California Court of Appeal Sep 21, 2015 No. D066054Unpublished
Filed 9/21/15 Eng v. B.L.E. Fish CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
FRANKLIN ENG, D066054
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2011-00102213-CU-MC-CTL) B.L.E. FISH, INC.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County, Katherine A.
Bacal, Judge. Dismissed.
Fischbach & Fischbach and Zachariah E. Moura for Plaintiff and Appellant.
Blanchard, Krasner & French and Thomas L. Gotfredson for Defendant and
Respondent.
Plaintiff Franklin Eng appeals an order granting his motion to strike the amended
answer filed, purportedly by special appearance, by B.L.E. Fish, Inc. (Fish Corp.) in his
action arising out of alleged misappropriation of funds and other wrongful conduct by the
managers of the Tin Fish restaurant in San Diego. On appeal, Eng contends the trial
court, in granting his motion, erred by also dismissing Fish Corp. with prejudice from the
action. However, because we conclude the court's order did not take that purported
action and its order granting the motion to strike is not an appealable order, we dismiss
In 2011, Eng filed a complaint against Michael Patrick Brown, Jerry Levy, Fish
Corp. (doing business as the Tin Fish Gas Lamp), and unnamed Doe defendants. The
complaint alleged that in 2006 Eng, Brown, and Levy entered into an oral joint venture
agreement to acquire and operate a restaurant and bar in San Diego known as the Tin Fish
Gas Lamp. They allegedly agreed that Brown and Levy would be the day-to-day
operators and managers of the restaurant and receive a management fee of three percent
of gross sales. Brown would receive a 57 percent interest in the joint venture, Levy a 33
percent interest, and Eng a 10 percent interest. They allegedly agreed the joint venture
would own a corporation that would own the restaurant to limit their liability. They
allegedly agreed not to receive salaries, but instead would take distributions on a
quarterly basis, depending on cash flow. The complaint alleged that since late 2010 the
defendants had refused to distribute any monies to Eng despite the restaurant's success.
The first cause of action against all defendants sought the dissolution of the partnership,
an accounting, and the appointment of a receiver. The second cause of action against all
defendants sought damages for constructive fraud and/or breach of fiduciary duties. The
third cause of action against all defendants sought damages for conversion.
2
In 2012, Eng filed a first amended complaint against Brown, Levy, Fish Corp., and
unnamed Doe defendants, alleging the original three causes of action described above
and two additional causes of action. Its fourth cause of action alternatively sought the
involuntary dissolution and liquidation of Fish Corp. if it was found the joint venture or
partnership did not exist. Its fifth cause of action was an alternative shareholder
derivative action for breach of fiduciary duty if it was found Fish Corp., and not the joint
venture, had the right of action against Brown and Levy for their wrongful conduct.
After the filing of the first amended complaint, the trial court apparently sustained
a demurrer to the third cause of action and Eng voluntarily dismissed his fourth cause of
action.1 In April 2013, Eng filed a notice of errata purporting to remove Fish Corp. as a
named defendant in the caption of the first amended complaint. In July 2013, Eng filed a
request for dismissal, dismissing with prejudice Fish Corp., "as a DEFENDANT, only, in
the caption of the First Amended Complaint." On July 18, the court clerk signed and
entered that dismissal.
On August 23, the trial court (San Diego County Superior Court Judge William S.
Dato) heard Eng's demurrers to cross-complaints filed by Brown, Levy, and Fish Corp.,
and his motion to disqualify counsel for Fish Corp. The court sustained the demurrers
and denied the motion to disqualify counsel. In its minute order, the court stated:
1 Although the parties do not cite to documents in the record on appeal showing those actions, they represent to this court those actions were, in fact, taken. Accordingly, for purposes of this appeal, we presume those actions were taken.
3
"In light of the corrections to [Eng's] first amended complaint dismissing the corporation [i.e., Fish Corp.] as anything other than a nominal defendant, Fish Corp. is granted ten days leave to file an amended answer." (Italics added.)
Regarding the motion to disqualify Fish Corp.'s counsel, the court stated:
"[Eng] seeks to disqualify . . . counsel for Fish [Corp.] on grounds that by filing a demurrer, answer, and cross-complaint, [it] has improperly taken sides in the derivative action against the interests of the corporation, which is the real party plaintiff on whose behalf the derivative claim is brought. As the court explained in Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 'a nominal defendant corporation generally may not defend a derivative action filed on its behalf.' [Citation.] The question in this case is whether it has improperly done so.
