Filed 8/17/15

                            CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



SAN BERNARDINO COUNTY et al.,

        Petitioners,                               E058359

v.                                                 (Super.Ct.No. CIVDS1201251)

THE SUPERIOR COURT OF SAN                          OPINION
BERNARDINO COUNTY,

        Respondent;

THE INLAND OVERSIGHT
COMMITTEE et al.,

        Real Parties in Interest.



        ORIGINAL PROCEEDINGS; petition for writ of mandate. David Cohn, Judge.

Petition granted.

        Theodora Oringher, Todd C. Theodora and Roy Z. Silva; Jean-Rene Basle, County

Counsel, and Mitchell L. Norton, Deputy County Counsel, for Petitioners.

        Briggs Law Corporation, Cory J. Briggs, Mekaela M. Gladden and Anthony N.

Kim; Leibold McClendon & Mann and John G. McClendon, for Real Parties in Interest.



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         Real parties in interest The Inland Oversight Committee (IOC) and Citizens for

Responsible Equitable Environmental Development (CREED and, together with IOC,

plaintiffs), are taxpayer organizations that have brought suit challenging a November

2006 settlement agreement between petitioners County of San Bernardino and San

Bernardino County Flood Control District (County) and defendant Colonies Partners,

L.P. (Colonies and, together with County, defendants), pursuant to which County paid

Colonies $102 million. Plaintiffs seek to have the settlement agreement declared void

under state law governing conflicts of interests of government officials, and to force

Colonies to disgorge any money already paid pursuant to the agreement.

         Now pending before this court are Colonies’ appeal of the denial of its special

motion to strike the complaint as a strategic lawsuit against public participation (anti-

SLAPP motion) pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP

statute) and two writ petitions, one brought by County, the other by Colonies, regarding

the denial of their respective demurrers. This opinion addresses only County’s writ

petition; we rule on Colonies’ appeal and writ petition in separate opinions, issued

contemporaneously herewith.

         In its petition, County argues that the respondent trial court erred by overruling

County’s demurrer, because plaintiffs lack standing. For the reasons stated below, we

agree.




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                   I. FACTS AND PROCEDURAL BACKGROUND1

       The November 2006 settlement agreement between County and Colonies,

pursuant to which County paid Colonies $102 million, resolved a lawsuit brought by

Colonies against County alleging that the County had taken 67 acres of Colonies’ land for

use as part of a regional flood-control facility. That settlement was incorporated into a

stipulated judgment, filed January 23, 2007.2

       County satisfied its obligation under the settlement agreement and stipulated

judgment by issuing judgment obligation bonds, pursuant to a resolution by the San

Bernardino County Board of Supervisors. Subsequently, County brought a validation

action, and obtained a judgment, dated March 29, 2007, declaring the settlement

agreement between Colonies and the County, the inverse condemnation judgment, and

the bonds issued to satisfy the inverse condemnation judgment to be “valid, legal and

binding obligations of [County].”3

       In 2010, the San Bernardino County District Attorney’s Office filed a felony

indictment accusing William Postmus, a former county supervisor, of (among other


       1 The following factual and procedural summary of the case is taken verbatim
from our opinion in San Bernardino County et al. v. The Superior Court of San
Bernardino County; The Inland Oversight Committee et al., No. E058020, regarding
Colonies’ appeal of the denial of its anti-SLAPP motion.

       2  Adopting the practice of the parties in their briefing, we will sometimes refer to
this stipulated judgment as the “inverse condemnation judgment.”

       3Again adopting the practice of the parties in their briefing, we will refer to the
judgment issued in the validation action as the “validation judgment.”


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things) receiving bribes—disguised as contributions to political action committees

(PACs)—from Colonies in exchange for his vote approving the settlement agreement. In

March 2011, Postmus pleaded guilty to various bribery-related charges.

       In February 2012, plaintiffs filed the present action, and in April 2012, they filed

the operative first amended complaint (complaint). The complaint asserts a single cause

of action for violation of Government Code section 1090. Plaintiffs seek to have the

settlement agreement between Colonies and County declared void as in violation of

Government Code section 1090 because of Postmus’s personal financial interest; to

require Colonies to disgorge any monies received under the agreement; and to enjoin any

transfer of monies Colonies received under the agreement.

