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1 JOHN W. HOWARD (SBN 80200)
MICHELLE D. VOLK (SBN 217151)
2 JW Howard/Attorneys, Ltd.
701 B. Street, Ste. 1725
3 San Diego, California 92101
Tel: (619) 234-2842 Fax: (619) 234-1716
4 Email: johnh@jwhowardattorneys.com 10/29/2020
michelle@jwhowardattorneys.com
5
Attorneys for Plaintiff, KC Funding, LLC
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN MATEO
10
11 KC FUNDING, LLC, dba Case No. 17-CLJ-00637
KIDS CONNECTION
12 MEMORANDUM OF POINTS AND
Plaintiffs, AUTHORITIES IN SUPPORT OF
13 PLAINTIFF'S NOTICE OF MOTION AND
v. MOTION TO AMEND JUDGMENT
14 2021
BITA IMANI, et al. Date: January 6, 2020
15 Time: 1:30 p.m.
Defendants. Dept: LM
16
17 Complaint Filed: Feb. 14,2017
18
19
20 INTRODUCTION
21 Defendant was sued as Bita Imani because the contract sued upon is between her and
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Plaintiff Kids Connection. (Declaration of Michelle D. Volk filed in support hereof at ~ 3.)
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Thereafter, Ms. Imani answered the complaint and filed a second (amended) answer under the
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name Bita Imani. (Volk Declar at ~ 4 .) After Plaintiff prevailed on a motion for sununary
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adjudication on the contract claim, Judgment was entered against Defendant Bita Imani on
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27 August 27, 2020. (Volk Declar at~ 3.)
28 At some point during the litigation, Ms. Imani began using the name "Bita Safari" in her
I pleadings and discovery responses. (Volk Declar at 'lf5.) In December 2019, Ms. Imani testified
2 at deposition that she got married in 2015 and changed her last name to "Safari." (Yolk Declar at
3
'1!6 and Exhibit "A" thereto.) As such, Bita Imani and Bita Safari and are the same person. As
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such, there is no dispute that Bita Safari is the alias ofBita Imani.
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Justice requires that the judgment be amended to add Bita Safari as a judgment debtor.
6
7 Plaintiff's judgment enforcement efforts will be frustrated if Defendant's assets are in the name of
8 Bita Safari and not Bita Imani. Because these persons are one in the same, the Judgment should
9 be amended to reflect both persons as judgment debtors.
10
C.C.P. SECTION 187, THE TRIAL COURT IS AUTHORIZED TO AMEND A
II JUDGMENT TO ADD ADDITIONAL JUDGMENT DEBTORS.
12 Code ofCivil Procedure Section 187 grants every court the power and authority to carry
13 its jurisdiction into effect. Section 187 provides:
14
When jurisdiction is, by the Constitution or this Code, or by any other
15 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
16 the course of proceeding be not specifically pointed out by this Code or the
statute, any suitable process or mode of proceeding may be adopted which
17 may appear most conformable to the spirit of this Code.
18
As a general rule, 'a Court may amend its judgment at any time so that the judgment will
19
properly designate the real defendants.' Greenspan v. LADT, LLC (2010) 191 Cai.App.4th 486,
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508; CCP Section 187. Judgments may be amended to add additional judgment debtors on the
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22 ground that a person or entity is the alter ego of the original judgment debtor. !d. Amending a
23 judgment to add an alter ego of an original judgment debtor is an equitable procedure based on
24 the theory that the court is not amending the judgment to add a new defendant, but is merely
25
inserting the correct name of the real defendant. Highland Springs Conference and Training
26
Center v. City ofBanning (2016) 199 Cal.App.41h 267,280 citing McClellan v. Northridge Park
27
28 -2-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF'S MOTION TO AMEND JUDGMENT
I Townhome Owners Assn. (2001) 89 Cal.App. 4th 746, 752.
2 California case Jaw also provides that Courts may use Section 187 to allow amendments
3
of judgments where the name to be added is the alias of the judgment debtor. A recent
4
bankruptcy decision "looked to the 'equitable principles regarding alter ego' and concluded that
5
although the added judgment-debtor did not meet the formal requirements for alter ego liability, it
6
7 nevertheless fit within the theory underlying amendment of a judgment based on alter ego
8 liability. That is, 'the court is not amending the judgment to add a new defendant but is merely
9 inserting the correct name of the real defendant.' [Citation.]" (Tokyo Marine & Fire Insurance
10
Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App. 4th II 0, 116-117 quoting In re
11
Levander (9th Cir.l999) 180 F.3d 1114, 1122 [bankrupt corporation defrauded court by
12
transferring all assets to partnership and concealing transfer; partnership added to judgment]. See
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also Carr v. Barnabey's Hotel Corp. (1994) 23 Cal.App.4th 14, 21 [right party sued under wrong
14
15 name, post-trial amendment to include correct name in judgment approved even though all alter
16 ego elements not established].) Under such circumstances these courts have "reasoned that ... not
17 allowing amendment due to the absence of a finding of alter ego would 'work an injustice.'
