Waypoint Biomedical, Inc. v. Binational Logistics CA4/1

California Court of Appeal · D067776 · 2016-03-30 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. 37-2009-00074103CU-BC-SC
Trial judge: Timothy B. Taylor
Outcome: dismissed — Dismissed.
Area: civil
Panel: Judith L. Haller (author), Alex C. McDonald, Gilbert Nares

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:53Z · confidence high

The trial court dismissed Waypoint’s breach of contract action for failure to bring the matter to trial within the five-year statutory period, rejecting tolling arguments based on its suspended corporate status. The Court of Appeal dismissed the appeal with prejudice because Waypoint, a suspended corporation, failed to obtain a certificate of revivor despite multiple opportunities and extensions.

Ruling reviewed	Standard	The court	The model
Dismissal of appeal for lack of corporate capacity “As a currently suspended corporation, Waypoint is disqualified from prosecuting this appeal. When its corporate rights are suspended or forfeited, a corporation may not prosecute or defend an action and may not appeal from an adverse judgment.”	de novo	correct	agree with court The court correctly applied the well-established principle that a suspended corporation lacks the legal capacity to prosecute an appeal. The authorities cited (Bourhis v. Lord and Reed v. Norman) explicitly support the conclusion that a suspended entity cannot appeal an adverse judgment. The court’s analysis is consistent with California law regarding corporate forfeiture and the necessity of a certificate of revivor to restore standing.
Denial of motion for additional 45-day extension to obtain revivor “We find the grounds for this request to be unsupported and meritless. There is no basis for an extension.”	abuse of discretion	correct	agree with court The court exercised its discretion appropriately by denying the extension. Waypoint had been suspended for seven years and had already been granted a two-week extension after being put on notice. The request for a further 45 days was based on unverified claims of a dispute with the Franchise Tax Board and lacked supporting evidence. Given the long delay and the lack of diligence, the denial was not an abuse of discretion.
Rejection of waiver argument “The record does not support Binational waived its right to assert the issue on appeal. In any event, this court on its own motion has the authority to determine Waypoint has no capacity to bring this appeal because of its forfeited corporation status.”	de novo	correct	agree with court The court correctly noted that the issue of corporate capacity is a jurisdictional matter that can be raised at any time and is not subject to waiver. Even if the opposing party had waived the issue, the court has the inherent authority to dismiss an appeal brought by a party lacking legal capacity. The citation to Grell v. Laci Le Beau Corp. supports the policy rationale for enforcing this rule.

Authorities

relied: Bourhis v. Lord (2013) 56 Cal.4th 320 — A suspended corporation may not appeal from an adverse judgment, but a certificate of revivor retroactively validates an earlier notice of appeal.
relied: Reed v. Norman (1957) 48 Cal.2d 338 — A corporation whose rights are suspended or forfeited may not prosecute or defend an action.
relied: Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300 — The purpose of the rule prohibiting suspended corporations from accessing the courts is to prevent them from enjoying the privileges of a going concern and to induce tax payment.

The appellate opinion: sound — The opinion is sound because it correctly applies established California law regarding corporate capacity and the requirements for a certificate of revivor. The court’s reasoning is thorough, addressing both the legal standard and the specific facts of Waypoint’s delay and lack of diligence.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The trial court dismissed Waypoint Biomedical's breach of contract action against Binational Logistics for failure to bring the case to trial within five years (Code Civ. Proc., § 583.310), noting Waypoint had been a suspended corporation since 2009 and had not obtained a revivor. On appeal, the Court of Appeal did not reach the merits; it dismissed the appeal with prejudice because Waypoint remained a suspended corporation, rejected its waiver argument, and denied its second request for more time to obtain a certificate of revivor.

