6 Instructions: Please place this sheet on top of the document to be scanned.LEWIS BRISBOIS BISGAARD &SMIHUP oC mt An F Ww NY eB Roe ee ka es ce mn anaunaeaans es supenion Cou COUNTY OF SAN Feanes LEWIS BRISBOIS BISGAARD & SMITH LLP SUZANNE M. MARTIN, SB# 167079 2012MAR 16 PM 3: Email: martin@lbbslaw.com JONATHAN G. KEPKO, SB# 263427 Email: kepko@lbbslaw.com “BY:. One Sansome Street, Suite 1400 San Francisco, California 94104 Telephone: 415.362.2580 Facsimile: 415.434.0882 Attorneys for Defendants and Cross-Defendants CULLINANE CONSTRUCT! ION, AL NORMAN MECHANICAL, INC., and Intervenor ASPEN INSURANCE UK, LTD on behalf of Defendant and Cross-Defendant KILLARNEY CONSTRUCTION CO., a California suspended corporation ZYEF, DIMENT & GLICKMAN RAYMOND GLICKMAN, SB# 37473 JORDAN A. SUSSMAN, SB# 225220 109 Geary Street, Fourth Floor San Francisco, CA 94108 Tel: (415 ) 986-3644 Fax: (415 ) 982-5130 Attomeys for Intervenor ASPEN INSURANCE UK, LTD on behalf of Defendant and Cross- Defendant KILLARNEY CONSTRUCTION CO., a California suspended corporation SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PERFORMING ARTS, LCC, a Delaware limited | CASE NO.: CGC-10498405 liability company, oo CULLINANE CONSTRUCTION, AL Plaintiff, NORMAN MECHANICAL, INC. AND v. INTERVENOR ASPEN INSURANCE UK, LTD ON BEHALF OF DEFENDANT AND KILLARNEY CONSTRUCTION COQ., INC., | CROSS-DEFENDANT KILLARNEY MID-MARKET DEVELOPMENT CO., INC., | CONSTRUCTION CO., A CALIFORNIA CARDINAL CONSTRUCTION, AL NORMAN | SUSPENDED CORPORATION MECHANICAL, INC., MICHAEL MURRAY, OPPOSITION TO PLAINTIFF’S and DOES 1 THROUGH 200, inclusive, SEPARATE STATEMENT OF Defendants. ADDITIONAL UNDISPUTED MATERIAL Date: March 23, 2012 Time: 9:30 a.m. Dept.: 302 Action Filed: April 7, 2010 _|Triat Date: September 24, 2012 4850-7978-3695.1 OPPOSITION TO PLAINTIFFS SFPAR ATE STATRMENT OFT INDISPHITED ADNITIANAT. MATERIAT FACTS ddA hdec em ra DAH RR BW NN mm beet cent aA wm RO BR BS 20 Defendants CULLINANE CONSTRUCTION, AL NORMAN MECHANICAL, INC., and | Intervenor ASPEN INSURANCE UK, LTD on behalf of Defendant and Cross-Defendant KILLARNEY CONSTRUCTION CO., a California suspended corporation (“Defendants”) hereby submit this Opposition Separate Statement of Additional Undisputed Material Facts in support of their Motion for Summary Judgment as follows. L 973 Market Street Associates, LLC (“973 Market”) was the original owner of an existing seven-story building located at 973 Market Street in San Francisco (the “Property”), which was the subject of a renovation and seismic retrofitting project that included construction of 67 residential condominium units and 9,500 swaure feet of ground floor commercial/retain space (the “Project”). (Cassidy Decl.{[ 2-3) 2. Defendants MidMarket Development Co., | 2, Undisputed. Undisputed, except as to the opinion Inc. (“MidMarket”) and Killamey Construction Co., Inc. (“Killarney”) acted as the general contractor responsible for all work on the Project; Defendant Cullinane Construction (“Cullinane”) did the concrete work on the Project and was responsible for the defective concrete work, including required rebar; Construction Testing Services (“CTS”) was the consultant hired to inspect and certify completion of Cullinane’s work in a workmanlike manner and according to the plans and specifics approved by the City; and Defendant Al Norman Mechanical, Inc. (“Norman”) was the plumbing contractor on the Project responsible for all of the plumbing work done on the Project. (Cassidy Decl. at 410) proffered in regard to “defective” work which requires expert testimony and is unsupported by facts or evidence. The referenced declaration is without foundation and hearsay and without supporting evidence. 3. United Commercial Bank (“UCB”) was the original construction lender for the Project, agreeing to lend a total of $20,000,000 for construction of the Project (“Construction Loan”) pursuant to a Promissory Note, a Construction Loan Agreement, and a Construction Deed of Trust recorded against the Project on August 21, 2007. (Cassidy Decl., 3; Cassidy Exs. 2-3.) Undisputed. 4. In addition to pledging the Property as security for repayment of the Construction Loan, 4. Disputed. The definition of Mortgaged Property in the Deed of Trust did 4850-7978-3695.1 2 OPPASITION TO PLAINTIFFS SEPARATE STATEMENT OF TINDISPTITETD ADNITIONAT. MATERTAT. FACTS- cern an es YW BY _ So ae so ead A mH BF wD N under the Construction Deed of Trust and | include “all contracts and subcontracts relating Construction Loan Agreement borrower 973 | to improvements” in Sections 1.3.8, 1.3.13 and Market assigned to UCB “{aJll construction, |} 13.14. But the Trustee assigned these supply, engineering, and architectural contracts | contracts was U.F. Service Corporation executed and to be executed by Borrower for the “UE S.C? t UCB. See Reply. B construction of the Improvement,” and “[a]ll CUFS.C."), no » See Reply. Because causes of action, and all sums due or payable to | U-F.S.C. was never a party to the Corporation Borrower for injury or damage to the Mortgaged | Assignment, Plaintiff did not acquire the rights Property, ...including without limitation causes | of the Trustee and therefore the rights to the of aon and damages for preach of ¢ contract, contracts associated with the Mortgaged ud, con ent, construction et or other int 1 ‘ torts.” (Cassidy Ex. 3, §§ 1.3.14, 1.3.12, 1.3.13,at we St the Comeuction Lent Aurovtent sn 4; Cassidy Ex. 4, §14.1, at 22.) bolster its argument that Plaintiff was assigned causes of action by UCB, that clause states, at most, that 973 Market Associates, LLC assigned to UCB its then existing claims and causes of action relating to the Premises, and therefor UCB could only assign, at most, those tights held by UCB at the time of the signing of the Construction Loan Agreement. This dispute is a question of law and does not create a triable issue of fact. 5. Borrower 973 Market went into default on | 5. Undisputed. its obligations under the Construction Loan, and on March 5, 2009, UCB caused a Notice of Default and Election to Sell to be recorded under the Construction Deed of Trust. (Cassidy Decl,. 6). 6. On June 25, 2009, Plaintiff purchased from UCB all of UCB’s right, title and interest in and to the Construction Loan for $3.5 million under the terms of a written Loan Purchase Agreement. (Cassidy Ex. 1) . As part of Plaintiff's purchase, UCB | 7. Undisputed. However, the definition of endorsed the $20,000,000 Promissory Note over | Mortgaged Property in the Deed of Trust did to Plaintiff and assigned the Construction Deed of | include “all contracts and subcontracts relating Trust to Plaintiff pursuant to a Corporation | to Improvements” in Sections 1.3.8, 1.3.13 and Assignment of Deed of Trust recorded June 25, | 1.3.14. But the Trustee assigned these 2009, together with the balance of the Loan | contracts was U.F. Service Corporation Assets under the Construction Loan Agreement, | (“U.F.S.C.”), not UCB. See Reply. Because ‘including without limitation causes of action and | U.F.S.C. was never a party to the Corporation 6. Undisputed. 4850-7978-3695.1 OPPASITION TO PT AINTIFFS SEPARATE STATEMENT OF TINDISPHITED ANNITIONAT. MATERTAT. FACTS,damages for breach of contract, fraud, concealment, construction defects or other torts.” (Cassidy Dec. at 9] 4-5; Cassidy Ex. 11, at 3; Cassidy Ex. 4, $14.1, at 22; Cassidy Exs. 5-6). Assignment, Plaintiff did not acquire the rights of the Trustee and therefore the rights to the contracts associated with the Mortgaged Property. Although Plaintiff cites to section 14.1 of the Construction Loan Agreement to bolster its argument that Plaintiff was assigned causes of action by UCB, that clause states, at most, that 973 Market Associates, LLC assigned to UCB its then existing claims and causes of action relating to the Premises, and therefor UCB could only assign, at most, those tights held by UCB at the time of the signing of the Construction Loan Agreement. This dispute is a question of law and does not create a triable issue of fact. 8. At the time of Plaintiff's purchase of the Construction Loan, the defaulted balance owed by borrower 973 Market was in excess of $14,000,000, and the estimated cost of completing the Project was between $11.3 and $12.6 million (Cassidy Decl. ff] 6-7; Cassidy Ex. 7) 8. Undisputed as to the balance, disputed as to the cost to complete. The referenced declaration is without foundation and hearsay and without supporting evidence. This is not a 9. After obtaining relief from the automatic bankruptcy stay, on January 26, 2012, Plaintiff caused the Property to be sold at a non-judicial foreclosure sale under the Construction Deed of Trust. (Cassidy Decl. at 16.) Undisputed. material issue of fact. 10. ‘Plaintiff was the high bidder at the trustee’s sale and purchased the Property with a credit bid of $100,000, taking title to the Property under a Trustee’s Deed Upon Sale recorded March 9, 2010. (Cassidy Decl. at | 6; Cassidy Ex. 7) Undisputed. 11. At the time of the sale, the defaulted balance due on the Construction Loan was $15,199,856.27. (Cassidy Ex. 7.) 11. Undisputed. The referenced declaration is hearsay and the document speaks for itself. 