Filed 1/26/15 Ballin v. Roosevelt Memorial Park Assn. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

DORINA BALLIN,

Plaintiff and Appellant,

v.

ROOSEVELT MEMORIAL PARK 

ASSOCIATION, et al.

Defendants and Respondents.

 B225679

 (Los Angeles County

 Super. Ct. No. YC061667)

APPEAL from a judgment of the Superior Court of Los Angeles County, Dudley 

Gray, Judge. Affirmed.

Lurie, Zepeda, Schmalz & Hogan, Troy L. Martin and M. Damien Holcomb for 

Plaintiff and Appellant. 

Mitchell Silberberg & Knupp, Kevin E. Gaut and Emily F. Evitt for Defendants 

and Respondents.

_________________________
2

In 2003, the Roosevelt Memorial Park Association’s board of directors elected

Dorina Ballin to serve as a director. Ballin was reelected to her position at each of the 

board’s next five annual directors elections. In December of 2009, the board voted not to 

reelect her. Ballin filed an action under Corporations Code section 5617 arguing that the 

election should be invalidated because Roosevelt’s bylaws did not permit the board to 

elect directors on an annual basis. After a bench trial, the court ruled Ballin had waived 

or was otherwise estopped from asserting her claims because she had previously 

participated in the disputed election procedures without objection. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Ballin’s Complaint

The Roosevelt Memorial Park Association (Roosevelt) is a nonprofit public 

benefit corporation established to operate the Roosevelt Memorial Park cemetery. In 

2003, Roosevelt’s chairman, Fred Ballin, nominated his wife Dorina Ballin to serve as a 

director. During its annual regular meeting, Roosevelt’s board of directors held a 

directors election and unanimously voted in favor of Dorina Ballin (Ballin). The board 

reelected Ballin to her directorship at annual directors elections held in 2004, 2005, 2006, 

2007 and 2008.

1 Ballin participated in each such election without objection. At the 

board’s 2009 election, however, Ballin was not reelected, terminating her tenure as a 

director.

Ballin filed an action under Corporations Code section 56172to invalidate the 

2009 election. Ballin’s complaint alleged the board had voted not to reelect her because 

she had recently filed a breach of contract claim against the cemetery.

3 Ballin argued that 

 

1 As discussed in more detail below, the 2008 director’s election was originally 

scheduled to occur November of 2008, but was postponed until April of 2009.

2 Unless otherwise noted, all further statutory citations are to the Corporations 

Code.

3 Ballin’s breach of contract action, captioned Dorina Ballin et al. v. Roosevelt 

Memorial Park Association, Case No. YC060821, asserted that Roosevelt was wrongly 
3

the board’s practice of electing directors at its annual regular meeting (including the 2009 

election) violated multiple provisions set forth in Roosevelt’s bylaws. First, Ballin 

argued that the bylaws provided that each director’s term was for a period of three years,

barring the board from holding elections each and every year. Second, Ballin contended 

the bylaws only authorized Roosevelt’s members, not its board, to elect the directors.

4

Third, she alleged that even if the election was proper, the bylaws required that she 

remain a director until Roosevelt’s members held an election to appoint her replacement. 

B. Roosevelt’s Bylaws and Corporate Minutes

1. Ballin’s version of Roosevelt’s bylaws

Prior to trial, Ballin produced a copy of Roosevelt’s bylaws which she asserted she 

had received from another director shortly after the 2003 election. Article II of the 

bylaws sets forth provisions regarding Roosevelt’s directors. Article II, section 2 

states that Roosevelt is “authorized” to have seven directors. Article II, section 3, 

entitled “Election and Terms of Office,” states: “The Directors shall hold office for three 

years . . . . and the vacancies occurring in the Board of Directors by virtue of the 

expiration of their terms shall be filled as in these by-laws provided as such vacancies 

shall occur.” Section 4, titled “Vacancies,” states: “Vacancies in the Board of Directors 

may be filled by a majority of the remaining directors . . . and each director so elected 

shall hold office until his or her successor is elected. [¶] A vacancy or vacancies in the 

Board of Directors shall be deemed to exist in case of the death, resignation or removal of 

any directors, . . . or if the members fail at any annual or special meeting of members at 

 

withholding funds that were due to her under an agreement it had entered into with her 

late husband, Fred Ballin. The facts and claims at issue in the breach of contract action 

are not relevant to this appeal. 

