Modification: San Diegans for Open Government v. Fonseca

SAN DIEGANS FOR OPEN GOVERNMENT,

Plaintiff and Appellant,

v.

JULIO FONSECA,

Defendant and Respondent.

No. D077652

California Courts of Appeal

Fourth Appellate District

Division One

Filed June 8, 2021

ORDER MODIFYING OPINION

AND DENYING PETITION FOR REHEARING

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on May 19, 2021, be modified as follows:

1. On page 15, footnote 6 is deleted and a new footnote 6 is inserted as follows:

We note SDOG in passing also contends that it has standing under common law standing principles even if section 526a is inapplicable. Because the instant case is not a suit against a government body (i.e., District) involving fraud, collusion, ultra vires or a failure to perform a duty specifically enjoined, but instead an action against an individual (i.e., Fonseca), we conclude SDOG lacks common law standing. (See California Dui Lawyers Association v. California Department of Motor Vehicles (2018) 20 Cal.App.5th 1247, 1264 [concluding " 'common law authority for taxpayer suits [states] that a "taxpayer in his representative capacity can sue a municipality only in cases involving fraud, collusion, ultra vires, or a failure on the part of the governmental body to perform a duty specifically 

enjoined," ' " (italics added)].) We also conclude SDOG lacks standing under the public interest exception to standing, as this exception "has been judicially recognized only in certain mandamus proceedings and not as an exception to standing under section 526a." (Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865, 873.) In light of our decision and this footnote, we decline to address other issues raised by the parties.

There is no change in the judgment.

The petition for rehearing is denied.

BENKE, J.