2013-00144927-CU-CO

Thomas J. Panichas vs. Alan A. Miyake

Nature of Proceeding: Motion to Dismiss and Quash Service of Summons

Filed By: Kowalski, Michael

Defendant Alan Miyake, MD, DDS’s motion to dismiss and quash service of summons
was initially continued from September 13, 2013, to October 15, 2013 for purposes of
oral argument only to allow Plaintiff, who is incarcerated, to request oral argument
and secure a telephonic appearance. It was again continued to today’s date after
Plaintiff indicated that prison officials at the La Palma Correctional Center were not
fully cooperating in securing a telephonic appearance for the October 15, 2013,
hearing. In the ruling for the October 15 hearing, the Court indicated that the Litigation
coordinator for La Palma Correctional Center shall have Plaintiff available by
telephone on November 13, 2013 at 2:00 p.m. in order to allow plaintiff to participate in
the hearing and that it fully expected the Litigation coordinator to comply with the
Court’s directive and ensure that Plaintiff is made available by telephone. The Court
also indicated it would consider appropriate remedies in the event of noncompliance.
Having received no further indication that Plaintiff will not be able to telephonically
appear, the Court reprints the tentative ruling from the September and October
hearings below:

The Court received, but did not consider the additional papers filed by Plaintiff after the
original tentative ruling was published, specifically, Plaintiff’s “Objection to the Court’s
Tentative Ruling to Dismiss the Civil Complaint and to Quash Service” filed on
September 27, 2013. The Court continued the hearing for oral argument only. Plaintiff
was not permitted to file any additional documents. The time for any opposition to be
filed was based on the original hearing date.

Plaintiff is a California State Prisoner currently incarcerated in La Palma Correctional Center in Arizona. Concurrent with his opposition, he filed a motion to appear
telephonically at the hearing. That request is granted. However, to allow Plaintiff to
appear for oral argument, this matter is continued to October 15. To request oral
argument, Plaintiff shall notify Department 53, in writing by October 7. Plaintiff should
call Courtcall (888-88-COURT) prior to the October 15, 2013, hearing date and set up
his appearance with Courtcall. In addition, Plaintiff will need to call Courtcall prior to
the 2:00 p.m. hearing on October 15, 2013, so Courtcall can connect him to
Department 53. Moreover, the Litigation coordinator for La Palma Correctional Center
shall have Plaintiff available by telephone on October 15, 2013 at 2:00 p.m.

Plaintiff Thomas Panichas brought this action based on allegations that while he was
in Oklahoma state prison, he was treated by Defendant after he was assaulted in the
Oklahoma State Prison. Defendant is a resident of Oklahoma and has never been
present in California. Defendant moves to dismiss based upon lack of personal
jurisdiction.

When a defendant moves to quash service of process on jurisdictional grounds, the
plaintiff has the initial burden of demonstrating facts justifying the exercise of
jurisdiction. ( Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 449)

With respect to a non-resident physician, California cannot exercise personal
jurisdiction where, as here, the plaintiff alleges that the treatment constituting the
th
malpractice occurred out of state. (Prince v. Urban (1996) 49 Cal.App.4 1056, 1058.)
In opposition, Plaintiff argues that general jurisdiction exists due to Defendant’s
substantial contacts with California pursuant to a contract that the CDCR has with the
Correctional Corporation of America whereby California prisoners are housed in states
such as Oklahoma. However, there is no indication in the attached contract (between
CDCR and CCA), that Defendant, as Plaintiff claims, has a contract with the CCA to
treat California prisoners, or that the services at issue were in fact provided pursuant to
the attached contract. Nor is there any evidence to support the assertion that
Defendant “has also performed surgery and other dental related procedures to
numerous California prisoners year after year, since 2008 to present.” (Oppo. 5:22-
25.) Further, this argument contradicts the allegations of the complaint which allege
that the lawsuit is “against a private dental surgeon and does not involve any
governmental entities.” [emphasis added] (Comp. p.2, ¶ 5 (b).) It is Plaintiff’s burden
to establish the necessary facts showing that general jurisdiction exists over
Defendant. He fails to show such facts.

In addition, while Plaintiff argues that Defendant has made a general appearance, he
has not. Making a motion to dismiss and a motion to quash does not constitute a
general appearance. (E.g., CCP § 418.10(e)(1).) The instant motion is a special
appearance. A special appearance is made when a defendant appears in court for the
sole purpose of objecting to the court’s lack of jurisdiction over the defendant’s person,
without submitting to the court’s jurisdiction [see Greener v. Workers’ Comp. Appeals
Bd. (1993) 6 C4th 1028, 1036-1037; Titus v. Superior Court (1972) 23 CA3d 792, 800-
801]. Finally, Plaintiff’s argument regarding whether he is or is not innocent of the
crimes for which he is imprisoned has no relevance to the instant motion.

Given the lack of personal jurisdiction over Defendant, the motion to quash and
dismiss is granted.

In addition, Plaintiff mailed the complaint to Defendant by certified mail. While service
may be made by certified mail pursuant to CCP § 415.30, such service here was
ineffective because there was no proof of service and the complaint failed to “include
the acknowledgment of receipt of summons in the form provided by [section 415.30] or
other written acknowledgment of receipt of summons satisfactory to the Court.” (CCP
§§ 417.10(a), 417.30.) Given that service was improper and Defendant has yet to
make a general appearance, the Court has not acquired jurisdiction over Defendant
and the motion to quash is granted. (CCP § 418.10(a).)

As a result, and on this ground, the motion to dismiss is granted. In addition, the
alternative motion to quash is also granted.

Defendant’s request for judicial notice is granted.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by CRC Rule 3.1308 and Local Rule 1.06(D). Given that Plaintiff is currently
incarcerated, Defendant’s counsel shall be available at the hearing, in person, or by
telephone, in the event Plaintiff appears telephonically without following the
procedures set forth in Local Rule 1.06(B).

The clerk is directed to provide notice of this ruling to Plaintiff Thomas Panichas and to
the litigation coordinator at the La Palma Correctional Center in Arizona.