Shoei Kako Co. v. Superior Court

• Decision Date: 06 August 1973
• Citation: 33 Cal.App.3d 808,109 Cal.Rptr. 402
• Court: California Court of Appeals Court of Appeals
• Parties: SHOEI KAKO CO., LTD., Petitioner, v. SUPERIOR COURT of the State of California FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent; Edward MacISAAC, Real Party in Interest. Civ. 33051.

Page 402

109 Cal.Rptr. 402

33 Cal.App.3d 808

SHOEI KAKO CO., LTD., Petitioner, v. SUPERIOR COURT of the State of California FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent;

Edward MacISAAC, Real Party in Interest.

Civ. 33051.

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

Aug. 6, 1973.

Hearing Denied Oct. 3, 1973.

Baker, Ancel & Redmond, Los Angeles, for petitioner.

Boccardo, Blum, Lull, Niland, Teerline & Bell, San Jose, for real party in interest.

SIMS, Associate Justice.

By its petition for writ of mandate, the petitioner, a Japanese corporation, seeks review of an order of the trial court which denied its motion to quash the service of summons purportedly effected by mailing a copy of the summons and complaint to its head office in Japan. (See Code Civ.Proc., § 418.10.) An alternative writ was issued and after argument the matter was submitted on the petition, the exhibits filed therewith, and the memorandum of points and authorities in opposition to the petition, and the return filed by real party in interest.

Petitioner contends: (1) that the record fails to show facts which would render it subject to a judgment in personam in this state; that the trial court is without jurisdiction to render a judgment against it (2) because the method used to perfect service of process was not in accordance with an international treaty governing service abroad of judicial and extrajudicial documents, and (3) because the notice given by the service of process failed to comply with due process of law because it was not written in the language of the country to which it was mailed. A review of these contentions reveals that they are without merit. The alternative writ must be discharged and the petition for a peremptory writ denied.

The complaint filed by real party in interest on August 20, 1971 reflects that this action arises out of a collision on December 24, 1970, between a motorcycle operated by real party in interest, the plaintiff in the action below and so referred to herein, and a vehicle allegedly negligently operated by the defendant Shirley Ann Hardesty; that at the time of the accident the plaintiff was wearing a Dias Safety Helmet with a designated serial number; and that he received severe personal injuries as a proximate result of the collision and of the failure of the helmet, for which he seeks to recover $1,500,000 general damages and special damages and loss of earnings according to proof. The first cause of action is directed at the negligence of those who designed, manufactured, constructed, tested, repaired, sold, retailed, wholesaled, and distributed the safety helmet. The second cause of action is directed at the same defendants for breach of an implied warranty that the safety helmet was fit for the use for which it was designed and intended. The third cause of action, against the same defendants, is predicated upon the theory of product liability. The fourth cause of action is based upon the negligence of the driver and those responsible for the operation of the other vehicle; and the fifth cause of action is grounded upon the concurrent negligence of all defendants.

Among the named defendants is D. S. Kogaco Company, Ltd., a corporation.

The petitioner, Shoei Kako Co., Ltd., according to the declaration filed on its behalf, is a corporation organized and existing under and in accordance with the laws of Japan with its principal and main office in Tokyo. Admittedly petitioner assumed the responsibility for all debts and obligations of D. S. Kagako Co., Ltd., a corporation formerly organized and existing under and in accordance with the laws of Japan, with its principal and main office in Tokyo because the latter corporation was merged into the petitioning corporation after December 24, 1970.

I

Section 410.10 of the Code of Civil Procedure 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.' The basic underlying rule is found in International Shoe Co. v. State of Washington (1945) 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 wherein the court referred to 'sufficient contacts or ties with the state of the forum to make it reasonable and just according to our traditional conception of fair play and substantial justice to permit the state to enforce the obligations which (the nonresident) has incurred there.' (326 U.S. at p. 320, 66 S.Ct. at p. 160.) In recommending the passage of section 410.10 to the Legislature, the Judicial Council followed the format found in the Restatement of Conflict of Laws 2d (1971). (See 1969 Report of the Judicial Council of California, Appendix II, at p. 68, p. 8591; and cf. Rest.2d, Conflict of Laws, §§ 41--42.)

In an effort to meet the criteria so enunciated petitioner filed an affidavit, dated February 20, 1973, of an employee, who was also an employee of the merged corporation, in which he alleges that neither corporation has done business in, has qualified to do business in, has made or contracted to perform any contracts in, has made or contracted to supply services or things in, has maintained any employees, agents or other representatives in, had any interest in any real property in, has caused any tortious injury by act or omission in, has contracted to insure any person, property or risk located in, or has designated any agent for purposes of service of process within the State of California, or any states of the United States or its territories or possessions. He acknowledges that the sole and only contact within the State of California and any state of the United States or its territories of either corporation is an equitable interest of the corporations in one California corporation.

