Wirum v. Greene Radovsky Maloney Share & Hennigh, LLP

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MEMORANDUM RE CROSS MOTIONS
FOR SUMMARY JUDGMENT 	-1-
UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
SDR CAPITAL MANAGEMENT, INC.,
Debtor.
ANDREA A. WIRUM, TRUSTEE,
Plaintiff,
vs.
GREENE RADOVSKY MALONEY SHARE 	&
HENNIGH, LLP,
Defendant.
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Case No. 05-34008 TEC
Chapter 7
Adv. Proc. No. 07-3074 TC
MEMORANDUM RE CROSS MOTIONS FOR SUMMARY JUDGMENT
The court held a hearing on February 29, 2008 regarding the
parties’ cross motions for summary judgment. 	Dennis D. Davis
appeared for Plaintiff. 	James F. Fotenos and Russell D. Pollock
appeared for Defendant. 	Upon due consideration, and for the
reasons stated below, both motions are denied.
//
Signed and Filed: March 03, 2008
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
March 04, 2008
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 07-03074 Doc# 27 Filed: 03/03/08 Entered: 03/04/08 14:52:04 Page 1 of 3

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MEMORANDUM RE CROSS MOTIONS
FOR SUMMARY JUDGMENT 	-2-
A triable issue of fact exists as to whether the parties to
the release intended it to apply to the present action against
Defendant. 	Summary judgment cannot be granted for Plaintiff,
because the language describing by category the parties and claims
released covers the claims raised against Defendant in the present
action, and because Suttle had an incentive to secure Defendant’s
release. 	Summary judgment cannot be granted for Defendant, because
the present action was pending on the date the release was
executed, and the release permits the prosecution of actions by
Plaintiff without stating that the present action is to be
released. 	It is because there is some evidence that the parties
did not intend the release to apply to Defendant, that the present
case is distinguishable from General Motors Corp. v. Superior
Court, 12 Cal. App. 4th 435 (1993).
Neither party is entitled to summary judgment as to whether
SDR was obligated to indemnify Suttle under section 317(d) of the
Corporations Code. 	Although a judicial decision is not required
for an administrative investigation to be decided “on the merits”
within the meaning of section 317(d), a triable issue of fact
exists as to whether the SEC investigation at issue here was
resolved on the merits in favor of Suttle.
Neither party is entitled to summary judgment as to whether
SDR agreed to indemnify Suttle. 	A triable issue of fact exists as
to whether indemnification was conditioned upon receipt of certain
payments from Woodall and Garland.
**END OF MEMORANDUM**
Case: 07-03074 Doc# 27 Filed: 03/03/08 Entered: 03/04/08 14:52:04 Page 2 of 3

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Court Service List
Dennis D. Davis, Esq.
Goldberg, Stinnett, Davis & Linchey
44 Montgomery Street, Suite 2900
San Francisco, CA 94104
James F. Fotenos, Esq.
Russell D. Pollock, Esq.
Greene Radovsky Maloney Share & Hennigh LLP
Four Embarcadero Center, Suite 4000
San Francisco, CA 94111
Case: 07-03074 Doc# 27 Filed: 03/03/08 Entered: 03/04/08 14:52:04 Page 3 of 3