Arguments in the San Joaquin Case

[UPDATE 05/04/2009: I have a comment on the tentative ruling issued by the court this afternoon. Please see the comments below; I will not post anything more until after the hearing and oral arguments tomorrow afternoon, May 5 at 3:30 p.m.]


Tomorrow the Fresno County Superior Court will post its tentative ruling on the Motion for Summary Adjudication filed by the Episcopal Church (USA), the Rt. Rev. Jerry A. Lamb, and what they call the "Diocese of San Joaquin" and "The Protestant Episcopal Bishop of San Joaquin, a corporation sole" against the Rt. Rev. John-David Schofield (whom the complaint names as "Mr. Schofield"), the Episcopal Foundation of San Joaquin, Inc., the Diocesan Investment Trust of the Diocese of San Joaquin, and the Anglican Diocese Holding Corporation. The motion is ambiguous, because it asks the court to adjudicate "Count I" of the Second Amended Complaint (which is practically identical to the First Amended Complaint posted here, except for some explanatory headings), and the Complaint does not contain any section entitled "Count I". The motion also appears to be procedurally defective on a number of grounds under the California Rules of Court. Thus the court could deny the motion on any of these procedural grounds without reaching the merits of the matter; this will be known only when the court posts its tentative ruling late Monday afternoon (at this site---to avoid congestion, please wait until after 3:45 p.m. PDT to try to view the ruling).

If one interprets the reference to "Count I" to mean the entire first cause of action (for declaratory relief) in the Second Amended Complaint (paragraphs 1 through 103 in the link given earlier), then what the motion requests is a declaration that Bishop Schofield cannot continue to be the incumbent of the corporation sole which holds title to all of the diocesan real and personal property, including all of the investment accounts which defendant Merrill Lynch "froze" at the request of ECUSA pending the outcome of the lawsuit. It argues that Bishop Schofield was not authorized, and that his diocese also lacked the authority and the power to authorize him, to amend and revise the articles of the corporation sole as he did in 2006 and again in 2008 (see the allegations in paragraphs 66 through 90 of the complaint referenced above). Those amendments specified how his successor would be named (2006 amendment), and changed the name of the corporation from "The Protestant Episcopal Bishop of San Joaquin" to "The Anglican Bishop of San Joaquin" (2008 amendment). Finally, the complaint asks the court to declare that Bishop Schofield is no longer the incumbent of the corporation sole, or the head of the Diocesan Investment Trust and the Episcopal Foundation of San Joaquin, since ECUSA's House of Bishops voted to "depose" him on March 12, 2008.

If the court does address these substantive issues in its tentative ruling (which will not become final before, and which could change after, the court hears oral argument from the parties on Tuesday), this could become the first case to consider the power of a diocese within ECUSA to amend its governing documents so as to disaffiliate from the national Church. Because these issues are of such importance across the Church today, and are also at stake in three other lawsuits involving the dioceses of Pittsburgh, Fort Worth and Quincy, I thought I would publish here the full text of the legal memorandum filed in opposition to the motion by Bishop Schofield and his attorneys. The memorandum summarizes the arguments made by ECUSA, Bishop Lamb and the other plaintiffs, and shows exactly what the procedural and substantive problems are with those arguments. (References in the memorandum to a "Separate Statement" [abbreviated "PUMF"] are to a pleading that sets out separately each of the individual facts which the moving party claims is undisputed, and not in controversy, for purposes of summary adjudication, or else to the defending party's separate responses to each of those claimed facts [abbreviated "DDMF"]. It is only if a party shows that all of the essential facts pertinent to a given cause of action are not in dispute that the party is entitled to judgment on that cause of action without going to trial.)

Reading the memorandum will therefore give anyone interested in the issues a good background with which to evaluate the court's tentative ruling when it is posted on late Monday. I have been writing on the San Joaquin situation for more than a year now, and claim no neutrality in this matter; from the outset I have believed that ECUSA and its Presiding Bishop willfully ignored the Church's Constitution and canons. There are plenty of sites which the plaintiffs and their supporters can use to post their own arguments, if they wish, and I will not make them on their behalf here. Even so, the memorandum discusses each of the plaintiffs' arguments before proceeding to refute them. (And if you would like even more background information about the case, this page furnishes a guide to all of the previous posts on this site concerning the San Joaquin litigation.) The rest of the text that follows, therefore, is that of the memorandum filed in opposition to the plaintiffs' motion.

I. INTRODUCTION AND SUMMARY

Plaintiffs have filed a motion for summary adjudication which is defective, and fails to comply with the California Rules of Court in several respects. For these reasons alone (explained in detail in Section A of the argument), their motion should be denied.