"The fundamental problem with [Eng's] argument is [he was the] plaintiff [who] created the perceived necessity for Fish Corp. to respond to the FAC. While a nominal corporate defendant may not generally defend against the merits of a derivative claim filed on its behalf, the FAC in this case did much more than name Fish Corp. as a nominal defendant. In addition to a somewhat confused derivative claim pled in the alternative, the FAC alleges four other causes of action against 'all defendants' including Fish Corp. [Fish Corp.'s counsel] on behalf of the corporation was required to respond to these claims and did so appropriately.
"Even the fifth (derivative) cause of action is inexplicably against 'all defendants' and incorporates by reference many prior allegations from the first three causes of action, making [Eng's] intent far from crystal clear. [Citation.] Since the filing of these motions, [Eng] has attempted to correct some of the confusion by submitting a Notice of Errata Re Plaintiff's First Amended Complaint and a request to dismiss Fish Corp. as a defendant. But this correction and dismissal, which the Court hereby approves and orders, does not retroactively invalidate [Fish Corp.'s counsel's] prior actions on behalf of Fish Corp. that were, at the time, reasonable and appropriate. To the extent [Fish Corp.'s counsel] should have clarified that Fish Corp.'s demurrer and answer were not intended to substantively challenge the derivative claim, any deficiency in the pleadings is technical and not a sufficient basis to warrant disqualification. In light of the corrections and resulting
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clarification, Fish Corp. may file an amended answer." (Italics added.)
On September 3, 2013, Fish Corp. filed, purportedly by special appearance, an
amended answer to the first amended complaint. Fish Corp. later filed an objection to the
proposed order submitted by Eng's counsel following the August 23 hearing. Eng then
filed his instant motion to strike Fish Corp.'s amended answer filed purportedly by
special appearance.
On November 1, 2013, the trial court issued a minute order to clarify its order
issued following the August 23 hearing, stating:
"The Court has reviewed [Fish Corp.'s] objection to the proposed order regarding the 8/23/13 ruling on the demurrers to Michael Brown, Jerry Levy, and [Fish Corp.'s] cross-complaint. The order submitted by [Eng's] counsel and signed by the Court on 9/3 is proper. The Court's 8/23 minute order notes that [Fish Corp.] is only a nominal defendant in the First Amended Complaint. That finding remains in effect even though it is not included in the subsequent order submitted by counsel. Nor is it appropriate to state that [Fish Corp.] is dismissed from the action with prejudice. [Eng's] request for dismissal requested [Fish Corp.] be dismissed as a defendant in the caption of the FAC. Consequently, as noted in the 8/23 minute order, [Fish Corp.] is only a nominal defendant." (Italics added.)
On April 18, 2014, the trial court (San Diego County Superior Court Judge
Katherine Bacal) heard Eng's motion to strike Fish Corp.'s amended answer. At that
hearing, the court noted it had reviewed Judge Dato's previous order that found Fish
Corp. had been dismissed with prejudice, except to the extent it is a nominal defendant.
The court stated it did not believe it was necessary for Fish Corp. to file an answer. The
court stated: "I do have the prior rulings of Judge Dato indicating that [Fish Corp.] is at
5
best a nominal defendant. I would leave it at that." The court's minute order stated it
granted Eng's motion to strike Fish Corp.'s amended answer. It explained: "Given [Eng's]
dismissal of the corporate defendant, the Court finds the filing of an answer by [Fish
Corp.] to be irrelevant and mere surplusage." After quoting an excerpt from Judge Dato's
August 23, 2013, ruling, the court stated: "Thus, even though [Fish Corp.] was dismissed
as a named defendant, it was expressly permitted leave to file an Amended Answer to the
extent it may remain involved as a 'nominal defendant.' " Regarding Eng's instant motion
to strike Fish Corp.'s amended answer, the court stated: "Given [Eng's] motion to strike
this Answer and [Fish Corp.'s] objection to filing an answer, it appears the parties are in
agreement that [Fish Corp.] is not required to file an answer. The Court agrees with both
parties." The court granted Eng's motion to strike Fish Corp.'s amended answer.
On April 28, 2014, the trial court issued its written order granting Eng's motion to
strike Fish Corp.'s amended answer, purportedly filed by special appearance. In addition
to granting Eng's motion to strike, the court further ordered that Fish Corp., "having been
dismissed from this action with prejudice, need not file an Answer to [Eng's] First
Amended Complaint nor take part in any further proceedings in this matter." Eng timely
filed a notice of appeal challenging the court's April 28, 2014, order.
