Filed 7/31/20 Humboldt Fishermen’s Marketing Assn. Inc. v. Humboldt Bay Harbor, Recreation & Conservation Dist. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

HUMBOLDT FISHERMEN’S MARKETING ASSOCIATION INC., et al.,

Plaintiffs and Appellants,

v.

HUMBOLDT BAY HARBOR, RECREATION AND CONSERVATION DISTRICT,

Defendant and Respondent.

A158634

(Humboldt County

Super. Ct. No. DR180648)

Plaintiffs Humboldt Fishermen’s Marketing Association, Inc. and Trinidad Bay Fishermen’s Marketing Association, Inc. (jointly, plaintiffs) appeal the trial court’s judgment of dismissal following an order sustaining defendant Humboldt Bay Harbor, Recreation and Conservation District’s (District) demurrer to their first amended complaint for breach of contract, breach of the implied covenant of good faith and fair dealing, nuisance, declaratory relief, and writ of mandate. These claims relate to the District’s alleged failure to dredge certain property under its control and removal of fishing gear storage facilities at the Woodley Island Marina (marina).

We reverse in part. We agree the demurrer was properly sustained as to the nuisance, declaratory relief, and writ of mandate causes of action, but reverse the trial court’s order sustaining the demurrer as to the breach of contract and breach of the implied covenant of good faith and fair dealing claims.

I. BACKGROUND

A. Statement of Facts

Plaintiffs are California nonprofit corporations that represent the interests of commercial fishermen in Humboldt County. Some of their members rent boat slips for their commercial fishing vessels and/or have utilized storage facilities at the marina.

The marina is controlled and operated by the District. The District was created in 1972, and its primary purpose is to encourage, protect, maintain, and provide commercial fishing facilities and uses related to the commercial fishing industry. The District controls various facilities around Humboldt Bay and is responsible for maintaining the environment of the bay. As part of these duties, the District is responsible for maintaining the marina, such as through dredging to avoid potential harm to the commercial fishing fleet. The District’s website states it is “ ‘responsible for completing periodic maintenance dredging on District facilities.’ ”

Currently, commercial fishing vessels often need to wait for high tide to ingress and egress the marina. Due to this decreased access to the marina and the resulting delay in docking, commercial fishing vessels have suffered the loss of live product.

The District also has a responsibility to maintain permitted fishing gear storage facilities pursuant to its California Coastal Commission (Coastal Commission) permit (permit). However, the District recently removed its storage facilities and evicted the fishermen using those facilities. Rather than remedy the permit violation, the District has petitioned the Coastal Commission to modify its permit.

B. Procedural Background

Plaintiffs filed a verified complaint against the District based on its alleged failure to dredge the marina and maintain storage facilities for the commercial fishermen at the marina. They alleged causes of action for breach of contract (first cause of action), breach of the implied covenant of good faith and fair dealing (second cause of action), nuisance (third cause of action), and declaratory relief (fourth cause of action). The complaint also petitioned for a writ of mandate under Code of Civil Procedure section 1085 (fifth cause of action), seeking to compel the District to perform its dredging duties and maintain storage facilities at the marina.

The District filed a demurrer to the complaint, asserting the complaint was uncertain, failed to state facts sufficient to constitute a cause of action, and failed to state whether the contracts giving rise to the breach of contract claims were written, oral, or implied by conduct.

The trial court sustained the demurrer with leave to amend as to all causes of action. Although not raised in the demurrer, the court also questioned whether plaintiffs had standing to pursue a breach of contract claim on behalf of their members.

Plaintiffs filed a first amended complaint (FAC), reasserting the same causes of action. The FAC alleges the District failed to timely dredge the area by the marina, resulting in a decreased harbor space for the commercial fishing fleet and an increased risk to the commercial fishing vessels from “dock fires, fuel spills, and the threat of tsunamis because they may not be able to leave their berths due to the depth of the Marina or other areas under control of the District.” The FAC further asserts the District violated its “mandatory duty” under its permit to provide periodic reports regarding its dredging of District facilities and to maintain storage facilities for commercial fishermen at the marina.

The District filed a demurrer to the FAC. The District argued the contract causes of action were uncertain, plaintiffs lacked standing to assert the contract claims on behalf of their members, and plaintiffs failed to comply with the California Government Tort Claims Act (Gov. Code, § 810 et seq.). As to the nuisance claim, the District argued the claim failed to allege any unlawful conduct giving rise to a nuisance and is barred by natural condition immunity. Finally, the District argued no statutory or legal authority created a ministerial duty for the District to dredge, and no authority mandates the District to create a storage area.

In opposition to the demurrer, plaintiffs first asserted they had both associational standing and, as to the writ of mandate, are “beneficially interested” parties with “ ‘public interest standing.’ ” Next, plaintiffs argued an implicit duty to dredge existed as part of the slip rental agreements because renters must be able to access their slips, and “matters that are required by law are read into the contract.” Plaintiffs also asserted the District had a duty to dredge and, due to the length of time since it had last dredged the area, it lacked discretion as to whether to dredge.

