Episcopal Church Cases

Filed 3/26/10 Episcopal Church Cases CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
EPISCOPAL CHURCH CASES.
JANE HYDE RASMUSSEN et al.,
Petitioners,
v.
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
THE REV. PRAVEEN BUNYAN et al.,
Real Parties in Interest.
G042454
(JCCP No. 4392)
O P I N I O N
Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Thierry Patrick Colaw, Judge. Writ granted.

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Holme Roberts & Owen, John R. Shiner, Brent E. Rychener; Horvitz &
Levy, Jeremy B. Rosen, James A. Sonne; Goodwin Procter, David Booth Beers, Heather
H. Anderson and Jeffrey David Skinner for Petitioners.
No appearance for Respondent.
Payne & Fears, Eric C. Sohlgren, Benjamin A. Nix, Daniel F. Lula, Erik M.
Andersen; Greines, Martin, Stein & Richland and Robert A. Olson for Real Parties in
Interest.
* * *
I. Overview
Our dissenting colleague contends that the Supreme Court did not “decide,”
in Episcopal Church Cases (2009) 45 Cal.4th 467 (Episcopal Church Cases I), who now
actually owns the church property in dispute in this litigation, and now suggests the
Supreme Court grant review to re-write its opinion to conform to his views.
And indeed a re-write is what it must take, because, as shown by the plain
language of the Episcopal Church Cases I opinion -- indeed the plain post-modification
language of Episcopal Church Cases I -- the high court did conclusively “decide” who
now owns the property. Here‟s just a sample: “For these reasons, we agree with the
Court of Appeal‟s conclusion (although not with all of its reasoning) that, on this record,
when defendants disaffiliated from the Episcopal Church, the local church property
reverted to the general church.” (Episcopal Church Cases I, supra, 45 Cal.4th at p. 493,
italics added.)
“Reverted” is a past tense, already-happened, done-deal sort of word.
And “this record,” as the Supreme Court referred to it and as we explain
below, definitely included the very letter that the local church now relies on, and relied
on in the trial court to justify the defeat of the motion for judgment on the pleadings
brought in the wake of Episcopal Church Cases I. It is the order denying the general
church‟s motion for judgment on the pleadings that we now review in this writ
proceeding. (After the California Supreme Court‟s opinion became final, the local
church filed an answer in the trial court -- within 10 days actually. Then, in the trial

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court, the general church (and its subdivision, the Los Angeles Diocese), made a motion
for judgment on the pleadings. As against the motion, the local church posited a March
18, 1991 letter in which the general church allegedly waived any claim to the property.
In light of the March 1991 letter, the trial judge denied the general church‟s motion,
reasoning: “The waiver issue was not before the Court of Appeal nor the Supreme Court,
was expressly or impliedly decided by either court. It is not the law of the case.”)
We must remember that the Supreme Court can decide any issue it pleases
that is “fairly included” in the briefing. (People v. Alice (2007) 41 Cal.4th 668, 677
[“Rule 8.516(b)(1) of the California Rules of Court provides that, without permitting the
parties to submit supplemental briefs, „[t]he Supreme Court may decide any issues that
are raised or fairly included in the petition [for review] or answer.‟”].)
And, according to the Supreme Court in Episcopal Church Cases I, the
issue of the actual ownership of the property was “fully briefed” in the proceeding before
it: “Both lower courts also addressed the merits of the dispute over ownership of the
local church -- the trial court found in favor of the local church and the Court of Appeal
found clear and convincing evidence in favor of the general church. We will also address
this question, which the parties as well as various amici curiae have fully briefed.”
(Episcopal Church Cases, supra, 45 Cal.4th at p. 478, italics added.)1
We have no doubt, of course, that if we are incorrect in relying on the plain
language of the Supreme Court‟s opinion in granting the general church‟s petition for
writ of mandate, the high court will correct our error. Even so, secular courts, like many
members of many religions, must take their direction from “authoritative texts,” and in
this proceeding, Episcopal Church Cases I is our authoritative text. Guided by that text,
we must grant the petition. This is not a case where we must peer through a dark glass.
The Supreme Court used clear, unequivocal language in its opinion, including the post-
modification version of it.
1 The March 1991 letter was from the secretary to the Bishop of the Los Angeles Diocese at the time to the board of
the local church concerning a property transaction. We quote the entirety of the letter anon.

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Indeed, our opinion in this writ proceeding has already been pretty much
written for us by the Supreme Court. We need only introduce the general topic addressed
by a given swath of text -- and that only for reader convenience of literary continuity; the
Supreme Court‟s opinion speaks for itself. We emphasize now that all quotations are
from the post-modification version of the opinion:
II. Ownership Was At Issue
The Supreme Court framed the “dispute” before it expressly in terms of
present ownership: “Both the local church and the general church claim ownership of the
local church building and the property on which the building stands. The parties have
asked the courts of this state to resolve this dispute. . . .” (Episcopal Church Cases I,
supra, 45 Cal.4th at pp. 472-473, italics added.)
Also: “After the disaffiliation, a further dispute arose as to who owned the
church building that St. James Parish used for worship and the property on which the
building stands -- the local church that left the Episcopal Church or the higher church
authorities. [¶] To resolve this dispute, the Los Angeles Diocese and various individuals,
including a dissenter from the decision by St. James Parish to disaffiliate (hereafter
collectively Los Angeles Diocese), sued various individuals connected with St. James
Parish (defendants) alleging eight property-recovery-related causes of action. Later, the
national Episcopal Church successfully sought to intervene on the side of the Los
Angeles Diocese and filed its own complaint in intervention against defendants. In
essence, both sides in this litigation, i.e., defendants on one side, and the Los Angeles
Diocese and Episcopal Church allied on the other side, claim ownership of the local
church building and property on which it stands.” (Episcopal Church Cases I, supra, 45
Cal.4th at p. 476, italics added.)

