Opinion
G054827
11-14-2018
In re Marriage of CHRISTINE GRABIEL and STEVEN GRABIEL. CHRISTINE GRABIEL, Appellant, v. STEVEN GRABIEL, Respondent.
Moore, Schulman & Moore, Nicholas R. Grey, Jeremy Boyer and Nicole M. Martinez for Appellant. Law office of Gregory Paul Benton and Gregory Paul Benton for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16D007958) OPINION Appeal from an order of the Superior Court of Orange County, Daphne Grace Sykes, Judge. Reversed. Moore, Schulman & Moore, Nicholas R. Grey, Jeremy Boyer and Nicole M. Martinez for Appellant. Law office of Gregory Paul Benton and Gregory Paul Benton for Respondent.
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Christine Grabiel appeals from an order quashing service of her petition for dissolution of marriage on her husband, Steven Grabiel. She contends the court erred because Steven made no showing that the court lacked personal jurisdiction over him, which is the sole basis for a motion to quash service of process. Rather, Steven's motion was based on the existence of a forum selection clause in the parties' prenuptial agreement—a clause which might justify an order dismissing or staying the action on the basis of forum non conveniens, but does not support an order quashing service.
As the parties share the same last name, we refer to them by their first names for sake of clarity. No disrespect is intended.
Christine is correct, and we consequently reverse the order.
FACTS
Before their marriage in 2000, Christine and Steven entered into a prenuptial agreement that sets out the "obligations of each in the property of the other after marriage." The agreement provides, among other things, that "Although the parties recognize that both or either of them may reside or be domiciled in other states from time to time, the parties represent and agree that this Agreement will be construed and enforced in accordance with the laws of New Mexico in effect at the date of this Agreement and select those courts situated in Albuquerque, New Mexico in event litigation of any type might arise as between the parties."
We reject Christine's claim that the prenuptial agreement was not properly in evidence. Steven's motion to quash, which identifies the agreement, briefly describes the circumstances under which it was entered into, and attaches it as an exhibit, was signed under penalty of perjury by both Steven and his attorney. The motion was also separately verified under penalty of perjury by Steven. Although somewhat unorthodox, that was sufficient to authenticate the document and make it admissible as evidence.
In 2006, the parties purchased a second home in southern California, where Christine had resided before their marriage. According to Christine, she thereafter lived exclusively in that California home, while Steven lived primarily in New Mexico but "commuted" back and forth for ten years.
In September 2016, Christine filed a petition for dissolution of the marriage. Steven obtained several extensions to file a response to the petition. On January 12, 2017, the day before the last extension was to expire, he filed a motion to quash service of process.
Citing the prenuptial agreement's provision selecting Albuquerque as the site of any litigation between the parties, Steven contended that service of process must be quashed because "this court does not have personal jurisdiction over him as to this matter based upon the agreement of the parties so referenced."
Christine opposed the motion to quash, arguing that the California courts have personal jurisdiction over Steven based on his contacts within the state, citing Code of Civil Procedure § 410.10.
All further statutory references are to the Code of Civil Procedure.
The trial court granted the motion, explaining that a forum selection clause can be enforced in a marital dissolution action as long as it is in writing, and not executed under duress, fraud or undue influence. The court noted that "[w]hile [Christine] makes the case for personal and subject matter jurisdiction (which is not contested) she fails to account for the whole basis of the motion"—i.e., the forum selection clause. More specifically, the court faulted Christine because "[her] brief cites many cases relative to jurisdiction. But none of the cases cited actually addressed the validity of [a] forum selection clause in a freely negotiated pre-marital agreement."
DISCUSSION
Christine contends the trial court erred in granting the motion to quash because an order quashing service of a summons is a specific remedy for the lack of personal jurisdiction over the moving defendant, and is unrelated to whether the forum is alleged to be an inconvenient one. She is correct. Section 418.10, subd. (a)(1), provides that a motion to quash service of summons may be brought "on the ground of lack of jurisdiction of the court over him or her." It is not a remedy for other perceived deficiencies.
Section 418.10 also authorizes a party to bring a distinct motion "[t]o stay or dismiss the action on the ground of inconvenient forum (§ 418.10, subd. (a)(2); Berg v. MTC Electronic Technologies Co. (1998) 61 Cal.App.4th 349, 358 ["In California, the procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens pursuant to Code of Civil Procedure sections 410.30 and 418.10"].) Such a motion would not be based on a perceived lack of jurisdiction.
To the contrary, a motion based on forum non conveniens does not challenge the court's jurisdiction, but is instead a request that the court decline to exercise jurisdiction, in favor of a different forum. "Forum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere." (Stangvik v. Shiley, Inc. (1991) 54 Cal.3d 744, 751.)
