Pacifica Foundation v. New Day Pacifica CA2/5

Opinion

Filed 9/22/26 Pacifica Foundation v. New Day Pacifica CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

PACIFICA FOUNDATION, INC., B348882 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. 21BBCV00642)

NEW DAY PACIFICA,

Defendant;

ALEX STEINBERG,

Movant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Sarah J. Heidel, Judge. Affirmed.

Eisenberg & Associates and Mark S. Eisenberg for Movant and Appellant. Pathfinder Attorneys and Todd Gallinger for Plaintiff and Respondent.

****** A nonprofit corporation sued an association formed by its members due to a dispute over the results of a referendum election that, if passed, would amend the nonprofit’s bylaws and change the nonprofit’s governance structure. Following years of litigation and an order granting summary adjudication in favor of the nonprofit on its claim for declaratory relief that a parallel vote from two independent categories of members was required for the referendum to pass, the nonprofit and the association entered into a settlement agreement whereby the nonprofit agreed to recognize that the referendum passed and to amend its bylaws accordingly. The parties obtained a stipulated judgment to that effect and dismissed the action. Appellant Alex Steinberg then filed a motion to intervene in the lawsuit, arguing that the settlement reached a result inconsistent with the nonprofit’s existing bylaws and the court’s earlier summary adjudication ruling. The trial court denied the motion because the action had already been dismissed, so there was no pending action in which to intervene. We agree and affirm. FACTS AND PROCEDURAL BACKGROUND I. Facts A. The parties Pacifica Foundation, Inc. (Pacifica) is a nonprofit corporation that owns and operates several radio stations across the country. Pacifica’s membership is composed of two classes: listener-sponsor members and staff members. New Day Pacifica 2 (New Day) is an unincorporated association formed by a group of Pacifica members. B. The 2021 referendum In 2021, New Day proposed a referendum that would amend Pacifica’s bylaws and make changes to Pacifica’s governance structure. Following a membership vote, Pacifica’s National Election Supervisor announced that the referendum did not pass, because although a majority of listener-sponsor members voted in favor of the referendum, the majority of staff members voted against it, and Pacifica’s bylaws require a parallel vote with a majority vote from each class of members to pass a referendum. New Day disagreed with this assessment, and declared the referendum passed because a collective majority of Pacifica’s membership voted in favor of the referendum. II. Procedural History A. The pleadings On July 22, 2021, Pacifica filed a complaint against New Day and several individuals associated with New Day.1 In the operative first amended complaint, Pacifica sought (1) declaratory relief clarifying that the referendum did not pass because Pacifica’s bylaws require a parallel vote with a majority from each class of members, (2) injunctive relief prohibiting New Day from asserting control over Pacifica and its assets, and (3) an accounting and damages arising from New Day’s use of Pacifica’s mailing list to solicit funds in violation of Corporations Code section 6338. Alex Steinberg was then the chair of the Pacifica 1 Those individuals are Sharon Kyle, Jan Goodman, Lyndon Foley, and Akio Tanaka, sued in both their individual capacity and as officers of New Day. They are not parties to this appeal.

3 National Board, and he verified Pacifica’s complaint and first amended complaint. On November 16, 2021, New Day filed a cross-complaint against Pacifica. In the operative first amended cross-complaint, New Day sought (1) declaratory relief establishing that the referendum passed, both because Pacifica’s bylaw procedures did not require a parallel vote and because some of the votes were invalid; (2) declaratory relief finding New Day’s use of Pacifica’s mailing list did not violate Corporation Code section 6338 and that if it did, section 6338 is unconstitutional; (3) a request for recounting of some of the votes; (4) an order requiring Pacifica to implement the referendum’s changes; and (5) damages for Pacifica’s agents’ breach of their fiduciary duties by “misinforming members about the contents and effect of the referendum” and improperly counting votes. Three Pacifica members filed a complaint in intervention asserting several causes of action against Pacifica on April 8, 2022.2 B. Summary adjudication On April 24, 2023, the trial court granted summary adjudication in favor of Pacifica on its declaratory relief cause of action, concluding that “[t]he language in the bylaws is clear and unambiguous—if there is a differing impact, a vote of each class of members is mandated. That did not occur.” The court found there to be triable issues of fact on the parties’ remaining claims. C. Mediation and settlement negotiations At an October 16, 2024 hearing, the trial court ordered the parties to mediation. At this time, the composition of Pacifica’s 2 Those members are Elizabeth Jensen, Sheila McCoy, and Mansoor Sabbagh. They are not parties to this appeal.

