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Quashing service for lack of personal jurisdiction in California

by Stan Burman

Quashing service for lack of personal jurisdiction in California is the topic of this blog post. 

Personal jurisdiction is also known as "in personam jurisdiction".

In personam jurisdiction over a defendant is required whenever a personal judgment against him is sought such as a judgment for money damages, or an injunction. That covers the vast majority of lawsuits, which is why personal jurisdiction is a major factor in most litigation.

Without personal jurisdiction over a defendant, no California court may impose any personal liability upon them or affect their personal rights. The rules as to personal jurisdiction are for the protection of the defendant, and can be waived by the defendant.  I want to emphasize that  jurisdictional defects are deemed waived unless the defendant objects promptly and 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.

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.  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." 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. 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 llow for such discovery.

But a continuance may be denied if there is no showing that discovery would likely produce evidence of additional "contacts." 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. 

Jurisdictional facts must be proved by competent evidence at the hearing on the motion to quash. This generally requires affidavits or declarations by competent witnesses. A properly verified complaint may be treated as a declaration for this purpose.  Evangelize China Fellowship, Inc. v. Evangelize China FellowshiP (1983) 146 Cal.App.3d 440, 444.

Attorneys or parties who wish to view a portion of a sample motion to quash service for lack of personal jurisdiction in California containing a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can use the link shown below.

Sample Motion to Quash Service for Lack of Jurisdiction for Caliifornia by Stan Burman on Scribd

 

Attorneys or parties that would like more information on a California law and motion litigation document collection containing over 70 sample documents including a sample motion to quash service for lack of personal jurisdiction sold by the author can use the link shown below.

http://legaldocspro.net/california-law-and-motion-litigation-document-package/  

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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