"PROTECTION OF THE HOLY VIRGIN,", ET AL. VS OUR CHURCH BUILDING, INC., A CALIFORNIA NONPROFIT RELIGIOUS CORPORATION

Tentative Rulings

Case Number: *******9423 Hearing Date: January 10, 2022 Dept: 32

“protection of the holy virgin,” the russian orthodox church, et. al., Plaintiffs, v. OUR CHURCH BUILDING, INC., et al., Defendants.	Case No.: *******9423 Hearing Date: January 10, 2022 [TENTATIVE] order RE: plaintiff the synod of bishops of the russian orthodox church outside of russia’s motion to tax costs

BACKGROUND

On May 28, 2021, Plaintiff the Synod of Bishops of the Russian Orthodox Church Outside of Russia (“ROCOR”) (the “Synod”) filed the operative First Amended Complaint (“FAC”) against Our Church Building, Inc. (“OCB”), alleging causes of action for: (1) declaratory relief and (2) constructive trust.

The Synod contends that OCB was formed to acquire church property and operates under ROCOR’s authority. (FAC 3, 42.) This action stems from OCB’s refusal to transfer three properties to ROCOR: (1) the “Church Property,” (2) “Russian Hall,” and (3) “Apartment.” Through this action, the Synod seeks declaratory relief that: (a) ROCOR owns all property held by OCB; (b) all property held by OCB is held in trust for ROCOR; and (c) OCB falls under ROCOR’s hierarchy. (FAC 63.) The Synod also alleges that because OCB is wrongfully withholding ROCOR’s property, that property is being held in constructive trust for ROCOR’s benefit. (FAC 72-73.)

On September 24, 2021, this Court denied the Synod’s motion for summary judgment, finding triable issues as to ownership of the properties and OCB’s status vis- -vis ROCOR’s hierarchy. On November 10, 2021, the Synod filed a request for dismissal without prejudice. On November 19, 2021, OCB filed a memorandum of costs totaling $13,176. On December 7, 2021, the Synod filed the instant motion to tax the following costs: (4) deposition costs of $6,256.55; and (13) translation costs of $5,429.50.

LEGAL STANDARD

The statutory scheme for cost recovery establishes three categories of trial preparation expenses: (1) one category allowable as a matter of right to the prevailing party (Code Civ. Proc., 1033.5, subd. (a)); (2) one category disallowable unless expressly authorized elsewhere by law (Id., 1033.5, subd. (b)); and (3) one category allowable or disallowable in the court’s discretion (Id., 1033.5, subd. (c)(4)). Even where costs are deemed allowable, such costs are only recoverable to the extent that they are (1) reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation and (2) reasonable in amount. (Id., 1033.5, subd. (c)(2)-(3).)

“In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face. ‘If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.’ [Citation.] Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29-30.)

DISCUSSION

a. Deposition Costs (Item No. 4)

Depositions costs are allowable as a matter of right. (Code Civ. Proc., 1033.5, subd. (a)(3)(A).) OCB’s memorandum claims deposition costs of $6,256.55. The Synod seeks to tax this down to $4,475.75, the amount the Synod paid. (Mtn. 1:25-27.) However, the additional amount paid by OCB stems from the cost of expedited transcripts. OCB’s counsel avers that these costs were reasonably necessary to meet the filing deadline for its opposition to the Synod’s MSJ. (Seabolt Decl. 15.) There is no dispute over the dates that the depositions took place or the due date of the opposition brief. (Mtn. 2:1-17; Opp. 3:16-4:7.) The depositions at issue took place on July 23 and 26, while OCB’s opposition brief was due on August 4. (Ibid.) Thus, it would appear that the expedited costs were necessary. OCB has substantiated these costs with invoices. (Seabolt Decl., Ex. C.)

OCB claims that the deposition costs actually amounted to $8,540.35 and were miscalculated in its memorandum. (Opp. 3:26-27.) However, OCB is not entitled to recover costs beyond those stated in its memorandum.

In sum, OCB is entitled to the amount stated in its memorandum, $6,256.55.

b. Translation Costs (Item No. 13)

Translation fees are neither expressly allowed nor prohibited. Thus, they are recoverable at the Court’s discretion. (See Code Civ. Proc., 1033.5, subd. (c)(4) [“Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion”].) OCB claims document translation costs of $5,429.50.

The Synod first argues that the costs should be stricken entirely because they are disallowed. (Mtn. 4:15-26.) The Synod cites to Section 1033.5, subdivision (a)(12), which expressly allows court interpreter fees for indigent persons. However, this does not mean that document translation fees are disallowed. The Court has discretion over this cost. (See Code Civ. Proc., 1033.5, subd. (c)(4).)

Additionally, the Synod argues that the claimed amount should at least be offset by the amount that the Synod has already paid to OCB pursuant to an agreement to split the translation costs. (Mtn. 5:3-9; Klein Decl., Ex. 2.) On April 21, 2021, OCB sent the Synod a translation bill totaling $6,185. (Klein Decl., Ex. 3.) Accordingly, the Synod paid half, or $3,092.50. (Id., 12.) However, OCB argues that it incurred total translation costs of $8,532 and already applied the offset to arrive at the amount stated in its memorandum, $5,439.50. (Opp. 9-14.) Although the parties agreed to split one translation cost, this does not preclude OCB from recovering further costs incurred throughout the litigation. The correspondence does not indicate that the parties agreed to split all translation costs; the email chain is with regards to one set of documents. (See Klein Decl., Ex. 2.) OCB has substantiated its total costs by itemizing the translated documents and providing invoices. (Seabolt Decl. 6-10, Ex. A.)

The Synod argues that OCB should not recover the cost of translating all documents, including ones that were not used in the case or ones that could have been translated by the parties themselves. (Reply 1:26-2:3.) However, the Synod provides no support indicating that anyone besides the translator OCB used could have adequately translated the documents. The Synod also does not explain which documents were unnecessarily translated or how much the costs should be taxed as a result.

Thus, OCB is entitled to the amount claimed in its memorandum, $5,439.50.

CONCLUSION

The Synod’s motion to tax costs is DENIED.

b'

Case Number: *******9423 Hearing Date: September 24, 2021 Dept: 32

“protection of the holy virgin,” the russian orthodox church, et. al., Plaintiffs, v. OUR CHURCH BUILDING, INC., et al., Defendants.	Case No.: *******9423 Hearing Date: September 24, 2021 [TENTATIVE] order RE: plaintiff the synod of bishops of the russian orthodox church outside of russia’s motion for summary judgment

BACKGROUND

On May 28, 2021, Plaintiff the Synod of Bishops of the Russian Orthodox Church Outside of Russia (“ROCOR”) (the “Synod”) filed the operative First Amended Complaint (“FAC”) against Our Church Building, Inc. (“OCB”), alleging causes of action for: (1) declaratory relief and (2) constructive trust.

The Synod contends that OCB was formed to acquire church property and operates under ROCOR’s authority. (FAC ¶¶ 3, 42.) This action stems from OCB’s refusal to transfer three properties to ROCOR: (1) the “Church Property,” (2) “Russian Hall,” and (3) “Apartment.” Through this action, the Synod seeks declaratory relief that: (a) ROCOR owns all property held by OCB; (b) all property held by OCB is held in trust for ROCOR; and (c) OCB falls under ROCOR’s hierarchy. (FAC ¶ 63.) The Synod also alleges that because OCB is wrongfully withholding ROCOR’s property, that property is being held in constructive trust for ROCOR’s benefit. (FAC ¶¶ 72-73.)

The Synod now moves for summary judgment on its claims. The Court grants the Synod’s unopposed request for judicial notice. (Evid. Code., ;; 452, 453.)

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the plaintiff moving for summary judgment must satisfy the initial burden of proof by presenting facts to establish each element of the cause of action. (Code Civ. Proc., ; 437c, subd. (p)(1).) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Code Civ. Proc., ; 437c, subd. (p)(1).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

EVIDENTIARY OBJECTIONS

Neither party has filed objections that are compliant with the California Rules of Court. The objections are not numbered consecutively, are not referenced in the respective separate statements, and are not accompanied by a separate proposed order. (See Cal. Rules of Ct., rule 3.1354(b)-(c).) As such, the Court does not rule on these improper objections.

DISCUSSION

a. First Cause of Action for Declaratory Relief

“Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties . . . .” (Code Civ. Proc., ; 1060.)

The Synod’s claim for declaratory relief is predicated on its theory that OCB submitted itself to ROCOR’s authority and has thus always held property belonging to ROCOR. (FAC ¶¶ 40-61.) First, the Synod contends that “OCB’s legally cognizable governing documents repeatedly reflect a clear and unequivocal intention to exist as a ROCOR entity . . . .” (Motion 15:15-17; UMF No. 11.) Second, the Synod argues that “ROCOR’s governing religious canons indisputably mandate that all property, regardless of legal title, belongs to ROCOR and not the local parishes or other subordinate entities . . . .” (Motion 16:5-6.) Third, the Synod argues that because OCB has abandoned its purpose and is no longer recognized by the Synod, OCB must return the properties at issue. (Motion 16:9-16.)

To support its claim, the Synod cites to the California Supreme Court in Episcopal Church Cases (2009) 45 Cal.4th 467 (the “Church case”). In the Church case, a local church congregation and the general church disputed ownership of property after the local church disaffiliated from the general church. (Id. at p. 473.) The local church had sought and was granted permission from the general church to form as a parish. (Id. at p. 474.) The Court found that the local church agreed from the beginning of its existence to be part of the general church and to be bound by the general church’s governing instruments. (Id. at p. 489.) Those governing instruments clearly stated that the local parish owns local church property in trust for the greater church. (Ibid.)

To start, there are factual distinctions between the formation of the local church in the Church case and the formation of OCB. The Synod does not cite any evidence that OCB obtained permission to form as a local parish. Furthermore, when the local church in the Church case sought permission to form as a parish, it stated in writing that it “‘promise[d] and declare[d] that the said Parish shall be forever held under, and conform to and be bound by, the Ecclesiastical authority of the Bishop of Los Angeles, and of his successor in office, the Constitution and Canons of the [Episcopal Church], and the Constitution and Canons of the Diocese of Los Angeles.’” (Episcopal Church Cases, supra, 45 Cal.4th at p. 474.) There is no evidence of such a promise here, in writing or otherwise, from when OCB was formed.

Second, the language found in the governing documents from the Church case is not found in ROCOR’s or OCB’s governing documents. In the Church case, the general canons of the Episcopal Church provided that “‘All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church . . . .’” (Episcopal Church Cases, supra, 45 Cal.4th at p. 475 [emphasis added].) The Synod does not cite to any portion of ROCOR’s governing documents indicating that local parishes own property in trust for ROCOR, despite recognizing that such language was central to the Church case decision. (See Motion 14:1-3, 16:5-8.)

The Synod also cites to Kim v. The True Church Members of Holy Hill Community Church (2015) 236 Cal.App.4th 1435, 1449, where a local church with a purpose statement in its articles of incorporation similar to the one in OCB’s articles was found to be under the control of the national church. However, the court in Kim did not rely on the language of the local church’s articles of incorporation in coming to its decision or even discuss the articles of incorporation. The Synod’s reliance on Central Coast Baptist Assn. v. First Baptist Church of Las Lomas (2007) 171 Cal.App.4th 822 is equally unavailing because that case dealt with whether the local church had “de facto dissolved” or “ceased to function as a Southern Baptist Church” and must therefore return property to the larger church pursuant to a reversionary clause. This has no bearing on whether OCB was formed as a ROCOR entity, and there is no indication of a reversionary clause in OCB’s governing documents.

The Synod’s evidence is insufficient to preclude a triable issue over whether OCB subordinated itself to ROCOR. The provisions of OCB’s governing documents cited by the Synod could equally demonstrate that OCB was formed to collaborate with ROCOR without becoming a local parish subject to ROCOR’s religious hierarchy. (See UMF No. 11.) The Synod claims that OCB’s bylaws are “rife with references to the Parish’s bylaws.” (Reply 6:11.) However, the caselaw cited by the Synod does not stand for the proposition that mere references are sufficient to demonstrate subordination. In any case, OCB’s bylaws are not “rife” with references to the Parish’s bylaws. The Synod lists a total of six provisions (UMF No. 11), and only one of them mentions the “Parish’s bylaws,” but only in the context of stating that OCB will resolve issues not addressed in its bylaws in a manner consistent with the Parish’s bylaws. (RJN, Ex. 5 at ¶ 3.06.)

The Synod refers to a 2002 letter sent by OCB’s administrative board to Father Alexander Lebedeff of the Western American Diocese which states, “The Protection of Holy Virgin Russian Orthodox Church in Los Angeles, which was under the jurisdiction of the Diocese of Metropolitan Philaret, Russian Orthodox Church Outside of Russia, was incorporated as Our Church Building Inc. on September 29, 1964.” (Synod’s Ex. 14.) However, in the same letter, OCB stated that “[t]he properties of this Parish are under direct management of Our Church Building Inc.,” that “a Corporation is a separate entity,” and that the “properties are legally protected by Our Church Building Inc. and need not be a part of any trust.” (Ibid.) This at least raises a triable issue.

The Synod also does not address OCB’s evidence that OCB did not show subordination by adopting the Normal Parish By-Laws and that ROCOR never released a decree formally taking OCB under its jurisdiction. (See Def.’s Resp. to UMF No. 11.) OCB also cites to other portions of its governing documents indicating an intent to maintain the properties as a separate entity. (Ibid.) This creates a triable issue over whether OCB submitted to ROCOR’s authority.

b. Second Cause of Action for Constructive Trust

“One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner.” (Civ. Code, ; 2223.) “A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner.” (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990.) “[A] constructive trust may only be imposed where the following three conditions are satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it.” (Ibid.)

The Synod’s claim for constructive trust is based on the same theory that OCB submitted to ROCOR’s hierarchy. (See Motion 19:24-27.) Thus, there is a triable issue on this cause of action as well.

CONCLUSION

Plaintiff’s motion for summary judgment is DENIED.

“protection of the holy virgin”, the russian orthodox church, et. al., Plaintiffs, v. OUR CHURCH BUILDING, INC., et al., Defendants.	Case No.: *******9423 Hearing Date: September 24, 2021 [TENTATIVE] order RE: DEFENDANT our church building, inc’s motion for judgment on the pleadings

BACKGROUND

On May 28, 2021, Plaintiff the Synod of Bishops of the Russian Orthodox Church Outside of Russia (“ROCOR”) (the “Synod”) filed the operative First Amended Complaint (“FAC”) against Our Church Building, Inc. (“OCB”), alleging causes of action for: (1) declaratory relief and (2) constructive trust.

The Synod contends that OCB was formed to acquire church property and operates under ROCOR’s authority. (FAC ¶¶ 3, 42.) This action stems from OCB’s refusal to transfer three properties to ROCOR: (1) the “Church Property,” (2) “Russian Hall,” and (3) “Apartment.” Through this action, the Synod seeks declaratory relief that: (a) ROCOR owns all property held by OCB; (b) all property held by OCB is held in trust for ROCOR; and (c) OCB falls under ROCOR’s hierarchy. (FAC ¶ 63.) The Synod also alleges that because OCB is wrongfully withholding ROCOR’s property, that property is being held in constructive trust for ROCOR’s benefit. (FAC ¶¶ 72-73.)

On July 23, 2021, OCB filed the instant Motion for Judgment on the Pleadings against both causes of action asserted in the FAC based on failure to state a cause of action. The Court grants OCB’s request for judicial notice of: (1) the court decision in 35 Mass. App. Ct. 194 (1993), Case No. 92-P-392; and (2) OCB’s articles of incorporation. (Evid. Code, ;; 452, 453.)

LEGAL STANDARD

A motion for judgment on the pleadings may be made on the same grounds as those supporting a general demurrer, i.e., that the complaint fails to state facts sufficient to constitute a legally cognizable claim. (Stoops v. Abbassi (2002) 100 Cal. App. 4th 644, 650.) A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Cloud v. Northrop Grumman Corp. (1999) 67 Cal.App.4th 995, 999.) Judgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution. (Schabarum v. Calif. Legislature (1998) 60 Cal.App.4th 1205, 1216.)

DISCUSSION

a. First Cause of Action for Declaratory Relief

A plaintiff’s declaratory relief complaint must specifically allege that an actual, present controversy exists, and must state the facts of the respective claims concerning the disputed subject matter. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) The complaint will be found sufficient if it sets forth facts showing the existence of an actual controversy relating to the parties’ legal rights and duties and requests the court to adjudge these rights and duties. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606; Qualified Patients Ass’n v. City of Anaheim (2010) 187 Cal.App.4th 734, 751.) Thus, a complaint is sufficient if it shows an actual controversy; it need not show that plaintiff is in the right. (Lockheed Martin Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, 221 [disapproved on other grounds].)

Here, the Synod alleges that a controversy exists because the Synod asserts that ROCOR has the right to all property being held by OCB through trust and subordination to ROCOR’s hierarchy, while OCB disputes this by asserting that it alone owns the property, that there is no trust, and that OCB is not subject to ROCOR’s hierarchy. (FAC ¶¶ 63-64.) OCB takes issue with the following portions of the Synod’s request for declaratory relief: (b) that the property being held by OCB is held in trust for ROCOR; and (c) that OCB falls under ROCOR’s hierarchy. (Reply 3:24-4:5; FAC ¶ 63.)

OCB contends that the Synod is not entitled to a declaration that the property is being held in trust because the Synod fails to allege an express written trust. (Motion 13:11-14.) OCB cites caselaw where courts found a trust to exist because there was a writing to that effect in bylaws, articles of incorporation, or deeds. (See Episcopal Synod Cases (2009) 45 Cal.4th 467; Protestant Episcopal Synod v. Barker (1981) 115 Cal.App.3d 599.) However, “[a] cardinal rule of pleading is that only the ultimate facts need be alleged . . . In a declaratory relief action, the ultimate facts are those facts establishing the existence of an actual controversy.” (Ludgate, supra, 82 Cal.App.4th at p. 606.) A plaintiff need not allege facts that would entitle it to a favorable declaration. (Ibid.) Here, OCB argues that because an express written agreement is necessary for the formation of a trust, the Synod must allege the existence of this writing in the FAC. This is not the standard for pleading a cause of action for declaratory relief. Even if OCB is correct that an express writing is necessary to form a trust, that only goes to the Synod’s ability to ultimately succeed in its declaratory relief claim. But it does not mean that the Synod has failed to plead a declaratory relief claim.

OCB also argues that the Synod is not entitled to a declaration that OCB falls under ROCOR’s hierarchy because such a declaration means nothing in and of itself. (Reply 3:24-4:5.) OCB contends that the Synod merely seeks this declaration to establish a foundation for its claim that OCB is holding the properties in trust. (Ibid.) OCB acknowledges that whether the properties are being held in trust does go to the “rights and duties” between the parties and is thus a proper subject for declaratory relief. (See Reply 4:1-2.) However, if a determination on whether OCB falls under the Synod’s hierarchy affects whether a trust exists between the parties, then the former does affect the “rights and duties” of the parties. The Synod has alleged that “[a] judicial declaration is necessary and appropriate at this time under the circumstances so that all parties may ascertain their rights with respect to one another under their various related governing documents. This is particularly important since OCB is presently attempting to evict ROCOR’s Parish from the Russian Hall and the Synod Property and another lawsuit is being litigated between OCB and the Parish with respect to their rights and obligations with one another.” (FAC ¶ 66.) Therefore, the Synod has sufficiently pled a cause of action for declaratory relief.

b. Second Cause of Action for Constructive Trust

Creating a constructive trust requires satisfying three elements: the existence of a res (property or some interest in the property); the plaintiff’s right to that res; and the defendant’s acquisition of the res by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act. (Optional Capital, Inc. v. DAS Corp. (2014) 222 Cal.App.4th 1388, 1401.)

OCB’s only challenge to this cause of action refers back to the Synod’s failure to allege an express trust. (See Motion 19:13-17 [“The first cause of action failing means this second cause of action cannot prevail”].) However, as established above, the first cause of action does not fail. The Synod has alleged the elements of constructive trust. (FAC ¶¶ 68-73.)

c. Collateral Estoppel

“Under California law, collateral estoppel applies only when each of the following conditions are met: ‘First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.’” (American Continental Ins. Co. v. American Casualty Co. (2001) 86 Cal.App.4th 929, 943 [internal citations omitted].)

OCB argues that the Synod is collaterally estopped from litigating whether ROCOR is hierarchical because the issue was adjudicated in a previous dispute involving the Church in Massachusetts, Primate and Bishops’ Synod of Russian Orthodox Church Outside Russia v. Russian Orthodox Church of Holy Resurrection, Inc., 35 Mass. App. Ct. 194 (1993) (“Holy Resurrection”). The appeals court in Holy Resurrection affirmed a trial court finding that “the parish ‘was hierarchical in terms of internal administration, discipline and matters of faith,’ but ‘congregational as far as the control and use of its property’ . . . .” (RJN, Ex. A at p. 3.)

However, Holy Resurrection is a decision from a Massachusetts court applying Massachusetts law. OCB does not cite a single case from California recognizing that churches can be hierarchical in certain respects and congregational in others. “[T]he doctrine of collateral estoppel cannot be utilized to bind a California litigant to a principle of law adopted in the prior foreign court litigation which is contrary to the law of California; nor can it be utilized to preclude a party from litigating a novel issue of law in California, merely because that party had failed to persuade the courts of another state on the legal wisdom of its position.” (American Continental, supra, 86 Cal.App.4th at p. 945.)

OCB contends that the concept of a “mixed” church originates from the U.S. Supreme Court decision in Jones v. Wolf (1979) 443 U.S. 595, 619. (Reply 10:9-20.) However, while the Court in Jones identified the distinction between hierarchical and congregational churches, it does not stand for the proposition that a church can be mixed. The appeals court in Holy Resurrection clearly relied on Massachusetts law for that contention. (See RJN, Ex. A at p. 4.) OCB argues that the lack of California law on this issue does not mean that the mixed approach contradicts California law. (Reply 10:19-20.) However, it also does not mean that the mixed approach is in line with California law. Therefore, collateral estoppel does not bar the Synod’s claims.

CONCLUSION

Based on the foregoing reasons, OCB’s motion for judgment on the pleadings is DENIED.

“protection of the holy virgin,” the russian orthodox church, et. al., Plaintiffs, v. OUR CHURCH BUILDING, INC., et al., Defendants.	Case No.: *******9423 Hearing Date: September 24, 2021 [TENTATIVE] order RE: DEFENDANT our church building, inc.’s motion for summary adjudication

BACKGROUND

Plaintiffs “Protection of the Holy Virgin,” the Russian Orthodox Church (Church) and Father Viktor Tseshkovsky (Tseshkovsky) (collectively, Plaintiffs) commenced this action against Our Church Building, Inc. (OCB) on December 24, 2018. Plaintiffs’ operative pleading is contained in two documents: the First Amended Complaint (FAC) filed on February 21, 2019 and a First Supplemental Complaint (FSC) filed on October 9, 2019. Both pleadings assert causes of action for (1) specific performance by the Church against OCB, (2) declaratory relief by the Church against OCB, and (3) declaratory relief by Tseshkovsky against OCB. The FSC alleges in pertinent part as follows.

The Church is a Russian Orthodox church that was first incorporated in 1954. Over time, it grew into a larger church and needed to purchase property sufficient for the Church’s practice of religion. In 1964, OCB was formed. It was formed for the purpose of assisting and supporting the Church in obtaining, improving, maintaining, and paying for real property for the Church’s practice of religion. OCB’s original bylaws state that OCB was established “for the purpose of purchasing a more spacious building for the [Church] in Los Angeles … and the purchase of other needed property for the [Church].”

In December 1964, the Church and OCB entered into a written agreement (1964 Agreement) to finance the purchase of real property located at 2041 Argyle Avenue, Los Angeles, CA 90068 (Church Property). The agreement makes clear that the Church was to play an integral role in the governance of OCB. Under the agreement, OCB agreed to (1) act as a backup for the Church if the Church could not make mortgage payments, (2) assist the Church with unexpected repairs or other expenses, and (3) give the Church additional voting rights in OCB contingent on payments made by the Church. Pursuant to the agreement, the Church made payments on the mortgage and received voting shares. As time went by, OCB obtained additional properties all of which would become part of the Church. These properties included 2062 Vine Street, Los Angeles, CA 90068 (Apartment) and 2031 Argyle Avenue, Los Angeles, CA 90068 (Russian Hall).

