Thursday, July 11, 2019
Court of Appeal:
By a MetNews Staff Writer
A San Bernardino Superior Court judge was off base in finding that a corporation was collaterally estopped from challenging the standing of a purported member of its board of directors to seek a meeting of the board to enact bylaws based on a finding by a judge, at an earlier point in time, that he was a member, the Fourth District Court of Appeal’s Div. Two has declared.
In an unpublished opinion issued Tuesday, the appeals court reversed a judgment by San Bernardino Superior Court Judge Donald R. Alvarez who granted relief to plaintiff Ashok Bitra pursuant to Corporations Code §9414 which provides, in part:
“If for any reason it is impractical or unduly difficult for any corporation to call or conduct a meeting of its members, delegates or directors...then the superior court...upon petition of a director, officer, delegate, or member, may order that such a meeting be called...in such a manner as the court finds fair and equitable under the circumstances.”
Previous Determination Irrelevant
The fact that Bitra was found in 2015, in a previous dispute over bylaws, to have been a member of the board when provisions were adopted in 2013, Justice Michael Raphael wrote, doesn’t preclude a finding that he later lost that status.
Raphael said that the validity of the adoption of post-litigation bylaws adopted in 2015—the subject of Bitra’s 2016 action, tried in 2017—”was not, and could not have been, litigated in the” case decided earlier. He added that the judge in the earlier proceeding “did not and could not have determined future membership status, so issue preclusion does not apply.”
The case is Bitra v. High Desert Gurudwara, E070387.
Alvarez on Dec. 27, 2005, received a public admonishment from the Commission on Judicial Performance for drunk-driving—he operated a motor vehicle with a blood-alcohol level of .14 percent— and failing to report his conviction to the commission.
Attracting press attention in 2010 was Alvarez’s decision, on a remand from the Court of Appeal, in trimming requested fees relating to the appeal in a private attorney general action. He expressed his view that a party on appeal, merely repackaging arguments presented in the trial court, is exaggerating the hours spent where they exceed those claimed to have been expended below.
Div. Two of the Fourth District said that “where the record affirmatively shows that the court reduced the number of allowable hours by more than half without taking into account fundamental differences between trial and appellate work, remand is necessary.”
A March 7, 2012 unreported decision by the Fourth District’s Div. Two reverses Alvarez’s decision capping attorney fees in a contingency case at 25 percent of the recovery supposedly based on a local rule, with the opinion declaring that “no local rule purports to set a 25 percent maximum contingency fee.” The opinion—which says Alvarez abused his discretion on refusing to award a contractually agreed upon 40 percent fee, amounting to $1.96 million—points to Alvarez having delegated to his clerk decision-making powers regarding fees.
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