Premium Stones Trading v. AMS Stones Warehouse CA4/1

Filed 9/24/13 Premium Stones Trading v. AMS Stones Warehouse CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PREMIUM STONES TRADING D061619
CORPORATION,

Plaintiff, Cross-Defendant, and
Respondent, (Super. Ct. No. 37-2010-00099871-
CU-BC-CTL)
v.

AMS STONES WAREHOUSE, INC.,

Defendant, Cross-complainant, and
Appellant,

CARLA MCEWEN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Joel M.

Pressman, Judge. Affirmed in part, reversed in part, remanded with directions.

Fasel & Fasel, Frank R. Fasel; Law Offices of Yasmine Djawadian and Yasmine

Djawadian for Defendants and Appellants.

No appearance for Plaintiff and Respondent.
 AMS Stones Warehouse, Inc. (AMS) and Carla McEwen (McEwen) appeal from a

judgment following a bench trial wherein the trial court found in favor of Premium

Stones Trading Corporation (Premium Stones), awarding Premium Stones $119,191.62

plus $44,970.38 in interest for a breach of oral contract, among other claims, as well as

$7,500 for passing dishonored checks. The judgment also included the trial court's

finding that McEwen was the alter ego of AMS.

AMS and McEwen contend that substantial evidence does not support the court's

judgment. We agree that substantial evidence does not support the court's finding in

favor of Premium Stones on the claim for account stated or the award of treble damages

for the dishonored checks, and we reverse the judgment as to these two claims. In all

other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

AMS and McEwen's primary contention on appeal is that substantial evidence

does not support the judgment following a bench trial. However, they fail to provide us

with any semblance of the evidence admitted at trial to support the trial court's judgment,

which is essential for a substantial evidence review. (See Ortega v. Pajaro Valley

Unified School Dist. (1998) 64 Cal.App.4th 1023, 1043 (Ortega).) The "Statement of

Facts" section of the opening brief merely presents on overview of the procedural history

of the dispute as well as a cursory explanation of the witnesses at trial. AMS and

McEwen do not supply us with the relevant facts based on the evidence admitted at trial.

Instead, they merely present us with "evidence" and argument that support only their

position. This is improper and inappropriate, especially when AMS and McEwen have

2
submitted the only brief in this matter. We therefore have provided a factual and

procedural history of this matter based on the record with minimal guidance from the

opening brief.

The Operative Pleadings

Premium Stones brought suit against AMS, McEwen, Faber Stone, LLC (Faber),

FBR Marble, Inc. (FBR), and Hikmet Aksel (Aksel) (AMS, McEwen, Faber, FBR, and

Aksel collectively referred to as Defendants) for breach of oral contract, goods sold and

delivered, open book account, account stated, and claim on dishonored checks. The

gravamen of the complaint involved Premium Stones's contention that AMS failed to pay

it pursuant to an oral consignment agreement. Premium Stones also alleged McEwen,

Faber, FBR, and Aksel were all alter egos of AMS.

AMS brought a cross-complaint against Premium Stones, Mauro Pitanga (Mauro),

and Claudia Pitanga (Claudia) for breach of contract, negligent misrepresentation,

intentional misrepresentation, accounting of joint venture, quantum meruit, and

promissory estoppel. AMS's primary contention was that it entered into a joint venture

with Premium Stones and Premium Stones breached that agreement by failing to infuse

cash into the joint venture and taking more than one-third of the profits of the joint

venture. AMS also claimed Mauro and Claudia were employees of Premium Stones,

who acted on the company's behalf.

The claims in both the operative complaint and the cross-complaint were tried in a

bench trial.

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 Premium Stones's Case

Mauro is president of Premium Stones. Premium Stones's business consists of

exporting granite from Brazil and selling it on consignment. Premium Stones's typical

consignment agreement involves providing a retailer with granite, and the retailer selling

the granite to the consumer and paying Premium Stones its costs plus 50 percent of the

profit.

