AIR MACHINE COM SRL v. >SUPERIOR > >COURT > >OF > >SAN DIEGO > >COUNTY >

















Filed
7/2/10











CERTIFIED FOR PUBLICATION





COURT
OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION
ONE



STATE
OF CALIFORNIA






>

AIR MACHINE COM SRL et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;	D054878 (San Diego County Super. Ct. No. 37-2007-00052071-CU- BC-NC)
PONANI SUKUMAR et al., Real Parties in Interest.

Proceedings
in mandate after superior court denied motion to quash service of summons. Michael B. Orfield, Judge. Petition granted.



Solomon
Ward Seidenwurm & Smith, Edward J. McIntyre and Tanya M. Schierling for
Petitioners.

Jones Day,
Elwood Lui, Jose L. Patino, Brian M. Hoffstadt and Erica L. Reilley; Horvitz
& Levy and Frederic D. Cohen for Real Parties in Interest.



Air Machine
Com SRL, an Italian limited company (COM), and Panatta Sport SRL, an Italian
limited company (Panatta), (together, petitioners) seek to overturn in this
writ of mandate proceeding the trial court's ruling that they generally
appeared (and thus forfeited their objection to personal jurisdiction) when
they jointly served a statutory offer of settlement under Code of Civil
Procedure[1] section
998 (998 offer) on real parties in interest Ponani Sukumar and Southern
California Stroke Rehabilitation Associates (together, Sukumar) while their
motions to quash service of summons for lack of jurisdiction were pending.

Petitioners
contend the trial court erred in
treating their 998 offer as a general appearance because their "act"
of serving the 998 offer fell within the purview of section 418.10, subdivision
(e)(1), which they contend "clear[ly]" applies to prevent a
defendant's involuntarily submission to jurisdiction when a defendant moves to
quash service of summons and engages in "any other action" during the pendency of the motion to quash.

As we
explain, we conclude section 418.10, subdivision (e)(1), applies to
petitioners' service of the 998 offer on Sukumar.[2] Because petitioners filed their motion to
quash under subdivision (a) of section 418.10 before[3] > they served their 998 offer on Sukumar,
and because, as we discuss post, we
interpret subdivision (e)(1) of section 418.10 broadly to include any
"act," we conclude petitioners were not deemed to have generally
appeared in the action.

We thus
grant the petition, vacate the trial court's order denying petitioners' motions
to quash service of summons for lack of personal
jurisdiction and remand the matter to the trial court with directions to
consider anew their motions to quash without regard to whether petitioners
waived their jurisdictional challenge by serving Sukumar with the 998 offer.

BACKGROUND

The facts
are not in dispute. In April 2007
Sukumar filed a complaint in the Superior Court of San Diego County against
defendants Air Machine, an Italian corporation (Air Machine), on the one hand,
and Health Tech Resources, Inc., dba Impact Fitness Systems and Thomas R.
Eggers (together, Eggers), on the other hand, for breach of contract and
various other causes of action. Sukumar
alleged in his complaint that Eggers owned Impact Fitness Systems and acted as
the United States
sales agent of Air Machine, which Sukumar alleged manufactured exercise
equipment for sale in the United States,
including in California.

Sukumar
further alleged that he entered into a contract with defendants to purchase
multiple pieces of Air Machine equipment that he intended to use in a rehabilitation
center he planned to open and operate.
However, when the exercise equipment arrived, Sukumar alleged it had
multiple defects that Eggers did not remedy, despite his promises otherwise.

In July
2007 Sukumar served petitioner COM (who claimed it had been erroneously sued as
Air Machine) under the Hague Convention.
COM and Sukumar subsequently stipulated to allow Sukumar to conduct
expedited jurisdictional discovery in the event COM moved to quash service of summons
based on lack of jurisdiction. COM filed
its motion to quash in mid-October 2007.
However, before that motion could be heard, Sukumar filed a first
amended complaint, added Panatta as a defendant and separately named COM and
Air Machine as defendants. Sukumar
served Panetta in April 2008 under the Hague Convention.

