Pickpocket v. Pittman CA2/8 ( 2022 )

Filed 8/8/22 Pickpocket v. Pittman CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
PICKPOCKET, LLC, et al., B313086
Plaintiffs and Appellants,
(Los Angeles County
v. Super. Ct. No. 20STCV32071)
MATTHEW PITTMAN,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Daniel S. Murphy, Judge. Affirmed.
Law Offices of Olaf J. Muller and Olaf J. Muller for
Plaintiffs and Appellants.
Ivie McNeill Wyatt Purcell & Diggs, Rodney S. Diggs and
Antonio K. Kizzie for Defendant and Respondent.
_______________________
Pickpocket, LLC (Pickpocket) and its members, Michael
Glasz, Zach Wechter and Misha Kornai, brought this action
alleging that former member and manager Matthew Pittman
(Matt)1 misused Pickpocket funds. During his business dealings
with Pickpocket, Matt had provided a Montana driver’s license
and an address in Venice, California. Pickpocket’s attorney Olaf
Muller mailed a copy of the summons and complaint to the
Montana address on Matt’s driver’s license. Matt moved to quash
service of summons on the ground that he now lived in Germany.
The trial court granted the motion on that basis, finding
compliance with the Hague Convention was required but lacking.
Pickpocket and its members appeal, contending the trial
court erred in finding that compliance with the Hague
Convention was required. They further contend they properly
effectuated service on Matt pursuant to Code of Civil Procedure 2
section 415.40, which authorizes service of process by mail on
persons outside California. We affirm the order quashing service.
BACKGROUND
Pickpocket is a California limited liability company which
specializes in creating and producing videos for internet-based
companies. On or about August 10, 2019, Glasz, Wechter and
Kornai entered into an Operating Agreement for Pickpocket with
Matt. Pursuant to this agreement, Matt was a member of
Pickpocket and its manager.
1 Because we also refer to Matt’s father Danny Pittman
throughout this opinion, we use the men’s first names for clarity.
2 Further undesignated statutory references are to the Code
of Civil Procedure.
2
On February 10, 2020, Glasz, Wechter and Kornai voted to
terminate Matt as a member and manager, based on his misuse
of Pickpocket funds. Among other things, Matt allegedly misused
funds to “visit” Montana, to ship his personal DJ equipment to
Germany, and to buy flowers for his girlfriend in Germany. Matt
apparently paid back some but not all of the funds, and this
lawsuit followed.
On August 25, 2020, appellants’ attorney Muller sent the
summons and complaint in this matter to Matt at the Montana
address shown on his Montana driver’s license by certified mail,
return receipt requested. The copy of the license attached to
Pickpocket’s counsel’s declaration shows an issue date of August
5, 2019. Muller did not explain the source of this copy. On
appeal, appellants represent that Matt had provided the license
to Pickpocket “as part of their prior business dealings.” Matt also
provided Pickpocket with an address in Venice, California.
Muller subsequently received a return receipt, but the
receipt does not contain Matt’s signature. It contains random
numbers and letters which appear to be a post office code of some
sort. The address is in fact the residence of Matt’s father Danny
Pittman (Danny). Danny stated under penalty of perjury that
Matt had not lived with him for several years. According to
Matt’s California lawyer, Antonio Kizzie, Danny sent the
summons and complaint to Kizzie. After conferring with Matt,
Kizzie filed a motion to quash. In a declaration supporting the
motion, Matt stated under penalty of perjury that he currently
lived in Germany. The trial court granted the motion to quash.
3
DISCUSSION
The court issued a minute order setting forth its ruling on
the motion. The court first considered the service actually made
in the United States, finding “Plaintiff served the Summons and
Complaint (‘Summons’) on Defendant’s father, Danny Pittman
(‘D. Pittman’), at D. Pittman’s address at 730 S. Orange St. in
Missoula, Montana 59801 (‘Montana address’). . . . Plaintiffs
received confirmation that the Summons had been received at the
Montana Address via certified mail. . . . [¶] The Court notes that
no proof of service has been filed regarding the Summons.” 3
The court briefly summarized the positions of the parties
concerning this service. “Defendant argues that service at the
Montana Address is defective. The Montana Address is not
Defendant’s usual mailing address, regular place of business,
usual place of abode, or usual place of business, and D. Pittman is
not a member of Defendant’s household or in charge of
Defendant’s affairs.” “In opposition, Plaintiffs argue that service
was effectuated. In September 2020, Defendant’s counsel
emailed Plaintiffs’ counsel stating he received the Summons that
had been served at the Montana Address . . . . Plaintiffs contend
that Defendant had actual notice. (In re Marriage of Tusinger
3 Appellants contend the facts in Muller’s declaration in
opposition to the Motion to Quash constitute proof of service. We
question whether a pleading which is not labelled a proof of
service of summons, and which contains (sworn) facts buried
within the pleading which shows the mailing of the summons and
complaint, qualifies as proof of service under section 417.20. The
trial court nevertheless considered the facts showing the delivery
of summons and complaint to the Orange Street address. We
discuss the contents of Muller’s declaration later in this opinion.
