Filed 3/8/24 Farley v. Nexgen Lift Trucks CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
NINA FARLEY,
Plaintiff and Respondent, E080467
v. (Super.Ct.No. CIVDS1800721)
NEXGEN LIFT TRUCKS LLC, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Khymberli S. Y.
Apaloo, Judge. Affirmed.
Bhakta Law Firm and Ankit H. Bhakta for Defendant and Appellant.
Valiant Law, Raymond Babaian, and Tikran Babayan for Plaintiff and
Respondent.
1 Nina Farley brought this action against her alleged former employers, Dustin
Elijah Rivera and Crown City Forklift, Inc. (Crown City). She obtained a default
judgment against both defendants but was unable to collect on it. Farley then moved to
amend the judgment to add Nexgen Lift Trucks LLC (Nexgen) as a judgment debtor.
The trial court granted that motion, and Nexgen moved the court to reconsider the ruling.
The court denied the motion for reconsideration. Nexgen appeals from the amended
judgment, arguing that the court erred by granting Farley’s motion to amend the
judgment and denying its motion for reconsideration. We affirm.
BACKGROUND
I. Operative Complaint, Default Judgment, and Attempts to Enforce the Judgment
According to the first amended complaint (FAC), Rivera owned and operated
Crown City, a forklift service and repair business. Farley was employed by Crown City
and Rivera from August 2016 to May 2017. The FAC alleged causes of action for
assault; hostile work environment (sexual harassment); failure to prevent discrimination,
harassment, and retaliation; negligence; wrongful constructive termination in violation of
public policy; failure to provide accurate itemized wage statements; intentional infliction
of emotional distress; and negligent infliction of emotional distress.
The superior court clerk entered the default of Rivera and Crown City in August
2018. In March 2019, the trial court entered a default judgment against Crown City and
Rivera in the amount of $990,052.89. The court issued a writ of execution in July 2019.
Farley was unable to collect on the default judgment through the writ of execution, and
2 the court ordered Rivera to appear for a judgment debtor’s examination. He failed to
appear for the examination. In December 2020, the court ordered that a civil bench
warrant for Rivera in the amount of the default judgment be issued upon filing of a signed
affidavit and processing fee.
II. Motion to Amend the Judgment
Farley moved to amend the judgment in February 2022. Her motion sought to add
Nexgen as a judgment debtor. She argued that Nexgen was liable as (1) the alter ego of
Rivera or Crown City, (2) the successor to Crown City under Labor Code section 200.3, 1 and (3) the successor to Crown City under the successor corporation theory.
Farley submitted evidence that Rivera registered Nexgen with the California
Secretary of State in March 2019, three days after entry of the default judgment in this
case. The Secretary of State’s records showed that Crown City was suspended. Rivera
was both Crown City’s and Nexgen’s agent for service of process. Nexgen’s registered
business address was two miles from Crown City’s registered business address. But a
search on Google and Yelp showed Crown City and Nexgen at the same address
(Nexgen’s registered business address). According to Crown City’s Yelp page, it was a
forklift service, sales, and repair company. According to Nexgen’s website, it was a
forklift service, sales, and custom fabrication shop. In addition, Nexgen’s website stated
that it had “‘been providing the best services to [the] High Desert, Inland Empire and
1 Farley’s motion referred to the “continuity of enterprise theory” (capitalization and boldface omitted), but the California case law on which she relied uses the term “‘successor corporation’ theory.” (McClellan v. Northridge Park Townhome Owners Assn. (2001) 89 Cal.App.4th 746, 753 (McClellan), italics omitted.)
3 surrounding areas since 2007.’” (Boldface and italics omitted.) Crown City was
registered with the Secretary of State in 2007. Nexgen’s Facebook page contained photos
of machines with crown logos on them. Nexgen listed those machines for sale on its
Facebook page in December 2020.
Farley served her moving papers by mail on Nexgen, Crown City, and Rivera, but
none of those parties opposed the motion. In April 2022, the court granted the motion to
amend the judgment and ordered Farley to prepare a proposed order and proposed
amended judgment. Farley served the proposed order and proposed amended judgment
by mail on Nexgen, Crown City, and Rivera.
