Proof of Service: PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al

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Preview
                                UCI

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Dec-21-2011 1:52 pm

Case Number: CGC-10-498405
Filing Date: Dec-21-2011 1:52
Juke Box: 001 Image: 03428586
GENERIC CIVIL FILING (NO FEE)

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

001003428586

Instructions: ¢ ~
Please place this sheet on top of the document to be scanned.A Professional Corporation

Ropers Majeski Kohn & Bentley

San Francisco

JOHN G. DOOLING (SBN 154358)
DEVIN C. COURTEAU (SBN 197505)
ROPERS, MAJESKI, KOHN & BENTLEY
201 Spear Street, Suite 1000

San Francisco, CA 94105-1667

Telephone: (415) 543-4800
Facsimile: (415) 972-6301
Email: jdooling@rmkb.com

dcourteau@rmkb.com

Attorneys for Defendant and Cross-Complainant
CONSTRUCTION TESTING SERVICES, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

PERFORMING ARTS, LLC,
Plaintiff,

KILLARNEY CONSTRUCTION CO.,
INC., et al.,

Defendants.

AND RELATED CROSS-ACTIONS

RC16264505.1/DCC -1-

CASE NO. CGC-10-498405

SUPPLEMENTAL REQUEST FOR
JUDICIAL NOTICE AND

v. SUPPLEMENTAL DECLARATION OF
DEVIN C. COURTEAU IN SUPPORT OF
MOTION TO ASSIGN ACTION TO
COMPLEX LITIGATION PROGRAM

Date:
Dept.:

Trial: March 26, 2012

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SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE AND SUPPLEMENTAL DECLARATION OF DEVIN C.
COURTEAU IN SUPPORT OF MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAMA Professional Corporation

Ropers Majeski Kohn & Bentley

San Francisco

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Construction Testing Services, Inc. (“CTS”) respectfully requests Judicial Notice be
taken, under Evidence Code §§ 452 and 453, of the following:

1. The Complaint for Damages for Breach of Written Guaranty filed in San Francisco
Superior Court Case No. CGC-09-494-591 by Performing Arts, LLC (“Plaintiff”) on November
19, 2009, a copy of which is attached hereto as Exhibit B; and

2. The Order Granting Cross-Complainant Construction Testing Services, Inc.’s
Motion to Amend Its Cross-Complaint to Show True Names of Roe Cross-Defendants, dated
November 19, 2011, a copy of which is attached hereto as Exhibit D.

ROPERS, MAJESKI, KOHN & BENTLEY

By: = Co =>
JO)

HAG, DO
DEVIN C. COURTEAU
Attomeys for Defendant and Cross-Complainant
CONSTRUCTION TESTING SERVICES, INC.

Dated: December 21, 2011

RC16264505.1/DCC -2-

SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE AND SUPPLEMENTAL DECLARATION OF DEVIN C.
COURTEAU IN SUPPORT OF MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAMRopers Majeski Kohn & Bentley
A Professional Corporation

San Francisco

SUPPLEMENTAL DECLARATION OF DEVIN C, COURTEAU IN SUPPORT OF

MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAM
I, Devin C. Courteau, declare as follows:

1. lam an attorney licensed to practice by the State of California, and am an attorney
with the law firm Ropers, Majeski, Kohn & Bentley, attorneys of record for defendant and cross-
complainant CTS in the above-referenced matter. I have personal knowledge of the matters
stated in this declaration, except as to those matters stated on information and belief, and as to
those matters I believe them to be true, and could so testify as a witness.

2. Attached hereto as Exhibit B is a true and correct copy, without exhibits, of the
Complaint for Damages for Breach of Written Guaranty filed in San Francisco Superior Court
Case No. CGC-09-494-591 by Plaintiff on November 19, 2009.

3. On August 22, 2011, I received a CD containing the documents produced by
Plaintiff in this action in response to requests for production propounded by defendant Cardinal
Consulting, Inc. (hereinafter, “Plaintiff's First Production”). Plaintiff's First Production is Bates
Stamped PA 00001 — PA 06243, CTRL00000001 — CTRL00002816, and includes an additional
1,200 pages of documents that are not Bates Stamped.

