Yeck Mfg. Corp. v. Superior Court, San Diego County

• Decision Date: 20 April 1962
• Citation: 202 Cal.App.2d 645,21 Cal.Rptr. 51
• Court: California Court of Appeals Court of Appeals
• Parties: YECK MANUFACTURING CORPORATION, Petitioner, v. SUPERIOR COURT, SAN DIEGO COUNTY, Respondent, Ray Rowell, Real Party in Interest. Civ. 6937.

Page 51

21 Cal.Rptr. 51

202 Cal.App.2d 645

YECK MANUFACTURING CORPORATION, Petitioner, v. SUPERIOR COURT, SAN DIEGO COUNTY, Respondent Ray Rowell, Real Party in Interest.

Civ. 6937.

District Court of Appeal, Fourth District, California.

April 20, 1962.

Brooks Crabtree and C. C. Lewis, Jr., San Diego, for petitioner.

Walkoe & Dierdorff, San Diego, for real party in interest.

SHEPARD, Justice. This is a petition for a writ of mandate to compel respondent Superior Court to enter its order quashing service of summons and complaint in a damage action.

THE ACTION

Ray Rowell (hereinafter called Rowell), real party in interest herein, filed an action in the Superior Court in San Diego County against Parkway Builders Market, Inc., a corporation, dba Whiting Mead Co. Builder's Market (hereinafter called Parkway), Reynolds Aluminum Supply Company of California, a corporation, (hereinafter called Reynolds), Yeck Manufacturing Corporation et al., alleging, inter alia, that on July 25, 1960 Rowell purchased from Parkway 'Three aluminum columns designated as Trylon Flat, that these Three (3) columns comprised of Six (6) aluminum strands and were sold to plaintiff by defendant WHITING MEAD CO. BUILDER'S MARKET for the express purpose of erecting a patio roof.' That defendants represented that each column containing two aluminum strands would hold a weight in excess of 1,000 pounds and were suitable for the purpose intended; that the columns would not hold the weight as represented; that they buckled and collapsed, causing injury to plaintiff to his damage. The complaint contains five alternative causes of action, some on the theory of tort and some on the theory of breach of contract warranty.

Rowell secured service of summons and complaint through mailing by the Secretary of State in accordance with the provisions of Corporations Code, § 6501, on the contention that petitioner was 'doing business in the State' within the meaning of Code of Civil Procedure, § 411(2). The motion to quash service was heard in the Superior Court on affidavits, was denied and petition herein filed. If the trial court's order was erroneous, mandamus is the proper remedy. (Proctor & Schwartz v. Superior Court, 99 Cal.App.2d 376, 383, 221 P.2d 972.)

FACTS

The essential facts disclosed by the record before us are without conflict. Petitioner is a Michigan Corporation with its sole manufacturing plant and sole place of physical business operation at Dundee, Michigan. It manufactures certain aluminum building materials. Its general circulatory advertising is solely in national trade magazines. It makes no personal mail or telephone solicitation of sales in California. It has no offices, agents, solicitors, sales contracts, agreements, or franchise arrangements of any kind in this state and has never listed itself with any California governmental agency. Its sole method of sale is by acceptance of orders through the United States mail for a specified price and shipment by truck or railroad to the buyer. There is no evidence of any retention of title, sale on consignment, payment of commission, or price control. Its California sales are casual and isolated.

In the manner above described, in 1960 petitioner sold to Reynolds a quantity of aluminum patio posts, columns and accessories and sent to Reynolds certain brochures and advertising materials and other written and printed descriptions of its products. The only brochure in evidence and the only one relied upon by Rowell, does not describe nor identify the columns described in the damage complaint. Throughout Rowell's complaint he described the column he purchased as Trylon Flat with two strands and that defendants warranted a weight sustaining strength of in excess of 1,000 pounds per column. The brochure placed in the record and referred to by Rowell in this proceeding used only the names 'The Trylon' and 'The Orleans,' and the pictures on the brochure clearly show three strands. On the first page of the brochure a weight capacity of 2,600 pounds is given, but on the somewhat blurred photographic copies the second page of the brochure apparently shows a weight capacity of 2,000 pounds. Nowhere on the brochure does the name 'Trylon Flat' appear nor does any word or picture designate a two-strand column nor does the figure 1,000 pounds appear. This hiatus was referred to by counsel at the oral argument before this court but was never clarified.

