Qassimyar v. Childrens Hospital San Diego

Filed 1/27/09 Qassimyar v. Childrens Hospital San Diego CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Yuri Hofmann, Judge. Affirmed.

Plaintiff Fatema Qassimyar, in propria persona, appeals from an order quashing service of process on Laura T. Martin, M.D. in plaintiff's action arising out of medical care Dr. Martin provided to her in June 2003.[1] The trial court granted Dr. Martin's motion on grounds she had already been dismissed from the case as an unserved, non-appearing party and that the summons and complaint consequently had no legal effect. Plaintiff challenges the order on grounds she properly served Dr. Martin on October 2, 2007, in the state of Ohio. We affirm the order.

PROCEDURAL BACKGROUND

In December 2005 plaintiff filed a lawsuit against Dr. Martin and numerous other persons and entities arising out of medical procedures she underwent in June of 2003. In February 2006 plaintiff attempted to serve Dr. Martin with the summons and complaint (by then her second amended complaint) by certified mail to a California address. Plaintiff attempted service on Dr. Martin again in January 2007. On May 18, 2007, the trial court quashed plaintiff's attempts to serve the summons and complaint on Dr. Martin. That day, the court held a case management conference at which it deemed the case at issue and issued a minute order stating that by "stipulation of the parties, no new parties may be added without leave of court and all unserved non-appearing and fictitiously named parties are dismissed 5/18/07." Several days later, plaintiff made yet another attempt at serving the summons and complaint on Dr. Martin by serving Dr. Martin's attorneys' offices. Counsel for various other defendants served plaintiff with notice of the May 18, 2007 ruling. In June and July 2007 plaintiff unsuccessfully sought

orders permitting her to serve Dr. Martin by publication.[2]

In August 2007 the trial court quashed plaintiff's latest attempt to serve Dr. Martin. On October 2, 2007, plaintiff had a process server deliver the summons and second amended complaint (along with other papers) to a legal secretary at Dr. Martin's place of employment in Columbus, Ohio. Dr. Martin again moved to quash service on grounds of lack of personal jurisdiction in that she had been dismissed from the case as an unserved defendant and thus service of the summons and complaint had no legal effect. Dr. Martin argued plaintiff would have to seek leave of court to amend her complaint to add her as a party before she could again be made a defendant in the case (a motion Dr. Martin asserted would be unsuccessful in any event), but absent such a motion, the court had to quash plaintiff's service.

On January 18, 2008, the trial court granted Dr. Martin's motion, ruling that as of the May 18, 2007 case management conference, she was no longer a party to the case and plaintiff's service of a summons and complaint upon her had no legal effect. On January 24, 2008, Dr. Martin served a notice of the trial court's final ruling. Plaintiff filed the present appeal.

DISCUSSION

I. Standard of Review/Principles of Appellate Review

"In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. [Citation.] When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service." (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.) In reviewing a trial court's ruling on a motion to quash service of summons, "[w]hen no conflict in the evidence exists . . . , the question of jurisdiction is purely one of law and [we] engage[] in an independent review of the record." (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449.)

In assessing plaintiff's appellate contentions, we apply fundamental principles of appellate review. Specifically, "it is settled that '[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court ( 1970) 2 Cal.3d 557, 564.)

" 'A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.' " (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)

It "is counsel's duty by argument and citation of authority to show in what respects rulings complained of are erroneous." (Wint v. Fidelity & Casualty Co. (1973) 9 Cal.3d 257, 265.) All litigants are bound by the rule that "[t]he reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel. Accordingly, every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 594, p. 627; see also Haley v. Casa Del Rey Homeowners Ass'n. (2007) 153 Cal.App.4th 863, 871.)

II. Plaintiff Has Not Shown Error in The Trial Court's Order Quashing Service

Plaintiff contends that the trial court erred by granting Dr. Martin's motion to quash service of the summons and complaint. As we understand her argument, she maintains Dr. Martin remained a defendant in the case at the time plaintiff served her on October 2, 2007, under Code of Civil Procedure section 904.1, subdivision (a)(3) by having the summons and complaint delivered to 700 Children's Drive in Columbus, Ohio.

