Judge Mitchell L. Beckloff, Case Number: 23STCP00049, Date: 2023-08-09 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP00049, Date: 2023-08-09 Tentative Ruling

HARRISON v. BENEVLOLENT AND PROTECTIVE ORDER OF THE ELKS OF THE UNITED STATES OF AMERICA—GRAND LODGE

Respondents, Pasadena Lodge No. 672 Benevolent and Protective Order of Elks of the United States of America (the Lodge), Donna Leiby, Robert Hollis-Brau, Teresa Skobba, Neil F. Yeager, and Rene Flores, demur to the first amended petition for writ of mandate (FAP) filed by Petitioner, Paul W. Harrison, for failure to state a cause of action and for uncertainty.

“Respondent BENEVOLENT AND PROTECTIVE ORDER OF ELKS OF THE UNITED STATES OF AMERICA (hereafter ‘BPOE’)[2] is a national fraternal benefit organization chartered in 1868. The BPOE is organized via a Constitution of The Benevolent and Protective Order of Elks of the United States of America and is also governed by its Grand Lodge Statutes (hereinafter ‘GLS’).” (FAP ¶ 2.) “Respondent Pasadena Lodge 672 is a California Nonprofit Mutual Benefit Corporation # C0405219 pursuant to California Corporations Code § 7110.” (Id. ¶ 3.)

Petitioner “has been a thirty-five (35) year member in good standing of the BPOE and Pasadena Lodge #672 . . . until his recent improper expulsion therefrom.” (Id. ¶ 1.)

“[O]n or about November 5, 2020 Respondent Pasadena Lodge received Executive Order No. 20-065 . . . from the BPOE and GER [Grand Exalted Ruler, Bruce Hidley] appointing Special Representative Donna Leiby to oversee, manage and control the day-to-day operations of Pasadena Lodge 672. . . .” (Id. ¶ 29, Exh. 2.) The executive order was based on the Pasadena Lodge’s failure “to maintain a sound financial footing.” (Ibid.)

On or about February 1, 2022, pursuant to Corporations Code section 8333, Petitioner made a written request of the Lodge to inspect its bylaws, accounting books, records, minutes, and financial statements. (FAP ¶ 34, Exh. 2 to Exh. 3 of FAP at p. 111 of 177.) On March 30, 2022, Petitioner filed a writ proceeding in Los Angeles County Superior Court (Case No. 22STCP01148) seeking to enforce his inspection demand. (Id. ¶ 36 and Exh. 3.) On or about May 3, 2022, an attorney for the Lodge wrote Petitioner reporting the “Lodge intends to comply fully with your inspection rights.” (Id. Exh. 4.) On or about June 6, 2022, Petitioner and the Lodge executed a “Confidential Settlement Agreement” related to the writ proceeding and Petitioner’s inspection demand. (Id. Exh. 5.)

“Recently, regular membership and Board of Director meetings [of the Lodge] have deteriorated into raucous, verbal free-for-alls with no regard for common courtesy, California law, the GLS or Robert’s Rules of Order.” (Id. ¶ 41.)

Respondents Louis Grillo and Robert Duitsman (who are among BPOE senior leadership) issued conflicting and confusing instructions to the Lodge regarding Lodge operations and granting access to the Lodge’s financial books and records, which Petitioner alleges have been used by certain Respondents to take unspecified “unlawful actions.” Petitioner spoke out “vociferously” against this “unlawful behavior.” (Id. ¶¶ 50-52 and 5-6.)

As a result of his speaking out, Petitioner was personally served on January 24, 2023, with Emergency Executive Order No. 22-110E expelling Petitioner from membership in BPOE. The order was issued by GER Hidley, upon recommendation of Respondents Grillo and Duitsman. (Id. ¶ 52, Exh. 11.)

“Also on January 24, 2023 Pasadena Lodge 672 received Executive Order No. 22- 109E placing Pasadena Lodge 672 on probation and confirming the appointment of a Probation Committee which would have full and complete authority over the operation and finances of Pasadena Lodge 672 and, additionally, suspending all disciplinary proceedings and officer removal actions for a ‘cooling off’ period of ninety (90) days. . . .” (Id. ¶ 53 and Exh. 12.)

“On or about February 13, 2023 Petitioner received Executive Order No. 22-110F and Pasadena Lodge 672 received Executive Order No. 22-109F confirming Petitioner’s final and permanent expulsion from the BPOE and Pasadena Lodge 672’s indefinite probation. . . .” (Id. ¶ 54 and Exh. 13.)

