Madden v. City of Redwood City CA1/2 ( 2020 )

Filed 11/25/20 Madden v. City of Redwood City CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ALISON MADDEN,
Plaintiff and Appellant,
A156288
v.
CITY OF REDWOOD CITY et al. (San Mateo County Super. Ct.
No. 17CIV00316)
Defendants and Respondents.
In 2016, the City of Redwood City (City) settled a lawsuit challenging
its operation of the Docktown Marina. Pursuant to a settlement agreement
in that litigation, the City adopted a plan for the termination of residential
use of berths at the marina and provision of relocation assistance to displaced
residents. The present case challenges the settlement agreement and plan as
beyond the authority of the City Council (Council). After numerous rounds of
demurrers and amendments of the complaint, the trial court denied further
leave to amend and entered judgment for the City. For the reasons explained
in this opinion, we will affirm.
BACKGROUND
Appellant Alison Madden resides on a houseboat (or “liveaboard”)
located at the Docktown Marina on Redwood Creek in Redwood City, under a
lease with the City. The residential community at Docktown was established
by private operators pursuant to a revocable permit from the City, and the
1
City assumed operation in 2013, when the private operator terminated
operations.
Docktown is located within an area granted to the City by the State of
California, to hold in trust for the people of the state and use for specified
public purposes. (Stats. 1945, ch. 1359 [granting “certain lands, salt marsh,
tidelands, submerged lands”]; Stats. 1954, ch. 34 [amending chapter 1359].)
Such land grants “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).)
In 2014, the State Lands Commission (Commission) informed the City
that the Docktown “residential floating home community” violated the terms
of the granting statutes and was inconsistent with the common law public
trust doctrine, noting that, based on advice from the Office of the Attorney
General of California, Commission staff had consistently taken the position
that “residential use of sovereign lands” was inconsistent with the public
trust doctrine.
In June 2015, Deputy Attorney General Andrew Vogel responded to the
Commission’s request for “informal advice” on the legality of private
residential use of houseboats at Docktown with a letter stating that such
private residential use violates “the terms of the statutes by which the
Legislature granted these tidelands in trust to the City and the common law
public trust doctrine.” This “Vogel letter” was subsequently provided by the
Commission to the City.
In November 2015, Citizens for the Public Trust and Ted J. Hannig
(Citizens/Hannig) filed suit against the City, alleging that the City’s
operation of Docktown violated the public trust doctrine and was causing
financial and environmental harm. The parties entered into a settlement
2
agreement in January 2016, which provided, among other things, that
“[a]bsent a superseding and publicly documented change in the Commission’s
policies, an opinion by the AG, and/or a superseding action by the
Legislature, which allows residential use in Docktown, the City shall take
formal action, no later than December 31, 2016, to adopt a Plan that will be
in conformance with the Commission’s policies concerning residential use of
the public trust portion of Docktown and consistent with the AG’s 6/9/15
Letter. By December 31, 2017, the City shall have undertaken its best efforts
and action towards prompt implementation of the Plan.” The settlement
agreement provided for the City to create a “Docktown Fund” of $3,000,000 to
address environmental and public trust issues, such as possible relocation
assistance, and to pay Citizens/Hannig $1,500,000.
On December 12, 2016, the Council approved Resolution 15550,
adopting the “Docktown Plan,” directing the City Manager to terminate all
“Live Aboard” rental agreements and authorizing the City Manager to take
all actions necessary to implement the purposes of the Docktown Plan. The
resolution’s findings explain that the residential community at Docktown was
established by private operators prior to the City assuming operation in 2013;
the Commission had “made clear that private residential use of Docktown is
inconsistent with the public trust doctrine”; the City had entered into a
settlement agreement to resolve the Citizens/Hannig suit, which “requires
the City to adopt a plan for Docktown that is in conformance with the
[Commission’s] determination that residential use of the public trust portion
of Docktown does not comply with the public trust doctrine”; the cessation of
residential use would require relocation of approximately 65 households,
including many long-term residents; and the City desired to ensure a smooth
transition for displaced residents by providing “a reasonable relocation
3
process and schedule, including the provision of relocation advisory
assistance, and financial assistance, even though no state or federal law
mandates such assistance.”
On January 23, 2017, San Francisco Bay Marinas for All, Inc. (SFBM)
filed the present taxpayers’ action (Code Civ. Proc., § 526a)1 against the City,
Citizens/Hannig and Doe defendants to set aside the settlement agreement
and for declaratory and injunctive relief. After introductory allegations
including that the public trust area where Docktown is located was granted
to the City as trustee by the Commission, the complaint alleged that the City
lacked jurisdiction to enter the settlement agreement because the City
charter vests exclusive control over the “Port Area,” in which Docktown is
located, in the Port Department (Port) and Board of Port Commissioners
(Board), including exclusive power to sue and defend any action within the
Port’s jurisdiction and to enter contracts. It was alleged that the charter
allows the Port to relinquish portions of the Port Area to the Council; the Port
did so with areas including part of Docktown in the late 1950’s and early
1960’s; and the “City returned jurisdiction of all of Docktown to the Port in
the ‘70’s.” It was further alleged that the liveaboards were permissible under
the public trust doctrine because they did not interfere with public use of the
tidelands or because of the public need for affordable housing.
SFBM filed a first amended complaint on February 14, 2017, followed
by an unsuccessful ex parte application for an order to show cause for
preliminary injunction.
The City and Citizens/Hannig filed demurrers, which the trial court
overruled in part and in part sustained with leave to amend. The court found
1Further statutory references will be to the Code of Civil Procedure
unless otherwise specified.
4
the allegations insufficient to establish taxpayer standing, as there was no
allegation SFBM paid or was liable to pay a tax assessed by the City, and
insufficient to challenge the City’s discretionary decision to settle litigation
under caselaw holding that a section 526a claim cannot be used to challenge
a governmental entity’s discretionary action absent allegations of fraud or
collusion by the decision makers. As to the City’s jurisdiction, the court held
that because Public Resources Code section 6009.1, subdivision (c)(13),
prohibited a trustee of public land from delegating its duties except by direct
supervision, any transfer of jurisdiction from the City to the Port was either
preempted by state law or subject to the City’s direct supervision.2 The court
sustained the demurrer to the third cause of action for declaratory relief,
which sought adjudication of Docktown residents’ rights with respect to the
Commission’s interpretation of the public trust doctrine, for failure to join an
indispensable party, the Commission.
On July 10, 2017, Madden joined SFBM as plaintiff in filing a second
amended complaint against the City, Citizens/Hannig, again alleging that the
City lacked jurisdiction to enter into the settlement agreement or Docktown
Plan because the area within which Docktown is located is under the
exclusive jurisdiction of the Port. On the same date, an amendment to the
complaint was filed inserting the Commission in place of Doe 1. The City and
Citizens/Hannig again demurred.
