Filed 2/6/20 Aguilera v. Farley CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JOSE BERDUGO AGUILERA,

Plaintiff and Appellant,

v.

JERAH RAE FARLEY et al.,

Defendants and Respondents.

A155279

(Contra Costa County

Super. Ct. No. C14-02334)

After plaintiff Jose Berdugo Aguilera failed, for more than three and a half years, to effect service of process on defendants Jerah Rae Farley and Rosa Cruz, the trial court dismissed the case in accordance with Code of Civil Procedure sections 583.210 and 583.250.

Aguilera now claims he did not, in fact, need to serve Farley and Cruz—because they purportedly made a general appearance when, after prevailing on a motion to quash, they filed a notice of change of address of counsel. At no time prior to the dismissal did Aguilera (or the court) ever treat Farley and Cruz as having made such an appearance. And neither Aguilera (nor the court) ever served them with any document or order, other than those pertaining to their motion to quash. Rather, Aguilera advanced his general appearance theory for the first time in a new trial motion challenging the dismissal.

The trial court was not receptive to Aguilera’s new perspective. Nor are we. Filing a notice of change of address of counsel is not remotely akin to the kind of acts the courts have held constitute a general appearance. We therefore affirm.

BACKGROUND

Aguilera filed this action on December 26, 2014, seeking damages for personal injuries allegedly sustained in a motor vehicle accident. Six months later, in July 2015, the trial court authorized service by publication.

More than nine months after that, in April 2016, Aguilera filed a declaration that notice had been published during the preceding three weeks. The following month, at Aguilera’s request, the court clerk entered defaults against Farley and Cruz.

Three months thereafter, in August 2016, Farley and Cruz specially appeared and moved to quash service by publication and to set aside the defaults. In October, the trial court granted the motion to quash and vacated the defaults.

For almost two years, Farley and Cruz did nothing, except to file, in February 2017, a notice of change of address of their attorney. In June 2018, they made a second motion to quash another attempt at substituted service.

In the meantime, between January 2017 and June 2018, Aguilera, through counsel, appeared for seven status conferences. At each, the court addressed the status of service, and several times gave notice the case would be dismissed if Aguilera did not effect proper service.

Aguilera eventually represented to the court that he finally accomplished substituted service on Cruz in May 2018, and he filed a second application for service by publication on Farley in June 2018—both efforts coming nearly three and a half years after the filing of the complaint.

In late June, Farley and Cruz filed their second motion to quash and set aside the order authorizing service by publication, and to dismiss the complaint for failure to serve summons and the complaint within the period mandated by section 583.210. In their points and authorities, Farley and Cruz asserted, among other things, that filing a notice of change of address of counsel did not constitute a general appearance that obviated the need for Aguilera to serve them.

Aguilera opposed the motion on the ground the trial court had “discretion” not to dismiss the case and the court should also deem the statutory period tolled for more than a year and a half. He made no claim that the notice of change of address of counsel constituted a general appearance rendering service unnecessary.

The trial court orally granted Farley and Cruz’s motion and dismissed the case on August 9, 2018, signed a written order doing so on August 29 (not filed until September 21), and signed a formal judgment of dismissal on September 10 (not filed until September 21). In the meantime, on September 7, Aguilera filed a notice of appeal.

A month later, on October 10, 2018, Aguilera filed a notice of intent to move for a new trial, identifying two grounds—(a) irregularity in the proceedings and (b) insufficiency of the evidence or legal error by the court—and alternatively sought to set aside the judgment. Aguilera now claimed, for the first time, that, in fact, he had not needed to serve Farley and Cruz because their notice of change of address of counsel constituted a general appearance.

The trial court denied Aguilera’s new trial motion and motion to vacate in a written order signed on December 14, 2018 (not filed until December 19).

DISCUSSION

Issues We Need Not, and Do Not, Reach

The parties devote considerable briefing to issues we need not, and do not, decide. For example, they differ over the standard of review. Aguilera maintains the substantive issue he raises on appeal—whether the notice of change of address of counsel constituted a general appearance by Farley and Cruz—presents a question of law that is subject to de novo review. Farley and Cruz maintain a dismissal under sections 583.210 and 583.250 is always reviewed for abuse of discretion. However, we need not, and do not, choose between these standards, as we conclude the trial court correctly dismissed the case, regardless of the standard of review we employ.

The parties also differ as to whether Aguilera can pursue his general appearance theory on appeal, since he never advanced it in the trial court prior to the dismissal, and raised it for the first time in his new trial motion. Aguilera claims he can raise the issue on appeal because it is a pure question of law based on undisputed facts. Farley and Cruz claim Aguilera is judicially estopped from pursuing this theory or has waived it. Again, even assuming Aguilera can belatedly pursue his general appearance theory, we conclude, for reasons we shall shortly explain, it has no merit.

