Filed 4/2/20 Caratao v. Gonong CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

MARC CARATAO,

Cross complainant
and Appellant;

VERONICO AGATEP,

Cross complainant and Respondent,

v.

FERNANDICO GONONG, JR.,

Objector and Appellant.

B294469

(Los Angeles County

Super. Ct. No. BC589650)

APPEAL from an order of the Superior Court of Los Angeles County. Cary Nishimoto, Judge. Affirmed.

Tony Thompson for Cross-complainant and Appellant and Objector and Appellant.

Veronico Agatep, in pro. per., for Cross-complainant and Respondent.

_____________________________

This appeal stems from contested leadership issues at the Filipino-American Community of Los Angeles (FACLA). FACLA has been embroiled in litigation for years. Earlier in the litigation, appellant Marc Caratao and respondent Veronico Agatep were aligned but now have split ways. Caratao along with appellant Fernandico Gonong believe Gonong should be FACLA president, while Agatep believes he is the rightful president of the organization. After entry of judgment following a bench trial on a variety of issues, the disputes continued. Eventually, the trial court sided with Agatep and ordered him installed as FACLA president. This appeal followed.

We conclude Caratao lacks standing to appeal the trial court’s order installing Agatep as the president of FACLA and dismiss him as a party to this appeal. We affirm the challenged order.

BACKGROUND

1. FACLA and the Underlying Litigation

FACLA is a cherished community resource. Unfortunately, however, it has fallen on challenging times. In July 2015, four previous FACLA members filed the underlying complaint against then-president of FACLA Austin Baul, respondent Agatep (who was at the time a FACLA vice-president), and six other FACLA board members. A few months later, appellant Caratao was added as a defendant. The complaint alleged six causes of action, including causes of action for libel, slander, declaratory relief, and injunctive relief. The complaint asserted the defendants improperly denied the plaintiffs’ applications to renew their FACLA memberships, published an “executive order” stating plaintiffs and others had violated the FACLA bylaws (executive order), and improperly amended the FACLA bylaws to extend the terms of the offices to which they were elected. Among other relief, the complaint sought an order terminating improperly extended terms of office.

In April and May 2016, Attorney Mariano Alvarez filed answers on behalf of Agatep, Caratao, and others. Alvarez also filed cross-complaints on behalf of Agatep, Caratao, and others against Baul and one other defendant. The cross-complaints alleged cross claims for indemnity and false light. Agatep’s cross-complaint also alleged a claim for embezzlement or conversion. The cross-complaints claimed Baul’s term as FACLA president ended in December 2015 but Baul improperly usurped that position, continued to wield power of that position, discriminated against FACLA members, and violated FACLA bylaws. Among other things, the cross-complaints sought an order requiring Baul to indemnify the cross-complainants for any liability or damages arising out of the complaint, an order of damages, and “such other reliefs and remedies.”

A bench trial was held over the course of a few days in December 2016. In February 2017, after receiving objections to its proposed statement of decision, the trial court filed its final 32-page statement of decision. The record on appeal does not include either a reporter’s transcript—from trial or from any lower court proceeding—or the trial court’s proposed or final statement of decision or any party’s objections to the proposed statement of decision.

2. March 2017 Judgment

In March 2017, the trial court entered judgment on the complaint in favor of the plaintiffs and, as to some causes of action, against Baul only and, as to other causes of action, against Baul and three other defendants. Judgment on the complaint was not entered against Agatep or Caratao. As to the plaintiffs’ cause of action for injunctive relief, the court ordered among other things the removal of Baul “as President of the Board of Directors of FACLA and as a member of the Board” and the removal of three other defendants (not Agatep or Caratao) as FACLA board members. The court also deemed the executive order void and without legal effect and deemed all members whose names appeared on the executive order reinstated as FACLA members. Finally, the trial court entered judgment on “the cross-complaint for indemnity and false light” “in favor of cross-complainants against all cross-defendants.”

3. Postjudgment Disputes

After the trial court ordered Austin Baul removed as FACLA’s president, competing factions of FACLA members emerged, seeking control of the organization.

a. April 2017 Ex Parte Motion to Enforce the Judgment

In April 2017, approximately one month after entry of judgment, a group of six defendants and cross-complainants, including Agatep and Caratao, successfully moved ex parte to enforce the judgment. Attorney Alvarez represented the group of six moving parties. According to the moving parties, the ex parte motion was necessitated in large part because Baul refused to abide by the trial court’s judgment, including the court’s order removing him as president of FACLA.

