YOUNG v. ADVANCED MARKETS LLC, No. G054339 (Cal. App. 1/23/2018) [UNPUBLISHED]


Filed 1/23/18? Young v. Advanced Markets 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.?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

KURT YOUNG,

Plaintiff and Appellant,

v.

ADVANCED MARKETS LLC et al.,

Defendants and Respondents.

 

 

G054339

(Super. Ct. No. 30-2014-00747226)

O P I N I O N

 

Appeal from an order of the Superior Court of Orange County, Frederick P. Aguirre, Judge.? Affirmed.

The Dewberry Law Firm and Robert H. Dewberry for Plaintiff and Appellant.

Law Offices of Richard A. Marcus and Richard A. Marcus for Defendants and Respondents.

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??????????? ??????????? This court previously affirmed a trial court ruling that it lacked personal jurisdiction over Velocity Trade LLC and Advanced Markets LLC (collectively defendants).? (Young v. Velocity Trade LLC et al. (Aug. 12, 2016, G052138) [nonpub. opn.] (Velocity I).)? Prior to issuance of the remittitur, plaintiff Kurt Young filed a motion in the trial court seeking to stay the proceedings.? Defendants eventually applied ex parte to take the motion off calendar and to enter an order dismissing the case, and that request was granted in its entirety.? Young now asserts that defendants? actions constitute a general appearance conferring personal jurisdiction on the trial court over defendants.? We conclude that Young?s position is entirely incorrect.? Accordingly, we affirm the order.

I

FACTS

The underlying facts of this case are set forth in our prior opinion, and we need not restate them at length here.? (See Velocity I, supra, G052138.) ?The relevant contract set forth that both choice of law and choice of forum were in Florida. ?(Ibid.)? The trial court previously quashed service on defendants, concluding it lacked personal jurisdiction over them.? On appeal, we affirmed by concluding both defendants lacked the required minimum contacts with California under either a general or specific jurisdiction analysis.? (Ibid.)? Our opinion was filed on August 12, 2016.

Prior to this court?s issuance of the remittitur, on September 23, Young filed a motion to stay the proceedings on grounds of forum non conveniens.? The motion argued that while the trial court had granted the motion to quash service for lack of personal jurisdiction, the case had not been dismissed at that time.? Young contended that ?Defendants have never offered an alternative forum outside of California, and no court has affirmatively stated where this matter should be brought, Plaintiff wishes to pursue the case in a Florida court as provided in the client agreement . . . . ?As such, this case should be stayed pending resolution of the Complaint by a Florida court.?? (Fn. omitted.)

The remittitur issued on October 14, while the motion was pending.? On October 19, defense counsel sent a letter to Young?s attorney, asking that the motion to stay be withdrawn, both because it was filed before the trial court had jurisdiction over the proceedings, and because both the trial court and this court had determined there was no personal jurisdiction over defendants.? Accordingly, there was no legal basis to keep the California case ongoing, stayed or not, while Young pursued his stated intent to sue in Florida.? Defendants, counsel stated, had not yet filed opposition ?for fear that the act of opposing the motion may be deemed as the making of a general appearance,? but if the motion was not withdrawn, counsel intended to appear ex parte under Code of Civil Procedure section 581, subdivision (h).[1]? Counsel again requested the motion be taken off calendar.

The motion was not taken off calendar, and on October 26, defendants filed an ex parte application under section 581, subdivision (h), seeking dismissal of the action and to have Young?s motion for a stay taken off calendar.? The application itself stated defendants were making a special appearance, which was supported by argument in the points and authorities. ?Counsel?s declaration also made it clear that defendants did not intend to waive the issue of personal jurisdiction or to make a general appearance.

Young?s two page, handwritten opposition argued that filing the ex parte motion constituted a general appearance, and that filing the motion prior to issuance of the remittitur did not violate this court?s jurisdiction because it was set to be heard after the remittitur issued.? The court granted the relief sought by defendants, dismissing them from the action and taking the motion to stay off calendar.

