Lake Lindero Homeowners Assn., Inc. v. Barone ( 2023 )


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  • Filed 2/28/23; Certified for Publication 3/27/23 (order attached)
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    LAKE LINDERO HOMEOWNERS                             B306164
    ASSOCIATION, INC., et al.,
    Los Angeles County
    Plaintiffs and Respondents,                 Super. Ct. No.
    20VECP00041
    v.
    CHRISTOPHER T. BARONE,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of
    Los Angeles County, Shirley K. Watkins, Judge. Affirmed.
    Christopher T. Barone, in pro. per., for Defendant and
    Appellant.
    Kulik Gottesman Siegel & Ware, Thomas M. Ware II
    and Justin Nash for Plaintiffs and Respondents.
    _________________________
    Defendant Christopher T. Barone appeals an order
    under Corporations Code section 7616 confirming the validity
    of an election removing the former board of the Lake Lindero
    Homeowners Association, Inc. (the Association) and electing a
    new board of directors. 1 Barone makes two principal contentions:
    (1) the election was not valid because it contravened the
    Association’s bylaws and statutory provision governing board
    recall elections, and (2) section 7616 did not authorize plaintiffs’
    1      Statutory references are to the Corporations Code, unless
    otherwise designated.
    Barone noticed an appeal from a “Judgment after court
    trial” entered on May 4, 2020. The record, including the register
    of actions, does not reflect the entry of a judgment on May 4, 2020
    or any other date. Rather, on May 4, 2020, the trial court entered
    an order and final statement of decision confirming the validity
    of the board election under section 7616. Although that order
    disposed of only one of plaintiffs’ two causes of action, plaintiffs
    subsequently dismissed their remaining claim on May 22, 2020.
    Because the court’s May 4, 2020 order and plaintiffs’ voluntary
    dismissal collectively have “all the earmarks of a final judgment,”
    Barone properly took this appeal on May 28, 2020. (Estate of
    Miramontes-Najera (2004) 
    118 Cal.App.4th 750
    , 755; Sullivan
    v. Delta Air Lines, Inc. (1997) 
    15 Cal.4th 288
    , 304 [a judgment
    is final “ ‘ “when it terminates the litigation between the parties
    on the merits of the case and leaves nothing to be done but to
    enforce by execution what has been determined” ’ ”]; PV Little
    Italy, LLC v. MetroWork Condominium Assn. (2012) 
    210 Cal.App.4th 132
    , 144 (PV Little Italy) [order invalidating
    corporate election under § 7616 appealable where “order appealed
    from accomplished that goal, and neither party has indicated that
    anything more of substance remains to be done in the litigation,
    except entry of judgment”].)
    2
    action or the trial court’s order validating the recall election. 2
    We reject both contentions and affirm.
    2       Barone commits several pages of his opening brief to
    challenging the trial court’s credibility determinations. It is
    settled that “ ‘[c]onflicts and even testimony [that] is subject
    to justifiable suspicion do not justify the reversal of a judgment,
    for it is the exclusive province of the trial judge or jury to
    determine the credibility of a witness and the truth or falsity
    of the facts upon which a determination depends.’ ” (People
    v. Penunuri (2018) 
    5 Cal.5th 126
    , 142, italics added, quoting
    People v. Zamudio (2008) 
    43 Cal.4th 327
    , 357.) We thus
    disregard all contentions challenging the trial court’s credibility
    determinations as insufficient to support reversal of the order.
    Barone makes other contentions that do not warrant
    meaningful discussion. These include that the trial court
    refused to consider an earlier ruling in an unrelated case
    involving an Association recall election; that the board election
    violated procedures pertaining to the election of public officials
    under the Elections Code; that the court refused to admit 500
    pages of exhibits submitted after the pretrial deadline and after
    plaintiffs rested their case; that the court refused to compel
    testimony from the Association’s attorney after Barone failed
    to make an offer of proof; that the Association’s attorney violated
    the Rules of Professional Conduct by his presence at the election;
    that the court disregarded conflicting evidence about which
    parties sent and received election materials; and that several
    procedural violations (such as the failure to sign a case
    management form) occurred during pretrial proceedings. Among
    other shortcomings, Barone fails to support these scattershot
    claims with a reasoned argument or citation to relevant legal
    authorities, and he categorically fails to address, let alone satisfy,
    his burden to demonstrate a miscarriage of justice occurred.
    (See Pool v. City of Oakland (1986) 
    42 Cal.3d 1051
    , 1069
    [An appellant “must also show that the error was prejudicial
    [citation] and resulted in a ‘miscarriage of justice’ ”—i.e., that
    3
    FACTS AND PROCEDURAL HISTORY
    Consistent with our standard of review for factual
    questions, we state the evidence in the light most favorable
    to the trial court’s factual findings, indulging all reasonable
    inference in support of the court’s order. 3 (Ryland Mews
    Homeowners Assn. v. Munoz (2015) 
    234 Cal.App.4th 705
    , 712.)
