Judd v. Superior Court

• Decision Date: 13 July 1976
• Citation: 131 Cal.Rptr. 246,60 Cal.App.3d 38
• Court: California Court of Appeals Court of Appeals
• Parties: Eugene C. JUDD, Petitioner, v. SUPERIOR COURT, COUNTY OF ORANGE, Respondent; Helene M. JUDD, Real Party in Interest. Civ. 15805.

Page 246

131 Cal.Rptr. 246

60 Cal.App.3d 38

Eugene C. JUDD, Petitioner, v. SUPERIOR COURT, COUNTY OF ORANGE, Respondent Helene M. JUDD, Real Party in Interest.

Civ. 15805.

Court of Appeal, Fourth District, Division 2, California.

July 13, 1976.

Donnenfeld & Brent and Jason G. Brent, Los Angeles, for petitioner.

Hopwood & Johnson and John A. Hopwood, Newport Beach, for real party in interest.

OPINION

FOGG, ^* Associate Justice.

Petitioner originally petitioned this court for a peremptory writ of mandate commanding respondent court to grant his motion to quash the service of summons upon him on the ground of lack of jurisdiction. On March 10, 1976, we denied without opinion his petition. On April 8, 1976, the Supreme Court granted his petition for hearing ¹ and retransferred the matter to this court for hearing, with directions to issue an alternative writ of mandate. On April 16, 1976, we issued the alternative writ of mandate and ordered respondent to show cause why a peremptory writ should not issue.

The question presented is whether the trial court erred in determining that it had personal jurisdiction over the petitioner. We conclude that the constitutional basis for personal jurisdiction did not exist and that the trial court erred in denying the motion to quash service of summons insofar as spousal and child support were concerned.

We find most of the facts are not in dispute in reviewing the record before us. Real party in interest, Helene M. Judd (hereinafter referred to as Helene), filed a petition on May 13, 1975 in respondent court seeking a dissolution of her marriage to petitioner, Eugene C. Judd (hereinafter referred to as Eugene), and requesting custody of the minor children of said marriage, spousal and child support and attorney's fees and costs. On January 9, 1976, a special appearance was made by petitioner's counsel for the sole purpose of making a motion to quash the service of summons by mail on petitioner on September 10, 1975 (Code Civ.Proc., § 415.40) on the ground of lack of jurisdiction over petitioner. That motion was denied on February 11, 1976, and this proceeding was commenced.

Helene and Eugene were married in New York on December 22, 1950 and resided in New York or Connecticut until their separation on October 20, 1964. A written separation agreement was entered into between them respecting their rights and duties to each other and to the four minor children of their marriage. Both were represented by attorneys. On November 18, 1964, Helene obtained a Mexican divorce decree from Eugene which approved and incorporated the terms and conditions of the separation agreement. Subsequently Helene moved to California with the children of whom she had custody. Eugene never resided in California. He remarried and presently resides with his new wife on the East Coast. For approximately 12 years Eugene sent Helene the spousal and child support payments provided for in their separation agreement. Within the last 10 years Eugene visited his children in California no more than three times, such visits lasting two or three days.

Additionally, counsel for real party in his Points and Authorities in Opposition to Writ of Mandate alleges on information and belief that during her residence in California petitioner has done business in this state under the name of Judd-Falk, an employment agency, and has clients in California, has advertised in California, and has made business trips here. Attached to this points and a authorities as Exhibit 'A' is a purported Xerox copy of an advertisement appearing in 'Advertising Age' for March 29, 1976 and reading in part as follows: 'Our job, as management consultants, is to find qualified account management media, market research and sales promotion people for the blue-chip agencies listed above. If your strength is in consumer packaged-goods marketing, you should know our president: Gene Judd. Contact him at Judd-Falk, 124 East 37th Street, New York, N.Y. 10016, Telephone: (212) 686--1500.'

In response to petitioner's contention that the trial court did not have jurisdiction in personam over him, real party asserts that the Orange County Superior Court properly determined it had jurisdiction over petitioner in that: (1) he did conduct business in California; (2) he has done acts elsewhere that have caused an effect in this state by telephone calls and correspondence to Helene and his minor children and by making payments of various sums of money to her; (3) he has done acts in California by visiting the minor children here; and (4) Helene is a resident of Orange County and has a right to have her marriage dissolved and appropriate orders made by the Superior Court of Orange County.

Petitioner makes no contention that he was not properly served out of state with process under section 415.40 of the Code of Civil Procedure. He does, however, deny that the State of California may exercise personal jurisdiction over him.

In order to obtain personal jurisdiction over a nonresident by service outside this state, it is necessary that the trial court 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.' (See: Titus v. Superior Court, 23 Cal.App.3d 792, 100 Cal.Prtr. 477.) In the comment of the Judicial Council following this code section in West's Annotated Code of Civil Procedure is found an interesting and informative discussion of the various bases of judical jurisdiction over individuals which have been recognized. They are also listed in the Restatement Second of Conflict of Laws, section 27, page 120 as: (1) presence; (2) domicile; (3) residence; (4) nationality or citizenship; (5) consent; (6) appearance; (7) doing business in the state; (8) doing an act in the state; (9) causing an effect in the state by an act done elsewhere; (10) ownership, use or possession of a thing in this state; and (11) other relationships to the state which make the exercise of judicial jurisdiction reasonable. Mr. Witkin observes that these recognized bases of judicial jurisdiction have, in essence, been incorporated in section 410.10 of the Code of Civil Procedure. (1 Witkin, Cal. Procedure (2d ed.1970) § 77, pp. 601--602.)

Real party seeks to apply numbers 7, 8 and 9 of the foregoing bases to the facts of the instant case to support the exercise of personal jurisdiction by the respondent court. Therefore, we have reviewed the facts disclosed by the record before us in determining whether there was a proper basis for exercising personal jurisdiction. In doing so, we are cognizant of the rule that real party has the burden of proof of facts establishing personal jurisdiction in respondent court despite proper service of process outside the state. (See: Arnesen v. Raymond Lee Organization, Inc., 31 Cal.App.3d 991, 995, 107 Cal.Rptr. 744.)

All of the facts relied upon by real party in her opposition to the petition to establish that petitioner did do business in California are alleged by her attorney upon information and belief. The following decisions all hold that affidavits or declarations made upon information and belief as to the facts purporting to be stated therein are...