The trial court sustained the demurrers as to SFBM without leave to
amend, again due to the absence of allegations this plaintiff paid or was
liable to pay a tax assessed by the City. As to Madden, the court sustained
2 The court found the evidence offered by the City inadequate to
determine that the allegations concerning transfers of jurisdiction from the
City to the Port were false, as the City maintained.
5
the demurrers with leave to amend. The court reiterated its conclusion that
any transfer of jurisdiction over Docktown to the Port was necessarily either
preempted by state law or subject to the City’s direct supervision (Pub.
Resources Code, § 6009.1, subd. (c)(13)) and noted that the second amended
complaint contained no new allegations establishing a basis for finding the
City acted unlawfully, but gave Madden an opportunity “to establish a basis
by which either the Settlement Agreement or the Docktown Plan is the
product of fraud or collusion or is unlawful.”
On October 12, 2017, Madden, now acting in propria persona in place of
the attorney who previously had represented her and SFBM, filed her third
amended complaint against the City, Citizens/Hannig and Doe defendants.3
This complaint added allegations that “Citizens for the Public Trust, the
developer of the property across from Docktown, and former or current
elected and/or appointed officials, agents, personnel and representatives of
the City” colluded to bring about and settle the lawsuit by Citizens for the
Public Trust “in order to set up the closure of Docktown and enrich Ted
Hannig and his associated developer monied interests.” Other new
allegations included that “the Port Department ‘is’ the City of Redwood City,
it has capacity (exclusive jurisdiction) over its Port Area and it acts ‘as the
City of Redwood City, by and through its Port Department” and that the Port
“is not overseen by the City council or city Manager” and “is equal, and co-
equal to the Council as ‘the City of Redwood City.’ ”
Then, on January 18, 2018, Madden filed a motion for leave to file a
fourth amended complaint, stating (among other things) that she was
3 In a writ petition to this court, Madden stated that she substituted
herself for former counsel to represent SFBM, as well as herself. To our
knowledge, the only substitution of counsel form in the record is for Madden
alone, not for SFBM.
6
required by the court’s prior order to add the Commission as a converted Doe
defendant. The proposed complaint alleged causes of action against the
“City/Council/Port,” Citizens/Hannig to “set aside agreements for violation of
city charter,” for declaratory relief against the City, Port, Does 2 to 100, and
the Commission, and for declaratory relief against the Commission and
Attorney General. Madden alleged the June 2015 letter from Deputy
Attorney General Vogel to the Commission had been improperly
characterized as an “ ‘official’ Attorney General opinion” and this
mischaracterization “drove the Hannig Suit and Settlement and is the
foundational error on which all of the proceedings and proceedings have
evolved.” Madden added allegations of collusion between the City and
“ ‘barge dwelling’ owners” (as opposed to boat dwellers) “to loot the taxpayers
of millions of dollars” before a trial court ruling on the merits of a CEQA
lawsuit filed by SFBM (No. 17CIV00276). With respect to the jurisdiction
issues, Madden alleged, “The Port was always trustee by virtue of City’s 1929
Charter. As City’s Charter created the Port Department before 1945, the
Port is and always has been trustee of Granted Lands. The Charter is not a
‘delegation’ of duty. The Port and BOPC hold all legislative and other
authority over Granted Lands as City. . . .”
The City and Citizens/Hannig filed demurrers to the third amended
complaint, followed by oppositions to Madden’s motion for leave to file a
fourth amended complaint, which were consolidated for hearing on August 2,
2018.4 In connection with overruling Madden’s objections to assignment of
4 The trial court proceedings were temporarily stayed pending our
resolution of a writ petition Madden filed on February 27, 2018, challenging
the dismissal of SFBM from the action and denial of the order to show cause
re preliminary injunction and seeking peremptory disqualification of Judge
7
the case to the writs and injunction calendar, the court held that jury trials
are not permitted in section 526a injunction proceedings. The court
sustained the City’s demurrer to the first and second causes of action of the
third amended complaint with leave to amend “to allege, in a single cause of
action brought pursuant to CCP 526a, each specific act by the City of
Redwood City that is alleged to be unlawful and/or the product of collusion
and each remedy sought including any injunctive or declaratory relief
concerning each specific act alleged to be unlawful or the product of
collusion.” The court sustained the City’s demurrer to the third cause of
action for declaratory relief without leave to amend, stating that a request for
declaratory relief “may not be brought with regard to the official actions of a
public agency except in the context of a Taxpayer Action pursuant to CCP
526a such as that alleged in the First Cause of Action.” The court denied
Madden’s motion for leave to file a fourth amended complaint without
prejudice “to the right to seek leave to amend to allege specific causes of
action against specific parties for specific relief that are appropriately joined
to the instant action.” The court explained that the proposed second and
third causes of action “improperly join a variety of parties and claims only
marginally related to the instant action and fail to establish a basis for relief
against those parties” and contained no allegations establishing taxpayer
standing with regard to the Attorney General, Commission, or Port, but that
Miram. We issued a temporary stay, then on May 30, 2018, denied the
petition and dissolved the stay. The California Supreme Court denied
Madden’s petition for review on June 20, 2018.
8
the proposed first cause of action constituted a “successful offer of proof that
allegations of collusion could be alleged. . . .”5
On July 26, 2018, Madden served the third amended complaint and a
summons on the Commission, stating it was “sued herein as Doe 1.”
Madden filed a fourth amended complaint on August 14, 2018, against
the City “ex rel. its Council,” the City “ex rel its Port Department and Board
of Port Commissioners,” Citizens/Hannig, the Commission, the Office of the
Attorney General and Doe defendants. This complaint deleted some of the
more tangential allegations of collusion and alleged a single cause of action to
“set aside agreements for violation of city charter; illegal contract; collusion.”
Madden alleged that Hannig, “Council members” and “Port members”
colluded by meeting “to devise a method and manner by which Hannig would
be paid, Docktown would be cleared, and the One Marina complex and
developer would obtain a walkway under 101 (the underpass) that it had not
been able to secure by other available planning methods.” Madden alleged
“the collusion was to have Hannig sue the City ex rel its Council and threaten
to attach the General Fund” so the City “would wrongly assert jurisdiction
and state a plausible basis upon which to settle immediately and pay Hannig
$1.5 million,” whereby Hannig and the developer would recoup funds spent in
other litigation against Madden and SFBM.
Demurrers were filed by the City, Citizens/Hannig and the
Commission, as was a motion to strike by the Commission, with a hearing set
5 Madden filed another writ petition in this court on August 20, 2018,
challenging the trial court’s denial of a jury trial, ruling on both the
demurrers and the motion for leave to amend rather than granting leave to
amend and finding the demurrers moot, and requiring Madden to plead
collusion or fraud, which Madden argued are not required in order to prove
an “ultra vires illegal act” in violation of the charter. We denied the petition
on August 23, 2018.
