North County Communications Corp. v. Vaya Telecom CA4/1

Filed 10/22/26 North County Communications Corp. v. Vaya Telecom CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA NORTH COUNTY D083958 COMMUNICATIONS CORPORATION OF CALIFORNIA, Plaintiff and Appellant, (Super. Ct. No. 37-2011- 00083845-CU-BC-CTL) v. VAYA TELECOM, INC., Defendant; PAMELA A. PHILLIPS, Claimant and Respondent. APPEAL from an order of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed. Law Offices of Michael H. Weiner and Michael H. Weiner; Law Office of D. Joshua Staub and Joshua Staub, for Plaintiff and Appellant.  Epps & Coulson, Dawn M. Coulson and Gabriel M. Courey, for Claimant and Respondent. INTRODUCTION Plaintiff North County Communications Corporation of California (NCCC) appeals a trial court order denying its motion to vacate three post- judgment orders in this long-running litigation. NCCC first claims an order amending the judgment to include alter ego judgment debtors is void because NCCC and others were not served with the motion to amend. However, NCCC was the plaintiff in this matter and does not dispute that the motion was properly served on its counsel of record. In any case, NCCC forfeited its arguments regarding service by making a general appearance before the order amending the judgment was issued, both filing a request for continuance and appearing at the motion hearing. In addition, although NCCC claims there were defects in service as to other parties, NCCC cannot raise arguments on behalf of parties who did not appeal. NCCC also claims the order amending the judgment to add alter egos is void because the trial court purportedly “combined” a prejudgment sanctions order and a postjudgment attorney fee order into a new judgment. NCCC claims this went beyond the court’s statutory authority and the relief requested in the motion to amend. NCCC fails to show that the trial court improperly combined judgments or that its liability was in any way affected by the form of the court’s order. NCCC next argues a second order amending the judgment to include postjudgment enforcement costs is void because the judgment creditor’s motion was not properly served. NCCC forfeited this argument by opposing the motion on its merits without challenging service. 2  NCCC claims a third order amending the judgment is void because it incorporated the two earlier orders amending the judgment. Because NCCC has not shown any defect with these earlier orders, it also has not shown any defects with the third order. Finally, NCCC raises two new arguments that were not raised in the trial court. We thus decline to address these newly raised issues. For these reasons, as explained below, the order denying the motion to vacate is affirmed. I. FACTUAL AND PROCEDURAL BACKGROUND A. Proceedings Through Final Judgment In 2011, an entity identifying itself as “North County Communications Corporation” (NCC) filed this lawsuit against Vaya Telecom, Inc. In July 2014, the trial court entered discovery sanctions against NCC and Todd Lesser, the president of NCC. NCC appealed that order, and this court affirmed. (North County Communications Corporation v. Vaya Telecom, Inc. (Dec. 8, 2015, D066629) [nonpub. opn.].)1 In November 2014, the trial court issued an order denying Vaya’s motion for summary judgment and allowing NCCC to amend the complaint to clarify that it was the proper plaintiff, not NCC. The order states, in part: “The Court finds plaintiff may amend its complaint to name the appropriate entity, North County Communications Corporation of California. The inadvertent mistake of failing to include the 1 We grant Phillips’s request for judicial notice of this court’s prior opinions in Nos. D066629, D068170, and D069954, to the extent we have relied on them in this opinion. We decline to take judicial notice of the other material in Phillips’s request as it is unnecessary to our resolution of this appeal. 3  words ‘of California’ to the name of plaintiff was inconsequential and resulted in no prejudice to defendants [sic]. “The Court acknowledges Mr. Lesser’s certification that all discovery conducted in this action applies in all legal respects to North County Communications Corporation of California. “Plaintiff is directed to file an amendment to the Complaint naming North County Communications Corporation of California as the appropriate plaintiff in this action within five court days of the Court’s ruling herein.” In accordance with this order, NCCC filed an amendment stating, “North County Communications Corporation of California hereby amends its Complaint to name North County Communications Corporation of California as the appropriate plaintiff in this action.” In April 2015, the trial court entered final judgment against NCCC. NCCC appealed, and this court affirmed. (North County Communications