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  • RADIANCE OWNERS ASSOCIATION, A CALIFORNIA VS. BOSA DEVELOPMENT CALIFORNIA II, INC. A CALIFORNIA ET AL CONSTRUCTION document preview
  • RADIANCE OWNERS ASSOCIATION, A CALIFORNIA VS. BOSA DEVELOPMENT CALIFORNIA II, INC. A CALIFORNIA ET AL CONSTRUCTION document preview
  • RADIANCE OWNERS ASSOCIATION, A CALIFORNIA VS. BOSA DEVELOPMENT CALIFORNIA II, INC. A CALIFORNIA ET AL CONSTRUCTION document preview
  • RADIANCE OWNERS ASSOCIATION, A CALIFORNIA VS. BOSA DEVELOPMENT CALIFORNIA II, INC. A CALIFORNIA ET AL CONSTRUCTION document preview
  • RADIANCE OWNERS ASSOCIATION, A CALIFORNIA VS. BOSA DEVELOPMENT CALIFORNIA II, INC. A CALIFORNIA ET AL CONSTRUCTION document preview
  • RADIANCE OWNERS ASSOCIATION, A CALIFORNIA VS. BOSA DEVELOPMENT CALIFORNIA II, INC. A CALIFORNIA ET AL CONSTRUCTION document preview
  • RADIANCE OWNERS ASSOCIATION, A CALIFORNIA VS. BOSA DEVELOPMENT CALIFORNIA II, INC. A CALIFORNIA ET AL CONSTRUCTION document preview
  • RADIANCE OWNERS ASSOCIATION, A CALIFORNIA VS. BOSA DEVELOPMENT CALIFORNIA II, INC. A CALIFORNIA ET AL CONSTRUCTION document preview
						
                                

Preview

1 Timothy C. Earl, Esq. (SBN 174967) Yaniv Newman, Esq. (SBN 293149) 2 ELECTRONICALLY SULLIVAN HILL REZ & ENGEL 600 B Street, 17th Floor F I L E D 3 San Diego, CA 92101 Superior Court of California, County of San Francisco Tel: (619) 233- 4100 4 Fax: (619) 231- 4372 06/14/2019 earl@sullivanhill.com Clerk of the Court BY: ERNALYN BURA 5 newman@sullivanhill.com Deputy Clerk 6 Attorneys for Defendants/Cross-Complainants BOSA DEVELOPMENT CALIFORNIA, INC. and BOSA 7 DEVELOPMENT CALIFORNIA II, INC. 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 RADIANCE OWNERS ASSOCIATION, a ) Case No.: CGC 16-551093 California non-profit corporation on behalf ) 11 of itself, and in its representative capacity ) JOINT CASE MANAGEMENT on behalf of its members, ) STATEMENT 12 ) Plaintiff, ) Trial Date: Vacated 13 v. ) Complaint Filed: March 23, 2016 ) Department: 305 14 BOSA DEVELOPMENT CALIFORNIA ) II, INC., a California Corporation; BOSA ) Judge: Hon. Mary E. Wiss 15 DEVELOPMENT CALIFORNIA, INC., a ) California Corporation; ACCO ) Date: June 19, 2019 16 ENGINEERED SYSTEMS, INC., a ) Time: After Mandatory California Corporation; BAYSIDE TILE & ) Settlement 17 STONE, INC., a California Corporation; ) Conference of Same HIGHRISE MECHANICAL, INC., a ) Date 18 California Corporation; HIGHTOWER ) FINISHING, INC., a California ) Dept: 305 19 Corporation; NORTH BAY OVERHEAD ) DOORS, INC., a California Corporation; ) 20 OAKMONT INDUSTRIES, LTD, a ) Canadian Limited Company; STARLINE ) 21 WINDOWS, INC., a Washington ) Corporation; VALLEY CREST ) 22 LANDSCAPE, INC., a California ) Corporation; and DOES 1-300, inclusive, ) 23 ) Defendant. ) 24 ) 25 BOSA DEVELOPMENT CALIFORNIA, INC., ) a California corporation and BOSA ) 26 DEVELOPMENT CALIFORNIA II, INC., a ) California corporation, ) 27 ) Cross-Complainants, ) 28 v. ) ) 404376-v1 1 JOINT CASE MANAGEMENT STATEMENT ) 1 ACCO ENGINEERED SYSTEMS, INC., a ) California Corporation; BAYSIDE TILE & ) 2 STONE, INC., a California Corporation; ) B&C