Kulko v. Superior Court

• Decision Date: 26 May 1977
• Docket Number: S.F. 23574
• Parties: , 564 P.2d 353 Ezra KULKO, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; Sharon Kulko HORN, Real Party in Interest.
• Court: California Supreme Court

Page 586

138 Cal.Rptr. 586

19 Cal.3d 514, 564 P.2d 353

Ezra KULKO, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent Sharon Kulko HORN, Real Party in Interest.

S.F. 23574.

Supreme Court of California, In Bank.

May 26, 1977.

Stern, Stotter & O'Brien and Lawrence H. Stotter, San Francisco, for petitioner.

No appearance for respondent.

Shapiro & Thorn and Suzie S. Thorn, San Francisco, for real party in interest.

Stephen Adams, San Francisco, as amicus curiae on behalf of real party in interest.

SULLIVAN, ^* Justice.

In this proceeding brought pursuant to section 418.10, subdivision (c), of the Code of Civil Procedure, petitioner Ezra Kulko seeks a writ of mandate directing respondent superior court to vacate its order denying petitioner's motion to quash service of summons for lack of jurisdiction in the underlying action, to establish a foreign judgment of divorce, and to grant said motion. We have concluded that the trial court correctly denied the motion. We deny the petition.

Viewing the evidence under the well-settled rules governing review of an order based on affidavits, ¹ we set forth the pertinent facts.

On September 25, 1972, after 13 years of married life, real party in interest Sharon Kulko (hereafter plaintiff) was granted a decree of divorce from petitioner Ezra Kulko (hereafter defendant) by the Civil Court of Port-au-Prince in the Republic of Haiti. There were two children born of the marriage: Darwin, born June 23, 1961, and Ilsa, born July 10, 1962. Under a written separation agreement, entered into by the parties in New York, their marital domicile, and tereafter attached to and made a part of the decree, it was agreed that during the period of the year when they were attending school Darwin and Ilsa should reside with and remain in the care, custody and control of defendant and that during the summer months and Christmas and Easter vacation weeks, they should reside with and remain in the care, custody and control of plaintiff. The agreement recited that defendant resided in New York and plaintiff in San Francisco. Defendant agreed to pay $3,000 annually for the support of the children during the time they resided with their mother in California.

During 1973, in accordance with the agreement, both children were sent to San Francisco and returned to New York. However, in December 1973, on the eve of her departure to spend the Christmas vacation with her mother, Ilsa informed her father that she wanted to live in California with her mother. Defendant thereupon purchased a one-way airplane ticket for her and she left with all her clothes. Throughout 1974 and 1975 Ilsa resided with her mother in California during the school year and with her father in New York during the summer. At the end of each summer, defendant provided her with an airplane ticket and she returned to live with her mother in San Francisco during the school year.

Meanwhile, throughout this period Darwin had continued to live with his father during the school year and his mother during the summer and on vacation. On January 10, 1976, Darwin telephoned plaintiff from New York, informing her that he was in trouble, that his father did not want him and that he wished to come to San Francisco to live with her. She sent him an airplane ticket and he immediately joined her in San Francisco.

Three weeks later, on February 5, 1976, plaintiff commenced the underlying action to establish the Haitian divorce as a judgment of this state, to award custody of the children to plaintiff and to receive increased child support from defendant. On the same day, the trial court franted plaintiff temporary custody of Darwin and Ilsa and restrained both parties form removing the children from plaintiff's home. Defendant, who had been served with summons by mail in New York, made a special appearance in California and moved for an order to quash service of summons (Code Civ.Proc., § 418.10, subd. (a)(1)) for lack of personal jurisdiction in that he was not a resident of California and did not have the requisite minimum contacts with California to satisfy due process requirements. Defendant supported his motion with two personal affidavits and plaintiff responded with an affidavit in opposition. The trial court denied the motion. This proceeding for a writ of mandate followed. (Code Civ.Proc., § 418.10, subd. (c).)

