- three female directors, if its number of directors is six or more;
- two female directors, if its number of directors is five; or
- one female director, if its number of directors is four or fewer.
First offenders would face penalties equal to the average annual cash compensation for the directors of the corporation. The penalty for repeat offenders would be three times the average annual cash compensation of the directors.
The fact that the bill penalizes the corporation is remarkable because it is impossible for the corporation to effect compliance. Directors are elected by the shareholders. Depending upon the applicable corporate code, the articles and bylaws, the board may fill vacancies on the board.
California Civil Code Section 3531 provides that “[t]he law never requires impossibilities.” Would impossibility be a defense then to the statute? According to a California Supreme Court decision issued last week, the answer is probably not by itself. In National Shooting Sports, Inc. v. California, 2018 Cal. LEXIS 4696, the Supreme Court held:
"[Civil Code Section 3531] is an interpretive aid that occasionally authorizes an exception to a statutory mandate in accordance with the Legislature’s intent behind the mandate. The maxim has never been recognized, and we do not recognize it today, as a ground for invalidating a statutory mandate altogether."
This leaves open the possibility that Section 3531 coupled with a constitutional claim might carry the day. However, that would be the subject of another post.