1 JON B. ZIMMERMAN [SBN. 112281] 2 3 4 5 7 ORDER NO. 1 · documents to the Depository. The Party...

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976197 [PROPOSED] CASE MANAGEMENT ORDER NO. 1

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JON B. ZIMMERMAN [SBN. 112281] GREGORY B. COHEN [SBN. 225510] ROBINSON & WOOD, INC. 227 N 1st Street San Jose, California 95113 Telephone: (408) 298-7120 Facsimile: (408) 298-0477 Attorneys for Plaintiff, CILKER APARTMENTS, LLC

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

CILKER APARTMENTS, LLC,

Plaintiff, vs. WESTERN NATIONAL CONSTRUCTION, MCLARLAND, VARQUEZ & PARTNERS, GROUP M ENGINEERS, GENTRY ASSOCIATES CONSTRUCTION CONSULTANTS, LARCO INDUSTRIES, FITCH PLASTERING, COURTNEY WATERPROOFING, CELL CRETE, LOS NIETOS CONSTRUCTION, MADERA FRAMING, KELLY DOOR, TARA COATINGS, LDI, and DOES 1-100, inclusive,

Defendant.

Case No. 113CV258281 [PROPOSED] CASE MANAGEMENT ORDER NO. 1

Pursuant to the stipulation of the parties in this Action, and GOOD CAUSE APPEARING,

IT IS HEREBY ORDERED:

1. APPOINTMENT OF SPECIAL MASTER AND DISCOVERY REFEREE

Due to the number of parties and complexity of the Litigation, and anticipated discovery

and pre-trial proceedings as a result, the parties agree that a Special Master and Discovery Referee

should be appointed to assist the parties pursuant to Code of Civil Procedure §639. Gerald

Kurland, Esq., shall serve as Special Master and Discovery Referee for this case. The

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976197 2 [PROPOSED] CASE MANAGEMENT ORDER NO. 1

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appointment of a mediator is deferred and the parties are ordered to meet and confer on the

selection of a mediator. The Court reserves its ruling on the proposed selection of Mr. Kurland as

both mediator and Special Master/Discovery Referee in the event that the parties are unable to

agree on the selection of a mediator.

2. SCOPE OF ORDER

This Case Management Order Number One (1), as may be modified and supplemented by

further agreement of all the parties, or the order of the Court, as set forth herein, shall govern all

further pleadings, discovery and settlement matters in this action. The Special Master shall not be

responsible for hearing or determining demurrers, summary judgments or motions for dismissal.

The Special Master shall have authority to resolve all discovery disputes and may order further

discovery on the Special Master’s own motion for good cause shown. The parties agree, unless

they choose to opt-out, to attend mediation. Additionally, the Court may also order the parties to

attend Mandatory Settlement Conferences, if necessary.

3. SERVICE OF THIS ORDER

A copy of this Order, and any subsequent amendments hereto, shall be served with the

Complaint and any Cross-Complaint bringing in a new Party, whereupon each Order shall bind

such newly appearing Party unless the Court grants the Party relief therefrom upon noticed motion

for good cause shown. Any such motion shall be filed and served within ten (10) days from

service of this Case Management Order on the new Party, unless the Court permits a later filing.

Failure to comply with this paragraph may result in a finding of invalid service, at the discretion of

the Court, or upon motion to the Special Master.

4. METHODS AND TIMING OF SERVICE

This case is subject to electronic service pursuant to the Court’s procedures and

requirements. A Party may designate multiple persons (e.g., attorneys, paralegals, secretaries,

calendaring clerks, etc.) to be included on the service list for proper service via email per the

Court's guidelines. Service of all papers shall be deemed effective according to the time periods

set forth in California Code of Civil Procedure §§1010.6 and 1013.

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5. SUMMARY OF DATES

A CMO timeline containing relevant dates and deadlines is attached as Exhibit “A”

(“CMO Timeline”). To the extent any date in the CMO Timeline is different than a date provided

in the body of this CMO, the CMO Timeline shall control.

6. NOTICE OF APPEARANCE AND PLEADINGS

a) Each new party may file with the Court a written Notice of Appearance in lieu of

answer and contemporaneously serve all counsel of record, the Special Master and the Document

Depository, as shown on the most current service list available from Plaintiff. Such notice shall

identify with specificity the name, address, telephone, facsimile numbers and email address of

counsel for each party and shall identify with specificity each party which counsel purports to

represent. It shall be the responsibility of counsel for Plaintiff to provide counsel for Defendants

and Cross-Defendants with updated service lists. Such notice may state the appearing party’s

affirmative decision and election to “opt in” to the cross-complaint deemed by this Order to have

been asserted as provided herein.

b) Upon appearing in the action via Notice of Appearance, which includes that party's

affirmative decision and election to "opt-in" to the deemed cross-complaint provided for by this

Order, it shall hereafter be deemed as to the party that:

1. All allegations of the Complaint, and all existing and future cross-

complaints, are generally denied by the party;

2. All affirmative defenses to the complaint, and to all existing and future

cross-complaints, listed in Exhibit "B" attached hereto, are deemed raised by the party;

3. The party has filed and served its own cross-complaint stating causes of

action for implied equitable indemnity, contribution and comparative negligence against all other

Defendant and Cross-Defendant parties, but excluding Plaintiff CILKER APARTMENTS, LLC

("Plaintiff"). If a party desires to name Plaintiff as a Cross-Defendant in the action, that party

shall specifically state that intention in its Notice of Appearance. Plaintiff shall thereafter have all

of the protections and defenses set forth in this Paragraph 5 or incorporated herein including, but

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977589 4[PROPOSED] CASE MANAGEMENT ORDER NO. 1

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not limited to the fact that Plaintiff shall be deemed to have denied all of the allegations of said

Cross-Complaint and alleged all special and affirmative defenses set forth herein.

