McPherson v. Southard CA4/3

Filed 8/14/23 McPherson v. Southard CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BONITA M. MCPHERSON,
Plaintiff and Respondent, G060614
v. (Super. Ct. No. 30-2018-00964601)
DONALD L. SOUTHARD et al., OPINION
Defendants and Appellants.
Appeal from a judgment of the Superior Court of Orange County,
Frederick P. Horn, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Dismissed.
Ulwelling Law, James K. Ulwelling and Lauren E. Saint for Defendants
and Appellants.
Martorell Law, Eduardo Martorell and JoAnn Victor for Plaintiff and
Respondent.
* * *
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Plaintiff Bonita M. McPherson (Bonita ) filed this shareholder derivative
action on behalf of Western Tap Manufacturing Company, Inc. (Western Tap), asserting
claims against corporate officers and controlling shareholders Donald L. Southard (Don),
Lynn Southard (Lynn), and Robert McPherson (Defendants) for breach of fiduciary duty,
unfair business practices, unjust enrichment, abuse of control, corporate waste, and for an
accounting. Following a bench trial, the trial court entered a judgment in favor of Bonita
and against Defendants on all causes of action.
The judgment anticipated additional action by the parties and the trial court:
(1) on Bonita’s accounting cause of action, it required Defendants and Western Tap “to
turn over all financial records associated with Western Tap in their possession, custody or
control”; (2) within 45 days of that production, it ordered the parties “to meet and confer
and attempt to come to an agreement on the amounts that [Defendants] are to reimburse
Western Tap for unauthorized distributions of money and unauthorized payments of their
personal expenses”; (3) if the parties were unable to agree on what amounts should be
reimbursed, the court would “appoint a receiver under California Code of Civil Procedure
section 564 to address a determination regarding the amounts that [Defendants] are to
reimburse Western Tap for unauthorized distributions of money and unauthorized
payments of their personal expenses”; (4) on Bonita’s claims for usurped corporate
opportunity concerning the purchase of real property (the Dale Street property), the
judgment ordered the parties to either (a) turn over the Dale Street property to Western
Tap, subject to repayment of certain expenses, or (b) submit a joint plan to sell the Dale
Street property; and (5) the judgment specified that if the parties failed to accomplish
either option within 30 days, the court would appoint a receiver on Bonita’s request “to
address the disposition of the Dale Street property.” Citing “the nature and scope of post
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Because several of the parties share the same surnames, we refer to them by
their first names to avoid confusion. We mean no disrespect.
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judgment activities that may take place,” the judgment also specified that the court
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“retains jurisdiction of this matter.”
Don and Lynn moved for a new trial. Due to the retirement of the trial
judge, a different judge granted that motion. Bonita appealed the order granting the new
trial motion. (See companion case, McPherson v. Southard et al. (Aug. 14, 2023,
G060577 [ nonpub. opn.].) Meanwhile, Don and Lynn filed this protective cross-appeal
from the judgment.
In their opening brief related to this appeal, Don and Lynn took the position
the judgment is final and appealable. However, our independent review of the record
suggested the judgment may not be appealable. Since this issue had not been briefed
prior to oral argument, we vacated submission and invited the parties to provide
supplemental briefing on it. We now conclude the judgment at issue here, despite its
label, is not a final judgment; therefore, it is not appealable.
It is well-established that a final judgment is appealable; an interlocutory
judgment generally is not. (Code Civ. Proc., § 904.1, subd. (a)(1).) Our Supreme Court
has articulated the standard for determining whether a judgment is final or interlocutory:
“‘where no issue is left for future consideration except the fact of compliance or
noncompliance with the terms of the first decree, that decree is final, but where anything
further in the nature of judicial action on the part of the court is essential to a final
determination of the rights of the parties, the decree is interlocutory.’” (Griset v. Fair
Political Practices Com. (2001) 25 Cal.4th 688, 698.)
The substance and effect of the judgment, not its label or form, determine
its nature. (Griset v. Fair Political Practices Com., supra, 25 Cal.4th at p. 698; 9 Witkin,
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This section of the judgment erroneously references Code of Civil
Procedure section 664.6, which governs judgments entered pursuant to certain
settlements.
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Cal. Procedure (6th ed. 2021) Appeal § 151, p. 222 [if a judgment leaves some judicial
act yet to be done, “regardless of its formal appearance or designation as a final
judgment, it is interlocutory only, and not appealable”]; see, e.g., Baker v. Castaldi
(2015) 235 Cal.App.4th 218, 223-224 [because “judgment” left open amount of punitive
damages for future consideration, it was interlocutory and not appealable]; Yeboah v.
Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 448-449 [because judgment left
open for future adjudication the issue of past and future payments, called for an audit, and
required the appointment of a special master in the event of disputes over the accounting,
it was interlocutory and not appealable]; Kinoshita v. Horio (1986) 186 Cal.App.3d 959,
964-965 [dismissing appeal from a judgment directing the dissolution of a partnership
and sale of its assets by a receiver, noting the judgment was not final because it did not
determine the manner for allocating expenses among the defendants or provide a formula
for distributing the sale proceeds].)
In this case, the judgment on its face requires both the parties and the trial
court to complete a number of additional steps which require further judicial action.
Specifically, it requires the production of financial records; the resolution of the amount
Defendants must reimburse Western Tap; the resolution of the status of the Dale Street
property; and the potential appointment of a receiver to address these issues. Because
substantial additional judicial involvement is essential to the final determination of the
parties’ rights, the judgment is interlocutory and not appealable.
In any event, even if the judgment were somehow appealable, our ruling in
the companion appeal (McPherson v. Southard, supra, G060577) renders this appeal
moot. In that opinion, we reverse the trial court’s order granting a new trial, directed the
court on remand to enter an amended judgment that omits certain provisions that violate
nonparties’ rights to due process, and granted the court discretion to include in the
amended judgment any relief it deems appropriate for Don and Lynn’s usurpation of the
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corporate opportunity. The parties of course retain the right to appeal any final judgment
entered on remand.
DISPOSITION
The appeal is dismissed. In the interest of justice, the parties shall bear
their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
GOETHALS, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
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