36x48" oil pastel and water color

28x36" monoprint

9x12" Pencil/Paper Abstraction

 

Water color diptych

poem

 (untitled)

Smufato—

such a funny

word,

marking when

in history

artists began to know

the best art glows.

sculpture

untitled poem

 (untitled)

Consciousness is a bubble

and no one likes

to be unnecessarily

awakened from slumber;

yet the goal

of every human life

is to break

through,

popping all the smaller

bubbles,

to realize

a bigger one.

Poor us.

Lisa & Bisa

 (untitled)

When you walk on the sand
at the shore
and see someone
scratched Lisa Loves Bisa,
you don’t think
somehow the tide
created that,
or maybe a specie of
cute little crabs
had nothing better to do—
no, you know
there was complex specificity
behind it,
a whole narrative
of people alive.

And when you walk through
the fields and groves
of captivating beauty,
sunlight hitting them so
at the moment,
all medicine and nourishment,
and consider
the recurring motifs
of existence,
you ought to know
you are part of a creation,
a mark in the universe
that goes
on and on
and on.

Hey, want to contribute to an action for the public arts?

Wrap bank notes in piece of paper and send.

It would be towards the following writ, soon to be perfected and filed. 

John De Herrera

PO Box 5888

Santa Barbara, California, 93150

805-708-1965

John De Herrera, IN PRO PER

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA BARBARA 

Petitioner,

John De Herrera

v.

Respondent,

Attorney General of the State of California

Motion For Peremptory Writ of Mandate or Prohibition

No.  Case Number

Petitioner:

John De Herrera—Professional artist and educator living/working in City of Santa Barbara.

Respondent:

Attorney General of the State of California — hereafter referred to as “Attorney General”

Petitioner comes now in the public interest and shows unto the court the following.

Narrative & Statement of facts:

Over a decade ago Ms. Huguette Clark passed at age 104, bequeathing Bellosguardo, a 23+ acre estate within Santa Barbara City limits, to be administered as 501(c)(3) charitable public trust for arts and arts education. Decedent’s Will specifies “arts and arts education” in regards to wishes for property. (ATTACHED)

September, 2014 Per settlement agreement of her Will, a then-Santa Barbara Mayor was tasked with nominating board members to that charitable trust, whereupon a local political consultant, Jeremy Lindaman, was tapped to assist. Upon incorporation in New York, September 2014, the Bellosguardo Foundation and its board was conferred 501(c)3 status and granted the legal ability to operate as charitable trust to benefit the public. (ATTACHED)

Late March, 2018 Five and a half years later (65 months), local paper of record The Independent published Bellosguardo: Legacy In Limbo. (ATTACHED) It addressed what was factually known at that time through available documents and interviews of locals familiar with the property and the Bellosguardo Foundation (hereafter “the foundation”). That it elected Lindaman president when such a position is normally chosen after a nationwide search of candidates with decades of experience in the arts and/or arts education, naturally drew sharp criticism from experienced nonprofit professionals. The Independent piece concluded with published comment from Mr. Lindaman: “The Foundation is pleased to announce that successful negotiations with the IRS have concluded and all tax issues [...] have been resolved on favorable terms.... The Foundation understands that the need to maintain confidentiality during the negotiating period resulted in some negative speculation and confusion in the community. Our limited public dialogue was out of concern that any announcements or comments could be misinterpreted by the IRS, jeopardizing negotiations. The Foundation can now begin more publicly discussing the options for the property’s use. An appropriate press event will be conducted in the near future to provide more information.”

At this time, Petitioner, who like many had been eagerly awaiting the opening of Bellosguardo, was reminded of similar situation where another estate in nearby Montecito—Val Verde—was also left to a charitable trust, and through indiscretion by that board, the property eventually had to be sold to a private buyer. A local news excerpt January 2010 read: “In early 2009 the court replaced Val Verde's executive director with bankruptcy attorneys. There are plenty of theories but rather few publicly ascertainable facts as to why the foundation failed so thoroughly to manage the estate and its legacy.” (ATTACHED)

Late March, 2018 Fearing a repeat where a property meant to benefit the public might end up sold, Petitioner contacted Santa Barbara Mayor and City Council. Then-Mayor suggested legal suit against the foundation, one Council Member said the foundation’s board was an "ego fest" and they weren’t getting involved, and one suggested finding another Council Member to formally request a public hearing, as two approvals are required to have a public discussion scheduled. Coincidentally, a day later Petitioner saw a newly elected Council Member in line at the movies, informed them of situation, emailed reminder a few days later, but Petitioner received no reply.

Early April, 2018 Petitioner attends public comments at City Hall. With then-Mayor/Council present, Petitioner asked what a reasonable amount of time was for the foundation to publicly present its plans for Bellosguardo. Petitioner reminded those present that the City Charter, under Article 6, states: “The city shall have the power to exercise any and all rights, powers and privileges, including proprietary powers, here to, or hearafter established.”  And that it further states, Section 505, that all powers of the city are vested in the City Council. (ATTACHED)

Late May, 2018 With two months passing since Lindaman’s assertion of a public discussion and no announcements from the foundation, nor action by City Council, Petitioner formally requested the plain/speedy remedy of public hearing be scheduled. (ATTACHED)

Mid June, 2018 Petitioner sat with Grand Jury to discuss Bellosguardo, to no avail. Not hearing back from City Council, Petitioner contacted County Board of Supervisors. One Supervisor returned with a phone call, leaving off that they would contact Mayor to discuss the matter. Petitioner believed he had accomplished goal of initiating formal discussion about Bellosguardo. (ATTACHED)

Early July, 2018 Petitioner returned to City Hall to find no hearing scheduled, whereupon he filed formal complaint, to which he received no reply.

