Filed 3/26/15 Shahedi v. Trimble CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SIXTH APPELLATE DISTRICT

TONY SHAHEDI,                                                        H040809
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 1-08-CV-113931)

         v.

CHARLES TRIMBLE,

         Defendant and Appellant.


         Plaintiff Tony Shahedi obtained a default judgment against defendant Trimbco,
Inc. Defendant Charles Trimble appeals the trial court’s order amending that default
judgment to add Trimble as a judgment debtor as the alter ego of Trimbco, Inc. Trimble
argues the trial court erred because: amending the default judgment to add him as a
judgment debtor violated his Fourteenth Amendment due process rights; Trimble is not
the alter ego of Trimbco, Inc.; and Shahedi unreasonably delayed his motion to amend
the default judgment. For the reasons stated here, we will reverse the amended judgment
because adding Trimble as a judgment debtor violated due process.
                                  I.     TRIAL COURT PROCEEDINGS
         Shahedi worked for Trimbco, Inc., a California corporation doing business as
Sharp Precision Manufacturing (Trimbco). After Shahedi was injured and then
terminated from that company, he filed a complaint in June 2008 alleging, among other
things, wrongful termination and disability discrimination. Shahedi named “TRIMBCO,
INC., a California Corporation doing business as SHARP PRECISION
MANUFACTURING, and DOES 1-20” as defendants. Although the complaint
identified Trimble as the president of Trimbco and made factual allegations about his
conduct as president, the complaint did not make alter ego allegations and Trimble was
not named as a defendant in any capacity. The summons and complaint were served that
month on “Lon Tran, machinist, apparently in charge” at Trimbco’s office as a substitute
for Trimble as Trimbco’s agent. The trial court entered default at Shahedi’s request when
no responsive pleading was filed. In April 2009, the court entered default judgment
against Trimbco for over $800,000 in damages, based on supporting evidence presented
by Shahedi.
       More than four years later, Shahedi moved to amend the default judgment in
December 2013 to add Trimble as a judgment debtor, arguing that Trimble was the alter
ego of Trimbco. Shahedi’s supporting memorandum of points and authorities claimed
that Trimble was the sole shareholder of Trimbco when the default judgment was entered,
that Trimbco had not observed corporate formalities, and that Trimbco was now a
suspended corporation. Trimble filed a written opposition, arguing that adding him as a
judgment debtor would violate his due process rights and, alternatively, that he was not
the alter ego of Trimbco. Trimble did not appear at the court’s March 2014 hearing on
Shahedi’s motion. The court granted Shahedi’s motion to amend the default judgment
and entered an amended judgment nunc pro tunc adding Trimble as a judgment debtor.
                                   II.   DISCUSSION
       Citing Motores de Mexicali, S.A. v. Superior Court of Los Angeles County (1958)
51 Cal.2d 172 (Motores) and NEC Electronics Inc. v. Hurt (1989) 208 Cal.App.3d 772
(NEC),Trimble asserts that amending the default judgment violated his Fourteenth
Amendment due process rights. Shahedi does not discuss Motores and argues that NEC
is factually distinguishable. As we agree that Motores and NEC control the outcome of
this appeal, we will discuss them in detail before addressing the parties’ contentions.


