Filed 4/10/15 Dorshow v. Donne CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


JAMES E. DOROSHOW,                                                    B249518

         Plaintiff and Appellant,                                     (Los Angeles County
                                                                      Super. Ct. No. LC096561)
         v.

CHARLES DELLE DONNE et al.,

         Defendants and Respondents



         APPEAL from judgment of the Superior Court of Los Angeles County,
Maria E. Stratton, Judge. Reversed.


         James E. Doroshow, in pro. per., for Plaintiff and Appellant.


         Lightgabler LLP, Jonathan Fraser Light and Glenn J. Dickinson for Defendants
and Respondents.
                                            _____________________
                                    INTRODUCTION
       Plaintiff James Doroshow appeals from a summary judgment in favor of
Defendants Charles Delle Donne et al. Defendants are individual members of a private
country club (the Club), who served on the Club’s board of directors and/or rules
committee. Plaintiff sued Defendants for defamation and damages allegedly caused by
his expulsion from the Club.
       The trial court granted Defendants’ motion for summary judgment based largely
on the finding that the process for expelling Plaintiff from the Club “does not have to be
perfect; it has to be fair and the court finds that it was.” Because the court’s finding
purports to resolve disputed issues of material fact, it cannot support summary judgment.
We therefore reverse.
                   FACTS1 AND PROCEDURAL BACKGROUND
       Plaintiff joined the Club in 2006, after paying $100,000 for a “full equity
membership.” In his membership application, Plaintiff agreed to abide by the Club’s by-
laws, rules and regulations.
       The Club’s by-laws authorize the rules committee to “investigate written
complaints concerning the conduct of any member . . . and to take action thereon, and/or
report to the Board of Directors its findings and recommendations as to disciplinary
action.” If a member disagrees with the committee’s decision to impose a sanction, the
member has the right to appeal the matter to the board of directors. In such cases, the
Club’s by-laws require the board to conduct “a full hearing de novo as to all relevant
matters,” after providing at least 10 days written notice to the member.




1
        We draw the undisputed material facts from the parties’ separate statements.
Where a genuine factual dispute exists, we state the evidence admitted by the trial court
in the light most favorable to Plaintiff, as the nonmoving party, in accordance with the
standard of review applicable to summary judgments. (See Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)


                                              2
       While the rules committee has authority to investigate complaints and impose
certain penalties, the Club’s by-laws vest the board of directors with the sole authority to
expel members. Grounds for expulsion include, “A material violation of the By-Laws,
House Rules or Policies of the Club” or “Any conduct which is detrimental to the
welfare, interest, character or reputation of the Club.”
       Three alleged rule violations preceded Plaintiff’s expulsion from the Club. In July
2011, Plaintiff was involved in an altercation with another member, Drew Grey. The
incident began on the golf course and spilled over to the Club patio, where Grey
continued to verbally assault Plaintiff and his guests while they dined. After repeatedly
asking Grey to stop, Plaintiff momentarily held Grey against a wall with his hand on
Grey’s chest. Grey filed a complaint with the Club, which the rules committee
investigated. After completing its investigation, the committee notified Plaintiff that it
would hold a hearing concerning the alleged incident. The committee did not provide
Plaintiff with a copy of Grey’s written complaint. Plaintiff nevertheless attended the
hearing and had an opportunity to present evidence. Both Plaintiff and Grey received 90-
day suspensions for the incident.
       Following the Grey incident, Defendants took a secret vote to expel Plaintiff from
the Club. At the time, Defendants concluded they did not have “a sufficient ‘paper
record’ ” to take the desired action. Plaintiff maintains Defendants thereafter conspired
to “fabricate reasons” to justify his expulsion.
       In December 2011, another member, Michael Prince, submitted a written
complaint to the rules committee alleging that Plaintiff intentionally hit a golf ball in his
direction, endangering his personal safety. Plaintiff and other members stated Prince hit
an errant shot from the fourth fairway onto the fifth fairway where Plaintiff and his group
were playing. Before Plaintiff saw Prince, who was several hundred yards away
attempting to retrieve his ball, Plaintiff hit a shot from the fifth tee. Though Plaintiff had
no intention of endangering Prince, Plaintiff’s shot landed near him.




