In Personam Jurisdiction

[weishaupt1776]

BURNHAM v. SUPERIOR COURT OF CAL., MARIN COUNTY, 495 U.S. 604 (1990)

[Libertarian]

Weis,
That Burnham case is a good one. You may want to post it in the Appellate Decisions forum.

[Gary Okupant]

Misdemeanor case: Willfull misconduct, trespass, interfering with lawful meeting. Public event, college. Meeting continued after I left. What I said; caused group to riot. No bad language; group just didn't like it. Trespass because the university said your persona non grata, never come back.

I had three appointed defense lawyers(one aclu). Stated. I'm wrong. I have no defense. I mentioned that a police statement was a lied. Lawyer said;
'you deny it, they deny it".
I made to the court a filing; pleading; asking for a jurisdictional ruling. That universities; administrative rules were violations of state and fed. constitutional rights to speach, freedom of movement, upon a public university, at a public event; in which the org. allowed me to speak; then didn't like what I had to say; and had ME arrested. I stated estoppel against plaintiffs.

Def. Lawyer: Everything I said is Civil not criminal. Jurisdiction is civil not criminal(only in felonies). I plead to court; that I withdrew my plea's(no lawyer present), in the pleadings. and then stated the case is violation of my
1st, 5th, 14th, and 9th Ammendments of the Constituion; as well as Ohio Constitution; under the false ability of the legislature and congress; to pass Constitutional rights to administrative organizations.

I then said I appeared as a special person, in that in lieu of jurisdictional rulings, to do so otherwise would bring me into the system and acceptance is a denial of rights; not spoken; and I have spoken.

Now I'm not trying to be difficult; really; I'm trying very very hard to go by the system, being very careful not to accidentally subjecting myself to the system by accident. But at every turn; I'm called conspiratorial, stop reading the internet; and I'm confusing Criminal with Civil law. I asked for access to online legal resources to represent myself; and was told no. That if my next appointed lawyer quit; I would be held in contempt.

Sooooo!, okay; I guess I'm brow beat. What is the point of reading and reading and trying like hell to do the things I read only to be ignored? Told I have no clue of what I'm doing. I only want to appear special; and I'm trying to be Constitutional; but I'm basically being ignored?

I am reading 12 hours aday; taking notes; reading case law; citations and using what I read in concepts etc. Still no avail.

I NOW question; why I have to know Latin; in America; to defend myself; if the Constitution; the Law; is what I'm using. My true feelings to date: I'm not a lawyer; so I'm going to jail; as when a complaint against me is taken; I have to prove positive law; "I" was right; and there is no such thing as me asking for or charging vagueness or overbreadth of law.

Okay! wait; I'll turn around; now beat me; and tell me I have NO concept of what I'm doing? Hire a lawyer!

[idknow]

Originally Posted by Gary Okupant

Misdemeanor case: Willfull misconduct, trespass, interfering with lawful meeting. Public event, college. Meeting continued after I left. What I said; caused group to riot. No bad language; group just didn't like it. Trespass because the university said your persona non grata, never come back.

I had three appointed defense lawyers(one aclu). Stated. I'm wrong. I have no defense. I mentioned that a police statement was a lied. Lawyer said;
'you deny it, they deny it".
I made to the court a filing; pleading; asking for a jurisdictional ruling. That universities; administrative rules were violations of state and fed. constitutional rights to speach, freedom of movement, upon a public university, at a public event; in which the org. allowed me to speak; then didn't like what I had to say; and had ME arrested. I stated estoppel against plaintiffs.

Def. Lawyer: Everything I said is Civil not criminal. Jurisdiction is civil not criminal(only in felonies). I plead to court; that I withdrew my plea's(no lawyer present), in the pleadings. and then stated the case is violation of my
1st, 5th, 14th, and 9th Ammendments of the Constituion; as well as Ohio Constitution; under the false ability of the legislature and congress; to pass Constitutional rights to administrative organizations.

I then said I appeared as a special person, in that in lieu of jurisdictional rulings, to do so otherwise would bring me into the system and acceptance is a denial of rights; not spoken; and I have spoken.