Mid August, 2018 The foundation announces soiree as its inaugural fundraiser. Entrance fees were reported at $1500 which included dinner and “exposure to our exclusive ultra high net worth guest-list.” When asked about the foundation’s plans for Bellosguardo a board member was quoted in The Santa Barbara News Press, “[W]e have a long way to go in that process…. We want the soiree to spark interest in the estate’s past [to] raise funds needed to open it to the public…. Reaching that goal will take time and effort, but the payoff will be worth the wait.” (ATTACHED). This announcement came six months after publicly asserting there would be public discussion about options for the property’s use. There was no local press/reports Petitioner could find about the people attending and/or how successful the fundraising event was, and still to date, almost ten years, there has never been a public discussion with the foundation about Bellosguardo and its use.

Coinciding with reports of soiree/fundraiser was the foundation’s updated website copy: “For years Bellosguardo has been shrouded in mystery, one of the least visited and most whispered about landmarks on the California coast. An impenetrable secrecy has long hung over the estate, until now…. Today Bellosguardo stands as [decedent] left it so many years ago, a monument, perfectly maintained…the house and grounds locked in pristine isolation…. Realizing [its future] will take time and commitment, but the fruits of that labor will be well worth the effort….”

Late August, 2018 Petitioner locates foundation’s founding documents, laying out its vision of Bellosguardo as a museum experience, in order to attain charitable trust status, and that the foundation would be seeking out "educational arts institutions that can lend expertise, knowledge, and advice to the foundation….” No information about any such conversations have ever surfaced. (ATTACHED)

Early September 2018 After filing formal complaint with City Council and receiving no reply, Petitioner visited library and located California Forms of Pleading and Practice, Chapter 5: Initiating a Superior Court Proceeding, and Civil Writ Practice. Petitioner learned that if incorrect Writ is filed, Court may treat it as proper, and especially if the matter is in the public’s interest.

October, 2018 Petitioner files writ, attempting to alter non-transparency around Bellosguardo (18CV04913)

Late November, 2018 Court rules Petitioner did not demonstrate a special interest above and beyond the public at large, and had not brought the Attorney General before the Court in the matter. (ATTACHED)

Late October, 2021 News reports an audit by Attorney General, on the foundation, would commence. (ATTACHED)

Late December, 2021 Petitioner notifies Attorney General of writ filed 2018, regarding Bellosguardo, hoping to aid in determining situation. (ATTACHED)

Mid January, 2022 Petitioner inquires with Attorney General again, receives no reply.

Late March, 2023 Petitioner inquires with Attorney General again, receives reply that inquiry has been forwarded to Charitable Trust unit.

Early April, 2023 Petitioner attends commissioning ceremony of USS Santa Barbara where by coincidence Petitioner passes Mayor of Santa Barbara in ship stairwell. Petitioner mentioned Bellosguardo and Mayor replied the City had no standing in the matter. Petitioner asked Mayor to review City Charter, Powers of the City, and section 505 (ATTACHED)

Mid April, 2023 Petitioner signed/sends by certified mail a CT-9 formal complaint to Attorney General regarding Bellosguardo. (ATTACHED) At this time Petitioner also made made notice on social media (NextDoor), which resulted in community members coming forward with information.

Mid May, 2023 Resultant from Next Door communications Council Member discusses Bellosguardo in email exchange with resident inquiring about Bellosguardo, and Petitioner engages Council Member in forwarded exchange (ATTACHED). That exchange went like this:

Late May, 2023 Petitioner sends inquiry to Attorney General about CT-9 and receives nothing of substance. (ATTACHED)

Early June, 2023 Petitioner attempts to get City Council to schedule Bellosguardo on public calendar and receives email reply. (ATTACHED)

Late June, 2023 Petitioner begins work on this very writ.

The matter is a tangled mess. Petitioner directs Court’s attention to the working ends:

The Foundation

In response to 2018 Writ, counsel for the foundation argued the Court has no jurisdiction over its discretion and Petitioner had no standing. The foundations’s counsel had put forward that until December 2017 it was in no position to make any modifications or do anything to prepare Bellosguardo to open to the public, when the three years between inception of foundation and its receiving the keys did not require modifications, but rather transparent discussion about what modifications, if any, are needed at all. Determining and reporting such are what the foundation’s salaries were going towards since September 2014. In the proceedings the foundation claimed "several meetings were held with potential donors during…. And all potential donors indicated that they were not prepared to make any gift to the foundation until it was clear the foundation would own the property…. Bottom line is that it is impossible for the board of directors to have done anything more than they've already done." This means the foundation allegedly approached a few unnamed people who doubted eventual possession, and ceased to seek other possibilities like publicly reaching out to the City Council, if not the citizens of Santa Barbara themselves? The foundation couldn’t have already struck limited agreements with similar institutions? The foundation could not have begun screening volunteers for docent/management needs? Bottom line is that the foundation’s contention it’s done whatever could be done is proof of incompetence and/or malfeasance. Years of almost complete silence, other than strict messaging that characterizes the opening of Bellosguardo as a vague future possibility, attests to the notion that what things look like may in fact be what they are — an unspoken agenda to deny the wishes of the decedent and rob the beneficiary of due.