4. On November 22, 2011, I received a CD containing a set of documents produced
by Plaintiff in this action in response to the second and third requests for production propounded
by defendant Cardinal Consulting, Inc. (hereinafter, “Plaintiff's Second Production”). Plaintiff's
Second Production is Bates Stamped PA08000 — PA11197. In order to obtain these documents [
was required to execute a stipulated Protective Order, because Plaintiff asserted that some or all
of the documents were subject to a Protective Order issued in In re: 973 Market Associates, LLC,
United States Bankruptcy Court for the Northern District of California, San Francisco Division,
Case No. 09-32014 DM 11.

5. L have reviewed the Loan Purchase Agreement between United Commercial Bank
as Seller and Performing Arts, LLC as Purchaser, dated as of June 25, 2009, that was included
within Plaintiff's First Production as PA 06000 — PA 06023, and am informed and believe based

upon that review that Section 3 of that document states that Plaintiff paid $3.5 million for the
RC16264505./DCC -3-

SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE AND SUPPLEMENTAL DECLARATION OF DEVIN C.
COURTEAU IN SUPPORT OF MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAMRopers Majeski Kohn & Bentley
A Professional Corporation

San Francisco

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United Commercial Bank issued to the former owner of the Property, 973 Market Associates (the
“UCB Loan”).

6. Attached hereto as Exhibit C is a true and correct copy of a Trustee’s Deed Upon
Sale, dated January 26, 2010, pertaining to the real property located at 973 Market Street, San
Francisco, California 94103 (the “Property”), that was included within Plaintiff's First Production
as CTRL00000264 — CTRL00000270 (on CD), although the stamps on the document state
“MAN000010” through “MAN000016.” I am informed and believe that Exhibit C is the deed
recording Plaintiffs ownership of the Property, and that its states Plaintiff paid $100,000 for the
Property.

7. Attached hereto as Exhibit D is a true and correct copy of the Order Granting
Cross-Complainant Construction Testing Services, Inc.’s Motion to Amend Its Cross-Complaint
to Show True Names of Roe Cross-Defendants, dated November 19, 2011. That Order pertains
to ten (10) Roe Cross-Defendants that will shortly be added as parties to this action.

8. CTS and certain of the other defendants are currently in the process of noticing
and scheduling the following depositions: (1) Plaintiff; (2) Plaintiff’s sole member Joe Cassidy;
(3) the general contractor that made a bid to complete the construction project at the Property, and
that discovered the alleged defects at issue — Centrix Builders (owned by Cassidy); (4) the Centrix
Builders employee who was in charge of assembling a bid to finish the construction project at the
Property (and who allegedly spearheaded the acquisition of the Property for Plaintiff) — Simon
Casey; (5) the structural engineer used by Centrix in assembling the bid to complete the
construction project at the Property; (6) former employees of the bank (the former United
Commercial Bank) that issued the construction loan and then sold it to Plaintiff; (7) employees of
the successor-in-interest to United Commercial Bank (East West Bank); and (8) possibly the
former owners of the Property, many of whom live in Ireland.
it
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RCH6264505./DCC -4-

SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE AND SUPPLEMENTAL DECLARATION OF DEVIN C.
COURTEAU IN SUPPORT OF MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAMRopers Majeski Kohn & Bentley
A Professional Corporation

San Francisco.

oOo Om IN KD HW

9. Attached hereto as Exhibit E is a true and correct copy of the original Civil Case
Cover Sheet in this action, which CTS inadvertently failed to include with its moving papers.
Because CTS was not named in the original complaint, but instead in the first amended
complaint, CTS was never served with this document.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed this 21" day of December, 2011 at San Francisco,

California.

TE ans

Devin C. Courteau

RC1/6264505.1/DCC -5-

SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE AND SUPPLEMENTAL DECLARATION OF DEVIN C.
COURTEAU IN SUPPORT OF MOTION TO ASSIGN ACTION TO COMPLEX LITIGATION PROGRAMuo ok WwW oN oH

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i

Jeffrey H. Lowenthal (State Bar No. 111763)
Edward Egan Smith (State Bar No. 169792)
STBYER LOWENTHARIPARE RO Cans

ALVAREZ & SMITH SEE
One California Street, Third Floor oe oy ge
San Francisco, California 94 Suforarcour Sorat:
Telephone: (415) 421-3400 Wk 2 3 2010 <9 ou ay Cerne cone oom
Facsimile: (415) 421-2234