    1.    The Recall and Full Board Election
    The Association is a California non-profit corporation
    charged with operating the Lake Lindero development—a 459-lot
    common interest development and golf community located in
    “ ‘ “it is reasonably probable that a result more favorable to
    the appealing party would have been reached in the absence
    of the error.” ’ ”].) Because the opening brief fails to fulfill these
    fundamental requirements of appellate process, we deem all
    these contentions waived. (People v. Stanley (1995) 
    10 Cal.4th 764
    , 793 [“ ‘[E]very brief should contain a legal argument with
    citation of authorities on the points made. If none is furnished
    on a particular point, the court may treat it as waived, and pass
    it without consideration.’ ”].)
    We likewise deem forfeited arguments Barone makes
    for the first time in his reply brief, including his claim (without
    citation to the record) that the trial court purportedly interfered
    with a contract Barone had with his legal counsel. (Varjabedian
    v. City of Madera (1977) 
    20 Cal.3d 285
    , 295, fn. 11 [“Obvious
    reasons of fairness militate against consideration of an issue
    raised initially in the reply brief of an appellant.”].)
    3     Barone filed a motion to augment the record with
    documents that were not filed or lodged in the trial court.
    The motion is denied. (See Vons Companies, Inc. v. Seabest
    Foods, Inc. (1996) 
    14 Cal.4th 434
    , 444, fn. 3 [“Augmentation
    does not function to supplement the record with materials not
    before the trial court.”]; Cal. Rules of Court, rule 8.155(a)(1).)
    4
    Agoura Hills. The Association common areas include a golf
    course, driving range, tennis courts, pool, restaurant, pro shop,
    and a lake.
    Membership in the Association is appurtenant to
    ownership of a lot within the development. The Association
    is governed by a five-member uncompensated board of directors.
    Since 2018, Lordon Management Company has provided
    professional management services to the Association.
    Barone is a member of the Association and former member
    of its board of directors. In December 2018, he resigned his
    board position and accepted paid employment as the Association’s
    chief executive officer (CEO).
    On September 5, 2019, board member Michael Allan was
    served with a petition signed by more than five percent of the
    Association’s members calling for a special meeting to recall
    the entire board of directors and elect a new board if the recall
    was successful. At the time, the other board members, including
    Allan, were Michael Umann, Dave DiNapoli, Paul Bromley, and
    Hal Siegel. Allan advised all the board members and Lordon
    Management of the petition. He hand-delivered the original
    petition to Lordon Management the next day.
    The board did not fix a time for the special meeting or give
    notice of the meeting to the Association’s members within 20 days
    of receiving the petition, as is required under section 7511,
    subdivision (c). 4 When the 20-day statutory period expired,
    4     Section 7511, subdivision (c) provides, “Upon request
    in writing to the corporation . . . by any person (other than the
    board) entitled to call a special meeting of members, the officer
    forthwith shall cause notice to be given to the members entitled
    to vote that a meeting will be held at a time fixed by the board
    5
    Allan, in his capacity as one of the petitioners, sent notice of the
    special meeting to the Association’s 459 members.
    The notice stated the purpose of the special meeting was
    to hold a vote on the removal of the entire board and, in the event
    of a recall, an election of the new board. Due to an error on the
    email address listed for candidacy submissions, Allan sent a new
    notice listing the date of the meeting as December 19, 2019.
    Due to the full board’s inaction, the petitioners also took it
    upon themselves to conduct the election. 5 As part of that process,
    Allan, on behalf of the petitioners, contracted with the League
    of Women Voters (LWV), a non-partisan entity with no stake
    in the outcome of the election, to retain an inspector of elections.
    Judy Murphy of the LWV was ultimately appointed Inspector
    of Elections for the December 2019 recall.
    In its customary role as an inspector of elections, the
    LWV receives and tallies ballots, but does not mail out election
    materials. Accordingly, the petitioners prepared the election
    materials, stuffed the ballot envelopes, and mailed ballots out
    to the homeowners at the petitioners’ individual expense.
    not less than 35 nor more than 90 days after the receipt of the
    request. . . . If the notice is not given within 20 days after receipt
    of the request, the persons entitled to call the meeting may
    give the notice or the superior court of the proper county shall
    summarily order the giving of the notice, after notice to the
    corporation giving it an opportunity to be heard.”
    5     Evidence elicited at trial showed Barone, ostensibly
    speaking for a majority of the board, had instructed Lordon
    Management, which normally would have assisted with an
    Association election, to “do nothing until legal counsel and/or
    the board advises differently.”
