Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC375641, Dzintra Janavs, Judge.
Henry M. Lee and Douglas Han, for Plaintiff and Appellant.
Kenneth T. Haan, in pro. per.; Kenneth T. Haan & Associates, Douglas E. Klein and Michael H. Kim for Defendants and Respondents the Los Angeles Korean Methodist Church Inc., Jong Hwan Kim, Andrew Kim, Doug Young Park, Byung Jik Cho, Je Oun Kim.
Finnegan & Diba and Kasey Diba for Defendant and Respondent Jane Kim.
RUBIN, ACTING P.J.
This appeal involves a reciprocal preliminary injunction mutually restraining two groups of church pastors and parishioners from interfering with each other’s use of church facilities while they litigate over control of the church. We remand to the trial court with directions that it consider whether, and in what amount, the group that applied for the preliminary injunction must post a security bond, and otherwise affirm the injunction.
Because this is an appeal from a preliminary injunction, we do not have the benefit of firmly established facts that we can rely upon which ordinarily flow from a trial or other evidentiary proceeding. Accordingly, we recite the facts as best we can discern them from the record, knowing they may evolve as the case proceeds.
Defendant Ki Sung “Paul” Song was senior pastor of plaintiff Los Angeles Korean Methodist Church. Whenever Pastor Song was unavailable to lead church services, Kang Sik Nam, who was acting senior pastor, substituted for him. Pastor Song resigned in May 2007. When he resigned, he named defendant Young Chun “Andrew” Kim, and not Kang Sik Nam, as acting senior pastor until a new senior pastor assumed office. Because plaintiff church belonged to an association of Methodist churches named the Pan American Annual Conference, church elders asked the conference’s bishop to decide who was the proper acting senior pastor. The bishop chose Pastor Nam. Some of the defendants rejected the bishop’s decision and elected defendant Jong Hwan Kim as senior pastor, thus ratifying Andrew Kim’s selection as acting senior pastor. Telling the objectors they were not authorized to choose the senior pastor, the bishop removed the newly elected Jong Hwan Kim as pastor. A schism having emerged within the congregation, the two sides began to wrestle for control of the church and the mantle of legitimacy.
We identify the “factions” by the competing pastors: Jong Hwan Kim and Kang Sik Nam.
In August 2007, plaintiff church acting on behalf of the Nam faction sued the defendants. Requesting a temporary restraining order and other injunctive and equitable relief, plaintiff church sought principally to prevent the defendants from (1) interfering with Pastor Nam’s officiating at religious services and (2) encumbering or transferring church assets. The court issued a temporary restraining order enjoining both sides from disrupting each other’s religious services and sermons. To further that end, the court established a rotating schedule that equally divided the two sides’ use of church facilities for their religious services. In addition, the court enjoined each side from encumbering or selling church property.
In addition to suing defendants who are respondents in this appeal – Pastor Jong Hwan Kim, Andrew Kim, Byung Jik Cho, Je Oun Kim, Doug Young Park, Jane Kim, Kenneth T. Haan, and Kenneth T. Haan & Associates – the church also sued former Pastor Song, who is not a part of this appeal.
In addition to imposing a temporary restraining order, the court also issued an order to show cause for the issuance of a preliminary injunction. Defendants initially opposed a preliminary injunction. They asserted no grounds existed for a preliminary injunction because there was no risk of immediate and irreparable harm in that they had not interfered with Pastor Nam’s duties and did not intend to encumber or transfer any church property. More fundamentally, they argued that appointment of the church’s pastor implicated church doctrine that fell outside a civil court’s jurisdiction. The court dissolved the temporary restraining order and issued a preliminary injunction enjoining the encumbering or transferring of church property. The court noted, however, that ecclesiastical matters involving appointment of the rightful pastor lay outside the court’s jurisdiction.
