This month's newsletter reports on (1) the environmental justice lawsuit my Office recently filed to protect West Oakland residents from dangerous dust; (2) Lead paint lawsuit victory; (3) Court of Appeal upholds the City's fines against Suprema Meats, a local meat distributor; (4) Oakland and other cities fight back against the federal government's attack on Dreamers; (5) City Attorney's Annual Report for Fiscal Year 2016-17, and; (6) City Attorney's Office receives Alameda County Bar Association's 2018 Distinguished Service Award for Law Firm of the Year.
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
City Attorney files environmental justice lawsuit against Santos Engineering for intentionally blowing dangerous dust into West Oakland neighborhood
In January, my Office sued Santos Engineering, a West Oakland debris hauling company, to stop it from intentionally discharging massive amounts of dangerous dust that potentially contains asbestos and/or other hazardous materials into the surrounding neighborhood and City storm drains.
The lawsuit charges Santos Engineering with intentionally blowing dust from construction debris into the neighborhood, covering vehicles and neighboring residential properties, washing the dust into the City's storm water system and operating in violation of Oakland zoning laws.
West Oakland neighborhoods have suffered disproportionately from pollution in the air, soil and ground water, and that has severely impacted the health of West Oaklanders, particularly children. Oakland averages 90 times more diesel pollution than the rest of the state, according to the nonprofit Pacific Institute, and according to the Alameda County Health Department, West Oakland residents' life expectancy is nine years shorter than other Californians' life expectancy due to poor air quality. It is unconscionable for Santos, or anyone else for that matter, to deliberately aggravate the environmental ills West Oaklanders already suffer and threaten the wellbeing of the children who live near the company's site.
In 2017, Santos Engineering moved into a warehouse at 2850 Poplar Street that is near homes, a playground and a farm in West Oakland. The company hauls construction debris from job sites around the Bay Area to the warehouse where it stores, sorts and breaks down large amounts of materials, potentially including materials that are known sources of asbestos.
Handling and breaking down construction debris generates a high volume of dust. Instead of complying with its legal and moral obligations to mitigate 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 illegally tapped into an East Bay Municipal Utility District fire hydrant and caused water contaminated with dust to run into the City's storm water system. Additionally, the company routes its trucks down residential streets where commercial trucks are prohibited by City law. Santos continues to operate in open violation of Oakland's zoning laws, which require a Conditional Use Permit to conduct industrial activities near a residential area.
Neighboring residents and businesses have complained about dust covering cars and homes, including a grandmother and her two grandchildren who live directly across the street from the property. Since Santos began its operations, the family members have 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 propelled from the warehouse into the neighborhood.
The City Attorney's Neighborhood Law Corps and Community Lawyering & Civil Rights units jointly filed a lawsuit against Santos on January 18th asking the court to declare that the company's operations at the property are a public nuisance, and issue an injunction commanding Santos to immediately cease the nuisance activity. The lawsuit also seeks punitive damages and other penalties, fees and costs.
California Supreme Court denies review of lead paint case judgment holding lead paint companies responsible for cleaning up toxic lead paint in our homes
On February 14, the California Supreme Court denied review of a judgment against lead paint companies that held the companies responsible for cleaning up toxic lead paint in California homes.
The Supreme Court denied review of the Court of Appeals' November 2017 decision upholding the judgment requiring the paint companies to pay the cost to clean up lead paint in pre-1951 homes in 10 California cities and counties, including Oakland.
This is an important and critical victory for Oakland families. The lead paint companies have fought to drag this lawsuit out for 18 years; they likely will appeal to the U.S. Supreme Court. The good news is that California courts have made it clear that the companies are accountable for the public nuisance their products caused and continue to cause, endangering the health of our children and families.
In 2000, then-Santa Clara County Counsel Ann Ravel filed a lawsuit against major paint companies to hold them accountable for cleaning up lead paint, which when ingested by children and pregnant women can act as a cumulative neurotoxin and may result in irreversible brain damage. Oakland and eight other California cities and counties subsequently joined the case.
Despite widespread industry knowledge of the hazard, the companies aggressively marketed lead paint for residential use until it became unlawful to do so. As a result, nearly every home built before 1978 contains lead paint hazards.
The Supreme Court's denial of review evidences that major companies cannot knowingly harm Californians with impunity. Lead paint is prevalent in Oakland homes and disproportionately affects African American and other communities of color and low-income communities.