No contention is made before us that the trial court lacked jurisdiction to determine the Custody of Darwin and Ilsa. (See Civ.Code, § 5152; Titus v. Superior Court (1972) 23 Cal.App.3d 792, 797--798, 100 Cal.Rptr. 477; see Sampsell v. Superior Court (1948) 32 Cal.2d 763, 777--779, 197 P.2d 739; Rest.2d Conflict of Laws, § 79, pp. 237--240.) However, in order to impose upon defendant a personal liability to support the children, the court must secure personal jurisdiction over him. (Titus v. Superior Court, supra, 23 Cal.App.3d 792, 799, 100 Cal.Rptr. 477; Schoch v. Superior Court (1970) 11 Cal.App.3d 1200, 1207, 90 Cal.Rptr. 365. In order to secure personal jurisdiction over a nonresident defendant by service of summons by mail outside California, the trial court must have power to exercise such jurisdiction under section 410.10 of the Code of Civil Procedure which provides: "A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." This section includes all the recognized bases of judicial jurisdiction (Quattrone v. Superior Court (1975) 44 Cla.App.3d 296, 302, 118 Cal.Rptr. 548; Judicial Council comment to Code Civ.Proc., § 410.10, 14 W est's Ann.Code Civ.Proc. (1973 ed.) p. 459) and manifests an intent that the courts of California utilize all such bases, limited only by constitutional considerations. (Sibley v. Superior Court (1976) 16 Cal.3d 442, 445, 128 Cal.Rptr. 34, 546 P.2d 322.)

As we explained in Sibley, 'One of the recognized bases for jurisdiction in California arises when the defendant has caused an 'effect' in the state by an act or omission which occurs elsewhere.' (16 Cal.3d at p. 445, 128 Cal.Rptr. at p. 36, 546 P.2d at p. 324; see also Judd v. Superior Court (1976) 60 Cal.App.3d 38, 43, 131 Cal.Rptr. 246; Quattrone v. Superior Court, supra, 44 Cal.App.3d 296, 304--306, 118 Cal.Rptr. 548; Titus v. Superior Court, supra, 23 Cal,. app.3d 792, 801--802, 100 Cal.Rptr. 477.) It is at once apparent that the potential scope of this basis of jurisdiction is almost unlimited since any act or omission of a defendant anywhere in the world causing an 'effect' in California could theoretically subject him to In personam jurisdiction in California. If this theory of jurisdiction were carried out to its full exteremes, it is obvious that it would discourage those outside California from having any contacts or relations with persons living in our state. It has therefore been recognized that the mere causing of an effect in California is not necessarily sufficient to supply a constitutional basis for jurisdiction. 'A state has power to exercise judicial jurisdiction over an individual who causes effects in the state by an omission or act done elsewhere with respect to causes of action arising from these effects, unless the nature of the effects and of the individual's relationship to the state make the exercise of such jurisdiction unreasonable.' (Judicial Council comment to Code Civ.Proc., § 410.10, 14 West's Ann.Code Civ.Proc. (1973 ed.) p. 472.) In Sibley, after alluding to the principles set forth by the United States Supreme Court in International Shoe v. Washington (1945) 326 U.S. 310, 316--317, 66 S.Ct. 154, 90 L.Ed. 95, and in Hanson v. Denckla (1958) 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283, we attempted to distill the criteria for determining whether or not the exercise of jurisdiction over a nonresident on this basis was reasonable. We emphasized the importance of a showing on the record that the nonresident 'purposely availed himself of the privilege of conducting business in California or of the benefits and protections of California laws . . . (or) anticipated that he would derive any economic benefit as a result of his' act outside of California. (16 Cal.3d at p. 447, 128 Cal.Rptr. at p. 37, 546 P.2d at p. 325.) We conclude therefore that once it has been established that a nonresident defendant has caused an effect in this state by an act or omission elsewhere, the reasonableness of exercising personal jurisdiction over him on this basis may be determined according to the above criteria.

In the case at bench, we are called upon to apply the foregoing principles to an important area of family law, namely acts or omissions by nonresident parents outside of California which affect their children, and their relationship with their children, who are physically present in California. Initially we observe that probably no parental act more fully invokes the benefits and protections of California law than that by which a parent permits his minor child to live in California. The parent thereby avails himself of the total panoply of the state's laws, institutions and resources--its police and fire protection, its school system, its hospital services, its recreational facilities, its libraries and museums, to mention only a few. Therefore, we start with the premise that a nonresident parent who allows his minor child or children to reside in California has by that act purposely availed himself of the benefits and protections of the laws of California to such an extent that absent unusual circumstances or countervailing public policies such act would support personal jurisdiction over the nonresident parent for actions concerning the support of these children.

Two recent opinions by the Courts of Appeal have identified strong public policies affecting the reasonableness of asserting personal jurisdiction over nonresident parents of children physically present in the state. In ...