These consolidated appeals challenge the award of attorney fees to respondents Kim Agasaveeran and Jeffrey Bryant (respondents) under Code of Civil Procedure section 1021.5 ( section 1021.5 ). Respondents specially appeared in an already-settled securities fraud action brought by the Commissioner of the Department of Business Oversight (DBO) against real estate investment company Investco Management & Development LLC (Investco M&D) and its promoters, Christopher P. Epsha, Steven G. Thompson, Barry D. LeBendig, and Douglas R. Hanson (the promoters). Respondents-victims of the securities fraud-successfully opposed a motion that would have stayed all individual actions by them and other defrauded investors against these defendants. Respondents also raised several issues concerning the fairness of the settlement, resulting in substantive changes to the stipulated interlocutory judgment
We conclude the trial court did not abuse its discretion in finding that respondents: were successful parties against the DBO, Investco M&D and the promoters; enforced an important right affecting the public and a large group of securities fraud victims; and provided necessary, non-duplicative, and significant benefits to this group of investors, while incurring litigation expenses that were out of proportion to their personal interests. Accordingly, we affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Investco M&D and the promoters offered and sold memberships in numerous Investco AV limited liability corporations (Investco AV LLCs) to the public through trade shows and fairs throughout California. According to the DBO, these membership interests constituted "securities" within the meaning of the Corporations Code but were sold without qualification or exemption from qualification by the Department of Corporations. Investco M&D and the promoters represented to prospective investors that the investment funds would be used to purchase specific real property in rural Los Angeles County at a favorable price. However, Investco M&D and the promoters failed to disclose that for each of the Investco AV LLCs, there was a corresponding Landco LLC that had purchased the same property only weeks or months before for a substantially lower price and sold the properties to each Investco AV LLC, resulting in undisclosed profits to Investco M&D and the promoters. This scheme reached 443 investors and raised approximately $22,725,000. In
A. The DBO Action
In January 2011, the DBO filed a civil action against Investco M&D, the promoters, and several Investco AV LLCs for violations of the Corporate Securities Law of 1968 (CSL) and the February 2009 desist and refrain order. The DBO sought to enjoin these defendants from any further selling of unregistered limited liability membership interests in numerous Investco AV LLCs, restitution for the individual investors who were harmed, disgorgement of profits, and civil penalties. In June 2011, the DBO obtained a preliminary injunction that prevented Investco M&D, the promoters, and named Investco AV LLCs from selling, transferring, or otherwise disposing of the real property owned by the LLCs without court approval and from using the LLC bank accounts for anything other than property management and development.
In May 2012, the DBO action settled. Under the confidential settlement agreement, Investco M&D, the promoters, and the named Investco AV LLCs agreed to a permanent injunction enjoining them from: offering to sell or selling any security of any kind, including interests in the LLCs, unless such securities are qualified or exempt; offering or selling any security by means of written or oral communications that contain untrue statements of material fact or omit to state material facts; and violating the February 2009 desist and refrain order. In exchange, the DBO released these defendants from all claims that were or could have been brought by the DBO. On May 14, 2012, the trial court (Hon. Harold Kahn) entered the stipulated interlocutory judgment.
In March 2013, the DBO sent notices of the settlement to approximately 443 investors in the Investco AV LLCs, including respondents. In August 2013, respondents each filed civil actions against Investco M&D, the promoters, the Investco AV LLCs, and various entity and individual defendants, asserting causes of action for the unlawful offer and sale of unqualified
In December 2013, Investco M&D, the promoters, and several Investco AV LLCs (the moving defendants) moved to amend the interlocutory judgment to stay all actions against them arising out of the subject matter of the settlement agreement pending completion of their obligations under the settlement agreement. The moving defendants argued that if respondents obtained the relief they sought in their individual actions, the Investco AV20 and AV21 LLCs would almost certainly be forced to sell their real estate holdings at reduced prices to satisfy the judgments, which would interfere with the terms of the settlement, give respondents far more than their pro rata share of the assets owned by the LLCs in which they invested, and create a shortfall for the remaining Investco AV20 and AV21 LLC investors.