12. After taking possession of the Property following the January 26, 2012 foreclosure, Plaintiff conducted “invasive and non-invasive inspections and demolition,” which exposed previously unknown defective workmanship throughout the Project on a massive scale, including widespread defects in the concrete work, window installations and plumbing. (Cassidy Decl., #¥] 8-10.) L 12. Undisputed, except as to the opinion proffered in regard to “defective” work which requires expert testimony and is unsupported by facts or evidence. Plaintiff's other company Centrix Construction inspected the property, spoke with building inspectors in preparation for submitting a detailed bid to complete construction at the Project. Centrix Construction placed this bid to complete the construction on November 7, 2008, prior to acquiring title, The Plaintiff acquired a 4850-7978-3695.1 OPPOSITION TO PY AINTIFES SEPARATE STATEMENT AR TINDISPTITED ANNITIONAT. MATERTAT. FACTSbuilding which was partially constructed with | knowledge that construction was not complete because the ownership between Plaintiff and Centrix Construction are one in the same. The referenced declaration is without foundation and is hearsay. This dispute does not create a triable issue of fact. Such an offering is entirely irrelevant to Defendants’ Motion 13. After taking possession of the Property, | 13. Disputed. Plaintiff's other company Plaintiff discovered that Defendants installed | Centrix Construction inspected the property, unreinforced concrete without the rebar| spoke with building inspectors in preparation installation integral to its structural integrity, | for submitting a detailed bid to complete improperly placed new concrete and removed | construction at the Project. Centrix pre-existing concrete, defectively installed new | Construction placed this bid to complete the windows through the building permitting wind | construction on November 7, 2008, prior to and water instruction and causing significant acquiring title. The Plaintiff acquired a moisture damage to the building. (Cassidy Decl. | building which was partially constructed with 171 8-10.) knowledge that construction was not complete because the ownership between Plaintiff and Centrix Construction are one in the same. The opinion proffered in regard to “defective” work requires expert testimony and is unsupported by facts or evidence. The referenced declaration is without foundation and is hearsay. This dispute does not create a triable issue of fact. Such an offering is entirely irrelevant to Defendants’ Motion 14. After taking possession of the Property, | 14. Disputed. Plaintiff's other company Plaintiff discoveted that Defendants had either | Centrix Construction inspected the property, destroyed or rendered useless the building’s pre- |_ spoke with building inspectors in preparation existing plumbing through defective installation | for submitting a detailed bid to complete of “replacement” plumbing fixtures and even the | construction at the Project. Centrix insertion of poured concrete into various pre- | Construction placed this bid to complete the existing pipes throughout the building. (Cassidy | construction on November 7, 2008, prior to 21|!! Decl. 48-10.) acquiring title. The Plaintiff acquired a 2 building which was partially constructed with knowledge that construction was not complete 23 because the ownership between Plaintiff and Centrix Construction are one in the same. 24 The opinion proffered in regard to “defective” work requires expert testimony and is unsupported by facts or evidence. The 6 referenced declaration is without foundation and is hearsay. This dispute does not create a 27 triable issue of fact. Such an offering is entirely irrelevant to Defendants’ Motion LEWIS 28 || 15. Defendants Cullinane, Norman and Kilamey | 15. Disputed. Defendants Responses to BRISBOIS BISGAARD 4850-7978-3695.1 5 SSMAHUP OPPOSITION TA PLAINTIFFS SEPARATE STATEMENT OR TINDISPHITED ANNITIONAT. MATERIAT FACTS ew er aA nH RB WN em it > &®& NY F&F S&S — na wm ype =e om oe @ NNLEWIS BRISBOIS BISGAARD &SVIHUP ce YD DH nH &® BY ND Mm yo» tt lack sufficient information to deny that Plaintiff | Plaintiff's Request for Admission No. 6 was has standing to assert the cause of action against each of them as alleged in the Second Amended Complaint. (Smith Ex., A, at 7:4-8:12; Smith Ex. C, at 7:4-8:12, Smith Ex. E, at 7:4-8:12) allowed by Code and has been misconstrued by Plaintiff. Defendants’ Responses to Plaintiff's Request for Admissions do not waive the bases for their Motion for Summary Judgment. The purposes of discovery laws in California are to (1) enable counsel to more quickly and thoroughly obtain evidence and evidentiary leads, and thus to more quickly and effectively prepare for trial, and (2) enable counsel to "set at rest" issues that are not genuinely disputed. Burke v. Superior Court, (1969) 71 Cal. 2d 276, 281. Plaintiff asserts that due to Defendants’ responses to requests for admission they have admitted that they have no facts that support their contention that Plaintiff is not the proper assignee from UCB regarding their asserted causes of action nor have standing with Tespect to their claims. However, Defendants’ argument regarding Plaintiffs lack of standing is based upon the interpretation of various documents. These documents are readily available to all parties and were in fact in Plaintiffs possession prior to the filing of the complaint herein. The requests for admission concerned the interpretation of these documents and not the discovery of relevant facts; this interpretation is a matter of law for the Court as there has been no allegation of extrinsic evidence. Parsons v. Bristol