Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from orders of the Superior Court of Los Angeles County, William F. Highberger, Judge. Affirmed in part; dismissed in part. Los Angeles County Super. Ct. No. C547248 c/w C554554
Katherine Butts Warwick for Cross-Complainant, Plaintiff and Appellants.
Ervin, Cohen & Jessup LLP, Barry MacNaughton and Randall S. Leff for Cross-Defendants, Defendants and Respondents.
TURNER, P. J.
I. INTRODUCTION
Martin M. Schultz appeals from: a December 12, 2006 order in Fulton Associates v. SMC Real Corp. (Super. Ct. L.A. County, 1996, Nos. C547248/C554554) (Fulton Associates) denying his motion to amend the judgment in his favor on his cross-complaint to add judgment debtors; and a February 7, 2007 order denying reconsideration of the December 12, 2006 order. We affirm the order denying the motion to amend the judgment. We find there is no appeal from the reconsideration order. Mr. Schultz and Alan B. Cherman appeal from a February 2, 2007 order in Grill v. Fulton Associates (Super. Ct. L.A. County, 1993, Nos. C555888/C555889) (Grill) denying a motion to enter a final judgment. We conclude Mr. Schultz has no standing to appeal from the order. We affirm as to Mr. Cherman.
II. BACKGROUND
These consolidated appeals arise out of investments in real estate limited partnerships. Fulton Associates held the general partnership interest in eight California limited partnerships: 7125 Fulton, Ltd.; 8920 Orion, Ltd.; 8025 Reseda, Ltd.; 8039 Reseda Ltd.; 8123 Sepulveda, Ltd.; 9027 Tobias II; and Chase II, Ltd. Fulton Associates was wholly owned by Cordary, Inc. Cordary, Inc. was wholly owned by two lawyers, Jay C. Miller (now deceased) and his son, Michael D. Miller. Fulton Associates acquired the general partnership interest from SMC Real Corp. Mr. Schultz and Mr. Cherman had financial interests in the partnerships.
For purposes of clarity and not out of any disrespect, the Millers will henceforth be referred to by their first names.
III. DISCUSSION
A. The Schultz v. Fulton Associates Cross-Complaint in Fulton Associates
1. The Motion To Amend The Judgment
On July 7, 2006, Mr. Schultz filed a motion to amend a March 8, 1996 judgment in Fulton Associates. The judgment was entered in his favor on his cross-complaint and against Fulton Associates. Mr. Schultz sought to add Fulton Associates’ alleged alter egos, Jay and Cordary, Inc., as judgment debtors, by offensive application of the collateral estoppel doctrine. (Code Civ. Proc., § 187.) In addition, Mr. Schultz sought to add Michael as a judgment debtor on alter ego grounds.
a. Code of Civil Procedure section 187
Pursuant to Code of Civil Procedure section 187, a California court may use “all the means necessary” to carry its jurisdiction into effect: “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.” (See Daily Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117, 1130; Kaufman v. Court of Appeal (1982) 31 Cal.3d 933, 939.) Section 187 grants the trial court the authority to amend a judgment to add additional judgment debtors on alter ego grounds. (NEC Electronics, Inc. v. Hurt (1989) 208 Cal.App.3d 772, 778; Dow Jones Co. v. Avenel (1984) 151 Cal.App.3d 144, 148.) The underlying theory is that the amendment does not add a new party but merely names the real actor, the original defendant’s alter ego. (McClellan v. Northridge Park Town home Owners Assn. (2001) 89 Cal.App.4th 746, 752; Tokio Marine & Fire Ins. Corp. v. Western Pac. Roofing Corp. (1999) 75 Cal.App.4th 110, 116; Triplett v. Farmers Ins. Exchange (1994) 24 Cal.App.4th 1415, 1420; NEC Electronics, Inc. v. Hurt, supra, 208 Cal.App.3d at p. 778.)
To obtain a section 187 order adding an alter ego as an additional judgment debtor, the moving party must show by a preponderance of the evidence that two requirements are both satisfied. First, the moving party must demonstrate the new judgment debtor is the alter ego of the original defendant. Second, as a due process matter, the moving party must demonstrate the new judgment debtor controlled the litigation. (McClellan v. Northridge Park Town home Owners Assn., supra, 89 Cal.App.4th at p. 752; Triplett v. Farmers Ins. Exchange, supra, 24 Cal.App.4th at p. 1421.) The Court of Appeal has explained: “‘This 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 individual defendants where it can be demonstrated that in their capacity as alter ego of the corporation they in fact had control of the previous litigation, and thus were virtually represented in the lawsuit.” [Citation.]’ [Citations.]” (McClellan v. Northridge Park Town home Owners Assn., supra, 89 Cal.App.4th at p. 752; see Dow Jones Co. v. Avenel, supra, 151 Cal.App.3d at pp. 148-149.)
b. Collateral estoppel as to Jay and Cordary, Inc.
