Lotus Car Limited v. Municipal Court, Southern JudicialDist., San Mateo County

• Decision Date: 19 June 1968
• Citation: 69 Cal.Rptr. 384,263 Cal.App.2d 264
• Court: California Court of Appeals Court of Appeals
• Parties: LOTUS CAR LTD., Petitioner and Appellant, v. MUNICIPAL COURT, SOUTHERN JUDICIAL DISTRICT, COUNTY OF SAN MATEO, State of California, Defendant and Respondent; Robert WARD, Real Party in Interest and Respondent. Civ. 25162.

Page 384

69 Cal.Rptr. 384

263 Cal.App.2d 264

LOTUS CAR LTD., Petitioner and Appellant, v. MUNICIPAL COURT, SOUTHERN JUDICIAL DISTRICT, COUNTY OF SAN MATEO, State of California, Defendant and Respondent Robert WARD, Real Party in Interest and Respondent.

Civ. 25162.

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

June 19, 1968.

Glad & Tuttle, by Robert Glenn White, Los Angeles, for appellant.

L. F. Haeberle, III, by Desmond O'Neill, San Francisco, for respondent.

MOLINARI, Presiding Justice.

This is an appeal from the judgment of the superior court denying a petition for a writ of mandate seeking to compel the municipal court to quash service of summons on petitioner. The real party in interest, Robert Ward, brought the original action in the municipal court against Rod Carbeth Enterprises, Inc. and petitioner, Lotus Car Ltd. (hereafter referred to as 'Lotus'), alleging negligent manufacture of a Lotus automobile and breach of warranty with respect thereto and asking property damages arising out of a collision against an embankment in this state. The municipal court ordered service of summons on Lotus by delivery of a copy of the summons to the Secretary of State pursuant to Corporations Code sections 3301--3304 and 6501, and the Office of the Secretary of State of California mailed a letter to Lotus in England informing it of said service of summons. After denial of its motion in the municipal court to quash the summons for lack of personal jurisdiction, Lotus petitioned for mandate in the superior court, and an alternative writ issued ordering the municipal court to show cause why the summons should not be quashed. After a hearing the superior court denied the peremptory writ and the instant appeal resulted. ¹

The petition for the writ of mandate alleges that Lotus is an English firm which has never qualified to do business in California, has never authorized anyone to accept service of process in California, and does not maintain any offices, warehouses, employees, agents, or sales personnel in this state; and that Lotus cars are sold exfactory and f.o.b. England, and price, title, and all risks pass at the factory or at the dockside in England, with the costs of shipment being borne by the person selling the automobile in this country.

The return of the real party in interest to the petition for mandate denies all of the foregoing allegations and alleges that Lotus Car Ltd. is listed in the yellow pages of the telephone directories for San Mateo, San Francisco, and Alameda Counties; that Bob Cole Imports in San Mateo County advertises sales, parts and accessories for Lotus cars; and that four named dealers or distributors are actively engaged in sales promotion and service of Lotus cars.

No replicastion to the return was filed by petitioner nor did it present any proof at the hearing. Moreover, no evidence was presented at the hearing by the real party in interest. The mandamus hearing consisted solely of the argument of counsel for petitioner and the real party in interest. ²

In a mandamus proceeding the court may hear the matter upon the papers filed and the argument when only a question of law is raised. (Code Civ.Proc., § 1094; ³ Lassen v. City of Alameda, 150 Cal.App.2d 44, 47, 309 P.2d 520; Baumgardner v. City of Hawthorne, 104 Cal.App.2d 512, 517, 231 P.2d 864; English v. City of Long Beach, 114 Cal.App.2d 311, 316, 250 P.2d 298.) When a question of fact is raised in the answer the petitioner has the right to countervail it by proof either in direct denial or by way of avoidance. (Sec. 1091; Lassen v. City of Alameda, supra; Kimberlin v. L.A. City High School Dist., 115 Cal.App.2d 459, 464, 252 P.2d 344; Day v. City of Los Angeles, 189 Cal.App.2d 415, 418, 11 Cal.Rptr. 325.) Accordingly, when a question of fact is raised by an answer to a petition for writ of mandamus the matter is heard in the same manner as any other trial. (See §§ 1089 and 1090; Lassen v. City of Alameda, supra; English v. City of Long Beach, supra.)

