Filed 6/23/14 Pacific Southwest Dist. of the Church of the Brethren v. Church of the Brethren CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

PACIFIC SOUTHWEST DISTRICT OF THE CHURCH OF THE BRETHR EN ,
Plaintiff , Cross

- defendant and Appella nt ,

v.
CHURCH OF THE BRETHREN, INC. ,
Defendant , Cross

- defendant and Appellant;

CENTRAL KOREAN EVANGELICAL CHURCH et al

. , Defendants, Cross

- complainants and Re spondents. B 24 7729
(Los Angeles Country Super. Ct. No. B C 4 5 6826 )

APPEAL from a judgment of the Superior Court of Los Angeles Country , Malcolm H. Mackey , Judge. Affirmed in part, reversed in part , and remanded with
directions

. Gorm an & Miller, Kenneth L. Heisz , for Plaintiff , Cross

- defendant and Appellant
Pacific Southwest District of the Church of the Brethren

.2

Law Offices of Doonan & Doonan, D. Scott Doonan, for Defendant, Cross

defendant and Appellant Church of the Brethren, Inc.
Law Offices of Steven C. Kim & Associates
, Steven C. Kim and Gabriel Colorado, for Defendants, Cross

- complainants and Respondents Central Korean Evangelical Church and Jang Kyun Park

.

______________________________

Pacific Southwest District of the Churc h of the Brethren ( PS W D ) and Church of the Brethren, Inc. (COBI) 1 appeal from a judgment in favor of respondents Central Korean Evangelical Church (CKEC ) and its pastor Jang Kyun Park

. The judgment gave
CKEC an 86

- percent share and gave PSWD a 14

- percent share in the proceeds from any
sale of CKEC’s real property , which consists of three lots in the Koreatown neighborhood of Los Angeles

. Appellants argue CKEC holds the property in trust for the
Church of the Brethren. We conclude that PSWD is estopped fr om asserting a trust over the entire property because CKEC joined the denomination on assurances by church representatives that a trust would not apply to property it owned at the time of affiliation,
and at that time it already owned two of the three lot s

. We also conclude that PSWD may
assert a trust over the after

- acquired third l ot

. We affirm the judgment to the extent it ordered partition of the property by sale, but reverse and remand for a redetermination of
each part y ’ s share in the proceeds from any sale

.

FACTUAL AND PROCEDURAL SUMMARY The Church of the Brethren is a protestant church with a national office in Illinois

. It is divided into 23 districts. Local churches are subordinate to the district in which they are geographically located. PS WD is the district controlling local churches in California
and Arizona. The district conference, a meeting of delegates from local churches , is the

1 PSWD and COBI appear in parts of the record under their earlier legal names Pacific Southwest Conference and Church of the Brethren General Board.3

final authority on district policy and procedure. The district board manages the district as
authorized b y the district conference. The district executive is the executive officer of the
board who oversees the implementation of district work.
The annual c onference, composed of a standing committee and delegates from local churches, is the Church of the Bre thren’s highest legislativ e authority. Its standing committee, composed of district representatives, is the judicial body of the Church of the
Brethren. COBI is one o f four approved agencies of the annual c onference and its principal administrative body

. 2 The annual c onference decides matters of poli t y, which are compiled in the Church of the Brethren’s governing document , “Manual of Organization and Polity” (manual)

. At all relevant times, the manual provided that all local church property is held in
trust for the benefit of the Church of the Brethren. It also provides that all deeds of conveyances should include a restrictive covenant allowing title to vest in the district
board under certain conditions and requiring consent of the district board for

conveyances

. Under the restrictive covenant, title vests i n the district board “in trust

. . . only as a means of preserving property for the purposes of the Church of the Brethren

. This property has been purchased and developed by consecrated effort . . . by individuals who have been loyal to the principles of the Church of the Brethren.” 3 If a local church

2 COBI is not coextensive with the ecclesiastical body or denomination, which we refer to as the Church of the Brethren. (See Central Coast Baptist Assn. v. First Baptist Church of Las Lomas (2007) 171 Cal.App.4th 822, 855, quoting Wheelock v. First Presbyterian Church (1897) 119 Cal. 477, 485 [religious corpora tion is “a body separate and distinct from the church proper ” ] ; Berry v. Society of St. Pius X (1999) 69 Cal.App.4th 354, 372 [“a religious organization of church members or congregants coexists with the corporate entity”].)