Before Judge William F. Highberger, who issued the orders under review, Mr. Schultz argued Jay and Cordary, Inc. were collaterally estopped to deny they were alter egos of Fulton Associates because a finding to that effect had been entered in Grill, a related action. Mr. Schultz relied on a January 18, 1989 ruling in Grill. A nonjury, evidentiary hearing was held on that date as to the alter ego question. The January 18, 1989 minute order in Grill states, “The Court’s tentative ruling is that the acts of Cordary, Miller and Fulton are one and the same.” (Italics added.) Judge Highberger denied Mr. Schultz’s motion to amend the judgment to add Jay and Cordary, Inc. as judgment debtors. Judge Highberger concluded the alter ego finding in Grill was not sufficiently final to be given collateral estoppel effect. An order denying the motion was entered on December 12, 2006.
On appeal, Mr. Schultz argues Judge Highberger’s ruling was error as a matter of law. Our review as to collateral estoppel is de novo. (Tennison v. California Victim Compensation and Government Claims Bd. (2007) 152 Cal.App.4th 1164, 1174; Roos v. Red (2005) 130 Cal.App.4th 870, 878; Groves v. Peterson (2002) 100 Cal.App.4th 659, 667.) We agree with Judge Highberger’s well stated collateral estoppel analysis and affirm the order as to Jay and Cordary, Inc.
The Supreme Court has held: “‘Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings.’ (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) The doctrine applies ‘only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.] The party asserting collateral estoppel bears the burden of establishing these requirements.’ (Id. at p. 341.) ‘Even assuming all the threshold requirements are satisfied, however, our analysis is not at an end. We have repeatedly looked to the public policies underlying the doctrine before concluding that collateral estoppel should be applied in a particular setting.’ (Id. at pp. 342-343.)” (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 943-944, italics added; accord, Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201, fn. 1; Professional Engineers v. Department of Transportation (1997) 15 Cal.4th 543, 568; Gikas v. Zolin (1993) 6 Cal.4th 841, 848-849.)
Finality has been described as a “cornerstone” of the collateral estoppel doctrine. (People v. Cooper (2007) 149 Cal.App.4th 500, 520; People v. Scott (2000) 85 Cal.App.4th 905, 918.) The Restatement Second of Judgments, section 13 provides, “[F]or purposes of issue preclusion (as distinguished from merger and bar), ‘final judgment’ includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect.” The Supreme Court and Courts of Appeal have followed the view of the Restatement Second of Judgments. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1290-1291; Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 911; Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1564; Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1174; People v. Scott, supra, 85 Cal.App.4th at p. 919-920; Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1482-1483; Nash v. Workers’ Comp. Appeals Bd. (1994) 24 Cal.App.4th 1793, 1812; Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1181; Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, 936.) For example, in Border Business Park, Inc. v. City of San Diego, supra, 142 Cal.App.4th at page 1564, the Court of Appeal held, “[F]or purposes of issue preclusion . . . ‘“final judgment” includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect.’ (Rest. 2d Judgments, § 13, italics added; see Sabek, Inc. v. Engelhard Corp. [(1998)] 65 Cal.App.4th [992,] 998; Sandoval v. Superior Court[, supra, ]140 Cal.App.4th [at p.] 936.)” (Accord, People v. Cooper, supra, 149 Cal.App.4th at p. 520.) The substance and effect of the order for which collateral estoppel effect is sought determines whether it is final. (People v. Cooper, supra, 149 Cal.App.4th at p. 521; Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 666.) A merely tentative decision is not sufficiently final for collateral estoppel purposes. Comment a to section 13 of the Restatement Second of Judgments states, “[Conclusive effect] should not be accorded a judgment which is merely tentative in the very action in which it was rendered.” Comment g to section 13 of the Restatement Second of Judgments further explains, “[Issue] preclusion should be refused if the decision was avowedly tentative.” This is because the court retains inherent power to modify a tentative ruling. (Cal. Rules of Court, rule 3.1590 (formerly rule 232); cf. Bomberger v. McKelvey (1950) 35 Cal.2d 607, 612-613 [preliminary injunction]; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1248-1249 [preliminary injunction]; Rest. 2d Judgments, § 13, com. a; see George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd., supra, 49 Cal.3d at pp. 1290-1291 [interlocutory order].) Rule 3.1590, which applies when the trial of a question of fact takes more than one day (rule 3.1590), states: “(a) On the trial of a question of fact by the court, the court must announce its tentative decision by an oral statement, entered in the minutes, or by a written statement filed with the clerk. . . . [¶] (b) The tentative decision does not constitute a judgment and is not binding on the court. . . .” Here, following the trial of an issue of fact, the judge in the Grill matter issued an explicitly “tentative” decision on alter ego liability. By identifying the decision as tentative, the judge in the Grill matter necessarily retained his power to modify the ruling. (Cal. Rules of Court, rule 3.1590(b); Horning v. Shilberg (2005) 130 Cal.App.4th 197, 202-203; In re Marriage of Hafferkamp (1998) 61 Cal.App.4th 789, 793-794; Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477, 493-494.) We agree with Judge Highberger—the Grill tentative decision was not sufficiently firm to be given collateral estoppel effect.