On April 28, 2017, the trial court granted the requested ex parte relief and signed the order prepared by Alvarez (April 2017 order). The April 2017 order required Baul and his supporters to vacate the FACLA premises and “immediately turn over the physical possession, control and management [of FACLA premises] to the current active non-terminated Board of Directors specifically the cross-complainants, Veronico Agatep, . . . Marc Caratao, . . . and the current Executive Officers in keeping with the order of succession provided by the FACLA By-laws.” The April 2017 order also required Baul and others to refrain “from acting and representing themselves as Directors and Officers of FACLA.” The order authorized the FACLA board “to take such measures and actions necessary and expedient to carry out the intent and spirit of the Judgment of this court.”

b. Agatep’s September 2018 Motion to Enforce the April 2017 Order

More than one year later in September 2018, Agatep, acting in propria persona, filed a motion to enforce the trial court’s April 2017 order. In his motion, Agatep argued that, in light of the judgment removing Baul as FACLA president and others as FACLA board members as well as the court’s April 2017 order enforcing the judgment, he was next in the line of succession to be FACLA president. Agatep claimed he, Attorney Alvarez, and the other cross-complainants had agreed Agatep would be installed as president, but the agreement was not being honored. In fact, Agatep stated the others prevented him from entering the FACLA premises and tried to convince him “to give the president’s position to” Gonong, which Agatep refused to do. Agatep noted that in May 2017 the trial court had already denied an ex parte application filed by Alvarez on behalf of Gonong and others to install Gonong as the interim FACLA president. Agatep detailed Alvarez’s other unsuccessful attempts to install Gonong as FACLA president through a different court case. Agatep also explained that, after the trial court’s April 2017 order here, Gonong improperly called a FACLA board meeting, during which he purported to appoint himself president.

Caratao together with the three other cross-complainants, all represented by Attorney Alvarez, opposed Agatep’s motion. Although mentioned in Agatep’s motion, Gonong was not a party to the proceedings below and did not file an opposition to the motion. The opposing parties claimed that in March 2016 (i.e., one year before the judgment was entered) Agatep and others on the FACLA board elected Gonong president of FACLA. The opposition noted that following the March 2016 election, “a derivative lawsuit” was filed in another department of the Los Angeles County Superior Court. Although the derivative lawsuit in part sought a judicial affirmation of Gonong as FACLA president, that cause of action had been dismissed. The opposition claimed that by seeking an order installing him as FACLA president, Agatep was trying improperly to modify the judgment, which was final and could not be amended. The opposition also argued that for years both at FACLA meetings and in the derivative lawsuit Agatep had taken the position Gonong was the proper FACLA president.

In his reply in support of his motion, Agatep denied he was requesting a modification of the judgment. He also noted the derivative lawsuit no longer included a claim for judicial affirmation of the purported March 2016 FACLA election, which allegedly included the election of Gonong as president. That claim had been dismissed. Agatep explained he earlier had agreed with Gonong and Attorney Alvarez but “[t]he test of time proved and unfolded to Dr. Agatep that all the accusations instigated by Atty. Alvarez and Mr. Gonong were all trumped up charges.” Agatep also argued at length that his prior counsel, Alvarez, who continued to represent Caratao, Gonong and others, not only had a disqualifying conflict of interest but also had acted unethically below as well as in the derivative lawsuit.

In a minute order dated December 10, 2018, the trial court granted Agatep’s motion (December 2018 order). In its December 2018 order, the trial court explained the March 2017 judgment removed the then existing FACLA officers except for Agatep, who was at the time FACLA’s second vice-president. The court also noted that in its April 2017 order it granted a “motion based on an agreement between Veronico Agatep on the one hand and Attorney Alvarez and ousted directors and board members on the other, . . . but Alvarez and his group refused to comply with the order of succession as provided by the FACLA Bylaws.” The court reviewed Alvarez’s and others’ unsuccessful attempts to have Gonong installed as FACLA’s president, including the unsuccessful May 2017 ex parte. The trial court ordered, “by virtue of this court’s judgment in this action, BC589650, finding that after dismissal of Austin Baul and his directors, the sole remaining officer was second vice president Veronico Agatep. Based on the foregoing circumstances and those which led to the dismissal of Austin Baul and members of his board and officers, Mr. Agatep is ordered installed as President[.] Veronico Agatep is to conduct a membership and board of directors meeting in accord with FACLA BYLAWS and to thereby duly select all new board members and officers. This action is to occur as soon as possible and with due notice to the membership in accord with FACLA BYLAWS.”

