Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVRS706256, Ben T. Kayashima, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Good, Wildman, Hegness & Walley, and John A. Stillman; Robert D. Feighner for Plaintiffs and Appellants.
McKay, Graham & de Lorimier, John P. McKay, Michael P. Acain and Cathy D. Lee for Defendants and Respondents.
OPINION
HOLLENHORST Acting P. J.
I. INTRODUCTION
Plaintiffs, Saul Avila, Baldemar Rodriguez, Daniel Salomon and Abel Torres, four individual members of defendant Apostolic Assembly of Faith in Christ Jesus (the Church), appeal from judgment of dismissal following the trial court’s denial of their motion to set aside the results of the November 24, 2006, election (the election) of the General Board of Directors (General Board) the Church. Other defendants include present and former members of the General Board and the five members of the Church’s Qualifying Committee.
Plaintiffs contend: (1) defendant Edward Pacheco and nonparty Joel M. Montes should not have been approved as candidates for General Board positions under the Church’s constitution; (2) there was no evidence that the Qualifying Committee ever considered candidates with the majority of votes; (3) defendants failed to follow constitutional procedures in conducting the election; (4) the General Board acted capriciously and violated the Church’s constitution by using a weighting system to evaluate candidates; (5) the selection of Montes as a nominee violated constitutional requirements; and (6) the election was conducted with procedural irregularities. Plaintiffs also contend the trial court erred in sustaining defendants’ objections to certain of plaintiffs’ evidence and in overruling plaintiffs’ objections to certain of defendants’ evidence. We find no prejudicial error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
In plaintiffs’ operative first amended complaint filed December 13, 2007, plaintiffs sought (1) to set aside the election under Corporations Code section 9418, (2) declaratory relief, (3) an injunction, and (4) damages for breach of fiduciary duty. On February 4, 2008, plaintiffs filed a motion to set aside the election and order a new election.
Corporations Code section 9418 provides: “(a) Upon the filing of an action therefore 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. [¶] . . . [¶]
Evidence the parties submitted in connection with the motion shows that the Church is governed by a constitution, which establishes procedures for General Board elections. On November 23, 2006, the General Board appointed an Electoral Committee (Church const., art. 4, ¶ II). The General Board also appointed a Qualifying Committee, comprised of three members of the General Board and two district Bishops (Church const., art. 5, ¶ I.).
The operative Church constitution at the time of the election was the 2004 version. The parties agree that the 2007 version, which is included in the record on appeal, did not materially differ from the 2004 version in relevant respects. All further references to the Church constitution are therefore to the 2007 version.
Article 4 of the Church constitution provides, in part:
Article 5 of the Church constitution addresses the Qualifying Committee:
The election at issue took place on November 24, 2006. As provided by the Church constitution, the election was conducted under a multi-tiered system. First, candidates were selected by a general election process under which each eligible member, by secret ballot, wrote in the name of a candidate for each General Board position. (Church const., art. 4, [¶] VI.) The Electoral Committee then tallied those ballots and presented the results to the Qualifying Committee. (Church const., art. 4, ¶ VIII.)
The Church constitution directs the Qualifying Committee to consider the candidates “who have received a greater number of votes as to their capabilities, qualities, and their rights, and [to] approve two to five of them as candidates.” (Church const., art. 5, ¶ II.) In January 2005, defendant Daniel Sanchez, the Bishop president of the Church, requested that an inquiry be made into the meaning of the terms “‘capabilities, qualities and rights’” (which, translated into Spanish, is “‘capacidad, idoneidady derecho’” (See CID, post) as used in article 5, paragraph II of the Church constitution. Defendants Ismael Martin del Campo and Edward Pacheco were selected to make the appropriate inquiries to define those terms. Del Campo authored a document (the CID) explaining those terms relying on specific passages from the Bible.
For the office of General Secretary, Montes received three votes in the initial election, and Pacheco received two votes. Juan Fortino and plaintiff Salomon, the then-incumbent General Secretary, received a majority of votes cast in the initial general election. The Qualifying Committee referred to the CID at the November 2006 election to assist in determining the capabilities, qualities, and rights of the proposed candidates. Specifically, the Qualifying Committee weighted each candidate’s qualifications as follows: (1) 25 percent for vote; (2) 25 percent for “capabilities”; (3) 25 percent for “qualities”; and (4) 25 percent for “rights.” The Qualifying Committee then voted to determine whether to present each candidate as a nominee for a General Board position. Any candidate who did not obtain a majority vote of the Qualifying Committee was deemed not qualified and was not presented as a nominee. The Qualifying Committee presented Montes and Pacheco, but not Fortino and Salomon, as nominees to the electoral assembly, i.e., the Church members. (Church const., art. 4, ¶ IX.)