DISCUSSION
I
April 28, 2014, Order
Eng's appeal apparently challenges only language in the trial court's April 28,
2014, order that purportedly dismissed Fish Corp. with prejudice from the action. He
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argues the court should have retained Fish Corp.'s involvement in the action as a nominal
defendant to his derivative cause of action. However, as we discuss below, Eng
misinterprets the language of the April 28, 2014, order, and his argument is based on a
faulty premise.
A
In April 2013, Eng filed a notice of errata removing Fish Corp. as a named
defendant in the caption of the first amended complaint. In July 2013, he filed a request
for dismissal, dismissing with prejudice Fish Corp., "as a DEFENDANT, only, in the
caption of the First Amended Complaint." In his August 28, 2013, minute order, Judge
Dato recognized that those actions by Eng had the effect of removing Fish Corp. from the
action "as anything other than a nominal defendant." (Italics added.) He then approved
Eng's actions and ordered Fish Corp. be dismissed from the action, except to the extent it
is a nominal defendant in his derivative cause of action. On November 1, Judge Dato
issued a minute order clarifying his August 23 minute order, stating in part:
"The Court's 8/23 minute order notes that [Fish Corp.] is only a nominal defendant in the First Amended Complaint. That finding remains in effect even though it is not included in the subsequent order submitted by counsel. Nor is it appropriate to state that [Fish Corp.] is dismissed from the action with prejudice. [Eng's] request for dismissal requested [Fish Corp.] be dismissed as a defendant in the caption of the FAC. Consequently, as noted in the 8/23 minute order, [Fish Corp.] is only a nominal defendant." (Italics added.)
B
To the extent the parties to this appeal are confused regarding Fish Corp.'s status
in this action as a nominal defendant to Eng's derivative cause of action, we briefly
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discuss shareholder derivative actions and a corporation's relationship to that action.
When management of a corporation fails to properly enforce all claims a corporation may
have, the corporation's shareholders have the right to enforce those claims on its behalf.
(Jones v. H.F. Ahmanson & Co. (1969) 1 Cal.3d 93, 107.) "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 (Grosset).) A shareholder who files a derivative action on behalf of a corporation is
merely a nominal party plaintiff because the corporation is the ultimate beneficiary of
that action. (Klopstock v. Superior Court (1941) 17 Cal.2d 13, 21.) "The corporation . . .
[is] the real party plaintiff in the action." (Russell v. Weyand (1935) 5 Cal.App.2d 259,
260.)
"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.' [Citation.] The corporation must be joined because
'its rights, not those of the nominal plaintiff, are to be litigated . . .' [citation], and to offer
the real defendants res judicata protection from later suits. [Citation.] 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 . . . .' "
section 904.1, subdivision (a)(2) through (13), sets forth those orders that are appealable
(e.g., postjudgment orders). However, that statute does not list an order granting a
motion to strike an answer. (Code Civ. Proc., § 904.1, subd. (a)(2)-(13).) "Ordinarily an
order striking an answer is not appealable, since appeal lies from the subsequent
judgment against the party whose answer was stricken." (Administrative Management
Services, Inc. v. Fidelity & Deposit Co. (1982) 129 Cal.App.3d 484, 489; see also Reese
v. Administrative Committee (1963) 218 Cal.App.2d 646, 649 [no appeal lies from order
granting motion to strike portions of defendant's answer]; cf. W.A. Rose Co. v. Municipal
Court (1959) 176 Cal.App.2d 67, 74 ["An order granting or denying a motion to strike a
pleading is not appealable."].)
2 Also, to the extent the order referred to past actions in the lawsuit that purportedly "dismissed with prejudice" Fish Corp. from the action, the order itself did not take any action dismissing Fish Corp. Rather, as discussed above, it incompletely and inaccurately described past actions in the lawsuit.
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Because the April 28, 2014, order granting Eng's motion to strike Fish Corp.'s
amended answer is not a final judgment and is not an appealable order, we dismiss the
appeal.
DISPOSITION
The appeal is dismissed. The parties shall bear their own costs on appeal.
McDONALD, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
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AI Brief
AI-generated · verify before citing
Holding. The court dismissed the appeal because an order granting a motion to strike an answer is not an appealable order, and the trial court's order did not effectively dismiss the corporation as a nominal defendant.
Issues
Whether an order granting a motion to strike an answer is an appealable order.
Whether the trial court's order effectively dismissed the corporation as a nominal defendant in a derivative action.
Disposition. Dismissed.
Quotations verified verbatim against the opinion
“Ordinarily an order striking an answer is not appealable, since appeal lies from the subsequent judgment against the party whose answer was stricken.”
“Because the April 28, 2014, order granting Eng's motion to strike Fish Corp.'s amended answer is not a final judgment and is not an appealable order, we dismiss the appeal.”