AUG-20-2008 WED 10:53 AM Sanger & Olson FAX NO. 415 693 9322 P.

02

1 FILED BY FACSIMILE

2 JOHN M. SANGER, ESQ. (SBN 49758)

CHARLES R. OLSON, ESQ. (SBN 130984)
3 SANGER & OLSON, A Law Corporation
576 Sacramento Street, Seventh Floor
4 San Francisco, CA 94111-3023
Telephone: 415-693-9300
5 Facsimile: 415-693-9322

6 CHARLES F. ROBINSON, ESQ (SBN 113197)

ERIC K. BEHRENS, ESQ. (SBN 79440)
7 KELLY L. DRUMM, ESQ. (SBN 172767)
UNIVERSITY OF CALIFORNIA
8 1111 Franklin Street, 8th Floor
Oakland, CA 94607-5200
9 Telephone: 510- 987-9800
Facsimile: 510-987-9757
10
Attorneys for Respondents,
11 THE REGENTS OF THE UNIVERSITY OF CALIFORNIA;
UNIVERSITY OF CALIFORNIA, BERKELEY; and
12 EDWARD J. DENTON, in his official capacity

13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
FOR THE COUNTY OF ALAMEDA
15

16
PANORAMIC HILL ASSOCIATION, a FILED BY FACSIMILE
17 non-profit corporation,
Case No. RG 06301644
18 Petitioner,
RESPONDENTS' [PROPOSED]
19 V. AMENDED JUDGMENT

20 THE REGENTS OF THE UNIVERSITY OF

CALIFORNIA, an agency of the State of Date: 2008
21 California, Dept: 512
Judge: Hon. Barbara Miller
22 Respondent.

23

24

25
26 1\\

27 1\1

28 111

Case No. RG 06301644: RESPONDENTS' [PROPOSED] AMENDED JUDGMENT

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1 \11

2 CITY OF BERKELEY, a municipal

corporation,
3
Petitioner/Plaintiff,
4
v.
5 )
UNIVERSITY OF CALIFORNIA, )
6 BERKELEY; REGENTS OF THE )
UNIVERSITY OF CALIFORNIA; and DOES)
7 2 THROUGH 50, inclusive )
)
8 Respondents/Defendants. )
)
9 )
)
10 )
CALIFORNIA OAK FOUNDATION, SAVE )
11 THE OAKS AT THE STADIUM, )
MCGEE-SPAULDING-HARDY HISTORIC )
12 INTEREST GROUP, DONA SPRING, )
DOUG A. BUCKWALD, SARAH )
13 SHUMER, HENRY NOM, LINDSAY )
VUREK, PATRICIA EDWARDS, ANNA )
14 MARIE TAYLOR, STAN SPRAGUE, and )
CAME SPRAGUE, )
15 )
Petitioners/Plaintiffs, )
16 )
v. )
17 )
THE REGENTS OF THE UNIVERSITY OF )
18 CALIFORNIA, an agency of the State of )
California, and DOES )
19 )
Respondents/Defendants, )
20 )
and )
21 )
DOES XXI-XXX )
22 )
Real Parties in Nterest, )
23

24

25

26

27

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1 Having considered the issues fram ed by the operative pleadings, the administrative
2 record, and briefs filed by the p art ies in these p artially consolidated actions; having heard or al
3 argument by counsel for all p ar
ties in these matters; and having issued on June 18, 2008 an Order

4 Granting in Part and Denying in Part Petitions for Writ of Mandate ("Order"),
5

6 IT IS O RDERED, ADJUDGED AND DECREED that:

7
8 1. Insofar as petitioners' claims under the California Environmental Quality Act
9 (Pub. Resources Code, § 21000 et seq.) ("CEQA") are concerned, the Petitions for Writ of
10 Mandate filed by petitioners Panoramic Hill Association, City of Berkeley and California Oak
11 Foundation, et al. ("Petitioners") are granted solely on the ground that the record lacks support
12 for findings and conclusions in the EM that doubling the number of capacity events at the
13 California Memorial Stadium ("CMS") as part of Phase 2 of the CMS Seismic Corrections and
14 Program Improvements, which is one component of the Southeast Campus Integrated Projects
15 (the "Project"), will cause significant environmental effects that are unavoidable. (Order, pp.
16 121-122.) In other respects, insofar as Petitioners' CEQA claims are concerned, the Petitions are
17 denied and judgment is entered in favor of Respondents The Regents of the University of
18 California,et ("The University").
19

