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Kennedy v. Kennedy

California Court of Appeals, Second District, Fifth Division

April 20, 2015

DRAKE KENNEDY, Plaintiff and Respondent,
v.
BRIAN KENNEDY, et al., Defendants and Appellants.

[As modified Apr. 22, 2015.]

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

APPEALS from an order of the Superior Court of Los Angeles County, Super. Ct. No. BC522560 Richard Edward Rico, Judge.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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COUNSEL

Shartsis Friese, Arthur J. Shartsis, Mary Jo Shartsis, Richard F. Munzinger, Nicolas V. Saenz; Greines, Martin, Stein & Richland and Kent L. Richland for Defendants and Appellants.

O’Melveny & Myers, Daniel M. Petrocelli, Robert M. Schwartz, Jonathan Hacker and Molly M. Lens, for Plaintiff and Respondent.

OPINION

TURNER, P. J.

I. INTRODUCTION

Defendants, Brian Kennedy and, as to Skyline Outdoor Media LLC only, David Seyde, appeal from a May 13, 2014 order in favor of plaintiff, Drake Kennedy.[1] The May 13, 2014 order denied defendants’ motion to stay dissolution of a number of corporations and limited liability companies and appoint appraisers to permit a buyout to occur. (Corp. Code, [2] §§ 2000, 17707.03.) Defendants contend the trial court erred as a matter of law in refusing to order the stay, appraisal and buyout procedure in sections 2000 and 17707.03. We affirm.

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II. BACKGROUND

A. Complaint and Second Amended Cross-complaint

Drake filed a complaint while Brian’s operative pleading is the second amended cross-complaint. Both pleadings allege extensive misconduct by the parties which are not directly pertinent to the controlling legal issues. Given our resolution of the legal issues, we need not discuss the parties’ mutual allegations and evidence of corporate misconduct.

Drake’s complaint was filed against defendants on September 25, 2013. In addition to Brian, Mr. Seyde and Skyline Outdoor Media LLC, named as defendants were: Regency Outdoor Advertising, Inc.; Corona Outdoor Advertising, Inc.; Westminster Outdoor, Inc.; Virtual Media Group, Inc.; West Hollywood Properties LLC; and Kennedy Outdoor Advertising LLC. As can be noted, other than Brian and Mr. Seyde, some defendants are corporations and others are limited liability companies. According to the complaint, Drake and Brian each owned a 50 percent interest in what we will refer to as “the corporations”: Regency Outdoor Advertising, Inc.; Corona Outdoor Advertising, Inc.; Westminster Outdoor, Inc.; and Virtual Media Group, Inc.

In terms of the limited liability companies, Skyline Outdoor Media LLC and West Hollywood Properties LLC, Drake and Brian held different interests. Drake and Brian held a 50 percent interest in West Hollywood Properties LLC. Drake and Brian each held a 40 percent interest in Skyline Outdoor Media LLC. Mr. Seyde held a 20 percent interest in Skyline Outdoor Media LLC. West Hollywood Properties LLC and Skyline Outdoor Media LLC will hereafter be referred to as the “limited liability companies.” Collectively, the corporations and limited liability companies will be referred to as the “companies.” Drake and Brian were each a director, officer, and shareholder or member of each of the companies. Mr. Seyde was a member of Skyline Outdoor Media LLC and held a senior management position in Regency Outdoor Advertising, Inc. Brian was the sole member of Kennedy Outdoor Advertising LLC.

The complaint alleges that Brian: stopped communicating with Drake about most business matters; restricted Drake’s access to information and the books and records: looted and diverted corporate assets; refused to pay costs defending a lawsuit; stole valuable real estate located at the intersection of Sunset Boulevard and Queens Road from West Hollywood Properties LLC; and, with the assistance of Mr. Seyde, transferred the Sunset Boulevard and Queens Road property to Kennedy Outdoor Advertising LLC. Kennedy Outdoor Advertising LLC was an entity owned entirely by Brian. It is alleged Mr. Seyde, with Brian’s assistance, directly competed with Regency Outdoor

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Advertising, Inc. in the outdoor advertising business. Further, it is alleged Brian and Mr. Seyde created Kennedy Outdoor Advertising LLC to compete with the corporations and West Hollywood Properties LLC.

