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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Aug-15-2014 11:43 am
Case Number: CGC-12-521356
Filing Date: Aug-15-2014 11:43
Filed by: KAREN LIU
Juke Box: 001 Image: 04587865
ORDER
NATHAN MARSHALL et al VS. DESOTO CAB COMPANY, INC. et al
001004587865
Instructions:
Please place this sheet on top of the document to be scanned.‘
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MILES B. COOPER, SBN209085
EMISON HULLVERSON LLP
1005 Sansome Street, Suite 330
San Francisco, California 94111
Telephone: 415-434-2111
Facsimile: 415-434-2112
miles@emisonhullverson.com
ATTORNEYS FOR PLAINTIFFS
NATHAN MARSHALL and
ALEX MARSHALL
3°
* dadisdD
AUG 15 2014
CLERK OF THE CourT
By: te
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
NATHAN MARSHALL and ALEX
MARSHALL, individually and as successors in
interest to decedents DENNIS T. MARSHALL
CASE NO. CGC-12-521356
ORDER DENYING DEFENDANT SELBY
and KAREN MARSHALL, AND HUDSON CORPORATION’S
MOTION FOR SUMMARY JUDGMENT
Plaintiffs,
Date: August 12, 2014
v. Time: 9:30 a.m.
Judge: Hon. Marla J. Miller
DESOTO CAB COMPANY, INC., FAEGH
BEHBAHANI, SELBY AND HUDSON Case Filed: June 5, 2012
CORPORATION, and DOES 1-20, inclusive, Trial Date: October 6, 2014
Defendants.
Defendant Selby and Hudson Corporation’s Motion for Summary Judgment came on for
hearing on August 12, 2014 in this court. Good cause having been shown,
IT IS ORDERED that defendant Selby and Hudson Corporation’s Motion for Summary
Judgment is denied.
Plaintiffs’ Request for Judicial Notice is granted, Defendant's objections to evidence are
(any abgeston objections pertain to fhe endenu
overruled to the extent tpeyate Telied on below. In making this ruling, the Court did not consider
the Cindy Ward memo, Exhibit 18 to Plaintiffs’ separately bound evidence, or any references to
it.
Whether Plaintiffs can establish alter ego/enterprise theory of liability against Defendant
-1-
ORDER DENYING SELBY AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENTSelby and Hudson Corporation is a factual ssf seppegied Associated Vendors Inc. v. Oakland
Meat Co. (1962) 210 Cal.App.2d 825 at 837, and Las Palmas Associates v. Las Palmas Center
Assoc. (1991) 235 Cal.App.3rd 1220 at 1248.
There is a triable issue of material fact whether defendant Selby and Hudson is liable as
an alter ego of New De Soto and/or whether Plaintiffs can establish an enterprise theory of
liability.
The evidence the court relied on that supports this finding is as follows:
e Defendant admits that 57 percent of the shareholders of each entity are the same.
(Exhibit 19 to Plaintiffs’ evidence, Scoble declaration at paragraph nine.)
e Five of Defendant’s directors were entitled to be on New De Soto’s board.
(Defendant’s Undisputed Material Fact, referred to as “UMF” 15.)
¢ Both entities are headquartered at the same address. (Defendant’s UMF 27.)
e After the division of Old De Soto, New De Soto was in poor financial condition.
(Exhibit 5 to Plaintiffs’ evidence, Garcia deposition, page 11, lines 7 to 18; Exhibit 4
to Plaintiff's evidence, Molina deposition, page 52, lines 7 to 16 and page 28 line 13 to
page 29, line 4.)
© Defendant retained ownership of Old De Soto’s real property, except the fuel tank.
(Exhibit 8 to Plaintiffs’ evidence, Bates numbered DEF84.)
e New De Soto was responsible for the operating expenses of the property but did not
receive a benefit from the depreciation. (Exhibit 9 to Plaintiff's evidence, Bates
number DEF50.)
e The parties agreed to keep the reorganization secret. (Exhibit 8 to Plaintiffs’ evidence,
Bates numbered DEF88.)
e The liabilities were transferred to New De Soto. (Exhibit 7 to Plaintiffs’ evidence.)
e Many of the same people held key positions in each entity. (Exhibit 8 to Plaintiffs’
evidence, Bates stamped DEF81.)
