| Case | County / Judge | Motion | Ruling | Indexed | Hearing |
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Defendant John Mayer’s Motion for Consolidation
Matthew Arcoleo v. John Mayer
Defendant John Mayer’s Motion for Consolidation
Hearing Date: May 15, 2026
PARTIES TO APPEAR to discuss next steps in light of this Tentative Ruling.
Consolidation.
The motion of Defendant John Mayer to consolidate this case (“Arcoleo”) with Mayer v. Arcoleo, Monterey County Superior Court, Case No. 25CV005325 (“Mayer”) is GRANTED. Mr. Mayer has met the procedural requirements for consolidation. [Cal. Rules of Ct., rule 3.350.] Additionally, as outlined in the Declaration of Daniel Levinson, there are common questions of law and fact between Arcoleo and Mayer. [Levinson Decl. at ¶¶ 3-8; Code Civ. Proc. § 1048.] Consolidation of these two actions promotes efficiency and helps prevent inconsistent rulings. [Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-979.] The Court will sign the Proposed Order accompanying the motion
Order to Show Cause re: Appointment of a Provisional Director.
The Court is tentatively inclined to order the parties to show cause (“OSC”) why it should not appoint a provisional director to the Board of Directors of Discovery Charters, Inc. (“DCI”).
Plaintiff Matthew Arcoleo did not oppose consolidation because doing so “presents the opportunity to address” several issues between the parties in “one forum and allow [DCI] protection from prejudice imposed by [Mr.] Mayer.” [Opp. at 2, 4-6.] Mr. Arcoleo suggests the following conditions and safeguards once the Court grants consolidation: (1) appointment of counsel to represent DCI and protect its interests in legal proceedings; (2) an Evidence Code section 403 preliminary hearing or other summary hearing to determine threshold issues on Mr. Mayer’s claims including his standing to be pursuing derivative claims on behalf of DCI while also prosecuting claims against DCI and defending claims DCI has against him; and (3) identification of the issues for appointment of a provisional director, candidates proposed for appointment and process for any appointment. [Opp. at 5-6.]
Mr. Mayer disagrees with Mr. Arcoleo’s suggestions. Instead, he urges the Court to follow the provisions in Corporations Code section 308 (“Section 308”), which allows the Court to appoint a provisional director when a deadlock exists on a corporate board of directors. In pertinent part, Section 308, subdivision (a), states:
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If a corporation has an even number of directors who are equally divided and cannot agree as to the management of its affairs, so that its business can no longer be conducted to advantage or so that there is danger that its property and business will be impaired or lost, the superior court of the proper county may, notwithstanding any provisions of the articles or bylaws and whether or not an action is pending for an involuntary winding up or dissolution of the corporation, appoint a provisional director pursuant to this section. Action for such appointment may be brought by any director or by the holders of not less than 331⁄3 percent of the voting power.
The provisional director must be an impartial person. [Corp. Code § 308, subd. (c).] They cannot be shareholders or creditors of DCI. [Ibid.] Nor can they be related to any director or court judge responsible for the appointment. [Ibid.] A provisional director retains all the rights and powers of a regular director until the deadlock on the board or among shareholders is resolved, or until the director is removed by court order or agreement of the outstanding shares. [Ibid.] “The provisional director thus acts as a ‘tie-breaker’ when a deadlock exists between an even number of directors.” [In re ANNRHON, Inc. (1993) 17 Cal.App.4th 742, 751.]
The provisional director does not have the authority to override a board decision and does not assume full management responsibility from the owners. [Ibid.] Once it appoints a provisional director, the court does not need to specify the issues upon which the provisional director could vote. [Id. at 754.]
Having considered the parties’ positions, it appears more appropriate to resolve Mr. Mayer’s Section 308 petition for appointing a provisional director rather than appointing neutral counsel as part of the Motion to Consolidate. DCI’s Board of Directors can address Mr. Arcoleo’s other requests, such as the evidentiary hearing to determine Mr. Mayer’s standing and the issues involved. “The appointment of a provisional director is merely a method of resolving disagreements between directors when there are an even number of directors on a board. The statutory remedy is available in situations which have not yet reached the point that a receiver should or could be appointed.” [In re ANNRHON, 17 Cal.App.4th at 752 (internal quotes and citations omitted).]
PARTIES TO APPEAR to discuss the OSC hearing and briefing schedule. If the Court finds that such a provisional director should be appointed to DCI’s board, the parties, after meeting and conferring, should be prepared to identify at the hearing three candidates and provide information to allow the Court to assess each candidate’s qualifications. [See Corp. Code § 308, subd. (b).]
Conclusion.
Mr. Mayer’s motion to consolidate is GRANTED, and the Court will sign and date the Proposed Order accompanying the motion. Also, the parties are ordered to APPEAR at the May 15, 2026, hearing to discuss the Court’s OSC as to why it should not appoint a provisional director to DCI’s board. Mr. Mayer shall prepare the OSC.
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