McCollough v.
Filed 8/9/12
McCollough v. Hillside Baptist
Church CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 THREE
JAMES McCOLLOUGH,
Cross-complainant and Appellant,
v.
HILLSIDE BAPTIST CHURCH OF PUENTE CALIFORNIA,
Cross-defendant and Respondent.
B230618
(Los Angeles County
Super. Ct. No. KC056424)
APPEAL from
a judgment of the Superior Court of
County, Peter J. Meeka, Judge.
Affirmed.
Orloff &
Associates and Paul Orloff for Cross-complainant and Appellant.
No appearance for Cross-defendant and
Respondent.
James McCollough appeals from a judgment entered
following a bench trial in which the court concluded that he was not entitled
to recover unpaid wages for services he performed as the pastor of Hillside
Baptist Church of Puente California (the church). McCollough was the pastor for nine years
before he was terminated and sought to recover almost $200,000, calculating his
pay by relying on a written compensation agreement the former pastor had with
the church and seeking 128 months of unpaid wages. The court determined McCollough had no
written contract, and his oral contract
of $200 per week was modified after the church could no longer afford to pay
him. We conclude McCollough’s procedural
and substantive challenges to the judgment do not warrant reversal. Thus, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The church has not submitted a brief
in this court, and McCollough’s brief tells only his side of the dispute
between these parties.
name="_ftnref1" title="">[1] The church sued McCollough and sought
declaratory relief to determine the rights and responsibilities of the parties
related to McCollough’s employment and compensation. McCollough filed a cross-complaint for unpaid
wages based upon the terms of an alleged employment contract, wrongful
termination in violation of public policy, race discrimination, violation of
Civil Code section 52.1 (interference with civil rights), promissory estoppel,
and intentional infliction of emotional distress. The church did not answer the
cross-complaint, and the church’s default was entered.
On the first day of trial, the court
suggested the parties try the complaint and the cross-complaint at the same
time. Counsel did not object and trial
commenced.
1.
In 1996 and 1997, McCullough began
volunteering at the church as an associate pastor. McCullough also was a part-time
missionary. He had a full-time job with
the federal government working for the Department of Defense.
In 2000, McCullough became pastor of
the church. McCullough had been part of
the search committee for a new pastor and was aware of the salary and benefits
the former pastor had received.
McCollough assumed that he would receive similar compensation, but he
had no written compensation agreement.
A member and former treasurer of the
church testified that McCollough was hired as a bi-vocational pastor, meaning
he would maintain his full-time job and conduct three services, two on Sunday
and a Wednesday night prayer meeting.
The church agreed to pay McCollough $125 a week in 2000, then raised his
pay to $200 a week. McCollough and his
family also lived on the church property.
2.
The church paid McCollough $200 a
week until late 2004, when it could no longer afford to pay him. At the end of 2004, the church issued
McCollough IOUs. McCollough testified that
he decided not to ask for his pay until the church’s financial situation improved,
and he understood the church could not afford to pay his salary.
McCollough continued to conduct
church services because he believed that “God had placed [him] there,” and he
had a “government job that was giving [him] income[.]” McCollough lived with his family on the
church premises, and his wife acknowledged the family had no other place to
live.
The church’s financial difficulties
resulted, in part, from the decline in membership. In 2003, there were 40 active members of the
church, four years later, the membership had decreased to just 20, and by 2010
there were five members, not counting the McCollough family.
3.
In May 2009, the seven remaining
members of the church voted to terminate McCollough. Despite the vote, McCollough maintained that
he was their pastor.
4.
On McCollough’s cross-complaint, the
court announced from the bench that the evidence established McCollough and the
church entered into an oral contract in which McCollough would be paid $200 a
week.
McCollough, the court concluded the parties modified the contract, and
McCollough agreed to perform his services without pay in exchange for a place
to live.
Neither party requested a statement
of decision. (Code Civ. Proc., §
632.) The trial court entered judgment
for McCollough on the complaint, and for the church on McCollough’s cross-complaint. This timely appeal followed.
DISCUSSION
1.
to his Wage Claim
McCollough contends that the trial
court erred in permitting the church to present a defense to his
cross-complaint because the court had entered the church’s default months
before the commencement of trial.
McCollough did not raise this issue in the trial court proceedings.
