Judge Michelle C. Kim, Case 19STCV02761 2023-04-10 Tentative Ruling

On January 28, 2019, Plaintiff Maria Mendoza filed this action against defendants Jorge M. Blanco-Palma, Ajit Mohan, and Prem Mohan for damages arising from a multi-vehicle accident. On December 16, 2019, this matter was consolidated with Case No. 19STCV04154, which was filed by Norma Isabel Larroza (“Larroza”) against Jorge M. Blanco-Palma, Ajit Mohan, and Prem Mohan for damages arising from the same accident.

At this time, defendant Jorge M. Blanco-Palma (“Palma”) moves to dismiss Mendoza’s action pursuant to CCP §§ 583.210, 583.250. Mendoza opposes the motion, and Palma filed a reply.

On November 29, 2022, Mendoza filed proof of service showing Palma was personally served with the Summons and Complaint on April 1, 2022, which was more than three years after the filing of the action. Palma asserts that while he previously made an appearance in this action as a cross-defendant, Palma has not appeared as a defendant. Palma denies that he was properly served with the summons and complaint as alleged in the November 29, 2022 proof of service, and contends that even if he was, Mendoza’s action against him must be dismissed because he was not served within three years of the filing of this action. Further, Palma contends that the proof of service was not filed within the required 60 days after the documents were allegedly served on Palma.

In opposition, Mendoza argues that Palma’s motion is moot because Palma made a general appearance in this action on March 22, 2021, because after this action was consolidated with 19STCV04154, Palma filed an answer to a cross-complaint, which constitutes a general appearance. Mendoza contends after Palma answered the cross-complaint, Mendoza was served with the summons and complaint on April 1, 2021. Mendoza further asserts that Palma filed an answer to Larroza’s complaint on July 29, 2022, which Mendoza contends constituted another general appearance. Mendoza argues that Palma failed to move to quash service of the summons.

In reply, Palma contends that answering a cross-complaint is not a general appearance sufficient to confer jurisdiction over Palma in Mendoza’s primary action. Palma contends that Mendoza’s complaint against him should be dismissed, and that Mendoza fails to prove proper service of the summons and complaint.

This matter was originally heard on January 26, 2023. Two days prior to the hearing, Mendoza filed a sur-reply to Palma’s reply. Mendoza did not obtain leave of court to file the sur-reply, so the Court will not consider the sur-reply.[1] At the January 26, 2023 hearing, the matter was continued to March 1, 2023. Mendoza and Palma were to file supplemental briefs that were to be limited to the issue of Emergency Rule 10 and whether that argument had been waived. (Min. Order, Jan. 26, 2023.)

In her supplemental opposition, Mendoza does not address Emergency Rule 10. Instead, Mendoza argues that Palma made a general appearance in this action by attending the Trial Setting Conference on February 4, 2021, after the cases were consolidated. Mendoza asserts that there is no prejudice to Palma by allowing Mendoza to raise all possible legal arguments in support of her opposition, whether the arguments are raised for the first time at hearing or via briefing. Further, Mendoza contends that Emergency Rule 9 extended the dismissal statute by 180 days because it stopped the running of the statute of limitations in this mater from April 6, 2020 to October 1, 2020. Mendoza contends that as a result, Mendoza had until July 25, 2022, to serve Palma.

In his supplemental reply, Palma contends that Mendoza’s supplemental opposition should be stricken because Mendoza failed to limit her brief to the specific issue of Emergency Rule 10 as ordered by the Court. Palma further asserts that the Emergency Rules pertaining to Covid-19 are inapplicable because this action was filed long before the Emergency Rules were enacted. Palma contends that Emergency Rule 9 only tolls statutes of limitation and does not apply to the service of complaints. Additionally, Palma argues that even if the time for service was extended, Mendoza still failed to file the proof of service within 60 days as required by the Code.

Because Mendoza raised additional arguments outside of Emergency Rule 10 in her supplemental opposition, the March 1, 2023 hearing was continued so that Palma could address Mendoza’s arguments concerning the February 4, 2021 Trial Setting Conference.

Palma filed the additional reply brief on March 29, 2023. Palma asserts that making an appearance on a cross-complaint does not constitute a general appearance in an underlying plaintiff’s action. Palma states that the attorney that appeared for him, Normand Ayotte, at the Trial Setting Conference has a custom and practice of being specific about the capacity of the party he is appearing for, and that the Court’s case summary for this matter does not state that Palma’s counsel ever appeared for Palma in his capacity as a defendant.

(a) The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.

(b) Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.

(a) If service is not made in an action within the time prescribed in this article:

(1) The action shall not be further prosecuted and no further proceedings shall be held in the action.

(2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.