Nov 1 9 '¥Aig: ©
DEPARGMENT 212 2 ARAQNPRER-U, Clark
SUMMONS IssUED

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

Attorneys for Plaintiff
Performing Arts LLC

IN AND FOR THE CIFY AND COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

PERFORMING ARTS LLC, a Delaware
limited liability company,
Plaintiff,
VS.
MICHAEL MURRAY, CHRISTOPHER.
FLOOD, PARAIC O*DONOGHUE, TONY
MANNING, ENDA G. QUIGLEY, SEAN

MURPHY, DANIEL WALSH and DOES 1
through 100, inclusive,

Defendants.

ee

COMPLAINT FOR DAMAGES FOR BREACH OF WRITTEN GUARANTY
SAGRANITE Pecfomning Arts\Pleadings\Complaint wpd

Caen’ &C~ 09 494597
cope gorge paab Es Ackwow eo nN A Ue WY N HF

NON BP oP FP BR B BR HR RH FB
Po be YU A mh ee YW DP KR OD

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FIRST CAUSE OF ACTION
(Against All Defendants for Damages for Breach of Written Guaranty}

1 At all times mentioned, plaintiff Performing Arts LLC (“Plaintiff”), was and is a
limited liability company organized and existing under and in accord with the laws of Delaware
and haying its principal placed of business in San Francisco, California.

2. Plaintiff is informed and believes that at all times herein relevant, defendants
Michael Murray, Christopher Flood, Paraic O’Donoghue, Tony Manning, Enda G. Quigley,
Sean Murphy, Daniel Walsh were individuals residing and/or doing business in San Francisco,
California, who have consented to the jurisdiction of this Court.

3. Plaintiff is ignorant of the true names and capacities of the defendants sued

herein as Does 1 through 100, inclusive, and therefore now sues under fictitious names.
Plaintiff will allege their true names and capacities, after seeking leave of Court if necessary
when ascertained.

4, Plaintiff is informed and believes that each and all of the defendants in this
action, whether sued now under its actual name or under a fictitious name, at all times
mentioned was and is the principal, agent, employer, employce, independent contractor,
representative, director, officer, shareholder, partner, general partners, limited partner, member,
managing member, manager, controlling petson, controlling entity, pareni, subsidiary, sister
entity, co-venturer, co-conspirator, and/or alier ego of each other defendant, acting at all times
mentioned within the course and scope of said relationship and the actual and/or ostensible
authority created thereby, and acting at all times mentioned with the knowing prior authorization

and knowing after-the-fact ratification of each other defendant, such that all defendants are

responsible and liability for all debts and obligations sued on, and subject to all relief to be
granted, herein.

5. Plaintiff is informed and believes that on or about August 3, 2007, defendants
entered into separate written contracts entitled “Continuing Guaranty” (the “Guaranty”),
whereby defendants guaranteed all obligations of 973 Market Associates, LLC under that certain

-1-

COMPLAINT FOR DAMAGES FOR BREACH OF WRITTEN GUARANTY
SAGRANTIE Performing Arts\Pieadings\Complaint. wpdam oy
VU wo

Promissory Note, dated August 3, 2007 made by 973 Market Associates, LLC in favor of United
Commercial Bank (the “Promissory Note”), secured by that certain Deed of Trust dated August
3, 2007 and recorded on August 31, 2007, Document No. 2007-1447703-00 in the Official
Records of the San Francisco Recorder’s Office (“Deed of Trust”) (collectively the “Loan”).
True and correct copies of each Guaranty executed by defendants are attached hereto and
incorporated herein by this reference as follows: Michael Murray - Exhibit 1; Christopher Flood
~ Exhibit 2; Paraic O’Donoghue - Exhibit 3; Tony Manning - Exhibit 4; Enda G. Quigley -
Exhibit 5; Sean Murphy - Exhibit 6; and Daniel F. Walsh - Exhibit 7, True and correct copies of
the Promissory Note is attached hereto as Exhibit 8 and incorporated herein by reference.

6. Pursuant to each Guaranty, defendants absolutely and unconditionally guaranteed
all obligations of 973 Market Associates, LLC under the Promissory Note.

7. On or about June 25, 2009, Plaintiff, in connection with acquiring ownership of
all right, title and interest of United Commercial Bank in the Loan, succeeded to and became the
assignee of all right, title and interest formerly held by the United Commercial Bank, with each
Guaranty, including the right to receive all payments by and fulfillment of all obligations of 973
Market Associates, LLC under the Promissory Note.

