Herron v. San Diego Unified Port Dist. CA4/1

Filed 11/4/26 Herron v. San Diego Unified Port Dist. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA MATTHEW V. HERRON, D087310 Plaintiff and Appellant, (Super. Ct. No. 24CU005686C) v. SAN DIEGO UNIFIED PORT DISTRICT, Defendant and Respondent. APPEAL from a judgment of the Superior Court of San Diego County, Matthew C. Braner, Judge. Affirmed. Matthew V. Herron, in pro. per., for Plaintiff and Appellant. Klinedinst PC, Greg A. Garbacz and Theodore S. Wolter for Defendant and Respondent. Matthew V. Herron appeals from a judgment entered in favor of the San Diego Unified Port District (the Port District) following its successful demurrer to his petition for writ of mandate. This is the latest in a series of legal actions attacking the Port District’s management of public tidelands on and surrounding Coronado. In this case, Herron seeks to force closure of the Feast and Fareway restaurant at the Coronado Municipal Golf Course (the Golf Course) by asserting that the Port District has abdicated its ministerial duty to manage the tidelands by allowing Feast and Fareway to operate, allegedly in violation of a term in the Ports District’s lease of the land to the City of Coronado (the City). We conclude that the trial court correctly determined that the courts do not have jurisdiction to interfere with the Port District’s broad discretion over such matters and affirm the judgment of dismissal. I. FACTUAL AND PROCEDURAL BACKGROUND Since 1962, the Port District has controlled and managed the tidelands and submerged lands of San Diego—including the land underlying the Golf Course—in accordance with the San Diego Unified Port District Act (Deering’s Ann. Harb. & Nav. Code (2017 ed.) appen. I, § 1, p. 770) (the Act).1 (See Herron v. San Diego Unified Port District (2025) 109 Cal.App.5th 1, 8 (Herron).) As another panel of this court recently explained, “[t]he City currently leases the Golf Course from the Port District pursuant to a 1997 lease and its subsequent amendments, for a term ending on January 31, 2039 (the Golf Course Lease). The Golf Course Lease specifies the allowed uses of the premises: ‘[The City] agrees that the leased premises shall be used only and exclusively for the construction, operation, and maintenance of a public golf course open and available for use by the general public including driving range, pro shop, golf cart rental, and snack bar including the sale of alcoholic beverages, and for no other purposes whatsoever. . . . [The City] further agrees not to construct or operate any hotel, motel, restaurant, or cocktail 1 Respondent’s unopposed request to take judicial notice of the Act, filed on May 4, 2026, is hereby granted. (See Evid. Code § 451, subd. (a).) 2 lounge on the premises or in conjunction with said golf course.’ ” (Herron v. City of Coronado (Apr. 10, 2024, D081462) [nonpub. opn.]) In 2018, the City contracted with Feast and Fareway, LLC to provide food and beverage services at the Golf Course. In 2020, Herron’s late wife, Denise Herron, filed a complaint against the City seeking a declaration that the concession agreement under which Feast and Fareway operates was void and illegal because it violated the terms of the Golf Course Lease, and thus, the public trust. The trial court granted summary judgment in favor of the City and this court affirmed. In doing so, this court rejected Denise Herron’s contentions that the City was acting as a trustee of the public trust and that “she may ‘protect the public trust by suing third-parties who are [allegedly] harming it,’ without involving the Port District.” (Herron v. City of Coronado, supra, D081462.) In the matter now before us, on August 13, 2024, Herron filed a petition for writ of mandate against the Port District attacking Feast and Fareway’s right to operate on similar grounds. The Port District filed a demurrer, Herron filed an amended petition, and the Port District again demurred. In the operative amended petition for writ of mandate, Herron asserts that the Port District “has breached and continues to breach the public trust.” As in his wife’s prior litigation, Herron contends that the City’s agreement with Feast and Fareway violates both the Golf Course Lease and the public trust by allowing for the operation of a restaurant and private event space. In addition, Herron points out that the City is receiving rent from Feast and Fareway, while paying “nothing” to the Port District. Herron alleges that “[t]his agreement and use of the [Golf Course] property violates the common law and statutory duties imposed on the Port [District] as trustee, including the duty of loyalty, the duty to administer the trust solely in the interests