Judge: Michael E. Whitaker, Case: 24SMCV01572, Date: 2024-08-22 Tentative Ruling

Case Number: 24SMCV01572    Hearing Date: August 22, 2024    Dept: 207

TENTATIVE RULING

BACKGROUND

On April 3, 2024, Plaintiff SMCA Main Street Plaza LLC (“Plaintiff”) filed an unlawful detainer complaint against Defendant BSM 2nd Street LLC (“Defendant”).  The proof of service indicates Defendant was served with a copy of the original summons and complaint via substitute service on April 10, 2024.  On April 30, Defendant moved to quash the summons. 

On June 20, Defendant also demurred to the original complaint.  Six days later, Plaintiff timely filed an amended complaint, mooting the demurrer to the original complaint.  An amended summons was issued in connection with the first amended complaint.  The following day, Defendant withdrew its motion to quash service of the original summons.

Defendant now moves to quash service of the first amended summons on the grounds that this Court lacks jurisdiction over it because the first amended summons was served on Defendant via counsel, and not in accordance with the rules for service of summons.  Plaintiff opposes on the grounds that Defendant’s demurrer to the original complaint operated as a general appearance.

LEGAL STANDARDS - JURISDICTION

“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.”  (Code Civ. Proc., § 418.10, subd. (a)(1).) 

“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’ ”].)   A declaration of service by a registered process server establishes a presumption that the facts stated in the declaration are true. (Evid. Code, § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.)

            “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.) 

For service on persons within California, generally, service of summons and complaint must be done by personal service.  (Code Civ. Proc., § 415.10.)  However, “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served,” 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).) 

A court may also exercise jurisdiction over an individual who consents to such jurisdiction.  (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 658.)  “Express consent to a court's jurisdiction will occur by generally appearing in an action or by a valid forum-selection clause designating a particular forum for dispute resolution regardless of residence.”  (Ibid. [cleaned up].) 

“A general appearance by a party is equivalent to personal service of summons on such party.  (Code Civ. Proc., § 410.50, subd. (a).)  “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.” (2 Witkin, Cal. Procedure (6th ed. 2021) Jurisdiction, § 214, p. 828.)   Moreover, “[a] general appearance can make up for a complete failure to serve a summons.  An appearance is general if the party contests the merits of the case or raises other than jurisdictional objections.  Filing an answer on the merits constitutes a general appearance.  (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145 [cleaned up].) 

ANALYSIS

Code of Civil Procedure section 418.10, subdivision provides, in relevant parts:

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.

[…]

A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint.

(1) Notwithstanding Section 1014, 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. If the court denies the motion made under this section, the defendant or cross-defendant is not deemed to have generally appeared until entry of the order denying the motion.

[…]

(3) 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.

(Code Civ. Proc., § 418.10, subds. (a)(1) and (e)(1).)

            Although Defendant originally filed a motion to quash service of the summons and complaint, Defendant voluntarily withdrew that motion on June 27, 2024.  Although Plaintiff had filed a first amended complaint (“FAC”), which superseded the original complaint and mooted the pending demurrer, the issue of whether Defendant was properly served with the original summons such that this Court has jurisdiction over Defendant was not mooted.  Accordingly, by voluntarily withdrawing its original motion to quash, Defendant forfeited the issue of inadequacy of service of process.

            Similarly, when Defendant voluntarily withdrew the original motion to quash, Defendant’s demurrer to the original complaint operated as a general appearance, notwithstanding that it was mooted by Plaintiff’s FAC.  (See Roy v. Superior Court (2005) 127 Cal.App.4th 337, 344 [“a defendant who demurs or moves to strike must concurrently move to quash or dismiss, or any jurisdictional defect is waived”].) 

CONCLUSION AND ORDER

            Therefore, the Court denies Defendant’s motion to quash.  Defendant shall file and serve a responsive pleading to the First Amended Complaint on or before August 29, 2024.   

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

DATED:  August 22, 2024                                                     ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court