Morris LATT and Pearl Latt, Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent, Sidney KAUFMAN, Real Party in Interest.
In this proceeding for mandate we decide a provisional director appointed pursuant to Corporations Code section 308 is in the performance of duties embraced in that position cloaked with judicial immunity against civil actions. We affirm the trial court's ruling and deny the petition.
Matchmaster Dyeing & Finishing, Inc. is a California corporation (“Matchmaster”). All of its shares are equally held by two families. The Latts own 50% and the Tenenblatts the remaining 50% through their corporation, Antex Knitting Mills (“Antex”). From its inception (1978) until January 1981, Matchmaster operated its highly profitable business of dyeing fabrics and had only two directors, petitioner Morris Latt and William Tenenblatt. The property upon which Matchmaster was located belonged equally to the Latts and the Tenenblatts who had jointly leased it on a renewal basis from year to year to Matchmaster.
The profits of Matchmaster were equally shared in all respects between the Latts and the Tenenblatts.1
The objective of the described legal background is made clearer by the fact that each of the families were engaged in the knitting business and/or selling of knitted fabrics on a competitive basis. The value of the arrangement to each as shown by the record was demonstrated by the fact that Matchmaster averaged a profit of approximately one million dollars per year.
Irreconcilable conflict between the two directors did not occur until the latter part of 1980. Latt petitioned respondent superior court to appoint a provisional director as authorized by Corporations Code section 308.2
On January 15, 1981, respondent court appointed retired Judge Sidney Kaufman, real party in interest (sometimes referred to as “RPI”), to be Matchmaster's provisional director. Compensation was fixed by the parties at $150 per hour. As a consequence of the appointment the conflict between the two families subsided until early 1983 but reblossomed on August 1, 1983, when by a vote of RPI and Tenenblatt, Latt was ousted from his position as president of Matchmaster.
On December 14, 1983, Matchmaster filed an action against Latt the contents of which are not before us. Latt cross-complained and alleged nine causes of action. The following are of interest in this proceeding: In his first cause of action Latt alleged wrongful discharge from the post of company president. The third cause of action alleged violation of Labor Code section 203, for failure to pay Latt accrued compensation. The fifth alleged that Kaufman had breached his fiduciary duty, principally by neither investigating nor acting against Tenenblatt's alleged conflict of interest. The seventh cause of action sought an accounting, and the eighth declaratory relief concerning the validity of an indemnity agreement executed by Latt, Tenenblatt and Matchmaster in favor of Kaufman which Latt seeks to rescind.3 In the eighth Latt seeks rescission of an indemnity agreement.
RPI demurred. On August 31, 1984, respondent court sustained the demurrer without leave to amend as to the seventh and eighth causes of action on the ground that the seventh failed to state a cause of action for an accounting and the eighth did not state one for declaratory relief. Regarding the first, third, and fifth causes of action, the court ruled in accordance with RPI's theory that he is protected by absolute quasi-judicial immunity from civil actions. Latt petitioned this court for a writ of mandate for nullification of respondent court's ruling.
The petition before us presented the new and novel question of whether a provisional director appointed to break a deadlock of a board of directors' acts as the alter ego of the judge who makes the appointment and is therefore clothed with quasi-judicial immunity.
No cases were cited on the specific facts at bench. We find none but those which we have examined 4 do persuade us a provisional director is entitled to absolute quasi-judicial immunity. Judge Dell ruled below:
“Kaufman's status as a retired judge and his means of compensation are irrelevant. What is relevant is that his service as a provisional director is as an arm of the court to resolve intra-corporate disputes in a quasi-judicial manner between equally matched and hostile blocs. The court cannot directly supervise and rule upon the day-to-day management of corporate affairs; the provisional director concept was developed for the precise sort of situation involving the Latts and the Tenenblatts. Absent a rule of immunity, there would be a chilling effect upon the ability of litigants in a case such as this to obtain the services of a qualified, impartial arbiter.”