                                              3
        The committee investigated the incident, interviewed witnesses and reviewed
Plaintiff’s written statement concerning the matter. The committee then notified Plaintiff
that it had scheduled a hearing to address Prince’s complaint. Plaintiff did not receive a
copy of Prince’s written complaint in advance of the hearing.
        Despite notifying Plaintiff that the hearing would be limited to the Prince incident,
the rules committee also questioned Plaintiff concerning his alleged violations of the
Club’s rules regarding the use of cell phones. Plaintiff explained to the committee that,
due to the recent untimely death of his wife, the Club’s general manager had given him
permission to use his cell phone in emergencies to speak with his children.
Notwithstanding the accommodation, and Plaintiff’s subsequent showing that the
triggering phone call had been from his son concerning a car accident, the committee
suspended Plaintiff for a total of 120 days for the Prince incident and cell phone
violations.
        On January 17, 2012, the rules committee submitted a memorandum to the board
of directors detailing the foregoing rule violations and recommending Plaintiff’s
expulsion from the Club. Plaintiff received a copy of the memorandum and written
notice that the board would consider his expulsion at a subsequent hearing. The notice
advised Plaintiff that he was “invited to appear [at the hearing] to present any evidence or
reasons as to why [he] should not be expelled.”
        In advance of the hearing, Plaintiff submitted a written statement and petition by
several Club members opposing his expulsion. In communications preceding the
hearing, Defendants called Plaintiff a “liar” and referred to him as a “poster boy” for cell
phone violations, notwithstanding the accommodation the Club’s general manager had
granted to Plaintiff.
        The board of directors held the scheduled hearing on January 26, 2012. The board
accepted the rules committee’s recommendation and approved Plaintiff’s expulsion by a
vote of 11-to-0, with one abstention. Following Plaintiff’s expulsion, the Club sold his
membership at a reduced price and remitted $10,000 to Plaintiff from the proceeds of the
sale.


                                              4
       Plaintiff’s suspensions and ultimate expulsion represented much harsher
punishments than those imposed on other Club members for similarly dangerous conduct.
For instance, in 2011, Club members David and Martin Hamburger deliberately struck a
golf ball at another member’s wife. Despite their deliberately dangerous conduct, David
Hamburger received only the minimum 30-day suspension and Martin received no
punishment. Plaintiff later learned the Hamburgers had made charitable financial
contributions to an organization honoring Defendant Donne, and Donne had ensured they
received favorable treatment from the other Defendants on the rules committee and board
of directors so as not to “hurt his ‘friends.’ ”
       On March 26, 2012, Plaintiff filed his initial complaint for conversion,
defamation, and intentional infliction of emotional distress. In his operative first
amended complaint, Plaintiff added five new causes of action for trespass to personal
property, negligence, intentional interference with contractual relations, negligent
interference with contractual relations, and negligent infliction of emotional distress.
With the exception of the defamation claim, each cause of action alleged Defendants
wrongfully expelled Plaintiff from the Club, resulting in damages that included the loss
of Plaintiff’s $100,000 membership fee. As for defamation, Plaintiff alleged Defendants
maliciously called him a “liar” in an effort to harm his reputation with other members of
the Club.
       The trial court granted Defendants’ motion for summary judgment. Relying
principally on cases concerning the common law right to fair process (see fn. 10, post),
the court reasoned that its role in assessing whether Plaintiff was entitled to damages for
his expulsion was limited to determining (1) whether “the procedure followed by the
association is fair,” and (2) whether the “expulsion rests upon a rule which is
substantively capricious or contrary to public policy.” After reviewing the evidence
presented in connection with the motion, and acknowledging several disputed issues
raised by Plaintiff concerning the procedural fairness of the expulsion process, the trial
court granted summary judgment, concluding: “The process does not have to be perfect;
it has to be fair and the court finds that it was.”


                                                   5
                                      DISCUSSION
       1.     The Exhaustion of Judicial Remedies Doctrine and the Effect of
              Defendants’ Waiver
       Before we address the trial court’s summary judgment ruling, we must briefly
discuss an issue this court raised after Plaintiff filed his appeal from the judgment. Upon
reviewing the appellate record, including the parties’ separate statements of undisputed
facts, we gave the parties notice that this court was considering affirming the summary
judgment on a ground not relied upon by the trial court. In accordance with Code of
Civil Procedure2 section 437c, subdivision (m)(2), we invited the parties to file
supplemental briefs addressing the following issue:
              “Is [Plaintiff’s] complaint for damages in the [instant] action
              premature under the exhaustion of judicial remedies doctrine
              announced by the Supreme Court in Westlake Community Hosp.
              v. Superior Court (1976) 17 Cal.3d 465, 482-485 [(Westlake)]?
              (See also Holder v. California Paralyzed Veterans Assn. (1980)
              114 Cal.App.3d 155 [(Holder)]; Gupta v. Stanford University
              (2004) 124 Cal.App.4th 407 [(Gupta)].)”
       In response to our notice, Plaintiff conceded the instant action was premature.
Under the exhaustion of judicial remedies doctrine, Plaintiff acknowledged he could not
bring an action for damages allegedly caused by his expulsion unless he first obtained a
writ of mandate overturning the board of directors’ decision.




