Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. 726145, GIC753184 Ronald L. Styn, Judge.
McDONALD, J.
Plaintiffs Pointe San Diego Residential Community, L.P. (Pointe), Gosnell Builders Corporation of California (Gosnell), and Pointe SDMU, L.P. (PSDMU) (collectively Plaintiffs) appeal a postjudgment order denying their motion to amend the amended judgment (entered on remand after appeal of the original judgment). The motion sought to add Palomba Weingarten as a cojudgment debtor as an alter ego of other judgment debtors in Plaintiffs' action arising out of the residential and mixed use development, known as Pointe San Diego (project), of certain real property in the Spring Valley area of San Diego County. On appeal, Plaintiffs contend the trial court erred by denying their motion because: (1) the court had jurisdiction and authority to consider the motion, which was procedurally proper and not barred by Code of Civil Procedure section 1008, subdivision (b); and (2) our opinion in the original appeal in this matter did not deprive the trial court of jurisdiction or the authority to consider the motion.
All statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our discussion of the factual and procedural background to those matters directly relevant to this appeal. For a more complete discussion of the factual and procedural background in this action, please refer to our opinion in Pointe San Diego Residential Community, L.P. v. W.W.I. Properties, L.L.C. (July 11, 2007, D044695) [nonpub. opn.] (Pointe I).
In 1996, Gosnell entered into a development management agreement (DMA) with W.W.I. Properties, L.L.C. (WWI), a Weingarten-related entity that acquired ownership of the project's residential property (initially owned by Gosnell), pursuant to which Gosnell would act as the development manager for that property. In 1997, WWI terminated the DMA and replaced Gosnell with Wenner & Associates as the development manager for the residential property. Also in 1997, WWI sold a portion of the residential property to Whitehall Realty Corporation and transferred the remaining residential property to Atlas Homes, L.L.C. (Atlas), an entity essentially owned indirectly by Weingarten and her family.
Also in 1996, PSDMU (with a general partner controlled by Robert Gosnell) was formed to own and develop the project's mixed use property. PSDMU retained Gosnell as the development manager of the mixed use property. In 1999 and 2000, Atlas moved dirt from the mixed use property to the residential property without PSDMU's consent.
Plaintiffs filed two separate actions against WWI, Atlas, and other defendants alleging various causes of action. Gosnell alleged a breach of contract cause of action against WWI, and PSDMU alleged conversion and trespass causes of action against Atlas. Following two phases of a bench trial of the consolidated actions and issuance of written statements of decision finding WWI and Atlas liable on the above causes of action, Plaintiffs filed a motion to amend the judgment to add Weingarten as a codebtor with WWI and Atlas, arguing she was an alter ego of those entities. The trial court issued an order granting that motion, finding "Weingarten managed and exclusively controlled functions of... [Atlas and WWI]. Each was an instrumentality of Ms. Weingarten which she improperly used to the detriment of the plaintiffs in these actions." The court noted: "There is such a unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist and that, if the acts are treated as those of the corporation alone, an unequitable [sic] result will follow." It subsequently issued a written statement of decision making specific findings of fact regarding Plaintiffs' motion to amend the judgment. On September 22, 2004, the trial court (San Diego County Superior Court Judge Robert E. May (retired), sitting under assignment) entered a judgment awarding Gosnell $394,068.73 against WWI and Weingarten, jointly and severally, for breach of contract and awarding PSDMU $966,752.86 for conversion and $152,990.22 for nonpermanent trespass against Atlas and Weingarten, jointly and severally.
On appeal of that judgment, in our 2007 opinion in Pointe I, we concluded Plaintiffs did not show by substantial evidence, and the trial court did not find in its statement of decision, that denial of their motion to amend the judgment to include Weingarten would cause an inequitable result. Accordingly, we reversed the "portions of the judgment making Weingarten jointly and severally liable to Gosnell for breach of the DMA and to PSDMU for conversion and nonpermanent trespass."