“Petitioner has filed an Appeal with the Grand Forum, the BPOE equivalent to the U.S. Supreme Court, (a true and correct copy of which is attached hereto as Exhibit 14). . . .” (Id. ¶ 57.)

The caption to the FAP indicates Petitioner seeks orders to (1) compel his reinstatement into the Lodge; (2) compel performance of the prior settlement agreement; (3) compel Respondents to permit the inspection and copying of the books and records of Lodge; and (4) enjoin unauthorized and/or discretionary expenditures of the Lodge. (FAP 1.)

In the four causes of action in the body of the FAP, however, Petitioner seeks (1) a writ of mandate compelling his reinstatement into the Lodge; (2) a declaratory judgment adjudicating the parties’ rights and obligations with respect to various Lodge statutes; (3) a permanent injunction prohibiting Respondent BPOE from issuing any further disciplinary orders against Petitioner, the Lodge, or the Lodge’s members and officers; and (4) injunctive relief for alleged violations of California Business and Professions Code section 17200.

a. A writ of mandate be issued under Code of Civil Procedure section 1085 ordering Respondents to vacate Executive Orders No. 22-109E, 22-109F, 22-110E and 22-110F and compelling Respondents to provide Petitioner and the Lodge with a fair hearing before an independent and impartial hearing officer;

b. A declaratory judgment that GLS sections 9.010, 9.011, 9.012, 9.013 and 9.160 are void and without effect in the State of California;

c. Respondent Hidley immediately rescind and/or revoke Executive Orders No. 22-109E, 22-109F, 22-110E and 22-110F and remove the Lodge from probation and reinstate Petitioner to full membership rights and privileges in the BPOE and the Lodge;

d. For a permanent injunction prohibiting the Respondents from further issuing and/or attempting to enforce any punitive Executive Orders against Petitioner, the Lodge, its members and/or against any others similarly situated in the State of California, without first providing fair procedure, including advance notice and a meaningful opportunity to be heard prior to the imposition of punishment and otherwise prohibiting Respondents from continuing to engage in unfair or unlawful business acts or practices constituting unfair competition;

e. Respondents immediately comply with all of their obligations under the June 7, 2022 Settlement Agreement between the parties;

f. Respondents make available to Petitioner and other GLS authorized Lodge members all corporate and financial records of the Lodge as set forth in the FAP, or which Petitioner may request access to from time to time in the future pursuant to the FAP, the Settlement Agreement and California law;

g. Respondents immediately cease all authorization and/or expenditure of Lodge funds for any purpose whatsoever without the specific approval of Lodge membership including, but not limited to, legal fees, accounting fees, the Lodge improvements and maintenance, as well as expenses incurred for any events related to the 2023 New Year Celebration, Pasadena Rose Parade and Rose Bowl Football Game that were held at the Lodge or in the greater Pasadena area;

h. Petitioner be awarded reasonable attorneys' fees pursuant to Corporations Code sections 8337 & 8323, subdivision (b);

k. In addition to a writ of mandate, Petitioner also seeks a declaration of the rights and responsibilities of the Parties under Code of Civil Procedure section 1060, and an injunction enjoining the Respondents from continuing to issue punitive orders against Petitioner and the Lodge in defiance of their responsibility to provide fair procedure, and in violation of §§17200 et seq. of the Business and Professions Code. (See FAP Prayer.)

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civil Proc., § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The allegations in the petition must be liberally construed in favor of Petitioner on demurrer. (See Mobil Oil Corp. v Exxon Corp. (1986) 177 Cal.App.3d 942, 947.)

Significantly, “a demurrer must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

First Cause of Action – Writ of Ordinary Mandate (Code of Civil Procedure section 1085)

Petitioner brings his first cause of action pursuant to Code of Civil Procedure section 1085. There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.)

Respondents contend Petitioner has not stated a cause of action for a writ of mandate because (1) Petitioner lacks standing to seek mandate against Respondents since he has been expelled from BPOE; (2) Petitioner improperly seeks to usurp or compel discretionary acts by private parties; and (3) Petitioner has not exhausted his administrative remedies before BPOE.

