Complaint,Petition: PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Oct-25-2010 4:11 pm

Case Number: CGC-10-498405
Filing Date: Oct-25-2010 4:09
Juke Box: 001 Image: 03012589
CROSS COMPLAINT

PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al

001003012589

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DION N. COMINOS (SBN: 136522)
dcominos@gordonrees.com
MARK C. RUSSELL (SBN: 208865)

mrussell@gordonrees.com Dp
OLIVIA J. BRADBURY (SBN: 253323) F indbar B..
obradbury@gordonrees.com ° .
GORDON & REES LLP oct 25 ui

275 Battery Street, Suite 2000

San Francisco, CA 94111 CLERK OF Tt “UR '
Telephone: (415) 986-5900 or agg
Facsimile: (415) 986-8054 Deputy Clerk”

Attorneys for Defendant
CARDINAL CONSULTING, INC.

SUPERIOR COURT OF CALIFORNIA - COUNTY OF SAN FRANCISCO

PERFORMING ARTS, LLC, a Delaware

Tmited liability company, CASE NO. CGC-10-498405

Plaintiff CARDINAL CONSULTING, ING’S
anon, CROSS-COMPLAINT
VS.

KILLARNEY CONSTRUCTION CO,, INC.,
MID-MARKET DEVELOPMENT CO,, INC.,
CARDINAL CONSULTING, INC.,
CULLINANE CONSTRUCTION, AL
NORMAN MECHANICAL, INC., MICHAEL
MURRAY, CONSTRUCTION TESTING
SERVICES, and DOES 1 THROUGH 200,
inclusive,

Complaint Filed: April 7, 2010
Trial Date: Not set.

FILE BY FAX

Defendants.

CARDINAL CONSULTING, INC.,
Cross-Complainant,
VS.

UNITED COMMERCIAL BANK;
KILLARNEY CONSTRUCTION CO., INC.;
MID-MARKET DEVELOPMENT CO., INC.;
CULLINANE CONSTRUCTION; AL
NORMAN MECHANICAL, INC.; MICHAEL
MURRAY; and ROES 1 through 50, inclusive,

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Cross-Defendants.

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CARDINAL CONSULTING, INC.’S CROSS-COMPLAINTGordon & Rees LLP
275 Battery Street, Suite 2000

San Francisco, CA 94111 -

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Defendant and Cross-Complainant CARDINAL CONSULTING, INC. (“CARDINAL”)
brings this Cross-Complaint against Defendants UNITED COMMERCIAL BANK (“UCB”);
KILLARNEY CONSTRUCTION CO., INC. (“KILLARNEY”); MID-MARKET
DEVELOPMENT CO., INC. (“MMD”); CULLINANE CONSTRUCTION (“CULLINANE”);
AL NORMAN MECHANICAL, INC. (“AL NORMAN”); MICHAEL MURRAY
(“MURRAY”) and ROES | through 50, inclusive, and alleges as follows:

GENERAL ALLEGATIONS

1. CARDINAL isa duly authorized corporation, organized and existing under the
laws of the State of California, with its principal place of business located in San Ramon,
California.

2. UCB is a duly authorized corporation, organized and existing under the laws of
the State of California, with its principal place of business located in San Francisco, California.

3. Defendants/Cross-Defendants UCB, KILLARNEY, MMD, CULLINANE, AL
NORMAN, and MURRAY are businesses organized and existing under the laws of the State of
California with a principal place of operation in and doing business in the State of California, or
individuals residing in California (hereinafter, collectively with ROES 1 through 50, referred to
as “Cross-Defendants”).

4. The true names or capacities, whether individual, corporate, associate or
otherwise, of Cross-Defendants ROES 1 through 50, inclusive are unknown to CARDINAL,
who, therefore, sues said Cross-Defendants by such fictitious names. CARDINAL is informed
and believes and thereon alleges that each of the fictitiously named Cross-Defendants is legally
responsible in some manner for the injuries and damages alleged herein; and therefore,
CARDINAL requests that when the true names and capacities of said fictitiously named Cross-
Defendants are ascertained, it be permitted to insert the same herein.

FIRST CAUSE OF ACTION
(Breach of Contract as to UCB and ROES 1-10)

5. CARDINAL hereby incorporates by reference the allegations set forth in
paragraphs 1 through 4 as though fully set forth herein.

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CARDINAL CONSULTING, INC.’S CROSS-~COMPLAINTGordon & Rees LLP

275 Battery Street, Suite 2000

San Francisco, CA 94111

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6. In or about January 2002, CARDINAL and UCB entered into an agreement
(“Agreement”) to provide construction loan monitoring services.

