Preview
MAO
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Mar-09-2012 11:48 am
Case Number: CGC-10-498405
Filing Date: Mar-09-2012 11:48
Juke Box: 001 Image: 03527637
SEPARATE STATEMENT OF FACTS
PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CoO., INC. et al
001003527637
Instructions:
Please place this sheet on top of the document to be scanned.
ILED
SUPER, 10R
Jeffrey H. Lowenthal (State Bar No. 111763) Cou INTY.OF
SA
Court
Edward Egan Smith (State Bar No. 169792) MERANCISCO
STEYER LOWENTHAL BOODROOKAS
ALVAREZ & SMITH LLP
202 R=9 AMI 42
One California Street, Third Floor CUERK. OF ‘THE CouRy
San Francisco, California 94111 Gy:
Telephone: (415) 421-3400 PUT Y:
Facsimile: (415) 421-2234
Gary A. Angel (State Bar No. 70006)
Frear Stephen Schmid (State Bar No. 96089)
Law Offices of Gary A. Angel
177 Post Street, Eight Floor
San Francisco, CA 94108
Telephone: (415) 788-5935
Facsimile: (415) 788-5958
Attorneys for Plaintiff and Cross-Defendant
10 PERFORMING ARTS, LLC
11
12 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 IN AND FOR THE COUNTY OF SAN FRANCISCO
14 UNLIMITED JURISDICTION
15
PERFORMING ARTS, LLC, a Delaware Case No. CGC-10-498405
16 limited liability company,
17 Plaintiff, PLAINTIFF PERFORMING ARTS,
LLC'S SEPARATE STATEMENT OF
18 VS. ADDITIONAL MATERIAL FACTS IN
OPPOSITION TO THE MOTION FOR
19 KILLARNEY CONSTRUCTION CO., INC., SUMMARY JUDGMENT OF
MID-MARKET DEVELOPMENT CO., INC., DEFENDANT CONSTRUCTION
20 CARDINAL CONSULTING INC., TESTING SERVICES, INC.
CULLINANE CONSTRUCTION, AL
21 NORMAN MECHANICAL, INC., MICHAEL
MURRAY, and DOES 1 THROUGH 200, Date: March 23, 2012
22 inclusive, Time: 9:30 AM
Dept: 302
23 Defendants.
Trial Date: September 24, 2012
24
AND RELATED CROSS-ACTIONS.
25
26
27
28
PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC.
|SAGRANITE\973 Market-Killamey\Summary Judgment - Defs\SSUF.addl.construction.wpd
Pursuant to California Code of Civil Procedure section 437c, Plaintiff PERFORMING
ARTS, LLC hereby submits the following separate statement of additional material facts,
together with references to supporting evidence, precluding summary judgment in favor of
Defendant Construction Testing Services, Inc. as follows:
MATERIAL FACTS PRECLUDING OPPOSING PARTY’S RESPONSE AND
SUMMARY ADJUDICATION AND SUPPORTING EVIDENCE
SUPPORTING EVIDENCE
1. 973 Market Street Associates, LLC (“973 1
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
10 renovation and seismic retrofitting project
that included construction of 67 residential
11 condominium units and 9,500 square feet of
ground floor commercial/retail space (the
12 “Project”).
13 (Cassidy Decl., 2-3).
14 2, Defendants MidMarket Development Co.,
Inc. (“MidMarket”) and Killarney
15 Construction Co., Inc. (“Killarney”) acted as
the general contractor responsible for all
16 work on the Project; Defendant Cullinane
Construction (“Culliane”) did the concrete
17 work on the Project and was responsible for
the defective concrete work, including
18 required rebar; Construction Testing Services
(CTS”) was the consultant hired to inspect
19 and certify completion of Cullinane’s work in
a workmanlike manner and according to the
20 plans and specifications approved by the
City; and Defendant Al Norman Mechanical,
21 Inc. (“Norman”) was the plumbing contractor
on the Project responsible for all of the
22 plumbing work done on the Project.
23 (Cassidy Decl., 10).
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC.
S\GRANITE\973 Market-KillameySummary Judgment - Defs\SSUF.addl.construction. wpd
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 31,
2007.
