H. Liebes & Co. v. Erica Shoes, Inc.

• Decision Date: 07 September 1965
• Court: California Court of Appeals Court of Appeals
• Parties: H. LIEBES & COMPANY, Cross-Complainant and Appellant, v. ERICA SHOES, INC., Cross-Defendant and Respondent. Civ. 22356.

Page 470

46 Cal.Rptr. 470

237 Cal.App.2d 25

H. LIEBES & COMPANY, Cross-Complainant and Appellant, v. ERICA SHOES, INC., Cross-Defendant and Respondent.

Civ. 22356.

District Court of Appeal, First District, Division 1, California.

Sept. 7, 1965.

Worthington, Fields & Worthington, R. W. Fields, James M. Kennedy, San Francisco, for appellant.

Mullen & Filippi, Donald C. Meaney, San Francisco, for respondent.

MOLINARI, Acting Presiding Justice.

Cross-complainant, H. Liebes & Co., appeals from an order granting the motion of cross-defendant, Erica Shoes, Inc., to quash service of summons upon Erica on the ground of lack of jurisdiction. ¹ The sole issue presented on this appeal is whether Erica Shoes, Inc., although a foreign corporation, is amenable to service of process and to the jurisdiction of the California courts.

Under subdivision 2 of Code of Civil Procedure section 411, which prescribes the means by which service of summons must be made as against a foreign corporation, it is requisite, in order that a court may acquire jurisdiction over such a corporation, that the corporation be 'doing business in this State. * * *' The meaning of this term as applied to jurisdiction to maintain litigation is stated in Henry R. Jahn & Son v. Superior Court, 49 Cal.2d 855, 858, 323 P.2d 437, 439, as follows: 'That term is a descriptive one that the courts have equated with such minimum contacts with the state 'that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'' International Shoe Co. v. [State of] Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95. Whatever limitation it imposes is equivalent to that of the due process clause. "[D]oing business' within the meaning of section 411 of the Code of Civil Procedure is synonymous with the power of the state to subject foreign corporations to local process.' Eclipse Fuel etc. Co. v. Superior Court, 148 Cal.App.2d 736, 738, 307 P.2d 739, 741.' (See also Empire Steel Corp. of Texas, Inc. v. Superior Court, 56 Cal.2d 823, 831, 17 Cal.Rptr. 150, 366 P.2d 502.) 'Whether a foreign corporation is doing business within this state so that jurisdiction may be constitutionally exercised depends upon the circumstances of each individual case. [Citations.] * * * [T]he analysis is concerned with weighing the various relevant 'contacts' by the foreign corporation within the state attempting to exercise jurisdiction. [Citation.]' (Empire Steel Corp. of Texas, Inc. v. Superior Court, supra, p. 831, 17 Cal.Rptr. p. 155, 366 P.2d p. 507.) In determining whether jurisdiction may constitutionally be assumed the following factors have received attention by our courts: 'The interest of the state in providing a forum for its residents [citation] or in regulating the business involved [citation]; the relative availability of evidence and the burden of defense and prosecution in one place rather than another [citations]; the ease of access to an alternative forum [citation]; the avoidance of multiplicity of suits an conflicting adjudications [citations]; and the extent to which the cause of action arose out of defendant's local activities [citations] * * *.' (Fisher Governor Co. v. Superior Court, 53 Cal.2d 222, 225-226, 1 Cal.Rptr. 1, 3, 347 P.2d 1, 3.)

In the instant case, an action for damages based on breach of warranty was filed on August 4, 1961 by plaintiff, Angela Arriola, who alleged in her complaint that she fell and sustained permanent injury to her left wrist as a result of a defective pair of shoes which she was wearing, and which had been manufactured by Erica and sold to her by Liebes. Erica, named as a defendant, was subsequently served through the Secretary of State under the provisions of Corporations Code sections 6500-6504. However, pursuant to motion by Erica, the trial court entered its order quashing service of summons on the ground of lack of jurisdiction. On March 1, 1962 A. Keran Shoe Co., Inc., a California corporation which runs the shoe concession at Liebes, and which was also served as a defendant in this action, filed a cross-complaint naming Erica as a cross-defendant. Erica was again served through the Secretary of State and again Erica's motion to quash service was granted. On January 7, 1964, after having obtained leave of court, Liebes filed its cross-complaint against Keran and Erica. Purported service was made on Erica through the Secretary of State, and Erica again moved to quash this service, which motion was granted on June 19, 1964. It is this June 19, 1964 order against Liebes which is the subject of this appeal.

