Court Says Appeal Must Wait for Final Trial Court Judgment; Injunction in Place At Least Until Aug. 25

By Richard Brenneman
Friday August 08, 2008 - 05:39:00 PM

Three state appellate court justices said Thursday that it is too soon for them to hear the plaintiffs’ appeal challenging the trial court decision on UC Berkeley’s plans for Memorial Stadium and the adjacent grove The ruling leaves an injunction barring construction and demolition of the grove in place at least until after a hearing later this month.  

Presiding Justice William R. McGuiness of Division Three of the court’s First District was joined in the ruling by Associate Justices Peter J. Siggins and Martin J. Jenkins 

Michael Lozeau, attorney for the Panoramic Hill Association, and Stephan Volker for the California Oak Foundation had filed an appeal challenging the July 25 ruling by Alameda County Superior Court Judge Barbara J. Miller. 

The judge ruled largely in favor of the university’s plans, though rejecting the university’s claim that it is exempt from the state law governing construction on earthquake faults and its theory of how the law’s economic limitations on additions and renovations to the stadium should be calculated. 

The appellate ruling said that while Miller issued three rulings and a document she called a “judgment“, she has not yet issued the final judgment which would end her jurisdiction over the case and allow an appeal, because she gave the university until Aug. 21 to file a supplemental filing with her court.. The preliminary injunction therefore will remain in effect at least until August 25, when the trial court will consider the plaintiffs’ motion to vacate its judgment and to grant a new trial.  

“Between Michael and myself, we will exercise every option to keep it in place,” Volker said. 

That hearing, possibly the last while Miller still exercises jurisdiction over the case, comes just five days before the Cal Bears host their first home game at the stadium against Michigan State University. 

“We will continue to do whatever is necessary to ensure the safety of the campus community, the people at the game and the people in the trees,” said Dan Mogulof, the university’s executive public affairs director.