Filed 12/18/15 St. Mark Baptist Church of Pittsburg v. St. Mark at Bethel Missionary Baptist Church CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


ST. MARK BAPTIST CHURCH OF
PITTSBURG,
         Plaintiff and Appellant,                                    A139811

v.                                                                   (Contra Costa County
SAINT MARK AT BETHEL                                                 Super. Ct. No. C12-02083)
MISSIONARY BAPTIST CHURCH,
         Defendant and Respondent.


         In this dispute over the control of church property, the trial court resolved two
pretrial motions against plaintiff and appellant St. Mark Baptist Church of Pittsburg (St.
Mark Pittsburg). The court first granted a motion by defendant Saint Mark at Bethel
Missionary Baptist Church (St. Mark at Bethel) to expunge a lis pendens plaintiff had
recorded against the property. It secondly denied a motion by plaintiff for a preliminary
injunction prohibiting sale of the property. Both rulings are grounded on the trial court’s
determination that plaintiff failed to establish that the individuals purporting to act on its
behalf had the authority to do so. We conclude this determination is supported by
substantial evidence and the trial court did not abuse its discretion in granting the motion
to expunge or in denying preliminary injunctive relief.
                                                   BACKGROUND
         More than 50 years ago, St. Mark Pittsburg acquired property at 908 Carpino
Avenue. In the 1980’s, some church members left and founded New Bethel Missionary

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Baptist Church of Pittsburg (New Bethel). New Bethel acquired its own property at 360
Central Avenue.
      Around 2010, the two churches discussed merging and once again becoming a
single church. St. Mark Pittsburg was represented in these discussions by, among others,
Lawrence Thomas, LaShon Craig, Julius Jones, and Bertha Gosha. New Bethel was
represented by, among others, Frances Greene and Kimberly Payton.
      A June 14, 2010, agreement states the two churches “agree to merge and become a
new separate church organization” and specifies the details of the merger would be
“developed and agreed on jointly at a later date.” Undescribed “personal funds” loaned
to New Bethel were to be repaid, and Pastor McNab, from St. Mark Pittsburg, would be
pastor of the new church. Representatives of St. Mark Pittsburg, including Thomas,
Jones, and Gosha, and of New Bethel, including Greene and Payton, signed the
agreement, as did McNab.
      The new church operated from the Central Avenue location and did not use the
Carpino Avenue property. It took the name St. Mark at Bethel and filed bylaws with the
Secretary of State on July 29, 2010. According to Payton (originally from New Bethel),
she and the other remaining trustees of St. Mark Pittsburg and New Bethel became the
trustees of the new church. A new bank account was opened. But debts were kept in the
names of the original church corporations while waiting for the new church to exist long
enough to qualify to assume the loans. Pastor McNab was paid by the new church.
      Four months after the merger agreement, in October 2010, the new church
obtained a loan for $166,000 secured by the Carpino Avenue property. Larry Thomas
and Julius Jones (both originally with St. Mark Pittsburg and who had participated in the
merger discussions and signed the June 2010 agreement to merge) signed for the loan for
the new church. Payton (formerly a member of New Bethel) avers she and the other
trustees of the new church, including Thomas and Jones, decided to obtain the loan. The
proceeds were put toward renovations of the Central Avenue Property.

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       In April 2011, the encumbered Carpino Avenue property was leased to Chapel
Churches. Paragraph 30 of the lease grants Chapel an option to purchase the property for
fair market value within 24 months and a first right of refusal if it remains a tenant
thereafter. If purchased, one-quarter of the rent paid will be credited towards the price.
Frances Greene (originally from New Bethel) signed the lease. The new church
thereafter collected the rent.
       Although the new, unified church acted as such for some time, disagreement arose
about whether the merger remained a good idea and whether McNab should be retained
as pastor, given accusations he was threatening toward church staff and over-protective
of his salary despite the serious financial debts of the new church. According to Payton
(originally from New Bethel), the trustees of the new church voted to terminate McNab
on July 8, 2012.
       On July 23, there was an “open meeting to vote whether it was feasible to remain”
at 360 Central or whether St. Mark Pittsburg should “return” to Carpino Avenue. The
contentious meeting was apparently led by two outside “moderators” who adhered to an
agenda of unknown origin and who had no clear understanding of which bylaws
governed the meeting. In fact, it is unclear from the meeting transcript which faction,
those supporting McNab or those supporting the unified church, called the meeting or
which church bylaws was governing.1 Members of both constituent churches were
present. McNab was also present and treated, at least by some attendees, as if he had not
been fired.
       What actually happened at the meeting is also unclear. According to the meeting
transcript, a “majority” voted to “leave” the unified church and to make plans to return to
Carpino Avenue. Who voted and whether they were originally from St. Mark Pittsburg


