Archive for March, 2016

Police has done what?

Friday, March 25th, 2016

“The Berkeley Police Department has cleared the 1500 block of Fairview.”

That’s what subscribers to police alerts were told a few minutes ago. Do you know what it means?

Editorial: This lawyer endangers his clients

Friday, March 25th, 2016

In my report on yesterday’s courtroom argumentation in Pool versus Berkeley Town House et al., I endeavored to be informative, but also objective.

This entry, by contrast, is not objective: It is my own opinion about the remarks of one of the attorneys in yesterday’s session.

Fred M. Feller represents 7 former directors of Berkeley Town House (BTH). He stated yesterday that his clients had told him I would never settle a lawsuit voluntarily, and he had initially been skeptical of that claim, but my conduct had convinced him his clients had been correct. In particular, he said, I had never once agreed to put my name on a settlement agreement.

That claim is curious. My name is on multiple settlement agreements, and one of them bears Feller’s signature, too. It’s a settlement offer that I made to his clients on 29 October, 2013. Feller signed it on 19 November.

That’s not all. Mr. Feller should well remember that my name, and his, are on that settlement offer, because of the ruling the court issued about it. On 5 February, 2014, the Superior Court found:

Attorney Feller admits that, upon receiving the 998 offer, the individual defendants raced to settle the cross-claims with the contractors, and would only accept a settlement payment from the contractors that would cover the entire amount of Plaintiff’s 998 offer. (See Feller Decl. filed Jan. 13, 2014.) This is an admission that the individual Defendants committed promissory fraud … .

Feller appealed that ruling to the Court of Appeal, and lost. The Court of Appeal ruled on 29 April, 2015, that

Substantial evidence supports the conclusion that, by accepting the 998 Offer, the Individual Defendants induced the 998 settlement by making a promise they had no intent to perform.

The Court of Appeal went on to say:

Substantial evidence—based on the admissions of the Individual Defendants’ counsel to these facts—supported the court’s conclusion that the elements of fraudulent inducement of a contract by false promise had been met.

So, why did Feller make this false claim in court yesterday? He said his purpose was to show the court that it should let the case proceed to trial and stop waiting for BTH and me to settle the case voluntarily.

Does Feller help his clients by poo-pooing settlement efforts and demanding that this case be litigated until the bitter end? If so, the logic must be subtle. His clients are being sued for $224,415, and also for my attorney fees and costs. A settlement negotiated by BTH and me, without Feller’s involvement, would need to leave Feller’s clients free of any personal obligation to pay any of those amounts. But trying the case to the end could leave Feller’s clients with a bill far north of half a million dollars, which they could not be certain anybody else would pay for them. Asking the court to put obstacles in the way of a settlement is like saying “My clients don’t want to wait, so they are willing to risk being liable for about $100,000 each in order to get this over with fast.”

This is reckless. I doubt that Feller’s clients really want that gamble. My guess is that, if they were competently advised, they would agree to let current settlement talks between BTH and me proceed without interference, and they would wish us luck.

Lawyers spar over Berkeley co-op negotiations

Friday, March 25th, 2016

An Alameda County Superior Court judge yesterday ordered attorneys to tell him why he should or should not let them proceed to get ready for a trial in May, in a complex lawsuit involving a Berkeley senior housing cooperative.

Attorneys for Berkeley Town House, a 60-unit co-op apartment building near the U.C. Berkeley campus, and for 8 current and former members of the co-op appeared in court and by telephone before Judge George C. Hernandez, Jr., to confer on where the lawsuit should go next. At the request of all the parties, Hernandez had ordered them to stop collecting evidence from each other so efforts at a voluntary settlement could continue, and the parties had also agreed not to file any motions in court.

Yesterday, however, a split emerged. David H. Schwartz, representing co-op member Jonathan Pool, the plaintiff in the case, agreed with Hugh A. Donohoe, representing the co-op itself, that negotiations had produced agreement on about 90% of the issues in the case. Schwartz argued that continuing the prohibition of discovery activities would keep legal expenses from escalating and thereby preserve the viability of the impending settlement, which, he said, crucially depends on the parties’ legal expenses being reimbursed by insurance. David L. Jordan, representing 7 other co-op members being sued by Pool, did not disagree. But Fred M. Feller, another attorney representing the same 7 defendants, scoffed at the “90%-settled” claim, said his clients and he agree that Pool would never agree to “put his name on” a settlement agreement, and asked the judge to let trial preparation resume so the trial could take place as scheduled in 13 May.

Hernandez noted that nobody had asked him to postpone the trial and time is needed for the attorneys to prepare, so he ordered them to return to court on 5 April so he can decide whether to keep the stay on discovery in place or lift it. He further ordered the attorneys to give him their reasons for or against lifting the stay by Tuesday next week.

The lawsuit, initiated in March 2012, involves claims by Pool of wasted funds, defective construction, earthquake hazards, and violations of co-op members’ rights. The latest attempt at settling the case began in mid-December with the aid of mediator David J. Meadows.