John De Herrera v. The Santa Barbara County Board of Supervisors, et al.
Case No: 18CV04913
Hearing Date: Tue Apr 02, 2019 9:30

Nature of Proceedings: Motion Judgment on Pleadings

Motion for Judgment on the Pleadings

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 motion for judgment on the pleadings of respondent City of Santa Barbara is granted without leave to amend.

BACKGROUND:

This matter concerns real property located at 1407 East Cabrillo Boulevard in Santa Barbara known as Bellosguardo. The 23-acre property belonged to the late mining heiress Huguette Clark. Ms. Clark died in 2011 and left the property by will to The Bellosguardo Foundation (“Foundation”), a 501(c)(3) non-profit corporation. It was Ms. Clark’s wish that the property would be preserved and transformed into a public museum for the arts. Petitioner John De Herrera (“Herrera”), a local resident, contends that Foundation has mismanaged Bellosguardo and not taken the necessary steps to open the property to the public. Herrera’s first amended petition for writ of mandate (“petition”) asks the Court to order respondents 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 Foundation has failed to open Bellosguardo to the public as legally mandated.

City now moves for judgment on the pleadings on the ground that the petition fails to state a cause of action against City. Herrera opposes the motion.

ANALYSIS:

Request for Judicial Notice

City requests that the Court take judicial notice of (1) Complaint Form, Form CT-9, provided by the California Attorney General for the public to file complaints regarding the misuse of charitable assets by a corporation, (2) Tax-Exempt Organization Complaint (Referral) Form, Form 13909, provided by the Internal Revenue Service for the public to file complaints regarding the misuse of charitable assets by an organization, and (3) New York State Department of Law Charities Bureau Complaint/Inquiry Form, provided by the Attorney General of New York for the public to file complaints regarding the misuse of charitable assets by a charitable corporation. Judicial notice may be taken of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Evid. Code §452, subd. (h). Accordingly, the Court will take judicial notice of the above three items.

Motion for Judgment on the Pleadings

A motion for judgment on the pleadings may be made by a defendant at any time after the time to demur has expired and an answer has been filed if it is contended that the complaint “does not state facts sufficient to constitute a cause of action against that defendant.” Code Civ. Proc. §438, subd. (c)(1)(B)(ii). A motion for judgment on the pleadings is akin to a general demurrer and can be directed at either the entire complaint or any individual cause of action. Code Civ. Proc. §438, subd. (c)(2)(A). Like a general demurrer, the grounds for the motion must appear on the face of the complaint or in matters subject to judicial notice. Code Civ. Proc. §438, subd. (d). Because a motion for judgment on the pleadings serves the same purpose as a general demurrer, in considering the motion, the court must accept as true all material facts properly pleaded in the complaint, giving them a liberal construction. Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516.

In his petition, Herrera requests an order commanding City “to schedule, duly notify, and hold public hearings focused on Bellosguardo.” (Petition, p. 10:22-23.) Herrera alleges that Foundation is a 501(c)(3) nonprofit corporation established to promote the arts and that it is legally mandated to open Bellosguardo as a public space for the arts and art education. (Petition, pp. 3:1-2, 7:9-10.) Herrera further alleges that Foundation, as a result of incompetence or malfeasance, has mismanaged Bellosguardo and not taken the steps necessary to open the property to the public. (Petition, p. 8:2-12.) Petitioner further alleges that he has made numerous formal and informal requests to City to hold public hearings on Bellosguardo, all before filing his petition, but no action has been taken. (Petition, pp. 3:27-4:21, Exs. G, H, I.) Finally, Herrera alleges that City has the authority pursuant to Article IV of its Charter to require Foundation to open Bellosguardo to the public. (Petition, p. 4:11-16.)

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 enjoins, 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.

In County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, the court explained the function of a writ of mandate, stating:

A trial court must determine whether the agency had a ministerial duty capable of direct enforcement or a quasi-legislative duty entitled to a considerable degree of deference. [Citations.] A ministerial duty is one which is required by statute. ‘A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists. Discretion, on the other hand, is the power conferred on public functionaries to act officially according to the dictates of their own judgment.’ [Citation.]

“Normally, mandate will not lie to control a public agency’s discretion, that is to say, force the exercise of discretion in a particular manner. However, it will lie to correct abuses of discretion. [Citation.] In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency’s action, its determination must be upheld. [Citation.] A court must ask whether the public agency’s action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.” Id., at 653-654.

In his petition, Herrera has failed to identify a law imposing a mandatory duty on City to hold public hearings on Bellosguardo or to take any other action concerning Foundation’s management of the property. Herrera references the Santa Barbara City Charter and the sections that identify City’s powers, but nowhere in the Charter does it state that City must hold a public hearing in certain situations or that City may compel a private foundation to open its property to the public. See, Gong v. City of Fremont (1967) 250 Cal.App.2d 568, 572 (holding that petition failed to state a cause of action for mandamus because there was no allegation that respondent city had a ministerial duty to issue a land use permit free of the objected-to conditions). Because Herrera has failed to cite a law requiring City to hold public hearings on Bellosguardo, City’s motion for judgment on the pleadings will be granted.

City next objects to the petition on the ground that Herrera has failed to demonstrate that he has no adequate remedy at law. The Court agrees that there has been no such showing. The petition alleges that Foundation is a nonprofit corporation licensed in the state of New York. (Petition, p. 2:15-17, Ex. A, Section Four.) Under California law, foreign nonprofit corporations conducting business in California are subject to state regulation. Corp. Code §6910. Further, under Government Code Section 12598, subdivision (a), the California Attorney General has the power to investigate charitable trusts to ensure that the trust is complying with its articles of incorporation and that its assets are being protected. “Because the beneficiaries of charitable trusts, unlike beneficiaries of private trusts, are ordinarily indefinite, the Attorney General has primary responsibility for the supervision of charitable trusts, and generally he is the proper party to enforce them.” Hardman v. Feinstein (1987) 195 Cal.App.3d 157, 161. Thus, if Herrera is concerned that Bellosguardo is being mismanaged because it has not been opened to the public, he can pursue a claim through the Attorney General’s Office. He has not alleged that he filed such a claim.

Based on the foregoing, the Court will grant City’s motion for judgment on the pleadings. As petitioner has failed to explain how he might cure the defects in his petition, the motion is granted without leave to amend.