Opinion
F084679
04-29-2024
ARMARJIT KANDOLA, Plaintiff and Respondent, v. BHUPINDER SAHOTA, Defendant and Appellant.
Law Office of P. Fateh K. Sahota, P Fateh K. Sahota, for Defendant and Appellant. Morse, Morse &Morse, Brian D. Morse; McCormick, Barstow, Sheppard, Wayte &Carruth, Scott M. Reddie, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. No. CVM017462 Donald E. Shaver, Judge.
Law Office of P. Fateh K. Sahota, P Fateh K. Sahota, for Defendant and Appellant.
Morse, Morse &Morse, Brian D. Morse; McCormick, Barstow, Sheppard, Wayte &Carruth, Scott M. Reddie, for Plaintiff and Respondent.
OPINION
SMITH, J.
Amarjit Kandola filed a complaint against Sohan Singh Sahota for breach of contract and the latter filed a cross-complaint against Amarjit Kandola. During the pendency of the case in the trial court, Sohan Sahota passed away. The trial court substituted Sohan Sahota's widow, Bhupinder Kaur Sahota, as Sohan Sahota's successor in interest for purposes of this action. Amarjit Kandola prevailed on the claims in both his complaint and in the cross-complaint. We affirmed the judgment in its entirety in a prior appeal brought by Bhupinder Kaur Sahota. In the meantime, in the course of a limited remand from this court during the pendency of the prior appeal, the trial court amended the judgment to add to the judgment, Bhupinder Sahota in her capacity as the personal representative of Sohan Sahota's estate. Bhupinder Sahota now appeals the trial court's ruling adding her to the judgment in her capacity as the personal representative of Sohan Sahota's estate. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant Sohan Singh Sahota Passed Away Prior to the Trial in this Breach of Contract Matter; Bhupinder Kaur Sahota Was Substituted in His Place
This case arises from the breach of a lease agreement for a 112-acre parcel of land by the lessor, Sohan Singh Sahota, who had leased the land to Amarjit Kandola for the purpose of growing sweet potatoes. On February 3, 2014, Kandola initiated this action by filing a complaint against Sohan Sahota. Kandola alleged Sohan Sahota had breached the lease for the 112-acre property and Kandola had suffered damages as a result of being unable to plant sweet potatoes on the land as planned (the operative complaint in the matter was the second amended complaint that alleged a single cause of action for breach of contract). Sohan Sahota filed a cross-complaint on December 2, 2014, alleging that Kandola had negligently farmed peach orchards on two unrelated properties he also leased from Sohan Sahota.
The matter proceeded to bench trial. With respect to Kandola's complaint, the trial court found that Sohan Sahota had improperly breached the lease; the court set Kandola's damages in the amount of $692,365. As for the cross-complaint, the trial court found in favor of Kandola on all causes of action in the cross-complaint. Judgment was entered in favor of Kandola and we affirmed the judgment in a prior appeal. (See Kandola v. Sahota (Feb. 8, 2023, F079660, [nonpub. opn.]) (Kandola I).)
The instant appeal arises from an unusual situation that arose after Sohan Sahota died prior to trial, on November 19, 2017. On December 12, 2017, the parties appeared in court for trial. At that time, counsel for Sohan Sahota-Sahota's counsel was his daughter, Fateh Sahota-advised the court that Sohan Sahota had passed away and requested a continuance to enable her to file a motion to substitute a proper successor for Sohan Sahota in the case.
Thereafter, on April 12, 2018, Sohan Sahota's wife, Bhupinder Kaur Sahota (mother of counsel, Fateh Sahota), filed a declaration under penalty of perjury stating (1) Sohan Sahota died in India on November 19, 2017; (2) no proceeding was then pending in California for the administration of Sohan Sahota's estate, and (3) she was the decedent's successor in interest as defined in Code of Civil Procedure section 377.11 and thereby succeeded to his interest in the action. On April 24, 2018, Bhupinder Sahota filed an amended declaration under penalty of perjury that restated the points in her initial declaration and added that no other person had a superior right to be substituted into the case on behalf of the decedent.
On May 16, 2018, the trial court granted the parties' respective motions to substitute Bhupinder Sahota as successor in interest to Sohan Sahota, deceased, as the defendant and cross-complainant in this action. On October 31, 2018, the trial court granted Kandola's request to amend his pleadings to substitute Bhupinder Sahota as successor in interest to Sohan Sahota, deceased, as the defendant in the action. Trial commenced on November 28, 2018, and on March 26, 2019, judgment was entered in favor of Kandola and against Bhupinder Sahota, as successor in interest to Sohan Sahota, in the amount of $692,365.00, plus costs.
B. Concurrent Proceedings in the Probate Court Regarding Probate of Sohan Sahota's Will; Bhupinder Sahota Was Named Personal Representative/Executor of the Estate
Meanwhile, unbeknownst to Kandola or his counsel, on August 20, 2018, over two months before Kandola amended his pleadings to substitute Bhupinder Sahota as successor in interest to Sohan Sahota, Bhupinder Sahota filed in probate court a sworn petition for probate of a will dated April 30, 1996, seeking to appoint herself as personal representative/executor of the estate of Sohan Sahota. The probate petition stated that the estate consisted of real property valued at $15 million. The copy of Sohan Sahota's will that was attached to the petition, provided that the residue of decedent's estate was left to the trustee of the Sohan Singh Sahota and Bhupinder Kaur Sahota Revocable Trust, created under a trust agreement executed on April 30, 1996 (the Trust).