In response alibi for foundation’s silence was because it didn’t want to disturb IRS negotiations to forgive outstanding tax penalties, when showing how excited public is about Bellosguardo — which would require such things as public announcements and photographic evidence — would be the logical way to to have penalties waved. Showing the IRS photos of Santa Barbara volunteers maintaining the grounds — in order to save funds — is the top reason why outstanding penalties would be waived. If the mandated task is to open a property for public arts/arts education, and the property has been reported on, written about, and known to public as a stunning treasure waiting to be enjoyed — what need would there be for any confidentiality? What would need to be cloaked in silence? To Petitioner, obvious answer is: nothing. In other words, the foundation’s website messaging gets the situation upside down and perfectly wrong to characterize the mystery surrounding Bellosguardo as the property itself, when the mystery is what the foundation has done to open it to the public. 

In testament for the Bellosguardo Foundation to be conferred 501(c)3 status, those behind the effort explained: “Initially, the foundation’s activities will include developing a long term plan to create a museum experience for the visiting public, which will include ticketed admissions to the property. As part of developing a unique and worthwhile educational experience, the foundation will need to tackle a number of practical concerns relating to transforming a vintage residence into a contemporary museum. First and foremost, a number of structural improvements will need to be made to the property, including modernizing, properties, mechanical, electrical, and other systems, HVAC and climate, control system, restroom and plumbing system, installing and or updating elevators, updating windows, etc. Great care will need to be taken with respect to the planning and execution of such improvements, in order to preserve both the unique historic and artistic characteristics of the property and its contents, while also enabling the property to obtain museum support certification, exhibitions of artwork, and accommodate visitors. In connection there with, accessibility to the property also will need to be modernized in order to comply with the Americans with disabilities act. The foundation will need to address visitor parking as well, which may involve leasing a nearby parking lot and shuttling visitors to the property itself in order to maintain the properties character while facilitating visitor access.

“As part of the foundations plan to build a museum experience, the foundation hopes to coordinate with one or more existing charitable and educational arts institutions that can lend expertise, knowledge, and advice to the foundation, as well as facilitate exhibitions at the property to maximize the visitor experience. In addition, the foundation may explore the possibility of forming partnerships with other charitable arts institutions, such as the music Academy of the West in order to bring live performing arts to the property. The property includes a 5 acre lawn that could be used for outdoor concerts in the spring and summer months provided appropriate restroom and parking facilities are made available. Concurrent with foundations development of a long-term plan for converting the property, the foundation intends to open the property to the public as a historic residence to educate visitors on the property’s, architecture and the lives of its former inhabitants, Miss Clark, and her mother, Anna…. At this early juncture, the property has the requisite space and facilities necessary to accommodate the parking needs of only a limited and controlled opening to the public. As the accessibility of the properties improve, the foundation expects that access to the property in the activities that take place on the property will expand to include operating a full-fledged museum, hosting, exhibitions and arts, events and programming, including lectures, in special events, and other programming to promote the arts consistent with the foundation’s charitable purposes….

Once incorporated: “The Bellosguardo Foundation Inc. was established to be operated exclusively for charitable, educational, literary, and other purposes within the meaning of section 501C3…. In furtherance thereof and consistent with the charitable purposes expressed in the Last Will and testament of Huguette M. Clark, namely, to foster and promote visual, audio, literary, performance, and other arts, the foundation plans to open the property located at 1407 Cabrillo Blvd. and known as Bellosguardo, to the public.… The board intends to honor Ms. Clark’s charitable wishes by using the property to foster and promote the arts as further described below.

“Great care will need to be taken with respect to the planning and execution of such improvements [to property], in order to preserve both the unique historic and artistic characteristics of the property and its contents, while also enabling the property to obtain museum certification, host exhibitions of artwork, and accommodate visitors. In connection therewith, accessibility to the property will also need to be modernized in order to comply with the Americans with Disabilities Act. The foundation will need to address visitor parking as well, which may involve leasing a nearby parking lot and shuttling visitors to the property itself in order to maintain the property’s character while facilitating visitor access.

Estoppel by silence. arises when a party is under a duty to speak but fails to do so.

Estoppel by inaction

Duplicity: Dishonest behavior that is designed to deceive someone; deceitfulness; double dealing

inimical: behaving like an enemy 

Attorney General

Oversight of charitable trust foundations in the state of California is the responsibility of the California, Attorney General. The Supervisor of Trustees and Fundraisers for Charitable Purposes Act (Gov. Code 12580-12599.8) provides the Attorney General with a variety of tools to protect charitable assets. It also requires that the Attorney General be a party to court proceedings to modify or terminate any trust of property for charitable purposes (Gov. Code 12591). According to the Attorney General’s Guide for Charities:

Chapter 7 Directors & Officers of Public Benefit Corporations: A public benefit corporation usually operates with three or more directors, allowing the charity to avoid conflict of interest problems, and gives board members ability to share in oversight responsibilities.

In selecting directors for board appointment, Attorney General suggests nominating and appointing candidates who have appropriate levels of competency, experience, integrity, enthusiasm, and commitment to be fully engaged. Also, that candidates fully realize the expectations and legal requirements, including the need to attend board meetings.

Attorney General suggest adopting bylaws that rotate leadership as directors may sometimes become entrenched in their ideas and positions.

In evaluating compensation the board should analyze whether the proposed amount to be paid is in the best interests of the nonprofit. Get the facts on proposed compensation amount, including all “fringe benefits.”

Find out what other organizations with similar size, location, comparable programs pay their executives.

