Owens v. Superior Court of Los Angeles County

• Decision Date: 03 November 1959
• Citation: 52 Cal.2d 822,345 P.2d 921,78 A.L.R.2d 388
• Parties: , 78 A.L.R.2d 388 Jack OWENS, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, Jessie Thiele, Real Party in Interest. L. A. 25465.
• Court: California Supreme Court

Page 921

345 P.2d 921

52 Cal.2d 822, 78 A.L.R.2d 388

Jack OWENS, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Jessie Thiele, Real Party in Interest.

L. A. 25465.

Supreme Court of California, In Bank.

Nov. 3, 1959.

Parker, Stanbury, Reese & McGee and White McGee, Jr., 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.

TRAYNOR, Justice.

In January 1957 plaintiff (real party in interest herein) commenced an action against defendant (petitioner herein) to recover damages for injuries suffered from being bitten by defendant's dog. The cause of action arose in California when defendant was a resident here, but before the action was commenced, defendant became a permanent resident of Arizona. In September 1958 plaintiff secured an order for publication of summons pursuant to Code of Civil Procedure, § 412, and defendant was personally served with summons in Arizona on September 29th. (See Code Civ.Proc. § 413.) Defendant appeared specially and moved to quash the service of summons on the ground that it was ineffective to give the trial court jurisdiction over him. The court denied his motion, and he then filed this petition for a writ of prohibition to prevent further proceedings against him.

Since Code of Civil Procedure sections 416.1 to 416.3 were enacted in 1955, the appropriate remedy, when a trial court refuses to quash service of summons on the ground of lack of jurisdiction over the defendant, is a writ of mandate directing the court to enter its order quashing service. Hartford v. Superior Court, 47 Cal.2d 447, 451, 304 P.2d 1; Chesin v. Superior Court, 142 Cal.App.2d 360, 362, 298 P.2d 593; see, 1 Witkin, California Procedure, 1957 Supplement, p. 157. If the facts justify such relief it is immaterial that defendant has prayed for the wrong remedy, and we treat his petition as one for a writ of mandate. See, Boren v. State Personnel Board, 37 Cal.2d 634, 638, 234 P.2d 981; 3 Witkin, California Procedure, pp. 2568-2569.

Section 417 of the Code of Civil Procedure provides:

'Where jurisdiction is acquired over a person who is outside of this State by publication of summons in accordance with Sections 412 and 413, the court shall have the power to render a personal judgment against such person only if he was personally served with a copy of the summons and complaint, and was a resident of this State (a) at the time of the commencement of the action, or (b) at the time that the cause of action arose, or (c) at the time of service.'

Since defendant was a resident of Arizona at the time the action was commenced and at the time of service, jurisdiction under section 417 must be based on his residence here at the time the cause of action arose. (Subd. (b).) As used in section 417, resident means domiciliary (Smith v. Smith, 45 Cal.2d 235, 240, 288 P.2d 497), and it is not disputed that defendant was a California domiciliary at the time the cause of action arose. Defendant contends, however, that this fact is not sufficient to permit the state to acquire jurisdiction over him by personal service beyond its borders, and that, in any event, subdivision (b) is inapplicable in this case because it was enacted not only after the cause of action arose and after defendant changed his domicile to Arizona, but after the action was commenced.

In Allen v. Superior Court, 41 Cal.2d 306, 259 P.2d 905, we considered the effect of section 417 as it was originally enacted in 1951. We pointed out that as 'long provided by California law, a person who 'resides out of the State; or has departed from the State; or can not, after due diligence, be found within the State; or conceals himself to avoid the service of summons' is subject to service by publication. Code Civ.Proc., § 412. Under such circumstances, personal service outside the state is declared to be 'equivalent to publication'. Ibid, sec. 413. This statutory language is literally broad enough in its terms to authorize a personal judgment based on the extraterritorial service of process, either through 'publication' or 'personal service' on a defendant without the state. See 37 Cal.L.Rev 80, 84.' 41 Cal.2d at pages 309-310, 259 P.2d at page 907. We then reviewed Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, setting forth constitutional limitations on such jurisdiction and the subsequent cases, including Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, and International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, redefining such limitations. It was aginst this background that the Legislature enacted section 417, and we concluded that as 'so based on the broad authority of sections 412 and 413, section 417 is manifestly designed to restrict the power of the court if a personal judgment is to be entered. Thus its operation is made dependent on defendant's residence within the state either at the time of commencement of the action or time of service, and on his personal service with summons.' 41 Cal.2d at page 312, 259 P.2d at page 908. We held that personal jurisdiction could constitutionally be based on the defendant's domicile here at the time of the commencement of the action, stating:

'One main objection to service by publication on a person residing outside of the state is that due process requires fair notice. This was a consideration in Milliken v. Meyer, supra, 311 U.S. 457, 61 S.Ct. 339, upholding a personal judgment against a domiciliary based on the personal service of process while absent from the state. It was there said, at page 464 of 311 U.S., at page 343 of 61 S.Ct.: 'One * * * incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him.' The same principle on analogous reasoning applies where a domiciliary at the time of the commencement of the action thereafter changes his state of residence and is personally served with process in the latter state. As a citizen of the state wherein the action was commenced, he had certain responsibilities arising out of his relationship to that state by reason of domicile, one of which was amenability to suit therein. Such relationship and responsibility based on citizenship within the state are not terminated by his subsequent removal to another state, and he may be served with process pursuant to a method reasonably designed to give him notice of the proceedings brought against him in the courts of the state of his original domicile prior to his departure therefrom. We therefore conclude that section 417 satisfies the requirements of procedural due process, for no more certain provision for defendant's receipt of actual notice of the institution of litigation against him could be made than through the specified personal service of process. Milliken v. Meyer, supra, 311 U.S. 457, 463, 61 S.Ct. 339; see 40 Cal.L.Rev. 156.' 41 Cal.2d at pages 312-313, 259 P.2d at page 908.

Defendant contends that since amenability to suit is a responsibility growing out of domicile in the state, it ceases when such domicile ceases. In the Allen case we held, however, that it did not cease if the action was commenced before the defendant changed his domicile to another state. The responsibilities arising out of domicile and its existence at the time the action was commenced were held sufficient to secure jurisdiction by service outside the state although the defendant had changed his domicile before service was made. Such jurisdiction is justified by the plaintiff's interest in being able to conduct his litigation on the basis of the facts existing at the time he must act. He must file his action where jurisdiction over the defendant may be obtained. We agree with defendant, however, that the mere fact of past domicile in the state would not subject him to its jurisdiction indefinitely, for a past domicile having no relationship to the litigation at hand would not afford a reasonable basis for an assertion of jurisdiction.

Subdivision (b) of section 417 requires more than past domicile in the state. There must have been domicile here at the time the cause of action arose. Since jurisdiction so based rests neither on an existing relationship nor on the right of the plaintiff to rely on an existing relationship at the time he commences his action, it may be debatable whether such jurisdiction can constitutionally be assumed in the absence of some other relevant contacts with the state. If, for example, neither the plaintiff not the defendant were presently domiciled here and the cause of action arose out of the defendant's activities elsewhere, the fact standing alone that the defendant was domiciled here at the time the cause of action arose might be too tenuous a basis for asserting jurisdiction over him.

The Legislature, anticipating such doubtful cases, provided: 'If the amendment of Section 417 of the Code of Civil Procedure, enacted at the 1957 General Session of the Legislature, or any provision thereof, or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provisions of said Section 417 as they were in force immediately prior to the effective date of said amendment nor shall it affect other provisions or applications of said amendment which can be given effect without the invalid provision or application, and, to this end, and in each such respect, said amendment and its provisions are declared to be severable.' Stats. 1957, p. 3052, ch. 1674, § 2. Accordingly, even if domicile alone at the time the cause of action arose does not justify personal jurisdiction pursuant to sections 412 and 413, other contacts with the state either alone or together with such domicile may fully support...