The parties additionally differ as to whether Aguilera properly challenged the dismissal in the trial court through “post-trial” motions for new trial and to vacate. Aguilera claims such motions can properly be made to challenge a dismissal. Farley and Cruz maintain otherwise. We need not, and do not, reach this procedural issue, since, even assuming Aguilera can pursue his general appearance theory on appeal, we conclude it has no merit.

The Notice of Change of Address of Counsel Was Not a “General Appearance” That Excused Service of Process

In his opening brief, Aguilera cites three cases in support of his assertion that Farley and Cruz’s filing of a notice of change of address of counsel constituted a “general appearance,” obviating the need for service of process. On examination, not one assists Aguilera. In fact, the cases support the contrary conclusion—that filing a notice of change of address of counsel is not close to being the kind of act that constitutes a general appearance.

In Slaybaugh v. Superior Court (1977) 70 Cal.App.3d 216 (Slaybaugh), the Court of Appeal granted writ relief and instructed the trial court to dismiss the case for failure to serve summons within the requisite statutory period. The court rejected the plaintiff’s assertion that an unserved defendant, “by voluntarily submitting a declaration in support of a codefendant’s motion for change of venue, made a general appearance.” (Id. at pp. 219, 224.) The court pointed out the defendant was not the moving party and had simply attested to facts within his personal knowledge as a percipient witness—“[h]e filed no affidavit of merits or notice of motion.” (Id. at p. 221.)

In rejecting the plaintiff’s general appearance theory, the Slaybaugh court discussed the law on general appearances at some length. It explained, “[s]ection 1014 of the Code of Civil Procedure purports to define what constitutes an appearance as follows: ‘A defendant appears in an action when he answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him.” (Slaybaugh, supra, 70 Cal.App.3d at p. 221.)

However, “a defendant may appear in ways other than those specifically designated in section 1014. ‘. . . “The test is—Did the party appear and object only to the consideration of the case or any procedure in it because the court had not acquired jurisdiction of the person of the defendant or party? If so, then the appearance is special. If, however, he appears and asks for any relief which could be given only to a party in a pending case, or which itself would be a regular proceeding in the case, it is a general appearance regardless of how adroitly, carefully or directly the appearance may be denominated or characterized as special.” ’ ” (Slaybaugh, supra, 70 Cal.App.3d at p. 222.) Thus, “[a] party appears when he files a deposition and asks for relief even though he was never personally served (Greene v. Committee of Bar Examiners [(1971)] 4 Cal.3d 189, 200); when after service of summons and within the three-year period he secures a written stipulation extending the time ‘within which to appear’ (RCA Corp. v. Superior Court [(1975)] 47 Cal.App.3d 1007, 1009, and O’Keefe v. Miller [(1965)] 231 Cal.App.2d 920, 922–926); when it files in its own name interrogatories which would only be appropriate if it was appearing as a fictitious defendant (Chitwood v. County of Los Angeles [(1971)] 14 Cal.App.3d 522, 527–528 . . .); [or] when he manifests his attorney’s authority to appear for him by executing an affidavit in support of a motion for summary judgment made on behalf of himself and other defendants for whom the attorney allegedly was unauthorized to act. (Wilson v. Barry [(1951)] 102 Cal.App.2d 778, 781.)” (Slaybaugh, at pp. 222–223.)

By contrast, “[t]here is no appearance by a defendant-employee, who has not been served with summons, because he answers interrogatories addressed to him as an employee of the employer who has been served with summons and made a general appearance. (Semole v. Sansoucie [(1972)] 28 Cal.App.3d 714, 722–724.)” (Slaybaugh, supra, 70 Cal.App.3d at p. 223.) Similarly, “ ‘[the] mere physical presence of a party or of his attorney in the court room during the trial, or at the taking of depositions where there is no participation, or the presence as a witness of a party over whom jurisdiction has not been acquired, will not of itself constitute an appearance in the action.’ (6 C.J.S. (1975) Appearances, § 21, pp. 27–28, fns. omitted.)” (Slaybaugh, at p. 224.) And as the court held in Slaybaugh, an unserved defendant who voluntarily provides a factual declaration in support of another party’s motion, has not thereby made a general appearance. (Ibid.)

Both the discussion and holding in Slaybaugh readily lead to the conclusion that merely filing a notice of change of address of counsel does not constitute a general appearance by an unserved defendant. Such notice is no more a request for “relief which could be given only to a party in a pending case,” (Slaybaugh, supra, 70 Cal.App.3d at p. 222) than a factual declaration supporting another party’s motion, which the court held in Slaybaugh did not constitute a general appearance.

