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I was perplexed by Judge Cindee F. Mayfield’s repeated
references to “derivate claims” in a recent unpublished
opinion – JBB Investment Partners v. Fair, Cal. Ct.
of Appeal Case No. No. A160098 (June 9, 2022). Was this a
typographical error or was Judge Mayfield’s diction
correct?
Although I was familiar with the noun,
“derivate”, I was unaware that it is also
an adjective having the same meaning as
“derivative”. Judge Mayfield’s opinion informs
us that the case involved, at least in part, an action under
Section 800 of the California Corporations Code. That statute
governs actions “instituted or maintained in right of any
domestic or foreign corporation”. These are commonly
referred to as “derivative actions” but the statute does
not denominate them as such. Therefore, Judge Mayfield’s
diction is not inconsistent with the General Corporation Law.
It is also not without (unpublished)
precedent. See, e.g., Baharian-Mehr
v. SGRL Investments, Inc., Cal. Ct.
Appeal Case No. G047929 (March 10, 2014) (“The Plaintiff did
not plead, nor did he prove the requirements to maintain a
derivative action and did not meet the requirement under
Corporations Code section 800(b)(2) to proceed with derivate
claims.”).
Both “derivate” and “derivative” are derived
from the Latin words de and rivo,
meaning from the stream. The Romans combined these to form
the verb derivare which means to lead off or
transfer.
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