Opinion
B194519
4-28-2008
KOREAN PHILADELPHIA PRESBYTERIAN CHURCH et al., Plaintiffs and Appellants, v. CALIFORNIA PRESBYTERY et al., Defendants and Respondents.
McGuinness & Associates, Joseph G. McGuinness, and Jeffrey S. Flashman for Plaintiffs and Appellants. Calabro Law Offices, Alfred A. Calabro, and Elizabeth A. Nazarian; and Silvio Nardoni for Defendants and Respondents.
NOT TO BE PUBLISHED
This is the third appeal in these consolidated and related actions. Pursuant to our instructions in the previous appeal (Korean Philadelphia Presbyterian Church v. California Presbytery (Sept. 10, 2003, B151945, B158402) [nonpub. opn.] (KPPC II)), the trial court conducted further proceedings after remand and entered judgment on August 17, 2006. We affirm that judgment.
BACKGROUND
This litigation involves a dispute between two or more competing factions that purport to be the true Korean Philadelphia Presbyterian Church (the Church). The Churchs true identity has been disputed since at least May 1999, when the lead action was filed. (Korean Philadelphia Presbyterian Church v. California Presbytery (Super. Ct. L.A. County, No. BC210151) (the lead action).) Before discussing the present appeal, we will review some of the relevant history, which was more fully described in Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069 (KPPC I) and KPPC II.
In July 1998, James Cho succeeded Chun Cho as pastor of the Church. In late 1998, a dispute arose when Chun Cho claimed the Church owed him money. Chun Cho took the dispute to the California Presbytery (Presbytery), a local body of churches belonging to the national denomination of the Korean American Presbyterian Church (KAPC). Presbyterys president asked James Cho to resign as pastor. James Cho, who did not resign, conducted elections in early 1999 in which the Church board and membership voted to disaffiliate from Presbytery. Presbytery then purported to terminate James Cho as pastor and appointed his replacement.
I. The Lead Action and KPPC I
On May 11, 1999, James Cho filed the lead action, in his own name and that of the Church, seeking injunctive and declaratory relief against Presbytery and Edmund Lee, a Presbytery employee (No. BC210151). In the lead action, James Cho sought to invalidate his purported dismissal by Presbytery, on the ground that he could not be terminated by Presbytery after the Church board and congregation had voted to disaffiliate from Presbytery. (KPPC I, supra, 77 Cal.App.4th at pp. 1072-1074.)
Presbytery and Lee cross-complained for declaratory and injunctive relief, disputing James Chos right to represent the Church in the lead action. The cross-complaint alleged that a second Church board, whose members were appointed by Chun Cho, had voted to terminate James Cho as pastor and ban him from Church property. Although the cross-complaint also sought damages for negligence, assault, battery, conversion, fraud, misrepresentation, and concealment, those claims were later dismissed.
The trial court (Judge Robert H. OBrien) granted James Cho a temporary restraining order and preliminary injunction that, among other things, precluded Presbytery and Lee from entering Church property for improper purposes or interfering with its worship services and other functions. Presbytery and Lee, having failed to obtain injunctive relief against James Cho, appealed from the preliminary injunction in KPPC I.
In KPPC I, we reversed the preliminary injunction for James Cho as overbroad. (KPPC I, supra, 77 Cal.App.4th at pp. 1083-1085.) Although the parties in KPPC I sought to resolve other issues, such as whether the Church had disaffiliated from Presbytery before James Cho was terminated by Presbytery, we concluded that those issues were not properly before us. (Id. at pp. 1085-1089.)
II. The Consolidated Actions
On June 9, 2000, while KPPC I was pending, the trial court consolidated the lead action (No. BC210151) with cases filed by Chun Cho (No. BC210353) and KAPC (No. BC226204).
In case No. BC210353, Chun Cho, in his name and that of the Church, sued James Cho on May 14, 1999. Chun Cho, who purported to represent the Church as a member of the second Church board, "sought to establish that the `true board of directors for the Church (those appointed by Chun Cho) had met and terminated James Cho as pastor and president on May 13, 1999, and that [James Cho] was engaging in ultra vires acts and improperly asserting control over the Churchs property." (KPPC II, supra, at p. 9.)
