Opinion
C080762
02-23-2021
ROGER J. GIFFORD, Plaintiff and Appellant, v. CLINT DINGMAN et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCSCCVPT150044)
This is litigation involves another case in which plaintiff has been a party against the Hornbrook Community Services District (the District). The District is a local community services district located in Siskiyou County which provides potable water to customers throughout the Hornbrook community. Plaintiff was a resident in the District and also served as a Director on the District's Board of Directors (the Board). Defendant Clint Dingman operated District facilities and defendant Ernest Goff, according to plaintiff, served in the position of Chief Operator for the District as an independent contractor. Plaintiff commenced this action seeking declaratory relief, injunctive relief, and a writ of mandate, alleging that defendants were performing their duties in a manner that constituted violations of federal and state law and District bylaws, and constituted a nuisance per se. Defendants filed a demurrer asserting that the matter must be dismissed because, among other things, as a member of the Board seeking to enforce his will, plaintiff was essentially suing himself and seeking to bypass the authority of the Board as the governing body of the District. The trial court sustained the demurrer without leave to amend, concluding that plaintiff lacked standing.
Plaintiff has been a party in the following cases: Gifford v. Hornbrook Community Services District, C092634; Gifford v. Hornbrook Community Services District, C092632; Gifford v. Hornbrook Community Services District, C088768; Gifford v. Goff, C088016; Gifford v. Hornbrook Community Services District, C086031; Gifford v. Hornbrook Community Services District, C085836; Gifford v. Hornbrook Community Services District, C085392; Olson v. Community Services District, C084843, Gifford v. Hornbrook Community Services District, C084757; Olson v. Community Services District, C084494; Gifford v. Hornbrook Community Services District, C082355; Gifford v. Hornbrook Community Services District, C081118.)
On appeal, plaintiff asserts that: (1) the trial court erred in denying his motion to compel discovery; (2) the trial court erred in concluding that he lacked standing; (3) a plaintiff may bring a petition for a writ of mandate seeking to compel acts other than ministerial acts; and (4) the District is not a party to this action and it need not be. We conclude that the trial court correctly determined that plaintiff lacked standing. Therefore, we will affirm the judgment on that ground. In light of our determination, plaintiff's remaining contentions are moot.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed a writ petition naming Dingman as defendant, Dingman demurred, and the trial court sustained the demurrer with leave to amend. Thereafter, plaintiff filed motions, inter alia, to compel discovery. Plaintiff asserted that Dingman's responses to his interrogatories were incomplete, nonresponsive, and raised invalid objections. Among other things, Dingman's responses to discovery requests included the assertion that there was no operative complaint on file with the court. The trial court denied plaintiff's motion to compel discovery.
First Amended Petition
Plaintiff subsequently filed the first amended petition, which is the operative petition, naming both Dingman and Goff as defendants. Plaintiff stated that he was a "taxpayer, citizen, elector, and resident of the" District. He also stated that he was a member of the Board. He further asserted that as a member of the Board, he had a duty to "enforce" provisions of the Community Services District Law, other statutes and regulations and the District bylaws. Plaintiff stated that the District, located in Siskiyou County, operated pursuant to Government Code section 61000 et seq., and that it provided potable water to the public throughout Hornbrook. Dingman operated water production, treatment, and distribution facilities for the District, and Goff was an independent contractor for the District and served in the position of Chief Operator.
Specifically, plaintiff asserted: "Plaintiff . . . is, a taxpayer, citizen, . . . and resident of the Hornbrook Community Services District. ("HCSD") Plaintiff . . . is also a member of the Board of Directors of the HCSD . . . .As a Director of the HCSD, Plaintiff . . . additionally has an individual duty to abide by, and enforce, all the provisions of the Community Services Law applicable to the HSCD, as well as the provisions of the HCSD Bylaws, contracts, and other legally-imposed mandates. This duty on the part of Plaintiff goes to the benefit of all property owners, taxpayers, water users, and citizens of the District (inclusive of Plaintiff himself), and to the District itself, and includes the Plaintiff's duty to make sure all operations of the District comply with the applicable regulations and laws . . . as well as the maintenance and operation of the District's facilities, along with the provisions for proper record-keeping. Plaintiff is thus beneficially interested, in both his individual and official capacities, in the safe, proper, and lawful operation of the HCSD in all particulars."