In mid-May
2008 petitioners each moved to quash service of summons of the first amended
complaint on grounds California
lacked personal jurisdiction over them.
COM and Panetta each argued they did not have minimum contacts in California
sufficient for the exercise of personal jurisdiction.[4]

Shortly
after they filed their motions to quash, petitioners served Sukumar with their
998 offer. It provides: "Pursuant to Code of Civil Procedure
section 998, Defendants [COM] and [Panatta] (collectively 'Defendants') offer
to compromise and pay Plaintiff[] [Sukumar] the total sum of Twenty Five
Thousand Dollars ($25,000.00) in full satisfaction of [Sukumar's] claims
against Defendants in this action. [¶]
This offer is expressly contingent on Plaintiffs dismissing, with prejudice,
the above-referenced action against Defendants.
[¶] Plaintiffs shall indicate their acceptance by signing and dating
below within thirty (30) days after this offer is made, or it will be deemed
withdrawn. [¶] This offer is
subject to all provisions of Code of Civil Procedure section 998, and shall be
deemed to have been made on May 28,
2008."

The 998
offer was signed by counsel of COM and Panatta, and below counsel's signature
there were signature lines for Sukumar (and his company) to accept the 998
offer. Sukumar obviously did not sign
the 998 offer.

Sukumar
opposed the quash motions, arguing that COM and Panatta were subject to
personal jurisdiction in California based on their contacts and/or those of Air
Machine, a related company, and that, in any event, they waived jurisdiction
when they served their 998 offer on him.

During
argument on their quash motions, the trial
court noted that "one of the significant purposes of a 998 is to take
advantage of the laws of the State of California which will get you significant
sums of money by way of costs, expert costs, other costs in the event that . .
. your offer is not accepted" and plaintiff fails to obtain a more
favorable judgment or award. In the
court's view, the 998 offer amounted to petitioners "availing [themselves]
of the laws of the State of California
to get . . . a significant benefit at the end of this trial."

Counsel for
COM and Panatta argued the 998 offer should not be considered an appearance
because they were "not asking the court to do anything," they were
"not asking for any relief," and the offer itself was written so as
to not mention "anything about entering judgment." Counsel for COM and Panatta also argued the
998 offer was a "backup plan" if petitioners were unable to get out
of the case on their motions to quash.

The trial
court denied the motions to quash of COM and Panatta, but granted the motion of
Air Machine. As to COM and Panatta, the
court ruled they submitted to the jurisdiction of the court when they served
the 998 offer on Sukumar in late May 2008.
The court therefore did not address whether petitioners had sufficient
minimum contacts in California to
subject them to the court's jurisdiction.

As to Air
Machine, the trial court found Sukumar did not proffer sufficient evidence to
show the contacts between Air Machine and the forum state were
"substantial, continuous and systematic," and/or to establish Air
Machine "purposefully availed itself of forum benefits with respect to the
matter in controversy; . . . the controversy is related to or arises out of
defendant's contacts with the forum; and . . . the exercise of jurisdiction
would comport with fair play and substantial justice."[5]

COM and
Panatta petitioned this court for a writ of mandate seeking relief from the
trial court's order. We issued an order
to show cause and deemed the briefs on file as the return and reply to the
order to show cause. We subsequently
asked the parties for additional briefing analyzing the legislative history of
subdivision (e) of section 418.10. In
particular, we asked whether subdivision (e):
(1) applied only to a defendant who makes a motion under section 418.10
and simultaneously demurs to, answer
or moves to strike a complaint, or whether the Legislature intended this
subdivision to apply more broadly, (2) applied only to demurrers, answers and
motions to strike, or whether the Legislature intended it to apply more
broadly, and (3) conformed California practice with respect to challenging
jurisdiction to the practice under rule 12(b) of the Federal Rules of Civil
Procedure.