4. All allegations of the party's deemed cross-complaint are generally denied

by all cross-defendants;

5. All affirmative defenses listed in Exhibit "B" attached hereto are deemed

raised by all cross-defendants;

c) Each party appearing in the capacity of a cross defendant (or third party defendant,

as defined in CCP 428.70) in response to a cross complainant’s (or third party plaintiff’s, as that

term is defined in CCP 428.70) cross complaint, whether by way of answer or notice of

appearance, is deemed to have filed a special answer as provided for by CCP 428.70. The special

answer thus deemed to have been filed will be considered to have asserted all those defenses

asserted by the cross complainant/third party plaintiff in its response to the claims against it.

Assertion of additional defenses beyond those thus pled may be made by way of pleadings

consistent with the procedures set forth in the Code of Civil Procedure.

d) Parties wishing to file pleadings for additional affirmative claims will not be

precluded from filing a pleading at a later date upon good cause shown.

(e) Nothing in this Order shall affect the requirements for filing of Attorney's Certificates

as set forth in California Code of Civil Procedure section 411.35.

(f) Dismissal of the Complaint by Plaintiff as to any defendant during pendency of the

litigation shall not affect claims for indemnity deemed filed by Cross-Complainants; however, any

party intending to pursue such claims against that dismissed party shall, within fifteen (15) days of

receipt of such notice of dismissal, notify all parties in writing of such intention. Absent notification,

any party so dismissed may be removed from the service list.

7. DISCOVERY

(a) Document Depository

A Document Depository shall be established at the offices of:

Aiken & Welch 111 N. Market Street, Suite 300 San Jose, California 95113

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Phone: (877) 451-1580

(b) Written Discovery and Required Responses

Each Party shall be required to respond to written discovery as set forth below:

(i) Production and Deposit of Documents

The term “document” shall have the same meaning as the term “writing,” as defined in

Evidence Code section 250, and is meant to be all-inclusive. Each Defendant and Cross-defendant

shall within thirty (30) days after the date of service of this Order, and any new Party shall within

forty-five (45) days after the Party’s first appearance, produce to the Depository all non-

privileged, non-protected documents, including color documents, relating to the real property and

improvements known as The One Pearl Place Apartment Complex, located in San Jose, California

(“Subject Property”), as described below in Exhibit “C.” Within thirty (30) days of the entry of

this Order, Plaintiff shall produce to the Depository all non-privileged, non-protected documents,

including color documents, relating to the Subject Property as described in Exhibit “D.”

To the extent a Party has oversized documents, the Party may deposit either the documents

or an index of all oversized documents that it has in its possession. Upon reasonable notice, such

oversized documents shall be made available for review and copying at the request and expense of

any Party.

In lieu of or in addition to depositing hard copies of the documents to the Depository, any

Party may submit, on a disc or any other electronic medium, electronic renderings of its

documents to the Depository. The Party depositing electronic renderings shall do so by either (a)

scanning paper documents into .tiff, .jpg or .pdf image files or (b) rendering “native” computer

files (including CAD drawings, word-processing documents, spreadsheets, scheduling graphs,

etc.) into .tiff, .jpg or .pdf images. Each image file shall be branded or embossed with a unique

Bates Number. The scanning or rendering shall create an image with resolution of at least 300 dpi

and standard compression.

As to electronic mail messages and attachments not produced in hard copy,

notwithstanding the format of the production, the Parties shall maintain original native email files

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and shall not alter any data or metadata contained in those original native files. Upon reasonable

written request, any Party may inspect the original native files representing any email messages.

If any Party discovers additional documents (other than documents received from the

Depository itself), they shall be deposited within thirty (30) days of the Party’s discovery of the

additional documents. Further, any and all pleadings, including discovery, shall be deposited by

the Party preparing said pleading. In the case of previously served discovery, the propounding

Party shall deposit its propounded discovery, while the Party responding thereto shall deposit a

copy of its response.

The parties hereto are under an ongoing duty to investigate, search, locate and deposit any

documents in the Party’s custody or control which are required to be produced in accordance with

this section. The depositing Party shall give notice to all parties whenever it deposits documents

along with a notice of deposit and an index that identifies the documents being deposited with

reasonable particularity.

(c) Copying and Indexing

The depositing Party shall copy the documents, number each page, and index the

documents. Each document’s number shall be preceded by a unique three-letter code identifying

the depositing Party, the code for each Party to be established by the Depository. All Parties agree

to maintain the original documents in their possession and deposit copies to the Depository

(i) Notice of Compliance. Each Party shall promptly serve on

all parties a Notice of Compliance attaching an index of documents deposited and

indicating the date the documents were deposited.

(ii) Privileged and Protected Documents. Any Party

withholding any document(s) on grounds of privilege or other protection shall deposit in

the Document Depository and serve upon all parties a log listing the author, all recipients,

the date, a description of the document(s), and the privilege claimed.