In case No. BC226204, KAPC, in its name and that of Presbytery and General Assembly, sued James Cho on March 9, 2000. KAPC alleged that, as the national hierarchical body over Presbytery and its member churches, the courts must defer to its ecclesiastical authority to determine whether to recognize the Churchs purported disaffiliation, and whether to allow James Cho to remain as pastor of the Church. In its breach of contract claim, KAPC alleged that the Church had violated the Book of Church Order establishing KAPC as the hierarchical body over the Church. In its declaratory relief claim, KAPC sought to determine that the Church board members appointed by Chun Cho had terminated James Cho as pastor of the Church.
According to KAPCs complaint, "KAPC is an entity possessing ultimate authority, decision making powers and management control over the California Presbytery and all church members of that California Presbytery entity."
III. Judgment in the Lead and Consolidated Actions
On January 30, 2001, Judge Emilie H. Elias granted the summary adjudication motions brought by Presbytery and Lee as cross-complainants in the lead action (No. BC210151), and by KAPC and Chun Cho as plaintiffs in the consolidated actions (Nos. BC210353, BC226204). The summary adjudication order stated in relevant part: "1. The [KAPC] is a national religious denomination which is governed by its bylaws, known as the `Book of Church Order. [¶] 2. The decision involving the installation and removal of a senior pastor of KPPC, which is a member of the KAPC, is an ecclesiastical issue and the First Amendment of the U.S. Constitution prohibits the civil court from interfering with such decision. [¶] 3. Pursuant to stipulation of counsel in open court on January 29, 2001, the court finds that there is no dispute over the ownership of the subject church property in that there is a deed that reflects ownership of the property by KPPC. This finding is without prejudice to either party instigating litigation to having a judicial determination as to the ownership by KPPC, if that later proves necessary."
On March 22, 2001, Judge Elias entered judgment against James Cho in the lead and consolidated actions, stating in part: "The court having granted summary judgment on behalf of defendants, and cross complainants having voluntarily dismissed their causes of action, the case is completed and all causes of action in the instant action have been resolved."
IV. Judgment in Daniel Jhos Action
On April 24, 2001, a complaint was filed by Presbytery, KAPC, and Daniel Jho, in his name and that of the Church, against James Cho and seven Church board members (No. BC249193, Daniel Jhos action). Daniel Jho, who had been appointed by Presbytery as Church pastor (and has since been replaced by Jung Hoon Lee), sought declaratory relief to establish his congregation as the true Church, and an injunction prohibiting James Cho from exercising control over the Church. Daniel Jho denied that the Church had ever disaffiliated or voted to disaffiliate from KAPC, to which it still belonged. (The record is undisputed that the prior voting was conducted solely on the issue of whether to withdraw from Presbytery.)
On January 14, 2002, Judge John P. Shook, relying in part on Judge Eliass summary adjudication ruling in the lead and consolidated cases, granted Daniel Jhos motion for summary judgment. Judge Shooks summary judgment order included the following determinations: (1) the Church is a member of KAPC and Presbytery; (2) the determination of KAPC and Presbytery as to which faction is the true Church is an ecclesiastical decision; (3) James Cho and his followers resigned from Presbytery and, having abandoned their Church membership, lost all power and ability to determine the future status of the Church; (4) the Church is governed by KAPCs Book of Church Order; (5) under the First Amendment, the court must give binding and conclusive effect to the religious decisions of KAPC and Presbytery; and (6) there are no property disputes for which neutral principles of law may be employed.
Judge Shook then entered judgment for Daniel Jho, which stated: "`[The Church] is a member of KAPC and the PRESBYTERY; Defendant, JAMES INSOO CHO, is no longer the senior pastor of [the Church]; Defendants and their followers are not [the Church], and they have abandoned their membership and lost all power and ability to determine the future status of [the Church]; Plaintiff REV. JHO is an interim senior pastor of [the Church]; and Plaintiff REV. JHO and his followers are the "true" [Church] and are entitled to its property." (KPPC II, supra, at p. 23.)
V. KPPC II
In KPPC II, we consolidated James Chos appeals in B151945, from Judge Eliass judgment in the lead and consolidated actions (Nos. BC210151, BC226204, BC210353), and in B158402, from Judge Shooks judgment in Daniel Jhos action (No. BC249193).
