The outgoing KPFK LSB MET on Wednesday December 15 at 4 PM in a special emergency meeting to consider and approve the minutes of its past meetings before its term expires with the seating of new delegates, which will take place that same evening, starting at 6 PM. There are separate zoom links posted on https://kpftx.org on the calendar of Pacifica meetings - click on the day to see details of the meeting. The newly elected or re-elected delegates will be seated, the GM will give a report and take questions from LSB members and the public, and then the Board will hear nominations and begin the election process for officers. Because it requires an email ballot if there is a contest, and IRV (instant-runoff-voting) ballots, results will not be known for several days. There will be nominations for directors to the Pacifica National Board, but that election will take place in January. Current directors will report on national matters. We will also take volunteers from the LSB and the public to serve on various LSB committees and the PNB Committee of Inclusion for KPFK.

The KPFK LSB conducted a Town Hall to hear issues people experienced in the last election and ideas people have about restoring Pacifica's luster on Saturday, Nov. 20.

The KPFK listener and staff delegates will on Sunday. Dec. 12 via zoom to vote on any Bylaws Amendments approved by the Pacifica National Board. You can see the four amendments under consideration this cycle on the https://pacifica.org home page. The delegates determined there had been inadequate notice to listeners on the website and on air and decided not to vote on any of the amendments. At least two, if adopted would have required a membership vote which would have been impossible before the end of the calendar year as required. The delegates also defeated two motions to delay the seating of the newly elected or re-elected delegates on Wed. Dec. 15. One would have delayed the seating until the National Election Supervisor issued her ovedue report on the elections (this has now occured, subsequent to the meeting -- see https://elections.pacifica.org for a link to the site of the report which can be downloaded). The other would have delayed the seating until a ruling on a motion in pending litigation on Dec. 29. 

The LSB held its November business meeting on Wed., November 17 at 6 PM Pacific and heard and discussed reports from the General Manager and the PNB directors, and scheduled its next meeting. The newly elected and re-elected delegates were congratulated. A motion to require a re-tally before any delegates could be seated in December was defeated. The PMB directors' reports and the LSB treasurer's report and other documents presented at the meeting follow the next paragraph.

The election process for listener and staff delegates to the Local Station Board was completed on October 15 when quorum was reached for both the listener-sponsor and staff constituencies. The National Elections Supervisor posted the verified results on November 1 at https://elections.pacifica.org but has not yet as of this posting produced the required full report on the elections, nor any explanation of the disqualification of several candidates at KPFK. Newly-elected or re-elected members will be seated and take office at the December meeting of the Local Station Board for a three year term. There will be an election next year for the other half of the LSB, nine listener delegates and three staff delegates.

KPFK will be in a membership drive in December, and the LSB provided a $1000 matching fund to stimulate membership in the station during the last drive.

Directors' Reports:

From PNB Directors Lawrence Reyes & Lydia Ponce

Report To the KPFK LSB, November 17, 2021

LR reports of Service on PNB Committees,

1.         PNB Elections Committee: the entire Elections Committee was very concerned about some of the processes that took place in the most recent completed Network Wide Delegate elections. The PNB Elections Committee opened the Committee process to Public Comment Network Wide, receiving and accepting Testimony from Listeners or staff concerning Delegate Elections concerns. The Committee Secretary, Jeannine Rohn, documented the Public’s concerns about the 2021 LSB Elections.

2.         PNB Governance Committee vetted and addressed New By-Laws amendment Proposals and will continue at its next regularly scheduled meeting on November 24th at 5:30 PM PST, 7:30 Central Time, 8:30pm Eastern Time streaming on www.kpftx.org;  as a reminder, there is an Open By-Laws Proposal Timeline please log on to www.pacifica.org for additional information.

3.         Executive Session report regarding the sale of KPFT Property.

4.         Pacifica Legal Counsel report regarding New Day Litigation and Counter Law Suit a matter of Public Record this Director will be providing a report.

In a labor of Love of Service, Lawrence Reyes & Lydia Ponce, KPFK Listener Directors

From Pacifica's Counsel:

New Day Pacifica, by its attorneys, Jan Goodman and her husband, Jerry Manpearl, four months after the Bylaw vote was announced, and we have all moved on, have not only answered the lawsuit against New Day and Jan, but have filed a Counterclaim, seeking a) to have the New day Bylaws declared in effect, and b) for the right of New Day to use the Pacifica email and mailing list to raise money to pay Jan and Jerry's legal bill, and c) to have the KPFK LSB election overturned. I had hoped that they would just throw in the towel, but they have decided to bring rather baseless litigation (which they had insisted HAD to be litigated in Oakland), focused on the notion that "theoretically" staff members could have elected more PNB members under their bylaws than they are presently guaranteed. As I stated in my statement to the members, it bears relationship to the theories bandied about by Trump lawyers after the election.

Unfortunately, though I make fun, their action will cost us money to fight,. We have reasonably priced California counsel, and I have been admitted to the court  to participate in the litigation (which saves money), this countersuit will drag on for a year or more, and drain needed funds.

Additionally, to the extent it helps, I have included a copy of our First Amended Complaint with notes as to New Day and Goodman's admissions/denials. 

Arthur Z. Schwartz

Principal Attorney Advocates for Justice Chartered Attorneys

President- Advocates for Justice Legal Foundation

General Counsel - Pacifica Foundation

Political Director- NY Progressive Action Network

Democratic District Leader - Greenwich Village, NYC

Law Co-Chair - Manhattan Democratic Party

225 Broadway Suite 1902

New York, New York 10007

Office: 212-285-1400

Cell: 917-923-8136

Fax: 212-285-1410

PNB Director's Report to the KPFK LSB  

Beth von Gunten, PNB Director

November 17, 2021  

Over the course of the last month the KPFK financial crisis has deepened, compelling the focussed attention of the entire Pacifica National Board, because it represents an existential crisis to the network as a whole. The recently concluded KPFK fund drive was the poorest in the history of the station. Immediate course corrections are necessary if we are to continue operations.

