Larson v. Kim CA2/3

Filed 3/18/21 Larson v. Kim CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
ANDREW LARSON, B301051
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC460381)
v.
MOON KI KIM,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, James E. Blancarte, Judge. Dismissed.
LimNexus, Lisa Y. Yang, Mark T. Hansen and George T.
Busu for Defendant and Appellant.
Andrew Larson, in pro. per., for Plaintiff and Respondent.
——————————
Moon Ki Kim (Kim) purports to appeal from two orders
denying his motions to quash the writ of execution and vacate the
underlying affidavit of identity. We dismiss the appeal as the
trial court never entered an appealable order. Rather, it entered
interim orders to preserve the status quo and indicated it would
address the merits of the matter at a future hearing after
additional papers and motions were filed.
BACKGROUND
Plaintiff Daisy Sandoval entered into a stipulated judgment
putting an end to her wrongful termination action against the
Law Offices of Moon Kim (the law offices). She assigned her
judgment to Andrew Larson, dba HCR Beverly Hills (Larson), for
collection. Without notice, Larson filed an affidavit of identity
declaring that the judgment debtor law offices was also known as
Moon Kim, an individual. (See Code Civ. Proc.,1 § 680.135.)
Judge Moreton signed the affidavit of identity and ordered
that Kim be added in his individual capacity as a judgment
debtor to any writ of execution or abstract of judgment. Larson
subsequently obtained a writ of execution and the sheriff levied
on Kim’s personal bank accounts.
Kim moved for a temporary restraining order to prohibit
the collection of the judgment against his personal bank
accounts. He moved to recall or quash the writ of execution and
to vacate the order on the affidavit of identity. Kim argued he
was never a party to Sandoval’s lawsuit: He was not a named as
1All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2
a defendant in his individual capacity and was never added as a
Doe defendant.
Larson’s opposition argued the judgment debtor law offices
was really a sole proprietorship and a fictitious business name.
Even if the law offices were a properly formed corporation,
Larson argued that pursuant to section 187 the trial court should
find that Kim was its alter ego. The opposition listed nine facts
supporting his alter ego theory.
Judge Moreton recused himself and the matter was
reassigned to Judge Blancarte who issued a temporary order
restraining Kim’s banks from releasing any property to the
sheriff.
At the hearing on Kim’s motion to recall the writ of
execution and vacate the order on the affidavit of identity, Kim
argued the affidavit was invalid because the individual is a
different legal entity from the judgment debtor law offices. Kim
added that Larson had not properly filed or served a motion to
establish alter ego and so Kim had no notice of his addition to the
judgment as an individual. Larson replied both that the law
offices was a fictitious business name, and that Kim was its alter
ego. As Larson was not an attorney, he had followed what he
thought was the appropriate procedure to include Kim, as an
individual, on the writ of execution.
The trial court expressed concern about the equities given
Kim wanted a ruling that he was not individually liable on the
judgment, while Larson sought to bind Kim, individually, in his
capacity as an alter ego of the law firm without having filed a
proper motion under section 187. Hence, the court decided “to
take the facts that exist today and see what it is that would be
fair and equitable on the theory that Mr. Kim is subject to an
3
alter ego theory.” The court asked the parties to set a date to
brief and argue whether Kim, as an individual, was the alter ego
of the judgment debtor law offices. A discussion ensued with the
clerk about reserving the next available court date. The court
froze the funds in Kim’s accounts necessary to satisfy the
judgment and barred any further collection activity.
The August 20, 2019 minute order issued after the hearing
stated that the court had denied without prejudice Kim’s motion
to vacate the affidavit of identity for several reasons: The court
could not reconsider and overrule an interim ruling of another
judge; the court lacked jurisdiction to reconsider the order
because Kim had not filed or paid for a motion for
reconsideration; and, Kim had never filed a motion under section
703.510 to claim exemptions to the writ of execution. It then
indicated that the court had denied Kim’s motion to quash the
writ of execution without prejudice on the ground the writ of
execution was based on an affidavit of identity that still listed
Kim individually, and the court ordered Larson not to collect the
subject funds and ordered Kim not to spend, transfer, or waste
any of the subject funds until further order.
The court amended the minute order nunc pro tunc to add
that before filing any motion regarding alter ego, Kim must file a
motion to reconsider and vacate the affidavit of identity and
order. Larson moved to amend the judgment to include an alter
ego defendant, but by then Kim had already filed his notice of
appeal.
DISCUSSION
“The existence of an appealable judgment is a jurisdictional
prerequisite to an appeal. A reviewing court must raise the issue
on its own initiative whenever a doubt exists as to whether the
4
trial court has entered a final judgment or other order or
judgment made appealable by . . . section 904.1.” (Jennings v.
Marralle (1994) 8 Cal.4th 121, 126.) Accordingly, we asked the
parties to submit supplemental letter briefs addressing
appealability. (See Gov. Code, § 68081.)
“Despite the inclusive language of . . . section 904.1,
subdivision (b), not every postjudgment order . . . is appealable.”
(Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644,
651.) Here, the trial court issued a temporary stay of the writ of
execution and froze Kim’s assets, all until further order. It
denied the motions to quash and vacate without prejudice so Kim
could bring the proper motions. Also, recognizing that Larson
had improperly used the affidavit of identity to add Kim as a new
judgment debtor on the basis of the alter ego doctrine, it asked
him to file a separately noticed motion. (See McClellan v.
Northridge Park Townhome Owners Assn. (2001) 89 Cal.App.4th
746, 752 [motion under § 187 is correct procedure to add
judgment debtor on alter ego grounds].) The record is clear that
the court intended to rule on the competing requests after the
parties filed the proper motions.
As the court expressly contemplated further proceedings,
and no rulings on the merits had been made, the order of
August 20, 2019 is not appealable. (See, e.g., Gibson v. Savings
& Loan Commissioner (1970) 6 Cal.App.3d 269, 272 [denial
5
without prejudice of alternative writ not appealable where court
did not intend order to finally determine parties’ rights].)
Accordingly, we dismiss the appeal.2
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
SALTER, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
2 Kim argues in his supplemental letter brief that even if
the order of August 20, 2019 is not appealable, the May 6, 2019
order on the affidavit of identity is independently appealable and
his timely notice of appeal separately identified the earlier order.
However, as Kim also acknowledged in his letter brief, the
validity of the May 2019 order was at issue in the August 20,
2019 interlocutory order, and so it suffers the same fate.
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
6