Now I'm not trying to be difficult; really; I'm trying very very hard to go by the system, being very careful not to accidentally subjecting myself to the system by accident. But at every turn; I'm called conspiratorial, stop reading the internet; and I'm confusing Criminal with Civil law. I asked for access to online legal resources to represent myself; and was told no. That if my next appointed lawyer quit; I would be held in contempt.

Sooooo!, okay; I guess I'm brow beat. What is the point of reading and reading and trying like hell to do the things I read only to be ignored? Told I have no clue of what I'm doing. I only want to appear special; and I'm trying to be Constitutional; but I'm basically being ignored?

I am reading 12 hours aday; taking notes; reading case law; citations and using what I read in concepts etc. Still no avail.

I NOW question; why I have to know Latin; in America; to defend myself; if the Constitution; the Law; is what I'm using. My true feelings to date: I'm not a lawyer; so I'm going to jail; as when a complaint against me is taken; I have to prove positive law; "I" was right; and there is no such thing as me asking for or charging vagueness or overbreadth of law.

Okay! wait; I'll turn around; now beat me; and tell me I have NO concept of what I'm doing? Hire a lawyer!

Welcome to the Forum.

Firstly, your post is a little difficult to read because you use periods in a non-standard manner.

Secondly, The thought structure you present is (respectfully) all over the place.

despite that I'm going to try to answer the above:

if the above occured in a lower court, first level "court of general jurisdiction" or Magistrate's
then the next step would be to appeal to the first level general-jurisdiction court for ``trial de novo'' which just means "a new trial"; only the fact that a hearing was held before a magistrate matters; not what was said. hence, `new trial' one court level up from the magistrate.

So, with a new trial, before a hopefully more educated "judge" you get to start all over again
WITHOUT assigned public defender!!! this is a most important point.

Fire them all, they only prevent the truth from leaving your mouth and being heard by the court.

and study here and ask questions and be sure to look at the downloadable-file section.

As for Latin, it is the language they know, but you use english and have the latin-maxim phrase
available.

Finally, no act of legislature or Congress applies to a private citizen acting in his own Birth-right; in other words, not in commerce.

the University opened its "doors" to the general public for a public meeting, to which you were
apparently invited to speak. They cannot then reneg, revoke or cancel an invitation given you.
"persona no grata" is the wrong phrase to use. you are a free man, born on the land,
and not created by an act of legislature.

I'd say (Forum correct me pls) that the uni's complaint is based on their need
to find a scape-goat to sacrifice and you were available.

[weishaupt1776]

Originally Posted by Libertarian

Weis,
That Burnham case is a good one. You may want to post it in the Appellate Decisions forum.

Thanks, guy

[mrg]

This is edited from the link given by Weiss at the top of the thread, and is very good, and I thought should be put here.

It is laid out differently, and edited a little for clarity.

I am going to work on editing it so the cites are linked to the cases.




By Craig Smith:

Jurisdiction refers to the power of the court to decide a case, ie., to render a decision that will be recognized and enforced by authorities and other courts.

Jurisdiction is of two types: Subject matter jurisdiction and jurisdiction over the parties.

A court must have both types of jurisdiction before it has jurisdiction to decide the case.

Jurisdiction Over Persons or Things

In personam, (or personal jurisdiction) is the power of a court to adjudicate the personal legal rights of parties properly brought before it.

Requires that the court not only have jurisdiction over the subject matter of the action, but also that it have jurisdiction over each party to the action.

Due process of law requires appearance or service of process (notice of pendency of the lawsuit) before the defendant can be personally bound by any judgment.

A person is subject to in personam jurisdiction on any of the following theories:

(1) Presence, i.e., being served with a copy of the summons and complaint while physically present in the forum jurisdiction. The physical presence of a defendant in the forum is a sufficient basis for acquiring jurisdiction over him, no matter how brief his stay might be. (Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 24 L.Ed. 565 (1877).

(2) Domicile (residence) alone is a basis for exercising jurisdiction over an absent domiciliary. (Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940).)

I.e., a person may always be sued for all claims, regardless of where they arise, in their state of permanent residence or in the case of a corporation, the state in which it is incorporated.