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III. “This Record,” As the Phrase Was Used
In Episcopal Church Cases I,
Included the Letter on Which
the Local Church Now Relies
The March 1991 letter that the local church now relies on to argue waiver
was itself part of the “record” before this court and the Supreme Court. Rule 8.120 of the
California Rules of Court define what is the “record on appeal” and subdivision (a)(1) of
the rule specifies that the “normal record on appeal” includes a “record of the written
documents from the superior court proceedings.”
The written documents from the superior court proceedings leading to the
appeal and subsequent grant of the petition for review included, as one might expect, a
trial court memorandum of points and authorities in support of the anti-SLAPP motion
brought by the local church -- the same anti-SLAPP motion that, along with a sustained
demurrer to a complaint in intervention by the general church, gave rise to the final
judgments that led to the appeal that led to the Supreme Court‟s opinion in Episcopal
Church Cases I. That memorandum of points and authorities argued the effect of the
March 1991 letter:
“Plaintiffs also have no probability of success on the merits of their trust
claim because the Diocese has already waived and promised not to assert any claim of
trust with respect to a large portion of St. James Church‟s property. In 1991, prior to
purchasing an adjacent parcel of property with funds donated directly to it for this
purpose by a major donor, and improving that property at a cost of several million
dollars, St. James Church sought and obtained a written promise that neither the Diocese
nor its bishop would ever assert a claim of ownership over that property. (Dale Decl., ¶
15, Exh. „I‟). In reasonable reliance on this promise, St. James Church acquired the
property, merged it with the existing property, conducted a multi-year capital campaign
among its membership, and built an entirely new complex of worship, administrative and
office buildings across all of its property. (Id., ¶ 16.) Plaintiffs are therefore estopped

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from asserting any claim to ownership, whether by trust or otherwise, with respect to this
property.” (Italics added.)
The Dale declaration referred to in the points and authorities was indeed the
March 1991 letter. Dale, himself one of the directors of the local church, said in his
declaration: “At no time after acquiring these properties has St. James Church ever
conveyed them to, or stated any intent to hold its property in trust for, any of the
Plaintiffs. ¶ In fact, in 1991, prior to St. James Church purchasing the adjacent property
at 505 32nd Street, its president and chief executive officer, the Reverend David C.
Anderson (along with the member wishing to donate the necessary funds), requested and
received from the Diocese a letter confirming that St. James Church would own and hold
this property for itself, and promising not to assert any claim of trust or other ownership
over the property to be purchased. A true and correct copy of this written waiver letter,
kept in the ordinary course of business in St. James Church‟s files, is attached as Exhibit
„I.‟”
We quote the entirety of the letter in the margin.2 The local church‟s points
and authorities faithfully characterized it as the basis of a waiver and estoppel argument.
That is, “this record” included what might be the local church‟s reliance point involving
the March 1991 letter.
And the waiver point was indeed addressed by the Supreme Court in
Episcopal Church Cases I, in this passage: “Defendants state that, over the years, St.
James Parish „purchased additional parcels of property in its own name, with funds
donated exclusively by its members.‟ They contend that it would be unjust and contrary
2 The context of the letter was a proposed acquisition of adjacent property to then-extent church property on 32nd
Street in Newport Beach.
The letter, addressed to the Rev. David C. Anderson, said:
“This is to confirm our conversations and my previous correspondence to you about the possible acquisition of
additional property. ¶ Please know that the position of Bishop Borsch and the Diocese is as follows: ¶ The Rector,
Wardens and Vestry of Saint James‟ Parish, Inc. of Newport Beach, are given permission by the Bishop of Los
Angeles, the Rt. Rev. Frederick H. Borsch, to purchase and own the property on 32nd Street in Newport Beach, in
the name of the Rector, Wardens and Vestry of Saint James‟ Parish, Inc. and not held in trust for the Diocese of Los
Angeles, or the Corporation Sole. ¶ I trust this will be sufficient. If not, please do not hesitate to contact me. ¶ This
comes with my best wishes. ¶ Faithfully in Christ, ¶ The Rev. Canon D. Bruce MacPherson, Canon to the Ordinary
and Attorney in-Fact for the Bishop of Los Angeles.”

