Turner v. Superior Court for Los Angeles County

• Decision Date: 22 July 1963
• Citation: 218 Cal.App.2d 468,32 Cal.Rptr. 717
• Court: California Court of Appeals Court of Appeals
• Parties: M. F. TURNER dba Turner Twin Co., Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent, and Lillian KASSUBA, Real Party in Interest. Civ. 27286.

Page 717

32 Cal.Rptr. 717

218 Cal.App.2d 468

M. F. TURNER dba Turner Twin Co., Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent, and Lillian KASSUBA, Real Party in Interest.

Civ. 27286.

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

July 22, 1963.

L. E. Schweiner and Allan S. Garber, Panorama City, for petitioner.

No appearance for respondent.

Ross, Price & McDaniel, Encino, for real party in interest.

PER CURIAM.

Petitioner, M. F. Turner, seeks a writ of mandate to compel the Superior Court of Los Angeles County to enter its order quashing service of summons on the ground that the court did not acquire in personam jurisdiction as the result of service of process on him in the State of Washington.

Lillian Kassuba, real party in interest herein, filed an action on June 14, 1962, in which she seeks damages for personal injuries allegedly suffered on September 18, 1961, as the result of a bowling ball falling off a ball return and holding rack at a bowling alley in Los Angeles County. She alleges negligence and breach of warranty. Joined as one of the defendants is petitioner herein, 'M. F. Turner, doing business under a Certificate of Assumed Business Name as Turner Twin,' as the manufacturer of the rack. Pursuant to affidavit of plaintiff's counsel, the court made its order for service by publication and petitioner was personally served in the State of Washington. The order states that it appears from the affidavit the 'the Defendant M. F. Turner, doing business under a Certificate of Assumed Business Name as Turner Twin (sued herein as Doe I) resides out of the State of California,' and 'that the place of residence of said Defendant is 8454 S. 228th Street, Kent, Washington or 1125 W. Shinn, Kent, Washington.'

M. F. Turner appeared apecially in the action and moved to quash service of summons. He supported his motion with his personal affidavit, the allegations of which are uncontradicted. No affidavit in opposition was filed.

The motion was denied, whereupon the within petition was filed pursuant to section 416.3, Code of Civil Procedure, and an alternative writ of mandate issued from this court. Real party in interest appears only by general demurrer, and the superior court, as respondent, has filed no separate return. Thus the factual allegations of the petition stand admitted. (See Confidential, Inc. v. Superior Court, 157 Cal.App.2d 75, 77, 320 P.2d 546.) We are of the view that the petition states facts sufficient to justify the issuance of the writ and the demurrer is therefore overruled.

In his affidavit in support of the motion to quash, petitioner alleges that he is a sole proprietor doing business under the firm name of Turner Twin Company situated at Kent, Washington. This allegation is not controverted in any manner and no claim is made that petitioner is a foreign corporation of foreign partnership. It is clear that petitioner was sued as an individual, the words 'doing business under a Certificate of Assumed Business Name as Turner Twin' being 'merely descriptio personae.' (See Thompson v. Palmer Corporation, 138 Cal.App.2d 387, 397, 291 P.2d 995.) It is also clear that service was made upon Turner pursuant to the provisions of sections 411(9), 412 and 413 of the Code of Civil Procedure, as a person who 'resides out of the state.' Unquestionably the relief sought against petitioner is a personal judgment. The admitted allegation of the petition is that petitioner 'did not and has never resided in California.' Section 417 of the Code of Civil Procedure therefore precludes the entry of a personal judgment against him.

The position of real party in interest, as indicated by the points and authorities filed in opposition to the motion in respondent court, and in support of the demurrer herein, is that 'the personal service on Turner in the state of Washington, combined with all of the other factors in this particular case, gives jurisdiction to the Court and it would not be a violation of any due process * * * as all of the tests as stated above are meand [sic].' The 'tests' to which real party has reference are the 'minimum contacts' requirement of due process, and the various 'factors' to be considered, as discussed and enumerated in Thomas v. J. C. Penney Co., 186 Cal.App.2d 223, 231, 8 Cal.Rptr. 721, and similar cases, when ascertaining whether a foreign corporation is 'doing business' in this state. The 'minimum contacts' as applied to a person outside the state were embodied in section 417 of the Code of Civil Procedure which 'as a clarifying statute, set forth the restrictive conditions under which this state would assert in personam jurisdiction, thereby leaving no doubt that this state was conforming in this regard with 'traditional notions of fair play and...