Plaintiff stated that, in his office as a Director, and as authorized under the District bylaws, he had attempted to supervise Dingman's activities on multiple occasions, inspect District facilities, review acquisition, storage, and use of chemicals purchased by the District, and examine District logs and employee documents. However, on several occasions, plaintiff was unable to access District facilities and property because Dingman had changed the locks without lawful authority. Plaintiff asserted that Dingman refused to provide Plaintiff and the other board members keys to the new locks. Plaintiff asserted that Dingman's actions, and his refusal to comply with plaintiff's request for access, were against the law and a violation of the District bylaws. Plaintiff further asserted that Dingman had failed to complete the necessary training and education as agreed upon at the time of his hiring, to pass state tests, and to obtain certification and licenses. As a result, according to plaintiff, Dingman's operation of District facilities violated federal and state law and constituted a nuisance per se. Plaintiff further asserted that Dingman was performing his duties improperly. Plaintiff asserted that he had informed Goff of the foregoing and Goff had failed to take corrective action and failed to provide direct control and oversight as required by federal and state law.
Plaintiff asserted that "[t]he acts and omissions of Defendants Dingman and Goff were unlawful and make it impossible to determine whether District facilities are being operated properly. [¶] The acts and omissions of Defendants . . . constitute a public and private nuisance. [¶] . . . [A] judicial determination is necessary as to whether the acts and omissions of Defendant[s] . . . were valid." (Capitalization omitted.)
Plaintiff sought a judgment: (1) declaring that Dingman's operation of the District facilities constituted a nuisance per se and ordering the cessation of Dingman's operation of District facilities and enjoining him from performing such work until he obtained valid certification; (2) enjoining Dingman and Goff from refusing to provide access to District records, property, and facilities by members of the Board; (3) enjoining Dingman from failing to provide plaintiff and other Board members with keys to District property; (4) enjoining Dingman from operating District water production, treatment, and distribution systems until he obtained appropriate certifications and licenses; (5) enjoining Dingman from operating District facilities in a manner contrary to federal, state, or local law; (6) declaring the rights and duties of the parties; and (7) awarding attorney fees.
Demurrer
Goff filed a demurrer to the first amended petition, in which Dingman apparently joined, asserting that the petition failed to state a cause of action because there was no statute that compelled defendants to perform the acts plaintiff sought to have them perform, and there was no statute prohibiting them from doing that which plaintiff sought to prevent them from doing. Defendants asserted that the alleged wrongful acts committed by them could not be deemed ministerial, and therefore a writ of mandate did not lie. Defendants also asserted that, as a Board member, plaintiff was a legislator with no individual authority outside of a duly convened meeting of the Board in which he would exercise one vote out of five. Defendants asserted that plaintiff had no authority to inspect District facilities. According to defendants, plaintiff's "role is to vote on District policy, not act as a self-appointed chief executive officer of the District with supervisory authority over its employees and agents."
Defendants represent in their respondents' brief that Dingman "was permitted to join in the Demurrer." Plaintiff does not dispute this.
Relying on Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793 (Carsten), defendants further asserted that, as a member of the Board, plaintiff "is essentially suing himself [citation], something he is not permitted to do." As will be discussed in greater detail post, in Carsten, the petitioner sought to compel the committee, of which she was a member, to comply with a specific statutory requirement, and our high court affirmed the sustaining of the demurrer and the dismissal of the petition on the ground that she lacked standing. (Id. at pp. 795-796.) Defendants asserted that, here, while plaintiff, a Director of the District, did not name the District as a defendant, the result should be the same as in Carsten. Defendants asserted that plaintiff was "attempting to bypass the governing authority of the District's governing board, which presumably has the power to order its employee, Dingman, and its Operator, Goff, to do, or not do, any of the things which [plaintiff] seeks in this action, but may have reasons to decline to do so. It is not for the court to second-guess the District's governing body or to assume the power to manage the District's affairs. To grant [plaintiff's] petition would necessarily place the court in the position of doing so." (Capitalization omitted.)
Plaintiff's Motion to Strike
Plaintiff moved to strike the demurrer. Among other things, plaintiff asserted that, while it was true that formal action may not be taken by a Director alone on behalf of the District, collective Board action results from "the individual awareness and participation of the persons who comprise the Board, and members of the Board are expected to bring their individual knowledge and awareness to meetings with them."
Order Sustaining Demurrer
In a written order, the trial court sustained the demurrer without leave to amend on the ground that plaintiff lacked standing to bring the action. The trial court dismissed the action. Plaintiff appealed from the order.
Costs
Defendants filed a memorandum of costs with the court. Plaintiff moved for an order taxing and striking costs, asserting that defendants failed to timely file a memorandum of costs, and that Goff was not a public employee or official, and therefore was not entitled to costs. In a minute order, the trial court denied plaintiff's motion to tax costs, and awarded costs to defendants in the amount of $910. Plaintiff appealed from this order as well.