3 The manual’s 1986 edition re ad that when the restrictive covenant results in vesting title in the district board as trustee, “it is understood that this action is taken only as a means of conserving for the Church of the Bre thren property which has been purchased and developed by con secrated effort . . . by individuals who have been loyal to the principles” of the Church of the Brethren. That language was revised to its current version by the 1987 annual conference. The 1987 annual conference also revised the trust provision in resp onse to Jones v. Wolf (1979) 443 U.S. 595 to “clearly establish a4

“attempts by either majority or unanimous vote to withdraw from the Church of the
Brethren district in which it is located . . . , any property tha t it may have shall be within the control of the district board and may be held for the designated purposes or sold or disposed of in such a manner as the district board, in its sole discretion, may direct .” Respondent CKEC was founded in 1979 and incorp orated as an independent
church in California in 1982. In 1985, respondent Park and a CKEC elder, Koo Kim, bought lots 48 and 49 for approximately $250,000
, then quitclaimed the property to Park
as trustee for CKEC. Between 1985 and 1987, Park visited th e Church of the Brethren’s
national office in Illinois and had conversations with various church leader s about establishing a relationship between the two churches. In March 1987, COBI sent CKEC the Parish Ministries Commission guidelines for receiving e stablished congregations as member churches. The guidelines set up a three

stage process of affiliation. The congregation and the Church of the Brethren were to get acquainted during a preliminary, “pre

- covenantal,” stage, lasting from several months to a year. The second, “covenantal,” stage, lasting from one to two years, was to be devoted
to an in

- depth study of the Church of the Brethren’s “history, doctrine, polity, and practice .” At the end of that stage, the congregation was to make a written req uest for recognition, “indicating formal action by the group, a proposed name, a plan for organization/charter including the property agreements and polity statements.” At the

t hird “confirmation and celebration ” stage, the congregation was to be received by the district conference. The district was to “[d]evelop a trust agreement on property issues,” and the district and the congregation were to sign “an agreement of trust.” 4

trust relationship.” The trust provision currently reads: “For the sake of uniformity and continuity in the ownership of the Church of the Brethren property, all property held by or for the use of a congregation, whether legal title is lodged in a corporation, a trustee or trustees, an unincorporated association or any other capacity, and whether the property is used in programs of the congregation or retained for the production of income, i s held, in trust, nevertheless, for the use and benefit of the Church of the Brethren.”

4 The 1987 annual conference revised the manual to add a new section on “Receiving Unrelated Congregations,” which reads: “When an organized congregation5

At some point during the affiliation process, Kwang Suk Kim, a Church of the
B rethren consultant for recruiting Korean churches, assured Park that no trust would be imposed on property CKEC owned before joining the Church of the Brethren. According to Kim, that was the position taken by Irv e n Stern, then

- PSWD’s chief executive

. P ark requested that the Church of the Brethren help CKEC buy an adjoining lot, so as to convince his deacons that it would be beneficial to move from independent status to becoming part of a denomination. Between 1987 and 1989, PSWD raised $250,000
toward s the purchase of lot 44, which adjoined lots 48 and 49. PSWD’s board approved
the purchase of this lot on condition that the transaction be governed by the manual, and
th at condition w as to be made clear to CKEC.
In September 1987, CKEC expressed its d esire to proceed to the second stage of
the affiliation process. By the fall of 1989, after CKEC had participated in various
denominational events and some of its members had attended annual and district
conferences
, Park advised PS W D that CKE C was ready to become a member congregation of the Church of the Brethren. PSWD’s delegates voted to receive it as a congregation at the district conference and seated Koo Kim as a delegate. T he following

year, Park was ordained as a minister of the Church of the Br ethren

. In 1990, a year after CKEC joined the denomination, PS W D paid $250,000 and

one

- half of the closing costs for the purchase of lot 44 , and was listed as its sole title

owner

. CKE C was respon sible for the remaining $70,000 on a loan carried by the seller. Also in 1990, CKEC applied to COBI for a $300,000 member church loan to build an additional sanctuary and pay off existing debts . Those included the $70,000 owed on lot 44 and $127,000 still owed on a commercial loan that had been used to pay off debt

seeks to a ffiliate with the Church of the Brethren, the district board shall initiate a series of exchange visits and conversations with the congregation to explore the theological, biblical and ecclesiastical perspectives and beliefs of each. If there proves to be potential for mutual compatibility and supportive participation, the district board shall recommend to district conference that the district and congregation enter into a year of dialogue and fellowship. During the ensuing year, the district board will r eview and evaluate the relationship and make recommendation to district conference for final action.”6

incurred during the original purchase of lots 48 and 49
, and for remodel ing the property