In addition to an earlier $150,000 installment, Pacifica has received an additional $350,000 of an Emergency Injury Disaster Loan (EIDL loan), with another $1,500,000 in future increments still possible, though not assured. This has helped satisfy some of our most urgently pressing debts and allowed us to continue operating, but is in no way a long term solution.

Everything necessary to conduct the FY2021 audit is now in place. It is expected to proceed on time for the first time in years now that we've made good on our previous debt to the auditors.

The National Finance Committee has taken up the National Office budget and central services formula as the first of eight Pacifica financial unit budgets to be addressed this year, to be followed by each of the other seven, several of which are now ready and waiting for review. The KPFK budget remains a work in progress.

Over the course of the last month, I've attended all regular and special national board, committee, and task force meetings in which I represent KPFK, including all Pacifica National Board, National Finance Committee, National Strategic Planning Committee, National Development Task Force and other meetings, to assure reliable KPFK representation at the national level.

Having been asked and having agreed to chair the National Development Task Force, the NDTF voted without opposition to confirm my nomination this month. We will identify a range of potential revenue streams, track them over time, and lay out clear steps to realize the most promising of those possibilities with the objective of increasing Pacifica revenue across the board.

Though I recognize no obligation to acknowledge or answer the all to frequent ad hominem attacks, defamation, and other forms of verbal abuse, I'm more than willing to respond to questions, comments, suggestions, and civil critique. I remain ready and willing to serve.

In peace, for Pacifica,

Beth von Gunten

KPFK LSB, PNB Director

Current litigation:

Pacifica suit versus New Day

FOR PURPOSE LAW GROUP, LLP
Mary T. Dowling, Esq. (SBN 299773)
May L. Harris, Esq. (SBN 211210)
Matthew B. Learned, Esq. (SBN 255499)
408 Nutmeg St.
San Diego, CA 92103
Tel: (619) 780-3839
Fax: (619) 780-2451
Email: mlearned@forpurposelaw.com
Attorneys for Plaintiff,
Pacifica Foundation Inc., a California nonprofit public benefit corporation
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
INTRODUCTION
1. This is an action for declaratory relief, injunctive relief and accounting (including
restitution) brought on behalf of the Pacifica Foundation Inc. (“Pacifica” or the “Foundation”), a
not-for-profit membership public benefit corporation (which is listener-supported), addressed to a
recent referendum conducted among its membership. The referendum was addressed to a bylaw
PACIFICA FOUNDATION INC., a California
Nonprofit Public Benefit Corporation
Plaintiff,
vs.
NEW DAY PACIFICA, an Unincorporated
Association, by its Chair, SHARON KYLE;
SHARON KYLE, Individually; JAN
GOODMAN as Vice Chair of New Day
Pacifica and Individually; LYNDON FOLEY,
as Treasurer of New Day Pacifica and
Individually; and AKIO TANAKA, as
Secretary of New Day Pacifica and
Individually; and DOES 1 through 25,
inclusive,
Defendants.
Case No.
VERIFIED FIRST AMENDED
COMPLAINT FOR:
1. DECLARATORY RELIEF;
2. INJUNCTIVE RELIEF;
3. VIOLATION OF CALIFORNIA
CORPORATIONS CODE §§ 6338(a)(1)  & (2);
4. ACCOUNTING; AND
5. UNJUST ENRICHMENT
PACIFICA FOUNDATION FIRST AMENDED COMPLAINT
amendment proposal circulated by defendant New Day Pacifica, an unincorporated association of
mostly Pacifica Foundation members. In that referendum, according to Pacifica’s Bylaws,
approval of by Pacifica’s two classes of voters—listeners and staff—was needed for the proposal
to be adopted. The listener class voted in favor of the proposal, but the staff voted against the
proposal. Given this vote, the election administrator declared the proposal defeated.

Jan Goodman lawsuit for New Day:

MANDEL AND MANPEARL
GERALD T. MANPEARL, SBN 35095
120 Larkin Place
Santa Monica, CA 90402
Tel: 310-614-4586 or 310-729-2394
Email: JerryManpearl@Gmail.com
Attorney for Defendants and Cross-Complainants
NEW DAY PACIFICA, JAN GOODMAN,
SHEILA McCOY, ELIZABETH JENSEN,
MANSOOR SABBAGH, EVELIA JONES
JAN GOODMAN, SBN 65973
120 Larkin Place
Santa Monica, CA 90402
Tel: 310-614-4586 or 310-729-2394
Email JanGoodman.kpfk@Gmail.com
Attorney for Cross-Complainant
NANCY PEARLMAN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
PACIFICA FOUNDATION INC., a California Nonprofit Public Benefit Corporation,
Plaintiff,
vs.
NEW DAY PACIFICA, an Unincorporated Association, et al
Defendants.
_______________________________________
NEW DAY PACIFICA, an Unincorporated Association, JAN GOODMAN, SHEILA McCOY, ELIZABETH JENSEN, MANSOOR SABBAGH, EVELIA JONES, NANCY PEARLMAN
Cross-Complainants
vs.
PACIFICA FOUNDATION, a California Non Profit Corporation, AND ROES 1-200 Cross-Defendants
Case No.: 21BBCV00642
Judge: Hon. William D. Stewart
Dept. A
Date Filed: July 22, 2021
Trial Date: None Set
VERIFIED CROSS COMPLAINT FOR:
(1) Relief under Corp Code 5617; 5034
(2) Injunctive Relief
(3) Declaratory Relief
(4) Regarding 6338(a)(1)
(5) Declaratory Relief re KPFK Local
Board election §§5033 & 5034
(6) Breach of Fiduciary Duty

CROSS COMPLAINANTS ALLEGE:
I. SUMMARY
1. By this action Cross-Complainants seek (i) to validate results of a referendum election wherein the majority voted to adopt new Bylaws for an organization, and management improperly rejected the outcome of election; (ii) to validate Cross-Complainants’ fund raising efforts, (iii) to provide Cross-Complainants access to the organization’s membership list for fund raising purposes, (iv) an order determining outcome of the KPFK Listener Station Board election and (v) additional relief as described below.
 