(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.

“Once the statutory period for either service of process or commencement of trial has run, the action cannot be further prosecuted and must be dismissed. (CCP §§ 583.250, 583.360.) However, “[t]he time within which service must be made pursuant to this article does not apply if the defendant enters into a stipulation in writing or does another act that constitutes a general appearance in the action.” (CCP § 583.220, emphasis added.)

“To prevent dismissal, any claimed general appearance must have occurred within the mandatory three-year period. An appearance made thereafter does not deprive a defendant of his right to dismissal.” (Brookview Condominium Owners' Assn. v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 509; see also Mannesmann DeMag, Ltd. v. Superior Court (1985) 172 Cal.App.3d 1118, 1125 [even in assuming that appearance of counsel at taking of deposition of witness, after running of three year statute, amounted to general appearance, such appearance after expiration of three-year statute did not affect motion to dismiss], and Wenzoski v. Citicorp (N.D. Cal. 480 F.Supp. 1056, 1061 [In order to avoid mandatory dismissal general appearance must be made within three-year period].)

A general appearance is made when a defendant either enters an appearance in an action without limiting the purpose of the appearance or when the defendant asks for relief on the merits and thus recognizes the authority of the court to proceed. (See Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147.) A general appearance in an action waives any objection to personal jurisdiction, and the defendant submits to the jurisdiction of the court. (See, e.g., Greener, 6 Cal.4th at 1036-37.) In general, propounding discovery without challenging the court’s jurisdiction constitutes a general appearance. (Factor Health Management v. Superior Court (2005) 132 Cal. App. 4th 246, 250, citing Roy v. Superior Court (2005) 127 Cal.App.4th 337, 341.)

However, “an ‘action’ on a complaint should be distinguished from an ‘action’ on a related cross-complaint and that a general appearance in one such action will not necessarily constitute a general appearance in the other. A complaint and a cross-complaint in a single lawsuit are for most purposes treated as independent actions.” (Botsford v. Pascoe (1979) 94 Cal.App.3d 62, 67 [respondents did not make general appearance in action on complaint within meaning of former CCP § 581a solely by virtue of their activities with respond to cross-complaint against them]; see also Glenwood Homeowners Assn., Inc. v. Prosher Development Ltd. (1980) 111 Cal.App.3d 1002, 1004-06 [cross-defendant’s answer to cross-complaint did not constitute appearance to complaint such that plaintiff could serve complaint on cross-defendant by mail].) “Section 583.220 applies to a cross-defendant only to the extent the cross-defendant has made a general appearance for the purposes of the cross-complaint.” (CCP § 583.220, Law Revision Commission Comments.)

Here, Mendoza filed her complaint against Palma on January 28, 2019. Thereafter, Mendoza did not file proof of service of the summons and complaint on Palma until November 29, 2022, which alleges that Palma was personally served with the summons and complaint on April 1, 2022. This date was more than three years after Mendoza filed her complaint.

Mendoza contends, however, that the requirements of CCP § 583.220 do not apply to her because Palma made a general appearance in this action. In particular, Mendoza contends in her opposition that Palma made a general appearance by filing an answer to Ajit Mohan’s and Prem Mohan’s cross-complaint on March 22, 2021, which was before this action was three years old. Mendoza also contends that the following actions, which occurred after the action was three years old, constitute a general appearance: (1) Palma served extensive written discovery on Mendoza and the other parties in this action on March 10, 2022, and (2) July 29, 2022, defendant filed an answer to Larroza’s complaint on July 29, 2022.

As to Palma’s filing an answer to Ajit Mohan’s and Prem Mohan’s cross-complaint, Mendoza fails to cite any authority holding that such constitutes a general appearance relating to Mendoza’s complaint. Rather, it has been held that an action on a complaint is distinguished from an action on a cross-complaint, and an appearance in one does not constitute a general appearance in the other. (Botsford, 94 Cal.App.3d at 67; see also Glenwood Homeowners Assn., Inc., 111 Cal.App.3d at 1004-06.) Ajit Mohan’s and Prem Mohan’s cross-complaint against Palma is treated as an independent action from Mendoza’s complaint against Palma. (Botsford, 94 Cal.App.3d at 67.) Indeed, Palma was not required to take any action on Mendoza’s complaint until Palma was served with such. Mendoza does not otherwise provide any evidence or argument showing that Palma participated in the action with respect to Plaintiff’s complaint prior to the expiration of the three-year period. Palma cannot be said to have made a general appearance based solely on his actions with respect to Ajit Mohan’s and Prem Mohan’s cross-complaint. (Id. at 67-68.)

