Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Ct. No. 07CC10078, David T. McEachen, Judge.
Fred S. Pardes for Defendants, Cross complainants, and Appellants.
David Chin, in pro. per., for Plaintiff, Cross defendant, and Respondent David Chin.
OPINION
O’LEARY, ACTING P. J.
Charles E. Wright and Property Guard International, Inc. (PGI), appeal from the judgment after a jury trial in this action arising out of the sale of the business and assets of PGI to corporations owned by David Chin. Wright and PGI were awarded $181,396, in damages against Chin’s corporations for breach of contract, but the jury found no contract liability on Chin’s part. Additionally, the jury awarded one of the corporations $33,500 in damages against Wright for conversion. On appeal, Wright and PGI raise numerous claims of error, none of which have merit, and we affirm the judgment.
FACTS
Trial Evidence
Wright started and owned PGI, a company involved in disaster preparedness and mitigation services. U.S. BioDefense, Inc. (USBD), is a company owned by Chin. The majority of USBD shares were owned by Chin individually, but another Chin owned company called Equity Solutions also owned USBD shares.
Wright and Chin met in June 2006, when Chin expressed interest in acquiring PGI. PGI was not in good shape financially. It had many outstanding liabilities, including notes for loans made by Wright and several of his key employees. Additionally, at the time, Wright was under a great deal of stress because of his own health problems and concerns about a dying relative in England. It is undisputed all written documents concerning the transaction were prepared by Chin, who is not an attorney.
To control the extent to which USBD would become saddled with PGI’s outstanding liabilities, it was agreed the sale of PGI would be via a new company. That company would initially be owned by Wright, PGI’s assets would be transferred to it, and then USBD would acquire the new company from Wright. Wright testified he was to retain the name PGI and ownership of the company PGI. Wright had previously incorporated a company in Nevada, now inactive, called “Emergency Defense Services” and told Chin he could use that name. Chin prepared and filed the papers to incorporate a California corporation called Emergency Defense Services (EDS), owned by Wright, to be the company through which the transaction took place. Chin assured Wright money was no object and promised that once he acquired it, he would eventually capitalize EDS with at least $200,000.
There were several aspects of Wright and Chin’s agreement regarding the sale of the business of PGI. There was to be a stock purchase agreement, whereby Wright would sell all his shares in the newly formed EDS to USBD for $25,000. Wright was to get 50,000 shares of USBD. It was agreed EDS would purchase all PGI’s disaster supplies and equipment; Wright prepared inventories setting a value of $202,641 on PGI’s supplies (an amount Wright later reduced to $97,000) and $87,901 on its office equipment at the time of sale. There was an agreement USBD would pay off certain outstanding liabilities of PGI (notes and loans from employees). There was also to be a consulting agreement between Wright and EDS, whereby Wright would provide consulting services to EDS for six years, and he would be paid $3,000 a month plus be provided health insurance.
Chin prepared a stock purchase agreement between USBD, Wright, and EDS, whereby Wright sold all his EDS shares to USBD for $25,000. Chin was not a party to the stock purchase agreement but signed it as chief executive officer of USBD. The stock purchase agreement was executed by all parties on August 7, 2006, and Wright received the $25,000 payment. Thereafter, EDS took control of all PGI’s supplies, equipment, and customer lists.
With regard to Wright’s future involvement with EDS, Chin first prepared a written document called “employment agreement” to be between USBD and Wright, which Wright apparently rejected. Chin then prepared a written document called a “consulting agreement” between EDS and Wright that he sent to Wright. The consulting agreement provided for Wright to provide consulting services to EDS for six years commencing upon the date the agreement was executed, and for Wright to be paid $3,000 a month for his consulting services plus medical insurance. It is undisputed the consulting agreement was never signed by Wright or Chin. Wright testified that although the proposed consulting agreement reflected the major terms they had agreed upon, he was unwilling to sign the consulting agreement because Chin would not sign it. Chin testified he would not sign the consulting agreement because there were still terms to be worked out-in particular, the draft agreement required Wright to exercise his “best efforts” on behalf of EDS as “reasonably needed,” but Wright still had not explained to Chin exactly what he was going to be doing for EDS.
Over the next 11 months, several payments were made to Wright but many were not. EDS paid Wright $3,000 a month for consulting services and paid his health insurance premiums for those 11 months. A $44,500 check was written to Wright by Equity Solutions (a Chin owned company that owned some USBD stock), and was used by Wright to pay off some of PGI’s outstanding liabilities. Some other payments were also made. But by July 2007, Wright had ceased doing any consulting work for EDS, and he had received no further payments. He never received the 50,000 USBD shares he had been promised. His repeated demands to Chin for the remaining payments for the sale of PGI’s business to USBD went ignored.