4 “Nonprofit public benefit corporations do not have shareholders. [Citation]. 

Instead, they may (but are not required to) have members that are entitled to vote in the 

election of director . . . .” (Catholic Healthcare West v. California Ins. Guarantee Assn. 

(2009) 178 Cal.App.4th 15, 27, fn. 9 [citing § 5056].)
4

which any director or directors are elected, to elect the full authorized number of 

directors to be voted for at that meeting.” 

Article II, section 6, titled “Organization Meeting,” states: “Immediately 

following each annual meeting of members, the Board of Directors shall hold a regular 

meeting for the purpose of organization, election of officers, and the transaction of other 

business.” Section 12, titled “Quorum,” provides that “a majority of the authorized 

number of directors shall be necessary to constitute a quorum.” 

Article V of the bylaws govern Roosevelt’s “members,” which is defined to 

include “[e]very person of full age who is a duly qualified owner of record of one or 

more graves in Roosevelt Memorial Park cemetery.” Article V, section 2, titled “Meeting 

of Members,” provides that that an annual meeting of the members is to be held on the 

third Tuesday of every November. Sections 3 and 5 provide that each member is to have 

one vote in each election and that at least 51% of all members must be present to 

constitute a quorum. 

2. Roosevelt’s “official” bylaws

Roosevelt claimed that its “official” bylaws included an amendment that did not 

appear in Ballin’s version. The amendment added article II, section 4(a) which states: 

“Notwithstanding the provision of Sections 3 and 4 of the bylaws the term of office of 

any director may be on a year to year basis or as a majority of the directors so decide at 

any duly held meeting” (hereafter the section 4(a) amendment). Roosevelt also provided 

an undated, handwritten note it had recovered from its corporate minutes binder that 

allegedly referred to the section 4(a) amendment. The note stated: “Amended sec 3, Part 

II. The Board in the alternative [indecipherable] chose to elect directors at its annual 

meeting to hold office until the following annual meeting.” 

Roosevelt argued this amendment was permitted under article V of the Articles of 

Incorporation, which authorizes the board “to adopt, amend, alter, change, add to repeal, 

or rescind and any all By-laws . . . from time to time as in its judgment shall be deemed 
5

fitting and proper, without action or consent on the part of any person or persons 

whatsoever . . . .” 

3. Roosevelt’s official minutes

Roosevelt produced the corporate minutes from every annual members meeting 

and every annual board meeting that had been held since 1955. The minutes from every

annual members meetings state that no quorum was present and therefore no business had 

been transacted. The minutes from the board’s annual meetings held between 1955 and 

1958 include identical language stating: “The Chairman called the meeting to order and 

stated that it would be necessary for the directors to carry on from the succeeding year 

because there was not a quorum present at the lot owners’ meeting, and as a result 

thereof, no successor to the Board of Directors have been elected.” The minutes from the 

board’s annual meetings held between 1959 and 1972 do not include any language 

regarding the election of directors. The minutes from the board’s meetings held between 

1973 and 1990 include language stating that “all of the present directors were reelected to 

hold office for the ensuing year or until their successors are elected and qualified.” The 

minutes from the board’s meetings between 1991 and 2002 include similar language 

indicating that the board had nominated a group of between four and six individuals to 

serve as directors for the “ensuing year” and then voted to elect each of the nominees.5

The board’s minutes indicate that it continued to follow this procedure after Ballin 

became a director. The 2003 minutes state that the board nominated Dorina Ballin and 

six other candidates to serve as directors for the ensuing year. The board then voted on 

the seven candidates (most of whom were current directors) and unanimously elected all 

of them. The minutes from the 2004 and 2005 meeting state that the board nominated 

and elected six people (Ballin and five other current directors) to serve as directors for the 

 

5 Although Article II, Section 2 of the bylaws authorizes up to seven directors, the 

minutes reveal that during most years Roosevelt operated with between four and six 

directors.
6

ensuing year.

6

 The minutes from the 2006 and 2007 meetings state that the board 

nominated and elected five people (Ballin and four other current directors) to serve as 

directors for the ensuing year. The minutes from the 2008 board meeting, which was 

held in November, state that the 2008 annual member meeting had not yet been held and, 

as a result, the board’s “election of . . . directors” needed to be postponed. Minutes from 

a special board meeting held on April 25, 2009 state: “[President and Director Michael

G. Smith] noted the positions of the . . . Directors in the past have been reelected annually 

at the Board Meeting in November to serve for a one year term.” The notes further state 

that each of the six current directors (including Ballin) were then nominated and reelected 

to serve for the ensuing year.

