# I argued in front of the Court of Appeal today. **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [May 15, 2010, 4:05am UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510 "2010-05-15T04:05:16Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 16, 2010, 7:24pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/41 "2010-05-16T19:24:36Z")
**Stoid** , I hope that if you don’t win, the appeals court at least explains its reasoning to your satisfaction. I’m still not quite following what happened though. Did the lower court ultimately rule that 17351 was the controlling law for Plaintiff’s action? Also, is it correct that you didn’t move to purchase his share to avoid dissolution until after there was a trial on the merits regarding dissolution? ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [May 16, 2010, 7:25pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/42 "2010-05-16T19:25:28Z")
Before I go out for the rest of the day, two things. One: THANK YOU to the people who have expressed their support. I VERY MUCH APPRECIATE IT! THANK YOU THANK YOU THANK YOU. Secondly, since this has been out of order, a quick ordering of it. 1. The last conversation posted happened on Jan 9, 2008, the third day of trial. It’s hard to follow, but it boils down to the judge clearly saying, yeah, if we’re going to let Stoid buy him out under 17351, I must first make a judgment for dissolution. Among other things, but thats the part that counts. 2. The first big transcript with all the snark happened the very next day, January 10, 2008, as the judge was telling us what her verdict was, what the judgment would contain. The judgment was supposed to be written within 10 days, but it wasnt’ entered untl March 25, 2008. 3. Between those dates, I filed motions for reconsideration, new trial, vacate judgment, etc. All directed at telling her: The law says I can buy him out, let me. She denied the motions because of procedural reasons and made no comment of any kind as to the content. 4. March 25, she filed the judgment that said I could buy my own member interest for cash while my could also bid on the assets. 5. The receiver said the business was worth $XXX. Ex said he agreed, I said I agreed, and therefore I am just buying you out, since we agree on what it’s worth. Here, judge, this is what I’m doing. 17351 says we only need you if we can’t agree on price, well, we agree on price. 6. Ex says, yeah on price but hey, you said I could buy, too. 7. Papers filed arguing. 8. She rules that i am too late, I had to do it before judgment. Here is my interpretation: She’s never adjudicated a business dissolution in her life. She is barely following what’s happening. She’s used to dealing with criminals and victims. She’s made me the criminal (at Evil lawyer’s urging) and Ex the victim. She’s used to having a lot of discretion. Victim’s lawyer says the law isn’t fair. She thinks he’s right and she’s the JUDGE, so she goes with his idea without really thinking it through. Evil lawyer keeps pounding on me to her, telling her how horrible I am in declarations, oppositions, and in court. So she blows off my motions without giving them any consideration. I make my election. She knows I’m right. She’s got a really big ego and now I’m starting to piss her off bigtime. PLUS…I’m no longer represented by counsel. Hell, she can brush me off like a fly. So… even though she KNOWS she’s full of shit, (see transcript of Day Three) she says I’m too late, expecting me to just accept it and go away. I bring her cases proving I’m not too late. She doesn’t even BOTHER to justify her ruling in light of those cases, she just lets it stand. Because I’m self-represented and she thinks I’m going to give up sooner rather than later. Now you are an appellate justice. Your job is to ferret out the truth and accurately, fairly determine whether the law has been followed correctly. You are predisposed to accept that a judgment is correct, but you have to write a full on opinion giving an in-depth explanation of WHY the judgment IS correct. Good luck with that. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 16, 2010, 7:33pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/43 "2010-05-16T19:33:24Z")
> [@Stoid](#): > > Because I’m self-represented and she thinks I’m going to give up sooner rather than later. FWIW, the conventional wisdom among judges is precisely the opposite. Self-represented parties are exponentially more likely to appeal. In fact, I would guess that most judge’s reversals are on appeals from self-represented parties, because errors are frequently made in the interpretation of what a self-represented party is actually asking for, and because represented parties often do a better job of laying out the relevant law so that the judge makes the right decision. ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [May 16, 2010, 7:36pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/44 "2010-05-16T19:36:56Z")