(iii) Inspection of Originals. For reasonable cause, any Party

may request an opportunity to view the originals of any document in the Depository.

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After a reasonable attempt at resolution, any Party may make a motion for an opportunity

to view originals, for good cause shown.

(iv) Costs. Each Party depositing documents shall bear its own

fees and costs associated with said deposit.

(v) Motions. Any Party may bring a motion to limit or compel

the production and deposit of documents.

(vi) Requests for Prior Pleadings. Given that all prior pleadings,

including discovery, are to be deposited into the Document Depository based on the terms

of this order, separate Requests for Prior Pleadings to any and all parties are not

necessary.

(vii) Each Party’s responses to the document requests shall be

accompanied by a verification signed under oath by the responding Party.

(d) Statement of Work

Each Defendant and/or Cross-defendant shall, within thirty (30) days of the date of service

of this Order, and each new Party shall, within forty-five (45) days after the Party’s first

appearance, serve on all parties and deposit into the Document Depository a Statement of Work in

the form attached as Exhibit “E” which describes in detail the work it performed and/or its

involvement in any construction at the Subject Property. The Statement of Work shall be

accompanied by a verification signed under oath by the responding Party.

Any Party may bring a motion to limit or compel responses to the Statement of Work.

(e) Statement of Insurance

Each Defendant and/or Cross-defendant shall, within thirty (30) days of the date of service

of this Order, and each new Party shall, within forty-five (45) days after the Party’s first

appearance, complete and serve on all parties and deposit into the Document Depository a

Statement of Insurance in the form attached as Exhibit “F” which identifies all primary, excess,

umbrella, general liability, builder’s risk, course of construction and/or difference in conditions

insurance carriers which the Defendant and/or Cross-defendant has maintained since January

2000. The Statement of Insurance shall be accompanied by a verification signed under oath by the

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responding Party. If the Defendant or Cross-defendant is unable to provide the current remaining

limits on any insurance policy identified in the Statement of Insurance, they must fill out the

written consent for information attached hereto as Exhibit “F-1.”

(f) Protective Orders

As permitted by California law, a Party may seek a protective order at any time with

respect to any particular discovery.

(g) Discovery Stay

All discovery not expressly identified in this Order is stayed. Notwithstanding the

foregoing, upon notice to all parties, a Party may conduct discovery as to any individual or entity

not a party to this Litigation. Any Party that obtains documents from a third party by way of a

subpoena duces tecum or otherwise shall deposit those documents in the Depository at that Party’s

own expense. Upon a showing of good cause, any Party may apply to the Special Master for an

Order allowing additional discovery from another Party. Upon a showing of good cause, any Party

may seek an order from the Special Master limiting discovery propounded on it by another Party.

8. PLAINTIFF’S PRELIMINARY STATEMENT OF CLAIM/REPAIRS

In accordance with the CMO Timeline, Plaintiff shall serve upon the Special Master, all

counsel, and the Document Depository a Preliminary Statement of Claims and Cost of Repair

(hereinafter "Preliminary Statement of Claims"). This Preliminary Statement of Claims shall set

forth (i) all of Plaintiff’s claims and damages; and (ii) a preliminary Cost of Repair. This

Statement of Claims will be preliminary, not final, and Plaintiff shall not be limited at the time of

trial to the claims set forth therein. The Preliminary Statement of Claims is mediation and work

product privileged, confidential, and protected by the terms of this CMO and Evidence Code

sections 703.5, 1115-1128, and 1152-1160, and shall be inadmissible. It cannot be used by the

defense for any purpose connected with discovery or trial and cannot be commented on if its

content changes before the deposition of the generator of the report. This Order extends to

amended or supplemental defect lists and/or reports provided to the defense before expert

discovery is open. However, upon a showing of good cause to the Special Master, the protections

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applicable to the Preliminary Statement of Claim can be set aside for the limited purposes of using

this document in support of, or in opposition to, motions for good faith determination.

9. FURTHER INVASIVE TESTING BY PLAINTIFF

Plaintiff shall have the right to conduct additional and further destructive or invasive

testing and inspection. However, Notice of such testing shall be served at least twenty-one (21)

days before any such testing occurs, unless a shorter time is ordered by the Special Master. All

parties, their attorneys, and/or consultants may attend and observe the invasive testing with

limitations only as may be reasonably required by the type of testing being conducted. Such

observation shall include the taking of photographs of the testing as it is being done. All parties

are under a duty to cooperate with one another to minimize interference with the testing.

The Release and Hold Harmless agreements authorized by the court for Plaintiff's August

2014 testing shall be signed by all defendant/cross-defendant parties, consultants and attorneys

who desire to attend any future testing and/or inspection.

10. PLAINTIFF'S REPAIR OF THE PROPERTY

Plaintiff has the right to perform repairs to the Property and nothing in this CMO is

intended to limit this right. However, if major repairs are to occur involving building components

at issue in this litigation, Plaintiff shall give a minimum of ten (10) days written notice to all

counsel of the same. This restriction is not intended to limit, and does not apply to, ongoing

maintenance of the buildings.

11. PLAINTIFF’S EXPERT PRESENTATION OF CLAIMS

In accordance with the CMO Timeline, Plaintiff shall conduct an expert presentation of its

claims at the offices of Robinson & Wood, Inc.

