Cohen v. S.H.E. Engineering & Construction Group CA2/4 ( 2022 )

Filed 8/4/22 Cohen v. S.H.E. Engineering & Construction Group CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
ZION COHEN, B312954
Cross-complainant and (Los Angeles County
Appellant, Super. Ct. No. LC102030)
v.
S.H.E. ENGINEERING &
CONSTRUCTION GROUP, INC. et
al.
Cross-defendants;
DAVID SHEETRIT
Cross-defendant, Respondent,
and Real Party in Interest.
APPEAL from an order of the Superior Court of Los
Angeles County, Huey P. Cotton, Judge. Affirmed.
Law Office of Ami Meyers and Ami Meyers for Cross-
complainant and Appellant.
Leichter Leichter-Maroko and Ariel Leichter-Maroko
for Cross-defendant, Respondent, and Real Party in Interest.
__________________________________________
INTRODUCTION
In 2017, appellant Zion Cohen obtained a judgment
against S.H.E. Engineering & Construction, Inc. (SHE). In
the proceedings below, Cohen attempted to amend the
judgment to add respondent David Sheetrit -- one of SHE’s
principals -- as SHE’s alter ego. The court denied the
motion.
On appeal, Cohen contends the court: (a) decided the
motion based on a misunderstanding of the law; (b) made
findings unsupported by substantial evidence; (c) failed to
consider Cohen’s allegation that Sheetrit breached a
fiduciary duty owed to him; and (d) improperly considered
Sheetrit’s filings because they were made by an attorney
who had not filed a substitution of counsel. We find nothing
in the record demonstrating the court misunderstood the
law. Because the court found that Cohen failed to meet his
burden of proof, we consider not whether substantial
evidence supported the court’s findings, but whether Cohen’s
evidence compelled the court to make a different finding; we
conclude it did not. We discern no error in the court’s
decision not to address Cohen’s fiduciary duty argument,
2
because Cohen presented no authority permitting a court to
amend a judgment to add a judgment debtor as an alter ego
due to an alleged breach of fiduciary duty. Finally, we
conclude the court did not err in considering Sheetrit’s
filings, even though they were made by an attorney who had
not filed a substitution of counsel. We therefore affirm.
STATEMENT OF RELEVANT FACTS
A. Cohen Obtains a Judgment
In November 2014, Cohen filed a cross-complaint
against SHE, Sheetrit, Sheetrit’s wife Ilana, and The
Hanover Insurance Company (Hanover). The gist of his
cross-complaint was that Cohen had performed work for
SHE as a subcontractor but had not been paid in full and
was still owed $100,000. Cohen additionally alleged that
SHE had obtained a performance bond from Hanover, from
which he was entitled to be paid the amount owed. In
September 2017, Cohen obtained a judgment against SHE
and Hanover Insurance Company in the amount of $78,900.1
1 The court awarded Cohen the $100,000 he demanded, but
noted that “SHE and Hanover are entitled to an offset of
$21,100.00 (including Equipment Claims of $4,500.00, Trench
Shoring Rental Claims of $8,000 and Lost/Damaged Equipment
Claims of $8,600.00).”
3
B. Cohen Gathers Evidence
1. Debtor’s Examinations
In December 2019 and again in February 2020,
Sheetrit appeared on behalf of SHE for debtor’s
examinations noticed by Cohen. Sheetrit testified that SHE
had been inactive for over five years, and that its profit and
loss statements showed no profit for 2017 or 2018. SHE had
no assets or projects and expected no payments. Sheetrit
claimed he did not remember if SHE ever had any assets,
and that a list of SHE’s assets and liabilities did not exist.2
Sheetrit attested that SHE held corporate meetings
approximately once a year, and that records of these
meetings were kept in SHE’s office. Sheetrit testified that
“at its height,” SHE had more than one employee, but he did
not remember how many. He likewise stated that SHE had
fewer than five shareholders (of which he was one), but he
did not know if there were more than two. Sheetrit denied
ever using SHE’s bank accounts for personal expenses and
claimed that he personally paid for all of SHE’s attorneys’
fees in the underlying case.
