Writ DENIED!!!! - The Bear Insider

Bearbits · **Writ DENIED!!!! -** 09-04-2008, 04:12 PM

Disposition date (YYYY-MM-DD): 2008-09-04
Disposition description: Petition summarily denied by order
Disposition status as of 2008-09-04: Final
Notes:
On August 26, 2008 the Alameda County Superior Court filed an "Order after Hearing" (Exh. 26) and "Respondents' Amended Judgment," which was "effective and enforceable immediately." (Exh. 25 at 281:10-11.) The following day appellants filed a Notice of Appeal. (Exh. 27.) In prior briefing respondents represented that if appellants filed their Notice of Appeal and contemplated Petition for a Writ of Supersedeas and Request for an Immediate Stay within two business days they "will continue to take no further action to implement the Southeast Campus Integrated Projects until the Court of Appeal rules on any such immediate stay request." (Exh. 20 at 246:7-13.) Appellants objected to what they characterized as the respondents' attempt to substitute a voluntary stay in lieu of a court-ordered stay. (Exh. 24.)

On August 28, 2008 appellants filed a Petition for Writ of Supersedeas, Mandate, Prohibition or Other Appropriate Relief and supporting documents. The petition prays for inter alia an immediate temporary stay of the University's threatened construction-related activities, an immediate 20-day extension pursuant to Code of Civil Procedure section 1094.5, subdivision (g), and the issuance of a writ of supersedeas. On September 3, 2008 respondents filed an Opposition to Request for Immediate Stay and to Petition for Writ of Supersedeas, etc. and also moved that we take judicial notice of six volumes of exhibits previously filed in conjunction with an earlier writ petition, California Oak Foundation v. The Regents of the University of California, A122172.

By operation of law an automatic 20-day stay goes into effect if "a stay is in effect at the time of filing the notice of appeal." (Code Civ. Proc. sec. 1094.5, subd. (g).) In the context of this statute, "stay" refers to a judicial stay, not respondents' promise to refrain from further activities. (Ibid. ["the court in which proceedings under this section are instituted may stay the operation of the administrative order or decision"; "no such stay shall be imposed or continued if the court is satisfied that it is against the public interest."].) Because there was no judicial stay in effect when the notice of appeal was filed, the statutory 20-day stay is not in effect.

The motion that we take judicial notice, pursuant to Evidence Code sections 459 and 452, subdivision (d)(2) of the six volumes of exhibits previously lodged with this court in conjunction with Case Number A122172 is granted.

The petition for a writ of supersedeas, mandate and/or prohibition and the related requests for an immediate stay and a 20-day stay are denied. (McGuiness, P.J., Siggins, J., and Jenkins, J.)