IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)
August 2, 2011
KIMBERLY R. OLSON, PLAINTIFF AND APPELLANT,
KENT PEDERSON, DEFENDANT AND RESPONDENT.
(Super. Ct. No. SCSCCVCV090450)
The opinion of the court was delivered by: Murray ,j.
Olson v. Pederson
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Kimberly R. Olson brings this pro se appeal from an order granting the motion of defendant Kent Pederson to quash service of summons for defective service. Olson contends: (1) the trial court misstated her burden in opposing Pederson's motion to quash; (2) the motion to quash should have been denied because Pederson received actual notice of the complaint; and (3) the trial court erred in ruling that Pederson's motion to quash was a special appearance. We find none of these contentions to have merit and affirm the trial court's order.
Olson's complaint is not in the record on appeal. It appears, however, that she initially sued Northern Credit Service and Does 1 through 10 based on allegations they acted improperly in collecting money from her and/or caused false reports about her to be sent to credit agencies. Thereafter, Olson sought to serve Kent Pederson as "John Doe # 2."
Pederson moved to quash service of summons based on defective service and lack of personal jurisdiction. In his declaration in support of the motion, Pederson stated the following. He resides in Klamath Falls, Oregon, and is president of Carter-Jones Collection Service, Inc., an Oregon corporation. Carter-Jones's principal place of business is in Klamath Falls, Oregon, and it is also authorized to do business in California. Carter-Jones does business as defendant Northern Credit Service (NCS) throughout the Northwest and in Northern California. NCS maintains a branch office in Yreka. All accounts assigned for collection to NCS's Yreka office, including Olson's, are handled entirely by personnel in that office. Specifically, Pederson averred he "did not personally perform any work in connection with NCS's efforts to collect money from Olson nor participate in any way in any of the alleged conduct complained of in the complaint." Finally, Pederson was never personally served with the summons and complaint in this case, and no personnel in NCS's Yreka office are authorized to accept service of process for Pederson personally.
In opposition to the motion to quash, Olson argued Pederson subjected himself to general and specific personal jurisdiction in California because he "created, operates and maintains" NCS in Yreka. Service was proper, she argued, because it complied with statutory requirements and provided Pederson with actual notice of the complaint and summons.
Olson also submitted the declaration of Peter Harrell, who averred that she had asked him to identify and serve Doe defendants. In April 2009, Harrell went to NCS's Yreka office. He observed a framed business license issued for NCS that listed Pederson as the "owner," along with a building permit and "other, related documents" in the window that had Pederson's name on them. A Better Business Bureau website identified Pederson as the principal and "customer contact" for NCS's Yreka office and NCS's 1998 business license was issued to Pederson. Harrell visited NCS's Yreka office three times in February and March 2010 and was told on each occasion that Pederson was not in the office. Harrell "left the documents [he] had been asked to serve with the receptionist, told her that they related to a legal action that had been filed against Mr. Pederson, and that she needed to provide them to him."
The hearing on the motion to quash was held May 4, 2010. Pederson's counsel and Olson appeared. The reporter's transcript of that hearing is not in the record.
The trial court granted Pederson's motion to quash on the ground that Olson failed to meet her burden of showing that NCS's Yreka office was Pederson's "usual place of business." The court declined to decide the question of whether Pederson is subject to personal jurisdiction in California because the issue was "not ripe." It ruled that the motion to quash constituted a special appearance by Pederson and his counsel.
I. Standard of Review
In reviewing an order granting a motion to quash service of process, we decide whether the trial court's factual findings were supported by substantial evidence and then independently determine the ultimate question of whether service was sufficient to secure personal jurisdiction over defendants. (See F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 794; In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 111.)
II. Olson Failed to Establish Personal Jurisdiction
"In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish th[e] court's personal jurisdiction over a defendant." (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439 (Dill); Code Civ. Proc., § 410.50.)*fn1 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, by a preponderance of evidence, the facts requisite to an effective service. (School Dist. of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th 1126, 1131; Dill, supra, 24 Cal.App.4th at pp. 1439-1440.)*fn2
In addition to effective service, the other two elements necessary to establish personal jurisdiction "are minimum contacts with the state which provide a basis for the exercise of jurisdiction, and sufficient notice and an opportunity to be heard. [Citation.] All three elements are required. 'Although a proper basis for personal jurisdiction exists and notice is given in a manner which satisfies the constitutional requirements of due process, service of summons is not effective and the court does not acquire jurisdiction of the party unless the statutory requirements for service of summons are met.' [Citation.]" (Dill, supra, 24 Cal.App.4th at pp. 1439-1440, fn. 13.) Thus, without valid service, the court lacks personal jurisdiction over a defendant. (§ 418.10, subd. (a)(1); Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808 (Ruttenberg); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) § 4:413, p. 4-63.)
