Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INC066099. Randall Donald White.
Michael Petersen, in pro per., for Plaintiff and Appellant.
Law Offices of Mark C. Fields and Mark C. Fields for Defendants and Respondents.
OPINION
King, J.
The facts stated in this introduction are based on the representations of all of the parties to this appeal and are substantially undisputed.
Plaintiff and appellant Michael Petersen is the assignee of a judgment in the principal sum of $100,000. The judgment was obtained by An Affair With Plants and Flowers, Inc. (An Affair), a landscaper, against two real estate developers, defendants and respondents California Cove Communities, Inc. (CCC) and California Cove at LaQuinta LLC (CC LaQuinta), and was entered into pursuant to a settlement agreement that Petersen, as the chief financial officer of An Affair, negotiated with CCC.
An Affair was asserting that CCC breached oral and written contracts to pay An Affair approximately $280,000 for landscaping and irrigation materials and services that An Affair provided to CCC on a development project known as Las Ventanas in LaQuinta during 2005 and 2006. CCC was disputing the quality of the materials and services provided.
The settlement amount was $120,000. CCC paid an initial $20,000 installment, but failed to pay the balance of $100,000, which was due in full on December 31, 2007. Thereafter, the trial court entered judgment in favor of An Affair and against CCC and CC LaQuinta in the principal sum of $100,000. An Affair then assigned the judgment to Petersen, and Petersen conducted postjudgment discovery.
In September 2008, Petersen filed a motion to amend the judgment to add several additional judgment debtors as alter egos of CCC and CC LaQuinta, namely, individuals Luis Trujillo and George Alvarez, who together owned 80 percent of the stock of CCC, and seven other entities allegedly owned and controlled by Trujillo and Alvarez (collectively respondents). Following an October 2008 hearing, the trial court denied the motion, reasoning that Petersen “fail[ed] to establish by a preponderance of admissible evidence that the alleged alter egos controlled the litigation,” and that Peterson “was aware of the alleged alter ego relationships during the pendency of arbitration and prior to the settlement.” (Italics added.)
Petersen appeals from the postjudgment order denying his motion. He claims that insufficient evidence supports the trial court’s conclusions that (1) he failed to establish that the alleged alter egos controlled the litigation, and (2) he was aware of the alleged alter ego relationships while the arbitration was pending and prior to the settlement. He further claims the court prejudicially erred (1) in refusing to issue a statement of decision pursuant to his request, and (2) in failing to rule on respondents’ evidentiary objections to the evidence he proffered in support of his motion.
We affirm. First, we conclude the trial court effectively issued a statement of decision as part of its minute order denying the motion. Further, it was unnecessary for the court to rule on any of respondents’ evidentiary objections, because even if Petersen had met his burden of showing that any of respondents were alter egos of CCC or CC LaQuinta, Petersen did not present any evidence that any of respondents controlled the litigation or, more specifically, that any of them had an adequate incentive to defend the litigation as though their own liabilities were at stake. Thus, Petersen did not show that granting the motion as to any of respondents would not have violated their due process rights. For this reason alone, the motion was properly denied.
II. PROCEDURAL BACKGROUND
In his motion, Petersen claimed that Trujillo and Alvarez owned, respectively, 70 and 10 percent of the stock of CCC, and were alter egos of CCC principally because they used substantial amounts of CCC’s funds to pay their personal expenses, including home mortgages, credit card payments, and car payments, between August 2005 and early January 2008. In addition, Petersen claimed that seven other entities, namely, Intervest Marketing Corporation, Trussnet USA Inc., Trussgroup Limited, Trussnet USA Development Co. Inc., California Cove at Hawaii LLC, California Cove at San Elijo LLC, and California Cove at Santa Rosa LLC, were the alter egos of CCC because they were owned or controlled by CCC, Trujillo, and Alvarez, had the same office address, telephone number, and employees as CCC, and their funds and other assets had been intermingled with those of CCC, Trujillo, and Alvarez.
