OSullivan v. City of San Diego

Filed 9/7/07 OSullivan v. City of San Diego 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of San Diego County, William C. Pate, Judge. Affirmed.

Defendant The City of San Diego (City) appeals a judgment awarding declaratory and injunctive relief to plaintiff Valerie O'Sullivan in her action to enforce the provisions of a 1931 trust grant by the Legislature, as trustor, to City, as trustee, of certain state tide and submerged lands adjacent to La Jolla (now known as the Children's Pool). On appeal, City contends: (1) O'Sullivan's action was barred by the California Tort Claims Act (Gov. Code,  810 et seq.) because she did not present a claim to City before filing her complaint against it; (2) her action was barred by the separation of powers doctrine; (3) the trial court erred by interpreting the terms of the 1931 trust; (4) the trial court erred by admitting certain evidence offered by O'Sullivan; (5) O'Sullivan's action was barred because she did not name an indispensable party as a defendant; and (6) the trial court erred by awarding O'Sullivan attorney fees pursuant to Code of Civil Procedure section 1021.5.^[1] Because we conclude City has not carried its burden on appeal to show the trial court prejudicially erred, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

On June 21, 1930, Ellen Browning Scripps requested permission from City to construct (at her expense) a concrete breakwater in the Pacific Ocean adjacent to La Jolla to create a bathing pool.^[3] On June 26, H. N. Savage, a hydraulic engineer, submitted to City drawings for construction of Scripps's proposed breakwater. On June 30, the City Council passed a resolution granting Scripps permission to construct the concrete breakwater.^[4] In September, the California Attorney General confirmed to Savage that only the Legislature could authorize construction of the breakwater, but until that legislative act could be obtained he (the Attorney General) would not take legal action to prevent construction of the bathing pool breakwater.

In September, construction of the 300-foot concrete breakwater began.^[5] It was completed in February 1931. On June 1, Scripps gave the breakwater and the resultant ocean water bathing pool to City. On June 11, the City Council adopted a resolution expressing its thanks to Scripps for her gift.

On June 15, the Governor signed an act of the Legislature (Stats. 1931, ch. 937, effective as of August 14) (the Trust), granting certain tide and submerged state lands (apparently consisting of the Children's Pool area) to City "to be forever held by [City] and its successors in trust for the uses and purposes and upon the express conditions following, to wit: [] (a) That said lands shall be devoted exclusively to public park, bathing pool for children, parkway, highway, playground and recreational purposes, and to such other uses as may be incident to, or convenient for the full enjoyment of, such purposes . . . ."^[6] For over 60 years thereafter, the Children's Pool remained open for its use and enjoyment by the people of City and others.

In 1992, harbor seals apparently first became a concern in the area, leading to the City Council's February 1993 ordinance creating a marine mammal reserve (Reserve) at Seal Rock, located about 100 yards from the Children's Pool, for a five-year period.^[7] That ordinance made the Reserve off limits to swimmers, divers, and tourists.^[8] In November, the California State Lands Commission (SLC) sent a letter to City's natural resources manager notifying her that the Reserve would violate the specific provisions of the Trust if public recreational uses were banned.^[9]

On October 1, 1997, the City Manager sent a report to City's natural resources committee regarding closure of the Children's Pool since September 4 as a result of high fecal coliform counts.^[10] Subsequent testing showed that water contamination was primarily from seal feces. The City Manager's report also noted the increase in the number of harbor seals in the area, which may have been caused by the establishment of the nearby Reserve and barriers erected by City lifeguards at the Children's Pool beach separating the public from seals that haul-out onto the sand. It also noted that because public health was potentially at risk, the federal Marine Mammal Protection Act (16 U.S.C.  1361 et seq.) (MMPA) allowed City to take noninjurious action to reduce or eliminate use of the Children's Pool by seals.

In December, the National Marine Fisheries Service (NMFS) sent a report to City advising it that the number of seals hauling out at the Children's Pool beach was increasing and that seals apparently preferred the Children's Pool beach over the Reserve for hauling-out. It noted that before establishment of the Reserve by City no seals or other animals were hauling out at the Children's Pool beach. It also stated the seals at the Children's Pool were "acclimating" to humans and the effectiveness of the Reserve as a seal sanctuary was questionable. Because the harbor seal population locally and statewide was healthy and increasing, the NMFS believed termination of the Reserve would have no adverse effect on seals.

In February 1998, the City Manager sent a report to City's natural resources committee on the closure of the Children's Pool. It noted that before 1994 the water quality at the Children's Pool met safe standards except on rare occasions. To reduce the contamination caused by seal feces, it recommended that the barriers be removed in the hope that seals would be less likely to use the Children's Pool beach if there were more human interaction. Also, it recommended a consultant be hired to develop a plan to open the sluiceways in the breakwater. It was believed opening the sluiceways would increase the amount of water in the Children's Pool, thereby diluting the concentration of feces in the water and reducing the size of the beach to discourage seals from using it. In May, the City Manager sent another report stating that removal of the barriers did not have the desired effect of reducing the seal population and recommending a return of the barriers separating seals from the public. It also stated that opening the sluiceways was feasible, but three-fourths of the beach sand would have to be removed to return it to its 1931 condition. Based on that report, the committee recommended to the City Council that action be taken to remove the sand and open the sluiceways.