In 366-386 Geary St. L.P. v. Superior Court (1990) 219 Cal.App.3d 1186, 1193–1194 (366-386 Geary), the appellate court rejected the defendant’s claim that it only specially appeared and therefore the trial court lacked personal jurisdiction to order injunctive relief or relief from forfeiture. Whether the defendant had made a general appearance, said the court, did not turn on the defendant’s own characterization of its appearances “as ‘general’ or ‘special.’ Instead, [the court] must look to the ‘character of the relief asked.’ [Citation.] An appearance is general if the party contests the merits of the case or raises other than jurisdictional objections. (Lacey v. Bertone (1949) 33 Cal.2d 649, 651–652 . . . .)” (366-386 Geary, at p. 1193.)

In both the trial court and on appeal, the defendant in 366-386 Geary did not confine its arguments to jurisdictional objections. Rather, it argued relief from forfeiture was unavailable “because: (1) the petition for relief is not based on an unlawful detainer judgment; (2) petitioner is not a ‘plaintiff in judgment’ as required under section 1179; and (3) the tenant, Paem, cannot be restored to its former leasehold because the issue has previously been decided by the bankruptcy court.” (366-386 Geary, supra, 219 Cal.App.3d at p. 1194.) It further argued the trial court erred “by failing to require a bond and by failing to include a specific expiration date in the preliminary injunction.” (Ibid.) As the appellate court observed, “[s]uch arguments go beyond jurisdictional issues, to the substance and/or procedural aspects of real parties’ claims,” and the defendant had “thus made a general appearance and waived any personal jurisdictional objections.” (Ibid.)

Here, in contrast, Farley and Cruz have never made any arguments going “beyond jurisdictional issues” and pertaining to the “substance and/or procedural aspects” of Aguilera’s personal injury claims.

Finally, in Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127 (Hamilton), the Supreme Court addressed a number of issues, the principal one being whether the plaintiff’s case was barred by the statute of limitations. (Id. at p. 1132.) As a subsidiary issue, the court rejected the defendant’s claim that the trial court had erred in concluding it had generally appeared in the earlier of the plaintiff’s two lawsuits. (Id. at pp. 1147–1149.) Observing that “ ‘[a] general appearance by a party is equivalent to personal service of summons on such party,’ ” the high court reiterated that the “statutory list of acts constituting an appearance ([] § 1014 [filing an answer, demurrer, motion to strike, etc.]) is not exclusive; ‘rather the term may apply to 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.’ ” (Id. at p. 1147.) “The issue is thus fact-specific.” (Ibid.)

In Hamilton, “two paramount facts appear[ed]”—the trial court had “ordered [the plaintiff’s] two actions to be consolidated for all purposes, and [the defendant had] fully participated without objection in the consolidated action.” (Hamilton, supra, 22 Cal.4th at p. 1147.) The defendant “thereby made a general appearance.” (Ibid.) Indeed, when given a chance to object to the plaintiff’s efforts to recover for his two different injuries in the two consolidated cases, defense counsel expressly acquiesced (and, in fact, never objected on jurisdictional grounds). And post-consolidation, the defendant filed all documents in the first, and lead, case and defended all claims on the merits. (Id. at p. 1149.) Accordingly, the Supreme Court concluded the record amply supported the trial court’s determination that the defendant had appeared in the first, as well as the second, case, and that the Court of Appeal had erred in concluding otherwise. (Ibid.) No such “paramount facts” appear in the instant case.

In his reply brief, Aguilera additionally cites affirmatively to Creed v. Schultz (1983) 148 Cal.App.3d 733. Creed involved two family law matters that, while not formally consolidated, were tried together, and in the proceeding in which the former wife claimed to have only specially appeared, she had served her former husband with a notice of deposition and production of documents—an action the family court found, and the Court of Appeal agreed, constituted a general appearance. (Id. at pp. 737, 739–740 [“ ‘ “ ‘ “A ‘general appearance’ must be express or arise by implication from the defendant’s seeking, taking, or agreeing to some step or proceeding in the cause beneficial to himself or detrimental to the plaintiff, other than one contesting the jurisdiction only.” ’ ” ’ ”].) The notice of change of address of counsel filed here is not comparable to the notice of deposition and demand for documents the defendant served in Creed.

In sum, whether we review the dismissal de novo, or under the substantial evidence standard, or for abuse of discretion, we conclude the trial court was on solid ground in finding Farley and Cruz’s single act of filing a notice of change of address of counsel did not constitute a general appearance.

DISPOSITION

The judgment of dismissal is affirmed. Respondent to recover costs on appeal.

 

_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Margulies, J.

A155279, Aguilera v. Farley et al