(Cassidy Decl., §3; Cassidy Exs. 2-3).
4. In addition to pledging the Property as
security for repayment of the Construction
Loan, under the Construction Deed of Trust
and Construction Loan Agreement borrower
973 Market assigned to UCB “[alll
construction, supply, engineering, and
10 architectural contracts executed and to be
executed by Borrower for the construction of
11 the Improvements,” and “[a]ll causes of
action, and all sums due or payable to
12 Borrower for injury or damage to the
Mortgaged Property, . . . including without
13 limitation causes of action and damages for
breach of contract, fraud, concealment,
14 construction defects or other torts.”
15 (Cassidy Ex. 3, §§ 1.3.14, 1.3.12, 1.3.13, at 4;
Cassidy Ex. 4, §14.1, at 22),
16
5. Borrower 973 Market went into default on
17 its obligations under the Construction Loan,
and on March 5, 2009, UCB caused a Notice
18 of Default and Election to Sell to be recorded
under the Construction Deed of Trust.
19
(Cassidy Decl., 6).
20
6. On June 25, 2009, Plaintiff purchased
21 from UCB all of UCB’s right, title and
interest in and to the Construction Loan for
22 $3.5 million under the terms of a written
Loan Purchase Agreement.
23
(Cassidy Ex. 1).
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC.
S:AGRANITE\973 Market-Killamey'Summary Judgment - Defs\SSUF addl.construction, wpd
7. As of Plaintiff's purchase, UCB
endorsed the $20,000,000 Promissory Note
over to Plaintiff and assigned the
Construction Deed of Trust to Plaintiff
pursuant to a Corporation Assignment of
Deed of Trust recorded June 25, 2009,
together with the balance of the Loan Assets
under the Construction Loan Agreement,
“including without limitation causes of action
and damages for breach of contract, fraud,
concealment, construction defects or other
torts.”
(Cassidy Decl., 9{]4-5; Cassidy Ex. 1, at 3;
Cassidy Ex. 4, 914.1, at 22; Cassidy Exs. 5-
8. At the time of Plaintiffs purchase of the
10 Construction Loan, the defaulted balance
owed by borrower 973 Market was in excess
11 of $14,000,000, and the estimated cost of
completing the Project was between $11.3
12 and 12.6 million.
13 (Cassidy Decl., 6-7; Cassidy Ex. 7).
14 9. After obtaining relief from the automatic
bankruptcy stay, on January 26, 2010,
15 Plaintiff caused the Property to be sold at a
non-judicial foreclosure sale under the
16 Construction Deed of Trust.
17 (Cassidy Decl., 6).
18 10. Plaintiff was the high bidder at the 10.
trustee’s sale and purchased the Property with
19 acredit bid of $100,000, taking title to the
Property under a Trustee’s Deed Upon Sale
20 recorded March 9, 2010.
21 (Cassidy Decl., 6; Cassidy Ex. 7).
11. At the time of the sale, the defaulted 11
22 balance due on the Construction Loan was
23
$15,199,856.27. (Cassidy Ex. 7).
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC.
|S\GRANITE\973 Market-Killamey\Summary Judgment - Defs\SSUF.addl, construction.
wpd
12. After taking possession of the Property 12
following the January 26, 2010 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., (98-10).
13. After taking possession of the Property, 13
Plaintiff discovered that Defendants installed
unreinforced concrete without the rebar
installation integral to its structural integrity,
improperly placed new concrete and removed
pre-existing concrete, defectively installed
10 new windows throughout the building
permitting wind and water intrusion and
11 causing significant moisture damage to the
building.
12
(Cassidy Decl., 98-10).
13
14. After taking possession of the Property, 14.
14 Plaintiff discovered that Defendants had
either destroyed or rendered useless the
15 building’s pre-existing plumbing through
defective installation of "replacement"
16 plumbing fixtures and even the insertion of
poured concrete into various pre-existing
17 pipes throughout the building.
18 (Cassidy Decl., {98-10).
19 15. Defendants Culinane, Normal and 15
Kilarney lack sufficient information to deny
20 that Plaintiff has standing to assert the cause
of action against each of them as alleged in
21 the Second Amended Complaint.