In August 1998, City was notified by the Center for Disease Control (CDC) that seals can transmit diseases to humans.

In December, City requested the NMFS's authorization to remove sand from the beach, which could be considered incidental harassment of seals. City represented that the Children's Pool had been constructed to provide a sheltered swimming area for children. Because of gradual sand accumulation, the shoreline of the Children's Pool had advanced nearly to the end of the breakwater, resulting in very little protected area for recreational swimming. Its requested sand excavation would return the Children's Pool to its early 1940's condition.

However, on March 29, 1999, the City Council voted not to dredge the sand and not to "shoo" the seals, but to instead install a rope barrier to separate the seals and the public and refer the issues to committee for further review.

On October 19, the NMFS advised City it did not favor closure of public beaches to the general public because of harbor seals colonizing those beaches. The NMFS also disagreed with City's shared-use policy regarding the Children's Pool. It believed City should decide if the Children's Pool should be used by humans or seals, but not both.

On November 1, the City Council voted to make the Reserve permanent with a review in five years.

On November 4, the City Attorney sent a letter to the SLC inquiring whether it considered the closure of the Children's Pool or its usage for viewing seals to violate the terms of the Trust. In August 2000, the SLC responded, stating a small temporary seal reserve would not violate the general 1933 trust (but did not address the specific question of whether it would violate the Trust for the Children's Pool).

In February 2000, the NMFS notified City it was considering designating the Children's Pool as a harbor seal haul-out and rookery.^[11] In March, the California Fish and Game Commission advised City that City did not have authority to create a seal reserve on public trust tidelands.

In February 2003, the NMFS advised City that although City could not intentionally harass seals at the Children's Pool, it could undertake actions that might temporarily displace them (e.g., the proposed dredging project to improve water quality).

In March, the California Coastal Commission notified City that a coastal permit was required for the rope barrier at the Children's Pool beach that had been in place for four years and appeared to be permanent.

In June 2004, the City Manager sent a report to City's natural resources committee on the issue of seals at the Children's Pool, setting forth a plan to restore the Children's Pool to an unpolluted and safe condition. The plan primarily focused on dredging a substantial portion of the sand at the beach at an estimated cost of $250,000 to $500,000.^[12] The committee referred the City Manager's report to the City Council without a recommendation.

In August, City posted new signs at the Children's Pool, stating the rope barrier was a guideline to avoid disturbing the seals and that swimming was not recommended because of excessive bacteria levels.

On September 14, the City Council considered the Children's Pool issues. James Lecky of the NMFS advised it that harbor seals were a healthy species, increasing in number, and were not endangered or threatened as a species. In fact, the increase in the seal population was causing problems along the entire California coast, damaging property, and limiting public access to beaches. Lecky stated that City, pursuant to section 109(h) of the MMPA (16 U.S.C.  1361 et seq.) could move animals out of an area if they are a public nuisance or causing a public health hazard.^[13] His position was that the issue of seals at the Children's Pool was a local issue for City to decide. The City Council adopted a resolution directing the City Manager to initiate design and permit applications for the sand removal project with the goal of opening the Children's Pool for year-round use by humans. It also directed the City Manager to evaluate opening of the sluiceways as an alternative method to remove the sand and cause tidal flushing. It also directed that the rope barriers and signs be removed to allow public access to the Children's Pool and new signs be installed to state that public access is permitted, but seal harassment is a violation of the MMPA.

Since September 14, 2004, City has not taken any meaningful steps to return the Children's Pool to an unpolluted and safe condition for human use.

On March 12, 2004, O'Sullivan filed a complaint against City, asserting she brought the action as a private attorney general and alleging causes of action for breach of trust and breach of fiduciary duties. Her complaint sought declaratory relief, concluding City had breached its trust and fiduciary obligations under the Trust, and injunctive relief, requiring City to observe the terms of the Trust. After the trial court subsequently concluded the State of California must be joined as an indispensable party to her action, O'Sullivan filed a first amended complaint adding the State as a defendant. On June 9, 2005, the State filed a stipulation, agreeing to be bound by the judgment entered by the trial court.

In July and August, a bench trial was conducted in this action. On August 26, the trial court issued its 31-page statement of decision, making findings of fact substantially as discussed above and concluding City was in breach of the Trust and its fiduciary duties as trustee of the Trust. The court concluded the legislative intent of the Trust was clear, stating:

"When the one-plus acre [i.e., the Children's Pool] was entrusted [by the Legislature] to the City, it consisted of a breakwater and appurtenances that created a sheltered area of Pacific Ocean shoreline. This sheltered area was created so that children could safely swim in the ocean without being subjected to crashing waves, undertow and rip currents, all of which pose a danger to children and neophyte swimmers. The Trust was intended to convey to the City an artificial ocean water pool suitable for the use of children. As the recipient of the Trust and the Pool, it became the obligation of the City to maintain the Trust property in a manner suitable for its intended uses and purposes.

