Section 309 of the California Corporations Code specifies the standard of performance applicable to directors in performing their duties as directors of corporations organized under the California General Corporation Law.  The Nonprofit Corporation Laws include analogous provisions.  Cal. Corp. Code §§ 5231, 7231 and 9241.  Given the generality of these provisions, they would appear to applicable to director decisions involving the election, selection or nomination of directors.

Oddly, however, the Nonprofit Corporation Laws specifically provide that these statutes "govern the duties of directors as to any acts or omissions in connection with the election, selection, or nomination of directors.  Cal. Corp. Code §§ 5232, 7232 and 9242.   This begs the question of why the legislature believed it necessary to include these provisions in the Nonprofit Corporation Laws but not the General Corporation Law.   

This statutory inconsistency could conceivably lead to an argument that directors of corporations organized under the General Corporation Law are not subject to Section 309.   But if a director's conduct in approving the selection or nomination of a director is not governed by Section 309, does that mean that the director is subject to no standard whatsoever?  For example, may a director approve with impunity the nomination of someone who they know to be completely incompetent?  

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