The Oriental Misson Church v. Park CA2/4 ( 2015 )

Filed 7/17/15 The Oriental Misson Church v. Park 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
THE ORIENTAL MISSION CHURCH B256370
et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BC491914)
v.
HYUNG JIM BOB PARK et al.,
Defendants and Respondents.
APPEAL from a judgment and order of the Superior Court of Los Angeles
County, Rolf M. Treu, Judge. Affirmed.
Law Offices of Howard B. Kim and Howard B. Kim for Plaintiffs and Appellants.
Park & Sylva, Daniel E. Park, and Christopher C. Cianci for Defendants and
Respondents.
The leadership of the Oriental Mission Church (OMC), a large Korean-American
church, has been embroiled in internal strife for years, resulting in numerous lawsuits.
Plaintiffs and appellants OMC and four church elders who were members of OMC’s
governing body—the “Session”—brought the current action against two of OMC’s
pastors and three church elders who also claimed to be members of the Session.
Plaintiffs alleged that the Session properly terminated defendant pastors in accordance
with the rules and procedures of OMC’s constitution but that the pastors wrongfully
refused to acknowledge their terminations and continued to act as pastors, actions which
were detrimental to OMC. Plaintiffs further alleged that defendant elders were not
Session members but acted as such, also to OMC’s detriment. After a bifurcated bench
trial, the court found that defendant pastors were not properly terminated and that
defendant elders were valid members of the Session at the time plaintiffs filed this action
on September 12, 2012. The court subsequently denied plaintiffs’ motion for new trial.
Plaintiffs OMC and three of the four elders appeal from the judgment and order
denying their motion for new trial. Plaintiffs contend the trial court erred in finding that
the pastors were not properly terminated and that the defendant elders were valid
members of the Session. They also contend the court abused its discretion by refusing to
adjudicate the issue of plaintiff elders’ Session membership. Plaintiffs further claim the
court abused its discretion when it granted their motion to continue the trial but trailed the
trial for only two days. Finally, plaintiffs contend the court abused its discretion by
denying their motion for a new trial. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
I. Factual Background
A. The Session and the Parties
OMC is a California non-profit religious corporation, incorporated in 1973. It is a
congregational church governed by its articles of incorporation or “constitution.”
According to OMC’s constitution, the Session is the governing body of OMC and
has authority to administrate and discipline. Its duties include monitoring finances,
2
managing assets, overseeing audits, managing personnel, and governing and
administering church affairs. Pursuant to OMC’s constitution, the members of the
Session are the senior pastor, senior associate pastor, and active elders. Active elders are
OMC members with specified qualifications who are selected by the Session, approved
by congregational vote, and complete certain training.1 Active elders serve a maximum
term of three years on the Session and must retire at the age of 65.2
The Session essentially functions as OMC’s board of directors. Nonetheless, a
separate body called the “board of directors” exists within OMC’s corporate structure.3
However, it lacks the authority of the Session to govern church affairs.
In addition to OMC, plaintiffs are four active elders purporting to be members of
the Session: Hong In Chai, Hubert Hyo Lee, Chang Woong Um, and Seoung Rae Lee
(plaintiff elders). Defendants consist of OMC’s senior pastor, Hyung Jim Bob Park
(pastor Park), its associate pastor, Kyuong Rok Kim (pastor Kim), and three active elders:
Young Song Lee,4 Young Sik Jung,5 and Kwang Suk An (defendant elders). Pastor Park
1
OMC’s constitution provides for other categories of elders, but only active elders
serve on the session.
2
While the constitution recommends one elder “per every thirty believers”, there is
no other limit to the number of active elders, and thus no limit to the number of Session
members.
3
All OMC elders serve as members of the board of directors. Thus, active elders
are members of both the Session and the board of directors, while elders of other types
are members only of the board of directors. Perhaps due to the overlap of membership
and/or to differences in translations from Korean to English, the documents in the record
occasionally refer to the Session as the board of directors. This ambiguity does not create
any substantive issue in this appeal.
4
Because Young Song Lee is a defendant in this action and was a plaintiff in an
earlier action, described post, we refer to him when appropriate by his full name to avoid
confusion with Hubert Hyo Lee and Seong Rae Lee, plaintiff elders in this case.
3
began serving as OMC’s senior pastor in July 2011. Pastor Kim started serving as
associate pastor in November 2011. Defendant elders commenced their terms on the
Session between 2004 and 2007, but their Session memberships were disrupted as
described below. They claim to have resumed their status as Session members beginning
in or around June 2012.
B. Prior Relevant Proceedings
Two earlier lawsuits involving some of the same parties impact this case.
1. The Kang Action
In 2006, OMC’s then-senior pastor, Choon Min Kang, dissolved the Session and
replaced OMC’s constitution with a new set of bylaws, effectively transferring control
over church governance from the Session to himself. Defendant elders Young Song Lee,
Jung, and An were members of the Session at the time Kang dissolved it. OMC and
several Session members challenged Kang’s actions in Oriental Mission Church v. Kang,
Los Angeles Superior Court Case No. BC366406 (the Kang Action). On July 17, 2009,
Judge Amy Hogue issued an amended statement of decision and judgment following
bench trial in the Kang Action, of which the trial court took judicial notice. Judge Hogue
found that Kang’s attempt to dissolve the Session was invalid and that the new church
bylaws were void.
