News from Oakland City Attorney
Barbara J. Parker
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April-May News:
- City Attorney Defends Progressive City Hazard Premium Pay Law From Corporate Challenge
- City Attorney Wins Key Motion in Lawsuit Clarifying that City’s Adopt-a-Spot Program Was Not the Cause of Pedestrian Accident
- City Attorney’s Office in Trial: Seeking to Hold Abusive Landlords and Opioid Manufacturers Accountable for Violating the Rights of the People of the State of California
- California Appeals Court Sides With City Attorney and the Community Police Review Agency Regarding Procedures that Will Protect the Integrity and Effectiveness of Investigations of Police Officer Misconduct Complaints
Dear Friends and Fellow Oaklanders:
I hope you are staying healthy and safe during these unsettling times.
As always, I invite your comments and thoughts about the newsletter and our Office’s work.
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On February 2, 2021, the Oakland City Council adopted a new law, the “Grocery Worker Hazard Pay Emergency Ordinance,” requiring that large grocery stores in Oakland pay their workers $5.00 per hour in “hazard” or “hero” pay. The ordinance recognizes that grocery employees are essential workers at heightened risk to their health, as they staff indoor retail spaces where there is less air circulation, interact with a large number of customers, and must find ways to care for their dependent family members when services such as in-home care and public schools are limited or closed for in-person service. These risks are not speculative: since the start of the global pandemic, hundreds of grocery workers in Northern California have tested positive for COVID-19. Oakland and other cities have recognized and valued these risks by enacting laws like the emergency hazard pay ordinance that compensate these workers for the risks they take in providing essential services.
The California Grocers Association (“CGA”) sued Oakland one day after the Council enacted the ordinance, claiming that the ordinance violates various state and federal laws, including the California and U.S. constitutions. The CGA’s lawsuit fails to note the fact that the large grocery stores that are part of the association have made record profits during the pandemic (including stores like Albertsons and Whole Foods that have seen their profits and/or stock prices increase dramatically due to increased demand).
On April 5, I moved to dismiss this meritless lawsuit. I anticipate that justice will be served in this case, as it has been in similar cases filed by the same or similar corporate associations against other local government efforts to support essential workers during the pandemic.
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City Attorney Wins Key Motion in Lawsuit Clarifying that City’s Adopt-a-Spot Program Was Not the Cause of Pedestrian Accident
After several years of litigation, my Office won an important victory in Russell v. Zitani, a case concerning whether the City was liable for a traffic accident that occurred near vegetation on a median strip maintained through the “Adopt-a-Spot” program. On March 15, 2021, the Alameda County Superior Court agreed that the City did not cause the accident and granted the City’s Motion for Summary Judgment, ending the case against the City.
The case concerned a tragic accident that occurred at the corner of 40th Street and Opal Street, when a moving car hit a pedestrian crossing the street. The driver of the car testified that the sun being in her eyes was the cause of the accident. Despite this testimony, the pedestrian claimed that vegetation in the median strip—a median strip that is part of the Adopt-a-Spot program—was also a cause of the accident. In ruling for the City, the Court agreed that the vegetation, its maintenance, and the Adopt-a-Spot program did not cause this accident.
Adopt-a-Spot is a signature Oakland program through which volunteers can participate in the upkeep of parks, creeks, trails, and other public spaces. Oakland’s Public Works Department supports the volunteers who participate in Adopt-a-Spot by loaning them tools, helping with debris collection, and providing various other forms of technical assistance. Oakland residents enjoy Adopt-a-Spot as a means of connecting with the city and beautifying their neighborhood or community. It has been even more important during the pandemic to provide opportunities for Oaklanders to volunteer in safer outdoor settings.
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City Attorney’s Office in Trial: Seeking to Hold Abusive Landlords and Opioid Manufacturers Accountable for Violating the Rights of the People of the State of California
As I reported to you in my 2020 Year in Review, the City Attorney’s Office resolves most of its cases efficiently and justly before trial. That applies to both defensive cases brought against the City (nearly 3/4 of which we resolved last year for zero dollars) and to affirmative cases my office prosecutes on behalf of the City and/or on behalf of the People of the State of California. But sometimes, to advocate for and secure justice, we must take a case to trial.
In the past two months, we have been in trial in two cases, one in Alameda County Superior Court and one in Orange County Superior Court.
My office filed the first case, People of the State of California and the City of Oakland v. Dodg Corp, in June 2019, against the owners of a prominent local real estate and taxi empire for systematically violating the rights of tenants at buildings their family companies own. And in 2018, we joined the second case, People of the State of California v. Purdue et al., seeking to hold some of the largest opioid manufacturers in the country accountable for, among other things, their sophisticated deceptive marketing campaign that contributed to the public nuisance of the opioid crisis in Oakland and several other California jurisdictions.
Dodg Corp.
When we brought the Dodg Corp. case in 2019, Oakland had long been facing an unprecedented housing crisis. By 2019, the housing crisis was disproportionately impacting low-income households across the City, with nearly half of rental households in Oakland being rent-burdened (i.e., the household spends over 30 percent of its gross monthly income on rent). Because of the skyrocketing rents, many low and middle-income Oakland residents lived, and still live, under threat of displacement.
Prior to filing the case, my Office had already worked with members of City Council and the Mayor’s Office to pass various important laws focusing on protecting Oakland residents, particularly low-income and middle-income residents. For example, our Office worked closely with the Council to adopt the Tenant Protection Ordinance (TPO) in 2014, which was amended last year to strengthen the TPO’s protections. But for some abusive landlords, neither the 2014 TPO nor its recent amendments were enough to stop their illegal activities.