Ruling reviewed	Standard	The court	The model
Trial court's dismissal of the action under Code Civ. Proc., § 583.310 for failure to bring the case to trial within five years (rejecting Waypoint's tolling arguments) “In January 2015, the trial court dismissed the action for failure to bring the matter to trial within the five-year statutory period. (Code Civ. Proc., § 583.310.)”	unclear	not reached	unsure The appellate court never reviewed the merits of the five-year dismissal because it dismissed the appeal on the threshold ground that a suspended corporation lacks capacity to prosecute an appeal. No standard of review was applied and nothing in the opinion permits evaluation of the trial court's tolling analysis.
Appellate court's determination (on Binational's motion and its own motion) that Waypoint, as a suspended corporation, lacks capacity to prosecute the appeal, and rejection of Waypoint's argument that Binational waived the suspension issue by stipulation in the trial court “When its corporate rights are suspended or forfeited, a corporation may not prosecute or defend an action and may not appeal from an adverse judgment.”	de novo	correct	agree with court Bourhis v. Lord and Reed v. Norman squarely hold that a suspended corporation cannot prosecute an appeal absent revivor, and Waypoint conceded its suspended status and never produced a certificate of revivor. The waiver discussion is brief and conclusory, and the court's statement that it may raise capacity on its own motion is in some tension with Court of Appeal authority treating lack of capacity as a waivable plea in abatement (Color-Vue), but Binational raised the issue within two weeks of the notice of appeal, so the result follows regardless.
Appellate court's denial of Waypoint's second request for a 45-day extension to obtain a certificate of revivor “We find the grounds for this request to be unsupported and meritless. There is no basis for an extension.”	abuse of discretion	correct	agree with court The court had already given Waypoint notice in February 2016 and one extension, the corporation had been suspended since 2009 and on notice of the defect since the motion to dismiss in April 2015, and the extension request was supported only by counsel's unsubstantiated declaration about an unspecified dispute with the Franchise Tax Board without any showing revivor was likely within 45 days. Denying further delay on this record is within the court's discretion over its own calendar and consistent with the purpose of the suspension statutes described in Grell.

Authorities

relied: Bourhis v. Lord (2013) 56 Cal.4th 320 — A suspended corporation may not prosecute an appeal, but a certificate of revivor obtained from the Franchise Tax Board retroactively validates an earlier notice of appeal and permits the appeal to proceed.
relied: Reed v. Norman (1957) 48 Cal.2d 338 — A corporation whose rights have been suspended or forfeited may not prosecute or defend an action or appeal from an adverse judgment.
relied: Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300 — The purpose of the corporate suspension rule is to prohibit the delinquent corporation from enjoying the ordinary privileges of a going concern and to induce it to pay its taxes.
missed: Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599 — Lack of capacity due to corporate suspension is a plea in abatement that can be waived if not raised at the earliest opportunity, and a suspended corporation should ordinarily be afforded a reasonable opportunity to revive; this Court of Appeal decision was not binding on the panel but bears directly on the waiver argument the court rejected in one sentence.

The appellate opinion: sound with gaps — The dismissal rests on settled Supreme Court authority (Bourhis, Reed) and undisputed facts: Waypoint conceded suspension, never obtained a revivor, and received notice plus an extension before dismissal. The opinion disposes of the waiver argument summarily without engaging the plea-in-abatement line of cases (e.g., Color-Vue) or explaining what the trial-court stipulation said, though the result is defensible because Binational raised the issue promptly on appeal.

How this analysis was made · dispute it

Opinion

Filed 3/30/16 Waypoint Biomedical, Inc. v. Binational Logistics 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

WAYPOINT BIOMEDICAL, INC., D067776 Plaintiff and Appellant, v. (Super. Ct. No. 37-2009- 00074103 CU-BC-SC) BINATIONAL LOGISTICS, LLC, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Dismissed.

Philip D. Dapeer, a Law Corporation and Philip D. Dapeer, for Plaintiff and Appellant.

Lawton Law Firm, Dan Lawton and Joseph C. Kracht, for Defendant and Respondent.

Waypoint Biomedical, Inc. (Waypoint) appeals from a judgment in favor of Binational Logistics, LLC (Binational). We dismiss the appeal because Waypoint has been a suspended corporation since 2009. We provided Waypoint with several opportunities to obtain a certificate of revivor, but it has not done so. We deny Waypoint's motion for an additional 45 days to obtain the certificate.

FACTUAL SUMMARY

This appeal arises from Waypoint's breach of contract action against Binational.

In January 2015, the trial court dismissed the action for failure to bring the matter to trial within the five-year statutory period. (Code Civ. Proc., § 583.310.) In rejecting Waypoint's tolling arguments, the court found: "[Waypoint] has had ample opportunity and time since May 2009, when it forfeited its corporate status for failure to pay franchise taxes, to cure its forfeit status, obtain a revivor, and properly prosecute this action. . . . It has not done so."

Waypoint filed its notice of appeal on March 27, 2015. Two weeks later, Binational moved to dismiss the appeal based on Waypoint's forfeited corporate status.

In response, Waypoint conceded it was a suspended corporation, but argued that Binational had waived the suspension and/or that it should be given time to obtain a revivor. On May 1, 2015, this court ordered that Binational's motion be considered in connection with the appeal.

On February 25, 2016, the merits panel issued an order, stating: "Upon reviewing respondent's motion to dismiss and appellant's opposition to the motion, it appears to the court that appellant's corporate status was suspended in 2009 by the Franchise Tax Board for failure to meet tax requirements and there is no showing its corporate status has been revived. The court thus intends to dismiss the appeal with prejudice unless on or before 2 March 10, 2016, appellant files proof it has properly revived its status with the Secretary of State."

