Josephson v. Superior Court of Los Angeles County

• Decision Date: 15 August 1963
• Citation: 219 Cal.App.2d 354,33 Cal.Rptr. 196
• Court: California Court of Appeals Court of Appeals
• Parties: Samuel JOSEPHSON, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Harry PINCH, Real Party in Interest. Civ. 27302.

Page 196

33 Cal.Rptr. 196

219 Cal.App.2d 354

Samuel JOSEPHSON, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Harry PINCH, Real Party in Interest.

Civ. 27302.

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

Aug. 15, 1963.

Abraham Berman, Beverly Hills, for petitioner.

No appearance for respondent.

David J. Sachs, Beverly Hills, for real party in interest.

PER CURIAM.

Petitioner, Samuel Josephson, seeks a writ of mandate pursuant to section 416.3 of the Code of Civil Procedure requiring respondent court to issue an order quashing the service of summons on the ground that the court did not acquire in personam jurisdiction as the result of service of process on him outside the State of California.

On June 14, 1962, an action upon a promissory note was filed by one Nana Maxtow, naming as defendants the petitioner herein and Harry Pinch, real party in interest herein. Petitioner has not been served as such defendant. Pinch filed his answer to the complaint, together with a cross-complaint against petitioner and one Herman Josephson seeking to recover monies allegedly due under an oral agreement. Pursuant to an affidavit of cross-complainant, the court made its order for service by publication and petitioner was personally served with a copy of the cross-complaint and summons thereon while vacationing in Hawaii. The order for publication states that it appears from the affidavit that cross-defendant 'resides out of the State of California' and that the residence of cross-defendant is 'the Stardust Hotel, Room 1489, Las Vegas Blvd. South, Las Vegas, Nevada.'

Pursuant to sections 416.1 and 417 of the Code of Civil Procedure, petitioner filed a timely notice of motion to quash service of summons, supported by his affidavit, in which he alleges that he is not now and has not been a resident of the State of California; that he is now, and for the past eleven years has been, a resident of the State of Nevada; that he is a registered voter in Nevada, owns real estate there, and owns vehicles registered in that state; that he owns no real estate in California and does not own any vehicles registered in this state; that he is engaged in business in Nevada and is not engaged in business in California. He then states that '[t]he transaction complained of in the alleged cross-complaint for damages served on me in Superior Court action No. 798278 involves a transaction which occurred wholly in the State of Nevada. The contract was to be performed in the State of Nevada. The land lies in the State of Nevada. All obligations under the contract were to be performed in the State of Nevada.'

On February 26, 1963, the motion was denied, the minute order of that date stating: 'The appearance on the motion to quash is not made specially, but generally by Abraham Berman [counsel for petitioner]. Appearance fee has been paid. The arguments made by affidavits on the merits in connection with the motion reinforce this conclusion.'

Petitioner, on March 12, 1963, filed a motion to reconsider the motion to quash. An additional affidavit of petitioner and one of his counsel were filed. In the latter it is alleged: 'The court in its Minute Order dated February 26, 1963, makes note of the fact that an appearance fee was paid. The clerk in the filing department demanded the fee and refused to receive the motion to quash without fee being paid.' It contains other statements by which affiant attempts to show that statements in petitioner's original affidavit did not go to the merits of the case, but were intended to show only the lack of any contacts or activity of petitioner within the State of California and 'to negate the premise that the fact situation complained of has any nexus with California. This nexus being in the conflicts of law sense, i. e., facts arising in California such as a contract entered here, to be performed here, or prior agreement to submit any disputes for arbitration or adjudication here, or a prior granting of consent to be served by serving a California official such as the Secretary of State in exchange for doing business here, or an official of the State of California for the privilege of using California highways.' Petitioner, in his affidavit, again alleges that he is not a resident of California and that he was not doing business in this state; that he is a resident of Nevada and was served with process while vacationing in the State of Hawaii. Reference is made to his original affidavit 'elaborating on these points.' The notice states that it 'will be based upon the attached affidavits, points and authorities submitted herewith, and upon all the files, papers, and proceedings herein.'

After reconsideration, the court denied the motion to quash on March 28, 1963. Within ten days after service of notice of such denial, the within petition for a writ of mandate was filed.