PAINTING & DECORATING/ ) 3 JERRY THOMPSON & SONS ) PAINTING, INC., a California joint ) 4 venture; EAST & WEST ALUM CRAFT, ) LTD, a Canadian Limited Company; ) 5 FREDERICK MEISWINKEL, INC., a ) California Corporation; HIGHRISE ) 6 MECHANICAL, a California Corporation; ) HIGHTOWER FINISHING, INC., a ) 7 California Corporation; NORTH BAY ) OVERHEAD DOORS, INC., a California ) 8 Corporation; OAKMONT INDUSTRIES, ) LTD, a Canadian Limited Company; ) 9 PERFORMANCE CAULKING & ) WATERPROOFING, INC., a California ) 10 Corporation; PETER ROSS CA, INC., a ) California Corporation; SOUTHLAND ) 11 ELECTRIC, INC., a California ) Corporation; STARLINE WINDOWS, ) 12 INC., a Washington Corporation; ) VALLEYCREST LANDSCAPE ) 13 DEVELOPMENT, INC., a California ) Corporation; and ROES 1-100, inclusive, ) 14 ) Cross-Defendants. ) 15 ) 16 17 This Joint Case Management Statement is submitted jointly by BOSA DEVELOPMENT 18 CALIFORNIA II, INC., a California corporation (“BOSA I”); BOSA DEVELOPMENT 19 CALIFORNIA, INC., a California corporation (“BOSA II” and collectively with BOSA I, “BOSA”); 20 ACCO ENGINEERED SYSTEMS, INC., a California corporation (“ACCO”); BAYSIDE TILE & 21 STONE, INC., a California corporation (“BAYSIDE”); PETER ROSS CALIFORNIA, INC., a 22 California corporation (“PETER ROSS”); STARLINE WINDOWS, INC., a Washington corporation 23 (“STARLINE”); and PERFORMANCE CAULKING & WATERPROOFING, INC. 24 (“PERFORMANCE CAULKING” and with ACCO, BAYSIDE, PETER ROSS, STARLINE, and 25 PERFORMANCE CAULKING, the “CROSS-DEFENDANTS”); and THE INSURANCE 26 COMPANY OF THE STATE OF PENNSYLVANIA, as carrier for HIGHRISE MECHANICAL, 27 INC., a suspended corporation (“ICSOP”). 28 404376-v1 2 JOINT CASE MANAGEMENT STATEMENT 1 I. 2 STATUS OF THE CASE 3 A. BOSA DEVELOPMENT CALIFORNIA, INC. AND BOSA DEVELOPMENT 4 CALIFORNIA II, INC. 5 As previously reported, Plaintiff RADIANCE OWNERS ASSOCIATION (“PLAINTIFF”), 6 BOSA, and certain product suppliers and/or manufacturers1 have reached a settlement (the 7 “Settlement Agreement”). The Settlement Agreement has since been fully executed, and pursuant 8 thereto PLAINTIFF filed a Request for Dismissal of the Complaint with Prejudice on or about 9 March 19, 2019. Pursuant to the Settlement Agreement BOSA filed a Request for Dismissal of its 10 First Amended Cross-Complaint (“FACC”) on April 11, 2019 requesting dismissal of its FAC with 11 prejudice as to Cross-Defendants Quanex Building Products Corporation, Starline Windows, Ltd, 12 and Vitrum Industries, Ltd. 13 BOSA and ACCO have also reached a settlement, and have fully executed a written 14 settlement agreement – said agreement requires and is contingent upon a determination that the 15 settlement agreement was made in good faith pursuant to section 877.6 of the California Code of 16 Civil Procedure. ACCO filed an Application for Determination of Good Faith Settlement on June 4, 17 2019. 18 With the exception of ACCO, BOSA and the CROSS-DEFENDANTS have not reached a 19 settlement as to BOSA’s claims, which are expressly reserved in the Settlement Agreement with 20 PLAINTIFF. However, BOSA now seeks leave to amend its FACC to limit recovery from the 21 remaining CROSS-DEFENDANTS to monies BOSA incurred and/or paid within the $1 million self- 22 insured retention in the ICSOP OCIP insurance policy applicable to the instant litigation. 