Premium Stones started operating in 2007. At that time, it was incorporated in

Florida under the name Premium Stones Corporation. However, Premium Stones

Corporation's accountant, Derek Nakagawa (Nakagawa), advised Mauro to move the

company to California because all of the company's business was there. Premium Stones

moved to California and was incorporated under the name "Premium Stones Trading

Corporation" in 2008. Mauro added "Trading" to the company's name to make it "a little

bit different" and to better represent its style of business. When Premium Stones moved

to California, Nakagawa transferred all of Premium Stones Corporation's assets, debts,

and liabilities to Premium Stones. Premium Stones continued to serve the same clients as

Premium Stones Corporation and operated under previously existing consignment

agreements entered into by Premium Stones Corporation.

In early 2007, Mauro's friend introduced him to McEwen. McEwen was the

owner of Brazil Stones located at 7988 Miramar Road in San Diego. The physical

location of Brazil Stones consisted of a spacious yard with "slabs" of material like granite

as well as a large doublewide trailer containing an office, kitchen, and bathroom.

4
 Premium Stones and Brazil Stones entered into a written consignment agreement

(the Written Agreement).1 Under the Written Agreement, McEwen selected the granite

she wanted from Premium Stones based on the granite Premium Stones had available at

that time. Premium Stones then delivered the selected granite to Brazil Stones. Upon

delivery, McEwen inspected the granite to ensure that she received what she ordered and

provided Premium Stones with confirmation that she had received the material ordered.

Mauro informed McEwen of the cost of the granite. Brazil Stones then sold the granite

and paid Premium Stones the cost plus 50 percent of the profit after the sale. Mauro

returned to Brazil Stones's warehouse every 15 days or so to check on the amount of

granite sold. McEwen sometimes provided Mauro with written confirmation of what was

sold and for what price, and at other times, McEwen informed Mauro verbally of the

sales.

Shortly after Premium Stones and Brazil Stones began doing business, Brazil

Stones changed its name to AMS. Mauro visited Brazil Stones's yard at 7988 Miramar

Road and saw that the yard contained a sign indicating that the company was now called

AMS. Brazil Stones did not provide any written notice to Premium Stones that it was

changing its name nor did it ask Premium Stones to remove any of its unsold granite.

Mauro noticed that the employees were the same at AMS as they were at Brazil Stones.

McEwen told Mauro that she changed Brazil Stones's name to AMS because Brazil

Stones had owed "a bunch of people" money. However, she explained to Mauro that

1 Although the Written Agreement was a trial exhibit that was admitted into
evidence, AMS and McEwen did not include it in their appellant's appendix.
5
AMS and Brazil Stones were the same company and AMS would continue to sell

Premium Stones's granite. McEwen also informed Mauro that AMS was her company

and she would continue to operate like nothing had changed.

When Brazil Stones changed its name to AMS, McEwen began working with

Aksel. Aksel was McEwen's partner and had an ownership interest in AMS. He also had

an ownership interest in Faber and FBR, both of which operated similar businesses to

AMS.2 Mauro met Aksel when he learned that Brazil Stones had changed its name to

AMS.

At some point, AMS experienced financial difficulties and fell behind on its

payments to Premium Stones. Premium Stones maintained an account statement that

showed invoices, relating to granite provided to AMS, which had been paid or partially

paid. The account statement illustrated that Premium Stones had billed AMS a total of

$230,237.22 and had an open balance of $119,191.62. The account statement was

created by Nakagawa using a computer accounting system called QuickBooks.

Nakagawa created the account statement for AMS in his usual course of business by

inputting information regarding the purchases of inventory, customer sales, deposits to

the bank, and payment of bills based on information provided to him, such as bills of

lading, invoices, and purchase orders.

