Filed 4/4/14 Keller v. City of Roseville CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----



RICHARD W. KELLER,

                   Plaintiff and Appellant,                                                  C072379

         v.                                                                    (Super. Ct. No. SCV0028715)

CITY OF ROSEVILLE et al.,

                   Defendants and Respondents.


         Richard Keller operates Classic Tow Service, a business that has participated in a
tow rotation program operated by the City of Roseville (City). To enter a newly
instituted lottery for selecting among towing companies, the City required entrants to
ensure their impound yards complied with the City’s zoning laws. An impound yard
complies with the City’s zoning laws if it is (1) located in a zone that allows impound
yards as a matter of right, (2) operated with a conditional use permit in a zone allowing
such use, or (3) on a site for which the impound yard is recognized as a legal
nonconforming use. Keller disagreed with the City’s determinations that several
competitor towing companies were operating their impound yards in compliance with the
zoning laws. To challenge the City’s determinations, Keller filed a petition for writ of


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mandate. The trial court dismissed the petition on grounds Keller lacked standing and the
City’s determinations were supported by substantial evidence.
       On appeal, Keller asserts he has standing to challenge the City’s determinations.
On the merits, he raises several arguments in which he urges us to conclude five tow
companies in the City are operating in violation of the zoning laws.
       We conclude Keller lacks a beneficial interest sufficient to confer standing, the
public interest exception does not apply, and he forfeited the contention that his action
qualifies as a taxpayer suit. For lack of standing, we affirm the trial court’s dismissal of
his petition for writ of mandate.
                                     BACKGROUND
       In his writ petition, Keller alleged he received notice in 2008 that the City’s police
department was instituting a lottery system to select which tow companies would be
allowed to participate in the City’s tow rotation program. In response, Keller asked the
City to investigate whether several of his competitors were operating in violation of
applicable zoning laws. Keller also urged the City’s planning department to eliminate the
lottery program and “just implement the laws already set forth in the Zoning Ordinance
and [the City’s tow service agreement].” The planning department responded that all
towing companies participating in the lottery either had a conditional use permit or were
legal nonconforming within their zones. Keller challenged the planning department’s
determination of compliance by his competitors before the city council. Ultimately, the
city council determined all of the challenged towing companies were operating in
compliance with the zoning laws.
       Keller filed his writ petition in superior court. The petition alleged Keller has
standing on grounds “he has suffered financial harm in the uneven playing field of
competition that he has been forced to play in and will continue to suffer as a result of”
the City’s determinations that competitor towing companies were in compliance with the
City’s zoning codes. Keller asserted he had a “beneficial interest” sufficient to give him

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standing to file the petition based on his status as “a vested property owner in the City.”
Specifically, he challenged the City’s determination of zoning compliant use by Sierra
Hart Towing, Ace in the Hole Towing, Anderson Tow Service, Jake’s Tow Service, and
LJ’s Auto Towing and Repair.
       The City opposed the petition and argued, inter alia, that Keller lacked standing to
pursue his claims.
       The trial court concluded Keller lacked standing to pursue his claims.
Additionally, the court found substantial evidence supported the City’s determination that
all challenged towing businesses were operating impound yards in compliance with the
City’s zoning laws. Keller timely filed a notice of appeal.
                                       DISCUSSION
                                              I
                       The Jurisdictional Requirement of Standing
       Keller contends the trial court erred in finding he lacked sufficient beneficial
interest to confer standing. We are not persuaded.
                                             A.
                                    Beneficial Interest
       As a jurisdictional prerequisite, a petitioner must have standing in order to invoke
the power of a court to grant writ relief. (Waste Management of Alameda County, Inc. v.
County of Alameda (2000) 79 Cal.App.4th 1223, 1232 (Waste Management) disapproved
on another point in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52
Cal.4th 155, 167-168, 170 & fn. 5 (Save the Plastic Bag).) “As a general rule, a party
must be ‘beneficially interested’ to seek a writ of mandate. (Code Civ. Proc., § 1086.)
‘The requirement that a petitioner be “beneficially interested” has been generally
interpreted to mean that one may obtain the writ only if the person has some special
interest to be served or some particular right to be preserved or protected over and above
the interest held in common with the public at large. [Citations.] As Professor Davis