23 BOSA has prepared a Second Amended Cross-Complaint (“SACC”) to allege Breach of 24 Contract, Negligent Misrepresentation, and Declaratory Relief (Duty to Defend) against the CROSS- 25 26 1 The settling suppliers and/or manufacturers are AKZO NOBEL COATINGS, INC., QUANEX BUILDING 27 PRODUCTS CORPORATION, STARLINE WINDOWS LTD., and VITRUM INDUSTRIES LTD. 28 404376-v1 3 JOINT CASE MANAGEMENT STATEMENT 1 DEFENDANTS. BOSA has met and conferred with counsel for the CROSS-DEFENDANTS in this 2 regard. In advance of the April 15, 2019 Case Management Conference STARLINE, ACCO, and 3 PETER ROSS, by and through their respective counsel, stipulated that this Court may grant BOSA 4 leave to file the SACC, a copy of which was attached to the Joint Case Management Conference 5 Statement submitted by the parties in advance of said conference. ICSOP does not object to the 6 Court’s granting BOSA leave to file the SACC. 7 At the April 15, 2019 Case Management Conference the Court ordered counsel for BOSA, 8 BAYSIDE, and PERFORMANCE CAULKING to meet and confer regarding stipulating to allow 9 BOSA to file a SACC, and directed counsel for BOSA to file a Motion for Leave to Amend its 10 FACC for a hearing to take place after the Mandatory Settlement Conference ordered for June 12, 11 2019 (then rescheduled by Commissioner Pang Ly to June 19, 2019). 12 BOSA timely filed a Motion for Leave to Amend its FACC on May 17, 2019. Written 13 discovery has been conducted during the course of this litigation. While some limited expert 14 discovery may still be required, BOSA does not believe any further fact discovery is necessary as the 15 claims and causes of action stated in the SACC are entirely based on the same facts at issue during 16 the course of the litigation. 17 In light of the foregoing, BOSA respectfully requests that the Court set a date for trial, and 18 continue the Case Management Conference ninety (90) days to September 17, 2019 or another date 19 convenient to the Court. 20 B. ACCO ENGINEERED SYSTEMS, INC. 21 ACCO and BOSA have reached and fully executed a settlement agreement and mutual 22 release relating to BOSA’s claims against ACCO, including BOSA’s Cross-Complaint. ACCO filed 23 and served an Application for Good Faith Determination on June 4, 2019. Parties have until July 1, 24 2019 to object to ACCO’s Application for Good Faith Determination. Assuming the Court 25 determines the settlement between BOSA and ACCO was reached in good faith, ACCO will 26 promptly make a settlement payment to BOSA whereupon BOSA will dismiss its Cross-Complaint 27 as to ACCO with prejudice. 28 404376-v1 4 JOINT CASE MANAGEMENT STATEMENT 1 C. BAYSIDE TILE & STONE, INC. 2 BAYSIDE denies the allegations in BOSA's operative Cross-Complaint and reserves its right 3 to file a cross-complaint against BOSA for fraud, misrepresentation and reformation of contract. 