Filed 5/20/22 Greater Liberty Baptist Church Corp. v. Peters CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed.

Decker Law and James D. Decker for Defendants, Cross-Complainants and Appellants.

Travillion Law Firm and Tiffany N. Travillion for Plaintiff and Respondents.

As explained in our opinion, this appeal arises out of two orders issued by the trial court: (1) an injunction, directing the parties to conduct an election for corporate officers/board of directors, and (2) an order appointing a receiver to oversee the election. In this appeal, appellants challenge both orders on a variety of procedural and substantive grounds. We conclude, however, that appellants have forfeited their assertions of error by failing to raise them in the trial court.

Accordingly, we affirm the court’s orders.

BACKGROUND

1. Complaint Filed on Behalf of Greater Liberty Baptist Church Corporation Against Appellants

On June 7, 2018, Greater Liberty Baptist Church Corporation (Greater Liberty or the Church) filed suit against appellants Brian W. Peters, Corey W. Peters, Regina W. Peters, and Dawn L. Jones. The complaint alleged that Dr. Peters, along with Corey Peters, had “fraudulently” filed statements of information on behalf of the Church with the Secretary of State, naming Dr. Peters as the CEO and Corey Peters as the Secretary.[1] The complaint further alleged that the filings of these fraudulent statements were followed by appellants seizing and selling off corporate assets, discontinuing church business operations, and threatening to evict tenants from church owned rental properties.

The first cause of action, for declaratory relief, sought a determination that the statements of information filed by defendants were “void for fraud” and that the “only persons authorized to act on behalf of [the Church] are its 2018 Board of Trustee Members as of April 15, 2018.” The second and third claims alleged tortious actions for conversion and intentional interference with business relationships.

The prayer sought a host of remedies, including injunctive relief.

2. Cross-Complaint Filed by Appellants Against Individual Members of the Church Board of Trustees—i.e., Respondents

On June 26, 2018, appellants filed a cross-complaint against the individual members of the Church Board of Trustees, followed by a first amended cross-complaint on January 23, 2019. The amended cross-complaint alleged that the actions of appellants were authorized and proper, instead it was the cross-defendants (hereinafter respondents) who committed fraud and tortious acts.

The cross-complaint included requests for declaratory and injunctive relief.

3. Trial Court Order Granting Appellants’ Motion for Judgment on the Pleadings and Ordering Election

On March 2, 2020, appellants filed four motions for judgment on the pleadings (MJP) seeking to have the complaint dismissed in its entirety without leave to amend. One of the main arguments was that Greater Liberty’s counsel of record did not have authority to file suit on behalf of the Church because she did not represent any officers of the Church or members of the Church’s Board of Directors, but rather members of the Church’s Board of Trustees who lacked authority to initiate a lawsuit on behalf of the Church.

On November 4, 2020, the trial court issued a written order on the MJP. After taking judicial notice of the cross-complaint, the trial court noted it was faced with “an internal struggle between ‘warring factions’ at [Greater Liberty].” The court then concluded that although the instant matter involved a dispute over ownership or control of property, the complaint was driven by allegations that internal Church members and officials had deemed Dr. Peters to be lacking in “character fitness and aptitude” to serve as CEO and/or Pastor. As such, the court could not “resolv[e]” the question of “who is in charge of the church” without transgressing the First and Fourteenth Amendments of the Constitution which prohibit civil courts from intervening in matters that involve religious doctrine or practice.

Nevertheless, citing Singh v. Singh (2004) 114 Cal.App.4th 1264, 1280 (Singh), the court determined it could adjudicate the dispute by employing a neutral-principles-of-law approach and ordering a fresh election for church board members or officers.[2] The trial court accordingly directed the parties to hold a special election to establish the appropriate Board of Directors/Church Officers; the court then granted appellants’ motion for MJP on the Church’s complaint without leave to amend.

At the next status hearing on November 23, 2020, the court issued a second order stating it would appoint a receiver to oversee the election and operation of the church, and modified the judgment on the MJP, prepared by appellants. The judgment, entered the following day on November 24, 2020, reflected the MJP granted on November 4, but stated the judgment would be held in abeyance pending the outcome of the election. The judgment further stated that neither party was to act without the approval and consent of the receiver scheduled to be appointed by the court on December 1, 2020.