The board of directors should meet regularly. And the board should ensure compliance with various record keeping requirements, which include the duty to keep records of minutes of board meetings, membership lists with name, address, and type of membership. Such records are important not only to provide historical background and context supporting the board’s decisions, but also because they may be considered prima facie evidence that meetings were held, and matters referenced in the minutes were actually decided.

The officer’s duties —they must scrupulously protect the interests of the corporation, exercise their powers in good faith and with best efforts, and may not use their position to further their private interests.

Directors also act fiduciaries, and each owes a duty of care to its nonprofit and its beneficiaries. For public benefit corporations, directors are required to preform with the level of care that an ordinary prudent person in a like position would use under similar circumstances. To ensure the duty of care is met, a director should review the articles of incorporation to best understand the corporation’s mission. Each director owes a duty of loyalty to its public benefit corporation, and is obliged to act with undivided loyalty, and must not seek to benefit personally from the resources of the nonprofit.

Self-Dealing Transactions: A self-dealing transaction involves one or more of its directors has a material financial interest, where director makes profit from transacting business with the corporation. The Attorney General typically also seeks the permanent removal of interested directors.

Chapter 10: Attorney General’s Role With Charities: The Attorney General has the primary responsibility for supervising charities and charitable trusts operating in California.

The Legal and Audits Unit is comprised of attorneys, investigative auditors, and legal assistants, and is tasked with performing investigations and audits which can involve different areas of concern such as diversion or loss of charitable assets, or failure to diversify investments leading to gains, breaches of fiduciary duties, and misleading, deceptive, solicitations and fundraising practices.

As for what triggers a Charitable Trusts Section investigation, the Attorney General receives leads or complaints from many sources including other government agencies, media reports, and consumer/users of services.

During audit process Legal and Audits Unit may interview directors, officers, and other interested parties such as complainants, volunteer, current and past employees, bookkeepers, and accountants.

Depending on the investigation’s complexity and other work, it can take between six months to a few years to complete and investigation.

Enforcement actions may seek recovery of charitable funds including lost income and interest, assessment of penalties, injunctive relief orders removing directors, and a charity’s dissolution.

Chapter 12: Charitable Trusts, Religious, & Foreign Entities: A trust is not a separate legal entity, but rather a legal relationship by which [a board] holds title to the property for the [beneficiary]. The trustee has a fiduciary duty to always act in the best interests of the trust and its beneficiaries, who hold equitable title. California case law defines a fiduciary relationship wherein trustee, “is duty bound to act with the utmost good faith for the benefit of the other party,” such as a trust’s beneficiaries.

The Attorney General has oversight jurisdiction over trusts that are created or hold assets for charitable purposes. More specifically, Attorney General represents the public beneficiaries of charitable trusts, and not only has the right, but the duty, to protect charitable gifts and the public beneficiaries’ interests in charitable trusts. (Gov. Code §§ 12598)

For example, this can occur in a court proceeding, where parties seek approval from a probate court to modify or terminate a charitable trust. Yet, the court has no jurisdiction to do so unless the Attorney General is a party to a proceeding. Another example of Attorney General oversight is when a charitable trust becomes irrevocable.

Foreign Entities: The Attorney General has oversight over foreign entities involved in the nonprofit sector in California. Foreign entities are organizations legally formed outside of California (i.e., in another state or country). This oversight covers not only the Supervision of Trustees and Fundraisers for Charitable Purposes Act, but other California laws as well.

Registration Requirements The Supervision of Trustees and Fundraisers for Charitable Purposes Act’s registration and reporting requirements apply to persons and entities that conduct business or hold charitable assets in or from California. This includes foreign corporations, trustees, and fundraising professionals.

Why has this situation been going on for years? Audits not only contain numbers but facts regarding discretion of a board for a public charitable trust. Where are the audits? What has the Attorney General done to not only honor the wishes of the decedent, but protect a public asset? No one would argue the Attorney General has no authority to make findings about public trust operating in the state. Where are the findings, what are the determinations?

§ 49 California Jurisprudence

There is no rule or policy against supplementing the Attorney General’s power of enforcement by allowing other responsible individuals to take legal action on behalf of a charity. A beneficiary or one possessing a reversionary interest may object to the disposition of the property of a charitable trust.

CaliforniaCode §1290. Public Inspection of filed documents

Subject to reasonable rules and regulations adopted by the Attorney General, the register, copies of instruments, and the reports filed with the Attorney General shall be open to the public inspection. The Attorney General shall withhold from public inspection any instrument so filed whose content is not exclusively for charitable purposes.

Cal. Code §12519. Opinion on questions of law

The Attorney General shall give his or her opinion in writing to any member of the Legislature, the Governor, Lieutenant, Governor, Secretary of State, Controller, Treasurer, State Lands Commission, Superintendent of Public Instruction, Insurance, Commissioner, any state agency and any county council, district, attorney, or Sherrif, when requested, upon any question of law relating to their respective offices.

The attorney general shall give his or her opinion in writing to a city, prosecuting attorney, when requested, upon any question of law relating to criminal matters.

CC §12582.1 “Charitable corporation”

“Charitable corporation” means any nonprofit corporation organized under the laws of this State for charitable or eleemosynary purposes, and any similar foreign corporation doing business or holding property in the state for such purposes.

CC §12591. Proceedings and powers of Attorney General; Jurisdiction

The Attorney General may institute appropriate proceedings to secure compliance with this article, and to invoke the jurisdiction of the court. The powers and duties of the Attorney General provided in this article are in addition to his/her existing powers and duties. Nothing in this article shall impair, or restrict the jurisdiction of any court, with respect to any of the matters covered by it, except that no court shall have jurisdiction to modify or terminate any trust of property for charitable purposes, unless the Attorney General is a party to the proceedings.

