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DUM
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Mar-09-2012 11:44 am
Case Number: CGC-10-498405
Filing Date: Mar-09-2012 11:44
Juke Box: 001 Image: 03527621
OPPOSITION
PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al
001003527621
Instructions:
Please place this sheet on top of the document to be scanned.
SUPERIO.
cou. NTY OF § Rou:
Jeffrey H. Lowenthal (State Bar No. 111763) AM FRANCISCO
Edward Egan Smith (State Bar No. 169792)
STEYER LOWENTHAL BOODROOKAS 20/2 MAR -9 AM IY
ALVAREZ & SMITH LLP
One California Street, Third Floor
CLERK oF 7 8
By. OURT
San Francisco, California 94111
DEPT:
Telephone: (415) 421-3400
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 OPPOSITION SEPARATE
18 vs. STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT OF
19 KILLARNEY CONSTRUCTION CO., INC., ITS OPPOSITION TO THE MOTION
MID-MARKET DEVELOPMENT CO., INC., FOR SUMMARY JUDGMENT OF
20 CARDINAL CONSULTING INC., DEFENDANT CONSTRUCTION
CULLINANE CONSTRUCTION, AL TESTING SERVICES, INC.
21 NORMAN MECHANICAL, INC., MICHAEL
MURRAY, and DOES | THROUGH 200,
22 inclusive, Date: March 23, 2012
Time: 9:30 AM
23 Defendants. Dept: 302
24 Trial Date: September 24, 2012
AND RELATED CROSS-ACTIONS.
25
26
27
28
PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
TN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC.
SAGRANITEW73 Market-Killamey\Summary Judgment - Defs\SSUF. construction. wpd
Plaintiff PERFORMING ARTS, LLC hereby submits its separate statement of
undisputed material facts in support of its opposition to the motion for summary judgement of
defendant CONSTRUCTION TESTING SERVICES, INC. ("CTS") as follows:
DEFENDANT'S UNDISPUTED PLAINTIFF'S RESPONSE AND
MATERIAL FACTS AND SUPPORTING EVIDENCE
EVIDENCE
1 On August 3, 2007, the owner of the 1. Undisputed, however, the referenced
real property located at 973 Market Street, declaration is without foundation and hearsay
San Francisco, California (the "Premises"), and does not support the stated fact.
973 Market Street Associates, LLC ("973
Market"), took out a $20 million construction
loan from United Commercial Bank (the
"UCB Loan") in order to renovate and retrofit
10 the Premises. (Declaration of Devin C.
Courteau in Support of Construction Testing
11 Services, Inc.'s Motion for Summary
Judgment ("Courteau Decl."), Ex. B at p. 1;
12 Request for Judicial Notice in Support of
Construction Testing Services, Inc.'s Motion
13 for Summary Judgment ("RIN"), re Courteau
Decl. Ex. A at % 1.)
14
2. That UCB Loan was secured by a first 2. Undisputed, however, the referenced
15 deed of trust on the Premises. (Courteau declaration is without foundation and hearsay
Decl., Ex. D.) and does not support the stated fact..
16
3 Construction Testing Services, Inc. 3. Disputed and Objection. The cited
was retained by 973 Market's general declaration is without foundation and hearsay
17 and violates the best evidence rule to the
contractor, MidMarket Development Co.,
Inc. ("MidMarket"), to perform concrete and extent the alleged “fact” purports to
18 characterize the terms under which CTS
shotcrete special inspection and material
testing at the Premises, on an as needed basis. performed its work.
19
(Declaration of James E. Doyle in Support of
20 Construction Testing Services, Inc.'s Motion
for Summary Judgment on Plaintiffs
21 Complaint ("Doyle Decl.") at {fj 3-4.)
4. On March 19, 2008, 973 Market 4. Disputed and Objection. The cited
22 halted construction activity at the Premises, declarations are without foundation and
and thereafter CTS performed no work at the hearsay and do not support this “fact,” which
23 Premises. (Courteau Decl., Ex. E; Doyle is in any event immaterial to any claim or
Decl. at § 5. defense at issue under Plaintiff's Second
24 Amended Complaint.
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC,
|S\GRANITE\973 Market-Killamey\Summary Judgment - Defs\SSUF. construction.
wpd
5 On August 21, 2008, 973 Market 5. Disputed and Objection. The cited
became estranged with MidMarket and declaration is without foundation and hearsay
terminated it as general contractor at the and does not support this “fact,” which is in
Premises. Courteau Decl., Ex. F.) any event immaterial to any claim or defense
at issue under Plaintiff's Second Amended
Complaint.
