Opinion
D081462
04-10-2024
DENISE M. HERRON, Plaintiff and Appellant, v. CITY OF CORONADO, Defendant and Respondent.
Stephen M. Hogan for Plaintiff and Appellant. Burke, Williams & Sorensen, Mark J. Austin for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2020-00036537-CU-OR-CTL, Carolyn M. Caietti, Judge. Affirmed.
Stephen M. Hogan for Plaintiff and Appellant.
Burke, Williams & Sorensen, Mark J. Austin for Defendant and Respondent.
IRION, ACTING P.J.
Denise M. Herron appeals from a judgment entered in favor of the City of Coronado (the City) following its successful motion for summary judgment challenging Herron's remaining cause of action for declaratory relief in which she sought a declaration that the City is in breach of the public trust based on its agreement to allow the operation of a restaurant at the Coronado Municipal Golf Course on land that it leases from the San Diego Unified Port District (the Port District). We conclude that the trial court properly granted summary judgment in favor of the City. We accordingly affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
This litigation involves a dispute over the operation of a restaurant on the Coronado Municipal Golf Course (the Golf Course). Herron's operative Second Amended Complaint (SAC) alleges that the land on which the Golf Course is situated was originally part of the tidelands or submerged lands that make up San Diego Bay. "The State of California holds title to the navigable waterways and the land beneath them within its borders as a trustee for the public," including tidelands, but "as trustee, may delegate its authority to manage and control public use to a local agency." (Graf v. San Diego Unified Port Dist. (1992) 7 Cal.App.4th 1224, 1228-1229 (Graf).)
Although this appeal follows an order granting summary judgment, the parties did not submit evidence detailing the history of the Golf Course in connection with that proceeding. Accordingly, we rely upon the allegations of the SAC for the relevant historical background.
According to the SAC, "[i]n 1923, the State Lands Commission conveyed what was then submerged property under Glorietta Bay to the City to be held and used in trust." (See City of Coronado v. San Diego Unified Port Dist. (1964) 227 Cal.App.2d 455, 468-469 [describing the history of the state's conveyance of certain tide and submerged lands to the City].) Subsequently, as alleged in the SAC, the City filled in the submerged lands and tidelands and constructed the Golf Course, which opened in 1957. (See ibid. [describing a 1957 amendment to the original grant, which "expanded the uses to which the land might be employed to include 'construction, maintenance and operation of public buildings, public works and playgrounds, and for public recreational purposes' "].)
Reclamation of tidelands by filling them in "does not [i]pso facto terminate the public trust." (Marks v. Whitney (1971) 6 Cal.3d 251, 261 (Marks); see also City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 478-479.)
In 1962, the Legislature enacted the San Diego Unified Port District Act (Stats. 1962, 1st Ex. Sess., ch. 67) (the Act), which created the Port District to manage and control "the tidelands and lands lying under the inland navigable waters of San Diego Bay." (Harb. &Nav. Code, appen. 1, § 4; see also Graf, supra, 7 Cal.App.4th at p. 1229.) The Act required that each city surrounding San Diego Bay (San Diego, Chula Vista, Coronado, National City, and Imperial Beach) (Harb. &Nav. Code, appen. 1, § 5) "convey to the [Port District] all its right, title and interest in and to the tidelands and submerged lands, together with any facilities thereon, which are owned by the city, including any such lands which have been granted in trust to the city by the State in the Bay of San Diego." (Id., appen. 1, § 14.) As specified in the Act, after conveyance by the relevant city, "the title to such lands shall reside in the [Port District], and the [Port District] shall hold such lands in trust for the uses and purposes and upon the conditions which are declared in this [A]ct." (Ibid.) As required by the Act, the City conveyed the Golf Course to the Port District.