Moreover, plaintiffs' motion attempts adjudication of what in reality are separate elements of other causes of action, each of which applies differently to each plaintiff, as explained in section B of the argument. As to some of those issues, the statutory notice was not given. Consequently, summary adjudication as to those issues would be improper. And, plaintiffs' motion fails in its entirety because summary adjudication is only permitted if it "completely disposes of a cause of action." (Code Civ. Proc., § 437c, subd. (f)(1).)

Finally there are substantial factual issues and problems with the way in which plaintiffs have framed their (second amended) complaint, and thus with their motion for summary adjudication, which turns on that complaint. For example, plaintiffs seek a declaration from the court that certain amendments enacted in December 2007 by the Diocese of San Joaquin, an unincorporated organization formed in 1961 and with its headquarters in Fresno, were ultra vires and void. Yet plaintiffs have not joined that association as a party to this action! Instead, what they have done is to form a new unincorporated association, first organized in March 2008, with headquarters in Stockton, and to give it the name the "Episcopal Diocese of San Joaquin." Then in the guise of the former association, they ask the Court to declare their "own" previous enactments illegal! This is a charade, not a proper lawsuit, and there is nothing at all that can be tried, let alone summarily adjudicated, as these plaintiffs have come into court and framed the issues.

By the same token, since the plaintiff unincorporated "diocese" has no continuity with the real unincorporated diocese (not a party to this action), it cannot claim to have any authority with respect to the corporation sole for which the latter association is solely responsible under the Corporations Code. Thus the "amendments" which the new association and its leader purported to make with respect to that corporation sole are meaningless, and cannot be the subject of a summary adjudication either.

For all of these reasons, therefore, plaintiffs' motion is procedurally and substantively defective, and should be denied.

II. ARGUMENT

A. Plaintiffs'Motion Fails to Comply with Applicable Rules of Court.

Plaintiffs' motion before the court supposedly seeks summary adjudication of a single cause of action in their second amended complaint (although as explained below, the motion papers are not clear on this point). The format for motions for summary judgment / summary adjudication is spelled out in detail in Rule 3.150, California Rules of Court.

In this case, plaintiffs' Notice of Motion states (p. 2/4-7): " ... plaintiffs The Episcopal Church, The Diocese of San Joaquin, the Rt. Rev. Jerry A. Lamb, and The Protestant Episcopal Bishop of San Joaquin, a Corporation Sole will and hereby do move the Court for an order granting them summary adjudication on Count I of their Complaint." However, there is no section of the Second Amended Complaint herein that is designated "Count I." The term is normally used in criminal indictments; as used in civil pleadings, it is ambiguous. It can either refer to an entire cause of action, as in a "common count," or it can refer to a separate subpart of a single cause of action that is grouped around more than one event or occurrence. The "First Cause of Action" in the Second Amended Complaint is broken into a number of sub-parts, each with its own heading; thus the reference in the notice to "Count I of the Complaint" is ambiguous, and too vague to put defendants on notice of the specific claim for relief as to which plaintiffs seek summary adjudication.

Turning to the Separate Statement for further clarification only adds to the mystery and confusion. The Separate Statement does not identify any particular cause of action, or separate issue of duty or damages, as to which summary adjudication is sought in accordance with the statute, and thus violates subdivision (b) of Rule 3.150, which provides (with emphasis added):

If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.

The facts listed in the Separate Statement could be appropriate to the First Cause of Action for Declaratory Relief (except as shown below), but they would also apply to the Third and Fifth Causes of Action, as well. Neither defendants nor the Court should have to speculate as to the portion of the Complaint plaintiffs meant to indicate by the term "Count I."

The format of plaintiffs' motion papers fails to comply with Rule 3.150 in other respects, as well. The Separate Statement is not filed in the format specifically shown as an example to subparagraph (h) of the Rule; the supporting evidence for each statement of fact is shown in its own separate column to the right, instead of underneath the fact itself. Moreover, subdivision (g) requires that supporting evidence "be separately bound and ... include a table of contents" when it exceeds 25 pages. The affidavits in support of plaintiffs' motion run to hundreds of pages with their exhibits; they are not "separately bound", nor do they have an overall table of contents. The Court should not entertain a motion seeking to short-cut the trial process unless the moving papers are in the form specifically prescribed by the California Rules of Court.

B. Plaintiffs Failed to Give the Required Statutory Notice of Issues to Be Adjudicated.

If it be assumed that adjudication is sought as to the first cause of action only, then the operative paragraphs ofthe second amended complaint are paragraphs 101-103, pursuant to which all plaintiffs seek a judgment "to set forth and determine the parties' rights and duties" with respect to issues of whether certain amendments in 2006 and January 2008 to the articles of the corporation sole were authorized and valid, whether Bishop Schofield is the authorized incumbent of the corporation sole, whether he is entitled to be President of the defendant Episcopal Foundation, and whether he is the President of the Diocesan Investment Trust.

