Out-of-State Litigant Did Not Waive Personal Jurisdiction, Family Court Order Reversed

Timothy Kowal, Esq.
April 1, 2021

There are a few curious turns in Marriage of Sellers (D2d6 Mar. 25, 2021) 2021 WL 1134891, No. B306844 (unpublished). While unpublished, it provides a good roadmap – with citable authority – to making a limited appearance without waiving jurisdictional challenges. And if one is inclined toward a cynical view about appellate courts' selective treatment of appealability issues as "jurisdictional," it furnishes some confirmation of that, too.

The Sellerses separated. Husband was already in Virginia with the kids. Wife was still here in California. Husband had divorce proceedings pending in Virginia. Wife petitioned here shortly after, also seeking property division.

Husband, being in Virginia, filed a motion to quash service of wife's petition for lack of personal jurisdiction and subject matter jurisdiction. The family court agreed it lacked personal jurisdiction, and granted husband's motion to quash.

So far so good, for husband. But now with husband out of the case, wife then invoked the family court's "in rem jurisdiction" over the marriage and marital property in California. So back rushed husband with another motion to quash, reminding the court it had already ruled it lacked subject matter jurisdiction.

This time, the family court ruled husband's motion to quash constituted a general appearance, so in for a penny, in for a pound.

The Second District reversed, finding husband did not make a general appearance.

Challenging Subject Matter Jurisdiction Simultaneous with a Challenge to Personal Jurisdiction Does Not Convert an Otherwise Limited Appearance to a General Appearance:

On the one hand, generally “a party who seeks relief on any basis other than a motion to quash for lack of personal jurisdiction will be deemed to have made a general appearance ....” (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52.) And: “A defendant appears in an action when the defendant ... files a notice of motion to strike ....” (Code Civ. Proc., § 1014.) Such an appearance is usually deemed to be a general appearance. (Air Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 425 (Air Machine).)

On the other hand, the filing of a motion to strike does not constitute an appearance if the defendant simultaneously makes or, as here, previously made a motion “[t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (§ 418.10, subds. (a)(1), (e)(1); Air Machine, supra, at p. 426; Roy v. Superior Court (2005) 127 Cal.App.4th 337, 345 [“Nothing could be clearer: a defendant may move to quash coupled with any other action without being deemed to have submitted to the court's jurisdiction”].)

As most attorneys know, a trial court, on its own motion, must dismiss an action if there is no subject matter jurisdiction. (Goodwine v. Superior Court of Los Angeles County (1965) 63 Cal.2d 481, 484 (Goodwine).) It would be perverse to hold that a party's attempt to aid the court's duty constituted a consent to jurisdiction.

Absence of Formal Judgment Held No Bar to Appealability:

In an unusual procedural oversight, the family court neglected to enter a judgment. (Unusual, but not rare.) The order following trial instructed a judgment be prepared by wife's counsel. But apparently none was prepared. So husband appealed from the non-final order after trial.

The court was not troubled by this:

"In the interest of judicial economy, we consider the court's ruling to be a final appealable judgment. (See Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 571.) There is no reason to delay the appeal by requiring the parties to obtain the omitted judgment."

(NOTE: I have experienced inconsistent treatment by courts on this point. See CALPodcast episode 2 on interlocutory orders. So keep the Hedwall case handy.)

Curious Finding of Waiver of Appealability Question:

Wife also sought to dismiss husband's appeal on appealability grounds. Wife argued husband should have appealed from the family court's order finding husband had made a general appearance. Instead, husband waited until after trial. This, wife argued, was too late, and husband's challenge to the earlier order was waived.

In a curious move, the Second District did not expressly disagree with wife's challenge to appealability. Instead, the court held that wife "forfeited" the claim because she "cites no authority granting the right to appeal from such a ruling."

““ ‘When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as [forfeited].’ ”” (Lee v. Kim (2019) 41 Cal.App.5th 705, 721.)

Of course, the court is correct in its implicit suggestion that an order denying a motion to quash is not an appealable order. (See Code Civ. Proc., § 904.1(a)(3) [appealable orders include orders granting a motion to quash service of summons].)

But the court cannot decide challenges to appealability by way of waiver or forfeiture. The court must of its own motion dismiss an appeal from a nonappealable order. (Efron v. Kalmanovitz (1960) 185 Cal.App.2d 149, 152.) That is because appealability goes to the court's jurisdiction.

Odd that this would be lost on the court when it was in the very act of reversing for lack of subject matter jurisdiction.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.