The minutes of the 2009 regular meeting, held in December, state that Ballin had 

objected to the official minutes of the April 2009 special meeting. Ballin contended the 

minutes failed to note she had objected to the April 2009 elections on the basis that 

“directors serve for three-year terms.” According to the minutes, Malcolm Smith 

“reminded [Ballin] that as per . . . Fred Ballin’s past practices, the officers and directors 

were elected every year. This was his policy.” In response, Ballin stated “Directors are 

elected for a three year term. [Smith] asked if she was proposing we adopt a practice of 

electing directors to the board for a three year term as opposed to the yearly election we 

have done for decades. [Ballin] stated she doesn’t know what we are doing with the 

annual elections. [Director Robert Letteau] stated she could not be a director as she was 

suing the cemetery for her own personal gain.” Smith then nominated a list of directors 

that did not include Ballin; no other director nominated Ballin. The list was unanimously 

approved by the sitting directors, thereby terminating Ballin’s directorship. 

 

6 The 2004 minutes do not specifically reference an “election”; the notes state only 

that Roosevelt’s president had nominated a slate of directors and that the board 

unanimously approved all of the nominations.
7

C. The Parties’ Trial Briefs

1. Ballin’s trial brief

Ballin’s trial brief argued that the evidence would show that Roosevelt’s board 

became hostile toward her immediately after her husband, the former chair of Roosevelt, 

had died in 2006. According to the brief, Roosevelt’s “hostility culminated at an annual 

meeting of the Board Directors on December 12, 2009, at which Defendants purported to 

hold an illegal election of Directors in which all Directors were reelected but . . . Ballin.”

As in her complaint, Ballin asserted the election was illegal because “she had last been 

elected in April of 2009” and therefore “had at least two more years on her [three year] 

term.” In support, she cited to article II, section 3 of the bylaws, which states that each 

director shall hold office for three years. 

Ballin acknowledged that Roosevelt intended to argue that the “official” bylaws 

had been amended to add section 4(a), which permits the board to set the directors’ terms

at one year rather than three years. Ballin argued the court should “disregard” the section 

4(a) amendment because the corporate minutes did not indicate whether the board had

ever voted to approve the amendment. Ballin also argued Roosevelt was not permitted to 

rely on its past conduct to prove the amendment had been adopted. According to Ballin, 

California law prohibited the amendment of corporate bylaws based solely on past

“custom and practice.”

Ballin also asserted the board’s practice of holding annual directors elections was

“contrary to” provisions in the bylaws that required Roosevelt’s members, rather than its 

board, to elect directors. Ballin argued that article II, section 3 only permitted the board

to elect directors if the annual members meeting resulted in an election at which less than 

seven directors were elected. Ballin contended that if the members held such an election

at their annual meeting, the board was then permitted to elect directors for any of the 

seven positions the members had failed to fill. Ballin further contended, however, that if

the members did not hold an election at their annual meeting, the board had no authority 

to elect directors and the existing directors automatically retained their positions until the 

following members meeting. Ballin asserted that because the members had not held an 
8

election at their 2009 annual meeting (due to lack of quorum), the board had no authority

to hold the directors election that followed in December of 2009. 

Finally, Ballin asserted that even if board had acted appropriately in holding an

annual directors election, she was nonetheless entitled to continue serving as a director 

until the board elected her successor. In support, she cited language in section four of the 

bylaws stating: “Vacancies in the Board of Directors may be filled by a majority of the 

remaining directors . . . and each director so elected shall hold office until his or her 

successor is elected.”

Ballin’s trial brief requested that the court “order that she remain a [d]irector until 

her term of office expires and Roosevelt’s Members elect a successor to fill her vacancy.” 

2. Roosevelt’s trial brief

Roosevelt’s trial brief admitted that, under the bylaws, Roosevelt’s members were 

initially responsible for electing directors at the annual members meeting. It argued, 

however, that under the language of article II, section 3, the board was permitted to elect

directors whenever the members failed to hold an election at their annual meeting. 

Roosevelt argued this interpretation was supported by the corporate minutes, which 

demonstrated the board had been following this practice for over 30 years. 