DISCUSSION

It
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);
see also Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52 [" '
"A general appearance operates as a consent to jurisdiction of the person
. . . ." [Citation.]' ") Section 1014 reads in part: "A defendant appears in an action when
the defendant answers, demurs, files a notice of motion to strike, files a
notice of motion to transfer pursuant to Section 396b, moves for
reclassification pursuant to Section 403.040, gives the plaintiff written
notice of appearance, or when an attorney gives notice of appearance for the
defendant. . . ."

"The
statutory list of acts constituting an appearance [under section 1014] is not
exclusive; 'rather the term may apply to various acts which, under all of the
circumstances, are deemed to confer jurisdiction of the person. . . .' [Citation.]" (Hamilton v. Asbestos Corp. (2000) 22
Cal.4th 1127, 1147; Slaybaugh v. Superior Court (1977) 70 Cal.App.3d
216, 222 ["[A] defendant may appear in ways other than those specifically
designed in section 1014."]) Thus,
whether a party engaged in an act that amounts to an appearance is "fact
specific." (Hamilton v. Asbestos Corp., supra,
22 Cal.4th at p. 1147.)

Here,
we need not decide whether petitioners' 998 offer amounted to a general
appearance because we conclude subdivision (e) of section 418.10 governs in
this situation. We turn now to that
issue.

A. Section
418.10, Subdivision (e)

Subdivision (e) was added to section 418.10 in
2002. (Roy, supra, 127
Cal.App.4th at p. 341.) Subdivision (e)
provides: "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."[6] (Italics added.)

Subdivision (e)(1) of section 418.10
provides: "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." (Italics added.)

Subdivision
(e)(2) of section 418.10 states:
"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."

Finally,
subdivision (e)(3) of section 418.10 provides:
"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."

No
case has interpreted the word "act" in subdivision (e)(1) of section
418.10 or determined the subdivision's scope.
Petitioners, who raised this issue for the first time in their petition
for writ of mandate,[7]
contend the statutory language of subdivision (e)(1) of section 418.10 is clear
and unambiguous. Based on the plain
meaning rule, petitioners contend the words "no act" in this
subdivision means literally any action,
and thus "a defendant may move to quash coupled with any other action without being deemed to have submitted to the
court's jurisdiction." Because
petitioners filed their motions to quash before
they served Sukumar with the 998 offer, they contend their "act"
of serving the 998 offer is not deemed a general appearance within the meaning
of subdivision (e)(1) of section 418.10.

We
disagree with petitioners' contention that subdivision (e) of section 418.10
and its subparts are clear and unambiguous on their face. Read in isolation, subdivision (e) of section
418.10 appears to apply only to the situation when a defendant makes a motion
under subdivision (a) of that statute and "simultaneously" "answer[s]," "demur[s],"
or "move[s] to strike" the
complaint. (Italics added.) However, petitioners' own brief undermines
their contention subdivision (e) is unambiguous, inasmuch as petitioners also
contend the legislative history of subdivision (e) shows that a party will not
be deemed to have a made a general appearance if the party files a motion under
subdivision (a) of section 418.10 before
filing an answer, demur or motion to
strike, as opposed to filing such a motion simultaneously. (Sen.
Judiciary Com. analysis of Sen. Bill. No. 1325 (2001-2002 Reg. Sess.), as
introduced January 29, 2002, p. 4 ["[Senate Bill No. 1325] would provide
that a defendant 'may' move to quash service concurrently with a substantive
response to the complaint without being penalized for failing to move to quash
first, but does not require a concurrent filing. Under this bill, a defendant still could opt
to challenge jurisdiction with a motion to quash prior to answering,
demurring to, or moving to strike the complaint"]; Assem. Judiciary Com.
analysis of Sen. Bill No. 1325 (2001-2002 Reg. Sess.), as amended April 9, 2002, p.
4 [same].)