In KPPC II, we noted that because KAPC was not claiming any interest or title to the Churchs property, if the Churchs prior votes to disaffiliate from Presbytery were valid, then KAPC no longer had the right "to dictate the identity of the pastor of the Church." (KPPC II, supra, at p. 34.) That right existed, we stated, only "as long as the Church chooses to be a member of the organization." (Ibid.) We concluded that in the summary judgment proceedings, both trial courts had misinterpreted the Churchs vote to withdraw from Presbytery as insufficient to effect a withdrawal from KAPC. (Id. at p. 38.) We determined there was "no reason why a vote to withdraw from `the Presbytery was not sufficient to effect a withdrawal from the KAPC organization." (Ibid.) We therefore reversed the judgments that were based on the erroneous summary judgment rulings, stating that "triable issues exist as to whether the May 1999 vote or any of the other votes by the membership to disaffiliate from the Presbytery were valid as a matter of corporate governance." (Id. at p. 42.) We ruled that if further proceedings showed that "all such votes were invalid, the court is directed to conduct a vote of the membership of the Church on this issue pursuant to Corporations Code section 9414. In the interim, James Cho and his followers should be restored to the Churchs property and pulpit." (Id. at p. 42.)
VI. Postremand Proceedings and Judgment
After the KPPC II remand, the superior court deemed Daniel Jhos case (No. BC249193) to be related to the lead and consolidated cases (Nos. BC210151, BC226204, BC210353), and assigned them to Judge Paul Gutman. (A fifth case, No. BC303506, which was also deemed to be a related case, is not before us.)
Judge Gutman announced that a bench trial would be conducted on the validity of the prior votes as directed in KPPC II. According to our record on appeal, the only parties who appeared at trial were those represented by Attorneys Melvin Chung, on one side, and Alfred Calabro, on the other side. Chung represents the plaintiffs in Daniel Jhos action (No. BC249193): Presbytery, KAPC, and Jung Hoon Lee as Daniel Jhos successor. Calabro represents the plaintiffs in the lead action, James Cho and his followers. In the remainder of this opinion, we will refer to Chungs clients as KAPC, and Calabros clients as James Cho.
KAPC and James Cho filed a joint statement that described the issues to be tried as follows: "This case, on remand after an appeal, concerns a determination of whether the Korean Philadelphia Presbyterian Church (`KPPC) withdrew its affiliation from a religious denomination known as the Korean American Presbyterian Church (`KAPC). On remand, the appellate court has directed that a trial be conducted to determine the validity of any KPPC congregational vote to withdraw KPPCs membership from the California Presbytery and KAPC. [¶] If the trial court determines that none of the prior voting sessions was valid, then the trial court shall conduct a congregational vote, pursuant to Corporations Code section 9414, to determine whether KPPC will disaffiliate from the Presbytery."
James Cho objected below that the trial court lacked subject matter jurisdiction over the Churchs decision to disaffiliate from Presbytery and KAPC. We are unable to determine from our limited appellate record the exact procedural posture in which the jurisdictional challenge arose, but we infer from James Chos July 13, 2004 "Reply Brief on the Question of Jurisdiction" that the trial court held a hearing on the jurisdictional issue. We further infer that KAPC opposed the jurisdictional challenge, given its May 24, 2004 trial brief that urged the trial court to: (1) enter judgment invalidating the prior votes; (2) enter judgment against James Cho in the lead action (and thereby approve his termination by Presbytery); (3) enter judgment for Presbytery, KAPC, and Jung Hoon Lee in Daniel Jhos action against James Cho; and (4) "determine the feasibility of holding another vote on the issue of whether [the Church] should withdraw from the PRESBYTERY."
After the jurisdictional challenge was raised, KAPC filed a July 27, 2004 motion for judgment that specifically asked the trial court to declare the prior votes invalid and conduct a new election. KAPCs motion stated in part: "We respectfully request this Court to enter judgment in favor of Defendants the PRESBYTERY, KAPC, and REV. JUNG HOON LEE and his congregation of KPPC members in exile, that all prior voting of KPPC members on the issue of disaffiliation from the PRESBYTERY were invalid as a matter of corporate governance, and that this Court will conduct another vote in accordance with the Corporations Code."
After conducting the bench trial, the trial court entered its finding on February 3, 2005, that the previous votes to disaffiliate were invalid. Consistent with KAPCs request and our directions in KPPC II, the trial court then ordered that a new vote be conducted of the Church membership, which it defined as "only those persons who were members of the KPPC at the time of the invalid voting."
Pursuant to stipulation, the trial court appointed Referee Mark S. Ashworth to conduct the new election. In March 2006, the Church membership voted unanimously to disaffiliate from Presbytery. Although a dispute arose regarding the validity of 9 percent of the ballots, the referee found the dispute was irrelevant because, in any event, the vote to disaffiliate was unanimous.