. PS W D co

- signed the promissory note for the COBI loan. In 1992, PSWD transferred lot 44 to itself and CKEC, and t he three lots were
consolidated

. Due to CKEC ’s financial difficulties, COBI allowed it to suspend payments on its loan in 1994

. In 1996, CKEC and PS W D co

- signed a promissory note for a $513,750 loan from COBI, which allowed CKEC to pay off the prior COBI loan
and a commercial bank loan it had obtai ned in the meantime, as well as to complete
construction of its church building. According to the manual, a local church is expected to recognize a foundational covenant “to support faithfully the program of the Church of the Brethren, recognizing
Annual Conference enactments . . . as having governing force in its life,” and to remain a member of the Church of the Brethren. The local church is to develop its constitution and bylaws “in harmony with the Church of the Brethren and district polity.” CKEC d id not amend its bylaws to harmonize them with these polities . But it held itself out as a member church, using the name “Central Evangelical Church of the Brethren” on its letterhead and church building. Park renewed his ordination in 2000 and 2005,

rea ffirming his vows, which included a vow to be subject to the Church of the Brethren’s “discipline and government.”
I n October 2006, Park sen t a letter to then

- PSWD executive Bryan Boyer
, citing financial difficulties due to declining membership and askin g for district approval of the church’s relocation and sale of its property. In November 2006, Boyer inform ed Park
that the district board had approved the sale on conditions that debts owed to COBI and
other institutions be paid off first from the procee ds of the sale , a new property be purchased , and any remaining funds be held in trust by PS W D for CKEC

. In an e

- mail
he sent Park in February 2007, Boyer recounted that Park had either disagreed with or misunderstood the conditions of the sale, and that B oyer and P ark had agreed to have an attorney review the matter. In subsequent correspondence, Boyer and attorney Cris Klingerman , who was retained by PSWD, advised Park the Church of the Brethren’s polity required that PS W D be listed as a trustee on the t itle of any new property to ensure7

reversion if CKEC ceased to b e “ a Church of the Brethren. ” Park also was told that if
CKEC decided to disassociate, the congregation would be allowed to keep the proceeds
of the sale of its church property after paying o ff the COBI loan and PSWD’s one

- half ownership interest in lot 44.
In July 2007, Boyer and Park discussed CKEC’s unwillingness to place a trust in
favor of PSWD on its new property, and Boyer told Park th is showed lack of trust on the congregation’s part

. Boyer advised CKEC it needed to provide a formal letter stating it
had voted to disassociate , and the district board would respond by letter agree ing to the
dis associa tion ; the property would be appraised , so that the proceeds from the sale of lot
44 co uld be divided between PSWD and CKEC ; and once the COBI loan wa s paid off
and PSWD received its share of the proceeds on lot 44, the rest of the proceeds would go to the CKEC congregation. In response , Park sent CKEC’s resolution to disassociate by
unanim ous vote

. In t he subsequent appraisal
, lot 44, which was used as a parking lot for the church, was valued at $930,000 . That sum amounted to approximately 28 percent of the total property value of $3,320,000

. T wo attempted sales of the property
, in 2007 and 2008
, were unsuccessful

. In various documents in connection with the second attempted sale, PSWD represented its interest in the e ntire property to be 14 percent. T he district board adopt ed a resolution for the sale of lot 44 and PSWD’s one

- half int erest in it, and for a proportio nate share in the closing costs. PSWD submitted escrow documents to that
effect. In March 2010, David Kraus of Gorman & Miller, PSWD’s new attorney , sent CKEC a letter advising that PSWD wanted to either enter into an agr eement with CKEC to sell the property
, or seek partition. In March 2011, PSWD filed a complaint for partition, claiming a 250/760 share
, or approximately one

- third of the value of the entire property. 5 In December 2011, PS W D applied ex

- parte for leave to file a first amended complaint. I n its application, i t represented that it had changed attorneys , and that i ts new

