Judge Kerry Bensinger, Case Number: 23STCV07881, Date: 2024-02-21 Tentative Ruling

On April 10, 2023, Plaintiff, Shuki International, Inc., filed a Judicial Council Form Complaint against Defendant, Antonio Brown, and Does 1 to 10, for (1) Breach of Oral Contract, (2) Open Book Account for Money Due. Plaintiff deals in high-end jewelry. Plaintiff alleges Defendant agreed to pay for jewelry that Plaintiff provided to Defendant. The jewelry was valued at $1,095,000. Defendant breached the agreement on December 1, 2022 by failing to pay Plaintiff.

On November 11, 2023, nonparty KH Capital, Inc. (“KH Capital”) filed a Notice of Lien based on a money judgment against Shaoul Amar (“Amar”) in the civil action Amar v. Schuller, et al., Case No. EC059084. KH Capital alleges that Amar conducts business as Shuki International. KH Capital is the assignee of record of the judgment against Amar.

“A nonparty shall petition the court for leave to intervene by noticed motion or ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.” (Code Civ. Proc. § 387, subd. (c).)

“The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:

(B)¿The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.”

If leave to intervene is granted by the court, the intervenor shall separately file the complaint in intervention and serve notice of the court’s decision to parties who have appeared. (Code Civ. Proc. § 387, subd. (e).)

KH Capital requests judicial notice of 37 documents. The unopposed request is GRANTED. (Evid. Code, 452, subds. (d), (h).)

Code of Civil Procedure section 708.430 provides, “The court in which the action or special proceeding is pending may permit a judgment creditor who has obtained a lien under this article to intervene in the action or proceeding pursuant to Section 387.” (Code Civ. Proc. § 708.430, subd. (a).) “An intervention takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons by doing any of the following:

KH Capital seeks mandatory leave to intervene on the grounds it is a judgment creditor of Shaoul Amar, who is the equitable owner of Shuki International. As such, KH Capital has an interest in the value of the jewelry that is the subject of this action. In support, KH Capital offers several documents which establish: (1) Amar conducted business as Shuki International (Request for Judicial Notice (RJN), Exs. 16, 17, 19, 24, 25), (2) Amar owned the trademark of Shuki International (RJN, Exs. 42, 45), (3) Shuki International deals in jewelry (RJN, Ex. 24), (4) Amar claimed in the media that he lent jewelry to Defendant Antonio Brown which Defendant has refused to return (Manasserian Decl., Ex. 10), and (5) KH Capital is the assignee of record of the judgment creditor who has a judgment against Amar (RJN, Exs. 21, 39, 40). KH Capital also includes a copy of the proposed complaint-in-intervention to be filed. (Manasserian Decl., Ex. 15.)

KH Capital further argues intervention is mandatory because it is not so situated that the disposition of this action may impair or impede KH Capital’s ability to protect its interest. For instance, KH Capital argues it cannot levy the stock share certificates of Shuki International to take ownership of the entity because Amar is not the legal owner of the entity. Nor can KH Capital move to amend its judgment under the alter ego doctrine because “outside-reverse” piercing is not allowed in instances where the alter ego is a corporation. (See, e.g. Post Instant Press, Inc. v. Kaswa Corp. (2008) 162 Cal.App.4th 1510 (disallowing outside-reverse piercing from individual judgment debtor to corporation).) Additionally, KH Capital’s interest in the property is not adequately represented by the parties of the action. Plaintiff is an entity controlled by Amar, a judgment debtor of KH Capital. Defendant is facing liability to Plaintiff. Thus the parties are either directly (Plaintiff) or indirectly (Defendant) adverse to KH Capital.

Plaintiff opposes the motion on the grounds that Leslie Richards is, and at all times has been, the sole shareholder, director, and officer of Shuki International, Inc. Plaintiff offers the Declaration of Leslie Richards in support of this contention. However, the declaration is self-serving and demonstrably false. KH Capital has submitted documents showing Amar was the owner of Shuki International. Those documents have been judicially noticed. (See RJN, Exs. 16, 17, 19, 24, 25, 42, 45.) Further, KH Capital offers court documents which show Ms. Richards has similarly acted as legal owner of Amar’s companies and properties and filed declarations to assist Amar in evading creditors. (See RJN, Exs. 26, 27, 28, 30, 31.) Importantly, Plaintiff does not address any of the arguments raised in support of KH Capital’s right to intervene.

Based on the foregoing, the court finds KH Capital has mandatory right to intervene. KH Capital has established its interest in the property that is the subject of this action, that it is not so situated that the disposition of this action may impair or impede KH Capital’s interest, and further, that none of the parties adequately represent KH Capital’s interest. KH Capital’s right to intervene is proper even if default judgment has been entered in favor of Plaintiff. (See Mallick v. Superior Court (1979) 89 Cal.App.3d 434, 437 (noting limitation on statutory intervention under CCP section 387 was removed by the 1988 amendment to the section).)

The motion is granted. KH Capital is ordered to file its proposed Complaint-in-Intervention within five (5) days of the date of this Order.

Kerry Bensinger

Judge of the Superior Court