20 2. Insofar as Petitioners' Claims under the Alquist-Priolo Earthquake Fault Zoning

21 Act (Public Resources Code, § 2621 et seq.) ("Alquist-Priolo") are concerned, the Petitions are
22 granted solely on the grounds that:
23 a. The University is not exempt from the requirements of Alquist-Priolo
24 (Order, pp. 10-17);
25 b. The Student Athlete High Performance Center ("SA C") project
26 includes the following alterations to the CMS within the meaning of Mquist-Priolo:
27 (i) a grade beam to be installed along the base of the CMS west wall;
28 (ii) alterations to two CMS staircases; and

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1 (iii) "ground floor slab penetrations" in CMS proposed to facilitate the

2 installation of the SAHPC telecommunications system; and
3 c. At the time it approved the SAHPC, the University had not determined
4 value of the foregoing alterations to CMS identified in Paragraph 2.b, above.
5 In all other respects, insofar as Petitioners' claims under Alquist-Priolo are concerned,
6 Petitions are denied and judgment is entered in favor of the University.
7
8 3. The Clerk of the Court shall issue the accompanying Peremptory Writ
9 Mandate, ordering the University to do the following:
10 a. suspend the approval of the SAHPC until the University demonstrates
11 the cost to construct the foregoing alterations to the CMS described above in Paragn
12 2.b, is less than fifty percent of the value of the CMS, or removes such alterations
13 CMS from the SAHPC project; and
14 b. pursuant to Public Resources Code section 21168.9(c), refrain &
15 approving CMS Phases 2 or 3 of the Integrated Projects until the University (i) withdra
16 the proposal to increase the number of capacity events at the CMS as part of the Proje
17 or (ii) if the University chooses to retain them, until the University provides substanl
18 evidence to support its findings and conclusions in the EIR that doubling the number
19 capacity events at the California Memorial Stadium will cause significant envi
20 effects that are unavoidable.
21
22 4. The Court deems the University's Response, filed June 27, 2008, to the Court'
23 June 18, 2008 Order as a return to the Peremptory Writ of Mandate. The University's Response
24 to the Order includes: (1) further environmental review of modifications to the Project and th
25 SAHPC set forth in items (2) and (3) below in response to the court's Order, and modification o
26 CEQA findings related thereto, including a subsequent finding superseding and effectivel:
27 mooting the finding regarding unavoidable significant effects of increased capacity events; (2
28 removal from the Project of the additional capacity events referred to in Paragraph 1, above; an(

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1 (3) removal of all alterations to the CMS included in the S AH PC project referred to in Paragraph
2 2.b. Such actions demonstrate compliance with the Peremptory Writ of Mandate.
3
4 5. In accordance with Code of Civil Proced ure sections 1032(a)(4), 1084.5 and
5 1095, and consistent with the discretion that section 1032(a)(4) gives the co (see Lincoln v.
6 Schurgin (1995) 39 Cal.App.4th 100, 105), the court apportions costs based on the degree to

