Page One

Berkeleyan Leaks Prompt Second Kennedy Lawsuit

Friday July 23, 2004

Alleged construction defects at a second of Patrick Kennedy’s stucco-clad downtown apartment buildings have triggered another lawsuit pitting the developer against his architect and Berkeley contractor Kimes Morris. 

The suit, filed in Alameda County Superior Court on July 13, alleges that construction defects at the five-story Berkeleyan at 1910 Oxford St. caused leaks resulting in “decaying and deteriorating structural members of the interior courtyard. . .creating a serious life and safety hazard.” 

A similar suit filed last year over alleged construction flaws in the nearby Gaia Building on Allston Way between Oxford and Shattuck Avenue has cost the developer over $10 million, according to papers filed with the court. 

Each of Kennedy’s Berkeley projects has been created as a separate legal entity, either a limited liability corporation (LLC) or a limited partnership (LP). 

The latest suit, filed by The Berkeleyan, LLC, names three defendants also included in the Gaia suit: Kimes Morris, architect Randall Harris, and Richard’s Roofing. While the contractor used Cres DP Inc. as the stucco contractor at the Gaia, defendant Nava E. Nava Plastering Inc. applied the stucco at the Berkeleyan. 

While the Gaia Building’s problems largely involved the structure’s exterior walls, problems at the Berkeleyan were centered on the interior courtyard. 

The Berkeleyan suit targets the protective flashing at the base of the courtyard’s support columns, along the courtyard perimeter walkway, at the juncture of the deck to the walls, along the parapets, at the doorways, and where exterior walls are penetrated by pipes. 

The suit also blames inadequate installation of roofing materials, improper installation of waterproofing membrane, and lack of drainage under the slab of the interior courtyard walkway and the lack of a drainage (weep) panel at the base of the interior courtyard columns. 

Extensive reconstruction of the courtyard began in December, when a plastic shroud covering was erected and scaffolding went up. Further reconstruction work was visible in June, when a large chute for dumping construction was installed from the roof level to the ground. 

Neither Kennedy, his attorney Robert Riggs, nor Kimes Morris had returned calls by presstime. 

Berkeley Planning Director Dan Marks said he had no idea whether or not stucco construction flaws were more widespread in Berkeley than in other cities. 

“With almost any construction material you will end up having trouble over time,” Marks said. “I don’t know if it’s a general problem, or just a specific problem, a civil matter, between this developer and his contractor. I just don’t have enough information.” 

Problems at the Gaia Building have resulted in complaints from tenants, many of whom have said they’re afraid to speak on the record, said Berkeley City Councilmember Dona Spring, whose district includes both buildings. 

Nancy Pfeffer, research analyst for Cal Rentals, said she hadn’t heard of any student complaints about either building, while Jesse Arreguin, housing commissioner for the Associated Students of the University of California, told the Daily Cal that student tenants at the Gaia were threatening to file suits. 

Spring said she had heard that the parents of some students at the Gaia Building had threatened to sue. 

Spring said, “I did hear from a couple of tenants at the Berkeleyan. One, who said there had been quite a bit of ongoing construction over the years, said he wanted out. He said that because of construction defects, he can’t open his windows and because of the heat he has to open his door to sleep at night.” 

Spring said several Gaia tenants had complained of the smell of the mold infesting the building, and some said the water was attracting mosquitos. 

Because of ongoing problems at the Gaia Building, Spring said, “if tenants are smart, they can negotiate the rent down. Two-bedroom apartments that were listed at $2,400 were renting for as low as $1,100.” 

While Kennedy’s Berkeleyan lawsuit doesn’t specifically mention mold, infestation is suggested by mention of “decaying and deteriorating structural members,” problems typically caused by molds which feed on the carbohydrates in wood. 

Councilmember Spring also said she had received reports of a potentially more serious problems with the Berkeleyan’s foundations.