CC §12599.7. A commercial fundraiser for charitable purposes, shall maintain during each solicitation campaign, not less than 10 years, following the completion of each solicitation campaign records, including any electronic records, containing the following information, which shall be available for inspection upon demand by the Attorney General:

(1) The date and amount of each contribution received as a result of the solicitation campaign and, for non-cash contributions, the name, and mailing address of each contributor. (2) The name and residence address of each employee, agent, or other person involved in the solicitation campaign. (3) Records of all revenue received and expenses incurred in the course of the solicitation campaign. (4) For each account into which the commercial fundraiser deposited revenue from the solicitation campaign, the account number, and the name and location of the bank, or other financial institution in which the account was maintained. (b) If the commercial fundraiser for charitable purposes sells tickets to an event and represents, the tickets will be donated for years by another, the commercial fundraiser shall maintain for not less than 10 years, following the completion of the event records, containing the following information, which shall be available for inspection, upon demand by the Attorney General:

(1) The number of tickets purchased and donated by each contributor. (2) The name and address of all organizations receiving donated tickets for use by others, including the number of tickets received by each organization.

The City Council

As mentioned, Petitioner coincidentally met Mayor in ship stairwell of USS Santa Barbara early this April, they claimed City has no standing in the matter. Why has this situation been going on for several years without the City Council exerting its discretion in the interests of the City? Any concern within city limits the City has exclusive control over — including private and proprietary matters, this is a matter of fact and law. The City Council is duty bound to act in City’s interest if a foundation within city limits is lacking discretion. The plain, speedy, remedy is to have a formal discussion about the situation, initiated by two separate Council Members agreeing subject is worthy, at which point a ministerial duty schedules a public hearing. Twice, in 2018, and now again five years later, City Council, based on claims that are untrue next to City Charter, takes position there is nothing it can do about the situation.

City Council Emails (ATTACHED)

Santa Barbara resident Celeste Barber email May 17th, 2023

Dear Mayor and Council,

 

I am asking that  the City please look into what is happening with Bellosguardo: its custodianship, including its finances. This really needs to be opened  up to the public beyond  $200.00 a  pop tours of the grounds.  A public hearing would be a good idea. I am considering myself writing to the next  seated Civil Grand Jury after July  1^st. But this just isn’t right. And  certainly, not  what  Huguette Clark intended. We are all familiar with the history and what has  been ongoing. It’s a damn  shame. I would also suggest that you  read  through  the NextDoor  post  (John Herrera initiated),  especially the many comments  from residents.

 Thank you,

 Celeste Barber

Reply to Celeste Barbara from Council Member Mike Jordan May 17th, 2023

Hi Ms. Barber-

Bellosguardo is currently working thru the city permitting process to allow public operations. The city has no standing to compel Bellosguardo to participate in any type of organization review,  such entities are under state oversight. I suspect the County Grand Jury would quickly come to the same conclusion, but I have no particular concern with anyone pursuing that option. I’ve seem Mr. Herrera’s ND posts, I’m thinking I remember he has even contacted and requested the state look into this, and the state declined. 

I check in with Jeremy Lindaman every several months, really just to make sure the city is processing his project as quickly as possible and not standing in the way. I’m satisfied, so far, that both parties are working to get the project accomplished. I don’t think it’s my role to respond to online conjecture, as I said, if there is something there, it should be brought to the state oversight agency. 

Petitioner replies to Council Member Jordan May 18th, 2023

Council Member Jordan, A Writ of Mandate was filed 2018 (attached), facts presented then still stand today. What permitting process, and for what specifically, is the Foundation currently working through? Why not hold a public hearing to disclose those negotiations? The City, according to its charter, has complete control of Bellosguardo--read it for yourself--any property within city limits is under control of the city.

Council Member Jordan Does Not Reply to Petitioner

Email Sent By Petitioner to City, June 2, 2023

Hello, this is a true/valid request for Bellosguardo Foundation to be added to agenda for Council Meeting.

I have an art space in the Funk Zone and would be happy for any/all to stop in: 120 Gray Avenue — Colorfield Arts. Of course I can visit any/all, just let me know when/where, or call number below, to discuss why it should be added and how it's incorrect to believe City Council has no authority over it or how the property is administered.

Reply From Holly Perea June 2, 2023

Good morning Mr. Herrera,

Thank you for reaching out to the Mayor & Council office. The City of Santa Barbara has no oversight of the Bellosguardo property.  It's run by a local nonprofit organization, the Bellosguardo Foundation.  Here's the link to their website with their contact information: https://www.bellosguardo.org/

As a matter of procedure, whenever you'd like to request that an item be added to the agenda, you would need to first speak with Councilmembers about the subject and why you think it should be brought to a Council meeting. You would need to gain the support of at least two who are willing to officially request that the matter be added to a future agenda. But the subject has to be a matter they could take action on, and they have no authority over the Bellosguardo Foundation. 

The contact information for each Councilmember can be found on the City's website at this link: https://santabarbaraca.gov/government/mayor-city-council/contact-mayor-council

Have a nice day,

Holly

Holly Perea

Assistant to Mayor & City Council

CITY OF SANTA BARBARA

Reply From Council Member Mike Jordan June 2, 2023

Hello Mr. De Herrera-

Unfortunately, I also agree with the email reply back to you above. I’ve watched your online efforts to get traction on this, and my recollection is that your efforts to also engage the CA Attorney’s Office, the proper oversight agency for these types of organizations, were fruitless.  If you’d like to make your case in an email, happy to read it.  I see no benefit in debating the city’s role in person. 

