No Jury Trial in Oakland Coal Dispute: Judge Wise Will Decide

  • Hall of Justice, Hayward, CA. By Mercurywoodrose - Own work, CC BY-SA 3.0,

At a pre-trial conference on June 28, 2023, Alameda County Superior Court Judge Noël Wise approved an agreement between would-be coal terminal developers and the City of Oakland to waive their respective rights to a jury trial in the ongoing battle over the City’s termination of the developers’ lease in 2018. At a non-jury or “bench” trial, the judge hears the evidence and decides all questions of law and fact. If all goes smoothly, the parties will make their opening statements on the morning of July 10th in Judge Wise’s Hayward, California courtroom.

The developers will be asking the judge to award them $148 million of damages and to confirm their right to build and operate a coal export facility on Oakland’s publicly owned waterfront. They rely on a 2016 lease that they claim the City unlawfully terminated. The City says the developers broke the lease first by failing to meet construction deadlines, and is countersuing for eviction. The City’s victory would end the threat of a coal terminal in West Oakland.

The switch to a bench trial will simplify the trial for the parties and the court. Without a jury, the judge can defer numerous pretrial disputes that would otherwise have to be resolved before a jury could be empaneled. These include arguments for exclusion of prejudicial or privileged evidence, objections to proposed exhibits, and disputes over jury instructions. In a bench trial, many such issues can be dealt with if and when they come up without sending the jury out of the courtroom while they are debated.

The City had earlier moved to streamline the trial by conducting a bench trial on all issues that are ordinarily the judge’s to decide and a subsequent jury trial to resolve issues, if any, that remained. The developers opposed the motion and the judge did not grant it. Now, with the trial rapidly approaching, the developers — for reasons that were not disclosed in today’s hearing — went along with the bench trial of all issues.

Judge Wise asked the parties to take back binders related to pretrial disputes and replace them with a new set reflecting that many of the issues relating to what could be presented to a jury no longer required her attention.

The City’s attorney, Danielle Leonard of Altshuler Berzon, explained that there were still some issues about evidence that may need to be resolved by the Court before trial and she also proposed to provide the court with a succinct overview of the City’s case. She also suggested that the trial be done in stages to present major liability issues first and remedies later. The developers’ attorney was not ready to agree.

The judge strongly urged attorneys for both sides to meet and confer in order to reach agreement on how the trial should be structured.

At the end of the pre-trial conference, the developers’ attorney reported to the judge that he had just received a phone call from his unnamed client (Phil Tagami?) stating that he had information that “No Coal protesters” plan to show up at the trial. The attorney stated that he understood from his client that No Coal had been present at the federal proceedings wearing red T-shirts in court and caused a ruckus at some earlier hearings in Oakland “because there wasn’t seating for people.”  

The attorney’s hearsay about “protesters” didn’t get far with the judge.  Judge Wise said that “members of the public are welcome to be here in person. Nobody can ever be disruptive in the courtroom; if they are, they’re escorted out of here.” She abruptly moved on.

Another pre-trial hearing is set for July 6.