7 which the p ar tially consolidated proceedings. Because the

ties have prevailed in these p ar

8 University has prevailed on the bulk of Petitioners' claims, the Court awards the University
9 eighty-five percent of its costs, which shall be borne by Petitioners as follows: one-third by City
10 of Berkeley, one-third by Panoramic Hill Association and one-third by California Oak
11 in Code of
Foundation, et al. Costs are determined in accordance with the procedures set forth
12 Civil Procedure sections 1032, 1033 and 1033.5, and the corresponding Califo rni a Rules o f
13 Court. Any p arty wishing to seek attorney fees may do so by noticed motion.
14
15 6. On July 23, 2008, after the Court issued its July 22, 2008, Judgment, Petitioners
16 filed a Motion to Vacate Judgment and for New Trial.
17
18 7. On August 8, 2008, the Court issued its Order to Show Cause Why Court Should
19 Not Enter Amended J udgment.
20
21 8. On August 15, 2008, Petitioners withdrew their Motion to Vacate Judgment and
22 for New Trial.
23
24 9. Also on August 15, 2008, Respondents filed a Notice of Respondents' Decision
25 Not to File a Supplemental Return, in which they indicated that they would not file the
26 supplemental return that the Court authorized them to file in paragraph 5 of the July 22, 2008,
27 Order A fter Hearing.
28

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1 10. On August 19, 2008, Petitioners filed a Response to Order to Show Cause.

3 11. Also on August 19, 2008, Respondents filed a Response to Court's August 8

4 2008, Order to Show Cause.

6 12. Based on representations Respondents made in their Response to Court's

7 8, 2008, Order to Show Cause, the preliminary injunction entered on February 9, 2007, is

8 dissolved.

10 13. This Amended Judgment is effective and enforceable immediately.

11
DATED: 2008
12 . BARBARA J. MILLER
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2 Dated: August 20, 2008

5 Jo , Esq.
At orn- or Respondent
6 THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA;
7
UNIVERSITY OF CALIFORNIA,
8 BERKELEY; and EDWARD J.
DENTON, in his official capacity
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PROOF OF SERVICE
2 I, Whitney Carlson, the undersigned, declare under penalty of perjury under the laws of
the State of California that the following statements are true and correct:
3
I am at least 18 years of age and am not a party to the within action.
4
2. My business address is Sanger & Olson, 576 Sacramento Street, Seventh Floor,
5 San Francisco, California. My mailing address is Sanger & Olson, 576 Sacramento Street,
Seventh Floor, San Francisco, California 94111-3023.
6
3. On August 20, 2008 I served the attached document(s) entitled:
7
RESPONDENTS' [PROPOSED] AMENDED JUDGMENT
on the following named persons in this action:
9
Michael R. Lozeau, Esq. Kelly L. Drumm, Esq.
10 LOZEAU DRURY, LLP UNIVERSITY OF CALIFORNIA
1516 Oalc Street, Suite 216 1111 Franklin Street, 8th Floor
11 Alameda, California 94501 Oakland, CA 94607-5200
Fax: (510) 749 -9103 Fax: (510) 987-9757
12
Stephan C. Volker, Esq. Harriet A. Steiner, Esq.
13 LAW OFFICES OF STEPHAN C. MCDONOUGH HOLLAND & ALLEN
VOLKER PC
14 436 —14 fl' Street, Suite 1300 555 Capitol Mall, 9 1h Floor
Oakland, CA 94612 Sacramento, CA 95814
15 Fax: (510) 496-1366 Fax: (916) 444-8334
16
X _ BY MAIL by placing said copy in a sealed envelope for collection and processing for
17 mailing and, being familiar with my employer's mail collection and processing practices, know
that said mail is collected and deposited with the United States Postal Service on the same day it
18 is dated, and know that postage thereon is fully prepaid.
19 BY PERSONAL SERVICE by causing the same to be personally served by on the
above-named person at the above-stated address on this date.
20
X BY FACSIMILE by transmitting the same by facsimile transmission to the above-named
21 person at the above-stated fax number, and received a printed confirmation of successful
facsimile transmission.
22
BY OVERNIGHT MAIL by causing the same to be served via overnight mail on the
23 above-named person at the above-stated address on this date.
24
I declare under penalty of perjury under the laws of the State of California that the
25 foregoing is true and correct. Executed this 20th day of August 2008 at San Francisco,
California. /1
26
27
son
28