Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 320236
Swager, J.
We have before us the fourth appeal in this action, which still has yet to proceed beyond the point of valid service of process upon respondent. Appellants argue that their cross-complaint for express and implied indemnity against respondent was erroneously dismissed for failure to serve summons and complaint upon him within the three-year period specified in Code of Civil Procedure section 583.210, subdivision (a). We agree with appellants that the three-year period was tolled pursuant to section 583.240, and did not lapse. We also conclude that respondent made a general appearance in the action by pursuing a motion for restitution against appellants, and thereby effectively placed himself within the personal jurisdiction of the court. We therefore reverse the judgment that dismissed appellants’ cross-complaint, and direct respondent to file an answer or other responsive pleading with 20 days of the issuance of the remittitur.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated; all references to rules are to the California Rules of Court.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
We observe that no brief has been received from respondent, in violation of rule 8.200(a)(2), which directs that each “respondent must serve and file a respondent’s brief.” The matter is thus deemed submitted on appellants’ brief. (County of Butte v. Bach (1985) 172 Cal.App.3d 848, 867.) Rule 8.220(a)(2) provides that if a timely respondent’s brief is not filed, “the court may decide the appeal on the record, the opening brief, and any oral argument by the appellant.” “ ‘Accordingly, we accept the factual recitation contained in the [appellants’] opening brief, but apply the rule that [appellants] must affirmatively demonstrate prejudicial error.’ [Citations]” (County of Lake v. Palla (2001) 94 Cal.App.4th 418, 420, fn. omitted; see also In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1.) It is appropriate for us to examine the record and appellants’ brief and reverse only for prejudicial error. (In re Bryce C. (1995) 12 Cal.4th 226, 232–233; Yordamlis v. Zolin (1992) 11 Cal.App.4th 655, 659, fn. 2; Ruttenberg v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1277, 1282.) Some of our recitation of the underlying facts will be taken from our prior opinions in this case (A105407, A110178), which are part of the record in this appeal. (Snyder Trust Enterprises v. WorldPoint (Sept. 30, 2004, A105407) [nonpub. opn.]; Snyder Trust Enterprises v. Fuchs (July 25, 2006, A110178) [nonpub. opn.].)
Appellants owned an unreinforced masonry office building at 706 Sansome Street in San Francisco, that was leased to WorldPoint Interactive, Inc. (hereafter WorldPoint) for an eight-year term scheduled to commence on January 1, 2000. WorldPoint is a Delaware corporation that maintained a place of business in San Francisco. Respondent Massimo Fuchs was the president and chief executive officer of the corporation.
Appellants concurrently entered into a contract with Eicon, Inc. (hereafter Eicon), for seismic upgrade of the building. In light of the ongoing seismic upgrade construction, the lease agreement between the parties specified that the lease term and rental payments would begin when appellants delivered possession of the building to WorldPoint.
WorldPoint did not take possession of the building at the scheduled lease commencement date, but instead entered into a contract dated February 25, 2000, with Eicon for tenant improvements in the building. On April 4, 2001, Eicon filed suit in superior court against appellants, WorldPoint, respondent, and two other defendants for breach of contract, quantum meruit, and to foreclose on its mechanic’s lien. The complaint alleged that WorldPoint defaulted on payments owed under its contract with Eicon for tenant improvements in the sum of $553,610, and a mechanic’s lien for that amount had been filed by Eicon against WorldPoint.
On July 2, 2001, appellants filed a cross-complaint for equitable indemnity and other causes of action against WorldPoint and respondent, both as an agent for WorldPoint and in his individual capacity, along with other named cross-defendants. Appellants thereafter reached a settlement that obligated them to pay Eicon and its subcontractors $250,000 for work performed on tenant improvements as well as attorney fees of $42,509 and costs of $4,297.
On January 9, 2002, appellants requested entry of a default judgment on their cross-complaint against WorldPoint and respondent for $296,806, the total amount of their settlement with Eicon. A default was entered against WorldPoint and respondent in his individual capacity on September 7, 2001; the default judgment was entered against WorldPoint and respondent on January 23, 2002.