Although incorporated into a single "cause of action for declaratory relief," these issues are actually based on separate facts, transactions and occurrences. Plaintiffs' failure to specify in their separate statement the specific issues sought to be separately adjudicated makes it impossible to tell which "material fact" relates to which issue, and to which party or parties with regard to that issue. Moreover, as a glance at the table of contents in plaintiffs' memorandum will show, each of these supposedly separate issues involves separate sub-issues on their own. Thus, plaintiffs' memorandum lists three separate subheads of argument under the point that Bishop Lamb is the incumbent of the corporation sole, president of the Episcopal Foundation, and president of the Investment Trust. These separate sub-heads involve questions as to which diocese has the authority to authorize changes to the articles of the corporation sole, and which bishop heads up just which diocese. And in connection with the issue of authorized amendments to the articles, the memorandum talks about an April 9, 2008 amendment which is not mentioned in the issues as to which declaratory relief is sought in paragraphs 101-103 of the complaint.

No summary adjudication can be granted unless there was specific notice of the exact issue presented in the notice of motion. (Rules of Court, rule 3.1350(b); Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961,974, fnt. 4.) Seventy-five days' notice of such issue is required. (McMahon v. Superior Court (2003) 106 Cal.App.4th 112.)

Plaintiffs' separate statement is thus inadequate to provide the requisite statutory notice of the issues sought to be summarily adjudicated. Defendants and the Court would have to waste a great deal of time and paper sorting out issues which plaintiffs' blunderbuss approach purports to frame for adjudication, but which in fact are omitted from, or else not sufficiently specified in, their separate statement. Plaintiffs' motion should be denied for failing to comply with the requirements of Code of Civil Procedure section 437c and the California Rules of Court.

C. Plaintiffs Cannot Have Summary Adjudication of the Legality of Acts by a Non-Party.

Plaintiffs ask the Court to adjudicate summarily that the measures passed by the Diocese of San Joaquin at its regular annual convention in December 2007 were ultra vires and hence void. However, plaintiffs have failed to join the Diocese, which is obviously a necessary party to any such determination.

As shown in Defendants' Separate Statement of Additional Disputed Material Facts ("DDMF"), the Diocese of San Joaquin was first organized as an unincorporated association under California law in 1961, with its own governing instruments consisting of a Constitution and Canons adopted at that time, and amended from time to time ever since. (DDMF ¶¶ 67-68). After so organizing, the General Convention of the plaintiff Episcopal Church approved its admission as a Diocese of that Church (DDMF ¶ 67), with its Constitution and Canons in the form then adopted (DDMF ¶¶ 67-68). Included in the provisions so approved by the General Convention was the power of the Diocese to amend its Constitution, stated in the following language:

Proposed amendments to the Constitution shall be introduced at least one day previous to the action and shall be reported on by the Committee on Canons. The consent of Convention shall be evidenced by a majority of both orders voting separately and shall be voted upon by two successive Annual Conventions before taking effect.

(Article XV; DDMF ¶ 69.) Although subsequently revised in procedural details, this provision remains substantively unchanged, and as such was in effect on December 8, 2007 (DDMF ¶ 70). Prior to that date, the Diocesan Convention had voted on a number of occasions to amend the Constitution in various respects, and always such amendments had taken effect without any condition (other than their passage in accordance with the above language), including a condition that they be approved beforehand (or afterwards) by the General Convention of the Episcopal Church (DDMF ¶ 71).

Moreover, on October 29, 2005 the annual convention of the (non-party) Diocese of San Joaquin approved on its second successive consideration an amendment which modified its accession to the Constitution and Canons of the Episcopal Church, as follows:

The Diocese of San Joaquin accedes to and/or incorporates the terms and provisions of the Constitution of the Episcopal Church into the terms and provisions of the Constitution of the Diocese of San Joaquin to the extent that such terms and provisions, and any amendments thereto, adopted by the authority of the General Convention, are not inconsistent with the terms and provisions of the Constitution and Canons of the Diocese of San Joaquin, as amended from time to time, and ratified by any Diocesan Convention duly called and held.

(DDMF, ¶ 72). Said change to the mode of accession by the Diocese, accomplished over a two-year period, was widely known (and criticized in some quarters) but did not meet with any objection from the 2006 General Convention of plaintiff Episcopal Church. (DDMF, ¶ 73).

By 2007, the unincorporated (non-party) Diocese of San Joaquin included some 47 parishes and missions in the counties of San Joaquin, Alpine, Stanislaus, Calaveras, Mono, Merced, Mariposa, Tuolumne, Madera, Fresno, Kings, Tulare, Kern and Inyo (DDMF ¶ 74). Its headquarters and diocesan staff---including its bishop---were, and still are, in Fresno (DDMF ¶ 75). When it met in Fresno for its annual convention in December 2007, there was a quorum present for business, which included the adoption of amendments to the Diocesan Constitution, Arts. I, II, III and XII. Each passed by a more than two-thirds majority in each order, lay and clergy. The amendment approved to Art. II deleted the provision by which the Diocese acceded to the Constitution ofthe Episcopal Church. The vote on that amendment was counted twice by separate tellers; the combined vote was 89% in favor of disaffiliation from the Episcopal Church (DDMF ¶ 76).