"Reference to the wording of the Trust further demonstrates the legislative intent. [Recites relevant portions of the Trust language quoted above.] Recognizing that a bathing pool for children existed on the land when the Trust was created and that the land was situated adjacent to a public park, and would be an extension of same, the legislative intent was clear. The entrusted land shall be used exclusively for a public park which includes a children's pool, and that the purpose of that use shall be recreational.

"The City contends that the Trust should be read broadly and the Legislature must have vested the City with discretion as fee owner and trustee in its management of the Trust to determine the uses that are most compatible with changing conditions and public needs. The City asserts that extrinsic evidence, including the survey of the Trust boundaries and the historical information related to Ellen Browning Scripps'[s] gift, confirms that the Legislature intended a broad reading of the Trust in which the Trust permits the use [of the Children's Pool] by both humans and seals. Other than [that] bald assertion, the City provides no evidence in support of its contention. Reading the Trust 'broadly' or 'narrowly' does not change the wording of the Trust, which is controlling.

"A local entity that is the recipient of trust property must use the property in compliance with the terms of the Trust. The City is a trustee of the property and as such ' "assumes the same burdens and is subject to the same regulations that appertain to other trustees of such trusts.' [City of Long Beach v. Morse (1947) 31 Cal.2d 254, 257.] The Trust is specific. It requires the Trust lands to be used for a children's pool. 'Children's pool' is listed in the conjunctive with the other permitted purposes and uses set forth in the 1931 grant. Any discretionary use by the City must be 'incident to, or convenient for the full enjoyment of, such purposes [plural].' If a use of the property is inconsistent with any of the purposes, it is not a permitted use.

"The Trust is to be used exclusively for a public park and children's pool. The presence or absence of marine mammals, or other animals for that matter, does not change the use of the beach and tidelands specified by the Trust grant. The use by the City of the Children's Pool as a habitat, animal sanctuary, zoo or seal watching facility that precludes its being used as a bathing pool for children would be outside the scope of the Trust."

In concluding City breached the terms of the Trust, the trial court stated:

"A comparison of photographs of the Pool when first constructed and today[] well demonstrates that the City has failed to maintain the trust property in a condition similar to when the property was conveyed. Photos demonstrate that the Pool originally was a pool of water sheltered by the breakwater and adjacent to a relatively small strip of sand beach. Today the beach extends out almost to the end of the breakwater. In effect, the breakwater no longer serves to protect swimmers and bathers in the water, but rather the sand beach has, over the years, filled in most of the Pool. [Citations.] In reality, Children's Pool is no longer a safe pool of ocean water for children to use.

"There also exists another safety issue at Children's Pool, and that is pollution. The evidence is [uncontradicted] that the water inside the breakwater is polluted and the public has been advised, from 1997 to the present, not to enter the water at Children's Pool because it poses a health risk. The evidence is also [uncontradicted] that the beach itself is a repository for sufficient amounts of seal feces to potentially pose a health hazard to persons, and particularly children, using the beach at Children's Pool.

"In its present condition, the land granted by the 1931 Trust is not suitable for the uses enumerated in the grant. Because of the unhealthy condition of the sand and water, the Children's Pool area is not suitable for use as a public park, bathing pool for children or a recreational area."

The court further stated:

"As the number of seals increased at Children's Pool, and with the constantly polluted condition of the Pool, the number of swimmers using the Pool since the early 1990's has decreased significantly. Public use of the Children's Pool has been severely restricted because of the presence of the seals and the resulting pollution.

"The next biggest cause of actual or constructive closure of the Children's Pool was the City's decision to erect a rope barrier cutting off public access to the Pool. On March 29, 1999, the City Council rejected the City Manager's recommendation to dredge the Pool and restore the Pool to the uses set forth in the Grant, and instead voted to rope off the Pool. In doing so, the City breached its obligations under the Trust, as trustee of the Children's Pool. . . . The rope remained up from March 1999 until September 17, 2004.

"Besides the official barrier established by the City to deny public access to the Children's Pool, the general condition of the Pool area, with seal feces in the sand, the occasional dead seal rotting on the beach until washed out to sea by a high tide, and the presence of warning signs, all served to deter the public, beneficiaries of the trust grant, from using the beach. To this day, numerous signs are posted in and about the area of the Children's Pool, warning the public that bacteria levels exceed safety standards and that swimming is allowed but not recommended. [Citation.] All of these factors, when taken together, conclusively establish that practically, as well as constructively, access to the beach has been denied to the intended beneficiaries of the trust grant, including children, swimmers, fishermen and the public generally."

