Frederick Fell, Inc. v. Superior Court

Opinion

KINGSLEY, J.

This is a petition, pursuant to section 418.10 of the Code of Civil Procedure, to review an order of the trial court denying a motion by a foreign corporation to quash service of summons on it. We issued an alternative writ of mandate, the matter has been briefed and argued. We grant the peremptory writ.

In 1958 the real party in interest (hereinafter “plaintiff”), a resident of California, entered into a contract with petitioner, a New York corporation, under which petitioner agreed to publish a book written by plaintiff and to pay him certain royalties. Plaintiff now claims that he has validly terminated that contract according to its terms and that he is entitled to an accounting. He filed an action, seeking both declaratory relief and such an accounting in respondent court, naming as defendants petitioner and its president. The president (Frederick Fell) was personally served in California by summons and complaint, has appeared in the action, and no issue as to jurisdiction over him is before this court.. Petitioner corporation purportedly was served by the service on its president, in California, with summons and complaint. That service was duly attacked by the motion in respondent court; the motion was denied; the present proceeding followed. We conclude that, on the showing made in the trial court, California

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had no jurisdiction over petitioner and that its motion to quash service should have been granted.

As far as the record discloses,

1

the only material

2

California contacts herein involved are the residence of the plaintiff, the presence of petitioner’s president at a book dealer’s convention in Los Angeles, California, at the time he was served, and a listing in a trade publication indicating that petitioner had had a branch office in Los Angeles in 1966.

The record is inconclusive as to the place of contracting. The verified complaint alleges (in paragraph II) that the contract was entered into in California, but the contract, which it incorporates by reference, recites that it was entered into in New York; the affidavit of petitioner’s president alleges that the contract was “executed on defendant’s behalf” in New York City. At oral argument, counsel for plaintiff stated that he had no knowledge of the place of final execution. Under the circumstances, we treat the case as involving a contract in New York.