Silver v. Siegel CA2/3 ( 2021 )

Filed 1/15/21 Silver v. Siegel CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MARCUS DANIEL SILVER, B301917
Plaintiff and Appellant, Los Angeles County
Super. Ct. No.
v. 19STCV17949
BERTRAM SIEGEL et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Terry Green, Judge. Affirmed.
Marcus Daniel Silver, in pro. per., for Plaintiff and
Appellant.
Jenner & Block, David R. Singer, AnnaMarie A. Van
Hoesen, and Camila A. Connolly for Defendants and
Respondents.
_______________________________________
INTRODUCTION
Plaintiff and appellant Marcus Daniel Silver (plaintiff)
appeals from the trial court’s September 16, 2019 order granting
the motion to quash service of summons for lack of personal
jurisdiction brought by defendants and respondents Bertram
Siegel, Carole Siegel, David Siegel, and Two Sigma Investments,
LP (defendants).1 Plaintiff contends the trial court erred “in
interpreting and following relevant rules and laws, especially
regarding peremptory challenges and deadlines for filing
responses.”2 We affirm.
BACKGROUND
On May 22, 2019, plaintiff filed an unverified complaint in
the Superior Court of the State of California for the County of Los
Angeles. The complaint asserts claims for negligence, infliction of
emotional distress, fraud, and conspiracy to commit fraud against
defendants. The Siegels are plaintiff’s relatives. David Siegel,
plaintiff’s cousin, is a founding partner of Two Sigma
Investments, LP. Plaintiff sent defendants copies of the
1Defendants’ unopposed motion to augment the record, filed on July 6,
2020, is granted.
2Plaintiff’s challenge to Judge Holly J. Fujie’s July 30, 2019 order
accepting defendants’ peremptory challenge under section 170.6 of the
Code of Civil Procedure is not properly before us. That ruling may be
reviewed only by a writ of mandate. (See In re Sheila B. (1993) 19
Cal. App. 4th 187, 195.) Further, plaintiff’s notice of appeal listed only
the September 16, 2019 order. We therefore pass this contention
without further consideration.
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complaint via “US Priority Mail.” This mailing did not include
any summons, which had not yet been issued by the court.
On May 30, 2019, plaintiff mailed defendants the following
documents: (1) copies of the complaint; (2) copies of the court’s
summons, dated May 30, 2019; (3) proof of service forms; and (4)
acknowledgement of receipt of summons forms. Plaintiff directed
these documents to defendants’ respective addresses in New
York. Plaintiff concedes the acknowledgment of receipt forms
were never returned, “arguably rendering service of the
Summons ineffective” until July 8, 2019, when defendants filed a
notice of removal.
On July 8, 2019, defendants removed the action to federal
court based on diversity jurisdiction. On July 9, 2019, the federal
court issued an order of remand, finding Two Sigma Investments,
LP had not included sufficient citizenship information about two
of its members. Accordingly, the case was remanded back to the
Superior Court.
On July 15, 2019, plaintiff filed a request for entry of
default in the Superior Court. On July 23, 2019, the Superior
Court denied plaintiff’s request because a notice of removal to
federal court had been filed on July 8, 2019, there was a “[s]tay
on the case,” and the acknowledgment of receipt forms had not
been signed and dated by defendants or persons authorized to
accept service.
Meanwhile, on July 16, 2019, defendants filed a
peremptory challenge to the assigned judicial officer, Judge Fujie,
under section 170.6 of the Code of Civil Procedure.3 On July 19,
3 Undesignated statutory references are to the Code of Civil Procedure.
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2019, the court denied the challenge, noting that the notice of
removal to federal court had been filed on July 8, 2019 and,
therefore, it has no jurisdiction over the case.
Because the Superior Court had not received the order of
remand from the federal court, on July 23, 2019 defendants filed
a Notice of Remand, and attached the federal court’s July 9, 2019
order of remand as an exhibit.
On July 26, 2019, defendants refiled the peremptory
challenge to Judge Fujie. On July 30, 2019, Judge Fujie issued a
minute order stating that defendants’ peremptory challenge “was
timely filed, in proper format, and is accepted.” The case was
reassigned to Judge Terry Green for all future proceedings.