The DBO filed a written joinder to the moving defendants' motion, "adopt[ing] the request and memorandum of points and authorities and supporting documents filed therewith." Additionally, the DBO argued that "[i]f the two individual investors who have recently filed their own separate civil actions ... are allowed to proceed with their own actions before the Special Master has completed his oversight and review of real property sales and distribution of proceeds, these particular investors advance their own interests at the expense of all investors." The DBO stated that "[i]n the interests of promoting the interests of each and all investors equally, and without favoring one investor over another, the Commissioner joins in the Defendants' Motion to Modify the Interlocutory Judgment to enjoin investors, ... and all other persons or entities from seeking from defendants relief of any kind, in law or in equity, creating or enforcing a lien upon any real property, or the doing of any act or thing whatsoever to interfere with the oversight, control, or management of the special master during the course of his appointment in this action and until the filing of Final Judgment."
The trial court (Hon. Ernest H. Goldsmith) held three lengthy hearings on the motion, which we summarize below.
1. The March 7, 2014 Hearing
During the first hearing, the trial court immediately expressed concerns about several aspects of the settlement. The court stated that the LLCs' assets "can be dissipated" while the investor actions were stayed, leaving them with "thin air to go against." Respondents' counsel, Val Hornstein, added that his clients would be left with "an unsecured promise by crooks" to try to make a 70 percent return to his clients while they maintained control of the LLCs' properties. The trial court responded, "I'm very queazy [sic] about it, going along with this. I think the State is in it, and that was highly persuasive. It could be highly persuasive to the Court to approve it." The trial court went on to voice concerns about the promoters managing the properties, referring to this as a "fox in the hen house problem," and positing whether it would be better to appoint a receiver. The DBO's counsel, Edward Shinnick, responded that although the DBO "take[s] no position" on the "LLCs' [being] managed by the bad guys," a receivership would add expenses for the investors, so it was more economical for the special master to oversee the promoters.
The court also questioned Mr. Hornstein about whether his clients would receive an unequal share of the proceeds relative to the other investors if the individual actions moved forward. During this discussion, the trial court observed, "There could be a class action here. ... Somebody could have filed a class action." Mr. Hornstein responded, "It could have been, but that's not the case." Mr. Hornstein went on to argue that the settlement agreement "overrides [his clients'] private contract rights, and that cannot be done constitutionally either. ... [I]t makes my clients involuntary partners with crooks. They have a right to rescind those contracts. The Department is not
The trial court later commented, "I'll tell you what I'm concerned about. It's the fox in the hen house kind of thing that concerns me, and also no one has addressed the Constitutional issue that Mr. Hornstein has raised." In response, Mr. Shinnick
2. The April 4, 2014 Hearing
During early remarks at the second hearing, the trial court stated that it was "not inclined to grant the modification of the interlocutory judgment in the present form that it has taken" and questioned why it would not be viable to allow the lawsuits to go forward against the promoters. The trial court also questioned the limited nature of the special master's powers. "He's supposed to see that ... the promoters, who would still be in charge and have the key, don't loot Investco. And that's about all the power he has. ... And it's left up to the promoters to run the show. You know, I mean, here the State took this extraordinary action, closed them down- ... took them over, and the same people are going to run the show. I mean, there's a disconnect there, and I don't get it."
The trial court also recognized that because the DBO action was not a class action on behalf of the investors, there was no reason to provide investors with the ability to opt out. Mr. Hornstein responded, "the due process issue here ... is that ... you cannot bind non-parties to a settlement agreement." After Mr. Hornstein called the DBO action an "attempt to craft a class action settlement without due process rights," the trial court responded, "They didn't. ... But I still will tell you there's an equity issue."
The trial court continued to question Mr. Hornstein on whether his clients' actions could harm the interests of the other investors. The court further commented, "I may send you back to the drawing board, but in the present form of this, I find it very hard to approve. That's not saying that there might be something I'd approve, but it's pretty obvious that I am highly reluctant to approve this."
The trial court again raised concerns over the lack of notice to the investors, saying "there is a due process issue here. I don't know why people
The trial court once again raised the option of appointing a receiver and commented that "no one has ever told me how expensive it would be, why is that not appropriate." Mr. Sparer explained that "the thinking about keeping the promoters in was that part of the settlement was that they were guaranteeing that they would be liable for shortfalls that occurred in returning investors their money. [¶] So the idea was to incentivize them to put in
At the end of the hearing, the trial court directed the DBO to submit further briefing regarding a new plan for management of the two LLCs' properties as well as a summary of the financial history.
