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OpinionSummariesCase details
Patrick v. Alacer Corp.
Plaintiff alleged she and Jay built Alacer together, both before and during their marriage, and that she had…
Baeyenss v. Westside Nutrition, LLC
(See In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1513, fn. 2.) The trial court primarily relied on…
73 Citing Cases
Full title:YMELDA T. PATRICK, Plaintiff and Appellant, v. ALACER CORPORATION…
Court:Court of Appeal of California, Fourth District, Division Three
Date published: Oct 22, 2008
Copy Citations
167 Cal.App.4th 995 (Cal. Ct. App. 2008)
84 Cal. Rptr. 3d 642
Court of Appeal of California, Fourth District, Division Three
stating that while a nominal defendant corporation generally may not defend a derivative action filed on its behalf, it "may assert defenses contesting the plaintiff's right or decision to bring suit, such as asserting the shareholder plaintiffs lack of standing ...."
Summary of this case from Cotter v. Kane
See 8 Summaries
No. G037261.
October 22, 2008.
Appeal from the Superior Court of Orange County, No. 03CC14826, David A. Thompson, Judge.
Hess-Verdon Associates, Jillyn Hess-Verdon, Edward L. Laird and Michael E. Reznick for Plaintiff and Appellant.
Anderholt Turner, J. John Anderholt; Allan B. Weiss Associates and Allen L. Thomas for Defendant and Respondent.
IKOLA, J.
Plaintiff Ymelda T. Patrick appeals from a judgment of dismissal entered after the court sustained defendant Alacer Corporation's (Alacer) demurrer to her third amended complaint without leave to amend. Plaintiff asserted shareholder derivative and direct causes of action against Alacer and three individuals who sit on its board of directors and serve as trustees of the trust that is its sole record shareholder.
We affirm in part and reverse in part the judgment entered for these individuals in this derivative action (and address various probate petitions consolidated therewith) in Patrick v. Turner (Oct. 22, 2008, G037607) (nonpub. opn.).
The court erred in sustaining Alacer's demurrer to the derivative causes of action Alacer is the real party in interest, and only a nominal defendant. It cannot demur to a derivative complaint filed on its behalf, except on limited grounds such as the shareholder plaintiff's lack of standing. And here, plaintiff has standing to assert the derivative claims. She alleges a community property interest in Alacer stock, which, if true, renders her a beneficial shareholder of Alacer.
But the court correctly sustained the demurrer to plaintiff's direct cause of action for fraud. Plaintiff alleged she voted for certain Alacer board members in reliance on their misrepresentations. But plaintiff fails to allege causation, as her vote was unnecessary to the directors' election. We affirm in part, reverse in part, and remand.
The following facts are alleged or implied by the third amended complaint (complaint). ( Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 [ 6 Cal.Rptr.3d 457, 79 P.3d 569] [on demurrer, "courts must assume the truth of the complaint's properly pleaded or implied factual allegations"].)
The Director Defendants Allegedly Take Control of Alacer and Loot It
Plaintiff and her late husband, James Patrick, founded Alacer in the mid-1970's to manufacture vitamin supplements. Together, they created the vitamin supplement formulas, served as corporate officers, and financially supported Alacer during their marriage. Alacer flourished under their care, partly due to the popularity of its Emergen-C vitamin C supplement, attaining a market value of $70 million or more. Plaintiff alleges the increased value of Alacer, over a fair return on her husband's original investment, is community property.
Plaintiff's husband, the sole record owner of Alacer stock, transferred all of the shares to the James W. Patrick Revocable Trust (the Trust) in 2000. The Trust is Alacer's only shareholder of record. The Trust documents direct the trustees to distribute up to 46 percent of the Trust's Alacer stock to plaintiff upon her husband's death to satisfy any community property interest she may have in Alacer.
The Trust's trustees held a meeting in February 2003, while plaintiff's 90-year-old husband was deathly ill. There were five trustees at that time: plaintiff, defendant Ronald J. Patrick, defendant James Turner, defendant Thaddeus Smith (the Director defendants) and Vern Peck. The Director defendants sought to place themselves on Alacer's board of directors. The Director defendants asked plaintiff to support their plan. They represented to plaintiff that they would only serve as interim directors, until they retained new management. They further represented to plaintiff they would accept compensation of only $1,000 per meeting. In reliance on the Director defendants' representations, plaintiff voted to elect them to Alacer's board. The new board immediately elected themselves as corporate officers. Plaintiff, who had already been serving as a corporate officer, was named vice-president of sales and marketing.
Plaintiff's husband died three weeks later. The Trust continued to hold all of the Alacer shares, without distributing any to plaintiff.
A month later, the Director defendants called a board meeting. They ousted plaintiff from the meeting and voted to remove all of Alacer's officers, including plaintiff. The Director defendants then reappointed themselves as corporate officers.
After firing plaintiff as an Alacer vice-president, the Director defendants terminated her salary and health insurance. They seized her furniture and personal possessions from her office. They cancelled her corporate credit cards and confiscated her company car. They also attempted to remove plaintiff from Alacer's board.
Plaintiff alleges that once the Director defendants assumed control of Alacer, they began looting it. They stole money from it, took bloated salaries, sold corporate assets below market value for personal gain, failed to record transactions properly or at all, added friends and family to the company payroll and forgave loans they owed to Alacer, rejected bona fide arm's-length offers to buy Alacer in favor of pursuing secret sale discussions, and disclosed Alacer's trade secrets to an entity owned by defendant Patrick. The board allegedly ignored plaintiff's repeated demands to investigate the misconduct and pursue litigation.
Plaintiff's Complaint and Alacer's Demurrer
Plaintiff alleges six causes of action in the complaint. The first cause of action is styled, "CONSPIRACY TO DEFRAUD AGAINST ALL DEFENDANTS," and is labeled a "DIRECT CLAIM." Plaintiff alleges she approved reconstituting the board due to Director defendants' misrepresentations about their intent to serve on an interim basis and accept a $1,000 per meeting salary.
The second cause of action is styled, "BREACH OF FIDUCIARY DUTIES AGAINST ALL DEFENDANTS," and is labeled "DERIVATIVE CLAIMS." Plaintiff alleges the Director defendants breached their fiduciary duties as Alacer directors by mismanaging and basically looting Alacer.
The third cause of action is styled, "IMPOSITION OF A CONSTRUCTIVE TRUST FOR EMBEZZLEMENT AGAINST ALL DEFENDANTS." Plaintiff seeks to impose a constructive trust in favor of Alacer on any revenue generated by the improper sale of corporate assets, as well as a reasonable rate of return on Alacer assets improperly used by the Director defendants.
The fourth cause of action is styled, "INJUNCTIVE RELIEF AGAINST ALL DEFENDANTS." Plaintiff seeks to enjoin defendants and their agents from (a) approving salary increases for Alacer's officers, directors, or employees without court approval, (b) selling corporate assets outside the ordinary course of business without plaintiff's consent, (c) hiring additional officers or consultants, (d) denying plaintiff access to corporate books and records, (e) using corporate funds to pay the Director defendants' attorney fees, (f) "looting the corporation," (g) ignoring bona fide offers to buy Alacer, and (h) taking any action impairing Alacer's property and business.
The fifth cause of action is styled, "UNFAIR BUSINESS PRACTICES (UNFAIR COMPETITION)," and is asserted against the Director defendants. Plaintiff alleges the Director defendants sold Alacer assets below cost, offered improper discounts by forgiving loans, and misappropriated Alacer trade secrets. Plaintiff seeks disgorgement of funds they wrongfully acquired.
The sixth cause of action is styled, "DECLARATORY RELIEF AGAINST ALL DEFENDANTS." Plaintiff seeks a declaration that she has a community property interest in Alacer.
Alacer demurred to the complaint. In an overarching contention, Alacer claimed plaintiff lacked standing to assert shareholder derivative causes of action. It also challenged the specific causes of action. It contended the conspiracy to defraud cause of action failed because plaintiff failed to allege causation or damages and had not clarified whether it was a direct or derivative claim. It also claimed it could not be held liable for conspiracy due to the agent's immunity rule. Alacer contended the constructive trust cause of action failed because it is a claim for relief, not a cause of action; moreover, plaintiff did not specifically identify any wrongfully obtained funds in Alacer's possession. It claimed the injunctive relief cause of action failed because it too is a claim for relief; also, courts cannot enjoin corporate officers from lawfully exercising their powers. Alacer contended the unlawful business practices cause of action failed because plaintiff had not sufficiently pleaded the underlying business practices, alleged the loss of money or property, or identified the misappropriated trade secret. Finally, it claimed the declaratory relief cause of action exceeded the scope of plaintiff's leave to amend the prior complaint and failed to join indispensable parties.
The court sustained the demurrer to all causes of action without leave to amend. It held plaintiff failed to state any of the purported causes of action. It further held all the causes of action except that for conspiracy to defraud violated the scope of amendment permitted by the court's prior orders. The order stated, "To the extent plaintiff . . . is again implicitly requesting the Court to reconsider its previous rulings on the derivative standing issues . . . that request is again denied for failure to satisfy any of the requirements of [Code of Civil Procedure section] 1008."
Neither the written order sustaining Alacer's demurrer nor the attached tentative ruling expressly state the scope of permitted amendment.
"On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed `if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment." ( Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 [ 9 Cal.Rptr.2d 92, 831 P.2d 317].)
Alacer Cannot Demur to Derivative Causes of Action Asserted on Its Behalf
Alacer's demurrer presents an interesting question not squarely addressed by California case law: May a corporation file a demurrer opposing a shareholder derivative complaint — and if so, on what grounds? The parties filed supplemental briefs on this issue at our invitation.
The issue arises from the basic nature of a shareholder derivative action. "`The management [of a corporation] owes to the stockholders a duty to take proper steps to enforce all claims which the corporation may have. When it fails to perform this duty, the stockholders have a right to do so.'" ( Jones v. H. F. Ahmanson Co. (1969) 1 Cal.3d 93, 107 [ 81 Cal.Rptr. 592, 460 P.2d 464] ( Jones).) "The shareholders may . . . bring a derivative suit to enforce the corporation's rights and redress its injuries when the board of directors fails or refuses to do so." ( Grosset v. Wenaas (2008) 42 Cal.4th 1100, 1108 [ 72 Cal.Rptr.3d 129, 175 P.3d 1184] ( Grosset).)
But "the particular stockholder who brings the suit is merely a nominal party plaintiff." ( Klopstock v. Superior Court (1941) 17 Cal.2d 13, 21 [ 108 P.2d 906] ( Klopstock).) It is the corporation that "is the ultimate beneficiary of such a derivative suit." ( Ibid.) Thus, "[t]he corporation [is] the real party plaintiff in the action." ( Russell v. Weyand (1935) 5 Cal.App.2d 259, 260 [ 42 P.2d 381].)
Though the corporation is essentially the plaintiff in a derivative action, "[w]hen a derivative suit is brought to litigate the rights of the corporation, the corporation . . . must be joined as a nominal defendant." ( Grosset, supra, 42 Cal.4th at p. 1108.) The corporation must be joined because "its rights, not those of the nominal plaintiff, are to be litigated . . ." ( Beyerbach v. Juno Oil Co. (1954) 42 Cal.2d 11, 28 [ 265 P.2d 1] ( Beyerbach)), and to offer the real defendants res judicata protection from later suits. ( Gagnon Co., Inc. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 453 [ 289 P.2d 466].) Naming the corporation a defendant, not a plaintiff, follows from the joinder rules: "If the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant. . . ." (Code Civ. Proc., § 382.) So "although the corporation is made a defendant in a derivative suit, the corporation nevertheless is the real plaintiff. . . ." ( Jones, supra, 1 Cal.3d at p. 107.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The question now arises — if the corporation is the real plaintiff in a derivative action and the potential beneficiary of any recovery, how can it oppose the action? A demurrer may be filed only by "[t]he party against whom a complaint . . . has been filed. . . ." (§ 430.10.) The complaint in a derivative action is filed on the corporation's behalf; not against it. ( Jones, supra, 1 Cal.3d at p. 107; Beyerbach, supra, 42 Cal.2d at p. 28.) It is only a "nominal defendant." ( Grosset, supra, 42 Cal.4th at p. 1108.) The only reason the corporation is named a nominal defendant is its refusal to join the action as a plaintiff. (§ 382.) "The corporation has traditionally been aligned as a defendant because it is in conflict with its stockholder over the advisability of bringing suit. . . ." (Note, Federal Courts — Diversity of Citizenship: Corporations — Corporation in Derivative Suit Must Be Realigned as Plaintiff When Not Dominated by Individual Defendants (1954) 68 Harv. L. Rev. 193, 194 (Note, 68 Harv. L.Rev.).) In a real sense, the only claim a shareholder plaintiff asserts against the nominal defendant corporation in a derivative action is the claim the corporation has failed to pursue the litigation.
