Case Name: Seth Rogers v. iTy Labs Corp., et al.

Case No.: 17-CV-306546

Plaintiff Seth Rogers brings this action for business torts, breaches of fiduciary duties, and related claims against his former business partner Jose Cong; the company he and Cong created, iTy Labs Corp.; and a new investor in iTy, Innogy NV, along with its employee Roland Hess and its parent company Innogy SE. Before the Court is a motion by Hess to quash service of process pursuant to Code of Civil Procedure section 418.10, which Rogers opposes.

I. Factual and Procedural Background

According to the First Amended and Supplemental Complaint (“FAC”), Rogers and his business partner Michael Mintz formed iTy in September of 2014 in San Francisco, with the plan to provide workforce management software to companies of all sizes. (FAC, ¶ 12.) Rogers developed the intellectual property that was used in iTy’s software “Plause.” (Ibid.) In May of 2015, Rogers partnered with Cong to restructure iTy, and they incorporated the company in Delaware with the understanding that Rogers would provide the intellectual property and Cong would act as the face of the company by securing additional business and financing. (Id., ¶ 15.) On May 7, 2015, Rogers purchased 2,000,000 shares of common stock in iTy through a Common Stock Purchase Agreement (“SPA”), in exchange for the transfer of his intellectual property and $20. (Id., ¶ 16.)

iTy raised a first round of financing in July and August of 2015, with angel investors, including Cong, joining a single initial investor in the company. (FAC, ¶ 17.) In August and September of 2016, iTy obtained additional funding, including through two Convertible Promissory Notes executed by Rogers. (Id. at ¶ 18.) Under Paragraph 2 of the Promissory Notes, Roger’s principal investment may be converted to stock, including preferred stock, upon the satisfaction of certain conditions. (Id. at ¶ 19.) Under Paragraph 5, iTy may not prepay the Promissory Notes without penalty absent the written consent of a majority in interest of holders of convertible promissory notes issued by iTy. (Ibid.)

Shortly after Rogers executed the last of the two Promissory Notes on September 14, 2016, iTy again ran out of money. (FAC, ¶ 21.) Rogers could not afford to invest in any more bridge loans, and Cong had no business near closing. (Ibid.) Facing these issues, Rogers and Cong aggressively pursued acquisitions by any and all suitors. (Ibid.) By October 11, 2016, with no money, no imminent business, and no one to acquire the company, Rogers and Cong agreed to dissolve and wind up iTy. (Id., ¶ 22.) However, at no time did Rogers resign from his position with the company. (Ibid.)

Following his agreement with Cong, Rogers understood that iTy was being wound up with the assistance of its corporate counsel Wilson Sonsini Goodrich & Rosati (“WSGR”). (FAC, ¶ 23.) He communicated this understanding by email to iTy’s counsel at WSGR and specifically requested to be included on any discussions of company business while he remained a director. (Ibid.) He received no communications from Cong, iTy, or WSGR for several weeks; however, at a social gathering in November of 2016, he learned that Cong was continuing to secretly operate iTy without his consent, excluding him from all company dealings, communications, and decisions. (Id., ¶ 23.)

Cong ultimately (a) hired a sales manager, (b) solicited bids for a new round of investors, (c) entered into term sheets with investors, (d) failed to lay off all iTy employees, (e) closed the company’s physical office, (f) restructured salary, and (g) added features to Plause. (FAC, ¶ 24.) He revoked Rogers’s access to the company email and Google apps and refused to restore it despite multiple requests by Rogers. (Id., ¶ 25.) He orchestrated the removal of Rogers from the board of directors in January of 2017, using stockholder written consent, and on March 19, 2017, he caused all of Rogers’s unvested shares to be repurchased. (Id., ¶¶ 26-27.)