A hearing on the probate petition was held on October 11, 2018, at which time it was granted and the will was admitted to probate. A formal order was issued by the probate court on October 11, 2018, naming Bhupinder Kaur Sahota as personal representative/executor of the estate and letters testamentary were issued to Bhupinder Sahota on October 17, 2018.
On November 15, 2019, Bhupinder Sahota filed, in the probate case, a verified ex parte petition for preliminary distribution that reflected that the value of the estate was over $8.5 million. In the verified ex parte petition, Bhupinder Sahota averred, among other things, that "Petitioner has made all reasonable efforts to ascertain creditors of the decedent" and that "Notice of administration has been sent to all known and reasonably ascertainable creditors." However, Bhupinder Sahota had not notified Kandola of the probate proceedings concerning Sohan Sahota's estate.
Counsel for Kandola learned of the pending probate action on or about February 2, 2021, and on February 17, 2021, Kandola filed a request for special notice in the probate case. Thereafter, on March 19, 2021, Kandola filed in the probate proceeding, a petition to allow late filing of a claim against the estate. Bhupinder Sahota opposed Kandola's petition for permission to file a late claim.
C. The Probate Court's Determinations Regarding Bhupinder Sahota's Conduct
In a detailed and thorough 35-page order filed on May 14, 2021, the probate court granted Kandola's request to file a late claim. In doing so, the court found there was "really no dispute" that the "[p]ersonal representative failed to send proper and timely notice of administration of the estate to the creditor." The court further found "Bhupinder Kaur Sahota, in her individual capacity, was never qualified to continue the pending [breach of contract civil] action ... as successor-in-interest." The probate court observed in its order:
"Put another way, had Bhupinder Kaur Sahota ever revealed the truth to this court or to Creditor Amarjit Kandola, i.e. that the true successor in interest was Bhupinder Kaur Sahota, in her capacity as trustee of the Sohan Singh Sahota and Bhupinder Kaur Sahota Revocable Trust, created under the trust agreement executed on April 30, 1996, the successor in interest would have been immediately changed from Bhupinder Kaur Sahota in her individual capacity to Bhupinder Kaur Sahota, in her capacity as trustee of the Sohan Singh Sahota and Bhupinder Kaur Sahota Revocable Trust, created under the trust agreement executed on April 30, 1996.
"Furthermore, had Bhupinder Kaur Sahota ever revealed the truth to this court or to Creditor Amarjit Kandola, that she had been appointed Personal Representative/Executor of the Estate of Decedent Sohan Singh Sahota on October 11, 2018, then the successor-in-interest would have been immediately changed to Bhupinder Kaur Sahota, Personal Representative."
The probate court noted that, "[a]fter October 31, 2018, each paper that Bhupinder Kaur Sahota filed in [the breach of contract civil case] in her alleged capacity as successor-in-interest and each appearance she made when she or her attorney represented that she was successor-in-interest implied two untrue facts: (1) that she had ever been successor-in-interest, and (2) that a personal representative had not been appointed." The probate court added: "While it is true that Creditor Amarjit Kandola could have petitioned to open a probate or Special Administration for Sohan Singh Sahota, Deceased, so that a creditor claim could be filed, the false representation by Bhupinder Kaur Sahota that she, in her individual capacity, rather than she as trustee, was the successor in interest made it appear that filing a creditor claim served no practical purpose because the estate would be inherited by the person falsely claiming to be the successor in interest when in fact it would be inherited by the trust and the assets of the estate would not be available to pay the judgment against the alleged successor in interest."
The probate court stated Bhupinder Sahota's actions went "far beyond mere failure to provide notice to a known creditor." The court explained:
"[W]hen Bhupinder Kaur Sahota filed declarations on April 12, 2018 and April 24, 2018 containing untrue statements that she was the successor in interest to Sohan Singh Sahota, Deceased, she became both the Defendant of the claim by Creditor Amarjit Kandola and the Cross-complainant in a claim by Sohan Singh Sahota against Amarjit Kandola seeking $70,000 in damages. Although the claim contained in the cross-complaint was an asset of the Estate of Sohan Singh Sahota of which Bhupinder Kaur Sahota was executor, and any judgment obtained would have been distributed by the estate to the trustee of the Sohan Singh Sahota and Bhupinder Kaur Sahota Revocable Trust, created under the trust agreement executed on April 30, 1996, i.e. Bhupinder Kaur Sahota as trustee, the effect of . . . such action was that Bhupinder Kaur Sahota sought to have an asset of the estate that was destined to be distributed to the trust [to be] paid to her in her individual capacity, an action that breached both her duty as Executor/Personal Representative, and her duty as Trustee.
"Ultimately, the cross-claim was adjudicated to have no value, but the false representation by Bhupinder Kaur Sahota that she, in her individual capacity, rather than she as trustee, was the successor in interest who was entitled to inherit the proceeds of the cross-complaint made it appear that filing a creditor claim served no practical purpose because the estate would be inherited by the person falsely claiming to be the successor in interest when in fact it would be inherited by the trust and the assets of the estate would not be available to pay any net judgment against the alleged successor in interest."