       In May 2012, Colonies filed its demurrer to the complaint, and in June 2012, filed

its anti-SLAPP motion. The demurrer first came on for hearing in June 2012, but the

matter was continued pending supplemental briefing. Both Colonies’ demurrer and its

anti-SLAPP motion were set for hearing on September 19, 2012; the trial court overruled

Colonies’ demurrer, but continued the hearing of Colonies’ anti-SLAPP motion.4 On

October 15, 2012, the County filed its demurrer. Both Colonies’ anti-SLAPP motion and

County’s demurrer were heard on December 13, 2012; the trial court overruled the

demurrer and denied the anti-SLAPP motion.




       4 On the same date, the trial court also ruled on a motion to strike certain language
from the complaint; that ruling is not at issue here.


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                                      II. DISCUSSION

       In opposition to County’s petition, plaintiffs advance three alternative theories as

to why they have standing, County’s arguments to the contrary notwithstanding. They

contend that they have taxpayer standing under either Code of Civil Procedure section

526a or the common law, and they also assert a right to sue “directly under Government

Code Section 1090.”

       “The standard of review for an order overruling a demurrer is de novo.”

(Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 182.) Although the matter

arrives in this court “by the unusual path of a writ petition . . . the ordinary standards of

demurrer review still apply.” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730,

747.) Applying those standards, we reject each of plaintiffs’ theories of standing, and

grant County’s petition.

A. Plaintiffs Do Not Have Standing to Bring a Claim on Behalf of County Under

Government Code Section 1090.

       Government Code section 1090 forbids public officers from being financially

interested in any contract made by them in their official capacity. (Gov. Code, § 1090,

subd. (a).) Government Code section 1092 provides that “[e]very contract made in

violation of any of the provisions of Section 1090 may be avoided at the instance of any

party except the officer interested therein.” (Gov. Code, § 1092, subd. (a), italics added.)

Plaintiffs, however, are not parties to the contract at issue, the settlement agreement

between Colonies and the County. Nothing in the plain language of either section 1090


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or section 1092 grants nonparties to the contract, such as plaintiffs, the right to sue on

behalf of a public entity that may bring a claim as provided in section 1092, but has not

done so. Indeed, the Legislature’s choice of the word “party” in section 1092—as

opposed to, say, “person”—suggests the Legislature intended only parties to the contract

at issue normally to have the right to sue to avoid contracts made in violation of section

1090.

        Plaintiffs nevertheless assert a right to sue “directly under Government Code

Section 1090 in order to have the $102 million settlement agreement declared void.” The

case law that they rely on, however, does not support their assertion. For example, Terry

v. Bender (1956) 143 Cal.App.2d 198, addresses an action brought explicitly under Code

of Civil Procedure section 526a. (Terry, supra, at p. 204.) Nothing in the Terry opinion

is reasonably interpreted to contemplate Government Code section 1090 as an

independent source of the plaintiffs’ standing, though that statute is discussed as a piece

of the substantive law governing the activities of public officials. (See Terry, supra, at p.

207 [citing Gov. Code, §§ 1090-1092 in summarizing substantive law regarding conflicts

of interests of public officials].)

        Similarly, in Gilbane Building Co.v. Superior Court (2014) 223 Cal.App.4th 1527,

the Court of Appeal states that “[t]axpayers may sue under [Government Code] section

1090 in order to have improper contracts declared void.” (Id. at p. 1532.) In context,

however, this statement is best understood to refer to the circumstance that taxpayers who

otherwise have standing under Code of Civil Procedure section 526a or the common law


                                              6
may assert a claim that a contract is in violation of Government Code section 1090. The

quoted language follows the Court of Appeal’s ruling that the plaintiff organization had

associational standing under Code of Civil Procedure section 526a, based on its status as

a representative organization or association of members who would have had standing to

bring the action as individuals. (Gilbane Building Co., supra, at p. 1531) It is not

reasonably interpreted to suggest that Government Code section 1090 grants a cause of

action to any taxpayer, as plaintiffs would have it.

       Thomson v. Call (1985) 38 Cal.3d 633 (Thomson) and Finnegan v. Schrader

(2001) 91 Cal.App.4th 572 are each cases in which taxpayers brought suit claiming

violations of Government Code section 1090 as the substantive base of their claims.

(Thomson, supra, at pp. 638-639; Finnegan, supra, at p. 579.) Neither case, however,

contains any discussion of standing. Neither case, therefore, supports plaintiffs’ assertion

of a right to sue “directly under Government Code Section 1090.”5 (Murphy v. City of

Alameda (1992) 11 Cal.App.4th 906, 914 [“It is fundamental that cases are not authority

for propositions not considered and decided.”].)