4. Appeal

Caratao and Gonong (appellants), acting in propria persona, together filed a notice of appeal from the court’s December 2018 order.

DISCUSSION

1. Standing to Appeal

After briefing on appeal was complete and because the record on appeal did not indicate either Caratao or Gonong was a named party to the proceedings below, we asked the parties to address the issue of appellants’ standing to appeal the trial court’s December 2018 order. (Gov. Code, § 68081.)

Standing to appeal is jurisdictional. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295 (Marsh).) The issue of standing is a question of law. (IBM Personal Pension Plan v. City and County of San Francisco (2005) 131 Cal.App.4th 1291, 1299.) “We liberally construe the issue of standing and resolve doubts in favor of the right to appeal.” (Apple, Inc. v. Franchise Tax Board (2011) 199 Cal.App.4th 1, 13.) Our Code of Civil Procedure provides, “Any party aggrieved may appeal in the cases prescribed in this title.” (Code Civ. Proc., § 902.) “Thus, to have standing to appeal, a person generally must be both a party of record and sufficiently ‘aggrieved’ by the judgment or order.” (Marsh, at p. 295.)

“ ‘A party of record is a person named as a party to the proceedings or one who takes appropriate steps to become a party of record in the proceedings’ ” (In re Miguel E. (2004) 120 Cal.App.4th 521, 539) such as moving to intervene in the trial court or filing a motion to vacate the judgment or order (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736). “A person does not become a party of record merely because his or her name and interest appear in documents filed with the court or are referenced in the judgment.” (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) “One exception to the ‘party of record’ requirement exists in cases where a judgment or order has a res judicata effect on a nonparty. ‘A person who would be bound by the doctrine of res judicata, whether or not a party of record, is . . . [entitled] to appeal.’ ” (Marsh, supra, 43 Cal.App.4th at p. 295.)

On March 9, 2020, appellants filed a letter brief to which they attached trial court documents not included in the previously filed record on appeal. Appellants explained although Caratao had not been named as a defendant initially, plaintiffs amended the complaint and substituted Caratao for a Doe defendant. As noted above, Caratao then answered the complaint and filed a cross-complaint. Accordingly, we conclude Caratao was a party of record to the proceedings before the trial court.

Appellants do not address, however, the second prong of the standing analysis; namely, how Caratao is aggrieved, if at all, by the December 2018 order. In fact, based on postappeal trial court filings of which we have taken judicial notice, it appears that if Caratao was once aggrieved by the December 2018 order, he is no longer. In a declaration dated September 26, 2019, and filed with the court below, Caratao stated he “resigned from the board of [FACLA] on or about March 2019.” Caratao has not addressed, let alone explained how he is aggrieved by the December 2018 order. We conclude Caratao lacks standing to pursue this appeal and, therefore, dismiss him as a party to the appeal.

As to Gonong, appellants explained in their letter brief Gonong was not a named party below. Nonetheless, appellants claim Gonong has standing to pursue this appeal because “he is clearly a party of record . . . because orders have been issued against him and because he must therefore defend himself” and he was aggrieved by orders filed in 2019, i.e., after this appeal was filed. Although we do not agree entirely with this analysis, we conclude Gonong may properly appeal the trial court’s December 2018 order because he was sufficiently aggrieved by that order. (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2006) 141 Cal.App.4th 46, 58.) In particular, after noting Gonong had declared himself president of FACLA, the December 2018 order concluded Agatep—not Gonong—was the rightful president. The court ordered Agatep installed as FACLA president. As such, the December 2018 order affected Gonong’s asserted claim to the FACLA presidency.

2. No Error Shown

a. Rules of Appellate Practice

Before we turn to appellants’ arguments on appeal, we address a few fundamental rules of appellate practice.

