Hacker v. Fabe CA2/8

Filed 6/12/23 Hacker v. Fabe CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8 .1115.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 EIGHT
RON HACKER, B309997
Plaintiff and Appellant,
Los Angeles County
v. Super. Ct. No. BC341913
JACQUELINE M. FABE,
Defendant and Respondent.
CALIFORNIA STATE LABOR Los Angeles County
COMMISSIONER, DIVISION OF Super. Ct. No. SC099658
LABOR STANDARDS
ENFORCEMENT,
DEPARTMENT OF
INDUSTRIAL RELATIONS,
Plaintiff and Respondent,
v.
1538 CAHUENGA PARTNERS,
LLC,
Defendant.
APPEAL from an amended judgment of the Superior Court
of Los Angeles County. Edward B. Moreton and Holly J. Fujie,
Judges. Affirmed.
Law Offices of Richard M. Fannan, Richard M. Fannan;
Law Office of Richard L. Antognini and Richard Antognini for
Plaintiff and Appellant.
David L. Bell, State of California Department of Industrial
Relations, Division of Labor Standards Enforcement for Plaintiff
and Respondent.
Jacqueline M. Fabe, in pro. per.; Kleinberg & Lerner and
Marshall A. Lerner for Defendant and Respondent.
_____________________________
SUMMARY
The trial court granted a motion by the Labor
Commissioner to amend a judgment to add Ron Hacker as an
alter ego judgment debtor. Mr. Hacker appeals. He contends
there was “virtually no evidence” he commingled his assets or
operations with those of the judgment debtor; the original
judgment was not renewed during the 10-year limitation period;
the doctrine of laches bars the alter ego motion; and the denial of
an earlier alter ego motion barred the current motion under res
judicata principles.
We find Mr. Hacker’s arguments lack merit and affirm the
trial court’s order and judgment.
FACTS
1. The Back Story
This is our third opinion in this case. We take some of the
facts directly from our earlier opinions.
The litigation began in 2005, when Jacqueline Fabe, an
attorney, filed a claim for unpaid wages with the Labor
Commissioner against her employer, 1538 Cahuenga Partners,
2
LLC (Cahuenga or the company). Ms. Fabe obtained an award of
almost $13,000.
A month after Ms. Fabe filed her claim, Cahuenga and its
principal, Mr. Hacker, filed a malpractice suit against Ms. Fabe.
Ms. Fabe filed a retaliation claim with the Commissioner. She
prevailed on her retaliation claim, and the Commissioner sued
Cahuenga, seeking damages (Ms. Fabe’s defense costs) for the
illegal retaliation. Ms. Fabe also cross-complained in the
malpractice suit, seeking indemnity for her legal expenses. The
lawsuits were consolidated. Ms. Fabe and the Commissioner
(collectively, the judgment creditors) prevailed on all their claims,
and judgment was entered on December 11, 2009. (1538
Cahuenga Partners, LLC v. Fabe (Jan. 5, 2012, B222023) 2012
Cal.App.Unpub. Lexis 92, pp. *1–*3 (1538 Cahuenga I).)
A couple of months later, Cahuenga filed an ex parte
application for an order correcting clerical errors in the judgment,
and to quash an abstract of judgment Ms. Fabe had filed that
named Mr. Hacker as a judgment debtor. The abstract was
based on the December 11, 2009 judgment, which erroneously
named Mr. Hacker as a plaintiff and cross-defendant.
(Mr. Hacker had voluntarily dismissed his action against
Ms. Fabe without prejudice in December 2008.) The trial court
amended the judgment to delete reference to Mr. Hacker and
quashed the abstract of judgment. (1538 Cahuenga I, supra,
2012 Cal.App.Unpub. Lexis 92, pp. *15–*16.)
In March 2010, Ms. Fabe filed a motion to add Mr. Hacker
to the judgment as a judgment debtor; this was denied without
prejudice.
In January 2012, we affirmed the judgment.
(1538 Cahuenga I, supra, 2012 Cal.App.Unpub. Lexis 92.)
3
Later that year, on September 14, 2012, an amended
judgment was entered in favor of the Commissioner for more
than $297,000, plus interest, and in favor of Ms. Fabe for more
than $101,000 (to be offset against any recovery by the
Commissioner). (1538 Cahuenga Partners, LLC v. Fabe (Aug. 31,
2015, B253624) 2015 Cal.App.Unpub. Lexis 6259, p. *3 (1538
Cahuenga II).)
