Filed 2/25/16 Stump v. Sierra Club CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA


JOHN STUMP,                                                         D066956

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2013-00056415-
                                                                    CU-MC-CTL)
SIERRA CLUB,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Katherine

A. Bacal, Judge. Affirmed.


         Robert P. Ottilie for Plaintiff and Appellant.

         Donahue Fitzgerlad and Michael S. Ward for Defendant and Respondent.

         John Stump brought a petition for writ of mandate and complaint for declaratory

and injunctive relief against the Sierra Club, a nonprofit public benefit corporation.

Stump, a member of the Sierra Club, alleged that it improperly removed him from

various leadership positions. The trial court denied Stump any relief. Stump appeals,

contending the Sierra Club's decision to remove him from all leadership positions
violated the organization's bylaws and rules and was not supported by substantial

evidence. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Stump joined the Sierra Club in 2008 and has remained an active dues-paying

member since that time. He served in various volunteer leadership positions within the

organization. For example, Stump was a member of the Executive Committee of the

San Diego Chapter of the Sierra Club. In 2012, he was selected to chair the Executive

Committee. Stump's term on the Executive Committee expired in December 2013.

       In August 2012, Susan De La Rosa, the Sierra Club's director of human resources,

informed Stump that the Sierra Club had suspended him from all volunteer leadership

positions. The Sierra Club's president, executive director, and chair of the Volunteer

Leadership Advisory Committee (the Panel) made the suspension decision. The

suspension notice explained the grounds for suspension, including that Stump threatened

Richard Miller's continued employment with the Sierra Club, engaged in harassment in

violation of employment policies, caused others to become fearful and reluctant to

participate in activities, and misdirected the organization's funds. Miller was the San

Diego Chapter's only paid employee. The Sierra Club later clarified that the suspension

only impacted Stump's "privilege to volunteer in an elected or appointed Sierra Club

leadership role," and not his membership in the organization. The Sierra Club did not

prohibit Stump from running in the upcoming San Diego Chapter Executive Committee

election.



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       The suspension notice informed Stump that he could respond to the notice in

writing before the Panel made its final decision regarding the suspension. Stump

requested that the Sierra Club provide him with documentation supporting its allegations

and information regarding persons who complained about him. The Sierra Club declined

to provide Stump with that information. In October 2012, Stump prepared a lengthy

response to the Panel's suspension notice disputing each of its allegations. Around the

same time, Stump ran for reelection to the Executive Committee, but was not reelected.

       After receiving Stump's response, the Sierra Club retained John Baum, an

employment attorney, to investigate the matter. Baum interviewed multiple witnesses,

including Stump. The Panel considered Stump's response to the suspension notice and

Baum's investigation.

       In February 2013, the Panel notified Stump that it was permanently suspending his

privilege to serve in volunteer leadership roles, effective March 2013. The Panel stated

the reasons for its decision, including: (1) although Stump did not directly threaten

Miller's employment, Stump's interactions with Miller created a perception that Miller's

job was threatened; (2) while Stump was chair of the Executive Committee, the

San Diego Chapter paid multiple individuals for work without complying with the Sierra

Club's independent contractor and employment policies; (3) Stump's approach to

leadership contributed to ongoing factionalism in the chapter; and (4) Stump actively

worked to damage Miller's reputation by digging up irrelevant personal information from

the past and forwarding the information to others. The Panel informed Stump that he



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could appeal its decision to the Sierra Club's Volunteer Leadership Advisory Committee

(the Committee).

       Stump appealed to the Committee, which included Susana Reyes, who was also on

the Panel that had made the decision to suspend Stump. The Sierra Club informed Stump

that while Reyes would discuss Stump's appeal with other Committee members, she

would not vote on whether to reverse the Panel's permanent suspension decision. Along

with his appeal, Stump submitted documentation and declarations disputing the Panel's

conclusions. The Committee reviewed Stump's materials, discussed his appeal and voted

to confirm his permanent suspension from holding volunteer leadership positions in the

Sierra Club. In May 2013, the Committee informed Stump that it denied his appeal.

       In June 2013, Stump brought a petition for writ of mandate and complaint for

declaratory and injunctive relief against the Sierra Club. Stump sought declarations that

the Sierra Club deprived him of his full membership rights, he should be entitled to seek

and hold leadership positions, the record does not support the Sierra Club's actions, and

the Sierra Club violated Stump's rights under the organization's bylaws and rules. Stump

also sought a writ of mandate preventing the Sierra Club from enforcing the suspension

against him and compelling the Sierra Club to provide him with all rights due him as a

member. Lastly, Stump sought to enjoin the Sierra Club from enforcing the suspension

and preventing him from seeking and holding leadership positions.