Defendants, acting in the guise of the Los Angeles Korean Methodist Church Inc. (included as part of the Kim faction), thereafter filed a cross-complaint against plaintiff church and cross-defendants, i.e., the “Nam faction.” The cross-complaint alleged causes of action for conversion, alleging the Nam faction was improperly accepting from church members weekly offerings that rightfully belonged to the “true” church governed by the Kim faction. It also alleged a cause of action for tortious interference with corporate business, alleging the bishop lacked the right to interfere with the Kim faction’s internal governance of the church. Finally, it alleged fraud and deceit, asserting that the Nam faction had misled church members into believing Pastor Nam was the rightful pastor and that the Kim faction’s members were usurpers.
Cross-defendants were Pastor Kang Sik Nam and the conference bishop, Kyung Ha Shin, and others whose roles in the dispute we need not discuss: Kyung Nam Chang; Jong Hyuk “John” Choi; Young Hoon Kim; Beob Kyu Lee; Jung Soo Kim; Chang Oh Cho; and Kee Hiup Ok.
The bishop thereafter issued a notice of intent to expel Pastor Jong Hwan Kim from church membership and banned him from church grounds. Around the same time, the Kim faction voted to withdraw the church from the national organization of Korean Methodist churches. About three weeks later, the Kim faction filed for a temporary restraining order against the Nam faction. The Kim faction sought to enjoin the Nam faction from interfering with Pastor Kim’s discharge of pastoral duties at the church. The Kim faction also sought to bar the Nam faction from acting in the church’s name, ejecting people from church grounds, exercising control over church finances or property, or changing locks on church doors.
The Nam faction opposed the request for a temporary restraining order. It noted the court had earlier denied its request for a preliminary injunction against the Kim faction’s interference with Pastor Nam’s services. In opposing the Nam faction’s previous request for a preliminary injunction, the Kim faction had argued the rightful pastor’s selection was an ecclesiastical matter outside the court’s jurisdiction. Accordingly, the Nam faction reasoned, the court must for consistency’s sake likewise deny the Kim faction’s current request for injunctive relief. The Nam faction also argued no risk of irreparable harm existed that warranted a temporary restraining order. Shortly thereafter, in a seeming turn-about, the Nam faction filed for a temporary restraining order against the Kim faction. The impetus for the request appears to have been escalation of confrontations between the factions on church grounds, with off-duty police officers hired by the Kim faction allegedly resorting to physical force against the Nam faction.
The court denied both sides’ applications for restraining orders. The court reinstated, however, the earlier August temporary restraining order and applied it to both factions. The reinstated order established a schedule under which Pastors Nam and Kim divided their use of church facilities. It ordered both sides not to disrupt each others’ church services. It also enjoined both sides from selling or encumbering church property. Besides reinstating the provisions of the August temporary restraining order, the court further ordered that both sides could keep a set of keys to church doors and use the church’s checking account. Finally, the court allowed each faction to post on church grounds one security guard each, who must be unarmed and unaccompanied by a dog. The court thereafter issued a preliminary injunction to the same effect as the reinstated temporary restraining order. This appeal by the Nam faction followed.
DISCUSSION
1. Court’s Weighing of Factors in Issuing a Preliminary Injunction
A party requesting an injunction must show two things: (1) the likelihood of its prevailing on the merits of the dispute; and (2) the harm it will suffer without an injunction outweighs the injury the opposing party will suffer from the injunction. (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625; American Academy of Pediatrics v. Van de Kamp (1989) 214 Cal.App.3d 831, 837.) We review a trial court’s issuance of a preliminary injunction for abuse of discretion. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402.)
The Nam faction contends the trial court erred in issuing the preliminary injunction because the court did not rest its decision on its assessment of the Kim faction’s probability of prevailing and of the likelihood of harm to each side. Instead, according to the faction, the court issued the preliminary injunction solely to preserve peace at the church during the pendency of the lawsuit. Indeed, the faction contends, the court did not find the Kim faction was likely to prevail on the merits. In support, the faction cites the court’s comments during the hearing on the injunction that “Neither of you have shown that you are going to prevail, as far as I am concerned,” and “I don’t think that either side at this point has shown a reasonable likelihood of prevailing, and so I’m doing what I’m doing only to maintain reasonable peace and quiet which apparently otherwise is not feasible.” Indeed, if anything, says the faction, the court hinted that the bishop’s appointment of Pastor Nam was likely to carry the day, making the Nam faction the probable prevailing party.