5 The 250/760 th share was based on PSWD’s contribution of $250,000 towards the purchase of lot 44 in 1990 and the alleged $760,000 value of the property at the time.8

attorney, Kenneth Heisz , also of Gorman & Miller
, “ learned that [ the church’s ] governing
documents dictated a different ecclesiastical and legal result

. ” The first amended complaint alleged that, i n October 2011, PSWD had made a formal demand that CKEC convey legal title of its property to PSWD based on the trust provisions in the manual
, and that CKEC had refused to do so

. The first amende d complaint also a lleg ed that
PS W D had not taken formal action to approve CKEC’s disaffiliation. PSWD assert ed a cause of action for breach of trust un der Corp orations Code section 9142, and sought injunctive and declaratory relief. COBI was named as a d efendant because of its interest
as a lender.
C KEC demurred on the grounds that the first amended complaint was barred by
the three

- year statute of limitation s in Probate Code section 16460 or the four

- year statute of limitation s in Code of Civil Procedu re section 343 ; that it failed to state a cause of
action bec ause the property was owned by P ark before CKEC jo ined the Church of the Brethren; that it was a sham pleading because it contradicted the allegations of the original complaint ; and that PS W D lac ked standing

. The trial court overruled the
demurrer.
CKEC then filed an answer , a sserting various defenses, including the statute of
limita tions, laches, waiver, and estoppel

. It also filed a cross

- complaint for partition, quiet title, breach of contr act , and rescission. The court sustained the demurrer in part with leave to amend, and CKEC filed a first amended cross

- complaint , alleging the same
four causes of action. The court denied PSWD’s motion for summary judgment because
of defects in the movi ng papers

. After a bench trial, the court found that no trust was created under Corporations Code section 9142 because there was no document showing that Park gave up the property in which he had an investment. In the alternative, the court found that P SWD had waived any trust by initially seeking only 14 percent of the proceeds of any sale and
then requesting a partition, and that it was unfair for PSWD to take CKEC’s entire property

. The court ordered that the property be sold to CKEC’s tenant unless PSWD procured a higher offer within 90 days. The court stated it would not “get into the9

percentage” of the proceeds to which PSWD would be entitled, but it mentioned “the 14 percent figure” and stated that the balance would be paid to CKEC, which would a lso be reimbursed for expenditures to enhance the value of the property. The proceeds of the
sale were to be determined after the sale. Respondents’ proposed statement of decision, which the court signed, included many additional findings, some of which went beyond or contradicted the court’s

pr evious rulings . Among those were findings that PSWD failed to exhaust its remedies
under the manual ; that PSWD lacked standing because it was not the beneficiary of any

trust ; t hat PSWD’s complaint was barred by the statute of frauds and statute of
limit at ions ; that CKEC never agreed to be bound by the manual ; that Kim, as an official representative of the Church of the Brethren, told Park that if CKEC joined the
denomination , no trust would be imposed on its real property; that because of these representations, no trust agreement was developed and no restrictive covenant was included in the deed for lot 44, even though that lot was acquired after CKEC joined the Church of the Brethren; that PSWD was e stopped from claimi ng more than a 14

- percent share in CKEC ’s property ; and that by agreeing to sell the property and divide the proceeds, PSWD had irrevocably waived the right to enforce any trust

. The statement of decision, and the ensuing judgment
, provided for the sale of the property to CKEC’s current tenant unless PSWD could obtain a better offer. It set PSWD’s share of the proceeds at 14 percent and C KEC ’s at 86 percent. It provided for PSWD’s proportional reimbursement of CKEC’s expenses relating to taxes, co nstruction, mortgages, interest, insurance, repairs, and maintenance of the entire property

. From its share of the proceeds, CKEC was to pay PSWD 14 percent of rents collected from the tenant and to pay off the COBI loan. The parties were to share propor tionally in the sale

costs. After PSWD and COBI appealed, the trial court ordered the sale of the property, directing the court clerk to sign the sale documents on PSWD’s behalf if PSWD refused

to sign. PSWD eventually posted an undertaking, which sta yed the trial court proceedings.10 DISCUSSION
I We have been asked to resolve a dispute over ownership of church property

. S ecular courts may resolve such disputes so long as they do not violate the First
Amendment to the United States Constitution by ad dressing matters of religious doctrine

or by infringing on the right to free exercise of religion. ( Episcopal Church Cases (2009) 45 Cal.4th 467, 478