Roosevelt also argued that the following evidence showed the section 4(a)

amendment was valid: (1) Roosevelt’s secretary had provided written certification that 

the version of the bylaws containing the amendment reflected Roosevelt’s “official” 

bylaws; (2) Roosevelt’s corporate minutes binder contained a note written by Fred Ballin 

referencing the amendment; and (3) the corporate minutes and witness testimony showed 

the board had been holding elections each and every year for the past several decades. 

Roosevelt contended that even if Ballin was able to show the board’s election 

procedures conflicted with the bylaws, she was precluded from challenging those 

procedures because she had participated in annual directors elections “each year without 

objection” until “2009 – the year she was not re-elected.” Roosevelt asserted that “by 
9

participating in each annual election since 2003,” Ballin had “waived” or was otherwise 

“estopped” from asserting her challenge to those procedures. 

D. Trial 

Three witnesses testified at the bench trial: Roosevelt’s general manager and 

secretary, Kathleen McLaughlin; plaintiff Dorina Ballin; and Roosevelt’s current

president and chairman, Malcolm Smith. 

McLaughlin testified that she had been maintaining Roosevelt’s corporate records

since 1991. She stated that the copy of the bylaws Roosevelt had produced for trial

(which included the section 4(a) amendment) were kept in a minute book within a vault 

at the cemetery. McLaughlin stated that, in her experiences, Fred Ballin had always 

relied on this copy when “he wanted to determine the official bylaws.” McLaughlin also 

testified about the handwritten note that referenced the section 4(a) amendment. She 

stated that the note appeared in volume 2 of Roosevelt’s official minutes book, which 

included materials from the 1970s. She also testified that the note appeared to be in Fred

Ballin’s handwriting. She admitted, however, that the official corporate minutes did not 

include any statements indicating whether the board had adopted the section 4(a)

amendment. 

McLaughlin also testified that, during her time as secretary, Roosevelt had held an 

annual members meeting every November but that a quorum was never present. 

Roosevelt provided notice of the annual members meeting by placing an informational 

pamphlet in the glass display case located in the entryway to the offices located at the 

cemetery. She further testified that she had attended every regular meeting of the board 

of directors since 1991 and that at each such meeting (with some limited exceptions due 

to lack of quorum) the board had conducted a directors election “for a period of one 

year.” McLaughlin also testified that Ballin had never objected to this election process at 

any time prior to December of 2009. 

Dorina Ballin testified that Fred Ballin had nominated her as a director in 

2002 and that the board had elected her to the position in 2003. Shortly after her election, 
10

co-director Robert Letteau provided her a copy of Roosevelt’s bylaws that did not contain 

the section 4(a) amendment. Ballin confirmed Roosevelt had held an annual members

meeting every year she was a director, but that no action was taken at those meetings 

because “nobody showed up.” She also confirmed that after each members meeting the 

board held its regular meeting and conducted a directors election. Ballin stated that she 

had personally participated in and been reelected at annual directors elections the board

had held in November of 2004, 2005, 2006 and 2007. Ballin testified the board had 

postponed its 2008 regular meeting “because for some reason [the board’s regular] 

meeting had been scheduled before the [members] meeting.” After the 2008 members

meeting was completed (which resulted in no quorum), the board held its meeting and 

annual directors election in April of 2009.

Ballin testified that during the April 2009 board meeting, she informed the other 

directors the election was “illegal” because the bylaws stated each director’s term was for 

three years. She further asserted that chairman Malcolm Smith told her Roosevelt’s past 

practice had been to elect its directors to one year terms at the annual November board

meeting. Ballin also stated that, immediately prior to the board’s director election in

December of 2009, she filed an objection to the minutes of the April 2009 meeting

because they did include her comments about the illegality of the April 2009 election. 

She then attended the December 2009 board meeting, where she was not reelected. 

On cross-examination, Ballin admitted she had read her copy of the bylaws shortly 

after receiving them from director Letteau in 2003. She also admitted that during a prior 

deposition, she had stated that she believed in 2003 that each director’s term was for three 

years rather than one year. Despite this belief, she participated in and was reelected at 

annual directors elections in 2003, 2004, 2005, 2006, 2007 and 2009. She also confirmed 

that “[she] never raised any issue about whether directors had to be elected for three 

years” until 2009.

