Reported Cases and Cases of Note

1944-1946-1948 Green Street Condominium Association v. Leslie Durschinger et.al. (2019) San Francisco Superior Court Case No. CPF-19-516940. Represented the Plaintiff Association against a homeowner who built a deck and other improvements onto the Association common area property and refused to remove that construction. Case was submitted to binding arbitration before JAMS and the Honorable David Garcia (ret.). After a full evidentiary hearing, Plaintiff Association prevailed in every aspect of the case. The homeowner was ordered to remove the construction in the Association common area, numerous counterclaims were summarily denied, and the Association recovered all of its attorneys’ fees and costs from the defendants in excess of $160,000. (Judgment entered on January 8, 2020 by the Honorable Ethan P. Schulman) Defendants represented by Paul W. Windust of Berding Weil.

Daniel Stea v. JP Morgan Chase Bank N.A. (2019) Contra Costa County Superior Court Case No. C13-02527. While representing individual defendant, obtained a complete dismissal of plaintiff’s entire case and all claims prior to trial. Order entered May 7, 2019, Honorable Steven K. Austin presiding.

Hermosillo v. Williams (2018) San Francisco Superior Court Case No. CGC-16-556217; This case was tried before a San Francisco jury from May 8, 2018 to June 1, 2018 the Honorable Garrett L. Wong presiding. As co-counsel and as lead attorney on his cross-complaint, Williams obtained a Judgment of nearly $80,000 against Plaintiff Hermosillo when a nearly unanimous jury found for Williams on all counts. Plaintiff was awarded nothing, and the jury found that Hermosillo had violated Penal Code Sections 632 & 632.7 by secretly taping Williams. Hermosillo was represented by tenants’ rights attorney Daniel Berko and the Law Office of Daniel Berko. Berko took his client into court seeking millions in recovery and obtained zero and had a judgment entered against her (plaintiff Hermosillo) for nearly $80,000.(Judgement entered August 20, 2018)

Ben S.B. Lee et al v. Vincent Mark Rafanelli, Sarah Rafanelli et al, (2011) San Francisco Superior Court Case No. CGC-11-510886 Action to enforce a Settlement Agreement for Land Use brought against Developer Rafanelli. The Court granted summary judgement and ordered enforcement of settlement agreement and awarded the Lee's (William's clients) nearly $200,000 for fees and costs. Rafanelli was represented by "Super Lawyers" Joseph N. Demko, David Cincotta, Matthew S. Kenefick and Jeffer, Margels, Butler & Mitchell LLP. (Judgement entered March 12, 2013)

Williams v. San Francisco Bd. of Permit Appeals (1999) 74 Cal.App.4th 961, disapproved by the California Supreme Court in Roy Whitley North Bay Regional Center v. Virginia Maldonado (2010) S175855 to the extent it holds that the application of § 1021.5 is conditioned on the “financial burden of private enforcement,” i.e., the existing financial incentives and burdens, and not on any nonpecuniary interest in the outcome. a litigant‘s personal nonpecuniary motives may not be used to disqualify that litigant from obtaining fees” under § 1021.5 as a “private attorney general.”

Kennedy Cabot & Co. v. National Association of Securities Dealers, Inc., (1996) 41 Cal.App.4th 1167. Leading California case on compelling arbitration in the face of a claim of bar by the statute of limitations. Represented an individual against the corporation Kennedy Cabot & Co., a stock trading firm. The Court of Appeal reversed the Los Angeles California Superior Court and ordered the parties to arbitration after the court granted an injunction and dismissed the individual’s claims.

Land Use/Other Litigation Experience

Neighbors for Preservation and Progress v. San Francisco Board of Appeals (2014) San Francisco Superior Court Case No. CPF-14-513752; Following court trial, Judgment granted, and Preliminary Writ of Mandate issued vacating the Board of Appeal’s decision to approve a development project near the Liberty Hill Historic District. The Board had previously ruled in the neighbor’s favor and then reversed itself after coming under political pressure. The Court returned the matter to the Board for further consideration. Honorable Ernest H. Goldsmith, presiding.

Bernal Heights Park Association v. City and County of San Francisco, et al., (filed March 28, 2006) San Francisco Superior Court Case No. CPF-06-506199, Following a court trial, obtained a Writ of Mandamus against the City after it violated Streets and Highways Code Section 892 by vacating a portion of Bernal Heights Boulevard, taking parking from surrounding neighbors and failing to ensure its continued use by pedestrians and bicyclists. The Court found the City failed to perform its duty under Section 892. Writ issued November 30, 2007, Honorable Peter J. Busch, presiding.

