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  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
						
                                

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1 Daniel L. Rottinghaus, Esq., California State Bar No. 131949 Scott M. Mackey, Esq., California State Bar No. 222217 2 Seema N. Kadaba, Esq., California State Bar No. 304952 BERDING & WEIL LLP ELECTRONICALLY 3 2175 N. California Blvd., Suite 500 F I L E D Walnut Creek, California 94596 Superior Court of California, 4 Telephone: 925/838-2090 County of San Francisco Facsimile: 925/820-5592 04/08/2020 5 Clerk of the Court Allan Steyer, Esq., California State Bar No. 100318 BY: ANNIE PASCUAL 6 D. Scott Macrae, Esq., California State Bar No. 104663 Deputy Clerk STEYER LOWENTHAL BOODROOKAS 7 ALVAREZ & SMITH LLP 235 Pine Street, 15th Floor 8 San Francisco, California 94104 Telephone: (415) 421-3400 9 Facsimile: (415) 421-2234 10 Attorneys for Plaintiffs MAUI PEAKS CORPORATION, NGMII LLC, and IAN KAO 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF SAN FRANCISCO 14 15 LAURA S. LEHMAN, et al., Lead Case No. CGC-16-553758 16 Plaintiffs, SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 17 v. OF MOTION FOR PRELIMINARY SETTLEMENT APPROVAL 18 TRANSBAY JOINT POWERS AUTHORITY, et al., 19 Defendants. Date: 20 Time: And Related & Consolidated cases. Location: Courtroom 303 21 This document applies to 22 Maui Peaks Corporation, et al. v. Mission 23 Street Development, et al. – CGC17-17- 560322 24 25 26 27 28 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY SETTLEMENT APPROVAL 1795790.1 - MILLENNIUM.TOWER 1 TABLE OF CONTENTS Page 2 I. INTRODUCTION ........................................................................................................... 6 3 II. PROVISIONAL CERTIFICATION OF THE SETTLEMENT CLASS ......................... 7 4 A. NUMEROSITY AND ASCERTAINABILITY .................................................. 7 5 B. COMMONALITY AND PREDOMINANCE ..................................................... 8 1. The Alleged Harm to the Settlement Class Members and the Cross- 6 Claims Among the Settling Parties Present Predominantly Common Issues ........................................................................................................ 8 7 2. TJPA’s Indemnity Obligations to the Settlement Class Members 8 Presents Predominantly Common Issues ............................................... 10 3. Whether There Was A Failure to Disclose Material Facts to the 9 Settlement Class Members is a Common Issue. .................................... 11 10 C. TYPICALITY AND ADEQUACY ................................................................... 12 III. BASIC SETTLEMENT TERMS ................................................................................... 14 11 A. SETTLEMENT CLASS DEFINITION ............................................................. 14 12 B. CLASS REPRESENTATIVES.......................................................................... 15 13 IV. KULLAR ANALYSIS ................................................................................................... 15 A. INVESTIGATION AND DISCOVERY ........................................................... 15 14 B. EXPERIENCE OF COUNSEL .......................................................................... 16 15 C. THE SETTLEMENT AMOUNT IS REASONABLE IN LIGHT OF THE RISKS TO RECOVERY AND THE VALUE OF THE SETTLEMENT 16 CLASS MEMBERS’ CLAIMS ......................................................................... 16 17 V. DISTRIBUTION ............................................................................................................ 20 VI. NOTICE – PROCEDURES ........................................................................................... 22 18 A. CLAIM FORM SUBMISSION PROCEDURE ................................................ 22 19 B. GENERAL ......................................................................................................... 25 20 C. OBJECTIONS .................................................................................................... 27 VII. NOTICE – SUBSTANCE .............................................................................................. 27 21 VIII. RELEASE ...................................................................................................................... 28 22 A. THE GENERAL RELEASE AND CIVIL CODE SECTION 1542 WAIVER ............................................................................................................ 28 23 B. THE COVENANT NOT TO SUE PROVISION .............................................. 31 24 IX. THE CLASS AGREEMENT AND GLOBAL SETTLEMENT AGREEMENT ......... 