Reply to Attorney General's Demurrer

 Regarding Bellosguardo successfully filed and served; hearing October 4.

    September 6, at initial hearing in this case, the court inquired if the Attorney General had been served and there is reason for that inquiry: After filing writ with the Anacapa Division August 3 Petitioner drove to downtown Los Angeles to have the Los Angeles County Sheriff serve the Attorney General at its office at 300 South Spring Street. At the LA County Sheriff’s desk, upon presenting the stamped legal document to be served, Petitioner was told, “We don’t serve these.” Petitioner reminded clerk the writ was a matter of civil procedure and due process, and after almost an hour of Petitioner standing ground, a supervisor finally allowed service (ATTACHED A). Petitioner then received from Attorney General a copy of the writ with letter “Return Of Documents Delivered To The Office Of The Attorney General” stating service was improper and/or incomplete (ATTACHED B). Petitioner then left multiple messages over multiple days with Ms. Ochoa, acting service deputy for that office, requesting to know how service was improper/incomplete, all of which were not returned. After more attempts, navigating automated prompts on multiple days, Petitioner was finally able to speak with a representative to ask what the Attorney General meant in its letter: did the LA County Sheriff improperly serve the Attorney General or is an extraordinary writ only to be filed at its Sacramento office? Petitioner was told he must hire an attorney to find out. Petitioner found nothing precluding an extraordinary writ from being served at its Los Angeles office; Petitioner was unsure if Attorney General would be present 10:00 AM September 6.

    The Attorney General’s initial step in this proceeding was deceit—returning a document copy, stating it original—and then further being evasive and adversarial after years of attempted contact about this matter by Petitioner.

Response To Attorney General’s Demurrer

    In its demurrer the Attorney General argues the writ petition is “vague, ambiguous, and unintelligible” (Page 7, Line 13), when in fact the petition shows unto the court:

    1) A statement/narrative of facts, showing where all plain/speedy remedies in the ordinary course of law have been exhausted repeatedly over the years, and still to this day, are denied.

    2) A brief summary of parties involved in this case and how they relate.

    3) A brief summary of the writ process and how it relates to this case.

    4) A declaration/prayer/orders/memorandum.

    While Petitioner concedes petition might have been perfected further—and Petitioner does wince at points upon review—but after several weeks in the Santa Barbara County Courthouse law library Petitioner had run out of mental and emotional steam; composing the writ currently before the court had been an incessant rumination and Petitioner gave it all he had.

    The Attorney General states the writ contains conspiracy theories about the government (Page 7, Line 18), when Petitioner was simply pointing out how odd that both the Santa Barbara City Council and Attorney General insist the foundation is a private foundation when it is a trust for the public, further insisting there is nothing to be done unless or until a ministerial duty can be identified.

    The Attorney General’s demurrer argues Petitioner’s pleading does not demonstrate facts sufficient for standing and writ does not demonstrate facts sufficient to constitute a cause of action, and that nonetheless, the court lacks jurisdiction—all of which is untrue.

    Since there is usually no one willing to assume the burdens of legal action, or who could properly represent the interests of a trust for the public, the Attorney General has been empowered to oversee charities as representative of the public, a practice having its origin in the early common law. There is no rule or policy against supplementing the Attorney General’s power of enforcement by allowing other responsible individuals to take action on behalf of a trust and that is who Petitioner is: a responsible individual with a special interest distinguishable from the mass of the community, taking action on behalf of a charitable trust and beneficiary.

    Standing

    

    According to decedent’s wishes, the purpose of Bellosguardo was and still is to be used “primarily to foster and promote the arts.” (Writ Exhibit A) The foundation’s certificate of incorporation, required for it to exist at all, states: “The purposes for which the [foundation] is formed and shall be operated are to engage in exclusively charitable, literary, or educational activities of any kind or nature whatsoever, and in furtherance of the foregoing charitable purposes, the [foundation] shall…consistent with the charitable purposes expressed in the Last Will and Testament of Huguette M Clark, foster and promote the visual, audio, literary, performance, and other arts….” (Writ Exhibit C). To make clear, Bellosguardo is a real property, the purpose and use of which is set and bound by law, certified legal documents, and signatures.

