Owens v. Superior Court in and for County of Los Angeles

• Decision Date: 24 April 1959
• Citation: 338 P.2d 465
• Court: California Court of Appeals Court of Appeals
• Parties: Jack OWENS, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR THE COUNTY OF LOS ANGELES, Respondent. Jessie Thiele, Real Party in Interest. * Civ. 23745.

Page 465

338 P.2d 465

Jack OWENS, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR THE COUNTY OF LOS ANGELES, Respondent Jessie Thiele, Real Party in Interest. ^*

Civ. 23745.

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

April 24, 1959.

Hearing Granted June 18, 1959.

Parker, Stanbury, Reese & McGee, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, and Edward A. Nugent, Deputy County Counsel, Los Angeles, for respondent.

Charles F. Legeman, Long Beach, for real party in interest.

NOURSE, Justice pro tem.

By his petition, petitioner seeks a writ of prohibition to annul an order of the respondent court denying petitioner's motion to quash the service of summons upon him in an action brought against him in the respondent court by one Thiele. Petitioner has mistaken his remedy; he should have applied for a writ of mandate pursuant to the provisions of section 416.3 of the Code of Civil Procedure, but inasmuch as the facts alleged are sufficient to invoke the jurisdiction of this court to grant that writ we may treat his petition as one for such. Simmons v. Superior Court, 96 Cal.App.2d 119, 132-133, 214 P.2d 844, 19 A.L.R.2d 288; Mash v. Superior Court, 192 Cal. 258, 259, 219 P. 742.

The facts: On August 6, 1956, one Jessie Thiele, the real party in interest respondent, was bitten by a dog owned by petitioner on the premises of petitioner in the County of Los Angeles; on the 10th of January, 1957, she commenced an action against petitioner for damages in the superior court of that county. On September 29, 1958, an order for publication of summons having been made, petitioner was personally served with process in the State of Arizona.

At the time plaintiff's alleged cause of action arose, that is, on August 5, 1956, petitioner was a domiciliary of the County of Los Angeles, State of California. In December 1956, petitioner became domiciled in the State of Arizona and ever since that time has been a citizen and domiciliary of that state.

The petition and the return thereto present the following questions: First, is section 417 of the Code of Civil Procedure as amended in 1957 applicable to actions pending at the time of its enactment? Second, is one who was domiciled in this state at the time a cause of action arose against him, but who was not domiciled in this state at the time of the commencement of the action, subject to the process of the courts of this state served upon him at his foreign domicile?

At the time the cause of action arose against petitioner and at the time petitioner forsook his domicile in this state and established domicile in Arizona, the courts of this state could not, under the provisions of section 417 of the Code of Civil Procedure, obtain jurisdiction over the person of one absent from the state and domiciled in another state for the power of the courts to render a personal judgment was by the express provision of that section limited to those persons who were domiciled in the state either at the time of the commencement of the action or at the time of the service of process. Code Civ.Proc. § 417, as enacted in 1951. See Stats.1951, ch. 935, p. 2537.

In 1957 section 417 of the Code of Civil Procedure was amended so as to extend the power of the courts of this state to render personal judgments against one absent from the state but who was domiciled ¹ in the state at the time the cause of action arose provided that he was personally served with process. This amendment to the statute did not become effective until after petitioner had established his domicile in Arizona. Petitioner asserts that the amendment to section 417 may not be applied retrospectively so as to give it effect as against a defendant in an action pending at the time of its enactment and that if so construed it violates sections 13 and 16 of article I of the Constitution of this state and the Fourteenth Amendment to the Constitution of the United States. This contention cannot be sustained. The amendment to section 417 does not purport to give validity to a service of summons made upon a defendant in a pending action where service was accomplished prior to the enactment of the statute; it only gives the courts jurisdiction to enter a judgment where effective service is made upon the defendant after the effective date of the statute. It therefore operates not in retrospect but prospectively. By empowering the courts of this state to render a personal judgment against one domiciled in California at the time of the commission of a tort, the statute does not contravene any of petitioner's constitutional rights inasmuch as it does not impair the obligation of any contract, create any new obligation on his part, create any cause of action against him or deprive him of any defense on the merits that he might have to the action brought by the real party in interest. It is remedial in character and as petitioner had no vested right to have the jurisdiction of the court limited as it was by section 417 at the time he left the state, his rights were not affected by the amendment. Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483, at page 486; Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207, at page 1217; Casey v. Katz, 114 Cal.App.2d 391, 250 P.2d 291; Halbert v. Berlinger, 127 Cal.App.2d 6, 273 P.2d 274; Allen v. Superior Court, 41 Cal.2d 306, 259 P.2d 905.