Because the Church was providing mortgage payments to OCB and covering many of the expenses, the bylaws envisioned that OCB would sell the properties to the Church for the amount of money that OCB contributed to the purchase of these properties, not at their fair market value. Pursuant to the bylaws, the Church can purchase the Church Property for 37% of its fair market value, the Apartment at 82% of its fair market value, and Russian Hall at 43% of the cost for the purchase of the land and construction of the hall.

In November 2018, the Church informed OCB that it intended to exercise its right to purchase the properties pursuant to the bylaws. OCB refused. In September 2019, OCB purports to have amended its bylaws in order to (1) remove the Church’s right to purchase the properties, (2) take Church members off the OCB Board of Directors (OCB Board), and (3) remove the Church as a member of OCB. These amendments are invalid because they were not adopted pursuant to the then-operative OCB bylaws.

In its first cause of action for specific performance, the Church seeks an order compelling OCB to specifically perform under its operative bylaws and sell the properties to the Church. In its second cause of action for declaratory relief, the Church seeks (1) a declaration that the Church is a member of OCB with all membership rights, (2) a determination of how many membership votes the Church can cast, (3) a declaration that the Church’s priests are voting members of the OCB Board, (4) a determination of the voting rights of the Church members on the OCB Board, and (5) a declaration that the bylaws adopted by OCB in September 2019 were invalid. In his third cause of action, Tseshkovsky seeks a declaration that he and all Church priests are members of the OCB Board with rights held by all directors of OCB and the ability to cast two votes on any matter that comes before the OCB Board for a vote.

OCB now moves for summary adjudication on the first and second causes of action contained in the FAC and FSC.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., ; 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

EVIDENTIARY OBJECTIONS

The Church’s Objections to OCB’s Evidence:

• Objection No. 1 is sustained as to the phrase “and the Church.”
• Objection No. 4 is overruled.

The Court does not rule on objections immaterial to its disposition of the motion. (Code Civ. Proc, ; 437c, subd. (q).)

DISCUSSION

a. First Cause of Action for Specific Performance

I. Church’s Performance

“To obtain specific performance after a breach of contract, a plaintiff must generally show: ‘(1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract. [Citations.]’ ” (Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472.)

OCB argues that the Church is not entitled to specific performance because the Church cannot prove its own performance under the bylaws. (Motion 16:5-17:6.) OCB argues that under Section 6 of the bylaws, the Church was required to pay back member loans for the purchase of the apartment and church buildings and pay back the mortgages on all properties. (Ibid.; UMF Nos. 4-13.) OCB argues that the Church has not paid back the requisite amounts. (Ibid.)

The Church “freely admits that it did not pay the mortgage nor the member loans for the apartment building.” (Opp. 4:12-13.) The Church also concedes that it cannot prove it paid back the mortgage for the Russian Hall. (Plntf.’s Resp. to UMF No. 13.) However, the Church contends it was not required to do so because the bylaws do not state who must make the payments, instead stating that repayment is derived from rental income of the property. (Opp. 4:9-17; Plntf.’s Resp. to UMF No. 6.)

While OCB correctly quotes Section 6.02(c) requiring reimbursement of member loans for the Church property and apartment, it ignores an earlier provision in the same section. (See UMF No. 6.) Immediately before the portion OCB cites, Section 6.01 clearly states, “Refund of these sums stems mainly from the income of the apartment house and from the Parish.” (AOE 1672.) This at the very least presents a triable issue over whether the Church itself was required to make the reimbursements.

With regards to the first mortgage loans, Section 6.02(a) states that “Prior to the purchase of this property, all loans made by the banks through first mortgages, must be paid off.” This does not expressly indicate that the Church must make the loan payments, only that the mortgages must be paid off before the Church can exercise the purchase option. If OCB intended for the Church to make the payments, it could have included language to that effect, as it does in Section 6.02(d): “Church must deliver to the Corporation that sum which equals to the percentage of participation of the members of the Corporation at the time the properties were acquired . . . .” (AOE 1673.) Furthermore, OCB acknowledges that it repaid the loans “from the income from the rented apartments.” (Motion 11:26-28.) This verifies the Church’s interpretation and is in line with the Section 6.01 found in OCB’s own evidence. (See AOE 1672.) Also, if OCB acknowledges the loan for the property has been repaid, it would be nonsensical to require the Church to pay the loan prior to exercising the purchase option.

II. Timeliness

“It is settled that if a contract for the sale of real property specifies no time of payment, a reasonable time is allowed.” (Patel v. Liebermensch (2008) 45 Cal.4th 344, 346.) “If no time is specified for the performance of an act required to be performed, a reasonable time is allowed.” (Civ. Code, ; 1657.) Here, Section 6 of OCB’s bylaws does not impose a deadline by which the Church must exercise the purchase option. (See AOE 1672-73.) OCB argues that the Church did not exercise its option at a reasonable time because it waited 35 years to demand performance. (Motion 18:22; UMF No. 4.) The Church does not dispute that it had the ability to purchase the properties at issue during those 35 years. (UMF No. 9.)

What is considered “reasonable” depends on the circumstances. (Sawday v. Vista Irrigation Dist. (1966) 64 Cal.2d 833, 836.) Here, the arrangement between the parties suggests that time was not of the essence. OCB was established to “conduct, operate, and maintain a Russian Orthodox Church” and to purchase and maintain property in line with this purpose. (AOE 0008.) Thus, there would be no urgent need for the Church to personally hold title to the properties, even if that option existed. Furthermore, OCB’s bylaws require the mortgages and loans on the properties to be fully paid off before the Church can exercise the purchase option. (AOE 1672-73.) This contemplates a significant amount of time before the option becomes available. In fact, OCB’s own argument is that the option is still not exercisable to this day because those prerequisites have not been met. Therefore, OCB has not precluded a triable issue over the reasonableness of the Church’s delay in exercising the option.

“The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.” (Pacific Hills Homeowners Assn. v. Prun (2008) 160 Cal.App.4th 1557, 1564-65.) OCB does not argue that the Church unreasonably delayed in bringing suit after its purchase demand was rejected. Rather, OCB’s laches argument centers on the Church’s delay in exercising the option in the first place. (See Motion 20:24-25.) But as discussed above, there is a triable issue over whether the delay was reasonable. Thus, summary adjudication cannot be granted based on laches either.

b. Second Cause of Action for Declaratory Relief

OCB’s only contention with regards to the Church’s second cause of action is laches. (See Motion 24:17-26:10.) OCB argues that the Church slept on its rights because it did not assert any directorial rights since 2003 or 2004. (Ibid.) However, OCB’s own evidence shows that the Church asserted its directorial rights in 2017, although OCB rebuffed the attempt. (UMF No. 9.) Thus, there is a triable issue over how long the Church waited since the last time it asserted its directorial rights before it filed suit. Additionally, OCB’s own evidence shows that until 2019, OCB’s bylaws recognized that the Church’s priests and rectors were on OCB’s board (AOE 1961), further creating a triable issue as to timing. Thus, laches does not dispose of the second cause of action at this stage.

CONCLUSION

For these reasons, OCB’s motion for summary adjudication is DENIED.

'

Case Number: *******9423    Hearing Date: September 16, 2020    Dept: 32

“PROTECTION OF THE HOLY VIRGIN,” THE RUSSIAN ORTHODOX CHURCH, et al. Plaintiffs, v. OUR CHURCH BUILDING, INC., et al. Defendants. ____________________________________ And related cross-complaint.

Case No.: *******9423 Hearing Date: September 16, 2020 [TENTATIVE] order RE: (1) motion to compel further responses from PLAINTIFF VIKTOR TSESHKOVSKY TO RPD, SET THREE (2) motion to compel further responses from PLAINTIFF VIKTOR TSESHKOVSKY TO SI, SET TWO (3) motion to compel further responses from PLAINTIFF VIKTOR TSESHKOVSKY TO RFA, SET ONE (4) motion to compel further responses from PLAINTIFF VIKTOR TSESHKOVSKY TO RFA, SET TWO

BACKGROUND

Plaintiffs “Protection of the Holy Virgin,” the Russian Orthodox Church (“Church”) and Viktor Tseshkovsky (“Tseshkovsky”) (collectively, “Plaintiffs”) commenced this action against Defendant Our Church Building, Inc. (“OCB”) on December 24, 2018. The operative pleading is the First Supplemental Complaint (“FAC”) filed on October 9, 2019. The FAC asserts causes of action for: (1) specific performance; (2) declaratory relief; and (3) declaratory relief. The FAC alleges in pertinent part as follows:

OCB was created to assist the Church in purchasing real property for the Church to operate in.

Pursuant to the parties’ agreement in 1964, the Church would: participate as a member of OCB; make mortgage payments; get additional voting rights for every mortgage payment it made; and have the ability to purchase the real properties acquired under their agreement for less than the properties’ market values. Additionally, the agreement grants the Church’s Parish Rector and all accredited priests with two votes, and it requires that 90% of board members approve selling the real properties.

OCB’s bylaws have changed over the years. The Church believes OCB’s current bylaws have been made without the appropriate vote and procedure, denying the Church’s ability to vote as a member of OCB.

On September 14, 2019, OCB purported to amend its bylaws. If valid, the amended bylaws: stripped the Church of its voting rights; removed Parish priests from the OCB’s Executive Committee of the Board; and deprived the Church from purchasing the properties at less than fair market value, among other things. The Church believes these changes stem from its request for a sale of property that OCB wrongfully denied.

Tseshkovsky demanded to inspect corporate records. However, he was denied access and was informed that some corporate records did not exist.

On March 28, 2019, OCB filed a Cross-Complaint against Tseshkovsky for (1) breach of fiduciary duty and (2) defamation.

LEGAL STANDARD

A. Motion to Compel Further re: RPDs

On receipt of a response to an RPD, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general. (CCP ; 2031.310(a).)

Motions to compel further responses to RPDs must set forth specific facts showing good cause justifying the discovery sought by the request. (CCP ; 2031.310(b).) To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact. (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224 disapproved on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531; see also Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98 (characterizing good cause as “a fact-specific showing of relevance”).) If good cause is shown by the moving party, the burden shifts to the responding party to justify any objections made to disclosure of the documents. (Kirkland, supra, 95 Cal.App.4th at 98.)

B. Motion to Compel Further re: SIs

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under CCP section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general. (CCP ; 2030.300(a).) The responding party has the burden of justifying the objections thereto. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-21.)

C. Motion to Compel Further re: RFAs

On receipt of a response to a request for admission, the propounding party may move for an order compelling a further response if the propounding party deems that (1) an answer to a particular request is evasive or incomplete, or (2) an objection to a particular request is without merit or too general. (CCP ; 2033.290(a).)

DISCUSSION

A. RPD Motion against Tseshkovsky

OCB moves to compel Tseshkovsky to provide further responses to OCB’s RPD, Set Three, No. 1. OCB also requests monetary sanctions against Tseshkovsky in the amount of $5,977.

On April 16, 2020, OCB served its third set of RPDs on Tseshkovsky. (Seabolt Decl. ¶ 7, Exh. A.) On May 15, 2020, Tseshkovsky served his response to the RPD. (Seabolt Decl. ¶ 8, Exh. B.) Tseshkovsky’s response consisted entirely of objections such as burdensome,

oppressive, duplicative, and work product.

1. Good Cause

RPD No. 1 requests “the electronic files (metadata intact) that reflect all OCB documents that YOU scanned at the law firm Snell & Wilmner, L.L.P, from January through August 2019.” (Seabolt Decl., Exh. A, p. 3.)

OCB asserts that good cause supports this request for three reasons. First, Tseshkovsky’s counsel has expressed his intent to move to exclude OCB’s historical documents because OCB allegedly failed to produce them in response to the court’s September 2019 discovery order. (Seabolt Decl., ¶ 3.) Second, the Church seeks to cast doubt over the documents OCB has produced. (Seabolt Decl. ¶¶ 12-14, Exh. C.) RPD No. 1 seeks information to establish that OCB has already produced those historical documents to Plaintiffs and that the documents are authentic. Third, only Plaintiffs can provide the information Defendant seeks.

The court finds that OCB has not established good cause.

A timeline of events leading up to this motion is helpful to the court’s analysis. The Church propounded discovery on OCB, seeking documents related to amendments of the

bylaws for any time period. (Cameron Decl. Exh. 5, p. 24.) The church filed a motion to compel further responses after finding OCB’s response inadequate. (Cameron Decl. Exh. 5, p. 24.) On September 23, 2019, that motion came before the court. The court agreed with the Church and granted the motion to compel further responses, stating “if OCB cannot produce particular documents, OCB must provide a partial or whole statement of inability to comply and explain why in accordance with CCP section 2031.230…Moreover, the Court agrees with the Church that [OCB’s response…is] not code-compliant…” (Id., p. 24.) On October 24, 2019, OCB provided a supplemental response; however, it did not include the amended bylaws or a statement of inability to comply. (Id., p. 25.)

On April 11, 2020, the Church’s counsel indicated that the Church would be filing motions to have OCB’s previous amended bylaws excluded from evidence based on the Church’s failure to produce the amended bylaws in response to the court’s September 23, 2019 order. (Seabolt Decl. ¶ 3.)

OCB seeks to prove it did not willfully disobey the court’s order. (See Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270 [trial court had power to bar testimony of witness willfully excluded from answer to interrogatory seeking names of witnesses to accident].) So, OCB propounded discovery on the Church seeking proof that OCB had already produced these documents for scanning and copying. (Seabolt Decl. ¶ 7.)

Based on the above, the disputed fact or issue is whether OCB willfully failed to provide the amended bylaws per the court’s order. Relevant to a motion to exclude evidence is OCB’s response or lack thereof to the Church’s discovery and the affect it has on the Church, such as depriving the Church of the opportunity of preparation or causing unfair surprise at trial. (Thoren v. Johnston & Washer, supra, 29 Cal.App.3d at 274.) Presumably, OCB propounded its discovery to show that the Church was not affected because the Church already had the amended bylaws that it sought.

However, it is unclear how, if at all, the Church has been deprived of an opportunity to

prepare for its case. On January 3, 2020, OCB attached the amended bylaws sought by the

Church to its motion for summary judgment (“MSJ”) as exhibits. (Cameron Decl. Exh. 5, p. 25.) The documents were also served on the Church. (Seabolt Decl. ¶ 17.) Trial is set for January 19, 2021, meaning that the Church would have had more than a year to review the amended bylaws and prepare accordingly.

In light of the Church’s ability to prepare its case in regard to the amended bylaws, the court finds that the discovery sought it not relevant. (See Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117 [“evidence is ‘relevant’ if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating a settlement”].) The court sees no reason why a motion to exclude is necessary, and in turn, why the Church needs to provide proof that it had the amended bylaws prior to OCB’s MSJ.

Accordingly, the court denies OCB’s motion to compel a further response to RPD No. 1.

2. Sanctions

Tseshkovsky requests monetary sanctions against OCB and its counsel in the amount of $1,750. The court agrees that Tseshkovsky may be awarded sanctions because OCB unsuccessfully brought this motion. (CCP ; 2031.310(h)). However, the court finds that OCB acted with substantial justification in bringing the motion. OCB sought to protect its ability to present its case in full and made ponderable arguments. Accordingly, no sanctions are awarded.

3. Conclusion

OCB’s motion to compel Tseshkovsky to provide a further response to its RPD, Set Three, No. 1 is DENIED.

Tseshkovsky’s request for monetary sanctions against OCB and its counsel is DENIED.

B. SI Motion against Tseshkovsky

OCB moves to compel Tseshkovsky to provide further responses to OCB’s SI,

Set Two, Nos. 81-85. OCB also requests monetary sanctions against Tseshkovsky in the amount of $4,875.

On January 3, 2020, OCB served its first set of RFAs. (Seabolt Decl. ¶ 2, Exh. A.) Due to an oversight, OCB did not serve its FIs until January 6, 2020. (Seabolt Decl. ¶ 3, Exh. B.) To mitigate that these forms of discovery were not served together, Defendant served its SI, Set Two, Nos. 80-85 on January 6, 2020. (Seabolt Decl. ¶ 5, Exh. C.) On March 4, 2020, Tseshkovsky served his responses to the RFA, Set One and the SI, Set Two. (Seabolt Decl. ¶ 6.) Tseshkovsky’s responses to these SIs consist mostly of objections such as compound and complex, and the interrogatories are not full and complete within themselves. Tseshkovsky bears the burden of justifying these objections.

1. SI No. 81-85

SI Nos. 81-85 requests information supporting Tseshkovsky’s denial of 24 RFAs.

Tseshkovsky’s objections are two-fold: (1) the SIs are compound because they require Tseshkovsky to answer the SIs for each of the 24 RFAs he denied; and (2) the SIs are not full and complete within themselves as Tseshkovsky would need to review both the RFAs and his responses to answer the SIs.

The court agrees with Tseshkovsky.

“Each interrogatory shall be full and complete in and of itself…No specially prepared interrogatory shall contain subparts, or a compound, conjunctive, or disjunctive question.” (CCP ; 2030.060 (d) and (f).) These rules “prevent evasion of the statutory limit on the number of interrogatories that one party may propound to another.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1288 (citation omitted).) A party propounding more than 35 SIs must do so with a supporting declaration, as required by CCP ; 2030.050.

OCB propounded five SIs regarding the 24 RFAs that Tseshkovsky denied. The SIs

require that Tseshkovsky review his responses to the RFAs in order to respond to the SIs.

Additionally, OCB is really asking 120 questions, which exceeds the statutory requirement. From the papers, it does not appear that OCB attached the required declaration to its SIs. Accordingly, OCB violated the ‘rule of 35’ in propounding its SIs. (See Catanese v. Superior Court (1996) 46 Cal.App.4th 1159 [court denied motion to compel further where 5 SIs required that responding party refer to deposition transcripts, effectively posed upwards of 10,000 separate questions, and the required declaration was not attached]; cf. Clement v. Alegre, supra, 177 Cal.App.4th 1277 [court properly granted defendant’s motion to compel further where defendant propounded 23 SIs, one of which referred to previous interrogatory, because SIs were not meant to undermine the ‘rule of 35’].)

2. Sanctions

Tseshkovsky requests monetary sanctions against OCB and its counsel in the amount of $1,225. Both parties acted with substantial justification, and the court declines to award sanctions.

3. Conclusion

OCB’s motion to compel Tseshkovsky to provide further responses to its SI, Set Two, Nos. 81-85 is DENIED.

Tseshkovsky’s request for monetary sanctions against OCB and its counsel is DENIED. .

C. RFA (Set One) Motion against Tseshkovsky

OCB moves to compel Tseshkovsky to provide further responses to OCB’s RFA, Set One, Nos. 36-59. OCB also requests monetary sanctions against the Church in the amount of $4,305.

On January 3, 2020, OCB served its first set of RFAs. (Seabolt Decl. ¶ 2, Exh. A.)

On March 4, Tseshkovsky served his responses to the RFAs. (Seabolt Decl. ¶ 3, Exh. B.)

Tseshkovsky’s responses to these RFAs consist of objections such as lack of personal

knowledge, information, and belief.

1. RFA Nos. 36-59

RFA Nos. 36-59 ask Tseshkovsky to admit that “the CHURCH’s priests did not attempt to assert rights as directors of OCB [from 1964 through 2013].” (Seabolt Decl.¶ 2, Exh. A, RFA Nos. 36-59.)

Tseshkovsky’s objections are as follows: (1) he lacks personal knowledge as he did not arrive at the Church until 2014; (2) he made a reasonable inquiry concerning the matters; (3) the discovery sought is duplicative of discovery already obtained; (4) the discovery is burdensome and oppressive because the Church has already provided responses to the same questions; and (5) the discovery sought creates improper entanglement in religious beliefs.

The court does not find Tseshkovsky’s objections meritorious.

First, a responding party may not state he lacks sufficient information or knowledge to admit or deny an RFA, unless he states that he made a “reasonable inquiry” and “the information known or readily obtainable is sufficient to enable that party to admit the matter.” (CCP ; 2033.220(c).) Such statements must be made for each answer where applicable. (Id. (b)(3).) The court notes that CCP ; 2033.220(c) does not require that the responding party detail the ways in which it conducted a reasonable inquiry. That specificity is only required where RFAs concern a legal question or application of law to fact. (Joyce v. Ford Motor Co.

Second, an objection on grounds that discovery is duplicative or has been asked and answered in not a valid objection. If there is no injustice or inequity, the proper remedy is a motion for protective order. (Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 218.) Tseshkovsky argues the discovery is burdensome and oppressive. Though Tseshkovsky has shown that obtaining the same discovery from the Church may be more convenient, he has refused to stipulate to be bound by the Church’s responses. (Reply, 4:16-18.) Additionally, he has not shown “the discovery sought is unreasonably cumulative or duplicative.” (CCP ; 2019.030(a)(1), emphasis added.)

Third, as of now, there are no First Amendment concerns. “First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice.” (Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969) 393 U.S. 440, 449.) At the moment, it does not appear that OCB seeks discovery of such ecclesiastical matters. Rather, OCB seeks discovery showing that the Church’s priests and rectors have waived their rights as directors within OCB. OCB was “formed for the purpose of assisting and supporting the Church in obtaining, improving, maintaining, and paying for real property for the Church’s practice of religion.” (FAC, ¶ 10.) It is difficult to see how OCB, in that role, is subject to the Church’s religious doctrine and practice. (See Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, supra, 393 U.S. at 450 [“The Georgia courts have violated the command of the First Amendment” when it determined that the church substantially departed from prior doctrine].) Thus, “[t]his argument is not a basis for limiting discovery at this stage of the litigation.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 598.)

Accordingly, OCB is entitled to further responses. However, Tseshkovsky need not provide specificity as to his reasonable inquiry.

2. Sanctions

OCB requests monetary sanctions against OCB and its counsel in the amount of $4,305. Both parties acted with substantial justification, and the court declines to award sanctions.

3. Conclusion

OCB’s motion to compel Tseshkovsky to provide further responses to its RFA, Set One is GRANTED IN PART. Tseshkovsky is ordered to provide supplemental responses to Nos. 36-59 within 30 days of service of the court’s order; however, Tseshkovsky need not provide specificity as to its reasonable inquiry.

OCB’s request for monetary sanctions against Tseshkovsky and its counsel is DENIED.

D. RFA (Set Two) Motion against Tseshkovsky

OCB moves to compel Tseshkovsky to provide further responses to OCB’s RFA, Set Two, Nos. 125-128. OCB also requests monetary sanctions against the Church in the amount of $3,355.

On April 3, 2020, Defendant served its second set of RFAs. (Seabolt Decl. ¶ 2, Exh. A.) On March 4, Tseshkovsky served his responses to the RFAs. (Seabolt Decl. ¶ 3, Exh. B.) Tseshkovsky’s responses to these RFAs consist of objections such as lack of personal

knowledge, information, and belief.

1. RFA Nos. 125-128

RFA Nos. 125-128 ask Tseshkovsky to admit that “During his tenancy as CHURCH Rector, [the individual Rectors] did not attempt to assert rights as a director of OCB.” (Seabolt Decl. ¶ 3, Exh. A, RFA Nos. 125-128.)

Tseshkovsky’s objects for the same reasons discussed above and incorporates those objections into the instant motion. As such, Tseshkovsky’s objections are as follows: (1) he lacks personal knowledge as he did not arrive at the Church until 2014; (2) he made a reasonable inquiry concerning the matters; (3) the discovery sought is duplicative of discovery already obtained; (4) the discovery is burdensome and oppressive because the Church has already provided responses to the same questions; and (5) the discovery sought creates improper entanglement in religious beliefs.

For the reasons discussed above, the court does not find Tseshkovsky’s objections meritorious.

Accordingly, OCB is entitled to further responses. However, Tseshkovsky need not provide specificity as to his reasonable inquiry.

2. Sanctions

OCB requests monetary sanctions against OCB and its counsel in the amount of $3,355. Both parties acted with substantial justification, and the court declines to award sanctions.

3. Conclusion

OCB’s motion to compel Tseshkovsky to provide further responses to its RFAs, Set Two is GRANTED IN PART. Tseshkovsky is ordered to provide supplemental responses to Nos. 125-128 within 30 days of service of the court’s order; however, Tseshkovsky need not provide specificity as to its reasonable inquiry.

OCB’s request for monetary sanctions against Tseshkovsky and its counsel is DENIED

“PROTECTION OF THE HOLY VIRGIN,” THE RUSSIAN ORTHODOX CHURCH, et al. Plaintiffs, v. OUR CHURCH BUILDING, INC., et al. Defendants. ____________________________________ And related cross-complaint.