III. Motion for Reconsideration and Objection to the Proposed Amended Judgment
In May 2022, Nexgen filed an objection to Farley’s proposed amended judgment.
The objection argued that adding Nexgen to the judgment would violate its due process
right to contest the merits of the action and to contest the application of the alter ego
doctrine. Nexgen asserted that Farley should have “formally served” it with notice of the
motion to amend the judgment. Nexgen stated that it intended to move for
reconsideration of the ruling on the motion to amend the judgment, and it had already
reserved a hearing date for that motion.
Several days later, Nexgen filed the motion for reconsideration. Nexgen asked the
court to vacate its ruling and permit Nexgen to brief the alter ego issue before rehearing
and ruling on it. Nexgen submitted Rivera’s declaration to “lend credence to the fact that
a fully-noticed and briefed hearing should be conducted on the issue of whether the alter
4 ego doctrine should apply.” According to that declaration, Rivera is the sole manager
and sole member of Nexgen. He was an officer and director of Crown City for “many
years,” but he was neither one when Crown City employed Farley. He also was not an
owner of Crown City at that time. His wife was the sole owner of Crown City beginning
in 2014 or 2015. He and his wife separated in 2015. He had not commingled his
personal assets with the assets of Nexgen and had not diverted Nexgen’s funds or assets
for nonbusiness uses. Nor had he commingled the funds or assets of Crown City with
those of Nexgen. Nexgen and Crown City had different business licenses, employer
identification numbers, employees, owners, directors, and officers, and the two
companies paid taxes separately.
Rivera also stated that he first learned of this action in 2019, after the court had
entered the default judgment against him. He asked his wife about the lawsuit, and she
told him that she was hiring attorneys to defend the case and “that it would be taken care
of.” He received “another notice” in the mail regarding the lawsuit on some unspecified
date, and he called the phone number for Farley’s counsel on the notice. Farley’s counsel
told him that he “had no options to get out of the default” because seven months had
passed since the court entered the default judgment. Rivera then looked up the next
hearing date, which was a hearing regarding the status of the judgment debtor
examination in September 2020. He appeared at that hearing but was not allowed “to
plead [his] case,” and the court set a new hearing. He arrived late for that next hearing
because it took him over an hour to clear security at the courthouse. The clerk informed
5 him that the court had already called his case and issued a bench warrant. When he
received a “new legal notice” with Nexgen’s name on it in April 2022, he finally
contacted an attorney. If Rivera had known about the lawsuit before his default was
entered, then he would have denied the allegations against him and defended himself.
Nexgen argued that because Crown City and Rivera had defaulted, all of the
foregoing information constituted new facts or circumstances that were not before the
court at the time of the prior ruling. Moreover, Nexgen argued, Farley had not “provided
formal service,” in violation of Nexgen’s due process rights. Nexgen acknowledged that
Farley had served the motion to amend the judgment by mail, but it asserted that mailing
a document “typically is insufficient service of process for a party who has not yet
appeared in the action.”
Farley opposed the motion for reconsideration, arguing that Nexgen had not
presented any new facts, circumstances, or law justifying reconsideration. Moreover,
Nexgen had not offered a satisfactory explanation for its failure to oppose the motion to
amend the judgment, and Nexgen did not cite any authority for the proposition that
“‘formal service’” on it was necessary.
In its reply brief, Nexgen argued that the “service issues,” Rivera’s lack of
representation, and his failure to understand legal documents constituted new or different
facts or circumstances warranting reconsideration. Nexgen further asserted that due
process required compliance with the statutory procedures for service of process to
establish personal jurisdiction. Nexgen continued to argue that the court should vacate its
6 ruling on the motion to amend the judgment and set a new briefing schedule so that
Nexgen could formally oppose the motion.
IV. Entry of the Amended Judgment and Denial of the Motion for Reconsideration
In July 2022, the court entered the amended judgment stating that Crown City,
Rivera, and Nexgen were jointly and severally liable to Farley. On the same date, the
court signed and filed Farley’s proposed order granting the motion to amend the
judgment. The court entered the amended judgment after the parties had fully briefed the
motion for reconsideration but before the court heard and ruled on the motion.
