Case Name: Ramin Shahidi v. Perfint Healthcare Corporation USA, et al.
Case No.: 2012-1-CV-226639

I. Background

Plaintiff Ramin Shahidi (“Plaintiff”) commenced this action against defendants Perfint Healthcare Corporation USA (“Perfint USA”), Perfint Healthcare Pvt. Ltd. (“Perfint India”), and Nandakumar Subburaman (collectively, “Defendants”) to recover $152,729.41 in unpaid consulting fees allegedly owed him pursuant to a consulting agreement. On June 15, 2012, Plaintiff filed a complaint asserting two common count claims and two fraud claims against Defendants to recover these consulting fees.

For background, Plaintiff is the director of the California Institute of Computer-Assisted Surgery (“CICAS”), a non-profit research institute that partners with other entities to develop computer-assisted surgical devices. Perfint India is a developer of robotic imaging technology that assists physicians with accurately targeting and administering oncology treatments and pain-management therapies. In 2009, Perfint India and nonparty CICAS decided to work together to develop an ablation treatment. The parties executed a written consulting agreement for the development of the ablation treatment, which was signed by Nandu and Plaintiff on behalf of their respective entities.

According to Plaintiff, in 2010, Nandu approached him about providing business consulting services to assist in the launch of its American subsidiary Perfint USA, which had not yet been created. Plaintiff alleges he provided these business-consulting services, separate and distinct from the development of the ablation treatment by CICAS as an entity, but was never compensated. This is the central allegation upon which the complaint is based. The parties’ dispute concerns the existence and scope of this secondary consulting agreement involving Plaintiff personally as compared to the primary consulting agreement between Perfint India and CICAS.

Currently pending before the Court is Perfint USA’s motion to quash service of summons based on a lack of personal jurisdiction over Perfint India. Alternatively, Perfint USA moves to dismiss for failure to timely serve summons (Code Civ. Proc., § 583.210) and timely bring the action to trial (Code Civ. Proc., § 583.310). To evaluate these matters, the Court must necessarily consider the unusual procedural history of this case, which will be recounted in detail.

II. Procedural History

A. Commencement of the Action

On June 15, 2012, Plaintiff filed the complaint and the clerk issued the summons. On August 15, 2012, Plaintiff filed three proofs of service of summons (“POSS”), one for each defendant. As reflected in the POSS, Plaintiff personally served Perfint USA’s registered agent in Delaware. Plaintiff served Perfint India and Nandu “by sending [a] copy of [the] summons and complaint by first-class mail pursuant to Code Civ. Proc. section 415.40.” (POSS at p. 2.) For these two defendants, Plaintiff mailed copies to Nandu at an address in Massachusetts and an address in Chennai, India as well as to Perfint India at the same address in Massachusetts and a different address in Chennai, India.

B. First Challenge to Personal Jurisdiction and Venue

On September 24, 2012, Defendants collectively filed a (1) motion to quash service of summons on the ground of lack of personal jurisdiction and (2) motion to stay or dismiss the action.

In their motion to quash, Defendants argued they lacked sufficient minimum contacts for purposes of establishing personal jurisdiction and that Perfint India and Nandu were not properly served in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the “Hague Convention”).

With respect to their motion to stay or dismiss the action, Defendants essentially rejected Plaintiff’s allegation that he had a separate consulting agreement and insisted that his claims as an individual actually arose out of the written consulting agreement between Perfint India and CICAS, which contained forum selection and arbitration clauses. On this basis, Defendants concluded this action was part and parcel of an ongoing dispute being between Perfint India and CICAS over their development of the ablation treatment to be arbitrated in India. Although Defendants identified their position as being based on the doctrine of forum non conveniens, their position was not actually based on this doctrine; they provided no analysis on the existence of a suitable alternative forum or the private and public interest factors. (See generally National Football League v. Fireman’s Fund Insurance Co. (2013) 216 Cal.App.4th 902, 917.) Instead, they sought a stay based solely on shoehorning Plaintiff’s claims within the scope of the written consulting agreement and enforcing the forum selection and arbitration clauses therein.

The parties fully briefed both motions and the Court issued a written order after the hearing on November 1, 2012. The Court granted the motion to quash service of summons as to all three defendants and stated the “motion to dismiss or, in the alternative, to stay the action is deemed MOOT.” (Order of Nov. 1, 2012 at p. 2:19-20.)

Significantly, while the Court’s ultimate conclusion is ascertainable from the order, it could have been stated with more clarity. The Court made the following rulings: (1) “[Perfint India] and [Nandu]’s motion to quash service of summons based upon defective service is GRANTED”; (2) “[Perfint USA] and [Nandu]’s motion to quash service of summons based on lack of personal jurisdiction is GRANTED with prejudice”; and (3) “[Perfint India]’s motion to quash service of summons based on lack of personal jurisdiction is DENIED without prejudice.” (Order of Nov. 1, 2012 at pp. 1:26-27, 2:7-8, 2:16-17.) The order thus reads as though there were multiple motions to quash on different grounds rather than one motion to quash on the sole ground of lack of personal jurisdiction for which multiple criteria, including minimum contacts and service, were necessarily considered.

