Opinion
A153873
05-29-2020
WILLIAM CAMPISI, JR., Plaintiff and Appellant, v. PACIFICA FOUNDATION, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG18890224)
"Upon the filing of an action . . . by any director or member, or by any person who had the right to vote in the election at issue, the superior court . . . shall determine the validity of any election . . . of any director of any corporation." (Corp. Code, § 5617, subd. (a).) "The court, . . . in conformity with the articles and bylaws . . . may determine the person entitled to the office . . . ." (Id., subd. (d).)
Plaintiff William Campisi, Jr. filed such an action. The trial court rejected his election challenge, and he appeals. Although our analysis differs in some respects, we agree with the trial court's ultimate conclusion and consequently affirm its decision.
BACKGROUND
Defendant Pacifica Foundation, Inc. (Pacifica) "is a California non-profit corporation that owns and operates public radio stations across the country." (Brown v. Pacifica Foundation, Inc. (2019) 34 Cal.App.5th 915, 918.) It is governed by a lengthy document entitled "Amended and Restated Bylaws of Pacifica Foundation" (the Bylaws).
"Pacifica has two classes of members: listener-sponsor members, who make at least minimum contributions to a radio station in their area, either through volunteer work or financial support; and staff members, who are employed in paid or unpaid positions at one of five Pacifica radio stations. All members hold voting rights through their affiliation with a radio station. Local station members separately elect Delegates [Delegate] to represent them, and the duties of those Delegates include electing Directors to represent each radio station area on Pacifica's National Board [the Board]. Pacifica's Bylaws call for a 22- or 23-member Board of Directors. A Delegate who has served as a Delegate for at least one year is eligible for election to the office of Director for his or her radio station area, while non-Delegate members may run for positions as an 'affiliate' or 'at large' Director." (Brown v. Pacifica Foundation, Inc., supra, 34 Cal.App.5th at p. 919.)
Plaintiff is a member of the State Bar of California and, in his words, "an elected Delegate of the KPFA Delegate Assembly," KFPA being one of the five radio stations owned by Pacifica, and one of two in California. Plaintiff paints a picture of Pacifica as being riven by "a severe financial and organizational crisis" that has lasted several years and has splintered the Board into factions. According to plaintiff, the crisis stems from the fact that three of Pacifica's five radio stations are run at a loss, the loss-making stations elect a majority of the Board and they effectively compel the two profitable stations (one of which is KPFA) to subsidize them. One faction of the Board believes Pacifica should seek bankruptcy protection, while the other believes it should instead borrow money. However interesting this background information may be, it does not shed light on the specific issues raised in this litigation.
The facts that pertain directly to this controversy are not in dispute. According to plaintiff, whose narrative is not disputed by Pacifica, what happened at the January 6, 2018 election was that Ms. da Silva was "elected" to fill a Delegate vacancy with the plan that she would then seek election to the Board. There was an objection to da Silva running for the Board seat by one Delegate, who pointed out that da Silva was not eligible to be elected to the Board because she had not been a Delegate at the time she was nominated to serve as a Director, as required by Article 5, section 3(A) of the Bylaws. (That section permits current Delegates to nominate other current Delegates who have served as such for at least one year and requires nominations to take place by the December 31 preceding each January election.) Realizing the objector had a valid point, plaintiff and some of his fellow KPFA Delegates devised an alternate plan to get Ms. da Silva on the Board without regard to the eligibility issue.
The plan entailed redoing the election and running a slate that included a Delegate running for the Board in place of Ms. da Silva; having that placeholder candidate, once elected, immediately resign; and then conducting a replacement election pursuant to Article 5, section 8 of the Bylaws, which provides an election process to fill vacancies on the Board, and elect da Silva to fill the "vacancy" left by the placeholder candidate. Pursuant to this plan, on the same date (January 6, 2018), the KPFA Delegates held another election in which plaintiff ran as the placeholder for da Silva, along with three other candidates, for the three open positions on the Board. In this "redo" election, plaintiff and two others were elected to the Board, plaintiff then resigned, and the Delegates held a third election to replace plaintiff. Ms. da Silva and Tom Voorhees then ran for the open Board position. Ms. da Silva received 15 votes, and Mr. Voorhees received four.
