California Courts of Appeal Reports
KURZ v. FEDERATION OF P?‰TANQUE, A113551 (Cal.App.1st
12-27-2006) HANS KURZ et al., Plaintiffs and Appellants, v.
FEDERATION OF P?‰TANQUE, U.S.A., Defendant and Respondent.
A113551 Court of Appeal of California, First District,
Division One. Filed: December 27, 2006
Appeal from Sonoma County Superior Court, Judge Honorable
Raymond J. Giordano (Sonoma County Super. Ct. No. SCV
237520).
For Plaintiffs and Appellants, Malcolm A. Misuraca.
For Defendant and Respondent, Geary, Shea, O`Donnell,
Grattan & Mitchell, P.C., Raymond J. Fullerton, Jr.
MARCHIANO, P.J.
This case addresses the type of hearing that volunteer
members of a nonprofit sports organization are entitled to
when their organization disciplines them. Hans Kurz and
Bill Carter, volunteer umpires, appeal a judgment entered
after the trial court denied their petition for writ of
mandate. They sought the writ in order to compel the
Federation of P?‰tanque U.S.A. (FPUSA) to vacate two
decisions by FPUSA`s Board of Directors(Board), made
allegedly without a proper hearing, which suspended Kurz
and Carter for one year from their positions as FPUSA
umpires. As we discuss the issue below in the context of the
nature of the nonprofit organization and its disciplinary
procedure, we find no merit in plaintiffs` contentions and
affirm the judgment.
Background
FPUSA is a nonprofit sports organization, the purpose of
which is to build a national body of affiliated clubs and
individuals dedicated to spreading, practicing, and
enjoying the game of p?‰tanque.[fn1] Membership is open to
individuals who reside in the United States. Groups of 10
or more individual members may apply for club membership.
Umpires for member clubs, such as Kurz and Carter, are
individual members in good standing who are nominated for
the position, pass a test, and complete a confirmation
process. FPUSA umpires are neither paid nor reimbursed for
travel expenses.
An “umpire policy,” adopted by FPUSA in March 2005,
provides among other things that “[w]hether officiating or
not, every umpire is required to conduct him/herself in a
manner that complies with the rules of p?‰tanque and that
reflects well on all FPUSA umpires, the organization and
the game of p?‰tanque. Noncompliance . . . may be grounds
for sanction up to and including loss of the umpire`s
license.”
In 2005, the entry forms used in an FPUSA-sponsored
tournament in Sacramento county included language
prohibiting “smoking and drinking of alcoholic beverages on
or off the courts while playing.” On May 12, 2005, Kurz
posted a message on an internet website devoted to p?‰tanque
enthusiasts worldwide. In the message Kurz quoted the
language from the entry form, describing it as a “new
policy” of FPUSA, and said he was “curious how this
situation is handled in other parts of the P?‰tanque world.”
Carter saw Kurz`s message, interpreted the language on the
entry form to be inconsistent with existing rules,[fn2] and
posted a reply. Carter stated FPUSA had not “put out” such
a rule. He described it as a “fraudulent statement put on
[the entry form] by Frank Pipal, the FPUSA Secretary.” He
suggested FPUSA leadership was at fault for allowing the
language to be inserted on the entry form, stating that
Pipal did “not run the FPUSA, unfortunately, no one does.”
Kurz posted a third message in response, creatively
describing the entry form language as “kakamania.” He also
said that, if Carter were to umpire the tournament, he
“strongly encourage[d]” him not to enforce it.
Kurz`s second internet posting prompted a complaint[fn3]
from the chairman of Sport Committee of FPUSA, Louis
Toulon, which he sent to FPUSA president John Rolland on
May 26, 2005. The complaint was also addressed to several
other FPUSA members, including Kurz. Toulon stated that
Kurz`s publicly posted remarks were “a possible breach of
the umpire code,” citing to the umpire policy quoted above.