12. DEFENSE EXPERT MEETING

In accordance with the CMO Timeline, a defense expert meeting shall take place at the

Depository.

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13. DEFENDANTS' PRELIMINARY RESPONSE TO PLAINTIFF’S PRELIMINARY STATEMENT OF CLAIMS/REPAIRS

The requirement for the Defense to produce a Preliminary Response to Plaintiff's

Preliminary Statement of Claim will be deferred to the consideration of the Special Master.

14. DEADLINE TO BRING IN NEW PARTIES

On a date to be determined by the Special Master, no new parties may be added to this

proceeding, whether by amendment, substitution, or cure of default, , except by order of the

Special Master and approved by the court where such an order is necessary.

15. MEDIATION

(a) Mediation Protocol

In accordance with the CMO Timeline, Mediation of this proceeding shall be conducted by

a mediator to be appointed by the Court or agreed to by the parties. The mediation process is to be

considered a voluntary mediated settlement negotiation for the purposes of all state and federal

rules protecting disclosures made during such conferences from later discovery or use in evidence.

The applicable confidentiality provisions expressly survive termination of this Stipulation and

CMO, as well as the mediation contemplated hereby. Unless otherwise directed by the Mediator,

the mediation shall be held in San Jose, California.

(b) Mediator Fees

The fees of the Mediator shall be borne in the following manner: 1/3 to be paid by Plaintiff

CILKER APARTMENTS, LLC; 1/3 to be paid by Defendant and Cross-Complainant WESTERN

NATIONAL CONSTRUCTION, INC.; and 1/3 to be paid by the remainder of the Cross-

Defendants participating in mediation. However, and upon a showing of good cause to the Special

Master, the allocation of fees may be adjusted depending on the participants required at mediation.

Those not requested to attend a Mediation session will not be required to share in the Mediator's

fee for that particular Mediation session.

(c) Privileges

Subject to the other terms of this CMO, all mediation-related activities (including but not

limited to exchanges of documents and information, discussions, documents prepared for

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mediation, etc.) are privileged, confidential, and protected by the terms of this CMO and Evidence

Code sections 703.5, 1115-1128, and 1152-1160, and shall be inadmissible, unless the privilege is

waived or the information is used (by the Party or Party otherwise entitled to assert the protection)

in a manner contrary to maintaining the privilege according to statute and case law. The Parties

agree that the mediation is confidential, and no stenographic or other official record shall be made

except to memorialize a settlement. Except as set forth herein, all statements, admissions,

writings, promises and offers, made for the purpose of, in the course of, or pursuant to the

mediation or mediation consultation by any person (including any Party, Party’s agent, employee,

attorney, expert, consultant, mediator or other non-party) are to be considered confidential and

privileged. Likewise, all conduct, views and opinions, oral or written, made for the purpose of, in

the course of, or pursuant to the mediation or mediation consultation by any person (including any

Party, Party’s agent, employee, attorney, expert, consultant, Mediator or other non-party) are to be

considered confidential and privileged. Such conduct, statements, admissions, writings, promises,

offers, views and opinions shall not be subject to discovery or be admissible for any purpose,

including impeachment, in any arbitration, litigation or other proceeding involving the Parties.

Notwithstanding the foregoing, evidence otherwise admissible or subject to discovery is

not excluded from discovery or admission in evidence simply as a result of it having been used in

connection with mediation. These confidentiality provisions expressly survive termination of this

CMO and the Mediation contemplated hereby.

(d) Participants in Mediation

The Parties agree that, besides counsel, a representative of each Party with full settlement

authority will be present, unless authorized to be available by telephone by the mediator, at all

mediation conferences at which the Mediator is present. In addition, a representative of each

Party’s insurer(s) shall be present, unless authorized to be available by telephone by the mediator,

at all mediation conferences at which the Mediator is present. In addition, each Party may bring

additional persons as needed to respond to questions, contribute information and participate in the

mediation.

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(e) Consultant Status

Participation by the Parties’ consultants in the mediation shall not render these consultants

“experts” for purposes of this or any later litigation, and work product of or attorney

communication with such consultants at mediation shall not at any time become discoverable in

litigation as a result of any consultant’s participation in the mediation.

16. PERSONS MOST KNOWLEDGEABLE AND EXPERT WITNESSES DISCLOSURES.

The disclosures of Persons Most Knowledgeable and Expert Witnesses will be made on or

before a date to be determined by the Special Master.

17. DEPOSITIONS

On or before a date to be determined by the Special Master, the parties shall meet and

confer to set the schedule for the depositions of Persons Most Knowledgeable, Third-Party

Witnesses and Expert Witnesses.

18. EXPERT FILES

On or before a date to be determined by the Special Master, the parties shall deposit a full,

complete and Bates stamped copy of each designated expert's file.

