Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC304823, Gregory Wilson Alarcon, Judge.
Law Office of Dan Evan Fleischman and Dan Evan Fleischman for Cross-defendant and Appellant.
No appearance for Plaintiffs, Cross-defendants and Respondents.
Davert & Loe, Lawyers, David C. Loe, Douglass S. Davert and Jason E. Guerra for Defendants, Cross-complainants and Respondents.
MALLANO, P. J.
This case entails a dispute among the members of the True Faith Missionary Baptist Church of Compton (Church). Plaintiffs supported the retention of Reverend W. W. Smith as Church’s pastor and defendants did not. In 2005 the parties entered into a settlement agreement, requiring among other things that Smith announce his retirement and step down as pastor in April 2007. In December 2007, the trial court granted defendants’ motion to enforce the settlement agreement pursuant to Code of Civil Procedure section 664.6 (section 664.6) and ordered that Smith immediately retire as Church’s pastor. Smith appeals from the order. We affirm because Smith has not met his burden of establishing that the order is not supported by substantial evidence or that he was denied a fair hearing.
BACKGROUND
In October 2003, Church director John Redmond and five other directors or members of Church (hereinafter collectively referred to as plaintiffs) filed an action against Church directors Donald and Mable Harris and four other directors to remove defendants as directors of Church and for other relief. Plaintiffs alleged, among other things, that defendants’ attempt to remove Smith as pastor violated Church’s bylaws. In November 2003, defendants filed a cross-complaint for injunctive relief against plaintiffs and Smith.
In March 2005, all parties, including cross-defendant Smith, executed and filed with the court a settlement agreement and release of claims (settlement agreement). In pertinent part, the settlement agreement provided that until April 6, 2007, Smith would remain as pastor of Church, “without interruption or disruption of any kind and with the full cooperation, respect and support” of the parties. On April 6, 2007, Smith was required to announce his retirement as pastor to Church’s congregation, relinquish his position as Church’s pastor, and “shall not thereafter return as Pastor of [Church] even if asked or elected.” While Smith was serving as pastor, defendants were required not to “make any attempts or express or implied statements nor to take any actions to remove or otherwise interfere with [Smith’s] function as Pastor of [Church] nor shall they invite, encourage, suffer or permit anyone else acting at their behest, on their behalf or otherwise to do so.”
The settlement agreement further provided that the court retained jurisdiction over the parties and the action to enforce the settlement pursuant to section 664.6.
In April 2007, defendant Donald Harris brought a motion to enforce the settlement agreement and for an order requiring that Smith immediately retire as pastor of Church. At the September 2007 hearing on the motion, which was held over the course of three days, the court received documentary evidence and heard oral testimony from Smith as well as plaintiffs Lynda Travis, John Redmond and Cathy Wartell, and defendants Donald Harris, Cleveland Owens and Barbara Spivey. The only testimony from those three days which is part of the appellate record is the testimony of Cleveland Owens. According to Owens, Harris was ex-communicated from Church in March 2006.
The trial court denied Harris’s motion without prejudice on September 14, 2007. The court ruled in pertinent part as follows: “[Smith] breached the settlement agreement by... failing to retire as agreed in Section One of the Settlement Agreement.... [¶] The court finds that [Harris] breached the settlement agreement by being disruptive at church services, business meetings of the church, and by using such self-help methods as removing the photographs of Reverend Smith from the church. The court rejects [Harris’s] claim that he was at all times respectful to Reverend Smith at these meetings and at services and that he was never disruptive.... [Harris] should have sought the court’s intervention pursuant to the Settlement Agreement and not ignore the Agreement by taking matters into his own hands.” The court noted that “the evidence adduced at the hearing revealed that the church handled the situation of the disruptions of Mr. Harris through a vote that excommunicated him from [Church].” The court concluded that “[b]ecause of breaches of the Settlement Agreement by both [Smith] and [Harris], neither side is a prevailing party so no attorney’s fees and costs will be awarded.”
In October 2007, defendants Mable Harris, Cleveland Owens, Barbara Spivey, and Emma Smith filed a motion to enforce the settlement agreement, with a hearing date of November 20, 2007. Defendants argued that Donald Harris’s breach did not preclude them from seeking specific performance of the settlement agreement because each defendant was responsible for his or her own conduct and the moving defendants fulfilled their obligations under the settlement agreement. No declarations were offered in support of the motion; rather, the points and authorities supporting the motion referred to the testimony at the hearing on Donald Harris’s motion. Defendants claimed that in Smith’s September 2007 testimony, Smith “admitted that the conduct of Donald Harris was not the sole factor for his decision to breach the settlement agreement, and that Smith decided long before April 6, 2007 that he was not going to retire as he promised. Furthermore, Smith could not testify as to any specific goal or action of Smith that was thwarted as a result of Donald Harris’ conduct, in essence testifying that Donald Harris’ conduct did not prevent Smith from fulfilling his duties as pastor.” Smith also purportedly testified that “he decided not to retire in part due to his own desire to fulfill his ‘plan’ for the church....”