In March 2002, WorldPoint was the subject of an involuntary petition for relief under Chapter 7 of the Bankruptcy Code. On October 14, 2003, the trustee in bankruptcy filed a motion to quash service of summons on the cross-complaint and set aside the default judgment against WorldPoint. The trial court denied the motion in an order that WorldPoint appealed by and through the trustee in bankruptcy. In our first opinion (A105407) filed September 30, 2004, we held that service of process on WorldPoint was invalid for lack of compliance with the provisions section 412.30 relating to service on a corporation.
On January 11, 2005, respondent moved to quash service of summons on him and to set aside the default judgment entered against him individually, again for lack of compliance with section 412.30. In an order filed February 25, 2005, the court granted the motion, quashed service of summons of the cross-complaint on respondent, and set aside the default judgment. In our second opinion (A110178), we found that the lack of compliance with section 412.30 was a jurisdictional defect that also rendered invalid the service of summons upon respondent in his individual capacity. We further found that respondent did not yet make a general appearance in the action. We therefore affirmed the trial court’s ruling in an opinion filed on July 25, 2006.
Respondent then filed a motion for restitution of the value of “personal property” that belonged to him and WorldPoint. He claimed that the property was “wrongly executed upon” by appellants after they obtained a void default judgment, and also violated “his first priority lien on WorldPoint personal property.” Respondent requested a “money judgment” of restitution in the total amount of $1,350,591.46, plus prejudgment interest, and reasonable compensation for the “costs of time and money expended” in the amount of $50,000. The third appeal in this case (A116522) followed the denial of respondent’s motion for restitution on October 19, 2006. That appeal was dismissed on October 25, 2007.
On November 6, 2006, respondent moved pursuant to section 583.210 to dismiss the cross-complaint for appellants’ failure to serve the summons on him “within the mandatory three years after they commenced this action against him.” Following a hearing, the trial court granted the motion and ordered dismissal of the action with prejudice. The current and fourth appeal in this case ensued.
DISCUSSION
Appellants advance several reasons in support of their claim that the trial court erred by dismissing the action for failure to serve respondent within three years after commencement of the action: the three-year period was tolled by litigation over the validity of service; service of summons upon respondent was impossible or impracticable; respondent is estopped from seeking dismissal for noncompliance with the three-year limitations period; and, the dismissal “should have been without prejudice.” Appellants also maintain that respondent made a general appearance in the action by moving for restitution, and request that we not only reverse the dismissal of the cross-complaint, but also order him to respond.
I. The Tolling of the Three-Year Dismissal Period.
“Section 583.210, subdivision (a), provides that a summons and complaint ‘shall’ be served upon a defendant within three years after the action is commenced. Section 583.250, in turn, provides that the action ‘shall’ be dismissed if service is not made within the statutorily prescribed time and that the foregoing requirements ‘are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.’ [Citation.]” (Watts v. Crawford (1995) 10 Cal.4th 743, 748; see also Shipley v. Sugita (1996) 50 Cal.App.4th 320, 324; Perez v. Smith (1993) 19 Cal.App.4th 1595, 1597.) “The policy of the dismissal statutes is to promote trial of cases before evidence is lost and memories dim and to protect defendants from being subjected to the annoyance of unmeritorious actions that remain undecided for indefinite periods of time. [Citation.] The specific purpose behind section 583.210 is to assure that defendant receives prompt notice of the action.” (Davis v. Allstate Ins. Co. (1989) 217 Cal.App.3d 1229, 1232; see also Damjanovic v. Ambrose (1992) 3 Cal.App.4th 503, 510.)
Appellants do not dispute the obvious truth that well more than three years passed from the commencement of the action on the cross-complaint on July 2, 2001, to the date the motion for dismissal was filed by respondent on November 6, 2006. Thus, dismissal of the cross-complaint is mandatory unless the delay in service of process within the prescribed time falls within one or more of the enumerated statutory exceptions. (Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1108; Perez v. Smith, supra, 19 Cal.App.4th 1595, 1597.) A plaintiff can escape the “harsh consequence” of mandatory dismissal “only by proving that grounds exist to toll the statutory period. [Citation.] . . . The critical inquiry here, then, is whether any statutory exclusions applied to toll” the three-year period and prevent mandatory dismissal. (Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 498.)