For years, the defendants in the Dodg Corp. case have owned and operated more than 100 rental properties in the City of Oakland. The lawsuit addresses their flagrant disregard for the letter and spirit of the TPO with respect to six specific rental properties, where the defendants subjected Oakland residents to grave health and safety risks. Defendants’ activities included renting units in substandard condition to tenants who were predominantly low-income immigrants, among them tenants whose primary language is not English. This predatory business model allowed Defendants to profit from renting uninhabitable or dilapidated units to tenants who were desperate to find affordable housing and who often lacked the resources to take legal action to defend their rights.
After a year and a half of hard-fought litigation, because we could not reach a just and equitable settlement that enforced the law and protected the people of Oakland, we went to trial in early April. During the three-week proceedings, over half a dozen City witnesses testified to the serious health and safety risks they repeatedly observed and documented at the Defendants’ properties. One inspector testified that the conditions were “by far the [] worst that [he had] seen.” The case is now in post-trial briefing. We will share additional updates in future newsletters.
People v. Purdue
In May 2014, the Santa Clara County Counsel’s Office and the Orange County District Attorney’s Office filed the nation’s first government-initiated lawsuit to hold opioid manufacturers accountable for their role in creating the opioid epidemic. The Oakland City Attorney’s Office and Los Angeles County Counsel’s Office joined the lawsuit in 2018.
Brought on behalf of the People of the State of California, the lawsuit alleges that the defendant opioid manufacturers engaged in a sophisticated and deceptive marketing campaign to promote opioids for use in treating chronic non-cancer pain, overstating the benefits while knowingly downplaying the risks, leading to an explosion of opioid prescriptions and widespread opioid addiction and abuse. The lawsuit seeks injunctive relief to prevent such practices in the future, civil penalties, and abatement of the public nuisance. The case is against opioid manufacturers Johnson & Johnson, Endo, Teva, and Allergan; a full list of parties can be found in the People’s operative complaint.
In the lawsuit, my office and our fellow prosecuting local governments allege that the Defendants made and disseminated false and/or misleading statements about the use of opioids to treat chronic non-cancer pain, and that they engaged in unlawful, unfair, and fraudulent business practices in the marketing and sale of opioids. In addition, we allege that Defendants’ deceptive marketing scheme played a role in creating a public nuisance—i.e., the opioid epidemic—in California and particularly in the Counties of Santa Clara, Los Angeles, and Orange, and in the City of Oakland. This public nuisance has been particularly devastating for communities of color in California, and uniquely harmful to Oakland’s Black community. Data reveal that opioid-related hospitalization rates in Alameda County are twice as high for Black residents as they are for all races combined, and are nearly twice that of White residents. And because the opioid epidemic has been particularly harmful to Oakland’s unsheltered homeless community, which is over 70% Black, the impacts of the epidemic have disproportionately harmed our city’s Black community.
In her powerful testimony about the primarily low-income people of color that her department serves, Oakland Human Services Department Director Sara Bedford stated that Human Services had been “shocked” by the countless needles they see, and that the crisis has had a significant impact on the department and the services it provides. And Oakland Police Department Officer Julian Bordona explained that the opioid crisis has “explode[d]” in Oakland in recent years, and that the gravity of the crisis led OPD to create an innovative program to train officers to use Narcan, an opioid antidote, to save lives on the street.
This case is vital because the opioid epidemic is one of the worst public health crises in U.S. history. According to the CDC, 130 Americans die every day due to opioid-related drug overdoses. The Council of Economic Advisers estimates that, in 2015, the epidemic resulted in a national cost of over $500 billion or 2.8% of GDP. Opioid addiction is now the primary reason Californians seek substance abuse treatment. For Oakland and our partner local governments, and localities around the country decimated by the opioid epidemic, litigation is a vital tool to secure the resources we need now to implement specific programs required at the local level to abate the crisis and sustain the costly, decades-long recovery process ahead. It is for this reason that we have taken this case to trial.
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California Appeals Court Sides With City Attorney and the Community Police Review Agency Regarding Procedures that Will Protect the Integrity and Effectiveness of Investigations of Police Officer Misconduct Complaints
Last month, the California Court of Appeal for the First Appellate District, Division One, handed down a major victory for the City of Oakland, the Community Police Review Agency (“CPRA”), and for my Office regarding our approach to disclosing complaints and reports about suspected officer misconduct to those officers accused of the misconduct. This decision is particularly important because it interprets a state law known as the Public Safety Officers Procedural Bill of Rights Act (“POBRA”), which, among other things, governs the disclosure of materials statewide to officers under investigation.
In our case, we had to fight the Oakland Police Officers’ Association’s demand that, under POBRA, the CPRA had to disclose extensive information from its investigative file if it had already interviewed the officer but had follow-up questions. Our reading of the statute is that doing so contradicted the letter and spirit of the law, undermined the integrity of the investigations, and diminished the public’s confidence in holding law enforcement accountable. The Court of Appeal agreed, writing that to do otherwise would be “inconsistent with the plain language of the statute and undermine[] a core objective under POBRA—maintaining the public’s confidence in the effectiveness and integrity of law enforcement agencies by ensuring that internal investigations into officer misconduct are conducted promptly, thoroughly, and fairly.”
I am thrilled with the Court of Appeals’ decision. It is the long-awaited result of our Office’s partnership with Oakland’s CPRA to protect the integrity and effectiveness of police misconduct investigations. The decision will help to ensure that police-misconduct investigations in Oakland and throughout California are controlled by investigators, rather than by the subject officers and their attorneys. The decision is particularly impactful for cities like Oakland, where we understand the importance of having independent, civilian-led investigations of complaints from our community.
We note that the deadline for filing an appeal to the California Supreme Court has not passed; we will update you regarding any developments.
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