Filed 4/4/19 Shered Holiday, LLC v. American Construction Corp. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

SHERED HOLIDAY, LLC,

Plaintiff and Appellant,

v.

AMERICAN CONSTRUCTION CORP.,

Defendant and Respondent.

E069095

(Super.Ct.No. RIC516964)

OPINION

APPEAL from the Superior Court of Riverside County. David E. Gregory, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Law Offices of Eric Michael Papp and Eric Michael Papp for Plaintiff and Appellant.

Gibbs Giden Locher Turner Senet & Wittbrodt, Richard J. Wittbrodt, Sara Kornblatt and Molly E. Healy for Defendant and Respondent.

In February 2009, plaintiff and appellant Shered Holiday, LLC (Holiday) obtained a judgment against defendant and respondent American Construction Corporation (American Construction), which included damages in the principal sum of $208,548. In May 2017, Holiday filed a motion to amend the judgment to add Tofel Construction, LLC (Tofel) and American Construction Hotel Corp. (American Hotel) as judgment debtors. Holiday’s theory was that Tofel and American Hotel “are alter egos and successor corporations” of American Construction. The trial court denied Holiday’s motion to amend the judgment.

Holiday raises three issues on appeal. First, Holiday contends the trial court misunderstood Holiday’s evidence and argument. Second, Holiday asserts the trial court misunderstood the relevant law. Third, Holiday contends that equity requires the judgment be amended. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. JUDGMENT

Holiday hired American Construction to build a Holiday Inn Express (the Hotel) in Corona. The construction of the Hotel was delayed, contained defects, and was unfinished by American Construction. Holiday and American Construction went to arbitration, where Holiday prevailed. In February 2009, the trial court affirmed the arbitration award.

B. MOTION

1. AMERICAN CONSTRUCTION TO TOFEL

Holiday filed a motion to amend the 2009 judgment. Holiday sought to add Tofel as a judgment debtor. Holiday asserted that American Construction’s website provided “that American Construction Corp is ‘now Tofel Construction.’ “ Holiday contended that evidence “alone should be enough for the Court to add Tofel Construction as a judgment debtor.” However, Holiday asserted additional evidence also established that Tofel was the alter ego of American Construction.

Brand Eigen was the president, project manager, chief financial officer, estimator, and responsible managing officer for American Construction. Holiday asserted Eigen was now the “Director of the Hotel Division” at Tofel. Tofel’s website included 41 construction projects that were also listed on American Construction’s website. The Hotel was listed as a project on Tofel’s website and on American Construction’s website. Tofel and American Construction list the same physical address, telephone number, and fax number on their respective websites.

Holiday asserted that Tofel and American Construction merged, that Tofel was a continuation of American Construction, and that the merger was entered into fraudulently so American Construction could escape its debts.

2. AMERICAN CONSTRUCTION TO AMERICAN HOTEL

In its motion, Holiday also asserted that American Hotel should be added to the 2009 judgment as a judgment debtor. American Construction registered in California in 1999. American Hotel registered in California in January 2013. Eigen was the president, secretary, treasurer, director, and sole shareholder of American Construction and American Hotel. American Construction and American Hotel have different contractor’s license numbers, but both licenses are held by Eigen. The New Mexico Secretary of State lists the same physical address for American Construction and American Hotel. The California Secretary of State lists the same physical address and same agent for service of process for American Construction and American Hotel. American Construction and American Hotel share the same source code for their websites. Holiday asserted that American Hotel was the alter ego of American Construction, and therefore should be added to the 2009 judgment as a judgment debtor.

3. EVIDENCE

Holiday attached a variety of exhibits to its motion. The first exhibit was a printout from the California Secretary of State’s website providing American Construction’s physical address and agent for service of process. The second exhibit was a printout from the California Contractors State License Board website providing information about American Construction’s contractor’s license. The third exhibit was the 2009 judgment confirming the arbitration award.

The fourth exhibit was a screenshot of Tofel’s website showing its physical address and the line “American Construction is now Tofel Construction.” The fifth exhibit was a printout from Tofel’s website reflecting biographical information about Eigen. The sixth exhibit was a website printout reflecting to whom Tofel’s website was registered. The seventh exhibit was a printout from Tofel’s website providing information about Jim Peterson, who was a project manager.