Rejecting City's argument that the MMPA precluded it from removing seals from their natural habitat, the court stated:

"City has been repeatedly advised by its City Manager and NMFS that the City can take appropriate action to remediate the safety and health situation at Children's Pool without violating the MMPA. [] . . . Exceptions exist under  109(h) [of the MMPA], which permit such taking, even without a permit from the [United States] Department of Commerce, in the case of damage to public or private property, or threats to public health or safety by the animals or by non-lethal measures, should the marine mammals constitute a nuisance. The City knew as early as 1997 that under these exceptions it could deter the seals at the Children's Pool. [Citation.] The City voted to take no action to protect the Children's Pool."

In concluding City breached its fiduciary duties under the Trust, the trial court stated: "[T]he evidence is that the City has taken no steps to manage the property so as to preserve the Children's Pool for the purpose and uses for which [it] was constructed and granted to the City as trustee for the people of California." It further stated:

"The City has failed to preserve and protect the tidelands subject to the 1931 grant, to wit: the Children's Pool. [] There is no evidence the City has ever removed the sand build-up in the Pool since it has 'managed' the trust area. Likewise, since the Pool water became unsafe for human use in 1997, the City has taken no steps to eliminate the pollution in the Pool. There is no evidence before this court that removing the sand build-up or reducing the pollution level of the Pool water is impossible, or unreasonably difficult or expensive. To the contrary, the City Manager has recommended on numerous occasions that the City undertake these very steps of reasonable management, which the City has failed to do.

"Therefore, the court concludes that the 1931 Grant requires, at a minimum, the Children's Pool be reasonably available for the purposes and uses specified by the State of California in the Grant. This requires the City to manage and maintain the granted lands for the use of the people of California, the beneficiaries of the Grant. This includes swimming, fishing and related recreational pursuits. The Pool has not been available for such uses since 1997. The City has failed to restore the property for such uses despite the fact it has had the means and ability to do so. The City has breached its obligations as trustee under the 1931 Trust."

On October 4, the trial court entered judgment for O'Sullivan, stating:

"1. Plaintiff [i.e., O'Sullivan, as private attorney general under section 1021.5,] shall have judgment against Defendant [City] on her claim of breach of trust.

"2. Plaintiff shall have judgment against Defendant [City] on her claim for breach of fiduciary duty.

"3. Plaintiff shall have judgment against Defendant [City] on her request for declaratory relief as set forth in [the trial court's statement of decision]; and the Court orders the following injunctive relief:

"4. Defendant [City] is ordered to employ all reasonable means to restore the Children's Pool to its 1941 condition by removing the sand build-up and further to reduce the level of water contamination in the Children's Pool to levels certified by the County of San Diego as being safe for humans.

"5. The Court will maintain jurisdiction to oversee compliance with this order. This order shall be fully complied with no later than six (6) months after the date this order is issued. The City is directed to file a report with the Court, no later than sixty (60) days following entry of this order, setting forth what steps it has undertaken and intends to undertake to comply with this order."^[14]

O'Sullivan subsequently filed a motion for an award of attorney fees under section 1021.5. City opposed her motion. On November 23, the trial court issued a postjudgment order granting O'Sullivan's motion and awarding her $468,906 in reasonable attorney fees.^[15]

City timely filed notices of appeal of the judgment and postjudgment order awarding O'Sullivan attorney fees.

DISCUSSION

I

Claims Act

City contends O'Sullivan's action is barred by the California Tort Claims Act (Gov. Code,  810 et seq.) (Claims Act) because she did not present a claim to City before filing her complaint against it.

A

City's answer to O'Sullivan's complaint alleged the affirmative defense that the action was barred by failure to comply with the claim presentation requirements of the Claims Act. The parties stipulated that O'Sullivan did not present a claim for damages to City before filing her complaint. City again argued that affirmative defense in its trial brief, stating: "Because [O'Sullivan] admits that she did not file a claim [with City], any damage award is barred." (Italics added.) Although the parties do not cite to the record showing the trial court expressly ruled on that defense, the judgment in O'Sullivan's favor shows the trial court implicitly considered and rejected City's defense that O'Sullivan's action was barred by her failure to present a claim to City before filing her complaint.

B

The Claims Act generally requires that "all claims for money or damages against local public entities" be presented to those entities before filing a lawsuit for money or damages. (Gov. Code,  905, italics added.) "A claim relating to a cause of action for . . . injury to person or to personal property . . . shall be presented . . . not later than six months after the accrual of the cause of action. . . ." (Gov. Code,  911.2, italics added.) Government Code section 945.4 provides: "[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board . . . ." (Italics added.)