    6
    The LWV conducted the election meeting on December 19,
    2019. Murphy, in her role as Inspector of Elections, announced
    a quorum was not present, as the LWV had not received in excess
    of 50 percent of the votes of the membership (the minimum
    participation required to constitute a quorum under the
    Association’s bylaws). 6 Following Murphy’s announcement,
    a majority of the members present at the meeting voted to
    adjourn the meeting to December 23, 2019. 7
    At the December 23, 2019 meeting, Murphy determined
    the required quorum of 25 percent of the membership (115 of the
    459 members) had been met. (See fn. 7, ante.) Of the 190 ballots
    received, Murphy counted 156 votes in favor of recalling the
    entire board.
    Having determined the recall passed, the LWV proceeded
    to certify the election of the new board: Allan; Harriet Cohen;
    Siegel; Umann; and Bromley. Lordon Management mailed
    notice of the election results to the membership.
    On December 31, 2019, the new board of directors
    eliminated Barone’s CEO position.
    6     As of December 19, 2019, the LWV had received a total of
    182 sealed ballot envelopes of a possible 459 (39.6 percent).
    7      As we will discuss, the Association’s bylaws provide that
    if a quorum is not present, “the members present either in person
    or by proxy, may without notice other than announcement at
    the meeting, adjourn the meeting to a time not less than forty-
    eight (48) hours nor more than thirty (30) days from the time
    the original meeting was called, at which meeting twenty-five
    percent (25%) of the votes of the membership shall constitute
    a quorum.”
    7
    2.     The Complaint
    On January 21, 2020, plaintiffs (the Association, Allan,
    and Cohen) filed this action against Barone and current and
    former board members Umann, Bromley, and DiNapoli, asserting
    two causes of action for declaratory relief under section 7616
    and common law nuisance.
    The complaint alleged defendants had refused to “recognize
    the validity of the recall” and continued to assert that “the prior
    Board remains in power and that Defendant Barone remains the
    putative ‘CEO’ of the Association.” It further alleged defendants
    were “engaged in extensive efforts to hinder the new Board of
    Directors from conducting the affairs of the Association.”
    As relevant to this appeal, plaintiffs prayed for a
    declaration under section 7616 that the December 2019 election
    recalling the Association’s board of directors was valid; that
    the Association’s board of directors consists of Allan, Bromley,
    Cohen, Siegel, and Umann; and that “Barone is not the CEO
    of the Association and not its authorized agent.”
    3.     The Statement of Decision
    On May 4, 2020, after an 11-day bench trial, the court filed
    a final statement of decision and order declaring, among other
    things: The December 23, 2019 full board recall election was
    valid; Allan, Bromley, Cohen, Siegel, and Umann “are (and
    have been since [December 23, 2019])” the Association’s directors;
    and the “former CEO Christopher Barone has no authority
    (and has had no authority since the date of his termination)
    to act on behalf of the [Association] . . . unless granted by the
    current board.”
    The court found: The petitioners properly presented the
    petition for full board recall to the former board; the former board
    8
    unreasonably violated its duties under the Association’s bylaws
    and governing statutory law to set a special meeting on the
    recall election after receipt of the petition; the petitioners
    properly conducted the recall election when the former board
    failed to do so; the LWV properly executed its duties as Inspector
    of Elections and did not prejudice or demonstrate bias against
    any interested party; and the election was conducted in
    accordance with the Association’s bylaws and governing statutory
    law, including provisions prescribing a majority vote and quorum
    requirements. In making these findings, the court determined
    defense witnesses testifying to alleged bias or improprieties in
    the petition and voting process were “not credible.”
    As relevant to this appeal, the trial court determined,
    as a legal matter, that a provision in the Association’s bylaws
    requiring a “vote of the majority of the votes held by the entire
    membership” to remove the entire board or an individual director
    was legally invalid and “unenforceable.” The court concluded
    this provision conflicted with and was displaced by statutes
    specifying that, for a nonprofit mutual benefit corporation of
    50 or more members (like the Association), only the majority
    of the votes represented and voting at a duly held meeting
    at which a quorum is present was needed to remove a director.
    (See §§ 7222, subd. (a)(2), 5034, 7151, subd. (e).)
    On May 22, 2020, plaintiffs voluntarily dismissed their
    remaining cause of action for nuisance. On May 28, 2020,
    Barone filed this appeal. 8
    8      The other defendants did not appeal and are not parties
    to this appeal.
    9
    DISCUSSION
    1.     The Appeal Is Not Moot: Material Questions Remain
    Regarding the Construction of the Bylaws and
    Statutes Governing the Vote Required to Remove
    the Association’s Board of Directors
    As a threshold matter, plaintiffs contend this appeal
    should be dismissed as moot because reversal of the challenged
    order will not grant Barone effective relief now that subsequent
    board elections have taken place since the trial court’s order.