Petitioner’s Reply to Council Member Jordan June 4, 2023

According to the Charter of the City its powers over anything within city limits are supreme. A Write of Mandate was filed 2018 and most if not all therein is still true today. I’ve been in contact with the Attorney General as recently as two days ago. Your recollection/perception on this matter is misapprehended and incorrect, and I don’t think I should be tasked with composing a two/three page email, to inform you of fact and law, when a ten minute call from you would suffice.

Reply from Council Member Mike Jordan June 4, 2023

Thanks John, this is exactly why I pass on this, I don’t need to waste the time of both of us debating “supreme,” “still true,” “fact and law” and whether you or I am misapprehending or incorrect.

Petitioner’s Reply to Council Member Jordan June 4, 2023

If someone suggested I was misapprehending/incorrect about something worth millions of dollars in revenue for the City, I’d call them right away—and I’m just a local—not a City Council Member. I have your email to Celeste Barber, and I have this exchange, as true and valid emails, so maybe a call would be a waste of my time; don’t think it would be for you though.

Reply from Council Member Mike Jordan June 4, 2023

Again, I have no desire to debate your prior email assertions, this email’s opinion of what you would do, what I should do, or whatever something called a true and valid email could possibly mean. 

I’ve been consistently clear in my responses- oversight of an organization such as Bellosguardo is a state function, not a city function. Just as you don’t see the benefit of providing a written version of your allegations or concerns, I don’t see the need to keep repeating the same response, so I’ll not be replying again.

Petitioner emails Council Member Mike Jordan July 5, 2023

Hello, in email to Ms. Barber you mention you check in with Mr. Lindaman every several months to make sure City is processing his project as quickly as possible. This implies already back-dated City records detailing the narrative of what exactly is going on with the trust. Please forward those records and/or direct me to the City office/desk I may view them.

Reply from Council Member Jordan July 5, 2023

Sorry, I have no idea what implications you are referring to, they are your own. 

If you are interested in written city records, I have no role in that process. I personally have no written records between me and Mr. Lindaman, but you are welcome to pursue them all you want. 

Petitioner replies to Council Member Jordan July 5, 2023

Did not ask your role, asked what department/desk would have record of your alleged permit processing by City. This is a true and valid email which can and may be used in a court of law.

Council Member Jordan does not reply.

The Beneficiary

Not to be forgotten, the beneficiary in this matter is the public. The people of California and beyond have never had offers by the foundation to assist in opening Bellosguardo for the people’s enjoyment. Based on comments to posts on social media it appears the City is filled with individuals who would be happy to volunteer their time in this matter. The people look to the Court for relief in this matter.

California Code §100. Sovereignty in the people; Writs and processes(a) The sovereignty of the state resides in the people thereof, and all writs and processes shall issue in their name. (b) The style of all process shall be “The People of the State of California,” and all prosecutions shall be conducted in their name and by their authority.

NextDoor commentary (ATTACHED)

The Petitioner

Petitioner is a professional artist and educator and has special interest above and beyond the public at large. (ATTACHMENTS)

The Santa Barbara Bowl

(ATTACHMENTS)

The Court

Fortunately, all laws are composed of letter and spirit. Article 6 Section 10 of this state’s Constitution authorizes Court jurisdiction in Writs so Court can exercise its extraordinary power in cases were all other remedies have failed, and primarily when public is beneficiary in the matter.

Section §166 - Judges of superior courts

(a) The judges of the superior courts may, in chambers:

(1) Grant all orders and writs that are usually granted in the first instance upon an ex parte application, and hear and dispose of those orders and writs, appoint referees, require and receive inventories and accounts to be filed, order notice of settlement of supplemental accounts, suspend the powers of personal representatives, guardians, or conservators in the cases allowed by law, appoint special administrators, grant letters of temporary guardianship or conservatorship, approve or reject claims, and direct the issuance from the court of all writs and process necessary in the exercise of their powers in matters of probate.

(2) Hear and determine all motions made pursuant to Section 657 or 663.

(3) Hear and determine all uncontested actions, proceedings, demurrers, motions, petitions, applications, and other matters pending before the court other than actions for dissolution of marriage, for legal separation, or for a judgment of nullity of the marriage, and except also applications for confirmation of sale of real property in probate proceedings.

(4) Hear and determine motions to tax costs of enforcing a judgment.

(5) Approve bonds and undertakings.

(b) A judge may, out of court, anywhere in the state, exercise all the powers and perform all the functions and duties conferred upon a judge as contradistinguished from the court, or that a judge may exercise or perform in chambers.

Ca. Civ. Proc. Code § 166

Amended by Stats 2002 ch 784 (SB 1316),s 34, eff. 1/1/2003.

Section 166.1 - Commentary by judge in interlocutory order Upon the written request of any party or his or her counsel, or at the judge's discretion, a judge may indicate in any interlocutory order a belief that there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation. Neither the denial of a request for, nor the objection of another party or counsel to, such a commentary in the interlocutory order, may be grounds for a writ or appeal.

Ca. Civ. Proc. Code § 166.1

Added by Stats 2002 ch 708 (AB 2865),s 1, eff. 1/1/2003.