The standing requirements for a derivative action reflect the limited adverse relationship between the shareholder plaintiff and the corporation. The shareholder plaintiff must allege it is a record or beneficial shareholder of the corporation, it presented the basis of the litigation to the corporation's board, and it tried to "secure from the board such action as plaintiff desires." (Corp. Code, § 800, subd. (b)(1), (2).) Demand on the board will be excused only when the plaintiff sufficiently alleges the demand would have been futile. (Corp. Code, § 800, subd. (b)(2); Shields v. Singleton (1993) 15 Cal.App.4th 1611, 1618-1619 [ 19 Cal.Rptr.2d 459].) Thus, for a plaintiff to have standing to file a derivative action, it must allege the corporation knew about the claim and was urged to pursue it to no avail or, in any event, the corporation would not have pursued the claim.
The narrow dispute between a shareholder plaintiff and the corporation also underlies the "special litigation committee" (SLC) defense. The corporation in a derivative action may "appoint a special litigation committee of independent directors to investigate the challenged transaction." ( Desaigoudar v. Meyercord (2003) 108 Cal.App.4th 173, 185 [ 133 Cal.Rptr.2d 408] ( Desaigoudar).) If the SLC "reasonably determines that it is not in the best interests of the corporation to pursue the claims asserted in the derivative action, that decision is protected by the business judgment rule." ( Finley v. Superior Court (2000) 80 Cal.App.4th 1152, 1158 [ 96 Cal.Rptr.2d 128] ( Finley).) If the court then determines "`as a matter of fact . . . the committee members were disinterested and . . . they conducted an adequate investigation . . . it must dismiss the derivative action.'" ( Desaigoudar, supra, 108 Cal.App.4th at pp. 185-188 [court reviews committee's independence and the investigation's adequacy, but does not review reasonableness of the SLC's decision].) Thus, for a shareholder plaintiff to take a derivative action to trial and prevail, it must be able to withstand the corporation's objection that it legitimately does not want to pursue the litigation.
The conclusion follows that a nominal defendant corporation generally may not defend a derivative action filed on its behalf. The corporation may assert defenses contesting the plaintiff's right or decision to bring suit, such as asserting the shareholder plaintiff's lack of standing or the SLC defense. (Corp. Code, § 800, subd. (b)(1); Desaigoudar, supra, 108 Cal.App.4th at p. 185.) We need not now enumerate what other defenses a corporation may assert in a derivative action, if any. It suffices to hold the corporation has no ground to challenge the merits of a derivative claim filed on its behalf and from which it stands to benefit.
While California law on derivative actions supports this conclusion, other jurisdictions have explicitly constrained a corporation's ability to challenge a derivative action. (See, e.g., Swenson v. Thibaut (1978) 39 N.C.App. 77 [ 250 S.E.2d 279, 293-294] ( Swenson); Sobba v. Elmen (E.D.Ark. 2006) 462 F.Supp.2d 944, 947-950 ( Sobba); Rowen v. Le Mars Mut. Ins. Co. of Iowa (Iowa 1979) 282 N.W.2d 639, 645 ( Rowen); Meyers v. Smith (1933) 190 Minn. 157 [ 251 N.W. 20, 21] ( Meyers); accord, Note, 68 Harv. L. Rev., supra, at p. 194 ["in no case may the nominal defendant [in a derivative action] raise defenses of the real defendants"]; Note, Defenses in Shareholders' Derivative Suits — Who May Raise Them (1952) 66 Harv. L. Rev. 342, 343 ["the proper party to invoke a given defense should be the party whom the defense is designed to protect"]; see also id. at p. 345 ["The right of the corporation to defend, however, should be limited to those aspects of the case in which it is a real defendant."].)
The plaintiff raised a similar issue in Beyerbach, which the court did not resolve while upholding the requirement that stockholder plaintiff's post security in derivative actions. ( Beyerbach, supra, 42 Cal.2d at p. 25.) It noted, "Even if we assume, as argued by plaintiff, that if the [derivative] action is to be tried on its merits it is [the defendant directors] who will carry the main burden of defending the suit and that the corporation need not actively resist the claims of plaintiff [citations], it does not follow that the amount [of security] fixed as to any defendant is unreasonable. . . ." ( Ibid., italics added.)
In Swenson, supra, 250 S.E.2d 279, the court thoroughly analyzed the issue. In that derivative action, shareholders alleged corporate officers and directors had breached their fiduciary duty to the corporation through "a pattern of self-dealing and negligent acquiescence . . . amounting to a `looting' of the [corporation's] assets." ( Id. at p. 285.) The individual defendants and the corporation moved to dismiss on several grounds; the trial court denied the motions. ( Id. at pp. 287, 295.) On appeal, the court raised on its own motion a "threshold question" — "to what extent, if any, is a corporation entitled to defend itself against a derivative action when it is named as a party defendant?" It noted — consistent with California law — "[a] corporation is, beyond question, a necessary party to any litigation brought derivatively in its name, [citation], and is customarily captioned a nominal defendant. However, as the action is brought in the right of the corporation and any recovery thereunder accrues to the benefit of the corporation and not to the nominal plaintiff's who bring the action derivatively, it is apparent that the interests of the corporation are not necessarily adverse to those of the plaintiff's and may be identical to them." ( Id. at p. 293.)
The Swenson court found "apparent" the "anomaly of a corporation, in whose name and right a derivative action is brought, being allowed to defend itself against itself." ( Swenson, supra, 250 S.E.2d at p. 294.) The anomaly "is particularly apparent," the court continued, "where the alleged wrongdoers are in control of the corporation." ( Ibid.) Thus, it readily concluded "the corporation . . . should not be allowed to defend this action on its merits, and portions of [the corporation's] appeal will be dismissed for lack of standing. . . ." ( Ibid.) Some defenses may be available to a corporation in unusual derivative actions, however. The shareholder plaintiff's "lack of standing . . . to sue derivatively for reasons of insufficient representation of shareholders and a failure on [its] part to make a demand upon the board of directors" are defenses "peculiar to the corporation alone, and may be properly raised only by the nominal defendant who, for purposes of those matters, ceases to be a nominal defendant and becomes an actual party defendant." ( Ibid., italics omitted.) The corporation may be able to defend on the merits "an action to enjoin the performance of a contract by the corporation, to appoint a receiver, to interfere with a corporate reorganization or to interfere with internal management where there is no allegation of fraud or bad faith," or other situations where the corporation has "interests adverse to those of the nominal plaintiff's bringing the action derivatively." ( Ibid.) Finally, the corporation may assert lack of personal jurisdiction, lack of subject matter jurisdiction, or improper venue. ( Ibid.)
Accordingly, the Swenson court held "the corporation, except as noted above, may not defend itself against the derivative action on the merits and must limit its defenses, if any, to the pretrial matters proper to it. Where a corporation seeks to extend its defenses beyond those areas in which it may properly conduct them, dismissal will lie against it." ( Swenson, supra, 250 S.E.2d at p. 294.)
Swenson's limitation on a corporation's ability to defend the merits of a derivative action brought on its behalf was recently adopted by another court. ( Sobba, supra, 462 F.Supp.2d at pp. 948-949.) The Sobba court struck the corporation's answer in a derivative action because it asserted affirmative defenses on behalf of the individual defendants. ( Id. at p. 950.) To be sure, a corporation can dispute the plaintiff's standing by filing an answer in a derivative action. "A corporation may raise the defense that the stockholder failed to comply with the condition precedent of first calling on it to file suit, that it has already filed suit, that the corporation has already achieved a recovery, that the corporation has by final adjudication failed to recover, or other similar defenses." ( Ibid., fn. omitted.) Otherwise, the court held, "the general rule for corporate participation in a derivative action is that `[u]nless the derivative action threatens rather than advances corporate interests, [the corporation] cannot participate in the defense on the merits.'" ( Id. at p. 947 [predicting Arkansas law].) "Because the claims asserted and the relief sought in [the derivative] complaint would, if proven, advance rather than threaten the interests of the nominal defendants, the nominal defendants must remain neutral in this action." ( Id. at p. 949.)
The Sobba court noted a practical and ethical reason why corporations should not defend derivative suits on the merits. "Allowing the nominal [corporate] defendants to defend on the merits in effect would allow [the individual defendant] to shift the cost of his defense of the derivative suit to the corporations against which he has allegedly committed tortious conduct. . . . [The individual defendant's] using his control of the nominal defendants to get them to defend on the merits would shift the cost of his defense to the corporations even if [the shareholder plaintiff's] claims are proven." ( Sobba, supra, 462 F.Supp.2d at p. 950, citation omitted.)
Two state high courts have recognized corporations' limited ability to contest derivative actions. The Supreme Court of Iowa affirmed the dismissal of a corporation's cross-claims in a derivative action. ( Rowen, supra, 282 N.W.2d at p. 645.) It held the corporation "should take no active part in the controversy, merely awaiting the outcome and reaping the fruits of any judgment for plaintiff's." ( Ibid.) Similarly, the Supreme Court of Minnesota affirmed the striking of a corporation's affirmative defenses in a derivative action. ( Meyers, supra, 251 N.W. at pp. 20-21.) It held the corporation "is a nominal party only" with no "right to here step in and, by answer, attempt to defeat what is practically its own suit and causes of action. Nor have the two individual defendants, in control thereof, any right to use the corporation for any such purpose or to impose on the corporation the burden of fighting their battle." ( Id. at p. 21; accord, Slutzker v. Rieber (Ch.Ct. 1942) 132 N.J. Eq. 412 [ 28 A.2d 528, 529-530] [striking answer filed by nominal corporate defendant in derivative action; "[t]here is no occasion for the corporation to intermeddle in the controversy" as "`the corporation is required to take and maintain a wholly neutral position, taking sides neither with the complaining stockholder nor with the defending director'"].)
For these reasons, much of Alacer's demurrer to the derivative causes of action is misplaced. It challenges the constructive trust, injunctive relief, and unlawful business practice causes of action. But it stands to benefit from these claims. In the constructive trust cause of action, plaintiff alleges the Director defendants wrongly used and sold corporate assets. In the injunctive relief cause of action, plaintiff seeks to enjoin the Director defendants from squandering Alacer assets in a variety of ways. In the unfair business practices cause of action, plaintiff alleges the Director defendants sold Alacer assets below cost and misappropriated Alacer trade secrets. Alacer has a substantial interest in recovering on these claims, should they be proven.
In contrast, Alacer asserts in its demurrer only one viable interest in opposing these claims — plaintiff's alleged lack of standing. It does not otherwise show any viable ground to oppose the derivative causes of action filed on its behalf. It does not maintain "that it has already filed suit, that [it] has already achieved a recovery, [or] that [it] has by final adjudication failed to recover." ( Sobba, supra, 462 F.Supp.2d at p. 950.) Nor has it alleged any legitimate "interests adverse to those of the nominal plaintiff's bringing the action derivatively." ( Swenson, supra, 250 S.E.2d at p. 294.) Allowing Alacer to demur to the derivative causes of action on grounds that the Director defendants could assert for themselves if they chose, and did, "would allow [the Director defendants] to shift the cost of [their] defense of the derivative suit to the corporation[] against which [they have] allegedly committed tortious conduct." ( Sobba, supra, 462 F.Supp.2d at p. 950.) The Director defendants lack "any right to use the corporation . . . to impose on the corporation the burden of fighting their battle." ( Meyers, supra, 251 N.W. at p. 21.) The court erred by entertaining, let alone sustaining, Alacer's demurrer on any ground other than lack of standing.
Alacer's counterarguments do not hold water. First, it observes that the corporation in a derivative action "is the defendant . . . to the extent that [it] has determined that pursuit of the lawsuit is not in its best interests." True. This is why the corporation can raise the shareholder plaintiff's failure to present a demand to the board and assert the SLC defense. (Corp. Code, § 800, subd. (b)(2); Desaigoudar, supra, 108 Cal.App.4th at p. 185.) It does not authorize the corporation to otherwise challenge the derivative action brought on its behalf.
