Berkeley building company seeks to curb criminal investigators

City investigation may have irreversibly damaged balcony evidence, firm claims

The US company that built the apartment block where six Irish students were killed in a balcony collapse last month has criticised the City of Berkeley’s initial investigation and warned against further “destructive testing” of the evidence.

Segue Construction brought a legal challenge in the Alameda County Superior Court on Tuesday seeking a temporary restraining order against the county's district attorney, which is carrying out dual criminal and civil investigations into the cause of the collapse.

The company, which completed the 176-apartment building at 2020 Kittredge Street in 2007, claimed in court filings that it will suffer irreparable injury if the district attorney carries out “further destructive testing and invasive investigation” of the evidence without allowing Segue to participate.

An investigation by City of Berkeley building inspectors concluded that the laminated-wood joists that had supported the balcony failed due to severe rot. The joists had decayed due to water exposure.

In a court filing, the company argued that the city’s building inspectors botched the initial investigation by removing the third-floor balcony underneath the collapsed balcony and disassembling it.

The balcony, Segue’s lawyers argued, “could have been used for accident reconstruction purposes to determine the source and cause of water intrusion” on the fourth-floor balcony above.

The lower balcony “may now be irreversibly damaged from destructive testing,” the lawyers said.

The company said that neither the firm or its representatives were invited to participate in the “destructive testing and removal” of the balcony and, with the exception of a 15-minute visual inspection the day after the accident, it had been denied access to the evidence.

On or about June 26th the district attorney seized control of the accident scene and all evidence connected with it to the exclusion of Segue and others as it opened the criminal investigation, the firm said.

In light of the pending criminal investigation and the possible spoiling of evidence, Segue asked the court for a temporary restraining order blocking the district attorney’s investigation to its exclusion.

If the district attorney proceeds with the investigation without Segue’s involvement, the company will “suffer imminent, significant and irreparable harm,” lawyers for the Pleasanton-based company said.

“If Segue is prohibited from receiving notice and the opportunity to participate in any investigation or destructive testing of the evidence in this matter, Segue will be severely compromised in its defences at trial in anticipated civil and/or criminal action(s),” Segue’s lawyers said.

The company wants a preliminary injunction stopping the district attorney and its representatives from “inspecting, altering, testing, examining, scrutinising, probing, weighing, exploring and/or investigating” any of the balconies or other evidence to its exclusion.

“Additional invasive investigation and/or destructive testing of the materials in this matter could further damage the evidence,” the company’s lawyers Victoria Ersoff and Alicia Kennon of the firm Wood Smith Henning & Berman said.

Five 21-year-old Dublin students - Eoghan Culligan, Lorcán Miller, Niccolai Schuster, Eimear Walsh and Olivia Burke - and Ms Burke's Irish-American cousin Ashley Donohoe (22), from Rohnert Park, California - were killed when the fourth-floor balcony collapsed during an early-morning 21st birthday party on Tuesday, June 16th.

Seven other students fell from the balcony and were injured in the collapse, a number of whom were seriously hurt.

Two of the injured have been discharged from hospital and the others are being treated in five hospitals in the San Francisco Bay Area.

Lawyers for Ms Donohoe's parents, George and Jackie, wrote to Berkeley Mayor Tom Bates, city officials and Alameda County district attorney Nancy O'Malley to complain that no proper, independent and impartial investigation had been carried out into the balcony collapse.

Rains Lucia Stern, the San Francisco firm representing the Donohoes, argued that the initial investigation by Berkeley city officials may have involved parties which are “potentially responsible” for the collapse.

“How can a potentially responsible party conduct a truly ‘independent’ investigation?” Joseph Lucia, a lawyer for the Donohoes, asked city officials in a letter dated June 19th.

The San Francisco Chronicle reported last night that a California state lawmaker has promised to "change the law" that prevents building regulators from learning about multi-million dollar legal settlements involving construction companies.

Democratic state senator Jerry Hill told the newspaper that the law should be changed to require companies to report legal cases to the Contractors State Licence Board, which grants and renews licences for building contractors.

He made his comments after it emerged that the board was unaware that Segue oversaw projects in which legal settlements over construction defects totalled $26.5 million in the past three years.

Simon Carswell

Simon Carswell

Simon Carswell is The Irish Times’s Public Affairs Editor and former Washington correspondent

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