On March 20, 2017, Cong passed a resolution reducing the board to one directorship, making himself the only remaining director of iTy; removed Rogers from all officer positions, appointing himself secretary and treasurer; and increased the total number of shares in iTy to 11 million in common stock and 4,792,788 shares of “Series A Preferred Stock.” (FAC, ¶ 32.) Cong authorized a “management rights letter” with Innogy NV in connection with the sale and issuance of the shares, and expanded the Board to three directors: Cong, a director “designated by Innogy,” and an additional director. (Id., ¶¶ 33-34.) Following two purchases of Series A Preferred Stock, Innogy owns over 1 million shares: as of September 2017, Innogy and Cong were the majority shareholders of the Series A Preferred Stock. (Id., ¶¶ 36-38.) Innogy’s employee Roland Hess was designated as a director, and he and Cong have served as the only board members and have steered iTy to act in Innogy’s interests since March 20, 2017. (Id., ¶ 35.)

Rogers has made multiple requests for access to iTy’s financial books and records, minutes, and other documentation, but Cong and WSGR have refused these requests. (FAC, ¶¶ 41-42.) On November 30, 2018, Rogers sent a letter informing Cong he would notice a shareholder meeting for January 30, 2019 and requesting shareholder information and financial documents. (Id., ¶¶ 43-45.) Unbeknownst to Rogers, Cong and Hess held a board meeting at WSGR in which they discussed dissolving the company, and on January 19, 2019, WSGR sent Rogers limited financial information, told him that iTy would cease operations and dissolve by the end of January, and requested that Rogers drop his request for a stockholder meeting. (Id., ¶¶ 46-47.) Rogers responded that he intended to proceed with the meeting and requested additional information. (Id. ¶¶ 48-51.) The meeting was delayed by Cong until February 20, at which point Cong told shareholders that iTy’s commercial contract with Innogy was its only viable contract and Innogy was the only user of its software, but indicated that iTy was still trying to close other deals because there were no prospects for a sale. (Id., ¶¶ 54-56.) Cong confirmed that iTy owed hundreds of thousands of dollars to Innogy even though Innogy was also its main customer. (Id., ¶¶ 57-58.) He refused to state whether Innogy, as iTy’s largest creditor, would receive all of its assets upon dissolution. (Id., ¶ 62.)

Rogers alleges upon information and belief that Innogy is currently developing a project called “Cultim8” using iTy’s core intellectual property, which was developed by Rogers. (FAC, ¶ 65.) Cong, Hess, and Innogy’s actions have all been fueled by Innogy’s desire to obtain iTy’s assets, including the intellectual property created by Rogers. (Id., ¶ 66.)

Based on these allegations, Rogers asserts claims for (1) fraud/intentional misrepresentation (against Cong), (2) concealment (against Cong), (3) negligent misrepresentation (against Cong), (4) breach of fiduciary duty (against Cong), (5) breach of oral contract (against Cong), (6) unjust enrichment (against Cong), (7) declaratory relief (against all defendants), (8) compliance with Corporations Code sections 1601 and 1602 (against Cong); (9) injunctive relief (against all defendants), (10) breach of fiduciary duty to minority shareholders (against Cong and the Innogy entities), (11) violation of Business & Professions Code section 17200 (against Cong and the Innogy entities), (12) breach of fiduciary duty (against Cong and Hess as directors of iTy), and (13) violation of Business & Professions Code section 17200 (against Cong and Hess as directors of iTy).

Rogers filed his original complaint in this action on February 17, 2017, naming iTy and Cong as defendants. iTy and Cong moved to stay the action pursuant to Code of Civil Procedure sections 410.30 and 418.10, urging that the mandatory forum selection clause in iTy’s certificate of incorporation required all of plaintiff’s claims to be heard in Delaware. Plaintiff responded that the SPA’s mandatory forum selection clause required that all of his claims be heard in California. In an order filed on July 7, 2017, the Court (Hon. Kuhnle) found that two claims in the original complaint were covered by the forum selection clause in the SPA and should remain in California, while the other claims must proceed in Delaware. The court stayed the present action to allow litigation in Delaware to proceed first.

Rogers appealed, and on February 14, 2019, the Court of Appeal reversed the order granting the stay and remanded the matter to this Court. (See Rogers v. iTy Labs Corp. (Cal. Ct. App., Feb. 14, 2019, No. H045347) 2019 WL 625389.) The action was reassigned to Department 1 and Rogers filed the FAC pursuant to a stipulated order. On September 9, 2019, Cong and iTy—now joined by Hesse—again moved to stay the action pursuant to the forum selection clause in iTy’s certificate of incorporation. In an order filed on November 18, 2019, the Court granted the motions to stay with respect to the first through third, fifth, sixth, twelfth, and thirteenth causes of action. The Court denied the motion in all other respects, allowing the remaining claims—including the claims for declaratory and injunctive relief asserted against all defendants—to proceed in California.