4 National Board had changed; Steinberg was no longer chair of the board. The Pacifica National Board held meetings on March 6, 2025 and March 13, 2025, at which it discussed the possibility of settling the case. Steinberg was present at these meetings. On March 20, 2025, Pacifica and New Day executed a “Settlement Agreement and General Release,” which provided for Pacifica to amend its bylaws and “execute and file a Request for Dismissal with Prejudice of the entire Lawsuit” “[w]ithin 10 days of the Pacifica National Board ratifying this settlement.” The Pacifica National Board ratified the settlement agreement at a meeting held on April 3, 2025. D. Rejected motion to intervene On April 7, 2025, Steinberg attempted to file a “Motion to Intervene and to Oppose Court Approval of the Settlement Agreement,” which was rejected by the court’s filing system due to an “[i]ncorrect [c]ourt [r]eservation number.” E. Notification of settlement On April 8, 2025, the parties appeared for a post-mediation status conference, where they informed the court that they reached a settlement agreement and would be submitting a proposed stipulated judgment for the court’s signature. The trial court set an order to show cause regarding entry of judgment for July 3, 2025. Because nonparties had appeared at the April 8 hearing to object to the settlement, the trial court also ordered that “[a]ny objections to the proposed stipulated settlement between the parties must be properly brought before the court.”3 3 The record does not reflect the identity of any nonparty who appeared at the hearing.

5 F. Judgment and dismissal On April 10, 2025, the trial court signed a stipulated judgment submitted by the parties, which declared that Pacifica would adopt amended bylaws incorporating “key elements” of the 2021 referendum and that “the Board of Directors of Pacifica acknowledges the approval of” the 2021 referendum. The judgment states that “the Court shall retain jurisdiction to enforce the Parties’ Settlement Agreement pursuant to CA CCP 664.6.” On May 27, 2025, the parties submitted a request for dismissal signed by counsel for Pacifica, New Day, and the existing intervenors, which dismissed the entire action without prejudice “and with the court retaining jurisdiction” pursuant to Code of Civil Procedure section 664.6. G. Motion to intervene Eight days later, on June 4, 2025, Steinberg filed a “Motion to Intervene, Vacate Dismissal, and Object to Approval of the Settlement[] Agreement.”4 Steinberg requested mandatory or permissive intervention under Code of Civil Procedure section 387, arguing that as a Pacifica member who voted on the 2021 referendum, he had an interest in ensuring that Pacifica’s bylaws and the trial court’s summary adjudication ruling are enforced, and that Pacifica inadequately represented that interest by entering into the settlement agreement adopting the 2021 referendum. Steinberg also requested that the court vacate the May 27, 2025, dismissal as “premature,” arguing that because the 4 Steinberg filed the motion pro per, on behalf of himself and five other Pacifica members: Donna Stein, Elizabeth von Gunten, Adriana Casenave, Vanessa Dixon-Briggs, and Anthony Fest. Those individuals are not parties to this appeal.

