Filed 12/16/22 Beveridge v. Solor zano CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MICHAEL J. BEVERIDGE,
Plaintiff and Appellant,

v. YOLANDA SOLORZANO,
Defendant and Respondent. D079070

(Super. Ct. No. 37

- 2016

- 00038444

- CU

- BC

- CTL)

APPEAL from a postjudgment order of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Affirmed

. Keith H. Rutman for Plaintiff and Appellant. Niddrie Addams Fuller Singh and Rupa Singh for Defendant and Respondent

.

I
INTRODUCTION Michael J. Beveridge secured a default judgment against Makeover Max, Inc. (hereafter, Makeover Max) in a case involving the breach of a construction contract. Then, he moved to amend the judgment to add former2

Makeover Max officer and shareholder Yolanda Solorzano as an alter ego judgment debtor under Code of Civil Procedure section 187. 1 The trial court denied the motion, finding Beveridge failed to demonstrate eit her that Solorzano controlled the underlying litigation between Beveridge and Makeover Max, or that she and the company had a unity of interest and ownership

— both of which were necessary conditions to add Solorzano as an alter ego judgment debtor. We agree with the trial court that Beveridge did not establish Solorzano ’s control over the underlying litigation and affirm the denial order
on that basis

. Because we affirm the denial order on this b asis, i t is unnecessary for us to determine whether there was a unity of interest and ownership between Solorzano and Makeover Max.
II
BACKGROUND A. The Construction Contract In 2012, Beveridge retained Makeover Max to complete construction and repair projects at his residence . The parties signed a written construction contract, effective November 3, 2012. Frank Rogers (Rogers), a Makeover Max salesperson and Solorzano’s husband, entered into the
construction contract on behalf of the company.
At the time t he construction contract was signed, Solorzano served as
the c hief f

inancial o fficer and s ecretary of Makeover Max. Iliana Rogers Solorzano ( Iliana ) , the daughter of Solorzano and Rogers, served as the company’s chief executive officer. Solorzano owned 90 percent of the company’s shares and a third party owned 10 percent of its shares.

1 Further undesignated statutory references are to the Code of Civil Procedure

.3

Makeover Max began work under the construction contract, but Beveridge was dissatisfied with the progress and quality of the work . On or about March 25, 2013, he retained another construction firm to inspect and repair Makeover Max’s work.
B. The Litigation On October 31, 2016, Beveridge filed a complaint against Makeover Max, Solorzano, and Iliana f or breach of contract, deceit, fraud in the inducement, and negligent misrepresentation based on the company’s allegedly deficient work

. All three defendants defaulted and default judgment s were entered against them on June 26, 2017

. Thereafter,
Solorzan o and Iliana appeared in the action and moved to set aside the ir defaults and default judgments due to defective service of summons. T he court set aside the defaults and default judgments against them , leaving
intact a default judgment against Makeover Ma x for $53,813. In February 2019, the case proceeded to trial on Beveridge’s claims against Solorzano and Iliana

. However, soon after trial began, Beveridge voluntarily dismissed the se claims . Rather than proceeding against Solorzano and Iliana individually, he decided to pursue a theory that they were liable as alter egos of Makeover Max

. After it became apparent that Beveridge intended to pierce the corporate veil , Solorzano filed a motio n to vacate the default and default judgment against Makeover Max on grounds that the company was not served with process. She stated she was no longer an officer or shareholder of the company, but she argued she should nonetheless be allowed to pursue th e requested relief because the default judgment had a “profound effect” on her.
S he argued that Beveridge planned to move to amend the default judgment to add her as an alter ego judgment debtor and, “[w]ithout the default4

judgment, there would be absolut ely no claim ” against her

. T he court denied
the motion for reasons that are not apparent from the record

. Over the ensuing year, Beveridge conducted virtually no discovery on the issue of alter ego status. Nonetheless, o n June 12, 2020, he moved to

ame nd the judgment to add Solorzano as a judgment debtor. 2 He argued there was a unity of interest and ownership between Makeover Max and
Solorzano because: (1) she and her family members organized, operated, and managed the company ; (2) she was at one point a n officer and majority shareholder of the company; and (3) she purportedly commingled corporate and personal funds and treated corporate assets as her own. In support of his claim of comingled funds and personal use of corporate

asset s , Beveridge filed records obtained from Solorzano’s personal bank
account. Th e records included 14 checks ranging in amount from $2,000

– $5,000, which Makeover Max periodically issued to Solorzano in 2012 and 2013. They also included seven more recent de posit slips reflecting deposits into Solorzano’s account . The deposit s ranged in amount from $10,000

– $22,768 . T he deposit slips did not disclose the source of the deposited funds. On June 26, 2020, Solorzano opposed the motion to add her as an alter

eg o judgment debtor. She argued the motion should be denied because Beveridge failed to establish that she had control over the underlying litigation between Beveridge and Makeover Max. According to Solorzano, she resigned as a corporate officer and relinq uished all of her shares to Rogers on June 24, 2013. S he argued she did not even have the authority to hire