3. The May 19, 2014 Hearing
At the third and final hearing on the motion, the trial court reiterated its concerns that respondents would "step in front of" the other investors. Mr. Hornstein continued to attack the settlement agreement and the lack of notice to the investors, leading the trial court to comment, "This should have been a class action." The trial court also expressed concerns about "cutting off [the investors'] rights to sue."
The trial court also stated that the DBO's further briefing was sort of the same recital and that the court still did not "know what the financial situation of the promotors is. You know, I did look at some of these cost figures, and what they paid for this land, and then what they sold it to the LLCs for. So I mean, they made some serious money there. Where is it?"
The trial court also continued to attack the unsecured promise of a 70 percent return. "This is illusory, sir. It's illusory, Counsel. We don't know, we
In the end, the trial court stayed respondents' actions as to the Investco AV LLCs, but allowed their actions against Investco M&D and the promoters to continue. The court further held that the special master would obtain full management and control of the LLCs and would make the final determination of when to liquidate them. On July 9, 2014, the court issued its final order granting in part and denying in part the moving defendants' motion to modify. The court also entered the amended interlocutory judgment and amended order appointing Mr. Donell special master.
B. Respondents' Motion for Attorney Fees
Respondents moved for attorney fees against the moving defendants and the DBO jointly and severally under section 1021.5. Respondents argued that through their efforts opposing the motion to modify, they obtained the right to immediately institute private litigation against Investco M&D and the promoters, removal of the promoters from any role in managing or operating the Investco AV LLCs and their properties or funds, a significant expansion in the special master's role such that he solely manages and operates the Investco AV LLCs, and an order tolling relevant statutes of limitation and/or repose.
At the September 9, 2014 hearing on the matter, the trial court stated: "I think [the investors] are in a safer position with the removal of the promotors. I feel that the result with the expanded powers of the Special Master was a good result. [¶] I think the alternative, the only alternative,
Notably, the trial court stated the fee award would not be against the DOB. In response, Mr. Hornstein argued that it was because the DBO "joined with the defendants to shield the promotors" that private enforcement was necessary, and the DBO was responsible for the insufficient protections in the original settlement. Mr. Shinnick responded that the DBO joined in the motion to protect the settlement and increase the likelihood of maximizing recovery, but the court responded, "That was your leitmotif in this whole thing. [¶] ... [¶] ... I just disagreed with you all the way in your approach on this. I thought it was a recipe for disaster to have the promotors in charge of this." The trial court also mused as to whether "there's an opening here that if somehow that's not paid, then maybe the State should have to back them up. I don't know if I can do that."
The docket entry immediately following the September 9th hearing indicated that the motion for attorney fees was "granted against the promoters but not against the State." However, the September 24, 2014 order prepared by the court stated that attorney fees in the amount of $149,500 were payable "jointly and severally" by the DOB and the moving defendants. The order further held that the following benefits were achieved: "Preservation of the right of investors to bring lawsuits against the defendant promoters [from] ... removing defendant promoters from financial and management control of the LLCs holding the real estate which was the subject of the fraudulent sales; expanded powers of a Special Master including management of the LLCs; Court supervision of the Amended Interlocutory Judgment; tolling of [the statute of] limitations for investors; and, avoiding the necessity of a lengthy and expensive class action lawsuit." The court further found "the necessity for private enforcement inasmuch as reliance on public enforcement, as structured prior to the intervention, would not have resulted in the enumerated benefits to the class" and that the fee award "is justified because the financial burden of private enforcement would have prevented intervention by the Interested Parties and other investors."