To have standing to seek a writ of mandate, a party must be “beneficially interested.” (Code Civ. Proc., § 1086.) “A petitioner is beneficially interested if he or she has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.” (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 913; accord Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796-97.) “This standard . . . is equivalent to the federal ‘injury in fact’ test, which requires a party to prove by a preponderance of the evidence that it has suffered ‘an invasion of a legally protected interest that is '(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.’ ” (Associated Builders and Contractors, Inc. v. San Francisco (1999) 21 Cal.4th 352, 361-362.)

Respondents contend “Petitioner admits he has been expelled from the Elks and the Lodge and is not a member . . ., so he has no beneficial interest in the outcome of this dispute. . . .” (Dem. 7.) Respondents further state: “Petitioner alleges that Lodge members have a ‘beneficial interest’ in the issuance of a writ so that they can receive advance notice of any charges against them. Am. Petition, ¶64. But, the ‘beneficial interest’ of other, unspecified Lodge members is not legally relevant; it is the petitioner who must demonstrate a beneficial interest. . . .” (Dem. 7.)

The court agrees Petitioner, as an expelled member, does not allege a beneficial interest in challenging the indefinite probation imposed by BPOE on the Lodge or other actions taken against Lodge members generally. (See FAP ¶¶ 64-69.) With respect to those alleged actions, Petitioner does not have a “special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.” (Rialto Citizens for Responsible Growth v. City of Rialto, supra, 208 Cal.App.4th at 913.)

However, Respondents do not address the pertinent allegations of the first cause of action related to Petitioner’s expulsion and the fairness of the procedure leading to his expulsion. Specifically, Petitioner alleges: “Respondents, and each of them, had a duty to provide Petitioner . . . with fair procedure, including without limitation, notice of any potential disciplinary charges it was considering and to provide a fair opportunity to be heard . . . prior to the imposition of discipline, including . . . expulsion. Respondents, in doing the things herein alleged, have violated those duties to [] Petitioner . . . .” (FAP ¶ 62.) Petitioner further alleges: “There is no plain, speedy, or adequate remedy at law to challenge the Orders other than the relief sought in this petition because . . . Petitioner . . . ha[s] been punished without notice of the charges against [him], and without an opportunity to challenge those charges beforehand. . . . In addition, the damage to Petitioner’s . . . reputations for being found guilty of [the] various allegations [in the Expulsion Order] . . . cannot be adequately compensated at law.” (Id. ¶ 66.)

Such allegations are sufficient, as a matter of pleading, to allege Petitioner has a beneficial interest in a writ of mandate compelling his reinstatement. The expulsion directly impacted Petitioner’s right to membership in BPOE and the Lodge. Petitioner also alleges damage to his own reputation from the expulsion. Petitioner has alleged “some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.” (Rialto Citizens for Responsible Growth v. City of Rialto, supra, 208 Cal. App.4th at 913.) For purposes of demurrer, Petitioner has sufficiently alleged standing to challenge his expulsion.

That said, Petitioner has not sufficiently alleged standing to challenge the indefinite probation imposed by BPOE on the Lodge or other actions taken against Lodge members generally.

Respondents contend Petitioner has failed to state a cause of action for a writ of mandate because he does not seek to compel a ministerial act “by a public agency or official” and because he “seeks to usurp the discretionary judgment of wholly private parties (i.e, the Lodge and several of its current or former officers, members, special representatives, and past Grand Exalted Rulers).” (Dem. 8 [emphasis added].)

Respondents suggest a writ of mandate pursuant to section 1085 must issue against a “public agency or official.” “Generally, mandamus is available to compel a public agency's performance or to correct an agency's abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.)

However, Code of Civil Procedure section 1085 provides a writ “may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.” (Emphasis added.) Thus, the plain language of the statute expressly provides a writ of mandate may be issued to compel a corporation or other private association or its officers to perform “an act with the law specially enjoins.” (See e.g., Fry v. Pekarovich (1975) 46 Cal.App.3d 165, 171 [duties of secretary of nonprofit corporation were ministerial and could be enforced by mandate]; Cason v. Glass Bottle Blowers Ass’n of U.S. and Canada (1951) 37 Cal.2d 134, 140. [“It is clear that mandate is available in this state against an unincorporated association.”])

