Jodo Shu Betsuin v. Jodoshu North America Buddhist Missions

Filed 9/25/07 Jodo Shu Betsuin v. Jodoshu North America Buddhist Missions CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Jane L. Johnson, Judge. Reversed with directions.

Kitagawa & Ebert and James R. Ebert for Plaintiff and Appellant.

Pillsbury Winthrop Shaw Pittman, Kevin M. Fong, Jennie L. La Prade, and Daphne P. Bishop for Defendants and Respondents.

I. INTRODUCTION

The parties to this appeal are organizations and an individual associated with Jodo Shu, a Buddhist sect. Plaintiff, Jodo Shu Betsuin, appeals from a summary judgment entered in favor of defendants, Jodoshu North America Buddhist Missions (defendant) and Bishop Masahiko Asatani. Plaintiff is or was a Buddhist temple. Defendant is an umbrella organization that oversees Jodo Shu operations in North America. Bishop Asatani is an officer and bishop of defendant and a former member of plaintiffs board of trustees. Both plaintiff and defendant are California non-profit religious corporations. (Corp. Code, 9110 et seq.) Plaintiff was expelled from the Jodo Shu organization. The expulsion resulted from a dispute involving the religious leadership of plaintiffs temple. Defendant barred plaintiff from use of temple property. Plaintiff sought to recover as damages its financial and personal property investments in the construction and operation of the temple building. The trial court found the dispute between plaintiff and defendants is a religious disagreement over which the civil courts have no jurisdiction. The trial court entered a summary judgment. Plaintiff appealed. We reverse the summary judgment, but direct entry of an order granting summary adjudication of the first cause of action for wrongful eviction.

II. BACKGROUND

A. The Underlying Dispute

The following evidence was undisputed. Jodo Shu is a Buddhist sect. It is a hierarchical organization headed by religious and administrative authorities in Japan. The person holding the position of Jodo-monsu heads the Jodo Shu religion. The Jodo Shu Religious Corporation (JRC) manages and administers Jodo Shu temples worldwide. It has three branches: administrative; legislative (the Jodo Shu Parliament); and judicial (the Probationary Court). The secretary general is the highest ranking authority in the JRC and the chairperson of its board. Jodo Shu leaders in Japan oversee bishops throughout the world. The bishops in turn oversee the ministers and operations of local Jodo Shu churches. The JRC was named as a defendant in plaintiffs original complaint. However, plaintiff dismissed its action as to the JRC on November 20, 2003.

The secretary of the JRCs Department of Social and International Affairs oversees Jodo Shu temples in countries other than Japan. These are referred to as overseas districts. The Department of Social and International Affairs has jurisdiction over overseas districts or missions pursuant to title 3, chapter 1, section 17, paragraph 4 of the Compilation of Jodo Shu Rules and Regulations. The decision whether to terminate the relationship between the Jodo Shu religion and an overseas temple is made by the Department of Social and International Affairs and ultimately by the JRCs secretary general. Rule 6, section 1-2, paragraph 1 of the Jodo Shu Rules Regarding Temples and Churches requires all temples be registered in the Jodo Shu temple register. If the relationship between Jodo Shu and an overseas temple is severed: the temple is removed from the registry; it ceases to be a Jodo Shu temple; and the overseas temple is no longer affiliated with the Jodo Shu religious organization.

Plaintiff was incorporated on March 10, 1959. The articles of incorporation state in part: [T]his mission or church shall be established, maintained and conducted for the purpose of religious worship in accordance with the discipline, faith, ecclesiastical rule, custom, tenets and doctrines of the JODO Sect of the Buddhist faith, according to the rules, regulations and discipline of said faith; that the priest of this mission or church shall at all times be a member of said faith duly ordained by the hierarchy thereof, and that all members of the congregation of this mission or church shall at all times be in a true accord with the tenets, doctrines and disciplines of said JODO Sect. [] . . . That additional purposes for which said corporation is formed are as follows, . . . : [] . . . To build, establish, construct and maintain in the City of Los Angeles, a mission or a house of worship in accordance with the tenets, discipline, faith, ecclesiastical rule and customs of the JODO Sect of the Buddhist faith for members of said Sect who desire to adhere to and join in the religious principles of said Sect. Initially, plaintiff occupied a temple on Jefferson Avenue in Los Angeles. In 1979, Jodo Shu leaders in Japan appointed Satoru Kawai as bishop of Jodoshu North America and Betsuins head minister. Bishop Kawai determined it would be prudent to move the temple to a safer neighborhood.

In 1988, defendant was formed as an umbrella organization to oversee Jodo Shu operations in North America. Defendant was incorporated on April 20, 1988. Defendants articles of incorporation state, The specific purpose of this [nonprofit religious] corporation is to operate a church. Defendants board of directors consists of: defendants bishop; the JRCs six highest ranking administrative branch religious leaders, including the secretary of the Department of Social and International Affairs; and the JRCs secretary general. The JRCs secretary general also serves as chairperson of defendants board.

Plaintiff became affiliated with the JRC and defendant on December 29, 1989 pursuant to a Memorandum Concerning Establishment of [Jodoshu] Missions. Plaintiff agreed therein, [F]or so long as the parties mutually agree, [plaintiff] shall be an organization associated with [defendant], in accordance with the rules of Jodoshu, and in accordance with Article IV, Related Organizations, of the By-Laws of [defendant]. Plaintiff also agreed the JRC would appoint defendants bishop, whose term of office would be three years.