32 25 A. FINAL JUDGMENT AND RETENTION OF JURISDICTION ...................... 32 B. REDUCING THE GROSS SETTLEMENT PROCEEDS FOR OPT OUTS 26 IS NOT A REVERSION.................................................................................... 32 27 C. ADDRESSING THE COURT’S OTHER DISCRETE QUESTIONS. ............. 33 X. OVERALL TIMELINE ................................................................................................. 34 28 1 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY SETTLEMENT APPROVAL 1795790.1 - MILLENNIUM.TOWER 1 XI. MISCELLANEOUS ISSUES ........................................................................................ 35 2 XII. CONCLUSION .............................................................................................................. 35 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY SETTLEMENT APPROVAL 1795790.1 - MILLENNIUM.TOWER 1 TABLE OF AUTHORIES Page 2 Cases 3 Assilzadeh v. California Fed. Bank, 82 Cal. App. 4th 399 (2000)............................................... 18 4 Balasanyan v. Nordstrom, Inc., 294 F.R.D. 550 (S.D. Cal. 2013) ................................................ 7 5 Basurco v. 21st Century Ins. Co., 108 Cal. App. 4th 110 (2003) .......................................... 16, 17 6 Betancourt v. Advantage Human Resourcing, Inc., No. 14-CV-01788-JST, 2016 WL 344532 (N.D. Cal. Jan. 28, 2016) ............................................................................................ 20 7 Capitol People First v. Dep 't of Developmental Servs., 155 Cal. App. 4th 676 (2007) ............. 13 8 Carter v. City of Los Angeles, 224 Cal. App. 4th 808 (2014) ...................................................... 29 9 Cartt v. Superior Court, 50 Cal.App.3d 960 (1975) .................................................................... 27 10 Castillo v. Glenair, Inc., 23 Cal. App. 5th 262 (2018) ................................................................ 30 11 City of San Jose v. Superior Court, 12 Cal.3d 447 (1974) .......................................................... 17 12 Clemens v. Hair Club for Men, LLC, No. C 15-01431 WHA, 2016 WL 3442774 (N.D. 13 Cal. June 23, 2016) .................................................................................................................. 33 14 Ferrari v. Autobahn, Inc., No. 4:17-CV-00018-YGR, 2019 WL 295260 (N.D. Cal. Jan. 23, 2019) .................................................................................................................................. 30 15 Garcia v. City of King City, No. 14-CV-01126-BLF, 2017 WL 363257 (N.D. Cal. Jan. 25, 16 2017) ........................................................................................................................................ 31 17 Gay v. Waiters' & Dairy Lunchmen's Union, 549 F.2d 1330 (9th Cir. 1977) ............................... 7 18 Harper v. 24 Hour Fitness, Inc., 167 Cal. App. 4th 966 (2008) .................................................. 11 19 Hendershot v. Ready to Roll Transp., Inc., 228 Cal. App. 4th 1213 (2014) .................................. 7 20 Hickcox-Huffman v. US Airways, Inc., No. 10-CV-05193-VKD, 2019 WL 1571879 (N.D. Cal. Apr. 11, 2019) .................................................................................................................. 30 21 Hicks v. Kaufman & Broad Home Corp., 89 Cal. App. 4th 908 (2001) ....................................... 8 22 In re Anthem, Inc. Data Breach Litig., 327 F.R.D. 299 (N.D. Cal. 2018) ................................... 20 23 In re Charles Schwab Corp. Sec. Litig., No. C 08-01510 WHA, 2011 WL 1499107 (N.D. 24 Cal. Apr. 19, 2011) ............................................................................................................ 33, 34 25 In re Cipro Cases I & II, 121 Cal. App. 4th 402, 412 (2004) .................................................. 9, 18 26 In re Dynamic Random Access Memory Antitrust Litig., No. C 06-4333 PJH, 2014 WL 12879520 (N.D. Cal. June 27, 2014) ....................................................................................... 32 27 28 3 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY SETTLEMENT APPROVAL 1795790.1 - MILLENNIUM.TOWER 1 In re Franchise Tax Bd. Ltd. Liab. Corp. Tax Refund Cases, 25 Cal. App. 5th 369 (2018) ....... 13 2 In re TFT-LCD (Flat Panel) Antitrust Litig., No. M 07-1827 SI, 2011 WL 13152270 (N.D. Cal. Aug. 24, 2011)........................................................................................................ 14 3 In re Vitamin Cases, No. 301803, 2004 WL 5137597 (Cal. Super. Ct. Apr. 12, 2004) .............. 