8. Beginning on or about April 5, 2009 and continuing at all times thereafter,
without legal excuse 973 Market Associates, LLC breached and continues to breach its
obligations under the Promissory Note by failing to pay, and by continuing at all times thereafter
to fail to pay, the amount due thereunder. These continuing failures to pay by 973 Market
Associates, LLC were and are breaches of the Promissory Note.

9. Notwithstanding the foregoing; defendants failed, and at all times have continued
to fail, to cure any of 973 Market Associates, LLC’s breaches of the Promissory Note. Such
failures constitute breach of each Guaranty and repudiations by defendants of their obligations

under each Guaranty.

-2-

COMPLAINT FOR DAMAGES FOR BREACH OF WRITTEN GUARANTY
SAGRANITEWerforming Arts\Pfeadings\Complaint wpd10. Asa legal and proximate result of said breaches of the Guaranty, Plaintiff has
been darnaged in the sum of not less than $14,011,487.47 plus interest at the Promissory Note
rate from April 14, 2009.

ll. The Guaranty provides that the prevailing party in any litigation shall be entitled
to recover its reasonable attorney’s fees.

12. Plaintiff has done everything required on its part to be done under each Guaranty,
and anything it has arguably failed to do has been legally waived and/or excused.

WHEREFORE, Plaintiff prays for judgment against defendants, and each of them, as
follows:

1. Damages legally and/or proximately caused by defendants’ breach of each
Guaranty in the arnount of not less than $14,011,487.47 plus interest at the Promissory Note rate
from April 14, 2009;

2. Costs of suit herein, including its reasonable atiomey’s fees as they are
recoverable under the terms of the Promissory Note, the Guaranty, and/or any other applicable
law; and

3. Such other and further relief as the Court deems just and proper.

Dated: November a 2009

Performing Arts LLC

-3-

COMPLAINT FOR DAMAGES FOR BREACH OF WRITTEN GUARANTY
SAGRANITE\asforming Arts\Pleadiups\ComplaintwpdEA.»- WHEN RECORDED MAIL TO - CERTIFIED 4 TRUE COPY.OF THE ORIGINAL

Document Recorded

aL TAX STATEMENTS TO: Regents Seria} Ee
County Recorder

Performing Arts LLC, a Delaware filed aitty coenpany .
160-8. Linden Avenue, Suite 100
‘South San Francisco, CA 94080 Be RESOLUTION NETWORK

‘Trustee Sale No. 09-00184-4C Loan No. 4009400 973 Market Associates. Title Order No. 09-00184-4

TRUSTEES DEED UPON SALE

APN 3704-089
Property Address: 973 Market Street, San Francisca, CA 94103

The undersigned grantor declares:
1) The Grantee herein was the foreclosing beneficiary.
2) The amount of the unpaid debt together with costs was...
3) The amount paid by the grantee at the trustee sale was..
4) The documentary transfer tax is
4) Said property is in the City of San Francisco,

Fidelity National Tite Company (herein called Trustee), as the duly appointed Trustee under the
Deed of Trust hereinafter described, daes hereby grant and convey, but without covenant or
warranty, express or implied, fa Performing Arts LLC; a Delaware limited liability company (herein
called Grantee), all of its right, title and interest in and fo that certain property situated in the County
of San Francisco, State of California, described as follows:

SEE "EXHIBIT A ATTACHED. HERETO AND MADE A PART HEREOF, TOGETHER WITH ALL
THAT CERTAIN PERSONAL PROPERTY, MORE PARTICULARLY DESCRIBED IN “EXHIBIT B”
ATTACHED HERETO AND MADE A PART HEREOF.

This conveyance is made pursuant to the powers conferred upon Trustee by that certain Deed of
Trust dated August 3, 2007 and executed by 973 Market Associates; LLC, a California limited:
liability company, as Trustor, and recorded on August 31, 2007, as Instrument No. 2007-1447703-00
in Book J467, Page 0178 of official records of San Francisco County, California, and after fulfilment
of the conditions specified in said Deed of Trust authorizing this conveyance.

Default occurred as set forth in a Notice of Default and Election to Sell which was recorded in the
Office of the Recorder of said County, and such default sill existed at the time of sale.