All further references to a rule are to the California Rules of Court.
c. Alter ego liability as to Michael
A nonjury evidentiary hearing was held before Judge Highberger as to the alleged alter ego liability. At the conclusion of that hearing, Judge Highberger denied the motion to amend as to Michael. Judge Highberger found: there was no commingling of funds; “more than the average amount of corporate formalities” were observed; legitimate business transactions occurred; there was no unity of interest; and there was no inequitable result. Judge Highberger ruled, “This is intended to be a final and binding decision . . . .”
The Supreme Court discussed alter ego liability in Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 300: “The alter ego doctrine arises when a plaintiff comes into court claiming that an opposing party is using the corporate form unjustly and in derogation of the plaintiff’s interests. (6 Witkin, Summary of Cal. Law (8th ed. 1974) Corporations, § 5, p. 4318.) In certain circumstances the court will disregard the corporate entity and will hold the individual shareholders liable for the actions of the corporation: . . . . [¶] There is no litmus test to determine when the corporate veil will be pierced; rather the result will depend on the circumstances of each particular case. There are, nevertheless, two general requirements: ‘(1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow.’ (Automotriz etc. de California v. Resnick (1957) 47 Cal.2d 792, 796.)” Alter ego liability is a question of fact. (Jack Farenbaugh & Son v. Belmont Construction, Inc. (1987) 194 Cal.App.3d 1023, 1032-1033; Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 836-837.) Our review is for substantial evidence to support the trial court’s finding. (Baize v. Eastridge Companies (2006) 142 Cal.App.4th 293, 302; NEC Electronics Inc. v. Hurt, supra, 208 Cal.App.3d at p. 777; Associated Vendors, Inc. v. Oakland Meat Co., supra, 210 Cal.App.2d at pp. 836-837.)
On appeal, Mr. Schultz argues uncontested evidence supports a finding Fulton Associates was the alter ego of Michael. Mr. Schultz’s argument is premised on a discussion of evidence favorable to his position, without reference to any contrary facts. The Supreme Court discussed such a presentation on appeal in In re Marriage of Fink (1979) 25 Cal.3d 877, 887-889: “‘The rule is well established that a reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue. Unless this is done, the error assigned is deemed to be waived. [Citation.] It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings.’ [Citations.]” (See No Slo Transit, Inc. v. City of Long Beach (1987) 197 Cal.App.3d 241, 251.) In Marriage of Fink, because of the one-sided incomplete briefing, the Supreme Court summarily rejected the appellant’s argument. (In re Marriage of Fink, supra, 25 Cal.3d at p. 888; see Building Industry Ass’n of San Diego County v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 866, 888.) The Court of Appeal has further explained: “It is the appellant’s burden, not the court’s, to identify and establish deficiencies in the evidence. (Brown v. World Church [(1969)] 272 Cal.App.2d 684, 690.) This burden is a ‘daunting’ one. (In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329.) ‘A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]’ (Roemer v. Pappas (1988) 203 Cal.App.3d 201, 208, italics added.) ‘[W]hen an appellant urges the insufficiency of the evidence to support the findings it is his duty to set forth a fair and adequate statement of the evidence which is claimed to be insufficient. He cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect.’ (Hickson v. Thielman (1956) 147 Cal.App.2d 11, 14-15.)” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409; accord, Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557; Building Industry Assn. of San Diego County v. State Water Resources Control Bd., supra, 124 Cal.App.4th at p. 888.) Mr. Schultz has not met his burden as to the sufficiency of the evidence to support the alter ego finding as to Michael. Accordingly, we will affirm the order.