6 court had set an order to show cause for July 3, 2025, the dismissal demonstrated the parties’ “cynical ploy” to prevent Steinberg and others from intervening. Pacifica filed an opposition, and on July 3, 2025, the trial court denied Steinberg’s motion. The court reasoned that because the case “has been dismissed in its entirety, there is no longer an action in which to intervene.” The court went on to state that “[e]ven if the action was still active,” Steinberg’s motion was untimely, his delay in bringing the motion would prejudice the parties, and Pacifica adequately represented Steinberg’s interests. H. Appeal Steinberg filed a notice of appeal on September 3, 2025.5 5 In the civil case information statement filed in this Court, Steinberg listed the “[d]ate that notice of entry of judgment or a copy of the judgment was served by the clerk or by a party under California Rules of Court, rule 8.104” as “July 3, 2025”—62 days before he filed his notice of appeal. Accordingly, this Court issued a letter requesting appellant demonstrate why the appeal should not be dismissed as untimely. In response to that letter, neither party submitted proof that Steinberg was served with a notice of entry of the appealed order or a file-stamped copy of the order. (See Cal. Rules of Court, rule 8.104(a).) The record does not contain any document that would trigger rule 8.104(a)(1)(A) or (B)’s 60-day deadline to appeal, nor have we identified any such document on the superior court’s docket, which we judicially notice on our own motion. (Evid. Code, §§ 452, subd. (d), 459.) We therefore apply rule 8.104(a)(1)(C)’s 180-day deadline and treat the appeal as timely. (See Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007, 1011, fn. 2 [applying 180-day deadline where record ambiguous as to whether notice of entry was served on the parties].)

7 DISCUSSION Code of Civil Procedure section 387 permits intervention in an action where a person makes a “timely” application and demonstrates an interest in the action sufficient to justify either mandatory intervention under subdivision (d)(1) or permissive intervention under subdivision (d)(2). (Code Civ. Proc., § 387, subd. (d).) We review the denial of mandatory intervention de novo and the denial of permissive intervention for abuse of discretion. (State Water Bd. Cases (2023) 97 Cal.App.5th 1035, 1043 (State Water Bd. Cases).)6 On August 31, 2026—on the eve of oral argument in this matter, 45 days after the appellate briefing concluded, and 11 months after this Court’s letter as to the potential untimeliness of this appeal—Steinberg filed a motion to augment the record with filings showing the trial court’s July 3, 2025 minute order was mailed the same day. The motion to augment is denied, because it is both untimely and because the filings do not show service of notice of entry of a signed order. (See Advisory Com. com., Cal. Rules of Court, rule 8.155 [court may deny motion to augment the record if not “made within a reasonable time”]; Ct. App., Second Dist., Local Rules, rule 2(b) [request to augment should be made within 40 days of filing the record; motions filed after that deadline “will not be granted except upon a showing of good cause”].)

6 In State Water Bd. Cases, the court acknowledged that whether an order denying mandatory intervention is reviewed de novo or for abuse of discretion is unsettled but gave the impression that California should track federal courts and conduct a de novo review. (State Water Bd. Cases, supra, 97 Cal.App.5th at p. 1043.) We would reach the same result under a review for abuse of discretion.

8 Code of Civil Procedure section 581 permits any party to dismiss an action with or without prejudice “upon the written consent of all other parties.” (Code Civ. Proc., § 581, subd. (b)(2).) California Rules of Court, rule 3.13857 provides that upon settlement of a case, the parties are to file a request for dismissal within 45 days. (Rule 3.1385(b); see DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1155 (DeSaulles) [“when a settlement pursuant to a stipulated judgment disposes of the entire case, a dismissal of the action generally follows as a matter of law,” citing rule 3.1385].) Once an action has been dismissed, the trial court loses jurisdiction to act further, except for the limited purpose of awarding costs or attorney fees. (Harris v. Billings (1993) 16 Cal.App.4th 1396, 1405.) Accordingly, “‘[i]ntervention cannot take place after an action has been dismissed’” because at that point, there is “no action pending . . . into which anyone could intervene.” (Andersen v. Barton Memorial Hospital, Inc. (1985) 166 Cal.App.3d 678, 685, fn. 9; Lohnes v. Astron Computer Products (2001) 94 Cal.App.4th 1150, 1154 [“intervener could not file a new complaint in intervention when the underlying action had already been dismissed”]; Egly v. Superior Court of Los Angeles (1970) 6 Cal.App.3d 476, 482-483 [reversing grant of leave to intervene where plaintiff voluntarily dismissed action two weeks after motion for leave to intervene was filed but before the trial court granted the motion]; Klinghoffer v. Barasch (1970) 4 Cal.App.3d 258, 262 [trial court properly dismissed complaint in intervention filed after plaintiff dismissed action because “[u]nder [Code of Civil Procedure] section 581, the action has 7 Further undesignated rule references are to the California Rules of Court.