9
for October 18, 2018. On October 3, 2018, however, Madden filed a motion for
“leave to file fifth amended complaint before demurrer opposition.” The
proposed complaint alleged a cause of action entitled “Mandamus and CCP
Sec. 526a Violation (Illegal Acts)” and added new allegations that
“liveaboards are legal and the entire basis for the Hannig settlement is
wrong, and knowingly so”; the Commission never voted on questions
concerning the legality of liveaboards under the public trust doctrine; the
authority provided in the Vogel letter pertained to structures on land, not
boats or barges on water; and the letter and position taken by Attorney
General and Commission staff constituted “underground rulemaking.”
Madden alleged that in addition to the collusion underlying the
Citizens/Hannig lawsuit and settlement for the purpose of closing Docktown
and enriching Hannig, the Council’s actions regarding the settlement were
“ultra vires (outside its capacity, outside charter jurisdiction) and performing
a duty specifically enjoined (lack of jurisdiction given to another body that ‘is’
the City of Redwood City—to wit the Port and BOPC),” and the Council had
no capacity or discretion to “even entertain the defense and settlement of the
Hannig Suit.”
On October 23, 2018, Madden filed a motion to consolidate the case
with an unlawful detainer action the City had filed against her. This motion
and the demurrers were set for hearing on November 15, 2018.
On November 15, 2018, the trial court granted the Commission’s
motion to strike the fourth amended complaint, denying leave to amend
because Madden “failed to articulate a viable CCP 526a collusion claim”
against the Commission. The court sustained the City’s and Citizens/Hannig
demurrers to the fourth amended complaint without leave to amend and
dismissed the action as to these defendants “because plaintiff has failed to
10
articulate specific facts establishing a viable CCP § 526a collusion claim
involving members of the City Council of the City of Redwood City who
approved the Hannig Settlement and Docktown Plan ordinances.” The court
denied Madden’s motion to consolidate and denied her motion for leave to file
a proposed fifth amended complaint without prejudice to the right to seek
leave to file an amended complaint “alleging a viable Mandamus or CCP 526a
claim[] against the City of Redwood City, the Port, the State Lands
Commission, or the Attorney General.”
Madden then filed a motion for leave to file a fifth amended complaint,
alleging that the members of the Council that adopted the Docktown Plan
“were aware of their lack of jurisdiction, of the Port’s possession of such
jurisdiction, and did act in concert to enter into an illegal act under the City
charter in violation of such jurisdiction (i.e. without capacity or authority)
(‘collusion’)” and that the Commission and Attorney General “participated in
a joint effort to bring about the illegal act.”6 New allegations described
“ ‘Charter Revision’ Committee meetings” discussing a proposal to change the
charter “to provide for the Council to assert oversight and approval control
over the Port Dept. for the first time since the City Charter was adopted,”
which allegedly demonstrated the Council’s awareness it lacked jurisdiction
over the Port Area.
After a hearing on January 24, 2019, the trial court entered judgment
in favor of the defendants. The court denied leave to file the proposed
complaint, finding it sought to relitigate claims the court had already ruled
upon, as all the substantive relief appellant sought addressed discretionary
Madden filed this motion on December 20, 2018, then filed an
6
amended motion on December 24, 2018.
11
acts as to which the court had previously denied relief.7 The court reiterated
that the defendants’ right to sue and be sued included the discretionary right
to settle litigation, and found appellant’s contention that “some portion of
Docktown is physically located outside the geographic area over which the
City of Redwood City has jurisdiction” did not establish the City “acted in an
arbitrary or capricious manner” either “when it settled litigation naming it
[as] defendant and asserting that it was breaching a nondelegable duty as a
trustee of public lands by leasing berths to Docktown liveaboards” or “when it
exercised its discretion to terminate leases to Docktown liveaboards or bring,
or agree to bring, unlawful detainer actions seeking to evict Docktown
residents who declined to surrender possession after their lease was
terminated.” Noting that it had previously ruled a challenge to discretionary
ordinances enacted by the City would have to establish fraud or collusion by
the Council members who voted to enact them, the court held “as a matter of
law” that the only actions alleged as a basis for fraud and collusion in the
proposed amended complaint—voting to approve the settlement of litigation
against the City and to terminate Docktown leases and pursue eviction—did
not constitute fraud or collusion.
The trial court filed a judgment of dismissal in favor of the City on
January 29, 2019.8
7 As described by the trial court, Madden requested that the court
declare the Docktown Plan and Citizens/Hannig settlement void, order
recovery of funds paid pursuant to the Docktown Plan or settlement, enjoin
implementation of the Docktown Plan and eviction of residential liveaboard
tenants, and order the Port to enter lease agreements with Docktown
residences substantially similar to Redwood City liveaboards in other
locations.
The judgment of dismissal referenced the court’s orders denying
8
Madden’s motion for leave to file a fifth amended complaint with prejudice,
12
Madden filed a notice of appeal on January 23, 2019, and an amended
notice of appeal on January 24, 2019.9
DISCUSSION
“On review [from an order sustaining a demurrer], ‘we examine the
complaint de novo to determine whether it alleges facts sufficient to state a
cause of action under any legal theory, such facts being assumed true for this
purpose. [Citations.]” (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th
412, 415.) “ ‘ “We treat the demurrer as admitting all material facts properly
pleaded, but not contentions, deductions or conclusions of fact or law.
[Citation.] We also consider matters which may be judicially noticed.” ’ ”
sustaining the City’s demurrer to Madden’s fourth amended complaint
without leave to amend, and sustaining the City’s demurrer to SFBM’s
second amended complaint without leave to amend.
9 On April 24, 2019, Madden filed a “Request for Immediate,
Temporary, Emergency Stay of Docktown Plan,” which we deemed a petition
for writ of supersedeas and denied. The California Supreme Court denied
Madden’s petition for review and we subsequently denied her petition and
supplemental petitions for rehearing.
In January 2020, after failing to file her reply brief on the present
appeal by its due date in December 2019, appellant filed an “Advisement of
Custody, Request of Oral Argument and for Extension of Reply Briefing,”
informing the court she was in custody with an expected release date of April
18, 2020, and requesting an extension of time to file the reply brief until May
15, 2020. This request was granted, but the reply brief was not filed by May
15, 2020. On June 11, 2020, Madden filed “Appellant’s Post-Custody
Advisement, Request for Acknowledgment of Abatement During Covid Order
Time Period(s) & for Extension of Reply Briefing & Oral Argument,” in which
she stated that she assumed our order extending the time for filing the reply
brief to May 15, was automatically extended until June 15, 2020, pursuant to
this court’s April 15, 2020 emergency order extending “time periods specified
by the California Rules of Court.” Madden asked us to confirm this extension
and grant an additional extension to July 15 or, preferably, August 15, 2020.
The City opposed Madden’s request, and we denied it.