The following day, Kurz corresponded with Rolland,
providing an initial statement in his defense. Rolland
forwarded this response to Gilles Canesse, chairman of the
FPUSA Disciplinary Committee (Committee), and informed Kurz
that the Committee would be reviewing the matter. In early
June 2005, Kurz corresponded with Canesse, providing him
with letters of support and further statements in his
defense.
The Committee subsequently determined that Kurz`s posted
message did violate FPUSA`s umpire policy. It reported this
determination to the Board, recommending that it suspend
Kurz`s umpire credential for one year, and thereafter place
him on a two-year period of “umpire probation,” “during
which time any misconduct . . . result[ing] in a
Disciplinary Committee enquiry may be considered cause for
permanent revocation of [his] Umpire`s Credential.” On July
13, 2005, the Board adopted this recommendation by a vote
of thirteen to one, with two Board members abstaining.
Pipal, one of the Board members, averred subsequently that
he abstained from voting because the posting by Carter,
which had prompted Kurz`s posting, referred to him by name.
Pipal notified Kurz of the Board`s ruling on July 20, 2005.
Meanwhile, on July 10, 2005, Robert Pierre sent a message
to Pipal and others. In it, he requested that a “review[]”
be conducted regarding the message that Carter had posted
on the internet site. He objected to Carter`s message
because it had “mentioned a FPUSA board member [by name] in
his capacity as an umpire” and it had included remarks that
were “not only uncouth but . . . more like libel.” On July
12, 2005, Rolland sent a complaint to the Committee in
which he complained that “[f]or years the FPUSA [has been]
dealing with the negative and damaging comments of . . .
Carter towards the leadership of the [FPUSA].” Rolland
suggested that the Committee “revoke . . . Carter`s umpire
license and suspend him from FPUSA activities for a long
time if not forever.” Pipal sent a message to Carter two
days later, informing him that Rolland had “referred the
matter of [his internet posting] to the Disciplinary
Committee for review.” Pipal`s message included a copy of
the internet posting at issue. Carter responded with a
message to Canesse, asking him for clarification of the
nature of the complaint against him, and what rule he had
allegedly violated. Canesse replied by forwarding a copy of
Rolland`s complaint. He also cited several “excerpts [he]
considered relevant” to the Committee`s deliberations.
These included an FPUSA rule, which charges umpires with
the duty of “ensuring that the rules of the game and the
administration rules are strictly adhered to,” the FPUSA
“Code of Behavior,” and a section of FPUSA`s constitution
which provided that members “may be expelled from
membership by a two-thirds . . . majority of votes [of the]
Board of Directors. . . . [but that] [s]uch a vote shall
not be taken . . . until after the member . . . has been
advised of the proposed action and given the opportunity of
being heard by the Board of Directors.” Canesse also quoted
the umpire policy that we noted above. He stated that the
fact Carter was an umpire was “relevant” to the Committee`s
review.
At this point, Carter retained counsel and asked for an
extension of time to prepare a “formal response.” He also
sought a hearing, preferably in California “where the most
obvious witnesses for and against him will be found.” On
August 4, 2005, the Committee sent a message to Carter
stating that “[t]he only issue before [it], at this time,
involve[s] certain of your internet postings, and whether
they violate the 2005 Umpire Policy.” Thus, “[t]he only
sanctions that [may] be rendered . . . relate to your
serving as an FPUSA umpire.” It stated explicitly that no
action regarding membership revocation was being
considered. The Committee also informed Carter that it
conducted its business by e-mail and that Carter should
submit his defense in writing. Further, the Committee “saw
no need for further witnesses” since “[t]he internet
postings speak for themselves.” On August 7, 2005, Carter
submitted to the Committee a formal written response to
Rolland`s complaint.