22 (Smith Ex., A, at 7:4-8:12; Smith Ex. C, at
7:4-8:12; Smith Ex. E, at 7:4-8:12).
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC,
SAGRANITEW73 Market-Killamey\Summary Judgment - Defs\SSUF.addl. construction.
wpd
16. Defendants Culinane, Normal and 16
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).
17. Defendants Culinane, Normal and 17.
Kilarney lack sufficient information to deny
that Plaintiff is the explicit assignee from
UCB of teh claims that Plaintiff has asserted
against each of them in the Second Amended
Complaint.
(Smith Ex. A, at 5:23-6:13; Smith Ex. C, at
10 5:23-6:13; Smith Ex. E, at 5:23-6:13).
11 18. Defendants Culinane, Normal and 18
Kilarney lack sufficient information to deny
12 that the work each of them performed at 973
Market Street, San Francisco, California was
13 negligently performed.
14 (Smith Ex. A, at 8:13-9:3, Smith Ex. C, at
8:13-9:3;, Smith Ex. E., at 8:13-9:3).
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27
5
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
ICONSTRUCTION TESTING SERVICES, INC.
SAGRANITE\973 Market-Killamey\Summary Judgment - Defs\SSUF.addl. construction. wpd
19. Under Plaintiff's Loan Purchase 19
Agreement with UCB, the “Loan Assets”
purchased by Plaintiff included the sum of
UCB’s rights under 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,
10 Security Agreement and all
other Loan Documents
11
evidencing or pertaining to
such Loans and all other
rights, remedies, privileges,
12
benefits, causes of action or
claims of Seller (whether
13
known or unknown) arising
from or related to such Loans.
14
15
(Cassidy Ex. 1, at 3).
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC.
S\GRANITE\973 Market-Killamey\Summary Judgment - Defs\SSUF.addl.construetion.wpd
20. the “rights, remedies, privileges, 20.
benefits, causes of action or claims” of seller
UCB purchased by Plaintiff included 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 connection with
10 the transactions in which the
Loan secured hereby was
11
made, including without
limitation causes of action and
damages for breach of
12
contract, fraud, concealment,
construction defects or other
13
torts, . . are hereby assigned,
14
and all proceeds from such
causes of action and all such
15 sums shall be paid to Lender
for credit upon the
16 Indebtedness secured hereby
or as otherwise provided
17 herein. ...
18 (Cassidy Ex. 4, at 22).
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC.
SAGRANITEW73 Market-Killamey\Summary Judgment - Defs\SSUF.addl. construction.
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21. The Construction Deed of Trust defines 21
the Mortgaged Property against which UCB
was given a security interest as including all
“contract rights” and “claims against third
parties,” all “construction, supply,
engineering, and architectural contracts
executed and to be executed by Borrower of
the construction of the Improvements,” and
the following:
...all plans and specifications
for the Improvements; all
contracts and subcontracts
relating to the Improvements,
all soils reports, engineering
reports, environmental reports,
land planning maps, drawings,
construction contracts, notes,
10 drafts, documents, engineering
and architectural drawings,
11
letters of credit, bonds, surety
12
bonds, any other intangible
rights, relating to the Land and
Improvements, surveys and
13
other reports, exhibits, or
plans used or to be used in
14 connection with the
construction, planning,
15 operation, or maintenance of
the Land and Improvements
16 and all amendments and
modifications thereof, all
17
deposits... , funds, accounts,
contract rights, instruments,
18
documents, general
intangibles ..., and notes or
19
chattel paper arising from or
20 in connection with the Land
and other property; all
permits, licenses, certificates,
21
and other rights and privileges
obtained in connection with
22
the Land and Mortgaged
Property; all proceeds arising
23
from or by virtue of the sale,
lease, grant of option or other
24
disposition of all or any part of
the Mortgaged Property... .
25
(Cassidy Ex. 3, at 4, 1).
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[PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC.
SAGRANITE(973 Market-KillameySummary Judgment - Defs\SSUF.addl.construction.wpd
1 || Dated: March % » 2012
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STEYER LOWENTHAL BOODROOKAS
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Jeffrey H. Lowenthal
4 Edward Egan Smith
Attorneys for Plaintiff and Cross-Defendant
PERFORMING ARTS, LLC
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL
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CONSTRUCTION TESTING SERVICES, INC.