The probate court further explained:
"Administrator/Executor Bhupinder Kaur Sahota delayed filing a Probate Petition until shortly before the Code of Civil Procedure section 366.2 Statute of Limitations was set to expire, receiving her Letters Testamentary on October 17, 2018, just 31 days prior to the one-year anniversary of decedent's date of death, and did not send either a Notice of Hearing on the Probate Petition or a Notice of Administration of Estate to Creditor Amarjit Kandola even though she had personally appeared in his pending civil action. [¶ ] ... [¶ ]
"As noted above, Administrator/Executor Bhupinder Kaur Sahota never qualified as a successor-in-interest, and her false statement that she was a successor-in-interest inferred that any judgment in the civil case could be satisfied out of the assets she would receive from the estate, when in fact Bhupinder Kaur Sahota would only receive such assets in her capacity as Trustee of the Sohan Singh Sahota and Bhupinder Kaur Sahota Revocable Trust, created under the trust agreement executed on April 30, 1996. Having represented that no probate proceeding was pending, Bhupinder Kaur Sahota did not apprise either the Court or Creditor Amarjit Kandola that an estate had in fact been opened when she was substituted as Defendant/Cross-Complainant in the Civil Action and that the time for making a claim against the estate was soon to expire."
The probate court granted Amarjit Kandola's petition to file a late creditor's claim in the probate matter concerning the estate of Sohan Singh Sahota In addition, the probate court issued, to Bhupinder Sahota, an order to show cause as to why she should not be removed as the personal representative of the estate of Sohan Sahota and replaced by a licensed professional fiduciary. The court noted that Bhupinder Sahota had made several false statements in sworn declarations filed in the civil breach of contract case as well as in sworn documents filed in the probate case, specifically in the verified ex parte petition for preliminary distribution and supporting documents she filed in the probate court.
Subsequently, in an order filed on August 2, 2021, the probate court denied Bhupinder Sahota's motion for reconsideration of the order granting Kandola's petition to file a late creditor's claim. The court ruled: "[T]his court lacks jurisdiction to reconsider its prior ruling pursuant to motion for reconsideration, and declines to do so on its own motion." The court once again detailed numerous sworn false statements made by Bhupinder Sahota in both the instant civil case and the probate case, noting: "Nothing in the motion for reconsideration changes or mitigates the conduct of Bhupinder Kaur Sahota." The probate court concluded: "Accordingly, the Motion for Reconsideration is DENIED. Claimant Kandola is to file [his] late claim on or before September 3, 2021." Kandola thereafter filed his claim.
Meanwhile, the direct appeal from the March 26, 2019 judgment in the instant civil case was pending in this court. In light of the proceedings in the probate court, on August 10, 2021, Kandola advised this court of the need to amend the judgment debtor in this civil case. Ultimately, on October 4, 2021, this court issued an order remanding the matter to the trial court "for the limited purpose of addressing, in the first instance, the timeliness and merits of any request by either party to substitute a party, and the related question whether the judgment may properly be amended." Appellate proceedings were stayed for the duration of the limited remand.
D. The Trial Court's Determinations With Respect to Kandola's Motion to Amend the Judgment, Upon a Limited Remand From This Court
On February 7, 2022, Kandola filed a motion to amend the judgment in the instant case, in the trial court. In the motion, Kandola asked the trial court to add "Bhupinder Kaur Sahota, as Personal Representative/Executor of the Estate of Decedent Sohan Singh Sahota" to the March 26, 2019 judgment. Kandola noted that but for Bhupinder Sahota's fraudulent and deceptive conduct, Bhupinder Sahota in her capacity as personal representative/executor would have been a judgment debtor at the time judgment was entered.
Bhupinder Sahota responded with three filings. First, on February 28, 2022, Bhupinder Sahota filed an opposition to Kandola's motion to amend the judgment. Second, on April 11, 2022, Bhupinder Sahota filed a motion to amend or modify the judgment, under Code of Civil Procedure section 473, subdivision (a)(1), by striking Bhupinder Sahota "as a named defendant as the successor in interest to decedent Sohan Singh Sahota." Third, on May 16, 2022, Bhupinder Sahota filed a motion to set aside the judgment against Bhupinder Sahota as successor in interest to Sohan Singh Sahota under Code of Civil Procedure section 473, subdivision (d), on the ground the judgment against her was void for lack of jurisdiction.
After a hearing held on March 14, 2022, the trial court on May 24, 2022, entered a written order granting Kandola's motion to amend the judgment. Specifically, the trial court ruled: "It is hereby ordered, adjudged and decreed that plaintiff's motion to amend the judgment in this case, nunc pro tunc to the date the original judgment was entered on March 26, 2019, by adding to the judgment the following judgment debtor: Bhupinder Kaur Sahota, as Personal Representative/Executor of the Estate of Decedent Sohan Singh Sahota, is hereby GRANTED in its entirety for the reasons set forth in the Reporter's Transcript of Motion to Amend Judgment, a true and correct copy of which is attached to this order as Exhibit 'A' and incorporated herein by reference." (Some capitalization omitted.)
