Contractor in Berkeley balcony collapse seeks restraining order, wants to examine evidence
The lead contractor on the Berkeley apartment complex that was the site of a deadly balcony collapse in mid-June sought a restraining order Tuesday to prevent district attorney investigators from examining the evidence without a company representative present.
After a brief court appearance, Alameda County Superior Court Judge Evelio Grillo postponed a hearing on the matter until Wednesday.
The Alameda County district attorney's office announced last week that it had launched an investigation into the June 16 collapse at Library Gardens to determine whether charges of criminal negligence or a civil consumer protection action are warranted.
A spokesman for Pleasanton, Calif.-based Segue Construction Inc. said Tuesday the company "will continue to cooperate with the investigation." After company officials met with prosecutors in court, he said, “We are now working with the office of the district attorney to ensure all applicable evidence is preserved.”
District attorney spokeswoman Teresa Drenick said it would be "improper for me to comment at this point in time."
The request seeks to prevent anyone affiliated with the D.A.'s investigation from "inspecting, altering, testing, examining, scrutinizing, probing, weighing, exploring and/or investigating any of the balconies and/or other evidence" related to the collapse without a Segue representative present.
Attorneys wrote that Segue would suffer "irreparable injury" if it were excluded from the D.A.'s examination of the evidence.
The filing hints at the complex litigation that is likely to result from the tragedy, as parties affiliated with the building and its construction look downstream for potential liability.
Thirteen students — 12 of them Irish citizens and one a dual U.S. and Irish citizen from Santa Rosa — were on the balcony of Unit 405 when it collapsed. Six died and seven were injured, some severely.
That balcony was removed by the city of Berkeley later that day. On June 17, at the urging of public officials, Belfor Property Restoration removed the balcony from Unit 305. It also appeared to have suffered water intrusion and resulting dry rot.
That balcony "may now be irreversibly damaged from destructive testing," Segue Executive Vice President David Dunlop said in a court declaration.
Two other balconies, which were constructed in a different manner, were inspected but not removed.
"With the exception of a 15-minute visual inspection on June 17, Segue has otherwise been denied access" to all the balconies, the court filing said.
Segue had planned to begin its own investigation and repairs to the balconies at the invitation of BlackRock, which manages the property fund that owns the building, the filing said. But the D.A. seized all of the evidence before that could happen.
The filing adds that Segue's defense at any civil or criminal trial "will be severely compromised" if the restraining order is not issued. Denial of access to the evidence would hamper the company's efforts to "prosecute its own cross-action against potentially implicated subcontractors," the filing said.
Joseph Lucia, an Oakland attorney hired by the parents of 22-year-old Ashley Donohoe, who was among the dead, said his office had sent a letter to Segue on June 23 seeking all documents and correspondence related to the building project.
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FOR THE RECORD
An earlier version of this post said Lucia's office had not received a response to its letter to Segue. The company responded on June 25.
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"It would seem somewhat hypocritical to be seeking a restraining order to gain access to the building and materials, while at the same time prohibiting access to evidence that is in Segue’s possession," Lucia said.
Segue attorneys responded to Lucia two days after his request, saying that “almost all” of the information and documentation was “in the possession of the owner of the property” and that Segue hoped to make it available to "all interested parties" at the same time.
The attorneys said that Segue anticipated “a formal inspection …at the project site and at the Belfor yard where the removed balconies are stored” and that “all interested parties will be invited to attend,” including victims’ representatives, as well as the property owner and manager and project subcontractors. However, the district attorney launched its probe soon after.
Segue spokesman Trevor Martin said in a statement that the company has constructed more than 6,000 apartments in the region over the past two decades and has "never had an incident in which a member of the public was injured as a result of construction defects after a project was completed. ... Segue is committed to moving forward with efforts to determine the cause of the collapse."
The legal action was filed a day after the city of Berkeley released documents in response to a Times public records request indicating that the balcony had passed a 2014 inspection.
Times staff writer Paige St. John contributed to this report.
UPDATE
4:30 p.m.: This post was corrected and updated with additional comments from Segue's lawyer.
This story was first posted at 1:23 p.m.
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