Twelve days later, on January 18, 2018, the Board got involved, adopting a resolution that in essence rejected the election of da Silva as a Delegate, apparently concluding that the method for filling a mid-term vacancy of a Delegate specified in the Bylaws [Article Four, section 10] had not been followed. It also treated plaintiff's resignation after his election to the Board as not creating a new vacancy on the Board because he had not yet been seated as a Director at the time he resigned. Rather, he was declining to serve in the position he had just been elected to, Director-elect, "for which a Director replacement election per [Article 5, Section 8 of the Bylaws] would be out of order." The Board therefore resolved that the redo election undertaken by KPFA on January 6, 2018, purporting to elect da Silva to the Board to replace plaintiff was "not in order and the third KPFA Listener Director-elect position goes to the fourth place nominee in [the first Director election], Tom Voorhees who shall be seated on the 2018 [Board] on January 25, 2018."
Article Four, section 10 provides that to fill a Delegate position that becomes vacant mid-term, "that Delegate shall be replaced for the remainder of his/her term by the highest ranked candidate from the last election of Delegates for that Class of Members for that station who was not elected and who is available and continues to meet the Delegate eligibility requirements [set forth in the Bylaws]." If no such eligible and available candidate is found, Delegates are permitted to appoint a member to fill the Delegate seat for the remainder of the vacating Delegate's term.
Plaintiff filed his "Petition For . . . Injunctive And Declaratory Relief" with several objects in mind, all dealing with the Delegate and Director elections of December 2016. During the course of proceedings in the trial court, the contested issues were apparently reduced to two—whether da Silva was properly elected to a Delegate position, and who was entitled to replace plaintiff when he resigned as a Director-elect. On January 18, 2018, the Board adopted a motion directing KFPA's Local Station Board (LSB) to seat Tom Voorhees as plaintiff's replacement. Believing the position should go only to someone elected by the KPFA Delegates, plaintiff commenced this action on January 23, alleging the Board's action "interfered with the right . . . ¶] of the KPFA Assembly of Delegates to elect Directors of the . . . Board."
Plaintiff admitted to the court that on the same day, "I was elected as a placeholder candidate, and I resigned" in order to force a new election, which he conceded was "a technical way of getting around the bylaws" and electing Susan da Silva to the Board.
The resolution read in relevant part: "Resolved that the [Board] does not recognize the process used on Saturday, January 6, 2018 for appointing Susan da Silva to a KPFA Listener Delegate seat vacated by Yuri Gottesman and considers the seat vacant. . . . [¶] Furthermore, given that KPFA has four current Directors on the [Board] until January 25, 2018 when the 2018 [Board] is seated, and given that all Delegates who were elected in the KPFA Directors election on January 6, 2018 are actually Directors-elect and become full-fledged Directors on January 25, 2018 when they are seated, when Bill Campisi 'resigned' immediately following the announcement of the results of the Listener Directors election he was not actually resigning as a Director for which Article 5, Section 8 of the bylaws would apply but rather he was declining to serve in the position he had just been elected to, Director-elect, and for which a Director replacement election per [Article 5, Section 8 of the Bylaws] would be out of order. In addition, a . . . replacement election for a Director-elect does not exist in the bylaws. Therefore, be it resolved that the . . . election held on January 6, 2018 stands, a redo of that . . . election is not in order, and the third KPFA Listener-Director position goes to the fourth place nominee in that election, Tom Voorhees, who shall be seated on the . . . 2018 [Board] on January 25, 2018."