9 been terminated, and no further pleading by anyone is appropriate”].) Here, Steinberg filed his motion to intervene on June 4, 2025, eight days after the parties dismissed the action on May 27, 2025. Thus, the trial court properly denied intervention on the basis that the case had been “dismissed in its entirety” and there was therefore “no longer an action in which to intervene.” None of Steinberg’s arguments to the contrary have merit. First, Steinberg cites Mallick v. Superior Court (1979) 89 Cal.App.3d 434 for the proposition that “intervention is possible, if otherwise appropriate, at any time, even after judgment.” (Id. at p. 437.) Mallick involved a class action pending on appeal following a judgment. (Id. at p. 436.) Settlement negotiations were ongoing, and the intervenor sought to remove the class representative based on a purported breach of their fiduciary duty during settlement negotiations. (Id. at pp. 436- 437.) In concluding that intervention was possible even though judgment had been rendered, the court noted that “the trial court retains jurisdiction to determine at any time that the named plaintiff is no longer fit to represent the class.” (Id. at p. 437.) The same is not true here, where there is no class action, settlement negotiations have concluded, and the case has been voluntarily dismissed by the parties. Because Steinberg filed his motion to intervene after the action was dismissed, the trial court properly concluded that there was no action in which Steinberg could intervene.8 8 In his reply brief, and for the first time, Steinberg contends the rejected April 7, 2025 motion to intervene “placed a pending motion to intervene on the trial court’s calendar . . . .” Without delving into the irrationality of this assertion, we note it adds 10 Second, Steinberg argues the trial court had jurisdiction to grant leave to intervene despite the dismissal because the parties agreed that the trial court would retain jurisdiction to enforce the terms of the settlement pursuant to Code of Civil Procedure section 664.6. The trial court’s power under that statute is “extremely limited”; the statute merely permits the trial court to enforce the express terms of a settlement agreed upon by the parties. (Hernandez v. Board of Education (2004) 126 Cal.App.4th 1161, 1176 [court is “powerless to impose on the parties more restrictive or less restrictive or different terms than those contained in their settlement agreement”]; Howeth v. Coffelt (2017) 18 Cal.App.5th 126, 134 [“retention of jurisdiction pursuant to section 664.6 is intended to allow the court to ensure all parties perform pursuant to a settlement agreement that results in a dismissal of a lawsuit”].) This limited retention of jurisdiction over the existing parties to ensure compliance with the terms of their settlement agreement does not create an avenue for an intervenor to challenge the terms of that agreement or otherwise revive the dismissed claims. Third and finally, Steinberg argues that the parties “specifically chose[]” to dismiss the action prior to the trial court’s July 3, 2025 hearing in order “to moot the court’s OSC hearing and cut off Steinberg’s rights,” and that the trial court has inherent authority to prevent this type of “procedural manipulation.” The record does not support this nothing to the merits of his appellate claim because (1) we do not consider arguments made for the first time in the reply brief (People v. Tully (2012) 54 Cal.4th 952, 1075), and (2) it is not supported by citation to authority (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956).

11 characterization. The parties filed their request for dismissal on May 27, 2025, pursuant to the requirement that they “file a request for dismissal of the entire case within 45 days after the date of settlement of the case.” (Rule 3.1385(b); DeSaulles, supra, 62 Cal.4th at p. 1155.) Indeed, the parties filed their request for dismissal 50 days after Steinberg submitted his initial motion to intervene that was rejected by the filing system. Thus, Steinberg had ample opportunity to seek intervention while the action was still pending. Because we conclude that the trial court properly denied Steinberg’s post-dismissal request to intervene, we need not consider Steinberg’s additional arguments challenging other aspects of the trial court’s order and/or the propriety of the settlement.

12 DISPOSITION The order is affirmed. Pacifica is entitled to costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KUMAR, J. We concur:

HOFFSTADT, P. J.

MOOR, J.

 Retired Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.