APPROVED AS TO FORM AND LEGALITY
2022 OCT 13 PH 5:28
FILED
OFFICE OF THE CITY CLERK
OAKLAND CITY ATTORNEY’S OFFICE
OAKLAND CITY COUNCIL
89447RESOLUTION NO. C.M.S.
RESOLUTION AUTHORIZING AND DIRECTING THE CITY ATTORNEY
TO COMPROMISE AND SETTLE ADDITIONAL COSTS AND
ATTORNEYS’ FEES IN THE CASE OF DARWIN BONDGRAHAM AND
ALI WINSTON V. CITY OF OAKLAND, OAKLAND POLICE
DEPARTMENT AND SUSAN MANHEIMER, ALAMEDA COUNTY
SUPERIOR COURT CASE NO. RG20071657, CITY ATTORNEY’S FILE NO. X05171, IN THE AMOUNT OF ONE HUNDRED FIVE THOUSAND
DOLLARS AND ZERO CENTS ($105,000.00) AS A RESULT OF ALLEGED
PUBLIC RECORDS ACT VIOLATIONS (POLICE DEPARTMENT-
PUBLIC RECORDS ACT)
WHEREAS, Petitioners in this matter filed a Petition for Writ of Mandate (“Petition”) alleging that the City of Oakland and Oakland Police Department violated the Public Records Act, Government Code section 6250 et seq., and Oakland Sunshine Ordinance, Municipal Code sections
2.20.010 et seq., with respect to requests for Oakland Police Department personnel records by failing to timely respond to public records requests for police records, and further alleged that the City and the Oakland Police Department improperly redacted certain information on records that were released pursuant to their requests; and
WHEREAS, the court issued an order, on April 7, 2021 (“April 7, 2021 Order”), and a writ of mandate, on April 13, 2021 (“April 13, 2021 Write of Mandate”), granting the Petition and commanding the City and Police Department to produce all records responsive to Petitioners’ requests within six months; and
WHEREAS, on June 15, 2021 the City Council passed Resolution 88700 C.M.S. authorizing and directing the City Attorney to compromise and settle Petitioners’ attorneys’ fees and costs for services provided up to the date of the court’s entry of the April 13, 2021 Writ of Mandate for the sum of $125,204.50; and
WHERAS, the Court did not rule on the substance of Petitioners’ redaction challenges in the April 7, 2021 Order or April 13, 2021 Writ of Mandate, but rather set forth a process by which the parties and Court would address disputed redactions in the documents already produced and any disputed redactions in documents produced going forward; and WHEREAS, following extensive communications between the parties and several appearances before the Court pursuant to the redaction-challenge procedure, the City and Police Department have agreed to or been ordered to lift certain redactions and have been permitted to retain others; and
WHEREAS, the City wishes to compromise and settle Petitioners’ attorneys’ fees and costs for services provided after the April 13, 2021 Writ of Mandate in the amount of One Hundred Five Thousand Dollars ($105,000.00), and to compromise and settle other non monetary redaction issues, including by securing a waiver from Petitioners of claims for further relief in the action except for a currently pending appeal, BondGraham v. Superior Court of Alameda, First District Court of Appeal Case No. A165187, as set out in the attached settlement agreement; now, therefore, be it
RESOLVED: That the City Attorney is authorized and directed to compromise and settle the case of Darwin BondGraham and Ali Winston v. City of Oakland, Oakland Police Department and Susan Manheimer, Alameda County Superior Court Case No. RG20071657, City Attorney File No. X05171, as provided for in the attached settlement agreement, which includes payment for attorneys’ fees and costs in the amount of $105,00.00 payable to Ferguson Law PC; and be it
FURTHER RESOLVED: That the City Attorney is further authorized and directed to take whatever steps necessary to effect said settlement.
OCT 18 2022IN COUNCIL, OAKLAND, CALIFORNIA,
PASSED BY THE FOLLOWING VOTE:
AYES - FIFE, GALLO, KALB, KAPLAN, REID, TAYLOR, THAO AND PRESIDENT FORlUNATO BAS — NOES
ABSENT -KT
ABSTENTION
P ATTEST:
City Clerk and Clerk of-the Council of the
//City of Oakland, California
3212318
2 DRAFT - HIGHLIGHTED FIELDS TO BE CONFIRMED
ATTORNEY FEES AND COSTS SETTLEMENT AGREEMENT
Darwin BondGraham, et al. v. City of Oakland, et al.
