An Alameda County Superior Court judge on 10 July made final a ruling giving a Berkeley senior housing cooperative’s board of directors and corporate attorney three months to legitimize the way in which the co-op has conducted itself in an ongoing lawsuit over construction contracting, earthquake preparedness, and governance procedures.
In confirming his tentative ruling issued a week earlier, Judge Steven A. Brick acknowledged plaintiff Jonathan Pool’s claim that attorney Stephanie J. Hayes of the Walnut Creek law firm Hughes Gill Cochrane had a conflict of interest in representing Berkeley Town House Cooperative Corporation while also siding with the corporation’s officials being sued by Pool. Brick stated, however, that Pool’s attorney had not shown a conflict of interest involving Hayes. In contrast, Brick agreed with Pool’s conflict-of-interest claim against Fred M. Feller of the Berkeley law firm Buresh, Feller, Kaplan & Chang, since Feller is on record as representing both the co-op and the defendant individuals from whom Pool is seeking compensation to be paid to the co-op.
In barring Feller from continuing to play his conflicting roles until the co-op can show that a majority of its disinterested members are willing to waive the conflicts, Brick refused to tell Hayes how to organize this showing. Pool’s attorney, David H. Schwartz of San Francisco, asked Brick to require that the members be told whether the co-op’s insurance company, Travelers Property Casualty Company of America, would agree to fund the costs of the corporation’s legal defense with a new attorney independent of the individual defendants. Brick replied that he was intentionally giving Hayes the freedom to determine what a valid informed waiver by the co-op’s members would entail, and the court would decide, when the co-op submitted the members’ signatures or votes, whether they were valid. Feller stated that Hayes’s job would be difficult, since it was not obvious whether a mere gathering of signatures would suffice or a vote of the membership under the procedures specified in the Civil Code would be necessary. Brick said he believed Hayes could figure that out.
Feller also stated that he was going to meet with the co-op’s board of directors that afternoon. Feller did not mention that the co-op’s members had not been notified of that meeting, despite the Civil Code’s requirement that members be given at least two days’ notice of any board meeting in executive session.
In response to a question from Concord attorney Franklin C. Aghassi, representing Galt flooring contractor Esteban Cardiel, implicated along with Garry Secrest of Danville in the construction-waste claim of Pool’s complaint, Brick stated that while the co-op is collecting waivers of Feller’s conflicts of interest the entire case will be stayed, including the litigation among the co-op, Cardiel, and Secrest.