C. Appeal
On October 8, 2014, the DBO filed a timely notice of appeal. ( Apex LLC v. Korusfood.com (2013)
Code of Civil Procedure "[s]ection 1021.5 codifies California's version of the private attorney general doctrine, which is an exception to the usual rule that each party bears its own attorney fees. [Citation.] The purpose of the doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases. [Citation.]" ( Robinson v. City of Chowchilla (2011)
The statutory language of section 1021.5"can be divided into the following separate elements. A superior court may award attorney fees to (1) a successful party in any action (2) that has resulted in the enforcement of an important right affecting the public interest if (3) a significant benefit has been conferred on the general public or a large class of persons, (4) private enforcement is necessary because no public entity or official pursued enforcement or litigation, (5) the financial burden of private enforcement is such as to make a fee award appropriate, and (6) in the interests of justice the fees should not be paid out of the recovery." ( Robinson , supra ,
A. Standard of Review
" 'On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion.' " ( McGuigan v. City of San Diego (2010)
The DBO and appealing defendants (collectively appellants) argue that de novo review is appropriate because the pertinent facts are undisputed and the issue on appeal is simply whether each element under section 1021.5 is met. We disagree, because the trial court resolved disputed contentions based on the facts and evidence before it to reach its decision. For instance, it found the investors were ultimately better off with a receivership rather than allowing the promoters
Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010)
B. Successful Parties in an Action
A successful party is one who " ' "succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." ' [Citation.]" (
Appellants argue that because respondents did not formally intervene in the DBO action, they are not entitled to section 1021.5 attorney fees. Appellants cite our decision in Savaglio v. Wal-Mart Stores, Inc. (2007)
Furthermore, unlike the newspaper's success on the motion to unseal in Savaglio , respondents' success was not "ancillary" or "entirely unrelated to the objective of the lawsuit." ( Savaglio , supra ,
Appellants also rely on Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Markets, Inc. (2005)
We disagree with these points. Respondents successfully opposed a motion that would have completely stayed their respective individual actions. Comparing the situations before and after they took private action (see Folsom , supra ,
The trial court did not, as appellants contend, reject respondents' due process and constitutional arguments. Rather, the court repeatedly stated its concerns about due process, notice to the investors, and "cutting off their rights to sue." The court took these issues seriously, if not as a strict constitutional problem, then as an issue of fundamental fairness or "an equity issue" because, as Mr. Hornstein argued, the settlement agreement and proposed
The "fox in the hen house" concern that appellants credit solely to the trial court was first discussed in respondents' opposition brief. Respondents specifically argued that it was unfair to allow the promoters to remain in control of the underlying properties and to replace the investors' right to
In its reply brief, the DBO argues that respondents cannot obtain fees because they failed to provide the DBO with prelitigation notice and an opportunity to settle the dispute. Besides improperly raising this argument for the first time in its reply brief, the DBO erroneously presumes that respondents seek attorney fees under a "catalyst theory." Under this theory, fees may be awarded "even when litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation." ( Graham , supra ,
C. The DBO Was an Opposing Party
"[O]nly an opposing party can be liable for attorney fees under section 1021.5." ( Connerly v. State Personnel Bd. (2006)
The DBO argues it was not an opposing party because it merely filed a joinder in the motion to modify, did not file a reply brief after respondents specially appeared, and simply sought the court's guidance, without taking a position adverse to respondents. The DBO cites Wal-Mart Real Estate Business Trust v. City Council of San Marcos (2005)
In contrast, the DBO filed a written joinder that not only adopted the request, arguments, and supporting documents filed by the moving defendants, but included additional arguments and legal authorities in support. Practically speaking, the DBO, in advocating a stay of all investor actions, took a legal position adverse to respondents. Thereafter, the DBO was actively involved in oral argument at all three hearings. Even if the DBO's dialogue with the court could be characterized as seeking the court's guidance, this posture developed after the court expressed reservations about granting the motion and pressed all of the participants for alternative ideas. The DBO's initial position was fully in favor of the motion being granted, and its efforts to modify the settlement in a way that satisfied the court's concerns was necessary to avoid a complete loss. As the trial court stated, "If this is take-it-or-leave-it, I'm not going to take it." Although the DBO submits that its motive was always to protect all of the investors-a "leitmotif" that the trial court disagreed with-the DBO still acted on that motive in a manner that was adverse to the position of respondents in the procedural and factual context of the motion to modify.
Citing Nestande , supra ,
Finally, the DBO argues that to the extent the trial court awarded attorney fees against the DBO to "back [the promoters] up" in the event of bankruptcy, this was improper. However, we will assume the DBO was included in the final order because the statutory bases for the award of section 1021.5 fees were satisfied, not based on the trial court's offhand comment.