    We disagree.
    Because the duty of every judicial tribunal is “ ‘ “ ‘to decide
    actual controversies by a judgment which can be carried into
    effect, and not to give opinions upon moot questions . . . [,] [i]t
    necessarily follows that when . . . an event occurs which renders
    it impossible for [the] court, if it should decide the case in favor
    of [the appellant], to grant him any effectual relief whatever,
    the court will not proceed to a formal judgment . . . .’ [Citations.]”
    [Citation.] The pivotal question in determining if a case is moot
    is therefore whether the court can grant the [appellant] any
    effectual relief. [Citations.] If events have made such relief
    impracticable, the controversy has become “overripe” and
    is therefore moot. [Citations.] [¶] . . . When events render
    a case moot, the court, whether trial or appellate, should
    generally dismiss it.’ ” (Parkford Owners for a Better Community
    v. County of Placer (2020) 
    54 Cal.App.5th 714
    , 722.)
    Plaintiffs did not file a written motion to dismiss with
    supporting affidavits and evidence establishing subsequent
    elections have in fact occurred that render this appeal moot.
    (See, e.g., American Alternative Energy Partners II v. Windridge,
    Inc. (1996) 
    42 Cal.App.4th 551
    , 557 [respondent should “have
    10
    made a formal, written motion for dismissal of the appeal, which,
    because it would have been based on matters not appearing
    in the appellate record, would have required the submission of
    affidavits or other supporting evidence”].) 9 Be that as it may,
    even if we assume there have been subsequent board elections
    since December 2019—as seems practically certain given the
    requirement for annual elections in the Association’s bylaws—
    we still cannot consider this appeal moot. The challenged
    order grants declaratory relief embracing a disputed judicial
    construction of the bylaws and statutes governing the vote
    required to remove a director from the Association’s board.
    Under these circumstances, “the general rule governing mootness
    becomes subject to the case-recognized qualification that an
    appeal will not be dismissed where, despite the happening
    of the subsequent event, there remain material questions for
    the court’s determination.” (Eye Dog Foundation v. State Board
    of Guide Dogs (1967) 
    67 Cal.2d 536
    , 541 (Eye Dog Foundation).)
    9      Plaintiffs filed a request for judicial notice of a grant deed
    showing Uhlmann conveyed his interest in one lot in the
    development on July 30, 2020. (Evid. Code, §§ 452, subd. (c),
    459, subd. (a); see Ragland v. U.S. Bank National Assn. (2012)
    
    209 Cal.App.4th 182
    , 194.) While we grant that request, we
    cannot accept, as plaintiffs assert, that the grant deed proves
    Uhlmann could not have maintained his position on the board
    after the conveyance. Significantly, the Association’s bylaws
    contemplate that a member may own multiple lots, such that
    a member is “entitled to one vote for each Lot in which they hold
    the interest required for membership.” (Italics added.) Because
    we have no evidence to establish how many lots Uhlmann owned
    when he conveyed the subject lot, the grant deed is insufficient
    to prove he is no longer a member of the Association entitled to
    serve on its board of directors.
    11
    Eye Dog Foundation is instructive. In that case, the
    plaintiff sought injunctive relief and a declaratory judgment
    to invalidate provisions of the Business and Professions
    Code covering “the subject ‘Guide Dogs for the Blind,’ ” the
    enforcement of which had led to the suspension of the plaintiff’s
    business license to train seeing eye dogs. (Eye Dog Foundation,
    supra, 67 Cal.2d at p. 540.) Several months after the trial
    court entered a judgment upholding all but one section of the
    challenged provisions, the regulatory state board formally
    reinstated the plaintiff’s license after the plaintiff took action
    to comply with the challenged statutes. (Id. at pp. 540–541.)
    Recognizing that the pending appeal could no longer result in
    effective relief enjoining enforcement of the challenged statutes,
    our Supreme Court nonetheless held the appeal was not moot
    because the plaintiff “not only sought injunctive but declaratory
    relief, to wit, a declaratory judgment that the subject legislation
    is unconstitutional on its face and as applied to plaintiff’s
    operation,” such that there “remain[ed] material questions
    for the court’s determination” on appeal. (Id. at p. 541.) As
    our high court explained, an exception to the general mootness
    doctrine “has been applied to actions for declaratory relief”
    in such circumstances “upon the ground that the court must
    do complete justice once jurisdiction has been assumed [citation],
    and the relief thus granted may encompass future and contingent
    legal rights.” (Ibid.)