The trial court again sustained the demurrer. It sustained the demurrer without leave to amend as to the nuisance claim because “[t]here is not a factually sufficient statement as to how the failure to maintain a storage facility translates into a public or private nuisance” and the dredging issue is “a naturally occurring condition which the District would have immunity from suit.” The trial court sustained the demurrer with leave to amend as to the remaining causes of action. On the contract claims, the court noted “the facts as alleged appear to require participation of the individual members of each association” and the FAC lacked factual allegations regarding any contractual obligation to dredge or maintain storage facilities. On the declaratory relief and writ causes of action, the court concluded the FAC allegations “do not demonstrate that the [District] has a ‘clear, present and ministerial duty to act in a particular way.’ ”

Plaintiffs declined to amend the complaint and judgment was entered. Plaintiffs timely appealed.

II. DISCUSSION

Plaintiffs contend the trial court erred in sustaining the demurrer because they have associational standing to bring the claims in the FAC, dredging and maintaining storage facilities are implicit in the slip rental agreements, the District has created a dangerous condition and is not immune from the nuisance claim because the marina is improved public property, and the FAC alleges violations of clear, present, mandatory duties to dredge and maintain storage facilities. Plaintiffs also contend the trial court erred in directing them to respond to certain special interrogatories. While we agree plaintiffs have associational standing and sufficiently alleged that access to boat slips is an implicit term in the slip rental agreements, we disagree with plaintiffs’ other contentions.

A. Applicable Law

This court recently summarized the relevant standard of review in Kahan v. City of Richmond (2019) 35 Cal.App.5th 721: “ ‘We review the ruling sustaining the demurrer de novo, exercising independent judgment as to whether the complaint states a cause of action as a matter of law.’ [Citation.] ‘ “[W]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” ’ [Citation.] ‘When conducting this independent review, appellate courts “treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law.” ’ [Citation.]

“Although we review the complaint de novo, ‘ “[t]he plaintiff has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action and overcoming all of the legal grounds on which the trial court sustained the demurrer, and if the defendant negates any essential element, we will affirm the order sustaining the demurrer as to the cause of action. [Citation.] We will affirm if there is any ground on which the demurrer can properly be sustained, whether or not the trial court relied on proper grounds or the defendant asserted a proper ground in the trial court proceedings.” ’ [Citation.] It is the trial court’s ruling we review, not its reasoning or rationale. [Citation.]

“We also review questions of statutory interpretation de novo. [Citation.] ‘We begin with the fundamental rule that our primary task is to determine the lawmakers’ intent.’ [Citation.] In determining that intent, ‘ “we first look to the plain meaning of the statutory language, then to its legislative history and finally to the reasonableness of a proposed construction.” ’ ” (Kahan v. City of Richmond, supra, 35 Cal.App.5th at pp. 730–731.)

B. Breach of Contract and the Implied Covenant of Good Faith and Fair Dealing

1. Associational Standing

“Even in the absence of injury to itself, an association may have standing solely as the representative of its members.” (Warth v. Seldin (1975) 422 U.S. 490, 511.) “[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” (Hunt v. Washington Apple Advertising Comm’n (1977) 432 U.S. 333, 343 (Hunt).) The California Supreme Court adopted the Hunt test in Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1004 (Amalgamated Transit). Plaintiffs must meet this three-pronged test in order to establish they have standing to assert claims on behalf of their members.

The District argues plaintiffs lack standing because they are not parties to the contract and thus lack privity with the District. But the first prong of Amalgamated Transit only requires the association’s members have standing to sue. (See Automobile Workers v. Brock (1986) 477 U.S. 274, 286 [first prong met when at least some members of association would have standing to sue in their own right].) Undoubtedly, plaintiffs’ members would have standing to assert claims based on contracts they entered into with the District. (See Berclain America Latina v. Baan Co. (1999) 74 Cal.App.4th 401, 405.) The FAC alleges some members rent boat slips at the marina, attaches an exemplar slip rental agreement, and asserts those members have suffered harm and risk future harm as a result of the alleged contractual breaches by the District. Accordingly, the FAC sufficiently alleges plaintiffs’ members have standing to bring the claims at issue.

Contrary to the District’s argument that privity is required, multiple courts have applied the associational standing doctrine in contract cases. (See, e.g., United Farmers, supra, 32 Cal.App.5th at p. 489 [association had standing to assert contract claims related to termination of member agreements with the defendant]; Nat’l Franchisee Assn. v. Burger King Corp. (S.D.Fla. 2010) 715 F.Supp.2d 1232, 1239 [association had standing to bring claims related to franchise agreements on behalf of its members]; Retired Chicago Police Assn. v. City of Chicago (7th Cir. 1993) 7 F.3d 584, 599–603 [association may assert contract claim requiring some participation by some members]; Pennsylvania Psychiatric v. Green Spring Health (3d Cir. 2002) 280 F.3d 278, 282–287 [associational standing requirements satisfied if claims can be established with limited individual participation].)

