Opinion
C076886
12-20-2016
LOOKOUT STOCK ASSOCIATION, Plaintiff and Appellant, v. PETER GERIG et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 50971)
Plaintiff Lookout Stock Association (LSA) was founded in 1917 as a cooperative cattle grazing association to manage co-owned lands. Later, its primary purpose was to hold the grazing permit from the United States Forest Service (USFS) and the timberland leases. Disagreements among members came to a head at the November 1, 2008 meeting, when defendants Peter Gerig, Lynne Gerig, Robert Gerig (collectively "the Gerigs"; we refer to the individual Gerigs where necessary by their first names), and Robert Shaw walked out, effectively resigning their membership. As a result, the USFS grazing permit and the leases held by LSA were replaced by individual permits and leases.
Unhappy with this result, LSA brought suit against the Gerigs and Shaw. The Gerigs sought summary adjudication as to all claims relating to the cattle grazing permits and leases. They asserted these claims were barred by collateral estoppel, waiver, and lack of standing. Further, they contended LSA lacked the evidence of misrepresentations necessary to establish these claims. After the trial court granted the motion for summary adjudication on all grounds advanced, LSA dismissed the remaining claims without prejudice in order to pursue a prompt appeal.
Shaw is not a party to this appeal. LSA settled with him and dismissed the case against him. --------
On appeal, LSA contends the trial court erred in granting summary adjudication. The root of the dispute on appeal is the parties' disagreement as to the scope of the allegations in LSA's complaint. With respect to the cattle grazing permits and leases, the Gerigs' position was that the only wrongful act alleged was a misrepresentation of cattle numbers (which resulted in the Gerigs receiving more than their fair share of the permits and leases). LSA contends the allegations of the complaint were broader and encompassed additional wrongful acts. The trial court accepted the Gerigs' position. As we will explain, so do we.
As the first step of our review of the ruling on the summary adjudication motion, we determine that as to cattle grazing permits and leases, the allegations of the applicable complaint are limited to misrepresentation. We then conclude LSA lacks standing to pursue this claim on a representative basis because its members lack a community of interest. Accordingly, we affirm the judgment without addressing the remainder of the trial court's findings.
BACKGROUND
The Dispute within LSA
LSA was formed in 1917. The bylaws state: "The object of this association is the cooperation of its members for the protection of their Industry of buying or leasing of land and range building or leasing corrals or pasture, salting, providing watering places, assisting its members in gathering stock." The officers of LSA are a president, a vice-president, and a secretary/treasurer. The board of directors is comprised of these three individuals and two other members. The duties of the officers are to look after the business of the association, count the stock using the range, enter into contracts for the purchase or lease of property and range, purchase salt, and to levy, collect and disburse taxes and dues. Meetings of the association are held annually, the first Saturday in November.
Over time, the primary functions of LSA became to manage co-owned land and to assist cattle grazers. LSA purchased a number of parcels of land in the Lookout area; these parcels were intermixed with USFS land and timberland. Individual members had shares in these lands. LSA managed these lands and paid the property taxes, which by custom were paid only by grazers. LSA also purchased salt, repaired fences, and performed other maintenance work. Its most important function was to nominally hold the USFS permits and timberland leases. LSA held both a private land permit and a co-owned permit with the USFS and leases with private timber companies Sierra Pacific Industries (SPI) and W. M. Beaty and Associates (Beaty).
Eventually, the number of LSA members who actively grazed cattle declined. While some of these members sold their interest in the association, some did not, and a split developed between the active grazers and the inactive landowners. In 1999, Norris Gerig, the president of LSA (and Peter's father) passed away and Peter was asked to take over as president. There were no formal elections, but for the next several years, the Gerigs and Shaw acted as officers of LSA. The four together owned or controlled 82 of the total 118 shares of the association or 69 percent.