Writs of Mandate or Prohibition

A writ of mandate lies to "compel performance of an act which the law, especially enjoins, as a duty resulting from office, trust, or station….Code Civic Proc.,1085 “The writ must be issued in all cases where there is not a plain speedy and adequate remedy in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested. (Code. Civic Proc., 1086)

In order to obtain writ relief, a petitioner must show: 1) a duty on the part of the respondent and 2) that the petitioner has a beneficial interest in compelling the performance of that duty and 3) the inadequacy of other legal remedies.

Proceedings for writ of mandate/prohibition are governed generally by the Cal. Const., art. VI

§ 358.11 Courts and commentators have characterized writs of mandate/prohibition as “prerogative writs” that is a court order requiring the performance of a specified act,

Writs may issue to compel performance of a mandatory duty if there is a clear legal right in the person seeking relief.

A writ of mandate may be issued only on verified petition of a party beneficially interested [Code Civ. Proc. § 1086]. A particular private interest constitutes a sufficient beneficial interest. Thus, a person who has some special interest to be served or some particular right to be protected has such a beneficial interest under Code Civ.  §  1086

Public Interest  Exception:

§ 358.31 To obtain a writ of mandate petitioner must generally show a duty on the part of the respondent, the petitioner’s beneficial interest in compelling the performance of duty.

“issued by the exercise of the extraordinary power of the court” [Black’s 1441, 1442 5th ed.]

§ 358.15

When a petitioner is in doubt concerning the type of writ to seek, it is proper to pray for relief in the alternative form. This follows from the modern principle of pleading that neither mislabeling nor defective prayer will bar relief justified by proper allegations and proof.

358.31 [4]

A writ of mandate must be issued in all cases when there is not a plain, speedy, and adequate remedy in the ordinary course of law [Code Civ. Proc. 1086] The showing that there is not plain, speedy, and adequate remedy at law is therefore crucial to obtaining issuance of a writ of mandate.

Cal Civ. Writ Practice: § 2.5 traditional mandate is most often sought to compel a clear, present, and usually ministerial duty on the part of the respondent.

Cal Civ. Writ Practice: Duty to Exercise Discretion §2.8 If a non-judicial body or entity, or an official or employee, has a clear duty to exercise discretion, but refuses to do so, mandate will lie to compel the exercise of that discretion. (Ellena v. Department of Ins. (Oct. 1, 2014, A137268) 2014 Cal App Lexis 883, *9.

Cal Civ. Writ Practice: § 2.9 abuse of discretion, although mandate will not lie to control the exercise of discretion in a particular way, it will issue to correct an abusive discretion. Saleeby v. State Bar (1985) 39 C3d 547, 562

Cal Civ. Writ Practice: § 2.13 beneficial interest, requirement relaxed when public right is at stake. The beneficial interest requirement is relaxed somewhat when a public right is at stake. Green v Obledo (1981) 29 C3d 126, 144

Inadequacy of Legal Remedy: A writ of mandate must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law [Code Civ. Proc. §1086; Phelan v. Superior Court (1950) 35 Cal. 2d 363, 366, 217 P.2d 951

Writ to Compel Action by public official:

A writ of mandate is proper to compel a government official to perform a ministerial act California Educational Facilities Authority v. Priest (1974) 12 Cal. 3d, 593, 598, 116 Cal. Rptr. 361, 526 P.2d 513

A public official’s functions are ministerial when a statue requires him or her to perform a prescribed act on a prescribed contingency (California Association of Professional Scientists v. Department of Finance (2011) 195 Cal. App. 4th 1228, 1236, 125 Cal. Rptr. 3d 328

Summary & Declaration

Of all the working ends in the tangled mess, the Court is key end to unravelling it, and the only thing worse than a tangle, is one pulled into an incomprehensible knot. The Constitution of the State of California itself, and California Codes, and elsewhere, label the power of the Court as extraordinary, and here is an extraordinary case requiring extraordinary power for justice to be served.

The foundation does not own Bellosguardo as many surmise, it administers according to decedent’s wishes. In metaphor, before the nuclear age, a Steam Ship required a captain at helm to steer course and other humans below, shoveling fuel into a configuration to create steam and propulsion. The director of a foundation’s board is captain, and its other members are officers shoveling fuel. When Ms. Clark passed and word was out early 2000s that Bellosguardo was to be dedicated to arts and arts education, Petitioner and any other resident of Santa Barbara aware, was thinking full stream ahead. Over ten years late, allowing $100+ tours to view a museum snapshot of twentieth century history, some may argue is all the steam Bellosguardo warrants. Yet, with another board—another captain and crew—things could open up to not only preserve a space as snapshot/museum experience, but also lectures and public forums, literary arts and education, theatre arts and education, music arts and education, visual arts and education. Ms. Clark and her sister both practiced the arts, and were proficient and commendable, would the foundation have the people of California believe she wanted Bellosguardo to be a museum piece of her era, rather than a public space for arts and arts education? Everything the foundation has done up to now runs counter to what logically would be done if goal was to ensure Bellosguardo not only becoming an international destination for arts/arts education, but perpetual source of revenue for the City. For almost ten years the foundation has communicated nothing other than messaging it's going to take an arbitrary amount of time and effort before Bellosguardo opens to the public. Lindaman’s public comment even acknowledged that lack of communication resulted in "negative speculation and confusion" yet the foundation has persisted for five years in communicating no information and/or outreach. The actions and/or lack thereof by the current foundation are so palpably unreasonable as to border on the obscene.

