I argued in front of the Court of Appeal today.

Miscellaneous and Personal Stuff I Must Share
181

What an amazing story this is.

But I have a question that is not necessarily for Stoid. I am curious.

The question is about the loss in value of an asset over time between the original filing and the final judgement. I am thinking about the housing crash. The value of real estate declined for reasons separate from the original dispute while all this was taking place.

Keeping it simple and disregarding the value of the internet business, if a judgement is found in Stoid’s favor, is the value of the house the original value of around $700,000 or the current value of about $300,000?

Would the losing party have to assume the loss in value that is due to unrelated market conditions? Is the value of disputed property frozen at the begining of the lawsuit?

Who assumes the loss in real value that has occurred?

182
  1. He left, he didn’t want to work the business anymore, he wanted to go find what would make him happy… for years he told me I didn’t believe in him because I felt we’d be smarter to take care of what we had than think it could be magically recreated any time we wanted. He said he wanted out, he said he’d sell both the business and the house to me.

I offered my ex double the total appraised value months before trial. not double his half, double all. So if it was worth $100, I offered him $200, that was $150 more than his half was worth. He demanded $400. By the time we got to trial, I figured he’d burned up most of his equity putting both of us through this shit for his greed.

  1. I knew any money that was paid to the company I would never see, he’d get his half AND mine. If not for the receiver taking all of it and making the issue moot, that’s what would have happened. And you can probably imagine why I wouldn’t be ok with that, particularly since I paid too much to begin with… after the devastating litigation.

  2. There was no deadlock. He was a spoiled, entitled child who ignored my attempts to engage him in any kind of negotiation, basically disappeared for 8 months and then sued me.

But let’s say your story is true. (It was his lawyer’s story, after all) It doesn’t matter. This kind of thing has been looked at from a dozen angles, and the legislature came up with their solution: 17351, 2000, and the partnership version. It wouldn’t even matter if I’d been found guilty of fraud, mismanagement, peristent unfairness… the law says: you want out? Fine, understandable. You get your cash equity.

And here’s the thing. the way the LAW is written, there’s nothing unfair about it. You don’t agree on price? Fine. 3 appraisers. You don’t like the outcome, well, that’s the ONLY discretion the judge has: she has discretion to discard all the appraisals and come up with one she likes better and doesn’t have to justify to anyone!

So why didn’t his lawyer prosecute the case honestly and follow the law and focus his energy there? Because that’s not exactly what his client wanted? So? Do you think it’s ok to bend the law to your will if you don’t like the way the law is written? You think it’s ok to commit fraud on the court to get what you want? If those are your tactics, you zeroed out any claim you had on fairness.

Zealousy advocacy is great. But it has to be balanced with integrity and respect for the law itself.

183

Stoid,
Once again I would like to reinteraten my hopes that you are successful and my sincere desire that what I am about to say does not come to pass.

I really hope that the above appeal draft that you have supplied is just that a draft. I can’t see firstly that you have listed any grounds of appeal other then “they did bad by me” and “I wuz robbed”. That ain’t gonna cut it.

For an appeal to succeed you need to show the Appellate Court that the lower forum erred in law and or erred in its application of law to the facts, or that the actiions lacked procedural propriety, or that the court failed to take into account something or the other. Indeed “erred in law” is something you see stated many times in Appeals. I have not seen a list of grounds of appeal which can be considered.

You have written a law lecture, the last thing Appellate Judges (or any judge for that matter) wants is a lecture on the law, especially when that lecture does not contain any ground on which the decision at first instance can be attacked.
Again, I wish you luck and success, but from what I can see, you are not getting any relief in this matter.

184

I did read your writ petition, that’s how I learned about that argument. I’m not some encyclopedia of California corporations law. I didn’t read Cotton or Dickson. Can you give me a paragraph-long account of their holdings (i.e., “under law L, with facts F, results R”) and how it applies to your case? Just a paragraph please!

My point is that if you focused on that, in your appeal, rather than your wide-ranging, soap operatic narrative. I think you’d be in a stronger position.

If it were shown to me that there is good authority that (1) LLC buyout procedure is meant to operate like the corporation buyout procedure, and (2) the corporation buyout procedure could be invoked after a dissolution order for deadlock but before liquidation has substantially commenced, I’d be prepared to agree that the judge in your case erred. It’s not all that far-fetched.

