Vivian Chiang, as Trustee of the Chiang Family Trust v. Meehan, et al.
30-2015-00794424
Defendant and Cross-Complainant David J. Doke?s Motion for Leave to File a Third Amended Cross-Complaint is denied.
Doke is correct that the ruling on the Bond, in finding the claims barred by the statute of limitations, is not on the merits, and cannot be considered here as such.? (Corp. Code, ? 800, subd. (d).)
The amendments proposed do not contain any factual basis, and do not change the nature of those causes of action from derivative to non-derivative.?? As alleged previously, in the Second Amended Cross-Complaint, and as is continued to be alleged, in the proposed Third Amended Complaint, the lawsuit is about what was done with the profits of the Corporation/Limited Partnership.? Such claims are derivative in nature. The fact that Doke was owed distributions or profits, at the time the profits were allegedly wrongly used,? does not make the claim non-derivative. ?The harm is to the Corporation/Limited Partnership, if any, as the profits were owned by the Entities.? The Cross-Defendants did not owe the money to Doke, the Corporation/Limited Partnership did.? If Cross-Defendants took the money wrongly, it is the Corporation/Limited Partnership?s money that was taken.
Doke concedes that he has not changed any of the allegations.? He reasserts the same sixth and tenth causes of action in his own name, rather than on behalf of the entities. That is no amendment at all. The mere deletion of reference to the derivative nature of the claims, without any explanation, constitutes a sham pleading, which cannot be considered by the Court. ?(Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-426.)? The allegations remain derivative, even when the sham allegations are considered.
Plaintiff shall give notice of the ruling.