Opinion
v.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC370319 Anthony J. Mohr, Judge.
Metzger Law Group, Raphael Metzger and Gregory A. Coolidge for Plaintiff and Appellant.
Carroll, Burdick & McDonough, Matthew J. Kemner and Troy M. Yoshino for Defendant and Respondent.
BIGELOW, J.
This appeal arises from a trial court order granting a motion to quash service of summons on the ground that the defendant company “does not have a constitutionally sufficient nexus with the State of California to allow [the] Court to exercise of personal jurisdiction over it.” Plaintiff appeals, arguing, as he did in the trial court, that he was not afforded the statutorily prescribed number of days notice for the hearing on the motion to quash. Apart from his notice argument, plaintiff does not otherwise suggest that the trial court’s “insufficient nexus” determination is incorrect in any way. We affirm.
FACTS
In April 2007, Wilfredo Velasquez filed a “complaint for toxic injuries” against a number of manufacturers and distributors of food extracts and essences, including Doe defendants. Broadly summarized, Velasquez’s complaint alleges that his exposure to the defendants’ products while employed at “Gold Coast,” a maker of “flavorings,” caused him to develop bronchiolitis obliterans.
On January 4, 2008, the trial court signed and entered an order authorizing the electronic service of all case documents by LexisNexis File & Serve.
On January 14, 2008, Velasquez filed a Doe amendment naming R.C. Treatt & Co., Ltd., as Doe 23. On January 22, 2008, Velasquez served Treatt with a summons and complaint, and the trial court’s order authorizing electronic service, at an address in Suffolk, England. Service of process was accomplished in accord with the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters.
On April 1, 2008, Treatt filed and served motion to quash service, with a hearing date on the motion set for April 23, 2008. Velasquez acknowledges that Treatt “electronically served” its motion to quash “through Lexis/Nexis File & Serve on April 1, 2008.”
Treatt’s motion to quash service was supported by a declaration by its “managing director,” H.W. Bovill. Mr. Bovill’s declaration set forth the following facts regarding the company’s connections, or lack thereof, to California:
Treatt is governed by the corporate laws of England and Wales. Its “registered office address” under the corporate law of England and Wales is located in Suffolk, in the United Kingdom. Treatt has never been qualified, licensed, or authorized to do business in California. Treatt does not have and never has had any officers, employees, or agents stationed to work for it in California. No one is authorized by Treatt to accept service of process in California, nor has Treatt ever appointed an agent for service of process in California.
Treatt did not conduct any business activities in California during the relevant time frame. It has not advertised in California media outlets, trade journals, or publications, and it has not conducted solicitation activities in California. It has not sold products, services, or any other item to California customers. It has not entered into contracts in California. Treatt does not have and never has had California bank accounts. It does not now own, nor has it ever owned, California real estate. It has never paid California taxes.
Treatt has never sold any diacetyl in California nor has it ever shipped any diacetyl to California. Treatt never sold or shipped any diacetyl to Velasquez’s employer, Gold Coast. Treatt distributes diacetyl to business customers in the United Kingdom, but does not manufacture diacetyl. Treatt has sold diacetyl in the United Kingdom to Berje, Inc. Treatt understands that Berje may operate in New Jersey, but all purchases by Berje from Treatt occurred “ex works,” with transfer of title in the United Kingdom. Thus, Berje, and not Treatt, was responsible for any importation of diacetyl into the United States, and Berje controlled any resale of that diacetyl within the United States. Once the title to the product passed to Berje in the United Kingdom, Treatt had no knowledge or control over its ultimate destination, marketing, or labeling within the United States.
Berje and Treatt are not affiliated companies, and Treatt has no day-to-day control over Berje. Treatt does not exercise any control over Berje with respect to any sales of diacetyl in the United States. Treatt had no knowledge or understanding that Berje would resell diacetyl in California or to Gold Coast. Any sales of such diacetyl were due to Berje’s unilateral activity.