EDS had a bank account at Wells Fargo Bank on which Wright was a signer as an officer of EDS. In September 2007, Wright withdrew $33,500 in cash from EDS’s bank account. Wright testified he knew he was not an owner of the funds in the EDS account. Nonetheless, he believed USBD or EDS still owed him money, although he had no judgment against either. Wright had no records of what he did with the money, but he testified he used it to pay off PGI liabilities that remained unpaid by EDS. In 2008, after this litigation commenced, EDS issued a 2007 tax form 1099 to Wright for $57,500, which included the consulting fees Wright had been paid and the $33,500 he withdrew from the EDS bank account.
At trial, Wright testified he was still owed a total of $181,396 for PGI’s inventory and supplies, and to cover various notes and liabilities EDS assumed from PGI. Wright also claimed he was still owed for the remaining five years on the unsigned written consulting agreement-$183,000 in consulting fees and $66,917 for health insurance coverage.
Wright testified to his emotional distress over the events. When Chin came along, PGI was in financial distress, and Wright and his family were under stress as well. Wright would never have sold his business had it not been for Chin’s promises he would take care of Wright and his wife, and that money was no object when it came to what Chin was willing to put into EDS.
Wright agreed he had no contractual relationship with Chin individually. All payments made to him were from the corporations-USBD, EDS, or Equity Solutions. Nonetheless, Wright testified he considered Chin and Chin’s companies (USBD, Equity Solutions, and EDS) to be the same-Wright could not tell the difference between them. Chin testified he never commingled corporate funds with personal funds-he did not use his corporate accounts to pay personal expenses or vice versa.
Pleadings & Pre Trial Events
In September 2007, just a few days after Wright withdrew the funds from EDS’s bank account, EDS filed a complaint against Wright for conversion. It sought recovery of the $33,500 taken by Wright from the EDS bank account.
Wright and PGI (hereafter collectively and in the singular Wright unless otherwise indicated) filed a cross complaint against EDS, USBD, and Chin. The cross complaint contained a cause of action for breach of contract against all defendants based on four separate agreements: (1) the unsigned consulting agreement; (2) an agreement to assume notes and liabilities of PGI; (3) the agreement to purchase PGI’s inventory and supplies; and (4) the agreement to purchase PGI’s equipment. As to Chin, Wright alleged liability on the contracts on an alter ego theory, i.e., the corporations were mere shams, run for Chin’s personal gain, such that the corporate veil should be pierced and Chin and the corporations treated as one. The cross complaint also contained causes of action against Chin and/or the corporations for fraud, negligent misrepresentation, negligent and intentional interference with prospective economic advantage, unfair business practices, trade name infringement and trade libel, slander, negligent and intentional infliction of emotional distress, and it sought injunctive relief and rescission of the alleged contracts.
Trial, Judgment & Post Judgment
A jury trial on the complaint and cross complaint began in November 2008. At the beginning of trial, the court and counsel discussed the ongoing discovery disputes. The court and counsel discussed Wright’s alter ego theory as to Chin. The court asked Wright if he envisioned the alter ego issues being decided by the jury or the court. Counsel replied, “I expect and I will be asking the court to make such a determination.” At the conclusion of EDS’s case on its complaint, EDS moved for directed verdict on its conversion claim. The trial court denied the motion.
In discussing proposed jury instructions, the court rejected a series of special instructions Wright proposed on alter ego liability. Counsel for Wright argued the issue of Chin’s alter ego liability was a factual question, and thus one for the jury. The trial court explained that although it was a factual question, because it was an equitable theory, the issue could be decided by the trial court or the jury. Furthermore, the instructions Wright had offered were unduly complicated and confusing.
At the close of Wright’s case, EDS, USBD, and Chin moved for nonsuit on all causes of action in the cross complaint. As to the breach of contract cause of action, the court granted the motion for nonsuit only as to the consulting agreement, concluding it was barred by the statute of frauds. It granted nonsuit on all other causes of action in the cross complaint. As to Wright’s claim of alter ego liability of Chin on the contracts, the court granted nonsuit without prejudice. It found there was not sufficient evidence presented by Wright at trial to support alter ego liability and thus it was inappropriate to submit the issue to the jury. But, the court advised Wright, he could have another “stab” at the issue because if the jury returned a judgment against USBD and/or EDS for breach of contract, Wright could seek to impose liability on Chin via a post judgment motion. The court further explained it would leave open any issue regarding Wright’s ability to seek additional discovery post judgment concerning Chin’s alter ego liability for a judgment against the corporations.