In this case, the defendants knew they were selling a product that poisoned children, yet they continued to sell it and market it as safe.
Court of Appeal's November decision
upheld the 2014 trial court judgment, which held defendants (ConAgra Grocery Products, DuPont, NL Industries [formerly National Lead Industries] and Sherwin-Williams) liable for creating a widespread public nuisance. The ruling required them to create a $1.15 billion abatement fund to pay for clean-up of the lead paint nuisance.
The Court of Appeal also remanded the case to trial court (Superior Court) for further proceedings to adjust the $1.15 billion abatement fund to an amount sufficient to address the problems lead paint poses in homes built before 1951. That amount will be determined by the trial court.
According to the Centers for Disease Control (CDC) and California's Childhood Lead Poisoning Prevention Branch, lead paint and its degradation into lead-contaminated dust and soil is the primary cause of lead exposure for children who live in older homes. In 2012, the CDC released a report finding that "no safe blood lead level [for lead] in children has been identified." Even at the lowest levels, lead can causes permanent neurological damage to children, decreasing IQs and causing other serious health consequences.
The following jurisdictions are plaintiffs in this case: City of Oakland, Santa Clara County, Alameda County, the City and County of San Francisco, the City of San Diego, Los Angeles County, Monterey County, San Mateo County, Solano County, and Ventura County.
Court of Appeal upholds fines against local meat distributor
Suprema Meats, Inc. vs. City of Oakland, Alameda County Superior Court Case No. RG16803756
On February 13, the California Court of Appeal issued a favorable decision for the City in a case involving fines against Suprema Meats, a local meat fish, and poultry wholesale distributor with a warehouse on 57th Street in Oakland.
The case dates back to October 2014, when Suprema and the City entered a compliance plan to address noise complaints, traffic impacts and unpermitted property improvements. The following summer, the City cited Suprema for 22 violations of the plan based on excessive noise the forklift activity caused at the company's warehouse. An independent hearing officer ordered the company to pay a fine of $9,500 for six violations.
In 2016, Suprema filed a lawsuit challenging the fines. At the end of 2016, the trial court rejected the company's claims and upheld the City's fines. Suprema appealed.
This month, the Court of Appeal rejected Suprema's due process claims appeal and concluded that four of the six citations were supported by substantial evidence. Thus, of the City's citations totaling $9,500, the Court reversed $2,000 and affirmed $7,500. This is an excellent victory for our Office, the City and people of Oakland. It holds Suprema accountable for causing a public nuisance that detrimentally impacts the health and welfare of our residents.
In 2015, Suprema filed a separate breach of contract lawsuit against the City regarding the 2014 Compliance Plan. That lawsuit (Case No. RG15787127) is ongoing, and we are vigorously defending the legality of the compliance plan.
I want to thank and acknowledge Deputy City Attorney Christina Lum for her fine work on this case. She began work on the case when she was a member of the Neighborhood Law Corps, and has continued to handle the case as a Deputy City Attorney
Oakland Fights Back
Oakland is continuing its fight to stop the unconstitutional, discriminatory and inhumane actions of the current federal administration. This new section of our newsletter
provides updates on legal 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.
Batalla Vidal v. Nielsen, U.S. District Court, Eastern District of New York (16-CV-4756)
In 2017, I signed onto a number of amicus ("friend-of-the-court") briefs to support court challenges to federal actions that would harm this country and its people, including Oakland and its residents.
Vidal v. Nielsen
is one of those cases. The lead plaintiff, Batalla Vidal, is gainfully employed and came to this country with his parents when he was seven years old. The lawsuit against the federal government was brought on behalf of "Dreamers," the hundreds of thousands of young people who are participating in the Deferred Action for Childhood Arrivals (DACA) program. DACA, one of President Barack Obama's signature immigration initiatives, offers protection from deportation to qualifying immigrants who were brought to the U.S. as children.
Lead Plaintiff Vidal is joined by Make the Road New York, the National Immigration Law Center and Yale Law School's Worker and Immigrant Rights Advocacy Clinic.
In December 2017, Oakland and 27 other cities and counties signed an
supporting Mr. Vidal's case. Mr. Vidal was born in Mexico and was brought to the U.S. at age 7. Like most Dreamers, he is gainfully employed, makes a positive contribution to his community and knows no other home outside of the U.S.
Last September, Attorney General Jeff Sessions announced that the administration would end DACA on March 5.
