Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. BS 092529, Edward A. Ferns, Judge.
Peter Hoffman, in pro. per.; Gipson Hoffman & Pancione, Kenneth I. Sidle and Corey J. Spivey for Appellant.
Davis Wright Tremaine, Andrew J. Thomas and Janet L. Grumer for Respondent Lions Gate Films, Inc.
Stowell, Zeilenga, Ruth, Vaughn & Treiger and David T. Stowell for Respondent Jonesfilm.
RUBIN, ACTING P. J.
For the third time in this court alone, Peter Hoffman appeals from the superior court’s amended judgment adding him as an alter ego judgment debtor to an arbitration award involving the movie, “9-1/2 Weeks.” We affirm.
FACTS AND PROCEEDINGS
We rely extensively on our previous opinions in this matter to describe this appeal’s background. Respondent Jonesfilm produced and owns the rights to the Kim Basinger and Mickey Rourke movie, “9 1/2 Weeks.” Jonesfilm granted NTTS Productions Ltd. the right to make a sequel. NTTS, in turn, assigned to the predecessor of respondent Lions Gate Films, Inc. the right to make a second sequel. When a dispute developed over the companies’ respective rights and obligations to each other concerning the sequels, Lions Gate exercised its right to contractual arbitration against Jonesfilm and NTTS. (Jonesfilm v. Hoffman (May 4, 2006, B183198) [nonpub. opn.] [at p. 2] (Jonesfilm I).)
At the end of a three-day hearing, the arbitrator issued findings and an award that contained a detailed allocation of rights among the parties. In his findings, the arbitrator found appellant Hoffman was NTTS’s alter ego. The arbitrator wrote, “Based on the evidence presented, I find that Peter Hoffman used NTTS as a corporate shell for his personal benefit to secure and re-license the sequel rights in the First Picture which are the subject of this arbitration. In so doing, Peter Hoffman disregarded the usual corporate formalities applicable to NTTS. I also find no evidence that there were any other ‘beneficial’ owners, officers or directors of NTTS, and there was no evidence that NTTS was an unwilling victim of Peter Hoffman’s actions in connection with the Second Picture and Third Picture. Accordingly, I find that it is equitable to disregard any distinction between NTTS and Peter Hoffman in considering the legal rights and responsibilities of Jonesfilm, NTTS and Lions Gate, and that for all purposes the actions of NTTS and Peter Hoffman should be considered as one and the same.” (Jonesfilm I, supra, B183198 [at pp. 2-3].) Despite the alter ego finding, the arbitrator noted appellant had not been a party to the arbitration agreement or arbitration. The arbitrator concluded he therefore lacked jurisdiction to attach any legal consequences to the finding. The arbitrator thus refused to issue any award against appellant, although he explicitly told Jonesfilm it was free to seek an award from the trial court. (Jonesfilm I, supra, [at p. 3].)
The trial court confirmed the arbitration award. Apparently to secure recovery of the award, Jonesfilm filed a motion in the trial court to add appellant as a cross-defendant and judgment debtor to the judgment confirming the arbitration award. In support of its motion, Jonesfilm argued NTTS was a shell corporation under appellant’s control. Jonesfilm also claimed appellant had caused NTTS to transfer all its assets to companies he controlled. According to Jonesfilm, one particularly egregious transfer involved appellant’s endorsing to one of his companies a $100,000 check made out to NTTS which NTTS was supposed to give to Jonesfilm. (Jonesfilm I, supra, B183198 [at p. 3].)
Over appellant’s written and oral opposition, the court granted Jonesfilm’s motion in March 2005 to add appellant as a judgment debtor. (See Code Civ. Proc., § 187 [permits court to amend judgment to add true defendant’s name].) The court based its ruling on a number of facts showing appellant was NTTS’s alter ego. For example, appellant entered into a number of agreements on NTTS’s behalf, including the transfer of its film rights, and appellant directed NTTS’s litigation posture in the arbitration. Appellant also handled NTTS’s communications and had his outside counsel represent NTTS. Finally, appellant admitted in his deposition taken for the arbitration that he had a beneficial interest in NTTS’s activities. (Jonesfilm I, supra, B183198 [at p. 3].)
