Thursday, July 23, 2009

Brace Yourselves in San Joaquin - Sound and Fury Follows

Word has just been received that the Fresno County Superior Court has affirmed its earlier tentative ruling granting the plaintiff ECUSA's and Bishop Jerry Lamb's motion for summary adjudication of the first cause of action in their second amended complaint. The court issued its final ruling after having held the matter under submission for 77 days. The court heard extensive oral arguments on the motion on May 5, after having postponed the hearing six times since February 25 until it issued its tentative decision in the plaintiffs' favor. (As an informal indication of how impartial the decision is, note that the court sustained [upheld] every one of the plaintiffs' objections to the evidence offered by Bishop Schofield, while it overruled all twenty-one of Bishop Schofield's objections to the plaintiffs' evidence. It also reversed its tentative ruling made at the hearing to keep out the last-minute declarations filed by Bishops Lamb and Buchanan to cover gaps they had left in their original evidence. It allowed that evidence in, and said it did not need to hear the defendants' evidence, or give them any chance to respond.)

By law, the court was required to render its decision within 90 days of May 5, or by Monday, August 3. (Unlike the case with the State's legislators and their duty to enact a budget by July 1 of each year, if a judge cannot certify that all matters submitted to him within the last 90 days have been decided, he cannot draw his paycheck.) The lengthy period between hearing and final decision appears not to have been used to modify the court's earlier ruling to any great extent. (The ruling does not affect the case against Bishop Schofield's attorneys, who were added as defendants after the plaintiffs filed their motion.)

Surprisingly, the court's decision to grant the motion is no longer the bad piece of news it would have been had it happened on February 25, or shortly thereafter. I write this post immediately after receiving word of the court's ruling, in order to forestall the impact of the trumpet-blaring from Bishop Lamb, his supporters, and the Episcoleft blogworld that will now inevitably follow.

The reason why the ruling is not bad news for the defendants any longer is quite simple: the case itself has moved on. The parties are no longer concerned with the second amended complaint, which was the subject of the court's ruling. The plaintiffs have now filed, and the Schofield defendants have now answered, their fourth amended complaint in this case. That fourth amended complaint contains whole new theories about the alleged collusion between the various defendants (including the Bishop's law firm) to remove property from the Episcopal Church (USA) and its allegedly still-existing diocese.

A motion for summary adjudication of a single cause of action, just like a motion for summary judgment on an entire complaint, is framed by the pleadings that are at issue in the case --- meaning the most current pleadings. It is, therefore, in my view a meaningless act to grant adjudication with regard to the second amended complaint, since it is no longer the operative pleading.

The filing of an amended complaint supersedes any earlier version of it --- even if, as here, the plaintiffs are careful not to change one word in the cause of action under consideration. (The amendments plaintiffs were forced to make all had to do with later causes of action they asserted against Bishop Schofield's attorneys, the law firm of Wild, Carter & Tipton in Fresno.) The fact they did not change anything in their first cause of action (for declaratory relief) is not the end of the matter, however, because the plaintiffs reiterated and incorporated the allegations of that first cause of action in all the subsequent causes of action as well. And as just noted, plaintiffs have extensively changed and added new theories to those subsequent causes of action, which are each based on the first. Likewise, Bishop Schofield has not remained pat, either. His latest answer to the fourth amended complaint contains new defenses (against all causes of action, not just the first) which were not asserted in response to the earlier complaints.

So the case has passed the motion for summary adjudication by, and for all intents and purposes, that motion was moot when the court finally acted on it. There is even at least one reported California decision (note: you may have to register with Findlaw to view the link) which expressly holds that it is reversible error for a trial court to grant summary adjudication on a first amended complaint after it has granted leave to file a second amended one. In Perry v. Atkinson (1987) 195 Cal.App.3d 14, 16-17, the court's opinion described the proceedings below as follows:

As to Perry's first amended complaint, Atkinson moved for summary judgment or alternatively summary adjudication of issues. Before the hearing on Atkinson's motions, Perry filed a second amended complaint, adding allegations of physical harm and further facts regarding her confidential relationship with Atkinson. Atkinson demurred to Perry's second amended complaint.

After hearing, the court rendered its written decision, denying Atkinson's motion for summary judgment as to Perry's cause of action for intentional infliction of emotional distress, and granting Atkinson's motion for summary adjudication as to the fraud and deceit cause of action. . . .

The court describes how the plaintiff Perry did her best to try to get the court to recognize that its ruling on the earlier complaint was moot, and how the court tried to cover its tracks by then --- without any notice or motion --- granting summary adjudication on the same cause of action in the second amended complaint, on the ground that it had not changed from how it was pled in the first amended complaint:

Perry contends the court erred in granting summary adjudication of issues as to her first amended complaint because her second amended complaint superseded the first. She asserts once the court sustained the demurrer without leave to amend, it had nothing to summarily adjudicate as to that cause of action.

