Castanon v. Long Beach Lesbian and Gay Pride CA2/8 ( 2021 )

Filed 10/6/21 Castanon v. Long Beach Lesbian and Gay Pride CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ALEXA CASTANON, B303662
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 18LBCP00073)
v.
LONG BEACH LESBIAN AND
GAY PRIDE, INC., et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael P. Vicencia, Judge. Affirmed.
Leslie R. Smith for Plaintiff and Appellant.
Krieger & Krieger, Lawrence R Cagney, Linda Guthmann
Krieger and Terrence B. Krieger for Defendants and
Respondents.
_________________________
Appellant Alexa Castanon was voted out of membership in
and thus off the board of directors of Long Beach Lesbian & Gay
Pride, Inc. (LBLGP) in its August 2018 election. Shortly
thereafter, she filed this action for fraud against LBLGP, its
president, Dorothea Newman, and a vice-president, LaRhonda
Slaughter (respondents). The fraud action sought Newman’s and
Slaughter’s removal from the board of directors and appellant’s
own reinstatement. While the fraud action was pending,
appellant filed a petition for writ of mandate seeking, among
other things, to stay LBLGP’s annual August 2019 elections.
With the stipulation of the parties in the writ proceedings, the
court supervised a new election, in which appellant was again
voted out of LBLGP. Then, in this action, the trial court granted
respondents’ motion for judgment on the pleadings on the second
cause of action to reinstate appellant, finding it moot after the
court-supervised elections. After losing a series of discovery
disputes, appellant dismissed her first and only remaining cause
of action with prejudice. This appeal, which concerns appellant’s
membership only, followed.
Appellant contends the trial court erred in granting
judgment on the pleadings, in denying her motion to quash a
subpoena by which respondents sought the identity of the owner
of the website “LongBeachGayPride.org,” and in compelling her
to respond substantively to Requests for Admission (RFAs),
which she contends invade her right to privacy. We affirm the
judgment of dismissal.
2
BACKGROUND
Appellant filed her complaint in this matter on December 5,
2018. The complaint contains two causes of action. The first is
entitled “Removal of Directors for Fraud, Malfeasance and Gross
Misconduct [Cal. Corp. Code §5223],” the second “Declaration of
Member’s Rights [Cal. Corp. Code §5617].”1 A key claim of the
complaint was that LBLGP’s August 18, 2018 election was rigged
by Newman and Slaughter to remove appellant from
membership. The details of the election rigging were set forth in
the general allegations. The first cause of action alleged 14
wrongful acts by Newman and Slaughter, including two broad
allegations about the conduct of elections. In the second cause of
action, appellant alleged: “As a consequence of defendants’
wrongful actions, Plaintiff has been denied the right to
participate at or vote in any meetings, including board of
director’s meetings.”
Immediately after appellant filed this action, LBLGP
restored her to a voting seat on the board of directors.
On February 20, 2019, appellant filed a petition for writ of
mandate (LASC case No. 19STCV05359). Initially, appellant
complained in the petition of improprieties by LBLGP’s leaders,
particularly denying appellant’s requests to review and copy
LBLGP’s financial records. The petition named LBLGP’s
treasurer as respondent. The Superior Court deemed the cases
related and assigned both cases to the same judge.
1 Further unspecified statutory references are to the
Corporations Code.
3
While the writ proceedings were pending, respondents
undertook discovery in the fraud action. They served a subpoena
on GoDaddy.com to discover the identity of the owner of the
LongBeachGayPride.org website, which had a confusingly similar
name to LBLGP’s website LongBeachGayPride.org and which
contained statements respondents asserted were defamatory.
Respondents also contended identification of the owner was
necessary to prove their affirmative defense of unclean hands.
Appellant brought a motion to quash the subpoena. The trial
court limited the subpoena to require GoDaddy.com to respond
only if the owner of the website were appellant or her attorney; it
otherwise denied the motion. The owner was found to be
appellant’s attorney. Appellant has not provided this court with
a reporter’s transcript of the hearing on the motion to quash.