II. Attempted Service of Defendant Hess and Hess’s Participation in This Action

On August 1, 2019, plaintiff filed a “Proof of Service; Declaration of Due Diligence” regarding his attempted service of Hess. The proof of service reflects that the amendment to the original complaint naming Hess as a Doe defendant, amended summons to Hess, and motion for leave to file the FAC were mailed to Hess at two addresses:

Roland Hess Roland Hess

c/o Innogy New Ventures LLC c/o iTY Labs Corp.

437 Kipling St. 1506 Phantom Ave.

Palo Alto, CA 94301 San Jose, CA 95125

The declaration of due diligence states that process servers made several attempts to personally serve Hess at 561 Lytton Avenue, Palo Alto, CA 94301 with the same documents, as well as the “Complaint,” but were “unable to effect service.” It does not state whether the process servers left copies of the summons, complaint, and other documents they attempted to serve at Hess’s Lytton Avenue address or attempted to mail them to that address. According to the proof of service of Innogy New Ventures LLC, an individual authorized to receive service for that entity was personally served at 437 Kipling Street on July 16, 2019. However, there is no indication that this individual, or Hess, would have understood this as attempted service of Hess.

As described above, Hess and other defendants moved to stay this action pursuant to the forum selection clause in iTy’s certificate of incorporation, but their motion was denied in part. Prior to the hearing on the motion to stay, counsel for Hess, Cong, and iTy executed a joint case management statement that was filed with the Court. After the motion was resolved, the Court entered a stipulated order executed by counsel for Hess, Cong, and iTy, which stated that “the Stipulating Defendants may demur to the FAC, or may file answer(s) to the FAC in lieu of demurring …,” extended the deadline for those defendants “to file and serve their responses to the FAC” to December 13, and established a briefing schedule for any demurrers.

Instead of demurring or answering, Hess filed the instant motion to quash. According to a “Proof of Personal Service—Civil” submitted with plaintiff’s opposition papers, plaintiff then attempted to “personally serve[]” counsel for Hess, Cong, and iTy with a copy of the FAC on January 7, 2020.

III. Legal Standard

Where a defendant moves to quash based on improper service of the summons and complaint, the burden is on the plaintiff to prove the validity of service by a preponderance of the evidence. (See Boliah v. Superior Court (Bijan Fragrances, Inc.) (1999) 74 Cal.App.4th 984, 991.) In meeting this burden, the filing of a proof of service creates a rebuttable presumption that service was proper, so long as the proof of service complies with applicable statutory requirements. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1442; see also Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1205.)

IV. Analysis

Plaintiff contends he substantially complied with Code of Civil Procedure section 415.20, governing substitute service, in serving Hess with the FAC. In addition, he urges that Hess has generally appeared in this action and has thus waived any challenge to the adequacy of service.

A. Substitute Service

The declaration of due diligence described above reflects that Hess was never personally served, so substitute service was attempted. (See Code Civ. Proc., § 415.20, subd. (b); Evartt v. Superior Court (Kellett) (1979) 89 Cal.App.3d 795, 799 [where reasonable attempts to personally serve a defendant have been unsuccessful, substitute service of process is authorized].) A three-element process is required to effect substitute service: leave a copy of the summons and complaint (1) at the individual’s dwelling house, usual place of business, or usual mailing address (other than a post office box) (2) in the presence of an adult “competent member of the household” or person “apparently in charge,” who must be told what the papers are, and, thereafter, (3) mail other copies of the summons and complaint to the defendant at the place where the copies were left. (See Code Civ. Proc., § 415.20, subd. (b).)

