Plaintiffs Failed to Raise Viable Challenge to City's Decision to Remove Historical Sculpture

In Schimd v. City and County of San Francisco, published February 1, 2021, the First District Court of Appeal, Division 4 affirmed dismissal after demurrer of a lawsuit brought by two San Francisco taxpayers challenging the administrative decision of the San Francisco Board of Appeals authorizing the removal of a bronze sculpture that was originally part of a San Francisco Civic Center monument to California’s Pioneer Period. The San Francisco Historic Preservation Commission granted a Certificate of Appropriateness to take down the sculpture and place it in storage, based on significant adverse public reaction to the sculpture. The plaintiffs asserted that the removal violated the Bane Act, and sought administrative mandamus and ordinary mandamus writ relief, among other claims. The trial court sustained the defendants’ demurrer without leave to amend. The appellate court agreed that the plaintiffs failed to state a cause of action. The plaintiffs failed to state a Bane Act claim, because they did not allege any threats, intimidation, or coercion violating rights amenable to Bane Act enforcement. They failed to state a cause of action for administrative mandamus, because they failed to allege anything to support conclusory allegations that the Board of Appeals acted in excess of its authority or abused its discretion. The administrative record shows that the Board acted within its authority as provided by law, and that its conclusions are supported by substantial evidence. The court rejected the argument that the removal violated the California Arts Preservation Act. Even assuming the Act was not preempted by the federal Visual Artists Rights Act of 1991, only an artist or an artist’s heirs has standing to enforce rights under the Act. The complaint failed to show a violation of Federal Historic Preservation Standards, because the decision acknowledged those standards and the complaint did not plead nonconclusory facts showing their violation. The complaint failed to show that the removal was a public nuisance. The complaint failed to show a violation of the California Environmental Quality Act, because the plaintiffs failed to exhaust their administrative remedies under CEQA. The petition for writ of ordinary mandamus alleged that a condition placed on the Certificate of Approval—placement of a plaque before removal—was not carried out. Ordinary mandamus requires identification of a ministerial act. The complaint did not identify a ministerial act, since the Board had discretion to remove the sculpture. Drafting language for the plaque is not a ministerial act, and must precede the plaque’s installation. Since the sculpture was removed before the act was filed, the question of whether the sculpture may be removed before the plaque is installed is moot.