This blog post will briefly discuss the issue of personal jurisdiction in California and the filing of a motion to quash based on lack of personal jurisdiction over a defendant. 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. This would cover the vast majority of lawsuits, and hence personal jurisdiction is a major factor in most litigation.
Without personal jurisdiction over a defendant, no California court can 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 hence can be waived by defendant. Indeed, jurisdictional defects are deemed waived unless defendant objects thereto 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 for other purposes, only personal service of process supports personal jurisdiction over nonresidents temporarily present in the state.
State courts can exercise personal jurisdiction over persons domiciled within the state at the time the lawsuit is commenced even if they are not actually present here. Milliken v. Meyer (1940) 311 U.S. 457, 462, 61 S.Ct. 339, 342; Allen v. Sup.Ct. (1953) 41 Cal.2d 306, 310-311.
Personal jurisdiction cannot be based solely on the fact that a defendant had been domiciled in California at some earlier time. Defendant’s domicile “contact” with California must be intact when the action is filed, for due process purposes. Hoerler v. Sup.Ct. (Hoerler) (1978) 85 Cal.App.3d 533, 538.
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 may file documents stating that he is a Nevada resident (e.g., for tax reasons), but still be found to be a California domiciliary if he spends most of his time here, has most of his property here, etc. See Briggs v. Sup.Ct. (1947) 81 Cal.App.2d 240, 250.
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; i.e., filing the complaint submits plaintiff to the personal jurisdiction of the court.
However, a defendant submits to the court’s jurisdiction only when it files a general, as opposed to a special, appearance.
A pleading or motion by 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.” Hamilton v. Asbestos Corp., Ltd., supra, 22 Cal.4th at 1147, 95 Cal.Rptr.2d at 714; 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.–answer contained statement that “defendant does not intend to subject his person to the jurisdiction of this court”; held general appearance, objections waived.
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.
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.
If defendant has 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 relief incidental thereto 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, a movant seeking relief on any basis other than lack of personal jurisdiction makes a general appearance, thereby waiving any defect in personal jurisdiction . . . notwithstanding a “special appearance” designation on the face of the motion. Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1037.
In order to meet its burden of proof, plaintiff is entitled to conduct discovery with regard to the issue of jurisdiction before the hearing on the motion to quash; e.g., to establish the nature and extent of the defendant’s “contacts” in California. The hearing date is often continued to facilitate such discovery. Mihlon v. Sup.Ct. (Murkey) (1985) 169 Cal.App.3d 703, 711.
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 notice of motion must set a hearing date within 30 days after the notice is filed. The service requirements are those on motions generally. 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).
Although defendant is the moving party, the burden of proof is on the plaintiff: “Where jurisdiction is challenged by a non-resident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts’ exist between defendant and the forum state to justify imposition of personal jurisdiction.” Mihlon v. Sup.Ct. (Murkey) (1985) 169 Cal.App.3d 703, 710; Floveyor Int’l, Ltd. v. Sup.Ct. (Shick Tube-Veyor Corp.) (1997) 59 Cal.App.4th 789, 793.
The burden is on the plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. Ziller Electronics Lab GmbH v. Sup.Ct. (Grosh Scenic Studios) (1988) 206 Cal.App.3d 1222, 1232.
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. See Evangelize China Fellowship, Inc. v. Evangelize China FellowshiP (1983) 146 Cal.App.3d 440, 444.
An unverified pleading has no evidentiary value in determining personal jurisdiction. See Mihlon v. Sup.Ct. (Murkey), supra.
Even so, such pleadings are relevant in defining the cause of action asserted, and whether it arises out of the nonresident’s alleged local activities.
Except as otherwise provided by statute, hearsay declarations are not competent proof of facts alleged. Floveyor Int’l, Ltd. v. Sup.Ct. (Shick Tube-Veyor Corp.) (1997) 59 Cal.App.4th 789, 796, 69 Cal.Rptr.2d 457, 462– declaration by plaintiff’s attorney stating “discovery in this case revealed ..” was “nothing more than inadmissible hearsay”.
Normally, liability issues are irrelevant on a motion to quash. However, where jurisdiction is asserted on the basis of defendant’s having caused tortious effects in California, defendant may defeat jurisdiction by unequivocal proof that it did not cause plaintiff’s injury: Plaintiff “cannot demand that we judge the question of jurisdiction in the light of a claim he apparently does not have.” J.M. Sahlein Music Co., Inc. v. Nippon Gakki Co., Ltd. (1987) 197 Cal.App.3d 539, 545.
Attorneys or parties who wish to view or purchase a sample motion to quash service for lack of personal jurisdiction in California sold by the author can click below.
http://www.scribd.com/doc/66213392/Sample-Motion-to-Quash-Service-for-Lack-of-Jurisdiction
The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 15 years of experience in California civil litigation. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. Visit his website at http://www.legaldocspro.net
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