One court noted: "Where a petition for writ of mandate may seek either monetary damages or other extraordinary relief, failure to file a claim is fatal to the recovery of money damages. [Citation.]" (Tapia v. County of San Bernardino (1994) 29 Cal.App.4th 375, 383, italics added.) However, the Claims Act does not apply to actions for declaratory, injunctive, specific, or other nonmonetary relief. (Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 117, 121 [interpreting Claims Act]; Branciforte Heights, LLC v. City of Santa Cruz (2006) 138 Cal.App.4th 914, 929-932 [same]; Hart v. County of Alameda (1999) 76 Cal.App.4th 766, 782 [same]; Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 869-870 [same]; Otis v. City of Los Angeles (1942) 52 Cal.App.2d 605, 612 [interpreting similar claims provision in city charter].) There is a split of authority whether a plaintiff can recover money damages if those damages are merely incidental to the primary, nonmonetary relief sought in an action. (Compare Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 762 [summarizing cases holding incidental money damages are recoverable despite failure to present a claim under the Claims Act]; Snipes, at p. 870 ["[A]n action for specific relief does not lose its exempt status [under the Claims Act] solely because incidental money damages are sought."]; Eureka Teacher's Assn. v. Board of Education (1988) 202 Cal.App.3d 469, 475-476 [similar]; Harris v. State Personnel Bd. (1985) 170 Cal.App.3d 639, 643 [same], disapproved on another ground in Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1123, fn. 8; Loehr v.Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1081 [same]; Los Angeles Brick etc. Co. v. City of Los Angeles (1943) 60 Cal.App.2d 478, 486 [incidental money damages are recoverable despite failure to present a claim before filing lawsuit]; Ingram v. City of Gridley (1950) 100 Cal.App.2d 815, 818 [same]; People v. City of Los Angeles (1958) 160 Cal.App.2d 494, 508 [same]; with TrafficSchoolOnline, Inc. v. Clarke (2003) 112 Cal.App.4th 736, 741-742 [concluding Claims Act contains no exception for incidental damages]; California School Employees Assn. v. Governing Bd. of South Orange County Community College Dist. (2004) 124 Cal.App.4th 574, 592 (CSEA) [agreeing with TrafficSchoolOnline, Inc.]; Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1497 ["[T]he government claim requirement applies to any monetary claim even if it is merely incidental to other relief sought."].)

C

City argues that because O'Sullivan did not present to it a claim for money or damages before filing her lawsuit, her entire action is barred by the Claims Act. City notes that although her complaint sought declaratory and injunctive relief, it also contained allegations that arguably could be construed as requesting monetary damages. It notes her complaint alleged City's joint use policy at the Children's Pool beach allowed seals to occupy it, damaging public and private property and causing pollution that endangered public health and welfare. The complaint sought relief, including a declaration that City breached the Trust and its fiduciary duties thereunder and was "responsible . . . for all damages which flow from its breaches."

Assuming arguendo that O'Sullivan's complaint sought money damages in addition to the other nonmonetary relief, we nevertheless conclude the Claims Act did not bar her causes of action to the extent they sought nonmonetary relief. The Claims Act generally operates to bar only claims for money or damages, and not claims for nonmonetary relief, if claims for those money damages are not presented to City before a lawsuit is filed. Government Code section 945.4 provides: "[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . ." (Italics added.) Therefore, we focus on the relief requested on each cause of action in a complaint to determine whether the Claims Act's presentation requirements apply. If a cause of action is alleged for which the plaintiff seeks primarily nonmonetary relief, the Claims Act is not applicable to recovery of that nonmonetary relief and the plaintiff's cause of action is not barred by the plaintiff's failure to present that nonmonetary claim or a related monetary claim to the governmental entity.^[16] Accordingly, the action may proceed to the extent nonmonetary relief is sought, although monetary relief may be barred by a failure to timely present a claim for monetary relief to the public entity.

This principle was applied in two recent cases. In CSEA, supra, 124 Cal.App.4th 574, the petitioners filed a petition for writ of mandate to compel the defendant district to award classified status and lost wages to three employees. (Id. at p. 581.) The trial court rejected the entire petition, concluding in part that the requested relief was barred by the individual petitioners' failure to comply with the Claims Act. (Id. at pp. 581-582.) On appeal, CSEA concluded the Claims Act applied to bar the petitioners' claims for lost wages and other monetary relief (id. at pp. 589-593) but also concluded the individual petitioners were entitled to classified employee status under Education Code section 88003. (CSEA, supra, at pp. 580, 582-589.) Therefore, it reversed the trial court's judgment denying the petition and directed the trial court to: "(1) issue a writ of mandate ordering the District to reclassify petitioners pursuant to Education Code section 88003 and (2) deny monetary relief requested by the petitioners." (CSEA, supra, at p. 593.) In so doing, CSEA stated: "Because the failure [of petitioners] to provide notice [under the Claims Act] does not affect [their] claim for reclassification under [Education Code] section 88003, we reverse the judgment." (CSEA, at p. 580, italics added.) Therefore, CSEA applied the principle that nonmonetary relief generally is not barred by the Claims Act because of a failure to present a claim for money or damages before a lawsuit is filed.