Case No. RG20071657
Superior Court of California, County of Alameda
This Document is subject to Public Disclosure
This settlement agreement (“Agreement”) is entered into between Respondents CITY OF N MANHEIMER, in her official
m and ALI WINSTON, and
jRGUSON LAW and the LAW
Fatties,’Ajeach singularly a “Party”).
OAKLAND, OAKLAND POLICE DEPARTMENT and SLS
capacity (“Respondents”), Petitioners DARWIN BONDGRAI
counsel for Petitioners THE MEADE FIRM, REISER I AW, I
OFFICE OF MICHAEL T. RISHER (collectively the
Rl.
This Agreement is made with reference 1< following facts:
A. ionors filed a Petition for Writ of Mandate in the
Alameda, Case T*Io.
•kea.. and lh<
On August 17, 2020 P
Superior Court of California, Count)
Records Act, Government Code section 6i
G20071657, under the Public
Oakland Sunshine Ordinance,
") Peliiiondrss sought to compel production
1 related to instances of
:nls had failed to meet the Public Records
a\ ailableT^oov. Code § 6253(b). Petitioners
laced on records that had been released
Municipal Code sections 2.20.010 et scq. (llje “Acti
of records from the Oa’ ilice Depart
illcged that
Billi undi
police misconduct. Petitioners
Act requirement thal documents be made “prom
further alleged that ceitain ledactions Responde
pursuant to their requests were i
o
The ing on tnl* Petition on April 2, 2021, after which it issued an Mandate, onApril 13, 2021, granting the Petition and
toduce^a^sponsive records at two-week intervals within six on the sm^pnee of Petitioners’ redaction challenges but set forth e Parties and Court would address disputed redactions in the documents an> disputed'.redactions in documents produced going forward. irt held a
Order, on Aj
commanding
months. Ihe (\»m i did not rul
a process by v» hich
already produced a:
>ril 7, 2021. anc
Respondents 6
ril
seeding months after issuance of the Writ, the parties exchanged numerous letters and engaged in extensive meet and confer pursuant to the Court’s redaction- challenge procedure specified in its Order of April 7, 2021. These letters include correspondence (1) from Petitioners to Respondents on May 5, 2021; May 26, 2021; June 2, 2021; June 23, 2021; July 9, 2021; July 22, 2021; July 23, 2021; July 30, 2021; August 17, 2021; September 13, 2021; January 10, 2022; and April 5, 2022; and (2) from Respondents to Petitioners on May 19, 2021; June 9, 2021; July 22, 2021; August 17, 2021; January 26, 2022; February 12, 2022 and May 5, 2022. The parties also exchanged dozens of emails over a similar period.
C. Over the
1 DRAFT - HIGHLIGHTED FIELDS TO BE CONFIRMED
The Court held three in-chambers sealed conferences on August 24, 2021, September 14, 2021 and May 10, 2022. The Court also issued two rulings on the redaction disputes, on March 17, 2022 and [ ]l
D.
E. As a result of the Parties’ meet and confer efforts regarding redactions as well as the three Court hearings and two Court Orders, Respondents have agreed to lift certain redactions and have been permitted to retain others.
Petitioners filed a petition for a writ of mandate in the Court of Appeals challenging portions of the March 17, 2022 Order (the “AnnealSkwhich is currently pending (.BondGraham v. Superior Court of Alameda, First District ( ourfdf Appeal Case No. A165187). •peals related to the [ ]| Order
ieiencies.
F.
G. Petitioners have not filed a writ with the t our i ul and have not filed a motion with the Court related to production H. The Parties desire to settle all aspects of this dispute except for the Appeal and any issues that may arise in the future in the Superior Court as a result of the Appeal as further clarified below. This Agreement is not an admission'of liability by Respondents nor an admission by any Party as to who is the prevailing party in thi litigation NOW THEREFORE, in consideratio
Parties hereto agree as follows:
ihe cox enants and promises herein set forth, the
2 DRAFT - HIGHLIGHTED FIELDS TO BE CONFIRMED
TERMS
Incorporation of Recitals. Paragraphs A through f ]| of the Recitals are incorporated as though fully set forth herein.
1. Oakland to lift redactions. By December 15, 2022, Oakland shall lift all redactions it has agreed to or been ordered to lift, except that redactions to the “Celeste Guap” documents will be made after a meet and confer following the Court of Appeals" disposition of Petitioners’ writ in BondGraham v. Superior Court of Alameda, First District C The Parties shall jointly confirm and agree to a list of such r or been ordered to lift by October 19, 2022. Productio
two weeks prior to final production. For purposes
to lift headers to criminal history information.