(3) Consent to personal jurisdiction.

A defendant who has not been personally served in the jurisdiction can nevertheless voluntarily appear and submit himself to jurisdiction.

In such cases defendant is said to have "consented" to jurisdiction.

Can consent be obtained in advance of any lawsuit being filed?

Can consent be implied?

Hess v. Palowski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927) says yes.

A state can legislate that a nonresident motorist using its highways be deemed to have appointed a local official as his agent to receive service of process in any action growing out of the use of the vehicle within the state.

However, the state must provide actual notice to the nonresident defendant.

(4) Minimum Contacts.

Having sufficient dealings or affiliations with the forum jurisdiction which make it reasonable to require the defendant to defend a lawsuit brought in the forum state. (Int'l Shoe)

Hence, a defendant who has never set foot in California may nevertheless be subject to valid personal jurisdiction so as to be compelled to defend a lawsuit in California provided that he has minimum contacts with the forum state such that compelling him to appear and defend in the forum does not offend traditional notions of fair play and substantial justice. (International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).)

I.e., the due process clause does not permit a state to exercise personal jurisdiction over an individual or corporation with which the state has no contacts, ties or relations.

Minimum Contacts - The Four Principles of International Shoe

1) Jurisdiction is permissible when the defendant's activity in the forum is continuous and systematic and the cause of action is related to that activity.

2) Sporadic or casual activity of the defendant in the forum does not justify assertion of jurisdiction on a cause of action unrelated to that forum activity.

3) A court may assert jurisdiction over a defendant whose continuous activities in the forum are unrelated to the cause of action sued upon when the defendant's contacts are sufficiently substantial and of such a nature as to make the state's assertion of jurisdiction reasonable. ("general jurisdiction")

4) Even a defendant whose activity in the forum is sporadic, or consists only of a single act, may be subject to the jurisdiction of the forum's courts when the cause of action arises out of that activity or act. ["specific jurisdiction"] (Friedenthal § 3.10)

Helicopteros Nationales De Colombia, S.A. v. Hall, 466 U.S. 408, (1984) recognizes a distinction between "general" and "specific" jurisdiction.

In order to assert general jurisdiction there must be substantial forum related activity on the part of the defendant.

The threshold for satisfying minimum contacts is higher than in specific jurisdiction cases. (Friedenthal 3.10)

Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed. 1283 (1958) held that the "minimum contacts" a defendant must have with the forum state must be in the form of a purposeful affiliation on the part of the defendant.

I.e., jurisdiction is impermissible where the defendant's contact with the forum is not purposeful. (Friedenthal § 3.10)

"Long -arm" statutes (a reference to the authorization to "reach out" beyond the borders of a state) predicate jurisdiction over nonresidents upon a variety of contacts with the forum, including the transaction of business in the state, the commission of certain acts within the state, e.g., the commission of a tort, ownership of property, entering into a contract. (Friedenthal § 3.12)

California's long-arm statute is short and simple, yet it authorizes the exercise of personal jurisdiction to the broadest extent that due process will permit as set forth in the International Shoe, supra, case.

A court may also take jurisdiction over a thing as opposed to a person.

In rem jurisdiction is the power of a court to deal with a thing (e.g. a parcel of land, an automobile, a ship) and to determine its status in relation to the legal rights of all persons known and unknown.

I.e., in a proceeding in rem the court exercises its power to determine the status of property and the determination of the court is binding with respect to all possible interest holders in that property.

Quasi-in-rem jurisdiction is similar to in rem.

In a proceeding quasi-in-rem, the court renders a judgment for or against a person but recovery is limited to the value of property that is within the jurisdiction and thus subject to the court's authority.

The dispute that gives rise to an action quasi-in-rem may be related to the property or unrelated to it.

In an action quasi-in-rem, the property may be used to satisfy any judgment in the action.

The Int'l. Shoe standards of fairness and substantial justice that govern in personam actions are applicable to in rem actions as well . (Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)

[mrg]

Here is the rest of the link:

Challenging Jurisdiction

By making an "appearance" in response to a lawsuit a defendant is in effect submitting to the jurisdiction of the court and waiving any defects, if any, in personal jurisdiction.

