John De Herrera v. The Santa Barbara County Board of Supervisors, et al.
Case No: 18CV04913
Hearing Date: Tue Mar 26, 2019 9:30

Nature of Proceedings: Demurrer First Amended Petition

Demurrer to Amended Petition for Peremptory Writ of Mandate

ATTORNEYS: John De Herrera, Petitioner in Pro Per

Paul N. Frimmer for Respondents The Bellosguardo Foundation, Jeremy Lindaman, and Dick Wolf

Lina Somait, Deputy County Counsel, for Respondent Santa Barbara County Board of Supervisors

John S. Doimas, Deputy City Attorney, for Respondents The Mayor and City Council of City of Santa Barbara

RULING: The demurrer of respondents Jeremy Lindaman, Dick Wolf, and The Bellosguardo Foundation to petitioner’s first amended petition for writ of mandate is sustained without leave to amend.

BACKGROUND:

In this action, petitioner John De Herrera (“Herrera”), a local artist, seeks a writ of mandate commanding respondents Jeremy Lindaman (“Lindaman”), Dick Wolf (“Wolf”), and The Bellosguardo Foundation (“Foundation”) to open the Bellosguardo estate to the public. Bellosguardo is a 23-acre property located at 1407 East Cabrillo Boulevard, Santa Barbara, California. In 2014, Foundation, a 501(c)(3) non-profit corporation, was established and given title to Bellosguardo pursuant to the will of the late mining heiress, Huguette Clark. It was Ms. Clark’s wish that the property would be preserved and transformed into a public museum. Following its incorporation in 2014, Foundation, through its board of directors, elected Lindaman as President. Wolf is the Board Chair of Foundation.

Herrera contends that Foundation, Lindaman, and Wolf are mismanaging Bellosguardo by not taking the necessary steps to open the property to the public. Herrera’s first amended petition (“FAP”), filed on December 5, 2018, asks the Court to order respondents to open the Bellosguardo estate’s upper lawn to the public, on a limited basis, until public hearings can be held on the status of the property. Herrera also asks the Court to order the Mayor and City Council of the City of Santa Barbara (“City”) to hold public hearings on the property. Herrera contends that City is obligated to hold public hearings because respondents have failed to open Bellosguardo to the public as legally mandated.

Foundation, Lindaman, and Wolf now demur the FAP on the grounds that (1) Herrera lacks standing to bring the petition and (2) Herrera does not allege facts entitling him to relief. Herrera opposes the demurrer.

ANALYSIS:

The party on whom a petition for writ of mandate has been served may respond by demurrer. Code of Civil Procedure Section 1089 provides, in relevant part:

“[T]he party on whom the writ or notice has been served may make a return by demurrer, verified answer or both. If the return is by demurrer alone, the court may allow an answer to be filed within such time as it may designate. . . .”

A demurrer tests the legal sufficiency of a pleading by raising questions of law. Rader Company v. Stone (1986) 178 Cal.App.3d 10, 20. In determining the merits of a demurrer, all material facts properly alleged in the pleading and those that arise by reasonable implication, but not conclusions of fact or law, are deemed admitted by the demurring party. Moore v. Conliffe (1994) 7 Cal.4th 634, 638; Interinsurance Exchange v. Narula (1995) 33 Cal.App.4th 1140, 1143. In addition to the facts actually pleaded, the court considers facts of which it must or may take judicial notice. Cantu v. Resolution Trust Corporation (1992) 4 Cal.App.4th 857, 877.

Herrera asks the Court to issue a peremptory writ of mandate, commanding respondents to open Bellosguardo’s upper lawn to the public until public hearings can be held. “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially [directs] as a duty resulting from an office, trust, or station.” Code Civ. Proc. §1085, subd. (a). A writ may only be issued, however, “where there is not a plain, speedy, and adequate remedy in the ordinary course of the law.” Code Civ. Proc. §1086. Thus, to obtain mandamus relief, the petitioner must allege that the respondent has a mandatory duty imposed by law, that the respondent failed to perform its duty, and that the petitioner has no plain, speedy, and adequate remedy at law to compel performance of the duty. County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 593.