Respondents ignore Petitioner’s allegation Respondents owed a legal duty (by contract, statute, or common law) to provide him with a fair procedure to challenge his expulsion and could not expel him arbitrarily or unfairly. (See FAP ¶ 25 [citing common law and Corp. Code, § 7341 fair procedures]; ¶¶ 27, 61 [contractual duties]; ¶¶ 62-63 [duties of fair procedure].) If BPOE or the Lodge owed such duties to Petitioner, then a writ of ordinary mandate could perhaps issue to compel performance of such mandatory duties, even though BPOE and the Lodge are private organizations. Further, the duty to provide a fair procedure could be ministerial, not discretionary.

Respondents also failed to address Corporations Code section 7341[3] cited by Petitioner in his FAP. (FAP ¶ 25.) Respondents also do not address Ezekial v. Winkley (1977) 20 Cal. 3d 267, 273 (cited by Petitioner in his opposition papers) which explains the common law right to fair procedure “has been extended to . . . fraternal and social groups.”

For purposes of this demurrer, Respondents’ claim Petitioner failed to plead the required elements for a cause of action for a writ of mandate based on an unfair hearing is unpersuasive. The argument is insufficiently developed. (See Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 [Cal. Rules of Court, Rule 3.1113 “rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories”]; Inyo Citizens for Better Planning v. Inyo County Board of Supervisors (2009) 180 Cal.App.4th 1, 14 [court does not “make the parties’ arguments for them”].) Respondents have the initial burden on a demurrer—they were required to address the claim in their moving papers.

The court cannot opine on this briefing whether Petitioner has alleged a violation of Corporations Code section 7341 or fair hearing. The court merely concludes Respondents did not meet their burden on the issue for this demurrer. Nothing precludes Respondents from further developing their arguments in future proceedings.[4]

Respondents contend Petitioner admits in the FAP he has not exhausted an administrative appeal remedy before BPOE. (Dem. 9-11.) The court agrees.

Exhaustion of administrative remedies is “a jurisdictional prerequisite to judicial review.” (California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489.) “Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.” (Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520.) Generally, “the exhaustion doctrine precludes review of an intermediate or interlocutory action of an administrative agency. A party must proceed through the full administrative process ‘to a final decision on the merits.’ ” (Alta Loma School Dist. v. San Bernardino County Com. On School Dist. Reorganization (1981) 124 Cal.App.3d 542, 554.)

There are exceptions to the exhaustion requirement, including “when the subject of the controversy lies outside the administrative agency's jurisdiction, when pursuit of an administrative remedy would result in irreparable harm, when the administrative agency cannot grant an adequate remedy, and when the aggrieved party can positively state what the administrative agency's decision in his particular case would be.” (Edgren v. Regents of University of California, supra, 158 Cal.App.3d at 520.)

Petitioner alleges he has filed an appeal of his expulsion “with the Grand Forum, the BPOE equivalent to the U.S. Supreme Court, (a true and correct copy of which is attached hereto as Exhibit 14) which required a $1,000.00 filing fee (GLS §7.070).” (FAP ¶ 57.) The appeal attached as Exhibit 14 shows Petitioner has challenged the expulsion on various grounds, including that the allegations are not supported by the facts. Pursuant to Grand Forum Rules, Petitioner seeks a de novo review and trial on the merits. (Id. Exh. 14.) Therefore, as the FAP is pleaded, Petitioner admits he has an administrative remedy to challenge his expulsion and that he has not yet fully exhausted that remedy.

Petitioner appears to invoke exceptions to the exhaustion requirement. First, he contends that “[b]ecause the Orders are void under California law, the Petitioner and Pasadena Lodge 672 are not required to exhaust their administrative remedies prior to bringing this action.” (FAP ¶ 67; see also FAP ¶ 25 [indicating an expulsion by a nonprofit mutual benefit corporation that does not comply with Corporations Code section 7341 “shall be void and without effect”].)[5] However, Petitioner cites no authority in the FAP or opposition that the possibility the expulsion could be voided under California law provides an excuse from the exhaustion requirement.

With respect to the first cause of action, Petitioner also alleges “Respondents have failed to comply with their own procedures and failed to issue rulings on either the stay or dismiss motions in a timely manner. In so acting, Respondents have revealed the futility of attempting to go through an internal BPOE appeal.” (FAP ¶ 68.) Futility is a narrow exception to the exhaustion requirement and does not apply unless a “petitioner can positively state that the commission has declared what its ruling will be in a particular case. . . .” (Sea & Sage Audubon Society, Inc. v. Planning Comm. (1983) 34 Cal. 3d 412, 418.) “For the futility exception to apply, it is not sufficient that a party can show what the agency's ruling would be on a particular issue or defense.” (Coachella Valley v. California Public Employment Relations Bd. (2005) 35 Cal. 4th 1072, 1081.) Petitioner’s conclusory allegation in paragraph 68 is insufficient to plead futility. Petitioner does not allege BPOE has declared what its ruling will be on the merits of Petitioner’s appeal.