Roosevelt’s current chairman, Malcolm Smith, testified that he became a director 

in 1991. Smith stated that during his entire period of service, Roosevelt’s directors had 

always been elected by the board to one-year terms. According to Smith, the “elections 
11

for board members were by the board because there never seemed to be a quorum of any 

members. And it was for a one-year period until the next meeting of the board which was 

on an annual basis.” Smith stated that Ballin never objected to the election process or the 

one-year term at any time prior to December of 2009. 

At closing argument Ballin’s counsel cited several reasons the board’s December 

of 2009 election should be invalidated. First, counsel argued the language of the bylaws

made clear that if the members failed to hold an election at their annual members meeting 

“all the directors must continue to serve for another year until the next [members] 

meeting.” Second, counsel argued that even if the board had authority to hold an election

when the members failed to do so, the bylaws plainly stated that the term of each director 

was for three years, meaning that Ballin’s election in April of 2009 had to continue until 

at least April of 2012. Counsel asserted the purported “amendment” adding section 4(a)

was not effective because there was no evidence the board had adopted the provision at a

regular meeting. Third, counsel argued that even if the board was permitted to hold

annual directors elections, Ballin was entitled to remain as a director until her successor 

was selected. Fourth, counsel argued that the evidence at trial showed Roosevelt did not 

provide its members adequate notice of the annual members meeting.7

Ballin’s counsel also argued that the defenses of waiver and estoppel were 

inapplicable because Roosevelt had failed to demonstrate that Ballin had knowingly 

given up her right to challenge the election proceedings; that Ballin had personally 

benefitted from the board’s annual directors election process; or that Roosevelt had 

“changed its position” based on Ballin’s failure to object to the election process. 

At the close of the evidentiary hearing, the court rejected each of these arguments 

and ruled in favor of Roosevelt: “Whether you invoke any or all of the doctrines of 

waiver, estoppel or ratification or custom and practice, the only logical and sensible 

outcome here is that the election that was conducted is valid. And so with that, I find in 

 

7 Ballin’s complaint does not include any allegations regarding the manner in which 

Roosevelt had notified its members of their annual meeting. Ballin’s trial brief only 

references the issue in a footnote. 
12

favor of the defense. It is hard to ignore the fact that for many, many many years this is 

the way things were done. It [is] hard to ignore the fact that for many, many years the 

plaintiff herself participated in exactly this procedure. . . . So with that, judgment is for 

the defense and the results of the election remain.” On May 4, 2010 the court entered a 

judgment in favor of Roosevelt stating: “The election of directors conducted by the 

Roosevelt Board of Directors on December 12, 2009, including their decision not to 

reelect Plaintiff Dorina Ballin as a Director of Roosevelt, is determined to have been 

valid and proper.” 

DISCUSSION

Ballin argues the trial court erred in confirming the results of the election. 

According to Ballin, the bylaws make clear that the board may only hold a directors

election if the “[m]embers have a quorum [at their annual meeting] and elect at least one

director, but less than seven directors . . .” Thus, under Ballin’s theory, the board has no 

authority to hold a directors election when Roosevelt’s members fail to hold an election

for lack of quorum. Ballin also argues the court should not have confirmed the election 

because the trial evidence showed that: (1) the section 4(a) amendment, which gave the 

board discretion to set director terms to one year, was never validly adopted; (2) 

Roosevelt did not provide its members sufficient notice of the annual members meetings; 

and (3) even if the election was valid, section four of the bylaws entitled Ballin to remain 

in her position as director until her successor was nominated and elected.

Roosevelt argues that the court did not misinterpret the bylaws, that the evidence 

at trial showed the board did adopt the section 4(a) amendment and that Ballin failed to 

prove Roosevelt’s notice of the annual members meeting was insufficient. Roosevelt 

further contends that even if the board’s election procedures did conflict with the bylaws

or were otherwise improper, Ballin has failed to present any argument explaining how the 

court erred in concluding she waived or was otherwise estopped from asserting any claim 

predicated on the defective procedures. 
13

A. Summary of Statutes Authorizing Challenges to Corporate Elections 

Section 5617 of the Nonprofit Public Benefit Corporation Law (see §§ 5110-6910)

permits any “director,” “member” or “any person who had the right to vote in the election 

at issue” to file an action to “determine the validity of any election or appointment of any 

director of any corporation.”8(§ 5617, subd. (a).) The statute requires the court to set a

hearing on the complaint within five days “unless for good cause shown a later date is 

fixed.” (§ 5617, subd. (c).) Subdivision (d) provides that “the court, consistent with the 

provisions of the [Nonprofit Public Benefit Corporation Law] and in conformity with the 

articles and bylaws to the extent feasible, may determine the person entitled to the office 

of director or may order a new election to be held or appointment to be made, may 

determine the validity of the issuance of memberships and the right of persons to vote 

and may direct such other relief as may be just and proper.”