The Nam faction’s contention does not persuade us. First, the faction did not alert the trial court to the Kim faction’s purported failure to demonstrate the Kim faction’s likelihood of prevailing on the merits. The Nam faction’s opposition to an injunction focused on only one of the two requirements for an injunction: The Kim faction’s failure to show immediately irreparable harm if the court denied the injunction. (The Nam faction also opposed the injunction on a second ground involving the resolution of ecclesiastical disputes by civil courts, which we discuss below.) The Nam faction asserts it argued in the trial court about the Kim faction’s unlikelihood of prevailing, but its supporting citation to page 1307 of the clerk’s transcript shows no such thing. A court’s assessment of a party’s future likelihood of prevailing on the merits is typically very fact specific. The Nam faction’s attempt to argue for the first time on appeal who is likely to prevail denied the Kim faction a meaningful opportunity to respond, and thwarted the court’s prerogative to assess all pertinent facts. “Ordinarily the failure to preserve a point below constitutes a waiver of the point. [Citation.] This rule is rooted in the fundamental nature of our adversarial system: The parties must call the court’s attention to issues they deem relevant. ‘ “In the hurry of the trial many things may be, and are, overlooked which could readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them.” ’ [Citation.]” (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29.)
But even if not waived, we find the Nam faction’s contention fails because we presume the court made the findings necessary to support its injunction unless the record affirmatively shows otherwise. (14859 Moorpark Homeowner’s Assn. v. VRT Corp., supra, 63 Cal.App.4th at p. 1402.) A court may not issue an injunction if it finds the moving party has no chance of succeeding on the merits, for then an injunction only postpones an inevitable loss on the merits. (Id. at p. 1408.) But when the court does not know who is likely to prevail, the court may take into account the competing harms from issuing the injunction or denying one. “ ‘[T]he greater the... showing on one, the less must be shown on the other to support an injunction.’ [Citation.]” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) As the Supreme Court stated in Butt v. State of California (1992) 4 Cal.4th 668, 677-678:
“In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated’ factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. [Citation.] [¶]... [¶] The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction.”
Here, the injunction’s burden on the Nam faction, which amounts to freezing the status quo pending trial, is minimal; neither side can sell or encumber church property, and they must share on a rotating basis the church’s pulpit and worship space. In light of the minimal, and only temporary, injury arising from the unpleasantness (or perhaps theological offense) that members of the Los Angeles Korean Methodist Church may feel from being forced to share their religious sanctuary with former coworshipers until proper authorities – be they civil or ecclesiastical – sort out who rightfully controls the church, we find no abuse of discretion in the court’s issuance of the injunction.
2. Ecclesiastical Matters
The Nam faction contends the court erred in not accepting the bishop’s ruling that Pastor Nam was senior pastor. According to the faction, the preliminary injunction was unlawful because it inserted the court into the inherently ecclesiastical matter of selecting a church’s pastor. (Presbytery of Riverside v. Community Church of Palm Springs (1979) 89 Cal.App.3d 910, 922 [determining who among competing pastors represents the “true” church is an ecclesiastical dispute]; see also Metropolitan Philip v. Steiger (2000) 82 Cal.App.4th 923, 931.)
The Nam faction contends Korean United Presbyterian Church v. Presbytery of the Pacific (1991) 230 Cal.App.3d 480, disapproved on another ground in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743 fn.11 (Korean United Presbyterian Church) is on point. That decision also involved a dispute between two factions within a local church. One faction wanted to withdraw from the national organization to which the church belonged, and the second faction wished to continue the affiliation. During the dispute, the national organization supported the second group’s continuing control of the local church, but the trial court granted control of the church to the first group that wished to sever its ties to the national organization. On review, the appellate court found the trial court erred because it had substituted its judgment for that of the church authorities in deciding which faction properly controlled the local church. The court should instead have deferred to the national organization. (Id. at p. 499 [“ ‘ “whenever the questions of discipline or of faith, or ecclesiastical rule, custom or law have been decided by the highest... church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them” ’ [Citation.]”].)
