Filed 5/24/24 Mackel v. McDonough CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

VIRGINIA A. MACKEL,

 Plaintiff and Respondent,

v.

PAUL MCDONOUGH,

 Defendant and Appellant.

2d Crim. No. B324520

(Super. Ct. No. 56-2021-00556620-

CU-WM-VTA)

(Ventura County)

Paul McDonough appeals a judgment entered after the trial 

court granted a motion for a writ of mandate sought by Virginia 

A. Mackel, the co-manager of four limited liability companies that 

she and McDonough jointly manage. (Code Civ. Proc., § 1085; 

Corp. Code, § 1603, subd. (a).)1 We affirm. 

This appeal concerns an amended petition for writ of 

mandate filed by a co-manager of four limited liability companies 

1 We deny Mackel’s motion to dismiss McDonough’s appeal. 

Although McDonough may have complied with the writ of 

mandate following the judgment in favor of Mackel, that 

compliance does not respond to all the issues he raises on appeal.
2

(collectively CVP Companies) seeking the production of company 

books and records for inspection and copying, and the return of 

the books and records to the principal business office. The CVP 

Companies own and operate separate parcels of real estate that 

comprise a Thousand Oaks shopping center, the “Conejo Valley 

Shopping Center.” Mackel and McDonough’s father developed 

the companies and, as part of his estate plan, transferred 

ownership to them as co-managers. In June 2021, McDonough 

unilaterally moved the CVP Companies’ books and records from 

the longtime business office to his home, and then to a different 

office. Despite Mackel’s repeated demands, McDonough refused 

to return the books and records and allow Mackel to inspect and 

copy them. 

FACTUAL AND PROCEDURAL HISTORY

The operating agreements for the CVP Companies state 

that “[t]he business of the Company shall be managed by the 

Manager (which term includes co-Managers),” and that the 

“Manager shall be Paul J. McDonough and Virginia A. Mackel, or 

any successor Manager elected as provided [herein].” The 

operating agreements provide the co-managers with the “full, 

exclusive and complete” power and authority to jointly manage 

the CVP Companies. The operating agreements also require a 

designated principal office in a location determined by the 

co-managers. Three of the companies designated an office at 

32123 Lindero Canyon Road and the fourth company designated 

a principal office at 725 Lakefield Road. On January 1, 2012, the 

co-managers entered into a written lease for the Lindero Canyon 

Road office and moved the CVP Companies records to that office.

In June 2021, without notice to Mackel and without her 

consent, McDonough removed the books and records of the CVP 
3

Companies. Mackel repeatedly demanded that McDonough 

return the books and records to the Lindero Canyon Road office

for her inspection and copying, but McDonough stated various 

reasons for not doing so. In an e-mail to Mackel, McDonough 

admitted that “[n]either of us can remove the records without the 

other person[’]s prior written approval.” 

McDonough initially moved the books and records to his 

home and later to the office of Capital Real Estate Advisors 

(CREA) located at 973 South Westlake Boulevard. CREA is a 

property administrator employed by the CVP Companies to 

collect rents and pay vendors, among other things.

Mackel was later granted access to the Westlake Boulevard 

office by a CREA administrator. Mackel believed that some 

records were missing. She also noticed that documents were 

scattered and detached and some were in trash bags. Mackel had 

difficulty gaining access to the office because it was frequently 

closed and no one was available to provide access.

Prior to Mackel’s visit to the Westlake Boulevard office, she 

filed a verified petition for writ of mandate concerning access to 

the books and records and their return to the Lindero Canyon 

Road office. McDonough contested the petition. Following oral 

argument, the trial court granted Mackel’s motion for a writ of 

mandate and ordered McDonough to produce all existing 

company books and records for inspection and copying. The writ 

also ordered McDonough to return all existing company books 

and records to the Lindero Canyon Road office and maintain 

them there as long as that office remained the business office of 

the CVP companies. Finally, the order stated that Mackel was 

the prevailing party “to the extent that she is entitled” to 

attorney fees. 
4

McDonough appeals and contends that the trial court erred 

by: 1) ordering him to produce the books and records because he 

never refused Mackel’s requests for inspection; 2) ordering him to 

produce documents beyond the scope of Corporations Code 

sections 17704.10 and 17701.13; and 3) finding the principal 

office as Lindero Canyon Road rather than the location (El 

Segundo) provided as a principal place of business to the 

California Secretary of State.

DISCUSSION

I.

McDonough argues that Mackel was not denied an 

opportunity to inspect the books and records, and asserts that she 

did inspect and photocopy documents on many occasions at the 

Westlake Boulevard office. He claims the issue is one of law 

because a writ order cannot require performance of an action that 

a person has not previously refused to perform.