The principle of judicial immunity is to protect judicial independence thus insuring an objective administration of justice. In Bradley v. Fisher (1872) 80 U.S. (13 Wall) 335, 347, 20 L.Ed. 646, the court notes the doctrine has “a deep root in the common law.” Bradley was defending John H. Suratt, accused of President Lincoln's murder. During the trial Bradley had been rude and insulting, and “had threatened the judge with personal chastisement.” (Id., at p. 344.) Fisher was the judge who presided over the trial. On the conclusion thereof Fisher ordered Bradley's name be stricken from the roll of attorneys practicing in his court. Bradley sued Fisher for damages, “ ‘by reason of the wilful, malicious, oppressive, and tyrannical acts and conduct’ of the defendant, whereby the plaintiff was deprived of his right to practice as an attorney in that court.” (Id., at p. 336.) The Supreme Court disallowed the action: “For it is a general principal of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful ․ Controversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings, are being constantly determined in those courts, in which there is great conflict in the evidence and great doubt as to the law which should govern their decision. It is this class of cases which impose upon the judge the severest labor, and often create in his mind a painful sense of responsibility. Yet it is precisely in this class of cases that the losing party feels most keenly the decision against him, and most readily accepts anything but the soundness of the decision in explanation of the action of the judge. Just in proportion to the strength of his convictions of the correctness of his own view of the case is he apt to complain of the judgment against him, and from complaints of the judgment to pass to the ascription of improper motives to the judge. When the controversy involves questions affecting large amounts of property or relates to a matter of general public concern, or touches the interests of numerous parties, the disappointment occasioned by an adverse decision, often finds vent in imputations of this character, and from the imperfection of human nature this is hardly a subject of wonder. If civil actions could be maintained in such cases against the judge, because the losing party should see fit to allege in his complaint that the acts of the judge were done with partiality, or maliciously, or corruptly, the protection essential to judicial independence would be entirely swept away.” (Id., at pp. 347–348.)
Case law as announced in Fisher has extended judicial immunity to non-judges, under the designation of “quasi-judicial immunity.” In the federal courts such non-judges include federal probation officers when submitting pre-sentencing report to judges (Spaulding v. Nielsen (5th Cir.1979) 599 F.2d 728); parole board members (Silver v. Dickson (9th Cir.1968) 403 F.2d 642); public defenders (Robinson v. Bergstrom (7th Cir.1978) 579 F.2d 401); federal prosecutors (Yaselli v. Goff (1927) 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395); and state prosecutors (Imbler v. Pachtman (1976) 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128). Decisions in California have granted quasi-judicial immunity to administrative law judges (Taylor v. Mitzel (1978) 82 Cal.App.3d 665, 147 Cal.Rptr. 323); court commissioners when performing judicial duties (Tagliavia v. County of Los Angeles (1980) 112 Cal.App.3d 759, 169 Cal.Rptr. 467); and in the recent well considered case, State Bar's Committee of Bar Examiners when investigating Bar applicants. (Greene v. Zank (1984) 158 Cal.App.3d 497, 204 Cal.Rptr. 770.) 5 The above cases teach that quasi-judicial immunity should be recognized or withheld based on the function being performed. The mere fact that those involved are arms of a court is not sufficient.
The statutory provisions empowering a court to appoint a provisional director were inspired to protect all the stockholders when because of a tie vote of its directors or other management impasse a stalemate existed within the normal and established operation of the corporation's business to its damage. (Corp.Code, § 308.) One who accepts such appointment has the single function and duty to vote with one of the 50–50 contending factions and thus create a majority to enable the corporation to function through its officers and other employed personnel.
Unlike a receiver a provisional director is not the operating boss of a corporation. Its board of directors has that responsibility.
In our opinion section 308 (see fn. 2) literally and inherently creates a judicial position to be filled by a delegate of a superior court judge when the party who seeks the relief embraced in the section petitions for relief according to its terms. The section refers to the court's appointee as “provisional director”; it could as well be called delegated judge, commissioner or court's representative. The appointment can be made only when the conditions of the statute have been met. Qualifications for the positions are substantially the same as those required for the exercise of judicial or quasi-judicial functions. The limit of the appointee's power is specifically circumscribed, as is the tenure of the office.