Drake’s complaint alleges causes of action against defendants collectively or individually: fiduciary duty breach; fraudulent concealment; aiding and abetting and conspiracy to commit fiduciary duty breach; aiding and abetting and conspiracy to commit fraudulent concealment; quiet title; ejectment; director removal; inspection right violation; accounting; and declaratory relief. Depending on the claims, they are brought as derivative or direct actions. Drake’s complaint also contains a cause of action for involuntary dissolution of the corporations and the limited liability companies. The involuntary dissolution claim seeks the appointment of a receiver to take possession of all of the companies’ assets and an order requiring they be sold to a third party. All of defendants’ alleged misconduct occurred prior to September 25, 2013. None of the claims in the involuntary dissolution cause of action are derivative in nature.

On July 14, 2014, Brian filed a second amended cross-complaint against: Regency Outdoor Advertising, Inc.; Drake and Stephanie Kennedy; Corona Outdoor Advertising, Inc.; Westminster Outdoor Inc; Virtual Media Group, Inc.; West Hollywood Properties LLC; and Skyline Outdoor Media, LLC. The second amended cross-complaint contains causes of action for: common counts; conversion; unjust enrichment; fiduciary duty breach; aiding and abetting and conspiracy to commit fiduciary duty breach; constructive fraud; imposition of a constructive trust; director removal; constructive trust imposition; “judicial dissociation” of Drake; promissory estoppel; and trade secret misappropriation. Some of the claims are direct while others are derivative in nature. The second cause of action seeks damages, “disgorgement for unjust enrichment, ” various judicial decrees and costs of suit and attorney fees.

B. Motion to Stay Dissolution and Appoint Appraisers and the Trial Court’s Ruling

On January 28, 2014, defendants filed a motion to stay dissolution and appoint appraisers. The motion was brought pursuant to sections 2000 as to the corporations and 17707.03, subdivision (c) as to the limited liability companies. This would allow defendants to avoid dissolution by purchasing Drake’s ownership interests in the companies. Mr. Seyde filed the motion to stay dissolution and appoint appraisers as to Skyline Outdoor Media LLC only. On February 14, 2014, Drake dismissed with prejudice his involuntary dissolution cause of action. On May 13, 2014, defendants’ motion to stay dissolution and appoint appraisers was denied. The trial court disagreed with defendants’ contention that the invocation of their buyout rights was barred

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because of the dismissal of Drake’s involuntary dissolution cause of action, “[T]he court finds that as a result of [Drake’s] dismissal of the dissolution claim, the court lacks jurisdiction to consider defendants’ motion for buyout under section[s] 2000 and 17707.03.” The trial court ruled section 17707.03, subdivision (c)(6) did not apply because it was not operative until after Drake filed suit.

III. DISCUSSION

A. The Dismissal of Plaintiff’s Cause of Action for Dissolution of the Corporations Renders the Statutory Buyout Provision Inapplicable

Defendants contend the trial court erred in denying their motion to stay dissolution and appoint appraisers under section 2000, subdivision (a). Defendants reason the statutory buyout procedure supplanted the dissolution action. We disagree.

Because this issue involves an issue of a statutory interpretation applied to undisputed facts, we exercise independent review. (Burden v. Snowden (1992) 2 Cal.4th 556, 562 [7 Cal.Rptr.2d 531, 828 P.2d 672]; Panakosta, Partners, LP v. Hammer Lane Management, LLC (2011) 199 Cal.App.4th 612. 628 [131 Cal.Rptr.3d 835] (Panakosta).) Our Supreme Court has explained: “When construing a statute, we look first to its words, ‘“because they generally provide the most reliable indicator of legislative intent.” [Citation.] We give the words their usual and ordinary meaning [citation], while construing them in light of the statute as a whole and the statute’s purpose [citation].’ (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 529-530 [120 Cal.Rptr.3d 531, 246 P.3d 612].)" (In re Ethan C. (2012) 54 Cal.4th 610. 627 [143 Cal.Rptr.3d 565, 279 P.3d 1052]; see Hsu v. Abbara (1995) 9 Cal.4th 863. 871 [39 Cal.Rptr.2d 824, 891 P.2d 804].) According to our Supreme Court: “‘If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.’ [Citation.] ‘Only when the statute’s language is ambiguous or susceptible of more than one reasonable interpretation, may the court turn to extrinsic aids to assist in interpretation.’ [Citation.]” (Pineda v. Williams-Sonoma Stores, Inc., supra, 51 Cal.4th at p. 530; see In re Ethan C, supra, 54 Cal.4th at p. 627.)