Mailing the summons and complaint to a business address, without leaving copies with anyone at any address, does not comply with these requirements. Neither does simply leaving documents with an individual’s attorney who has not been authorized to accept service of process on the individual’s behalf. Still, plaintiff urges that while he may not have fully complied with the statute governing substitute service, he substantially complied. Substantial compliance with the statutory requirements for service may be sufficient if actual notice of the action has been received by the defendant. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1436.) However, “ ‘[s]ubstantial compliance … means actual compliance in respect to the substance essential to every reasonable objective of the statute.’ ” (Id. at p. 1439, fn. 12, quoting Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29.) There are three requirements: “First, there must have been some degree of compliance with the offended statutory requirements. Second, the objective nature and circumstances of the attempted service must have made it highly probable that it would impart the same notice as full compliance. Finally, it must in fact have imparted such notice, or at least sufficient notice to put the defendant on his defense.” (Carol Gilbert, Inc. v. Haller (2009) 179 Cal.App.4th 852, 865-866, italics original, internal citations omitted; see also American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 391 [“a finding of substantial compliance can only be sustained where (1) the record shows partial or colorable compliance with the requirement on which the objection is predicated; (2) the service relied upon by the plaintiff imparted actual notice to the defendant that the suit was pending and that he was bound to defend; and (3) the manner and objective circumstances of service were such as to make it highly likely that it would impart such notice”].)

Here, plaintiff failed to comply with even one of the three elements of substitute service, and did not partially or colorably comply with—at a minimum—the two elements that require the summons and complaint to be left with a competent member of the household or person apparently in charge. This ends the analysis. (See Carol Gilbert, Inc. v. Haller, supra, 179 Cal.App.4th at p. 866 [“Here we need look no further than the first such requirement, for this is a case … of no compliance at all.”].) The fact that Hess has actual knowledge of the action, standing alone, simply does not suffice. (See American Express Centurion Bank v. Zara, supra, 199 Cal.App.4th at p. 392 [“Actual notice of the action alone … is not a substitute for proper service and is not sufficient to confer jurisdiction.”].)

For these reasons, plaintiff did not actually or substantially comply with the requirements to serve Hess by substitute service.

B. General Appearance

Plaintiff contends that Hess generally appeared in this action by filing an unsuccessful motion to stay pursuant to Code of Civil Procedure section 418.10 (see Berg v. MTC Electronics Technologies (1998) 61 Cal.App.4th 349, 358 [“[T]he procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens pursuant to Code of Civil Procedure sections 410.30 and 418.10.”]), and by otherwise participating in the litigation to date.

A defendant submits to the court’s jurisdiction by making a general appearance in an action. A general appearance is one in which the defendant participates in the action in a manner which recognizes the court’s jurisdiction. If the defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one.

(Factor Health Management v. Superior Court (Apex Therapeutic Care, Inc.) (2005) 132 Cal.App.4th 246, 250, citations omitted.)

1. Motion to Stay

A forum non conveniens motion would typically be considered a general appearance, since the motion is premised on the assumption that the court has jurisdiction over the parties. (See Berard Construction Co. v. Municipal Court (1975) 49 Cal.App.3d 710, 714, superseded by statute on another ground as stated in In re Marriage of Perow & Uzelac (2019) 31 Cal.App.5th 984; see also Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 [forum non conveniens invokes the discretionary power of a court “to decline to exercise the jurisdiction it has”]; Sunrise Financial, LLC v. Superior Court (Overland Direct, Inc.) (2019) 32 Cal.App.5th 114, 126 [“An appearance is general if it is for any purpose other than to question the court’s jurisdiction.”].) However, subdivision (a)(2) of section 418.10 “states a … statutory exception” to this typical rule. The parties dispute the scope of that exception, and the Court must interpret the language of section 418.10 and relevant case law to resolve their dispute.

Section 418.10 governs both motions to quash for lack of personal jurisdiction (subdivision (a)(1)) and forum non conveniens motions (subdivision (a)(2)), as well as motions to dismiss for delay in prosecution (subdivision (a)(3)). Subdivision (d) of section 418.10 provides that “no 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.” Subdivision (e) provides that a defendant may make a motion under section 418.10 “and simultaneously answer, demur, or move to strike the complaint …”:

[N]o 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)(1).) “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.” (Code Civ. Proc., § 418.10, subd. (e)(3).)