4
(1985) 170 Cal.App.3d 80, 82 [(Tusinger)].)”4 The court then
stated: “Plaintiffs’ reliance on In re the Marriage of Tusinger is
misplaced and inapplicable because it does not involve an
internationally based party.”5
The trial court then turned to the subject of service in
Germany. The court found: “Defendant’s domicile at the time he
was served was in Germany. As such, the Court finds that
service at the Montana Address was improper. Defendant’s
evidence shows that Defendant has established his own
household in Germany, and that the Montana Address, which is
on his driver’s license, does not reflect his dwelling house, usual
place of abode or usual mailing address.”
The court explained: “Failure to comply with the Hague
Convention procedures voids the service even though it was made
in compliance with California law, and even though defendant
had actual notice of the lawsuit. [Citations.] As such, the
Defendant has not been properly served.”
4 Appellants accurately quoted Tusinger, which states that a
plaintiff only has to show a defendant received “actual notice” of
the summons and complaint for service pursuant to section
415.40. (Tusinger, supra, 170 Cal.App.3d at p. 82.) As appellants
now acknowledge on appeal, under Summers v. McClanahan
(2006) 140 Cal.App.4th 403, 414, actual notice is not sufficient in
and of itself.
5 On appeal, appellants complain of the trial court’s use of
the term “internationally based party” because it is not found in
any of California’s service statutes. In context, it is clear that the
trial court simply meant a party who resided outside the United
States. Use of the alternate wording in no way shows the trial
court ignored or misconstrued the language of the service
statutes.
5
Finally, the court ruled “Defendant’s request for an MSC
that was requested concurrently with the Motion to Quash, did
not constitute a general appearance. [Citations.]”
Appellants contend the trial court erred in granting the
motion to quash. Appellants make two primary arguments:
1) the Hague Convention does not apply because appellant did
not serve Matt by transmitting documents abroad and 2) service
on Matt at the Montana address was permissible pursuant to
section 415.40 and was properly effectuated. Appellants also
contend that Matt made a general appearance in this action,
which relinquishes all objections to defective service of process.
“When the evidence of jurisdictional facts is not in dispute,
the issue whether the defendant is subject to personal
jurisdiction is a legal question subject to de novo review.
[Citation.] When evidence of jurisdiction is in dispute, we accept
the trial court’s resolution of factual issues, draw all reasonable
inferences in support of the trial court’s order, and review the
trial court’s determination of factual issues for substantial
evidence.” (Burdick v. Superior Court (2015) 233 Cal.App.4th
8, 17.)
A. The Hague Convention Applies to Service under the Facts of
This Case.
Appellants contend the Hague Convention does not apply to
this action because they did not send the summons and complaint
abroad, but only to Montana.
Application of the Hague Convention is not left to the
discretion of a plaintiff. It applies when there is occasion to
transmit a judicial or extrajudicial document for service abroad.
As the California Supreme Court recently explained,
“whether ‘there is occasion to transmit a judicial or extrajudicial
6
document for service abroad’ ([Convention on the Service Abroad
of Judicial and Extrajudicial Documents in Civil or Commercial
Matters, Nov. 15, 1965, 20 U.S.T. 361, 362, T.I.A.S. No. 6638]) is
determined by reference to the law of the sending forum, in this
case California.” (Rockefeller Technology Investments (Asia) VII
v. Changzhou SinoType Technology Co., Ltd. (2020) 9 Cal.5th
125, 138.)
California’s rules on service of process are based on the
location of the person to be served and fall into one of three
categories: 1) a person inside California; 2) a person outside
California but within the United States; and 3) a person outside
the United States. (§ 413.10.) When a person is outside the
United States, California’s rules on service of process “are subject
to the provisions of the Convention on the “ ‘Service Abroad of
Judicial and Extrajudicial Documents’ in Civil or Commercial
Matters (Hague Service Convention).” (§ 413.10, subd. (c).)
