Sales Affiliates, Inc. v. Superior Court

SHINN, P. J. Sales Affiliates, Inc., a New York corporation, petitions for a writ commanding the cessation of proceedings against it in an action for damages in which petitioner and certain others were named as defendants. Plaintiffs in the action, Cheryle and George Gorciak, claim to have sustained personal injuries from the use of a preparation distributed and sold by petitioner and used in giving permanent waves. Process was served upon the Secretary of State and a copy was delivered to petitioner at its New York office. Petitioner appeared specially and made a motion to quash service of [135]summons upon the ground it was not, and had not been, doing business in the State of California, and that the attempted service was therefore a nullity. The motion was denied.

It is represented by the petition and supporting affidavits that petitioner purchases beauty products and sells the same to beauty supply jobbers and chain and department stores throughout the United States, one of its jobbers being Biltmore Beauty Supply Company, one of defendants in the damage action; that Biltmore Company sends order for goods to petitioner in New York which are accepted there, following which the products are shipped to Biltmore Company in California from petitioner’s warehouse in Waterloo, New York; that the goods are paid for in New York. It is alleged that Cheryle Gorciak entered into a written agreement under which she was licensed to use certain of petitioner’s patented methods of putting permanent waves in human hair. The licensee paid $5.00 upon signing the agreement, and agreed to pay $5.00 per year to keep the license in force, and not to charge customers less than the prices stipulated by petitioner. The agreement was signed by Mrs. Gorciak, doing business as Cheryle’s Beauty Shop, by Biltmore Beauty Supply (“Zotos, jobber”), by A1 Bronson (“Zotos jobber salesman”), and was sent to New York, where it was signed by petitioner’s secretary, and a copy returned to Mrs. Gorciak. It is alleged that petitioner's jobber at Los Angeles, Biltmore Beauty Supply Company, is not its agent, but instead is a customer; that petitioner has one representative for 11 of the western states who solicits orders for mechandise from jobbers and wholesalers but not from retail purchasers, forwards the orders to petitioner in New York State, whence the goods are shipped to the customers. It is alleged that petitioner has never qualified to do business in the State of California, has no officer or agent here for the purpose of accepting service of process, or any other purpose, except its said sales representative, keeps no stock of goods in California, and that all accounts are paid through its New York office. The Biltmore Company, through its salesman, A1 Bronson, procured Mrs. Gorciak as a customer and furnished her with the agreement above mentioned.