More recently, in Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan, supra, 150 Cal.App.4th 1487, the trial court granted the employer's motion for summary judgment based on the employees' failure to comply with the claims presentation requirements of the Claims Act. (Id. at p. 1490.) The employees filed a complaint seeking a writ of mandate or, alternatively, alleging breach of contract and impairment of contract. (Id. at pp. 1491-1492.) Although we concluded mandamus relief was unavailable to invalidate changes made to the retirement plan because the employees had an adequate monetary remedy and were required to timely present a claim therefor, we nevertheless concluded mandamus relief may be available to invalidate the employer's termination of the defined benefit plan and compel the employer to perform its contractual duties under the plan because that claim did not seek money or damages requiring pre-lawsuit presentation under the Claims Act. (Id. at pp. 1492-1493.) We stated:

"[W]e agree that declaratory or injunctive relief are not available and that mandamus cannot be used to invalidate the Rate Amendment or compel recalculation of the equity adjustment because Plaintiffs had an adequate remedy at law via money damages and they were required to file a timely claim [under the Claims Act]. Mandamus, however, may be appropriate to attempt to invalidate the rollover and compel Defendants to change the retirement plan back to the [defined benefit plan]. This claim is not one for money or damages and did not require the filing of a government claim. Accordingly, summary judgment of the entire action based on Plaintiffs' failure to comply with the Claims Act was improper." (Id. at pp. 1492-1493, italics added.)

We later explained:

"While the claims for recalculation of the Rate Amendment and equity adjustment seek monetary relief and are barred based on Plaintiffs' failure to file a timely claim [under the Claims Act], we reject Defendants' argument that barring monetary relief, there is nothing left of Plaintiffs' case. Plaintiffs alleged that the termination of the Pension Plan and creation of the Contribution Plan were unreasonable and violated Defendants['] ministerial duty under the Contract Clause of the California Constitution. As an alternative theory, Plaintiffs sought a writ of mandate declaring the rollover into the Contribution Plan invalid and an order that Defendants perform their contractual duties under the [defined benefit] Pension Plan.

"Assuming that the trial court agrees with Plaintiffs' assertions and declares the rollover invalid, Plaintiffs would be entitled to an order directing Defendants to comply with the terms of the Pension Plan. While such relief, if granted, may ultimately result in money being transferred between the two systems, such relief does not render the request a claim for money or damages that requires the filing of a government claim [under the Claims Act]. [Citation.]" (Id. at pp. 1497-1498.)

We concluded: "Plaintiffs' request to invalidate the rollover and compel Defendants to change the retirement plan back to the Pension Plan was not one for money or damages. Thus, they were not required to comply with the Claims Act to obtain mandamus relief on this claim and summary judgment of the entire action based on Plaintiffs' failure to comply with the Claims Act was improper." (Id. at p. 1498.) Therefore, in Canova we applied the principle that nonmonetary relief generally is not barred by the Claims Act based on a failure to present a claim for money or damages before a lawsuit is filed.

Applying that principle to this case, we conclude the nonmonetary relief (i.e., declaratory and injunctive relief) sought in O'Sullivan's complaint was not barred by the Claims Act because of her failure to present a claim to City for money or damages before the complaint was filed. Although any monetary damages sought in addition to the nonmonetary relief primarily sought in her complaint may be barred by failure to present a claim to City, the Claims Act generally does not apply to claims for nonmonetary relief and therefore her causes of action were not barred by the Claims Act to the extent they sought nonmonetary relief. O'Sullivan's entire action was not barred by her failure to present her purported claim(s) for money or damages to City before filing her complaint.^[17] We conclude the Claims Act did not bar the trial court from awarding declaratory and injunctive relief to O'Sullivan.^[18]

II

Separation of Powers

City contends the separation of powers doctrine barred O'Sullivan's action. Citing Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152 (Friends), City argues that because O'Sullivan's action requested relief from the trial court that would interfere with City's legislative function, her action is barred by the separation of powers doctrine.

The separation of powers doctrine is based on constitutional principles. Article III, section 3 of the California Constitution provides: "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." In Manduley v. Superior Court (2002) 27 Cal.4th 537, the Supreme Court stated: "[T]he primary purpose of the separation of powers doctrine 'is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government.' [Citation.]" (Id. at p. 557, quoting Parker v. Riley (1941) 18 Cal.2d 83, 89.) Although, under our state Constitution and the separation of powers doctrine, questions of public policy are primarily for the Legislature (see, e.g., California Oregon Power Co. v. Superior Court (1955) 45 Cal.2d 858, 871), the separation of powers doctrine "recognizes that the three branches of government are interdependent, and it permits actions of one branch that may 'significantly affect those of another branch.' [Citation.]" (CarmelValley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 298.) In particular, the doctrine of separation of powers "has not been interpreted as requiring the rigid classification of all the incidental activities of government, with the result that once a technique or method of procedure is associated with a particular branch of the government, it can never be used thereafter by another." (Parker, at p. 90.) The doctrine "is not intended to prohibit one branch from taking action properly within its sphere that has the incidental effect of duplicating a function or procedure delegated to another branch." (Younger v. Superior Court (1978) 21 Cal.3d 102, 117.)