All requirements of law regarding the mailing of copies of notices or the publication of a copy of the
Notice of Default or the personal delivery of the copy of the Notice of Default and the posting and
publication of copies of the Notice of a Sale have been complied with.

Trustee, in compliance with said Notice of Trustee's Sale and in exercise of its powers under said
' MAN000010State of California }ss.
County of wl Francisco }ss
On Vote 0 before me,,Natalie Gold, Notary Public, personally appeared

_ Tamala Dailey, who pfoved to me on the basis of satisiactory evidence fo be the”
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
fo me that he/she/they executed the same in his/her/their authorized capacity (ies), and
that by his/her/their signature(s) on the instrument the person(s), or the. entity upon

_ behalf of which the person(s) acted, executed the instrument.

certify under PENALTY OF PERJURY under the laws of the State of Califomia that the
foregoing paragraph is true and correct.

WITNESS my hand and official seal. foie cot}
#1828450

Natalie Gold # 1828450 , eae coy ge
My Commission Expires December 27, 2012

‘My Comm. Explne Dos. 27, 20%

(Seal)

MAN000012Exits"
Personal Properly Description

TS. No. 08-00184-4C

_ Loan No: 4850000400 973 Markel Associates

Capitazzed terms nol defined herein shall have the same meaning as those in the Deed of Trust

Allright, Sle and interest (including any claim or demand or demand in faw or equity) which Borrower now has or may
hereafter aoquire in ot to such Morkgaged Property, all easernents, rights, privileges, tenements, hereditaments and
appurienances thereunio belonging or in anyway appertaining aif of the estate right, fille, interest, daim, demand,
reversion or remainder whalsoever of Borrower therein or therelp, either at law or in equity, in possession or
expeciancy, now or hereafier acquired, all crops growing of to be grown on such Morigaged Property; all development
Tights or credits and ar rights; all water and waler rights (Whether or not appurtenant fo such Morigaged Property) and
shares of slock pertaining fo such water or water rights, ownership of which affects such Morigaged Property, all
minerals, oll, gas, and othes hydrocarbon substances and rights thereto in, on, under, of upon such Morigaged
Properly and all royalties and profits from any such rights or shares of slock all 2s-extracted collateral and timber lo be
cul, all goods that are or are to become fitures all ight, fle and Inferest of Borrower in and to any streets, ways,
alleys, stips or gores of land adjoining the and or any part thereof, which Borrower riow owns of al any fime hereafler
‘aoqites and aif adjacent lands within enclosures or oocupled by buildings partly situated on such Morigaged Property,

Al intangible property and rights relafing to the aforesaid Mortgaged Property oF the operation thereof or used in
connecon therewith including. withou' imitation, permis, Scenes, plans, specifications, construction contracts,
subcontracts, bids, deposits for ufllty selvices instaliafons, refunds due Borrower,

‘Allof the right, 88e and interes! of Trustor in and to the fand fying in the bed of any steel, road, highway or avenue in
frontof or adjoining he Land, .

Any and af awards heretofore mace of hereafter to be made by any Governmental Authorily o the present and a
subsequenl owners of the Morigaged Property which may be made with respect Io the Morigaged Property as a result
of the exercise of the right of eminent domain, the alteration of the grade of any sireet or any other injury fo or
deciease of value of the Morigaged Property, which said award or awards are hereby assigned to Lender and Lender,
al its option, is hereby authorized, direcled and empowered fb collect and receive the proceeds of any such award or
awacts from the authoriiies making the same and to give proper recelpls and acquitlances therefor, end to apply the
same as hereinafter provided; and Thistor hereby covenants and agrees to and with Lender, upon request by Lender,
fo make, execute and deliver, al Borrower's expense, any and all assignments and other instruments sufficient for the
purpose of assigning the aforesaid award or awards io Lender free, clear and discharged of any and all encumbrances
of any kind or nature whatsoever,

Ni cefficates of deposit of Borrower inthe possession of Lender and all bank accounts of Bortower with Lander, and
the proceeds therefrom and all deposiis of Borrower with any govemmental enlity and/or public ubiily company which
relates fo the ownership of the Mortgaged Property,

All leases of the Morigaged Property or any part thereof now or hereafter entered info and all ight, tife and interest of
Borrower thereunder, including, without imitation, cash or securities deposited hereunder lo secure performance by