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to the intent of the members who, they argue, „acquired, built, improved, maintained,
repaired, cared for and used the real and personal property at issue for over fifty years,‟ to
cause the local parish to „los[e] its property simply because it has changed its spiritual
affiliation.‟ But the matter is not so clear. We may assume that St. James Parish‟s
members did what defendants say they did for all this time. But they did it for a local
church that was a constituent member of a greater church and that promised to remain so.
Did they act over the years intending to contribute to a church that was part of the
Episcopal Church or to contribute to St. James Parish even if it later joined a different
church? It is impossible to say for sure. Probably different contributors over the years
would have had different answers if they had thought about it and were asked. The only
intent a secular court can effectively discern is that expressed in legally cognizable
documents. In this case, those documents show that the local church agreed and
intended to be part of a larger entity and to be bound by the rules and governing
documents of that greater entity.” (Episcopal Church Cases I, supra, 45 Cal.4th at pp.
492-493, italics added.)
IV. The High Court‟s Conclusion Was
Framed in Terms of Present
Ownership by the General Church
The high court‟s conclusion was framed in terms of current ownership:
“Applying the neutral principles of law approach, we conclude, on this record, that the
general church, not the local church, owns the property in question.” (Episcopal Church
Cases I, supra, 45 Cal.4th at p. 473, italics added.)
The conclusion was also framed in present tense terms: “Although the
deeds to the property have long been in the name of the local church, that church agreed
from the beginning of its existence to be part of the greater church and to be bound by its
governing documents. These governing documents make clear that church property is
held in trust for the general church and may be controlled by the local church only so
long as that local church remains a part of the general church. When it disaffiliated from

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the general church, the local church did not have the right to take the church property
with it.” (Episcopal Church Cases I, supra, 45 Cal.4th at p. 473, italics added.)
And it was further reiterated in a passage dealing with a statute passed long
prior to the March 1991 letter: “Section 9142, subdivisions (c) and (d), does not permit
state interference in religious doctrine and leaves control of ecclesiastical policy and
doctrine to the church. Subdivision (c) of that section permits the governing instruments
of the general church to create an express trust in church property, which Canon I.7.4
does. Subdivision (d) permits changing a trust, but only if done in the instrument that
created it. Canon I.7.4 has not been amended. So it would appear that this statute also
compels the conclusion that the general church owns the property now that defendants
have left the general church.” (Episcopal Church Cases, supra I, 45 Cal.4th at pp. 488-
489, italics added and original italics deleted.)
V. The High Court‟s Conclusion Was
Based on the Concept that the
Property Had Already Reverted to the General
Church As a Matter of Law
In the context of discussing federal precedent on point, the Episcopal
Church Cases I opinion used the words “conclusion” -- as in its own conclusion -- and
“reverted” -- as in a legal result already accomplished by operation of law -- in the same
sentence: “Thus, the high court‟s discussion in Jones v. Wolf, supra, 443 U.S. at page
606 together with the Episcopal Church‟s adoption of Canon I.7.4 in response, strongly
supports the conclusion that, once defendants left the general church, the property
reverted to the general church.” (Episcopal Church Cases I, supra, 45 Cal.4th at p. 487,
italics added.)

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VI. The High Court‟s Judgment
Was Also Framed in Terms of Current
Ownership by the General Church
Because of a Prior Reversion
The Episcopal Church Cases I opinion framed the record below this way:
“The Court of Appeal consolidated the appeals and reversed the judgments. That court
ruled that the action was not a SLAPP suit subject to the special motion to strike, and that
the higher church authorities, not defendants, own the disputed property.” (Episcopal
Church Cases I, supra, 45 Cal.4th at p. 476, italics added.)
The point was made a second time: “For these reasons, we agree with the
Court of Appeal‟s conclusion (although not with all of its reasoning) that, on this record,
when defendants disaffiliated from the Episcopal Church, the local church property
reverted to the general church. (Episcopal Church Cases I, supra, 45 Cal.4th at p. 493,
italics added.)
And it was the judgment of the Court of Appeal, stated in one place in the
present tense that “the higher church authorities, not defendants, own the disputed
property” and in another place in the past tense that the property has already “reverted to
the general church,” which was the judgment of the Supreme Court: “We affirm the
judgment of the Court of Appeal, which reached the same conclusions, although not
always for the same reasons.” (Episcopal Church Cases I, supra, 45 Cal.4th at p. 473.)
VII. Justice Kennard In Her Concurrence
Also Understood the Majority Opinion to State
the Present Tense Ownership of the Property
By the General Church
Justice Kennard, in her separate concurring opinion, understood that actual
ownership was being determined: “Ownership of the property is at issue here.”
(Episcopal Church Cases I, supra, 45 Cal.4th at p. 493 (conc. opn. of Kennard, J.), italics
added.)

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And she read the majority opinion, as do we, to say that the general church
“owns” -- present tense -- the subject property: “I agree with the majority that the
Protestant Episcopal Church in the United States of America (Episcopal Church) owns
the property to which St. James Parish in Newport Beach (St. James Parish) has held title
since 1950. (Episcopal Church Cases, supra, 45 Cal.4th at p. 493 (conc. opn. of
Kennard, J.), italics added.)
Indeed, the majority‟s decision on the issue of who now owns the 32nd
Street property was integral to the reason Justice Kennard wrote separately. Remember:
When the case was before this court the first time around, this court followed the
“principle of government approach.” And in the briefing to the Supreme Court, the
general church advocated the principle of government approach.
By contrast, it was the local church that advocated, first to this court and
then later to the Supreme Court, the “neutral principles” approach. And guess what. The
Supreme Court adopted the neutral principles approach advocated by the local church!
So why did the local church lose? The only way that the judgment of the
Court of Appeal could possibly have been affirmed was if the result required by the
neutral principles approach adopted by the Supreme Court yielded the same result as the
principle of government approach used by the lower court.
And that was why Justice Kennard wrote a concurring and not a dissenting
opinion. As Justice Kennard understood the case, it was that the general church who had
won the dispute over the property -- remember, under the majority‟s approach the general
church had lost the dispute over which rule of law to apply.
Thus, after a discussion of the operation of Corporations Code section
9142, Justice Kennard wrote: “Applying California‟s statute [section 9142] in resolving
church property disputes, the majority concludes that the Episcopal Church now is the
owner of the St. James Parish property in question. I agree.” (Episcopal Church Cases,
supra, 45 Cal.4th at p. 495 (conc. opn. of Kennard, J.), italics added.)
“Now is the owner.” Not a phrase hedged with qualification.