2
      Subsequent statutory references are to the Code of Civil Procedure, unless
otherwise designated.


                                             6
       Notwithstanding Plaintiff’s concession, Defendants argued we should not affirm
the summary judgment on this alternate basis. Defendants maintained they knowingly
waived the doctrine for strategic reasons and that the trial court’s stated rationale
provided an adequate basis to affirm the summary judgment.3
       Because it impacts our review of the trial court’s summary judgment ruling, we
must briefly address the exhaustion of judicial remedies doctrine and the effect of
Defendants’ waiver. The rule is settled that when a private association reaches the
decision to expel a member through a quasi-judicial process, the member may not bring
an action for damages caused by the alleged wrongful expulsion, unless the member first
succeeds in overturning the association’s decision in a mandamus proceeding. (Westlake,
supra, 17 Cal.3d at p. 484.) This rule, sometimes referred to as the exhaustion of judicial
remedies doctrine, accords a proper respect to an association’s quasi-judicial procedure,
while mandating a uniform practice of judicial, rather than jury, review of quasi-judicial
decisions. (Ibid.) The consequence of the rule is to recognize that so long as the
association’s quasi-judicial decision is not set aside through appropriate review
procedures, the decision has the effect of establishing the propriety of the association’s
action, and no claim for damages can be maintained. (Ibid.)
       In Westlake, the plaintiff, Dr. Kaiman, sued Westlake Community Hospital and
numerous individual members of the hospital’s board and committees after the hospital
revoked her staff privileges. (Westlake, supra, 17 Cal.3d at p. 469.) Her complaint
alleged the revocation stemmed from a malicious conspiracy engineered by the named
defendants to destroy her medical practice, restrain competition, and intentionally inflict
emotional distress upon her. (Id. at p. 470.) Kaiman further alleged that “the revocation
of her privileges at Westlake ‘was pursued and perfected in a manner contrary to


3
       With their supplemental brief, Defendants filed a motion to augment the record to
include an email sent by Plaintiff advising Defendants’ counsel of his intention to file a
mandamus petition against the Club. Because the email is not a “document filed or
lodged in the case in superior court” (Cal. Rules of Court, rule 8.155(a)(1)), we deny the
motion to augment.


                                              7
established principles of fairness and justice,’ and contrary to Westlake’s own bylaws and
constitution.” (Ibid.)
       The Westlake defendants moved for summary judgment. The supporting
affidavits showed the hospital’s credentials committee recommended the revocation of
Kaiman’s staff privileges, after which the hospital notified Kaiman of the decision and of
her right to request a hearing before a judicial review committee. (Westlake, supra,
17 Cal.3d at pp. 471-472.) Kaiman requested a hearing, at which she called witnesses
and introduced documentary evidence. After the hearing, the hospital informed Kaiman
that the judicial review committee had determined her staff privileges should be revoked
and advised Kaiman of her right to appeal the decision to the hospital’s board of
directors. Kaiman appeared before the board and presented her objections, after which
the board affirmed the judicial review committee’s decision. (Ibid.)
       The Westlake defendants asserted the foregoing facts conclusively established the
invalidity of Kaiman’s suit. Among other things, the defendants argued Kaiman “could
not ‘collaterally attack’ the hospital’s revocation decision by a tort action, but could only
seek damages after she had succeeded in a ‘direct attack’ on the quasi-judicial hospital
decision in a mandamus proceeding.” (Westlake, supra, 17 Cal.3d at p. 473.) The trial
court denied the defendants’ summary judgment motion. (Ibid.) The Supreme Court
reversed.
       The Supreme Court concluded Kaiman’s tort action against the hospital and
individual board and committee members was “premature” because Kaiman “did not
challenge the revocation through a mandamus proceeding.” (Westlake, supra, 17 Cal.3d
at p. 485.) The high court analogized this condition to a comparable requirement in
malicious prosecution actions, which can only be maintained after the allegedly
maliciously initiated proceeding has terminated favorably for the plaintiff. (Id. at p. 483.)
Though acknowledging the distinctions “between public and private administrative
proceedings,” the court concluded that the “general policy underlying the ‘favorable
termination’ requirement in malicious prosecution actions applies in the present context.”
(Id. at pp. 483-484.) The court explained: “As in a malicious prosecution action,