       1
         The meeting “transcript” was prepared from a tape recording of the meeting and
declared accurate by McNab.


                                              3
or New Bethel is unknown. Payton (originally with New Bethel) disputes the transcript,
asserts no vote was ever taken, and that McNab, the former pastor of St. Mark Pittsburg
and dismissed pastor of the unified church, simply declared he had decided to depart for
Carpino Avenue. Chantal Evans (originally from St. Mark Pittsburg) claims the decision
to part company was made by the unified church, not by the St. Mark Pittsburg/McNab
group.
         The following day, McNab wrote a letter resigning as pastor of the unified church
and stating he was returning to Carpino Avenue to once again lead the St. Mark Pittsburg
congregation. He could not, however, return to Carpino Avenue since it was being
leased, so he installed the new St. Mark Pittsburg group in a Seventh Day Adventist
church building. According to Payton (originally from New Bethel and who remained
with St. Mark at Bethel), perhaps less than five, and no more than 10, individuals
followed McNab and left the unified church. Evans (originally from St. Mark Pittsburg
and who left with McNab), admitted the group that left the unified church did not include
all the former members of St. Mark Pittsburg.
         The following month, in August 2012, the McNab/St. Mark Pittsburg group and
St. Mark at Bethel submitted a flurry of conflicting documents to the Secretary of State,
each hoping to stake out its claim to the St. Mark Pittsburg entity and, by extension, the
Carpino Avenue property.
         The McNab/St. Mark Pittsburg group filed ostensibly updated officer information
and articles of incorporation for St. Mark Pittsburg, naming McNab as CEO, Tiara Jones
as secretary, and Evans as CFO. None of these individuals had been previously
authorized to act on behalf of St. Mark Pittsburg. Nor were they ever authorized to act on
behalf of the unified church. Rather, they were named as officers of St. Mark Pittsburg
solely by the handful of individuals that followed McNab when he left the unified church.
         St. Mark at Bethel, in turn, submitted its own officer information statement
purportedly on behalf of St. Mark Pittsburg, listing different officers, namely Thomas

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(formerly with St. Mark Pittsburg and who had participated in the merger discussions,
signed the June 2010 agreement to merge, and signed for the loan for the new church) as
CEO, Payton (formerly with New Bethel) as secretary, and Greene (formerly with New
Bethel and who had signed the lease with Chapel Churches) as CFO. St Mark at Bethel
also filed certifications of the merger and a new “Agreement of Merger” signed by
purported representatives of St. Mark Pittsburg (Thomas as President and Bertha Gosha
as secretary) and purported representatives of St. Mark at Bethel (Greene and LaShon
Craig).2
         The lawyer representing the McNab/St. Mark Pittsburg group then contacted the
Secretary of State’s office, which, in light of the conflicting filings and technical
shortcomings in the merger submissions, rejected the merger documents for the time
being.
         The same month, St. Mark at Bethel recorded a grant deed evidencing a transfer
for $1 of the Carpino Avenue property to it from St. Mark Pittsburg, executed by Thomas
and Craig.
         During this time frame, the lawyer representing the McNab/St.Mark Pittsburg
group also contacted Chapel Churches and told it to stop sending rent to St. Mark at
Bethel. The lawyer representing St. Mark at Bethel, in turn, insisted rent checks should
continue to be sent to the unified church. There is apparently no dispute that St. Mark at
Bethel properly collected the rent prior to the departure of McNab and his followers.
         The McNab/St.Mark Pittsburg group never made any payments on the $166,000
loan taken out against the Carpino Avenue property.
         McNab and his followers, invoking the name of St. Mark Pittsburg, eventually
sued St. Mark at Bethel, Chapel Churches, and others. The verified first amended

         2
         Gosha’s signature of the merger documents is somewhat peculiar, because she
therein claimed to be secretary of St. Mark Pittsburg, while St. Mark at Bethel’s
documentation had identified Payton as secretary.