The eighth exhibit was a printout from American Construction’s website reflecting biographical information about Eigen. The ninth exhibit included (A) a printout from American Construction’s website that provided a “completed projects” list, including the Hotel, and (B) a screenshot of Tofel’s website concerning projects under construction, which included a Hampton Inn in El Centro. The tenth exhibit was a printout from Tofel’s website showing its hotel projects, and the Hotel was included among the projects. The eleventh exhibit was a printout from Tofel’s website reflecting its address in Tucson. The twelfth exhibit was a printout from the California Secretary of State’s website providing information about American Hotel.

The thirteenth exhibit was a printout from the California Contractors State License Board website providing information about American Hotel’s contractor’s license. The fourteenth exhibit was the Statements of Information for a Foreign Corporation filed by American Construction with the California Secretary of State. The fifteenth exhibit was the Statements of Information for a Foreign Corporation filed by American Hotel with the California Secretary of State.

The sixteenth exhibit included a printout from the Arizona Corporation Commission website reflecting information about American Construction, and documents by American Construction that were filed with the Arizona Corporation Commission. The seventeenth exhibit included a printout from the Arizona Corporation Commission website reflecting information about American Hotel, and American Hotel documents that were filed with the Arizona Corporation Commission. The eighteenth exhibit was a printout from the New Mexico Secretary of State’s website concerning American Construction. The nineteenth exhibit was a printout from the New Mexico Secretary of State’s website concerning American Hotel.

Holiday provided the declaration of Eric Papp. Papp was Holiday’s attorney. Papp declared that he printed pages from various websites, such as the California Secretary of State’s website, American Construction’s website, and the California Contractors State License Board website.

Holiday provided the declaration of Edward Gilmore, who was the managing member of Holiday. Gilmore declared that Holiday had not received any money from American Construction for the 2009 judgment. Gilmore asserted that Holiday was “owed the entire principal amount of the judgment ($208,548.00) plus 10% simple interest per year ($166,838.40) for a total outstanding amount of $375,416.40.” Gilmore declared that he printed information from Tofel’s website and American Construction’s website.

Holiday provided the declaration of Scott Faucher. Faucher was an information technology consultant. Faucher reviewed the source code for Tofel’s website and American Construction’s website. Faucher concluded the source code for Tofel’s website indicated it was Tofel’s genuine website—not a spoofed/hoax site. Faucher concluded the source code for American Construction’s website indicated it was American Construction’s genuine website—not a spoofed/hoax site.

Holiday provided the declaration of Kenneth Rulon. Rulon was former chief of police for the City of Colton and was a private investigator. Rulon investigated whether Tofel’s website and American Construction’s website were authentic. Rulon concluded that the website, which Holiday referred to as belonging to American Construction, was American Construction’s official website. Rulon concluded that the website, which Holiday referred to as belonging to Tofel, was Tofel’s official website.

C. OPPOSITION

1. POINTS AND AUTHORITIES

Tofel opposed Holiday’s motion to amend the judgment. Tofel explained that it was formed in 1984 and had one managing member, T.A. Construction, Inc. Tofel’s officers included Steven Tofel and Richard Tofel. Tofel’s directors included Sallie Tofel, Richard Tofel, Steven Tofel, and Shirley Tofel.

In 2015, Tofel created a new division of its company. Tofel hired Eigen to work as director of Tofel’s Hotel Construction Division. Eigen was a salaried employee of Tofel. An express term of Eigen’s employment with Tofel was that he “wrapped up all operations of [American Hotel].”

Tofel asserted that Holiday was arguing for successor liability—not alter ego liability. Tofel contended that it expressly denied liability for any debts of American Construction and American Hotel in Eigen’s employment contract. Tofel asserted it did not merge with American Construction or American Hotel. Tofel explained that no assets were transferred from American Construction or American Hotel to Tofel, and there were no common shareholders, directors, or officers between Tofel and American Construction or American Hotel.