We
further reject petitioners' contention that subdivision (e) is clear and
unambiguous in light of the words "no act" and "including"
in subdivision (e)(1).[8] (See Fernandez
v. California Dept. of Pesticide Regulation (2008) 164 Cal.App.4th 1214,
1228 ["[W]e do not view the words of a statute in isolation, but construe
them in context, keeping in mind the statutory purpose, interpreting
legislation reasonably and attempting to give effect to the apparent purpose of
the statute."]) Indeed, the
Legislature's inclusion of these words suggests there are "acts"
other than "filing an answer, demurrer, or motion to strike" that
when undertaken by a party do not constitute an appearance until an order
denying the motion is entered (or if a writ is taken, when those proceedings
have concluded).

Because
we conclude the statutory language of subdivision (e) of section 418.10 is
susceptible of more than one reasonable interpretation, we must "examine
the context in which the language appears, adopting the construction that best
harmonizes the statute internally and with related statutes." (Rothschild
v. Tyco Internat. (US), Inc. (2000) 83 Cal.App.4th 488, 496.) "To determine the most reasonable
interpretation of a statute, we look to its legislative history and
background." (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332; see also >Granberry v. Islay Investments (1995) 9
Cal.4th 738, 744 [" 'When the language is susceptible of more than one
reasonable interpretation, . . . we look to a variety of extrinsic aids,
including the ostensible objects to be achieved, the evils to be remedied, the
legislative history, public policy, . . . and the statutory scheme of which the
statute is a part. [Citations.] '
")

B. Legislative
History

The
legislative history is silent regarding the meaning of the word "act"
in subdivision (e)(1) of section 418.10.
Subdivision (e) was introduced in Senate Bill No. 1325 in January
2002. (Sen. Bill No. 1325 (2001-2002
Reg. Sess.).) The Legislative Counsel's
Digest of Senate Bill No. 1325 states:
"The bill would permit a defendant or cross-defendant to move to
quash service of summons . . . and simultaneously answer,
demur or move to strike the complaint or cross-complaint. The bill would specify certain circumstances
under which a party is not deemed to have made a general appearance for
purposes of a court exercising its jurisdiction. [¶] The bill would declare the intent of the
Legislature in enacting its provisions to conform California
practice with respect to challenging personal jurisdiction to the practice
under Rule 12(b) of the Federal Rules of Civil Procedure." (Legis. Counsel's Dig., Sen. Bill. No. 1325
(2001-2002 Reg. Sess.).)

The
legislative history shows the Conference of Delegates of the State Bar of
California was the originator of Senate Bill No. 1325. (Sen. Judiciary Com. background information
request of Sen. Bill No. 1325 (2001-2002 Reg. Sess.), as introduced Jan. 29, 2002.) The digest of the 02-04-2001 resolution passed by the
Conference of Delegates (resolution), which set forth the original text of
Senate Bill No. 1325, states the proposed bill "[a]mends" section
418.10 "to allow a party to object while
moving to quash service without having the objections constitute a general appearance." (Sen. Judiciary Com. background information
request of Sen. Bill No. 1325 (2001-2002 Reg. Sess.), at pp. 02-04-01 and
02-04-02 of resolution.)