The City currently leases the Golf Course from the Port District pursuant to a 1997 lease and its subsequent amendments, for a term ending on January 31, 2039 (the Golf Course Lease). The Golf Course Lease specifies the allowed uses of the premises: "[The City] agrees that the leased premises shall be used only and exclusively for the construction, operation, and maintenance of a public golf course open and available for use by the general public including driving range, pro shop, golf cart rental, and snack bar including the sale of alcoholic beverages, and for no other purposes whatsoever....[The City] further agrees not to construct or operate any hotel, motel, restaurant, or cocktail lounge on the premises or in conjunction with said golf course." The Golf Course Lease references the Act in the following provision: "[The Port District's] title is derived from the provisions of [the Act], and is subject to the provisions of said Act. This [Golf Course] Lease is granted subject to the terms and conditions of said Act."
The City contracts with Feast and Fareway, LLC (Feast) to provide food and beverage service at the Golf Course. The terms of the agreement between the City and Feast are set forth in a 2018 agreement (the Concession Agreement). According to the declaration of Feast's general manager, Feast is open to the general public daily from 7 a.m. to sunset. Feast also hosts private events, such as meetings and celebrations, but those events do not preclude the general public from accessing Feast during normal business hours.
On January 8, 2020, Feast barred Herron from its premises. Herron filed a lawsuit against the City and Feast on October 13, 2020.
Herron alleges that she was barred from Feast after she identified an alleged instance of sexual harassment between two employees. Feast's general manager confirmed in a declaration that Feast asked Herron to leave the premises after she claimed to have witnessed sexual harassment involving two employees, although, according to the declaration, Herron's sexual harassment allegations followed previous instances of disruptive behavior by Herron while intoxicated.
The SAC, filed June 23, 2021, alleged three causes of action against the City and Feast: declaratory relief, violation of the Unruh Civil Rights Act (Civ. Code, § 51), and retaliation in violation of Government Code section 12940, subdivision (h) (alleged against Feast alone). After the trial court's rulings on the parties' demurrers, Feast was dismissed from the case entirely and the only remaining cause of action against the City was for declaratory relief.
We affirmed the judgment of dismissal as to Feast in an unpublished opinion. (Herron v. Feast and Fareway, LLC (May 17, 2023, D079915) [nonpub. opn.].) With respect to the declaratory relief cause of action against Feast, we concluded "as a matter of law that the facts Herron has alleged [in the SAC] do not amount to a breach of the public trust." In the instant appeal, the parties have not attempted to argue that the doctrines of law of the case or issue preclusion apply here, and based on our resolution of this appeal on other grounds, we have no occasion to consider them.
The remaining cause of action for declaratory relief against the City alleges that "[t]he [Concession] Agreement under which [Feast] purports to operate is void and illegal because it violates the [Golf Course] Lease as amended and the Public Trust Doctrine by allowing to [Feast] to operate a restaurant as well as private events and banquets, all of which is prohibited by the [Golf Course] Lease as amended." The SAC alleges that "[a]s a member of the public, [Herron] has been and is now entitled to use this area and [the City and Feast] have no right to exclude [Herron] from the inside area described in the [Concession] Agreement or from the patios which are not controlled by [Feast]." According to the SAC, "[a]n actual dispute has arisen concerning [Herron's] use of the public facilities" as well as "concerning the [Concession] Agreement, and [Feast's] operations, because the [Concession] Agreement and operations violate the [Golf Course] Lease as amended and the Public Trust Doctrine. [Feast] has no legal right to operate its prohibited restaurant or private event business and therefore has no basis to exclude [Herron] from this public property."
Herron contends that Feast does not control the patio areas of the clubhouse on the Golf Course because the architectural drawing attached to the Concession Agreement as Exhibit A, which shows the premises where Feast will operate, purportedly does not show the outside patio areas of the clubhouse. Although Herron focuses on Exhibit A, we note that Exhibit F to the Concession Agreement contains extensive conceptual renderings that include several patio dining areas.
The SAC specifically sought a declaration that (1) "[the City and Feast] could not, and cannot, exclude [Herron] from either the area in which [Feast] may operate its concession under the [Concession] Agreement or the patio area, which is not included in the [Concession] Agreement"; and (2) "the [Concession] Agreement under which [Feast] purports to operate is void and illegal, and . . . its operations are prohibited by the [Golf Course] Lease as amended and the Public Trust Doctrine."