19. DEFENSE INVASIVE TESTING AND INSPECTION

In accordance with the CMO Timeline, all Defense invasive testing and inspections shall

be completed. Any and all requests for Defense invasive testing and inspection shall be served

upon all parties at least fourteen (14) days before any such testing. Those Defendants and/or

Cross-defendants engaging in invasive testing or inspections shall bear the cost of said testing. All

parties, their attorneys, and/or consultants may attend the invasive testing without expense. If any

Party, through its representatives or otherwise, alters, delays or directs any invasive testing or

inspections, that Party will be required to share in the cost of the particular testing or inspection on

a pro rata basis. Parties may observe all invasive testing and inspection without incurring any

costs. Such observation shall include the taking of photographs of the testing and inspection as it

is being done, but all parties are under a duty to cooperate with one another to minimize

interference and inconvenience. However, any Party who participates in invasive testing or

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inspection by sampling or by causing additional removal of construction material shall bear a pro-

rata share of the costs of conducting such testing or inspection. Upon motion by any Party to the

Special Master, the Special Master may order an appropriate allocation or re-allocation of the

costs of invasive testing or inspection. Said testing shall be coordinated with Plaintiff to minimize

disruption of residents. All openings and test locations shall be fully restored to their pre-opening

condition no later than 24 hours after completion of the invasive testing to the satisfaction of

Plaintiff's on site property manager.

All contractors or other entities involved in the invasive testing shall be licensed, bonded,

and fully insured, and shall add Plaintiff, its managers, agents, representatives, counsel and related

entities as additional insureds under its/their general liability insurance policies in a form and

amount as approved by Plaintiff. A full release, defense and hold harmless agreement in favor of

Plaintiff and its agents and representatives of exact form to be determined by agreement or

decision of the Special Master shall be signed by each defendant/cross-defendant, and their

representatives and consultants, who perform, direct and/or take part in defendants' testing and/or

inspection.

The Release and Hold Harmless agreements authorized by the court for Plaintiff's August

2014 testing shall be signed by all defendant/cross-defendant parties, consultants and attorneys

who desire to attend to observe any defense testing and/or inspection.

20. PRIVILEGES AS TO DISCUSSIONS AND MEETINGS

After the Preliminary Statement of Claims, and Defendant's Preliminary Response to

Statement of Claims thereto are exchanged, the parties will meet and confer with the Special

Master to determine what additional information is needed for an effective mediation. At that

time, the Special Master will make orders appropriate thereto and schedule a mediation.

All parties to this action agree that all information and Preliminary Statements of Claims

and Responses thereto exchanged by the parties, their counsel, or consultants, during any

meetings, site inspections, or otherwise, with the exception of the document production pursuant

to this order, other formal discovery approved by the Special Master, and with the exception of

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discovery to non-parties, is for settlement purposes only, and is protected by the provisions of

Evidence Code Sections 1115-1128, 1152.

Specifically, Evidence Code Section 1119 provides:

(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other non-criminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or mediation consultation, is admissible or subject to discovery and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other non-criminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation, shall remain confidential.

Further, Evidence Code Section 1120 provides:

(a) Evidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or mediation consultation.

(b) This chapter does not limit any of the following:

(1) The admissibility of an agreement to mediate a dispute.

(2) The effect of an agreement not to take a default or an agreement to extend the time within which to act or refrain from acting in a pending civil action.

(3) Disclosure of the mere fact that a mediator has served, is serving, will serve, or was contacted about serving as a mediator in the dispute.

The parties are fully aware and understand the effects of Evidence Code Section 1121

which states as follows:

Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning the mediation conducted by the mediator, other than a report that is mandated by

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court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally in accordance with Section 1118.

In accordance with Evidence Code Section 1121, the parties expressly agree and authorize

the Special Master to provide reports, assessments, evaluations, recommendations, and findings to

the Court regarding the discovery process and settlement posture of the parties in this case.

The parties are fully aware and understand the effects of Evidence Code Section 1127 which states in applicable part: If a person subpoenas or otherwise seeks to compel a mediator to testify or produce a writing, as defined in Section 250, and the court or other adjudicative body determines that the testimony or writing in inadmissible under this chapter, or protected from disclosure under his chapter, the court or adjudicative body making the determination shall award reasonable attorney’s fees and costs to the mediator against the person seeking the testimony or writing.

21. DISCOVERY CUT-OFF

On or before a date to be determined by the Special Master, and after the parties have

had sufficient time to complete necessary discovery, all discovery, including expert witness

discovery, will be cut-off. The parties may agree by stipulation to extend the discovery cut off.

Further, upon motion by any Party to the Special Master, the Special Master may order or permit

discovery to take place after the date initially determined by the Special Master. In determining

whether to permit discovery after the date selected, the Special Master shall consider the factors

set forth in CCP 2024.050(b).

22. ADDITIONAL DISCOVERY METHODS

All parties shall retain the right to move the Special Master for leave to demand additional

methods of discovery not contemplated by this Case Management Order.

23. TRIAL

The Court will set a trial readiness conference date on dates to be determined as

recommended by the Special Master.

24. EX PARTE ORDERS

All applications to the Special Master for Ex Parte Orders require twenty-four (24) hour

fax or electronic mail notice to all parties affected by the motion, as well as to the Special Master.

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Dated: December ___, 2014 WAIT & COLFER

By:

ROBERT A. HUFNAGEL

Attorneys for Defendant and Cross-Defendant,

TARA COATINGS, INC.