Second, Alacer cites California cases allowing the corporation to defend against derivative actions. But most of these cases involved the SLC defense. ( Desaigoudar, supra, 108 Cal.App.4th at p. 185; Finley, supra, 80 Cal.App.4th at p. 1158; Will v. Engebretson Co. (1989) 213 Cal.App.3d 1033, 1040 [ 261 Cal.Rptr. 868].) In another case, the court noted without comment that the corporation and the individual defendants had jointly demurred and moved for summary judgment. ( Daly v. Yessne (2005) 131 Cal.App.4th 52, 56 [ 31 Cal.Rptr.3d 420] ( Daly).) There was no discussion whether the corporation had any right to assert the individual defendants' defenses. "[C]ases are not authority for propositions not considered therein." ( Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 372 [ 20 Cal.Rptr.2d 330, 853 P.2d 496].)
The federal cases upon which Alacer relies are likewise inapt. ( In re CNET Networks, Inc. (N.D.Cal. 2007) 483 F.Supp.2d 947, 949 [lack of standing (no demand)]; Johnson v. Hui (N.D.Cal. 1991) 811 F.Supp. 479, 486 [SLC defense]; In re Zoran Corp. Derivative Litigation (N.D.Cal. 2007) 511 F.Supp.2d 986 [corporation and individual defendants moved to dismiss for lack of standing; unclear if corporation joined in part of motion challenging whether plaintiff stated claims — no discussion whether corporation would have right to do so]; Opici v. Cucamonga Winery (S.D.Cal. 1947) 73 F.Supp. 603 [same, except motion challenged personal jurisdiction instead of standing].)
Third, Alacer relies upon cases invoking the exception that corporations may defend against derivative actions only when the suit threatens the corporation itself. ( Blish v. Thompson Auto. Arms Corp. (1948) 30 Del.Ch. 538 [ 64 A.2d 581, 607] [noting "the general rule to be that a corporation may defend a stockholder's derivative action (although theoretically any recovery rebounds to the benefit of the corporation) if the corporate interests are threatened by the suit"; corporation could defend derivative action seeking to cancel shares]; Weiland v. Northwestern Distilleries, Inc. (1938) 203 Minn. 600 [ 281 N.W. 364, 365] [corporation is indispensable party and must be served with notice of appeal from judgment in derivative action voiding defendant's shares of corporation's stock]; Corey v. Independent Ice Co. (1917) 226 Mass. 391 [ 115 N.E. 488, 489-490] [corporation could defend itself against derivative action seeking to overturn corporate reorganization and threatening refund of stock sale proceeds]; Godley v. Crandall Godley Co. (N.Y.App.Div. 1917) 181 A.D. 75 [ 168 N.Y.S. 251, 254] ["Ordinarily . . . there will be no occasion to spend considerable sums of the corporation's money to defend against [a derivative] action brought for its benefit . . ."; corporation permissibly defended derivative action seeking to place it in receivership]; Kirby v. Schenck (Sup.Ct. 1941) 25 N.Y.S.2d 431, 432-433 [denying plaintiff's summary judgment motion in derivative action challenging corporation's defense of officers and directors in a prior derivative action; record on summary judgment did not disclose whether prior action "so injuriously threatened or involved" corporation's own interests "as to justify it in retaining and paying counsel to protect its interests"]; National Bankers Life Insurance Company v. Adler (Tex.Civ.App. 1959) 324 S.W.2d 35, 37 ["If the derivative action threatens rather than advances the corporate interests, the corporation may actually defend the action."]; see also id. at p. 38 ["If the court at an early stage of trial cannot determine who is the actual plaintiff then the corporate defendant should be permitted to raise the venue matter and to answer."].) This exception may well exist under California law, or it may not. We need not decide this here, as Alacer does not assert any viable basis for invoking such an exception.
Alacer also relies upon cases in which federal courts determined diversity jurisdiction in derivative actions by "realigning" nominal defendant corporations as plaintiff's. These cases do not speak to whether a corporation may defend the merits of a derivative action. (See Smith v. Sperling (1957) 354 U.S. 91, 93 [ 1 L.Ed.2d 1205, 77 S.Ct. 1112]; Indianapolis v. Chase National Bank (1941) 314 U.S. 63, 69 [ 86 L.Ed. 47, 62 S.Ct. 15]; Liddy v. Urbanek (11th Cir. 1983) 707 F.2d 1222, 1224; cf. Van Gelder v. Taylor (N.D.Ill. 1985) 621 F.Supp. 613, 620-622 [looking to corporation's residence when deciding venue].)
Finally, Alacer worries about a hypothetical situation in which the corporation must "sit idly by" while a shareholder pursues a patently meritless derivative claim. But that is not our situation — the Director defendants demurred to plaintiff's complaint on similar grounds as Alacer. Moreover, Alacer has not shown what harm the corporation would incur in the hypothetical case. If the corporation opposes the action for any legitimate business reason, its disinterested directors may assert the SLC defense. ( Desaigoudar, supra, 108 Cal.App.4th at p. 185; Finley, supra, 80 Cal.App.4th at p. 1158.) And if the corporation chooses not to assert the SLC defense, no substantial harm appears to befall the corporation from "merely awaiting the outcome and reaping the fruits of any judgment for plaintiff's." ( Rowen, supra, 282 N.W.2d at p. 645.) Other than contesting plaintiff's standing, this is exactly what Alacer should do here.
The parties have not briefed the effect, if any, of a corporation's right or potential duty to indemnify directors, officers, or agents for expenses incurred in defending or defeating a derivative action. (Corp. Code, § 317, subds. (c) [limited right to indemnify agent against expenses incurred defending or settling derivative action], (d) [duty to indemnify agent against expenses incurred succeeding on the merits against derivative action].) If the expected indemnity expense renders it an unwise business judgment for the corporation to "sit idly by" (to use Alacer's phrase) while litigation progresses, the corporation may avail itself of the SLC defense.
Plaintiff Has Standing As a Beneficial Shareholder to Assert the Derivative Claims
We turn now to the one cognizable ground for Alacer's demurrer to the derivative causes of action: plaintiff's alleged lack of standing. To have standing, plaintiff must allege she "was a shareholder, of record or beneficially . . . at the time of the [relevant] transaction" (Corp. Code, § 800, subd. (b)(1)), and made demand upon the board (Corp. Code, § 800, subd. (b)(2)). Alacer first contends plaintiff did not allege she was either a record or beneficial Alacer shareholder.
But plaintiff alleged a community property interest in Alacer. She alleged she and her husband both devoted substantial time and effort during their marriage to creating Alacer's vitamin supplements and developing its business. "[L]ong ago our courts recognized that, since income arising from [a spouse's] skill, efforts and industry is community property, the community should receive a fair share of the profits which derive from the [spouse's] devotion of more than minimal time and effort to the handling of [his or her] separate property." ( Beam v. Bank of America (1971) 6 Cal.3d 12, 17 [ 98 Cal.Rptr. 137, 490 P.2d 257].) "The community is entitled to the increase in profits attributable to community endeavor," regardless of which spouse's efforts and separate property are involved. ( In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 851-852 [ 21 Cal.Rptr.2d 642] [community entitled to increased profits generated by husband's efforts for wife's separate property company].) Thus, even if Alacer was initially her husband's separate property, plaintiff may have acquired a community property interest in it through their alleged joint devotion of time and effort to it during their marriage. ( Beam, supra, 6 Cal.3d at p. 17; Dekker, supra, 17 Cal.App.4th at p. 852.) Plaintiff alleges the increase in value of the Alacer stock, in excess of that attributed to a fair return on her husband's original investment, is community property. And the Trust directs the trustees to satisfy this community property interest by transferring Alacer stock to plaintiff.
For purposes of the demurrer, assuming as we must the truth of the allegations, plaintiff's alleged community property interest in Alacer potentially renders her a beneficial shareholder. "[C]ourts in California have historically given derivative suit standing requirements a liberal construction." ( Pearce v. Superior Court (1983) 149 Cal.App.3d 1058, 1066 [ 197 Cal.Rptr. 238].) The Legislature extended standing from record owners to beneficial owners as part of "the 1975 liberalization of the standing requirements," designed to bring California in line with the majority rule that "`it is sufficient that the plaintiff be an equitable shareholder or unregistered owner of shares.'" ( Id. at p. 1065; accord, Daly, supra, 131 Cal.App.4th at p. 61 ["equitable ownership may confer standing upon a plaintiff to sue derivatively . . ."].) While the Trust may be the only record shareholder, plaintiff's alleged community property interest in Alacer, if true, essentially makes her an unregistered Alacer shareholder. Plaintiff's community property interest in Alacer satisfies the "liberal" standing requirement of beneficial ownership. ( Pearce, supra, 149 Cal.App.3d at p. 1066.)
Defendant wrongly contends plaintiff lacks beneficial ownership because no court has yet adjudicated her community property claim. It likens her interest in Alacer to an unexercised stock option or undistributed inheritance. (See Daly, supra, 131 Cal.App.4th at p. 61 [stock option holder "`is not an equitable shareholder of the corporation'"]; Klopstock, supra, 17 Cal.2d at p. 17 [legatee of shares lacks derivative standing; applying stricter, pre-1975 standing requirement].) Not so. "The respective interests of the husband and wife in community property during continuance of the marriage relation are present, existing, and equal interests." (Fam. Code, § 751, italics added; cf. D'Elia v. D'Elia (1997) 58 Cal.App.4th 415, 427 [ 68 Cal.Rptr.2d 324] ( D'Elia) [spouses had equal interest in stock by "operation of California's community property laws"].) Plaintiff's alleged community property interest was created during their marriage. She allegedly has a present and existing interest in Alacer stock already — she does not need to do anything to trigger her interest. And while a court may confirm her community property interest, it cannot create it. At any rate, plaintiff seeks such confirmation here in her declaratory relief cause of action.
Defendant misplaces its reliance on the terms of the Trust, claiming it does not make plaintiff a beneficiary. This much is true — plaintiff is not a trust beneficiary. A beneficiary is "a person to whom a donative transfer of property is made . . ., and: [¶] . . . [¶] (c) As it relates to a trust, means a person who has any present or future interest, vested or contingent." (Prob. Code, § 24, subd. (c).) Plaintiff claims she has a community property interest in Trust assets, the Alacer stock, and that the Trust directs the trustees to distribute no more than 46 percent of the Alacer shares to her to satisfy any community property interest she may have in the stock. This alleged interest might satisfy the requirement that she have a "present or future interest, vested or contingent." ( Ibid.)
The court took judicial notice of the Trust, which plaintiff had attached to a complaint in another action.
But plaintiff's alleged community property interest does not satisfy the requirement for a "donative transfer of property." (Prob. Code, § 24.) "The respective interests of the husband and wife in community property during continuance of the marriage relation are present, existing, and equal interests." (Fam. Code, § 751.) If plaintiff has a community property interest in the Trust's Alacer stock, then her husband, by directing the trustees to issue Alacer shares to plaintiff to satisfy her community property interest (if any), would not be giving plaintiff anything to which she is not already entitled. Any community property interest she has in the Alacer stock is already "present" and "existing," regardless of the Trust's distribution provision. Transferring Trust assets to satisfy an existing obligation is the antithesis of a donative transfer.
The plain language of the Trust amendment shows a restriction on the trustees' ability to transfer Alacer stock to plaintiff, not a donative transfer. The amendment notes plaintiff's husband's "pending dissolution of marriage from my wife, Ymelda," his "desire that [plaintiff] not obtain or have control of a majority of the shareholder interest of Alacer, because of her inability to properly run the business," and his "intention that of my entire estate [plaintiff] receive nothing of my separate property and only receive her community share of our community property, if any." It directs the trustees to "distribute not more than 46% of the shares now held in my name to Ymelda, as her community share of my entire estate," but only if "at the time of my death [she has] a community property interest in the stock of Alacer." And it directs the trustees to satisfy any remaining community property interest plaintiff may have with assets "from my estate as probated by the court and that it not be Alacer stock." Plaintiff's husband thereby limited the trustees to satisfying plaintiff's community property interest with no more than 46 percent of the Alacer stock. He did not make a gift of his separate property to plaintiff. There was no donative transfer of property to plaintiff.
We express no opinion regarding the validity of the Trust's restriction in the event plaintiff's community property interest exceeds 46 percent.
Thus, defendant confuses being a trust beneficiary with being a beneficial shareholder. Plaintiff is a beneficial shareholder of Alacer because she alleges a community property interest in the Alacer stock held by the Trust. Through her alleged community property interest, plaintiff is already entitled to some of the Alacer stock held in the Trust's name. (Fam. Code, § 751; D'Elia, supra, 58 Cal.App.4th at p. 427.) Although the Trust contains no donative transfer of property to plaintiff, and in fact restricts the trustees' ability to transfer Alacer stock to plaintiff to satisfy her community property interest, the Trust does not and cannot defeat her alleged beneficial ownership.