Petersen further claimed that Trujillo and Alvarez had “consistently been accused of fraud, forgery, embezzlement and larceny on a variety of developments and by a variety of individuals over the past 15 years,” and had “manufactured ‘fake’ escrows” on another development project in order to mislead construction lenders. In support of his various alter ego claims, Petersen submitted his original and two supplemental declarations, an original and supplemental “exhibit list” with numerous documents attached, and an original and supplemental request for judicial notice with more documents attached. Petersen proffered a total of 63 exhibits.
Through counsel, respondents specially appeared in the action and opposed the motion. Respondents filed a memorandum of points and authorities in opposition to the motion, together with declarations from Trujillo, Alvarez, and Attorney Kenneth Waggoner, general counsel for CCC. Respondents also filed extensive evidentiary objections to Petersen’s original and first supplemental declarations, his requests for judicial notice, and his lists of exhibits.
In their brief on this appeal, respondents characterize the evidence Petersen adduced in support of his motion as “a world-class collection of hearsay, double hearsay, and documents lacking either foundation, authentication and/or relevance.” There is much truth to respondents’ characterization.
In his original declaration, Petersen averred he had been the chief financial officer of An Affair for 10 years and had conducted the settlement negotiations on behalf of An Affair with Attorney Waggoner. This is nearly the extent of the admissible evidence Petersen produced in support of his motion. The remaining portions of Petersen’s declarations consist largely of inadmissible hearsay or inadequate attempts to authenticate his 63 exhibits.
For example, in paragraph 5 of his original declaration, Petersen states that, while discussing settlement offers, Attorney Waggoner would “make statements to the effect that he would have to ‘run it by Luis Trujillo (Sr.)’ or ‘Luis Trujillo will run it by the others.’” This was hearsay. (Evid. Code, § 1200.) And, at paragraph 20 of his second supplemental declaration, Petersen states that Attorney Waggoner “indicated that George Alvarez was the ‘money man’ in the [settlement] negotiations.” This statement was also hearsay. (Ibid.) Similarly, in his original declaration at paragraphs 7 and 8, Petersen attempted to show, through hearsay statements made by Attorney Waggoner, that Trujillo declined Petersen’s offer to settle An Affair’s claims in exchange for a personal guarantee from Trujillo.
In most of the remaining paragraphs of his original and supplemental declarations, Petersen attempted to authenticate, item by item, the 63 exhibits that were attached to his exhibit lists and his second supplemental declaration. Many of his attempts to authenticate the exhibits were inadequate. For example, he stated at paragraph 9 of his original declaration that: “Attached to Plaintiff’s Exhibit list as exhibit 7 are true and correct print outs of corporate and LLC reports from the California Secretary of State... for California Cove at Hawaii....” Petersen did not state who obtained the reports or how the reports were obtained, however. Thus, Petersen did not proffer sufficient evidence that the alleged reports were true and correct copies of what they purported to be. (Evid. Code, §§ 1400, 1401; cf. Landale-Cameron Court, Inc. v. Ahonen (2007) 155 Cal.App.4th 1401, 1409 [attorney’s statement that prior counsel in litigation had sent and received documents deemed sufficient to authenticate the documents, that is, to sustain a finding that the documents were what they purported to be].)
Petersen also attempted to authenticate documents he was ostensibly unable to authenticate. For example, exhibit 12 purported to be a copy of a power of attorney signed by George Alvarez in favor of Luis Trujillo, dated December 13, 2002. Petersen averred that the document was “obtained from the court records department of the Orange County Superior Court.” This was insufficient to sustain a finding that the document was a true and correct copy of a power of attorney from Alvarez to Trujillo. There was no showing of the context of the court file from which the document was obtained. For all the trial court knew, it could have been an allegedly fraudulent power of attorney. In any event, it is unclear how the power of attorney is relevant to or supports Petersen’s alter ego claims.