- the lessees of their obligations thereunder (whether such cash or securities are fo be held unfll the expiration of the

ferms of such leases or applied to one or more of the instalments of rent coming due immediately prior to the:
expiration of such terms), all ighis fp all insurance proceeds and unearned insurance: premiums arising from. cr rekaing
to the Mortgaged Property, al other fights and easements of Borrower now or hereafler existing pertaining to the use
and enjoyment of the Morigaged Property and allright, fitle and interest of Borrower in and fo all declarations of
covenants, condifons and resitictions as may affect or olhenvise relate to Morigaged Property,

Any and all proceeds of any insurance policies covering the Mortgaged Property, whether or not such insurance.
polices were required by Lender as a condition of making the loan secured by the Deed of Trust or ace required to be

MAN000014: Al proceeds of any of the foregoing: -~-

End of Exhibit "B"

MAN000016Ropers Majeski Kohn & Bentley
A Professional Corporation

San Francisco

JOHN G. DOOLING (SBN 154358)
DEVIN C. COURTEAU (SBN 197505)
ROPERS, MAJESKI, KOHN & BENTLEY
201 Spear Street, Suite 1000

KILLARNEY CONSTRUCTION CO.,
INC,, et al.,

Defendant.

AND RELATED CROSS-ACTIONS.

O

ENDORSED
LED

San Francisco County Superior Court

DEC 19 2011

CLERK OF THE COURT

BY: GINA GONZALES
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

CASE NO. CGC-10-498405

ORDER GRANTING CROSS-
COMPLAINANT CONSTRUCTION
TESTING SERVICES, INC’S MOTION
TO AMEND ITS CROSS-COMPLAINT
TO SHOW TRUE NAMES OF ROE
CROSS-DEFENDANTS

San Francisco, CA 94105-1667
Telephone: (415) 543-4800
Facsimile: (415) 972-6301
Email: jdooling@rmkb.com
dcourteau@rmkb.com
Attomeys for Defendant and Cross-Complainant
CONSTRUCTION TESTING SERVICES, INC.
PERFORMING ARTS, LLC,
Plaintiff,
v.

Date: December 19, 2011
Time: 9:30 a.m..

Dept.: 302

Trial: March 26, 2012

wa
On December 19, 2011,,ahearing was held on defendant and cross-complainant
Construction Testing Services, Inc.’s Motion to Amend Construction Testing Services, Inc.’s

Cross-Complaint to Show ae Names of Roe Cross-Defendanis, in Department 302 of the San

Mm partes siub-miltid onthe errhedice hg «
Francisco Superior Court, The ‘ourt, having considered the papers submitted in support of and

in opposition to the motion, asd-any-arguments-ef counsel,

IT IS HEREBY ORDERED THAT:

Cross Complainant Construction Testing Services, Inc.’s Motion To Amend Cross-

Complaint is Granted. There is no evidence that prejudice would result from granting leave to

amend or that the delay between Defendant/Cross-Complainant Construction Testing Services,

RC1/6222362.2/DCC

-1-

ORDER GRANTING CROSS-COMPLAINANT CONSTRUCTION TESTING SER VICES, INC.’S MOTION TO AMEND ITS CROSS-
COMPLAINT TO SHOW TRUE NAMES OF ROE CROSS-DEFENDANTSRopers Majeski Kohn & Bentley
A Professional Corporation

$an Francisco

10

1

Ine. ascertaining Roe cross-defendants’ true identities and filing Motion to Amend was
unreasonable.

IT IS SO ORDERED.

Dated: DEC 1.9 201
MARLA J. MILLER

SUPERIOR COURT JUDGE

RCL/6222362.2/DCC © -2-

ORDER GRANTING CROSS-COMPLAINANT CONSTRUCTION TESTING SERVICES, INC."S MOTION TO AMEND ITS CROSS-
COMPLAINT TO SHOW TRUE NAMES OF ROE CROSS-DEFENDANTS* of, mf

VU VS
|_ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Siu. . ar number, and address): FOR COURT USE ONLY
GARY A. ANGEL, CSB No. 70006/FREAR STEPHEN SCHMID, CSB No. 96089
LAW OFFICES OF GARY A. ANGEL
177 POST STREET, EIGHTH FLOOR
SAN FRANCISCO, CA 94108
TELEPHONE NO. 415-788-5935 Fano: 415-788-5958
ATTORNEY FOR (Name) Plaintiff PERFORMING ARTS, LLC ¢ ‘
SUPERIOR GOURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO jan Francisco County Sunerior Court
treet anoress:400 McALLISTER STREET APR = 7 2010
MAILING ADDRESS 7 20

carvanvzie cone: SAN FRANCISCO, CA 94102 c

BRANCH NAME: ee LERK OF & gover
CASE NAME: Oi

PERFORMING ARTS, LLC, a Delaware limited liability company, v. KILLARNEY CONSTRUCTION CO,, INC., et al.