       The trial court denied Stump's requested relief. The court noted that Stump was

not seeking a determination of whether the Sierra Club violated the Corporations Code or

the common law doctrine of fair procedure; rather, Stump requested that the court

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determine whether the Sierra Club followed its own rules. Further, Stump was not

seeking to be reinstated to a volunteer leadership position, but was instead requesting a

determination of his future right to run for a leadership position. The court found:

(1) declaratory relief was not appropriate because no justiciable present controversy

existed between Stump and the Sierra Club as Stump only sought an opportunity to run

for a leadership position in the future, (2) mandamus was not appropriate because Stump

only sought a future opportunity to hold office, (3) the Sierra Club satisfied the

procedural requirements of the Corporations Code and common law doctrine of fair

procedure, (4) holding an appointed committee position in the Sierra Club was not a

fundamental right of membership and thus not subject to the court's review, (5) the

question of whether Stump could hold a leadership position in the future was not ripe,

and (6) the question of whether the Sierra Club complied with its own procedures was an

"internal question best left to the Sierra Club."

       Stump moved for a new trial based on irregularities in the proceedings, new

evidence, insufficiency of the evidence, and error in law. Stump affirmed his desire to

hold a leadership position within the Sierra Club and stated that but for his suspension, he

would run for election to the Executive Committee at the earliest possible opportunity.

The trial court denied Stump's new trial motion.

                                       DISCUSSION

                              I. The Nature of Stump's Claims

       Code of Civil Procedure section 1085, subdivision (a), grants the court the power

to issue a writ of mandate to compel "the admission of a party to the use and enjoyment

                                              5
of a right or office to which the party is entitled, and from which the party is unlawfully

precluded by the inferior tribunal, corporation, board, or person." (Italics added;

undesignated statutory references are to the Code of Civil Procedure.) Section 1060

allows any person interested under a written instrument to bring an action to declare his

or her rights thereunder.

       The parties dispute whether Stump's ability to seek and hold volunteer leadership

positions constituted a right subject to a writ of mandate or whether it was merely a

privilege that could be taken away by the Sierra Club. Similarly, they dispute whether

Stump had a contractual right under the Sierra Club's bylaws and rules to hold leadership

positions. Stump claims the Sierra Club's bylaws constituted a written agreement

between the parties which conferred upon him the right to hold leadership positions as he

was an active dues-paying member. The Sierra Club, on the other hand, points to the

language of its rules, which state that serving in a volunteer leadership position is a

privilege which can be removed. Assuming without deciding that Stump's claims are

proper under sections 1060 and 1085, we must ascertain their precise nature as the parties

are at odds in that regard as well.

       At first glance, Stump appears to raise arguments akin to those of the common law

right to fair procedure, which prevents private organizations from expelling a member in

a manner that is procedurally unfair. (Ezekial v. Winkley (1977) 20 Cal.3d 267, 272-273;

Kurz v. Federation of Pétanque U.S.A. (2006) 146 Cal.App.4th 136, 147 (Kurz).) The

court in Kurz discussed the application of the doctrine to a nonprofit sports organization

that suspended two of its volunteer umpires. (Kurz, supra, 146 Cal.App.4th at p. 138.)

                                              6
The two umpires challenged the organization's decision to suspend them because the

organization allegedly, among other things, failed to provide a written copy of the

complaint, pursued charges not set forth in the complaint, failed to follow the disciplinary

procedures in its bylaws, failed to respond to requests for clarification of the charges,

failed to provide a formal hearing, failed to provide a record of the proceedings, failed to

exclude certain biased persons from the proceedings, and pursued charges motivated by

the malice of others. (Id. at p. 142.) The suspended umpires asserted that the common

law right to fair procedure applied to them. (Id. at p. 147.) The court rejected the

umpires' argument, concluding that the doctrine did not "encompass internal decisions

that are unrelated to exclusion or expulsion from membership or that do not adversely

impair a member's economic interest. 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. Such determinations are better left to the discretion and

expertise of the nonprofit . . . organization's governing board." (Id. at p. 149, fns.

omitted.)

       Stump's claims are similar to those of the suspended umpires in Kurz, yet Stump

expressly disclaimed any arguments based on alleged violations of the common law right

to fair procedure and Corporations Code, which were also raised and rejected in Kurz.

(Kurz, supra, 146 Cal.App.4th at pp. 146-147 [concluding the proceedings against the

suspended umpires were fair and reasonable and did not violate the Corporations Code].)

In fact, when the trial court raised those issues in this case, Stump clarified that he did not

assert claims for violations of Corporations Code section 5341, regarding termination of

                                              7
membership in a nonprofit public benefit corporation, and the common law right to fair

procedure. Rather, Stump stated that he based his claims on the Sierra Club's alleged

noncompliance with its own bylaws and rules.

