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Tentative Rulings, Nevada City - Law and Motion

>Case No. CU12-078702, Daus v. Howser, 6/24/2016
>Case No. CU16-081699, In re Symetra Assigned Benefits, 6/24/2016
>REVISED Case No. CL16-081599, Cab West LLC v. Walker, 6/24/2016
>Case No. CU15-081016, Bonham v. Basso, 6/24/2016

Case No. CU12-078702, Daus v. Howser, 6/24/2016 

Defendants’ Motion for Summary Judgment is granted.

Objections to Evidence

Plaintiffs’ Objections to Defendant’s Motion for Summary Judgment filed June 10, 2016 is overruled. A party may object to evidence. Plaintiffs’ “objections” actually comment on the format of Defendants’ papers, not the evidence cited therein.

Defendants’ Objections to Plaintiffs’ Evidence filed June 17, 2016, are sustained as to: the Declaration of Hall No. 2 (hearsay); Daus Declaration No. 6 (lacks exhibit). The remaining objections are overruled.

Standard of Review

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th 289, 294.

Bylaws/Advice of Counsel

Defendants first contend that all causes of action are barred by paragraphs 12.2 and 2.14 of the bylaws of the corporation. Those provisions provided, in pertinent part, that the officers and directors will not be held liable to shareholders where legal counsel has been relied on in a matter. Likewise, Defendants contend that they are not liable for any of the conduct alleged because they relied on the advice of their attorney, Moore.

Plaintiffs, in turn, rely on section 2.15 to argue that a conflict of interest transaction “is authorized, approved or ratified if it receives the affirmative vote of a majority of the Directors on the board of Directors, or on the committee, who have no direct or indirect interest in the transaction.” Plaintiffs contend that all persons who voted on the compensation committee had a direct interest in the transaction so the conflict of interest was not ratified or approved.

Defendants, in response, then cite to the subsection which provides a “conflict of interest transaction is not voidable” if the material facts of the transaction were disclosed to the Board, the material facts were disclosed to the shareholders entitled to vote and they authorized the transaction, OR the transaction was fair to the company.

Here, the Court finds that ratification could not have occurred under section 2.15 because the individuals who voted had a direct interest.

However, it is clear that the material facts of the transaction relating to compensation were disclosed to the Board, as it was other Board members who voted in the compensation committee.

Therefore, the Court finds that Defendants are correct in their analysis that all causes of action are barred under the terms of the bylaws, with the advice of counsel, and Plaintiffs have failed to demonstrate a triable issue of material fact as to this defense.

Although the Court’s analysis could end, here, because all conduct alleged are allowable by the bylaws, the Court will address the remaining arguments in the event of appeal.

Business Judgment Rule

Defendants argue that directors are not liable for actions if they were done in good faith and thought to be in the best interests of the corporation.

Here, the Court finds no triable issue of material fact as to whether or not such actions relating to the re-structuring of income and dividends and individuals’ pay was done pursuant to the business judgment rule. Both Plaintiffs’ responses to Request for Admissions admit such assertions. See RFAs 10-13, attached as Exhibit 13 to the motion.

Thus, this argument is another ground upon which this court is granting the motion for summary judgment.

Fraud

Next, Defendants contend that Plaintiffs have failed to demonstrate the required elements of actionable misrepresentation and reliance so as to support a claim for fraud.

As for the alleged fraud by failing to disclose that Defendants had received legal advice from Andy Moore, such contention is without merit because Plaintiffs learned about his consultation before the March 22, 2011 meeting. See Daus Dep. 67:1-4.

As for the alleged fraud that Defendants failed to inform Plaintiffs about the changes approved by the compensation committee or financial information, Plaintiffs admitted to receiving the information. See Daus Depo. 41-42, 59-62, 119-123.

As for the alleged misrepresentations on tax returns, Plaintiffs have failed to demonstration any reliance to their detriment on such documents or damages therewith.

Plaintiffs have also failed to demonstrate any reliance on any of these purported misrepresentations. As stated by the Third District Court of Appeals, this does not establish reliance because Plaintiffs were always going to be outvoted by the majority shareholders.

Thus, Plaintiffs have failed to demonstrate a triable issue of material fact relating to the fraud claims.

Conversion

Defendants argue that the loss of money does not support a claim for conversion unless the amount is capable of identification. Defendants argue that Plaintiffs have only speculated as to their losses.

As to this cause of action, the court finds Defendants’ argument without merit. Plaintiffs have demonstrated the specific amount of loss as set forth in Exhibit 1 to the Declaration of Hall.

Thus, the granting of the motion for summary judgment is not based on the contentions set forth by defendants as to this cause of action alone.

Conspiracy

Defendants contend, first, that the allegations of conspiracy with attorney Moore fail as a matter of law due to the Third District Court of Appeal’s ruling relating to the ruling on Moore’s demurrer. Defendants are correct. Because the allegations relating to Mr. Moore have been dismissed, this conspiracy claim fails.

Defendants also contend that the conspiracy claims as alleged amongst each other also fail because conspiracy is dependent upon the other claims which fail. Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 206 (“Civil conspiracy is not an independent tort.”). Defendants are correct. Conspiracy is dependent upon the other claims. Because the prior claims fail, so, too, does this claim.

Injunction

Defendants argue that injunctive relief is a remedy, not a cause of action. Therefore, they contend that because all other claims fails, so too does this one. Defendants are correct.

Punitive Damages

Defendants argue here that Plaintiffs have failed to demonstrate fraud, oppression, or malice in order to support punitive damages. Because Plaintiffs have failed to establish fraud, as set forth above, Plaintiffs have failed to demonstrate a triable issue of material fact as to this claim.

Conclusion

Based on the foregoing, Defendants’ Motion for Summary Judgment is granted.

Moving party’s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.

This is the Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s law and motion secretary at (530) 265-1273 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.


Case No. CU16-081699, In re Symetra Assigned Benefits, 6/24/2016 

The Petition for Approval of Transfer of Structured Settlement Payment Rights is denied without prejudice. There are no declarations filed in support of the petition and no exhibits. The court’s file is missing a copy of the proposed transfer agreement, a listing of payee’s dependents, and the annuity contract or underlying structured settlement agreement. Further, there is no Proof of Service of the Petition in the court’s file demonstrating service on the Applicant or any other interested party. Additionally, while the petition states that the Attorney General was served, there is no proof of service on the Attorney General’s office.

Moving party’s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.

This is the Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s law and motion secretary at (530) 265-1273 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.


REVISED Case No. CL16-081599, Cab West LLC v. Walker, 6/24/2016 

Plaintiff’s Application for Writ of Possession is granted.

Moving party’s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.

This is the Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s law and motion secretary at (530) 265-1273 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.


Case No. CU15-081016, Bonham v. Basso, 6/24/2016 

The Court hereby appoints Jessica Spinelli as referee with the powers and duties set forth in this court’s order filed May 31, 2016.

Plaintiff’s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.

This is the Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s law and motion secretary at (530) 265-1273 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.