2 While the question regarding the list of SHE’s assets and
liabilities did not specify a time period, immediately before the
question, Sheetrit was asked if he had SHE’s profit and loss
records “for the years 2017 and 2018,” and if he had SHE’s bank
account statements “from the year 2017 and onward.”
Additionally, immediately after Sheetrit’s testimony about the
list of SHE’s assets and liabilities, Sheetrit was asked whether
SHE had bank accounts “for the year 2017 and onward.”
4
2. Document Subpoenas
In September 2019, Cohen subpoenaed Richard Kissen
for SHE’s profit and loss statements from 2017 and 2018,
SHE’s bank account statements beginning in 2017, and a list
of SHE’s assets and liabilities. Kissen produced SHE’s 2017
and 2018 profit and loss statements, which showed SHE
paid $5,835 to Etamar Sheetrit in 2017 as “commission.”
In June 2020, Cohen subpoenaed JP Morgan Chase
Bank for SHE’s bank statements and checks beginning in
September 2016. The documents produced by the bank
included bank statements in SHE’s name, checks with SHE’s
name and address in the upper left-hand corner, and slips of
paper that appeared similar to these checks and contained
the same account number, but which bore Sheetrit’s name
and address in place of SHE’s in the upper left-hand corner
and contained the notation “Authorized by your Depositor.”
Four checks were made out to Etamar in 2017 and totaled
$11,625.
C. Cohen Moves to Amend the Judgment
In August 2020, Cohen moved to amend the judgment
to include Sheetrit as a judgment debtor, contending
Sheetrit was SHE’s alter ego. Cohen argued that Sheetrit
treated SHE’s assets as his own;3 that SHE was
3 Cohen cited the slips of paper that appeared to be checks
with Sheetrit’s name and address but SHE’s account number,
and the fact that Sheetrit claimed he had personally paid all the
fees for his and SHE’s attorney in the underlying litigation, when
(Fn. is continued on the next page.)
5
inadequately capitalized and had no corporate assets;4 that
SHE failed to maintain meeting minutes or adequate
corporate records;5 that Sheetrit and his family owned SHE;6
and that Sheetrit and SHE used the same attorney.7 Cohen
additionally alleged that while SHE had ceased doing
business after the judgment in the underlying case, Sheetrit
had incorporated David and Sons Remodeling, Inc. a few
months before the judgment, and both companies had the
same address.
In his opposition, Sheetrit claimed that the “checks”
Cohen had identified bearing his name were actually “slips
produced by the bank every time a credit card payment [wa]s
made to a merchant through a phone call,” that were
generated as proof of payments he authorized to be paid with
SHE’s card. He also explained that Etamar Sheetrit was a
the records demonstrated that SHE, too, had paid the attorney.
Cohen also alleged Sheetrit had understated to his accountant
the amount SHE had paid members of his family.
4 Cohen cited Sheetrit’s testimony that SHE had no assets
and that he did not remember if it ever had assets.
5 Cohen cited Sheetrit’s testimony that no records of SHE’s
assets and liabilities existed and his inability to remember
whether SHE employed more than three people.
6 Cohen cited the fact that Sheetrit was SHE’s president,
CEO, CFO, director, and agent for service of process while also
one of SHE’s shareholders.
7 Cohen cited the fact that the attorney who represented
Sheetrit in the appeal of the underlying case had also
represented SHE in a companion case.
6
subcontractor, and the payments beyond the $5,835 listed as
commission were reimbursements to Etamar for materials
provided to SHE in 2017. Sheetrit additionally claimed that
SHE had held regular corporate meetings and kept minutes
of those meetings, that he had never used SHE’s funds for
personal expenses, and that SHE had had other employees
besides Sheetrit. Sheetrit’s opposition was not supported by
a declaration from him, and was filed by the Kruger Law
Firm, which did not file a substitution of counsel.8 In
Cohen’s reply, he contended the court should disregard
Sheetrit’s opposition due to “Kruger’s failure to properly
substitute in as attorney of record . . . .”