    Even if we accept plaintiffs’ contention that we can
    neither reinstate the former board, nor restore Barone to his
    CEO position, this does not render the appeal moot. Regardless
    of the board’s current composition, Barone’s appeal presents a
    material question for this court’s determination encompassing
    12
    his future and contingent legal rights under the Association’s
    bylaws and the statutes governing the recall of its board of
    directors. As in Eye Dog Foundation, our reversal of the trial
    court’s declaratory relief order would grant Barone effective
    relief by embracing his construction of the relevant bylaws and
    statutory provisions, which remain enforceable against him
    and the rest of the Association’s current membership for future
    recall elections. (Eye Dog Foundation, supra, 67 Cal.2d at p. 541,
    fn. 2 [“ ‘while it has been said that the declaratory judgment
    acts necessarily deal with the present rights, the “present right”
    contemplated is the right to have immediate judicial assurance
    that advantages will be enjoyed or liabilities escaped in the
    future’ ”].) This material question warrants disposition on
    the merits.
    2.     The Trial Court Correctly Determined the Former
    Board Was Validly Recalled Under the Association’s
    Bylaws and Statutory Law
    Barone contends the trial court improperly disregarded a
    provision of the Association’s bylaws requiring a majority vote
    of the “entire membership” to remove the board or an individual
    director from office. In the alternative, he argues the recall was
    not valid because the relevant special meeting did not achieve
    a quorum. We conclude the trial court correctly construed the
    bylaws and governing statutes.
    Barone’s contentions challenge the trial court’s application
    of the bylaws and statutes to essentially undisputed facts.
    The contentions are therefore subject to our de novo review.
    (Roybal v. Governing Bd. of Salinas City Elementary School
    Dist. (2008) 
    159 Cal.App.4th 1143
    , 1148.) Likewise, insofar
    as the contentions concern the trial court’s construction of the
    13
    Association’s bylaws and our state’s governing statutes, these
    issues too are subject to our de novo review. (See ibid.; PV Little
    Italy, supra, 210 Cal.App.4th at pp. 144–145.)
    It is undisputed that the recall election was approved by a
    vote of 156 in favor of recalling the entire board, with 190 ballots
    received out of 459 total membership votes. Barone contends this
    was insufficient to approve the recall under Article VI, Section 3
    of the Association’s bylaws, which provides: “The entire Board
    of Directors or any individual Director may be removed from
    office with or without cause at any time by a vote of the majority
    of the votes held by the entire membership of record at any regular
    or special meeting of members.” (Italics added.) Because a
    majority of the 459 votes held by the entire membership of record
    is 230 votes, Barone contends the trial court erred in declaring
    the recall election valid.
    The trial court rejected this contention based on a collection
    of interconnected statutes that effectively prohibit a nonprofit
    mutual benefit corporation with 50 or more members from
    requiring more than “a majority of the votes represented and
    voting at a duly held meeting at which a quorum is present”
    to remove a director from the corporation’s board. (§§ 5034,
    7222, subd. (a)(2), 7151, subd. (e).)
    Section 7222 expressly governs the recall of directors
    serving on the board of a nonprofit mutual benefit corporation.
    The statute provides, in relevant part: “[A]ny or all directors
    may be removed without cause if: [¶] (1) In a corporation with
    fewer than 50 members, the removal is approved by a majority
    of all members (Section 5033). [¶] (2) In a corporation with 50
    or more members, the removal is approved by the members
    (Section 5034).” (§ 7222, subd. (a).) Under its plain terms, the
    14
    statute permits a corporation with fewer than 50 members to
    require the approval of “a majority of all members” (as specified
    in the Association’s bylaws); however, for a corporation with 50
    or more members (like the Association), the statute dictates that
    the removal need only be “approved by the members” as that
    phrase is defined in section 5034.
    Section 5034 provides: “ ‘Approval by (or approval of)
    the members’ means approved or ratified by the affirmative vote
    of a majority of the votes represented and voting at a duly held
    meeting at which a quorum is present (which affirmative votes
    also constitute a majority of the required quorum) or written
    ballot . . . or by the affirmative vote or written ballot of such
    greater proportion, including all of the votes of the memberships
    of any class, unit, or grouping of members as may be provided
    in the bylaws (subdivision (e) of Section 5151, subdivision (e)
    of Section 7151, or subdivision (e) of Section 9151) or in Part 2,
    Part 3, Part 4 or Part 5 for all or any specified member action.”
    (Italics added.) The statute’s reference to subdivision (e) of
    section 7151 is critical because, while section 5034 permits
    a nonprofit mutual benefit corporation to require a greater
    proportion of votes in its bylaws, section 7151, subdivision (e)
    expressly withdraws this authorization for a vote to remove
    a director from the corporation’s board.