Section 308 of the Corporations Code does specifically characterize the nature of the duties to be performed. It appears that such duties are as judicial in all respects when performed by a provisional director as if they had been performed by the judge who appoints a delegate to do so. Experience has taught however, that once a corporation finds itself in an impasse such as was presented at bench upon the 308 application, other deadlocks or management impasses may follow. To cope with such situations a procedure was devised and amended with the passage of time to permit the court to save its time in the public interest and to delegate the judicial responsibility it would have been bound to assume. If there were no section 308, corporate stalemates could be settled if the adversary groups could agree upon a person to cast a deciding vote or make an accepted judgment. Experience has taught that such agreement is less workable than that provided by section 308. Generally one impasse engenders another. As illustrated at bench the litigants once their original dispute had been adjudicated by the provisional director could have requested his discharge.
The procedure for termination of the provisional director's tenure was not followed. To the contrary, the provisional director at bench and the payment of compensation by the hour demonstrate he was used in his capacity of provisional director as a tie breaker for approximately two and one-half years to the mutual satisfaction of the adversary parties. At that point there was a dispute with respect to the renewal of Matchmaster's lease. This disagreement was followed by other alleged wrongs which Latt claims injured the 50tockholders he represented. However, Latt did not nor did any 33% of the stockholders of Matchmaster seek the removal of RPI until months after the first disagreement on the lease and the alleged facts of the other causes of action against RPI were apparent. However, on June 26, 1984, a motion was made for RPI's removal as expressly provided by section 308. It was granted on the ground there was no longer a deadlock or an impasse. Logic and the cases cited above persuasively dictate that section 308 embraces such quasi-judicial immunity. It is patently unfair to burden a court's delegate (a provisional director) with civil liability for judicial acts performed for which a judge exercising the same functions could not be civilly liable.
We proceed to show that the legislative failure to expressly include immunity in section 308 does not exclude it.
Among the cases cited is that of Imbler v. Pachtman (1976) 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128, which we think is significantly on point. It construes a reconstruction statute with regard to civil rights which should have but does not grant judicial immunity to those persons whose activities necessary for the enforcement of such rights are “ * * * an integral part of the judicial process.” (Ibid., at p. 430, 96 S.Ct. at p. 995.)
Thus Powell, J. in speaking specifically of a statute which omitted an immunity grant said at p. 417, 96 S.Ct. at 988:
“Title 42 U.S.C. § 1983 provides that ‘[e]very person’ who acts under color of state law to deprive another of a constitutional right shall be answerable to that person in a suit for damages. The statute thus creates a species of tort liability that on its face admits of no immunities, and some have argued that it should be applied as stringently as it reads. But that view has not prevailed. [Fns. omitted.]
“This Court first considered the implications of the statute's literal sweep in Tenney v. Brandhove, 341 U.S. 367 [71 S.Ct. 783, 95 L.Ed. 1019] (1951). There it was claimed that members of a state legislative committee had called the plaintiff to appear before them, not for a proper legislative purpose, but to intimidate him into silence on certain matters of public concern, and thereby had deprived him of his constitutional rights. Because legislators in both England and this country had enjoyed absolute immunity for their official actions, Tenney squarely presented the issue of whether the Reconstruction Congress had intended to restrict the availability in § 1983 suits of those immunities which historically, and for reasons of public policy, had been accorded to various categories of officials. The Court concluded that immunities ‘well grounded in history and reason’ had not been abrogated ‘by covert inclusion in the general language’ of § 1983. 341 U.S., at 376 [71 S.Ct. at 788]. Regardless of any unworthy purpose animating their actions, legislators were held to enjoy under this statute their usual immunity when acting ‘in a field where legislators traditionally have power to act.’ Id., at 379 [71 S.Ct. at 789].
