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Special appearance in California

A special appearance in California is the topic of this blog post.   The term special appearance refers to an appearance in which a defendant or cross-defendant does not admit that they are subject to the jurisdiction of the court and therefore are filing a special appearance as opposed to a general appearance.

The statutory authority for a special appearance is found in California Code of Civil Procedure section 418.10.

Code of Civil Procedure section 418.10(a) states that, “(a) A defendant, 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, may serve and file a notice of motion for one or more of the following purposes:

(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.

(2) To stay or dismiss the action on the ground of inconvenient forum.

(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.”

Filing and serving a motion to quash, motion to dismiss based on inconvenient forum and a motion to dismiss for failure to timely serve the summons and complaint or prosecute the action are all considered a special appearance providing that they are timely served and filed.

Certain other actions are also considered a special appearance as Code of Civil Procedure section 418.10(d) states that, “No default may be entered against the defendant before expiration of his or her time to plead, and no motion under this section, or under Section 473 or 473.5 when joined with a motion under this section, or application to the court or stipulation of the parties for an extension of the time to plead, shall be deemed a general appearance by the defendant.”

Appearing at an ex-parte hearing or such as an ex-parte hearing regarding a provisional remedy such as attachment is sought is NOT considered a general appearance.

Code of Civil Procedure section 418.11 states that, “An appearance at a hearing at which ex parte relief is sought, or an appearance at a hearing for which an ex parte application for a provisional remedy is made, is not a general appearance and does not constitute a waiver of the right to make a motion under Section 418.10.”

Any discovery that relates only to the jurisdictional issue is not considered a general appearance in the action.

A motion to quash under section 418.10 on the grounds of lack of personal jurisdction must be supported by evidence on the issue of the defendant’s contacts with the state.  The parties are thus permitted to conduct discovery on the issue prior to the hearing on the motion.  The defendant’s conduct of discovery on the jurisdictional issue, rather than the merits of the case, is not considered a general appearance in the action. See Factor Health Management v. Superior Court, (2005) 132 Cal.App.4th 246, 250. (Citations and quotations omitted.)

A California Court of Appeal has held that discovery that relates to the provisional remedy is not considered a general appearance.

“We see no reason why the exception to the general rule concerning discovery should not extend to discovery propounded in connection with the opposition to an ex parte application for a provisional remedy. If a defendant is permitted to make a special appearance to oppose the ex parte application, and discovery is required to obtain the evidence necessary to oppose the ex parte application, the defendant should be permitted to conduct such discovery without being considered to have made a general appearance in the action. To hold otherwise would render section 418.11 meaningless in cases where discovery was required to oppose an ex parte application for a provisional remedy.” Factor Health Management v. Superior Court, supra Cal.App.4th at 250.

However if a defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one.  Factor Health Management v. Superior Court, supra Cal.App.4th at 250.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

Attorneys or parties in California who would like to view over 300 sample legal documents for sale by the author of this blog post can visit the following link: http://www.scribd.com/LegalDocsPro

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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