– 479.) Under the “neutral principles of law” approach , California courts should resolve church property d isputes by consider ing “ sources such as the deeds to the proper ty in dispute, the local church’ s articles of in corporation, the general church’ s constitution, canons, and rules, and relevant statutes, including statutes specifically concerning religious pr operty, such as Corporations Code section 9142. ” [Citations.] ( Id

. at p. 485

. ) The courts should defer “ to the position of the highest ecclesiastical authority ” that has decided any points of religious doctrine involved in the dispute . ( Ibid .) Free ex ercise rights also require deference to the position of the general church on matters of internal church governance when “ local churches have submitted
themselves to the authority ” of the general church. ( I d . at pp. 486, 492.) We apply the neutral princ iples of law approach and interpret the churches’ governing documents de novo. ( Concord Christian Center v. Open Bible Standard
Churches (2 005) 132 Cal.App.4th 1396, 1408

– 1409.) T o the extent the application hinges on factual disputes , we review the reco rd for substantial eviden ce favorable to the judgment and draw all reasonable inferences in favor of the prevailing party

. ( Ibid .)
In Jones v. Wolf

, supra , 443 U.S . 595, the United States Supreme Court allowed
churches to ensure beforehand who would ret ain church property in case of a dispute by modify ing “ the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. ” ( Id. at p. 606.)
The court stated that “ the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.” ( Ibid .)11

In 1987, the legisla tive body of the Church of the Brethren modified the trust provisions in the manual, its governing document
, to comply with Jones v. Wolf
, supra , 443 U.S. 595. Respondents argue that th os e trust provisions are dispositive of the property dispute under Epi scopal Church Cases
, supra , 45 Cal.4th 467

. Appellants claim
that case is distinguishable because CKEC did not agree to be bound by the manual or the trust provisions, and the trust provisions a re unenforceable against it under the doctrines
of waiver and estoppel

. Episcopal Church Cases
, supra , 45 Cal.4th 467 involved a dispute over the ownership of the property of a local church that had disaffiliated from the Episcopal Church. ( Id . at p. 475.) The local ch urch held title to the property, but the Epi scopal
C hurch had adopted a canon providing that a local church’s property ‘ “ is held in trust’ for the general church and the diocese in which the local church is located .” ( Id . at p. 486.) The local church had promised to be bound by the constitution an d canons of the Episcopal Church in its application to organize as a parish and in its articles of incorporation . ( Id . at p p. 485

– 486.) The court held that, under Jones v. Wolf , the canon establishing a trust in favor of the general church strongly suppo rted the conclusion that the property reverted to the general church when t he local church disaffiliated. ( Episcopal Church Cases
, at p. 487.)
The court also held Corporations Code section 9142 compelled the conclusion that the general church owned the property. ( Episcopal Church Cases
, supra , 45 Cal.4th at
p. 488.) Subdivision (c)(2) of that section provides: “ No assets of a religious corporation are or shall be deemed to be impressed with any trust, express or implied, statutory or at
common law un less . . . [¶] and only to the extent that, the articles or bylaws of the corporation, or the governing instruments of a superior religious body or general church of which the corporation is a member, so expressly provide. ” 6 Subdivision (d) allows

6 Respondents contend this provision does not apply to lots 4 8 and 4 9 , which Park hold s as trustee for CKEC, but they cite no authority that property held in trust for a religious corporation is not that corporation’s asset. The manual cre ates a trust in “all12

amendm ent or dissolution of t rusts created by subdivision (c) (2) “ by amendment from time to time to the articles, bylaws, or governing instruments creating the trusts.

. . . ” The
court construed these statutory provisions to mean that, “ under California law, a trust is created by compliance with any one of the alternatives set forth in subdivision (c)(2), and it can only be altered or dissolved by amending the creating instrument. ” ( Episcopal
Church Cases
, at p. 489.) Respondents argue the court’s holding in Episcopal Church Cases
, supra , 45 Cal.4th 467 was necessarily based on the local church’s application to organize as a parish and on its articles of incorporation, which expressly declared its intent and agreement “ to be part of a larger entity and to be b ound by the rules and governing documents of that greater entity. ” ( Id. at p. 493.) They seek to distinguish the case
because , here, there is no writing memorializing CKEC’s agreement to be bound by the
manual
, and its articles of incorporation do not me ntion the Church of the Brethren

