Judge: Lisa R. Jaskol, Case: 19STCV20149, Date: 2025-01-02 Tentative Ruling
All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter. If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.
Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line. If you elect to argue your matter, you are urged to do so remotely, via Court-Connect.
Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court. This does not excuse a moving party's need to do one of the following: appear; submit; or take a matter off calendar by canceling the motion in the case reservation system before issuance of the tentative ruling if the matter moving party does not intend to proceed.
If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.
Case Number: 19STCV20149 Hearing Date: January 2, 2025 Dept: 28
Having considered the moving, opposition, objection, and reply papers, the Court rules as follows.
BACKGROUND
A. Previous proceedings
The complaint alleged that Alta Vista, Konstantin Goldenberg and Faina Goldenberg were “corporations, partnerships, or other business entities duly organized and existing under the laws of the State of California . . . .” (Complaint ¶ 3.)
On July 12, 2019, the City filed an answer. On July 24, 2019, the City filed a cross-complaint against Cross-Defendants Konstantin Goldenberg, Faina Goldenberg, Alta Vista, and Roes 1-25 for apportionment of fault, indemnification, and declaratory relief. On October 16, 2020, the Court dismissed Konstantin Goldenberg, Faina Goldenberg, and Alta Vista from the cross-complaint without prejudice at the City’s request.
On August 13, 2019, the Court entered the defaults of Konstantin Goldenberg and Faina Goldenberg on Plaintiff’s complaint.
On August 26, 2019, Alta Vista filed a general denial to Plaintiff’s complaint.
On October 28, 2019, Plaintiff amended the complaint to include Defendants Fred Wasser as Doe 1, Wasser Keging as Doe 2, and Wasser R. Fred Trust as Doe 3.
On February 20, 2020, the Court granted Plaintiff’s motion for issue and evidentiary sanctions against Alta Vista and ordered that (1) Alta Vista was precluded from introducing any evidence at trial and (2) the issues of liability, causation, and damages were deemed adjudicated in favor of Plaintiff and against Alta Vista.
On July 16, 2020, the Court dismissed the City without prejudice at Plaintiff’s request.
On August 20, 2020, Plaintiff waived jury trial.
On November 6, 2024, Cross-Complainants Konstantin Goldenberg, Faina Goldenberg, and Alta Vista filed a cross-complaint against Cross-Defendant City for apportionment of fault, indemnification, and declaratory relief. On December 10, 2020, the Court granted the City’s motion to strike the cross-complaint.
On November 16, 2020, Konstantin Goldenberg and Faina Goldenberg (who were in default) filed an answer to Plaintiff’s complaint.
On April 1, 2021, the case was assigned the Hon. Ernest Hiroshige in Department 70 at the Metropolitan Courthouse for a non-jury trial. Judge Hiroshige addressed motions in limine and heard testimony on April 1, 2, 5, and 6, 2021.
On June 29, 2021, Judge Hiroshige issued an interim order seeking clarification of certain issues. On August 30, 2021 and September 2, 2021, Judge Hiroshige issued additional orders and directed Plaintiff to submit a default prove-up package.
On November 15, 2021, Judge Hiroshige issued a decision which concluded, “The Court’s total verdict for the Plaintiff [against Alta Vista] is $1,608,000.00.”
On December 13, 2021, Judge Hiroshige issued a tentative ruling denying Plaintiff’s application for default judgment against Konstantin Goldenberg and Faina Goldenberg, reasoning that Plaintiff’s complaint failed to allege that Konstantin Goldenberg and Faina Goldenberg were liable to Plaintiff in their individual capacities.
On January 14, 2022, Judge Hiroshige adopted the December 13, 2021 tentative decision. Judge Hiroshige stated: “The Court will not ‘exercise its discretion’ – per the Plaintiff’s request – to rule that a proper ‘conforming to proof’ based on the evidence presented to the Court could award a Default Judgment[] against the ‘individual’ Defendants Konstantin and Faina Goldenberg.” The Court granted Plaintiff leave to file a first amended complaint.
