Anticipating and Opposing Last Minute, Bogus, Motions to Quash Service of Summons or RFO'sSo, I was faced with an attorney who've I've been up against a few times before today, who always plays the last minute game of subterfuge and distraction. The last time I opposed her, her client was sanctioned $35,000 per Family Code section 271 - and her former client pays us a portion each month like clockwork (thank you very much).
This time the issue involved service upon her client (a same-sex RDP with mine) of the Summons, Petition, and our Request for Partner Support. Although I have the highest respect for the Judge who heard the matter today (not local), it is obvious to me that a lot of judges and lawyers don't understand the appropriate procedures for contesting service of process. In this case, the other party filed a Declaration claiming he was on a flight to Hawaii when he was in fact home and was served, but to my disappointment the Judge wanted to bend over backwards to give the other party an opportunity to dispute that he was served by our Santa Ana process server (whom I don't know but, as is often the case, out of town service has to be farmed out to someone local). I have every reason to believe the service was valid, and the other side's conduct only validates my assumption.
The Respondent's declaration, as discussed below, waived any objections to service challenges. As a result, his attorney committed malpractice (unless her only goal was only to gain a continuance, as I suspect). She sent the Declaration out regular mail last Friday, fully intending to give it to me for the first time this morning - as she did. This happens way too often, and Family Court Judges need to act to protect both sides from ambush. However, they often are - quite reasonably - constrained by ideas of fairness, which is fine, as long as we attorneys and litigants follow the rules that we seek protection by. Fairness is great, but "out-spouses" deserve it too.
I've been wanting to share some of our firm's pleadings with the Enlightened Divorce Blog™ readership, and maybe this is the way to do it - this is cut and pasted from the Points and Authorities we will be filing seeking consequential attorney fees and sanctions. I may start doing more of this if you find it useful.
Ultimately, the hearing did get continued 30 days, but we aren't done yet - as is clear from what follows, which will include a request for all attorney fees the other side caused my client. Continuances, like poop, happen. And shouldn't be taken personally.
Summary of ArgumentPetitioner does not dispute the power of this Court to manage its calendar and to grant continuances that it deems in “the interests of justice”. Instead, Petitioner by his counsel hopes that the efficient administration of justice as between attorneys will follow well established rules. Otherwise family law is nothing better than the “Wild, Wild, West” and miscarriages of justice and procedure will not only continue, but will be encouraged.
On August 4, 2013, Respondent was served with the Summons, Petition, and Request for Orders, among other things. On August 24, 2013, Respondent executed a “Declaration of John Smith (Specially Appearing)" dated August 24, which Respondent’s attorney belatedly filed on Friday, August 30, 2013, before the Labor Day Weekend, by which she purported to serve Petitioner’s attorney (us) by regular mail, only.
Respondent’s counsel gave no explanation at the hearing that occurred on September 3, 2013, when she - or the Respondent - first supposedly learned that Respondent had allegedly been served. Nor did Respondent’s counsel explain why she did not file or serve the declaration of Respondent prior to August 30, and then only by regular mail rather than by some other means intended and designed to give Petitioner and his attorney notice of the contentions that Respondent would make at the September 3 hearing. Instead, she hand delivered Respondent’s “Declaration” upon Petitioner’s counsel the morning of the hearing that contained a ‘whited’ out inadmissible hearsay document of unknown origin consisting of a supposed flight plan - long after it was possible for Petitioner’s counsel to research the legal issues (rules relating to special appearances and Motions to Quash) or the factual issues (an inquiry of the circumstances claimed by Jim Jones (not his name) who alleges under penalty of perjury that he did in fact fully serve the Respondent with the Summons, etc.)
POINTS AND AUTHORITIESA. Respondent Has Entered a General Appearance, and Entered It on August 30, 2013, Before the Subject HearingPetitioner properly objected that pursuant to recently revised Cal.Rules of Court, Rule 5.62, that (1) no such thing as a “Special Appearance” to contest jurisdiction by reason of service of process exists where a party fails to file a noticed motion to quash the service, or the proceedings; (2) that the Respondent himself entered a general appearance by having filed his Declaration on August 30, 2013; and that (3) a Motion to Quash must be filed within 30 days of the purported service or it is waived by operation of law.
There is no such thing as a "special appearance" in California - the common law distinction has been abolished. Hogoboom & King, California Practice Guide, Family Law, section 4:6. As they state, "Essentially, unless respondent files a motion to quash service of summons within the 30-day response period (or any other period allowed by the court), a personal jurisdiction challenge is waived and any other pleading filed or action taken in the case is a 'general appearance'." [Italics in orig]. However, the cases still use the terms.
