AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 138

LARGE ADDITIONAL ATTACHMENT(S) by PUBLIC.RESOURCE.ORG, INC. 136 Second MOTION for Summary Judgment filed by PUBLIC.RESOURCE.ORG, INC., 137 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by PUBLIC.RESOURCE.ORG, INC. (This document is SEALED and only available to authorized persons.) filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Errata 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38 FILED UNDER SEAL, # 39 Exhibit 39 FILED UNDER SEAL, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49 FILED UNDER SEAL, # 50 Exhibit 50 FILED UNDER SEAL, # 51 Exhibit 51 FILED UNDER SEAL, # 52 Exhibit 52 FILED UNDER SEAL, # 53 Exhibit 53 FILED UNDER SEAL, # 54 Exhibit 54 FILED UNDER SEAL, # 55 Exhibit 55 FILED UNDER SEAL, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58 FILED UNDER SEAL, # 59 Exhibit 59 FILED UNDER SEAL, # 60 Exhibit 60 FILED UNDER SEAL, # 61 Exhibit 61 FILED UNDER SEAL, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69 FILED UNDER SEAL)(Bridges, Andrew)

EXHIBIT 65

Defendant's Name: Max Cardin Harris
PFN: DSM428

CEN:7819388
CEPD REPORT #16FRE0833
DECLARATION IN SUPPORT OF PROBABLE CAUSE

THE UNDERSIGNED HEREBY DECLARES:

1.

That she ls an INSPECTOR with the Alameda County District Attorney's Office, Oakland, California

2.

That the contents of this declaration, provides probable cause to believe the above-named defendan~
committed the following offenses:
b.) PC 192(b)

3.

I declare under information and belief that the following is true and correct:

On December 2nd 2016, a fire took place at a warehouse commonly known as the Ghost Ship, located
at 1309 31st Avenue. The warehouse was the venue for a music event that night and approximately 100 peoo e
were in attendance. The fire started on the first floor in the northwest corner of the warehouse at
approximately 11:20 PM. As a result of the fire, thirty-six (36) individuals died from smoke inhalation. Because
the building was largely consumed in the fire, the exact cause is classified as undetermined.
st

Derick Ion Almena was the lease holder for the entire property at 1309 31 Avenue. Almena too
possession in November 2013. The term of the lease was from November 11, 2013 until November 30, 2018.
The area where the warehouse was located was zoned for light industrial and its permitted use was as a
warehouse, according to City of Oakland planning building and fire codes. Neither the terms of the lease nor
the local statutes permitted the warehouse to be used as a residence. After taking possession, Almena and his
family moved into the warehouse in violation of the lease, the Oakland Municipal code and the California F re
Safety code. Almena began to sublet space inside the warehouse, allowing individuals to live inside the
warehouse. Residents reported paying Almena anywhere from 350 to 1400 dollars a month for hving space
inside the warehouse.
Almena allowed and encouraged tenants to use non-conventional building materials that he col ected
to create their living spaces. These non-conventional building materials included recycled dry wood, such as
fence boards, shingles, w indow frames, wooden sculpt ures, tapestries, pianos, organs, wooden furniture, RV
trailers, rugs, and other ramshackle pieces. Residents reported that if they put anything in their indlVtdua
living spaces that did not conform to Almena's idea as to how the warehouse should look, he would order it to
be removed. The manner In which these non-conventional building materials were used was a violat on of the
Oak/and M unicipal Code and California Fire Safety c:ode.

1he building bf storing
. . . and otller
af flaa:

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In 2014, Almena allowed Max Harris to live In the warehouse and made him the "Creative Director."
Harris collected rent, mediated disputes between residents and acted as an intermediary between Almena and
the owners of the warehouse. Between 2014 through December 2016, Almena and Harris allowed up to 25
people at one time to live and work in the warehouse. During this time, neither Almena nor Harris sought a
variance in the zoning regulations or a permit to change the use of the building from light industrial to hve
work, in violation of the Oakland Municipal code and the California Fire Safety code.
From November 2013 until December 2016, Almena advertised the upstairs space inside the warehouse

as a venue for music events and social gatherings, knowing it was a violation of the City of Oakland Municipal
code. Often times Almena allowed as many as 100 people to gather inside this unsafe and unpermitted
warehouse. He advertised the venue for rent on social media and by word of a mouth.
During the course of Almena and Harris' tenancy, law enforcement officials responded to the
warehouse for multiple calls for !;ervice. In many of these cases, officers were met outside the warehouse by
the complaining party. When asked by law enforcement if people lived in the space, Almena and Harris lied to
law enforcement officers by insisting that no one lived in the warehouse. Almena and Harris' actions of
allowing people to live in the building effectively changed the occupancy of the building and triggered the need
for additional fire safety requirements, as outlined by the Oakland Mu nicipal code and the California State Fire
code.
0

OiKe Almena changed the o ccupancy of the building it became his re!:.ponsibiiity under the California

Fire Code to install fire suppression systems such as automatic fire sprinklers, smoke alarms, exit signs, marked
locations for fire extinguishers, and create an evacuation plan. Witnesses state they warned Almena numerous
times about the obvious fire hazard inside the warehouse. Almena's failure to act is a violation of the Oakland
Municipal code and the California Fire Safety code.
During the course of the tenancy, Almena, with the help of Harris, altered the interior of the warehouse
by building a makeshift bathroom, cutting a doorway into a wall, cutting a hole into the roof and opening a
previously sealed window in a wall of the adjacent building. These alterations were all done without the permit
and inspection p;ocess that is designed to insure the safety of people occupying the building and are violations
of the Oakland Municipal code and California State Fire code.
Almena was responsible for the construction of an unsafe staircase from the first floor to the second
floor. At the top of the stairs was, what witnesses described as, a ramp or "gang plank" connecting the stairs to
the second floor. Witnesses describe these wooden stairs as dangerous and narrow, only allowing a group of

people to travel up or down the stairs In a single file. The construction of these stairs was uneven in width and
height according to witnesses who travelled them. The construction and the manner in which the stairs were
constructed was a violation of the 0aldand Munfdpal mete and the callfornia Are code.

te host an electronic dance
lie ewent to take

latday. nthe

During the course of their possession of the bulldin& Almena and Harris acted knowln&IY and with dlsfeprd

for the risk when they:

•
•

Allowed Individuals to live In the warehouse and deceived the police, fire department and owners about
that fact;
Allowed large groups to assemble In the warehouse for musical events in the space and on Decembs
2nd, 2016 they actually blocked one of two points of egress;

•

Conducted unpermltted and uninspected construction, including electrical work;

•

Allowed the floor to celling storage of large quantities of highly flammable materials that created a
deadly and dangerous space;

Almena's and Harris' actions were reckless, creating a high risk of death. A reasonable person would have
known that acting In that way would create such risk. Their actions were so different from the way an ordinarily
careful person would act in the same situation that their actions amounted to a disregard for human life. Their
reckless actions were the proximate cause of the death of the 36 individuals trapped Inside the warehouse
when the fire started.

I dedare under penalty of perjury under the laws of the State of California that the foregoing is correct.

Dated: June 5. 2017 at Oakland, California

~k;,~

Inspector Cristi~arbison, #286