For years thereafter, the Commissioner and Ms. Fabe
sought to enforce the judgment, without success.
In April 2012, Benjamin Schneider sat for a debtor’s
examination. As we recounted in 1538 Cahuenga II, Mr. Hacker
resigned as manager of Cahuenga soon after the December 2009
judgment against the company. Mr. Schneider became manager
as of January 1, 2010. Mr. Schneider testified he searched for
documents requested by the judgment creditors in his apartment
(which he said was Cahuenga’s office), and the only document he
found had a bank account number. The bank account had been
closed. He asked Mr. Hacker about bank accounts prior to the
time Mr. Schneider became manager, but received nothing from
Mr. Hacker. Mr. Schneider testified the company had no money,
and that no one received any money or assets from Cahuenga
since he became the manager. (1538 Cahuenga II, supra, 2015
Cal.App.Unpub. Lexis 6259, pp. *3–*4.) He knew nothing about
what happened to the initial capital contributions of the members
and never discussed that with Mr. Hacker.
Beginning in August 2012, the judgment creditors’ efforts
to enforce the judgment included applications for orders requiring
Mr. Hacker, Tanya Bogorad (an employee of Cahuenga at the
time of the underlying litigation), BAG Fund, Inc., and BAG
Fund, LLC, to appear for examination about their knowledge of
4
Cahuenga’s assets and liabilities. Mr. Hacker and the others
resisted these efforts and sought protective orders. (Mr. Hacker
sought an order requiring the judgment creditors to cease any
production or other discovery requests “until they make and
prevail on an alter ego motion to add him as an additional
judgment debtor.”) (1538 Cahuenga II, supra, 2015
Cal.App.Unpub. Lexis 6259, p. *9.)
The trial court largely denied the protective orders. Among
other things, the court observed that “ ‘This case just has a
history of hardball resistance to reasonable requests to enforce
the judgment. . . . [W]hat I see is parties . . . saying we are not
going to comply. We don’t care what you say. Forget it.’ ”
(1538 Cahuenga II, supra, 2015 Cal.App.Unpub. Lexis 6259,
pp. *9–*10.) The court stated “it had held Mr. Schneider in
contempt of court; the records showed ‘the names that kept
coming up were Ron Hacker and Ms. Bogorad as having some
papers and knowledge’; and the motions showed ‘an internet
work [sic] of organizations in which Mr. Hacker is involved and
controls.’ ” (Id. at p. *10.)
After a motion for reconsideration, the trial court declined
to change its order, stating: “ ‘Both in terms of personnel and in
terms of business transactions and assets, there is a strong
potential for there to be property in the possession of the moving
parties [Mr. Hacker et al.] or business records in the possession of
the moving parties that would shed light on the activities and
obligations of the judgment creditors [sic]. And the showing is
that the moving parties are connected with Cahuenga and each
other, that Mr. Hacker had a fundamental role in Cahuenga with
evidence that he was instrumental in the business activities of
5
Cahuenga.’ ” (1538 Cahuenga II, supra, 2015 Cal.App.Unpub.
Lexis 6259, p. *12.)
Mr. Hacker and the other third parties appealed. In
August 2015, we affirmed the trial court’s orders.
(1538 Cahuenga II, supra, 2015 Cal.App.Unpub. Lexis 6259.)
In March and April 2016, Mr. Hacker and Ms. Bogorad
finally appeared for third party debtor’s examinations.
Mr. Hacker could not recall many things, including
whether he was the managing member of Cahuenga during the
2009 trial of the case. (He later testified he was.) He could not
recall whether various attorneys, who the judgment creditors say
appeared in this action on behalf of Cahuenga, ever worked for
Cahuenga. He was asked who paid the attorneys to appear on
behalf of Cahuenga, and responded that “Cahuenga paid some of
them back in the day, I may have paid some of them, and I don’t
know who paid the others.”
Mr. Hacker testified he was the managing member of BAG
Fund, LLC, which was created “sometime in—before 2010.” He
refused to answer who the other members were. He testified
BAG Fund, Inc. was “non-existent, suspended,” “about a year
ago.” He was a vice president and shareholder of BAG Fund, Inc.
