Har Construction Inc vs. Sweetwater Union High School District [E-File]

Reply to Opposition Other

Cal. Super. - 4th Dist.September 26, 2011

oe RX N n R A W O N N N N N N N N N N e e m m em pm p m em N S A nt RA W N = O O R R W N = Oo 28 Collins Collins Muir + Stewart LLp 1100 El Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 Brian K. Stewart, State Bar No. 126412 Howard Franco, Jr., State Bar No. 115625 ELECTRONICALLY FILED Christian E. Bredeson, State Bar No. 240314 RE Sills =" COLLINS COLLINS MUIR +STEWART LLP 02/05/2016 2t 10-0400 Au 2011 Palomar Airport Road, Suite 207 Clerk of the Superior Court Carlsbad, CA 92011 By Adam Beason,Deputy Clerk (760) 274-2110 - FAX (760) 274-2111 Attorneys for Cross-Defendant, THE SEVILLE GROUP, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO - HALL OF JUSTICE HAR CONSTRUCTION, INC., CASE NO. 37-2011-00078945-CU-BC-SC [Assigned to Judge Ronald Styn - Dept. 62] Plaintiffs, CROSS-DEFENDANT THE SEVILLE GROUP INC.’S REPLY TO HAR CONSTRUCTION INC.’S OPPOSITION TO THE SEVILLE GROUP’S MOTION IN LIMINE NO. 2 RE: PARTICIPATION OF COUNSEL FOR THE SEVILLE GROUP AT TRIAL VS. SWEETWATER UNION HIGH SCHOOL DISTRICT, et al., Defendants. DATE: February 11, 2016 TIME: 11:00 a.m DEPT: C-62 Complaint Filed: 9-26-11 Trial Date: 4/22/16 AND ALL RELATED CROSS-ACTIONS N r r N N e N e N e N e N e N e N e N e N e N N N e N N N N N e N N TO THE COURT, ALL PARTIES, AND TO THEIR ATTORNEYS OF RECORD: Cross-Defendant, the Seville Group Incorporated (“SGI”) hereby submits it’s Reply to HAR Construction Incorporated’s Opposition to SGI's Motion in Limine No. 2 re: The SGI's participation 18349 1 SGI’S REPLY TO HAR’S OPPOSITION TO SGI’S MOTION IN LIMINE NO 2. RE: PARTICIPATION OF COUNSEL FOR THE SEVILLE GROUP AT TRIAL oe RX N n R A W O N N N N N N N N N N e e m m em pm p m em N S A nt RA W N = O O R R W N = Oo 28 Collins Collins Muir + Stewart LLp 1100 El Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 at Phase 1 of trial. I. INTRODUCTION There is no basis in law to limit SGI's participation at Phase 1 of trial. This is because the operative pleading under which Phase 1 will proceed is the Second Amended Cross-Complaint (“SACC”) filed by Sweetwater Union High School District (“Sweetwater”). The Seville Group Incorporated (“SGI”) is a named party to this same SACC. SGI is therefore a direct party in interest in Phase 1 and must be provided the opportunity to fully participate and defend itself at trial. Additionally, Phase 1 of trial concerns the validity of the Settlement and Release Agreement dated April 28, 2010 (“Agreement”). As set forth in SGI's moving papers, this Agreement explicitly extends to agents of Sweetwater Union High School District. (Agreement, page 2, 5.) SGI is a judicially determined agent of Sweetwater. Accordingly, the Agreement released HAR’s claims against SGI. Such a release would have no legal purpose if SGI was prevented from suing to enforce such a release. SGI has standing to enforce the Agreement’s terms and should not be deprived of full and fair participation at trial. Finally, HAR has provided no authority supporting its position that SGI should be excluded from participating fully in Phase 1 of trial. II. SGI HAS STANDING AS A DIRECT PARTY IN INTEREST TO THE SACC TO PARTICIPATE IN PHASE 1 OF TRIAL HAR contends SGI does not have standing to participate in Phase 1 of trial because HAR has no claims against SGI. While it is true HAR has no claims against SGI in Phase 1, Phase 1 does not concern HAR’s claims against any party. Phase 1 does not even concern HAR’s claims against Sweetwater. Phase 1 concerns Sweetwater’s claims in the SACC against HAR, SGI, and other subcontractors, and HAR’s affirmative defense to one such claim. Whether HAR is asserting claims against any party in Phase 1 has little, if any relevance. 