Thus, as we have previously explained, when a defendant is a
resident of a foreign country at the time service was attempted,
“plaintiff was required to show that service of process on
defendant comported with the Hague Convention regarding
service on an individual in a foreign country, or a proper basis for
why the Hague Convention did not apply.” (Lebel v. Mai (2012)
210 Cal.App.4th 1154, 1160 (Lebel).)
The trial court made a factual finding that Matt’s domicile
was in Germany. There is substantial evidence to support this
finding in Danny’s declaration that Matt had not lived with him
for several years and Matt’s declaration that he currently lives in
Germany. In addition, documents offered by appellants in
opposition support Matt’s statement. In a letter sent to Matt’s
attorney in March 2020, appellants claimed Matt misused
7
appellant’s funds to “visit” Montana, to ship his personal DJ
equipment to Germany and to buy flowers for his girlfriend in
Germany. In a March 2020 letter, Matt’s attorney wrote Matt
“flew back to the states multiple times attempting to talk with
you in person to no avail.”6
Appellants did offer evidence that Matt used the Orange
Street address when he renewed his Montana driver’s license in
August 2019, before he moved to Germany. Even assuming for
the sake of argument that Matt should have, but did not, update
his address with the Montana DMV or relinquish his Montana
driver’s license when he subsequently moved to Germany,
appellants did not provide any citations showing Montana law
treated a person who moved out of state but failed to update or
relinquish their driver’s licenses as continuing to be a Montana
resident on the basis of the license address alone.7 At most, such
failure might have been viewed by the trial court as evidence
which conflicted with Matt’s statement that he resided in
Germany. The trial court, however, resolved any such potential
conflict in favor of Matt’s claim of German residency and since
the trial court’s finding is supported by substantial evidence, we
uphold it.
Because Matt was a resident of Germany, appellants were
required to show either compliance with the Hague Convention or
6 This is consistent with Matt’s attorney’s representation in
the trial court that Matt had moved to Germany to work and live
with his fiancée.
7 We use the term resident because, in the trial court,
appellants contended the address on the driver’s license was
Matt’s “home address.” Appellants did not argue in the trial
court that the Montana address was merely a mailing address.
8
“a proper basis for why the Hague Convention did not apply.”
(Lebel, supra, 210 Cal.App.4th at p. 1160.) Appellants contend
that the Hague Convention does not apply when service under
the laws of California may properly be effected in the forum
nation, here, the United States. Appellants cite a number of such
cases concerning service of process. (Severn v. Adidas
Sportschuhfabriken (1973) 33 Cal.App.3d 754, 763; Wissmiller v.
Lincoln Trail Motosports, Inc. (Ill.Ct.App. 1990) [552 N.E.2d 295];
Khachatryan v. Toyota Motor Sales, U.S.A., Inc. (C.D.Cal. 2008)
578 F. Supp.2d 1224; Volkswagenwerk Aktiengesellschaft v.
Schlunk (1988) 486 U.S. 694, 696.) These cases involve personal
service or service on a foreign corporation’s United States based
subsidiary, general manager or agent for service of process and so
do not assist appellants directly.
Appellants argue that section 415.40, which permits service
on persons outside California “only requires that a plaintiff mail
a Summons and Complaint to any mailing address for a
defendant that is located outside of California but within the
United States. After that, all a plaintiff needs to do is show that
the defendant got the papers mailed to him.” Thus, appellants
conclude, if a foreign resident defendant has “any” mailing
address in the United States, the defendant may properly be
served there, and compliance with the Hague Convention is not
required.
The contention that “any” mailing address may be used for
service under section 415.40 can only be characterized as absurd.
A phrase this broad would include any address ever used by a
person to receive mail, even if the person has not used that
address in a decade or more and does not know any person
9
currently present at that address.8 Not surprisingly, appellants
have not cited any provision of California law governing service
by mail for any purpose which permits the sender to use “any”
mailing address for a person, and we are not aware of any such
provision. We note that the broadest permissible range of
mailing locations in the authorities cited on appeal is found in
section 415.20, which permits mailing a copy of the summons and
complaint to the “person's dwelling house, usual place of abode,
usual place of business, or usual mailing address” as part of
substitute service. (§ 415.20, subd. (b).)9
We see nothing in the language of section 415.40 which
would permit the use of “any” mailing address. Section 415.40
does not use the term “mailing address” at all, let alone the
phrase “any mailing address.” It provides: “A summons may be
8 Perhaps appellants believe the term “mailing address”
itself contains inherent limitations, such as current use by the
defendant, but they do not identify any such limitations.