“Personal jurisdiction over a nonresident defendant depends upon the existence of essentially two criteria: first, a basis for jurisdiction must exist due to defendant’s minimum contacts with the forum state; second, given that basis for jurisdiction, jurisdiction must be acquired by service of process in strict compliance with the requirements of our service statutes.” (Ziller Electronics Lab GmbH v. Superior Court (Ziller) (1988) 206 Cal.App.3d 1222, 1229, original italics; see also People v. Lara (2010) 48 Cal.4th 216, 224 [discussing jurisdiction and power of court; reversing Sixth District Court of Appeal].)

With that in mind, and looking at the Court’s analysis, the order is more appropriately characterized as follows. First, the Court concluded there was no basis for the exercise of personal jurisdiction over Perfint USA and Nandu because they lacked sufficient minimum contacts. Next, the Court concluded it had not acquired jurisdiction over Nandu because he was not properly served. Finally, the Court granted the motion with respect to Perfint India because it had not been properly served and not because it lacked sufficient minimum contacts. While it could be inferred that the Court concluded Perfint India had sufficient minimum contacts, it did not explicitly reach a conclusion one way or the other. In sum, the Court concluded it lacked personal jurisdiction over each defendant and granted the motion on that sole statutory ground. (Code Civ. Proc., § 418.110, subd. (a)(1) [authorizing motion to quash on ground of lack of personal jurisdiction].) This litigation could have ended here; the parties, however, continued to participate in the action.

C. Participation in the Action and Case Management Process

Despite the Court’s order and an absence of any evidence Plaintiff successfully served Perfint India in the interim, Defendants continued to participate in this action. First, for example, a case management statement was filed on behalf of all three defendants on November 13, 2012. Therein, Defendants stated the Court “did not have jurisdiction over two defendants,” presumably referring to the insufficient minimum contacts of Perfint USA and Nandu, and that it could take Plaintiff 90 days to serve Perfint India pursuant to the Hague Convention. (See Def. Case Man. Stat. of Nov. 13, 2012 at p. 4.) Defendants’ statement is not entirely correct because the Court granted the motion to quash on the ground of lack of personal jurisdiction as to each defendant and simply articulated a different reason for doing so with respect to Perfint India. It is unclear whether Defendants fundamentally misunderstood the Court’s order, which was not particularly clear, or simply used imprecise language. In either case, Defendants essentially abandoned their position that Perfint India lacked sufficient minimum contacts, perhaps concluding the Court implicitly rejected this argument in its previous order. On November 27, 2012, Plaintiff’s counsel and Defendants’ counsel appeared via CourtCall for a further case management conference.

Defendants filed another case management statement in January 2013 in which they stated service was still underway and the case thus “was not at issue.” (See Def. Case Man. Stat. of Jan. 18, 2013.) Defendants also appeared at a subsequent case management conference in March 2013.

Around this time, the Court also granted Plaintiff’s ex parte application for an extension of time to serve Perfint India. The order reflects Plaintiff applied for service pursuant to the Hague Convention in November 2012, but still had not received a proof of service in return. (See Order filed Jan. 24, 2013.) An email sent to Plaintiff’s counsel in February 2013 from Rakesh Sharma of Greves Protection Management Pvt. Ltd., which appears to be the business retained to facilitate service under the Hague Convention, reflects that while service was “underway,” there would be a delay in completion due to “internal shuffling of manpower within the ministry,” which was beyond its control. (Pl. Case Man. Stat. of Mar. 20, 2013.) The Court gave Plaintiff until March 29, 2013 to file a proof of service.

Perfint India filed another case management statement in April 2013, stating it intended to propound written discovery in November and complete depositions in January 2014. As distinct from its previous case management statements, it did not raise the issue of service pursuant to the Hague Convention. Rather, for the first time since the Court’s order on the first motion to quash, Perfint India asserted it “is an Indian corporation with no ties to California.” (Perfint India Case Man. Stat. of Apr. 2, 2013.)

D. Second Challenge to Personal Jurisdiction and Venue

On May 8, 2013, Perfint India filed another motion to quash service of summons on the ground of lack of personal jurisdiction. Perfint India’s second motion to quash was based solely on its assertion that it lacked sufficient minimum contacts and was not based on any purported deficiency in service of process. As with its first motion to quash, Perfint India contemporaneously filed a nearly identical motion to stay or dismiss, arguing the litigation was subordinate to the arbitration proceedings in India between it and CICAS.

On June 26, 2013, the Court granted Perfint India’s motion to quash service of summons “based on lack of personal jurisdiction” “without prejudice.” (Order of Jun. 26, 2013.) The Court simultaneously stated the motion to stay was “deemed moot,” but in fact imposed a stay of the proceedings. The fact of the stay is reflected by: (1) the language in the written order scheduling a status conference on the Indian arbitration (the reason for the stay); (2) a minute order stating “court to also impose a stay”; and (3) the statements made by the Court at the hearing on the motions.