33 4 In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prod. Liab. Litig., 895 F.3d 5 597 (9th Cir. 2018) .................................................................................................................. 33 6 Koller v. Med Foods, Inc., No. 3:14-CV-2400-RS, 2018 WL 9619436 (N.D. Cal. Aug. 29, 2018) ........................................................................................................................................ 30 7 Kullar v. Foot Locker Retail, Inc., 168 Cal. App. 4th 116 (2008) ......................................... 15, 16 8 La Sala v. Am. Sav. & Loan Assn., 5 Cal. 3d 864 (1971) ............................................................ 11 9 Leo F. Piazza Paving Co. v. Found. Constructors, Inc., 128 Cal. App. 3d 583 (1981) .............. 18 10 Martinez v. Joe's Crab Shack Holdings, 231 Cal. App. 4th 362 (2014) ...................................... 13 11 Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles, 186 Cal. App. 4th 399 (2010) ............... 16 12 Occidental Land, Inc. v. Superior Court, 18 Cal. 3d 355 (1976)................................................. 12 13 Pagano v. Krohn, 60 Cal.App.4th 1 (1997) ................................................................................. 18 14 Perkins v. Linkedin Corp., No. 13-CV-04303-LHK, 2016 WL 613255 (N.D. Cal. Feb. 16, 15 2016) ........................................................................................................................................ 24 16 Pierce v. Rosetta Stone, Ltd., No. C 11-01283 SBA, 2013 WL 5402120 (N.D. Cal. Sept. 26, 2013) .................................................................................................................................. 16 17 Rosack v. Volvo of Am. Corp., 131 Cal. App. 3d 741 (1982) ...................................................... 13 18 Rose v. City of Hayward, 126 Cal.App.3d 926 (1981) .................................................................. 7 19 RSB Vineyards, LLC v. Orsi, 15 Cal. App. 5th 1089 (2017) ....................................................... 18 20 Safeco Ins. Co. v. J & D Painting, 17 Cal. App. 4th 1199 (1993) ............................................... 17 21 Schneider v. Chipotle Mexican Grill, Inc., No. 16-CV-02200-HSG, 2020 WL 511953 22 (N.D. Cal. Jan. 31, 2020) ......................................................................................................... 20 23 Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005 (9th Cir. 2012) ........................................ 32 24 Solis v Bottomley Distribution Co., Inc., No. 15-CV-287797, 2017 WL 1046615 (Cal. Super. Mar. 03, 2017) ........................................................................................................ 16, 20 25 Stern v. New Cingular Wireless Servs., Inc., No. SACV091112CASAGRX, 2010 WL 26 11530896 (C.D. Cal. Nov. 22, 2010) ....................................................................................... 24 27 Stovall-Gusman v. W.W. Granger, Inc., No. 13-CV-02540-HSG, 2015 WL 3776765 (N.D. Cal. June 17, 2015) ........................................................................................................ 20 28 4 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY SETTLEMENT APPROVAL 1795790.1 - MILLENNIUM.TOWER 1 Vasquez v. Superior Court, 4 Cal.3d 800 (1971) ......................................................................... 12 2 Villacres v. ABM Indus. Inc., 189 Cal. App. 4th 562 (2010) ....................................................... 29 3 Wellens v. Daiichi Sankyo, Inc., No. C 13-00581 WHO, 2015 WL 10090564 (N.D. Cal. Oct. 16, 2015) .......................................................................................................................... 29 4 Wershba v. Apple Computer, Inc., 91 Cal.App.4th 224 (2001) ................................................... 27 5 Wilens v. TD Waterhouse Grp., Inc., 120 Cal. App. 4th 746 (2003) ........................................... 11 6 7 Statutes Civil Code Section 1542 .................................................................................................. 29, 30, 31 8 Civil Code Section 3343 ................................................................................................................ 9 9 Code of Civil Procedure Section 384(b) ...................................................................................... 22 10 Rules of Court - Rule 3.769(h)............................................................................................... 21, 32 11 12 Other Authorities 3 Conte & Newberg, Newberg on Class Actions (4th ed. 2002) § 10:3 ...................................... 