John De Herrera vs. The Attorney General Of The State Of California

Case Number

23CV03359

Case Type

Hearing Date / Time

Wed, 10/04/2023 - 10:00

Nature of Proceedings

Demurrer To Extraordinary Writ Of Execution And Ejection And Sequestration

Tentative Ruling

For Plaintiff John De Herrera: Self Represented

For Defendant the Attorney General of the State of California: Rob Bonta, Joseph N. Zimring, Nicole M. Kennedy, Office of the Attorney General

RULING

For all reasons discussed herein, the Court sustains the demurrer of Resopondent the Attorney General of the State of California with leave to amend. Petitioner shall file a first amended pleading on or before October 13, 2023.

Background

On August 3, 2023, John De Herrera (Petitioner) filed a verified document titled “extraordinary writ of execution and ejection and sequestration” (the petition) against Resopondent the Attorney General of the State of California (the Attorney General). Petitioner is a professional artist and educator who lives and works in the City of Santa Barbara. Petitioner alleges that in 2014, a 23-acre property located within the City of Santa Barbara and known as Bellosguardo was bequeathed by Huguette Clark to the Bellosguardo Foundation (the Foundation) which is a 501(c)(3) non-profit corporation incorporated in 2014. Huguette Clark died over a decade ago at the age of 104.

The text of the petition is set forth in a narrative fashion and does not connect any particular allegations to the purported cause of action. Petitioner describes his communications with the Mayor and City Council of Santa Barbara and the County Board of Supervisors over a period of 4 years regarding Bellosguardo and the Foundation including when the Foundation would publicly present plans for Bellosguardo, the Foundation’s purported mismanagement of Bellosguardo by not taking the necessary steps to open the property to the public, Petitioner’s requests for a public hearing and formal complaints, Petitioner’s research regarding the Foundation, Petitioner’s filing of a previous writ, and media reports regarding Bellosguardo. (Petition, p. 4, l. 4-p. 8, l. 12.)

In the petition, Petitioner asserts that the Attorney General has the authority and duty to enforce provisions of a charitable trust and the responsibility to supervise charitable trusts operating in California and that based on these duties and responsibilities, the Attorney General was under a duty to scrutinize the election of Jeremy Lindaman as the Foundation’s President. (Petition at p. 2, ll. 8-13; p. 14, ll. 22-23; p. 15, ll. 16-17; p. 16, ll. 4-5 & 15-18.) Petitioner further alleges that the Attorney General’s office has “failed at every turn since 2014”, has been “absentee”, and has refused to enforce a charitable trust with regard to the Foundation. (Petition, p. 16, l. 27 – p. 17, l. 8; p. 23, ll. 24-25.) Petitioner asserts that ejection of the Foundation’s board is the only remedy that will serve justice and prevent ongoing harm. (Petition, p. 17, ll. 6-8, p. 23, ll. 21-22.)

Specifically, Petitioner requests a Court order for execution, ejection, and sequestration directing the Santa Barbara County Sheriff to dispatch a team of deputies and investigators to Bellosguardo to instruct any individuals located on the property that they have 90 minutes to collect personal items before vacating the property and to ascertain if there is any evidence of illegal or criminal activity at Bellosguardo and keep Bellosguardo secured until further notice, permitting Petitioner to take temporary custody and guardianship of Bellosguardo, requiring the Attorney General to produce documents and findings regarding the Foundation and present those findings to the Court and the Santa Barbara City Council, and directing the Santa Barbara County Registrar conduct a special election for new board members to the Foundation. (See Petition, pp. 25, l. 23- p. 26, l. 18.)

The Attorney General has filed a demurrer brought on the grounds of uncertainty, that Petitioner lacks standing to bring the petition, that the Court lacks jurisdiction of the subject of the cause of action alleged in the petition, and that Petitioner has not alleged any ministerial duty owed by the Attorney General. Petitioner opposes the demurrer.

Analysis

In the caption of the petition, Petitioner refers to Code of Civil Procedure section 1085. Petitioner purports to set forth the requirements for a writ of mandate under Code of Civil Procedure section 1085 throughout the petition. (See, e.g., Petition, p. 34, ll. 6-12; p. 38, ll. 1-11.) For these reasons, it is the Court’s understanding that Petitioner intends to proceed by writ of mandate pursuant to Code of Civil Procedure section 1085.

The party on whom a petition for writ of mandate has been served may respond by demurrer. (Code Civ. Proc., § 1089, subd. (a); Chapman v. Superior Court (2005) 130 Cal.App.4th 261, 271 [“[a] proceeding in mandamus is generally subject to the general rules of pleading applicable to civil actions” and the petition must “allege specific facts showing entitlement to relief”].) “The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]’ [Citation.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (Quelimane); accord, Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane, supra, 19 Cal.4th at p. 38.)