Judge Hogue also restored members of the Session who had been removed,
including defendant elders Lee, Jung, and An, and granted them time credits in the
calculation of their remaining term limits and mandatory retirement age. Judge Hogue
specifically held, “Plaintiffs and other Session members were removed from office on
November 5, 2006 in violation of the Constitution and are hereby restored their positions
as Session members. To reinstate the status quo as of November 4, 2006, the lapse of
time between that date and the date of this order shall not be calculated against their
terms or against any elder’s mandatory retirement age of 65 . . . .”
5
Although defendant Jung filed an answer in pro. per, it is undisputed that he left
OMC and subsequently abandoned his defense of this action.
4
2. The Excommunication Action
In 2010, the Session purported to terminate the membership of 18 members of
OMC and suspend the offices of those terminated members who held leadership roles,
including the role of elder. Defendant elders Jung and An, who had resumed Session
membership following the Kang Action, were again removed from the Session. The
terminated members continued to attend church meetings and functions, allegedly
causing strife and dissension at OMC. The Session and its then members filed an action
in Los Angeles Superior Court, The Session of the Oriental Mission Church v. Rhee, Case
No. BC435913 (the Excommunication Action), against the allegedly terminated
members, including defendant elders Jung and An.6
Judge Hogue conducted a bench trial and issued a judgment on May 29, 2012.
The trial court took judicial notice of this judgment. Judge Hogue found that the 18
members—including defendants Jung and An—were terminated and their offices were
suspended contrary to OMC’s constitution and accordingly vacated the terminations and
suspensions.
Judge Hogue construed article 98 of OMC’s constitution, which states that
“[p]unishment shall be decided for a person whose malfeasance has been determined
before a tribunal,” and that excommunication for general members of OMC is among the
“punishments decided through tribunals.” Judge Hogue provided guidance on the use of
the term “tribunal”: “[T]he definitions, both in my old-fashioned dictionary and on the
Internet, define tribunal as the seat of a judge, the court or forum of justice. [¶] So I
think that’s important, because it suggests that some sort of hearing is contemplated by
the word tribunal. . . . [¶] Okay, so that word tribunal I think is important, because I
think this constitution envisioned something like a trial if someone is to be disciplined.”
Judge Hogue found that because the constitution contemplated something like a judicial
6
One of the plaintiffs in the Excommunication Action was Young Song Lee, a
defendant elder in the present case.
5
proceeding, it necessarily required notice of the proceeding and an opportunity to be
heard in writing or otherwise.
On the last day of the trial, the parties asked Judge Hogue to clarify whether she
was ordering defendant elders Jung and An reinstated to the Session. She suggested that
their “status [as] Session members [was] [likely] mooted by the congregation’s later
selection of Session members.” However, Judge Hogue declined to make any ruling on
defendant elders Jung’s and An’s Session membership because she did not receive
evidence on the issue.
C. The Attempts to Terminate Pastors Park and Kim and the Dispute
Over Session Membership
As of May 1, 2012, the Session consisted of seven members: pastors Park and
Kim; the four plaintiff elders; and active elder Hyung Soo Choi (elder Choi), who did not
take part in this action. On May 2, 2012, during a regular monthly meeting of the Session
attended by all seven members, pastor Kim was asked to leave the room. Upon his
departure, the Session purportedly terminated pastor Kim, effective that day, over the
objection of pastor Park. On May 3, 2012, plaintiff elder Chai sent a letter to pastor Kim
informing him of his termination. The letter did not reference any misconduct by pastor
Kim, and it was the first notice he received of any proceeding to remove him from office.
Pastor Kim refused to recognize his purported termination and continued to act as senior
associate pastor.
On June 5, 2012 pastor Park received a letter from a disciplinary committee setting
forth a list of questions regarding actions he allegedly took without the approval of the
Session in violation of OMC’s constitution.7 The letter requested a response by 5:00 p.m.
on June 8, 2012.
7
The record is silent on the duties and purview of the disciplinary committee as of
the date of this letter. We presume it is the same body as the disciplinary action
committee that drafted new bylaws and rules regarding disciplinary action that took effect
on June 13, 2012 (see post).
6
On June 6, 2012, the Session held its first monthly meeting since Judge Hogue’s
judgment in the Excommunication Action. Plaintiff elders, elder Choi, pastors Park and
Kim, and defendant elders Lee, Jung, and An, were present for the meeting. According
to the meeting minutes, pastor Park convened the meeting with pastor Kim and defendant
elders. Pastors Park and Kim and defendant elders then left the meeting. Plaintiff elders
and elder Choi remained and conducted a Session meeting. Thereafter, plaintiff elders
ceased attending Session meetings called by pastor Park.
Pastor Park received a letter from plaintiff elder Chai and the chairman of OMC’s
board of directors, dated June 7, 2012. The letter stated that OMC’s board of directors
held an emergency meeting on June 7, 2012 and decided by unanimous vote to terminate
pastor Park, effective the following day.8 Pastor Park never received notice of the June 7,
2012 emergency meeting. He refused to abide by his purported termination and
continued to conduct the affairs of the church.
On June 13, 2012, new bylaws and rules regarding disciplinary action took effect
(disciplinary action bylaws). A disciplinary action committee consisting of three of the
plaintiff elders, elder Choi, and two non-Session members drafted and passed the
disciplinary action bylaws several weeks earlier on May 20, 2012. The bylaws
authorized the disciplinary action committee to convene trials and impose punishment on
OMC members, staff, and officers under specified procedures.
