Opinion
F064852
12-12-2012
JOHN J. KORESKO, Plaintiff and Appellant, v. MOUNTAIN VALLEY ASSOCIATION, Defendant and Respondent.
John J. Koresko, in pro. per., for Plaintiff and Appellant. Kulik, Gottesman & Siegel and Joseph R. Serpico for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. CV-271013)
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J. and Poochigian, J.
APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge.
John J. Koresko, in pro. per., for Plaintiff and Appellant.
Kulik, Gottesman & Siegel and Joseph R. Serpico for Defendant and Respondent.
Plaintiff and appellant, John J. Koresko, challenges a judgment awarding costs to respondent Mountain Valley Association (MVA) as the prevailing party in an action arising out of a private road improvement project. After the trial court struck appellant's first amended complaint (FAC), the trial court awarded MVA $1,121 in costs.
Appellant contends that MVA is not entitled to costs because MVA was named as a nominal defendant and was not properly served with a summons.
However, MVA made a general appearance. Thus, the trial court had jurisdiction over MVA. As a prevailing party, MVA is entitled to costs as a matter of law. Accordingly, the judgment will be affirmed.
BACKGROUND
Appellant owns property in a separate development community and, as an owner, is a member of MVA, an incorporated association. MVA consists of over 200 approximately two and one-half acre lots. These lots were initially connected by unimproved dirt roads. MVA members pay a yearly assessment to maintain these roads. MVA is governed by a board of directors elected by the MVA members.
Between 2005 and 2009, MVA entered into agreements with the Kern County Air Pollution Control District (District) to receive grant funds for road paving projects. The purpose of paving was to reduce dust air pollution. MVA entered into contracts with various contractors during the years in question to pave certain of the dirt roads with ground asphalt shingles.
According to appellant, while he was both an officer and director of MVA, he had reason to believe that the contracts entered into with the paving contractors were oral. Appellant further claims that he determined that the MVA proposals to the District contained false claims. Additionally, appellant asserts that the contractors did not comply with the MVA contracts.
Appellant filed the underlying action in propria persona against the paving contractors, individual past and current members of the MVA board of directors, and the sureties that provided performance bonds for the contractor defendants. Appellant alleged causes of action against the contractors for breach of oral contract, fraud and deceit, negligent construction, strict liability, unjust enrichment, and violations of the contractor's license law and building code. Against the MVA board members, appellant alleged causes of action for breach of fiduciary duty, fraud, and conspiracy.
Appellant purported to be suing on behalf of the State of California and submitted the complaint to the Attorney General for review and intervention. However, both the Attorney General and county counsel declined to intervene. Moreover, appellant did not allege that defendants had violated the False Claims Act (Gov. Code, § 12650 et seq.) as is required to bring an action on behalf of the state as a qui tam plaintiff. (Gov. Code, § 12652.)
In April 2011, appellant served the summons and complaint on certain MVA board members. These board members responded to the complaint by filing a demurrer and motion to strike. The trial court granted the motion to strike and sustained the demurrer, both with leave to amend.
Thereafter, appellant filed the untimely FAC without leave of court. In the FAC, appellant alleged that he was bringing the action for the benefit of MVA and named only the contractors and the sureties that provided the performance bonds as defendants. In his declaration attached to the FAC, appellant stated that he received MVA board approval to "commence litigation in my own name for the benefit of MVA and its members." In the FAC, appellant named MVA as a "nominal defendant."
Appellant sent a copy of the FAC to counsel who had represented the board members in their corporate capacity. On behalf of MVA, counsel filed a demurrer, a motion to strike, and a motion for an order under Corporations Code section 7710, subdivision (c), requiring appellant to post a bond as a condition of pursing his action on behalf of MVA.
Before the hearing on MVA's motions, the trial court held a hearing on a demurrer and motion to strike the FAC that was filed by one of the contractor defendants. MVA filed a notice of joinder to the contractor's motion to strike. The trial court sustained this demurrer and granted this motion to strike. The court ordered MVA's demurrer and motion to strike off calendar without prejudice as moot. Thereafter, judgment was entered in favor of defendants, including MVA. MVA was awarded costs in the amount of $1,121.
Appellant's request for judicial notice of his appendix and reply appendix is granted.
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DISCUSSION
Appellant contends that, because MVA was only a "nominal defendant" and because he did not serve MVA with summons, the trial court lacked jurisdiction over MVA. Therefore, appellant argues, the trial court could not award MVA its costs. According to appellant, he did not intend to serve MVA. Rather, appellant claims that what he mailed to MVA was merely a "courtesy copy" of the FAC.
Nevertheless, when MVA, through its counsel, received the copy of the FAC, MVA filed a demurrer and motion to strike. By so doing, MVA made a general appearance in the action. (Code Civ. Proc., § 1014.)
A general appearance is equivalent to personal service of summons and can make up for a complete failure to serve a summons. (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.) By making a general appearance, a defendant submits to the court's jurisdiction. (Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250.) Thus, the requirement of service of process is dispensed with and any service defects are cured. (Fireman's Fund, supra, 114 Cal.App.4th at p. 1145.) Accordingly, when MVA made a general appearance by filing its demurrer and motion to strike, it became subject to the trial court's jurisdiction.
Appellant's reliance on Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801 to support his contrary position is misplaced. In Ruttenberg, the nominal defendant had notice of the complaint but was not served with the summons and complaint. Under these circumstances, the court found that the trial court lacked jurisdiction over this defendant on the ground that notice did not substitute for proper service. (Ruttenberg v. Ruttenberg, supra, 53 Cal.App.4th at p. 808.) However, unlike here, the defendant in Ruttenberg did not make a general appearance.
Because the trial court had jurisdiction over MVA, it had jurisdiction to enter judgment in MVA's favor. As a defendant against whom the plaintiff obtained no relief, MVA is a prevailing party. (Code Civ. Proc., § 1032, subd. (a)(4).) As the prevailing party, MVA is entitled as a matter of right to recover its costs. (§ 1032, subd. (b); Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) Moreover, appellant cannot contest the amount of costs awarded. Appellant failed to file a motion to tax costs and thus waived his right to object. (Santos v. Civil Service Bd. (1987) 193 Cal.App.3d 1442, 1447.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.