However, on February 13, the federal judge presiding over Mr. Vidal's case
issued a nationwide injunction
ordering the Trump administration to keep the program in place.
In his ruling, Judge Nicholas G. Garaufis of Federal District Court in Brooklyn, NY agreed with plaintiffs that the rollback of DACA was "arbitrary and capricious" and therefore an illegal change of federal policy.
The judge's ruling did not mention the plaintiffs' claim that Trump's decision was motivated by "racial animus." But at a hearing in January, the judge sharply criticized the president's "recurring, redundant drumbeat of anti-Latino commentary."
"This isn't ordinary,"
Judge Garaufis said
during the hearing. "In this country, in over 250 years, it's extreme, it's recurrent and it's vicious."
The judge wrote that ending DACA would have "profound and irreversible" consequences, including separation of hundreds of thousands of young people from their families, a massive loss of jobs and "staggering adverse economic impacts" that could include up to $800 million in lost tax revenue.
This was the second injunction issued by a federal judge to maintain DACA. Last month, Judge William Alsup of the Federal District Court in San Francisco ruled in a separate lawsuit that the government must maintain the program.
On February 26, 2018 the U.S. Supreme Court declined to consider the federal administration's appeal which would have bypassed the U.S. Court of Appeals for the Ninth Circuit. The administration must proceed through the normal appellate process and the March 5 termination date for DACA is off the table.
The decision to end this successful program and disrupt the lives of so many stands out as especially cruel and reckless, even for the Trump administration. I will continue to update you about this and other important cases.
City Attorney's Annual Report for Fiscal Year 2016-17
Every year since the beginning of this century, the City Attorney's Office has published an Annual Report to show our residents, businesses and taxpayers the services we provide on their behalf.
This report details litigation trends, financial results and special projects and initiatives my Office undertook during the last fiscal year. The report also provides comprehensive information about the work of each division and unit in the City Attorney's Office.
This year's highlights:
- The City Attorney's Office recovered more than $2.26 million that can be used for critical services like police, fire and infrastructure (streets, etc.).
- In accord with our mission to protect the rights and interests of all Oaklanders, we joined other municipalities, counties and states in challenging the current federal administration's unconstitutional, discriminatory and inhumane actions.
- We prosecuted abusive landlords to protect and uphold tenants' rights, and we continued prosecuting lawsuits against Monsanto Company for contaminating Oakland waterways and against Wells Fargo bank, our country's largest mortgage lender, for predatory and racially discriminatory mortgage lending practices against African American and Hispanic borrowers.
- And we reduced the amount the City paid to resolve claims and lawsuits by millions of dollars (see chart below). In fact, this FY's total payouts were the lowest amount since the City Attorney began issuing Annual Reports in FY 2001-02.
For detailed information about the work of the City Attorney's Office during this fiscal year, please read our full report.
|City Attorney in the Community
Alameda County Bar Association honors Oakland City Attorney's Office as Law Firm of the Year
I am delighted to report that last month the Oakland City Attorney's Office received the 2018 Distinguished Service Award for Law Firm of the Year from the Alameda County Bar Association (ACBA).
I was honored to accept the award on behalf of my Office at the ACBA's annual awards dinner on January 18 at the stunning Rotunda Building in downtown Oakland. This year's dinner featured a stirring keynote speech by civil rights attorney Drucilla Ramey. The other Distinguished Service Award winners this year are Alice Cheng (New Lawyer), Michael Shklovsky (Lawyer), Tara Desautels (Judge) and the Social Justice Collaborative (Community Organization).
Thank you to the ACBA, to the board of directors and to CEO Tiela Chalmers for recognizing the City Attorney team with this award. We deeply value this recognition and honor by our peers in the ACBA. Forward!
Oakland City Attorney Staff (rows from left to right): Supervising Deputy City Attorney Colin Bowen, Deputy City Attorney Pelayo Llamas, Deputy City Attorney Michelle Meyers, City Attorney Barbara Parker, Special Counsel Maria Bee, Deputy City Attorney Jason Allen, Chief Assistant City Attorney Otis McGee, Supervising Deputy City Attorney Kim Bliss, Deputy City Attorney Christina Lum
Attorney & ACBA Board Member Vincent Tong, City Attorney Parker and Hon. George Hernandez, former presiding judge of the Alameda County Superior Court
Civil rights advocate Dru Ramey, City Attorney Parker and Alameda County Superior Court Judge Wynne Carvill
Phone: (510) 238-3601