2. The reconsideration motion
Judge Highberger’s order denying the motion to amend the judgment was entered on December 12, 2006. Mr. Schultz filed his notice of appeal from that order on March 2, 2007. The March 2, 2007 notice of appeal is from, “An order after judgment under Code of Civil Procedure section 904.1(a)(2).” Judge Highberger’s written order denying the motion to amend is attached to the notice of appeal. No mention whatsoever is made of the February 2, 2007 order denying Mr. Schultz’s reconsideration motion. We are without jurisdiction to consider an order not mentioned even inferentially in the notice of appeal. (Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 91-92; DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43; Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 624-625; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47; Eskaton Monterey Hospital v. Myers (1982) 134 Cal.App.3d 788, 790, fn. 1; Estate of McManus (1963) 214 Cal.App.2d 390, 394, fn. 1.) Even if the notice of appeal could be construed to extend to the order denying reconsideration, it is well settled that an order denying reconsideration or a renewal motion is not appealable. (Code Civ. Proc., § 904.1; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459; Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1242; Wickware v. Tanner (1997) 53 Cal.App.4th 570, 574; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 333; Crotty v. Trader (1996) 50 Cal.App.4th 765, 769; Alioto Fish Co., Ltd. v. Alioto (1994) 27 Cal.App.4th 1669, 1679-1680; Hughey v. City of Hayward (1994) 24 Cal.App.4th 206, 210; Estate of Simoncini (1991) 229 Cal.App.3d 881, 891; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1550, fn. 2; Rojes v. Riverside Gen. Hosp. (1988) 203 Cal.App.3d 1151, 1160-1161; Lim v. Silverton (1997) 61 Cal.App.4th Supp. 1, 4.)
B. The Motion To Enter A Final Judgment In Grill v. Fulton Associates
1. The notice of appeal
a. Mr. Schultz’s standing to appeal
On October 20, 2006, Alan B. Cherman, a plaintiff in Grill, filed a motion for entry of judgment. The motion was filed by Katherine Butts Warwick as “Counsel for Plaintiff, Alan B. Cherman.” The motion states, “PLEASE TAKE NOTICE that, on November 13, 2006 . . ., before the Honorable William F. Highberger, . . . Plaintiff ALAN B. CHERMAN will move the Court for entry of Judgment in this matter.” Fulton Associates, Cordary, Inc., and Jay opposed the motion. Judge Highberger denied the motion to enter a judgment with prejudice. Judge Highberger found Mr. Cherman had failed to show a basis on which a dismissal entered in 1993 should be set aside and “a compelling case” of laches had been shown.
Ms. Warwick’s assertion in this court that she filed the motion on behalf of her “clients,” the “moving parties”—plural—is contrary to the record.
On its face, the notice of appeal from the order denying Mr. Cherman’s motion to enter a judgment in Grill was filed by Mr. Schultz. The notice of appealis set forth on a form approved for optional use by the Judicial Council of California. The notice of appeal was filed by Ms. Warwick as: “[The] attorney for . . .: Appellant, Martin M. Schultz[.]” The portion of the notice of appeal form intended for designating the parties appealing—“Notice is hereby given that (name): ______ appeals from the following judgment or order”—was left blank. Mr. Schultz is not a party of record in Grill.
We asked the parties to brief the question whether Mr. Schultz has standing to appeal from the order denying Mr. Cherman’s motion to enter a judgment in Grill. Standing to appeal is a jurisdictional requirement. (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 814, fn. 6; People v. Stark (2005) 131 Cal.App.4th 184, 200; United Investors Life Ins. Co. v. Waddell & Reed, Inc. (2005) 125 Cal.App.4th 1300, 1304; In re Harmony B. (2005) 125 Cal.App.4th 831, 837-838; In re Frank L. (2000) 81 Cal.App.4th 700, 703; Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295; Life v. County of Los Angeles (1990) 218 Cal.App.3d 1287, 1292, fn. 3.) The elements of standing are set forth in Code of Civil Procedure section 902, which states in part, “Any party aggrieved may appeal . . . .” (Code Civ. Proc., § 902.) Hence, to have standing to appeal, one must be both a party and aggrieved. (Code Civ. Proc., § 902; Estate of Goulet (1995) 10 Cal.4th 1074, 1079; Agricultural Labor Relations Bd. v. California Coastal Farms, Inc. (1982) 31 Cal.3d 469, 475, fn. 2.)