2 Beveridge also moved to amend the judgment to add Iliana as an alter ego judgment debtor. The trial court denied the motion. That ruling is not at issue in this appeal.5

counsel for the company or accept service on its behalf because she was not a
corporate officer, director, employee, or owner when the complaint was filed. 3 Solorzano argued the motion should be denied, in the alternative, because Beveridge did not establish a unity of interest and ownership between herself and Makeover Max . She argued he had merely proven that she was a former o fficer and shareholder of the company

— an insufficient basis upon which to find a unity of interest and ownership. S he submitted a declaration averring she never comingled funds or used corporate assets as her own. Further, with regard to the deposit slip s reflected in her bank records, she contended there was no evidence the deposited funds came from
Makeover Max or any of its clients or customers. On November 17, 2020, Beveridge filed a supplemental brief and evidence to “augment” his pending motion to amend the judgment. He largely repeated the same arguments from his motion. But, for the first time, he argued Solorzano had control of the litigation because she moved (albeit unsuccessful ly ) to vacate the default and default judgment against Makeover
Max

. On December 8, 2020, Solorzano filed a supplemental declaration addressing Beveridge’s allegations of commingled funds and personal use of corporate assets. She averred she received biweekly wages ranging from $3,000

– $5,000 when she worked for the company, which explained the periodic deposits she received from the company in 2012 and 2013. She also alleged she received income from other sources (specifically, from renting

3 Rogers died unexpectedly on October 4, 2014. T he appellate record and the parties’ briefs do not disclose what happened to Roger’s corporate shares after his death.6

billboard space and selling real estate), which explained the deposits shown on the deposit slips

. On December 11, 2020, the trial court denied Beveridge’s motion. The

court concluded he failed to establish that Solorzano controlled the underlying litigation between Beveridge and Makeover Max. In particular, it
credited Solorzano’s averment that she lost her ownership interest s and resigned from the company in mid

- 2013. Further, it found that Solorzano’s unsuccessful motion to vacate the default a nd default judgment against the company, filed on June 26, 2019, did “not support [the claim that ] Solorzano had control over the litigation with Makeover Max,” which had ended two years earlier with an entry of a default judgment. The court found that B everidge did not demonstrate a unity of interest
either . Regarding the allegations of commingled funds and personal use of corporate assets, the court noted the periodic payments from Makeover Max to Solorzano occurred while the company still employed her . Further, it
noted that Solorzano had an explanation for the recent deposits into her bank

account

— according to Solorzano, they came from other sources

. The court expressly found that Beveridge had made no showing that “these funds came from Makeover Ma x.”
III DISCUSSION

A. Legal Principles Beveridge moved to amend the judgment under section 187. 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 this7

Code or the statute, any suitable process or mode of proceeding may be adopted which may a ppear most conformable to the spirit of this Code. ” Under section 187, a court may amend a judgment to add additional judgment debtors and thereby make them liable under the judgment. ( Wolf Metals, Inc. v. Rand Pacific Sales, Inc. (2016) 4 Cal.App.5th 69 8, 703 ( Wolf
Metals ); NEC Electronics Inc. v. Hurt (1989) 208 Cal.App.3d 772, 778 ( NEC ).)

“ Judgments are often amended to add additional judgment debtors on the grounds that a person or entity is the alter ego of the original judgment
debtor. [Citations. ] This 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 , at p. 778.) To prevail on a motion to add an alter ego as a ju dgment debtor, a judgment creditor must satisfy three elements: “ 1) the parties to be added as judgment debtors had control of the underlying litigation and were virtually represented in that proceeding; 2) there is such a unity of interest and ownership that the separate personalities of the entity and the owners no longer exist; and 3) an inequitable result will follow if the acts are treated as those of the entity alone. ” ( Triyar Hospitality Management, LLC v. WSI (II)

– HWP, LLC (2020) 57 Cal.App.5th 636, 641 ( Triyar ) .)
The first element is rooted in due process concerns . A party may be added as a judgment debtor only if she controlled the underlying litigation
and was virtu ally represented in the underlying litigation because due process “ guarantees that any person against whom a claim is asserted in a judicial proceeding shall have the opportunity to be heard and to present his defenses. ” (

Motores de Mexicali, S.A. v. Superior Court (1958) 51 Cal.2d 172,
176 ( Motores ).) “ ‘ Control of the litigation sufficient to overcome due process objections may consist of a combination of factors, usually including the8

financing of the litigation, the hiring of attorneys, and control over the course of the litigation. ’ ” (

