Castanon v. Long Beach Lesbian etc. CA2/1 ( 2020 )


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  • Filed 11/2/20 Castanon v. Long Beach Lesbian etc. CA2/1
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
    ALEXA CASTANON,                                                      B303237
    Plaintiff and Appellant,                                   (Los Angeles County
    Super. Ct. No. 19STCV05359)
    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 Krieger for Defendants and Respondents.
    ____________________
    Plaintiff Alexa Castanon appeals the trial court’s denial of
    her petition for writ of mandate under Code of Civil Procedure
    section 1085, addressed to the corporate activities of defendant
    Long Beach Lesbian & Gay Pride, Inc. (LBLGP). We have
    jurisdiction pursuant to Code of Civil Procedure section 904.1,
    subdivision (a). Finding that Castanon has failed to demonstrate
    error on the part of the trial court, we affirm.
    BACKGROUND
    Castanon filed the instant petition for writ of mandate in
    the superior court on February 20, 2019, naming as defendants
    LBLGP and its treasurer, Joseph Olney. This filing followed the
    filing by Castanon on December 5, 2018 of a separate action in a
    different branch of the superior court for “removal of directors for
    fraud, malfeasance and gross misconduct and declaration of
    member’s rights,” case No. 18LBCP00073, naming as defendants
    LBLGP, Doretha Denise Newman, and LaRhonda Slaughter.
    Counsel for defendants in both actions filed a motion to
    consolidate the two cases on March 15, 2019. On April 8, 2019,
    the two cases were deemed related and assigned for all purposes
    to Judge Michael P. Vicencia, the judge in the earlier action. At a
    case management conference on June 10, 2019, the trial court set
    a hearing date of August 7, 2019, for the petition for writ of
    mandate, and laid out a briefing schedule.
    On June 25, 2019, Castanon filed her second amended
    petition for writ of mandate (SAP). The SAP alleges that at all
    relevant times Castanon was a member in good standing and a
    director of LBLGP. The SAP sought from the trial court (a) a
    peremptory writ of mandate compelling LBLGP to deliver to
    members an annual financial report; (b) a peremptory writ of
    mandate compelling LBLGP to allow Castanon to inspect and
    2
    copy all books and records of LBLGP and to inspect the physical
    properties of the corporation; (c) court-ordered appointment of
    inspectors or independent accountants to audit the financial
    statements and investigate the property, funds, and affairs of
    LBLGP; (d) fair and reasonable decisions by the court about
    whether to retain the assets and property of LBLGP; (e) an
    injunction prohibiting LBLGP from selling or contracting to sell
    any of its real property; and (f) dispensing with the rules
    governing elections at LBLGP, halting new elections pending
    resolution of the earlier action, establishing rules on elections “to
    infuse the organization with new members,” filling all empty
    vacancies on the board of directors, and allowing for the orderly
    operation of LBLGP pending the above steps. Castanon also
    asserted the LBLGP could not lawfully pay the legal expenses for
    defendants Newman and Slaughter in the first action, where they
    were represented by the same defense counsel representing
    LBLGP.
    On the same day, June 25, 2019, Castanon filed a 74-page
    ex parte application for temporary restraining order barring
    LBLGP from selling or contracting to sell any of its properties,
    particularly the property located at 707 East 7th Street in Long
    Beach, to be heard on June 26, 2019. This same ex parte
    application had been made by Castanon on March 1, 2019, before
    Judge Mary H. Strobel in Department 82, prior to the case
    reassignment. Judge Strobel denied the earlier application. On
    June 26, 2019, Judge Vicencia denied this newer application.
    On July 18, 2019, Castanon served a notice of hearing on
    her petition for writ of mandate, with the hearing date set for
    August 7, 2019. This notice was accompanied by a memorandum
    of points and authorities, a request for judicial notice of the
    3
    earlier action, and a declaration and supplemental declaration of
    Castanon attaching numerous exhibits. The notice of hearing
    announced that the following items of relief would be sought from
    the court:
    “(a) Respondents [LBLGP and Olney] forthwith comply
    with the duty of making and delivering to the members an
    annual report containing all of the information and financial
    statements required by Corporations Code [s]ection 6321;
    “(b) Respondents LBLGP and Olney forthwith permit
    [Castanon] and/or her duly authorized representative to inspect
    and copy the financial books, records and documents as
    authorized by Corporations Code [s]ection 6333, and to afford