> [@Richard\_Parker](#): > > **Stoid** , I hope that if you don’t win, the appeals court at least explains its reasoning to your satisfaction. > > I’m still not quite following what happened though. Did the lower court ultimately rule that 17351 was the controlling law for Plaintiff’s action? Also, is it correct that you didn’t move to purchase his share to avoid dissolution until after there was a trial on the merits regarding dissolution? YES, 17351 was the controlling law, that was the law we were dissolved under, the controlling law for everything that happened in relation except, of course, my desire to stop it via buyout. I did not move to purchase his share until after the judgment, although I could have before. The law doesn’t have a requirement either way; all the cases are different. In some, they moved after judgment, others they cross-complained and asked for that relief, and in others they made a motion prior to judgment within the original action. Interestingly, the law explicitly states you can make your motion within the pending action or in a different court. I thought very hard about going elsewhere, and decided to stick with her for a variety of reasons. Although later, when the receiver was trying (ILLEGALLY) to prosecute an unlawful detainer action against me, and she consolidated it, I filed a disqualification motion against her, she was disqualified and severed the action. I filed a motion to transfer this action to the same court as the unlawful detainer on the grounds that she had no jurisdiction to sever the consolidated actions after disqualification and that she had no jurisdiction over my person after the disqualification. That is actually the document I am proudest of in all of this, in terms of legal reasoning. I rocked it, and my quasi-appellate counsel (a lawyer I had available when things were insanely sticky- I was sparing in turning to him) thought I rocked it as well. But I can’t even begin to go there to explain it all… your head will explode and so will mine. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 16, 2010, 7:40pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/45 "2010-05-16T19:40:00Z")
Best of luck. I don’t think you have a prayer (hope I am wrong, have been before about appeals) but all the best. And I really hope that there is a blue moon and an appeals court changes a finding of fact. ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [May 16, 2010, 7:42pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/46 "2010-05-16T19:42:36Z")
> [@Richard\_Parker](#): > > FWIW, the conventional wisdom among judges is precisely the opposite. Self-represented parties are exponentially more likely to appeal. In fact, I would guess that most judge’s reversals are on appeals from self-represented parties, because errors are frequently made in the interpretation of what a self-represented party is actually asking for, and because represented parties often do a better job of laying out the relevant law so that the judge makes the right decision. Perhaps, but I was getting beaten down pretty horrendously in the real world temrs of all this. AND ALSO… doesn’t what you’re saying apply more to pro per _plaintiffs_? And remember I was represented until the end of March. (Although I did a bunch of the work all along) I’ve had occasion to experience the real insanity of pro per plaintiffs. My lawyer friend, who actually seeks my assistance on some things, fancy that, shared the appellate brief of a nutjob pro per she was dealing with, and this guy was absolutely everything you’ve ever seen or heard about crazy pro pers and then some. It was jaw-dropping. And sad. And he was finally designated a vexatious litigant after SIXTEEN appeals!! So I guess you’re right… but he was generally the plaintiff. ---
**Author:** ![Merejane](https://avatars.discourse-cdn.com/v4/letter/m/a6a055/32.png) [@Merejane](https://boards.straightdope.com/u/Merejane)\ **Post date:** [May 16, 2010, 7:45pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/47 "2010-05-16T19:45:12Z")
Here are a couple problems I see that might prevent you from prevailing on your appeal: First, the judge made a finding under 17351 section (a) that there was a deadlock. I understand that you disagree with that finding, but it is a finding of fact. I don’t think the appeals court is likely to review that, or if they did, to overrule it. Second, I think the timing problem (the judge saying “too late”) is that you did not make the application (which should be in writing) under 17351 section (b)(2) prior to the judge’s entry of the order of dissolution. But I have to say, I am not really clear on the chronology here. Did you (or more precisely, your lawyer, acting on your behalf) submit such an application? Here is the relevant language: “(2) If the purchasing parties (A) elect to purchase the membership interests owned by the moving parties, (B) are unable to agree with the moving parties upon the