The reporter's transcript of the hearing on Kandola's motion to amend reflected that the trial court incorporated in its order, the findings of the probate court as documented in the probate court's May 14, 2021 order (granting Kandola's petition to file late creditor's claim) and August 2, 2021 order (denying Bhupinder Sahota's motion for reconsideration) (these probate court orders are discussed above). More specifically, the trial court noted at the hearing on the motion to amend judgment that the probate court's "orders from May 14th and August 2nd of [2021] are incorporated into the decision in this case, and the records."
Since the trial court initially rendered its decision verbally at the hearing on Kandola's motion to amend the judgment, we will describe what occurred at the hearing. At the hearing, after hearing argument from the parties, the trial court outlined the relevant factual background with regard to Kandola's motion to amend. The court noted that when Sohan Sahota died, Bhupinder Sahota initially offered a stipulation to the effect that she be substituted in as the personal representative, when she was not the personal representative at the time. The court stated: "And I believe that was intentional. And it's too much of a coincidence, that being a negligent error, that it would just have happened to insulate all of the estate from the judgment by doing that." The court added: "If she was never the personal representative . . . judgment in that name alone would not be enforceable against any of the trust estates. All the property was going into a trust." The court continued: "When the problem with ... calling her a personal representative [at that early point in time, before probate was opened] was finally figured out, the next [thing] offered was a successor in interest. Now, at that time, she was not a successor in interest; the trust was the successor in interest. Any judgment, coincidentally, that would have come out with her as the successor in interest would have been unenforceable and would have protected all of the assets of the estate from any judgment that was made under that name." The court further observed: "So, I think that was intentional as well."
The trial court summed up its observations and findings:
"Looking at all of - all of the misrepresentations that were made throughout this case, I can't believe that that was an unintentional error that would have a hugely beneficial [e]ffect on the party making the error.
"So the Court's view is that this has been part of a fairly longstanding effort to prevent - to - to make a fraud upon the Court. And I believe it has been intentional. And it has been for the purpose of protecting the assets of the estate from the judgment.
"So I think the equities vastly are in favor of allowing the amendment. [¶ ] . . . [¶ ] So I am going to go ahead and grant the motion." Kandola's counsel requested the court to amend the judgment nunc pro tunc.
Counsel stated, "Your Honor, the reason for the request that it be amended nunc pro tunc is based on the fraud that was perpetrated on me and my client and the Court in not revealing that a probate was [eventually] filed" thereby "[preventing me or my client from the opportunity to amend the pleadings so that the proper defendant would have been [timely] named." Counsel added: "And so, we are asking for nunc pro tunc to the time of entry ofjudgment as a - as a remedy for the false representations and failures to disclose that were perpetrated by [the] responding party." Counsel concluded: "And we think that the judgment would have been [properly] entered had we been in possession of all of the information that wasn't given to us at that time in that manner." The court ruled: "I'm going to go ahead and grant the motion to add that party as the party that should have been included initially. I guess it's considered nunc pro tunc. It doesn't change the date of the judgment, which is typically what a nunc pro tunc does. But the addition will relate back to the same date as the date of the judgment."
Fateh Sahota, Bhupinder Sahota's counsel, requested a statement of decision. The trial court denied the request, noting "I don't believe it's necessary. I've stated the reasons for the decision on the record. There is a court reporter. So, I don't believe anything more is required at this point in time."
As for Bhupinder Sahota's motion to amend the judgment by striking from the judgment Bhupinder Sahota in her capacity as successor in interest, the trial court entered an order denying that motion on June 2, 2022. Furthermore, on July 15, 2022, the trial court entered an order denying Bhupinder Sahota's motion to set aside the judgment against her as successor in interest to Sohan Sahota under Code of Civil Procedure section 473, subdivision (d).
Upon completion of the trial court proceedings, the purpose of the limited remand from this court was fulfilled. Accordingly, on July 26, 2022, this court issued an order lifting the stay of appellate proceedings that had been in effect for the duration of the limited remand to the trial court. On February 8, 2023, this court issued its opinion in the prior appeal from the judgment, affirming the judgment in its entirety. (See Kandola I, Case No. F079660, unpub. opn., filed Feb. 8, 2023.)
Bhupinder Sahota subsequently filed the instant appeal from the trial court's rulings in the proceedings that were conducted when the case was remanded for the limited purposes discussed above, during the pendency of Kandola I.
DISCUSSION
I. The Trial Court Properly Added Bhupinder Sahota, in Her Capacity as Personal Representative/Executor of Sohan Sahota's Estate, to the Judgment
A. Standard of Review
"The trial court's decision to amend a judgment to add a judgment debtor is reviewed for abuse of discretion." (Favila v. Pasquarella (2021) 65 Cal.App.5th 934, 943 (Favila).)" '[I]n 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.'" (Favila at p. 943.) "Factual findings necessary to the court's decision are reviewed to determine whether they are supported by substantial evidence." (Ibid.)
B. Analysis
Code of Civil Procedure section 377.41 states: "On motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing claims is first made."