On remand, the trial court (San Diego County Superior Court Judge Ronald L. Styn) conducted additional proceedings regarding two other remanded matters and entered an amended judgment on December 19, 2008. That amended judgment awarded PSDMU $966,752.86 for conversion and $152,990.22 for nonpermanent trespass against Atlas. It further stated: "[Gosnell], having received partial satisfaction on August 24, 2007, of its judgment for the damages sustained as of the completion of trial for breach of the [DMA] against [WWI], is the prevailing party on the claims and cross-claims asserting breach of the [DMA] and is awarded costs against [WWI] in the sum of $400,000 as attorneys fees incurred in connection therewith, together with [postjudgment] interest from September 22, 2004, at the maximum legal rate until paid."
On May 26, 2009, Plaintiffs filed the instant "renewed" motion to amend the 2008 amended judgment to add Weingarten as a codebtor with WWI and Atlas based on the alter ego doctrine. Their motion was made "pursuant to... sections 1008[, subdivision] (b) and 187 and on grounds there is such a unity of interest and ownership between Weingarten and [WWI and Atlas] that the separate personalities of the corporations and... Weingarten do not really exist and an inequitable result would exist absent application of the alter ego doctrine to hold Weingarten personally liable for the judgments rendered against [Atlas] and WWI." Plaintiffs cited and lodged three items of new evidence purportedly showing "an 'inequitable result' would clearly result from allowing Ms. Weingarten to avoid personal liability through the web of corporate deceit she purposefully weaved in order to shield herself from liability to Plaintiffs."
Weingarten opposed the motion, arguing the renewed motion did not comply with section 1008 and the trial court did not have jurisdiction to consider the motion because our opinion in Pointe I did not direct that the alter ego issue be reconsidered by the trial court on remand. She argued the instant motion was not a "renewed" motion under section 1008, subdivision (b), because the trial court unconditionally granted, rather than refusing or conditionally granting, Plaintiff's original 2004 motion to amend the judgment to add her as a codebtor.
On June 26, 2009, the trial court denied Plaintiffs' motion to amend the 2008 judgment, concluding it did not have jurisdiction to consider the motion because: (1) in Pointe I we remanded with directions for the trial court to conduct further proceedings on only two matters (neither of which involved the alter ego issue) and therefore did not intend any further proceedings be conducted on reversal of that portion of the 2004 judgment adding Weingarten as a codebtor; and (2) section 1008, subdivision (b), did not apply where the original 2004 motion was unconditionally granted. Nevertheless, the trial court noted that if it had jurisdiction and the motion were not procedurally barred, it would have found the requisite inequitable result for application of alter ego liability against Weingarten. Plaintiffs timely filed a notice of appeal.
DISCUSSION
I
Trial Court's Jurisdiction and Authority to Consider 2009 Motion
Plaintiffs contend the trial court erred by concluding it did not have jurisdiction or authority to consider their 2009 motion to amend the 2008 amended judgment to add Weingarten as a cojudgment debtor based on alter ego liability. They argue the court had inherent power under section 187 to consider that motion. Plaintiffs further argue that section 1008, subdivision (b), allowing certain renewed motions, either did not apply to their 2009 motion or, if it did, they complied with its requirements.
Although Plaintiffs' opening brief could have expressed their appellate theory more clearly, it argued: "No ground exists to extend section 1008 to restrict the inherent power of the court to add an alter ego to a judgment after appellate reversal when the Legislature has not done so explicitly." It further argued: "The limits of section 1008 were immaterial because the subject was inherently at large to be reopened after a partial reversal without directions." Plaintiffs' reply brief more clearly explains their appellate theory without changing its substance.