13
(Centinela Freeman Emergency Medical Associates v. Health Net of
California, Inc. (2016) 1 Cal.5th 994, 1010, quoting Zelig v. County of Los
Angeles (2002) 27 Cal.4th 1112, 1126.) “If the court sustained the demurrer
without leave to amend, as here, we must decide whether there is a
reasonable possibility the plaintiff could cure the defect with an amendment.
([Blank v. Kirwan (1985) 39 Cal.3d 311, 318].) If we find that an amendment
could cure the defect, we conclude that the trial court abused its discretion
and we reverse; if not, no abuse of discretion has occurred. (Ibid.) The
plaintiff has the burden of proving that an amendment would cure the defect.
(Ibid.)” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
I.
Pursuant to the charter adopted by the City and approved by the State
of California in 1929, the “City” refers to the “municipal corporation” known
as the City of Redwood City. (Redwood City Charter, § 1.) The City has “all
the powers heretofore claimed or exercised by the City” and “all the powers
granted to municipal corporations and to cities by the constitution and
general Laws of this State together with all the implied powers necessary to
carry into execution all the powers granted, and shall retain all rights,
interests, powers and privileges heretofore gained by the City or any of its
departments, boards, commissions or instrumentalities,” and “except as
prohibited by the State constitution or restricted by this Charter, the City
shall and may exercise all municipal powers, functions, rights, privileges and
immunities of every name and nature whatsoever.” (Redwood City Charter,
§ 2.) The City’s governing body is the Council, which is composed of seven
members, including the Mayor, who are elected at municipal elections and
subject to recall by the voters. (Redwood City Charter, §§ 6, 9, & 10.)
14
In 1937, the charter was amended to add provisions establishing the
“Port Department” as “a department of the City of Redwood City.” (Redwood
City Charter, § 47.) The “exclusive control and management of the Port
Department” is vested in the Board, which has “the complete and exclusive
power” and the “duty for and on behalf of the City of Redwood City” to
perform specified functions. (Id. § 47f.) The five commissioners are
appointed by the Council and may be removed by a five-sevenths vote of the
Council or recall by the voters. (Id. §§ 47a, 47c.) As relevant here, powers
and duties of the Board include: “(1) To sue and defend in the name of the
City of Redwood City in all actions and proceedings wherein there is involved
any matter within the jurisdiction of the Board”; “(3) To take charge of,
control and supervise the Port of Redwood City, including all the waterfront
properties, and land adjacent thereto, or under water, structures thereon,
and approaches thereto, storage facilities and other facilities, and all rights
and interest belonging thereto, which are now or may hereafter be owned or
possessed by the City of Redwood City”; “(4) To have control and jurisdiction
of the area hereinafter defined as the ‘Port Area,’ and to make and enforce
therein general rules and regulations, to the extent that may be necessary or
requisite for Port purposes or harbor development and in carrying out the
powers elsewhere vested in the Board; provided, however, that with the
approval of the Council, the Board may relinquish to the Council control of
portions of the said area and likewise, upon request of the Board, the Council
may, by ordinance, enlarge the Port Area.” (Id. § 47f.) The “Port Area”
includes “all property fronting on Redwood Creek or its tributary streams, or
on San Francisco Bay, lying within Township 5 South, Range 3 West, Mount
Diablo meridian, which is now, or may hereafter be, within the City of
Redwood City, or owned or possessed by the City of Redwood City, and such
15
other property as may hereafter be placed within said ‘Port Area’ by the City
Council of Redwood City.” (Id. § 50.)
Madden maintains she properly pleaded a section 526a action by
alleging the City’s actions regarding Docktown were ultra vires, violating the
city charter by assuming jurisdiction the charter gave exclusively to the Port.
Madden contends the City lacked authority to settle the Citizens/Hannig
lawsuit rather than referring it to the Port, and the resulting settlement
agreement, therefore, was void from the inception and subject to challenge by
a taxpayer suit. The trial court erred in requiring her to plead facts showing
fraud or collusion, Madden argues, because ultra vires action is an
independent basis for granting relief under section 526a.
A.
Preliminarily, the City (joined by Citizens/Hannig) argues the issue of
the City’s jurisdiction was resolved against Madden in another lawsuit and
further litigation is therefore barred by the doctrine of res judicata. The
other lawsuit is Frambrough v. Redwood City (No. 17CIV04680), filed on
October 12, 2017, in which Madden and other Docktown tenants challenged
administrative decisions regarding relocation benefits under the Docktown
Plan.10 The Docktown Plan’s relocation assistance program allows an
individual to appeal the initial determination of eligibility and level of
assistance and, if dissatisfied with the resulting hearing officer’s decision, file
a petition for writ of administrative mandamus. As relevant here, Madden
challenged the hearing officer’s denial of her claim that the City lacked
jurisdiction to issue the Notices of Eligibility, adopt the Docktown Plan and
10We grant the City’s request for judicial notice of documents filed in
this and other related cases. (Evid. Code, § 452, subd. (d).)
16
conduct an appeal. The trial court entered judgment in favor of the City on
August 1, 2019, and no appeal was taken.
“Res judicata, or claim preclusion, prevents relitigation of the same
cause of action in a second suit between the same parties or parties in privity
with them.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.)
“Claim preclusion applies only when ‘a second suit involves (1) the same
cause of action (2) between the same parties [or their privies] (3) after a final
judgment on the merits in the first suit.’ ” (Samara v. Matar (2018) 5 Cal.5th
322, 323, 327 quoting DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813.)
“ ‘ “The rule is based upon the sound public policy of limiting litigation by
preventing a party who has had one fair trial on an issue from again drawing
it into controversy.” (Bernhard v. Bank of America (1942) 19 Cal.2d 807,
811.)’ ” (Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th
1234, 1245, quoting Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1619–
1620.)
The issue of the City’s jurisdiction to evict Madden pursuant to the
Docktown Plan was not decided in case No. 17CIV004680 expressly because
the trial court found the jurisdiction issue had been decided in the present
case, in which a different judge had denied a preliminary injunction and
sustained demurrers without leave to amend after finding the City “had
jurisdiction to act.”11 The trial court in case No. 17CIV004680 noted that the
hearing officer had refused to take evidence or adjudicate the jurisdiction
issue; the petitioners had admitted it was raised in the administrative
11 As described by the trial court in case No. 17CIV00316, the
petitioners in that case claimed “ ‘the City does not have jurisdiction to
displace them from Docktown because their vessels are not on property
controlled by the Council of Redwood City [as] such control being in the
independent Port Department by charter.’ ”
17
proceeding to “exhaust administrative remedies” and “demonstrate futility”;
and Madden’s argument that the court should stay case No. 17CIV004680
“pending determination on appeal of the ‘jurisdiction’ case” “reinforce[ed] the
fact that this is a duplicative or repetitive claim here, that has already been
adjudicated elsewhere.”
