This case was last updated from Los Angeles County Superior Courts on 06/02/2019 at 04:25:59 (UTC).

BENJAMIN CALHOUN VS AQUA TECH WATER MANAGEMENT INC

Case Summary

On 06/08/2017 BENJAMIN CALHOUN filed an Other lawsuit against AQUA TECH WATER MANAGEMENT INC. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judges overseeing this case are EDWARD B. MORETON, JR., DEBRE K. WEINTRAUB, DEBRE KATZ WEINTRAUB, EDWARD B. MORETON and THERESA M. TRABER. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9815

  • Filing Date:

    06/08/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

EDWARD B. MORETON, JR.

DEBRE K. WEINTRAUB

DEBRE KATZ WEINTRAUB

EDWARD B. MORETON

THERESA M. TRABER

 

Party Details

Plaintiff and Petitioner

CALHOUN BENJAMIN

Appellant

AQUA TECH WATE MANAGEMENT INC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

HAINES PAUL K.

HAINES LAW GROUP APC

LIDMAN SCOTT MICHAEL

HAINES PAUL KEITH

Appellant Attorney

ODDENINO MICHAEL LOUIS

Other Attorneys

ODDENINO MICHAEL L. ESQ.

 

Court Documents

PLAINTIFF/RESPONDENT BENJAMIN CALHOUN'S OPPOSITION TO DEFENDANT/APPELLANT AQUA- TECH WATER MANAGEMENT INC.'S MOTION FOR SUMMARY JUDGMENT

1/22/2018: PLAINTIFF/RESPONDENT BENJAMIN CALHOUN'S OPPOSITION TO DEFENDANT/APPELLANT AQUA- TECH WATER MANAGEMENT INC.'S MOTION FOR SUMMARY JUDGMENT

DECLARATION OF PAUL K. HAINES IN SUPPORT OF PLAINTIFF/RESPONDENT BENJAMIN CALHOUN'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

1/22/2018: DECLARATION OF PAUL K. HAINES IN SUPPORT OF PLAINTIFF/RESPONDENT BENJAMIN CALHOUN'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Minute Order

9/27/2018: Minute Order

Minute Order

12/19/2018: Minute Order

Notice

12/21/2018: Notice

Minute Order

1/16/2019: Minute Order

Notice of Lodging

2/14/2019: Notice of Lodging

Proof of Service by Mail

2/14/2019: Proof of Service by Mail

Proof of Service by Mail

2/14/2019: Proof of Service by Mail

Proof of Service by Mail

2/14/2019: Proof of Service by Mail

Proof of Service by Mail

2/14/2019: Proof of Service by Mail

Exhibit List

2/15/2019: Exhibit List

Trial Brief

2/15/2019: Trial Brief

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

2/19/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Minute Order

2/19/2019: Minute Order

Minute Order

3/1/2019: Minute Order

Notice

3/1/2019: Notice

Unknown

4/4/2019: Unknown

104 More Documents Available

 

Docket Entries

  • 05/21/2019
  • DocketReply (to Defendant Aqua-Tech Water Management, Inc.'s Post-Trial Closing Argument Brief); Filed by Benjamin Calhoun (Plaintiff)

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  • 05/21/2019
  • DocketTrial Brief; Filed by Aqua Tech Wate Management Inc (Appellant)

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  • 05/07/2019
  • DocketTrial Brief; Filed by Benjamin Calhoun (Plaintiff)

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  • 05/07/2019
  • DocketStipulation and Order (to Continue Deadlines to File Post-Trial Closing Argument Briefs; [Proposed] Order Thereon); Filed by Benjamin Calhoun (Plaintiff)

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  • 05/07/2019
  • DocketTrial Brief; Filed by Aqua Tech Wate Management Inc (Appellant)

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  • 05/07/2019
  • DocketProof of Service (not Summons and Complaint); Filed by Aqua Tech Wate Management Inc (Appellant)

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  • 05/07/2019
  • DocketNotice of Lodging (of Trial Transcripts); Filed by Benjamin Calhoun (Plaintiff)

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  • 05/07/2019
  • DocketProof of Service (not Summons and Complaint); Filed by Benjamin Calhoun (Plaintiff)

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  • 04/08/2019
  • Docketat 09:00 AM in Department O, Theresa M. Traber, Presiding; Non-Jury Trial