NEC, supra , 208 Cal.App.3d at p. 781.) “ Without control, considerations of due process preclude the addition of a party after the judgment is a fait accompli. ” ( Oyakawa v. Gillett (1992) 8 Cal.App.4th 628,
632 ( Oyakawa ) .)
The second and third elements set forth the conditions neces sary for a judgment creditor to pierce the corporate veil based on a party’s alter ego

status. “ Under the alter ego doctrine, ... when the corporate form is used to perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, the courts will ignore the corporate entity and deem the corporation ’ s acts to be those of the persons ... actually controlling the corporation, in most instances the equitable owners. [Citations.] The alter ego doctrine prevents individuals ... from misusing the corporate laws by the device of a sham corporate entity formed for the purpose of committing fraud
or other misdeeds. ’ ” ( Wolf Metals, supra , 4 Cal.App.5th at p. 7 03.)
We review a n order on a postjudgment motion to add a n alter ego judgment debtor for abuse of discretion. ( Triyar, supra , 57 Cal.App.5th at

p. 640; Wolf Metals, supra , 4 Cal.App.5th at p. 703.) To the extent the trial court’s exercise of discretion is based on disputed factual findings, we review
the court ’s factual findings for substantial evidence. ( Ibid .)

B. Beveridge Did Not Establish That Solorzano Controlled the Underlying Litigation or Had Effective Representation in the Underlying Litigation Beveridge appeals the postjudgment order denying his motion to amend the judgment to add Solorzano as an alter ego judgment debtor. The trial court denied the motion after finding that Beveridge did not satisfy either of two necessary requirements

— (1) he did not show Solo rzano had control of

— and was virtually represented in

— the underlying litigation between Beveridge and Makeover Max; and (2) he did not show that9

Solorzano and Makeover Max shared a unity of interest and ownership. In
his opening brief

, Beveridge challenges the second of these findings, but he presents no arguments concerning the first of these finding s

.

“ ‘ Courts will ordinar ily treat the appellant ’ s failure to raise an issue in his or her opening brief as a waiver of that challenge. ’ ” ( In re Marriage of
Ankola (2020) 53 Cal.App.5th 369, 372, fn. 3 ; see Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 ( Allen ) [“ When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration. ”] .) By failing to address the control and virtual representation finding in his opening brief , Beveri dge has waived any challenge to th at finding. And, because that pivotal finding is unchallenged, Beveridge cannot succeed in this appeal. 4
Waiver aside , we discern no error in the trial court’s finding that
Solorzano had no control over

— or virtual repre sentation in

— the underlying litigation between Beveridge and Makeover Max. T hree years before Beveridge sued Makeover Max, Solorzano relinquished her corporate officer positions as well as her ownership in the company. No evidence showed that she maintained any positions as director, officer, employee, or owner of the company at any point during the litigation. There was no evidence that she
made any litigation decisions on behalf of the company . Nor was there
evidence that she hired or funded attorneys (or had the capacity to hire or

4 In his reply brief, Beveridge asserts in cursory fashion that Solorzan o had control over the underlying litigation. E ven if he had made this claim in his opening brief

, it would not be meritorious because he has provided no factual analysis, legal authorities, or cogent reasoning to support his perfunctory assertion. “ We a re not required to examine undeveloped claims or to supply arguments for the litigants. ” ( Allen, supra , 234 Cal.App.4th at p. 52.)10

fund attorneys) for the company. In fact, no attorney made an appearance for the company, which became a judgment debtor by way of a default judgment.
Given these facts and circumstanc es , the trial court did not err in finding that Solorzano had no control over, or virtual representation in, the underlying litigation. ( See Motores, supra , 51 Cal.2d at p

. 176 [ alleged alter

egos could not be added as judgment debtors where the y did not participate
in the company’s defense and the judgment was secured by default ]; Wolf Metals, supra , 4 Cal.App.5th at p p

. 708

– 709 [ alleged alter egos could not be added as judgment debtors where “ the judgment against [the company] was entered by default ” ]; NEC, supra , 208 Cal.App.3d at p. 781 [ reversing order adding alter ego judgment debtor and finding that “[t] here was no defense for [the alter ego] to control ” because the company did not defend itself at trial];

see also Oyakawa , supra , 8 Cal.App.4th at p. 632 [wife “ had no involvement
with and no control over [husband’s] defense of [plaintiff’s] action. Accordingly, she should not have been added as a judgment debtor. ”] .)
Because Solorzano had no control over the underlying li tigation , or virtual representation in that proceeding , it is unnecessary for us to assess
whether Solorzano was an alter ego of Makeover Max. ( Hall v. Rite Aid Corp. (2014) 226 Cal.App.4th 278, 297 [there is a “general rule against resolving
issues unnec essary to the disposition of [an] appeal”].)11 IV DISPOSITION The postjudgment order is affirmed. Respondent is entitled to her appellate costs.

McCONNELL, P. J.

WE CONCUR:

O’ROURKE , J.

DO , J.