Minthorne v. Superior Court

California Court of Appeal Mar 12, 1963 No. Civ. 27076Published

Before: Kingsley

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Holding. The court held that a nonresident party or witness in California for pending litigation is immune from service of process in an unrelated second action, and that a prior denial of a mandate petition based on procedural insufficiency does not bar a subsequent petition on the merits.

Issues

Whether a prior denial of a mandate petition for procedural reasons bars a subsequent petition under the doctrine of res adjudicata.
Whether a nonresident attending court as a witness is immune from service of process in an unrelated civil action.

Disposition. Peremptory writ issued.

Quotations verified verbatim against the opinion

“Both parties agree that the general rule prohibits service of summons on a nonresident who is in this state solely to attend, as party or witness, on other pending litigation.”

“The parties are not the same; no issue in the first suit is involved in the second, nor vice versa. The general rule, and not the exception, applies.”

KINGSLEY, J.

This is an application for a writ of man

[749]

date to require the trial court to grant a motion to quash service of summons.

Petitioner, a resident of Arizona, was a defendant in an action heretofore pending in the Superior Court, County of Los Angeles, denominated

Newfield

Seeburg Distributing Co.,

being proceeding numbered 749051 in the files of that court. On September 30, 1962, petitioner came to Los Angeles from Phoenix in order to attend and to testify in that action. While he was waiting for the case to be assigned to a trial department, he was served with process in an action brought against him by the real party in interest in this proceeding, being proceeding numbered 800447 in the files of the respondent superior court. A motion to quash the service of summons in action 800447 was duly made and on December 5, 1962, was denied on the stated ground that “Showing unsufficient

[sic]

to establish that two actions not related. ’ ’

On January 8, 1963, petitioner filed in this court, in our proceeding numbered 2 Civil 27036, a petition for a writ of mandate to secure an order directing the granting of the motion to quash. That petition showed only the date of the ruling on the motion. Since the statute (Code Civ. Proc., § 416.3) requires that the petition for writ of mandate be filed in this court within 10 days after service of “written notice of the order of court denying the motion,” we denied the petition, stating in our minute order that it was “denied absent any showing that petition was timely filed.” That order was dated January 16, 1963. Thereafter, on January 24, 1963, petitioner filed a new petition which was given the new filing number of 2 Civil 27076. In this petition he alleged facts (not denied by respondent or by the real party in interest) showing that the first petition (in No. 27036) had, in fact, been filed in time in light of extensions of time to plead granted to him in the trial court but which had not been alleged in the first petition. On the basis of the showing made in the second petition this court, by a minute order dated February 6, 1963, issued an alternative writ of mandate, which was argued before us on March 5, 1963.

Minthorne v. Superior Court

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KINGSLEY, J.

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