Each brief filed in the Court of Appeal must "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority." (Cal. Rules of Court, rule 8.204(a)(1)(B).) Failure to follow these rules as to a given issue results in the forfeiture of that issue. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656 ["appellant must present each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made; otherwise, the point will be forfeited"].) Plaintiff does not expressly raise any arguments in his briefing about the order denying his motion to tax costs. Thus, plaintiff has forfeited any contention concerning the costs order.
DISCUSSION
I. Standing
A. Plaintiff's Contentions and Demurrers Generally
Plaintiff asserts that the trial court erred in sustaining the demurrer on the ground that he lacked standing. According to plaintiff, the trial court's determination constituted an unwarranted expansion of the Carsten holding, which we will discuss in detail, post.
A demurrer tests the sufficiency of the complaint as a matter of law, and it raises only questions of law. (Code Civ. Proc., § 589, subd. (a).) In reviewing an order sustaining a demurrer, we assume the factual allegations properly pleaded to be true. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) And "we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. [Citation.] Where the demurrer was sustained without leave to amend, we consider whether the plaintiff could cure the defect by an amendment. The plaintiff bears the burden of proving an amendment could cure the defect." (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162 (T.H.).)
Further undesignated statutory references are to the Code of Civil Procedure.
B. Standing Principles
"At its core, standing concerns a specific party's interest in the outcome of a lawsuit." (Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241, 1247), citing Carsten, supra, 27 Cal.3d at p. 798.) Section 1086, which addresses the circumstances authorizing the issuance of a writ of mandate, provides: " 'The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.' " (Italics added.) "The requirement that a petitioner be 'beneficially interested' has been generally interpreted to mean that one may obtain the writ 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, at p. 796.) "[S]ection 367 imposes a similar requirement for civil actions generally, stating: 'Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.' 'A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law.' " (Personnel Com. v. Barstow Unified School Dist. (1996) 43 Cal.App.4th 871, 877 (Personnel Com.).) If it is determined that a petitioner lacks standing, the petition "is vulnerable to a general demurrer on the ground that it fails to state a cause of action." (Carsten, at p. 796.)
In Carsten, the petitioner, a member of the Psychology Examining Committee of the Board of Medical Quality Assurance of the State of California, filed a petition for a writ of mandate to compel that agency to comply with Business and Professions Code section 2942 with regard to the licensing of psychologists. (Carsten, supra, 27 Cal.3d at p. 795.) The trial court sustained a demurrer without leave to amend primarily on the ground that the petitioner lacked standing as a party " 'beneficially interested' " as required under section 1086, and our high court affirmed. (Carsten, at pp. 795-796.) Our high court stated that, "It is clear that since petitioner is neither seeking a psychology license, nor in danger of losing any license she possesses under the rule adopted by the board, she is not a beneficially interested person within the meaning of the statute." (Id. at p. 797.) The petitioner asserted that there were "exceptions to the foregoing rule for property owners, taxpayers and voters, and she qualifies under the exceptions," and our high court agreed that "there are circumstances under which a citizen-taxpayer may compel a governmental instrumentality to comply with its constitutional or statutory duty." (Ibid.) However, our high court determined that the petitioner had no interest comparable to those at issue in the cases on which she relied. (Id. at pp. 797-798.) Our high court proceeded to note that, generally, "state taxpayers have standing to challenge the legality of the expenditure of public funds by any governmental agency [citation] and, unlike federal courts, most states permit such citizen-taxpayer suits even on nonfiscal issues." (Id. at p. 798.) Therefore, the court proceeded to consider "whether an administrative board member is, for purposes of this litigation, a mere taxpayer." (Ibid.)
First, our high court noted that, because the petitioner had no personal interest in the outcome of the litigation, she was "in effect seeking to have the courts render an advisory opinion on the propriety of an administrative action." (Carsten, supra, 27 Cal.3d at p. 798.) Second, our high court stated: "petitioner is in effect suing herself. She is the moving party in this litigation; the named defendant is the Psychology Examining Committee of the Board of Medical Quality Assurance, of which petitioner is part as a duly appointed member. It is unique to say the least, for one to sue herself and be both plaintiff and defendant in the same litigation. It may be said that she cannot lose the lawsuit, but we doubt that courts should encourage or permit this type of narcissistic litigation. We reach this conclusion because of the inevitable damage such lawsuits will inflict upon the administrative process."