The second prong—i.e., the interests plaintiffs seek to protect are germane to the organizations’ purpose—is likewise met. The germaneness test for associational standing is undemanding, and mere pertinence between the litigation subject and organizational purpose is adequate. (Presidio Golf Club v. National Park Serv. (9th Cir. 1998) 155 F.3d 1153, 1159.) Here, the FAC directly alleges plaintiffs “represent the interests of commercial fisherm[e]n in Humboldt County,” and “the interest the plaintiffs seek to protect are germane to the plaintiffs’ purposes.” For purposes of demurrer, we accept these statements as true, and the District does not contest their validity.

The third prong requires that “ ‘neither the claim asserted nor the relief requested . . . require[ ] the participation of individual members in the lawsuit.’ ” (Amalgamated Transit, supra, 46 Cal.4th at p. 1004.) As to this prong, the District contends individual participation is necessary to determine the terms of each member’s contract with the District. The District asserts the initial complaint, which alleged the existence of written, oral, and implied by law contracts, demonstrates the ambiguous nature of the contractual relationships and the need for individual participation. It asserts the FAC failed to cure this ambiguity because the attached exemplar contract is incomplete and relates to a particular vessel.

Plaintiffs attached an “exemplar” slip rental agreement to the FAC and alleged “[t]he slip rental contracts all appear to be the same written contracts.” The cause of action is based on alleged material breaches of the slip rental agreement and related implied terms. None of the implied terms are specific to any individual, but involve general matters such as “safe access to the Marina,” maintaining harbor space, and allowing “gear storage facilities at the Marina.” The District thus has failed to demonstrate why contract claims based on the exemplar contract, which sets forth the terms entered into by plaintiffs’ members, would require individual participation by plaintiffs’ members.

Likewise, we note the FAC only seeks equitable relief as to the contract causes of action and expressly “do[es] not seek special or general damages.” Where injunctive or declaratory relief is sought as opposed to damages, courts generally conclude participation of individual members is not required, and the third prong of Hunt is satisfied. (See, e.g., California Dental Assn. v. California Dental Hygienists’ Assn. (1990) 222 Cal.App.3d 49, 62 [association had standing to seek injunctive relief only]; Associated Gen. Contractors v. Metro. Water Dist. (9th Cir. 1998) 159 F.3d 1178, 1181 [association request for declaratory and injunctive relief satisfied third prong of Hunt].) Accordingly, plaintiffs have standing to pursue the contract claims on behalf of their members.

2. Whether the First and Second Causes of Action Are Fatally Uncertain

The trial court concluded “the factual allegations are missing critical information as to any contractual obligation to dredge or maintain the equipment storage facilities.” Plaintiffs acknowledge the express terms of the slip rental agreements do not require the District to dredge or maintain storage. However, plaintiffs argue (1) access to boat slips is implicit in the slip rental agreements, and (2) dredging and maintaining storage are mandated by law and thus must be read into the contract.

The elements of a breach of contract cause of action are (1) the existence of a contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) breach by the defendant, and (4) resulting damage. (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) The covenant of good faith and fair dealing finds its basis in an existing contractual obligation. (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031 (Racine).) It requires that each contracting party do everything the contract presupposes will be done to accomplish its purpose, but the covenant does not create obligations not contemplated by the contract. (Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089, 1093–1094.) “ ‘In essence, the covenant is implied as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party’s rights to the benefits of the contract.’ ” (Racine, at pp. 1031–1032.)

Here, plaintiffs contend the District had an obligation implicit in the slip rental agreements to ensure access to the rented boat slips—i.e., a rented slip is worthless if the commercial fishing boat cannot access it. California has long recognized that right of access “ ‘goes along with the lease as incidentals thereto, without being particularly mentioned.’ ” (Corwin v. Hamilton (1957) 154 Cal.App.2d 829, 832; Dubin v. Robert Newhall Chesebrough Trust (2002) 96 Cal.App.4th 465, 473 [“ ‘Unless specifically reserved to the landlord by the terms of the lease, everything that belongs to the demised premises or is used with, or is appurtenant to, the premises, and reasonably necessary for their beneficial use and enjoyment, passes as an incident to a lease of the premises.’ ”].)

We conclude access to the marina is appurtenant to use of a boat slip. And hindering access “ ‘frustrates the other party’s rights to the benefits of the contract,’ ” namely the commercial fishermen’s access to their rented boat slips. (See Racine, supra, 11 Cal.App.4th at p. 1032.) The FAC alleges certain of their members rented slips at the marina, those members were entitled to access to the boat slips, and the District failed to provide such access by not dredging.

