Velkov v. Superior Court in and for Los Angeles County

Decision Date20 February 1953
Citation35 A.L.R.2d 1348,40 Cal.2d 289,253 P.2d 25
CourtCalifornia Supreme Court
Parties, 35 A.L.R.2d 1348 . L. A. 22582. Supreme Court of California, in Bank

C. E. Spencer, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, and William E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent.

Leonard Horwin and Harry M. Fain, Beverly Hills, for real parties in interest.

EDMONDS, Justice.

Virginia Velkov seeks a writ of prohibition to restrain the superior court from proceeding with a certain civil action in which she is named as a defendant. She bases her claim for such relief upon the ground that the court in which that action is pending has no jurisdiction of her person.

By her petition, Mrs. Velkov states that she is a resident of the State of New York. Gold and Needleman, the real parties in interest, have brought an action for declaratory relief against her and her former husband. This action is now pending in the Superior Court of Los Angeles County. When she came to California, at the request of The State Bar, to testify in a disciplinary proceeding before that body, she was served with summons.

Mrs. Velkov appeared specially and moved to quash the summons, but, after a hearing, her motion was denied. At a subsequent hearing for the purpose of taking her deposition she again objected to the jurisdiction of the court and refused to answer the questions propounded to her, for which refusal she is now threatened with punishment for contempt.

Her challenge to the jurisidiction of the court is based upon the contention that, as a nonresident appearing in this state solely for the purpose of testifying in a proceeding before The State Bar, she was immune from service of civil process. Unless prohibited from doing so, she asserts, the court will proceed with the action, and she is without a speedy and adequate remedy in the ordinary course of the law.

By answer, Gold and Needleman deny the alleged lack of jurisdiction. They contend that the local administrative committee of The State Bar, before which the disciplinary proceeding was conducted, is not a judicial tribunal. For the reason, they say, a nonresident witness before it may not claim immunity from service of process in another action or proceeding Furthermore, they argue, the subject matters of The State Bar proceeding and the declaratory relief action are the same and, under such circumstances, the rule of immunity does not apply.

Another contention is that Mrs. Velkov has failed to meet the burden of showing that she is a resident of another state. Finally, they assert that by making certain objections to questions presented in the hearing of the motion to quash the summons and in the deposition proceeding, the petitioner made a general appearance and thus waived jurisidctional defects.

It is a rule of general application that, during a period reasonably necessary to the giving of testimony in a judicial proceeding, a nonresident witness who enters a state primarily for that purpose is immune from service of summons. Murrey v. Murrey, 216 Cal. 707, 710, 16 P.2d 741, 85 A.L.R. 1335; Fox v. Hale & Norcross S. M. Co., 108 Cal. 369, 424, 41 P. 308; Franklin v. Superior Court, 98 Cal.App.2d 292, 294, 220 P.2d 8; Gerard v. Superior Court, 91 Cal.App.2d 549, 552, 205 P.2d 109; Lamb v. Schmitt, 285 U.S. 222, 225, 52 S.Ct. 317, 76 L.Ed. 720; Stewart v. Ramsay, 242 U.S. 128, 129, 37 S.Ct. 44, 61 L.Ed. 192. The rule is based upon public policy and, even though in derogation of the rights of the individual litigant, is justified by the public interest served by the granting of immunity.

In its common-law inception, the privilege was that of the court and was formulated to prevent interruptions and delays in judicial proceedings occasioned by necessary participants being required to defend against other actions. Lamb v. Schmitt, supra. The courts increasingly have emphasized the interest advanced by the voluntary appearance of a nonresident who could not otherwise be made to appear. In such cases, immunity is an inducement to the witness to appear and is said to be his substantive right. See Murrey v. Murrey, supra, 216 Cal. at page 710, 16 P.2d 741; note 5 Calif.L.Rev. 347. Under this reasoning, the privilege has been extended to situations other than those involving strictly judicial proceedings. Thorp v. Adams, 58 Hun 603, 11 N.Y.S. 479 (appearance before legislative commission); Matthews v. Tufts, 87 N.Y. 568 (hearing before referee in bankruptcy); Burroughs v. Cocke & Willis, 56 Okl. 627, 156 P. 196, L.R.A.1916 E, 1170 (taking of deposition); Filer v. McCormick, D.C., 260 F. 309 (bank president attending meeting necessary to the war effort in time of emergency).

Disciplinary proceedings are a function of the supreme court and, although the board of governors of The State Bar and its local committees technically are not judicial tribunals, their findings are considered to be those of an intermediate agency. Gray v. State Bar, 7 Cal.2d 177, 180, 59 P.2d 1033; In re Petersen, 208 Cal. 42, 45, 280 P. 124. Immunity from service of process upon a nonresident witness appearing before such a body serves the same public interest as giving immunity to one who testifies in a judicial proceeding.

A recognized exception to the rule of immunity is that it does not apply if the later action, in regard to which immunity from service is claimed, arises out of or involves the same subject matter as the one in which the nonresident has made a voluntary appearance. Slosberg v. Municipal Court, ...

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14 cases
  • Severn v. Adidas Sportschuhfabriken
    • United States
    • California Court of Appeals
    • August 1, 1973
    ...California has adopted, and often applied, the rule as it was announced in Lamb v. Schmitt. (See Velkov 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 ......
  • Meyer v. Norman, D-87-2
    • United States
    • United States State Supreme Court of Wyoming
    • August 24, 1989
    ...as an adjunct of this court. Rule I, Disciplinary Code for the Wyoming State Bar; Mendicino. Cf. Velkov v. Superior Court in and for Los Angeles County, 40 Cal.2d 289, 253 P.2d 25 (Cal.1953) (non-resident witness appearing in disciplinary proceedings entitled to immunity from service of pro......
  • Kirtley v. Chamberlin
    • United States
    • United States State Supreme Court of Iowa
    • November 18, 1958
    ...p. 1121. IV. One of the generally recognized exceptions to the general rule is well stated in the case of Velkov v. Superior Court, 40 Cal.2d 289, 253 P.2d 25, 26, 35 A.L.R.2d 1348, in the following 'A recognized exception to the rule of immunity is that it does not apply if the later actio......
  • Mendicino v. Whitchurch, s. 2
    • United States
    • United States State Supreme Court of Wyoming
    • June 3, 1977
    ...Court dealing with a vital function of the Court and under its exclusive jurisdiction. See Velkov v. Superior Court in and for Los Angeles County, 40 Cal.2d 289, 253 P.2d 25, 35 A.L.R.2d 1348. While the power to render the ultimate judgment in these cases is vested in this Court, the findin......
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