On July 1, 2012, pastor Park held a special congregational meeting. At the
meeting, the congregation purportedly voted to reappoint and retain pastor Park as senior
pastor of OMC; suspend the Session membership of plaintiff elders until final decision of
the Session; and reelect pastors Park and Kim, the three defendant elders, and elder Choi
to the Session. Pastor Park continued to hold Session meetings with defendant elders.
On August 22, 2012, purportedly suspended plaintiff elders and elder Choi gave
notice to pastors Park and Kim of a non-regular meeting of the Session to be held on
8
Pastor Park had not responded to the questions in the June 5, 2012 letter when he
received the June 7, 2012 termination letter.
7
August 30, 2012. The agenda for the meeting was the pastors’ termination for alleged
wrongful conduct and malfeasance. Pastors Park and Kim did not attend. The members
of the Session who were present voted to terminate pastor Park and reconfirm pastor
Kim’s termination. On September 1, 2012, plaintiff elders Chai and Lee sent letters to
pastors Park and Kim informing them of their termination for their wrongful conduct and
malfeasance as enumerated in the August 22, 2012 notice. Pastors Park and Kim again
refused to recognize their purported terminations and continued to conduct themselves as
pastors of OMC and members of the Session.
II. Procedural History
A. Pre-Trial Proceedings
1. Complaint and First Amended Complaint
On September 12, 2012, plaintiffs filed a complaint against pastors Park and Kim,
alleging causes of action for permanent injunction, conversion, and interference with
contracts. In light of the alleged termination of pastors Park and Kim, plaintiffs sought
an injunction preventing them from acting as pastors of OMC and interfering with its
operations. Plaintiffs sought damages for pastors Park’s and Kim’s alleged conversion of
church donations and rents paid on real property owned by OMC. Plaintiffs also sought
damages for pastor Park’s alleged interference with OMC’s contract with its property
management company.
On October 15, 2012, plaintiffs filed their first amended complaint adding
defendant elders and replacing the cause of action for permanent injunction with one for
determination of the validity of elections and appointments of directors and permanent
injunction pursuant to Corporations Code section 9418.9 In that cause of action, plaintiffs
alleged that after their purported termination, pastors Park and Kim improperly elected
9
Corporations Code section 9418, subdivision (a) states, “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.”
8
defendant elders to the Session and defendant elders conducted unauthorized activities to
the detriment of the church. Plaintiffs sought an injunction against all defendants
preventing them from interfering with church operations.
2. Plaintiffs’ Motion for Order to Determine Validity of Elections,
Appointments and Reinstatements of Directors
On the same day they filed their first amended complaint, plaintiffs also filed a
motion to determine validity of elections, appointments, and reinstatements of directors
and permanent injunction pursuant to Corporations Code section 9418 (Corporations
Code motion). Plaintiffs sought an order invalidating defendants’ purported election to
the Session on July 1, 2012 and a preliminary injunction preventing defendants from
interfering with the operations of OMC.
On March 29, 2013, the court held a hearing on plaintiffs’ Corporations Code
motion. The court concluded that the election of defendant elders at the July 1, 2012
special congregational meeting was invalid because that meeting was not properly called
pursuant to OMC’s constitution. The court also found that under the constitution’s
mandatory retirement age for elders and the time credits awarded by Judge Hogue in the
Kang Action, defendant elders Young Song Lee and Jung were ineligible for election to
the Session on July 1, 2012. However, the court found that plaintiffs failed to establish
that defendant elder An was ineligible for election under the age requirement. The court
declined to issue any opinion on whether, if it had been properly called, the special
congregational meeting had the power to suspend plaintiff elders from the Session or
elect members to the Session.
The court declined to grant a preliminary injunction because it lacked evidence to
make any determination as to the composition of the Session either prior to July 1, 2012
or as of the date of the hearing. The court further stated that plaintiffs’ Corporations
Code motion did not establish that pastors Park and Kim were properly terminated.
The court also held a case management conference on March 29, 2013. Both sides
waived their right to a jury trial, and the court set a trial date of July 15, 2013.
9
3. Plaintiffs’ Ex Parte Application to File Second Amended
Complaint
On May 15, 2013, plaintiffs filed an ex parte application for leave to file a second
amended complaint to add a fourth cause of action for declaratory relief. Plaintiffs
argued the amendment was necessary because, in its order on plaintiffs’ Corporations
Code motion, the court “refrained from ruling on the validity of reinstatement of the
Pastors, and whether they were validly terminated in the first place, and who in fact were
the Session members who controlled the church.” According to plaintiffs, the court’s
order left the parties in “a quandry of who in fact controlled [OMC].” The court granted
the ex parte application and continued the trial date to December 9, 2013.
Plaintiffs filed their second amended complaint on May 15, 2013. The newly
added cause of action for declaratory relief alleged the existence of controversies over the
purported terminations of pastors Park and Kim and the membership of the Session.
Regarding the controversy over the Session, plaintiffs alleged as follows: “Plaintiffs
contend that the only authorized Session members consist of the five Session members
who remained after defendants Park and Kim were terminated as Pastor and Assistant
Pastor, whereas defendants dispute this contention and contend that the Session consists
of defendants Park, Kim, Lee, Jung, and An.” Plaintiffs accordingly requested “a
declaration as to (1) whether defendants Park and Kim were properly terminated pursuant
to the rules and procedures of the OMC Constitution; and (2) who the authorized Session
members are.”