Case No.: *******9423 Hearing Date: September 16, 2020 [TENTATIVE] order RE: (1) motion to compel further responses from PLAINTIFF “PROTECTION OF THE HOLY VIRGIN” TO RPD, SET ONE (2) motion to compel further responses from PLAINTIFF “PROTECTION OF THE HOLY VIRGIN” TO RPD, SET TWO (3) motion to compel further responses from PLAINTIFF “PROTECTION OF THE HOLY VIRGIN” TO FI, Set ONe (4) motion to compel further responses from PLAINTIFF “PROTECTION OF THE HOLY VIRGIN” TO SI, SET ONE (5) motion to compel further responses from PLAINTIFF “PROTECTION OF THE HOLY VIRGIN” TO RFA, SET ONE

BACKGROUND

Plaintiffs “Protection of the Holy Virgin,” the Russian Orthodox Church (“Church”) and Viktor Tseshkovsky (“Tseshkovsky”) (collectively, “Plaintiffs”) commenced this action against Defendant Our Church Building, Inc. (“OCB”) on December 24, 2018. The operative pleading is the First Supplemental Complaint (“FAC”) filed on October 9, 2019. The FAC asserts causes of action for: (1) specific performance; (2) declaratory relief; and (3) declaratory relief. The FAC alleges in pertinent part as follows:

OCB was created to assist the Church in purchasing real property for the Church to operate in.

Pursuant to the parties’ agreement in 1964, the Church would: participate as a member of OCB; make mortgage payments; get additional voting rights for every mortgage payment it made; and have the ability to purchase the real properties acquired under their agreement for less than the properties’ market values. Additionally, the agreement grants the Church’s Parish Rector and all accredited priests with two votes, and it requires that 90% of board members approve selling the real properties.

OCB’s bylaws have changed over the years. The Church believes OCB’s current bylaws have been made without the appropriate vote and procedure, denying the Church’s ability to vote as a member of OCB.

On September 14, 2019, OCB purported to amend its bylaws. If valid, the amended bylaws: stripped the Church of its voting rights; removed Parish priests from the OCB’s Executive Committee of the Board; and deprived the Church from purchasing the properties at less than fair market value, among other things. The Church believes these changes stem from its request for a sale of property that OCB wrongfully denied.

Tseshkovsky demanded to inspect corporate records. However, he was denied access and was informed that some corporate records did not exist.

On March 28, 2019, OCB filed a Cross-Complaint against Tseshkovsky for (1) breach of fiduciary duty and (2) defamation.

LEGAL STANDARD

A. Motion to Compel Further re: RPDs

On receipt of a response to an RPD, the demanding party may move for an order

compelling further responses to the demand if the demanding party deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general. (CCP ; 2031.310(a).)

Motions to compel further responses to RPDs must set forth specific facts showing good cause justifying the discovery sought by the request. (CCP ; 2031.310(b).) To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact. (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224 disapproved on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531; see also Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98 (characterizing good cause as “a fact-specific showing of relevance”).) If good cause is shown by the moving party, the burden shifts to the responding party to justify any objections made to disclosure of the documents. (Kirkland, supra, 95 Cal.App.4th at 98.)

B. Motion to Compel Further re: FIs and SIs

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under CCP section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general. (CCP ; 2030.300(a).) The responding party has the burden of justifying the objections thereto. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-21.)

C. Motion to Compel Further re: RFAs

On receipt of a response to a request for admission, the propounding party may move for an order compelling a further response if the propounding party deems that (1) an answer to a particular request is evasive or incomplete, or (2) an objection to a particular request is without merit or too general. (CCP ; 2033.290(a).)

DISCUSSION

A. RPD (Set One) Motion against the Church

OCB moves to compel the Church to provide further responses to OCB’s RPD, Set One, Nos. 2-6, 8-25, 32-35, 48, 54-56, 71, 74-75, 82, 97, 101, and 105. OCB also moves to compel compliance with the Church’s statement of compliance contained in its response to No. 69, or alternatively, a further response. OCB also requests monetary sanctions against the Church in the amount of $9,256.

On January 3, 2020, OCB served its first set of RPDs on the Church. (Seabolt Decl. ¶ 2, Exh. A.) On March 4, 2020, the Church served its responses to the RPDs. (Seabolt Decl. ¶ 4, Exh. C.) The Church’s responses consisted entirely of objections such as First Amendment/entanglement, relevance, vague and ambiguous, and overly burdensome.

1. Good Cause

RPD Nos. 2-25 and 54-56 seek documents that reflect communications or internal documents that discuss OCB, OCB’s property, OCB’s bylaws, and OCB’s directors. Nos. 32-34 and 48 seek documents that would support OCB’s theory that the 1990 Bylaws are unenforceable. Nos. 71, 74, 82, 97, 101, and 105 seek the factual basis for the Church’s allegations in its Complaint.

OCB asserts that good cause supports these requests because they are directly relevant to its defenses in this action, and only the Church can provide the information. (Seabolt Decl. ¶¶ 14-48.) The court agrees. For example, Plaintiffs allege that they have voting rights within OCB. (FAC, ¶¶ 13-14.) OCB contends that Plaintiffs do not have such rights, having forgone them by not enforcing them since 1990. (Seabolt Decl. ¶¶ 16-17.) If OCB can prove that Plaintiffs have waived their rights, then it can show that the Church is not entitled to relief. (Seabolt Decl. ¶ 19.)

2. Objections

Generally, the Church’s objections are as follows: the First Amendment limits the discovery OCB seeks; it has already provided financial documents to the Church; OCB’s requests are irrelevant, overbroad, and ambiguous; and the Church is protected by the work-product doctrine.

a. RPD Nos. 2-25 and 54-56

OCB may obtain further responses to Nos. 2-5, 9-15, 17-19, 21-25, and 54-56.

First, the information sought is relevant. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546 [information is relevant if it might reasonably assist party in evaluating case, preparing for trial, or facilitating settlement].) As discussed above, OCB has shown that the information sought might reasonably assist in evaluating its defenses and preparing for trial.

Second, the requests are not overbroad, as they are narrowly tailored. They are limited to a certain type of communication, between certain individuals, and within a certain time frame.

Third, for the reasons discussed above, the requests are not ambiguous. (Cembrook v. Superior Court (1961) 56 Cal. 2d 423, 428-30 [objection that request is “ambiguous” is proper if request is so ambiguous that responding party cannot frame intelligent reply in good faith].)

Fourth, as of now, there are no First Amendment concerns. “First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice.” (Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969) 393 U.S. 440, 449.) At the moment, it does not appear that OCB seeks discovery of such ecclesiastical matters. Rather, OCB seeks discovery showing that the Church has waived its rights under the bylaws by not exercising said rights for about thirty years. OCB was “formed for the purpose of assisting and supporting the Church in obtaining, improving, maintaining, and paying for real property for the Church’s practice of religion.” (FAC, ¶ 10.) It is difficult to see how OCB, in that role, is subject to the Church’s religious doctrine and practice. (See Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, supra, 393 U.S. at 450 [“The Georgia courts have violated the command of the First Amendment” when it determined that the church substantially departed from prior doctrine].) Thus, “[t]his argument is not a basis for limiting discovery at this stage of the litigation.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 598.)

OCB may not obtain further responses to Nos. 6-8, 12, 16, and 20 as the requests are overbroad in that they seek communication “regarding OCB” or communication between the Church and “any person.” These requests are not narrowly tailored to apprise the Church of information being sought.

b. RPD Nos. 32-35, 48

OCB may not obtain further responses to these requests.

First, No. 34 is overbroad in that it seeks communication between the Church and “any person.” This request is not narrowly tailored. OCB may tailor the RPD to be less broad.

Second, there exists a First Amendment concern. OCB contends that the information sought is relevant to its argument that there exists a contractual relationship between the parties, and that the Church breached that relationship by removing certain people from the Church Council, making it more likely for a vote to pass within the Church to purchase OCB’s properties. (Seabolt Decl. ¶¶ 26-27.) Assuming OCB finds the information it seeks, that the Church improperly removed members, it is difficult to see how the court and the Church’s religion could avoid entanglement. At that point, OCB’s defense would be in disproving the way in which the Church removed its members. The court may not get involved in such matters: “To the extent the interpretation or construction of [the parties' governing documents] involves the resolution of a matter of ecclesiastical doctrine, polity, or administration,  the civil court must defer to the resolution of the issue by the ‘authoritative ecclesiastical body…Significantly, such ecclesiastical matters include not only issues of religious doctrine per se, but also issues of membership, clergy credentials and discipline, and church polity and administration.” (Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American Dist. of the Assemblies of God

c. RPD Nos. 71, 74, 82, 97, 101, and 105

These requests seek the following: evidentiary support for the Church’s allegations in its Complaint, the purpose for which OCB was created, the fairness of the agreement made between the parties, and information related to the amended bylaws.

The Church objects on additional grounds that these requests call for a legal conclusion, and the Church is protected by the work-product doctrine.

OCB is entitled to further responses.

First, the information sought is relevant. The requests ask the Church to substantiate some of the allegations it made in the Complaint and its arguments contending the validity of the bylaws and amendments. Such discovery is relevant to analyzing OCB’s case and preparing a defense and for trial.

Second, the requests are not overbroad or ambiguous. The requests are narrowly tailored and are drafted in such a way that allows the Church to prepare a response.

Third, as of now, there are no First Amendment concerns. “First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice.” (Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969) 393 U.S. 440, 449.) At the moment, it does not appear that OCB seeks discovery of such ecclesiastical matters. Rather, OCB seeks discovery that supports the Church’s allegations in its Complaint, and establishes the purpose for which OCB was created, among other things. The discovery sought appears tied to why OCB was formed – “for the purpose of assisting and supporting the Church in obtaining, improving, maintaining, and paying for real property for the Church’s practice of religion.” (FAC, ¶ 10.) It is difficult to see how the discovery sought and how OCB, in that role, is subject to the Church’s religious doctrine and practice. (See Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, supra, 393 U.S. at 450 [“The Georgia courts have violated the command of the First Amendment” when it determined that the church substantially departed from prior doctrine].) Thus, “[t]his argument is not a basis for limiting discovery at this stage of the litigation.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc, supra, 246 Cal.App.4th at 598.)

Fourth, the Church is not protected by the work-product doctrine. OCB seeks discovery that is evidentiary in nature, which is not work-product. (See Coito v. Superior Court

2. RPD No. 69 (Compliance)

The parties agreed that the Church would provide documents that it will be relying on to show that it paid consideration for the option to purchase properties. (Seabolt Decl. ¶ 6, Exh. E, 6:16-20.) The Church has identified the documents it will be relying on. (Sorokin Decl., Exh. S-2, p. 88-123.) And, the Church claims to have already produced such documents. (Opp., 8:23-26.) However, it appears that the Church did not produce all the documents it said it would: “The Church contends that the documents attached prove it made the payments and they are the documents the Church will rely on to make its case in chief…The Church is only providing samples of those entries as it would be burdensome and cumulative to match OCB’s ledgers with the Church’s and the Church does not intend to do so at trial.” (Seabolt Decl., Exh. F.) The Church has not explained why providing the additional documents “is unreasonably cumulative or duplicative.” (CCP ; 2019.030(a)(1), emphasis added.)

The Church must provide the remaining documents it relied on in preparing its charts to show the consideration paid for the option to purchase the properties. (CCP ; 2031.320(a) [“If a party filing a response to a demand for inspection, copying, testing, or sampling . . . thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.”]

3. Sanctions

OCB requests monetary sanctions against the Church in the amount of $9,256. Both parties acted with substantial justification, and the court declines to award sanctions.

4. Conclusion

OCB’s motion to compel the Church to provide further responses to its RPD, Set One

is GRANTED IN PART. The Church is ordered to provide further responses to Nos. 2-6, 8-25, 54-56, 71, 74-75, 82, 97, 101, and 105. The Church is also ordered to comply with No. 69. The Church must do both within 30 days of the notice of this order.

OCB’s request for monetary sanctions against the Church is DENIED.

B. RPD (Set Two) Motion against the Church

OCB moves to compel the Church to provide further responses to OCB’s RPD, Set Two,

No. 126 and compliance with Nos. 116-119. OCB also requests monetary sanctions against the

Church and its counsel in the amount $4,495.

On April 3, 2020, OCB served its second set of RPD. (Seabolt Decl. ¶ 6, Exh. B.) On April 8, 2020, the Church served its responses. (Seabolt Decl. ¶ 8, Exh. C.) The Church objected to No. 126 on grounds that it was vague and ambiguous, and it objected to Nos. 116-119 on grounds that it already provided the sought discovery.

1. Good Cause

RPD No. 126 seeks any “agreement between the CHURCH and OCB regarding the payment schedule for any mortgage, as reflected in ; 5.02 of OCB’s 1990 Bylaws.” (Seabolt Decl., Exh. B.)

OCB asserts that good cause supports this request because it could contain further information regarding the meaning of OCB’s documents and the respective rights of the parties. (Seabolt Decl. ¶¶ 4-6.) The court agrees. The Church seeks a court order declaring that it may purchase the properties at less than the market price. (FAC, ¶ 38.) OCB contends that the Church would only be able to do that with one of the properties, as there exists only one written agreement. (Seabolt Decl. ¶ 4.) Obtaining such discovery would permit OCB to analyze its case and prepare for trial.

2. Objections to RPD No. 126

The Church objects on grounds that the request is vague and ambiguous as all mortgages

were paid off prior to 1990. Though the Church objected, it responded with, “All mortgages were paid off prior to 1990. As such, there is no payment schedule for any mortgages from 1990 on.” (Separate Statement, 6:18-19.) The court believes this is a sufficient response to the request. The request refers to the bylaws as amended in 1990, which could reasonably be interpreted to

mean from 1990 and on.

As such, no further response is required.

3. RPD Nos. 116-119 (Compliance)

These requests seek minutes from any meeting of the Church Council from 1990 through the present” that discuss OCB (No. 116), OCB’s directors (No. 117), OCB’s bylaws (No. 118), or the Church’s votes in OCB (No. 119). (Seabolt Decl. ¶ 7, Exh., B.)

OCB’s request for compliance appears moot. The Church’s counsel explained that the

redactions were inadvertent, and that the Church has produced unredacted copies of the minutes.

(Cameron Decl., Exh. 4.)

4. Sanctions

The Church requests monetary sanctions against OCB and its counsel in the amount of $1,400. Both parties acted with substantial justification, and the court declines to award sanctions.

3. Conclusion

OCB’s motion to compel the Church to provide further responses to its RPD, Set Two, No. 126 is DENIED. OBC’s motion to compel compliance to Nos. 116-119 is MOOT.

The Church’s request for monetary sanctions against OCB and its counsel is DENIED.

C. FI Motion against the Church

OCB moves to compel the Church to provide further responses to OCB’s FI, Set One,

Nos. 17.1 and 50.1. OCB also requests monetary sanctions against the Church in the amount of $5,065.

On January 3, 2020, OCB served its first set of FIs. (Seabolt Decl. ¶ 2a, Exh. A.) On

March 4, the Church served its responses. (Seabolt Decl. ¶ 3a, Exh. C.)

1. FI No. 17.1.

This FI seeks facts to support the Church’s denial of certain RFAs. The Church’s

responses to these FIs consist of objections such as calls for a legal conclusion, not applicable,

burdensome and oppressive, and vague and ambiguous.

The court finds that these objections lack merit. First, the interrogatories do not call for

legal conclusions, as they call for identifying persons and documents. That is, they seek an evidentiary basis for the Church’s denial of certain RFAs. Second, “not applicable” is not a valid objection. (Cal. Judges Benchbook Civ. Proc. Discovery, Grounds for Objections to Interrogatories ; 18.35.) Third, the Church has not shown that identifying such persons and documents is unduly burdensome. (See CCP ; 2017.020(a) [“The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence”].) Fourth, there is nothing ambiguous about identifying persons or documents.

2. FI No. 50.1

This FI seeks facts for each agreement alleged in the pleadings. The Church objects on grounds that the FI is vague and ambiguous.

This court finds that this objection lacks merit. The Church contends there is only one agreement alleged in the pleading, which was identified in subsection (a) of its response to FI No. 50.1. The remaining subsections are drafted in such a way that the Church can frame an intelligent reply in good faith. (See Cembrook v. Superior Court, supra, 56 Cal. 2d at 428-30 [objection that request is “ambiguous” is proper if request is so ambiguous that responding party cannot frame intelligent reply in good faith].) For example, if there are no contract modifications, then the Church may say so.

3. Sanctions

OCB requests monetary sanctions against the Church and its counsel in the amount of $5,065. Both parties acted with substantial justification, and the court declines to award sanctions.

4. Conclusion

OCB’s motion to compel the Church to provide further responses to its FIs, Set One, Nos. 17.1 and 50.1 is GRANTED. The Church is ordered to provide supplemental responses within 30 days of the court’s order.

OCB’s request for monetary sanctions against the Church and its counsel is DENIED.

D. SI Motion against the Church

OCB moves to compel the Church to provide further responses to OCB’s SI, Set One, Nos. 1-4, 24-25, 43-44, 60-62, 71, 73-75. OCB also requests monetary sanctions against the Church in the amount of $9,180.

On January 3, 2020, OCB served its first set of SIs. (Seabolt Decl. ¶ 2, Exh. A.) On March 4, 2020, the Church served its responses to the SIs. (Seabolt Decl. ¶ 3, Exh. B.) The Church’s responses consist of objections such as relevance, First Amendment/entanglement, vague and ambiguous, overly burdensome, and overbroad, among others.

1. SI Nos. 1-4, 43-44

These requests seek information regarding Church membership. OCB may not obtain

such discovery.

There exists a First Amendment concern. OCB contends that the information sought is relevant to its argument that there exists a contractual relationship between the parties, and that the Church breached that relationship by removing certain people from the Church Council, making it more likely for a vote to pass within the Church to purchase OCB’s properties. (Separate Statement, 6:17-24.) Assuming OCB finds the information it seeks, that the Church improperly removed members, it is difficult to see how the court and the Church’s religion could avoid entanglement. At that point, OCB’s defense would be in disproving the way in which the Church removed its members. The court may not get involved in such matters: “To the extent the interpretation or construction of [the parties' governing documents] involves the resolution of a matter of ecclesiastical doctrine, polity, or administration,  the civil court must defer to the resolution of the issue by the ‘authoritative ecclesiastical body… Significantly, such ecclesiastical matters include not only issues of religious doctrine per se, but also issues of membership, clergy credentials and discipline, and church polity and administration.” (Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American Dist. of the Assemblies of God, supra, 173 Cal.App.4th at 437.)

2. SI Nos. 24-25

These requests seek documents and facts that support some of the Church’s allegations in its Complaint.

The Church objects on grounds that these requests call for legal conclusions and work product and are burdensome and oppressive. The court disagrees.

First, the Church is not protected by the work-product doctrine. OCB seeks discovery that is evidentiary in nature, which is not work-product. (See Coito v. Superior Court, supra,

Second, the Church has not shown that providing such discovery is unduly burdensome. (See CCP ; 2017.020(a) [“The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence”].)

The court notes that the Church’s response to No. 25 was responsive. However, to the extent it was limited by the objections noted above, the Church is instructed to provide a further response. The Church is also instructed to provide a further response to No. 24.

3. SI Nos. 60-62, 71, 73-75

These requests seek information as to why OCB was formed, why the Church did not purchase the properties for itself, and for evidentiary support as to why OCB was not formed for the purpose of prohibiting the Church from unilaterally taking control of the properties.

The Church objects on grounds that the requests call for state of mind of another, are speculative, are irrelevant, are protected by the work-product doctrine, and are burdensome and oppressive.

The court finds that OCB is entitled to further responses.

First, these requests are relevant in that they aim to define the parties’ relationship and obligations.

Second, it is difficult to see how the Church raises objections for state of mind of another and speculation when it alleged in its Complaint that OCB “was formed for the purpose of assisting and supporting the Church in obtaining, improving, maintaining, and paying for real property for the Church's practice of religion.” (FAC, ¶ 10.)

Third, the Church is not protected by the work-product doctrine. OCB seeks discovery that is evidentiary in nature, which is not work-product. (See Coito v. Superior Court, supra,

Fourth, the requests are not unduly burdensome in that they do not ask the Church to investigate why the Church did not purchase the properties. It is enough for the Church to say that it does not know why, as it explained in its opposition: “The Church answer is simply it does

not know. As such, it can present no evidence on that issue at the time of trial.” (Opp., 7:19-20.)

If for whatever reason, the Church is unable to comply with the discovery requests, it may include a statement of inability to comply for each request for which it cannot comply. (CCP ; 2031.230.)

5. Sanctions

OCB seeks sanctions against the Church and its counsel in the amount of $9,180. Both parties acted with substantial justification, and the court declines to award sanctions.

6. Conclusion

OCB’s motion to compel the Church to provide further responses to its SI, Set One, Nos. is GRANTED IN PART. The Church is ordered to provide supplemental responses to Nos. 24-25, 60-62, 71, 73-75 within 30 days of service of the court’s order.

OCB’s request for monetary sanctions against the Church and its counsel is DENIED.

E. RFA Motion Against the Church

OCB moves to compel the Church to provide further responses to OCB’s RFA, Set One, Nos. 71-94, 105-106, and 120. OCB also requests monetary sanctions against the Church in the amount of $4,495.

On January 3, 2020, OCB served its first set of RFAs. (Seabolt Decl. ¶ 2, Exh. A.) On March 4, 2020 the Church served its responses. (Seabolt Decl. ¶ 3, Exh. B.) The Church’s responses to these RFAs consist of objections on grounds that it lacks information and knowledge to answer the requests, and the discovery sought is equally available to both parties.

1. RFA Nos. 71-94, 120

RFA Nos. 71-94 ask the Church to admit that the Church’s priests had not asserted their rights as a director of OCB from 1990 to 2013. RFA No. 120 asks the Church to admit that OCB received a notice, dated January 5, 1990, of a general meeting of OCB’s members. (Seabolt Decl., Exh. A.)

The Church’s responses are not code compliant.

First, a responding party may not state he lacks sufficient information or knowledge to admit or deny an RFA, unless he states that he made a “reasonable inquiry” and “the information known or readily obtainable is sufficient to enable that party to admit the matter.” (CCP ; 2033.220(c).) Such statements must be made for each answer where applicable. (Id. (b)(3).) The court notes that CCP ; 2033.220(c) does not require that the responding party detail the ways in which it conducted a reasonable inquiry. That specificity is only required where RFAs concern a legal question or application of law to fact. (Joyce v. Ford Motor Co.

Second, the court finds that an objection on grounds that information is equally available is not valid where the discovery sought is in the form of RFAs. RFAs “are conceived for the purpose of setting to rest triable issues in the interest of expediting trial.” (Wimberly v. Derby Cycle Corp.

Accordingly, OCB is entitled to further responses. However, the Church need not provide specificity as to its reasonable inquiry.

2. RFA Nos. 105-106

RFA No. 105 asks the Church to admit that OCB was formed to ensure that the Church

could not take over the properties. RFA No. 106 asks the Church to admit that OCB was formed to protect OCB members from the Church taking over the properties. (Seabolt Decl., Exh. A.)

The Church’s supplemental responses are code compliant. (CCP ; 2033.220(c).)

3. Sanctions

OCB requests monetary sanctions against OCB and its counsel in the amount of $4,495. Both parties acted with substantial justification, and the court declines to award sanctions.

4. Conclusion

OCB’s motion to compel the Church to provide further responses to its RFAs, Set One is

GRANTED IN PART. The Church is ordered to provide supplemental responses to Nos. 71-94, and 120 within 30 days of service of the court’s order. The Church need not provide specificity as to its reasonable inquiry.

OCB’s request for monetary sanctions against the Church and its counsel is DENIED.

“PROTECTION OF THE HOLY VIRGIN,” THE RUSSIAN ORTHODOX CHURCH, et al. Plaintiffs, v. OUR CHURCH BUILDING, INC., et al. Defendants. ____________________________________ And related cross-complaint.	Case No.: *******9423 Hearing Date: September 16, 2020 [TENTATIVE] order RE: (1) motion FOR PROTECTIVE ORDER RE SI, SET TWO (2) motion FOR PROTECTIVE ORDER RE RFA, SET TWO

BACKGROUND

Plaintiffs “Protection of the Holy Virgin,” the Russian Orthodox Church (“Church”) and Viktor Tseshkovsky (“Tseshkovsky”) (collectively, “Plaintiffs”) commenced this action against Defendant Our Church Building, Inc. (“OCB”) on December 24, 2018. The operative pleading is the First Supplemental Complaint (“FAC”) filed on October 9, 2019. The FAC asserts causes of action for: (1) specific performance; (2) declaratory relief; and (3) declaratory relief. The FAC alleges in pertinent part as follows:

OCB was created to assist the Church in purchasing real property for the Church to operate in.

