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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). T his opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

THE SUPERIOR COURT OF RIVERSIDE COUNTY,

Respondent;

WILLIAM J. HEALEY III et al

.,

Real Parties in Interest. E059852

(Super.Ct.No. INC1100102)

OPINION

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

Petition is granted in part an d 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.2 DISCUSSION

In this matter we have revie wed 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 settl ed 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 determin e 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 r eal parties’ time and effort. (See Lilienthal &

Fowler v. Superior C ourt (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 corporation s, 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 pet itioners 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

.3

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 t he 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 litigati on 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

the reof.

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 is sue 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 othe r respects the petition is denied.4

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 ju stice

, 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.