18 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY SETTLEMENT APPROVAL 1795790.1 - MILLENNIUM.TOWER 1 I. INTRODUCTION 2 Plaintiffs Maui Peaks Corporation, Ian Kao, and NGMII LLC respectfully submit this 3 supplemental memorandum in support of the unopposed motion for preliminary approval of the 4 proposed class action settlement in order to address the issues raised in the Court’s March 25, 2020 5 Tentative Ruling. 6 As shown below and in the pleadings filed concurrently herewith, the Settlement is 7 extremely beneficial to the Settlement Class Members and is not opposed by any of the Settling 8 Parties. A very significant amount of money will be paid to the Settlement Class Members 9 according to an equitable distribution formula and a notice and claims program that will 10 maximize the amount of Net Settlement Proceeds the Settlement Class Members will receive. 11 Settlement Class Members who own units in the Building will also benefit from the anticipated 12 Upgrade of The Millennium Tower, which should increase the value of their units. Resolution 13 now will avoid the significant risks and delays of continued litigation, trials, appeals and wasting 14 insurance policies. The Settlement, in short, is excellent. 15 This Supplemental Brief responds in a narrative way to the Court’s March 25, 2020 16 Tentative Ruling. As requested, a Separate Statement in Support of Preliminary Settlement 17 Approval is filed herewith, reproducing the tentative ruling, and citing to the sections of this brief, 18 the exhibits to this brief including the Class Action Settlement Agreement (“Class Agreement”) 19 and notice and claims documents, and other declarations filed herewith, that address each of the 20 Court’s points in the Tentative Ruling. (Tentative Ruling re: Motion for Preliminary Settlement 21 Approval (“Tentative Ruling” or “TR”). 1 Likewise, Class Counsel responds herein to all of the 22 Court’s questions in the Tentative Ruling by making changes to the Global Settlement 23 Agreement, the Class Agreement, the accompanying notices or claims-related documents, and/or 24 by providing evidence or authority that explains the reasonableness of the settlement terms. This 25 26 1 Pursuant to the Court’s request, Plaintiffs are submitting both clean and redlined versions of all 27 the settlement, notice and claim form documents showing the changes that have been made in response to the Tentative Ruling. See Macrae Decl. Exs. 1, 2, 3, 4 and 5. 28 6 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY SETTLEMENT APPROVAL 1795790.1 - MILLENNIUM.TOWER 1 evidence and explanation are presented through the declarations of the Plaintiffs, Class Counsel, 2 and counsel for other Settling Parties filed herewith. 3 Class Counsel sincerely appreciates the time and attention the Court has given this matter. 4 II. PROVISIONAL CERTIFICATION OF THE SETTLEMENT CLASS 5 A. NUMEROSITY AND ASCERTAINABILITY 6 As explained in its moving papers, Class Counsel seeks certification of a Settlement Class 7 that is numerous and ascertainable. 2 8 “In determining whether numerosity is satisfied, the court may consider reasonable 9 inferences drawn from the facts before it.” Balasanyan v. Nordstrom, Inc., 294 F.R.D. 550, 558 10 (S.D. Cal. 2013), citing Gay v. Waiters' & Dairy Lunchmen's Union, 549 F.2d 1330, 1332 n. 5 11 (9th Cir. 1977). “The requirement of Code of Civil Procedure section 382 that there be many 12 parties to a class action suit is indefinite and has been construed liberally. No set number is 13 required as a matter of law for the maintenance of a class action. Thus, our Supreme Court has 14 upheld a class representing the 10 beneficiaries of a trust in an action for removal of the trustees.” 15 Hendershot v. Ready to Roll Transp., Inc., 228 Cal. App. 4th 1213, 1222 (2014), quoting Rose v. 16 City of Hayward, 126 Cal.App.3d 926, 934 (1981). 17 In the Tentative Ruling, the Court acknowledged that the numerosity and ascertainability 18 requirements will likely be satisfied. TR at p. 2. The Court asked for evidence substantiating the 19 size of the Settlement Class. Id. Class Counsel has determined the anticipated number and 20 identity of the Settlement Class Members from public records of ownership of units in The 21 Millennium Tower and the records of the Millennium Tower Association. Macrae Decl. ¶ 3. 22 23 2 The Settlement Class is defined to include: “All individuals and entities who 1) own one or 24 more condominium units in The Millennium Tower, that they purchased prior to May 10, 2016; 2) purchased one or more condominium units in the Millennium Tower prior to May 10, 2016 and 25 sold such unit or units after May 10, 2016; or 3) own one or more condominium units in The Millennium Tower, that they purchased after May 10, 2016. The Settlement Class excludes the 26 Developer Defendants, TJPA, and the officers and directors and employees of the Developer Defendants and TJPA, as well as their families and also excludes the plaintiffs named in the 27 individual Millennium Tower actions who have asserted causes of action against TJPA and/or the Developer Defendants.” Class Agreement at § 2.47. 