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complaint alleged 17 causes of action, which, at bottom, sought a ruling that St. Mark
Pittsburg, not the unified church, had owned and continued to own the Carpino Avenue
property.
       The McNab/St.Mark Pittsburg group also filed a lis pendens on the Carpino
Avenue property. St. Mark at Bethel moved to expunge it. The trial court, crediting St.
Mark at Bethel’s evidence over that of the McNab/St. Mark Pittsburg group, concluded
the group failed to establish the probable validity of its real property claims and expunged
the lis pendens.
       The McNab/St. Mark Pittsburg group then moved for a TRO and preliminary
injunction prohibiting sale of the Carpino Avenue property pending resolution of the
litigation. The trial court denied the motion “in light of the court’s ruling on” the
“motion to expunge lis pendens.”
       The McNab/St. Mark Pittsburg group sought writ relief from the expungement
order and appealed from the denial of its motion for a preliminary injunction. We
summarily denied the writ petition on the ground the lis pendens ruling could be
challenged in the pending appeal.3
                                        DISCUSSION
Lis Pendens
       “ ‘A lis pendens is a recorded document giving constructive notice that an action
has been filed affecting title to or right to possession of the real property described in the
notice.’ ” (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647 (Kirkeby).) “A lis


       3
          We deferred action on a request by the McNab/St. Mark Pittsburg group filed on
September 18, 2014, to augment the record with four documents, which we deemed to be
a request for judicial notice. We now deny that request because the documents are not
relevant to our disposition. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 418
[“a litigant must demonstrate that the matter as to which judicial notice is sought is both
relevant to and helpful toward resolving the matters before this court”].) We also deny
the request for judicial notice filed September 15, 2015.


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pendens may be filed by any party in an action who asserts a ‘real property claim,’ ” such
as one affecting title to or possession of specific real property. (Ibid., citing Code Civ.
Proc. §§ 405.20, 405.4)4 “Section 405.30 allows the property owner to remove an
improperly recorded lis pendens by bringing a motion to expunge.” (Kirkeby, at p. 647.)
       “There are several statutory bases for expungement of a lis pendens . . . .”
(Kirkeby, supra, 33 Cal.4th at p. 647.) First, a lis pendens shall be expunged if the
plaintiff has not properly pleaded a real property claim. (Ibid.; § 405.31.) Second, a lis
pendens shall be expunged if “the claimant has not established by a preponderance of the
evidence the probable validity of the real property claim.” (§ 405.32; see also Howard S.
Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 319 (Howard).)
Unlike most other motions, the nonmoving plaintiff bears the burden of demonstrating
the existence or probable validity of its claim. (Kirkeby, supra, 33 Cal.4th at p. 647.)
       The trial court granted expungement on the ground the McNab/St. Mark Pittsburg
group did not establish the probable validity of its real property claims. Because a
determination of probable validity under section 405.32 is closely related to an interim
determination of likelihood of success as part of the familiar preliminary injunction
inquiry, “we draw upon the standards applicable to the grant or denial of a preliminary
injunction” in reviewing an expungement order. (Howard, supra, 106 Cal.App.4th at
p. 320.) We review issues of law de novo, and we review factual findings for substantial
evidence. We do not reweigh conflicting evidence or reevaluate the trial court’s
determinations of witness credibility. (Ibid.)
       While both parties focus much of their attention on whether the merger between
St. Mark Pittsburg and New Bethel was ever actually completed, that is not the
determinative issue. Even assuming St. Mark Pittsburg has remained a separate corporate