The jury returned a series of special verdicts. On EDS’s conversion complaint, the jury found Wright intentionally took money belong to EDS without its consent, and awarded EDS $33,500 in damages. As to Wright’s cross complaint, the jury found no contract existed between Wright and Chin. As to USBD, the jury found it had breached an agreement to assume notes and liabilities, awarding Wright $63,396 in damages, breached an agreement to purchase PGI’s inventory and supplies, awarding $68,000 in damages, and breached an agreement to purchase PGI’s equipment, awarding no damages. As to EDS, the jury found it breached an agreement to purchase PGI’s inventory and supplies, awarding Wright $50,000 in damages.
After the jury returned its special verdicts, the trial court again explained to Wright’s counsel the matter of Chin’s alleged alter ego liability was to be handled as a post judgment law and motion matter. On December 18, 2008, judgment was entered in accordance with the special verdicts, i.e., EDS was awarded $33,500 against Wright on the complaint; Wright and PGI were awarded $131,396 against USBD and $50,000 against EDS on the cross complaint.
Wright then filed a motion for judgment notwithstanding the verdict (JNOV) as to the breach of contract cause of action against Chin. He argued the court should now find Chin to be the alter ego of the corporations, pierce the corporate veil, and find Chin liable for the corporations’ liabilities on the contracts. The court denied the motion. In its minute order, the court reminded Wright it had previously granted nonsuit on the alter ego claim without prejudice and thus it was never submitted to the jury. In his moving papers, “[Wright] even notes that the alter ego issues were not submitted to the jury and thus there was no verdict in regards to alter ego that was or was not supported by substantial evidence. A motion for JNOV requires a verdict.... In addition, [Wright has] not presented admissible evidence to establish alter ego liability as to... Chin at this time.” The court also denied a motion for JNOV filed by USBD and EDS. Wright filed an appeal from the judgment.
DISCUSSION
Wright’s opening brief contains 15 numbered argument headings. Upon close review, his contentions can be grouped together as four: (1) the trial court erred in granting nonsuit on the breach of contract claim as to the consulting agreement; (2) the trial court erred in granting nonsuit on the fraud cause of action; (3) the trial court erred by refusing to impose liability on Chin on an alter ego theory; and (4) the trial court erred in its handling of various defenses Wright sought to raise as to EDS’s conversion claim against him.
1. Nonsuit as to Consulting Agreement: Statute of Frauds
Wright contends the court erred by granting nonsuit on the breach of contract cause of action as to the consulting agreement. We disagree.
After the plaintiff has completed the presentation of his case, the defendant may move for nonsuit. (Code Civ. Proc., § 581c, subd. (a).) The trial court will grant the motion if it determines plaintiff’s evidence is insufficient to support a jury verdict in his favor. (Stonegate Homeowners Assn. v. Staben (2006) 144 Cal.App.4th 740, 746.) “Because a successful nonsuit motion precludes submission of plaintiff’s case to the jury, courts grant motions for nonsuit only under very limited circumstances. [Citation.] A court may not grant a motion for nonsuit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff’s favor. [Citations.]” (Claxton v. Atlantic Richfield Co. (2003) 108 Cal.App.4th 327, 334.) When we review the granting of a motion for nonsuit, we must view the evidence in the light most favorable to the plaintiff, resolving all presumptions, inferences, and doubts in his favor. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) After having done so, we will not sustain the judgment for the defendant unless it is required as a matter of law. (Ibid.)
Wright’s complaint contained a single breach of contract cause of action that alleged four separate agreements related to the transfer of PGI’s business to EDS and USBD: (1) the six year consulting agreement; (2) an agreement to assume notes and liabilities of PGI; (3) the agreement to purchase PGI’s inventory and supplies; and (4) the agreement to purchase PGI’s equipment. Wright alleged Chin, EDS, and USBD breached the consulting agreement when EDS stopped paying the monthly consulting fee and health insurance premiums after 11 months in July 2007. There was no evidence that after that time Wright performed any work for EDS.