Before the hearing on the motion in September 2020,
the court issued a tentative ruling granting it. After the
parties argued, however, the court continued the matter to
permit supplemental briefing. In a supplemental opposition,
Sheetrit submitted a declaration and clarified that the
payment slips generated by the bank were receipts for
telephonic payments he authorized to be made from the
corporate bank account. Sheetrit also provided more details
regarding the payment to Etamar, and the nature of
Etamar’s professional relationship with SHE. Sheetrit
additionally explained that after the judgment against SHE
was entered in the underlying case, SHE lost its bond with
Hanover and could not obtain another one, stymying any
chance of obtaining future government contracts. Sheetrit
8 At trial, Sheetrit had been represented by other counsel.
7
declared that before that, “SHE was not undercapitalized as
SHE was bonded by The Hanover Insurance Group, and had
government contracts for SHE’s services.”9 He also averred
that SHE and David and Sons Remodeling, Inc. were distinct
companies providing different services -- SHE was a
construction company primarily engaged in obtaining
government contracts for public works, while David and
Sons Remodeling constructed, designed, and remodeled
homes in Sacramento. Sheetrit reiterated that SHE had
held regular corporate meetings, whose minutes were kept
in SHE’s office. In Cohen’s supplemental reply, he raised a
new argument that Sheetrit was liable to Cohen because
SHE’s bank statements showed SHE had received over
$155,000 in March and April 2018, but Sheetrit had failed to
direct SHE to pay its judgment creditors with that money,
constituting a breach of SHE’s fiduciary duty to Cohen
“through Sheetrit.”
After the court heard further argument in February
2021, it took the matter under submission and subsequently
denied the motion. While the court found the transcript of
Sheetrit’s debtor’s examinations left it “with the impression
that Mr. Sheetrit was being deliberately evasive,” the court
found that “nothing in the transcript alone shows an alter
ego relationship.” As to Cohen’s other evidence, the court
found that the checks and payment slips from SHE’s bank
9 Cohen filed a written objection that this testimony was a
legal conclusion that lacked foundation, but the court did not rule
on the objection.
8
did not meet Cohen’s burden to show comingling, and that
Sheetrit had adequately explained the payments to Etamar,
as well as the differences between SHE and David and Sons
Remodeling, Inc. The court also found that “at most,” Cohen
“suggests undercapitalization but cannot prove
undercapitalization throughout [his] dealings with SHE.
While SHE is admittedly insolvent currently, that is not
conclusive evidence that SHE was always undercapitalized.”
The court additionally noted Cohen’s failure to “address the
significance of SHE’s bond . . . .” Finally, the court found
Cohen had failed to prove SHE did not follow corporate
formalities in light of Sheetrit’s testimony that it had held
corporate meetings at least yearly and his declaration that
SHE observed corporate formalities. Recognizing that “[t]he
ordinary ‘preponderance of the evidence’ standard applies in
determining whether to grant a post-trial motion to add an
alleged alter ego as a judgment debtor,” the court concluded
that Cohen “has not provided a preponderance of evidence
that Sheetrit was the alter ego of judgment debtor SHE.”
Cohen timely appealed.
DISCUSSION
A. Governing Law and Standard of Review
Code of Civil Procedure section 187 “grants every court
the power and authority to carry its jurisdiction into effect.
[Citation.] This includes the authority to amend a judgment
to add an alter ego of an original judgment debtor, and
9
thereby make the additional judgment debtor liable on the
judgment.” (Highland Springs Conference & Training
Center v. City of Banning (2016) 244 Cal.App.4th 267, 280,
fn. omitted (Highland Springs).)
