Case Number: BC664548 Hearing Date: June 07, 2018 Dept: 47

Kyle Sommer v. Davron Rashidov, et al.

MOTION FOR JUDGMENT ON THE PLEADINGS RE: COMPLAINT

MOVING PARTY: Defendant Rapid Window Tinting, LLC

RESPONDING PARTY(S): Plaintiff Kyle Sommer

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS

Plaintiff was injured while working at Defendant’s workplace when a co-worker lost control of a car in the service bay and pinned Plaintiff between the car and a metal tool chest. Thereafter, Defendant drove Plaintiff to urgent care instead of calling 911.

Defendants Davron Rashidov and Rapid Window Tinting, LLC filed a Cross-complaint against Defendants Juan Bautista and Hollywood Car Wash for indemnity and contribution.

Defendant Rapid Window Tinting, LLC moves for judgment on the pleadings.

TENTATIVE RULING

Defendant Rapid Window Tinting, LLC’s motion for judgment on the pleadings as to the entire Complaint is DENIED.

DISCUSSION

Meet and Confer

It appears that the meet and confer requirement set forth in CCP § 439 was probably satisfied, although it is unclear. See Declaration of Frank J. Ozello.

Request For Judicial Notice

Defendant requests that the Court take judicial notice of the following: (1) Rapid Window Tinting LLC Statement of Information; (2) Articles of Organization; and (3) Business Search-Entity Detail. Requests Nos. 1 – 3 are GRANTED. The Court may take judicial notice of a business’ entity’s corporate status as reflected in the Secretary of State’s records. Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1286; Pedus Bldg. Servs. v. Allen (2002) 96 Cal.App.4th 152, 156 n.2.

Analysis

Defendant Rapid Window Tinting, LLC argues that the Complaint fails to alleges any facts sufficient to support any causes of action against Defendant because Defendant was not in existence at the time of the April 24, 2016 incident which caused Plaintiff personal injury. See Complaint, ¶ 29.

The Court has taken judicial notice as requested by Defendant that it appears that Rapid Window Tinting LLC did not exist as of April 24, 2016. See RJN Exhs. A – C. The Court also notes, however, that the Articles of Organization for Rapid Window Tinting LLC was filed on May 9, 2016–only 15 days after the April 24, 2016 incident—and also that Davron Rashidov is the only member of Rapid Window Tinting LLC. The Court[1] may eventually decide that this is indicia of a unity of ownership and an attempt to work an injustice on a potential judgment creditor.

The alter ego doctrine applies to limited liability companies. Corp. Code § 17703.04(b):

(b) A member of a limited liability company shall be subject to liability under the common law governing alter ego liability, and shall also be personally liable under a judgment of a court or for any debt, obligation, or liability of the limited liability company, whether that liability or obligation arises in contract, tort, or otherwise, under the same or similar circumstances and to the same extent as a shareholder of a corporation may be personally liable for any debt, obligation, or liability of the corporation; except that the failure to hold meetings of members or managers or the failure to observe formalities pertaining to the calling or conduct of meetings shall not be considered a factor tending to establish that a member or the members have alter ego or personal liability for any debt, obligation, or liability of the limited liability company where the articles of organization or operating agreement do not expressly require the holding of meetings of members or managers.

Corp. Code § 17703.04.

In Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 214, 220-24, the court held that outside reverse piercing of the corporate veil, i.e., where an outsider seeks to reach the assets of an entity for the debt of the individual member, applies to limited liability companies[2].

Plaintiff has sufficiently pled the factors of alter ego vis-à-vis Rashidov and Rapid Window Tinting, LLC at ¶ 10 of the Complaint. Of significance, Plaintiff specifically alleges that “[i]mmediately following the subject accident, Rapid filed for an LLC designation in a transparent effort to create an appearance that Rapid was separate and distinct from Car Wash, and to shield Rashidov and Rapid’s assets.” ¶ 10. Plaintiff also alleges commingling of funds and the ability of Rashidov to empty assets into the LLC. ¶ 11. Alter ego allegations may be pled generally and the principle factors for piercing the corporate veil—individual dominated the affairs of the corporation, unity of interest and ownership, corporation is a mere shell, diversion of income, inadequate capitalization, failure to issue stock and observe corporate formalities, adherence to fiction of separate corporate existence would work an injustice—may be alleged in conclusory terms and plaintiff may be given an opportunity to present evidence to support these allegations. First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 914-16.

Defendant does not cite any case law which holds that an entity must exist as of the date the underlying tort occurred in order for the alter ego doctrine to apply.[3]

As such, the motion for judgment on the pleadings as to the entire Complaint is DENIED.

Plaintiff to give notice, unless waived.

IT IS SO ORDERED.

Dated: June 7, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

[1] There is no right to jury on the issue of alter ego liability. Dow Jones Co. v. Avenel (1984) 151 Cal.App.3d 144, 147-48.

[2] The Court acknowledged that courts have held that outsider reverse piercing does not apply to corporations, but distinguished LLCs. Curci Investments, supra, 14 Cal.App.5th at 222-24.

[3] As an observation, Plaintiff did not plead successor corporation liability in the Complaint, as argued by Plaintiff in the opposition, so the Court has not consider whether this theory independently would also be sufficient to overcome the motion for judgment on the pleadings.