Determining the boundary beyond which a court such as the trial court in Korean United Presbyterian Church improperly interferes with church matters requires line drawing. That line’s placement rests, in part, on whether a church’s form of internal governance tends toward a hierarchical or congregational structure.
“[A] hierarchical church is one in which individual churches are ‘organized as a body with other churches having similar faith and doctrine[, and] with a common ruling convocation or ecclesiastical head’ vested with ultimate ecclesiastical authority over the individual congregations and members of the entire organized church. [Citations.] It has long been established that in such a hierarchical church, an individual local congregation that affiliates with the national church body becomes ‘a member of a much larger and more important religious organization,... under its government and control, and... bound by its orders and judgments.’ [Citations.] In contrast, a congregational church is defined as one ‘strictly independent of other ecclesiastical associations, and [one that] so far as church government is concerned, owes no fealty or obligation to any higher authority.’ [Citation.]” (Concord Christian Center v. Open Bible Standard Churches (2005) 132 Cal.App.4th 1396, 1409 (Concord).)
Courts owe greater deference to the internal governance decisions of a hierarchical church than to those structured in a congregational form. (Concord, supra, 132 Cal.App.4th at p. 1409.) Assessing a church’s governing structure and drawing the line involve facts that are disputed in the matter before us. The Nam faction asserts the church is hierarchical, thereby giving the conference’s bishop the final word to which the trial court must defer. “State courts must not decide questions of religious doctrine; those are for the church to resolve. Accordingly, if resolution of a property dispute involves a point of doctrine, the court must defer to the position of the highest ecclesiastical authority that has decided the point. But to the extent the court can resolve a property dispute without reference to church doctrine, it should apply neutral principles of law.” (Episcopal Church Cases (2009) 45 Cal.4th 467, 485.) The Kim faction contends, on the other hand, that the church is congregational and, as such, the court owes no deference to the bishop and may instead adjudicate the dispute between the factions by applying neutral principles of law that do not entangle the court in ecclesiastical matters. (Id. at p. 480 [courts apply “ordinary principles which govern voluntary associations” when adjudicating property disputes of congregational church].) Consistent with their competing self-definitions, the bishop has expelled Pastor Kim from his national organization to which plaintiff church and the Nam faction claim allegiance, and the Kim faction has voted to secede their church from the national organization. We cannot at this stage of the proceedings on the record before us resolve the dispute between the parties over the church’s proper characterization as hierarchical or congregational, thus rendering premature the Nam faction’s contention that the injunction improperly inserts civil courts into an ecclesiastical dispute. Substantial evidence sufficient for purposes of a preliminary injunction exists, however, that the church is congregational, thus permitting the trial court’s limited intrusion into matters involving use of church property while the lawsuit is pending.
The Nam faction also contends the court misapplied the neutral principles of law approach that courts ought to apply in resolving disputes over church property. In support, the faction cites Concord, supra, 132 Cal.App.4th at page 1412, which states: “California courts apply the neutral principles of law approach, taking care in resolving church property disputes not to make determinations of underlying controversies over religious doctrine and polity. [Citations.] Accordingly, even where the matter at issue in a church dispute involves questions of ownership of property and assets, civil courts applying neutral principles of law must defer to the authoritative decisions of hierarchical ecclesiastical bodies on any matters of internal church polity necessarily involved in resolving the issue. [Citations.]” The Nam faction’s reliance on Concord presupposes we have determined that the church’s internal governance is hierarchical. A preliminary injunction is not, however, an adjudication on the merits in which the trial court establishes the facts. (Froomer v. Drollinger (1960) 183 Cal.App.2d 787 [noting appeal from preliminary injunction not venue to try case’s merits].) “ ‘The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the right claimed by him.’ [Citations.] The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action. [Citations.]” (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528; see also Hunt v. Superior Court (1999) 21 Cal.4th 984, 999.) Given the undeveloped factual record at this stage of the proceedings, the Nam faction has not established that the trial court abused its discretion in issuing the preliminary injunction.