The court continued: "That brings us to the policy issues which militate against permitting disgruntled governmental agency members to seek extraordinary writs from the courts. Unquestionably the ready availability of court litigation will be disruptive to the administrative process and antithetical to its underlying purpose of providing expeditious disposition of problems in a specialized field without recourse to the judiciary. Board members will be compelled to testify against each other, to attack members with conflicting views and justify their own positions taken in administrative hearings, and to reveal internal discussions and deliberations. Litigation - even the threat of litigation - is certain to affect the working relationship among board members. In addition, the defense of lawsuits brought by dissident board members - and such suits would undoubtedly be frequent - will severely tax the limited budgetary resources of most public agencies. [¶] From the vantage point of the judiciary such litigation has ominous aspects. It is purely and simply duplicative, a rerun of the administrative proceedings in a second, more formal forum. The dissident board member, having failed to persuade her four colleagues to her viewpoint, now has to persuade merely one judge. The number of such suits emanating from members on city, county, special district and state boards, will add significantly to court calendar congestion. [¶] While it is true that this petitioner is not only a board member but also a taxpayer, it is as a board member that she acquired her knowledge of the events upon which she bases the lawsuit. Her interest in the subject matter was piqued by service on the board, not by virtue of the neutrality of citizenship. The suit was brought in the former, not the latter capacity." (Id. at pp. 798-799.) The Carsten court concluded "that a board member is not a citizen-taxpayer for the purpose of having standing to sue the very board on which she sits." (Id. at p. 801.)
In Braude v. City of Los Angeles (1990) 226 Cal.App.3d 83 (Braude), a city council member filed a petition for a writ of mandate seeking, among other things, to command the respondents to set aside the adoption of an ordinance approving a particular development project and to comply with provisions of the California Environmental Quality Act with regard to the project. (Braude, at p. 86.) The Court of Appeal concluded that the petitioner lacked standing to bring the suit because he did not have a beneficial interest within the meaning of section 1086. (Braude, at pp. 87-89.) The court concluded that the petitioner "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" one of the freeways that would be affected by the project, but instead shared his "beneficial interest with hundreds of thousands of people who use the" freeway every day and the "several more hundreds of thousands of people [who] use this route on an occasional basis." (Id. at p. 88.) With regard to any beneficial interest, the Braude court concluded: "it is difficult to discern how Braude's interest is any more or any less than the admittedly large segment of the population who will also be affected by increased traffic congestion in the downtown area of the Harbor Freeway. Thus, while Braude 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 under the general rule of section 1086." (Braude, at p. 89.) The Braude court further concluded that, while an "ordinary citizen-taxpayer probably could successfully challenge the expenditure of public funds [the] project will likely require, Braude [was] foreclosed by the decision in [Carsten] from making this same argument." (Braude, at p. 90.) After discussing Carsten, the Braude court stated that, although Braude brought his suit in his individual capacity, "it would be exalting form over substance to ignore the fact Braude is also a member of the city council who was in the minority on this issue," and further concluded that, as a member of the city council, Braude had "forfeited his right to bring a lawsuit as a citizen-taxpayer against the governmental body of which he is a member." (Braude, at p. 91.)
C. Analysis
1. Section 1086 Beneficial Interest Standing and Carsten
We conclude that the trial court correctly sustained the demurrer on the ground that plaintiff lacks standing. Plaintiff has failed to identify any beneficial interest he has in these matters "over and above the interest held in common with the public at large." (Carsten, supra, 27 Cal.3d at p. 796.) As we shall discuss, insofar as plaintiff is suing in his capacity as a Director of the District, he is, in effect, suing himself which he is not allowed to do, and he has not established any beneficial interest or some other source of standing beyond his status as a citizen-taxpayer. (Carsten, at pp. 796-798; Braude, supra, 226 Cal.App.3d 83; see also Holbrook v. City of Santa Monica (2006) 144 Cal.App.4th 1242 (Holbrook).)
Here, the only "special interest to be served or . . . 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 p. 796) that plaintiff can demonstrate so as to establish standing under section 1086 is his status as a member of the District Board. However, as a member of the District Board suing to enforce his singular will, plaintiff is, in effect, suing himself which is prohibited under Carsten and its progeny. It is true that the Board is not a named defendant here. But as the court in Braude observed, while that plaintiff sued in his individual capacity rather than in his official capacity as a city council member, it would exalt form over substance to ignore the fact that the plaintiff was also a member of the city council and he was in the minority on the relevant issue. (Braude, supra, 226 Cal.App.3d at p. 91.) Here, it would exalt form over substance to ignore the fact that what plaintiff is attempting to do is enforce his singular will as a Board member merely because, through artful pleading or otherwise, plaintiff has declined to name the Board as a defendant. Plaintiff is a "disgruntled governmental agency member[] . . . seek[ing] [an] extraordinary writ[] from the courts." (Carsten, at p. 799.) He is suing to enforce the purported rights of his office as Director, and all of the same policy considerations in Carsten and Braude are present here. Additionally, as in Carsten, it is as a Board member that plaintiff acquired his knowledge of the events upon which he bases this lawsuit, his interest in the subject matter was piqued by service on the Board rather than by virtue of the neutrality of citizenship, and this action was brought in his capacity as a Director more so than as a neutral citizen. (Carsten, at pp. 798-799.)