    such facilities and assistance in the course of this inspection as
    the [c]ourt deems proper;
    “(c) the [c]ourt exercise its powers under Corporations Code
    [s]ection 6333 and appoint one or more competent inspectors or
    independent accountants to audit the financial statements and
    investigate the property, funds and affairs of LBLGP, and to
    report thereon in such manner as the court may direct;
    “(d) require the individual defendants in the action entitled
    Alexa Castanon v. LBLGP, Doretha Denise Newman and
    LaRhonda Slaughter, LA.S.C. [c]ase No. 18LBCP00073, to
    comply with Corporations Code[ section] 5238[, subdivision ](f)
    and forthwith provide LBLGP with an undertaking for any legal
    fees advanced and/or sought to be advanced on their respective
    behalf, to properly obtain board approval for the advancement of
    legal fees and costs before any further fees or costs are advanced,
    and require them to repay all sums advanced in violation of
    [s]ection 5238[, subdivision ](f); and
    4
    “(e) the [c]ourt exercise its authority under Corporations
    Code [s]ection 5515 to: (1) dispense with the rules governing
    when elections will be held at LBLGP, (2) halt new elections
    pending a resolution of the issues raised in the [companion case],
    (3) establish rules on promoting membership so as to infuse the
    organization with competent officers and directors, (4) determine
    who board members are, (5) fill all empty vacancies on the board
    of directors, and (6) allow for the orderly operation of LBLGP
    pending a full reorganization of the election process.” The
    written submissions by Castanon in support of her writ petition
    comprised some 275 pages.
    On the same day, July 18, 2019, LBLGP and Olney filed a
    memorandum in opposition to Castanon’s SAP that included a
    declaration from Olney. On August 2, 2019, LBLGP and Olney
    responded to the July 18 filings by Castanon, submitting a
    memorandum of points and authorities opposing Castanon’s
    points and authorities along with declarations of Newman,
    Slaughter, and Lawrence Cagney (LBLGP counsel) as well as
    numerous written objections to the evidence offered by Castanon.
    No reply papers were filed by Castanon.
    On August 5, 2019, Castanon filed evidentiary objections to
    the Olney declaration filed on July 18, 2019, the Slaughter
    declaration filed on August 2, 2019, the Newman declaration filed
    on August 2, 2019, and the Cagney declarations filed on July 18
    and August 2, 2019. On August 6, 2019, LBLGP and Olney filed
    a verified response to Castanon’s SAP, denying most of the
    averments.
    On August 6, 2019, LBLGP filed a supplemental
    declaration of Cagney concerning evidence produced by
    godaddy.com, an internet service provider, stating that the actual
    5
    registrant for a rival website critical of LBLGP1 was Leslie
    Smith, counsel for Castanon. This evidence was obtained by
    subpoena over Castanon’s objection.
    The record before us indicates that the trial court held a
    hearing on August 7, 2019, to consider the petition for writ of
    mandate. The only record of these proceedings is a minute order
    dated August 7, 2019, which states in its entirety: “Matter is
    called for hearing. [¶] LaRhonda Slaughter and Wayne Manous
    are sworn and testify for [Castanon]. [¶] Hearing – Other
    Election is scheduled for 08/15/2019 at 10:00 AM in Department
    S26 at Governor George Deukmejian Courthouse. [¶] [LBLGP]
    is ordered to prepare and submit a [p]roposed order.”
    On August 9, 2019, the trial court filed an amended order
    re procedures for LBLGP’s 2019 elections. This document recites
    that it is based on the court’s “[h]aving read and considered the
    parties’ briefs, having considered the oral argument of counsel,
    having received the oral testimony of LaRhonda Slaughter and
    Wayne Manous, [and] having received an agreement and
    stipulation from the parties” from which the court found good
    cause to establish the procedures set out in the order. The order
    provided for the LBLGP elections to be held on the evening of
    August 14, 2019, with the cast ballots to be placed in sealed
    envelopes and brought to the court the next morning, August 15,
    1 The  subpoena sought “documents identifying the
    registrant or owner of the anonymously registered website
    ‘longbeacbgaypride.org’ (‘the counterfeit website’) which is not
    affiliated with [LBLGP]. That website includes a call to boycott
    LBLGP and accuses its leaders of serious misconduct and even
    fraud.”
    6
    where the court would supervise the opening of the envelopes and
    counting of the ballots.
    The next event reflected in the record occurred on
    August 15, 2019, in another minute order entitled “Hearing –
    Other Election.” This document states, in pertinent part:
    “Matter is called for hearing. [¶] LaRhonda Slaughter and
    Wayne Manous are sworn and testify. [¶] Elections are held. [¶]