On August 8, 2019, defendants filed a motion to quash
service of summons for lack of personal jurisdiction, supported by
five declarations. Defendants contended they are not subject to
general or specific jurisdiction in California. The Siegels maintain
their permanent residences in New York, where they are also
citizens. In addition, none of the individual defendants lives in
California, owns property in California, or maintains any
business presence in California. Two Sigma Investments, LP is a
limited partnership governed by the laws of Delaware, with its
primary place of business in New York; none of its partners are
citizens of California and it has no registered agents in
California. Defendants also concurrently filed a demurrer and
motion to strike punitive damages.
Plaintiff filed a combined opposition to the demurrer,
motion to strike, and motion to quash. He did not, however,
submit any evidence to support the exercise of personal
jurisdiction over defendants. Instead, he relied on his unverified
complaint.
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On September 16, 2019, the court conducted a hearing on
the motions and demurrer. During the hearing the court stated,
“I don’t see any basis for jurisdiction in California.” The Court
further stated, “There is no evidence of contacts with California,
substantial or insubstantial,” and “there’s no evidence” of
purposeful availment. After hearing from both sides, the court
granted defendants’ motion to quash, took the demurrer and
motion to strike off calendar as moot, and dismissed the lawsuit.
DISCUSSION
The most fundamental rule of appellate review is that the
judgment or order challenged on appeal is presumed to be correct,
and “it is the appellant’s burden to affirmatively demonstrate
error.” (People v. Sanghera (2006) 139 Cal. App. 4th 1567, 1573.)
“ ‘All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
affirmatively shown.’ ” (Denham v. Superior Court (1970)
2 Cal. 3d 557, 564.) To overcome this presumption, an appellant
must provide a record that allows for meaningful review of the
challenged order. (Ibid.)
In addition, parties must provide citations to the appellate
record directing the court to the supporting evidence for each
factual assertion contained in that party’s briefs. When an
opening brief fails to make appropriate references to the record to
support points urged on appeal, we may treat those points as
waived or forfeited. (See, e.g., Lonely Maiden Productions, LLC v.
GoldenTree Asset Management, LP (2011) 201 Cal. App. 4th 368,
384; Dietz v. Meisenheimer & Herron (2009) 177 Cal. App. 4th 771,
798–801 [several contentions on appeal “forfeited” because
appellant failed to provide a single record citation demonstrating
it raised those contentions at trial].) “Any statement in a brief
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concerning matters in the appellate record—whether factual or
procedural and no matter where in the brief the reference to the
record occurs—must be supported by a citation to the record.”
(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs
(The Rutter Group 2013) ¶ 9:36, p. 9-12, citing Cal. Rules of
Court, rule 8.204(a)(1)(C).)
Further, “an appellant must present argument and
authorities on each point to which error is asserted or else the
issue is waived.” (Kurinij v. Hanna & Morton (1997) 55
Cal. App. 4th 853, 867.) Matters not properly raised or that lack
adequate legal discussion will be deemed forfeited. (Keyes v.
Bowen (2010) 189 Cal. App. 4th 647, 655–656.)
An appellant has the burden not only to show error but
prejudice from that error. (Cal. Const., art. VI, § 13.) If an
appellant fails to satisfy that burden, his argument will be
rejected on appeal. (Century Surety Co. v. Polisso (2006) 139
Cal. App. 4th 922, 963.) “[W]e cannot presume prejudice and will
not reverse the judgment in the absence of an affirmative
showing there was a miscarriage of justice. [Citations.] Nor will
this court act as counsel for appellant by furnishing a legal
argument as to how the trial court’s ruling was prejudicial.
[Citations.]” (Ibid.)
Plaintiff’s briefs are insufficient on a multitude of grounds.