In the mid-2000's, Marvin and Rita Cardoza (the Cardozas) purchased a ranch and accompanying permits and leases. They soon took issue with how the LSA was run. By 2007, only four LSA members used the two USFS permits (the private land permit and the co-owned land permit): (1) the Cardozas; (2) Robert Shaw as trustee of the Shaw Family Trust; (3) Peter and Lynne as trustees of the Gerig Family Trust; and (4) Robert (along with his sister Vicky Gerig) as trustees of the Gerig 1999 Trust. Two USFS permits were issued to LSA on April 3, 2007, for 380 cow/calf pairs for the private land permit and 43 cow/calf pairs for the co-owned land permit, all on the Crank Springs grazing allotment.
The dispute between the two groups within the LSA (the Gerigs and Shaw on one hand and the Cardozas and non-grazers on the other) centered on three issues: (1) the 2002 range improvement program that removed juniper from a portion of co-owned land known as Loody Field to restore a cattle water source; (2) a 2005 limited term use restriction on a portion of co-owned land known as Rose Canyon to facilitate a meadow restoration program partially funded by federal agencies and conservation groups; and (3) the alleged misrepresentation of use numbers to the USFS to increase the permits to defendants. Only the third issue is relevant to this appeal.
The dispute came to a head at the November 2008 LSA meeting, when the Gerigs and Shaw walked out. The LSA concluded that by walking out, the defendants quit LSA and relinquished their officer positions. A Lassen County Superior Court decision, commanding Peter to turn over money and records of the LSA, found that defendants intended to withdraw from LSA when they walked out of the meeting.
Prior to the November 2008 meeting, defendants had contacted the USFS about securing separate individual grazing permits in place of the LSA permit. After three of the four grazers in LSA (the two groups of Gerigs and Shaw) requested individual permits, the USFS agreed to issue such permits. All of the grazers--the Gerigs, Shaw, and the Cardozas--received individual grazing permits from the USFS. The split of the LSA permit was accomplished by modification to the existing permits. Marvin Cardoza signed his acceptance of the individual permit on April 28, 2009. The timber companies, SPI, and Beaty, also then issued individual permits to the grazers. According to Peter, this was the natural consequence of the issuance of separate USFS permits, "[a]s the Leases simply follow the Private Land Permits." The parties could not reach an agreement as to the co-owned lands permit and the USFS cancelled it.
Also before the November 2008 meeting, Peter and Robert had taken steps to separate the taxes on the property co-owned by the LSA members.
After defendants left LSA, the USFS took the position that LSA no longer met the criteria of an association under applicable regulations. The regulations required members of the association to hold the majority of the grazing permits on the allotments at issue. (36 C.F.R. § 222.7(a)(3)(i).) The USFS interpreted this regulation to require that an association have more than one permittee. After defendants left LSA, there was only one grazer and permittee remaining--the Cardozas.
Appeals to the USFS
The Cardozas filed an administrative appeal from the 2010 annual operating instructions for their grazing permit. Their appeal raised four issues: (1) the division of the permits; (2) the USFS' improper interference with LSA's leases with SPI and Beaty; (3) the lack of an adequate meet and confer by the deciding officer; and (4) the failure to adequately safeguard the Cardozas' grazing privileges. The USFS denied the appeal. With respect to the division of the permits, it found the division was proper; indeed, it was in accordance with a letter from Rita Cardoza. The USFS found inadequate documentation on the issue of interference with the leases, but noted that it could be argued it was in the best interests of all to have a separate grazing permit with Beaty and a separate grazing license with SPI.
The USFS declined discretionary review, making the administrative decision final. After the USFS determined that LSA no longer met the criteria of an association under USFS regulations, it sent a notice of non-compliance to LSA. This notice was followed by a decision to cancel the LSA permit.