A judgment or order of the lower court is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) “ ‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Ibid.) “ ‘ “[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.” ’ [Citation.] ‘ “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” ’ [Citation.] ‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’ ” (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).) The appellant bears the burden of both demonstrating error and providing an adequate record for the reviewing court. (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498; Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) In addition, “ ‘[i]t is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal. [Citation.] If no citation “is furnished on a particular point, the court may treat it as waived.” ’ ” (Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384.)

Unfortunately, appellants run afoul of these appellate rules, thus hindering our review of the issues raised. Appellants’ opening brief includes few citations to the appellate record and many of the citations that are included are incorrect. Their reply brief includes no citations to the record or to legal authority. In addition, appellants opted both to proceed without a reporter’s transcript of any of the proceedings below and not to include in the appellate record relevant documents such as the trial court’s 32-page statement of decision, all of which presumably would have informed our review of the judgment and orders that followed, including the order on appeal. Finally, appellants do not address the parties’ agreement—referenced by both Agatep and the trial court—that Agatep would be installed as FACLA president following entry of judgment and the court’s April 2017 order.

b. No Error

On appeal, appellants argue not only that the December 2018 order improperly modified and expanded the trial court’s April 2017 order but also that Agatep did not request the relief the trial court ordered, namely that Agatep be named president of FACLA. We cannot agree.

We conclude appellants have not demonstrated error. The underlying proceedings clearly involved the management and control of FACLA. The record before us includes references to an agreement between the parties, under which Agatep would be installed as FACLA president. Agatep also refers to this agreement in his respondent’s brief on appeal. Despite the apparent relevance and importance of that agreement, appellants did not include it in the appellate record, nor do they address it in their briefing on appeal. Similarly, Agatep’s brief and the appellate record both reference a May 2017 ex parte brought on behalf of Gonong and others requesting the court’s approval of Gonong as FACLA president. Appellants do not explain why Gonong and others could seek court approval of a proposed FACLA president but Agatep could not. Moreover, without a reporter’s transcript or statement of decision, we do not have a clear understanding of the issues raised at trial or the trial court’s reasoning behind its judgment, which judgment the order on appeal sought to enforce. Based on the context of the underlying case and the record before us, it is reasonable to presume FACLA leadership was addressed during trial or in posttrial proceedings or both. Because of the significant holes in the record and briefing, appellants fail to demonstrate error based on the record presented, and we must presume the December 2018 order is correct. (Jameson, supra, 5 Cal.5th at p. 609; Denham, supra, 2 Cal.3d at p. 564.)

c. Personal Jurisdiction

Appellants also argue the December 2018 order must be reversed because the trial court did not have personal jurisdiction over Gonong. Although appellants do not indicate where in the record they raised this issue below, lack of jurisdiction can be raised at any time. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.)

As an initial matter, we are not convinced the trial court’s December 2018 order asserts jurisdiction over Gonong. The order affects Gonong, but it does not necessarily assert jurisdiction over him. In any event, assuming the trial court asserted jurisdiction over Gonong through its December 2018 order, it was not an improper exercise of the court’s jurisdiction.

“A defendant submits to the court’s jurisdiction by making a general appearance in an action. [Citation.] A general appearance is one in which the defendant participates in the action in a manner which recognizes the court’s jurisdiction. [Citation.] If the defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one.” (Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250.) Here, in his respondent’s brief, Agatep notes repeatedly Gonong filed an ex parte application asking the trial court to approve him as FACLA president, thus submitting to the court’s jurisdiction. Although that ex parte application does not appear to be in the record on appeal, it is referenced in both the December 2018 order as well as in the trial court docket attached to a filing below. Appellants do not address, let alone refute, Agatep’s remarks regarding that ex parte.

As noted above, we presume the trial court’s order is correct and, based on the record before us, no error has been shown. Thus, we conclude to the extent the trial court exercised jurisdiction over Gonong, it did so properly.

d. Remaining Arguments Forfeited

Appellants also argue the doctrine of judicial estoppel prevents Agatep from claiming he should be FACLA president and the FACLA bylaws do not provide for succession in the event of a vacancy in the presidency. Because it does not appear appellants raised either of these arguments before the trial court, we decline to address them for the first time on appeal. (In re Campbell (2017) 11 Cal.App.5th 742, 757.)

DISPOSITION

Marc Caratao is dismissed as a party to this appeal.

The December 10, 2018 order is affirmed.

Veronico Agatep is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3), (5).)

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.