7. The Agreement called for CARDINAL to provide services exclusively to UCB
thus prohibiting any and all assignments of the Agreement.

8. CARDINAL has fully performed all terms and conditions required of it under the
terms of the Agreement. /

9. UCB subsequently assigned the Agreement to plaintiff in the subject action in
breach of the Agreement.

10. | Asaresult of UCB’s breach of contract, CARDINAL has sustained damages in
an amount according to proof at trial.

WHEREFORE, CARDINAL prays for judgment as set forth below.

SECOND CAUSE OF ACTION
(Express Indemnity as to UCB and ROES 1-10)

11. CARDINAL hereby incorporates by reference the allegations set forth in
paragraphs | through 10 as though fully set forth herein.

12.  Inor about June and/or July 2008, CARDINAL advised UCB of concerns it had
with the construction complained of in plaintiff's complaint and concurrent loan draw requests
by certain construction entities. UCB had notice of construction funding problems and indicated
that it was going to investigate same. UCB subsequently sold the loan to plaintiff despite UCB’s
knowledge of potential construction problems. The Agreement contains an indemnity provision
requiring UCB to indemnify and hold CARDINAL harmless from all such negligent acts,
including its sale of the subject construction loan to plaintiff which it knew was problematic.

13.  Asaresult of UCB’s negligence, CARDINAL has sustained damages in an
amount according to proof at trial.

WHEREFORE, CARDINAL prays for judgment as set forth below.

3.

CARDINAL CONSULTING, INC.’§ CROSS-COMPLAINTGordon & Rees LLP
275 Battery Street, Suite 2000

San Francisco, CA 94111

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THIRD CAUSE OF ACTION
(Negligence as to UCB and ROES 1-10)

14. CARDINAL hereby incorporates by reference the allegations set forth in
paragraphs 1 through 13 as though fully set forth herein.

15.  Inor about June and/or July 2008, UCB knew of concems CARDINAL had with
the construction complained of in plaintiff's complaint and concurrent loan draw requests. UCB
had notice of construction funding problems and indicated that it was going to investigate same.
UCB subsequently sold the loan to plaintiff despite UCB’s knowledge of potential construction
problems.

16. By knowingly selling the loans despite reported construction problems, UCB has

breached its duty to CARDINAL.
17. Asaresult of UCB’s negligence, CARDINAL has sustained damages inan
amount according to proof at trial. ‘
FOURTH CAUSE OF ACTION

(Equitable Indemnity as to UCB, KILLARNEY, MMD, CULLINANE, AL NORMAN, MURRAY
and ROES 11-50)

18. | CARDINAL hereby incorporates by reference the allegations set forth in
paragraphs 1 through 17 as though fully set forth herein.

19. | CARDINAL is informed and believes and on that basis alleges that if
CARDINAL is found liable in any amount, it will be due solely to the passive faults and/or
secondary actions of CARDINAL, whereas, KILLARNEY, MMD, CULLINANE, AL
NORMAN, MURRAY, and ROES 11-50, and each of them, were actively negligent and
primarily responsible for damages in this Action, and for the improper and otherwise negligent
construction and other work, if any, of which Plaintiff or others complain. F

20. If it be found that CARDINAL is liable by reason of those things set forth above,
then CARDINAL is entitled to be indemnified and held harmless under the principles of
equitable indemnity by KILLARNEY, MMD, CULLINANE, AL NORMAN, MURRAY, and
ROES 11-50, and each of them, inclusive, either from all damages or from a percentage based

4.

CARDINAL CONSULTING, INC.’5 CROSS-COMPLAINTGordon & Rees LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111

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upon principles of comparative fault, including but not limited to costs and expenses in
defending the within action, and attorneys fees and other expenses incurred in connection
therewith.
WHEREFORE, CARDINAL prays for judgment as set forth below.
FIFTH CAUSE OF ACTION

(Implied Indemnity as to UCB, KILLARNEY, MMD, C ULLINANE, AL NORMAN, MURRAY, and
ROES 11-50)

21. CARDINAL re-alleges paragraphs 1 through 20 above and incorporates them by
reference as if set forth in full.

22. CARDINAL is informed and believes and on that basis alleges that if
CARDINAL is found liable in any amount, it will be due solely to the passive faults and/or
secondary actions of CARDINAL, whereas, KILLARNEY, MMD, CULLINANE, AL
NORMAN, MURRAY, and ROES 11-50, and each of them, were actively negligent and ,
primarily responsible for damages in this action, and from the improper and otherwise negligent
construction and other work, if any, of which Plaintiff or others complain.