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states the rule: “One who is in fact adversely affected by governmental action should
have standing to challenge that action if it is judicially reviewable.” (Davis, 3
Administrative Law Treatise (1958) p. 291.)’ (Carsten v. Psychology Examining Com.
(1980) 27 Cal.3d 793, 796–797.) The beneficial interest must be direct and substantial.
(Parker v. Bowron (1953) 40 Cal.2d 344, 351; Braude v. City of Los Angeles (1990) 226
Cal.App.3d 83, 87; 8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 75, p.
956.)” (Save the Plastic Bag, at p. 165.)
       In assessing whether Keller has a beneficial interest sufficient to confer standing,
we find instructive our decision in Waste Management, supra, 79 Cal.App.4th 1223. In
that case, Waste Management was required to prepare an environmental impact report
under the California Environmental Quality Act (CEQA) before receiving a classification
upgrade allowing it to accept certain designated wastes. (Id. at pp. 1230-1231.) When a
nearby competitor, Browning-Ferris, received a classification upgrade for its disposal site
without having to prepare an environmental impact report, Waste Management filed a
petition for writ of mandate to compel Browning-Ferris to undergo the same CEQA
review. (Id. at p. 1231.) The trial court issued a peremptory writ of mandate, and this
court reversed on the ground that Waste Management lacked standing. (Id. at pp. 1228-
1229.) As we explained, “Waste Management’s interest in this litigation has been
commercial and competitive due to the fact both Waste Management and Browning–
Ferris are in the business of solid waste disposal. In essence, Waste Management
complains that it was required to go through a permit revision process with CEQA
review, while Browning–Ferris was not, thus identifying its injury as the extra cost it
incurred and continuing competitive injury due to Browning–Ferris’s lower costs.” (Id.
at p. 1229.)
       Here, the trial court found “Keller’s complaints are directed to the City’s
determination regarding the zoning of other towing companies, not his own. Keller does
not assert that the City has made arbitrary, unfair or incorrect determinations with respect

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to his towing company. The determinations that Keller challenges are not determinations
that may be enforced against Keller. [Citation.] Keller does not assert that he has been
deprived of any rights or benefits of the zoning determinations at issue.” The trial court
further found, “Keller’s interest in having competing towing companies incur similar
costs to what he has incurred in obtaining conditional use permits to operate an impound
lot does not serve as a beneficial interest in this action.”
       We conclude Keller lacks standing to challenge the City’s determination that his
competitors are operating their impound yards in harmony with the applicable zoning
laws. Keller’s petition alleges that the petition is based on his financial self-interest in
having the City revoke the nonconforming use determinations for several competitor
towing companies. As in Waste Management, Keller’s commercial interest in having
competing companies incur the same regulatory burdens and costs does not constitute a
beneficial interest sufficient for standing. (79 Cal.App.4th at p. 1234.) In Waste
Management, we held the business strategy of resorting to the courts to require a
competitor to incur similar regulatory costs “can only be an indirect interest from the
standpoint of the law.” (Id. at p. 1234.) The same result applies here in which Keller’s
pleading establishes that the basis for the action is a competitive interest in disqualifying
other towing companies from participating in the City’s tow rotation program. Based on
the allegations in Keller’s writ petition, we reject his attempt to distinguish Waste
Management on grounds it involved a petition whose “sole concern was one of
commercial competitiveness.”
       Keller also argues he has standing because he participated in the administrative
proceedings to challenge the zoning determinations regarding his competitors. In
support, he relies on the case of Bodinson Mfg. Co. v. California Employment Com.
(1941) 17 Cal.2d 321 (Bodinson). Bodinson involved an employer who sought
mandamus to set aside a decision by the California Employment Commission
(Commission) awarding unemployment compensation to several of its former employees.