On January 28, 2022, Plaintiff filed a first amended complaint against Konstantin Goldenberg, Faina Goldenberg, and Does 1-50 for premises liability and negligence.
On February 22, 2022, Judge Hiroshige entered a judgment in favor of Plaintiff against Alta Vista for $1,608,000.00.
On March 7, 2022, Konstantin Goldenberg and Faina Goldenberg filed an answer to Plaintiff’s first amended complaint. On May 18, 2022, Konstantin Goldenberg and Faina Goldenberg filed a first amended answer to the first amended complaint.
On September 22, 2022, Plaintiff amended the first amended complaint to include Defendants F. Ziatogorov Goldenberg as Doe 4, Staci Marmersthteyn as Doe 5, and Jeffrey Gold as Doe 6.
On February 15, 2023, the Court dismissed Konstantin Goldenberg, Faina Goldenberg, F. Ziatogorov Goldenberg, Staci Marmersthteyn, and Jeffrey Gold with prejudice at Plaintiff’s request.
On April 13 and 17, 2023, Alta Vista filed notices of appeal.
On October 5, 2023, the Court of Appeal dismissed the appeal filed April 17, 2023. On December 14, 2023, the Court of Appeal issued the remittitur.
On February 9, 2024, the Court of Appeal issued a decision dismissing the appeal filed on April 13, 2023. On April 18, 2024, the Court of Appeal issued the remittitur.
B. This motion
On September 25, 2024, Plaintiff filed a motion to amend the February 22, 2022 judgment to add Staci Marmershteyn (“Marmershteyn”) as Alta Vista’s alter ego. The motion was set for hearing on November 19, 2024. On October 29, 2024, Plaintiff filed a request for judicial notice in support of the motion.
On November 12, 2024, Marmershteyn filed an opposition. On November 13, 2024, Plaintiff filed an objection to Staci Marmershteyn’s opposition. (The Court exercises its discretion to consider the opposition.) On November 15, 2024, Plaintiff filed a reply and another request for judicial notice. On November 18, 2024, Marmershteyn filed a response to Plaintiff’s objection. The Court continued the hearing to December 31, 2024.
REQUESTS
Plaintiff asks the Court to amend the February 22, 2022 judgment against Alta Vista by adding Marmershteyn as Alta Vista’s alter ego.
Marmershteyn asks the Court to deny the motion.
LEGAL STANDARD
“[A] court has authority to impose liability under a judgment on an alter ego who has control of the litigation.” (Misik v. D’Arco (2011) 197 Cal.App.4th 1065, 1075 (Misik), citing Alexander v. Abbey of the Chimes (1980) 104 Cal.App.3d 39, 45 (Alexander).) “Amendment of a judgment to add an alter ego is a proper procedure where it can be shown that the alter ego of the corporate entity had control of the litigation and was virtually represented in the lawsuit.” (Ibid.)
“ ‘[T]he conditions under which the corporate entity may be disregarded vary according to the circumstances in each case and the matter is particularly within the province of the trial court. [Citations.] This is because the determination of whether a corporation is an alter ego of an individual is ordinarily a question of fact.’ ” (Misik, supra, 197 Cal.App.4th 1065, 1071-1072, quoting Alexander, supra, 104 Cal.App.3d at p. 46.) “There are two requirements for disregarding the corporate entity: first, that there is a sufficient unity of interest and ownership between the corporation and the individual or organization controlling it that the separate personalities of the individual and the corporation no longer exist and, second, that treating the acts as those of the corporation alone will sanction a fraud, promote injustice, or cause an inequitable result. [Citation.] ‘Both of these requirements must be found to exist before the corporate existence will be disregarded, and since this determination is primarily one for the trial court and is not a question of law, the conclusion of the trier of fact will not be disturbed if it is supported by substantial evidence.’ ” (Id. at p. 1072, quoting Alexander, supra, 104 Cal.App.3d at p. 47.)