Treatt does not design any of its products specifically for the California market, and it did not design or manufacture the diacetyl at issue in this case. Treatt has never entered into any distribution agreement with any distributors in California. Treatt has never created, employed or controlled any distribution system in California. Treatt has never established any channels for providing regular advice regarding its products to customers in California.
Treatt has never marketed its products through a distributor in California who has agreed to serve as the sales agent for the product. Berje is an independent company, which buys and then owns and controls the products it resells — without involvement from Treatt. Berje has never been Treatt’s sales agent in California or anywhere else.
Treatt has never purposefully or voluntarily directed its activities toward the State of California with respect to the design, manufacture, or sale of its products.
On April 10, 2008, Velasquez filed opposition to Treatt’s motion to quash on the sole ground that Treat had served its motion “only sixteen court days before the hearing on said motion....” Citing a “March 2007” trial court order, Velasquez stood fast on its objection that Treatt “was required to... electronically serve its motion to quash no later than March 28, 2008, for the motion to be heard on April 23, 2008.”
In a reply, Treatt answered that it knew nothing about a “March 2007” order, and maintained it had served its motion to quash in accord with the trial court’s January 2008 order authorizing electronic service.
At the noticed hearing on April 23, 2008, Velasquez’s counsel stood steadfast on his objection that the notice period for the hearing on Treatt’s motion was not sufficient. The trial court disagreed: “I think it was.” During the remaining moments of the hearing, there were some exchanges about discovery, with Treatt’s counsel explaining that Velasquez had not requested any discovery, and had not responded to Treatt’s offers to provide discovery, during the four months between (1) the date Treatt was served with the summons, and (2) the hearing date on Treatt’s motion to quash; and with Velasquez’s lawyer submitting, “We’d like an opportunity to do discovery.” The trial court implicitly found no good cause had been shown to continue what it considered a properly noticed hearing, and implicitly denied a continuance, and then granted Treatt’s motion to quash.
On April 25, 2008, the trial court signed and entered a formal order granting Treatt’s motion to quash. The court’s order includes an express finding and ruling that Treatt “does not have a constitutionally sufficient nexus with the State of California to allow [the] Court to exercise personal jurisdiction over it.”
On May 7, 2008, Velasquez filed a timely notice of appeal.
DISCUSSION
Velasquez argues the trial court’s order granting Treatt’s motion to quash service must be reversed for three serially connected reasons: first, Treatt was required to serve its motion “at least 16 court days before the hearing” on the motion under Code of Civil Procedure section 1005, subdivision (b) (section 1005(b)); second, section 1010.6, subdivision (a)(6) (section 1010.6(a)(6)), provides that any period of notice prescribed by statute “shall be extended after service by electronic transmission by two court days;” and, finally, citing Bohn v. Bohn (1913) 164 Cal. 532, 536-538 (Bohn), Velasquez argues that “any motion which is not timely or otherwise properly noticed must be denied by the trial court if the party opposing the motion objects to the motion as being improperly noticed....” (Italics added.)
All further section references are to the Code of Civil Procedure.
Treatt responds with two arguments: first, it says that it served its motion in accord with time requirements prescribed by section 1005(b); and, second, it says that, assuming its notice was not statutorily sufficient, the trial court nonetheless had the authority to consider the motion on the merits in the absence of a showing by Velasquez that he was prejudiced by the foreshortened notice.
For the reasons explained below, we are not persuaded to reverse the trial court’s order granting Treatt’s motion to quash service of summons.
The Service Statutes
Section 1005(b) provides that “all moving and supporting papers shall be served... at least 16 court days before the hearing.” This is the governing rule when a moving party personally serves notice of a motion. When a moving party uses a different mode or method of delivery to accomplish service of a motion, section 1005(b) requires that the moving party provide additional notice. For example: “[I]f the notice is served by facsimile transmission..., the required 16-day period of notice before the hearing shall be increased by two calendar days.”