The plaintiff relies upon proffered evidence which he claims shows that the petitioner's predecessor was subject to the jurisdiction of this state because it manufactured a defective helmet which caused an effect, the injuries suffered by plaintiff, within this state. In Buckeye Boiler Co. v. Superior Court (1969) 71 Cal.2d 893, 80 Cal.Rptr. 113, 458 P.2d 57 the court stated: 'A manufacturer whose products pass through the hands of one or more middlemen before reaching their ultimate users cannot disclaim responsibility for the total distribution pattern of the products. If the manufacturer sells its products in circumstances such that it knows or should reasonably anticipate that they will ultimately be resold in a particular state, it should be held to have purposefully availed itself of the market for its products in that state.' (71 Cal.2d at p. 902, 80 Cal.Rptr. at p. 120, 458 P.2d at p. 64.) It continued: 'When a plaintiff is allegedly injured in the forum state by a defect in a nonresident manufacturer's product, the question whether that product's use or purchase was an isolated instance, or part of a continuous course of business in the state is relevant but not necessarily decisive in determining the existence or nonexistence of the requisite jurisdictional activity. (Citations.) Only if isolated use of purchase conclusively establishes lack of foreseeability that the product will enter the state is the isolation necessarily fatal to jurisdiction over the manufacturer; in that event there is a manifest lack of purposeful activity on the part of the manufacturer.' (Id., p. 904, 80 Cal.Rptr. p. 121, 458 P.2d p. 65. See also Hall. v. University of Nevada (1972) 8 Cal.3d 522, 525, 503 P.2d 1363; Martin v. Detroit Lions, Inc. (1973) 32 Cal.App.3d 472, 475--476, 108 Cal.Rptr. 23; Ault v. Dinner for Two, Inc. (1972) 27 Cal.App.3d 145, 151, 103 Cal.Rptr. 572; Agalite-Bronson Co. v. K. G. Limited (1969) 270 Cal.App.2d 308, 315--316, 75 Cal.Rptr. 527; Duple Motor Bodies, Ltd. v. Hollingsworth (9th Cir. 1969) 417 F.2d 231, 233--236; Yoder v. Yamaha International Corporation (E.D.Pa.1971) 331 F.Supp. 1084, 1086--1087; Gill v. Fairchild Hiller Corp. (D.N.H.1970) 312 F.Supp. 916, 917--918; Omstead v. Brader Heaters, Inc. (1971) 5 Wash.App. 258, 270--272, 487 P.2d 234, 242--243, aff'd. and opn. adopted (1972) 80 Wash.2d 720, 497 P.2d 1310; Certisimo v. Heidelberg Company (1972) 122 N.J.Super. 1, 13, 298 A.2d 298, 305; and Annotation, Products Liability (1968) 19 A.L.R.3d 13. Cf. Fisher Governor Co. v. Superior Court (1959) 53 Cal.2d 222, 226, 1 Cal.Rptr. 1, 347 P.2d 1; Vibration Isolation Products, Inc. v. American Nat. Rubber Co. (1972) 23 Cal.App.3d 480, 483--484, 100 Cal.Rptr. 269; and Tiffany Records, Inc. v. M. B. Krupp Distributors, Inc. (1969) 276 Cal.App.2d 610, 615--619, 81 Cal.Rptr. 320.)

In order to trace that the helmet worn by plaintiff was one manufactured by petitioner's predecessor for general distribution in the United States, plaintiff presented a copy of a form of declaration purportedly executed by an officer of a testing corporation in which it is recited that the testing corporation's serial number found in the helmet involved 'was issued to D. S. Kagaku Co., Ltd. on January 22, 1969.' Although the signed original of this declaration does not appear in the record, petitioner apparently does not seriously question the accuracy of that declaration.

Plaintiff also relies upon written answers to interrogatories filed by other parties to the action. On March 5, 1973, three days after argument on petitioner's motion but prior to the submission and decision of the matter, plaintiff filed the answers to interrogatories of the defendant Newman Company a corporation from which it appears that certain helmets which that company sold to defendant Gemco Co. prior to plaintiff's accident were imported from Sunrise & Co., a trading company which bought the helmets from D. S. Kagaku (now Shoei Kako Co.) Ltd., named as manufacturer in the answers, and that other helmets were purchased from Standard Sales, a Los Angeles importer, nad from Nelson Sales, a Kansas City, Kansas importer. In the return filed with this court plaintiff has included...