18
[Citation.]" (Tokyo Marine, supra at 117 quoting In re Levander, supra, 180 F.3d at p. 1122 and
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Carr, supra, 23 Cal.App.4th at p. 23.)
20
The decision to grant an amendment to a judgment to add a judgment debtor lies in the
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22 sound discretion of the trial court. Greenspan, supra at 508. "The greatest liberality is to be
23 encouraged in the allowance of such amendments in order to see that justice is done."
24 Greenspan, supra at 508 quoting Carr v. Barnabey's Hotel Corp. (1994) 23 Cal. App. 4th 14, 20,
25 28.
26
In the instant case, the Judgment is against Bita Imani as she was named in the complaint
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28 -3-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF'S MOTION TO AMEND JUDGMENT
I as such and she thereafter answered using that name. (Volk Declar at ~ 5.) Bita Safari is not the
2 alter ego of Bita Imani, as the two are one in the same person, as Defendant has used both names
3
during this litigation and admitted at deposition that both names belong to her. (Volk Declar at~
4
5-6.) Ms. Imani testified at deposition that she got married in 2015 and changed her last name
5
from Imani to "Safari." (Volk Declar at~ 6 and Exhibit "A" thereto.) As such, Bita Safari is an
6
7 alias ofBita Imani. Amending the Judgment under these circumstances is necessary to include
8 Defendant's correct names used by her.
9 Justice requires that judgment debtor Bita Safari be added to the Judgment. Defendant has
10
used both names and they are one in the same person. Amending the Judgment will promote
II
justice by allowing Plaintiff to collect on the judgment should Defendant's assets be held under
12
the name Bita Safari. Conversely, Plaintiff's collection efforts will be thwarted if Defendant's
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assets are held in the name of Bita Safari instead of Bita Imani. Accordingly, the judgment
14
15 should list both names as judgment debtors.
16 CONCLUSION
17 Plaintiff respectfully requests that the Court amend the judgment to include Bita Safari as
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an additional judgment Debtor, as this person is the same as Bita Imani.
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20
JW Howard/Attorneys, Ltd.
21
~/
22 If·
Date: Oct. 29, 2020
23 Mich lie D. Volk
Attorney for Plaintiff
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25
26
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28 -4-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF'S MOTION TO AMEND JUDGMENT
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1 JOHN W. HOWARD (SBN 80200) MICHELLE D. VOLK (SBN 217151) 2 JW Howard/Attorneys, Ltd. 701 B. Street, Ste. 1725 3 San Diego, California 92101 Tel: (619) 234-2842 Fax: (619) 234-1716 4 Email: johnh@jwhowardattorneys.com 10/29/2020 michelle@jwhowardattorneys.com 5 Attorneys for Plaintiff, KC Funding, LLC 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN MATEO 10 11 KC FUNDING, LLC, dba Case No. 17-CLJ-00637 KIDS CONNECTION 12 MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF 13 PLAINTIFF'S NOTICE OF MOTION AND v. MOTION TO AMEND JUDGMENT 14 2021 BITA IMANI, et al. Date: January 6, 2020 15 Time: 1:30 p.m. Defendants. Dept: LM 16 17 Complaint Filed: Feb. 14,2017 18 19 20 INTRODUCTION 21 Defendant was sued as Bita Imani because the contract sued upon is between her and 22 Plaintiff Kids Connection. (Declaration of Michelle D. Volk filed in support hereof at ~ 3.) 23 Thereafter, Ms. Imani answered the complaint and filed a second (amended) answer under the 24 name Bita Imani. (Volk Declar at ~ 4 .) After Plaintiff prevailed on a motion for sununary 25 adjudication on the contract claim, Judgment was entered against Defendant Bita Imani on 26 27 August 27, 2020. (Volk Declar at~ 3.) 28 At some point during the litigation, Ms. Imani began using the name "Bita Safari" in her I pleadings and discovery responses. (Volk Declar at 'lf5.) In December 2019, Ms. Imani testified 2 at deposition that she got married in 2015 and changed her last name to "Safari." (Yolk Declar at 3 '1!6 and Exhibit "A" thereto.) As such, Bita Imani and Bita Safari and are the same person. As 4 such, there is no dispute that Bita Safari is the alias ofBita Imani. 5 Justice requires that the judgment be amended to add Bita Safari as a judgment debtor. 6 7 Plaintiff's judgment enforcement efforts will be frustrated if Defendant's assets are in the name of 8 Bita Safari and not Bita Imani. Because these persons are one in the same, the Judgment should 9 be amended to reflect both persons as judgment debtors. 10 C.C.P. SECTION 187, THE TRIAL COURT IS AUTHORIZED TO AMEND A II JUDGMENT TO ADD ADDITIONAL JUDGMENT DEBTORS. 