                                              8
plaintiff’s position rests on a contention that defendants intentionally and maliciously
misused a quasi-judicial procedure in order to injure her; such a claim is necessarily
premised on an assertion that the hospital’s decision to revoke plaintiff’s privileges was
itself erroneous and unjustified. Although a quasi-judicial decision reached by a tribunal
of a private association may not be entitled to exactly the same measure of respect as a
similar decision of a duly constituted public agency [citation], we believe that so long as
such a quasi-judicial decision is not set aside through appropriate review procedures the
decision has the effect of establishing the propriety of the hospital’s action. [Citation.]
Accordingly, we conclude that plaintiff must first succeed in overturning the quasi-
judicial action before pursuing her tort claim against defendants.”4 (Id. at p. 484.)
       The Westlake court also identified important policy considerations that are
advanced by requiring mandamus review before permitting an action for damages:
“In our view, the above requirement accords a proper respect to an association’s quasi-
judicial procedure, precluding an aggrieved party from circumventing the established
avenue of mandamus review. In addition, this result will simplify court procedures by
providing a uniform practice of judicial, rather than jury, review of quasi-judicial
administrative decisions.” (Westlake, supra, 17 Cal.3d at p. 484, citing § 1094.5.)
Finally, the court observed, “this procedure affords a justified measure of protection to

4
        The Court of Appeal in Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d
235 (Knickerbocker) identified a related doctrinal underpinning for the exhaustion of
judicial remedies requirement announced in Westlake—namely, collateral estoppel. The
doctrine of collateral estoppel, the Knickerbocker court explained, “bars the relitigating
of issues which were previously resolved in an administrative hearing by an agency
acting in a judicial capacity.” (Knickerbocker, at p. 242.) The exhaustion of judicial
remedies requirement accords with this principle insofar as it recognizes that “[u]nless
the administrative decision is challenged, it binds the parties on the issues litigated and if
those issues are fatal to a civil suit, the plaintiff cannot state a viable cause of action.”
(Id. at p. 243.) Our Supreme Court has since likewise recognized that “[e]xhaustion of
judicial remedies . . . is necessary to avoid giving binding ‘effect to the administrative
agency’s decision, because that decision has achieved finality due to the aggrieved
party’s failure to pursue the exclusive judicial remedy for reviewing administrative
action.’ ” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70 (Johnson), italics
omitted.)


                                              9
the individuals who take on, often without remuneration, the difficult, time-consuming
and socially important task of policing medical personnel,” yet remain potentially subject
to liability should the court determine “in a mandamus proceeding that an association’s
quasi-judicial decision cannot stand, either because of a substantive or procedural
defect.”5 (Westlake, at p. 484.)
       As Plaintiff implicitly acknowledged in his response to this court’s notice, the
material undisputed facts in the instant case are on all fours with the facts and reasoning
of Westlake. In his separate statement of undisputed facts and declaration in opposition
to Defendants’ summary judgment motion, Plaintiff admitted or did not materially
dispute the following: (1) the rules committee notified Plaintiff that other members had
filed written complaints concerning his alleged rule violations; (2) the committee
interviewed witnesses and investigated the alleged violations; (3) the committee held
hearings concerning the alleged violations, at which Plaintiff was allowed to present
evidence and explain his conduct; (4) following the investigations and hearings, the
committee submitted a memorandum to the Club’s board of directors detailing the
committee’s findings and recommending Plaintiff’s expulsion; (5) Plaintiff received a
copy of the committee’s memorandum and was notified of his opportunity to present
evidence and argument at a hearing before the board; (6) Plaintiff submitted a written


5
        This policy rationale is not limited to the hospital privileges at issue in Westlake.
As the Court of Appeal explained in Holder, supra, 114 Cal.App.3d 155, the exhaustion
principle is applicable in all contexts in which a private association’s quasi-judicial
decision is asserted as the basis for a damages action: “The policy factors referred to [in
Westlake] . . . have like application to unincorporated associations generally. They
generally have quasi-judicial bodies acting ‘often without remuneration’ who have no
absolute privilege in respect of their important task of protecting the association from the
acts of members or officers inimical to their objectives. We, therefore, see no reason to
accord less respect to the quasi-judicial decisions of a voluntary association of veterans
than to such decisions of a hospital association. Both should establish the propriety of the
action taken until overturned by appropriate mandamus proceedings.” (Holder, at p. 165;
see also Gupta, supra, 124 Cal.App.4th at p. 411 [exhaustion of judicial remedies
doctrine applies to tort and contract action by student based on disciplinary action taken
by private university after evidentiary hearing].)


