18-CIV-04355 ANDRIGHETTO PRODUCE INCORPORATED, ET AL. VS. DAVID AMDRIGHETTO

ANDRIGHETTO PRODUCE INCORPORATED DAVID ANDRIGHETTO
DAVID J. MICLEAN

PETITION TO STAY VOLUNTARY DISSOLUTION OF ANDRIGHETTO PRODUCE INCORPORATED AND ASCERTAIN VALUE OF MOVING PARTY’S SHARES TENTATIVE RULING:

The Petition of Andrighetto Produce Incorporated (“Corporation”) and Steven Andrighetto (“Steven”) (also collectively “Petitioners”) to Stay Voluntary Dissolution of Corporation and to Ascertain Value of Moving Party David Andrighetto’s (“David”) Shares is GRANTED based on the Stipulation of the parties filed on November 27, 2018. The parties stipulated to stay voluntary dissolution proceedings for the Corporation, and to an appraisal of David’s shares pursuant to Corporations Code section 2000.

The parties further ask that the court consider three remaining issues:

1. Whether the court should approve the Corporation as sole petitioner, or as one of two petitioners along with Steven, under the Amended Petition.

David contends that only the Corporation may serve as petitioner in this action. Steven’s and David’s respective positions are based on actions taken by the Board at a November 12, 2018 special meeting. (See Stipulation, ¶ 7.a.) This meeting occurred after the Amended Petition in this action was filed as well as after the briefs regarding this Amended Petition were filed. Further, neither party has cited any authority that the court may interpret actions taken by the Board as part of this Amended Petition. Moreover, even if the court could make such a determination, no evidence has been presented to the court regarding what happened at the Board meeting. Therefore, the court does not reach this issue as it is not properly before the court.

2. Whether the court should enter an order setting forth the timeline for appointment of the two additional appraisers and the appraisal process, the date for determination of “fair value” pursuant to Section 2000, and additional details and instructions for the appraisal process pursuant to Section 2000.

Pursuant to Corporations Code section 2000(c), the court shall appoint three disinterested appraisers to appraise the fair value of the shares owned by the moving parties, and shall make an order referring the matter to the appraisers so appointed for the purpose of ascertaining the value. “The order shall prescribe the time and manner of producing evidence, if evidence is required.” (Corp. Code § 2000(c).)

The parties stipulate that Terry Lloyd shall serve as an appraiser and chairperson of the panel of three appraisers, and that the parties shall each select one appraiser. (See Stipulation, p.4:26-5:1.) Accordingly, PARTIES ARE TO APPEAR with the names of their disinterested appraisers, and also be prepared to address the time and manner of producing evidence, if evidence is required.

3. Petitioner’s reservation of right to address its request to have David removed from the Board, and Respondent’s reservation of the right to respond, including by submitting full briefing and evidence, and to request a separate evidentiary hearing, if Petitioner seeks to remove David as a director or officer, or from the administration of the Company.

The parties request that this issue be considered by the court at the hearing, but it does not appear the parties are requesting a ruling on this issue at this time. Therefore, the court does not consider any arguments regarding this issue.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.