Filed 5/5/14 Wai Feng Trading Co. v. Superior Court CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



WAI FENG TRADING CO., LTD.,                                      D064970

         Petitioner,                                             (San Diego County Super. Ct. No.
                                                                  37-2012-00085412-CU-PO-CTL)
         v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

         Respondent;

THE PLUMBER'S CHOICE,

         Real Party in Interest.


         PETITION for writ of mandate challenging an order of the Superior Court of San

Diego County, Joel R. Wohlfeil, Judge. Relief granted.

         Law Offices of Linda M. Libertucci, Sarah Yoseloff and Daniel Chang for

Petitioners.

         No appearance for Respondent.

         Chapman Glucksman Dean Roeb & Barger and David A. Napper for Real Party in

Interest.
       Wai Feng Trading Co., Ltd., a Canadian limited company (Wai Feng), filed a

petition for writ of mandate challenging an order denying its motion to quash service of

the summons and cross-complaint by The Plumber's Choice, also known as The

Plumber's Choice, Inc. (PC). Wai Feng contends the trial court erred by denying its

motion to quash because: (1) there are insufficient grounds for the court to assert

jurisdiction over it; (2) the evidence is insufficient to support the court's finding

Wai Feng agreed to answer PC's cross-complaint against it; (3) even if it had agreed to

answer that cross-complaint, that agreement did not constitute a waiver of its objections,

or consent, to jurisdiction because Code of Civil Procedure1 section 418.10, subdivision

(e), allowed it to file an answer simultaneously with a motion to quash without making a

general appearance; (4) PC's e-mail confirmation of discussions with Wai Feng did not

show its consent to the court's jurisdiction over it; and (5) personal jurisdiction based on

an oral representation would be contrary to public policy. Because section 418.10,

subdivision (e), allows a party to simultaneously file an answer and a motion to quash

without making a general appearance and thereby submitting to the jurisdiction of the

court, we conclude the trial court erred by denying Wai Feng's motion to quash.

                   FACTUAL AND PROCEDURAL BACKGROUND

       State Farm General Insurance Company filed a subrogation action against David

B. Littlefield, D.D.S., a dental corporation (DBL), and other defendants arising out of




1      All statutory references are to the Code of Civil Procedure.

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water damage to a property. DBL apparently filed a cross-complaint against PC,

Wai Feng, and other cross-defendants.

       On March 13, 2013, PC filed a cross-complaint against Wai Feng and other cross-

defendants. On or about August 30, Wai Feng's counsel contacted PC's counsel and

represented he would accept service of PC's cross-complaint against Wai Feng and

respond by October 3.

       On October 3, Wai Feng filed a motion to quash service of PC's summons and

cross-complaint against it for lack of personal jurisdiction. PC opposed the motion,

arguing Wai Feng's counsel had agreed to answer the cross-complaint. PC attached to its

opposition a copy of an e-mail dated August 30, 2013, from PC's counsel to Wai Feng's

counsel, stating:

            "Pursuant to our conversation yesterday and your message of today's
            date, please let this e-mail confirm that you have agreed to accept
            service of [PC's] Cross-Complaints filed against [Wai Feng] in the
            above matter. . . . [PC] agrees to provide you with 30 days from
            September 3, 2013[,] to answer [PC's] Cross-Complaints up to and
            including October 3, 2013. [¶] Please let me know immediately if
            you disagree with any of the foregoing."

Wai Feng filed its reply to PC's opposition. In support of its reply, Wai Feng submitted

the declaration of its counsel, Charles Palmer, stating that "[a]t no time did I agree to

waive Wai Feng's right to plead to this cross-complaint, and the date of October 3,

2013[,] was agreed upon as the date to respond to this Cross-Complaint as permitted by

statute."