28 7 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY SETTLEMENT APPROVAL 1795790.1 - MILLENNIUM.TOWER 1 An exhibit compiling this information and identifying the purchasers of the 161 units who 2 comprise the Settlement Class is attached as Exhibit 11 to the Macrae Declaration and is being 3 submitted as part of a motion to seal to protect the identity of potential Settlement Class 4 Members. 3 5 Ascertainabilility is satisfied because the Settlement Class is objectively defined. See 6 Hicks v. Kaufman & Broad Home Corp., 89 Cal. App. 4th 908,915 (2001) (The class must be 7 defined “in terms of objective characteristics and common transactional facts making the ultimate 8 identification of class members possible when that identification becomes necessary.” Although 9 ascertainability does not require class members to be actually identified at the certification stage, 10 Plaintiffs have identified the registered owners for each unit within the Class. Plaintiffs have 11 exceeded the required showing of numerosity and ascertainability at this preliminary approval 12 stage. 13 B. COMMONALITY AND PREDOMINANCE 14 This Settlement satisfies the commonality and predominance requirements for provisional 15 certification of the Settlement Class. In the Tentative Ruling the Court asks Plaintiffs to submit 16 additional evidence showing that common issues predominate on the issues of “[1] whether the 17 Settling Parties caused the Class any harm, [2] whether this was a failure to disclose material facts 18 to Class Members and/or have indemnity obligations to Class Members under the Easement 19 Agreement, [and] [3] issues that would be discussed as to the cross-claims.” TR at p. 2. Class 20 Counsel does so below. 21 1. The Alleged Harm to the Settlement Class Members and the Cross-Claims Among the Settling Parties Present Predominantly Common Issues 22 As part of their previously filed motion for class certification Plaintiffs submitted the 23 declaration of appraisal and damages expert Eric Risberg to show that the alleged harm the Class 24 25 26 3 Because the Settlement Class is defined to exclude individuals who have brought their own actions against one of more of the Class Defendants, Class Counsel have eliminated all the 27 plaintiffs in such actions in determining the number and identity of the Settlement Class Members. 28 8 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY SETTLEMENT APPROVAL 1795790.1 - MILLENNIUM.TOWER 1 Members suffered as the result of the alleged nondisclosure of the sinking and tilting of The 2 Millennium Tower presents predominantly common issues. A copy of the Risberg Declaration is 3 attached as Exhibit 13 to the Macrae Declaration. 4 Mr. Risberg is a real estate appraisal expert experienced in retrospective appraisals to 5 determine damages in real estate cases pursuant to Cal. Civ. Code § 3343. Based on his 6 comparison of unit sales before and after May 10, 2016 and analyses of market trends since the 7 first sales in 2009, Mr. Risberg applied a common retrospective appraisal methodology to 8 determine the approximate diminution in value percent for the fair market value of units 9 purchased by each Class Member. Risberg Decl. ¶ 6. A retrospective appraisal is a value opinion 10 effective as of a specified historical date(s). Id. Mr. Risberg’s work was based on the guidelines 11 and standards prescribed for appraisals in the most current version of the 2018-2019 Uniform 12 Standards of Professional Appraisal Practice. Id at ¶ 4. His analyses were guided by Cal. Civ. 13 Code § 3343, which provides the measure of damages for real estate nondisclosure cases as the 14 difference between the purchase price and the amount the property would have been worth at the 15 time had the omitted information been disclosed. Id. at ¶ 9. 16 Mr. Risberg’s analyses indicate that each Settlement Class Member who purchased prior 17 to May 10, 2016 suffered approximately the same diminution-in-value percent loss regardless of 18 when they purchased their units and what type of units they purchased. See Risberg Decl. ¶ 14. 19 This same methodology can therefore be applied to approximate the damages of all such 20 Settlement Class Members. Id. Mr. Risberg's expert opinion is based on application of widely 21 accepted appraisal methodology to relevant, probative facts and constitutes substantial evidence 22 that impact on, and damages to, Settlement Class Members can be shown by common proof. See 23 In re Cipro Cases I & II, 121 Cal. App. 4th 402, 412 (2004) (“Expert opinion constitutes 24 substantial evidence to support a class certification order if it is based on relevant, probative facts, 25 as opposed to mere guesswork, surmise, or conjecture.”) 