1" 18349 2 SGI’S REPLY TO HAR’S OPPOSITION TO SGI’S MOTION IN LIMINE NO 2. RE: PARTICIPATION OF COUNSEL FOR THE SEVILLE GROUP AT TRIAL oe RX N n R A W O N N N N N N N N N N e e m m em pm p m em N S A nt RA W N = O O R R W N = Oo 28 Collins Collins Muir + Stewart LLp 1100 El Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 As a party named in the SACC SGI has a direct interest in this litigation and standing to fully participate in Phase 1 of trial. Limiting SGI’s participation in a trial on a complaint to which they are a named party would raise due process concerns and at a minimum, result in severe prejudice to SGI. Further, HAR has provided no authority in support of their position that Cross-Defendant SGI should be prevented from fully participating in trial on a complaint in which they are named. III. AS A PARTY TO THE SETTLEMENT AND RELEASE AGREEMENT SGI HAS STANDING TO FULLY PARTICIPATE IN PHASE 1 HAR contends SGI lacks standing to fully participate in Phase 1 of trial because they are not a named party to the Agreement. Page 2, paragraph 5 of the Agreement states, “HAR hereby releases and forever discharges The District and its successors, assigns, and each of them, and each past or present employee, agent, representative, officer, insurer...from any and all claims, liens, demands, causes of action, obligations, damages and liabilities, known or unknown, that HAR has had in the past, or now has, or may have...” SGI is a judicially determined as the owners representative as the program manager of Sweetwater. Accordingly, HAR released claims against SGI pursuant to the Agreement, making SGI an intended beneficiary of the Agreement. SGI accordingly has an interest in the enforcement of the Agreement. SGI must be allowed to participate in Phase 1 of trial to adequately protect this interest. IV. PRINCIPLES OF FAIRNESS REQUIRE SGI'S FULL PARTICIPATION HAR expresses concern over the principles of fairness and unreasonable delay by allowing SGI and the other Cross-Defendants to fully participate at trial. As argued above, however, SGI is a named party to the operative pleading under which Phase 1 of trial will proceed and SGI is an intended beneficiary of the Agreement. There will only be fairness if SGI is provided full participation at trial. There is nothing fair in excluding a party from a trial on a complaint in which that party is named. Likewise, there is nothing fair about excluding an intended beneficiary of an agreement from participating in a trial on that agreement. Finally, it is not unreasonable, as HAR 18349 3 SGI’S REPLY TO HAR’S OPPOSITION TO SGI’S MOTION IN LIMINE NO 2. RE: PARTICIPATION OF COUNSEL FOR THE SEVILLE GROUP AT TRIAL oe RX N n R A W O N N N N N N N N N N e e m m em pm p m em N S A nt RA W N = O O R R W N = Oo 28 Collins Collins Muir + Stewart LLp 1100 El Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 contends, to allow a named party in a proceeding to cross-examine witnesses and make arguments to the jury in the opening and closing of trial. The only unreasonable or unfair result would be preventing SGI from fully participating at Phase 1 of trial. V. CONCLUSION SGI is a named party to the operative pleading under which Phase 1 of trial will proceed. SGI is an intended beneficiary of the Settlement Agreement which Phase 1 of trial will concern. SGI is a direct party in interest and has standing. Accordingly, SGI must be allowed to fully participate in Phase 1 of trial to adequately protect its rights. DATED: February 4, 2015 COLLINS