Q. How should I handle a motion to quash in a family law proceeding when
the other party brings it up at the first hearing?
Anticipating and Opposing Last Minute, Bogus, Motions to Quash Service
of Summons or RFO's
So, I was faced with an attorney who've I've been up against a
few times before today, who always plays the last minute game of subterfuge
and distraction. The last time I opposed her, her client was sanctioned
Family Code section 271 - and her former client pays us a portion each month like clockwork (thank
you very much).
This time the issue involved service upon her client (a same-sex RDP with
mine) of the Summons, Petition, and our Request for Partner Support. Although
I have the highest respect for the Judge who heard the matter today (not
local), it is obvious to me that a lot of judges and lawyers don't
understand the appropriate procedures for contesting service of process.
In this case, the other party filed a Declaration claiming he was on a
flight to Hawaii when he was in fact home and was served, but to my disappointment
the Judge wanted to bend over backwards to give the other party an opportunity
to dispute that he was served by our Santa Ana process server (whom I
don't know but, as is often the case, out of town service has to be
farmed out to someone local). I have every reason to believe the service
was valid, and the other side's conduct only validates my assumption.
The Respondent's declaration, as discussed below, waived any objections
to service challenges. As a result, his attorney committed malpractice
(unless her only goal was only to gain a continuance, as I suspect). She
sent the Declaration out regular mail last Friday, fully intending to
give it to me for the first time this morning - as she did. This happens
way too often, and Family Court Judges need to act to protect both sides
from ambush. However, they often are - quite reasonably - constrained
by ideas of fairness, which is fine, as long as we attorneys and litigants
follow the rules that we seek protection by. Fairness is great, but "out-spouses"
deserve it too.
I've been wanting to share some of our firm's pleadings with the
Enlightened Divorce Blog™ readership, and maybe this is the way to do it - this is cut and pasted
from the Points and Authorities we will be filing seeking consequential
attorney fees and sanctions. I may start doing more of this if you find
Ultimately, the hearing did get continued 30 days, but we aren't done
yet - as is clear from what follows, which will include a request for
all attorney fees the other side caused my client. Continuances, like
poop, happen. And shouldn't be taken personally.
Summary of Argument
Petitioner does not dispute the power of this Court to manage its calendar
and to grant continuances that it deems in “the interests of justice”.
Instead, Petitioner by his counsel hopes that the efficient administration
of justice as between attorneys will follow well established rules. Otherwise
family law is nothing better than the “Wild, Wild, West” and
miscarriages of justice and procedure will not only continue, but will
On August 4, 2013, Respondent was served with the Summons, Petition, and
Request for Orders, among other things. On August 24, 2013, Respondent
executed a “Declaration of John Smith (Specially Appearing)"
dated August 24, which Respondent’s attorney belatedly filed on
Friday, August 30, 2013, before the Labor Day Weekend, by which she purported
to serve Petitioner’s attorney (us) by regular mail, only.
Respondent’s counsel gave no explanation at the hearing that occurred
on September 3, 2013, when she - or the Respondent - first supposedly
learned that Respondent had allegedly been served. Nor did Respondent’s
counsel explain why she did not file or serve the declaration of Respondent
prior to August 30, and then only by regular mail rather than by some
other means intended and designed to give Petitioner and his attorney
notice of the contentions that Respondent would make at the September
3 hearing. Instead, she hand delivered Respondent’s “Declaration”
upon Petitioner’s counsel the morning of the hearing that contained
a ‘whited’ out inadmissible hearsay document of unknown origin
consisting of a supposed flight plan - long after it was possible for
Petitioner’s counsel to research the legal issues (rules relating
to special appearances and Motions to Quash) or the factual issues (an
inquiry of the circumstances claimed by Jim Jones (not his name) who alleges
under penalty of perjury that he did in fact fully serve the Respondent
with the Summons, etc.)
POINTS AND AUTHORITIES
Respondent Has Entered a General Appearance, and Entered It on August 30, 2013,
Before the Subject Hearing
Petitioner properly objected that pursuant to recently revised Cal.Rules
of Court, Rule 5.62, that (1) no such thing as a “Special Appearance”
to contest jurisdiction by reason of service of process exists where a
party fails to file a noticed motion to quash the service, or the proceedings;
(2) that the Respondent himself entered a general appearance by having
filed his Declaration on August 30, 2013; and that (3) a Motion to Quash
must be filed within 30 days of the purported service or it is waived
by operation of law.
There is no such thing as a "special appearance" in California
- the common law distinction has been abolished. Hogoboom & King,
California Practice Guide,
Family Law, section 4:6. As they state, "Essentially,
unless respondent files a motion to quash service of summons within the 30-day
response period (or any other period allowed by the court), a personal
jurisdiction challenge is waived and any other pleading filed or action
taken in the case is a 'general appearance'." [Italics in
orig]. However, the cases still use the terms.