4 D. PETER ROSS CALIFORNIA, INC. 5 PETER ROSS respectfully disagrees with the assertion that only limited or no further 6 discovery will be needed upon the filing of an amended cross-complaint by BOSA. PETER ROSS 7 reserves its rights to conduct discovery, both written and oral, on the allegations in the amended 8 cross-complaint and to file its own pleadings and cross-complaint potentially bringing in new 9 parties once the amended cross-complaint has been filed. Moreover, PETER ROSS’ position is the 10 proposed trial date will not allow sufficient time for this to transpire, nor will the case be at issue on 11 the expected pleadings by that date. Instead, PETER ROSS suggests that that a trial setting 12 conference be set once the pleadings are at issue or at that a trial setting conference be set for a date 13 upon which the Court expects the pleadings would be at issue. 14 E. STARLINE WINDOWS, INC. 15 STARLINE disagrees with BOSA’s assertion that fact discovery has been completed and that 16 only some limited expert discovery may be required in this case. As described above, BOSA seeks 17 leave to amend its FACC to limit recovery from the remaining CROSS-DEFENDANTS to monies 18 BOSA incurred and/or paid within the $1 million self-insured retention in the ICSOP OCIP 19 insurance policy applicable to the instant litigation, which was not previously alleged in its FACC. 20 In addition, BOSA’s SACC now alleges negligent misrepresentation against STARLINE. Although 21 some written discovery has been conducted during the course of this litigation, no discovery, written 22 or otherwise, has been conducted with respect to these new allegations asserted by BOSA in its 23 SACC. 24 STARLINE reserves its rights to conduct discovery, both written and oral, limited to the 25 allegations in BOSA’s SACC, and to file its own pleadings, counterclaims, and/or cross- 26 complaint(s) as appropriate. 27 28 404376-v1 5 JOINT CASE MANAGEMENT STATEMENT 1 In light of the new allegations against Starline asserted in Bosa’s SACC, Starline respectfully 2 requests that the Court set a date for trial in approximately one year, or as soon thereafter as is 3 convenient for the Court. 4 F. THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, as carrier for HIGHRISE MECHANICAL, INC. 5 6 ICSOP intends to dismiss its Complaint in Intervention when BOSA’s Second Amended 7 Cross-Complaint limiting its claim to recovery against BOSA’s subcontractors for monies incurred 8 and/or paid by BOSA within the $1 million self-insured retention in the ICSOP OCIP insurance 9 policy applicable to the litigation is filed. ICSOP is not acting on behalf of HIGHRISE 10 MECHANICAL, INC. with respect to the claims asserted in the Second Amended Cross-Complaint. 11 If BOSA intends to pursue its Second Amended Cross-Complaint against HIGHRISE 12 MECHANICAL, INC., BOSA must serve HIGHRISE MECHANICAL, INC. with the Second 13 Amended Cross-Complaint. The aforementioned notwithstanding, ICSOP does not object to the 14 Court granting BOSA leave to file the Second Amended Cross-Complaint. 15 G. PERFORMANCE CAULKING & WATERPROOFING, INC. 16 PERFORMANCE CAULKING denies each allegation alleged against it in the Amended 17 Cross-complaint. Further, PERFORMANCE CAULKING requests that any discovery stay be lifted, 18 and PERFORMANCE CAULKING be permitted to conduct any necessary discovery, as new facts 19 and causes of action are asserted in the Amended Cross-complaint. 