MYRICK v. SUPERIOR COURT OF STATE IN AND FOR SANTA CLARA COUNTY

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District Court of Appeal, First District, Division 1, California.

MYRICK v. SUPERIOR COURT OF STATE, IN AND FOR SANTA CLARA COUNTY.*

Civ. 15683.

Decided: April 29, 1953

Sidney L. Weinstock, Roger Anderson and Harold J. Chase, San Francisco, for petitioner. James F. Boccardo, San Jose, for respondent.

Petition for a writ of prohibition.

By this proceeding petitioner seeks to restrain the trial court from further proceeding in a personal injury action in which he is a defendant, and in which he was served with process while residing outside of California, it being his contention that such service was void and conferred no jurisdiction on the California courts.

The facts, stated chronologically, are as follows:

July 19, 1951—On this date petitioner and the real party in interest were involved in an automobile accident in California. Petitioner was then a resident of California.

September 22, 1951—This is the effective date of section 417 of the Code of Civil Procedure, which purports to permit service outside of the state on persons who were residents of this state when the cause of action was filed. Stats. of 1951, p. 2537, Chap. 935.

November 28, 1951—On this date the real party in interest filed an action in Santa Clara County against petitioner, who was then still a resident of California.

November 28, 1951, to February 5, 1952—Some time between these dates petitioner was arrested at the request of the New York authorities and taken to New York. The real party in interest made diligent but unsuccessful efforts to serve petitioner in this state before he left the state.

February 5, 1952—Petitioner alleges that on this date he became a resident of New York, and ever since such date has continued to reside there. There is no averment as to the domicile of petitioner.

April 8, 1952—The real party in interest filed an affidavit averring that the defendant in the civil action, petitioner here, had left the state and was on said date a resident of New York in a designated penitentiary. On this same date an order for publication of summons, and for personal service of the summons and complaint on petitioner in New York, was made. As a basis for this order the trial court found that on July 19, 1951, the date of the accident, and on November 28, 1951, the date the civil action was filed, the defendant in the civil action was a resident of California, but has since left the state and now resides in New York.

April 18, 1952—It is admitted that on this date petitioner was personally served with process in the civil action in New York.

November 10, 1952—Petitioner moved to quash the service of summons upon the ground that the trial court had not acquired jurisdiction over him or over the subject matter.

January 6, 1953—Motion to quash denied.

January 13, 1953—This petition for a writ of prohibition was filed.

In addition, the petition avers that it is impossible for petitioner to return to California to defend the action, and that to uphold the validity of the service would deprive him of due process.

Before discussing the legal issues presented, reference should be made to the statutes involved. The basic problem involves the interpretation and validity of section 417 of the Code of Civil Procedure, which became effective September 22, 1951. It provides: ‘Where jurisdiction is acquired over a person who is outside of this State by publication of summons in accordance with Section 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 at the time of the commencement of the action or at the time of service.’

This section on its face purports to be a limitation on sections 412 and 413 of the Code of Civil Procedure. Both of these sections were amended, in minor respects, in 1951 at the same time that section 417 was adopted. Stats. of 1951, Chap. 1737, § 48, p. 4099; Chap. 43, p. 167. As amended, they read in part as follows:

‘Sec. 412. Where the person on whom service is to be made resides out of the State; or has departed from the State; or can not, after due diligence, be found within the State; or conceals himself to avoid the service of summons; * * * and it also appears by such affidavit, or by the verified complaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action; * * * such court, or judge, may make an order that the service be made by the publication of the summons.’

‘Sec. 413. The order must direct the publication to be made in a newspaper, to be named and designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once each calendar week; but publication against a defendant residing out of the State, or absent therefrom, must be pursuant to Section 6065 of the Government Code, except in proceedings instituted pursuant to the provisions of Chapter 4, Title 3, Part 3, of this code. In case of publication, where the residence of a nonresident or absent defendant is known, the court, judge, or justice, must direct a copy of the summons and complaint to be forthwith deposited in the post office, directed to the person to be served, at his place of residence. When publication is ordered, personal service of a copy of the summons and complaint out of the State is equivalent to publication and deposit in the post office. Service is complete upon the making of such personal service or at the expiration of the time prescribed by the order for publication, whichever event shall first occur. * * *’

It is the basic theory of petitioner that under the decisions of the California courts it constitutes a denial of due process to provide by statute that this state may secure in personam jurisdiction, by publication or by service outside the state, over an absent nonresident defendant. It is urged that if section 417 so provides it is unconstitutional. This argument is predicated upon the case of De la Montanya v. De la Montanya, 112 Cal. 101, 44 P. 345, 32 L.R.A. 82, decided in 1896, which, in turn, is based upon Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, decided in 1877. In the De la Montanya case, in a four-to-three decision, it was held that sections 412 and 413 of the Code of Civil Procedure should not be interpreted to permit the obtaining of jurisdiction over an absent defendant in an in personam action because if such sections were so interpreted they would be unconstitutional under the rule of Pennoyer v. Neff. It is argued that since the rule of the De la Montanya case has not been limited by any subsequent California decision so as to make the sections applicable to personal service over absent defendants, and since this court in 1945, in Pinon v. Pollard, 69 Cal.App.2d 129, 158 P.2d 254, expressly rejected the argument that subsequent federal cases had broadened the concept of jurisdiction over absent defendants, the De la Montanya case remains as binding authority on this intermediate appellate court, and compels a holding that the service here challenged was void.