San Franciscans for Livable Neighborhoods v. City and County of San Francisco, et al., (filed August 4, 2011) San Francisco Superior Court Case No. CPF-11-513077; Co-counsel in action under CEQA representing a coalition of neighborhood groups challenging the City’s adoption of a new Housing Element without proper environmental review. Writ of Mandamus issued January 15, 2014, requiring City to comply with CEQA and to make findings to support Housing Element amendment to the General Plan. Honorable Terri L. Jackson presiding.

Good Government Alliance v. City and County of San Francisco, et al., San Francisco Superior Court Case No. 322995 (filed July 18, 2001). Writ challenge to the 41% garbage rate increase given to NORCAL Waste Systems.

The Roman Catholic Archbishop of San Francisco v. City and County of San Francisco, et al., Superior Court Case No. 312648. This matter was disposed of by summary judgment on February 7, 2001, hearing before the Honorable A. James Robertson, II. Represented the real parties in interest who were the parishioners and parents of school age children attending St. Thomas More Church ("Friends of St. Thomas More"). Real parties in interest sought to establish easement rights and oppose the closure of the Church and school and planning and building approvals granted to the Archdiocese. Opposing counsel representing the plaintiff in the matter was John P. Christian of Tobin & Tobin.

Russian Hill Preservation Society v. City and County of San Francisco Department of Public Works, et al., San Francisco County Superior Court Case No. 313538. Hearing on writ held on July 20, 2000, before the Honorable Ronald Evans Quidachay. Respondents represented by the San Francisco City Attorney's Office and real parties in interest Cal-Jones Development, Inc. represented by Sanger & Olsen. Petitioners challenged permits for development and a "major street encroachment" granted to developer Cal-Jones by the City which involved excavation of the final "natural" portion of San Francisco's Russian Hill.

Cauthen v. San Francisco Board of Appeals, et al., San Francisco Superior Court Case No. 999137. Administrative mandamus writ petition challenging rulings by the Board of (Permit) Appeals regarding a non-conforming use (bar and restaurant) on San Francisco's Telegraph Hill. Hearing held before the Honorable Ronald Evan Quidachay on February 2, 1999. Settlement reached prior to verdict.

Twin Peaks Improvement Association v. San Francisco City Planning Commission, et al., San Francisco Superior Court Case No. 996336. Writ and mandamus procedure held June 10, 1999, before the Honorable David A. Garcia. This case involved a series of challenges brought by the surrounding residents of the Sutro Tower in San Francisco, opposing attempts to expand the Tower and the conditional use and other permits for the Tower. The petitioners made challenges under CEQA and under the San Francisco Planning, Building and Public Works Codes related to Sutro Tower, Inc.'s proposals to expand and for violations of its existing permits. Opposing counsel representing the respondents and real party in interest were Pillsbury, Madison & Sutro LLP and Cooper, White & Cooper, LLP, and the San Francisco City Attorney's Office.

Eleventh Street Nighttime Entertainment Preservation Association v. San Francisco Board of Appeal, et al., San Francisco Superior Court Case No. 995151. Action challenging the construction of "live/work" lofts in San Francisco's SOMA District and seeking to establish a Nighttime Entertainment District. Matter was settled before trial between petitioners, the City and County of San Francisco and UMB Corporation, the builder. Settlement entered into September 14, 1998, permitting live/work loft construction to go forward with notice of special restrictions recorded against the deeds of said buildings and amelioration of other environmental impacts.

Williams v. Board of Permit Appeals, et al., San Francisco Superior Court Case No. 987418. The trial was held on July 31, 1997. This case involved one of the most significant residential land use decisions in San Francisco in the last two decades. The case tested the application and enforceability of the Residential Design Guidelines (Proposition M from 1986) which are part of the San Francisco Planning Code. After extensive briefing, including proposed statements of decision from both sides, the court reversed a prior decision by the Board of (Permit) Appeals approving the demolition of a small Victorian house and its replacement with a four-story condominium. The court determined, over the strenuous objections of the City Attorney, the Developers and Joe O’Donoghue’s RBA, that the Residential Design Guidelines are a mandatory part of the Planning Code and that the City has an obligation to determine that projects comply with the Residential Design Guidelines before permits may issue. (See, Statement of Decision issued by Court) The case was tried before Judge Raymond D. Williamson, Jr. Opposing counsel representing the respondents was the San Francisco City Attorney’s Office, Reuben & Alter (now Reuben, Junius & Rose), and Alice Suet Yee Barkley, Esq. (See SF Chronicle story 12-22-97)

