Severn v. Adidas Sportschuhfabriken

• Decision Date: 01 August 1973
• Citation: 109 Cal.Rptr. 328,33 Cal. App. 3d 754
• Court: California Court of Appeals
• Parties: Clifford SEVERN, doing business as Clifford Severn Sporting Goods, Plaintiff and Appellant, v. ADIDAS SPORTSCHUHFABRIKEN, a German corporation, et al., Defendants and Respondents. Civ. 31658.

Page 328

109 Cal.Rptr. 328

33 Cal.App.3d 754

Clifford SEVERN, doing business as Clifford Severn Sporting Goods, Plaintiff and Appellant, v.ADIDAS SPORTSCHUHFABRIKEN, a German corporation, et al., Defendants and Respondents.

Civ. 31658.

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

Aug. 1, 1973.

Richard G. Mansfield, Palo Alto, for plaintiff and appellant.

Broderick, McNeil & Spencer by John R. Broderick, Torrance, for defendants and respondents.

ELKINGTON, Associate Justice.

PlaintiffClifford Severn, doing business as Clifford Severn Sporting Goods, commenced an action in California against the three defendant European corporations named in the caption and defendant Horst Dassler, a resident of France.It is conceded (at least no one contends otherwise on this appeal) that defendants had 'certain minimum contacts with (California) such that maintenance of the suit does not offend 'traditional notions of fair play and substantial justice. ''(SeeInternational Shoe Co. v. Washington(1945)326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95;Atkinson v. Superior Court, 49 Cal.2d 338, 345--346, 316 P.2d 960, cert. den., 357 U.S. 569, 78 S.Ct. 1381, 2 L.Ed.2d 1546.)California's courts thus had jurisdiction over the Subject matter of the action.(SeeCode Civ.Proc., § 410.10.)Defendant Horst Dassler was one of the persons described by Code of Civil Procedure section 416.10 as authorized to receive service of summons on behalf of the defendant corporations.

One of the defendant corporations had commenced an action in the United States District Court in Florida.While attending that state for the sole purpose of giving his deposition in the federal court litigation, Horst Dassler was personally served with summons in the California action on behalf of himself and the defendant corporations.

Thereafter, in the California action, the defendants moved to quash the service of summons made upon them in Florida.The motion was based upon the so-called 'immunity rule' which is stated by Corpus Juris Secundum as follows:

'Generally, witnesses in attendance on a court outside the territorial jurisdiction of their residence are immune from service of civil process while attending court and for a reasonable time before and after in going to, and returning from, court.'(72 C.J.S. Processp. 1112, § 80, subd. a.(1).)The rule is sometimes applicable to litigants, their attorneys, and others.

The superior court, on the basis of the immunity rule, entered an order granting defendants' motion.The instant appeal was taken by plaintiffClifford Severn from that order.

The immunity rule is of common law origin, going back at least to the reign of Henry VI, and to a time when process (summons) was given effect by the body attachment, or arrest, of the defendant.(See62 Am.Jur.2d, Process, § 136, p. 919;Powers v. Arkadelphia Lumber Co.(1896)61 Ark. 504, 33 S.W. 842, 843;Mertens v. McMahon(1933)334 Mo. 175, 66 S.W.2d 127, 131;Fisher v. Bouchelle, 134 W.Va. 333, 61 S.E.2d 305, 308;Wangler v. Harvey(1963)41 N.J. 277, 284, 196 A.2d 513.)Its initial purpose was clear; it was to prevent the disruption of judicial proceedings which would usually attend the arrest of an attending witness.And it was calculated to allay the witnesses' fear of such arrest, thus encouraging them to voluntarily appear and aid in the administration of justice.Originally the rule applied with equal force to nonresidents of the state, and residents of the state who were Nonresidents of the county from which the process issued or in which it was served.(SeeJacobson v. Hosmer(1889)76 Mich. 234, 42 N.W. 1110, 1111;Hicks v. Besuchet(1898)7 N.D. 429, 75 N.W. 793, 794--795;Lingemann v. Dehnke(1929)247 Mich. 597, 226 N.W. 259;Hixon v. Chamberlin(1926)116 Okl. 77, 243 P. 183, 184;Mertens v. McMahon, supra, 66 S.W.2d 127, 130;Cotton v. Frazier(1936)170 Tenn. 301, 95 S.W.2d 45, 47;Meyers v. Barlock (1937) i281 Mich. 629, 275 N.W. 656, 657;Tipton v. District Court of Fifth Judicial Dist.(1953)74 Idaho 65, 256 P.2d 787, 789.)