Once again, while this litigation should have ended if the Court truly lacked a factual basis for the exercise of personal jurisdiction over the only remaining defendant, the parties continued to participate in the litigation.

E. Continued Participation in the Action During the Stay

Perfint India apparently believed there was in fact a stay of proceedings, and not that it was out of the case due to insufficient minimum contacts, because it continued to appear at case management conferences and entered into stipulations to continue the status review throughout 2014 and 2015. Eventually, the Court issued an order reflecting the current date for the parties’ status review was October 13, 2015 and requiring them to submit case management statements that included “a realistic end date for the Indian Arbitration as well as the need for a Stay.” (Order of Aug. 21, 2015.) Plaintiff filed a statement reflecting there was no end in sight for the arbitration and filed a motion to lift the stay. Perfint India filed an opposition to the motion. On December 8, 2015, the Court granted Plaintiff’s motion and lifted the stay.

It is unclear what transpired in the interim; the parties continued to file case management statements but there was no motion practice.

F. Order to Show Cause

On December 15, 2016, the Court issued an Order to Show Cause Re Dismissal (“OSC”) pursuant to Code of Civil Procedure sections 583.210-583.250 for failure to serve the summons and complaint on Perfint India within three years of the commencement of the action. Perfint India and Plaintiff filed responses.

In the detailed order issued on June 12, 2017, which recited the procedural history set forth above, the Court vacated the OSC, finding the three-year time limit for service was inapplicable because Perfint India made a general appearance in the case by participating in the case management process. The Court further found that, even if Perfint India had not made a general appearance, the OSC should still be vacated because the time for service had not expired. The Court stated that Plaintiff, as of June 2017, still had approximately one year and three months to serve Perfint India.

The Court noted it was not making a finding about personal jurisdiction at that time because the sole issue submitted for decision was whether the case against Perfint India should be dismissed for noncompliance with the three-year time limit for serving the summons and complaint. The Court stated its ruling was “without prejudice to a further motion to quash or other legal challenge to jurisdiction,” but acknowledged “it does appear clear…that defendant has, in fact, made a general appearance and thus may have waived any objections to personal jurisdiction.”

III. Discussion

Before the Court addresses each aspect of Perfint USA’s motion, it will first address Plaintiff’s objection that the motion was not properly filed by Witham, Mahoney & Abbot (“WMA”) on Perfint USA’s behalf because “the registry of actions does not indicate that [WMA] is Defendant Perfint [ ] USA’s counsel of record in this matter.” (Opp., p. 2:11:14-15.)

It is true that WMA is not identified in the docket as Perfint USA’s attorney of record; rather, the record reflects Perefint USA is self-represented. While authority exists for the proposition that an attorney of record has the exclusive right to appear in court on behalf of his or her client (Epley v. Califro (1958) 49 Cal.2d 849, 854), the situation presented here does not involve another person interfering with that right. Plaintiff cites no legal authority supporting the proposition that a motion may be deemed invalid where counsel appears on behalf of a self-represented litigant. Since Plaintiff’s objection is unsubstantiated, the Court will entertain the motion.

A. Motion to Quash for Lack of Personal Jurisdiction

Perfint USA challenges personal jurisdiction as to Perfint India on the basis of lack of sufficient minimum contacts with California. In opposition, Plaintiff contends Perfint USA lacks standing to bring this motion on Perfint India’s behalf. Plaintiff also opposes the motion on the merits, arguing personal jurisdiction exists because Perfint India has generally appeared in the action. In addition, Plaintiff requests that the Court issue an order to show cause to determine whether sanctions should be imposed on the basis the instant motion is purportedly frivolous.

1. Standing to Bring Motion

Plaintiff asserts that Perfint USA lacks standing to challenge the Court’s personal jurisdiction over Perfint India.

As a threshold matter, the Court observes that the identity of the moving party is not clearly or precisely articulated in the motion; in fact, the motion is quite confusing on this point. The caption of the notice of motion states it is Perfint India’s motion. Then, in the body of the notice and motion as well as the supporting memorandum, the moving party is identified as Perfint Healthcare Corporation USA, demoninated as Perfind India. But Perfint Healthcare Corporation USA—already designated herein as Perfint USA—is not properly denominated as Perfint India as they are separate and distinct entities. Next, in the caption of the reply, Perfint USA is identified as the moving party. Yet, the body of the reply again denominates Perfint USA as Perfint India. Since the moving party is most frequently and more specifically identified as Perfint USA, the Court disregards the anomalous denominations and treats the motion as brought by Perfint USA.