In 2000, a dispute arose involving plaintiff, defendant, and the JRC after Reverend Shobo Ishihara and Reverend Kodo Tanaka were appointed to the temple by Jodo Shu leaders in Japan. Plaintiffs board of trustees demanded that the two priests be terminated or returned to Japan. On April 15, 2001, one or more of plaintiffs trustees allegedly accosted Reverend Tanaka. On May 3, 2001, Satoru Kawaidefendants bishop and plaintiffs head ministerretired or resigned from his positions effective July 31, 2001. Bishop Asatani was appointed by the JRC to replace Bishop Kawai. Subsequently, Harumitsu Ishi, one of plaintiffs trustees, filed a defamation action against Reverends Ishiara and Tanaka. The lawsuit alleged Mr. Ishi was wrongfully accused of accosting Reverend Tanaka. The lawsuit was settled in October 2002. Following the settlement, plaintiffs board of trustees continued to insist that Reverends Ishihara and Tanaka return to Japan. Plaintiffs board of directors demanded that the two ministers not be allowed to lead or participate in services. Further, the board refused to recognize Bishop Asatani as defendants authorized representative.

On May 9, 2003, defendants board of directors held a meeting to discuss plaintiffs demands. The board authorized Bishop Asatani to terminate plaintiffs affiliation with Jodo Shu if the dispute could not be amicably resolved. Plaintiffs demands continued and escalated. On July 9, 2003, plaintiffs trustees sent a letter to Bishop Asatani. The letter ordered Bishop Asatani not to use Reverend Ishihara or Reverend Tanaka in religious services conducted at the temple. On July 21, 2003, plaintiffs trustees sent a letter to defendants board of directors. The July 21, 2003 letter stated that plaintiffs board refused to recognize Bishop Asatani as bishop. By letter dated August 2, 2003, Bishop Asatani warned plaintiffs board of trustees the affiliation with defendant was in jeopardy. The August 2, 2003 letter stated the relationship would be terminated unless plaintiff participated in reestablishing an amicable relationship with defendant. On August 25, 2003, plaintiffs board of trustees again demanded in writing that the two ministers be reassigned someplace outside the United States. The board further demanded that Bishop Kawai replace Bishop Asatani, and defendant, JRC, and plaintiff enter into a written agreement concerning the rights to use the temple. On September 9, 2003, Archbishop MizutaniJRCs secretary general and defendants board chairpersonsent a letter to plaintiffs board of trustees. The letter confirmed Bishop Asatanis authority to act on defendants behalf and rejected plaintiffs demands. Archbishop Mizutani also reminded plaintiffs trustees, [T]o the extent [plaintiff] engages in religious functions at the Jodo Shu temple, it does so as part of the Jodo Shu sect of the Buddhist faith, not some separate and independent religious institution, and is bound to follow the rules of Jodo Shu and the instructions and directions of Jodoshu Missions.

Bishop Asatani was unable to resolve plaintiffs trustees demands. As noted, defendant was the Jodo Shu umbrella organization. Defendants board of directors had the authority to terminate the relationship with plaintiff. Defendants board of directors included the secretary of the JRC Department of Social and International Affairs and the secretary general. On September 26, 2003, defendant informed plaintiff the affiliation was terminated. Defendant acted under Article 6 of the Memorandum Concerning Establishment of Jodoshu North America Buddhist Missions which states, [Plaintiff] hereby agrees that, for so long as the parties mutually agree, [plaintiff] shall be an organization associated with the [defendant], in accordance with the rules of Jodoshu . . . . Defendant also: revoked plaintiffs right to use the temple effective October 31, 2003; advised plaintiff it could no longer conduct Jodo Shu religious services as of October 31, 2003; and notified plaintiff it would no longer be a Jodo Shu temple as of that date. On November 1, 2003, Bishop Asatani reported to Archbishop Mizutani, JRCs secretary general and chairperson of defendants board, that plaintiffs termination had become effective. On November 27, 2003, Archbishop Mizutani and the JRC confirmed the termination of the relationship between defendant and plaintiff. They also confirmed Bishop Asatanis resignation as plaintiffs head minister. The termination was registered in the temple registry. Defendant took over operation of the temple.

Plaintiff has continued to hold itself out as a Jodo Shu temple and to conduct the sects religious services. Plaintiff did so even though the highest authorities of the Jodo Shu religion have forbidden it to do so. Plaintiffs religious services were conducted by Satoru Kawai and Kent Kawai, who were not Jodo Shu ministers. Plaintiff was unaware of any writing that gives its board of trustees authority to retain Satoru and Kent Kawai to conduct Jodo Shu religious services.

B. The Operative Pleading: The Third Amended Complaint

Plaintiff filed its original complaint on October 29, 2003. The operative pleading is a third amended complaint filed on July 8, 2004. The third amended complaint includes causes of action for wrongful eviction, conversion, and partnership dissolution. Plaintiff has abandoned its causes of action for trade secret misappropriation and intentional economic relationship interference.

Plaintiffs third amended complaint alleges as follows. In the early 1980s, plaintiff wanted to purchase certain real property in Los Angeles in order to build a Buddhist temple on the property. A Japanese educational institution, Bukkyo University, wanted to contribute money for the purchase of the real property and temple construction. However, the Japanese government would not allow Bukkyo University to contribute money to a religious organization. Defendant was established in April 1988 to accept the donation. At the time defendant was formed, the parties understood it would hold title to and manage the real property. But defendant was to manage the temple for plaintiffs benefit. Defendant is the legal owner of record of the real property and the temple.

The first cause of action, for wrongful eviction, alleges the existence of an oral lease agreement. Plaintiff was to have a permanent right to occupy a portion of the temple in return for paying a share of the construction and furnishings costs and one-third of the operating expenses. In reliance on the oral lease agreement, plaintiff paid $750,000 in construction costs, and donated furnishings worth $650,000. After the temple was completed, plaintiff took possession of a portion of the temple and paid one-third of the operating expenses. On September 26, 2003, defendant wrongfully evicted plaintiff from the temple effective October 31, 2003. Plaintiff has been damaged in a sum of not less than $1.4 million consisting of $750,000 in constructions costs paid and $650,000 in personal property delivered. The second cause of action is for conversion of specified personal property including computers, statuettes, and an altar. Plaintiff alleges it was at all times the owner of the property. It at no time relinquished ownership of the specified property. Further, defendants refused to allow plaintiff to remove the property from the temple. Plaintiff seeks $650,000 in damages, equal to the value of the converted property.

