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

Case Number

23CV03359

Case Type

Hearing Date / Time

Wed, 01/03/2024 - 10:00

Nature of Proceedings

Demurrer To First Amended Petition for Writ of Mandate

Tentative Ruling

For Petitioner John De Herrera: Self Represented

For Respondent 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 demurrer of respondent The Attorney General of the State of California is sustained without leave to amend.

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 respondent 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 alleged 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 Attorney General filed a demurrer to the petition and on October 4, 2023, finding the petition unclear and uncertain, the demurrer was sustained with leave to amend.

Petitioner filed a first amended petition for writ of mandate (FAP) on October 12, 2023. As was true with the original petition, the FAP is in narrative form and is somewhat difficult to follow.

Petitioner alleges: “Due to absence of copies of instruments and reports currently available to public, Petitioner cannot be certain what legally presides over 1407 East Cabrillo Boulevard—is it a charitable trust or a private foundation? Presuming this case is concerned with administration of a charitable trust, Petitioner, for this first amended writ and for convenience of the Court assumes he may reference initial petition to show unto the Court the relevance for new orders and a relief different from relief initially sought.” (FAP, p. 2, ll. 5-12.) Petitioner alleges that he “is distinguishable from the mass of the community in regard to a property the primary use of which is to foster/promote arts and therefore has a special interest in this proceeding, satisfying a requirement for a writ order to be issued.” (FAP, p. 2, ll. 24-28.)

“Petitioner asserts that the physical property itself in-part makes this proceeding in rem because not a single improvement and/or permit has ever been necessary to open Bellosguardo to the public as historic residence” (FAP, p. 3, ll. 2-6.) “This fact creates a public interest in this case. as the public is currently being denied the right to enjoy Bellosguardo as historic residence, as intended. The foundation’s public comment acknowledged that lack of communication between 2014 and 2018 resulted in ‘negative speculation and confusion’ and declared there would be future public discussion, yet five years on the foundation has persisted in lack of communication without public discussion.” (FAP, p, 3. ll. 5-11.)

“Petitioner has a clear, present, and beneficial right to performance of Respondent in supervising the foundation so that it fulfills its obligations to realize stated intentions and wishes of decedent. If Respondent exercises discretion adequately Petitioner will no longer be denied the right and/or opportunity to exhibit/educate/participate as a professional artist/educator, nor right to enjoy property as member of public. If the Respondent begins to exercise discretion on orders from the Court, in a natural progression of events the right of the public and any professional artist/educator of the future will be obtained. In time allowed, signatures were gathered, to show unto the Court that Petitioner is not alone is his position on the current state of affairs, had he had more time he could produce dozens of pages of signatures from locals who would like to enjoy Bellosguardo.” (FAP, p. 4, ll. 10-20.)

Petitioner requests the following orders: (1) “The Attorney General shall state to the Court whether Bellosguardo Inc. is a charitable trust or a private foundation and identify the beneficiary”; (2) “The Attorney General shall ministerially make all registers. copies of instruments. and reports of Bellosguardo Inc. open to public inspection”; (3) “The Attorney General shall exercise discretion in supervision of Bellosguardo, Inc.”; and (4) “Bellosguardo Inc. shall unlock west gate to property from sunrise to sundown the last weekend of each month for public to walk the five-acre lawn in accord with decedent’s wishes and foundation’s articles of incorporation.”

The Attorney General now demurs to the FAP on the grounds that the FAP fails to state facts sufficient to constitute a cause of action against the Attorney General. The Attorney General argues that the FAP does not fix the legal deficiencies of the original petition, petitioner lacks standing, petitioner fails to allege any valid causes of action, and fails to allege a ministerial duty on the part of the Attorney General.

Petitioner filed an opposition that he improperly labeled a “reply.” The document will be referred to as an opposition in this ruling.

Analysis

As an initial matter:

“ ‘ “It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.” ’ ” [Citations.] Thus, an amended complaint supersedes all prior complaints. [Citations.] The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment.” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130-1131.)

By way of his FAP, rather than restate allegations that he deems proper, petitioner simply references the initial petition. This is improper. Due to the first demurrer being sustained, the original petition has no effect as a pleading. The FAP must be complete in and of itself.

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.)

As explained in the ruling on the demurrer to the original petition:

“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 FAP fails to allege any additional facts supporting any viable legal theory on which petitioner basis his claims for relief. As was true of the original petition, the specific relief sought in the petition by way of Court orders cannot be ordered by the Court. 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.

As the petition is uncertain for all reasons discussed above, the Court will sustain the demurrer.

Alternatively, petitioner lacks standing. Petitioner fails to allege any facts tending to show a special interest to be served by his FAP. 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). Petitioner’s assertion that he is distinguishable from the mass of community is nothing more than an unsupported conclusion.

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 every day. . . . 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, petitioner, 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 opposition consists of three short paragraphs and does not provide any legal authority refuting the demurrer, nor does it contain any suggestion on how the pleading might be amended to state any valid causes of action.

Given that petitioner has made no attempt to explain how he might amend his petition to state a claim against respondent, and it does not appear that the petition is capable of amendment to state a viable claim, the demurrer will be sustained without leave to amend.