Mart v. Severson

In Mart v. Severson (2002) 95 Cal.App.4th 521, the Court held the lack of a noncompetition agreement between shareholders did not support the refusal to value the corporation as a going concern. Consequently, substantial evidence did not support the court's finding the fair value on the valuation date was the corporation's piecemeal liquidation value. In reaching that conclusion, we observed: " Section 2000 establishes an objective process for valuing a corporation after dissolution proceedings have commenced. The fair value is the liquidation value. But liquidation value can mean going concern value if the corporation could be sold as a going concern in liquidation. Thus, the hypothetical question posed by section 2000 is whether the entire corporation could have been sold as a going concern in liquidation on the valuation date." ( Id. at p. 533.) In Mart v. Severson, supra, 95 Cal.App.4th 521, we supported the use of a hypothetical sale model in order to conduct a section 2000 fair value analysis. We acknowledged that the question of whether liquidation value could mean going concern value rested upon hypothetical considerations: "To answer that question, the appraisers considered hypothetical reasonable sellers, hypothetical reasonable buyers, and a hypothetical forced sale liquidation environment." ( Id. at p. 533.) Even evidence that one party would not act according to these assumptions by signing a covenant not to compete was not relevant to the hypothetical scenario the appraisers were to consider. (Ibid.) " 1 When making a section 2000 fair value determination, appraisers should always assume a hypothetical seller's covenant not to compete just as they should assume that the parties to the hypothetical sale will negotiate the other requisite terms to a sales agreement. Indeed, without these assumptions, it would be impossible to construct a hypothetical sale pursuant to which a fair value could be determined." ( Id. at p. 534.)