Judge Mitchell L. Beckloff, Case 22STCP01212 2022-07-29 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP01212, Date: 2022-07-29 Tentative Ruling

This action concerns Defendant, Southern California Nessah Educational and Cultural Center, a nonprofit religious corporation, and its leadership.

Plaintiffs, Ben Naim, Joseph Cohen and Fred Pourbaba, individually and collectively on behalf of all of Defendant’s members, seek a judgment recognizing the election of Dr. Shahin Sadik, Simon Etehad, Fred Pourbaba, Parviz Benyamini, Dr. Dan Kahen, Kambiz Zarabi, and Ebi Shofet as “newly elected members of the board of directors” for Defendant. (First Amended Complaint [Complaint] filed May 13, 2022, Prayer.) Alternatively, Plaintiffs seek an order compelling a prompt new election for the board of directors for Defendant. (Complaint, Prayer.)

The court sustains Defendant’s evidentiary objection to Plaintiffs’ Statement of Facts and does not consider the document. While the document may have been provided as a courtesy to the court, it is an unauthorized pleading and runs afoul of the page limits set forth in the California Rules of Court. The court further notes the evidence purportedly supporting the Statement of Facts is all before the court.

Plaintiffs’ evidentiary objections are overruled as follows: Objection number 2, 3, 4, 5, 6, 8, 9, 15, 17 and 22.

Plaintiffs’ evidentiary objections are sustained as follows: Objection number 1, 10, 15, 16, 18 and 23.

Plaintiffs’ evidentiary objections are sustained in part as follows: Objection number 7 (as to “In reaction . . . harassment”), 11 (as to “and he reluctantly . . . current Board”), 12 as to “(note . . . 10:43 am)” and 14 (as to “The transcript . . . Nessah”).

Defendant is a California non-profit religious corporation. Plaintiffs are members of Defendant. (RJN Ex. 2 ¶¶ 1-2.)

Defendant is governed by the Nonprofit Religious Corporation Law of the California Corporations Code (Corp. Code, § 9110 et seq.), as well as Defendant’s articles of incorporation and bylaws. Defendant last amended its bylaws on August 8, 2019 (the Bylaws). (Zomorodi Decl. Ex. 1 at Ex. A.) The Bylaws provide for two classes of members to sit on Defendant’s board of directors—one class consists of persons elected to the position by Defendant’s members, and the other consists of members who formerly served as president of Defendant. (Id. at §§ 3.2, 3.3.)

The Bylaws provide detailed procedures for electing directors. “The Board of Directors shall be elected by mailed ballot or in person at the annual membership meeting.” (Id. at § 3.6.) The Bylaws establish detailed procedural requirements for the election. Defendant provides a brief summary:

“Nessah's Bylaws provide detailed procedures for electing Directors, culminating at the annual membership meeting. See Bylaws—Amended, §3.6. Among other procedural requirements: the annual membership meeting must be held the second Sunday of March each year (§2.5.1); by November 30 of the preceding year, the Board of Directors shall determine ‘the exact number of Directors’ to serve the following term (§3.1); by December 20 of the preceding year, Nessah's President is required to send written notice to members ‘setting forth the requirements for a member to be considered for nomination as a Director’ (§3.5); by January 12, the Nominating Committee ‘shall propose a number of candidates at least sufficient to fill all positions on the Board of Directors’ (§§3.4, 3.5); notice of the annual meeting must be provided by January 22 of each year (§2.5.1); for members to nominate candidates, written petitions signed by at least 26 members in good standing must be submitted by February 5 (§3.5); written ballots must be mailed to members by February 15 (§2.6.1); voting shall be by secret written ballots ‘returned by mail prior to the meeting or in-person at the meeting’ (id.); and the votes shall be tabulated in accordance with ‘Roberts Rules of Order and such other procedures as the Board of Directors shall have established’ Id. A ballot not received prior to or at the meeting is void. Id.” (Opposition 5:14-28.)

This action concerns the 2022 election process for Defendant’s board of directors.

Pursuant to section 3.1 of the Bylaws, at a May 13, 2021 meeting, the board of directors voted to "change the number of directors for the March election in 2022 to ten people."[1] (Zomorodi Decl., Ex. 2 [emphasis added].) At that time, Defendant had 10 directors.[2] (Id. at ¶4.)