Plaintiff did not waive her standing as a beneficial shareholder by asserting her standing claim in amended complaints. The court had rejected plaintiff's beneficial shareholder claim in sustaining Alacer's demurrer to the second amended complaint. Plaintiff responded by filing the third amended complaint in which she continued to assert beneficial shareholder standing, but added allegations purporting to grant her standing as a trustee and Alacer director. Defendant contends plaintiff conceded the demurrer's merit — i.e., that her beneficial shareholder claim lacked merit — by amending her complaint to allege new standing theories. ( Sheehy v. Roman Catholic Archbishop (1942) 49 Cal.App.2d 537, 540-541 [ 122 P.2d 60] ["When [the plaintiff] amended his complaint after the general demurrer was sustained he in effect admitted that the demurrer was good and that his complaint was insufficient to state a cause of action."].) We doubt the rule applies here, because plaintiff did not abandon her beneficial shareholder claim in response to the sustained demurrer. She stood by her claim, merely bolstering it by asserting two additional theories. And even if the rule does apply, we exercise our discretion to reach the issue. ( Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 749, fn. 4 [ 53 Cal.Rptr.3d 203] [reaching standing issue rejected by trial court on demurrer and reasserted in amended complaint]; Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1468 [ 48 Cal.Rptr.2d 235] [court has discretion to reach legal issue waived below].)
Because plaintiff satisfied the first condition of standing by alleging she is a beneficial shareholder, we turn to the second condition: demand on the board. (Corp. Code, § 800, subd. (b)(2).) Plaintiff satisfied this condition by alleging, "in November 2003, [she] delivered to the Board of Directors a true copy of the Complaint which Plaintiff proposed to file and demanded that the Board take such actions necessary for the corporation to prosecute the cause of action against the [Director] Defendants." Plaintiff makes this allegation with sufficient particularity. (Corp. Code, § 800, subd. (b)(2); Oakland Raiders v. National Football League (2001) 93 Cal.App.4th 572, 587 [ 113 Cal.Rptr.2d 255].) Defendant contends this allegation is insufficient to give her standing as a trustee because plaintiff did not make her demand on behalf of the Trust. Because plaintiff has standing as a beneficial shareholder, not a trustee, she had no need to make the demand on behalf of the Trust.
Thus, plaintiff has standing as a beneficial Alacer shareholder to assert derivative claims. The court erred in sustaining Alacer's demurrer to the shareholder derivative causes of action on the ground that plaintiff lacked standing. For those paragraphs of the demurrer challenging the derivative claims on the merits, the court should have stricken these paragraphs on its own motion. (See § 436, subd. (a) ["The court may . . . at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant . . . or improper matter inserted in any pleading."].) The Court Correctly Sustained the Demurrer to the Declaratory Relief Claim, but Should Have Granted Leave to Amend
For the benefit of the parties and the court, paragraph 1 of Alacer's demurrer, challenging all derivative causes of action on standing grounds, must be overruled. Paragraph 2, challenging plaintiff's standing to sue on behalf of the Trust, and 3, asserting that no cause of action is stated on behalf of the Trust, must be stricken as irrelevant. Plaintiff sues on behalf of Alacer in the derivative claims and on behalf of herself on the balance of the complaint. Likewise, paragraphs 5 through 8, challenging the derivative causes of action on the merits must be stricken. Paragraphs 4 and 9 of Alacer's demurrer, challenging the first and sixth causes of action for fraud and declaratory relief respectively are addressed separately in this opinion.
Plaintiff added one entirely new cause of action in the third amended complaint: the sixth cause of action for declaratory relief. Plaintiff sought a declaration that plaintiff has a community property interest in Alacer shares. Because this is the cause of action by which plaintiff may prove her standing to sue derivatively on behalf of Alacer, Alacer has standing to challenge the sufficiency of the allegations. Alacer challenges this cause of action on two grounds. While the second ground asserted by Alacer has merit, plaintiff should have leave to amend to remedy the error.
First, Alacer contends plaintiff could not add a new cause of action to the third amended complaint. It claims the order sustaining the demurrer to the prior complaint with leave to amend granted plaintiff leave to amend only the causes of action asserted in the prior complaint, not leave to add entirely new causes of action. ( People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785 [ 57 Cal.Rptr. 227] ["such granting of leave to amend [in an order sustaining a demurrer] must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained"].)
This rule is inapplicable here because the new cause of action directly responds to the court's reason for sustaining the earlier demurrer. The court found plaintiff failed to allege she had standing as a beneficial shareholder of Alacer to bring shareholder derivative claims. The new declaratory relief cause of action supports her standing claim by seeking a declaration that she has a community property interest in Alacer — i.e., that she is a beneficial shareholder of Alacer. Plaintiff may not have been free to add any cause of action under the sun to her complaint, but the court should have allowed her to add this cause of action to establish her standing.
Second, defendants contend plaintiff failed to join indispensable parties to the declaratory relief cause of action. "Where a number of persons have undetermined interests in a trust fund and one of them, acting adversely to the others, seeks to recover the whole, to fix his share, or recover a portion claimed by him, the other persons are indispensable parties." ( Hebbard v. Colgrove (1972) 28 Cal.App.3d 1017, 1026 [ 105 Cal.Rptr. 172] ( Hebbard); accord, Weil Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶ 2:165, p. 2-44.1.) The Trust directs the trustees to distribute Alacer shares to plaintiff, defendant Ronald J. Patrick, Alice Patrick Nigl (the daughter of plaintiff's husband), and to either "the issue of [plaintiff's husband] and [plaintiff]" (as alleged in the complaint) or plaintiff's husband's "lineal issue" (as set forth in the Trust, of which the court took judicial notice).
The court correctly sustained the demurrer for plaintiff's failure to join indispensable parties, namely, Alice Patrick Nigl and plaintiff's husband's lineal issue. (§ 430.10, subd. (d) [defendant may demur for defect in parties]; see also Hebbard, supra, 28 Cal.App.3d at p. 1026.) But it erred by denying leave to amend. Nothing on this record suggests plaintiff will be unable to name the indispensable parties as defendants in an amended complaint. She should have leave to name them.
Plaintiff Cannot State the Fraud Cause of Action
Notwithstanding the limitations on Alacer's right to challenge the derivative claims brought on its behalf, nothing restricts Alacer from demurring to direct claims against it. Plaintiff asserts one such cause of action.
Plaintiff's fraud cause of action is a direct claim against Alacer. "`[T]he action is derivative, i.e., in the corporate right, if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock and property without any severance or distribution among individual holders, or it seeks to recover assets for the corporation or to prevent the dissipation of its assets.'" ( Jones, supra, 1 Cal.3d at p. 106.) In the fraud cause of action, plaintiff alleged the Director defendants misrepresented their intentions to serve as directors on an interim basis and for limited compensation, and that she relied upon the misrepresentations in voting them onto the board. As a result, she alleges, defendants fired her and ceased various benefits she received from Alacer. The gravamen of this claim is injury to plaintiff herself, not to Alacer or its shareholders as a group. ( Id. at p. 107.) Her extraneous allegations about the Director defendants' conflicts of interest and excessive spending do not make this a derivative claim.
The first cause of action is mislabeled conspiracy to defraud. "Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration." ( Applied Equipment Corp. v Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511 [ 28 Cal.Rptr.2d 475, 869 P.2d 454].) The cause of action here is for fraud. The charging allegations are directed against the Director defendants acting in their capacity as trustees. It is unclear how plaintiff intended to attribute their acts to the corporation, but, as shown below, the fraud cause of action fails in any event because plaintiff cannot allege causation.
The court correctly sustained the demurrer to the fraud cause of action without leave to amend because plaintiff cannot allege causation. "`In an action for [common law] fraud, damage is an essential element of the cause of action.' [Citation.] `Misrepresentation, even maliciously committed, does not support a cause of action unless the plaintiff suffered consequential damages.'" ( Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 202 [ 132 Cal.Rptr.2d 490, 65 P.3d 1255].) "At the pleading stage, the complaint `must show a cause and effect relationship between the fraud and damages sought; otherwise no cause of action is stated.'" ( Ibid.) "`Assuming . . . a claimant's reliance on the actionable misrepresentation, no liability attaches if the damages sustained were otherwise inevitable or due to unrelated causes.'" ( Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 365 [ 17 Cal.Rptr.3d 39], italics omitted ( Goehring) [student's damages caused by dismissal from school, not misrepresentations inducing him to enroll]; Gagne v. Bertran (1954) 43 Cal.2d 481, 491-492 [ 275 P.2d 15] ( Gagne) [property owner's damages caused by soil conditions, not misrepresentations inducing him to buy property].)
Plaintiff has not and cannot allege a causal connection between the Director defendants' misrepresentations and her damages. She alleges the Director defendants comprised three of the five trustees of the Trust. They therefore controlled the voting power of the Trust. They could have installed themselves as Alacer directors by majority vote. ( Edwards v. Edwards (1998) 61 Cal.App.4th 599, 602-603 [ 71 Cal.Rptr.2d 653] [voting of shares held by trust governed by majority vote of trustees]; Corp. Code, § 704.) The Trust document has no language to the contrary. Thus, the Director defendants simply did not need plaintiff's vote. And so plaintiff's alleged injury was not caused by the Director defendants' alleged misrepresentations that induced her vote, but by actions they could have taken anyway. (Cf. Goehring, supra, 121 Cal.App.4th at p. 365 [misrepresentations did not cause damages]; Gagne, supra, 43 Cal.2d at pp. 491-492 [same].)
Plaintiff deems this analysis speculative. Not so. What is speculative is any causal connection between the Director defendants' alleged misrepresentations and her alleged damages, once her vote is shown to be superfluous.
The judgment of dismissal in favor of Alacer is reversed. The matter is remanded with directions to the court to vacate its order sustaining Alacer's demurrer to the third amended complaint.
The court is further directed to enter a new order (1) sustaining the demurrer to the fraud cause of action without leave to amend, (2) striking Alacer's demurrer to the derivative causes of action for breach of fiduciary duties, constructive trust, injunctive relief, and unfair business practices, (3) overruling Alacer's overarching demurrer asserting plaintiff's lack of standing, and (4) sustaining Alacer's demurrer to the declaratory relief cause of action but granting plaintiff leave to amend.
Plaintiff shall recover her costs on appeal.
Sills, P. J., and O'Leary, J., concurred.
Petitions for a rehearing were denied November 21, 2008, and the opinion was modified to read as printed above. The petitions of both appellant and respondent for review by the Supreme Court were denied January 28, 2009, S168593. George, C. J., did not participate therein.
In Patrick, the trial court sustained a demurrer in part because the plaintiff failed to allege that she had standing to bring a shareholder claim.
Summary of this case from Storck v. Edelstein
In Patrick, the Court of Appeal held a nominal defendant corporation may not demur to a derivative action filed on its behalf "except on limited grounds such as the shareholder plaintiff's lack of standing" because "the corporation has no ground to challenge the merits of a derivative claim filed on its behalf and from which it stands to benefit."
Summary of this case from Heshejin v. Rostami
In Patrick, a shareholder sued a corporation and its directors for fraud, breach of fiduciary duty, constructive trust, injunctive relief, unfair business practices, and declaratory relief.
Summary of this case from Baeyenss v. Westside Nutrition, LLC
In Patrick, the corporation could not defend the derivative claims brought on its behalf, but it could defend the direct fraud claim because that claim sought relief not on behalf of the corporation, but against it. (Patrick, supra, 167 Cal.App.4th at p. 1016.)
In Alacer, we affirmed in part the judgment dismissing Alacer after the court sustained its demurrer without leave to amend.
Summary of this case from Patrick v. Alacer Corp.
In Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1003-1008, we held Alacer cannot challenge shareholder derivative claims asserted on its behalf, except on limited grounds.
Summary of this case from In re James W. Patrick Trust