On August 7, 2019, the trial court held a lengthy hearing
on the writ petition, which included testimony by Slaughter and
Wayne Manous. Appellant had previously sought a stay of
LBLGP’s annual election in her writ petition, but during this
hearing, appellant agreed to LBLGP’s proposal to hold the
organization’s August 2019 election under court supervision.
Appellant has not provided this court with a reporter’s transcript
of the hearing.
A court-supervised election was held pursuant to the
stipulation of the parties. On August 15, 2019, the court presided
at a hearing to count the votes cast the previous day. Among
other results, LBLGP members voted 12 to 8 against renewing
appellant’s membership, which rendered her ineligible to sit on
the board of directors. Appellant has not provided this court with
a reporter’s transcript of the proceedings.
4
On October 23, 2019, the court denied appellant’s writ
petition in its entirety. Appellant appealed. The court’s denial
was affirmed by on November 2, 2020 in case No. B303237.2
On December 5, 2019, the trial court held a hearing on
respondents’ motion for judgment on the pleadings on the second
cause of action that prayed for relief as to appellant’s personal
membership. The court granted the motion, finding the cause of
action moot in light of the court-supervised election. The trial
court granted respondents’ motions to compel substantive
responses to certain form interrogatories and RFAs. The court
also imposed sanctions against appellant and her counsel in the
amount of $1,500 per motion. Appellant has not provided this
court with a reporter’s transcript of the hearing.
On December 30, 2019, appellant filed a request to dismiss
with prejudice her first case of action to remove Newman and
Slaughter as directors. This was appellant’s only remaining
cause of action. On January 3, 2020, the trial court signed and
entered a judgment of dismissal in favor or respondents and
found them to be the prevailing parties entitled to recover costs.
This appeal followed.
2 We deny respondents’ request that we take judicial notice
of the prior appeal. Judicial notice is unnecessary to the
resolution of this appeal.
5
DISCUSSION
A. The Trial Court Did Not Err in Granting Judgment on the
Pleadings on the Ground of Mootness.
The trial court granted judgment on the pleadings as to
appellant’s second cause of action on the ground that it was moot.
Appellant contends the trial court erred in finding the second
cause of action moot because that cause of action challenged the
validity of the entire 2018 election and so was not rendered moot
by changes to her individual membership status. She contends,
in the alternative, that the trial court abused its discretion in
failing to permit her to amend her complaint.
The standard of review of a motion for judgment on the
pleadings is the same as that for a general demurrer. (Dunn v.
County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1298.)
Thus, we review an order granting judgment on the pleadings de
novo. (Moore v. Regents of University of California (1990)
51 Cal.3d 120, 125.) We treat as true “ ‘all material facts
properly pleaded, but not contentions, deductions or conclusions
of fact or law. [Citation.] We also consider matters which may be
judicially noticed.’ [Citation.] Further, we give the complaint a
reasonable interpretation, reading it as a whole and its parts in
their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Generally, when judgment on the pleadings is sustained
without leave to amend, “we decide whether there is a reasonable
possibility that the defect can be cured by amendment: if it can
be, the trial court has abused its discretion and we reverse; if not,
there has been no abuse of discretion and we affirm. [Citations.]
The burden of proving such reasonable possibility is squarely on
the plaintiff.” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
6
Moot cases are “ ‘[t]hose in which an actual controversy did
exist but, by the passage of time or a change in circumstances,
ceased to exist.’ ” (Wilson & Wilson v. City Council of Redwood
City (2011) 191 Cal.App.4th 1559, 1573 (Wilson).)3 “Regardless of
the nature of the intervening events that lead to a finding
of mootness, a common denominator in mootness cases is that the
court expressly or impliedly concludes there is no longer an
existing controversy before it upon which effectual relief may be
granted.” (Association of Irritated Residents v. Department of
Conservation (2017) 11 Cal.App.5th 1202, 1223.) Simply put, “[a]
case becomes moot when a court ruling can have no practical
impact or cannot provide the parties with effective relief.” (Simi
Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503.) Since
mootness does not arise from a pleading defect in the complaint
but from external events, it would be an unusual case in which
mootness could be cured by amendment. Thus, when events
render a case moot, courts should generally dismiss it. (Parkford
Owners for a Better Community v. County of Placer (2020)
54 Cal.App.5th 714, 722.)
Construed liberally, nothing in the complaint in any way
indicates appellant is challenging the validity of the entire 2018
election. In her general allegations, appellant does allege broadly
that Newman and Slaughter attempted to have “select members
removed from the organization by setting up an elaborate scheme
to fix the organization’s recent annual election.” She further
3 “California courts will decide only justiciable controversies.