Section 2000, subdivision (a) provides: “Subject to any contrary provision in the articles, in any suit for involuntary dissolution, ... the holders of 50 percent or more of the voting power of the corporation (the ‘purchasing parties’) may avoid the dissolution of the corporation and the appointment of any receiver by purchasing for cash the shares owned by the plaintiffs or by the shareholders so initiating the proceeding (the ‘moving

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parties’) at their fair value. The fair value shall be determined on the basis of the liquidation value as of the valuation date but taking into account the possibility, if any, of sale of the entire business as a going concern in a liquidation....”[3] Section 2000, subdivision (a) expressly provides the right to purchase the shares of a plaintiff is an alternative to an involuntary dissolution of a corporation. Section 2000, subdivision (a) applies to any suit seeking an involuntary dissolution. Under those circumstances, the purchasing shareholders “may avoid the dissolution of the corporation and the appointment of any receiver” by buying the plaintiff’s shares. Nothing in section 2000, subdivision (a) provides for a buyout independent of a pending involuntary dissolution suit.

Here, Drake’s involuntary dissolution claim was dismissed with prejudice. Code of Civil Procedure section 581, subdivision (c)[4] generally grants a plaintiff an unfettered right to dismiss a cause of action before commencement of trial. (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 786 [176 Cal.Rptr. 104, 632 P.2d 217]; Panakosta, supra, 199 Cal.App.4th at p. 632.) There is no issue in the case concerning a derivative shareholder claim. The language in section 2000, subdivision (a) is unambiguous. Upon dismissal of the dissolution cause of action, there is no dissolution to avoid and, thus, no right to buy out plaintiff’s interests.

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(Panakosta, at pp. 634-635; Cubalevic v. Superior Court (1966) 240 Cal.App.2d 557, 562 [49 Cal.Rptr. 698] (Cubalevic).)

In Panakosta, supra, 199 Cal.App.4th at pages 618-635, limited partners in a partnership filed an action. The plaintiffs filed suit against other limited partners and sought judicial dissolution of the partnership as well as declaratory and injunctive relief. (Id. at p. 618.) While the suit was pending, one of the defendants filed a proceeding under a new case number. The new lawsuit sought: to buy out the plaintiffs’ partnership interests; the appointment of appraisers; and a stay of the related dissolution proceeding. (Id. at p. 621.) The plaintiffs then dismissed with prejudice their claim for dissolution of the partnership. (Ibid.) The trial court denied the defendants’ motion for appointment of appraisers and stay of the related case. Among other things, the trial court ruled that the request for dissolution, which was the condition precedent for the buyout, had been dismissed. (Ibid.)

The Court of Appeal affirmed the trial court’s rulings. At issue was the application of section 15908.02. Section 15908.02 is substantially the same as section 2000. Section 15908.02, subdivision (b) provides, 'in any suit for judicial dissolution, the other partners may avoid the dissolution of the limited partnership by purchasing for cash the partnership interests owned by the partners so initiating the proceeding (the ‘moving parties’) at their fair market value.” The Court of Appeal held: “[T]he right of buyout under section 15908.02 is dependent upon a cause of action for judicial dissolution. A request for buyout under section 15908.02 does not constitute a cause of action independent from a judicial dissolution action. Instead, a buyout represents an alternative to winding up a business when ‘it is not reasonably practicable to carry on the activities of the limited partnership in conformity with the partnership agreement.’ (§ 15908.02, subd. (a).)... [¶]... [¶]... Without a pending judicial dissolution action, the trial court was without jurisdiction to allow the buyout petition to proceed.” (Panakosta, supra, 199 Cal.App.4th at pp. 634-635.)

In Cubalevic, supra, 240 Cal.App.2d at page 558, the plaintiff shareholder filed a lawsuit that included an involuntary dissolution cause of action against a corporate defendant. A shareholder defendant moved for a stay of the dissolution proceeding and an order appointing appraisers. (Id. at pp. 559-560.) But before the argument on the motion, the plaintiff dismissed with prejudice the involuntary dissolution cause of action. (Id. at p. 560.) The trial court: treated the buyout motion as a cross-complaint; granted the buyout motion; and appointed an appraiser to fix the value of the plaintiff’s shares. (Id. at pp. 560-561.) The shareholder defendant filed a prohibition petition seeking to set aside the foregoing orders. (Id. at pp. 558-561.)