A few days after the case was dismissed, Young filed substantially the same case against defendants in Florida.[2]

Young now appeals the trial court?s ruling dismissing the case.

II

DISCUSSION

Standard of Review

Both parties agree this appeal presents a question of law to be reviewed de novo.? (See Roberts v. United Healthcare Services, Inc. (2016) 2 Cal.App.5th 132, 149.)

Young?s Brief

Young?s brief (he filed only an opening brief) cites five different unpublished decisions in support of his arguments.? This is wholly improper.? (Cal. Rules of Court, rule 8.1115(a).)? On our own motion, reference to the unpublished decisions is stricken.? Because the failure to support argument by legal authority results in the waiver of that point, any argument in Young?s brief supported only by unpublished authority is waived.? (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)

General or Special Appearance

?Section 410.50, subdivision (a) provides in part, ?A general appearance by a party is equivalent to personal service of summons on such party.? ?[Citations.] . . . ??A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service.? ?[Citation.]? ?[Citations.]? ?(Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52.) ??A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority of the court to proceed. ?It does not require any formal or technical act.? ?(Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1756.)

Young argues at length that by bringing the ex parte motion and arguing the points therein, defendants threw out their previous victories in this court and the trial court and generally appeared.? Young is wrong.

We need not discuss this at length.? There is a statute that directly addresses a situation like this one:? ?In 2002, the Legislature added subdivision (e) to section 418.10. ?[Citation.] ?Under subdivision (e), a defendant may move to quash and

?simultaneously answer, demur, or move to strike the complaint or cross-complaint? and ?no act? by a party who first makes a motion to quash, ?including filing an answer, demurrer, or motion to strike,? constitutes an appearance ?unless the court denies the motion.? ?(? 418.10, subd. (e)(1).) ?If the court denies the motion, the defendant is deemed to have generally appeared on ?entry of the order denying the motion.? ?(Ibid.) ?If the party whose motion to quash is denied files a timely petition for writ of mandate, ?the defendant or cross-defendant is not deemed to have generally appeared until the proceedings on the writ petition have finally concluded.? ?(? 418.10, subd. (e)(2).)?? (State Farm General Ins. Co. v. JT?s Frames, Inc. (2010) 181 Cal.App.4th 429, 440.)

This section is the beginning and the end of our inquiry.? Section 418.10, subdivision (e), was designed specifically to avoid the ???traps for the unwary,??? that could inadvertently result in a general appearance.? (State Farm General Ins. Co. v. JT?s Frames, Inc., supra, 181 Cal.App.4th at p. 440.)? Indeed, Young?s attempt to spring such a trap here is apparent.? It is obvious that defendants were being extremely cautious to avoid a general appearance; indeed, they were only attempting to enforce the court?s previous orders while continuing to refuse to recognize the court?s jurisdiction.? They only brought their ex parte application because they were forced to do so by Young?s refusal to withdraw an untimely (and legally improper) motion.? Fortunately, section 418.10, subdivision (e), which Young never mentions in his brief, has put an end to the shenanigans of inadvertent general appearances, and courts interpreting it have agreed that it should be interpreted to achieve that end.? (See Roy v. Superior Court (2005) 127 Cal.App.4th 345; Air Machine SRL v. Superior Court (2010) 186 Cal.App.4th 414 [both holding ?act? in ??418.10, subd. (e), should be construed broadly].)

We conclude, accordingly, that defendants? application did not constitute a general appearance.? We therefore need not address defendants? remaining arguments as to why the order should be affirmed.

 

III

DISPOSITION

The court?s order is affirmed.? Defendants are entitled to their costs on appeal.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

[1] Subsequent statutory references are to the Code of Civil Procedure unless otherwise noted.

[2] Defendants? unopposed request for judicial notice of the complaint in the Florida matter is granted.? (Evid. Code, ?? 459, 452, subd. (d).)