[Citations.] The concept of justiciability is a tenet of common law
jurisprudence and embodies ‘[t]he principle that courts will not
entertain an action which is not founded on an actual
controversy.’ ” (Wilson, supra, 191 Cal.App.4th at p. 1573.)
7
alleges they disbanded the election committee so that they “could
control the election process and achieve any outcome they
desired.” However, the only desired outcome alleged by appellant
was removing appellant from membership: Newman and
Slaughter planned and agreed to “to fix the outcome of the
election by having Plaintiff voted out.” They “gave instructions to
the vote counters to take all necessary measures to ensure that
the tally of votes in favor of Plaintiff did not reflect more than
50% of the votes cast.” Moreover, this is the only outcome
allegedly achieved by the election fraud. Appellant alleges that
after the election, she “was told she was not voted back into the
organization or onto the board. Plaintiff was the only member
who was not voted back.” (Italics added.)
The second cause of action itself is entitled “Declaration of
Member’s Rights.” The word “member’s” is singular, indicating it
seeks the declaration of the rights of one member, appellant. The
only new allegation in the cause of action is: “As a consequence
of defendants’ wrongful actions, Plaintiff has been denied the
right to participate at or vote in any meetings, including board of
director’s meetings.” Nothing in this allegation suggests that
appellant is seeking to invalidate the entire 2018 election or to
obtain a declaration of the rights of other members.
In her prayer for relief, appellant asks the court to declare
“null and void the attempts to remove Plaintiff as a member
and/or as a director in the August 8, 2018 election” and that
“Plaintiff is a member in good standing of defendant corporation
and thus entitled to vote at any board of director’s meeting” and
to enjoin certain actions by the board until her position and
8
voting rights are restored. She sought no other relief related to
the 2018 election.4
We see no error in the trial court’s determination that the
second cause of action was moot. Almost immediately after
appellant filed this lawsuit, respondents restored her
membership and director voting rights, pending resolution of the
action. Then, in the related writ proceedings, the trial court
granted appellant a statutorily approved remedy for her claim
that she was wrongfully rejected from membership by the rigged
2018 election: a court-supervised election in which members
voted on whether her membership should be renewed. (§ 5617,
subd. (d).)5 Appellant stipulated to this procedure. She lost her
membership in the court-supervised election, and with it any
eligibility to act as a director. These events left the court with no
effective relief to grant as to the second cause of action.
4 The only other remedy sought by appellant in her prayer
for relief was removal of Newman and Slaughter from office and
a bar to their reelection, but this relief is unmistakably part of
her First Cause of Action, entitled “Removal of Directors for
Fraud, Malfeasance and Gross Misconduct.” There is no
allegation that Newman and Slaughter rigged the 2018 to obtain
their own seats as directors.
5 Subdivision (d) of section 5617 provides: “The court,
consistent with the provisions of this part and in conformity with
the articles and bylaws to the extent feasible, may determine the
person entitled to the office of director or may order a new
election to be held or appointment to be made, may determine the
validity of the issuance of memberships and the right of persons
to vote and may direct such other relief as may be just and
proper.”
9
Appellant contends that the trial court was statutorily
required to set a hearing on the validity of the 2018 election
before deciding any other matter, and the court’s failure to do so
resulted in prejudicial error, specifically the mootness of her
second cause of action.
Section 5617, subdivision (c) provides: “Upon the filing of
the complaint, and before any further proceedings are had, the
court shall enter an order fixing a date for the hearing, which
shall be within five days unless for good cause shown a later date
is fixed.” The record on appeal is silent as to whether good cause
for a later date was shown, and we do not presume error on the
part of the trial court. (Foust v. San Jose Construction Co. Inc.