Following the vote on December 8, 2007, seven of the parishes and their associated clergy withdrew from the unincorporated association, the Diocese of San Joaquin which had approved the amendments, and reorganized by themselves as a new and different association, with different headquarters and different people leading them. They did so with Bishop Schofield's blessing, and without any opposition from him or from the Diocese itself (DDMF ¶ 77). They established their headquarters in Stockton, and held a meeting in Lodi on March 29, 2008 at which they elected the Rt. Rev. Jerry A. Lamb to lead them (DDMF ¶ 78). The present lawsuit, filed by Bishop Lamb, the Episcopal Church, and the unincorporated association which they call the "Diocese of San Joaquin," was filed on April 24, 2008 (DDMF ¶ 79).

However, plaintiffs failed to join in their lawsuit the Diocese headquartered in Fresno, and which had actually passed the measures here challenged, as a party. That Diocese continues to operate as it did before, with three-quarters of the parishes and missions it had earlier, with its diocesan headquarters and staff in Fresno, and with practically the same minute books, accounting records, and other diocesan property as it had when it passed the disputed measures in December 2007. (DDMF ¶¶ 80-81).

The third affirmative defense in the answer herein is that "The court lacks jurisdiction to adjudicate all causes of action ... because of the absence of indispensable parties." (Emphasis supplied.) The present motion to adjudicate the first cause of action thus cannot be granted because it fails completely to dispose of that affirmative defense to that cause of action, as required by subdivision (f)(1) of section 437c of the California Code of Civil Procedure.

Plaintiffs cannot escape that basic fact by pleading and by attempting to demonstrate, in their moving papers, that they are recognized by the plaintiff Episcopal Church as "the Diocese of San Joaquin." For whatever the plaintiff "diocese" may be in the eyes of the Episcopal Church, it cannot make itself into that which it is not under California law: it is not in law the same unincorporated association that gathered in Fresno on December 8, 2007 and voted on the amendments which plaintiffs now seek to challenge. That unincorporated association continues to exist under California law, and indeed is still governed by the same majority that governed it on December 8, 2007. It would turn the law of unincorporated associations on its head if a minority of its members could split off and then call themselves the association from which they severed themselves, and purport to undo all its acts. It would also fundamentally transgress the principles of due process.

Nor can plaintiffs escape the requirements of due process by responding that they have joined Bishop Schofield as a representative of the non-party Diocese. In the first place, the complaint names him in his individual capacity, and refuses to acknowledge that he is the current bishop of any diocese (Second Amended Complaint, ¶ 5). Another reason why such a response would be inadequate is that Bishop Schofield is not a "member" of the non-party Diocese. He is its executive officer (DDMF ¶ 82), and in California associations are sued in their own name (Code Civ. Proc., § 369.5). Furthermore, under Corporations Code section 18605, an officer (or member) of an unincorporated nonprofit association is not liable for obligations of the association itself.

As a general principle, the relations between and among a voluntary association and its members are defined by the association's articles and bylaws, and are governed by ordinary principles of contract law. (Dingwall v. Amalgamated Ass'n of Street Railway Employees of America (1906) 4 Cal. App. 565, 569; Smith v. Kern County Medical Association (1942) 19 Cal. 2d 263, 271.) If plaintiff Episcopal Church, a voluntary association of Dioceses, wants to claim that the (non-party) Diocese breached some contractual provision of its membership, it should act like any other party to a contract and name the breaching party, and spell out the provisions of the contract that it wants enforced by order of the court. Here it has not done so, but has created a new voluntary group to its own liking, and proceeded on the theory that the new group could automatically succeed to the title and assets of the old group without its bothering to sue the old group. Such a way of proceeding violates elementary due process, and is not to be allowed. Plaintiffs' motion for summary adjudication cannot be granted as this case is framed, and should be denied.

D. Plaintiff"Diocese" Has No Connection to the Non-Party Corporation Sole

By the same token, plaintiffs lack the standing to claim that they have the right to file any amendments to the articles of the (non-party) corporation sole, which is under the authority of the unincorporated association which they have failed to join as a party defendant. Plaintiffs admit in their Memorandum of Points and Authorities that the unincorporated diocese itself, and not the Episcopal Church, is the "religious organization" which authorizes its creation for the purposes of the Corporations Code---indeed, they express it in the first heading to the second section of their argument, on page 12: "The Religious Organization Underlying the Corporation Sole Is the Episcopal Diocese of San Joaquin" (emphasis added). Plaintiffs want again to cite the fact that they are recognized as a "diocese" by the Episcopal Church as supposedly conclusive and binding on the courts, but that way of stating the matter assumes the very legal question that is in dispute here: what action, supposedly taken by the non-party unincorporated Diocese in December 2007, could have deprived it, under California law, of the authority which, by statute, it exercised over the corporation sole in question on that date?

