Archive for April, 2016

Court pressures parties to settle Berkeley senior co-op case

Wednesday, April 6th, 2016

Attorneys for a Berkeley senior housing cooperative and seven of its former directors involved in a four-year-old lawsuit and a more recent related case switched their position in court on 5 April from “Give us more time to settle this case” to “Please pressure us to settle this case fast”, and the judge applied even more pressure than they asked for.

Alameda County Superior Court Judge George C. Hernandez, Jr., heard Dennis F. Moriarty and Huge A. Donohoe, representing Berkeley Town House Cooperative Corporation, which owns a sixty-unit apartment building near the University of California campus, and David L. Jordan, representing seven former directors of the the co-op, take a position opposite to the one they had taken a week earlier. In a statement filed on 30 March, signed by them and by Moji Saniefar, representing co-op member Jonathan Pool, who had initiated the litigation in 2012, the attorneys had agreed that a voluntary settlement of both cases was “imminent”. They had argued that the court should continue its ban on discovery long enough to let the parties work out the details instead of collecting evidence to get ready for a trial. The statement disclosed that Pool had given the co-op a settlement offer valid until 31 May, permitting time for a new co-op board of directors, to be seated on 23 May, to review the terms.

On 25 February, Hernandez had ordered “the discovery stay be extended until the next hearing” and had scheduled that hearing for 24 March. On 24 March he scheduled another hearing for 5 April and ordered the parties to give him a statement “limited to whether the stay on discovery should remain”.

At the court session, however, the co-op’s attorneys asked the court to continue the stay for only two weeks, so as to pressure the parties to settle. William E. Joost, Jr., representing the same seven ex-directors in the original lawsuit, asked the court to apply even more pressure by letting the parties immediately resume their discovery activities. Saniefar told the court that two weeks would be insufficient and the parties should be given at least four more weeks to complete a settlement before being permitted to resume discovery.

After hearing the conflicting requests about how long to leave the stay on discovery in place, Hernandez told the attorneys that the stay on discovery that they had been arguing about did not exist. He asserted that any suspension of discovery was a private agreement among the parties, not something imposed by the court.

In an order issued after the hearing on 5 April, Hernandez wrote that the trial date of 13 May would be “maintained” and declared that “discovery was not stayed by the Court”. In a separate order in the related case, he ordered the parties to appear on 13 May so he could set a date for that case’s trial.

Settlement impending in Berkeley co-op lawsuit?

Sunday, April 3rd, 2016

In court filings last week, attorneys in two lawsuits involving a Berkeley senior housing cooperative told opposing stories about efforts to settle both cases. Three attorneys claimed that a settlement by the end of May is likely, while a fourth attorney rejected that hope and asked the court to keep the pressure on the litigants to settle the cases or face a mid-May trial.

An optimistic story was told by attorneys for the co-op and and eight individual litigants in a joint statement filed in Alameda County Superior Court on Wednesday. Their statement revealed plans to settle a four-year-old lawsuit and a more recent related lawsuit filed in July.

The statement was filed by Hugh A. Donohoe, representing Berkeley Town House, a sixty-unit co-op apartment building near the U.C. Berkeley campus; David H. Schwartz, representing Jonathan Pool, a member of the co-op; and David L. Jordan, representing seven current and former members of the co-op whom Pool is suing for breach of contract in the July case.

In their joint statement, the attorneys told Judge George C. Hernandez, Jr., that Pool and the co-op “have exchanged several drafts of a settlement agreement and have continued to make progress in reaching a global settlement.” Now, they said, a settlement is “imminent”. According to the statement, Pool made a settlement offer to the co-op on 25 March, expiring on 31 May. The attorneys noted that new directors of the co-op are scheduled to take office on 23 May, and “it is prudent to allow Plaintiff’s current settlement offer to be reviewed by the directors who will have the responsibility of implementing its provisions.”

Donohoe, Schwartz, and Jordan argued that the court should not permit the parties to resume preparations for a trial, because doing so “would shift resources away from settlement efforts to time-consuming and expensive litigation efforts”, cause the parties to take “antagonistic positions”, and undermine the agreement to have the costs of litigation covered by insurance. Moreover, they claimed, the co-op’s members “also have a stake in the outcome of this case as Plaintiff’s claims involve matters of governance. These governance matters are best addressed through negotiation and collaboration between the parties”, giving co-op members “an opportunity to provide their input to any settlement that is reached.”

On the same day, a very different story was told by Fred M. Feller, the attorney representing the same seven defendants in the four-year-old case. Feller’s statement said that these defendants have been waiting for over 3 years for a settlement and are convinced that “only a trial, or the pressure of an imminent trial deadline, will ever force this matter to conclusion”. Therefore, wrote Feller, the court should permit the parties to resume preparation for trial, and the trial, currently set for 13 May, should not be postponed.

The attorneys’ conflicting arguments will be reviewed by Hernandez on Tuesday.

The lawsuit initiated in March 2012 involves claims by Pool of wasted funds, defective construction, earthquake hazards, and violations of co-op members’ rights. In the later suit, Pool claims that the seven defendants entered into a contract to pay the co-op $224,415 and then broke that contract. The latest attempt at settling the cases began in mid-December with the aid of mediator David J. Meadows.