6. In late 2008, 973 Market retained 6. Disputed and Objection. The cited
Centrix Builders, Inc. (Centrix") to inspect evidence does not support the premise of the
the Premises and prepare a bid to complete “fact” and, further, the fact is immaterial to
the project while serving as general any claim or defense at issue under Plaintiff's
contractor. (Courteau Decl., Ex. G and Ex. I Second Amended Complaint.
at 30:13-22, 31:2-17, 32:3-25, 41:24 — 42:9,
44:16-45:12.)
7 Centrix inspected the Premises, 7. Disputed and Objection. The cited
specifically noting extensive problems with evidence Jacks foundation, does not support
the construction concrete and shotcrete work the stated “fact” and the evidence is
10 performed by the subcontractors who had immaterial to any claim or defense at issue
worked on the construction project, and under Plaintiff's Second Amended
11 prepared an estimate/bid to complete the Complaint.
construction project at the Premises.
12 (Courteau Decl., Ex. I at 35:24 — 36:16,
46:14 — 47:5, 48:5-18, 49:25 — 50:3, 51:21 —
13 52:8, 56:21 - 57:5, 66:4-23, 67:16 — 68:3.)
8 Centrix is and was at the time it 8. Undisputed, however, the referenced
14 declaration lacks foundation, does not
prepared the bid/estimate for the Premises
wholly owned by Joe Cassidy. (Courteau support the stated “fact” and the evidence is
15 immaterial to any claim or defense at issue
Decl., Ex. I at 12:24 — 13:7.)
under Plaintiff's Second Amended
16
Complaint.
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC.
SAGRANITE\973 Market-Killamey\Summary Judgment - Defs\SSUF construction wpd
9 Plaintiff Performing Arts, LLC 9. Disputed and Objection to the extent the
("Plaintiff) was formed on June 18, 2009, referenced declaration lacks foundation, does
with Joe Cassidy as Plaintiff's sole member not support the stated “fact” and the evidence
and Centrix as its initial manager, and thus is immaterial to any claim or defense at issue
had knowledge of the alleged construction under Plaintiff's Second Amended
defects at the Premises. (Courteau Decl., Ex: Complaint. Plaintiff under no circumstance
J and Ex. I at 16:9-18.) was aware of all of the defects at the Property
much of which were hidden and latent
defects, specifically with reference to the
defective concrete/rebar inspection work ,
such defects were latent and not visible. It
was only once Plaintiff took possession of the
building at the Property that it became aware
of the unknown and latent construction
defects in the building, and physical damage
to the building resulting from the
construction activities undertaken by
defendants. Plaintiff gained this knowledge
10 through invasive and non-invasive
inspections and demolition that exposed the
11 defective workmanship, some of which was
concealed by concrete. (Cassidy Decl., 4¥8-
12 10).
13 10. On June 25, 2009, Plaintiff acquired 10. Disputed and Objection. The referenced
the UCB Loan and deed of trust through a declaration lacks foundation is hearsay, does
14 Loan Purchase Agreement with United not support the stated “fact” and is
Commercial Bank ("UCB"), pursuant to incomplete. On June 25, 2009, Plaintiff
15 which Plaintiff paid $3.5 million. (Courteau purchased from UCB all of UCB’s right, title
Decl., Ex. K and Ex. | at 24:8-12.) and interest in and to the Construction Loan
16 for $3.5 million under the terms of a written
Loan Purchase Agreement. (Cassidy Ex. 1).
17 As part of Plaintiff's purchase, UCB assigned
the Construction Deed of Trust to Plaintiff
18 pursuant to a Corporation Assignment of
Deed of Trust recorded June 25, 2009,
19 together with the balance of the Loan Assets
under the Construction Loan Agreement,
20 “including without limitation causes of action
and damages for breach of contract, fraud,
21 concealment, construction defects or other
torts.” (Cassidy Decl., {{§4-5; Cassidy Ex. 1,
22 at 3; Cassidy Ex. 4, 414.1, at 22; Cassidy
Exs. 5-6).