Pursuant to the parties’ agreement in 1964, the Church would: participate as a member of OCB; make mortgage payments; get additional voting rights for every mortgage payment it made; and have the ability to purchase the real properties acquired under their agreement for less than the properties’ market values. Additionally, the agreement grants the Church’s Parish Rector and all accredited priests with two votes, and it requires that 90% of board members approve selling the real properties.

OCB’s bylaws have changed over the years. The Church believes OCB’s current bylaws have been made without the appropriate vote and procedure, denying the Church’s ability to vote as a member of OCB.

On September 14, 2019, OCB purported to amend its bylaws. If valid, the amended bylaws: stripped the Church of its voting rights; removed Parish priests from the OCB’s Executive Committee of the Board; and deprived the Church from purchasing the properties at less than fair market value, among other things. The Church believes these changes stem from its request for a sale of property that OCB wrongfully denied.

Tseshkovsky demanded to inspect corporate records. However, he was denied access and was informed that some corporate records did not exist.

On March 28, 2019, OCB filed a Cross-Complaint against Tseshkovsky for (1) breach of fiduciary duty and (2) defamation.

LEGAL STANDARD

CCP ; 2033.030 and CCP ; 2030.030 limit the number of requests for admissions and special interrogatories to 35, and it is the burden of the party propounding the additional discovery to set forth in a declaration the reasons why and good cause for the additional discovery requests.  Otherwise, the responding party need only respond to the first 35 requests for admissions and special interrogatories issued. 

The court may make any order to protect any party from “unwarranted annoyance,

embarrassment, oppression, or undue burden and expense.”  CCP ; 2031.060(b).  If “good cause” is shown, the court can exercise its discretionary power to limit discovery responses to certain persons.  (CCP ; 2031.060(e); See In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298-99.) For good cause shown, courts may enter protective orders regarding unwarranted annoyances, embarrassment, oppression, undue burden and expense, and commercial information. (Fireman's Fund Ins. Co. v. Sup. Ct. (1991) 233 Cal.App.3d 1138, 1141.)

The fact that information sought is ;relevant to the subject matter ;does not preclude relief via a protective order. ; ;A court may make any order that justice requires to protect a party or other natural person from ;unwarranted annoyance, embarrassment or oppression or undue burden and expense.  The discovery burden is ;undue ;only if the inconvenience and expense of responding clearly outweigh the benefits likely to be obtained in the interrogatories are answered.  Unlike other discovery orders, a protective order may be granted simply on the court’s determination that ;justice so requires. ; ;The motion is directed to the court’s inherent power to control the proceedings before it. The granting or denial of relief, therefore, lies within the sound discretion of the trial court. ; ;(Greyhound Corp. v. Superior Court ;(1961) 56 Cal.2d 355, 379-381 (overruled on other grounds pertaining to attorney work product privilege).)

DISCUSSION

A. Re: SI, Set Two, Nos. 87-144

1. Objection

The Church objects to evidence submitted by OCB in support of its opposition to the

Church’s motion. The Church’s objection is sustained.

OCB objects to evidence submitted by the Church in support of its reply to OCB’s opposition. OCB’s objection is overruled.

2. Protective Order

The Church argues that OCB failed to meet its burden of justifying 144 SIs. Though OCB attached a declaration of necessity, OCB only states in a conclusory manner that the excessive discovery requests were justified “because of the complexity of the existing and potential issues in the case and conducting this discovery by specially prepared interrogatories is expedient and provides the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.” (Seabolt Decl., Exh. A, 14:20-23.)

In its opposition to the Church’s motion, OCB argues that the discovery requests are relevant and justified by the number of issues in the action. For example, there are issues as to: whether OCB received money for something other than an option to purchase OCB properties; which provisions of the bylaws control; whether there any other bylaw amendments; whether there are any other contracts that may be controlling; why the Church did not purchase the properties itself; and whether the Church has paid OCB valid consideration for the option to purchase the properties, among other things. (Opp., p. 14-17.) OCB requires responses to the additional SIs to obtain answers to these issues.

As a preliminary matter, the court notes that SI Nos. 88-93, 95-97, and 103-105 are moot due to the court’s ruling that the Church does not have voting rights within OCB. (Opp., 14:14-15.) As such, the court’s analysis applies to the remaining SIs, Nos. 87, 94, 98-102, and 106-144.

OCB has the burden of justifying its excessive discovery requests. The court finds that OCB has met its burden as to SIs, Nos. 87, 94, 98-102, and 106-144.

Accordingly, the court denies the Church’s motion for a protective order. However, the Church shall respond only to SIs, Nos. 87, 94, 98-102, and 106-144.

The Court is concerned about the “multiple rounds of discovery, undermining the [Civil Discovery Act’s] aim of clarity and simplicity and returning to the era of “paper[ing] to death” the opposition.” (Clement v. Alegre As such, the court discourages OCB from serving any further SIs in this action.

3. Sanctions

Both parties acted with substantial justification, and the court declines to award sanctions.

4. Conclusion

The Church’s motion for a protective order regarding SI, Set Two, Nos. 87, 94, 98-102, and 106-144 is DENIED.

The Church’s request for monetary sanctions is DENIED.

C. Re: RFA, Set Two, Nos. 174-219

1. Objection

The Church objects to evidence submitted by OCB in support of its opposition to the Church’s motion. The Church’s objection is sustained.

OCB objects to evidence submitted by the Church in support of its reply to OCB’s

opposition. OCB’s objection is overruled.

2. Protective Order

The Church argues that OCB failed to meet its burden of justifying 219 SIs. Though OCB attached a declaration of necessity, OCB only states in a conclusory manner that the excessive discovery requests were justified “because of the complexity of the existing and potential issues in the case and conducting this discovery by specially prepared interrogatories is expedient and provides the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought.” (Seabolt Decl., Exh. A, 19:20-23.)

In its opposition to the Church’s motion, OCB argues that the discovery requests are

relevant and justified by the number of issues in the action. For example, there are issues as to:

whether individual rectors have waived their rights as directors within OCB; for what purpose OCB was formed; whether OCB members and its president were removed from the Church Council without a vote; whether the Church pays for expenses related to the properties; and whether Plaintiffs have standing to sue OCB. (Opp., p. 14-15.) OCB requires responses to the additional RFAs to obtain answers to these issues.

As a preliminary matter, the court notes that RFA Nos. 175-198 and 203-204 are moot due to the court’s ruling that the Church does not have voting rights within OCB. (Opp., 14:5-6.) As such, the court’s analysis applies to the remaining RFAs – Nos. 174, 199-202 and 205-219.

OCB has the burden of justifying its excessive discovery requests.

OCB has the burden of justifying its excessive discovery requests. The court finds that OCB has met its burden as to RFAs – Nos. 174, 199-202 and 205-219.

Accordingly, the court denies the Church’s motion for a protective order. However, the Church shall respond only to RFAs – Nos. 174, 199-202 and 205-219.

The Court is concerned about the “multiple rounds of discovery, undermining the [Civil Discovery Act’s] aim of clarity and simplicity and returning to the era of “paper[ing] to death” the opposition.” (Clement v. Alegre As such, the court discourages OCB from serving any further RFAs in this action.

3. Sanctions

Both parties acted with substantial justification, and the court declines to award sanctions.

4. Conclusion

The Church’s motion for a protective order regarding RFAs – Nos. 174, 199-202 and 205-219 is DENIED.

The Church’s request for monetary sanctions is DENIED.

Case Number: *******9423    Hearing Date: August 13, 2020    Dept: 32

“Protection of the Holy virgin,” the russian orthodox church, et. al., Plaintiffs, v. OUR CHURCH BUILDING, INC., Defendants.	Case No.: *******9423 Hearing Date: August 10, 2020 [TENTATIVE] order RE: (1) motion for summary judgment or, in the alternative, summary adjudication on the first supplemental complaint (2) motion to relate and consolidate cases

Background

A. Complaint

Plaintiffs “Protection of the Holy Virgin,” the Russian Orthodox Church (Church) and Father Viktor Tseshkovsky (Tseshkovsky) (collectively, Plaintiffs) commenced this action against Our Church Building, Inc. (OCB) on December 24, 2018.

Plaintiffs’ operative pleading is contained in two documents: the First Amended Complaint (FAC) filed on February 21, 2019 and a First Supplemental Complaint (FSC) filed on October 9, 2019. Both pleadings assert causes of action for (1) specific performance by the Church against OCB, (2) declaratory relief by the Church against OCB, and (3) declaratory relief by Tseshkovsky against OCB. The FSC alleges in pertinent part as follows.

The Church is a Russian Orthodox church that was first incorporated in 1954. Over time, it grew into a larger church and needed to purchase property sufficient for the Church’s practice of religion.

In 1964, OCB was formed. It was formed for the purpose of assisting and supporting the Church in obtaining, improving, maintaining, and paying for real property for the Church’s practice of religion. OCB’s original bylaws state that OCB was established “for the purpose of purchasing a more spacious building for the [Church] in Los Angeles … and the purchase of other needed property for the [Church].”

In December 1964, the Church and OCB entered into a written agreement (1964 Agreement) to finance the purchase of real property located at 2041 Argyle Avenue, Los Angeles, CA 90068 (Church Property). The agreement makes clear that the Church was to play an integral role in the governance of OCB. Under the agreement, OCB agreed to (1) act as a backup for the Church if the Church could not make mortgage payments, (2) assist the Church with unexpected repairs or other expenses, and (3) give the Church additional voting rights in OCB contingent on payments made by the Church. Pursuant to the agreement, the Church made payments on the mortgage and received voting shares.

As time went by, OCB obtained additional properties all of which would become part of the Church. These properties included 2062 Vine Street, Los Angeles, CA 90068 (Apartment) and 2031 Argyle Avenue, Los Angeles, CA 90068 (Russian Hall).

Because the Church was providing mortgage payments to OCB and covering many of the expenses, the bylaws envisioned that OCB would sell the properties to the Church for the amount of money that OCB contributed to the purchase of these properties, not at their fair market value. Pursuant to the bylaws, the Church can purchase the Church Property for 37% of its fair market value, the Apartment at 82% of its fair market value, and Russian Hall at 43% of the cost for the purchase of the land and construction of the hall.

In November 2018, the Church informed OCB that it intended to exercise its right to purchase the properties pursuant to the bylaws. OCB refused.

In September 2019, OCB purports to have amended its bylaws in order to (1) remove the Church’s right to purchase the properties, (2) take Church members off the OCB Board of Directors (OCB Board), and (3) remove the Church as a member of OCB. These amendments are invalid because they were not adopted pursuant to the then-operative OCB bylaws.

In its first cause of action for specific performance, the Church seeks an order compelling OCB to specifically perform under its operative bylaws and sell the properties to the Church.

In its second cause of action for declaratory relief, the Church seeks (1) a declaration that the Church is a member of OCB with all membership rights, (2) a determination of how many membership votes the Church can cast, (3) a declaration that the Church’s priests are voting members of the OCB Board, (4) a determination of the voting rights of the Church members on the OCB Board, and (5) a declaration that the bylaws adopted by OCB in September 2019 were invalid.

In his third cause of action, Tseshkovsky seeks a declaration that he and all Church priests are members of the OCB Board with rights held by all directors of OCB and the ability to cast two votes on any matter that comes before the OCB Board for a vote.

B. Cross-Complaint

On March 28, 2019, OCB filed a Cross-Complaint against Tseshkovsky for (1) breach of fiduciary duty and (2) defamation.

MSJ / MSA[1]

Defendant OCB moves for summary judgment of the FSC or, in the alternative, summary adjudication of each of the FSC’s causes of action.

A. Specific Performance

“To obtain specific performance after a breach of contract, a plaintiff must generally show: ‘(1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract. [Citations.]’ ” (Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472.)

In the Church’s first cause of action, the Church alleges that the 1964 Agreement and OCB’s operative bylaws constitute a binding contract between OCB and the Church. (FSC ¶ 34.) The Church alleges that this contract provided the Church with the right to purchase the Church Property, the Apartment, and Russian Hall. (Ibid.) The Church alleges that OCB breached this contract by refusing to sell the properties. (Ibid.) The Church seeks an order compelling OCB to specifically perform its obligations under the contract by selling the properties to the Church. (FSC, Prayer for Relief, ¶ 1.)

1. 1964 Agreement

OCB argues that the 1964 Agreement does not furnish a viable basis for the specific performance sought because the agreement (1) is not a land sale contract and (2) does not identify the properties or the purchase price. The Court agrees with both points. The Church appears to concede this as well. (Opp. at 17 (“Once the binding 1964 voter acquisition agreement was completed, the bylaws became the only binding contract and those fully protected the Church’s rights.”).)

First, the 1964 Agreement, by its express terms, does not contemplate the sale of property to the Church. The 1964 Agreement sets forth a financial arrangement between the Church and OCB with respect to the mortgage on the Church Property. (FSC Ex. 1.) The 1964 Agreement provides the Church with membership voting power in OCB in exchange for mortgage payments: “The Holy Protection Church, by making monthly payments to [OCB] for the payment of the first mortgage, obtains in [OCB] that amount of votes, which equals to the amount of monies paid toward the first mortgage.” (FSC Ex. 1, ¶ 10.) A promise to provide voting power is, of course, not a promise to sell property. Thus, compelling OCB’s specific performance of this agreement does not provide the Church with the relief sought.

Second, “[t]he material factors to be ascertained to support a contract for the sale of real property are: (1) the seller; (2) the buyer; (3) the price; (4) time and manner of payment; and (5) description of the property sufficient to identify it.” (Blackburn v. Charnley (2004) 117 Cal.App.4th 758, 766.) The 1964 Agreement does not identify two of the parcels of real property — the Apartment or Russian Hall — which the Church seeks to purchase by specific performance. Indeed, the 1964 Agreement was entered into before OCB purchased the Apartment or Russian Hall. (DSS 17.) The 1964 Agreement also does not identify the price or time and manner of payment by which this purchase would occur. Therefore, the contractual terms of the 1964 Agreement are not sufficiently definite to enable the Court to order specific performance.

Third, the Court would point out the termination date set forth in the 1964 Agreement: “This Agreement shall go into effect upon proper signing by all representatives of both parties and shall remain in force until full payment of the first mortgage on the purchased property is completed.” (FSC Ex. 1.) It is undisputed that the mortgage on the purchased property — the Church Property — was paid off. (DSS 2.) Therefore, by the agreement’s express terms, it is no longer “in force.” The Court cannot order specific performance of a contract no longer in force.

2. 1990 Bylaws

The FSC is unclear as to what version of the bylaws the Church relies upon but does make clear that the Church views the 2019 OCB Bylaws as invalid. (FSC ¶¶ 26-28.) In opposition, the Church clarifies that it is relying upon the bylaws as amended in 1990 (1990 Bylaws). (DSS 26 (Church not disputing that amendments to OCB’s bylaws were passed in 1990); Opp. at 4 (“[I]t is undisputed that the 1990 bylaws were in effect at the time of it[s] purported amendments.”).)

“The by-laws of a corporation constitute a contract between the shareholders and the corporation.” (Casady v. Modern Metal Spinning & Mfg. Co. Because bylaws constitute a contract between the shareholders and the corporation, specific performance can be enforced against a corporation because of its breach of corporate bylaws. (See Riverside Land Co. v. Jarvis (1917) 174 Cal. 316, 327 (ordering specific performance against corporation based on corporate articles, bylaws, and stock certificates of corporation).)

OCB contends that the 1990 Bylaws do not furnish a tenable basis for specific performance because (1) the conditions of purchase set forth by the 1990 Bylaws have not been satisfied, (2) the 1990 Bylaws, like the 1964 Agreement, is devoid of sufficient information to allow for specific performance, (3) the 1990 Bylaws are not supported by consideration and thus do constitute a valid contract, (4) the 2019 bylaw amendments took away the Church’s right to purchase the properties, and (5) the Church lacks standing to challenge the 2019 bylaw amendments.

a. Conditions of Purchase in 1990 Bylaws

OCB contends that the 1990 Bylaws, when read as a whole, show that OCB provided the Church with only an opportunity to make an offer to purchase the properties. OCB argues that the Church’s right to purchase the properties was contingent on, among other things, obtaining 90% of the votes of the OCB members. OCB submits undisputed evidence that OCB never held a vote on whether to sell the property. (DSS 13.)

“ ‘It is generally accepted that corporate bylaws are to be construed according to the general rules governing the construction of statutes and contracts.’ [Citation.] Bylaws must “be given a reasonable construction and, when reasonably susceptible thereof, they should be given a construction which will sustain their validity....” ’ ” (Singh v. Singh (2004) 114 Cal.App.4th 1264, 1294.)

Section 3 of the 1990 Bylaws is entitled “Administration of Corporation matters.” Paragraph 3.04 states: “Questions regarding mortgaging and selling of property, owned by [OCB], are resolved by a majority of 90% of votes, represented at a General Meeting.” Paragraph 3.05 states: “Questions in connection with any changes of these By-Laws, closing out of [OCB], or questions regarding the relationship with the Church, will be resolved at General Meetings and with majority of 90% of the votes. Discussions of these questions shall be allowed only by decision of the Board of Directors.” (Taylor Decl. Ex. H.)

Section 6 of the 1990 Bylaws is entitled “Conditions for becoming the full owner of the Corporation Properties on the part of the Parish.” Paragraph 6.02 states in pertinent part:

The Parish [i.e., the Church] may buy all the properties from [OCB], having met all following conditions:

a. All three properties belonging to [OCB] must be purchased simultaneously. In no case can the Parish become the legal owner of only a part of the property, since [OCB] considers the properties indivisible.

b. Prior to the purchase of this property, all loans made by the banks through first mortgages, must be paid off.

c. Prior to the purchase of this property, all donations and loans made by the members of [OCB] must be reimbursed: 80% of sums received for the Church property purchase, and 100% of those received for the apartment house acquisition.

d. The value of the entire property at the time of purchase must be evaluated either by a Bank or other official agencies, and the Protection of the Holy Virgin Church must deliver to [OCB] that sum which equals the percentage of participation of the members of [OCB] at the time the properties were acquired, i.e. 37% at purchase of the Church; 82% at purchase of the apartment house, and 43% at purchase of the lot and construction of the ‘Russian Hill.’ ” (Taylor Decl. Ex. H (underlining in original).)

The Court concludes that the language of the 1990 Bylaws does not support OCB’s argument. As evidenced by its title and contents, section 6 is intended to set forth the specific procedure by which the Church can purchase the properties from OCB. Paragraph 6.02 states that the Church may buy the properties from OCB upon meeting the conditions set forth therein. Paragraph 6.02 does not contain the voting requirement posited by OCB. Therefore, the 1990 Bylaws indicate that this voting requirement does not apply to the Church’s right to purchase the properties.

Section 3 does not alter this conclusion. Paragraph 3.04 deals with questions about selling and mortgaging of the property generally. This paragraph is not controlling because the Church is not asking a “question” about selling the properties. The Church is demanding the sale of the properties and such a demand is plainly conveyed and described by paragraph 6.02. If paragraph 3.04 were intended to impose the voting requirement posited by OCB, the Court concludes that the drafters would have articulated this requirement more precisely, e.g., “the Church Property, Apartment, and Russian Hall cannot be sold without 90% of the OCB members’ votes.”[2] Paragraph 3.05 is not controlling because the section governs “questions” and does not mention the properties or a sale of the properties.

In reply, OCB directs the Court’s attention to paragraph 7.02. Section 7 is entitled “Relationship between the Corporation and the Church Administration.” Section 7.02 states: “In case of any conflict with the Church Administration (such as took place in 1962-63 in Los Angeles), the Corporation has the right to dispose of the property, as the legal and rightful owner of that property, even to the point of selling it. However, such a decision must be approved by 90% of the votes present.” (Taylor Decl. Ex. H.) OCB claims that paragraph 7.02 applies because a similar conflict has arisen between the Church and OCB. OCB claims that paragraphs 3.04 and 7.02 are a clear and express manifestation of an intent not to be bound by a purported contract to sell the properties. This argument was waived because it was not clearly raised in OCB’s moving papers. (See Mot. at 8 (citing paragraph 7.02 as a reason why the Church’s right to purchase the properties “was tempered”).) In any event, consideration of this additional argument is not helpful. OCB has not shown that this is a conflict similar to the one that the parishioners faced in 1962-63. That is, OCB has not shown that there is a conflict with the “Church Administration” caused by a “very controlling” person who, among other things, does not hold Church meetings, account for donated money, and incites violence among the parishioners. (See Makarenko Decl. ¶¶ 6-8.)

b. Sufficient Information to Grant Specific Performance

OCB argues that the 1990 Bylaws provide insufficient information as to the addresses of the properties to be sold and the price of the putative sale. As noted ante, “[t]he material factors to be ascertained to support a contract for the sale of real property are: (1) the seller; (2) the buyer; (3) the price; (4) time and manner of payment; and (5) description of the property sufficient to identify it.” (Blackburn v. Charnley (2004) 117 Cal.App.4th 758, 766.)

OCB’s argument about the property addresses is easily rejected. The 1990 Bylaws sufficiently identify the three properties at issue: (1) “the Church at 2041 Argyle Ave.,” (2) “the apartment house at 2062 N. Vine Street,” and (3) “ ‘Russian Hall’ at 2033 Argyle Ave.” (Taylor Decl. Ex. H, ; 6.01.) While the Church lists the Russian Hall address as 2031 Argyle Avenue in the FSC (¶ 8), this is attributable to the fact that Russian Hall has numerous postal addresses, including 2031 Argyle Avenue. (Sorokin Decl. ¶ 16.) OCB has not demonstrated a legitimate problem with identifying the three properties owned by OCB which the Church seeks to purchase.

OCB’s second point is that paragraph 6.02(d) is not a purchase price but one of several prerequisites that the Church must satisfy “before it is eligible to seek to purchase the properties.” (Mot. at 21.) This paragraph states: “The value of the entire property at the time of purchase must be evaluated either by a Bank or other official agencies, and the Protection of the Holy Virgin Church must deliver to the Corporation that sum which equals the percentage of participation of the members of the Corporation at the time the properties were acquired, i.e. 37% at purchase of the Church; 82% at purchase of the apartment house, and 43% at purchase of the lot and construction of the ‘Russian Hill.’ ”

“Whether a contract is certain enough to be enforced is a question of law for the court.”

(Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 734.) “The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.” (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 209.) “If, by contrast, a supposed ‘contract’ does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811.)

“The modern trend of the law is to favor the enforcement of contracts, to lean against their unenforceability because of uncertainty, and to carry out the intentions of the parties if this can feasibly be done. Neither law nor equity requires that every term and condition of an agreement be set forth in the contract. Option agreements have generally been held or recognized to be sufficiently definite as to price to justify their enforcement if either a specific price is provided in the agreement or a practicable mode is provided for the court to determine price without any new expression by the parties themselves.” (Goodwest Rubber Corp. v. Munoz (1985) 170 Cal.App.3d 919, 921; see also Forde v. Vernbro Corp. (1963) 218 Cal.App.2d 405, 408 (“If the parties provide a practicable, objective method for determining this price or compensation, not leaving it to the future will of the parties themselves, there is no such indefiniteness or uncertainty as will prevent the agreement from being an enforceable contract.”).)

