Ellis George represented dissident members of the Bel-Air Association (BAA) who believed that the incumbent officers and directors were not serving the needs of the community and were not challenging untrammeled development. However, those in control were entrenched through staggered board terms. The members seeking to obtain control of the BAA sought a special election, which they noticed and held themselves when the BAA would not act within the timeframe desired by the dissidents.
Those challenging the incumbents were elected at the special meeting they called, and the existing bylaws were also amended at that same meeting, doing away with staggered terms, and electing the slate of candidates offered by the dissidents. The newly elected members assumed control of the BAA the night of the election.
One of the ousted BAA officers and directors brought suit and sought a TRO. The TRO was denied, and the lawsuit was dismissed. Another member of the ousted Board then brought a lawsuit, but, when a Tentative Ruling on his Corporations Code section 7616 petition did not provide the relief he sought, that member dismissed the lawsuit, purportedly without prejudice.
That same party later filed a new lawsuit arising out of the same set of operative facts as the earlier dismissed action, but this time purported to join the organization from which he was ousted as a co-plaintiff. The BAA (and its newly elected Board members, who were joined as defendants) filed a demurrer, citing Goddard v. Security Title Ins. & Guarantee Co. (1939) 14 Cal.2d 47, 51 and Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Cas. & Sur. Co. (2005) 133 Cal.App.4th 1319, 1330-1331, and arguing that the earlier dismissal, although ostensibly filed “without prejudice,” nevertheless operated as a retraxit, barring the bringing of a similar claim.
After further law and motion practice, the Court dismissed without leave to amend all of the causes of action. The former BAA officer and director appealed, purporting the join the BAA as his co-appellant. On December 23, 2019, the Court of Appeal unanimously affirmed the trial court’s decision dismissing all claims against all newly elected BAA officers and directors, and rejecting the challenge to special election they called.
