2011-00100121-CU-PO

Flora Ferrari vs. Vitas Innovative Hospice Care

Nature of Proceeding: Motion to Quash Service of Summons (Vitas Healthcare Corporation)

Filed By: Wells, Kim M.

Specially appearing defendant Vitas Healthcare Corporation’s (“Vitas”) motion to
quash service of summons and complaint is denied.

Vitas moves to quash on the sole basis that “this Court lacks personal jurisdiction over
[Vitas] because [Vitas] is not incorporated in California, has no offices or employees in
California, does not do any business in California, and because no constitutionally-
sufficient basis for personal jurisdiction exists between [Vitas] and the State of
California.” (Not. 2: 6-9.) Vitas also appears to suggest that service was defective
because the papers were served on an employee in 2011 who was not authorized to
accept service, although it did not include such basis in the notice or make any legal
argument regarding defective service. The notice controls. (CCP § 1010.) Thus, any
argument regarding defective service on Vitas’ employee is not considered.

The failure to make a motion to quash under section 418.10 “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.” (CCP § 418.10(e)(3).) Here, Vitas seeks to quash
service of a summons and complaint served in May 2011 on the basis that the Court
lacks personal jurisdiction. Pursuant to CCP § 418.10(e)(3), it has waived its
challenge to jurisdiction and/or defective service. Such waiver is consistent with the
policy regarding the “defendant’s obligation to raise the jurisdictional defect at the first
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possible instance.” (Roy v. Superior Court (2005) 127 Cal.App.4 337, 344.) On this
basis alone the motion is denied. The Court rejects Vitas’ argument in reply that the
motion is timely based on the fact that a motion pursuant to § 418.10 may be made on
or before the last day to plead which is 30 days after service of the summons and
complaint. Vitas reasons that since it was never served properly based on the fact that
its employee was not authorized to accept service, the motion is timely. The Court is
not persuaded.

Even accepting Vitas’ claim that it was improperly served because the summons and
complaint were served on an employee not authorized to accept service, it was in fact
served back in 2011, properly or improperly, and the time to bring a motion to quash
under § 418.10 was 30 days after service of summons and the complaint. That time
has long passed and the failure to file such a motion “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.” (CCP § 418.10(e)(3).)

Further, Vitas has made a general appearance in this matter. A general appearance in
an action waives any objection to personal jurisdiction, and the defendant submits to
the personal jurisdiction of the court [see, e.g., Titus v. Superior Court (1972) 23 CA3d
792, 800-801. “A general appearance by a party is equivalent to personal service of
summons on such party.” (CCP § 410.50(a).) “The underlying theory is that a
defendant makes a general appearance when he takes any part in the action or
proceeding.” (Creed v. Schultz (1983) 148 Cal.App.3d 733, 740; see also Mansour v.
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Superior Court (1995) 38 Cal.App.4 1750, 1756 [waiver of right to challenge denial of
motion to quash where defendant made general appearances in the action by issuing
deposition subpoenas and also by participating in case management procedures].)
While there are a number of Vitas related entities, Vitas itself has taken part in this
action through issuance of deposition subpoenas, serving objections to Plaintiffs’
discovery requests, producing witnesses for depositions, and appearing at depositions
through counsel who indicated they specifically represented Vitas. (McLaughlin Decl.
¶¶ 15-17, 20, Exhs. N, O, P, S.) Having made such a general appearance, Vitas
cannot now challenge service of the summons and complaint. Vitas’ reply fails to
address these specific general appearances in this case.

As a result, the Court need not and does not reach the merits of Vitas’ jurisdictional
challenge.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or other notice is required.