Section 1010.6, subdivision (a) authorizes our state’s trial courts to adopt local rules “permitting electronic... service of documents,” or, more colloquially, permitting the service of documents “over the internet.” Any such local trial court rules are required to include a number of conditions governing electronic service of documents, including the following: “Electronic service is complete at the time of transmission, but any period of notice... which... is prescribed by statute or rule of court... shall be extended after service by electronic transmission by two court days.” (§ 1010.6(a)(6).)
This is how we read the statutes: when a party serves notice of a motion “by fax,” the party is required by section 1005(b) to give 16 court days, plus a further 2 calendar days, notice of the hearing on the motion, whereas, when a party serves notice of a motion “over the internet,” the party is required by sections 1005(b), and 1010.6, subdivision (a), to give 16 court days, plus a further 2 court days, notice of the hearing on the motion.
The Notice Calculation
Treatt served its motion to quash “over the internet.” Applying section 12, the “computation of time” statute, we calculate that 16 court days, plus a further 2 court days, before the hearing date of April 23, 2008, tracks back to a required service date of March 27, 2008. So, as a first step, we agree with Velasquez that Treatt provided insufficient notice of its motion to quash by electronically serving the motion on April 1, 2008.
March 31, 2008, was not a “court day,” due to Martin Luther King Day holiday.
We summarily reject Treatt’s contention that Velasquez agreed to a shortened notice period. The parties agreed that Treatt would have until April 1, 2008, to file and serve its motion. But there is nothing in the parties’ agreement to suggest that Velasquez agreed to a shortened notice period on the motion. In other words, there is no problem accompanying Treatt’s service of its motion on April 1, 2008, over the internet, but it should have noticed the hearing on the motion for April 25, 2008, not April 23, 2008.
Either way, the trial court erred in finding that Treatt had provided adequate statutory notice for its motion to quash.
The Standard of Review
Treatt argues that Velasquez’s objection, in the trial court,to the lack of adequate notice for the hearing on Treatt’s motion was not sufficient to prevent the trial court from addressing and ruling on the motion because Velasquez did not show, in the trial court, that he was prejudiced by the notice defect. For his part, Velasquez responds that he was not required, in the trial court, to show prejudice because he was entitled to stand firm on his objection to the notice defect. In our view, both parties are slightly missing the mark because their arguments fail to appreciate the ramifications flowing from the ensuing transfer of the cause to our court. In other words, we have found neither of the parties’ briefs to be helpful in addressing the bite-sized, but rather interesting issue which is actually presented by this appeal, namely, what showing must an appellant make on appeal to obtain relief from a trial court’s ruling on a motion that was rendered after the court mistakenly found that notice of the motion was adequate? Or, framed in other words, should the trial court’s incorrect computation of the notice period prescribed in sections 1005(b) and 1010.6(a)(6) be considered reversible error per se, or should it be subject to a harmless error analysis?
Article VI, section 13, of the California Constitution establishes the constitutional doctrine of reversible error governing our court’s power to reverse a trial court judgment. Article VI, section 13, commands: “No judgment shall be set aside [by a reviewing court]... for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Italics added.) A miscarriage of justice within the meaning of article VI, section 13, may be found “when it appears reasonably probable that were it not for the error a result more favorable to the appellant could have been obtained.” (Williams v. Lambert (1962) 201 Cal.App.2d 115, 126.) In other words, a miscarriage of justice justifying reversal of a judgment will not be declared unless a reviewing court finds that an error caused an appellant to suffer case-effecting prejudice.
Moreover, in examining whether prejudice resulted from error, “[p]rejudice is not presumed and the burden is on the appellant to show its existence.” (Marc Bellaire, Inc. v. Fleischman (1960) 185 Cal.App.2d 591, 596.) As the Supreme Court has explained: “To presume in favor of... prejudice would be directly contrary to the policy of this state as declared in section [13] of article VI of the Constitution.... It follows, there-fore, that, regardless of the state of the record, attacks on a judgment based on technical defects in... procedure are not favored by reviewing courts, and it is in light of [this] constitutionally declared policy... that [a reviewing court] must examine the record to ascertain whether [an appellant] has sustained [his or her] burden of establishing error and prejudice.” (Vaughn v. Jonas (1948) 31 Cal.2d 586, 601.)