Meanwhile, in plaintiff's words: "On January 27, 2018, pursuant to notice, the KPFA Delegates held an assembly and re-opened the election for the position of Director" that by then da Silva had purportedly vacated because she had determined she was ineligible to be elected as a Director because she had not served as a Delegate for the one-year period required by the Bylaws. There were two nominees for the Director position, Aki Tanaka and Tom Voorhees. "Aki Tanaka [received] 13 first place votes. Mr. Voorhees received 1 first place vote."
The matter was submitted for decision in connection with plaintiff's motion for "preliminary and permanent injunctive relief and for declaratory relief." On March 6, barely six weeks after plaintiff filed his petition, the court filed a short order explaining its reasons for ruling against plaintiff. With certain minor, non-substantive modifications we have added, the order reads as follows:
"The court finds that the 1/18/18 Motion was valid to the extent it nullified the election of Susan da Silva as a Delegate, and that the National Board's instruction to KPFA's LSB [local station board] to contact candidates on the recount runners up list was valid. (Bylaws, Article 4, Section 10.)
"Petitioner requests a finding that the Director election of Ms. da Silva was valid. This request is moot because the parties agree that Ms. da Silva did not ultimately meet the requirements for Director eligibility under Article 5, Section 3(A).
"The court finds that the Board's 1/18/18 Motion ordering the KFPA LSB to seat Mr. Voorhees as a Director was valid under the Bylaws.
"Article 5, Section 3(C) plainly states that the term of the newly elected Directors 'shall commence' when the Directors are seated 'at the Meeting of the Board of Directors held in late January each year.' When Plaintiff resigned, he had not yet been seated according to the Bylaws, thus his term had not yet commenced, and he was not yet functioning as a Director. Accordingly, his resignation functioned as a withdrawal of his elected position, and the 1/18/18 motion ordering the 'fourth' Director position to go to Mr. Voorhees complied with Article 5, Section 3(B) of the Bylaws. (See also, Bylaws, Article 7, Section 4.)
"ELECTION. [¶] The Delegates for each radio station shall meet annually in early January to elect four Directors to represent that radio station on the Board. The Delegates of both classes of Members, voting together, shall elect three Listener-Sponsor Directors using the Single Transferable Voting method, and shall elect one Staff Director using the Instant Runoff method, to represent that radio station on the Board. The Staff Director must be a Staff Delegate. The Listener-Sponsor Directors must be Listener-Sponsor Delegates." (Bylaws, art. 5, § 3(B).)
"OTHER LOCAL STATION BOARD POWERS AND AUTHORITY. By resolution, the Foundation's Board of Directors may delegate any other corporate powers it deems appropriate to an LSB with regard to that specific radio station. Any such power delegated to an LSB is subject to revocation at any time by the Board of Directors. Any and all actions, resolutions and policies taken or adopted by an LSB may be overridden by a majority vote of the Directors if said action, resolution or policy is found by the Board of Directors to be adverse to the mission and/or charitable or business purposes of the Foundation, to exceed the power or authority granted to said LSB or to be inconsistent with these Bylaws, the Articles or applicable laws and regulations." (Bylaws, art. 7, § 4.)
"According to Plaintiff's Supplemental Brief, after learning of Ms. da Silva's ineligibility, the KPFA LSB Delegates held a new election on 1/27/18 to fill the Director vacancy. Mr. Voorhees and Ali Tanaka were the sole candidates. Mr. Tanaka received 13 first-place votes and Mr. Voorhees only received 1 first-place vote. Plaintiff requests a finding that the 1/27/18 election of Mr. Tanaka as the fourth 'listener' Director was valid. Plaintiff presents briefing, but no evidence, on this issue.
"In light of the above ruling that the 1/18/18 Motion was valid to the extent it ordered the remaining 'listener' Director position go to Mr. Voorhees, Plaintiff's request that the court approve the 1/27/18 election of Mr. Tanaka is DENIED.