When a party by his conduct induces
the commission of an error, under the doctrine of invited error he is estopped
from asserting the alleged error as grounds for reversal. (In re
Marriage of Broderick (1989) 209 Cal.App.3d 489, 501.) Additionally, an appellant waives or forfeits
his right to attack error by expressly or implicitly agreeing at trial to a
procedure objected to on appeal. (
(1978) 80 Cal.App.3d 158, 166.)
The record herein indisputably
establishes that McCollough’s counsel had an opportunity before trial commenced
to object to the church’s presentation of a defense to the
cross-complaint. Before a single witness
was called, the court suggested the parties agree to try the complaint and
cross-complaint at the same time, as both parties sought a resolution of this
employment dispute. McCullough’s counsel
did not remind the court that a default had been entered against the church.
McCollough also does not cite to any
portion of the record showing that he raised an objection during trial to the
church’s presentation of a defense.
During argument, for example, when the court asked the church to address
the weakness of the cross-complaint, McCollough’s counsel remained silent on
the default issue raised here. Thus, the
failure to raise this issue in the trial court bars this issue on appeal either
under the doctrine of invited error or by way of forfeiture.
Even if the issue were not forfeited,
the law favors a resolution on the merits.
(See Au-Yang v. Barton
(1999) 21 Cal.4th 958, 963.) Had the
default been raised, we presume that the trial court would have set it aside to
permit the parties to litigate the overlapping issues in the complaint and
cross-complaint related to McCollough’s employment.
McCollough also has failed to show
prejudicial error. (See
Cal.4th 780, 800-802.) We reject
McCollough’s contention that he was prejudiced because his default prove-up
hearing would have been uncontested, permitting him to simply recover almost
$200,000. We read the trial court’s
decision following the bench trial as a failure of proof on the
cross-complaint, not that the church prevailed on its affirmative defense. Disregarding the church’s witnesses,
McCollough and his wife testified that he did not have a written compensation
agreement. They assumed that he would
receive the same compensation as the former pastor.
We also reject McCollough’s
contention that he suffered prejudice because he could not conduct discovery on
his wage claim after the court entered the church’s default. McCollough’s claim for wages was based upon
the previous pastor’s compensation agreement, which McCollough introduced into
evidence.
We recognize in default proceedings
after a default is entered that there is no opposing party. But that does not mean that McCollough was
entitled to a judgment of almost $200,000.
The cases recognize that in default proceedings “ ‘it is the duty of the
court to act as gatekeeper, ensuring that only the appropriate claims get
through.’ ” (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 691.) From our review of the record, the court
would have reached the same result had it conducted a default prove-up hearing
under Code of Civil Procedure section 585, and not a bench trial.
2.
Merit
McCollough contends the trial court’s
conclusion that he agreed to a salary of $200 violates California wage laws, and no substantial
evidence exists to support the conclusion that he modified his
a.
Violate the Minimum Wage Laws
McCollough contends that his salary
of $200 a week was below minimum wage. Although McCollough casts this issue as
a legal one, this contention necessarily required the court to determine that
he was an hourly employee and the hours that he worked. These are factual questions. In the absence of a statement of decision
after a bench trial, we presume that the trial court made all findings
necessary to support the judgment under any theory that was before the
court. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 647-648.) This is merely a corollary of the general
rules that judgment is presumed to be correct, all intendments and presumptions
are indulged in favor of correctness, and the appellant bears the burden of
providing an adequate record affirmatively proving error. (Fladeboe
v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) “ ‘When a finding of fact is attacked on
the ground that there is not any substantial evidence to sustain it, the power
of an appellate court begins and
whether there is any substantial evidence contradicted or uncontradicted which
will support the finding of fact.’ ”
(Foreman & Clark Corp. v.
Fallon (1971) 3 Cal.3d 875, 881.)
McCollough’s contention that he
received less than minimum wage ignores the evidence presented at trial. The court concluded that McCollough was paid
based upon the terms of an oral contract, and not compensated based upon an
hourly rate.
title="">[3] The church treasurer testified that
McCollough received a salary to conduct three church services, two Sunday
services and a Wednesday night prayer service.
McCollough also testified that he had a full-time job with the Department
of Defense. Even if he were an hourly
employee, there was sufficient evidence from which the trial court could have
concluded McCollough’s salary for these limited services did not violate California’s minimum wage laws.