The Court finds the Church’s interpretation of this paragraph more compelling: “Section 6.02(d) reflects the parties’ intent to allow the Church to purchase the properties at a discount, reflecting the amount of money the Church had provided to purchase the properties. Whereas the terms ‘fair market value’ or ‘purchase price’ were not used, … the term ‘the value of the entire property at the time of the purchase must be evaluated either by a Bank or other official agencies …’ means fair market value, appraised value, or its equivalent.” (Opp. at 18-19.) Read in context, paragraph 6.02(d) is the price term which one would logically expect to find in provisions providing another with the right to purchase real property. Moreover, characterizing this contractual term as something else, like a condition requiring repayment of loans, does not alter the purpose of paragraph 6.02 generally. According to that paragraph, the Church may purchase the properties upon satisfaction of the conditions set forth in that paragraph. The Church’s repayment of loans, donations, and contributions made by OCB members is the payment which OCB agreed to accept in exchange for the properties.

c. Consideration to Support Bylaws as Contract

OCB contends that there is no consideration supporting the Church’s purported contractual right under the 1990 Bylaws. OCB contends that the Church’s payments to OCB were a preexisting duty fulfilled in exchange for votes within OCB pursuant to the 1964 Agreement. This argument is without merit. The obligations of the Church under the 1964 Agreement ended with full payment of the first mortgages. (See FSC Ex. 1, ¶ 14.) Payment of the mortgages is one of the express conditions for purchase of the properties. (Taylor Decl. Ex. H, ; 6.02(b).) To purchase the properties in question, the Church is additionally obligated to recompense OCB members for donations and loans made to the Church and make payments at the aforementioned discounted prices. These are not preexisting obligations and constitute adequate consideration under the circumstances. (See Henderson v. Fisher (1965) 236 Cal.App.2d 468, 474 (“[T]he proper test to apply in determining adequacy of consideration in a contract involving the transfer of property is not whether the promisor received the highest price obtainable for his property, but whether the price he received is fair and reasonable under the circumstances. [Citations.] Moreover, in addition to the value of the property to be conveyed, the court may consider such factors as the relationship of the parties, their friendship, love, affection, and regard for each other, and the object to be obtained by the contract.”).)

d. Removal of Right to Purchase by 2019 Bylaws

OCB contends that the Church’s right to purchase the properties was revoked by the 2019 OCB bylaws (2019 Bylaws). (DSS 9-10.) The 2019 Bylaws state that “[a]ll prior bylaws of [OCB] that may exist are hereby revoked, void, and of no effect, and the following bylaws … shall be and hereby are the only bylaws governing [OCB].” (Taylor Decl. Ex. L.) As relevant to this dispute, the 2019 Bylaws purportedly removed the Church’s right to purchase the properties. (See id. ; 5.)

The Church claims that the 2019 Bylaws are invalid because the bylaws were not adopted in accordance with the 1990 Bylaws.

The 1990 Bylaws state in relevant part: “Questions in connection with any changes of these By-Laws … will be resolved at General Meetings and with majority of 90% of the votes. Discussion of these questions shall be allowed only by decision of the Board of Directors.” (Taylor Decl. Ex. H, ; 3.05; see also Mot. at 17 (citing this section as OCB’s authority to amend bylaws).) Accordingly, under the 1990 Bylaws, amending the bylaws requires (1) an OCB Board decision to place the bylaw amendment before the OCB members at a General Meeting and (2) a vote in support of the bylaw amendment by 90% of the OCB members.

i. 1990 Bylaws’ Impact on Church as an OCB Member

According to the 1990 Bylaws, membership in OCB can “be conferred only” upon (1) “the Clergy of the Parish” and (2) “those members of the Parish in good standing … who have donated no less than $250.00 to [OCB].” (Taylor Decl. Ex. H, ; 2.01.) The number of votes to which each member is entitled is contingent on the size of the member’s donations to OCB or the size of the member’s “contribution through labor” to OCB. (Id. ;; 2.02, 2.14-15.) As to the Church specifically, the 1990 Bylaws state that the Church “becomes a [OCB] member” “[i]n donating any sum to [OCB].” (Id. ; 2.06.) “All funds donated by the [Church], as well as all voting rights results therefrom, are subject to mutual agreement in writing between the [Church] and the Board of Directors of [OCB], in accordance with all other paragraphs of these By-Laws.” (Ibid.)

According to the 1990 Bylaws, members of the OCB Board shall include (1) “the Parish Rector and all accredited Priests of [the Church], with a right to two (2) votes each,” (2) “[t]he President of [OCB] and other staff members of the Administrative Board of the Board of Directors,” and (3) OCB members donating more than a certain sum of money. (Taylor Decl. Ex. H, ;; 2.02(f), 4.01, 4.02.) The “other staff members” of the Administrative Board include two vice-presidents, a secretary, and treasurer. (Id. ;; 3.01, 3.02.)

The pre-1990 OCB bylaws also stated that OCB’s “Board of Directors shall include four representatives of the Parish Council of the [Church], as appointed by the Parish Council from among those lawfully selected members of the Parish Council…. Such representatives of the Parish Council have rights in [OCB] and in the Board of Directors in accordance with the amounts contributed by the [Church] to [OCB] (in accordance with Section 2 hereof), and they shall exercise them in accordance with their conscience.” (Fennell Decl. Ex. 2, ; 4.05.) The pre-1990 OCB bylaws contained a similar provision giving “the Sisterhood of the Parish” three representatives on the OCB Board. (Id. ; 4.05.1.)

As discussed more post, paragraphs 4.05 and 4.05.1 of the pre-1990 Bylaws may no longer be present in the 1990 Bylaws. Instead, a sheet is superimposed upon these two paragraphs stating: “From the Minutes of the Meeting of [OCB], dated 28 January 1990. Additions to Paragraphs 4.05 & 4.05.1: Listened to President’s announcement that it is imperative to make a resolution regarding participation of Church Council members during the voting of important matters. It is suggested that members of Church Council and Sisterhood cannot vote despite possessing votes of the Parish or Sisterhood. For accepting this decision – 191 ½ Against – 2 ½.” (Taylor Decl. Ex. H, p. 109.)

The minutes of the OCB Meeting held in January 1990 provide in pertinent part: “They heard the chairman’s statement that it was necessary to adopt a resolution on the participation of church council members when voting on important issues. It is proposed to vote in favor of members of the Church Council and the Sisterhood not being able to vote if they possess the votes of the parish or the sisterhood [sic.]. 191 ½ voted to adopt this decision, and 2 ½ voted against.” (Fennell Decl. Ex. 5 (underlining in original).) Abutting this text, the minutes state: “Added to ; 4.05 and ; 4.05.1.” (Ibid.)

This 1990 bylaw amendment was the subject of subsequent general meetings.

The minutes of a general meeting held on December 8, 1991 state: “The third point of our Agenda is a short explanation regarding counting of shares, according to an amendment to Par. 2.02 of the Corporate By-Laws, made two General meetings ago. At that meeting it was decided that questions of finances and electing officers of the Corporation, the shares of the Sisterhood and shares of the Parish are not counted. This is now part of the By-Laws. Only personal shares of members will be used in this next election.” (Taylor Decl. Ex. I.)

The minutes of a general meeting held on July 26, 1998 state that a member of the bylaws committee “was concerned about the legality of the changes that were made to [paragraphs 4.05 and 4.05.1] in 1990 and that they should be returned to their original text.” (Taylor Decl. Ex. K.) The committee voted 3-1 to bring up the revisions for discussion at the general meeting. (Ibid.) At the general meeting, Evelyn Sirch, OCB’s President and a Church Council member (OAEOE 76), presented “the rationale for revising the 1990 amendment to paragraphs 4.05 and 4.05.1.”

“In January 1990, I.A. Awtamonow proposed the changes to paragraphs 4.05 and 4.05.1, i.e., members of the Church Council and the Sisterhood do not have the right to vote using [OCB] votes of the Parish or the Sisterhood. The revision was approved by the [OCB] meeting with 191 ½ votes in favor of this change … and 2 ½ against. This was done to protect [OCB] and the [Church] during those years where there were very unpleasant and unclear and strained relationships with the late Archbishop Anthony (Sinkevich). The concern then was that our parish may be infiltrated by supports of Archbishop Anthony and via the Church Council and Sisterhood. Because the number of [OCB] votes held by the Parish Council and by the Sisterhood exceeds all votes one can imagine what could have happened with the [OCB] and subsequently with the Protection Church. It is believed that this danger has now passed and it is moved that the meeting vote to rescind the decision (resolution) made by the Corporation meeting in January 1990 and to return the voting privileges to the Parish Council and Sisterhood.” (Taylor Decl. Ex. K.)

In response, Vera Gor (Gor), another member of the Church Council (OAOE 76), provided a rationale for why the amendment should remain:

“Each Corporation protects and insures itself from unfriendly takeovers. And for this reason the By-Laws were amended. The January 1990 Biennial meeting of the Board of Directors almost unanimously approved the changes to paragraphs 4.05 and 4.05.1.

The By-laws were amended because the Parish now has more votes that the total sum of all the members of [OCB] (250 vs. 210). The Parish votes alone can overturn the unanimous votes of [OCB] members, thereby [OCB] members have no say.

Then there was one threat. Today that threat does not exist — but that does not mean that tomorrow another threat will not appear.

It is the responsibility of [OCB] to protect itself. If this meeting does not agree with the method currently specified in the By-Laws, e.g., restricting the votes of the Parish and the Sisterhood, then let’s find and approve another method of protection. This must be done slowly, judiciously, deliberately, having thought through all points. But to willfully place [OCB] under attack is nor right, not smart.” (Taylor Decl. Ex. K.)

Andrey Sergeyevsky, another Church Council member (OAOE 76), expressed concerns about the amendments. “[T]here will only [be] a handful of [OCB] members to decide extremely important issues. It is extremely important that the Parish somehow is transitioned.” (Taylor Decl. Ex. K.)

Pavel Golubovs, another Church Council member (OAOE 76), “expressed the benefits of [OCB] to protect [the Church] from hostile takeover…. The bylaws as they stand now work as a safeguard. It is like an insurance policy to prevent things from going wrong.” (Taylor Decl. Ex. K.)

Bishop Alexander Mileant (Mileant), yet another Church Council member (OAOE 76), stated that OCB did not “need[] to be protected from the parish.” Mileant opposed the bylaws: “let’s say that Mr. Grishanovich is the President of [OCB], everybody likes him and we all trust him. What if 10 years he became insane, and he decides that he wants to go to the Moscow Patriarchite, or that he wants to have his own church and become its Bishop. All this property is his and who will stop him?” Gor responded: “If [OCB] is destroyed and everything belongs to the Parish, and we do not have the right to say anything, and one individual starts leading the Parish in the wrong decision — what then? The Parish will prescribe in what direction we will go? We may not wish to go in that direction.” Mileant replied that “there is no danger, because the Parish is comprised of the members of [OCB].” (Taylor Decl. Ex. K.)

The 1998 general meeting ended without changes to the bylaws. (Taylor Decl. Ex. K.)

As the Church notes, the Court must determine what effects the 1990 bylaw amendments had on its right to vote as an OCB member. (Opp. at 5.) Because the bylaws constitute a contract between the OCB members and OCB, the rules of interpretation cited ante apply. Moreover, the summary judgment rules on contract interpretation apply. “Interpretation of a written instrument becomes solely a judicial function only when it is based on the words of the instrument alone, when there is no conflict in the extrinsic evidence, or when a determination was made based on incompetent evidence.”  (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395.) “This is true even when conflicting inferences may be drawn from the undisputed extrinsic evidence [citations] or that extrinsic evidence renders the contract terms susceptible to more than one reasonable interpretation. [Citations.] If, however, there is a conflict in the extrinsic evidence, the factual conflict is to be resolved by the jury.” (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1126-27.)

The Court concludes that the language of the amendment is ambiguous but the extrinsic evidence is not in conflict. The extrinsic evidence shows that the 1990 Bylaws divested the Church of the power to vote as OCB members.

The Court starts with the language of the amendment. “Additions to Paragraphs 4.05 & 4.05.1: Listened to President’s announcement that it is imperative to make a resolution regarding participation of Church Council members during the voting of important matters. It is suggested that members of Church Council and Sisterhood cannot vote despite possessing votes of the Parish or Sisterhood. For accepting this decision – 191 ½ Against – 2 ½.” (Taylor Decl. Ex. H, p. 109.) This amendment, on its face, is amenable to OCB’s interpretation that OCB took away the Church’s right to vote as an OCB member because the amendment expressly states that the Church “cannot vote despite possessing votes of the Parish.” On the other hand, the amendment does not clarify which power to vote is being stripped away from the Church, and the amendment purports to make “additions” to paragraphs 4.05 and 4.05.1 by divesting the Church of its power to vote. Paragraphs 4.05 and 4.05.1 provided the Church and Sisterhood with the power to appoint additional representatives to the OCB Board. These paragraphs were not the basis of the Church’s power to vote as an OCB member (;; 2.02, 2.06) or the Church’s power to have some representation on the OCB Board of Directors (; 4.01). The amendment’s placement indicates that OCB might have implemented the amendment to curtail the Church’s power to make these additional appointments on the OCB Board.

Because of this ambiguity, the Court must look to extrinsic evidence. Subsequent minutes of OCB general meetings make clear that the amendment was intended to strip the Church of voting powers as members. The minutes of the December 1991 general meeting reflect that the amendment was to Paragraph 2.02 of the OCB bylaws (the provision setting forth voting powers of OCB members) and states that “the shares of the Sisterhood and shares of the Parish are not counted” as to “questions of finances and electing officers of the Corporation.” (Taylor Decl. Ex. I.) The minutes of the December 1998 general meeting show that numerous Church Council members openly accepted that the 1990 bylaw amendment had stripped the Church of its right to vote as an OCB member. (See, e.g., Taylor Decl. Ex. K (“The By-laws were amended because the Parish now has more votes that the total sum of all the members of [OCB] (250 vs. 210). The Parish votes alone can overturn the unanimous votes of [OCB] members, thereby [OCB] members have no say.”).) For this reason, several Church Council members sought to change the bylaws and expressed concerns that the bylaws enabled OCB to act without accountability to the Church. Other Church Council members saw value to the amendment’s safeguards against Church encroachment and advocated in favor of keeping it.

A declaration from Ludmyla P. Makarenko (Makarenko) is also probative. Makarenko has been a parishioner and member of the Church for over 50 years. (Makarenko Decl. ¶ 2.) Makarenko states that OCB was formed in order to protect members from a “very controlling” bishop presiding over another church who had caused a rift among the parishioners. (Makarenko Decl. ¶¶ 6-9.) This rift prompted many parishioners, including Makarenko, to attend the Church in order to avoid the bishop’s control. (Makarenko Decl. ¶¶ 9-13.) According to Makarenko, the parishioners founded OCB so that the corporation could purchase and maintain the Church properties and ensure that the parishioners would not once again be chased away from their place of worship or become subject to a hostile takeover. (Makarenko Decl. ¶¶ 13-14.) Makarenko states that the Church stopped participating in OCB in the 1980s but still held a large number of membership votes in OCB by virtue of payments made on the mortgage for the Church Building. (Makarenko Decl. ¶ 16.) Makarenko recalls having conversations with various Church and OCB members where they discussed removing the Church as an OCB member. (Makarenko Decl. ¶ 17.) “This would serve two functions. First, it made practical sense to remove the Church’s votes because the Church was not participating in OCB governance. Second, it would ensure that OCB would remain protected from a hostile takeover.” (Makarenko Decl. ¶ 18.) Makarenko states that the decision to amend the bylaws was made among the members of OCB, the Church, and the Sisterhood which, although three separate corporations, were comprised of many of the same individuals. (Ibid.) Makarenko states that she received the minutes from the January 1990 OCB general meeting and understood that the OCB bylaws had been amended to remove the Church’s right to vote. (Makarenko Decl. ¶ 19.)

All of this extrinsic evidence points in one direction: the 1990 amendments to the bylaws divested the Church of its power to vote as an OCB member. The Church Council’s remarks at the 1998 meeting serve as a clear concession of this fact.

In opposition, the Church provides a single piece of extrinsic evidence to rebut this showing: a document from 1996 which purportedly shows that the Church had 271 OCB votes. (Sorokin Decl. Ex. 1, OAOE 73.) The document suffers from several evidentiary issues.

First, the source of this document is not consistently articulated. Alexey Sorokin (Sorokin) is the Church treasurer and, in this capacity, has access to all the Church’s financial records and its resolutions. (Sorokin Decl. ¶ 5.) Sorokin states that documents attached to his declaration bearing the bates stamp “CHURCH” are documents referring to Church ledgers or documents the Church has. (Sorokin Decl. ¶ 7.) The document in question is bates stamped “CHURCH” so presumably it is a Church document. (OAOE 73.) Confusingly, however, Sorokin has prepared a chart to preface the document. (OAOE 60.) In a footnote appended to the chart, Sorokin states that the document is from OCB’s boxes. (Ibid.)

Second, as OCB notes, CRC Rules state that “[e]xhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter.” (CRC Rule 3.1110(g).) The document is not certified under oath by a qualified interpreter. Instead, Sorokin states in a footnote in the aforementioned chart that he translated the document. (OAOE 60, 72-73.)

Third, Sorokin states that this chart reflects OCB’s recognition that the Church is a member of OCB with 271 votes. (OAOE 60.) The Court finds this to be a bridge too far. The contents and function of the document are too unclear because the document is presented with no context and the Church has engaged in no efforts to clarify. For example, the document places a “D” and a “checkmark” next to several of the purported OCB members but not next to the Church or Sisterhood. This could be significant. This could mean that the Church and Sisterhood were no longer viewed as OCB members.

Given these evidentiary defects, the Court finds the document inadmissible and incapable of establishing a triable issue of material fact here.

The Church also points to the 1991 minutes and states that the amendment in question was narrower in scope than posited by OCB. The Church contends that the amendment only divested the Church of power to vote on “questions of finances and electing officers of the Corporation.” (Taylor Decl. Ex. I.) In view of the actual language of the amendment, the Court finds this interpretation untenable. The amendment states in pertinent part: “[M]embers of Church Council and Sisterhood cannot vote despite possessing votes of the Parish or Sisterhood.” The amendment does not limit the Church’s power to vote on “questions of finances and electing officers of the Corporation.” The 1991 minutes are probative in the sense that the minutes show that the Church was divested of voting power as an OCB member.

The Church contends that OCB breached paragraphs 2.06 and 2.09 of the then-operative OCB Bylaws by adopting this amendment. Paragraph 2.06 states: “All contributions made by the [Church] to [OCB], as well as the relevant voting rights, are subject to the agreements between the [Church] and the Board of Directors of [OCB].” (Fennell Decl. Ex. 2 (1983 Bylaws).)[3] Paragraph 2.09 states that “Expulsion from the Corporation is possible only in extreme cases, subject to valid reasons, by the decision of the General Meeting of [OCB] made by a majority of 90% of votes….” (Fennell Decl. Ex. 2 (1983 Bylaws).) This argument is barred by the four-year statute of limitations applicable to written instruments. (CCP ; 337(a) (providing four-year statute of limitations for “[a]n action upon any contract, obligation or liability founded upon an instrument in writing”).) This limitations period expired over two decades ago. Moreover, OCB did not breach paragraph 2.09 by adopting the amendment. OCB has articulated its reasons for removing the Church. These reasons include the fear of a hostile takeover.

The Church contends that it is still an OCB member even if the 1990 Bylaws took away its voting rights because of Corporations Code section 9330, which vests a nonprofit religious corporation with the right to create different classes of members. This statute provides: “A corporation may issue memberships having different rights, privileges, preferences, restrictions, or conditions, as authorized by its articles or bylaws.”

In sum, the Court concludes that while the Church may still be an OCB member, the bylaw amendments adopted in 1990 took away the Church’s power to vote as an OCB member. The Church has failed to present any extrinsic evidence, including evidence about the parties’ course of conduct, which is inconsistent with this interpretation.

ii. 1990 Bylaws’ Impact on Church as an OCB Director

As the Church repeatedly emphasizes, the Church’s right as a member in OCB and as a director in OCB are separate matters. The OCB bylaws contemplates these groups as separate and, as relevant here, mandate that the OCB Board reach a decision as to whether the bylaws should be amended before the amendment is presented to the OCB members. (Taylor Decl. Ex. H, ; 3.05.) OCB even appears to concede this point because OCB notes that discussions about bylaw changes “will be allowed ‘only by decision of the Board of Directors.’ ” (Mot. at 20 (citing ; 3.05).) The Court must therefore determine what effect the 1990 amendments had on the Church’s right to have members on the OCB Board.

As noted ante, the “sheet” with the language of the amendment is superimposed upon paragraphs 4.05 and 4.05.1. Those paragraphs give the Church and Sisterhood the right to appoint additional members to the OCB Board of Directors. This placement suggests that the amendment is removing this right. However, the amendment purports to be an “addition” to these paragraphs, not a replacement, so the amendment’s language sows ambiguity. Moreover, paragraphs 4.05 and 4.05.1 apparently remained in the 1990 bylaws. (Taylor Errata Decl. Ex. H.) According to OCB’s former counsel, “there are two page 12s [i.e., the page containing paragraphs 4.05 and 4.05.1] in the bylaws as the post-in note is how OCB memorialized the amendments to Section 4.05 and 4.05.1.” (Cameron Obj. Decl. ¶ 16.) That paragraphs 4.05 and 4.05.1 remained in the bylaws, in conjunction with the fact that the amendment purports to be an “addition” to those paragraphs, indicates that these paragraphs remain in full force and effect in the 1990 Bylaws.

Furthermore, as the Church repeatedly notes, the 1990 amendment does not appear to have any impact upon paragraph 4.01 which states that the members of the OCB Board include “the Parish Rector and all accredited Priests of [the Church], with a right to two (2) votes each.” This paragraph alone indicates that the Church still retained some powers on the OCB Board. (Mot. at 23 (“OCB concedes that its previous bylaws provided the parish rector and all priests were members of the board of directors of OCB….”).)

In its moving and reply papers, OCB does not address this issue at all. OCB instead argues that Tsheshkovsky and the Church have no rights as directors because the 2019 Bylaws removed said rights. (Mot. at 22-23.) However, this argument places the cart before the horse. In order to implement the 2019 Bylaws which stripped Tseshkovsky and the Church of these directors rights, OCB had to adopt the 2019 Bylaws in accordance with the corporation’s then-operative bylaws and other relevant laws.

The Church has established a triable issue of material fact as to whether OCB adopted the 2019 Bylaws in accordance with the law because, assuming there was a Board meeting to place the 2019 Bylaws before the OCB members, Tsheshkovsky did not receive notice.

“[A] special meeting of the board of directors held without the requisite notice is void, and directors present thereat cannot perform any valid corporate act.” (Wood Estate Co. v. Chanslor (1930) 209 Cal. 241, 247 (collecting cases supporting this principle); see also Corp. Code ; 307(a)(2) (“Special meetings of the board shall be held upon four days’ notice by mail or 48 hours’ notice delivered personally or by telephone …. The articles or bylaws may not dispense with notice of a special meeting.”).)

In this case, the evidence shows that OCB circulated a notice of a special meeting of the OCB members in September 2019. (Kettaneh Decl. Ex. A.) The notice states that the OCB Board “has called a Special Meeting of the Members of the Corporation … to consider and vote on amending, repealing, and/or replacing the Bylaws of [OCB]. Specifically, the Board of Directors has approved repealing the existing Bylaws and adopting the proposed new Bylaws attached to this Notice.” (Ibid.)

Tsheshkovsky, the Church Rector, declares that he was not present at the alleged OCB Board meeting where the bylaw amendments were discussed and avers that he has never received a notice of an OCB Board meeting at any point during his tenure with the Church. (Tsheshkovsky Decl. ¶ 11.)

Because the Church has established a triable issue of material fact as to whether Tseshkovsky is an OCB director and whether Tseshkovsky received notice of the OCB Board meeting, OCB is not entitled to summary adjudication of the Church’s specific performance claim. This is so because the notice defect may have voided the OCB Board’s decision to place the bylaw amendments before the OCB members and, in turn, voided the OCB members’ decision to approve the bylaw amendments. If the 2019 Bylaws are void, then the Church has the right to purchase the properties pursuant to the 1990 Bylaws.

e. Standing to Assert a Challenge to the 2019 Bylaws

OCB contends that the Church lacks standing to challenge the 2019 Bylaws because the Church is no longer a member of OCB. OCB relies upon Corporations Code section 9141: “Subject to Section 1942: (a) No limitation upon the activities, purposes, or powers of the corporation or upon the powers of the members, officers, or directors, or the manner of exercise of such powers, contained in or implied by the articles … shall be asserted as between the corporation or member, officer or director and any third person, except in a proceeding: (1) by the authorized number of members (Section 5036), by any person authorized by the articles or bylaws to bring an action, or by the state to enjoin the doing or continuation of unauthorized activities by the corporation or its officers, or both, in cases where third parties have not acquired rights thereby, or (2) by the authorized number of members (Section 5036), by any person authorized by the articles or bylaws to bring an action, by any member suing in a representative suit, or by the corporation, against the officers or directors of the corporation for violation of their authority.”

