Judge: Michael E. Whitaker, Case: 21STCV26867, Date: 2023-01-18 Tentative Ruling

Case Number: 21STCV26867    Hearing Date: January 18, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiffs William Lyles and Bryant Lyles (collectively, Plaintiffs) sued Defendants Patricia Martine Corinne (Corinne) and Sixt Rent A Car, LLC (Sixt) based on a motor vehicle collision.  Corinne appears specially and moves to quash service of the summons and complaint for improper service.  Plaintiffs oppose the motion.  Corinne replies.

ANALYSIS

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes:  (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. (2) To stay or dismiss the action on the ground of inconvenient forum.”  (Code Civ. Proc., § 418.10, subd. (a)(1)-(2).) 

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440; accord Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160 [“It was incumbent upon plaintiff, after the filing of defendant's motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant”]; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [“when a defendant challenges the court's personal jurisdiction on the ground of improper service of process “the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service” ”].)

“In order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures. (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1417, quoting Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110.) A plaintiff may serve an individual defendant “by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address . . . , in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . . , at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” (Code Civ. Proc., § 415.20, subd. (b).)

Here, Plaintiffs filed a proof of service on September 2, 2021, which reflects service on Sixt via personal service at 4640 Admiralty Way FI 5, Marina del Rey, CA 90292-6636 on August 24, 2021.  (See September 2, 2021.)  Service was purportedly effectuated on an agent of Sixt, Tiffany Phillips.  (See September 2, 2021.)  Accordingly, the Court finds that the September 2, 2021 proof of service, the only proof of service filed with the Court, on its face fails to establish proper service of the summons and complaint on Corinne via personal or substituted service.

In opposition, Plaintiffs argue that Corinne’s motion is untimely as she has already made general appearance and has forfeited any objections to defective service.  “A general appearance by a party is equivalent to personal service of summons on such party.”  (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.)  “A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service.”  (Ibid.)  “An appearance is general if the party contests the merits of the case or raises other than jurisdictional objections.”  (Ibid.)  In other words, “[i]f the defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one.”  (Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250.)   

Plaintiffs point to the deposition subpoenas that Defendants Corinne and Sixt jointly issued on October 5, 2022, to establish that Corinne has made a general appearance in this case.  (See Declaration of Neer Lerner, ¶¶ 3-10, Exhibits 2-9.)  “By initiating discovery unrelated to the issue of jurisdiction, [a party makes] a general appearance.”  (See Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1757.)  Accordingly, because the subject deposition subpoenas involve issues unrelated to jurisdiction, they would ordinarily constitute general appearances.

In reply, Corinne argues that before the subject subpoenas were issued on October 5, 2022, she filed a Motion to Quash on July 21, 2022.  Under Code of Civil Procedure, section 418.10, subdivision(e)(1), “no act by a party who makes a motion under this section, including filing an answer, demurrer, or motion to strike constitutes an appearance, unless the court denies the motion made under this section.”  Accordingly, “[a]s long as the motion is filed before or concurrently with an act constituting participation in the litigation on the merits (e.g., propounding discovery demands), there is no waiver of jurisdictional defects: i.e.,  ‘a defendant may move to quash coupled with any other action without being deemed to have submitted to the court's jurisdiction.’ ”  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 3:165.1(citing in part Roy v. Superior Court (2005) 127 Cal.App.4th 337, 345 [“Subdivision (e)(1) of section 418.10 protects a defendant who moves to quash by providing that “no act ” by that party shall constitute a general appearance. 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”].)

Therefore, the Court finds that because Corinne filed a motion to quash service of summons before Defendants Corrine and Sixt served the deposition subpoenas, Corinne has not made a general appearance.  Without Corinne consenting to the Court’s jurisdiction, Plaintiffs are required to properly serve the summons and complaint on Corinne.  The proof of service filed with the Court on September 2, 2021, fails to establish Plaintiffs perfected service on Corinne.

CONCLUSION AND ORDER

Therefore, the Court grants Corinne’s motion to quash service of summons and complaint per Code of Civil Procedure section 418.10. 

The Clerk of the Court shall provide notice of the Court’s ruling.