2010-00347629
1.DEMURRER TO COMPLAINT
2.MOTION TO QUASH SERVICE OF SUMMONS

Motion to Quash

The motion to quash service of the 2013-647667 complaint is denied. On 07/11/13, in the presence of counsel for both sides, 2010-347629 (Wall’s lawsuit) and 2013-647667 (Mitchell’s lawsuit) were consolidated. This was reflected in Wall’s own Notice of Ruling filed seven days later. Litigation continued as a consolidated matter, most notably over Wall’s right to an offset – which directly impacted the merits of both 2010-347629 (Wall’s lawsuit) and 2013-647667 (Mitchell’s lawsuit). Wall voluntarily proceeded to secure a court order on the merits in her favor after consolidation.

A general appearance by a party is equivalent to personal service of summons on such party. CCP §410.50(a). There is first a statutory list of acts constituting a general appearance: when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer, moves for reclassification, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant. See CCP §1014. There is also a common law version of a general appearance, which applies when “defendant takes a part in the particular action which in some manner recognizes the authority of the court to proceed.” Hamilton v. Asbestos Corp. Ltd (2000) 22 Cal.4th 1127, 1147. When two actions are consolidated by court order for all purposes, and a party participates in the action, he or she is deemed to have made a general appearance in both. Hamilton, supra at 1148-1149.

Although CCP §418.10(e)(1) provides that no act taken in conjunction with a motion to quash will be deemed a general appearance (see Air Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 427-428), the acts taken by Wall prior to filing her motion to quash are sufficient to deem her already conceding personal jurisdiction for purposes of 2013-347629.

Demurrer to Complaint

Wall demurs to the complaint on the singular ground that the attorney lien claimed by Mitchell is part of Simora’s bankruptcy estate – thereby depriving this court of subject-matter jurisdiction. While that may have appeared to be the case originally, the Bankruptcy Court’s 03/24/14 order makes it clear that Mitchell may pursue his attorney lien claim here in state court. Mitchell submitted this information in opposition to the demurrer (this Court will take judicial notice thereof). Wall did not file reply papers, nor did she withdraw the demurrer.

Demurrer overruled. Wall to answer in 5 days.