From March 2021 through January 2022, Defendant’s ten directors were: (1) Shideh Zarrabian (President–life term); (2) Asher Eshaghpour (Past President–life term); (3) Mehdi Soroudi (Past President–life term); (4) Parviz Okhovat (Past President–life term); (5) Morgan Hakimi (Past President–life term); (6) Jamshid Elist (Past President–life term); (7) Jack Nourafshan (term to expire March 2022); (8) Morris Shamouni (term to expire March 2022); (9) Farhad Zomorodi (term to expire March 2022); and (10) Edna Broukhim (term to expire March 2022). (Ibid.) As six of the ten Directors had life terms, four seats were up for election in 2022.[3]

On December 17, 2021, Defendant’s board of directors informed members of the March 13, 2022 election for its board of directors by email. The communication advised of voting eligibility requirements and the candidate nomination process. (Id., Ex. 4.)

On February 15, 2022, Defendant again notified its members of a written vote for the board of directors. (Complaint Ex. E.) The notice distributed with the ballot to members advised it could be returned in person (by March 13, 2022) or by mail to the election inspector. (Complaint Ex. E.) The voting instructions did not require an in-person appearance on March 13, 2022 to vote.

On January 21, 2022, pursuant to section 3.5 of the Bylaws, Defendant’s nominating committee selected four members as candidates for the election to fill the four vacant seats on the board: Kamran Manuel, Jack Nourafshan, Ebi Yeroshalmi and Farhad Zomorodi. (Zomorodi Decl., Ex. 5.) Defendant advised its members that “[a]dditional nominations may be made by completing the Nessah 2022 Election Petition form (‘petition’) in writing, which must be signed by at least twenty-six (26) Members of Nessah.” (Id. at Ex. 6.)

By February 4, 2022, Defendant received two valid nominating petitions from Parviz Benyamini and Edna Broukhim. (Id. at ¶ 6.) Plaintiff Naim also submitted a nominating petition, but the petition did not comply with the Bylaws and was invalid because six of the 29 persons who signed Plaintiff Naim’s petition had not paid their dues in 2021 and were not members in good standing. (Id. at ¶ 6; Bylaws § 3.5.)

On February 10, 2022, the then president of Defendant's board, Shideh Zarrabian, relinquished her position in response to opposition to several members of the Board. (Id. ¶ 7, Ex. 6.) She reported she had received “bothersome and threatening calls, emails and interruptions by individuals of the opposing team . . . .” (Id. at Ex. 6.) Fahad Zomorodi was thereafter elected by the board as its new president. (Ibid.)

Defendant hired a third party, The Inspections of Election (TIE), to provide election administration services to distribute election packages, return ballots, receive returned ballots and then tabulate the results. (Neudecker Decl. Ex. 16.)

Pursuant to section 2.6.1 of Defendant's Bylaws, on February 15, 2022, TIE mailed to all voting-eligible Defendant members a Notice of Annual Election of Directors. (Zomorodi Decl. Ex. 7.) The Notice contained voting instructions, an official ballot, a secret ballot envelope, and a ballot return/registration envelope. (Ibid.) The notice did not require a member’s appearance at the March 13, 2022 meeting to vote.

Just days before the March 13, 2022 election, five directors (Jamshid Elist, Morris Shamouni, Parviz Okhovat, Morgan Hakimi and Jack Nourafshan) resigned their position on the board based on “threats and harassment.” (Id. at ¶ 9, Ex. 8.)

On March 12, 2022, Defendant hired David Shield Security (DSS) to provide security services at the annual membership meeting scheduled for the following day. (Id. ¶ 10.)

The parties dispute DSS’ role on March 13, 2022. Plaintiffs assert Zomorodi instructed DSS to impede members access to the synagogue. Defendant contends otherwise.

DSS had six security persons present at Defendant on March 13, 2022 starting at about 8:30 a.m. (Neudecker Decl. Ex. 19.) Zomorodi told a DSS supervisor where to post security personnel. (Neudecker Decl. Ex. 19.) DSS tried to create an access point “to set up a way that everybody can smoothly enter without clogging the front entrance and processing people as far as members.” (Neudecker Decl. Ex. 18.) DSS had a membership list and turned away some people who were not on the list. (Neudecker Decl. Ex. 19.) DSS also turned away people who refused to present identification. (Neudecker Decl. Ex. 19.)

The owner of DSS explained security’s role on March 13, 2022 was “to monitor access and to ensure that members [were] allowed to get in and vote.” (Neudecker Decl. Ex. 19.) Security personnel were to announce to people to access the synagogue they had to be a member and provide identification to one of the synagogue’s secretary. (Neudecker Decl. Ex. 19.)