The court heard the motion for reconsideration in October 2022. The court
explained that its tentative ruling was to deny the motion for reconsideration, because
Nexgen had not offered new or different circumstances and a satisfactory reason for
failing to produce any new information earlier. The court noted that Farley served the
motion to amend the judgment on Nexgen, and there was no evidence that there was not
“actual service.” Rather, Nexgen argued that Farley did not serve it with a summons and
complaint. The court reasoned that service of process was unnecessary. The court also
observed: “And I don’t know why Nexgen didn’t file an opposition or appear at the prior
hearing. Just didn’t happen.”
The court took the matter under submission and issued a minute order denying the
motion for reconsideration. It reasoned that it had no jurisdiction to reconsider its prior
ruling because it had already entered the amended judgment. The court also concluded
that Nexgen had not offered any new information, and Nexgen did not argue that it never
7 received the motion to amend the judgment. Instead, Nexgen argued that Farley did not
serve it with a summons and complaint, but that was not necessary to add an alter ego to
a judgment.
DISCUSSION
I. Timeliness of the Appeal and the Certificate of Interested Entities or Persons
As a threshold matter, Farley argues that Nexgen’s notice of appeal is untimely.
She also argues that we should strike Nexgen’s opening brief or dismiss the appeal
because Nexgen neglected to file a certificate of interested entities or persons. Both
arguments lack merit.
A. Timeliness of the Appeal
Rule 8.104 of the California Rules of Court generally prescribes three possible
deadlines for filing the notice of appeal: (1) 60 days after the court clerk serves a notice
of entry of judgment or a filed-endorsed copy of the judgment; (2) 60 days after the
appellant serves or is served by a party with a notice of entry of judgment or a filed-
endorsed copy of the judgment; or (3) 180 days after the court enters the judgment. (Cal.
Rules of Court, rule 8.104(a)(1)(A)-(C); unlabeled rule citations are to the California
Rules of Court.) The earliest of those three deadlines governs. (Rule 8.104(a)(1).) For
purposes of the rule, the term “‘judgment’ includes an appealable order.” (Rule
8.104(e).) “The entry date of an appealable order that is entered in the minutes is the date
it is entered in the permanent minutes. But if the minute order directs that a written order
be prepared, the entry date is the date the signed order is filed.” (Rule 8.104(c)(2).)
8 Nexgen timely appealed under those rules. It filed the notice of appeal on January
6, 2023, stating that it was appealing from the judgment or order entered on July 11,
2022. That was the date on which the court entered the amended judgment. There is no
evidence in the record that the court clerk or a party served a notice of entry of the
amended judgment or a filed-endorsed copy of the amended judgment. We thus presume
the applicable deadline was 180 days after entry of the amended judgment. (Annette F. v.
Sharon S. (2005) 130 Cal.App.4th 1448, 1456.) The 180-day period expired on January
9, 2023 (180 days after July 11, 2022, extended to the next business day). Accordingly,
Nexgen timely filed the notice of appeal on January 6.
Farley’s arguments to the contrary are unavailing. She argues that the period to
appeal started “as early as” April 14, 2022, the date of the hearing and the minute order
granting her motion to amend the judgment. She cites no authority for the proposition
that the order granting the motion to amend the judgment was appealable. (See Hood v.
Verdugo Lumber Co. (1933) 219 Cal. 558, 559 [order granting motion to correct the
judgment “is nonappealable, the same being reviewable on appeal from the [corrected]
judgment”].) Even if the order were separately appealable, that would not change our
conclusion. The minute order granting the motion to amend the judgment expressly
directed Farley to prepare a proposed order, so it was entry of that signed, written order
that started the time to appeal. (Rule 8.104(c)(2).) The court entered that signed order
and the amended judgment on the same date, and there is no evidence that the clerk or a
party served a notice of entry of the order. The same 180-day period therefore applied,
9 and it expired on the same date that the period to appeal from the amended judgment
expired.
Farley alternatively argues that the period to appeal started on May 2, 2022, when
Nexgen filed its objection to the proposed amended judgment. She asserts that the
objection showed that Nexgen had notice of the court’s ruling on the motion to amend the
judgment. She does not explain why mere notice of the ruling was relevant or how notice
alone started the period to appeal under rule 8.104. It did not.
