April 2018 Volume 18, Issue 3
Oakland City Attorney Barbara J. Parker 
News from the Oakland City Attorney's Office
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This month, the City Attorney's Office secured a court victory prohibiting a construction debris hauling company from discharging dangerous dust into the surrounding West Oakland neighborhood.
 
In January, I filed a public nuisance lawsuit against hauler Santos Engineering, and this month the court issued an injunction barring Santos from hauling any debris to or from its warehouse on Poplar Street in West Oakland.
 
West Oakland has suffered from high levels of pollution in the air, water and soil. Children living near freeways in Oakland are hospitalized for asthma at 12 times the rate of children in Lafayette, and West Oakland residents suffer a 2.5 times greater lifetime risk of cancer compared to the Bay Area as a whole. Historically these residents have been disproportionately African American, other people of color and low income. Attorneys in our Office's Community Lawyering & Civil Rights and Neighborhood Law Corps units are prioritizing environmental justice cases, especially in Oakland neighborhoods that have been disproportionally contaminated for generations.
 
Also in this month's newsletter: the Oakland City Council adopts an ordinance to protect tenants when landlords initiate move out negotiations; the City launches a new and improved public records request system; our response to the latest attack on Oakland from the U.S. Department of Justice; Major Case Updates; and the City Attorney in the Community.
 
As always, I look forward to your questions and comments about the work we are doing on behalf of the people of Oakland.   
  Barbara J. Parker
 Oakland City Attorney
 
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City Attorney secures injunction against debris hauling company that blew dangerous dust into West Oakland neighborhood
 
Santos Engineering operated near homes and a park in open violation of City laws

The City Attorney has secured an injunction to stop unpermitted operations of a West Oakland debris hauling company that discharged dangerous dust into the surrounding neighborhood.
 
In January, I filed an environmental justice lawsuit against Santos Engineering and the business/property owner Moacir Santos. The lawsuit was developed and prosecuted by the Affirmative Litigation, Innovation & Enforcement Division of my Office. The lawsuit charged the company with intentionally blowing dust from construction debris into the neighborhood, allowing contaminated water to flow into the City's storm water system and operating in open violation of Oakland zoning laws.
 
On April 3, Alameda County Superior Court Judge Brad Seligman granted the City's motion for a preliminary injunction barring Santos from hauling any debris to or from its warehouse at 2850 Poplar Street. The injunction also orders Santos to stop any unpermitted and/or unlicensed operations.
 
Unfortunately, since that date, witnesses including City inspectors and a neighbor, have seen trucks leaving and entering the warehouse - including one truck with a full load of debris. Our Office sent notice to the defendants to meet and confer regarding violations of the injunction.
 
We are closely monitoring Santos' operations and will submit evidence to the court to hold defendants in contempt if necessary. West Oakland neighborhoods, and in particular children, African American and low income residents, have long suffered disproportionately from pollution in the air, soil and ground water; this has taken a toll on the health of West Oaklanders. It is unconscionable and contemptible for anyone to try to profit from poisoning the neighborhood, including the children and adults who live there.
 
In 2017, Santos Engineering moved into the warehouse on Poplar Street, near homes, a playground and a farm in West Oakland. The company began hauling construction debris from jobs sites around the Bay Area and breaking down the debris inside the warehouse. These activities violated Oakland's zoning laws, which require a Conditional Use Permit to conduct industrial activities outside when the activities are near a residential area.
 
Handling and breaking down construction debris creates vast amounts of dust that potentially contains asbestos or other hazardous materials. Instead of mitigating the harm from these activities, Santos knocked out parts of the warehouse ceiling and installed a fan to blow dust directly outside of the property and into the surrounding neighborhood. The company also illegally tapped into an East Bay Municipal Utility District fire hydrant and allowed contaminated water to run into the City's storm water system.
 
Resident Barbara Johnson and her two grandchildren live directly across the street from Santos Engineering's warehouse in West Oakland. Since Santos began operations, Johnson said the family has been forced to keep all their windows and doors closed and have suffered persistent coughing, eye/throat irritation and lightheadedness, which they attribute to the dust generated by the business.
 
Santos claimed that he was fixing violations identified by the City and other agencies, and the business applied for a Conditional Use Permit that the City ultimately rejected this month. However, neighbors still complained about dust and other nuisances generated by the business.
 
And the City had an additional reason to mistrust Santos' representations about his business activities. During site inspections with City employees and throughout the Conditional Use Permit application process, a person speaking on behalf of Santos Engineering represented himself as "Jim Wolf." After filing this lawsuit, the City learned that Mr. "Wolf' is really James Philip Lucero, who recently was convicted in federal court of felonies related to illegal dumping of construction debris in federal wetlands.
 