text:
Stories >> Stories home >> Daddy's timebomb
Daddy's timebomb
When Lee tragically died, he left behind a fatal gift
Published by: Jenny Bray & Amy Thompson
The house was quiet, too quiet, as I pushed open my front door after a busy day at work. Either I'd gone deaf or my fiance Lee, 30, had taken out our kids Lynden, seven, and Tegan, one. 'Hello?' I called, dropping my bag by the door.
Sticking my head around the door of the lounge, I spotted Lee sleeping face down on the floor under a blanket. 'Typical,' I smiled, kneeling beside him. 'I leave you with the kids and…'
Giving him a nudge, though, he didn't stir. 'Lee?' I frowned.
The kids must've run him ragged! Talking of which, where were they?
'Come on sleeping beauty,' I said, turning Lee to face me. 'Wakey, wakey!'
I reeled back in horror. His face was pale and covered in sick. He wasn't sleeping, he was unconscious. Heart racing, I ran next door to my neighbour Stephen. 'What's wrong?' he gasped.
'It's Lee,' I sobbed. 'Something's happened and I can't find the kids!'
'Lynden's at his friend's house down the road,' Stephen explained.
'I saw him earlier. He said his daddy was sleeping, so he'd put a blanket over him.'
'H-he's not sleeping,' I gulped.
While he called an ambulance, I went back to Lee and phoned his parents Maureen and John to see if they knew where Tegan was.
'She's with us,' John soothed. 'We decided to take her to the park for the day.'
At least I knew where the kids were – but I still had no idea what was wrong with Lee.
At hospital, still unconscious, he was hooked up to drips and monitors. 'He's had an epileptic fit,' the doctor explained. 'We'll keep him in, but he'll be home tomorrow.'
But, the next morning, Lee still wasn't awake. A scan showed he'd had a brain haemorrhage and would never wake again. 'Lee was suffering from cavernous malformation of the brain,' the doctor explained. 'It causes clusters of enlarged blood vessels in the brain, which can cause bleeding without warning.'
Just like that, my fiancé was gone. But there was worse news to come. 'The condition's hereditary,' the doctor added. 'But we can't test for it. Scans don't show the condition until there's a bleed on the brain.'
I'd lost Lee, was there a chance I could lose Lynden or Tegan, too?
There was no way of telling, I'd have to leave it to fate. I had other things to worry about. 'Tegan's so young still, I'm worried she won't remember her daddy,' I sobbed to Lee's best friend Kevin.
'She will,' he promised. 'We'll make sure of it.'
In the months after Lee's death Kevin, 27, was my rock. And we slowly fell in love. Years passed and we married and had a little girl, Morgan. Together we stuck to our promise, making sure Tegan, six, knew everything about her daddy.
'Did he like swimming?' she asked one evening, as I showed her old photos.
'Loved it,' I smiled. 'He'd throw you in the air and catch you as you splashed into the water.'
She laughed and something about her expression made me catch my breath. Although she looked like me, she reminded me so much of Lee. She'd inherited his artistic side, adored animals, even had an identical birthmark to his on her shoulder. All this time I'd worried about her not remembering him, but the truth was she didn't need to. She was part of Lee.
Even when she came down with a bug she was like her dad, refusing to feel sorry for herself.
'Time for bed,' I smiled, collecting up the photos. 'You'll feel better soon.'
The next morning, though, when I tried getting her up she slumped against me. Her speech was slurred, too.
'Kevin!' I cried. 'Help!'
I called NHS Direct, who told us to take her straight to A&E.
While Kevin stayed at home with Lynden and Morgan, Lee's dad John drove me and Tegan to Burnley General Hospital.
There, doctors whisked her away as she lost consciousness. 'I-I thought she had a cold, what's wrong?' I begged the doctor.
'Tegan's had an epileptic seizure,' he started. 'We'll keep her in overnight…'
Blood pounded in my ears, my knees felt weak. My mind flashed back to five years ago. I'd heard those words before, and look what'd happened to Lee.
I also remembered what else the doctor had said about his condition being hereditary. Was it happening again? No, I couldn't let it.
'She hasn't had a seizure,' I said frantically. 'Her dad died from a brain haemorrhage. Please give
her a scan.'
'Everything points to epilepsy,' the doctor soothed.
'Give her a scan,' I insisted, tearfully. He looked at me, at his notes, then back at me. 'Okay,' he sighed.
As I waited for the results by Tegan's empty bedside, I prayed it would be good news.
Tegan was the spitting image of her dad in so many ways, but what if she was like him in every way? What if she'd inherited the condition that had killed him? It didn't bear thinking of.
Yet I'd no choice but to think of it, again and again.
Don't be like Daddy, Tegan. Don't you dare be like Lee.
When the doctor returned with my little girl's results, I was a nervous wreck. 'I-I was wrong,' he said gently. 'Tegan has cavernous malformation of the brain.'
'No,' I cried 'B-but you've caught it early enough, she'll be okay?'
The doctor looked at me gravely. 'Not quite,' he said slowly. 'The haemorrhage has already caused a stroke, leaving her paralysed down her right side, and she still has a bleed on the brain. We need to transfer her to a specialist hospital for treatment.'
At Manchester Children's Hospital, Tegan was put into an induced coma so they could reduce the swelling on her brain and pump her full of medication.
For a week, I was by her bedside willing her to get better.
Please Lee, I prayed, tearfully. Don't let this happen again. I know she's like you in so many ways, but don't make this one of them.
He must have heard – because she began to improve. And he continued to look down on her, because even though she had to learn how to walk and talk again, she exceeded doctors' expectations. Within a month, she was almost back to her old self.
'Daddy would have been so proud of you,' I said.
But she wasn't out of the woods yet. Fifteen months later, she suffered another haemorrhage.
'The cluster of malformed blood vessels in her brain has doubled in size,' the doctor said. 'If we don't operate, she'll die.'
While Tegan spent 11 hours in theatre, I paced the hospital corridors anxiously. Then her surgeon came out and… he was smiling! 'We got it all,' he said.
It was a miracle.
Three years on, Tegan's been given the all-clear.
And the medical world's come on so far that now Lynden can have a test to see if he has the condition. He's decided he'd rather not know for now, though.
I'm just glad that my kids are like Lee in all the best ways now.
Lindsay Stack, 35, Burnley, Lancashire