       On November 8, 2013, the trial court issued a tentative ruling on Wai Feng's

motion to quash. The court found PC had not met its burden to prove Wai Feng had

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sufficient minimum contacts with California to justify the court's exercise of personal

jurisdiction over it. However, based on the e-mail from PC's counsel to Wai Feng's

counsel, the court found Wai Feng had agreed to answer PC's cross-complaint. As a

result, the court tentatively denied Wai Feng's motion to quash. On November 13, after

hearing arguments of counsel, the trial court issued an order denying Wai Feng's motion

to quash. In so doing, the court confirmed its tentative ruling and further observed that

section 418.10, subdivision (e), provides in part: "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) . . . [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 . . . ." The court noted that once a motion

to quash is denied or writ proceedings challenging that denial have concluded, the actions

taken by a defendant while the motion or writ proceeding was pending will be deemed to

constitute a general appearance for purposes of jurisdiction over the defendant.

       Wai Feng filed the instant petition for writ of mandate challenging the order

denying its motion to quash. PC filed an informal response to the petition. We issued an

order to show cause why the relief requested in the petition should not be granted.

Because PC did not timely file an objection, we consider its informal response as its

return to the order to show cause.




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                                      DISCUSSION

                                              I

                         Personal Jurisdiction and Section 418.10

       "[I]t has long been the rule in California that a party waives any objection to the

court's exercise of personal jurisdiction when the party makes a general appearance in the

action." (Roy v. Superior Court (2005) 127 Cal.App.4th 337, 341 (Roy).) In general, an

answer to a complaint is a general appearance. (Ibid.; § 1014.) Section 1014 provides in

part: "A defendant appears in an action when the defendant answers . . . ."

       "Section 418.10 governs the procedure for making a motion to quash service or

dismiss or stay an action on the basis of lack of jurisdiction or inconvenient forum."

(Roy, supra, 127 Cal.App.4th at p. 341.) Section 418.10, subdivision (a), provides:

          "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. . . ."

In 2002, subdivision (e) was added to section 418.10, providing:

          "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.



                                             5
          "(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."
          (Italics added.)

       Therefore, to the extent a cross-defendant files a motion to quash simultaneously

with filing an answer or before denial of that motion is final, it has not generally appeared

in the action for purposes of personal jurisdiction. (§ 418.10, subd. (e)(1); Air Machine

Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 417, 426-428 [no general

appearance by defendant that filed motion to quash and then served a section 998 offer on

plaintiff while motion was pending].) To that extent, section 418.10, subdivision (e),

"abolishes the old rule" set forth in section 1014. (Roy, supra, 127 Cal.App.4th at

p. 341.) Under section 418.10, subdivision (e), "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, at p. 345.) "If . . . a party files a

motion [to quash] before or simultaneously with an act that would otherwise constitute a

general appearance [e.g., filing an answer], under subdivision (e) of section 418.10 that

party will not be deemed to have 'generally appeared' in the action, but instead will be

deemed to have 'specially appeared' and not waived the party's jurisdictional challenge."

(Air Machine, at p. 426.)



                                             6
                                              II

                   Effect of Wai Feng's Purported Agreement to Answer

       Wai Feng contends the trial court erred by finding its purported agreement to

answer PC's cross-complaint, in effect, constituted a waiver of its objections, or consent,

to the court's jurisdiction over it. Wai Feng asserts that even had it agreed to answer the

cross-complaint, section 418.10, subdivision (e), allowed it to file an answer

simultaneously with a motion to quash, or before a decision on its motion is final, without

making a general appearance; therefore, any agreement by it to answer cannot be deemed

a waiver of its right to file a motion to quash or otherwise challenge the court's

jurisdiction over it. In response, PC argues, in a conclusory manner, Wai Feng's

agreement to answer the cross-complaint constituted a waiver of its right to file a motion

to quash, despite the provisions of section 418.10, subdivision (e).