During the course of their business relationship, AMS provided Premium Stones

with four checks that were returned for insufficient funds. The first check, numbered

2 Premium Stones unsuccessfully sued Faber and FBR as alter egos of AMS; thus,
we do not include any substantive discussion of Faber or FBR.
6
1230, was made payable to Premium Stones in the amount of $6,500 and was dated

February 25, 2008. On the face of that check was a stamp stating: "Return Reason - A

Not Sufficient Funds." The second check, numbered 2077, was made payable to

Premium Stones in the amount of $3,000 and was dated June 20, 2008. On the face of

that check was a stamp providing: "Return Reason - S Refer to Maker." The third check,

numbered 2085, was made payable to Premium Stones in the amount of $6,112.71 and

was dated June 27, 2008. On the face of that check was a stamp avowing: "Return

Reason - A Not Sufficient Funds." The fourth check, numbered 1038, was made payable

to AMS in the amount of $800 and dated September 2008 (the day was illegible). On the

face of that check was a stamp affirming: "Return Reason - C Stop Payment." Premium

Stones provided additional evidence that it did not receive funds to cover any of the

returned checks.

McEwen also wrote a check, numbered 1045, on her personal account made

payable to Premium Stones in the amount of $4,000 and was dated July 8, 2008. The

check was returned for insufficient funds and bore the stamp on the face of the check

stating: "Return Reason – A Not Sufficient Funds." Premium Stones provided additional

evidence that it did not receive funds to cover McEwen's returned check.

McEwen drove one of AMS's company cars, a BMW. She would use an AMS

credit card to buy gas. McEwen also used the AMS credit card to purchase: meals at

restaurants like Outback Steakhouse, McDonald's, and In-N-Out; supplies and materials

from Home Depot; groceries, children's toys, clothing, and veterinary services for

McEwen's dog. AMS's bank records also indicated that mortgage payments were made

7
from the account, but AMS did not have a mortgage. McEwen also caused AMS to make

a $2,000 payment to the Kabbalah Centre. In addition, AMS's bank records showed that

checks were written to McEwen and on McEwen's behalf in relation to real estate

transactions that did not involve AMS. Also, McEwen wrote a $5,000 check on behalf of

AMS for rent.

Defendants' Case

Defendants challenged Premium Stones's case with four primary theories. First,

they argued they never did business with Premium Stones because Premium Stones was

incorporated in 2008 after the dispute arose. Instead, Defendants contend they only did

business with Premium Stones Corporation, a Florida corporation that no longer existed

at the time of the trial. Second, Defendants argued that all of Premium Stones's activities

were intended to fraudulently obtain work visas for Mauro and Claudia. The trial court

did not allow any evidence on this matter although Defendants tried numerous times to

offer such evidence. Therefore, we omit any discussion of this theory. Third, Defendants

claimed Premium Stones's employees created purchase orders on AMS's computers; thus,

the purchase orders produced at trial were shams and did not originate from AMS.

Finally, Defendants claimed that they paid Premium Stones far more money than

Premium Stones was seeking in the suit. In other words, there was no open balance.

Aksel handled the "financials" for AMS. Aksel admitted that Premium Stones

Corporation and AMS entered into an oral agreement, but characterized the agreement as

a joint venture. Aksel described the agreement as requiring Premium Stones Corporation

8
to provide granite to AMS, which AMS would sell and pay Premium Stones Corporation

its costs plus one-third of any profits.

Aksel, however, testified that the joint venture agreement never was reduced to

writing despite the parties' attempts to do so. In one of the draft agreements that Aksel

believed McEwen drafted, the draft agreement made clear that liabilities AMS owed to

Premium Stones in the amount of $119,998 would not be paid if the parties agreed to the

joint venture. Although Aksel admitted the $119,998 amount came from AMS's

QuickBooks system, he testified that its profit and loss statements were unreliable as

were some of AMS's inventory and sales reports. In other words, Aksel claimed the

$119,998 listed as a liability AMS owed Premium Stones was not accurate.

Aksel testified that when he made payments to Premium Stones, they were not

related to any invoice. He simply made payments to Premium Stones by check when

Premium Stones requested a check, but the understanding was that Premium Stones

would not deposit the check until AMS collected the funds from AMS's customers.

Aksel testified that AMS had a record of the total amount of payments made to Premium

Stones, but AMS did not produce any such record. Aksel agreed this was true despite the

fact that AMS's accounting software (QuickBooks) had the ability to produce such a

report.