fair market value of the membership interests, and © give bond with sufficient security to pay the estimated reasonable expenses, including attorneys’ fees, of the moving parties if the expenses are recoverable under paragraph (3), the court, _ **upon application of the purchasing parties** _, either in the pending action or in a proceeding initiated in the superior court of the proper county by the purchasing parties, shall stay the winding up and dissolution proceeding and shall proceed to ascertain and fix the fair market value of the membership interests owned by the moving parties.” (Emphasis added by me.) Edit: Now that I have posted this, I see there have been a number of new posts (starting with #41) which might answer my questions or render them moot. But I need to run out for a quick errand, and will not be able to read all these posts for a bit. Sorry, then, if my post has been rendered moot! ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [May 16, 2010, 7:46pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/48 "2010-05-16T19:46:38Z")
> [@AK84](#): > > Best of luck. I don’t think you have a prayer (hope I am wrong, have been before about appeals) but all the best. > > And I really hope that there is a blue moon and an appeals court changes a finding of fact. Me too. I filed a Motion to Make Factual Determinations on Appeal towards that very end. But I know how tough it is, which is why I began my memorandum thusly: > [@](#): > > Insufficiency of the evidence to support the trial court’s findings and/or the judgment arising therefrom is a notoriously difficult argument to successfully make, in light of the deference given to the fact finding function of the trial court. But the law recognizes that factual errors do occur, and provides this way for the Appellant to have the errors corrected. California Code of Civil Procedure, Section 909: And my accompanying declaration I started like this: > [@](#): > > As I am not a licensed member of the bar, I feel compelled to assure this Court that I have carefully studied the laws and rules of appellate review. I am acutely aware of the stringent limitations on any consideration of the evidence by this court, the built-in presumption of correctness in support of the judgment, and the rarity of the reviewing court making findings at all, much less findings contrary to those made by the trial court. I thoroughly understand that I have the burden of showing this court that there is a compelling need to make factual determinations different from those of the trial court, and that this court comes to any such consideration with a highly skeptical point of view. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 16, 2010, 7:48pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/49 "2010-05-16T19:48:06Z")
> [@Stoid](#): > > The law doesn’t have a requirement either way; all the cases are different. In some, they moved after judgment, others they cross-complained and asked for that relief, and in others they made a motion prior to judgment within the original action. Were you able to point to cases permitting the non-movant to seek purchase under 17531 after a dissolution judgment over the objection of the party seeking dissolution? > [@Stoid](#): > > Perhaps, but I was getting beaten down pretty horrendously in the real world temrs of all this. AND ALSO… doesn’t what you’re saying apply more to pro per _plaintiffs_? Well, the part about misinterpreting the relief the party is seeking usually would apply only to plaintiffs, but not in cases with counterclaims, etc. But the part about setting up the legal standards still applies. And I would say the conventional wisdom also extends to parties represented by crappy counsel, who are legion. ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [May 16, 2010, 8:04pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/50 "2010-05-16T20:04:15Z")
> [@Merejane](#): > > Here are a couple problems I see that might prevent you from prevailing on your appeal: > > First, the judge made a finding under 17351 section (a) that there was a deadlock. I understand that you disagree with that finding, but it is a finding of fact. I don’t think the appeals court is likely to review that, or if they did, to overrule it. It is appealed separately. If they dont’ change that, it doesn’t matter to the primary issue of whether she was entitled to deny me my right to the buyout. > [@](#): > > Edit: Now that I have posted this, I see there have been a number of new posts (starting with #41) which might answer my questions or render them moot. But I need to run out for a quick errand, and will not be able to read all these posts for a bit. Sorry, then, if my post has been rendered moot! I think the other posts answer the rest… ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [May 16, 2010, 8:17pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/51 "2010-05-16T20:17:43Z")