“[S]ection 583.240 delineates a number of circumstances that operate to toll the three-year period in which service must be made. The statute provides in this regard: ‘In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed: [¶] (a) The defendant was not amenable to the process of the court. [¶] (b) The prosecution of the action or proceedings in the action was stayed and the stay affected service. [¶] (c) The validity of service was the subject of litigation by the parties. [¶] (d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff’s control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for the purpose of this subdivision.’ ” (Watts v. Crawford, supra, 10 Cal.4th 743, 748, italics added; see also Shipley v. Sugita, supra, 50 Cal.App.4th 320, 324.) “[I]n computing the three-year limitation, section 583.240 mandates the exclusion of time under the described conditions.” (Highland Stucco & Lime, Inc. v. Superior Court (1990) 222 Cal.App.3d 637, 644.) The burden of establishing facts to bring the case within an exception to the general rule requiring dismissal fell on appellants. (Perez v. Smith, supra, 19 Cal.App.4th 1595, 1597; Quaranta v. Merlini (1987) 192 Cal.App.3d 22, 27.)
A. Litigation of the Validity of Service.
We first confront appellants’ argument that the section 583.210 three-year statutory dismissal period was tolled during litigation over the validity of service, and did not lapse. Appellants claim that motions made by both WorldPoint and respondent Fuchs during the course of the proceedings in the case to set aside the default judgment implicated the “validity of service,” and therefore triggered the tolling provision of section 583.240, subdivision (c).
Looking at the record, the action on the cross-complaint has been rife with litigation over validity of service of process on both respondent and WorldPoint. According to the register of actions, both respondent and WorldPoint were personally served with the summons and cross-complaint on July 19, 2001. When they failed to appear and answer, appellants obtained a default against WorldPoint and respondent on September 7, 2001, and a default judgment against both parties in the amount of $250,000, plus costs and attorney fees, on January 23, 2002. In April of 2002, pursuant to a writ of execution appellants levied upon property owned by WorldPoint and respondent’s personal property that was located at 706 Sansome Street.
Our review is hampered by the incompleteness of the record before us, and the fact that respondent is named in the cross-complaint as an agent of WorldPoint and in his individual capacity. To attempt to clarify the facts we have taken judicial notice of the clerk’s transcripts in two prior appeals: A110178 and A116522. (Evid. Code, §§ 452, subd. (d), 459; Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.)
Respondent admitted in an affidavit filed in support of the motion to set aside the default judgment that a copy of the summons and cross-complaint was delivered to him at his residence in Hawaii on July 19, 2001. We observe that although appellants attempted to effectuate service of process on WorldPoint and Fuchs well within the three-year period, “Only a valid service complies with the requirement of section 583.210 that the summons and complaint be served within three years. [Citation.] Accordingly, while a motion to quash is the procedure usually employed to challenge the validity of service, the same issue is raised by a motion to dismiss under section 583.210. [Citation.] Thus, the motion to dismiss was properly granted if the service on the defendants was invalid.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1433, italics added.)
The trustee in bankruptcy filed a motion on behalf of WorldPoint to quash service of summons on the cross-complaint and set aside the default judgment on July 22, 2002. The record in a prior appeal (A110178) also indicates that respondent prepared a joinder to WorldPoint’s motion for relief from default, although the document was apparently not filed. He also personally filed an affidavit in support of the motion on July 22, 2002. The trial court denied the motion in an order filed on November 21, 2003.
WorldPoint lodged an appeal (A105407) by and through the appointed trustee in bankruptcy on February 3, 2004. In our first opinion filed on September 30, 2004, we found the service of process of the cross-complaint on WorldPoint invalid for lack of compliance with the provisions of section 412.30 that govern service on a corporation. The order “denying WorldPoint’s motion to quash service of summons and set aside the default judgment” was reversed. The remittitur was issued on February 1, 2005.
Upon return of the case to the trial court, respondent Fuchs moved to quash service of summons on him and to set aside the default judgment on January 11, 2005. From that date until the remittitur was issued in the second appeal (A110178) on September 26, 2006, the validity of service of process on Fuchs was litigated.