Code of Civil Procedure section 187 provides: "When jurisdiction is, by the Constitution or this Code, or by any other 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 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 may appear most conformable to the spirit of this Code." "Pursuant to its authority under section 187, the trial court may amend a judgment to add a judgment debtor." (Favila, supra, 65 Cal.App.5th at p. 942.)
" '" 'As a general rule, "a court may amend its judgment at any time so that the judgment will properly designate the real defendants." . . . Judgments may be amended to add additional judgment debtors on the ground that a person or entity is the alter ego of the original judgment debtor ... . "Amendment of a judgment to add an alter ego 'is an equitable procedure based on the theory that the court is not amending the judgment to add a new defendant but is merely inserting the correct name of the real defendant. '" '" [Citation.] In addition, even if all the formal elements necessary to establish alter ego liability are not present, an unnamed party may be included as a judgment debtor if "the equities overwhelmingly favor" the amendment and it is necessary to prevent an injustice.'" (Favila, supra, 65 Cal.App. 5th at p. 942; see Carr v. Branabey's Hotel Corp. (1994) 23 Cal.App.4th 14, 20-21 (Carr) [same]; In re Levander (9th Cir. 1999) 180 F.3d 1114, 1122 (Levander) [same (applying Cal. law)]; Carolina Casualty Ins. Co. v. L.M. Ross Law Group, LLP (2012) 212 Cal.App.4th 1181, 1188-1189, 1193-1194 [trial court properly amended, on equitable grounds, legal malpractice insurer's contribution judgment to add attorney as judgment debtor where law firm dissolved and ceased to operate prior to filing of malpractice action, and attorney actively participated in and controlled litigation, entered into settlement with insurer knowing firm was dissolved and had no funds, and was only equity partner in firm].)
Kandola argues:
"Here, the equities overwhelmingly favored the requested amendment and failure to amend would have resulted in a clear injustice. There is no dispute that, at the time judgment was entered in this action, Bhupinder Sahota, as personal representative/executor of the Estate of Decedent Sohan Singh Sahota, was a proper judgment debtor. It is also clear the only reason Bhupinder Sahota, as personal representative/executor of the estate of decedent Sohan Singh Sahota, was not named in the judgment is because of the untruthful statements made under oath and deceptive conduct by Bhupinder Sahota and Fateh Sahota....
"There is also no dispute that no prejudice resulted because at all relevant times Bhupinder Sahota was involved in the action and Fateh Sahota, her daughter, has been the trial and appellate attorney in the action. By adding to the judgment Bhupinder Sahota in her capacity as personal representative/executor of the estate of decedent Sohan Singh Sahota, the only thing that changed was the capacity of Bhupinder Sahota."
We conclude Kandola's arguments have merit and affirm the trial court's order adding Bhupinder Kaur Sahota, in her capacity as personal representative/executor of the estate of Sohan Singh Sahota, to the judgment, and relating this addition back to the date of issuance of the judgment.
II. The Trial Court Was Not Required to Make an Alter Ego Finding
Bhupinder Sahota argues the trial court erred in amending the judgment because Kandola was required to, but did not, establish that Bhupinder Sahota, in her capacity as personal representative/executor was the alter ego of either the decedent or his successor in interest. However, in relying on Favila, Kandola did not pursue in the trial court, an alter ego theory for amendment. (Favila, supra, 65 Cal.App.5th at p. 942.) As addressed above, Favila clarifies that even absent elements establishing alter ego liability," 'an unnamed party may be included as a judgment debtor if "the equities overwhelmingly favor" the amendment and it is necessary to prevent an injustice.'" (Ibid.)
Carr, supra, 23 Cal.App.4th at pages 20-21 is instructive. In Carr, Cathy Carr, an employee of Barnabey's Hotel, sued Barnabey's Hotel Corporation (Barnabey's) and the hotel's food and beverage director, for sex discrimination and pregnancy discrimination, among other claims. After judgment was entered in Carr's favor, it came to light that the hotel was actually owned and operated by Peppercorn Ltd. No. 9 (Peppercorn). Barnabey's Hotel Corporation had stopped doing business several years ago, had no assets and no source of income, and had never held title to the hotel. The trial court granted Carr's motion to amend the judgment to add Peppercorn as a defendant. The trial court ruled that" 'the lawsuit was tried on the merits treating Barnabey's as plaintiff's de-jure employer when in fact legally it was only de-facto employer. Peppercorn was Barnabey's principal in the situation involving plaintiff and for all intents and purposes participated fully in the trial on the merits.'" (Id. at pp. 18, 20.)