A
Plaintiffs filed their 2009 "renewed" motion to amend the 2008 amended judgment to add Weingarten as a codebtor with WWI and Atlas based on the alter ego doctrine. Their motion was made pursuant to sections 1008, subdivision (b), and 187, and "on grounds there is such a unity of interest and ownership between Weingarten and [WWI and Atlas] that the separate personalities of the corporations and... Weingarten do not really exist and an inequitable result would exist absent application of the alter ego doctrine to hold Weingarten personally liable for the judgments rendered against [Atlas] and WWI." The trial court denied their motion based, in part, on its conclusion that section 1008, subdivision (b), did not apply because the original motion was unconditionally granted.
B
Plaintiffs argue, and Weingarten does not appear to dispute, that a trial court generally has the inherent power under section 187 to consider a motion to amend a judgment to add a codebtor based on alter ego liability. Section 187 provides:
"When jurisdiction is, by the Constitution or this Code [of Civil Procedure], 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."
"Under section 187, the trial court is authorized to amend a judgment to add additional judgment debtors. [Citations.] As a general rule, 'a court may amend its judgment at any time so that the judgment will properly designate the real defendants.' [Citations.] Judgments may be amended to add additional judgment debtors on the ground that a person or entity is the alter ego of the original judgment debtor. [Citations.] '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.... 'Such a procedure is an appropriate and complete method by which to bind new... defendants where it can be demonstrated that in their capacity as alter ego of the corporation they in fact had control of the previous litigation, and thus were virtually represented in the lawsuit.'..."...' " (Hall, Goodhue, Haisley & Barker, Inc. v. Marconi Conf. Center Bd. (1996) 41 Cal.App.4th 1551, 1554-1555, fn. omitted; see also NEC Electronics Inc. v. Hurt (1989) 208 Cal.App.3d 772, 778.)
"It is well settled that when a corporation 'is used by an individual or individuals, or by another corporation, to perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, a court may disregard the corporate entity and treat the acts as if they were done by the individuals themselves or by the controlling corporation... the court will disregard the "fiction" of corporate entity[.]' " (McClellan v. Northridge Park Townhome Owners Assn. (2001) 89 Cal.App.4th 746, 752-753.) "Whether the theory relied on by the moving party and the trial court is alter ego, piercing the corporate veil, or some other challenge to the fiction of the corporate entity, the doctrine 'limits the exercise of the corporate privilege to prevent its abuse. [Citations.]' " (Id. at p. 753.) In general, there are two requirements for application of the alter ego doctrine: "(1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow." (Automotriz etc. De California v. Resnick (1957) 47 Cal.2d 792, 796.) One factor in determining whether an individual should be held personally liable for a corporate or other entity's obligations is "whether there was an attempt to provide adequate capitalization" for the corporate or other entity. (Id. at pp. 796-797.)
Based on the above authorities, the trial court in this case had both jurisdiction and authority under section 187 to consider a motion to amend the 2008 amended judgment to add Weingarten as a cojudgment debtor pursuant to the alter ego doctrine. A trial court generally may amend its judgment (even if an amended judgment) at any time so that the judgment will properly designate the real defendants. (Hall, Goodhue, Haisley & Barker, Inc. v. Marconi Conf. Center Bd., supra, 41 Cal.App.4th at p. 1555.) Plaintiffs could properly file a motion under section 187 at any time after entry of the 2008 amended judgment, requesting that the trial court exercise its inherent, equitable power to add Weingarten as a cojudgment debtor based on alter ego liability.
C
Section 1008, subdivision (b), did not apply to, or otherwise bar, Plaintiffs' 2009 motion to amend the 2008 amended judgment. Section 1008, subdivision (b), provides:
"A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion." (Italics added.)
Furthermore, section 1008, subdivision (e), provides:
"This section specifies the court's jurisdiction with regard to applications for... renewals of previous motions, and applies to all applications... for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application... for the renewal of a previous motion may be considered by any judge or court unless made according to this section."