> [@Richard\_Parker](#): > > Were you able to point to cases permitting the non-movant to seek purchase under 17531 after a dissolution judgment over the objection of the party seeking dissolution? No, because no such cases exist. At least, not on the basis of timing. There are cases where the party seeking dissolution objected to the valuation of the shares, that’s the majority of the case law. There was also, very interestingly, a case where the defendant made their election before trial and judgment, the plaintiff withdrew the cause of action for dissolution, and then appealed the trial court permitting the election to buyout to continue to conclusion. The appellate court ruled that the buyout provision could not be employed where no dissolution action existed, which is key. It also shows how the whole thing could be manipulated to death if the election had to be made before the dissolution was decided. And in another case, there was some question of whether a genuine dissolution had legally begun or not, and the ruling: > [@](#): > > Before the provisions of section 2000 apply, however, an **actual** , not a possible, dissolution must be shown. Ovadia v. Abdullah, 24 Cal. App. 4th 1100, 1112 (1994) which I used in my brief. Along with: > [@](#): > > It may be observed in this connection that the rights and remedies provided by subdivision (E) of section 404 are still available to the individual defendants, upon the taking of proper steps therefor, since the provisions thereof do not limit the time within which the required steps may be taken. Merlino v. Fresno Macaroni Mfg. Co., 64 Cal. App. 2d 462, 465-466 (1944) > Reaffirmed in 1985: > Hence, the corporation is able to become a purchasing party by taking the necessary steps any time prior to the liquidation of the corporation, since there are no time restraints in section 2000. (See, e.g., Merlino v. Fresno Macaroni Mfg. Co. (1944) 64 Cal.App.2d 462, 465-466 [148 P.2d 884].) Ronald v. 4-C’s Elec. Packaging, 168 Cal. App. 3d 290, 303 (1985) And she just ignored them all…(these were in the brief AND my argument at the hearing) ---
**Author:** ![Elysian](https://avatars.discourse-cdn.com/v4/letter/e/c77e96/32.png) [@Elysian](https://boards.straightdope.com/u/Elysian)\ **Post date:** [May 16, 2010, 8:52pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/52 "2010-05-16T20:52:25Z")
> [@Merejane](#): > > Second, I think the timing problem (the judge saying “too late”) is that you did not make the application (which should be in writing) under 17351 section (b)(2) prior to the judge’s entry of the order of dissolution. But I have to say, I am not really clear on the chronology here. Did you (or more precisely, your lawyer, acting on your behalf) submit such an application? I’ve taken out all the highlighting and underlining and bolding of the transcripts and I read over Stoid’s posts again and I THINK that the application wasn’t made. And I THINK there is no controlling law on the subject (or at least Stoid says there is no directly applicable case law). It’s really difficult to say because we’re only getting what Stoid thinks is important and applicable. And with that, I’m going to give up making sense of the whole deal, and merely wish Stoid well. ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [May 16, 2010, 8:57pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/53 "2010-05-16T20:57:03Z")
> [@Elysian](#): > > I’ve taken out all the highlighting and underlining and bolding of the transcripts and I read over Stoid’s posts again and I THINK that the application wasn’t made. And I THINK there is no controlling law on the subject (or at least Stoid says there is no directly applicable case law). It’s really difficult to say because we’re only getting what Stoid thinks is important and applicable. Oy and vey.:rolleyes: ---
**Author:** ![Merejane](https://avatars.discourse-cdn.com/v4/letter/m/a6a055/32.png) [@Merejane](https://boards.straightdope.com/u/Merejane)\ **Post date:** [May 16, 2010, 9:28pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/54 "2010-05-16T21:28:58Z")
> [@Elysian](#): > > . . .I THINK that the application wasn’t made. Well, in post # 44 Stoid says, “I did not move to purchase his share until after the judgment, **although I could have before**.” (Emphasis added by me.) Stoid, why in the world did you wait? I think this could sink your appeal. I understand about the cases under 2000 that say there are no time limits, but if the facts of those cases were at all different from yours – if there were compelling reasons why the purchasing parties did not move before judgment – then those cases might not help you. Because when I read 17351, with its provision for staying the proceeding upon such application, it seems pretty clear that the statute contemplates that an application for a buyout will be made prior to the judgment of dissolution. I don’t think it’s impossible that the appeals court will rule in your favor, but I don’t think your appeal is the slam dunk that you seem to think it is. Another comment: you keep saying that your various motions were denied for procedural reasons, with the implication that those reasons are trivial. But cases are often decided on procedural grounds, and a decision that goes against you on a procedural point can be fully dispositive. ---
