demand requirement in California

2017This demand requirement was recognized over 120 years ago by the Supreme Court (see Hawes v . [ City of Oakland ] (1881) 104 U.S. 450 , 26 L.Ed. 827 ), and is codified in California (see Corp. Code, § 800, subd. (b)(2) ; hereafter, § 800(b)(2) ). [ 1 ] Under section 800(b)(2), a *15 plaintiff must plead 'with particularity' the attempts that were made to secure board action before bringing suit, or, alternatively, the factual basis upon which the plaintiff believes that a demand on the board was unnecessary, i.e., that a demand would have been futile.

2017This demand requirement was recognized over 120 years ago by the Supreme Court (see Hawes v . [ City of Oakland ] (1881) 104 U.S. 450 , 26 L.Ed. 827 ), and is codified in California (see Corp. Code, § 800, subd. (b)(2) ; hereafter, § 800(b)(2) ). [ 1 ] Under section 800(b)(2), a *15 plaintiff must plead 'with particularity' the attempts that were made to secure board action before bringing suit, or, alternatively, the factual basis upon which the plaintiff believes that a demand on the board was unnecessary, i.e., that a demand would have been futile.

2022(See In re Mugica, supra, 69 Cal.2d at pp. 523–524 [Speedy trial rights require “notice be given that a charge has been made against the prisoner within a reasonable time thereafter so that if he wishes to do so he may avail himself of the remedy provided therein”].) The record is void of any evidence defendant made the proper demand to the district attorney in case No. MCR055012 to commence running of the 90-day period. (§ 1381.) Accordingly, the trial court properly denied defendant’s section 1381 motion to dismiss and did not set the matter for a speedy trial hearing because “defendant had

1978(See In re Mugica, supra, 69 Cal.2d 516, 524 ; 2 Cal. Criminal Law Practice (Cont.Ed.Bar 1969) § 23.28, p. 498; ABA Standards, Speedy Trial (Approved Draft 1968) std. 3.1 and com. 3.1(a), pp. 34-35.) Accordingly, when the prosecuting authorities know that the person charged with a criminal offense in their jurisdiction is serving a prison term in a California penal institution, they should either promptly take steps to obtain the prisoner for trial on the pending charge or make certain that the prisoner has notice of the pending charge by filing a “detainer” or “hold” with the appropriate auth

2017Braddock was a shareholder derivative action in which the plaintiff's first amended complaint was dismissed in its entirety, without prejudice, for failing to comply with the demand requirement of Delaware's Court of Chancery rule 23.1. 10 *25 ( Braddock , supra , 906 A.2d at p. 779 .) Nearly two years later, the plaintiff sought leave to file a second amended complaint.

2017Braddock was a shareholder derivative action in which the plaintiff's first amended complaint was dismissed in its entirety, without prejudice, for failing to comply with the demand requirement of Delaware's Court of Chancery rule 23.1. 10 *25 ( Braddock , supra , 906 A.2d at p. 779 .) Nearly two years later, the plaintiff sought leave to file a second amended complaint.

2017The standing requirements for a derivative action, including the demand requirement, "reflect the limited adverse relationship between the shareholder plaintiff and the corporation." ( Patrick , supra , 167 Cal.App.4th at p. 1004 , 84 Cal.Rptr.3d 642 .) It follows that while the corporation cannot "challenge the merits of a derivative claim filed on its behalf and from which it stands to benefit," it "may assert defenses contesting the plaintiff's right or decision to bring suit, such as asserting the shareholder plaintiff's lack of standing or *21 the [special litigation committee] defense."

2017The standing requirements for a derivative action, including the demand requirement, "reflect the limited adverse relationship between the shareholder plaintiff and the corporation." ( Patrick , supra , 167 Cal.App.4th at p. 1004 , 84 Cal.Rptr.3d 642 .) It follows that while the corporation cannot "challenge the merits of a derivative claim filed on its behalf and from which it stands to benefit," it "may assert defenses contesting the plaintiff's right or decision to bring suit, such as asserting the shareholder plaintiff's lack of standing or *21 the [special litigation committee] defense."

2008The plaintiff in Doran , who had encountered barriers to his wheelchair in the defendant's restaurants, sued under the ADA and then settled his claims in an agreement designating him as the prevailing party for purposes of attorney fees. [3] The district court, without noting that we had described the demand requirement as a "limitation *256 on the catalyst rule" ( Graham, at p. 577), misread Graham as "adopt[ing] the view that, to recover attorneys' fees in a private attorney general case, a plaintiff must have engaged in a reasonable attempt to settle his or her dispute with the defendant be

2008Instead, in announcing the demand requirement we described it as a "limitation on the catalyst rule. " ( Id., at p. 577, italics added; see also id., at p. 575 ["limitation[] on the catalyst theory"].) Nor did we discuss Grimsley in our opinion; we cited the case without comment in describing the Attorney General's suggestion that we adopt a demand requirement in catalyst cases. ( Graham, at p. 577.) The plaintiff in Grimsley, supra, 169 Cal.App.3d 960 , sought attorney fees under section 1021.5 after winning a judgment setting aside a county's approval of a general plan and mandating complian

2008The plaintiff in Doran , who had encountered barriers to his wheelchair in the defendant’s restaurants, sued under the ADA and then settled his claims in an agreement designating him as the prevailing party for purposes of attorney fees. 3 The district court, without noting that we had described the demand requirement as a “limitation *256 on the catalyst rule” (Graham, at p. 577), misread Graham as “adopting] the view that, to recover attorneys’ fees in a private attorney general case, a plaintiff must have engaged in a reasonable attempt to settle his or her dispute with the defendant before

2008The plaintiff in Doran , who had encountered barriers to his wheelchair in the defendant's restaurants, sued under the ADA and then settled his claims in an agreement designating him as the prevailing party for purposes of attorney fees. [3] The district court, without noting that we had described the demand requirement as a "limitation *256 on the catalyst rule" ( Graham, at p. 577), misread Graham as "adopt[ing] the view that, to recover attorneys' fees in a private attorney general case, a plaintiff must have engaged in a reasonable attempt to settle his or her dispute with the defendant be

2008(Doran, at pp. 1033-1034.) The Ninth Circuit reversed, holding that the district court had “denied fees by subjecting [the plaintiff] to a requirement not found in the ADA or the case law.” (Doran v. Del Taco, Inc. (9th Cir. 2007) 237 Fed.Appx. 148, 149 .) The State argues that a 1985 lower court decision, Grimsley v. Board of Supervisors, supra, 169 Cal.App.3d 960 (Grimsley), established the general rule that no plaintiff may ever recover fees under section 1021.5 without having attempted to settle before resorting to litigation, and that 19 years later in Graham we merely “applied the holdin

2008The plaintiff in Doran , who had encountered barriers to his wheelchair in the defendant's restaurants, sued under the ADA and then settled his claims in an agreement designating him as the prevailing party for purposes of attorney fees. [3] The district court, without noting that we had described the demand requirement as a "limitation *256 on the catalyst rule" ( Graham, at p. 577), misread Graham as "adopt[ing] the view that, to recover attorneys' fees in a private attorney general case, a plaintiff must have engaged in a reasonable attempt to settle his or her dispute with the defendant be

2008(Doran, at pp. 1033-1034.) The Ninth Circuit reversed, holding that the district court had “denied fees by subjecting [the plaintiff] to a requirement not found in the ADA or the case law.” (Doran v. Del Taco, Inc. (9th Cir. 2007) 237 Fed.Appx. 148, 149 .) The State argues that a 1985 lower court decision, Grimsley v. Board of Supervisors, supra, 169 Cal.App.3d 960 (Grimsley), established the general rule that no plaintiff may ever recover fees under section 1021.5 without having attempted to settle before resorting to litigation, and that 19 years later in Graham we merely “applied the holdin

2008The plaintiff in Doran , who had encountered barriers to his wheelchair in the defendant's restaurants, sued under the ADA and then settled his claims in an agreement designating him as the prevailing party for purposes of attorney fees. [3] The district court, without noting that we had described the demand requirement as a "limitation *256 on the catalyst rule" ( Graham, at p. 577), misread Graham as "adopt[ing] the view that, to recover attorneys' fees in a private attorney general case, a plaintiff must have engaged in a reasonable attempt to settle his or her dispute with the defendant be

1998Fourteen years ago in Powers v. Commission on Professional Competence (1984) 157 Cal.App.3d 560, 569 , [ 204 Cal.Rptr. 185 ], this court held that the parties could “ ‘stipulate that the necessary ceremonial has been observed’ ” and that such a stipulation would satisfy the 60-day requirement of section 44944, subdivision (a).

1998Fourteen years ago in Powers v. Commission on Professional Competence (1984) 157 Cal.App.3d 560, 569 , [ 204 Cal.Rptr. 185 ], this court held that the parties could “ ‘stipulate that the necessary ceremonial has been observed’ ” and that such a stipulation would satisfy the 60-day requirement of section 44944, subdivision (a).

1996The trial court therefore erred in enforcing the prior demand requirement stated in People v. McGee, supra, 19 Cal.3d 948 , and People v. Jordan, supra, 86 Cal.App.3d 529 . 6 Disposition The judgment is reversed.

1980(People v. Jordan, supra, 86 Cal.App.3d at p. 536 , citing People v. McGee, supra, 19 Cal.3d at p. 965.) The evidence was more than sufficient to support the court’s finding that the state substantially complied with the demand requirement of section 11483.

1992Alternatively, applying the Barker v. Wingo factors, the majority said: “Even were we to hold that defendant had not waived his right to a speedy trial, however, we would conclude that he was not denied this right and that the superior court erred in dismissing the present case.” (Id. at p. 314, italics original.) The plurality opinion'relied on Barker v. Wingo's language (“[I]f delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside.” (Barker v. Wingo, supra, 407 U.S. at p. 529 )), analogous sanctions visited on fugitiv

1992Alternatively, applying the Barker v. Wingo factors, the majority said: “Even were we to hold that defendant had not waived his right to a speedy trial, however, we would conclude that he was not denied this right and that the superior court erred in dismissing the present case.” (Id. at p. 314, italics original.) The plurality opinion'relied on Barker v. Wingo's language (“[I]f delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside.” (Barker v. Wingo, supra, 407 U.S. at p. 529 )), analogous sanctions visited on fugitiv

1980“The test under the California Constitution, as set forth in People v. Godlewski (1943) 22 Cal.2d 677 .. .and the cases following it, is a demand test.

1977(Barker v. Wingo (1972) 407 U.S. 514, 530 [ 33 L.Ed.2d 101, 116-117 , 92 S.Ct. 2182 ].) The test under the California Constitution, as set forth in People v. Godlewski (1943) 22 Cal.2d 677 [ 140 P.2d 381 ] and the cases following it, is a demand test.

1975(Baldwin v. Napa etc. Wine Co., 137 Cal. 646 [ 70 P. 732 ]; Murillo v. Toole, 47 Cal.App.2d 725 [ 118 P.2d 895 ].) Here the affidavit .claimed $60,000, thus the $30,000 undertaking satisfied the statute.

1941In the case of Baldwin v. Napa & Sonoma Wine Co., 137 Cal. 646 [ 70 Pac. 732 ], the Supreme Court said: “The basis for the writ is the affidavit, and the clerk must look to that alone for the purpose of determining the amount for which the sheriff is to levy under the writ, as well as the amount for which an undertaking is to be given. ’ ’ To the same effect see Nail v. Superior Court, 11 Cal. App. 27 [ 103 Pac. 902 ], The affidavit for attachment here sets forth the indebtedness at the sum of $14,697, with nothing said about interest or costs.

1975(Baldwin v. Napa etc. Wine Co., 137 Cal. 646 [ 70 P. 732 ]; Murillo v. Toole, 47 Cal.App.2d 725 [ 118 P.2d 895 ].) Here the affidavit .claimed $60,000, thus the $30,000 undertaking satisfied the statute.

1941In the case of Baldwin v. Napa & Sonoma Wine Co., 137 Cal. 646 [ 70 Pac. 732 ], the Supreme Court said: “The basis for the writ is the affidavit, and the clerk must look to that alone for the purpose of determining the amount for which the sheriff is to levy under the writ, as well as the amount for which an undertaking is to be given. ’ ’ To the same effect see Nail v. Superior Court, 11 Cal. App. 27 [ 103 Pac. 902 ], The affidavit for attachment here sets forth the indebtedness at the sum of $14,697, with nothing said about interest or costs.

2025(See Mansouri v. Superior Court (2010) 181 Cal.App.4th 633 , 640–642 (Mansouri).)4 JJ Nguyen disputes application of the demand requirement, relying on Hyundai Amco America, Inc. v. S3H, Inc. (2014) 232 Cal.App.4th 572 , 574– 578 (Hyundai) on the ground that Camberos sued before it moved to compel arbitration.

2025(See Mansouri v. Superior Court (2010) 181 Cal.App.4th 633 , 640–642 (Mansouri).)4 JJ Nguyen disputes application of the demand requirement, relying on Hyundai Amco America, Inc. v. S3H, Inc. (2014) 232 Cal.App.4th 572 , 574– 578 (Hyundai) on the ground that Camberos sued before it moved to compel arbitration.

2024Substantial Compliance Argument Finally, for the first time in her appellate reply brief Burton contends that she has “substantially complied” with the demand requirement of section 54960.1 because Severson’s letters brought the alleged Brown Act violation to the attention of the City defendants. “ ‘Where a reasonable attempt has been made to comply with a statute in good faith, . . . the doctrine of substantial compliance holds that the statute may be deemed satisfied. . . .’ . . . ‘Substantial compliance means “ ‘actual compliance in 6 SDG&E filed evidentiary objections to statements in Agui

2024(West Hills Farms, Inc. v. RCO Ag Credit, Inc. (2009) 170 Cal.App.4th 710, 715 . ) 25 The demand requirement compels plaintiffs to attempt to persuade corporate managers to do what is fair and right.

2024Because “[t]he doctrine of substantial compliance . . . cannot . . . remedy a plaintiff's failure to comply meaningfully with the statute” (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1083 ) and applies only “where claimant has made a bona fide attempt to comply” (Stromberg, Inc. v. Los Angeles County Flood Control Dist. (1969) 270 Cal.App.2d 759, 762 ), Burton’s failure to attempt any meaningful compliance precludes her from relying on the doctrine of substantial compliance.8 8 In connection with her contention that she substantially complied with the demand re

2024(Eggers v. National Radio Co. (1929) 208 Cal. 308, 313 ; see Corp. Code, § 800, subd. (b)(2) [description of demand on board must be pleaded “with particularity”].) In deference to the managerial role of directors and to curb potential abuse, shareholders asserting a derivative claim must make a threshold showing they made a presuit demand on the board to take the desired action.