APPROVED AND RECOMMENDED:

DATED: _______________, 2014

SPECIAL MASTER

IT IS SO ORDERED:

DATED: _______________, 2014

JUDGE OF THE SUPERIOR COURT

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EXHIBIT “A”

CMO TIMELINE

Case Agenda Deadlines

Initial Deposit of Documents (Exhibits B and C) with Verified Notice of Same

Within 30 days from entry of CMO or 45 days of initial appearance of Responding Party

Deposit of Statement of Work and Statement of Insurance (Exhibits D and E)

Within 30 days from entry of CMO or 45 days of initial appearance of Responding Party

Last day to supplement document deposit Within 30 days following discovery of additional documents

Deposit of Plaintiff's Preliminary Statement of Claims and Cost of Repair

TBD

Plaintiff's Expert Presentation of Claims TBD

Defense Site Inspections TBD

Defense Request for Invasive Testing TBD, but at least 14 days before invasive testing

Defense Expert Meeting TBD

Defense Invasive Testing TBD

Deposit of Defense Response to Plaintiff's Preliminary Statement of Claims and Cost of Repair

TBD

First Mediation TBD

Last Day to Add New Parties TBD

Second Mediation TBD

PMK and Expert Witness Designations TBD

Third Mediation TBD

Supplemental Expert Witness Designations TBD

Meet and Confer Re: PMK and Expert Witness Deposition Schedule

TBD

PMK Depositions Begin TBD

Deposit of Expert Information TBD

Expert Depositions Begin TBD

Trial Readiness Conference TBD

Trial Date TBD

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EXHIBIT "B" AFFIRMATIVE DEFENSES

The following separate, affirmative defenses, are alleged to the Complaint and to the Cross-

Complaint and to each Cause of Action thereof:

1. NO CAUSE OF ACTION STATED. The Complaint and Cross-Complaint do not state

facts sufficient to constitute a cause of action against this answering defendant.

2. COMPARATIVE NEGLIGENCE. The plaintiff's or cross-complainant's own

carelessness and negligence may have proximately contributed to the events and damages complained of,

if any there were, and, if so, either bars or proportionately reduces any potential recovery to said plaintiff

or cross-complainant.

3. ASSUMPTION OF RISK. The plaintiff or cross-complainant may have assumed the

risk, if any there was, in connection with the matters referred to in the pleading, and recovery is therefore

barred or proportionately reduced to the extent of such assumption.

4. STATUTE OF LIMITATIONS. Each cause of action is barred by the applicable statute

of limitations, including, without limitation, California Code of Civil Procedure sections 318, 337.1,

337.15, 338(2), 338(3), 338(4), 339, 340, and/or 343 and Uniform Commercial Code sections 2607(3)(a)

and 2725.

5. ALTERATION OF PRODUCT. The plaintiff or cross-complainant or others may have

altered the product involved, proximately causing the events and damages, if any there were, and

recovery is therefore barred or proportionately reduced accordingly.

6. MISUSE OF PRODUCT. The plaintiff or cross-complainant or others may have

improperly used or improperly maintained the product involved herein, proximately causing the events

and damages, if any there were, and recovery is therefore barred or proportionally reduced accordingly.

7. NO PRIVITY. The plaintiff or cross-complainant is barred from recovery for

breach of warranty because of lack of privity.

8. FAILURE TO MITIGATE DAMAGES. The plaintiff or cross-complainant has

failed or neglected to use reasonable care for protection and to minimize the losses and damages, if any

there were, and recovery is therefore barred or proportionately reduced accordingly.

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9. CONDUCT OF OTHERS. The injuries and damages of which plaintiff or cross-

complainant complains, if any there were, may have been proximately caused by the conduct of parties

other than this answering defendant, and recovery is therefore barred or proportionately reduced

accordingly.

10. UNIFORM COMMERCIAL CODE. The claims of plaintiff or cross-complainant

are barred by the following provisions of the Uniform Commercial Code: §§ 12-1(25)(c), 2510, 2513(1)

and (3), 2601, 2605(1)(a) and (b), 2606(1)(a) and (b), 2607, 2715(2)(a) and 2719(3).

11. NOTICE OF BREACH OF WARRANTY. The plaintiff or cross-complainant failed to

make demand or to give timely and proper notice of breach of warranty.

12. ACTIVE AND PASSIVE CONDUCT. If it is determined that this answering

defendant was negligent, said negligence was secondary and passive, as contrasted with the active and

primary negligence of other parties to this lawsuit, and therefore, plaintiff or cross-complainant is not, as

a matter of law, entitled to recovery from this answering defendant on any theory of indemnity.

13. APPORTIONMENT. If the matters and damages alleged in the Complaint were

proximately caused by the conduct of more than one party, any recovery must be apportioned as to the

fault of each party.

14. LACHES. The plaintiff or cross-complainant may have known, or should have

known, of the matters alleged herein for an unreasonably long period of time prior to commencement of

this litigation, and did not give notice to this answering defendant, and is therefore barred by California

Commercial Code section 2607 and by similar provisions of statutory and common law.

15. SPOILATION OF EVIDENCE. The plaintiff or cross-complainant, either

intentionally or negligently, has failed to preserve the primary evidence relevant to this litigation, thus

failing to give this answering defendant an opportunity to inspect said evidence, thereby severely

damaging and prejudicing a defense. Plaintiff or cross-complainant, therefore, should be barred from

introducing secondary or lesser evidence, and any recovery should be diminished accordingly.

16. EQUITABLE INDEMNITY. The principals of comparative equitable indemnity

should be applied by the Court where appropriate, despite the absence of Cross-Complaints specifically

requesting same.

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17. DOCTRINE OF UNCLEAN HANDS. The plaintiff and cross-complainants are barred

by virtue of conduct causing the alleged damages, under the doctrine of unclean hands.