S\GRANITE}973 Market Killarey\Summary Judgment - Defs\SSUF.addl.construction.wpd
Preview
MAO SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Mar-09-2012 11:48 am Case Number: CGC-10-498405 Filing Date: Mar-09-2012 11:48 Juke Box: 001 Image: 03527637 SEPARATE STATEMENT OF FACTS PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CoO., INC. et al 001003527637 Instructions: Please place this sheet on top of the document to be scanned. ILED SUPER, 10R Jeffrey H. Lowenthal (State Bar No. 111763) Cou INTY.OF SA Court Edward Egan Smith (State Bar No. 169792) MERANCISCO STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP 202 R=9 AMI 42 One California Street, Third Floor CUERK. OF ‘THE CouRy San Francisco, California 94111 Gy: Telephone: (415) 421-3400 PUT Y: Facsimile: (415) 421-2234 Gary A. Angel (State Bar No. 70006) Frear Stephen Schmid (State Bar No. 96089) Law Offices of Gary A. Angel 177 Post Street, Eight Floor San Francisco, CA 94108 Telephone: (415) 788-5935 Facsimile: (415) 788-5958 Attorneys for Plaintiff and Cross-Defendant 10 PERFORMING ARTS, LLC 11 12 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 IN AND FOR THE COUNTY OF SAN FRANCISCO 14 UNLIMITED JURISDICTION 15 PERFORMING ARTS, LLC, a Delaware Case No. CGC-10-498405 16 limited liability company, 17 Plaintiff, PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF 18 VS. ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR 19 KILLARNEY CONSTRUCTION CO., INC., SUMMARY JUDGMENT OF MID-MARKET DEVELOPMENT CO., INC., DEFENDANT CONSTRUCTION 20 CARDINAL CONSULTING INC., TESTING SERVICES, INC. CULLINANE CONSTRUCTION, AL 21 NORMAN MECHANICAL, INC., MICHAEL MURRAY, and DOES 1 THROUGH 200, Date: March 23, 2012 22 inclusive, Time: 9:30 AM Dept: 302 23 Defendants. Trial Date: September 24, 2012 24 AND RELATED CROSS-ACTIONS. 25 26 27 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. |SAGRANITE\973 Market-Killamey\Summary Judgment - Defs\SSUF.addl.construction.wpd Pursuant to California Code of Civil Procedure section 437c, Plaintiff PERFORMING ARTS, LLC hereby submits the following separate statement of additional material facts, together with references to supporting evidence, precluding summary judgment in favor of Defendant Construction Testing Services, Inc. as follows: MATERIAL FACTS PRECLUDING OPPOSING PARTY’S RESPONSE AND SUMMARY ADJUDICATION AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 1. 973 Market Street Associates, LLC (“973 1 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 10 renovation and seismic retrofitting project that included construction of 67 residential 11 condominium units and 9,500 square feet of ground floor commercial/retail space (the 12 “Project”). 13 (Cassidy Decl., 2-3). 14 2, Defendants MidMarket Development Co., Inc. (“MidMarket”) and Killarney 15 Construction Co., Inc. (“Killarney”) acted as the general contractor responsible for all 16 work on the Project; Defendant Cullinane Construction (“Culliane”) did the concrete 17 work on the Project and was responsible for the defective concrete work, including 18 required rebar; Construction Testing Services (CTS”) was the consultant hired to inspect 19 and certify completion of Cullinane’s work in a workmanlike manner and according to the 20 plans and specifications approved by the City; and Defendant Al Norman Mechanical, 21 Inc. (“Norman”) was the plumbing contractor on the Project responsible for all of the 22 plumbing work done on the Project. 23 (Cassidy Decl., 10). 24 25 26 27 1 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. S\GRANITE\973 Market-KillameySummary Judgment - Defs\SSUF.addl.construction. wpd 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 31, 2007. (Cassidy Decl., §3; Cassidy Exs. 2-3). 4. In addition to pledging the Property as security for repayment of the Construction Loan, under the Construction Deed of Trust and Construction Loan Agreement borrower 973 Market assigned to UCB “[alll construction, supply, engineering, and 10 architectural contracts executed and to be executed by Borrower for the construction of 11 the Improvements,” and “[a]ll causes of action, and all sums due or payable to 12 Borrower for injury or damage to the Mortgaged Property, . . . including without 13 limitation causes of action and damages for breach of contract, fraud, concealment, 14 construction defects or other torts.” 