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC.
|S\GRANITE\973 Market-Killamey'Summary Judgment - Defs\SSUF. construction. wpd
11. Through the Loan Purchase ll. Disputed and Objection. The
Agreement with UCB, Plaintiff also acquired referenced declaration lacks foundation is
seven guarantees of the UCB Loan executed hearsay, does not support the stated “fact,” is
by members of 973 Market. (Courteau Decl., incomplete and that this “fact” is immaterial
Ex. B at § 1.11 * RJN re Courteau Decl. Ex. to any claim or defense at issue under
Mat 19 5-7.) Plaintiff's Second Amended Complaint.
Plaintiff purchased from UCB all of UCB’s
tight, title and interest in and to the
Construction Loan under the terms of a
written Loan Purchase Agreement. (Cassidy
Ex. 1). As part of Plaintiff's purchase, UCB
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
10
contract, fraud, concealment, construction
defects or other torts.” (Cassidy Decl., 94-5;
11
Cassidy Ex. 1, at 3; Cassidy Ex. 4, 914.1, at
22; Cassidy Exs. 5-6).
12
12, As of June 25, 2009, over $13.7 12. Disputed and Objection. The referenced
13 million remained outstanding on the UCB declaration lacks foundation, is hearsay, does
Loan, (Courteau Decl., Ex. K at Ex. 2 not support the stated “fact” or the suggestion
14 attached thereto.) that the outstanding baiance has or will be
paid and is incomplete. As of Plaintiff's
15 purchase of the Construction Loan the
outstanding defaulted balance exceeded $14
16 million, however, shortly after Plaintiff's
June 25, 2009 purchase of the Construction
17 Loan, borrower 973 Market filed for
bankruptcy protection. (Cassidy Decl., 496-
18 7; Cassidy Ex. 7). After obtaining relief from
the automatic bankruptcy stay, on January 26,
19 2010, Plaintiff caused the Property to be sold
at a non-judicial foreclosure sale under the
20 Construction Deed of Trust. (Cassidy Decl.,
§6). Plaintiff was the high bidder at the
21 trustee’s sale and purchased the Property with
a credit bid of $100,000, taking title to the
22 Property under a Trustee’s Deed Upon Sale
recorded March 9, 2010. (Cassidy Decl., 6;
23 Cassidy Ex. 7).
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC.
SSGRANITE(973 Market-Killamey'Summary Judgment - Defs\SSUF construction wpd
13. In the Loan Purchase Agreement with 13. Disputed and Objection. The
UCB, Plaintiff specifically agreed that the referenced declaration is without foundation
purchase was on an “as is" basis. (Courteau and hearsay and does not support the stated
Deci., Ex. K at §§ 3(i) and 6(H)(vii). conclusion. The isolated sections of the Loan
Purchase Agreement referenced in this fact
knowledge that, “Subject to [UCB’s]
representations and warranties contained
herein, [Plaintiff] is purchasing the Loan
Assets ‘as is’ and ‘with all faults, defaults
and events of default” and subject to the
terms of this Agreement.” The provisions of
the Loan Purchase Agreement must be read
together. The Loan Purchase Agreement
transferred all Loan Assets, including UCB’s
tights under the Construction Deed of Trust
and Construction Loan Agreement by which
borrower 973 Market assigned to UCB “{ajll
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.” (Cassidy
Ex. 3, §§ 1.3.14, 1.3.12, 1.3.13, at 4; Cassidy
15 Ex. 4, §14.1, at 22).
16 14, The Loan Purchase Agreement with 14. Disputed and Objection. The
UCB does not set forth a clear manifestation referenced declaration is without foundation
17 of an intent by UCB to assign to Plaintiff 973 and hearsay and does not support the stated
Market's alleged construction defect claim conclusion. The Loan Purchase Agreement
18 against CTS. (Courteau Decl., Ex. K at § transferred all Loan Assets, including UCB’s
3@).) rights under the Construction Deed of Trust
19 and Construction Loan Agreement by which
borrower 973 Market assigned to UCB “(alll
20 construction, supply, engineering, and
architectural contracts executed and to be
21 executed by Borrower for the construction of
the Improvements,” and “[a]ll causes of
22 action, and all sums due or payable to
Borrower for injury or damage to the
23 Mortgaged Property, . including without
limitation causes of action and damages for
24 breach of contract, fraud, concealment,
construction defects or other torts.” (Cassidy
25 Ex. 3, §§ 1.3.14, 1.3.12, 1.3.13, at 4; Cassidy
Ex. 4, §14.1, at 22).