The
digest further states under "reasons" for the proposed bill that
"federal procedure on which [the bill] is patterned is simpler and more
expeditious and involves fewer pitfalls for the unwary than current state provisions." (Sen. Judiciary Com. background information
request of Sen. Bill No. 1325 (2001-2002 Reg. Sess.), at pp. 02-04-01 and
02-04-02 of resolution.) In addition,
the federal courts use the same "minimum contacts" standard used in
state courts to determine personal jurisdiction, and under rule 12(g) of the
Federal Rules of Civil Procedure (28 U.S.C.) (rule 12), "objections to the
merits of pleadings may be combined with objections to personal jurisdiction,
and failure to combine all such objections results in a waiver of the omitted
ones except as permitted under . . . [r]ule 12(h)(2). Under current California
procedure, however, the issue of jurisdiction in personam must be submitted first, before any other objections;
if a party makes other objections, a general appearance is made, waiving
objections to personal jurisdiction.
(See Greener v. WCAB (1993) 6
Cal.4th 1028, 1036-1037.) The result is
a multiplicity of motions and appearances,
as well as the risks of inadvertent waivers of objections to personal
jurisdiction. The federal procedure expedites cases, avoids unfair pitfalls, and
should be adopted as proposed by this resolution." (Sen. Judiciary Com. background information
request of Sen. Bill No. 1325 (2001-2002 Reg. Sess.), at p. 02-04-01 of resolution;
italics added.)

The
original version of Senate Bill No. 1325 was limited to a motion to quash
service of summons. To reduce confusion,
the Senate Judiciary Committee recommended expanding Senate Bill No. 1325 to
include other "traditional" types of "special appearances"
that are set forth in subsection (a) of section 418.10, including motions to
stay or dismiss an action on the ground of inconvenient forum and motions to
dismiss for delay in prosecution. (Sen.
Judiciary Com. analysis of Sen. Bill. No. 1325 (2001-2002 Reg. Sess.), as
introduced January
29, 2002, p. 5 [citing section 418.10, subd. (a)].)

The
Senate Judiciary Committee noted the sponsor of Senate Bill No. 1325 believed
the amendment to section 418.10 was necessary because "current California law
on special and general appearances 'is a quagmire filled with traps for the
unwary.' The basic, common law
doctrine--that a special appearance must be strictly limited to objecting to
personal jurisdiction, and that taking any other step in the action constitutes
a general appearance and consent to jurisdiction--is 'riddled with
exceptions.' . . . [¶] Ultimately,
whether any act short of filing an answer constitutes a general appearance will
depend on whether an appellate court feels that the particular act in some way
recognizes the trial court's jurisdiction.
[Citation.] According to the
sponsor, 'the inconsistency of current decisions indicates that the courts
themselves find it difficult to apply the rule.' " (Sen. Judiciary Com.
analysis of Sen. Bill No. 1325 (2001-2002 Reg. Sess.), as introduced January
29, 2002, p. 3.)

The
Senate Judiciary Committee further noted Senate Bill No. 1325 would
"conform" California
procedure to federal procedure:
"The federal courts abolished the distinctions between special and
general appearances in 1937. Since that
time, federal rule 12(b) has provided that the defenses of lack of jurisdiction
over the person, insufficiency of process, or insufficiency of service of
process may be made by motion in conjunction with a motion to dismiss for lack
of subject-matter jurisdiction--the federal equivalent of California's
demurrer." (Sen. Judiciary Com.
analysis of Sen. Bill No. 1325 (2001-2002 Reg. Sess.), as introduced January
29, 2002, p. 3.)

As
amended, the Legislative Counsel's Digest stated Senate Bill No. 1325
"would permit a defendant or cross-defendant to move to quash service of
summons, move to stay or dismiss the
action on the grounds of inconvenient forum, or move to dismiss for delay in
prosecution, and simultaneously answer, demur, or move to strike the
complaint or cross complaint."
(Legis. Counsel's Dig., Sen. Bill. No. 1325 (2001-2002 Reg. Sess.), as
amended April 9, 2002.)[9]

C. Analysis

Petitioners
argue the legislative history shows the Legislature intended subdivision (e)(1)
to apply broadly based on its inclusion of the words "act" and
"including," and its concern that California's (then) law regarding
special and general appearances was a "quagmire filled with traps for the
unwary" that led to inconsistent decisions by courts regarding what
activity would and would not be considered a general appearance. (Sen. Judiciary Com. analysis of Sen. Bill
No. 1325 (2001-2002 Reg. Sess.), as introduced January 29, 2002, p. 3.)