The trial court declined to toll any of the period related to litigation over service of process on the theory that the ultimate finding of lack of “proper service” divested the court of “jurisdiction” and rendered all the prior proceedings “void.” Apparently the court interpreted the litigation exception of section 583.240, subdivision (c), to be limited in scope to proceedings in which service of process is found valid after litigation by the parties. Stated another way, the trial court imposed two requirements to obtain tolling under section 583.240, subdivision (c): first, the validity of service process was litigated by the parties; and second, the litigation resulted in a finding that service was valid.
The trial court’s interpretation of the litigation exception does not comport with either the language or intent of the statute. The court essentially engrafted an additional element onto the statutory provision: that the service of process is declared valid following the litigation. The language of section 583.240, subdivision (c) provides that the three-year dismissal period is tolled if the “validity of service was the subject of litigation,” without any mention of the ultimate ruling on the matter. (Italics added.) We think the statutory language is clear; the litigation itself activates the tolling provision. “When a statute is not ambiguous on its face, we cannot add to it or alter it to accomplish a purpose that does not appear on the face of the statute. [Citation.] ‘Words may not be inserted in a statutory provision under the guise of interpretation.’ [Citation.]” (Berhanu v. Metzger (1992) 12 Cal.App.4th 445, 448.)
Moreover, in many cases, if service of process is found valid after litigation, the exception will be superfluous since the three-year period will not have passed. It is precisely those cases in which litigation results in a finding of invalid service that the exception is necessary. Otherwise, a party who believes service of process has already been properly effectuated may find that the three-year dismissal period has run if the service is eventually determined to be invalid during the course of litigation. It is the litigation that produces tolling, not the outcome of it.
We conclude that the section 583.240, subdivision (c) exception tolls the three-year dismissal statute for any period during which the parties are engaged in active litigation over the validity of service of process, whether by motion to quash, motion to set aside a default judgment based on a claim of invalid service, or other procedural mechanism that implicates the issue of the validity of service of process. The ultimate finding on the issue is of no consequence to the litigation exception.
If we toll the dismissal period for the dates of litigation of the validity of service of process on both WorldPoint and Fuchs, the three-year time limit has not nearly run. The litigation time in both the trial and appellate courts must be excluded pursuant to section 583.240, subdivision (c), and if so three years did not pass from the date the cross-complaint was filed to the date of the motion for dismissal.
The calculation of tolling is complicated in the present case, however, by the fact that litigation over the validity of service of process involved both WorldPoint and Fuchs. Section 583.240, subdivision (c) specifies that the litigation must be “by the parties.” We interpret that language to mean that tolling only occurs if the litigation over the validity of service of process is part of the same action and between the same parties which dispute the expiration of the three-year dismissal period of section 583.210. Thus, we must determine whether for purposes of section 583.240, subdivision (c), the motion of WorldPoint filed on July 22, 2002, to quash service of summons on the cross-complaint and set aside the default judgment – resolved upon issuance of the remittitur in A105407 on February 1, 2005 – was litigation between “the parties” to the present motion for dismissal by Fuchs alone. If not, the section 583.240, subdivision (c) exception does not operate to toll the dismissal period during litigation of the WorldPoint motion.
We conclude that the same-parties requirement of section 583.240, subdivision (c), is satisfied if, with reference to the doctrine of collateral estoppel, the parties who litigated the validity of service of process are identical to the parties who then litigate the expiration of the dismissal period, or are in privity with those parties. Hence, if a strict identity of parties does not exist, the tolling provision “ ‘applies not only to parties to an action or proceeding, but also to those in privity with the parties.’ [Citation.] Privity ‘ “refers ‘to a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with another as to represent the same legal rights [citations] and, more recently, to a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is “sufficiently close” so as to justify application of the doctrine of collateral estoppel. [Citations.]’ . . .” ’ ” (Mooney v. Caspari (2006) 138 Cal.App.4th 704, 718.)
We proceed with an examination of the nature of the action and the parties. Appellants’ cross-complaint for indemnity was filed against Fuchs, both as agent for the corporation and as an individual. The cross-complaint alleged that WorldPoint and Fuchs had such a “unity of interest and ownership” that respondent was not only an agent of the corporation, but “the independence and separateness of the corporation and individual [had] ceased,” and they were “alter-egos of each other.” The default judgment was entered against both WorldPoint and respondent in his individual capacity.