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC.
]S:\GRANITE\973 Market-Killamey'Summary Judgment - Defs\SSUF. construction wpd
15. As of June 25, 2009, the Premises 15. Disputed and Objection. The
was worth between $8.5 million to $9 referenced declaration lacks foundation, is
million. (Courteau Decl., Ex. C and Ex. I at hearsay, and does not support the stated
124:24— 125:11.) “fact.” As of Plaintiffs purchase of the
Construction Loan the outstanding defaulted
balance exceeded $14 million, however,
shortly after Plaintiff's June 25, 2009
purchase of the Construction Loan, borrower
973 Market filed for bankruptcy protection.
(Cassidy Decl., 96-7; Cassidy Ex. 7). After
obtaining relief from the automatic
bankruptcy stay, on January 26, 2010,
Plaintiff caused the Property to be sold at a
non-judicial foreclosure sale under the
Construction Deed of Trust. (Cassidy Decl.,
96). Plaintiff was the high bidder at the
trustee’s sale and purchased the Property with
acredit bid of $100,000, taking title to the
10
Property under a Trustee’s Deed Upon Sale
recorded March 9, 2010. (Cassidy Decl., 6;
11
Cassidy Ex. 7).
12 16. After executing the Loan Purchase 16. Disputed and Objection. The
Agreement with UCB, Plaintiff foreclosed on referenced declaration lacks foundation, is
13 the Premises and purchased the Premises at a hearsay, and does not support the stated
Trustee Sale. (Courteau Decl., Ex. I at “fact.” Shortly after Plaintiff's June 25, 2009
14 138:23 — 139:6, and Ex. L.) purchase of the Construction Loan, borrower
973 Market filed for bankruptcy protection.
15 (Cassidy Decl., 46-7; Cassidy Ex. 7). After
obtaining relief from the automatic
16 bankruptcy stay, on January 26, 2010,
Plaintiff caused the Property to be sold at a
17 non-judicial foreclosure sale under the
Construction Deed of Trust. (Cassidy Decl.,
18 §(6). Plaintiff was the high bidder at the
trustee’s sale and purchased the Property with
19 a credit bid of $100,000, taking title to the
Property under a Trustee’s Deed Upon Sale
20 recorded March 9, 2010. (Cassidy Decl., 6;
Cassidy Ex. 7).
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC.
|S\GRANITE}973 Market-Killamey\Summary Judgment - DefS\SSUF,construction, wpd
1
17. Plaintiff's construction defect claim 17, Disputed and Objection. Plaintiff
2 against CTS is based on its status as "the asserts its claims herein as the foreclosing
assignee and successor in interest" to UCB lender and current owner and as the
through the Loan Purchase Agreement dated successor in interest and assignee of all
June 25, 2009. (RJN and Courteau Dec!., claims held by 973 Market Associates, LLC
Ex. A at 4 1, 11.) (“973 Market”), the original borrower and
owner of the Project, “including without
limitation causes of action and damages for
breach of contract, fraud, concealment,
construction defects or other torts,” as a result
of Plaintiff's purchase of the Project as the
foreclosing beneficiary under the
construction deed of trust given by 973
Market. The Loan Purchase Agreement
transferred all Loan Assets, including UCB’s
rights under the Construction Deed of Trust
and Construction Loan Agreement by which
10 borrower 973 Market assigned to UCB “[a]ll
construction, supply, engineering, and
11 architectural contracts executed and to be
executed by Borrower for the construction of
12 the Improvements,” and “[a]ll causes of
action, and all sums due or payable to
13 Borrower for injury or damage to the
Mortgaged Property, . including without
14 limitation causes of action and damages for
breach of contract, fraud, concealment,
15 construction defects or other torts.” (Cassidy
Ex. 3, §§ 1.3.14, 1.3.12, 1.3.13, at 4; Cassidy
16 Ex. 4, §14.1, at 22).
17
18
Dated: March 7 » 2012 STEYER LOWENTHAL BOODROOKAS
19
ALY, Z $4SMITH LLP
20
21 By:
Jeffrey H. Lowenthal
22 Edward Egan Smith
Attorneys for Plaintiff and Cross-Defendant
23 PERFORMING ARTS, LLC
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PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT
CONSTRUCTION TESTING SERVICES, INC.