15 (Cassidy Ex. 3, §§ 1.3.14, 1.3.12, 1.3.13, at 4; Cassidy Ex. 4, §14.1, at 22), 16 5. Borrower 973 Market went into default on 17 its obligations under the Construction Loan, and on March 5, 2009, UCB caused a Notice 18 of Default and Election to Sell to be recorded under the Construction Deed of Trust. 19 (Cassidy Decl., 6). 20 6. On June 25, 2009, Plaintiff purchased 21 from UCB all of UCB’s right, title and interest in and to the Construction Loan for 22 $3.5 million under the terms of a written Loan Purchase Agreement. 23 (Cassidy Ex. 1). 24 25 26 27 2 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. S:AGRANITE\973 Market-Killamey'Summary Judgment - Defs\SSUF addl.construction, wpd 7. As of Plaintiff's purchase, UCB endorsed the $20,000,000 Promissory Note over to Plaintiff and assigned the Construction Deed of Trust to Plaintiff pursuant to a Corporation Assignment of Deed of Trust recorded June 25, 2009, together with the balance of the Loan Assets under the Construction Loan Agreement, “including without limitation causes of action and damages for breach of contract, fraud, concealment, construction defects or other torts.” (Cassidy Decl., 9{]4-5; Cassidy Ex. 1, at 3; Cassidy Ex. 4, 914.1, at 22; Cassidy Exs. 5- 8. At the time of Plaintiffs purchase of the 10 Construction Loan, the defaulted balance owed by borrower 973 Market was in excess 11 of $14,000,000, and the estimated cost of completing the Project was between $11.3 12 and 12.6 million. 13 (Cassidy Decl., 6-7; Cassidy Ex. 7). 14 9. After obtaining relief from the automatic bankruptcy stay, on January 26, 2010, 15 Plaintiff caused the Property to be sold at a non-judicial foreclosure sale under the 16 Construction Deed of Trust. 17 (Cassidy Decl., 6). 18 10. Plaintiff was the high bidder at the 10. trustee’s sale and purchased the Property with 19 acredit bid of $100,000, taking title to the Property under a Trustee’s Deed Upon Sale 20 recorded March 9, 2010. 21 (Cassidy Decl., 6; Cassidy Ex. 7). 11. At the time of the sale, the defaulted 11 22 balance due on the Construction Loan was 23 $15,199,856.27. (Cassidy Ex. 7). 24 25 26 27 3 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. |S\GRANITE\973 Market-Killamey\Summary Judgment - Defs\SSUF.addl, construction. wpd 12. After taking possession of the Property 12 following the January 26, 2010 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., (98-10). 13. After taking possession of the Property, 13 Plaintiff discovered that Defendants installed unreinforced concrete without the rebar installation integral to its structural integrity, improperly placed new concrete and removed pre-existing concrete, defectively installed 10 new windows throughout the building permitting wind and water intrusion and 11 causing significant moisture damage to the building. 12 (Cassidy Decl., 98-10). 13 14. After taking possession of the Property, 14. 14 Plaintiff discovered that Defendants had either destroyed or rendered useless the 15 building’s pre-existing plumbing through defective installation of "replacement" 16 plumbing fixtures and even the insertion of poured concrete into various pre-existing 17 pipes throughout the building. 18 (Cassidy Decl., {98-10). 19 15. Defendants Culinane, Normal and 15 Kilarney lack sufficient information to deny 20 that Plaintiff has standing to assert the cause of action against each of them as alleged in 21 the Second Amended Complaint. 22 (Smith Ex., A, at 7:4-8:12; Smith Ex. C, at 7:4-8:12; Smith Ex. E, at 7:4-8:12). 23 24 25 26 27 4 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC, SAGRANITEW73 Market-Killamey\Summary Judgment - Defs\SSUF.addl. construction. wpd 16. Defendants Culinane, Normal and 16 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). 17. Defendants Culinane, Normal and 17. Kilarney lack sufficient information to deny that Plaintiff is the explicit assignee from UCB of teh claims that Plaintiff has asserted against each of them in the Second Amended Complaint. (Smith Ex. A, at 5:23-6:13; Smith Ex. C, at 10 5:23-6:13; Smith Ex. E, at 5:23-6:13). 