. The
court in Episcopal Church Cases cited with approval the proposition that ‘ “i n a hierar chically organized church, the “general church” can impress a trust on a local religious corporation of wh ich the local corporation is a “member” if the governing instruments of that superior religious body so provide. ’ ” ( Id . at p. 492.) We do not read the court’s recitation of facts supporting its holding as creating a requirement that membership in a general church and agreement t o be bound by its governing documents

can be established only by the local church’s express written agreement

. (See Episcopal
Church Cases , at p. 489, citing Guardian Angel Polish Nat. Catholic Church of L.A., Inc.
v. Grotnik (2004) 118 Cal.App.4th 919, 9 29

– 930 [listing various acts of local church showing intent to be part of national church].) It is undisputed that CKEC became a part of the Church of the Brethren when PSWD’s district conference received it as a member congregation. After that, CKEC
he ld itself out as “Central Evangelical Church of the Brethren,” and participated in various programs and events within PSWD and the general church. It benefitted

property held by or for the use of a congregation,” even when legal title is lodged in a trustee.13

financially from the relationship by acquiring lot 44 with funds contributed by PSWD and by ob taining member church loans from COBI that allowed it to repay its commercial bank loans and complete construction of its church building. Park was
ordained a s a Church of the Brethren minister, and he twice reaffirmed his ordination vows, which subjected him to the Church of the Brethren’s “discipline and government.” Since at least 1968, the manual has expressly provided that the annual conference is “the final authority of the Church of the Brethren in all matt ers of procedure, program, polit y, and di scipline.” Its actions “are directives for the whole life of the church
, and implementation is assumed to take place within a reasonable span of time,” without “acts
of enforcement or decree” and with channels of review when annual conference decisions

ar e questioned. The manual directs that a local church include a covenant in its
constitutions or bylaws “recognizing Annual Conference enactments of the Church of the
Brethren as hav ing governing force in its life, ” and agreeing to remain a member of the
C hurch of the Brethren. By its own terms, the manual assumes this directive will be duly implemented. We see no reason why such a covenant should not be implied where, as here, the general church’s governing document expressly anticipates that one will be included in the local church’s governing documents. The manual also provides that congregations “constantly need to examine and
renew their covenant with the denomination and to follow the counsel of the church.” In the “rare” case s of disagreement, th e goal is reconciliation, not dissent. In short, the basic assumption in the manual is that member churches will agree to be bound by annual conference enactments, disagreements w ill be the exception rather than the rule
, and they

w ill be resolved in supp ort of the enactments. The manual does not contemplate that a
member church w ill refuse to be bound at all , and the fact that CKEC did not amend its bylaws after joining the Church of the Brethren does not require the conclusion that the
manual i s not bin ding on it

. 7

7 At oral argument, responde nts’ counsel retreated from the position that CKEC was not bound by the manual at all, arguing only that CK EC did not agree to be bound by the manual’s trust provisions.14

Respondents argue CKEC did not agree to be bound by the trust provisions
because Kim , who acted as liaison and interpreter, and Stern , who was the district executive at the time, expressly represent ed that t he Church of the Brethren would no t interfere with the right of established churches to control property they owned before joining it. It is unclear when these representations were made during the affiliation

process, which lasted from 1985 to 1989 , but i n 1987, the annual conference made signifi cant revisions to the manual: I t revised its trust provisions pursuant to Jones v. Wolf and it adopted a provision for receiving unrelated congregations. Neither provision expressly exempted such congregations from the trust provisions , nor did t he manual require their express agree ment to those provisions. Appellants maintain that the representations made by Kim and Stern were unauthorized and of no legal effect because changes in polity require a two

- thirds majority vote at annual conference. Appellants also rely on the provision in Corporations Code section 9142 , subdivision (d) that a trust created by a general church’s governing instrument can be altered or dissolved only by amending the creating instrument

. (See Episcopal Church Cases
, sup ra , 45 Cal.4th at
p. 489

. ) Stern interpreted the trust provisions as not applying to property owned by established churches, an interpretation apparently supported by the stated assumption in the manual that a district may assert a trust over property “p urchased and developed . . . by individuals who have been loyal to the principles of the Church of the Brethren.”
There is no evidence that the annual conference has sole authority to interpret the trust provisions. But e ven assuming that Stern lacked ac tual authority to in effect waive th ose provisions, the record contains substantial evidence that the Church of the Brethren placed Stern and Kim in a position of ostensible authority to do so