Peppercorn and Barnabey's appealed. The Carr court affirmed, stating "the [trial] court had the authority to amend the judgment to add a judgment debtor" and that "[t]he decision to grant an amendment in such circumstances lies in the sound discretion of the trial court." (Carr, supra, 23 Cal.App.4th at p. 20.) Carr further noted that" '[t]he greatest liberality is to be encouraged in the allowance of such amendments in order to see that justice is done,'" and observed, as to the matter at hand, that "[j]ustice was obviously served by the amendment." (Ibid.) Carr explained:
"It is not too much to say that Peppercorn's conduct approached a fraud on the court. Carr sued the right party under the wrong name, a fact which must have been clear to the defense from the inception of the litigation. Yet, nothing was said about the mistake in any deposition, motion, or other proceeding. Barnabey's [Hotel Corporation] never sought to exonerate itself on the basis that it was not Carr's employer.... This conduct was not rewarded in the trial court and will not be rewarded on appeal. [¶ ] . [¶ ]
"The same lawyer represented Barnabey's Hotel Corporation and Peppercorn. Although the record does not tell us who paid for the defense, we know that Barnabey's [Hotel Corporation], in whose name the defense was conducted, had no assets. Notably, the defense which was most obviously available to Barnabey's [Hotel Corporation], that it was a stranger to the action, was never raised. Instead, the case was fully defended, on the merits, based on the defenses available to the entity which employed Carr.... There was no injustice, but rather manifest equity, in the [trial] court's ruling." (Carr, supra, 23 Cal.App.4th at pp. 20-21.)
The Carr court acknowledged that Peppercorn was not an alter ego of Barnabey's Hotel Corporation. (Carr, supra, 23 Cal.App.4th at p. 21.) However, Carr clarified the trial court had the authority to amend the judgment despite the fact that the formal requirements for alter ego liability were not present. Carr reasoned that "[a]mendment of a judgment to add an alter ego 'is an equitable procedure based on the theory that the court is not amending the judgment to add a new defendant but is merely inserting the correct name of the real defendant. [Citations.] "Such a procedure is an appropriate and complete method by which to bind new . defendants where it can be demonstrated that . they in fact had control of the previous litigation, and thus were virtually represented in the lawsuit." '" (Id. at pp. 21-22.) Given the record in Carr, the Carr court concluded it was appropriate to utilize an equitable procedure to amend the judgment there notwithstanding the lack of alter ego liability; indeed," 'the equities overwhelmingly favor[ed]'" authorizing the amendment. (Id. at pp. 22-23.)
Carr pointed out that in Carr "the named defendants conducted themselves as though they were the proper defendants, then sought to use Carr's mistake to shield the entity which should have been named." (Carr, supra, 23 Cal.App.4th at pp. 22-23.) Carr observed:"' [I]t was entirely reasonable, under the circumstances of this case for [plaintiff's] counsel to have relied on the acts and statements of defendants in concluding that he had the proper parties. Moreover, we are more concerned with balancing the equities than with highlighting the negligence of . counsel. When all the circumstances are considered, the equities overwhelmingly favor' affirming the trial court on this issue." (Id. at p. 23.) Carr concluded: "The [trial court's] ruling allowing an amendment resulted in no prejudice to Peppercorn. A reversal of that ruling would work an injustice, and we decline to make such an order." (Ibid.)
Similarly, in Levander, the judgment debtor (a corporation) led creditors and the court to believe it was the proper party with assets, "when all along, the [judgment debtor] knew and did not disclose to the court, that [another entity, a partnership,] had control of the assets." (Levander, supra, 180 F.3d at p. 1122.) Levander held the trial court properly added the other entity, the partnership, to the judgment without making an alter ego finding, because "the same group of individuals" headed up both the corporation (the original judgment debtor) and the partnership, whereby the added party could be said to have controlled the litigation. (Id. at pp. 1122, 1123.)
Levander cited Carr, supra, 23 Cal.App.4th 14, and explained: "The Carr court looked to the 'equitable principles regarding alter ego' and concluded that although the added judgment-debtor did not meet the formal requirements for alter ego liability, it nevertheless fit within the theory underlying amendment of a judgment based on alter ego liability. That is, 'the court is not amending the judgment to add a new defendant but is merely inserting the correct name of the real defendant.' [Citation.] The court then reasoned that by not allowing amendment due to the absence of a finding of alter ego would 'work an injustice.'" (Levander at p. 1122.) Levander concluded: "Therefore, under the authority of Carr, a finding that the Partnership was the alter ego of the Corporation was not required to add the Partnership as a judgment-debtor." (Ibid.) The Levander court further noted: "We recognize that there is California case authority to the contrary. See Triplett [v Farmers Ins. Exchange (1994)] 24 Cal.App.4th 1415[, 1421] (not allowing amendment without finding of alter ego). We believe, however, that Carr is the better reasoned case." (Levander at p. 1122, fn. 11.) We agree with Levander and conclude that Carr is applicable here.
Kandola argues that Bhupinder Sahota's contentions regarding the necessity of an alter ego finding here are meritless. Specifically, Kandola argues: "But for Bhupinder Sahota's deceptive and fraudulent conduct, the correct party would have been substituted into the case before judgment was entered. Such conduct should not be rewarded by this Court. Amending the judgment resulted in no prejudice and failure to amend would have resulted in an injustice and condoned Bhupinder Sahota's fraudulent conduct aimed at both Kandola and the court." We agree with Kandola that the trial court's amendment of the judgment was proper given that Bhupinder Sahota provided declarations to the trial court indicating she was successor in interest when she was not. Furthermore, Bhupinder Sahota did not inform Kandola or the trial court when she was named the personal representative/executor of the estate of Sohan Sahota upon opening of the probate of the latter's will. Rather, Bhupinder Sahota sat by while the matter proceeded against her in her capacity as successor in interest and judgment was entered against her in that same capacity. Finally, since Bhupinder Sahota was the defendant at the trial-the amendment merely added Bhupinder Sahota in a different capacity-there is no question that she controlled the litigation.