The third cause of action seeks an order dissolving an oral partnership between plaintiff and defendant, costs of suit, and such other relief as the court may deem proper. Plaintiff alleges: the existence of an oral partnership agreement for the acquisition and construction of the temple; upon its completion of the temple, the partners were to share in the profits and losses; defendant breached the oral partnership agreement by wrongfully revoking plaintiffs right to use the temple property; and plaintiff is entitled to dissolution pursuant to Corporations Code section 16801, subdivisions (5)(B) and (C) because it is not reasonably practicable to carry on the partnership.

C. Defendants Summary Judgment or Issue Adjudication Motion

Defendants filed a summary judgment or issue adjudication motion on December 9, 2005. Their principal argument was that this is a religious dispute over which the civil courts have no subject matter jurisdiction. The trial court agreed and entered a judgment in defendants favor. This appeal followed.

III. DISCUSSION

A. Standards Of Review

We apply the following summary judgment standard of review as articulated by our Supreme Court in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851: [F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a courts action in his favor bears the burden of persuasion thereon. [Citation.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof . . . . [] . . . [T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.] (Fns. omitted; see Kids Universe v. In2Labs (2002) 95 Cal.App.4th 870, 877-878.) We review the trial courts decision to enter summary judgment de novo. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68; Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188, disapproved on another point in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19.) The trial courts stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196; Dictor v. David & Simon, Inc. (2003) 106 Cal.App.4th 238, 245.)

The Supreme Court has further held: In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107), liberally construing her [or his] evidentiary submission while strictly scrutinizing [the moving partys] own showing, and resolving any evidentiary doubts or ambiguities in [the opposing partys] favor. [Citations.] (Saelzle v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.) A summary judgment motion is directed to the issues framed by the pleadings. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.) We review de novo the conclusion, on undisputed facts, that the civil courts have no jurisdiction because the present dispute is an ecclesiastical one. (Concord Christian Center v. Open Bible Standard Churches (2005) 132 Cal.App.4th 1396, 1407-1408; Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131 Cal.App.4th 417, 430; see Metropolitan Philip v. Steiger (2000) 82 Cal.App.4th 923, 928-932.)

B. Jurisdiction Of The Civil Courts

1. Governing Law

The First Amendment to the United States Constitution provides in relevant part, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. That provision is binding on the states under the Fourteenth Amendment to the United States Constitution. (Elk Grove Unified School District v. Newdow (2004) 542 U.S. 1, 8, fn. 4; see Cantwell v. State of Connecticut (1940) 310 U.S. 296, 303.) The United States Supreme Court has made the applicable federal Constitutional restrictions clear in the context of litigation involving religious institutions. The role of the civil courts is severely circumscribe[d]. (Jones v. Wolf (1979) 443 U.S. 595, 602; Serbian Eastern Orthodox Diocese v. Milivojevich (1976) 426 U.S. 696, 709 (Serbian Eastern Orthodox Diocese); Presbyterian Church v. Hull Church (1969) 393 U.S. 440, 449.) The civil courts cannot interfere in disputes relating to religious doctrine, practice, faith, ecclesiastical rule, discipline, custom, law, or polity. (Serbian Eastern Orthodox Diocese, supra, 426 U.S. at pp. 708-709, 713; Presbyterian Church v. Hull Church, supra, 393 U.S. at p. 449; Rosicrucian Fellowship v. Rosicrucian Fellowship Non-Sectarian Church (1952) 39 Cal.2d 121, 131-132.) The term polity has been described by the Court of Appeal: Polity refers to the general governmental structure of a church, the organs of authority and the allocation and locus of its judicatory powers as defined by its own organic law. (Brady v. Reiner (W.Va. 1973) 198 S.E.2d 812, 827 [disapproved on another point in Board of Church Extension v. Eads (W.Va. 1976) 230 S.E.2d 911, 955, fn.6]; see also Note, Judicial Intervention in Disputes Over the Use of Church Property (1962) 75 Harv.L.Rev. 1142, 1143-1144.) (Barr v. United Methodist Church (1979) 90 Cal.App.3d 259, 267, fn. 6.) The prohibition against civil court participation in sectarian disputes extends to issues involving membership, clergy credentials and discipline, and religious entity governance and administration. (Jones v. Wolf, supra, 443 U.S. at pp. 602, 603-604; Concord Christian Center v. Open Bible Standard Churches, supra, 132 Cal.App.4th at p. 1411.)

Jodo Shu is a hierarchical religious organization. The Court of Appeal has explained: By definition, a hierarchical church is one in which individual churches are organized as a body with other churches having similar faith and doctrine[, and] with a common ruling convocation or ecclesiastical head vested with ultimate ecclesiastical authority over the individual congregations and members of the entire organized church. (Kedroff v. St. Nicholas Cathedral (1952) 344 U.S. 94, 110 & fn. 15; Watson v. Jones [(1871)] 80 U.S. [679,] 722-723.) It has long been established that in such a hierarchical church, an individual local congregation that affiliates with the national church body becomes a member of a much larger and more important religious organization, . . . under its government and control, and . . . bound by its orders and judgments. (Watson v. Jones, supra, 80 U.S. at pp. 726-727; see Committee of Missions v. Pacific Synod (1909) 157 Cal. 105, 128; Wheelock v. FirstPresb.Church (1897) 119 Cal. 477, 485.) In contrast, a congregational church is defined as one strictly independent of other ecclesiastical associations, and [one that] so far as church government is concerned, owes no fealty or obligation to any higher authority. (Watson v. Jones, supra, 80 U.S. at p. 722.) (Concord Christian Center v. Open Bible Standard Churches, supra, 132 Cal.App.4th at p. 1409.)