Development Co. (1965) 62 Cal. 2d 861. In this respect they simply request that Defendants explain their legal theories regarding Plaintiff's alleged lack of standing. Such requests are not a proper subject of discovery. Flora Crane Service, Inc. v. Superior Court (1965) 234 Cal. App. 2d 767, 781-782. As to the application of law to fact, discovery allows for unearthing a party’s contentions. In this case, the contention would simply be that Plaintiff does not have standing and that the alleged assignment did not perfect standing. At the time Plaintiff served the requests for admission, they had already been served with defendants’ motions for summary judgment. They, therefore, were already in 4850-7978-3695.1 6 OPPOSITION TO PL ATNTIFES SEPARATE STATEMENT OF TINDISPIITED ADDITIONAT MATERTAT. FACTSpossession of defendants’ detailed argument | and presentation of facts in support of the bases for the propositions they were testing by this discovery. Finally with respect to the requests for admission, Plaintiffs lack of standing to sue on their claims is treated as a "jurisdictional" defect and is not waived by defendant's failure to raise it by demurrer or answer. Contentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding or even on appeal for the first time. Cummings v. Stanley (2009)177 Cal. App. 4th 493, 501., Associated Builders & Contractors, Inc. v. San Francisco Airports Comm’n (1999) 21 Cal. 4th 352, 361. By this logic, defendants have not waived the defense of lack of standing for failing to repeat its argument and evidence in response to Plaintiff's requests when they had already been served on Plaintiff and filed with the Court. This dispute does not create a triable issue of fact. Such an offering is entirely irrelevant to Defendants’ Motion. 16. 16, Defendants Cullinane, Norman and Kilarney lack sufficient information to deny that Plaintiff has been damaged as a result of the work they each performed at 973 Market Street, San Francisco, California.(Smith Ex., A, at 7:4-8:12; Smith Ex. C, at 7:4-8:12, Smith Ex. E, at 7:4- 8:12) Disputed. Defendants Responses to Plaintiff's Request for Admission No. 7 was allowed by Code and has been misconstrued by Plaintiff. Defendants’ Responses to Plaintiff's Request for Admissions do not waive the bases for their Motion for Summary Judgment. The purposes of discovery laws in 19 California are to (1) enable counsel to more quickly and thoroughly obtain evidence and 20 evidentiary leads, and thus to more quickly and effectively prepare for trial, and (2) 21 enable counsel to "set at rest" issues that are n not genuinely disputed. Burke v, Superior Court, (1969) 71 Cal. 2d 276, 281. Plaintiff 23 asserts that due to Defendants’ responses to requests for admission they have admitted that 24 they have no facts that support their contention that Plaintiff is not the proper 25 assignee from UCB regarding their asserted 26 causes of action nor have standing with respect to their claims. However, Defendants’ 7 argument regarding PlaintifPs lack of standing is based upon the interpretation of LEws 28 tL various documents. These documents ‘ae | BRISBOIS BISGAARD 4850-7978-3695.1 1 SSMIHUP OPPASITION TO PI_AINTIFFS SEPARATE STATEMENT OF TINDISPTTITER ANNITIONAT. MATERTAY. FACTSLEWIS BRISBOIS BISGAARD &SMMHUP oe TI ADAH RB BH ND eB yoy N ma readily available to all parties and were in fact in Plaintiff's possession prior to the filing of the complaint herein. The requests for admission concerned the interpretation of these documents and not the discovery of relevant facts; this interpretation is a matter of law for the Court as there has been no allegation of extrinsic evidence, Parsons v. Bristol Development Co. (1965) 62 Cal. 2d 861. In this respect they simply request that Defendants explain their legal theories regarding Plaintiffs alleged lack of standing. Such requests are not a proper subject of discovery. Flora Crane Service, Inc. v. Superior Court (1965) 234 Cal. App. 2d 767, 781-782. As to the application of law to fact, discovery allows for unearthing a party’s contentions. In this case, the contention would simply be that Plaintiff does not have standing and that the alleged assignment did not perfect standing. At the time Plaintiff served the requests for admission, they had already been served with defendants’ motions for summary judgment. They, therefore, were already in Possession of defendants’ detailed argument and presentation of facts in support of the bases for the propositions they were testing by this discovery. Finally with respect to the requests for admission, Plaintiffs lack of standing to sue on their claims is treated as a "jurisdictional" defect and is not waived by defendant's failure to raise it by demurrer or answer. Contentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding or even on appeal for the first time. Cummings v. Stanley (2009)177 Cal. App. 4th 493, 501., Associated Builders & Contractors, Inc. v. San Francisco Airports Comm'n (1999) 21 Cal. 4th 352, 361. By this logic, defendants have not waived the defense of lack of standing for failing to repeat its argument and evidence in response to Plaintiff's requests when they had already been served on Plaintiff and filed with the Court. This dispute does not create a triable issue of fact. Such an offering is entirely irrelevant to Defendants’ 4850-7978-3695.1 OPPASITION TA PrATNTIFFS SEPARATE STATEMENT OF TINDISPTITEN ANNITIONAT, MATERTAT. FACTSMotion. 