Further, exhibits 1 through 4 purported to consist of bank statements of CCC and CC LaQuinta for the five-year period of January 2003 through January 2008. The statements were apparently offered to support Petersen’s claim that Trujillo and Alvarez had used funds of CCC and/or CC LaQuinta to pay their personal expenses, although this is not apparent based solely on the statements. Exhibit 1 includes a declaration from a bank officer certifying the authenticity of the bank records and affirming that they were provided in response to a deposition subpoena; however, there is no declaration by Petersen or anyone else that the bank statements contained in exhibit 1, 2, 3, or 4 consist of the bank statements obtained from the bank in response to the subpoena.
Finally, Petersen’s requests for judicial notice included copies of four complaints filed by other parties in actions against Trujillo and Alvarez. It appears Petersen proffered these documents to support his claim that Trujllo and Alvarez had been sued for “fraud, forgery, embezzlement and larceny” by others, although the first complaint was against Trujillo for sexual harassment. In any event, even if the trial court had taken judicial notice of the fact the complaints were filed and their allegations, the fact Trujillo and Alvarez had been sued by others for fraud or embezzlement had little to no bearing on Petersen’s claims, or whether Trujillo or Alvarez were the alter egos of CCC or CC LaQuinta.
III. DISCUSSION
A. The Trial Court’s Minute Order Effectively Constituted a Statement of Decision
At the close of the hearing on Petersen’s motion, Petersen requested that the trial court issue a statement of decision. The court refused, saying: “No, sir, you may not request a statement of decision on a motion.”
Petersen claims the trial court reversibly erred in denying his request for a statement of decision. We disagree. Although the trial court was arguably required to issue a statement of decision on this particular motion, its minute order adequately explained the factual and legal basis of its ruling, and for this reason effectively constituted a statement of decision.
A superior court is required to issue a statement of decision “upon the trial of a question of fact by the court... explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial,” upon the timely request of any party appearing at the trial. (Code Civ. Proc., § 632.) The general rule is that a trial court is not required to issue a statement of decision after granting or denying a motion (City of San Diego v. Rancho Penasquitos Partnership (2003) 105 Cal.App.4th 1013, 1044), even if the motion involves extensive evidentiary hearings and the resulting order is appealable (see Gruendl v. Oewel Partnership, Inc. (1997) 55 Cal.App.4th 654, 660 (Gruendl)).
Code of Civil Procedure section 632 provides: “In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. After a party has requested the statement, any party may make proposals as to the content of the statement of decision. [¶] The statement of decision shall be in writing, unless the parties appearing at trial agree otherwise; however, when the trial is concluded within one calendar day or in less than 8 hours over more than one day, the statement of decision may be made orally on the record in the presence of the parties.”
In Gruendl, however, the court declined to apply the general rule to a trial court’s decision granting a motion to amend a judgment to add judgment debtors based on alter ego theories. (Gruendl, supra, 55 Cal.App.4th at p. 660.) The court reasoned that the trial court should have issued a statement of decision because (1) the motion involved issues of fact that the court “necessarily ‘tried’”; (2) important interests were at stake; (3) the proposed judgment debtors would have been entitled to a statement of decision had they been named in the complaint as defendants based on alter ego allegations; and (4) the failure to issue a statement adversely affected the ability of the proposed judgment debtors to challenge the trial court’s decision on appeal. (Id. at pp. 660-661; cf Lien v. Lucky United Properties Investment, Inc. (2008) 163 Cal.App.4th 620, 624-625 [statement of decision not required on anti-SLAPP motion].)
The reasons cited in Gruendl for requiring a statement of decision apply with equal force to Petersen’s motion and, as indicated, Petersen timely requested a statement of decision. The failure to issue a statement of decision, when one is required, ordinarily constitutes reversible error. (Gruendl, supra, 55 Cal.App.4th at pp. 659-660.) Here, however, the trial court effectively issued a statement of decision in its minute order denying Petersen’s motion. The order states: “Plaintiff fails to establish by a preponderance of admissible evidence that the alleged alter egos controlled the litigation. Further[,] Plaintiff was aware of the alleged alter ego relationships during the pendency of arbitration and prior to the settlement. The court thus explained the factual and legal basis of its ruling denying the motion, despite its earlier statement that it would not issue a statement of decision on the motion. (Code Civ. Proc., § 632.)