Turning to the merits of the standing issue, the concept of standing “[g]enerally…refers to an aggrieved party’s right to bring an action in the first instance, rather than an existing party’s right to bring a motion seeking some sort of relief from the trial court. (Dino v. Pelayo (2006) 145 Cal.App.4th 347, 353, fn. 2.) With that said, courts tend to frame the issue of whether a party has the right to bring a motion for particular relief as an issue of standing. (See, e.g., Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1352 [addressing parties’ standing to bring motion to disqualify counsel; People v. Koury (1989) 214 Cal.App.3d 676, 684 [addressing criminal defendant’s standing to bring suppression motion].) The fundamental question is whether the moving party has the right to seek the relief requested, which is measured by whether the issue involved affects his or her rights or interests. (See In re Devin M. (1997) 58 Cal.App.4th 1538, 1541.)

Plaintiff cites no legal authority directly addressing the issue of whether a party has the right to challenge a court’s jurisdiction over another party. The single case he cites, namely namely Estate of Hart (1984) 165 Cal.App.3d 392, merely held that the jurisdictional finding of an Oklahoma court had res judicata effect and could not be re-litigated in California. There does not appear to be any California case law specifically addressing the issue presented here.

With that said, logic dictates that one defendant cannot challenge personal jurisdiction over another defendant because the issue simply does not affect his or her rights or interests. Indeed, Code of Civil Procedure section 418.10 specifically states a defendant may move to quash services of summons for lack of personal jurisdiction “over him or her,” not over another defendant. (Code Civ. Proc., § 418.10, subd. (a)(1).)

A number of federal courts have reached the same or similar conclusion. For example, one court explicitly concluded that “appearing defendants lack standing to raise this objection to exercising personal jurisdiction over codefendants.” (Sayles v. Pacific Engineers & Constructors, Ltd. (W.D.N.Y., Mar. 23, 2009, No. 08-CV-676S) 2009 WL 791332, at *7.) In a similar vein, another court held that “one defendant may not challenge venue on the ground that it is improper as to a co-defendant” because “[i]mproper venue is a defense personal to the party to whom it applies.” (Pratt v. Rowland (N.D. Cal. 1991) 769 F.Supp. 1128, 1132.) As yet another court observed, “personal jurisdiction and venue represent a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty[,]” such that “both are waivable by the affected parties, and therefore cannot be raised on their behalf by anyone else.” (Jenkins v. Smead Mfg. Co. (S.D. Cal., Oct. 28, 2009, No. 09-CV-0261-IEG BLM) 2009 WL 3628100, at *3 (Jenkins).)

The Court finds these decisions highly persuasive. Although the court in Jenkins recognized an exception, particularly when the other party is an indispensible party (Jenkins, supra, 2009 WL 3628100 at *5, fn. 1), there is no apparent basis for finding Perfint India qualifies as such. In any event, as indicated above, the statute authorizing a motion to quash in California only permits a party to challenge the court’s jurisdiction over him or her. Furthermore, Perfint USA does not even respond to the standing issue in its reply.

In conclusion, the Court finds that Perfint USA lacks standing to bring the instant motion. As such, the motion may be denied on this basis alone. Because the motion otherwise lacks substantive merit, the Court will also address the merits below out of an abundance of caution given the lack of clarity as to the moving party’s identity.

2. Merits of Motion

“Under California’s long-arm statute, California courts may exercise personal jurisdiction over nonresidents on any basis not inconsistent with the Constitution of this state or of the United States. A state court’s assertion of personal jurisdiction over a nonresident defendant who has not been served with process within the state comports with the requirements of the due process clause of the federal Constitution if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate traditional notions of fair play and substantial justice. The due process clause is concerned with protecting nonresident defendants from being brought unfairly into [a forum state], on the basis of random contacts.” (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 209, internal quotation marks and citations omitted (ViaView).)

Although the moving party is the defendant, “the plaintiff has the burden of proving, by a preponderance of the evidence, the factual bases justifying the exercise of jurisdiction.” (ViaView, supra, 1 Cal.App.5th at p. 209-210.) To carry that burden, “[t]he plaintiff must do more than merely allege jurisdictional facts. It must present evidence sufficient to justify a finding that California may properly exercise jurisdiction over the defendant.” (In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 110.) If the plaintiff makes such a showing, “the burden shifts to the defendant to present a compelling case demonstrating that the exercise of jurisdiction by our courts would be unreasonable.” (Id. at pp. 110-111.)

Plaintiff presents two arguments both of which are based on waiver. First, Plaintiff argues Perfint USA waived personal jurisdiction by “challenging this court’s subject matter jurisdiction on this motion … .”(Opp., p. 2:16-17.) Plaintiff does not clearly identify how Perfint USA addresses subject matter jurisdiction.

a. Subject Matter Jurisdiction and General Jurisdiction

The Court must first clarify the terms being used. “Subject matter jurisdiction is conferred by constitutional or statutory law.” (Cummings v. Stanley (2009) 177 Cal.App.4th 493, 503 [internal quotation marks and citations omitted].) It is defined as “the power of the court over a cause of action or to act in a particular way.” (Ibid.) Thus, “[t]he principle of ‘subject matter jurisdiction’ relates to the inherent authority of the court involved to deal with the case or matter before it.” (Harnedy v. Whitty (2003) 110 Cal.App.4th 1333, 1343-44.) “By contrast, the lack of subject matter jurisdiction means the entire absence of power to hear or determine a case.” (Cummings, supra, 177 Cal.App.4th at p. 503.) For example, California courts lack subject matter jurisdiction over causes of action subject to the exclusive jurisdiction of the federal courts, such as those involving patents. (See, e.g., Lockwood v. Sheppard, Mullin, Richter & Hampton (2009) 173 Cal.App.4th 675, 683-84 [state court lacked subject matter jurisdiction over patent claims]; see also Ross v. Universal Studios Credit Union (2002) 95 Cal.App.4th 537, 542 [state court lacked subject matter jurisdiction over bankruptcy-related claims].)