McEwen testified that she sometimes told people she was an owner of AMS

because it was easier to explain than her claim that her mother was an owner and

McEwen had power of attorney over her mother's assets. McEwen took the position that

she was only AMS's employee. She also testified that all her credit card charges with

9
AMS's credit card were for business purposes. However, McEwen admitted that she used

AMS's bank accounts for personal expenses, but she reimbursed those accounts. She

provided no documents to support this testimony.

In addition, McEwen explained that the $72,787 of cash withdrawals from AMS's

bank account was used to pay employees and vendors. McEwen also claimed she made

several payments in cash to Premium Stones, but did not have any documents proving

such.

The Trial Court's Findings

After hearing closing arguments, the trial court granted Premium Stones's motion

for a nonsuit on the cross-complaint. In granting the motion, the court noted that the "the

cross-complainants, in trying to establish the elements of their causes of action lack total

credibility that there was any agreement whatsoever."

The trial court asked Premium Stones's counsel to draft a statement of decision

and provided the following guidance:

"My ruling in this case is and will turn on the credibility of the
witnesses. [¶] I have listened to the testimony of the Defendants in
this case, and I find each of the individuals to be incredible. I have
never – well, that's not true, I can't say 'never,' but the testimony of
Ms. McEwen is incredible, her conduct inappropriate, he-she. Well,
anyway, I have listened to the explanation of the documents which
she purported to deny. [¶] The Defendants did not produce any
documents other than attack the Plaintiff's documents and say that
they were unreal and unreliable. There were no corporate
documents expressed. So, in terms of credibility, I have a list that I
will be utilizing when we go review the statement of decisions that
are proposed. [¶] As to the alter ego allegations. My tentative is
this that judgment clearly is against AMS Stones Warehouse, Inc., a
California corporation. It is [clear] to me that Carla McEwen is, in
fact, and has, in fact used AMS Stones Warehouse Inc. as an alter

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 ego. She's used the corporation as her personal piggy bank. The
cash deposits, the cash that's been withdrawn from ATM, the
purchases for clothes, food, all were for personal purposes, all by
someone who had the unfettered access to the accounts and she used
those freely. And I've gone through the analysis and the criteria and
I think that if there was any case that has met the alter ego criteria,
Ms. McEwen meets that criteria with AMS Stones."

Premium Stones submitted a proposed statement of decision. The trial court

signed the proposed statement of decision with minor changes not relevant to any of the

issues raised here. Defendants filed an objection to the court's statement of decision

arguing that Defendants were denied an opportunity to propose a statement of decision or

comment on Premium Stones's proposed statement of decision. The court subsequently

entered judgment. AMS and McEwen appealed.

DISCUSSION

I

AMS AND MCEWEN'S CONTENTIONS

AMS and McEwen contend that substantial evidence does not support the

judgment. Specifically, they maintain: (1) the evidence showed Premium Stones lacked

standing to sue and (2) the evidence was insufficient to show a breach of oral agreement,

a cause of action for goods sold and delivered, a claim for open book account, a cause of

action for account stated, a claim on dishonored checks, and that McEwen was AMS's

alter ego.

A. Standard of Review

"In reviewing the sufficiency of evidence on appeal, we resolve all conflicts in

favor of the prevailing party and we indulge all legitimate and reasonable inferences to

11
uphold the verdict if possible. 'It is an elementary, but often overlooked principle of law,

that when a verdict is attacked as being unsupported, the power of the appellate court

begins and ends with a determination as to whether there is any substantial evidence,

contradicted or uncontradicted, which will support the conclusion reached by the

jury. . . .' [Citation.]" (Ortega, supra, 64 Cal.App.4th at p. 1043.) Our review is not

limited to appraising " 'isolated bits of evidence selected by the [appellant].' " (Bowers v.

Bernards (1984) 150 Cal.App.3d 870, 873.) We are required to accept all evidence

which supports the successful party, disregard the contrary evidence, and draw all

reasonable inferences to uphold the verdict. (Minelian v. Manzella (1989) 215

Cal.App.3d 457, 463.) Thus, it is not our role to reweigh the evidence, redetermine the

credibility of the witnesses, or resolve conflicts in the testimony, and we will not disturb

the judgment if there is evidence to support it. (Reichardt v. Hoffman (1997) 52

Cal.App.4th 754, 766; see Leff v. Gunter (1983) 33 Cal.3d 508, 518 (Leff).) Credibility is

an issue of fact for the finder of fact to resolve (Johnson v. Pratt & Whitney Canada, Inc.