                                             10
statement and petition by several Club members opposing his expulsion; and, (7) at the
noticed hearing, the board voted in favor of expelling Plaintiff from the Club.6 Because it
is undisputed that the vote to expel Plaintiff resulted from a quasi-judicial
decision-making process and Plaintiff has not successfully overturned the board’s
decision in a mandamus action, his suit against Defendants for damages allegedly caused
by the expulsion is premature. (Westlake, supra, 17 Cal.3d at p. 484.)
       Be that as it may, as Defendants argued in their supplemental brief, the exhaustion
of judicial remedies doctrine is not jurisdictional and may be waived by parties who are
otherwise entitled to its protection. (Johnson, supra, 24 Cal.4th at p. 70 [while
exhaustion of administrative remedies is “ ‘a jurisdictional prerequisite to resort to the
courts[,]’ ” “[e]xhaustion of judicial remedies, on the other hand, is necessary to avoid
giving binding ‘effect to the administrative agency’s decision’ ”]; Knickerbocker, supra,
199 Cal.App.3d at p. 241 [overturning an administrative decision in mandamus action is
not a “jurisdictional prerequisite to filing a tort action for damages in all cases”].) In
Defendants’ supplemental brief and at oral argument, defense counsel emphatically
maintained that Defendants had knowingly waived the exhaustion of judicial remedies
requirement for strategic reasons. In view of this representation, we will not interpose a
defense that Defendants and their counsel have knowingly decided to waive.




6
        Though Plaintiff disputed whether the Club conducted the disciplinary
proceedings in accordance with fundamental due process, alleged procedural defects do
not remove a quasi-judicial decision from the Westlake doctrine. (See Holder, supra,
114 Cal.App.3d at p. 164 [observing an alleged procedural defect is a common ground
for issuing a writ of mandate invalidating a quasi-judicial decision, and Westlake
identified this as a basis for obtaining favorable termination in a mandamus action].)
Indeed, as the Holder court explained, the existence of an alleged procedural defect
“makes even more appropriate the ‘uniform practice of judicial, rather than jury, review
of quasi-judicial administrative decisions’ [citation], the preservation of which appears to
be a major basis for the Westlake doctrine.” (Holder, at p. 164.)


                                              11
       We must nevertheless determine what effect Defendants’ waiver has on the instant
proceedings. As discussed, the exhaustion of judicial remedies doctrine provides that
“unless a party to a quasi-judicial proceeding challenges the agency’s adverse findings
made in that proceeding, by means of a mandate action in superior court, those findings
are binding in later civil actions.” (Johnson, supra, 24 Cal.4th at pp. 69-70, citing
Westlake, supra, 17 Cal.3d 465.) By requiring a successful challenge to the decision
under the standards for obtaining mandamus relief set forth in section 1094.5, the
requirement “accord[s] a proper respect to an association’s quasi-judicial procedure,
precluding an aggrieved party from circumventing the established avenue of mandamus
review.”7 (Westlake, supra, 17 Cal.3d at p. 484, citing § 1094.5.) It follows that the
effect of Defendants’ waiver is to forego these protections and permit Plaintiff’s damages
action to proceed under the tort theories alleged in the complaint, without requiring
Plaintiff to first successfully challenge the board’s decision against the deferential
standard employed in mandamus proceedings (see fn. 7, ante). We must therefore review
the trial court’s decision under the standard applicable to summary judgments in ordinary
civil actions.

