Tri-State Mfg. Co. v. Superior Court for Los Angeles County

• Decision Date: 30 January 1964
• Docket Number: TRI-STATE
• Citation: 224 Cal.App.2d 442,36 Cal.Rptr. 750
• Court: California Court of Appeals Court of Appeals
• Parties: MANUFACTURING COMPANY, a corporation, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent, SIERRA FIREWORKS COMPANY, a corporation, Real Party in Interest. Civ. 27822.

Page 750

36 Cal.Rptr. 750

224 Cal.App.2d 442

TRI-STATE MANUFACTURING COMPANY, a corporation, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent SIERRA FIREWORKS COMPANY, a corporation, Real Party in Interest.

Civ. 27822.

District Court of Appeal, Second District, Division 3, California.

Jan. 30, 1964.

Blase A. Bonpane, Los Angeles, for petitioner.

No appearance for respondent.

Moss, Lyon & Dunn, Los Angeles, for real party in interest.

SHINN, Presiding Justice.

Tri-State Manufacturing Company, an Ohio corporation, petitions for a writ of mandate requiring the Superior Court to annul its order for service of summons upon it by substituted service and to quash service made by delivering process to the Secretary of State. The summons was issued upon the cross-complaint of Sierra Fireworks Company, defendant in an action brought against it by Ronald Parsons.

The substituted service was attempted to be made upon Tri-State as a foreign corporation doing business in California pursuant to Section 411, Subdivision 2, Code of Civil Procedure and Section 6501 of the Corporations Code. The latter section authorizes service by delivery of process to the Secretary of State when it is shown by affidavit to the satisfaction of the court or judge that the corporation sought to be served is doing business in the state and that service cannot be made by personal delivery of process to a person authorized to be served as stated in Section 6500. Having filed a cross-complaint against Tri-State, Sierra, in applying for an order for substituted service, filed a document containing introductory statements as follows: 'State of California, County of Los Angeles, ss: Ronald L. Baker, being first duly sworn, deposes and says: That I am an attorney at law duly licensed to practice in the State of California and associated in the practice of law with the firm of Moss, Lyon & Dunn, attorneys of record in the within action for defendant and cross-complainant Sierra Fireworks Company. I have reviewed the file in this matter and I am personally familiar with the particulars therein contained.'

With respect to the matters necessary to be shown in order to obtain an order for substituted service, the statements of fact are prefaced by such as the following: 'From the file it appears,'--'The following facts are offered from the file,'--'It further appears from the file,'--'The file further reflects' etc. Presumably, the references are to the file in the office of the attorneys, although this is not so stated. Although the document was subscribed by Mr. Baker, it bears no jurat and no prepared form of jurat to be executed by an officer authorized to administer oaths. The statement contains no certificate or declaration under penalty of perjury as authorized by Section 2015.5 of the Code of Civil Procedure.

Tri-State appeared specially and made a motion for an order vacating the order for substituted service and quashing the purported service consisting of delivery of process to the Secretary of State. The ground of the motion was that there was an insufficient showing on behalf of Sierra to support an order for the substituted service. The motion was based upon an affidavit of Arthur Rozzi and all the papers and documents on file and upon evidence to be introduced upon the hearing. Affidavits were filed on behalf of the parties relating to the question whether Tri-State...