See fn. 2, ante.
Plaintiff insists that this case is not about him contesting an act of the Board or the District, but instead is an action to enforce federal and state water laws and the District bylaws. He attempts to distinguish Carsten from this case on the basis that Carsten was concerned with a challenge to formal action by a Board, of which the complaining party was a member. Plaintiff asserts that neither Carsten nor its progeny "deal with the enforcement of federal or state law, and/or a local agency's Bylaws against the agency itself, or its employees." (Fn. omitted.) Plaintiff also asserts that Carsten did not address the situation where a Board member attempts to exercise the right to petition concerning a nuisance and other torts committed by a public employee who is not a member of the Board.
However, these protestations are evocative of matters addressed in Carsten. Our high court in Carsten discussed Holtzman v. Schlesinger (2d Cir. 1973) 484 F.2d 1307 (Holtzman), in which a member of Congress sued the Department of Defense, purportedly as a citizen-taxpayer, asserting that the United States' bombing of Cambodia was illegal. (Carsten, supra, 27 Cal.3d at p. 800.) Similar to plaintiff's argument that he is not protesting Board action, but instead is seeking to enforce federal and state water laws and District bylaws, our high court in Carsten characterized the position of the petitioner in Holtzman as not alleging "a mere policy disagreement but illegality of action by a government department." (Carsten, at p. 800.) The Carsten court stated, of the Holtzman court, that "[t]he court held [Holtzman] lacked standing, that she had her opportunity to present her views in the proper forum, the Congress, and '[t]he fact that her vote was ineffective was due to the contrary votes of her colleagues . . . .' " (Carsten, at p. 800, quoting Holtzman, at p. 1315.) Additionally, relevant to plaintiff's attempts to distinguish this case from Carsten, the Carsten court noted, "Holtzman had a better case than this petitioner; she did not sue the Congress, in which her views had been rejected - as petitioner sues the board in which she was defeated - but she proceeded against the Defense Department which was administering the alleged illegal activity. Nevertheless her suit was dismissed on the standing issue." (Carsten, at p. 800.) Like the plaintiff in Holtzman, plaintiff here had his opportunity to pursue his agenda a member of the Board.
Plaintiff relies on Holbrook, supra, 144 Cal.App.4th 1242, but that case is not at all helpful to him. In that case, two members of the Santa Monica City Council filed a petition for a writ of mandate and complaint for declaratory relief because, they claimed, the city council's meetings violated federal and state law. (Id. at p. 1245.) The trial court granted the defendant City of Santa Monica's section 425.16 special motion to strike on the grounds that the complained-of action arose from an act in furtherance of the right to free speech, and that "the plaintiffs could not show that they were likely to prevail in their lawsuit because they lacked standing to sue." (Holbrook, at p. 1246.) On appeal, with regard to standing, the defendant, relying on Carsten and Braude, asserted that "members of governmental boards and agencies lack standing to challenge in court the legality of actions taken by the governmental entity of which they are members." (Holbrook, at p. 1251.) The Holbrook court stated, "The California Supreme Court in Carsten and this court in Braude actually rendered much more limited rulings: A public official seeking a writ of mandate must have either a beneficial interest or some other source of standing beyond that of being a citizen-taxpayer. [Citations.] By becoming a member of the public entity, the official forfeits the citizen-taxpayer standing right." (Holbrook, at p. 1251, italics added.) The Holbrook court determined that the plaintiffs did not have a beneficial interest which would confer standing, and quoted Carsten in stating that the plaintiffs, "have not demonstrated that they have a '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.' " (Holbrook, at p. 1252, quoting Carsten, supra, 27 Cal.3d at p. 796.) The court continued: "As no beneficial interest in the workings of a governmental entity is conferred by serving on that entity, Holbrook and Katz have not established any beneficial interest sufficient to confer standing." (Holbrook, at p. 1254, fn. omitted.)
