# Contractor convicted in cave-in death sues city for libel



## mark handler (Dec 19, 2016)

Milpitas: Contractor convicted in cave-in death sues city for libel 
http://www.mercurynews.com/2016/12/...nvicted-in-cave-in-death-sues-city-for-libel/
Richard Xin Liu, owner of a Fremont-based general construction firm who was convicted last year of involuntary manslaughter in connection with the cave-in death of worker Raul Zapata Mercado, 36, of Zacatecas, Mexico, at a home-build site in the Milpitas hills nearly five years ago, has sued the city for allegedly making libelous statements to the press following that fatality.
According to court documents obtained by this newspaper, the lawsuit alleges Keyvan Irannejad, Milpitas’ chief building official, told the San Jose Mercury News in 2014 that Liu and his construction firm knowingly ignored a stop-work order issued by the city.
Filed in September 2015, the lawusit contends Irannejad’s statements to the Mercury News were false and seeks a jury trial and a finding for damages against Irannejad and the city.
“We’re in settlement discussion right now,” Walnut Creek-based lawyer Michael Reiser, who represents Liu, told this newspaper. However, Reiser would not discuss further details of the case.
Milpitas City Attorney Christopher Diaz told the Post an outside law firm appointed by the Association of Bay Area Governments is handling the case. That firm, Leone & Alberts of Walnut Creek, could not be reached for comment by press time.
On Jan. 28, 2012 at about 10:30 a.m., the Milpitas Building and Safety Department and emergency personnel responded to a call related to the fatal accident at 814 Calaveras Ridge Drive, where U.S. Sino Investments was hired to build a 5,800-square-foot home inside the gated community.
Three days earlier, on Jan. 25, a Milpitas building inspector issued a stop-work notice on the site after seeing moist dirt following heavy rains and a retaining wall that wasn’t shored up. The stop-work order required a soil engineer review of the site to determine whether any action was needed and to provide recommendations for shoring. A city inspector visited the next day and said crews were on the site but not working at the time, according to the city.
On the day of the cave-in, however, workers were back on the job.
Mercado, who left his wife and three daughters in Mexico to do construction work in the Bay Area, was crushed inside the trench after the unstable soil slid, unimpeded by the trench walls, according to subsequent investigations by Cal/OSHA and other agencies.
In May 2015, Liu, formerly of Fremont, and project manager Dan Luo, of Fremont, were convicted of involuntary manslaughter in connection with the fatal cave-in. The Santa Clara County District Attorney’s Office contended both men were criminally negligent when they proceeded with construction of the home despite the city’s stop-work order.
At the time, prosecutors described the case to the Mercury News as “a rare trial aimed at holding an employer criminally responsible for the death of an employee on the job.” They also contended during a jury trial that Luo was unqualified to manage the work site because he had no background in construction.
Despite the stop-work order, the district attorney’s office asserted Liu and Luo were pressured to stay on schedule to retain their client, who had committed $700,000 for a dream home and wanted to keep the money flowing. Even after a subcontractor walked off the job for not getting paid, work continued, leading to Mercado’s death, prosecutors said.
Besides the criminal convictions, Cal/OSHA fined the company $168,175 for an array of safety violations and stated the instability and subsequent cave-in risk prevented rescuers from recovering Zapata’s body for several days.
Liu was in China when he and Luo were indicted by a grand jury in July. In addition to the involuntary manslaughter conviction, Luo was convicted of three felony labor code violations for causing the death of an employee through negligence.
In August 2015, both men were sentenced to two years in prison.
According to the lawsuit, Liu — who was released from prison in May — claims that at the time of the cave-in Irannejad and another Milpitas building official, Gerardo Amador, “conspired…to alter and falsify the official records of the City of Milpitas Building and Safety Department” against him to cover up their mishandled response to the accident.
“Thereafter, (the defendant) made a false statement to the press, that he knew to be untrue, namely, that the plaintiff’s herein, prior to the accident, ignored a second stop-work order, thereby causing the death of construction worker, Raul Zapata Mercado,” the lawsuit reads.
Liu’s lawsuit contends Irannejad’s statements to the press “evidenced a reckless and callous disregard for, and deliberate indifference to” Liu’s rights and reputation.
“Plaintiffs’ have suffered harm to their reputations, loss of income and severe emotional distress,” the lawsuit reads.
Originally, Liu’s lawsuit was filed in Contra Costa County Superior Court in Martinez because Irannejad resides in that county. But in July, Superior Court Judge George Spanos granted Irannejad and the city’s motion to transfer the case to Santa Clara County.
“The court agrees (that) Santa Clara County is the proper venue for this action,” the judge’s ruling states. “The fatal accident occurred in Santa Clara County. Plaintiffs were prosecuted there, and one plaintiff, Liu, was found guilty of involuntary manslaughter in Santa Clara County. The alleged defamation, which is the gravamen of this lawsuit, occurred there when Irannejad made allegedly false statements about plaintiffs to the San Jose Mercury News.”
The judge also ordered the plaintiffs to pay for the cost to transfer the case. According to court staff, there has been no further action on this case since the judge ordered a change of venue for this lawsuit.