On January 25, 2021, appellants filed a notice of appeal designating the court’s November 24 “judgment or order in this case” as the matter on appeal.

DISCUSSION

In their opening brief, appellants raise numerous procedural and substantive challenges to the trial court’s orders mandating the parties conduct an election and appointing a receiver to oversee the election. Respondents counter by raising their own set of procedural issues and arguing that appellants have failed to affirmatively establish that the trial court committed error.

In the discussion that follows, we address the arguments necessary for our disposition of this appeal.

I. Appealability

Appellants filed their notice of appeal on January 25, 2021, designating the order or judgment from which they appealed as having been entered on “November 24, 2021”—the date the court allegedly entered its judgment on their motion for judgment on the pleadings.[3] Respondents contend that the notice is defective because it “only states they are appealing the November 24, 2020 judgment” and yet “their opening brief deals entirely with orders that were made separate from the November 24th judgment.” We disagree that the voting and receivership orders are divorced from the court’s November 24 judgment and therefore conclude that the notice filed is adequate to invoke our appellate jurisdiction.

A. Relevant Legal Principles

California Rules of Court, rule 8.100(a)(2) states that “[t]he notice of appeal must be liberally construed.” While the “timely filing of a notice of appeal is an absolute jurisdictional prerequisite . . . , technical accuracy in the contents of the notice is not.” (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882–883 (K.J.).) “Once a notice of appeal is timely filed, the liberal construction requirement compels a reviewing court to evaluate whether the notice, despite any technical defect, nonetheless served its basic function—to provide notice of who is seeking review of what order or judgment—so as to properly invoke appellate jurisdiction.” (Id. at p. 883.)

A notice is sufficient if it is “reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.” (Luz v. Lopes (1960) 55 Cal.2d 54, 59.)

B. Application

The notice filed by appellants from the November 24 judgment was adequate under the circumstances.

First, appellants identified the appealable order or judgment by checking the box for “[a]n order or judgment under Code of Civil Procedure,^[[4]] § 904.1(a)(3)-(13).” In selecting this category, appellants necessarily omitted the subdivision for a final judgment (subd. (a)(1)), and instead included the subdivisions for an “order granting or dissolving an injunction” (subd. (a)(6)) and “an order appointing a receiver” (subd. (a)(7)). In their civil case information statement, appellants noted the November 24 judgment was appealable because “[t]he judge abused discretion by ordering [a church] election.”

Second, the November 4 order requiring the parties to hold an election was made in the context of a broader order granting appellants’ motion for judgment on the pleadings (MJP). The latter type of order is generally not appealable until after judgment has been entered. (Carley v. City of Santa Rosa (1957) 154 Cal.App.2d 214, 215; see also K.J., supra, 8 Cal.5th at p. 883.) Yet here, the trial court followed its November 4 order with an order appointing a receiver to oversee the election and modified the judgment prepared by appellants to reflect that the judgment on the MJP would be held in abeyance pending the election. The court further modified the judgment to prohibit either party from acting without the approval and consent of the receiver. In so doing, the court effectively incorporated its orders for an election and receivership into the judgment. And, while the judgment on the MPJ was rendered non-final by the abeyance hold (see City of Los Angeles v. Superior Court (2015) 234 Cal.App.4th 275, 280), the orders for an election and receivership were in and of themselves subject to appeal. (See Pahl v. Ribero (1961) 193 Cal.App.2d 154, 160 [even if the judgment itself was interlocutory, the portion relating to the court’s ruling on an injunction was appealable]; see also County of Sacramento v. Rawat (2021) 65 Cal.App.5th 858, 869 [trial court’s order appointing receiver was appealable pursuant to § 904.1, subd. (a)(7)]; Western Electroplating Co. v. Henness (1959) 172 Cal.App.2d 278 [all orders granting or refusing injunctions, whether temporary or permanent or provisional pending appeal, shall be appealable].)[5]

Under these circumstances, respondents were not misled by the notice of appeal. (Luz v. Lopes, supra, 55 Cal.2d at p. 59; see also Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 961 [notices of appeal are liberally construed and valid if there is no confusion on part of respondent as to what is being appealed].)[6] The notice filed by appellants on January 25, 2021 is therefore adequate to invoke our appellate jurisdiction.