On May 16, 2022, Herron filed a motion for summary judgment against the City on her remaining cause of action for declaratory relief. Herron clarified that she was relying exclusively on the public trust doctrine to support her claim for relief. Specifically, Herron "request[ed] the court declare that the [City] is in breach of the public trust by the operation of its restaurant and private events venue at the [Golf Course]." On August 30, 2022, the trial court denied Herron's motion for summary judgment. Among other things, the trial court noted that "[t]here is no question, the Port District is the trustee of the City's golf course land, and at a minimum, should be a party in this action to participate in the litigation given their duties under the public trust doctrine."
On October 3, 2022, Herron filed a separate action against the Port District, in which she relied on the public trust doctrine to seek a writ of mandate ordering the Port District to require, among other things, that the City no longer allow Feast to operate at the Golf Course. (Herron v. San Diego Unified Port Dist. (Super. Ct. San Diego County, 2022, No. 37-2022-00039580-CU-WM-CTL).) The action was coordinated with Herron's litigation against the City, but not consolidated with it.
Meanwhile, on June 10, 2022, the City filed a motion for summary judgment challenging the SAC's remaining cause of action for declaratory relief. The motion for summary judgment was based on multiple grounds. First, the City argued that to the extent Herron relied upon the public trust doctrine, Herron was not entitled to relief for three reasons: (1) the Port District, not the City, was the public entity charged with protecting the public trust, requiring that Herron proceed against the Port District, not the City; (2) even if Herron could proceed against the City for an alleged breach of the public trust, Feast's operation at the Golf Course did not violate the public trust; and (3) insofar as Herron sought to invalidate the Concession Agreement based on the public trust doctrine, Feast was a necessary and indispensable party to that issue but was no longer a party to the litigation. Second, the City argued that to the extent Herron sought a declaration concerning the interpretation or validity of either the Concession Agreement or the Golf Course Lease, Herron was not entitled to such relief because she was neither a party to either contract nor a third party beneficiary.
On November 18, 2022, the trial court granted the City's motion for summary judgment. As the trial court characterized the SAC, it sought a declaration that the Concession Agreement "is void and illegal because it violates the Public Trust Doctrine by allowing Feast to operate a restaurant in violation of the [Golf Course Lease] and because Feast holds private events." Citing Center for Biological Diversity, Inc. v. FPL Grp., Inc. (2008) 166 Cal.App.4th 1349 (Center for Biological Diversity), the trial court explained that "[t]he public entity charged with preserving the public trust is the only party entitled to bring an action to stop a public trust violation.... If the entity declines to do so, a private party, such as [Herron], may seek to enforce the public trust doctrine by suing the public entity charged with protecting the public trust by way of a writ of mandate." The trial court ruled that "the City met its burden and the undisputed facts show the Port District is the trustee of the public trust land that includes the [Golf Course]," and it was not persuaded by Herron's contention that the City acted as a" 'co-trustee.'" According to the trial court, because the Port District was not named in the action, dismissal was justified. The trial court also observed that it was in "no position at this time and on this record to pass judgment on the sufficiency of the Port District's efforts or to express any opinion as to whether the public trust over the natural resources at issue is being adequately enforced."
In the same minute order, the trial court also denied Herron's motion for leave to amend the SAC to add the Port District as a party, which she filed on November 2, 2022. As the trial court explained, Herron was on notice for nearly a year that she should proceed against the Port District, but she unreasonably delayed in seeking leave to amend, and the trial date was rapidly approaching. The trial court also noted that Herron had recently filed a petition for writ of mandate against the Port District, and she would have "recourse" by pursuing that litigation.
In December 2021, the City first argued in its reply memorandum for its demurrer to the SAC that Herron was required to proceed against the Port District.