The parties agree that Cohen could not add Sheetrit to
the judgment as SHE’s alter ego unless Cohen
demonstrated: “‘(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.’” (Highland Springs,
supra, 244 Cal.App.4th at 280.)10 “It is the plaintiff’s burden
to overcome the presumption of the separate existence of the
corporate entity.” (Mid-Century Ins. Co. v. Gardner (1992) 9
Cal.App.4th 1205, 1212.)
The court found that Cohen had failed to meet his
burden to demonstrate by a preponderance of the evidence
that Sheetrit was an alter ego of SHE. Citing Highland
Springs, Cohen contends we should review the court’s
findings of fact for substantial evidence. (Highland Springs,
supra, 244 Cal.App.4th at 280.) Sheetrit counters that
Cohen had the burden of proof and “‘where the issue on
appeal turns on a failure of proof at trial, the question for a
10 The first factor is not in dispute; Sheetrit was a
cross-defendant in the cross-complaint brought by Cohen, and
both Sheetrit and SHE were represented by the same attorney.
10
reviewing court becomes whether the evidence compels a
finding in favor of the appellant as a matter of law.
[Citations.] Specifically, the question becomes whether the
appellant’s evidence was (1) “uncontradicted and
unimpeached” and (2) “of such a character and weight as to
leave no room for a judicial determination that it was
insufficient to support a finding.”’” (Sonic Manufacturing
Technologies, Inc. v. AAE Systems, Inc. (2011) 196
Cal.App.4th 456, 466.) In his reply brief, Cohen fails to
respond to Sheetrit’s contention. We agree the standard
articulated in Sonic Manufacturing Technologies applies.
B. The Court Did Not Err in Finding Cohen
Failed to Meet His Burden of Proof
1. The Court Did Not Misunderstand the
Law
We review a trial court’s understanding of the law de
novo. (See, e.g., In re Marriage of Mullonkal &
Kodiyamplakkil (2020) 51 Cal.App.5th 604, 613 [“in
determining whether the trial court has abused its
discretion, we first determine de novo whether the trial court
applied the correct legal standard when exercising
discretion”]; Golden Gate Land Holdings LLC v. East Bay
Regional Park Dist. (2013) 215 Cal.App.4th 353, 371 [“We
review the trial court’s interpretation of [a statute] de
novo”].) On appeal, Cohen accuses the trial court of
misunderstanding the law in two ways.
11
First, Cohen takes the court to task for stating that
“‘nothing in the [judgment debtor’s exam] transcript alone
shows an alter ego relationship.’” He complains the trial
court failed to “provide any legal authority for the
proposition that the transcript ‘alone’ must show that
relationship.” To the extent Cohen contends the trial court
erred by concluding he must prove alter ego using only the
debtor’s examination transcripts, the premise of his
argument is flawed. As evidenced by the fact that the court
analyzed the other evidence Cohen provided, its statement
was merely a comment that Sheetrit’s inability to remember
basic facts about SHE, as well as his evasiveness in
answering questions, insufficiently demonstrated a unity of
interest.
Second, Cohen takes issue with the court’s statements
that “at most,” he “suggests undercapitalization but cannot
prove undercapitalization throughout [his] dealings with
SHE. While SHE is admittedly insolvent currently, that is
not conclusive evidence that SHE was always
undercapitalized.” Cohen contends the court erred in finding
he was required to produce “‘conclusive evidence’” or show
undercapitalization “‘throughout’” his dealings with SHE.
We agree that Cohen did not need to produce “conclusive
evidence” -- the standard is preponderance of the evidence.
(Highland Springs, supra, 244 Cal.App.4th at 280.) But
given that the court twice recognized the correct standard in
its minute order, we interpret its statement regarding
“conclusive evidence” as articulating merely that the court
12
was unprepared to conclude SHE was undercapitalized
based on its current insolvency.