II. Appellants Have Forfeited the Contentions Raised on Appeal

Respondents point out that “[a]ppellants never objected to the appointment of a receiver or to the order for an election until the election process was already under way.” We agree.[7]

A. Relevant Law

“The forfeiture rule generally applies in all civil and criminal proceedings.” (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264; see also In re Anthony P. (1995) 39 Cal.App.4th 635, 641 [citing examples].) Under this rule, “a reviewing court . . . will not consider a challenge to a ruling if an objection could have been but was not made in the trial court.” (In re S.B. (2004) 32 Cal.4th 1287, 1293.) “The purpose of [the] rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.” (Ibid.) The rule is also “designed to advance efficiency and deter gamesmanship.” (Keener v. Jeld-Wen, Inc., supra, 46 Cal.4th at p. 264.)

As explained in People v. Simon (2001) 25 Cal.4th 1082 (Simon): “No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. . . . [Citation.] [¶] . . . The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal. [Citation.]” (Simon, supra, 25 Cal.4th at p. 1103, internal quotation marks omitted.) Thus, absent issues that implicate the trial court’s fundamental jurisdiction—i.e., authority over the subject matter and/or parties before the court—arguments raised for the first time on appeal remain subject to forfeiture and waiver rules. (People v. Ford (2015) 61 Cal.4th 282, 286–287, People v. Tindall (2000) 24 Cal.4th 767, 776; Saffer v. JP Morgan Chase Bank, N.A. (2014) 225 Cal.App.4th 1239, 1248.)

A necessary corollary to these rules is that the “[a]ppellant must affirmatively show error by an adequate record; error is never presumed.” (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448; see also Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [“It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal” and “f no citation ‘is furnished on a particular point, the court may treat it as waived’”].)

B. [i]Application

Appellants do not claim they raised any of their appellate arguments in the trial court. Moreover, the record before this court reflects that appellants effectively acquiesced in the trial court’s orders.

First, after the court issued its November 4, 2020 order mandating the parties hold an election, counsel for appellants filed a “supplemental declaration” on November 20, in anticipation of the status hearing set by the court for November 23, 2020. In that declaration, counsel advised the court that respondents’ counsel was failing to communicate with him and further asserted that in light of the court’s dismissal of the Church’s complaint, the 2018 Board of Trustees should not be permitted to conduct the election, as it was the Church’s Board of Directors “that has been ordered to conduct an election of officers, akin to the decision by the Singh court.” In so stating, appellants’ counsel noted that “the [c]ourt does not make idle orders.”

The November 23 minute order reflects that the court reviewed this declaration and heard argument from counsel. Thereafter, the court ordered “[t]he parties . . . to set up the process for an election with a Court appointed Receiver” and stated that the court would select the receiver by December 1, 2020. Appellants do not claim that they objected to the court’s decision to order the appointment of a receiver at this hearing, nor do they argue that their supplemental declaration filed in advance of the hearing in any way preserved their challenges to the court’s orders. Indeed, appellants have not submitted a transcript of that hearing to this court.

The record next reflects a minute order from December 1, 2020, stating that “[p]ursuant to the orders made at the hearing on 11/23/2020,” the court “selects Warren Jackson . . . as the Receiver” in this case, with the parties ordered to contact Mr. Jackson on or before December 14 to engage his services.

Second, on December 7, 2020, counsel for appellants filed an ex parte application for an order nunc pro tunc correcting the December 1, 2020 order to substitute the words “[c]ounsel for Cross-Complainants and Cross-Defendants” for the words “[c]ounsel for plaintiff and defendant.” Meanwhile, counsel for respondents filed an ex parte application requesting the court order that appellants pay for the receiver.

On December 8, 2020, after a hearing on these ex parte applications, the court issued an order stating, inter alia, that “Mr. Jackson’s fees are to be shared equally between the two factions, i.e. the Defendants/Cross-Complainants and the Cross-Defendants.” During that December 8 hearing, appellants did not object to the court’s election order nor its appointment of a receiver to conduct such election. Instead, appellants focused their concerns on their ex parte application to clarify that the parties at issue were the defendants and cross-defendants, noting that the Church itself was effectively on “lockdown” in light of the court’s previous orders.[8] Appellants stated the court could alleviate their concerns by simply incorporating language from its prior orders to better inform the receiver that the relevant parties in the litigation were the defendants and cross-defendants, while the receiver would be conducting the election so the “corporation can start out fresh.” After the hearing, the court issued an order stating that “[the receiver’s] fees are to be shared equally between the two factions, i.e. the Defendants/Cross-Complainants and the Cross-Defendants,” and added the following directive: “The official records of Greater Liberty including bank account documents, membership roles, bylaws, minutes and other documents regarding the operation of the church and its properties/holdings are to be turned over to Mr. Jackson forthwith, and no later than December 10, 2020.”