After the candidates selected by the Qualifying Committee were presented to the electoral assembly, all those voting then cast a second ballot through an electronic keypad. (Church const. art. 4, ¶ II.) A computer was used to tabulate those votes. The president of the Electoral Committee, who was responsible for supervising the election process, oversaw the counting of votes through computer tabulation. Pacheco was elected to the office of Bishop General Secretary.
After hearing the above evidence, the trial court denied the motion to set aside the election. The trial court found that it had jurisdiction to consider the matter because resolution did not require examination of the content of any ecclesiastical documents or interpretation of any religious doctrine, and that the parties had exhausted their administrative remedies under Corporations Code section 9418, subdivision (a). Those findings are not challenged on appeal. The trial court issued further specific findings, as follows:
The trial court’s order erroneously referred to Civil Code section 9418, subdivision (a).
(1) There was no constitutional irregularity in the selection of the Qualifying Committee and there was no constitutional requirement that the incumbent Bishop General Secretary be a member of that committee. That finding is not challenged on appeal.
(2) The evidence did not show that the Bishop president, rather than the General Board, had selected the members of the Qualifying Committee. That finding is not challenged on appeal.
(3) The express language of the Church constitution did not require the Qualifying Committee to approve as candidates only those nominees who received the highest number of nominations (and who met other specified qualifications).
(4) The Church constitution is silent as to how the Qualifying Committee determines which nominees it considers and as to how it determines which nominees are to be approved as candidates, and there is no constitutional requirement that the committee approve only nominees with the highest number of votes.
(5) The Church constitution does not prohibit the Qualifying Committee from using the CID or any other document or guideline in considering the capabilities, qualities, and rights of nominees.
(6) The use of touch pads and computers to tally votes did not violate the Church’s constitution, and the use of computers was the functional equivalent of a writing.
The parties agreed that the trial court’s order disposed of all claims and issues between them, and the parties therefore stipulated to dismiss the action to facilitate an appeal.
III. DISCUSSION
A. Standards of Review
We apply different standards of review to the different issues raised in this appeal. We apply de novo review to questions involving interpretation of the Church’s constitution because those are principally questions of law. (See, e.g., Concord Christian Center v. Open Bible Standard Churches (2005) 132 Cal.App.4th 1396, 1407-1408.) We review the trial court’s findings of fact using the substantial evidence standard, under which we “consider all the evidence in the light most favorable to the prevailing parties, giving them the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.]” (Id. at pp. 1408-1409.) Finally, we review the trial court’s evidentiary rulings for abuse of discretion. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.)
B. Approval of Pacheco and Montes as Candidates
Plaintiffs contend the Qualifying Committee should not have approved Pacheco and Montes as candidates under the Church’s constitution. In a related argument, plaintiffs contend there was no competent evidence that the candidates with the majority of votes in the initial general election, including plaintiff Salomon, were ever considered.
Plaintiffs filed the declaration of Torres in support of their motion, and plaintiffs now contend Torres stated in his declaration that the candidates who received the highest number of votes were not considered but were in fact disqualified. Torres’s declaration did not in fact so state; rather, the declaration stated that those who got the majority of votes were not approved as candidates. Failure to approve is not the equivalent of failure to consider.
As the Church constitution provides, simply getting a majority of votes in the initial election does not automatically qualify a person for a place on the final ballot. Rather, the constitution directs the Qualifying Committee to evaluate candidates on the basis of their “capabilities, qualities and rights.” (Church const., art. 5, ¶ II.) The constitution leaves it to the discretion of the Qualifying Committee to reject candidates on the basis of those criteria even if they received more votes in the initial ballot.
Moreover, by raising the argument that no competent evidence established that certain candidates were ever considered, plaintiffs attempt to shift the burden of proof to defendants. Evidence Code section 500 provides, “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” More specifically, “The party claiming that a person is guilty of . . . wrongdoing has the burden of proof on that issue.” (Evid. Code, § 520.) Plaintiffs had the burden of establishing irregularity in the procedures, but they failed to meet that burden.
C. Constitutional Election Procedures
Plaintiffs contend defendants failed to follow constitutional procedures for the conduct of the election.. Specifically, plaintiffs contend defendants improperly relied on the CID in considering candidates.