All the rest of that tale of woe you included is just a distraction.

…Now, what remedy you can get for that legally (let alone practically) is another kettle of fish.

185

She ruled on that. I had a right to go to trial, and it’s not my fault if the market changes during that time. She had to rule, because that’s what his lawyer tried to argue, that I owed him. Of course, if the house had gone up in value (it did, actually, it was up from the time of filing to trial, it crashed right after trial) do you think his lawyer would have argued that his client’s share should be reduced to what it would have been at the beginning?

I really hate dishonesty, practical or intellectual.

By the way, the ex’s greed played a part here, too. We agreed on the value. We got an appraisal that was less than the value we agreed on. I calculated what a sale for that price would net after debts were paid and costs, and that’s the number I was ready to pay.

He said no, not fair. He wanted more, because he believed it wasn’t fair to consider costs that weren’t being paid.

In other words, if you offered us $650,000 for the house, he would have received $26,000 after all was said and done.

But he wanted me to pay him $40,000.

I understand the reasoning, I do. But it’s wrong. For a variety of very practical reasons that are dry and boring. But common sense will tell you it’s wrong, too. Particularly since his belief that it was right was formulated around a conviction that what goes up will go up forever, and I’d be a millionaire on this house someday. Like I said, a child.

I ultimately found a California case that spelled out that his thinking was wrong. I hope it will be persuasive to the court, since my defense to his action was the waiver he created by granting me the right of first refusal, and it was only because of this disagreement that he refused to sell to me. (Which is why his lawyer tried sooooooo hard to create a belief that we disagreed on the value of the house and the fiction that his client wanted me to sell. He knew the truth would be a really hard sell. He got his client to sign a declaration under penalty of perjury that said I wasn’t willing to value the house at even $600,000. Twice, the second time after I’d submitted documentary evidence disproving the accusation. Exactly when does the whole “penalty” of perjury happen, anyway?)

By the way, how would you treat the fact that the ex stopped paying anything towards the house or other debts or expenses in late 2005? Would that factor in anywhere for you?

Did for the court. She decided I owed him half of what the company paid me…essentially the half I used to cover his mortgage without a peep of protest from him. I also owed him rent.

So his half was what… $45,000? I paid that.
The judgment says I owe him another $50,000 on top of that for half my salary, and another $26,000 in rent.
(But she did deny him his demand for, on top of that, ALL the money i had paid towards the mortgage, as well as the difference in value between late 2008 and 2006. The total was half a million for everything)

Maybe I am crazy to appeal. I think anyone given a judgment like that would be crazy not to.

186

First, I give my thanks for a semi-cogent post - I can actually understand what you are saying through most of it. So, kudos :slight_smile:

Second, like Kimmy, I can entertain the notion that the judge effed up. They do. Alot. I don’t think anyone here is raising some kind lawyer version of a “blue wall” and just willy-nilly agreeing with the judge because she’s a member of the legal profession, so are we, and so we protect each other from outsiders. It’s just that your posting is incredibly difficult to follow and from what little people have been able to comprehend about it it seems like many procedural deadlines were missed, you are possibly (in light of the facts) mis-reading the statute, and you are trying to make a tenuous analogy to the Law of Corporations which is, typically, far more complex and nuanced (as it has to be) than that of an unincorporated business entity such as an LLC. It’s not some bias that pro se people are just full of shit and don’t know what they’re talking about, it’s more (as has been mentioned above) that since you can’t put together very terse explanations for what happened your chances of success are close to nil on appeal.

I do think it helps you (but very slightly) that your opponent didn’t brief and didn’t deliver oral argument.

Do let us know how this turns out. If you would be so daring, I would encourage you to post, verbatim, the Appellate Court’s ruling/opinion on the issue - redacted as you see fit.

187

In practical effect, that’s exactly what he did. His actions led to the complete and total cessation of all income, overnight. No lie.

That’s the story they tell. If only it were true.

Then you haven’t met mine! The saga of the receiver is, very literally, a story unto itself. As vile as the lawyer was, as maddening as the Red Queen was…the receiver lifted the horror of this thing to whole new previously unimaginable level and is in fact the direct cause of the greatest losses. And the greatest satisfaction I can possibly get out of this if I win reversal and the disposition I’ve requested, is a big fat check for every last penny. I only wish I could be there to watch him scream and cry while he writes it. Not only because he really doesn’t want to give up that kind of score, but because this case shifted from being about my ex and me and became and struggle between the receiver and me, and it will drive him insane to lose so decisively and tangibly.