    Section 7151, subdivision (e) provides: “The bylaws
    may require, for any or all corporate actions (except as provided
    in paragraphs (1) and (2) of subdivision (a) of Section 7222 . . .)
    the vote of a larger proportion of, or all of, the members or
    the members of any class, unit, or grouping of members or
    the vote of a larger proportion of, or all of, the directors, than
    is otherwise required by this part.”
    15
    Because section 7151, subdivision (e) expressly prohibits
    a nonprofit mutual benefit corporation with 50 or more members
    (like the Association) from requiring a greater proportion of
    votes than is specified in section 7222, subdivision (a)(2) for
    the removal of a director, the trial court correctly concluded
    Article VI, Section 3 of the Association’s bylaws could not
    be enforced to invalidate the recall election. And, because
    section 7222, subdivision (a)(2) requires only “approv[al] by
    the members” as defined in section 5034 to remove a director
    (§ 7222, subd. (a)(2)), the trial court correctly concluded the
    recall was valid if approved “by the affirmative vote of a majority
    of the votes represented and voting at a duly held meeting at
    which a quorum is present.” (§ 5034.)
    Notwithstanding the foregoing, Barone contends there were
    insufficient votes cast in the recall election to represent a quorum
    under the Association’s bylaws. The relevant bylaws provision
    states:
    “The presence at any meeting, in person
    or by proxy, of members entitled to cast in
    excess of 50 percent (50%) of the votes of the
    membership, shall constitute a quorum for any
    action . . . . If, however, such quorum shall not
    be present or represented at any meeting, the
    members present either in person or by proxy,
    may without notice other than announcement
    at the meeting, adjourn the meeting to a time
    not less than forty-eight (48) hours nor more
    than thirty (30) days from the time the original
    meeting was called, at which meeting twenty-
    16
    five percent (25%) of the votes of the
    membership shall constitute a quorum.”
    The evidence at trial proved that, following the Inspector
    of Election’s announcement that a quorum was not present at the
    December 19, 2019 meeting, a majority of the members present
    voted to adjourn the meeting to December 23, 2019 in accordance
    with the foregoing provision of the bylaws. The evidence further
    proved that, at the December 23, 2019 meeting, the Inspector
    of Elections had received 190 ballots, exceeding the required
    25 percent of the votes of the membership (115 of the total
    459 votes) needed to constitute a quorum at that meeting.
    Barone does not dispute the foregoing facts. Rather,
    he argues the 25 percent quorum provision in the Association’s
    bylaws “conflict[s]” with sections 7222 and 5034, which, he
    emphasizes, “contain[ ] no language about a ‘reduced quorum.’ ”
    Contrary to Barone’s premise, neither section 5034 nor section
    7222 governs minimum quorum requirements for a nonprofit
    mutual benefit corporation. The relevant statute is section 7512.
    Section 7512, subdivision (a) provides: “One-third of the
    voting power, represented in person or by proxy, shall constitute
    a quorum at a meeting of members, but, subject to subdivisions
    (b) and (c), a bylaw may set a different quorum.” (Italics added.)
    Subdivision (b) stipulates that “[w]here a bylaw authorizes
    a corporation to conduct a meeting with a quorum of less than
    one-third of the voting power, then the only matters that may
    be voted upon . . . by less than one-third of the voting power
    are matters notice of the general nature of which was given.” 10
    10    Section 7512, subdivision (c) authorizes members
    to “continue to transact business until adjournment
    notwithstanding the withdrawal of enough members to leave
    17
    Consistent with section 7512, the Association’s bylaws
    authorized a quorum of 25 percent of the voting power after
    an adjournment. (See § 7512, subd. (a).) 11 And, the record
    proves the matter voted upon at the meeting—the recall of
    the board and election of a new board in the event the recall
    was successful—was disclosed in the original meeting notice.
    (Id., subd. (b)). The trial court correctly determined the
    December 2019 vote validly recalled the former board under
    the Association’s bylaws and governing statutory law.
    3.     Section 7616 Authorized the Order Validating
    the December 2019 Recall Election
    Barone contends section 7616 authorizes a claim to validate
    an election only—“not a recall.” He emphasizes there is “nothing”
    in the statute expressly addressing “a recall or removal of
    directors,” and he argues it is a “decisive issue” that “there
    cannot be an election absent a successful recall” under the
    less than a quorum, if any action taken (other than adjournment)
    is approved by at least a majority of the members required to
    constitute a quorum.”
    11     The Association’s bylaws also comply with regulations
    pertaining to quorum requirements promulgated by the
    Department of Real Estate for common interest developments
    like Lake Lindero. In particular, section 2792.17, subdivision
    (e)(2) of title 10 of the California Code of Regulations provides:
    “In the absence of a quorum at a members’ meeting a majority
    of those present in person or by proxy may adjourn the meeting
    to another time, but may not transact any other business. . . .