The Holbrook court further considered whether the plaintiffs had standing pursuant to the Ralph M. Brown Act (Gov. Code, § 54950 et seq.) (the Brown Act). Although plaintiff argues the Brown Act standing is not in issue here, we find the reasoning in Holbrook applicable here. The Holbrook court stated that the term " 'any interested person' " as that term is used in considering Brown Act standing "has been defined broadly." (Holbrook, at p. 1255.) The Holbrook court explained that "the standing conferred by the Brown Act is standing based on citizenship—precisely the kind of standing that a citizen forfeits when he or she becomes a public official." (Holbrook, at p. 1257.) Our high court's conclusions in Carsten, and the policy considerations discussed by the Carsten court were "entirely applicable" in Holbrook. (Holbrook, at p. 1258.) The Holbrook court concluded: "Accordingly, for the reasons set forth in Carsten, we conclude that when Holbrook and Katz accepted their seats on the Santa Monica City Council they forfeited the Brown Act standing they would otherwise have had as citizens of California to sue the City Council." (Holbrook, at p. 1259, fn. omitted.) Likewise, here, when plaintiff accepted his position on the Board, he forfeited any citizen-taxpayer standing right he may have had. (Id. at p. 1251.)
2. Citizen-Taxpayer Standing and District Bylaws
Plaintiff asserts that he pled beneficial interest in enforcement of the water laws and the District bylaws, and that he has proper standing "as a resident, citizen, elector, water consumer, taxpayer, and property owner within the District in addition to his Director status." Plaintiff asserts that he was entitled to mandamus by virtue of his position as a Director, and that, "as a person directly affected by the acts of the Defendant-Respondents herein, as a resident, registered voter, property owner of the District, and as a consumer of water provided by the District, . . . he very clearly also has standing which is independent of the generic California 'citizen taxpayer' status . . . ." We disagree.
While he makes this assertion, plaintiff fails to offer any substantive suggestion as to how the standing he describes as quoted ante differs from citizen-taxpayer standing. To the contrary, the substance of plaintiff's contentions amount to the assertions that he has standing based on his status as a Director on the District Board, and as a citizen-taxpayer. Contrary to plaintiff's contentions, he has failed to identify any beneficial interest or other basis for standing.
In addressing citizen-taxpayer standing, the Braude court stated that, under Carsten, because of his city council membership, the petitioner forfeited his right to bring a suit as a citizen-taxpayer. (Braude, supra, 226 Cal.App.3d at pp. 89-91.) The court in Braude noted that the petitioner was purporting to sue in his individual capacity rather than in his capacity as a member of the city council. (Id. at p. 91.) As we have noted, the Braude court concluded that "it would be exalting form over substance to ignore the fact Braude is also a member of the city council who was in the minority on this issue." (Ibid.) The Braude court concluded it was bound by Carsten, and that it was "compelled to find, Braude, as a member of the city council, has forfeited his right to bring a lawsuit as a citizen-taxpayer against the governmental body of which he is a member. [Citation.] Thus, Braude does not have standing as a citizen-taxpayer to seek an extraordinary writ against the city council of which he is a member." (Braude, at p. 91.) Holbrook is in accord. As we have noted, the Holbrook court concluded that, "[b]y becoming a member of the public entity, the official forfeits the citizen-taxpayer standing right." (Holbrook, supra, 144 Cal.App.4th at p. 1251, citing Carsten, supra, 27 Cal.3d at pp. 799-800.) Here, by becoming a member of the District Board, plaintiff has forfeited any citizen-taxpayer standing right he may have had.
Plaintiff also relies on Galbiso v. Orosi Public Utility Dist. (2010) 182 Cal.App.4th 652 (Galbiso), quoting the following language from that decision: "We first address the issue of standing. In a nutshell, when a person becomes a member of a governing body of a public entity, that person forfeits standing as a taxpayer-citizen to sue that public entity. [Citations.] Although it is true that Galbiso lacked standing as a member of the general public to sue OPUD for Brown Act violations, since she served on its board of directors, we do not believe that she asserted the third cause of action merely as a member of the general public. Rather, she had a personal stake in the outcome of the relief sought; specifically, whether the tax sale of her parcels would stand. That being the case, the demurrer to the third cause of action based on a lack of standing under the analysis of the above cases should have been overruled." (Id. at pp. 668-669, citing Carsten, supra, 27 Cal.3d at pp. 797-798 & Holbrook, supra, 144 Cal.App.4th at p. 1257, italics added.)
We note that this discussion of standing in Galbiso pertained to a cause of action premised on a Brown Act violation. (Galbiso, supra, 182 Cal.App.4th at p. 668.) In that cause of action, the plaintiff sought to enjoin the tax sale of her two parcels on the ground that the defendant's resolution to pursue that remedy was invalid based on a violation of the Brown Act. (Galbiso, at p. 668.)