CIVIL CASE COVER SHEET Complex Case Designation CABE NUMBER:
{X] uniimitea [7] Limited oO pate 10 “hd 8405
(Amount (Amount Counter [2] soinder —
demanded demanded is Filed with first appearance by defendant west:
exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT:

Items 1-6 below must be completed (see instructions on page 2).
7, Check one box below for the case type that best describes this case:

Auto Tort Contract Provisionally Complex Civil Litigation
‘Auto (22) Sreach of contracttwarranty (06) (Cab. Rules of Court, rules 3.400-3.403)
Uninsured motorist (48) Rule 3.740 Collections (09) ‘Antitrust/Trade regulation (03)

Other PI/PD/WD (Personal Injury/Property Other Collections (09) Construction defect (10)

Damage|Wrongful Death) Tort Insurance coverage (18) [7] Mass tort (40)

Asbestos (04) [J otter contract (37) ‘Securities litigation (28)

Product liability (24) Real Property EnvironmentalToxic tort (30)

Medicai malpractice (45) Co Emir gomainniwerse [__] Insurance coverage claims arising from the
£_] omer puppwn (23) condemnation (<4) above listed provisionally complex case
Non-PVPDAVD {Other} Tort ‘Wrongful eviction (33) types (41)

Business tortuntair business practice (07) Other real property (28) Enforcement of Judgment

Civil rights (08) : Unlawful Detainer m heel of judgment (20)

betematon (13) Commercial (31) iscellaneous Civil Complaint
Ct Fraud (15) |__| Residential (32) L_] RICO (27)

Intellectual property (19) Drugs (38) TJ other complaint (not seciied above) (42)

Professional negigence (25) Judicial Review Miscellaneous Civil Petition
[<1] other non-PUPDAND tort (36) Asset forfeiture (05) [__] Parine:ship and corporate governance (21)
Employment Petition re: arbitration award (11) LJ Other petition (not specified above) (43)

‘Wrongful termination (36) [2] writ of mandate (02)

LL [] other employment (15) [EJ] other jusiciat review (39)
2. This case is LX] isnot complex under rule 3.400 of the Califomia Rules of Court. !f the case is complex, mark the
factors requiring exceptional judicial management: __

a. L_} Large number of separately represented parties. d. Large number of witnesses

pb. __] Extensive motion practice raising difficult or novel e. Coordination with related actions pending in one or more courts

issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court

©. CI Substantial amount of documentary evidence + (_) Substantial postjudgment judicial supervision

3. Remedies sought (check all that apply): a. LX] monetary b. [4 nonmonetary; declaratory or injunctive relief c. punitive
4. Number of causes of action (specify): One, Negligence

5. This case is CX] isnot aclass action suit.

6. If there are any known related cases, file and serve a notice of related case. (You,

y use form CM-015.) f

As

(SIGNATURE, RTY OR ATTORWEY FOR PARTY)

Date: April 7, 2010

FREAR STEPHEN SCHMID y
(TYPE OR PRINT NAME)

NOTICE
« Plaintiff must file this cover sheet with the first paper filed in the action of praceeding {except small claims cases or cases filed
under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220,) Failure to file may result
in sanctions.
+ File this cover sheet in addition to any cover sheet required by local court rule.
+ ffthis case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all
other parties to the action or proceeding.

+ Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes ony on

— ao - = rs

Toya Raced tensa Use Ta Raas Coat iss PH, HT SAH BAG 2 10.

fat Seu ot Calera cIvIL CASE COVER SHEET Cal. Siandards of Judicial Aaiminisration, st, 3.48
re

wow AEG B OH odOMy 2202Ropers Majeski Kohn & Bentiey
A Professional Corporation

San Francisco

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CASE NAME : PERFORMING ARTS v. KILLARNEY, et al.
ACTION NO. : CGC-10-498405

PROOF OF SERVICE
METHOD OF SERVICE
OO First Class Mail 0 Facsimile O Messenger Service
i Overnight Delivery O1 E-Mail/Flectronic Delivery

1, At the time of service I was over 18 years of age and not a party to this action.