The City correctly maintains that res judicata bars relitigation “not
only of issues that were actually litigated in the prior proceeding, but also
issues that could have been litigated in that proceeding” (Zevnik v. Superior
Court (2008) 159 Cal.App.4th 76, 82), including claims abandoned in the
earlier case (Gates v. Superior Court (1986) 178 Cal.App.3d 301, 310 [claims
abandoned by not resolving in settlement agreement]), and that res judicata
may be raised on appeal when the prior judgment becomes final after the
issue could have been raised in the trial court (Saavedra v. Orange County
Consolidated Transportation etc. Agency (1992) 11 Cal.App.4th 824, 829).
But these points do not help the City. Even assuming the two cases
involve the same cause of action and parties, the court in case
No. 17CIV004680 refused to address the issue of the City’s jurisdiction over
Docktown because that issue had been decided in the present case
(No. 17CIV00316), which was then pending appeal. Appellant raised the
jurisdiction issue in case No. 17CIV004680 and did not abandon it. The City
fails to explain how an issue that was raised and was not abandoned but was
specifically left unaddressed by the court because it had been decided in
another case that was on appeal can operate to bar consideration of the issue
in the appeal to which the court deferred.
B.
Section 526a “authorizes actions by a resident taxpayer against officers
of a county, town, city, or city and county to obtain an injunction restraining
18
and preventing the illegal expenditure of public funds.” (Blair v. Pitchess
(1971) 5 Cal.3d 258, 267.) Section 526a “is properly used where ‘some illegal
expenditure or injury to the public fisc is occurring or will occur.’ ” (Humane
Society of the United States v. State Bd. of Equalization (2007) 152
Cal.App.4th 349, 361, quoting Waste Management of Alameda County, Inc. v.
County of Alameda (2000) 79 Cal.App.4th 1223, 1240.) “[A] taxpayer’s action
may not be maintained where the challenged government conduct is legal.”
(Lyons v. Santa Barbara County Sheriff’s Office (2014) 231 Cal.App.4th 1499,
1503; Humane Society of the United States, at p. 361.) “To invoke taxpayer
standing . . . the challenged governmental conduct must be illegal (Humane
Society of the United States, . . . at p. 361) or must constitute waste, ‘ “a
useless expenditure . . . of public funds” that is incapable of achieving the
ostensible goal.’ ” (Thompson v. City of Petaluma (2014) 231 Cal.App.4th 101,
105–106, quoting Chiatello v. City and County of San Francisco (2010) 189
Cal.App.4th 472, 482.) “Waste” may also consist of “outright fraud,
corruption, or collusion.” (Chiatello, at p. 482.)
Madden has not alleged that the City lacked authority to expend funds
to settle the Citizens/Hannig lawsuit or to bring Docktown into compliance
with the public trust doctrine and policies of the Commission, but rather that
the wrong municipal entity—the Council rather than the Port—took these
actions. There is no allegation that the City caused funds to be spent for an
illegal purpose, such as to enforce an illegal statute (Blair v. Pitchess, supra,
5 Cal.3d at pp. 268–269) or engage in practices contrary to statutory
requirements (County of Santa Clara v. Superior Court (2009) 171
Cal.App.4th 119, 129 [challenge to practices relating to requests for public
records].)
19
As all iterations of the complaints in this case have alleged, Docktown
is located within an area granted by the State of California to the City in
trust for the people of the state. (Stats. 1945, ch. 1359; Stats. 1954., ch. 34.)
That grant was to “the City of Redwood City, a municipal corporation of the
State of California.” (Stats. 1945, ch. 1359; Stats. 1954, ch. 34.) Pursuant to
state law, “[g]ranted public trust lands remain subject to the supervision of
the state and the state retains its duty to protect the public interest in
granted public trust lands.” (Pub. Resources Code, § 6009.1, subd. (a).) The
trustee of granted public trust lands has “[t]he duty to not delegate to others
the performance of acts that the trustee can reasonably be required to
perform and to not transfer the administration of the trust to a cotrustee. If
a trustee has properly delegated a matter to an agent, the trustee has a duty
to exercise direct supervision over the performance of the delegated matter.”
(Pub. Resources Code, § 6009.1, subd. (c)(13).)
As described above, the Commission informed the City that the
residential use in Docktown violated the terms of the granting statutes and
was inconsistent with the public trust doctrine, and, with one exception, the
complaints in this case have expressly alleged that the Docktown Plan
required the City to bring Docktown into “conformance” with the policies of
the Commission.12
In other words, the City, as trustee for the public lands granted by the
state, adopted a plan to rectify its noncompliance with the terms of that grant
as explicated by the Commission. Under section 6009.1, subdivision (c)(13),
the City could not delegate its duties as trustee except where it retained
12 The exception is the last proposed fifth amended complaint Madden
sought leave to file on December 20, 2018, which did not contain this
allegation but, similarly to some of the prior amended complaints, described
the Commission as “driving the demand to clear Docktown of liveaboards.”
20
direct supervision over the delegated matter. The trial court held, therefore,
that the City’s actions in settling the Citizens/Hannig lawsuit and adopting
the Docktown Plan were within the City’s authority because any delegation of
jurisdiction to the Port would either be preempted by state law or subject to
the City’s direct supervision. A state law on a matter of statewide concern
prevails over conflicting provisions of city charter. (Johnson v. Bradley (1992)
4 Cal.4th 389, 399–400; City of Huntington Beach v. Becerra (2020) 44
Cal.App.5th 243, 271, 273, 277.) No discussion is necessary to establish that
the conditions placed by the Legislature on public trust land granted by the
state for the benefit of “all of the people of this state” (Pub. Resources Code,
§ 6009.1, subd. (b)) are a matter of statewide concern.
Madden attempted to avoid the trial court’s conclusion by alleging that
the Port “is” the City—an independent body, co-equal to the Council, with
exclusive jurisdiction over specified areas including the public trust land
grant—and that, by virtue of the charter, the Port was the trustee of the
public trust land. Beginning with her third amended complaint, Madden
alleged the Port “ ‘is’ the City of Redwood City” and “acts ‘as the City of
Redwood City, by and through its Port Department.’ ” Subsequent
complaints alleged the City is a single entity that acts through two different
bodies: “City – ex rel. its Council, and/or ex rel. its Port – is a municipal
entity with the capacity to sue or be sued. It is a charter city under the laws
of California.” Whereas the first through third amended complaints had
named “City of Redwood City” as defendant, Madden’s subsequent
complaints named “City of Redwood City ex rel. (by and through) its Council”
and, separately, “City of Redwood City ex rel. its Port Department and Board
of Port Commissioners.” These complaints allege that the Council and the
Port are each “co-equal bodies that govern[] the City,” created by the charter
21
“at its inception in 1929,” both of which “ ‘are’ ‘Redwood City,’ ” and that each
“ ‘is’ the City of Redwood City for actions taken within its charter authority
and jurisdiction.” The second proposed fifth amended complaint describes the
Council and Port as “co-equal ‘City’ branches of government.” In her fourth
amended complaint (as well as in the initially proposed fourth and fifth
amended complaints), Madden expressly alleged the Port “was always trustee
by virtue of the City’s 1929 Charter.”