Based on the foregoing, Petitioner has not alleged standing to challenge the indefinite probation imposed by BPOE on the Lodge or other actions taken against Lodge members generally. While he has alleged standing to challenge his own expulsion, he has not alleged exhaustion of administrative remedies or an excuse from exhaustion with respect to his expulsion. Accordingly, for these reasons, the first cause of action does not state a claim for mandate. The demurrer to the first cause of action is SUSTAINED.

Petitioner’s second cause of action seeks a declaration of the parties’ rights and obligations as to BPOE’s “Grand Lodge Statutes” and fair procedure. Petitioner contends the statutes “as interpreted by Respondents, violate and they are contrary to settled California law regarding fair procedure prior to the deprivation of rights . . . .” (FAP ¶ 73.) Accordingly, Petitioner’s second cause of action is derivative of his first cause of action for an ordinary writ. Thus, the second cause of action fails for the same reasons as Petitioner’s first cause of action.

Petitioner’s third cause of action for injunction is not a cause of action; it is a remedy. (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 572 n. 2; Faunce v. Cate (2013) 222 Cal.App.4th 166, 173. [“. . . injunctive and declaratory relief are equitable remedies, not causes of action.”]) As pled, the injunction requests relief related to the first cause of action. Petitioner may seek such relief, if appropriate, in the prayer to any amended petition.

The Los Angeles County Court Rules (Local Rules) designate Department 86 as a specialized department to which writ proceedings are assigned. Department 86 is not a general civil department. Petitioner’s alleged violation of Business and Professions Code section 17200 is not properly assigned to this department. Accordingly, the court stays the fourth cause of action pending resolution of Petitioner’s claims based on ordinary mandate. At the conclusion of the proceedings on mandate, the court will transfer the matter to Department 1 for reassignment to a general civil department for resolution of the fourth cause of action. Upon reassignment to a general civil department, Respondents may renew their demurrer to the fourth cause of action.

Demurrers for uncertainty apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Respondents’ notice of demurrer does not include a demurrer for uncertainty pursuant to Code of Civil Procedure section 430.10, subdivision (f) as to the first cause of action. To the extent Respondents intended to demur for uncertainty to the first cause of action, they did not specify the grounds. Accordingly, the court disregards the (apparent) special demurrer. (Code Civ. Proc., § 430.60.)

As to paragraphs (e) and (f) of the FAP’s prayer, the court agrees they are uncertain. The paragraphs are unrelated to the cause of actions pleaded—a claim for ordinary mandate (with a derivative declaratory relief claim) and a claim under Business and Professions Code section 17200. Respondents cannot reasonably determine and respond to the legal basis for such prayers from the causes of action pleaded.

The court finds, however, the issue of uncertainty is properly addressed in Respondents’ motion to strike, not a demurrer. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163. See also Moropoulos v. C.H. & O.B. Fuller Co. (1921) 186 Cal. 679, 688. [“The prayer for damages itself is not part of the complaint, subject to demurrer, and the fact that plaintiff has prayed for exemplary damages, or any other relief to which he may not be entitled does not affect the sufficiency of his complaint.”])

The court finds paragraph (a) of the FAP’s prayer, however, is proper and directly relates to Petitioner’s claim in ordinary mandate.

The special demurrer is overruled to the extent it is directed to the first cause of action. The court also overrules the demurrer to paragraph (a) of the FAP’s prayer. The court addresses the uncertainty of paragraphs (e) and (f) below through Respondent’s motion to strike.

Upon motion, the court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) Given that limitation, a motion to strike also is “not the appropriate procedure for determining the truth of disputed facts.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114.) Courts take a “cautious” approach to motions to strike. “We have no intention of creating a procedural ‘line item veto’ for the civil defendant.” (PH II, Inc. v. Superior Court (1995) 33 Cal. App. 4th 1680, 1683.) “Judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

Respondents move to strike three paragraphs of Petitioner’s prayer for relief.

Respondents also move to strike language in the FAP’s caption stating Petitioner is suing “as representative for all others similarly situated” and “on behalf of all others similarly situated.” Petitioner concedes that such language from the caption may be stricken. (Opposition 3:16-17.) Accordingly, the motion is granted as to the language in the caption.