At the hearing on November 20, 2007, plaintiffs’ attorney asked for a short continuance because he did not have an opportunity to read defendants’ motion until November 7 and he needed more time to respond properly. Defendants’ attorney asked the court, “Are you intending to set this for another huge hearing again with evidence and everything like we did last time or is this going to be a motion this time?” and stated, “The hearing we held related to the conduct of Harris solely as far as the defendants go. We’re saying that the other defendants were basically behaving themselves and because –—” The court stated, “I know that. [¶]... [¶]... Candidly I thought about that when I read your motion. First of all, you’re not presenting anything in terms of declarations that need to be opposed. And, second, even from the previous hearing, I don’t remember anything about the other people that was any way as far as not abiding by the terms and conditions.”
Plaintiffs’ attorney disagreed with the court’s characterization, stating that the defendants “acted in concert with Mr. Harris to actually estop the corporate resolutions which were in place which, in effect, defeated Mr. Smith from carrying on his services.” The court responded, “I understand that. But that doesn’t need any testimony. I understand. [¶]... [¶]... I don’t think this would be long at all.” The court then granted a continuance of the hearing to December 6, 2007; plaintiffs’ opposition was to be filed and served by November 28, 2007, and the reply to the opposition was to be filed and served by December 3, 2007.
On November 28, 2007, plaintiffs and Smith filed opposition to the motion and requested attorney fees in opposing the motion. The only declaration accompanying the opposition was that of plaintiffs’ attorney and addressed only the issue of fees. The opposition argued that Mable Harris (one of the four moving parties) submitted no declaration or other evidence to support her motion, and that Mable Harris “violated the settlement [agreement] by refusing to serve as Deaconess for the Board, prepare communion for the church on the first Sunday of each month and failed to attend church services or to work collectively, cooperatively or faithfully with Reverend Smith and the church congregation.” Plaintiffs also argued that Smith’s promise to retire was excused by defendants’ “continuing breaches of the settlement agreement,” such as defendants’ conduct in locking the doors to Church on several occasions to prevent Smith and other members of Church from attending services and functions, in making derogatory slurs about Smith, and in holding private meetings in their homes in violation of Church bylaws. Plaintiffs also alleged that Cleveland Owens engaged in disruptive behavior during Church functions in March 2007 and on April 8 and 15, 2007. Attached to the opposition were several resolutions passed by Church’s interim board in April 2005, dealing with the operating rules for the interim board, which elected Donald Harris as its chairman.
In reply, defendants argued that, based on the September 2007 evidentiary hearing, the court had previously determined that Smith breached the settlement agreement and that no further evidence on this point was necessary to support the motion. The reply also pointed out that the allegations about defendants’ alleged breaches set out in the opposition papers were not supported by admissible evidence. Defendants also requested an opportunity for discovery should the court decide to hold an evidentiary hearing on the motion.
At the December 6, 2007 hearing, plaintiffs’ attorney argued that the moving parties were acting in concert with Donald Harris, as shown by the April 2005 resolutions passed by the interim board, and that defendants did not act with clean hands. To support the argument that moving parties violated the settlement agreement, plaintiffs’ attorney referred to the September 2007 testimony of Cleveland Owens, Donald Harris, and Smith. Plaintiffs’ attorney at one point stated that “perhaps the court will entertain perhaps half day testimony of this. We would like the testimony to be in court to be examined. And they will actually indicate to the court that, after this [sic] new resolutions were further discussed within the church members and the church members indicated that they were wrong, most of them actually left the church,” and “I think, Your Honor, this motion should be denied. The court had denied it once for one of the defendants who was the ring leader of that. And we have again, Your Honor, we’ve shown that the others were actually working in concert.” Plaintiffs’ attorney also argued that the tentative decision, in favor of defendants, was incorrect in finding that the opposition was not timely filed.
The court replied, “I read and considered the opposition. I did. I went through all the points.... How many days was that [prior] hearing?” The court and counsel then discussed the proceedings that were held from January to July 2005, involving the setting up of the interim board and determining the members of Church, which proceedings were supervised by a private judge paid for by the parties, as provided for in the settlement agreement. Plaintiffs’ attorney then stated, “Perhaps the court can... recommend the involvement of [the private] judge... on the issue.” The court then commented that it was aware that Church was very small and that the litigation was costing a great deal of money. The court asked the parties if they wanted to put anything else on the record, and each side had nothing further. The court took the matter under submission.
On December 14, 2007, the court issued an order granting the motion, “based upon the grounds set forth in the moving parties’ papers and furthermore on the grounds that the opposing party failed to file timely opposition by the due date of November 6, 2007. (CCP § 1005.) The court, in its discretion, refuses to consider any late filed papers on this motion. (CRC Rule 3.1300(d).) [¶] The Court orders that Smith immediately retire as Pastor of [Church] even if asked or elected, pursuant to the terms of the settlement agreement.” On December 28, 2007, Smith filed a notice of appeal from the December 14, 2007 order.