The Court concludes that OCB reads this statute too broadly. This is not an action to to limit the powers of the corporation or the powers of its members, officers or directors. (See, Classis of Central California v. Miraloma Community Church (2009) 177 Cal.App.4th 750, 769.)

Also, as stated ante, paragraph 4.01 indicates that the Church still retained some powers on the OCB Board. Said paragraph states that the members of the OCB Board include “the Parish Rector and all accredited Priests of [the Church], with a right to two (2) votes each.” As such, the Church and Tseshkovsky would have standing to bring this action. (See, Corporations Code, Section 9142 [director of the corporation may bring action to enjoin, correct, obtain damages for or to otherwise remedy a breach of a trust.])

Further, Corporations Code, Section 9141(b), specifically provides that a contract made in the name of the corporation binds the corporation. The Church is seeking to enforce the bylaws of OCB as a contract.

Based upon the foregoing, the court finds that the Church and Tseshkovsky have standing to bring this action.

B. Declaratory Relief Claims

In its second cause of action for declaratory relief, the Church seeks (1) a declaration that the Church is a member of OCB with all membership rights, (2) a determination of how many membership votes the Church can cast, (3) a declaration that the Church’s priests are voting members of the OCB Board, (4) a determination of the voting rights of the Church members on the OCB Board, and (5) a declaration that the bylaws adopted by OCB in September 2019 are invalid. (FSC, Prayer for Relief ¶ 2.)

In his third cause of action, Tseshkovsky seeks a declaration that he and all Church priests are members of the OCB Board with rights held by all directors of OCB and the ability to cast two votes on any matter that comes before the OCB Board for a vote. (FSC, Prayer for Relief ¶ 3.)

The Court has already assessed the merits of this motion with respect to these declaratory relief claims. The Court has concluded (1) the Church is not a voting member of OCB pursuant to the 1990 Bylaws, (2) the Church has established a triable issue of material fact as to whether the Church’s priests, including Tseshkovsky, are voting members of the OCB Board, and (3) as such, the Church has established a triable issue of material fact as to whether the 2019 Bylaws are valid.

OCB contends that the Church is not entitled to any declaratory relief because declaratory relief operates prospectively and is not intended to redress past wrongs. The Court disagrees. The Church presently contends that (1) the Church is an OCB member, (2) the Church has OCB director’s rights, and (3) the 2019 Bylaws are invalid. OCB contests all three contentions. A judicial determination of these contentions would put the parties’ dispute to rest and avoid future probable conflicts between the parties as to control of the corporation and ownership of the properties at issue. These issues are therefore a proper subject for declaratory relief. (See Lee v. Silveira (2016) 6 Cal.App.5th 527, 546 (“The ‘actual controversy’ language in ... section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties.”); see also 26 Cal.Jur.3d (2020) Declaratory Relief, ; 43 (“A controversy involving membership of a club may form the basis of a declaratory relief action.”).)

In his opposition, Tseshkovsky argues that the Court should not review several pieces of extrinsic evidence submitted by OCB because they implicate ecclesiastical doctrines. This argument has no merit.

The California Supreme Court has instructed trial courts to use neutral principles of law in deciding church property disputes. (Episcopal Church Cases (2009) 45 Cal.4th 467, 485.) The California Supreme Court instructs: “State courts must not decide questions of religious doctrine; those are for the church to resolve. Accordingly, if resolution of the property dispute involves a doctrinal dispute, the court must defer to the position of the highest ecclesiastical authority that has decided the doctrinal point. But to the extent the court can resolve the property dispute without reference to church doctrine, it should use what the United States Supreme Court has called the ‘neutral principles of law’ approach.  [Citation.] The court should consider sources such as the deeds to the property in dispute, the local church’s articles of incorporation, the general church’s constitution, canons, and rules, and relevant statutes, including statutes specifically concerning religious property, such as Corporations Code section 9142.” (Id. at 473.)

In deciding this summary judgment motion, the Court has considered OCB’s articles of incorporation, bylaws, and minutes. The Court has also looked to the declaration of a parishioner as to the intent of the amendment and employed relevant rules of contractual interpretation. No aspect of the Court’s ruling has involved determining questions of religious doctrine. Therefore, no aspect of this ruling has deviated from neutral principles of law.

Motion to Consolidate

The Church moves for an order relating and consolidating this matter with an unlawful detainer action (UD Action) (Case No. 20STUD02948) filed by OCB in Los Angeles Superior Court in April 2020. OCB opposes.

A. Relating Cases

“A pending civil case is related to another pending civil case … if the cases: (1) Involve the same parties and are based on the same or similar claims; (2) Arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact; (3) Involve claims against, title to, possession of, or damages to the same property; or (4) Are likely for other reasons to require substantial duplication of judicial resources if heard by different judges.” (CRC Rule 3.300(a).)

The Court concludes that the instant case and the UD Action must be related because all four grounds set forth in this rule of court are applicable.

The first basis is applicable because these actions involve the same parties — OCB and the Church — and are based on similar claims — the Church’s right to purchase the properties. Specifically, in this action, the Church seeks a court order compelling OCB to sell the three properties pursuant to an alleged option contract in the corporation’s bylaws. In the UD Action, OCB seeks a court order evicting the Church from two of the three properties — the Church Property and Russian Hall. The Church has not answered the UD Action complaint because it has not been served with summons in the UD Action. (See CRC Appendix I, Rule 1 (temporary prohibition of issuance of summons in UD Actions due to COVID-19).) However, the Church credibly represents that its defense to the UD Action will be that it has the right to purchase the two properties. (Mot. at 3; see Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385 (“[A] successful claim of title by the tenant would defeat the landlord’s right to possession.”).)

The second ground is applicable because the cases arise from the same or substantially identical transactions and incidents. Courts in both actions must determine whether the Church’s contractual right to purchase the properties is valid and enforceable.

The third ground is applicable because the actions involve “claims against, title to, possession of, or damages to the same property.” In this action, the Church seeks title to and possession of the three properties. In the UD Action, OCB seeks possession of two of the three properties.

The fourth ground is applicable because the cases will involve substantial duplication of judicial resources if heard by different judges due to the overlap of issues referenced ante.

In opposition, OCB points out that the Church has failed to file a Notice of Related Case in the UD Action. (CRC Rule 3.300(d).) To cure this procedural defect, the Court orders the Church to do so forthwith.

B. Consolidating Cases

CCP section 1048 grants discretion to trial courts to consolidate actions involving common questions of law or fact. (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978.) CCP section 1048(a) states in full: “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”

“Under the statute and the case law, there are thus two types of consolidation: a consolidation for purposes of trial only, where the two actions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one case number and result in only one verdict or set of findings and one judgment.” (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147.) In determining whether consolidation is warranted, trial courts usually consider several factors including (1) the timeliness of the motion, i.e., whether granting consolidation would delay the trial of any of the cases involved, (2) complexity, i.e., whether joining the actions involved would make the trial too confusing or complex, and (3) prejudice, i.e., whether consolidation would adversely affect the rights of any party. (Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2019) ¶ 4:432.20.)

The Church argues that the Court should consolidate the actions or stay the UD Action because the Church would be prejudiced if forced to litigate this complex issue of title under the summary procedures governing unlawful detainer actions. The Court agrees.

Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385 is instructive: “[T]he trial court has the power to consolidate an unlawful detainer proceeding with a simultaneously pending action in which title to the property is in issue. That is because a successful claim of title by the tenant would defeat the landlord's right to possession. [Citation.] When an unlawful detainer proceeding and an unlimited action concerning title to the property are simultaneously pending, the trial court in which the unlimited action is pending may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or it may consolidate the actions. [Citation.] If it does neither and instead tries the issue of title under the summary procedures that constrain unlawful detainer proceedings, the parties’ right to a full trial of the issue of title may be unfairly expedited and limited. If complex issues of title are tried in the unlawful detainer proceeding, the proceeding loses its summary character; defects in the plaintiff’s title ‘are neither properly raised in this summary proceeding for possession, nor are they concluded by the judgment.’ ”

Like in Martin-Bragg, the same parties are embroiled in two civil actions: one for unlawful detainer for possession of real property and another contesting the landlord’s right to own the property in question. In accordance with Martin-Bragg, the Court finds that a stay of the UD Action is an effective and proper solution. If the Church prevails in this action on its specific performance claim and thereafter purchases the properties, the UD Action will be moot. Conversely, if the Court determines in this action that the Church has no right to purchase the properties, then the Church will be collaterally estopped from arguing in the UD Action that it has the right to purchase the properties from OCB.

OCB’s arguments in opposition are inapt. The Court is not consolidating the cases so the Court need not examine CCP section 1048. However, the Court recognizes that these cases do involve common questions of face and law because the Church’s anticipated defense in the UD Action is nearly identical to its specific performance claim in this action. OCB also argues that the Church is not contesting OCB’s ownership of the properties. This argument is specious. There is a dispute about OCB’s ownership of the properties because the Church seeks to exercise a contractual right to purchase the properties from OCB.

Finally, the Judicial Council has ordered a moratorium on all unlawful detainer actions for both residential and commercial.

Conclusion

OCB’s motion for summary judgment is denied. OCB’s motion for summary adjudication is granted in part. OCB is entitled to a judicial declaration that the Church is not a voting member of OCB pursuant to the 1990 Bylaws and therefore cannot cast any votes in the corporation as an OCB member. OCB’s motion for summary adjudication is denied in all other respects.

The Church’s motion to relate and consolidate the instant case and the UD Action is granted in part. The UD Action and the instant case are deemed related. The UD Action shall be stayed pending the resolution of the instant case. The Church is ordered to file a Notice of Related Case forthwith.

Case Number: *******9423    Hearing Date: August 10, 2020    Dept: 32

“Protection of the Holy virgin,” the russian orthodox church, et. al., Plaintiffs, v. OUR CHURCH BUILDING, INC., Defendants.	Case No.: *******9423 Hearing Date: August 10, 2020 [TENTATIVE] order RE: (1) motion for summary judgment or, in the alternative, summary adjudication on the first supplemental complaint (2) motion to relate and consolidate cases

Background

A. Complaint

Plaintiffs “Protection of the Holy Virgin,” the Russian Orthodox Church (Church) and Father Viktor Tseshkovsky (Tseshkovsky) (collectively, Plaintiffs) commenced this action against Our Church Building, Inc. (OCB) on December 24, 2018.

Plaintiffs’ operative pleading is contained in two documents: the First Amended Complaint (FAC) filed on February 21, 2019 and a First Supplemental Complaint (FSC) filed on October 9, 2019. Both pleadings assert causes of action for (1) specific performance by the Church against OCB, (2) declaratory relief by the Church against OCB, and (3) declaratory relief by Tseshkovsky against OCB. The FSC alleges in pertinent part as follows.

The Church is a Russian Orthodox church that was first incorporated in 1954. Over time, it grew into a larger church and needed to purchase property sufficient for the Church’s practice of religion.

In 1964, OCB was formed. It was formed for the purpose of assisting and supporting the Church in obtaining, improving, maintaining, and paying for real property for the Church’s practice of religion. OCB’s original bylaws state that OCB was established “for the purpose of purchasing a more spacious building for the [Church] in Los Angeles … and the purchase of other needed property for the [Church].”

In December 1964, the Church and OCB entered into a written agreement (1964 Agreement) to finance the purchase of real property located at 2041 Argyle Avenue, Los Angeles, CA 90068 (Church Property). The agreement makes clear that the Church was to play an integral role in the governance of OCB. Under the agreement, OCB agreed to (1) act as a backup for the Church if the Church could not make mortgage payments, (2) assist the Church with unexpected repairs or other expenses, and (3) give the Church additional voting rights in OCB contingent on payments made by the Church. Pursuant to the agreement, the Church made payments on the mortgage and received voting shares.

As time went by, OCB obtained additional properties all of which would become part of the Church. These properties included 2062 Vine Street, Los Angeles, CA 90068 (Apartment) and 2031 Argyle Avenue, Los Angeles, CA 90068 (Russian Hall).

Because the Church was providing mortgage payments to OCB and covering many of the expenses, the bylaws envisioned that OCB would sell the properties to the Church for the amount of money that OCB contributed to the purchase of these properties, not at their fair market value. Pursuant to the bylaws, the Church can purchase the Church Property for 37% of its fair market value, the Apartment at 82% of its fair market value, and Russian Hall at 43% of the cost for the purchase of the land and construction of the hall.

In November 2018, the Church informed OCB that it intended to exercise its right to purchase the properties pursuant to the bylaws. OCB refused.

In September 2019, OCB purports to have amended its bylaws in order to (1) remove the Church’s right to purchase the properties, (2) take Church members off the OCB Board of Directors (OCB Board), and (3) remove the Church as a member of OCB. These amendments are invalid because they were not adopted pursuant to the then-operative OCB bylaws.

In its first cause of action for specific performance, the Church seeks an order compelling OCB to specifically perform under its operative bylaws and sell the properties to the Church.

In its second cause of action for declaratory relief, the Church seeks (1) a declaration that the Church is a member of OCB with all membership rights, (2) a determination of how many membership votes the Church can cast, (3) a declaration that the Church’s priests are voting members of the OCB Board, (4) a determination of the voting rights of the Church members on the OCB Board, and (5) a declaration that the bylaws adopted by OCB in September 2019 were invalid.

In his third cause of action, Tseshkovsky seeks a declaration that he and all Church priests are members of the OCB Board with rights held by all directors of OCB and the ability to cast two votes on any matter that comes before the OCB Board for a vote.

B. Cross-Complaint

On March 28, 2019, OCB filed a Cross-Complaint against Tseshkovsky for (1) breach of fiduciary duty and (2) defamation.

MSJ / MSA[1]

Defendant OCB moves for summary judgment of the FSC or, in the alternative, summary adjudication of each of the FSC’s causes of action.

A. Specific Performance

“To obtain specific performance after a breach of contract, a plaintiff must generally show: ‘(1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract. [Citations.]’ ” (Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472.)

In the Church’s first cause of action, the Church alleges that the 1964 Agreement and OCB’s operative bylaws constitute a binding contract between OCB and the Church. (FSC ¶ 34.) The Church alleges that this contract provided the Church with the right to purchase the Church Property, the Apartment, and Russian Hall. (Ibid.) The Church alleges that OCB breached this contract by refusing to sell the properties. (Ibid.) The Church seeks an order compelling OCB to specifically perform its obligations under the contract by selling the properties to the Church. (FSC, Prayer for Relief, ¶ 1.)

1. 1964 Agreement

OCB argues that the 1964 Agreement does not furnish a viable basis for the specific performance sought because the agreement (1) is not a land sale contract and (2) does not identify the properties or the purchase price. The Court agrees with both points. The Church appears to concede this as well. (Opp. at 17 (“Once the binding 1964 voter acquisition agreement was completed, the bylaws became the only binding contract and those fully protected the Church’s rights.”).)

First, the 1964 Agreement, by its express terms, does not contemplate the sale of property to the Church. The 1964 Agreement sets forth a financial arrangement between the Church and OCB with respect to the mortgage on the Church Property. (FSC Ex. 1.) The 1964 Agreement provides the Church with membership voting power in OCB in exchange for mortgage payments: “The Holy Protection Church, by making monthly payments to [OCB] for the payment of the first mortgage, obtains in [OCB] that amount of votes, which equals to the amount of monies paid toward the first mortgage.” (FSC Ex. 1, ¶ 10.) A promise to provide voting power is, of course, not a promise to sell property. Thus, compelling OCB’s specific performance of this agreement does not provide the Church with the relief sought.

Second, “[t]he material factors to be ascertained to support a contract for the sale of real property are: (1) the seller; (2) the buyer; (3) the price; (4) time and manner of payment; and (5) description of the property sufficient to identify it.” (Blackburn v. Charnley (2004) 117 Cal.App.4th 758, 766.) The 1964 Agreement does not identify two of the parcels of real property — the Apartment or Russian Hall — which the Church seeks to purchase by specific performance. Indeed, the 1964 Agreement was entered into before OCB purchased the Apartment or Russian Hall. (DSS 17.) The 1964 Agreement also does not identify the price or time and manner of payment by which this purchase would occur. Therefore, the contractual terms of the 1964 Agreement are not sufficiently definite to enable the Court to order specific performance.

Third, the Court would point out the termination date set forth in the 1964 Agreement: “This Agreement shall go into effect upon proper signing by all representatives of both parties and shall remain in force until full payment of the first mortgage on the purchased property is completed.” (FSC Ex. 1.) It is undisputed that the mortgage on the purchased property — the Church Property — was paid off. (DSS 2.) Therefore, by the agreement’s express terms, it is no longer “in force.” The Court cannot order specific performance of a contract no longer in force.

2. 1990 Bylaws

The FSC is unclear as to what version of the bylaws the Church relies upon but does make clear that the Church views the 2019 OCB Bylaws as invalid. (FSC ¶¶ 26-28.) In opposition, the Church clarifies that it is relying upon the bylaws as amended in 1990 (1990 Bylaws). (DSS 26 (Church not disputing that amendments to OCB’s bylaws were passed in 1990); Opp. at 4 (“[I]t is undisputed that the 1990 bylaws were in effect at the time of it[s] purported amendments.”).)

“The by-laws of a corporation constitute a contract between the shareholders and the corporation.” (Casady v. Modern Metal Spinning & Mfg. Co. Because bylaws constitute a contract between the shareholders and the corporation, specific performance can be enforced against a corporation because of its breach of corporate bylaws. (See Riverside Land Co. v. Jarvis (1917) 174 Cal. 316, 327 (ordering specific performance against corporation based on corporate articles, bylaws, and stock certificates of corporation).)

OCB contends that the 1990 Bylaws do not furnish a tenable basis for specific performance because (1) the conditions of purchase set forth by the 1990 Bylaws have not been satisfied, (2) the 1990 Bylaws, like the 1964 Agreement, is devoid of sufficient information to allow for specific performance, (3) the 1990 Bylaws are not supported by consideration and thus do constitute a valid contract, (4) the 2019 bylaw amendments took away the Church’s right to purchase the properties, and (5) the Church lacks standing to challenge the 2019 bylaw amendments.

a. Conditions of Purchase in 1990 Bylaws

OCB contends that the 1990 Bylaws, when read as a whole, show that OCB provided the Church with only an opportunity to make an offer to purchase the properties. OCB argues that the Church’s right to purchase the properties was contingent on, among other things, obtaining 90% of the votes of the OCB members. OCB submits undisputed evidence that OCB never held a vote on whether to sell the property. (DSS 13.)

“ ‘It is generally accepted that corporate bylaws are to be construed according to the general rules governing the construction of statutes and contracts.’ [Citation.] Bylaws must “be given a reasonable construction and, when reasonably susceptible thereof, they should be given a construction which will sustain their validity....” ’ ” (Singh v. Singh (2004) 114 Cal.App.4th 1264, 1294.)

Section 3 of the 1990 Bylaws is entitled “Administration of Corporation matters.” Paragraph 3.04 states: “Questions regarding mortgaging and selling of property, owned by [OCB], are resolved by a majority of 90% of votes, represented at a General Meeting.” Paragraph 3.05 states: “Questions in connection with any changes of these By-Laws, closing out of [OCB], or questions regarding the relationship with the Church, will be resolved at General Meetings and with majority of 90% of the votes. Discussions of these questions shall be allowed only by decision of the Board of Directors.” (Taylor Decl. Ex. H.)

Section 6 of the 1990 Bylaws is entitled “Conditions for becoming the full owner of the Corporation Properties on the part of the Parish.” Paragraph 6.02 states in pertinent part:

The Parish [i.e., the Church] may buy all the properties from [OCB], having met all following conditions:

a. All three properties belonging to [OCB] must be purchased simultaneously. In no case can the Parish become the legal owner of only a part of the property, since [OCB] considers the properties indivisible.

b. Prior to the purchase of this property, all loans made by the banks through first mortgages, must be paid off.

c. Prior to the purchase of this property, all donations and loans made by the members of [OCB] must be reimbursed: 80% of sums received for the Church property purchase, and 100% of those received for the apartment house acquisition.

d. The value of the entire property at the time of purchase must be evaluated either by a Bank or other official agencies, and the Protection of the Holy Virgin Church must deliver to [OCB] that sum which equals the percentage of participation of the members of [OCB] at the time the properties were acquired, i.e. 37% at purchase of the Church; 82% at purchase of the apartment house, and 43% at purchase of the lot and construction of the ‘Russian Hill.’ ” (Taylor Decl. Ex. H (underlining in original).)

The Court concludes that the language of the 1990 Bylaws does not support OCB’s argument. As evidenced by its title and contents, section 6 is intended to set forth the specific procedure by which the Church can purchase the properties from OCB. Paragraph 6.02 states that the Church may buy the properties from OCB upon meeting the conditions set forth therein. Paragraph 6.02 does not contain the voting requirement posited by OCB. Therefore, the 1990 Bylaws indicate that this voting requirement does not apply to the Church’s right to purchase the properties.

Section 3 does not alter this conclusion. Paragraph 3.04 deals with questions about selling and mortgaging of the property generally. This paragraph is not controlling because the Church is not asking a “question” about selling the properties. The Church is demanding the sale of the properties and such a demand is plainly conveyed and described by paragraph 6.02. If paragraph 3.04 were intended to impose the voting requirement posited by OCB, the Court concludes that the drafters would have articulated this requirement more precisely, e.g., “the Church Property, Apartment, and Russian Hall cannot be sold without 90% of the OCB members’ votes.”[2] Paragraph 3.05 is not controlling because the section governs “questions” and does not mention the properties or a sale of the properties.

In reply, OCB directs the Court’s attention to paragraph 7.02. Section 7 is entitled “Relationship between the Corporation and the Church Administration.” Section 7.02 states: “In case of any conflict with the Church Administration (such as took place in 1962-63 in Los Angeles), the Corporation has the right to dispose of the property, as the legal and rightful owner of that property, even to the point of selling it. However, such a decision must be approved by 90% of the votes present.” (Taylor Decl. Ex. H.) OCB claims that paragraph 7.02 applies because a similar conflict has arisen between the Church and OCB. OCB claims that paragraphs 3.04 and 7.02 are a clear and express manifestation of an intent not to be bound by a purported contract to sell the properties. This argument was waived because it was not clearly raised in OCB’s moving papers. (See Mot. at 8 (citing paragraph 7.02 as a reason why the Church’s right to purchase the properties “was tempered”).) In any event, consideration of this additional argument is not helpful. OCB has not shown that this is a conflict similar to the one that the parishioners faced in 1962-63. That is, OCB has not shown that there is a conflict with the “Church Administration” caused by a “very controlling” person who, among other things, does not hold Church meetings, account for donated money, and incites violence among the parishioners. (See Makarenko Decl. ¶¶ 6-8.)

b. Sufficient Information to Grant Specific Performance

OCB argues that the 1990 Bylaws provide insufficient information as to the addresses of the properties to be sold and the price of the putative sale. As noted ante, “[t]he material factors to be ascertained to support a contract for the sale of real property are: (1) the seller; (2) the buyer; (3) the price; (4) time and manner of payment; and (5) description of the property sufficient to identify it.” (Blackburn v. Charnley (2004) 117 Cal.App.4th 758, 766.)

OCB’s argument about the property addresses is easily rejected. The 1990 Bylaws sufficiently identify the three properties at issue: (1) “the Church at 2041 Argyle Ave.,” (2) “the apartment house at 2062 N. Vine Street,” and (3) “ ‘Russian Hall’ at 2033 Argyle Ave.” (Taylor Decl. Ex. H, ; 6.01.) While the Church lists the Russian Hall address as 2031 Argyle Avenue in the FSC (¶ 8), this is attributable to the fact that Russian Hall has numerous postal addresses, including 2031 Argyle Avenue. (Sorokin Decl. ¶ 16.) OCB has not demonstrated a legitimate problem with identifying the three properties owned by OCB which the Church seeks to purchase.

OCB’s second point is that paragraph 6.02(d) is not a purchase price but one of several prerequisites that the Church must satisfy “before it is eligible to seek to purchase the properties.” (Mot. at 21.) This paragraph states: “The value of the entire property at the time of purchase must be evaluated either by a Bank or other official agencies, and the Protection of the Holy Virgin Church must deliver to the Corporation that sum which equals the percentage of participation of the members of the Corporation at the time the properties were acquired, i.e. 37% at purchase of the Church; 82% at purchase of the apartment house, and 43% at purchase of the lot and construction of the ‘Russian Hill.’ ”

“Whether a contract is certain enough to be enforced is a question of law for the court.”

(Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 734.) “The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.” (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 209.) “If, by contrast, a supposed ‘contract’ does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811.)

“The modern trend of the law is to favor the enforcement of contracts, to lean against their unenforceability because of uncertainty, and to carry out the intentions of the parties if this can feasibly be done. Neither law nor equity requires that every term and condition of an agreement be set forth in the contract. Option agreements have generally been held or recognized to be sufficiently definite as to price to justify their enforcement if either a specific price is provided in the agreement or a practicable mode is provided for the court to determine price without any new expression by the parties themselves.” (Goodwest Rubber Corp. v. Munoz (1985) 170 Cal.App.3d 919, 921; see also Forde v. Vernbro Corp. (1963) 218 Cal.App.2d 405, 408 (“If the parties provide a practicable, objective method for determining this price or compensation, not leaving it to the future will of the parties themselves, there is no such indefiniteness or uncertainty as will prevent the agreement from being an enforceable contract.”).)

The Court finds the Church’s interpretation of this paragraph more compelling: “Section 6.02(d) reflects the parties’ intent to allow the Church to purchase the properties at a discount, reflecting the amount of money the Church had provided to purchase the properties. Whereas the terms ‘fair market value’ or ‘purchase price’ were not used, … the term ‘the value of the entire property at the time of the purchase must be evaluated either by a Bank or other official agencies …’ means fair market value, appraised value, or its equivalent.” (Opp. at 18-19.) Read in context, paragraph 6.02(d) is the price term which one would logically expect to find in provisions providing another with the right to purchase real property. Moreover, characterizing this contractual term as something else, like a condition requiring repayment of loans, does not alter the purpose of paragraph 6.02 generally. According to that paragraph, the Church may purchase the properties upon satisfaction of the conditions set forth in that paragraph. The Church’s repayment of loans, donations, and contributions made by OCB members is the payment which OCB agreed to accept in exchange for the properties.

c. Consideration to Support Bylaws as Contract

OCB contends that there is no consideration supporting the Church’s purported contractual right under the 1990 Bylaws. OCB contends that the Church’s payments to OCB were a preexisting duty fulfilled in exchange for votes within OCB pursuant to the 1964 Agreement. This argument is without merit. The obligations of the Church under the 1964 Agreement ended with full payment of the first mortgages. (See FSC Ex. 1, ¶ 14.) Payment of the mortgages is one of the express conditions for purchase of the properties. (Taylor Decl. Ex. H, ; 6.02(b).) To purchase the properties in question, the Church is additionally obligated to recompense OCB members for donations and loans made to the Church and make payments at the aforementioned discounted prices. These are not preexisting obligations and constitute adequate consideration under the circumstances. (See Henderson v. Fisher (1965) 236 Cal.App.2d 468, 474 (“[T]he proper test to apply in determining adequacy of consideration in a contract involving the transfer of property is not whether the promisor received the highest price obtainable for his property, but whether the price he received is fair and reasonable under the circumstances. [Citations.] Moreover, in addition to the value of the property to be conveyed, the court may consider such factors as the relationship of the parties, their friendship, love, affection, and regard for each other, and the object to be obtained by the contract.”).)

d. Removal of Right to Purchase by 2019 Bylaws

OCB contends that the Church’s right to purchase the properties was revoked by the 2019 OCB bylaws (2019 Bylaws). (DSS 9-10.) The 2019 Bylaws state that “[a]ll prior bylaws of [OCB] that may exist are hereby revoked, void, and of no effect, and the following bylaws … shall be and hereby are the only bylaws governing [OCB].” (Taylor Decl. Ex. L.) As relevant to this dispute, the 2019 Bylaws purportedly removed the Church’s right to purchase the properties. (See id. ; 5.)

The Church claims that the 2019 Bylaws are invalid because the bylaws were not adopted in accordance with the 1990 Bylaws.

The 1990 Bylaws state in relevant part: “Questions in connection with any changes of these By-Laws … will be resolved at General Meetings and with majority of 90% of the votes. Discussion of these questions shall be allowed only by decision of the Board of Directors.” (Taylor Decl. Ex. H, ; 3.05; see also Mot. at 17 (citing this section as OCB’s authority to amend bylaws).) Accordingly, under the 1990 Bylaws, amending the bylaws requires (1) an OCB Board decision to place the bylaw amendment before the OCB members at a General Meeting and (2) a vote in support of the bylaw amendment by 90% of the OCB members.

i. 1990 Bylaws’ Impact on Church as an OCB Member

According to the 1990 Bylaws, membership in OCB can “be conferred only” upon (1) “the Clergy of the Parish” and (2) “those members of the Parish in good standing … who have donated no less than $250.00 to [OCB].” (Taylor Decl. Ex. H, ; 2.01.) The number of votes to which each member is entitled is contingent on the size of the member’s donations to OCB or the size of the member’s “contribution through labor” to OCB. (Id. ;; 2.02, 2.14-15.) As to the Church specifically, the 1990 Bylaws state that the Church “becomes a [OCB] member” “[i]n donating any sum to [OCB].” (Id. ; 2.06.) “All funds donated by the [Church], as well as all voting rights results therefrom, are subject to mutual agreement in writing between the [Church] and the Board of Directors of [OCB], in accordance with all other paragraphs of these By-Laws.” (Ibid.)

According to the 1990 Bylaws, members of the OCB Board shall include (1) “the Parish Rector and all accredited Priests of [the Church], with a right to two (2) votes each,” (2) “[t]he President of [OCB] and other staff members of the Administrative Board of the Board of Directors,” and (3) OCB members donating more than a certain sum of money. (Taylor Decl. Ex. H, ;; 2.02(f), 4.01, 4.02.) The “other staff members” of the Administrative Board include two vice-presidents, a secretary, and treasurer. (Id. ;; 3.01, 3.02.)

The pre-1990 OCB bylaws also stated that OCB’s “Board of Directors shall include four representatives of the Parish Council of the [Church], as appointed by the Parish Council from among those lawfully selected members of the Parish Council…. Such representatives of the Parish Council have rights in [OCB] and in the Board of Directors in accordance with the amounts contributed by the [Church] to [OCB] (in accordance with Section 2 hereof), and they shall exercise them in accordance with their conscience.” (Fennell Decl. Ex. 2, ; 4.05.) The pre-1990 OCB bylaws contained a similar provision giving “the Sisterhood of the Parish” three representatives on the OCB Board. (Id. ; 4.05.1.)

As discussed more post, paragraphs 4.05 and 4.05.1 of the pre-1990 Bylaws may no longer be present in the 1990 Bylaws. Instead, a sheet is superimposed upon these two paragraphs stating: “From the Minutes of the Meeting of [OCB], dated 28 January 1990. Additions to Paragraphs 4.05 & 4.05.1: Listened to President’s announcement that it is imperative to make a resolution regarding participation of Church Council members during the voting of important matters. It is suggested that members of Church Council and Sisterhood cannot vote despite possessing votes of the Parish or Sisterhood. For accepting this decision – 191 ½ Against – 2 ½.” (Taylor Decl. Ex. H, p. 109.)

The minutes of the OCB Meeting held in January 1990 provide in pertinent part: “They heard the chairman’s statement that it was necessary to adopt a resolution on the participation of church council members when voting on important issues. It is proposed to vote in favor of members of the Church Council and the Sisterhood not being able to vote if they possess the votes of the parish or the sisterhood [sic.]. 191 ½ voted to adopt this decision, and 2 ½ voted against.” (Fennell Decl. Ex. 5 (underlining in original).) Abutting this text, the minutes state: “Added to ; 4.05 and ; 4.05.1.” (Ibid.)

This 1990 bylaw amendment was the subject of subsequent general meetings.

The minutes of a general meeting held on December 8, 1991 state: “The third point of our Agenda is a short explanation regarding counting of shares, according to an amendment to Par. 2.02 of the Corporate By-Laws, made two General meetings ago. At that meeting it was decided that questions of finances and electing officers of the Corporation, the shares of the Sisterhood and shares of the Parish are not counted. This is now part of the By-Laws. Only personal shares of members will be used in this next election.” (Taylor Decl. Ex. I.)

The minutes of a general meeting held on July 26, 1998 state that a member of the bylaws committee “was concerned about the legality of the changes that were made to [paragraphs 4.05 and 4.05.1] in 1990 and that they should be returned to their original text.” (Taylor Decl. Ex. K.) The committee voted 3-1 to bring up the revisions for discussion at the general meeting. (Ibid.) At the general meeting, Evelyn Sirch, OCB’s President and a Church Council member (OAEOE 76), presented “the rationale for revising the 1990 amendment to paragraphs 4.05 and 4.05.1.”

“In January 1990, I.A. Awtamonow proposed the changes to paragraphs 4.05 and 4.05.1, i.e., members of the Church Council and the Sisterhood do not have the right to vote using [OCB] votes of the Parish or the Sisterhood. The revision was approved by the [OCB] meeting with 191 ½ votes in favor of this change … and 2 ½ against. This was done to protect [OCB] and the [Church] during those years where there were very unpleasant and unclear and strained relationships with the late Archbishop Anthony (Sinkevich). The concern then was that our parish may be infiltrated by supports of Archbishop Anthony and via the Church Council and Sisterhood. Because the number of [OCB] votes held by the Parish Council and by the Sisterhood exceeds all votes one can imagine what could have happened with the [OCB] and subsequently with the Protection Church. It is believed that this danger has now passed and it is moved that the meeting vote to rescind the decision (resolution) made by the Corporation meeting in January 1990 and to return the voting privileges to the Parish Council and Sisterhood.” (Taylor Decl. Ex. K.)

In response, Vera Gor (Gor), another member of the Church Council (OAOE 76), provided a rationale for why the amendment should remain:

“Each Corporation protects and insures itself from unfriendly takeovers. And for this reason the By-Laws were amended. The January 1990 Biennial meeting of the Board of Directors almost unanimously approved the changes to paragraphs 4.05 and 4.05.1.

The By-laws were amended because the Parish now has more votes that the total sum of all the members of [OCB] (250 vs. 210). The Parish votes alone can overturn the unanimous votes of [OCB] members, thereby [OCB] members have no say.

Then there was one threat. Today that threat does not exist — but that does not mean that tomorrow another threat will not appear.

It is the responsibility of [OCB] to protect itself. If this meeting does not agree with the method currently specified in the By-Laws, e.g., restricting the votes of the Parish and the Sisterhood, then let’s find and approve another method of protection. This must be done slowly, judiciously, deliberately, having thought through all points. But to willfully place [OCB] under attack is nor right, not smart.” (Taylor Decl. Ex. K.)

Andrey Sergeyevsky, another Church Council member (OAOE 76), expressed concerns about the amendments. “[T]here will only [be] a handful of [OCB] members to decide extremely important issues. It is extremely important that the Parish somehow is transitioned.” (Taylor Decl. Ex. K.)

Pavel Golubovs, another Church Council member (OAOE 76), “expressed the benefits of [OCB] to protect [the Church] from hostile takeover…. The bylaws as they stand now work as a safeguard. It is like an insurance policy to prevent things from going wrong.” (Taylor Decl. Ex. K.)

Bishop Alexander Mileant (Mileant), yet another Church Council member (OAOE 76), stated that OCB did not “need[] to be protected from the parish.” Mileant opposed the bylaws: “let’s say that Mr. Grishanovich is the President of [OCB], everybody likes him and we all trust him. What if 10 years he became insane, and he decides that he wants to go to the Moscow Patriarchite, or that he wants to have his own church and become its Bishop. All this property is his and who will stop him?” Gor responded: “If [OCB] is destroyed and everything belongs to the Parish, and we do not have the right to say anything, and one individual starts leading the Parish in the wrong decision — what then? The Parish will prescribe in what direction we will go? We may not wish to go in that direction.” Mileant replied that “there is no danger, because the Parish is comprised of the members of [OCB].” (Taylor Decl. Ex. K.)

The 1998 general meeting ended without changes to the bylaws. (Taylor Decl. Ex. K.)

As the Church notes, the Court must determine what effects the 1990 bylaw amendments had on its right to vote as an OCB member. (Opp. at 5.) Because the bylaws constitute a contract between the OCB members and OCB, the rules of interpretation cited ante apply. Moreover, the summary judgment rules on contract interpretation apply. “Interpretation of a written instrument becomes solely a judicial function only when it is based on the words of the instrument alone, when there is no conflict in the extrinsic evidence, or when a determination was made based on incompetent evidence.”  (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395.) “This is true even when conflicting inferences may be drawn from the undisputed extrinsic evidence [citations] or that extrinsic evidence renders the contract terms susceptible to more than one reasonable interpretation. [Citations.] If, however, there is a conflict in the extrinsic evidence, the factual conflict is to be resolved by the jury.” (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1126-27.)

The Court concludes that the language of the amendment is ambiguous but the extrinsic evidence is not in conflict. The extrinsic evidence shows that the 1990 Bylaws divested the Church of the power to vote as OCB members.

The Court starts with the language of the amendment. “Additions to Paragraphs 4.05 & 4.05.1: Listened to President’s announcement that it is imperative to make a resolution regarding participation of Church Council members during the voting of important matters. It is suggested that members of Church Council and Sisterhood cannot vote despite possessing votes of the Parish or Sisterhood. For accepting this decision – 191 ½ Against – 2 ½.” (Taylor Decl. Ex. H, p. 109.) This amendment, on its face, is amenable to OCB’s interpretation that OCB took away the Church’s right to vote as an OCB member because the amendment expressly states that the Church “cannot vote despite possessing votes of the Parish.” On the other hand, the amendment does not clarify which power to vote is being stripped away from the Church, and the amendment purports to make “additions” to paragraphs 4.05 and 4.05.1 by divesting the Church of its power to vote. Paragraphs 4.05 and 4.05.1 provided the Church and Sisterhood with the power to appoint additional representatives to the OCB Board. These paragraphs were not the basis of the Church’s power to vote as an OCB member (;; 2.02, 2.06) or the Church’s power to have some representation on the OCB Board of Directors (; 4.01). The amendment’s placement indicates that OCB might have implemented the amendment to curtail the Church’s power to make these additional appointments on the OCB Board.

Because of this ambiguity, the Court must look to extrinsic evidence. Subsequent minutes of OCB general meetings make clear that the amendment was intended to strip the Church of voting powers as members. The minutes of the December 1991 general meeting reflect that the amendment was to Paragraph 2.02 of the OCB bylaws (the provision setting forth voting powers of OCB members) and states that “the shares of the Sisterhood and shares of the Parish are not counted” as to “questions of finances and electing officers of the Corporation.” (Taylor Decl. Ex. I.) The minutes of the December 1998 general meeting show that numerous Church Council members openly accepted that the 1990 bylaw amendment had stripped the Church of its right to vote as an OCB member. (See, e.g., Taylor Decl. Ex. K (“The By-laws were amended because the Parish now has more votes that the total sum of all the members of [OCB] (250 vs. 210). The Parish votes alone can overturn the unanimous votes of [OCB] members, thereby [OCB] members have no say.”).) For this reason, several Church Council members sought to change the bylaws and expressed concerns that the bylaws enabled OCB to act without accountability to the Church. Other Church Council members saw value to the amendment’s safeguards against Church encroachment and advocated in favor of keeping it.

A declaration from Ludmyla P. Makarenko (Makarenko) is also probative. Makarenko has been a parishioner and member of the Church for over 50 years. (Makarenko Decl. ¶ 2.) Makarenko states that OCB was formed in order to protect members from a “very controlling” bishop presiding over another church who had caused a rift among the parishioners. (Makarenko Decl. ¶¶ 6-9.) This rift prompted many parishioners, including Makarenko, to attend the Church in order to avoid the bishop’s control. (Makarenko Decl. ¶¶ 9-13.) According to Makarenko, the parishioners founded OCB so that the corporation could purchase and maintain the Church properties and ensure that the parishioners would not once again be chased away from their place of worship or become subject to a hostile takeover. (Makarenko Decl. ¶¶ 13-14.) Makarenko states that the Church stopped participating in OCB in the 1980s but still held a large number of membership votes in OCB by virtue of payments made on the mortgage for the Church Building. (Makarenko Decl. ¶ 16.) Makarenko recalls having conversations with various Church and OCB members where they discussed removing the Church as an OCB member. (Makarenko Decl. ¶ 17.) “This would serve two functions. First, it made practical sense to remove the Church’s votes because the Church was not participating in OCB governance. Second, it would ensure that OCB would remain protected from a hostile takeover.” (Makarenko Decl. ¶ 18.) Makarenko states that the decision to amend the bylaws was made among the members of OCB, the Church, and the Sisterhood which, although three separate corporations, were comprised of many of the same individuals. (Ibid.) Makarenko states that she received the minutes from the January 1990 OCB general meeting and understood that the OCB bylaws had been amended to remove the Church’s right to vote. (Makarenko Decl. ¶ 19.)

All of this extrinsic evidence points in one direction: the 1990 amendments to the bylaws divested the Church of its power to vote as an OCB member. The Church Council’s remarks at the 1998 meeting serve as a clear concession of this fact.

In opposition, the Church provides a single piece of extrinsic evidence to rebut this showing: a document from 1996 which purportedly shows that the Church had 271 OCB votes. (Sorokin Decl. Ex. 1, OAOE 73.) The document suffers from several evidentiary issues.

First, the source of this document is not consistently articulated. Alexey Sorokin (Sorokin) is the Church treasurer and, in this capacity, has access to all the Church’s financial records and its resolutions. (Sorokin Decl. ¶ 5.) Sorokin states that documents attached to his declaration bearing the bates stamp “CHURCH” are documents referring to Church ledgers or documents the Church has. (Sorokin Decl. ¶ 7.) The document in question is bates stamped “CHURCH” so presumably it is a Church document. (OAOE 73.) Confusingly, however, Sorokin has prepared a chart to preface the document. (OAOE 60.) In a footnote appended to the chart, Sorokin states that the document is from OCB’s boxes. (Ibid.)

Second, as OCB notes, CRC Rules state that “[e]xhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter.” (CRC Rule 3.1110(g).) The document is not certified under oath by a qualified interpreter. Instead, Sorokin states in a footnote in the aforementioned chart that he translated the document. (OAOE 60, 72-73.)

Third, Sorokin states that this chart reflects OCB’s recognition that the Church is a member of OCB with 271 votes. (OAOE 60.) The Court finds this to be a bridge too far. The contents and function of the document are too unclear because the document is presented with no context and the Church has engaged in no efforts to clarify. For example, the document places a “D” and a “checkmark” next to several of the purported OCB members but not next to the Church or Sisterhood. This could be significant. This could mean that the Church and Sisterhood were no longer viewed as OCB members.

Given these evidentiary defects, the Court finds the document inadmissible and incapable of establishing a triable issue of material fact here.

The Church also points to the 1991 minutes and states that the amendment in question was narrower in scope than posited by OCB. The Church contends that the amendment only divested the Church of power to vote on “questions of finances and electing officers of the Corporation.” (Taylor Decl. Ex. I.) In view of the actual language of the amendment, the Court finds this interpretation untenable. The amendment states in pertinent part: “[M]embers of Church Council and Sisterhood cannot vote despite possessing votes of the Parish or Sisterhood.” The amendment does not limit the Church’s power to vote on “questions of finances and electing officers of the Corporation.” The 1991 minutes are probative in the sense that the minutes show that the Church was divested of voting power as an OCB member.

The Church contends that it is still an OCB member even if the 1990 Bylaws took away its membership rights because of Corporations Code section 9330. That statute provides: “A corporation may issue memberships having different rights, privileges, preferences, restrictions, or conditions, as authorized by its articles or bylaws.” This argument is plainly groundless. Corporations Code section 9330 does not create membership rights. The statute just vests nonprofit religious corporation with the right to create different classes of members.

Finally, the Church contends that OCB breached paragraphs 2.06 and 2.09 of the then-operative OCB Bylaws by adopting this amendment. Paragraph 2.06 states: “All contributions made by the [Church] to [OCB], as well as the relevant voting rights, are subject to the agreements between the [Church] and the Board of Directors of [OCB].” (Fennell Decl. Ex. 2 (1983 Bylaws).)[3] Paragraph 2.09 states that “Expulsion from the Corporation is possible only in extreme cases, subject to valid reasons, by the decision of the General Meeting of [OCB] made by a majority of 90% of votes….” (Fennell Decl. Ex. 2 (1983 Bylaws).) This argument is barred by the four-year statute of limitations applicable to written instruments. (CCP ; 337(a) (providing four-year statute of limitations for “[a]n action upon any contract, obligation or liability founded upon an instrument in writing”).) This limitations period expired over two decades ago. Moreover, OCB did not breach paragraph 2.09 by adopting the amendment. OCB has articulated its reasons for removing the Church. These reasons include the fear of a hostile takeover.

In sum, the Court concludes that the bylaw amendments adopted in 1990 took away the Church’s power to vote as an OCB member. The Church has failed to present any extrinsic evidence, including evidence about the parties’ course of conduct, which is inconsistent with this interpretation.

ii. 1990 Bylaws’ Impact on Church as an OCB Director

As the Church repeatedly emphasizes, the Church’s right as a member in OCB and as a director in OCB are separate matters. The OCB bylaws contemplates these groups as separate and, as relevant here, mandate that the OCB Board reach a decision as to whether the bylaws should be amended before the amendment is presented to the OCB members. (Taylor Decl. Ex. H, ; 3.05.) OCB even appears to concede this point because OCB notes that discussions about bylaw changes “will be allowed ‘only by decision of the Board of Directors.’ ” (Mot. at 20 (citing ; 3.05).) The Court must therefore determine what effect the 1990 amendments had on the Church’s right to have members on the OCB Board.

As noted ante, the “sheet” with the language of the amendment is superimposed upon paragraphs 4.05 and 4.05.1. Those paragraphs give the Church and Sisterhood the right to appoint additional members to the OCB Board of Directors. This placement suggests that the amendment is removing this right. However, the amendment purports to be an “addition” to these paragraphs, not a replacement, so the amendment’s language sows ambiguity. Moreover, paragraphs 4.05 and 4.05.1 apparently remained in the 1990 bylaws. (Taylor Errata Decl. Ex. H.) According to OCB’s former counsel, “there are two page 12s [i.e., the page containing paragraphs 4.05 and 4.05.1] in the bylaws as the post-in note is how OCB memorialized the amendments to Section 4.05 and 4.05.1.” (Cameron Obj. Decl. ¶ 16.) That paragraphs 4.05 and 4.05.1 remained in the bylaws, in conjunction with the fact that the amendment purports to be an “addition” to those paragraphs, indicates that these paragraphs remain in full force and effect in the 1990 Bylaws.

Furthermore, as the Church repeatedly notes, the 1990 amendment does not appear to have any impact upon paragraph 4.01 which states that the members of the OCB Board include “the Parish Rector and all accredited Priests of [the Church], with a right to two (2) votes each.” This paragraph alone indicates that the Church still retained some powers on the OCB Board. (Mot. at 23 (“OCB concedes that its previous bylaws provided the parish rector and all priests were members of the board of directors of OCB….”).)

In its moving and reply papers, OCB does not address this issue at all. OCB instead argues that Tsheshkovsky and the Church have no rights as directors because the 2019 Bylaws removed said rights. (Mot. at 22-23.) However, this argument places the cart before the horse. In order to implement the 2019 Bylaws which stripped Tseshkovsky and the Church of these directors rights, OCB had to adopt the 2019 Bylaws in accordance with the corporation’s then-operative bylaws and other relevant laws.

The Church has established a triable issue of material fact as to whether OCB adopted the 2019 Bylaws in accordance with the law because, assuming there was a Board meeting to place the 2019 Bylaws before the OCB members, Tsheshkovsky did not receive notice.

“[A] special meeting of the board of directors held without the requisite notice is void, and directors present thereat cannot perform any valid corporate act.” (Wood Estate Co. v. Chanslor (1930) 209 Cal. 241, 247 (collecting cases supporting this principle); see also Corp. Code ; 307(a)(2) (“Special meetings of the board shall be held upon four days’ notice by mail or 48 hours’ notice delivered personally or by telephone …. The articles or bylaws may not dispense with notice of a special meeting.”).)

In this case, the evidence shows that OCB circulated a notice of a special meeting of the OCB members in September 2019. (Kettaneh Decl. Ex. A.) The notice states that the OCB Board “has called a Special Meeting of the Members of the Corporation … to consider and vote on amending, repealing, and/or replacing the Bylaws of [OCB]. Specifically, the Board of Directors has approved repealing the existing Bylaws and adopting the proposed new Bylaws attached to this Notice.” (Ibid.)