It does not appear subject matter jurisdiction is at issue here. Perfint USA makes two alternative motions to dismiss pursuant to Code of Civil Procedure sections 583.310 and 583.210. Perfint USA does not argue that the Court lacks all authority over the case on the whole.

Regardless, Perfint USA’s more general point is that because the motions to dismiss address something besides personal jurisdiction they constitute a general appearance. Therefore, the Court addresses whether a motion to dismiss brought simultaneously with a motion to quash on the basis of personal jurisdiction constitutes a general appearance.

For context the Court explains the difference between a general and special appearance. “A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority of the court to proceed. It does not require any formal or technical act.” (Mansour, supra, 38 Cal.App.4th at p. 1756.) Moreover, “if a defendant by his appearance insists only upon the objection that he is not in court for want of jurisdiction over his person and confines his appearance for that purpose only, then he has made a special appearance, but if he raises any other question, or asks any relief which can be granted upon the hypothesis that the court has jurisdiction of his person, then he had made a general appearance.” [citations omitted] (Chitwood v. County of Los Angeles (1971) 14 Cal.App.3d 522, 527; see also Carpenter v. Mohammed (1964) 227 Cal.App.2d 584,585.)

Code of Civil Procedure section 418, subdivision (e) permits a party to bring any motion simultaneously with a motion to quash without making a general appearance or submitting to personal jurisdiction until the motion to quash is resolved. (Code Civ. Proc., § 418., subds. (e) & (e)(1).) That statute states:

(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.

(Code Civ. Proc., § 418.10, subd. (e).)

Here, Perfint USA brings this motion as a motion to quash for lack of personal jurisdiction, or, alternatively, to dismiss plaintiff’s complaint for failure to timely serve or timely prosecute. Said another way, this is a simultaneous motion to quash and motion to dismiss. When framed this way, it is clear this motion fits squarely within the exception provided by Code of Civil Procedure 418.10, subdivision (e)(1).

Thus, Perfint USA has not waived the issue of personal jurisdiction by simultaneously bringing two motions to dismiss.

b. Case Management Conferences

Perfint USA also argues as the Court reasoned in its June 2017 order, that Perfint India waived the issue of personal jurisdiction when it appeared for various case management conferences. The evidence for this argument is a copy of the Court’s June 2017 order wherein it vacated the order to show cause, and a copy of the Court’s November 2012 order granting Perfint India’s motion to quash based on a lack of personal jurisdiction.

As stated above, if a party makes a general appearance they waive the issues of defective service and personal jurisdiction. (Obrecht, supra, 245 Cal.App.4th at p. 8) “[Code of Civil Procedure] [s]ection 1014 lists several acts that constitute an appearance by a defendant (i.e., filing an answer, demurrer, motion to strike, motion to transfer, etc.), but the list is nonexclusive. [Citation.] A party may make a general appearance in an action by ‘ “various acts which, under all of the circumstances, are deemed to confer jurisdiction of the person. [Citation.] What is determinative is whether defendant takes a part in the particular action which in some manner recognizes the authority of the court to proceed.” [Citation.]’ [Citation.]” (Serrano v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1028–1029.)

Filing case management statements and appearing at case management conferences constitute general appearances. “The case management evaluation procedure is intended to expedite the resolution of lawsuits . . . [and] is thus premised on the trial court having jurisdiction over the parties participating in it.” (Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1757 (Mansour).) Thus, participation in the case management process after a court has already ruled on a motion to quash constitutes a general appearance. (Ibid.)

Perfint USA asserts that Mansour “was superseded by statute (specifically Section 418.10(e)) and hears no relevance to resolving the controversy now before this Court.” (Reply, p. 2:27-28.)

Section 418.10, subdivision (e) does protect against inadvertent general appearances, including case management conferences. (See State Farm General Ins. Co. v. JT’s Frames, Inc. (2010) 181 Cal.App.4th 429, 440-441 [listing Mansour and a case management conference as one method of inadvertently making a general appearance prior to section 418.10, subd. (e)] (State Farm General Ins. Co.).) However, this protection is not permanent, it simply delays the effect of such a general appearance until the personal jurisdiction issue has been resolved. (Id. at p. 441.)