17. Defendants Cullinane, Norman and Kilarney | 17. Disputed. Defendants Responses to lack sufficient information to deny that Plaintiffis | Plaintiff's Request for Admission No. 4 was the explicit assignee from UCB of the claims that | allowed by Code and has been misconstrued Plaintiff has asserted against each of them in the | by Plaintiff. Defendants’ Responses to Second Amended Complaint. (Smith Ex., A, at | PlaintifPs Request for Admissions do not 5:23-6:13; Smith Ex. C, at 5:23-6:13, Smith Ex. | waive the bases for their Motion for Summary E, at 5:23-6:13) Judgment. The purposes of discovery laws in California are to (1) enable counsel to more quickly and thoroughly obtain evidence and evidentiary leads, and thus to more quickly and effectively prepare for trial, and (2) enable counsel to "set at rest" issues that are not genuinely disputed. Burke v. Superior Court, (1969) 71 Cal. 2d 276, 281. Plaintiff asserts that due to Defendants’ responses to requests for admission they have admitted that they have no facts that support their contention that Plaintiff is not the proper assignee from UCB regarding their asserted causes of action nor have standing with tespect to their claims. However, Defendants’ argument regarding Plaintiffs lack of standing is based upon the interpretation of various documents. These documents are readily available to all parties and were in fact in Plaintiff's possession prior to the filing of the complaint herein. The requests for admission concerned the interpretation of these documents and not the discovery of relevant facts; this interpretation is a matter of law for the Court as there has been no allegation of extrinsic evidence. Parsons v. Bristol Development Co. (1965) 62 Cal. 2d 861. In this respect they simply request that Defendants explain their legal theories regarding Plaintiffs alleged lack of standing. Such requests are not a proper subject of discovery. Flora Crane Service, Inc. v. Superior Court (1965) 234 Cal. App. 2d 767, 781-782. As to the application of law to fact, discovery allows for unearthing a party’s contentions. In this case, the contention would simply be that Plaintiff does not have standing and that the alleged assignment did not perfect standing. At the time Plaintiff served the requests for admission, they had already been served with ec eo YN DA HA FE WwW NY eS yoN Bia aa SRREBRBRERSRES RR EBB re »y 7 LEWIS BRISBOIS Ben 4850-7978-3695.1 _9 S&SVIHUP OPPOSITION TO PLAINTIFFS SEPARATE STATEMENT OF TINDISPHITET ADNITIONAT MATERTAT FACTSoO YN DH mR WD Dm N YR Y Bw NY WN mae BRU RREBRERSRSERSKREE ERE BE defendants’ motions for summary judgment. They, therefore, were already in possession of defendants’ detailed argument and presentation of facts in support of the bases for the propositions they were testing by this discovery. Finally with respect to the requests for admission, Plaintiffs lack of standing to sue on their claims is treated as a "jurisdictional" defect and is not waived by defendant's failure to raise it by demurrer or answer. Contentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the ‘proceeding or even on appeal for the first time. Cummings v. Stanley (2009)177 Cal. App. 4th 493, 501., Associated Builders & Contractors, Inc. v. San Francisco Airports Comm'n (1999) 21 Cal. 4th 352, 361. By this logic, defendants have not waived the defense of lack of standing for failing to repeat its argument and evidence in response to Plaintiff's requests when they had already been served on Plaintiff and filed with the Court. This dispute does not create a triable issue of fact. Such an offering is entirely irrelevant to Defendants’ Motion. | 18. Defendants Cullinane, Norman and Kilarney lack sufficient information to deny that the work each of them performed at 973 Market Street, San Francisco, California was negligently performed. (Smith Ex., A, at 8:13-9:3; Smith Ex. C, at 8:13- 9:3, Smith Ex. E, at 8:13-9:3) 18. Disputed. Defendants Responses to Plaintiff's Request for Admission No. 8 was allowed by Code and has been misconstrued by Plaintiff. Defendants’ Responses to Plaintiff's Request for Admissions do not waive the bases for their Motion for Summary Judgment. The purposes of discovery laws in California are to (1) enable counsel to more quickly and thoroughly obtain evidence and evidentiary leads, and thus to more quickly and effectively prepare for trial, and (2) enable counsel to "set at rest" issues that are not genuinely