Sukumar
argues the word "act" should be read narrowly to solve what it claims
was a specific problem: "the
inconsistent effect given to different objections
or defenses to a
lawsuit." Sukumar further argues that
construing the word "act" in subdivision (e)(1) to include any and
all acts of a party taken during the pendency of a motion will rewrite the law
of general appearances "to create an expansive, across-the-board immunity
from forfeiture during the pendency of a motion to quash--regardless how much a
litigant seeks to obtain affirmative relief in the interim."

We conclude that
petitioners' view of subdivision (e) of section 418.10 is correct. Several factors guide us in this
determination.

First,
we note that subdivision (e)(1) specifically references section 1014, which is
a non-exhaustive statutory list of
acts constituting a general appearance.
(Hamilton v. Asbestos Corp.,
supra, 22 Cal.4th at p. 1147; Slaybaugh v. Superior Court, supra, 70 Cal.App.3d at p.
222.) It would make little sense to
limit subdivision (e)(1) to an answer, demurrer or motion to strike, or even to
an objection or defense to a lawsuit, as Sukumar urges, when the issue of
whether a party engaged in an "act" that amounts to an appearance
under section 1014 is "fact specific." (See Hamilton
v. Asbestos Corp., supra, 22
Cal.4th at p. 1147.)

Second,
if we ignored the word "including" in subdivision (e)(1) and limited
the word "act" in that subdivision to an "answer, demurrer or
[motion] to strike," or even went so far as to broaden the word "act"
to include objections or >defenses to a lawsuit, as Sukumar urges,
we would do little to alleviate the "traps for the unwary" that the
Legislature sought to eliminate with the passage of Senate Bill No. 1325. Instead, the parties would then be forced to
litigate the derivative issue of whether, for purposes of subdivision (e)(1) of
section 418.10, a party engaged in acts or activities that constitute an
"objection" or a "defense" to a lawsuit.

In
light of the Legislature's intent in enacting subdivision (e) of eliminating
the risk of inadvertent waivers of objections to personal jurisdiction based on
a step as trivial as "merely requesting a continuance of a
proceeding" (Sen. Judiciary Com. analysis of Sen. Bill No. 1325 (2001-2002
Reg. Sess.), as introduced January 29, 2002, p. 3), we refuse to spring a party
from one trap only to have that party wind up in another.

Third,
as a practical matter, a party who files a motion under subdivision (a) of
section 418.10 is not likely to engage in activity during the pendency of the
motion that has as its objective the obtaining of "affirmative
relief" in the lawsuit. To the
contrary, a decision in favor of a movant under subdivision (a) of section
418.10 avoids the delay and expense
of protracted litigation and trial. (See
Jardine v. Superior Court (1931) 213
Cal. 301, 305.) Thus, we do not believe
construing the word "act" broadly will actually encourage litigation
between parties.

Fourth,
our decision does not rewrite California law
regarding general and special appearances.
Under subdivision (e)(3) of section 418.10, a party still will be deemed
to have "generally appeared" in the action if the party fails to file
a motion under subdivision (a) of 418.10 and otherwise engages in acts or
activities that recognize the court's jurisdiction over the party. If, however, a party files a motion under
that subdivision before or simultaneously with an act that would otherwise
constitute a general appearance, 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.

