Motion-Secondary: PERFORMING ARTS LLC, VS. KILLARNEY CONSTRUCTION CO., INC. et al

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                                MOANA

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Aug-24-2012 11:18 am

Case Number: CGC-10-498405
Filing Date: Aug-24-2012 11:17
Filed by: LESLEY FISCELLA
Juke Box: 001 Image: 03737939
ORDER

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

001C03737939

Instructions:
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Jeffrey H. Lowenthal (State Bar No. 111763)

Edward Egan Smith (State Bar No. 169792)

STEYER LOWENTHAL BOODROOKAS
ALVAREZ & SMITH LLP

One California Street, Third Floor

San Francisco, California 94111

Telephone: (415) 421-3400

Facsimile: (415) 421-2234

Gary A. Angel (State Bar No. 70006)

Frear Stephen Schmid (State Bar No. 96089)
Law Offices of Gary A. Angel

177 Post Street, Eight Floor

San Francisco, CA 94108

Telephone: (415) 788-5935

Facsimile: (415) 788-5958

Attorneys for Plaintiff and Cross-Defendant
PERFORMING ARTS, LLC

FL. or
AUG 2 4 2012

my Superior Court

“RECEIVED”
AUG 10 2012

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

PERFORMING ARTS, LLC, a Delaware
limited liability company,

Plaintiff,
vs.

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

Defendants.

AND RELATED CROSS-ACTIONS.

Case No. CGC-10-498405

(| ORDER ON PERFORMING
ARTS, LLC’S OBJECTIONS TO
CARDINAL CONSULTING’S EVIDENCE
OFFERED IN SUPPORT OF ITS MOTION
FOR SUMMARY JUDGMENT

Date: August 24, 2012
Time: 9:30 AM
Dept: 302

Complaint Filed: April 7, 2010
Trial Date: February 4, 2013

[PRO@RESED] ORDER ON PERFORMING ARTS, LLC’S OBJECTIONS TO CARDINAL CONSULTING’S
EVIDENCE OFFERED IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

SAGRANITE\973 Market-Killamey\Summary Judgment - Card CTS\Objections.to evidence Cardinal - Order.wpdowe nN DH Fw

The Court’s rulings on plaintiff/cross-defendant Performing Arts, LLC’s (“Plaintiff”)
objections to evidence offered by defendant Cardinal Consulting, Inc. (“Cardinal”) in support of
its motion for summary judgment in this action pursuant to California Rule of Court 3.1354 are
as follows:

OBJECTIONS TO DECLARATION OF DAVID CARDINAL
OBJECTION NUMBER 1

“My work for UCB associated with the Subject Loan was governed by the general
Consulting Services Master Agreement I had with UCB.” (Cardinal be page 1, lines 27-28).
Grounds for Objection 1: Plaintiff objects to this testimony as completely lacking in
foundation and calls for speculation beyond the witness’s personal knowledge with respect to the
standard of care for a loan funding consultant. (Evid. Code §§ 401, 702(a)).

Court’s Ruling on Objection 1: Sustained:

Overruled: v

OBJECTION NUMBER 2
“Throughout my written reports and in my phone conversations with worn from
UCB, I advised the bank of the progress of the work at the Subject Property.” (Cardinal Dec.,
page 2, lines 10 - 12).
Grounds for Objection 2: Plaintiff objects to this testimony as hearsay, not within any

recognized exception. (Evid. Code § 1200, et seq.).

Court’s Ruling on Objection 2: Sustained:
Overruled: \ /

OBJECTION NUMBER 3
“T advised UCB there were construction components not within the original design. | also
informed UCB that the project was not proceeding according to the plans which I had been
provided with for review.” (Cardinal Dec., page 2, lines 14 - 16).

Grounds for Objection 3: : Plaintiff objects to this testimony as hearsay, not within any

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[PBOROSEB] ORDER ON PERFORMING ARTS, LLC’S OBJECTIONS TO CARDINAL CONSULTING’S
EVIDENCE OFFERED IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

‘SAGRANITE\973 Market-Killarney\Summary Judgment - Card CTSiObjections.to evidence Cardinal - Order. wpdrecognized exception. (Evid. Code § 1200, et seq.).
Court’s Ruling on Objection 3: Sustained: .
Overruled:
OBJECTION NUMBER 4
“UCB understood the status of the project... .” (Cardinal Dec., page 2, line 25).