disputed. Burke v. Superior Court, (1969) 71 Cal. 2d 276, 281. Plaintiff asserts that due to Defendants’ responses to requests for admission they have admitted that they have no facts that support their contention that Plaintiff is not the proper assignee from UCB regarding their asserted causes of action nor have standing with respect to their claims. However, Defendants’ argument regarding Plaintiff's lack of 4850-7978-3695.1 OPPOSITION TO PLAINTIFFS SEPARATE STATEMENT OFT TNNISPTITEN ANDITIONAT. MATERIAT. FACTSco my A Hh RB WN 10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 standing is based upon the interpretation of | various documents. These documents are readily available to all parties and were in fact in Plaintiff's possession prior to the filing of the complaint herein. The requests for admission concerned the interpretation of these documents and not the discovery of relevant facts; this interpretation is a matter of law for the Court as there has been no allegation of extrinsic evidence. Parsons v. Bristol Development Co. (1965) 62 Cal. 2d 861. In this respect they simply request that Defendants explain their legal theories regarding Plaintiffs alleged lack of standing. Such requests are not a proper subject of discovery. Flora Crane Service, Inc, v, Superior Court (1965) 234 Cal. App. 2d 767, 781-782. As to the application of law to fact, discovery allows for unearthing a party’s contentions. In this case, the contention would simply be that Plaintiff does not have standing and that the alleged assignment did not perfect standing. At the time Plaintiff served the requests for admission, they had already been served with defendants’ motions for summary judgment. They, therefore, were already in possession of defendants’ detailed argument and presentation of facts in support of the bases for the propositions they were testing by this discovery. Finally with respect to the requests for admission, Plaintiff's lack of standing to sue on their claims is treated as a "jurisdictional" defect and is not waived by defendant's failure to raise it by demurrer or answer. Contentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding or even on appeal for the first time. Cummings y. Stanley (2009)177 Cal. App. 4th 493, 501., Associated Builders & Contractors, Inc. v. San Francisco Airports Comm’n (1999) 21 Cal. 4th 352, 361. By this logic, defendants have not waived the defense of lack of standing for failing to repeat its argument and evidence in response to Plaintiff's requests when they had already been served on Plaintiff and filed with the Court. This dispute 4850-7978-3695.1 —_l1 OPPOSITION TO PT AINTIFFS SEPARATE STATEMENT OF TINTISPITTEN ANNITIONAT. MATERIAT. FACTSoe ent aA un aw YD me Rn Py = om met Bs Se Tah EBGHKEE S does not create a triable issue of fact. Such an offering is entirely irrelevant to Defendants’ Motion. 19. Under Plaintiff's Loan Purchase Agreement with UCB, the “Loan Assets” purchased by the Loan Agreement, Promissory Note and Construction Deed of Trust from borrower 973 Market: Loan Assets shall mean, in respect of all the Loans, all right, title and interest of the Seller in and to the Loans, all related Loan Payments, all Loan Collateral, ... and other proceeds of any kind or nature in respect of such Loan Collateral, the Loan File, the Promissory Note, Mortgage, Security Agreement and all other Loan Documents evidencing or pertaining to such Loans and all other rights, remedies, privileges, benefits, causes of action or claims of Seller (whether known or unknown) arising from or related to such Loans. | (Cassidy Ex. 1, at 3). 19. Undisputed as to the accuracy of the quoted language, however, the referenced Plaintiffincluded the sum of UCB’s rights under | declaration is hearsay and the document speaks for itself. 20. The “rights, remedies, privileges, benefits, causes of action or claims” of seller UCB purchased by Plaintiff include the construction defect claims alleged against Defendants here, which were assigned to UCB by borrower 973 Market under the original Construction Loan Agreement: 14. Assignment of Causes of Action, Awards and Damages 14.1 All causes of action, and all sums due or payable to Borrower for injury or damage to the Mortgage Property, or as damages incurred in connect with the transactions in which the Loan secured hereby was made, including without limitation causes of action and damages for breach of contract, fraud, concealment, construction defects or other torts, ... are hereby assigned, and all proceeds from such causes of action and all such sums shall be paid to Lender for credit upon the Indebtedness secured hereby or as otherwise provided herein... Tan Th 20. Undisputed the Plaintiff purchased all tights held by UCB and the clauses quoted are accurate in their quotation, but DISPUTED as to Plaintiff's characterization of the rights purchased by Plaintiffs from UCB include the construction defect claims alleged against