We also reject McCollough’s
contention that the trial court refused to hear argument on the number of hours
he worked. McCollough’s citation to the
record focuses on the court’s comments during argument that McCollough failed
to prove his damages. In any event,
these comments do not impeach the court’s final decision. (In re
Marriage of Ackerman (2006) 146 Cal.App.4th 191, 203 [“We review the
result, not the trial court’s reasoning, and do not consider comments by the
trial judge”]; Whyte v. Schlage Lock Co.
(2002) 101 Cal.App.4th 1443, 1451 [“Because we review the correctness of the
order, and not the court’s reasons, we will not consider the court’s oral
comments or use them to undermine the order ultimately entered”];
Cal.App.2d 245, 249 [“oral opinions or statements of the court may not be
considered to reverse or impeach the final decision of the court which is
conclusively merged in its findings and judgment”].)
Without citation to the record,
McCollough next contends that the trial court’s decision erroneously placed the
evidentiary burden on him to establish the hours worked. (See Cicairos
v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 961 [“ ‘[W]here
the employer has failed to keep records required by statute, the consequences
for such failure should fall on the employer, not the employee.’ ”].) McCollough’s failure to cite to the record
waives this argument on appeal. (
(2009) 177 Cal.App.4th 771, 799-801.)
In any case, McCollough testified that he worked for the church 24 hours
a day, but he also testified that he had a full-time job with the federal
government and continued to volunteer as a missionary. The trial court heard and credited evidence
that McCollough was a part-time pastor hired to conduct three services for the
church. Moreover, McCollough’s damages
claim was not based upon the hours he worked, but based upon the salary paid to
the former pastor, irrespective of the actual hours he worked. We conclude the trial court did not err.
b.
McCollough contends the trial court’s
judgment is contradictory because it concluded an oral contract existed to pay
him $200 a week, but the court did not award damages. McCollough claims he should have been awarded
his unpaid wages dating back to late 2004 when the church could no longer
afford to pay him.
As we previously stated, even if
McCollough were entitled to damages, based upon the court’s conclusion that an
oral contract existed between the parties, the statute of limitations is two years. (Code Civ. Proc., § 339, subd. (1).)
During the relevant statutory period,
McCollough maintains he did not disavow his wages and expected to be
compensated for his services. There is
no conflict in the evidence that the church agreed to pay McCollough $200 a
week, and that the church paid his salary until late 2004. Where the evidence conflicted is on whether
that agreement changed in early 2005, when the church suffered financial
difficulty.
The resolution of whether McCollough
and the church modified their oral contract was a credibility issue on disputed
facts, and we must defer to the trial court’s findings when supported by
substantial evidence. (
196 Cal.App.4th 1406, 1417.)
Substantial evidence consisted of McCollough’s own testimony that he no
longer expected to be paid. Both the
church’s witness and McCollough testified that given the church’s financial
condition, by late 2004 or early 2005, the church could not pay McCollough. McCollough told the church treasurer in late
2004 or early 2005, after the church paid him with IOUs, “ ‘I don’t worry
about the money’ ” because he had a full-time job with the
government. McCollough did not walk away
from the church because he was doing God’s work, and he and his family
continued to live on the church premises.
church, he volunteered his services as an associate pastor in exchange for
living rent-free on the church premises.
Under the unique circumstances presented in this case, substantial
evidence supports the trial court’s conclusion that McCollough volunteered his
services as a pastor after 2005. Thus,
during the relevant statutory period, McCollough was not entitled to recover
damages for unpaid wages.
DISPOSITION
The judgment on McCollough’s
cross-complaint is affirmed. Since no
respondent brief was filed, no costs are awarded on appeal.
ALDRICH,
J.
We concur:
KLEIN,
P. J.
KITCHING, J.
the church has not filed a respondent’s brief, we decide the appeal on the
record and on appellant’s opening brief.
(Cal. Rules of Court, rule 8.220(a)(2).)
noted, McCollough’s cross-complaint sought 128 months of unpaid wages. This claim appears to be based on a statutory
violation because McCollough also sought attorney fees under the Labor
Code. The three-year statute of
limitations applies to statutory wage claims.
(Code Civ. Proc., § 338, subd. (a).)
A two-year limitations period applies if the wage claim is based upon an
oral contract. (Code Civ. Proc., § 339,
subd. (1).)