       Based on our application of section 418.10, subdivision (e), to the evidence in this

case, we conclude Wai Feng did not waive, either implicitly or expressly, its objections

or consent to the court's jurisdiction over it. Assuming arguendo Wai Feng agreed to file

an answer, it cannot reasonably be inferred from that agreement that it also agreed to

waive its objections or consented to the court's jurisdiction over it. As discussed above,

section 418.10, subdivision (e), allows a cross-defendant to simultaneously file an answer

and a motion to quash without those actions constituting a general appearance for

purposes of personal jurisdiction. (§ 418.10, subd. (e)(1); Air Machine Com SRL v.

Superior Court, supra, 186 Cal.App.4th at pp. 417, 426-428; Roy, supra, 127

Cal.App.4th at p. 345.) Under section 418.10, subdivision (e), "a [cross-]defendant may

                                              7
move to quash coupled with any other action [e.g., filing an answer] without being

deemed to have submitted to the court's jurisdiction." (Roy, at p. 345.) Therefore, absent

an express waiver by a cross-defendant of its right to file a motion to quash or its express

consent to jurisdiction, any agreement to file an answer cannot be deemed to constitute an

implied waiver by the cross-defendant of its objections or consent to the court's

jurisdiction over it.

       Based on our review of the record in this case, there is no evidence showing

Wai Feng expressly consented to the court's jurisdiction or expressly waived its right to

file a motion to quash. Therefore, we conclude the trial court erred by finding

Wai Feng's purported agreement to answer PC's cross-complaint, in effect, constituted a

waiver of its objections or consent to the court's jurisdiction over it.2 Because the trial

court found PC had not carried its burden to prove Wai Feng had sufficient minimum

contacts with California to justify the court's exercise of personal jurisdiction over it, the

trial court should have granted the motion to quash. We therefore grant the relief and

will issue a writ directing the court to vacate its order denying the motion and issue a new

order granting that motion.




2       Without citation to supporting evidence or substantive analysis of the facts and
law, PC argues the "time had passed for [Wai Feng] to file any potentially dispositive
pleading." We are not persuaded by PC's conclusory argument. In any event, the trial
court expressly found PC had not carried its burden to prove Wai Feng had sufficient
minimum contacts with California to justify the court's exercise of personal jurisdiction
over it. Therefore, PC has not shown the statutory 30-day period for filing an answer
expired by the time Wai Feng filed its motion to quash. (See § 432.10.)

                                               8
                                              III

                               Consent to Court's Jurisdiction

        Wai Feng contends the trial court also erred by implicitly finding its purported

agreement to answer the cross-complaint constituted its consent to the court's jurisdiction

over it. Wai Feng asserts PC's e-mail confirmation of discussions with it did not show its

consent to the court's jurisdiction. That e-mail stated in pertinent part:

            "[P]lease let this e-mail confirm that you have agreed to accept
            service of [PC's] Cross-Complaints filed against [Wai Feng] in the
            above matter. . . . [PC] agrees to provide you with 30 days from
            September 3, 2013[,] to answer [PC's] Cross-Complaints up to and
            including October 3, 2013. [¶] Please let me know immediately if
            you disagree with any of the foregoing."

There is no language in that e-mail dealing with the court's jurisdiction over Wai Feng,

much less its consent to jurisdiction. Contrary to PC's apparent assertion, the e-mail does

not support a reasonable inference that Wai Feng consented, either implicitly or

expressly, to the court's jurisdiction over it. To the extent the trial court found otherwise,

it erred.

                                              IV

                                   Remaining Contentions

        Because we dispose of the petition on the above grounds, we need not, and do not,

address Wai Feng's remaining contentions.

                                       DISPOSITION

        Let a writ issue directing the trial court to vacate its order of November 13, 2013,

denying the motion to quash service and issue a new order granting that motion.


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Petitioner shall recover its costs in the writ proceeding. (Cal. Rules of Court, rule

8.493(a)(1)(A).) This opinion shall be final as to this court on May15, 2014. (Cal. Rules

of Court, rule 8.490(b)(2)(A).)




                                                                            McDONALD, J.

WE CONCUR:


NARES, Acting P. J.


IRION, J.




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