At the end of August 2005, the Committee determined that
Carter had violated the umpire policy, reported its
determination to the Board, and recommended that Carter
receive the same sanction it had imposed on Kurz — a
one-year suspension of his umpire credential and a two-year
probationary period. By an e-mail message sent September 13,
2005, Pipal notified Carter that the Board had adopted the
Committee`s recommendation. Later, he averred that the
Board`s vote had been nine to two, with himself and one
other Board member abstaining from the vote.
Kurz and Carter filed a petition for writ of mandate in the
Sonoma County Superior Court on September 30, 2005,
choosing that forum evidently because Pipal was a resident
of Sonoma. They alleged that FPUSA, in suspending their
umpire credentials, had violated their “common law right of
fair procedure” and had improperly sanctioned them for
“exercising their right of free speech.” Specific violations
of “fair procedure” included the failure of FPUSA to
provide Kurz with a written copy of the complaint against
him; its improper pursuit of a charge that had not been
explicitly included in Rolland`s complaint against Carter;
its failure to follow the disciplinary procedures set out
in its own bylaws;[fn4] its failure to respond to Carter`s
requests for clarification of the charges against him; its
failure to provide either Kurz or Carter with a formal
hearing; its failure to provide a record of the Committee`s
proceedings against them; its failure to exclude Canesse,
Pipal, Rolland, and several others from the proceedings
because of their bias against Kurz and Carter; its pursuit
of a pretextual charge against Carter in a proceeding
actually motivated by the malice of Pipal, Rolland, and
others; its pursuit of sanctions against them merely for
exposing the improper promulgation of a false rule, which
they were bound to do as umpires; the pursuit of charges
that they had violated an “umpire policy” that had not yet
been finally adopted until after the complaints against
them were filed; and its failure to specify in the umpire
policy any formal disciplinary procedure and the body
authorized to conduct such proceedings.
One week after filing their petition, the court signed an
order prepared by counsel for Kurz and Carter. The order
directed FPUSA to appear on November 30, 2005, to show
cause why the court should not issue a “temporary or
preliminary” writ of mandate reinstating them to their
positions as umpires. On November 30, 2005, the court
continued the matter. FPUSA filed a return by verified
answer on January 17, 2006. Its opposing papers included
declarations with attached exhibits. Kurz and Carter
subsequently filed reply papers that included their own
supporting declarations with attachments.
At the hearing on February 17, 2006, none of the parties
appeared and the court adopted its tentative ruling, which
denied the petition. (See Cal. Rules of Court, rule 324;
Super. Ct. Sonoma County, Local Rules, rule 5.6.) In
stating its reasons for the ruling, the court concluded
that the common law doctrine of fair procedure was not
applicable to the proceedings in issue, because the
proceedings had not implicated three “essential elements”
that limited application of the doctrine. That is, FPUSA
was not a private organization “engaged in activities
affecting the public interest,” its proceedings had not
impaired a “substantial economic interest” possessed by
Kurz or Carter, and FPUSA`s action had not “excluded or
expelled [them] from [its] membership.”
The court also found that FPUSA had afforded Kurz and
Carter a “fair procedure.” Specifically, each had been
“notified of the complaint, permitted to make a written
statement in defense, and permitted to submit any other
written materials, including written statements by third
parties.” The court noted additionally that the Board had
acted to ensure fairness in the proceedings, in that Pipal
and another Board member had abstained from voting.
Finally, the court found that the sanctions, which involved
“suspension of the privilege to umpire,” but not “expulsion
from the organization or any restriction upon membership
status,” was “wholly consistent with FPUSA rules.”
On March 15, 2006, the court entered both a formal order
denying the petition, and a “Judgment of Dismissal.” This
appeal followed. (Code Civ. Proc., § 904.1, subd.
(a); see Catalina Investments, Inc. v. Jones (2002) 98
Cal.App.4th 1, 5, fn. 3.)
Discussion
A. Standard of Review
When reviewing a trial court`s ruling on a petition for
traditional writ of mandate, we review any findings under
the substantial evidence standard. We review independently
questions of law based on undisputed facts or facts
properly found by the trial court. (See Lomeli v.