Petersen’s request was timely because it was made at the hearing on the motion and prior to submission of the matter for decision. (Code Civ. Proc., § 632.)
Petersen maintains that the minute order is not a statement of decision because, in summarily denying his request at the time of the hearing, the trial court did not afford him the opportunity to identify the controverted issues he wanted the court to address in a statement of decision. The record does not support this claim. After the court issued its minute order, Petersen had every opportunity to request that the court further explain its ruling or address additional issues. Petersen did not do so, however. Nor does he identify what additional issues the trial court should have but did not address.
B. Petersen’s Motion to Amend the Judgment Was Properly Denied
Petersen’s principal claim on this appeal is that insufficient evidence supports the order denying his motion—specifically, the trial court’s conclusions that (1) he failed to establish by a preponderance of admissible evidence that the alleged alter egos controlled the litigation; and (2) he was aware of the alleged alter ego relationships during the pendency of arbitration and prior to the settlement. We disagree. For the reasons we explain, substantial evidence supports the trial court’s first conclusion. It is therefore unnecessary for this court to address whether substantial evidence supports its second conclusion.
1. “Control of the Litigation”/The Due Process Requirement
Code of Civil Procedure section 187 authorizes a trial court to amend a judgment to add additional judgment debtors on the ground they are the alter egos of an original judgment debtor. (Hall, Goodhue, Haisley & Barker, Inc. v. Marconi Conf. Center Bd. (1996) 41 Cal.App.4th 1551, 1554-1555.) “Amendment of a judgment to add an alter ego ‘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. [Citations.]....’” (Carr v. Barnabey’s Hotel Corp. (1994) 23 Cal.App.4th 14, 21-22.)
Code of Civil Procedure section 187 provides: “When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.”
“There are two general requirements for disregarding the corporate entity. First, there must be ‘such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist.’ [Citation.] Second, it must be demonstrated that ‘if the acts are treated as those of the corporation alone, an inequitable result will follow.’ [Citation.]” (NEC Electronics Inc. v. Hurt (1989) 208 Cal.App.3d 772, 777 (NEC).) Thus, “[a]lter ego is a limited doctrine, invoked only where recognition of the corporate form would work an injustice to a third person. [Citation.]” (Tomaselli v. Transamerica Ins. Co., supra, 25 Cal.App.4th at p. 1285, italics added.)
“The factors which may show the ‘unity of interest’ issue vary according to each case and are fact specific. [Citation.] Among the facts which can be considered are financial issues (e.g., was the corporation adequately capitalized?); corporate formality questions (e.g., was stock issued, are minutes kept and officers and directors elected, are corporate records segregated?); ownership issues (e.g., what is the stock ownership picture?); commingling issues (e.g., are corporate assets commingled, does the parent company merely use the corporate shell of the subsidiary to obtain goods and services for the parent company?); etc. [Citation.] If these factors show a unity of interest, and it is also shown that honoring the corporate shell would promote a fraud or injustice, the third party may be permitted to ‘pierce the corporate veil’ and hold the parent entity liable for the corporate activities. [Citation.]” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1285, fn. 13.)
There is also a due process requirement. It must be shown by a preponderance of the evidence that the proposed additional judgment debtors, in their capacity as alter egos of an original judgment debtor, had “‘control of the previous litigation, and thus were virtually represented in the lawsuit.’ [Citation.] In other words, ‘[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.’ [Citation.]” (NEC, supra, 208 Cal.App.3d at pp. 778-779, italics added.)
In ruling that Petersen failed to show by a preponderance of admissible evidence that any of respondents “controlled the litigation,” the trial court effectively ruled that Petersen failed to show that granting his motion would not violate the due process rights of any of respondents. We review this conclusion for substantial evidence (Jack Farenbaugh & Son v. Belmont Construction, Inc. (1987) 194 Cal.App.3d 1023, 1029), and conclude that substantial evidence supports it.
