Opinion
A148860
10-04-2017
ALICE SMITH et al., Plaintiffs and Appellants, v. JONATHAN L. GREEN et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CV412457/CV412445)
In this dispute over the leadership of a church, plaintiffs Alice Smith and Ellissteen Owens appeal from the trial court's judgment following an order granting a motion for summary judgment filed by defendants Jonathan L. Green, June Jackson, Pamela Wright, Dorothy Lark, Lori Green, and Larry Robinson. They also appeal from orders vacating discovery sanctions against defendants and releasing interpleaded funds to the church. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case revolves around the leadership of the Praises of Zion Baptist Church (Church) located in the City of Clearlake.
In March 2009, the Church hired Jonathan L. Green as the new senior pastor. Subsequently, plaintiffs, who served as Church trustees, became dissatisfied with his performance. They attempted to terminate Green pursuant to the Church's bylaws. Instead, Green held an election and replaced plaintiffs with new trustees.
On September 10, 2012, plaintiffs sent letters to Westamerica Bank and others, requesting that the Church's bank accounts be frozen due to the dispute with Green.
On October 24, 2012, Westamerica Bank filed an interpleader action and deposited with the court the funds contained in the Church's account in the amount of $41,990.72. Plaintiffs thereafter failed to formally appear in the interpleader action.
On October 29, 2012, plaintiffs filed the underlying lawsuit.
On December 21, 2012, defendants filed an answer to Westamerica's action, claiming an interest in the interpleaded funds on behalf of the Church.
On January 27, 2013, plaintiffs were notified that their membership in the Church had been suspended.
On May 23, 2013, plaintiffs filed a first amended complaint (FAC) containing causes of action for (1) declaratory and injunctive relief, (2) Corporations Code section 9418 summary proceeding, (3) defamation, and (4) intentional infliction of emotional distress. Plaintiffs alleged that after they hired Green, he improperly ousted them from their positions as trustees and illegally took control of Church funds, converting those funds for his own personal gain. They also alleged that he falsely told members of the Church that plaintiffs had misappropriated Church funds.
Corporations Code section 9418, subdivision (a) provides: "Upon the filing of an action therefor by any director or member, or by any person who had the right to vote in the election at issue after such director, member, or person has exhausted any remedies provided in the articles or bylaws, the superior court of the proper county shall determine the validity of any election or appointment of any director of any corporation."
On February 18, 2014, the trial court granted defendants' special motion to strike filed pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion) and struck the causes of action for defamation and intentional infliction of emotional distress.
On March 25, 2014, defendants filed a cross-complaint against plaintiffs.
On May 29, 2014, the trial court awarded defendants $12,560 in attorney fees in connection with the anti-SLAPP motion.
On August 21, 2014, defendants filed a first amended cross-complaint, seeking the return of monies and property from plaintiffs totaling in excess of $7,500.
On August 29, 2014, the trial court issued an order requiring Green and his attorney to pay $8,685 in attorney fees to plaintiffs as a sanction for having committed certain discovery violations.
On September 8, 2014, Green filed a notice of appeal from the discovery sanction order.
On February 4, 2016, the parties stipulated to continue the trial to allow plaintiffs to retain new counsel, as their current counsel was experiencing serious health issues. Trial had been set for March 9, 2016. The trial court reset trial for June 29, 2016, scheduling a mandatory settlement conference for June 7, 2016.
On February 8, 2016, plaintiffs filed substitution of attorney forms, substituting themselves as counsel in pro. per.
On March 8, 2016, defendants filed a motion for summary judgment, arguing that the FAC did not present any triable issues of material fact. The proof of service for the motion indicates that the moving papers were served on plaintiffs by Express Overnight Mail. The proof of service is unsigned. No opposition to the motion was filed.
At the hearing on the summary judgment motion, held on May 23, 2016, Smith appeared and requested a continuance to allow plaintiffs time to retain another attorney. While she initially stated that she had received the envelope containing defendants' moving papers about two weeks prior to the hearing, the trial judge examined the envelope, confirming that it had been served in March 2016. The trial court denied the request for a continuance and granted the motion for summary judgment. The order entering summary judgment was filed that same day.
On June 3, 2016, defendants filed a petition to release the funds that had been deposited in interpleader.
