Davis v. Superior Court
| Decision Date | 01 October 1976 |
| Docket Number | ROWAN-GIGUETT,R |
| Citation | 133 Cal.Rptr. 115,62 Cal.App.3d 484 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Hugh J. DAVIS et al., Petitioners, v. SUPERIOR COURT, SAN FRANCISCO, Respondent; Bridget DENSBY, a minor, etc., et al., Real Parties in Interest. Thad J. EARL, M.D., et al., Petitioners, v. SUPERIOR COURT, SANTA CLARA, Respondents; Juditheal Party in Interest. Hugh J. DAVIS et al., Petitioners, v. SUPERIOR COURT, CONTRA COSTA, Respondents; Patricia FORD et al., Real Parties in Interest. Thad J. EARL, M.D. and Irwin S. Lerner, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SANTA CLARA, Respondent; Karen WERNER, Real Party in Interest. Civ. 39165--39167 and 39360. |
Landels, Ripley & Diamond, San Francisco, for petitioners.
Conklin, Davids & Friedman, San Francisco, Di Giorgio, Davis & Klein (A. C.), Bakersfield, for real parties in interest.
Each of the petitions before us seeks writ of mandate to require the trial court to quash service of summons upon some of the petitioners. (Code Civ. Proc., § 481.10, subd. (c).) Each petitioner is among the defendants named in each of the basic actions (in some counties more than one) from which this dispute arises. These basic actions all seek damages for personal injuries allegedly resulting from defects in an intrauterine contraceptive device known as the Dalkon Shield. No petitioner is a resident of California and none was personally served in this state. In the San Francisco and Contra Costa County cases, the motion to quash was granted as to some defendants but denied as to all three petitioners (Lerner, Earl and Davis). In the two proceedings arising in Santa Clara County, the motion was granted as to Davis, but denied as to Lerner and Earl. The several grants of relief are not before us, since those orders are directly appealable (1 Witkin, Cal.Proc., Jurisdiction (2d Ed., 1970) § 133, subd. (5)) and are not the subject of any petition here.
By statute '(a) court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.' (Code Civ.Proc., § 410.10.) The Senate Judiciary Committee in recommending adoption of this section declared the comments of the Judicial Council (1969 Report of the Judicial Council, p. 27, et seq.; 14 West's Ann.Code Civ.Proc., p. 459, et seq.) reflect its intent in approving the measure.
Petitioner Davis, a doctor of medicine and resident of Maryland, originated the idea of the Dalkon Shield. He discussed his idea with petitioner Lerner, an engineer and a resident of Connecticut. The two designed the device. Lerner patented it in his own name. The Dalkon Corporation was formed, with Lerner and Davis as major shareholders. In April 1970, petitioner Earl, a doctor of medicine who resides in Arizona, acquired a 7 1/2 6C interest in the corporation. In June 1970, the patent of the shield was assigned to A. H. Robins Co., a codefendant in all the basic actions, but not a movant to quash. All three petitioners received payment, proportionate to their interests in Dalkon Corporation, for this assignment of the patent. In addition, they shared 10% Royalty payments on sales of the shield by Robins. Robins contracted to employ all three petitioners as consultants for substantial annual salaries over varying periods of years.
We have little difficulty in finding petitioners Lerner and Earl to be subject to California jurisdiction in these actions for damages for personal injuries sustained through use of the shield. Lerner was employed by Robins as a consultant from 1970 to 1974. There is evidence that he assisted Earl in the operation of 'technical booths' all over the United States to promote this shield. In September 1970, he attended the San Francisco convention of the American Academy of General Practice and operated a commercial exhibit in which the shield was advertised to physicians and order forms were available. In 1971, he attended the San Francisco convention of the American College of Obstetricians and Gynecologists. He asserts that he was merely a 'visitor and observer' and 'in no way connected with the Dalkon Shield or A. H. Robins Co.' But, as the San Francisco court found, 'it is difficult to understand why an engineer would attend (such a convention) unless he was there in his 'consulting' capacity or because of his self-interest arising from his royalty percentage.'
Petitioner Earl was employed by Robins from 1970 to 1973 as a consultant at $30,000 per year. He received a share of the payment by Robins for the patent, and a share of royalties from gross sales by that firm. He developed a film on the shield which was assigned to Robins for use in promoting the shield to the medical community generally. At the 1970 convention of the American Academy of General Practice, in San Francisco, he conducted a 'scientific booth' where he showed the film and spoke to doctors about the advantages of the shield. Although Earl did not accept orders at that booth, Lerner accepted them at the nearby 'technical booth.' In 1972, Earl conducted a 'scientific display' at the American Medical Association convention in San Francisco. Although he says he did not accept orders for the shield at this time, a technical booth at the same convention did accept orders.
'A state has power to exercise judicial jurisdiction over an individual who has done * * * an act in the state with respect to any cause of action in tort arising from such act, * * *' (1969 Judicial Council Report, Supra, Appendix II (p. 77), and authorities there cited; National Life of Florida Corp. v. Superior Court, 21 Cal.App.3d 281, 98 Cal.Rptr. 435.) Petitioner Earl on two occasions, and petitioner Lerner on at least one, came to California to conduct promotional campaigns for sale of the shield. These activities were directed to doctors, many obviously from this state, who are essential intermediaries in the sale and insertion of the shield. The promotion thus was designed to effect sales at the conventions and, more importantly, to build a continuing California market for the shield. It is clear that such conduct within California, performed by two men who sought financial benefits from sales of the shield, constitutes 'an act...
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