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## ICE (Dec 19, 2016)

The article states that the inspector saw wet ground and determined that it was not stable.  So it is safe unless it gets rained on?  And look at the re-bar sticking up without impalement protection.

_"Mercado, who left his wife and three daughters in Mexico to do construction work in the Bay Area, was crushed inside the trench after the unstable soil slid, unimpeded by the trench walls, according to subsequent investigations by Cal/OSHA and other agencies."
_
My department has decided that we will not enforce OSHA regulations beyond our own personal protection.  So unless there is a reason to place myself in an unstable trench, I am not supposed to get involved.  So let's assume there is a reason for me to be in the trench.  What then?  Do I issue a stop work order?  The answer is no; I am to refuse to enter the trench until it is made safe.

The reality of construction work is that people are in dangerous conditions.  It happens a lot.  When it becomes too dangerous it is up to the individual worker to say no.  I encountered that as an employee and never lost a job because I said no.  That's not the case with illegal aliens.  If they say no they stand a chance of losing the king's ransom that they send to Mexico.  The things that I have seen illegals doing boggles the mind. 

I can tell you that on more than one occasion the workers thanked me for stopping the work.  That includes foremen.  I have been told that they complained to the company owner and had been informed that there is a line of guys waiting for their job.

The city of Milpitas issued a stop work order for the sole purpose of protecting the City.  Had the motive been to protect the workers, the City would have monitored and enforced the stop work order.

Why does nobody contact OSHA until the accident is old news?


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## Pcinspector1 (Dec 19, 2016)

I wonder how much this rascal cost? some of you may have seen them used. You set a couple on a few vertical pieces of re-bar and lay a 2x4 across the numerous re-bar up-rights. Keeps you from investing in boat load of orange mushrooms. Would come in handy on this project.


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## conarb (Dec 19, 2016)

I see people are starting to adopt activist tactics, blackmail by suing for no good reason and settling since it costs so much to litigate a case. just look at how successful handicapped people have been using this tactic.



			
				Mercury News said:
			
		

> “We’re in settlement discussion right now,” Walnut Creek-based lawyer Michael Reiser, who represents Liu, told this newspaper. However, Reiser would not discuss further details of the case.
> Milpitas City Attorney Christopher Diaz told the Post an outside law firm appointed by the Association of Bay Area Governments is handling the case. That firm, Leone & Alberts of Walnut Creek, could not be reached for comment by press time.



Why is "the Association of Bay Area Governments" paying to defend the city?



			
				Wikipedia said:
			
		

> As an advisory organization, ABAG has limited statutory authority. It is governed by its General Assembly, which consists of an elected official (delegate) from each city and county which is a member of the organization. The General Assembly determines policy, adopts the annual budget and work program, and reviews policy actions taken or proposed by the organization's Executive Board. A majority of city and county votes are required for action.
> 
> ABAG was formed in 1961. In 1970, it issued its Regional Plan, 1970-1990, the Bay Area's first comprehensive regional plan. The document outlined a regional open space plan, regional information systems and technology support, criminal justice and training, water policy and waste collection, and earthquake hazards and planning.
> 
> ...



It is the unelected agency driving the sustainability agenda of the United Nations, it has been loaded with fraud since it's inception, it's first Director was a guy named Tom Truax, he was convicted of embezzling money, they recently bought a large expensive building in San Francisco to bring all other regional agencies under one roof and it's direction, the local paper did an exposé of corruption in those transactions, but they keep going, but defending cities is too much.


¹ https://en.wikipedia.org/wiki/Association_of_Bay_Area_Governments


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