In response, the District asserts the slip rental agreement attached to the FAC excuses any access or dredging issues because it states the “District has made and makes no warranties or representations, either express or implied, with respect to the present [or] future suitability or condition of District slips, facilities, walks, ramps, equipment, building[s], premises or other property under the control of the District.” However, plaintiffs have not alleged in connection with their contract claims that the boat slips are deficient. Rather, their complaint is access to those boat slips. To the extent the District contends this provision encompasses such access, we conclude the FAC has adequately pleaded an alternative interpretation requiring the District to ensure access to the marina. (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239 [general demurrer admits “not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible”].)

Although the demurrer to the first and second causes of action should have been denied on the basis of access, we address the parties’ dispute over commercial fishing gear storage facilities to resolve the proper interpretation of Civil Code section 1656.

Plaintiffs contend Civil Code section 1656 provides “matters that are required by law are read into the contract.” However, Civil Code section 1656 is not that broad. The California Supreme Court has emphasized the “freedom to contract as [the parties] deem fit” is a fundamental principle in contract law. (Aydin Corp. v. First State Ins. Co. (1998) 18 Cal.4th 1183, 1193.) Thus, it is “our obligation . . . to give effect to the language the parties chose, not the language they might have chosen.” (Ibid.; see Code Civ. Proc., § 1858 [“In the construction of a[n] . . . instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted”].) Civil Code section 1656 provides a narrow, nuanced exception to this general rule, allowing implied terms for “[a]ll things that in law or usage are considered as incidental to a contract, or as necessary to carry it into effect.” As explained by our colleagues in Division Four, “[a] contract term will be implied only when ‘it is so obvious that the parties had no reason to state [it].’ ” (Aozora Bank, Ltd. v. 1333 North California Boulevard (2004) 119 Cal.App.4th 1291, 1296.) The implied provisions must be “ ‘indispensable to effectuate the intention of the parties and . . . arise from the language of the contract and the circumstances under which it was made . . . .’ ” (Frankel v. Board of Dental Examiners (1996) 46 Cal.App.4th 534, 544–545.) “ ‘Courts will not add a term about which a contract is silent.’ ” (Dameron Hospital Assn. v. AAA Northern California, Nevada & Utah Ins. Exchange (2014) 229 Cal.App.4th 549, 569.)

Even accepting as true plaintiffs’ assertions that storage facilities are mandated by the District’s permit, we cannot imply storage facilities into the slip rental agreement. Here, the slip rental agreement is entirely silent as to storage facilities, and the agreement exclusively addresses rental of boat slips. Nor are storage facilities “indispensable” to effectuate a slip rental. Indeed, it appears the same slip rental agreement may be used for both commercial and recreational vessels. Accordingly, there is no basis on which to imply any storage facility requirement into the slip rental agreement.

However, “a demurrer will not lie to a part of a cause of action.” (Cornejo v. Lightbourne (2013) 220 Cal.App.4th 932, 944.) Here, plaintiffs assert their breach of contract claims based on both the District’s failure to dredge and lack of storage facilities. The demurrer thus must be overruled if plaintiffs state a cognizable claim for either breach. As discussed above, the FAC adequately stated a claim for the District’s failure to dredge resulting in commercial fishing vessels being unable to access their rented slips, and the demurrer should have been overruled as to the first and second causes of action.

C. Nuisance

Plaintiffs contend the trial court erred in finding the District subject to natural condition immunity because such immunity only applies to unimproved public property, and the marina does not qualify as unimproved property. We disagree.

1. Natural Condition Immunity

Government Code section 831.2, commonly referred to as the natural condition immunity, provides: “Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.” The natural condition immunity applies “ ‘where the public entity had knowledge of a dangerous condition which amounted to a hidden trap,’ ” and improvement of a portion of an area “ ‘does not remove the immunity from the unimproved areas.’ ” (Alana M. v. State of California (2016) 245 Cal.App.4th 1482, 1488.)

In order to avoid the natural condition immunity, courts “have required ‘at least “some form of [artificial] physical change in the condition of the property at the location of the injury.” ’ ” (Alana M. v. State of California, supra, 245 Cal.App.4th at p. 1489.) Additionally, “there must be a ‘causal nexus between the dangerous condition and either human conduct or an artificial improvement.’ [Citation.] The immunity applies unless an improvement or human conduct created, contributed to, or exacerbated the degree of, the danger associated with a natural condition.” (Ibid.) “Finally, because the phrase ‘of any unimproved public property’ in [Government Code] section 831.2 modifies the ‘natural condition’ that caused the injury, the relevant issue for determining whether the immunity applies is the character (improved or unimproved) of the property at the location of the natural condition, not at the location of the injury.” (Ibid.)