Here, the case management conferences occurred long after the motions to quash were resolved. As outlined in sections II (C) and (E), Perfint India has taken part in case management conferences after both the 2012 and 2013 motions to quash. Thus, ordinarily Perfint India would have waived the issue of personal jurisdiction. Insomuch as section 418.10 delays a general appearance, such delay had passed. Generally speaking, there is nothing in section 418.10 which alters the basic rule that when a defendant takes an action that recognizes the authority of the court to proceed, it has made a general appearance. (State Farm General Inc. Co., supra, 181 Cal.App.4th at p. 441.)

Perfint USA argues Perfint India has not made a general appearance because the Court granted the previous motions to quash before it took part in the case management process. Perfint USA asserts after a motion to quash is made, personal jurisdiction cannot be established by a general appearance; unless and until the Court denies a motion to quash. Perfint USA’s position is because two motions to quash were filed and neither was denied it follows no subsequent action can be a general appearance. This argument is based on Code of Civil Procedure 418.10, subd. (e)(1).

Contrary to Perfint USA’s interpretation, that statute only expressly addresses a circumstance where a motion to quash is denied. (Code Civ. Proc., § 418.10, subd. (e).) “It merely delays the effect of such actions until the motion to quash is denied or, if the defendant seeks writ review, until proceedings on the writ have concluded. Once the motion is denied or writ proceedings have concluded, the actions undertaken by the defendant while the motion or writ was pending that recognized the trial court’s jurisdiction will be ‘deemed’ to constitute a general appearance, and no further objection to jurisdiction will be permitted.” (State Farm General Ins. Co., supra, 181 Cal.App.4th at p. 441.) It does not address actions taken months or years after an order granting a motion to quash. In sum, “subdivision (e) does not change the essential rule that ‘[a] defendant submits to the court’s jurisdiction by making a general appearance in an action’ by ‘participat[ing] in the action in a manner which recognizes the court’s jurisdiction.’” (Ibid.) Thus, this argument is not well-taken.

Perfint USA also relies on Air Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th 414. There, the defendants sought to overturn a trial court ruling that “[defendants] generally appeared (and thus forfeited their objection to personal jurisdiction) when they jointly served a statutory offer of settlement under Code of Civil Procedure section 998 … on real parties in interest … while their motions to quash service of summons for lack of jurisdiction were pending.” (Air Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 416 (Air Machine Com SRL).) The Court of Appeal ruled that the defendants had not forfeited their objection to personal jurisdiction, citing to Code of Civil Procedure section 418.10, subdivision (e). (Id. at p. 428.) The court reasoned that because the motion to quash was made before the offer of settlement, and because the word “act” in section 418.10, subdivision (e) should be viewed broadly, the offer was not a general appearance. (Ibid.)

On this basis, Perfint USA argues “where a defendant files a motion to quash ‘before or simultaneously with an act that would otherwise constitute a general appearance . . . [that party] will be deemed to have ‘specially appeared’ and not waived the party’s jurisdictional challenge.’ [citing Air Machine Com SRL.]” (P&As ISO Mtn. to Quash, p. 7:19-22.) Perfint India contends that case management conferences, like the settlement offer in Air Machine Com SRL, would not constitute a general appearance since they occurred after the 2012 and 2013 motions to quash. Indeed, no action could be a general appearance after those motions because “the condition precedent to such a possibility (i.e., the denial of Perfint India’s motions to quash) never occurred.” (P&As ISO Mtn. to Quash, p. 8:9-10.)

Perfint USA’s interpretation of Air Machine Com SRL is not well-taken. There, the settlement offer was made while a motion to quash was pending. (Air Machine Com SRL, supra, 186 Cal.App.4th at p. 416.) In contrast, Plaintiff implies after a motion to quash is granted, a plaintiff may proceed to litigate the matter until resolution on the merits. This sweeping interpretation goes beyond the facts of Air Machine Com SRL.

Here, the facts are quite distinct from Air Machine Com SRL. The Court granted Perfint India’s first motion to quash in 2012. Surprisingly, it continued to file papers and appear for several years. Now, in 2018, it asks the Court to ignore the intervening years. Thus, the present facts are distinguishable from Air Machine Com SRL.

Continuing to take part in the action for several years surely indicates Perfint India conceded the Court’s power to decide the issue, and thereby made a general appearance. (See Serrano, supra, 162 Cal.App.4th at pp. 1028–1029 [determining general appearance by “whether defendant takes a part in the particular action which in some manner recognizes the authority of the court to proceed”].)

Indeed, even after this Court’s June 2017 ruling—which could hardly have failed to put Defendants on notice that participating in case management conferences would likely impact their ability to argue personal jurisdiction thereafter—Perfint India filed a Case Management Statement in December 2017. In this case management statement a box is checked asking the Court to consider or decide the issue of personal jurisdiction at the case management conference. Nevertheless, the June 2017 order was clear that participating in case management conferences would likely be interpreted as a general appearance. Thereafter Defendants continued to appear.