“The decision in Tenney established that § 1983 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them. Before today the Court has had occasion to consider the liability of several types of government officials in addition to legislators. The common-law absolute immunity of judges for ‘acts committed within their judicial jurisdiction,’ see Bradley v. Fisher, 13 Wall. 335 [20 L.Ed. 646] (1872), was found to be preserved under § 1983 in Pierson v. Ray, 386 U.S. 547, 554–555 [87 S.Ct. 1213, 1217–1218, 18 L.Ed.2d 288] (1967). 12 * * * * *. In Scheuer v. Rhodes, 416 U.S. 232 [94 S.Ct. 1683, 40 L.Ed.2d 90] (1974), we concluded that the Governor and other executive officials of a State had a qualified immunity that varied with ‘the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action․’ Id., at 247 [94 S.Ct. at 1692].14 Last Term in Wood v. Strickland, 420 U.S. 308 [95 S.Ct. 992, 43 L.Ed.2d 214] (1975), we held that school officials, in the context of imposing disciplinary penalties, were not liable so long as they could not reasonably have known that their action violated students' clearly established constitutional rights, and provided they did not act with malicious intention to cause constitutional or other injury. Id., at 322 [95 S.Ct. at 1000]; cf. O'Connor v. Donaldson, 422 U.S. 563, 577 [95 S.Ct. 2486, 2494, 45 L.Ed.2d 396] (1975). In Scheuer and in Wood, as in the two earlier cases, the considerations underlying the nature of the immunity of the respective officials in suits at common law led to essentially the same immunity under § 1983. [Fn. omitted.] See 420 U.S., at 318–321 [95 S.Ct. at 999–1000]; 416 U.S., at 239–247, and n. 4 [94 S.Ct. at 1687–1692, and n. 4].” (Imbler v. Pachtman, supra, 424 U.S. at pp. 417–419, 96 S.Ct. at pp. 988–990.)
“The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties.20 ” (Imbler v. Pachtman, supra, at pp. 422, 423, 96 S.Ct. at pp. 991, 992.)
“ ‘The office of public prosecutor is one which must be administered with courage and independence. Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict? To allow this would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction. There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case․ The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded and we would have moved away from the desired objective of stricter and fairer law enforcement.’ Pearson v. Reed, 6 Cal.App.2d 277, 287, 44 P.2d 592, 597 (1935).
“See also Yaselli v. Goff, 12 F.2d, at 404–406.
“The common-law rule of immunity is thus well settled. We now must determine whether the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity under § 1983. We think they do.
“If a prosecutor had only a qualified immunity, the threat of § 1983 suits would undermine performance of his duties no less than would the threat of common-law suits for malicious prosecution. A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate. Cf. Bradley v. Fisher, 13 Wall., at 348; Pierson v. Ray, 386 U.S., at 554, 87 S.Ct. at 1217. Further, if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.
“Moreover, suits that survived the pleadings would pose substantial danger of liability even to the honest prosecutor. The prosecutor's possible knowledge of a witness' falsehoods, the materiality of evidence not revealed to the defense, the propriety of a closing argument, and—ultimately in every case—the likelihood that prosecutorial misconduct so infected a trial as to deny due process, are typical of issues, with which judges struggle in actions for post-trial relief, sometimes to differing conclusions. The presentation of such issues in a § 1983 action often would require a virtual retrial of the criminal offense in a new forum, and the resolution of some technical issues by the lay jury. It is fair to say, we think, that the honest prosecutor would face greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials. Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials. Cf. Bradley v. Fisher, supra, 13 Wall at 349.
“The affording of only a qualified immunity to the prosecutor also could have an adverse effect upon the functioning of the criminal justice system. Attaining the system's goal of accurately determining guilt or innocence requires that both the prosecution and the defense have wide discretion in the conduct of the trial and the presentation of evidence. The veracity of witnesses in criminal cases frequently is subject to doubt before and after they testify, as is illustrated by the history of this case. If prosecutors were hampered in exercising their judgment as to the use of such witnesses by concern about resulting personal liability, the triers of fact in criminal cases often would be denied relevant evidence.
“The ultimate fairness of the operation of the system itself could be weakened by subjecting prosecutors to § 1983 liability. Various post-trial procedures are available to determine whether an accused has received a fair trial. These procedures include the remedial powers of the trial judge, appellate review, and state and federal post-conviction collateral remedies. In all of these the attention of the reviewing judge or tribunal is focused primarily on whether there was a fair trial under law. This focus should not be blurred by even the subconscious knowledge that a post-trial decision in favor of the accused might result in the prosecutor's being called upon to respond in damages for his error or mistaken judgment.
“We conclude that the considerations outlined above dictate the same absolute immunity under § 1983 that the prosecutor enjoys at common law. To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest.” (Fns. omitted.) (Emphasis added.) (Imbler v. Pachtman, supra, 424 U.S. at pp. 422–427, 96 S.Ct. at pp. 991–993.)