B. First Phase of Trial
The parties agreed to bifurcate the purely legal issue of the pastors’ terminations
under the terms of OMC’s constitution from other triable issues. The court ordered
briefing and conducted the first phase of the trial on December 10, 2013 based on the
parties’ briefs, undisputed evidence, and argument from counsel.10
10
Despite plaintiffs’ later disapproval of their attorney’s submission of the
termination issue on the briefs and argument (see post), the record does not reflect that
they objected to this procedure before or during the trial.
10
The court’s ruling turned on its construction of articles 78, 80, 98, and 99 of
OMC’s constitution and their application to the action taken to terminate the pastors.
Article 78 governs the authority of the Session. It states that “the Session shall
govern according to the teachings of the Bible on matters involving different views of the
Church constitution or rules for the sanctity and peace of the Church” and that “the
Session shall maintain peace and order within the Church and have the authority to
administrate and discipline.”
Article 80 enumerates the duties of the Session. It charges the Session with the
duty to “handle matters concerning recognition, disciplinary action and punishment of
members and officers of the church.”
Article 98 covers punishment of general members and officers of OMC. It states,
“[p]unishment shall be decided for a person whose malfeasance has been determined
before a tribunal.” “[P]unishments decided through tribunals” and “imposed upon
officers of [OMC]” include “[s]uspension from active duty,” “[d]ismissal from active
duty,” “[s]uspension,” and “[t]ermination.”
Article 99 is entitled “Procedure for Disciplinary Action.” It states that “[a]ll
individuals and matters subject to disciplinary action shall be punished pursuant to the
rules. The rules for disciplinary action shall be determined separately.”
On December 10, 2013, the court held that articles 78 and 80, which grant the
Session the general power to punish and discipline, are further refined by article 98,
which must be followed when terminating officers of OMC, including pastors Park and
Kim. The court further held that a tribunal under article 98 is “similar to a hearing or a
trial before which the person accused or the person whose rights are affected has effective
notice so that he or she may present his or her case at the tribunal.” The court found that
pastors Kim and Park did not receive adequate notice of a specific hearing before a
tribunal prior to their respective terminations on May 2 and June 7, 2012. The court
11
accordingly found that, due to inadequate notice, the terminations of pastors Park and
Kim violated OMC’s constitution.11
The court also addressed pastors Park’s and Kim’s purported terminations on
August 30, 2012. By that time the disciplinary action bylaws, created pursuant to article
99 of OMC’s constitution, were in effect. The bylaws detailed specific procedures for the
disciplinary action committee to follow when disciplining persons. The bylaws state that
the “Disciplinary Action Committee shall notify each person to be called upon by mail 7
days prior to a trial date. Such notice shall be given up to 2 times.” The bylaws also state
that the “Disciplinary Action Committee shall convene a trial with majority attendance.”
The court found that these procedures were not followed at the August 30, 2012
Session meeting, and as a result, pastors Park and Kim were not properly removed from
their positions as pastors of OMC.
C. Termination of Plaintiffs’ Counsel and Request for Trial Continuance
The court set the second phase of trial on the remaining issues for January 13,
2014. On January 7, 2014, plaintiffs and defendant pastors Park and Kim stipulated to a
trial continuance of approximately 60 days so they could participate in a settlement
conference. Pursuant to the stipulation, on January 9, 2014, pastors Park and Kim filed
an ex parte application seeking the 60-day continuance. On that same date, defendant
elders Young Song Lee and An, who were not parties to the stipulation, also filed an ex
parte application seeking a trial continuance of approximately four months because they
had just retained counsel. The court did not sign the stipulation and denied both ex parte
continuance requests.
On the day scheduled for trial, January 13, 2014, plaintiffs filed a declaration
seeking to relieve their counsel of record and requesting a trial continuance of 45 days to
11
The court further found that pastor Kim’s purported termination on May 2, 2012
was improper because the Session, assuming it constituted a tribunal, made no finding of
malfeasance, as required by article 98. It similarly found that pastor Park’s purported
termination on June 7, 2012 was improper because the board of directors was not a
tribunal and there was no finding of malfeasance.
12
secure new representation. The declaration stated that plaintiffs lost trust in their counsel
when his handling of recent legal proceedings conflicted with plaintiffs’ instructions.
Plaintiffs claimed they disagreed with their counsel’s agreement to conduct the first phase
of trial “without a trial process or presentation of any evidence or witness [sic].” They
also faulted counsel for failing to make certain arguments at the first phase of trial. When
plaintiffs met with their counsel on January 8, 2014, he recommended that plaintiffs
“resolve the matter by arbitration” and informed them that he had ceased preparing for
trial because of the stipulated trial continuance. Plaintiffs sent a letter of termination to
their counsel on January 11, 2014 .
The court agreed to relieve plaintiffs’ counsel over defendants’ objection.
According to the court’s minutes, plaintiffs made an oral motion to continue the trial date.
The court granted the motion, but only trailed the trial for two days, noting that plaintiffs’
“eve of trial” termination of counsel prejudiced defendants.
D. Second Phase of Trial
On January 15, 2014, plaintiffs appeared for trial with new counsel. The court
allowed the parties to conduct settlement discussions and continued proceedings to the
next day. On January 16, 2014, the court presided over the second phase of trial to
address defendant elders’ Session membership as of September 12, 2012.12
The parties did not retain a court reporter, and the court did not issue a statement
of decision. We accordingly have no record of the proceedings except for the court’s
minutes. According to the minutes, the parties stipulated that in the Kang and
Excommunication Actions Judge Hogue found that all three defendant elders “were
illegally removed from office, in violation of the [OMC] Constitution.” The minutes
further state, “Court and counsel have calculated the service times [] and credits of Lee,
Jung, and An, and all parties stipulate that said calculations are correct, and are to be
applied pursuant to [the judgments in the Kang and Excommunication Actions], and that
12
The parties agreed that Session membership should be determined as of the date
plaintiffs filed their complaint.