Defendants. This boilerplate, generic language does not specifically mention assignment of any claims that accrued to 973 Market Associates, LLC nor any claims regarding Defendants' work on the Premises, and completely fails to clearly manifest an intention to assign or transfer such claims. Moreover, this general clause mentions only causes of action or claims "of the Seller," rather than claims that accrued to 973 Market Associates, LLC. See Defendants’ Reply. This dispute is a question of law and does not create a triable issue of fact. 4850-7978-3695.1 OPPOSITION TO PY_ATNTIFES SEPARATE STATEMENT OF TINDISPLITEN ANNITIONAT MATERIAT. FACTS.» Mar-16-12) 12:48pm LEWIS BRISBOIS BISGAARD &SMIHUP rena coe a aA A > BW NY 10 DATED: March 16, 2012 From-LEWIS BR’ I$ BISGAARD + SMITH 4154340882 7-381 P.03/05 F786 [Cassidy Bx. 4, at 22. 21, The Construction Deed of Trust defines the Mortgaged Property against which UCB was given a security interest as including all “contract tights” and “claims against third pasties,” all “construction, supply, Improvements,” and the following: ..all plans and specifications for the Improvement; all contracts and subcontracts relating to the Improvements, all soils reports, engineering reports, environmental reports, land planning maps, drawings, construction contracts, notes, drafts, documents, engineering and architectural drawings, letters of credit, bonds, surety bonds, and other intangible rights, relating to the Land and Improvements, surveys and other reports, exhibits, or plans used or to be used in connection with the construction, planning, | operation, or maintenance of the Land and Improvements and all amendments and funds, accounts, contract rights, instruments, documents, general intangibles...,and notes or chattel paper arising from or in connection with the Land and other property; all permits, licenses, certificates, and other rights and privileges obtained in connection with the Land and Mortgaged Property; all proceeds arising from or by virtue of the sale, lease, grant of option or other disposition modifications thereof, all deposits..., of all or any part of the Mortgaged Property... | (Cassidy Ex. 3, at 4, 1). engineering, and architectural contracts executed and to be executed by Borrower of the construction of the 21. Undisputed as to the definition a Mortgaged Property in the Construction Deed of Trust, but DISPUTED as to whether a security interest in these rights was given to UCB. The Construction Deed of Trust states “Borrower does hereby GRANT, BARGAIN, SELL AND CONVEY unto Trustee the Mortgaged Property...” U.F. Service Corporation was the Trustee given a security interest in the Mortgaged Property in the Construction Deed of Trust, not UCB, UCB was solely the Beneficiary of the trust. As the Beneficiary, UCB never had a security interest in the Mortgaged Property it could have conveyed to Plaintiff. (Cassidy Ex, 3, at 1 2 and fl.) This boilerplate, generic language does not specifically mention assignment of any claims that accrued to 973 Market Associates, LLC nor any claims regarding Defendants’ work on the Premises, and completely fails to clearly manifest an intention to assign or transfer such claims. Moreover, this general clause mentions only causes of action or claims “of the Seller,” rather than claims that accrued to 973 Market Associates, LLC, See Defendants’ Reply, This dispute is a question of law and does not create a triable issue of fact. By: LEWIS BRISBOIS BISGAARD & SMITH LLP a Suzanne Jonathan G. Kepko Attorneys for Defendants and Cross-Defendants CULLINANE CONSTRUCTION, AL NORMAN MECHANICAL, INC. and Intervenor ASPEN) INSURANCE UK, LTD on behalf of Defendant and Cross-Defendant KILLARNEY CONSTRUCTION CO., a California suspended corporation 4850-7978-3695.1 13__ APPNETTION TO PY _AINTIFES SEPARATE STATRMENT NF TINTISPTITRN ANOITIONAT. MATERIAT. FACTSLEWIS BRISBOIS BISGAARD & SMITH LLP SUZANNE M. MARTIN, SB# 167079 E-Mail: martin@Ibbslaw.com JONATHAN G. KEPKO, SB# 263427 E-Mail: kepko@Ibbslaw.com One Sansome Street, Suite 1400 San Francisco, California 94104 Telephone: 415.362.2580 Facsimile: 415.434.0882 Attorneys for Defendants and Cross Defendants CULLINANE CONSTRUCTION; AL NORMAN FILED OURT county TRON FRANCISCO TNDMAR 16 PM 335) CLERK OF THE COU BY:. MECHANICAL, INC.; ASPEN INSURANCE UK, LTD, intervenor on behalf of Defendant and Cross-Defendant KILLARNEY CONSTRUCTION CO., a California suspended corporation SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PERFORMING ARTS, LCC, a Delaware corporation, Plaintiff, vs. KILLARNEY CONSTRUCTION CO., INC.; MID-MARKET DEVELOPMENT CO., INC.; CARDINAL CONSTRUCTION; AL NORMAN MECHANICAL, INC.; MICHAEL MURRAY; and DOES 1 through 200, inclusive, Defendants. AND RELATED CROSS-ACTIONS 4841-3298-5615.1 CASE NO. CGC 10 498405 PROOF OF SERVICE Action Filed: April 7, 2010 Trial Date: None Set ~ PROOF OF SERVICE Aud hdCc et AH Rh WN Pett eS edt AnH B&B BW NH SE S 20 CALIFORNIA STATE COURT