"A mandatory forum selection clause . . . is generally given effect unless enforcement would be unreasonable or unfair. [Citations.] '"'Mere inconvenience or additional expense is not the test of unreasonableness . . .'" of a mandatory forum selection clause. [Citation.]' . . . [¶] Nonetheless, 'California courts will refuse to defer to the selected forum if to do so would substantially diminish the rights of California residents in a way that violates our state's public policy.'" (Verdugo v. Alliantgroup. L.P. (2015) 237 Cal.App.4th 141, 147, fn. omitted.)
In arguing the court's grant of his motion to quash was proper, Steven restates the arguments he made in the trial court. He claims that the forum selection clause in the parties' prenuptial agreement "meant that California did not have jurisdiction over this dissolution and over him as a person" and that "It would have been impossible for [him] to maintain his special appearance status by also asking for a motion to stay."
Neither argument is well taken. First, California jurisdiction cannot be dispensed with by private agreement. (Miller-Leigh LLC v. Henson (2007) 152 Cal.App.4th 1143, 1149 ["'parties may not deprive courts of their jurisdiction over causes by private agreement . . .'"]; Szynalski v. Superior Court (2009) 172 Cal.App.4th 1, 11 ["[o]ne cannot alter by reservation the personal jurisdiction conferred by minimum contacts or consent."].) Thus, our courts either have personal jurisdiction over Steven and the subject matter of this marital dissolution, or they do not, based on the usual factors. This issue has nothing to do with the parties' privately negotiated forum selection clause. "The issues relating to a forum selection clause are distinct from the questions of subject matter jurisdiction. The existence of a forum selection clause does not mean that another forum lacks subject matter jurisdiction." (Miller-Leigh, supra, 152 Cal.App.4th at p. 1144.)
Second, if Steven did have a basis for claiming California lacked personal jurisdiction over him, he could have preserved that assertion by making a special appearance to assert forum non conveniens. Section 418.10 expressly allows a party, on or before his or her last day to plead, to specially appear and file either a motion to quash service of summons on the ground of lack of jurisdiction, a motion to stay or dismiss the action on the ground of inconvenient forum, or a motion to dismiss based on a delay in prosecution. (§ 418.10, subd. (a)(1-3).)
Because section 418.10, subdivision (a), expressly allows these motions to be made on or before the defendant's last day to plead, and Steven filed his motion to quash just before expiration of the last extension granted by Christine, we reject her contention the motion was untimely. --------
When any of those motions is made under section 418.10, it extends the party's time to plead until after the motion is resolved. If the motion is denied, the statute allows the moving party a brief window to petition the court of appeal for a writ of mandate before pleading. (§ 418.10, subd. (c).) Section 418.10 prohibits the entry of a default against any defendant who has made a motion in accordance with its provisions, prior to expiration of his time to plead. (§ 418.10, subd. (d).)
Steven acknowledges he filed the wrong motion, but argues the trial court's order granting his motion should be affirmed on equitable grounds. He claims that in Gould, Inc. v. Health Sciences, Inc. (1976) 54 Cal.App.3d 687, 692 (Gould), "the court found that getting the case before the correct forum was the greater concern rather than finding whether the party filed the wrong motion." Steven misreads Gould.
The defendant in Gould did not file the "wrong motion." Instead, it filed both a motion to quash and a motion to dismiss on the ground of forum non conveniens. The problem was the trial court's order granting the motion was "not a model of clarity" (Gould, supra, 54 Cal.App.3d at p. 691) because it stated it was quashing service while citing the statutes applicable to forum non conveniens motions.
The Gould court concluded that even though an order quashing service would be technically improper, since the evidence established the existence of personal jurisdiction over the defendant, the order could still be affirmed on the basis of forum non conveniens: "jurisdiction may be declined for reasons peculiar to the particular case, and that it is immaterial whether the relief granted to defendant be that of quashing service of summons, staying or dismissing the action. We hold that any of these forms of relief is appropriate if the facts justify application of the doctrine of forum non conveniens." (Gould, supra, 54 Cal.App.3d. at p. 692.) Thus, "[t]he relevant inquiry on this appeal is whether the trial court correctly determined that the California forum was an inappropriate one under the circumstances presented here." (Ibid.)
This case is distinguishable, however. In this case, Steven did not file both the wrong motion and the right one. He filed only a motion to quash, and thus Christine's opposition properly focused on whether the court had personal jurisdiction over Steven, and essentially ignored the irrelevant forum selection clause. Significantly, the trial court noticed that omission, and chided her for it. But Christine cannot be faulted for opposing only the motion Steven actually filed, while ignoring the motion he did not file.
In ruling as we do, we express no opinion on the viability of any inconvenient forum motion that may be litigated in the future.
DISPOSITION
The order is reversed, and Christine shall recover her costs on appeal.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.