The amendment entered on March 18, 2005, stated: “[T]his Judgment [is] hereby amended to include Peter Hoffman as a Judgment Debtor hereto as the alter ego to NTTS Productions, Ltd., and Peter Hoffman shall be jointly and severally liable for all of the obligations of NTTS Productions, Ltd. to Jonesfilm under this Judgment.”
Appellant appealed from the court’s March 2005 order adding him as a judgment debtor. He contended no substantial evidence existed to show he was the alter ego of NTTS. He also contended the court denied him due process in adding him to the judgment. In an unpublished decision, we rejected both contentions and affirmed the trial court’s judgment. (Jonesfilm I, supra, B183198 [at pp. 5, 8].) Our Supreme Court thereafter denied review.
The matter returned to the trial court. The court’s amended March 2005 judgment having become final, Jonesfilm applied to the clerk of the superior court for a writ of execution. Because the judgment did not state on its face the dollar amount of interest that NTTS owed – only that it began to accrue at 10 percent starting July 20, 2004 – the clerk refused to issue the writ. (Jonesfilm v. Hoffman (November 21, 2007, B196082) [nonpub. opn.] [at p. 3] (Jonesfilm II.) The court thereafter performed for the clerk’s benefit the mathematical calculation of the amount of interest that had accrued since the judgment’s July 2004 entry. Appellant appealed from the order, arguing he was liable to pay interest on NTTS’s behalf only from the day the court amended its judgment in March 2005 to name him NTTS’s alter ego, and not from the July 2004 entry of judgment. In our second unpublished opinion in this matter, we applied the “one judgment” rule to affirm the order because the accrual date, which was the bone of contention in appellant’s second appeal, was stated in the judgment from which appellant had filed his first appeal, thus barring him from challenging that accrual date in his second appeal. (Ibid.)
Its judgment stated: “Interest shall accrue at the legal annual rate of ten percent from July 20, 2004, the date of the Arbitrator’s issuance of the award....”
Following his second unsuccessful appeal to this court, appellant filed in August 2007 a motion in the superior court to modify the March 2005 amended judgment. Citing the court’s equitable powers to remedy gross miscarriages of justice, and pointing to authorities such as Kulchar v. Kulchar (1969) 1 Cal.3d 467 and Code of Civil Procedure section 473, subdivision (b), he urged the court to remove him as a judgment debtor from the amended judgment because his addition to the judgment was based on extrinsic fraud or mistake. The court denied his motion. In doing so, the court chastised appellant, telling him his motion was “revisiting the same issues” that had been previously decided against him. The court noted, “the most recent [motion] is simply a different theory based upon old facts of which you were aware of at the time as the case progressed.” This third appeal followed. Appellant’s opening brief does not comply with the court rule requiring him to explain how the court’s denial of his motion is an appealable order, which justifies our striking the brief. (Cal. Rules of Court, rule 8.204, subd. (a)(2)(B), (e)(2)(B).) We choose, however, to exercise our discretion to disregard appellant’s noncompliance with that rule. (Rule 8.204, subd. (e)(2)(C).)
DISCUSSION
Appellant contends the March 2005 order amending the judgment to name him a judgment debtor was procured by extrinsic fraud or mistake because he was denied a fair hearing. His contention squarely contradicts a key holding of our first opinion dealing with this matter. In that opinion, we held the court had afforded appellant due process, including notice and a right to be heard, before it amended the judgment to add him as an alter ego judgment debtor.
Appellant’s contention fixes on his not being a party to the arbitration. In support of his fixation, he miscites Carpenters 46 Northern Cal. Counties Conf. Bd. v. Zweigle (1982) 130 Cal.App.3d 337, which he also miscited in his first appeal, and which we discuss – again. Appellant asserts he:
“was not a party to and did not participate in the First Arbitration which had no jurisdiction over him. The Arbitrator so ruled he had no jurisdiction over Hoffman because it is ‘black letter’ law in California that an arbitrator has no right to make any rulings against an alleged alter ego who has not agreed to arbitration, as set forth in the leading case of Carpenters 46, Northern Cal. Ctys. Conf. Board v. Zweigle....”