In most states a defendant who wishes to challenge jurisdiction may do so by making a special appearance which is limited to the issue of jurisdiction. (See, e.g., Cal.Code.Civ.Proc. § 418.10)

If he or she raises any other issues or claims he has made a general appearance and waives any defects in jurisdiction.

In federal courts no special appearance is necessary.

Jurisdiction may be challenged in a FRCP 12(b) motion or included as a defense in the answer.

How to Analyze a Personal Jurisdiction Issue

1. Does a statute (long-arm-statute) purport to authorize the exercise of personal jurisdiction?

If answer is "no" then end of analysis.

No personal jurisdiction can be asserted.

If the answer is "yes" then;

2. Does the statute go beyond the constitutional limits of due process set forth in International Shoe?

If "yes" then no personal jurisdiction.

If "no" then personal jurisdiction can be constitutionally asserted.

The Requirement of Notice

The existence of personal jurisdiction depends upon a sufficient connection between the defendant and the forum state to make it fair to require defense of the action in the forum and the giving of reasonable notice to the defendant that an action has been brought.

If the defendant has not received proper notice, the court's power to adjudicate is imperfect.

Notice is usually given by serving the defendant with the "process" (e.g. a copy of the summons and the complaint) of the court.
Service of process is governed by FRCP 4.

The three methods of serving process are

1. personal service,

2. substituted service, and

3. constructive service.

Due process does not require that the defendant be served personally however, notice "reasonably certain" to reach the defendant is required.

I.e., Notice must be reasonably calculated under all the circumstances to apprise the defendant of the pendency of the action. (Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).)

How to analyze the issue of whether the notice given is valid

1. Is there a statute which authorizes this particular method of notice?

2. If so, does the statute meet the minimum constitutional requirements?

Attacking Notice

Defective service of process can be challenged by a FRCP 12(b)(5) motion to dismiss or the objection can be made in the answer. Defective service of process goes to lack of notice.

Due process requires notice and an opportunity to be heard.

Venue

If jurisdiction determines what state a suit can be brought in, venue determines what county or judicial district it may be brought in.

The purpose of venue rules is to limit the plaintiff's choice of forum in order to insure that the locality of the lawsuit has some logical relationship to the litigants or the subject matter of the dispute.

Venue, unlike subject matter jurisdiction, may be waived.

Stated another way, the distinction is this:

jurisdiction is the power to adjudicate,

venue relates to the place where judicial authority may be exercised and is intended for the convenience of the litigants.

(Wright, § 42) 28 U.S.C. § 1391 Summarized: In diversity actions, venue is proper in the district all defendants reside if all the defendants reside in the same state, or in the district in which the claim arose, or, alternatively, where any of the defendants may be found.

In federal question cases there is no plaintiff's venue.

The action may be brought only in the district where all defendants reside or the district in which the claim arose.

Transfer or Change of Venue and Forum Non Conveniens

This doctrine permits a court having jurisdiction over an action to refuse to exercise its jurisdiction when the litigation could be brought more appropriately in another forum. (Friedenthal, § 2.17)

28 U.S.C. § 1406(a) provides that if a civil action is commenced in the wrong district or division, the court shall dismiss, but if it is in the interest of justice, the court may instead transfer the case to any district or division in which it could have been brought.

Transfer is preferable to dismissal since it avoids the necessity of commencing a new lawsuit.

Transfer can be ordered only if the court in which the action was brought has jurisdiction of the subject matter but it is not necessary that it have personal jurisdiction.

28 U.S.C. § 1404(a) states: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

Under the rule of "forum non conveniens" a court can dismiss a suit even though it has both personal and subject matter jurisdiction and the venue is properly laid if there exists another forum so much more convenient for the parties and the courts that plaintiff's privilege of choosing his forum was outweighed.

The enactment of 1404(a) means that it is now only in rare instances where the alternative forum is a state court or the court of a foreign country may the federal court dismiss on grounds of forum non conveniens.

Procedure for Transfer under section 1404(a)

Motion for transfer may be made by any party, including the plaintiff.

Motion may be made at any time though delay in moving is a factor that will be considered in passing on the motion.