The trial court subsequently entered judgment in favor of the City. Herron appeals from the judgment.
II. DISCUSSION
A. Legal Standards for Review of a Ruling on a Motion for Summary Judgment
This appeal arises from an order granting summary judgment." 'A trial court properly grants a motion for summary judgment where "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)'" (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.) We" 'take the facts from the record that was before the trial court when it ruled on that motion. [Citation.]" 'We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.'" [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.'" (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39.)
B. The Public Trust Doctrine
As Herron has confirmed in the course of this litigation, her cause of action for declaratory relief against the City is based solely on her allegation that the City is in violation of the public trust by virtue of Feast's operations at the Golf Course.
Due to its broad wording, the SAC might be read as alleging that Herron also seeks declaratory relief on the separate issues of (1) whether the City is in violation of the Golf Course Lease by allowing Feast to operate at the Golf Course, and (2) whether the City and Feast are in violation of the Concession Agreement due to Feast's operation in the patio areas of the clubhouse. We note, however, that the trial court's ruling on Herron's motion for summary judgment on the declaratory relief cause of action determined Herron did not have standing to seek declaratory relief regarding a contract to which she is not a party or a third party beneficiary. Herron does not question that determination in her appellate briefing, and she does not describe her declaratory relief claim as seeking a ruling on any breach of contract theory. Instead, she focuses exclusively on her contention that the City is in breach of the public trust. As Herron states in her appellate briefing, her current theory is that the City's Concession Agreement with Feast creates a breach of the public trust in two ways: (1) the City improperly delegates the use of the Golf Course property to Feast instead of (a) imposing the use restrictions contained in the Golf Course Lease, and (b) prohibiting Feast from excluding members of the public from the premises, including Herron; and (2) the City engages in self-dealing by collecting substantial rents from Feast.
The public trust doctrine is derived from the English common law concept of the public trust, "under which the sovereign owns 'all of its navigable waterways and the lands lying beneath them "as trustee of a public trust for the benefit of the people."' [Citation.] The State of California acquired title as trustee to such lands and waterways upon its admission to the union ...." (National Audubon Society v. Superior Court (1983) 33 Cal.3d 419, 434 (National Audubon); see also Pub. Resources Code, § 6009, subd. (a) ["Upon admission to the United States, and as incident of its sovereignty, California received title to the tidelands, submerged lands, and beds of navigable lakes and rivers within its borders, to be held subject to the public trust for statewide public purposes, including commerce, navigation, fisheries, and other recognized uses, and for preservation in their natural state."].) The doctrine "is comprised of a set of principles that protect the public's right to use and enjoy property held within the public trust.... While the public trust doctrine is a source of state power over sovereign lands, it also imposes an obligation on the state trustee' "to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust." '" (San Francisco Baykeeper, Inc. v. State Lands Com. (2018) 29 Cal.App.5th 562, 569, citations omitted.) "[T]he state or trustee has 'an affirmative duty to take the public trust into account in the planning and allocation of [trust] resources, and to protect public trust uses whenever feasible.'" (San Francisco Baykeeper, Inc. v. State Lands Com. (2015) 242 Cal.App.4th 202, 234.)
As we have explained, the state "as trustee, may delegate its authority to manage and control public use to a local agency." (Graf, supra, 7 Cal.App.4th at p. 1229.) Pursuant to the Act, the state delegated to the Port District that authority concerning the tidelands and submerged lands on which the Golf Course is located. (Harb. &Nav. Code, appen. 1, § 14.) By statute, "[t]idelands and submerged lands granted by the Legislature to local entities remain subject to the public trust, and remain subject to the oversight authority of the state by and through the State Lands Commission." (Pub. Resources Code, § 6009, subd. (c), italics added.) Further, grantees, such as the Port District, "are required to manage the state's tidelands and submerged lands consistent with the terms and obligations of their grants and the public trust ...." (Id. at subd. (d), italics added.) Accordingly, the Port District acts as the trustee of the public trust with respect to the Golf Course.
