Shambrum v. Frey

Opinion

ROTH, P. J. Respondent Linda Shambrum (Linda), by complaint filed on January 30, 1975, in which she was plaintiff, sued defendant Everard U. Frey (Frey). Frey is the appellant on this appeal. The complaint in common counts alleged she was assignee for collection and was predicated on money owing to her assignor “Richard Langguth K. G.,” a limited partnership organized under the laws of and situated in [467]West Germany (Langguth), for certain wines sold and delivered to Frey by Langguth.

Frey answered, denied the indebtedness and pleaded as one of the affirmative defenses to Linda’s claim that it was subject to all of the defenses which he had against Langguth, which defenses were more fully set forth in Frey’s cross-complaint filed contemporaneously with his answer. Langguth was a named party in the cross-complaint which was served upon him in West Germany and is also a respondent on this appeal.

The cross-complaint was served on Linda as a fictitiously named cross-defendant. In said cross-complaint Frey, pleaded breaches by Langguth of both a written and an oral contract whereunder Frey was appointed and acted as exclusive distributor of Langguth’s wines in the State of California.

Linda filed a notice of motion and motion for partial summary judgment and summary judgment, wherein she sought judgment on her complaint for the amount alleged to be owed by Frey and for judgment against Frey on his cross-complaint. Concurrently, Langguth filed a notice of motion to dismiss the cross-complaint for lack of jurisdiction and to quash service of summons upon Langguth. The motions were heard together on June 10, 1977. By its minute order of the same date and a subsequent formal summary judgment made and filed June 24, 1977, the trial court denied Linda’s motion for summaiy judgment on the complaint, granted summary judgment to Linda on the cross-complaint, ordered Langguth’s motion to dismiss the cross-complaint off calendar and granted Langguth’s motion to quash service of summons on the cross-complaint. Appellant Frey, by notice of appeal and amended notice of appeal, appeals from the minute order granting the motion to quash service on Langguth and the summary judgment dismissing the cross-complaint as to Linda.

The following facts are undisputed. From 1957 until 1972, Frey purchased wines from Langguth, a limited partnership organized and existing by virtue of the laws of West Germany, with its principal place of business there, During the 10-plus years, October 17, 1961, to January 1, 1972, Frey operated under a written agreement with Langguth, purchasing and selling about $10,000 worth of Langguth’s wines per