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The Court of Appeal granted the defendant’s prohibition petition. Construing former section 4658, [5] the Court of Appeal held: “There is no independent right on the part of one or more stockholders in a corporation to compel the sale to them of the shares of stock of another. There being no such independent right it must follow that there could be no cause of action stated to compel such a sale whether by way of a cross-complaint or counterclaim which would survive after dismissal of the action for involuntary dissolution of the corporation in which the remedy of purchase is given. It is apparent that the real parties in interest here could not bring or maintain a separate action against petitioner the purpose of which would be to compel him to sell his stock to them. Under these circumstances, the remedy provided the real parties in interest under the provisions of section 4658 and section 4659 of the Corporations Code is ancillary to and is dependent upon the existence of the action to compel the involuntary dissolution of the corporation, and upon the dismissal of such action there is nothing left against which the ancillary remedy may be asserted or upon which it may be applied. [¶] In the case at bench, the action for involuntary dissolution having been dismissed with prejudice prior to a decision confirming an award as provided in section 4659 of the Corporations Code, there was left no basis upon which the trial court could make its order, the purpose of which was to ascertain the fair cash value of petitioner’s shares and to permit the real parties in interest to purchase them in order to avoid the involuntary dissolution of the corporation. The making of such an order constituted an act in excess of the jurisdiction of the respondent court.” (Cubalevic, supra, 240 Cal.App.2d at p. 562.) We agree with the trial court that the analysis in Panakosta and Cubalevic, coupled with the express language of section 2000, subdivision (a), required the buyout motion be denied.

Defendants rely on Go v. Pacific Health Services, Inc. (2009) 179 Cal.App.4th 522, 530 [101 Cal.Rptr.3d 736] (Go). The facts in Go are unrelated to the procedural scenario in our case. The following is the procedural scenario: “Go sued defendants on September 7, 2006, seeking the involuntary dissolution of [Pacific Health Services, Inc.] pursuant to section 1800, subdivisions (b)(3) and (b)(4). Go also sought damages based on claims of breach of fiduciary duty and fraud (1) as a shareholder’s derivative action,

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and (2) as a direct action brought by a shareholder and director. (Go v. Pacific Health Services, Inc. (Super. Ct. L.A. County, No. BC358117).) [¶] On December 7, 2006, defendants filed a cross-complaint for breach of contract, misappropriation of corporate opportunities, and breach of the duty of loyalty. [¶] On April 5, 2007, defendants filed a motion pursuant to section 2000 for an order to stay the dissolution proceedings. They requested that the court set a valuation date of August 14, 2006, and fix the value of Go’s shares. [¶]... On May 11, 2007, the court issued an order staying the dissolution proceedings, and providing for the appointment of three appraisers. The parties were to each choose one appraiser, and the two appraisers would then choose the third appraiser. The court ordered the valuation date to be September 7, 2006—the date Go filed suit—and ordered the appraisal to be concluded by September 14, 2007.” (Go, supra, 179 Cal.App.4th at pp. 527-528, fns. omitted.) After the appointment process was completed and the appraisals conducted, eventually, the trial court issued what the Court of Appeal characterized as an alternative decree. (Id. at p. 525.) The Court of Appeal described the alternative decree thusly, “On September 19, 2008, the [trial] court issued an order directing [defendants] to pay Go $155, 484, within 45 days, and stating that ‘if this payment is not made within such time the involuntary winding up and dissolution of defendant corporation shall proceed immediately.’” (Id. at p. 529.)

On appeal, the Court of Appeal characterized the issue as follows: “Defendants contend on appeal that the alternative decree the court issued on September 19, 2008, should be set aside ‘because [defendants] have not yet had the opportunity to defend themselves against [Go’s] claim for Involuntary Dissolution of [PHS], ’ and that ‘Go has not proven that she is entitled to relief under that claim.’ Defendants argue, as they did in the trial court, that ‘once there has been a determination on the merits that [Go] is entitled to commence the dissolution of [PHS], the entry of a decree with the effect of the Alternative Decree would be appropriate.... However, now is not the time for such an order, as the interests of equity and the desire for a determination on the merits justify a delay in the imposition of that relief.’ They request that we set aside the alternative decree and ‘remand this matter with directions to the Trial Court to only enter such a decree after [Go] has prevailed on [her] claims for involuntary dissolution.’” (Go. supra, 179 Cal.App.4th at p. 529.)

