Sekel
v.
Borsuk

This case is not covered by Casetext's citator
COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWOSep 7, 2018
E068274 (Cal. Ct. App. Sep. 7, 2018)

E068274

09-07-2018

JEFF SEKEL, Plaintiff and Appellant, v. LYNNE BORSUK et al. Defendants and Respondents.

Jeff Sekel, in pro. per., for Plaintiff and Appellant. Tyson & Mendes, Robert F. Tyson, Jr., Kristi Blackwell, and Timothy P. Irving for Defendants and Respondents.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. PSC1605433) OPINION APPEAL from the Superior Court of Riverside County. David M. Chapman, Judge. Affirmed. Jeff Sekel, in pro. per., for Plaintiff and Appellant. Tyson & Mendes, Robert F. Tyson, Jr., Kristi Blackwell, and Timothy P. Irving for Defendants and Respondents.

I.

INTRODUCTION

Plaintiff and appellant, Jeff Sekel, appeals a judgment of dismissal after the trial court granted a motion to quash service of summons brought by nonresident defendants and respondents Lynne Y. Borsuk (Borsuk) and her law firm, Lynne Y. Borsuk, P.C. (collectively defendants). Sekel contends the trial court erred in granting defendants' motion to quash on the ground it lacked personal jurisdiction over defendants. Sekel argues defendants consented to jurisdiction in California by making a general appearance in the action. Sekel also contends the trial court erred in granting defendants' motion to quash, because the motion was untimely. Sekel alternatively argues defendants had minimum contacts with California sufficient to support personal jurisdiction over defendants.

We conclude the trial court correctly determined that it did not have personal jurisdiction over defendants and therefore properly dismissed Sekel's action. We therefore affirm the judgment of dismissal.

II.

FACTS AND PROCEDURAL BACKGROUND

On October 26, 2016, Sekel, in propria persona, filed an unverified complaint in the Riverside County Superior Court, alleging attorney malpractice against defendants. Attached to the complaint is a copy of an attorney retainer agreement, dated April 19, 2007, signed by Dr. Scott Pretorius. The agreement states that he is retaining defendants to provide legal services in connection with an aggravated stalking charge against Sekel, in Georgia. Also attached to Sekel's complaint is a letter dated September 12, 2007, from Borsuk to Sekel, notifying Sekel that Borsuk was withdrawing as his attorney and would no longer represent Sekel in the pending criminal charges against him. A copy of the notice of withdrawal of counsel was also provided to Dr. Pretorius.

In November 2016, Sekel filed a proof of personal service of the summons and complaint. Sekel personally served defendants on November 8, 2016, at Borsuk's law office in Georgia. On December 8, 2016, defendants filed a motion to quash service of summons (first motion to quash). Defendants brought their motion on the ground the court did not have personal jurisdiction over defendants. Defendants served the motion on Sekel by mail on December 8, 2016. The mailing address was a post office box address in Palm Springs, California, which was the address Sekel used on his summons and complaint, and on all subsequent documents in this action. In Borsuk's supporting declaration, Borsuk stated the following facts. She was the owner of the law firm, Lynne Y. Borsuk, P.C., and was an attorney licensed to practice law in Georgia and Florida. Borsuk had never practiced law in California. Borsuk resided in Georgia. The principal place of her law firm was in Georgia, including during all times referenced in Sekel's complaint. In 2007, Borsuk represented Sekel in connection with the restraining orders against him. The restraining orders were issued in Georgia and arose from alleged conduct in Georgia. The retainer agreement for Borsuk's representation of Sekel was executed in Georgia, and Borsuk's representation of Sekel occurred in Georgia, under Georgia law.

On January 4, 2017, the trial court heard defendants' first motion to quash. Sekel did not appear at the hearing and did not file opposition. Defendants were represented by counsel. The court denied defendants' first motion to quash without prejudice to refiling the motion, on the ground "[t]he moving papers were timely filed but untimely served." The motion was served by mail on December 8, 2016. Therefore, the motion was served one day late for the January 4, 2017, hearing. The trial court ordered defendants to give notice of the ruling to Sekel, and include in the notice that Sekel was ordered to provide counsel and the court with a physical address within 15 days. On January 10, 2017, defendants served Sekel with notice as ordered by the court.

On January 12, 2017, defendants refiled their motion to quash (second motion to quash), along with the same supporting declaration by Borsuk. Defendants' attorney, Kathryn Besch, also filed a supporting declaration explaining that the trial court denied defendants' first motion to quash without prejudice to refiling the motion because notice of the motion was one day less than required for the January 4, 2017, hearing.

Defendants simultaneously filed a motion for relief from the court's January 4, 2017, ruling under Code of Civil Procedure section 473. Defendants requested relief from the ruling on the ground the first motion to quash was denied based on insufficient notice, which was the result of mistake, inadvertence, or excusable neglect. Defendants explained that they had been unable to personally serve Sekel because he was using a post office box in the pending litigation and had not provided a physical address. Defendants therefore requested the court to allow defendants to refile their motion to quash and consider the motion on the merits.