"The court finds that the 1/6/18 election of Plaintiff as one of the three 'listener' Directors to be seated at the subsequent January 2018 Meeting pursuant to Article 5, Section 3(C), was valid."
Plaintiff then perfected this timely appealable from that appealable order.
DISCUSSION
Plaintiff has filed a lengthy brief that reflects his obvious passion for the subject. According to plaintiff, the Bylaws gave "all right, power and authority to the members, through their elected Delegates," to elect both Directors and Delegates; correspondingly, the Bylaws gave the Board "no right, power or authority to interfere in any manner" with any election of either Delegates or Directors. (Italics added.)
The succinct caption in plaintiff's opening brief frames his prime contention: "The Bylaws Give the Members the Exclusive Right, Power and Authority to Elect Delegates, and Through Their Delegates, Elect Directors," with the sub-caption "Robert's Rules of Order Are Made Applicable to Pacifica by Article Sixteen of the Bylaws. Robert's Rule § 46 Bars Intervention by a Board of Directors in Members' Elections in the Absence of a Specific Bylaw Giving the Directors Such Powers." In the "Issues Presented," the contention is framed as follows: "Did the Bylaws give all rights, power and authority to the KPFA Delegates to conduct elections of Directors and fill mid-term Delegate vacancies in the January 2018 elections such that the [Board] had no right, power or authority to have intervened, in any manner, in those elections?"
A close reading of plaintiff's argument reveals he holds a Jeffersonian interpretation of the Bylaws—only that which is expressly stated is granted, nothing is given by implication. For him, "[t]here is no Bylaw . . . which gives the [Board] specific authority to intervene in Directors' elections." The heart of his argument is based on an incorporation-by-reference in the Bylaws. Article Sixteen of the Bylaws states: "The rules contained in Roberts's Rules of Order Newly Revised, as amended from time to time, shall govern the Foundation in all cases where they are applicable and in which they are not inconsistent with these Bylaws or any special rules of order which the Foundation may adopt." And at the end of section 46 of Robert's Rules (Nominations and Elections) is the following language: "Because the voting body itself is the ultimate judge of election disputes, only that body has the authority to resolve them in the absence of a bylaw or special rule of order that specifically grants another body that authority." (Robert's Rules of Order (11th ed. 2011) § 46, p. 444, italics added.)
To hear plaintiff describe it, the Board's action was a naked power grab. Like the trial court, we do not feel compelled to see it that way.
A word about the standard of our review. Plaintiff says it should be de novo. Pacifica disagrees, saying the substantial evidence rule should govern. We think plaintiff has the better part of the argument. It is true that the order on appeal does recite what appear to be historical facts, which are traditionally examined under the substantial evidence standard. However, the dispositive issue—the one identified by plaintiff—is one of the "right, power and authority" concerning elections under Pacifica's Bylaws. As a writing, with no admitted extrinsic evidence as to the meaning of those Bylaws, we apply de novo review in construing the provisions of that document. (E.g., Concord Christian Center v. Open Bible Standard Churches (2005) 132 Cal.App.4th 1396, 1408; Hard v. California State Employees Assn. (2003) 112 Cal.App.4th 1343, 1347-1348)
Moreover, we have stated: " ' "It is generally accepted that corporate bylaws are to be construed according to the general rules governing the construction of statutes and contracts." [Citation.] Bylaws must " 'be given a reasonable construction and, when reasonably susceptible thereof, they should be given a construction which will sustain their validity . . . .' " ' " (Singh v. Singh (2004) 114 Cal.App.4th 1264, 1294.) Although the interpretation a nonprofit corporation places on its own constitution and by-laws is not binding on us, we will ordinarily defer to " '[t]he practical and reasonable construction of the . . . by-laws . . . by its governing board.' " (Williams v. Inglewood Bd. of Realtors (1963) 219 Cal.App.2d 479, 486, quoting DeMille v. American Fed. of Radio Artists (1947) 31 Cal.2d 139, 147 (DeMille); accord, Berke v. Tri Realtors (1989) 208 Cal.App.3d 463, 469.) "The practical and reasonable construction of the . . . by-laws of a voluntary organization by its governing board is binding on the membership and will be recognized by the courts" (DeMille, at p. 147) unless the challenged action "plainly contravenes the . . . bylaws." (California Dental Assn., supra, 23 Cal.3d at p. 354.)