As described above, Jodo Shu is headed by religious and administrative authorities in Japan. The JRC manages and administers Jodo Shu temples worldwide. The JRCs Department of Social and International Affairs oversees Jodo Shu temples in countries other than Japan. Defendant oversees Jodo Shu operations in North America. Plaintiff was affiliated with defendant. The decision whether to terminate the relationship between Jodo Shu and an overseas temple is made by the JRCs Department of Social and International Affairs and its secretary general. The decision to end plaintiffs affiliation with Jodo Shu was made by defendants board of directors. The termination of the relationship was confirmed by the JRC and its secretary general, Archbishop Mizutani.

The United States Supreme Court has held that in the case of hierarchical religious entities, as here, the civil courts must accept as binding and defer to decisions by religious tribunals with respect to religious doctrine, practice, faith, ecclesiastical rule, discipline, custom, law, and religious entity governance and administration. (Jones v. Wolf, supra, 443 U.S. at p. 602; Serbian Eastern Orthodox Diocese, supra, 426 U.S. at pp. 708-709, 713; Watson v. Jones, supra, 80 U.S. at pp. 728-729; accord, Catholic Charities of Sacramento, Inc. v. Superior Court (2004) 32 Cal.4th 527, 541-542; Committee of Missions v. Pacific Synod (1909) 157 Cal. 105, 128; Horsman v. Allen (1900) 129 Cal. 131, 138-139.) In the early case of Watson v. Jones, supra, 80 U.S. at page 727a diversity case decided before the First Amendment had been made applicable to the states through the Fourteenth Amendmentthe United States Supreme Court held: In this class of cases [involving hierarchical religious tribunals] we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.

In an often-cited passage, the United States Supreme Court in Watson v. Jones, supra, 80 U.S. at pages 728-729explained: In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.

More recently, in Serbian Eastern Orthodox Diocese, the United States Supreme Court explained: [W]here resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them. [Citation.] (Serbian Eastern Orthodox Diocese, supra, 426 U.S. at p. 709.)

In Serbian Eastern Orthodox Diocese, the United States Supreme Court held a civil court could not constitutionally invalidate an ecclesiastical decision to defrock a bishop. (Serbian Eastern Orthodox Diocese, supra, 426 U.S. at pp. 717-720; see Lewis v. Seventh Day Adventists Lake Region Conference (6th Cir. 1992) 978 F.2d 940, 942.) In Serbian Eastern Orthodox Diocese, the decision to defrock the bishop had been made by an ecclesiastical tribunal of a hierarchical church. The Illinois Supreme Court held the defrocking decision could be invalidated by a court because the churchs action violated its own policies and rules. The United States Supreme Court concluded: In short, under the guise of minimal review under the umbrella of arbitrariness, the Illinois Supreme Court has unconstitutionally undertaken the resolution of quintessentially religious controversies whose resolution the First Amendment commits exclusively to the highest ecclesiastical tribunals of this hierarchical church. (Serbian Eastern Orthodox Diocese, supra, 426 U.S. at p. 720; accord Silo v. CHW Medical Foundation (2002) 27 Cal.4th 1097, 1106 [selection and termination of clergy or ecclesiastical leadership should be essentially off limits to courts].)

However, a state has a legitimate interest in resolving property disputes in its civil courts, and may do so even when incidental ecclesiastical matters are present, so long as the matter can be resolved without the court becoming entangled in religious disputes. (Jones v. Wolf, supra, 443 U.S. at p. 602; Serbian Eastern Orthodox Diocese, supra, 426 U.S. at p. 709; Presbyterian Church v. Hull Church, supra, 393 U.S. at pp. 441-449; Providence Baptist Church v. Superior Court (1952) 40 Cal.2d 55, 60-61; Rosicrucian Fellowship v. Rosicrucian Fellowship Non-Sectarian Church, supra, 39 Cal.2d at p. 131.) Conversely, if resolution of a religious dispute determines the control or possession of the property at issue, the sectarian authoritys decision is not subject to judicial review. (Serbian Eastern Orthodox Diocese, supra, 426 U.S. at p. 709; see Hines v. Turley (Ill.App. 1993) 615 N.E.2d 1257, 1259.) In Serbian Eastern Orthodox Diocese, the United States Supreme Court found resolution of the religious dispute over a bishops defrockment determined control of the property at issue; therefore, resolution of the matter was for ecclesiastical and not civil tribunals. (Serbian Easter Orthodox Diocese, supra, 426 U.S. at p. 709; see Singh v. Singh (2004) 114 Cal.App.4th 1264, 1279.) Succinctly stated, [T]he First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice. [Citations.] (Jones v. Wolf, supra, 443 U.S. at p. 602; see California-Nevada Annual Conf. of the United Methodist Church v. St. Lukes United Methodist Church (2004) 121 Cal.App.4th 754, 762-763.)