A line of cases involving sandbars provides a useful analogy to the present case. In Morin v. County of Los Angeles (1989) 215 Cal.App.3d 184 (Morin), the plaintiff dove into the surf at Venice Beach, approximately 300 feet from the Venice pier, and struck an underwater sandbar. (Id. at pp. 186–187.) The plaintiff argued “nearby improvements altered the natural flow of the waves and sand, causing the sand to build up at the site where he struck his head.” (Id. at p. 189.) The court rejected this argument, concluding: “Even if we assume for the purpose of discussion that these man-made improvements combined with natural forces to lower the water level at the accident site from knee-deep to ankle-deep, the sandbar nevertheless remained a natural condition of the beach. Under these facts, [Government Code] section 831.2’s immunity applies despite any human activity which indirectly added to the sand buildup on the beach and ocean floor at Venice Beach.” (Ibid.)

Similarly, in Tessier v. City of Newport Beach (1990) 219 Cal.App.3d 310 (Tessier), the plaintiff dove into a wave and struck his head on a concealed sandbar. (Id. at p. 312.) The plaintiff claimed man-made alterations in the development of Newport Harbor were a substantial factor in causing the bottom conditions that led to his injury. (Id. at pp. 312–313.) Specifically, he asserted these improvements caused sandbars “ ‘greater in abundance and of higher relief than normally would be expected.’ ” (Id. at p. 312.) The court followed the reasoning in Morin, explaining, “It is now generally settled that human-altered conditions, especially those that have existed for some years, which merely duplicate models common to nature are still ‘natural conditions’ as a matter of law for the purposes of Government Code section 831.2.” (Tessier, at p. 314.) The court noted, “There was no evidence to even suggest that anything other than wave action and tides causes sandbars to form.” (Ibid.)

Likewise, in Fuller v. State of California (1975) 51 Cal.App.3d 926 (Fuller), the plaintiff sustained injuries when he dove into shallow ocean water from a cliff in a state park. With respect to Government Code section 831.2, the plaintiff contended the construction of the nearby Santa Cruz yacht harbor and jetty together with rip rock work altered the natural condition of the ocean floor by causing a buildup of sand on the beach and around the cliff. (Fuller, at pp. 936–938.) The court rejected the assertion that the governmental entity “by its acts participated in the sand buildup.” (Id. at p. 938.) The court concluded the accident site constituted a natural condition of unimproved public property and attributed the sand buildup to a combination of human activity and natural forces. (Id. at pp. 938–939.)

Here, plaintiffs argue the marina is not a natural condition and thus outside the scope of Government Code section 831.2. But plaintiffs do not allege the marina constitutes a nuisance. Rather, they allege the sediment buildup on the floor of Humboldt Bay constitutes a nuisance because it impedes access to the marina. And Morin, Tessier, and Fuller indicate ocean floor conditions amount to natural conditions even though they may be formed due to a combination of wave action, tides, and human activity. (Tessier, supra, 219 Cal.App.3d at p. 314; Morin, supra, 215 Cal.App.3d at p. 194; Fuller, supra, 51 Cal.App.3d 926 at pp. 938–939.) These courts explained because sandbar formations occur in nature even in the absence of human activity, any contributing human activity does not alter the natural character of the condition. (Tessier, at p. 314; Morin, at pp. 190–191; Fuller, at p. 938; see also County of Sacramento v. Superior Court (1979) 89 Cal.App.3d 215, 218 [“snag” of uprooted trees which dislodged the plaintiff from his floating device and trapped him underwater was a natural condition of unimproved property even though the water level and flow were controlled by a dam 15 miles upstream].)

In response to these authorities, plaintiffs cite Gonzalez v. City of San Diego (1982) 130 Cal.App.3d 882 to argue Government Code section 831.2 does not apply when a dangerous condition is caused by both natural conditions and a governmental entity’s actions. However, a number of courts have rejected Gonzales and concluded it “represents an unwarranted curtailment of the rule of governmental tort immunity.” (Geffen v. City of Los Angeles (1987) 197 Cal.App.3d 188, 192; see also Morin, supra, 215 Cal.App.3d at pp. 190–193; Arroyo v. State of California (1995) 34 Cal.App.4th 755, 764.)

We have no reason to treat the buildup of sediment in Humboldt Bay differently from the ocean floor conditions in Morin, Tessier, and Fuller. Plaintiffs argue the District created a nuisance by failing to dredge “its facilities,” resulting in various harms such as boats “mak[ing] contact with the bottom of the bay” and pumping “fouled water and sediment” into live holding systems, as well as interfering with the free passage or use of Humboldt Bay. But plaintiffs do not allege the District has taken any actions to create the buildup of sediment in Humboldt Bay. Nor have plaintiffs even alleged construction of the marina resulted in the increased sediment buildup. Rather, they merely complain that the District has failed to remove such buildup. The buildup of sediment in Humboldt Bay constitutes a natural condition caused by ocean currents and tides. Accordingly, the trial court properly found the cause of action barred by the natural condition immunity.

