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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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.
13