A state may adopt any one of several methods for resolving property disputes involving religious organizations in its civil courts. (Jones v. Wolf, supra, 443 U.S. at pp. 602-603; see Singh v. Singh, supra, 114 Cal.App.4th at pp. 1279-1280.) [N]eutral principles of law is one such approach. (Jones v. Wolf, supra, 443 U.S. at p. 602; California-Nevada Annual Conf. of the United Methodist Church v. St. Lukes United Methodist Church, supra, 121 Cal.App.4th at p. 763.) To resolve a dispute as to property held or claimed by a religious entity, a civil court may examine state statutory law, deeds, corporate or association charters, religious entity constitutions, and the like. (Jones v. Wolf, supra, 443 U.S. at pp. 602-604; Maryland & Va. Eldership of the Churches of God v. Church of God at Sharpsburg, Inc. (1970) 396 U.S. 367, 367-368; Presbyterian Church v. Hull Church, supra, 393 U.S. at p. 449.) In Presbyterian Church, the United States Supreme Court explained, [T]here are neutral principles of law, developed for use in all property disputes, which can be applied without establishing churches to which property is awarded. (Presbyterian Church v. Hull Church, supra, 393 U.S. at p. 449.) In Jones, the United States Supreme Court held, [A] State is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute. (Jones v. Wolf, supra, 443 U.S. at p. 604; see Singh v. Singh, supra, 114 Cal.App.4th at p. 1283.) The California Courts of Appeal repeatedly have employed or approved the neutral principles of law approach to resolving religious entity property disputes. (Concord Christian Center v. Open Bible Standard Churches, supra, 132 Cal.App.4th at pp. 1411-1412; California-Nevada Annual Conf. of the United Methodist Church v. St. Lukes United Methodist Church, supra, 121 Cal.App.4th at pp. 762-763; Guardian Angel Polish Nat. Catholic Church of Los Angeles, Inc. v. Grotnik (2004) 118 Cal.App.4th 919, 930; Singh v. Singh, supra, 114 Cal.App.4th at pp 1274-1281; Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 277-279; Church of Christ in Hollywood v. Superior Court (2002) 99 Cal.App.4th 1244, 1256; Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1081; Berry v. Society of St. Pius X (1999) 69 Cal.App.4th 354, 358, 364-365; Vukovich v. Radulovich (1991) 235 Cal.App.3d 281, 291-292; St. Sava Mission Corp. v. Serbian Eastern Orthodox Diocese (1990) 223 Cal.App.3d 1354, 1368-1369; Protestant Episcopal Church v. Barker (1981) 115 Cal.App.3d 599, 614; Barr v. United Methodist Church, supra, 90 Cal.App.3d at pp. 270, 273-276; Presbytery of Riverside v. Community Church of Palm Springs (1979) 89 Cal.App.3d 910, 919-923; Wilson v. Hinkle (1977) 67 Cal.App.3d 506, 510-511; Queen of Angels Hospital v. Younger (1977) 66 Cal.App.3d 359, 370-371; Samoan Congregational etc. Church in U.S. v. Samoan Congregational etc. Church of Oceanside (1977) 66 Cal.App.3d 69, 75-77; In re Metropolitan Baptist Church of Richmond, Inc. (1975) 48 Cal.App.3d 850, 858-859.)

2. Application To The Present Case

Plaintiff argues its disaffiliation was not an ecclesiastical pronouncement. Plaintiff reasons this is so because the disputes between its trustees and Reverends Ishihara and Tanaka did not involve religious issues. Plaintiff asserts, The disputes between [plaintiff] and [Reverends] Ishihara and Tanaka have never involved doctrine or creeds, rather the disputes involve the actions of [Reverends] Ishihara and Tanaka in circulating false allegations regarding the conduct of [Bishop] Kawai. On one hand, plaintiff asserts it is not asking the court to set aside the revocation of its affiliation with Jodo Shu. On the other hand, plaintiff does contend that in resolving its damages requests the court should consider whether: the September 6, 2003 disaffiliation determination was consistent with Jodo Shu rules and regulations; defendant followed its own written procedures; and defendant breached the good faith and fair dealing implied covenant in the December 29, 1989 memorandum when it revoked plaintiffs affiliation. However, we agree with defendant that the September 6, 2003 JRC decision to exclude plaintiff from the Jodo Shu religious organization is not subject to judicial review. Whether plaintiff should retain its affiliation with Jodo Shu was a question of internal church governance. As discussed above, the United States Supreme Court has held that questions of internal church governance are at the core of ecclesiastical concerns. (Serbian Eastern Orthodox Diocese, supra, 426 U.S. at pp. 708-709, 721; Presbyterian Church v. Hull Church, supra, 393 U.S. at p. 448; Kedroff v. St. Nicholas, supra, 344 U.S. at p. 116; Watson v. Jones, supra, 80 U.S. at pp. 728-729.) The September 6, 2003 disaffiliation decision was made by tribunals in a hierarchical religious organization, and, is not subject to judicial review. Thus, we may not consider plaintiffs assertions defendants breached the December 29, 1989 memorandum or the decision was inconsistent with Jodo Shu rules and regulations. (Jones v. Wolf, supra, 443 U.S. at p. 602; Serbian Eastern Orthodox Diocese, supra, 426 U.S. at pp. 708-709; Presbyterian Church v. Hull Church, supra, 393 U.S. at p. 448; Kedroff v. St. Nicholas, supra, 344 U.S. at p. 116; Catholic Charities of Sacramento, Inc., supra, 32 Cal.4th at pp. 541-542; Silo v. CHW Medical Foundation, supra, 27 Cal.4th at pp. 1106-1107; Permanent Committee v. Pacific Synod, supra, 157 Cal. at p. 128; Horsman v. Allen, supra, 129 Cal. at pp. 138-139.)

