Filed 1/27/14 Wiltgen v. Superior Court CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



LEAH WILTGEN et al.,

         Petitioners,                                                    E059852

v.                                                                       (Super.Ct.No. INC1100102)

THE SUPERIOR COURT OF                                                    OPINION
RIVERSIDE COUNTY,

         Respondent;

WILLIAM J. HEALEY III et al.,

         Real Parties in Interest.




         ORIGINAL PROCEEDINGS; petition for writ of mandate. John G. Evans, Judge.

Petition is granted in part and denied in part with directions.

         Best, Best & Krieger, Irene S. Zurko and Kira L. Klatchko for Petitioners.

         No appearance for Respondent.

         Kramer, Deboer & Keane and Jeffrey G. Keane for Real Parties in Interest.




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                                       DISCUSSION

       In this matter we have reviewed the petition and the opposition filed by real parties

in interest. While real parties’ failure to address the essential merits of the case could be

deemed a concession, we have determined that resolution of the matter involves the

application of settled principles of law, and that issuance of a peremptory writ in the first

instance with respect to certain issues is therefore appropriate. (Palma v. U.S. Industrial

Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

       First, while we have been unable to determine exactly what legal theories real

parties intend to present in the cause of action labeled “negligence,” we conclude that it is

appropriate to sever out whatever claim real parties make based on petitioners’ alleged

misuse of funds and/or the “waste” of real parties’ time and effort. (See Lilienthal &

Fowler v. Superior Court (1993) 12 Cal.App.4th 1848.) Insofar as real parties may

intend to press claims for defamation or the failure to provide insurance coverage, we

will deny the petition as petitioners did not address any such claims.1

       “The primary responsibility for supervising charitable trusts . . . for ensuring

compliance with trusts and articles of incorporation, and for protection of assets held by

charitable trusts and public benefit corporations, resides in the Attorney General.” (Gov.

Code, § 12598; City of Palm Springs v. Living Desert Reserve (1999) 70 Cal.App.4th


       1 We do note that real parties’ assertion that petitioners failed to maintain errors
and omissions coverage in their favor may be confusing such a duty (which does not
appear to be reflected in the bylaws) with the obligation imposed by the school district
that booster clubs maintain liability insurance.


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613.) It is quite true that in an appropriate case, an action to enforce the terms of a trust

may be brought by fiduciaries of the trust or by the direct, identifiable beneficiaries of the

trust. (See generally San Diego etc., Boy Scouts of America v. City of Escondido (1971)

14 Cal.App.3d 189.) But that is a far cry from allowing any disgruntled donor to pursue

personal litigation seeking personal damages against the current fiduciaries based on

alleged breach of the charitable intention. Indeed, real parties’ cross-complaint does not

even purport to state a claim on behalf of any charitable organization or the beneficiaries

thereof.

       We note that this matter does not involve a claim that charitable donations were

induced by false promises as to the use of the funds, and we express no opinion on any

such claim.

       Accordingly, we have no difficulty in determining that, as a matter of law, this

claim fails and petitioners were entitled to summary adjudication of the issue.

We grant the petition in this respect.

                                         DISPOSITION

       The petition for writ of mandate is granted in part and denied in part. Let a

peremptory writ of mandate issue directing the superior court to vacate its order denying

summary adjudication of the claim for mismanagement or misuse of funds in the cause of

action labeled “negligence,” and to enter a new order granting the motion in that respect

only. In all other respects the petition is denied.




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       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. In the interest of justice, the parties are to bear their own costs.

       The previously ordered stay is lifted.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                   RICHLI
                                                                                               J.
We concur:



HOLLENHORST
          Acting P. J.



CODRINGTON
                            J.




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