D. Enforcement of an Important Right Affecting the Public Interest
Section 1021.5 permits a fee award " ' " 'in any action which has resulted in the enforcement of an important right affecting the public interest ' regardless of its source-constitutional, statutory or other." [Citation.]' " ( Weiss , supra ,
The general purpose of the CSL is to protect the public against the imposition of unsubstantial, unlawful and fraudulent stock and investment schemes and the securities based thereon. ( People v. Rankin (1958)
The DBO argues that respondents did not enforce any such rights in relation to the DBO because the only CSL violations at issue were those of the moving defendants. However, as discussed above, the DBO was an "opposing party" in this context because it stood on opposite sides of respondents in the context of the motion to modify. During these proceedings, the trial court took seriously the concerns raised by
Consumer Cause and Karuk Tribe are distinguishable in that they involved procedural successes that did not result in any substantive changes. In Karuk Tribe , the fee claimants simply obtained a court order requiring a regional water quality control board to provide an "augmented explanation" on the same decision it had previously made. ( Karuk Tribe , supra ,
E. Significant Benefit to the General Public or Large Class of Persons
"[T]he 'significant benefit' that will justify an attorney fee award need not represent a 'tangible' asset or a 'concrete' gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy." ( Woodland Hills , supra ,
The record supports the trial court's finding that significant benefits resulted to a large class of persons and the public. These benefits included: the removal of the promoters from management and control of the LLCs, the expansion of the special master's powers, the preservation of the investors' rights to sue the promoters, and the deterrent effect or "cautionary message" to other promoters of similar securities. (See Sokolow v. County of San Mateo (1989)
Appellants argue that the special master's expanded powers do not confer a significant benefit to the investors because each investor is now expected to receive a lower return than they otherwise would have received under the original interlocutory judgment. In appellants' view, the promoters had more of an incentive than the special master to sell the property at the highest price because the promoters were not compensated for their efforts and wanted to avoid personal liability. However, appellants cite no evidence in the record supporting the conclusion that the investors will receive a lower return under a receivership, and we see nothing unreasonable in the trial court's contrary
Appellants argue that allowing investor actions to proceed against the promoters is not a significant benefit because it only benefits respondents. Even so, we conclude the other investor protections would sufficiently support the significant benefit element.
Finally, appellants argue that respondents deserve no credit for avoiding class action litigation when it was their counsel who suggested turning respondents' actions into a class action. We disagree with this characterization of the discussion. Throughout the hearings, the trial court repeatedly commented that there should have been a class action and referred to the class action option as a "fallback" if a better solution could not be reached. Mr. Hornstein's suggestion to amend his clients' actions into a class action on behalf of all investors was made in the course of this discussion. The trial court reasonably concluded that its ruling adequately preserved the rights of the investors while avoiding the "tremendous amount of litigation" in proceeding as a class action, thereby conferring a net benefit to the investors as a whole.
We conclude the trial court did not abuse its discretion in finding that respondents' efforts conferred a significant benefit on a large group of people and the public.
F. Necessity of Private Enforcement
The necessity of private enforcement "factor ' "looks to the adequacy of public enforcement and seeks economic equalization of representation in cases where private enforcement is necessary." ' [Citation.]" ( Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991)
Appellants argue that respondents' special appearance was not necessary because the DBO had already sued to stop the CSL violations, obtained a preliminary injunction, and negotiated the settlement and appointment of the special master. However, the necessity element is not lacking simply because a private party and public entity co-litigate against a common private defendant. (See Committee to Defend Reproductive Rights , supra ,
G. Financial Burden of Private Enforcement
" ' "An award on the 'private attorney general' theory is appropriate when the cost of the claimant's legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff 'out of proportion to his individual stake in the matter.' [Citation.]" ' [Citation.] 'This requirement focuses on the financial burdens and incentives involved in bringing the lawsuit.' [Citation.]" ( Conservatorship of Whitley (2010)
The trial court concluded that the attorney fee award of $149,500 was justified because the financial burden of private enforcement would have prevented intervention by respondents and other investors. Implied in this conclusion is the finding that the litigation costs transcended any personal interests or financial incentives that respondents may have had in specially appearing.