C. Herron Was Required to Proceed Against the Port District to Enforce the Public Trust Because It Is the Trustee
In granting summary judgment, the trial court relied on Center for Biological Diversity, which held that a member of the public may not proceed directly against a third party that it alleges to be acting in violation of the public trust and must instead attempt to proceed against the public trustee. (Center for Biological Diversity, supra, 166 Cal.App.4th at pp. 1367-1368.) As Center for Biological Diversity explains, this rule derives from "traditional trust concepts," under which "plaintiffs, viewed as beneficiaries of the public trust, are not entitled to bring an action against those whom they allege are harming trust property. The trustee charged with the responsibility to implement and preserve the trust alone has the right to bring such an action." (Id. at p. 1367.) As the rule is applied in traditional trust cases, "where a trustee cannot or will not enforce a valid cause of action that the trustee ought to bring against a third person, a trust beneficiary may seek judicial compulsion against the trustee." (Saks v. Damon Raike &Co. (1992) 7 Cal.App.4th 419, 427.) Thus, in the context of the public trust doctrine, "members of the public may seek to compel the [trustee] agency to perform its duties, but neither members of the public nor the court may assume the task of administering the trust." (Center for Biological Diversity, at p. 1368.) Based on an analogy to traditional trust principles, "the action must be brought against the appropriate representative of the state [or its grantee] as the trustee of the public trust." (Id. at p. 1367.)
Although Center for Biological Diversity adopted and relied upon the procedures required in traditional trust cases, it explained that its holding was "supported by more than analogy" to the procedures used in those cases. (Center for Biological Diversity, supra, 166 Cal.App.4th at p. 1368.) As Center for Biological Diversity emphasized, determining whether a breach of the public trust has occurred in the area of natural resource management often requires the state or its grantee agency to apply its expertise and discretion. (Id. at p. 1354.) If a member of the public was permitted to proceed against a third party without involving the public trustee, such a proceeding would constitute an impermissible "attempt to 'bypass' the expertise" of the public trustee. (Id. at p. 1368.)
Herron's reply brief at times seems to frame the issue as whether she has standing to raise a claim based on an alleged violation of the public trust. However, neither the trial court's ruling nor Center for Biological Diversity, supra, 166 Cal.App.4th 1349, was based on the lack of standing to raise issues concerning the public trust. Case law makes clear that members of the public have standing to assert a violation of the public trust. (National Audubon, supra, 33 Cal.3d at p. 431, fn. 11.) Regardless of her standing, Herron's lawsuit against the City fails because it is directed at the wrong party in that it seeks relief against the City rather than the Port District.
As we have explained, the Port District is the public trustee of the public trust land on which the Golf Course is located. Based on the holding of Center for Biological Diversity, supra, 166 Cal.App.4th 1349, Herron was required to proceed against the Port District, as the trustee of the public trust, rather than against the City.
On two grounds, Herron contends that she was not required to proceed against the Port District in this action rather than against the City. First, she contends that the City also serves in the role of trustee of the public trust, making it appropriate for her to proceed against the City alone. Second, she contends that both common law trust principles and case law applying the public trust doctrine require that she be allowed to proceed with her litigation against the City. We discuss each argument in turn.
1. There Is No Merit to Herron's Contention That the City Acts as a Trustee of the Public Trust in Addition to the Port District
We first consider Herron's contention that her lawsuit against the City should have been allowed to proceed because the City is also a trustee of the public trust in the Golf Course tidelands.
Herron relies on certain provisions in Division 6 of the Public Resources Code that refer to the public trust responsibilities of entities to whom the state has made grants of public trust land. Herron points to Public Resources Code section 6009, which states that "(c) Tidelands and submerged lands granted by the Legislature to local entities remain subject to the public trust, and remain subject to the oversight authority of the state by and through the State Lands Commission. [¶] (d) Grantees are required to manage the state's tidelands and submerged lands consistent with the terms and obligations of their grants and the public trust ...." (Id. at subds. (c), (d).) Herron also points to Public Resources Code section 6305, which states that "[t]he powers granted by this chapter to the [State Lands Commission] as to leasing or granting of rights or privileges with relation to the lands owned by the state are hereby conferred upon the local trustee of granted public trust lands to which those lands have been granted." (Id., § 6305.)
