Kaplan v. Superior Court

NOURSE, J. pro tem.* Petitioner seeks a writ of mandate pursuant to section 416.3, Code of Civil Procedure, requiring the superior court to vacate its order denying petitioner’s motion to quash service of summons upon her as executrix [494]of the estate of David Robert Kaplan, hereinafter called “David,” under letters testamentary issued by .the Surrogate’s Court of New York County, State of New York.

The facts are not in dispute. They are: Real party in interest, Kassab, seeks to recover damages for personal injuries alleged to have been sustained by her through the negligence of petitioner’s decedent who was then a resident of New York, in the operation of an automobile upon the highways b'f this state. Upon David’s death his will was offered for probate in the above mentioned court of the state of New York and letters testamentary were issued to petitioner and another as coexecutors. Thereafter the subject action was commenced and the summons and complaint were served upon petitioner in the State of California. Copy of the summons and complaint was not served upon the Director of Motor Vehicles of this state nor was any copy of the summons and complaint sent by registered mail to David’s executors. No ancillary proceedings in the estate of David are pending in this state.

A foreign executor is immune from being sued in this state in the absence of valid legislation which makes him subject to the process issued in an action commenced in this state. (Canfield v. Scripps, 15 Cal.App.2d 642, 644-645 [59 P.2d 1040]; Helme v. Buckelew, 229 N.Y. 363 [128 N.E. 216, 218-219]; McMaster v. Gould, 240 N.Y. 379 [148 N.E. 556]; 40 A.L.R. 792, 794-795; Rest., Conflict of Laws, § 512.) A foreign executor is, however, subject to the process of this state in an action brought to recover damages for the negligent operation by his decedent of an automobile upon the highways of this state. (Veh. Code, §§ 17450-17456.) These sections of the Vehicle Code specify in detail the manner in which service may be made upon a foreign executor of the estate of a person not a resident of California who, by operating an automobile upon the highways of this state has irrevocably appointed the Director of Motor Vehicles as his true and lawful attorney upon whom may be served process in any action brought against him or his administrators or executors to recover damages for personal injury alleged to have been sustained as a result of his negligent operation of an automobile upon the highways of the state.

In order to obtain jurisdiction over a foreign executor it is necessary that the statutory conditions upon which service depends, must be strictly observed. (Weisfeld v. Superior Court, 110 Cal.App.2d 148, 151 [242 P.2d 29].) The