(1994) 28 Cal.App.4th 613, 622), and the testimony of a single witness, even that of a

party, is sufficient to provide substantial evidence to support a finding of fact (In re

Marriage of Mix (1975) 14 Cal.3d 604, 614). "The ultimate test is whether it is

reasonable for a trier of fact to make the ruling in question in light of the whole record."

(Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.) Because Premium

Stones was the prevailing party at trial, we review the evidence in a light most favorable

to it. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787.)

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 Although AMS and McEwen raise a substantial evidence challenge, they fail to

cite appropriately to the record to mount such a challenge. They do not provide us with

the evidence that ostensibly supports the judgment and explain how this evidence

ultimately falls short in supporting the judgment. Instead, AMS and McEwen focus on

evidence they provided during trial. However, the trial court determined that their

evidence, especially Aksel's and McEwen's testimony, was unbelievable. We cannot

reweigh the evidence as AMS and McEwen impliedly urge us to do. (See Scott v. Pacific

Gas & Electric Co. (1995) 11 Cal.4th 454, 465.)

B. Premium Stones's Standing

AMS and McEwen contend that Premium Stones lacks standing to sue. They

argue that any business AMS conducted was with Premium Stones Corporation, a Florida

corporation, that was "dissolved at all times during said litigation." As such, AMS and

McEwen contend that Premium Stones Corporation was the real party in interest, and

Premium Stones, a California corporation, was not the proper plaintiff. We are not

persuaded.

Mauro testified that, on Nakagawa's suggestion, he moved Premium Stones

Corporation from Florida to California. All of Premium Stones Corporation's business

was in California. He renamed the entity Premium Stones Trading Corporation. When

Premium Stones Corporation moved to California, Mauro, through Nakagawa,

transferred all its assets, debts, and liabilities to Premium Stones. The new Premium

Stones continued to serve the same clients as the former Premium Stones Corporation

13
and operated under previously existing consignment agreements entered into by Premium

Stones Corporation.

Further, it was apparent that Aksel and McEwen were aware that Premium Stones

Corporation was operating as Premium Stones. They tried to negotiate a joint venture

agreement between Premium Stones and AMS. Indeed, AMS cross-complained against

Premium Stones for breach of an alleged joint venture agreement.

In short, substantial evidence shows that Premium Stones Corporation moved to

California, changed its name and continued to do business with the same customers as

before. And Aksel and McEwen drew no distinction between Premium Stones

Corporation and Premium Stones in their business dealings, except that they attempted to

negotiate a joint venture with Premium Stones only.

AMS and McEwen contend, even if we determine Premium Stones assumed all

the liabilities and assets of Premium Stones Corporation, Premium Stones still lacked

standing to sue on behalf of Premium Stones Corporation. (See J.C. Peacock, Inc. v.

Hasko (1960) 184 Cal.App.2d 142, 150-152 (J.C. Peacock).) AMS and McEwen's

reliance on J.C. Peacock is misplaced.

In J.C. Peacock, supra, 184 Cal.App.2d 142, the Court of Appeal determined that

the plaintiff, the surviving postmerger corporation, could not initiate a lawsuit in the

name of the merged out corporation. Having done so in the name of a corporation that no

longer existed, the plaintiff "was not entitled to the extraordinary and summary

proceeding of attachment." (Id. at p. 152.) Here, Premium Stones did not bring suit in

the name of a nonexistent corporation. In contrast, Premium Stones was abundantly clear

14
during its case-in-chief, consistent with its complaint, that it was pursuing damages based

on its business relationship with AMS, not Premium Stones Corporation's relationship

with AMS. Unlike the plaintiff in J.C. Peacock, Premium Stones did not file numerous

complaints in the name of a merged out corporation while consistently representing to the

court that the merged out company still legally existed. Premium Stones proceeded with

the instant action at all times as Premium Stones. It never represented to the court that

Premium Stones Corporation was the proper plaintiff. In addition, Premium Stones was

an incorporated California corporation prior to filing suit. J.C. Peacock therefore is not

instructive here. Premium Stones had standing.