We note in passing an argument raised by Pacifica in a footnote in its brief and a point raised at the end of its brief. Pacifica argues that plaintiff brought this action on behalf of himself and other KPFA members but he "has provided no authorization that he is authorized to represent anyone but himself." It then states that it "continues to preserve the issue in the Court that Campisi lacks standing to do so." This issue is not developed further and thus requires no comment by us. (See Cal. Rules of Court, rule 8.204(a)(1)(A); Evans v. Cornerstone Development Co. (2005) 134 Cal.App.4th 151, 160.) For similar reasons, we do not address plaintiff's argument that the fact-based issues of waiver and estoppel should be applied against Pacifica; it lacks an adequate discussion of legal authority and fails to cite the record for its assertion that it preserved the argument in the trial court.
Pacifica also invokes at the end of its brief what is known as the "abstention" doctrine, which permits courts to decline to intervene in disputes involving " 'the rights and duties of the members as between themselves and in their relation to [a private voluntary] association, in all matters affecting its internal government and the management of its affairs . . . .' " (California Dental Assn. v. American Dental Assn. (1979) 23 Cal.3d 346, 353 (California Dental Assn.).) However, "if the [challenged] action 'plainly contravenes the [association's] bylaws . . . and if the burden on the courts and on the interest of the [association] in its autonomy do not outweigh the [member's] interests, it is appropriate for the courts to exercise jurisdiction.' " (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 644, quoting California Dental Assn., at p. 354.) We view this doctrine as one and the same as the deferential standard discussed in the text, under which courts determine whether a challenged interpretation is practical and reasonable, and if so, defer to it.
I.
The Board's Interpretation of the Bylaws to Allow It to Oversee
Director Elections Is Reasonable and Therefore Binding on the
Membership.
Plaintiff first contends that the Bylaws provide for elections supervisors and by doing so strip the Board of "any role in . . . elections procedures" for elections of Delegates. Further, plaintiff frames the primary issue as whether "the Bylaws give all rights, power and authority to the KPFA Delegates to conduct elections of Directors and fill mid-term Delegate vacancies in the January 2018 elections such that the [Board] had no right, power or authority to have intervened, in any manner, in those elections[.]" In using the phrases "elections procedures" and "to conduct elections," plaintiff implies that the actual mechanics, the nuts and bolts, of an election are entrusted exclusively to Members (in the case of Delegate elections) and to "the KPFA Delegates" (in the case of Director elections). These implications are easily disproven with a quick look at the Bylaws.
Article Three addresses "Members of the Foundation." Section 8 (E) of Article Three provides: "Consistent with the provisions of Article 4 of these Bylaws, the Members' elections of Delegates shall be supervised by a national elections supervisor and local elections supervisors and all said ballots shall be counted under their supervision at such place or places designated by the national elections supervisor. All other voting by Members shall be supervised by the Board of Directors, or the Board's designated agent, which shall also be responsible for ensuring and monitoring compliance with its voting procedures and processes and for counting ballots consistent with these Bylaws."
Article Four of the Bylaws is entitled "Delegates." Article Four, Section 4 has two parts. Part A, as permitted by state law (see Corp. Code, § 7614), specifies that, prior to every election, Pacifica's Executive Director "shall appoint a national elections supervisor whose role shall be to oversee and certify the fairness of the Delegates elections in each station area and to confirm said elections' compliance with these Bylaws." Moreover, "[t]he national elections supervisor shall also oversee the nominations process, the preparation of the ballots and the counting of the ballots and shall prepare a written statement reporting the results of every election for distribution to the Members." When this is done, "the national elections supervisor's term shall end."