23. If it be found that CARDINAL is liable by reason of those things set forth above,
then CARDINAL is entitled to be indemnified and held harmless under the principles of implied
indemnity by KILLARNEY, MMD, CULLINANE, AL. NORMAN, MURRAY, and ROES 11-
50 and each of them, inclusive, either from all damages or from a percentage based upon
principles of comparative fault, including but not limited to costs and expenses in defending the
within action, and attorneys fees and other expenses incurred in connection therewith.

WHEREFORE, CARDINAL prays for judgment as set forth below.

: PRAYER
WHEREFORE, CARDINAL prays the Court for the following relief:

1. For ali attorneys’ fees and cost that Court determines is appropriate;

2. For damages suffered by CARDINAL according to proof at trial;

3. For costs of suit herein incurred; and
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For any other such relief as the court may deem proper.

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(CARDINAL CONSULTING, INC.’S CROSS-~COMPLAINTGordon & Rees LLP
275 Battery Street, Suite 2000

San Francisca, CA 94111

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Performing Arts, LLC, v. Killarney Construction Co., Inc., et al.
San Francisco County Superior Court Case No. CGC-10-498405

PROOF OF SERVICE

Iam a resident of the State of California, over the age of eighteen years, and not a party
to the within action. My business address is: Gordon & Rees LLP 275 Battery Street, Suite
2000, San Francisco, CA 94111. On the date below, I served the within documents:

CARDINAL CONSULTING, INC.’S CROSS-COMPLAINT

by transmitting VIA FACSIMILE the document(s) listed above to the fax number(s)
set forth below on this date before 5:00 p.m.

by PERSONALLY DELIVERING the document(s) listed above to the person(s) at
the address(es) set forth below.

by placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, in UNITED STATES MAIL in the State of California at San Francisco,
addressed as set forth below.

by placing a true copy thereof enclosed in a sealed envelope, at a station designated
for collection and processing of envelopes and packages for overnight delivery by
FEDERAL EXPRESS as part of the ordinary business practices of Gordon & Rees
LLP described below, addressed as follows:

PLEASE SEE ATTACHED SERVICE LIST.

I am readily familiar with the firm’s practice of collection and processing correspondence
for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
day with postage thereon fully prepaid in the ordinary course of business. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date or postage
meter date is-more than one day after the date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.

Executed on October 25, 2010 at San Francisco, California.

Anne M. Papina

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CARDINAL CONSULTING, INC.’$ CROSS-COMPLAINTGordon & Rees LLP
275 Battery Street, Suite 2000

San Francisco, CA 94111

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SERVICE LIST

Performing Arts, LLC y, Killarney Construction Co., Inc., et al.
San Francisco County Superior Court Case No. CGC-10-498405

Gary A. Angel, Esq.
Frear S. Schmid, Esq.

‘Law Offices of Gary A. Angel
177 Post Street, 8° Fl.

San Francisco, CA 94108

FAX: 415-788-5958

Jeffrey H. Lowenthal, Esq. 415-421-3400 Co-Counsel for Plaintiff
Steyer Lowenthal Boodrookas Alvarez & FAX: 415-421-2234
Smith LLP jlowenthal@steyerlaw.com
One California Street, 3" Fl.
San Francisco, CA 94111
John G. Dooling, Esq. 415-543-4800 Attomeys for ~
Ropers, Majeski, Kohn & Bentley FAX: 415-972-6301 CONSTRUCTION TESTING
201 Spear Street, Suite 1000 jdooling@ropers.com SERVICES, INC.
San Francisco, CA 94105
Suzanne M. Martin, Esq. 415-362-2580 Attomeys for CULLINANE
Kelton M. Burgess, Esq. FAX: 415-434-0882 CONSTRUCTION and AL
Lewis Brisbois Bisgaard & Smith LLP martin@lbbslaw.com NORMAN MECHANICAL,
One Sansome Street, Suite 1400 bur; oslaw.com INC.
San Francisco, CA 94104
Coque K. Dion, Esq. 415-291-8425 Attorneys for MID-MARKET
Manasian & Rougeau LLP FAX: 415-291-8426 DEVELOPMENT CO., INC.
400 Montgomery Street, Suite 1000 dion@mrlawsf.com and MICHAEL MURRAY
San Francisco, CA 94104
oof
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CARDINAL CONSULTING, INC.’S CROSS-COMPLAINT