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Justice Kennard then hastened to add: “But that conclusion is not based on
neutral principles of law. No principle of trust law exists that would allow the unilateral
creation of a trust by the declaration of a nonowner of property that the owner of the
property is holding it in trust for the nonowner. . . . . If a neutral principle of law
approach were applied here, the Episcopal Church might well lose because the 1950
deed to the disputed property is in the name of St. James Parish, and the Episcopal
Church‟s 1979 declaration that the parish was holding the property in trust for the
Episcopal Church is of no legal consequence.” (Episcopal Church Cases I, supra, 45
Cal.4th at p. 495 (conc. opn. of Kennard, J.), italics added and fns. omitted.)
Thus, Justice Kennard, as do we here, understood the majority opinion to
have established that the general church had “won” the case: “But under the principle of
government approach, the Episcopal Church wins because that method makes the
decision of the highest authority of a hierarchical church, here the Episcopal Church,
binding on a civil court. This result is constitutional, but only because the dispute
involves religious bodies and then only because the principle of government approach,
permissible under the First Amendment, allows a state to give unbridled deference to the
superior religious body or general church.” (Episcopal Church Cases I, supra, 45 Cal.4th
at p. 495 (conc. opn. of Kennard, J.), italics added.)
VIII. Four Small Modifications
A. The Modifications Themselves
Episcopal Church Cases I was initially filed January 5, 2009. The Supreme
Court modified its opinion by order filed February 25, 2009. The order made four
changes. It expressly stated that the modification did not “affect the judgment.”
Two of the changes were to insert the appositive clause “on this record” in
two summarizing sentences.
Thus, on page 473, of the official reporter, in the introductory portion of the
opinion summarizing its conclusion, the Supreme Court inserted the phrase “on this
record” in a sentence that was saying the general church and not the local church now
“owns” the disputed property: “Applying the neutral principles of approach, we

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conclude, on this record, that the general church, not the local church, owns the property
in question.” (Episcopal Church Cases I, supra, 45 Cal.4th at p. 473.)
The court did the same thing on page 493, in its final substantive paragraph,
which continued to use the word “reverted”: “For these reasons, we agree with the Court
of Appeal‟s conclusion (although not with all of its reasoning) that, on this record, when
defendants disaffiliated from the Episcopal Church, the local property reverted to the
general church.” (Episcopal Church Cases I, supra, 45 Cal.4th at p. 493.)
The third modification was in a sentence on page 476 that was summarizing
the procedural history of the case to that point. This passage substituted the word
“address” where the original had read “decide.” Thus the original read: “We granted
review to decide both whether this action is subject to the special motion to strike under
Code of Civil Procedure section 425.16 and the merits of the church property dispute.”
The modified text read: “We granted review to decide both whether this action is subject
to the special motion to strike under Code of Civil Procedure section 425.16 and to
address the merits of the church property dispute.” (Episcopal Church Cases I, supra, 45
Cal.4th at p. 476.)
The final fourth modification was on page 478, to the introductory
paragraph right under the (unchanged) heading “Resolving the Dispute over the Church
Property.” This modification substituted “addressed” for “decided” in the context of
discussing what the lower courts had done. It also substituted the word “analyze” where
the original had said “resolve.” The original had read: “Both lower courts also decided
the merits of the dispute over ownership of the local church -- the trial court in favor of
the local church and the Court of Appeal in favor of the general church. We will also
decide this question, which the parties as well as various amici curiae have fully briefed.
We will first consider what method the secular courts of this state should use to resolve
disputes over church property. We will then apply that method to resolve the dispute of
this case.” The new text, post-modification, read: “Both lower courts also addressed the
merits of the dispute over ownership of the local church -- the trial court found in favor of
the local church and the Court of Appeal found clear and convincing evidence in favor of