“12 The Court described the immunity of judges as follows:
“ ‘Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335 [20 L.Ed. 646] (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it “is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” 386 U.S., at 553–554 [87 S.Ct. at 1217–1218] (citation omitted).’ ”
“14 The elements of this immunity were described in Scheuer as follows:
“It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct.' 416 U.S. at 247–248 [94 S.Ct. at 1692].”
“20 The immunity of a judge for acts within his jurisdiction has roots extending to the earliest days of the common law. See Floyd v. Barker, 12 Coke 23, 77 Eng.Rep. 1305 (1608). Chancellor Kent traced some of its history in Yates v. Lansing, 5 Johns. 282 (N.Y.1810), and this Court accepted the rule of judicial immunity in Bradley v. Fisher, 13 Wall. 335 [20 L.Ed. 646] (1872). See n. 12, supra. The immunity of grand jurors, an almost equally venerable common-law tenet, see Floyd v. Barker, supra, also has been adopted in this country. See, e.g., Turpen v. Booth, 56 Cal. 65 (1880); Hunter v. Mathis, 40 Ind. 356 (1872). Courts that have extended the same immunity to the prosecutor have sometimes remarked on the fact that all three officials—judge, grand juror, and prosecutor—exercise a discretionary judgment on the basis of evidence presented to them. Smith v. Parman, supra [101 Kan. 115, 165 P. 663 (1917) ]; Watts v. Gerking, supra [111 Or. 654, 228 P. 135 (1924) ]. It is the functional comparability of their judgments to those of the judge that has resulted in both grand jurors and prosecutors being referred to as ‘quasi-judicial’ officers, and their immunities being termed ‘quasi-judicial’ as well. See, e.g. Turpen v. Booth, supra, at 69; Watts v. Gerking, supra [111 Or.] at 661, 228 P., at 138.”
In our opinion all the reasons with respect to the necessity for judicial immunity to a public prosecutor so eloquently set forth by Justice Powell apply with equal directness and completeness to a provisional director. At bench the adversary shareholders are divided into several opposing well knit small families. It could be in any case that the adversary groups are divided with one small well knit unit and one loosely knit unit of thousands of shareholders. Such could well be one reason civil actions against a provisional director are confined to that specified by the statute itself, to wit, removal of the provisional director.
We hold a provisional director cannot be sued in a civil action for acts performed during tenure as a provisional director.
Extending the cloak of quasi-judicial immunity to a provisional director is pregnant with the suggestion that RPI was guilty of some misconduct but is not civilly accountable therefor. If such had been the rule before petitioner had filed the underlying action it may not have been filed. It is now a public record. In the interest of justice to RPI, the court which appointed him and the public, we pause to add no such conclusion can be properly made from the pleadings in the five causes of action and/or the record as submitted by petitioner before this court. On the contrary they add pragmatic evidence to support the solid reasons for the rule of judicial immunity set forth in the cited cases and emphasized by the excerpts quoted from Justice Powell's opinion (supra).
Thus as exemplars, although we have meticulously analyzed all five causes of action we use the first and the third. The first complains of wrongful discharge. The thrust of this cause of action was the discharge of Latt. The five-year lease of the property which comprised the premises of Matchmaster was about to expire in the fall of 1983. It had previously been renewed from year to year without question on the same terms—two of the renewals during the tenure of RPI. The only difference between the adversary parties prior to request for renewal of the lease by the Board of Matchmaster was the purchase of machinery at a public auction attended by Latt. Latt was president of the corporation at the time of purchase.
Latt refused to and did not negotiate on the lease. The Board advised him he would be deposed as president if he did not on a fixed date more than two weeks in advance agree to renew the lease as one of lessors, Tenenblatt being the other. He was also advised by same with written notice that the action of the Board would be stayed fourteen days to allow him the opportunity to either persuade the Board or to seek relief from such action by the court. Latt did neither and his discharge as president of Matchmaster followed.
Latt elected a different course of action. Commencing prior to December 14, 1983, when Matchmaster filed its action against Latts and on or about June 27, 1983, through at least April 1984, Matchmaster and the Tenenblatt and Latt groups each being severally represented by various and numerous counsel, were in negotiations with each other to settle accounts between Matchmaster and each other, the prime objective of each of the groups being to settle their several accounts with Matchmaster and concurrently by purchase to vest all the stock ownership of Matchmaster and the complete fee title of the premises occupied by Matchmaster in one or the other. (Exhibits 1–19, pp. 087 to 159 of Exhibit 9 of Reply of Petitioners.)