**Author:** ![Elysian](https://avatars.discourse-cdn.com/v4/letter/e/c77e96/32.png) [@Elysian](https://boards.straightdope.com/u/Elysian)\ **Post date:** [May 16, 2010, 9:41pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/55 "2010-05-16T21:41:07Z")
Yeah, I meant that the application wasn’t made before the judgment, sorry I left that out. ---
**Author:** ![MPB\_in\_Salt\_Lake](https://avatars.discourse-cdn.com/v4/letter/m/c0e974/32.png) [@MPB\_in\_Salt\_Lake](https://boards.straightdope.com/u/MPB_in_Salt_Lake)\ **Post date:** [May 16, 2010, 9:43pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/56 "2010-05-16T21:43:41Z")
Just a trivial and juvenile question about this case, which I have followed on and off (mostly off) for the past couple of years… Am I thinking of someone/something else or is the web business that is at the heart of this lawsuit indeed a porno site? (If I am mistaken, apologies in advance to Stoid.) ---
**Author:** ![BottledBlondJeanie](https://avatars.discourse-cdn.com/v4/letter/b/0ea827/32.png) [@BottledBlondJeanie](https://boards.straightdope.com/u/BottledBlondJeanie)\ **Post date:** [May 16, 2010, 10:35pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/57 "2010-05-16T22:35:38Z")
Absent a timely pre-judgment election and bond posting by Stoid, the court found the members deadlocked and ordered the LLC dissolved. I refuse to pull up Lexis, but Google pulled up a case discussing the need for pre-decree election and the deadlines of 17351. It’s mostly dicta, but still says that the election takes place before any decree. It certainly sounds like there is a pre-decree deadline in 17351, but Stoid says there isn’t one. Stoid, you realize that you accused the judge of being an idiot, Plaintiff’s counsel of being dumb, and the receiver of being a thief. Did everyone conspire against you? Are you the only one who is smart enough to correctly interpret the statute? Are you a model of clarity? I don’t believe for 1 second your brief and argument were clear and unemotional. ---
**Author:** ![BottledBlondJeanie](https://avatars.discourse-cdn.com/v4/letter/b/0ea827/32.png) [@BottledBlondJeanie](https://boards.straightdope.com/u/BottledBlondJeanie)\ **Post date:** [May 16, 2010, 11:07pm UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/58 "2010-05-16T23:07:18Z")
Sorry, I misstated, you accused Plaintiff’s of being evil and unethical, not dumb. ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [May 17, 2010, 1:24am UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/59 "2010-05-17T01:24:22Z")
> [@Merejane](#): > > Well, in post # 44 Stoid says, “I did not move to purchase his share until after the judgment, **although I could have before**.” (Emphasis added by me.) > > Stoid, why in the world did you wait? A lot of reasons, starting with money. But I was relying on my lawyer back then, and I knew virtually nothing. The way things went down prior to trial was a goddamn mess. Here’s a truth: both parties made exactly the same mistake - we listened to our lawyers against our own superior knowledge and understanding of who we are, how we think, what we care about. I knew that my ex would not back off unless he got a big unreasonable pile of money or the business. But I let my lawyer keep telling me that there was no way they would take it to trial. And in fact, at the 11th hour, they did reach out. But my ex demanded a certain sum, and that was that. On the other hand, my ex knows me just like I know him, and he knew I wouldn’t just roll over and let myself get dragged under the bus, because he relied on me to fight a number of battles when we were together. But he let his lawyer convince him that they would simply crush me, which involved letting his lawyer convince him to treat me like shit after trial, after he and I had already made tentative steps towards working out a way to move forward. But it was a terrible strategy that backed me into a corner where I literally, (especially if you know me like he does and know my life story, my deficits and my gifts) had absolutely no choice but to fight. The alternative was losing absolutely everything. My work, my home, my business, my income, my future. I was poised to pull up a shopping cart under a bridge. I had absolutely nothing whatsoever to lose by fighting. Which is something the judge also failed to understand. She ruled in his favor on everything, then repeatedly chided us over our failure to work things out over the next year. When in the end the receiver ended up with ALL the money, she wrote in one of her rulings that she told us this would happen, but we just didn’t listen. 