    The quorum for an adjourned meeting may be set by the
    governing instruments at a percentage less than that prescribed
    for the regular meeting, but it shall not be less than 25 percent
    of the total voting power of the Association.” (Italics added.)
    18
    Association’s bylaws. Additionally, Barone argues he is not
    a proper defendant under the statute.
    Barone’s arguments raise questions of statutory
    interpretation subject to our independent de novo review.
    (Committee to Save the Beverly Highlands Homes Assn. v. Beverly
    Highlands Homes Assn. (2001) 
    92 Cal.App.4th 1247
    , 1261.)
    “In the construction of statutes, the primary goal of the court
    is to ascertain and give effect to the intent of the Legislature.
    [Citations.] The court looks first to the language of the statute;
    if clear and unambiguous, the court will give effect to its plain
    meaning.” (Id. at p. 1265.) “The words used should be given
    their usual, ordinary meanings and, if possible, each word and
    phrase should be given significance. [Citations.] The words used
    ‘must be construed in context, and statutes must be harmonized,
    both internally and with each other, to the extent possible.’ ”
    (Ibid.)
    Contrary to Barone’s narrow reading of section 7616,
    we find the statutory text evidences a clear legislative intent
    to confer broad authority on the trial court in determining the
    validity of a board election. Under section 7616, subdivision (a),
    “[u]pon 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, the superior court of the proper county shall determine
    the validity of any election or appointment of any director of any
    corporation.” Critically, while this directive does not expressly
    refer to a recall election (as Barone emphasizes), subdivision (d)
    of the statute authorizes “[t]he court, consistent with the
    provisions of [the statutes governing nonprofit mutual benefit
    corporations] and in conformity with the articles and bylaws
    to the extent feasible, [to] determine the person entitled to
    19
    the office of director . . . and [to] direct such other relief as may
    be just and proper.” (§ 7616, subd. (d), italics added.)
    In Kaplan v. Fairway Oaks Homeowners Assn. (2002)
    
    98 Cal.App.4th 715
     (Kaplan), the reviewing court considered
    whether an action under section 7616 properly encompassed
    the plaintiffs’ claim that the challenged election violated their
    right to vote by proxy, such that the plaintiffs were entitled
    to prevailing party attorney fees under former Civil Code
    section 1354 for enforcing the association’s bylaws. 12 (Kaplan,
    at pp. 717–718.) The Kaplan court acknowledged that section
    7616 “does not create any substantive rights . . . to vote by proxy,”
    but recognized the statute was nonetheless broad enough to
    provide a “procedural vehicle” to adjudicate an action “to enforce
    the members’ proxy and cumulative voting rights under the
    bylaws.” (Kaplan, at pp. 719–720.)
    We similarly conclude the language of section 7616 is
    broad enough to provide a procedural vehicle for vindicating
    plaintiffs’ recall rights under the Association’s bylaws, even
    absent an express reference to recall elections in the statute’s
    text. Article VI, Section 3 of the bylaws authorizes a recall of
    the entire board of directors and makes the election of a new
    board part and parcel of the recall process: “The entire Board
    of Directors or any individual Director may be removed from
    office with or without cause at any time by a vote . . . at any
    regular or special meeting of members duly called, and a
    successor or successors may then and there be elected to fill
    12    Former Civil Code section 1354, subdivision (f) then
    provided for an award of prevailing party attorney fees in an
    action “ ‘to enforce the governing documents.’ ” (Kaplan, supra,
    98 Cal.App.4th at p. 718, italics omitted.)
    20
    the vacancy or vacancies thus created.” 13 (Italics added.) In
    adjudicating plaintiffs’ claim under section 7616 to enforce this
    provision of the bylaws, the statute not only unambiguously
    directed the trial court to “determine the validity of [the new
    board’s] election” (§ 7616, subd. (a)), but also authorized the
    court, “in conformity with the [recall provision of the] bylaws . . . ,
    [to] determine the person entitled to the office of director . . .
    and [to] direct such other relief as may be just and proper” (id.,
    subd. (d)). Because the trial court could not determine the
    validity of the election or “the person entitled to the office of
    director” without adjudicating the validity of the underlying
    recall election, it was “just and proper” for the court to enter an
    order under section 7616 confirming the recall election was valid.
    (§ 7616, subd. (d); see Kaplan, supra, 98 Cal.App.4th at p. 721.)