Mr. Hacker did not remember whether Ms. Bogorad worked
for BAG Fund, LLC and BAG Fund, Inc., and then testified she
worked for BAG Fund, Inc. “through the attorneys.” He refused
to answer other questions about BAG Fund, Inc. He testified
Ms. Bogorad currently worked for a law firm, and his counsel
stated on the record that she was one of his paralegals.
Notably, Mr. Hacker testified that documents relating to
Cahuenga’s earnings from 2005 to 2010 were in his possession
and control “at some point in time,” and that he had destroyed
6
them. (He also testified that “I don’t know that we ever had any
financial statements.”)
At her debtor examination in April 2016, Ms. Bogorad
testified that she began working for Mr. Hacker as a paralegal in
1997, and continued working for him up until the time of her
examination. She said Mr. Hacker originally hired her for a
company known as Century West Financial, “to work with
attorneys.” She worked for Century West for about three years,
and after that Mr. Hacker offered her a position working for an
attorney whom he had hired to work for Global West
Management. Global West Management paid her as a full-time
employee. She became the paralegal for Cahuenga at the end of
2004 or beginning of 2005. She was a full-time employee of
Cahuenga for four or five years, until the beginning of 2010,
when “the company was sold out or transferred whatever is that,
and my boss [Mr. Hacker], he lost the company.” She testified
Mr. Hacker was still her boss and she still worked for him.
Ms. Bogorad was asked who Mr. Hacker lost the company
to, and testified: “[H]is name was Benjamin and . . . I don’t know
what he did with the company. I know it was transferred. That’s
what I was told, that the company transferred. He sold it or just
give him—it was a gift. That’s what I don’t know, but it was
transferred to Mr. Benjamin.”
Ms. Bogorad testified that from 1997 “through today,” she
“essentially worked for Mr. Hacker through various entities.” At
the time of her examination, she was being paid by BAG Fund,
Inc.
According to Ms. Bogorad, during the time she worked for
Cahuenga, the company had a litigation department and
employed “at the same time maybe one, two attorney[s]; one,
7
two paralegals.” “[I]t was, like, maybe seven, eight attorneys
totally, not at the same time, working for the department” over
the course of five years. There was a separate accounting
department or bookkeeper.
2. The Commissioner’s Motion
On January 9, 2020, the Commissioner filed a motion to
amend the judgment to add Mr. Hacker as the alter ego of
Cahuenga. The motion stated the approaching 10-year
anniversary of the judgment prompted the Commissioner “to seek
to amend that judgment in order to create the possibility of
obtaining some justice for Ms. Fabe.” The Commissioner
submitted the debtor examinations of Mr. Schneider, Mr. Hacker,
and Ms. Bogorad.
Ms. Fabe filed a joinder to the motion.
Mr. Hacker opposed the motion, making essentially the
same arguments he repeats on appeal.
After a hearing, on February 7, 2020, the court
(Judge Edward B. Moreton) granted the motion, and signed an
order to that effect on June 29, 2020.
On August 3, 2020, Mr. Hacker filed a motion for
reconsideration of the court’s ruling, citing “newly discovered
facts” that the judgment creditors knew Cahuenga was not
undercapitalized, “willfully did not collect” assets belonging to
Cahuenga in 2012, and “intentionally concealed” that information
from the court, instead wrongfully filing the alter ego motion.
On October 29, 2020, the court (Judge Holly J. Fujie)
entered the second revised amended judgment adding
Mr. Hacker as an alter ego judgment debtor.
On December 4, 2020, the court (Judge Moreton) denied
Mr. Hacker’s motion for reconsideration. After pointing out
8
various deficiencies in Mr. Hacker’s motion, the court stated:
“When the Court made its decision to add Ron Hacker as a
judgment debtor, it had substantial evidence that supported its
finding that 1538 Cahuenga Partners is an alter ego of Ron
Hacker and that Mr. Hacker should be added as a judgment
debtor. This included evidence that there was a unity of interest
because Mr. Hacker exercised complete control over 1538
Cahuenga Partners, that Mr. Hacker controlled the underlying
litigation and that he shared attorneys with 1538 Cahuenga
Partners, that Mr. Hacker had transferred assets of 1538
Cahuenga Partners to himself, that Mr. Hacker transferred
control of the remaining assets in 1538 Cahuenga Partners to
Benjamin Schneider, and that Mr. Hacker had destroyed relevant
records of assets. This evidence identifies other grounds under
the alter ego doctrine to amend the judgment and add Ron
Hacker as an additional judgment debtor.” The motion for
reconsideration did not “identify a new fact, circumstance, or law
that would be grounds to modify or amend the prior order,” and
“[t]his is further grounds to deny his motion.”