Once the motion is granted the transferor court loses all jurisdiction over the case.

If the transfer is on motion of the defendant, the transferee court must apply the law that would have been applied in the transferor court; a change in forum means only a change of courtrooms but not a change of law.

This means that in passing on the motion to transfer the court must consider the effect that retaining the law of the transferor state will have. (E.g., if law is unclear in transferor state that would militate against transfer.) (Wright, § 44)

[KITCHIE]

[quote=mrg]

In personamJurisdiction

A Law Dictionary, 1839
Bouvier, John, 1787-1851.

IN PERSONAM, remedies.
A remedy in personam, is one where the proceedings are against the person, in contradistinction to those which are against specific things, or in rem. (q. v.) 3 Bouv. Inst. n. 2646.

PERSON. This word is applied to men, women and children, who are called natural persons.

In law, man and person are not exactly synonymous terms.

Any human being is a man, whether he be a member of society or not, whatever may be the rank he holds, or whatever may be his age, sex, &c.

A person is a man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes. 1 Bouv. Inst. n. 137.

2. It is also used to denote a corporation which is an artificial person. 1 Bl. Com. 123; 4 Bing. 669; C. 33 Eng. C. L R. 488; Wooddes. Lect. 116; Bac. Us. 57; 1 Mod. 164.

ARTIFICIAL. What is the result of, or relates to, the arts; opposed to natural; thus we say a corporation is an artificial person, in opposition to a natural person.

Artificial accession is the uniting one property to another by art, opposed to a simple natural union. 1 Bouv. Inst. n. 503.

ARTIFICIAL PERSON. In a figurative sense, a body of men or company are sometimes called an artificial person, because the law associates them as one, and gives them various powers possessed by natural persons.

Corporations are such artificial persons. 1 Bouv. Inst. n. 177.

3. But when the word "Persons" is spoken of in legislative acts, natural persons will be intended, unless something appear in the context to show that it applies to artificial persons. 1 Scam. R. 178.

[4.,5., obsolete]

6. Persons are also divided into citizens, (q. v.) and aliens, (q. v.) when viewed with regard to their political rights.

When they are considered in relation to their civil rights, they are living or civilly dead; vide Civil Death; outlaws; and infamous persons.

In Websters International English Dictionary pub 1895 the general definition of PERSON:
1. Mask worn by actors
2. An actor as in a play; an impersonator
3. An outward bodily appearance, She is loving and sweet in her person;

PERSON- a living self-conscious being distinct from an animal or thing.

ARTIFICIAL PERSON or FICTICIOUS PERSON a corporation or a body-politic

NATURAL PERSON distinct from a corporation

BODY POLITIC the collective body of a nation or state as politically organized or as exercising political functions; also a corporation.

Corporation a body politic or corporate formed and authorized by law to act as a single person.

Check out the way they have redefined natural person. However in the gov only has power to rule over corporations and NOT over living self-conscious beings you can see clearly how they trap you.

For example the quote I believe Weis provided in a court case where the judge said, if this were common law we wouldn't even be here. or something to that effect.

Now couple that with the adminastrative procedures act and the the "judges are merely clerks of the agency (that brought the offender into court) to confirm the PROCESS was correctly carried out. I's dotted and T's crossed.

Just my observation.

This is great info

Kitchie

[idknow]

[quote=KITCHIE]

Originally Posted by mrg

In personamJurisdiction

A Law Dictionary, 1839
Bouvier, John, 1787-1851.

IN PERSONAM, remedies.
A remedy in personam, is one where the proceedings are against the person, in contradistinction to those which are against specific things, or in rem. (q. v.) 3 Bouv. Inst. n. 2646.

PERSON. This word is applied to men, women and children, who are called natural persons.

In law, man and person are not exactly synonymous terms.

Any human being is a man, whether he be a member of society or not, whatever may be the rank he holds, or whatever may be his age, sex, &c.

A person is a man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes. 1 Bouv. Inst. n. 137.

2. It is also used to denote a corporation which is an artificial person. 1 Bl. Com. 123; 4 Bing. 669; C. 33 Eng. C. L R. 488; Wooddes. Lect. 116; Bac. Us. 57; 1 Mod. 164.