C. Breach of Oral Contract and Common Counts

AMS and McEwen next contend that substantial evidence does not support the

trial court's finding in favor of Premium Stones on its causes of action for breach of oral

contract, goods sold and delivered, and open book account. We disagree.

To state a cause of action for breach of contract, a party must plead the existence

of a contract, his or her performance of the contract or excuse for nonperformance, the

defendant's breach, and resulting damage. (Harris v. Rudin, Richman & Appel (1999) 74

Cal.App.4th 299, 307.) Here, Premium Stones offered sufficient evidence to establish

each of these elements.

Premium Stones Corporation and Brazil Stones entered into a written consignment

contract whereby Premium Stones Corporation would provide Brazil Stones with slabs of

granite, and after Brazil Stones sold the slabs, it would pay Premium Stones Corporation

its costs plus half the profits. When Brazil Stones changed its name to AMS, McEwen,

15
on behalf of AMS, confirmed that AMS would continue to do business with Premium

Stones Corporation under the terms of the written agreement. Premiums Stones

Corporation subsequently changed its name to Premium Stones Trading Corporation and

continued to do business with AMS.

AMS and McEwen argue there was no contract because Premium Stones did not

prove a "meeting of the minds": there was a disagreement between the parties regarding

the amount AMS would pay Premiums Stones. "Evidence" of this disagreement is found

in the testimony of Aksel and McEwen. The court, however, determined their respective

testimony was unreliable. The court believed Mauro's testimony that McEwen agreed to

an oral contract according to the terms testified to by Mauro. One witness's testimony

can establish substantial evidence. (See In re Marriage of Mix, supra, 14 Cal.3d at

p. 614.) Despite the urging of AMS and McEwen, we cannot reevaluate witness

credibility or reweigh evidence on appeal. (Leff, supra, 33 Cal.3d at p. 518.)

We also are satisfied that substantial evidence shows Premium Stones proved its

performance under the oral contract. It offered Mauro's testimony regarding the delivery

of slabs of granite to AMS as well as purchase orders from AMS confirming the granite

received, Premium Stones's invoices, and other documentary evidence showing that

Premium Stones delivered granite slabs to AMS. McEwen's and AMS's challenge goes

to the weight of the evidence considered by the trial court. They argue that AMS did not

16
create the purchase orders, some of the documents were illegible,3 and other documents

were unreliable. It bears repeating that we do not reweigh the evidence on appeal. (Leff,

supra, 33 Cal.3d at p. 518.)

In addition, there was substantial evidence that AMS breached the oral contract

and Premium Stones was damaged. Premium Stones offered an account statement

showing an unpaid balance of $119,191.62. This amount was close to the amount of

liability AMS owed Premium Stones as set forth in a document created by McEwen

based on AMS's records. Further, Premium Stones provided evidence through

Nakawaga's testimony regarding the creation of the account statement and how the

outstanding balance was calculated.

AMS and McEwen challenge the account statement, arguing that it contained the

date "August 1, 2011" and time "6:11 p.m." on the top left corner indicating it was made

"nearly eleven months after the lawsuit was filed." However, this is an argument that

needed to be made to the trial court. AMS and McEwen had the opportunity to probe this

issue during the cross-examination of Mauro and Nakagawa. They did not sufficiently do

so, and there is nothing in the record supporting their argument now. Perhaps, the date

and time stamp on the document indicate when that spreadsheet was printed. Maybe the

date and time stamp are incorrect. On this record, we do not know. As such, we accept

3 There only appears to have been one document admitted into evidence where
Defendants objected that it was illegible, but the court admitted only the first page of the
document, which was legible.
17
the trial court's reliance on the account statement and consider it substantial evidence of

the amount AMS owed Premium Stones.