Perry filed her first amended complaint on September 22, 1982, and her second amended complaint, with the court's permission, on July 24, 1985. The court heard Atkinson's summary judgment motion to Perry's first amended complaint on September 27, 1985 and took the matter under submission. The court issued its memorandum decision on October 3, granting summary adjudication as to Perry's cause of action for fraud and deceit in her first amended complaint. On October 4, the court heard Atkinson's demurrer to the fraud and deceit cause of action in her second amended complaint, but ruled that issue was moot in light of its memorandum decision granting summary adjudication.

On October 15, Perry filed a motion for reconsideration, arguing, in part, the summary adjudication was improper because the first amended complaint had been superseded by the second. On October 28, the court issued two orders: one granting summary adjudication of the fraud and deceit cause of action in Perry's first and second amended complaints and another sustaining without leave to amend Atkinson's demurrer to the fraud and deceit cause of action in Perry's second amended complaint. On November 1, the court denied Perry's reconsideration motion. . . .

The Court of Appeals then gave its view of such proceedings in no uncertain language (195 Cal.App.3d at 18):

We agree with Perry the court improperly granted summary adjudication as to the fraud and deceit cause of action in her first amended complaint. The record reflects the court granted Perry leave to file her second amended complaint with respect to her causes of action for fraud and deceit and intentional infliction of emotional distress. Once Perry did so, that complaint superseded her first amended complaint. [Citations omitted.] Thus, we treat the summary adjudication order as void . . . .

Defendants attempted to call this situation to the attention of the trial court, but it rejected defendants' argument and held the Perry case inapplicable on the ground that the San Joaquin plaintiffs, unlike Perry, had not changed any of the allegations in the cause of action on which summary adjudication was granted. Thus the defendants will now file a petition with the Court of Appeals to have the order vacated. This petition will be based on the ground that, as the Perry case just quoted decides, the motion had become moot in the interim while further versions of the operative pleadings were being filed. It will also be argued that the court's decision is wrong for all of the reasons discussed in two of my earlier posts (here and here).

With regard to the merits of the matter, the trial court in essence decided that ECUSA is hierarchical as a matter of law. But it did so by refusing to consider any of the defendants' expert evidence on the point, and ruled that evidence inadmissible. At the same time, it allowed in and did consider the evidence of the plaintiffs' expert, Dr. Mullin. We are once again in a never-never land of ECUSA's own making, in which it convinces a court to look only at what it says, and not at anything the defendants have to say. That is not the way a court is supposed to adjudicate cases. It has a duty to hear and consider the evidence of both sides before making a ruling, even on a point of law. The only way it could find ECUSA to be hierarchical as a matter of law would be if it found that the expert opinion on both sides raised no disputed issues of fact. But since it excluded all of the defendants' evidence, it cannot even claim to have made such a determination. Such an arbitrary manner of proceeding, which overwhelmingly favors the plaintiffs and gives the defendants no chance to be heard, will be the defendants' strongest reason for asking the appellate court to reverse the trial court's decision.

Most intermediate (interlocutory) petitions to the Courts of Appeal are denied, and this one could be as well, if the Court of Appeal in this instance decides that the case can still go to trial without the issue being prejudiced for an appeal at the end of the whole case. But if the Court of Appeal grants the petition and issues the writ vacating the order, the scheduled trial date --- currently February 1, 2010 --- will have to be moved still further out because of the time taken for the writ proceedings on appeal. (The parties cannot effectively engage expert witnesses and prepare for trial until they know for certain just which causes of action will be tried.)

Thus this "victory" for the plaintiffs on their motion is, in my view, a hollow one. Just ignore all the trumpet-blaring and cheering (or jeering) from the Episcoleft. It is all "sound and fury, signifying nothing . . .". Their victory will in all likelihood not stand for long, and will serve only to drag the case out still further. And since the plaintiff faux diocese of San Joaquin is far from being self-sustaining, and will need yet more cash infusions from the mother church (itself struggling to make up for lost revenues) to keep going, any such extension will not long be cause for rejoicing on that side, once the reality of what has actually happened sinks in.


  1. "Such an arbitrary manner of proceeding, which overwhelmingly favors the plaintiffs and gives the defendants no chance to be heard, will be the defendants' strongest reason for asking the appellate court to reverse the trial court's decision."

    Any reason to have confidence in California's appellate court to reverse the trial court's decision?

    Given that the California Supreme Court authorized gay marriage last year, I don't have much confidence in the judges in California.

  2. TU&D, I understand what you mean about judges in California. However, it must be pointed out that in all of the cases litigated thus far to an appellate decision in California with the Episcopal Church (USA), the trial court has been reversed by the Court of Appeal every time.

  3. As far as the courts are concerned, the Episcopal Church *is* a hierarchical church. It is a matter of precedent. Evidence and testimony is completely beside the point, because it is a legal reality unless SCOUTUS wishes to overturn that precedent.

  4. Thank you for that comment, ruidh. However, you have misstated the notion of a precedent. The Episcopal Church is mostly a hierarchical organization as between a Diocese and one of its parishes; no one has an argument there, and that is what the courts today have generally said (except in Virginia, where there is a special statute, and except in the earlier California cases, now overruled).

