NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RENO-TAHOE SPECIALTY, INC., 

Plaintiff, 

and 

MICHAEL CHANG, 

Creditor-Appellant, 

 v. 

MUNGCHI, INC.; RICKY NOH, 

Defendants-Appellees, 

and 

TOP DESIGN; KYUNG SU LEE; MC 

CREW, LTD.; THE STYLE N, INC.; 

SILLA AMERICA, INC.; DBDE, INC.; I 

LOVE P&A, LTD., 

Defendants.

No. 18-56411 

D.C. No. 

2:16-cv-00663-GHK-AGR 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

DEC 13 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Page 2 of 5

Submitted December 11, 2019**

Pasadena, California

Before: N.R. SMITH and WATFORD, Circuit Judges, and KORMAN,*** District 

Judge.

1. Ricky Noh argues that this court lacks jurisdiction because Michael 

Chang failed to file a timely notice of appeal. We disagree. Chang filed a timely 

notice of appeal from the district court’s September 19, 2018 order denying 

Chang’s renewed motion to amend the Nevada judgment to add Noh as a judgment 

debtor. That order is the final judgment in this matter because the district court

had earlier refused to rule on Chang’s renewed motion to amend the Nevada 

judgment until he sought relief in the district court for the District of Nevada. 

Chang complied with the court’s order but was unable to obtain relief in the 

Nevada district court. At that point, he returned to the California Central district 

court with this suit, and, in the court’s September 19, 2018 order, Chang’s renewed 

motion to amend the Nevada judgment was finally denied. 

2. The district court denied Chang’s renewed motion to amend the Nevada 

judgment, finding that Chang failed to meet his burden of establishing the 

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Edward R. Korman, United States District Judge for 

the Eastern District of New York, sitting by designation.
Page 3 of 5

necessary element of control. We review for clear error the district court’s 

findings on whether a party is properly added to a previous judgment. See Katzir’s 

Floor & Home Design, Inc. v. M-MLS.COM, 394 F.3d 1143, 1148 (9th Cir. 2004).

Under governing California law, a plaintiff seeking to amend a judgment to add a 

defendant must prove that (1) the defendant is “the alter ego of the old party,” and 

(2) the defendant “controlled the litigation” that gave rise to the judgment. Triplett 

v. Farmers Ins. Exch., 29 Cal. Rptr. 2d 741, 743 (Ct. App. 1994). The second 

element protects a defendant’s due process right to present a defense before being 

held to account for a monetary judgment. See id. The plaintiff bears the burden of 

proving both elements by a preponderance of the evidence. Wollersheim v. Church 

of Scientology Int’l, 81 Cal. Rptr. 2d 896, 897 (Ct. App. 1999). 

In the present appeal, the parties dispute only whether Chang failed to 

demonstrate by a preponderance of the evidence that Noh controlled the Nevada 

litigation. To assess whether a plaintiff has carried the burden of proving a 

defendant’s “[c]ontrol of the [underlying] litigation sufficient to overcome due 

process objections,” courts properly consider a “combination of factors, usually 

including the [defendant’s] financing of the litigation, . . . hiring of attorneys, and 

control over the course of the litigation.” NEC Elecs. Inc. v. Hurt, 256 Cal. Rptr. 

441, 446 (Ct. App. 1989). The district court did not clearly err by denying Chang’s 

renewed motion to amend the Nevada judgment.
Page 4 of 5

Chang provided no evidence that Noh funded the Nevada litigation. Chang 

supplied only some evidence tending to prove that Noh hired Mungchi’s counsel. 

Evidence proving that Noh hired Mungchi’s counsel is insufficient, standing alone, 

to establish the level of control required to address due process concerns. See 

Minton v. Cavaney, 364 P.2d 473, 476 (Cal. 1961).

Chang also provided evidence that Noh oversaw all aspects of Mungchi’s 

business, served as Mungchi’s business deponent, was Mungchi’s only 

representative at the settlement conference, and testified at trial. These facts show 

merely that Noh fulfilled the roles that any corporation’s president would likely 

fulfill, even if he did not control the course of the litigation. As courts have noted, 

“[i]t is not sufficient that . . . [a defendant] appears as a witness or cooperates 

without having control.” Minton, 364 P.2d at 476 (internal quotation marks 

omitted). In other words, these facts do not compel the conclusion that Noh 

controlled the course of the Nevada litigation.1 Cf. Alexander v. Abbey of the 

Chimes, 163 Cal. Rptr. 377, 380 (Ct. App. 1980); Bank of Montreal v. SK Foods, 

LLC, 476 B.R. 588, 601 (N.D. Cal. 2012), aff’d sub nom. Bank of Montreal v. 

1 Chang also supplied a declaration from John Krieger, the attorney who 

represented Reno-Tahoe in the Nevada litigation, which stated that, based on his 

“personal observations,” Krieger believed “Ricky Noh . . . was in control of the 

lawsuit.” Krieger’s declaration failed to specify the “personal observations” that 

provided the foundation for his conclusory statement that Noh controlled the 

Nevada litigation. As a result, the district court correctly accorded it no weight.
Page 5 of 5

Salyer, 599 F. App’x 706 (9th Cir. 2015). Based on this evidence, we are not “left 

with the definite and firm conviction” that the district court made a mistake 

denying Chang’s renewed motion to amend the Nevada judgment.2 Easley v. 

Cromartie, 532 U.S. 234, 242 (2001). 

AFFIRMED.

2 Without conducting an evidentiary hearing to assess credibility, the district court 

appeared to credit the two declarations submitted by Noh to show that he did not 

control the course of the Nevada litigation. Because Chang attacks the veracity of 

the declarations, we agree with him that the district court erred insofar as it gave 

the declarations any weight without first making a credibility determination 

following an evidentiary hearing. Nonetheless, even giving no weight to Noh’s 

declarations, we are still unable to find clear error in the district court’s denial of 

Chang’s renewed motion to amend the Nevada judgment. Chang supplied 

evidence tending to prove only that Noh hired Mungchi’s counsel and that he 

participated in the litigation as any company’s president likely would.