Estwing Manufacturing Co. v. Superior Court

128 Cal.App.2d 259 (1954) ESTWING MANUFACTURING COMPANY (a Corporation), Petitioner,

v.

SUPERIOR COURT OF SAN MATEO COUNTY et al., Respondents; DAVID J. GALLOW, Real Party in Interest.

Civ. No. 16420. California Court of Appeals. First Dist., Div. Two.

Oct. 21, 1954. Pillsbury, Madison & Sutro, John B. Bates and Anthony P. Brown for Petitioner.

No appearance for Respondents.

Morgan and Beauzay for Real Party in Interest.

KAUFMAN, J.

Petitioner prays that this court restrain the San Mateo Superior Court from further proceeding in an action in which petitioner has been named defendant on the ground that because petitioner, a foreign corporation, does not do business in California, it is not subject to the jurisdiction of respondent San Mateo Superior Court; petitioner also prays that this court compel the San Mateo Superior Court to vacate its order denying petitioner's motion to quash the substituted service made on it.

Respondent David J. Gallow filed a complaint in respondent superior court alleging that he was injured when a piece of metal from the head of a hammer which he was using flew off and imbedded itself in his arm; that he had received possession of the hammer from Schopke and Burke Lumber and Hardware Company; that the hammer had been negligently manufactured by petitioner. Petitioner is an Illinois corporation engaged in the manufacture of hammers and hatchets. Substituted service of summons was made on it through the Secretary of State who forwarded the summons to petitioner in Illinois. On August 27, 1954, after petitioner had appeared specially to contest the jurisdiction of the court, respondent superior court denied its motion to quash the substituted service.

Petitioner's contention is that its motion to quash the substituted service should have been granted because there was no evidence before the superior court showing that the latter had jurisdiction over petitioner.

The evidence before the superior court (by depositions and affidavits) brought out the following facts: Petitioner has one factory which is located in Illinois; it maintains no office nor sales force in California; its products are sold only to wholesalers with whom it has no franchise agreements or other contracts; petitioner's only solicitation of business from wholesalers consists in the mailing of its catalogue and price lists to the wholesalers who then mail their orders to petitioners; petitioner then fills the orders and ships the products to the wholesaler; petitioner advertises in national trade and other magazines, but does no local advertising of its products;