Plaintiffs contend they (and other members of Defendant) conducted Defendant’s annual meeting outside of the synagogue on the sidewalk. At that meeting, members through a voice vote elected Shahin Sadik, Simon Etehad, Fred Pourbaba, Parviz Benyamini, Dan Kahen, Kambiz Zarabi, and Ebi Shofet to Defendant’s board.

Defendant disputes the validity of the meeting conducted outside the synagogue. Defendant asserts the meeting conducted on March 13, 2022 inside the synagogue constituted a lawful and valid annual meeting. Defendant notes most ballots for the board’s election were submitted by mail as permitted by the notice by Defendant and instructions from TIE. (Balter Decl. Ex. 28.)

Defendant filed a separate action for declaratory relief (Case No. 22STCV11232) in this court.

“A¿writ¿of¿mandate¿is available to compel any corporation, board, or person, to do any act which it is required to do by law, or to compel the admission of a person to the use and enjoyment of a right or office to which that person is entitled, and from which the person is unlawfully precluded by the corporation, board, or person.” (Code Civ. Proc., § 1085.)

“Upon the filing of an action therefor by any director or member, or by any person who had the right to vote in the election at issue after such director, member, or person has exhausted any remedies provided in the articles or bylaws, the superior court of the proper county shall determine the validity of any election or appointment of any director of any corporation.” (Corp. Code, § 9418, subd. (a).)

The court, "in conformity with the articles and bylaws to the extent feasible, may determine the person entitled to the office of director or may order a new election to be held." (Id., subd. (c).)

Plaintiffs argue the sidewalk voice vote outside the synagogue on March 13, 2022 was valid and elected members to Defendant’s board. The court disagrees.

First, the court cannot find on the evidence presented Defendant prevented members from entering the synagogue to deliver their ballots. Plaintiffs present little persuasive evidence to support their claim. While Fred Pourbaba attests there was a “phalanx of security guards at the top of the steps” to the synagogue, there is little detail to his testimony the “security guards barred” him or others from “entering the grounds to drop off ballots or participate in the annual members’ meeting.” (Pourbaba Decl., ¶ 10.) Video evidence shows an individual (Zomorodi) inviting people to come into the synagogue to drop off their ballots. (Joseph Decl., Ex. 21; Zomorodi Decl., ¶ 12.) Still photographs also do not support Plaintiffs’ position. (Complaint, Ex. J.)

The court also questions the reliability of Plaintiffs’ witnesses estimates of the crowd that had assembled outside the synagogue. It is also unclear whether all those assembled were members in good standing such that they were eligible to vote. More importantly, there is no estimate of the number of persons who were eligible to vote who were allegedly excluded by security personnel from accessing the synagogue. Plaintiffs have provided no disinterested third-party witness statements.

Accordingly, Plaintiffs do not credibly demonstrate those assembled on the steps of the synagogue were precluded from entering it. In fact, the testimonial and video evidence proffered by Defendant is more credible—persons assembled were invited into the synagogue and apparently chose not to participate. (Zomorodi Decl. Ex. 21-22; Neudecker Decl. Ex. 18-19.)

Defendant’s use of security personnel on March 13, 2022 appears imminently reasonable based on the evidence. Between February 10 and March 12, 2022, one board member (the then President) resigned her position as President because of threats and harassment while five others completely resigned from serving on the board for similar reasons. Nothing in the evidence suggests DSS security personnel intimidated or prevented persons from accessing the synagogue.

The court also notes Defendant advised members through email on March 11, 2022 identification would be required for the meeting. (Zomorodi Decl., Ex. 11.) The requirement that members show identification has been a requirement for at least 10 years.[4] (Id. at ¶ 13, Ex. 12.)

Second, a sidewalk voice vote meeting does not comply with Defendant’s Bylaws where notice has been given the election will be by written ballot.[5] (Complaint, Exs. C and E.) While voting may occur “at the annual membership meeting,” Defendant did not notice a voice election; Defendant noticed an election by written ballot. (Bylaws § 3.6.) Defendant did not instruct its members if they wanted to vote they must appear in person. In fact, the notice indicated ballots could be returned by mail or in person. There was no requirement a member attend the March 13, 2022 meeting to vote. (Complaint, Ex. E.) Plaintiffs position effectively disenfranchises approximately 200 members who did not attend the meeting and otherwise submitted a valid ballot.[6]

Defendant has a clear written procedure governing the election of its board of directors. Defendant provided a clear notice to its members about how they were to vote—by written ballot. While those standing outside the synagogue may have wished to hold the meeting outside, the meeting did not comply with Defendant’s notice of how the board would be elected—by written ballot. As noted by Defendant, those on the sidewalk “had no authority to call a meeting, and by Plaintiffs' own admission: employed no candidate nominating process, jettisoned the properly selected candidates, provided no written ballot, did not employ confidential voting, did not tabulate the votes as required, and did not provide notice.” (Opposition 15:26-16:1.)