3. Remand for Undertaking of Security Bond
The Nam faction contends the court erred in not requiring the Kim faction to post a security bond when the court granted the preliminary injunction. The Nam faction is correct. Code of Civil Procedure section 529, subdivision (a), obligates the court to order the party seeking an injunction to post a bond. It states: “On granting an injunction, the court... must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction.” (Italics added.)
The Kim faction contends the Nam faction waived the court’s error by not objecting in the trial court to the bond’s absence. In support of their contention, the Kim faction notes that the Nam faction filed objections to the proposed wording of the preliminary injunction but did not mention the bond’s absence in its objections. The contention fails, however, because a party may raise for the first time on appeal a court’s error in not ordering a bond. (Mangini v. J.G. Durand International (1994) 31 Cal.App.4th 214, 216-217 [bond cannot be waived except under circumstances not applicable here]; ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 10 [no waiver].)
The Kim faction cites Glade v. Glade (1995) 38 Cal.App.4th 1441 for the proposition that failure to request a bond waives the requirement to post a bond. Glade is not on point because it involved waiver of a bond in staying the foreclosure by the husband’s parents of marital property in a marital dissolution action. (Id. at pp. 1446-1447 & fn. 7.) Code of Civil Procedure section 529, subdivision (b) expressly does not apply to spouses in a dissolution proceeding.
The Kim faction alternatively contends it need not post a bond because the Nam faction stipulated to the preliminary injunction. In support of its contention, the Kim faction cites City of Los Angeles v. Superior Court (1940) 15 Cal.2d 16, 23. That decision is too thin a reed to support the contention. The plaintiff in that case sued the City of Los Angeles, which owned an asphalt plant, for nuisance caused by soot and truck traffic generated by the plant’s manufacturing of asphalt. Because the city was rebuilding the plant in a way that would abate the nuisance, the city proposed once trial of the plaintiff’s complaint got underway that the plaintiff suspend prosecution of its lawsuit and enter into a stipulated injunction with the city governing the plant’s operations during the rebuilding. (Id. at p. 23.) The plaintiff agreed. (Id. at p. 18.) The renovations apparently dragged on and seven years later, the city moved to dismiss the lawsuit for the plaintiff’s purported failure to prosecute the matter within five years of filing its complaint. The question before our Supreme Court on appeal was whether the parties’ suspended “partial” hearing on the injunction constituted a “trial” under the five-year statute. (Id. at pp. 19-20.) The Supreme Court held it did. (Id. at p. 21.) In a short closing paragraph at the end of its decision, the Supreme Court gave the back of its hand to the city’s argument that the injunction must be dissolved because the trial court had not required a security bond when the injunction issued. The Supreme Court dispatched the city’s contention with a passing reference to the circumstances under which the city had proposed the injunction, and by noting the injunction had been in place for seven years with neither side complaining about the absent bond until the city raised the issue on appeal. (Id. at p. 23.) The Kim faction’s reliance on City of Los Angeles is misplaced because the Nam faction did not stipulate to the injunction. Hence, the Nam faction’s right to insist that respondent Kim faction post a security bond survives. (Cf. Greenly v. Cooper (1978) 77 Cal.App.3d 382, 385-386 [dicta: no bond required if parties stipulate to injunction; in fact, bond did issue in Greenly, dispute was over amount].)
Although Code of Civil Procedure section 529 speaks of an “applicant” for an injunction which appears directed at the party who sought the injunction, we acknowledge each faction sought at one time or another to enjoin the other side, and further note that the injunction under appeal is mutual in its restraints upon both factions. The effect, if any, that the injunction’s mutuality ought to have on the requirement for posting a security bond is for the trial court’s determination in the first instance.
DISPOSITION
The court’s issuance of the injunction was substantively correct and this aspect of the trial court’s ruling is affirmed, but the ruling was procedurally imperfect solely for failing to order the posting of a security bond under Code of Civil Procedure section 529, subdivision (a). The matter is therefore remanded for the limited purpose of a hearing before the court on the issuance of a bond in an appropriate amount. In all other respects, the preliminary injunction is affirmed. The parties to bear their own costs.
WE CONCUR: BIGELOW, J., BAUER, J.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.