As quoted above, section 1008, subdivision (b), expressly applies only when an application or motion for an order was previously made and "refused in whole or part, or granted conditionally or on terms." (Italics added.) The record in this case shows, and both parties agree, that Plaintiffs' original 2004 motion to amend the judgment to add Weingarten was granted by the trial court, which then entered its 2004 judgment awarding Gosnell $394,068.73 against WWI and Weingarten, jointly and severally, for breach of contract and awarding PSDMU $966,752.86 for conversion and $152,990.22 for nonpermanent trespass against Atlas and Weingarten, jointly and severally. On appeal in Pointe I, we reversed those portions of the trial court's 2004 judgment making Weingarten jointly and severally liable to Gosnell for breach of the DMA and to PSDMU for conversion and nonpermanent trespass, concluding Plaintiffs did not show by substantial evidence, and the trial court did not find in its statement of decision, that denial of their motion to amend would cause an inequitable result. Plaintiffs correctly assert that their 2009 motion was not a "subsequent" application or motion within the meaning of section 1008, subdivision (b), because the trial court did not refuse or conditionally grant their previous 2004 motion, but rather unconditionally granted it. Under the plain and ordinary meaning of the language of section 1008, subdivision (b), a subsequent application or motion for an order is not subject to that statute's requirements unless a previous application or motion for the same order had been refused or denied, in whole or in part, or granted conditionally or on terms. Because the trial court in this case unconditionally granted Plaintiffs' 2004 motion, their 2009 motion did not fall within the language of section 1008, subdivision (b), and therefore was not subject to that statute's requirements.
As Weingarten concedes, our reversal in Pointe I of the trial court's order granting the 2004 motion was not equivalent to a refusal or conditional grant of that motion by the trial court. "Only through an unreasonable, strained construction" can our reversal on appeal of the trial court's order granting the 2004 motion be construed as a refusal or conditional grant of that motion within the meaning of section 1008, subdivision (b). (Cf. Trinkle v. California State Lottery (1999) 71 Cal.App.4th 1198, 1203.) We decline to so construe that statute in the circumstances of this case.
Weingarten states: "When an appellate court reverses a judgment or an order, it is not 'refusing' or 'conditionally granting' a motion; rather, it is passing on the propriety of the ruling of another court—the trial court.... [¶]... When this Court reversed the alter ego issue, it did not reverse an 'order' or an 'application for an order'; rather, it reversed a judgment that imposed alter ego liability."
Furthermore, we also conclude section 1008, subdivision (e), either alone or together with section 1008, subdivision (b), did not apply to, or otherwise bar, Plaintiffs' 2009 motion to amend the amended judgment. Section 1008, subdivision (e), must be construed together and consistently with section 1008, subdivision (b). Although section 1008, subdivision (e), provides that "[n]o application... for the renewal of a previous motion may be considered by any judge or court unless made according to this section, " we interpret its provisions as applying only to those applications or motions described elsewhere in section 1008 (e.g., § 1008, subd. (b)). We apply the same reasoning to other language in section 1008, subdivision (e), which provides: "This section specifies the court's jurisdiction with regard to applications for... renewals of previous motions, and applies to all applications... for the renewal of a previous motion." Therefore, unless an application or motion follows a previous application or motion that a trial court refused in whole or part or granted conditionally or on terms, section 1008, subdivision (e), does not apply to bar a trial court from considering, or having jurisdiction to consider, a subsequent application or motion unless the requirements of section 1008 are met. Alternatively stated, an application or motion is not a "renewed motion" within the meaning of section 1008, subdivision (e), unless a previous application or motion for the same order had been refused in whole or part or granted conditionally or on terms. Because the trial court in this case unconditionally granted Plaintiffs' 2004 motion, section 1008 does not apply to deprive the trial court of jurisdiction to consider, or otherwise bar, their 2009 motion. As Plaintiffs assert, because their 2004 motion was unconditionally granted by the trial court, section 1008's provisions, including any requirements for "subsequent" applications or motions under section 1008, subdivision (b), are inapplicable to their 2009 motion.