LSA appealed this decision. The appeal raised five issues: (1) the decision to cancel the LSA permit; (2) the erroneous division of the permit; (3) the USFS' improper interference with LSA's leases with SPI and Beaty; (4) the lack of an adequate meet and confer by the deciding officer; and (5) the failure to adequately safeguard LSA's grazing privileges. The USFS rejected all of LSA's challenges. It found it was proper to cancel the permit because LSA no longer met the criteria of an association. It found the 2010 decision to cancel the permit (the decision from which LSA appealed) did not divide the permit; that division occurred in 2009. Further, in dividing the permit, the USFS used numbers provided by LSA and those provided by the individual grazing permittees. The USFS found that all grazing members of LSA had contacted either the USFS or Beaty and SPI to request separate leases.
The USFS declined discretionary review, making the administrative decision final.
The Lawsuit
LSA filed suit against defendants the Gerigs and Shaw. The first amended complaint (FAC) was an action brought on behalf of the individual members of LSA, pursuant to Code of Civil Procedure action 369.5, subdivision (a) (authorizing an unincorporated association to sue).
The FAC alleged that during the approximately 11 years that defendants served as de facto officers and directors of LSA, they "committed multiple acts which constitute fraud and/or the gross abuse of authority or discretion." Per the FAC, these acts included (1) the deed restriction on Rose Canyon; (2) the timbering and chipping of Loody Field; (3) misrepresenting the historic cattle grazing numbers (which enabled defendants to enhance their cattle numbers at the expense of the other members); (4) convincing the USFS, SPI, and Beaty to cancel LSA leases and issue new leases to defendants individually; and (5) the loss of tax revenue due to separation of taxes, and the loss of the association's ability to control privately owned lands within the open range.
The FAC was styled as six causes of action: breach of fiduciary duty; accounting; constructive fraud; fraud; interference with economic relationship; and restitution. The first cause of action alleged defendants were fiduciaries by virtue of being agents of LSA and they breached their fiduciary duties by failing to disclose information and keep records, engaging in financial transactions that were not in the best interest of the association, obtaining a secret profit through self-dealing, and putting their self-interest above the association. The third cause of action (constructive fraud) alleged defendants' breach of fiduciary duties and misrepresentations as to the same resulted in personal advantage to defendants. The fourth cause of action (fraud) alleged defendants' misrepresentations as to their activities and their failure to disclose such activities induced plaintiffs to refrain from mitigating actions and plaintiffs' reliance was reasonable.
The fifth cause of action (interference with economic relationship) alleged: "Pursuant to USFS regulations, permits are to be divided fairly and equitably among grazing association members. Thus, notwithstanding defendants' right to request separate grazing permits and leases under USFS regulations, defendants were not privileged (sic) to misrepresent historical grazing information to the USFS in order to enhance the number of cattle defendants could run on the Crank Springs allotment, or to obtain separate leases from SPI and Beaty." As the second and sixth causes of action, the FAC sought an accounting of all money defendants collected through transactions and disgorgement of their unjust enrichment.
Motion for Summary Adjudication
The Gerigs moved for summary adjudication of "all causes of action related to cattle permits and leases." They contended that all these causes of action were barred by collateral estoppel, waiver, and lack of standing. They further asserted that LSA could not establish that defendants misrepresented the cattle numbers. Defendants relied on the USFS decisions to claim collateral estoppel. Defendants argued LSA lacked standing because the case did not meet the requirements of a representative action. There was no ascertainable class and no community of interest as only the Cardozas (who were the only remaining grazers in LSA) were harmed by the alleged misrepresentation of cattle numbers.
Defendants argued the fifth cause of action for interference with an economic relationship and the other causes of action as they related to the cattle permits and leases required LSA to prove a misrepresentation. Defendants offered excerpts from depositions in which various members of LSA stated they believed Peter's cattle numbers went up after the split, but they had no evidence to support the claim of a misrepresentation. Further, defendants argued Marvin Cardoza consented to the permit and lease split by signing the permit modification and the separate leases. In his deposition, Marvin Cardoza testified he signed but claimed he had no choice because he had cattle trucks lined up and he could put cows "on the permit" only if he signed the permit modification. (Presumably he meant he needed a signed permit to graze these waiting cattle.)