Galbiso is obviously different from the instant matter. Unlike the circumstances here, the plaintiff in Galbiso did assert "an interest not held in common with the public at large." (Braude, supra, 226 Cal.App.3d at p. 88.) While the Galbiso plaintiff was a member of the public utility's board of directors, she was also a landowner who filed her complaint seeking injunctive relief preventing the "tax sale" of her own two parcels of land and a writ of mandate to correct the alleged abuse of discretion in refusing to grant her request for a tax reassessment. (Galbiso, at p. 658.) Galbiso was clearly beneficially interested in a way not shared by others who lived or owned property within the boundaries of the utility district. Here, other than based on his position as a Director, plaintiff has no more particularized interest in the District and its employees and/or independent contractors than any other customer served by the District. Plaintiff's reliance on Galbiso is misplaced.
Plaintiff also relies on Eiskamp v. Pajaro Valley Water Management Agency (2012) 203 Cal.App.4th 97. In that case, the plaintiff commenced the action seeking a declaration that a particular ordinance was invalid, a refund of augmentation charges, and an order directing the defendant to cease collection of the augmentation charges. (Id. at p. 100.) On appeal, the defendant asserted that the trial court correctly sustained its demurrer on the ground that the plaintiff lacked standing to seek a writ of mandate. (Id. at p. 103.) After reviewing Carsten and Braude, the Eiskamp court concluded: "Here, unlike the appellants in Carsten and Braude, Eiskamp has a 'direct and substantial' beneficial interest to be protected. [Citation.] He is the owner of three parcels of real property within the Agency's jurisdiction, and the Agency has imposed augmentation charges in connection with each of these parcels. Thus, though Eiskamp is a member of the Board of Directors, he has standing to pursue the present writ of mandate." (Id. at pp. 104-105, italics added.) Eiskamp is also not helpful to plaintiff. Unlike that case, plaintiff here is not seeking redress because charges have been imposed on his property, which could be a particularized beneficial interest to be protected. Instead, plaintiff is seeking to address the way in which the District facilities are operated, and by whom, matters no more particularized to plaintiff than any other customer within the District (but for plaintiff's office as a Director on the Board).
Plaintiff also asserts that the District bylaws afford him standing to advance this action. " 'Standing is a jurisdictional issue that . . . must be established in some appropriate manner.' " (Chiatello v. City and County of San Francisco (2010) 189 Cal.App.4th 472, 480.) " 'The issue of standing is determined by the courts as a matter of policy. In large measure it depends on the fitness of the person to raise the issues.' " (Id. at p. 481.) As defendants note, plaintiff has offered no authority for the proposition that a local community services district can, in its bylaws, confer standing on one of its directors, or the citizenry at large in a case such as this independent of the principles of standing in statutory and decisional law, nor are we aware of any such authority.
3. Nuisance
Plaintiff asserts that he brought this action not only for a writ of mandate, which would be subject to the standing requirements of section 1086, but also pursuant to the "nuisance laws." This contention is also meritless as he has failed to state facts that would provide standing to prosecute a nuisance claim.
A nuisance is "[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway." (Civ. Code, § 3479.)
In the first amended petition, with regard to his claims purportedly based on nuisance, plaintiff stated that he brought the action pursuant to section 731 and Civil Code section 3493. "Section 731 . . . governs who may bring an action for nuisance." (Multani v. Knight (2018) 23 Cal.App.5th 837, 855; see generally People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 51 [section 731 "expressly confer[s] standing," in that case on public officials bringing nuisance action on behalf of public generally].) Section 731 provides: "An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as defined in Section 3479 of the Civil Code, and by the judgment in that action the nuisance may be enjoined or abated as well as damages recovered therefor. A civil action may be brought in the name of the people of the State of California to abate a public nuisance, as defined in Section 3480 of the Civil Code, by the district attorney or county counsel of any county in which the nuisance exists, or by the city attorney of any town or city in which the nuisance exists. Each of those officers shall have concurrent right to bring an action for a public nuisance existing within a town or city. The district attorney, county counsel, or city attorney of any county or city in which the nuisance exists shall bring an action whenever directed by the board of supervisors of the county, or whenever directed by the legislative authority of the town or city." (Italics added.) Additionally, as stated ante, section 367 requires that civil actions generally are to be prosecuted in the name of the real party in interest.