As indicated, due process requires not only that an alter ego or proposed additional judgment debtor have controlled the litigation that resulted in the judgment, it also requires the alter ego to have been sufficiently motivated to defend the litigation as though his or her personal liability was at stake. In other words, the interests of the alter ego and the original judgment debtor must have substantially coincided. Otherwise, it cannot be said that the alter ego was “virtually represented” in the litigation, even if the alter ego controlled that litigation on behalf of the original judgment debtor. (NEC, supra, 208 Cal.App.3d at pp. 778-779; see also Baize v. Eastridge Companies, LLC (2006) 142 Cal.App.4th 293, 302.) Cases that have applied the due process requirement bear this out.
For example, in the leading case of Motores De Mexicali v. Superior Court (1958) 51 Cal.2d 172, the plaintiff obtained a default judgment against a corporation, the corporation went into bankruptcy, and the plaintiff petitioned the superior court to add three individual owners of the corporation to the judgment as additional judgment debtors. (Id. at pp. 173-174.) The court refused to allow the amendment, reasoning it would violate the individuals’ due process rights. (Id. at p. 176.) The court emphasized that the judgment had been entered by default, no claim had been made against the individual owners in their personal capacities, and the individual owners therefore had no reason to appear in or defend the action against the corporation. (Ibid.) Thus, although the individual owners may have had the power and authority to control the litigation against their corporation, their interests in defending the litigation did not substantially coincide with the interests of their corporation. The owners were thus not “virtually represented” in the lawsuit.
Similarly, in NEC, supra, 208 Cal.App.3d 772, 778 through 782, the court reversed an order amending a judgment to name the owner of a corporation, Hurt, as an additional judgment debtor, on the ground he was not virtually represented in the lawsuit against his corporation. NEC had obtained a judgment against Hurt’s wholly-owned corporation, Ph Components (Ph), for goods sold to Ph. (Id. at pp. 775-776.) Ph answered the complaint but did not appear at trial, and Hurt was not named as a defendant. At the time of trial, Ph was negotiating with its unsecured trade creditors, including NEC, for more favorable terms. (Id. at p. 775.) Ph later filed for chapter 11 bankruptcy protection, and NEC moved to amend its judgment to add Hurt as an additional judgment debtor on the ground he was an alter ego of Ph. (Id. at p. 776.)
The trial court granted the motion, concluding (1) Hurt was the alter ego of Ph; (2) Hurt controlled the litigation between NEC and Ph; and (3) Hurt had an opportunity to present a defense to NEC’s claim. (NEC, supra, 208 Cal.App.3d at p. 776.) On appeal, Hurt conceded that substantial evidence supported the trial court’s conclusion that he was the alter ego of NEC. He argued, however, that there was insufficient evidence that an inequitable result would follow if the separate existence of Ph was respected. The NEC court rejected this argument, concluding that substantial evidence also showed that Hurt “manipulated the assets of Ph to the detriment of Ph’s creditors” and thus “produced an inequity to NEC.” (Id. at pp. 777-778.)
Regarding the alter ego issue, the trial court found that Ph had loaned Hurt over $2.8 million over several years. The loans were undocumented and no interest had been paid on any of the loans. Further, although Hurt had used his personal funds to pay some of Ph’s business obligations, he had not adequately accounted for his advances and repayments to Ph. Also, Ph had made over 30 monthly mortgage payments on Hurt’s residence, paid maintenance and other expenses for Hurt’s boat, and leased an automobile for Hurt’s wife, who was not a Ph employee. (NEC, supra, 208 Cal.App.3d at p. 776.)
