Tritek Telecom, Inc. v. Superior Court (Mak)
Filed January 9, 2009
Fourth District; Division One
Cite as 2009 SOS 153

Board Director Denied Access to Corporation Records, Order Vacated

Tritek Telecom, Inc. (Tritek) is a California corporation with two equal shareholders, Andre Rerolle and Prospect Development Inc. (Prospect), a company solely owned by Chik-Lun Mak.

Tritek initially had three members on its board of directors, Alvin Ly, Rerolle and Mak. In May 2007, Rerolle and Mak hired L. Michael Wilson of the Apollo Law Group to act as Tritek's corporate counsel after Ly resigned from the board, leaving Rerolle and Mak as the sole members of Tritek's board of directors.

The following month, disputes arose between Rerolle and Mak regarding the operation of Tritek and management responsibilities.

Mak complained against Rerolle and charged him with the following;

• That Rerolle improperly locked him out of Tritek facilities


• stopped paying his salary


• misappropriated Tritek assets

In turn, Rerolle claimed that Mak engaged in numerous corporate improprieties.

Mak later filed a complaint seeking the removal of Andre Rerolle as a director for Tritek and a separate petition for the appointment of a provisional director. Mak also filed a petition seeking to enforce his right as a director of Tritek to inspect Tritek’s books and records.

Mak also filed a shareholder action seeking return of his $410,000 investment and damages.

Tritek opposed the inspection and argued that the petition sought attorney-client privileged documents generated by Tritek and Rerolle in defense of Mak’s related actions.

The San Diego Superior Court issued a “peremptory writ of mandate” ordering the corporation to produce case files relating to Tritek’s involvement in any litigation, and all communications between counsel and the corporation.

The parties settled the underlying case while Tritek’s appeal was pending, but they requested a decision to resolve the application of the attorney-client privilege to a director’s right to inspect corporate documents.

On review, the Fourth District court of appeals directed the trial court to vacate its order compelling Tritek Telecom Inc. to disclose its case files and communications with counsel to Chik-Lun Mak.

The court explained that although Corporations Code grants corporate directors an "absolute right" to "inspect and copy all [corporate] books, records and documents of every kind," a corporate director does not have a right to access documents covered by attorney-client privilege that were “generated in defense of a suit for damages that director filed against corporation”.

The Fourth District Court of Appeal therefore clarified that a corporate director’s right to inspect general corporate documents does not encompass those protected by the attorney-client privilege that were generated in defense of a suit the director filed against the corporation.