26 The cross-claims that have been asserted among the Settling Parties share many of the 27 same predominant common issues as Plaintiffs’ claims in the class action. With respect to the 28 9 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY SETTLEMENT APPROVAL 1795790.1 - MILLENNIUM.TOWER 1 question of the alleged cause of the settlement and tilt of The Millennium Tower, Judge Karnow 2 has already determined that such a question was common. He included the Maui Peaks Plaintiffs 3 in the Track One trial on that question and understood the issue to affect The Millennium Tower, 4 the Unit Holders, the Class, the Cross-Complainants and the Cross-Defendants, together. See 5 Case Management Orders attached to the Macrae Declaration as Exhibit 20. The Court has 6 proceeded on these Case Management Orders set by Judge Karnow and adopted the trial plan 7 calling for causation and liability to be tried as common issues. 8 The numerous Defendants and Cross-Defendants have asserted cross claims alleging that 9 the claims asserted in this class action implicate common questions with respect to causation. See 10 e.g., Cross-Complaints by Mission Street Development LLC and TJPA, Macrae Decl. Exs. 21 and 11 22. Discovery was coordinated across these issues such that document discovery and depositions 12 on causation issues were done together. Millions of pages of documents were produced on these 13 core causation issues. Declaration of Allan Steyer ¶ 10. As to causation, while the parties 14 certainly disputed their liability and/or their share of liability, Judge Karnow’s Orders regarding 15 the Track One trial recognized the issue of causation should be tried collectively. 16 2. TJPA’s Indemnity Obligations to the Settlement Class Members Presents Predominantly Common Issues 17 TJPA’s Easement Agreement is attached as Exhibit 11 to the Macrae Declaration. A copy 18 of this same Easement Agreement was included in the chain of title for every unit purchased by 19 every Class Member. Id. The answer to the question of whether TJPA owes indemnity obligations 20 to purchasers of units in The Millennium Tower will be the same for each Settlement Class 21 Member and depends on whether purchasers of units are considered “transferees” as that term is 22 used in the Easement Agreement or whether TJPA could establish one or more additional 23 defenses to the claims by the Settlement Class Members under the Easement Agreement. 24 Since each Class Member’s claim against TJPA depends on interpretation of the same 25 indemnity provision in the same Easement Agreement, Class Counsel and Plaintiffs believe those 26 claims are well suited for class certification. All Settlement Class Members share a common 27 interest in the interpretation of that agreement which is a predominant common question for each 28 10 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY SETTLEMENT APPROVAL 1795790.1 - MILLENNIUM.TOWER 1 Class Member. La Sala v. Am. Sav. & Loan Assn., 5 Cal. 3d 864, 877 (1971). Questions of 2 contract interpretation involving the same contract are ideal for class adjudication. Id.; see also 3 Harper v. 24 Hour Fitness, Inc., 167 Cal. App. 4th 966, 977 (2008); Wilens v. TD Waterhouse 4 Grp., Inc., 120 Cal. App. 4th 746, 754 (2003). 5 Whether TJPA is contractually obligated to indemnify the Settlement Class Members, as 6 the Developer Defendants’ transferees or successors in interest for the alleged diminution in value 7 to their units arising from TJPA’s use of the easement, presents a common question which could 8 be answered consistently for each Settlement Class Member. The question of whether the alleged 9 diminution in value suffered by each Settlement Class Member arises out of TJPA’s easement 10 also presents a class-wide issue. 11 Accordingly, whether the Settlement Class Members are owed indemnity obligations 12 under the Easement Agreement is also a common issue that could be resolved on a class-wide 13 basis. 14 3. Whether There Was A Failure to Disclose Material Facts to the Settlement Class Members is a Common Issue. 