Indeed, as in general civil cases, the respondent also enters a general
appearance by asking for any relief or by otherwise participating in the
action in a manner that recognizes the court's authority over his
or her person. Hogoboom & King, supra, section 4:7. Moreover, a party's
own characterization of an appearance as a "special appearance"
is not conclusive for purposes of determining whether a party "consented"
to the court's personal jurisdiction by appearing in the action. [See Szynalski v. Super.Ct. (Rosenthal & Co., LLC) (2009) 172 CA4th 1, at 11]. "On general principles, a statement that
a defendant or party makes a special appearance is of no consequence whatever.
. . . [I]f 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”.
In re Clarke (1899) 125 C. 388, at 392; see generally , 2 Witkin, Cal. Procedure (5th
ed. 2008) Jurisdiction, section 207, pp. 815-817.
Failing to properly challenge personal jurisdiction within the time alotted
and appearing to request a continuance also waives challenges to jurisdiction. [See In re Vanessa Q. (2010) 187 CA4th 128, at 135 - Hague Convention case]. Indeed, "[a]
general appearance operates as a consent to jurisdiction of the person,
dispensing with the requirement of service of process, and curing defects
in service."Fireman's Fund
Ins. Co. v. Sparks Construction, Inc. (2004) 111 CA4th 1135, 1145.
As shown below, there is only one statutorily authorized mechanism for
challenging jurisdiction, whether it be for alleged defective service
of the Summons and Petition or for purposes of claiming no minimum contacts
to give rise to California personal jurisdiction: A noticed motion under
CCP section 418.10.
Taking any action other than the requisite noticed motion to quash constitutes
a general appearance that cannot thereafter be negated by the filing of a motion to quash.
Hogoboom & King,
supra, section 4:8.1 (and cases cited therein).
Family Code section 210 provides as follows:
“Except to the extent that any other statute or rules adopted by
the Judicial Council provide applicable rules, the rules of practice and
procedure applicable to civil actions generally, including the provisions
of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil
Procedure, apply to, and constitute the rules of practice and procedure
in, proceedings under this code.” [Emphasis added].
The Court on September 3, 2013, declared that it was treating Respondent’s
Declaration as a Motion to Quash or other jurisdictional challenge. That
filing was not a Motion to Quash, nor did it contain any Notice of Motion
to Quash language. This Court could, certainly, order the hearing continued
as it deemed necessary and proper, but that is not what it did.
California Rule of Court 5.62 (Title 5.Family and Juvenile Rules, Division
1. Family Rules Chapter 4. Starting and Responding to a Family Law Case;
Service of Papers. Article 2. Initial Pleadings) states:
Except as provided in
Code of Civil Procedure section 418.10, a respondent or defendant is deemed to have appeared in a proceeding
when he or she files:
(1) A response or answer;
(2) A notice of motion to strike, under section 435 of the Code of Civil
(3) A notice of motion to transfer the proceeding under section 395 of
the Code of Civil Procedure; or
(4) A written notice of his or her appearance.
(b) Notice required after appearance
After appearance, the respondent or defendant or his or her attorney is
entitled to notice of all subsequent proceedings of which notice is required
to be given by these rules or in civil actions generally.
(c) No notice required
Where a respondent or defendant has not appeared, notice of subsequent
proceedings need not be given to the respondent or defendant except as
provided in these rules.” [Emphasis added].
Code of Civil Procedure section 418.10 provides:
“(a) A defendant, on or before the last day of his or her time to
plead or within any further time that the court may for good cause allow,
may serve and file a notice of motion for one or more of the following purposes:
(1) To quash service of summons on the ground of lack of jurisdiction of
the court over him or her.
(2) To stay or dismiss the action on the ground of inconvenient forum.
(3) To dismiss the action pursuant to the applicable provisions of Chapter
1.5 (commencing with Section 583.110) of Title 8.
(b) The notice shall designate, as the time for making the motion, a date
not more than 30 days after filing of the notice. The notice shall be
served in the same manner, and at the same times, prescribed by subdivision
(b) of Section 1005. The service and filing of the notice shall extend
the defendant's time to plead until 15 days after service upon him
or her of a written notice of entry of an order denying his or her 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 the motion is denied by the trial court, the defendant, within 10
days after service upon him or her of a written notice of entry of an
order of the court denying his or her motion, or within any further time
not exceeding 20 days that 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 or her responsive pleading in the trial court
within the time prescribed by subdivision (b) unless, on or before the
last day of the defendant's time to plead, he or she serves upon the
adverse party and files with the trial court a notice that he or she has
petitioned for a writ of mandate. The service and filing of the notice
shall extend the defendant's time to plead until 10 days after service
upon him or her of a written notice of the final judgment in the mandate
The 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 or her 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.
(e) A defendant or cross-defendant may make a motion under this section
and simultaneously answer, demur, or move to strike the complaint or cross-complaint.
(1) Notwithstanding Section 1014, no 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.
(2) If the motion made under this section is denied and the defendant or
cross-defendant petitions for a writ of mandate pursuant to subdivision
(c), the defendant or cross-defendant is not deemed to have generally
appeared until the proceedings on the writ petition have finally concluded.
(3) 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.”