Through the years the immunity rule appears to have developed in a very haphazard fashion.Majority and minority rules, 'voluntary' and 'compulsory' tests, and other conflicting applications have appeared.(See generally, 62 Am.Jur.2dProcess, §§ 136--156, pp. 919--940;72 C.J.S.Process§§ 80--89, pp. 1112--1128.)This juridical confusion is pointed up in American Jurisprudence, Second, where discussing the rule's application in a criminal case, it is stated: 'Five views have been taken, namely: that a nonresident appearing voluntarily is immune, and that he is not immune; that a nonresident appearing compulsorily is immune, and that he is not immune; and that he is immune whether his appearance is considered as voluntary or compulsory.'(62 Am.Jur.2d, Process, § 152, p. 935.)A California reviewing court in 1930 found the conflicting authority on the subject 'of but little aid' in its resolution of a witness immunity problem.(Von Kesler v. Superior Court, 109 Cal.App. 89, 90, 292 P. 544.)

There has been much criticism of the immunity rule.

It is said: 'The immunity cases have in most instances been determined by a sentimentality singular in the law.The courts have often been preoccupied with concepts anachronistic at best with the result that the unfortunate (suitor seeking to serve summons) everywhere has been bearing a burden founded on neither good sense nor good law.( ) The time is surely at hand when the problem of immunity should be reexamined and more rational and liberal solutions, wherever they are needed, arrived at.'(Keeffe and Roscia (1947) 32 Cornell L. Quarterly, 471, 489.)In 1963the Supreme Court of New Jersey(Wangler v. Harvey, supra, 41 N.J. 277, 285, 196 A.2d 513, 517), observing that 'The doctrine of immunity moves in a direction wholly inconsistent with today's concept of justice,' refused to apply the rule.The court(at pp. 285--286, 196 A.2d at p. 518) stated: 'We conclude that the problem of immunity is best disposed of by the application of the doctrine of Forum non conveniens.Under this concept a court can prevent the imposition upon its jurisdiction of the trial of causes when it determines that for convenience of the litigants and witnesses, and in the interest of justice, the action should be instituted in another forum.'And in 1972an appellate court of Pennsylvania stated: 'In view of the ease of modern transportation and communication, in view of new procedural methods for obtaining trial evidence from witnesses who are out of the jurisdiction, and in view of expanding concepts for the exercise of jurisdiction, perhaps the time has come for the total elimination of the immunity rule, but that issue need not be decided at this time.'(Fns. omitted.)(Fahy v. Abattoir, 223 Pa.Super. 185, 299 A.2d 323, 325.)

The immunity rule was brought into clearer focus by the United States Supreme Court in Lamb v. Schmitt(1932)285 U.S. 222, 225--226, 52 S.Ct. 317, 318, 76 L.Ed. 720, in this manner:

'The general rule that witnesses, suitors, and their attorneys, while in attendance in connection with the conduct of one suit are immune from service of process in another, is founded, not upon the convenience of the individuals, but of the court itself. . . .As commonly stated and applied, it proceeds upon the ground that the due administration of justice requires that a court shall not permit interference with the progress of a cause pending before it, by the service of process in other suits, which would prevent, or the fear of which might tend to discourage, the voluntary attendance of those whose presence is necessary or convenient to the judicial administration in the pending litigation. . . .In Stewart v. Ramsay(242 U.S. 128, 37 S.Ct. 44, 46, 61 L.Ed. 192), the court said (p. 130), quoting from Parker v. Hotchkiss, Fed.Cas. 10,739:

"The privilege which is asserted here is the privilege of the court, rather than of the defendant.It is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify.'

'It follows that the privilege should not be enlarged beyond the reason upon which it is founded, and that it should be extended or withheld only as judicial necessities require. . . .Limitations of it on this basis have been not infrequently made because the attendance upon the trial of a cause, however vital to the personal interests of those concerned, was not for the purpose of facilitating the progress of the cause . . ., or because the service was made on one whose attendance was not voluntary, and hence had no tendency to interfere with judicial administration.'

California has adopted, and often applied, the rule as it was announced in Lamb v. Schmitt.(SeeVelkov v. Superior Court(1953)40 Cal.2d 289, 291--292, 253 P.2d 25;Gaines v. Superior Court(1961)196 Cal.App.2d 749, 753, 16 Cal.Rptr. 909;St. John v. Superior Court(1960)178 Cal.App.2d 794, 799, 3 Cal.Rptr. 535;Horn v. Superior Court(1949)94 Cal.App.2d 283, 285, 210 P.2d 518;and see alsoMattison v. Lichlyter(1958)162 Cal.App.2d 60, 64, 327 P.2d 599;Franklin v. Superior Court(1950)98 Cal.App.2d 292, 295, 220 P.2d 8;Murrey v. Murrey(1932)216 Cal. 707, 710--712, 16 P.2d 741, cert. den.289 U.S. 740, 53 S.Ct. 658, 77 L.Ed. 1487.)

From Lamb v. Schmitt and the California authority we have cited, three distinct principles are made apparent.

First, the immunity rule extends no Rights to the nonresident witness; it exists for the convenience and benefit of the court alone.

Secondly, the rule applies only where the nonresident witness Voluntarily enters the territorial jurisdiction of the judicial proceedings.This principle rests on the premise that the witness would be...