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(Id. at p. 323.) The employer sought mandamus after exhausting its administrative
remedies before the full Commission. (Id. at p. 323-324.) The question presented for the
California Supreme Court’s decision in Bodinson was whether mandamus could be used
to challenge the decision of an administrative agency. (Id. at p. 329.) Acknowledging
the historical use of mandamus had been quite narrow, the court nonetheless concluded
the writ of mandamus is available to review the decisions of administrative agencies. (Id.
at p. 329-330.) The employer in Bodinson had standing to seek mandamus because the
outcome directly affected its obligation to pay into the unemployment insurance fund. As
the Bodinson court noted, “it seems apparent that the employer whose reserve account is
affected is the only person having sufficient incentive to challenge a decision awarding
benefits.” (Id. at p. 330.)
       The Bodinson court also noted the employer had participated in the administrative
proceedings prior to filing its petition for a writ of mandate. (17 Cal.2d at p. 330.) The
court stated, “We are aware of no authority which holds that a person permitted by statute
to participate as an interested party in the administrative hearings and to take appeals at
the administrative level is, nevertheless, without a sufficient interest in the result to test
the legality of the final decision before a court of law. Indeed, it seems to us that
elemental principles of justice require that parties to the administrative proceeding be
permitted to retain their status as such throughout the final judicial review by a court of
law, for the fundamental issues in litigation remain essentially the same.” (Id. at p. 330.)
       Keller seizes on this language to assert his participation in the administrative
proceedings before the City necessarily confers standing. A similar contention was
rejected in Madruga v. Borden Co. (1944) 63 Cal.App.2d 116 (Madruga). In Madruga,
milk producers participated in proceedings before the Department of Agriculture to
challenge the license of Borden Company, a milk distributor. (Id. at p. 118.) After the
license was granted, the milk producers sought to challenge the determination by seeking
a writ of mandate. (Id. at p. 121.) The trial court found the milk producers were not

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aggrieved by the decision, and this court affirmed. (Id. at pp. 121, 126.) This court
distinguished Bodinson, supra, 17 Cal.2d at page 321, as a case in which the procedural
posture meant that “the allegations of the complaint relating to the interest of the plaintiff
therein as an employer were admitted for the purposes of the demurrer. No question of
findings made upon evidence taken at the trial was involved.” (Madruga at p. 121.)
Thus, the question of whether the petitioner was aggrieved was not an issue before the
Bodinson court. (Id. at p. 121.) However, in Madruga, as in this case, the trial court
made the factual finding that the petitioner was not sufficiently aggrieved merely because
of a pecuniary interest in the granting of a license (or, as in this case, nonconforming
use) to another business. (Ibid.)
       The employer in Bodinson participated in the administrative proceedings as a
party, whereas in Madruga the milk producers had been involved only as complaining
citizens. As one treatise notes, “A person may have been involved (e.g., as a
complaining citizen) in the administrative hearing and still lack sufficient standing to
petition for mandamus.” (1 Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2009
supp.) § 7.6, p. 305, second italics added.) Consequently, Keller’s participation in the
administrative proceedings as a complaining citizen by itself does not confer standing.
       We also reject Keller’s assertion he has standing because a petitioner “may have
status to sue when the petitioner can show that the petitioner’s business operations are
inextricably interwoven in the agency’s threatened conduct.” First, Keller’s petition does
not make the factual assertion that his business operations are inextricably interwoven
with the City’s actions. (Alfaro v. Community Housing Improvement System & Planning
Ass'n, Inc. (2009) 171 Cal.App.4th 1356, 1396 (Alfaro) [issue forfeited when facts in
support were not alleged in the trial court].) Second, Keller’s grounds for relief are not
based on any action by the City against him or his business but only against his
competitors. In other words, the City’s actions do not directly affect him and are not



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inextricably interwoven with his business. (Employees Service Ass'n v. Grady (1966) 243
Cal.App.2d 817, 827.)
       We conclude Keller lacks a beneficial interest sufficient to confer standing to seek
a writ of mandamus to challenge the City’s zoning determinations for his competitor
towing companies.
                                              B.
                                  Public Interest Standing
       Keller argues that even if he personally lacks a beneficial interest, he nonetheless
has standing under the public interest exception. We disagree.
       “As a general rule, a party does not have standing to seek a writ of mandate unless
that party is ‘beneficially interested.’ (Code Civ. Proc., § 1086.) An exception to this
general rule of standing exists where the mandamus petition seeks to enforce a public
duty and raises a question of public right. (Save the Plastic Bag, supra, 52 Cal.4th at p.
167.) In those circumstances, a citizen has standing based on his or her interest in having
the laws executed and the duty in question enforced. (Ibid.) Our Supreme Court has
referred to this type of standing as ‘public interest standing’ and the type of lawsuit in
which it exists as a ‘citizen suit.’ (Id. at p. 168.)” (Consolidated Irrigation Dist. v. City
of Selma (2012) 204 Cal.App.4th 187, 202.)
       The mere assertion of an interest in having the laws executed does not necessarily
confer public interest standing. As the California Supreme Court has held, “No party,
individual or corporate, may proceed with a mandamus petition as a matter of right under
the public interest exception.” (Save the Plastic Bag, supra, 52 Cal.4th at p. 170, fn. 5.)
The court went on to note, “As the Waste Management court correctly observed, ‘Judicial
recognition of citizen standing is an exception to, rather than repudiation of, the usual
requirement of a beneficial interest. The policy underlying the exception may be
outweighed by competing considerations of a more urgent nature. (Green v. Obledo
[(1981)] 29 Cal.3d [126,] 145; see also Nowlin v. Department of Motor Vehicles (1997)

