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Anandan v. Singapore Airlines Ltd.4/5/2005
pril 16, 2004, because it is relevant to the issue of prejudicial error, as we explain later in our discussion, and because it was part of the Superior Court file.
We liberally construe the notice of appeal to have been taken from the minute order, rather than the trial court's oral pronouncement, as stated in the notice of appeal. (See Cal. Rules of Court, rules 1(a)(2) and 2(d)(2).) Appellants suggest that their appeal is timely, although filed more than 60 days after February 26, 2004, because it was filed less than 180 days later, and they were never served with a notice of entry of the order or with a copy of it. (See Cal. Rules of Court, rule 2(a).) We agree. There is no proof of service printed on or attached to the minute order of February 26, 2004, and the Superior Court's docket does not indicate that notice of the order was given. Respondents do not claim to have served a notice of entry of the order, and they do not claim that the appeal is untimely. We therefore conclude that the notice of appeal was timely.
2. Timeliness of Motions
Appellants contend that the trial court erred in refusing to strike the motions as untimely. Before discussing appellants' contention, we shall review Code of Civil Procedure section 430.90, upon which appellants rely, as well as related provisions of the Code of Civil Procedure.
Section 430.90 provides that a defendant who has not appeared in the action must file a response to the complaint within 30 days from the trial court's receipt of the case upon a remand from federal court. Subdivision (a)(1) of that section permits a defendant to avoid making a general appearance, by following the procedure set forth in section 418.10, which provides that a defendant may make a motion to dismiss on grounds of inconvenient forum prior to filing an answer and without being deemed to have made a general appearance, if done within the time allowed by law to respond to the complaint, and shall have specified times to file an answer if the motion is denied. Otherwise, the defendant must file an answer, or in lieu or in addition to filing an answer, the defendant may demur or file a motion to strike within the 30 days, but only "if: (i) an answer was not filed in the federal court, and (ii) a demurrer or motion to strike raising the same or similar issues was not filed and ruled upon by the original court prior to the removal of the action to federal court or was not filed and ruled upon in federal court prior to the remand." (§ 430.90, subd. (a)(2)(B).)
Any demurrer or motion to strike made pursuant to section 418.10 (that is, prior to the time within which a defendant must respond to a complaint) must include forum non conveniens issues, or those issues are waived. (§ 418.10, subd. (e)(3).) Section 418.10 does not apply, however, to a forum non conveniens motion made by a defendant who has already made a general appearance. (§ 410.30, subd. (b).)
Appellants' contention that the motions were untimely is premised upon section 430.90, subdivision (a)(2), which permits a demurrer or motion to strike, if filed within "30 days from the day the original court receives the case on remand." Appellants' reasoning appears to be that section 430.90, subdivision (a)(2)(B), should be read together with 418.10, subdivision (e)(3), to come up with a rule that a forum non conveniens motion must be made within 30 days of remand, or it is waived.
We decline to adopt appellants' contorted construction of the statute, which merely provides a defendant with the means to avoid making a general appearance without fear of entry of default, and provides a time after which the plaintiff may have default entered. There has bee
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