S\GRANITE\973 Market-Killamey\Summary Judgment - Defs\SSUF. construction wpd
Preview
DUM SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Mar-09-2012 11:44 am Case Number: CGC-10-498405 Filing Date: Mar-09-2012 11:44 Juke Box: 001 Image: 03527621 OPPOSITION PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al 001003527621 Instructions: Please place this sheet on top of the document to be scanned. SUPERIO. cou. NTY OF § Rou: Jeffrey H. Lowenthal (State Bar No. 111763) AM FRANCISCO Edward Egan Smith (State Bar No. 169792) STEYER LOWENTHAL BOODROOKAS 20/2 MAR -9 AM IY ALVAREZ & SMITH LLP One California Street, Third Floor CLERK oF 7 8 By. OURT San Francisco, California 94111 DEPT: Telephone: (415) 421-3400 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 OPPOSITION SEPARATE 18 vs. STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF 19 KILLARNEY CONSTRUCTION CO., INC., ITS OPPOSITION TO THE MOTION MID-MARKET DEVELOPMENT CO., INC., FOR SUMMARY JUDGMENT OF 20 CARDINAL CONSULTING INC., DEFENDANT CONSTRUCTION CULLINANE CONSTRUCTION, AL TESTING SERVICES, INC. 21 NORMAN MECHANICAL, INC., MICHAEL MURRAY, and DOES | THROUGH 200, 22 inclusive, Date: March 23, 2012 Time: 9:30 AM 23 Defendants. Dept: 302 24 Trial Date: September 24, 2012 AND RELATED CROSS-ACTIONS. 25 26 27 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS TN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. SAGRANITEW73 Market-Killamey\Summary Judgment - Defs\SSUF. construction. wpd Plaintiff PERFORMING ARTS, LLC hereby submits its separate statement of undisputed material facts in support of its opposition to the motion for summary judgement of defendant CONSTRUCTION TESTING SERVICES, INC. ("CTS") as follows: DEFENDANT'S UNDISPUTED PLAINTIFF'S RESPONSE AND MATERIAL FACTS AND SUPPORTING EVIDENCE EVIDENCE 1 On August 3, 2007, the owner of the 1. Undisputed, however, the referenced real property located at 973 Market Street, declaration is without foundation and hearsay San Francisco, California (the "Premises"), and does not support the stated fact. 973 Market Street Associates, LLC ("973 Market"), took out a $20 million construction loan from United Commercial Bank (the "UCB Loan") in order to renovate and retrofit 10 the Premises. (Declaration of Devin C. Courteau in Support of Construction Testing 11 Services, Inc.'s Motion for Summary Judgment ("Courteau Decl."), Ex. B at p. 1; 12 Request for Judicial Notice in Support of Construction Testing Services, Inc.'s Motion 13 for Summary Judgment ("RIN"), re Courteau Decl. Ex. A at % 1.) 14 2. That UCB Loan was secured by a first 2. Undisputed, however, the referenced 15 deed of trust on the Premises. (Courteau declaration is without foundation and hearsay Decl., Ex. D.) and does not support the stated fact.. 16 3 Construction Testing Services, Inc. 3. Disputed and Objection. The cited was retained by 973 Market's general declaration is without foundation and hearsay 17 and violates the best evidence rule to the contractor, MidMarket Development Co., Inc. ("MidMarket"), to perform concrete and extent the alleged “fact” purports to 18 characterize the terms under which CTS shotcrete special inspection and material testing at the Premises, on an as needed basis. performed its work. 19 (Declaration of James E. Doyle in Support of 20 Construction Testing Services, Inc.'s Motion for Summary Judgment on Plaintiffs 21 Complaint ("Doyle Decl.") at {fj 3-4.) 4. On March 19, 2008, 973 Market 4. Disputed and Objection. The cited 22 halted construction activity at the Premises, declarations are without foundation and and thereafter CTS performed no work at the hearsay and do not support this “fact,” which 23 Premises. (Courteau Decl., Ex. E; Doyle is in any event immaterial to any claim or Decl. at § 5. defense at issue under Plaintiff's Second 24 Amended Complaint. 25 26 27 1 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC, |S\GRANITE\973 Market-Killamey\Summary Judgment - Defs\SSUF. construction. wpd 5 On August 21, 2008, 973 Market 5. Disputed and Objection. The cited became estranged with MidMarket and declaration is without foundation and hearsay terminated it as general contractor at the and does not support this “fact,” which is in Premises. Courteau Decl., Ex. F.) any event immaterial to any claim or defense at issue under Plaintiff's Second Amended Complaint. 