ARTIFICIAL. What is the result of, or relates to, the arts; opposed to natural; thus we say a corporation is an artificial person, in opposition to a natural person.

Artificial accession is the uniting one property to another by art, opposed to a simple natural union. 1 Bouv. Inst. n. 503.

ARTIFICIAL PERSON. In a figurative sense, a body of men or company are sometimes called an artificial person, because the law associates them as one, and gives them various powers possessed by natural persons.

Corporations are such artificial persons. 1 Bouv. Inst. n. 177.

3. But when the word "Persons" is spoken of in legislative acts, natural persons will be intended, unless something appear in the context to show that it applies to artificial persons. 1 Scam. R. 178.

[4.,5., obsolete]

6. Persons are also divided into citizens, (q. v.) and aliens, (q. v.) when viewed with regard to their political rights.

When they are considered in relation to their civil rights, they are living or civilly dead; vide Civil Death; outlaws; and infamous persons.

In Websters International English Dictionary pub 1895 the general definition of PERSON:
1. Mask worn by actors
2. An actor as in a play; an impersonator
3. An outward bodily appearance, She is loving and sweet in her person;

PERSON- a living self-conscious being distinct from an animal or thing.

ARTIFICIAL PERSON or FICTICIOUS PERSON a corporation or a body-politic

NATURAL PERSON distinct from a corporation

BODY POLITIC the collective body of a nation or state as politically organized or as exercising political functions; also a corporation.

Corporation a body politic or corporate formed and authorized by law to act as a single person.

Check out the way they have redefined natural person. However in the gov only has power to rule over corporations and NOT over living self-conscious beings you can see clearly how they trap you.

For example the quote I believe Weis provided in a court case where the judge said, if this were common law we wouldn't even be here. or something to that effect.

Now couple that with the adminastrative procedures act and the the "judges are merely clerks of the agency (that brought the offender into court) to confirm the PROCESS was correctly carried out. I's dotted and T's crossed.

Just my observation.

This is great info

Kitchie

So, lessee, ``how does a PERSON die?''

well, the PERSON is born upon application for some benefit from govt.

But that "birth" is based on subterfuge, confusion, misinformation and adulteration.

The "birth certificate" is a ``registration and receipt of property'' executed by at least three parties: Mother, Father (his presence is optional), Hospital (as agent for), State.

But the consummation of the receipt of property takes years, upto the age of majority, perhaps a curing (as in salting), because no minor less than the age of reason/knowledge can of their own (undeveloped) Birth-Right can agree to contract!

To die, an entity, natural or artificial, must cease to exhibit the characteristics that evidence the life given to it. So, what are the characteristics of life for an artificial being?

According to what Kitchie quothed above, an artificial person is always dead, it has no real-life, no real-existence, it is a fiction, pretend, made-up and; it completely lacks and has no spirit, no soul and no body.

According to scripture, we are not to be yoked to anything dead.

So the main characteristic of an artificial being is that it is not alive by God's standard.

To apply a line of dialog from a Star Trek character, "it is a dead shell..." and the body we (our spirit) inhabit is the temple of God, the tabernacle. (a dwelling-place)

To me, by this cursory post and Kitchie's post, it seems that a few cites, a few revocations and a declaratory statement to the effect that "I am alive" would suffice; but things are not that simple.

What say the Forum?

[weishaupt1776]

ROY v. SUPERIOR COURT

California Court of Appeal, Fourth District, 2005.

127 Cal.App.4th 337, 25 Cal.Rptr.3d 488.

MCKINSTER, ACTING P.J.

*

This is a routine breach of contract and fraud action brought by Lucky Star, Inc.(as assignee) against an Illinois corporation, Audio Source, Inc., and several of its officers/directors/shareholders, Stanley Roy, Michael Roy and Janice Roy (the Roys) and Janice Quinn. The gravamen of the complaint is Audio Source's failure to pay for goods.

*

Lucky Star filed its action * * * [and] defendants filed a joint answer in which they asserted 24 affirmative defenses, of which the sixth was "The court lacks jurisdiction over these answering defendants because the acts complained of occurred outside of the State of California, these answering defendants are not residents of the Statement [sic ] of California and there was [sic ] no contacts with the State of California to give the court jurisdiction over these answering defendants."