The first motion to quash service of process and set aside the default was made by WorldPoint alone, however, and it is the motion that constitutes the litigation over the validity of service of process. Nothing in the record shows that respondent actually joined in WorldPoint’s motion, although he did file a supporting affidavit. Our opinion in the first appeal declared that service upon WorldPoint was invalid, reversed the denial of WorldPoint’s motion to quash service of summons, and set aside the default judgment against WorldPoint. We did not confront or resolve the validity of service of summons upon Fuchs personally. Thus, at the conclusion of litigation of WorldPoint’s motion to quash and set aside the default judgment – that is, upon issuance of the remittitur in the first appeal – the default judgment against respondent Fuchs was still extant.
WorldPoint and Fuchs were thus not the same party for purposes of the default judgment and the first motion to set it aside, although they certainly had an essential identity of interests in the litigation of the validity of service of process. Respondent also actively participated in the litigation, in which he was alleged to have a unity of interest and ownership with the closely held corporation. “ For the purpose of affording opportunity for a day in court on issues contested in litigation, however, there is no good reason why a closely held corporation and its owners should be ordinarily regarded as legally distinct. On the contrary, it may be presumed that their interests coincide and that one opportunity to litigate issues that concern them in common should sufficiently protect both. [¶] ‘The problem then becomes one of fair opportunity to litigate the issue in question. When the corporation is the party to the litigation, a controlling owner who participates in the conduct of the litigation ordinarily has full opportunity and adequate incentive to litigate issues commonly affecting him and the corporation.’ [Citations.]” (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 151–152, italics omitted.)
Even so, respondent’s personal interests in the outcome of the case ultimately were not adequately represented in the litigation over the validity of service of process upon WorldPoint. Respondent was sued in his individual capacity, and WorldPoint’s motion did not seek to set aside the default judgment against him. This court’s opinion in the first appeal never considered or resolved the issue of the validity of service upon respondent. The default judgment against respondent was not set aside in the litigation that culminated in the opinion issued in the first appeal. Only after the service of process upon WorldPoint was finally adjudicated and found invalid did respondent then present and separately litigate his own motion to quash service of process and set aside the default judgment against him.
Under the unique facts presented in this appeal we do not think respondent had a fair opportunity to personally litigate the issue of the validity of service upon him during the course of the first motion by WorldPoint to set aside the default judgment. Ultimately, “ ‘ “This requirement of identity of parties or privity is a requirement of due process of law.” [Citation.] “Due process requires that the nonparty have had an identity or community of interest with, and adequate representation by, the . . . party in the first action. . . .” ’ [Citations.]” (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1070.) “ ‘In the final analysis, the determination of privity depends upon the fairness’ ” of binding a party with a result obtained in earlier proceedings in which it did not participate. (Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 91.) “[D]ue process requires that ‘ “the circumstances must have been such that the party to be estopped should reasonably have expected to be bound by the prior adjudication.” ’ [Citation.]” (Gottlieb v. Kest, supra, 141 Cal.App.4th 110, 156.) Respondent could not be expected to be bound by the determination of the validity of service of process on WorldPoint, and thereby have the time during which both motions were litigated to be excluded from the calculation of the three-year dismissal period, where he was a distinct legal entity with potential several liability in the proceedings, the first motion by WorldPoint did not present the issue of the validity of service of process upon him or reverse the default judgment against him, and he was subsequently forced to litigate the issue separately. (See id. at pp. 155–156; Knowles v. Tehachapi Valley Hospital Dist. (1996) 49 Cal.App.4th 1083, 1090–1091.) We therefore conclude that for purposes of section 583.240, subdivision (c), respondent was not a party to the litigation of the validity of service of process on WorldPoint. In our calculation of the three-year dismissal period, only the period of the litigation of respondent’s motion to quash service of process and set aside the default judgment against him may be tolled pursuant to section 583.240, subdivision (c).