Section 417 of the Code of Civil Procedure does not purport to make the process of the courts of this state effective outside the territorial limits of the state. Its only application is to cases where jurisdiction has been obtained pursuant to the provisions of sections 412 and 413 of the Code of Civil Procedure by an order for the publication of summons and the personal service of summons and complaint upon the defendant.

The question posed therefore is: Does the process of the courts of this state extend beyond its borders so as to give the courts of this state jurisdiction over the person of an absent natural person who is not domiciled in the state at the time of the commencement of the action, to the end that a personal judgment may be rendered against him on a cause of action arising out of a tort committed in this state? Before proceeding with the determination of the question posed, it is well that we state the limitations upon the scope of the question. It does not encompass the rights of this state to render a personal judgment against a foreign corporation 'doing business' in this state within the meaning of section 411, paragraph 2 of the Code of Civil Procedure as that section has been interpreted by the Supreme Court (Henry R. Jahn & Son, Inc. v. Superior Court, 49 Cal.2d 855, 323 P.2d 437), for it is evident that by the use of the words 'a person' in section 417 in connection with its reference to sections 412 and 413 of the Code of Civil Procedure the Legislature intended to include only domestic corporations and natural persons and did not intend to include foreign corporations as such corporations are not subject to service in the manner provided for by sections 412 and 413, but only in accordance with sections 6500-6504 of the Corporations Code (Code Civ.Proc. § 411, subd. 2). Nor are we concerned with actions arising out of the operation of an automobile upon the highways of this state where the defendant has, by accepting a certificate of ownership or registration of the motor vehicle involved in the accident or collision out of which the cause of action arose, or by accepting an operator's or chauffeur's license under the Vehicle Code of this state, consented to the service of process upon him outside of the state. See Vehicle Code, §§ 404.1 to 404.4; Chesin v. Superior Court, 142 Cal.App.2d 360, 298 P.2d 593.

In answering this question we are bound by the principles laid down by the United States Supreme Court in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, unless the principles there laid down by the Supreme Court have been altered or modified by later decisions of that court. In the case last cited, Mr. Justice Field speaking for the court said in part: 'But it was also contended in that court, [Circuit Court of United States] and is insisted upon here, that the judgment in the State Court against the plaintiff was void for want of personal service of process on him or of his appearance in the action. * * * If these positions are sound, the ruling of the Circuit Court as to the invalidity of that judgment must be sustained. * * * And that they are sound would seem to follow from two well established principles of public law respecting the jurisdiction of an independent State over persons and property. The several States of the Union are not, it is true, in every respect independent, many of the rights and powers which originally belonged to them being now vested in the government created by the Constitution. But, except as restrained and limited by that instrument, they possess and exercise the authority of independent States, and the principles of public law to which we have referred are applicable to them. One of these principles is, that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory. * * * The other principle of public law referred to follows from the one mentioned; that is, that so State can exercise direct jurisdiction and authority over persons or property without its territory. (Citations.) The several States are of equal dignity and authority and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists, as an elementary principle, that the laws of one State have no operation outside of its territory, except so far as is allowed by comity; and that no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions. 'Any exertion of authority of this sort beyond this limit *...