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  • 04/05/2019
  • Docketat 09:00 AM in Department O, Theresa M. Traber, Presiding; Non-Jury Trial

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209 More Docket Entries
  • 07/17/2017
  • DocketProof of Service (not Summons and Complaint); Filed by Aqua Tech Wate Management Inc (Appellant)

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  • 07/11/2017
  • DocketCase Management Statement; Filed by Benjamin Calhoun (Plaintiff)

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  • 07/11/2017
  • DocketCASE MANAGEMENT STATEMENT

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  • 07/07/2017
  • DocketStatement of the Case; Filed by Aqua Tech Wate Management Inc (Appellant)

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  • 07/07/2017
  • DocketProof of Service by 1st Class Mail

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  • 07/07/2017
  • DocketCASE MANAGEMENT STATEMENT

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  • 06/13/2017
  • DocketProof of Service (not Summons and Complaint); Filed by Aqua Tech Wate Management Inc (Appellant)

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  • 06/13/2017
  • DocketProof of Service by 1st Class Mail

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  • 06/08/2017
  • DocketNOTICE OF APPEAL

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  • 06/08/2017
  • DocketNotice of Appeal; Filed by null

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Tentative Rulings

Case Number: ****9815    Hearing Date: September 10, 2020    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

BENJAMIN CALHOUN, an individual,

Plaintiff,

vs.

AQUA TECH WATER MANAGEMENT, INC.,

Defendant.

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CASE NO: ****9815

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS

Dept. U

8:30 a.m.

September 10, 2020

I. BACKGROUND

Aqua Tech Water Management (Defendant) initiated this lawsuit against Benjamin Calhoun (Plaintiff) on June 8, 2017 by filing an appeal of an Order, Decision, or Award of the Labor Commissioner issued in favor of Plaintiff on May 24, 2017. Plaintiff asserted claims for: (1) minimum wage violations; (2) failure to pay overtime premiums; (3) denial of meal and rest breaks; (4) failure to provide legally compliant wage statements; (5) waiting time penalties; and (6) unfair or unlawful business practices under California Business and Professions Code section 17200 et seq.

This matter went to trial on April 4, 5, 8, and 9, 2019 and resulted in a judgment in favor of Plaintiff. The Court found Defendant and William Keller, as Defendant’s alter-ego, jointly and severally liable for unpaid wages, commissions, and statutory damages under Wage Order 16, Labor Code sections 226, 512, and 515(d).

Pursuant to California Rule of Court 3.1700(b)(3), the Court also ordered that the time for Plaintiff’s counsel to file a cost memorandum shall be extended by 30 days until after the deadline to file such a memorandum and, in accordance with California Rule of Court 3.1702(d), the time for Plaintiff’s counsel to make a motion for attorneys’ fee pursuant to statute shall be 90 days from the date judgment was entered. Judgement was entered on January 10, 2019, so the deadline for Plaintiff’s counsel to file this motion was April 10, 2019. Plaintiff timely filed this motion for attorneys’ fees and costs pursuant to Labor Code section 98.2(c) on April 7, 2020.

II. LEGAL STANDARD

The party claiming attorneys’ fees must establish entitlement to such fees and the reasonableness of the fees claimed. (Civic Western Corporation v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16.) “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties.” (Code Civ. Proc., ; 1021.)

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (Ibid.)

In determining the proper amount of fees to award, courts use the lodestar method. The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate. “Fundamental to its determination . . . is a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.” (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).) A reasonable hourly rate must reflect the skill and experience of the attorney. (Id. at 49.) “Prevailing parties are compensated for hours reasonably spent on fee-related issues. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV); Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587 (“The trial court could make its own evaluation of the reasonable worth of the work done in light of the nature of the case, and of the credibility of counsel’s declaration unsubstantiated by time records and billing statements.”).)

Reasonable attorney fees should be based on an objective standard of reasonableness, i.e., the market value of services rendered, not on some notion of cost incurred. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1090.) The value of legal services performed in a case is a matter in which the trial court has its own expertise. (Id. at 1096.) The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. (Ibid.) The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. (Ibid.)

III. DISCUSSION

A. Entitlement to Fees

Plaintiff requests $757,042 in attorneys’ fees pursuant to Labor Code section 98.2(c) on the grounds that he is the prevailing party on Defendant’s appeal of the Labor Commissioner’s decision. Labor Code section 98.2(c) provides:

If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney's fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal. An employee is successful if the court awards an amount greater than zero.