Plaintiffs once again are trying to use a subterfuge, by naming as one of their number an entity they call "the Protestant Episcopal Bishop of San Joaquin, a corporation sole." As an unincorporated religious association, plaintiffs have every right under California law to form a corporation sole to manage their temporal affairs, and to call it any name they please, so long as it is not confusing with other already established corporate names. But is that corporation sole the same corporation sole that has its headquarters in Fresno, just as it had them on December 8, 2007?

As shown in Defendants' Separate Statement, the indisputable answer to that question is "no." The corporation sole of which Bishop Schofield is the incumbent, and of which he has been the incumbent since 1992 (DDMF ¶ 85), has (1) its principal office in Fresno (DDMF ¶ 86), (2) its corporate books and seal in Fresno (DDMF ¶ 87), and has (3) a unique California Corporations identifying number, assigned by the Secretary of State when it was organized under State law, which is C0066488 (DDMF ¶ 88). The plaintiff "diocese," being a new unincorporated association that split off from the old one, no longer has anything to do with that corporation sole. Thus whatever papers it may file with respect to its own corporation sole, it cannot claim any authority under the governing instruments of the association it left to act on its behalf. (The Secretary of State has no means of verifying the authenticity ofpapers submitted to that office in the proper outward form and appearance for filing. Thus plaintiffs cannot bootstrap themselves into the incumbency of the defendants' corporation sole, No. C0066488, by filing papers with the Secretary of State bearing that identifying number.)

The plaintiffs want an adjudication that certain earlier amendments made to the articles of corporation number C0066488 are void and without any legal effect. But not only have they failed to join the corporation in question as a party defendant, they themselves, by their own admissions, are no longer part of the unincorporated religious association which underlies that corporation sole---and which underlay it on December 7, 2007, on December 8, 2007, and on every single day since the convention on those dates (DDMF, ¶¶ 89-95).

Before plaintiffs could be heard to challenge the validity of those amendments to the corporate articles, they have to follow minimum norms of due process and join the corporation itself as a defendant, as well as the unincorporated association that adopted them. So to hold is not to get entangled in any dispute about the effect of Church constitutions or canons, or the authority to depose or to elect bishops; it is basic secular law of California. An unincorporated association under California law has the power to amend its governing documents in accordance with their terms (Corp. Code section 18340), and so does a corporation sole, with the underlying association's authorization (Corp. Code section 10010). Plaintiffs' challenges to that power, based on claims of contract between the association and the Episcopal Church, cannot be heard without making the association a party to the lawsuit. And without the association or its associated corporation sole as a party, no claims may be adjudicated as to the validity of amendments made to the articles of the corporation sole.

E. Plaintiffs Fail to Show They Are Who They Claim to Be and Thus Lack Standing to Sue

Plaintiffs' right to relief from this Court fails for yet another basic reason: their own submitted facts and admissions in this case demonstrate that they cannot be who they claim they are---namely, a legitimate diocese of the Episcopal Church, with a duly installed bishop at its head. For that reason, they have failed to prove an essential element of their case. They lack the standing to sue in the capacities which they have alleged.

1. The Diocese of San Joaquin Lawfully Amended Its Constitution in 2007

Plaintiffs admit that at least until December 8, 2007, there was a duly constituted Diocese of San Joaquin in existence from 1961 onward which was a member of the Episcopal Church, and that associated with it was a properly authorized corporation sole, with offices at Fresno (DDMF ¶¶ 96-97). The documents produced by plaintiffs also demonstrate two key facts: (1) that the aforesaid Diocese was under no limitation on its ability to amend its governing instruments in any way it chose; and (2) that the Episcopal Church's General Convention not only approved the Diocese's ability so to amend its Constitution, but made no objection on any of the number of occasions when it did so (DDMF ¶¶ 98-100). One of those amendments approved without any objection made by the Episcopal Church modified the accession clause in Article II of the Constitution, so as to express in no uncertain terms that the Diocesan Constitution and Canons were paramount to their national counterparts (DDMF ¶¶ 101-102).

