Judge Daniel M. Crowley, Case Number: 22STCV15931, Date: 2023-10-23 Tentative Ruling

Defendant Moath Naser’s motion for judgment on the pleadings of Plaintiff National Commercial Recovery, Inc.’s complaint is denied.

Defendant Moath Naser (“Naser”) (“Defendant”) moves for judgment on the pleadings asserted by Plaintiff National Commercial Recovery, Inc. (“NCR”) (“Plaintiff”) in its complaint (“Complaint”). (Notice of Motion, pgs. 1-2; C.C.P. §438.)

On May 12, 2022, Plaintiff filed its operative Complaint against Defendant alleging four causes of action: (1) common counts- open book account; (2) common counts- goods sold and delivered; (3) account stated; and (4) violation of Perishable Agricultural Commodities Act (“PACA”).

On October 6, 2023, Defendant filed the instant motion. On February 7, 2024, Plaintiff filed its opposition. On February 16, 2024, Defendant filed his reply.

C.C.P. §438 provides that a defendant may move for judgment on the pleadings where: (I) the Court has no jurisdiction of the subject of the cause of action alleged in the complaint; or (ii) the Complaint does not state facts sufficient to constitute a cause of action against that defendant. (C.C.P. §438(c)(1)(B).) The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or be based on facts the court may judicially notice. (C.C.P §438(d); Tung v. Chicago Title Co. (2021) 63 Cal.App.5th 734, 758-759.)

Defendant has filed a motion for judgment on the pleadings pursuant to C.C.P. §438, on the grounds that this court lack personal jurisdiction over him but attempts to reframe his argument as subject matter jurisdiction. The moving papers spend almost five pages arguing that there is no personal jurisdiction over the defendant because of “insufficient minimum contacts” with California and because defendant did not “purposefully direct” his activities at residents of California, citing numerous cases such as International Shoe Co. v. Washington, which deal strictly with personal jurisdiction over an out-of-state defendant.

C.C.P. §438(c)(1)(B)(i) allows for a motion for judgment on the pleadings if the court lacks subject matter jurisdiction, but it does not allow a motion for judgment on the pleadings based on a lack of personal jurisdiction. Instead, it is C.C.P. §418.10(a)(1) that governs a motion to quash service based on a lack of personal jurisdiction over a defendant, and a defendant’s motion under C.C.P. §418.10(a)(1) must be made “on or before the last day of his or her time to plead . . ..”

Defendant’s motion attempts to circumvent the time limits of C.C.P. §418.10(a)(1) by framing his motion as a motion for judgment on the pleadings since the motion was filed nearly 18 months after Defendant filed his pro per Answer in this case, thus submitting to this Court’s jurisdiction. Since the defendant’s motion is based on a lack of personal jurisdiction and not a lack of subject matter jurisdiction, the motion is time-barred and must be denied.

For Defendant’s counsel’s edification, the absence of personal jurisdiction is much different than the absence of subject matter jurisdiction; the lack of subject matter jurisdiction is a jurisdictional defect of the fundamental type. (A.H. v. Superior Court (2023) 89 Cal.App.5th 504, 519.) A trial court lacks jurisdiction in the fundamental sense where there is “an entire absence of power to hear or determine the case.” (Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 6.) One such example is this Court’s lack of jurisdiction over criminal and probate matters. On the other hand, “personal jurisdiction relates to the power to bind a particular party, and depends on the party’s presence, contacts, or other conduct within the forum state.” (Donaldson v. National Marine, Inc. (2005) 35 Cal.4th 503, 512.) These concepts are separate and distinct; subject matter jurisdiction can be raised at any time in a case, whereas a failure to raise an argument for lack of personal jurisdiction before filing a responsive pleading waives any such objection.

Based on the foregoing, Defendant’s motion for judgment on the pleadings as to the Complaint is denied.

Hon. Daniel M. Crowley

Judge of the Superior Court