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

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Van Nuys Courthouse East

  • 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

Minute Order

9/27/2018: Minute Order

Proof of Service by Mail

2/14/2019: Proof of Service by Mail

Exhibit List

2/15/2019: Exhibit List

Minute Order

3/1/2019: Minute Order

Trial Brief

5/7/2019: Trial Brief

Proof of Service

2/14/2018: Proof of Service

DECLARATION OF PAUL K. HAINES IN SUPPORT OF MOTION FOR ORDERS ETC.

2/14/2018: DECLARATION OF PAUL K. HAINES IN SUPPORT OF MOTION FOR ORDERS ETC.

NOTICE OF ASSOCIATION OF COUNSEL

2/27/2018: NOTICE OF ASSOCIATION OF COUNSEL

EXPARTE APPLICATION FOR AN ORDER CLARIFYING THAT WILLIAM KELLER IS A NAMED DEFENDANT IN THIS ACTION

2/27/2018: EXPARTE APPLICATION FOR AN ORDER CLARIFYING THAT WILLIAM KELLER IS A NAMED DEFENDANT IN THIS ACTION

OPPOSITION TO EX PARTE TO ?CONFIRM? WILLIAM KELLER AS A DEFENDANT IN HIS INDIVIDUAL CAPACITY

2/27/2018: OPPOSITION TO EX PARTE TO ?CONFIRM? WILLIAM KELLER AS A DEFENDANT IN HIS INDIVIDUAL CAPACITY

Minute Order

2/27/2018: Minute Order

ORDER

3/6/2018: ORDER

PROOF OF SERVICE BY MAIL

3/9/2018: PROOF OF SERVICE BY MAIL

AQUA-TECH'S NOTICE OF MOTION REQUESTING LEAVE OF COURT TO FILE AMENDED ANSWER

3/9/2018: AQUA-TECH'S NOTICE OF MOTION REQUESTING LEAVE OF COURT TO FILE AMENDED ANSWER

DECLARATION OF DANIEL J. BROWN IN SUPPORT OF OPPOSITION TO DEFENDANT/APPELLANT'S MOTION FOR RECONSIDERATION

3/29/2018: DECLARATION OF DANIEL J. BROWN IN SUPPORT OF OPPOSITION TO DEFENDANT/APPELLANT'S MOTION FOR RECONSIDERATION

REPLY

4/5/2018: REPLY

PLAINTIFF/RESPONDENT'S BRIEF RE NON-OPPOSITION TO ALTERNATIVE WRIT

6/18/2018: PLAINTIFF/RESPONDENT'S BRIEF RE NON-OPPOSITION TO ALTERNATIVE WRIT

PROOF OF SERYTCE

1/22/2018: PROOF OF SERYTCE

104 More Documents Available

 

Docket Entries

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

    Read MoreRead Less
  • 05/21/2019
  • Trial Brief; Filed by Aqua Tech Wate Management Inc (Appellant)

    Read MoreRead Less
  • 05/07/2019
  • Trial Brief; Filed by Benjamin Calhoun (Plaintiff)

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

    Read MoreRead Less
  • 05/07/2019
  • Trial Brief; Filed by Aqua Tech Wate Management Inc (Appellant)

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

    Read MoreRead Less
  • 05/07/2019
  • Notice of Lodging (of Trial Transcripts); Filed by Benjamin Calhoun (Plaintiff)

    Read MoreRead Less
  • 05/07/2019
  • Proof of Service (not Summons and Complaint); Filed by Benjamin Calhoun (Plaintiff)

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

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

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

    Read MoreRead Less
  • 07/11/2017
  • Case Management Statement; Filed by Benjamin Calhoun (Plaintiff)

    Read MoreRead Less
  • 07/11/2017
  • CASE MANAGEMENT STATEMENT

    Read MoreRead Less
  • 07/07/2017
  • Statement of the Case; Filed by Aqua Tech Wate Management Inc (Appellant)

    Read MoreRead Less
  • 07/07/2017
  • Proof of Service by 1st Class Mail

    Read MoreRead Less
  • 07/07/2017
  • CASE MANAGEMENT STATEMENT

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

    Read MoreRead Less
  • 06/13/2017
  • Proof of Service by 1st Class Mail

    Read MoreRead Less
  • 06/08/2017
  • NOTICE OF APPEAL

    Read MoreRead Less
  • 06/08/2017
  • Notice of Appeal; Filed by null

    Read MoreRead Less

Tentative Rulings

Case Number: BS169815    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.