Plaintiff argues that he is the prevailing party on appeal because the Court awarded him $117,738.90 for unpaid overtime and double time premiums, meal period premiums, rest period premiums, statutory wage statement damages, and unpaid sales commissions.

Plaintiff contends the purpose of Labor Code section 98.2(c) is to “provide a speedy, informal, and affordable method of resolving wage claims” and to discourage meritless appeals by employers. (Eicher v. Advanced Bus. Integrators, Inc. (2007) 15 Cal.App.4th 1363, 1382-1383; Lolley v. Campbell (2002) 28 Cal.4th 367, 376.) Despite this, Plaintiff argues that Defendant repeatedly exhibited a dilatory attitude throughout this appeal and made meritless challenges to the Court’s rulings simply to delay proceedings. Thus, Plaintiff reasons he should be awarded attorneys’ fees and costs for having to defend against Defendant’s meritless appeal and continually abusive delay tactics.

Furthermore, Plaintiff asserts he should not be prevented from collecting attorneys’ fees simply because he did not prevail on one of his claims. Plaintiff relies on Arenson v. Royal Pac. Funding Corp. (2015) 239 Cal.App.4th 1275, 1279-1280 for the proposition that the “Legislature added the ‘employee is successful’ sentence to subdivision (c) to make clear that an employee was still successful in the appeal even if the employee ended up with a reduced award – as long as it was not zero.”

Defendant does not challenge that Plaintiff is entitled to reasonable attorneys’ fees and costs pursuant to Labor Code section 98.2(c) on the grounds that Plaintiff is the prevailing party on appeal.

Plaintiff has successfully met his burden in demonstrating his entitlement to attorneys’ fees and costs under Labor Code section 98.2(c) as the prevailing party on appeal of the Labor Commissioner’s decision.

B. Reasonableness of Fees

Plaintiff’s request of $757,042 in attorneys’ fees represents a 1.5 multiplier applied to Plaintiff’s counsel’s lodestar amount of $504,695. This amount represents the time of three attorneys, Paul K. Haines (Haines), Scott M. Lidman (Lidman), Daniel J. Brown (Brown), and paralegals, with hourly rates of $650, $750, $375, and $175, respectively. Haines spent 271.6, Lidman 248, Brown 364.8, and the paralegals 30.6 hours preparing for trial. (Haines declaration, ¶¶ 18-20, Exhibit A; Lidman declaration, ¶ 8, Exhibit A.) The variety and complexity of the tasks necessary to prepare for trial included: (1) reviewing Plaintiff’s Labor Commissioner and personnel/wage statement files; (2) taking William Keller’s deposition; (3) conducting written discovery; (4) preparing to and opposing Defendant’s motions for summary judgment, reconsideration, leave to amend, and ex parte applications; (5) preparing a trial brief; (6) attending the four-day trial; and (7) moving to add Keller as a judgment debtor. (Ibid.) Moreover, Plaintiff argues that these complex litigation tasks were handled by two very experienced attorneys who focus their practices in labor and employment litigation. (Haines declaration, ¶¶ 3-5; Lidman declaration, ¶¶ 3-5.)

Plaintiff argues his request for attorneys’ fees should not be reduced because he did not prevail on one of his claims. Plaintiff cites Nishiki v. Danko Meredith, APC (2018) 25 Cal.App.5th 883, 896 in support of collecting his full attorneys’ fees despite having not prevailed on his claim for waiting time penalties. Additionally, in Eichler, the Court recognized that an attorneys’ fee award can greatly exceed the wage award on appeal from the Labor Commissioner’s decision. (Eichler, supra, 151 Cal.App.4th at 1382.)

Plaintiff requests that a 1.5 multiplier be applied to the lodestar total of $504,695 because Haines and Lidman agreed to represent him on a contingency basis. Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 580 states that a lodestar multiplier is appropriate based on a contingency risk because “a contingent fee must be higher than a fee for the same legal services paid as they are performed because a lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions.” Plaintiffs argues a multiplier is also appropriate because the litigation involved several complex legal issues such as Plaintiff’s classification as an employee versus an independent contract.

