Amparan v. Superior Court

McCOY, J. pro tem.* Petitioner, who is the defendant in the action entitled Oscar Frank Amparan v. Ruth Marjorie Amparan, number NE D 9774, pending in the respondent court seeks a writ of mandate from this court pursuant to Code of Civil Procedure, section 416.3, requiring the respondent court to enter an order quashing the service on her of the summons in that action.

The real party in interest, herein referred to as plaintiff, filed a complaint for divorce from petitioner, herein referred [43]to as defendant, on April 15,1966. On April 18 he obtained an order for publication of the summons on the ground that defendant was a resident of Tucson, Arizona. The summons was served on defendant personally in Tucson on April 26 and returned to the court with proof of service on June 27.

On May 26,1966, defendant noticed a motion to quash the service of summons pursuant to Code of Civil Procedure, section 416.1. This motion was argued and denied on June 10, at which time the court granted defendant 15 days in which to answer. The minute order recites that notice was waived. On June 24 defendant served and filed her notice of motion for reconsideration of the motion to quash to be heard on July 8. The minute order for that day reads: “Both counsel submit matter on the record. The court treats defendant's motion for reconsideration as an application for order quashing service of summons after prior refusal pursuant to section 1008 CCP. Court has considered motion to quash service of summons and motion is denied. Attorney order. Plaintiff to give notice. ’ ’

Although no “attorney order” was signed by the court, plaintiff’s attorney gave written notice to defendant on July 13 that on July 8 the court had granted defendant’s motion for reconsideration and “upon reconsideration denied defendant’s Motion to Quash Service of Summons ...” On July 22 defendant filed the petition before us as provided in Code of Civil Procedure, section 416.3.

Plaintiff contends preliminarily that this court has no jurisdiction to consider the petition because it was not filed within the time provided by section 416.3, Code of Civil Procedure. This contention has no merit. That section provides that when a motion to quash service of summons is denied the defendant before pleading may “within 10 days after service upon bim of written notice of the order of the court denying the motion . . . petition an appropriate appellate court for a writ of mandate directed to the court wherein the action is pending requiring the entry of its order quashing the service of summons. ’ ’ Defendant was not served with a written notice of the order of June 10 denying her motion. The trial court, “in its discretion, having [thereafter] determined to reconsider the matter, and having the renewal motion before it, had the power to dispose of same and the second order of denial is reviewable under the provisions of section 416.3, Code of Civil Procedure.” (Josephson v. Superior Court, 219 Cal.App.2d 354, 360 [33 Cal.Rptr. 196].)