As a general rule, only a party of record may appeal. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736; Howard Contracting, Inc. v. G.A. MacDonald Construction Co., Inc. (1998) 71 Cal.App.4th 38, 58.) However, a nonparty may also have standing to appeal in certain cases provided he or she is aggrieved by the order or judgment appealed. (Adams v. Woods (1857) 8 Cal. 306, 314-315; Slaughter v. Edwards (1970) 11 Cal.App.3d 285, 291-292.) The Supreme Court has held: “One is considered ‘aggrieved’ whose rights or interests are injuriously affected by the judgment. [Citations.] Appellant’s interest ‘must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment.’ [Citation.]” (County of Alameda v. Carleson, supra, 5 Cal.3d at p. 737; accord, Estate of Goulet, supra, 10 Cal.4th at p. 1079, fn. 3.) For example, a person who is bound by res judicata has standing to appeal even if not a party of record. But the standing to appeal exists only when the res judicata effect is immediate, pecuniary, and substantial. (In re Carissa G. (1999) 76 Cal.App.4th 731, 736; Marsh v. Mountain Zephyr, Inc., supra, 43 Cal.App.4th at pp. 295-297; Life v. County of Los Angeles, supra, 218 Cal.App.3d at p. 1292; Leoke v. County of San Bernardino (1967) 249 Cal.App.2d 767, 771; see Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2006) 141 Cal.App.4th 46, 58.) For example, an attorney’s potential malpractice liability following a judgment adverse to his or her client is a nominal or remote consequence of that judgment. (Life v. County of Los Angeles, supra, 218 Cal.App.3d at pp. 1292-1293; In re Marriage of Tushinsky (1988) 203 Cal.App.3d 136, 140-142.) In addition, an aggrieved nonparty may become a party of record by moving to vacate a judgment or for a new trial and thereby obtain the right to appeal. (County of Alameda v. Carleson, supra, 5 Cal.3d at pp. 736-737; Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1342-1343; Marsh v. Mountain Zephyr, Inc., supra, 43 Cal.App.4th at p. 295.) An appeal by one not aggrieved must be dismissed. (Estate of Goulet, supra, 10 Cal.4th at p. 1101; Estate of Funkenstein (1915) 170 Cal. 594, 595-596; Crook v. Contreras (2002) 95 Cal.App.4th 1194, 1201.)
Mr. Schultz was not a party to the Grill action. Nor does it appear that he is a nonparty with standing to appeal from the order denying Mr. Cherman’s motion to enter a judgment. Mr. Schultz was not a party to that motion. Mr. Schultz’s interest in the appealed order stems from his desire to assert the collateral estoppel effect of a purported alter ego finding in Grill. However, Mr. Schultz is not sufficiently aggrieved by the order denying Mr. Cherman’s motion so as to satisfy the foregoing standing requirements. Mr. Schultz’s potential inability to assert the collateral estoppel effect of a purported finding in Grill absent entry of a judgment therein is akin to an attorney’s potential malpractice liability following a judgment adverse to a client. Mr. Schultz’s interest in the ruling in Grill is not immediate, pecuniary, and substantial. Therefore, Mr. Schultz has no standing to appeal the Grill order and his appeal must be dismissed.
b. Mr. Cherman’s appeal
We turn to the question whether the notice of appeal can be construed as an appeal by Mr. Cherman from the order denying his motion to enter a judgment in Grill. A proper notice of appeal is jurisdictional. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696; Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Olson v. Cory (1983) 35 Cal.3d 390, 398.) But a timely filed notice of appeal must be liberally construed in favor of its sufficiency. (Rule 8.100(a)(2); Sheet Metal Workers Internat. Assn. v. Rea (2007) 153 Cal.App.4th 1071, 1074, fn. 2.)
The question before us is whether a notice of appeal by Mr. Schultz—a nonparty with no standing—can be construed as a notice of appeal by Mr. Cherman—a party with standing. The answer is found in Sing v. Southern Pacific Company (1918) 178 Cal. 261, 262-264, which held a notice of appeal was not defective although it referred to the wrong party as the appellant. The notice of appeal at issue in Sing was signed by the attorney representing all three of the defendants—Southern Pacific Company, George W. Blackburn, and H. W. Crumrine. The notice of appeal stated: “‘[T]he defendants, Southern Pacific Company, a corporation, C. A. Burton and H. W. Crumrine, hereby appeal from . . . that certain judgment, in favor of the plaintiff and against said defendants . . . .’” (Id. at p. 262, italics added.) The Sing respondents filed a motion to dismiss the appeal as to Mr. Blackburn on grounds he had not filed a notice of appeal. That motion was denied. The Supreme Court affirmed. The Supreme Court found the name C. A. Burton had mistakenly and inadvertently appeared on the notice of appeal instead of Mr. Blackburn. (Ibid.) The Supreme Court framed the question as whether any notice of appeal was filed on Mr. Blackburn’s behalf when, in attempting to list him as an appellant, another name was substituted, and as a result, his name did not appear at all. (Id. at p. 263.) The Supreme Court answered that question in the affirmative. The Supreme Court reasoned: the judgment appealed from was entered against the Southern Pacific Company, Mr. Crumrine, and Mr. Blackburn only; all three defendants were represented in the action by the same attorney; there was no judgment against any person named C. A. Burton; the record showed the new trial motion, from which an appeal also was taken, was made by Southern Pacific Company, Mr. Crumrine, and Mr. Blackburn only, and no individual named C. A. Burton was involved; the notice of appeal also referred to an order reducing the judgment, which order was in favor of Southern Pacific Company, Mr. Crumrine, and Mr. Blackburn only; no one named C. A. Burton was involved therein; and an undertaking on appeal filed on the same day as the notice of appeal stated the appeal was by defendants Southern Pacific Company, Mr. Crumrine, and Mr. Blackburn. (Id. at p. 263.)