In February, a federal jury convicted Lucero of three counts of violating the Federal Clean Water Act for illegally discharging pollutants into protected wetlands. According to a press release from the US Attorney's Office, Lucero caused a minimum of 1000 industrial-sized truckloads of construction debris and fill material to be dumped on private property containing federally-protected wetlands and other waters in Newark, CA.
 
 
Warehouse interior
Santos' warehouse on Poplar St.
 
Oakland City Council passes tenant rights ordinance co-sponsored by City Attorney

 

Tenant Move Out Ordinance requires that landlords notify tenants of their rights and grants tenants right to reconsider agreements

 

On April 17, the Oakland City Council adopted an ordinance sponsored by City Attorney Barbara J. Parker, City Council President Pro Tempore Abel Guillén and Councilmember Dan Kalb to protect tenants when landlords initiate move out negotiations.


The Council adopted the Tenant Move Out Ordinance (TMOO), on Tuesday night. The ordinance, which will take effect May 1, 2018, improves the fairness and transparency of move out negotiations and agreements. The ordinance requires that property owners advise tenants in writing of their rights when the owner seeks to negotiate a move out. The ordinance grants tenants the right to reconsider and rescind move out agreements in specified circumstances and clarifies that the City's minimum relocation payment amounts apply to move out agreements.

As Oakland's housing crisis continues and grows, the City is receiving reports that low-income tenants have signed exploitative move out agreements. Some of these agreements fail to cover even the relocation costs; other agreements require that tenants give up their legal rights or options to return to the unit. Tenants who inadvertently waive these rights face the nearly impossible task of finding affordable housing at a comparable rent, because state law allows property owners to rent vacant units at market rates, which in many cases are astronomical.
 
As Oakland struggles with a historic housing crisis, some unscrupulous landlords are using deceptive or coercive tactics to get rid of tenants. This new law will require that landlords advise tenants of their rights so they are in a position to advocate for their rights; and the law will help the City identify bad actors who are attempting to force tenants out of their homes under false pretenses.
 
The ordinance requires that landlords give tenants information including the following in writing:
  • A statement that the tenant has the right to refuse to enter into a move out agreement, and the property owner cannot retaliate against them for this decision
  • A statement that the tenant may choose to consult with an attorney before entering into a move out agreement or move out negotiations
  • A statement that the tenant may rescind the move out agreement for up to 25 days (if the tenant has not already moved out)
  • A description of the tenant's eligibility for relocation payments
  • Information about when tenants have rights to return to their homes under state and local law, as well as a statement that waiver of rights to return may increase the value of move out agreements, and
  • A statement that property owners who fail to comply with the ordinance may be subject to more significant penalties if the tenant is elderly, disabled or catastrophically ill, and a space for tenants to indicate whether they fall within any of these categories as defined in the ordinance.
Under the new law, property owners also are responsible for submitting notifications of their intent to enter into move out negotiations - as well as copies of any fully-executed move out agreements - to the City's Rent Adjustment Program.
 
Additionally, owners must give tenants a copy of the agreement in the language in which it was negotiated or in English, Spanish or Chinese, depending upon the language(s) in which the tenant is proficient. According to data from the 2000 census, more than 26% of Oakland residents speak either Spanish or Chinese at home.
 
The ordinance also requires that property owners state under penalty of perjury whether or not they have recently communicated to the tenants that they intend to recover the unit under Oakland's Just Cause Ordinance and on what grounds. Responses to this question will aid the City in identifying property owners who may be coercing tenants to accept move out agreements through misrepresentation or intimidation.

The ordinance does not apply to move out agreements that are negotiated or agreed to during the course of an unlawful detainer (eviction) proceeding.


Introducing NextRequest, the City's new on line public records request system 
 
On March 19, the City launched the next phase of its popular on line public records request system. The new system - NextRequest - updates and improves the City's groundbreaking RecordTrac system which the City introduced in 2013.
 
You can find the new system here: https://oaklandca.nextrequest.com/requests/new
 
Oakland created its award-winning records request system five years ago to increase transparency of City operations, allow the public to track progress of requests and provide a searchable public archive of all requests and the public records produced by the City. The system was designed to give the public a straightforward and efficient way to find records and public information, and hold the City accountable for complying with the state Public Records Act and other open government laws.
 
The response to the system has been very positive. Since the launch in 2013, the City has received more than 26,300 requests (and counting), and has published more than 13,000 records on line. The system won the GovFresh App Award for 2013 and received recognition from numerous publications nationwide.
 
Like all prototypes, RecordTrac needed additional development. Over the course of about 18 months, we continued to work with its creators and City staff to develop several key features and enhancements. Some of the new features are:
  1. Internet Explorer browser compatibility.
  2. Improved administrator panel (i.e. user management, department management).
  3. Bug fixes.
  4. Backup of data.
  5. Offline request submissions (i.e. the ability to manually enter requests received offline).
  6. Adding and removing support staff to support a request.
  7. Enhanced search capabilities.
As a result, the new NextRequest system is easier to use and more efficient for both requestors and City staff. 