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ORDER DENYING SELBY AND HUDSON CORPORATION’S MOTION FOR SUMMARY JUDGMENTot © 3°
1 Summary judgment is therefore denied.
2
3 So ordered.
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DATED: August/S, 2014 : Wile te,
4) i Mae Mer
' 6 Judge of the Superior Court
, ee TMCS. 132
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Q
3.
ORDER DENYING SELBY AND HUDSON CORPORATION’S MOTION FOR SUMMARY JUDGMENT~~
Christy Marty-Holdt
From: Miles Cooper
Sent: Thursday, August 14, 2014 3:34 PM
To: Christy Marty-Holdt
Subject: FW: Marshall v. DeSoto, CGC-12521356: August 12, 2014 at 9:30 a.m. Dept. 302, Line 5 -
request for transcript [WOV-iManage.FID762312]
From: Scott Atkinson [mailto:satkinson@carr-mcclellan.com]
Sent: Tuesday, August 12, 2014 3:56 PM
To: Miles Cooper
Ce: David King; Carol Loza
Subject: RE: Marshall v. DeSoto, CGC-12521356: August 12, 2014 at 9:30 a.m. Dept. 302, Line 5 - request for transcript
[IWOV-iManage.FID762312]
Miles,
We have no corrections. Thank you.
-Scott
Scott E. Atkinson
Attorney
CARR McCLELLAN INGERSOLL THOMPSON & HORN
Professional Law Corporation
216 Park Road
Burlingame
California 94010
P 650.342.9600
F 650.342.7685
www.carr-meclellan.com
CONFIDENTIALITY NOTICE: This email message is for the sole use of the intended recipient(s) and may contain
confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not
the intended recipient, please contact the sender by reply email and destroy all copies of the original message.
From: Miles Cooper [mailto:miles@emisonhullverson.com]
Sent: Tuesday, August 12, 2014 2:38 PM
To: David King
Ce: Carol Loza; Christy Marty-Holdt
Subject: FW: Marshall v. DeSoto, CGC-12521356: August 12, 2014 at 9:30 a.m. Dept. 302, Line 5 - request for transcript
Dave/Scott:
We took the court reporter's transcript of the court's ruling and turned it into order, attached. I’m
forwarding the email (below) for comparison. If you see any corrections let me know. If it appears
accurate I'll submit it to the court.
EXHIBIT "A'i
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From: Sherry Sawyer rr
Sent: Tuesday, August 12, 2014 10:33 AM
To: Miles Cooper
Subject: RE: Marshall v. DeSoto, CGC-12521356: August 12, 2014 at 9:30 a.m. Dept. 302, Line 5 - request for transcript
Good morning!
| went through it quickly. If it works for you, great!
If not, | can do a certified copy.
Let me know what works for you.
Have a great day!
THE COURT: Okay. Thank you.
1am going to deny the motion for summary judgment. In so doing, | am not relying on Plaintiff's Exhibit 18,
which is the Cindy Ward memorandum in rendering the ruling.
lam going to grant the Plaintiff's request for judicial notice, although it isn't really particularly material in my
decision making.
1am going to overrule Defendant's objections to evidence to the extent that I've relied on that evidence in
reaching this decision.
And | am going to tell you the evidence that | am relying on here.
The Motion for Summary Judgment is denied. Whether Plaintiff can establish alter ego/enterprise theory of
liability against Defendant Selby and Hudson Corporation is a factual issue. And that is supported by the cases
of Associated Vendors Incorporated versus Oakland Meat Company, 210 Cal.App.2d 825 at 837, a 1962 case,
and Las Palmas Associates versus Las Palmas Center Associates, 235 Cal.App.3rd 1220 at 1248, a 1991 case.
There is a triable issue of material fact whether defendant is liable as an alter ego of New De Soto and/or
whether the Plaintiff can establish an enterprise theory of liability.
And this is some of the evidence that supports the finding.
Defendant admits that 57 percent of the shareholders of each entity are the same. That is Exhibit 19 to the
Plaintiff's evidence, the Scoble declaration at paragraph nine.
Five of Defendant's directors were entitled to be on New De Soto's board. That is Defendant's Undisputed
Material Fact, which | am going to refer to as "UMF", 15.