13
Lee, Jung, and An were session members at the time of the filing of this instant action.”
Accordingly, the court found that defendant elders were Session members at the time
plaintiffs filed their original complaint on September 12, 2012.
The court entered judgment on February 20, 2014. The judgment states that,
“[t]he Court did not rule on the issue of Plaintiffs’ Session membership terms as the
Court deemed that it was not a subject of the [second amended complaint].”
E. Plaintiffs’ Motion for New Trial
In March 2014, plaintiffs moved for a new trial on numerous grounds. Plaintiffs
contended that the court’s finding that pastors Park and Kim were improperly terminated
was based on a misinterpretation of OMC’s constitution and disciplinary action bylaws.
Plaintiffs further argued that the court’s finding that defendant elders were members of
the Session as of September 12, 2012 contradicted undisputed facts. Plaintiffs also
complained of the trial court’s exclusion of witnesses and treatment of witness testimony
at the second phase of trial. They claimed they were prejudiced by the court’s exclusion
of plaintiff elder Chai’s testimony because he could not speak English well enough to
testify without an interpreter. They also contended that the court improperly dismissed
pastor Park from the witness stand before he testified, depriving plaintiffs of an
opportunity to cross-examine him. Plaintiffs further argued that the court “misapplied”
plaintiff elder Um’s testimony. Referring to the cause of action for declaratory relief,
plaintiffs argued that the court failed to adjudicate all issues raised in the second amended
complaint. Finally, plaintiffs argued the court’s decision to provide them only two days
to retain new counsel prejudiced them and prevented them from having a fair trial.13
The court denied plaintiffs’ motion for new trial. Plaintiffs appealed.
13
Plaintiffs’ motion provided a different version of the events leading to their
counsel’s termination. According to plaintiffs, counsel used profanity against plaintiff
Um in the courthouse hallway after the first phase of trial. Further, on January 11, 2014,
two days before trial, plaintiffs’ counsel sent a text message to one of the plaintiff elders
stating, “Sub us out of the case.”
14
DISCUSSION
I. The Court Did Not Err in Finding Pastors Park and Kim Were Not Properly
Terminated
Plaintiffs contend that at the first phase of trial the court misinterpreted the
provisions of OMC’s constitution and therefore erred in finding that pastors Park and
Kim were improperly terminated. “When the trial court’s interpretation is based solely
upon the terms of the written instrument, and there is no conflict in the evidence, we
review the ruling de novo. [Citation.] Although we review the construction of the
express terms of the instrument de novo, we review the evidence regarding the
interpretation of the words under the substantial evidence test. [Citation.] We must
uphold any factual determination of the trial court, express or implied, so long as there is
substantial evidence in the record to support it. [Citation.] If the evidence is conflicting,
we must accept that which supports the trial court’s decision and make all reasonable
inferences in support of the judgment. [Citation.]” (Singh v. Singh (2004) 114
Cal. App. 4th 1264, 1293-94 (Singh).) We find that the trial court did not err in
concluding that pastors Park’s and Kim’s terminations were improper under the terms of
OMC’s constitution.
We construe articles of incorporation and corporate bylaws, like OMC’s
constitution, “‘“according to the general rules governing the construction of statutes and
contracts.” [Citation.]’” (Singh, supra, 114 Cal.App.4th at p. 1294.) “The principles
governing construction of written instruments are well settled. ‘The mutual intention of
the contracting parties at the time the contract was formed governs. [Citations.] We
ascertain that intention solely from the written contract, if possible . . . . [Citations.] We
consider the contract as a whole and construe the language in context, rather than
interpret a provision in isolation. [Citation.] We interpret words in a contract in
accordance with their ordinary and popular sense, unless the words are used in a technical
sense or a special meaning is given to them by usage. [Citation.] If contractual language
is clear and explicit and does not involve an absurdity, the plain meaning governs.
15
[Citation.]’ [Citation.]” (Starlight Ridge South Homeowners Ass’n v. Hunter-Bloor
(2009) 177 Cal. App. 4th 440, 447 (Starlight Ridge).)
Here, neither article 78 nor 80 of the OMC constitution grants the Session absolute
authority to terminate pastors without cause upon a simple majority vote. Article 78
vests in the Session the “authority to administrate and discipline.” Article 80 states that
the Session has the duty “[t]o handle matters concerning recognition, disciplinary action
and punishment of members and officers of [OMC],” a group the parties stipulated
includes pastors. These provisions by their plain terms merely pronounce the Session’s
general authority over matters of church administration and the recognition and discipline
of church members and officers. Nothing in these articles grants the session absolute
authority to terminate pastors without cause. Plaintiffs suggest that such a conclusion
must follow from pastors’ status as at-will employees, but provide neither factual nor
legal support for their assertion that pastors are at-will employees of OMC. We need not
consider unsupported assertions on appeal (Cahill v. San Diego Gas & Elec. Co. (2011)
194 Cal. App. 4th 939, 956; Benach v. County of Los Angeles (2007) 149 Cal. App. 4th 836,
852; Gurthey v. State of California (1998) 63 Cal. App. 4th 1108, 1115; see also Cal.