15 Plaintiffs’ nondisclosure claims present predominant common issues because they are not 16 based on any affirmative misrepresentations to individual Settlement Class Members but solely 17 on the Developer Defendants alleged uniform failure to disclose any information about The 18 Millennium Tower's sinking and tilting to any Class Member. The Developer Defendants 19 prepared three mandatory Final Public Reports that Plaintiffs assert omitted material information 20 known to Developer Defendants concerning the sinking and tilting of The Millennium Tower. See 21 Macrae Decl., Ex. 15. These Final Public Reports were provided to each Settlement Class 22 Member prior to their purchase. 23 The Developer Defendants employed a captive sales broker, MP Marketing of California, 24 Inc. (“MP Marketing”), which was the listing and seller’s agent for each of MSD’s sales of units 25 to prospective purchasers. The deposition testimony of MP Marketing’s sales personnel that they 26 made no disclosure of the sinking and tilting of The Millennium Tower to any purchaser provides 27 further evidence of predominance. Macrae Decl., Ex. 16, Deposition of Richard Baumert at 28 11 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY SETTLEMENT APPROVAL 1795790.1 - MILLENNIUM.TOWER 1 585:8-587:2; Ex. 18, Deposition of Jennifer Iles at 138:18-139:9; Ex. 194; Deposition of Carrie 2 Leung at 187:11-16, 188:2-189:8; Ex.19, Deposition of Bryant Kowalczyk at 354:24-357:7. 3 Class certification of nondisclosure claims is appropriate here for the Settlement Class. 4 Occidental Land, Inc. v. Superior Court, 18 Cal. 3d 355, 358 (1976) (granting class certification 5 to approximately 155 homeowners against a developer); Vasquez v. Superior Court, 4 Cal.3d 800, 6 814 (1971). This case is analogous to Occidental Land, where the “defendant developer was 7 required to file a subdivision public report with the state in order to offer the homes for sale” and 8 “each purchaser was obligated to read the report and state in writing that he had done so.” 18 9 Cal.3d at 358. The plaintiffs who purchased homes from the developer alleged that defendant's 10 public report included material misrepresentations and nondisclosures regarding monthly 11 maintenance fees. Id. at 359. The trial court certified the class and denied a motion for 12 decertification. Id. at 360. The California Supreme Court ruled that class certification was 13 appropriate. Id. 14 Here, as in Occidental Land, the class members received the same public reports with the 15 same alleged nondisclosures, making certification of the Settlement Class appropriate. 16 C. TYPICALITY AND ADEQUACY 17 The Class Representatives present claims and issues that are typical of the Settlement 18 Class and they adequately represent Settlement Class Members. The Court in the Tentative 19 Ruling asks Plaintiffs to submit evidence as to these elements. TR at p. 3. 20 As set forth in the Declarations of Ian Kao, Ge Li and Yan Shamis filed herewith, 21 Plaintiffs, like other members of the Class, purchased units in The Millennium Tower. 22 Declaration of Ian K. Kao (“Kao Decl.”) ¶¶ 2-3; Declaration of Yan Shamis (“Shamis Decl.”) ¶ 23 2-3; Declaration of Dr. Ge Li (“Li Decl.”) ¶¶ 2-4. The claims of the Plaintiffs and the Settlement 24 Class Members arise from the same allegations of harm. 25 “Typicality refers to the nature of the claim or defense of the class representative, and not 26 to the specific facts from which it arose, or the relief sought. The test of typicality is whether 27 other members have the same or similar injury, whether the action is based on conduct, which is 28 12 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY SETTLEMENT APPROVAL 1795790.1 - MILLENNIUM.TOWER 1 not unique to the named plaintiffs, and whether other class members have been injured by the 2 same course of conduct.” Martinez v. Joe's Crab Shack Holdings, 231 Cal. App. 4th 362, 375 3 (2014) (internal citation and quotation omitted); see also Rosack v. Volvo of Am. Corp., 131 Cal. 4 App. 3d 741, 763 (1982) (the fact that plaintiff’s purchase was “dissimilar from that of another 5 purchaser at approximately the same time of purchase ... has no bearing on her ability to represent 6 a class of like purchasers”). “Class representatives need not have identical interests with the class 7 members; they must only be ‘similarly situated.’” In re Franchise Tax Bd. Ltd. Liab. Corp. Tax 8 Refund Cases, 25 Cal. App. 5th 369, 395 (2018). 9 Plaintiffs’ claims are typical of those of the other Settlement Class Members. Each 10 Plaintiff purchased a unit in The Millennium Tower, and each has the same interest in obtaining 11 recovery from the Settling Parties as each of the other Settlement Class Members. Kao Decl. ¶ 2- 12 3; Shamis Decl. ¶ 2-3; Li Decl. ¶ 2-4. 13 The adequacy requirement is also satisfied. Plaintiffs have retained skilled counsel with 14 extensive experience in prosecuting class actions and complex real estate/construction defect 15 litigation. See Declarations of Daniel Rottinghaus and A