The Supreme Court concluded: “It seems perfectly apparent from the notice [of appeal], when read in connection with the record, that such notice was filed on behalf of the three defendants against whom the judgment runs, and that the use of the name ‘C. A. Burton’ instead of ‘George W. Blackburn’ to designate one of the appellants was solely due to inadvertence—a mere clerical misprision. One of the three defendants against whom the judgment runs and on whose behalf it was desired to appeal was designated as ‘C. A. Burton’ instead of ‘George W. Blackburn.’ The record demonstrates this, and the adverse party could not have been misled thereby. Under these circumstances we are satisfied it should not be held that no notice of appeal was filed by Blackburn.” (Sing v. Southern Pacific Company, supra, 178 Cal. at pp. 263-264; see also, Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 974 [plaintiff’s appeal construed to include attorney against whom sanctions order was also entered]; Kane v. Hurley (1994) 30 Cal.App.4th 859, 861, fn. 4 [party’s notice of appeal construed to include sanctioned attorney]; but see Laborde v. Aronson (2001) 92 Cal.App.4th 459, 465 [court lacked jurisdiction to review sanctions order against attorney where notice of appeal filed by client only]; Taylor v. Varga (1995) 37 Cal.App.4th 750, 761, fn. 12 [court lacks jurisdiction to construe appeal from sanctions order by party as also by sanctioned attorney]; Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 42 [no appeal by sanctioned attorney not included in client’s notice of appeal]; see also 20th Century Ins. Co. v. Choong (2000) 79 Cal.App.4th 1274, 1276-1277.)
We liberally construe the notice of appeal by Mr. Schultz as a notice of appeal by Mr. Cherman. The notice of appeal states it is from the “Order Denying Motion To Enter Judgment.” It is signed by an attorney, Ms. Warwick, who represented both Mr. Schultz, in Fulton Associates, and Mr. Cherman in the related Grill action. The motion to amend the judgment was brought by Mr. Cherman and denied as to him. The motion was not brought by Mr. Schultz nor denied as to him. Ms. Warwick signed and filed a civil case information statement in this appeal as counsel for “Appellants Estate of Clifford Grill et al.” The civil case information statement identifies Ms. Warwick’s clients as including Mr. Cherman. Under these circumstances, the notice of appeal read in connection with the record makes it clear the notice was filed on Mr. Cherman’s behalf. Moreover, no party could have been misled and there is no indication that they were.
2. The merits
a. discretionary dismissal
The complaints in Grill were filed on July 11, 1985. A jury verdict as to liability was entered on January 19, 1989. The jury found Cordary, Inc. and Fulton Associates: breached a partnership contract; breached their fiduciary duties; and converted funds. The trial court ruled, “[N]o final judgment can or should be entered until the accounting matter has been resolved, at which time the accounting decision will be incorporated into the final judgment.” On April 28, 1989, the accounting matter was submitted to a referee, Retired Judge Robert A. Wenke. Judge Ronald M. Sohigian entered an order adopting Retired Judge Wenke’s first report on November 10, 1992. On October 4, 1993, the case was dismissed by former Judge Robert M. Mallano for failure to bring it to trial or conditionally settle it within two years pursuant to Code of Civil Procedure sections 583.410, subdivision (a), 583.420, subdivision (a)(2)(A), and 583.420, subdivision (a)(2)(B) and former rule 372(a) (now rule 3.1340(a)). The dismissal resulted from the issuance of a court generated order to show cause. No opposition was filed in response to the order to show cause. No motion to vacate the dismissal was filed. There was no appeal from the dismissal order. Subsequent to the dismissal, however, on October 24, 1994, now Retired Judge Reginald Dunn entered an order adopting in part Retired Judge Wenke’s second report. As noted above, on October 20, 2006, thirteen years after Grill was dismissed, Mr. Cherman filed a motion to enter a judgment in the action. Judge Highberger denied the motion with prejudice. Judge Highberger found Mr. Cherman failed to show a basis on which the 1993 dismissal should be set aside and “a compelling case” of laches had been shown.