In opposition to this motion, LSA explained that defendants' wrongful activities included more than misrepresentations as to cattle numbers; defendants were also able to remove of any and all control and monitoring of the Crank Springs Allotment by LSA, and control 26,000 acres of private land with minimal USFS monitoring and administration of their grazing activities. LSA argued defendants "gained all of the organization's power, control and assets." In excerpts from depositions of members of LSA, in addition to complaints about Loody Field and Rose Canyon (which are not at issue in this appeal), members asserted that they were damaged because they "lost the organization," meaning after the change of permits the non-grazers no longer had their taxes paid by grazers, they lost permits and long-term leases as well as a platform to monitor properties, and the organization was destroyed. The Gerigs could leave LSA, "[b]ut they didn't need to take the permits with them and all the assets of the organization. That was criminal."
LSA argued there was no collateral estoppel because the issues in the administrative USFS proceedings were not identical to those in the lawsuit and the proceedings were not of a judicial character; there was no opportunity to call and cross-examine witnesses, no testimony under oath, no subpoena power, and no record of the testimony and exhibits. LSA supported this assertion by submitting the regulations outlining the appeal process. LSA claimed it had standing as its members had a common interest in compensation for damages. It argued Marvin Cardoza's signing of the individual permit and leases did not constitute a valid waiver. He did not sign as president or other representative of LSA and did so only because he had cattle ready to go onto the allotment.
Finally, LSA argued defendants misrepresented the cattle numbers, primarily because Peter included figures for the cattle he ran for the Gerig 1999 Trust although he did not have a proper written management agreement as required by the USFS. In his deposition, Peter could not explain why his cattle numbers went from 230 to 247.
In reply to the opposition, defendants contended that LSA was raising arguments about defendants "gutting" the organization that were not based on the allegations in the FAC. "Essentially the LSA argues in its Opposition that Defendants did not have the ability to leave the LSA and request separate permits." Defendants asserted: "The FAC clearly limits its allegations regarding the cattle permits and leases to alleged misrepresentations. [Citations.] In relevant part, it notes, '[t]hus, notwithstanding defendants' right to request separate grazing permits and leases under USFS regulations, defendants were not privileged (sic) to misrepresent historical grazing information to the USFS in order to enhance the number of cattle defendants could run on the Crank Springs allotment, or to obtain separate leases from SPI and Beaty.' "
In support of the collateral estoppel argument, to show the USFS proceedings had a sufficient judicial character, defendants presented the declaration of William Thomas, a lawyer who had represented defendants at the USFS proceedings. Thomas declared that at both proceedings all parties had the opportunity to call and cross-examine witnesses under oath, submit evidence, and subpoena witnesses.
Just before the hearing, and without requesting or receiving leave to file a sur-reply, LSA submitted the declaration of Karen Budd-Falen, who had represented the Cardozas and LSA at the USFS proceedings. She contradicted Thomas' declaration about the proceedings. "Pursuant to the Forest Service appeals regulations during the Oral Presentation for the Cardoza and LSA appeals, there was no opportunity to call witnesses for direct or cross examination; there was no opportunity for attorneys or the 'Forest Service Reviewing Officer' to subpoena witnesses; there was no judicial officer present so there was no swearing in of parties or testimony under oath; no witnesses for any party, including the Forest Service, testified at the oral presentation in any manner." (Fn. omitted.) The agendas for the oral presentations gave each party 10 to 15 minutes, with five minutes for questions. Budd-Nelson declared portions of Thomas' declaration were false.
Ruling
At the hearing on the motion for summary adjudication, defendants objected to Budd-Nelson's declaration. LSA argued it was in response to the Thomas declaration submitted with defendants' reply. The trial court declined to accept the declaration, finding its submission was untimely.