At its October meeting, the LSB revised its advisory committee membership protocol to eliminate the requirement that committes have a majority of LSB members, and thus to allow all KPFK members who fulfill the requirement to attend three consecutive regular committee meetings to become voting  members of that committee. The LSB also defeated a motion to restrict the LSB@kpfk.org email list exclusively to LSB members to post. The list will continue to open to comments from the public. In collaboration with the GM, we will set up a separate internal business list for the LSB.

At the request of the new GM, the LSB will switch its final two meetings of the year, in November and December, to the third Wednesday evening of the month at 6 PM Pacific, via zoom. Thereafter, the newly-seated board will adopt a schedule for the coming calendar year.

The Community Advisory Board will meet telephonically on Monday, Nov. 15 at 7 PM Pacific. We are seeking additional members rooted in geographic and demographic communities we are or should be serving, who have the expertise to conduct a well-founded, objective community needs assessment of our large listening area. If you are interested in serving, please contact the LSB chair at mnovick.kpfklsb@gmail.com.

The GM has also scheduled the bi-monthly LSB report to the listeners live on-air with listener call-ins for Monday, Nov. 15 from 9-10 PM. Tune in, and call-in with your questions and comments!

The LSB held a special meeting on Wed. Sept 1, and adopted the following motion:

The then-interim GM, Moe Thomas, responded favorably and an initial meeting was held, and two follow-up meetings including staff members, management and paid and unpaid staff; with the new incoming GM, Miquel  Calçada, being kept informed. He officially began on Sept. 15, and gave a written and recorded report at the regular monthly LSB business meeting via zoom on Sunday Sept. 19, provided below.

The strategic planning group developed several initiatives, including arranging for phone-banking software to call out to lapsed and current listeners to get their assessments of what we are doing right and where we can improve, and to seek their financial support. Another project is an appeal letter to organized labor, developed by LSB chair Michael Novick and PNB director Lawrence Reyes (both long-time rank and file labor activists). A third is a series of public affairs webinars by Ali Lexa (a staff delegate on the LSB and PNB director) and Cary Harrison, to promote station membership during and between on-air drives. The LSB will seek to continue this process with the new GM.

PNB director and LSB member Jim Osborne resigned, and was replaced as a director in a special election for the unexpired term by Lydia Ponce. Rob Macon was seated on the LSB per the Bylaws as the next available runner-up. In October, staff delegate Kiyana Williams resigned, and was replaced for the brief remainder of her term by Myla Reson, the next available staff runner-up from the prior completed election.

GM Report

KPFK GM Report to the LSB – Monthly Meeting, Sunday October 17, 2021

Good morning everyone. My first day as the new GM at KPFK was September 15, 2021. During this first month of my tenure, I received 803 emails from staff, unpaid staff, programmers, volunteers, directors of the LSB, members of several LSB committees,  directors of the PNB, former members of the Boards, long-time listeners, contractors, and vendors. I can say that at least a half of those emails are, simply put, noise, interference, in most cases, toxic interference.

My first point in this is asking you to please refrain from using this magnificent tool that is email lists. It doesn't benefit anyone. Nor the person is sending it, not the people caught in that list that don't need to know and don't want to know the resentment embedded in those messages. It is as easy as thinking, "what is the use of the email I'm going to send?" "Does it entails a specific action to be made by the recipient?" If the answer is no, please, don't send it. Get up, take a walk for a couple of minutes, and resume the task you were doing.

This introduction is to make you aware that nobody can do a job if it's constantly interrupted. You can say, "well, you don't have to answer all your emails. You don't have to read all the ones from folks if you already know what they're going to say". Actually, someone sent me this yesterday. The fact of the matter is that if you want to do the job you've been hired for, you have to read them all and answer them. If I don't read them, I don't know what they want from me.During this month, I configured a better picture of the situation at KPFK and Pacifica at large. I guess I only know a fraction of it, but sufficient enough to move ahead.

Yes, I've had to hit the ground running. I don't complain. I want to talk about three critical topics briefly: Financials, Programming, and Governance. It is useless that I describe here the diagnosis of the situation. Pacifica Foundation, and KPFK, have a solid army of people mastering diagnosis. The bottom line is besides plans, programs, new strategies, what do we accomplish tangibly every day? What do we do at the end of the day to overcome this situation? If we do the same we've been doing, we will get the same results. Hence we will no longer be able to sustain the station.  On the governance turf, Pacifica has done the same she has been doing for years, overruling the responsible of the station, me as a GM, and laying off another non-union staff. I have no doubt outsourcing the financial department will positively impact the long run. Yet, the way it was conducted was irresponsible because that puts you, as the LSB, in a very odd situation, not to mention myself. But moving ahead, my goal is primarily to act, and maybe we'll have time to plan later. But now, if we see something, we have to solve it.

Let's start with financials. With the former Business Manager, I reviewed the monthly accounts payable. From this review with him, now with people from NETA, it is clear there are some dysfunctions. This month we have started to move forward to spare, save, shave money from current vendors. Basically, I'm talking about telecommunication providers, meaning telephone services, internet, etc. We've taken the first steps to significantly reduce bills (sometimes getting rid of the vendor straightforwardly). And we've talked to other vendors to review their statements and sometimes get rational explanations or amending bills.