Foundation, Lindaman, and Herrera challenge the FAP on the ground that Herrera does not have standing to bring the action. The Court agrees and will sustain the demurrer on that basis. Foundation is a 501(c)(3) nonprofit corporation. (FAP, p. 2:9-10.) Under California law, with limited exceptions, only the Attorney General has standing to enforce the terms of a charitable trust. “The primary responsibility for supervising charitable trusts in California, for ensuring compliance with trusts and articles of incorporation, and for protection of assets held by charitable trusts and public benefit corporations, resides in the Attorney General.” Gov. Code §12598, subd. (a); see also, Patton v. Sherwood (2007) 152 Cal.App.4th 339, 342 (“Other than the Attorney General, only certain parties who have a special and definite interest in a charitable trust, such as a trustee, have standing to institute a legal action to enforce the assets of the trust.”). Where a person has no standing, he or she cannot state a cause of action and a general demurrer will be sustained. City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 208.

Respondents demur to Herrera’s FAP on the additional ground that the petition fails to allege facts warranting writ relief. As discussed above, in order to obtain writ relief, a petitioner must show (1) a duty on the part of the respondent, (2) that the respondent failed to perform the duty, and (3) the inadequacy of other legal remedies. County of San Diego v. State of California, supra, 164 Cal.App.4th 580, 593. The petitioner must also show that he or she has a “beneficial right to the performance of that duty.” City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 868. The requirement that the petitioner have a beneficial right to performance has been generally interpreted to mean that one may obtain writ relief “only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.” Carsten v. Psychology Examining Committee (1980) 27 Cal.3d 793, 796; see also, Code Civ. Proc. §1086 (writ petition may only be granted where petitioner is a “beneficially interested” party).

Here, Herrera alleges that he is an artist who lives and works in Santa Barbara and that he wants Bellosguardo to be opened to the public so that he and other members of the public can “picnic on the lawn” and “promote the arts.” (FAP, ¶ 10:1-5.) Herrera asserts that Bellosguardo “is astonishingly beautiful” and would “surely [be] an emotional experience for many should they ever be afforded the opportunity [to visit the property].” (FAP, p. 9:26-27.) Finally, Herrera alleges that under the terms of Ms. Clark’s will “Foundation’s true legal mandate is to open Bellosguardo as a public space for the arts and art education.” (FAP, p. 9:8-9.) However, nowhere in his petition does Herrera allege that he has “some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.” Carsten, supra, 27 Cal.3d at 796.

The case of Braude v. City of Los Angeles (1990) 226 Cal.App.3d 83 is on point. In Braude, a city council member filed a petition for writ of mandate to set aside the city’s approval of the construction of a downtown office complex next to the Harbor Freeway. The petitioner objected to the project because of the serious impact it would have on traffic congestion in the area. The petitioner argued that he had a “beneficial interest” in halting the development because he would be “personally, detrimentally affected by the increased traffic congestion . . . as he commute[d] to and from his office downtown.” Id., at 87-88. The court rejected this argument, stating:

“[I]t appears [the petitioner] has failed to demonstrate he has an interest not held in common with the public at large, or in any way more compelling than anyone else who may use the Harbor Freeway. [The petitioner] shares his beneficial interest with hundreds of thousands of people who use the Harbor Freeway everyday. . . . Thus, while [the petitioner] may have a legitimate interest in preventing gridlock, he does not have a beneficial interest over and above the public at large sufficient to have standing to seek relief against the city council by writ of mandate . . .” Id., at 88-89.

In this case, Herrera, like the petitioner in Braude, has not demonstrated that he “has an interest not held in common with the public at large, or in any way more compelling than anyone else” who may benefit from the opening of Bellosguardo to the public, and therefore, he has failed to establish that he is a “beneficially interested” person as required under Code of Civil Procedure Section 1086 and respondents’ demurrer to the FAP will be sustained.

A court does not abuse its discretion by sustaining a demurrer without leave to amend where it appears from the pleading and the applicable law that there is no reasonable possibility that an amendment could cure the pleading’s defect. Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486. It is the plaintiff’s burden to demonstrate how the pleading might be amended. Hendy v. Losse (1991) 54 Cal.3d 723, 742; see also, McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 792 (“the plaintiff [has the burden] to show what facts he or she could plead to cure the existing defects in the complaint”). Here, petitioner’s only substantive response to the demurrer is that the demurrer is untimely because it was filed more than 30 days after the FAP was served. Code Civ. Proc. §430.40, subd. (a). However, petitioner did not file a proof of service with FAP, so the Court has no way of determining whether the demurrer is timely or not. Given that petitioner has made no attempt to explain how he might amend his petition to state a claim for mandamus against respondents, the demurrer will be sustained without leave to amend. Judgment is ordered entered in favor of Foundation, Lindaman, and Wolf and against petitioner.