The trial court's order denying Plaintiffs' 2009 motion is a postjudgment order appealable under section 904.1, subdivision (a)(2). Because section 1008 is inapplicable to the 2009 motion, Weingarten incorrectly asserts the order denying that motion is not appealable. (Cf. Tate v. Wilburn (2010) 184 Cal.App.4th 150, 156-160 [concluding a renewed motion pursuant to section 1008, subdivision (b), is not appealable].)
II
Effect of Our 2007 Opinion
Plaintiffs contend the trial court erred by denying their 2009 motion to amend the 2008 amended judgment because, contrary to the trial court's conclusion, our 2007 opinion in Pointe I did not deprive the trial court of jurisdiction or authority to consider their 2009 motion.
A
The trial court granted Plaintiffs' 2004 motion to amend the judgment to add Weingarten as a cojudgment debtor and then entered its 2004 judgment awarding Gosnell $394,068.73 against WWI and Weingarten, jointly and severally, for breach of contract and awarding PSDMU $966,752.86 for conversion and $152,990.22 for nonpermanent trespass against Atlas and Weingarten, jointly and severally. On appeal of that judgment, in our 2007 opinion in Pointe I, we concluded Plaintiffs did not show by substantial evidence, and the trial court did not find in its statement of decision, that denial of their motion to amend would cause an inequitable result. Accordingly, we reversed the "portions of the judgment making Weingarten jointly and severally liable to Gosnell for breach of the DMA and to PSDMU for conversion and nonpermanent trespass."
On remand, the trial court entered a 2008 amended judgment, awarding PSDMU $966,752.86 for conversion and $152,990.22 for nonpermanent trespass against Atlas and awarding Gosnell $400,000 against WWI for attorney fees incurred as the prevailing party on its breach of contract cause of action. Plaintiffs then filed their 2009 motion to amend the 2008 amended judgment to add Weingarten as a codebtor with WWI and Atlas based on the alter ego doctrine. The trial court denied Plaintiffs' motion, concluding that it lacked jurisdiction to consider the motion because in Pointe I we remanded with directions for the trial court to conduct further proceedings on only two matters (neither of which involved the alter ego issue) and therefore did not intend any further proceedings on reversal of that portion of the judgment adding Weingarten as a cojudgment debtor.
B
The general rule is that "[t]he effect of an unqualified reversal ('the judgment is reversed') is to vacate the judgment, and to leave the case 'at large' for further proceedings as if it had never been tried, and as if no judgment had ever been rendered. [Citations.]" (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 870, p. 928.) "An unqualified reversal ordinarily has the effect of remanding the cause for a new trial on all of the issues presented by the pleadings. It is unnecessary to add specific directions for this purpose in the judgment [on appeal]." (9 Witkin, supra, § 870, p. 929.) "When [a] judgment [is] unqualifiedly reversed, ... the effect [is] the same as if it had never been entered, except that on a retrial the opinion of the Court of Appeal must be followed as far as applicable." (Weisenburg v. Cragholm (1971) 5 Cal.3d 892, 896.) An unqualified reversal of a judgment "remands the case for a new trial and places the parties in the same position as if the case had never been tried. [Citations.] Of course, upon a retrial the decision of the appellate court becomes the law of the case upon the facts as then presented." (Weightman v. Hadley (1956) 138 Cal.App.2d 831, 835-836; see also Erlin v. National Union Fire Ins. Co. (1936) 7 Cal.2d 547, 549; cf. Bank of America v. Superior Court (1990) 220 Cal.App.3d 613, 626 [general rule regarding unqualified reversals does not apply where motion for judgment notwithstanding the verdict (JNOV) was made and denied by trial court and appellate court reversed the judgment based on insufficiency of the evidence]; McCoy v. Hearst Corp. (1991) 227 Cal.App.3d 1657, 1661 [same].) The same general rule applies to an unqualified partial reversal of a judgment. (Hall v. Superior Court (1955) 45 Cal.2d 377, 381.) "If the evidence... is clearly insufficient to support the judgment, it will be reversed, usually for a new trial [citation]. But in rare cases, where it appears unlikely that new evidence... will be produced, reversal with directions is proper." (9 Witkin, supra, § 877, p. 939; cf. Kelly v. Haag (2006) 145 Cal.App.4th 910, 919-921 [reversing, without retrial, punitive damages award for insufficiency of the evidence]; Baxter v. Peterson (2007) 150 Cal.App.4th 673, 679-682 [same].)
