By codifying the standard of performance of directors in Corporations Code Section 309 did the legislature create a liability by law?
But first, why would this even be a question? It is a question because California Code of Civil Procedure establishes a three year statute of limitations for "actions against directors, shareholders, or members of a corporation, to recover a penalty or forfeiture imposed, or to enforce a liability created by law." Cal. Civ. Proc. § 359.
The Courts of Appeal have been disagreed on whether Section 309 is a liability creating statute for purposes of determining the applicable statute of limitations. In Smith v. Superior Court, 217 Cal. App. 3d 950 (1990), the Fourth District Court of Appeal held that it was. A few years later, the Sixth Appellate District came to the opposite conclusion in Briano v. Rubio, 46 Cal. App. 45th 1167 (1996). A decade later, the Second Appellate District sided with the Sixth Appellate District, holding that Smith was "inconsistent with the principles announced by our Supreme Court, the Courts of Appeal, and the courts of other jurisdictions". Lehman v. Superior Court, 145 Cal. App. 4th 109, 116 (2006).