Defendant opposes Plaintiff’s attorneys’ fees being increased by a 1.5 multiplier because there are no circumstances present justifying this increase as reasonable and necessary. Defendant contends that the risk of contingent representation and complex legal issues are factors included in calculating the lodestar amount, therefore, a multiplier is not warranted. Defendant assert that Plaintiff fails to explain what exceptional circumstances make a multiplier appropriate based on the lodestar amount not representing the fair valuation of his attorneys’ fees.

In Nishiki, the Court recognized the following factors to consider when determining whether to apply a multiplier: (1) the novelty and difficulty of the questions involved; (2) the skill displayed in presenting them; (3) the extent to which the nature of the litigation precluded other employment by the attorneys; [and] (4) the contingent nature of the fee award. “The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1216.) Of these factors, one of the most common fee enhancers is for contingency risk. (Graham, supra, 34 Cal.4th at 579.) This factor “compensates the lawyer not only for the legal services he renders but for the loan of those services.” (Id. at 580.)

Here, the legal questions involved were novel because the standard used to determine whether someone is an employee or independent contractor changed during the pendency of this action. Based on Plaintiff’s counsels’ declarations and the Court’s own observations, the Court finds that these attorneys exhibited considerable expertise in litigating Plaintiff’s claims. That said, the number of hours reasonably billed and the attorneys’ hourly rates largely reflect the complexity of the issues presented by the case and the level of skill required to present them effectively. Thus, while these factors are relevant, their impact is largely subsumed within the Court’s conclusions that the number of hours worked and the attorneys’ hourly rates are reasonable and that the lodestar calculation presents a sensible and fair starting point for evaluating a reasonable fee in this matter. While not negligible, these factors play a limited role in the Court’s consideration of whether a multiplier should be applied.

On the other hand, the basic loadstar computation does not account for other factors recognized by the courts in evaluating the propriety of fee enhancement. The record indicates that representing Plaintiff on a contingency basis necessarily precluded Haines and Lidman from working on other cases because they each expended more than 200 hours on the matter and are each heads of their firms with supervisory obligations in addition to client representation. Finally, the delay in payment of any fees and the risk of receiving no recovery or fee at all are considerations that warrant an upward multiplier. Plaintiff’s counsel have been managing this litigation since July 2017 without receiving any compensation. If the Court were to apply a pre-judgment interest rate of 10 percent per annum just to the fees expended by the Haines firm in 2017, the return for delay in payment would yield a 27 percent increase in the 2017 fee recovery based on a calculation from December 31, 2017 through September 10, 2020. While the percentage increase for such prejudgment interest decreases for fees expended in 2018 and 2019, these incremental increases only deal with the obvious delays in compensation to Plaintiff’s attorneys. They do not provide any return for the contingent risk assumed by Plaintiff’s attorneys of receiving no fee at all after more than 3 years of litigation. Based on these enhancing factors, the Court finds that a 1.5 multiplier is appropriately applied to Plaintiff’s $504,695 lodestar amount and, thus, awards Plaintiff $757,042 in attorney’s fees and costs.

C. CONCLUSION

For the foregoing reasons, Plaintiff’s motion for attorneys’ fees and costs is GRANTED in the amount of $757,042.

Plaintiff is ordered to give notice of the Court’s ruling.

DATED: September 10, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court



Case Number: ****9815    Hearing Date: November 15, 2019    Dept: 4A

Motion to Add Judgment Debtor

Having considered the moving papers, the Court rules as follows. No opposing papers were filed.

BACKGROUND

Defendant Aqua-Tech Water Management, Inc. (“Aqua-Tech Inc.”) commenced this lawsuit on June 8, 2017 by filing an appeal of an Order, Decision or Award of the Labor Commissioner issued on May 24, 2017.  Brought under Labor Code section 98.2, such an appeal grants the parties a right to a de novo trial of the issues decided by the Commissioner.  It also provides both parties the opportunity to expand, change or abandon the claims and defenses they asserted before the Commissioner to fashion a new approach in their de novo trial.  (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094.)

On October 4, 2017, Plaintiff Benjamin Calhoun (“Calhoun”) filed a Notice of Claims and Issues to be asserted during the de novo trial.  In his Notice, Calhoun asserted causes of action alleging minimum wage violations, a failure to pay overtime premiums, denial of meal and rest breaks, a failure to provide legally compliant wage statements, a claim for waiting time penalties, and unfair or unlawful business practices under California Business and Professions Code ;; 17200, et seq.  Calhoun prayed for unpaid wages and premiums, statutory penalties, damages, restitution, prejudgment interest, and attorney’s fees and costs.

