Forbes v. Cameron Petroleums, Inc.

• Decision Date: 27 July 1978
• Citation: Forbes v. Cameron Petroleums, Inc., 147 Cal.Rptr. 766, 83 Cal.App.3d 257 (Cal. App. 1978)
• Parties: James FORBES, Plaintiff and Appellant, v. CAMERON PETROLEUMS, INC., and Harold B. Brett, Defendants and Respondents. Civ. 52503.
• Court: California Court of Appeals

Page 766

147 Cal.Rptr. 766

83 Cal.App.3d 257

James FORBES, Plaintiff and Appellant, v. CAMERON PETROLEUMS, INC., and Harold B. Brett, Defendants and Respondents.

Civ. 52503.

Court of Appeal, Second District, Division 3, California.

July 27, 1978.

John E. Crooks and Philip R. Linsley, Sherman Oaks, for plaintiff and appellant.

Thomas R. Ulmer, Orange, for defendants and respondents.

POTTER, Associate Justice.

Plaintiff James Forbes appeals from an order of the Superior Court quashing the service of the summons upon defendants Cameron Petroleums, Inc., and Harold B. Brett, and, in the alternative (in the event that the quashing of service of summons be held erroneous), granting defendants' motion to stay proceedings on the grounds of inconvenient forum.

The order also vacated the default of defendants entered September 1, 1976, "on the grounds of excusable neglect by defendants." ¹

The complaint was for breach of contract for money had and received, and for an accounting. It was based upon a contract in writing between plaintiff's assignor "JKJ ENERGY SALES CORPORATION, a body corporate having its executive offices in the City of Encino, California" and defendant "CAMERON PETROLEUMS INC., a body corporate with registered offices in the City of Greensburg, Indiana." The contract provided for the drilling of test wells on lands leased by JKJ in Indiana. The liability of defendant Brett was predicated on his alter ego relationship with CAMERON.

Purported service of the complaint was made in California on July 27, 1976, by personally serving defendant Brett in his individual capacity and as president of Cameron.

No responsive pleading was filed by September 1, 1976, and on that date plaintiff filed a request to enter default of both defendants, and their defaults were entered. Thereafter, on September 3, 1976, defendants filed a "NOTICE OF DEMURRER TO COMPLAINT" and a supporting memorandum of points and authorities. The notice stated that the demurrer would "be made on the grounds, each and every, as follows:

"1. That the court has no jurisdiction of the subject of the cause of action alleged in the pleading; ( ² )

"2. The pleading is uncertain;

"3. It cannot be ascertained from the pleading whether the assignment to plaintiff is written or oral."

Plaintiff's response to the demurrer was a motion "to strike said demurrer from the files" upon the ground that after defendants' default was entered they "were not entitled to file any pleading." At a hearing on September 17, 1976, the court "made its order striking defendants' demurrer from the files on the grounds that default of defendants had been entered on September 1, 1976."

Defendants' "NOTICE OF MOTION TO VACATE DEFAULT AND QUASH SERVICE OF SUMMONS OR IN THE ALTERNATIVE TO STAY OR DISMISS ACTION ON THE GROUNDS OF INCONVENIENT FORUM" was filed February 11, 1977. It was supported by affidavits advancing defendants' claims that (1) the neglect to file a responsive pleading was excusable, (2) defendant Brett "was fraudulently induced to enter the State of California in order to be served with the complaint in this action," and (3) California was an inconvenient forum for the trial of the action.

Defendants' memorandum in support of the motions invoked the court's power under Code of Civil Procedure section 473 and its equity jurisdiction to relieve from extrinsic mistake in support of the motion to vacate the default. The motion to quash service was supported by the court's "authority to refuse to exercise judicial jurisdiction if the basis of that jurisdiction, i. e., the physical presence of the (defendant) in this state, has been obtained by fraud or unlawful force." (Titus v. Superior Court (1972) 23 Cal.App.3d 792, 798, 100 Cal.Rptr. 477, 482.)

In support of the forum non conveniens motion, defendants relied upon Code of Civil Procedure section 418.10, subdivision (a), subsection (2), authorizing the court "(t)o stay or dismiss the action on the ground of inconvenient forum" when so moved by a defendant who has not made a general appearance.

Plaintiff filed opposition to all three motions. Declarations filed in behalf of plaintiff contradicted those of defendants relating to all issues. Plaintiff also contended that defendant's demurrer filed September 3, 1976, constituted a general appearance waiving any objection to the court's personal jurisdiction over defendants, and that the forum non conveniens motion was foreclosed by the rule that " '(a) determination that a plaintiff is domiciled here would ordinarily preclude granting the defendant's motion for dismissal on the ground of Forum non conveniens.' " (Thomson v. Continental Ins. Co. (1967) 66 Cal.2d 738, 742, 59 Cal.Rptr. 101, 104, 427 P.2d 765, 768.) Defendants, in turn, filed supplemental affidavits rebutting plaintiff's factual showing.