    But there is no "precedent" --- i.e., earlier court decision --- deciding or holding that ECUSA is hierarchical with respect to the relationship between it and its dioceses. There is a strong desire, to be sure, on the part of ECUSA to have the courts declare it so, because of the property benefits that are seen to accrue. This is the first such decision anywhere supporting their view, which is why ECUSA and Bishop Lamb are making so much of it.

    Even so, the decision still cannot serve as a "precedent", because it is not yet a final decision. It is what attorneys call an "interlocutory" decision, meaning an interim one on the way to a final judgment. As such, the trial court is free to change it or even reverse it at any time, in light of the evidence offered at trial. (And there will be evidence at trial, because the decision does not affect the defendant law firm, which was added into the case by the third amended complaint. So the law firm is perfectly free to argue and introduce evidence at trial that ECUSA is not hierarchical.)

    Finally, there can be no assurance that Judge Corona will be assigned as the trial judge. It will depend on which judge's calendar is free at the time the case comes up for trial.

    So a "precedent" this decision is not, and could never be.

  5. I think you misunderstand "precedent". Presecent is a ruling in another case which has considered the same legal issues.

    "Without exception, courts which have considered have determined, as a matter of law, that the Episcopal Church is a hierarchical church."

    The 4th circuit decision quoted above specifically cites three decisions. I've personally read dozens. All of these are precedent. They aren't *binding* precedent on California law, but they are persuasive.

    What is binding precedent in California is the California Supreme Court case in the St. James case. The only way that precedent can be overturned is if the CA SC reverses itself or the Supreme Court determines that all of these courts are wrong on this issue *as a matter of law*. Now this issue specifically jas been raised in the St. James petition for certiorari but, even if SCOTUS takes that case, The argument here looks exceedingly weak. It asks that courts not be permitted to inquire about the hierarchical nature when that is in theological dispute.

    But the courts have invented, and SCOTUS has adopted, the hierarchical/non-hierarchical distinction in the first place in order to determine when courts can intervene in property disputes. It is a *legal* question, not a theological one. Property disputes are not new. The disputes that led to the creation of the Reformed Episcopal Church in the 19th Century were extensively litigated.

    If this case hinges on that determination, there's really no hope.

  6. Ruidh, again I thank you for offering your views here -- I welcome more opposition comments. However, you do not seem to notice that you contradict yourself. First, you define a "precedent" as "a ruling in another case which has considered the same legal issues" (I have added the emphasis).

    Then you say: "What is binding precedent in California is the California Supreme Court case in the St. James case." Well, no, it is not "binding" in the Fresno case because it did not involve "the same legal issues." It involved a different legal issue, namely, the relationship between the Diocese of Los Angeles and one of its parishes. And that can never be "the same" as the relationship between a Diocese and the national Church of which it is a member.

    To cite just one major difference, the national Church has no metropolitan archbishop to whom all diocesan bishops are subordinate, in the way that the priests in a diocese are subordinate to their diocesan bishop. So you cannot say the two cases are the same, and if that is correct, then the one case cannot be a "precedent" for the other. (It may be "persuasive" as an analogy, as you say, or again not; but an analogy is not the same as a precedent.)

    There are other reasons why the Supreme Court decision is not binding on the Fresno court, as well. I have a new post up which explains the point in more detail, if you care to read it.

  7. If I understand you correctly, you say that the question of whether TEC is hierarchical with respect to parishes is settled law but the question with respect to dioceses is an issue of first impression without any precedent.

    I think you're still in trouble.

    The same language that is used to demonstrate that parishes are hierarchical with respect to dioceses (i.e. "unqualified accession" to the canons and constitution of the other body) is used when a diocese is recognized by TEC. Even if the court were called on to make an independent determination, the precedents on *how* to do that and what to look at lead to the same conclusion -- that TEC is hierarchical (with respect to dioceses) as a matter of law. And that is exactly how the trial court has ruled.

    Now, the question on whether the court of appeals will take this on interlocutory appeal open. If you were appealing a Temporary Restraining Order, that would be more likely to be taken. Courts of appeal don't like to take appeals of individual PSJ motions. They prefer to consider the entire case when the final judgment has been issued. If there were an order immediately turning over control of property and bank accounts to Bp. Lamb, then that would be much more likely to be taken on appeal because the potential harm is immediate.

  8. Everything you say about the prospects of appellate action is true, ruidh; I do not deny that the odds are against a review at this time.

    However, the force of your analogy to cases of "unqualified accession" weakens when one considers these points:

    1) the word "unqualified" (whatever it may mean in context) was not added until 1982, and San Joaquin became a Diocese in 1961, hence was not required to make such an accession;

    2) When it joined ECUSA, San Joaquin was one of fifteen dioceses which specifically did not accede to ECUSA's canons (and the "new" ECUSA Diocese still does not do so, either); and

    3) There are a total of 29 dioceses which were admitted into ECUSA without any accession to either ECUSA's Constitution or its Canons.