Tsheshkovsky, the Church Rector, declares that he was not present at the alleged OCB Board meeting where the bylaw amendments were discussed and avers that he has never received a notice of an OCB Board meeting at any point during his tenure with the Church. (Tsheshkovsky Decl. ¶ 11.)

Because the Church has established a triable issue of material fact as to whether Tseshkovsky is an OCB director and whether Tseshkovsky received notice of the OCB Board meeting, OCB is not entitled to summary adjudication of the Church’s specific performance claim. This is so because the notice defect may have voided the OCB Board’s decision to place the bylaw amendments before the OCB members and, in turn, voided the OCB members’ decision to approve the bylaw amendments. If the 2019 Bylaws are void, then the Church has the right to purchase the properties pursuant to the 1990 Bylaws.

e. Standing to Assert a Challenge to the 2019 Bylaws

OCB contends that the Church lacks standing to challenge the 2019 Bylaws because the Church is no longer a member of OCB. OCB relies upon Corporations Code section 9141: “Subject to Section 1942: (a) No limitation upon the activities, purposes, or powers of the corporation or upon the powers of the members, officers, or directors, or the manner of exercise of such powers, contained in or implied by the articles … shall be asserted as between the corporation or member, officer or director and any third person, except in a proceeding: (1) by the authorized number of members (Section 5036), by any person authorized by the articles or bylaws to bring an action, or by the state to enjoin the doing or continuation of unauthorized activities by the corporation or its officers, or both, in cases where third parties have not acquired rights thereby, or (2) by the authorized number of members (Section 5036), by any person authorized by the articles or bylaws to bring an action, by any member suing in a representative suit, or by the corporation, against the officers or directors of the corporation for violation of their authority.”

The Court concludes that OCB reads this statute too broadly. The statute provides a mechanism by which certain persons can bring a civil action against a nonprofit religious corporation for ultra vires acts. The statute does not, on its face, bar claims for what essentially amounts to breach of a contractual interest. More important, the statue applies to claims “as between the corporation or member, officer or director and any third person.” (Corp. Code ; 9141(a) (emphasis added).) The Church has established a triable issue of material fact as to whether it is a “third person” because the Church may have director’s rights in OCB.

B. Declaratory Relief Claims

In its second cause of action for declaratory relief, the Church seeks (1) a declaration that the Church is a member of OCB with all membership rights, (2) a determination of how many membership votes the Church can cast, (3) a declaration that the Church’s priests are voting members of the OCB Board, (4) a determination of the voting rights of the Church members on the OCB Board, and (5) a declaration that the bylaws adopted by OCB in September 2019 are invalid. (FSC, Prayer for Relief ¶ 2.)

In his third cause of action, Tseshkovsky seeks a declaration that he and all Church priests are members of the OCB Board with rights held by all directors of OCB and the ability to cast two votes on any matter that comes before the OCB Board for a vote. (FSC, Prayer for Relief ¶ 3.)

The Court has already assessed the merits of this motion with respect to these declaratory relief claims. The Court has concluded (1) the Church is not a member of OCB pursuant to the 1990 Bylaws and therefore cannot cast any votes in the corporation as an OCB member, (2) the Church has established a triable issue of material fact as to whether the Church’s priests, including Tseshkovsky, are voting members of the OCB Board, and (3) as such, the Church has established a triable issue of material fact as to whether the 2019 Bylaws are valid.

OCB contends that the Church is not entitled to any declaratory relief because declaratory relief operates prospectively and is not intended to redress past wrongs. The Court disagrees. The Church presently contends that (1) the Church is an OCB member, (2) the Church has OCB director’s rights, and (3) the 2019 Bylaws are invalid. OCB contests all three contentions. A judicial determination of these contentions would put the parties’ dispute to rest and avoid future probable conflicts between the parties as to control of the corporation and ownership of the properties at issue. These issues are therefore a proper subject for declaratory relief. (See Lee v. Silveira (2016) 6 Cal.App.5th 527, 546 (“The ‘actual controversy’ language in ... section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties.”); see also 26 Cal.Jur.3d (2020) Declaratory Relief, ; 43 (“A controversy involving membership of a club may form the basis of a declaratory relief action.”).)

In his opposition, Tseshkovsky argues that the Court should not review several pieces of extrinsic evidence submitted by OCB because they implicate ecclesiastical doctrines. This argument has no merit.

The California Supreme Court has instructed trial courts to use neutral principles of law in deciding church property disputes. (Episcopal Church Cases (2009) 45 Cal.4th 467, 485.) The California Supreme Court instructs: “State courts must not decide questions of religious doctrine; those are for the church to resolve. Accordingly, if resolution of the property dispute involves a doctrinal dispute, the court must defer to the position of the highest ecclesiastical authority that has decided the doctrinal point. But to the extent the court can resolve the property dispute without reference to church doctrine, it should use what the United States Supreme Court has called the ‘neutral principles of law’ approach.  [Citation.] The court should consider sources such as the deeds to the property in dispute, the local church’s articles of incorporation, the general church’s constitution, canons, and rules, and relevant statutes, including statutes specifically concerning religious property, such as Corporations Code section 9142.” (Id. at 473.)

In deciding this summary judgment motion, the Court has considered OCB’s articles of incorporation, bylaws, and minutes. The Court has also looked to the declaration of a parishioner as to the intent of the amendment and employed relevant rules of contractual interpretation. No aspect of the Court’s ruling has involved determining questions of religious doctrine. Therefore, no aspect of this ruling has deviated from neutral principles of law.

Motion to Consolidate

The Church moves for an order relating and consolidating this matter with an unlawful detainer action (UD Action) (Case No. 20STUD02948) filed by OCB in Los Angeles Superior Court in April 2020. OCB opposes.

A. Relating Cases

“A pending civil case is related to another pending civil case … if the cases: (1) Involve the same parties and are based on the same or similar claims; (2) Arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact; (3) Involve claims against, title to, possession of, or damages to the same property; or (4) Are likely for other reasons to require substantial duplication of judicial resources if heard by different judges.” (CRC Rule 3.300(a).)

The Court concludes that the instant case and the UD Action must be related because all four grounds set forth in this rule of court are applicable.

The first basis is applicable because these actions involve the same parties — OCB and the Church — and are based on similar claims — the Church’s right to purchase the properties. Specifically, in this action, the Church seeks a court order compelling OCB to sell the three properties pursuant to an alleged option contract in the corporation’s bylaws. In the UD Action, OCB seeks a court order evicting the Church from two of the three properties — the Church Property and Russian Hall. The Church has not answered the UD Action complaint because it has not been served with summons in the UD Action. (See CRC Appendix I, Rule 1 (temporary prohibition of issuance of summons in UD Actions due to COVID-19).) However, the Church credibly represents that its defense to the UD Action will be that it has the right to purchase the two properties. (Mot. at 3; see Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385 (“[A] successful claim of title by the tenant would defeat the landlord’s right to possession.”).)

The second ground is applicable because the cases arise from the same or substantially identical transactions and incidents. Courts in both actions must determine whether the Church’s contractual right to purchase the properties is valid and enforceable.

The third ground is applicable because the actions involve “claims against, title to, possession of, or damages to the same property.” In this action, the Church seeks title to and possession of the three properties. In the UD Action, OCB seeks possession of two of the three properties.

The fourth ground is applicable because the cases will involve substantial duplication of judicial resources if heard by different judges due to the overlap of issues referenced ante.

In opposition, OCB points out that the Church has failed to file a Notice of Related Case in the UD Action. (CRC Rule 3.300(d).) To cure this procedural defect, the Court orders the Church to do so forthwith.

B. Consolidating Cases

CCP section 1048 grants discretion to trial courts to consolidate actions involving common questions of law or fact. (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978.) CCP section 1048(a) states in full: “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”

“Under the statute and the case law, there are thus two types of consolidation: a consolidation for purposes of trial only, where the two actions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one case number and result in only one verdict or set of findings and one judgment.” (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147.) In determining whether consolidation is warranted, trial courts usually consider several factors including (1) the timeliness of the motion, i.e., whether granting consolidation would delay the trial of any of the cases involved, (2) complexity, i.e., whether joining the actions involved would make the trial too confusing or complex, and (3) prejudice, i.e., whether consolidation would adversely affect the rights of any party. (Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2019) ¶ 4:432.20.)

The Church argues that the Court should consolidate the actions or stay the UD Action because the Church would be prejudiced if forced to litigate this complex issue of title under the summary procedures governing unlawful detainer actions. The Court agrees.

Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385 is instructive: “[T]he trial court has the power to consolidate an unlawful detainer proceeding with a simultaneously pending action in which title to the property is in issue. That is because a successful claim of title by the tenant would defeat the landlord's right to possession. [Citation.] When an unlawful detainer proceeding and an unlimited action concerning title to the property are simultaneously pending, the trial court in which the unlimited action is pending may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or it may consolidate the actions. [Citation.] If it does neither and instead tries the issue of title under the summary procedures that constrain unlawful detainer proceedings, the parties’ right to a full trial of the issue of title may be unfairly expedited and limited. If complex issues of title are tried in the unlawful detainer proceeding, the proceeding loses its summary character; defects in the plaintiff’s title ‘are neither properly raised in this summary proceeding for possession, nor are they concluded by the judgment.’ ”

Like in Martin-Bragg, the same parties are embroiled in two civil actions: one for unlawful detainer for possession of real property and another contesting the landlord’s right to own the property in question. In accordance with Martin-Bragg, the Court finds that a stay of the UD Action is an effective and proper solution. If the Church prevails in this action on its specific performance claim and thereafter purchases the properties, the UD Action will be moot. Conversely, if the Court determines in this action that the Church has no right to purchase the properties, then the Church will be collaterally estopped from arguing in the UD Action that it has the right to purchase the properties from OCB.

OCB’s arguments in opposition are inapt. The Court is not consolidating the cases so the Court need not examine CCP section 1048. However, the Court recognizes that these cases do involve common questions of face and law because the Church’s anticipated defense in the UD Action is nearly identical to its specific performance claim in this action. OCB also argues that the Church is not contesting OCB’s ownership of the properties. This argument is specious. There is a dispute about OCB’s ownership of the properties because the Church seeks to exercise a contractual right to purchase the properties from OCB.

Finally, the Judicial Council has ordered a moratorium on all unlawful detainer actions for both residential and commercial.

Conclusion

OCB’s motion for summary judgment is denied. OCB’s motion for summary adjudication is granted in part. OCB is entitled to a judicial declaration that the Church is not a member of OCB pursuant to the 1990 Bylaws and therefore cannot cast any votes in the corporation as an OCB member. OCB’s motion for summary adjudication is denied in all other respects.

The Church’s motion to relate and consolidate the instant case and the UD Action is granted in part. The UD Action and the instant case are deemed related. The UD Action shall be stayed pending the resolution of the instant case. The Church is ordered to file a Notice of Related Case forthwith.

Case Number: *******9423    Hearing Date: February 28, 2020    Dept: 32

“Protection of the Holy virgin,” the russian orthodox church, et. al., Plaintiffs, v. OUR CHURCH BUILDING, INC., Defendants.

Case No.: *******9423 Hearing Date: February 28, 2020 [TENTATIVE] order RE: (1) ocb’s motion for relief from waiver of objections (2) Church’s motion to compel ocb’s further responses to requests for production of documents, set two (3) church’s motion to compel ocb’s further responses to requests for production of documents, set three (4) church’s motion to compel ocb’s further responses to form interrogatories, set one (5) ocb’s motion for leave to file a first amended answer

BACKGROUND

A. Complaint

Plaintiffs “Protection of the Holy Virgin,” the Russian Orthodox Church (“Church”) and Father Viktor Tseshkovsky (“Tseshkovsky”) (collectively, “Plaintiffs” or “Cross-Defendants”) commenced this action against Our Church Building, Inc. (“Defendant” or “OCB”) on December 24, 2018.

Plaintiffs operative pleading is contained in two documents: the First Amended Complaint (“FAC”) filed on February 21, 2019 and a First Supplemental Complaint filed on October 9, 2019. Both pleadings assert causes of action for (1) specific performance by the Church against OCB, (2) declaratory relief by the Church against OCB, and (3) declaratory relief by Tseshkovsky against OCB.

B. Cross-Complaint

On March 28, 2019, OCB filed a Cross-Complaint against Tseshkovsky for (1) breach of fiduciary duty and (2) defamation.

MOTION FOR RELIEF FROM WAIVER OF OBJECTIONS[1]

OCB moves for an order relieving it from its waiver of objections made in response to the Church’s (1) Request for Production of Documents (“RPD”), Sets Two and Three, (2) Form Interrogatories (“FI”), Set One, (3) Special Interrogatories, Set One, and (4) Requests for Admission (“RFA”), Set One.

A. Legal Standard

If a party to whom discovery requests are directed fails to serve a timely response, the party to whom the requests are directed waives any objection to the requests, including ones based on privilege. (CCP ;; 2030.290(a), 2031.300(a), 2033.280(a).) The court, on motion, may relieve that party from this waiver on its determination that (1) the party has subsequently served a response that is substantially code-compliant and (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Ibid.)

B. Discussion

OCB requests relief from its waiver of objections based on a calendaring mistake.

OCB submits the following evidence. On August 30, 2019, the Church served OCB with the aforementioned written discovery. (Gregory Decl. ¶ 2.) In email correspondence, OCB’s counsel Keith M. Gregory (“Gregory”) and the Church’s counsel Steve Cameron (“Cameron”) agreed to extend OCB’s deadline to respond to this written discovery to October 30, 2019. (Gregory Decl. ¶ 18, Ex. K.) However, pursuant to a calendaring error, Gregory mistakenly believed that they agreed extended this deadline to November 4, 2019. (Gregory Decl. ¶ 18.) In accordance with this mistaken belief, Gregory served OCB’s responses to this written discovery on November 4, 2019. (Gregory Decl. ¶ 11, Ex. F.)

OCB’s motion is well-taken. “A mistake of fact is when a person understands the facts to be other than they are.” (Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921.) OCB has shown that its attorney committed a mistake of fact by erroneously calendaring the date by which discovery responses were due. Although calendaring errors are not always excusable, the Court concludes that this error is excusable because of the minor discrepancy between the two dates (five days), OCB’s faithful adherence to the mistaken date, and the Court’s belief that mistakes happen.

Apart from challenging Gregory’s explanation, which the Court has deemed adequate, the Church responds that this request for relief is improper because OCB failed to serve code-compliant responses. The Church points to three of OCB’s responses to its RPDs. This argument is unavailing. The question is substantial compliance, not absolute compliance. Three allegedly defective responses among several does not negate substantial compliance.

C. Conclusion

OCB’s motion for relief from waiver of objections is GRANTED.

MOTIONS TO COMPEL FURTHER RE: RPD, SETS TWO AND THREE[2]

The Church moves to compel OCB to produce (1) documents to RPD, Set Two, No. 3 and (2) further responses to RPD, Set Two, Nos. 4-5. The Church also moves to compel OCB to provide further responses to the Church’s RPD, Set Three, Nos. 1-3.

RPD, Set Two, No. 3 asks OCB for “[d]ocuments reflecting donations and other contributions to OCB by the Church.” RPD, Set Two, Nos. 4 and 5 ask for “[w]ritten letters, emails, or other documents that reflect, refer, or relate to communications between members of the Administrative Committee that relate to the identity and number of votes held by” (1) members of OCB (RPD No. 4) and (2) the Board of Directors (RPD No. 5).

RPD, Set Three, Nos. 1-3 ask for “[t]he minimum number of documents that show payments made by the Church for any mortgage or others secured lien on” (1) the Church Property located at 2041 Argyle Avenue, Los Angeles, CA 90068 (RPD No. 1), (2) the Apartment Building located at 2062 N. Vine Street, Los Angeles, CA 90068 (RPD No. 2), and (3) Russian Hall located at 2031 Argyle Avenue, Los Angeles, CA 90068 (RPD No. 3).

OCB objected to each of these requests.[3] OCB’s central objection is that any documents responsive to these requests have already been made available to the Church or are equally available to the Church.

OCB submits the following evidence in support of this objection and in opposition to these motions. OCB is a volunteer-run nonprofit corporation whose directors are either elderly (70’s) or hold full-time jobs. (Seabolt Decl. ¶ 8; Taylor Decl. ¶¶ 5-6.) Most of the individuals with personal knowledge of the facts the Church seeks discovery of are dead, ill, or not reachable. (Seabolt Decl. ¶ 3.) Accordingly, the only present means of responding to the Church’s discovery is by reviewing OCB’s sixty years of corporate documents, which are contained in thirteen boxes currently located at the offices of OCB’s counsel. (Seabolt Decl. ¶¶ 3-4; Taylor Decl. ¶ 8.) OCB has already made these boxes available to the Church for inspection and copying and continues to make these documents available for inspection. (Seabolt Decl. ¶¶ 5, 9; Taylor Decl. ¶ 8.) As part of previous discovery efforts, the Church has previously inspected these documents. (Ibid.)

To date, OCB has spent a combined total of nearly 100 hours reviewing documents in order to respond to the Church’s discovery requests. (Seabolt Decl. ¶ 7.) Romy Taylor (“Taylor”), OCB’s President and a full-time high school teacher, has spent approximately 30 hours reviewing these documents. (Taylor Decl. ¶ 9.) Taylor estimates that a review of all the documents to determine their relevancy to these requests could take upwards of 300 to 400 hours. (Taylor Decl. ¶ 9; see also Seabolt Decl. ¶ 7.)

OCB’s evidence of burden is well-taken.[4] OCB has shown that it has insufficient labor resources to handle the broad discovery requests propounded by the Church. As such, the burden of locating responsive documents should be shifted to the Church. For this purpose, OCB shall continue to give the Church access to the thirteen boxes containing responsive documents to these requests. To the extent that OCB claims that certain documents (contained inside or outside the boxes) are privileged and non-disclosable, OCB must prepare a privilege log.

MOTION TO COMPEL FURTHER RE: FI, SET ONE

The Church moves to compel OCB to provide further responses to FI, Set One, Nos. 12.1-12.7, 13.1-13.2, 14.1-14.2, 17.1, and 50.1-50.6.

A. 45-Day Time Limitation

“Unless notice of [a motion to compel further] is given within 45 days of the service of the verified response, or any supplemental verified response …, the propounding party waives any right to compel a further response to the interrogatories.” (CCP ; 2030.300(c).) Violation of section 2030.300(c)’s 45-day limitation is jurisdictional in the sense that it renders the court without authority to rule on motions to compel other than to deny them. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

OCB contends that this motion is untimely and must be denied because the Church never served OCB with the motion. OCB’s counsel Daniel G. Seabolt (“Seabolt”) explains that OCB mail-served supplemental responses to FI, Set One, on December 10, 2019. (Seabolt Decl. ¶ 16, Ex. G.) This gave the Church until January 29, 2020 to bring this motion. (CCP ;; 1013, 2030.300(c).) Seabolt declares that on January 22, 2020, his office received the Church’s Separate Statement, but not its other moving papers in connection with this motion. (Seabolt Decl. ¶ 19.) According to Seabolt, the proof of service on the Separate Statement was blank and thereby failed to indicate the manner or date of service. (Seabolt Decl. ¶ 20.)

OCB’s argument is unpersuasive. The question for purposes of “jurisdiction” is whether OCB received “notice” of this motion within 45 days of its supplemental responses. OCB acknowledges that it received the motion’s separate statement within this time period. The separate statement indicates (1) the date of the hearing on the motion — February 24, 2020, (2) the location of the hearing — Department 32, (3) the nature of the motion — a motion to compel further responses to FI, Set One, (4) the requests at issue, and (5) the points in support of a further response. Under the circumstances, the Court concludes that OCB received adequate “notice” by receiving this motion’s separate statement.

B. FIs

1. FI Nos. 12-14

FI Nos. 12.1-12.7 and 13.1-13.2 concern the responding party’s investigation; FI Nos. 14.1-14.2 concern statutory or regulatory violations.

OCB objected to each of these interrogatories on the ground that the term “incident” is vague and ambiguous. The Court disagrees.

The Form Interrogatories prepared by the Judicial Council of California give the propounding two options to define the term “incident.” First, the propounding party can define “incident” as “the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.” Second, the propounding party can devise its own definition of the term “incident.” The Church chose the second option and defined “incident” as “[t]he history of amendments to OCB’s bylaws, the history of the transfer of voting rights by OCB members, anything related to the Church’s right to purchase the real properties owned by OCB as well as the agreement for OCB to sell the properties to the Church as set forth in OCB’s bylaws.”

This definition is adequate. Similar to the approved definition of “incident,” the Church has defined “incident” by enumerating the “circumstances and events surrounding the alleged … injury.” Further, the definition of “incident” must, by necessity, be broad in order to capture the many diverse aspects of this case.

Further responses to FI Nos. 12.1-12.7, 13.1-13.2, and 14.1-14.2 are required.

2. FI No. 17.1

FI No. 17.1 asks about OCB’s responses to the Church’s Requests for Admission. For each response that is not an unqualified admission, OCB was asked to state (1) the facts upon which the response is based, (2) contact information of those who have knowledge of the facts, and (3) documents that support the responses and the contact information of those in possession of the documents.

OCB provided supplemental responses to this request which (1) identify RFAs to which unqualified admissions were not given, (2) state facts upon which the responses are based, (3) state contact information for those with knowledge of those facts, and (4) enumerate a couple supporting documents.

The Church requests a further response because OCB failed to pinpoint the location of various supporting documents. The Court agrees. OCB must identify with more particularity the documents supporting its RFA responses. If OCB fails to do so, the Court may preclude OCB from using such documents at trial.

A further response to FI No. 17.1 is required.

3. FI Nos. 50.1-50.6

FI Nos. 50.1-50.6 ask OCB to provide information about agreements alleged in the FAC and Supplemental Complaint.

OCB failed to provide a substantive response, claiming that “[t]here is no agreement alleged in the pleadings.” In opposition, OCB maintains this claim. OCB acknowledges that the Church alleges in its operative pleading that OCB entered into an agreement to sell its property to the Church. Still, OCB claims that exhibits attached to the pleading show that no such agreement actually exists because, among other things, OCB never gave its approval to sell the property.

This argument is unavailing. This is not a demurrer where the Court will assess the legal sufficiency of the Church’s pleadings and attached exhibits. This is a discovery motion where “the factual issues relate solely to the scope of discovery and do not require the trial court to decide factual issues relating to the merits of the action.” (Swift v. Superior Court (2009) 172 Cal.App.4th 878, 883.) Because the Church has alleged an agreement, OCB must answer these interrogatories concerning this alleged agreement.

Further responses to FI Nos. 50.1-50.6 are required.

MOTION FOR LEAVE TO FILE AMENDED ANSWER

OCB moves for an order granting OCB leave to file its First Amended Answer (“FAA”) to the Church’s First Supplemental Complaint. The amendment’s primary purpose is the assertion of more affirmative defenses.

The Church opposes this motion on one ground: prejudice. (Opp. at 2.) According to the Church, OCB has acted unfairly and inconsistently by having taken the position that “there is no agreement alleged in the pleadings” in response to FI Nos. 50.1-50.6 and now seeking to assert contract defenses by way of this amendment. The Court agrees that this is an unfair inconsistency and, to resolve this inconsistency, has ordered OCB to provide further responses to FI Nos. 50.1-50.6 based on the Church’s allegation that a contract exists between the parties. This order resolves this claim of prejudice.

Without a showing of prejudice, the policy of liberality towards amendments to pleadings controls. OCB’s motion for leave to file the FAA is granted.

CONCLUSION

OCB’s motion for an order relieving it from its waiver of objections made in response to the Church’s (1) RPD, Sets Two and Three, (2) FI, Set One, (3) SI, Set One, and (4) RFA, Set One is GRANTED.

The Church’s motion to compel OCB to provide further responses to (1) RPD, Set Two, Nos. 3-5 and (2) RPD, Set Three, Nos. 1-3 is DENIED.

The Church’s motion to compel OCB to provide further responses to FI, Set One, Nos. 12.1-12.7, 13.1-13.2, 14.1-14.2, 17.1, and 50.1-50.6 is GRANTED. Responses are due within 30 days’ notice of this order.

OCB’s motion for leave to file its First Amended Answer to the Church’s First Supplemental Complaint is GRANTED.

No sanctions will be awarded because the Church was only partly successful in brining its discovery motions and OCB was only partly successful in opposing the same.