Berkeley, California, 19 December 2013
Papers filed in court today reported major differences in the interpretation of two recent settlement agreements in a lawsuit involving a Berkeley senior housing cooperative. The disputed issues described in the 98-page filing include the amount of money to be received by the co-op under the settlements, whether the settlements settle all or only part of the case, and whether the settlements go into effect automatically or require court approval after co-op members submit comments.
The papers were filed in Alameda County Superior Court by David H. Schwartz, representing Jonathan Pool, the plaintiff and a member of Berkeley Town House, which owns a 9-story, 60-unit residential building south of the UC Berkeley campus. According to Schwartz’s motion and supporting declarations, the settlements should be interpreted as giving the co-op a total of $448,830 in damage payments, but an email sent by one of the defendants was quoted as cutting that amount in half.
Schwartz also claimed that there is a dispute over what the agreements settle. One of the agreements is between Pool and seven of the defendants. That agreement, Schwartz wrote, settles all of Pool’s “monetary” claims in the case but leaves numerous other claims still to be resolved. In the unresolved claims, Pool asks for court orders but not for money. In the filed papers, emails from a defendant and from the defendants’ attorney, Fred M. Feller, were reproduced, asserting that the settlement with Pool settles not only the monetary claims but all of Pool’s claims.
In a third apparent dispute, Schwartz argued that both settlements may not go into effect until the members of the co-op have an opportunity to object to them and after the court, considering any objections, determines that the settlements are fair to the co-op and its members. The defendants, he asserted, indicate a belief that the members of the co-op have no right to comment and the settlements must automatically go into effect.
A hearing in Oakland on 28 January has been scheduled to permit the court to consider the motion and any arguments by the other attorneys in the case.
The lawsuit, filed in March 2012, claims that the defendants, while acting as directors, officers, or employees of the co-op, wasted money with illegal expenditures on defective construction, neglected warnings of possible seismic weaknesses in the co-op’s building, and violated various rights of co-op members and procedural safeguards in governing the co-op. In addition to the settlement between Pool and defendants, the other disputed settlement is between the co-op and the contractors who performed the allegedly defective work.