The trial court found the CID was not incorporated into the Church constitution by way of an amendment; however, the trial court also found there was “no [c]onstitutional prohibition against members of the Qualifying Committee using the CID or any other document or guideline, in considering the capabilities, qualities and rights of a nominee.” We agree. It was undisputed that the Qualifying Committee in fact considered candidates’ capabilities, qualities, and rights. That is what the constitution requires. In our de novo review, we conclude that nothing in the constitution prohibits use of a document such as the CID as an aid in interpreting the meaning of the terms capabilities, qualities, and rights.
D. Use of Weighting System
In a variation of their argument that use of the CID violated the Church constitution, plaintiffs also contend the General Board acted capriciously and violated the constitution by weighting each candidate’s qualifications as follows: (1) 25 percent for vote; (2) 25 percent for “capabilities”; (3) 25 percent for “qualities”; and (4) 25 percent for “rights.” All the constitution requires is that the Qualifying Committee uses those four criteria in evaluating candidates. It was undisputed that the Qualifying Committee did so. In our de novo review, we conclude that nothing in the constitution either requires or forbids applying equal weight to the four criteria.
E. Selection of Montes
Plaintiffs assert that the property of the church of which Montes was pastor was not placed in the name of the Church, but rather in the name of a separate corporation Montes had formed. Article 30, paragraph II of the Church constitution provides, “The deed of trust of all properties purchased or donated for the service of the Apostolic Assembly must bear the title: ‘APOSTOLIC ASSEMBLY OF THE FAITH IN CHRIST JESUS.’” Plaintiffs argue the selection of Montes as a candidate therefore violated the constitution.
The Church constitution sets forth requirements for candidates. To be a candidate for Bishop president or Bishop vice president, a person must be “an active minister, capable of supervising. Having satisfactorily completed at least one four-year term as a district bishop or served satisfactorily as a member on the General Board of Directors for two complete terms of four years each. In addition he must actively be serving at the time of the election in one of the positions mentioned, including sector elder or as a pastor.” (Church const., art. 6, ¶¶ I, II..) To be a candidate for the General Board, “it is required that the person have been a member of the General Board of Directors, a district bishop or sector elder, and at least hold a pastorate at the time of the election,” and that “each candidate must be approved by the Qualifying Committee as established in Article 5 of this Constitution.” (Church const., art. 6, ¶¶ IV, V.)
Plaintiffs argue that any disobedience of the Church constitution is a violation, even if done in ignorance (Church const. art. 39, ¶ IX) In their reply brief, plaintiffs further argue that Montes should not have been a candidate, because all candidates must be pastors, and to become a pastor a member must “‘be in agreement with the doctrinal, organizational , economic and disciplinary system’” of the Church. (Church const., art. 63.) In addition, article 64, paragraph IV, provides: “No pastor can assume responsibility over a church if he disagrees with the doctrinal principles and the economic and organizational system” of the Church. However, it was undisputed that Montes was a pastor. Moreover, plaintiffs have failed to establish that any concern about Montes’s eligibility was ever made known to the Qualifying Committee. We conclude plaintiffs’ argument therefore lacks merit.
F. Conduct of Election
Plaintiffs contend the election was conducted with procedural irregularities because (1) the Electoral Committee did not preside over the entire election; (2) the results of the elections were not delivered to the incumbent General Board or the Bishop General Secretary; (3) voting was conducted by the use of touch pad computers and tallied by the computer’s server, and thus the Electoral Committee neither tallied nor supervised the votes; and (4) the General Secretary was not allowed to notarize the appropriate election documents.
1. Electoral Committee’s Role in Presiding Over the Election
Plaintiffs provided the declaration of Torres, stating that “the General Office Administrators presided over the last portion of the process for each electoral position,” and the declaration of plaintiff Rodriguez stating that the president of the Electoral Committee “never came down off the platform and thus was not able to oversee the voting . . . .” Based on those declarations, plaintiffs argue the Electoral Committee failed to fulfill its role in presiding over the election.
Misael Zaragoza, the president of the Electoral Committee, provided a declaration stating that the computer used to tabulate the results of the voting was “in plain sight to the entire assembly.” His declaration described the process by which the voting was conducted. We conclude that plaintiffs’ declarations fail to establish the Electoral Committee failed to properly supervise the election.
2. Delivery of Results of the Election
Plaintiffs argue that “[t]he results of the elections were not delivered to the then incumbent General Board and especially to the Bishop General Secretary. [Plaintiff] Salomon, the presiding General Secretary, specifically asked for the documentation evidencing the election results but was turned down.”
