Coal Trial Updates: a new Judge, a flurry of motions
Since our most recent update, judicial wheels in the Alameda County Superior Court have continued to grind, slowly but surely, toward the coal trial formally known as OBOT & OGRE v. City of Oakland. New developments include: a different judge, a motion to disallow a major category of the developers’ claims for damages, and a motion to settle legal issues (as opposed to questions of fact) before the judge rather than involving a jury on those points. The trial is set to begin on April 21, 2023 if developers refuse to return to settlement talks with City Attorney Barbara Parker and her staff, or if they return but the parties are unable to agree on a settlement. OBOT and OGRE are companies owned or controlled by Oakland developer Phil Tagami and his partners.
The new judge assigned to the case is Judge Noël Wise, who replaces now-retired Judge Delbert Gee. Judge Wise served at the U.S. Department of Justice in the Bill Clinton and George W. Bush administrations, and authored a 2020 piece in The Atlantic titled “America’s Judiciary Doesn’t Look Like America.”
When Oakland developer Phil Tagami and partners walked away from settlement talks in July 2022, his lawyers filed a motion to reopen discovery without restriction, which could have burdened the City of Oakland substantially in the leadup to a trial after the City already responded to initial demands for documents and witness depositions. However, the OBOT motion was only granted in part: discovery can proceed only in relation to events that took place on or after December 21, 2021, the date discovery in the case was previously closed. This is a significant constraint, relieving the City of a redundant and therefore superfluous burden.
Though it has not yet been decided, the City has filed a motion to exclude from the trial proceedings evidence of OBOT’s claimed “consequential lost profits damages” amounting to over $100 million. There are two grounds for excluding this evidence. First, there is an explicit provision in the West Gateway Ground Lease, a contract between OBOT and the City of Oakland, that bars such a claim. Second, the law does not permit claims based on speculation about future profits that an unestablished business might have earned if it pursued its business plan.
In a motion filed by the City of Oakland on December 7, 2022, the City called on Judge Wise to reorganize the proceedings that will lead up to the trial. If granted, the Judge would schedule a January briefing on two motions: (1) to exclude evidence of “consequential lost profits damages,” described above; and (2) to try certain purely legal questions in a bench trial (that is, a trial decided by the Judge, without a jury), and proceed to the jury trial only if it is still needed after the legal questions are decided. In addition, the December 7 motion asks Judge Wise to establish a February 1, 2023 cut-off date for discovery (no cut-off is currently in effect). A discovery cut-off date enables the parties to get ready for trial without the distraction of depositions, document requests, and motions relating to discovery.
Oaklanders will not be bullied into accepting toxic environmental injustice, and we insist on a no coal future. We call on Phil Tagami and his collaborators to Drop Dirty Coal and Drop the Lawsuit by which Tagami et al. are attempting to extort tens of millions of dollars from Oakland taxpayers to dig them out from under a reckless, toxic, infeasible, and ill-advised project.
UPDATE (January 9, 2023): Judge Wise has reset the coal trial date to July 10, 2023; no reason for doing so was given. A pre-trial conference is scheduled for June 28, 2023. Due to the trial date change, the City’s December 7, 2022 application for an expedited briefing and hearing schedule is no longer germane, as the revised trial date will permit parties to pursue motions they wish to file using ordinary rules for scheduling hearings.
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