Both entities are headquartered at the same address. Defendant's UMF 27.
After the division of Old De Soto, New De Soto was in poor financial condition. That is Exhibit 5 to Plaintiff's
evidence, the Garcia deposition, page 11, line seven to 18. Exhibit 4 to Plaintiff's evidence, the Molina
deposition, page 52, line seven to 16, page 28, line 13 to page 29, line four.
Defendant retained ownership of Old De Soto's real property, except the fuel tank. That is Exhibit 8 to
Plaintiff's evidence, Bates numbered DEF84.
New De Soto was responsible for the operating expenses of the property but did not receive a benefit from
the depreciation. Exhibit 9 to Plaintiff's evidence, and that is Bates number DEFSO.
The parties agreed to keep the reorganization secret. Exhibit 8 to Plaintiff's evidence DEF88.
The liabilities were transferred to New De Soto. That's Exhibit 7 to Plaintiff's evidence.
Many of the same people held key positions in each entity. That is Exhibit 8 to Plaintiff's evidence. It is Bates
stamped DEF81.
That is my ruling.
Thank you, everybody.*Sherry Sawyer, CSR, CRR, RMR
San Francisco Superior Court
400 McAllister Street
Dept. 302
San Francisco, CA 94102
415.551.5868
From: Miles Cooper [mailto:miles@emisonhullverson.com]
Sent: Tuesday, August 12, 2014 10:25 AM
To: Sherry Sawy
Ce: dking@carr-meclellan.com; Christy Marty-Holdt; Carol Loza
Subject: Marshall v. DeSoto, CGC-12521356: August 12, 2014 at 9:30 a.m. Dept. 302, Line 5 - request for transcript
Ms. Sawyer:
The judge’s ruling on the record today was very specific and my fingers, while fast for a lawyer, are
not professional grade. I’m requesting a transcript, specifically the judge's ruling portion, so | can craft
an order. I’ve not requested one from Law and Motion before so if there is a formal process beyond
emailing you I’m asking if you would please let me know.
M
EmisonHullversonLLP
Miles B. Cooper
Emison Hullverson LLP
1005 Sansome Street, Suite 330
San Francisco, CA 94111
(415) 434-2111 (office)
(415) 606-1004 (mobile)
miles@emisonhullverson.com
This email has been scanned for email related threats and delivered safely by Mimecast.
For more information please visit http:/Awww.mimecast.com
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Aug-15-2014 11:43 am Case Number: CGC-12-521356 Filing Date: Aug-15-2014 11:43 Filed by: KAREN LIU Juke Box: 001 Image: 04587865 ORDER NATHAN MARSHALL et al VS. DESOTO CAB COMPANY, INC. et al 001004587865 Instructions: Please place this sheet on top of the document to be scanned.‘ 1 4 i i t i | | MILES B. COOPER, SBN209085 EMISON HULLVERSON LLP 1005 Sansome Street, Suite 330 San Francisco, California 94111 Telephone: 415-434-2111 Facsimile: 415-434-2112 miles@emisonhullverson.com ATTORNEYS FOR PLAINTIFFS NATHAN MARSHALL and ALEX MARSHALL 3° * dadisdD AUG 15 2014 CLERK OF THE CourT By: te SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO NATHAN MARSHALL and ALEX MARSHALL, individually and as successors in interest to decedents DENNIS T. MARSHALL CASE NO. CGC-12-521356 ORDER DENYING DEFENDANT SELBY and KAREN MARSHALL, AND HUDSON CORPORATION’S MOTION FOR SUMMARY JUDGMENT Plaintiffs, Date: August 12, 2014 v. Time: 9:30 a.m. Judge: Hon. Marla J. Miller DESOTO CAB COMPANY, INC., FAEGH BEHBAHANI, SELBY AND HUDSON Case Filed: June 5, 2012 CORPORATION, and DOES 1-20, inclusive, Trial Date: October 6, 2014 Defendants. Defendant Selby and Hudson Corporation’s Motion for Summary Judgment came on for hearing on August 12, 2014 in this court. Good cause having been shown, IT IS ORDERED that defendant Selby and Hudson Corporation’s Motion for Summary Judgment is denied. Plaintiffs’ Request for Judicial Notice is granted, Defendant's objections to evidence are (any abgeston objections pertain to fhe endenu overruled to the extent tpeyate Telied on below. In making this ruling, the Court did not consider the Cindy Ward memo, Exhibit 18 to Plaintiffs’ separately bound evidence, or any references to it. Whether Plaintiffs can establish alter ego/enterprise theory of liability against Defendant -1- ORDER DENYING SELBY AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENTSelby and Hudson Corporation is a factual ssf seppegied Associated Vendors Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825 at 837, and Las Palmas Associates v. Las Palmas Center Assoc. (1991) 235 Cal.App.3rd 1220 at 1248. There is a triable issue of material fact whether defendant Selby and Hudson is liable as an alter ego of New De Soto and/or whether Plaintiffs can establish an enterprise theory of liability. The evidence the court relied on that supports this finding is as follows: e Defendant admits that 57 percent of the shareholders of each entity are the same. (Exhibit 19 to Plaintiffs’ evidence, Scoble declaration at paragraph nine.) e Five of Defendant’s directors were entitled to be on New De Soto’s board. (Defendant’s Undisputed Material Fact, referred to as “UMF” 15.) ¢ Both entities are headquartered at the same address. (Defendant’s UMF 27.) e After the division of Old De Soto, New De Soto was in poor financial condition. (Exhibit 5 to Plaintiffs’ evidence, Garcia deposition, page 11, lines 7 to 18; Exhibit 4 to Plaintiff's evidence, Molina deposition, page 52, lines 7 to 16 and page 28 line 13 to page 29, line 4.) © Defendant retained ownership of Old De Soto’s real property, except the fuel tank. (Exhibit 8 to Plaintiffs’ evidence, Bates numbered DEF84.) e New De Soto was responsible for the operating expenses of the property but did not receive a benefit from the depreciation. (Exhibit 9 to Plaintiff's evidence, Bates number DEF50.) e The parties agreed to keep the reorganization secret. (Exhibit 8 to Plaintiffs’ evidence, Bates numbered DEF88.) e The liabilities were transferred to New De Soto. (Exhibit 7 to Plaintiffs’ evidence.) e Many of the same people held key positions in each entity. (Exhibit 8 to Plaintiffs’ evidence, Bates stamped DEF81.) 2- ORDER DENYING SELBY AND HUDSON CORPORATION’S MOTION FOR SUMMARY JUDGMENTot © 3° 1 Summary judgment is therefore denied. 2 3 So ordered. 4 5 DATED: August/S, 2014 : Wile te, 4) i Mae Mer ' 6 Judge of the Superior Court , ee TMCS. 132 N Q 3. ORDER DENYING SELBY AND HUDSON CORPORATION’S MOTION FOR SUMMARY JUDGMENT~~ Christy Marty-Holdt From: Miles Cooper Sent: Thursday, August 14, 2014 3:34 PM To: Christy Marty-Holdt Subject: FW: Marshall v. DeSoto, CGC-12521356: August 12, 2014 at 9:30 a.m. Dept. 302, Line 5 - request for transcript [WOV-iManage.FID762312] From: Scott Atkinson [mailto:satkinson@carr-mcclellan.com] Sent: Tuesday, August 12, 2014 3:56 PM To: Miles Cooper Ce: David King; Carol Loza Subject: RE: Marshall v. DeSoto, CGC-12521356: August 12, 2014 at 9:30 a.m. Dept. 302, Line 5 - request for transcript [IWOV-iManage.FID762312] Miles, We have no corrections. Thank you. -Scott Scott E. Atkinson Attorney CARR McCLELLAN INGERSOLL THOMPSON & HORN Professional Law Corporation 216 Park Road Burlingame California 94010 P 650.342.9600 F 650.342.7685 www.carr-meclellan.com CONFIDENTIALITY NOTICE: This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. From: Miles Cooper [mailto:miles@emisonhullverson.com] Sent: Tuesday, August 12, 2014 2:38 PM To: David King Ce: Carol Loza; Christy Marty-Holdt Subject: FW: Marshall v. DeSoto, CGC-12521356: August 12, 2014 at 9:30 a.m. Dept. 302, Line 5 - request for transcript Dave/Scott: We took the court reporter's transcript of the court's ruling and turned it into order, attached. I’m forwarding the email (below) for comparison. If you see any corrections let me know. If it appears accurate I'll submit it to the court. EXHIBIT "A'i ' t i i | i 4 From: Sherry Sawyer rr Sent: Tuesday, August 12, 2014 10:33 AM To: Miles Cooper Subject: RE: Marshall v. DeSoto, CGC-12521356: August 12, 2014 at 9:30 a.m. Dept. 302, Line 5 - request for transcript Good morning! | went through it quickly. If it works for you, great! If not, | can do a certified copy. Let me know what works for you. Have a great day! THE COURT: Okay. Thank you. 1am going to deny the motion for summary judgment. In so doing, | am not relying on Plaintiff's Exhibit 18, which is the Cindy Ward memorandum in rendering the ruling. lam going to grant the Plaintiff's request for judicial notice, although it isn't really particularly material in my decision making. 1am going to overrule Defendant's objections to evidence to the extent that I've relied on that evidence in reaching this decision. And | am going to tell you the evidence that | am relying on here. The Motion for Summary Judgment is denied. Whether Plaintiff can establish alter ego/enterprise theory of liability against Defendant Selby and Hudson Corporation is a factual issue. And that is supported by the cases of Associated Vendors Incorporated versus Oakland Meat Company, 210 Cal.App.2d 825 at 837, a 1962 case, and Las Palmas Associates versus Las Palmas Center Associates, 235 Cal.App.3rd 1220 at 1248, a 1991 case. There is a triable issue of material fact whether defendant is liable as an alter ego of New De Soto and/or whether the Plaintiff can establish an enterprise theory of liability. And this is some of the evidence that supports the finding. Defendant admits that 57 percent of the shareholders of each entity are the same. That is Exhibit 19 to the Plaintiff's evidence, the Scoble declaration at paragraph nine. Five of Defendant's directors were entitled to be on New De Soto's board. That is Defendant's Undisputed Material Fact, which | am going to refer to as "UMF", 15. Both entities are headquartered at the same address. Defendant's UMF 27. After the division of Old De Soto, New De Soto was in poor financial condition. That is Exhibit 5 to Plaintiff's evidence, the Garcia deposition, page 11, line seven to 18. Exhibit 4 to Plaintiff's evidence, the Molina deposition, page 52, line seven to 16, page 28, line 13 to page 29, line four. Defendant retained ownership of Old De Soto's real property, except the fuel tank. That is Exhibit 8 to Plaintiff's evidence, Bates numbered DEF84. New De Soto was responsible for the operating expenses of the property but did not receive a benefit from the depreciation. Exhibit 9 to Plaintiff's evidence, and that is Bates number DEFSO. The parties agreed to keep the reorganization secret. Exhibit 8 to Plaintiff's evidence DEF88. The liabilities were transferred to New De Soto. That's Exhibit 7 to Plaintiff's evidence. Many of the same people held key positions in each entity. That is Exhibit 8 to Plaintiff's evidence. It is Bates stamped DEF81. That is my ruling. Thank you, everybody.*Sherry Sawyer, CSR, CRR, RMR San Francisco Superior Court 400 McAllister Street Dept. 302 San Francisco, CA 94102 415.551.5868 From: Miles Cooper [mailto:miles@emisonhullverson.com] Sent: Tuesday, August 12, 2014 10:25 AM To: Sherry Sawy Ce: dking@carr-meclellan.com; Christy Marty-Holdt; Carol Loza Subject: Marshall v. DeSoto, CGC-12521356: August 12, 2014 at 9:30 a.m. Dept. 302, Line 5 - request for transcript Ms. Sawyer: The judge’s ruling on the record today was very specific and my fingers, while fast for a lawyer, are not professional grade. I’m requesting a transcript, specifically the judge's ruling portion, so | can craft an order. I’ve not requested one from Law and Motion before so if there is a formal process beyond emailing you I’m asking if you would please let me know. M EmisonHullversonLLP Miles B. Cooper Emison Hullverson LLP 1005 Sansome Street, Suite 330 San Francisco, CA 94111 (415) 434-2111 (office) (415) 606-1004 (mobile) miles@emisonhullverson.com This email has been scanned for email related threats and delivered safely by Mimecast. For more information please visit http:/Awww.mimecast.com