Unless otherwise noted, all statutory references are to the Code of Civil Procedure. --------

Besch acknowledged in her supporting declaration that service of the first motion to quash was inadvertently one day short of the requisite notice period for the first motion to quash (16 days plus five days for mailing notice). Defendants were therefore refiling their motion to quash, along with a motion for relief under sections 473 and 418.10, in compliance with statutory notice requirements. Both the second motion to quash and motion for relief were served on Sekel by mail on January 11, 2017, at his post office box address. Besch noted in her declaration that Sekel had not complied with the order to provide a physical address. Sekel did not file opposition to the second motion to quash.

During the hearing on the second motion to quash and motion for relief on February 9, 2017, the court granted defendants' unopposed motion for relief from the January 4, 2017, ruling denying defendants' first motion to quash. On its own motion, the court continued the second motion to quash. Sekel did not appear at the hearing. Defendants served Sekel with notice of the ruling on the motion for relief and continuance of the second motion to quash. The notice was sent by certified mail to Sekel's post office box address.

On March 9, 2017, the trial court heard defendants' second motion to quash. Neither party appeared at the hearing. The court granted the unopposed motion and dismissed Sekel's complaint. Defendants served Sekel by mail with notice of the ruling. Sekel filed a timely notice of appeal of the March 9, 2017, judgment of dismissal. Sekel used the same post office box address defendants had used to provide Sekel with notice of the various court proceedings and rulings.

III.

FORFEITURE OF OBJECTIONS TO JURISDICTION RULING

Sekel forfeited his objections to the trial court's ruling granting defendants' motion for relief under section 473 and second motion to quash because he did not file opposition to the motions or raise any objections in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)

Generally, an appellant forfeits claims of error through inaction that prevents the trial court from avoiding or curing the error. (Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1117.) This general waiver or forfeiture rule is "grounded on principles of waiver and estoppel, and is a matter of judicial economy and fairness to opposing parties. [Citations.]" (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 629.) This court will not reverse erroneous rulings that could have been, but were not, challenged below. (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546.) This is because any other rule would permit a party to play fast and loose with the administration of justice by deliberately not objecting, thereby permitting the proceedings to be decided, and then acquiescing to the outcome, if favorable, and avoiding it if unfavorable. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)

Here, Sekel failed in the trial court to make any hearing appearances or file opposition in response to defendants' motions to quash and motion for relief. Consequently, he forfeited his objections raised for the first time on appeal. (In re Aaron B., supra, 46 Cal.App.4th at p. 846.) We nevertheless will address Sekel's objections on the merits.

IV.

DEFENDANTS DID NOT MAKE A GENERAL APPEARANCE

Sekel contends defendants consented to personal jurisdiction by making a general appearance in this action. We disagree.

"A defendant submits to the court's jurisdiction by making a general appearance in an action and thereby waives the defense of lack of personal jurisdiction. [Citation.] '"A general appearance occurs when the defendant takes part in the action or in some manner recognizes the authority of the court to proceed." [Citation.] Such participation operates as consent to the court's exercise of jurisdiction in the proceeding. . . . By generally appearing, a defendant relinquishes all objections based on lack of personal jurisdiction or defective process or service of process. [Citations.]' [Citation.]" (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 210 (ViaView).)

Citing section 418.10, subdivisions (c) and (e), Sekel argues that defendants' filing of the motion for relief and second motion to quash should be deemed a general appearance because the trial court denied defendants' first motion to quash and defendants did not file a writ petition challenging the ruling. Under section 418.10, subdivision (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."

Subdivision (c) of section 418.10 further provides that, if a motion to quash is denied, the defendant may file a petition for a writ of mandate to require the trial court to enter its order quashing the service of summons or staying or dismissing the action. In addition, subdivision (e)(1) provides in relevant part that, if the court denies the motion to quash, the defendant is not deemed to have generally appeared until entry of the order denying the motion and, if the motion to quash is denied and the defendant petitions for a writ of mandate pursuant to subdivision (c), the defendant is not deemed to have generally appeared until the proceedings on the writ petition have finally concluded.

Although the trial court denied defendants' first motion to quash and defendants did not seek writ relief under section 418.10, subdivision (c), defendants did not generally appear after denial of their first motion to quash because their motion was denied without prejudice to refiling and defendants expeditiously refiled their motion, along with a motion for relief under section 473. Under section 418.10, subdivision (d), "no motion under this section, or under Section 473 or 473.5 when joined with a motion under this section, . . . shall be deemed a general appearance by the defendant." Therefore, defendants did not generally appear when they filed their second motion to quash and motion for relief.

V.