. O stensible authority is such authority “ as a principal, inte ntionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.” (Civ. Code, § 2317; Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 438

– 439.) The
doctrine of ostensible authority rests on principles of es toppel and requires “representation by the principal, justifiable reliance thereon by the third party, and change15

of position or injury resulting from such reliance.” ( Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 450; see also 3 Witkin, Summary of Ca l. Law (10th ed. 2005) Agency and Employment § 96, p. 143.) E stoppel principles are “ neutral principles of law ” of general application
, “ which can be applied without ‘ establishing’ churches to which property is
awarded.” (See Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969) 393 U.S. 440, 449 .) Corporations Code section 9142
, subdivision ( b ) (3) incorporates such principles in providing that a court may “ rescind or enjoin the performance of a contract ” only if it is equitable to do so.
In the letter that accompanied the copy of the guidelines for receiving established congregations
, Park was advised that Stern and Kim would help CKEC to “ relat [e] to the se guidelines.” The guidelines specifically required the distr ict to “[d]evelop a trust agreement on property issues.” Kim was a paid consultant for the recruitment of Korean churches, and he acted as an interpreter for Park in his meetings with Stern. According to Kim, he and Stern “made it very clear” that establ ished Korean churches would not lose property they owned when they joined the Church of the Brethren because otherwise those churches would not have been interested in joining. Since Park was encouraged to discuss the guidelines with Kim and Stern, he was justified in relying on their representations that the trust provisions would not apply to property CKEC already
owned , and PSWD is estopped from assert ing a trust over lots 48 and 49

. T he record does not support appl ication of estoppel principles to lo t 44 since that lot was acquired after CKEC joined the Church of the Brethren. The vast majority of the funds for the purchase of this lot was contributed by PSWD, and t he purchase was approved on condition that the transaction be governed by the manual. That condition
was to be made clear to CKEC. It is unclear if it was
, because Park testified he did not
remember. But Kim did not testify about making any representation that after

- acquired property would be excluded from the trust provisions

. Upon pur chasing the lot, Stern
advised various Church of the Brethren officials that the district was named on the deed
of trust. There is no evidence that the subsequent transfer of the lot to PSWD and CKEC in joint tenancy was intended to waive the trust provis ions. Nor is the congregation’s16

development of the lot or repayment of the $70,000 loan to COBI such evidence. As the court explained in Episcopal Church Cases
, supra , 45 Cal.4th at pages 492

– 493 , it is impossible to be certain whether contributions made toward the purchase and development of property while the local church wa s a member of the general church were made for benefit of the local or general church. Respondents rely on the position taken by PSWD’s attorneys and executives, who appear to have waived the trust between 2007 and 2011 when they claimed a share in only half of lot 44. Respondents recognize that the inconsistent position PSWD took in its original complaint does not amount to a binding judicial admission because that complaint was s uperseded by the first amended complaint . (See Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 457

– 458 [statements in superseded pleadings may constitute evidentiary admissions or prior inconsistent statements , but party a gainst whom they are use d at tr i a l may controvert them ].) The explanation at trial was that a waiver was consistent with the Church of the Brethren ’s polity because the manual placed the property of a withdrawing congregation in the sole control of the district board
and at its discretion. To the extent the position taken by PSWD as to lot 44 depends on an interpretation of the Church of the Brethren’s governing document, it appears to be inconsistent with the requirement in the manual that the district board exercise its
discre tion “solely for the purpose of assuring that the property or its proceeds are not
diverted from use for the Church of the Brethren. ” Respondents ’ contention that PSWD’s waiver was irrevocable or that PSWD should be estopped from revoking it is not convi ncing without evidence that they would
suffer actual prejudice by revocation of the waiver as to lot 44 . (See Aceves v. U.S. Bank
N.A. (2 011) 192 Cal.App.4th 218, 225

– 226 [promissory estoppel requires injury from reasonable and foreseeable reliance on pro mise]; Kacha v. Allstate Ins. Co. (2006)
140 Cal.App.4th 1023, 103 5 [“ waiver may ordinarily be revoked absent a showing of prejudice ”]

. ) Respondents do not address this element , and exhibit 276 , which is cited in
the statement of decision as evidence of t heir total expenditures
, is not included in their appendix on appeal. The evidence adduced at trial indicates respondents have been17

renting out the church building for 10 years

. They have not been making full monthly payments on the COBI loan. There is no evidence that the rental income has been
insufficient to cover the property