As explained in Air Machine Com SRL v. Superior Court (Sukumar) (2010) 186 Cal.App.4th 414, reading subdivisions (d) and (e) together, it is apparent that if a party files a motion under section 418.10 “before or simultaneously with an act that would otherwise constitute a general appearance, under subdivision (e) of section 418.10 that party will not be deemed to have ‘generally appeared’ in the action [at the time of the simultaneous or subsequent act], but instead will be deemed to have ‘specially appeared’ and not waived the party’s jurisdictional challenge.” (Id. at p. 426.) Thus, as held by Air Machine, the trial court must consider a pending motion under section 418.10 despite any simultaneous or subsequent act by the moving party that would otherwise constitute a general appearance. The parties would seem to agree that, where a party files a motion under section 418.10 and simultaneously or subsequently takes an action that would normally constitute a general appearance, subdivision (e)(1) provides that the moving party is deemed to have generally appeared upon entry of the order denying the motion.

The parties dispute the application of subdivision (e)(1) where no such simultaneous or subsequent general appearance has occurred. According to Hess, because subdivision (d) of section 418.10 provides that “no motion under this section … shall be deemed a general appearance by the defendant,” the defendant may bring a motion to quash following the denial of another motion governed by section 418.10, so long as the defendant has not generally appeared. This position finds support in Berard Construction, which held that defendants who moved to dismiss for inconvenient forum and requested attorney fees did not make a general appearance because subdivision (a)(2) of section 418.10 “states a … statutory exception” to deeming a forum non conveniens motion a general appearance. (Berard Construction Co. v. Municipal Court, supra, 49 Cal.App.3d at p. 714; see also Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 8 [discussing Berard as consistent with the conclusion that a defendant can make either a motion to quash for lack of personal jurisdiction or a motion to dismiss for inconvenient forum without making a general appearance]; Sunrise Financial, LLC v. Superior Court, supra, 32 Cal.App.5th at p. 126, fn. 6 [“The Berard Construction court held that although the motion to dismiss on the ground of inconvenient forum would normally constitute a general appearance, this result was changed by a statute providing that a party who objects on this ground does not make a general appearance.”]; 2 Witkin, Cal. Proc. (5th ed. 2008) Jurisd., § 227 [Berard held that a “motion to dismiss on the ground of inconvenient forum concedes jurisdiction, and would normally be a general appearance, but the statute clearly exempts the motion from that effect”].) Plaintiff correctly notes that the defendants in Berard Construction had moved to quash service of summons at the same time they moved to dismiss for inconvenient forum. However, the opinion relied on the “exempt status of defendants’ inconvenient forum motion” in reaching its holding that a request for attorney fees tied to that motion did not constitute a general appearance. (Berard Construction Co. v. Municipal Court, supra, 49 Cal.App.3d at p. 715.) Still, Berard Construction—which was decided before subdivision (e) was added to section 410.10—did not address whether consecutive, as opposed to simultaneous, motions under section 418.10 are permissible.

Subdivision (e) was added to section 418.10 effective in 2003. (See Roy v. Superior Court (Lucky Star Industries, Inc.) (2005) 127 Cal.App.4th 337, 342.)

It is apparent that the intent behind the amendments to section 418.10 was to simplify procedures and reduce the risk of an inadvertent submission to jurisdiction. For example, the Senate Judiciary Committee analysis for the April 2, 2002, hearing on Senate Bill No. 1325 (2001–2002 Reg. Sess.) comments that “current California law on special and general appearances ‘is a quagmire filled with traps for the unwary.’ ”

(Roy v. Superior Court, supra, 127 Cal.App.4th at p. 342 [noting that merely asking for a continuance of a hearing had been deemed a general appearance in a precedential opinion].) Still, the Legislature stopped short of fully adopting the approach of the Federal Rules of Civil Procedure, which permit a defendant to raise a jurisdictional defect by answer. In rejecting defendants’ argument that subdivision (e)(3) of section 418.10 permitted them to file an answer and actively participate in litigation through summary judgment while preserving a jurisdictional objection, Roy reasoned that subdivision (e) “serves the cause of judicial economy by confirming the defendant’s obligation to raise the jurisdictional defect at the first possible instance….” (Id. at p. 344.)