(2011) 198 Cal.App.4th 181, 187.) Even assuming the trial court
delayed such a hearing without good cause, appellant was not
prejudiced by the delay. She received membership and director
voting rights pending resolution of her claim of wrongful rejection
from membership. The court-supervised 2019 election was a
proceeding in the writ action, not this case. More importantly,
appellant stipulated to the court-supervised election with full
knowledge of the status of proceedings in this case. She cannot
now complain about the election’s timing.
Appellant also contends the trial court “recognized” at the
August 7, 2019 writ hearing that she could proceed with this
action challenging the validity of the 2018 election regardless of
the results in the court-supervised 2019 elections in the writ
proceedings. ~(AOB 28-29)~ Appellant raised this claim in her
opposition to the motion for judgment on the pleadings in this
action so the trial court was aware of her claim. Appellant has
not provided a copy of the reporter’s transcript of the August 7,
2019 hearing nor has she provided a copy of the reporter’s
10
transcript of the hearing on the motion for judgment on the
pleadings. It is appellant’s burden to provide a reporter’s
transcript or an agreed or settled statement if one is necessary
for appellate review. (Foust v. San Jose Construction Co. Inc.,
supra, 198 Cal.App.4th at p. 186.) A judgment or order of the
trial court is presumed correct, and if appellant does not provide
a record which is adequate for appellate review, the decision of
the trial court will ordinarily be affirmed. (Id. at p. 187.)
There is no basis to depart from that rule here. Although
the record is clear that appellant stipulated to the court-
supervised election proceedings, there is no written confirmation
of the details of the stipulation or of any representations by the
trial court. In addition, the record shows the court granted the
motion for judgment on the pleadings with an awareness of
appellant’s claim. This indicates to us that the court did not
agree with appellant’s recollection of what occurred at the August
7, 2019 writ hearing.
Appellant contends that even if the court did not
“recognize” that she could proceed nonetheless with her second
cause of action, the 2019 election could not resolve her claim that
the rigging of the 2018 election deprived her of a three-year term
as a director. We disagree. Appellant stipulated to having her
membership status determined by the 2019 election and by so
stipulating she necessarily agreed that this election would decide
whether she continued as a member and director. Put
differently, only members can serve as directors, and so by
deciding her membership, the 2019 election also determined her
eligibility to serve as a director.
11
Finally, appellant contends that in opposition to the
motion, she “repeatedly requested the court to grant [her] leave
to amend if it deemed any allegation to be insufficiently pled.”6
Appellant’s problem is not that her requests for relief were
unclear or her facts insufficiently pled. Her requests for relief are
crystal clear and her claims of election fraud are very specifically
pled. Her problem is that she specifically alleged that the
purpose of the 2018 election rigging was to get rid of her and that
she was the only person who was removed from membership as a
result of that election. The only election-related relief she sought
related to herself. The only directors she sought to remove were
Newman and Slaughter, and that relief was part of the First
Cause of Action only. It is this clarity and specificity which
resulted in the second cause of action becoming moot.
B. The Court’s Ruling Denying the Motion to Quash the
GoDaddy.com Subpoena Is Moot.
The owner of the website LongBeachGayPride.org took
steps to conceal her identity. Accordingly, respondents served a
6 On pages 3 and 4 of her opposition brief, appellant stated
generically that if the court found the facts in the complaint to be
“insufficiently alleged” or the nature of the relief sought
“unclear,” she “requests leave of court to amend the complaint to
cure any deficiencies.” On appeal, appellant provides two
additional record cites she claims show requests for leave to
amend, but the lines cited do not show such requests. She has
not provided any record cites showing she proffered specific facts
in the trial court in connection with her request to amend. Even
if leave to amend could be appropriate in moot cases, appellant
did not meet her burden of showing a reasonable possibility that
the defect could be cured. (Blank v. Kirwan, supra, 39 Cal.3d at
p. 318.)
12
subpoena on GoDaddy.com to discover the owner’s identity.
Respondents asserted the information was needed for their
affirmative defense of unclean hands. Appellant contends the
trial court erred in denying her motion to quash this subpoena.