Additionally, the court was required to determine
whether SHE was “so undercapitalized that it [wa]s likely to
have no sufficient assets to meet its debts.” (Butler America,
LLC v. Aviation Assurance Co., LLC (2020) 55 Cal.App.5th
136, 146.) Thus, we interpret the court’s statement that
there was no evidence SHE was undercapitalized
“throughout” its dealings with Cohen as a statement that he
had failed to meet his burden to demonstrate SHE had
insufficient assets to meet its debts to Cohen when their
relationship began.
2. Cohen’s Evidence Did Not Compel a
Finding That Sheetrit and SHE Had a
Sufficient Unity of Interest
“The first requirement for disregarding the corporate
entity under the alter ego doctrine—whether there is
sufficient unity of interest and ownership that the separate
personalities of the individual and the corporation no longer
exist—encompasses a series of factors. Among the many
factors to be considered in applying the doctrine are one
individual’s ownership of all stock in a corporation; use of
the same office or business location; commingling of funds
and other assets of the individual and the corporation; an
individual holding out that he is personally liable for debts of
the corporation; identical directors and officers; failure to
maintain minutes or adequate corporate records; disregard
13
of corporate formalities; absence of corporate assets and
inadequate capitalization; and the use of a corporation as a
mere shell, instrumentality or conduit for the business of an
individual. . . . ‘“No single factor is determinative, and
instead a court must examine all the circumstances to
determine whether to apply the doctrine.”’” (Misik v. D’Arco
(2011) 197 Cal.App.4th 1065, 1073.) Below, we review the
evidence Cohen provided to the court and conclude it is
neither “‘“uncontradicted and unimpeached”’” nor “‘“of such a
character and weight as to leave no room for a judicial
determination that it was insufficient to support”’” the
court’s finding that he failed to meet his burden to
demonstrate a unity of interest. (Sonic Manufacturing
Technologies, Inc., supra, 196 Cal.App.4th at 466.)
(a) Treating Corporate Assets as His
Own
Cohen’s evidence that Sheetrit treated SHE’s assets as
his own consisted of: (1) the “‘payment slips’” containing
Sheetrit’s name and address along with SHE’s bank account
number; (2) SHE’s payment to its and Sheetrit’s joint
attorney in the underlying lawsuit; and (3) Sheetrit’s alleged
understatement to his accountant regarding the amount
SHE paid members of his family. On appeal, he also argues
that Sheetrit allegedly “drained” SHE of the more than
$155,000 it received after the judgment was entered.
However, Sheetrit explained that the payment slips
were not checks that he wrote on SHE’s account, but instead
14
were records generated by the bank to document that he had
authorized a payment to be made from SHE’s account. The
court appears to have accepted this explanation, and nothing
in the record compels a contrary conclusion.
As for the fact that both SHE and Sheetrit paid the
same lawyer in the underlying litigation, both SHE and
Sheetrit were cross-defendants in the underlying litigation.
We see nothing remarkable about the fact that both issued
payments to their attorney.
Regarding the accusation that Sheetrit understated the
amount paid to family members, we presume Cohen refers to
the fact that SHE’s 2017 profit and loss statement showed a
payment of $5,835 to Etamar Sheetrit for “commission”
when bank records showed SHE had paid Etamar $11,625 in
2017. Sheetrit explained, however, that SHE paid $5,835 to
Etamar as commission, and the balance as reimbursement
for materials Etamar purchased for SHE as a subcontractor.
Again, the court appears to have accepted this explanation,
and nothing in the record compels a different conclusion.
Finally, as for Cohen’s contention that “the lower court
failed to mention records from SHE’s bank showing that
after the judgment, Sheetrit had drained SHE of $155,000,”
the bank statements in the record demonstrate that in
March and April 2018, a total of approximately $156,000
was both deposited into and debited from SHE’s bank
account. However, Cohen cites nothing to support his
conclusion that these debits were caused by Sheetrit
“drain[ing]” the account. We therefore find that Cohen’s
15
evidence did not compel a finding that Sheetrit treated
SHE’s assets as his own.