Indeed, as in general civil cases, the respondent also enters a general appearance by asking for any relief or by otherwise participating in the action in a manner that recognizes the court's authority over his or her person. Hogoboom & King, supra, section 4:7. Moreover, a party's own characterization of an appearance as a "special appearance" is not conclusive for purposes of determining whether a party "consented" to the court's personal jurisdiction by appearing in the action. [See Szynalski v. Super.Ct. (Rosenthal & Co., LLC) (2009) 172 CA4th 1, at 11]. "On general principles, a statement that a defendant or party makes a special appearance is of no consequence whatever. . . . [I]f he appears and asks for any relief which could only be given to a party in a pending case, or which itself would be a regular proceeding in the case, it is a general appearance, no matter how carefully or expressly it may be stated that the appearance is special. It is the character of the relief asked, and not the intention of the party that it shall or shall not constitute a general appearance, which is material”. In re Clarke (1899) 125 C. 388, at 392; see generally , 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, section 207, pp. 815-817.
Failing to properly challenge personal jurisdiction within the time alotted and appearing to request a continuance also waives challenges to jurisdiction. [See In re Vanessa Q. (2010) 187 CA4th 128, at 135 - Hague Convention case]. Indeed, "[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."Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 111 CA4th 1135, 1145.
As shown below, there is only one statutorily authorized mechanism for challenging jurisdiction, whether it be for alleged defective service of the Summons and Petition or for purposes of claiming no minimum contacts to give rise to California personal jurisdiction: A noticed motion under CCP section 418.10. Taking any action other than the requisite noticed motion to quash constitutes a general appearance that cannot thereafter be negated by the filing of a motion to quash. Hogoboom & King, supra, section 4:8.1 (and cases cited therein).
Family Code section 210 provides as follows:
“Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.” [Emphasis added].
The Court on September 3, 2013, declared that it was treating Respondent’s Declaration as a Motion to Quash or other jurisdictional challenge. That filing was not a Motion to Quash, nor did it contain any Notice of Motion to Quash language. This Court could, certainly, order the hearing continued as it deemed necessary and proper, but that is not what it did.
California Rule of Court 5.62 (Title 5.Family and Juvenile Rules, Division 1. Family Rules Chapter 4. Starting and Responding to a Family Law Case; Service of Papers. Article 2. Initial Pleadings) states:
“(a) Appearance
Except as provided in Code of Civil Procedure section 418.10, a respondent or defendant is deemed to have appeared in a proceeding when he or she files:
(1) A response or answer;
(2) A notice of motion to strike, under section 435 of the Code of Civil Procedure;
(3) A notice of motion to transfer the proceeding under section 395 of the Code of Civil Procedure; or
(4) A written notice of his or her appearance.
(b) Notice required after appearance
After appearance, the respondent or defendant or his or her attorney is entitled to notice of all subsequent proceedings of which notice is required to be given by these rules or in civil actions generally.
(c) No notice required
Where a respondent or defendant has not appeared, notice of subsequent proceedings need not be given to the respondent or defendant except as provided in these rules.” [Emphasis added].
Code of Civil Procedure section 418.10 provides:
“(a) 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.
(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.
(b) The notice shall designate, as the time for making the motion, a date not more than 30 days after filing of the notice. The notice shall be served in the same manner, and at the same times, prescribed by subdivision (b) of Section 1005. The service and filing of the notice shall extend the defendant's time to plead until 15 days after service upon him or her of a written notice of entry of an order denying his or her motion, except that for good cause shown the court may extend the defendant's time to plead for an additional period not exceeding 20 days.
(c) If the motion is denied by the trial court, the defendant, within 10 days after service upon him or her of a written notice of entry of an order of the court denying his or her motion, or within any further time not exceeding 20 days that the trial court may for good cause allow, and before pleading, may petition an appropriate reviewing court for a writ of mandate to require the trial court to enter its order quashing the service of summons or staying or dismissing the action. The defendant shall file or enter his or her responsive pleading in the trial court within the time prescribed by subdivision (b) unless, on or before the last day of the defendant's time to plead, he or she serves upon the adverse party and files with the trial court a notice that he or she has petitioned for a writ of mandate. The service and filing of the notice shall extend the defendant's time to plead until 10 days after service upon him or her of a written notice of the final judgment in the mandate proceeding.
The time to plead may for good cause shown be extended by the trial court for an additional period not exceeding 20 days.
(d) 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.
(e) 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.
(2) If the motion made under this section is denied and the defendant or cross-defendant petitions for a writ of mandate pursuant to subdivision (c), the defendant or cross-defendant is not deemed to have generally appeared until the proceedings on the writ petition have finally concluded.
(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.”
[Emphasis added].
Cal.Rules of Court, Rule 5.74(1) defines a "pleading" as "a petition, complaint, application, objection, answer, response, notice, request for orders, statement of interest, report, or account filed in proceedings under the Family Code."