The City Council continues to stand by the notion there is nothing it can do. Even it that were true, which it is not, then why hasn’t the City Council initiated discussion with the Attorney General? Surely, after twelve years since Ms. Clark passed, and countless local reports through in that time of the City being “slapped in the face” by the foundation, someone in City Hall would have suggested it.

Petitioner understands that if decedent had left Bellosguardo to educate people about the history of sailing vessels and construction, every professional shipwright in the region could claim a special interest above and beyond the public at large in regards to what does or does not take place at Bellosguardo. Petitioner is a professional artist and educator and has special interest above and beyond the public at large in this matter. Petitioner now brings the Attorney General before the Court in this matter.

The silence and mysterious ineffectuality of the foundation, the City Council, and the Attorney General, regarding decedent’s wishes in twelve years since she passed is probable cause two or all three entities are colluding.

Verification I, John De Herrera, am the Petitioner. I have composed above verified petition for a writ of mandate or prohibition § CCP1085 and am familiar with contents. I declare, open to penalty of perjury under laws of the state of California, that the above is true/correct and that this verification is executed in Santa Barbara, California.

Date:

§ § §

Memorandum

Authority 1) Constitution of the State of California: Article VI, Section 10: “The Supreme Court, courts of appeal, superior, courts, and their judges have original jurisdiction in habeas corpus proceedings. Those courts also have original jurisdiction and proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition."

Point: this court has jurisdiction in this matter.

Authority 2) CCP 1085: “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office, to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person."

Point: this court has jurisdiction in this matter.

Authority 3) CCP 410.10: “A state has power to exercise judicial jurisdiction over a foreign corporation, which does business in the state, with respect to causes of action, arising from the business done in the state, and with respect to causes of action that do not arise from the business done in the same state if this business is so continuous and substantial as to make it reasonable for the state to exercise such jurisdiction.”

Point: the Bellosguardo foundation is doing business in the state and is under this courts jurisdiction. Reasonable for the state to exercise jurisdiction.

Authority 4) CCP 410.10 “A State has power to exercise, judicial jurisdiction over a foreign corporation that is owned, used, or possessed, an immovable thing, or chattel in the state, with respect to any cause of action, arising from the immovable thing, while it was owned, used, or possessed by the corporation, or arising from the chattel, while it was in the state, and was so owned, used, or possessed, unless the nature of the chattel and of the corporation’s relationship to the state, make the exercise such jurisdiction unreasonable.”

Point: Bellosguardo estate is a public trust composed property and an immovable limestone manse, located in Santa Barbara county, and subject to this court’s jurisdiction.

Authority 5) 410.10: “At state has power to exercise judicial jurisdiction over a foreign corporation which has consented to the exercise of such jurisdiction."

Point: By agreeing to administer a public trust in Santa Barbara County, respondents, the foundation has consented to this court’s original jurisdiction in this matter.

Authority 6) Traditional mandate lies to the court compelling various things, including non-governmental entities to perform legal duties (Lee v. Blue Shield (2007) 154 CA 4th 1369, 1378 Dedrick v. California Whaling Co. (1936) 16 CA2d 284, 288), and/or compelling the examination of corporate property and books/records (Hobbs v. Tom Reed Gold Mining Co. (1913) 165 C 497, 502, Johnson v. Langdon (1902) 135 C 642, 625).

Point: This court can exercise its powers in this matter, including, but not limited to mandating the Bellosguardo foundation, open the estate to the public on a limited basis, and/or compelling examination of all its records, including purported meetings.

Authority 7) Te courts have in the past compelled, elected officials to carry out ministerial duties. Save the Welwood Murray Memorial Library Committee v. City Council of the City of Palm Springs (1989) 215 3rd 263, 896 and City of Dinuba v. County of Tulare (2007) 41C 4th 859, 868.

Point: This court has the authority to compare to compel the mayor and city council of Santa Barbara, to carry out a ministerial duty in the interest of the citizens of the city of Santa Barbara, in particular, and the public in general, e.g. to schedule, duly inform, and schedule public hearings on Bellosguardo.

Authority 8) CCP 2.1: In addition to ensuring that the challenged action or decision is the kind reviewable by traditional mandate, a petitioner also must satisfy two threshold requirements for rent relief: a beneficial interest in the outcome of the proceeding, concomitant to the duty to be performed, and having exhausted plane, speedy, or adequate legal remedy.

Point: Petitioner has attended public comments, and/or sought out via email, and/or phone, and or formally requested elected officials to act regarding the circumstances surrounding Bellosguardo. In addition, Petitioner files this very red as further instance as to plane, speedy remedy of requesting elected officials to exercise their powers to act in the public interest.

Authority 9) California courts have relaxed the "beneficial interest" requirement in cases involving the public interest. Where a public right is at stake in the object of the writ is to preacher enforcement of a public duty or execution of law, a Petitioner need not show any "legal or special interest" in the result; it is sufficient that the Petitioner is "interested as a citizen in having the laws executed in the duty in question enforced." (Save the Plastic Bag Coalition v. City of Manhattan Beach) 52 C4th 166.

Point: Petitioner is a citizen interested in having laws executed and duties in question enforced, and therefore has standing in this court.

Authority 10) CCP 5142: Actions to remedy breach of a charitable trust; who may bring action: (4) "a person with revisionary, contractual, or property interest in the assets, subject to such a charitable trust."

Point: City Council has contractual obligation to serve the City’s interests and not to have brought actions upon reading March 22, 2018 publication, Bellosguardo: Legacy in Limbo detailing failed discretion of the foundation.