Tofel contended it was not a continuation of American Construction or American Hotel. Tofel explained that it has existed since 1984. Tofel asserted Eigen was an employee of Tofel, and there were no shared shareholders, directors, or officers of Tofel and American Construction. Next, Tofel contended that Holiday failed to prove there was fraud in a transaction between Tofel and American Construction. Tofel asserted that there were no transactions between Tofel and American Construction, and there was no evidence of a fraudulent intent, i.e., an intent to defraud creditors. Tofel asserted that Holiday failed to meet its burden of proof, and therefore Holiday’s motion should be denied.

2. EVIDENCE

Tofel submitted the declaration of Steven Tofel (Steven). Steven declared that he was the President of Tofel, and that Tofel was formed in 1984. In 2015, Steven explained to Eigen, during Eigen’s job interview, that Tofel was not interested in acquiring or merging with American Hotel. Steven informed Eigen that Tofel was only interested in hiring Eigen as an employee. Eigen accepted the job offer as director of Tofel’s Hotel Division and began working for Tofel in September 2015. Eigen’s job duties at Tofel include marketing, estimating, and overseeing the construction of hotels. Eigen was not an officer or director of Tofel.

Tofel submitted Eigen’s declaration. Eigen declared that he was employed as Tofel’s Director of the Hotel Division. American Construction was formed in 1978 by Eigen’s father. In 1993, Eigen began working for American Construction. In May 2005, American Construction entered into a contract to build the Hotel. In October 2007, Eigen’s father resigned as president and CEO of American Construction, but he remained on the board of directors. Eigen became American Construction’s new president, CEO, treasurer, and director.

In July 2010, Eigen formed American Hotel. Eigen was the sole shareholder and sole director of American Hotel. American Hotel operated in the hotel construction business. In 2015, Eigen found the hotel construction business was “more difficult.” For example, it was “more difficult to obtain bonding for construction projects in Arizona.” Eigen decided to close American Construction and American Hotel, and work as an employee for “a larger general contracting firm.” Eigen interviewed “with a few local construction firms,” and ultimately accepted the job at Tofel. During the job interview, Steven “stressed that Tofel was looking to hire [Eigen] as an employee of Tofel and did not want to buy or merge with [American Construction] or [American Hotel].” Eigen has never been a member, manager, or shareholder of Tofel.

Eigen supported his declaration with a copy of American Construction’s 2007 written consent in lieu of an annual meeting, reflecting Eigen and his father were directors of American Construction. Eigen also provided a copy of his employment contract with Tofel. The employment contract provided, “Eigen will wrap up all operations of American [Hotel] and Tofel will have no obligations for any of [American Hotel’s] liabilities.”

The employment contract further provided, “A. Tofel and Eigen agree that Tofel shall use the name American Hotel Construction as a dba during the initial six months of Tofel’s hotel construction operations for the purpose of creating a smooth transition of American’s good will and reputation to Tofel. [¶] B. Eigen shall provide Tofel with American’s trade and customer contacts. [¶] C. Tofel will take those steps necessary to maintain the American [Hotel] name through telephone, e-mail and other procedures until such time as the Tofel [sic] achieves name recognition in the hotel industry.”

Tofel provided the declaration of Molly Healy. Healy’s declaration included (1) Tofel’s articles of incorporation; (2) a printout of the Arizona Corporation Commission’s website concerning Tofel; (3) a printout of the Arizona Registrar of Contractor’s website concerning Tofel; and (4) a printout of the Arizona Registrar of Contractor’s website concerning American Hotel.

3. OBJECTIONS

Tofel objected to Holiday’s evidence. Tofel presented (1) 13 pages of objections to Gilmore’s declaration; (2) 20 pages of objections to Rulon’s declaration; (3) nine pages of objections to Faucher’s declaration; and (4) 17 pages of objections to Papp’s declaration.

D. REPLY

Holiday filed a reply to Tofel’s opposition. Holiday asserted, “ ‘American Construction is Now Tofel Construction.’ As shown below, those are the words of Tofel Construction on the website of the company it now has demonstrated that it purchased for no consideration.” Holiday contended that (1) Tofel did not have a hotel construction division prior to hiring Eigen; (2) Tofel took American Hotel’s contacts; (3) Tofel was using American Hotel’s good will; and (4) Tofel did not pay any consideration for American Hotel’s contacts and good will. Further, Holiday asserted that Tofel took over the construction of a Hampton Inn in El Centro, which had been started by American Construction. Holiday contended that all contact information for American Construction now led to Tofel—American Construction’s phone number, physical address, and e-mail, were all the same as Tofel’s phone number, address, and e-mail.