Defendants' motions were heard May 5, 1977, and on that date the court made its minute order granting (1) defendants' motion to vacate the default, (2) defendants' motion to quash service of summons, and (3) in the alternative, a stay of further prosecution of the action. Defendants were ordered to prepare a written order. The written order recited findings as follows and granted relief as above stated:

"1. There has been excusable neglect on the part of defendants in not timely responding to the complaint on file;

"2. Defendants have not made a general appearance in this proceeding;

"3. Plaintiff had fraudulently enticed defendant Harold B. Brett to enter in California in order to serve him with the complaint and summons in this action. Therefore, this court refuses to exercise judicial jurisdiction over the defendants in this action since the basis of that jurisdiction has been obtained by fraud;

"4. In the interest of substantial justice this action should not be held in California; rather the case should be heard in the State of Indiana."

Contentions

Plaintiff attacks the order on narrow grounds. The order quashing service of summons is assailed on the sole ground that defendants' demurrer constituted a general appearance. Plaintiff does not question the sufficiency of the evidence to support the court's finding that plaintiff fraudulently enticed defendant Harold Brett to enter California to serve him with a complaint and summons. The alternative order granting defendants' motion to stay proceedings on the ground of inconvenient forum is attacked generally as an abuse of discretion.

Discussion

In view of the order striking it from the files, we conclude that defendants' demurrer was not a general appearance; consequently, the finding that plaintiff fraudulently enticed defendant Harold Brett to enter California in order to serve him with a complaint fully supports the court's order quashing service. Such being the case, it is inappropriate to review the court's exercise of discretion in applying the doctrine of forum non conveniens.

The Order Striking the Demurrer Eliminated It As An Appearance

It is clear that defendants' demurrer was a legal nullity when it was filed. Since defendants' default had already been entered, they had no standing to file any responsive pleading without first obtaining relief from the default. In Christerson v. French (1919) 180 Cal. 523, 525, 182 P. 27, 28, our Supreme Court said:

"It follows, then, that the filing of the demurrer and the motion to strike out after the default had been entered did not suspend the ministerial duty of the clerk to enter the judgment. The clerk was bound to receive and file these pleadings, although They could have no legal effect." (Italics added.)

Christerson is cited in Jones v. Moers (1928) 91 Cal.App. 65, 69-70, 266 P. 821, 822, wherein it was said:

"Upon the failure of the defendant to answer the complaint within the time allowed by law, and upon the entry of default, in the absence of fraud, the right of the defendant to participate in the litigation is terminated, and the subsequent filing of an answer or demurrer on his part is unauthorized and void, unless upon proceedings duly had, the default is first set aside. . . .

In the present case the filing of an answer in behalf of the defendant after his default had been duly entered, Added nothing to his legal rights, nor altered his status in the case. Upon the entry of his default the defendant was out of court, and the filing of his answer was unauthorized and void. (Christerson v. French, 180 Cal. 523, 182 P. 27; Title Insurance etc. Co. v. King etc. Co., 162 Cal. 44, 120 P. 1066; W. H. Marston Co. v. Kochritz, 80 Cal.App. 352, 251 P. 959; Gray v. Hall (Cal.App.), 254 P. 911.) " (Italics added.)

Other appellate court decisions announcing the same rule are the decision of this division in Remainders, Inc. v. Superior Court (1961) 192 Cal.App.2d 411, 412, 13 Cal.Rptr. 221, and A & B Metal Products v. MacArthur Properties, Inc. (1970) 11 Cal.App.3d 642, 647, 89 Cal.Rptr. 873.

None of the above cases, however, considered the effect of the nullity of a demurrer or answer filed after entry of default upon the status of such a pleading as a general appearance conferring personal jurisdiction. A cogent argument can be made that a pleading which "could have no legal effect" (Christerson v. French, supra, 180 Cal. at p. 525, 182 P. 27) should not constitute a general appearance. The origin of the rule that a defendant who asks for any relief which can only be given to a party in a pending case thereby submits to the jurisdiction of the court is found in the early decision of our Supreme Court in Douglass v. Pac. M.S.S. Co. (1854) 4 Cal. 304, 306, ³ where the court said:

"It is clear that a party ought not to be Allowed the benefit of any proceeding, unless he also assumes the responsibility of it. His appearance for one purpose, is a good appearance to the action." (Italics added.)

A demurrer which the defendant has no standing to interpose and which the court may not consider cannot possibly benefit the defendant. With the...