Shoreline Aviation v. Superior Court

Filed 3/2/07 Shoreline Aviation v. Superior Court CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Daniel Welch, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition granted.

Clark & Goldberg, Roger W. Clark and Robert D. Goldberg for Petitioner.

No appearance for Respondent.

Aitken Aitken & Cohn, Richard A. Cohn and Casey R. Johnson for Real Party in Interest.

* * *

Introduction

As explained in detail in another opinion filed concurrently, Shoreline Aviation, Inc. v. Superior Court (Mar. 2, 2007, G038154) [nonpub. opn.], the trial court refused to grant relief to extend the time to file a motion to quash for lack of personal jurisdiction. Petitioner, a small Massachusetts company named as a Doe defendant almost two years after the lawsuit was originally filed, missed the deadline to challenge jurisdiction by two weeks, due to excusable neglect. Plaintiff and real party in interest Paul Mumford, Sr., would not suffer any prejudice if the trial court granted the relief sought. Therefore, we issue a peremptory writ directing the trial court to grant the motion to extend time.

Statement of Facts

Paul Mumford, Jr., and Christopher Premer were killed in a plane crash on October 1, 2003. A complaint for wrongful death was filed on behalf of Mumfords father on October 1, 2004. (A separate complaint for wrongful death was filed on behalf of Premers parents by the same law firm on the same date.) That complaint is the subject of the petition for writ of mandate in Shoreline Aviation, Inc. v. Superior Court, supra, G038154.)

On July 26, 2006, the complaint was amended to name petitioner Shoreline Aviation, Inc. (Shoreline), as a Doe defendant. Ann Pollard, Shorelines general manager, received the summons and complaint on August 21, 2006, and mailed them to Shorelines insurance broker. As explained in detail in our opinion in Shoreline Aviation, Inc. v. Superior Court, supra, G038154, Pollard did not follow up with the insurance broker to ensure the claims had been processed,because of two serious tragedies that affected her personal life.

One week after Shorelines response to plaintiffs wrongful death complaint was due, Pollard was contacted by plaintiffs counsel asking about the status of Shorelines response to the complaint. Pollard learned Shorelines insurance broker had never received the summons and complaint. Counsel for Shoreline was retained within one week, and filed a motion to extend the time to move to quash the next day. The trial court denied the motion to extend.

Discussion

We incorporate by reference the entirety of our discussion in Shoreline Aviation, Inc. v. Superior Court, supra, G038154. In short, we hold the trial court abused its discretion in denying Shorelines motion to extend time on both procedural and substantive grounds. For the reasons explained in Shoreline Aviation, Inc. v. Superior Court, supra, G038154, the fact the motion to extend time was not filed during Shorelines time to respond to the complaint does not mean it was untimely. (Cornell University Medical College v. Superior Court (1974) 38 Cal.App.3d 311, 314.)

Substantively, the trial court should have granted the motion to extend time to challenge personal jurisdiction by the California courts over Shoreline. Shorelines neglect was excusable. Pollards reasons for not discovering the summons and complaint had not been received by the insurance broker were demonstrably valid and compelling. Shoreline acted diligently after learning of its failure to timely respond to the complaint. Plaintiff would not be prejudiced if the motion to extend time were to be granted. Therefore, the trial courts failure to grant the relief sought was a manifest abuse of discretion. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234-235.)

Disposition

Let a peremptory writ of mandate issue directing the trial court to vacate its order denying Shorelines motion to extend time to file a motion to quash pursuant to Code of Civil Procedure section 418.10. The trial court should enter a new and different order granting the motion to extend time.

No costs are awarded for this interim proceeding, but may be allowed to the party ultimately prevailing, in the discretion of the trial court.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

ARONSON, J.

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