"One limitation [on that general rule] is that a case is to be set at large for retrial only when that is the intent of the appellate court. 'Judgment reversed' at the end of an opinion is, of course, strong indication of such intent. But when the opinion as a whole establishes a contrary intention, the rule is inoperative." (Stromer v. Browning (1968) 268 Cal.App.2d 513, 518-519.) Alternatively stated, "[t]he general rule that an unqualified reversal results in a retrial does not necessarily apply when the opinion as a whole establishes a contrary intent. It is the substance of the opinion that controls, not the form of the order." (In re Anna S. (2010) 180 Cal.App.4th 1489, 1500; see also In re Justin S. (2007) 150 Cal.App.4th 1426, 1435 [if language of disposition is unclear, the opinion as a whole should be considered for proper interpretation].) Furthermore, "[w]hen there has been a decision upon appeal, the trial court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur. The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void." (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655.) If the appellate court directs entry of a specific judgment on remand, "the trial court has no discretion but to enter the judgment called for." (Id. at pp. 655-656.)
On remand, any retrial or further trial court proceedings may be subject to the doctrine of the law of the case. "[T]he doctrine applies only to an appellate court's decision on a question of law; it does not apply to questions of fact. [Citation.] Nevertheless, it is potentially relevant... because an appellate court's determination 'that the evidence is insufficient to justify a finding or a judgment is necessarily a decision upon a question of law.' [Citation.] Such a determination 'establishe[s] as the law of the case that all the evidence adduced at the previous trial was insufficient as a matter of law to establish' the finding or judgment." (People v. Barragan (2004) 32 Cal.4th 236, 246.) However, "during subsequent proceedings in the same case, an appellate court's binding legal determination 'controls the outcome only if the evidence on retrial or rehearing of an issue is substantially the same as that upon which the appellate ruling was based. [Citations.]' [Citation.] Where, on remand, 'there is a substantial difference in the evidence to which the [announced] principle of law is applied, ... the [doctrine] may not be invoked.' [Citation.] Even where the appellate court reverses based on 'the "sufficiency of the evidence, " the rule of the law of the case may not be extended to be an estoppel when new material facts, or evidence, or explanation of previous evidence appears in the subsequent trial. [Citations.]' " (Id. at pp. 246-247.) Barragan concluded: "[N]othing in the law of the case doctrine itself limits the additional evidence that a party may introduce on retrial to that which 'could not have been presented at the first trial through the exercise of due diligence.' " (Id. at p. 247; see also People v. Boyer (2006) 38 Cal.4th 412, 440-443 [law of the case doctrine did not preclude new evidence on retrial showing dispositive facts are materially different than those facts addressed on appeal].)