Appellant’s inaction after her motion was denied resulted
in the revelation that the owner was her own attorney. Her
inaction rendered this claim moot. As respondents point out,
appellant did not seek a stay or writ review of the court’s ruling
and so GoDaddy.com provided the name of the owner to
respondents. The identity of the owner is no longer private. It is
not possible to undo the unmasking. (See Simi Corp. v.
Garamendi, supra, 109 Cal.App.4th at p. 1503 [mootness occurs
“when a court ruling can have no practical impact or cannot
provide the parties with effective relief”].)
Appellant contends that if this court finds error, the matter
could be remanded and the trial court could issue a protective
order requiring respondents and their attorneys to destroy the
“private information they received, seal the court files that might
include that information” and “prohibit the use or disclosure of
any information disclosed by GoDaddy.com” unless respondents
filed a direct action against the owner.
Appellant could have sought limitations on the disclosure
and use of the information to protect the owner’s privacy even if
the trial court had correctly denied her motion.7 Appellant has
7 Appellant has not identified what private information
GoDaddy.com might have provided apart from the identity of the
owner, but a protective order limiting the use of any such
information would have provided protection equivalent to its
destruction. Similarly, a protective order could have limited the
use of any private information to this case or to a separate direct
action.
13
not provided any record citations showing she made such efforts.
Further, this court’s internal records do not show any efforts by
appellant to protect the identity of the owner during this appeal.
As a result, the information is no longer private. A protective
order would have no practical impact at this point.
Appellant urges us to exercise our discretion to decide this
claim even though it is moot because it involves issues of public
interest and questions of law. We decline to do so.
The right to speak anonymously is well established in case
law, and it is recognized in the context of speech on the internet,
as appellant’s multiple case citations show. (See, e.g. Krinsky v.
Doe 6 (2008) 159 Cal.App.4th 1154.) This right to anonymity is
not absolute and a speaker’s identity may be ordered disclosed if
his or her statements are actionable. (See, e.g., Glassdoor, Inc. v.
Superior Court (2017) 9 Cal.App.5th 623, 635.) The actionable
nature of a statement is fact-dependent, which will vary from
case to case, and so the issue cannot be decided as a matter of
law. Although not determinative, an additional reason not to
decide the issue is the state of the record on appeal. It does not
appear to contain all documents relevant to the motion to quash,
and appellant has not provided a reporter’s transcript of the
hearing on the motion to quash.
The requirement of notice to the anonymous speaker before
disclosure of his or her identity is also well established in law.
Further, the trial court in this case recognized the need for notice
and limited the subpoena to require disclosure only if the
owner/speaker were appellant or her attorney, who indisputably
had notice of the subpoena. There is no need to decide any issue
of notice.
14
C. The Trial Court’s Order Compelling Responses to Certain
RFAs Has No Further Force and Effect and the Record Is
Not Adequate for Review of the Sanctions Order.
Appellant contends the trial court violated her First
Amendment rights and those of non-parties when it granted
respondents’ motion to compel responses to RFAs 52 through 77.
She also contends the trial court abused its discretion in granting
the motion because the RFAs sought irrelevant information.
Appellant has expressly stated she has not appealed the
first cause of action, which she voluntarily dismissed. Appellant
dismissed the first cause of action without responding to the
RFAs. We have found no error in the trial court’s dismissal of her
second cause of action. Accordingly, the trial court’s order
compelling appellant to respond to the RFAs has no force or
effect. There is no more case.
The trial court did order appellant to pay sanctions in
connection with the motion to compel responses to the RFAs, but
the record is inadequate to review this ruling. Even assuming
the trial court abused its discretion in compelling responses to
RFAs 52 through 77, the trial court’s order addressed more than
RFAs 52 through 57: it compelled appellant to respond to other
RFAs as well as to interrogatories. And in sanctioning appellant,
the court imposed an amount less than that sought by
respondents.
Without the reporter’s transcript, which appellant has not
provided, the record is inadequate to permit appellate review.
We have no way to determine the court’s reason for imposing
sanctions, or even whether the sanctions were based only on
appellant’s failure to respond to the challenged RFAs, as opposed
to the other RFAs and interrogatories which she does not
15
challenge on appeal. Accordingly, we uphold the trial court’s
order.
DISPOSITION
The judgment is affirmed. Respondents to recover costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
16