18. NO SPECIAL RELATIONSHIP. No relationship existed between plaintiff and cross-

complainant and this answering defendant which would give rise to indemnity.

19. WAIVER. Plaintiff's or cross-complainant's actions are barred by the doctrine of

waiver; therefore, the defense of estoppel applies.

20. ESTOPPEL. The plaintiff or cross-complainant is estopped from recovery by virtue of

acts of directing, ordering, approving or ratifying the matters complained of herein.

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EXHIBIT “C”

DOCUMENTS TO BE DEPOSITED BY DEFENDANTS AND/OR CROSS-DEFENDANTS

Within the time frame set forth in the CMO, each and every Defendant and Cross-

defendant is required to produce to the Depository, all relevant, non-privileged, non-protected

documents in its possession in the following categories:

1. Any and all non-privileged job files, building contracts, agreements, notes,

correspondence, photographs, videotapes, digital storage media, diagrams, architectural plans,

structural plans, rough and precise grading plans, and any other building plans relating to the

subject properties (including any amendments to such plans), specifications, shop drawings, “as-

built” plans, calculations, journals, invoices, purchase orders, change orders, addenda reports

(including reports prepared by consultants and design professionals for the original construction),

job diaries, receipts, project files, test data, site records, daily job logs, field orders, superintendent

reports, requests for clarification, requests for information, time cards, governmental inspection

punch lists and sign off sheets, invoices, plans, maps, blueprints, or specifications relating to the

construction, repair, or maintenance of the Subject Property.

2. Any and all documents consisting of, relating to or referring to insurance coverage,

as permitted pursuant to Code of Civil Procedure §2017.210.

3. Any and all contract proposals, contracts, agreements, invoices, purchase orders,

change orders, addenda, diaries, and other writings related to any and all repairs and all alterations,

modifications, and/or improvements which relate to the Subject Property.

4. Any and all purchase contracts, sales files, owner files, customer service files,

advertisement files, marketing documents, warranty claims and warranty documents which relate

to the Subject Property.

5. Any and all expert documents as required by this CMO.

6. Any and all documents subpoenaed from third parties as required by this CMO.

7. Any and all writings as defined by California Evidence Code section 250

(including but not limited to, email instant messages, facsimiles, post-it notes, and documents and

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spreadsheets stored on computer hard drives, floppy disk or other digital storage media), which

relate to any and all repairs, alterations, modifications, improvements, defects or deficiencies in

construction, whether alleged in Plaintiffs’ complaint or not.

8. Any and all documents consisting of or referring to non-privileged communications

between a Defendant and/or a Cross-defendant and anyone (including but not limited to Plaintiff

or Cross-defendants) relating to or referring to the Subject Property.

9. Thirty (30) days prior to any scheduled mediation session or mandatory settlement

conference, Defendant and Cross-Complainant WESTERN NATIONAL CONSTRUCTION,

INC., shall produce a statement of all fees and costs incurred as of that date which support its

claims for defense costs.

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EXHIBIT “D”

DOCUMENTS TO BE PRODUCED BY PLAINTIFF

Within the time frame set forth in the CMO, Plaintiff is required to produce to the

Depository all relevant, non-privileged, non-protected documents in its or its agents’ possession,

custody or control in the following categories:

1. All documents regarding original construction of the Subject Property including,

without limitation, all contracts, agreements, warranties, job files, lot files, plans, specifications,

vellums, blueprints, brown lines, notes, studies, memoranda, advertisements, correspondence,

photographs, videotapes, diagrams, drawings, calculations, invoices, purchase orders, change

orders, addenda, reports, journals, marketing documents, job diaries, receipts, accounting records,

building permits, punch lists, sign-off sheets, records of inspection or other writings relating to the

development, construction, or repair of the Subject Property.

2. All documents concerning alleged defects and damages at the Subject Property,

including, without limitation, complaints or correspondence between the Plaintiff and anyone else

concerning complaints, requests for repairs, etc., as to alleged defects, damages, and the like at

Subject Property;

3. Repair records, including all contracts, agreements, warranties, job files, unit files,

plans, specifications, vellums, blueprints, brown lines, notes, studies, memoranda, advertisements,

correspondence, photographs, videotapes, diagrams, drawings, calculations, invoices, purchase

orders, change orders, addenda, reports, journals, marketing documents, job diaries, receipts,

accounting records, building permits, punch lists, sign-off sheets, records of inspection or other

writings relating to the development, construction or repair of the Subject Property or other

writing relating to repairs;

4. All photographs and videotapes of the Subject Property, including, but not limited

to, photographs and videotapes of repairs or defects at the Subject Property;

5. All documents regarding any periodic inspection of the Subject Property;

6. All documents regarding any maintenance undertaken, completed, initiated or

otherwise contemplated at the Subject Property;

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7. All documents regarding incentives and concessions paid to tenants;

8. All documents regarding vacancy data and rental income for the time period

spanning two (2) years prior to the date losses are first claimed to have been incurred or will be

incurred up through the present date;

9. All expert documents as required by this Order or subsequent Case Management

Orders.

10. Any and all documents subpoenaed from third parties as required by this order.

11. Any and all writings as defined by California Evidence Code section 250

(including but not limited to, email instant messages, facsimiles, post-it notes, and documents and

spreadsheets stored on computer hard drives, floppy disk or other digital storage media), which

relate to any and all repairs, alterations, modifications, improvements, defects or deficiencies in

construction, whether alleged in Plaintiffs’ complaint or not.