But that’s a huge story. Someday. Suffice it to say that receivers, or at least my receiver, had two concerns: money and control. And if acquiring as much of both as he possibly could happened to involve lying to the court and ignoring the law, so be it.

188

Thanks, and I’m not sure what you mean. I posted an abridged and redacted version of the writ petition, which was focused exclusively on the LLC issue, and the introduction to the appeal. The introduction was a choice I made after reading a few different practice guides and since my appeal covers so many issues, I felt it was important to give them the basic outline of where we were headed before we went there.

The grounds for appeal were abuse of discretion, if you are just considering her actual judgment (or perhaps even…it’s void on its face, seeing as how it’s impossible to understand or act upon and the orders in relation to the LLC’s disposition cancel each other out even if they made sense to begin with. Anyone gonna take that on, by the way? No? You sure? I’ve been asking for someone to figure out how the judgment itself can be affirmed since Post 17, I think… post 33, 88, and about four others, and no one has yet even mentioned that the judgment exists, only her ruling on a motion following judgment. Hm. )

If you want to include her ruling on my motion, then the grounds are that she erred in interpreting the statute as having a time limit and using that as an excuse to deny my right to stop the dissolution via buyout, leading to devastating consequences. That’s not clear to you? Seriously and truly? Even with the cuts, I think it’s pretty clear.

Check.

Check.

[/QUOTE]

189

Can you name one? The only one the court ever thought I missed was the LLC one. Which I missed, if I missed it, because she said we weren’t going to honor the law. How in the world could that be my screwup?

The in-between motions weren’t denied for deadlines, and it wouldn’t matter. I’m not appealing her ruling on those motions. The case is the same with or without them, they don’t change her judgment.

Which “fact” leads to the possibility that I’m misreading the statute? Seriously. The fact of her ruling? Care to weigh in on her judgment? The one no one acknowledges? The one that didn’t exist at the time my lawyer said I wanted to act under the law? Care to take a stab at that? it’s a wide open field…
Or maybe it’s the fact that corporations law has never made any issue at all of timing. Except, of course…

Both laws (17351 and 2000) are posted in this thread in their entirely, as well as case law on 17351 in which the reviewing court went straight to 2000 for the answers and repeatedly brought up case after corporate case to see how to interpret the law. Its the one in the biggest, reddest, most obnoxious font. In light of that decision, what is your basis for using the word “tenuous”. Is that what you would say to the justices of the court in that case? Is that how you would characterize that case? Seriously, do you detect even the slightest hesitation on the part of the court to consider decisions on 2000 and its predecessor statues the authority for decisions on 17351? Really? Or are you just amusing yourself?

And my favorite for people who think that there’s a real chance of differences:

“Gee, we think it’s weird that corp decisions have gone like that…but hey, if it’s good enough for corps, it’s good enough for LLCs.”

I have to respectfully disagree with you. But we have to leave it there, because engaging in that debate, as lawyer and self-rep, is insane.

I think so, too. Particularly in light of the four requests for extensions.

Better still was the lack of response to the motion for factual findings on appeal. He had 15 days and I even directly referenced his anticipated response. Nuthin. And that went straight to the money judgment, so silence on that was very telling, as well as the fact that such a motion is way easier to reply to, technically, than a brief.

Well, even if it isn’t published it’s public if you have a decent lexis account and two brain cells to rub together to figure it out. But I will still post it redacted… let the curious do the work if they’re that interested!

190

This paragraph was the one that broke the camel’s back for me. Please, please, seek some kind of help.

191

For the record, I will respectfully, happily and seriously consider any and every opinion offered to me in good faith and with specificity. Blanket condemnations that wave me and my words away with unsupported generalization are bullshit that don’t deserve a reply. For the record.

Oh, and so is persistently and flagrantly ignoring me jumping up and down on the words of the judgment itself, the fact that it was 3 months after the verdict, and the fact that my lawyer specifcally told the judge it was my intention to act under the law before any judgment was ever even hinted at.

And any and all continued “Tut tut”-ing and condescending crap about how I just don’t get it cuz it’s way too deep that accompanies such flagrant disregard for the real facts and real issues is proof positive that you are just here to give me a hard time for some weird ego problems of your own.