    Petitioner demonstrates in the pleading that he has practiced, participated in, and educated about the arts his entire life, all the while accomplishing notable achievements in the arts. (Writ Page 18, Lines 11-26 & Page 19, Lines 1-10) If Petitioner does not have standing in a case focused on a charitable trust for the arts and arts education—the question arises—who does? Because the trust in question is designated for the arts, demonstrated facts show Petitioner is enjoined by law, above and beyond the public at large. Would the Attorney General have the court and the people of the State of California believe that an individual who has had visual works on view in city, county, and museum buildings, in addition to over a thousand works hanging in homes around the planet, not distinguishable from the mass of the community? Even more difficult to have abstract works accepted to Tri-County wide art calls, is to have poetry and prose accepted to collegiate literary journals, Petitioner has accomplished that too. Even more difficult than having poetry accepted to established journals, is completing and publishing literary fiction and translations of Shakespeare, which Petitioner has also accomplished. For some reason facts demonstrated in the writ are not yet cognizable to the Attorney General.

    Cause Of Action

    Cause of action are facts which entitle a party to relief with a right arising from those facts. This case is one in which, not only is there cause for action on behalf of Petitioner, there is also cause for action on behalf of the public; there is a special interest and a public interest at play in this case. The two are actually enjoined, and here: The beneficial interest requirement is relaxed somewhat when a public right is at stake (Green v Obledo [1981] 29 C3d 126, 144 1981).

    In regards to the public interest cause of action, the foundation received title and keys to the property a full ten years ago, and those behind the effort to acquire such were required to state what they intended to do with the property, in order to be conferred charitable trust status: “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….” (Writ Exhibit N, Page 2, Paragraph 1). An inspection of the property shows that nothing, not a single physical improvement, has ever needed to be done in order for the foundation to fulfill its stated intention to open Bellosguardo to the public.

    In regards to Petitioner’s special interest cause of action, he is being denied right to opportunity to exhibit or educate as a professional artist and educator at a real property designated by law to the arts and arts education.

    Court Jurisdiction

    

    The Attorney General argues the court has no jurisdiction in this case, yet CCP § 12591 states that “nothing 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 proceeding.” (Writ Page 30, Lines 15-19)

    In its demurrer the Attorney General invokes the separation of powers doctrine: “Generally, a branch of the government charged with the exercise of one power may not exercise that of another.” (Demurrer Page 8, Line 18-20). “Generally” implies exceptions and this case is one: if it shall be the duty of the Attorney General to see that laws of the State are uniformly and adequately enforced, and the Attorney General fails to do so in regards to a charitable trust—not only failing statues at large but page after page of its own guidelines—CCP § 12591 allows for that: in pursuit of justice it allows for the people of the State of California, through the judicial branch, to trump and remedy dereliction of a political/legislative office.

    Underlying CCP § 12591 is CCP § 166, stating judges of the superior courts may grant all orders and writs, hear and dispose of those orders and writs, require and receive inventories and accounts, grant letters of temporary guardianship, and approve bonds and undertakings. (Writ Page 28, Lines 17-22 to Writ Page 29, Line 4)

    The Attorney General in this case is causa causans—the causing cause, the primary cause, the principle cause, and the original cause, precisely because if the Attorney General had honored its duty to enforce the charitable trust in question, and that its board fulfill its obligation to realize wishes of decedent, Petitioner would not presently be denied the right to exhibit and/or educate as a professional artist/educator, and this writ would not exist. Yet, this writ does exist, the legal rights of the public and Petitioner are being denied, the Attorney General is now before the court, and the Anacapa Division has jurisdiction, not only over matters of a property less than five miles from the courthouse, but over the Office of the Attorney General of the State of California itself, due to fact all writ orders are issued in the name of the people of the State of California, not political/legislative offices.