The powers and duties of the General Board and General Secretary are set forth in articles 20 and 10, respectively, of the Church constitution. However, plaintiffs have not identified any provision of the constitution, and we have discovered no provision in our de novo review, which establishes a requirement that election results or documentation be delivered to the incumbent General Board or General Secretary. Thus, plaintiffs have failed to establish any election irregularity on the basis asserted.
3. Voting by Computer
Plaintiffs argue that voting by touch pad computers and tallying the votes by the computer’s server did not constitute tallying the votes by the Electoral Committee. The trial court found to the contrary, stating that the use of computers for voting and tallying the results was the functional equivalent of a “writing.” We agree. Evidence Code section 250 defines a “writing” in the broadest possible terms as “handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” Thus, we conclude the use of computers for voting and tallying the results was consistent with the requirements of the Church constitution.
4. Notarization of Election Documents
Plaintiffs argue that the General Secretary was not allowed to notarize the election documents. Plaintiff Salomon provided a declaration stating, “As the General Secretary of the Church, I was not allowed to fulfill my duties in that I never took control of the election results, never notarized the appropriate election documents and thus, others took control of the documentation evidencing what occurred during the election.”
The duties of the General Secretary are set forth in article 10 of the Church constitution. In our de novo review, we conclude that article does not expressly establish a duty on the part of the General Secretary to take control of election results or notarize election documents, and plaintiffs have not identified any provision of the constitution that so provides. Thus, plaintiffs have failed to establish an election irregularity based on the General Secretary’s failure to complete those actions.
G. Evidentiary Rulings
Plaintiffs contend the trial court erred in sustaining defendants’ objections to certain of plaintiffs’ evidence and in overruling plaintiffs’ objections to certain of defendants’ evidence.
1. Plaintiffs’ declarations
a. Rodriguez’s statement concerning votes
Plaintiff Rodriguez provided a declaration stating that “[b]ased on the number of people present at the 2006 election, the top vote getting candidates would receive approximately 200 votes.” Defendants objected to that portion of Rodriguez’s declaration on the ground that it was speculative and lacked foundation. The trial court sustained the objection.
We find no abuse of discretion in the trial court’s ruling. The statement as to how many votes the top candidates “would receive” was, on its face, merely speculative. Rodriguez’s declaration showed no basis for his knowing how others had voted or even how many total candidates received votes in the initial election. As plaintiffs concede, no evidence was presented concerning the number of ministers in attendance or the total number of votes cast. In their reply brief, plaintiffs expand their argument by listing the six categories of persons entitled to vote. Merely listing the categories, however, provides no information about how many persons were in each category.
Moreover, plaintiffs were required to show not only that the exclusion of evidence was error, but also that the error was prejudicial. (Evid. Code, § 353; Mize v. Atchison, T. & S.F. Ry. Co. (1975) 46 Cal.App.3d 436, 450.) Plaintiffs have asserted that the excluded evidence would have supported their argument that “only those candidates ‘who received a greater number of votes’” should even have been considered as potential candidates. However, because we have rejected the underlying premise, that the constitution required only the top vote-getting candidates to be considered, the evidence was irrelevant.
b. Rodriguez’s statement concerning objection
Rodriguez’s declaration further stated, “I heard of a pastor that attempted to object to Joel M. Montes as a candidate, but was not allowed in the room to file his objection. Thus, myself and a number of others decided not to attempt to file objections.” Defendants objected to that portion of Rodriguez’s declaration on the ground of hearsay. The trial court sustained the objection.
Even if we accept, for purposes of argument, that at least a portion of the statement was admissible for a nonhearsay purpose—to show the declarant’s state of mind and the basis for his actions or inaction—plaintiffs have completely failed to explain how the exclusion of the evidence was prejudicial. (Evid. Code, § 353.) We therefore find no prejudicial error in the exclusion of that evidence.
2. Defendants’ Declarations
a. Del Campo’s statement
Defendant del Campo provided a declaration stating that an Election Commission had found that everything done by the Electoral Committee, the Qualifying Committee, and everyone else connected with the election had been done properly and in accordance with the Church constitution. Plaintiffs objected to portions of the del Campo declaration on the ground of hearsay, but the trial court overruled the objection.
Even if we assume for purposes of argument that admission of the statements was error, plaintiffs have failed to show how such error might have been prejudicial. (Evid. Code, § 353.) It appears the trial court relied on the challenged portions of del Campo’s declaration primarily for the determination that plaintiffs had exhausted their administrative remedies—the trial court noted that “[b]y defendants’ own admission, the board conducted an investigation of the 2006 election and concluded there were no irregularities. Additionally, it is fairly clear that the [plaintiffs] have made their claims amply known to defendants but have been rebuffed in their efforts.”
