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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Parties in Interest.

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Introduction

The trial court refused to grant relief to extend the time to file a motion to quash for lack of personal jurisdiction. Petitioner is a small Massachusetts corporation, which was named as a Doe defendant in a wrongful death case almost two years after the lawsuit was originally filed, and which missed the deadline to respond to the complaint and challenge jurisdiction in California by two weeks. The person responsible for ensuring the summons and complaint served on the corporation were forwarded to the corporations insurance broker did not do so because of severe, emergency family crises and tragedy, involving the sudden death of her brother and the serious illness of her mother, both of which required her time and attention for several months. The corporations failure to timely respond to the complaint was excusable neglect as a matter of law, and Theodore and Sandra Premer, plaintiffs and real parties in interest, 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 requested relief.

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 Premers parents on October 1, 2004. (A separate complaint for wrongful death was filed on behalf of Mumfords father by the same law firm on the same date.)

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. Although Pollards normal practice was to follow up with the insurance broker to ensure claims had been processed, she did not do so in this case.

As Pollard explained in a declaration filed with the trial court, her brother had died unexpectedly on July 7, 2006, leaving a wife and two young children. Pollard was only in her office in a limited capacity as a result of her responsibilities to her deceased brothers family. Then, in mid-August 2006, Pollards mother became critically ill and required hospitalization. After her mother was released from the hospital, Pollard was personally involved in her home care and recovery. As Pollard stated in her declaration, [a]t the time Shoreline originally received the suit papers, on or about August 21, 2006, my presence in the offices of Shoreline [was] scarce and when I was present, I was preoccupied by my mothers care and the tragedy my family had recently experienced. My pre-occupation may have distracted me from the performance of my duties, causing me to deviate from my usual business practices.

On September 27, 2006, one week after Shorelines response to plaintiffs wrongful death complaint was due, Pollard received a telephone call from plaintiffs counsel asking about the status of Shorelines response to the complaint. Pollard called Shorelines insurance broker, and was advised the broker had never received the summons and complaint. Pollard faxed the documents to the insurance broker that same day.

Counsel for Shoreline was retained on October 3, 2006, and filed a motion to extend the time to move to quash the next day. (Shorelines counsel submitted a declaration stating he asked plaintiffs counsel for an extension of time to respond to the complaint, but plaintiffs counsel refused to grant an extension unless Shoreline agreed not to challenge jurisdiction.) The trial court denied the motion to extend time.

Discussion

The trial court denied Shorelines motion to extend time on both procedural and substantive grounds. First, the court found the motion was untimely because the extension was not requested during Shorelines time to respond to the complaint. A motion to quash service of a summons for lack of personal jurisdiction must be filed 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. (Code Civ. Proc.,  418.10, subd. (a).) Given the language of the statute, we conclude the trial court is not divested of the ability to extend a partys time to file a motion to quash based on good cause if the request for an extension of time is filed after the time to respond has expired. (CornellUniversityMedicalCollege v. Superior Court (1974) 38 Cal.App.3d 311, 314 [such statutes are not jurisdictional in the sense that the court is not empowered to grant relief during the period within which time could have been extended. Instead, relief from such a default may be granted by the superior court, upon a proper showing under Code of Civil Procedure section 473].) The Legislature well knows how to and does draft statutes to prohibit a trial court from granting an extension of time unless it does so within the original time period. (See, e.g., Code Civ. Proc.,  405.39 [The court which issued the order may, within the initial 20‑day period, extend the initial 20‑day period for one additional period not to exceed 10 days]; id.,  403.080 [The superior court may, for good cause, and prior to the expiration of the initial 20-day period, extend the time for one additional period not to exceed 10 days].) We will not read into Code of Civil Procedure section 418.10, or rewrite it to include, the limiting language urged by plaintiffs.

As to the substance of the motion to extend time, the trial court manifestly abused its discretion. In Elston v. City of Turlock (1985) 38 Cal.3d 227, 231, the plaintiffs attorney failed to timely respond to a request for admissions, and the defendant sent notice that, under former Code of Civil Procedure section 2033, subdivision (a), all facts in the requests were therefore deemed admitted. The plaintiffs attorney then moved to set aside the admissions under Code of Civil Procedure section 473, on grounds of mistake, inadvertence, surprise, or excusable neglect. (Elston v. City of Turlock, supra, 38 Cal.3d at p. 231.) The trial court denied the motion, and entered judgment against the plaintiffs based on their admissions. (Id. at pp. 231‑232.)

The Supreme Court reversed, concluding the trial court should have granted the plaintiffs motion to set aside the admissions on the basis of excusable neglect. (Elston v. City of Turlock, supra, 38 Cal.3d at p. 234.) Where, as here, the trial court denies the motion for relief from default, the strong policy in favor of trial on the merits conflicts with the general rule of deference to the trial courts exercise of discretion. [Citation.] Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails. [Citation.] Doubts are resolved in favor of the application for relief from default [citation], and reversal of an order denying relief results [citation]. Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party. [Citations.] (Id. at p. 235.)

In this case, Shorelines neglect was excusable. Pollard promptly forwarded the summons and complaint to Shorelines insurance broker upon receipt. Her declaration explained why she did not discover those documents had not been received until after Shorelines time to respond had expired. Pollards reasons were demonstrably valid and compelling. Her declaration also showed Shoreline was diligent in attempting to respond to the complaint.

Plaintiffs will suffer no prejudice if the motion to extend time is granted. They filed their complaint almost two years before adding Shoreline as a defendant. By contrast, Shorelines motion to extend was filed only two weeks after the time to respond had expired. No trial date has been set. Motions to quash by other defendants are currently pending before the trial court.

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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