But yer onner.. do you not understand that in order for negotiation to happen, both parties have to have something to lose and something to gain? He had everything to lose and I had everything to gain, why the hell would he come off of anything at all? Of course, she thought he’d want to avoid the receiver taking everything, but it was made clear several times and ways that if it was between the mere possibility that I would get a nickel, and the receiver getting it all, he was ok with the receiver getting it all. And that’s what happened. > [@](#): > > I think this could sink your appeal. I understand about the cases under 2000 that say there are no time limits, but if the facts of those cases were at all different from yours – if there were compelling reasons why the purchasing parties did not move before judgment – then those cases might not help you. There wasn’t. There was nothing whatsoever. One thing I take very seriously is making sure I get all the information. I have never simply checked annotated codes and pulled a quote to make a point. I find something that seems useful, I read the case. If the case references other cases, I read the other cases. I always make sure I thoroughly understand exactly the context in which something is being said, because I don’t want to get the rug pulled out from under me. Which is to say I have read every single case related to dissolution buyouts in California multiple times each. There’s about 20 of them over 67 years. I know there is nothing in the facts of those cases that somehow made them special in electing after judgment. I have also read boatloads of commentary and treatises on the subject, ranging far outside California. This law isn’t unique, far from it. It’s based on the ABA Model Corporations Act, as are most such laws throughout the country. Each state does things a little differently, but buying out the dissenting/complaining shareholder/member/partner to avoid dissolving the corporation/partnership/LLC is incredibly standard stuff with enormous amounts of underlying analysis. I’ve been consuming it by the truckload for over two years. > [@](#): > > Because when I read 17351, with its provision for staying the proceeding upon such application, it seems pretty clear that the statute contemplates that an application for a buyout will be made prior to the judgment of dissolution. Okay, but review all this and tell me how reasonable or likely such a holding would be: •case law has found that no such limitations exist •the cases include many where the election was made after the dissolution judgment •The case I cited earlier finding an ACTUAL, not POSSIBLE dissolution is necessary in order for the code section to apply. Someone filing a lawsuit is a possible dissolution, not an actual one. It isn’t actual until after the judge decrees it. •Related to that, my reasoning in the hearing was that corporate dissolution occurs via election, voluntary or involuntary, either way dissolution has begun. Judicial decree of dissolution is functionally equivalent to election: both are events which begin dissolution •California Code of Civil Procedure Section 1858: " In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein,\*\* not to insert what has been omitted, or to omit what has been inserted;\*\* and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." •Reese v. Darden, 106 Cal. App. 2d 699 (Cal. App. 1951) “Under such conditions it is mandatory for the court to issue a stay of proceedings and to proceed to ascertain and fix the value of the shares of stock to be purchased by defendant. ( Merlino v. Fresno Macaroni Mfg. Co., 64 Ca1.App.2d 462, 463 et seq. [148 P.2d 884].) In addition, defendant filed the bond required by the court. The other condition prescribed by the order was erroneous because beyond the power of the court **whose jurisdiction was limited by the cited sections of the Corporations Code**.” •Vallerga v. Department of Alcoholic Beverage Control, 53 Cal. 2d 313 (Cal. 1959) "This we are not permitted to do because it would amount to an invasion of a field committed in its entirety to the legislative branch of government. (2) In People v. One 1940 Ford V8 Coupe, 36 Ca1. 2d 471 [224 P.2d 677], it is held at page 475: "In construing the statutory provisions\*\* a court is not authorized to insert qualifying provisions not included and may not rewrite the statute to conform to an assumed intention which does not appear from its language. \*\*The court is limited to the intention expressed. Now, just for the record, corporations code 2000: > [@](#): > > 1. (a) Subject to any contrary provision in the articles, in any > suit for involuntary dissolution, or in any proceeding for voluntary > dissolution initiated by the vote of shareholders representing only > 50 percent of the voting power, the corporation or, if it does not > elect to purchase, the holders of 50 percent or more of the voting > power of the corporation (the “purchasing parties”) may avoid the > dissolution of the corporation and the appointment of any receiver by > purchasing for cash the shares owned by the plaintiffs or by the > shareholders so initiating the proceeding (the “moving parties”) at > their fair value. The fair value shall be determined on the basis of > the liquidation value as of the valuation date but taking into > account the possibility, if any, of sale of the entire business as a > going concern in a liquidation. In fixing the value, the amount of > any damages resulting if the initiation of the dissolution is a > breach by any moving party or parties of an agreement with the > purchasing party or parties may be deducted from the amount payable > to such moving party or parties, unless the ground for dissolution is > that specified in paragraph (4) of subdivision (b) of Section 1800. > The election of the corporation to purchase may be made by the > approval of the outstanding shares (Section 152) excluding shares > held by the moving parties. > > (b) If the purchasing parties (1) elect to purchase the shares > owned by the moving parties, and (2) are unable to agree with the > moving parties upon the fair value of such shares, and (3) give bond > with sufficient security to pay the estimated reasonable expenses > (including attorneys’ fees) of the moving parties if such expenses > are recoverable under subdivision (c), the court upon application of > the purchasing parties, either in the pending action or in a > proceeding initiated in the superior court of the proper county by > the purchasing parties in the case of a voluntary election to wind up > and dissolve, shall stay the winding up and dissolution proceeding > and shall proceed to ascertain and fix the fair value of the shares > owned by the moving parties. > > (c) The court shall appoint three disinterested appraisers to > appraise the fair value of the shares owned by the moving parties, > and shall make an order referring the matter to the appraisers so > appointed for the purpose of ascertaining such value. The order > shall prescribe the time and manner of producing evidence, if > evidence is required. The award of the appraisers or of a majority > of them, when confirmed by the court, shall be final and conclusive > upon all parties. The court shall enter a decree which shall provide > in the alternative for winding up and dissolution of the corporation > unless payment is made for the shares within the time specified by > the decree. If the purchasing parties do not make payment for the > shares within the time specified, judgment shall be entered against > them and the surety or sureties on the bond for the amount of the > expenses (including attorneys’ fees) of the moving parties. Any > shareholder aggrieved by the action of the court may appeal > therefrom. > > (d) If the purchasing parties desire to prevent the winding up and > dissolution, they shall pay to the moving parties the value of their > shares ascertained and decreed within the time specified pursuant to > this section, or, in case of an appeal, as fixed on appeal. On > receiving such payment or the tender thereof, the moving parties > shall transfer their shares to the purchasing parties. > [@](#): > > I don’t think it’s impossible that the appeals court will rule in your favor, but I don’t think your appeal is the slam dunk that you seem to think it is. > > Another comment: you keep saying that your various motions were denied for procedural reasons, with the implication that those reasons are trivial. But cases are often decided on procedural grounds, and a decision that goes against you on a procedural point can be fully dispositive. All true, except that the motions aren’t the judgment. The ruling on those motions is not what I am appealing. I’m appealing her judgment, and her ruling on my action regarding the corp provision. The procedural reasons were all related to procedures having to do with motions to vacate, new trial, and reconsider, nothing whatsoever to do with the buyout provision itself. I appreciate your discussing this with me, by the way. I like to have the possibilities presented. I actually enjoy the law, it just sucks I’ve had to learn it under these circumstances. ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [May 17, 2010, 1:25am UTC](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510/60 "2010-05-17T01:25:24Z")
> [@MPB\_in\_Salt\_Lake](#): > > Just a trivial and juvenile question about this case, which I have followed on and off (mostly off) for the past couple of years… > > Am I thinking of someone/something else or is the web business that is at the heart of this lawsuit indeed a porno site? > > (If I am mistaken, apologies in advance to Stoid.) Yep. Although we prefer to refer to it as vintage erotica… A Century of Smut. [Previous page](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510.md?page=2) [Next page](https://boards.straightdope.com/t/i-argued-in-front-of-the-court-of-appeal-today/539510.md?page=4)