Koresko v. Mountain Valley Assn.
Filed 12/12/12
Koresko v. Mountain Valley Assn. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
JOHN J. KORESKO,
Plaintiff and
Appellant,
v.
MOUNTAIN VALLEY ASSOCIATION,
Defendant and
Respondent.
F064852
(Super.
Ct. No. CV-271013)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
John J.
Koresko, in pro. per., for Plaintiff and Appellant.
Kulik,
Gottesman & Siegel and Joseph R. Serpico for Defendant and Respondent.
-ooOoo-
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
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.â€
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.
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
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
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.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Levy, J. and Poochigian, J.
name="_ftn2" title="">[1] Appellant’s
request for judicial notice of his appendix and reply appendix is granted.