On June 29, 2006, Attorney Kenneth Gibson, on behalf of what he described as the "Gibson Faction" in the actions by Chun Cho (No. BC210353), KAPC (No. BC226204), and Moon Chul Kim (No. BC303506), objected to the proposed judgment. Although the actions by Chun Cho and KAPC were consolidated with the lead action in KPPC II, Moon Chul Kims action, which was assigned to Judge Gutman as a related action, was not involved in KPPC II. In his objection, Gibson identified three factions that claim to represent the Church. Gibson stated that: (1) the "Calabro Faction" is headed by James Cho, who, with his congregation, left the Church "in December 2004 and joined another denomination"; (2) the Gibson Faction is headed by Chun Cho and Moon Chul Kim; and (3) the "third faction is negligible and is represented by Mr. Melvin Ch[u]ng." In particular, Gibson argued that the proposed judgment was premature in that it did not resolve the declaratory relief claims raised in Moon Chul Kims related action (No. BC303506).
On July 27, 2006, Gibson filed a notice of association of counsel, stating that Attorney Joseph McGuinness (who filed the consolidated actions on behalf of Chun Cho (BC210353) and KAPC (BC226204)) was going to take the "active" role in handling Moon Chul Kims action (BC303506). McGuinness represents appellant Chun Cho in the present appeal.
On August 17, 2006, the trial court, after considering the parties responses, entered judgment in the KPPC II cases approving the unanimous March 2006 vote to disaffiliate from Presbytery. The judgment declared that, as a result of that vote, the Church "has lawfully withdrawn from any membership it had, or may have had, in the California Presbytery." The court reserved jurisdiction only to determine the allocation of the referees fees and costs among the parties and to determine whether to award costs to the prevailing party or parties.
DISCUSSION
Only one party, Chun Cho, represented by Attorney McGuinness, has appealed from the August 17, 2006 judgment. Although Chun Cho also purports to represent the Church in this appeal, it is beyond the scope of these proceedings to determine whether Chun Cho actually represents the Church. We deem Chun Chos purported appeal on behalf of the Church to be irrelevant to our resolution of the issues before us.
Chun Cho contends that: (1) the August 17, 2006 judgment was erroneously entered in violation of the one final judgment rule; (2) the trial court erroneously included in the 2006 voting the excommunicated "persons who were members of the KPPC at the time of the invalid voting"; (3) the invalidity of the prior votes necessarily reinstated Presbyterys termination of James Cho and also requires reinstatement of the prior summary judgment rulings of Judge Elias and Judge Shook; and (4) we lacked jurisdiction in KPPC II to order that a new election be held if the prior votes were found to be invalid.
Underlying many of Chun Chos arguments is the theory that, by holding a new election rather than reinstating Presbyterys removal of James Cho, the trial court violated KAPCs ecclesiastical and constitutional right to name the pastor of the Church. The opening brief states that KAPC "possessed the sole authority to determine who would control the pulpit of the Church and who could be members of the Church — and the exercise of that authority is not subject to judicial review."
KAPC and Presbytery did not appeal, however, from the August 17, 2006 judgment. As neither party briefed the issue of Chun Chos standing to assert the rights of the absent KAPC and Presbytery, we requested additional briefing from Chun Cho on this issue under Government Code section 68081. We have received and considered his supplemental response dated March 28, 2008.
I. The One Final Judgment Rule
Chun Cho contends that the August 17, 2006 judgment violated the one final judgment rule. (Citing Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701; David v. Goodman (1948) 89 Cal.App.2d 162, 165-166; Palo Alto-Menlo Park Yellow Cab Co. v. Santa Clara County Transit Dist. (1976) 65 Cal.App.3d 121, 129.) We disagree.
In KPPC II, we directed the trial court to resolve two remaining issues in the lead and consolidated cases: (1) determine whether the prior votes to disaffiliate were invalid; and, if so, (2) hold a new election of the Church membership on whether to disaffiliate from Presbytery. We made it clear in KPPC II that, with the exception of those two issues, all remaining issues had been either resolved or abandoned. In KPPC II, we rejected James Chos argument that Judge Eliass summary judgment ruling erroneously failed to dispose of an entire cause of action or affirmative defense. We further held in KPPC II that to the extent Chun Cho and KAPC had raised issues in their consolidated complaints regarding the true identity of the Church, they had abandoned those issues by allowing summary judgment to be entered without reference to those claims. (KPPC II, supra, at p. 24, fn. 17.) Under the doctrine of the law of the case, Chun Cho is bound by our prior rulings in KPPC II. (See Clemente v. State of California (1985) 40 Cal.3d 202, 211-212.)