A party may object by special demurrer on the grounds that the pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).) “ ‘[U]ncertain’ includes ambiguous and unintelligible.” (Ibid.) Consequently, “[a]s against special demurrers, the facts must be alleged with sufficient clarity to inform Defendants of the issues to be met.” (Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 799.) Plaintiff must “set forth in his complaint the essential facts of his case with reasonable precision and with particularity sufficiently specific to acquaint the Defendant of the nature, source, and extent of his cause of action.” (Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209, internal quotation marks and citation omitted.)

“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).) “Mandamus will lie to compel a public official to perform an official act required by law. [Citation.] Mandamus will not lie to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular manner. Mandamus may issue, however, to compel an official both to exercise his discretion (if he is required by law to do so) and to exercise it under a proper interpretation of the applicable law.” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442.) “The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law” upon verified petition of the party “beneficially interested.” (Code Civ. Proc., § 1086.) Accordingly, “ ‘[w]hat is required to obtain writ relief is a showing by a Petitioner of “(1) [a] clear, present and usually ministerial duty on the part of the Respondent ...; and (2) a clear, present and beneficial right in the Petitioner to the performance of that duty.” ’ [Citation.]” (CV Amalgamated LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 278 (CV Amalgamated).)

“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.” (Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501 (Rodriguez); accord, Physicians Committee for Responsible Medicine v. Los Angeles Unified School Dist. (2019) 43 Cal.App.5th 175, 184 (Physicians) [examining on demurrer whether Respondent had a ministerial duty].) Ministerial acts “are essentially automatic based on whether certain fixed standards and objective measurements have been met”, such as when a statute requires “a prescribed act upon a prescribed contingency” or “clearly defines the specific duties or course of conduct that a governing body must take” or when a mandatory duty is imposed on a public agency or officer. (Calvert v. County of Yuba (2006) 145 Cal.App.4th 613, 623; Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Dept. of Resource Management (2008) 167 Cal.App.4th 1350, 1359; CV Amalgamated, supra, 82 Cal.App.5th at p. 279.)

Unlike a ministerial act or duty compelled by law, “[d]iscretion … is the power conferred on public functionaries to act officially according to the dictates of their own judgment.” (Rodriguez, supra, 1 Cal.App.4th at pp. 501-502.) “ ‘[A]bsent a clear duty imposed by law ... mandamus is not a proper vehicle for resolution for the asserted grievance.’ [Citation.] Moreover, ‘[m]andamus does not lie to compel a public agency to exercise discretionary powers in a particular manner, only to compel it to exercise its discretion in some manner. [Citation.]’ [Citation.]” (Physicians, supra, 43 Cal.App.5th at p. 185.) “Although a Court may order a government entity to exercise its discretion in the first instance when it has refused to act at all, the Court will not ‘compel the exercise of that discretion in a particular manner or to reach a particular result.’ [Citation.]” (Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1555.) Therefore, a writ petition under Code of Civil Procedure section 1085 “must plead facts showing that a public body or official has a clear legal and usually ministerial duty and that the Petitioner has a beneficial interest in or right to the performance of that duty.” (Building Industry Assn. v. Marin Mun. Water Dist. (1991) 235 Cal.App.3d 1641, 1645.)

The petition is convoluted and uncertain regarding the legal theory on which Petitioner basis his claims for relief. For example, the specific relief sought in the petition by way of Court orders as more fully discussed above cannot be ordered by the Court. Furthermore, it is unclear what legal and ministerial duties of the Attorney General are at issue and to which Petitioner claims he has a clear, present, and beneficial right to performance. In addition, to the extent that the Attorney General would have discretion to perform any particular act, for reasons more fully discussed above, the Court will not order the Attorney General to exercise its discretion in any particular manner for reasons discussed above. To the extent Petitioner intends to seek a different type of relief other than the orders sought in the petition, the petition is unclear in this regard. 

As the petition is unclear and therefore uncertain for all reasons discussed above, the Court will sustain the demurrer with leave to amend. As the Court will sustain the demurrer based on uncertainty, the Court will not, at this stage of the proceedings, address the Attorney General’s contentions regarding Petitioner’s standing and the Court’s jurisdiction to order the relief sought by Petitioner.

The Court notes that on September 19, 2023, Petitioner filed a declaration purporting to add exhibits to the original petition. On demurrer, the Court considers only the pleading at issue and, if appropriate, matters that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Therefore, for present purposes, the Court does not consider the exhibits attached to the declaration filed by Petitioner on September 19, 2023. Moreover, to whatever extent the declaration or the attached exhibits have legal effect, it is mooted by the Court’s granting leave to amend. Petitioner may attach any documents that are appropriate to the first amended writ.