(b) Undercapitalization
Cohen argues SHE was undercapitalized because it
had no assets and “perhaps never had any assets.” That
SHE had no assets at the time of Sheetrit’s testimony did
not speak to undercapitalization -- Sheetrit testified SHE
had been inactive for over five years, so it is unsurprising
that it lacked assets. The only evidence Cohen presented
that SHE never had assets was Sheetrit’s testimony that he
did not remember if SHE ever had assets. While the
veracity of such testimony is certainly questionable (SHE
paid its lawyer in the underlying litigation using a check
drawn on its bank account), we do not find it sufficient to
compel a conclusion that SHE had no assets during its
relationship with Cohen.
Cohen also objects to the court’s consideration of SHE’s
bond. Sheetrit submitted a declaration stating that “SHE
was not undercapitalized as SHE was bonded by The
Hanover Insurance Group, and had government contracts for
SHE’s services.” Cohen objected to this testimony as a legal
conclusion that lacked foundation, arguing it was for the
court to decide whether SHE was adequately capitalized.
While the court did not rule on these objections which Cohen
reasserts on appeal, we find them largely without merit. We
agree that the court, not Sheetrit, was to decide whether
SHE was adequately capitalized, but we find Sheetrit had
16
ample foundation (as SHE’s president) to state that SHE
had a bond issued by Hanover, along with government
contracts for SHE’s services. Cohen now argues that the
court erred in considering the bond without knowing its
amount, but Cohen himself alleged in his cross-complaint
that, because of the bond Hanover issued to SHE, Cohen was
entitled to demand that Hanover pay him the entire amount
owed; indeed, Cohen was awarded a judgment against
Hanover for that amount (less an offset for claims made
against Cohen). It was therefore reasonable for the court to
infer that SHE’s bond sufficiently capitalized SHE for its
dealings with Cohen.
(c) Failure to Maintain Records
Cohen argues that SHE failed to maintain adequate
records because “Sheetrit supposedly could not remember
whether SHE employed more than three people, and further
testified that no records of SHE’s assets and liabilities exist.”
As to the employees, Sheetrit’s actual testimony was that, at
its height, SHE had more than one employee, but he did not
remember how many. Even if Sheetrit’s memory was
deliberately faulty, we see no connection between his
forgetfulness or evasiveness and the conclusion that SHE did
not maintain corporate records. As for a record of SHE’s
assets and liabilities, while Sheetrit did testify there was no
such record, in the context of the examination in which
Sheetrit was being asked about documents from 2017
onward, Sheetrit’s answer could reasonably be interpreted as
17
stating that there was no record of SHE’s assets and
liabilities after 2017 because the company was no longer
doing any business. Furthermore, Sheetrit testified that the
company had held yearly meetings, and that minutes of
those meetings were stored in SHE’s office.
(d) Owning and Controlling SHE
Cohen argues that because Sheetrit occupied several
positions in SHE (shareholder, president, CEO, CFO,
director, and agent for service of process), “SHE does not
exist as an entity apart from” Sheetrit. While Sheetrit’s
multiple roles in SHE are a factor in favor of finding alter
ego, Cohen provides no authority that such a factor is
determinative.
(e) Using the Same Attorney
Cohen argues that “Sheetrit’s use of the same attorney
. . . as SHE warrants piercing the veil as to Sheetrit because
it shows that Sheetrit (and his attorney) held that no
conflicts existed between Sheetrit and SHE.” But Cohen
presents no authority that an alignment of an individual and
his company’s interests in litigation compels a finding that
they are alter egos.11
11 Cohen cites Associated Vendors, Inc. v. Oakland Meat Co.
(1962) 210 Cal.App.2d 825, which lists “the employment of the
same employees and/or attorney” as a factor to consider in the
alter ego analysis. (Id. at 839.) Nowhere does Associated
Vendors (or any other case) hold this factor is dispositive.