INSUFFICIENT CONTACTS WITH FORUM STATE

Sekel alternatively argues that the trial court erred in finding that the court did not have personal jurisdiction over defendants because Sekel did not establish that defendants had the requisite minimum contacts with California, the forum state. We disagree.

A. Burden of Proof

A plaintiff has the burden of proving, by a preponderance of the evidence, the factual bases justifying jurisdiction over a defendant challenging personal jurisdiction by a motion to quash. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449 (Vons); ViaView, supra, 1 Cal.App.5th at pp. 209-210.) The plaintiff must submit "affidavits and other competent evidence to carry this burden and cannot simply rely on allegations in an unverified complaint." (ViaView, supra, at p. 210.) If the plaintiff meets this burden, the burden of proof shifts to the defendant to demonstrate that the exercise of jurisdiction would be unreasonable. (Vons, supra, at p. 449; ViaView, supra, at p. 210.)

When the evidence of jurisdictional facts is undisputed, whether the defendant is subject to personal jurisdiction is a legal question subject to de novo review. (Vons, supra, 14 Cal.4th at p. 449; ViaView, supra, 1 Cal.App.5th at p. 210.) Here the relevant factual evidence in the record on appeal regarding jurisdiction is not in dispute, because Sekel did not oppose in the trial court defendants' motion to quash. We therefore decide the jurisdiction issue de novo. (Vons, supra, at p. 449; ViaView, supra, at p. 210.)

B. Specific Jurisdiction

Under California statutory law, California courts may exercise personal jurisdiction over nonresidents "on any basis not inconsistent with the Constitution of this state or of the United States." (§ 410.10.) "A state court's assertion of personal jurisdiction over a nonresident defendant who has not been served with process within the state comports with the requirements of the due process clause of the federal Constitution if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate '"traditional notions of fair play and substantial justice."'" (Vons, supra, 14 Cal.4th at p. 444, quoting Internat. Shoe Co. v. Washington (1945) 326 U.S. 310, 316; accord, ViaView, supra, 1 Cal.App.5th at p. 209.) "The due process clause is concerned with protecting nonresident defendants from being brought unfairly into [a forum state], on the basis of random contacts." (Vons, supra, at p. 452.)

"Personal jurisdiction may be either general or specific. A nonresident defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are 'substantial . . . continuous and systematic.' [Citations.]" (Vons, supra, 14 Cal.4th at p. 445, italics omitted.) "Specific jurisdiction exists when, although the defendant lacks such pervasive forum contacts that the defendant may be treated as present for all purposes, it is nonetheless proper to subject the defendant to the forum state's jurisdiction in connection with a particular controversy. [Citation.]" (ViaView, supra, 1 Cal.App.5th at p. 209.) The inquiry here is whether the forum state of California may assert specific jurisdiction over the nonresident defendants.

A nonresident defendant may be subject to the court's specific jurisdiction if: "(1) the defendant has purposefully availed itself of forum benefits with respect to the matter in controversy; (2) the controversy is related to or arises out of the defendant's contacts with the forum; and (3) the exercise of jurisdiction would be reasonable and comports with fair play and substantial justice. [Citations.]" (ViaView, supra, 1 Cal.App.5th at p. 216.)

Since defendants challenged personal jurisdiction by a motion to quash, Sekel had the burden of proving, by a preponderance of the evidence, the factual bases justifying the exercise of jurisdiction. (Vons, supra, 14 Cal.4th at p. 449; ViaView, supra, 1 Cal.App.5th at p. 216.) Sekel thus was required to present facts demonstrating that defendants' conduct related to the pleaded causes such that it constitutes constitutionally cognizable "minimum contacts." (ViaView, supra, at pp. 216-217.) To carry this burden, Sekel was required to come forward with affidavits, declarations, and other competent evidence. (Id. at p. 217.)

Sekel did not meet his burden of proof. On appeal, Sekel relies on the allegations in his unverified complaint to establish minimum contacts. But allegations in an unverified complaint do not constitute admissible competent evidence. (Thomson v. Anderson (2003) 113 Cal.App.4th 258, 266 ["An unverified complaint has no evidentiary value in meeting the plaintiff's burden of proving minimum contacts."].) Furthermore, Sekel is unable to rely on any other evidence because he did not oppose in the trial court defendants' motions to quash or motion for relief.

We therefore conclude that Sekel has failed to demonstrate with competent evidence that defendants had sufficient minimum contacts with California such that the exercise of specific personal jurisdiction over them would comport with "'"traditional notions of fair play and substantial justice."'" (Vons, supra, 14 Cal.4th at p. 444; accord ViaView, supra, 1 Cal.App.5th at p. 219.)

VI.

DISPOSITION

The judgment is affirmed. Defendants are awarded their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON


J. We concur: McKINSTER


Acting P. J. SLOUGH


J.