Go does not support defendants’ position. In Go, the plaintiff did not dismiss her dissolution cause of action. The entire appraisal issue was litigated, orders were issued and the trial court issued an alternatively phrased decree which dissolved the corporation if the plaintiff remained unpaid. There was no discussion concerning how a dismissal by the plaintiff of the dissolution claim would have affected the defendants’ right to purchase her shares. Here, Drake’s dismissal of his involuntary dissolution claim rendered

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inapplicable the section 2000 buyout procedure. (See Panakosta, supra, 199 Cal.App.4th at pp. 621, 634-635; Cubalevic, supra, 240 Cal.App.2d at pp. 558-563.)

One final note is in order concerning the dismissal of the involuntary dissolution cause of action. No party has asserted that Drake is pursuing a derivative claim against defendants. Dismissal of a derivative claim requires court approval. (Whitten v. Dabney (1915) 171 Cal. 621, 630-632 [154 P. 312]; see Westwood Temple v. Emanuel Center (1950) 98 Cal.App.2d 755, 762 [221 P.2d 146].) No party has asserted that court approval was necessary in this case for Drake to dismiss his involuntary dissolution cause of action. Any contention in that regard has been forfeited. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [188 Cal.Rptr. 115, 655 P.2d 317]; Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 70 [187 P.2d 686], disapproved on another point in Bailey v. County of Los Angeles (1956) 46 Cal.2d 132, 139 [293 P.2d 449].)

B. Defendants Have No Right to Compel a Buyout of Plaintiff’s Interest in the Limited Liability Companies

Defendants contend they are entitled to buy out Drake’s interests in the limited liability companies even though he dismissed his involuntary dissolution cause of action. Defendants rely on section 17707.03, subdivision (c)(6) which, in the context of limited liability companies, states, “A dismissal of any suit for judicial dissolution by a manager, member, or members shall not affect the other members’ rights to avoid dissolution pursuant to this section.” Section 17707.03, subdivision (c)(6) was enacted in 2012. (Stats. 2012, ch. 419, § 20.) Defendants argue that Section 17707.03, subdivision (c)(6) cannot be applied to this case because it was not operative when the conduct which allegedly permits dissolution occurred.

Before analyzing the parties’ retroactivity contentions, it is appropriate to review the events leading up to the adoption of section 17707.03, subdivision (c)(6). Enacted in 1994, the Beverly-Killea Limited Liability Company Act was largely codified in former section 17000 et seq. (Stats. 1994, ch. 1200, §§ 1-100, pp. 7274-7413; see CB Richard Ellis, Inc. v. Terra Nostra Consultants (2014) 230 Cal.App.4th 405, 411, fn. 4 [178 Cal.Rptr.3d 640].) Former section 17000 et seq. comprehensively governed the affairs of limited liability companies. (Nicholas Laboratories, LLC v. Chen (2011) 199 Cal.App.4th 1240, 1252 [132 Cal.Rptr.3d 223]; see People v. Pacific Landmark, LLC (2005) 129 Cal.App.4th 1203, 1211-1212 [29 Cal.Rptr.3d 193]; Sen. Com. on Judiciary, Rep. on Sen. Bill No. 323 (2011-2012 Reg.

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Sess.)[6] as amended Jan. 4, 2012, p. 2.) Former section 17000 et seq. was codified in title 2.5 of the Corporations Code. The Beverly-Killea Limited Liability Company Act was replaced in 2012 by the California Revised Uniform Limited Liability Company Act (§ 17701.01 et seq.). (Stats. 2012, ch. 419, §§ 1-32;Legis. Counsel’s Dig., Sen. Bill No. 323; see CB Richard Ellis, Inc. v. Terra Nostra Consultants, supra, 230 Cal.App.4th at p. 411, fn. 4.) The California Revised Uniform Limited Liability Company Act enacted new Corporations Code title 2.6 which consists of section 17701.01 et seq. New title 2.6, the California Revised Uniform Limited Liability Company Act, replaced former title 2.5 of the Corporations Code.

We turn now to section 17707.03. Section 17707.03, subdivision (a) allows for the dissolution of a limited liability company under specified circumstances.[7] Those circumstances are specified in section 17707.03,

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subdivision (b). Section 17707.03, subdivision (c)(1) through (5) describe how the buyout procedure is conducted. As noted, section 17707.03, subdivision (c)(6) permits the corporate buyout remedy to proceed even when a plaintiff seeking dissolution of a limited liability company dismisses his or her cause of action. There is no similar buyout provision in the General Corporation Law codified in section 100 et seq. (Forming and Operating California Limited Liability Companies (Cont.Ed.Bar 3d ed. 2014), § 16.21 (rev. 12/14) (Forming and Operating).) Also, no such comparable terms are present in the Uniform Limited Partnership Act of 2008 which is codified at section 15900 et seq. (Forming and Operating, supra, § 16.21.) The upshot of section 17707.03, subdivision (c)(6) is as follows in the context of limited liability companies: “[O]nce the buyout procedure is commenced, the moving party cannot, by dismissing the judicial dissolution action, prevent the buyout procedure from going forward. The purchasing party has the right to pursue the buyout procedure by compelling a sale (if the valuation is favorable) or walking away (if it is not).” (Forming and Operating, supra, § 16.21, p. 16-19.)

