Oak-to-9th Lawsuit Will Move Forward

By J. Douglas Allen-Taylor
Friday December 22, 2006

As was expected, a California Superior Court judge dismissed the City of Oakland’s early attempt to throw out the Oak To Ninth referendum lawsuit late last week, with both sides downplaying the significance of the judge’s ruling.  

Last September, City Attorney John Russo threw out more than 25,000 signatures on petitions seeking a referendum to block the 64-acre Oak To Ninth development near Jack London Square. 

Members of the Oak to Ninth Referendum Committee sued and last week Superior Court Judge Winfred Smith officially upheld her tentative ruling against an attempt by the City Attorney’s office to dismiss the lawsuit through demurrer. 

If the petitioners eventually win the lawsuit, the Oak to Ninth development would be blocked until Oakland citizens have a chance to go to the polls and vote to decide whether the development should go forward. 

A ruling last week by the judge in favor of the demurrer would have meant an immediate dismissal of the lawsuit, but spokespersons for both sides said the continuance of the lawsuit only means that there’s still a long way to go. 

“They cleared the first hurdle in what will be a long race, that’s all,” Erica Harrold, Communications Director for the City Attorney’s office, said in a telephone interview. 

Oakland-based attorney Stuart Flashman, attorney for the Oak to Ninth Referendum Committee, said that the ruling only clears the way for the filing of a series of legal documents by both sides, including an answer to the complaint by the city, and motions for summary judgment. 

Unlike the demurrer—which argues that there is no legal basis for a lawsuit—a summary judgment motion asks the judge to rule that one side or the other is likely to win at trial because the facts and the law are in their favor. 

“It’s likely that the judge will deny any summary judgment motions,” Flashman said. “There’s a significant dispute over the facts in the case, and that’s the sort of thing that can only be settled after testimony at trial.”