In light of the constitutional principles outlined above, we find that the trial court’s incorrect computation of the notice period prescribed in sections 1005(b) and 1010.6(a)(6) should be reviewed under a harmless error analysis, and not considered reversible error per se. Bohn, supra, 164 Cal. 532 does not persuade us differently. In Bohn, a defendant filed a motion to transfer a case from Orange County to Los Angeles County, and served the motion on the plaintiff, but the motion “did not state any time when the motion would be made or brought on for hearing.” (Id. at pp. 536-537.) Given the lack of any notice of the hearing at all, the Supreme Court upheld the denial of the motion. (Id. at pp. 536-539.) Bohn did not address the problem presented in the current case, to wit, what should be done about a two-day violation of the notice statutes.
Harmless Error
After reviewing the entire record, we find the violation of the notice statutes was harmless. As a preliminary step, we observe that the prejudice analysis in this case has two layers. On the first level, it goes without saying that, if the hearing on Treatt’s motion had been continued or placed off-calendar, then Treatt’s motion would not have been granted on April 23, 2008. But this does not mean, as Velasquez seems to suggest in his opening brief, that Treatt’s failure to give sufficient notice forever barred the company from challenging personal jurisdiction. Bohn did not hold, as Velasquez says, that a trial court must deny an inadequately noticed motion; Bohn holds that it is within a trial court’s power to deny an inadequately noticed motion. The far better, and more modern practice since Bohn (1913), however, is for the trial court to invoke one of two remedies: (1) continue the hearing on the motion in order to give the opposing party an opportunity to prepare and file opposition (see Carlton v. Quint (2000) 77 Cal.App.4th 690, 697-698); or (2) place the motion off-calendar, leaving it to the moving party to re-file its motion with the proper notice.
All of this means, then, that a trial court commits error when it rules on the merits of an inadequately noticed motion. We agree; that’s why we are past the “error” element of this case, and are examining whether the error was “harmless.” This brings us to the second layer of our prejudice analysis: Had Treatt’s motion to quash had been heard on some later date than April 23, 2008, is there a reasonable probability that a result more favorable to Velasquez may have been obtained? We see nothing in the record, or in Velasquez’s briefs on appeal, that begins to support such a conclusion.
The facts presented by Treatt in support of its motion to quash were just about as close to a casebook model as one might see in connection with such a motion. (Cf. Internat. Shoe Co. v. Washington (1945) 326 U.S. 310.) Treatt simply does not have, and has never had, any “presence” of any kind in California. No business offices, no operational facilities, no real property, no employees, no bank account, no advertising, no sales, and no deliveries. Against Treatt’s showing, Velasquez did not suggest in the trial court, and has not suggested in our court, that there is even a possibility that different facts may exist. On the contrary, the record construed in favor of the judgment shows that Velasquez never even bothered to begin an investigation into the possibility that different facts may exist. Indeed, the record suggests that Velasquez answered Treatt’s discovery offers with stony silence.
We recognize the “dilemma” that Vasquez faced by being placed in the position of having to make an election between standing firm on his timeliness objection to Treatt’s motion, and offering any substantive opposition to the motion (see, e.g., Carlton v. Quint, supra, 77 Cal.App.4th at pp. 697-698 [a party opposing a motion waives notice defects when he contests the motion on the merits]), but nothing prevented Velasquez, in the trial court or in our court, from showing that discovery of jurisdictional facts was ongoing, or had even started. We are amply comfortable in declaring that no “miscarriage of justice” will result from affirming the trial court’s order granting Treatt’s motion to quash.
DISPOSITION
The trial court’s order is affirmed. Respondent is to recover its costs on appeal.
We concur: RUBIN, Acting P. J., BAUER, J.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.