Aqua-Tech Inc. filed its Answer to Calhoun’s claims and issues on October 23, 2017.  In the Answer, Aqua-Tech Inc. denied all the allegations in Calhoun’s pleading, asserted several affirmative defenses including a denial of any employment relationship, and sought sanctions against Calhoun and his attorneys under Code of Civil Procedure section 128.5.

This matter came on for a bench trial on April 4, 5, 8 and 9, 2019 in Department O in the Van Nuys Courthouse East.  On the first day of trial, Calhoun made an oral motion in limine to exclude all evidence in support of the argument in Aqua-Tech Inc.’s trial brief that Calhoun was exempt from the protections of Wage Order 16 and the Labor Code because he was primarily engaged in administrative, executive or professional functions.  Aqua-Tech Inc. opposed, arguing that it should be permitted to raise the defense in the de novo trial because it had been fully litigated before the Labor Commissioner.  The Court granted the motion in limine on the grounds that the exemption was not raised as an affirmative defense in Aqua-Tech Inc.’s Answer and that the prior trial judge had already denied a request to add the defense based on his conclusion that the late, post-discovery amendment would have prejudiced Calhoun.

After the Court received evidence from Calhoun, Aqua-Tech Inc. moved for non-suit arguing that the evidence failed to show that it contracted with Calhoun for his services – as an employee or independent contractor – because the corporation was not operating as a business in the 2013-2014 time period.  The Court denied the motion finding that there was sufficient evidence in the record to find that Aqua-Tech Inc. was an employer of Calhoun, under the standards announced by the California Supreme Court in Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903.

At the close of evidence, the parties elected to submit their closing arguments in writing.  In addition, Calhoun indicated, through his attorneys, that he would be seeking a finding from the Court that William Keller, the President and CEO of Aqua Tech Inc., was the alter ego of the company during the 2013-2014 period and, thus, should be held liable for its actions.  Aqua-Tech Inc. objected to the injection of this issue into the post-trial briefing.

The Court set a schedule for the parties’ briefs to cover their closing arguments and any contentions about Calhoun’s alter ego allegations.  The Court ordered the parties to submit opening briefs by April 30, 2019, with replies by May 14, 2019.  Calhoun was directed to include his alter ego arguments in his first brief and Aqua-Tech Inc. to respond to those arguments in its second brief.  The Court announced that it would take the matter under submission upon receiving the second set of briefs and either issue a decision or set the matter for hearing and potentially for further briefing on the alter ego issue.

On July 26, 2019, the Court found Calhoun is entitled to payment from Aqua-Tech Inc. of unpaid wages and commissions and statutory damages in the total amount of $84,398.46.

Also on July 26, 2019, the Court gave leave for Calhoun to file a motion to add William Keller as a judgment debtor within 30 days after the entry of the July 26, 2019 order.

On August 23, 2019, Calhoun filed a motion to add William Keller as a judgment debtor under California Code of Civil Procedure section 187.

On October 1, 2019, the Court continued the hearing on Calhoun’s motion to add William Keller as a judgment debtor for Calhoun to file a proof of service of the motion on Mr. Keller.

PARTYS REQUESTS

Calhoun asks the Court to permit Calhoun to add William Keller as a judgment debtor to the Court’s July 26, 2019 Statement of Decision.

Calhoun also asks the Court to enter judgment against William Keller, in his individual capacity as an alter-ego of Aqua-Tech Inc., such that William Keller can be held individually liable under an alter ego theory.

LEGAL STANDARD

Section 187 of the Code of Civil Procedure grants to every court the power to use all means to carry its jurisdiction into effect, even if those means are not set out in the code.”  (NEC Electronics Inc. v. Hurt (1989) 208 Cal.App.3d 772, 779 (citation omitted).) (Ibid.) This includes the authority to amend a judgment to add an alter ego of an original judgment debtor, and thereby make the additional judgment debtor liable on the judgment.”  (Highland Springs Conference & Training Center v. City of Banning (2016) 244 Cal.App.4th 267, 280 (citation omitted).) Amending a judgment to add an alter ego of an original judgment debtor ‘is an equitable procedure based on the theory that the court is not amending the judgment to add a new defendant but is merely inserting the correct name of the real defendant.’’”  (Ibid. (citation omitted).)

