Pretrial Hearing: scheduling and pretrial issues

  • First page of OBOT/OGRE state lawsuit complaint, filed in December 2018

All signs are that the trial in OBOT/OGRE v City of Oakland will begin on Monday morning, July 10, 2023 at 9:00 a.m. in Department 514, Hayward Hall of Justice, in Hayward, CA. A pre-trial hearing on the afternoon of July 6 dealt with scheduling and key pretrial issues on which the parties could not agree going into trial.

The public is welcome to attend the trial in Judge Noel Wise’s courtroom, but the court announced that there would be no audio stream (i.e., there will be no remote listening option).

Most importantly, Judge Wise adopted the City’s proposal to bifurcate the trial into a liability stage and a remedy stage. During the liability stage, witness testimony and documentary evidence would be focused on the question of which side broke the lease, when and how they broke the lease, and how the other side responded to the breach. Then, there will be a second stage to determine what remedy should be awarded.

If the City proves that Tagami broke the lease, the City’s remedy would be eviction of Tagami from the West Gateway. If Tagami proves that the City broke the lease, Tagami would be free to put on witnesses to prove damages up to the present, entitlement to reinstatement of the lease, and, if reinstatement is not viable, future damages to the extent that they are permitted by law.

Tagami’s counsel, Barry Lee of Mannatt Phelps, made a barely coherent argument that splitting the trial up this way would be inefficient and very difficult. The judge did not agree. She said that “until liability is established, there would be no evidence needed regarding damages to date, no evidence needed regarding whether specific performance [i.e., reinstatement of the lease] is appropriate, and no evidence needed regarding damages in the future.” Lee repeated his insistence that the division of the trial into phases would cause problems and result in delay but he failed to present any specific example to support his argument. The closest he came to showing his hand was a passing reference to a “bad faith” claim that he implied would involve evidence related to both liability and damages.

“The court is going to bifurcate,” ruled Judge Wise.

She asked both sides to prepare a one- or two-page summary that would summarize their case on liability in a specific way.

“I want to know the date each side says the breach happened, how the other side breached the agreement, and what did the party do when the other side breached,” said Judge Wise. She repeated this request for these one- or two-page summaries several times and stated that they would help her greatly in sorting through the evidence in the liability phase of the trial.

Presumably, the summaries will track closely the analysis each side will put forward in opening statements on Monday morning. Barry Lee said he, representing Tagami, would need about an hour for his opening statement. Danielle Leonard of Altshuler Berzon and co-counsel Daralyn Durie of Morrison Foerster said the City would need about an hour and a half for the City’s opening statement.

The City’s attorneys raised the issue of three categories of proposed exhibits on Tagami’s exhibit list which the City wants the court to block. These are (1) settlement communications, (2) privileged documents, and (3) documents that were not produced during discovery. There are 42 documents at issue. The judge said that until she receives an organized packet including each contested document, the City’s objections, and OBOT’s responses to the objections, she cannot rule on their admissibility, and therefore the documents cannot be used. Lee said he has no time for that, but wants to use some of these documents in his opening statement. The judge said he will have to proceed without them because opening statements will start on schedule at 9:00 a.m. She offered to revisit the issue with whatever time is left on Monday morning after opening statements.

Lee announced that his first two witnesses will be Phil Tagami and his partner Mark McClure starting on Tuesday, July 11, and continuing on Wednesday, July 12.

The Court released a schedule of times that she and courtroom staff will likely be available for the trial. This schedule is posted on this website’s Events Calendar — but dates and times are subject to change, possibly with little or no notice. We will do our best to cover major developments in the case as they occur, including changes to the trial calendar.