Mr. Hacker filed a timely appeal from the October 29, 2020
judgment.
DISCUSSION
As stated at the outset, we find no error in the court’s
decision to add Mr. Hacker as an alter ego judgment debtor.
1. The Alter Ego Finding
a. The law
The Supreme Court tells us that “[t]he essence of the alter
ego doctrine is that justice be done. ‘What the formula comes
down to, once shorn of verbiage about control, instrumentality,
agency, and corporate entity, is that liability is imposed to reach
9
an equitable result.’ ” (Mesler v. Bragg Management Co. (1985)
39 Cal.3d 290, 301 (Mesler).)
Another court explains the equitable doctrine:
“ ‘A corporate identity may be disregarded—the “corporate veil”
pierced—where an abuse of the corporate privilege justifies
holding the equitable ownership of a corporation liable for the
actions of the corporation. [Citation.] Under the alter ego
doctrine, then, when the corporate form is used to perpetuate a
fraud, circumvent a statute, or accomplish some other wrongful
or inequitable purpose, the courts will ignore the corporate entity
and deem the corporation’s acts to be those of the persons or
organizations actually controlling the corporation, in most
instances the equitable owners.’ ” (Troyk v. Farmers Group,
Inc. (2009) 171 Cal.App.4th 1305, 1341 (Troyk).)
“ ‘In California, two conditions must be met before the alter
ego doctrine will be invoked. First, there must be such a unity of
interest and ownership between the corporation and its equitable
owner that the separate personalities of the corporation and the
shareholder do not in reality exist. Second, there must be an
inequitable result if the acts in question are treated as those of
the corporation alone.’ ” (Troyk, supra, 171 Cal.App.4th at
p. 1341.)
“Factors for the trial court to consider include the
commingling of funds and assets of the two entities, identical
equitable ownership in the two entities, use of the same offices
and employees, disregard of corporate formalities, identical
directors and officers, and use of one as a mere shell or conduit
for the affairs of the other. [Citation.] ‘No one characteristic
governs, but the courts must look at all the circumstances to
10
determine whether the doctrine should be applied.’ ” (Troyk,
supra, 171 Cal.App.4th at p. 1342.)
“The decision to grant or deny the motion lies within the
sound discretion of the trial court [citation] and will not be
disturbed on appeal if there is a legal basis for the decision and
substantial evidence supports it.” (Highland Springs Conference
& Training Center v. City of Banning (2016) 244 Cal.App.4th 267,
280.)
b. This case
After several pages of briefing that characterize Ms. Fabe
as having a “near pathological drive” to add him to the judgment;
repeatedly describe her actions in 2010 as “fraudulent” and
“malfeasance”; and assert she “fabricat[ed]” judgment documents
and an affidavit and “resorted to fraud and artifice,” Mr. Hacker
gets to his argument: that there is “virtually no evidence” of a
unity of interest between him and Cahuenga. He contends the
Commissioner did not show undercapitalization, commingling of
funds, disregard of corporate formalities, identical directors and
officers, and similar factors.
We do not accept Mr. Hacker’s analysis. As the trial court
observed, “no single factor is determinative, and instead, a Court
must examine all the circumstances to determine whether to
apply the [alter ego] doctrine.” The court cited Mr. Hacker’s
complete control over Cahuenga, his control of the litigation, his
sharing of attorneys with Cahuenga, his transfer of the company
to Mr. Schneider (immediately after the judgment), and his
destruction of relevant records of assets. Ms. Bogorad received
paychecks from Cahuenga until Mr. Hacker transferred the
company to Mr. Schneider, following which she continued to work
for Mr. Hacker under the auspices of another company. It is
11
reasonable to infer from Mr. Hacker’s manipulation of the
company and destruction of its records that “ ‘the separate
personalities of the corporation and the shareholder do not in
reality exist.’ ” (Troyk, supra, 171 Cal.App.4th at p. 1341.)
