Judge: Lee W. Tsao, Case: 23NWCV01003, Date: 2023-09-26 Tentative Ruling

Case Number: 23NWCV01003    Hearing Date: September 26, 2023    Dept: C

BRYAN v. SCOTTY AND SON TOWING, COLLISION, AND AUTOMOTIVE REPAIR

CASE NO.:  23NWCV01003

HEARING:  9/26/23

#3

TENTATIVE RULING

Defendant Scotty and Son Towing, Collision, and Auto Repair’s demurrer to Plaintiff’s complaint is OVERRULED.  Defendant is ORDERED to file and serve its Answer within 10 days.

Opposing Party to give NOTICE.

Defendant Scotty and Son Towing, Collision, and Auto Repair demurs to the complaint on the ground that the court lacks personal jurisdiction over Defendant.

The Complaint alleges that “[o]n or about December 2, 2022, Defendant SCOTTY and SON TOWING, COLLISION and AUTO REPAIR, entered into a repair contract with Plaintiff providing for installation of an engine assembly into Plaintiff’s 2017 Dodge Ram Power Wagon together with front bumper and radiator repairs.”   (Complaint, ¶ 7.)  “As a result of the work by Defendant the vehicle is now in worst condition than when it was towed to Defendant’s repair shop because of the defective work performed by Defendant.”  (Id., ¶ 8.)  Based thereon, the SAC asserts causes of action for:

1.        Breach of Contract

2.        Promissory Estoppel

3.        Fraudulent Misrepresentation

4.        Negligence

“A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike...”  (CCP § 1014.)

“[A] defendant who demurs or moves to strike must concurrently move to quash or dismiss, or any jurisdictional defect is waived.”  (Roy v. Sup.Ct. (2005) 127 Cal.App.4^th 337, 344.)  “Under the express provisions of section 418.10, subdivision (e), a challenge to personal jurisdiction is waived if a defendant demurs or moves to strike without concurrently moving to quash... Nothing could be clearer: a defendant may move to quash coupled with any other action without being deemed to have submitted to the court's jurisdiction. However, the motion to quash remains essential.”  (Id. at 345.)

Defendant demurs to the Complaint, contending that the court lacks jurisdiction over Defendant because the Complaint alleges that Defendant is doing business in the state of Arizona.  (Complaint, ¶ 2.)

However, Defendant did not simultaneously file a motion to quash on the ground that the court lacks personal jurisdiction over Defendant.  “Failure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issues of lack of personal jurisdiction, inadequacy of process, inadequacy of service of process, inconvenient forum, and delay in prosecution.”  (CCP §418.10(e)(3).)

Defendant argues in its reply that CCP § 430.10(a) allows the demurring party to object to jurisdiction.  However, CCP § 430.10(a) pertains to jurisdiction over the “subject of the cause of action.”  Here, Defendant is objecting to the court’s exercise of personal jurisdiction over Defendant, not subject matter jurisdiction.

Accordingly, the court finds that Defendant has made a general appearance and has waived the issue of the court’s lack of personal jurisdiction.  The demurrer is OVERRULED.  Defendant is ORDERED to file and serve its Answer within 10 days.