These allegations, however, are factually inconsistent with earlier
complaints in this case. The first, first amended and second amended
complaints allege that the public trust land was granted to the “City as
trustee” and then describe the Port as a distinct entity from “the City,”
alleging that the charter gives the Port exclusive control over the Port Area
and that “City is without jurisdiction to enter into agreements or litigation
within the Port Area” and “the City is without jurisdiction to enter into either
the [Settlement] Agreement or the [Docktown] Plan.” The second amended
complaint—the first one filed with Madden as a plaintiff—specifically alleged
that the Port “is required to report directly to the City per the city charter.”
This “direct report” allegation is clearly at odds with subsequent
descriptions of the Port as a coequal governing body with no obligation to the
Council other than to annually inform the Council and public of the state of
its affairs. The fourth amended complaint directly contradicted the direct
report allegation by alleging that the Port “is not overseen by the City
Council or City Manager,” an allegation also included in the third amended
complaint and proposed fourth amended complaint and the first of the
proposed fifth amended complaints. The second proposed fifth amended
complaint alleged the Port “does not report to, nor answer to, the City.” And,
beginning with the third amended complaint, Madden alleged that the only
22
permissible communications between the Council and the Port are the Port’s
annual “informational report” to the Council and Council members’ public
comments to the Board.13
Citizens for the Public Trust argues we should reject Madden’s
allegation that the Port is the trustee of the public trust land granted to the
City under the sham pleading doctrine. “[U]nder the sham pleading doctrine,
the trial court may disregard amendments that omit harmful allegations in
the original complaint or add allegations inconsistent with it.” (Falcon v.
Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1281.) “Plaintiffs
‘ “ ‘may not discard factual allegations of a prior complaint, or avoid them by
contradictory averments, in a superseding, amended pleading,’ ” ’ and ‘must
explain inconsistencies between the prior and proposed pleadings.’ ” (Id. at
pp. 1281–1282, quoting Oakland Raiders v. National Football League (2005)
131 Cal.App.4th 621, 653.) Madden cannot allege the “City,” through the
Council, is trustee and supervises the Port, then subsequently allege the Port
is a co-equal branch of government, does not report to the Council, and was
always the trustee, without providing an adequate explanation for her
changed factual allegations, which she has never done. (American
Advertising & Sales Co. v. Mid-Western Transport (1984) 152 Cal.App.3d 875,
13The limitation on communications was not expressly alleged as a
prohibition until the last proposed fifth amended complaint, which alleged
that the Council “is prohibited by Charter, akin to a Brown Act enactment,
from speaking to the Port Board Commissioners and their professional staff,
except in public comments.” The prior versions of the complaint alleged, “The
Port makes an annual informational report to the Council once a year,
council members are able to speak to the Port Commissioners in public
comments, and the Port Department: (a) houses and retains all records and
maps pertaining to the Port Area, including all granted tidelands; and (b)
annually reports to the State Lands Commission the status of the granted
lands.”
23
879 [“a proposed amendment which contradicts allegations in an earlier
pleading will not be allowed in the absence of ‘very satisfactory evidence’
upon which it is ‘clearly shown that the earlier pleading is the result of
mistake or inadvertence’ ”].)
Moreover, as we have said, the public trust lands were granted to “the
City of Redwood City, a municipal corporation.” Pursuant to the charter, the
governing body of the “municipal corporation” known as Redwood City is the
Council. The Port is “a department of the City of Redwood City,” and its
Board members are appointed, and may be removed, by the Council. These
provisions appear to controvert the allegation that the Port, to the exclusion
of the Council, is the trustee of the public trust lands.
In any event, “ ‘[t]axpayer suits are authorized only if the government
body has a duty to act and has refused to do so. If it has discretion and
chooses not to act, the courts may not interfere with that decision.’ . . .
[Citation.] . . . [Citation.] ‘It has long been held that a government entity’s
decision whether to pursue a legal claim involves the sort of discretion that
falls outside the parameters of waste under section 526a and cannot be
enjoined by mandate.’ ” (San Bernardino County v. Superior Court (2015)
239 Cal.App.4th 679, 686 (San Bernardino County), quoting Daily Journal
Corp. v. County of Los Angeles, supra, 172 Cal.App.4th at pp. 1557–1558.) It
necessarily follows that the decision whether and how to defend against a
lawsuit is discretionary. “[G]enerally speaking, a municipality has the power
to settle and compromise claims in its favor or against it where there is a
bona fide reasonable doubt or dispute as to the validity thereof or the amount
24
due with respect thereto.” (Whitson v. Long Beach (1962) 200 Cal.App.2d
486, 505.)14
The City’s authority to enter into the Citizens/Hannig settlement
agreement fits comfortably within these principles. The City operates the
Docktown Marina, and the Docktown residents’ leases are with the City. The
lawsuit alleged that the City’s operation of Docktown was causing
environmental and financial harm. The conduct plaintiffs alleged included
the City leasing slips at Docktown for residential use in violation of the public
trust doctrine, misappropriating public trust funds, causing dangerous living
conditions by failing to invest properly in maintenance, contaminating public
trust lands, “white-washing” a report to the county concerning contamination
at Docktown, and allowing homeless persons to reside on public trust
property near Docktown, thereby making navigation through a portion of the
public trust lands unsafe and impractical. The orders sought by the plaintiffs
were directed at, and would require, conduct by the City: compelling the City
to account separately for revenue and expenses connected to the public trust
land underlying Docktown and to cease using revenue generated from leasing
public trust lands for uses inconsistent with the public trust doctrine,
14 Citing “Dept. 28 Orders & n. 9,” Madden asserts that the trial court
erroneously relied on San Bernardino County, supra, 239 Cal.App.4th 679and Daily Journal Corp. v. County of Los Angeles, supra, 172 Cal.App.4th
1550 “for the proposition that an entity without jurisdiction may assume it
anyway and exercise discretion on behalf of the entity that does have sole and
exclusive jurisdiction.” Neither the trial court nor the cited cases said any
such thing. Madden’s characterization is simply an argument as to what she
believes the City did in the present case. Contrary to Madden’s portrayal, the
trial court did not fail to comprehend her argument that the City lacked
jurisdiction; it rejected the argument based on the City’s role as trustee under
the public lands grant and cases such as San Bernardino County holding
litigation decisions to be discretionary acts outside the scope of section 526a
suits.
25
imposing a constructive trust over the City’s general fund, and requiring the
City to take actions necessary to allow reasonably safe use of a pedestrian
freeway underpass adjacent to Docktown.
