Opinion
C079689
08-08-2018
MARK DAVID PERCIN, Plaintiff and Appellant, v. JZ FLOORS, INC., Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. TCV0001986)
Mark David Percin sued JZ Floors, Inc. doing business as National Wholesale Flooring (JZ Floors) regarding a carpet purchase. JZ Floors filed a motion to quash service of the summons and to dismiss the complaint, asserting the trial court lacked personal jurisdiction over it because JZ Floors had insufficient contacts with California. Prior to the hearing on the motion, Percin filed a first amended complaint adding causes of action for negligent misrepresentation and fraud. Nevertheless, the trial court granted the motion and dismissed Percin's action against JZ Floors.
Representing himself, Percin now challenges the trial court's order, and JZ Floors asserts, among other things, that Percin's appeal is untimely. We conclude Percin's appeal is timely and the trial court should have taken the hearing on the motion off calendar after Percin filed the amended complaint. We will reverse the judgment dismissing the action against JZ Floors and vacate the trial court's order as moot.
BACKGROUND
Percin sued JZ Floors for breach of contract, breach of warranty of fitness for a particular purpose and breach of warranty of merchantability in relation to the sale of carpet. The box for "LIMITED CIVIL CASE" was checked on the form complaint, indicating that the amount demanded exceeded $10,000 but did not exceed $25,000.
JZ Floors filed a motion pursuant to Code of Civil Procedure section 418.10 et seq. to quash service of the summons and dismiss the complaint against it on the ground that the trial court lacked personal jurisdiction over it because JZ Floors was not a California resident and had insufficient contacts with California. Before the hearing on the motion, Percin filed a first amended complaint.
The first amended complaint added another defendant and also added causes of action for negligent misrepresentation and fraud. The caption of the first amended complaint indicated the action was an unlimited civil case and that Percin demanded a jury trial. Each cause of action alleged that as a result of defendants' actions, Percin suffered damages in excess of the trial court's minimum jurisdictional limit.
The trial court ultimately granted the motion and dismissed the action against JZ Floors.
DISCUSSION
I
As a threshold matter, JZ Floors contends Percin's appeal is not timely because this is a limited civil case and Percin did not file a notice of appeal within 30 days of service of the notice of entry of order. (Code Civ. Proc., § 904.2; Cal. Rules of Court, rule 8.822.) Although we must dismiss an appeal for lack of jurisdiction if the notice of appeal is untimely (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113), here the appeal is timely because this is an unlimited civil case. (Code Civ. Proc., § 904.1; Cal. Rules of Court, rule 8.104(a).)
Percin initially filed the action as a limited civil case, but then filed a first amended complaint with a caption stating "UNLIMITED CIVIL CASE." The trial court clerk filed the first amended complaint, and there appears to be no basis for dispute that the trial court accepted Percin's payment of the reclassification fee. The trial court must reclassify a case from limited to unlimited when it accepts for filing an amended pleading increasing the amount in controversy to over $25,000 and the plaintiff pays the reclassification fee. (See Leonard v. Superior Court (2015) 237 Cal.App.4th 34, 36, 42-44; cf. AP-Colton LLC v. Ohaeri (2015) 240 Cal.App.4th 500, 503.) Both Percin and JZ Floors used the Judicial Council forms for an unlimited civil case in this appeal.
Accordingly, we turn to the merits of the appeal.
II
Percin challenges the trial court's order granting the motion to quash the summons and dismissing the complaint. Among other things, he contends the motion should have been denied because it was directed to a superseded pleading. We agree the first amended complaint had a bearing on any motion to quash and to dismiss.
An amended complaint supersedes all prior complaints. (State Comp. Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130.) "The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment. [Citation.] [¶] Because there is but one complaint in a civil action [citation], the filing of an amended complaint moots a motion directed to a prior complaint. [Citation.]" (Id. at p. 1131[motion for summary adjudication]; see People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 506 (Strathmann) [demurrer]; JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477-479 [anti-strategic lawsuit against public participation motion]; see also Naylor v. Superior Court (2015) 236 Cal.App.4th Supp. 1, 4 [dicta in case involving motion to quash service of summons and complaint].)
JZ Floors argues that its motion to quash and dismiss was directed to jurisdiction, not the original pleading, and the existence or lack of personal jurisdiction does not change because a plaintiff adds causes of action. It is true that when a nonresident defendant challenges personal jurisdiction, such jurisdiction must be established by competent evidence. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1233.) But the pleading is not irrelevant to the trial court's determination. The pleading " 'defines the cause of action, the nature of which has some bearing upon the decision whether it is fair and reasonable to require [a nonresident defendant] to appear and defend in this state.' " (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) And the plaintiff, who bears the burden of demonstrating minimum contacts between the defendant and the forum state, need only demonstrate that defendant's conduct regarding the pleaded causes of action constituted constitutionally cognizable minimum contacts. (Ibid.)
The first amended complaint added causes of action for negligent misrepresentation and fraud. Those causes of action alleged that defendants misrepresented the quality of the carpet, that the carpet would be fit for Percin's intended use in a high-end office building, that the warranty for the carpet covered all costs associated with defects, that the carpet would be delivered to Percin in Truckee, California, and that JZ Floors was authorized to do business in California. Among other things, the first amended complaint added allegations that during telephone calls Percin placed or took in California, JZ Floors's sales representative told Percin that JZ Floors had carpet which would satisfy the needs of Percin's high-end commercial project and that the price included delivery of the carpet to California. Because the new causes of action and allegations in the first amended complaint had some bearing on a motion to quash and dismiss, the trial court should have taken the hearing on JZ Floors's motion off calendar. (Strathmann, supra, 210 Cal.App.4th at p. 506.) We offer no opinion on any subsequent motion directed at the first amended complaint.
DISPOSITION
The judgment is reversed and the order granting JZ Floors's motion to quash service of summons and dismissing the action is vacated as moot. Percin is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/S/_________
MAURO, Acting P. J. We concur: /S/_________
DUARTE, J. /S/_________
RENNER, J.