The First Appellate Court with the help of the People’s Park Historic District Advocacy Group has just taken down another of University of California’s (UC) attempts to take the park. On Friday, UC had asked Judge Roesch for permission to erect a fence around the park and Roesch denied them, saying I’Il see you both in court on July 29, 2022.
Well, UC was back with another complaint on Saturday demanding an expedited rehearing or Motion to Remand and saying they were improperly denied their request for a bond to cover increased construction cost incurred by the stay.
Today the First Appellate court said: NO REHEARING OR REMAND, and NO BOND. Their order instructed our team to file a response to UC Motion to Remand by August 3rd. We may see that response sooner than August 3rd. Remember the trial on the merits is July 29, 2022.
Letter from David L. Axelrod, Attorney for the Petitioners
July 21, 2022
To:
The PEOPLE,
PEOPLE’S PARK COUNCIL,
MAKE UC A GOOD NEIGHBOR, and
People’s Park Historic District Advocacy Group
Blurb – For Immediate Release
Re: Make UC a Good Neighbor, et al. v. City of Berkeley, et al., and U.C.
The above-referenced case started out as a Petition in Alameda Superior Court by People’s Park advocacy groups for a Writ of Mandate against Berkeley City Council, the Mayor, and the City itself, for violation of the Ralph M. Brown Act by the City’s adoption of a secret sell-out agreement with the University of California (UC) in violation of applicable California open-meeting laws.
Soon thereafter, the Court, by Judge Frank Roesch, expanded the action to include the University of California (UC), and later permitted or encouraged causes of action against UC for breach of contractual agreements with People’s Park representatives, namely the People’s Park Council and People’s Park Project/ Native Plant Forum.
As of today, July 21, 2022, in ruling on the City’s Demurrer, Judge Roesch has thrown out the Petition against the City, while the Complaint against UC remains intact. In doing so, Judge Roesch declined to enforce Berkeley’s Measure N, and also concluding that Berkeley’s Measure L does not apply to People’s Park. On behalf of the Petitioners, we argued that the City Respondents have violated Measure N by surrendering to UC, rather than upholding applicable laws, including the California Environmental Quality Act (CEQA) and Measure L, which expressly applies to all “vacant public land . . . used de facto as open space . . .,” whether or not owned by the City.
Judge Roesch also ruled that the Petitioners had failed to file a government claim within six (6) months of the City’s wrongful act. On behalf of the Petitioners, we argued that The Government Claims Statute does not apply to our Petition for Writ of Mandamus, which simply seeks a stay, declaratory judgment, and other equitable relief, rather than being a claim for monetary damages resulting from foreseeable losses that have not yet actually occurred.
Judge Roesch also ruled in favor of a Motion to Strike large segments of the amended Petition, even though the Motion had been untimely filed five (5) days after the deadline approved in a Stipulation of the parties and an Order of the Court.
Robert Perlmutter, attorney for the City, tried to keep the City in the case as a “real party in interest,” but the Court denied this request. Accordingly, the City Respondents are now totally excluded from this case.
The only question is whether to appeal now, based upon the dismissal of all causes of action against the City entities, or to appeal after final judgment is entered in the case in chief. The only remaining now is the Defendant UC. This lawsuit, like People’s Park itself, appears to be hanging by a thread at this time.
As requested by the Petitioners, Judge Roesch did properly take Judicial Notice of the Stay Order issued by the Court of Appeal in a closely-related CEQA case, temporarily preventing destruction of the Park by UC. But he also stated that the Order was “irrelevant” to the Demurrer. Perhaps a similar order, but broader and longer lasting, can be sought in what is the newly revamped and evolved iteration of our case at law aiming to save the Park.
May 1000 parks bloom!!
For Plants and Peace,
DAVID L. AXELROD,
Attorney for the Petitioners,
PEOPLE’S PARK COUNCIL,
MAKE UC A GOOD NEIGHBOR, and
People’s Park Historic District Advocacy Group