Defendants argue that section 17707.03, subdivision (c)(6) applies to this action which was commenced by the filing of Drake’s complaint on September 25, 2013. Drake argues though that the unique retroactivity and operative date provisions applicable to limited liability companies prevents section 17707.03, subdivision (c)(6) from applying here. Drake has the better argument.

Defendants first rely on California Constitution, article IV, section 8, subdivision (c)(1) which states, “Except as provided in paragraphs (2) and (3) of this subdivision, a statute enacted at a regular session shall go into effect on January 1 next following a 90-day period from the date of enactment of the statute ... ." (See Gov. Code, § 9600, subd. (a) [codifying Cal. Const., art. IV, § 8, subd. (c)(1)].) Defendants argue that section 17707.03, subdivision

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(c)(6) was therefore effective on January 1, 2013. Then, defendants cite to the savings clause for the California Revised Uniform Limited Liability Company Act which states, “This title does not affect an action commenced, proceeding brought, or right accrued or accruing before this title takes effect.” (§ 17713.03.) Section 17707.03 is part of title 2.6 of the Corporations Code and the California Revised Uniform Limited Liability Company Act. (§ 17701.01.) Thus, defendants argue the Legislature intended the buyout provisions for limited liability companies in section 17707.03, subdivision (c)(6) to apply to our action which was filed after January 1, 2013. Further, defendants’ motion to stay the dissolution and appoint appraisers was filed on January 28, 2014. Also, Drake’s dismissal request was filed on February 10, 2014. Since these events occurred after the effective date of the California Revised Uniform Limited Liability Company Act, defendants contend section 17707.03, subdivision (c)(6) applies here. By contrast, Drake relies upon both sections 17713.03, which we have discussed, and 17713.13 which states, “This title shall become operative on January 1, 2014.”

In our view, the statutory language concerning when the California Revised Uniform Limited Liability Company Act in general and section 17707.03, subdivision (c)(6) in particular is ambiguous. A sound argument can be made, as defendants do, that the limited liability company legislation applies to an action commenced prior to January 1, 2014. Likewise, the operative date language in section 17713.13 supports Drake’s thoughtful contention that section 17707.03, subdivision (c)(6) cannot apply in our case. As we previously explained, when statutory language is ambiguous, it may be appropriate to resort to legislative history documents to determine what the Legislature intended. Our Supreme Court has held: “If the statutory language is susceptible of more than one reasonable interpretation, we must look to additional canons of statutory construction to determine the Legislature’s purpose. (Olson v. Automobile Club of Southern California[ (2008)] 42 Cal.4th [1142,] 1147 [74 Cal.Rptr.3d 81, 179 P.3d 882].) 'Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent.’ (Dyna-Med, Inc. v. Fair Employment & Housing Com. [(1987)] 43 Cal.3d [1379,] 1387 [241 Cal.Rptr. 67, 743 P.2d 1323].)" (McCarther v. Pacific Telesis Group (2010) 48 Cal.4th 104, 110 [105 Cal.Rptr.3d 404, 225 P.3d 538].) We allowed the parties to address the desirability of judicially noticing the documents referenced in the remainder of this opinion. (Evid. Code, §§ 455, subd. (a), 459, subd. (c); see People v. Preslie (1977) 70 Cal.App.3d 486, 493 [138 Cal.Rptr. 828].) We cite them because they are relevant to discerning the Legislature’s intentions. (Jankey v. Lee (2012) 55 Cal.4th 1038, 1050 [150 Cal.Rptr.3d 191, 290 P.3d 187]; People v. Soto (2011) 51 Cal.4th 229, 240-241 [119 Cal.Rptr.3d 775. 245 P.3d 410].)

