2016-00195716-CU-EN

Labor Commissioner vs. 2600 Bravado Dr., LLC

Nature of Proceeding: Motion to Strike Affidavit of Identity; Motion to Quash and Vacate

Filed By: Sabahat, Barzin Barry

Judgment Debtor Kamran Pedrampour’s (Pedrampour) motion to strike affidavit of identity and quash/vacate turnover order is GRANTED.

Judgment Creditor Judgment Enforcement Associates’ (JEA) request for judicial notice of court documents and official records is GRANTED.

Procedural Background

This civil action follows the Labor Commissioner’s Order, Decision and Award in favor of employee Cheryl Harrington (Harrington). On 4/11/16, the Commissioner awarded Harrington approximately $50,000 from her former employer, Defendant and Co-Judgment Debtor 2600 Bravado Dr. LLC, (“the LLC”) in unpaid minimum wages, penalties and other amounts. (The LLC had employed Harrington as a property manager.) Pursuant to Labor Code § 98.2(e), this administrative award was reduced to a clerk’s judgment against the LLC. JEA became the Judgment Creditor by way of assignment.

On 8/11/17, JEA filed an ex parte Affidavit of Identity and Order pursuant to CCP § 680.135. That section provides:

“Affidavit of Identity” means an affidavit or declaration executed by a judgment creditor…that is filed with the clerk of the court in which the judgment is entered at the time the judgment creditor files for a writ of execution or an abstract of judgment. The affidavit of identity shall set forth the case name and number, the name of the judgment debtor stated in the judgment, the additional name or names by which the judgment debtor is known, and the facts upon which the judgment creditor has relied in obtaining the judgment debtor’s additional name or names. The affidavit of identity shall not include the name or names of persons, including any corporations, partnerships, or any legal entities not separately named in the judgment in which the judgment debtor is a partner, shareholder, or member, other than the judgment debtor. (Emphasis added.)

JEA’s affidavit contained Harrington’s assertion that Pedrampour was the LLC’s alias. She asserted that Pedrampour was the individual who had hired her and had supervised her during her employment. She also asserted that Pedrampour had

represented himself to be the “owner” of the property she managed and is the one who countersigned her employment agreement.

JEA’s affidavit of identity also included the declaration of an attorney-investigator, Robert Schabert (Schabert). Schabert asserted that “Pedrampour…owned the [property] in his individual capacity (jointly with his wife) from March 6, 2014 to November 17, 2014, at which time he granted the property to the Debtor LLC for no consideration[.]” (Aff., Schabert Decl., ¶ 5.) In addition, Schabert asserted that the LLC did not formally come into existence until several months after Harrington began her employment. (Id., ¶ 7.) Schabert also asserted that Pedrampour had not filed the required fictitious business name records during most of Harrington’s employment. ( Id., ¶ 10.) Thus, Schabert characterized Pedrampour as the true owner and sole proprietor of the property during Harrington’s initial employment. (Id., ¶ 9.)

Based on JEA’s affidavit of identity, the court entered an order on 8/15/17 in which it found “a sufficient factual basis to add the additional name of Kamran Pedrampour, an individual as a judgment debtor.” (Emphasis omitted.) After JEA obtained a writ of execution, it moved for and obtained an order compelling Pedrampour to turn over his and his wife’s stock in two corporations. (See 8/23/18 Order.) This motion to strike the affidavit of identity and quash/vacate the turnover order followed.

Discussion

Pedrampour argues that an ex parte affidavit of identity was not a valid means to add his name to the judgment against the LLC. He argues that the ex parte proceedings authorized under CCP § 680.135 do not allow judgment creditors to add individual debtors to a judgment against a corporate entity such as the LLC. In his view, such an amendment must be made under CCP § 187, which is used to add a judgment debtor’s alter ego to the judgment:

“Code of Civil Procedure section 187 authorizes a trial court to amend a judgment to add judgment debtors.” [Citation and footnote.] The court may exercise its authority to impose liability upon an alter ego who had control of the litigation, and was therefore represented in it. [Citation.] The addition of a new party as judgment debtor stems from the concept of the alter ego doctrine, which is that an identity exists between the new party and the original party, whose participation in the trial leading to the judgment represented the newly added party. [Citation.] Therefore amending a judgment to add an alter ego does not add a new defendant but instead inserts the correct name of the real defendant. [Citation.] In order to see that justice is done, great liberality is encouraged in the allowance of amendments brought pursuant to Code of Civil Procedure section 187.

(Misik v. D’Arco (2011) 197 Cal.App.4th 1065, 1072-1073.) Unlike § 680.135, however, § 187 requires a noticed motion. (See Wells Fargo Bank, N.A. v. Weinberg (2014) 227 Cal.App.4th 1, 9.)

Pedrampour’s motion is meritorious. He should have been afforded an opportunity to oppose JEA’s evidence in the affidavit of identity. Instead, the court amended the judgment without input from Pedrampour. It thus appears Pedrampour was denied due process. The Order on Affidavit of Identity, the turnover order of 8/23/18 and the

amended judgment naming Pedrampour must be vacated. Efforts to enforce the judgment against Pedrampour must cease.

In granting the motion, the court rejects JEA’s argument that Pedrampour’s motion is untimely. A void judgment may be vacated at any time, and the judgment against Pedrampour is void on its face. (Cf. Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1231, 1237 [amended judgment entered without notice was void].) The court added Pedrampour to the judgment without prior notice to him, and it did so even though Pedrampour is not the same legal person as the LLC, as required to amend a judgment based on an affidavit of identity.

To the extent JEA contends Pedrampour used the LLC for his own purposes, it argues for alter ego liability under CCP § 187. The same may be said of JEA’s argument that Pedrampour participated in the underlying proceeding before the Labor Commissioner. The merits of such an alter ego argument are not currently before the court.

The court notes JEA’s argument that the Labor Commissioner initially attempted to proceed against Pedrampour, but Pedrampoour induced the Commissioner to proceed against the LLC instead. Whatever might flow from this contention, it does not render Pedrampour an alias of the LLC who may be added to the judgment as such.

Disposition

The motion is granted. The 8/15/17 Order on Affidavit of Identity, the judgment against Pedrampour and the 8/23/18 turnover order are VACATED.

All efforts to enforce the judgment against Pedrampour personally must CEASE immediately.

The notice of motion does not provide notice of the court’s tentative ruling system, as required by Local Rule 1.06(D). Counsel for moving party is directed to contact counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the court’s tentative ruling procedure. If counsel for moving party is unable to contact counsel for opposing party prior to hearing, counsel for moving party shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06(B).

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 is required.