Nevertheless, the NEC court agreed with Hurt’s additional claim that adding him as a judgment debtor would have violated his due process rights. (NEC, supra, 208 Cal.App.3d at pp. 778-781.) The court emphasized that the interests of Ph and Hurt in the litigation were not the same, and “contrast[ed] with the usual scenario where the interests of the corporate defendant and its alter ego are similar so that the trial strategy of the corporate defendant effectively represents the interests of the alter ego.” (Id. at p. 780.) The court said: “Hurt was not named as a party, had no risk of personal liability and therefore was not required to intervene.” (Ibid.) The court also emphasized that Ph was on the verge of bankruptcy and thus had no incentive to defend NEC’s claim. (Id. at pp. 778-781.) Nor was it enough, the court said, that Hurt was “‘aware’” of the action by NEC against Ph, because “every chief executive officer of a corporation is cognizant of claims asserted against the corporation.” (Id. at p. 781.)
NEC demonstrates that a judgment creditor may meet its dual burden of showing that a proposed additional judgment debtor (1) was an alter ego of an original judgment debtor, and (2) manipulated the assets of the original judgment debtor to the detriment of its creditors, and still run afoul of the additional due process or “virtual representation” requirement. To meet this requirement, it must be shown that the alter ego not only had the power and authority to control the litigation, but was also sufficiently motivated to defend the litigation as though his or her personal interests were at stake, such that the alter ego was virtually represented in the litigation. (NEC, supra, 208 Cal.App.3d at pp. 778-782.)
Here, as in NEC and Motores, there is no indication that any of respondents, namely, Trujillo, Alvarez, or any of the seven entities Petersen proposed to add as judgment debtors, were named as defendants in the lawsuit by An Affair against CCC and CC LaQuinta. Nor is there any indication that any of respondents had occasion or reason to defend the litigation as though their liabilities were at stake. (NEC, supra, 208 Cal.App.3d at pp. 778-779.) Thus, none of respondents were “‘virtually represented in the lawsuit,’” or had “‘occasion to conduct it with a diligence corresponding to the risk of personal liability that was involved.’ [Citation.]” (Id. at pp. 778-779; see also Katzir’s Floor & Home Design, Inc. v. M-MLS.COM (9th Cir. 2004) 394 F.3d 1143, 1150 [district court erred in adding a corporation’s president and sole shareholder to a default judgment against the corporation; the interests of the shareholder/president and corporation were different because the corporation was facing financial difficulties and was about to be placed into involuntary receivership].)
Indeed, the judgment was based on a settlement agreement entered into by and between An Affair, on the one hand, and CCC and CC LaQuinta on the other. None of the proposed alter egos, including Trujillo or Alvarez, were parties to the settlement agreement. Instead, An Affair, CCC, and CC LaQuinta treated the $120,000 settlement amount as a corporate obligation on the part of CCC and CC LaQuinta. Thus, even if, as Petersen claims, Trujillo, Alvarez, or any of the other proposed alter egos controlled the litigation, their interests were not virtually represented in the ultimate outcome of that litigation, namely, the settlement agreement. Nor were any of the proposed alter egos sufficiently motivated to protect their own interests in the settlement negotiations, as opposed to those of CCC and CC LaQuinta.
It is significant that, as Petersen averred in his original declaration, during the settlement negotiations he told Attorney Waggoner, counsel for CCC, that An Affair “might be amenable to a payment plan if we got personal guarantees from Luis Trujillo and George Alvarez.” Petersen’s request for personal guarantees was rejected, however. Its rejection and An Affair’s acquiescence to that rejection indicates and constitutes substantial evidence that the interests of Trujillo, Alvarez, and the other proposed alter egos were not virtually represented in the litigation which, of course, was consummated in the settlement agreement.
The settlement agreement did not release the proposed alter egos from potential liability as such, because the general release clause in the agreement was expressly made subject to the “payment of the Settlement Amount.”