Corporation of California v. Vaya Telecom, Inc. (July 26, 2016, D068170) [nonpub. opn.].) In January 2016, the trial court awarded $504,507.93 in costs and attorney fees against NCCC and entered an amended final judgment including this award. NCCC appealed the fee award, and this court affirmed. (North County Communications Corporation of California v. Vaya Telecom, Inc. (Nov. 30, 2016, D069954) [nonpub. opn.].) B. Order Amending the Judgment to Add Alter Egos In January 2019, Vaya filed a “Motion to Amend Sanctions Order and Judgment” to add alter ego judgment debtors, noticing a hearing for May 3, 2019. The motion identified the “Plaintiff/Judgment Debtor” as “North County Communications Corporation,” and argued that NCCC, Lesser, HFT, Inc., and Jartel, Inc., should be added as alter egos of “North County 4 Communications Corporation.” Vaya argued, “As revealed in his deposition testimony, it is unclear even to Mr. Lesser, the sole owner and principal of both companies, whether [North County Communications Corporation] or North County Communications Corporation of California was the plaintiff/judgment debtor in this action. He used the two names interchangeably; both should be judgment debtors here.” On March 14, 2019, Vaya served its motion on counsel of record for the plaintiff. On April 30, 2019, NCCC filed an ex parte application seeking a continuance of the motion hearing. That application identified the plaintiff as “North County Communications Corp of California,” and counsel wrote that he was serving as attorney for “North County Communications et al.” The application did not argue that Vaya’s motion had been improperly served. On May 2, counsel appeared for NCCC at a hearing on the ex parte application. The court denied NCCC’s request for additional time to respond to motion. The minutes reflect the hearing was not reported, and NCCC has not submitted a settled statement summarizing the proceedings. The next day, the court held a hearing on Vaya’s motion to amend the judgment. Counsel appeared for NCCC, and Lesser appeared without counsel. The court granted Vaya’s motion to amend, finding it unopposed. The minutes reflect the hearing was not reported, and NCCC has not submitted a settled statement summarizing these proceedings, either. On May 20, the court entered an order amending the judgment to include NCCC, NCC, Lesser, HFT, and Jartel. The amended judgment noted both the order imposing $92,966.45 in sanctions and the original judgment, which included $504,507.93 in attorney’s fees and costs. This first order amending the judgment states: 5  “1. Judgment is entered in favor of Judgment Creditor and against North County Communications Corporation, North County Communications Corporation of California, Todd Lesser, HFT, Inc., and Jartel, Inc. on all causes of action set forth in the Complaint, and as further set forth in the Statement of Decision filed with this Court. “2. Judgment is entered in favor of Judgment Creditor and against North County Communications Corporation, North County Communications Corporation of California, Todd Lesser, HFT, Inc., and Jartel, Inc. for the total amount of $597,474.38, which includes the attorney’s fees and costs awarded in the two prior judgments (attached as Exhibits A and B hereto). “Jurisdiction is reserved by this Court to make such other orders as may be necessary to carry out this Judgment and to address other matters between the parties relating to this proceeding that may arise.” NCCC, NCC, Lesser, HFT, and Jartel—represented by the same attorney—appealed. The appellants abandoned their appeal before the record was filed. C. Orders Amending the Judgment to Add Enforcement Costs In January 2020, Vaya filed a motion to recover its costs of enforcing the judgment. Vaya served counsel for NCCC by mail, and NCCC filed an opposition on March 2.2 This opposition did not raise any arguments about 2 On our own motion, we augment the record to include the following documents filed or lodged in the case in superior court: (1) NCCC’s March 2, 2020, filing; (2) NCCC’s May 26, 2020, filing; (3) June 12, 2020, minutes of the trial court; (4) August 7, 2020, minutes of the trial court; (5) NCCC’s August 26, 2020, filing; and (6) the August 26, 2020, notice of limited representation filed by Catalina Neff. (See Cal. Rules of Court, rule 8.155(a)(1); State Comp. Ins. Fund v. WallDesign Inc. (2011) 199 Cal.App.4th 1525, 1529, fn. 1.) 