The trial court found that McDonough provided some 

documents for inspection to Mackel, but that he claimed the 

production “should be limited in scope.” From this argument, the 

court drew the reasonable inference that McDonough was 

withholding documents. Mackel asserted that some documents 

were missing when she inspected and copied the books and 

records. She saw that documents were detached and others

placed into trash bags. Mackel provided two photographs of the 

documents in disarray. The court found that McDonough refused 

production of existing books and records at the Lindero Canyon 

Road office. Viewing the evidence and drawing reasonable 

inferences favorably to the judgment, substantial evidence 

supports this factual finding. (Fowler v. Golden Pacific Bancorp, 

Inc. (2022) 80 Cal.App.5th 205, 218 [substantial evidence 
5

standard of review applies to trial court’s judgment granting 

mandamus petition].) 

II.

For the first time on appeal, McDonough asserts that the 

writ order is overbroad because it orders the production of his 

correspondence and personal e-mails, certain documents equally 

available to Mackel, original books and records, and documents 

without any time limitation.

We disagree with McDonough’s interpretation of the writ 

order. The order compels the production and return of CVP 

Companies’ existing books and records that McDonough took from 

the Lindero Canyon Road office. A writ of mandate properly is 

used to compel a party to return corporate books and records to 

the principal place of business. (Liberal Catholic Church v. 

Rogers (1944) 65 Cal.App.2d 196, 199-200.) The order does not 

compel production of McDonough’s personal e-mails unrelated to 

the CVP Companies; it is limited to “company books and records.” 

“By analogy, Corporation Code section 1602, applicable to 

corporations, states that corporate directors have the “absolute 

right” at any reasonable time to inspect and copy all corporate 

books, records, and documents of every kind.” (Tritek Telecom, 

Inc. v. Superior Court (2009) 169 Cal.App.4th 1385, 1390.) 

Corporations Code section 17701.13, subdivision (d) lists the 

documents a limited liability company shall maintain at its 

business office, including the books and records regarding 

internal affairs for the current and prior four fiscal years. (Id.,

subd. (d)(7).) The writ order expressly refers to correspondence 

and e-mails related to the CVP Companies’ activities from 

January 1, 2021, to date.
6

Moreover, McDonough did not raise the specific 

overbreadth arguments in the trial court. Thus, he has forfeited 

the arguments here. As a general rule, theories not raised in the 

trial court cannot be asserted for the first time on appeal. (Nellie 

Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 

997.) This rule rests upon fairness to the trial court and to 

opposing litigants. (Ibid.) “Bait and switch” on appeal subjects 

the parties to additional expenses and overburdens the judicial 

system. (Ibid.) 

III.

McDonough argues that the trial court erred by finding 

that the CVP Companies’ “principal office” was the Lindero 

Canyon Road office, and not the El Segundo office of CREA.

In filings with the California Secretary of State in 2019, the 

CVP Companies stated that the CREA office located at 222 N. 

Pacific Coast Highway, El Segundo, California, was and had been 

the principal office for the companies. McDonough adds that the 

written lease for the Lindero Canyon Road office expired on June 

30, 2021, prompting his removal of the books and records.

The trial court’s factual finding that the Lindero Canyon 

Road office was the designated and principal office of the CVP 

Companies is supported by substantial evidence. The operating 

agreements of the four limited liability companies required 

designation of a principal office. McDonough and Mackel chose 

the Lindero Canyon Road office, maintained the books and 

records there, and occupied the office pursuant to a 10-year 

written lease. Following termination of the lease term, the 

companies have occupied the office as holdover tenants on a 

month-to-month basis. The court’s judgment indicates that the 

books and records shall be maintained at the Lindero Canyon 
7

Road office so long as that office remains the principal office of 

the CVP Companies.

McDonough’s argument regarding the “principal place of 

business” for the CVP Companies appears to concern matters of 

venue. The argument is irrelevant here.

In sum, the trial court did not abuse its discretion by 

issuing the writ of mandate here. (Richardson v. Franc (2015)

233 Cal.App.4th 744, 757 [trial court may exercise its broad 

equitable discretion and fashion relief to fit the specific facts of 

the case].)

DISPOSITION

The judgment is affirmed. Mackel shall recover costs.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

BALTODANO, J.

CODY, J.
8

Benjamin F. Coats, Judge

Superior Court County of Ventura

______________________________

Loeb & Loeb and Oleg Stolyar for Defendant and 

Appellant.

Seltzer Caplan McMahon Vitek, Neal P. Panish and Jake 

D. Sesti for Plaintiff and Respondent.