Under the express provisions of section 418.10, subdivision (e), a challenge to personal jurisdiction is waived if a defendant demurs or moves to strike without concurrently moving to quash. This being so, it cannot be contended that the Legislature was particularly concerned to allow defendants additional time to study the issues of jurisdiction. … Subdivision (e)(1) of section 418.10 protects a defendant who moves to quash by providing that “no act ” by that party shall constitute a general appearance. Nothing could be clearer: a defendant may move to quash coupled with any other action without being deemed to have submitted to the court’s jurisdiction. However, the motion to quash remains essential.

(Roy v. Superior Court, supra, 127 Cal.App.4th at p. 345.)

Here, plaintiff cites Roy in support of his position that Hess generally appeared in this action when the Court denied his motion to stay pursuant to subdivision (e)(1) of section 418.10. However, Roy spoke in terms of a motion to quash because the defendants in that case sought to preserve the issue of jurisdiction in their answer: it did not address the issue of successive motions under section 418.10 and also did not address subdivision (d) of that section, which plainly states that “no motion under this section … shall be deemed a general appearance by the defendant.” Global Financial Distributors Inc. v. Superior Court (Perera) (2019) 35 Cal.App.5th 179, which plaintiff also cites, similarly did not address either of these issues, holding that defendants may raise forum non conveniens (unlike a jurisdictional challenge) even after making a general appearance. (See Code Civ. Proc., § 410.30.)

Considering these authorities, the Court finds no support for plaintiff’s argument that subdivision (e) of section 418.10, which was intended to eliminate jurisdictional traps for the unwary, should be read to limit subdivision (d)’s clear pronouncement that “no motion under this section … shall be deemed a general appearance by the defendant.” Berard Construction and subsequent cases have interpreted subdivision (d) as a statutory exception to deeming a forum non conveniens motion a general appearance, and there is no indication that subdivision (e) was intended to modify subdivision (d) or to address the issue of successive motions under section 418.10. Thus, the Court’s denial of Hess’s motion to stay did not cause him to make a general appearance.

2. Participation in Case Management Conference and Execution of Stipulation

Plaintiff also contends that Hess generally appeared through his counsel’s participation in a case management conference and execution of a joint case management statement and a stipulation extending Hess’s deadline to respond to the FAC. Having reviewed the case management statement and the transcript of the case management conference, the Court finds no indication that counsel for Hess “raise[d] an issue for resolution or [sought] relief available only if the court has jurisdiction over the defendant….” (Factor Health Management v. Superior Court, supra, 132 Cal.App.4th at p. 250.) Counsel’s participation was equivalent to entering a basic appearance at a preliminary status conference, which was held not to constitute a general appearance in Nam Tai Electronics, Inc. v. Titzer (2001) 93 Cal.App.4th 1301, 1307-130, disapproved of on another ground by Pavlovich v. Superior Court (DVD Copy Control Association, Inc.) (2002) 29 Cal.4th 262. Nam Tai distinguished Mansour v. Superior Court (Cellini) (1995) 38 Cal.App.4th 1750, given that the defendant in Mansour participated in a “case management evaluation,” in which the parties and the court “established a schedule for discovery and law and motion, and set a date for the mandatory settlement conference and trial,” with defendant’s counsel “list[ing] the discovery he anticipated conducting on behalf of his clients, including the out-of-state client, and actively participat[ing] in the hearing by suggesting a date for the mandatory settlement conference.” (Nam Tai Electronics, Inc. v. Titzer, supra, 93 Cal.App.4th 1301 at p. 1308.) There was no comparable participation by Hess’s counsel here.

With regard to the stipulation, subdivision (d) of section 418.10 provides that “no … 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.” While it is true that Hess’s counsel did not affirmatively raise his intention to file a motion to quash in connection with the stipulation executed by the parties, the stipulation ultimately did no more than extend Hess’s time “to file and serve [his] response[] to the FAC.” Pursuant to subdivision (d), this is not a general appearance.

For these reasons, none of the actions raised by plaintiff constitute a general appearance by Hess.

V. Conclusion and Order

Hess’s motion to quash is GRANTED.

The Court will prepare the order.