Bhupinder Sahota contends the declarations provided were tailored to her cross-complaint rather than to Kandola's complaint, each of which pleadings pertained to distinct properties. At oral argument, Bhupinder Sahota's counsel asserted that Bhupinder Sahota was Sohan Sahota's successor in interest for purposes of the cross-complaint because, upon Sohan Sahota's death, she individually assumed ownership of the peach orchards that were the subject of the cross-claims. However, counsel conceded there was no evidence in the record to support the assertion that Bhupinder Sahota individually assumed ownership of the peach orchards on Sohan Sahota's death. In fact, there is no indication in the record that Bhupinder Sahota made any reference, in the trial court, that she had individually assumed ownership of the peach orchards. Her assertion to this effect on appeal, moreover, flies in the face of the probate court's finding that the beneficiary of the cross-claims was the Sohan Singh Sahota and Bhupinder Kaur Sahota Revocable Trust, not Bhupinder Sahota individually. As for the amended declaration filed following the death of Sohan Sahota by Bhupinder Sahota asserting she was successor in interest to the deceased, she asserted therein that no other person had a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding. There is no indication in the record that the declarations specified that Bhupinder Sahota was only successor in interest for purposes of the cross-claims. On the contrary, the implication of the declarations was that Bhupinder Sahota was the beneficiary of Sohan Sahota's estate and consequently was his successor in interest for purposes of the entire action. Most importantly, Bhupinder Sahota said and did nothing as Kandola amended his pleadings to name her, in her capacity as successor in interest, as the defendant in this matter. We conclude that Bhupinder Sahota's unsubstantiated and revisionist assertions that her declarations applied only to her cross-claims are unavailing.
Bhupinder Sahota argues the judgment cannot be amended to add her in her capacity as personal representative because Kandola did not comply with the requirements of Probate Code section 9370, which requires a party in an action pending against the decedent to file a claim before the matter can be continued against the decedent's personal representative. This argument is, however, unavailing, because Bhupinder Sahota did not give Kandola requisite and timely notice of her appointment as personal representative and the administration of Sohan Sahota's estate. (See Probate Code section 9050.)
III. The Trial Court Properly Related the Addition to the Judgment, of Bhupinder Kaur Sahota in Her Capacity as Personal Representative/Executor, Back to the Date of Issuance of the Judgment
Bhupinder Sahota notes she resigned as personal representative/executor of the decedent's estate on June 17, 2021, after the probate court issued an order to show cause to her. Thereafter, on September 2, 2021, Surinder Kaur Virk was appointed as the executor and personal representative of the decedent's estate. Bhupinder Sahota challenges the trial court's addition of Bhupinder Sahota, in her capacity as personal representative/executor of the estate, to the judgment on grounds the court improperly related the addition back to the date of issuance of the judgment. Bhupinder Sahota further argues the court erred in amending the judgment to add her in her capacity as personal representative/executor because, at the time the amendment was authorized, she was no longer the personal representative/executor. We reject Bhupinder Sahota's contentions.
Bhupinder Sahota cites Hamilton v. Laine (1997) 57 Cal.App.4th 885, 891 (Hamilton) for the proposition that the court erred in amending the judgment nunc pro tunc. Hamilton explains: "[I]t is not proper to amend an order nunc pro tunc to correct judicial inadvertence, omission, oversight or error, or to show what the court might or should have done as distinguished from what it actually did. An order made nunc pro tunc should correct clerical error by placing on the record what was actually decided by the court but was incorrectly recorded. It may not be used as a vehicle to review an order for legal or judicial error by 'correcting' the order in order to enter a new one." (Id. at p. 891.) Hamilton, however, further clarifies:" 'Although grounds may exist for opening, modifying, or vacating the judgment itself, in the absence of such grounds, the court may not, under the guise of an amendment of its records, revise or change the judgment in substance and have such amended judgment entered nunc pro tunc.'" (Ibid., boldface added.) Here, as discussed above, the trial court properly modified the judgment, based on its authority under Code of Civil Procedure section 187, to add Bhupinder Sahota, in her capacity as personal representative/executor to the judgment. Therefore, Bhupinder Sahota's challenge to the court's ruling relating the addition of Bhupinder Sahota, in her capacity as personal representative/executor, back to the date of issuance of the judgment, fails.
To the extent Bhupinder Sahota argues the court erred by adding a former personal representative (that is, herself) as a party when she was no longer the personal representative, this argument is also unavailing. Kandola's attorney explained at the motion hearing: "Your Honor, we - we have not asked that the judgment be amended to add the current personal representative who succeeded or replaced Bhupinder following her resignation because her identity was completely unknown to us at [the time the case went to trial]." In short, the purpose of the motion to amend was to add to the judgment the person who was the personal representative at the time the judgment was entered on March 26, 2019, and the trial court properly did just that. There is no dispute Bhupinder Sahota was appointed as the personal representative of Sohan Sahota's estate on October 17, 2018, over a month before the trial in this case commenced.