Like Premium Stones's claim for breach of oral contract, we are satisfied that

substantial evidence supports the trial court's finding in favor of Premium Stones on its

causes of action for goods sold and delivered and open book. These claims are common

counts. (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 553, p. 680.) "The only

essential [elements] of a common count are '(1) the statement of indebtedness in a certain

sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.'

[Citation.]" (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.) Here, the

same evidence that supports Premium Stones's claim for breach of oral contract supports

these common counts.

In summary, substantial evidence supports the trial court's findings in favor of

Premium Stones that it proved its claims for breach of oral contract, goods sold and

delivered, and open book.

D. Account Stated

"The essential elements of an account stated are: (1) previous transactions

between the parties establishing a relationship of debtor and creditor; (2) an agreement

between the parties, express or implied, on the amount due from the debtor to the

creditor; (3) a promise by the debtor, express or implied, to pay the amount due." (Zinn

v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600.) AMS and McEwen assert that

the evidence does support the second element of this cause of action. We agree.

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 There is nothing in the record indicating an agreement between the parties that

AMS would pay Premium Stones a set amount. Although Premium Stones's spreadsheet

and AMS's own documents indicate amounts owed that are close to the same number,

they do not match. No other evidence offered at trial shows that the parties agreed on the

exact amount AMS owed Premium Stones. Thus, substantial evidence does not support

the trial court's finding that Premium Stones proved its cause of action for account stated.

E. The Dishonored Checks

Premium Stones brought claims based on five dishonored checks. Although we

are satisfied that Premium Stones proved that each check was returned for insufficient

funds, we agree with AMS and McEwen that Premium Stones was not entitled to treble

damages under Civil Code section 1719, subdivision (a)(2). That subdivision allows the

payee to recover treble damages capped at $1,500 if the payee sends written demand by

certified mail to the person who passed the check advising him or her that if he or she

does not pay the amount of the check within 30 days from the date of the written demand,

he or she could be liable for treble damages. (Civ. Code, § 1719, subd. (a)(2).)

There is nothing in the record indicating that Premium Stones proved that they

made the required mailings. We note that copies of what purports to be the required

mailings are attached to Premium Stones's complaint, but neither letter was admitted at

19
trial. Without proof of the mailings, Premium Stones was not entitled to treble damages

and the judgment as to the award of treble damages must be reversed.4

F. Alter Ego

The trial court found that McEwen was the alter ego of AMS. McEwen

challenges this finding, arguing it is not supported by substantial evidence. Specifically,

McEwen argues that there was no evidence that she was anything more than an employee

of AMS. She also contends that, even if she was an owner of AMS, there was no

evidence supporting any of the factors warranting an alter ego finding. We disagree.

A corporation is ordinarily regarded as a legal entity, separate and distinct from its

shareholders, officers, and directors. (Sonora Diamond Corp. v. Superior Court ( 2000)

83 Cal.App.4th 523, 538 (Sonora).) Nonetheless, a corporate identity may be

disregarded "where an abuse of the corporate privilege justifies holding the equitable

ownership of a corporation liable for the actions of the corporation." (Ibid.) Alter ego

liability affords relief when "some conduct amounting to bad faith makes it inequitable

for the corporate owner to hide behind the corporate form." (Id. at p. 539.)

4 AMS and McEwen insist that Premium Stones was awarded damages equaling the
entire open balance, which included the amount of the returned checks. AMS and
McEwen therefore argue that any damages awarded for the dishonored checks are
improper "double" damages. We disagree. The judgment does not award Premium
Stones both the amount of the open book in addition to the amount of the checks.
Instead, in regard to the dishonored checks, the court awarded Premium Stones treble
damages under Civil Code section 1719, subdivision (a)(2) only. These damages are in
addition to the amount of the checks, which the court did not award Premium Stones in
addition to the damages for the open book. The treble damages would have been proper
if Premium Stones had proven the required mailing occurred.
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 Two conditions must be met to find alter ego liability: (1) "[T]here must be such a

unity of interest and ownership between the corporation and its equitable owner that the

separate personalities of the corporation and the shareholder do not in reality exist"; and

(2) if the acts in question are treated as those of only the corporation, the result will be

inequitable. (Sonora, supra, 83 Cal.App.4th at p. 538.)