In this report, I'm not going to talk about HR. But, let me say that I am looking forward to PNB's decision on the best last final offer to CBA (Collective Bargaining Agreement). Also, I would like you to know that besides the Business Manager, one of our board operators resigned yesterday. The financial goal would be to balance our FY22 budget against our lowest-income expectations.

But, doing so without taking into account programming would be foolish. Because everything remains the same. Programming has to be remodeled, revamped. Implementing new programming has to be done cautiously. And once done, be patient, and be aware of fine-tuning some of the changes. Yet, programming isn't something that creates listeners/members overnight. We need some time, stability to regain trust among our listeners. I believe we've done lots of things adversely. Think about programming as a field. You can plant whatever seeds you want. But you have to take care of this field. You have to rain it, pull up the weed, and harvest the field if the season has been good. But you cannot constantly reap because every time you do, you are exhausting the crop. And here we are now, with a depleted crop.

Nevertheless, we've already started to move in the right direction by giving programmers some guidance and streamlining the grid. We need to air this field, so we need to gain time and not be desperate every payroll. Therefore, I don't know how, but some subsidies will have to come while we walk/run in the right direction.

Regarding revenues, we've started to work toward regaining the CSG grant from the CPB. If we succeed, the grant would be for FY2023. That means meanwhile, any support from this board trying to get any grant, contribution, gift,  from large donors, etc., will be much appreciated, and I am personally committed to work along with these efforts.

Finally, regarding governance, let me tell you that although I appreciate the different committees from KPFK LSB, it is really complicated for me to attend all. I spoke with the Chair about the possibility of scheduling this monthly meeting on weekdays, preferably before 5 pm. I would appreciate it if you support this initiative. As always, feel free to send me all you think may help the station.

Thank you.

PNB Directors' Reports:   

Beth von Gunten, PNB Director, October 17, 2021   

Pacifica is reaching the financial limit of its ability to proceed with business as usual and is approaching an inflection point. In a long strong Pacifica tradition, those of our eight units in more robust condition financially have been prevailed upon yet again to lend a hand to those units currently under greater financial stress. At this point, those sources have been effectively all but exhausted. A day of reckoning looms. 

Fortunately, managerially we've turned a corner. After an extended period of a serious dearth of leadership at KPFK, Miquel Calçada has stepped forward to take the helm as our new General Manager. While no one person can be expected to shoulder the burden alone, the presence of someone prepared to orchestrate our many mutual efforts can make a significant difference. It's been a long wait. We are fortunate finally to have him with us. 

In another step forward, KPFK financial services have now been moved to and consolidated under NETA, the National Educational Telecommunications Association, reducing those costs by two thirds, a substantial reduction in excess expenses, and a move to further regularize our business practices. 

Pacifica National Finance Committee met in special session this month explicitly to deal with the KPFK financial crisis, in addition to its twice monthly regular meetings. We ratified the hard work so many have put into identifying and reigning in the worst of our long standing excess expenditures, finally approving a FY21 budget, at least in name, though its greater functional value will be as a guidance document in preparing a more realistic prospective FY22 budget. Work on that process continues.

Given our current precarious financial predicament, Pacifica has applied for an EIDL loan, an Emergency Injury Disaster Loan, from the Small Business Administration. If granted, it would provide a loan of as much as $2 million at 2.75% APR for a 30 years term, with a grace period of two years before a first payment would be due. Application has been made, but to the best of my knowledge there's no word yet on whether we'll be granted such a loan.

Debt is never to be taken on lightly, but EIDL loan rates are far preferable to what we're paying now on our considerable debt load. An EIDL loan would buy us time to get our financial house in order and capitalize on the recent progress we've made, bringing all audits up to date and getting budgets in place across the network. 

That work continues apace. With FY21 budgets in hand for seven of the eight Pacifica business units, those can now inform the creation of a FY22 National Office budget, the NFC's intended first FY22 priority, followed then by all other units. 

As reported at the most recent NFC meeting, of the other seven units, one is ready for immediate review, two more were ready to present to their Local Station Boards for approval, two of the smaller units anticipated no delay in completing their budgets, with the remaining two units, including KPFK, in need of significant further work. 

With a more direct  and complete connection to NETA, availability of financial documents is expected to improve. September year end closing financials usually take a bit longer to complete than other months, but NETA may well have them for us at the next NFC mtg. 

That would mean we'd be ready on time for the next audit. At that point, the only remaining obstacle would be that we still owe the auditors for their work on previous audits. That debt must be paid first for us to be able to move forward with the current audit, in order to remain compliant with financial regulations. If granted, the EIDL loan could help meet that need.

Over the course of the last month, I've attended all regular and special national meetings for which I'm responsible to represent KPFK, including all Pacifica National Board, National Finance Committee, National Strategic Planning Committee, National Development Task Force, and other meetings, to assure that KPFK listeners and the LSB always have reliable representation at the national level. 

I've recently been asked to chair the National Development Task Force and have done so on a pro tem basis for the last two meetings. If it pleases the Task Force, I've agreed to continue in that capacity on a regular basis beginning with our next meeting. The NDTF is in the process of identifying a number of potential major revenue streams, laying out clear steps to realizing those possibilities, and accepting assignments to shepherd Pacifica through those processes. 

Our current crisis has necessitated endless background work, collaborating with colleagues at the national level. Many from elsewhere have been more than generous with their time, efforts, and expertise in helping grappling with this existential crisis, for which I'm very grateful. Many thanks to the more experienced colleagues who help inform my work along the way. 

I'm still relatively new to Pacifica governance. Each month that passes I understand Pacifica with greater depth, greater scope, piecing together a more complete understanding of what brings us to this moment. Whatever insight I'm able to gain, I'm grateful for the opportunity to share with others by way of this Report and the extensive contact I enjoy with so many Pacificans throughout the month. Thank you all for your support and for making this work possible.