Section 709 of the General Corporation Law (see § 100) provides an “equivalent” 

remedy to shareholders of “for profit” corporations. (See Ferry v. San Diego Museum of 

Art (1986) 180 Cal.App.3d 35, 44 fn. 6 [describing section 5617 as the “equivalent” of 

section 709’s predecessor statute, former Corporations Code section 2238]; Greb v. 

Diamond Intern. Corp. (2013) 56 Cal.4th 243, 257 (Greb) [“business (for profit) 

corporations” are governed by “the General Corporation Law, sections 1-2319”].) Like 

section 5617, section 709 authorizes the court to “determine the person entitled to the 

office of director,” “order a new election to be held or appointment to be made” and 

“direct such other relief as may be just and proper.” Section 709 is a successor statute to 

former Civil Code section 315 and former Corporations Code sections 2236-2238, which 

contained substantially similar language. (See § 709, Historical and Statutory Notes 

[identifying former §§ 2236 to 2238 and former Civil Code § 315 as predecessor 

statutes]; Morrical v. Rogers (2013) 220 Cal.App.4th 438, 453-454 (Morrical) 

[describing former Civil Code § 315 and § 2238 as predecessors to § 709]; Columbia 

 

8 The parties do not dispute that Roosevelt is a nonprofit public benefit corporation 

and that this action was properly brought pursuant to section 5617. 
14

Engineering Co. v. Joiner (1965) 231 Cal.App.2d 837, 842-844 (Columbia Engineering) 

[discussing former Civil Code § 315 and Corporations Code §§ 2236-2238].)9 Because 

sections 709 and 5617 relate to the same subject matter (challenges to corporate 

elections) and contain substantially similar wording, we look to cases that have 

interpreted section 709 and its predecessors to inform our interpretation of section 5617. 

(Cf. California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 

Cal.4th 627, 642 [“we interpret a statute in context, examining other legislation on the 

same subject, to determine the Legislature’s probable intent”].) 

“An action to defeat a corporate election is a broad-based equity action in which

the court may examine the entire transaction without being limited to technical or 

procedural issues and may adjust the rights of the parties to do justice among them.” 

(Goss v. Edwards (1977) 68 Cal.App.3d 264, 271 [applying former § 2236]; Lawrence v. 

I. N. Parlier Estate Co. (1940) 15 Cal.2d 220, 227 (Lawrence) [“an action under [former] 

Civil Code section 315 is in the nature of an equitable proceeding in which the court will 

consider . . . all matters necessary to a just direction of the relief required in each 

instance”]; Morrical, supra, 220 Cal.App.4th at p. 451 [“It is well established that section 

709 and its predecessor statutes afford an equitable cause of action”].) Sections 5617 and 

709 are designed to allow the “court . . . to proceed in a summary manner to test the title 

of directors to office without recourse to the slow and cumbersome proceeding of quo 

warranto.’” (Shahin v. Wawro (1982) 136 Cal.App.3d 749, 753.) These remedial 

statutes provide “[t]rial courts . . . a free hand to enable them to make such orders or grant 

such relief as justice may require. In the exercise of the power thus conferred, trial 

judges must be allowed wide discretion, for they are expressly required to ‘proceed in a 

summary way.’ They may and ought to be governed by equitable principles and should 

deal with cases arising under the statute in accordance with substantial right and justice, 

 

9 Prior to the passage of the Nonprofit Public Benefit Corporation Law (including 

section 5617), nonprofit corporations were subject to the election provisions set forth in 

section 709’s predecessor statutes. (Braude v. Havenner (1974) 38 Cal.App.3d 526, 530

[prior to the passage of the Nonprofit Public Benefit Corporation Law, nonprofit 

corporations were subject to section 709’s predecessor, former § 2283].) 
15

but they must not be bound to any hard and fast legal or equitable rules.” (2 Fletcher 

Cyc. Corp. § 370 [citing Lawrence, supra, 15 Cal.2d 220]; see also Greb, supra, 56 

Cal.4th at p. 266, fn. 31 [describing Fletcher as “leading treatise” on corporations law].) 