Farley further argues that Nexgen had to appeal no more than 60 days after the
order denying Nexgen’s motion for reconsideration, a period that expired on December 5,
2022. An order denying a motion to reconsider a nonappealable order is also
nonappealable (I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331), so such
an order is reviewable on appeal from the judgment. (Doran v. Magan (1999) 76
Cal.App.4th 1287, 1292 [interlocutory or interim nonappealable orders generally are
reviewable on appeal from the final judgment].) The time to appeal after entry of the
amended judgment therefore governs, not the claimed December 5 deadline.
Assuming that the order granting the motion to amend the judgment were
appealable, Farley still is incorrect. A motion to reconsider an appealable order may
extend the normal time to appeal from the underlying order, but it may not shorten the
time to appeal. (Rule 8.108(a), (e)(1)-(3) [extending the period to appeal by 30, 90, or
180 days after certain triggering events].) The claimed December 5 deadline would
10 shorten Nexgen’s normal time to appeal under rule 8.104. The deadline under rule 8.104
consequently governs. (Rule 8.108(a).)
For all of these reasons, we conclude that Nexgen timely appealed.
B. Certificate of Interested Entities or Persons
Rule 8.208 requires the parties to include a certificate of interested entities or
persons in their principal brief on appeal. (Rule 8.208(d)(1).) If the appellant fails to do
so, the clerk must notify the appellant that they have 15 days to file the certificate and
that the court may strike their opening brief or dismiss the appeal if they fail to comply.
(Rule 8.208(d)(3).) We may impose those sanctions if the appellant fails to file the
certificate after receiving the clerk’s notice. (Rule 8.208(d)(4).)
Nexgen did not include the certificate of interested entities or persons in its
opening brief. But the clerk did not notify Nexgen of that failure, give it 15 days to file
the certificate, or warn it that failure to do so could result in sanctions. In any event, after
Farley raised the omission in her respondent’s brief, Nexgen included the certificate in its
reply brief on appeal. Under those circumstances, we decline to exercise our discretion to
strike the opening brief or dismiss the appeal.
Nexgen argues that the trial court erred by granting the motion to amend the
judgment. We are not persuaded that the court prejudicially erred.
Code of Civil Procedure section 187 authorizes the court to amend a judgment to
add a judgment debtor. (Favila v. Pasquarella (2021) 65 Cal.App.5th 934, 942 (Favila);
11 unlabeled statutory citations are to the Code of Civil Procedure.) That section gives the
court “all the means necessary to carry” its jurisdiction “into effect” and permits the court
to adopt “any suitable process or mode of proceeding,” if there is no statute specifically
pointing out the applicable “course of proceeding.”2
The court may add judgment debtors under several theories, including the alter
ego doctrine and the successor corporation theory. (Favila, supra, 65 Cal.App.5th at
p. 942; McClellan, supra, 89 Cal.App.4th at pp. 753-754.) In addition, the Legislature
recently enacted Labor Code section 200.3, which makes a “successor to a judgment
debtor” liable for any damages owed to the judgment debtor’s former workforce. (Lab.
Code, § 200.3, subd. (a).)
“In general, ‘[w]e presume that the trial court[’s] order is correct, and imply
findings that are necessary to support the judgment.’” (Global Protein Products, Inc. v.
Le (2019) 42 Cal.App.5th 352, 367.) The appellant bears the burden of demonstrating
prejudicial error. (Demara v. The Raymond Corp. (2017) 13 Cal.App.5th 545, 552.) We
review the court’s ultimate decision whether to add a judgment debtor for abuse of
discretion, and we review factual findings necessary to the court’s decision for substantial
evidence. (Favila, supra, 65 Cal.App.5th at p. 943.)
2 Section 187 states in full: “When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”
12 Under the alter ego doctrine, the court may add a new judgment debtor if (1) the
new party is the alter ego of the old party, and (2) the new party controlled the litigation,
“thereby having had the opportunity to litigate, in order to satisfy due process concerns.”
(Toho-Towa Co., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096,
1106.) However, the court may not amend a default judgment to add alter ego judgment
debtors. (Motores De Mexicali, S.A. v. Superior Court (1958) 51 Cal.2d 172, 175-176;
Wolf Metals Inc. v. Rand Pacific Sales Inc. (2016) 4 Cal.App.5th 698, 703-704, 708-709
(Wolf Metals).)