The trial court granted summary adjudication on all causes of action relating to the allegations of misappropriating USFS permits and accompanying leases, requiring the USFS to divide the permit and requiring the leaseholders to issue separate leases or otherwise acquiring separate permits and leases. The court found collateral estoppel, waiver, lack of standing, and no evidence of a misrepresentation.
LSA requested dismissal of the remaining claims against the Gerigs without prejudice in order to pursue an appeal.
The court awarded the Gerigs $20,983.25 in costs and entered judgment in their favor. LSA timely appealed.
DISCUSSION
I
Summary Adjudication
"A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Code Civ. Proc., § 437c, subd. (f)(1).)
The Gerigs moved for summary adjudication as to all alleged wrongful acts relating to the permits and leases, even though the motion would only partially dispose of all of the causes of action as pleaded in the FAC except the fifth--interference with economic relationship. In bringing the summary adjudication motion, the Gerigs relied on Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854. In Lilienthal, a legal malpractice case, plaintiffs sued for breach of contract and negligence; each cause of action related to two separate legal matters. (Id. at p. 1850.) The defendant sought summary adjudication on one matter, claiming a statute of limitations defense. (Ibid.) The trial court denied the motion because it would not dispose of an entire cause of action. (Id. at p. 1851.) The appellate court found the trial court could not refuse to rule on the merits of the summary adjudication motion. (Id. at p. 1850.) "[W]e hold that under subdivision (f) of [Code of Civil Procedure] section 437c, a party may present a motion for summary adjudication challenging a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action." (Id. at pp. 1854-1855, but see Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1094 , fn. 2 [questioning Lilienthal's construction of Code of Civil Procedure section 437c, subdivision (f)].)
The Gerigs asserted the alleged wrongful acts relating to the cattle grazing permits and leases were separate and distinct from the wrongful acts relating to Rose Canyon or Loody field. They occurred at different times, affected different property, and would result in different damages. LSA did not object to this use of the summary adjudication procedure.
"In order to establish entitlement to summary adjudication, the moving party must establish that the cause of action is without merit by negating an essential element or by establishing a complete defense. [Citations.] A motion for summary adjudication proceeds in all procedural respects as a motion for summary judgment. [Citation.]" (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 324.)
"[W]e apply the same three-step analysis required of the trial court ruling on a motion for summary judgment or summary adjudication. First, we identify the issues framed by the pleadings because the court's sole function on a motion for summary judgment is to determine from the submitted evidence whether there is a triable issue as to any material fact. Second, where the defendant is the moving party, we determine whether it has met its burden of proof by producing admissible evidence showing that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Finally, if the moving party has met its statutory burden of proof and the summary judgment motion prima facie justifies a judgment, we determine whether the opposing party has met its burden of demonstrating the existence of a triable issue of one or more material facts as to that cause of action or defense thereto. In making this determination, we construe the evidence of the moving party strictly and liberally construe that of the opponent, and any doubts as to the propriety of granting the motion will be resolved in favor of the party opposing the motion." (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320-321.)
II
Framing the Issues of the FAC
" 'The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' [Citation.] 'The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.' [Citations.] The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action. [Citation.]" (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.)
The parties disagree as to the scope of the issues framed by the FAC. LSA contends the Gerigs' misconduct went beyond misrepresentation of the cattle numbers; they also improperly competed with LSA and were disloyal to members of LSA. LSA contends the Gerigs "misused their position as LSA officers . . . so as to create room on the allotted land to add cattle-head numbers to their individual permits. They achieved this self-serving goal by underhandedly voiding the leases and sabotaging the Term PL Permit in order to convert the benefits of those assets to themselves at the expense of the LSA and its members." (Fn. omitted.)