       5  At oral argument, plaintiffs directed our attention to a recent case, Davis v.
Fresno Unified School District (2015) 237 Cal.App.4th 261, which contains a footnote
accepting without detailed analysis the proposition that “either the public agency or a
taxpayer may seek relief for violation of [Government Code] section 1090.” (Id. at p.
297, fn. 20.) Again, however, the issue of standing was not before the court, as it was not
raised by the parties. (See ibid. [noting that the defendants’ demurrer was not brought on
the basis of standing].) To the extent this dictum may be read as treating Government
Code section 1090 as an independent source of standing, as plaintiffs urge, it relies on the
same reading of Thomson that we reject in this opinion. We do not find that
interpretation persuasive and decline to adopt it.


                                              7
       In short, plaintiffs have identified cases in which taxpayers have successfully sued,

claiming violations of Government Code section 1090, even though the taxpayers were

not parties to the contract at issue, and therefore were not provided a cause of action by

Government Code section 1092. Plaintiffs have identified no authority, however,

supporting the proposition that a taxpayer has standing to sue “directly under

Government Code section 1090.” Because we find no support for plaintiffs’ argument in

the relevant statutory language or in case law, we reject it. We turn, therefore, to the

question of whether plaintiffs might have standing under the usual sources of taxpayer

standing, either Code of Civil Procedure section 526a or the common law.

B. Plaintiffs Lack Taxpayer Standing Under Code of Civil Procedure Section 526a

or the Common Law.

       Plaintiffs assert Code of Civil Procedure section 526a or common law taxpayer

standing as alternative grounds for allowing them to proceed with their claim. We

disagree that either section 526a or the common law allows plaintiffs’ claim to survive

demurrer, on the facts as alleged.

       “[Code of Civil Procedure] [s]ection 526a gives citizens standing to challenge

governmental action and is liberally construed to achieve that purpose.” (Daily Journal

Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1557 (Daily Journal).)

Specifically, a suit under section 526a allows the taxpayer to “obtain a judgment,

restraining and preventing any illegal expenditure of, waste of, or injury to, the estate,

funds, or other property of a county, town, city or city and county of the state . . . .”


                                               8
(Code Civ. Proc., § 526a.) Section 526a somewhat broadens the scope of claims that

were permissible to the taxpayer in comparison to the common law, which allows

taxpayers to sue “in his [or her] representative capacity . . . only in cases involving fraud,

collusion, ultra vires, or a failure on the part of the governmental body to perform a duty

specifically enjoined.” (Silver v. City of Los Angeles (1962) 57 Cal.2d 39, 40-41

(Silver).) Although the plain text of section 526a authorizes suits only against “any

officer . . . or any agent, or other person acting in [a government entity’s] behalf” (Code

Civ. Proc., § 526a), case law has recognized that a “cause of action exists to recover from

the person receiving the money illegally paid, independent of any statute, and . . . the

action may be prosecuted by a taxpayer in his name on behalf of the public agency.” 6

(Miller v. McKinnon (1942) 20 Cal.2d 83, 96 (Miller).)

       Nevertheless, under either Code of Civil Procedure section 526a or the common

law, “[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.” (Daily Journal, supra, 172 Cal.App.4th at pp. 1557-1558.)

“It is the general rule that a taxpayer cannot maintain an action in behalf of [a

government entity] to enforce a claim or demand inuring to the [government entity].”

(Elliott v. Superior Court (1960) 180 Cal.App.2d 894, 897.) “It has long been held that a

       6  County has requested we take judicial notice of certain legislative materials
relating to the enactment of Code of Civil Procedure section 526a. These documents are
proper subjects of judicial notice (Evid. Code, §§ 452, 459), and plaintiffs filed no
opposition to County’s request, so the request will be granted. We will not discuss the
noticed materials here, however, because they are not necessary for our analysis.


                                              9
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.” (Daily Journal, supra, at p. 1558.) And because deciding

whether to pursue a legal claim is generally an exercise of discretion, rather than “a duty

specifically enjoined,” the common law too does not normally provide the taxpayer a

cause of action to pursue a legal claim on behalf of the government entity. (Silver, supra,

57 Cal.2d at p. 41.)

       Schaefer v. Berinstein (1956) 140 Cal.App.2d 278 (Schaefer) exemplifies an

exception to the general rule. In Schaefer, a taxpayer brought suit in representative

capacity under the common law, alleging among other things that the defendant city had

failed to instigate legal action relating to certain transactions with private defendants that

the taxpayer contended were made in violation of Government Code section 1090.

