49 Cal.App.3d 710, 44562, Berard Construction Co. v. Municipal Court

Docket Nº:44562
Citation:49 Cal.App.3d 710, 122 Cal.Rptr. 825
Opinion Judge:[11] Potter
Party Name:Berard Construction Co. v. Municipal Court
Attorney:[7] Kindel & Anderson, William J. Goines, Paul L. Freese, Mason H. Rose V and James P. Barber for Plaintiffs and Appellants. [8] No appearance for Respondent. [9] Kranitz & Sarrow and Stanley C. Imerman for Real Party in Interest and Respondent.
Case Date:July 02, 1975
Court:California Court of Appeals

Page 710

49 Cal.App.3d 710

122 Cal.Rptr. 825

BERARD CONSTRUCTION CO., INC., a corporation and Rene J. Berard, Appellants,



B. PERCIN, Real Party in Interest, Respondent.

Civ. 44562.

California Court of Appeal, Second District, Third Division

July 2, 1975.

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[Copyrighted Material Omitted]

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Kindel & Anderson, William J. Goines, Paul L. Freese, Mason H. Rose, and James P. Barber, Los Angeles, for appellants.

Kranitz & Sarrow, and Stanley C. Imerman, Los Angeles, for real party in interest and respondent.

No appearance by respondent Municipal Court.

POTTER, Associate Justice.

This is an appeal from an order of the superior court denying a petition for writ of mandate directed to respondent Municipal Court. Real Party in Interest B. Percin (hereinafter 'plaintiff') filed a complaint for breach of contract 1 against appellants ('defendants') in respondent municipal court. Defendants moved to quash service of summons on the ground that the court lacked jurisdiction over them, to

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dismiss the complaint on the ground of inconvenient forum, and for an award of attorney's fees under Civil Code section 1717. 2 The municipal court determined that defendant had no presence in or contacts with this state sufficient to subject it to personal jurisdiction. However, the court further held: 'The request for attorney's fee under CC 1717 by the defendants constitute (sic) a general appearance.' The claim of inconvenient forum was rejected and the motions were denied. Defendants sought a writ of mandate from the superior court directing the respondent municipal court to quash service of summons, but their petition was denied (without written opinion). Defendants appeal from the superior court judgment (denial of the petition).

Defendants' Motion for Attorney's Fees Did Not Constitute a General Appearance

Defendants' motion was made under section 418.10 of the Code of Civil Procedure, which provides as follows:

'(a) A defendant, on or before the last day of his time to plead or within such further time as the court may for good cause allow, may serve and file a notice of motion either or both:

'(1) To quash service of summons on the ground of lack of jurisdiction of the court over him.

'(2) To stay or dismiss the action on the ground of inconvenient forum.

'(b) Such notice shall designate, as the time for making the motion, a date not less than 10 nor more than 20 days after filing of the notice. The service and filing of the notice shall extend the defendant's time to plead

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until 15 days after service upon him of a written notice of entry of an order denying his motion, except that for good cause shown the court may extend the defendant's time to plead for an additional period not exceeding 20 days.

'(c) If such motion is denied by the trial court, the defendant, within 10 days after service upon him of a written notice of entry of an order of the court denying his motion, or within such further time not exceeding 20 days as the trial court may for good cause allow, and before pleading, may petition an appropriate reviewing court for a writ of mandate to require the trial court to enter its order quashing the service of summons or staying or dismissing the action. The defendant shall file or enter his responsive pleading in the trial court within the time prescribed by subdivision (b) unless, on or before the last day of his time to plead, he serves upon the adverse party and files with the trial court a notice that he has petitioned for such writ of mandate. The service and filing of such notice shall extend his time to plead until 10 days after service upon him of a written notice of the final judgment in the mandate proceeding. Such time to plead may for good cause shown be extended by the trial court for an additional period not exceeding 20 days.

'(d) No default may be entered against the defendant before expiration of his time to plead, and no motion under this section, or under Section 473 or 473.5 when joined with a 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.'

The provisions of this section, enacted in 1969, are legislatively-drawn exceptions to the general rule that a party who appears in an action is thereby subject to the jurisdiction of the court. Subdivision (a)(1) recognizes the long-standing 'special appearance' exception, under which a defendant may appear for the purpose of contesting the assertion of personal jurisdiction without thereby subjecting himself to the very jurisdiction he is challenging. Subdivision (a)(2) of section 418.10, however, states a new statutory exception. Absent this provision, defendants' motion to dismiss on the ground of inconvenient forum would have constituted a general appearance. 3

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'As stated in Zobel v. Zobel, 151 Cal. 98, it is the general rule that if an appearance is for any purpose other than to question the jurisdiction of the court it is general.' (Pfeiffer v. Ash, 92 Cal.App.2d 102, 104, 439. See also Milstein v. Ogden, 84 Cal.App.2d 229, 235; Shelley v. Casa De Oro, Ltd., 133 Cal.App. 720, 723.)

Not only is a motion to dismiss on the ground of inconvenient forum a recent statutory creation, but it is also inconsistent with and necessarily phrased in the alternative to a motion to quash service for lack of jurisdiction. An 'inconvenient forum' argument concedes jurisdiction, for it asks the court to decline to exercise the jurisdiction it constitutionally has. (See Hadler v. Western Greyhound Racing Circuit, 34 Cal.App.3d 1, 5, 109 Cal.Rptr. 502, quoting Leet v. Union Pac. R.R. Co., 25 Cal.2d 605, 609.)

Our Supreme Court said in In re Clarke, 125 Cal. 388, 392, 23:

'On general principles, a statement that a defendant or party makes a special appearance is of no consequence whatever. If he appears and objects only to the consideration of the case, or to any procedure in it, because the court has not acquired jurisdiction of the person of the defendant, the appearance is special, and no statement to that effect in the notice or motion is required or could have any effect if made. On the other hand, if he appears and asks for any relief which could only be given to a party in a pending case, or which itself would be a regular proceeding in the case, it is a general appearance no matter how carefully or expressly it may be stated that the appearance is special. It is the character of the relief asked, and not the intention of the party that it shall or shall not constitute a general appearance, which is material.' (Emphasis added.)

It is patent that in conceding jurisdiction and moving to dismiss on inconvenient forum grounds, defendants did much more than In re Clarke and related cases permit. But their so doing was statutorily exempt from being treated as a general appearance.

This exempt status of defendants' inconvenient forum motion is the underlying factor which impels us to disagree with the municipal and superior courts' treatment of defendants' application for attorney's fees.

We note, first, that if defendants' motion to quash service had been granted, the court would have been without power to award attorney's

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fees. Civil Code section 1717, under which the claim for fees was made, authorizes their award only...

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