I'm more than willing to respond to questions, comments, suggestions, and civil critique. But given recent episodes of trolling, I will qualify that by stating plainly that I recognize no obligation to acknowledge or respond to ad hominem attach, defamation, or other forms of verbal abuse. 

Nevertheless, I remain ready to serve. 

In peace, for Pacifica,

Beth von Gunten KPFK LSB, PNB Director

 PNB Director Lawrence Reyes report:

Good morning, Director's report  is being put in email format due to my Laptop key board not functioning properly. I will attach documents for your edification regarding what's happening on the PNB and on a National Level. I believe there are sercet caucus meeting of a majority of PNB Directors acting against the best interest of KPFK with the imposition of decisions which disenfranchizes the efforts of the KPFK Local Station Board to address our immediate concerns with imposing a National Plan where there is None In Place from the National Boards or Committees task to developed such immediate planning. I will report on behalf of the Committees that i'm involved in such as the PNB Election Committee, PNB Governance Committee and some public litigation from our Pacifica Legal Council please see attached.

Lawrence Reyes KPFK Listeners Director report to LSB Oct. 17, 2021

Jan Goodman and her husband appeared in court to argue that our suit to validate the Bylaw vote, and seek to recover money collected by New Day using our list after the vote should be transferred to Alameda County. Jan appeared as counsel for herself and her husband (Jerry Manpearl) as counsel for New Day. The court denied their motion and adopted the decision I attach, and told them that the allegations about using our list - an asset of Pacifica under state law - to raise money was a "very serious allegation."

We filed first because we knew that Jan and New Day would try to sue Pacifica in Oakland. We succeeded. We also learned that New Day has only one "member" and one officer, namely Beth Kean. It has no decision making body, has no internal bylaws, and that whatever is being sent out is all coming from Beth and Jan. The essence of democracy! And they have about $10,000 in hand. (They assert that Jerry Manpearl wants $40,000 in fees to litigate the case.)

Case Number: 21BBCV00642    Hearing Date: October 15, 2021    Dept: A

Motion for Change of Venue

ALLEGATIONS:

Plaintiff Pacifica Foundation Inc., a California Nonprofit Public Benefit Corporation ("Plaintiff") filed suit against Defendants New Day Pacifica, an Unincorporated Association, by its Chair, Sharon Kyle ("New Day"); Sharon Kyle ("Kyle"); Jan Goodman as Vice Chair of New Day Pacifica ("Vice Chair"); Jan Goodman ("Goodman"); Lyndon Foley, as Treasurer of New Day Pacifica ("Treasurer"); Lyndon Foley ("Foley"); Akio Tanaka, as Secretary of New Day Pacifica ("Secretary"); and Akio Tanaka ("Tanaka", and collectively, "Defendants"). Plaintiff alleges that it held a referendum for a bylaw amendment proposal circulated by New Day, an unincorporated association of mostly Plaintiff's members, which failed. Despite this, Defendants publicly declared that the amendment proposal was adopted, and that they were now installed as Plaintiff's officers with control over Plaintiff's assets.

Plaintiff filed a Complaint on July 22, 2021, and a First Amended Complaint ("FAC") on August 30, 2021, alleging five (5) causes of action sounding in: (1) Declaratory Relief; (2) Injunctive Relief; (3) Violation of California Corporations Code §§ 6338(a)(1) & (2); (4) Accounting; and (5) Unjust Enrichment.

PRESENTATION:

The Court received the Motion to Change Venue filed by New Day on October 06, 2021; and the opposition filed by Plaintiff on October 14, 2021.

On October 07, 2021, the Court granted New Day's Ex Parte Application to shorten the time for hearing the Motion to Change Venue and set the hearing date for the motion on October 15, 2021, with opposition to be filed by noon on October 14, 2021 and served electrically, and reply to be filed by 7:00 a.m. on the date of hearing and served electrically. Notice was waived.

RELIEF REQUESTED:

New Day moves for an order transferring the instant action to the Alameda County Superior Court. New Day also requests attorneys' fees and costs incurred by New Day in making the instant motion.

DISCUSSION:

Standard of Review – Change Venue – Under CCP § 397, the court may, on motion, change the place of trial in the following cases: (a) When the court designated in the complaint is not the proper court; (b) When there is reason to believe that an impartial trial cannot be had therein; (c) When the convenience of witnesses and the ends of justice would be promoted by the change; (d) When from any cause there is no judge of the court qualified to act; (e) When a proceeding for dissolution of marriage has been filed in the county in which the petitioner has been a resident for three months next preceding the commencement of the proceeding, and the respondent at the time of the commencement of the proceeding is a resident of another county in this state, to the county of the respondent's residence when the ends of justice would be promoted by the change. (Code Civ. Proc., § 397.)

Merits – New Day argues that the correct venue for the instant action is in the Alameda Superior Court pursuant to CCP §§ 395.2, 396, and 397. New Day contends that Plaintiff intentionally failed to disclose that New Day was registered in Oakland, California, within Alameda County, when filing venue disclosures with the Los Angeles Superior Court clerk, and intentionally avoided naming the single officer of New Day, Elizabeth Kean, a resident of Alameda County, and also intentionally and falsely named various Los Angeles residents as defendants and officers of New Day. New Day argues that transfer of the instant action is mandatory pursuant to CCP § 395.2, which provides:

If an unincorporated association has filed a statement with the Secretary of State pursuant to statute, designating its principal office in this state, the proper county for the trial of an action against the unincorporated association is the same as it would be if the unincorporated association were a corporation and, for the purpose of determining the proper county, the principal place of business of the unincorporated association shall be deemed to be the principal office in this state listed in the statement.

New Day contends that it is a registered unincorporated association with its principal office in Alameda County, and so CCP § 395.2 applies here. New Day further cites to CCP § 396b(a) and argues that transfer of venue is mandatory:

Except as otherwise provided in Section 396a, if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court.