7
        Under section 1094.5, the superior court’s inquiry in determining whether a quasi-
judicial decision was proper is limited to “the questions whether the respondent has
proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and
whether there was any prejudicial abuse of discretion.” (§ 1094.5, subd. (b).) “Abuse of
discretion is established if the respondent has not proceeded in the manner required by
law, the order or decision is not supported by the findings, or the findings are not
supported by the evidence.” (Ibid.) In a case that does not concern vested rights, like the
instant one, “[w]here it is claimed that the findings are not supported by the evidence, . . .
abuse of discretion is established if the court determines that the findings are not
supported by substantial evidence in the light of the whole record.” (Id., subd. (c).) In
sum, so long as the quasi-judicial process was fair and the decision was supported by
substantial evidence, the decision will not be overturned and, under the exhaustion of
judicial remedies doctrine, the plaintiff will be barred from asserting damages claims that
conflict with the decision or its implicit findings. (Westlake, supra, 17 Cal.3d at p. 484;
see, e.g., Johnson, supra, 24 Cal.4th at p. 76 [“when, as here, a public employee pursues
administrative civil service remedies, receives an adverse finding, and fails to have the
finding set aside through judicial review procedures, the adverse finding is binding on
discrimination claims under the FEHA”].)


                                              12
       2.     Plaintiff’s Evidence Raised Triable Issues Concerning the Wrongfulness of
              His Expulsion
       “On appeal after a motion for summary judgment has been granted, we review the
record de novo, considering all the evidence set forth in the moving and opposition
papers except that to which objections have been made and sustained.” (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 334.) We “ ‘consider all of the evidence’ and ‘all’
of the ‘inferences’ reasonably drawn therefrom [citation], and must view such evidence
[citations] and such inferences [citations], in the light most favorable to the opposing
party.” (Aguilar, supra, 25 Cal.4th at p. 843.) We make “an independent assessment of
the correctness of the trial court’s ruling, applying the same legal standard as the trial
court in determining whether there are any genuine issues of material fact or whether the
moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified
School Dist. (1995) 32 Cal.App.4th 218, 222.)
       A defendant is entitled to summary judgment upon a showing that the plaintiff’s
action has no merit. (§ 437c, subd. (a).) The defendant meets this burden with respect to
each cause of action by establishing undisputed facts that negate one or more elements of
the claim or state a complete defense to the cause of action. (Id., subd. (p)(2); Romano v.
Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487.) Once the defendant has made such
a showing, the burden shifts to the plaintiff to show that a triable issue of material fact
exists as to the cause of action or defense. (Aguilar, supra, 25 Cal.4th at pp. 849, 853.)
“[F]rom commencement to conclusion, the party moving for summary judgment bears
the burden of persuasion that there is no triable issue of material fact and that he is
entitled to judgment as a matter of law.” (Id. at p. 850.)




                                              13
       In moving for summary judgment, Defendants introduced evidence concerning
Plaintiff’s alleged rule infractions and the quasi-judicial process that culminated in his
expulsion. Based on this evidence, Defendants argued the decision to expel Plaintiff was
not arbitrary, the process employed was indisputably fair, and Plaintiff could not establish
tortious conduct under any theory asserted in the complaint.8
       Plaintiff opposed the motion with competing evidence challenging the fairness of
the process. Among other things, Plaintiff’s declaration asserted that he had no
opportunity to review the written complaints lodged by Grey or Prince in advance of the
disciplinary hearings, nor had he received notice that his alleged cell phone use would be
raised at the hearing or incorporated into the rules committee’s expulsion
recommendation. Plaintiff also disputed the procedural fairness of the hearing that
preceded the board of directors’ vote to expel him. In that regard, he presented evidence
suggesting, among other things, that the board did not review his written response to the
rules committee’s recommendation before voting for his expulsion.
       Plaintiff also introduced evidence to dispute the factual basis for the expulsion.
That evidence consisted mainly of his declaration, wherein Plaintiff recounted his version
of the events underlying the purported rule infractions. Plaintiff argued the evidence,
when viewed in the light most favorable to him as the non-moving party, did not support
the committee’s findings concerning his alleged rule infractions, nor the board’s decision
to expel him from the Club based on those supposed infractions.




8
        Defendants advanced alternative arguments in moving for summary adjudication
of the interference with contract and defamation claims. We address these claims below
in the margin. (See fn. 9, post.)


                                             14
       The trial court granted summary judgment, ruling Plaintiff’s claims were deficient
because “Defendants’ actions were not wrongful.”9 The court predicated its ruling on
two erroneous conclusions that cannot be squared with the summary judgment standard.