*

Defendants did not, however, immediately act on their assertion of this purported defense. Instead, they proceeded to actively participate in the litigation. They filed a case management statement and attended conferences; they propounded discovery and filed numerous motions to compel when satisfactory responses were not received; they requested various continuances; and they filed a motion for summary judgment.

*

Finally, just prior to the scheduled hearing on the latter motion (which was

eventually vacated), the individual defendants filed a motion to dismiss for lack of

personal jurisdiction.1 After hearing argument and conducting its own research, the trial court denied the motion on the basis that by filing an answer and participating in the litigation, defendants had all submitted to California's jurisdiction.

*

This petition followed on behalf of the Roys and Janice Quinn. They argue that under Code of Civil Procedure section 418.10, subdivision (e), as amended in 2002, they followed proper procedure and there was no submission to jurisdiction or waiver of the jurisdictional defect. For reasons that follow, we conclude that the trial court was right and that the motion was properly denied.

*

DISCUSSION

*

As the trial court recognized, it has long been the rule in California that a party waives any objection to the court's exercise of personal jurisdiction when the party makes a general appearance in the action. An answer, of course, is such an appearance, as is

1 Given our resolution of the issue before us, it is unnecessary to consider the substantive merits of the motion.

*

*

expressly made clear by section 1014: "A defendant appears in an action when the

defendant answers, demurs, [or] files a notice of motion to strike...." * * *

*

It is therefore beyond dispute that defendants would have properly been held to have waived any jurisdictional defect under the law as it was in effect before January 1, 2003. However, defendants rely on amendments made to section 418.10 and effective that date to support their argument that the jurisdictional objection was preserved.

*

Section 418.10 governs the procedure for making a motion to quash service or dismiss or stay an action on the basis of lack of jurisdiction or inconvenient forum. Subdivision (e), added in 2002, provides that, "A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint." It further 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. Plainly, this abolishes the old rule to that extent.

*

Finally, subdivision (e)(3) of section 418.10 states that "[f]ailure to make a

motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issue[ ] of lack of personal jurisdiction...." (Italics added.) It is this latter provision upon which defendants particularly rely. Tacitly applying the doctrine inclusio unius est exclusio alterius (the inclusion of one is the exclusion of another), they argue that although the statute provides for a waiver of objections for a defendant who files either a demurrer or motion to strike without a concurrent motion to quash or dismiss, it implicitly preserves the objection for a defendant who answers, even if he does not simultaneously challenge jurisdiction by motion.

*

Both sides have supplied legislative history materials of which we have taken judicial notice. It is apparent that the intent behind the amendments to section 418.10 was to simplify procedures and reduce the risk of an inadvertent submission to jurisdiction. For example, the Senate Judiciary Committee analysis for the April 2, 2002, hearing on Senate Bill No. 1325 comments that "current California law on special and general appearances 'is a quagmire filled with traps for the unwary.' "4 The report refers to federal practice under Federal Rules of Civil Procedure, rule 12(b), and notes that the proposed bill would "conform California procedure to federal procedure." This understanding–that section 418.10 would follow federal rule 12(b)–is also expressly stated in section 2 of

Statutes 2002, chapter 69 (S.B.1325).

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The question is, to what extent has California practice been conformed to federal? The answer requires a brief analysis of procedure under rule 12(b) and otherwise. The rule requires that, "Every defense ... shall be asserted in the responsive pleading ... except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6)


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4 In addition to the cases noted previously, it had also been held that merely asking the court for the continuance of a hearing constituted a "general appearance" even where the party has filed a motion to quash service.

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failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19."5 Such a motion is to be*made "before pleading if a further pleading is permitted." The rule also clarifies that, "No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion."

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Thus, under rule 12(b), a defendant may raise objections to personal jurisdiction along with any other defenses without being deemed to have waived the jurisdictional objection. A defendant may also choose to proceed by motion before answering, or simply to state lack of personal jurisdiction in his responsive pleading as a defense.