Petersen maintains he showed that Trujillo and Alvarez “controlled the litigation” because Trujillo was the “shot caller,” or the person Attorney Waggoner consulted in the settlement negotiations, and Alvarez was the “money man” or source of settlement funds. Setting aside respondents’ objections to this evidence, and assuming the roles of Trujillo and Alvarez were proved as alleged, Petersen’s showing was nevertheless insufficient to satisfy the due process requirement. As discussed, there is no indication that any of respondents had any reason or motivation to defend the lawsuit as though their own liabilities were at stake. They were thus not virtually represented in the lawsuit.
Petersen further argues that the interests of closely-held corporations, such as CCC and CC LaQuinta, “generally fully coincide” with the interests of their shareholders or at least their majority shareholders, such as Trujillo and Alvarez. (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 152; Rest.2d Judgments, § 59, com. e, p. 99.) Indeed, “‘it may be presumed that their interests coincide and that one opportunity to litigate issues that concern them in common should sufficiently protect both.’” (Gottlieb v. Kest, supra, at p. 151.) Be that as it may, “‘[t]he problem then becomes one of fair opportunity... and adequate incentive to litigate issues commonly affecting” the principal shareholders and the corporation. (Id. at pp. 151-152.) And here, substantial evidence shows that respondents had no incentive to protect their interests in the litigation or ultimately in the settlement negotiations, given that they were not parties to the settlement agreement.
To be sure, in all of the cases in which courts have upheld an order amending a judgment to add an additional judgment debtor, the additional judgment debtor has been virtually represented in the lawsuit, or has had substantially the same motivation to defend the lawsuit as the original judgment debtor. (See, e.g., Dow Jones Co. v. Avenel (1984) 151 Cal.App.3d 144, 150; Jack Farenbaugh & Son v. Belmont Construction, Inc., supra, 194 Cal.App.3d at p. 1031; and Mirabito v. San Francisco Dairy Co. (1935) 8 Cal.App.2d 54, 58.)
2. Petersen’s Prior Awareness of the Alleged Alter Ego Relationships
As indicated, Petersen further claims that insufficient evidence supports the trial court’s additional conclusion that either he or An Affair were “aware of the alleged alter ego relationships during the pendency of arbitration and prior to the settlement.” This claim sounds in estoppel and is based on Jines v. Abarbanel (1978) 77 Cal.App.3d 702, 716 and 717. There, the court affirmed an order denying a motion to amend a judgment to add a judgment debtor’s employer as an additional judgment debtor, on the ground the plaintiff knew and reasonably should have known during the course of the litigation that the proposed additional judgment debtor was the employer of the original judgment debtor. It is unnecessary for us to address this claim, however, in light of our conclusion that substantial evidence supports the trial court’s conclusion that Petersen failed to show that amending the judgment to add any of respondents would not have violated their due process rights. (NEC, supra, 208 Cal.App.3d at pp. 778-779.)
C. The Trial Court’s Failure to Rule on Respondents’ Evidentiary Objections is of No Consequence
As indicated, respondents filed numerous evidentiary objections to Petersen’s original and supplemental declarations and the other evidence he presented in support of his motion, including requests for judicial notice and lists of exhibits. Petersen responded to the objections.
In their objections, respondents claimed that Petersen’s declarations were rife with hearsay, and he failed to authenticate or lay a proper foundation for the numerous documents he included in his requests for judicial notice and his lists of exhibits. The trial court did not rule on any of respondents’ objections, instead ruling that Petersen failed to show “by a preponderance of admissible evidence that the alleged alter egos controlled the litigation.” (Italics added.)
Petersen claims the trial court reversibly erred in failing to rule on respondents’ evidentiary objections. We disagree. As discussed, Petersen failed to present any evidence that the proposed judgment debtors both controlled the litigation or had “‘occasion to conduct it with a diligence corresponding to the risk of personal liability that was involved.’” (NEC, supra, 208 Cal.App.3d at pp. 778-781.) In other words, Petersen failed to show that amending the judgment to add any of respondents would not have violated their due process rights. (Id. at pp. 780-781.) For this reason alone, the order denying Petersen’s motion must be affirmed.
IV. DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: McKinster, Acting P.J., Miller, J.