With regard to private nuisance, plaintiff has advanced no allegations that his property has been injuriously affected, or that his personal enjoyment was lessened by a nuisance as defined in section 3479 of the Civil Code. While plaintiff implies that he owns property within the District, he otherwise makes no representations about such property whatsoever. Plaintiff asserts that, because Dingman has not obtained appropriate certification, his operation of District facilities violates federal and state law and constitutes a nuisance per se. However, plaintiff has not alleged injury to property or that his personal enjoyment has been lessened by a nuisance as required by section 731. There is no allegation that the lack of certification has resulted in a nuisance within the meaning of Civil Code section 3479. Even plaintiff's allegations that he has witnessed certain errors in Dingman's performance, such as improperly operating a chlorine tester and chlorine injection system at a water treatment plant and permitting water quality violations to occur do not further allege, or suggest, that these deficiencies actually resulted in a nuisance within the meaning of Civil Code section 3479, and further do not allege that such a nuisance injuriously affected his property or lessened his personal enjoyment. (§ 731.)
Plaintiff further alleges, upon information and belief, that defendants have conspired to "fail to abide by" the District bylaws and state law "regarding the legal and proper operation of the water production, treatment, and distribution facilities" of the District, posing a threat to District customers. However, once again, there is no allegation of an actual nuisance within the meaning of Civil Code section 3479, and there is no additional allegation that defendant has suffered injury to property or that his personal enjoyment has been lessened by a nuisance as required by section 731. In short, at most, plaintiff alleges the theoretical potential for a nuisance, rather than the existence of a nuisance, and further fails to allege any injury—that his property has been injuriously affected or that his personal enjoyment has been lessened—resulting from such nuisance. Thus, defendant has failed to allege facts satisfying the requirements of section 731 so as to confer standing on him to bring an action to address a private nuisance. (See generally Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 402 ["a plaintiff bringing a cause of action for private nuisance must show harm to a property interest"].) Plaintiff has failed to establish that he is someone " 'possessing the right sued upon by reason of the substantive law' " so as to be a real party in interest to a private nuisance cause of action. (Personnel Com., supra, 43 Cal.App.4th at p. 877 [discussing section 367 and the meaning of "real party in interest"].)
With regard to a public nuisance, plaintiff is not a district attorney, county counsel, or city attorney, the individuals authorized by the language of section 731 to bring a nuisance action in the name of the people of the State of California. Civil Code section 3493 provides: "A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise." (Italics added.) "The injury to the individual must, however, be different in kind and not merely in degree from that suffered by the general public." (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1137.) Plaintiff does not allege that he suffered any special injury within the meaning of Civil Code section 3493, or, for that matter, that he suffered any injury at all.
Plaintiff lacks standing to assert a claim for private or public nuisance.
4. Conclusion
We conclude that the trial court properly determined that plaintiff lacked standing to bring this action. We further note that, inasmuch as plaintiff lacks standing, he cannot cure the defect by amendment. (See generally T.H., supra, 4 Cal.5th at p. 162.) Therefore, we conclude that the trial court properly sustained the demurrer without leave to amend.
II. Matters Rendered Moot
Plaintiff makes a number of arguments not addressed to the trial court's determination sustaining the demurrer. Addressing another basis on which Goff relied in his demurrer, plaintiff asserts that he may bring a petition for mandate for acts other than ministerial acts. Plaintiff asserted that mandamus applied to all of the remedies sought in the first amended petition. Having concluded that the trial court correctly sustained the demurrer without leave to amend on the ground that plaintiff lacked standing, we need not address this alternate basis argued in support of Goff's demurrer.
Plaintiff asserts that the trial court erred in denying his motion to compel discovery. In this regard, he asserts that, because it appears the trial court denied the motion to compel for the reason that it was sustaining the demurrer without leave to amend, the trial court failed to exercise its discretion in entertaining the motion to compel, and that purported failure constitutes an abuse of discretion or error. Plaintiff further advances arguments as to the merits of his motion to compel. However, contrary to plaintiff's contention, the trial court's order sustaining the demurrer without leave to amend on standing grounds did indeed render his motion to compel discovery moot. Because we affirm the judgment of dismissal, plaintiff's claim on appeal related to the denial of his motion to compel is also rendered moot. (Hood v. Hacienda La Puente Unified School Dist. (1998) 65 Cal.App.4th 435, 437.)
Plaintiff further asserts that the District is not a party to this action, and it should not be. However, again, having concluded that the trial court properly sustained the demurrer without leave to amend on the ground that plaintiff lacked standing, whether or not the District was or should be a party to this action is a moot point.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278, subd. (a)(1), (2).)
/s/_________
MURRAY, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
MAURO, J.