Mr. Cherman argues the 1993 dismissal for failure to prosecute is void on its face because it was entered after the trial was complete and the accounting phase was underway. We conclude the dismissal is not void on its face. We find no abuse of discretion.
Pursuant to Code of Civil Procedure sections 583.410, subdivision (a) and 583.420, subdivisions (a)(2)(A) and (a)(2)(B) and what is now rule 3.1340(a), a trial court, in its discretion, may dismiss an action that has not been brought to trial within two or three years. A discretionary dismissal under Code of Civil Procedure sections 583.410 and 583.420 is reviewed for an abuse of discretion. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443; Blank v. Kirwan (1985) 39 Cal.3d 311, 331.) The trial court’s decision is presumed to be correct. (Howard v. Thrifty Drug & Discount Stores, supra, 10 Cal.4th at p. 443; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The burden is on the party challenging the decision to show an abuse of discretion. (Howard v. Thrifty Drug & Discount Stores, supra, 10 Cal.4th at p. 443; Blank v. Kirwan, supra, 39 Cal.3d at p. 331.) In Blank, the Supreme Court stated: “When the trial court has ruled on such a motion, “‘“unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.”’ (Denham v. Superior Court[, supra, ]2 Cal.3d [at p.] 566; accord, Martindale v. Superior Court (1970) 2 Cal.3d 568, 574.)” (Blank v. Kirwan, supra, 39 Cal.3d at p. 331.) Moreover, the Supreme Court has further held, “[E]ven if there is no indication of the trial court’s rationale for dismissing an action, the court’s decision will be upheld on appeal if reasonable justification for it can be found.” (Howard v. Thrifty Drug & Discount Stores, supra, 10 Cal.4th at p. 443; United Pacific Ins. Co. v. Hanover Ins. Co. (1990) 217 Cal.App.3d 925, 933.)
A judgment or order is “void on its face” when the rendering court lacks personal or subject matter jurisdiction or grants relief it has no power to grant. (Sindler v. Brennan (2003) 105 Cal.App.4th 1350, 1353; Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239.) In Roman v. Usary Tire & Service Center (1994) 29 Cal.App.4th 1422, 1430-1431, for example, the Court of Appeal held the trial court “lacked authority” to dismiss a case for failure to bring it to trial within two years pursuant to Code of Civil Procedure section 583. 410, subdivision (a) and therefore abused its discretion when the action was less than two years old. Hawks v. Hawks (2006) 141 Cal.App.4th 1435, 1437 is to the same effect. In Hawks, we held a dismissal for failure to serve the summons and complaint within two years under Code of Civil Procedure section 583.410, subdivision (a)(2) was “improper” because the action had been pending for only two months. (Ibid.) A party may move to set aside a void judgment or order under Code of Civil Procedure section 473, subdivision (d). (Sindler v. Brennan, supra, 105 Cal.App.4th at p. 1353; see Roman v. Usary Tire & Service Center, supra, 29 Cal.App.4th at p. 1426.) Prejudice is not a factor when a dismissal order is void. (Sindler v. Brennan, supra, 105 Cal.App.4th at p. 1354; Sugimoto v. Exportadora de Sal, S.A. de C.V. (1991) 233 Cal.App.3d 165, 170.)
Here, when the Grill action was dismissed, it had been pending for more than 8 years, from July 1985 to October 1993, it had been tried only as to liability, the accounting phase had been under submission for more than 4 years, since April 1989, and no final judgment had been entered. Former Judge Mallano had the discretionary power to dismiss and reasonably could conclude the matter had not been diligently prosecuted, particularly in the absence of any objection. The dismissal order is not void.