Under the successor corporation theory, corporations “‘cannot escape liability by a
mere change of name or a shift of assets when and where it is shown that the new
corporation is, in reality, but a continuation of the old. Especially is this well settled
when actual fraud or the rights of creditors are involved, under which circumstances the
courts uniformly hold the new corporation liable for the debts of the former
corporation.’” (McClellan, supra, 89 Cal.App.4th at p. 754, italics omitted.) “Generally,
‘“California decisions holding that a corporation acquiring the assets of another
corporation is the latter’s mere continuation and therefore liable for its debts have
imposed such liability only upon a showing of one or both of the following factual
elements: (1) no adequate consideration was given for the predecessor corporation’s
assets and made available for meeting the claims of its unsecured creditors; (2) one or
more persons were officers, directors, or stockholders of both corporations.”’” (Wolf
Metals, supra, 4 Cal.App.5th at p. 705.)
13 Under Labor Code section 200.3, a “successor to a judgment debtor shall be liable
for any wages, damages, and penalties owed to any of the judgment debtor’s former
workforce pursuant to a final judgment.” (Lab. Code, § 200.3, subd. (a).) Successorship
is established by any of the following factors: (1) the entity uses “substantially the same
facilities or substantially the same workforce to offer substantially the same services as
the judgment debtor”; (2) the entity has “substantially the same owners or managers that
control the labor relations as the judgment debtor”; (3) the entity employs “as a managing
agent any person who directly controlled the wages, hours, or working conditions of the
affected workforce of the judgment debtor”; or (4) the entity operates “a business in the
same industry and the business has an owner, partner, officer, or director who is an
immediate family member of any owner, partner, officer, or director of the judgment
debtor.” (Lab. Code, § 200.3, subd. (a)(1)-(4).)
Nexgen argues that the court erred by amending the judgment under the alter ego
doctrine. First, Nexgen points out that it was a default judgment, and Nexgen had no
control over the litigation. Second, Nexgen asserts that holding it liable for Rivera’s
debts amounted to reverse piercing of the corporate veil, not traditional veil piercing, and
an appellate court has rejected reverse piercing (Postal Instant Press, Inc. v. Kaswa Corp.
(2008) 162 Cal.App.4th 1510). Third, Nexgen asserts that because the alter ego doctrine
is equitable in nature, we should consider various circumstances that render it inequitable
to add Nexgen to the judgment.
14 Regardless of whether the court erred under the alter ego doctrine, Nexgen fails to
show that any such error was prejudicial. Farley moved to add Nexgen on the basis of
several theories. But Nexgen does not argue that the court erred under the successor
corporation theory or Labor Code section 200.3. Nexgen does not even explain the
factors that the court considers under those theories. To show a reasonable probability of
a more favorable result in the absence of the claimed error, Nexgen must show that the
court erred under all of the theories on which Farley relied. (See Diaz v. Carcamo (2011)
51 Cal.4th 1148, 1161 [“To establish prejudice, a party must show ‘a reasonable
probability that in the absence of the error, a result more favorable to [it] would have
been reached’”].) Because Nexgen has not made that showing, it has not carried its
burden of establishing prejudice from any error under the alter ego doctrine.
Moreover, Nexgen cannot demonstrate prejudice, because the court properly
amended the judgment under Labor Code section 200.3. Crown City owed Farley
damages pursuant to the March 2019 default judgment, a final judgment. (Lab. Code,
§ 200.3, subd. (a).) Farley presented evidence that Nexgen was operating from the same
address that Crown City used and that the two companies provided forklift services and
sales. In addition, Nexgen’s website claimed that it had been providing its services since
2007—the year that Crown City was registered as an entity with the Secretary of State.
Nexgen did not exist as a corporate entity until March 2019. The record contains
substantial evidence that Nexgen “[u]ses substantially the same facilities . . . to offer
substantially the same services” as Crown City, so there is substantial evidence that
15 Nexgen is Crown City’s successor. (Lab. Code, § 200.3, subd. (a)(1).) Accordingly, the
court’s ruling was correct under at least one theory applicable to the case, even if it was
not correct under the alter ego doctrine. Nexgen therefore cannot carry its burden of
showing that any errors concerning the alter ego doctrine were prejudicial.