Department of Corrections (2003) 108 Cal.App.4th 788, 794;
see also Eisenberg et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2005) § 8.4.2,
pp. 8-2 to 8-3.)
B. Corporations Code Section 7341
The Corporations Code`s Nonprofit Corporation Law includes
a part governing the formation and operation of Nonprofit
Mutual Benefit Corporations. (Corp. Code, § 7110 et
seq.) Under this part, a nonprofit mutual benefit
corporation may, by its articles or bylaws, provide for the
admission of persons to membership. (Corp. Code, §
7310 et seq.) Such a corporation may not expel or suspend a
member, nor may it terminate or suspend any membership,
except according to procedures that satisfy the
requirements of Corporations Code section 7341. (Corp.
Code, § 7341, subd. (a).) This section requires that
any expulsion, suspension, or termination of a member or
membership be conducted in good faith and in a fair and
reasonable manner. (Corp. Code, § 7341, subd. (b).)
A corporation`s procedure in taking such action is deemed
to be “fair and reasonable” when: (1) its provisions have
been set forth in the articles or bylaws, or copies of the
provisions are sent annually to all members pursuant to the
articles or bylaws; (2) the procedure provides for 15 days`
prior notice of any proposed expulsion, termination, or
suspension and the reasons for such action; and (3) the
procedure provides an opportunity for the member to be
heard, orally or in writing, not less than five days before
the effective date of the proposed action, by a person or
body authorized to determine whether or not the proposed
action should be taken. (Corp. Code, § 7341, subd.
(c).) A court, however, may find “other procedures to be
fair and reasonable when the full circumstances . . . are
considered.” (Corp. Code, § 7341, subd. (b).)
Kurz and Carter contend it was error to deny their petition
for writ of mandate because FPUSA did not comply with the
requirements of Corporations Code section 7341.
Specifically, they urge that FPUSA did not act in good
faith. They also contend that FPUSA failed to utilize
procedures that comply with those specified in Corporations
Code section 7341, subdivision (c), in that it failed to
follow the disciplinary procedures it had published in the
“Code of Behavior” portion of its bylaws. (See fn. 2,
above.)
The verified petition and answer, taken together, establish
that FPUSA is a nonprofit corporation formed in Washington,
D.C. FPUSA argues that, as a foreign corporation, it was
not subject to the requirements of Corporations Code
section 7341. Yet a foreign corporation may be subject to
section 7341, as well as other provisions of the Nonprofit
Mutual Benefit Corporation Law, to the extent it conducts
business within California. (See Corp. Code, §
8910.) Since FPUSA failed to raise this argument below, we
assume for the sake of argument that Corporations Code
section 7341 may apply to FPUSA in an appropriate case.
But this is not such a case. Corporations Code section 7341
applies only when the proposed action is to expel or
suspend a member of the corporation, or to terminate or
suspend a membership.[fn5] (Corp. Code, § 7341,
subd. (a).) Kurz and Carter argue, as they did below, that
Corporations Code section 7341 should still be applicable
because the result of the proceedings against them could
have resulted in their suspension or expulsion from
membership. The record, however, does not support this
argument. With respect to the proceedings against Kurz, the
initial complaint sent by Toulon was limited on its face to
a charge that Kurz`s internet posting was a possible breach
of the umpire policy. As we have noted, this policy states
that any violation “may be grounds for sanction up to and
including loss of the umpire`s license.” In Kurz`s case,
there is no indication the Committee ever considered any
sanction other than the suspension of Kurz`s umpire license.