As to Palma propounding discovery on Mendoza and the other parties on March 10, 2022, and Palma’s filing an answer to Larroza’s complaint on July 29, 2022, even in assuming that these actions constituted a general appearance by Mendoza, the issue is that each of these actions occurred after the expiration of the mandatory three-year period. To prevent dismissal, Palma must have made any claimed general appearance within the three-year period. (Brookview Condominium Owners' Assn., 218 Cal.App.3d at 509; see also Mannesmann DeMag, Ltd., 172 Cal.App.3d at 1125.) Accordingly, Plaintiff cannot rely on either of these actions in asserting that Palma made a general appearance in this matter and arguing that CCP § 583.220’s mandatory requirements do not apply.

Additionally, to the extent that Mendoza contends that her summons and complaint were emailed to Palma’s former counsel, Normand A. Ayotte, (“Ayotte”) on June 5, 2019, Mendoza does not submit any evidence suggesting that Ayotte agreed or was authorized to accept service of the summons on Palma’s behalf.[2] Mendoza does not contend that such email service was proper. Instead, Mendoza states that Ayotte was informed that the documents were out for personal service. (Opp. Mendez Decl. ¶ 1.) This statement implicitly acknowledges that the emailing of documents did not supplant the need for the personal service. To the extent that Mendoza argues that there is an estoppel argument based on the emailing of summons and complaint (Opp. at p. 7:5-7.), Mendoza fails to cite any authority showing that Palma is estopped from moving to dismiss her complaint under these circumstances. Palma’s counsel, Ayotte, had no obligation to respond to the summons and complaint until such documents were properly served.

Mendoza, in her supplemental opposition, argues Palma made a general appearance by attending a Trial Setting Conference on February 4, 2021, after the cases had been consolidated. As Palma argues, the Court continued the January 26, 2023 hearing to allow the parties to submit supplemental briefs limited on the issue of Emergency Rule 10, which Mendoza failed to address in her supplemental reply. Mendoza instead raised arguments relating to Palma’s appearance at the Trial Setting Conference and Emergency Rule 9. No reasons are offered for why Mendoza failed to raise these issues in connection with her original opposition. Given that Palma had an opportunity to file a supplemental reply and a reply concerning the March 1, 2023 order to address Mendoza’s arguments, and in the absence of any prejudice, the Court will consider Mendoza’s arguments raised in her supplemental opposition.

“An attorney's appearance for a party at a hearing can also result in a general appearance.” (Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1757 [client made general appearance when their counsel participated in preparing joint case management statement for court and appeared at evaluation hearing on client's behalf]; compare with Nam Tai Electronics, Inc. v. Titzer (2001) 93 Cal.App.4th 1301, 1308-09 [defense counsel's filing status conference questionnaire and appearing at status conference not a general appearance for defendant where counsel did nothing more than inform court that defendant had been served but was moving to quash for lack of personal jurisdiction], disapproved on other grounds by Pavlovich v. Sup.Ct. (DVD Copy Control Ass'n, Inc.) (2002) 29 Cal.4th 262, 278, fn. 8.) Whether a party has engaged in an act that amounts to an appearance is “fact specific.” (Air Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 420.)

In Mansour, the relevant defendant’s counsel participated in preparing a joint case management statement and appeared at and participated in an evaluation conference pursuant to local court rules. (Mansour, 38 Cal.App.4th at 1757.) The defendant’s attorney listed discovery they anticipated conducting before trial and joined in the plaintiff’s efforts to continue the matter due to petitions pending before the court. (Id.) The attorney actively participated in the hearing. (Id.) The case management evaluation procedure is premised on the trial court having jurisdiction over the parties participating in it, so the defendant’s attorney’s participation in the evaluation conference constituted a general appearance in the case. (Id.) Further, although the attorney representing the relevant attorney also represented other defendants that were not objecting to the trial court’s jurisdiction over them, the attorney failed to limit their appearance as to the other clients. (Id.)

In Nam Tai Electronics, the defendant filed a status conference questionnaire and participated in a status conference, which the plaintiff argued constituted a general appearance. (Nam Tai Electronics, 93 Cal.App.4th at 1306-07.) The Nam Tai Electronics Court noted that the matter differed from Mansour in significant respects, including that the point of a status conference is merely to keep the trial court apprised of the status of the myriad of cases on its calendar, and the failure to attend a status conference can result in sanctions being assessed against counsel. (Id. at 1308.) In the status conference questionnaire and at the hearing, the defendant’s attorney “did nothing more than inform the court about the case's current status—that respondent had been served but that he was moving to quash.” (Id.) The trial court, on its own, set tentative dates for a trial and a final status conference without input from the defendant’s counsel. (Id.) It could not be “said that [the defendant] recognized the authority of the court to proceed against him or sought any type of relief based on the court's jurisdiction over him.” (Id.) Therefore, the defendant’s attorney’s appearance at the status conference did not constitute a general appearance.