6. In late 2008, 973 Market retained 6. Disputed and Objection. The cited Centrix Builders, Inc. (Centrix") to inspect evidence does not support the premise of the the Premises and prepare a bid to complete “fact” and, further, the fact is immaterial to the project while serving as general any claim or defense at issue under Plaintiff's contractor. (Courteau Decl., Ex. G and Ex. I Second Amended Complaint. at 30:13-22, 31:2-17, 32:3-25, 41:24 — 42:9, 44:16-45:12.) 7 Centrix inspected the Premises, 7. Disputed and Objection. The cited specifically noting extensive problems with evidence Jacks foundation, does not support the construction concrete and shotcrete work the stated “fact” and the evidence is 10 performed by the subcontractors who had immaterial to any claim or defense at issue worked on the construction project, and under Plaintiff's Second Amended 11 prepared an estimate/bid to complete the Complaint. construction project at the Premises. 12 (Courteau Decl., Ex. I at 35:24 — 36:16, 46:14 — 47:5, 48:5-18, 49:25 — 50:3, 51:21 — 13 52:8, 56:21 - 57:5, 66:4-23, 67:16 — 68:3.) 8 Centrix is and was at the time it 8. Undisputed, however, the referenced 14 declaration lacks foundation, does not prepared the bid/estimate for the Premises wholly owned by Joe Cassidy. (Courteau support the stated “fact” and the evidence is 15 immaterial to any claim or defense at issue Decl., Ex. I at 12:24 — 13:7.) under Plaintiff's Second Amended 16 Complaint. 17 18 19 20 21 22 23 24 25 26 27 2 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. SAGRANITE\973 Market-Killamey\Summary Judgment - Defs\SSUF construction wpd 9 Plaintiff Performing Arts, LLC 9. Disputed and Objection to the extent the ("Plaintiff) was formed on June 18, 2009, referenced declaration lacks foundation, does with Joe Cassidy as Plaintiff's sole member not support the stated “fact” and the evidence and Centrix as its initial manager, and thus is immaterial to any claim or defense at issue had knowledge of the alleged construction under Plaintiff's Second Amended defects at the Premises. (Courteau Decl., Ex: Complaint. Plaintiff under no circumstance J and Ex. I at 16:9-18.) was aware of all of the defects at the Property much of which were hidden and latent defects, specifically with reference to the defective concrete/rebar inspection work , such defects were latent and not visible. It was only once Plaintiff took possession of the building at the Property that it became aware of the unknown and latent construction defects in the building, and physical damage to the building resulting from the construction activities undertaken by defendants. Plaintiff gained this knowledge 10 through invasive and non-invasive inspections and demolition that exposed the 11 defective workmanship, some of which was concealed by concrete. (Cassidy Decl., 4¥8- 12 10). 13 10. On June 25, 2009, Plaintiff acquired 10. Disputed and Objection. The referenced the UCB Loan and deed of trust through a declaration lacks foundation is hearsay, does 14 Loan Purchase Agreement with United not support the stated “fact” and is Commercial Bank ("UCB"), pursuant to incomplete. On June 25, 2009, Plaintiff 15 which Plaintiff paid $3.5 million. (Courteau purchased from UCB all of UCB’s right, title Decl., Ex. K and Ex. | at 24:8-12.) and interest in and to the Construction Loan 16 for $3.5 million under the terms of a written Loan Purchase Agreement. (Cassidy Ex. 1). 17 As part of Plaintiff's purchase, UCB assigned the Construction Deed of Trust to Plaintiff 18 pursuant to a Corporation Assignment of Deed of Trust recorded June 25, 2009, 19 together with the balance of the Loan Assets under the Construction Loan Agreement, 20 “including without limitation causes of action and damages for breach of contract, fraud, 21 concealment, construction defects or other torts.” (Cassidy Decl., {{§4-5; Cassidy Ex. 1, 22 at 3; Cassidy Ex. 4, 414.1, at 22; Cassidy Exs. 5-6). 