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In order to determine the Legislature’s intent, we turn to documents largely prepared in 2012 including those contained in legislative files. To begin with, legislators were repeatedly advised that adoption of the California Revised Uniform Limited Liability Company Act would repeal the Beverly-Killea Limited Liability Company Act. (Sen. Com. on Judiciary, Rep. on Sen. Bill No. 323 as amended Jan. 4, 2012, pp. 1- 2, 19-20; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 323 as amended Jan. 13, 2012, p. 1; Assem. Com. on Judiciary, Rep. on Sen. Bill No. 323 as amended Jan. 13, 2012, p. 1; Assem. Republican Caucus, analysis of Sen. Bill No. 323 as amended Jan. 13, 2012, p. 1; Assem. Com. on Appropriations, Rep. on Sen. Bill No. 323 as amended Aug. 6, 2012, pp. 1-2; Dept. of Finance Analysis of Sen. Bill No. 323 as amended Aug. 14, 2012, p. 1; Sen. 3d reading analysis of Sen. Bill No. 323 as amended Aug. 14, 2012, pp. 1-2; Sen. Republican Policy Office, Rep. on Sen. Bill No. 323 as amended Aug. 14, 2012 p. 1; Assem. Republican Caucus, analysis of Sen. Bill No. 323 as amended Aug. 14, 2012, p. 1; Assem. Com. on Judiciary, Rep. on Sen. Bill No. 323 as amended Aug. 23, 2012, pp. 2, 4; Sen. Republican Policy Office, Rep. on Sen. Bill No. 323 as amended Aug. 23, 2012, p. 1; Assem. Republican Caucus, analysis of Sen. Bill No. 323 as amended Aug. 23, 2012, p. 1; Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 323 as amended Aug. 29, 2012, pp. 3-5; Sen. Republican Policy Office, Rep. on Sen. Bill No. 323 as amended Aug. 29, 2012, p. 1; Assem. Republican Caucus, analysis of Sen. Bill No. 323 as amended Aug. 29, 2012, p. 1.) And Senator Juan Vargas, the author of Senate Bill No. 323, advised the Assembly Committee on Judiciary his legislation would repeal the Beverly-Killea Limited Liability Company Act. (Assem. Com. on Judiciary, Mandatory Information Worksheet concerning Sen. Bill No. 323, p. 1.)

Further, the Legislature was aware that Senate Bill No. 323 would create separate effective and operative dates for the California Revised Uniform Limited Liability Company Act. As originally proposed, there were two separate effective and operative dates. The initial Senate Judiciary committee report prepared for the January 10, 2012 hearing states: “Typically, when large sections of the Corporations Code [are] repealed and a new act is enacted, the Legislature provides at least two years from the date of the enactment of the bill for the repeal of the old laws to allow forms to be updated and provide sufficient notice to the public of the changes in the statutes. (See e.g., AB 339 (Harman, [c]h. 495, Stats. 2006).)... Accordingly, if this bill moves forward, the inoperation and repeal dates of Beverly Killea should be modified, along with the operation date of this bill, and the author has agreed to take these amendments in committee.” (Sen. Com. on Judiciary, Rep. on Sen. Bill No. 323 as amended Jan. 4, 2012, p. 16.) This analysis is consistent with section 1004 of the Revised Uniform Limited Liability

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Company Act which serves as the basis of section 17701.01 et seq. Section 1004 of the Revised Uniform Limited Liability Company Act recommends there be a date between when a new limited liability company statute is enacted and when it becomes operative. (Revised Uniform Limited Liability Company Act (2006) § 1004.)

Also, committee and caucus reports state the Beverly-Killea Limited Liability Company Act was to be repealed effective January 1, 2014. (Sen. Com. on Judiciary, Rep. on Sen. Bill No. 323, as amended Jan. 4, 2012, p. 16; Sen. 3d reading analysis of Sen. Bill No. 323 as amended Aug. 14, 2012, p. 1; Assem. Republican Caucus, analysis of Sen. Bill No. 323 as amended Aug. 14, 2012, p. 1; Assem. Republican Caucus, analysis of Sen. Bill No. 323 as amended Aug. 23, 2012, p. 1; Sen. 3d reading analysis of Sen. Bill No. 323 as amended Aug. 23, 2012, p. 1; Assem. Com. on Judiciary, Rep. on Sen. Bill No. 323 as amended Aug. 23, 2012, p. 2; Sen. Rules Com., Off. of Sen. Floor Analysis, Unfinished Business Analysis of Sen. Bill No. 323 as amended Aug. 29, 2012.) Additionally, the Legislative Counsel’s Digest for Senate Bill No. 323 states that the Beverly-Killea Limited Liability Company Act is repealed as of January 1, 2014. Further, former section 17657, subdivision (b) was adopted as section 19 of Senate Bill No. 323. Former section 17657, subdivision (b), which was part of title 2.5 of the Corporations Code, stated, “This title shall remain in effect only until January 1, 2014, and as of that date is repealed.. . ." As noted, the Beverly-Killea Limited Liability Company Act enacted title 2.5 of the Corporations Code.

