60 Cal.App.5th 470
Cal. Ct. App.2021Background
- The Pioneer Monument (installed 1894) in San Francisco included the bronze sculptural group “Early Days,” criticized as demeaning to Native Americans.
- In Dec. 2017 the Arts Commission applied for a Certificate of Appropriateness (COA) to remove “Early Days” and store it; Planning staff concluded the removal was categorically exempt from CEQA.
- The San Francisco Historic Preservation Commission (HPC) granted the COA after a Feb. 21, 2018 hearing; the Arts Commission authorized removal; no CEQA appeal to the Board of Supervisors was filed.
- Schmid appealed to the San Francisco Board of Appeals; after rehearing the Board reinstated the COA on Sept. 12, 2018; the City removed “Early Days” pre-dawn on Sept. 14, 2018 and placed it in storage.
- Plaintiffs Schmid and Briggs sued alleging (1) Bane Act violation, (2) writ relief under CCP §§ 1085 & 1094.5 (challenging agency action and implementation), (3) taxpayer waste under CCP § 526a, and (4) declaratory relief; the trial court sustained a demurrer without leave to amend and dismissed with prejudice.
- The Court of Appeal affirmed, holding plaintiffs failed to plead actionable claims (no allegations of threats/coercion for Bane Act; administrative decisions were within authority and supported by substantial evidence; CEQA claims were forfeited for failure to exhaust; other statutory and trust-based theories lacked standing or legal basis).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Bane Act (Civ. Code § 52.1) | City and ARG deprived plaintiffs of First Amendment access to public art by removing statue, amounting to threats/intimidation/coercion | No allegations of threats, intimidation, or coercion; removal was government action within authority | Dismissed — plaintiffs pled no facts showing threats, intimidation, or coercion required by Bane Act |
| Administrative mandamus (CCP § 1094.5) — validity of COA | Board acted arbitrarily, discriminatorily, violated CAPA and federal preservation standards, created public nuisance, violated CEQA | Board and HPC acted within Charter authority; findings supported by substantial evidence; federal/federal-guideline claims unproved | Dismissed — Board’s decision supported by substantial evidence; discrimination and federal-law claims not pleaded against decisionmakers; public nuisance claim inadequately alleged |
| CEQA challenge / exhaustion | Categorical exemption improper; notice deficient so plaintiffs could not raise CEQA objections earlier | Plaintiff failed to timely appeal categorical exemption to Board of Supervisors and thus failed to exhaust remedies; any notice defect does not excuse missing required appeals | Dismissed — CEQA claims forfeited for failure to exhaust available administrative remedies (no timely appeal to Board of Supervisors) |
| CCP § 1085 writ — manner/timing of removal | Removal occurred immediately after Board decision, allegedly violating COA conditions (plaque, 72‑hour permit wait) and denying opportunity for emergency relief | Plaque drafting/installation and permit timing are not ministerial duties that would support mandamus; removal completed before suit so remedy moot | Dismissed — no clear ministerial duty alleged; claims moot or not curable by mandamus |
| Taxpayer waste (CCP § 526a) | Director unlawfully spent $150,000 to remove/store statue | Removal was discretionary Arts Commission action; § 526a not available to attack discretionary policymaking | Dismissed — § 526a cannot be used to challenge discretionary policy decisions |
| Leave to amend / § 1983 claim | Plaintiffs sought leave to replead to add § 1983 or additional facts (collusion, selective notice, permit expedite) | Trial court found proffered facts would not cure legal deficiencies; presumption of official good faith | Denied — no reasonable likelihood amendment could cure defects; dismissal without leave to amend affirmed |
Key Cases Cited
- Mahan v. Charles W. Chan Ins. Agency, Inc., 14 Cal. App. 5th 841 (Cal. Ct. App. 2017) (standard of review on demurrer; accept well-pleaded facts)
- Faulkner v. California Toll Bridge Authority, 40 Cal. 2d 317 (Cal. 1953) (conclusory legal allegations insufficient to survive demurrer)
- Cornell v. City & County of San Francisco, 17 Cal. App. 5th 766 (Cal. Ct. App. 2017) (Bane Act discussion in wrongful‑arrest context; coercion requirement)
- Gillan v. City of San Marino, 147 Cal. App. 4th 1033 (Cal. Ct. App. 2007) (Bane Act liability in arrest cases)
- City & County of San Francisco v. Ballard, 136 Cal. App. 4th 381 (Cal. Ct. App. 2006) (Bane Act dismissal where no coercion shown)
- Young v. City of Coronado, 10 Cal. App. 5th 408 (Cal. Ct. App. 2017) (standards for administrative mandamus review)
- Lubner v. City of Los Angeles, 45 Cal. App. 4th 525 (Cal. Ct. App. 1996) (interpretation of CAL. Civ. Code protections for artists)
- Cort v. St. Paul Fire & Marine Ins. Cos., 311 F.3d 979 (9th Cir. 2002) (VARA/CAPA rights are personal to the artist or heirs)
- Defend Our Waterfront v. State Lands Comm’n, 240 Cal. App. 4th 570 (Cal. Ct. App. 2015) (adequacy of notice and CEQA exhaustion principles)
- Tahoe Vista Concerned Citizens v. County of Placer, 81 Cal. App. 4th 577 (Cal. Ct. App. 2000) (exhaustion of administrative remedies is jurisdictional for CEQA claims)
- Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (U.S. 1977) (framework for inferring discriminatory intent from procedural departures and circumstantial evidence)
- Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (U.S. 2018) (bias by decision‑maker can invalidate administrative decision)