9 Appellants contend the mailing requirements of section
415.20 do not apply to section 415.40, and the trial court erred in
ruling that appellants had to comply with them. We will assume
for the sake of argument that this is the law. We agree the trial
court used language similar to the language found in section
415.20, but note the trial court did not refer to that section. The
first use of the language simply involved the court summarizing
Matt’s arguments. The second use came after the trial court had
ruled that service at the Montana address was improper because
Matt’s domicile was in Germany. We view it as mere surplusage.
We have reviewed the court’s ruling de novo, and reach the same
conclusion, but for slightly different reasons, that is, we find that
service on the Montana address was not proper under section
415.40 because Matt’s place of residence was in Germany.
10
served on a person outside this state . . . by sending a copy of the
summons and of the complaint to the person to be served by first-
class mail, postage prepaid, requiring a return receipt.”
(§ 415.40, italics added.) When the person is in a foreign country,
sending the summons and complaint “to the person” necessarily
requires sending the summons and complaint to the foreign
country. The Judicial Council Comment to section 415.40
reinforces the requirement that the document be sent to the
person’s physical location, explaining that the section requires
the documents to be sent “to the person on whom service is
desired, generally at his place of residence.” (Judicial Council of
Cal., reprinted at Deering’s Ann. Code Civ. Proc. (2015 ed.) foll.
§ 415.40, p. 461, italics added.) In some instances, of course, such
a location may not exist: for example, the person may have no
fixed place of residence or the defendant may be a business or
corporation which does not have a “place of residence” as that
phrase is normally used. Since Matt does have a place of
residence, and it is in Germany, that is where the summons and
complaint must be sent.
We also note section 415.40 provides that service is
“deemed complete on the 10th day after such mailing.” This
provision is reasonable because California law presumes that a
letter is received “in the ordinary course of mail” only if the letter
is “correctly addressed.” (Evid. Code, § 641.) A letter cannot be
“correctly” addressed to a person if the address is not the place
where they live or work, or a place where they are currently and
intentionally receiving mail. Appellants’ interpretation rejecting
such inquiry into the correctness of the mailing address used for
service would render the completeness clause unreasonable.
11
Appellants point to another paragraph of the Judicial
Council Comment, which states: “This method of mail service
may be used to deliver process only to a person who is outside
this state. In some cases, however, process may eventually be
forwarded and in fact delivered to the addressee within this
state. For example, such person may have given appropriate
instructions to someone to forward his mail to a place within this
state, or the plaintiff knows only such person's out-of-state
address. Regular communication by mail must, of course, exist
between the place of mailing and the place of delivery. (Cf. [Cal.
Code Civ. Proc.,] § 1012.)”10 (Judicial Council of Cal., reprinted at
Deering’s Ann. Code Civ. Proc. (2015 ed.) foll. § 415.40, p. 461.)
We think the focus of the comment is a scenario where a person
who is outside California and so subject to service pursuant to
section 415.40 for some reason actually receives the summons
and complaint within California: the Judicial Council Comment
makes clear that the person’s presence within California does not
invalidate the service by mail.
The Judicial Council Comment does offer some support for
service on a mailing address intentionally used by the person
which does not reflect his physical location, if the summons and
complaint is actually delivered to the person where he is
physically located. Assuming for the sake of argument that is the
case, appellants have not shown either such intentional use of a
mailing address or such delivery here.
10 Section 1012 does expressly specify the permissible places
of delivery under that section: “where the person on whom it is to
be made resides or has his office.”
12
B. Even Assuming Actual Delivery of Process Is Sufficient to
Effect Service, Appellants Have Not Shown Actual Delivery.
Appellants repeatedly state throughout their briefs that
they offered evidence of “actual delivery” to Matt. It is not clear
what they mean by “actual delivery.” At some points, they
appear to contend that the receipt of the summons and complaint
at the Orange Street address constituted “actual delivery” to
Matt. They contend, for example, that “[n]either the statute nor
the interpretive case law require the person receiving the mail at
[Matt’s] mailing address to be [Matt] himself.” They also appear
to contend that compliance with the procedures of section 415.40,
together with their “proof of service” was sufficient to show
“actual delivery of the paper to [Matt] under [section] 417.20.”