II. The New Election Was Over-inclusive
Chun Cho argues that the new election improperly included excommunicated members who were Church members when the invalid elections were conducted. He contends that allowing the former members to vote in the new election interfered with KAPCs ecclesiastical and constitutional right to determine the Church membership. He also argues that the new election results should be discarded because of complaints of voting fraud, and because the voters were not informed that their votes to disaffiliate would negate Presbyterys removal of James Cho as pastor. Claiming that the votes "by non-members" to disaffiliate from KAPC "negate[d] ecclesiastical decisions of the religious hierarchy in violation of the First Amendment," Chun Cho contends that "the trial court should have rejected the voting altogether, rather than entered judgment based thereon."
To the extent that Chun Cho has standing as a Church member to challenge the alleged election errors, we conclude that he is incapable of establishing any prejudice, given that the vote to disaffiliate was unanimous. Subtracting the disputed votes from the tally could not possibly change the election result, given that no votes were cast to remain affiliated with Presbytery.
III. The Invalidity of the Prior Votes to Disaffiliate
Chun Cho contends that the invalidity of the prior votes to disaffiliate necessarily validated the authority of Presbytery and KAPC to terminate James Cho as pastor and excommunicate his followers. Chun Cho argues that James Cho, having been terminated as pastor, "cannot be in control of the Church. James Cho has abandoned the Church and his followers are not members. Appellants should be in control of the Church." We are not persuaded.
In essence, Chun Cho is asking this court to validate and enforce KAPCs and/or Presbyterys edict removing James Cho as pastor. That we cannot do. In our prior opinions, we made it clear that "where an internal church dispute turns on `the resolution . . . of controversies over religious doctrine and practice, not on a property question resolvable under `neutral principles of law, the civil courts may not adjudicate the dispute. (Presbyterian Church v. Hull Church (1969) 393 U.S. 440, 449.)" (Vukovich v. Radulovich (1991) 235 Cal.App.3d 281, 291.) By choosing which faction of the Church should be in control, we would improperly become embroiled in the internal workings of the Church.
It has never been clear in this litigation whether the decision to remove James Cho was made by KAPC or Presbytery or both.
Moreover, Chun Cho lacks standing to raise this claim. In his supplemental letter brief, he asserts that the members have a "material interest and legal standing over the conduct, consequences and effect" of the vote. He is correct—up to a point. As a Church member, we agree that he has the right to attack the manner in which the election was conducted, and we have addressed that issue in this appeal.
The membership vote was conducted for the sole purpose of determining whether KAPC and Presbytery had the right "to dictate the identity of the pastor of the Church." (KPPC II, supra, at p. 34.) The outcome of the vote focused only on their authority over the Church. Thus, only KAPCs and Presbyterys interests were directly impacted by the vote. Chun Cho has failed to explain why he, as a member of the Church, has standing to assert KAPCs and Presbyterys rights. We conclude that only KAPC and Presbytery have standing to protest that the vote improperly stripped them of their power over the Church. As neither party has chosen to question the effect of the invalid Church votes to disaffiliate on the edict removing James Cho as pastor, we need not address that issue.
Chun Chos assertion that we must reinstate the prior judgments based on summary judgment rulings that we reversed in KPPC II lacks merit. Under the law of the case doctrine, our prior appellate ruling is final and binding on Chun Cho in this appeal. (See Clemente v. State of California, supra, 40 Cal.3d at pp. 211-212.)
IV. Lack of Jurisdiction
Chun Cho contends that our directive in KPPC II, to hold a new election if the prior votes were found to be invalid, is void for lack of jurisdiction. He reasons that because a court may order a new election under Corporations Code section 9414, subdivision (a) upon the petition of a director, officer, delegate, or member, we exceeded our jurisdiction by ordering a new election in the absence of such a request.
Chun Cho, however, is bound by the actions of the party that represented his interests at trial (KAPC, Presbytery, and Jung Hoon Lee). At trial, KAPC specifically urged the trial court to hold a new election under Corporations Code section 9414, subdivision (a), thereby curing any alleged jurisdictional defect. Having requested the trial court to conduct the very election that he now claims this court was never asked to hold, Chun Cho is judicially estopped to raise the issue on appeal. (E.g., Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 130-131 ["`"Judicial estoppel, sometimes referred to as the doctrine of preclusion of inconsistent positions, prevents a party from `asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding""].)
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs.
We Concur:
EPSTEIN, P. J.
WILLHITE, J.