In March 2008, while this appeal was pending, Smith filed a new action, seeking equitable relief and damages for breach of the settlement agreement against the defendants. (W. W. Smith v. Donald Harris et al. (Super. Ct. L.A. County, No. BC387265) (referred to as the 2008 lawsuit).) In July 2008, the superior court made an order that Smith’s 2008 lawsuit and the instant case were related cases. In the 2008 lawsuit, the trial court in August 2008 sustained in part defendants’ demurrer without leave to amend and granted in part Donald Harris’s special motion to strike. Smith appealed those rulings on October 28, 2008, and sought to consolidate the instant appeal with the appeal arising out of the 2008 lawsuit (Smith v. Harris et al. (B211851)). We denied Smith’s motion to consolidate the two appeals.
DISCUSSION
Smith contends that the December 14, 2007 order granting defendants’ motion to enforce the settlement agreement must be reversed because (1) the court deprived Smith of a fair hearing by failing to conduct an evidentiary hearing on defendants’ “misconduct,” (2) the order was not supported by any admissible evidence, and (3) the court erroneously struck the timely filed opposition.
Section 664.6 provides “an expedited procedure for enforcing a settlement once it has been agreed upon.” (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360 (Osumi).) “‘Trial judges may consider oral testimony or may determine the motion upon declarations alone. [Citation.] When the same judge hears the settlement and the motion to enter judgment on the settlement, he or she may consult his [or her] memory. [Citation.]’ [Citation.] The trial court’s factual findings on a motion to enforce a settlement pursuant to section 664.6 ‘are subject to limited appellate review and will not be disturbed if supported by substantial evidence.’ [Citation.]” (Osumi, at p. 1360.)
“Consistent with the venerable substantial evidence standard of review, and with our policy favoring settlements, we resolve all evidentiary conflicts and draw all reasonable inferences to support the trial court’s finding that these parties entered into an enforceable settlement agreement and its order enforcing that agreement.” (Osumi, supra, 151 Cal.App.4th at p. 1360.)
“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citations.]” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
“Where no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 153-154.) The effect of this rule is that an appellant who attacks a judgment but supplies no reporter’s transcript will be precluded from raising an argument as to the sufficiency of the evidence. [Citations.]” (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
Accordingly, Smith disclaims any challenge to the sufficiency of the evidence supporting the December 2007 order; rather, his challenges are framed as procedural and due process errors.
Yet Smith contends that the December 2007 order was not supported by “any admissible evidence” and that he was denied a fair hearing. We disagree. The trial court, in ruling on defendants’ motion to enforce the settlement in December 2007, discussed and considered the testimony elicited at the hearing on Donald Harris’s motion in September 2007, when seven witnesses testified. In other words, the trial court deemed the September testimony to be part of the evidence submitted in connection with the December 2007 hearing on defendants’ motion. No party objected below to the trial court’s consideration of the previous testimony in connection with the hearing in December 2007. Because Smith did not object to the procedure employed by the trial court, he has forfeited any claim of error on this point. “‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method.... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver.... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.) Accordingly, Smith’s assertion that the December 14, 2007 ruling was made without any admissible evidence is without merit.
The record also belies Smith’s assertion that he was denied an opportunity for an evidentiary hearing and thereby denied a fair hearing in December 2007. Although Smith’s written opposition contained a bare “Request for Evidentiary Hearing,” his opposition papers did not identify any particular witness he wished to testify. At no time during the hearing on December 6, 2007, did Smith proffer any specific evidence or call any witness. Nor did the trial court deny Smith an opportunity to present oral testimony or offer any additional evidence. Even now, Smith’s appellate briefs fail to identify specific evidence which he was prevented from presenting in December 2007.
Smith fails to establish that any purported error by the trial court in refusing to consider his written opposition was prejudicial. Although the trial court stated at the hearing on December 6, 2007, that it had read and considered the opposition papers, its December 14, 2007 ruling stated that it did not consider “any late filed papers.” It is unclear whether the court considered the written opposition to be untimely. Assuming the failure to consider the opposition was error, Smith fails to establish that the purported error was prejudicial. “‘It is a fundamental principle of appellate jurisprudence in this state that a judgment will not be reversed unless it can be shown that a trial court error in the case affected the result.’ [Citation.]” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822.) Smith thus has the burden of showing not only error, but injury from the error. (Ibid.) He has not done so.
We need not address Smith’s argument that the trial court’s September 2007 ruling has no collateral estoppel effect on his subsequent lawsuit filed in March 2008 because proceedings and rulings made after the December 2007 order were not before the trial court and are not properly considered by us on this appeal. (Doers v. Golden Gate Bridge etc. Dist., supra, 23 Cal.3d at p. 184, fn. 1 [“As a general rule, documents not before the trial court cannot be included as a part of the record on appeal.”].) In connection with his collateral estoppel argument, Smith filed on January 2, 2009, a request for judicial notice of a December 23, 2008 order rendered in his 2008 lawsuit. As that lawsuit is not before us in this appeal, we deny Smith’s request for judicial notice.
As Smith fails to establish any prejudicial error, the December 14, 2007 order is affirmed.
DISPOSITION
The December 14, 2007 order is affirmed. W. W. Smith’s request for judicial notice filed on January 2, 2009, is denied. Defendants are entitled to their costs on appeal.
We concur: ROTHSCHILD, J., TUCKER, J.
Judge of the Orange County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.