Part B begins: "In preparation for an election of Delegates, the National Elections Supervisor shall appoint, subject to approval of the Executive Director, a local election supervisor for each . . . radio station area," who shall "coordinate the elections of the Delegates for the radio station area . . . to ensure a fair election in compliance with the terms of these Bylaws." The local election supervisor's "duties shall include preparing a nomination petition form for use by all potential nominees, reviewing each potential candidate's nomination papers for eligibility and completeness, overseeing the preparation and distribution of the election ballot, closing the election, and counting and assisting the ballot counting." A local election supervisor may appoint "volunteer Members" to assist. Like the national supervisor, "[u]pon the completion of, and certification of the results for, the elections s/he supervised, each local elections supervisor's term shall end."
Thus, it is inaccurate for plaintiff to insinuate that the membership of each "radio station area" constitutes a completely independent assembly with respect to the "conduct" of Delegate elections. The Bylaws make it clear, and in detail, just how much of the conducting is entrusted to election supervisors. Specifically, Article 4, sections 3 through 6, make plain that Delegate nominations and elections are supervised by national and local elections supervisors, appointed by the Executive Director of the Foundation and the national elections supervisor, respectively. Plaintiff admits as much at various points in his brief.
Plaintiff argues that "a fair reading of the Bylaws gives rise to the conclusion that . . . elections are under the exclusive control of the Members through the appointed [election supervisor]." Again, if plaintiff means to convey that the members are completely free agents, the Bylaws say otherwise. Insofar as plaintiff's argument is that the Bylaws providing for elections supervisors are somehow exclusive and effectively prevent the Board from having any involvement in elections, we disagree. There is no inherent inconsistency between the Foundation employing a neutral to monitor nominations and elections and at the same time having its Board retain ultimate authority to determine whether such elections are consistent with the organization's Bylaws.
Further, Pacifica describes provisions of the Bylaws that, in its words, "establish a hierarchical relationship between the National Board and Delegates of the Local Station Boards,"--provisions conferring on the Board authority to delegate responsibility to local station boards (Bylaws, art. 7, § 1), to override actions taken by the local boards if found to exceed the authority granted to them by (among other things) the Bylaws (id., art. 7, § 4), to provide direction over the activities and affairs of the Foundation (id., art. 5, § 1 (D)), and to "Oversee[] the conduct, management and control of the Foundation's affairs and activities, including monitoring of the activities and actions of its radio stations . . . consistent with applicable law and regulations, the Articles of Incorporation and these Bylaws" (id., art., 5, § 1 (E)). Pacifica contends that granting the relief plaintiff seeks "would reverse the hierarchy of the relationship that the bylaws establish between the Local Station Board and the Pacifica National Board."
We agree that the Bylaws confer broad general authority on the Board to oversee the activities of the local boards and radio stations. In light of this authority, it is not unreasonable for Pacifica to interpret its Bylaws regarding Delegate elections to retain in the Board the ultimate authority to determine whether such elections have been conducted in a manner consistent with the Bylaws. The use of local and national elections supervisors to oversee elections supplements, but need not be interpreted as supplanting, the Board's overarching authority over Delegate elections.
As to Director elections, the issue is even more straightforward. Director elections are not expressly made subject to Article Four and its requirement of elections supervisors. Rather, Article Five, entitled "Board of Directors of the Foundation," governs election of Directors. Whereas Article 4, sections 3 through 6, make plain that Delegate elections are overseen by national and local elections supervisors, nothing in Article 5 suggests such supervisors must be involved elections of Directors to the Board. Article 5, section 3 (B), which expressly addresses such elections, makes no reference to elections supervisors. Thus, plaintiff's argument that there is a conflict between the provisions that discuss elections supervisors and the Board's retention of authority over elections has even less force with respect to Director elections than it has with regard to Delegate elections.