B. Tolling Due to the Impracticability of Service upon Respondent .
Although the entirety of the period of litigation over the validity of service of process on WorldPoint was not tolled under the section 583.240, subdivision (c) litigation exception, we find that additional tolling occurred under another statutory exception.
Subdivision (d) of section 583.240 provides that time is tolled where service “was impossible, impracticable, or futile due to causes beyond the plaintiff’s control.” “The tolling provision for impossibility, impracticability or futility does not exist in a vacuum. ‘ “What is impossible, impracticable, or futile is determined in light of all the circumstances of a particular case, including the conduct of the parties and the nature of the proceedings. The critical factor is whether the plaintiff exercised reasonable diligence in prosecuting its case. [Citation.] The statute must be liberally construed, consistent with the policy favoring trial on the merits.” [Citation.] . . .’ [Citation.]” (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1270, italics omitted; see also Brown & Bryant, Inc. v. Hartford Accident & Indemnity Co. (1994) 24 Cal.App.4th 247, 251.)
The cases have recognized that “there are some circumstances in which it can be said almost invariably that the exception applies” for impracticability, such as where “a default judgment has been entered in favor of the plaintiff, effectively bringing the litigation to a standstill.” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438.) The courts have “recognized the impracticability of bringing a case to trial when the defendant is already in default.” (Dale v. ITT Life Ins. Corp., supra, 207 Cal.App.3d 495, 498.) The period “during which a party is in default, ‘as well as the period during which a default judgment is in effect,’ is excluded from computation” of the dismissal period under the impracticability exception. (Id. at pp. 498–499; see also Maguire v. Collier (1975) 49 Cal.App.3d 309, 313.) During the period in which defendant was in default “it would have been impracticable” for appellants to either serve respondent again or further pursue the case against him at the risk of engaging in duplicative and pointless proceedings. (Holland v. Dave Altman’s R. V. Center (1990) 222 Cal.App.3d 477, 483.) We note that this is not a case in which appellants failed to act diligently or respondent was unaware of the pending action. We thus conclude that the dismissal period was tolled under subdivision (d) of section 583.240 due to impracticability of proceeding with service of process on respondent from the date the default was entered against defendant until the default and default judgment were set aside. Thereafter, the dismissal period was tolled by the ongoing dispute over the validity of service upon respondent until the remittitur was filed in the second appeal on September 26, 2006.
In total, we find that the period from the entry of default on September 7, 2001, until the final resolution of the second appeal on September 26, 2006, is excluded under section 583.240 from the computation of the three-year dismissal period. That leaves only the time from the date the cross-complaint was filed, July 2, 2001, to September 7, 2001, and from the filing of the remittitur in the second appeal, September 26, 2006, until the motion for dismissal was filed, November 6, 2006, as time that is not excluded from calculation of the dismissal period under section 583.240. As so calculated, three years did not pass by the date respondent filed his motion for dismissal. Therefore, the motion was erroneously granted.
II. Respondent’s Motion for Restitution as a General Appearance .
Appellants also claim that even before the litigation over the second appeal was concluded on September 26, 2006, respondent made a “general appearance” in the case and thereby submitted himself to the personal jurisdiction of the court despite the lack of valid service of process. Appellants maintain that respondent’s motion for restitution made on August 4, 2006, included a request for relief and thereby constituted a general appearance.
“It is the well established rule in this state that although a defendant has a right to demand that process be issued against him in strict compliance with the manner provided by law, he may by his own act place himself within the jurisdiction of the court as effectively as though he were duly and regularly served with process.” (Pfeiffer v. Ash (1949) 92 Cal.App.2d 102, 104.) “Section 410.50, subdivision (a) provides in part, ‘A general appearance by a party is equivalent to personal service of summons on such party.’ [Citations.] . . . ‘ “A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service.” [Citation.]’ [Citations.]” (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52.)
“Section 1014 of the Code of Civil Procedure purports to define what constitutes an appearance as follows: ‘A defendant appears in an action when he answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him. . . .’ ” (Slaybaugh v. Superior Court (1977) 70 Cal.App.3d 216, 221.) “The statutory list of acts constituting an appearance ([Code Civ. Proc.], § 1014 [filing an answer, demurrer, motion to strike, etc.]) is not exclusive; ‘rather the term may apply to various acts which, under all of the circumstances, are deemed to confer jurisdiction of the person. . . .’ [Citation.]” (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147.) “[A] defendant may appear in ways other than those specifically designed in section 1014.” (Slaybaugh v. Superior Court, supra, at p. 222.)