The trial court granted nonsuit on the breach of contract claim as to the consulting agreement because it violated the statute of frauds. An agreement which by its terms cannot be performed within one year comes within the statute of frauds and is unenforceable unless it is in writing and signed by the party to be charged. (Civ. Code, § 1624, subd. (a); Munoz v. Kaiser Steel Corp. (1984) 156 Cal.App.3d 965, 971.) It is undisputed the written consulting agreement was not signed by any party. Wright argues, nonetheless, the agreement is enforceable.
Wright’s first two contentions are essentially the same: the statute of frauds is inapplicable to a fully executed agreement and full performance of the contract by one side estopps the other from raising statute of frauds as a defense. He cites familiar rules. “Where a contract has been fully performed by one party and nothing remains to be done except the payment of money by the other party, the statute of frauds is inapplicable. [Citations.]” (Blaustein v. Burton (1970) 9 Cal.App.3d 161, 185; see also Dutton v. Interstate Investment Corp. (1941) 19 Cal.2d 65, 70 [“the finding of the trial court that Dutton had fully performed all of his obligations under the contract operates to remove the bar of the statute [of frauds]”]; Dean v. Davis (1946) 73 Cal.App.2d 166, 168 [“The statute of frauds has no application to an executed agreement”]; Marr v. Postal Union Life Ins. Co. (1940) 40 Cal.App.2d 673, 679 [“Where... there has been full performance upon the part of the party seeking to enforce the contract, the doctrine of estoppel arises”].)
Whether circumstances amount to an estoppel is a nonjury question of fact to be determined by the trial court in accordance with applicable law. (Old Republic Ins. Co. v. FSR Brokerage, Inc. (2000) 80 Cal.App.4th 666, 679; DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 61.) Whether to apply estoppel in a given case rests in the sound discretion of the trial court. (See People ex rel. Sneddon v. Torch Energy Services, Inc. (2002) 102 Cal.App.4th 181, 189.) Wright argues he had fully performed his side of the transaction-he transferred PGI’s assets to EDS and USBD-and all that remained to be done was the payment of money, i.e., the remaining five years worth of consulting fees and health insurance premiums. Wright in essence contends the consulting agreement was not really an agreement for Wright to provide future services-rather it represented an agreement that on top of other sums agreed to for the sale of the business, he would receive an additional $216,000 for the sale of PGI to USBD, spread out over six years in the form of $3,000 a month in consulting fees and an additional $78,984, in the form of six years worth of health insurance premiums of $1,097 per month. The consulting agreement was simply a device for the timing and form of the payment of the consideration. Thus, because he had fully performed his side of the deal (transfer of assets), USBD and EDS cannot be allowed to renege on their side.
But we have to look at how this case was pled and tried. Wright pled four separate agreements, albeit all related to the sale of his business. Part of the transaction was that Wright would remain employed by EDS as a consultant for six years. Wright performed consulting services for 11 months, at which point his affiliation with EDS ceased. The consulting agreement by its terms could not be performed within one year, and thus falls within the statute of frauds. (See Munoz v. Kaiser Steel Corp. (1984) 156 Cal.App.3d 965, 979 [employment agreement contract for minimum of three years within statute of frauds].) We cannot say the court abused its discretion in refusing to apply the estoppel doctrine to preclude application of the statute of frauds.
Wright separately argues USBD, EDS, and Chin should be estopped to assert the statute of frauds as to the consulting agreement because of Chin’s conduct. He drafted the written consulting agreement, represented he had sufficient financial resources to pay, and promised to take care of Wright. But this is not a case in which it is claimed Wright was somehow duped into believing Chin was going to sign the written agreement and changed his position on such representations. Wright knew from the outset that Chin had not signed the written consulting agreement. Wright testified he too refused to sign the written agreement. (See e.g., Dougherty v. California Kettleman, etc. (1937) 9 Cal.2d 58, 81 [estoppel to assert statute of frauds where one party’s performance induced by other’s representations he would sign the contract].)
Wright’s remaining arguments are that the parties had agreed on the material terms of the consulting agreement and there was conduct consistent with the existence of a consulting agreement (namely payment of consulting fees for 11 months). But these contentions ignore the reasons for nonsuit, i.e., the consulting agreement fell within the statute of frauds. Accordingly, we decline to consider them further.
2. Nonsuit on Fraud Cause of Action
Wright contends the trial court erred by granting nonsuit on his fraud cause of action against Chin. He cites no law, does not discuss any of the elements of actionable fraud, and does not demonstrate he produced sufficient evidence to prove each of those elements. The burden of demonstrating error rests squarely on the appellant. (See Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631 632, and cases cited therein.) When an appellant raises an issue “but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784 785 (Badie), see also Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 (Kim) [appellate court not required to consider points not supported by citation to authorities or record].) An appellant may not simply make the assertion the ruling is erroneous and leave it to the appellate court to figure out why. We decline to consider the point further.