II.
The Board's Interpretation of the Bylaws to Disallow Plaintiff's
Efforts to Ignore the Runners Up and Instead Elect da Silva As a
Delegate and to Then Elect Her to the Board Despite Her Ineligibility
Was Reasonable.
Plaintiff characterizes the trial court's decision as validating the Board "intervening" in elections, exercising "plenary powers over all elections," and exerting "control" of elections. The height of plaintiff's hyperbole is reached in his statement that, "The trial court's interpretation of the Bylaws results in nothing less than making Pacifica an organization which is governed by self-perpetuating Directors because the Directors, under the trial court's reading of the Bylaws, have the power to intervene in the elections in any manner they choose . . . ." There is nothing in the Board's interpretation of its Bylaws in this case that indicates any such far-reaching or nefarious exertion of control here. If anything, it is the plaintiff, not the Board, who sought to circumvent the Bylaws apparently for political purposes.
A. The Attempt to Elect da Silva As a Replacement Delegate
The Bylaws provide for the "Filling of Vacancies" for Delegates (Bylaws, art. 4, § 10). If a delegate position becomes available mid-term, which apparently occurred here, the Bylaws require the vacating Delegate "be replaced for the remainder of his/her term" with "the highest ranked candidate from the last election of Delegates for that Class of Members for that station who was not elected and who is available and continues to meet the Delegate eligibility requirements." Only if no such eligible and available candidate from the last election can be found may the Delegates for that station appoint some other member to fill the seat. Pacifica submitted evidence that in purporting to appoint da Silva as a delegate at the January 6, 1018 meeting, plaintiff and the other KPFA delegates did not comply with this Bylaw. Specifically, da Silva was not among the runner up unelected candidates from the prior Delegate election, and "when the agenda item to appoint a replacement Delegate came to the floor, although there were some objections that the recount list [of runners up] was not being used and there had been no process for appointing someone, Delegate Carol Wolfley proceeded to nominate Ms. da Silva for the seat, asked for other nominees, there were none and Ms. da Silva was seated."
Plaintiff responds by attacking the process used for the "recount" of the 2016 election and the list of those who ran in that election but were not elected. He made a similar argument below that the trial court plainly rejected. To a large extent, this is a factual dispute about whether plaintiff and the other Delegates at the January 6, 2018 meeting made any attempt to comply with Article 4, section 10 of the Bylaws, whether the recount list was the appropriate list of 2016 runners up and whether there were individuals on the 2016 recount list who could have been appointed. Our review of such factual matters is governed by the substantial evidence standard. In the absence of any statement of decision or, as far as the record reflects, any request for one, we imply the trial court made findings favorable to the Foundation on all issues necessary to support the judgment and review both its express and implied findings under the substantial evidence standard. (See Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58-59.) Further, substantial evidence supports the trial court's implied findings that plaintiff and Delegates who attempted to elect da Silva as a replacement Delegate did not attempt to comply with Article 4, section 10, that the 2016 runners up list was an accurate list of the runners up for the 2016 election, that da Silva was not on that list, and that there were potentially available candidates on that list whom plaintiff and the other Delegates made no attempt to contact.
To the extent plaintiff argues that requiring write-in candidates who were runners up to be considered was not legitimate, his argument fails. Pacifica submitted a declaration explaining the longstanding and consistent use (including by KPFA) of write-in voting in Delegate elections; the consistent tallying by contractors and reporting by elections supervisors of all runners up, including write-in candidates; the failure of the 2016 national elections supervisor to include the write-in candidates in the runners up list; and the purpose of the "recount" of the results of the 2016 election in 2017 of rectifying that deficiency. Plaintiff's characterization of the recount as a "gross and audacious manipulation" of the 2016 election process is hyperbole that fails to counter Pacifica's showing on the point. His arguments that the recount violated the Bylaws is largely a reprise of the argument we have already rejected to the effect that the Board can play no role in overseeing elections. To the extent plaintiff argues that write-in candidates should not be included as runners up in filling a vacancy, his argument presents one interpretation of the Bylaws but does not establish that the contrary, apparently longstanding, interpretation by the Board is unreasonable.