Section 1014 has been amended and now reads: “A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant.”
“As a general rule, a defendant makes a general appearance when he or she takes any part in the action or proceeding.” (In re Marriage of Fitzgerald & King (1995) 39 Cal.App.4th 1419, 1428.) “A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority of the court to proceed. It does not require any formal or technical act.” (Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1756; see also Hamilton v. Asbestos Corp., supra, 22 Cal.4th 1127, 1147.) “ ‘[I]f a defendant by his appearance insists only upon the objection that he is not in court for want of jurisdiction over his person and confines his appearance for that purpose only, then he has made a special appearance, but if he raises any other question, or asks any relief which can only be granted upon the hypothesis that the court had jurisdiction of his person, then he had made a general appearance.’ [Citation.]” (Bank of America v. Harrah (1952) 113 Cal.App.2d 639, 641.)
“ ‘The nature of the appearance made . . . is not determined by the intentions of the party making the motion. Whether an appearance is general or special depends upon the relief sought.’ [Citation.]” (In re Krystle D. (1994) 30 Cal.App.4th 1778, 1797.) If a moving party “seeks relief on any basis other than lack of personal jurisdiction, he or she makes a general appearance.” (Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1037; see also Pfeiffer v. Ash, supra, 92 Cal.App.2d 102, 104.) “ ‘What is determinative is whether defendant takes a part in the particular action which in some manner recognizes the authority of the court to proceed.’ [Citation.] ‘The appearance will be considered “general” in nature if the defendant acts in a manner, “showing . . . a ‘purpose of obtaining any ruling or order of the court going to the merits of the case’.” ’ [Citation.]” (Nam Tai Electronics, Inc. v. Titzer (2001) 93 Cal.App.4th 1301, 1307.)
We are “thus required to analyze the defendant’s papers to determine if any affirmative relief could be granted on the merits, which is a general appearance. This is distinguished from a mere request for a dismissal based on a statutory provision, which is not a general appearance.” (Dial 800 v. Fesbinder, supra, 118 Cal.App.4th 32, 54.)
Although respondent specified in his motion for restitution that he was “appearing specially,” the “designation of his notice of motion as a special appearance is not controlling. Whether an appearance is general or special is determined by the character of the relief sought.” (Bank of America v. Harrah, supra, 113 Cal.App.2d 639, 641.)
Respondent did not confine his motion for restitution to a challenge to the writ of execution and levy upon the property based on the motion to quash service and set aside a default judgment for lack of jurisdiction. (Cf., Berard Construction Co. v. Municipal Court (1975) 49 Cal.App.3d 710, 719–720; Fount Wip, Inc. v. Golstein (1973) 33 Cal.App.3d 184, 190.) Respondent not only asserted in his moving papers that appellants “wrongly” seized property pursuant to a “void judgment” based on “ineffective” service of the cross-complaint – complaints that focused on the issue of personal jurisdiction – he added claims that touched upon the merits of the case and sought affirmative relief. Respondent alleged that appellants were liable to him for “conversion,” and asked for “full restitution” of the value of his personal property in the nature of a “money judgment” in the amount of $1,350,591.46. Also, “under the same principles of conversion” he requested an award of prejudgment interest “as well as reasonable compensation for his time and money expended of $50,000, or any other amounts that this Court deems just.” Respondent’s request for relief was thus not merely predicated on mandatory or statutorily authorized claims incident to an otherwise exempt motion that contested jurisdiction.
Further, in his supporting declarations respondent embarked upon a recitation of the substance of the dispute between the parties. In support of the request for restitution respondent avowed that Snyder Trust breached the lease agreement between the parties by failing to provide WorldPoint with possession of the premises, that WorldPoint “paid Eicon in full” for the tenant improvements at 706 Sansome Street contrary to the allegations of the cross-complaint, and that WorldPoint paid Snyder Trust $525,000 in liquidated damages in addition to the security deposit paid under the lease agreement. Respondent further claimed that he signed the lease agreement with Snyder Trust “merely in [his] capacity as President and CEO” of WorldPoint, and therefore had no liability to appellants in his individual capacity. He maintained that the “cross-complaint” against him “was in fact frivolous.”