With respect to Carter, it is true that the initial
complaint sent by Rolland asked the Committee to consider
not only revoking Carter`s umpire credential, but also
suspending him “from FPUSA activities for a long time if
not forever.” It is also true that, when Carter initially
sought clarification of the charges against him, Canesse,
responding on behalf of the Committee, quoted bylaws and
rules it deemed “relevant” to Carter`s case, and these
quoted excerpts suggested the possibility of action
suspending or terminating his membership. Nevertheless, in
its message to Carter dated August 4, 2005, the Committee
in essence amended and clarified its proposed action,
stating that it was considering only the issue whether
Carter`s internet posting violated the umpire policy. It
also explicitly stated that it was not considering any
sanction that would affect Carter`s membership.
We conclude Corporations Code section 7341 did not govern
Kurz`s case, because his rights as a member of FPUSA were
never implicated. This section also did not apply in
Carter`s case once the Committee notified him that it was
not considering any action involving his membership rights.
More importantly, we observe that the trial court found
Kurz and Carter “were afforded a fair procedure.” In doing
so, it necessarily rejected their argument that FPUSA had
violated Corporations Code section 7341. In our view,
implicit in this finding is a determination that, even if
the proceedings did not comply with the procedural
requirements specified in section 7341, subdivision (c),
they were nevertheless “fair and reasonable [under] the
full circumstances.” (Corp. Code, § 7341, subd.
(b).)
The evidence presented in the record, including the facts
summarized above, is essentially undisputed[fn6] and does
not compel the conclusion that either the Committee or the
Board conducted its proceedings in bad faith. On the other
hand, it does show that both Kurz and Carter received
adequate, actual notice of the proposed actions against
them, and that both were able to avail themselves of an
opportunity to present a written defense. At the time of
these proceedings, the procedures set out in the FPUSA
bylaws applied only when membership rights were implicated
— FPUSA was not bound to follow them in proceedings
involving only the suspension of umpire credentials.
Moreover, it appears the nonprofit FPUSA, at least at the
time of these proceedings, had a limited ability to provide
formal hearings in any disciplinary proceeding. The record
shows that the Committee and the Board routinely conducted
business “via e-mail” because the members of these bodies
were far-flung and FPUSA had little income to fund travel
expenses.[fn7]
On review of the undisputed evidence, we arrive
independently at a conclusion in agreement with the trial
court`s implicit determination: the proceedings against
Kurz and Carter were fair and reasonable under the full
circumstances and did not violate Corporations Code section
7341.
C. Common Law Right to Fair Procedure
“The purpose of the common law right to fair procedure is
to protect, in certain situations, against arbitrary
decisions by private organizations.” (Potvin v.
Metropolitan Life Ins. Co. (2000) 22 Cal.4th 1060, 1066
(Potvin).)[fn8] When this common law doctrine applies, a
private organization is required to proceed in its
decision-making process in a manner that is both
“`substantively rational and procedurally fair.'” (Ibid.,
quoting Pinsker v. Pacific Coast Society of Orthodontists
(1974) 12 Cal.3d 541, 550.)
As noted above, Kurz and Carter argued below that the
common law right of fair procedure applied to the
proceedings against them. In reiterating this argument on
appeal, they rely chiefly on Ezekial v. Winkley (1977) 20
Cal.3d 267 (Ezekial).
In Ezekial, a licensed physician accepted an offer by a
private teaching hospital to enter and participate in its
surgical residency program. Successful completion of the
program was necessary for the physician to attain the
status of a board certified general surgeon. The hospital
dismissed the physician from its program without providing
any notice or hearing. The physician brought an action
seeking, among other things, injunctive relief requiring
his reinstatement pending the hospital`s compliance with
the common law requirements of “fair procedure.” In
reversing a judgment of dismissal, which followed an order
sustaining the hospital`s demurrer, the Supreme Court held
that the physician had adequately pleaded a cause of action
under the “fair procedure” doctrine. (Ezekial, supra, 20
Cal.3d at pp. 269-270, 279.)