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the general church. We will also address this question, which the parties as well as
various amici curiae have fully briefed. We will first consider what method the secular
courts of this state should use to resolve disputes over church property. We will then
apply that method to analyze the dispute of this case.” (Episcopal Church Cases I, supra,
45 Cal.4th at p. 478, italics added.)
B. Their Significance
The California Supreme Court has systemic duties not fastened on the
intermediate courts of appeal. The Supreme Court‟s “purpose is to decide important legal
questions and maintain statewide harmony and uniformity of decision.” (Eisenberg, et
al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 13:1, p. 13-
1.) Thus it is not surprising that the reason the Supreme Court granted review in
Episcopal Church Cases I was “primarily to decide how the secular courts of this state
should resolve disputes over church property.” (Episcopal Church Cases I, supra, 45
Cal.4th at p. 473, italics added.)
Even so, the California Supreme Court has a “well-established rule” against
issuing advisory opinions. (Neary v. Regents of University of California (1992) 3 Cal.4th
273, 284 [“The well-established rule is that we should avoid advisory opinions.”]; People
ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912 [“The rendering of advisory
opinions falls within neither the functions nor jurisdiction of this court.”]; Younger v.
Superior Court (1978) 21 Cal.3d 102, 119-120 [following Lynch, and explaining that
Lynch‟s rule against the “„rendering of advisory opinions‟” is “equally binding on us
today”].)
We have already seen that the phrase “on this record” includes the March
1991 letter that prompted the trial court in the writ proceeding before us to deny the
general church‟s motion for judgment on the pleading. “This record” included the March
1991 letter. And that fact was brought to the Supreme Court‟s attention in the opposition
to the petition for modification. Using the phrase “this record” was thus an elegant way
of disposing of the specificities of the March 1991 letter. “This record” became the

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equivalent of a memo to the lower courts: “The argument has already been made -- just
look in „this record.‟”
So -- are we to believe that the two other modifications converted
Episcopal Church Cases I into an advisory opinion -- in which the court‟s words
“reverted” and “now owns” become merely a result on a ““„hypothetical state of facts”‟”?
(People v. Slayton (2001) 26 Cal.4th 1076, 1084; People v. Chadd (1981) 28 Cal.3d 739,
746 [“We will not ... adjudicate hypothetical claims or render purely advisory
opinions”].)
No. Remember that the Supreme Court has a systemic role of assuring
“uniformity of decision,” and, in the exercise of that systemic role, used the Episcopal
Church Cases I as the occasion to self-consciously “adopt” the “neutral principles of law
approach” for use in California. (See Episcopal Church Cases I, supra, 45 Cal.4th at p.
473.) Using “address” for “decide” and “analyze” for “resolve” emphasized the high
court‟s institutional role of declaring the proper rule of decision for all the courts of the
state. Note, in this regard, that “address” is a term regularly used by courts in the
substantive discussion of the merits of a case. Lower court exegesis of higher court
opinions has in fact treated “address” as a synonym for “resolve.” (E.g., City of
Richmond v. Superior Court (1995) 32 Cal.App.4th 1430, 1436 [noting previous
Supreme Court opinion had not “addressed” certain issue but “only resolved” certain
“narrow issues”].)
Beyond that, the Supreme Court could easily, had it decided to, have
qualified its “reverted” and “now owns” language with a small footnote to the effect that
there might still be arguments as to the claim of the local church that had not yet been
considered and so “reverted” and “now owns” was to be understood in some
metaphysical, advisory sense. It didn‟t do any such thing, and the one qualification of
adding “on this record,” as we have seen, actually reinforced the finality of the
determination of ownership.
We also note that the majority in Episcopal Church Cases I, in making the
modification, did nothing to try to disabuse Justice Kennard of her reading of the

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majority opinion (i.e., her statements that the general church “owns the property” and the
general church “is now the owner of the St. James Parish in question”). There was no
footnote to say, for example, “in light of these modifications, our concurring colleague‟s
characterization of our decision today that the general church „now is the owner‟ of the
property in question is perhaps premature,” or something like that.
Finally, despite the substitution of the word “analyze” for “resolve” in one
instance, the post-modification opinion left the word resolve intact in the topic heading
applying neutral principles to the case at hand, where it wrote, “Resolving the Dispute of
This Case.” (Episcopal Church Cases I, supra, 45 Cal.4th at p. 485.) The court did not
introduce that section of the opinion with the words, “Thinking About the Right Rule to
Govern the Dispute of This Case” or “Analyzing the Dispute of this Case” or other such
locutions. The court left it at “Resolving the Dispute of This Case.” (Italics added.) The
dispute between the litigants was over who gets the property on 32nd Street in Newport
Beach, not the relatively abstruse question of whether California courts should use a
neutral principles, as distinct from a principle of government, approach, in generally
analyzing church property cases.
IX. Disposition
Let a writ issue requiring the Superior Court of Orange County to vacate its
order denying the motion of the Episcopal Church and Los Angeles Diocese for judgment
on the pleadings, and to enter a new order granting that motion.
Petitioners shall recover their costs in this proceeding.
SILLS, P. J.
I CONCUR:
MOORE, J.