of 3 the public and the duty of impartiality.” He alleges further that the Port District has breached the public trust by refusing to take any action against the City based on its alleged violation of the Golf Course Lease. Based on the foregoing allegations, Herron asks the trial court to order that the City either cease its prohibited operations or pay market rent for use of the Golf Course land. In its demurrer, the Port District argued that Herron “lacks standing to enforce a lease to which he is not a party”; that his only request for relief is a request for “traditional mandamus ordering the District to terminate the restaurant and event center at the golf course”; and that “the Court lacks jurisdiction to direct the [Port] District in its exercise of legislative discretion in the use of public trust lands.” The trial court sustained the demurrer without leave to amend. The trial court found that Herron was seeking traditional mandamus under Code of Civil Procedure section 1085, and that his request was “founded on application of the Public Trust Doctrine, which ‘necessarily involves the exercise of discretion by state agencies,’ and ‘[t]his inherently discretionary doctrine generally does not allow for intervention by the courts other than in the context of judicial review of administrative decisions.’ (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 21–22; see also Herron, supra, 109 Cal.App.5th at p. 10; Center for Biological Diversity, Inc. v. FPL Group, Inc. (2008) 166 Cal.App.4th 1349, 1371 [‘Intervention by the courts, other than by exercising oversight over the administrative process and ensuring that proper standards are applied, not only would threaten duplication of effort and inconsistency of results, but would require the courts to perform an ongoing regulatory role as 4 technology evolves and conditions change. All of these factors call for abstention.’].)” The trial court concluded further that Herron “failed to plead or even identify a ministerial [(i.e., nondiscretionary)] duty [the Port District] failed to perform,” and that “public agencies and their agents have ‘no special duty to carry out the terms of contracts,’ and thus there is no ministerial duty to be enforced through a petition for writ of mandamus.” Herron filed a timely notice of appeal. II. DISCUSSION Herron asserts that the trial court was “misled” by the Port District’s arguments and that his petition does allege a breach of the Port District’s ministerial duty to manage the Golf Course property for the public trust. We are not persuaded and, instead, find the trial court’s analysis to be sound. This court recently addressed a similar issue in Herron, supra, 109 Cal.App.5th 1, in which Herron filed a petition for writ of mandate alleging that the Port District breached the public trust doctrine by leasing coastal tidelands to the Coronado Yacht Club for the purpose of operating a private club. As here, the trial court sustained a demurrer without leave to amend. (Id. at p. 5.) We explained that our review of an order sustaining a demurer is de novo, and, on our own independent review, affirmed the judgment of dismissal. (Id. at pp. 6–7, 13.) In doing so, we concluded that Herron could not establish a claim for traditional mandamus based on the Port District’s discretionary decision to enter into a lease of similarly situated public trust lands, and that the Port District had discretion to lease the tidelands under its control “ ‘for any and all purposes that do not interfere with commerce or navigation. ([Harbors and Navigation Code] § 87, subd. (b), p. 817, italics added.)’ ” (Herron, supra, 109 Cal.App.5th at pp. 9–10.) 5  Herron now contends that the Port District breached its ministerial duty to manage the tidelands underlying the Golf Course because it has failed to enforce a provision of the Golf Course Lease precluding the City from operating a restaurant on the leased land. As an initial matter, we note that the same lease does allow the City to operate a “snack bar including the sale of alcoholic beverages.” The evaluation of the relative strength of a claim asserting that the City is violating the lease by allowing Feast and Fareway to operate a “restaurant” as opposed to a snack bar with alcoholic drinks, and, more importantly, whether the Port District wishes to attempt to enforce that claim, are discretionary decisions for the Port District. Moreover, the terms of the Golf Course Lease simply represent an agreement between the parties; they do not establish whether a given use of the land does or does not serve the public trust. As the trial court correctly determined, Herron has no standing to enforce the provisions of a lease to which he is neither