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Lawsuit Update, November 22, 2022

On PROGRESS (or lack thereof) in the Matter of MAKE UC A GOOD NEIGHBOR, PEOPLE’S PARK HISTORICAL DISTRICT ADVOCACY GROUP, and PEOPLE’S PARK COUNCIL vs. BERKELEY CITY COUNCIL, MAYOR JESSE ARREGUIN, CITY OF BERKELEY, and REGENTS OF THE UNIVERSITY OF CALIFORNIA d.b.a. UNIVERSITY OF CALIFORNIA AT BERKELEY, Alameda County Superior Court Case No. RG21105966:

Our lawsuit on behalf of three (3) People’s Park groups commenced over a year ago, August 2, 2021, as a Petition for Writ of Mandate against the Berkeley City Council and Mayor for violation of the California open-meeting law (the Ralph M. Brown Act) and for violation of certain laws, including Berkeley Measure L and Measure N (true copies of which are attached to this email message).

Berkeley Measure L and Measure N (PDF)

The case, originally a Petition against the City Defendants, has now morphed essentially into a Complaint for Breach of Contract against the University of California (“UC”).

Under the purview of Hon. Frank Roesch, an Alameda Superior Court judge, People’s Park’s pleadings have now been amended four (4) times in response to demurrers and other motions designed to defeat the people’s efforts to challenge the Berkeley City Council and Mayor’s secret agreement with UC, a deal by which the City corruptly colluded with UC to sell out the public interest in controlling overcrowding, in receiving equitable compensation for City services, in maintaining low-income housing, and in preserving parks and open space within the City limits, most notably, People’s Park.

On behalf of People’s Park Council and the two other non-profit community groups, I filed the 4th Amended Petition and Complaint on November 17, 2022, and directed a copy to David M. Robinson, Chief Campus Counsel for UC Berkeley. I then appeared before Judge Frank Roesch the following morning in a Zoom hearing for Case Management and Compliance. The next Case Management Conference is set for February 3, 2023, at 9:00 a.m. in Dept. 17.

The current incarnation of this People’s Park lawsuit, namely the 4th Amended Petition and Complaint, largely consists of an action against the Regents of the University of California (UC) alleging breach of contact. Specifically, UC breached multiple agreements with People’s Park Council and with the founding Park gardening group, People’s Park Project/ Native Plant Forum, agreements that date back as far as 1978 and 1979.

At least two (2) of these agreements were written and signed by representatives for People’s Park and the UC Berkeley campus administration, the Letter of Agreement dated May 8, 1978, and the Letter of Understanding, dated January 5, 1979. Some of the other agreements, both written and verbal, expressed and implied, were described in an open letter dated August 31, 1979, from Associate Vice Chancellor T. E. “Ted” Chenoweth to his boss, Vice Chancellor R. F. “Bob” Kerley. True copies of all three (3) contractual “Letters” are attached to this email message.

3 Letters of Agreement – University of California, Berkeley Campus Chancellor’s Office and the People’s Park Project/Native Plant Forum (PDF)

UC had systematically breached its solemn agreements with People’s Park organizations for many years, even before the most recent wanton and tragic acts of destruction, especially those wrought last summer, 2022. We will pursue the ongoing action for breach of contract, as well as planning to claim property damages in a separate proceeding.

Breach of contract may not be a crime, it’s true, but destruction of property and vandalism ARE indeed crimes. UC has wantonly and brazenly acted to destroy People’s Park, harming and killing trees, shrubs, wildlife habitat, and many other landscape features, including damage to the ramp for the People’s Stage.

These living items belong to the people, by and through the People’s Park organizations and volunteers who created them, bought and paid for them, installed and planted them. These items were and are NOT the property of UC or the Campus Administration. The People’s Park agreements that UC has violated are proof of UC’s knowledge, intent, and malice that underlie their recent wave of senseless damage, destruction, and desecration.