Although her argument is somewhat unclear, Herron appears to contend that by virtue of the Golf Course Lease, the City is a "grantee" (Pub. Resources Code, § 6009, subd. (d)) or a "local trustee of granted public trust lands" (id., § 6305) as those terms are used in the Public Resources Code, and therefore the City (along with the Port District) acts as a trustee of the public trust.
We reject the argument because it is contrary to the meaning of the terms "grantee" and "local trustee of granted public trust lands" as used in Division 6 of the Public Resources Code. (Pub. Resources Code, §§ 6009, subd. (d), 6305.) Section 6306, subdivision (a) of the Public Resources Code specifically states that "[f]or purposes of this division, 'local trustee of granted public trust lands' means a county, city, or district, including a water, sanitary, regional park, port, or harbor district, or any other local, political, or corporate subdivision that has been granted, conveyed, or transferred by statute, public trust lands, including tidelands, submerged lands, or the beds of navigable waters, through a legislative grant." (Ibid., italics added.) Similarly, the "grantee" referred to in Public Resources Code section 6009, subdivision (d) is identified in the previous subdivision as a grantee who holds "[t]idelands and submerged lands granted by the Legislature to local entities." (Id. at subd. (c), italics added.) Herron cannot point to any legislative grant in favor of the City with respect to the Golf Course. Instead, the City has a legal interest in the Golf Course due solely to the Golf Course Lease with the Port District. The Public Resources Code provisions upon which Herron relies accordingly do not apply to the City.
Herron also points to certain parts of the Golf Course Lease to argue that the City "agreed to perform [the Port District's] duties[,] including its trust duties under the Act." Herron specifically relies upon (1) paragraph 24, which states that the Port District's title is derived from the Act and that the lease "is granted subject to the terms and conditions of said Act"; and (2) paragraph 18, which states that the City agrees that in its activities and uses of the leased premises, it will "abide by and conform to all laws and regulations prescribed by [the Act]" and other applicable laws. Herron's reliance on these provisions does not advance her argument because, on their face, neither contractual provision contains any agreement that the City will carry out the Port District's duties as a trustee. Further, as the City points out, the evidence it relied upon for its summary judgment motion included the undisputed statement in the declaration of the Port District's Department Manager for the Real Estate Department that the Golf Course Lease "did not delegate trust duties from the Port District to the [City], all of which were retained by the Port District with respect to the portions of the Golf Course leased to the [City]."
Finally, in her reply brief, Herron appears to argue that because the City is a public agency in the State of California, its status as lessee of public trust land gives it a duty to protect the public trust. To support this argument, Herron relies on Center for Biological Diversity, supra, 166 Cal.App.4th 1349. In that case, the issue was whether the plaintiff could assert a violation of the public trust against private parties who operated power generating wind turbines. The County of Alameda had approved the wind turbines, but plaintiff contended that the wind turbines harmed birds in violation of the public trust. (Id. at pp. 1355-1356.) Center for Biological Diversity explained that the public trust doctrine protected wildlife in general, not only water-related resources (id. at pp. 1359-1364), but it concluded that the plaintiff was required to proceed against the public agencies who acted as trustees of the public trust, rather than against the private wind turbine operators. (Id. at pp. 1366-1367.) In the specific situation before the court, Center for Biological Diversity identified those public agencies as including "the County of Alameda, which has authorized the use of the wind turbine generators," and "any agency such as California's Department of Fish and Game that has been given the statutory responsibility of protecting the affected natural resources." (Id. at p. 1367.)