Moreover, even assuming the evidence supports Plaintiffs’ claim 225 of Defendant’s members attending the sidewalk meeting (see Balter Decl., Ex. 29), Defendant’s Bylaws required a vote by ballot “listing those candidates proposed by the nominating committee and those candidates, if any, proposed by nominating petition.” (Zomorodi Decl., Ex. 1, § 3.6.) The Bylaws do not envision a voice vote or candidates other than those proposed by the nominating committee or by nominating petition. In fact, the Bylaws also require that ballots be mailed at least 21 days in advance of the meeting and permit returning ballots by mail. (Zomorodi Decl., Ex. 1, § 2.6.1.)

Based on the foregoing, the court finds the voice vote election held outside the synagogue on March 13, 2022 was invalid. The meeting did not comply with Defendant’s notice which required the election to occur by written ballot and did not require a member’s attendance to vote.

Plaintiffs argue alternatively that the court should order a new election because Defendant did not comply with the Bylaw’s quorum requirement. The court disagrees.

Plaintiffs’ argument overlooks that section 2.6 of the Bylaws does not expressly state that there is a requirement for a quorum to attend the annual membership meeting or vote in the election for the board of directors. Section 2.6 of the Bylaws instead states:

Section 2.6. Quorum. A. quorum shall consist of ten percent of all members. All actions taken by the membership shall be by mailed ballot by a majority of those voting unless otherwise specified in the Articles of Incorporation of Nessah, in these Bylaws, or under California law. There shall be no voting by proxy, unless the Board of Directors so decides.

(Zomorodi Decl., Ex. 1.) Notably, the Bylaws only require actions taken by membership occur by mailed ballot and by a majority of those voting. In any event, TIE certified 217 of Defendant’s 811 members voted, which constitutes 24.6 percent of Defendant’s membership. (Balter Decl. Ex. 28.) That number satisfies the 10 percent quorum requirement. All 881 members had an opportunity to vote because they their received ballots by mail as required by Defendant’s Bylaws. (See Corp. Code, § 7513, subd. (b).)

Plaintiffs fail to otherwise identify any other provision or evidence to undermine that a quorum voted by written ballot. While Plaintiffs cite section 2.6.1 of the Bylaws, the provision does not inform on the requirement of a quorum. Instead, it instructs that “[a]ll ballots shall be counted at the conclusion of the noticed meeting in accordance with Roberts Rules of Order.” (Opening Brief 13:23-27 [referring to Zomorodi Decl., Ex. 1.) Bylaws section 2.6.1 merely sets forth the process of ballot counting. Nothing prevented the annual meeting from going forward with an election of the board of directors “by a majority of those voting” so long as more than 10 percent of the members voted. (Bylaws § 2.6.)

A new election is not required as more than 10 percent of Defendant’s members voted in the election.

[1] Defendant’s board of directors “shall consist of no more than thirty-six persons.” (Zomorodi Decl., Ex. 1, § 3.1.)

[2] That there were 10 board members then serving is inconsistent with the language of the board’s minutes reflecting a change.

[3] Pursuant to the Bylaws, “A Past President who becomes such after January 3, 2002 shall be a member of the Board of Directors with the right to vote for four years after his term ends and thereafter shall be a member of the Board of Directors without vote unless such past President shall have attended at least one-half of the meetings of the Board of Directors held in the preceeding [sic] fiscal year.” (Zomorodi Decl., Ex. 1, § 3.3.)

[4] While Plaintiffs contest this issue, Defendant records support Defendant’s claim. (Zomorodi Decl., Ex. 12.)

[5] Moreover, it appears an election by voice vote is not permitted by the Bylaws. (Bylaws § 2.6.)

[6] Plaintiffs suggest only 20 people attended the meeting in the synagogue on March 13, 2022. As there were 217 valid ballots cast, it appears up to 200 members submitted valid ballots and did not attend the meeting.