Grounds for Objection 4: Plaintiff objects to this testimony as completely lacking in foundation
and calls for speculation beyond the witness’s personal knowledge. (Evid. Code §§ 401, 702(a)).
Court’s Ruling on Objection 4: Sustained: Vv

Overruled:

OBJECTION NUMBER 5
“I informed UCB of this stoppage of work in my report, as well as verbally. I also sent an
email on June 17, 2008 to Tamara Shapiro and Ellen Chiu Yee of UCB...” and Exhibit I
referenced therein. (Cardinal Dec., page 3, lines 3 - 6).
Grounds for Objection 5: Plaintiff objects to this testimony as hearsay, not within any
recognized exception. (Evid. Code § 1200, et seq.).
Court’s Ruling on Objection 5: Sustained:

Overruled:

OBJECTION NUMBER 6
“My services were completed in accordance with the standard procedures that were
established with UBC during the 15 years we worked together.” (Cardinal Dec., page 3, lines 8 -
9).
Grounds for Objection 6: Plaintiff objects to this testimony as completely lacking in foundation
and hearsay not within any recognized exception. (Evid. Code §§ 401, 702(a), 1200, et seq.). The

declarant does not offer any foundational facts with respect to the so-called “standard

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[PROPOSED] ORDER ON PERFORMING ARTS, LLC’S OBJECTIONS TO CARDINAL CONSULTING’S
EVIDENCE OFFERED IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

SAGRANITEI973 Market-Killamey\Summary Judgment - Card CTS'Objections to, evidence Cardinal - Order. wpdoom ND Hh BF WN

procedures” nor how those support the conclusory statement of compliance.
Court’s Ruling on Objection 6: Sustained:

Overruled:

OBJECTIONS TO DEPOSITION OF ELLEN CHIU-YEE
OBJECTION NUMBER 7

“Q. To the extent you were involved in those discussions, do you ever recall the parties talking
about the assignment of a claim against Cardinal Consulting?

MR. ANGEL: Let me object. It's vague and ambiguous, lacks foundation. She has said she's not
involved in any discussions with regard to this documentation and how it was framed or how it
was negotiated and calls for speculation.

MR. RUSSELL: Q. He's raised his objection. My question was any of your discussions
involving the sale of a Note, do you ever recall there being reference to an assignment of any
claim against Cardinal Consulting.

MR. ANGEL: Same objections: Calls for a legal conclusion. Go ahead.

THE WITNESS: I don't recall. As I mentioned, I attended the meeting where they discussed
about purchasing either the Note or the real property and I may have had other --

MR. RUSSELL: Q. I understand. I'm trying to be quick here.
MR. ANGEL: Can I hear her --

MR. RUSSELL: She answered my question.

MR. ANGEL: Ellen, did you finish?

THE WITNESS: It's just other discussions withactually Marin Mortgage who was acting as a
broker.

MR. RUSSELL: Q. Again, my question was: In your involvement in those discussions was there
ever an assignment of any potential claims against Cardinal Construction (sic)?

A.No.
MR. ANGEL: Same objection.

MR. RUSSELL: Q. Did Stan Seid or anybody else in the secondary marketing department ever
speak to you about possible claims to assign relating to Cardinal Consultant's work on this
project?

A.No.
MR. ANGEL: Same objections.
MR. RUSSELL: Q. Has anybody ever asked you or inquired with you as to whether there was a

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[PR@PESEB] ORDER ON PERFORMING ARTS, LLC’S OBJECTIONS TO CARDINAL CONSULTING’S
EVIDENCE OFFERED IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

$\GRANITE!973 Market-Killarney\Summary Judgment - Card CTS\Objections.to evidence Cardinal - Order wpdbasis of any claims to be assigned by United Commercial Bank regarding the work Cardinal
Consulting did on this project?

MR. ANGEL: Same objection: Witness incompetence, calls for a legal conclusion.
THE WITNESS: There was actually no discussions of any assignments unless it was talking
about the plans and specs we have in the office, which would have to have been provided to the
purchaser. But there was no discussions about any assignments really per se.”
(Russel Ex. G, at 218:4 - 220:14).
Grounds for Objection 7: Plaintiff objects to this testimony as completely lacking in foundation
and calls for speculation beyond the witness’s personal knowledge, and amounting to hearsay not
within any recognized exception. (Evid. Code §§ 401, 702(a), 1200, et seq.). The testimony does
not establish that the witness has any personal knowledge or had any authority with respect to the
terms of the assignment of rights under the Loan Purchase Agreement between Plaintiff and
UCB. Further, to the extent CTS offers this testimony to contradict the express, integrated terms
of the Loan Purchase Agreement, including the definition of Loan Assets contained therein,
(Cassidy Ex. 1, at 3), the testimony is barred by the parol evidence rule. See, e.g., EPA Real
Estate Partnership v. Kang (1992) 12 Cal. App. 4th 171, 175 (parol evidence rule “generally
prohibits the introduction of extrinsic evidence—oral or written—to vary or contradict the terms
of an integrated written instrument”).
Court’s Ruling on Objection 7: Sustained:

Overruled: v

, ,
Dated: August, 2012 Wats \ Wi,

Judge of the Suptrior Court

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[PR@PESEB}-ORDER ON PERFORMING ARTS, LLC’S OBJECTIONS TO CARDINAL CONSULTING’S

EVIDENCE OFFERED IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
SAGRANITE\973 Market-Killemey\Summary Judgment - Card, CTS\Objections.to evidence Cardinal - Order. wpd