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53 Cal.App.4th 1529, 1538.)’ (Waste Management, supra, 79 Cal.App.4th at p. 1237.)”
(Save the Plastic Bag, at p. 170, fn. 5.) In determining whether a petitioner has public
interest standing, we engage in a “balancing of interests, and the interest of a citizen may
be considered sufficient when the public duty is sharp and the public need weighty.”
(Waste Management, supra, 79 Cal.App.4th at p. 1237.)
       Here, the trial court found that Keller “fails to establish that an important public
right is at issue such that the public interest exception to the beneficial interest
requirement should apply.” We agree. The City has engaged in administrative
proceedings demonstrating an examination of whether the nonconforming use
determinations for Keller’s competitors were properly made. Thus, the agency charged
with zoning code compliance has shown it is ready and willing to ensure the zoning laws
are applied. The public need for Keller to pursue the present action is weak because it is
redundant with the City’s efforts. Moreover, the City has shown a willingness to fulfill
its public duty to ensure zoning code compliance.
       Keller’s opening brief purports to take the following quote from Blankenship v.
Michalski (1957) 155 Cal.App.2d 672, at page 673: “It has been held that the
requirement of beneficial interest is satisfied if the petitioner is a resident of the
community inasmuch as the enforcement of a zoning ordinance is a matter of public
interest to the total community.” We have not found the quoted language anywhere in
Blankenship v. Michalski, which concerned only the issue of whether a public official had
sufficient discretion in carrying out a particular duty to defeat any relief that could be
granted by writ of mandate. (Id. at pp. 674-675)
       We also reject Keller’s reliance on Burrtec Waste Industries, Inc. v. City of Colton
(2002) 97 Cal.App.4th 1133 (Burrtec). The Burrtec court concluded a trash company
had standing under the public interest exception to challenge the sufficiency of CEQA
review of a competitor’s solid waste facility. (Id. at pp. 1136, 1138-1139.) In Burrtec,
the Court of Appeal noted that “[s]ufficient evidence supports the superior court’s

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determination that the express beneficial interest asserted by Burrtec is not rank
commercialism but rather the need for public notice under CEQA. The record establishes
Burrtec has a genuine and continuing concern for environmental matters and for
compliance with the CEQA process.” (Burrtec, at p. 1139.) Here, by contrast, Keller’s
petition alleges the basis for standing is the inequity of the “financial harm” due to the
“uneven playing field of competition” resulting from the City’s zoning determinations.
       Keller is not acting as a citizen with a public interest in the City’s enforcement of
zoning laws. Instead, Keller’s petition states economic self-interest serves as the basis
for the present action. Accordingly, the public interest standing exception does not apply.
                                                C.
                                      Taxpayer Standing
       Keller asserts –- for the first time on appeal –- this action is a taxpayer suit.
Keller’s petition for writ of mandate does not allege any facts showing the City has
engaged in illegal expenditures or waste of public resources. For failure to present the
claim as a taxpayer suit in the trial court, Keller has forfeited the claim.
       Keller premised his petition for a writ of mandate on allegations that the City erred
in making its zoning code determinations. To respond to Keller’s petition, the City was
not required to rebut any factual allegation of misuse of public resources or illegal
expenditures. “As a general rule a party is not permitted to change its position on appeal
and raise new issues not presented in the trial court. [Citation.] This is particularly true
‘when the new theory depends on controverted factual questions whose relevance thereto
was not made to appear’ in the trial court.” (Alfaro, supra, 171 Cal.App.4th at p. 1396,
quoting B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959.)
Accordingly, we deem Keller’s contention regarding the present action being a taxpayer
suit to be forfeited for failure to allege facts in support of this theory in the trial court.




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                                     DISPOSITION
       The judgment of dismissal is affirmed. The City of Roseville shall recover its
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)



                                                       HOCH       , J.



We concur:



      RAYE        , P. J.



     ROBIE       , J.




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