But as we explained in our first opinion, and again explain here:
“Appellant’s due process claim focuses on the arbitration. He notes he was not a party to the arbitration, and never made a formal appearance in it.... Indeed, as appellant correctly notes, the arbitrator recognized he did not have jurisdiction over appellant to impose any legal consequences to his finding that appellant was NTTS’s alter ego. But, it was not the arbitrator who made appellant a judgment debtor—it was the court. And the court did so only after a noticed hearing at which appellant was allowed to offer evidence challenging Jonesfilm’s motion to make him a judgment debtor. Appellant thus had an opportunity to be heard. (See Carpenters 46 Northern Cal. Counties Conf. Bd. v. Zweigle (1982) 130 Cal.App.3d 337, 343 [court does not violate due process by adding alter ego as judgment debtor in a post arbitration proceeding even though alter ego was not party to arbitration].)” (Jonesfilm I, supra, B183198 [at p. 9].)
The record from Jonesfilm I shows that the noticed hearing took place on January 6, 2005. Before the hearing, appellant filed in opposition to the motion a memorandum and supporting declaration with exhibits. His memorandum asserted, among other points, “There is No Evidence in This Record to Support Any Finding That NTTS is the ‘Alter Ego’ of Hoffman.” At the hearing, he argued he was not a party to the arbitration and the arbitrator had found he had no jurisdiction over him. Resting on those points, appellant finished by saying, “I won’t bother the court with any further dialogue with some of the other statements of [JonesFilms’s] counsel that I disagree with, but I think that is the core of the matter from my perspective.” The record defeats appellant’s contention that the court denied him due process.
Appellant also contends insufficient evidence supported the finding he was NTTS’s alter ego. We held otherwise in our first opinion (Jonesfilm I, supra, B183198 [at pp. 5-8]), and this opinion’s factual discussion recites many of the facts supporting that holding. We stand by those facts and that holding.
Party Sanctions Are Appropriate
This appeal is from the trial court’s denial of appellant’s motion to modify a judgment we affirmed for the first time in Jonesfilm I in May 2006. With his motion and this appeal, appellant forces the trial court, this court, and respondents, to waste resources on matters we resolved almost three years ago. In May 2006, we found the trial court acted with sufficient evidence and due process in adding appellant as a debtor on Jonesfilm’s judgment against NTTS because appellant was NTTS’s alter ego. Appellant’s attempt to reverse the trial court’s order adding him to the judgment, which the law and facts support, must stop. Given the history of this case, appellant’s rehashing of points on appeal previously decided against him, and his unassailable legal credentials and sophistication as a graduate of an Ivy League law school, former law clerk to an esteemed jurist of the United States Court of Appeal for the District of Columbia, and partner of highly regarded law firms over the years, we find inescapable the conclusion that appellant knew his appeal was frivolous – and yet he persisted.
Our colleagues in Division 3 sanctioned appellant less than a year ago by directing the trial court in Hoffman v. Salke to order appellant to pay the attorney’s fees and expenses appellant’s opponent incurred in responding to another of appellant’s frivolous appeals arising out of the same business transaction at issue here. (Hoffman v. Salke (July 29, 2008, B201194) [unpub. opn.] [at p. 27] (Salke).) In Salke, appellant sued Alan Salke, who had represented Jonesfilm in negotiating the sequel agreement to “9-1/2 Weeks,” because he claimed Salke testified dishonestly in an arbitration hearing involving appellant’s dispute with Jonesfilm. (Id. [at pp. 10-11].) One of the grounds our colleagues cited to demonstrate the frivolousness of the appeal was the res judicata effect of the proceedings in Jonesfilm I. (Id. [at pp. 4-5, 15, 18].) Our colleagues explained they sanctioned appellant for several reasons, among them hoping to deter him from continuing to pursue frivolous appeals. (People ex rel. Dept of Transportation v. Outdoor Media Group (1993) 13 Cal.App.4th 1067, 1082.) We join Division 3 in that expectation. Accordingly, in accord with Jonesfilm’s request, we direct the trial court upon remand to impose sanctions against appellant personally in the amount of attorney’s fees and costs Jonesfilm incurred in this appeal. (Cal. Rules of Court, rule 8.276, subd. (a)(1).)
DISPOSITION
The March 2005 amended judgment is affirmed. Respondents to recover their attorney’s fees and costs on appeal, and Jonesfilm to recover its attorneys fees on appeal following proceedings in the trial court.
WE CONCUR: BIGELOW, J., BAUER, J.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.