Given the equitable nature of the proceedings, traditional equitable defenses such 

as estoppel, waiver, laches and unclean hands are generally available in an action 

challenging a corporate election. (See Goss, supra, 68 Cal.App.3d at p. 271 

[summarizing cases recognizing that estoppel and laches are proper defenses in action 

challenging corporate election]; Boericke v. Weise (1945) 68 Cal.App.2d 407, 417-418 

(Boericke) [equitable defenses of estoppel and clean hands available]; Columbia 

Engineering, supra, 231 Cal.App.2d 837 [“estoppel, laches [and] waiver” are generally 

available as defenses in challenge to corporate election]; 2A Fletcher Cyc. Corp. § 785 

[corporate officers and directors “may be estopped by [their] own acts or conduct”].) For 

example, in Shamel v. Lite Products Sales (1955) 131 Cal.App.2d 33 (Shamel), the 

plaintiff brought an action under former section 2236 challenging a director election 

based on procedural irregularities. The court concluded, however, that the plaintiff was 

prohibited from asserting such claims because he had “attended the meeting[,] . . . 

nominated directors and voted therefor.” (Id. at p. 36.) The court explained that “[s]uch 

active participation must be deemed, as the trial court indicated, a waiver of any 

preceding irregularities. That the election did not result as appellant might have desired 

is of no importance.” (Ibid.) Shamel is illustrative of the general rule that “the validity of 

the election of directors . . . cannot be questioned by . . . a director who has participated 

in the selection of the board and subsequently attempts to question the manner of 

choosing directors.” (2 Fletcher Cyc. Corp. § 293.) 

B. Ballin Has Failed to Demonstrate the Court Erred in Applying the Doctrines 

of Waiver and Estoppel

The trial court’s judgment was grounded in part on its finding that Ballin had 

waived or was otherwise estopped from asserting any challenge to the board’s election 
16

procedures because she had personally participated in (and been reelected under) those 

same procedures for years without objection. 

In the “standard of review” section of Ballin’s opening brief, she acknowledges 

that the “trial court based its judgment upon Roosevelt’s claims of waiver . . . and/or 

estoppel.” Ballin also acknowledges that “‘[g]enerally, the determination of either 

waiver or estoppel is a question of fact, and the trier of fact’s finding is binding on the 

appellate court.” (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 319; see also 

Boericke, supra, 68 Cal.App.2d at p. 418 [whether estoppel precluded plaintiff’s 

challenge to corporate election “was a question of fact”].) The “legal argument” section

of her brief, however, does not address these doctrines. Instead, her brief presents four

primary arguments: (1) the court’s ruling conflicts with Roosevelt’s bylaws, which do not 

permit the board to hold annual directors elections; (2) Roosevelt could not amend its

bylaws through its custom and practice of holding annual elections; (3) Roosevelt did not 

provide its members adequate notice of the annual members meeting; and (4) Roosevelt 

should have permitted Ballin to remain in her director position until her successor was 

elected. These arguments, all of which relate to Roosevelt’s conduct, have no relevance 

to waiver or estoppel, which relate to Ballin’s conduct. (See generally Civ. Code, § 3516 

[“Acquiescence in error takes away the right of objecting to it”]; John H. Spohn Co. v. 

Bender (1937) 18 Cal.App.2d 447, 451 [“estoppel does not make valid the thing 

complained of but merely closes the mouth of the complainant”].)

“Perhaps the most fundamental rule of appellate law is that the judgment 

challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively 

demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573; see 

Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “This means that an appellant 

must do more than assert error and leave it to the appellate court to search the record and 

the law books to test his claim. The appellant must present an adequate argument 

including citations to supporting authorities and to relevant portions of the record.” 

(Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557.) 

Although Ballin acknowledges estoppel was one ground cited in support of the judgment, 
17

her opening and reply briefs do not present any legal analysis on the issue of estoppel. 

She has therefore failed to demonstrate the trial court erred in relying on the estoppel 

defense.