redpajama_set_name: RedPajamaCommonCrawl


MUMBAI: Vikas Gupta, who rose to fame with his stint as a contestant in the Bigg Boss house, has become a household name today. Vikas was last seen as the mastermind on the reality show Ace of Space, which was a huge success.
The TikTok app has been a rage on social media these days. Almost everyone is hooked to the app and keeps on posting videos.
The latest to join the craze is none another than the mastermind of television, Vikas Gupta.
Newly, Parth Samthaan, who is seen in Kasautii Zindagii Kay-2, shared a post about Vikas Gupta's #Pikachu Tik Tok.
BIG TWIST Mouli is PREGNANT in Silsila Badalte Rishton ka?


text:
Бар () — город в Жмеринском районе Винницкой области Украины. До 2020 года был административным центром упразднённого Барского района.

Географическое положение
Находится на реке Ров в 68 км от областного центра.

История
Селение под названием Ров было основано в 14 веке после завоевания Подолья литовцами.

В 1533 году польская королева Бона Сфорца (родилась в городе Бари в Италии в 1494 году) прибыла в Ровский замок, выкупила все окрестные земли, приказав строить новый замок на противоположном берегу реки, и дала городу новое название. Название его связывают с названием места рождения королевы. Эти земли были объединены в Барское староство.

Первый замок был построен деревянным (окончен в 1540 году). Река была перегорожена плотиной, благодаря чему образовался пруд, защищавший город и замок. С превращением Бара в значительный торговый и культурный центр замок становился мощной крепостью. Стены его состояли из двойных городен, между которыми была насыпана земля. Замок был укреплен пятью двухъярусными деревянными башнями. Главная башня защищала переезд через реку и имела большие ворота с часовней над ними. В другой башне были въездные ворота в город. Перед въездом в замок размещался бастион, сооруженный из дубовых брусьев, с двумя башнями. Вокруг замка и города был выкопан глубокий ров, заполняемый водой. В 30-х гг. XVII века инженер Гийом Левассер де Боплан на месте деревянного замка построил новый каменный замок новоитальянской системы с облицовкой эскарпов каменной кладкой. В связи с низменным расположением и затопляемостью территории уровень замкового двора был значительно повышен. Вследствие многочисленных военных действий на протяжении веков замок неоднократно разрушался. В настоящее время замок, когда-то второй по величине на Подолье после Каменец-Подольского, находится в руинах.

В 1540 году польский король Сигизмунд I предоставил городу Магдебургское право.

1569 — 1793
После Люблинской унии 1569 года - в составе Подольского воеводства Речи Посполитой.

В ходе восстания Хмельницкого в 1648 году Бар был захвачен казаками под командованием М. Кривоноса, перебившими население города.

В 1676 — 1699 гг. Бар находился под властью Османской империи, но в 1699 году был возвращён Польше.

29 февраля 1768 года в городе была провозглашена Барская конфедерация.

1793 — 1917

После второго раздела Речи Посполитой в 1793 году вошёл в состав Российской империи и стал уездным городом.

С 1796 года — заштатный город в Могилёвском уезде Подольской губернии.

В 1891 году здесь насчитывалось 1240 жилых домов, действовали 1 винокуренный, 4 кожевенных и 4 кирпично-черепичных завода, приходское училище, Свято-Покровский женский монастырь, две православные церкви, католический костел, старообрядческая часовня, несколько еврейских синагог и молитвенных домов.

После начала первой мировой войны город оказался в тылах действующей армии, в июле 1917 года здесь располагалось управление 7-й армии Юго-Западного фронта.

1918 — 1991
В январе 1918 года здесь была установлена Советская власть, но уже в феврале 1918 года Бар был оккупирован австро-немецкими войсками (которые оставались здесь до ноября 1918 года), в дальнейшем город оказался в зоне боевых действий гражданской войны и власть здесь несколько раз менялась. В ходе советско-польской войны в апреле 1920 года Бар захватили наступавшие польские войска, но 24 июня 1920 года они были выбиты частями РККА.

В 1923 году Бар стал центром Барского района Могилёв-Подольского округа Подольской губернии УССР, в 1925—1930 годах — центр Барского района Могилёв-Подольского округа УССР.

10 апреля 1931 года здесь началось издание местной газеты.

27 февраля 1932 года вошёл в состав Винницкой области.

В ходе Великой Отечественной войны 16 июля 1941 года Бар был оккупирован немецко-фашистскими войсками.

В декабре 1941 года в городе создали три гетто, которые в августе — октябре 1942 года были ликвидированы, около пяти тысяч евреев (включая евреев из Румынии) были расстреляны.

25 марта 1944 года в ходе Проскуровско-Черновицкой наступательной операции 1944 г. был освобождён войсками 305-й стрелковой дивизии (полковник А. Ф. Васильев) 74-го стрелкового корпуса 38-й армии 1-го Украинского фронта.

В 1968 году численность населения города составляла 14 тыс. человек.

В 1978 году здесь действовали машиностроительный завод, сахарный завод; спирто-дрожжевой и консервный комбинаты; швейная фабрика, мебельная фабрика, межколхозная строительная организация, райсельхозтехника, комбинат бытового обслуживания, автомобильно-дорожный техникум, строительное ПТУ, шесть общеобразовательных школ, музыкальная школа, девять лечебных учреждений, Дом культуры, восемь библиотек и кинотеатр.

В январе 1989 года численность населения составляла 19 192 человек, основой экономики в это время являлись машиностроительный завод и предприятия пищевой промышленности.