Thus, any error in the admission of the challenged evidence was not prejudicial.
b. Sanchez’s statement
Defendant Sanchez, the Bishop president of the Church, provided a declaration stating in paragraph 20 that “[t]he 2006 Election Commission found, after concluding their investigation, that the 2006 National Electoral Convention of the APOSTOLIC ASSEMPLY was conducted in compliance and accordance with the requirements of the APOSTOLIC ASSEMBLY Constitution and the C.I.D. Document.” Plaintiffs objected to that portion of the Sanchez declaration on the ground the assertion was not within the personal knowledge of the declarant. The trial court overruled the objection.
Sanchez stated in his declaration that he “could and would competently testify to the following facts based upon [his] own personal knowledge.” The trial court was entitled to accept Sanchez’s assertion of personal knowledge, and it does not strain credulity to presume the Bishop president of the Church was aware of the actions taken and findings made by the Election Commission. (See Hill v. State Farm Mutual Automobile Ins. Co. (2008) 166 Cal.App.4th 1438, 1490 [“‘Generally, knowledge of corporate records and documents is imputed to all directors’”]; Islas v. D & G Manufacturing Co., Inc. (2004) 120 Cal.App.4th 571, 577 [trial court determines preliminary facts regarding the personal knowledge of a witness]; People v. Tatum (2003) 108 Cal.App.4th 288, 298 [we review trial court’s determination of personal knowledge under abuse of discretion standard].) We find no abuse of discretion in the trial court’s overruling plaintiffs’ objection to paragraph 20 of Sanchez’s declaration.
IV. DISPOSITION
The judgment is affirmed. Costs shall be awarded to respondents.
We concur: MCKINSTER J., KING J.
“(c) 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.”
“I. The General Board of Directors, or a committee named by the board, will prepare the program for the General Electoral Convention: stating the date, time and place of elections. This information will be made known to the church in general with adequate time prior to the elections.
“II. A day prior to the elections, the General Board of Directors will appoint an Electoral Committee, comprised of five or seven qualified ministerial members, which will preside over the elections during the entire period of time that the election of the General Board of Directors may require. It will deliver the results of the election to the incumbent General Board of Directors, which then will proceed to carry on the work of the convention that remains to be done. [¶] . . . [¶]
“VI. The selection of candidates for the eight positions of the General Board of Directors will be done by secret ballot. The General Board Members shall serve a maximum of eight years in the same position.
“VII. To make the selection for each position, the ministry in attendance will write on the secret ballot the name of one candidate.
“VIII. The Electoral Committee will gather all the ballots, tally them and present the results to the Qualifying Committee.
“IX. The names of the ministers that were approved as candidates will be made known by the Electoral Committee to the electoral assembly.
“X. The President of the Electoral Committee will present the candidates to the electoral assembly and then there will be a prayer for the candidates.
“XI. And then, each voting minister will write, in the corresponding ballot, the name of the candidate of his choice.
“XII. The Electoral Committee will tally the votes and announce the results to the electoral assembly, and present the elected candidate.
“I. A day before the elections, the General Board of Directors in full, will name a Qualifying Committee, that will be comprised of three members of the General Board of Directors and two district bishops, which will be responsible for carrying out the work described as follows:
“II. The Qualifying Committee shall consider those ministers, who have received a greater number of votes as to their capabilities, qualities, and their rights, and shall approve two to five of them as candidates. From these, the assembly of pastors shall select, through their vote, until one of them is elected by a simple majority and if there are no constitutional objections.
“III. Whenever one of the nominees receives two thirds or more of the votes cast, which in this case constitutes an overwhelming majority, and is approved by the Qualifying Committee, that body shall notify the Electoral Committee so that the candidate can be declared elected to the position to which he was nominated. These decisions shall always be made in accordance with the criterion set forth by this Constitution.
“IV. If the Qualifying Committee determines that the persons nominated do not meet the qualifications of the present Constitution, or lack the capabilities, qualities or the right to be presented as nominees, the Committee shall order a new selection.
“V. After the candidates have been announced and before they are presented in prayer, if there are any objections against any one of them, the elections will be suspended until the objector presents his objection privately before the Qualifying Committee. The objection must be credible and evidence must be provided in order for the Qualifying Committee to suspend the election of a candidate. Should this occur, the Qualifying Committee can select another candidate, next in line, with the majority votes and who fulfills all the requirements, or order that a new election be held. No objections nor [sic] discussion will be presented before the assembly.”