Herron argues that in this case, the City, like the County of Alameda, is a public agency that acts a trustee of the public trust. We disagree because the court's identification of the County of Alameda as a public trustee in Center for Biological Diversity, supra, 166 Cal.App.4th 1349, was based on the specific facts of that case. Focusing on the dispute over the management of wildlife natural resources at issue, Center for Biological Diversity explained that the County of Alameda "as a subdivision of the state, shares responsibility for protecting our natural resources and may not approve of destructive activities without giving due regard to the preservation of those resources." (Id. at p. 1371, fn. 19.) It specifically cited the California Environmental Quality Act, which sets forth the policy of" 'insur[ing] that fish and wildlife populations do not drop below self-perpetuating levels,'" and requires public agencies to regulate private activities" 'so that major consideration is given to preventing environmental damage.'" (Center for Biological Diversity, at p. 1371, fn. 19, quoting Pub. Resources Code, §§ 21001, subd. (c), 21000, subd. (g).) Those considerations do not apply where, as here, the breach of the public trust does not concern the management of wildlife resources, and the City is involved with the Golf Course solely as a lessee. Nothing in Center for Biological Diversity supports the proposition that a public agency assumes a duty, as trustee, to protect the public trust merely by becoming the lessee of trust property.
2. Case Law Does Not Allow Herron to Proceed Against a Party That Is Not the Trustee of the Public Trust
Herron contends that she should have been permitted to proceed against the City because "firmly established law recognizes beneficiaries' rights to protect the public trust by suing third-parties who are harming it." The argument relies on two sources: (1) case law discussing traditional trust principles, and (2) case law discussing the public trust doctrine.
In relying upon traditional trust principles, Herron cites to King v. Johnston (2009) 178 Cal.App.4th 1488, 1500, which explains that "a beneficiary may pursue claims against a third party on his or her own, without participation by the trustee, when that third party actively participated in, or knowingly benefited from, a trustee's breach of trust." King acknowledges the general rule that" 'a trust beneficiary cannot sue in the name of the trust,'" but then identifies an important exception. (Ibid.)" '[A] trust beneficiary can bring a proceeding against a trustee for breach of trust'" and" 'can pursue a cause of action against a third party who actively participates in or knowingly benefits from a trustee's breach of trust.'" (Ibid.)" '[I]t is not necessary to join the trustee in the suit, because "primarily it is the beneficiaries who are wronged and who are entitled to sue ...." [Citation.] The liability of the third party is to the beneficiaries, rather than to the trustee, "and the right of the beneficiaries against the [third party] is a direct right and not one that is derivative through the trustee." '" (Ibid.) Accordingly,"' "[w]hen the claim being asserted rests in whole or in part on alleged breaches of trust by the trustee, a beneficiary has standing to pursue such a claim against . . . such third parties alone." '" (Id. at pp. 1500-1501, italics added.) The exception described in King does not apply here because Herron does not contend that the Port District, as trustee, breached the public trust and that the City benefited from that breach. Instead, Herron's theory is that the City, itself, has violated the public trust by allowing Feast to operate at the Golf Course.
Herron also cites Witkin's description of two circumstances in which a beneficiary can sue a third party: (1) where the trustee has failed to act, the third party maybe be joined in a suit against the trustee; and (2) where the trustee has wrongfully transferred trust property to third parties. (13 Witkin, Summary of Cal. Law (11th ed. 2023) Trusts, § 168.) The first circumstance does not assist Herron, because it requires a suit against the trustee. The second circumstance is not relevant here because there is no allegation that the trustee wrongfully transferred trust property.
With respect to case law discussing the public trust doctrine, Herron relies primarily upon Marks, supra, 6 Cal.3d 251. She characterizes that case as "recogniz[ing] [a party's] standing to sue [a] private citizen for breach of the public trust without so much as suggesting such a suit could only be brought against the state" as the trustee of the public trust. Marks does not support Herron's argument.