6 deficiency of service. On May 13, counsel for NCCC appeared at a motion hearing The court granted Vaya’s motion, stating there was no opposition. Although not entirely clear from the record or the parties’ briefing, it seems the court later decided to reconsider its ruling. On May 26, NCCC appears to have refiled the same opposition it filed on March 2. On June 12, counsel for NCCC appeared at a status conference at which, among other issues, the court reset the hearing on the motion to amend judgment for August 7. The minutes of the August 7 hearing reflect that counsel was allowed to appear for NCCC although “he was previously withdrawn as counsel of record.” The court “hear[d] argument on [Vaya’s] motion to amend judgments to include costs of enforcing judgment” and granted NCCC’s request for continuance. On August 26, NCCC filed another opposition to the motion. This opposition does not raise any arguments about deficient service. That same day, a new attorney filed a notice of limited representation for NCCC. On September 9, NCCC appeared through counsel. The court granted Vaya’s motion to amend, finding NCCC’s oppositions were untimely and, in any event, lacked merit. On September 21, 2020, the court entered a second order amending the judgment, adding $759,679.89 to the existing liability of $597,474.38 for a total of $1,357,154.27. NCCC did not appeal that order. Following the second order amending the judgment, Vaya filed a notice and acknowledgment of assignment of the judgment to Epps & Coulson, LLP. Epps & Coulson then filed a notice and acknowledgment of assignment to Phillips. 7  On August 2, 2022, the trial court entered a third order amending the judgment, including $431,124.87 in additional costs of enforcement for a total of $1,788,279.14. NCCC did not appeal that order. D. Motion to Vacate In January 2024, NCCC filed a “Motion to Vacate Orders as Void” under Code of Civil Procedure3 section 473, subdivision (d), contending that the first, second, and third orders amending the judgment and all “related and subsequent orders” are void. NCCC argued the trial court lacked jurisdiction to enter the first order amending the judgment because Vaya had not properly served NCCC. NCCC also claimed the order was void because it granted relief beyond that requested in Vaya’s motion to amend by “combin[ing]” the 2014 sanctions order and the final judgment into a new judgment. NCCC further argued the second order amending the judgment is also void because Vaya did not serve its motion to amend on NCCC, rather than its counsel, as required by section 684.020. Finally, NCCC argued the third order amending the judgment was “void because it rests on the First Amended Judgment and Second Amended Judgment.” After hearing argument, the trial court denied the motion to vacate. The minute order states, “The Court finds no basis whatsoever to vacate the prior rulings that have been thoroughly litigated on previous occasions.” Lesser and NCCC both appealed this order, although Lesser later abandoned his appeal. 3 Further statutory citations are to the Code of Civil Procedure. 8  II. DISCUSSION A. Standard of Review “Under Code of Civil Procedure section 473, subdivision (d), a trial court may set aside a void judgment or order on a motion of either party.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1009.) “The denial of a motion to vacate is reviewed for an abuse of discretion . . . .” (Fernandes v. Singh (2017) 16 Cal.App.5th 932, 940 (Fernandes).) But “[e]valuating an order or judgment as void is a question of law, reviewed de novo.” (Nixon Peabody LLP v. Superior Court (2014) 230 Cal.App.4th 818, 822.) B. First Order Amending the Judgment 1. Allegedly Defective Service NCCC claims “Vaya did not serve any of appellant [NCCC], Todd Lesser, HFT, Inc., [or] Jartel, Inc. with its First Motion to Amend.” According to NCCC, this renders the court’s first order amending the judgment “void” due to lack of fundamental jurisdiction over these parties. As an initial matter, NCCC represents that NCC (the entity without the “of California” in its name) was the plaintiff in this matter, not NCCC. In making this argument, NCCC neglects to acknowledge that the complaint was amended in 2014 “to name North County Communications Corporation of California as the appropriate plaintiff in this action.” NCCC not only omitted this fact from its opening brief, but failed to include the court’s order authorizing the amendment or the amendment itself when it designated the 9 appellate record.4 The assertion that NCCC is not the plaintiff is inaccurate, and we need not address NCCC’s specious suggestions to the contrary. (Cf. Fernandes, supra, 16 Cal.App.5th at pp. 940–941 [“[F]ailure to state the facts fairly forfeits” evidentiary arguments.].) NCCC’s status as plaintiff defeats its arguments regarding defective service. Contrary to NCCC’s argument, the motion to amend did not “initiate[ ] proceedings against” NCCC. Rather, NCCC was the plaintiff who invoked the court’s jurisdiction in the first instance.5 Vaya served its motion on counsel of record for plaintiff, which was NCCC. NCCC does not claim that this manner of service was defective. Accordingly, NCCC fails to show the