После 1991

В мае 1995 года Кабинет министров Украины утвердил решение о приватизации находившихся в городе машиностроительного завода, предприятия по изготовлению средств механизации и автоматизации производственных процессов, АТП-10552, швейной фабрики, сахарного завода, консервного завода, райсельхозтехники, райсельхозхимии, в июле 1995 года было утверждено решение о приватизации завода сухого обезжиренного молока, хлебозавода и Барского производственного цеха. В октябре 1995 года было утверждено решение о приватизации птицесовхоза.

В июне 1999 года Кабинет министров Украины передал находившиеся в городе АТП-10552 и АТП-10513 в ведение министерства транспорта Украины.

Начавшийся в 2008 году экономический кризис осложнил положение в стране, 24 сентября 2008 года было возбуждено дело о банкротстве Барского завода сухого обезжиренного молока.

На 1 января 2013 года численность населения города составляла 16 442 человек.

В городе дислоцируется 70-й центр инженерного обеспечения (в/ч А0853) вооружённых сил Украины.

Транспорт
 находится в 6 км от железнодорожной станции Бар Юго-Западной железной дороги.

Достопримечательности

 Покровский женский монастырь, известен как монастырь кармелитов ещё с 1616 года.
 Остатки стен когда-то неприступного замка, находятся в парке.
 Дом, в котором проживал М. М. Коцюбинский.
 Костел Святой Анны 1811 год.
 Здание реального училища 1907 год.
 Историческая застройка центра города кон. 19-го нач. 20-го веков.

Галерея

Примечания

Литература
  Bar// Słownik geograficzny Królestwa Polskiego i innych krajów słowiańskich — Warszawa : Filip Sulimierski i Władysław Walewski, 1885. — T. VI : Malczyce — Netreba.
 Bar// Słownik geograficzny Królestwa Polskiego i innych krajów słowiańskich. — Warszawa : Filip Sulimierski i Władysław Walewski, 1880. — T. I : Aa — Dereneczna

Ссылки
 Официальный сайт города Бара
 Исторический очерк о городе

Бар (город, Украина)
Населённые пункты Барского района
Бывшие еврейские местечки Украины
Города Винницкой области

redpajama_set_name: RedPajamaWikipedia


Swimming is a total body workout and a great respite from the daily damage running and jumping can do to your body. Swimming should not be confused with an easy "phone-it-in" workout. It calls for some serious cardio conditioning and coordination.
This year, add something new to your workout and start swimming for exercise. Here are some swimming tips to get you started.
There are a number of reasons athletes head for the pool. Some are rehabbing injuries, while others are looking to switch up their workout. And then there are those who simply want to cool off.
Whatever your reason, the benefits are just as good. Swimming is a total-body workout, engaging muscles that can be missed with other workouts.
"Many people comment, 'I didn't even know I had a muscle there' after swimming for exercise," says Derek Howorth, swim coach and aquatics director for the George Block Aquatic Center in San Antonio, Texas.
Howorth recommends easing into it to ensure you return.
"Comfort is key," Howorth says. "If you are comfortable, you are more likely to try swimming again. So many people who try swimming for the first time start out at such a high effort level that they get tired after doing just a few laps."
Get only the gear you need. Howorth cautions to keep it simple when selecting gear for your swim workout.
"In swimming there are tons of 'toys' so don't get carried away," he says. "To start, you will need a proper training suit and goggles. If you need a little more motivation, get some fins."
Fins can in fact help to motivate newer swimmers as they help to make your kick a little more effective and propel you forward with less effort, giving you more pool time to work on your stroke before exhaustion.
More: Swim Junk: Beneficial or a Crutch?
Nicole is a social media professional and writer. A long-time swimmer and a runner for the past 13 years, she thrives on all things endurance. She's a native New Englander living in California and loves the Patriots, the ocean and her dog.


HEWLETT-PACKARD'S FOURTH FISCAL QUARTER will stand out in the company's history for much more than how many printers and servers the company sold.
At the beginning of the quarter, then Chief Executive Officer Mark Hurd left H-P after the company, while investigating reports of sexual harassment, found he had submitted inaccurate expense reports. H-P scrambled to find a new CEO, only to watch Hurd get scooped up by competitor Oracle (ticker: ORCL).
Quite a quarter indeed. But investors looked past the corporate soap opera and focused on the mundane aspects of Oracle's fourth quarter (ended Oct. 31) when it reported results on Monday afternoon. And they liked what they saw.
Hewlett-Packard (HPQ) earned $2.54 billion, or $1.33 per share after excluding one-time items, on $33.28 billion in revenue. Analysts had expected the company to earn $1.27 per share on $32.7 billion in revenue. H-P also projected adjusted earnings per share of $1.28 to $1.30 for the current quarter, better than the $1.22 per share that analysts were expecting.
Shares rose about 1% in midday trading to $43.67. As the company gains market share, and puts some of its recent theatrics behind it, we think shares could rise further in the coming year.
After rapid growth and numerous acquisitions over the past decade, H-P now competes in a half-dozen major technology sectors. With smaller and more nimble competitors attempting to take market share in everything from servers and storage to computers and printers, H-P must protect its business on numerous fronts every quarter. In the fourth quarter, however, it didn't just protect its market share – it appeared to expand its share in some of its businesses.
Wedbush Securities analyst Kaushik Roy notes that H-P's market-share gains came in its most profitable segments.
"They're gaining share in high-margin businesses, networking and servers," he says in an interview. "And H-P regained market share in printing. In storage, they're reducing their share loss. In the past they were bleeding, losing gobs of market share."
The company was also able to become more profitable overall, in part because of its shift to more high-margin sales – H-P's gross margin grew 110 basis points year over year to 24.8%.
Similar to competitor Dell (DELL) the consumer side of H-P's business struggled, with notebook sales in particular down 3% year over year. But unlike Dell, the company still made money in its computer businesses.
Investors and analysts were also introduced to new CEO Leo Apotheker, who spoke on the company's conference call. Roy gave him good marks for his comments -- "I felt like he was in control" -- and for his commitment to invest more in the company's research-and-development arm. R&D lagged under Hurd, Roy says.
"In the fourth quarter, R&D was up more than revenue growth, both year over year and sequentially," Apotheker said on the call. "We should expect this trend to continue."
H-P made it clear in its earnings release and conference call that its boardroom problems have not shaken its basic business. If margins continue to expand, the share price should, too.