2. Leave to Amend

“When ‘ “the trial court sustains a demurrer without leave to amend, we review the determination that no amendment could cure the defect in the complaint for an abuse of discretion. [Citation.] The trial court abuses its discretion if there is a reasonable possibility that the plaintiff could cure the defect by amendment.” ’ ” (Berger v. Varum (2019) 35 Cal.App.5th 1013, 1018.) However, it is the plaintiff’s burden to show a reasonable possibility of successful amendment. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) “ ‘If the plaintiff does not proffer a proposed amendment, and does not advance on appeal any proposed allegations that will cure the defect or otherwise state a claim, the burden of proof has not been satisfied.’ ” (Placer Foreclosure, Inc. v. Aflalo (2018) 23 Cal.App.5th 1109, 1117.)

Here, plaintiffs have not carried that burden. They fail to identify any proposed allegations that would remove the claim from the scope of Government Code section 831.2 and thus have not demonstrated a reasonable possibility of successful amendment.

D. Declaratory Relief and Petition for Writ of Mandate

The trial court sustained the demurrer as to the fourth cause of action for declaratory relief and the fifth cause of action for writ of mandate on the basis that the FAC failed to “demonstrate that the [District] has a ‘clear, present and ministerial duty to act in a particular way.’ ” We agree.

“ ‘Code of Civil Procedure section 1085, providing for writs of mandate, is available to compel public agencies to perform acts required by law. [Citation.] To obtain relief, a petitioner must demonstrate (1) no “plain, speedy, and adequate” alternative remedy exists [citation]; (2) “ ‘a clear, present . . . ministerial duty on the part of the respondent’ ”; and (3) a correlative “ ‘clear, present, and beneficial right in the petitioner to the performance of that duty.’ ” [Citations.] A ministerial duty is an obligation to perform a specific act in a manner prescribed by law whenever a given state of facts exists, without regard to any personal judgment as to the propriety of the act.’ ” (International Brotherhood of Teamsters, Local 848 v. City of Monterey Park (2019) 30 Cal.App.5th 1105, 1111 (International Brotherhood of Teamsters).) “Mandamus is also available to ‘correct those acts and decisions of administrative agencies which are in violation of the law . . . .’ ” (Morgan v. City of Los Angeles Bd. of Pension Comrs. (2000) 85 Cal.App.4th 836, 843.)

As an initial matter, the FAC fails to assert that no “ ‘ “plain, speedy, and adequate” ’ ” alternative remedy exists. (See International Brotherhood of Teamsters, supra, 30 Cal.App.5th at p. 1111.) The FAC only states “Plaintiff is unaware of any administrative procedures available to address the issues herein.” Notably, alternative remedies are not limited to administrative procedures. (8 Witkin, Cal. Procedure (2020 supp.) Extraordinary Writs, § 122 [when an action at law or equity is available, it is presumed to be adequate and normally precludes a resort to mandamus].) A court may properly dismiss a petition for writ of mandate “if the petition fails to allege a prima facie case for relief.” (Gomez v. Superior Court (2012) 54 Cal.4th 293, 301.) The trial court thus properly sustained the demurrer because plaintiffs failed to allege no adequate alternative remedy exists. However, even assuming no alternative remedy exists, we still find plaintiffs’ claim lacking.

The FAC seeks a writ of mandate related to “its mandatory dredging duties” and “its obligation to maintain commercial fishermen gear storage facilities.” However, the FAC fails to identify any “ ‘ “ ‘clear, present . . . ministerial duty’ ” ’ ” to dredge or maintain such storage. (See International Brotherhood of Teamsters, supra, 30 Cal.App.5th at p. 1111.) Regarding the District’s dredging duties, the FAC relies on “the District’s creation, mandate and contractual obligations”—i.e., unspecified provisions of the Eureka Municipal Code identifying the District’s general purpose as “ ‘encourag[ing], protect[ing], maintain[ing], and provid[ing] commercial fishing facilities and uses related to the commercial fishing industry.’ ” Although not raised in the FAC, plaintiffs also now assert Public Resources Code section 30703 imposes such duties.

Nothing in these allegations identifies a ministerial duty to dredge. The alleged provision in the Eureka Municipal Code only provides a generalized purpose and does not set forth a mandatory dredging schedule. Likewise, Public Resources Code section 30703 states in relevant part, “ports shall not eliminate or reduce existing commercial fishing harbor space, unless the demand for commercial fishing facilities no longer exists or adequate alternative space has been provided.” This provision does not set forth a mandatory dredging schedule. The FAC thus fails to identify any authority indicating how frequently, or in what manner, the District is required to dredge.

Nor have plaintiffs alleged the failure to dredge amounts to a violation of the District’s duty to maintain commercial fishing harbor space pursuant to Public Resources Code section 30703. While the FAC alleges the District’s failure to dredge “resulted in a reduction of harbor space to the commercial fishing fleet” and “many slips have become unusable,” the FAC does not allege the District failed to provide adequate alternative space. To the contrary, the FAC indicates adequate alternative space is available because the FAC states some commercial fishing vessels have “relocate[d] to other ports more well maintained and capable of meeting their needs.”