Rules of Court, rule 8.204(a)(1)(C)), and do not do so here.
We accordingly find no error in the trial court’s conclusion that article 78 and
80—which make general references to discipline, disciplinary action, and punishment—
are further refined by article 98 and 99, which more specifically govern disciplinary
action and the “punishment” of termination. (Civ. Code, § 3534 [“Particular expressions
qualify those which are general.”]; Queen of Angels Hospital v. Younger (1977) 66
Cal. App. 3d 359, 367, fn.2 [broad grant of power in articles of incorporation must be read
in light of its more specific provisions].) Article 98 states that “punishment shall be
decided for a person whose malfeasance has been determined before a tribunal,” and
includes termination among the punishments that the tribunals may impose upon officers,
which as noted above includes pastors. Article 99 provides that individuals subject to
disciplinary action shall be punished pursuant to rules, which “shall be determined
16
separately.” These are the only specific provisions in the OMC constitution that define or
govern termination procedures for pastors, who enjoy other employment protections such
as the preservation of their title “for one’s lifetime” (Article 35), the guarantee of a
congregational vote in the event their resignation ever is recommended (Article 42), and,
in the case of the assistant pastor, a fixed tenure of one year (Article 40). Taken as a
whole, the OMC constitution does not grant the Session absolute authority to terminate
pastors without cause or absent the procedural protections established by articles 98 and
99.
The trial court further concluded that the “tribunal” contemplated by article 98 is
“a hearing or trial before which the person accused or the person whose rights are
affected has effective notice so that he or she may present his or her case at the tribunal.”
We agree. As Judge Hogue stated in the Excommunication Action, dictionaries define
“tribunal” as “the seat of a judge” or a “court or forum of justice.” (See, e.g., American
Heritage Dict. (2d college ed. 1982) p. 1293 [“A seat or court of justice.”]; Webster’s
New World Dict. (3d college ed. 1991) p. 1427 [“a court of justice”].) Because OMC’s
constitution mandates that a tribunal or forum of justice must impose punishment on
officers of OMC, it clearly contemplates that such proceedings will be conducted with
fair procedures, including notice of the proceeding and an opportunity to be heard.
Therefore, pastors Park and Kim could not be terminated under the terms of
OMC’s constitution without receiving notice of a tribunal in which their termination was
at issue and an opportunity to be heard on the matter.14 The trial court properly found
that pastors Park and Kim were not given such notice or opportunity to respond.
The Session never gave pastor Kim notice of the May 2, 2012 proceeding at which
he was purportedly terminated. Nor did the Session give him an opportunity to respond
14
Prior to June 13, 2012, when the disciplinary action bylaws went into effect, it
appears that a quorum of the Session could, at least in theory, function as the tribunal
contemplated by article 98, as long as it provided notice and an opportunity to be heard to
those it proposed to punish.
17
to the allegations made against him at the meeting. In fact, pastor Kim was purposefully
excluded from the meeting. The active elders then voted to terminate him. By the next
day, when Pastor Kim first received his notice of the proceeding and its outcome, his
purported termination was already effective. Assuming the session constituted a tribunal,
it failed to provide pastor Kim with the fair procedures required by article 98.
On June 5, 2012, pastor Park received a letter from a disciplinary committee
requesting his response to allegations against him by June 8, 2012. However, pastor Park
was purportedly terminated at an emergency meeting held on June 7, 2012, before he had
an opportunity to respond to the June 5, 2012 letter. He did not receive notice of that
meeting and did not attend it. He first learned of the proceedings and his purported
termination in a letter sent after the meeting had concluded. Even assuming the meeting
constituted a tribunal, pastor Park did not receive notice or an opportunity to respond as
required by article 98.
Further, we find no error in the trial court’s conclusion that the Session did not
properly terminate pastors Park and Kim on August 30, 2012. On August 22, 2012, in an
apparent attempt to provide notice and an opportunity to be heard, the Session sent
pastors Park and Kim notice of a non-regular meeting of the Session. At the meeting, the
Session purported to terminate pastors Park and Kim, who were not present. The Session
then sent letters to the pastors informing them of their terminations. However, by August
2012, the disciplinary action bylaws were in effect. Pursuant to article 99 of OMC’s
constitution, punishment was to be imposed pursuant to the rules established by those
bylaws. Among other things, the disciplinary action bylaws stated that the disciplinary
action committee was to provide notice of an upcoming trial and the disciplinary action
committee was to conduct such trials.
These procedures were not followed for pastors Park’s and Kim’s purported
August 30, 2012 terminations. Contrary to the bylaws, the disciplinary action committee
was not involved. The Session, which is distinct from the disciplinary action committee,
notified pastors Park and Kim of only a non-regular meeting of the Session, not a trial
18
conducted by the committee. And in fact, the August 30, 2012 proceeding was
conducted by the Session, not the disciplinary action committee. Accordingly, the
Session’s attempt to terminate pastors Park and Kim on August 30, 2012 was improper
under OMC’s constitution and the disciplinary action bylaws.
II. Plaintiffs Fail to Meet Their Burden Of Showing that the Court Erred in
Finding that Defendant Elders Lee, Jung, and An Were Session Members
Plaintiffs contend that in light of the undisputed facts it is impossible for defendant
elders to have been Session members on September 12, 2012. Plaintiffs argue that given
defendant elders’ undisputed ages, the undisputed commencement date of their terms on
the Session, and the time credits granted to them in the Kang Action, all of their terms
expired well before September 12, 2012. They further argue that the judgment in the
Excommunication Action did not grant defendant elders any time credits and that
defendant elder Young Song Lee could not have been entitled to any purported time
credits from the Excommunication Action because he was a plaintiff in that action.