3. Alter Ego
The jury found Chin was not a party to any of the alleged contracts. Wright raises several arguments pertaining to application of the alter ego doctrine. Wright contends he produced substantial evidence Chin was an alter ego of the corporations; the trial court erred by refusing to find Chin to be an alter ego of the corporations and to so instruct the jury; and the trial court erred when it denied his motion to compel production of financial records that might have proven the alter ego theory.
We begin by reiterating how the alter ego issue was handled below. At the beginning of trial, the court observed alter ego issues could be decided by the jury or the court. Wright’s counsel indicated he would “be asking the court to make such a determination.” Later, when discussing proposed jury instructions, Wright’s counsel offered a lengthy series of special jury instructions on alter ego liability, which the court rejected. The instructions were overly complicated and, as an equitable theory, the issue could be decided by the trial court. At the close of Wright’s case, EDS, USBD, and Chin moved for nonsuit on, among other things, the alter ego claims.
The court granted nonsuit without prejudice. It commented Wright had not presented sufficient evidence to justify application of the alter ego doctrine. However, if the jury returned a verdict against the corporations, Wright could post judgment seek to amend the judgment to have Chin added in as a judgment debtor. After the jury did in fact find the corporations liable for breach of contract, awarding Wright $181,396 in damages against the corporations, the trial court again explained to Wright’s counsel alter ego liability issues would be handled as a post judgment law and motion matter. After judgment was entered against the corporations, Wright filed a motion for JNOV asking the court to find Chin to be an alter ego of the corporations and set aside the verdict on the breach of contract cause of action against Chin. The court denied the motion, reminding there was no jury verdict on the alter ego claim to set aside because it had never been submitted to the jury. It further noted there was not evidence establishing alter ego liability “as to... Chin at this time.” (Italics added.)
To the extent Wright is complaining about the trial court’s refusal to submit the alter ego question to the jury, as the court explained in Dow Jones Co. v. Avenel (1984) 151 Cal.App.3d 144, 147 148, there is no right to have the issue submitted to the jury. “It is well settled that the alter ego doctrine is ‘essentially an equitable one and for that reason is particularly within the province of the trial court.’ [Citation.]” (Ibid.)
Although the trial court’s ruling was discussed below in terms of nonsuit, because applicability of the alter ego doctrine is a question for the trial court, the court was in effect granting judgment pursuant to Code of Civil Procedure section 631.8, which permits the court to weigh the evidence and draw reasonable inferences from it. (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 369.) On appeal, we review such rulings “under the substantial evidence standard, with the evidence viewed most favorably to the prevailing party.” (Ibid.; Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1248 [“Whether the evidence has established that the corporate veil should be ignored is primarily a question of fact which should not be disturbed when supported by substantial evidence”].)
Substantial evidence supports the trial court’s ruling. There are two requirements for an alter ego finding: (1) there is such a unity of interest and ownership between the corporation and its equitable owner that, in reality, their separateness does not exist; and (2) treatment of the acts in question as those of the corporation alone would lead to an inequitable result. (Associated Vendors, Inc. v. Oakland Meat Co., supra, 210 Cal.App.2d at p. 837.)
In his opening brief, Wright sets forth a laundry list of 18 factors he states were present, but almost none of which are analyzed with reference to evidence in the record. (See Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538 539 [factors supporting alter ego include but not limited to, commingling of funds and assets, holding out one entity as liable for debts of other, identical equitable ownership, use of same offices and employees use of one as a mere shell or conduit for affairs of other, inadequate capitalization, disregard of corporate formalities, lack of segregation of corporate records, and identical directors and officers].) Although Wright testified he considered Chin and Chin’s companies (USBD, Equity Solutions, and EDS) to be one and the same, he also testified all payments made to him were from the corporations-USBD, EDS, or Equity Solutions-there were no payments to him by Chin. And there was no evidence Chin ever commingled corporate funds with personal or used his corporate accounts to pay personal expenses or vice versa.
Wright claims the corporations are judgment proof because they were undercapitalized and thus it would be inequitable to treat the corporations as separate from Chin. Wright points to the fact that when EDS was initially incorporated, only 1,000 shares of common stock were issued to him, at $1 per share (those shares were then immediately transferred to USBD as part of the stock purchase agreement). He also relies on his assertion Chin never made good on his promise to put $200,000 into EDS. But neither establishes the corporations are now judgment proof, and we cannot say the court abused its discretion by concluding grounds for applying the alter ego doctrine had not been shown.
