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Veyna v. Orange County Nursery

January 15, 2009

DAVID F. VEYNA ET AL., PLAINTIFFS AND RESPONDENTS,
v.
ORANGE COUNTY NURSERY, INC., ET AL., DEFENDANTS AND APPELLANTS.



Petition for writ of supersedeas to stay a decree from the Superior Court of Orange County, David R. Chaffee, Judge. Petition denied. (Super. Ct. No. 06CC08763).

CERTIFIED FOR PUBLICATION

OPINION

THE COURT*fn1

Minority shareholders of Orange County Nursery, Inc. (the moving parties), filed a complaint for involuntary dissolution of the corporation. (Corp. Code, § 1800, subd. (b).) The corporation (the purchasing party), through its president, Robert Veyna, elected to buy out the moving parties in order to avoid dissolution. (Corp. Code, § 2000.)*fn2 After reviewing the independent appraisal report, the trial court entered a decree on November 21, 2008, fixing the fair value of the moving party's shares and ordering, that unless the purchasing party made payment for the shares in cash by December 15, 2008, judgment would be entered winding up and dissolving the corporation.

Without making the required payment, or first seeking relief in the trial court, the purchasing party filed a notice of appeal December 5, 2008.*fn3 Three days later it filed the instant petition for writ of supersedeas in which it asks this court to stay the trial court decree pending resolution of the appeal. It argues that once an appeal is perfected the decree's requirement that payment be made for the shares, in this case by December 15, is automatically stayed until the reviewing court, at the end of the appeal, fixes the fair value of the shares and specifies when payment must be made. It also argues that if the payment requirement is not automatically stayed then this court should exercise its discretion to issue a stay here because it would be unfair to force the purchasing party to purchase the shares now in order to maintain the appeal when it cannot know the fair value of the shares until after the appeal is decided. Robert Veyna assures us, moreover, in a declaration in support of the supersedeas petition that "[i]f the result of the appeal is favorable, it is the company's present intention to elect to purchase the minority shares and the company is confident it will have financial resources to do so."

This court requested and received opposition, issued a temporary stay, and heard oral argument. (Cal. Rules of Court, rule 8.112(d)(1).) Having considered the arguments of the parties and the equities of the matter, we will deny the petition for writ of supersedeas and dissolve the temporary stay previously issued. We hold the trial court's alternate decree-and specifically its requirement that the purchasing party make payment for the moving parties' shares by December 15 or see dissolution of the corporation-is not automatically stayed simply by perfecting the appeal. Our holding is based on long-established Supreme Court precedent which holds that judgments in special proceedings and self-executing orders are not automatically stayed by the filing of a notice of appeal. We also decline to exercise our discretionary authority to issue supersedeas on the ground that any such request must be made in the first instance in the trial court, which has not yet been done.

I.

Orange County Nursery, Inc., is a closely held corporation founded in 1887 as the Orange County Nursery and Land Company. Margarito Veyna purchased the nursery as an on-going concern some time in the 1930s. The company was incorporated in 1950 and has been continuously run by the Veyna family. Today, it operates as a wholesale tree nursery selling bare root and containerized trees with numerous growing grounds in California and Texas.

Locked in a dispute over money and control over the day-to-day operations of the business, Veyna's descendants have split into three camps. The shareholders in control of the corporation today, including president Robert Veyna, own 50.25 percent of the total common stock of the corporation. The moving parties, who controlled the business for two years beginning in 2001, own 40.25 percent of the stock. The remaining shares, the record suggests, are held by a separate branch of the family who are apparently just watching from the sidelines. Not surprisingly, the two disputing camps blame each other for mismanaging and running down the business: the moving parties complain that Robert Veyna's side of the family is driving the business inevitably towards bankruptcy, while Veyna and the majority shareholders say they are making sacrifices in an attempt to preserve the company after the moving parties and their side of the family all but sent it into bankruptcy.

On August 4, 2006, the matter came to a head. The moving parties filed a complaint for involuntary dissolution of the corporation alleging the business has been run for the sole benefit and advantage of the majority shareholders to the detriment of the minority shareholders. On July 27, 2007, about one month before trial, the parties filed a stipulation wherein the corporation agreed to follow the buy-out procedures set forth in Corporations Code section 2000. The stipulation provided:

"1. The Purchasing Party has elected to purchase the Shares owned by the Moving Parties pursuant to Corporations Code § 2000.

"2. The Purchasing Party and the Moving Parties are unable to agree upon the fair value of such shares.

"3. The Purchasing Party will give a bond with sufficient security to pay the estimated reasonable expenses (including attorneys' fees) of the Moving Parties if such expenses are recoverable under Corporations Code § 2000(c), in an amount set by the Court.

"4. This stipulation and order shall be deemed an'application' to the Court by the Purchasing Party, pursuant to Corporations Code ยง 2000(b), for the Court to issue orders to stay the winding up and dissolution proceeding and to set any other procedures under any subsection of Corporations ...


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