In opposition, Plaintiff first cites to Easton v. Superior Court (1970) 12 Cal.App.3d 243, 247, Clapp v. Kramer (1958) 162 Cal.App.2d 237, 239, and Jhirmack Enterprises, Inc. v. Superior Court (1979) 96 Cal.App.3d 715, 722 and argues that its choice of venue is presumptively correct. Plaintiff also argues that the allegations in the FAC must be taken as true for the purposes of the instant motion, and that in any case, the individual defendants sued are residents of Los Angeles County, which makes this venue appropriate pursuant to CCP § 395. Plaintiff then cites to Donohoe v. Wooster (1912) 163 Cal. 114, 116 for the contention that a defendant is not entitled to have an action removed unless it appears that none of the other defendants are residents of the county in which the action is brought. Plaintiff's counsel asserts that Kyle and Goodman, at least, are Los Angeles County residents and have been personally served in the county. (Decl. Learned, ¶ 5.) Second, Plaintiff argues that Kyle and Goodman hold themselves out to be New Days' "Chair of the Transition Board" and "Vice-Chair of the Transition Board". (Decl. Learned, ¶ 4, Ex. 1.) Third, Plaintiff argues that the parties have previously entered into an agreement that provided that any dispute as to the referendum would be brought in Los Angeles County. (FAC, ¶ 22, Ex. D.) Third, Plaintiff argues that New Day injured Plaintiff in numerous ways within Los Angeles County. Plaintiff argues that New Day should not be awarded any fees, and instead, Plaintiff should be awarded its attorney fees in the amount of $8,480.

Paragraph 14 of the agreement referenced by Plaintiff, attached as Exhibit D to the FAC, states:

Disputes about the process, including issues addressed first by the Committee described in Paragraph 11, will be resolved by a neutral selected by the parties, paid for by Pacifica. The parties, via counsel, will select a neutral upon submission of the Petitions. The parties agree to utilize arbitration, rather than court litigation, to resolve disputes, in the interests of speed and economy. Arbitration hearings shall take place as soon as possible, not later than 7 days of request, and a decision will be issued on the day of the hearing. If compliance does not take place within 5 days, enforcement may be sought by either party by a court of competent jurisdiction in Los Angeles County.

This agreement includes the signature of the counsel of both parties at the bottom. On review of the agreement, the Court finds that facts underlying the instant action are within the bounds of the "process" referenced in the agreement. In interpreting what "process" means, the Court looks to the agreement as a whole and notes that the agreement explains its purpose in its first paragraph: "in order to address issues which may arise should members of New Day Pacifica submit a petition to the Pacifica Foundation with proposals to amend the Pacifica Foundation Bylaws during 2021". As the instant action requests declaratory and injunctive relief relating to alleged actions that New Day has, and is, taking, after the parties disagreed with the result of the amendment proposal, the choice of venue provision in paragraph 14 appears to govern the action. The Court will thus deny the instant motion on this basis.

Further, even if the Court were not to consider the choice of venue clause, the Court may still grant the motion. After taking into account the evidence provided by both parties, the Court finds for the purposes of the motion only that New Day has sufficiently shown that Elizabeth Kean is the sole officer of New Day. (Decl. Kean, ¶¶ 5-6.) Although Plaintiff argues that various defendants represent themselves to be officers on their webpage, Plaintiff does not cite to authority for the contention that a public self-representation has the legal effect of making a person an officer of an organization. For the purposes of the instant motion, the Court will consider Kean the sole officer of New Day. Even so, the FAC alleges, at the least, separate and distinct causes of action against Kyle and Goodman, including causes of action for violation of Corporations Code §§ 6338(a)(1) & (2), accounting, and unjust enrichment. As Plaintiff has sufficiently shown that Kyle and Goodman are residents of Los Angeles County, and as Plaintiff alleges causes of action against the two Defendants that are not reliant on their alleged officer roles, Plaintiff sufficiently rebuts New Day's contention that the FAC improperly sued various defendants in a bid to hold the case in Los Angeles County. To the extent New Day argues that these allegations have no merit, the instant motion is not an appropriate venue for that determination. Thus, pursuant to CCP § 395, which provides that "the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action", the Court will also deny the motion on this basis.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant New Day Pacifica's Motion for Change of Venue came on regularly for hearing on October 15, 2021, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR CHANGE OF VENUE IS DENIED.

• Pacifica Foundation Calendar, Notices and Archives - Calendar and Notices of LSB, CAB and Committee Meetings and Events. All the PNB Committees are listed at the bottom of this page, and the LSB committees and their meeting times are below in the section about the powers and duties of the LSB. Information about when the Boards and Committees meet is available at https://kpftx.org/pacalendar/index.php

  All the latest Board, CAB and Committee meeting information (and access info) is at https://kpftx.org/

• LSB, CAB Committees and Rosters Local Station Board Committees - LSB Chair Contact: mnovick.kpfklsb@gmail.com
  To send an email to the entire Local Station Board use this address - LSB@KPFK.ORG
• CAB - Community Advisory Board in formation. Apply to the LSB Chair.
• LSB Elections - The 2021 Election process for listener and staff delegates is underway. You can see the candidates from all 5 stations here: Pacifica Election Candidate List
• Pacifica National Board Postings

The KPFK Local Station Board welcomes community input. LSB meetings include a half-hour of Public Comments for listeners and others to communicate with the board; we usually divide this in segments over the course of the meeting so the public can comment on different items of business before we vote. We meet the third Sunday of each month at 10:30 AM Pacific time, currently and for the foreseeable future via zoom. Our next meeting is Sunday, August 15. The zoom information is the same each month: 
https://us02web.zoom.us/j/84464153641  Meeting ID: 844 6415 3641 One tap mobile:
+16699006833,,84464153641# US (San Jose) The full agenda is usually available via https://kpftx.org/pacalendar/index.php - click in the date and look for the KPFK LSB listing.

