Archive for July, 2015

Judge sets trial date in Berkeley co-op lawsuit

Thursday, July 30th, 2015

Three attorneys in a three-year-old lawsuit involving a Berkeley, California, senior housing cooperative gathered today for a case management conference with the judge and agreed on a date for a trial.

Judge George C. Hernandez, Jr., of the Alameda County Superior Court set 13 May 2016 as the trial date in the suit against 7 former directors and a former manager of Berkeley Town House, a 60-unit cooperative housed in a 9-story building south of the University of California campus. In his complaint, filed in March 2012, Jonathan Pool, a member of the co-op, claimed that the defendants had illegally wasted over $200,000 in co-op funds, neglected warnings of seismic risks, and violated numerous rights guaranteed to co-op members. Pool asked the court to make the defendants pay back the co-op, deal with the suspected seismic hazards, and stop their governance violations.

The conference marked a resumption of proceedings in Judge Hernandez’s court after a 17-month interruption caused by the defendants’ unsuccessful appeal of an order issued by the judge.

It was unclear from the attorneys’ remarks whether to expect the case to proceed through trial or to end earlier with a voluntary settlement. David H. Schwartz, attorney for Pool, said that he hoped a companion suit filed yesterday to enforce a monetary settlement agreement would bring part of the case to an end without a trial on the alleged waste of funds. He and Dennis F. Moriarty, representing the co-op, also agreed that settlement talks under way between Pool and the co-op gave some reason for hope of success, and both attorneys indicated a willingness to consider involving a mediator at this stage.

But Fred M. Feller, representing the 7 former directors, offered a more caustic view. He said that opportunities to settle the case had been squandered and called Pool’s enforcement suit “frivolous”. Its only purpose, he said, was to prevent the court from scheduling a trial.

Feller asked for the earliest possible trial date, given the futility of a settlement. Schwartz and Moriarty, however, asked for a trial no earlier than April 2016, and Hernandez chose the May date.

Hernandez also discussed whether the case would remain in his court, which is dedicated to “complex” cases, or be transfered to a regular court. He concluded that he wanted to keep the case on his own calendar unless it was “wrested” from him.

Berkeley co-op member sues former directors

Wednesday, July 29th, 2015

A member of Berkeley Town House, a 60-unit senior housing cooperative, filed suit today against seven former directors for breach of contract and asked the Alameda County Superior Court to order the defendants to pay the co-op $224,415.

San Francisco attorney David H. Schwartz, representing plaintiff Jonathan Pool, claimed that the defendants had promised to pay this amount to the co-op but had broken that promise. This promise was, he claimed, part of an agreement settling Pool’s monetary claims against them on behalf of the co-op in a related lawsuit filed three years ago. Instead of paying the promised sum, he claimed, the defendants had arranged for the co-op to treat money received in settlement of another lawsuit by the co-op as fulfillment of their promise.

Because of the close relation between the two suits, Schwartz asked the court to assign the new suit to the same judge.

Upwork encourages obfuscatory verbiage

Monday, July 27th, 2015

Upwork, a major service that arranges contractual work, has just issued some advice for clients communicating with workers across language barriers:

You may be working with a freelancer for whom English is a second (or third!) language. Use clear and straightforward communication by avoiding metaphors and easy-to-understand vocabulary.


Parties prepare for trial in Berkeley senior co-op suit

Saturday, July 25th, 2015

Parties to a three-year lawsuit involving a Berkeley, California, senior housing cooperative have announced their plans for a trial in court filings during the past week.

The lawsuit involves claims that eight officials of the co-op wasted assets, neglected warnings of seismic risks in the co-op’s nine-story apartment building, and violated rights of the resident shareholders.

After a one-year interruption caused by an appeal of a court order, the litigation is scheduled to resume with a case management conference on 30 July in Alameda County Superior Court.

Preparing for combat

In advance of the conference, attorney Hugh A. Donohoe filed a statement on behalf of Berkeley Town House Cooperative Corporation announcing his intention to file a motion for summary judgment and summary adjudication and other motions. Fred M. Feller, attorney for seven former directors of the corporation, said in his filed statement that he will make a motion to disqualify Jonathan Pool, the plaintiff, from suing Feller’s clients on behalf of the corporation. Attorney David H. Schwartz, representing Pool, wrote in his statement that he intends to file a new complaint seeking “enforcement of a contractual settlement agreement for settlement of the monetary claims”.

Feller, Schwartz, and Donohoe all indicated that they expected to conduct discovery, and Feller announced at the same time that he will conduct an oral examination of Pool on 10 August. All three attorneys said they expected to be ready for a trial within twelve months, and they all asked for a jury trial. Donohoe estimated the trial would last 5 days, Schwartz 8 days, and Feller 10–15 days.

Preparing for peace

Donohoe reported “continuous settlement discussions” between the corporation and Pool. Schwartz confirmed that Pool “continues to believe the non-monetary issues are resolvable by negotiation”. Both Donohoe and Schwartz stated their clients’ willingness to get help from a mediator in settling the case.

Seismic report issued on Berkeley Town House

Tuesday, July 7th, 2015

Two seismic engineers delivered a report on 15 June 2015 describing the findings of a brief seismic evaluation of Berkeley Town House, a 9-story, 60-unit 1960s cooperative apartment building occupied by seniors in Berkeley, California.

The 11-page report, by Joe Maffei and Karl Telleen of Maffei Structural Engineering, begins with a two-page executive summary. The report lists prior documents that were reviewed by the engineers as part of their evaluation:

  1. 17 pages of structural drawings, 1960
  2. 1962 interview with engineer (page 5)
  3. 1990 engineer letter
  4. 1990 resident letter
  5. 2000 structural engineering proposal
  6. 2002 technical report
  7. 2007 inspection report
  8. 2009 engineer presentation slides
  9. 2010 resident rapid visual screening
  10. 2014 resident rapid visual screening
  11. 24 pages of architectural drawings, 1960
  12. 8 pages of mechanical and plumbing drawings, 1960
  13. 9 pages of electrical drawings, 1960

The report discusses five potential risks from a major earthquake, possible additional investigation, and possible remedial measures that might ameliorate risks if confirmed.

Readers with comments or questions about the report, or about the above-listed documents, are invited to comment below.

Addendum, 7 July 2015:

On 30 June, Maffei and Telleen wrote a one-page memorandum commenting on an additional prior document. That addendum has now been attached to the evaluation. The prior document is also available:

1989 damage summary