We begin by evaluating the main premise of plaintiff's argument, namely, that the trial court did not dismiss Dr. Martin from her case at the May 18, 2007 case management conference, but rather "expressively [sic] ordered" plaintiff to serve Dr. Martin by publication. Neither plaintiff nor Dr. Martin provide us with a reporter's transcript of the May 18, 2007 case management conference hearing, and plaintiff's assertion is contradicted by the trial court's minute order, which recites that the parties stipulated to dismiss unserved, non-appearing and fictitiously named parties, a category into which Dr. Martin fell (plaintiff does not contend otherwise). In the absence of a reporter's transcript, we cannot rely on plaintiff's characterization of the proceedings, but must instead presume that the matters occurring at the hearing are properly reflected in the trial court's minute order. (See e.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141 [all intendments and presumptions are indulged to support the judgment on matters as to which the record is silent]; Rancho Santa Fe Ass'n v. Dolan-King (2004) 115 Cal.App.4th 28, 46 [where party fails to furnish an adequate record of the challenged proceedings, his claim on appeal must be resolved against him]; Estate of Fain (1999) 75 Cal.App.4th 973, 992.)

Plaintiff has the burden of affirmatively demonstrating error by providing an adequate record, and if she fails to do so, her claim on appeal must be resolved against her. (Rancho Santa Fe Ass'n v. Dolan-King, supra, 115 Cal.App.4th at p. 46.) "Obviously, . . . the presentation of a record which is clearly insufficient to enable a reviewing court to determine whether or not the trial court was correct in its ruling is not the equivalent of demonstrating that the trial court was in error. This is particularly true when it is noted that ' "[i]t is the action of the court that is presumed to be correct and this presumption obtains even though the reasons given may be bad." ' " (Conner v. Rose (1963) 219 Cal.App.2d 327, 329, italics omitted; see also Crummer v. Zalk (1967) 248 Cal.App.2d 794, 796.)

In her reply brief on appeal, plaintiff attaches a declaration from her father, Akhtar Qassimyar, purporting to state he was at the case management conference hearing at which the trial court ordered Dr. Martin to be served by publication, contrary to the court's minute order. We previously granted Dr. Martin's motion to strike plaintiff's first reply brief on grounds this declaration was not before the trial court and not part of the appellate record. Plaintiff refiled her reply brief with the declaration again attached, and we disregard it as in violation of California Rules of Court, rule 8.204, subdivision (d). Even if we were to consider Dr. Qassimyar's declaration, we observe he does not deny the trial court dismissed unserved or unnamed defendants at the hearing. Further, plaintiff has not challenged the trial court's June and July 2007 orders denying her requests for an order for publication. She has not explained in any meaningful way why the trial court erred in denying those requests, even assuming the trial court stated she could make an application to serve Dr. Martin by publication.

Dr. Martin points out that the trial court's May 18, 2007 dismissal order was authorized by the California Rules of Court,[3] and that plaintiff's recourse was to seek an order reinstating Dr. Martin as a named defendant in the action before making further service attempts. She maintains that once she was dismissed from the lawsuit, it was as if no action had been brought against her; she was no longer a party to the action and plaintiff's service of process was without legal effect. Dr. Martin also points out, as we have already concluded, there is no indication in the record that the trial court ordered plaintiff to attempt service by publication.

Plaintiff does not respond to these arguments. She simply reiterates that the trial court ordered her to serve Dr. Martin by publication, and "[b]ased on [that order], the Defendant was properly served on October 2, 2007." On plaintiff's showing, settled principles of appellate review require us to conclude she has not affirmatively shown error in the trial court's January 18, 2008 order quashing service of the summons and second amended complaint on Dr. Martin.

DISPOSITION

The order is affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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[1] By this court's April 29, 2008 order, plaintiff's appeal is limited to the trial court's January 18, 2008 order granting Dr. Martin's motion to quash service of summons. Based on this order, we do not address the issues raised by plaintiff in part II of her opening brief, encompassing pages 10 through 15.

[2] In the first order denying plaintiff's request, the clerk checked form boxes reading "Reasonable diligence not completed (those steps a reasonable person who truly desired to give notice would have taken under the circumstances). [] . . . [] Investigation of appropriate city and telephone directories, and assessor's office property indices situated near defendant's last known location." The clerk also instructed plaintiff to include an "order for publication" form. In the second order, the trial court ruled plaintiff's "search efforts are inadequate."

[3] California Rules of Court, rule 3.728 provides in part: "The case management conference must be conducted in the manner provided by local rule. The court must enter a case management conference order setting a schedule for subsequent proceedings and otherwise providing for the management of the case. The order may include appropriate provisions, such as: [] . . . [] (8) The dismissal or severance of unserved or not-appearing defendants from the action; . . . " California Rules of Court, rule 3.730 provides: "The order issued after the case management conference or review controls the subsequent course of the action or proceeding unless it is modified by a subsequent order."