(Schaefer, supra, at pp. 291-292.) The court of appeal allowed the lawsuit to proceed,

reversing the judgments on demurrer in favor of many of the defendants, and noting that

the facts alleged showed a “failure of the city council to perform a specifically enjoined

duty”: the city charter included a provision requiring the city council to declare such

transactions void. (Id. at p. 292; see also id. at pp. 287 & fn. 2, 301-302.). Similarly, in

Miller, a former provision of the Political Code made it the “imperative duty” of the

county district attorney to “institute suit, in the name of the county,” in the circumstances

of the case, involving contracts awarded in violation of competitive bidding laws.




                                              10
(Miller, supra, 20 cal.2d at pp. 86-87, 95; see also Daily Journal, supra, 172 Cal.App.4th

at p. 1559, fn. 6 [collecting similar cases].)

       The present case, however, is distinguishable from Schaefer and Miller. Plaintiffs

do not cite any provision of law explicitly requiring the County to pursue any claim it

might have under Government Code sections 1090 and 1092, and we have discovered

none. Section 1092 itself states that a contract made in violation of section 1090 “may be

avoided at the instance of any party . . .” and does not suggest that a public agency that is

party to such a contract must bring any such claim it may have. (Gov. Code, § 1092,

subd. (a), italics added.)

       Plaintiffs argue that “compliance with [Government Code] Section 1090 is a

nondiscretionary duty specifically enjoining [the County] from making the $102 million

settlement agreement in exchange for bribes . . . .”   This argument would be more to the

point if plaintiffs were seeking to enjoin the County from entering into such a settlement

agreement. But that ship has long since sailed. The issue now is the County’s decision

(or lack thereof) with respect to bringing suit on the basis of the alleged violation of

section 1090, and whether this decision is an exercise of discretion or a mandatory duty

that County—so far, at least—has failed to perform. For the reasons stated above, it is an

exercise of discretion.

       To be sure, courts have recognized the necessity of allowing taxpayers to step in

and assert claims that otherwise would be within a government entity’s discretion where

there are allegations of fraud or collusion on the part of the decision-makers. (Osburn v.


                                                 11
Stone (1915) 170 Cal. 480, 482-483 [recognizing “necessity” of allowing taxpayer

standing to bring claim on behalf of “a municipality, whose affairs are in the hands of

hostile trustees or councilmen . . . .”]; Daily Journal, supra, 172 Cal.App.4th at p. 1559.)

There are no allegations of fact in the complaint, however, showing that any present

County official was involved in the alleged bribery scheme leading to Postmus’s guilty

plea, or is otherwise engaged in fraud or collusion.

       In short, County’s demurrer should have been sustained, because the complaint

does not include adequate facts to demonstrate plaintiffs have standing as taxpayers to

assert the claim alleged.

       Plaintiffs indicate in their briefing that they are prepared to amend their complaint

to add allegations regarding current County supervisors, to establish that the current

board’s decision not to bring suit is not a legitimate exercise of discretion. Lack of

sufficient allegations to establish standing, however, is not the only fatal flaw of

plaintiffs’ complaint. For reasons we discuss in our opinion ruling on Colonies’ writ

petition (Colonies Partners, L.P. v. The Superior Court of San Bernardino County; The

Inland Oversight Committee et al, No. E058044), granting plaintiffs leave to amend

would be futile, because plaintiffs’ challenge to the validity of the settlement agreement

between County and Colonies is barred by the effect of the 2007 validation judgment

obtained by County.




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                                        III. DISPOSITION

       The petition for writ of mandate is granted. Let a peremptory writ of mandate

issue, directing the Superior Court of San Bernardino County to vacate its order

overruling petitioner’s demurrer, and to enter a new order sustaining the demurrer

without leave to amend.

       Petitioner is directed to prepare and have the peremptory writ of mandate issued,

copies served, and the original filed with the clerk of this court, together with proof of

service on all parties. Petitioner shall recover its costs, if any.

       CERTIFIED FOR PUBLICATION



                                                                      HOLLENHORST
                                                                               Acting P. J.
We concur:

       MCKINSTER
                                   J.

       MILLER
                                   J.




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