The Gerigs contend the FAC limited its allegations regarding cattle permits and leases to alleged misrepresentations. They quote the FAC: "Thus, notwithstanding defendants' right to request separate grazing permits and leases under USFS regulations, defendants were not privileged (sic) to misrepresent historical grazing information to the USFS in order to enhance the number of cattle defendants could run on the Crank Springs allotment, or to obtain separate leases from SPI and Beaty."
The Gerigs have the better argument.
The parties agree the Gerigs had the right to leave LSA and request separate grazing permits and leases. On appeal, LSA contends the Gerigs did this in an impermissible manner. Although LSA fails to specify the exact wrongful action, we glean from its briefing that the wrongful actions were leaving LSA (so that the USFS no longer recognized LSA as a grazing association) and benefitting disproportionately from the split by misrepresenting the cattle numbers to the USFS. Because they were officers and directors of LSA, LSA views defendants' withdrawal from LSA as a breach of the duty of loyalty and improper competition with LSA.
Regardless of whether leaving LSA--and thus causing the demise of the organization--was actionable, the FAC did not allege leaving as the wrongful action. The allegations of the FAC focus solely on the defendants' benefitting through their misrepresentation of the number of grazing cattle. In the general factual allegations, the FAC states: "It was the responsibility of LSA to divide the 423 head of cattle among its then-actively grazing members in accordance with the Bylaws and association regulations. However, as acting president of the association, defendant Peter Gerig controlled all communication between LSA and the USFS. Defendants used this communication leverage to their own advantage by misrepresenting historical grazing numbers to the USFS; this in turn enabled defendants to enhance their own numbers of cattle at the expense of the association's members."
The FAC's recitation of wrongful acts does include the cancellation of the leases with SPI and Beaty. The FAC alleges: "While defendant Peter Gerig was acting as president of the association, he convinced the USFS and the timber companies (SPI and Beaty) to cancel LSA's grazing leases, and to issue new leases to the defendants. This interfered with a long-time leasehold relationship of good standing between these private timber companies and the association, and has resulted in damages to the association and its members minimally valued at more than $10,000 per year." However, in the specific pleading as to interference with the leases, the portion quoted ante, and relied on by the Gerigs, makes clear the wrongful interference was "misrepresent[ing] historical grazing information to the USFS in order to enhance the number of cattle defendants could run on the Crank Springs allotment, or to obtain separate leases from SPI and Beaty."
Misrepresentation was a necessary component of all of LSA's causes of action pertaining to permits and leases. Absent a misrepresentation of cattle numbers, which unfairly increased the number of cattle allocated to Peter or other defendants, LSA has failed to show how the conversion of the LSA permit and the SPI and Beaty leases into individual permits and leases harmed any member of LSA. After all, once defendants left LSA, which LSA concedes they had the right to do, cancellation of LSA's permits would naturally follow. The organization, with the Cardozas left as the only permittee and grazer, no longer qualified as a grazing association under the USFS criteria. LSA offered no evidence to refute Peter's assertion that the leases follow the permits. Accordingly, the LSA permit and leases--the "glue" that LSA contends held together the "symbiotic" relationship between the grazing and non-grazing members of the LSA--would have dissolved without any wrongful act by defendants.
With respect to the cattle grazing permits and leases, the FAC confines its description of any wrongful act by defendants to the misrepresentation of historic cattle numbers, by which misrepresentation defendants obtained more than their fair share of permitted cattle numbers when the individual permits and leases were issued. Thus, as to the cattle grazing permits and leases, the issue framed is limited to misrepresentation.
III
Standing
Having clarified the issue to be addressed by the motion for summary adjudication, we turn to the bases offered to support the motion. The Gerig defendants offered four bases: collateral estoppel, lack of standing, waiver, and LSA's inability to prove misrepresentation. We begin and end with standing.
"A lack of standing is a jurisdictional defect to an action that mandates dismissal." (Cummings v. Stanley (2009) 177 Cal.App.4th 493, 501.)