18
(f) David and Sons Remodeling, Inc.
Cohen argues it is significant that David and Sons
Remodeling operates from the same principal address as
SHE. But Sheetrit explained that David and Sons
Remodeling and SHE conducted different lines of business,
and Cohen presented no evidence to the contrary. While
Cohen argues it is “improbab[le]” that a company
headquartered in Los Angeles County would be doing
remodeling work in Sacramento, this is insufficient to
compel a finding that David and Sons Remodeling, Inc. is a
continuation of SHE.12
(g) Cohen’s Evidence as a Whole
We find that while portions of Cohen’s evidence may
have supported a finding that SHE and Sheetrit were alter
egos, taken together, the evidence is neither uncontradicted
and unimpeached nor of such a character and weight as to
leave no room for the court’s determination that Cohen failed
to meet his burden. We therefore conclude that Cohen has
failed to demonstrate the court erred in finding he had not
12 Cohen also complains the court did not “give any legitimate
reason for Sheetrit’s opening the new entity,” but acknowledges
that SHE could not obtain any government contracts after the
judgment due to its inability to get the necessary bonds. It
requires no leap of logic to infer Sheetrit opened David and Sons
Remodeling, Inc. after it was no longer viable for SHE to continue
as a business reliant on government contracts.
19
met his burden to demonstrate a unity of interest between
Sheetrit and SHE.13
C. Sheetrit’s Alleged Breach of Fiduciary Duty
Is Irrelevant
Cohen contends the court erred by failing to consider
his argument that Sheetrit (as a director of SHE) breached
his fiduciary duty toward Cohen (as a creditor of SHE) by
failing to direct SHE to pay Cohen with funds acquired after
the judgment. Regardless of whether Sheetrit owed or
breached a fiduciary duty to him, Cohen provides no
authority permitting a court to amend a judgment to add a
director of the judgment debtor solely because the director
breached a fiduciary duty to the judgment creditor. Nor
have we found such authority.
D.The Court Did Not Err in Considering
Sheetrit’s Filings
Cohen argues the court could not consider any filings
by Sheetrit’s attorney because that attorney had not filed a
substitution of counsel. We reject this argument as
unsupported by any authority or coherent argument.14
13 Cohen also alleges SHE’s insolvency gives rise to an
inequitable result as a matter of law. Because we find the court
did not err in finding Cohen failed to demonstrate a unity of
interest, we need not address this contention.
14 Cohen cites Code of Civil Procedure section 285, which
stands for the proposition that opposing counsel must “recognize”
(Fn. is continued on the next page.)
20
(WFG National Title Ins. Co. v. Wells Fargo Bank, N.A.
(2020) 51 Cal.App.5th 881, 894 [“In order to demonstrate
error, an appellant must supply the reviewing court with
some cogent argument supported by legal analysis”].)
an attorney until a substitution of counsel is filed, Board of
Commissioners v. Younger (1865) 29 Cal. 147, 149, for the
proposition that “[a] party to an action may appear in his own
proper person or by attorney, but he cannot do both,” and
McMillan v. Shadow Ridge at Oak Park Homeowner’s Assoc.
(2008) 165 Cal.App.4th 960, 964-966, for the proposition that
opposing counsel is entitled to communicate with the plaintiff
when he is in propria persona, even if another attorney is
“assisting” the plaintiff. Neither authority supports the theory
that a trial court must reject a pleading filed on behalf of a party
by an attorney who has not filed a substitution of counsel. In
fact, in McMillan v. Shadow Ridge at Oak Park Homeowner’s
Assoc., such a situation occurred without comment from the
appellate court. (Id. at 964 [appellate court reviewed decision
denying motion filed by attorney “assisting” plaintiff who had
“not . . . formally substituted into the case”].)
21
DISPOSITION
The court’s order is affirmed. The parties shall bear
their respective costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
22