11 18. Defendants Culinane, Normal and 18 Kilarney lack sufficient information to deny 12 that the work each of them performed at 973 Market Street, San Francisco, California was 13 negligently performed. 14 (Smith Ex. A, at 8:13-9:3, Smith Ex. C, at 8:13-9:3;, Smith Ex. E., at 8:13-9:3). 15 16 17 18 19 20 21 22 23 24 25 26 27 5 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT ICONSTRUCTION TESTING SERVICES, INC. SAGRANITE\973 Market-Killamey\Summary Judgment - Defs\SSUF.addl. construction. wpd 19. Under Plaintiff's Loan Purchase 19 Agreement with UCB, the “Loan Assets” purchased by Plaintiff included the sum of UCB’s rights under 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, 10 Security Agreement and all other Loan Documents 11 evidencing or pertaining to such Loans and all other rights, remedies, privileges, 12 benefits, causes of action or claims of Seller (whether 13 known or unknown) arising from or related to such Loans. 14 15 (Cassidy Ex. 1, at 3). 16 17 18 19 20 21 22 23 24 25 26 27 6 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. S\GRANITE\973 Market-Killamey\Summary Judgment - Defs\SSUF.addl.construetion.wpd 20. the “rights, remedies, privileges, 20. benefits, causes of action or claims” of seller UCB purchased by Plaintiff included 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 connection with 10 the transactions in which the Loan secured hereby was 11 made, including without limitation causes of action and damages for breach of 12 contract, fraud, concealment, construction defects or other 13 torts, . . are hereby assigned, 14 and all proceeds from such causes of action and all such 15 sums shall be paid to Lender for credit upon the 16 Indebtedness secured hereby or as otherwise provided 17 herein. ... 18 (Cassidy Ex. 4, at 22). 19 20 21 22 23 24 25 26 27 7 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. SAGRANITEW73 Market-Killamey\Summary Judgment - Defs\SSUF.addl. construction. wpd 21. The Construction Deed of Trust defines 21 the Mortgaged Property against which UCB was given a security interest as including all “contract rights” and “claims against third parties,” all “construction, supply, engineering, and architectural contracts executed and to be executed by Borrower of the construction of the Improvements,” and the following: ...all plans and specifications for the Improvements; all contracts and subcontracts relating to the Improvements, all soils reports, engineering reports, environmental reports, land planning maps, drawings, construction contracts, notes, 10 drafts, documents, engineering and architectural drawings, 11 letters of credit, bonds, surety 12 bonds, any other intangible rights, relating to the Land and Improvements, surveys and 13 other reports, exhibits, or plans used or to be used in 14 connection with the construction, planning, 15 operation, or maintenance of the Land and Improvements 16 and all amendments and modifications thereof, all 17 deposits... , funds, accounts, contract rights, instruments, 18 documents, general intangibles ..., and notes or 19 chattel paper arising from or 20 in connection with the Land and other property; all permits, licenses, certificates, 21 and other rights and privileges obtained in connection with 22 the Land and Mortgaged Property; all proceeds arising 23 from or by virtue of the sale, lease, grant of option or other 24 disposition of all or any part of the Mortgaged Property... . 25 (Cassidy Ex. 3, at 4, 1). 26 27 8 28 [PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. SAGRANITE(973 Market-KillameySummary Judgment - Defs\SSUF.addl.construction.wpd 1 || Dated: March % » 2012 bo | STEYER LOWENTHAL BOODROOKAS 2 3 Jeffrey H. Lowenthal 4 Edward Egan Smith Attorneys for Plaintiff and Cross-Defendant PERFORMING ARTS, LLC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 9 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF ADDITIONAL MATERIAL FACTS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. S\GRANITE}973 Market Killarey\Summary Judgment - Defs\SSUF.addl.construction.wpd