9
        The trial court offered alternative rationales in granting Defendants summary
adjudication on Plaintiff’s interference with contract and defamation claims. With
respect to interference, the court concluded Plaintiff could not maintain a claim for
interference with contractual relations because Defendants acted as “agents of the party to
the contract, the Club” and “[p]arties to the contract cannot be sued for interference with
contractual relations.” (See Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990)
50 Cal.3d 1118, 1126.) However, as Plaintiff points out, when the evidence is viewed in
the light most favorable to him as the non-moving party, triable issues exist as to whether
Defendants were acting in the Club’s interest, as its agents, or out of personal malice
toward Plaintiff, with the intention to deprive him of his contractual membership interest.
(See, e.g., Huynh v. Vu (2003) 111 Cal.App.4th 1183, 1198 [“when a manager stood to
reap a tangible personal benefit from the principal’s breach of contract, so that it is at
least reasonably possible that the manager acted out of self-interest rather than in the
interest of the principal, the manager should not enjoy the protection of the manager’s
privilege unless the trier of fact concludes that the manager’s predominant motive was to
benefit the principal”].) For instance, in addition to the evidence contesting the fairness
of the proceedings and the factual basis for Defendants’ disciplinary actions, Plaintiff
introduced evidence suggesting other Club members, such as the Hamburger family,
received more lenient punishments for arguably more egregious and dangerous conduct.
The evidence suggested this disparate treatment was due in part to friendships such
members had with Defendants, as well as charitable financial contributions the
Hamburgers made to an organization honoring Defendant Donne.

         As for the defamation claim, the trial court concluded there was no evidence of a
published written statement constituting libel and any allegedly slanderous statements
were “privileged under Civil Code section 47[, subdivision] (c) as they were made during
the course of the investigation and decision making process.” A communication to a
“person interested therein” is privileged under section 47 only if it is made “without
malice.” (Civ. Code, § 47, subd. (c); Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d
711, 723, fn. 7 [“if malice is shown, the privilege is not merely overcome; it never arises
in the first instance”].) As Plaintiff argues, the evidence of Defendants’ allegedly unfair
conduct in the disciplinary proceedings, coupled with their statements that Plaintiff was a
“liar” and had violated the Club rules concerning cell phone use, could support a finding
of malice in this case. (See White v. State of California (1971) 17 Cal.App.3d 621, 629
[“ ‘ “[Malice is] a desire or disposition to injure another founded upon spite or ill
will. . . .” . . . Malice may also be implied if the defamatory remarks, although honestly
believed to be true, are ‘exaggerated, overdrawn, or colored to the detriment of plaintiff,
or are not stated fully and fairly with respect to the plaintiff, . . .’ ”].) Accordingly,

                                            15
         First, with regard to the committee’s findings and the board’s decision, the trial
court stated, “The court is not required to evaluate the merits of a member’s expulsion.”
This is true when a private association’s decision collaterally estops the member from
relitigating issues adversely decided against him in the underlying quasi-judicial
disciplinary proceeding under the exhaustion of judicial remedies doctrine. (Westlake,
supra, 17 Cal.3d at p. 484; Johnson, supra, 24 Cal.4th at pp. 69-70; Knickerbocker,
supra, 199 Cal.App.3d at p. 244.) Where the doctrine’s protections are invoked, the
court’s role in assessing a challenge to the sufficiency of the evidence is limited to
determining whether there is any substantial evidence, disputed or undisputed, supporting
the adjudicatory body’s decision. (§ 1094.5, subd. (c).) But here, Defendants knowingly
waived the doctrine’s protections. Thus, the board’s decision does not collaterally estop
Plaintiff from opposing summary judgment on the ground that the committee’s findings
were erroneous or pretextual in view of the conflicting evidence he introduced
concerning his alleged rule infractions.
         Second, with regard to the conflicting evidence concerning the procedural fairness
of the disciplinary process, the trial court concluded, “The process does not have to be
perfect; it has to be fair and the court finds that it was.” This finding may well have been
correct had the trial court been assessing the validity of the board’s decision under the
standard set forth in section 1094.5. However, insofar as Plaintiff’s tort claims are
premised on the theory that Defendants used the disciplinary proceedings as a pretext to
wrongfully convert his membership interest and inflict emotional distress, his evidence,
when assessed in accordance with the standards governing summary judgment, raises
triable issues of fact. As Defendants waived the deferential treatment that would
otherwise be accorded to the board’s decision (see Westlake, supra, 17 Cal.3d at p. 484),
the trial court’s factual finding concerning the fairness of the disciplinary process was
error.


disputed issues exist as to whether Defendant’s allegedly defamatory statements were
privileged under Civil Code section 47, subdivision (c).