C
Applying the above principles to the circumstances in this case, we conclude the trial court erred by concluding our 2007 opinion in Pointe I deprived it of jurisdiction or authority to consider Plaintiffs' 2009 motion to amend the 2008 amended judgment to add Weingarten as a cojudgment debtor. Construing the language and substance of our Pointe I opinion as a whole, we conclude our reversal of those portions of the original 2004 judgment naming Weingarten as a cojudgment debtor with WWI on Gosnell's breach of contract claim and with Atlas on PSDMU's conversion and nonpermanent trespass claims was unqualified. (Stromer v. Browning, supra, 268 Cal.App.2d at pp. 518-519; In re Anna S., supra, 180 Cal.App.4th at p. 1500; In re Justin S., supra, 150 Cal.App.4th at p. 1435.) As noted above, in Pointe I we concluded Plaintiffs did not show by substantial evidence, and the trial court did not find in its statement of decision, that denial of their 2004 motion to amend the judgment would cause an inequitable result. In our opinion's disposition, we reversed the "portions of the judgment making Weingarten jointly and severally liable to Gosnell for breach of the DMA and to PSDMU for conversion and nonpermanent trespass." Nothing in our opinion, including its disposition, can reasonably be construed as precluding new or further proceedings on remand regarding Plaintiffs' motion to amend the judgment to add Weingarten as a cojudgment debtor based on the alter ego doctrine. Because our reversal of those portions of the 2004 judgment was unqualified, the general rule discussed above regarding unqualified reversals applies and allows a "retrial" or other new or further proceedings on Plaintiffs' alter ego motion. (9 Witkin, Cal. Procedure, supra, § 870, p. 928; Weisenburg v. Cragholm, supra, 5 Cal.3d at p. 896; Weightman v. Hadley, supra, 138 Cal.App.2d at pp. 835-836; Erlin v. National Union Fire Ins. Co., supra, 7 Cal.2d at p. 549; Hall v. Superior Court, supra, 45 Cal.2d at p. 381.)
Our opinion in Pointe I did not have to include express language directing the trial court on remand to conduct a "retrial" or new or further proceedings on Plaintiffs' alter ego motion. Rather, those further proceedings were implicitly authorized by our opinion's unqualified reversal on that issue. (9 Witkin, supra, § 870, p. 929 ["An unqualified reversal ordinarily has the effect of remanding the cause for a new trial on all of the issues presented by the pleadings. It is unnecessary to add specific directions for this purpose in the judgment [on appeal]."].) Furthermore, the fact that our opinion in Pointe I included express directions for further proceedings on two other matters reversed on appeal does not show, or support a reasonable interpretation, that we intended to preclude new or further proceedings on the alter ego issue on remand.
Regarding those two other matters, we stated in our disposition in Pointe I that "[t]he portion of the judgment awarding punitive damages to Pointe is reversed and the matter is remanded for determination of whether Astra is entitled to punitive damages under Pointe's seventh cause of action for breach of fiduciary duty and, if so, the amount.... The order denying Pointe and Gosnell's motions for attorney fees is reversed and the matter remanded for determination of the amount of attorney fees to be awarded based on an apportionment of fees between claims for which they are recoverable and claims for which they are not recoverable."
Although Weingarten argues reversal of all or part of a judgment for insufficiency of the evidence is an exception to the general rule regarding unqualified reversals and precludes a retrial or new or further proceedings on remand, the cases she cites in support of that argument do not persuade us to reach that conclusion. Her cited cases involve special circumstances in which either: (1) a trial court erred by denying a motion for judgment notwithstanding the verdict (JNOV) based on insufficiency of the evidence; or (2) there was insufficient evidence to support an award of punitive damages and no new evidence would have been presented on remand. (See, e.g., Bank of America v. Superior Court, supra, 220 Cal.App.3d at p. 626 [general rule regarding unqualified reversals does not apply where JNOV motion was made and denied by trial court and appellate court reversed the judgment based on insufficiency of the evidence]; McCoy v. Hearst Corp., supra, 227 Cal.App.3d at p. 1661 [same]; Kelly v. Haag, supra, 145 Cal.App.4th at pp. 919-921 [reversing, without retrial, punitive damages award for insufficiency of the evidence]; Baxter v. Peterson, supra, 150 Cal.App.4th at pp. 679-682 [same].) Neither the holdings nor the reasoning in those special circumstance or exceptional cases persuade us that an unqualified reversal of a portion of a judgment denying an alter ego motion to amend the judgment precludes new or further proceedings on that motion on remand.
