Mediation fails again in Berkeley co-op lawsuit

A second attempt at mediation of a complex lawsuit involving a Berkeley senior housing cooperative collapsed on Monday, and today the attorneys in the case appeared in court to plan for a trial.

Parties, attorneys, an insurance adjuster, and a mediator tried for a second time on Monday to resolve a lawsuit over alleged misconduct at a Berkeley senior housing cooperative, but failed again, according to a statement filed in court yesterday.

Attorneys for plaintiff Jonathan Pool and multiple defendants agreed that the case was headed for trial, but disagreed on whom to blame.

Today the three attorneys currently involved in the case appeared before Alameda County Superior Court Judge Steven A. Brick at a hearing to plan the management of the case. Fred M. Feller, attorney for Berkeley Town House Cooperative Corporation and seven of the eight current and former corporate officials being sued, said that he would be asking the court to disqualify Pool as a representative of the corporation. David H. Schwartz, Pool’s attorney, informed the court that he would be asking it to disqualify Feller’s law firm from acting as the corporation’s attorney while also representing the individual defendants, and also order the corporation’s conduct of the case to be directed by a committee independent of the defendants. Feller added color to his statement by saying that he couldn’t imagine what Pool would do if the lawsuit were resolved, since “Mr. Pool has nothing else going on in his life except this case.” Schwartz held out hope that the case could be ended more rapidly if the parties could agree on some of the issues in it. Otherwise, according to estimates by the two attorneys, it might take from 5 to 12 months before both sides were ready for a trial.

The judge sought clarification of the relationship among the two original sides in the case and five cross-defendants recently added to the case. Attorney Charles A. Koss, representing two of the cross-defendants, Garry Secrest and American Pacific Coatings, Inc., said he would not be representing the other three cross-defendants, Esteban Cardiel, Pacific CFC, and Esteban Floor Covering. Feller stated that his clients agree with Pool that waterproofing and construction performed by Secrest, Cardiel, and their companies had been defective, and said the cost of correcting it had been estimated at $400,000 by the corporation’s insurer, Travelers Property and Casualty Company of America. Schwartz replied, similarly, that Pool would be happy if funds for the corrections could be recovered from the contractors who had done the work.

Judge Brick informed the attorneys that their disqualification motions raised “threshold” issues that must be resolved before anything else. He ordered the attorneys to proceed with their motions promptly and scheduled the next case management conference on 6 July.

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