Moreover, if the Court accepted Perfint USA’s interpretation of Air Machine Com SRL and section 418.10, subdivision (e), it would lead to an absurd result. Every defendant who succeeded in bringing a motion to quash on the basis of personal jurisdiction could then continue to litigate the issue on the merits as if that motion never occurred. If the outcome was favorable, the defendant could abide by the court’s ruling. (See State Farm General Ins. Co. v. JT’s Frames, Inc., supra, 181 Cal.App.4th at p. 437 [discussing leaving the jurisdictional issue open for appeal until after resolution on the merits].) However, if at any point the result appeared likely to be unfavorable, he or she could stop the proceedings by bringing up the prior motion to quash. (Ibid.) Such a result would waste court resources, and be nonsensical.

In sum, Perfint India made a general appearance by continuing to file case management statements and appear in related hearings for several years following two motions to quash. By doing so, it waived any defect in personal jurisdiction and service.

Accordingly, Perfint USA’s motion to quash service of summons for lack of personal jurisdiction is DENIED.

3. Plaintiff’s Request for Issuance of Order to Show Cause

Plaintiff “requests that an order to show cause hearing be set to determine whether sanctions should be imposed for filing a frivolous motion on the issue of personal jurisdiction, and whether seeking relief on subject-matter issues constitutes Defendant Perfint Healthcare Corporation USA’s general appearance.” (Opp., p. 3:1-3.) Plaintiff does not discuss this request any further; instead, he merely states in the conclusion section of his memorandum of points and authorities that sanctions are warranted under Code of Civil Procedure sections 128.7 and 1008.

Plaintiff does not purport to move for an award of sanctions himself; rather, he merely invites the Court to unilaterally pursue sanctions through the issuance of an order to show cause. The Court declines to do so. If Plaintiff wanted an award of sanctions, it should have filed a properly noticed motion seeking such relief.

B. Motion to Dismiss for Failure to Timely Serve Summons

Perfint USA requests dismissal of the action relative to Perfint India for failure to serve the summons and complaint within three years.

Code of Civil Procedure 583.210, subdivision (a) states that “[t]he summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant.” If service is not made within that time, “[t]he action shall be dismissed by the court on its own motion or on motion of any person interested in the action…after notice to the parties.” (Code Civ. Proc., § 583.250, subd. (a)(2).)

As a preliminary matter the Court summarizes the previous discussions of service. The issue of service was not clearly addressed in the 2012 motion to quash, and not raised in the 2013 motion to quash. In its 2017 order the Court noted that omitting service from the 2013 motion potentially waived it. However, in the 2017 order the Court calculated the time remaining for service as if service had not yet been achieved.

Here, both parties make arguments regarding whether more or less time should be excluded from this calculation as if service was not achieved. It is unnecessary to consider these arguments since Perfint India has generally appeared.

Code of Civil Procedure section 583.220 states that the three-year time limit for service does not apply if the defendant makes a general appearance. (Code Civ. Proc., § 583.220.) As previously discussed, Perfint India has generally appeared in this action. Thus, dismissal pursuant to section 583.250 is not warranted.

Accordingly, the motion to dismiss for failure to timely serve summons is DENIED.

C. Motion to Dismiss for Failure to Timely Prosecute

Perfint USA argues the case must be dismissed because Plaintiff failed to bring it to trial within five years.

Code of Civil Procedure section 583.310 states “an action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.310.) If an action is not brought to trial within that time, it shall be dismissed. (Code Civ. Proc., § 583.360, subd. (a).) In computing the five-year period, the following time periods shall be excluded: (1) when the court’s jurisdiction to try the case was suspended; (2) when prosecution or trial of the action was stayed or enjoined; (3) when bringing the action to trial was impossible, impracticable or futile. (Code Civ. Proc., § 583.340.)

It has been well over five years since this case was filed in June 15, 2012. As of the date of the instant hearing, it has been approximately 6 years and four months since the case commenced and trial has not yet begun. Thus, unless the period of time exceeding 5 years is properly excluded as provided in Code of Civil Procedure section 583.240, dismissal is mandatory. (See Code Civ. Proc., § 583.360, subd. (b).)

Plaintiff argues that two and a half years should be excluded because the case was stayed from June 2013 until December 2015. The Court agrees. As the Court noted in the June 2017 order, the case was stayed during that period. The stay lasted approximately 30 months. A complete stay is excluded when calculating time under section 583.340. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 730. (Bruns).) Thus, Plaintiff has 30 additional months to bring the case to trial.

In reply, Perfint USA argues that only time over which Plaintiff had no control should be excluded. Thus, since Plaintiff has not shown it had no control over the stay, that period should not be excluded. Plaintiff relies on Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081. There, the court determined that a stay which the plaintiff requested, and during which discovery continued, was not excluded from the five-year limitation under Code of Civil Procedure section 583.310. (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1089 (Gaines).)

The stay at issue was imposed in 2013 following a motion to quash by Perfint India which Plaintiff opposed. Plaintiff subsequently brought a motion to lift the stay in 2015, which Defendants opposed. Plaintiff seems to have opposed the stay from the first and eventually successfully removed it, unlike the plaintiff in Gaines. Defendants do not explain what “control” Plaintiff could have exerted.