    As to the 3-year membership elections, the voting results are as
    follows: [¶] Alexa Castanon – 8 votes for, 12 votes against . . . .”
    Subsequently, on October 23, 2019, the trial court filed a
    further order denying the petition for writ of mandate. After
    reciting the items of relief requested by Castanon, the court
    stated: “Having read and considered the parties’ briefs, having
    considered the oral argument of counsel, having received the oral
    testimony of LaRhonda Slaughter and Wayne Manous, and
    having received an agreement and stipulation from the parties,
    on August 8, 2019, the Court issued an Amended Order re
    Procedures for Respondent Long Beach Lesbian & Gay Pride’s
    2019 Election. Pursuant to that [o]rder, Respondent Long Beach
    Lesbian and Gay Pride, Inc. conducted its 2019 election of
    members, directors and officers on August 14, 2019. This Court
    counted the ballots cast in that election in open court on
    August 15, 2019. The election results are set forth in the Court’s
    August 15, 2019 minute order herein. Among such results,
    Petitioner Alexa Castanon failed to receive votes sufficient to
    return her to membership in Respondent Long Beach Lesbian &
    Gay Pride, Inc. and is therefore no longer a member of such
    organization or its Board of Directors. [¶] Having read and
    considered the Second Amended Petition, Petitioner’s
    Memorandum of Points and Authorities, the Declarations of
    7
    Alexa Castanon in Support Thereof and Respondents’ Opposing
    briefs and evidence, and having supervised Respondent Long
    Beach Lesbian & Gay Pride, Inc.’s 2019 election, and having
    declined to grant any of the relief specified in Petitioner’s Second
    Amended Petition for Writ of Mandate, [¶] IT IS HEREBY
    ORDERED that: [¶] Petitioner’s Second Amended petition for
    Writ of Mandate is DENIED in its entirety.”
    Castanon filed a notice of appeal on December 24, 2019.
    The trial court entered a formal judgment of dismissal on
    January 3, 2020. We deem the appeal timely.2
    DISCUSSION
    A.     Standard of Review
    Castanon argues that this appeal presents “pure questions
    of law” based on facts that Castanon claims were “unrefuted” in
    the trial court. We find no merit in this argument.
    Hundreds of pages of documentary evidence were
    submitted to the trial court by the parties, and extensive written
    objections to virtually all of this evidence were submitted by both
    sides. In addition, the record reflects that the trial court received
    oral testimony, as well as hearing arguments of counsel, on at
    least two occasions.3 The facts below were plainly not
    2In accordance with rule 8.104(d)(2) of the California Rules
    of Court, we treat the notice of appeal as having been filed
    immediately after the entry of judgment.
    3 The instant case thus stands in distinction to a situation
    such as that in People v. Ogunmowo (2018) 
    23 Cal. App. 5th 67
    , 79-
    80, where the trial court was ruling based only on declarations
    without live testimony and without evidentiary objections. In the
    present case, among other things, the trial court had the
    8
    undisputed, notwithstanding Castanon’s opinion that the facts
    were “unrefuted.”
    “In reviewing the trial court’s ruling on a writ of mandate
    (Code Civ. Proc., § 1085), the appellate court is ordinarily
    confined to an inquiry as to whether the findings and judgment of
    the trial court are supported by substantial evidence.” (Saathoff
    v. City of San Diego (1995) 
    35 Cal. App. 4th 697
    , 700; accord,
    Dolan-King v. Rancho Santa Fe Assn. (2000) 
    81 Cal. App. 4th 965
    ,
    974; Rodriguez v. Solis (1991) 
    1 Cal. App. 4th 495
    , 502.) Only in
    cases where the underlying facts are genuinely undisputed does
    the appellate court resolve questions of law. (Ibid.)
    “Our review of the trial court’s ruling is conducted
    according to the usual principles: In reviewing determinations of
    fact, all factual matters are viewed most favorably to the
    prevailing party, with all conflicts resolved in favor of the
    judgment appealed from; we determine only whether any
    substantial evidence supports the conclusion reached by the trier
    of fact. (Committee for Responsible Planning v. City of Indian
    Wells (1989) 
    209 Cal. App. 3d 1005
    , 1010-1011 . . . .) Regarding
    the trial court’s use of a particular legal standard, in the absence
    of a contrary indication in the record, we assume a correct
    standard was used in ruling on the petition. (Id. at p. 1011.) ‘ “A
    judgment or order of the lower court is presumed correct. All
    intendments and presumptions are indulged to support it on
    matters as to which the record is silent, and error must be
    affirmatively shown.” ’ (Denham v. Superior Court (1970) 2
    opportunity to observe the demeanor and credibility of several of
    the declarants who had submitted written evidence.
    