However, the record does not include a reporter’s transcript of the second phase of trial
conducted on January 16, 2014. The paucity of the record is fatal to plaintiffs’ challenge
to the court’s finding that defendant elders were Session Members as of September 12,
2012.
The judgment and orders of the trial court are presumed on appeal to be correct,
“‘and all intendments and presumptions are indulged’” in their favor. (Schnabel v.
Superior Court (1993) 5 Cal. 4th 704, 718, quoting In re Marriage of Arceneaux (1990)
51 Cal. 3d 1130, 1133.) Appellants bear the burden of overcoming this presumption by
showing error on an adequate record. Where the appellants fail to provide an adequate
reporter’s transcript, “it is presumed that the unreported trial testimony would
demonstrate the absence of error.” (Estate of Fain (1999) 75 Cal. App. 4th 973, 992; see
also Smith v. Laguna Sur Villas Condominium Assn. (2000) 79 Cal. App. 4th 639, 646-
647; Brown v. Boren (1999) 74 Cal. App. 4th 1303, 1320-1321.) “Failure to provide an
adequate record on an issue requires that the issue be resolved against [the appellants].”
19
(Hernandez v. California Hospital Medical Center (2000) 78 Cal. App. 4th 498, 502
(Hernandez).)
Here, plaintiffs failed to meet their burden of providing an adequate record on
appeal. The parties did not retain a court reporter for the second phase of trial on January
16, 2014, the court did not issue a statement of decision, and plaintiffs have not attempted
to create a record of the January 16, 2014 proceedings by any other means. As a result,
we cannot undertake a meaningful review of plaintiffs’ challenge to the court’s findings
regarding defendant elders’ Session membership.
The court’s minutes provide the only record of the January 16, 2014 proceedings.
The minutes state, “Court and counsel have calculated the service times [] and credits of
Lee, Jung, and An, and all parties stipulate that said calculations are correct, and are to be
applied pursuant to [Judge Hogue’s judgments in the Kang and Excommunication
Actions], and that Lee, Jung, and An were session members at the time of the filing of
this instant action.” Thus, the record clearly establishes that the parties stipulated to the
calculation of service times and time credits to which defendant elders were entitled.
However, the record is silent on how the parties arrived at the stipulations, the precise
terms of those stipulations, and how the court applied them. The stipulation appears to
include the very issue to be determined -- that defendant elders Lee, Jung, and An were
Session members at the time of the filing of the instant action. 15 On appeal, the parties
propose conflicting calculations for the service times and time credits to be applied to
defendant elders. Because plaintiffs have provided an inadequate record, we do not know
the actual service times and time credits to which the parties stipulated or how the court
applied them. Therefore, we must presume that the court applied the parties’ stipulations
correctly and properly found that defendant elders were Session members at the time this
15
Admittedly, it would be unusual for the plaintiffs to stipulate that defendant elders
were Session members at the time the original complaint was filed, because that was the
very issue to be tried. Nonetheless, our review is limited to the record before us, and the
minutes reflect exactly that.
20
action was filed on September 12, 2012. (See Estate of Fain, supra, 75 Cal.App.4th at p.
992.) We are accordingly compelled by the state of the record to presume no error and
affirm.16 (Hernandez, supra, 78 Cal.App.4th at p. 502.)
III. The Court Did Not Abuse Its Discretion in Declining to Rule on Plaintiffs’
Session Membership
Plaintiffs contend the court failed to fully adjudicate their cause of action for
declaratory relief because it did not determine “who the authorized Session members
are.”17 The parties agree that we review the court’s purported failure to fully adjudicate
the issue of Session membership for an abuse of discretion. We find no abuse of
discretion.
In their cause of action for declaratory relief, plaintiffs alleged that following the
purported termination of pastors Park and Kim, the Session consisted of plaintiff elders
and one non-party Session member, but that defendants disputed this and contended that
the Session was comprised of defendants. Plaintiffs accordingly sought a declaration of
“who the authorized Session members are.” Following the first phase of trial on the
termination of pastors Park and Kim, the court held the second phase of trial on what it
described as the “only issue remaining in Plaintiffs’ Second Amended Complaint . . . :
the validity of the Session membership of the three Defendant Elders.” The court’s
16
Plaintiffs contend that the court’s March 29, 2013 order on plaintiffs’ Corporations
Code motion determined facts establishing that defendant elders could not be Session
members on September 12, 2012. We disagree. The court’s March 29, 2013 order was
based on the evidence before it at that time. The court presumably did not base that order
on the same service times and time credits to which the parties stipulated at the trial.
Further, the court’s findings during the second phase of trial are not inconsistent with its
March 29, 2013 order. That order was limited in scope and, regarding defendant elders’
Session membership, held only that defendants Jung and Young Song Lee were ineligible
for election to the Session on July 1, 2012 based on the mandatory retirement age. As for
defendant An, the court found that plaintiffs failed to establish that he was ineligible for
election due to age restrictions. The March 29, 2013 order did not address whether
defendant elders were members of the Session as of September 12, 2012.
17
While the court did not explicitly adjudicate plaintiffs’ causes of action for
conversion and interference with contracts, plaintiffs do not raise those issues on appeal.