We agree there is no requirement that the defendant sign
the return receipt. (See, e.g.,Cruz v. Fagor America, Inc. (2007)
146 Cal.App.4th 488, 498.) When the defendant does not sign the
receipt, “the California statutory scheme (Code Civ. Proc.,
§§ 415.40 and 417.20 read together) permits completion of service
by mail when the return receipt is signed by a person so
authorized by the defendant.” (Neadeau v. Foster (1982)
129 Cal.App.3d 234, 236–237, fn. omitted; Cruz, at p. 498.)
Appellants, however, did not present evidence that the receipt
was signed by Matt or by someone authorized by him.11 Muller
stated in his declaration (which he claimed was the proof of
service) that the return receipt showed “Pittman had received the
Summons packet” but this is contradicted by the attached receipt
itself, which contains the notation “AD35C19” in the “Signature”
11 There is no evidence Danny was authorized by Matt to
receive or sign for Matt’s mail. The lack of a signature on the
return receipt suggests the opposite.
13
box and the letters “AD” in the “Received by” box. Section 417.20,
subdivision (a), provides that “proof of service shall include
evidence satisfactory to the court establishing actual delivery to
the person to be served, by a signed return receipt or other
evidence.” Appellants did not present a receipt “signed” by
anyone as that term is normally understood.12
Section 417.20 does permit “other evidence” showing actual
delivery to the person to be served, and at times appellants
contend they have provided such evidence. They claim it is
“undisputed that [Matt’s] father ‘forwarded’ the Plaintiffs’
Summons and Complaint packet to his son [Matt,]” and then
later simply state as a fact that Danny “ ‘forwarded’ them to his
son” Matt They provide no record citations to support this claim.
“ ‘When a defendant challenges that jurisdiction by
bringing a motion to quash, the burden is on the plaintiff to prove
the existence of jurisdiction by proving, inter alia, the facts
requisite to an effective service.’ ” (Lebel, supra, 210 Cal.App.4th
at p. 1160. (Floveyor Internat., Ltd. v. Superior Court (1997)
59 Cal.App.4th 789, 793 (Floveyor).) Specifically, appellants
must provide “evidence satisfactory to the court establishing
actual delivery to the person to be served, by a signed return
receipt or other evidence.” (§ 417.20, subd. (a).) Appellants are
not entitled to rely on Danny’s failure to deny “forwarding” the
summons and complaint to Matt, or on Matt’s failure to deny
actual delivery, as evidence. A defendant may “stand mute” until
the plaintiff “makes at least a prima facie showing of the validity
12 Perhaps this was the reason the court found appellants had
not filed a proof of service.
14
of service.” (Floveyor, at p. 794.)13 Appellants did not make a
prima facie showing and did not meet their burden.
Appellants did not, as they claim, prove actual delivery to
Matt through “sworn” admissions by Matt, his father Danny and
Matt’s attorney in their declarations. The declarations of Matt,
Danny and Kizzie describe delivery to Matt’s father Danny, and
Danny’s forwarding of the documents to Kizzie.
Matt stated in his declaration: “It is my understanding that
Plaintiffs attempted to serve me with a Summons and Complaint
. . . by serving my father, Mr. Danny Lee Patrick Pittman (‘Mr. D.
Pittman’) at 730 S. Orange St. in Missoula, Montana 59801.”
Danny acknowledged receiving the summons and complaint, but
does not state that he sent the documents to anyone. Matt and
Danny both declared that Danny was not in charge of any of
Matt’s affairs. Matt’s lawyer Kizzie stated in his declaration that
he was attaching a true and correct copy of the “Summons and
Complaint served upon Mr. Danny Pittman in Missoula,
Montana.” He does not state that he received a copy from Matt.
Appellants are not correct that Kizzie admitted in an email
sent on or around September 14, 2020 that Matt had received the
13 We note that appellants, like the plaintiff in Floveyor, point
to precedents which “involved circumstances where the
defendants moving to quash service supported the motion with
proof of defective service or lack of minimum contacts.” (Floveyor,
supra, 59 Cal.App.4th at p. 793.) The fact that some defendants
choose to proactively offer evidence in their motion showing
defective service does not require other defendants to do so. As
the court in Floveyor explained, the rule is that the plaintiff has
the burden of proof and a defendant may “stand mute” unless and
until the plaintiff “makes at least a prima facie showing of the
validity of service.” (Id. at p. 794.)