LSA brought this action in a representative capacity on behalf of its members. "The two requirements that must be satisfied for a representative action are an ascertainable class and a well-defined community of interest in the questions of law and fact involved affecting the parties to be represented." (Market Lofts Community Assn v. 9th Street Market Lofts, LLC (2014) 222 Cal.App.4th 924, 933.) In Tenants Assn. of Park Santa Anita v. Southers (1990) 222 Cal.App.3d 1293, an unincorporated association of past and current residents of a mobilehome park sued, seeking damages and prospective relief, for violations of state and local mobilehome laws. The appellate court found the association had standing; there was an ascertainable class--members of the association--and a community of interest in seeing the mobilehome park laws enforced. (Id. at p. 1304.) The court concluded, however, that the association did not have standing to sue for damages for anxiety, emotional distress, or personal injuries as these alleged injuries "are too intangible and too inherently personal to the individual to reasonably constitute a community of interest." (Ibid.)
LSA contends its standing is "obvious." It contends its members have a community of interest in maintaining and preserving the permit and the leases and recovering from the defendants' self-dealing. However, as explained ante, the lawsuit was not--and could not be--about preserving the permit and leases. Those were lost by defendants' decision to withdraw from LSA, a decision LSA concedes they had the right to make. The only viable allegation of self-dealing was that defendants misrepresented historic cattle numbers to obtain more permits than their entitlement. On this issue, the Cardozas alone had an interest; if a misrepresentation could be proved, they would gain a permit for a greater number of cattle. While the non-grazing members of LSA might experience schadenfreude from a judgment against defendants, whom they blamed for destroying the organization, they stood to gain no legal benefit. A reallocation of cattle numbers for the grazing permits and leases would not aid them at all. The FAC alleged that as a result of the misrepresentation "LSA's actively-grazing members have suffered financial hardship due to the severely reduced number of cattle they have been allowed to run." The only "actively-grazing members" are the Cardozas; they alone have an interest and potential damages with respect to the permits and leases.
Because there was no community of interest among the members of LSA, the LSA lacked standing to bring the action with respect to the claims related to the permits and leases. Accordingly, the trial court did not err in granting the Gerigs' motion for summary adjudication. Because we find plaintiff's lack of standing a sufficient basis to support the trial court's ruling on the summary adjudication motion, we need not address the alternative theories.
IV
Costs
LSA contends the award of costs was improper. It contends that even if the judgment is affirmed, the trial court "abused its discretion in awarding $2,654.19 in costs to Defendants that either were not reasonably necessary or were not reasonable in amount." LSA cites to its motion to tax costs and the trial court's award of costs. LSA presents no further argument--and no citation to legal authority--on this point. Apparently, LSA intends to incorporate by reference its motion to tax costs filed in the trial court. Such incorporation by reference is an impermissible appellate practice.
"It is well settled that the Court of Appeal does not permit incorporation by reference of documents filed in the trial court." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20.) "The appellant may not simply incorporate by reference arguments made in papers filed in the trial court, rather than briefing them on appeal." (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.) "An appellant cannot rely on incorporation of trial court papers, but must tender arguments in the appellate briefs." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 109; see In re Groundwater Cases (2007) 154 Cal.App.4th 659, 690, fn. 18 ["We . . . remind counsel that 'it is entirely inappropriate for an appellate brief to incorporate by reference documents and arguments from the proceedings below' "].) "[I]t is not appropriate to incorporate by reference, into a brief, points and authorities contained in trial court papers, even if such papers are made a part of the appellate record." (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2.; Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 334 [same].)
If an appellant merely incorporates by reference arguments made in papers filed in the trial court, the appellant's contention will be deemed forfeited on appeal. (Keyes v. Bowen, supra, 189 Cal.App.4th at p. 656.) LSA has forfeited its argument as to costs.
DISPOSITION
The judgment is affirmed. The Gerigs shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Hull, J.