Wright’s contention the trial court improperly denied his motion to compel production of financial documents that could have proven alter ego liability, misrepresents what happened below. A month before trial, Wright filed an ex parte motion to compel production of various financial documents by Chin and the corporate defendants pursuant to a document production request served by Wright identifying 60 categories of documents. The trial court granted Wright’s motion as to many of the documents Wright sought, and denied the motion as to others. No further motion to compel was filed. In his opening brief, Wright makes absolutely no effort to identify as to which documents the motion to compel was denied, how or why the court abused its discretion in denying the motion as to those documents, or how the absence of any specific documents prejudiced his case. It is not our responsibility to comb through the record to figure it out.
We do note that on the first day of trial, there was a discussion on the record in which Wright’s counsel explained there was a dispute over document production request number 40-his request for all check registers of EDS. In ruling on Wright’s motion to compel a month earlier, the court granted the motion as to that item, but limited it to documents showing EDS’s “payments on Chin’s residential mortgages, car leases, vacation and other personal expenses.” Wright’s counsel explained EDS and Chin responded that there were no such documents. He complained that unless the court ordered EDS to turn over all its check registers, Wright had no way of knowing if that claim was truthful, i.e., if there really was something in check registers pertaining to EDS paying Chin’s personal expenses that would help establish alter ego liability. Counsel for EDS argued Wright was bringing “a defective motion for reconsideration” of the court’s earlier ruling on the ex parte motion to compel. The trial court agreed telling counsel “we are not going to revisit my ruling” on the motion to compel. “You got what you got.”
Wright has not shown the trial court abused its discretion by not ordering further financial documents be produced on the first day of trial. Furthermore, he has offered no cogent argument the trial court’s original ruling on the motion to compel constituted an abuse of discretion.
Furthermore, we fail to see how Wright has been prejudiced. Although the court found the evidence insufficient to support an alter ego finding against Chin at trial, it specifically advised Wright he could post judgment seek to amend the judgment against the corporations under Code of Civil Procedure section 187, and it left open all issues as to what further discovery would be available on such a post judgment motion. The Code of Civil Procedure permits post judgment discovery concerning the assets and financial means of a judgment debtor through the use of interrogatories in the manner provided in Code of Civil Procedure section 2030.010 and inspection demands in the manner provided in Code of Civil Procedure section 2031.010. (Code Civ. Proc., §§ 708.010, 708.020, & 708.030.) If in the course of exercising his rights as a judgment creditor, there is in fact additional evidence that would support an alter ego finding against Chin, Wright may exercise his rights to seek to amend the judgment under Code of Civil Procedure section 187.
4. Conversion
Wright contends the trial court erred by not permitting him to raise various defenses to EDS’s cause of action against him for conversion. We disagree.
Wright primarily contends he was justified in taking the funds from EDS’s bank account because EDS and/or Chin still owed him money for the sale of PGI’s business; by issuing a tax form 1099 including the $33,500 in its total, EDS ratified Wright’s act of taking the money; and because he still had check writing authority on the EDS account, it was permissible for him to withdraw the funds. Wright’s contentions are unavailing because the defenses are inapplicable.
“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. Conversion is a strict liability tort. The foundation of the action rests neither in the knowledge nor the intent of the defendant. Instead, the tort consists in the breach of an absolute duty; the act of conversion itself is tortious. Therefore, questions of the defendant’s good faith, lack of knowledge, and motive are ordinarily immaterial. [Citations.]” (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066, italics added.)
Here, the uncontroverted evidence was that EDS had a bank account at Wells Fargo Bank, Wright was signer on the account as an officer of EDS, he knew he was not legal owner of the funds in the EDS account, and in September 2007 he withdrew the funds from EDS’s bank account. That Wright believed he was justified in taking the funds is irrelevant. As to Wright’s arguments he should have been permitted to defend the conversion claim by demonstrating he was either (1) a conditional seller peaceably repossessing his “goods” (i.e., the funds in the account were PGI account receivables that had been deposited into the EDS account which he was entitled to “repossess”), or (2) he was engaged in an act of self defense-neither contention was raised below and cannot be raised for the first time on appeal.
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs on appeal.
WE CONCUR: MOORE, J., IKOLA, J.