YMELDA PATRICK v. ALACER CORPORATION (2011)

The court granted judgment on the pleadings to defendants on plaintiff's remaining causes of action.   The court found “each of the [causes of actions] is based on Plaintiff's assertion she has a shareholder interest or is entitled to the stock of Alacer.”   So they are.

This is most obviously true for her derivative causes of action, which can be asserted only by record or beneficial shareholders.  (Corp.Code, § 800, subd. (b)(1).)   Plaintiff alleged beneficial shareholder standing in the third amended complaint by alleging a community property interest in the stock of Alacer.   But the court found she had no such interest, and so she has corresponding right to Alacer stock.   She thus cannot state any derivative cause of action.

But this is also true of plaintiff's direct causes of action.   She fails to state an impairment or constructive trust causes of action because she is not entitled to the Alacer shares she alleged defendants have withheld from her.   Nor can plaintiff save these causes of action by alleging defendants (or Jay) impaired or withheld her community property interest in Alacer's increased value by reinvesting it in Alacer.   We have already rejected this theory because that is what equitable apportionment is for — to determine and apportion her interest.   And plaintiff obtained judgment for her community property interest, plus prejudgment interest to compensate her for her intervening loss of its use.   Finally, plaintiff fails to state a breach of fiduciary duty cause of action because she is not an Alacer shareholder to whom defendants owe any fiduciary duty.   The court did not err by granting judgment on the pleadings for defendants and denying plaintiff leave to amend.

DISPOSITION

The judgment is affirmed.   In the interests of justice, the parties shall bear their own costs on appeal.

WE CONCUR:

Filed 12/14/11

IN THE

FOURTH APPELLATE DISTRICTDIVISION THREE

YMELDA T. PATRICK,

Plaintiff and Appellant,

v.

ALACER CORPORATION et al.,

Defendants and Appellants.

G044589

(Super.Ct. No. 03CC14826)

O R D E R

On the court's own motion and for good cause, the opinion filed on November 16, 2011, is certified for publication.   It appears that the opinion meets the standards set forth in California rules of Court, rule 8.1105(c).

The opinion is ordered published in the Official Reports.

WE CONCUR:

IKOLA, J.

RYLAARSDAM, ACTING P. J. O'LEARY, J. IKOLA, J. RYLAARSDAM, ACTING P. J. O'LEARY, J.