LLC's Failure To File Cross-Complaint Dooms Derivative Action
Although the members of a limited liability may file a derivative action, the right of action belongs to the LLC and not to the members themselves. This fundamental principle had real consequences for the plaintiffs in Heshejin v. Rostami, 2020 Cal. App. LEXIS 887.
The case involved the plaintiffs' "double derivative" claims on behalf of an LLC that had been sued by another company in a prior action. The plaintiffs' derivative claims admittedly existed at the time of the prior lawsuit and were related to the cause of action against the LLC. Nonetheless, the LLC failed to file any cross-complaint in that prior action despite California's compulsory cross-complaint statute. Cal. Code Civ. Proc. § 426.30. This failure barred the LLC from asserting its claims against the plaintiff in the prior action in a new action. This in turn debarred the claims:
"Because the right of action belongs to the corporation, not its shareholders or members, it may be forfeited, waived, or adjudicated by the direct actions of the corporation."
What made this a "double derivative" action? The plaintiffs were minority owners of a limited partnership that wholly-owned the LLC. A "double derivative" action is an action brought by a shareholder of a parent company to enforce a cause of action by a subsidiary company.