Torrey Pines Inn, Inc. v. Superior Court

AGEE, J. The petitioners, Torrey Pines Inn et al., seek a writ of mandate directed to the Superior Court in and for the City and County of San Francisco requiring it to enter its order quashing the service of summons in action number 537619 pending in said court.

This action was commenced on November 7, 1963, by Alta Engineering Associates against petitioners for money allegedly due for engineering services rendered in connection with the construction of a motel at La Jolla, San Diego County, California. A copy of summons and complaint was personally served upon petitioner Frank J. Jackson, Jr. on November 15, 1963.

On November 12, 1963, petitioner, Torrey Pines Inn, commenced an action in the Superior Court in and for the County of San Diego against Alta Engineering Associates and two of its employees Waegemann and Enomoto, for damages for alleged malpractice in connection with said engineering services. A copy of summons and complaint was personally served on Enomoto on November 12, 1963.

The respective causes of action pleaded in the two actions arise out of the same transaction and involve the same subject matter and each is a compulsory counterclaim as against the other. (Code Civ. Proc., § 439.) The parties herein concede the concurrent subject matter jurisdiction of the two courts in the first instance. The issue is which one has priority of jurisdiction over the parties and the present exclusive control of the entire controversy.

Section 416 of the Code of Civil Procedure provides that “From the time of the service of the summons and of a copy of the complaint in a civil action,___the court is deemed to have acquired jurisdiction of the parties, and to have control of all the subsequent proceedings.” *

Section 416.1 of the Code of Civil Procedure provides that “Any defendant ... upon whom service of summons has been made may serve and file ... a notice of motion to quash the service of summons, upon the ground of lack of jurisdiction of the court over him.” Such a motion was filed in the San Francisco action by the defendants therein (who are the petitioners herein) on November 26, 1963. The motion was based upon the fact that summons and complaint in the San Diego action were served upon a defendant therein (Eno[267]moto) before summons and complaint in the San Francisco action were served upon a defendant therein (Jackson, Jr.). This motion was heard and denied on January 23,1964.