Barton
Barton v. Khan
Opinion
Opinion
Armstrong, J.
FACTS AND PROCEDURAL SUMMARY
Plaintiff and appellant Kenneth Barton, a shareholder of defendant RPost International Limited (RPost) was, until 2004, also an employee, officer and director of the company. Defendants Zafar Khan, Terrance Tomkow and Henri Isenberg (together, the Individual Defendants) were, during the relevant time period, officers and directors of RPost.
Barton’s original complaint alleged three causes of action: intentional and negligent breach of fiduciary duty against the Individual Defendants, and Labor Code violations against RPost. On August 19, 2005, RPost filed its answer and the Individual Defendants filed a demurrer to the complaint, contending that Barton’s causes of action against them were derivative in nature, and therefore were required to be brought by the corporation or by way of a derivative lawsuit pursuant to Corporations Code section 800, subdivision (b). They also argued that, to the extent Barton’s claims were direct rather than derivative, they lacked merit by reason of the business judgment rule contained in Corporations Code section 309. Hearing on the demurrer was set for September 19, 2005.