Norberto Santana, Jr.

A pioneering leader in the nation’s rising nonprofit news movement and an award-winning journalist. Santana has established Voice of OC as Orange County’s civic news leader, uncovered truths across Southern California governments for more than two decades and reported on Congress and Latin America. Subscribe now to receive his latest columns by email.

The oil rigs off the coast of Orange County are due for a deep scrub like never before.

In January, more than a dozen civil lawsuits – now combined into one class action lawsuit – will start gearing up, with an array of interests seeking damages in federal court from the operators of the the Ely oil platform, which sprung a pipeline leak last October spewing about 25,000 gallons of oil just a few miles off the Huntington and Newport coast.

The oil spill shut down the local fishing industry, closed beaches and took a toll on nearby coastal-reliant businesses.

The disaster has raised a myriad of safety and disaster response issues around the use of offshore oil drilling platforms – especially so close to crowded shipping lanes and near billions of dollars in coastline investments, businesses and natural assets stretching across Southern California. 

Indeed, on the very same day that civil lawsuits were being considered for consolidation into a class action on Dec. 15, federal authorities announced the filing of indictments against the oil platform owners and operators.

The fact that federal investigations and indictments are playing out alongside private sector investigations – in the form of trial attorney discovery – is something that will put special public pressure on federal investigators and prosecutors, in real time. 

It’s still unclear how the federal indictments – which paint an ugly picture of offshore drilling operations, training and emergency preparedness – will impact discovery in the civil cases or vise-versa.

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Yet given the unique role of two prominent leaders in the Orange County legal community, we should all expect a heated and active year – one that could even end up with Big Oil itself on trial, as well as big changes for offshore drilling off the nation’s coasts. 

U.S. District Judge David Carter, who has been assigned to preside over the federal civil litigation, is well known in Orange County for his active approach to homeless litigation across the region. 

Carter is a hard worker with a strong sense of community who hits the field hard and early, while expecting those around him to do the same. 

It’s always fun to watch elected officials and bureaucrats – who are both experts at delay and deflection – come under Carter’s heat lamp because in his court he makes them actually answer dicey questions and often reviews their math.

Federal Judge David O. Carter, center in blue sweater, is flanked by lead attorneys for the county and homeless people as he makes his way through the Santa Ana River homeless encampment during a Feb. 14, 2018 tour. Credit: SPENCER CUSTODIO, Voice of OC

Carter, himself a runner for many years, ran the County of Orange lawyers into the ground on the homeless litigation in 2018 and often took his courtroom right to the steps of Santa Ana’s riverbed homeless encampments. 

Carter has held the attention of just about every Orange County elected official over their role on homelessness in recent years, with an aim toward helping resolve an ongoing federal lawsuit that at times had Carter threatening to invalidate most local ordinances blocking camping in public. 

He effectively used that nuclear threat to get a series of concessions, actions and allocations from county and local leaders, stepping up a feeble, but well-funded regional homelessness and sheltering and response system.

While Orange County’s homelessness response is still not ideal or even particularly effective, it has moved to the forefront because of Carter’s focus and leadership from the bench, a leadership that has oftentimes enraged local conservative political leaders who see his actions as legislating land use policies from the bench. 

Watching Carter’s appointment makes me wonder if I’ll soon be getting calls from Big Oil executives questioning his jurisdiction, screaming about why some federal judge in Southern California is out inspecting oil platforms.

In 2018, Carter personally inspected the Santa Ana Riverbed homeless encampment multiple times, with him walking up and down the roughly 3-mile stretch of camp twice in one day.

My advice is to lace up those running shoes because this is a jurist that doesn’t seem afraid to explore boundaries. 

U.S. District Judge David O. Carter speaks with county attorneys and lawyers representing the homeless people during an unorthodox court hearing in the Honda Center parking lot near the Santa Ana Riverbed homeless camp Feb. 20, 2018. Credit: SPENCER CUSTODIO, Voice of OC

One of Carter’s first decisions came last month on Dec. 15, when an army of law firms from across the region made presentations in his courtroom seeking appointments as co-lead class counsel, a legal term for a position often appointed by judges to coordinate the efforts of multiple attorneys and law firms on big class action cases.

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In listing the first attribute for a co-lead counsel, Carter showed his local focus seeking a home team player with “longstanding connection to the affected communities.”

That makes me think Carter wants an assertive lawyer on behalf of the public, a local person who will have to face his neighbors after everything is said and done on the issue of oil rigs off the Orange County coast. 

In addition to his decision to consolidate just over a dozen civil cases just before the Christmas holiday, Carter appointed OC Attorney Wylie Aitken – who also serves as chairman of the governing board for Voice of OC – as one of the three lead counsels coordinating the massive class action lawsuit. 

Wylie Aitken.

At the hearing, Carter indicated that one of the major reasons he tapped Aitken, who has lived in Orange County since 1955, was for his longtime community service across so many Orange County civic, political, legal and arts organizations – as well as his leadership abilities among his colleagues. 

In addition to being known for handling big cases like the Toyota and Disneyland Columbia boat tragedy class action lawsuit, Aitken is a Democrat who is known for his ability to work across the aisle with Republicans. 

He has served in a series of leadership posts across Orange County for decades, including chairman of the board of trustees at Chapman University and chair of the Law School Board of Advisors. 

Aitken also served as Board Chair for the California Arts Council and Orange County’s South Coast Repertory and currently serves on the board of the Orange County Performing Arts Center.

He was also recently re-appointed by California Senator Dianne Feinstein to chair the Federal Judicial Advisory Committee for the Central Judicial District, which screens individuals applying for federal judicial vacancies. 

Along with Aitken and his firm of Aitken, Aitken, Cohn, Judge Carter also appointed Lexi Hazam of the firm, Lieff Cabraser Heiman & Bernstein, LLP and retired federal judge Stephen Larson, who originally voiced the idea of a co-counsel with Aitken in his proposal to Carter. 

The ensuing wave of attorneys will work with the co-lead counsels and a trio of Special Masters appointed by Carter – Judge James Smith, Bradley O’Brien and Daniel Garrie – to set up discovery schedules, figure out legal fees, monitor court orders and keep the court generally informed. 

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According to the Dec. 20 court order issued by Carter, he is expecting a trial to begin in September 2023.

Carter also has set aggressive deadlines for filing documents with the court, sending a message to the lawyers involved that he expects momentum. 

During his December hearing, Carter asked attorneys lots of questions about how they’ll address discovery in the face of ongoing federal investigations and court actions.

He also asked attorneys about balancing their clients’ monetary relief claims against potential injunctive relief for public safety. 

Aitken argued to Carter that “the two goals were completely compatible.”

“Seeking monetary relief for victims will highlight the faults which caused the tragic leak in the first instance,” Aitken said, “and can establish a basis for the court to make necessary corrections to protect the environment going forward.”

According to his order, Carter is expected to hold a status conference on Jan. 19. 

A consolidated class action complaint – melding all the existing lawsuits – is scheduled to be filed by the end of the month on Jan. 28.

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