“ ‘Code of Civil Procedure section 187 authorizes a trial court to amend a judgment to add judgment debtors.’ ” (Misik, supra, 197 Cal.App.4th at p. 1072, quoting Postal Instant Press, Inc. v. Kaswa Corp. (2008) 162 Cal.App.4th 1510, 1517, fn. omitted.) “The court may exercise its authority to impose liability upon an alter ego who had control of the litigation, and was therefore represented in it.” (Ibid.; see NEC Electronics Inc. v. Hurt (1989) 208 Cal.App.3d 772, 778-779 (NEC) [“ ‘[i]f the claim of individual liability is made at some later stage in the action, the judgment can be made individually binding on a person associated with the corporation only if the individual to be charged, personally or through a representative, had control of the litigation and occasion to conduct it with a diligence corresponding to the risk of personal liability that was involved’ ”].)
“ ‘Control of the litigation sufficient to overcome due process objections may consist of a combination of factors, usually including the financing of the litigation, the hiring of attorneys, and control over the course of the litigation.’ ” (NEC, supra, 208 Cal.App.3d at p. 779, quoting 1A Ballantine & Sterling, Cal. Corporation Laws (4th ed.) § 299.04, pp. 14-45-14-46, fn. omitted.) “Clearly, some active defense of the underlying claim is contemplated.” (Id. at p. 781.) It is not enough that an executive was “aware” of the litigation action because “[s]urely every chief executive officer of a corporation is cognizant of claims asserted against the corporation.” (Ibid.)
PLAINTIFF’S REQUESTS FOR JUDICIAL NOTICE
A. Request filed October 29, 2024
Denied. “ ‘It is well settled that a court cannot take judicial notice of the truth of matters stated in pleadings or affidavits in the court file of another case, although it can be noticed that the documents exist. Judicial notice can be taken only of the contents of orders, findings of fact, conclusions of law, and judgments.” (Randy’s Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818, 847, fn. 19 [denying request for judicial notice because “defendants are offering the documents for the truth of the statements made therein”].)
B. Request filed November 15, 2024
Denied. Plaintiff has not shown how the documents are relevant to the alter ego issue in this case.
DISCUSSION
Plaintiff asks the Court to find that Staci Marmershteyn is Alta Vista’s alter ego because (1) she ran Alta Vista as its administrator, (2) as Alta Vista’s current CEO, she handles Alta Vista’s “financials,” (3) Alta Vista is a “a family owned company where Staci Marmershteyn her father and mother ran the business” (Motion p. 6), (4) Alta Vista paid Staci Marmershteyn’s mortgage and credit card bill, and (5) Staci Marmershteyn signed declarations and verified discovery responses on behalf of Alta Vista in the litigation.
Plaintiff also argues that Alta Vista filed a bankruptcy petition on March 7, 2024 to evade enforcement of the judgment and used corporate assets to defend the action rather than tendering the case to its insurance carrier.
While Plaintiff asserts that Marmershteyn retained counsel for Alta Vista and made the decision not to tender Alta Vista's defense to its insurance carrier, Plaintiff has provided no evidence to support these assertions.
Marmershteyn opposes the motion, arguing (among other things) she did not control the litigation for Alta Vista.
Plaintiff has not carried his burden of showing that Marmershteyn controlled the litigation. At most, Plaintiff has shown that Marmershteyn was aware of the litigation due to her role as chief operating officer (and later CEO) of Alta Vista and signed declarations and verified discovery responses. This evidence does not show that Marmershteyn “had control of the litigation and occasion to conduct it with a diligence corresponding to the risk of personal liability that was involved.’ ” (See NEC, supra, 208 Cal.App.3d at pp. 778-779.)
The Court denies Plaintiff’s motion.
CONCLUSION
The Court DENIES Plaintiff Douglas Hart’s motion to amend the judgment to add Staci Marmershteyn as the alter ego of Defendant Alta Vista Gardens, Inc.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.