But don’t let that stop you, because if it’s the best a whole passel of lawyers can do to convince me that my appeal is hopeless, I think I’m in great shape.

Carry on!

192

Nah. I’m doing pretty well here. But your concern is noted.

By the way, what part did you play in my case again? I assume you must at least work for one of the lawyers or something, right?

Well, say hi next time you see me.

193

For my part, Stoid I readily admit that I have nothing more than ancient memories of book larnin’ for civil law experience, and so I canot claim a particularly deep understanding of the merits.

But I do have a fair background in appellate work, at least on the criminal side, and in that capacity I have seen a fair number of appellate briefs.

And it’s fair to say that what you have shared is not a great example of the genre.

I hinted at this question before; let me ask it again: why do you imagine that every single lawyer in this thread has had reservations about your final product? Seriously – we’re not some monolithic force; I’ve had bitter disagreements with some of the luminaries above, and they with me. And I’ll echo what Rumor Watkins assures you: there’s no legal fraternity in play here, closing ranks against the outsider. I’ve seen plenty of judges make errors, and, indeed, every appeal I ever did argued in some wise that the trial judge made an error or three.

I don’t imagine there’s a litigator of more than a week’s experience that won’t agree judges can eff up bigtime.

So… why do you imagine that this unanimity of opinion exists about your efforts here?

194

Just one point on this statement: I don’t think your lawyer specifically telling the judge of your intention has any legal significance at all. That is, if there is a notice requirement of some kind, or a motion requirement of some kind, this doesn’t meet it.

195

See my post to Rumor, as well as the entire Dickson case posted above. The cooton case was just one reference.

[quote]

[/quote My point is that if you focused on that, in your appeal, rather than your wide-ranging, soap operatic narrative. I think you’d be in a stronger position. [/QUOTE]

really? You read it? Or you refer to the writ? And you think it’s soap opera? Well, too each his own.

I confess I am tempted to express this in far less charitable terms, but Kimmy, I find I do not really embrace the idea that this statement is a genuine expression of your true feelings. Because I have shown it to you. You just keep saying “Where? Huh? I don’t see it. Please show it to me again!”

Because the answer regarding buyout is in the post you are replying to and quote right here.

Now, if for some reason you think it makes a fool of me that I continue to reply to you in spite of the way you are behaving, you are welcome to that opinion, and if you are finding some merriment in it, that’s fine as well. I jsut want you to know that I don’t feel foolish, just a little puzzled at the ways some people entertain themselves, so if that was also your goal, I am afraid I will have to disappoint you there.

196

I don’t think it is either. But I know it’s perfectly respectable for someone doing it for the first time in their lives with no training, and I know it’s completely serviceable for my purposes.

I’ve never claimed that I am the best, better, or even as good. It’s not a competition. I’m getting the job done, which is all I need to do, and I’m not making fatal errors.

A few reasons, but most of it boils down to a predisposition out the gate, if I was a completely unknown quantity, which got ratcheted up last year in the advice/info debate, and let’s never forget that completely outside any considerations of the law, there’s a good number of folks around here who just find me grating under any circumstances and look forward to any perceived opportunity to smack me down.

Then there’s the fact that this is, after all a message board, which means about a dozen differnt things in this context and some other stuff as well, but this is a relatively friendly and civilized conversation, all things considered, and I would like to keep it that way.

And if I was completely without support in the real world, I’d certainly be questioning myself a lot more based on your reactions. But since both of the lawyers in my case, as well as three others that have been in on big chunks of what’s happened and my work have all been extremely supportive and have a very different opinion, and have in two cases put their name on a whole lot of my work… well, who am I supposed to think has a real grasp of the situation, real humans in my real life who have really been closely connected and involved, or a bunch of people on a message board, at least half of whom dont’ like me to begin with?

So no, I’m not laying awake nights.

But I’ll be honest (cuz I don’t know any other way to be…which has been a problem in this situation, to my everlasting frustration): while my prevailing on this is all about the effect on my real life… if I do I will take enormous pleasure in sharing the news, of course.

And in counting the number of people who will find some way to take it from me by saying it was an accident that had little to do with my own efforts. In fact, didn’t you make that prediction, Bricker?

197

Hi, Stoid. I just saw this thread and haven’t gone through the legal back and forth, but I just wanted to wish you best of luck on the appeal.

198

Not that I recall.

