Unreported / Non-Citable
Background
This appeal arises from long-running litigation that began in 2011 when an entity identifying itself as North County Communications Corporation filed suit against Vaya Telecom, Inc. After the trial court entered discovery sanctions in 2014 and final judgment in 2015, the court permitted an amendment clarifying that North County Communications Corporation of California (NCCC) was the proper plaintiff. The Court of Appeal affirmed the judgment and a subsequent award of $504,507.93 in costs and attorney fees in prior appeals.
In 2019, Vaya moved to amend the judgment to add alter ego judgment debtors, including NCCC, its president Todd Lesser, and two corporate entities. The trial court granted the motion in May 2019, entering an amended judgment totaling $597,474.38. Vaya later obtained a second amendment in September 2020 adding $759,679.89 in enforcement costs, and a third amendment in August 2022 adding $431,124.87, bringing the total judgment to $1,788,279.14. NCCC did not appeal the second or third orders.
In January 2024, NCCC moved to vacate all three amending orders as void under Code of Civil Procedure section 473, subdivision (d), arguing defective service and that the court exceeded its jurisdiction. The trial court denied the motion, finding no basis to vacate the prior rulings. NCCC appealed; Lesser initially appealed but abandoned his appeal.
The Court’s Holding
The Court of Appeal affirmed. Regarding the first order adding alter egos, the court held NCCC forfeited any service challenge by making a general appearance through filing an ex parte application for a continuance and appearing at the motion hearing without contesting service. The court also held NCCC could not raise arguments on behalf of other parties who did not appeal. The court rejected NCCC's claim that the trial court improperly 'combined' judgments, finding no authority supporting the assertion and no change to NCCC's liability.
The court further held that NCCC's status as plaintiff defeated its service arguments. NCCC was the plaintiff who invoked the court's jurisdiction in the first instance, and Vaya served its motion on counsel of record for the plaintiff. The court also rejected NCCC's assertion that it was not the plaintiff, finding the assertion inaccurate in light of the 2014 amendment naming NCCC as the appropriate plaintiff and NCCC's failure to fairly represent the procedural history.
As to the second order adding enforcement costs, the court held NCCC forfeited its service argument by filing multiple oppositions on the merits and appearing through counsel at several hearings without ever challenging service. The court declined to address NCCC's new argument about separate memoranda or noticed motions because it was not raised in the trial court. Because the second order was not void, the court found the third order incorporating it was also not void. The court declined to consider two additional issues raised for the first time on appeal regarding assignment notices and expiration of enforcement periods, finding them forfeited or not properly presented. The order was affirmed, and Phillips was awarded her costs on appeal.
Key Takeaways
- A party forfeits challenges to defective service by making a general appearance, including filing a request for continuance or opposing a motion on its merits without raising service objections.
- An appellant cannot raise arguments on behalf of other parties who did not appeal the judgment or order at issue.
- A party's status as plaintiff who invoked the court's jurisdiction defeats claims that subsequent motions initiated new proceedings requiring formal service of process.
- Claims that a trial court exceeded its authority require citation to legal authority and cogent argument; undeveloped assertions are forfeited on appeal.
- Issues not raised in the trial court generally will not be considered for the first time on appeal, even if framed as jurisdictional challenges.
Why It Matters
This decision reinforces the importance of timely raising service defects and jurisdictional challenges in the trial court. Parties who appear and litigate motions on their merits without preserving service objections will forfeit those arguments on appeal, even when seeking to vacate orders as void under section 473(d).
The opinion also clarifies that appellate courts will not permit parties to relitigate the status of entities as plaintiffs when the record shows formal amendments and the party failed to fairly represent procedural history. The court's willingness to augment the record and take judicial notice of prior opinions demonstrates the importance of complete and accurate record designation.