- related expenses. Without such evidence we cannot
conclude that respondents would be prejudiced by the delay in PSWD’s assertion of a

trust o ver lot 44, of which they have made full use in the meantime

. We conclude that the manual creates an enforceable trust i n lot 44, but not i n lots
48 and 49. The trial court was correct in ordering a partit ion sale, but on remand must
redetermine the two churches’ share s in the proceeds , a nd their respective rights to reimbursement for rents and expenses as to lot 44

. II
R espondents’ remaining arguments are based on findings included in the s tatement of decision that the court did not make in the oral ruling

. Respondents argue PSWD
lacks s tanding to assert a breach of trust claim under Corporations Code section 9142
because it is not a person who may bring such a claim under subdivision (a) , namely the corporation, a member, or a former member ; an officer or director; and “[a] person with a reversionary, contractual, or property interest in the assets subject to such trust. ” T he
manual delegates to the districts the right to enforce the trust provisions and contemplates
that a district conference will have a reversionary interest in church property, may assert title to it, and have it vested in the district board, in trust, for the district. Under the manual, PSWD clearly has an interest in church property. It is a proper plaintiff under
the statute. Respondents also argue the action is barred by the statute of limitations in Probate
Code section 16460 or Code of Civil Procedure sections 338 or 343. This argument fails both factually and legally. T he statement of decision , which respondents drafted and the court adopted, includes a gene ral finding that the complaint “is barred by running of the statute of limitations. The cause of action for breach of trust and declaratory relief had accrued as of February 27, 2007 (Exh. 235).” The referenced exhibit is an e

- mail from
then

- PSWD executi ve Boyer to Park, recounting the latter’s disagreement with the
conditions on which the district board approved the sale of the property in 2006

. The18

district board’s conditions were that debts be paid off , a new property be purchased, and any remaining f

unds be held in trust by PSWD for CKEC

. None of these conditions
invoked a trust in favor of the Church of the Brethren. Thus, any disagreement about them is irrelevant to PSWD’s claim in the first amended complaint

. Moreover, t he statutes of limitati ons on which respondents rely are inapposite.
The three

- year statute of limitation s in Code of Civil Procedure section 338 , subdivision (a) applies to actions “on liab ility created by statute. ” Such a liability ‘ “ comes into being solely by statute and

. . . had no existence prior to the enactment creating it. Where liability would exist in some form irrespec tive of the statute, it is not ‘

. . . a liability created by statute. ” ’ [Citation.]” ( Brandenburg v. Eureka Redevelopment Agency (2007) 152 Cal.App .4th 1350, 13 62 .) As the court explained in Episcopal Church Cases
, supra , 45 Cal.4th at page 488, subdivisions (c) and (d) of Corporations Code section 9142 were
enacted in 1982 , and are consistent with Jones v. Wolf
, supra , 443 U.S. at page 606 , which t hree years earlier had sanctioned the creation of a trust in a general church’s governing instrument s. Liability for the breach of such a trust does not arise solely by

statute. The three

- year statute of limitation s in Probate Code section 16460 applie s only

“ on re ceipt by the beneficiary of an ‘ interim or final account in wr iting, or other written report’ by the trustee . . .[,]” circumstances not present in this case. (See Di Grazia v.
Anderlini (1994) 22 Cal.App.4th 1337, 1346.) The catch

- all four

- year statute of limitations in Code of Civil Procedure section 343 applies to actions “other than for the recovery of real property.” (See Code Civ. Pro., § 335.) The gravamen of PSWD’s cause of action under Probate Code section 16460 is the recovery of real property

. (See Episcopal Church Cases
, supra , 45 Cal.4th at p. 476 [describing complaint as “ alleging eight property

- recovery

- related causes of action ”].) An action for recovery or possession of real property is subject to the five

- year statute of l imitations in Code of Civil
Procedure section s 318 and 321

. ( Harrison v. Welch (2004) 116 Cal.App.4th 1084,
1095

– 1096 .) Respondents do not address th at statute of limitations.19 DISPOSITION
The judgment is affirmed as to lots 48 and 49 and reversed as to lot 44. The case
is remanded for redetermination of PSWD’s and CKEC ’s respective shares in the proceeds from the sale of church property

. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J. We concur:

WILLHITE, J.

MANELLA, J.