And although you may not buy it: I do wish you the best. It was incredibly brave to dive headfirst into an endeavor like this. I hope you get what you’re looking for; on effort alone, you deserve some good news.

199

One more thing on the power of unanimity opinion: I don’t think it has any. I am completely unmoved and unimpressed by an argument on any subject I can think of that boils down to: “A bunch of people are saying so, therefore it is right”. People are sheep. People want to be liked, they want approval, they like to be part of gang, they like to feel better than other people… for all these reasons people will agree with things publicly that they don’t in their hearts believe is true at all.

For all these reasons people will discard what they believe is true in their hearts and adopt things that they aren’t really comfortable with at all.

But I was raised by two free-thinking people who had spent their lives, each in their own way, bucking the system, the society, and rejecting completely the idea that value is found in numbers for their own sake. I was raised to believe that one must discover for onself if a thing is true or not, and to stand up for what I believe is truly right. Not to blindly cling to ignorance or my own cherished opinions formed of nothing but stubborness and desire, but to seek out the facts and the truth and if after doing so I find that my opinions or beliefs don’t necessarily conform to the majority, not to fear it. Because in and of itself, it means nothing.

I’ve lived for 52 years on this earth next week with that fundamental grounding, and it has served me very well.

To thine ownself be true.

On the other hand, I don’t go through life as an island of quirky opinions and beliefs that are rejected by everyone and think I’m stylin’, either. There are many people whose opinions I value and respect, because I know them to be intelligent, thoughtful, wise and well-rounded people. If I fail to win the support and respect of such people in my actions and deeds, then I definitely question myself. And thus I learn and grow.

But, opinions about my writing aside, because of course that’s opinion, I have not been very impressed with the legal reasoning around here, all due respect. And I’ve listened, believe me. You guys really had me going at one point on the subject of the LLC buyout… I was halfway to believing that I really had misread the cases all this time. It seemed impossible, but you never know. Which led to the Reese v. Darden post tearing it down sentence by sentence. (Which actually turned out to be a fantastic exercise and ultimately enormously comforting, since it nailed down that I was right.) And this is the same thing that happened last year… everyone kept telling me that I was just wrong, and the combined weight of Doper lawyers was supposed to convince me. Well, I have a very good brain and I love language, and no one was making any kind of solid argument that advice and information really are the same, they just kept telling me they were.

Then someone finally posted some cases that were intended to prove to me conclusively that answering a question about pancakes and bunnies could reasonably lead to devastating litigation. Oh, ok. A cite? An authority? very well then… so I read the cases, and nothing even close to that was in them.

I’m not closed minded at all. I want all the information I can get, please. If I’ve got it wrong, for god’s sake show me! I need to know!

But just repeating to me that it’s plainly X when it plainly is anything but and ignoring all the authority I keep offering that proves exactly the reverse just makes your opinion less and less valuable, no matter how multiplied it may be, I’m sorry, and it makes you look like you have an agenda, which also degrades the quality of your opinion.

But, I say sincerely, I don’t mind. I prefer the challenge of adversity to simple “you go, girl!”, although I like supportive comments, of course. But pure support doesnt’ teach you anything at all. I learned that in school when I finally got an English teacher than didnt’ fall all over themselves loving me to death and actually failed my first paper! THAT teacher taught me something. The others just made me feel good.

200

Okay, I’ll buy that for a dollar.

But if you think your opinion should count for something, then you have to stop dodging.

Post 30 is the exchange during the verdict. Most of it is Ex’s lawyer and the judge. My lawyer manages to get a few words in, and tries to get the judge to see that her original understanding of the law, that she said out loud, where she talked about me buying him out, was correct, and that we should “prevail” on that issue.

Not only does the judge not answer him, she asks E.Lawyer to give her a little more, then says: ok, forget it, we’ll go with what the plaintiff is asking for. Clearly rejecting the idea that I really do have that right, embracing the idea that she actually has discretion to do something different, and announcing that the business is being sold to the highest bidder instead.

No one, at any time, even suggests that I am too late and should have made my motion before judgment. Not even close.

Then, the judgment in March with the gooey meaningless jumble of language. (post 33, 88, a buchof others. page search “her membership”)

Youre’ the lawyer. What were you “supposed” to do that you can legitimately be held accountable for failing to do that makes denial of my buyout right affirmable?

Explain your answer, it’s 50% of your grade.