Ward v. Superior Court

[3]Opinion

AULT, J. William B. Ward III (Ward) petitioned this court for a writ of mandate, pursuant to Code of Civil Procedure, section 416.3, after the superior court denied his motion to quash service of summons issued on the County of San Diego’s complaint to collect delinquent unsecured property taxes. Real party in interest, the County of San Diego (County), filed opposition, and we issued an order to show cause. Both parties filed additional points and authorities.

On January 27, 1969, the County filed a complaint against Ward and the executors of the estate of Wilbur Clark, deceased, for delinquent unsecured property taxes. The County alleges Ward and the executors were, on the first Monday in March 1966, the owners of a possessory interest, a leasehold, in certain property leased from the San Diego Unified Port District. It alleges between that date and June 30, 1966, the property was assessed and unsecured property taxes were levied and appeared upon the unsecured assessment roll. It further alleges the taxes were unpaid on September 1, 1966, and have remained unpaid and are due and owing together with penalties which have accrued. It prays judgment accordingly.

Service upon Ward was obtained by publication of the summons and by personal service upon him in Fairfield County, Greenwich, Connecticut, where he now resides. The County’s declaration for order for publication of summons states Ward was a resident of California when the cause of action accrued, “on the first Monday in March 1966.”

At the time in question, Code of Civil Procedure, section 417, read: “Where jurisdiction is acquired over a person who is outside of this State by publication of summons in accordance with Sections 412 and 413, the court shall have the power to render a personal judgment against such person only if he was personally served with a copy of the summons and complaint, and was a resident of this State (a) at the time of the commencement of the action, or (b) at the time that the cause of action arose, or (c) at the time of service.”

The County relies on subdivision (b) to establish jurisdiction, contends Ward was a California resident on the first Monday in March 1966, and claims the cause of action for unpaid taxes arose on that date. Ward contends the cause of action did not arise until the unpaid taxes became delinquent, September 1, 1966. He further urges service upon him under section 417 subdivision (b) was ineffective to confer jurisdiction and should be quashed because he was not a California resident on that date.