Local station boards are composed of 18 members elected from the general listener-sponsor membership, plus 6 members elected from the paid and unpaid staff of the station. The board also includes the station general manager as an ex-officio member. The current members of the Local Station Board are:

Michael Adler, listener; Allan Beek, listener; Fred Blair, listener, LSB Treasurer; Sandy Childs, listener; Bella De Soto, listener; Jan Goodman, listener; Eric C. Jacobson, listener; Evelia Jones, listener; Ali Lexa Al-Hilali, staff, PNB director; Rob Macon, listener; Barbara Marbach, listener; Michael Novick, listener, LSB Chair; Robert Payne, listener; Lydia Poncé, listener, PNB director; Lawrence Reyes, listener, PNB director; Rocio Rivas, listener, LSB Vice-chair; Paul Roberson, listener; Jeanine Rohn, listener, LSB Secretary; Mansoor Sabbagh, staff; Oscar Ulloa, staff; Polina Vasiliev, staff, PNB Secretary; Elizabeth von Gunten, listener, PNB director; Harvey Wasserman, staff; Kiyana Williams, staff. Ex officio: Moe Thomas, interim General Manager.

LSB terms of office are 3 years and are staggered: half the members are elected one year, the other half the next year, and elections are not held in the third year. Listeners must be KPFK members in order to vote in station board elections. Becoming a member is easy: all it takes is a minimum contribution of $25 per year, or three hours of supervised volunteer work for the station. We encourage all listeners to join and have a voice in their station. In the LSB delegate election process now underway, listener members will be electing 9 listener delegates, and staff members will be electing 3 staff delegates; all 12 will be seated and begin serving in December. Any individual member of the LSB can serve a maximum of six consecutive years and then must be off the board for at least a year before being able to serve again.

The local station board elects 4 representatives (three listener members plus one staff member) to the Pacifica National Board in January each year. The Pacifica National Board sets policies for the network as a whole. Members of the LSB may help support the station through fund raising and outreach. In addition, members also volunteer or are elected to standing committees of the Pacifica National Board listed below.

Local station board members are called “delegates,” while those elected to the national board are called “directors.” A complete description of the Pacifica governance system is detailed in the Pacifica bylaws.

You can find out more about the Local Station Boards here, in the Pacifica Foundation Bylaws: Article Seven: Local Station Boards (pacifica.org)

From the Bylaws, these are the powers and duties of the LSB, after each of which we note the committee charged with implementing that responsibility:

A. To review and approve that station's budget and make quarterly reports to the Foundation's Board of Directors regarding the station's budget, actual income and expenditures. LSB Finance Committee (meets the Wed. before LSB meeting, 4 PM Pacific)

B. To screen and select a pool of candidates for the position of General Manager of its respective radio station, from which pool of approved candidates the Executive Director shall hire the station's General Manager.. The LSB may appoint a special sub-committee for this purpose. GM Search Committee (elected for the purpose) (met this year and recommended a pool from which iED named new GM).

C. To prepare an annual written evaluation of the station's General Manager. Personnel Committee

D. Both the Executive Director and/or an LSB may initiate the process to fire a station General Manager. However, to effectuate it, both the Executive Director and the LSB must agree to fire said General Manager. If the Executive Director and the LSB cannot agree, the decision to terminate or retain said General Manager shall be made by the Board of Directors.

E. To screen and select a pool of candidates for the position of station Program Director, from which pool of approved candidates the station's General Manager shall hire the station's Program Director. The LSB may appoint a special sub-committee for this purpose. PD Search Committee (elected for the purpose)

F. To prepare an annual written evaluation of the station's Program Director. Personnel Committee

G. To work with station management to ensure that station programming fulfills the purposes of the Foundation and is responsive to the diverse needs of the listeners (demographic) and communities (geographic) served by the station, and that station policies and procedures for making programming decisions and for program evaluation are working in a fair, collaborative and respectful manner to provide quality programming. Programming Oversight Committee (meets third Mondays, 4 PM Pacific)

H. To conduct "Town Hall" style meetings at least twice a year, devoted to hearing listeners views, needs and concerns. Outreach Committee (meets last Sundays, 11:30 AM Pacific) A town hall is planned for late September.

I. To assist in station fundraising activities. Fundraising Committee (awaiting new convenor)

J. To actively reach out to underrepresented communities to help the station serve a diversity of all races, creeds, colors and nations, classes, genders and sexual orientations, and ages and to help build collaborative relations with organizations working for similar purposes. PNB Committee of Inclusion at KPFK (One director, three delegates who may add members) (meets 2nd Mondays, 4:30 PM Pacific)

K. To perform community needs assessments, or see to it that separate "Community Advisory Committees" are formed to do so. KPFK Community Advisory Board (in formation) If interested, apply to the LSB Chair by email mnovick.kpfklsb@gmail.com; put CAB in the subject line. Include any pertinent competencies and community connections. Meeting at least quarterly, 3rd Monday, 7 PM Pacific - next Oct. 18)

L. To ensure that the station works diligently towards the goal of diversity in staffing at all levels and maintenance of a discrimination-free atmosphere in the workplace. Committee of Inclusion

M. To exercise all of its powers and duties with care, loyalty, diligence and sound business judgment consistent with the manner in which those terms are generally defined under applicable California law.

The LSB also has a Governance Committee which usually meets 7:30 PM Pacific on the Wednesday evening prior to the LSB meeting, with the principal responsibility of preparing a draft agenda for the LSB meeting, incorporating reports from the other working committees. The PNB directors and the General Manager also usually prepare monthly reports for the Local Station Board which are discussed at the meetings.

There is a listserve for news and announcements from the KPFK LSB (not a discussion list): kpfklsbnews@lists.riseup.net. To subscribe and receive a weekly email about LSB and committee meetings and related matter, send a blank email with the subject line subscribe kpfklsbnews ​​​sympa@lists.riseup.net and you will receive a message to authenticate your request and join the list.