In resisting the issuance of the writ, it is the initial contention of real party in interest that the application was not timely made in this court in that it was not filed within ten days after service of notice of the ruling made February 26, 1963, upon the original motion. Section 416.3 of the Code of Civil Procedure provides: 'If a motion of a defendant or cross-defendant to quash service of summons, as provided in Section 416.1 of this code, is denied by the court, he may, before pleading, and within 10 days after service upon him of written notice of the order of the court denying the motion, or within such additional time not exceeding 20 days as the court may allow, petition an appropriate appellate court for a writ of mandate directed to the court wherein the action or proceeding is pending requiring the entry of its order quashing the service of summons. * * *' Notice of the denial of petitioner's original motion was served upon him, through his attorney, by mail on February 28, 1963. He had 10 days within which to petition this court for a writ of mandate but, instead of following this procedure, petitioner filed a motion for reconsideration. Insofar as the first order of denial is concerned, the petition for mandate under this section was not timely made; however, as to the second order, made upon the renewed application, it was timely.

Real party in interest contends that the trial court was without jurisdiction to reconsider the matter or to make its second order. In reliance upon the general rule that the court has no power to set aside or amend judicial error except under appropriate statutory procedure, it is argued that reconsideration is limited to rulings on demurrers, or to a motion under the specific provisions of sections 473 and 663 of the Code of Civil Procedure.

We are of the view that the second motion was in effect a renewal of the motion to quash,--made with the permission of the court. ¹ It was made upon the same grounds as the original motion and upon substantially the same showing. Leave to renew a motion is addressed to the sound discretion of the court. 'In all ordinary motions, where the jurisdiction is not limited by statute, it is in the discretionary power of the court or judge hearing and denying a motion to grant leave for its renewal, and this discretion will not be interfered with, except in cases of palpable abuse. [Citation.] And the leave to renew a motion may be given after the original motion is denied. [Citation.]' (Hitchcock v. McElrath, 69 Cal. 634, 635, 11 P. 487.) And in Johnston v. Brown, 115 Cal. 694, page 697, 47 P. 686, page 687, involving a second application for a change of the place of trial, it is stated: 'The court was not precluded from making the order by reason of a former application having been denied. The doctrine of res judicata is not applicable to motions in a pending action. [Citations.] A previous denial of the same motion may be a sufficient reason for the court to refuse to entertain it again. Code Civ.Proc., § 182. But this is a matter which is addressed to its discretion, and it will be presumed to have properly exercised its discretion if it permits the motion to be presented a second time.' See also, Mission Film Corp. v. Chadwick Pictures Corp., 207 Cal. 386, 389, 278 P. 855; Tiffany Productions, Inc. v. Superior Court, 131 Cal.App. 729, 734-735, 22 P.2d 275.

Successive applications upon the same statement of facts are to be discouraged (see Connell v. Bowes, 49 Cal.App.2d 542, 544, 122 P.2d 71), and a court will ordinarily refuse to consider repeated motions supported by substantially the same showing as the one denied (Mission Film Corp. v. Chadwick Pictures Corp., supra, 207 Cal. p. 389, 287 P. at page 856; Yellow Mfg. Acceptance Corp. v. Stoddard, 93 Cal.App.2d 301, 305-306, 208 P.2d 1040; City & County of San Francisco v. Muller, 177 Cal.App.2d 600, 603-604, 2 Cal.Rptr. 383; 2 Witkin, California Procedure, § 12, p. 1649); however, it obviously is not obliged to do so (Code Civ.Proc. § 1008).

Section 1008, Code of Civil Procedure, ² sets forth the requirements of a renewal of motion, from which it is apparent that the court has the power to prevent vexatious and repeated applications on the same point. However, the requirements of this section do not go to the jurisdiction of the court to entertain the second motion. (Andersen v. Superior Court, 187 Cal. 95, 102, 200 P. 963; Pacific States Corp. v. Grant, 87 Cal.App. 108, 111, 261 P. 1100; Tiffany Productions, Inc. v. Superior Court, supra, 131 Cal.App. 735, 22 P.2d at page 277; Moore v. Moore, 133 Cal.App.2d 56, 60, 283 P.2d 338; Radlinski v. Superior Court, 186 Cal.App.2d 821, 823, 9 Cal.Rptr. 73; 34 Cal.Jur.2d § 14, p. 518; 1 Witkin, California Procedure, § 252, pp. 771-772; 2 Witkin, California Procedure, § 12, p. 1649.)

The basic rule is stated in Andersen v. Superior Court, supra, in which, in reliance upon former section 182, Code of Civil Procedure, the forerunner of present section 1008, the appellant had contended that the court had no...