On appeal, appellants argue that respondents were not entitled to section 1021.5 attorney fees because any benefit they achieved for other investors was merely coincidental to their expected personal monetary gain in their individual actions
The absence of a monetary award is not, by itself, dispositive of whether there is a sufficient financial incentive to justify litigation in economic terms. This principle was illustrated in Millview County Water Dist. v. State Water Resources Control Bd. (2016)
Specifically as to Hill and Gomes, the Millview court held their financial incentive was "unmistakable" because "[i]f the proposed CDO was endorsed by the Board, they would be limited to retaining the down payment under the purchase agreement, forfeiting the portion of the purchase price that was due if no governmental order was entered limiting diversion under the [water rights] claim. ... Defeating entry of the proposed CDO had the potential to earn them as much as an additional $1.6 million under the purchase agreement." ( Millview , supra ,
Millview relied on Summit Media , supra ,
In Beach Colony II v. California Coastal Com. (1985)
In these cases, the prevailing plaintiffs had sufficient financial incentives to warrant their decisions to incur litigation costs, despite the absence of a monetary award, because the failure to litigate would have resulted in losses of money or value to their assets or investments. The instant matter is distinguishable. Respondents did not avoid any loss of money or value to their assets or investments by specially appearing in the DBO action, and there were no benefits that "immediately and directly translated into" economic terms for respondents as a result of their success. ( Beach Colony II , supra ,
Appellants argue that respondents had a financial incentive to oppose the stay because it would have postponed their expected recovery. This is not a disqualifying interest for purposes of section 1021.5. Where personal benefits are a step removed from the results of the litigation, the potential financial benefit is indirect and speculative, and thus, a trial court does not abuse its discretion in concluding that the financial burden criterion is satisfied for purposes of section 1021.5. (See Heron Bay , supra , 19 Cal.App.5th at pp. 394-395,
In Heron Bay , a homeowners association (HOA) and its members successfully challenged the City of San Leandro's decision to allow a wind turbine maker (Halus Power) to construct a wind turbine on its property. In affirming the award of
Likewise, respondents neither expected nor received any direct pecuniary benefit from their special appearance, and any anticipated recovery in their individual actions is still at least once removed, because the trial court's ruling on the motion to modify did not guarantee them any future recovery. Respondents must still prevail on the merits in their individual actions in order to obtain the pecuniary benefits sought in their complaints. Thus, the amount or value of any personal benefit to respondents is speculative. Respondents are not "cut off from the benefits of section 1021.5 because they pursued litigation that ' "might someday help them ... secure their [financial] interests." ' [Citations.]" ( Heron Bay , supra ,
Accordingly, we conclude the trial court did not abuse its discretion in finding that respondents satisfied the financial burden criterion of section 1021.5.
H. Corporations Code Section 25530, Subdivision (a) Does Not Immunize the DBO from an Award of Attorney Fees
The DBO argues it is immune from an award of attorney fees under Corporations Code section 25530, subdivision (a). This statute provides in relevant part: "No action at law or in equity may be maintained by any party against the commissioner, or a receiver, monitor, conservator, or other designated fiduciary or officer of the court, by reason of their exercising these powers or performing these duties pursuant to the order of, or with the approval of, the superior court." ( Corp. Code, § 25530, subd. (a).) Based on the statute's plain language, however, we find it simply does not apply to the instant matter because respondents did not maintain an action against the DBO.
The order awarding respondents attorney fees is affirmed. Respondents shall recover their costs on appeal.
We concur:
STREETER, ACTING P.J.
SCHULMAN, J.
Notes
The DBO's request for judicial notice of respondents' complaints is granted. (Evid. Code, § 452, subd. (d).) The complaints largely mirror one another, with the main difference being the named defendants. In Agasaveeran's complaint, the defendants are Investco M&D, the promoters, Investco AV20 and AV21, and Skyfusion AV18 LLC, while the defendants in Bryant's complaint are Investco M&D, the promoters, Investco AV21, Dareld Phillips, Sr., and Bonnie Phillips.
The sixth element is not applicable here because only injunctive relief was obtained.
This rule allows a "member of the public" to move to unseal a record. (Cal. Rules of Court, rule 2.551(h)(2).)
The DBO argues for the first time in its reply brief that we should grant a reasonable offset for the DBO's role in obtaining the amended orders so that respondents will not be compensated for results they did not seek. The DBO has waived this particular argument because it was not raised in the proceedings below or in appellants' opening briefs. (Children's Hospital & Medical Center v. Bontá (2002)
In Whitley , the Supreme Court discussed "[t]he method for weighing costs and benefits ... illustrated in Los Angeles Police Protective League v. City of Los Angeles (1986)
This figure is based on allegations in respondents' complaints that Agasaveeran purchased securities in the total amount of $375,000, and Bryant purchased securities in the amount of $100,000.
While respondents' special appearance also brought to light concerns that the promoters might loot or mismanage the LLCs, any avoidance of investment loss in this sense was not personal to respondents. As we discussed in section III., E., ante , the additional investor protections constituted a significant benefit to all of the investors.
Because we find the statute's language to be unambiguous, we deny respondents' request for judicial notice of various materials pertaining to the legislative history of Corporations Code section 25530 as not relevant to a material issue in this case. (Moraga-Orinda Fire Protection Dist. v. Weir (2004)
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.