Archive for September, 2012

Contractor denies claims in Berkeley co-op suit

Wednesday, September 26th, 2012

A contractor named in a lawsuit claiming defective construction at a Berkeley senior housing cooperative filed an answer on Monday in Alameda County Superior Court, denying all claims.

Danville contractor Garry Secrest and American Pacific Coatings, Inc., jointly answered a cross-complaint in the suit, filed by cooperative shareholder Jonathan Pool against 8 officials of Berkeley Town House alleging that they had paid various Secrest-controlled entities $224,000 for a bungled waterproofing and exterior construction job performed with no license, no insurance, no building permit, and no signed contract. The cooperative filed a cross-complaint against Secrest and American Pacific Coatings, claiming they should pay for any damages the court might award.

In their answer, filed by Danville attorney Charles A. Koss, Secrest and APC argued that no valid claim had been or could be made against them by the cooperative and that they had properly done everything they had agreed to do.

Secrest and the other parties are scheduled to appear at a case management conference on 19 November.

Berkeley co-op lawyer blasts this blog in court

Wednesday, September 12th, 2012

Pressure mounted today on the parties to settle a lawsuit involving alleged contracting losses of over $200,000, seismic risks, financial mismanagement, and infringements of shareholder rights in a Berkeley senior housing cooperative. While an attorney sought the court’s help in speeding settlement negotiations, the judge chastised him for offering the allegedly unqualified contractor extra time to respond.

The case management conference, before Judge Steven A. Brick of Alameda County Superior Court, was the first court confrontation between the parties in the case, arising from conflicts at Berkeley Town House, which, when founded in 1960, was reportedly the first senior housing cooperative in the United States.

Attorney William E. Joost, Jr., representing the cooperative and seven of its current and former officials, sought to clarify the status of the co-op’s own related suit against Danville contractor Garry Secrest and his firm, American Pacific Coatings, Inc. Joost said these defendants had been served in June, even though proof of service had not been filed with the court until Monday of this week. Joost went on to inform the court that, in light of the impending settlement of the main case, the co-op had given Secrest and APC an “open extension” of the deadline to file their responses. The judge, retorting “You can’t do that”, told Joost that only the court, and not any attorney, had the authority to extend the deadline. Brick added that even if the original suit’s parties settle their case this won’t stop the suit against Secrest and APC. Brick set 24 September as the final deadline for the Secrest and APC responses and instructed Joost to seek entry of a default judgment against them if they fail to respond by then.

Joost also complained of slow negotiating by David H. Schwartz, attorney for plaintiff Jonathan Pool [the owner and author of this blog]. Judge Brick noted that August is often a vacation time for attorneys, but instructed the attorneys to continue talks expeditiously and bring mediator and retired Alameda County Superior Court Judge Richard Hodge back into the case for further mediation if a settlement isn’t concluded shortly. Schwartz promised a response by the plaintiff within two days, and both attorneys agreed that it was realistic to aim for a final settlement in time for the next scheduled case management conference on 19 November.

Joost explained his sense of urgency by raising a copy of this blog in the air and accusing plaintiff Pool of updating it every day with statements containing factual inaccuracies. Judge Brick reminded Joost that Pool has First-Amendment rights, until and unless he agrees in a settlement not to exercise some of them, but that the defendants are free to rebut any allegations of Pool in blogs of their own.

After the hearing, Judge Brick issued an order confirming the 24 September deadline for the Secrest and APC responses and the 19 November date for the next hearing.

Editorial profession: good riddance?

Saturday, September 8th, 2012

Many lament the ongoing extinction of authoritative credentialers in the world of publication. Writers (and artists) are increasingly publishing their own works, without the benefit of years of rejection followed by a lone willing publisher and its editor. This trend may be filling the world with ever more (thankfully) digital garbage.

But some remind us that professional and even academically respectable publication and editorial curation is no guarantee of high-quality written discourse. Such is friendless1, a blogger who in “The Editor Has No Clothes” notes today a bunch of inexcusables in a book published by the University of California Press, whose author lauds his editor there and her “talented team”.

What’s significant about the friendless1 critique is that the book’s bad grammar is accompanied by cavalier moral reasoning about life and death, something that the press of a university with world-class philosophers on the faculty might be expected to know how to weed out. Even if some won’t buy every one of the grammatical gripes (e.g., singular “they”), most are open-and-shut, and the quoted moral dictum is what one might expect only out of amateurs and ideologues.

Perhaps, then, institutional editorial quality control doesn’t really exist any longer, and its loss is the world’s gain.

Berkeley co-op lawyer reveals proposed settlement terms in suit

Thursday, September 6th, 2012

Berkeley, California, 6 September 2012

A Berkeley senior housing cooperative’s insurance company would pay to repair defective waterproofing construction, under a draft of a lawsuit settlement made public on Tuesday. The co-op would also commission an engineering study of its building’s seismic condition, seek to change its management, and agree to submit future related disputes to binding arbitration.

The proposed settlement details were disclosed in a filing by Fred M. Feller, a Berkeley attorney representing Berkeley Town House Cooperative Corporation and seven of the defendants in a lawsuit filed in Alameda County Superior Court in March. The plaintiff in the suit, co-op member Jonathan Pool [the author and owner of this blog], claims that negligent contracting by directors and the former manager of the co-op caused losses of over $200,000 in failed waterproofing and exterior construction work by Danville contractor Garry Secrest, working with no license, no insurance, no building permit, and no contract. The suit also claims that the co-op’s board of directors has ignored expert warnings of possible seismic defects in the co-op’s nine-story 1960s building, illegally mismanaged the co-op’s finances, and violated numerous member rights.