    9 Cal. 3d 557
    , 564 . . . .)” (Consaul v. City of San Diego (1992) 
    6 Cal. App. 4th 1781
    , 1792, fn. omitted.)
    “The exercise of jurisdiction in mandamus rests to a
    considerable extent in the wise discretion of the court.”
    (McDonald v. Stockton Met. Transit Dist. (1973) 
    36 Cal. App. 3d 436
    , 440.)
    “Although mandamus is generally classed as a legal
    remedy, the question of whether it should be applied is largely
    controlled by equitable considerations. (Dowell v. Superior Court
    (1956) 
    47 Cal. 2d 483
    . . . .)” (Genser v. McElvy (1969) 
    276 Cal. App. 2d 709
    , 711; accord, Dare v. Board of Medical Examiners
    (1943) 
    21 Cal. 2d 790
    , 795; Curtin v. Department of Motor Vehicles
    (1981) 
    123 Cal. App. 3d 481
    , 485.) Accordingly, “one who seeks the
    aid of a court in obtaining the remedy of mandamus must come
    into court with clean hands.” (Draper v. Grant (1949) 
    91 Cal. App. 2d 566
    , 571.)
    B.     The Record Before This Court
    We immediately confront the problem that Castanon has
    failed to furnish an adequate record demonstrating error on the
    part of the trial court. It is not our role, in these circumstances,
    to independently reweigh the voluminous evidence submitted by
    the parties to determine whether we agree with the trial court’s
    decision. Rather, we are governed by the substantial evidence
    and abuse of discretion standards of review described above. And
    Castanon has not facilitated this review.
    First, Castanon failed to make a timely request for a
    statement of decision from the trial court as to its ruling on her
    petition for writ of mandate.
    10
    Second, Castanon has not furnished a transcript of either of
    the trial court hearings, on August 7 and August 15, 2019, at
    which testimony was taken and rulings were made.
    On the first point, the doctrine of implied findings compels
    us to conclude that the trial court found against Castanon on the
    merits of her petition for writ of mandate. “The doctrine of
    implied findings requires the appellate court to infer the trial
    court made all factual findings necessary to support the
    judgment. (Sammis v. Stafford (1996) 
    48 Cal. App. 4th 1935
    ,
    1942 . . . .) The doctrine is a natural and logical corollary to three
    fundamental principles of appellate review: (1) a judgment is
    presumed correct; (2) all intendments and presumptions are
    indulged in favor of correctness; and (3) the appellant bears the
    burden of providing an adequate record affirmatively proving
    error. (In re Marriage of Arceneaux (1990) 
    51 Cal. 3d 1130
    ,
    1133 . . . ; Denham v. Superior Court 
    [, supra
    ,] 2 Cal.3d [at p.]
    564 . . . ; Maria P. v. Riles (1987) 
    43 Cal. 3d 1281
    , 1295 . . . .)”
    (Fladeboe v. American Isuzu Motors Inc. (2007) 
    150 Cal. App. 4th 42
    , 58.)
    On the second point, failure to provide reporter’s
    transcripts, the analysis is similar. “ ‘ “[I]f any matters could
    have been presented to the court below which would have
    authorized the order complained of, it will be presumed that such
    matters were presented.” ’ (Bennett v. McCall (1993) 
    19 Cal. App. 4th 122
    , 127 . . . .) This general principle of appellate
    practice is an aspect of the constitutional doctrine of reversible
    error. (State Farm Fire & Casualty Co. v. Pietak (2001) 
    90 Cal. App. 4th 600
    , 610 . . . .) ‘ “A necessary corollary to this rule is
    that if the record is inadequate for meaningful review, the
    appellant defaults and the decision of the trial court should be
    11
    affirmed.” ’ (Gee v. American Realty & Construction, Inc. (2002)
    
    99 Cal. App. 4th 1412
    , 1416 . . . .)” (Foust v. San Jose Construction
    Co., Inc. (2011) 
    198 Cal. App. 4th 181
    , 187.)
    C.     Conclusion
    We are satisfied that substantial evidence supported the
    trial court’s rulings in this matter, and that no abuse of discretion
    has been demonstrated by Castanon. In the absence of an
    affirmative showing of error by Castanon, we affirm the trial
    court. (Consaul v. City of San 
    Diego, supra
    , 6 Cal.App.4th at
    p. 1792.)
    DISPOSITION
    The trial court’s judgment dismissing Castanon’s petition
    for writ of mandate is affirmed. LBLGP and Olney shall recover
    their costs on appeal.
    NOT TO BE PUBLISHED
    SINANIAN, J.*
    We concur:
    ROTHSCHILD, P. J.
    BENDIX, J.
    * Judge of the Los Angeles Superior Court, assigned by the
    Chief Justice pursuant to article VI, section 6 of the California
    Constitution.
    12
    

Document Info

Docket Number: B303237

Filed Date: 11/2/2020

Precedential Status: Non-Precedential

Modified Date: 11/2/2020