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The Un-Obama
February 8, 2012 9:49 pm / Leave a Comment / Victor Davis Hanson
by Victor Davis Hanson
Tribune Media Services
Barack Obama's favorability in the polls fell when he acted like himself — overexposed, hard-left in his press conferences, and boastful about legislative achievements like Obamacare and a stimulus of more than $1 trillion.
Then a strange thing happened. Obama largely went quiet. Often he was out of sight, vacationing in Hawaii or golfing. It was almost as if he had learned that the less he was seen or heard, the more Americans liked the idea of Obama as president rather than the reality of his constant "Make no mistake about it" and "Let me be perfectly clear" sermonizing.
Obama has now edged ahead of his potential Republican rivals in the polls. He waited for the noisy Republicans to grab national attention in the debates and primaries before moving hard to the left to firm up his base. So while the nation was amused, repelled, and bored by the constant back-and-forth over Mitt Romney's moneymaking and Newt Gingrich's marriages and off-the-cuff philosophizing, President Obama matter-of-factly canceled the vital Keystone-pipeline project.
He even more quietly prepared to ask Congress to raise the debt ceiling to over $16 trillion to accommodate his fourth consecutive reckless trillion-dollar-plus annual deficit — while planning to slash the defense budget in the next decade. Did anyone notice that he made controversial "recess" appointments when Congress was not really in recess — a tactic that, as a senator, he had opposed?
Obama now rarely talks about his supposed signature achievements, whether the huge "pump-priming" deficits or the unpopular Obamacare. Republicans have controlled the House of Representatives only for the past year, yet Obama now blasts them for stopping what he wanted to do as president. In contrast, he hardly praises the Democrats who controlled both houses of Congress for twice that time and enacted all that he wished. How strange to keep silent about successes, only to broadcast failed what-ifs.
President Obama now campaigns on events that happened despite, not because of, him. His administration has cut federal oil leases by 40 percent, subsidized money-losing and now bankrupt green companies, and openly wished that gas and electricity prices would skyrocket to make alternative energy cost-competitive. But recently he bragged that we are pumping more oil than ever. Natural gas is suddenly no longer an earth-warming pollutant but welcomed in vast abundance.
Left unmentioned is the cause of this unexpected energy bounty: The economic stagnation between 2009 and 2012 has curbed energy demand, while private entrepreneurs have used new fracking and horizontal-drilling technology on largely private lands to revolutionize the production of fossil fuels. Again, Obama seems to take credit for things that occurred over his opposition — as if to say, "I knew you'd be glad I didn't get my way." In the fine tradition of American politics, the successes of others are Obama's; Obama's failures are the failures of others.
Both as a candidate and early in his term, Obama blasted all the Bush-Cheney anti-terrorism protocols as either unnecessary or illegal. Iraq was a "dumb" war, and he declared the surge a failure.
But as president, Obama expanded these intelligence measures, and used a beefed-up military to kill Osama bin Laden and go after al-Qaeda captains. He followed the Bush-Petraeus timetable of withdrawal in Iraq and praised our successful nation-building there.
One could almost infer that Obama is now happy that he did not fulfill his earlier promises to close Guantanamo, end renditions and tribunals, prune back the PATRIOT Act, and get out of Iraq by March 2009. George W. Bush is still to be blamed for the present stagnating economy, as he is never to be praised for crafting the security measures vital for our current successes.
This year, Obama will run not so much on what he really did in 2009 and 2010, but more on what he wanted to do, but was stopped from doing, in 2011 and 2012. The president will tell his base that he really wished to go green in a big way, while telling Middle America that lots of oilmen went ahead on their own to find new gas and oil. For his liberal supporters, Obama really did want to end the anti-terrorism protocols, and for the rest of America he really did find those same protocols necessary to kill Islamic terrorists.
The message is clear: If voters do not see or hear the new un-Obama too often, if his left-wing legislative agenda is sidelined, and if the private sector can ignore him, then voters may still sort of like the idea of him back as president.
©2012 Tribune Media Services
Posted in: First Term Policies, Healthcare / Tagged: Barack Obama, Debates 2012, Debt Ceiling, Newt Gingrich, Obamacare, Oil and Gas, Patriot Act, Terrorism
About Victor Davis Hanson
Victor Davis Hanson is the Martin and Illie Anderson Senior Fellow in Residence in Classics and Military History at the Hoover Institution, Stanford University, a professor of Classics Emeritus at California State University, Fresno, and a nationally syndicated columnist for Tribune Media Services. He is also the Wayne & Marcia Buske Distinguished Fellow in History, Hillsdale College, where he teaches each fall semester courses in military history and classical culture.
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Victor Davis Hanson is the Martin and Illie Anderson Senior Fellow at the Hoover Institution; his focus is classics and military history.
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Iran's next move, a Senate impeachment trial, and the beginning of the Democratic primaries. Despite January and February's uncertainties, Victor Davis Hanson, the Hoover Institution's Martin and Illie Anderson Senior Fellow, believes in this certainty: President Trump is on a path to reelection this fall.
Victor Davis Hanson analyses the recent escalation of tensions between the United States and Iran, grades the Trump Administration's performance, and predicts what's to come.
Victor Davis Hanson argues that American pressure on China, Iran, and North Korea is pushing all three countries to a breaking point — which may make each of them more dangerous.
Victor Davis Hanson describes how the impeachment proceedings by House Democrats — and the DOJ inspector general's report — have exposed the weakness of the case against Donald Trump.
Victor Davis Hanson explains the parameters of what he calls the Trump Doctrine — deterrence without intervention — explains how it deviates from the post-Cold War consensus, and argues for why it's a reasonable approach to a changing international landscape.
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Wow: Progressives in Seattle may back conservative who wants to stop doubling down on idiotic homeless policies
Posted on July 5, 2019 in Policy, Politics, U.S. National
(NationalSentinel) There is an old political axiom that says people get the government they vote for, but progressive voters in Seattle may be about to make a statement they are willing to change course.
Like Los Angeles, San Francisco, and other Left-wing, Democrat-run cities along the West Coast. uber liberals who run Seattle have adopted policies that are creating third-world-like conditions in many parts of the city.
Pledge your vote NOW for President Trump in 2020!
For example, the city government has been spending a billion dollars — per year — to 'address homelessness.' But the 'solutions' involve catering to homelessness, not solving the underlying issues that cause it or address the problems massive homeless camps create, like piles of garbage, human waste, crime, and disease.
Now, however, Seattle progressives fed up with doubling down on failure may turn to Ari Hoffman, a conservative city council candidate who has more or less declared his race a one-issue campaign.
According to The Seattle Times, city residents like Christi Muoneke, who immigrated from Nigeria, are weary of politicians who have made many promises but failed to actually solve the issue.
"I'm pretty sure 99 percent of people in Seattle feel compassion for the homeless. We don't think they should be thrown into the ocean," Muoneke told The Seattle Times.
No, but…
"My frustration is that so many decisions in Seattle today are driven by ideology rather than the desire to get results," she added.
And this lack of results has caused Muoneke to pay more attention to who is governing her city when the homeless 'problem' struck close to her home:
Until a few years ago, Christi Muoneke didn't pay much attention to Seattle politics. "I couldn't even tell you who my council member was," she said.
That changed when the street sides around her Beacon Hill home were lined with tents and vehicles occupied by homeless people.
Around the same time, Muoneke and her family had bikes stolen and cars broken into, she says. Her mother-in-law stopped taking walks. Trash piled up in the traffic circle on their corner. Repeated calls to the police about the camping made no lasting impact.
As such, "The 55-year-old mother of two says she may vote for Ari Hoffman, a conservative candidate who has appeared on Fox News and NRA TV," the Times noted.
"I'm a Democrat. I used to consider myself liberal," she told the paper. "But I'm a single-issue voter this time around."
While no POTUS Trump supporter, "I'm not anti-homeless. I'm just anti-people who commit crimes and are given a pass because they're homeless," Muoneke said. "Everybody is entitled to safety and security. All humans want that."
Instead of getting the message, however, she says social justice warriors like the socialist Councilmember Ksahama Sawant have simply adopted condescending attitudes towards people like her, because…Democrat arrogance.
So they are tripling down on the 'solution' they see as the only one: More government spending on things like shelters, healthcare, and other benefits — which will only add to the more than 12,000 estimated homeless in Seattle currently.
"Evil doesn't care about your feelings" — Tee
Regardless of political beliefs, Americans in these Left-wing third-world enclaves in the making will get the government they vote for…again and again until they vote for a different set of policies. That's just the way it works.
That's what an in-depth report by Christopher Rufo published in the City-Journal argues.
He writes that the only way to end the homeless is to end the "homelessness industrial complex" and reverse the policies of massive public assistance promoted by Leftist city leaders.
Correctly, he notes that these policies do nothing to solve the 'homeless' problem and instead just lines public officials' wallets.
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Leftists
SteChatte
Just like stray cats…if you stop feeding them on your porch, they will go away. Basic laws of nature are never popular with Leftists, though.
This has to be fake news because libs are not bright enough to do anything that makes sense. REAL libs love having as many homeless so that they can drive them to the polls so the homeless can be told who to vote for in exchange for more free stuff.
This is the Left's modus operandi to acquire a dependent culture and keep them in power. The only other explanation is that they consider the homeless/addiction camps to be death stops and that these unfortunate souls will eventually all die off anyway. It's always fun to hear how the Left are the compassionate ones, when they really could care less about these people. They're just another form of "useful idiot" the Left always uses as a means to an end.
Screw these libtards. Let them stew in their own juices. This is what they wanted. This libtard lady was all for this socialist crap until the bums started camping out on her sidewalk. Reap it. Deal with it. If they moved the bums out of her neighborhood she would consider the problem solved. Liberals make me wanna puke.
Theodore Roosevelt's mug should be blasted off of Mt. Rushmore. America's 1st Super RINO socialist. FDR then cemented the progessive plan and LBJ kicked it into hyper-drive. The result : Seattle and every other libtarded enclave. Donald Trump is trying to MAGA and eradicate this fungus.
judgeroybean
Oh, Good God, no. If filthy rich liberal Seattle elitists admit they have a problem, reject communism, give up on hate America, atheism, drugs, alcohol, bestiality, pedophilia, and Capitalism, all those worthless bums will come to Portland. Most will be given government jobs, many will be elected. Please God, do not do this to Portland. Let filthy rich elitist Seattle liberals prevail. Keep their society-ruining bums where they fit in.
Collapse of Austin into mass homelessness and filth is a warning for all of America: This is what Democrats do to everything they control – 1AFSYM
[…] "It's time to decriminalize homelessness in Austin," said Holly Kirby with the Left-wing group Grassroots Leadership. (Related: Wow: Progressives in Seattle may back conservative who wants to stop doubling down on idiotic homele….) […]
Collapse of Austin into mass homelessness and filth is a warning for all of America: This is what Democrats do to everything they control – Global news for everyone
Collapse of Austin into mass homelessness and filth is a warning for all of America: This is what Democrats do to everything they control. – Wake Up Slaves!


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Home / Exhibition / Henry Driver: Unseen & Unceasing
Henry Driver: Unseen & Unceasing
Mar 5, 2022 - Apr 1, 2022
Currently on show in The Art Station lobby space, 9am-5pm / Mon-Fri until Friday 1st April
Unseen & Unceasing is part of a creative heritage project that began last year when The Art Station opened areas of the old Saxmundham telephone exchange to the public for the first time. Partnering with BT Adastral Park and Saxmundham Museum, The Art Station ran a series of heritage Open Days that celebrated the building's historical significance as a hub for connectivity in Suffolk from the 1950s-1980s.
Taking inspiration from this project, Henry Driver has created a new digital artwork that visualises the vast, hidden connectivity of technology. The work takes the form of video, projected on a large scale or viewed online or within a 360 degrees virtual environment. For this exhibition Henry also presents plywood 2D and 3D sculptures.
Unseen & Unceasing explores different networks of connectivity and communication – from the manual connections once patched through lines in a telephone exchange, to the instantaneous mobile and fibre optic networks that have spread across the world.
However, these are not the only vast communication networks to exist – below each forest and wood there is an underground web of roots, fungi and bacteria that connects trees and plants to one another. This subterranean social network known as the 'wood wide web', allows trees to talk, trade, and compete with one another – but what impact are humans having on these ancient ecological networks and how will they respond to rising temperatures?
Unseen & Unceasing is an awe inspiring digital immersive experience, inviting the viewer to explore incredibly vivid and complex visual environments and discover more about the nature of connectivity.
On Friday 4th March 2022 The Art Station presented Unseen & Unceasing during a special launch event. This included a large scale projection of the work, a smaller projected work onto a 3D form and several other 3D works installed in the lobby alongside screened excerpts of the work.
From March 4th to April 1st Unseen & Unceasing will continue to be exhibited in our lobby exhibition space. Open from Mon-Fri, 9am-5pm at The Art Station.
Henry Driver
Henry Driver is a young artist based in Suffolk who works with digital media to connect us to the environment and present responses to climate change. He has shown work across the world in Australia, Canada, Czech Republic, Denmark, Estonia, Germany, India, Japan, Portugal, South Korea, Turkey and Taiwan. While in the UK, Driver has shown at Tate Britain, Tate Liverpool and Barbican.
Find out more about Henry's work here: https://www.henrydriverartist.com/
Unseen & Unceasing forms part of the Exchange heritage project, that opened up parts of the former Saxmundham Telephone Exchange to the public in September 2021.
Follow the link below to explore this project – including photos and interviews from former employees of the exchange.
This project has been made possible by funding from The National Lottery Heritage Fund and the Suffolk County Council Covid Continuity Fund for Culture.
Explore Exchange


One account I received the twitter confirmation and points posted, our other account no twitter confirmation and miles did not post, I send a DM, will see if it works.
10 or 11 weeks so far.
Is it over or they just skipped this week?

We're so thankful for our members. Extra Points Sundays will return next week! pic.twitter.com/ovOoEEmJRF
— Marriott Rewards (@MarriottRewards) <a href="
They knew I wasn't available this afternoon to post it on the forums.