b. Laches
Mr. Cherman further argues Judge Highberger ruled Fulton Associates met its burden on laches without evidence of harm and notwithstanding substantial evidence its own actions contributed to the delay. Mr. Cherman contends laches does not preclude entry of a judgment where the harm to Fulton Associates is outweighed by the harm to the plaintiffs. Judge Highberger’s laches finding is subject to review for substantial evidence. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 67; Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624.) The Supreme Court has held, “‘The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ (Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 359 . . ., fns. omitted.)” (Johnson v. City of Loma Linda, supra, 24 Cal.4th at p. 68; accord, Miller v. Eisenhower Medical Center, supra, 27 Cal.3d at p. 624.) The Supreme Court discussed the standard of review in Miller as follows: “Prejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain his burdens of proof and the production of evidence on the issue. ([Conti v. Board of Civil Service Commissioners, supra, 1 Cal.3d] at p. 361.) Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances, and in the absence of manifest injustice or a lack of substantial support in the evidence, its determination will be sustained. (See Rouse v. Underwood (1966) 242 Cal.App.2d 316, 323; Teixeira v. Verissimo (1966) 239 Cal.App.2d 147, 158; see also Concerned Citizens of Palm Desert, Inc. v. Board of Supervisors (1974) 38 Cal.App.3d 257, 265-266; McClung v. Saito (1970) 4 Cal.App.3d 143, 152.)” (Miller v. Eisenhower Medical Center, supra, 27 Cal.3d at p. 624.)
Mr. Cherman has not shown Judge Highberger’s laches finding is without evidentiary support. As discussed above, the Supreme Court has held that a reviewing court presumes the record contains evidence to support the trial court’s factual findings. (In re Marriage of Fink, supra, 25 Cal.3d at pp. 887-888; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245-1247.) An appellant asserting insufficient evidence must summarize the material evidence, favorable and unfavorable, and demonstrate its insufficiency. (In re Marriage of Fink, supra, 25 Cal.3d at p. 887; Brockey v. Moore (2003) 107 Cal.App.4th 86, 96-97 .) Mr. Cherman’s entire argument on appeal with respect to laches is as follows: “The Grill plaintiffs did not sleep on their rights. In his First Report executed on November 25, 1991, the Referee recommended ‘that the Court defer its ruling as to the total amount of damages to be awarded to the Plaintiffs.’ [Record citation.] That recommendation was adopted in the Order entered on November 10, 1992 which stated ‘The Court defers its ruling as to the total amount of damages, if any, to be awarded to the Plaintiffs’ [record citation]. In his Second Report filed on October 24, 1995, the Referee incorporated three optimistic letters from Fulton’s counsel in the SMC litigation [record citation] and again recommended that the ‘Court defer taking any position vis-à-vis the SMC litigation until it is finally resolved.’ [Record citation.] The Referee identified the SMC litigation as the ‘sole remaining asset’ of the partnerships. [Record citation.] The Court adopted that recommendation. [Record citation.] There the matter rested. As set out above, remittitur did not issue from the Fulton’s appeal of the Judgment in favor of Mr. Schultz until July 14, 1999. [Record citation.] The Plaintiffs filed the Motion for Entry Of Judgment, shortly after they learned that the SMC litigation had been resolved, on October 20, 2006. [¶] Fulton asserts and the trial court found ‘a compelling case of latches’ based on the absence of a record for appeal. [Record citation.] Although Fulton argued that the trial records were unavailable and presented a declaration from a Court Staff Supervisor for an attorney service that he could not find some documents, neither counsel nor Michael Miller gave a declaration that the transcripts, documents and exhibits were not available from Fulton, or Fulton’s counsel, Irell & Manella. [Record citation.] [¶] The plaintiff limited partners believe that they are currently owed $944,600 plus interest awarded by the Referee. [Record citation.] As this Court recently noted, a dismissal benefits the defendants—in this case Jay Miller, Cordary and their adjudicated alter ego Fulton. [Citation.] Latches is an equitable defense. In this matter, the equities are with the prevailing plaintiff limited partners and not with the defendants who misappropriated the proceeds from the sale of the partnership assets.” (Original italics.) Mr. Cherman has not shown that no evidence or any reasonable inferences therefrom support Judge Highberger’s laches finding. Mr. Cherman has not summarized the favorable and unfavorable evidence and has not shown how and why it is insufficient. We must presume the record contains sufficient evidence to support Judge Highberger’s laches finding. The Grill action was dismissed on October 4, 1993. The motion to enter a judgment was filed over 13 years later, on October 20, 2006.
IV. DISPOSITION
The December 12, 2006 order denying the motion to amend the judgment in Fulton Associates v. SMC Real Corp. (Super. Ct. L.A. County, 1996, No. C547248/C554554) is affirmed. We dismiss Martin M. Schultz’s purported appeals from the February 7, 2007 order denying reconsideration of the December 12, 2006 order, and the February 2, 2007 order denying the motion to enter a final judgment in Grill v. Fulton Associates (Super. Ct. L.A. County, 1993, No. C555888/C555889). We affirm the February 2, 2007 order as to Alan B. Cherman. Fulton Associates and 9027 Tobias II, Ltd. are to recover their costs on appeal jointly and severally from Martin M. Schultz and Alan B. Cherman.
We concur: ARMSTRONG, J. KRIEGLER, J.