COLLINS MUIR + STEWART LLP FL) Brian K. Stewart Christian E. Bredeson Attorneys for Cross-Defendant, THE SEVILLE GROUP, INC. 18349 4 SGI’S REPLY TO HAR’S OPPOSITION TO SGI’S MOTION IN LIMINE NO 2. RE: PARTICIPATION OF COUNSEL FOR THE SEVILLE GROUP AT TRIAL PROOF OF SERVICE (CCP g§ 1013(a) and 2015.5; FRCP 5) State of California, ) ss. County of Los Angeles. ) I am employed in the County of Los Angeles. I am over the age of 18 and not a party to the within action; my business address is 1100 EI Centro Street, South Pasadena, California 91030. On this date, | served the foregoing document described as Reply Brief in Support of SGI’s Motion in Limine No. 2 re: Participation of Counsel for SGI at Trial on the interested parties in this action by placing same in a sealed envelope, addressed as follows: SEE ATTACHED SERVICE LIST [J (BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in South Pasadena, California to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at South Pasadena, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [J (BY CERTIFIED MAIL) - I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in South Pasadena, California. [J BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY IH (BY ELECTRONIC FILING AND/OR SERVICE) - [ served a true copy, with all exhibits, electronically on designated recipients listed on the attached Service List on: 2 / 4 / Acle (Date) at S$” 1 1S pm (Time) 7 T [J] FEDERAL EXPRESS - | caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. [J (BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (626) 243-1100 indicated all pages were transmitted. [0 (BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s). Executed on Click "Once" and Type "DATE" here at South Pasadena, California. XI (STATE) - I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [J (FEDERAL) - I declare that I am employed in the office of a member of the bat of this court? whose dire e service was made. t 7 Tyler B. Thomp£6n Z = tthompson@ccmslaw.cq HAR CONSTRUCTION v SWEETWATER UNION HIGH SCHOOL DISTRICT Case No.: 37-2011-00078945-CU-BC-SC File No.: 18349 SERVICE LIST P. Randolph Finch, Jr., Esq. Louis J. Blum, Esq. Kelly A. Floyd, Esq. FINCH, THORNTON & BAIRD, LLP 4747 Executive Dr., Suite 700 San Diego, CA 92121 (858) 737-3100 - FAX: (858) 737-3101 pfinch@ftblaw.com Iblum@ftblaw.com kfloyd@ftblaw.com ATTORNEY FOR PLAINTIFF/CROSS-DEFENDANT HAR CONSTRUCTION, INC. John S. Moot, Esq. Kevin T. Cauley, Esq. Lana U. Sheshina, Esq. Allison Haraguchi SCHWARTZ SEMERDIJIAN CAULEY & MOOT LLP 101 W. Broadway, Suite 810 San Diego, CA 92101 (619) 236-8821 - FAX: (619) 236-8827 johnm(@sscmlegal.com kevin@sscmlegal.com lana@sscmlegal.com Allison@sscmlegal.com ATTORNEYS FOR DEFENDANT/CROSS- COMPLAINANT SWEETWATER UNION HIGH SCHOOL DISTRICT William J. Peters, Esq. GORDON & REES, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 (415) 875-3145 (direct); (415) 986-5900 Fax: (415) 986-8054 wpeters@gordonrees.com ATTORNEYS FOR BUNTON CLIFFORD ASSOCIATES Andrew E. Berman, Esq. MASSIE BERMAN, APC 3588 Fourth Ave., Suite 200 San Diego, CA 92103 (619) 260-9010 - FAX: (619) 260-9016 aberman(@massieberman.com ATTORNEYS FOR PLAINTIFF HAR CONSTRUCTION, INC. John J. Kendrick, Jr., Esq. Allison S. Carcelli, Esq. KENDRICK, JACKSON & KEARL 2603 Main Street, Suite 700 Irvine, CA 92614 (949) 261-6440 - FAX: (949) 261-5758 jkendrick@kjklawyers.com ATTORNEYS FOR LPA, INC. Christian D. Humphreys, Esq. Jae K. Park, Esq. DENTONS US LLP 4435 Eastgate Mall, Suite 400 San Diego, CA 92121 (619) 595-5400 FAX: (619) 595-5450 Chris.humphreys(@dentons.com jae.park@dentons.com ATTORNEYS FOR CROSS-DEFENDANT/CROSS- COMPLAINANT, GILBANE BUILDING COMPANY