Oakland fire: How civil and criminal cases might play out

By Maura DolanStaff Writer

Dec. 6, 2016 6:50 PM PT

Reporting from Oakland — A complaint about wires sparking had been lodged to no avail. A smoke detector required by code was not in place. The fire spread rapidly, trapping the victims.

The blaze occurred in 1997 and killed four young children and a grandmother. A San Francisco public housing agency that owned the building was held primarily accountable. A jury awarded family members $15 million — $3 million for each of the dead.

As investigators probe the cause of last week’s deadly warehouse fire in Oakland, past cases like the 1997 fire offer a window into the potential legal consequences for those found responsible when negligence claims lives.

Lawsuits against property owners have produced huge verdicts — and often years of efforts to recover the money. In some cases, criminal charges have been filed, with mixed results.

“The Oakland fire is just an enormous tragedy, and clearly it is the result of people not paying attention to safety,” said Thomas J. Brandi, a San Francisco trial lawyer whose firm represented the family of the 1997 fire victims.

At least 36 people perished in Oakland’s fire, which consumed a warehouse where people were living in violation of city codes and under conditions that witnesses said included exposed dangling wires, makeshift heating from propane tanks and only one usable exit — a rickety staircase made of pallets.

Some Bay Area lawyers said they already have been contacted to represent people in cases stemming from the fire.

Wrongful-death lawsuits could name the property owner and the man who leased the building and allegedly sublet it to others, lawyers said.

Other potential lawsuit targets, they added, include any contractors, engineers and architects who worked on the site over the years; the city of Oakland; promoters of the musical event held the night of the fire and possibly even manufacturers of items inside the building that may have sparked or contributed to the blaze.

Criminal charges could include misdemeanor code violations on up to manslaughter, legal experts said. The top prosecutor overseeing a criminal investigation of the fire said charges might even include murder.

“In a case like the Oakland fire, the first issue is going to be who has exposure or liability,” said Niall McCarthy, a trial lawyer who represented victims of a 1996 San Francisco balcony collapse. “The property owner, the building manager and the promoter are going to have liability. They are the primary targets.”

McCarthy said family members of two victims contacted his firm this week about potential lawsuits.

He tried a case against the owner of the apartment building where a deck, infested with dry rot, collapsed. One person was killed and more than a dozen injured. McCarthy said lawsuits recovered more than $12 million.

As in the Oakland fire, a criminal probe into the deck collapse was launched. San Francisco prosecutors charged the landlord with involuntary manslaughter.

A jury deadlocked on the felony charge, and the landlord instead was convicted of misdemeanor code violations.

Civil suits require victims to prove their case by a preponderance of the evidence, a substantially lower standard than in a criminal case: beyond a reasonable doubt.

Given the large number of victims in Oakland, civil lawyers would search for defendants with the ability to pay large amounts of damages, those with “deep pockets.”

If Chor N. Ng, the owner of the warehouse, were found liable, lawyers would attempt to recover damages from her insurance company and by going after her other assets, which include several other properties.

“Lawyers have probably already gone on Zillow to look up the owner’s properties,” said Patricia E. Henle, a San Francisco trial lawyer.

Ng’s daughter, Eva Ng, told The Times that the warehouse was leased to an art collective and that no one lived there. Buildings with residents must meet stricter codes than warehouses, and some former tenants reportedly have said they would hide evidence of residency when the owner visited.

Still, landlords have a legal duty “to act reasonably and can’t just turn a blind eye to what is going on with their property,” Brandi said.

Mary E. Alexander, who represented fire victims of the 2010 pipeline explosion in San Bruno, Calif., said damages would depend on what the defendants knew, “when they knew it and the kind of notice they had.”

“You have a responsibility to know how your property is being used,” Alexander said.

Another potential deep pocket would be the city of Oakland, which probably would assert governmental immunity.

Lawyers said they would want to pore over Fire Department records to determine if the property was regularly inspected. They also would search building records for permits for work done on the property over the years.

Any time a building is altered, it must meet the requirements of codes at the time of the remodel. An Oakland city clerk said information about any work done on the burned warehouse might not be available for 10 days.

The building was leased to an artist colony managed by Derick Almena, who lived on the second floor and allegedly subleased space to other residents. The building was not zoned for residential use.

Kevin C. Brown, an Oakland real estate broker who has bought, sold and managed property in the Bay Area for 39 years, said the terms of the lease, which are not known publicly, would be illuminating.

“But this is a problem that is widespread even for units zoned for residential use,” Brown said.“It is not just isolated to one or two buildings in Oakland. It is very common in the Bay Area.”

He said owners may make tenants sign leases prohibiting subletting, but some cities allow it in buildings permitted for residences. “City law trumps contract law,” he said.

Owners often “lose control” of their buildings, said Brown, a past president of the California Assn. of Realtors.

If the criminal investigation into the fire produces charges, they most likely would be manslaughter and misdemeanor code violations, former prosecutors said.

A first-degree murder charge requires premeditation. An arsonist, for instance, could be charged with murder.

Second-degree murder requires implied malice, which may occur when someone kills or injures another during the course of an illegal or disreputable act.

Manslaughter does not require malice or intent. It is “basically creating an inherently dangerous situation,” said Joseph P. Russoniello, a former federal and local prosecutor in San Francisco. “Obviously the city and county are going to be under incredible pressure to look at everyone as thoroughly as possible.”

Dan O’Malley, a former Contra Costa County prosecutor and judge, said second-degree murder occurs when someone understands an act could result in loss of life and does it anyway.

He said prosecutors would be “hard pressed” to prove a building owner had implied malice unless there was a history of similar problems causing harm.

Involuntary manslaughter charges are more likely, he said, adding that he had not discussed the situation with Alameda County Dist. Atty. Nancy O’Malley, who is heading the criminal probe into the fire and who is his sister.

Depending on what investigators find, it is “very realistic” that someone will be charged with 36 counts of involuntary manslaughter, O’Malley said.