a party nor a direct beneficiary. (See 300 DeHaro Street Investors v. Department of Housing & Community Development (2008) 161 Cal.App.4th 1240, 1254 [“ ‘the law imposes upon municipal corporations and their officers no special duty to carry out the terms of contracts or to refrain from breaches of contractual relations’ ”].) Herron does not seriously contend otherwise on appeal. Rather, Herron asserts that the Port District “abandoned its ministerial duty” by allowing the City to enter into an agreement that violated the Golf Club Lease. But Herron does not provide any authority suggesting that the Port District’s decision not to enforce a lease term violates the public trust, or that the operation of a restaurant on public trust land itself constitutes a violation of the public trust. (Cf. Herron, supra, 109 Cal.App.5th at pp. 9–10 [lease of public trust land to private yacht club 6 was not a violation of the public trust].) Thus, Herron also cannot rely on the Golf Course Lease to establish a claim that the Port District has wholly abandoned its ministerial duty to manage the lands for the benefit of the public trust. Herron cites several cases in which he asserts the courts considered claims that a proposed use or contract with a public agency regarding the use of public lands breached the public trust. However, as in Herron, he fails to appreciate key differences in the questions at issue and procedural postures in each case. (See Herron, supra, 109 Cal.App.5th at pp. 11–12.) National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 addressed a suit seeking to enjoin permits issued by the municipal water board for diversion of water from a lake based on a claim that the diversions were causing actual harm to the underlying public trust lands and waterways. (Id. at p. 425.) The court concluded that “the public trust doctrine . . . protects navigable waters from harm caused by diversion of nonnavigable tributaries,” (id. at p. 437) and held that the water board ought to consider the “scenery, ecology, and human uses of Mono Lake” in making allocation decisions. (Id. at p. 447.) In San Francisco Baykeeper, Inc. v. State Lands Commission (2015) 242 Cal.App.4th 202, Baykeeper filed a petition for writ of mandate challenging the State Lands Commission’s (SLC) decision to approve a sand mining project on sovereign lands based, in part, on a claim that the SLC failed to consider its duty to the public trust. (Id. at pp. 210, 234.) Although not explicitly stated, it appears to involve a timely administrative challenge to the project approval. (Id. at p. 215.) Citizens for East Shore Parks v. State Lands Commission (2011) 202 Cal.App.4th 549 similarly involved an administrative challenge to a lease renewal. 7  Finally, in Zack’s Inc. v. City of Sausalito (2008) 165 Cal.App.4th 1163, the court considered “whether a city can lawfully lease a portion of a dedicated public street to a private party for a commercial purpose.” (Id. at p. 1170.) Although the court considered the fact that the land under the street were tidelands that had been granted to the city pursuant to the common law public trust, the court’s decision relied primarily on statutory law governing the closure of streets. (Id. at p. 1183.) None of the foregoing cases suggest that a private citizen can use traditional mandate to enforce an alleged violation of a third-party lease agreement in the absence of any stated harm to navigable waters, or any allegation that the Port District failed to even consider its duty to the public trust. Notably, Herron makes no claim in the present petition that the public trust lands underlying the Golf Course are being harmed, abandoned, or otherwise left in a state of disrepair. To the contrary, Feast and Fareway provides a space for those utilizing the golf course, and other members of the local community, to gather, eat, and drink, and provides an additional benefit to members of the public wishing to use it for weddings and other private events, outside regular business hours. Any revenue received by the City as a result of these services and benefits may be used to maintain or improve the public golf course and any other associated public amenities. In sum, Herron has not established that leasing, or subleasing, a portion of the tidelands for the operation of a commercial establishment offering food, beverages, or private event services is a violation of the public trust. Nor has he established that the Port District violated the public trust by failing to enforce a single term of its lease agreement with the City. 8  III. DISPOSITION The judgment is affirmed. Respondent is entitled to costs on appeal. KELETY, J. WE CONCUR: DO, Acting P. J. CASTILLO, J. 9