Annette Rubin vs Frederick A Aspenlieter et al

Case Number

15CV02057

Case Type

Hearing Date / Time

Mon, 12/16/2024 - 10:00

Nature of Proceedings

Motion: Amend

Tentative Ruling

Annette Rubin v. Frederick A. Aspenlieter, et al.   

Case No. 15CV02057

           

Hearing Date: December 16, 2024                                         

HEARING:              1. Motion of Aspen Custom Interior Woodworking, Inc. to Amend Judgment Adding Abraham Stuart Rubin as Judgment Debtor                                               

ATTORNEYS:        For Plaintiff Annette Rubin: Self-Represented

                                    For Defendant and Cross-Complainant Aspen Custom Woodworking, Inc.: Daniel E. Engel

                                    For Defendant Frederick A. Aspenlieter: Daniel E. Engel

                                   

TENTATIVE RULING:

The motion of Aspen Custom Interior Woodworking, Inc. to amend judgment adding Abraham Stuart Rubin as judgment debtor is denied.

Background:

This action concerns a contract for the installation of custom cabinetry (“the project”). In October 2014, plaintiff Annette Rubin (“Rubin”) hired defendant Aspen Custom Interior Woodworking, Inc. (“Aspen”) pursuant to an oral contract to furnish and install custom cabinetry at her home located at 4357 Marina Drive, Santa Barbara, California 93110. Aspen is owned by defendant Frederick A. Aspenlieter (“Aspenlieter”). In the beginning, Rubin paid Aspen for the work that was done, but after several weeks, she ceased paying the company, claiming that she had lost the invoices, or her bookkeeper needed more information. By May 2015, Aspen was owed the sum of $58,272.98, which Rubin refused to pay, so Aspen left the job site. Aspen thereafter filed a mechanic’s lien, but on threat of legal action by Rubin, withdrew the lien. 

On July 21, 2015, Rubin filed her complaint against Aspen and Aspenleiter. The complaint was never served and on December 29, 2015, Rubin filed her first amended complaint (“FAC”), alleging causes of action for breach of contract, slander of title, and equitable indemnity. Aspen and Aspenleiter answered the FAC on March 11, 2016, and at the same time cross-complained against Rubin for breach of oral contract, common counts, and fraud. Aspen claimed that it was still owed the sum of $58,272.98 for the work it performed. Rubin claimed that Aspen overbilled for its work and for the work performed by the various subcontractors.

The case was tried before a jury in November 2018. At the conclusion of the trial, the jury returned a verdict in favor of Aspen and Aspenleiter and against Rubin on all causes of action.  Aspen’s damages were determined to be $30,615.32. Judgment was entered on November 8, 2018. The Court denied Rubin’s motion for judgment notwithstanding the verdict, and granted Aspen’s motion for an award of attorneys’ fees and penalty interest, pursuant to Civil Code section 8800, awarding attorneys’ fees in the amount of $40,504.07, and penalty interest in the amount of $28,165.80. As a result, the total amount Rubin was obligated to pay to Aspen was $99,285.19.

Rubin appealed the judgment against her, including the award of attorneys’ fees and penalty interest. With the exception of correcting the judgment on the cross-complaint to refer only to Aspen, and not to its principal (Aspenleiter), who had not been a party to the cross-complaint, the judgment was affirmed in all other respects.

On June 6, 2024, Aspen filed a substitution of attorney replacing their previous attorney with current counsel, who filed a renewal of the judgment on June 14, 2024.

Aspen now moves to amend the judgment adding Rubin’s husband, Abraham Stuart Rubin (“Mr. Rubin”) as a judgment debtor.

The motion was served, by mail, on both Rubin and Mr. Rubin on October 8, 2024. No opposition or other responsive document has been filed.

Analysis:

Aspen argues that it contracted with both Rubin and Mr. Rubin to perform on the contract and that they should be jointly and severally liable for the judgment. Aspen argues that its prior counsel should have, but did not, name Mr. Rubin in the cross-complaint and erroneously sought judgment against Rubin only. Aspen then speculates as to why prior counsel may have omitted Mr. Rubin from the cross-complaint.

Aspen argues that the court has authority to add Mr. Rubin as a judgment debtor pursuant to Code of Civil Procedure section 187, which 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 processing may be adopted which may appear most comfortable to the spirit of this Code.”

Aspen cites a handful of cases in support of its motion, but none of them are on point or support its argument. For example: Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, involved the amending of a judgment to add the “alter ego” of the judgment debtor that had sufficient control of the underlying litigation and was virtually represented in the action. Here, as Aspen acknowledges, Mr. Rubin is not the alter ego of Rubin. He had no control of the underlying litigation and was not represented. 

Likewise, Dow Jones Co. v. Avenel (1984) 151 Cal.App.3d 144, Favila v. Pasquarella (2021) 65 Cal.App.5th 934, Carolina Casualty Ins. Co. v. L.M. Ross Law Group, LLP (2012) 212 Cal.App.4th 1181, and Carr v. Barnabey’s Hotel Corp. (1994) 23 Cal.App.4th 14, are all cases that relied on theories of alter ego liability.

Aspen is correct that: “ ‘. . . 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.’ ” However, that is not the case here. There is no California authority that would allow the addition of a spouse, who was neither a defendant nor an alter ego of the defendant, to be added as a judgment debtor and be personally responsible for the judgment against the other spouse. Due process would require that Mr. Rubin be allowed to defend himself in the underlying case.

This case was filed approximately nine and one-half years ago and tried more than six years ago. By way of the present motion, Aspen Custom Interior Woodworking, Inc. is trying to summarily try this case against A. Stuart Rubin long past the expiration of the statute of limitations. The fact that two other contractors who worked on the project obtained judgments against both Rubin and Mr. Rubin, is irrelevant. Mr. Rubin was a party to that action and, although he did not prevail, he was able to provide a defense and afforded the due process required.

Further: “A motion to amend a judgment under § 187 must also be made within a reasonable time. See, e.g., Cigna, 159 F.3d at 421; Alexander v. Abbey of the Chimes, 104 Cal.App.3d 39, 48–49, 163 Cal.Rptr. 377 (1980) (court abused its discretion in granting motion to amend judgment after an almost seven-year delay because movants had no reasonable explanation).” (In re Levander (1999) 180 F.3d 1114, 1121, fn. 10.) Here, no reasonable explanation is given for the six plus year delay in seeking to amend the judgment. The failure of previous counsel to name Mr. Rubin as a defendant, for unknown reasons, is not a reasonable excuse.

The motion will be denied.