PROOF OF SERVICE Performing Arts, LLC, v. Killarney Construction Co., Inc., et al. - File No. 28303-64 San Francisco Superior Court No. CGC-10-498405 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service, I was over 18 years of age and not a party to the action. My business address is One Sansome Street, Suite 1400, San Francisco, California 94104. On March 16, 2012, I served the following document(s): 1, DEFENDANTS’ CULLINANE CONSTRUCTION, AL NORMAN MECHANICAL, INC. AND INTERVENOR ASPEN INSURANCE UK, LTD ON BEHALF OF DEFENDANT AND CROSS-DEFENDANT KILLARNEY CONSTRUCTION CO., A CALIFORNIA SUSPENDED CORPORATION REPLY BRIEF TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 2. CULLINANE CONSTRUCTION, AL NORMAN MECHANICAL, INC. AND INTERVENOR ASPEN INSURANCE UK, LTD ON BEHALF OF DEFENDANT AND CROSS-DEFENDANT KILLARNEY CONSTRUCTION CO., A CALIFORNIA SUSPENDED CORPORATION OPPOSITION TO PLAINTIFF’S SEPARATE STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS 3. DEFENDANTS’ CULLINANE CONSTRUCTION, AL NORMAN MECHANICAL, INC, AND INTERVENOR ASPEN INSURANCE UK, LTD ON BEHALF OF DEFENDANT AND CROSS-DEFENDANT KILLARNEY CONSTRUCTION CO., A CALIFORNIA SUSPENDED CORPORATION RESPONSES TO PLAINTIFF'S OBJECTIONS TO EVIDENCE SUBMITTED BY DEFENDANTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 4, DEFENDANTS’ CULLINANE CONSTRUCTION, AL NORMAN MECHANICAL, INC. AND INTERVENOR ASPEN INSURANCE UK, LTD ON BEHALF OF DEFENDANT AND CROSS-DEFENDANT KILLARNEY CONSTRUCTION CO., A CALIFORNIA SUSPENDED CORPORATION OBJECTIONS TO PERFORMING ARTS, LLC’S EVIDENCE OFFERED IN SUPPORT OF ITS OPPOSITION 5. [PROPOSED] ORDER ON DEFENDANTS’ CULLINANE CONSTRUCTION, AL NORMAN MECHANICAL, INC. AND INTERVENOR ASPEN INSURANCE UK, LTD ON BEHALF OF DEFENDANT AND CROSS- DEFENDANT KILLARNEY CONSTRUCTION CO., A CALIFORNIA SUSPENDED CORPORATION OBJECTIONS TO PERFORMING ARTS, LLC’S EVIDENCE OFFERED IN SUPPORT OF ITS OPPOSITION 6. PROOF OF SERVICE I served the documents on the following persons at the following addresses (including fax numbers and e-mail addresses, if applicable): 4841 -3298-5615.1 1 PROOF OF SERVICELEWIS BRISBOIS BISGAARD &SMIHUP ATORNES ANA 7 2 ata nn aw N Py NYP YP NY NN NN YR Be Be Ree oe oe Oe OR Oe oe oy A wm YW YN BS OD BIA A HM BF BNR SE TS Gary A. Angel, Esq. Attorneys for Plaintiff Frear Stephen Schmid, Esq. LAW OFFICES OF GARY A. ANGEL Tel.: 415.788.5935 177 Post Street, 8th Floor Fax: 415.788.5958 San Francisco, CA 94108 Jeffrey H. Lowenthal, Esq. Attorneys for Plaintiff STEYER, LOWENTHAL, BOODROOKAS, ALVAREZ & SMITH LLP Tel.: 415.421.3400 One California Street, 3rd Floor Fax: 415.421.2234 San Francisco. CA 94111 Email: jlowenthal@steverlaw.com Jordan A. Sussman, Esq. Attorneys for Aspen Insurance UK, Ltd., ZIEF, DIMENT & GLICKMAN Intervenor for Killarney Construction, Co. 109 Geary Street, 4th Floor San Francisco, CA 94108 Tel.: 415.986-3644 Fax: 415.982.5130 Dion N. Cominos, Esq. Attorneys for Defendant/Cross-Defendant Mark C. Russell, Esq. Cardinal Consulting Inc. Olivia J. Bradbury, Esq. GORDON & REES Tel.: 415.986.5900 275 Battery Street, Suite 2000 Fax: 415.986.8054 San Francisco, CA 94111 Email: decominos@gordonrees.com Email: mrussell@gordonrees.com Email: obradburv@gordonrees.com John G. Dooling, Esq. Attorneys for Defendant/Cross-Complainant ROPERS, MAJESKI, KOHN & BENTLEY Construction Testing Services, Inc. 201 Spear Street, Suite 1000 San Francisco, CA 94105 Tel.: 415.543.4800 Fax: 415.972.6301 Email: idooling@ropers.com Todd B. Gary, Esq. Attorneys for Cullinane Construction THE GARY LAW FIRM 950 Risa Road, Second Floor Tel.: 925.831.1155 Lafayette, CA 94549 Fax: 925.831.1188 Email: teary@thegarvlawfirm.com Paul Manasian, Esq. Attorneys for Defendants Mid-Market Coque K. Dion, Esq. Development Co., Inc. and Michael Murray MANASIAN & ROUGEAU LLP 400 Montgomery Street, Suite 1000 Tel: 415.291.8425 San Francisco, CA 94104 Fax: 415.291.8426 Email: dion@mrlawsf.com Richard K. Bauman, Esq. Attorneys for Cross-Defendant/Cross- LAW OFFICES OF RICHARD K. BAUMAN | Complainant Santos & Urrutia Associates, 220 Montgomery Street, Suite 1500 Inc. San Francisco, CA 94104 Tel.: 415.982.5230 Fax: 415.397.1577 4841-3298-5615.1 2 PROOF OF SERVICEMar-16-12 12:47pm = From-LEWIS BR’ ~I$ BISGAARD + SMITH 4154340882 7-381 P.04/05 F-786 1 [ Email: roauman@att net 2 - The documents were served by the following means: ° gy (BY OVERNIGHT DELIVERY) | enclosed the documents in an envelope or ge 4 provided by an overnight delivery carrier and addressed to the persons at the dresses. listed above. I placed the envelope or package for collection and delivery at an office or a 5 regularly utilized drop box of the overnight delivery carrier, 6 I declare under penalty of perjury under the laws of the State of California that the 1 foregoing is true and correct. 8 Executed on March 1b 2012, at San Francisco, California. 9 to} Lf, + fs u s hail aha 1 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 ewe Sean — PROOF OP URVICE