E. HEARING

The trial court held a hearing on Holiday’s motion to amend the 2009 judgment. The trial court issued a tentative ruling denying the motion because “there were not sufficient ties made, financial or other essential ties.” Holiday argued that Tofel’s website reflects American Construction is now Tofel. Holiday said, “I don’t know how we get past that admission.” The trial court responded, “Well, . . . if I were to rule on the evidentiary objections submitted in the opposition, I would sustain each and every one of them. Your attempt to get Internet web pages [sic] in as evidence admissible in this court probably fails for lack of foundation. But even if they come in, they are of so little weight that they do not tip the scales in favor of a ruling in favor[ of] your clients, and that was the basis for my tentative ruling.

“Something, again, on a web page [sic] that says, ‘We’re now this corporation’ because of the fact that one of their previous officers or directors had an affiliation with the previous corporation is not the type of connection that I find to be sufficient enough for purposes of holding them liable for a judgment when . . . the connecting corporation, which is I believe American Hotel . . . was in itself a stand-alone corporation, was not formed till two or three years after this judgment was entered. And if you look at that web page [sic], and I looked at it in your declaration, it says American [Hotel]. It says American Construction now, but it refers to the other corporation. That’s not sufficient. It’s just not.

“Because what you’re trying to do is say that when someone has held an employment or an officership or a directorship or an RMO or RME position with a previous corporation, basically any place they go after that, they are bound—that new corporation, that new LLC, that new entity is bound by any judgment that was entered against some other corporation with which they were involved many, many years ago and, in fact, again, the connecting corporation here wasn’t even formed until after this judgment was entered.”

Holiday said the trial court needed to “look at the connection between [American Construction] and [American Hotel],” because Eigen was the president, CEO, secretary, CFO, and RMO of both entities. The following exchange occurred:

“The Court: And, Counsel, I’m assuming you do business litigation, business formation; correct?

“[Holiday’s Attorney]: I do.

“The Court: I’ve bet you’ve formed multiple corporations for the same individual. Haven’t you?

“[Holiday’s Attorney]: Yes, Your Honor.

“The Court: We all have. That’s not enough of a connection without something more.”

The trial court denied Holiday’s motion to amend the judgment.

DISCUSSION

A. INTERPRETING HOLIDAY’S ARGUMENT

Holiday’s argument lacks clarity. For example, in Holiday’s motion it argued, “Here, as will be established below, the Court should add the alter ego and successor corporations, Tofel . . . and [American Hotel], as judgment debtors so that [Holiday] may enforce its judgment against the proper parties.” As the motion continued, Holiday referred to Tofel as “the alter ego,” but then provided law concerning a successor corporation—not the law for an alter ego. In the concluding paragraph in its motion, Holiday asserted that Tofel “is merely a renaming and continuation” of American Construction, and also asserted that Tofel and American Hotel are “alter egos” of American Construction. We interpret Holiday’s argument as asserting (1) American Hotel was an alter ego of American Construction; and (2) Tofel was a successor of American Construction.

B. LAW FOR AMENDING A JUDGMENT

Code of Civil Procedure section 1287.4 provides, “If an [arbitration] award is confirmed, judgment shall be entered in conformity therewith. The judgment so entered has the same force and effect as, and is subject to all the provisions of law relating to, a judgment in a civil action of the same jurisdictional classification; and it may be enforced like any other judgment of the court in which it is entered, in an action of the same jurisdictional classification.”

“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.’ [Citation.] 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.)

C. STANDARD OF REVIEW

We apply the abuse of discretion standard of review. (Carolina Casualty Ins. Co. v. L.M. Ross Law Group, LLP (2012) 212 Cal.App.4th 1181, 1189.) A ruling constitutes an abuse of discretion when it is “ ‘ “so irrational or arbitrary that no reasonable person could agree with it.” ’ ” (David v. Hernandez (2017) 13 Cal.App.5th 692, 698.)