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       In Motores, Motores de Mexicali, S. A. sued Erbel, Inc., doing business as Bi Rite
Auto Sales, to recover a debt owed on vehicle purchase drafts issued in the name of Bi
Rate Auto Sales. (Motores, supra, 51 Cal.2d at p. 173.) When no responsive pleading
was filed, the trial court entered default judgment. After failing to recover the amount of
the default judgment directly from Erbel, Inc., Motores de Mexicali asked the trial court
to amend the default judgment to add three individuals as judgment debtors, alleging that
Erbel, Inc. was the alter ego of the three individuals. (Id. at pp. 173-174.) On petition to
the Supreme Court for writ of mandate after the trial court indicated its intention to deny
the requested amendment, the Supreme Court concluded that amending the default
judgment to add additional judgment debtors on an alter ego theory would
unconstitutionally deprive those individuals of due process. (Id. at pp. 175-176.)
       The Motores court noted the Fourteenth Amendment guarantees a defendant in a
judicial proceeding “the opportunity to be heard and to present ... defenses.” (Motores,
supra, 51 Cal.2d at p. 176.) Summary addition of the three individual defendants to the
default judgment, “without allowing them to litigate any questions beyond their relation
to the allegedly alter ego corporation[,] would patently violate this constitutional
safeguard.” (Ibid.) The court distinguished previous court of appeal decisions that had
added parent corporations to judgments against their subsidiaries, noting that those parent
corporations had actually litigated the cases, whereas in Motores the judgment was
entered against the corporation “strictly by default.” (Ibid.) Finally, the court rejected
the argument that the individual defendants should have intervened, reasoning that
“[t]hey were under no duty to appear and defend personally in that action, since no claim
had been made against them personally.” (Ibid.)
       This court applied Motores to a request to amend a default judgment to add an
alter ego judgment debtor in NEC, supra, 208 Cal.App.3d at pp. 778-781. NEC sued the
Ph Components corporation to recover on amounts due for goods NEC sold to Ph
Components. Ph Components filed a general denial. Before trial, Ph Components
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informed NEC that it would not appear at trial. NEC proceeded to trial, Ph Components
did not appear, and the trial court entered judgment in favor of NEC. After entry of
judgment, Ph Components filed a voluntary Chapter 11 bankruptcy petition. NEC then
successfully moved to amend the judgment to add the company’s sole shareholder and
chief executive, Porter Hurt, as a judgment debtor, arguing that Hurt was the alter ego of
Ph Components. (Id. at pp. 774-776.)
       We acknowledged in NEC that amending a judgment to add alter ego judgment
debtors “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.” (NEC, supra, 208 Cal.App.3d at p. 778, citing Code Civ. Proc., § 187.) We
noted, however, that in Motores the Supreme Court found constitutional due process
protections make such amendments improper when judgment is by default. Like the
defendant corporation in Motores, Ph Components did not appear at trial and made no
attempt to defend the lawsuit. As a consequence, Hurt’s interests were not represented.
(NEC, at pp. 779-780.) Having been sued only as a corporation and on the verge of
bankruptcy, Ph Components had no incentive to defend the NEC lawsuit. Because the
interests and exposure of that corporation and Hurt were not the same, Hurt did not have
“occasion to conduct the litigation with a diligence corresponding to the risk of personal
liability that was involved ... .” (Id. at p. 781.)
       We review the trial court’s decision amending the judgment to add Trimble as a
judgment debtor for an abuse of discretion and review factual findings necessary to that
decision for substantial evidence. (Carolina Casualty Ins. Co. v. L.M. Ross Law Group,
LLP (2012) 212 Cal.App.4th 1181, 1189.) Applying that standard, the amended
judgment adding Trimble as a judgment debtor must be reversed. Though Trimble
received notice via the summons and complaint that Shahedi was suing Trimbco, that
complaint did not name Trimble as a defendant (either as an individual or as the alter ego
of Trimbco). Because Trimbco defaulted, Trimble did not present any defenses to
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personal liability he might have had. As in Motores, supra, 51 Cal.2d at p. 176, the trial
court’s addition of Trimble as a judgment debtor without litigating any questions beyond
his relation to the alleged alter ego corporation violated Trimble’s constitutional right to
due process. Shahedi does not discuss (or even mention) Motores, much less explain
how we can overlook binding authority from the Supreme Court. (See Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [“Courts exercising inferior jurisdiction
must accept the law declared by courts of superior jurisdiction”].) Because there was
insufficient evidence to support the trial court’s implied finding that Trimble had an
opportunity to litigate his personal liability in the action between Shahedi and Trimbco,
its decision to amend the default judgment was an abuse of discretion.
       Shahedi’s arguments supporting the trial court’s decision are unpersuasive.
Shahedi paraphrases Dow Jones Co. v. Avenel (1984) 151 Cal.App.3d 144, 150 (Dow
Jones), arguing that “while Trimble may not have been technically given the opportunity
to convince the trial court that he had a defense to the respondent’s action, he was able to
do so through the vehicle of Trimbco, Inc., had he chosen to do so.” However, Dow
Jones is distinguishable because, unlike Motores, NEC, and this case, in Dow Jones the
corporate defendant actually litigated the case through summary judgment. (See Dow
Jones, at p. 150.) The NEC court noted that distinction, explaining that the underlying
action in Dow Jones was “contested and therefore the alter ego’s interests were
effectively represented by the defense presented by the corporate defendant.” (NEC,
supra, 208 Cal.App.3d at p. 780.) Consistent with NEC, we find the reasoning of Dow
Jones inapplicable here because, as we have explained, by virtue of the default judgment
Trimble’s interests were not effectively represented.
       Shahedi also cites Mad Dogg Ath., Inc. v. NYC Holding (2008) 565 F.Supp.2d
1127, arguing that the federal district court applying California law added an alleged alter
ego to a default judgment against a corporate defendant. Apart from being a non-binding
district court decision (Elliott v. Albright (1989) 209 Cal.App.3d 1028, 1034), that
                                              5
decision does not discuss Motores or NEC, suggesting that the due process issue was not
raised in that case. (Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1278 [noting
opinions are not authority for propositions not considered therein].) Further, to the extent
resort to federal authorities is useful, Trimble correctly notes that the Ninth Circuit has
applied NEC to reverse the addition of an alter ego judgment debtor in a factual scenario
similar to the one at issue here, stating that “[w]e believe that NEC represents the law that
the California Supreme Court would apply if faced with this issue, and we therefore
follow it.” (Katzir’s Floor and Home Design, Inc. v. M-MLS.com (2004) 394 F.3d 1143,
1150 [district court’s addition of individual alter ego defendant to a default judgment
against a corporation reversed where the individual was not named personally in the
complaint, finding individual had no personal duty to defend the litigation].)
       Finally, Shahedi claims NEC is factually distinguishable because “[a]pparently,
the corporate defendant believed it had a defense to [NEC’s] action but chose to forgo it
as it planned to file a Chapter 11 bankruptcy proceeding.” (Citing NEC, supra, 208
Cal.App.3d at p. 780.) Shahedi argues Trimble has not identified any defense he or
Trimbco might have had to his wrongful termination suit. But the opinion in NEC
contains only a passing reference “that Ph believed it had a defense to the NEC action”
(NEC, at p. 780), without describing what it was or whether it may have also been
available to Hurt. Motores controlled the result in NEC not because of the existence of a
particular unasserted defense but simply because the alleged alter ego’s interests were not
represented in the underlying action. (NEC, at p. 780.) Even where there is no apparent
difference in interests between the corporation and the alleged alter ego individual, under
Motores adding an alter ego judgment debtor to a default judgment is inconsistent with
basic notions of due process. (Motores, supra, 51 Cal.2d at p. 176.)
                                  III.    DISPOSITION
       The amended judgment is reversed. The trial court is instructed to enter a new
default judgment consistent with the original default judgment entered in April 2009.
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                                  ____________________________________
                                  Grover, J.




WE CONCUR:




____________________________
Bamattre-Manoukian, Acting P.J.




____________________________
Mihara, J.
