P.S. Docket No. MD 04-101
October 26, 2004
In the Matter of a Mail Dispute Between
JOHN WEIGAND[1]
and
STAN SEARFUS
P.S. Docket No. MD 04-101
APPEARANCE FOR DISPUTANT JOHN WEIGAND:
Penny D. Weigand, Esq.
P.O. Box 650
Jamul, CA 91935-0650
APPEARANCE FOR DISPUTANT STAN SEARFUS:
Robert J. Steinberger, Esq.
Jason Coberly, Esq.
Soden & Steinberger, LLP
550 W. C Street, Suite 1710
San Diego, CA 92101-3568
POSTAL SERVICE DECISION
On September 3, 2004, an Administrative Law Judge issued an Initial Decision in which he concluded that all mail addressed to Coronado Navy Swim Association (CNSA) at P.O. Box 180063, Coronado, CA 92178-0063 and at P.O. Box 181853, Coronado, CA 92178-1853 should be delivered as directed by Disputant Stan Searfus. Disputant John Weigand has filed an appeal from the Initial Decision, contending that Disputant Searfus is not entitled to direct delivery of the organization’s mail because he was not properly elected to the position of president of CNSA. Disputant Searfus has filed his opposition to the appeal.
Background
Prior to April 30, 2003, Disputant Weigand served as the president of CNSA, a non-profit corporation incorporated under the laws of the State of California (Initial Decision (ID), Findings of Fact (FOF) 1 and 3). In the Initial Decision, the Administrative Law Judge concluded that Disputant Searfus became president of CNSA after being elected to that position at a special meeting of the organization’s general membership held on April 30, 2004 (ID, FOF 9). At the time of the special meeting, CNSA was suspended from doing business by the California Secretary of State (see S. Searfus July 17, 2004 Statement, Ex. 13). Under the California Code, a suspended corporation may not, except for limited purposes not applicable here, exercise any “corporate powers, rights [or] privileges.”[2] The corporation was reinstated to do business sometime after the special meeting (S. Searfus July 17, 2004 Statement, Ex. 14).
Discussion
Disputant Weigand has not shown that the Initial Decision is clearly erroneous or that any other grounds exist for the Judicial Officer to exercise his discretion to grant review on appeal and reverse the Initial Decision. Disputant Weigand argues that the special meeting at which Disputant Searfus was elected president was improper because all of the members of the organization were not notified of the meeting, those voting at the special meeting were not members in good standing, and the organization was suspended from exercising any corporate powers at the time the special meeting took place.
The evidence presented does not establish that the organization’s members were not duly notified of the April 30, 2004 special meeting, that those in attendance were not qualified to vote or that Disputant Searfus was not elected president of CNSA at the special meeting. Although the organization’s members were not authorized to call a special meeting and hold an election during the period the corporation was suspended, the California courts have held that the subsequent reinstatement of a corporation to do business validates otherwise prior invalid actions.[3] Therefore, upon reinstatement of the corporation subsequent to the April 30, 2004 special meeting, Disputant Searfus became the “president or equivalent official”[4] of the corporation and entitled to direct delivery of all of the organization’s mail.
Accordingly, Disputant Weigand’s appeal is denied and all mail addressed to Coronado Navy Swim Association or CNSA, P.O. Box 180063, Coronado, CA 92178-0063 and at P.O. Box 181853, Coronado, CA 92178-1853 is to be delivered as directed by Stan Searfus. The parties are reminded that this decision determines only the right to delivery of the mail in dispute, not the ownership of the mail. If either party receives mail intended for the other, that party is responsible for forwarding such mail to the intended recipient.
James A. Cohen
Judicial Officer
[1] Disputant John Weigand previously requested the removal of Penny Weigand as a party to this proceeding as she was only serving as counsel to Mr. Weigand and not making any claim to the mail in dispute on her own behalf. See J. Weigand July 13, 2004 Sworn Statement, ¶23. The record supports Mr. Weigand’s contention that Ms. Weigand is only serving as his counsel and should not be considered a party to this mail dispute. Therefore, Ms. Weigand is removed as a party to this proceeding and the caption of this proceeding, as shown on this Decision, has been amended accordingly.
[2] See Cal. Corp. Code ¶¶ 2205 and 5008.6 and Cal. Rev. & Tax Code ¶ 23301. It is unclear from the record under which section of the code CSNA was suspended, but the result of a suspension is the same under either of these sections. See Palm Valley Homeowners Assn., Inc. v. Design MTC, 85 Cal. App. 4th 553, 560 (2000).
[3] E.g., Peacock Hill Assn. v. Peacock Lagoon Constr. Co., 8 Cal. 3d 369, 371 (1972); Rochin v. Pat Johnson Manufacturing Co., 67 Cal. App. 4th 1228, 1236-37 (Cal. App. 2d Dist. 1998); Damato v. Slevin, 214 Cal. App. 3d 668, 672 (Cal. App. 1st Dist. 1989).