UC Berkeley Gym Plaintiffs Drop New Trial Bid

By Bay City News
Saturday August 16, 2008 - 10:11:00 AM

Three plaintiff groups who filed suit to try to stop the University of California, Berkeley from building a new sports training center next to its football stadium Friday withdrew their bid to have a judge reverse her most recent ruling in the case. 

The city of Berkeley, the California Oak Foundation and the Panoramic Hill Association said they're withdrawing their motion for a new trial or a reversal of Alameda County Superior Court Judge Barbara Miller's July 22 ruling "in the interest of the court, the parties and judicial economy." 

In a one-page filing, the plaintiffs said UC Berkeley officials have complied with state law in one aspect of the university's proposed 158,000-square-foot project, which is projected to cost $140 million. 

However, Michael Lozeau, the attorney for the Panoramic Hill Association, which represents homeowners who live near Cal's football stadium, said other important issues remain and Miller will have a show cause hearing on Aug. 25 on whether she should enter an amended judgment in the case. 

"We are very pleased" that the plaintiffs withdrew their motion, UC Berkeley spokesman Dan Mogulof said. 

A UC Board of Regents committee approved building the sports training center next to the university's football stadium, which sits on the Hayward earthquake fault, on Dec. 5, 2006. 

Shortly afterward, a group of people began living in a grove of oak trees next to the stadium to protest the project because it calls for tearing down most of the trees. Several protesters remain at the site. 

In addition, the three plaintiff groups filed suit against the university in late December 2006. 

Miller issued a preliminary injunction on Jan. 29, 2007, which temporarily halted the project. 

But on July 22 she ruled that the university could begin work because it has modified the project to meet her concerns. 

However, Miller kept the injunction in place for another seven days to give the plaintiffs who sued the university time to file an appeal and seek a stay to stop the project during an appeal. 

The California Oak Foundation and the Panoramic Hill Association filed an appeal on July 25, which kept the injunction in place another 20 days. 

On Aug. 7, the state Court of Appeal sent the case back to Miller's courtroom, saying that the injunction should remain in effect for at least two more weeks. 

The appellate court said "the preliminary injunction is not yet dissolved" because final judgment in the case never took effect. 

The court said the injunction "remains in place, subject to future modification by the trial court, as appropriate." 

UC attorney Kelly Drumm said today that the parties in the case have until Tuesday to file legal briefs on the issue of whether Miller should enter an amended judgment. 

Drumm said that if Miller rules in favor of the university again, the plaintiffs will be given an additional seven days to file an appeal and seek a stay. 

Lozeau said the Panoramic Hill Association and the California Oak Foundation probably will re-file their appeal if Miller rules against them again. 

The Berkeley City Council met on July 24 to consider filing an appeal but couldn't muster enough votes to authorize an appeal.