    For much the same reason, we reject Barone’s argument
    that he was not a proper defendant in this action. Section 7616,
    subdivision (c) directs the superior court, “[u]pon the filing of
    the complaint, and before any further proceedings are had” to
    “enter an order fixing a date for the hearing . . . and requiring
    notice of the date for the hearing and a copy of the complaint
    to be served upon the corporation and upon the person whose
    purported election or appointment is questioned and upon any
    person (other than the plaintiff) whom the plaintiff alleges
    13     As discussed in part 2, ante, while this provision of the
    bylaws requires “a vote of the majority of the votes held by the
    entire membership of record,” that part of the provision violates
    section 7151, subdivision (e) and thus is displaced by the vote
    requirement in section 7222, subdivision (a)(2) for the removal
    of directors from a nonprofit mutual benefit corporation with
    50 or more members.
    21
    to have been elected or appointed.” (Italics added.) Barone
    contends this provision establishes the parties who may be
    named as defendants under section 7616, and, because he was
    neither elected nor appointed in the December 2019 election,
    he argues he could not be sued under the statute. 14 We disagree.
    As we have said and as the trial court correctly recognized,
    section 7616, subdivision (d) authorizes the court to “direct
    such other relief as may be just and proper” in connection with
    confirming the validity of a board election. Here, the complaint
    alleged Barone, in his role as CEO and with the sanction of
    a majority of the former board, was engaged in frustrating the
    new board’s efforts to fulfill its duties under the Association’s
    bylaws. Having confirmed the validity of the new board’s
    election, the statute plainly authorized the trial court to enter
    an order confirming Barone had no authority to act on behalf of
    the Association, as was “just and proper” under the Association’s
    14    Barone also suggests the Association is not a proper
    plaintiff in this action, emphasizing that section 7616,
    subdivision (c) requires service of the complaint upon “the
    corporation.” However, as plaintiffs correctly argue, Barone fails
    to demonstrate how this purported error resulted in prejudice,
    given that Cohen and Allan (each a “member” and “person who
    had the right to vote in the election”) undisputedly had standing
    under the statute. (§ 7616, subd. (a).)
    22
    bylaws. (§ 7616, subd. (d).) Plaintiffs properly named Barone
    as a defendant in their section 7616 claim. 15
    15    Barone has moved for sanctions against plaintiffs’ counsel
    and the trial court. With respect to the lower court, he appears
    to argue the court reporter failed to provide him with electronic
    transcripts of the reported proceedings. (See Cal. Rules of Court,
    rule 8.23 [authorizing sanctions for failure of a court reporter to
    perform a duty imposed by statute or these rules].) Barone relies
    upon rule 8.144, which specifies the format requirements that
    apply “to clerks’ and reporters’ transcripts delivered in electronic
    form and in paper form.” (Id., rule 8.144(b)(1), italics added.) As
    the rule’s reference to “paper form” suggests, there is no mandate
    that the reporter deliver an electronic transcript—a paper form is
    also acceptable. (Ibid.; see also id., rule 8.130 [specifying general
    requirements for delivery of reporter’s transcript].) Thus, Barone
    has not demonstrated sanctions are warranted under rule 8.23.
    Barone’s motion for sanctions against plaintiffs’ counsel
    appears to relate largely to events that occurred before the
    underlying action or in connection with plaintiffs’ efforts to
    enforce the terms of the challenged order, neither of which is
    properly before this court on a motion for appellate sanctions.
    (See Cal. Rules of Court, rule 8.276(a) [specifying grounds for
    appellate sanctions].) To the extent his motion raises issues
    relevant to the appeal, it simply repeats arguments that Barone
    made in his principal briefs, which we have rejected. Moreover,
    as plaintiffs correctly argue, nothing in the relevant rule
    authorizes appellate sanctions against a respondent for defending
    an appeal. (See ibid.) The motion for sanctions is denied.
    23
    DISPOSITION
    The order is affirmed. Plaintiffs the Lake Lindero
    Homeowners Association, Inc., Michael Allan, and Harriet Cohen
    are entitled to their costs.
    EGERTON, J.
    We concur:
    EDMON, P. J.
    LAVIN, J.
    24
    Filed 3/27/23
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    LAKE LINDERO HOMEOWNERS                      B306164
    ASSOCIATION, INC., et al.,
    Los Angeles County
    Plaintiffs and Respondents,           Super. Ct. No.
    20VECP00041
    v.
    ORDER CERTIFYING
    CHRISTOPHER T. BARONE,                     FOR PUBLICATION
    [NO CHANGE IN JUDGMENT]
    Defendant and Appellant.
    THE COURT:
    The opinion in the above-entitled matter, filed on February 28, 2023,
    was not certified for publication in the Official Reports. For good cause, it
    now appears that the opinion should be published in the Official Reports.
    There is no change in the judgment.
    ________________________________________________________________________
    EGERTON, J.                  EDMON, P. J.                     LAVIN, J.
    

Document Info

Docket Number: B306164

Filed Date: 3/27/2023

Precedential Status: Precedential

Modified Date: 3/27/2023