UC has willfully stifled and vandalized the fruits of our creativity. UC has also heartlessly employed unfortunate social ills and challenges, such as homelessness and drug use, as a cynical weapon to discredit and defame People’s Park and the Park community, blaming the victim for the very problems of neglect that UC has fostered and focussed upon the sacred ground of People’s Park.

With unity, persistence and love, we can hold UC accountable for these wrongs, and commence the process of transforming the Berkeley campus administration from a purveyor of public corruption and higher ignorance, into an institution of higher learning and public cooperation.

Wishing good luck and a happy holiday to all,

David

DAVID L. AXELROD,
Attorney at Law

Documents:

Berkeley Measure L and Measure N (PDF)

3 Letters of Agreement – University of California, Berkeley Campus Chancellor’s Office and the People’s Park Project/Native Plant Forum (PDF)

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Update on legal action to protect People’s Park, July 21, 2022

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

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PRESS RELEASE – Community groups continue fight against secret, illegal agreement between the City of Berkeley and UC Berkeley

For Immediate Release

For Additional Information:
Harvey Smith, peoplesparkhxdist@gmail.com, 510.684.0414

(January 31, 2022) – A coalition of community groups filed a lawsuit to fight the secret, illegal agreement that the City of Berkeley signed with UC Berkeley — giving UC Berkeley a blank check for unfettered growth. The agreement, signed in July 2021, prevents the City of Berkeley from filing any further legal action against UC Long Range Development Plan (LRDP) and withdrew the city’s objection to the destruction of several historic buildings and to the eviction of tenants from their rent controlled homes.

Three community organizations — Make UC a Good Neighbor, People’s Park Historic District Advocacy Group (PPHDAG) and People’s Park Council (PPC) — amended their Petition on January 20, 2022 that challenges the City of Berkeley’s agreement with UC Berkeley regarding their LRDP. The Petition alleges the vote on the agreement violates the requirements of the Brown Act, which mandates local government to conduct business at open and public meetings.

“The residents of Berkeley will be saddled with this onerous agreement long after the Mayor, Chancellor, City Council members and Regents are gone from their positions. The basic principles of open government have been shamelessly tossed aside for purposes of political expediency,” according to Harvey Smith, member of the People’s Park Historic District Advocacy Group.

The agreement prevents the city from taking legal action against the LRDP for the next 16 years. Although the city’s own analysis estimated UC Berkeley costs the city $21 million per year, the agreement will pay the city only $4.1 million per year, 20 cents on the dollar. Therefore, over the 16 years Berkeley taxpayers will be responsible for covering a deficit of over $250 million. Three other cities hosting UC campuses have negotiated much more favorable agreements, including the mandatory production of student housing.

The lawsuit cites the action of the Berkeley City Council to conclude “a secret agreement in closed session, never acknowledged, approved or disclosed in public session.” The Petition to the court also cites Measure L, an ordinance passed by Berkeley voters in 1986, which mandates “That wherever public parks and open space currently exist in Berkeley, such use shall continue and be funded at least to allow the maintenance of the present condition and services.” The agreement violates voter-approved Measure L by collaborating in the destruction of People’s Park, a user-developed and community-controlled open space in the South Campus area of Berkeley.

Additionally cited is Measure N, approved by voters in 1988; the secret agreement is described as running “afoul of the intent and aspirational policies set forth in Berkeley Measure N,” which requires the city to “use all available lawful means to ensure that public agencies abide by the rules and laws of the city and that these agencies pay taxes and fees, comparable to those paid by private citizens and business to support their fair share of city services.”

Although the Berkeley City Council had also resolved on multiple occasions to support tenant rights, and specifically the interests of tenants evicted from 1921 Walnut Street, Berkeley, the agreement bound the City “to not challenge the upcoming 2021 LRDP and UC’s Anchor House [1921 Walnut Street] and People’s Park housing projects.”

The lawsuit further stipulates that the City through its agreement with UC will “induce, aid and assist” in destruction of People’s Park as a student and community park and open space and has collaborated in breach of contract by UC Berkeley. “UC has breached its mutual commitments, promises, and written contracts with responsible People’s Park organizations,” which are included in Exhibits A through L of the Petition.

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