Thank you to the system creators and City staff, especially Mark Forte in the City Attorney's Office, for your diligent work on this project.

Again, you can check out the new system here: https://oaklandca.nextrequest.com/requests

Please don't hesitate to let us know what you think.

Response to U.S. Department of Justice compliance letter regarding Oakland's sanctuary city policy
                        
On April 13, the U.S. Department of Justice ("DOJ") sent a letter to Mayor Schaaf asking for information regarding whether Oakland's sanctuary city policy complies with federal immigration law, and asserting the feds' right to deny future federal grant funding for law enforcement and to claw back funds Oakland has received for noncompliance.
 
That same day, I issued the following response to the DOJ's letter:
 
"We are reviewing the letter from the Department of Justice. Oakland is proud to be a sanctuary city and we are in compliance with federal immigration law. Our sanctuary city policy encourages the community to work with police and helps law enforcement to investigate and prevent crimes in our city. We will continue to focus our resources on fighting crime, rather than tearing apart Oakland families and making our city less safe.  We will respond to the letter at the appropriate time."
 
Police chiefs across the country say that sanctuary city policies help law enforcement by encouraging witnesses to report crimes and work with police.
 
Oakland has signed onto amicus briefs in a number of cases challenging the administration's authority to withhold funding from Oakland and other sanctuary cities.
 
I will continue to provide updates in this newsletter about legal and other actions that the City of Oakland initiates, joins or supports to challenge the federal administration's ongoing assault on and decimation of constitutional, civil and human rights.
  
Major Case Updates
 
Progressive Solutions, Inc. v. City of Oakland, et al. , United States District Court Case No. 16-cv-04805-SK

We are pleased to report that on April 25th the Federal District Court granted the Defendants' motion for summary judgment in Progressive Solutions, Inc. v. City of Oakland, et al. and entered judgment in favor of the City and its former employee Michael Stanley.  Plaintiff Progressive Solutions ("PSI") initially filed this lawsuit in Alameda County Superior Court in January of 2015; the case was removed to Federal Court in 2016 after the plaintiff filed an additional federal cause of action.  Plaintiff has until May 25, 2018 to file its notice of appeal of the judgment.
 
PSI provided business tax software support and licenses to the City from 2007 to 2014. 
 
When the contract expired, PSI was outraged that the City did not agree to a new contract, or to extend the prior contract. The company filed suit in Alameda County Superior Court alleging that the City breached its contract with PSI and misappropriated PSI's trade secret information.  PSI also sought damages against the City's former employee Michael Stanley contending that he also misappropriated PSI's trade secrets.  The City is entitled to recover its attorneys' fees and costs.
 
Federal Magistrate Sallie Kim ruled that the City did not breach the contract with PSI, and that Mr. Stanley and the City did not misappropriate PSI's trade secrets.
 
This is an important victory for the City. It serves notice that Oakland will not allow companies to use the courts to bully the City into providing them contracts.
  
City Attorney in the Community
                      
On April 25, the League of Women Voters Oakland held its 27th annual All-City Luncheon at the Scottish Rite Center.  
 
The League hosts this event every year to present the Making Democracy Work Award to individuals and organizations that have performed exceptional services to improve lives of Oaklanders.
 
This year the League presented this award to Centro Legal de la Raza, a comprehensive legal services agency that protects and advances the rights of immigrant, low-income and Latino communities by providing bilingual legal representation, education and advocacy.
 
The City Attorney's Neighborhood Law Corps received the award in 2010.
 
My Office is partnering with Centro Legal on a number of cases, including the lawsuit we jointly filed in March against a landlord who attempted to illegally increase his tenants' rent by pretending he had moved into the downstairs unit of his duplex.
 
This year's key note speaker was the renowned author and sociologist Arlie Russell Hochschild. Her latest book, "Strangers in Their Own Land," is a New York Times bestseller and a finalist for the National Book Award. The book looks at a community in Louisiana to understand why it supported the Republican candidate in the last presidential election.
 
Thanks to the League for another inspiring annual luncheon event, and for all the work the League does on behalf of Oakland and its residents to educate and empower voters.
  
League of Women Voters Oakland
From left to right: Executive Assistant to the City Attorney Jamie Smith, City Contract Compliance Officer Ernestine Nettles, City Auditor Brenda Roberts, City Council President Pro Tempore Abel Guillén, City Attorney Parker, Chief Assistant City Attorney Doryanna Moreno, City Councilmember Dan Kalb, City of Oakland Community Action Program Manager Estelle Clemons and Special Counsel Maria Bee, head of the City Attorney's Affirmative Litigation, Innovation & Enforcement Division.

Phone: (510) 238-3601

Email: info@oaklandcityattorney.org

 

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