D. MISUNDERSTANDING THE EVIDENCE

Holiday contends the trial court abused its discretion by misunderstanding Holiday’s argument and the evidence presented. Holiday asserts the trial court believed that Holiday’s argument was based solely upon Eigen being part of American Hotel, American Construction, and Tofel. Holiday contends it provided the trial court with much more evidence and argument, but the trial court did not grasp the evidence and Holiday’s theories.

Holiday points to a variety of evidence to support its assertion that there was more to its evidence than Eigen being part of all three entities: (1) a website that read, “ ‘American Construction is now Tofel Construction’ ”; (2) Tofel uses American Construction as a dba; and (3) Tofel did not pay any consideration when it acquired or merged with American Construction.

The trial court remarked on the evidence presented by Holiday. In particular, the trial court said, “[I]f I were to rule on the evidentiary objections submitted in the opposition, I would sustain each and every one of them. Your attempt to get Internet web pages in as evidence admissible in this court of law probably fails for lack of foundation. But even if they come in, they are of so little weight that they do not tip the scales in favor of a ruling in favor[ of] your clients.” The trial court’s comments reflect that it was aware of other evidence in the case that was meant to show the connection between American Construction and Tofel, such as the website evidence, but that it found the evidence to be unpersuasive, and likely inadmissible.

The trial court also said, “I believe American Hotel . . . was in itself a stand-alone corporation, was not formed till two or three years after this judgment was entered. And if you look at that web page, and I looked at it in your declaration, it says [American Hotel]. It says American Construction now, but it refers to the other corporation. That’s not sufficient. It’s just not.” The trial court’s comments reflect it considered Holiday’s evidence. The trial court looked at the webpage, it looked at Papp’s declaration, and it looked at the incorporation information for American Hotel. Thus, the record reflects the trial court understood the variety of evidence that was presented by Holiday. The trial court did not mistakenly believe that Holiday’s only evidence concerned Eigen being part of all three entities.

In regard to understanding Holiday’s argument, at the beginning of the hearing, the trial court said, “You can trust everything submitted in writing has been carefully considered by the Court and was taken into consideration when the Court posted its tentative ruling.” Holiday argued that American Hotel and American Construction were the same entity because “[I]t’s the same name. It is—Mr. [Eigen] is the president of both corporations. He is the CEO, the secretary, the CFO, he’s the RMO of both.” The trial court responded, “Counsel, you’re repeating what’s in your moving paperwork already. I’ve read that all and rejected it all.”

The trial court’s comments reflect it had read Holiday’s argument and was familiar with the case. Holiday did not assert the trial court was incorrect, i.e., that the argument was not in its motion or reply. Thus, it appears the trial court was correct and had an understanding of Holiday’s arguments. Therefore, we are not persuaded that the trial court misunderstood the depth of Holiday’s argument. In sum, we conclude the trial court did not err.

E. MISUNDERSTANDING THE LAW

1. PROCEDURAL HISTORY

During the hearing, the following exchange took place:

“[Holiday’s Attorney]: I just wanted to make sure that the Court appreciated the close connection between the Defendant corporation, the new corporation, and then that corporation on Tofel.

“The Court: And, Counsel, I’m assuming you do business litigation, business formation; correct?

“[Holiday’s Attorney]: I do.

“The Court: I’[ll] bet you’ve formed multiple corporations for the same individual. Haven’t you?

“[Holiday’s Attorney]: Yes, Your Honor.

“The Court: We all have. That’s not enough of a connection without something more.

“[Holiday’s Attorney]: But—well, Your Honor, the advice is always don’t do the same line of business. Don’t have the same officers. Don’t have the same clients. Don’t—all those things go into it.

“The Court: And you—that may be good advice, but none of that is sufficient to connect them and you know that.”

2. ALTER EGO

Holiday contends the trial court erred by misunderstanding the relevant law.