Mainly, his briefs fail to include a single citation to the clerk’s
transcript. And to the extent his briefs contain citations to legal
authorities, plaintiff fails to develop his arguments by applying
those authorities to the facts in this case. (See City of Santa
Maria v. Adam (2012) 211 Cal. App. 4th 266, 287 [“we may
disregard conclusory arguments that are not supported by
pertinent legal authority or fail to disclose the reasoning by
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which the appellant reached the conclusions he wants us to
adopt”].) Plaintiff, therefore, has forfeited all his contentions on
appeal. We nonetheless briefly address several of plaintiff’s
arguments to the extent they are supported by citations to legal
authorities.
Plaintiff contends defendants should have filed the notice of
removal to federal court within 30 days of purportedly receiving
copies of the complaint by mail on May 24, 2019. As his sole
authority, plaintiff cites Michetti Pipe Stringing, Inc. v. Murphy
Bros. (11th Cir. 1997) 125 F.3d 1396, 1398, which is no longer
good law. In Michetti, the Eleventh Circuit held that the 30-day
removal period under 28 U.S.C. § 1146 “begins to run when a
defendant actually receives a copy of a filed initial pleading by
any means.” The United States Supreme Court reversed,
however, holding that the time to remove “is triggered by
simultaneous service of the summons and complaint, or receipt of
the complaint, ‘through service or otherwise,’ after and apart
from service of the summons, but not by mere receipt of the
complaint unattended by any formal service.” (Murphy Bros. v.
Michetti Pipe Stringing, Inc. (1999) 526 U.S. 344, 347–348.) Thus,
defendants’ time to remove the case to federal court was not
triggered until they were formally served with the complaint and
summons.
Plaintiff also contends the motion to quash was not timely
filed after the federal court remanded the case back to the state
court. Section 430.90, subdivision (a)(1), provides 30 days to file a
motion to quash service of summons “from the day the original
court receives the case on remand.” Here, the federal court issued
its order remanding this case back to the Superior Court on July
9, 2019. Defendants filed the motion to quash thirty days later,
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on August 8, 2019. Even if the Superior Court received the case
on remand on July 9, 2019—the very same day that the federal
court issued the order of remand—defendants timely filed their
motion.
Finally, plaintiff contends the motion to quash should have
been denied because defendants made numerous general
appearances thereby conceding to the state court’s jurisdiction.
Specifically, he argues that defendants made general
appearances by filing the notice of removal, filing a peremptory
challenge to Judge Fujie, and simultaneously filing the demurrer
and motion to strike with the motion to quash. We disagree.
First, filing a notice of removal cannot constitute a general
appearance because section 430.90 expressly provides time for a
defendant to bring a motion to quash service of summons
following a remand to state court. Accordingly, the time for
defendant to respond to the complaint commenced when the
federal court remanded the case. (§ 430.90, subd. (a)(2) [providing
30 days to respond to the complaint upon remand after removal].)
Put differently, the statute confirms that when a defendant
removes an action to federal court, the defendant does not waive
the right to later challenge the state court’s personal jurisdiction
over the defendant.
Second, it is well established that a party can file a
peremptory challenge under section 170.6 without making a
general appearance. (See La Seigneurie U.S. Holdings, Inc. v.
Superior Court (1994) 29 Cal. App. 4th 1500, 1506; Loftin v.
Superior Court (1971) 19 Cal. App. 3d 577, 578–579.)
Third, section 418.10, subdivision (e), expressly provides
that a defendant may make a motion to quash service of
summons for lack of jurisdiction and “simultaneously answer,
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demur, or move to strike the complaint.” Section 418.10,
subdivision (e)(1), further provides, “[N]o act by a party who
makes a motion under this section, including filing an answer,
demurrer, or motion to strike constitutes an appearance, unless
the court denies the motion made under this section.” Thus, a
defendant “may raise objections to personal jurisdiction along
with any other defenses without being deemed to have waived
the jurisdictional objection.” (Roy v. Superior Court (2005) 127
Cal. App. 4th 337, 342 [holding that defendants do not waive
jurisdictional arguments by concurrently filing a demurrer with
motion to quash].)
In sum, defendants did not concede to the Superior Court’s
jurisdiction.
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DISPOSITION
The September 16, 2019 order is affirmed. Defendants shall
recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
DHANIDINA, J.
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