        On appeal, Stump reiterates that he is not asserting a common law claim of fair

procedure. He does, however, raise arguments on appeal based on alleged violations of

the Corporations Code. Those arguments are forfeited because Stump disclaimed them in

the trial court. (GECCMC 2005-C1 Plummer Street Office Ltd. Partnership v. NRFC

NNN Holdings, LLC (2012) 204 Cal.App.4th 998, 1003, fn. 3 [arguments disclaimed in

the trial court are forfeited on appeal].)

                             II. Sierra Club's Bylaws and Rules

        Stump argues the Sierra Club failed to comply with its own bylaws and rules when

it suspended his ability to volunteer in leadership positions. Specifically, he asserts the

Sierra Club violated its bylaws and rules by failing to resolve the matter informally and at

the local level, refusing to provide him with the evidence supporting its decision, and

failing to provide a fair appeal because Reyes was on the Panel that initially suspended

him and the Committee that considered his appeal. We reject these arguments.

A. Applicable Bylaws and Rules

        The Sierra Club was governed by Bylaws and Standing Rules, which related to the

bylaws. The Standing Rules provided that "[t]he only membership rights of Club

members are the rights specifically provided by the Articles, Bylaws and the Corporation

Law."



                                              8
       Standing Rule 2.2.6 set forth standards of conduct for members. That rule also

provided that "[s]erving in an appointed to elected position of leadership is a privilege

that can be lost either by ignoring the duty of loyalty expected of all Club leaders or by

violating the . . . affirmative standards of conduct." In regard to violations of the

standards of conduct, Standing Rule 2.2.6(c) provided that the "chair of the relevant Club

entity" should quickly resolve violations and any disputes "should be resolved at the most

local level, and informally whenever possible." Further, "[f]ormal actions under Standing

Rule 5.10.2 can be taken to remove, suspend or bar members from leadership positions."

       Standing Rule 5.10.2 pertained to the termination of membership or suspension of

member privileges. That rule provided:

          "(a) The Board has an obligation to protect the Club from harm,
          ensure a safe and productive working environment for members and
          staff, and foster a Club in which people want to participate in its
          mission. To assist in fulfilling this obligation, the Board delegates
          the authority for termination of Club membership or suspension of
          member privileges, including the privilege of serving in elected or
          appointed Club leadership positions, to the Executive Director, Club
          President, and chair of the Board Volunteer Leadership Advisory
          Committee. . . .

          "[¶] . . . [¶]

          "(d)(i) If the Executive Director, President and Board Volunteer
          Leadership Advisory Committee chair determine the request may
          warrant action, they will inform the member and those who have
          requested the investigation of that determination. . . .

          "(ii) If they agree to take action, they will notify the member in
          writing of this decision, the reasons for it, and the effective date of
          the action. . . . This notice shall inform the member that the
          termination of membership or suspension of member privileges may
          be appealed in writing to the Volunteer Leadership Advisory
          Committee. . . .

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           "(e) The Volunteer Leadership Advisory Committee shall review all
           timely appeals from members and decide whether to overturn the
           Panel's decision or let it stand."

B. Analysis

       "The rights and duties of members of a private voluntary association, between

themselves and in their relation to the association, are measured by the terms of the

association's constitution and bylaws. [Citation.] However, in many disputes in which a

party's rights and duties in relation to an organization are at issue, the courts may decline

to exercise jurisdiction." (Berke v. Tri Realtors (1989) 208 Cal.App.3d 463, 466-467.)

"One concern in such cases is that judicial attempts to construe ritual or obscure rules and

laws of private organizations may lead the courts into what Professor Chafee called the

'dismal swamp.' [Citation.] Another is with preserving the autonomy of such

organizations." (California Dental Assn. v. American Dental Assn. (1979) 23 Cal.3d 346,

353.) However, courts will intervene "when the aggrieved party can demonstrate ' "an

abuse of discretion, and a clear, unreasonable and arbitrary invasion of [its] rights. . . ." ' "

(Id. at p. 354.)

       " '[W]hen a private voluntary organization plainly contravenes the terms of its

bylaws, the issues of whether and to what extent judicial relief will be available depend

on balancing (1) the interest in protecting the aggrieved party's rights against (2) the

infringement on the organization's autonomy and the burdens on the courts that will result

from judicial attempts to settle such internal disputes.' " (California Trial Lawyers Assn.

v. Superior Court (1986) 187 Cal.App.3d 575, 579.) However, "the initial question in

determining whether judicial action is appropriate is whether the challenged action

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'plainly contravenes' the association's bylaws. Only then does the balancing test noted

above come into play." (Id. at p. 580.)

       In light of the foregoing principles, the initial question before us is whether Stump

has shown that the Sierra Club's actions "plainly contravene" the organization's bylaws.