motion was not properly served. But even if there were some defect in service that could affect the court’s fundamental jurisdiction, NCCC forfeited its right to challenge service by making a general appearance between the filing of the motion to amend and the court’s order. “Where a person makes a general appearance, such appearance operates as a consent to jurisdiction of his person.” (City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 679 (Horspool); see § 410.50, subd. (a) [“A general appearance by a party is equivalent to personal service of summons on such party.”].) NCCC—which, notably 4 Phillips filed a motion to augment the record with these and other documents. Although we previously treated that motion as one to lodge exhibits, we think it more appropriate to augment the record with respect to these two documents. (See Cal. Rules of Court, rule 8.155(a)(1).) 5 Given the unclear and apparently shifting representations about NCC and NCCC, we express no opinion as to NCC’s status as plaintiff, to the extent it might be considered a separate entity. We merely find that the formal amendment of the complaint and NCCC’s failure to fairly represent the facts of this case forecloses NCCC’s claim that it is not the plaintiff. 10 identified itself as “plaintiff”—filed an ex parte application seeking a continuance of Vaya’s motion. NCCC did not claim defective service in this application, and “[a] request for a continuance constitutes a general appearance because the relief could only be requested on a theory that a defendant was submitting to general jurisdiction of the court.” (Horspool, at p. 679.) As to the other parties, NCCC has not shown it has a cognizable interest in challenging the first order amending the judgment on their behalf. “Where only one of several parties appeals from a judgment, the appeal includes only that portion of the judgment adverse to the appealing party’s interest, and the judgment is considered final as to the nonappealing parties.” (Horspool, supra, 223 Cal.App.4th at p. 678.) “An appellant must show prejudicial error affecting his or her interest in order to prevail on appeal. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 244, p. 250.) An appellant cannot urge errors which affect only another party who does not appeal.” (In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261; see also Paterra v. Hansen (2021) 64 Cal.App.5th 507, 528 [although a “stranger” may challenge a void order, it still “must point to ‘ “some right or interest . . . [that] would be affected by . . . enforcement” ’ of the void order” against it].) NCCC is the only party that moved to vacate and the only party before us in this appeal. NCCC does not provide any reason it should be allowed to raise arguments on behalf of other parties. Thus, we decline to consider these arguments. 2. “Combining” Judgments NCCC also argues the first order amending the judgment is a “void order for being in excess of the court’s jurisdiction because it was not allowed to combine money judgments pursuant to . . . section 187, or the” Enforcement of Judgments Law (EJL; §§ 680.010 to 724.260). We fail to see 11 how the trial court improperly “combined money judgments,” and NCCC offers no authority for this assertion. While the court added together the dollar amounts of the pre-judgment sanctions order and the post-judgment attorney fee award when explaining the effect of the amendment, that did not change the nature of NCCC’s liability. Section 187 permits a court to exercise its jurisdiction through “any suitable process or mode of proceeding . . . which may appear most conformable to the spirit of” the Code of Civil Procedure. NCCC does not show that the form of the trial court’s order amending the judgment was unsuitable or contrary to the spirit of the Code of Civil Procedure. NCCC claims that, as a result of the first amended judgment, the judgment debtors became “liable for $597,474.38 [record citation] in addition to the $504,507.93 Final Judgment [record citation], and $92,966.45 Sanctions Order.” NCCC fails to cite any authority or to explain this assertion, thereby forfeiting it. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 (Falcone) [“We are not bound to develop appellants’ arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contentions as [forfeited].”].) This contention is further belied by the second and third orders amending the judgment, which do not purport to double the original liability of $597,474.38. Similarly, NCCC offers no support for its claim that the relief granted went beyond the scope of Vaya’s motion to amend. Vaya asked the court to amend the “final judgment . . . in the total amount of $504,507.93” and the “order imposing $92,966.45 in discovery sanctions” to include alter egos. The court granted that relief and nothing more. 12 C. Second Order Amending the Judgment NCCC argues the second order amending the judgment is void because Vaya failed to serve its motion as required by the EJL. Vaya’s motion was brought under sections 685.040, 685.070, and 685.080 of the EJL. In general, “when a writ, notice, order, or other paper is required to be served under [the EJL] on the judgment debtor, it shall be served on the judgment debtor instead of the attorney for the judgment debtor.” (§ 684.020, subd. (a).) Vaya served its motion on counsel for NCCC, not NCCC itself. But assuming this rendered service defective,6 as Phillips correctly notes, the issue of defective service “was never raised, not in opposition . . . and not in the debtors’ many filings from 2020 to 2024.” We thus agree with Phillips’s contention that this argument was “forfeited.” As detailed above, NCCC filed oppositions to Vaya’s second motion to amend on March 2, May 26, and August 26, 2020. None of these filings raised arguments about the sufficiency of service. Moreover, NCCC appeared through counsel on May 13, June 12, August 7, and September 9, 2020. NCCC does not claim, and the minutes of these hearings do not reflect that NCCC made any arguments regarding service during these court appearances. NCCC claims failure to serve the motion in accordance with the EJL meant the trial court lacked personal jurisdiction over NCCC. We need not address the effect of failure to properly serve a motion on a party in accordance with the EJL as NCCC’s argument fails on its own terms. “[A] 6 We note that where a party has actual notice of the filing, substantial compliance with service of process is often sufficient. (See, e.g., Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1436–1437.) But we need not and do not address whether service was sufficient here. 13 general appearance waives any objection to defects in service.” (Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1688.) “[F]iling an opposition on the merits” constitutes a general appearance, (Ibid.), as does making court appearances and taking part in proceedings. (See, e.g., Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd. (1993) 12 Cal.App.4th 74, 89.) NCCC thus forfeited its service-related arguments by appearing and litigating the second motion to amend on its merits. Finally, NCCC argues the court could only have awarded costs for enforcement of the sanctions order and the final judgment “by separate memoranda or noticed motions.” NCCC did not make this argument in its motion to vacate. In general, “issues not raised in the trial court will not be considered on appeal.” (Transcontinental Ins. Co. v. Insurance Co. of the State of Pennsylvania (2007) 148 Cal.App.4th 1296, 1309.) We thus decline to consider NCCC’s new argument. D. Third Order Amending the Judgment NCCC argues, “The court acted in excess of its jurisdiction when it entered the Third Amended Judgment because it added costs to the void Second Amended Judgment.” Because we find the second order amending the judgment is not void, we find the third order amending the judgment is not void either. E. Additional Issues NCCC raises two issues not encompassed in the motion to vacate. NCCC first claims the notices of acknowledgment of assignment reflecting the assignment of the judgment to Phillips and her predecessor failed to comport with statutory requirements. This issue was not raised in the motion to vacate. NCCC nonetheless claims it is challenging Phillips’s “standing” as the assignee of record and cites caselaw holding that standing 14 can be raised at any time because it affects jurisdiction. Even so, NCCC fails to show that Phillips’s status as assignee of record is relevant to the appeal. NCCC does not argue that the alleged deficiencies in the notices of acknowledgment affected the trial court’s jurisdiction to enter any of the orders amending the judgment. NCCC has thus forfeited such arguments. (See, e.g., Asaro v. Maniscalco (2024) 103 Cal.App.5th 717, 728, fn. 4 [appellant forfeits arguments not briefed].) Second, NCCC argues, based on the date the judgments were entered in the trial court, that “the time to enforce the Sanctions Order expired on 7/14/24 and the time to enforce the Final Judgment expired on 4/8/25.” The notice of appeal in this case was filed in March 2024, and we “may not generally consider events that postdate the [order] being challenged.” (Haidet v. Del Mar Woods Homeowners Assn. (2024) 106 Cal.App.5th 530, 539, fn. 5.) In any event, NCCC fails to explain how this affects the issues on appeal, forfeiting any arguments it may have intended. (See Falcone, supra, 164 Cal.App.4th at p. 830 [undeveloped arguments are forfeited].) 15  III. DISPOSITION The order is affirmed. Phillips is entitled to recover her costs on appeal. KELETY, J. WE CONCUR: MCCONNELL, P. J. DO, J. 16