B. The Attempts to Fill the Board Vacancy
The Bylaws provide for the "Filling Vacancies" for Directors (Bylaws, art. 5, § 8), but they do not expressly provide for what happened here—the election of a person who immediately resigns prior to being officially installed as a local Director.
The Bylaws specify that nominations for Directors "shall be given in writing to the Recording Secretary for the [local] radio station . . .by December 31 prior to the election of Directors in January." (Bylaws, art. 5, § 3(A).) It is unclear if there were four or five nominations. Plaintiff alleged in his verified petition that there were four, so we use that figure. Plaintiff alleged: "There were three positions to be filled and four candidates: Carol Travis, William Campisi, Jr., Chris Cory, and Tom Voorhees. STV [single transferrable voting] was used to elect the Directors. Carol Travis, William Campisi, Jr., and Chris Cory were elected. Tom Voorhees finished fourth." Plaintiff (Campisi) then promptly resigned the same day as he was elected. He and some other Delegates then immediately nominated da Silva and invoked Article Five, section 8 of the Bylaws to fill the vacancy "on the board." They then voted to elect da Silva and she was, according to plaintiff, elected.
The Board rejected the use of the Board Vacancy Filling procedure set forth in Article Five, section 8 because, in its view, plaintiff's resignation did not create a new vacancy on the Board. This was so because plaintiff had not yet been seated as a Director when he resigned. According to the Bylaws, new station representative Directors are seated after they are elected, at the meeting of the Board in late January, and that is when their terms commence. (Bylaws, art. 5, § 3 (C)) As the Board saw it, plaintiff had declined to serve in the position he had just been elected to, Director-elect, but his resignation had not created a vacancy on the Board because his term as a member of the Board had not yet commenced. Plaintiff disagreed, but after the purported election of da Silva, he and other Delegates discovered that da Silva did not meet the eligibility requirements for a Director because she had not served as a KPFA delegate under the Bylaws. The trial court thus did not rule on the issue, concluding it was moot. Plaintiff does not argue the trial court erred in this respect, and we therefore have no occasion to address the issue.
The "redo" election held on January 27, 2018, was not in compliance with the Bylaws because Aki Tanaka had not been nominated by December 31. It was presumably for this reason that the Board treated it as a nullity under Article 7, section 4 (quoted at fn. 3, page 5, ante). Once plaintiff removed himself from the election by "resigning," the only remaining declared candidate was Tom Voorhees. Rather than conduct an entirely new election before the next annual election—a possibility also unaddressed in the Bylaws—it was an obvious move for the Board to declare the last person standing elected. As such, it qualifies as a "practical and reasonable construction" of the Bylaws. (DeMille, supra, 31 Cal.2d at p. 147.) Moreover, because it was not explicitly forbidden by them, the Board's action did not "plainly contravene[] . . . the bylaws." (California Dental Assn., supra, 23 Cal.3d at p. 354.) We conclude the trial court properly denied plaintiff's petition. (Berke v. Tri Realtors, supra, 208 Cal.App.3d at p. 469; Williams v. Inglewood Bd. of Realtors, supra, 219 Cal.App.2d at p. 486.)
Finally, unlike plaintiff, we cannot view any possible incorporation of Robert's Rules of Order as a grant of substantive power. We have examined section 46 of Robert's Rules, and it is what one would expect—an exhaustive nuts-and-bolts examination of various procedures. There is nothing in the excerpt upon which plaintiff relies, and which was quoted earlier, that has the potency to displace the procedures specified in the Bylaws as reasonably interpreted by the Board.
DISPOSITION
The order is affirmed. Respondent shall recover its costs on appeal.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.