2. .of Appeal Case No. A165187.
tions that Oakland has agreed to
■ made on a rolling basis every
s will not require Oaklandarity, Pell
3. Data Room. Within two weeks of liftin Redactions pursuant to Paragraph 2, the data room
lm.fter Oakland (S|jjbiunicates to
l Paragraph 2, Petitioners will
Ibks.
Respondents may remove all information currentlyjfbsted i review unredacted documents on an
for Counsel to
eys-eyes-o
ion lifts outlined
within 7
Petitioners that it has completed the r>
communicate any perceived errors or defic
4. Release and vs ui\ er of rights. ExeepL as a
ftl waive aMdaii]
anneal or file Ui
|nParagraphv2, and as limited by
furlliu rehSrin this Action, including,
iurt of Appeal relating to the ||
relief from the Superior Court for production deficiencies; s released as a result of the April 13, 2021
to inJ io and video files; and (4) any further
Paragraphs 5 and 6, P
but not limited to, (1) am i ighl lo
Order, (2) any right 10 request furl
(3) any further claim that any reda
Writ are iniDror
claim f
wifli 1’
o docu
oul
md coie\s
ation of Rights. ,Noft\ itl
waive or release any claims in connecti
may be necessary in Superior
post-Appeal proceed
investigation; redactions uiulei
Warrant case records; and reda
Willie Wilkins documents produced on November 16, 2021.
Standing anything in Paragraph 4, Petitioners do not
d^lpjth the Appeal and any post-Appeal proceedings that . If remand is ordered after Appeal, Petitioners will limit any s to documents produced related to the Celeste Guap sexual assault f.7(b)(4) and (b)(5) (formerly (b)(3) and (b)(4)) to the Search ns under 6254(f) to the document “01-03095 Misc” in the
5. Attorney fees and costs to be paid. The City of Oakland agrees to pay the sum of $105,000.00 to counsel for Petitioners, Ferguson Law PC, within thirty (30) calendar days of the full execution of this Agreement. The check shall be made payable to “Ferguson Law PC.” This amount shall cover all attorney fees and costs incurred after service of the April 13, 2021 Writ of Mandate in this case, and any future attorney fees and costs incurred related to reviewing and conferring over Respondents’ revised redactions as described in Section 2 above, but shall exclude any and all fees incurred related to the Appeal and any post-Appeal proceedings that are necessary as a result of the Appeal (if any). For purposes of clarity, Petitioners shall not seek
6. 3
DRAFT - HIGHLIGHTED FIELDS TO BE CONFIRMED
further attorney fees from Respondents for work performed in the Superior Court in this Action prior to execution of this agreement, or for any costs and fees incurred after the date of the Agreement related to reviewing and meeting and conferring, if necessary, over revisions to redactions provided pursuant to Section 2 of this Agreement, even if Petitioners prevail in the Appeal. The amount shall cover fees incurred by THE MEADE FIRM, REISER LAW, FERGUSON LAW PC and the LAW OFFICE OF MICHAEL T. RISHER in Superior Court up to the date of execution of this Agreement.
Release of all fees and costs to date. Petitioners and their counsel acknowledge that with jlhall be satisfied and that no
JISR, 2021 and the date of
iction with reviewing and meeting
^pursuant to Section 2 of this
7. the payment outlined in Paragraph 6, all fees and any other co:
fees or costs will be due and owing for the period between Ap execution of this Agreement, or for services performed in com and conferring, if necessary, over revisions to redaction:
Agreement. With the exception of work performe.
Agreement does not release any Party from liabj
the extent permissible by law, including for ft
Appeal proceedings.
ro\
tonnecliorrwfo Section 2 above, this
any, Jor liilurS(g^jts and fees incurred to
and costs associated ie Appeal and post-
8. No admission of liability. Neither Ibis Agreement nor any part of this Agreement shall be construed to be an admission of by an>
nor any part of it, nor any settlement negotiations ur earlier drafts of this Agreement, be admissible in any proceeding as evidence of such an admission. any violation of law, nor shall this Agreement
ing in this agreement is an admission by
the Respondents that Petitioners arc the prevailing p nl\ within me meaning of Gov. Code § 6259(d) or any other a^jticable I aw1 or that an> fees, costs and expenses, whether or not settled or waived In this agreerm ni am or would Ik compensable by Respondents. Nothing in this lission In Petitioners or then coufftel that they are not the prevailing party 'ode § 6259(d) or anyybther applicable law or that any fees, costs and expenses, except as sellled by this agreement, are not or would not be compensable under applicable law.Neither Party waives anyTuture argument as to who is the prevailing party for purposes of lulure atlorney fee obligationsror for any other reason.
