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?
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.
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.
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.
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.
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.
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.
Ex says, yeah on price but hey, you said I could buy, too.
Papers filed arguing.
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.
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.
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.
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.
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.
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!
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:
And my accompanying declaration I started like this:
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?
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.
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.
I think the other posts answer the rest…
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:
which I used in my brief. Along with:
And she just ignored them all…(these were in the brief AND my argument at the hearing)
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.
Oy and vey.:rolleyes:
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.
Yeah, I meant that the application wasn’t made before the judgment, sorry I left that out.
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.)
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.
Sorry, I misstated, you accused Plaintiff’s of being evil and unethical, not dumb.
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.
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.
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:
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.
Yep. Although we prefer to refer to it as vintage erotica… A Century of Smut.