Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hubbard v. Phil's BBQ of Point Loma

August 2, 2010

THOMAS HUBBARD, PLAINTIFF,
v.
PHIL'S BBQ OF POINT LOMA, INC., A CALIFORNIA CORPORATION; PHILLIP C. PACE AND JEFFREY A. LOYA, DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER DENYING MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL AND FOR STAY OF PROCEEDINGS OR, IN THE ALTERNATIVE, FOR RECONSIDERATION

The Defendant corporation, Phil's BBQ of Point Loma, Inc. ("New Phil's") is the subject of proceedings under California Corporations Code § 2000. Two of its owners, Defendants Pace and Loya, are also the sole owners and officers of Phil's BBQ, Inc. ("Old Phil's"), which operated a different barbeque restaurant until December 2006.

In preparation for an evidentiary valuation hearing currently on calendar for Thursday, September 16, the Court made certain rulings concerning the valuation of New Phil's. The order directed the appraisers to assume New Phil's would be permitted, going forward, to use certain intellectual and tangible property on the same terms as it was currently using them, so as to permit the corporation to be sold as a going concern rather than piecemeal. The order also found as a matter of law Plaintiff owned a 10% interest in New Phil's.

Defendants, dissatisfied with this order, have moved for an order certifying three issues for interlocutory appeal and seeking a stay. In the alternative, they have filed an ex parte motion for leave to seek reconsideration of virtually all the Court's rulings. The Court finds it appropriate to deny these requests summarily without requiring an opposition.

I. Interlocutory Appeal

Defendants ask the Court to certify three issues for appeal pursuant to 28 U.S.C. § 1292:

1. Whether the fact that New Phil's does not own or have a written license to use the intellectual property would prevent it from being sold as a going concern;

2. Whether appraisers in a § 2000 valuation proceeding "are entitled to make assumptions about what reasonable shareholders would do to maximize the liquidation value for the defendant corporation while acting in their capacity as officers/directors/fiduciaries of "Old Phil's"; and

3. Whether California law permits the appraisers to make any assumption about how shareholders would behave, considering Pace's and Loya's fiduciary duties to Old Phil's.

Certification of issues for appeal under § 1292(b) is granted only sparingly. Ass'n of Irritated Residents v. Fred Schakel Dairy, 634 F. Supp. 2d 1081, 1087 (E.D.Cal., 2008). There is no reason to do so here. First, the issues are poorly framed. The first issue does not present a meaningful question because it is undisputed New Phil's had a valid unwritten license to use the intellectual property at issue. The second issue does not adequately reflect the questions presented here; even if the Ninth Circuit were to address it, the answers would have no direct bearing on this Court's ruling. The third issue is subsumed within the second.

Furthermore, an interlocutory appeal would be of little assistance. The issues presented here are questions of California state law, and the parties agree only five published decisions have addressed the application of California Corporations Code § 2000 in a similar context. The California Supreme Court has not ruled on the precise issues concerning valuation presented here. The Ninth Circuit would have no more or better information than this Court does. Finally, the interlocutory appeal would occasion needless delay and would result in piecemeal litigation of the issues.

II. Reconsideration

While the Court recognizes its own authority to reconsider its rulings at any time before a final judgment has been entered, United States v. Martin, 226 F.3d 1042, 1049 (9th Cir. 2000), motions for reconsideration are disfavored and appropriate only if the Court is presented with newly discovered evidence or a change in controlling law, or has committed clear error. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). Defendants argue that virtually the entire order was clearly erroneous, and ask that errors be corrected

The Court considered all the pleadings in Plaintiff's motion for partial summary judgment, as well as the applicable authority, and finds no reason for a wholesale reexamination of its decision. Nevertheless, because it is clear Defendants substantially misunderstand the order, the Court finds it appropriate to clarify several points Defendants have raised.

A. Dealings Between Corporate Entities

Defendants identify a large number of what they call "inconsistencies" in the Court's order, but these appear to be misreadings of the Court's order, misunderstandings of the law, or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.