To obtain an order adding an alter ego as a defendant, the judgment creditor must demonstrate, by a preponderance of the evidence, that: “(1) the parties to be added as judgment debtors had control of the underlying litigation and were virtually represented in that proceeding; (2) there is such a unity of interest and ownership that the separate personalities of the entity and the owners no longer exist; and (3) an inequitable result will follow if the acts are treated as those of the entity alone.” (Relentless Air Racing, LLC v. Airborne Turbine Ltd. Partnership (2013) 222 Cal.App.4th 811, 815-816.)

Section 187 contemplates amending a judgment by noticed motion. . . . The court is not required to hold an evidentiary hearing on a motion to amend a judgment, but may rule on the motion based solely on declarations and other written evidence.”  (Highland Springs Conference & Training Center v. City of Banning, 244 Cal.App.4th at 280 (citing Wells Fargo Bank, N.A. v. Weinberg (2014) 227 Cal.App.4th 1, 9).) (Ibid.)

DISCUSSION

On October 8, 2019, Calhoun filed a proof of service showing William Keller was personally served with the moving papers on October 5, 2019.  Mr. Keller has not filed an opposition.  As such, the Court considers this unopposed motion.

Calhoun argues Mr. Keller controlled every facet of the underlying litigation on behalf of Aqua-Tech, Inc..  (Motion, p. 12:7-12:9.)  The evidence submitted establishes that (1) Mr. Keller owns 100% of the shares in Aqua-Tech, Inc., (2) Mr. Keller was present during the entirety of the Labor Commissioner proceedings below and testified at the hearing on behalf of Aqua-Tech, Inc., (3) Mr. Keller verified all written discovery responses directed to Aqua-Tech, Inc., (4) Mr. Keller appeared every day at trial as the sole representative of Aqua-Tech, Inc., (5) Mr. Keller had his own counsel and would be able to conduct his own discovery in the underlying action, and (6) the only other discovery Mr. Keller would have done differently if he was named as a Defendant would be regarding Mr. Keller’s personal assets, where those assets are held, and his involvement in the DBA.  (Motion, pp. 12:10-13:5.)

The above evidence shows Aqua-Tech, Inc. owed allegiance only to Mr. Keller and Mr. Keller’s interests were served in Aqua-Tech, Inc.’s litigation of the underlying action because Mr. Keller owed all the shares in the company.  The above evidence also shows Mr. Keller had the ability to control the way discovery responses were articulated.  Mr. Keller also had the ability to alter the trial strategy because he was the sole representative of Aqua-Tech, Inc. at trial.  As such, the Court finds Mr. Keller had control of the underlying litigation and was virtually represented in that proceeding.

Calhoun argues there was a unity of interest and ownership such that the separate personalities of the Aqua-Tech, Inc. and Mr. Keller no longer existed.  In doing so, Calhoun went through a variety of factors listed in Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 811-812.  (Motion, pp. 3:18-10:8.)  Namely, (1) Mr. Keller never kept corporate minutes for Aqua-Tech, Inc., and confused the records of the Aqua-Tech dba and the Aqua-Tech Inc., (2) Mr. Keller used Aqua-Tech dba or the Aqua-Tech Inc. in his emails when it would benefit him, (3) Mr. Keller owns 100% of Aqua-Tech, Inc. and of the DBA Aqua-Tech Water Management, (4) Mr. Keller stated that Aqua-Tech, Inc. was a mere corporate shell which he began using in 2016 because his accountant advised him that he was making too much money, (5) and Mr. Keller also started using Aqua-Tech, Inc.rather than his DBA, to limit personal exposure.  (Ibid.)

The above facts show that there is a unity of interest and ownership such that Aqua-Tech Inc. is the alter ego of Mr. Keller.  There are no facts presented to the contrary.  Calhoun argues an inequitable result would be present in not finding that Aqua-Tech, Inc. is not an alter ego of Mr. Keller because he alone controlled the underlying litigation and because his attorney threatened during trial that, in the event of an adverse ruling against Aqua-Tech, Inc., Mr. Keller would simply bankrupt the entity and escape all liability.

Plaintiffs motion is GRANTED.

Plaintiff is ordered to give notice of this ruling and to prepare a proposed Judgment for entry by the Court.



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