15
summons and complaint or that Kizzie had received the
summons and complaint from Matt. This email, attached as
Exhibit 6 to Muller’s declaration in opposition to Matt’s motion to
quash reads: “Please be advised that our firm has just been
retained to defend Mr. [Matt] Pittman in this action, and received
the Complaint that was served upon his father in Montana.”
This is simply a statement that Kizzie’s law firm has “received
the Complaint.” It cannot reasonably be understood as an
admission that Matt had received the complaint. Appellants are
mistaken in equating this email to the one before the court in
Tusinger. There is no similarity between Kizzie’s email
statement and the statement of the lawyer in Tusinger that he
was “writing with reference to the divorce petition which
[defendant] received a few days ago.” (Tusinger, supra,
170 Cal.App.3d at pp. 82–83.)
It is unclear what appellants mean when they claim that
“Pittman even attached copies (!) of Plaintiffs’ Summons and
Complaint . . to his Motion to Quash, which he had relayed to his
counsel” and “Pittman literally attached copies of the Summons
and Complaint that he received in the mail from Plaintiffs to his
Motion to Quash. How can Pittman file a motion with exhibits
attached that had been mailed to him . . . and then argue that he
never received those same exhibits?” There is no evidence Matt
sent the summons and complaint to Kizzie. If by “literally”
appellants intend to suggest that Matt physically attached the
documents to the motion, this borders on frivolous. There is
absolutely no reason to think Matt had any physical involvement
in the assembly of the motion to quash or Kizzie’s declaration
which attached the summons and complaint as exhibits. As for
Matt’s own declaration in support of the motion to quash, Matt
16
filed a declaration expressly stating he was in Germany when he
signed his original declaration in support of the motion. Kizzie’s
possession of the summons and complaint does not show actual
delivery to Matt.
Finally, appellants rely on Montana law to show that the
address on the driver’s license was a “proper mailing address.”
Appellants did not rely on Montana law in its opposition to the
motion to quash and we question the relevance of this argument
on appeal. They cite what appears to be a Montana
administrative regulation pertaining to an original application
for a driver’s license and a section of Montana statute apparently
about a requirement to notify the Montana Department of Motor
Vehicles of any change of address. They have not, however,
asked us to take judicial notice of those laws, as is required for us
to consider them. (See Evid. Code, § 452, subd. (a).) Accordingly,
we do not consider that law.14
14 We note appellants have not offered any legal citation to
support their contention that “Montana law itself makes clear
that [Matt’s] Montana address functioned as a proper mailing
address at which he could and was served with summons,” or its
contention that “By holding onto his Montana address, [Matt]
continues to be able to vote in Montana . . . and exercise similar
Montana-state related rights and privileges.”
We also note that under California law, if appellants were
relying on the address on Matt’s driver’s license, issued in August
2019, as being the address on file with the Montana DMV in
August 2020 when they mailed the summons and complaint to
that address (and therefore a proper mailing address), the burden
was on appellants to prove that fact.
17
C. Matt Did Not Make a General Appearance.
Appellants contend that an email which Kizzie sent to
Muller introducing himself as Matt’s lawyer and indicating an
intent to file a responsive pleading in the future constituted a
general appearance and the trial court erred by “disregarding”
this appearance. Perhaps the court “disregarded” this claim
because appellants did not make it in the trial court.
Section 1014 provides: “A defendant appears in an action
when he answers, demurs, . . . gives the plaintiff written notice of
his appearance, or when an attorney gives notice of appearance
for him.”
Appellants provide no legal authority or cogent reasoning
to support their claim that an attorney’s introduction to opposing
counsel as representing a party could constitute a notice of
appearance. Generally, “the acts claimed to constitute a general
appearance must amount to a showing of a ‘purpose of obtaining
any ruling or order of the court going to the merits of the case.’ ”
(Chilcote v. Pacific Air Transport (1937) 24 Cal.App.2d 32, 35.)
A stipulation between attorneys to extend time is not a
general appearance. (§418.10, subd. (d).)
Actually filing a responsive pleading does not constitute a
general appearance unless the pleading is filed before any motion
to quash. (§ 418.10, subd. (e) [noting this is an exception to
§ 1014].) There is no basis to find that simply announcing an
intent to file a responsive pleading constitutes an appearance
when the filing itself need not.
18
DISPOSITION
The order quashing service of process is affirmed.
Respondents are entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
HARUTUNIAN, J.
 Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
19