21
judgment states that “[t]he Court did not rule on the issue of Plaintiffs’ Session
membership terms as the Court deemed that it was not a subject of the [second amended
complaint].”
The court acted within its discretion in finding that the second amended complaint
did not put plaintiffs’ Session membership at issue. In addition to the pastors’
termination, the second amended complaint was primarily concerned with the Session
membership of Lee, Jung, and An. We agree with defendants that plaintiffs’ request for a
declaration of “who the authorized Session members are” is vague and ambiguous.
Plaintiffs contend that their ex parte application seeking leave to file a second
amended complaint informed the court that it must determine “who controls [OMC],
which includes who is validly the Session.” However, plaintiffs’ ex parte application is
just as vague as the allegations of their second amended complaint.
Given the second amended complaint’s focus on the membership of defendant
elders Lee, Jung, and An and the absence of allegations specifically requesting a
determination of plaintiffs’ Session membership, it was not unreasonable for the court to
conclude that plaintiffs’ Session membership was not at issue in the second amended
complaint. The court was within its broad discretion in concluding that a determination
of the Session membership of defendant elders resolved the issue of “who the authorized
Session members are.”
In addition, because the record does not include a reporter’s transcript of the
second phase of trial, we do not know whether plaintiffs raised this issue at trial, and if
they did, how the court responded. In the absence of a record, we find no abuse of
discretion.
IV. The Court Did Not Abuse Its Discretion in Denying Plaintiffs a Longer Trial
Continuance
Plaintiffs contend that the court abused its discretion when it denied their request
for a trial continuance to afford them time to retain new counsel after terminating their
prior counsel. “A denial of a request for a continuance constitutes an abuse of discretion
where the ruling is arbitrary, capricious, and contrary to the interests of justice under all
22
the circumstances. [Citation.]” (Vann v. Shilleh (1975) 54 Cal. App. 3d 192, 196.) We
find no abuse of discretion.
Rule 3.1332 of the California Rules of Court states that “[c]ontinuances of trials
are disfavored,” and that “the dates assigned for a trial are firm. All parties and their
counsel must regard the date set for trial as certain.” (Cal. Rules of Court, rule 3.1332(a)
& (c).) Continuances may be granted “on an affirmative showing of good cause,”
including “[t]he substitution of trial counsel, but only where there is an affirmative
showing that the substitution is required in the interests of justice.” (Cal. Rules of Court,
rule 3.1332(c)(4). In ruling on a motion for continuance, “the court must consider all the
facts and circumstances that are relevant to that determination,” including the proximity
of the trial date, whether any previous continuances were granted, the prejudice that
parties will suffer as a result of a continuance, whether all parties have stipulated to a
continuance, and the court’s calendar.” (Cal. Rules of Court, rule 3.1332(d).)
Further, “‘[p]arties litigant [sic] have no absolute right to insist upon a change of
counsel at the last moment before the time set for the commencement of the trial, where
such change of counsel requires a continuance in order that the case may be properly
prepared for trial.’ [Citation.] ‘If a (trial) must be continued . . . every time an attorney
withdraws from the case, there would be no end to the matter.’ [Citations.]” (County of
San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal. App. 3d 776, 783-
784.)
Even assuming plaintiffs’ termination of their trial counsel was in the interests of
justice, the court was not required under the circumstances to grant plaintiffs more than a
two-day continuance. Several of the factors the court is required to consider weighed
against a trial continuance. Plaintiffs moved to terminate their counsel and continue the
trial date on the day the second phase of trial was scheduled to begin. The court had
already granted a continuance of approximately six months to accommodate the filing of
plaintiffs’ second amended complaint. Further, plaintiffs’ request for a continuance came
just four days after the court had denied defendant elders Lee’s and An’s similar request
23
for a continuance based on their recent retention of counsel. It was certainly within the
court’s discretion to deny plaintiffs a substantial continuance based on the same ground—
a last minute substitution of counsel. Finally, the court found that a continuance would
prejudice defendants. Under these circumstances, the court acted within its discretion in
refusing to grant plaintiffs a longer continuance.
V. The Court Did Not Abuse Its Discretion in Denying Plaintiffs’ Motion for
New Trial
Plaintiffs contend that the court should have granted their motion for new trial
based on the evidence they presented of defendant elders’ Session membership terms.
We review a trial court’s order on a motion for new trial for an abuse of discretion.
(Fassberg Const. Co. v. Housing Authority of City of Los Angeles (2007) 151
Cal. App. 4th 720, 752 [“A trial court has broad discretion in ruling on a new trial motion,
and the court’s exercise of discretion is accorded great deference on appeal. [Citation.].”)
We find no abuse of discretion.
Plaintiffs limit their challenge to the court’s order denying their motion for new
trial to the issue of defendant elders’ Session membership. However, as discussed above,
we have no reporter’s transcript of the second phase of trial or any other record of the
terms of the parties’ stipulations regarding defendant elders’ service times and time
credits. Again, in light of the inadequate record we must presume that the court applied
the stipulations correctly and properly found that defendant elders were Session members
at the time this action was filed. (See Estate of Fain, supra, 75 Cal.App.4th at p. 992.)
Plaintiffs did not provide any evidence in their motion for new trial sufficient to
overcome this presumption. On this record, we find no abuse of discretion.
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DISPOSITION
We affirm the judgment and order denying plaintiffs’ motion for new trial.
Defendants are to recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
25