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MOORE, J., Concurring.
Until I read the dissent, it did not occur to me the Supreme Court
meant anything other than exactly what its opinion states. That is, aware of the
dangers involved “[w]hen secular courts are asked to resolve an internal church
dispute over property ownership,” the court applied the neutral principles of law
approach and decided “the general church, not the local church, owns the property
in question.” (Episcopal Church Cases (2009) 45 Cal.4th 467, 472-473.)
Hence the dissent spurred me to investigate whether or not the
California Supreme Court is hesitant or unclear in its directions to lower courts
when issuing opinions involving either demurrers or motions to strike under
California Code of Civil Procedure, section 425.16. What I discovered confirms
my first reaction.
The Supreme Court is quite clear with its instructions when further
action is required: “The Court of Appeal‟s judgment is reversed. The matter is
remanded to the Court of Appeal with directions to affirm the trial court‟s order
insofar as it granted the anti-SLAPP motion, to reverse the trial court‟s order
insofar as it denied that motion, and to remand the matter to the trial court for
further proceedings consistent with this opinion.” (Club Members For An Honest
Election v. Sierra Club (2008) 45 Cal.4th 309, 321.) “We reverse the judgment of
the Court of Appeal and remand the case for further proceedings consistent with
our opinion.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
298.) “We reverse the judgment of the Court of Appeal and remand the case to
that court for further proceedings consistent with this opinion. (Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1066.) “We reverse the judgment of the Court of Appeal
and remand with instructions that the matter be returned to the trial court for
reinstatement of its previous order denying the award of attorney fees and costs.”
(S. B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 383.) “We reverse the

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judgment of the Court of Appeal with instructions to remand the case for a new
trial in accordance with our opinion.” (Varian Medical Systems, Inc. v. Delfino
(2005) 35 Cal.4th 180, 201, fn. omitted.) “We reverse this portion of the Court of
Appeal‟s judgment, and instead remand for proceedings consistent with the views
expressed in this opinion.” (Gerawan Farming, Inc. v. Kawamura (2004) 33
Cal.4th 1, 28.) “The judgment of the Court of Appeal affirming the award of
attorney fees in the present case is reversed, and the cause is remanded for
proceedings consistent with the views expressed in this opinion.” (Graham v.
DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 584.) “Accordingly, we reverse
the judgment of the Court of Appeal and remand the matter for further
proceedings consistent with our opinion.” (Winter v. DC Comics (2003) 30
Cal.4th 881, 892.) “Accordingly, we shall reverse the judgment of the Court of
Appeal. But because the Court of Appeal did not consider whether plaintiffs have
established a probability of prevailing ([Code of Civ. Proc.,]§ 425.16, subd. (b)),
we shall remand the cause to permit the court to address that question in the first
instance. On reconsideration, therefore, the Court of Appeal should consider
whether plaintiffs‟ fraud and contract claims have the minimal merit required to
survive an anti-SLAPP motion.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 95.)
“We believe the trial court was correct to find [Government Code] section 66022
applicable, and the Court of Appeal erred when it concluded otherwise.
Accordingly, we reverse the judgment of the Court of Appeal and remand for
further proceedings consistent with this opinion.” (Utility Cost Management v.
Indian Wells Valley Water Dist. (2001) 26 Cal.4th 1185, 1199.) “For the
foregoing reasons, we reverse the judgment of the Court of Appeal and remand the
matter for further proceedings consistent with this decision.” (Lolley v. Campbell
(2002) 28 Cal.4th 367, 380.) “For the foregoing reasons, we affirm the judgment
of the Court of Appeal and remand the case with directions that it be remanded in

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turn to the superior court for recalculation of attorney fees consistent with the
views expressed herein.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1142.)
“The judgment of the Court of Appeal is affirmed insofar as it reversed the order
denying GWFSC‟s petition to compel arbitration. The judgment is reversed
insofar as it directed the trial court to conduct jury trials on plaintiffs‟ claims of
fraud in the inception. The cause is remanded to the Court of Appeal with
instructions to direct further proceedings in the trial court consistent with our
opinion.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th
394, 431.) “Accordingly, we find it appropriate to remand the matter to the Court
of Appeal, with directions that it remand to the trial court for further proceedings
consistent with this opinion. [Citations.]” (Linder v. Thrifty Oil Co. (2000) 23
Cal.4th 429, 449.) On the other hand, when no further action is required, the
matter is affirmed, just as in this case: “As explained above, although we
conclude that the Court of Appeal applied an incorrect standard in evaluating the
validity of the City‟s conduct, we nonetheless conclude that the appellate court
reached the correct result in upholding the trial court‟s order granting defendants‟
motion to strike the supplemental complaint. Accordingly, the judgment of the
Court of Appeal is affirmed.” (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 41.)
MOORE, J.

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FYBEL, J., Dissenting.
INTRODUCTION AND SUMMARY
I respectfully dissent because the majority and I differ in our interpretation
of the Supreme Court‟s disposition and the meaning of the Supreme Court‟s opinion in
Episcopal Church Cases (2009) 45 Cal.4th 467. I believe the disposition of the Supreme
Court‟s opinion, which affirms without change the disposition of our previous opinion
(Episcopal Church Cases (June 25, 2007, G036096)), does not authorize the
unprecedented result of entering judgment in favor of plaintiffs.1 I respectfully suggest
that these differences can best be resolved by a grant of review with an order from the
Supreme Court setting forth the procedures to be followed by the trial court. I do not
suggest the Supreme Court “rewrite” its opinion as described by the majority.
The majority by its opinion grants relief to plaintiffs that would enter
judgment in favor of plaintiffs after the overruling of defendants‟ demurrer and denial of
defendants‟ motion to strike under the anti-SLAPP (strategic lawsuit against public
participation) statute (Code Civ. Proc., § 425.16). This result is unprecedented and
without any basis in law. As aptly described by defendants‟ return in this proceeding,
entry of judgment for plaintiffs at this procedural stage is “revolutionary.” I can write
with certainty that this is the only case in the history of California where entry of
judgment has been ordered upon overruling a demurrer and denial of an anti-SLAPP
motion. Any case or statutory authority supporting the majority‟s order to enter judgment
for a plaintiff after the overruling of a demurrer and denial of an anti-SLAPP motion is
conspicuous by its absence from the majority opinion. The majority opinion
1 Plaintiffs and petitioners (plaintiffs) are the “general church” as referred to in the
majority opinion, and defendants and real parties in interest (defendants) are the “local
church” as referred to in the majority opinion.