Plaintiffs have failed to cite any authority dictating when and how the District must dredge. Accordingly, such dredging appears to be at the District’s discretion. And, generally, “[a] writ cannot be used to control a matter of discretion.” (Excelsior College v. Board of Registered Nursing (2006) 136 Cal.App.4th 1218, 1238.) In response, plaintiffs contend the District’s failure to dredge amounts to an abuse of discretion. Plaintiffs claim the adverse impacts to fishermen demonstrate such abuse.

In challenging the District’s exercise of discretion, plaintiffs “must show the official acted arbitrarily, beyond the bounds of reason or in derogation of the applicable legal standards.” (Excelsior College v. Board of Registered Nursing, supra, 136 Cal.App.4th at p. 1239.) The allegations in the FAC do not satisfy this requirement. The FAC does not allege the failure to dredge was arbitrary or an abuse of discretion. Nor does the FAC allege the failure to dredge was “beyond the bounds of reason or in derogation of the applicable legal standards.” (See ibid.) Rather, the FAC only asserts the District violated a “mandatory duty” to dredge. Because plaintiffs elected not to amend this cause of action, “ ‘ “it must be presumed that the plaintiff has stated as strong a case as he can.” ’ ” (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 861.) Accordingly, plaintiffs have failed to allege any abuse of discretion.

Finally, plaintiffs argue the FAC alleged a violation of a “ ‘ “clear, present and ministerial duty” ’ ” because certain fishermen were evicted from “mandated storage facilities” in violation of the District’s permit. The FAC alleges “[g]ear storage was a permitted, principal activity under the District’s Coastal Commission Permit,” the District was “responsible to maintain permitted gear storage facilities,” it removed those facilities and evicted fishermen in violation of the permit, and the District was “notified of the violation by the California Coastal Commission.” However, the fact that storage facilities were “permitted” (and the District was responsible for maintaining any such facilities) does not mean the District was mandated to provide such storage facilities.

Plaintiffs must support their legal allegations with facts, not conclusory allegations that do not withstand demurrer. (See Freeman v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 184, fn. omitted [plaintiffs’ “complaint, read in the context of the facts of which we may take judicial notice, and shorn of its conclusory allegations, did not adequately allege” a viable claim].) Here, however, plaintiffs acknowledge their assertions regarding mandatory storage facilities are “of course a legal conclusion.” The FAC fails to quote the relevant provision of the permit it asserts gives rise to the alleged mandatory storage facilities and the fishermen’s right of access thereto. The FAC is devoid of any factual allegations demonstrating the District was required to permanently create storage facilities, locate such facilities at the marina, and grant fishermen access to such facilities. Accordingly, the trial court properly sustained the demurrer to the fourth and fifth causes of action.

E. Motion to Compel Special Interrogatory Responses

1. Relevant Factual Background

During the course of litigation, the District propounded four special interrogatories to plaintiffs. The first interrogatory asked, with regard to 33 specific individuals, whether plaintiffs contend those individuals had an existing slip rental agreement with the District. The second interrogatory asked plaintiffs to identify the format of any such agreements—i.e., whether they were in writing or oral. The third interrogatory requested the details of any alleged oral agreements. And the fourth interrogatory asked plaintiffs to identify the name of the fishing vessel and slip or berth number for any slip rental agreements with the District.

Plaintiffs objected to all four special interrogatories without providing any substantive response. Plaintiffs asserted all of the special interrogatories were compound, and the information sought in special interrogatories Nos. 1, 3, and 4 was “equally available” to the District.

Following an unsuccessful meet and confer effort, the District filed a motion to compel. The District noted plaintiffs are representing only a subset of their members, and the District is unaware which individuals are members of the plaintiff associations. As a result, the District argued it is entitled to inquire as to which of plaintiffs’ members have alleged contracts with the District, the details of any oral agreements, and which vessels and slips or berths are allegedly at issue.

In response, plaintiffs argued the District could ask for membership lists, but “to force the plaintiffs to set forth every term of agreement and other details as to many persons is useless and equally available.” Plaintiffs asserted the District was “wasting time” trying to ascertain the details of the contracts at issue. Plaintiffs’ supporting declaration stated they “d[o] not have copies of any contracts between any members and the District” and “do not even know if the names listed are members of the fishermen’s associations.” Finally, plaintiffs argued the four special interrogatories were compound and thus exceeded the 35-interrogatory limit.

The trial court granted the District’s motion to compel answers to the special interrogatories. The court ordered plaintiffs to serve verified answers without objection.

2. Analysis

“A trial court’s determination of a motion to compel discovery is reviewed for abuse of discretion.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) “Appellate courts must keep liberal policies of discovery statutes in mind when reviewing decisions denying or granting discovery. [Citation.] Absent a showing that substantial interests will be impaired by allowing discovery, liberal policies of discovery rules will generally counsel against overturning a trial court’s decision granting discovery [citation] and militate in favor of overturning a decision to deny discovery.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987.)