In the course of its decision the Supreme Court discussed
the development of the “fair procedure” doctrine. It noted
the doctrine had been “rather narrowly applied to
situations with substantial economic ramifications,” at
least with regard to proceedings in which private
organizations had excluded one or more individuals from
membership. (Ezekial, supra, 20 Cal.3d at p. 272.) But
courts had given the doctrine a “broader application” in
cases involving private organizations that had expelled
members. The Supreme Court stated that, in these cases,
“[t]he underlying theme . . . is that membership in an
association, with its associated privileges, once attained,
is a valuable interest which cannot be arbitrarily
withdrawn.” (Id. at p. 273.) Thus, these decisions
“comport[ed] with the broader principle that one on whom an
important benefit or privilege has already been conferred
may enjoy legal protections not available to an initial
applicant for the same benefit.” (Ibid.)
Citing the above-quoted language, Kurz and Carter insist
that the Supreme Court in Ezekial thereby affirmed a line
of expulsion cases in which the need to demonstrate an
impaired economic interest was relaxed. They suggest, in
other words, that the trial court`s ruling was error to the
extent it determined the “fair procedure” doctrine was
inapplicable because the proceedings at issue had not
“impair[ed] the affected individual`s substantial economic
interest.”
First, we observe that this language from Ezekial is mere
dicta, in which the Supreme Court is attempting to describe
a “theme” underlying its earlier expulsion cases.
Elsewhere, the Supreme Court was careful to point out the
impairment of a significant economic interest in the case
before it. It emphasized that the physician had alleged
facts indicating the hospital had “assumed the power to
permit or prevent [his] practice of a surgical specialty
and to thwart [his] enjoyment of the economic and
professional benefits flowing therefrom.” (Ezekial, supra,
20 Cal.3d at p. 274, italics added.) Further, in its later
decision in Potvin, the Supreme Court again analyzed two of
its earlier expulsion cases, and observed that in each case
it had applied the doctrine “to protect the affected
member`s property rights.” (Potvin, supra, 22 Cal.4th at p.
1066.)
Even if we accept the dictum in Ezekial — that the
common law “fair procedure” doctrine should be applied more
broadly in expulsion cases, this is not such a case. As the
Supreme Court in that decision said, such broader
application is premised on the “valuable interest” in
membership rights. (Ezekial, supra, 20 Cal.3d at p. 273.)
Here, the action by FPUSA implicated only Kurz`s and
Carter`s positions as unpaid umpires.[fn9] Kurz and Carter
have not drawn our attention to any authority that has
applied the common law “fair procedure” doctrine in any
analogous situation, where the private organization`s action
has not adversely implicated either an economic interest or
a fundamental membership right. (Cf. Kim v. Southern Sierra
Council Boy Scouts of America (2004) 117 Cal.App.4th 743,
747-748 (declining to extend application of the doctrine to
a situation in which the alleged detriment suffered was
“the absence of the prestige and honor associated with a
specific rank in or award conferred by a . . . social
organization . . . whose formation and activities are
unrelated to the promotion or advancement of the economic
or business interests of its members”).) No policy reason
or rationale from any case compels us to extend the
principle to encompass internal decisions that are
unrelated to exclusion or expulsion from membership or that
do not adversely impair a member`s economic interest.[fn10]
Moreover, common sense and judicial restraint would also
dictate that a court should not involve itself in internal
disciplinary actions of the type involved in this
case.[fn11] Such determinations are better left to the
discretion and expertise of the nonprofit mutual benefit
organization`s governing board. Two policy concerns raise a
flashing yellow light: judicial attempts to construe laws
of private organizations may lead the court into what one
law professor characterized as the “dismal swamp,” and also
may lead to the infringement on autonomy for private
voluntary organizations. (Berke v. Tri Realtors (1989) 208
Cal. App.3d 463, 467.)[fn12]
Although we have held that the fair procedure doctrine does
not apply to this case, we note that the trial court
determined the procedure utilized was fair. We conclude
that this ultimate finding includes an implicit
determination, not only that the proceedings satisfied the
requirements of Corporations Code section 7341, but also
that they satisfied the common law “fair procedure”
doctrine. Whether a procedure is “fair” under the common
law doctrine depends on the particular circumstances and
the purpose and nature of the organization. The panoply of
due process is elastic and must be understood in the
context of the organization, its membership, the discipline
to be imposed, and the member`s valuable interest affected
by the action. (See Ezekial, supra, 20 Cal.3d 267.) To be
informed of the charges, the proposed disciplinary action,
and an opportunity in some manner to present countervailing
evidence may satisfy the twin due process requirements of
being substantively rational and procedurally fair, as
opposed to a full blown adversarial process with the right
to counsel and cross-examination.[fn13] Under some
circumstances, for example, a mere written response may be
deemed fair, as opposed to a formal hearing. (See Ezekial,
supra, 20 Cal.3d at p. 279.) In light of the evidence
discussed above,[fn14] we agree with the trial court`s
implicit determination that the proceedings against Kurz
and Carter did not violate the common law “fair procedure”
doctrine, if that doctrine were applicable.