In Friends, the plaintiffs sought injunctive relief requiring the defendant city to abate the alleged nuisance resulting from the city's inaction in response to complaints regarding traffic conditions on a street. (Friends, supra, 20 Cal.App.4th at pp. 157-158.) The plaintiffs sought injunctive relief requiring the city to reduce traffic speed and volume on that street. (Ibid.) The trial court sustained the city's demurrer without leave to amend, stating: " 'The routing of traffic on city streets is basically a legislative function. To the extent that traffic is rerouted from H Street, it must be routed onto another street or highway. The selection among alternatives is a legislative act.' " (Id. at p. 158.) Friends affirmed the trial court's judgment for the city because the traffic changes sought by the plaintiff were matters of public policy for the legislative branch (i.e., the city), which were beyond the power of the judicial branch. (Id. at pp. 164-166.)

Unlike the relief sought in Friends involving matters of public policy, in this case O'Sullivan's complaint sought injunctive relief requiring City to abide by the terms of the Trust and cure its alleged breaches of the Trust. As the trustee of the Trust, City " 'assume[d] the same burdens and is subject to the same regulations that appertain to other trustees of such trusts.' " (City of Long Beach v. Morse, supra, 31 Cal.2d at p. 257.) City, as trustee, is bound by the terms of the Trust and is not free to ignore its provisions based on political or public policy considerations. Because Friends did not involve the enforcement of trust provisions against a trustee, it is inapposite to this case. Friends's application of the separation of powers doctrine to its circumstances does not persuade us that the doctrine applies to the circumstances in this case.

Neither the relief requested in O'Sullivan's complaint nor the relief awarded by the trial court's judgment involved a matter of public policy within the exclusive province of the legislative branch (i.e., City).^[19] Rather, her complaint requested judicial relief based on City's alleged breach of the Trust and its fiduciary duties under the Trust. City's duties as trustee of the Trust are not defined by any legislative or public policy determination by City, but rather by the Trust's terms imposed by the Legislature, which appropriately were the subject of judicial determination. To the extent City's actions or inaction breached its duties as trustee of the Trust (as found by the trial court), City's legislative or public policy decisions regarding the Trust or the Children's Pool do not preclude judicial action compelling it to abide by the terms of the Trust. In deciding the issues raised by O'Sullivan's complaint and awarding the relief set forth in its judgment, the trial court exercised judicial, not legislative, functions.^[20] (Cf. California Oregon Power Co. v. Superior Court, supra, 45 Cal.2d at p. 871.)

III

Interpretation of the Trust

City contends the trial court erred in interpreting the Trust's language regarding the uses permitted for the Children's Pool. It argues the Trust's language is clear and unambiguous that, as City euphemistically defines the issue, viewing of seals is a recreational purpose and thus a permitted use.

A

The trial court's judgment and statement of decision in this case contain both findings of fact and conclusions of law. "We review the trial court's findings of fact to determine whether they are supported by substantial evidence. [Citation.] To the extent the trial court drew conclusions of law based upon its findings of fact, we review those conclusions of law de novo. [Citation.]" (Westfour Corp. v. California First Bank (1992) 3 Cal.App.4th 1554, 1558.)

"Under [the substantial evidence standard of review], we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.] [] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. . . . [Citations.]" (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) To be substantial, the evidence must be of ponderable legal significance, reasonable in nature, credible, and of solid value. (Id. at p. 631; Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100.) However, substantial evidence is not synonymous with any evidence. (Oregel, supra, at p. 1100; Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871.) "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.)

We generally apply an independent, or de novo, standard of review to the trial court's conclusions of law regarding interpretation of the Trust. In interpreting the language of the Trust, its meaning depends on the expressed intent of the Legislature, as trustor of the Trust. Interpretation of a trustor's intent is not unlike interpretation of the intent of parties to a contract. "The precise meaning of any contract . . . depends upon the parties' expressed intent, using an objective standard. [Citations.] When there is ambiguity in the contract language, extrinsic evidence may be considered to ascertain a meaning to which the instrument's language is reasonably susceptible. [Citation.] . . . [] We review the agreement and the extrinsic evidence de novo, even if the evidence is susceptible to multiple interpretations, unless the interpretation depends upon credibility. [Citation.] If it does, we must accept any reasonable interpretation adopted by the trial court. [Citation.]"^[21] (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 21-22, fns. omitted.) If the trial court's decision was not based on the credibility of conflicting evidence, we exercise de novo review, rather than substantial evidence review, in interpreting a trust or other written agreement. (Mayer v. C.W. Driver (2002) 98 Cal.App.4th 48, 57.) "[W]here . . . the extrinsic evidence is not in conflict, construction of the [trust or] agreement is a question of law for our independent review. [Citation.]" (Appleton v. Waessil (1994) 27 Cal.App.4th 551, 556; Schaefer's Ambulance Service v. County of San Bernardino (1998) 68 Cal.App.4th 581, 586 ["[T]o the extent the evidence is not in conflict, we construe the instrument, and we resolve any conflicting inferences, ourselves."].) "[W]here the evidence is undisputed and the parties draw conflicting inferences, we will independently draw inferences and interpret the [trust]." (City of El Cajon v. El Cajon Police Officers' Assn. (1996) 49 Cal.App.4th 64, 71.) In contrast, "[i]f the parol evidence is in conflict, requiring resolution of credibility issues, we would be guided by the substantial evidence test. [Citation.]" (Appleton, at p. 556.)