    The writ of mandate is not to be issued on mere technical grounds, its design being to do substantial justice to prevent substantial injury. Neto v. Consuelho Amor da Sociedade No. 41 (1912) Cal App 18 Cal App 234, 122 P 973 1912

    Proceeding for writ of mandate is an equitable proceeding in which court is vested with wide discretion. Allen v. Los Angeles County Dist. Council of Carpenters (1959) 51 Cal 2d 805, 337 P2d 547 1959

    The decision whether to grant or deny a writ lies within the sound discretion of the court, and one of the chief considerations in the exercise of that discretion is the effect of the court’s order in promoting the ends of justice. McDaniel v. San Francisco (1968) Cal app 1st Dist, 259 Cal app 2d 356, 66 Cal Rptr 384 1968

    Conclusion

    On trial of the issues the Attorney General has unjustly refused to enforce the Charitable Trust Act in regards to the current board of the foundation. After years of either severe inadvertence or what appears to be constructive fraud, the hands of the current board of the foundation have become unclean and nothing short of ejection of the board will serve justice. Anything less than ejection of the board, along with its attitude and history, would only make this proceeding another inchoate offense and slap in the face of justice. The Attorney General in its demurrer attempts to up-end stare decisis of what constitutes a special interest, deny the beneficiaries of legal rights, and veto wishes of decedent. In addition the Attorney General in its demurrer attempts to up-end stare decisis regarding writ proceedings.

    At present it is common knowledge that unless one is lucky enough to get on the foundation’s wait list for a $100+ tour to view the dining room, only then will an individual be stepping foot on the property. A full decade since the board received title and keys the current state of Bellosguardo is oceans away from its primary purpose of fostering and promoting the arts as Ms. Clark wished, and as Dr. Chase would certainly agree.

    The Attorney General’s position in this case is a slap in the face to the thousands Santa Barbarians who to this day wonder if they will ever visit Bellosguardo for a memory of a lifetime, it is a slap in the face to the people of the State of California and public in general, it is a slap in the face to innumerable board members of charitable trusts throughout the State who follow the Attorney General’s guidelines, and it is a slap in the face of Ms. Clark and Dr. Chase; it is a slap in the face of justice itself.

    Finally, the orders in the writ are proposed orders based on what might best serve justice in this case. Petitioner does not need to be granted temporary guardianship of Bellosguardo, but does wholeheartedly insist the current board ought to be ejected because to not do so would only leave the rancor of which the board has caused to linger upon the gift to the public.

    Along with this Response Petitioner is filing a motion for the court and Respondent to briefly remove to 1407 East Cabrillo Boulevard to see first-hand that what this writ alleges is indeed fact. This case is one in rem, the property itself setting the character of the proceeding. A brief inspection of it will confirm a cause of action for the public. Will Petitioner be able to begin exhibiting and educating if the west gate is unlocked? Certainly not, it might take another year or two for opportunity at a proper and respectable exhibit at Bellosguardo, and Petitioner understands that, but that step in the public interest is indeed the first and most critical step to remedy Petitioner’s denied right. 

    In memorandum of writ a near two-dozen cases are cited as stare decisis in this type of proceeding (Page 34 Line 23 through Page 41, Line 12). The court cannot direct how discretion is to be applied but it can issue orders which in effect correct indiscretion. If justice is to be served by ejecting the board, the City Council also has unclean hands in this matter and one might argue it is the causa causans in the present and on-going injustice; ordering a special election for a new board, an undertaking allowed under CCP § 166, and trust modification allowed under CCP § 12591, will untie Bellosguardo from the past and in a natural progression of events set course to the promise of the gift, and right of all professional artists and art educators to be fully obtained.

    

    Motion To Briefly Remove Court And Respondent to 1407 East Cabrillo Boulevard

    Petitioner moves that the court and respondent briefly remove to the property in question in order to inspect and confirm that what Petitioner alleges is in fact the truth, that for ten years nothing has ever needed to be scrutinized or modified for the public to enjoy the property as a historic residence. Would the foundation and Attorney General have the court and the people of the State of California believe wheelchairs are unsafe on five acres of manicured lawn? Petitioner implores the court to briefly visit the property first-hand in order to confirm as fact what is alleged in this case.