Third, the next filing on record is a declaration of counsel for appellants filed on January 20, 2021 “advising [the] court of status after case sent to receiver/election officer.” Counsel complained that one of the appellants, Corey Peters, was not allowed to visit the church and further complained that counsel for respondents was misleading the receiver into believing that she represented the Church. Appellants requested the court make an order stating, inter alia, that “[n]either the Cross-Complainants nor the Cross-Defendants currently have any corporate powers to represent [the Church]” and directing the receiver “to continue its duty to supervise an election by general membership of a new Board of Directors for [the Church].”

A minute order issued on January 21, 2021, reflects a status hearing with counsel for both parties. The court declined to review the declarations lodged by the parties at this time, and ordered “all parties to cooperate with Receiver Warren Jackson to complete the election of officers of the church forthwith.” The minute order further reflects that counsel for appellants raised the issue of Corey Peters wanting to visit the church, and after the court conferred with counsel, ordered “that Corey Peters may visit the church.” The court set the next status conference for April 21, 2021.

Once again, appellants do not suggest their January 20, 2021 declaration constituted an objection to the trial court’s authority to order an election or appoint a receiver; indeed the declaration itself urged the court to direct the receiver “to continue its duty to supervise an election.”

Five days later, on January 25, 2021, appellants filed the instant notice of appeal from the November 24, 2020 judgment.[9]

What this record demonstrates is that despite numerous opportunities to object to the trial court’s orders, appellants neither objected nor raised any of the issues they advance in this court—i.e., (1) the court lacked authority (under Singh, or otherwise) to order an election (2) the court failed to provide adequate notice prior to issuance of its election order (3) the court lacked statutory authority to appoint a receiver and (4) the court’s orders are not supported by evidence or findings.

Instead, appellants proceeded to express approval of, and compliance with, the court’s orders through both their conduct and statements, including: (1) recognizing that the court “ordered . . . an election of officers, akin to the decision by the Singh court,” (2) stating “the Court does not make idle reorders,” and (3) stating that the receiver will conduct the election so the “corporation can start out fresh.” In so doing, appellants not only failed to preserve their claims, constituting forfeiture, but acquiesced in a manner suggestive of “affirmative waiver.” (In re S.B., supra, 32 Cal.4th at p. 1293, fn. 2 [“[A] person who fails to preserve a claim forfeits that claim,” whereas “waiver is the ‘“intentional relinquishment or abandonment of a known right”’”]; Lynch v. California Coastal Com. (2017) 3 Cal. 5th 470, 475 [intent to relinquish a right can be “implied, based on conduct that is ‘“so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished”’”].)[10] Regardless, the claims raised by appellants in this appeal are foreclosed from our review. (Keener v. Jeld-Wen, Inc., supra, 46 Cal.4th at p. 264; Simon, supra, 25 Cal.4th at p. 1103; cf. People v. Ford, supra, 61 Cal.4th at p. 288 [“We have long recognized that a failure to object can constitute implied consent to an act in excess of the court’s jurisdiction”].)

Accordingly, we affirm the trial court’s orders.

DISPOSITION

The trial court’s orders directing the parties to hold a special election to establish the appropriate Board of Directors/Church Officers and for the appointment of a receiver are affirmed.

Respondents are entitled to costs on appeal.

NOT TO BE PUBLISHED in the official reports.

WILLHITE, J.

We concur:

MANELLA, P. J.

MOOR, J.*

*Justice of the Second District Court of Appeal, Division Five, assigned by

the Chief Justice pursuant to article VI, section 6 of the California

Constitution.

[1] According to the complaint, Dr. Brian Peters had previously been stripped of his preaching assignments or duties within the Church and thereafter, during an election for interim Church CEO/Pastor, was deemed unfit for the interim CEO/Pastor position.