From the grounds stated in respondent’s motion and his supporting affidavits it is apparent that he was not solely objecting to the jurisdiction of the court, but was also appealing to the equity and discretion of the court to undertake affirmative action to award him restitution and additional compensation for conversion of his personal property. (Bank of America v. Harrah, supra, 113 Cal.App.2d 639, 641.) The “ ‘filing of an affidavit, other than for the purpose of presenting matters bearing on the court’s jurisdiction, constitutes a general appearance. [Citation.]’ [Citation.]” (Slaybaugh v. Superior Court, supra, 70 Cal.App.3d 216, 223, italics omitted.) “[I]nclusion of any ground inconsistent with the sole claim that the judgment is void for lack of personal jurisdiction is sufficient to convert a special appearance into a general appearance.” (Carpenter v. Mohammed (1964) 227 Cal.App.2d 584, 585.) “[I]f a defendant seeks any affirmative relief on the merits, the application may be deemed a general appearance.” (Dial 800 v. Fesbinder, supra, 118 Cal.App.4th 32, 53; see also Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1270–1271.) Respondent asked for affirmative relief in the form of compensation for conversion of his property, which could only be given to a party on the basis that the court had jurisdiction of his person. (Bank of America v. Harrah, supra, at p. 641.) We find that respondent’s application for restitution was not confined to a jurisdictional objection, but sought “affirmative relief on the merits,” and therefore “may be deemed a general appearance regardless of its designation.” (In re Marriage of Torres (1998) 62 Cal.App.4th 1367, 1381; see also Proctor & Schwartz v. Superior Court (1950) 99 Cal.App.2d 376, 378.)
Respondent’s general appearance in the case occurred on August 4, 2006, before expiration of the partially tolled three-year dismissal period. Therefore, the section 583.210 dismissal period did not lapse, and now cannot lapse. “Section 583.220 recites that the time within which service must be made does not apply if there is a stipulation in writing or if some other act occurs constituting a general appearance in the action. This language of the statute recognizes that a defendant, without service upon him of the complaint and/or summons, may have knowledge of the lawsuit and file an answer or other pleading constituting a general appearance in the action before the three-year period has elapsed.” (Weatherby v. Van Diest (1991) 233 Cal.App.3d 506, 509.) “The plain meaning of the statute is that the three-year-and-sixty-day time limit for return of summons is relieved by the defendant’s general appearance during that time period.” (Wong v. Armstrong World Industries, Inc. (1991) 232 Cal.App.3d 1032, 1034.) “Section 583.220 provides an exception to these time requirements when the defendant makes a general appearance in the action.” (Biss v. Bohr (1995) 40 Cal.App.4th 1246, 1249.) Pursuant to section 583.220, respondent made a general appearance within three years after being joined in the action, so the time limit for service of process does not apply. (Janzen v. Workers’ Comp. Appeals Bd. (1997) 61 Cal.App.4th 109, 117.)
Section 583.220 reads: “The time within which service must be made pursuant to this article does not apply if the defendant enters into a stipulation in writing or does another act that constitutes a general appearance in the action. For the purpose of this section none of the following constitutes a general appearance in the action: [¶] (a) A stipulation pursuant to Section 583.230 extending the time within which service must be made. [¶] (b) A motion to dismiss made pursuant to this chapter, whether joined with a motion to quash service or a motion to set aside a default judgment, or otherwise. [¶] (c) An extension of time to plead after a motion to dismiss made pursuant to this chapter.”
DISPOSITION
Accordingly, the dismissal of appellants’ cross-complaint under section 583.210 is reversed. Respondent is ordered to file a responsive pleading to the cross-complaint within 20 days of the issuance of the remittitur. The case is remanded to the trial court for further proceedings consistent with the views expressed herein. Costs on appeal are awarded to appellants.
We concur: Marchiano, P. J., Stein, J.