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Pleasanton-based balcony builder seeks restraining order against prosecutors

Company says it 'anticipates forthcoming litigation related to the accident'

The company that built a Berkeley apartment complex where six people died earlier this month when a balcony collapsed is seeking a temporary restraining order to prevent the Alameda County District Attorney's Office from testing evidence without company representatives being present.

Segue Construction, which completed its construction of the Liberty Gardens complex at 2020 Kittredge St. in early 2007, said in its application for a restraining order that it will suffer irreparable injury if the district attorney's office isn't stopped from "pursuing further destructive testing and invasive investigation" without providing the company with reasonable notice and the opportunity to participate.

The company's legal move comes only a few days after District Attorney Nancy O'Malley announced last Thursday that she has launched a criminal investigation into the collapse of the balcony during a party at 12:41 a.m. on June 16.

Of the six people killed, five were Irish nationals. The sixth victim was 22-year-old Ashley Donohoe of Rohnert Park. Seven other people were seriously injured in the balcony collapse.

The balcony that collapsed was left hanging straight down along the building's face and was removed the day of the collapse.

Berkeley city officials also ordered the removal the next day of the balcony one floor below the collapsed balcony because it was damaged and they said it posed a public safety risk.

Both balconies are now in the custody of law enforcement officials.

Segue said in its application for a restraining order that it wants to bar district attorney's office investigators from "inspecting, altering, testing, examining, scrutinizing, probing, weighing, exploring or investigating" the balconies without the company being present.

Segue, which is based in Pleasanton, said evidence from the balconies is important because the company "anticipates forthcoming litigation related to the accident."

Segue said, "Given the serious nature of the potential and anticipated future litigation, evidence is crucial to determining the cause or causes of the accident."

The company asked Alameda County Superior Court Judge Evelio Grillo to issue a temporary restraining order today but Grillo postponed a hearing on the issue until Wednesday because the district attorney's office said it didn't receive notice about the matter until this morning.

District attorney's office spokeswoman Teresa Drenick said she has no comment on whether her office will oppose Segue's request that it be present when the balconies are examined.

In its filing, Segue said it doesn't seek to prevent the district attorney's office from investigating the balconies and that it "merely requests the opportunity to be present, along with its consultants, for any investigation or destructive testing."

The company said, "As the potential harm to Segue clearly outweighs any minor annoyance in having to provide notice to Segue, the relief sought is appropriate and narrowly tailored to ensure the protection of all parties' rights moving forward."

In a memorandum of points and authorities, Segue criticized the city of Berkeley for ordering Belfor Property Restoration to remove and completely disassemble and dissect the third floor balcony directly below the balcony that collapsed.

Segue said, "The balcony at unit 305 could have been used for accident reconstruction purposes to determine the source and cause of water intrusion" on the balcony at unit 405.

The company said, "Evidence spoliation as a result of destructive testing may have already occurred. Accordingly, Segue's concerns are well-founded."

— Bay City News Service

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