12 Code ofCivil Procedure Section 187 grants every court the power and authority to carry 13 its jurisdiction into effect. Section 187 provides: 14 When jurisdiction is, by the Constitution or this Code, or by any other 15 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 16 the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which 17 may appear most conformable to the spirit of this Code. 18 As a general rule, 'a Court may amend its judgment at any time so that the judgment will 19 properly designate the real defendants.' Greenspan v. LADT, LLC (2010) 191 Cai.App.4th 486, 20 508; CCP Section 187. Judgments may be amended to add additional judgment debtors on the 21 22 ground that a person or entity is the alter ego of the original judgment debtor. !d. Amending a 23 judgment to add an alter ego of an original judgment debtor is an equitable procedure based on 24 the theory that the court is not amending the judgment to add a new defendant, but is merely 25 inserting the correct name of the real defendant. Highland Springs Conference and Training 26 Center v. City ofBanning (2016) 199 Cal.App.41h 267,280 citing McClellan v. Northridge Park 27 28 -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO AMEND JUDGMENT I Townhome Owners Assn. (2001) 89 Cal.App. 4th 746, 752. 2 California case Jaw also provides that Courts may use Section 187 to allow amendments 3 of judgments where the name to be added is the alias of the judgment debtor. A recent 4 bankruptcy decision "looked to the 'equitable principles regarding alter ego' and concluded that 5 although the added judgment-debtor did not meet the formal requirements for alter ego liability, it 6 7 nevertheless fit within the theory underlying amendment of a judgment based on alter ego 8 liability. That is, 'the court is not amending the judgment to add a new defendant but is merely 9 inserting the correct name of the real defendant.' [Citation.]" (Tokyo Marine & Fire Insurance 10 Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App. 4th II 0, 116-117 quoting In re 11 Levander (9th Cir.l999) 180 F.3d 1114, 1122 [bankrupt corporation defrauded court by 12 transferring all assets to partnership and concealing transfer; partnership added to judgment]. See 13 also Carr v. Barnabey's Hotel Corp. (1994) 23 Cal.App.4th 14, 21 [right party sued under wrong 14 15 name, post-trial amendment to include correct name in judgment approved even though all alter 16 ego elements not established].) Under such circumstances these courts have "reasoned that ... not 17 allowing amendment due to the absence of a finding of alter ego would 'work an injustice.' 18 [Citation.]" (Tokyo Marine, supra at 117 quoting In re Levander, supra, 180 F.3d at p. 1122 and 19 Carr, supra, 23 Cal.App.4th at p. 23.) 20 The decision to grant an amendment to a judgment to add a judgment debtor lies in the 21 22 sound discretion of the trial court. Greenspan, supra at 508. "The greatest liberality is to be 23 encouraged in the allowance of such amendments in order to see that justice is done." 24 Greenspan, supra at 508 quoting Carr v. Barnabey's Hotel Corp. (1994) 23 Cal. App. 4th 14, 20, 25 28. 26 In the instant case, the Judgment is against Bita Imani as she was named in the complaint 27 28 -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO AMEND JUDGMENT I as such and she thereafter answered using that name. (Volk Declar at ~ 5.) Bita Safari is not the 2 alter ego of Bita Imani, as the two are one in the same person, as Defendant has used both names 3 during this litigation and admitted at deposition that both names belong to her. (Volk Declar at~ 4 5-6.) Ms. Imani testified at deposition that she got married in 2015 and changed her last name 5 from Imani to "Safari." (Volk Declar at~ 6 and Exhibit "A" thereto.) As such, Bita Safari is an 6 7 alias ofBita Imani. Amending the Judgment under these circumstances is necessary to include 8 Defendant's correct names used by her. 9 Justice requires that judgment debtor Bita Safari be added to the Judgment. Defendant has 10 used both names and they are one in the same person. Amending the Judgment will promote II justice by allowing Plaintiff to collect on the judgment should Defendant's assets be held under 12 the name Bita Safari. Conversely, Plaintiff's collection efforts will be thwarted if Defendant's 13 assets are held in the name of Bita Safari instead of Bita Imani. Accordingly, the judgment 14 15 should list both names as judgment debtors. 16 CONCLUSION 17 Plaintiff respectfully requests that the Court amend the judgment to include Bita Safari as 18 an additional judgment Debtor, as this person is the same as Bita Imani. 19 20 JW Howard/Attorneys, Ltd. 21 ~/ 22 If· Date: Oct. 29, 2020 23 Mich lie D. Volk Attorney for Plaintiff 24 25 26 27 28 -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO AMEND JUDGMENT