The last-mentioned motion was supported by the declaration of Erica's president, Saul Litvack. Liebes' opposition to the motion consisted of a declaration by Robert D. Rodden, vice-president of Keran. Litvack's declaration states that Erica is a corporation engaged in the manufacture and sale of special custom-made shoes; that it was organized and exists under and by virtue of the laws of the State of New York; and that its offices are in New York City. As to Erica's contacts with the State of California, the declaration states that the corporation has neither bank accounts nor real or personal property in this state; that it maintains no offices or warehouses or salesmen in California; that it has no stock in this state and no merchandise is sent to California either on consignment or with title retained; and that it does not carry on promotion work or advertising in California. The declaration further states that Erica's products are sold in California by only a few retailers, who place orders with Litvack personally when he comes to California, which is usually once or twice a year; that Erica's shoes are subsequently sold outright by Erica to these retailers; and finally that the retailers have no right to act for Erica.

According to Rodden's declaration, Erica shoes are sold in California in at least three retail stores, Liebes and Frank More Shoe Shop in San Francisco, and Joseph's in Beverly Hills. Two or three times a year either Litvack or Henry Balin of Erica would come to California with a sample line of shoes to promote and sell their products. On each visit the Erica representative would spend two or three days in the Bay Area and would then go to Southern California to solicit further sales. Rodden's declaration further states that on each visit to California by an Erica representative, Keran would order Erica shoes, and that it purchases shoes from Erica in substantial shipments. Finally the declaration states that when Litvaek or Balin came to the Keran concession at Liebes, they would give a 'Pep talk' to the retail salesmen employed by Keran; that on at least one occasion the Erica representative offered a bonus of $100 to the salesman who sold the largest number of Erica shoes in a given period; and that Keran was authorized and did list 'Erica' in the yellow section of the San Francisco telephone book under "Shoes--Retail."

The record is unclear as to whether the trial judge who heard the subject motion read or considered these declarations in view of the colloquy between court and counsel at the hearing of the motion which indicates that the court was under the impression that it was constrained to grant the motion because another judge had granted the two prior motions. The record discloses, however, that the trial court was apprised by counsel at the hearing of the substance of the respective declarations. Moreover, the order granting the motion to quash recites that it is based upon the 'declarations filed herein * * *.' Under the circumstances, and in the absence of any affirmative showing to the contrary, the trial court is presumed to have performed its duty and to have acted regularly. (Code Civ.Proc. § 1963, subd. 15; Hosner v. Skelly, 72 Cal.App.2d 457, 462, 164 P.2d 573; Newman v. Los Angeles Transit Lines, 120 Cal.App.2d 685, 691, 262 P.2d 95; People v. Jones, 207 Cal.App.2d 415, 426, 24 Cal.Rptr. 601.) Accordingly, we shall consider that the trial court, in making its order, considered both declarations, as it was required to do, since it is upon these declarations that the propriety of the order appealed from depends.

Erica asserts that the scope of our review is limited to determining whether the trial court abused its discretion. This contention is incorrect. The extent of our review depends, in the first instance, upon whether the evidence presented by the subject declarations is conflicting. If it is, an appellate court will not disturb the implied findings of fact made by the trial court in support of the order, the applicable rule being that it will be presumed that the court found every fact necessary to support the order justified by the evidence. (Griffith Co. v. San Diego Col. for Women, 45 Cal.2d 501, 507-508, 289 P.2d 476, 47 A.L.R.2d 1349; Emsco Pavement, etc., Corp. v. City of Los Angeles, 176 Cal.App.2d 760, 766, 1 Cal.Rptr. 814.) Accordingly, insofar as the trial court has passed on the weight of the evidence or the credibility of witnesses, its implied findings are conclusive; and where an order is made on affidavits involving a decision of a question of fact, the appellate court is bound by the same rule as where oral testimony is presented for review. (Griffith Co. v. San Diego Col. for Women, supra, 45 Cal.2d p. 508, 289 P.2d 476; Emsco Pavement etc. Corp. v. City of Los Angeles, supra, 176 Cal.App.2d p. 766, 1 Cal.Rptr. 814.) Where, on the other hand, the evidence is not conflicting, the reviewing court is not bound by the findings based thereon and the determination is a matter of law. (Cosper v. Smith & Wesson Arms Co., 53 Cal.2d 77, 81, 346 P.2d 409; Sims v. National Engineering Co., 221 Cal.App.2d 511, 513, 34 Cal.Rptr. 537; Emsco Pavement etc. Corp. v. City of Los Angeles, supra, 176 Cal.App.2d p. 766, 1 Cal.Rptr. 814.)

Adverting to the instant case in the light of the foregoing principles, we are...