20 II. 21 DISCOVERY 22 BOSA maintains that written discovery has been completed as to the facts and circumstances 23 underlying the claims and causes of action stated in BOSA’s SACC – which does not state new 24 allegations of damages. All that remains is to take depositions of certain percipient and possibly 25 expert witnesses. 26 In light of allegations in BOSA’s proposed SACC, CROSS-DEFENDANTS disagree with 27 BOSA that written discovery has been completed. CROSS-DEFENDANTS do not agree to any 28 limitations on written discovery. BAYSIDE also requests the Court lift the stay on all discovery and 404376-v1 6 JOINT CASE MANAGEMENT STATEMENT 1 that the Court re-assume the role of adjudicating any discovery disputes between the parties by 2 discharging the discovery referee. 3 III. 4 MEDIATION AND SETTLEMENT 5 BOSA and the CROSS-DEFENDANTS intend to continue their settlement efforts, and to 6 this end intend to schedule and participate in mediation after BOSA files a Second Amended Cross- 7 Complaint. BOSA and the CROSS-DEFENDANTS will have participated in a Mandatory 8 Settlement Conference ("MSC") as of the time that they appear before the Court for the Case 9 Management Conference that isthe subject of the Joint Case Management Conference Statement. 10 The parties will report the results ofthe MSC at the Case Management Conference. 11 IV. 12 CASE MANAGEMENT ORDER 13 The parties hereto agree that it is advisable for the parties to submit, and for the Court to 14 enter, a revised Case Management Order ("CMO") revising the timeline in the Court's Second 15 Amended Case Management Order #5 entered January 12, 2018, for completion of discovery still 16 remaining to be completed, pretrial case management, and for trial. 17 In light of the foregoing reported case status, BOSA asks that the Court set this matter for 18 trial no sooner than one year, or thereafter as is convenient for the Court. Following the setting of a 19 trial date, the parties will meet and confer to develop and propose to the Court revisions to the CMO 20 taking the new trialdate into consideration. The parties will submit the proposed amended CMO 21 within thirty days ofthis Case Management Conference, by July 19, 2019. 22 23 Dated: June It/ 2019 24 25 26 27 28 404376-vl 7 JOINT CASE MANAGEMENT STATEMENT 1 Dated: June_ll_, 2019 ROGERS JOSEPH O'DONNELL, APLC 2 3 By: 4 Alan WiJh&ny)ESq: Tyson Arbuthnot, Esq. 5 Attorneys for Defendant and Cross-Defendant ACCO ENGINEERED SYSTE;MS, INC. 6 7 Dated: June_ _,_ 2019 McNAMARA NEY BEATTY SLA TIERY BORGES & AMBACHER, LLP 8 9 By: 10 Paul B. Walsh, Esq. Attorneys for Defendant and Cross-Defendant 11 ACCO ENGINEERED SYSTEMS, lNC. 12 Dated: June_ _ , 2019 LAW OFFICE OF JOHN L. BOZE 13 14 15 By: 16 John.L. Boze, Esq. Attorneys for Cross-Defendant BAYSIDE TILE & 17 STONE, INC. 18 Dated: June_ _ , 2019 LAW OFFICES OF WAGNER& ISERT-KOTT 19 20 21 By: 22 John J. Wasinda, Esq. Attorneys for Cross-Defendant BAYSIDE TlLE & 23 STONE, INC. and PERFORMANCE