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The deal that ended the city’s lawsuit against the UC Berkeley’s Long Range Development Plan has survived yet another challenge. 

Alameda County Superior Court Judge Bonnie Lewman Sabraw denied a motion filed by Berkeley resident Peter Mutnick calling for an inquiry into his allegations that the settlement should be canceled because it was obtained by “extrinsic fraud.” 

Sabraw’s decision, handed down late Thursday, ruled that Mutnick’s motion failed on two grounds. 

First, she wrote, Mutnick had filed the wrong motion, noting that the court “does not have the jurisdiction to make such an inquiry, even at the request of a non-party, brought inherent to the court’s power to vacate a judgment obtained through intrinsic fraud ... however no such motion to vacate was made in this instance, and so the Motion for Inquiry is” denied. 

Even had Mutnick filed the proper motion, Sabraw wrote, she would have denied it because Mutnick had not shown that extrinsic fraud was involved in forging the pact. 

Declaring his intent to contest the ruling before the First Division of the California Court of Appeal in San Francisco, Mutnick said Monday, “The court was wrong in its application of the law on all of the grounds upon which it based its ruling. 

“The error of the court was not harmless, but caused it to come to a conclusion that was diametrically opposite to the conclusion that must be drawn from the undisputed evidence that was presented, when the proper law is properly applied. 

“Therefore, the court abused its discretion in a most obvious and hideous manner.” 

The Berkeley activist said he plans to file an appeal on Aug. 14., after he receives copies of documents and the court transcripts of Wednesday’s hearing. 

The decision granted Mutnick one small victory from the judge, a denial of the city attorney’s motion to strike City Councilmember Dona Spring’s declaration in support of Mutnick’s motion. 

Deputy City Attorney Zach Cowan represented the city during the hearing. Hope A. Schmeltzer of the University of California’s Office of the General Campus argued on behalf of the UC Regents. 

Mutnick had argued that the city, by keeping the accord secret until the City Council voted its approval, had deprived him and other citizens of the right to examine and comment on the deal until the May 24 council vote. 

That secrecy, he argued, violated the Brown Act, the state law governing the conduct of public officials. 

Spring, who has grown increasingly critical of city staff, filed a declaration supporting Mutnick’s claims and declaring that the accord violates both state law and the city charter, and makes an illegal end run around the California Environmental Quality Act by granting UC the power to veto adverse findings in environmental impact studies as well as potential mitigations. 

Judge Sabraw ruled that Mutnick could have made a more timely intervention while the city’s suit against the university was still pending, and she said there was no evidence his inaction was caused by fraudulent actions by the city or the university.›