Slip-Sliding Away 

When the earth gives way, attorneys hit pay dirt; plus, feds probe Don Perata's favor for corporate donors.

When people mess with nature, lawyers make money. That's the lesson being meted out at the site of a massive landslide in Oakland's Fruitvale district. The landslide, which nearly everyone agrees was caused by human negligence, destroyed one home and damaged a church and two other homes in May 2006. Now, just over a year later, an epic legal feeding frenzy has begun. As of last week, at least sixteen lawsuits and countersuits had been filed in Alameda County Superior Court. The litigation makes it clear that no one wants to accept responsibility, and that everyone is blaming everyone else.

City Attorney John Russo launched the blame game by suing the East Bay Municipal Utility District in late January. Russo claimed EBMUD's huge aboveground Central Reservoir, located uphill from the slide, had leaked for years, saturating the hillside and causing the land to give way. But Russo's office was forced to withdraw its suit in March because it failed to file a routine claim with EBMUD first.

Following closely behind Russo were Martin and Marcia Perlmutter, whose upscale home on McKillop Road near East 29th Street was devastated by the landslide. On a recent visit to the site, only a small section of the Perlmutters' roof was visible from the road because the house had slid so far down the hill. "It's pretty much goodbye," said Alan Mayer, the couple's attorney. "There's no chance of saving any of it."

To recoup at least some of their losses, the Perlmutters decided to sue everyone they could think of. In addition to EBMUD, they sued the City of Oakland, Alameda County, Alameda County Flood Control and Water Conservation District, the state, and Caltrans. They've also sued their next-door neighbor, Darelena Johnson, along with other neighbors to be named later, claiming they funneled runoff water onto their property.

Not to be outdone, the Jehovah's Witnesses sought legal relief. Their church, adjacent to the Perlmutters, was red-tagged by the city one year ago. Now the Witnesses are also equal-opportunity litigants, suing several public agencies, although judging from their court filings, they mostly blame EBMUD. Unlike the Perlmutters, they have yet to fault their neighbors. "The size of that landslide — it's not something that could be caused by overwatering the lawn or something," explained the church's lawyer, Chipman Miles.

Next in the lawsuit queue were Henry and Valeria Royal, neighbors of the Perlmutters, and Darelena Johnson, whose home was red-tagged and has been sliding downhill. The Royals and Johnson sued the same public agencies, plus the Perlmutters.

Which brings us back to Russo. Having finally filed the proper paperwork with EBMUD, the city attorney sued the utility district again in May. In response, EBMUD promptly countersued the City of Oakland, along with the Perlmutters and Alameda County Flood Control. EBMUD alleges that the flood control district failed to properly maintain the Sausal Creek channel below the landslide, allowing heavy rains in 2006 to erode the channel and undermine the hillside. The utility also blamed the Perlmutters for not repairing a water-pipe leak, which the Perlmutters claim EBMUD should have fixed.

And finally, in the most bizarre allegation so far, the water agency blamed some unknown tree cutters. In early 2006, according to EBMUD, somebody chopped down several large eucalyptus trees at the base of the slide; when they toppled, they slammed to the ground, breaking sewer lines and causing "small earthquake-type ground vibrations."

For those keeping score at home, that's five lawsuits and one countersuit. So what about the other ten? Russo is responsible for several of them. In response to the other lawsuits, he filed what may be best described as "share-the-blame" countersuits. Basically, they say that if the city is found liable for the landslide, then others should be too. The Perlmutters have filed similar litigation.

So what happens next? In the next month or so, a judge likely will combine all the cases into one giant one. Then it'll be up to a jury — or maybe a special master — to decide how much of each of the parties should pay. The lawyers, of course, will get theirs.

FBI Probes Perata Favor

Depending on your perspective, the FBI has been either thorough or overzealous in its two-and-a-half-year public corruption probe of state Senate boss Don Perata. The latest example is the feds' inquiry into Perata's involvement in a proposal by two of his campaign contributors to develop the former Alameda Naval Air Station.

According to a copy of a federal grand jury subpoena issued July 2006 in the Perata case, along with other public documents, the FBI was interested in the senator's attempt in 2003 to speed up the development of the former base by Shea Homes and Centex Homes. The two homebuilding giants donated at least $64,100 to Perata's campaign committees and those associated with him from 2000 through 2006.

But in the spring of 2003, Centex and Shea's plan to construct 1,700 houses was stymied by an obscure state agency — the Department of Housing and Community Development. The agency refused to sign off on Alameda's "housing element," which laid out how the city planned to ensure adequate affordable housing. This effectively halted the developers' plan.

In April 2003, Perata fired off an angry letter to the agency's director, Judy Nevis, saying he did "not believe that your department should withhold certification of the City's [Alameda] element." Although the senator never mentioned Shea or Centex, he wrote that the agency's "failure to certify the element will certainly hinder and delay efforts to redevelop the Naval Air Station." Full Disclosure obtained copies of Perata's letter, the subpoena, and other documents through a public records request to the state housing agency.

It's not clear from the documents whether Perata did anything illegal, but the senator did get his way. Nevis did not return a phone call seeking comment, but her agency approved the city's element after receiving Perata's letter, thereby green-lighting the plan for the former base. Three years later, however, Shea and Centex pulled out of the deal, citing the downturn in the Bay Area's housing market. Centex spokesman Eric Bruner said his company also received a subpoena, but it does not consider itself a target of the feds.

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