CAULKING & WATERPROOFING, INC. 24 25 26 27 28 404376-vl 8 JOINT CASE MANAGEMENT STATEMENT Dated: June_ _, 2019 ROGERS JOSEPH O'DONNELL, APLC 2 3 By: 4 Alan Wilhemy, Esq. Tyson Arbuthnot, Esq. 5 Attomeys for Defendant and Cross-Defendant ACCO ENGINEERED SYSTEMS, INC. 6 7 Dated: June~,2019 McNAMARA NEY BEATTY SLATTERY BORGES & AMBACHER, LLP 8 9 10 11 12 Dated: June_ _ ,2019 LAW OFFICE OF JOHN L. BOZE 13 14 15 By: 16 John L. Boze, Esq. Attorneys for Cross-Defendant BAYSIDE TILE & 17 STONE, INC. 18 Dated: June_ _ , 2019 LAW OFFICES OF WAGNER & ISERT-KOTT 19 20 21 By: 22 John J. Wasinda, Esq. Attorneys for Cross-Defendant BAYSIDE TILE & 23 STONE, INC. and PERFORMANCE CAULKING & WATERPROOFING, INC. 24 25 26 27 28 404376-v\ 8 JOINT CASE MANAGEMENT STATEMENT 1 Dated: June_ _, 2019 ROGERS JOSEPH O'DONNELL, APLC 2 3 By: 4 Alan Wilhemy, Esq. Tyson Arbuthnot, Esq. 5 Attorneys for Defendant and Cross-Defendant ACCO ENGINEERED SYSTEMS, INC. 6 7 Dated: June._ _ , 2019 McNAMARA NEY BEATTY SLATTERY BORGES & AMBACHER, LLP 8 9 By: 10 Paul B. Walsh, Esq. Attorneys for Defendant and Cross-Defendant 11 ACCO ENGINEERED SYSTEMS, INC. 12 Dated: June_ _, 2019 LAW OFFICE OF JOHN L. BOZE 13 14 15 By: 16 John L. Boze, Esq. Attorneys for Cross-Defendant BAYSIDE TILE & 17 STONE, INC. 18 Dated: June 14 , 2019 LAW OFFICES OF WAGNER & ISERT-KOTT 19 20 21 By: 22 John J. Wa5inda, Esq. Attorneys for Cross-Defendant BAYSIDE TILE & 23 STONE, INC. and PERFORMANCE CAULKING & WATERPROOFING, INC. 24 25 26 27 28 404376-vl 8 JOINT CASE MANAGEMENT STATEMENT JuneJi, 2019 RYAN & LIFTER By: Jill . LifterE . G A. Berticevich, Esq. Attorneys for Plaintiff-in-Intervention THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, insurer ofHIGHRISE MECHANICAL, a suspended cotporation June_ _, 2019 ERICKSEN ARBUTHNOT By: Albert M. T. Finch, III, Esq. Attorneys for Cross-Defendant PETER ROSS, INC. June_ _ , 2019 HEFFERNAN LAW GROUP, PLLC By: Monica Kim Sham, Esq. Attorneys for Defendant Cross-Defendant and Cross-Complainant STARLINE WINDOWS, INC. 9 JOINT CASE MANAGEMENT STATEMENT June_ _,2019 RYAN & LIFTER By: Jill J. Lifter, Esq. Gary A. Berticevich, Esq. Attorneys for Plaintiff-in-lntervention THE INSURANCE COrvfP ANY OF TilE STATE OF PENNSYLVANIA, insurer ofHIGHRISE MECHANICAL, a suspended corporation June !:5 , 2019 OT ....,...W{tl rfi. r' ( f\1 By: June_ _ ,2019 HEFFERNAN LAW GROUP, PLLC By: Monica Kim Sham, Esq. Attorneys for Defendant, Cross-Defendant, and Cross-Complainant S-TARLINE WINDOWS, INC. 9 JOINT CASE MANAGEMENT STATEMENT Dated: June _ _ , 2019 RYAN & LIFTER 2 3 By: 4 Jill J. Lifter, Esq. Gary A. Berticevich, Esq. 5 Attorneys for Plaintiff-in-Intervention THE INSURANCE COMPANY OF THE STATE OF 6 PENNSYLVANIA, insurer of HIGHRISE MECHANICAL, a suspended corporation 7 8 Dated: June_ _, 2019 ERICKSEN ARBUTHNOT 9 10 By: II Albert M. T. Finch, Ill, Esq. Attorneys for Cross-Defendant PETER R9SS, INC. 12 13 June___!l!!!_, 2019 HEFFERNAN LAW GROUP, PLLC Dated: 14 15 ~ft---.,;~ 16 By: Monica Kim Sham, Esq. 17 Attorneys for Defendant, Cross-Defendant, and Cross-Complainant STARLINE WINDOWS, INC. 18 19 20 21 22 23 24 25 26 27 28 404376-vl 9 JOINT CASE MANAGEMENT STATEMENT