We turn to the question whether defendants met their summary judgment or issue adjudication burden to show plaintiffs causes of actionfor wrongful eviction, conversion, and partnership dissolutioncannot be considered without involving a civil court in ecclesiastical matters in violation of the First Amendment. We conclude plaintiffs contract-based wrongful eviction cause of action cannot be resolved without becoming entangled in a dispute relating to religious polity. The decision to expel plaintiff from the Jodo Shu organization was made by religious authorities. The expulsion resulted from a dispute involving religious leadership. The religious leaders in question had been appointed by Jodo Shu leaders in Japan. The disaffiliation decision was confirmed at the highest levels of the hierarchical religious organization in Japan. The disaffiliation decision necessarily barred plaintiff from use of the temple property. Plaintiff engaged in religious functions at the temple as part of the Jodo Shu sect of the Buddhist faith. Plaintiffs eviction followed from its disaffiliation. As discussed above, as a constitutional matter, a civil court cannot inquire into or interfere with an ecclesiastical decision of this nature. A civil court cannot consider whether the disaffiliation decision, which led to the eviction, was wrongful. Defendant met its initial production burden. (Code Civ. Proc., 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) Plaintiff has not raised any triable issue as to whether it can prove a wrongful eviction without requiring a court, unconstitutionally, to consider whether the disaffiliation pronouncement was properly reached thereby justifying the eviction.

We conclude differently with respect to plaintiffs partnership dissolution claim. Defendants argue: Assuming there [was] any evidence of a partnership, the courts cannot adjudicate the partnership dissolution cause of action without inquiring into the facts that lead to the disaffiliation, including whether JRC and [defendant] properly terminated their religious affiliation with plaintiff. . . . Any decision by the court would necessarily result in the Court second guessing, and even potentially contradicting, the ecclesiastical decisions made by the highest authority of the Jodo Shu sect. (Fn. omitted.) We disagree. A partnership may be dissolved when it is not reasonably practicable to carry on the partnership business. (Corp. Code, 16801, subd. (5)(C); Navarro v. Perron (2004) 122 Cal.App.4th 797, 801-802; Olivet v. Frischling (1980) 104 Cal.App.3d 831, 843, disapproved on another point in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510.) If there was a partnership agreement concerning the temples acquisition, construction, and operation as alleged in the third amended complaint, plaintiff may be entitled to an order dissolving that partnership. The September 6, 2003 disaffiliation decision does not address the partnership. Plaintiff is no longer affiliated with defendant and cannot use the temple. A triable issue remains whether the trial court could resolve plaintiffs request for an order dissolving the alleged partnership without improperly considering the propriety of the disaffiliation decision. If, at trial, it becomes apparent that the partnership dissolution issue cannot be determined without consideration of the disaffiliation decision, then the trial court may enter judgment in defendants favor. All we are saying is that right now there is triable controversy as to plaintiffs partnership dissolution claim which can be subject to trial without abridging the Free Exercise Clause.

In its conversion cause of action, plaintiff alleges: it is the owner of specified property it placed in the temple and defendants have refused to return the items. Defendants argue: [I]n order to adjudicate [plaintiffs] conversion cause of action, the trial court would have to determine whether, following its disaffiliation from the Jodo Shu religion, [plaintiff] has any right to claim property or funds donated by Jodo Shu supporters and friends, and whether [defendants] alleged refusal to permit [plaintiff] to take those items from the Temple was wrongful. We have held: A cause of action for conversion requires allegations of plaintiff's ownership or right to possession of property; defendants wrongful act toward or disposition of the property, interfering with plaintiff's possession; and damage to plaintiff. [Citation.] . . . [Citations.] (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weit & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395; accord, AmerUS Life Ins. Co. v. Bank of America (2006) 143 Cal.App.4th 631, 642, fn. 4.) As we explained in PCO, Inc.: The tort of conversion is derived from the common law action of trover. The gravamen of the tort is the defendants hostile act of dominion or control over a specific chattel to which the plaintiff has the right of immediate possession. (See generally, Rest.2d Torts, 222A, com. a, p. 431; 1 Dobbs, The Law of Torts (2001), 59, pp. 121-122.) (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, supra, 150 Cal.App.4th at p. 395.) Defendant presented no evidence the disaffiliation decision or the resolution of any religious dispute affected control of the property at issue in plaintiffs conversion cause of action. (Compare e.g., Serbian Eastern Orthodox Diocese, supra, 426 U.S. at p. 709.) Defendant presented no evidence of any Jodo Shu governing instrumenta resolution, bylaw, or other provisionor any religious tribunal decision, bearing on the issues raised in plaintiffs conversion cause of action. Defendants have not shown that resolution of plaintiffs conversion claim would cause a civil court to become involved in a religious dispute. A triable issue as to that point remains.

C. The Merits Of Plaintiffs Causes of Action

1. Overview

We turn to the summary judgment or adjudication request with respect to the merits of plaintiffs partnership dissolution and conversion causes of action. The trial court did not reach the merits of these claims. We conclude there are triable issues as to merits of plaintiffs partnership and conversion claims.

2. Conversion

Plaintiffs second cause of action, for conversion, alleges: plaintiff is the owner of the specified personal propertycomputers, statuettes, a Buddhist altar, and furnishingswhich it placed in the temple; plaintiff at no time relinquished ownership of the specified property; after plaintiff was forced to vacate the temple, and requested the return of the specified property, defendants failed and refused to return the items; and plaintiff has been damaged in an amount equal to the value of the converted property. Watson does not stand for that proposition.