On the face of the brochure appears the word 'Yeck,' but nowhere does the name or address of the petitioner appear. Reynolds' full name and address does appear. The record does not show when it was placed thereon but oral statements of counsel indicate that it was stamped thereon by Reynolds after reaching California. There is no evidence that it was placed thereon by or under direction of petitioner. Reynolds sold some of these posts to Parkway and Parkway in turn sold the posts in question to Rowell. There is no privity of contract between petitioner and Rowell. (Burr v. Sherwin Williams Co., 42 Cal.2d 682, 695, 268 P.2d 1041.)

Rowell does not allege that he ever saw a brochure before his purchase nor that he was given one at any time; he merely recites that he relied on the representations, leaving the reader to infer that he was presented with a brochure before purchase. There is no allegation on information, belief or otherwise that petitioner sent a brochure to Reynolds with the direction that Reynolds distribute it to retailers or consumers. He argues that it must be inferred that petitioner so intended, that Reynolds carried out some sort of implied instruction in that connection and that Parkway, likewise acting on some sort of implied instruction from Reynolds, distributed the brochure to Rowell. There is no evidence as to what other persons or firms in California, if any, purchase and sell petitioner's product. Matters appearing in a pleading by mere recital are not allegations of fact. (California Trust Co. v. Gustason, 15 Cal.2d 268, 272[5-6], 101 P.2d 74; Roberts v. Roberts, 81 Cal.App.2d 871, 886, 185 P.2d 381; Lincoln v. Fox, 168 Cal.App.2d 31, 33[2-7], 335 P.2d 161.)

'DOING BUSINESS IN THIS STATE'

Is petitioner 'doing business in this State'? Rowell, on the basis of the foregoing statement, claims that the record sufficiently shows a warranty by petitioner and that therefore petitioner is 'doing business in this State' within the meaning of Code Civ.Proc., sec. 411, and that therefore it has subjected itself to an action in personam in the California courts and the service of process provided by Corporations Code, section 6501.

When the validity of the service of summons and complaint on a foreign corporation under the substitute service provisions of said section 6501 is challenged, the burden of proving that such corporation is 'doing business in this State' is on the plaintiff. (Proctor & Schwartz v. Superior Court, supra, 99 Cal.App.2d p. 379, 221 P.2d 972 and authorities there cited.)

'Whether in any given case, the person served may properly be regarded as within the concept of the statute depends on the particular facts involved.' (Cosper v. Smith & Wesson Arms Co., 53 Cal.2d 77, 83, 346 P.2d 409, 413.)

'* * * whether or not a foreign corporation is doing business within this state and is subject to the jurisdiction of our courts depends upon the limits for such jurisdiction as determined by our statutory and constitutional provisions, which in turn are subject to applicable federal constitutional guarantees, especially the due process guarantee of the Fourteenth Amendment. (Cita.) The problem of jurisdiction over a foreign corporation is therefore a combined state and federal question. (Cita.) Specifically, we have held that the term 'doing business' is a descriptive one that the courts have equated with such minimum contacts with the state 'the the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'''

(Empire Steel Corp. v. Superior Court, 56 A.C. 842, 848[2-3], 17 Cal.Rptr. 150, 153, 366 P.2d 502, 505, and at page 854, 17 Cal.Rptr. at page 157, 366 P.2d at page 509:)

'In this connection it has been stated that for purposes of jurisdiction: 'The essential thing is merely whether the corporations are present within the state, whether they operate through an independent contract, agent, employee or in any other manner.''

In analyzing the various elements properly subject to consideration in these matters, our Supreme Court said in Fisher Governor Co. v. Superior Court, 53 Cal.2d 222, 225-226, 1 Cal.Rptr. 1, 3, 347 P.2d 1, 3 'The interest of the state in providing a forum for its residents (Cita.) or in regulating the business involved (Cita.); the relative availability of evidence and the burden of defense and prosecution in one place rather than another (Citations); the ease of access to an alternative forum (Cita.); the avoidance of multiplicity of suits and conflicting adjudications (Citations), and the extent to which the cause of action arose out of defendant's local activities (Citations) are all relevant to this inquiry.'

From the Federal constitution standpoint of 'due process' under the Fourteenth Amendment, the United States Supreme Court, in International Shoe Co. v. State of Washington, etc., 326 U.S. 310, at page 316, 66 S.Ct. 154, at page 158, 90 L.Ed. 95, said:

'Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition to a judgment personally binding him. (Ci...