       4
        All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.


                                              7
entity at all times, that means nothing if McNab and his followers are not the church’s
authorized leaders. Therefore, like the trial court, we view the pivotal question regarding
the probable validity of plaintiff’s real property claims as, first and foremost, whether
McNab and his followers demonstrated they are the rightful leaders of St. Mark Pittsburg,
with authority to sue on its behalf and block the sale of the Carpino Avenue property. If
they lack such authority, regardless of the status of the merger, they have no chance of
success in this lawsuit. (See Anmaco, Inc. v. Bohlken (1993) 13 Cal.App.4th 891, 898–
900 [even a corporation president owning 50 percent of the corporate shares may not
“institute litigation in the name of the corporation,” thus summary judgment properly
granted to defendant].)
       The record contains substantial evidence supporting the trial court’s determination
that McNab and his followers are not the rightful leaders of St. Mark Pittsburg, regardless
of the status of the merger.
       To begin with, there is evidence establishing the ongoing, uncontested leadership,
both before and after the asserted merger, of individuals who were formerly affiliated
with St. Mark Pittsburg and who did not join the McNab breakaway group. (See City of
Venice v. Short Line Beach Land Co. (1919) 180 Cal. 447, 453 [corporate authority “may
be shown by evidence that the person does business for the corporation and on its behalf,
as agent, with the knowledge and acquiescence of its directors or general manager, or by
their direction”].) In the 2010 merger talks, for instance, St. Mark Pittsburg was
represented by its then undisputed leaders Lawrence Thomas, LaShon Craig, Julius
Jones, and Bertha Gosha. The written merger agreement was signed by Thomas, Jones,
and Gosha. While McNabb also signed, he did so as pastor, not as an individual with
governing authority of St. Mark Pittsburg. Later in 2010, Thomas and Jones executed
the loan secured by the Carpino Avenue property. And after McNab and his followers
left the new church, Thomas, Craig, and Gosha continued to sign documents in their
capacity as leaders of St. Mark Pittsburg, for the benefit of the unified church.

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          While McNab, Tiara Jones and Chantal Evans later filed papers asserting they
were the true officers of St. Mark Pittsburg, they were not chosen not by the full
congregation of St. Mark Pittsburg, but by the small group that left the unified church
with McNab. Evans did not know whether there was any kind of quorum at the meeting
where she assertedly became an officer. She further conceded that Thomas and Julius
Jones had been trustees of St. Mark Pittsburg prior to the merger and, to her knowledge,
that status never changed during the unified operation of the churches.
          Ultimately, there is no evidence as to how Evans or any other supposed officer or
trustee could legitimately assume power over St. Mark Pittsburg church. For example,
there are no meeting minutes, and the actions of the purported new church leaders have
been hotly disputed. In conclusory declarations, Evans and other followers of McNab
told the trial court they “currently” occupy positions of leadership in the church, but none
addressed how or why his or her claim to such a position is procedurally or substantively
legitimate under the church’s governing law.
          Thus, given the evidence before it, the trial court did not abuse its discretion in
ruling St. Mark Pittsburg failed to show it will likely prevail on its real property claims
and in granting St. Mark at Bethel’s motion to expunge the lis pendens.
          St. Mark Pittsburg’s other arguments that the expungement order was improper
also lack merit.
          The trial court’s tentative decision—which denied expungement—is, contrary to
plaintiff’s argument, irrelevant to our review. Such rulings are preliminary, not binding,
and simply meant to guide the parties’ oral arguments. (Cal. Rules of Court, rule 3.1590;
In re Marriage of Boblitt (2014) 223 Cal.App.4th 1004, 1029; Meddock v. County of Yolo
(2013) 220 Cal.App.4th 170, 175, fn. 4; Kinney v. Vaccari (1980) 27 Cal.3d 348, 357 [a
tentative decision “is not controlling and not appealable”].) Thus, there was nothing
improper about the trial court changing its view of the case after issuing its tentative
ruling.