(California Trial Lawyers Assn. v. Superior Court, supra, 187 Cal.App.3d at p. 579.) We

conclude he has not made this required showing. We address each of Stump's challenges

to the Sierra Club's Bylaws and Standing Rules in turn.

       First, Stump asserts the Sierra Club violated its procedures in Standing Rule

2.2.6(c)(i) by failing to resolve the matter informally and at the local level. However,

that rule provides that the "chair of the relevant Club entity" should resolve disputes

informally at the local level "whenever possible." Here, Stump was the San Diego

Chapter's chair. He was initially suspended because the Sierra Club's director of human

resources had received complaints that Stump had threatened and harassed Miller, an

employee. Accordingly, resolution at the local level was not possible in this case.

Moreover, Standing Rule 2.2.6 also provides that formal action under Standing Rule

5.10.2 "can be taken to remove, suspend or bar members from leadership positions."

This is the process that took place in this case. Accordingly, Stump has not shown that

the Sierra's Club's action "plainly contravened" Standing Rule 2.2.6.

       Stump next argues the Sierra Club violated Standing Rule 5.10.2(d) by refusing to

provide him with the evidence supporting its decision. Stump points to the language of

the rule, which provides that if the Panel decides to take disciplinary action against a

member, it shall notify the member in writing of its decision and "the reasons for it." The

                                             11
Panel provided Stump with a notice explaining the "reasons" for suspending him,

including that Stump threatened Miller's continued employment with the Sierra Club,

engaged in harassment in violation of employment policies, caused others to become

fearful and reluctant to participate in activities, and misdirected the organization's funds.

Nothing in the rule states that the Panel was required to provide Stump with the evidence

supporting its reasons for suspension. Rather, the rule merely states that the Panel must

provide its "reasons," which it did in this case. Thus, Stump has not shown the Panel

contravened the rule.

       Lastly, Stump contends the Sierra Club violated Standing Rule 5.10.2 by failing to

provide him a fair appeal because Reyes was on the Panel that initially suspended him

and the Committee that considered his appeal. Stump's argument fails because Standing

Rule 5.10.2(d)(i) provided that the initial Panel reviewing a request for suspension was

comprised of the executive director, president, and chair of the Committee. Subsection

(e) of that rule provided that Stump could appeal the Panel's decision to the Committee.

As its chair, Reyes was part of the Committee. Thus, Standing Rule 5.10.2 expressly

allowed Reyes to serve on both the Panel and Committee. Nothing in the rule suggests

that Reyes was required to recuse herself from the process. In any event, after Stump

expressed concern about Reyes acting on both the Panel and the Committee, the Sierra

Club informed him that while Reyes would discuss Stump's appeal with other Committee

members, she would not vote on whether to reverse the Panel's permanent suspension

decision. Thus, Stump has not shown that Reyes's role on the Panel and the Committee

plainly contravened Standing Rule 5.10.2.

                                              12
                               III. Sufficiency of the Evidence

       Stump contends substantial evidence did not support the Sierra Club's decision to

suspend him. He discusses at length each of the Sierra Club's findings against him and

the evidence contradicting those findings. He asks this court by way of declaration,

mandamus, or injunction to vacate the Sierra Club's findings against him as they are not

supported by the evidence and to compel the Sierra Club to restore his ability to hold

leadership positions. We decline to do so.

       As we have explained, "[o]ut of respect for a private association's autonomy and

special competence, courts generally will not interfere with the internal affairs of such an

organization or with the enforcement of its rules unless the determination of some civil or

property right is involved. [Citation.] 'It is true that courts will not interfere with the

disciplining or expelling of members of such associations where the action is taken in

good faith and in accordance with its adopted laws and rules. But if the decision of the

tribunal is contrary to its laws or rules, or it is not authorized by the by-laws of the

association, a court may review the ruling of the board and direct the reinstatement of the

member.' [Citation.] 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.' " (Budwin v. American Psychological Assn. (1994) 24 Cal.App.4th 875,

879 (Budwin).)




                                              13
       Stump is asking us to weigh in on the internal affairs of the Sierra Club. However,

he does not argue that some civil or property right is involved such that we should

interfere with the Sierra Club's enforcement of its bylaws and rules. (Budwin, supra, 24

Cal.App.4th at p. 879.) Moreover, he has not shown that the Sierra Club acted in plain

contravention of its bylaws and rules. In these circumstances, we exercise judicial

restraint and decline to substitute our judgment for that of a private organization on a

matter that is best left to the organization.

                                        DISPOSITION

       The judgment is affirmed. Respondent is entitled to costs on appeal.


                                                                             McINTYRE, J.

WE CONCUR:


McCONNELL, P. J.


IRION, J.




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