The mandatory settlement conference was held on June 7, 2016. Plaintiffs did not appear. Green's attorney proposed a settled compromise that the trial court found to be reasonable. Thereafter, on June 9, 2016, the court filed its order setting aside the $8,685 in sanctions award against Green and his attorney. The court also set aside the $12,560 anti-SLAPP attorney fee award against plaintiffs, dismissed the cross-complaint, and ordered that the balance of interpleaded funds ($36,623) be released to the Church.
On July 20, 2016, Smith filed a notice of appeal from the May 23, 2016 order granting summary judgment and the June 9, 2016 order setting aside the sanction award.
On March 24, 2017, defendants filed a signed amended proof of service of the motion for summary judgment.
DISCUSSION
I. Denial of Continuance
On appeal, plaintiffs do not address the merits of the trial court's ruling on defendants' motion for summary judgment. Instead, they challenge the denial of Smith's request for a continuance of the hearing. We review the denial of a continuance for abuse of discretion. (Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1126.) Trial continuances are disfavored, and the requesting party is required to affirmatively show good cause to obtain one. (Id. at p. 1127; Cal. Rules of Court, rule 3.1332(c).)
Here the trial court denied the request for a continuance, stating, "I think you've been less than diligent in finding a lawyer and it's time that this case be concluded." The court's decision did not amount to an abuse of discretion. It appears plaintiffs knew in January 2016 that they would need to retain new counsel, yet they had not taken any meaningful steps to do so before the May 23, 2016 hearing.
Plaintiffs also claim that defendants did not serve them with the motion for summary judgment in a timely manner. Their claim is not well taken.
As noted above, Smith appeared at the hearing, claiming that she had received defendants' moving papers only two weeks earlier. From the reporter's transcript, however, it appears the trial court inspected the Express Mail envelope that she had brought with her, noting it was dated March 7, 2016. Additionally, the amended proof of service includes copies of tracking logs showing that plaintiffs signed acknowledgments of receipt of defendants' documents in March 2016. This evidence directly contradicts Smith's statements at the May 23, 2016 hearing that she had received the documents only two weeks prior to the hearing.
Further, "[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective." (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 [holding plaintiff waived claim he was not given 45 days' notice of sua sponte motion for discretionary dismissal], disapproved on a different point in Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 560.) Although plaintiffs filed no opposition to the motion for summary judgment, Smith did attempt to argue the merits of the case by stating that the Church was in violation of its bylaws. In sum, we find no error. II. Mandatory Settlement Conference
Plaintiffs assert the trial court erred in formulating a settlement at the mandatory settlement conference in their absence. With respect to the determinations relating to the parties' attorney fees, it does not appear plaintiffs have standing to challenge the court's order as they were not aggrieved by the rulings.
Plaintiffs claim they were not given notice of the mandatory settlement conference. Not so. The record shows the conference date was set on February 4, 2016, as evidenced by the trial court's order continuing the trial pursuant to the parties' stipulation.
"Any party aggrieved may appeal . . . ." (Code Civ. Proc., § 902.) "One is considered 'aggrieved' whose rights or interests are injuriously affected by the judgment. [Citations.] [An appellant's] interest ' "must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment." ' " (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) "And as to the question who is the party aggrieved, the test . . . seems to be the most clear and simple that could be conceived. Would the party have had the thing, if the erroneous judgment had not been given? If the answer be yea, then the person is the 'party aggrieved.' But his right to the thing must be the immediate, and not the remote consequence of the judgment, had it been differently given." (Adams v. Woods (1857) 8 Cal. 306, 315.)
As defendants note, the result of the settlement order actually benefitted plaintiffs in that they formerly owed defendants $3,865 in attorney fees after subtracting the discovery sanctions award entered against Green and his counsel from the attorney fee award that defendants received when they prevailed in their anti-SLAPP motion. As a result of the trial court's rulings, plaintiffs' debt was erased and defendants also agreed to dismiss their cross-complaint and the appeal of the sanction award. Thus, plaintiffs were not aggrieved by the court's settlement order.
As to the release of the interpleaded funds, plaintiffs never formally appeared in the interpleader action or made a personal claim for the funds, suggesting they were not entitled to notice. In any event, in light of the fact that we are affirming the judgment in favor of defendants, the interpleader matter is moot.
DISPOSITION
The judgment and orders are affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.