Pursuant to its powers of amendment, the Diocese in 2006 and 2007 amended Article II one more time to remove any accession to the Constitution of the Episcopal Church whatsoever, and approved related amendments (DDMF ¶ 104). The amendments were approved by overwhelming majorities of almost 9-1, which were counted twice. In response, just seven of the Diocese's parishes who dissented from the vote decided to leave, and to reorganize on their own. They did so with Bishop Schofield's blessing (DDMF ¶¶ 104-106). Now they want this Court to take as a proven fact that they are entitled (a) to "reverse" the votes of the majority; (b) to claim that they are a legitimate diocese of the Episcopal Church, without having gone through any of the formalities which, as they spell out at length in their Complaint, the original Diocese had to do; (c) to have their leader installed as the incumbent of the corporation sole in Bishop Schofield's place; and (d) to take possession and control of all of the property and assets which are in Bishop Schofield's hands, in trust for the majority that voted to withdraw. (Remember, the departing parishes were allowed to take their own property with them; what they claim is all the property that is in trust for the remaining parishes and missions.)

If corporate democracy is to mean anything at all, it must mean this: when the majority of the voting power of a California unincorporated association votes in favor of a result, and nothing in the governing documents of the entity forbids it, the result should be valid. Any minority of members of that entity then have two choices. They can abide by the decision of the majority, or they can leave. What they cannot do is withdraw to a new location, purport to hold their own "re-vote" in disregard of the rules governing call, notice, quorum and majority rule, and then enlist the Court's assistance to seize the property and corporate machinery of the entity in question.

Yet, that is precisely what the plaintiffs contend for in this lawsuit. Plaintiffs assert that because the legal entity in question is religious in character, the ordinary corporate formalities do not apply. Through plaintiffs' looking glass, all is reversed: disgruntled minorities, not democratic majorities, rule corporations; and corporate outsiders can claim "ecclesiastical authority" to manipulate the secular courts into seizing property and assets of the entity in question without having to prove such "ecclesiastical authority" actually exists.

There is no support for these fantasies in California law. To the contrary, the Legislature has enacted a comprehensive Corporations Code that makes clear that religious entities are real, bona fide legal persons with all the rights of secular corporations. Plaintiffs seek to disregard this body of law through judicial action, by telling courts that their post-facto ecclesiastical fiats must be "deferred to" under the U.S. Constitution. While it is true civil courts may not second-guess a church's religious doctrine, this is a far cry from allowing a church to subvert the Corporations Code and approved associational by-laws under the smoke screen of "ecclesiastical authority" that cannot be shown to even exist.

2. Plaintiffs Did Not Follow the Procedures Required to Convene a Special Convention of the Diocese of San Joaquin.

To be entitled to the relief they request from this Court, the plaintiff "diocese" must demonstrate that it is a duly qualified and admitted member Diocese of the plaintiff Episcopal Church, and that the plaintiff Bishop Lamb is its bishop in that Church. Plaintiffs' sole claim to that status is based upon a supposed "special meeting" of the Diocese which was called in Lodi on March 29, 2008, at which the plaintiff "diocese" supposedly transacted the necessary business required to transform itself into an Episcopal Diocese and to place itself under an Episcopal Bishop.

The principal problem with this position is that while plaintiffs claim to have followed the Constitution and Canons both of the Episcopal Church and of the Diocese of San Joaquin, their own evidence shows that they utterly failed to do so. There is no admissible evidence presented demonstrating that a proper call, notice and quorum occurred to conduct the business that allegedly took place. Next, there is no admissible evidence presented showing what resolutions or other business took place at the special meeting. Plaintiffs offer only hearsay accounts and unauthenticated and unofficial documents as their proof.

Plaintiffs' first difficulty is this: they admit that the call for the notice of special meeting was not given, as the Diocesan Constitution plainly requires, by the "Ecclesiastical Authority" of the Diocese of San Joaquin (Compare DDMF ¶ 110 with PUMF ¶ 58). And yet, since plaintiffs do not claim to have "deposed" Bishop Schofield until March 12, 2008 (PUMF ¶ 55), they cannot escape the fact that, despite having been "inhibited" from performing ecclesiastical---but not administrative, or temporal---functions on January 11 (PUMF ¶ 53), Bishop Schofield was still the Bishop of the Diocese of San Joaquin, and its Ecclesiastical Authority, on February 28 (PUMF 56; DDMF ¶¶ 107-108). It follows that the call for the notice was not lawful to convene a Special Convention under the Constitution of the very Diocese that plaintiffs claim to have constituted on that day when they met!

Next, notice was defective. The Diocesan Constitution requires that at least thirty days' notice be given of any special Convention, and that such notice be given by the Secretary of the Convention, in the form of a circular mailed to all the clergy and parishes of the Diocese, upon authorization by the Bishop of the Diocese (or, in the event of his inability to do so, by the Diocesan Standing Committee). (See DDMF ¶ 110.) The notice itself was undated and there is no admissible evidence presented showing when the notice was given, by whom the notice was given, and to whom the notice was given. (See Declaration of the Rev. (Canon) Mark Hall, Ex. 9.) Whether all voting members of the Diocese were given notice is a complete mystery. (See, Corp. Code, § 18015.)