Watson is a case of considerable complexity. The Watson decision grew out of a schism in the Presbyterian Church over the question of slavery. The Presbyterian Church was a hierarchical religious organization; it was governed by an ascending series of judicatorieschurch Sessions, Presbyteries, Synods, and a General Assembly. (Watson v. Jones, supra, 80 U.S. at p. 681.) Legal title to church property was vested in local church trustees, elected by the congregation, with equitable power to manage the property in the Session. (Id. at p. 681.) A Session consisted of the pastor and elders of a particular congregation. The trustees were subject to the Sessions and to removal by the congregation. (Ibid.) The highest church judicatory, the General Assembly of the Presbyterian Church in the United States (General Assembly), adopted and required its churches to adhere to an anti-slavery position consistent with President Lincolns emancipation proclamation. A new pro-slavery group emerged, the Presbyterian Church of the Confederate States. (Watson v. Jones, supra, 80 U.S. at pp. 690-692.) The Presbyterian Church of the Confederate States denounced the General Assemblys action. (Id. at p. 691.) A local congregation, the Third or Walnut Street Presbyterian Church in Louisville, Kentucky, became divided along the same lines. Two distinct groups of church members, one pro-slavery and one anti-slavery, each claimed the exclusive right to possession of the church real property. (Id. at p. 692.) The pro-slavery faction sought and obtained admission into the Presbyterian Church of the Confederate States. (Id. at p. 692.) The General Assembly decreed that the pro-slavery groups were not true and lawful Presbyterian institutions under its authority. The General Assembly declared the anti-slavery parties were the true and lawful church. (Ibid.) The anti-slavery faction of the Third or Walnut Street Presbyterian Church brought a lawsuit, Jones v. Watson, in the Circuit Court of the United States for the District of Kentucky. (Id. at p. 694.) They sought an injunction to prevent the opposing group from taking possession of the church property. (Id. at pp. 694-696.) The Circuit Court concluded the General Assembly had recognized the plaintiffs as the members of the Third or Walnut Street Presbyterian Church who, as such, held a beneficial interest in the church building and property, and the court was bound by that decision. (Id. at pp. 697-698.) The defendants appealed. (Id. at p. 699.) The United States Supreme Court affirmed the Circuit Court decision. (Id. at p. 735.) The United States Supreme Court held, [W]henever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them. (Id. at p. 727.) The United States Supreme Court further found the defendants had separated themselves from the church organization overseen by the General Assembly, aligned themselves with a totally different, if not hostile, organization, and as a result had no right to the church property or its use. (Id. at p. 734.) The United States Supreme Court held: [T]he appellants . . . have separated themselves wholly from the church organization to which they belonged when this controversy commenced. They now deny its authority, denounce its action, and refuse to abide by its judgments. They have first erected themselves into a new organization, and have since joined themselves to another totally different, if not hostile, to the one to which they belonged when the difficulty first began. Under any of the decisions which we have examined, the appellants, in their present position, have no right to the property, or to the use of it, which is the subject of this suit. (Ibid.)

This case is unlike Watson. There is no evidence any Jodo Shu rule or regulation determines property ownership and its disposition under the circumstances of this case. (See Corp. Code, 9142, subd. (c).) There is no evidence any authority within the Jodo Shu hierarchy has considered and ruled on the ownership of the property in question. Therefore, defendants mere reliance on Watson did not meet their summary judgment or adjudication burden with respect to the merits of plaintiffs second cause of action for conversion.

Defendants rely on language in Watson concerning a potential trust. Defendants argue that when a small group splinters off of a larger religious group, the greater faction retains control of church property. Defendants cite to the following language in Watson: In such cases where there is a schism which leads to a separation into distinct and conflicting bodies, the rights of such bodies to the use of the property must be determined by the ordinary principles which govern voluntary associations. If the principle of government in such cases is that the majority rules, then the numerical majority of members must control the right to the use of the property. If there be within the congregation officers in whom are vested the powers of such control, then those who adhere to the acknowledged organism by which the body is governed are entitled to the use of the property. The minority in choosing to separate themselves into a distinct body, and refusing to recognize the authority of the governing body, can claim no rights in the property from the fact that they had once been members of the church or congregation. This ruling admits of no inquiry into the existing religious opinions of those who comprise the legal or regular organization; for, if such was permitted, a very small minority, without any officers of the church among them, might be found to be the only faithful supporters of the religious dogmas of the founders of the church. There being no such trust imposed upon the property when purchased or given, the court will not imply one for the purpose of expelling from its use those who by regular succession and order constitute the church, because they may have changed in some respect their views of religious truth. (Watson v. Jones, supra, 80 U.S. at p. 725.) This language is irrelevant to plaintiffs conversion claim. First, the United States Supreme Court was discussing a hypothetical schism in a strictly congregational or independent not hierarchical church, and property held for the use of the congregation without any other specific trust attached. (Id. at pp. 724-725.) Second, as noted, defendants have never made a determination as to the rights to the property at issue. Moreover, Corporations Code section 9142, subdivision (c) expressly provides that the assets of religious corporations may not be subject to any trust except under specified circumstances which are not present here.^[1] There is no evidence in this case of any of the statutory requirements for creation of an express or implied trust.

3. Partnership Dissolution

Plaintiffs third cause of action alleges: an oral partnership agreement existed with defendants for the acquisition, construction, and operation of the temple building; upon completion of the temple, the parties would share in the profits and losses associated with its use; plaintiff would be entitled to one-third of the profits or losses; defendant would be entitled to the other two-thirds of the profits or losses; the parties had performed consistent with the terms of the partnership agreement; and defendant breached the agreement when plaintiff was evicted from the temple. Plaintiff sought an order that the partnership be dissolved. In their summary judgment or adjudication motion, defendants argued the third cause of action had no merit because: there was no mutual consent to a partnership; the terms of the alleged partnership agreement were uncertain and unenforceable; the alleged oral partnership agreement violates the Statute of Frauds; and the parties could not have formed a partnership because both plaintiff and defendant are nonprofit organizations.