Mr. Hacker cites cases stating that “even if the unity of
interest and ownership element is shown, alter ego will not be
applied absent evidence that an injustice would result from the
recognition of separate corporate identities, and ‘[d]ifficulty in
enforcing a judgment or collecting a debt does not satisfy this
standard.’ ” (VirtualMagic Asia, Inc. v. Fil-Cartoons, Inc. (2002)
99 Cal.App.4th 228, 245, quoting Sonora Diamond Corp. v.
Superior Court (2000) 83 Cal.App.4th 523, 539 (Sonora
Diamond).) Mr. Hacker apparently construes the phrase quoted
from Sonora Diamond to mean that, in this case, all Ms. Fabe
has shown is “inability to collect on the judgment” and so “she
has failed to carry her burden.” That is not the case.
In Sonora Diamond, there “was no evidence of any
wrongdoing” by either corporation involved. (Sonora Diamond,
supra, 83 Cal.App.4th at p. 539.) The court stated the alter ego
doctrine “does not guard every unsatisfied creditor of a
corporation but instead affords protection where some conduct
amounting to bad faith makes it inequitable for the corporate
owner to hide behind the corporate form.” (Ibid.) In short, in
Sonora Diamond there was no “conduct amounting to bad faith,”
but there is such conduct here. (See also J.H. Rose Logistics, LLC
v. Bonerts Inc. (Nov. 20, 2017, No. 2:17-cv-03556-CAS(GJSx))
2017 U.S.Dist. Lexis 192971, pp. *14–*15 [stating that while
there was no evidence of bad faith in Sonora Diamond, in J.H.
Rose the plaintiff was “not just an unsatisfied creditor; the
[complaint] includes specific allegations of bad faith”].) As the
12
Commissioner contends, “[a]llowing Mr. Hacker to hide behind
the corporate shell of [Cahuenga]” would be an inequitable result.
Then Mr. Hacker asserts, with no citation to the record,
that during the trial court proceedings, he “provided detailed
information that [Cahuenga] had assets totaling over
$400,000.00, more than enough to satisfy the judgment,” and
Ms. Fabe “failed to take any action against [Cahuenga] assets
which could have satisfied the Judgement [sic] in full.” We
assume these assertions refer to Mr. Hacker’s motion for
reconsideration, which the trial court properly rejected.
“The essence of the alter ego doctrine is that justice be
done.” (Mesler, supra, 39 Cal.3d at p. 301.) Mr. Hacker has
shown no abuse of discretion in the trial court’s alter ego ruling.
2. The Claim of Failure to Renew the Judgment
Mr. Hacker next argues that the judgment was not
renewed within the 10-year renewal period, and so had expired
and cannot be enforced. He is mistaken.
A judgment is enforceable “upon entry” (Code Civ. Proc.,
§ 683.010), and “upon the expiration of 10 years after the date of
entry of a money judgment,” the judgment “may not be enforced”
(§ 683.020, subd. (a)). The Commissioner filed an alter ego
motion to amend the judgment on January 9, 2020. The
judgment to be amended is the revised amended judgment
entered on September 14, 2012. The 10-year renewal period had
not expired.
Mr. Hacker contends the 10 years run from the date of the
original judgment (December 11, 2009). It does not. The court in
Iliff v. Dustrud (2003) 107 Cal.App.4th 1201 expressly held
otherwise, stating: “These provisions need no judicial
construction. The statutory language is unambiguous and we
13
abide by its plain and straightforward terms. . . . [A] party in
whose favor a judgment has been rendered is entitled to
execution immediately upon entry. . . . By the statute’s plain
terms this rule applies to any money judgment . . . regardless of
whether it be a modified or amended judgment, and without
regard to finality. Upon entry by the clerk, any such judgment is
enforceable for a 10-year period.” (Id. at p. 1207, citations
omitted, italics added; id. at p. 1206 [finding the 10-year period
began “upon entry of the amended judgment . . . , not from entry
of the original judgment”]; see also In re Marriage of Wilcox
(2004) 124 Cal.App.4th 492, 502 [“When an amended judgment is
entered, the 10-year period within which the judgment must be
enforced or renewed commences upon the date of entry of the
amended or modified judgment.”].)
Mr. Hacker contends Iliff v. Dustrud was incorrectly
decided. We find no basis, in Mr. Hacker’s arguments or
otherwise, to disagree with the court’s analysis.
3. The Claim of Laches
a. The law
“If, in light of the lapse of time and other relevant
circumstances, a court concludes that a party’s failure to assert a
right has caused prejudice to an adverse party, the court may
apply the equitable defense of laches to bar further assertion of
the right.” (In re Marriage of Fellows (2006) 39 Cal.4th 179, 183.)