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acknowledges this procedural posture (maj. opn., ante, at p. 5) but then does not deal at
all with its legal effect.
The basic principles governing this case are straightforward and should
have led to the denial of the writ petition and agreement with the trial court‟s ruling.
Both this court and the Supreme Court agreed the subject complaints stated a cause of
action and the demurrer should have been overruled. Both this court and the Supreme
Court agreed the anti-SLAPP motion should have been denied. This court‟s disposition
reversed the judgment entered by the trial court after it erroneously sustained the
demurrer and granted the motion to strike. This court remanded for “[f]urther
proceedings” (Episcopal Church Cases, supra, G036096) and the Supreme Court
affirmed that disposition (Episcopal Church Cases, supra, 45 Cal.4th at p. 493).
On remand, the trial court denied plaintiffs‟ motion for judgment on the
pleadings, correctly ruling that plaintiffs must prove their case with evidence addressing
the merits, and defendants should be allowed to file an answer denying or admitting the
allegations and asserting affirmative defenses and defend themselves with evidence on
the merits.
The majority opinion does not take issue with any of the principles
regarding demurrers and anti-SLAPP motions I explain in this dissent, yet it grants the
writ petition. Why? The majority opinion rests entirely on quotes from the Supreme
Court‟s opinion concerning ownership rights interpreted under the neutral principles
approach. But all of those statements by the Supreme Court were in the context of
determining the sufficiency of the complaints‟ allegations. Those statements naturally
and correctly treated those allegations as true in analyzing whether a demurrer should
have been sustained or overruled. I read those quotes in the context of a ruling on a
demurrer; the majority does not, and that is where we part company.

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THE DISPOSITION OF THE SUPREME COURT’S OPINION
California Rules of Court, rule 8.528(a) provides: “After review, the
Supreme Court normally will affirm, reverse, or modify the judgment of the Court of
Appeal, but may order another disposition.” Our judgment reversed the dismissal of the
complaints entered in the trial court and remanded for further proceedings. (Episcopal
Church Cases, supra, G036096.) The Supreme Court‟s disposition read in full: “We
affirm the judgment of the Court of Appeal.” (Episcopal Church Cases, supra, 45
Cal.4th at p. 493.) Thus, the Supreme Court‟s disposition affirmed that judgment and left
it intact and unchanged; nothing in the Supreme Court‟s opinion expresses any other
disposition. Therefore, as the matter stands, the operative disposition was to reverse and
remand for further proceedings, not to enter judgment for plaintiffs.
The concurrence merely drives home my point: The Supreme Court meant
exactly what its opinion stated in the disposition. Both the majority opinion and the
concurrence studiously avoid quoting or addressing the Supreme Court‟s actual
disposition. None of the dispositions quoted in the concurrence‟s string cite deals with a
procedural posture resembling the one in this case. In my view, if the Supreme Court
truly wished to approve the unprecedented result of entry of judgment in plaintiffs‟ favor
after overruling a demurrer and denying an anti-SLAPP motion, the court would have
expressly and in no uncertain terms said so.
THE DEMURRER
A demurrer tests the sufficiency of a complaint. In ruling on a demurrer,
the court assumes all the well-pleaded allegations of the complaint to be true; if the
complaint states a cause of action, the demurrer is overruled. “It is not the ordinary
function of a demurrer to test the truth of the plaintiff‟s allegations or the accuracy with
which he describes the defendant‟s conduct. A demurrer tests only the legal sufficiency
of the pleading.” (Committee on Children‟s Television, Inc. v. General Foods Corp.

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(1983) 35 Cal.3d 197, 213; see Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493,
496 [court reviewing propriety of ruling on demurrer is not concerned with the
“plaintiff‟s ability to prove . . . allegations, or the possible difficulty in making such
proof”]; Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th
856, 867 [“„A demurrer challenges only the legal sufficiency of the complaint, not the
truth of its factual allegations or the plaintiff‟s ability to prove those allegations‟”].)
In this case, the trial court originally sustained the demurrer, but both this
court and the Supreme Court concluded (for different reasons) that the complaints did
state a cause of action. Neither our own opinion nor the Supreme Court‟s opinion was
“advisory.” We applied the principle of government approach and the Supreme Court
applied the neutral principles approach to the allegations of the complaints to determine
whether a cause of action was stated. Both courts determined that a cause of action was
stated.
As a result, the disposition of the Court of Appeal opinion stated, in full:
“The judgments of dismissal against the diocese and the national church are both
reversed. Further proceedings shall be consistent with this opinion. Appellants shall
recover their costs on appeal.” (Episcopal Church Cases, supra, G036096.) There was
nothing in this disposition supporting entry of judgment for plaintiffs. Instead, the
disposition was to the contrary: remand the case to the trial court for “[f]urther
proceedings.” (Ibid.)
The disposition of the California Supreme Court‟s opinion stated in full:
“We affirm the judgment of the Court of Appeal.” (Episcopal Church Cases, supra, 45
Cal.4th at p. 493.) There was nothing in the disposition ordering judgment to be entered
for plaintiffs.
The case was remanded on this basis. Plaintiffs asked the trial court to
enter judgment in their favor and the trial court declined, properly, following the