In the settlement draft made public by Feller, the defendants would not admit any liability, but the co-op’s insurance company would pay for “necessary repairs” to Secrest’s work. The co-op would make available to all its members a new seismic study of the building by El Cerrito structural engineer Maryann Phipps, president of Estructure. The board would seek to contract out the co-op’s management to an experienced firm and to accept director training offered by the firm. The mediator who helped bring about the settlement would act as an arbitrator in any related future disputes. Pool, who has been managing two unofficial websites about the co-op, would return records to the co-op that he had obtained during his prior service on the board of directors and allow the co-op to take over domain names and web content related to the co-op for use on the co-op’s own website. Pool would label his own websites related to the co-op as unofficial, would not claim to represent the co-op, and would obey applicable rules and laws. The defendants’ insurer would repay Pool’s contribution to the cost of the mediation, and, if the insurer didn’t agree voluntarily to pay for Pool’s attorney fees and other legal costs, Pool would seek a court order for their reimbursement.

San Francisco attorney David H. Schwartz, representing Pool, stated in a filing yesterday that the Feller draft covered the agreed issues, but departed from some of the agreed terms. A tentative settlement had emerged from a one-day June mediation session with retired Alameda County Superior Court Judge Richard Hodge, but, according to Schwartz, the Feller draft “includes terms that were not discussed or agreed to at the mediation and limits certain other terrns to a more narrow application than was agreed to”. The attorneys also sparred on whether a settlement agreement would be possible without court approval and an opportunity for the co-op’s 60 members to comment on it beforehand.

Trial judge Steven A. Brick issued a tentative order yesterday postponing the lawsuit’s next hearing from 12 September to 19 November and setting forth criteria for approval of a settlement. The order also demanded that the co-op explain why it had missed a filing deadline, or face sanctions. The co-op had filed a cross-complaint against Secrest on 9 May, but more than the allowed 30 days had passed and the co-op had not filed proof that it had served its complaint on Secrest.

Update, 12 September 2012: On 10 September 2012, proofs of service of the cross-complaint against Garry Secrest and American Pacific Coatings, Inc., dated 18 and 19 June 2012, were filed with the Court.

The lawsuit, “Jonathan Pool vs. Berkeley Town House Cooperative Cooperation, Almalee Henderson, Judith Wehlau, Charles Tuggle, Katherine Miles, Nancy Epanchin, Raymond Dirodis, Rita Zwerdling, Cheryl L. Samson” (case RG12620088), was filed on 6 March. Public documents in this case include the following. Those containing significant substantive information are marked “*”.

Update, 13 September 2012: The outline below was current as of 6 September 2012. Another entry contains a complete, up-to-date outline of the documents.

The public records are also available from the Superior Court at its case website.

If you wish to be notified when this posting is changed (such as when new records are added), you may use the follow-that-page service.

Editorial note

To avoid proliferation of similar content, my news and others’ comments on this topic are collected in this one entry. Comments below were made in response to the then-current version of this entry.

Earlier posting dated 23 July 2012:

Judge orders Berkeley co-op litigants to meet after “tentative settlement”

On 23 July 2012, an Alameda County judge ordered all parties in a Berkeley senior housing cooperative lawsuit to meet and then appear before him in September.

Judge Steven A. Brick of the Alameda County Superior Court issued the case management order in a suit brought by a shareholder of Berkeley Town House Cooperative Corporation against the corporation and 8 of its present and former officials. The order canceled a case management conference scheduled for 25 July, scheduled a new one for 12 September, and told the parties to meet and prepare a joint statement in advance. Brick stated that he had read and appreciated a statement submitted by the plaintiff, which reported that the parties had reached a “tentative settlement” in a mediation session on 28 June before retired judge Richard Hodge in San Francisco. Brick reminded the attorneys, however, that, because the lawsuit was a “derivative action”, the parties will be required to obtain the court’s approval of any settlement. A derivative action is one brought by a shareholder to enforce the corporation’s rights against third parties.

The lawsuit, “Jonathan Pool vs. Berkeley Town House Cooperative Cooperation, Almalee Henderson, Judith Wehlau, Charles Tuggle, Katherine Miles, Nancy Epanchin, Raymond Dirodis, Rita Zwerdling, Cheryl L. Samson” (case RG12620088), was filed on 6 March. The plaintiff’s 224-page complaint, as summarized in his statement, alleges that “defendants wrongfully hired a contractor named Garry Secrest to perform maintenance and repair work at the property which ultimately failed, at a cost to the cooperative in excess of $224,000”, “have wrongfully failed to take necessary steps to review and determine the conditions for seismic safety at the property”, and “have violated numerous procedural requirements” of California laws and the corporation’s governing documents. The defendants responded that they “dispute all of plaintiff’s allegations”.

On 9 May, the corporation filed a cross-complaint against Secrest and a Secrest firm, American Pacific Coatings, Inc., seeking indemnification for all judgments against the corporation and its legal costs.

Public documents in this case include the following. …