2. My business address is 201 Spear Street, Suite 1000, San Francisco, CA 94105-1667,
County of San Francisco.

3. On December 21, 2011, I served the following document(s):

SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE AND SUPPLEMENTAL
DECLARATION OF DEVIN C. COURTEAU IN SUPPORT OF MOTION TO ASSIGN
ACTION TO COMPLEX LITIGATION PROGRAM

4. I served the document(s) on the persons at the address below (along with their fax numbers
and/or email addresses if service was by fax or email):

Gary A. Angel, Esq. Jeffrey H. Lowenthal, Esq.

Frear Stephen Schmid, Esq. Steyer Lowenthal Boodrookas Alvarez, et al.
Law Offices of Gary A. Angel One California Street, 3" Floor

177 Post Street, 8° Floor San Francisco, CA 94111

San Francisco, CA 94108 (415) 421-3400/FAX (415) 421-2234

(415) 788-5935/FAX (415) 788-5958 Attorneys for Plaintiff PERFORMING
Attorneys for Plaintiff PERFORMING ARTS, LLC
ARTS, LLC

Suzanne M. Martin, Esq.
Lewis Brisbois Bisgaard & Smith, LLP Mark C. Russell, Esq.
One Sansome Street, Suite 1400 Olivia J. Bradbury, Esq.
San Francisco, CA 94104 Gordon & Rees
(415) 438-6616/FAX (415) 434-0882 275 Battery Street, Suite 2000
Attorneys for Intervener ASPEN INSURANCE San Francisco, CA 94111

UK, LTD on behalf of Defendant KILLARNEY (415) 986-5900/FAX (415) 986-8054
CONSTRUCTION CO., a California Attorneys for Defendant CARDINAL
suspended corporation; and Defendants CONSULTING, INC.

CULLINANE CONSTRUCTION and AL

NORMAN MECHANICAL, INC.

Dion N. Cominos, Esq.

Paul Manasian, Esq.

Manasian & Rougeau, LLP

400 Montgomery Street, Suite 1000

San Francisco, CA 94104

(415) 291-8425 x4/FAX (415) 291-8426
Attorneys for Defendants MICHAEL
MURRAY and MID-MARKET
DEVELOPMENT CoO., INC.

RC1/5646727.1/VS2 -l-

- PROOF OF SERVICERopers Majeski Kohn & Bentley

A Professional Corporation

San Francisco

— oN

5. I served the document(s) by the following means:

a. O By United States mail: I enclosed the documents in a sealed envelope or package
addressed to the persons at the addresses specified in item 4 and placed the envelope
for collection and mailing, following our ordinary business practices. I am readily
familiar with this business’s practice for collecting and processing correspondence
for mailing. On the same day that correspondence is placed for collection and
mailing, it is deposited in the ordinary course of business with the United States
Postal Service, in a sealed envelope with postage fully prepaid at the address listed
in Paragraph 2 above.

b. By overnight delivery: I enclosed the documents in an envelope or package provided
by an overnight delivery carrier and addressed to the persons at the addresses in item
4, I placed the envelope or package for collection and overnight delivery at an office
or a regularly utilized drop box of the overnight delivery carrier.

c. O1 By messenger: I served the documents by placing them in an envelope or package
addressed to the persons at the addresses listed in item 4 and providing them toa
messenger for service.

d. O By fax transmission: Based on an agreement between the parties and in conformance
with Rule 2.306, and/or as a courtesy, I faxed the documents to the persons at the fax
numbers listed in item 4. No error was reported by the fax machine that I used. A
copy of the record of the fax transmission is attached.

e. O By email or electronic transmission: Based on an agreement between the parties
and/or as a courtesy, I sent the documents to the persons at the email addresses
listed in item 4. I did not receive, within a reasonable time after the transmission,
any electronic message or other indication that the transmission was unsuccessful.

T declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.

Date: December 21, 2011

Stephan Choo
Type Name ignature

RC1/5646727.1/VS2 -2-

PROOF OF SERVICE