23 24 25 26 27 3 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. |S\GRANITE\973 Market-Killamey'Summary Judgment - Defs\SSUF. construction. wpd 11. Through the Loan Purchase ll. Disputed and Objection. The Agreement with UCB, Plaintiff also acquired referenced declaration lacks foundation is seven guarantees of the UCB Loan executed hearsay, does not support the stated “fact,” is by members of 973 Market. (Courteau Decl., incomplete and that this “fact” is immaterial Ex. B at § 1.11 * RJN re Courteau Decl. Ex. to any claim or defense at issue under Mat 19 5-7.) Plaintiff's Second Amended Complaint. Plaintiff purchased from UCB all of UCB’s tight, title and interest in and to the Construction Loan under the terms of a written Loan Purchase Agreement. (Cassidy Ex. 1). As part of Plaintiff's purchase, UCB 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 10 contract, fraud, concealment, construction defects or other torts.” (Cassidy Decl., 94-5; 11 Cassidy Ex. 1, at 3; Cassidy Ex. 4, 914.1, at 22; Cassidy Exs. 5-6). 12 12, As of June 25, 2009, over $13.7 12. Disputed and Objection. The referenced 13 million remained outstanding on the UCB declaration lacks foundation, is hearsay, does Loan, (Courteau Decl., Ex. K at Ex. 2 not support the stated “fact” or the suggestion 14 attached thereto.) that the outstanding baiance has or will be paid and is incomplete. As of Plaintiff's 15 purchase of the Construction Loan the outstanding defaulted balance exceeded $14 16 million, however, shortly after Plaintiff's June 25, 2009 purchase of the Construction 17 Loan, borrower 973 Market filed for bankruptcy protection. (Cassidy Decl., 496- 18 7; Cassidy Ex. 7). After obtaining relief from the automatic bankruptcy stay, on January 26, 19 2010, Plaintiff caused the Property to be sold at a non-judicial foreclosure sale under the 20 Construction Deed of Trust. (Cassidy Decl., §6). Plaintiff was the high bidder at the 21 trustee’s sale and purchased the Property with a credit bid of $100,000, taking title to the 22 Property under a Trustee’s Deed Upon Sale recorded March 9, 2010. (Cassidy Decl., 6; 23 Cassidy Ex. 7). 24 25 26 27 4 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. SSGRANITE(973 Market-Killamey'Summary Judgment - Defs\SSUF construction wpd 13. In the Loan Purchase Agreement with 13. Disputed and Objection. The UCB, Plaintiff specifically agreed that the referenced declaration is without foundation purchase was on an “as is" basis. (Courteau and hearsay and does not support the stated Deci., Ex. K at §§ 3(i) and 6(H)(vii). conclusion. The isolated sections of the Loan Purchase Agreement referenced in this fact knowledge that, “Subject to [UCB’s] representations and warranties contained herein, [Plaintiff] is purchasing the Loan Assets ‘as is’ and ‘with all faults, defaults and events of default” and subject to the terms of this Agreement.” The provisions of the Loan Purchase Agreement must be read together. The Loan Purchase Agreement transferred all Loan Assets, including UCB’s tights under the Construction Deed of Trust and Construction Loan Agreement by which borrower 973 Market assigned to UCB “{ajll 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.” (Cassidy Ex. 3, §§ 1.3.14, 1.3.12, 1.3.13, at 4; Cassidy 15 Ex. 4, §14.1, at 22). 16 14, The Loan Purchase Agreement with 14. Disputed and Objection. The UCB does not set forth a clear manifestation referenced declaration is without foundation 17 of an intent by UCB to assign to Plaintiff 973 and hearsay and does not support the stated Market's alleged construction defect claim conclusion. The Loan Purchase Agreement 18 against CTS. (Courteau Decl., Ex. K at § transferred all Loan Assets, including UCB’s 3@).) rights under the Construction Deed of Trust 19 and Construction Loan Agreement by which borrower 973 Market assigned to UCB “(alll 20 construction, supply, engineering, and architectural contracts executed and to be 21 executed by Borrower for the construction of the Improvements,” and “[a]ll causes of 22 action, and all sums due or payable to Borrower for injury or damage to the 23 Mortgaged Property, . including without limitation causes of action and damages for 24 breach of contract, fraud, concealment, construction defects or other torts.” (Cassidy 25 Ex. 3, §§ 1.3.14, 1.3.12, 1.3.13, at 4; Cassidy Ex. 4, §14.1, at 22). 