Kandola's counsel further stated, in this context: "Your Honor, the reason for the request that [the judgment] be amended nunc pro tunc is based on the fraud that was perpetrated on me and my client and the Court in not revealing that a probate was filed. [¶ ] • - [¶ ] Preventing me or my client from the opportunity to amend the pleadings so that the proper defendant would have been named. And so, we are asking for nunc pro tunc to the time of entry of judgment as a - as a remedy for the false representations and failures to disclose that were perpetrated by responding party. [¶ ] And we think that the judgment would have been [correctly] entered had we been in possession of all of the information that wasn't given to us at that time in that manner."
Bhupinder Sahota also contends that Kandola's service of his motion to amend the judgment on the current personal representative of Sohan Sahota's estate, that is, Surinder Kaur Virk, was faulty in that Kandola served an attorney who formerly represented Virk, rather than Virk's new attorney. However, Bhupinder Sahota does not develop her argument or cite any legal authorities to clarify the scope and import of her argument. Nor does she indicate what, if any, prejudice arose from Kandola's failure to serve Virk's current attorney. We will therefore not address this argument further.
IV. The Lack of a Statement of Decision Was Harmless Here
Bhupinder Sahota contends that the trial court erred in failing to issue a statement of decision after she "timely filed and served a Request for Statement of Decision identifying material and controverted issues for which she sought the factual and legal basis upon which the court was granting Respondent's motion to amend to add a new judgment debtor[,] in response to the trial court's March 11, 2022 tentative decision."
The trial court, upon rendering its final decision from the bench on March 14, 2022, had denied Bhupinder Sahota's request for a statement of decision, noting "I don't believe it's necessary. I've stated the reasons for the decision on the record. There is a court reporter. So, I don't believe anything more is required at this point in time."
Bhupinder Sahota's conclusory allegation of error as to the trial court's denial of her request for a statement of decision is unavailing. Bhupinder Sahota has not established that her request for a statement of decision was timely or that the trial court was required to issue a statement of decision under the circumstances. More importantly, she has not established that the court's failure to issue a statement of decision was prejudicial here. (See F.P. v. Monier (2017) 3 Cal.5th 1099, 1108-1109 [failure to issue a written statement of decision is subject to harmless error analysis].) Bhupinder Sahota's conclusory assertions are insufficient and unpersuasive.
V. The Trial Court Did Not Abuse its Discretion in Denying Bhupinder Sahota's Motion(s) to Set Aside/Vacate the Judgment Against Her in Her Capacity as Successor in Interest
Bhupinder Sahota asserts the trial court erred in refusing to "strike, vacate, or set aside the judgment" against her in her capacity as successor in interest, because the judgment is "void on its face." Her argument is convoluted and difficult to decipher. Kandola responds: "[E]ven if the judgment against Bhupinder Sahota as a successor in interest were improper or void, the judgment is immune from challenge based on Bhupinder Sahota's under oath statements and consent to proceeding through trial as successor in interest." We conclude Kandola has the better argument.
In support of his argument, Kandola cites to Diaz v. Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190 (Diaz) and In re Griffin (1967) 67 Cal.2d 343 (Griffin). Diaz explains: "A judgment or order that would be void in the abstract- because the court acted in excess of its jurisdiction when issuing it-is nonetheless immune from challenge if consented to. 'When, as here, the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court's power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction.' [Citation.] It is only the court's fundamental lack ofjurisdiction-i.e., 'an entire absence of power to hear or determine the case, an absence of authority over the subject matter or parties' [citation], which cannot be remedied by consent." (Diaz, supra, at p. 1205, fn. 4.)
Griffin similarly clarifies that when the trial court has jurisdiction of the subject, a party who seeks or consents to action beyond the court's power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction. (Griffin, supra, at p. 347.) "Whether he shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy. A litigant who has stipulated to a procedure in excess ofjurisdiction may be estopped to question it when 'To hold otherwise would permit the parties to trifle with the courts.'" (Id. at p. 348.)
Kandola argues:
"Here, there is no dispute the trial court had fundamental jurisdiction over the subject of this case. There is also no dispute Bhupinder Sahota represented to the trial court under oath on at least two occasions she was Sohan Sahota's successor in interest and, as such, succeeded to his interest in this action. (Citation.) The trial court substituted into this case Bhupinder Sahota as a successor in interest based on her under oath representations. (Citation.) Trial then commenced and judgment was entered against Bhupinder Sahota as a successor in interest. (Citation.) Even though Bhupinder Sahota was appointed the personal representative/executor over one month before trial (citation), at no time prior to entry of judgment did Bhupinder Sahota notify the court she was the executor and not a successor in interest to Sohan Sahota."
Kandola contends that under Diaz and Griffin, "the judgment is immune from challenge based on Bhupinder Sahota's under oath statements and consent to proceeding through trial as successor in interest." We agree.
VI. Miscellaneous Claims
To the extent Bhupinder Sahota and Kandola make additional arguments in their respective briefs, we either find they lack merit or find it unnecessary to address them.
DISPOSITION
The trial court's order amending the judgment to add to the judgment, Bhupinder Kaur Sahota, in her capacity as personal representative of the estate of Sohan Singh Sahota, is affirmed. Kandola is awarded costs on appeal.
WE CONCUR: POOCHIGIAN, Acting P. J., SNAUFFER, J.