Because the general rule providing for retrials or other further proceedings on remand after an unqualified reversal applies to our disposition of the alter ego issue in Pointe I, we conclude the trial court erred by denying Plaintiffs' 2009 motion to amend its amended 2008 judgment entered on remand. Contrary to the trial court's conclusion, our opinion in Pointe I did not deprive the trial court of jurisdiction or authority to consider and conduct further proceedings regarding their 2009 motion.
Furthermore, we cannot conclude the trial court's error was harmless. Without discussing the details of the new evidence submitted by Plaintiffs in support of their 2009 motion, our review of that evidence shows it is reasonably probable they would have obtained a more favorable result had the trial court correctly concluded it had jurisdiction and authority on remand to consider the merits of that motion. (People v. Watson (1956) 46 Cal.2d 818, 836.) In fact, the trial court, in dicta, stated its decision "would change" (i.e., it would have granted the motion) if it had jurisdiction to consider the motion, describing Plaintiffs' new evidence as "compelling" and "establishing an 'inequitable result.' " The court further stated, in dicta, that it "finds this [new] evidence sufficient for the court to find an 'inequitable result' were Plaintiffs' motion to amend the judgment to make Weingarten liable for the damages against [WWI] and Atlas denied." We conclude the trial court's error caused a miscarriage of justice and undermines our confidence in the outcome of the proceedings, requiring reversal of its order denying the 2009 motion and remand of the matter for further proceedings. (Cal. Const., art. VI, § 13; In re Neely, supra, 6 Cal.4th at p. 909.)
We summarily reject Weingarten's assertion on appeal that Plaintiffs are estopped from asserting she should be held coliable with WWI under the alter ego doctrine because Gosnell, as a party to a contract with WWI, could have, and should have, bargained for Weingarten to become a contracting party under the DMA or, at least, for her personal guarantee of WWI's obligations under the DMA. The question whether estoppel should apply in a specific case generally is one for determination by the trial court in the first instance. (See, e.g., Petersen v. Cloverdale Egg Farms (1958) 161 Cal.App.2d 792, 797-798.)
In determining the issue of prejudicial error, "reasonably probable" does not mean more likely than not, but merely a reasonable chance or more than an abstract possibility. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) Alternatively stated, it is a probability sufficient to undermine our confidence in the outcome of the proceedings. (In re Neely (1993) 6 Cal.4th 901, 909.)
Nevertheless, in so concluding, we do not intend to express any opinion regarding the merits of Plaintiffs' 2009 motion.
On remand, the trial court should consider anew, or de novo, Plaintiffs' 2009 motion to amend its 2008 amended judgment to add Weingarten as a cojudgment debtor with WWI on Gosnell's breach of contract (and related attorney fees) claim and with Atlas on PSDMU's conversion and nonpermanent trespass claims, including de novo consideration of the unity of interest and inequitable result requirements for alter ego liability. In so doing, the trial court should consider the weight and credibility of any admissible new evidence submitted by Plaintiffs in support of their 2009 motion, whether submitted originally or on remand of this matter, which new evidence shall not be subject to any "due diligence" showing or limitation under the law of the case doctrine. (People v. Barragan, supra, 32 Cal.4th at p. 247; People v. Boyer, supra, 38 Cal.4th at pp. 440-443 [law of the case doctrine does not preclude new evidence on retrial showing dispositive facts are materially different than those facts addressed on appeal].)
We reject Plaintiffs' request that we direct the trial court on remand to enter a new order granting their 2009 motion without conducting further proceedings and considering the merits of that motion anew. In denying the 2009 motion, the trial court made certain statements regarding the "compelling" evidence establishing the "inequitable result" requirement and that it would have granted the motion if it had jurisdiction over the matter. However, those statements were dicta and should not be construed as binding findings made after a full and measured consideration of the merits of the motion, including the evidence submitted in support of and in opposition to that motion.
DISPOSITION
The order is reversed and the matter is remanded with directions for further proceedings consistent with this opinion. Plaintiffs shall be awarded their costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., HALLER, J.