In the course of those negotiations Latt cross-complained in the underlying action and either before or after it was filed offered to buy or sell for $2,750,000. During the course of those negotiations Latt resigned as a director and was succeeded by retired Judge Ron Brown.
The negotiations referred to are reflected by an exchange of letters between the adversary groups and their respective counsel and the minutes of various meetings of Matchmaster's full board.
The third cause of action is predicated on Latt's claim for lost wages as president of Matchmaster. (Lab.Code, § 203.) The cause of action is grounded on “ * * * refusal to pay Latt's accrued compensation * * *.” Wages and accrued compensation are not the same thing. However, assuming the application of section 203 there was on the face of the record an admission that no accrued compensation was due to Latt. Petitioner admits in the record that all such compensation to any officer occupied by Latt or Tenenblatt was considered to be profits and was payable to Matchmaster and would result in dividends to all the stockholders of the corporation. (See fn. 1.)
The three remaining causes of action are similarly defective and do not withstand legal or common sense analysis.
We are satisfied the complaint herein failed adequately to allege any cause of action for misfeasance or non-feasance, civil or otherwise, on the part of RPI.
The trial court's ruling is affirmed and the petition is denied. Real party in interest shall recover from petitioners his costs in this proceeding. The alternative writ is discharged.
1. Paragraph 13 of Latt's cross-complaint states:“From the inception of their relationship as stockholders of Matchmaster, the Latts and the Tenenblatts structured their relationship so that the two 50% stockholder groups (or their representatives) would share equally in the profits of Matchmaster, whether derived in the form of salaries, bonuses, dividends or otherwise (‘profits') [sic], and they agreed orally and in writing that such equal sharing of profits of Matchmaster would occur.”
2. “(a) 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 33 1/313 percent of the voting power․ [¶] (c) A “provisional director shall be an impartial person, who is neither a shareholder nor a creditor of the corporation, nor related by consanguinity or affinity within the third degree according to the common law to any of the other directors of the corporation or to any judge of the court by which such provisional director is appointed. A provisional director shall have all the rights and powers of a director until the deadlock in the board or among shareholders is broken or until such provisional director is removed by order of the court or by approval of the outstanding shares (Section 152). Such person shall be entitled to such compensation as shall be fixed by the court unless otherwise agreed with the corporation.”
3. RPI is not named in the second or fourth. The sixth for the removal of Kaufman is moot. RPI was relieved as provisional director by order of respondent on August 30, 1984, on ground there was no longer an impasse and ordered Matchmaster to pay his fees to date. RPI's motion to dismiss those pending actions was denied without prejudice. The ninth for injunctive relief is moot.
4. Butz v. Economou (1978) 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895; Imbler v. Pachtman (1976) 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128; Yaselli v. Goff (1927) 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395; Bradley v. Fisher (1872) 80 U.S. (13 Wall) 335, 20 L.Ed. 646; Richardson v. Koshiba (9th Cir.1982) 693 F.2d 911; Spaulding v. Nielsen (5th Cir.1979) 599 F.2d 728; Robinson v. Bergstrom (7th Cir.1978) 579 F.2d 401); Silver v. Dickson (9th Cir.1968) 403 F.2d 642; Greene v. Zank (1984) 158 Cal.App.3d 497, 204 Cal.Rptr. 770; Tagliavia v. County of Los Angeles (1980) 112 Cal.App.3d 759, 169 Cal.Rptr. 467; Taylor v. Mitzel (1978) 82 Cal.App.3d 665, 147 Cal.Rptr. 323; In re Jamison Steel Corp. (1958) 158 Cal.App.2d 27, 322 P.2d 246.
5. Greene v. Zank alleged a violation of 42 U.S.C., § 1983, the Court applied federal law. (Greene v. Zank, supra, 158 Cal.App.3d at p. 503, 204 Cal.Rptr. 770.) However, as the authorities show, judicial immunity is an ancient common law doctrine, early imported into American jurisprudence. We feel therefore federal authority is and should be persuasive.
ROTH, Presiding Justice.
COMPTON and BEACH, JJ., concur.