10

Ballin has also failed to demonstrate the court erred in concluding she waived any 

challenge to the election irregularities by participating in those same procedures for years 

without objection. Ballin’s brief provides two arguments that reference the issue of

waiver. First, in a single paragraph Ballin argues waiver is inapplicable because the 

record contains no evidence supporting the trial court’s finding that “Ballin . . . 

participated in annual elections.” According to Ballin, the evidence showed only that 

“she, like every other director, simply engaged in a practice . . . of allowing the current 

Board to serve for the ensuing year until the Members could meet and elect their 

successors.” This argument is without merit. The record contains overwhelming 

evidence that Ballin participated in an annual election process whereby the board 

nominated a slate of between five and seven nominees to serve as directors for the 

ensuing year and then voted on whether to approve those nominees. At trial, Ballin 

acknowledged that Roosevelt’s board held a directors election at its annual meeting

“every year” and that she “went to annual directors meeting in 2003, 2004, 2005, 2006 

and 2007 at which [she was] reelected.” McLaughlin and Smith likewise testified that 

the board elected a slate of directors every year and that Ballin had participated in and 

been reelected at several such elections. The corporate minutes show that each year

Ballin was a director, the board nominated a group of between five and seven people to 

serve as directors for the ensuing year. The board then held an election on those 

candidates. The trial evidence therefore unequivocally supports the court’s finding that 

 

10 We express no opinion as to whether the evidence or circumstances of this case 

would in fact support a finding of estoppel. We merely hold that, having presented no 

argument on the issue, Ballin has failed to demonstrate that the trial court erred. 
18

Ballin did in fact attend and participate in numerous annual directors elections without 

objection.11

Ballin next argues that the waiver doctrine is inapplicable because the board had 

no authority to “waive” provisions of its bylaws through its “custom and practice” of 

holding annual directors elections. In support, Ballin cites and discusses Powers v. 

Marine Engineers’ Beneficial Assn. No. 35 (1921) 52 Cal.App. 551, which addresses 

whether corporate bylaws may be created or adopted based solely on usage and custom. 

This argument, however, does not address the court’s finding that Ballin had personally

waived her right to challenge the election proceedings by “participat[ing] in exactly this 

procedure” without objection “for many, many years.” Even if Ballin is correct that the 

election procedures conflicted with the bylaws and that the board could not “waive” the

bylaws through its customs and practices, she has presented no argument explaining how

the court erred in concluding her prior conduct demonstrated she had acquiesced in those 

 

11 At oral argument, Ballin’s counsel emphasized that even if principles of waiver or 

estoppel precluded her from challenging the board’s use of annual directors elections, the 

bylaws nonetheless entitled her to remain in her director position until the board 

nominated and elected her successor. Counsel failed to explain, however, why the trial 

court erred in concluding that Ballin had waived or was otherwise estopped from 

asserting this particular argument (which was presented at trial) by participating in an 

election process whereby a panel of individuals were nominated and elected to serve as 

directors for the ensuing year. As explained above, the evidence shows that the number 

of directors the board nominated and elected to serve for the ensuing year fluctuated 

between four people (the minimum number of directors necessary for a quorum) and 

seven people (the maximum number of directors authorized under the bylaws). The 

board was thus comprised solely of those individuals who were nominated and elected at 

the prior annual directors election even if that number was less than the maximum 

number of directors authorized under the bylaws (seven). The trial court apparently 

reasoned that by having engaged in this election process for years, Ballin could not now 

argue that any active director who was not nominated and elected to serve for the ensuing 

year was nonetheless permitted to remain in the position until his or her successor was 

appointed. 
19

procedures, thereby waiving her ability to challenge their legality. (See Civil Code, 

§ 3516)12

DISPOSITION

The trial court’s judgment is affirmed. Respondents shall recover their costs on 

appeal. 

ZELON, J.

We concur:

PERLUSS, P. J. 

FEUER, J.

 

12 Because Ballin has failed to demonstrate the court erred in applying waiver or 

estoppel, we need not address Roosevelt’s alternative contention that the issues raised in 

this appeal are now moot because the corporation recently eliminated all of its members 

and established new election procedures as part of a bankruptcy reorganization. The 

reorganization plan includes a provision stating that, under the new procedures, Ballin 

may not be appointed to serve as a director “unless the State Court action results in a 

determination that [Ballin’s] previous term on [the board] had not expired as of the date 

advocated by [Roosevelt] in the State Court Action.”



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.