Here's a report on recent PNB activity by Director Elizabeth von Gunten of the KPFK LSB:

PNB Director's Report to KPFK LSB from Director Elizabeth von Gunten, August 15, 2021

Pacifica continues to enjoy the benefits of improving financial self discipline. Our contract with NETA is bringing a necessary and very welcome internal regularity to our internal business administration, establishing routine business practices, clarifying and bringing past accounting up to date, and lay out an orderly path into strategic planning and a more predictable future. 

As a consequence, Pacifica's overall financial prospects continue to improve, with KPFK being the single notable exception in that regard. Pacifica FY2020 audit and our 501(c)(3) IRS 990 reporting have both been completed, with all audits now up to date for the first time since 2012. Timely completion of future audits will be greatly facilitated with this previous work now in place. 

Newly available Pacifica pensions information has resolved outstanding concerns regarding Pacifica pension funding, thus lifting a disclaimer regarding previous arrearages, bringing what was a possible debt of upward of $500,000 down to an actual debt of only about $8,000, greatly alleviating our most immediate financial pressure. 

Work has been completed on six of the eight Pacifica financial unit budgets. A KPFK FY21 budget is expected to be approved at the next NFC meeting in time to use it as a starting point and template for a timely FY22 budget. With budgets in place for all seven operational Pacifica units, a National Office budget will be the final piece. 

It has been a major effort to resurrect a standard budget process across the networks, but having these initial budgets in place this year provides a sound starting point and template for a return to more regular business practices into the future. Adopting such practices has assured that we were able to qualify to extend the crucial JFC loan on good terms. We continue to service the loan on time and without interruption. 

In addition, the federal government, recognizing its vested interest in assuring the ongoing viability of critical infrastructure such as radio communications throughout the roughest stretches of the pandemic, took bold action to support and protect a broad array of such community assets, including Pacifica, to our great good fortune. 

It is to the advantage of the community as a whole for institutions such as Pacifica to continue to operate without interruption throughout any major material, economic, or social disruption such as the pandemic. The PPP funding we qualified to receive functioned as it was intended, to stabilized strategic community assets across the country. Pacifica was by no means the only beneficiary to have benefited from this foresight. 

Other current financial work deferred to allow completion of the audits has resumed, resulting in increasingly current financials for most recent months.

There are concerns at the national level about the ongoing crisis at KPFK having consequences for the network as a whole. Finance, programming, personnel, and management are all showing the effects of being left in limbo for months as our local situation deteriorates. 

Directors of any nonprofit such as Pacifica bear a fiduciary duty, a legal obligation to do all within our power to promote the best interests of Pacifica. We also bear a legal duty to warn of any perceived dangers to the institution. 

While I appreciate the necessary self examination undertaken by our critics, publicly disparagement of internal challenges can have the unintended consequences of undermining the prospects and credibility of the institution we all love and which we are legally bound to defend and protect. 

Any sincere critique should avail itself of the profoundly inclusive, participatory, democratic processes provided within Pacifica governance and should rightly be accompanied by a commensurate internal effort to correct perceived inadequacies. 

This monthly Report is intended to keep all apprised of my own such efforts, and as an invitation to all to look for an opening in which you can bring forth your own gifts, whatever they may be, to support Pacifica in its hour of need.

Over the course of the last month I've attended all local and national board, committee, and task force meetings in which I'm responsible to represent the KPFK LSB and listeners including all Pacifica National Board meetings, National Finance Committee and Strategic Planning Committee meetings. 

At my request, the Pacifica Development Task Force has reconvened and is now slated to meet Monday, August 23, 2021, at 5:30pm PT, and regularly thereafter. I'm working with the chair to develop a strategic development plan. 

The Pacifica National Technology Task Force has begun meeting regularly fir presentations and discussion of how best to configure Pacifica to meet the needs of the future. 

In addition, I've been attending the National Bylaws Task Force. 

I was recently asked to address the Pacifica Affiliates Roundtable on Pacifica's role in Emergence Response, beginning with regular Public Service Preparedness Announcements. We've begun to stand up a Pacifica Resilience Work Group to meet on an ongoing basis. 

Please feel free to contact me with any questions, comments, or concerns about our work at the national level now or at any time throughout the month and I'll do my best to respond. 

Respectfully submitted, Beth von Gunten KPFK LSB, PNB Director 

PNB COMMITTEES, WORKING GROUP & TASKFORCES

Unless otherwise stated, composition per station on the PNB Committees is up to 2 directors (elected by PNB) and 2 station Delegates (elected by LSBs). LSB members may join the PNB Working Group. Affiliate directors may join any task force and any group except Committees of Inclusion, Coordinating and Finance.

COMMITTEES

AUDIT

• oversees annual audit: reviews and recommends potential auditors. Excludes Finance Committee members.

COMMITTEE OF INCLUSION at each station  (1 director & 3 delegates – elected by their LSB)

• monitors the under-representation of communities in station programming and staffing and the diversity of election candidates.

COORDINATING – (up to 2 directors per station, board officers, natl. mgmt.)

• coordinates PNB activities between meetings, especially in-person meetings

ELECTIONS

• helps with the planning for Local Station Board/Delegate elections including making recommendations for cost-cutting etc.

FINANCE – (1 director per station, each LSB treasurer, CFO)

• reviews and recommends the annual budget to PNB; monitors and reports Foundation financial activities at least quarterly

GOVERNANCE

• regularly reviews the Foundation’s bylaws and policies for governance of Board activities

PERSONNEL – (up to 2 directors per station, up to 2 affil.)

• prepares evaluation of the Executive Director (ED) and Chief Financial Officer (CFO)

PROGRAMMING

• insures that programming at Foundation stations meets and fulfills the Foundation’s purposes: