Three Challenges Rejected by Appellate Court.
In Guess v. The Significance Foundation, Case No. D060100 (4th Dist., Div. 1 June 5, 2013) (unpublished), individual, an officer and director of a company, prevailed in a government civil rights action seeking injunctive relief, as did the company. Then, a dispute arose as to whether individual was entitled to D&O indemnification by the company for $131,000 in fees which individual paid for his defense, mainly through loans from third parties. The lower court awarded plaintiff $95,000 in fees, to be paid by company under an indemnification clause.
Company raised three arguments on appeal, all rejected.
First, it argued that the indemnity was not triggered because the director/officer did not act in good faith. However, the trial court found otherwise and company’s own pre-controversy conduct contradicted that this was so--it advanced defense costs to the individual for quite some time.
Second, company argued that individual did not “incur” legal fees because he paid for the fees through some loans by third parties. Get outta here, still “incurred” ruled the appellate court.
Last, indemnitor argued that the bills were inadmissible. However, given that a competent Evidence Code section 1271 custodian declaration was provided, the documents were business records; nothing indicated a live witness was required given the competency of the 1271 declaration.
BLOG UNDERVIEW--The individual here was a proponent of xelan? Know what that is? Answer: A program for medical professionals that is part financial management/planning, part tax planning, and part life philosophy
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