Alternatively stated: "When the competent parol [or extrinsic] evidence is in conflict, and thus requires resolution of credibility issues, any reasonable construction will be upheld as long as it is supported by substantial evidence. [Citation.] However, when no parol evidence is introduced (requiring construction of the instrument solely based on its own language) or when the competent parol evidence is not conflicting, construction of the instrument is a question of law, and the appellate court will independently construe the writing. [Citation.]" (Winet v. Price (1992) 4 Cal.App.4th 1159, 1166.)

Because the Trust was created in 1931 by an act of the Legislature, as trustor, we also apply general principles of statutory construction in interpreting the language of the Trust. Like the rules for interpretation of trusts and contracts, the rules for interpretation of a statute require us to interpret the Legislature's intent. (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826.) "Our first step [in determining the Legislature's intent] is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning. [Citations.]" (People v. Valladoli (1996) 13 Cal.4th 590, 597.) "If the language is clear and unambiguous[,] there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature . . . . [Citations.]" (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) "However, the literal meaning of a statute must be in accord with its purpose." (TrafficSchoolOnline, Inc. v. Clarke, supra, 112 Cal.App.4th at p. 740.) In Lungren, supra, 45 Cal.3d 727, the Supreme Court stated:

"[T]he 'plain meaning' rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] . . . [I]f a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation]." (Lungren, at p. 735.)

"When the statutory language is ambiguous, the court may examine the context in which the language appears, adopting the construction that best harmonizes the statute internally and with related statutes. [Citations.]" (Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16 Cal.4th 1143, 1152.) "When the language is susceptible of more than one reasonable interpretation, . . . we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]" (People v. Woodhead (1987) 43 Cal.3d 1002, 1008.)

"[W]e may affirm a trial court judgment on any [correct] basis presented by the record whether or not relied upon by the trial court. [Citation.]" (Day v. AltaBatesMedicalCenter (2002) 98 Cal.App.4th 243, 252, fn. 1.) "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.)

B

City contends that because the language of the Trust is clear and unambiguous, its plain meaning should govern and the extrinsic evidence admitted by the trial court was unnecessary to determine the intent of the Legislature, as trustor, in enacting the Trust. City then argues the Trust's plain language permits use of the Children's Pool for "recreational purposes," which include viewing seals by citizens. Furthermore, it argues the resultant education that children receive by viewing the seals is a proper incidental use under the terms of the Trust. Accordingly, City argues its practice of allowing joint use by seals and humans is permitted by the plain language of the Trust.

Although City couches its argument that viewing seals is a recreational or incidental use of the Children's Pool and therefore permitted by the terms of the Trust, there is nothing in the trial court's judgment that prevents viewing the Children's Pool area. Rather, the issue is whether the City is authorized to maintain the Children's Pool area in a manner that encourages occupation by seals and prevents concurrent safe use by children.

The Trust provides that the Legislature, as trustor, granted the Children's Pool to City, as trustee, to be held "in trust for the uses and purposes and upon the express conditions following, to wit: [] (a) That said lands shall be devoted exclusively to public park, bathing pool for children, parkway, highway, playground and recreational purposes, and to such other uses as may be incident to, or convenient for the full enjoyment of, such purposes . . . ." The trial court admitted extrinsic evidence regarding the legislative and other history around the time the Trust was enacted by the Legislature in 1931. In so doing, the court presumably concluded the language of the Trust was ambiguous and extrinsic evidence was appropriate to determine the intent of the Legislature, as trustor. After considering that extrinsic evidence, the trial court concluded the Trust property (i.e., the Children's Pool) was to be "used exclusively for a public park and children's pool." The court explained: "Recognizing that a bathing pool for children existed on the land when the Trust was created and that the land was situated adjacent to a public park, and would be an extension of same, the legislative intent was clear. The entrusted land shall be used exclusively for a public park which includes a children's pool, and that the purpose of that use shall be recreational." Accordingly, the court concluded: "The use by the City of the Children's Pool as a habitat, animal sanctuary, zoo or seal watching facility that precludes its being used as a bathing pool for children would be outside the scope of the Trust."

We conclude the trial court properly considered extrinsic evidence in determining the Legislature's intent in enacting the Trust. Although both parties appear to agree the Trust's language (i.e., "bathing pool for children") is unambiguous to the extent it provides for use of the Children's Pool for swimming by children, City argues, and O'Sullivan disagrees, the remainder of the Trust's language was also unambiguous and also plainly allows use of the Children's Pool for the "recreational" use of viewing seals. Because the term "recreational purposes" within the meaning of the Trust is ambiguous regarding whether the purported "recreational" use of viewing seals is a use permitted by the Trust, we conclude the trial court properly admitted and considered extrinsic evidence on that issue. "When the language is susceptible of more than one reasonable interpretation, . . . we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]" (People v. Woodhead, supra, 43 Cal.3d at p. 1007.)