                                               16
       The trial court’s error stems in part from its reliance on the following statement
from Budwin v. American Psychological Assn. (1994) 24 Cal.App.4th 875, 879: “When a
voluntary association disciplines one of its members, ‘. . . the only function which the
courts may perform is to determine whether the association has acted within its powers in
good faith, in accordance with its laws and the law of the land.’ ” This statement is
inapposite because it reflects the fact that Budwin, unlike the instant case, was a writ of
mandate proceeding, as was the Supreme Court case Budwin relied upon—Smith v. Kern
County Medical Assn. (1942) 19 Cal.2d 263. (See Budwin, at p. 879 [decision by private,
voluntary association of psychologists to censure member properly subject to judicial
review by petition for writ of mandate]; Smith, at p. 268 [petition for writ of mandate
challenging expulsion from medical society properly dismissed where “[t]he procedure
provided by the rules of the society was followed and the petitioner was accorded every
opportunity to defend himself”]; see also Smetherham v. Laundry Workers’ Union (1941)
44 Cal.App.2d 131, 135 [“Mandamus is a proper proceeding by means of which to
compel the reinstatement to membership of one who has been illegally expelled from a
duly organized association”].) The rule stated in Budwin is consistent with the deferential
treatment accorded to a private association’s disciplinary decision in a mandamus action.
And, as we have explained, this deferential treatment was a key policy basis for the
exhaustion of judicial remedies doctrine announced in Westlake. However, in view of
Defendants’ waiver, the Budwin court’s statement concerning the court’s limited function
in a mandamus proceeding has no application to Plaintiff’s tort claims in the instant case.
       The other cases cited in the trial court’s statement of decision address the contours
of the common law right to fair procedure and when that right can be invoked to set aside
an expulsion or other disciplinary action by a private association. (See Potvin v. Metro.
Life Ins. Co. (2000) 22 Cal.4th 1060 (Potvin); Pinsker v. Pac. Coast Soc. of Orthodontists
(1974) 12 Cal.3d 541 (Pinsker); Kim v. Southern Sierra Council Boy Scouts of America
(2004) 117 Cal.App.4th 743 (Kim); Youngblood v. Wilcox (1989) 207 Cal.App.3d 1368




                                             17
(Youngblood).)10 These cases are inapposite. In view of Defendants’ waiver, Plaintiff
has no need to invoke the common law right to fair procedure to set aside the board’s
decision; rather, he can simply proceed with his damages action on the tort theories
asserted in his complaint.




10
        Critically, these cases either exclusively concerned whether the right to fair
procedure applied to the challenged decision (see, e.g., Potvin, supra, 22 Cal.4th at
pp. 1071, 1072 [right applies when decision affects “an important, substantial economic
interest”]; Kim, supra, 117 Cal.App.4th at p. 746 [right does not apply to the decision
whether a member of the Boy Scouts should be promoted to the rank of Eagle Scout]), or
dealt with a decision that undisputedly had been reached without affording the plaintiff
fair process (see, e.g., Pinsker, supra, 12 Cal.3d at p. 547 [plaintiff was afforded no
opportunity “either to appear in person or submit a written statement on his own behalf”
before membership application to orthodontists’ society was denied]; Youngblood, supra,
207 Cal.App.3d at pp. 1371-1372 [plaintiffs’ lifetime membership in country club
terminated without notice or opportunity to be heard].) Thus, while these cases
recognized that “when the right to fair procedure applies, the decisionmaking ‘must be
both substantively rational and procedurally fair’ ” (Potvin, at p. 1066), none considered
how the standard should be applied or the deference that should be accorded to the
association’s decision in adjudicating a challenge based on the common law right to fair
procedure. Our Supreme Court answered that question in Westlake, where it held a
challenge to an association’s quasi-judicial decision based on a “substantive or
procedural defect” must be raised in a mandamus action to ensure the decision is
accorded the proper deference and to protect the decision-makers charged with the
important task of governing private associations. (Westlake, supra, 17 Cal.3d at p. 484;
Holder, supra, 114 Cal.App.3d at p. 164)


                                            18
                                    DISPOSITION
      The summary judgment is reversed. Plaintiff is entitled to costs.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                KITCHING, Acting P. J.
We concur:




                    ALDRICH, J.




                    LAVIN, J. *




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                           19