Plaintiffs first argue the information is equally available to the District, and thus the District should bear the burden of seeking such information. We disagree. The special interrogatories are targeted at identifying the contracts plaintiffs contend are underlying its breach of contract claims and, for any alleged oral agreements, the terms of those agreements. Neither the existence and terms of any alleged oral agreements nor plaintiffs’ contentions are “equally available” to the District.

Plaintiffs next argue each special interrogatory is “compound” and not “full and complete by itself,” relying on Catanese v. Superior Court (1996) 46 Cal.App.4th 1159 (Catanese). In Catanese, the plaintiff propounded various interrogatories to the defendant following an eight-day deposition. (Id. at p. 1161.) Those interrogatories asked the defendant whether he contended any answer given by the plaintiff during her multi-day deposition was untrue and, if he asserted any answer was untruthful, to identify which answer and all documents and witnesses supporting his claim of untruthfulness. (Id. at pp. 1161–1162.) The court concluded each interrogatory was not “ ‘full and complete in and of itself’ ” because they “necessarily incorporate[d], as part of each interrogatory, each separate question and answer in eight volumes of deposition.” (Id. at p. 1164.) The court further noted the interrogatories violated the “ ‘rule of 35’ ” because if the plaintiff had inquired about each question and answer in “in self-contained form,” the plaintiff would have well exceeded 35 questions. (Id. at pp. 1164–1166.)

We find Catanese distinguishable. Here, the special interrogatories at issue only reference other interrogatories within the same set. No other documents are incorporated, and certainly not one that would incorporate thousands of questions asked during an eight-day deposition. (See Catanese, supra, 46 Cal.App.4th at p. 1165 [explaining the “interrogatories as worded effectively posed upwards of 10,000 separate questions”].) Rather, we find the current case more analogous to Clement v. Alegre (2009) 177 Cal.App.4th 1277. In that case, the defendant served a set of interrogatories regarding damages, causation, and a loan agreement. (Id. at p. 1282.) Some of the interrogatories referenced prior interrogatories in the same set. (Ibid.) For example, the first interrogatory asked the plaintiff to describe all economic damages sustained, and the second asked the plaintiff to state the amount of damages identified in the first interrogatory. (Ibid.) The plaintiff objected, arguing each interrogatory was not “ ‘full and complete in and of itself’ ” because of the references to prior interrogatories. (Id. at p. 1283.)

The Clement court rejected the plaintiffs’ position. (Clement v. Alegre, supra, 177 Cal.App.4th at p. 1290.) In doing so, it examined the purpose behind the rules governing special interrogatories: “The focus of the reporter’s note—and the statute—is upon the prohibition of prefaces, instructions, definitions, and subparts (except as approved by the Judicial Council) to ‘prevent wrangling’ about whether the propounding party is attempting to evade the 35 question limit. [Citation.] The reporter’s note on this subdivision does not even mention the language seized upon by plaintiffs—that ‘[e]ach interrogatory shall be full and complete in and of itself.’ ” (Id. at pp. 1288–1289.) The court also noted the importance of a practical approach: “In referring to the prohibition of ‘compound, conjunctive, or disjunctive’ questions ([Code Civ. Proc.,] § 2030.060, subd. (f)), Weil & Brown point out that the ‘purpose again is to prevent questions worded so as to require more information than could be obtained by 35 separate questions. [¶] How strictly this rule will be applied remains to be seen. Arguably, any question containing an “and” or “or” is compound and conjunctive!’ (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial [(The Rutter Group 2009)] ¶ 8:978.1, p. 8F-21.) They comment that ‘[t]he rule should probably apply only where more than a single subject is covered by the question. Questions regarding the same subject should be allowed although they include an “and” or “or.” For example: “State your first name, middle name and last name, and your current address and telephone number.” Since only one subject is involved—identification of responding party—the question should not be objectionable because of the “ands” used.’ (Id., ¶ 8:979, p. 8F-21.)” (Clement v. Alegre, at p. 1291.)

Here, the questions focus on specific subjects—the agreements, their terms, and the vessels and slips or berths at issue. The first interrogatory, identifying 33 individuals, could easily have been reframed as an interrogatory asking plaintiffs to identify all members whom they contend had existing contracts with the District for rental of a slip. When so reframed, it is clear the interrogatories do not raise the types of concerns that subdivisions (d) and (f) of Code of Civil Procedure section 2030.060 was intended to address. Accordingly, the trial court did not err in granting the District’s motion to compel plaintiffs to respond to the special interrogatories.

III. DISPOSITION

We reverse the judgment dismissing plaintiffs’ first amended complaint. We affirm that portion of the trial court’s order sustaining the District’s demurrer as to the third, fourth, and fifth causes of action, but reverse the trial court’s order sustaining the demurrer as to the first and second causes of action. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)

____________________________

Margulies, J.

We concur:

_____________________________

Humes, P. J.

_____________________________

Banke, J.

A158634

Humboldt Fishermen’s Marketing Association v. Humboldt Bay Harbor, Recreation and Conservation District