9. No waiver a arty st;evaf
agreemen
within the n eaning ol G>
-assignment. The Parties warrant that they have not assigned any of •sis ih.it are the subject of this Agreement.
10. Warranty o:
the outstanding fees or co
Bills, liens & other interests. Counsel for Petitioners agree that the satisfaction of any of Petitioners’ or their counsel’s outstanding bills, including bills for transcripts, printing, and legal services performed by other firms, and existing or future liens or reimbursement or subrogation interests (whether statutory, equitable, or contractual), shall be their sole responsibility.
11. 12. No unwritten representations. Each Party represents that in executing this Agreement, the Party does not rely upon and has not relied upon any representation, promise, or statement not expressly contained herein.
4 DRAFT - HIGHLIGHTED FIELDS TO BE CONFIRMED
Complete agreement. This Agreement is the complete agreement between the Parties with respect to the matters governed by this Agreement and supersedes any prior agreements or discussions between the Parties on such matters.
13. 14. California law. This Agreement is executed and delivered in the State of California, and the rights and obligations of the Parties hereunder shall be construed and enforced in accordance with the laws of the State of California.
15. Interpretation and construction. Any ambiguities or uncertainties herein shall be equally and fairly interpreted and construed without reference io lb : identity of the Party or Parties preparing this document or the documents referred io herein, on the understanding that the Parties participated equally in the negotiation and prepj-iation documents referred to herein or have had equal opportunity to arrived at through negotiation and none of the Parlies Is to be deemed the party which prepared this Agreement or caused any uncertainty to e\ ist w ill lin the meaning of Civil Code section 1654.
The headings used herein are for reference onlv and shall not affect the construction of the Agreement.
the Agreement and the
) so. This Agreement has been
16. No breach of this Agreement or of any provision
uted by the Party waiving such
®of any other breach of the same
nent mavilaamended- altered, modified or
u wri ting
Breach, waiver and amend nn
herein can be waived except by an e ■ press \\ ru , n waiver e> breach. Waiver of any one breach shall not be deemed a \\a or any other provision of this Agreemen^fhis Agi
otherwise changed in any respect nr particular, only
hereto or their autho l/ed representatives.
sxecuted by the Parties
17. Authority to execute. Each parl\ hereto wan ants to the other Parties that he/she has the ind peflfkm under this Agreement and all documents
nt pi ipipval from any other person has been
jjmnt that they have oo^ped authorization from City Council to enter full power
referred to
obtained. Respondents
into this agreement.
>rit\ to ex
id that an ed eon:
18. Counterparts. This Agreement may be executed by the Parties in any number of counterparts, all of which taken together shall be construed as one document. Any facsimile signature shall be \alid and acceptable for all purposes as if it were an original.
19. Effective date. The effective date of this Agreement shall be the date the last signatory hereto signs the Agreement.
Duty to act in good faith. The Parties shall act in good faith and use their reasonable good faith efforts after the execution of this Agreement to ensure that their respective obligations hereunder are fully and punctually performed. The Parties shall promptly perform any further acts and execute and deliver any other documents or instruments that may be reasonably necessary to carry out the provisions of this Agreement.
20. 5
DRAFT - HIGHLIGHTED FIELDS TO BE CONFIRMED
No third-party beneficiaries. Except as expressly provided herein, this Agreement is not for the benefit of any person not a party hereto or any person or entity not specifically identified as a beneficiary herein or specifically identified herein as a person or entity released hereby. The Agreement is not intended to constitute a third-party beneficiary contract.
21. Savings clause. If any term, condition, provision or part of this Agreement is determined to be invalid, void or unenforceable for any reason, the remainder of this Agreement will continue in full force and effect.
22. IN WITNESS WHEREOF, the Parties hereto have execu
Release:
Lis Settlement Agreement and
Dated:
M, Petitioner
Dated:
6 DRAFT - HIGHLIGHTED FIELDS TO BE CONFIRMED
Dated:
SAM FERGUSON
FERGUSON LAW PC
Counsel for Petitioners
Dated:
TYLER MEAD
MEADE FTRM
Counsel fur Pet:u oners
Dated:
EL REISER
REISER LAW
Counv a lers
Dated:
L RJS
IFICF 01 MICHAEL T. RISHER
.mo non
Dated:
IL QUIRKf)F THE OAKLAND CITY
A1 FORNEY
Attorneys for Respondents City of Oakland,
Oakland Police Department and Susan Manheimer
7