Represented San Francisco Tomorrow against the $30 million give away at the Bloomingdale’s project
Illegal demolitions of sound, affordable rent-controlled houses at 324 & 328 28th Avenue
Illegal demolition of 710-10th Avenue
Illegal demolition and out of scale development at 1725 Lake Street
Citizens Alternatives for Bryant Square
3995 Alemany Group opposing inappropriate development Panama Street
Save Poppy Lane-- Fighting the illegal RBA development
Barry & Barbara Deutsch - Fighting destruction of affordable and rent-controlled housing at 690 DeHaro Street
Representing Golden Gate Commons and neighbors fighting the Butterfly Discovery Park
115 Parker Street --Destruction of affordable and rent-controlled housing
Lombard Street Hotel - Fighting oversized development of hotel
Russian Hill Preservation Society-- fighting illegal over-sized development on Green Street
Riley’s Mortuary --Fighting oversized development in Noe Valley
501 Noe Street-- Fighting destruction of affordable rent-controlled housing
2645 Baker Street-- Fighting the destruction of affordable rent-controlled housing
1 Saturn Street --Fighting the destruction of affordable rent-controlled housing
993 Tennessee Street --Fighting illegal and over-sized live/work project
Friends of St. Thomas More --Fighting over-sized planned unit development by the Archdiocese of San Francisco
835 Minnesota Street B Fighting over-sized and illegal live/work development
Russian Hill Community Association-- opposing over-sized development at 1170 B 1180 Green Street
131 Missouri Street Fighting over-sized and illegal live/work development
407 Connecticut Street --Fighting illegal demolition of sound, rent-controlled housing
342 21st Avenue --Fighting the destruction of sound, affordable, rent-controlled housing
539 8th Avenue --Fighting the destruction of sound, affordable, rent-controlled housing

Education Law Cases

University of San Francisco v. European University of America Represented USF in a dispute with EUA over a long term contractual agreement and lease. USF sought to recover sums owing under the agreements and EUA contested those claims and brought counterclaims against USF. Following more than four weeks of hearing in binding arbitration before the American Arbitration Association, USF obtained a judgment in its favor in excess of $260,000, including attorneys’ fees and interest. Ultimately, the amount was confirmed as a judgment and paid in full.

Pacific Power Service Corporation v. University of San Francisco Defended the University in a dispute with an energy service corporation which contracted to maintain, service and overhaul the University’s co-generation project, located on campus. Pacific Power Service Corporation sought recovery in excess of $240,000. Following discovery and intense investigation, USF was able to offset Pacific Power Service Corporation’s claims and to assert claims for refunds and credits. The matter was eventually settled to the University’s advantage in the amount of $70,000, leaving the University with sufficient funding from its companion indemnity claim to fully overhaul and maintain the equipment.

Schoonover v. University of San Francisco Defense of the University and its Bursar in an action brought by a student seeking a temporary restraining order and preliminary injunction based on a complaint for fraud, bad faith, negligent misrepresentation, breach of contract and intentional infliction of emotional distress. Successfully opposed the plaintiff’s motion for preliminary injunction and temporary restraining order against the University and obtained a demurrer to the plaintiff’s complaint. Following these favorable rulings, the plaintiff dismissed all causes of action against the University and its Bursar.

University of San Francisco v. Minority Broadcasting Corporation Prosecuted an action on behalf of the University against a broadcasting company which had breached a contract it had entered with the radio station at the University. The broadcasting company cross-complained against the University on the contract. Following the first day of trial, the parties entered into a stipulated judgment in favor of the University for the full amount of the sums owing to the University under the contracts. Defendant broadcasting company was permitted to make periodic payments to satisfy the judgment.

Personal Injury Cases

Steffani v. Childers, Alameda County Superior Court Case No. 782820-9. This jury trial was conducted from November 2, 1998, to November 23, 1998. Represented the plaintiff in a difficult dental malpractice action on behalf of a patient who had been treated by the defendant dentist for a period of more than 20 years. The case involved testimony from numerous expert witnesses and involved complex and evolving issues on the standard of care in dental malpractice cases. Although the defendant prevailed in a 9-3 verdict, in post-trial interviews many jury members indicated that they had an extremely difficult time reaching a decision and ultimately came down on the side of patient responsibility.

Herbert v. Calvo, San Francisco Superior Court Case No. 981923. This jury trial lasted from June 29, 1998, to July 13, 1998, and was a personal injury action stemming from an auto-bicycle collision. Represented the plaintiff who was hit while commuting to work on his bike. The jury trial was held following a request for trial de novo by defense counsel after a judicial arbitration award in favor of the plaintiff in excess of the defendant’s insurance coverage. Although plaintiff reduced his settlement demand to the amount of the policy limit prior to trial, the insurance company refused to settle the action. Ultimately, obtained a verdict in excess of the insurance coverage of the case and in excess of the arbitration award. The case involved complex issues of accident reconstruction and medical testimony. The case was tried before the Honorable John Dearman.