Cal.Rules of Court, Rule 5.74(1) defines a "pleading" as "a
petition, complaint, application, objection, answer, response, notice,
request for orders, statement of interest, report, or account filed in
proceedings under the Family Code."
Clearly, a “motion” and “notice of motion” is required
for any attack on the efficacy of service, not a mere “Declaration”
stating objections. When Mr. Smith filed his Declaration without the motion
mandated by CCP section 418.20. Frankly, trial courts don’t have
discretion to ignore the dictates of this statute - although they certainly
have the right to order continuances “in the interests of justice”.
Weil & Brown, of The Rutter Group, California Practice Guide,
Civil Procedure Before Trial, at section 3:165.3 (a true copy of which is attached hereto as EXHIBIT
1) state these principles as follows:
“Failure to make a 418.10 motion to quash ‘at the time of filing
a demurrer or motion to strike constitutes a waiver; of the issue of lack
of personal jurisdiction. [C.C.P. section 418.10(e)(3) (emphasis added).
Although the statute mentions only a ‘demurrer or motion to strike’
(omitting an answer), it is interpreted to mean the time of filing any
response. I.e., C.C.P. section 418.1 provides the exclusive procedure
for challenging personal jurisdiction at the outset. [Roy v. Sup. Ct.
(Lucky Star), 127 CA4th 337, 345, 25 CR3d 488, 494].
(1) [3:165.4]. Application: Thus, a defendant who raises lack of personal
jurisdiction in its answer without filing a section 418.10 motion to quash
has made a general appearance. [Roy v. Sup. Ct. (Lucky Star), supra, 127
CA4th at 341, 25 CR3d at 491]”
[Italics in original]. Once the responding party has filed anything else,
"it is too late to file a motion to quash." Weil & Brow,
supra, at section 3:378.5.
Weil & Brown,
supra, at section 3:158 also state: “A general appearance by a party is
equivalent to personal service of summons on that party [C.C.P. section
415.50(a); see Fireman’s Fund Ins. Co. v. Sparks Constr., Inc. (2004)
114 CA4TH 1135, 1145, 8 CR3d 446, 453 - by making general appearance,
defendant forfeits any objection to defective service even if unaware
such objection was available.” [Italics in original]. A true and
correct copy of this Treatise section is attached hereto as EXHIBIT 2.
Finally, Weil & Brown note that no general appearance is made if a
C.C.P. section 418.10 motion to quash is timely made - “anything
beyond that is likely to be treated as a general appearance and should
be preceded or accompanied by a motion to quash in order to preserve objections
to jurisdiction.” Weil & Brown,
supra, at section 3:165 through 3:165.2.
Because Mr. Smith filed a Declaration on August 30th, he waived any objection
that he was not properly served. This reality is jurisdictional by statute;
is not a matter for the exercise of the court's discretion, including
'treating' Mr. Smith's Declaration as a motion or notice of motion.
Respondent’s Counsel Violated The Meet and Confer Rules Required
By Cal.Rules of Court,
Rule 5.98 Before The Subject Hearing
Newly enacted Cal.Rules of Court,
Rule 5.98 mandates meet and confer between parties and counsel to avoid ambush and
surprise. It states:
“(a) Meet and confer
All parties and all attorneys are required to meet and confer in person,
by telephone, or as ordered by the court, before the date of the hearing
relating to a Request for Order (FL-300). During this time, parties must
discuss and make a good faith attempt to settle all issues, even if a
complete settlement is not possible and only conditional agreements are
made. The requirement to meet and confer does not apply to cases involving
(b) Document exchange
Before or while conferring, parties must exchange all documentary evidence
that is to be relied on for proof of any material fact at the hearing.
At the hearing, the court may decline to consider documents that were
not given to the other party before the hearing as required under this
rule. The requirement to exchange documents does not relate to documents
that are submitted primarily for rebuttal or impeachment purposes.”
Attorney ______ in this case, who knew of Petitioner and the existence
and identity of Petitioner’s counsel, had an absolute duty to contact
Petitioner’s counsel before showing up with paperwork at a hearing
for the first time when she’d filed but not served it prior to September 3, 2013.
Last-Minute Pleadings Must be Served in a Manner Designed to Give Immediate Notice
and Cannot Be Served for the First Time at a Hearing
It is a basic procedural principle that service of papers or pleadings
must be served in a manner intended to give
immediate notice, and not by regular mail as opposing counsel did in this case. Per
C.C.P. section 1005(c) overnight mail must be reasonably calculated to ensure delivery to the
other side not later then close of the next business day after the papers
are filed. Here, opposing counsel, who full well knew my email and fax
number, simply dropped them in the mail.
This conduct is not okay if the Court wishes that
both sides enjoy due process. By all means, if you catch us or our clients
lying or cheating, spank us! But otherwise, give us justice!
(That last part won't be in the final Points and Authorities in quite
that way, but we do mean it!) No client of ours has ever been sanctioned,
and none have been sued for breach of fiduciary duty.
TWA - good luck in the divorce trenches!