“The standard of review for an order applying the doctrine
of laches is generally substantial evidence. [Citation.] But
because laches is an affirmative defense, . . . the standard of
review for an order refusing to apply laches is different. ‘ “In the
case where the trier of fact has expressly or implicitly concluded
that the party with the burden of proof did not carry the burden
14
and that party appeals, it is misleading to characterize the
failure-of-proof issue as whether substantial evidence supports
the judgment . . . .” ’ [Citation.] Instead, ‘ “the question for a
reviewing court becomes whether the evidence compels a finding
in favor of the appellant as a matter of law” ’ because ‘ “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.’ ” ’ ” (Lent v. California Coastal Com. (2021)
62 Cal.App.5th 812, 837 (Lent).)
“For purposes of laches, ‘ “ ‘ “[a] defendant has been
prejudiced by a delay when the . . . defendant has changed his
position in a way that would not have occurred if the plaintiff had
not delayed.” ’ ” ’ ” (Lent, supra, 62 Cal.App.5th at p. 838.)
b. This case
Mr. Hacker contended in the trial court that the motion to
amend the judgment was barred by the doctrine of laches. The
trial court implicitly concluded Mr. Hacker did not carry his
burden of proof on that point when it granted the Commissioner’s
motion. The evidence does not compel a finding in Mr. Hacker’s
favor as a matter of law. (Lent, supra, 62 Cal.App.5th at p. 837.)
Mr. Hacker asserts Ms. Fabe “provided no evidence to
support her excuse for the 7-year delay in taking the post-
judgment depositions,” and there was “no evidence submitted
that the delay was caused by Hacker in any way.” But the
burden of proof was Mr. Hacker’s. Moreover, Mr. Hacker has
apparently forgotten that in 2015, in 1538 Cahuenga II, we
affirmed the denial of his motion for a protective order preventing
his deposition, quoting the trial court’s observation that “ ‘[t]his
case just has a history of hardball resistance to reasonable
15
requests to enforce the judgment. . . . [W]hat I see is parties . . .
saying we are not going to comply. We don’t care what you say.
Forget it.’ ” (1538 Cahuenga II, supra, 2015 Cal.App.Unpub.
Lexis 6259, pp. *9–*10.)
Then Mr. Hacker challenges the delay between the 2016
debtor examinations and the January 2020 motion to amend the
judgment. He claims, without citation to the record, that he
“suffered harm” from the erroneous abstract of judgment
Ms. Fabe filed in 2010. (In 2012, we affirmed the trial court’s
order quashing that abstract.) Mr. Hacker further claims
unspecified harm “in terms of [his] ability to present evidence to
rebut [the judgment creditors’] alter ego claims.” Again, he cites
no evidence. These unsupported assertions, of course, do not
establish either unreasonable delay or prejudice.
4. The Res Judicata Claim
“The doctrine of res judicata precludes parties or their
privies from relitigating an issue that has been finally
determined by a court of competent jurisdiction.” (Levy v.
Cohen (1977) 19 Cal.3d 165, 171.) Mr. Hacker contends the
doctrine applies to bar the Commissioner’s alter ego motion,
because the trial court denied Ms. Fabe’s 2010 alter ego motion
for lack of evidence, and that ruling was “clearly ‘final.’ ” We
disagree.
Citing no legal authority, Mr. Hacker dismisses the fact the
trial court repeatedly stated its 2010 alter ego ruling was
“without prejudice.” Indeed, the court observed, “If you guys go
back to the drawing board, I’ll consider this again.” We cannot
construe that ruling as a final ruling on the merits. (See
Williams v. City of Oakland (1973) 30 Cal.App.3d 64, 69 [“It has
repeatedly been held that: ‘The term “without prejudice,” in its
16
general adaptation, means that there is no decision of the
controversy on its merits, and leaves the whole subject in
litigation as much open to another application as if no suit had
ever been brought.’ [Citations.] It has been said that the
‘purpose and effect of the words “without prejudice” in a decree
dismissing a bill is to prevent the defendants from availing
themselves of the defense of res adjudicata in any subsequent
proceeding by the same plaintiffs on the same subject matter.’ ”].)
DISPOSITION
The second revised amended judgment is affirmed. The
Labor Commissioner and Ms. Fabe are entitled to costs on
appeal.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
17