Under section 1091 a petitioner may file a replication denying the affirmative averments of the answer, or he may controvert them by proof presented by him at the hearing. (See McClatchy v. Matthews, 135 Cal. 274, 276, 67 P. 134; Fox v. workman, 6 Cal.App. 633, 635, 92 P. 742; Kimberlin v. L.A. City High School Dist., supra, 115 Cal.App.2d 459, 464, 252 P.2d 344; Day v. City of Los Angeles, supra, 189 Cal.App.2d 415, 418, 11 Cal.Rptr. 325.) Such affirmative allegations are accepted as true unless they are controverted by such pleading or proof. (McClatchy v. Matthews, supra; Kimberlin v. L.A. City High School Dist., supra; Day v. City of Los Angeles, supra.) Accordingly, if such affirmative averments of the answer are not so controverted and the case is submitted on the petition and answer alone, the uncontroverted allegations of the answer must be taken as true. (McClatchy v. Matthews, supra; Fox v. Workman, supra; Charles L. Donohoe Co. v. Superior Court etc., 79 Cal.App. 41, 44--45, 248 P. 1007; Brown v. Superior Court etc., 10 Cal.App.2d 365, 368, 52 P.2d 256; Friedland v. Superior Court etc., 67 Cal.App.2d 619, 623, 155 P.2d 90; Hunt v. Mayor & Council of City of Riverside, 31 Cal.2d 619, 623, 191 P.2d 426; Kimberlin v. L.A. City High School Dist., supra; Day v. City of Los Angeles, supra.)

In the present case petitioner introduced no evidence in support of the allegations of its petition, nor did it stipulate with the real party in interest as to the facts, but merely joined with the latter in submitting the matter on the pleadings and the oral argument. The real party in interest's return, by way of an answer under oath, admitted that the Secrtary of State of the State of California served petitioner in England by mail with a copy of the summons and complaint pursuant to Corporations Code sections 6501 and 6503 providing for service on foreign corporations; that petitioner made a motion in the municipal court to quash service of summons for lack of jurisdiction; and that such motion was denied. The remaining allegations of the petition were specifically denied in said return. Under the circumstances, the petition was like any other complaint in a civil action in that the allegations not admitted to be true could not be accepted as true. (See § 1089; Scott v. Superior Court etc., 83 Cal.App. 25, 30, 256 P. 603; W. R. Grace & Co. v. Cal. Emp. Com., 24 Cal.2d 720, 726, 151 P.2d 215; Baumgardner v. City of Hawthorne, supra, 104 Cal.App.2d 512, 515, 517, 231 P.2d 864.) Moreover, since petitioner did not controvert the affirmative allegations of the return by replication or proof, we must accept as true and as evidence the allegations that Lotus is listed in the yellow pages of the specified telephone directories and that the four named dealers or distributors are actively engaged in the sales promotion and service of Lotus cars. (See Kimberlin v. L.A. City High School Dist., supra, 115 Cal.App.2d 459, 464, 252 P.2d 344.) ⁴

In the light of the foregoing, the only evidence established by petitioner was that it was a foreign corporation and that it was served with process in a California action by the Secretary of State in a manner provided for service on a foreign corporation. On behalf of the real party in interest the only evidence adduced was that establishing that petitioner is listed in certain telephone directories in this state and that there are four dealers and distributors actively engaged in the sales and service of Lotus cars in this state. Accordingly, unless it can be said that under the state of this record no issue was tendered by the return to the petition and that the admitted allegations of the petition sufficed to entitle petitioner to the peremptory writ as a matter of law, the issues tendered by the respective pleadings had to be disposed of before the writ could be issued. (See Sterling Corporation v. Superior Court etc., 207 Cal. 370, 373, 278 P. 859.)

We must, preliminary, take note of certain applicable principles of law. In order for a foreign corporation to be amenable to service of process and the jurisdiction of the California courts, the corporation must be 'doing business in this state.' (Sec. 411, subd. 2; Corporations Code, §§ 6500--6504.) That term has, by the courts, been equated with such relevant minimum contacts with the state that the maintenance of the suit does not as a matter of due process offend traditional notions of fair play and substantial justice. (Internat. Shoe Co. v. State of Washington etc., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95; Henry R. Jahn & Son, Inc. v. Superior Court etc., 49 Cal.2d 855, 858, 323 P.2d 437; H. Liebes & Co. v. Erica Shoes, Inc., 237 Cal.App.2d 25, 27, 46 Cal.Rptr. 470; Harry Gill Co. v. Superior Court etc., 238 Cal.App.2d 666, 667, 48 Cal.Rptr. 93.) 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 form 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 and 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 etc., 53 Cal.2d 222, 225--226, 1 Cal.Rptr. 1, 3, 347 P.2d 1, 3; see H. Liebes & Co. v. Erica Shoes, Inc., supra.)

The general rule is that in a mandamus proceeding the burden is on the petitioner to prove every fact that is at the foundation of his proceeding excepting such allegations of the petition as are admitted by the answer. (Sterling Corporation v. Superior Court, supra, 207 Cal. at p. 373, 278 P. 859; Cothran v. Cook, 146 Cal. 468, 470--471, 80 P. 699; Hippin...