General Business & Contract Cases

Graves v. Fayette Energy Corporation, et al., San Joaquin County Superior Court Case No. 215492 (consolidated with 215493). This case was tried to a jury before the Honorable Kenneth Ferguson beginning on November 14, 1990, through January 24, 1991. Plaintiff’s complaint sought rescission, restitution and damages in connection with her purchase of three electricity-generating wind turbines in 1983. Served as sole defense counsel on behalf of Fayette Manufacturing, Inc. As evidenced by the length of the trial, the matter was an extremely complex case concerning the technical aspects of electrical turbine energy generation, fraud, breach of contract and an accountant professional liability claim. The jury returned a verdict in favor of the defendants 11-1.

Coach Management, Inc. v. ITT Industrial Credit Company, San Francisco Superior Court Case No. 865603. This was a case tried to the court the Honorable Thomas Dandurand presiding on March 20, 1989. Sole trial counsel on behalf of defendant ITT Industrial Credit Company. Plaintiff was represented by George M. Carr, Esq., Carr, Smulan & Hartman. The case was a contract financing dispute which involved the assignment of the loan entered by the plaintiff/debtor and the subsequent objection thereto. Prevailed and recovered on the cross-complaint under the terms of the loan contract as well as attorneys’ fees and costs under the contract.

Children’s Hospital Medical Center, Northern California v. State Farm Mutual Automobile Insurance Co., et al., Alameda County Superior Court Case No. 586611-9. Matter was tried to the court between September 28 and October 7, 1987, the Honorable Richard A. Haugner presiding. Sole trial counsel on behalf of plaintiff Children's Hospital Medical Center, defendant was represented by Haim, Johnson, MacGowam & McInerney. Plaintiff Hospital sought to enforce an assignment of insurance benefits made by a patient upon entering the hospital seeking medical care for an injured five-year-old boy. Case involved issues of contract law and, in particular, the creation of an assignment of benefits under a contract.

Securities Cases

Merrill Lynch v. Cooper (2003) Fresno County Superior Court Case No. 03 CECG 02312 SJK. Complaint for Injunctive Relief, Breach of Contract, Misappropriation of Trade Secrets, etc brought by Merrill Lynch against departing broker and new firm RCB Dain Rauscher. Ex Parte Application for TRO, OSC RE Preliminary Injunction and for early discovery heard on July 2, 2003. Court denied all claims brought by Merrill Lynch against broker.

Wells Fargo Securities Inc. v.Sutro & Co., Inc., et. al. (2001) NASD Case No. 01-00549. Wells Fargo’s claims against Sutro and Reg. Rep. Laughton were heard by an NASD panel over three days in January 2002. Panel unanimously denied all claims for injunctive relief and compensatory damages, forum fees and costs assessed against claimant Wells Fargo.

Fenton v. Paine Webber (2000) NASD Case No. 00-00214. Customer complaint compelled to arbitration from Superior Court. Allegations of breach of fiduciary duties, “failure to know”, etc. Matter settled on the eve of arbitration for “nuisance” value.

Berger Barnett Investment Partners v. Pacific Exchange, Inc., et al., (1999) Case No. PCX199.04. Represented Berger Barnet Investment Partners in their appeal and challenge to an order from the Pacific Exchange "delisting" Amazon.com as an option on the exchange. Obtained an order reversing the decision of the Pacific Exchange Options Listing Committee and reinstating Amazon.com as a tradable equity option. Hearing held before the Board Appeals Committee on January 12, 2000.

Berger Barnett Investment Partners v. Pacific Exchange, Inc., et al., Case No. PCX199.04. Represented Berger Barnet Investment Partners in their appeal and challenge to an order from the Pacific Exchange "delisting" Amazon.com as an option on the exchange. Obtained an order reversing the decision of the Pacific Exchange Options Listing Committee and reinstating Amazon.com as a tradable equity option. Hearing held before the Board Appeals Committee on January 12, 2000.

Thomas White & Company v. Robert Thomas Securities, et al., National Association of Security Dealers No. 92-03263. This was an action filed in the superior court which was compelled to binding arbitration before the National Association of Securities Dealers. Represented respondent Robert Thomas Securities as well as four individual defendants who had departed from Thomas F. White & Company and joined competitor Robert Thomas Securities. The matter consumed ten days of hearing between August 3, 1993, and October 8, 1993. Thomas F. White brought charges of unfair trade practice, misappropriation of trade secrets, fraud and deceit, breach of contract and conversion. The arbitrators rejected all claims brought by Thomas F. White and issued an award to the individual defendants on their counter claims because of Thomas F. White’s withholding of commissions and due to violations of California’s Unfair Competition Law.

Policy/Procedure Matters

Policy/Procedure Matters Assisted institutions of higher learning and other clients in creating or updating policies and procedures which include:

Public Safety Manual – Security Issues
Contract review procedures for institutions and entities
Policies and procedures for legal audit of departments and entities
Copyright and photocopy policies
First Amendment freedoms and responsibilities policies
Environmental law issues and audits
ADA issues and policies
Employee and Labor related matters
Loan collection policies and procedures
Intellectual property policies

Representative Cases