Motion to quash service in California for lack of personal jurisdiction

A motion to quash service in California for lack of personal jurisdiction is the topic of this blog post.

The technical legal term for personal jurisdiction is “in personam jurisdiction”.

Personal jurisdiction over a defendant is required whenever a personal judgment against that defendant is filed seeking a judgment for money damages, or an injunction.  That rule covers the vast majority of lawsuits in California or any other state and that is the reason why personal jurisdiction is a major factor in any litigation cases.

Unless a Court in California has personal jurisdiction over a defendant they cannot impose any personal liability against them or affect their personal rights in any way.  The rules and requirements relating to personal jurisdiction are there in order to protect a defendant, and they can be waived by a defendant.

Deadline to file a motion to quash service in California for lack of personal jurisdiction.

It should be noted unless a motion to quash service in California for lack of personal jurisdiction is filed before any other response is filed any jurisdictional defects will be deemed waived on the grounds that the defendant did not object promptly to personal jurisdiction by the proper procedure.

It has been recognized since common law times that state courts may exercise personal jurisdiction over nonresidents where certain “traditional” bases for personal jurisdiction exist. Burnham v. Sup.Ct. (Burnham) (1990) 495 U.S. 604, 609, 110 S.Ct. 2105, 2110.

The three “traditional” bases for personal jurisdiction are:

service on persons physically present in forum state;

domicile within the state; and

consent or appearance in the action.

For due process purposes, service of summons upon a person voluntarily present in the forum state “suffice(s) to confer jurisdiction without regard to whether the defendant was only briefly in the State or whether the cause of action was related to his activities there.” Burnham v. Sup.Ct. (Burnham) (1990) 495 U.S. 604, 612, 110 S.Ct. 2105, 2111; see also Marriage of Fitzgerald & King (1995) 39 Cal.App.4th 1419, 1426.

Although substitute service may be effective in other situations, only personal service will support over any nonresidents that are temporarily present in the State of California.

However personal jurisdiction cannot be based solely on the fact that a defendant used to live in California before. The domicile contact with California must be intact when the action is filed, for due process purposes.

But jurisdiction may be asserted against a former California domiciliary based on some other “contact” with the state: e.g., commission of some tortious act while domiciled here.

Actions speak louder than words in determining where a person is domiciled. Thus, for example, a person can sign all of the declarations that they want and/or file any number of documents stating that they are a Nevada resident for tax reasons or something similar but a court can still find them to be domiciled in California if the person spends most of their time here and has most of their property there.

Personal jurisdiction over a nonresident defendant may be upheld if he or she appears in the action, or otherwise has consented to the court’s exercise of such jurisdiction.

This is another of the “traditional” bases for personal jurisdiction that defines due process. Thus, jurisdiction may be upheld even in the absence of “minimum contacts” between the nonresident and the forum state. A nonresident who appears in an action, either as plaintiff or defendant, thereby submits to the court’s exercise of personal jurisdiction.

A plaintiff “appears” by commencing the action; in other words the act of filing the complaint submits plaintiff to the personal jurisdiction of the court.

However, a defendant submits to the jurisdiction of the court ONLY when it files a general, as opposed to a special, appearance.  This means that any defendant who intends to raise the issue of personal jurisdiction over them needs to file a “special” appearance, NOT a general appearance.

A “special” appearance is one limited to challenging the court’s jurisdiction over defendant. In California, the only procedure for challenging personal jurisdiction is a motion to quash service of summons, under Code of Civil Procedure § 418.10.

A defendant must serve and file the motion to quash within the time permitted to plead, unless the court extends the time for good cause shown. Note that you must schedule a hearing date within 30 calendar days of when your motion is filed. See Code of Civil Procedure § 418.10(b). The service requirements are those on motions generally.

If you have previously demurred, answered or moved for a transfer of the action, there is no point in filing a motion to quash service. The previous pleading or motion constitutes a general appearance, which waives any jurisdictional objection.

The motion to quash itself and any related relief incidental such as an extension of time to plead or setting aside a default, etc,. are protected as a “special appearance” so as not to subject defendant to the court’s jurisdiction.

Code of Civil Procedure § 418.10(d) states that, “No default may be entered against the defendant before expiration of his or her time to plead, and no motion under this section, or under Section 473 or 473.5 when joined with a motion under this section, or application to the court or stipulation of the parties for an extension of the time to plead, shall be deemed a general appearance by the defendant.”

However any pleading or motion by a defendant that contests the merits of the action, or challenges the complaint on other than jurisdictional grounds, constitutes a general appearance.  It is equivalent to personal service of summons on defendant for jurisdiction purposes.  See Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147.

Whether a defendant has made a “general appearance” is a fact-specific issue. The determinative factor is whether it “takes a part in the particular action which in some manner recognizes the authority of the court to proceed.” See Hamilton v. Asbestos Corp., Ltd., supra, 22 Cal.4th at 1147; see also Mansour v. Sup.Ct. (Eidem) (1995) 38 Cal.App.4th 1750, 1756.

A general appearance effectively waives any basis for objecting to the court’s personal jurisdiction over defendant.   This is true even where defendant expressly disclaims an intent to submit to the court’s jurisdiction.  See Neihaus v. Sup.Ct. (Vaillancourt) (1977) 69 Cal.App.3d 340, 345, the answer contained a statement that “defendant does not intend to subject his person to the jurisdiction of this court”; this was held to constitute a general appearance, thus the objections were waived.

In order to meet their burden of proof the plaintiff is entitled to conduct discovery with regard to the issue of jurisdiction before the hearing on the motion to quash in order to establish the nature and extent of the defendant’s “contacts” in California.  The hearing date is often continued to allow for such discovery.

But a continuance may be denied if there is no showing that discovery would likely produce evidence of additional “contacts.”  See Beckman v. Thompson (1992) 4 Cal.App.4th 481, 486-487.

The burden is on the plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met.

An experienced civil litigation attorney can evaluate your situation and determine if you have sufficient grounds for filing a motion to quash service in California for lack of personal jurisdiction.  Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

 

Advertisements

Author: nathanmubasher

Attorney Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s