Clearly, a “motion” and “notice of motion” is required for any attack on the efficacy of service, not a mere “Declaration” stating objections. When Mr. Smith filed his Declaration without the motion mandated by CCP section 418.20. Frankly, trial courts don’t have discretion to ignore the dictates of this statute - although they certainly have the right to order continuances “in the interests of justice”. Weil & Brown, of The Rutter Group, California Practice Guide, Civil Procedure Before Trial, at section 3:165.3 (a true copy of which is attached hereto as EXHIBIT 1) state these principles as follows:
“Failure to make a 418.10 motion to quash ‘at the time of filing a demurrer or motion to strike constitutes a waiver; of the issue of lack of personal jurisdiction. [C.C.P. section 418.10(e)(3) (emphasis added).
Although the statute mentions only a ‘demurrer or motion to strike’ (omitting an answer), it is interpreted to mean the time of filing any response. I.e., C.C.P. section 418.1 provides the exclusive procedure for challenging personal jurisdiction at the outset. [Roy v. Sup. Ct. (Lucky Star), 127 CA4th 337, 345, 25 CR3d 488, 494].
(1) [3:165.4]. Application: Thus, a defendant who raises lack of personal jurisdiction in its answer without filing a section 418.10 motion to quash has made a general appearance. [Roy v. Sup. Ct. (Lucky Star), supra, 127 CA4th at 341, 25 CR3d at 491]”
[Italics in original]. Once the responding party has filed anything else, "it is too late to file a motion to quash." Weil & Brow, supra, at section 3:378.5.
Weil & Brown, supra, at section 3:158 also state: “A general appearance by a party is equivalent to personal service of summons on that party [C.C.P. section 415.50(a); see Fireman’s Fund Ins. Co. v. Sparks Constr., Inc. (2004) 114 CA4TH 1135, 1145, 8 CR3d 446, 453 - by making general appearance, defendant forfeits any objection to defective service even if unaware such objection was available.” [Italics in original]. A true and correct copy of this Treatise section is attached hereto as EXHIBIT 2.
Finally, Weil & Brown note that no general appearance is made if a C.C.P. section 418.10 motion to quash is timely made - “anything beyond that is likely to be treated as a general appearance and should be preceded or accompanied by a motion to quash in order to preserve objections to jurisdiction.” Weil & Brown, supra, at section 3:165 through 3:165.2.
Because Mr. Smith filed a Declaration on August 30th, he waived any objection that he was not properly served. This reality is jurisdictional by statute; is not a matter for the exercise of the court's discretion, including 'treating' Mr. Smith's Declaration as a motion or notice of motion.
B. Respondent’s Counsel Violated The Meet and Confer Rules Required By Cal.Rules of Court, Rule 5.98 Before The Subject HearingNewly enacted Cal.Rules of Court, Rule 5.98 mandates meet and confer between parties and counsel to avoid ambush and surprise. It states:
“(a) Meet and confer
All parties and all attorneys are required to meet and confer in person, by telephone, or as ordered by the court, before the date of the hearing relating to a Request for Order (FL-300). During this time, parties must discuss and make a good faith attempt to settle all issues, even if a complete settlement is not possible and only conditional agreements are made. The requirement to meet and confer does not apply to cases involving domestic violence.
(b) Document exchange
Before or while conferring, parties must exchange all documentary evidence that is to be relied on for proof of any material fact at the hearing. At the hearing, the court may decline to consider documents that were not given to the other party before the hearing as required under this rule. The requirement to exchange documents does not relate to documents that are submitted primarily for rebuttal or impeachment purposes.”
Attorney ______ in this case, who knew of Petitioner and the existence and identity of Petitioner’s counsel, had an absolute duty to contact Petitioner’s counsel before showing up with paperwork at a hearing for the first time when she’d filed but not served it prior to September 3, 2013.
C. Last-Minute Pleadings Must be Served in a Manner Designed to Give Immediate Notice and Cannot Be Served for the First Time at a HearingIt is a basic procedural principle that service of papers or pleadings must be served in a manner intended to give immediate notice, and not by regular mail as opposing counsel did in this case. Per C.C.P. section 1005(c) overnight mail must be reasonably calculated to ensure delivery to the other side not later then close of the next business day after the papers are filed. Here, opposing counsel, who full well knew my email and fax number, simply dropped them in the mail.
This conduct is not okay if the Court wishes that both sides enjoy due process. By all means, if you catch us or our clients lying or cheating, spank us! But otherwise, give us justice!
(That last part won't be in the final Points and Authorities in quite that way, but we do mean it!) No client of ours has ever been sanctioned, and none have been sued for breach of fiduciary duty.
TWA - good luck in the trenches!
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