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Supreme Court‟s affirmance of our disposition. There is no authority—and the majority
cites none—that supports entry of judgment because a demurrer was overruled.
The procedural posture also explains the language used in the Supreme
Court‟s opinion. The majority opinion and plaintiffs rely exclusively on quotes from the
Supreme Court‟s opinion that speak in terms of plaintiffs owning the property in the
present tense. Defendants rely on the court‟s modifications to its opinion, namely the
ones adding the words “on this record,” changing the words “decided” or “decide” to
“addressed” or “address,” and changing the word “resolve” to “analyze.” (Episcopal
Church Cases, supra, 45 Cal.4th 467, mod. 45 Cal.4th 742a.) Defendants properly ask
what was the effect of those modifications if not to clarify that the Supreme Court was
not finally adjudicating the claims and ordering entry of judgment.
The Supreme Court‟s opinion is best understood in the context in which it
was actually written, namely, the Supreme Court treated all the allegations of the
complaints as true because it was reviewing a ruling on a demurrer. Employing
well-established authority cited ante, the Supreme Court phrased its opinion in terms of
ownership because those were the allegations of the complaints—nothing more, nothing
less—and the complaints stated a cause of action.
THE ANTI-SLAPP MOTION TO STRIKE
The trial court in this case originally granted defendants‟ anti-SLAPP
motion on the grounds that the complaints alleged protected activity and plaintiffs failed
to present a prima facie case of probability of prevailing on the merits.
In this case, the Supreme Court quoted the applicable test for an
anti-SLAPP motion from City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76: “[Code of
Civil Procedure] „[s]ection 425.16 requires that a court engage in a two-step process
when determining whether a defendant‟s anti-SLAPP motion should be granted. First,
the court decides whether the defendant has made a threshold showing that the

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challenged cause of action is one “arising from” protected activity. (§ 425.16,
subd. (b)(1).) If the court finds such a showing has been made, it then must consider
whether the plaintiff has demonstrated a probability of prevailing on the claim.‟”
(Episcopal Church Cases, supra, 45 Cal.4th at p. 477.)
Both this court and the Supreme Court decided that the first prong of the
anti-SLAPP test was not satisfied because the complaints did not allege protected activity
within the meaning of Code of Civil Procedure section 425.16, subdivision (b)(1).
Instead, the gravamen of the complaints alleged a real estate dispute. That was the end of
the Supreme Court‟s analysis and discussion of the anti-SLAPP motion. Because the
complaints did not allege protected activity, the Supreme Court did not address the
second prong of the anti-SLAPP test in its opinion. For this reason, the majority
opinion‟s attention to the prong of prevailing on the merits—and especially its extended
discussion of the March 1991 letter—is totally irrelevant.
The Supreme Court held defendants‟ anti-SLAPP motion should have been
denied. But the Supreme Court did not order entry of judgment against defendants on
that basis. The majority opinion does not, and cannot, cite any authority supporting entry
of judgment on the merits after denial of an anti-SLAPP motion. Indeed, the anti-SLAPP
statute itself is contrary to the majority‟s opinion. Code of Civil Procedure
section 425.16, subdivision (b)(3) expressly prohibits the use at a later stage of the case
of a court‟s determination that the plaintiff has established a probability of prevailing in
an anti-SLAPP motion.2
2 Code of Civil Procedure section 425.16, subdivision (b)(3) provides: “If the court
determines that the plaintiff has established a probability that he or she will prevail on the
claim, neither that determination nor the fact of that determination shall be admissible in
evidence at any later stage of the case, or in any subsequent action, and no burden of
proof or degree of proof otherwise applicable shall be affected by that determination in
any later stage of the case or in any subsequent proceeding.”

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AFTER FILING OF THE SUPREME COURT’S OPINION, PLAINTIFFS REPRESENT TO
UNITED STATES SUPREME COURT THAT THE CASE IS NOT FINAL
In their brief before the United States Supreme Court in opposition to a
petition for writ of certiorari, plaintiffs took the position that no jurisdiction existed to
review the decision of the California Supreme Court because “no final judgment or
decree has been rendered . . . .” (Boldface and capitalization omitted.) That was a
correct statement of the law for all the reasons I have explained in this dissent. Indeed,
before the filing of the California Supreme Court‟s opinion, plaintiffs never took the
position that judgment should be entered in their favor as a result of the overruling of the
demurrer and denial of the anti-SLAPP motion. In this proceeding, plaintiffs change
their position and argue they are entitled to judgment as a result of the Supreme Court‟s
opinion. Plaintiffs should not be permitted to argue lack of finality to the United States
Supreme Court and then later argue finality to the California state courts.
CONCLUSION
For all these reasons, I respectfully dissent.
FYBEL, J.

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