Marks was a quiet title action between two private landowners. (Marks, supra, 6 Cal.3d at p. 256.) The first landowner owned waterfront property, with title to the tidelands on that property. (Ibid.) A dispute arose over whether the first landowner could fill in the tidelands that adjoined the second landowner's upland property. (Ibid.) As part of the quiet title proceeding, the second landowner sought a declaration that the first landowner's title "was burdened with a public trust easement." (Ibid.) Marks held that the second landowner had standing to ask the court "to recognize and declare [a] public trust easement" over the first landowner's property (id. at p. 261, italics omitted), although the court was permitted to address the issue in any event because "the court may take judicial notice of public trust burdens in quieting title to tidelands," as a matter "of great public importance" to "avoid needless future litigation." (Id. at p. 257.) Marks did not consider whether the state was a necessary party. The issue appears not to have been raised, perhaps due to the fact that the state, through the State Lands Commission, did participate as amicus curiae and asked the court "to declare the existence of the public easement and to recognize the right of [the second landowner] as a member of the public and as a littoral owner to have the existence of the easement in these tidelands declared in this action." (Id. at p. 257 &fn. 1.) The instant litigation is not a quiet title action, and we do not view Marks as supporting Herron's contention that she may "protect the public trust by suing third-parties who are harming it," without involving the Port District.
In sum, we conclude that the trial court properly granted summary judgment in favor of the City on the ground that the trial court identified, namely, that Herron did not have a cause of action directly against the City alleging a violation of the public trust.
Because we affirm the order granting the City's motion for summary judgment on the ground relied upon by the trial court, we need not, and do not, address the alternative grounds for summary judgment advanced by the City.
D. The Trial Court Was Not Required to Order Joinder of the Port District as an Indispensable Party
Herron contends that the trial court had a "statutory duty to order joinder" of the Port District in this action as an indispensable party instead of dismissing the action.
For this argument, Herron relies on Code of Civil Procedure section 389. That section provides, in relevant part:
"(a) A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.
"(b) If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable." (Code Civ. Proc., § 389.)
According to Herron, the trial court misapplied this provision because it did not consider whether it was possible to join the Port District in the action and did not order joinder. Herron further argues that if, for some reason, the Port District could not be joined, dismissal should have been without prejudice pursuant to Code of Civil Procedure section 389, subdivision (b).
We note that Herron argues a dismissal without prejudice was warranted because it "would have permitted [her] to file a new action in which she could have joined the Port District." Herron's statement overlooks the fact that she already had an action pending against the Port District when the trial court entered judgment in favor of the City. The judgment in favor of the City in the instant case did not prevent Herron from proceeding with the action against the Port District.
Herron's argument fails because it is premised on the erroneous assumption that the trial court determined the Port District was an indispensable party as described in Code of Civil Procedure section 389 and granted summary judgment in favor of the City on that basis. Based on our review of the trial court's ruling, it did not rely on a determination that the Port District was an indispensable party that could not be joined. Although the trial court noted in its prefatory comments that one of the City's affirmative defenses was failure to join an indispensable party, the trial court's explanation of its summary judgment ruling does not rely on Code of Civil Procedure section 389 and does not state that the Port District is an indispensable party within the meaning of that provision. Instead, the trial court based its ruling on the holding of Center for Biological Diversity, supra, 166 Cal.App.4th 1349, under which a member of the public lacks a direct cause of action against a third party for an alleged violation of the public trust and must instead attempt to proceed against the public agency that serves as the trustee.
Significantly, Center for Biological Diversity, supra, 166 Cal.App.4th 1349, identified the failure to join an indispensable party as an alternative ground for dismissing the action against the wind turbine operators. However, its holding that a member of the public cannot proceed against a third party for a violation of the public trust did not depend on that doctrine. Specifically, Center for Biological Diversity explained that "[e]ven if the court were to recognize a theoretical cause of action on behalf of the public against the wind farm operators" (id. at p. 1371), "it is now too late for an action against the county to set aside the conditional use permits that have already been issued. The dismissal of the action, therefore, also may be justified by the absence of a necessary and indispensable party." (Id. at p. 1372, italics added.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DATO, J., BUCHANAN, J.