On March 8, Waypoint's counsel (Philip Dapeer) filed a request for an extension of time to obtain the revivor. In his declaration, Dapeer said he has been "out of the office" since February 26, 2016 due to his mother's serious illness, and that he would not be returning to work until March 9. He said he is working with his client's accountant to prepare "the necessary paperwork in order to obtain revivor," and that there is a "debate"

between Waypoint's accountant and the Franchise Tax Board regarding the calculation of the tax amount "that might be due in order to obtain revivor." Dapeer stated: "Because of the foregoing, and the length of time declarant understands it will take for the Franchise Tax Board to process a revivor request, declarant requests on behalf of [Waypoint] an extension of time to and including March 21, 2016 within which to obtain revivor and provide proof of revivor to the Court."

The same day, this court granted the motion and issued an order extending the time for Waypoint "to obtain corporate revivor to Monday, March 21, 2016."

On the last day of this extension period, March 21, attorney Dapeer filed an another request for an additional 45 days to obtain the corporate revivor. In support, he submitted his declaration stating that Waypoint's accountant "has been attempting to resolve [a] dispute" with the Franchise Tax Board "regarding the effect of [Waypoint's]

bankruptcy" on the taxes owed but "additional time is needed because of the apparent complexity" of the bankruptcy issues. Dapeer did not present any supporting evidence from Waypoint's accountant or from the Franchise Tax Board.

3 Binational opposed the motion, noting that Waypoint produced no competent evidence of the existence of a "dispute" or that the "dispute" will likely be resolved within 45 days. Binational also asserted that Waypoint's bankruptcy did not provide a valid excuse for the suspended corporate status, and submitted evidence showing that Waypoint filed for bankruptcy in April 2012, and the bankruptcy case was closed seven months later in November 2012 with "NO DISCHARGE."

In its reply, Waypoint reaffirmed it had not obtained a revivor and did not suggest it was likely to obtain a revivor during the requested 45-day extension period. Waypoint instead asserted (without any supporting evidence) that there are "no franchise taxes due and owing" at the current time. Waypoint also repeated its earlier assertions that no revivor was necessary because the issue had been waived by a stipulation in the trial court.

DISCUSSION

As a currently suspended corporation, Waypoint is disqualified from prosecuting this appeal. When its corporate rights are suspended or forfeited, a corporation may not prosecute or defend an action and may not appeal from an adverse judgment. (Bourhis v. Lord (2013) 56 Cal.4th 320, 324; Reed v. Norman (1957) 48 Cal.2d 338, 343.)

A suspended corporation may apply with the Franchise Tax Board for a certificate of revivor after it has satisfied its tax obligations, and this certificate retroactively validates an earlier notice of appeal and thereafter permits the prosecution of the appeal.

(Bourhis v. Lord, supra, 56 Cal.4th at p. 324.) However, it is undisputed that Waypoint has never obtained a certificate of revivor.

4 Waypoint's waiver arguments are without merit. The record does not support Binational waived its right to assert the issue on appeal. In any event, this court on its own motion has the authority to determine Waypoint has no capacity to bring this appeal because of its forfeited corporation status. The purpose of the rule "is to 'prohibit the delinquent corporation from enjoying the ordinary privileges of a going concern' " and to induce the entity to pay its taxes. (Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1306.) Waypoint cannot take advantage of the judicial processes without becoming reinstated as a corporation. This requires evidence of a certificate of revivor.

We reject Waypoint's request for additional time to obtain a certificate of revivor.

The Franchise Tax Board suspended Waypoint's corporate powers seven years ago, and there is no evidence that Waypoint has paid any taxes since that time. Waypoint filed its appeal in March 2015, and was made aware of the need to obtain a revivor. It did nothing to remedy this defect for the next 11 months. On February 25, 2016, we issued an order notifying Waypoint that this court intends to dismiss the appeal with prejudice unless Waypoint files proof by March 10 that it properly revived its corporate status.

Two days before this period expired, Waypoint asked for an additional two-week extension to allow it to complete its discussion with the Franchise Tax Board and obtain a revivor. We agreed to this two-week extension. However, on the final day of this extension-period, Waypoint asked for an additional 45-day extension. We find the grounds for this request to be unsupported and meritless. There is no basis for an extension.

5 DISPOSITION

Appeal dismissed with prejudice. The order of February 26, 2016 placing the matter on calendar for April 12, 2016 is vacated. Appellant to pay respondent's appellate costs.

HALLER, J.

WE CONCUR:

NARES, Acting P. J.

MCDONALD, J.

Cites, in this corpus

Bourhis v. Lord S199887, S199889 · 2013-03-04
Grell v. Laci Le Beau Corp. A083685 · 1999-08-04
Reed v. Norman L. A. 24415 · 1957-04-12