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       The expungement order hinged on neutral principles of civil law. Thus, contrary
to plaintiff’s argument, it did not resolve “controversies over religious doctrine.”
Therefore, the order did not “establish” a church or inhibit its free exercise of religion in
violation of the First Amendment. (Presbyterian Church in United States v. Mary
Elizabeth Blue Hull Memorial Presbyterian Church (1969) 393 U.S. 440, 449 [“Civil
courts do not inhibit free exercise of religion merely by opening their doors to disputes
involving church property.”]; Kim v. True Church Members of Holy Hill Community
Church (2015) 236 Cal.App.4th 1435, 1446–1447 (Kim), citing In re Episcopal Church
Cases (2009) 45 Cal.4th 467, 485.)
       The mere fact the complaint alleged real property claims does not, contrary to
plaintiff’s argument, preclude expungement. A lis pendens may be expunged, of course,
when a plaintiff fails to even state a real property claim. (§ 405.31.) But even when a
real property claim is alleged, expungement is still proper if the plaintiff cannot show a
probability of prevailing. (§ 405.32.) In other words, there are two alternative,
independent grounds for a motion to expunge (Kirkeby, supra, 33 Cal.4th at p. 651), and
the trial court properly entertained a motion on the latter ground.
       Finally, contrary to plaintiff’s argument, the trial court did not have to allow
further discovery on whether the merger of the churches was ever complete. As we have
discussed, that is not the determinative issue. Plaintiff also never asked for additional
discovery and thus forfeited the issue. (Kim, supra, 236 Cal.App.4th at p. 1450; Robbins
v. Regents of University of California (2005) 127 Cal.App.4th 653, 659.) In any case, the
parties conducted discovery while the motion to expunge, and then while the motion for a
preliminary injunction, was pending, and plaintiff submitted discovered material in its
opposition to the motion to expunge.
Preliminary Injunction
       In determining whether to issue a preliminary injunction, a trial court considers:
“(1) the likelihood the plaintiff will prevail on the merits of its case at trial, and (2) the

                                               10
interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the
harm the defendant is likely to suffer if the court grants a preliminary injunction.”
(Husain v. McDonald’s Corp. (2012) 205 Cal.App.4th 860, 866–867 (Husain).) The
overarching question for an appellate court reviewing the denial of a preliminary
injunction is whether the trial court committed a clear abuse of discretion. (American
Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 274
(Model Schools).) “ ‘Discretion is abused when a court exceeds the bounds of reason or
contravenes uncontradicted evidence.’ ” (Husain, at p. 867.)
       As noted in the previous section, whether a plaintiff is likely to prevail on a claim
for preliminary injunctive relief is essentially the same question as whether a plaintiff’s
real property claim has “probable validity” under the lis pendens statutes. (Howard,
supra, 106 Cal.App.4th 314, 319–320.) Both determinations are reviewed on appeal for
abuse of discretion. (Id. at p. 320.)
       In its opening brief, the McNab/St. Mark Pittsburg group challenged only the trial
court’s determination regarding the likelihood of success and said nothing about
balancing the relative hardships. Indeed, in its reply brief, the group states: “If this Court
finds . . . substantial evidence” the McNab/St. Mark Pittsburg group is not likely to
succeed on its real property claims, “then this appeal ends here and the trial court’s order
may be affirmed.” We agree. We also need not, and therefore do not, repeat our
discussion on the likelihood of plaintiff’s success on its claims. As we have discussed,
the trial court’s conclusion that McNab and his followers did not make a persuasive
showing as to their claimed leadership and control of St. Mark Pittsburg is amply
supported by the record.
       For the first time in its reply brief, the McNab/St. Mark Pittsburg group takes issue
with whether the trial court balanced the relative hardships. However, it is fundamental
that “[a]n appellant’s failure to raise an argument in the opening brief waives the issue on
appeal.” (Telish v. California State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487,

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fn. 4.) Thus, “ ‘ “ ‘points raised in the reply brief for the first time will not be considered,
unless good reason is shown for failure to present them before.’ ” ’ ” (Julian v. Hartford
Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4; see also Rose v. Bank of
America, N.A. (2013) 57 Cal.4th 390, 399 [arguments made “for first time in . . . reply”
are not “properly raised”].) No such showing has been made here. Accordingly, we do
not address whether the trial court properly considered the balance of hardships. (See
Model Schools, supra, 227 Cal.App.4th at p. 275 [declining to consider relative hardships
question when “all of defendants’ arguments challenge [only] the trial court’s finding that
AIMS did not prove a probability of success on the merits”].)
                                        DISPOSITION
       The trial court’s orders expunging the lis pendens and denying injunctive relief are
affirmed. Respondent to recover costs on appeal.




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                                 _________________________
                                 Banke, J.


We concur:


_________________________
Humes, P. J.


_________________________
Dondero, J.




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