First, as noted earlier, paragraphs (e) and (f) of the FAP’s prayer are uncertain. There is no substantive claim or cause of action related to this relief to which Respondents could respond. As noted by Respondents, the relief is “untethered” to any specific cause of action.

While Petitioner asserts the requested relief is central to the dispute, Respondents are correct—the relief sought is not connected to the causes of action as they are currently pleaded. There is no cause of action based on the settlement agreement or access to corporate records. That Petitioner has titled his FAP to reference a settlement agreement and access to corporate records is of no consequence. The FAP’s causes of action must be separately labeled in the body of the petition. (See Cal. Rules of Court, Rule 2.112.)

Respondents move to strike paragraph (h) of the FAP’s prayer—a request for an award of attorney’s fees.

It is well established that a self-represented litigant may not recover attorney’s fees. (Trope v. Katz (1995) 11 Cal.4th 274; Atherton v. Board of Supervisors (1986) 176 Cal.App.3d 433, 436.) Petitioner has not identified any authority otherwise. Accordingly, since Petitioner is representing himself in this action, paragraph (h) of the FAP’s prayer is improper and subject to motion to strike.

Of course, nothing precludes Petitioner from seeking his costs pursuant to Code of Civil Procedure section 1033.5 should he prevail in this litigation.

A demurrer may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at 318.) Courts generally permit amendment once after sustaining a demurrer. (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303.) In assessing whether leave to amend should be granted, the burden is on the complainant to demonstrate a pleading can be successfully amended. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348-349.) These same rules apply to a motion to strike.

The court grants leave to amend the FAP in a manner consistent with this ruling except as to paragraph (h), the attorney’s fees provision, of the FAP’s prayer. (Petitioner may move the court to amend his petition later if facts change such that amendment may be appropriate.)

The court makes no ruling on the demurrer to the fourth cause of action other than staying the claim pending reassignment to an independent calendar court.

Respondent Hidley’s motion to quash filed June 20, 2023 is reset for hearing on October 6, 2023. Briefing shall be pursuant to Code of Civil Procedure section 1005.

The demurrer filed on June 20, 2023 by other individual Respondents is now moot given the court having sustained the demurrer filed May 23, 2023 to the FAP.

The demurrer to the FAP is sustained with leave to amend as to the first cause of action and the derivative claims alleged in the second cause of action. To the extent Petitioner seeks an injunction, he may request such relief in the petition’s prayer.

The court stays the proceedings on the fourth cause of action pending reassignment to an independent calendar court.

The motion to strike is granted as paragraphs (e), (f) and (h) in the FAP’s prayer. The motion to strike is denied as to paragraph (a) in the FAP’s prayer.

Leave to amend is granted (21 days) as to all except paragraph (h) in the FAP’s prayer which is sustained without leave to amend.

[1] The FAP includes detailed factual allegations and multiple exhibits. The court summarizes only those allegations relevant to the ruling on demurrer and motion to strike.

[2] For consistency, the court uses Petitioner’s acronyms herein.

[3] California Corporations Code section 7341, subdivisions (a), (b) and (c) set forth the standard for expulsion from a nonprofit mutual benefit corporation formed pursuant to Corporations Code section 7110 et seq. Section 7341, subdivision (a) states: “No member may be expelled or suspended, and no membership or memberships may be terminated or suspended, except according to procedures satisfying the requirements of this section. An expulsion, termination or suspension not in accord with this section shall be void and without effect.”

[4] To the extent Respondents have raised new arguments in reply concerning the common law doctrine of fair procedure (see Reply 4:16-28), the court does not consider them as they have not shown good cause to make new arguments in reply. (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) While Petitioner did briefly discuss such cases in opposition, Petitioner did not fully brief the issue and Respondents should have raised any arguments concerning the common law doctrine in their moving papers. Further, as noted, the reply does not address Corporations Code section 7341 or the Supreme Court’s decision in Ezekial v. Winkley.

[5] The FAP alleges the Lodge is a nonprofit mutual benefit corporation, not BPOE. (FAP ¶¶ 2-3.) If BPOE issued the expulsion order, there is a question of whether Corporations Code section 7341 applies to BPOE. The court need not reach that question, however, as it is not briefed by either party and is not necessary for the court’s ruling on this demurrer.