Moreover, in Gaines the court contrasted the facts there with a traditional stay which
“freeze[s] a proceeding for an indefinite period, until the occurrence of an event that is usually extrinsic to the litigation … .” (Gaines, supra, 62 Cal.4th at p. 1092.) Here, the stay was based in part on the ongoing arbitration in India. Thus, this stay is permissible under Gaines, as it was based on an extrinsic event.

Thus, this case is not similar to Gaines, and Defendant’s argument is not well-taken.

Plaintiff also argues that from November 2012 to June 2013 should be excluded pursuant to Code of Civil Procedure section 583.340, subdivision (c) because it bringing the action to trial was “impossible, impracticable, or futile.” (Opp., p. 9:6-7.)

“Determining whether the subdivision (c) exception applies requires a fact-sensitive inquiry and depends ‘on the obstacles faced by the plaintiff in prosecuting the action and the plaintiff’s exercise of reasonable diligence in overcoming those obstacles.’ [Citaiton.] ‘ “[I]mpracticability and futility” involve a determination of “ ‘excessive and unreasonable difficulty or expense,’ ” in light of all the circumstances of the particular case.’ [Citation.]” (Bruns, supra, 51 Cal.4th at p. 731.) “The plaintiff bears the burden of proving that the circumstances warrant application of the section 583.340(c) exception.” (Ibid.) “Although ‘ “ ‘ “part of the five-year period must necessarily be consumed in service of process, disposition of demurrers, amendment of the pleadings, if necessary, usual and reasonable time consumed in waiting for a place on the court’s calendar or in securing the attendance of a jury and suchlike usual and necessary proceedings; … the section does not contemplate that time consumed in such ordinary proceedings are to be excluded from a computation of the five-year period.” ’ ” ‘ [Citaitons.]” (Id. at pp. 731-732.)

Here, Plaintiff argues that the Indian Ministry of Law and Justice caused delays in satisfying the provisions of the Hague Convention regarding service of process. Plaintiff cites to the Court’s June 2017 order. There, the Court stated “service was impossible, impracticable, or futile due to causes beyond Plaintiff’s control for a substantial duration of time” due to delays in service at the Indian Central Authority. (Order of June 2017.) The Court reasoned that delays in service at the Indian Central Authority were well-documented in other cases. Thus, the Court excluded from the time allowed for service the period from November 2012 until June 2013.This is the period Plaintiff asserts should be excluded pursuant to Code of Civil Procedure section 583.340, subdivision (c).

In essence, Plaintiff asks to exclude from calculation the time required to achieve service. Case law is clear that ordinary time consumed in achieving service of process is not normally excluded under section 583.340, subdivision (c). (Bruns, supra, 51 Cal.4th at pp. 731-732.) However, service in this case is not ordinary. Plaintiff was seeking to serve a foreign defendant in a foreign country. The agency of that country charged with effectuating proper service is slow, as shown by delays other cases. (See, e.g., F.T.C. v. PCCare247, Inc. (S.D.N.Y. Mar. 7, 2013, Case No. 12-CV-7189 PAE) 2013 WL 841037, at *2 [Indian Central Authority did not formally serve defendants for at least five months, and did not respond to FFC’s inquiries regarding service].) The Court agrees that it cannot expect Plaintiff to exercise any control over a bureaucrat in a foreign country.

In reply, Perfint USA argues the critical factor in deciding if time is excluded under section 583.340 is whether the plaintiff exercised reasonable diligence in pursuing his claim. The Court cannot understand how this particular delay was avoidable by reasonably diligence on the part of Plaintiff. Plaintiff has submitted correspondence—as an attachment to his declaration in support of the opposition—showing some effort to check on the progress of the Indian Central Authority via email. (Decl. ISO Opp., Ex. D.) While Plaintiff or Plaintiff’s counsel might have traveled to India to investigate the delay, such effort would have imposed an excessive and unreasonable expense. On these particular circumstances Plaintiff has shown reasonable diligence.

Nevertheless, even without the unusual circumstance of the Indian Central Authority, foreign service is not instantaneous. Ordinary delays in service of process are not excluded under section 583.340. (Bruns, supra, 51 Cal.4th at pp. 731-732.) Thus, the Court subtracts two months from the period requested by Plaintiff; so as not to exclude time for ordinary service of process.

Therefore, the time from January 2013 to June 2013 is excluded from the five-year deadline in section 583.310 pursuant to section 583.340, subdivision (c).

In summary, adding 30 months (the length of the stay) and 6 months (for delays at the Indian Central Authority rendering trial impossible) to June 2017 results in a five-year deadline of June 2020. Thus, Plaintiff is still within the five-year deadline established by section 583.310. Even if the Court were to exclude only the stay, Plaintiff would have until December 2019.

Accordingly, the motion to dismiss for failure to timely bring the case to trial is DENIED.