Next, there is no evidence that a qualified quorum was present at the special meeting so that any business could be conducted. Assuming plaintiffs were conducting themselves in accordance with the Diocesan Constitution and Canons then in effect, documentation reflecting a quorum and who comprised that quorum would be appended to the official Journal of Convention. (See Declaration of The Rev. Gordon Kamai in Opposition to Motion for Summary Adjudication", ¶¶ 10-13 [describing procedural rules of Convention].) No such evidence is offered for the reason that no quorum existed at the special meeting on March 29, 2008.

(Plaintiffs will claim in response that those present at the meeting "waived" all defects in the notice, but it is not the 10% or so who were present that the notice requirements were enacted to protect; it is the 90% who did not receive adequate notice, and who were not present, who cannot be considered to have consented to the meeting going forward. Plaintiffs further claim to possess an ecclesiastical wand under New v. Kroger (Oct. 21, 2008 No. D051120) _Cal. App. 4th _. However, this case could not be cited when plaintiffs filed their moving papers and cannot be cited now. See, Rules of Court, rule 8.1115. Even if plaintiffs could cite the case, it would be of no help to them on this motion. [Ed. note: Since this was written, the California Supreme Court ordered that the decision in New v. Kroeger be republished, and so it is once again citable. But for the reasons discussed here, it is not relevant to any of the issues on the San Joaquin motion.])

Without a constitutionally adequate call, notice, and quorum, the actions taken by the minority at that meeting cannot, under California law, be considered the actions of the (non-party) Diocese of San Joaquin. (See, Corp. Code, § 18330.) Therefore, the plaintiff is no "diocese" of the Episcopal Church, and plaintiff Jerry Lamb is not the bishop of any Episcopal Diocese, either.

3. Plaintiffs Cannot Show They Followed the Procedure Required to Become an Episcopal Diocese with a Bishop.

Finally, the notice as given on February 28, 2008 was for a different entity, called "the Episcopal Diocese of San Joaquin", which was expressly stated at the time of the notice to have "no Bishop" at all (Hall Declaration, Ex. 9). As just noted, the (non-party) Diocese of San Joaquin did have a bishop on that date, who the plaintiffs assert was "removed" on March 12, 2008. Thus, can plaintiffs claim that they lawfully organized as that entity, "the Episcopal Diocese of San Joaquin", on March 29?

Maybe they could, indeed, because California laws allows any two or more members to come together to form an unincorporated association (Corporations Code, section 18035). Such a gathering, however, would not automatically make a diocese of the plaintiff Episcopal Church, in accordance with its Constitution and Canons, as plaintiffs themselves have been at pains in their motion papers to point out. The principal requirement which plaintiffs have not met is to receive the consent of the Episcopal Church's General Convention to become admitted as a member Diocese, as they spell out in PUMF ¶¶ 12 and 32. And the reason why they cannot prove they have received General Convention's consent is that plaintiffs admit that General Convention meets only once every three years, and it is not due to meet again until the summer of 2009 (DDMF ¶¶ 114-115).

4. Plaintiffs Are Simply Not the ''Persons'' in the Law They Claim to Be.

However, plaintiffs themselves do not claim to be a new Diocese of the Episcopal Church; they claim instead to be the only lawful successor of the Diocese which they have failed to join as a party in this case. This contention fails to recognize that unincorporated associations are real, separate legal entities under California law, cognizable by civil courts, with their own governing documents (Corp. Code, § 18008), with the ability to "acquire, hold, manage, encumber, or transfer an interest in real or personal property" (id., § 18105), and with the capacity to sue and be sued, all in their own name (Code of Civil Proc., § 369.5). An unincorporated association is governed by majority vote of its members, which vote may include amendment of the governing documents. Member voting is regulated and safeguarded by rules governing notice, quorum and majority vote. (Corp. Code, §§ 18330, 18340.)

Similarly, corporations sole are real cognizable civil entities with all the powers of natural persons. (Corp. Code, § 10007.) The articles must provide how the incumbent of the corporation sole is to be selected, and those articles may be amended with the consent of "the religious organization governed by the corporation." (Id., § 10010.)

Nothing in any of these statutes indicates that the California Legislature intended to give religious corporations and associations anything less than the full benefit of legal corporate personhood. Under California law, corporations and associations are governed by a majority of their directors or members, to the same extent as for-profit corporations.

