The Joint Motion
The purpose of the Joint Motion is to enable the moving parties to pursue their settlement in principle while preserving Mr. Coleman's objections to in personam jurisdiction in the event the Commission disapproves the settlement. The Joint Motion states that what the parties seek is a kind of "stand still" ruling with respect to jurisdiction that would freeze the relevant jurisdictional facts as they stood at the time of the PHC. They also argue that such an approach is consistent with the Commission's settlement rules:
"The institution of settlement proceedings in a case before the Commission invokes procedures of a different character and places the matter on a different track than the primary litigation. Bringing a settlement before the Commission halts the ongoing litigation as to the settling parties and invokes the special procedures for dealing with settlements under Article 13.5 of the Rules of Practice and Procedure. Hence, pursuing a settlement does not involve the need to `preclude a defendant from litigating an action to a conclusion and later, if dissatisfied, urging lack of personal jurisdiction over him.' (Cf. Smith v. Smith (1982) 135 Cal.App.3d 543, 548; emphasis added.)
"Conversely, the Commission's rejection of a settlement under Rule 51.7 would place the parties in the same position they were in prior to the commencement of settlement proceedings, unless the Commission attempted to continue the settlement phase by taking one of the courses of action identified in Rules 51.7(1), (2) or (3). Here, the moving parties merely request clarification that if the settlement is ultimately rejected by the Commission, the litigation will be returned to the status quo ante, in which Coleman has properly raised his colorable objection to personal jurisdiction. Such a ruling would allow the Commission to consider whether it wishes to approve the settlement agreed to in principle by the parties." (Joint Motion, p. 6.)
While maintaining that the case law under the Code of Civil Procedure (CCP) on what constitutes a general appearance and the waiver of objections to personal jurisdiction "has little relevance to the Commission's construction of its own rules," the moving parties also note that there is "some arguable support" for their position in such cases as Ikerd v. Warren T. Merrill & Sons (1992) 9 Cal.App.4th 1833, Berard Construction Co. v. Municipal Court (1975) 49 Cal.App.3d 710, and Smith v. Smith (1982) 135 Cal.App.3d 543.