Since the City’s decision to settle the lawsuit, and its negotiation of the
terms of that settlement, were matters of discretion outside the scope of a
taxpayer action under section 526a, Madden could prevail only by showing
“fraud or collusion on the part of the decision makers.” (San Bernardino
County, supra, 239 Cal.App.4th at pp. 687–688.) “[S]tatutory causes of action
must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court
(2004) 32 Cal.4th 771, 790.) And, due to the presumption that official duty
has been regularly performed (Evid. Code, § 664), a plaintiff must allege “how
and in exactly what manner the alleged facts rebut” the presumption.
(Lavine v. Jessup (1958) 161 Cal.App.2d 59, 67.) In this context, allegations
of “fraud, conspiracy, or other acts of misfeasance or of malfeasance” must be
pled “precisely” (ibid.) or “specifically” (Lagiss v. County of Contra Costa
(1963) 223 Cal.App.2d 77, 92). “A cause of action for waste of public funds
cannot prevail if based upon innuendo and legal conclusions. To present such
a case successfully, specific facts alleging a waste of public funds must be
supported in the record. (Hodgeman v. City of San Diego (1942) 53
Cal.App.2d 610, 619.) Otherwise, public officials performing their duties
would be harassed constantly. (City of Ceres v. City of Modesto [(1969)] 274
Cal.App.2d 545, 555.)” (Sagaser v. McCarthy (1986) 176 Cal.App.3d 288,
310–311.) Absent sufficient allegations of fact, “courts could risk trespassing
into the domain of legislative or executive discretion.” 15
15Madden relies upon Quelimane Co. v. Stewart Title Guaranty Co.
(1998) 19 Cal.4th 26, 47–48, to argue that specificity in pleading is not
required because she is alleging collusion, not fraud. That case, referring to
26
Madden’s fourth amended complaint contained conclusory allegations
that unspecified Council members and Port “members” colluded with Hannig
to have Hannig sue the City in order to have the City assert jurisdiction over
Docktown and make a $1.5 million payment to Hannig, but failed to allege
specific facts showing collusion by the Council members who voted to enter
the settlement agreement and adopt the Docktown Plan. The proposed fifth
amended complaint alleged only that the Council members who adopted the
Docktown Plan were aware they lacked jurisdiction and the Port had
fraud as “the only remaining cause of action in which specific pleading is
required to enable the court to determine on the basis of the pleadings alone
whether a foundation existed for the charge,” held general allegations of
agreement were sufficient to state a cause of action for conspiracy in restraint
of trade. (Id. at p. 47.) The case did not consider pleading requirements in
the context of a taxpayer suit alleging fraud or collusion to contest an
otherwise unreviewable exercise of a municipality’s discretion and therefore
does not cause us to depart from the analysis of more on-point authorities.
Gilbane Building Co. v. Super. Ct. (San Diegans for Open Government
(2014) 223 Cal.App.4th 1527 (Gilbane), which Madden cites for the rule that
“illegal contracts may be voided by taxpayer 526a suits,” does not assist her.
Madden notes the Gilbane court’s statement that “[w]hether the contracts are
void is not a matter within the District’s discretion.” (Id. at p. 1533.) The
taxpayer suit in that case challenged contracts made by a school district as
violating Government Code 1090, which prohibits members of a district from
having a financial interest in contracts made in their official capacity. (Id. at
pp. 1530, 1532.) A contract made in violation of Government Code
section 1090 is void. (Gilbane, at p. 1532) Gilbane noted that “[i]f the
governing body has discretion in the matter, the taxpayer may not interfere”
(ibid.), but in claiming violations of Government Code 1090, the taxpayers
were “not seeking to usurp the District’s discretion in managing its affairs.
Rather, if the allegations in [the plaintiffs’] complaint are true, the District
expended funds illegally and the subject contracts are void, not merely
voidable. Whether the contracts are void is not a matter within the District’s
discretion.” (Gilbane, at p. 1533.) Here, unlike financial interest—which, if
true, necessarily voids the governmental body’s contract—settlement of a
lawsuit against the City was a matter within the City’s discretion.
27
jurisdiction, and acted “in concert to enter into an illegal act under the City
charter in violation of such jurisdiction.”
Nor has Madden alleged any facts showing the actions the City agreed
to undertake in the settlement and Docktown Plan were improper. Instead,
the complaints acknowledge the City was responding to the Commission’s
directive that the residential use at Docktown violated the public trust
doctrine. Madden did not allege the Port would not have complied with the
Commission’s policy if it had acted in place of the Council, or that it could
have acted in place of the Council, given that the City was in fact operating
Docktown and the lawsuit sought, among other things, an accounting from
and other orders relating to the City’s general fund. Madden’s assertions in
her brief on appeal as to how the Port would have handled the
Citizens/Hannig lawsuit differently are entirely speculative.
In sum, we find no fault in the trial court’s conclusion that Madden
failed to state a viable section 526a claim against the City despite her
numerous attempts to do so. The trial court did not abuse its discretion in
sustaining the demurrers without further leave to amend.
II.
Madden argues the trial court erred in striking the fourth amended
complaint as to the Commission, as the court had directed her to name and
serve the Commission, the Commission had been named as a defendant since
former counsel converted a Doe defendant (in July 2017), and the fourth
amended complaint sufficiently alleged the Commission participated in the
ultra vires conduct of the City by sending the City the Vogel letter and
representing it as an opinion of the Attorney General.
Madden’s first point is based on the court having ruled that the
Commission was an indispensable party with respect to the cause of action
28
for declaratory relief in the first amended complaint. That cause of action
sought adjudication of Docktown residents’ rights with respect to the
Commission’s interpretation of the public trust doctrine, and the court held
no judgment would be enforceable against the Commission unless it was a
party to the action. It does not follow, however, that the Commission
necessarily remained an indispensable party. The fourth amended complaint
did not seek declaratory relief against the Commission. The primary relief
sought was for the court to set aside the settlement agreement and Docktown
Plan and make various orders concerning the respective jurisdiction of the
Council and the Port. The only relief sought as to the Commission was for
the court to clarify, or order the Commission and Attorney General to clarify,
that the Vogel letter was not an official opinion of the Attorney General.
Whether this was sufficient to make the Commission an indispensable party
is a separate question from that presented to the court in the first amended
complaint.
Madden’s argument that the Commission had been named a defendant
since July 2017 is incorrect. As earlier described, former counsel for SFBM
and Madden added the Commission in place of a Doe defendant in the second
amended complaint. When Madden filed the third amended complaint,
however, she did not name the Commission as a defendant. “It has long been
the rule that an amended complaint that omits defendants named in the
original complaint operates as a dismissal as to them.” (Fireman’s Fund Ins.
Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1142.) In
apparent accordance with this rule, Madden then sought leave to file a fourth
amended complaint adding the Commission and the Attorney General as
defendants; Madden stated, among other things, that she did not agree the
Commission was a necessary or indispensable party and “regretfully names
29
and serves [the Commission] solely under Court order.” After the court
denied leave to file this proposed complaint, Madden filed her fourth
amended complaint, which again stated that it “adds parties and causes of
action based on prior rulings of the court, without limitation the Cal. State
Lands Commission . . . .” The proposed and filed fourth amended complaints
thus acknowledged that the Commission was not a named defendant under
the third amended complaint, as does Madden’s brief in this court, which
states that the fourth amended complaint “added parties the court
contemplated.”
Madden argues that the fourth amended complaint sufficiently alleged
the Commission “contributed to the ultra vires conduct (indeed bringing it
about) by sending the ‘Vogel Letter’ and characterizing it as an AG Opinion,
an unlawful act.” She then emphasizes the significance of the Vogel letter as
the City’s impetus and justification for entering the settlement agreement
and adopting the Docktown Plan. She maintains the letter is “invalid” and
“legally impermissible,” and was mischaracterized by the Commission as an
official opinion of the Attorney General (see Gov. Code, § 12519) entitled to
“great weight and deference” when in fact it was merely an informal legal
advice of counsel letter.
Madden does not explain how her allegations stated a cause of action
against the Commission. The cause of action alleged against all the
defendants was “to set aside agreements for violation of City charter; illegal
contract; collusion.” The claims of charter violation and illegal contract
pertain only to the City and Hannig parties, not the Commission. The trial
court found the fourth amended complaint “failed to articulate a viable CCP
§ 526a collusion claim” against the Commission. Madden’s contention in her
appellate brief that the Commission “participated in procuring” or
30
“contributed to” the alleged ultra vires act of the City is not supported by any
reference to factual allegations of collusion engaged in by the Commission.
“ ‘ “Collusion has been variously defined as (1) ‘a deceitful agreement or
compact between two or more persons, for the one party to bring an action
against the other for some evil purpose, as to defraud a third party of his
right’; (2) ‘a secret arrangement between two or more persons, whose
interests are apparently conflicting, to make use of the forms and proceedings
of law in order to defraud a third person, or to obtain that which justice
would not give them, by deceiving a court or its officers’; and (3) ‘a secret
combination, conspiracy, or concert of action between two or more persons for
fraudulent or deceitful purposes.’ [Citation.]” [Citation.]’ ” (Andrade v.
Jennings (1997) 54 Cal.App.4th 307, 327, quoting Span, Inc. v. Associated
Internat. Ins. Co. (1991) 227 Cal.App.3d 463, 484.)
The only factual allegations concerning the Commission in the fourth
amended complaint relate to the Vogel letter: Madden alleged that
mischaracterization of the letter as “an ‘official’ Attorney General opinion”
“drove the Hannig suit and Settlement and is the foundational error on which
all of the preceedings and proceedings have evolved.”16 The only alleged act
of mischaracterization, however, is that “[c]ounsel for Citizens [for the Public
Trust] in the present case represented to this Court at Case Management
(Foiles, J.) in its CMC Statement that the Vogel Letter is an ‘official’ Attorney
General opinion.” The allegations concerning the Commission and its staff
16As the Commission points out, the cover letter referenced in the
fourth amended complaint, by which the Commission transmitted the letter
to the City, referred to “an opinion letter from the Attorney General’s office to
the Commission,” not to an “official,” “formal” or “published” Attorney
General opinion.
31
are that they refused to comply with Madden’s requests to correct
mischaracterization of the letter.
Putting aside the absence of factual allegations as to how and when
Commission staff mischaracterized the letter, as well as the question whether
the alleged mischaracterization can be viewed as “illegal conduct,” as Madden
claims, the fourth amendment contains no allegations that the Commission
entered into a deceitful or secret agreement with the City or Citizens/Hannig
for fraudulent or deceitful purposes. The collusion Madden alleged was
between “Citizens [for the Public Trust], the developer of the property across
from Docktown, former or current elected and/or appointed officials, agents,
personnel and representatives of the City, and other monied interests
(current landowners, prior and current potential developers of the Docktown
uplands, and those named as potential DOE conversion defendants), all of
whom colluded to bring about the lawsuit by Citizens [for the Public Trust],
and to settle it without answering” and “award $1.5 million to Hannig, all to
set up the closure of Docktown and enrich Hannig and the associated
developer and owner monied interests and Hannig’s life partner,” and to
obtain an underpass the developer had not been able to secure. Madden
alleged that the Vogel letter was “part and parcel of the collusion of all
parties to set up the illegal act of Council to obtain unlawful settlements” and
the refusal of Commission staff members to comply with Madden’s requests
to recharacterize and clarify the nature of the letter “support[ed] the
allegations of collusion.” She did not, however, allege any facts showing that
the Commission’s characterization of the letter or responses to Madden’s
32
requests involved concerted conduct that was secret, deceitful or undertaken
for fraudulent purposes.17
We find no error in the trial court’s ruling that Madden failed to state a
viable claim against the Commission.18
III.
Madden’s remaining contentions require little discussion. Madden
contends the trial court erred in dismissing SFBM for failure to properly
allege taxpayer standing, but she cannot assert this contention on SFBM’s
behalf. SFBM did not file a notice of appeal and is not a party to this appeal.
“An appellant cannot urge errors that affect only another party who does not
appeal.” (In re S.A. (2010) 182 Cal.App.4th 1128, 1134.)19
17 Madden made clear at the hearing on the Commission’s motion to
strike the fourth amended complaint that she never intended to state a
section 526a claim against the Commission and in fact never wanted to sue
the Commission, but did so only in response to the court’s orders and with
respect to her claims that “liveaboards are not illegal.” Madden told the
court, “I actually don’t really have a problem with the state lands commission
not being in this case, but I want to make it crystal clear that I'm not the one
who had a lawsuit strategy to bring them in. . . . I don’t have a problem
dismissing the state lands commission . . . I never wanted to sue them. I
don’t think they’re necessary or indispensable. . . .”
18 As the Commission points out, Madden has not challenged the trial
court’s order denying her motion for leave to file a fifth amended complaint as
to the Commission. Accordingly, she has forfeited any challenge to that
order. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785.)
19 In a petition for writ of mandate filed on February 27, 2018, which
we denied, Madden challenged the dismissal of SFBM and other issues,
stating that she was representing SFBM, as well as herself. To our
knowledge, however, the only substitution of attorney form in the record is
for Madden alone, substituting herself in propria persona in place of the
attorney who had previously represented her and SFBM. Moreover, Madden
was suspended from practicing law as of December 1, 2019,and therefore
cannot represent SFBM unless and until she becomes eligible to practice law.
33
Given our conclusion that Madden failed to properly state her claims
against the City and the Commission in this case, we need not consider her
contention that the trial court erred in denying her motion to consolidate it
with the unlawful detainer action or denied her right to a jury trial.20
DISPOSITION
The judgment is affirmed.
Costs to respondents.
20 Commission joined the other respondents’ arguments.
34
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
Madden v. City of Redwood City et al. (A156288)
35