“The terminology ‘alter ego’ or ‘piercing the corporate veil’ refers to situations where there has been an abuse of corporate privilege, because of which the equitable owner of a corporation will be held liable for the actions of the corporation. [Citation.] The requirements for applying the ‘alter ego’ principle are thus stated: ‘ “ ‘[I]t must be made to appear that the corporation is not only influenced and governed by that person [or other entity], but that there is such a unity of interest and ownership that the individuality, or separateness, of such [entity] and corporation has ceased, and the facts are such that an adherence to the fiction of the separate existence of the corporation would, under the particular circumstances, sanction a fraud or promote injustice.’ ” ’ [Citations.] Among the factors to be considered in applying the doctrine are commingling of funds and other assets of the two entities, the holding out by one entity that it is liable for the debts of the other, identical equitable ownership in the two entities, use of the same offices and employees, and use of one as a mere shell or conduit for the affairs of the other.” (Roman Catholic Archbishop v. Superior Court (1971) 15 Cal.App.3d 405, 411, italics omitted.) “No one characteristic governs, but the courts must look at all the circumstances to determine whether the doctrine should be applied.” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538-539.)

The trial court’s comment that evidence of the same line of business, same clients, and same corporate officers is insufficient to prove American Hotel was an alter ego of American Construction was a correct statement of the law. There are a variety of factors that need to be proven, including the failure to segregate corporate records, inadequate capitalization, commingling of funds, and the holding out of shared debt liabilities. (Sonora Diamond Corp. v. Superior Court, supra, 83 Cal.App.4th at pp. 538-539.) The record reflects that the trial court understood the multiple factors that are involved in ruling on a theory of alter ego liability. In sum, the record reflects the trial court did not err.

3. SUCCESSOR CORPORATION

Holiday contends the trial court erred by misunderstanding the relevant law.

The following is “the rule ordinarily applied to the determination of whether a corporation purchasing the principal assets of another corporation assumes the other’s liabilities. As typically formulated the rule states that the purchaser does not assume the seller’s liabilities unless (1) there is an express or implied agreement of assumption, (2) the transaction amounts to a consolidation or merger of the two corporations, (3) the purchasing corporation is a mere continuation of the seller, or (4) the transfer of assets to the purchaser is for the fraudulent purpose of escaping liability for the seller’s debts.” (Ray v. Alad Corp. (1977) 19 Cal.3d 22, 28; see also McClellan v. Northridge Park Townhome Owners Assn. Inc. (2001) 89 Cal.App.4th 746, 753-754.)

The trial court’s comments reflect that it understood the law. The trial court correctly stated that the law required more evidence than Holiday provided, e.g., the trial court said, “That’s not enough of a connection without something more.” The trial court’s comment was accurate in that Holiday failed to present evidence to complete a finding that Tofel was a successor of American Construction.

For example, Holiday did not present evidence (1) of an agreement of assumption; (2) of a merger between American Construction and Tofel, e.g., Tofel may have acquired assets, such as American Construction’s good will, but there is nothing indicating Tofel acquired all of American Construction’s assets (see People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 160-161); (3) that Tofel is a continuation of American Construction, given the different corporate officers (see Cleveland v. Johnson (2012) 209 Cal.App.4th 1315, 1332); and (4) of an intent to defraud. In sum, the trial court’s comments reflect it understood the law. Accordingly, we conclude the trial court did not err.

E. EQUITY

Holiday contends the trial court erred by rendering Holiday’s judgment uncollectible.

“[E]ven if all the formal elements necessary to establish alter ego liability are not present, an unnamed party may be included as a judgment debtor if ‘the equities overwhelmingly favor’ the amendment and it is necessary to prevent an injustice.” (Carolina Casualty Ins. Co. v. L.M. Ross Law Group, LLP, supra, 212 Cal.App.4th 1181, 1188-1189.)

Holiday asserts the inequitable result is that Holiday will be unable to collect its judgment. Holiday fails to explains why equity demands that Tofel be liable for American Construction’s debt when Holiday has failed to prove the necessary connection between the two entities. For example, if Tofel had prevented Holiday from obtaining the necessary evidence by obstructing the discovery process then Holiday’s failure to meet its burden might be understandable and equity might provide relief. However, that is not the situation presented by Holiday. The situation presented by Holiday is that it failed to prove its case, but nevertheless wants relief because it wants its judgment paid. Holiday’s failure to prove its case does not require the court to grant equitable relief. Accordingly, we conclude the trial court did not err.

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.