D. The Entry of Judgment Following Denial of a “Temporary”
Writ
The trial court`s hearing on February 17, 2006, was
prompted by an order drafted by counsel for Kurz and
Carter, which sought issuance merely of a “temporary” or
“preliminary” writ of mandate. Kurz and Carter complain
that it was therefore improper for the trial court to deny
the petition in its entirety after that hearing, and error
to enter the subsequent judgment of dismissal. They also
suggest the trial court improperly failed to consider the
evidence that they submitted in support of the petition,
because it never referred to their evidence in its ruling.
We find no merit in these contentions. The proceeding below
was consistent with the governing procedural law. The trial
court issued an order to show cause. In doing so it clearly
treated the order — notwithstanding its incorrect
wording — as the functional equivalent of an
alternative writ. An alternative writ directs the respondent
to perform the act sought to be compelled or else appear
and show cause why it has not been performed. (See Code.
Civ. Proc., § 1087.) This prompts a return to the
petition, which FPUSA duly filed in the form of a verified
answer. (Code Civ. Proc., § 1089.) The reply and
supporting evidence filed by Kurz and Carter performed the
function of countervailing proof. (Code Civ. Proc.,
§ 1091.) At that point, the court had jurisdiction
to hear and determine the merits of the petition. (See
Bleuel v. City of Oakland (1927) 87 Cal.App. 594, 600; see
also Code Civ. Proc., § 1090.) It was entitled to do
so on the basis of the evidence submitted in the form of
declarations. (See Cal. Rules of Court, rule 323.) The
court made its determination at the hearing on February 17,
2006, which it denoted in the minutes as a hearing on the
petition. The order entered after this hearing made findings
and denied the petition. Such an order is typically
followed by a judgment of denial. (See Cody v. Justice
Court of Vacaville (1966) 238 Cal.App.2d 275, 277, fn. 1.)
We construe the “Judgment of Dismissal” to be just that
— a judgment denying the petition on the
merits.[fn15]
The court did not err simply because counsel for Kurz and
Carter framed the order to show cause as one seeking a
“temporary” writ of mandate. Under California law there is
no such creature. If Kurz and Carter misunderstood the
nature of the order their counsel drafted, due to its
incorrect wording, they have shown no prejudice. They
submitted evidence in support of the petition. If it was
designed only to support the issuance of a “temporary” writ
of mandate, Kurz and Carter make no claim that they
mistakenly omitted other additional evidence that might
have been material to the determination of the petition
itself.
As the trier of fact, the trial court was entitled to weigh
the evidence and resolve any conflicts. The fact that it
did not mention the evidence submitted by Kurz and Carter
by no means demonstrates that it improperly failed to
consider that evidence. Error must be affirmatively shown.
(Consaul v. City of San Diego (1992) 6 Cal.App.4th 1781,
1792.)
Disposition
The judgment is affirmed.
We concur:
STEIN, J.,
SWAGER, J.