In this case, the Minute Order for the February 4, 2021 Trial Setting Conference shows that Ayotte appeared for Palma. A Final Status Conference and trial date was scheduled at the Trial Setting Conference. As Mendoza avers, there is no indication in the February 4, 2021 Minute Order that Ayotte limited his appearance for Palma in any manner.

Palma contends that Ayotte’s appearance at the Trial Setting Conference does not constitute a general appearance because (1) Ayotte has a custom and practice of being specific about the capacity of the party he is appearing for, and (2) the Court’s online case summary states that Ayotte and associated counsel, John Duffy, are counsel for Cross-Defendant.

On February 4, 2021, I appeared at a Trial Setting Conference on behalf of Palma. When I appear at Hearings and Conferences, I have a long-standing custom and practice to be specific about the capacity for which I am appearing. I especially would have adhered to this custom and practice in the above-entitled matter, since I had been acutely aware that Palma had not been served with the Complaint. Accordingly I can say with high confidence that I would have stated my appearance at the February 4, 2021 Trial Setting Conference to be Counsel for Palma in his capacity as a Cross-Defendant only, rather than as a "general appearance."

The evidence shows that Mendoza’s counsel contacted Palma’s counsel, Ayotte, in June 2019 and emailed Ayotte a copy of Mendoza’s summons and complaint. Consequently, Palma was aware of Mendoza’s action against him when Palma appeared at the Trial Setting Conference through defense counsel. However, unlike in Nam Tai Electronics, where the defendant’s attorney appeared only to inform the trial court that he was moving to quash service, it is unclear whether Palma’s counsel limited Palma’s appearance in any manner. While Ayotte provides that he can say with confidence that he would have stated his appearance for Palma at the Trial Setting Conference in his capacity as cross-defendant only, Ayotte’s declaration is based on his custom and practice. The February 4, 2021 Minute Order does not provide that Palma’s counsel was making a special appearance.[3] The Court is thus left to speculate whether Palma’s counsel did in fact limit Palma’s appearance in any manner, which is not reflected in the Court’s order.

Palma further asserts that the Court’s online case summary for this action identifies Palma’s counsel as “Attorney for Cross-Defendant” only. (Reply Brief Re: March 1, 2023 Order Exh. 1.) However, while the case summary provides general party information, it does not indicate whether Ayotte limited Palma’s appearance at the Trial Setting Conference in any way. Moreover, the Los Angeles Superior Court provides access to online case summaries for the convenience of users and provides a specific disclaimer alerting users that an online case summary “does not constitute the official record of the court…and that it may be subject to error or omission.” (<https://www.lacourt.org/casesummary/ui/>, last visited April 4, 2023.) The February 4, 2021 Minute Order for the Trial Setting Conference states only regarding the parties’ appearances, “For Defendant(s): Normand Ayotte for Jorge M Blanco-Palma …” Consequently, Palma, through his counsel, by appearing at the Trial Setting Conference had a role in and influenced the then chosen final status conference and trial dates, and in having discovery and motion deadlines reset based on the new trial date. Palma does not establish that he limited his appearance at the Trial Setting Conference, and by participating Palma acknowledged this Court’s jurisdiction over him.

Therefore, Palma made a general appearance by appearing at the Trial Setting Conference in this matter on February 4, 2021, which was within three years of Mendoza filing her action against Palma.

Palma’s motion to dismiss Mendoza’s complaint is denied. Given this ruling, the Court need not address the issues concerning the validity of Mendoza’s purported April 1, 2022 service of summons.

Hon. Michelle C. Kim

Judge of the Superior Court

[1] The sur-reply seemingly reiterates Plaintiff’s same arguments from her opposition that Mendoza made a general appearance in this action by filing an answer to a cross-complaint and to Larroza’s complaint and by propounding discovery.

[2] Although Mendoza refers to Ayotte as Palma’s former counsel, the Court notes that after Ayotte filed an answer on Palma’s behalf to the Mohans’ cross-complaint, on November 5, 2021, the Law Offices of Gray · Duffy, LLP filed an Association of Counsel providing that they were associating with Ayotte’s law firm as counsel of record for Palma. To date, no substitution of attorney form has otherwise been filed, so Ayotte remains counsel of record for Palma.

[3] The Court notes that Palma did not file an answer to the Mohans’ cross-complaint against him until March 22, 2021, after the Trial Setting Conference. Accordingly, there is no evidence to suggest that Palma was limiting his appearance at the February 4, 2021 Trial Setting Conference as to the Mohans’ cross-complaint.