McPherson v. Southard CA4/3

Filed 8/14/23 McPherson v. Southard CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

BONITA M. MCPHERSON,

Plaintiff and Respondent, G060614

v. (Super. Ct. No. 30-2018-00964601)

DONALD L. SOUTHARD et al., OPINION

Defendants and Appellants.

Appeal from a judgment of the Superior Court of Orange County, Frederick P. Horn, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Dismissed. Ulwelling Law, James K. Ulwelling and Lauren E. Saint for Defendants and Appellants. Martorell Law, Eduardo Martorell and JoAnn Victor for Plaintiff and Respondent. * * *

1 Plaintiff Bonita M. McPherson (Bonita ) filed this shareholder derivative action on behalf of Western Tap Manufacturing Company, Inc. (Western Tap), asserting claims against corporate officers and controlling shareholders Donald L. Southard (Don), Lynn Southard (Lynn), and Robert McPherson (Defendants) for breach of fiduciary duty, unfair business practices, unjust enrichment, abuse of control, corporate waste, and for an accounting. Following a bench trial, the trial court entered a judgment in favor of Bonita and against Defendants on all causes of action. The judgment anticipated additional action by the parties and the trial court: (1) on Bonita’s accounting cause of action, it required Defendants and Western Tap “to turn over all financial records associated with Western Tap in their possession, custody or control”; (2) within 45 days of that production, it ordered the parties “to meet and confer and attempt to come to an agreement on the amounts that [Defendants] are to reimburse Western Tap for unauthorized distributions of money and unauthorized payments of their personal expenses”; (3) if the parties were unable to agree on what amounts should be reimbursed, the court would “appoint a receiver under California Code of Civil Procedure section 564 to address a determination regarding the amounts that [Defendants] are to reimburse Western Tap for unauthorized distributions of money and unauthorized payments of their personal expenses”; (4) on Bonita’s claims for usurped corporate opportunity concerning the purchase of real property (the Dale Street property), the judgment ordered the parties to either (a) turn over the Dale Street property to Western Tap, subject to repayment of certain expenses, or (b) submit a joint plan to sell the Dale Street property; and (5) the judgment specified that if the parties failed to accomplish either option within 30 days, the court would appoint a receiver on Bonita’s request “to address the disposition of the Dale Street property.” Citing “the nature and scope of post