III. Motion for Reconsideration
Nexgen argues that the court erred by denying the motion for reconsideration of
the ruling adding Nexgen as a judgment debtor. We disagree.
Section 1008 authorizes a motion for reconsideration of a prior order based on
“new or different facts, circumstances, or law.” (§ 1008, subd. (a).) “[N]ew or different
facts” does not mean merely “new to the trial court.” (New York Times Co. v. Superior
Court (2005) 135 Cal.App.4th 206, 213.) Evidence that was available and easily
obtainable by the moving party at the time of the prior order does not qualify as “new or
different” within the meaning of section 1008. (Ibid.) Moreover, section 1008 contains a
“diligence requirement.” (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th
1192, 1199.) The moving party “must give a satisfactory explanation for the previous
failure to present the allegedly new or different evidence or legal authority.” (Kerns v.
CSE Ins. Group (2003) 106 Cal.App.4th 368, 383.)
An order denying a motion for reconsideration “‘is interpreted as a determination
that the application does not meet the requirements of section 1008. If the requirements
have been met to the satisfaction of the court but the court is not persuaded the earlier
ruling was erroneous, the proper course is to grant reconsideration and to reaffirm the
16 earlier ruling.’” (Randy’s Trucking, Inc. v. Superior Court of Kern County (2023) 91
Cal.App.5th 818, 844 (Randy’s Trucking).) We review an order denying a motion for
reconsideration for abuse of discretion. (California Correctional Peace Officers Assn. v.
Virga (2010) 181 Cal.App.4th 30, 42.)
The court did not abuse its discretion. Rivera’s declaration in support of the
motion for reconsideration attempted to explain why he had not responded to the lawsuit,
how he had belatedly retained counsel, and the claimed distinction between Crown City
and Nexgen. But none of that information qualified as new for purposes of section
1008—it was not unavailable or unobtainable at the time of the ruling on the motion to
amend the judgment. Nor did Nexgen give a satisfactory explanation for failing to
produce that information earlier. Nexgen acknowledged that Farley served it by mail
with the motion to amend the judgment, but Nexgen asserted that “formal service” was
required—that is, “service of process.” However, Nexgen never claimed that it did not
actually receive the motion to amend the judgment. Even when the court observed at the
hearing that it did not know why Nexgen failed to oppose the motion to amend, and
nothing indicated that there was not “actual service,” Nexgen did not claim that it never
received the motion to amend.3 The bare assertion in its moving papers that service of
process was required, without any citation to authority or further explanation, did not
establish a satisfactory explanation for failing to produce information earlier.
3 Nexgen asserts for the first time on appeal that it never received the motion to amend the judgment. But none of its citations to the record supports that assertion. Neither Rivera’s declaration nor counsel’s declaration in support of the motion for reconsideration claimed that Nexgen did not receive the motion to amend.
17 Moreover, assuming for the sake of argument that Nexgen did offer new
information and a satisfactory explanation for failing to produce it earlier, the information
did not show that the court erred by granting the motion to amend the judgment. The
motion for reconsideration did not address the relevant factors under all three theories on
which Farley relied in moving to amend the judgment. Nexgen just asked the court to
allow more briefing and a rehearing on the motion to amend the judgment. Without a
showing that the prior ruling was erroneous, the court would have merely granted
reconsideration but reaffirmed its prior ruling. (Randy’s Trucking, supra, 91 Cal.App.5th
at p. 844.) In other words, on this record any error in failing to grant reconsideration was
harmless, because it is not reasonably probable that the court would have vacated its prior
ruling. (See Shaolian v. Safeco Ins. Co. (1999) 71 Cal.App.4th 268, 277 [any error in
denying motion for reconsideration was harmless, given that the underlying order was
correct].)