First, defendants argue there is no triable controversy concerning the existence of a partnership agreement: [n]one of the Trustees were aware of any partnership agreement; [Bishop] Kawai testified he understood there as a partnership involving [defendant], [plaintiff] and Bukkyo University, not [defendant] and [plaintiff] only; all alleged discussions concerning any partnership occurred only among directors of [defendant] and no representative from [plaintiff] was present; and the terms of the alleged partnership agreement were too uncertain to be enforceable. Pursuant to Corporations Code section 16202, subdivision (a), [T]he association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership. The parties intent as revealed by their acts and surrounding circumstances is often the essential factor in determining the existence of a partnership. (Holmes v. Lerner (1999) 74 Cal.App.4th 422, 454; Cochran v. Board of Supervisors (1978) 85 Cal.App.3d 75, 81; 48 Cal.Jur.3d, Partnership, 30.) No doubt, defendants presented evidence none of the individuals associated with plaintiff and defendant were aware of any partnership between those two entities. However, there was also evidence: prior to construction of the temple building, plaintiff, defendant, and Bukkyo University had formed a project managing committee to oversee the construction and to jointly carry out the fund raising activities of the Jodoshu North America Buddhist Missions; plaintiff, defendant, and Bukkyo University had subsequently entered into an arrangement concerning the use and maintenance of the temple building; each contributed to the costs of maintenance; the buildings facilities were sometimes used by third parties; and the third parties paid for the use in the form of a donation. This was sufficient evidence to raise a triable issue as to the existence of a partnership.

Second, there a triable controversy concerning the Statute of Frauds. Civil Code section 1624 states in part: (a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent: [] (1) An agreement that by its terms is not to be performed within a year from the making thereof. However, Corporations Code section 16101, subdivision (10) provides that a partnership agreement may be oral: Partnership agreement means the agreement, whether written, oral, or implied, among the partners concerning the partnership, including amendments to the partnership agreement. Moreover, it has long been held that if a partnership agreement may be oral (Weiner v. Fleischman (1991) 54 Cal.3d 476, 482; Nelson v. Abraham (1947) 29 Cal.2d 745, 749; see Holmes v. Lerner, supra, 74 Cal.App.4th at p. 445), it need not be in writing under the statute of frauds. (Arnold v. Loomis (1915) 170 Cal. 95, 97; Bates v. Babcock (1892) 95 Cal. 479, 486; Coward v. Clanton (1889) 79 Cal. 23, 26; Simpson v. Winkelman (1964) 225 Cal.App.2d 746, 750; James v. Herbert (1957) 149 Cal.App.2d 741, 748-749; see Donohoe v. Rogers (1914) 168 Cal. 700, 704; Kaljian v. Menezes (1995) 36 Cal.App.4th 573, 583; Doudell v. Shoo (1912) 20 Cal.App. 424, 440-441 [doubtful whether statute of frauds applies to oral partnership agreements]; 35 Cal.Jur.3d, Statute of Frauds, 18 [same].)

Third, defendants argue there can never be a partnership between nonprofit organizations. However, pursuant to Corporations Code section 9140, a California nonprofit religious corporation has the power to participate in a partnership. Corporations Code section 9140 states in part: Subject to any limitations contained in the articles or bylaws and to compliance with other provisions of this division and any other applicable laws, a [nonprofit religious] corporation, in carrying out its activities, shall have all of the powers of a natural person, including, without limitation, the power to: [] . . . [] (j) Participate with others in any partnership, joint venture or other association, transaction or arrangement of any kind whether or not such participation involves sharing or delegation of control with or to others. Plaintiff and defendant are both California nonprofit religious corporations. As such, they have the power to participate in a partnership. (Corp. Code, 9140, subd. (j).)

IV. DISPOSITION

The summary judgment is reversed. Upon remittitur issuance, the wrongful eviction claim is to be summarily adjudicated in favor of defendants, Jodoshu North America Buddhist Missions and Masahiko Asatani. The summary adjudication motion is to be denied in all other respects. Plaintiff, Jodo Shu Betsuin, is to recover its costs on appeal, jointly and severally, from defendants.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

I concur:

ARMSTRONG, J.

MOSK, J., Concurring and Dissenting

I dissent as to the first cause of action.

Plaintiff alleges that it has a permanent lease and that it was wrongfully evicted. Whether an eviction is wrongful depends on the lease. If the lease is such that the plaintiff could not be evicted for doctrinal disputes or issues, then a court could determine that there was a wrongful eviction without addressing internal religious matters on the disaffiliation. Thus far, defendants defense is not justification for the eviction, but rather that there was no valid lease.

Plaintiff has pleaded and submitted enough evidence to raise a triable issue of fact as to whether there was a lease in perpetuity, including part performance to avoid the statute of frauds.^[2] There is no question as to the eviction. If there was a valid lease, it would seem that defendants would have to establish that the eviction was justified under the lease. (But cf. Lindenberg v. MacDonald (1950) 34 Cal.2d 678, 683 [suggesting that based on the facts of that case plaintiff had to establish bad faith to recover damages for a constructive unlawful conviction^[3]].) But regardless of the burden of proof, only if the lease expressly or impliedly contained some provision that would permit termination or eviction because of a religious or ecclesiastical matter would there have to be an evaluation of religious doctrine. If there were not such a provision, express or implied, the eviction before the end of the term, absent other justification, was necessarily wrongful. So at this stage, I cannot say that the court lacks jurisdiction over the cause of action for wrongful eviction. If the issue as to the reason for eviction arises and involves doctrinal issues, the trial court would then be able to determine if it lacked jurisdiction. It may well be that the claim will involve dealing with the reasons and justification for the eviction and that those reasons concern doctrinal matters. If so, the court would then be powerless to consider the matter. Thus, based on the record before us, I believe at this stage there is a triable issue of fact as to the first cause of action.

I concur as to the other two causes of action at issue. Plaintiff alleges a partnership agreement was wrongfully breached and seeks a dissolution decree. If there was a partnership, merely declaring a dissolution would not seem to invoke any religious considerations. Plaintiff does not seek