The primary barrier to plaintiffs' present motion for summary adjudication is that they cannot show that they constitute, in law, the persons they claim to be---a duly admitted diocese of the Episcopal Church, with a duly installed bishop at its head. They have followed neither California law nor their own internal governing instruments in arriving at where they allege they are. Plaintiffs fail to demonstrate and establish, with competent and admissible evidence, that their purported meeting on March 29, 2008, was called, noticed, and had a quorum present to conduct the business ofthe Diocese of San Joaquin, all as required by the governing instruments which they made their own, and by California corporate law. This Court may properly require them to make that demonstration before proceeding. (See, e.g., Singh v. Singh (2004) 114 Cal.App.4th 1264, 1283 [court had jurisdiction to review whether religious corporation adhered to its own internal rules and bylaws; "the belief 'that any conduct can be made a religious rite and by the zeal of the practitioners swept into the First Amendment' has been consistently repudiated," citing In re Metropolitan Baptist Church of Richmond, Inc. (1975) 48 Cal. App. 3d 850, at 858; cf. Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1083 ["corporate outsider cannot bring suit to challenge a corporation's management and control"], citing 9 Witkin, Summary of Cal. Law, Corporations § 127, p. 626 (9th ed. 1989).)

Plaintiffs ask the Court to disregard straightforward notions of corporate law---e.g., call, notice, quorum, majority vote and compliance with by-laws---because they are somehow subservient to ecclesiastical fiats of unknown substance and unproved origin. The real Diocese of San Joaquin, the one not named as a party in this action, has two characters: a religious existence as a church, and also a legal existence as a California unincorporated association. However, as the cases just cited illustrate, that does not mean that a civil court violates the First Amendment by dealing, as only it can, with the latter aspect.

No better statement can be found as to the correct approach in this setting than that of the Alabama Supreme Court, when it said: "The courts in this state have long recognized the concept that, whenever there is an incorporated church, there exist two entities ... [T]here is a spiritual church and a secular legal corporation, each separate though closely connected. Each entity has a separate purpose. Questions involving the spiritual church are ecclesiastical in nature, and civil courts cannot decide any questions concerning this entity. In contrast, the secular corporate entity is formed by the state and performs civil functions, e.g., holding title to church property, and is in no sense ecclesiastical in its function; therefore, civil courts can decide questions concerning the corporation." (Trinity Presbyterian Church v. Tankersley (Ala. 1979) 374 So.2d 861,866 (italics added); accord, Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, at 1083.)

In short, plaintiffs claim to have rigorous Constitutional provisions and canon laws by which the entity they once recognized as the Diocese of San Joaquin was established and qualified as a constituent member. Now they want this Court to ignore all those same provisions and accept, just on hearsay and the authority of "trusted associates", that they are in law the only entity with the right to call itself by that title, and to have full authority over California corporation number C0066488, a religious corporation sole which is in fact still under the control of a non-party religious association, the (Anglican) Diocese of San Joaquin. That is, and never has been, the law of this State.

For all of the foregoing reasons, a disgruntled minority of members of a religious corporation or unincorporated association has no power to withdraw from the entity, revoke prior resolutions, and then claim to be the "true" or "real" entity itself. More precisely, such a minority has no standing to present claims in the name of the majority, under California law applicable to nonprofit associations.

F. In Connection with Their Claim to Remove a Trustee, Plaintiffs Have Failed to Name the Trust Beneficiaries.

As a final defect of the present motion, defendants point out that not only do plaintiffs seek to remove the incumbent of a non-party corporation sole, but they apparently also seek by this motion (although it is not sufficiently clear, for the reasons stated above) Bishop Schofield's removal with respect to his corporation's holding of certain parish and mission properties in express trusts for those parishes and missions. (They do this by asking that all of the property held by the non-party Diocese be turned over to the possession and control of plaintiff Jerry Lamb---see Second Amended Complaint, ¶ 5 of the Prayer for Relief at p. 32. Much of the Diocesan property is held by the corporation sole in express trust for specific parishes and missions [DDMF ¶ 81].)

It is elementary trust law that a trustee may not be removed from office without notice to all of the beneficiaries of the trust. (Prob. Code, § 17203.) Plaintiffs, needless to say, have not joined any beneficiaries of these particular trusts whatsoever, and this constitutes another ground upon which to deny their motion for summary adjudication (assuming it can be construed so as to apply to the property held in trust for the parishes and missions of the Diocese).

III. CONCLUSION

Plaintiffs have failed on both multiple procedural grounds, as well as upon serious substantive ones as well, to comply with the mandatory statutory requirements for summary adjudication of a separate cause of action. As this court noted (in the tentative ruling cited on page 5 above), "Strict compliance with the procedural and evidentiary requirements for a motion for summary judgment cannot be avoided [citing Brantley v. Piasaro (5th Dist. 1996) 42 Cal. App. 4th 1591, 1607]." Non-compliance in anyone of the procedural respects discussed above would ordinarily be fatal to a motion, and the cumulative effect of all of the defects described cannot be overcome.

Moreover, for all of the substantive reasons stated in section II above, plaintiffs "cause of action for declaratory relief" cannot be summarily adjudicated. Its motion to do so should be denied.

[END OF MEMORANDUM IN OPPOSITION TO MOTION]