Among the factors to be considered in applying the alter ego doctrine are

(1) commingling of funds and other assets, (2) the holding out by one entity that it is

liable for the debts of the other, (3) identical equitable ownership in the two entities, (4)

use of the same offices and employees, (5) use of one entity as a mere shell or conduit for

the affairs of the other, (6) inadequate capitalization, (7) disregard of corporate

formalities, (8) lack of segregation of corporate records, and (9) identical directors and

officers. (Sonora, supra, 83 Cal.App.4th at pp. 538-539.) "No one characteristic

governs, but the courts must look at all the circumstances to determine whether the

doctrine should be applied." (Id. at p. 539.) The trial court's alter ego finding is reviewed

for substantial evidence. (Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210

Cal.App.2d 825, 837.)

McEwen's first argument challenging the court's finding that she is an alter ego of

AMS rests on a faulty premise: there was no evidence that McEwen was anything more

than an employee of AMS. This is untrue. The only evidence presented at trial that

McEwen was an employee came from the testimony of Aksel and McEwen. The court

found such testimony unbelievable.

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 To the contrary, Premium Stones presented substantial evidence supporting the

conclusion that McEwen was an owner of AMS. Mauro testified that McEwen told him

she was an owner. McEwen had a company credit card, signed company checks,

withdrew money out of AMS's bank account, and attempted to make a payment from her

personal account on behalf of AMS. When Premium Stones and AMS were negotiating a

joint venture, McEwen was a signatory on all the draft documents and mentioned by

name in the documents. McEwen even admitted that she told people she was an owner of

AMS.

Further, we are satisfied that substantial evidence supports a unity of interest and

ownership between AMS and McEwen that the separate personalities of AMS and

McEwen do not in reality exist. In addition to the evidence offered to show McEwen was

an owner of AMS, Premium Stones presented evidence that (1) McEwen used the AMS

credit card to buy personal items, such as clothing, groceries, and meals; (2) AMS's funds

were used to make mortgage payments for property not owned by AMS and Aksel had no

knowledge of those payments; and (3) McEwen withdrew cash from AMS's bank account

for personal use. Also, the court noted that AMS never produced any corporate

documents. Moreover, although asked several times regarding the capitalization of AMS

at its creation, none of the witnesses questioned (Aksel and McEwen) were able to

provide coherent testimony about its capitalization, warranting the inference that the

company was not sufficiently capitalized.

McEwen ignores most of this evidence. For the evidence she does acknowledge,

McEwen argues about the weight of the evidence. For example, she claims that Premium

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Stones did not sufficiently cross-examine her about the credit card charges. Again, this

argument goes to the weight of the evidence. Premium Stones raised the question of the

credit card charges in its examination of Aksel. McEwen tried to explain away the

questionable charges when she was questioned by her attorney, but the trial court did not

believe her. In conducting a substantial evidence review, we must accept the fact finder's

credibility determinations. (See Johnson v. Pratt & Whitney Canada, Inc., supra,

28 Cal.App.4th at p. 622.) As we discuss above, we cannot reweigh the evidence.

(Reichardt v. Hoffman, supra, 52 Cal.App.4th at p. 766.) This is precisely what McEwen

asks us to do.

Finally, substantial evidence supports the second prong necessary to invoke alter

ego liability. Here, it is apparent that AMS lacked funds. They owed Premium Stones

over $100,000. If the court did not find McEwen was the alter ego of AMS, it leads to

the possibility that any judgment against AMS would go unsatisfied. While this in itself

does not create an inequitable result, under the circumstances here, it is apparent that

McEwen's conduct at least partly led to AMS's financial woes. Put differently, a finding

of no alter ego liability would sanction McEwen's behavior, which, in the words of the

trial court, consisted largely of treating AMS "as her personal piggy bank." The trial

court's finding of alter ego liability thus prevented an inequity.

DISPOSITION

The judgment is reversed as to the claims for account stated and the award of

treble damages for the dishonored checks. The judgment is otherwise affirmed. We

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remand this matter to the trial court for further proceedings consistent with this opinion,

if necessary. The parties shall bear their own costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

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