26 27 5 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. ]S:\GRANITE\973 Market-Killamey'Summary Judgment - Defs\SSUF. construction wpd 15. As of June 25, 2009, the Premises 15. Disputed and Objection. The was worth between $8.5 million to $9 referenced declaration lacks foundation, is million. (Courteau Decl., Ex. C and Ex. I at hearsay, and does not support the stated 124:24— 125:11.) “fact.” As of Plaintiffs purchase of the Construction Loan the outstanding defaulted balance exceeded $14 million, however, shortly after Plaintiff's June 25, 2009 purchase of the Construction Loan, borrower 973 Market filed for bankruptcy protection. (Cassidy Decl., 96-7; Cassidy Ex. 7). After obtaining relief from the automatic bankruptcy stay, on January 26, 2010, Plaintiff caused the Property to be sold at a non-judicial foreclosure sale under the Construction Deed of Trust. (Cassidy Decl., 96). Plaintiff was the high bidder at the trustee’s sale and purchased the Property with acredit bid of $100,000, taking title to the 10 Property under a Trustee’s Deed Upon Sale recorded March 9, 2010. (Cassidy Decl., 6; 11 Cassidy Ex. 7). 12 16. After executing the Loan Purchase 16. Disputed and Objection. The Agreement with UCB, Plaintiff foreclosed on referenced declaration lacks foundation, is 13 the Premises and purchased the Premises at a hearsay, and does not support the stated Trustee Sale. (Courteau Decl., Ex. I at “fact.” Shortly after Plaintiff's June 25, 2009 14 138:23 — 139:6, and Ex. L.) purchase of the Construction Loan, borrower 973 Market filed for bankruptcy protection. 15 (Cassidy Decl., 46-7; Cassidy Ex. 7). After obtaining relief from the automatic 16 bankruptcy stay, on January 26, 2010, Plaintiff caused the Property to be sold at a 17 non-judicial foreclosure sale under the Construction Deed of Trust. (Cassidy Decl., 18 §(6). Plaintiff was the high bidder at the trustee’s sale and purchased the Property with 19 a credit bid of $100,000, taking title to the Property under a Trustee’s Deed Upon Sale 20 recorded March 9, 2010. (Cassidy Decl., 6; Cassidy Ex. 7). 21 22 23 24 25 26 27 6 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. |S\GRANITE}973 Market-Killamey\Summary Judgment - DefS\SSUF,construction, wpd 1 17. Plaintiff's construction defect claim 17, Disputed and Objection. Plaintiff 2 against CTS is based on its status as "the asserts its claims herein as the foreclosing assignee and successor in interest" to UCB lender and current owner and as the through the Loan Purchase Agreement dated successor in interest and assignee of all June 25, 2009. (RJN and Courteau Dec!., claims held by 973 Market Associates, LLC Ex. A at 4 1, 11.) (“973 Market”), the original borrower and owner of the Project, “including without limitation causes of action and damages for breach of contract, fraud, concealment, construction defects or other torts,” as a result of Plaintiff's purchase of the Project as the foreclosing beneficiary under the construction deed of trust given by 973 Market. The Loan Purchase Agreement transferred all Loan Assets, including UCB’s rights under the Construction Deed of Trust and Construction Loan Agreement by which 10 borrower 973 Market assigned to UCB “[a]ll construction, supply, engineering, and 11 architectural contracts executed and to be executed by Borrower for the construction of 12 the Improvements,” and “[a]ll causes of action, and all sums due or payable to 13 Borrower for injury or damage to the Mortgaged Property, . including without 14 limitation causes of action and damages for breach of contract, fraud, concealment, 15 construction defects or other torts.” (Cassidy Ex. 3, §§ 1.3.14, 1.3.12, 1.3.13, at 4; Cassidy 16 Ex. 4, §14.1, at 22). 17 18 Dated: March 7 » 2012 STEYER LOWENTHAL BOODROOKAS 19 ALY, Z $4SMITH LLP 20 21 By: Jeffrey H. Lowenthal 22 Edward Egan Smith Attorneys for Plaintiff and Cross-Defendant 23 PERFORMING ARTS, LLC 24 25 26 27 7 28 PLAINTIFF PERFORMING ARTS, LLC'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CONSTRUCTION TESTING SERVICES, INC. S\GRANITE\973 Market-Killamey\Summary Judgment - Defs\SSUF. construction wpd