12. Any and all plans, maps, blueprints, or specifications relating to the construction,

modification, maintenance or repair of the Subject Property.

13. Any and all documents consisting of or referring to non-privileged communications

between Plaintiff and anyone (including but not limited to Defendant or Cross-defendants) relating

to or referring to the Subject Property.

14. Thirty (30) days prior to any scheduled mediation session or mandatory settlement

conference, Plaintiff CILKER APARTMENTS, LLC, shall produce a statement of all fees and

costs incurred as of that date which support its claims for Stearman damages.

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EXHIBIT “E”

VERIFIED STATEMENT OF WORK

1. NAME OF PARTY:

2. NAME OF TRIAL ATTORNEY:

3. DESCRIPTION OF WORK PERFORMED:

4. LOCATION OF WORK PERFORMED (By Phase Number, Unit Number,

Building Number or Coordinates):

5. INCLUSIVE DATES BETWEEN WHICH WORK WAS PERFORMED:

6. IDENTITY OF EACH PERSON OR ENTITY WITH WHOM YOU

CONTRACTED TO PERFORM THE ABOVE-DESCRIBED WORK:

7. DID YOU SUPPLY MATERIALS?

If you supplied materials, describe all materials you provided:

8. IF YOU SUPPLIED MATERIALS, IDENTIFY THE PERSON OR ENTITY,

INCLUDING THE NAME, ADDRESS AND TELEPHONE NUMBER, FROM WHOM YOU

PURCHASED THE MATERIALS:

9. DID YOU SUBCONTRACT ANY OF THE WORK THAT WAS TO BE

PERFORMED BY YOU TO ANOTHER PERSON OR ENTITY?

10. IF YOU DID SUBCONTRACT ANY OF THE WORK TO ANOTHER,

IDENTIFY THE PERSON OR ENTITY, INCLUDING THE NAME, ADDRESS AND

TELEPHONE NUMBER TO WHOM YOU SUBCONTRACTED:

11. IF YOU DID SUBCONTRACT ANY OF THE WORK TO ANOTHER, WAS

THAT SUBCONTRACT IN WRITING?

12. IF THE SUBCONTRACT WAS IN WRITING, PLEASE IDENTIFY THE

CONTRACT(S) BY DATE, AND PRODUCE COPIES OF SAID CONTRACT(S).

Dated: ____________________________

______________________________ ___________________________________

CAPACITY OF SIGNATORY SIGNATURE

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EXHIBIT “F”

STATEMENT OF INSURANCE

For each primary, excess, umbrella, general liability, builder’s risk, course of construction

and/or difference in conditions insurance carriers which you have maintained since January 2000,

provide:

(a) The name and address of the carrier;

(b) The policy number;

(c) The type of policy;

(d) Effective dates of the policy;

(e) Original policy limits for each type of coverage;

(f) Identity of all named insureds relating to the Project;

(g) Identity of all additional insureds relating to the Project;

(h) Whether or not previous payments are known to have depleted some or all

coverage limits

(i) The amount of any deductible or self insured retention ("SIR") and whether the

deductible or SIR has been satisfied.

(j) Whether such carrier has been placed on notice of Plaintiff’s claim;

(k) Whether such carrier has issued a reservation of rights;

(l) The current remaining limit of insurance for each type of coverage.

(m) Whether such carrier is defending.

Western National Construction, Inc. will make the following information available no later

than two (2) weeks before any Mediation or Mandatory Settlement Conference:

(a) The number of accepted Additional Insured tenders;

(b) The name of the carriers who have accepted Additional Insured tenders;

(c) Fees and costs paid by Western National Construction.

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EXHIBIT “F-1”

CONSENT TO RELEASE OF CERTAIN INSURANCE DOCUMENTS AND INFORMATION

_______________________________ hereby expressly consents to the disclosure of, and

hereby directs its carriers to produce to counsel for Cilker Apartments, LLC, any and all primary,

excess, umbrella, general liability, builder’s risk, course of construction and/or difference in

conditions insurance policies maintained by it at any time since January 1, 2000.

______________________________ further consents to the disclosure of, and hereby

directs its carriers to produce to counsel for Cilker Apartments, LLC, the current remaining limits

of coverage on each and every primary, excess, umbrella, general liability, builder’s risk, course of

construction and/or difference in conditions insurance policies it has maintained at any time since

January 1, 2000.

Counsel for the insured may request that the insurance documents and information be first

produced to his/her attention. If such a request is made, counsel for the insured shall deliver to the

Document Depository a copy of all insurance documents and information received by counsel,

together with a Privilege Log listing any and all withheld documents, if any, no later than seven

(7) business days after receipt of the said documents and information. The Privilege Log shall list

the creation date, full title (or description if no title), name of the creator, name of the recipient,

and general subject matter of each withheld document.

Dated _____________________ __________________________________

Authorized Signatory

1 JON B. ZIMMERMAN [SBN. 112281] 2 3 4 5 7 ORDER NO. 1 · documents to the Depository. The Party...

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Transcript of 1 JON B. ZIMMERMAN [SBN. 112281] 2 3 4 5 7 ORDER NO. 1 · documents to the Depository. The Party...