From the foregoing, we deduce the following. The Legislature intended that the Beverly-Killea Limited Liability Company Act remain in effect until January 1, 2014. The Beverly-Killea Limited Liability Company Act was repealed effective January 1, 2014. The Beverly-Killea Limited Liability Company Act has no provisions similar to section 17707.03, subdivision (c)(6) which permits a buyout to occur if an involuntary dissolution claim is dismissed. The Legislature did not intend that both the Beverly-Killea Limited Liability Company and California Revised Uniform Limited Liability Company Acts be operative at the exact same time. And, the Legislature intended there be separate dates upon which the California Revised Uniform Limited Liability Company Act was enacted and when it actually went into effect. Further, on occasion, the Legislature has enacted statutes which have different effective and operative dates. In People v. Alford (2007) 42 Cal.4th 749, 753, footnote 2 [68 Cal.Rptr.3d 310, 171 P.3d 32], our Supreme Court explained: " ' "The effective date [of a statute] is... the date upon which the statute came into being as an existing law.” [Citation.] “[T]he operative date is the date upon which the directives of the

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statute may be actually implemented.” [Citation.] Although the effective and operative dates of a statute are often the same, the Legislature may “postpone the operation of certain statutes until a later time.” [Citation.]’ (Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 223 [105 Cal.Rptr.2d 407, 19 P.3d 1148].)"

We now return to the language in section 17713.03 which states, “This title does not affect an action commenced, proceeding brought, or right accrued or accruing before this title takes effect.” The plain language of section 17713.03 provides that title 2.6, which includes section 17707.03, subdivision (c)(6), may not affect a lawsuit under four circumstances: where a lawsuit is filed before January 1, 2014; where a proceeding is brought before that date; where a right accrues prior to that date; or a right is accruing before January 1, 2014. As is clear, section 17713.03 is written in the disjunctive, which in its ordinary sense functions to mark an alternative meaning as “‘either this or that’” in statutes. (Houge v. Ford (1955) 44 Cal.2d 706, 712 [285 P.2d 257]; accord Barker Bros., Inc. v. Los Angeles (1938) 10 Cal.2d 603, 606 [76 P.2d 97].) The dispute at issue involves the words “takes effect” in section 17713.03. Defendants contend it is the effective date of the statute. (Cal. Const., art. IV, § 8, subd. (c)(1); Gov. Code, § 9600, subd. (a).) Drake argues it is the date the statute became operative. (§ 17713.13.) The Beverly-Killea Limited Liability Company Act, which was found in former title 2.5 of the Corporations Code, remained in effect until January 1, 2014. (See 9 Witkin, Summary of Cal. Law (2014 Supp.) Partnership, § 192, p. 168.) Thus, title 2.6 of the Corporations Code, which includes section 17707.03, subdivision (c)(6), was not in effect, i.e. operative, until January 1, 2014. (See 5 Ballantine & Sterling, Cal. Corporation Laws (4th ed. 2014) Legislative Alert to Chapter 27, p. SA-27-1 (Rel. 119-6/2013).) As noted, the present action was commenced before January 1, 2014. Because Drake’s complaint was filed prior to January 1, 2014, title 2.6 of the Corporations Code, which includes section 17707.03, subdivision (c)(6) does not apply to the present action. (§ 17713.03; see CB Richard Ellis, Inc. v. Terra Nostra Consultants, supra, 230 Cal.App.4th at p. 411, fn. 4.) Thus, we agree with the trial court that the dismissal of the involuntary dissolution cause of action prevented defendants from invoking their buyout rights in the limited liability companies.

C. Unpublished Discussion[*]

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IV. DISPOSITION

The May 13, 2014 order denying the motion to stay dissolution and appoint appraisers is affirmed. Plaintiff, Drake Kennedy, shall recover his costs incurred on appeal from defendants, Brian Kennedy, David Seyde and Skyline Outdoor Media LLC.

Kriegler, J., and Goodman, J.[*] concurred.


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