Nexgen argues that the court erred by concluding that entry of the amended
judgment deprived the court of the power to reconsider the prior ruling. In a related vein,
Nexgen contends that the court erred by entering the amended judgment while the motion
for reconsideration was pending. The court correctly concluded that it could not grant
reconsideration after it had entered the amended judgment. (APRI Ins. Co. v. Superior
Court (1999) 76 Cal.App.4th 176, 182 [“Once the trial court has entered judgment, it is
without power to grant reconsideration. The fact that a motion for reconsideration may
have been pending when judgment was entered does not restore this power to the trial
18 court”].) And as already explained, the court correctly denied the motion for
reconsideration for reasons unrelated to the amended judgment. Thus, Nexgen fails to
show that it was prejudiced by any error in entering the amended judgment while the
motion for reconsideration was pending.
Nexgen additionally argues that the court incorrectly determined that service of a
summons and complaint on Nexgen was not required to add it as a judgment debtor.
Nexgen contends that without service of process, the court had no personal jurisdiction
over it and could not enter a binding judgment against it. The argument lacks merit.
“‘Process’ signifies a writ or summons issued in the course of a judicial
proceeding.” (§ 17, subd. (b)(7).) It is generally true that compliance with the statutory
requirements for service of process are necessary to establish personal jurisdiction over a
defendant. (§ 410.50, subd. (a) [“the court in which an action is pending has jurisdiction
over a party from the time summons is served on him”]; Ruttenberg v. Ruttenberg (1997)
53 Cal.App.4th 801, 808.) The Code of Civil Procedure prescribes four basic methods
for service of a summons in California, including personal service on the defendant.
(§§ 415.10, 415.20, 415.30, 415.50.) “A general appearance by a party is equivalent to
personal service of summons on such party.” (§ 410.50, subd. (a); Serrano v. Stefan
Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1028 (Serrano) [“A court
acquires personal jurisdiction over a party that makes a general appearance in an action
even if no summons is served on that party”].)
19 “A party whose participation in an action is limited to challenging the court’s
personal jurisdiction does not make a general appearance.” (Serrano, supra, 162
Cal.App.4th at p. 1029.) But other forms of participation in the action—such as
contesting the merits of the case, raising objections other than lack of personal
jurisdiction, or seeking affirmative relief—ordinarily amount to a general appearance.
(Ibid.; Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th
1135, 1145.) “Even a nonparty that is not named in the pleadings makes a general
appearance and submits to the court’s personal jurisdiction by participating in the
proceedings in such a manner.” (Serrano, at p. 1029.)
Nexgen made a general appearance in this matter when it filed the motion for
reconsideration. The moving papers argued that Farley should have “provided formal
service” of the motion to amend the judgment, but Nexgen did not argue that the court
lacked personal jurisdiction over it. In any event, the motion for reconsideration was not
limited to contesting the service issue. Nexgen asked the court to vacate its ruling on the
motion to amend the judgment and permit new briefing and a rehearing on the alter ego
issue. For instance, the moving papers stated that “a fully-noticed and briefed hearing
should be conducted on the issue of whether the alter ego doctrine should apply to strip
Nexgen of its corporate existence (which Nexgen contends should absolutely not occur).”
In support of that challenge, Nexgen submitted Rivera’s declaration, which attempted to
address factors relevant to the alter ego doctrine. Under these circumstances, Nexgen
participated in the action by contesting application of the alter ego doctrine, offering
20 supporting evidence, and seeking affirmative relief from the court. It consequently made
a general appearance and submitted to the court’s personal jurisdiction over it before the
amended judgment was entered.
For all of the foregoing reasons, the court did not err by denying Nexgen’s motion
for reconsideration.
DISPOSITION
The amended judgment and the order denying the motion for reconsideration are
affirmed. Farley shall recover her costs of appeal.4 (Rule 8.278(a)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J. We concur:
FIELDS Acting P. J.
RAPHAEL J.
4 Farley asks us to specify that her costs of appeal include reasonable attorney fees. We deny the request. The Rules of Court do not include attorney fees as recoverable costs of appeal. (Rule 8.278(d)(1).) Appellate attorney fees are recoverable if authorized by statute or contract. (Serrano v. Unruh (1982) 32 Cal.3d 621, 637.) But Farley does not identify what statute authorizes her to recover attorney fees. Nor does she claim a contractual right to recover fees. If she has such a statutory or contractual right, she may move for appellate attorney fees in the trial court. (Rule 3.1702(c).)