Olson devotes most of her briefing on appeal to arguing that Pederson has the minimum requisite contacts with California to justify the state's exercise of jurisdiction over him. Her focus is misplaced: the trial court expressly declined to rule on this question, so its order cannot constitute error of the sort Olson asserts.
Rather, the court found only that Olson failed to demonstrate that she had satisfied the statutory requirements for service of the summons. Placing that burden on Olson was not error. "When a defendant challenges the court's personal jurisdiction on the ground of improper service of process 'the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.'" (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 (Summers); See also Dill, supra, 24 Cal.App.4th at p. 1440.)
Section 415.10 et seq. prescribe four basic methods of service of summons and complaint on an individual within California: (1) personal delivery to the defendant (§ 415.10); (2) if personal service cannot be effected after "reasonable diligence," by delivery to someone else at defendant's usual residence or "usual place of business," followed by mailing the summons and complaint in the manner specified (§ 415.20, subd. (b)); (3) service by mail coupled with a notice and acknowledgment of receipt (§ 415.30);*fn3 and (4) service by publication (§ 415.50). (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶¶ 4:180-4:181, p. 4-26.)
The trial court's finding that Olson did not sustain her burden in opposing Pederson's motion is supported by substantial evidence. Olson submitted evidence that her agent, Harrell, left the summons and complaint at the offices of NCS based on documents identifying Pederson as an owner of that company. After being told Pederson "was not in the office,"' Harrell asked the receptionist to give the summons and complaint to Pederson. Harrell nonetheless wrote on the summons that he had accomplished service "by personally delivery" and "@ regular place of business." He indicated on the proof of service that he left the summons at the NCS office in Yreka with "a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served" and thereafter mailed the summons to the same address. These facts do not establish that NCS's Yreka office was Pederson's "usual place of business" as required by the statute. Having an ownership interest in a company does not make a company's location the owner's "usual place of business." Indeed, Olson provided no evidence Pederson was ever present in the office of NCS, or that he maintained an ongoing presence at that office at the time Harrell purported to serve the summons.
Moreover, actual notice, if any, is no substitute for a failure to comply with service of process. (Summers, supra, 140 Cal.App.4th at p. 415; Ruttenberg, supra, 53 Cal.App.4th at p. 808.)
Finally, the trial court did not err in concluding that, by virtue of making a timely motion to quash, Pederson had made only a special appearance. Olson insists on appeal that, because Pederson "raised several issues . . . that were actually denials and defenses to the allegations of the complaint," we must construe his appearance as general, rather than special. But she relies for her argument on case law that interpreted now-outdated statutes. The current version of section 418.10 governs the procedure for making a motion to quash service on the basis of lack of jurisdiction and subdivision (e)(1) of that statute provides that "no act" by a party making a motion under the statute, "including filing an answer, demurrer, or motion to strike," shall be deemed a general appearance. (Ibid.) "[A] defendant may move to quash coupled with any other action without being deemed to have submitted to the court's jurisdiction." (Roy v. Superior Court (2005) 127 Cal.App.4th 337, 345.)
In his respondent's brief, Pederson asks that we award damages, in addition to costs, for Olson's having brought a frivolous appeal. We decline to do so. "The standards for determining whether an appeal is frivolous are contained in In re Marriage of Flaherty (1982) 31 Cal.3d 637. Flaherty provides that an appeal may be found frivolous and sanctions imposed when (1) the appeal was prosecuted for an improper motive--to harass the respondent or delay the effect of an adverse judgment; or (2) the appeal indisputably has no merit, i.e., when any reasonable attorney would agree that the appeal is totally and completely without merit. (Id. at p. 650.) [¶] Flaherty cautions that 'any definition [of a frivolous appeal] must be read so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions.' (Ibid.)" (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 310.)
The order is affirmed. Pederson is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: NICHOLSON , Acting P.J. HULL ,J.