With
regard to this last point, we acknowledge, as have courts interpreting
subdivision (e) before us (State Farm
General Ins. Co. v. JT's Frames, Inc. (2010) 181 Cal.App.4th 429, 441-442 ( >JT's Frames)), the Legislature's
statement that in enacting the 2002 amendment to section 418.10 it intended
" 'to conform California practice with respect to challenging personal
jurisdiction to the practice under Rule 12(b) of the Federal Rules of Civil
Procedure.' " (See Stats. 2002, ch.
69, § 2.) However, like the courts
before us, we conclude the "Legislature intended to conform California law
to federal procedures only with respect to preliminary objections to a
complaint, and not in other areas."
(JT's Frames, >supra, 181 Cal.App.4th at p. 442 [rejecting
argument that order denying defendant's motion to quash was appealable under
subdivision (e) of section 418.10 because defendant litigated the merits of the
action and thus generally appeared in the action, despite federal procedures
that allow the issue of personal jurisdiction to be litigated long after
litigation of the merits has commenced and to be appealed after the case is
resolved]; Roy, supra, 127 Cal.App.4th at p. 343 [rejecting defendants' argument
that under subdivision (e) of section 418.10 they preserved their
jurisdictional challenge when they asserted lack of personal jurisdiction as one
of their 24 affirmative defenses in their answer to the complaint and actively
participated in the merits of the litigation, even though federal procedure
allows a party to assert the defense of lack of personal jurisdiction in a
responsive pleading and to try that issue at the time of trial].)

Thus, even
though federal courts abolished the distinction between special and general
appearances in 1937 (Sen. Judiciary Com. analysis of Sen. Bill No. 1325
(2001-2002 Reg. Sess.), as introduced Jan. 29, 2002, pp. 3-4; >S.E.C. v. Wencke (9th Cir. 1986) 783
F.2d 829, 832, fn. 3), this distinction continues to be recognized in California. (Accord § 418.10, subd. (e)(1) and (2) [using
the term "generally appeared" in the
statute].)

D. Conclusion

Based
on the objects to be achieved and the evils to be remedied as demonstrated by
the legislative
history, we conclude the Legislature meant the word "act" in
subdivision (e)(1) to apply broadly. We
thus conclude the word "act" in subdivision (e)(1) of section 418.10
means any act, and is not limited to
an "act" that is defensive in nature, as Sukumar contends. (See Wilcox v. Birtwhistle (1999) 21
Cal.4th 973, 977-978, quoting People v. Jenkins (1995) 10 Cal.4th 234,
246 [In interpreting an ambiguous statute, "we 'must select the
construction that comports most closely with the apparent intent of the
Legislature, with a view to promoting rather than defeating the general purpose
of the statute' "]; Welch v. Oakland Unified School Dist. (2001) 91
Cal.App.4th 1421, 1428 [in construing a statute, courts
employ the rule "that a statute 'must be given a
reasonable and common sense interpretation consistent
with the apparent purpose and intent of the lawmakers, practical
rather than technical in nature, which upon application will result in wise
policy rather than mischief or absurdity' "].)

Here,
petitioners filed their motions to quash
under subdivision (a) of section 418.10 before
they served Sukumar with their 998 offer.
(Cf. Factor Health Management v.
Superior Court (2005) 132 Cal.App.4th 246, 252 [concluding defendants were
not protected from making a general appearance by subdivision (e)(1) of section
418.10 because they filed an ex parte application for an order setting depositions
to oppose a temporary retraining order before
they filed their joint motion to quash service of summons].) As such, based on subdivision (e)(1),
petitioners were not deemed to have "generally appeared" in the
action as a result of their "act" of serving the 998 offer on Sukumar.

DISPOSITION

Let a
peremptory writ issue directing the superior court to vacate its March 5, 2009 order denying
petitioners' motions to quash service of summons for lack of personal
jurisdiction and to conduct further proceedings on petitioners' motions to
quash without regard to whether they waived their jurisdictional challenge by
serving Sukumar with the 998 offer. The
stay issued on December 11, 2009,
is vacated. Petitioners are to recover
their costs in this writ proceeding. (Cal. Rules of Court, rule 8.493(a)(2).)





BENKE, Acting P. J.



WE CONCUR:







HUFFMAN,
J.







IRION,
J.









Publication Courtesy of California
attorney referral.

Analysis and review provided by Vista Property line attorney.

San Diego Case
Information provided by www.fearnotlaw.com

---

id=ftn1>

[1]
All further statutory references
are to the Code of Civil Procedure unless otherwise specified.