[2] In Singh, members of a Sikh temple brought an action under Corporations Code section 9220, subdivision (b), alleging the Temple’s Board of Directors had outlasted their terms and that a new election was required. (Singh, supra, 114 Cal.App.4th at p. 1281.) The Board of Directors insisted that their terms were life terms under Sikh tradition. (Ibid.)

Both the trial court and appellate court sided with plaintiffs finding that the Temple’s Bylaws were silent as to Director terms and thus Corporations Code section 9220, subdivision (b)’s default rule, one year for the board of directors, applied in this case. (Id. at p. 1295.) Since the dispute could be resolved without reference to religious doctrine or precepts, the trial court’s remedy for resolving the dispute did not result in an unconstitutional and excessive entanglement with religion. (Singh, supra, 114 Cal.App.4th at pp. 1286–1296.)

[3] In fact, the court entered the judgment in 2020. However, this error does not render the notice of appeal fatally defective. (Wilson v. Union Iron Works Dry Dock Co. (1914) 167 Cal. 539, 541.)

[4] All further references are to the Code of Civil Procedure unless otherwise indicated.

[5] Although respondents appear to accept the notion that the trial court’s election order is appealable as an injunction—and simply argue that the notice of appeal does not sufficiently identify that order, in a separate section of their brief respondents argue that the trial court’s election order does not qualify as an injunction at all. We disagree. (See PV Little Italy, LLC v. MetroWork Condominium Assn. (2012) 210 Cal.App.4th 132, 142–143 [explaining that whether a particular order constitutes an injunction depends not on its title or the form of the order, but on “‘“the substance and effect of the adjudication”’” and noting that an injunction includes “‘a writ or order requiring a person to refrain from a particular act’” or “command[ing] a person to perform a particular act”] & 143, fn. 5 [order directing parties to hold a new election was appealable as an injunction].)

[6] Indeed, respondents point out that appellants take “no issue with the judgment itself” and note that since appellants brought the MJP motion, “a judgment in their favor on that is not a thing they are likely to want to dispute.” We agree. (See § 902; Nevada County Office of Education v. Riles (1983) 149 Cal.App.3d 767, 779 [only those aggrieved by a judgment may appeal].) This then leaves only the court’s election/receivership orders referenced in the November 24 judgment.

[7] Although respondents discuss appellants’ failure to object to the trial court’s orders under the legal principles relating to an appellant’s duty to affirmatively show error on the appellate record—as opposed to direct forfeiture or waiver—these principles are interrelated as indicated by our discussion below. (Cf. Baron v. Fire Ins. Exchange (2007) 154 Cal.App.4th 1184, 1192 [stating that respondent’s position, though framed as one of “‘estoppel, ratification, and acquiescence’”—rather than “waiver or forfeiture”—had merit].)

[8] We note that although respondents state that appellants have failed to provide this court with a transcript of the December 8, 2020 proceedings, this court is in receipt of that transcript.

[9] On April 2, 2021, appellants filed a writ of supersedeas in this court under the instant appeal number, seeking an immediate stay “on the work of the receiver” pending appeal. (B310416, 4/2/2021) Yet, in their caption, appellants cited the date of the church election as “March 31, 2021”—several days before their filed writ. In their writ, appellants made no assertion that they at any time sought a stay in the trial court—or argued to the trial court that an automatic stay was in effect following entry of its orders.

In their brief, respondents state that the election took place on March 31, 2021, and that the receiver issued an order certifying the official results of the election on April 6, 2021. Appellants do not dispute these factual assertions in their reply brief. (See Western Bagel Co., Inc. v. Superior Court (2021) 66 Cal.App.5th 649, 655, fn. 2 [relying on undisputed statements in parties’ briefing].)

Appellants’ writ filing, in conjunction with the trial record provided, suggests that appellants strategically refrained from asserting any objections or stay requests until the election was held. This is exactly the type of gamesmanship, and waste of resources, the forfeiture rule was designed to prevent. (Keener v. Jeld-Wen, Inc., supra, 46 Cal.4th at p. 264; Simon, supra, 25 Cal.4th at p. 1103; People v. Kennedy (2005) 36 Cal.4th 595, 612; disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 458–459 [“[T]he forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error”].)

[10] Because the forfeiture rule squarely forecloses review of appellants’ claims, we need not determine whether appellants’ conduct also establishes the requirements of “affirmative waiver.”