The De la Montanya case undoubtedly supports petitioner. It was there held that California could not secure jurisdiction over an absent domiciliary by publication under sections 412 and 413 of the Code of Civil Procedure so as to render a valid judgment against him for alimony and support, child custody and suit money. An order refusing to vacate such judgment was reversed, even though defendant was not only domiciled in California but had left this state to evade service. The court held that California had no power, even over one of its own domiciliaries, to secure jurisdiction over such absent defendant because to so hold would be to encroach upon the independence of the sister state. Throughout the opinion it is broadly implied, if not expressly held, that to thus provide that service by publication is sufficient to secure jurisdiction over an absent defendant in an in personam action would be to deny to such defendant due process under the federal Constitution. The basic case relied upon is Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.

It will be noted that both the De la Montanya and Pennoyer cases involved service by publication. Although sections 412 and 413 of the Code of Civil Procedure still permit service by publication, the newly enacted section 417 of that code limits those sections by requiring actual personal service outside the state. While the De la Montanya case contains a dictum to the effect that the rule there announced invalidated not only constructive service but actual service outside the state, such problem was not there involved. This distinction will become of vital importance when, later in this opinion, we discuss the reasonableness of the method provided in the statute.

There is no doubt that the rule of the De la Montanya case, together with its dictum on personal service outside the state, if it is still the law, would invalidate the service here involved. But the real party in interest contends, and we agree, that that case is no longer the law and should not be followed in situations covered by section 417.

As already pointed out, the De la Montanya case is predicated upon Pennoyer v. Neff which held that one state lacked power to acquire jurisdiction in personam over a defendant in another state by such method of service. This is no longer the law. In recent years there have been many limitations placed on the concept of lack of power in a state to thus acquire jurisdiction over an absent defendant, as well as a repudiation of the concept that due process is somehow involved in the problem.

One such great limitation is illustrated by such cases as Kane v. New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222, Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, and the cases following them. They involved the validity of statutes providing for service on nonresident defendants outside the state, or upon the registrar of motor vehicles in the state, in causes of action arising out of the use of motor vehicles within the state. The United States Supreme Court held that it was within a state's powers to provide that by the use of the state's highways, the out-of-state motorist impliedly consents to such service. Due process was not violated by such a provision, it was held. This is getting pretty far from the rigid concept of lack of power enunciated in the Pennoyer case. But this new doctrine constitutes but a limited restriction on that case, being applicable only to statutes providing for such service on nonresidents in automobile accident cases arising in the state of the forum. California has such a statute. § 404, Vehicle Code. Thus, had the petitioner here been a nonresident when the automobile accident here involved occurred, jurisdiction could have been secured over him by service on the registrar and service on defendant outside the state. If some such service cannot be provided by statute as to persons who are residents when the accident occurred and who subsequently leave the state, then such residents who subsequently leave the state are in a favored position as compared with nonresidents.

But the rules of Kane v. New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222, and Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, do not represent the only limitation on the concepts announced in the Pennoyer case. Gradually throughout the years the United States Supreme Court has abandoned the older formalistic concept of territorial limitation upon state power, and the restrictive operation of the Fourteenth Amendment, and that court has now determined that the real test is whether the statute under consideration is reasonably calculated to give the absent defendant notice and an opportunity to defend. If so, the statute will be upheld, at least in some situations, where it provides for outside or substituted service on defendants. One of the leading cases so holding is Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278. There a person domiciled in Wyoming left the state to avoid service and to evade his creditors. A Wyoming statute provided for constructive service, or personal service outside the state, in such cases. The defendant was served outside the state, and the Wyoming court granted a judgment in personam against him. Colarado refused to enforce the judgment. The Supreme Court of the United States upheld the Wyoming statute, held the service valid and the Wyoming judgment entitled to full faith and credit. That court abandoned the old formalistic notion of territorial limitation upon state power announced in Pennoyer v. Neff, and declared that, under due process, the test was one of fairness. At page 462 of 311 U.S., at page 342 of 61 S.Ct. the court stated: ‘Domicile in the state is alone sufficient to bring an absent defendant within the reach of the state's jurisdiction for purposes of a personal judgment by means of appropriate substituted service. Substituted service in such cases has been quite uniformly upheld where the absent defendant was served at his usual place of abode in the state * * * as well as where he was personally served without the state. * * * Its adequacy so far as due process is concerned is dependent on whether or not the form of substituted service provided for such cases and employed is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard. If it is, the traditional notions of fair play and substantial justice * * * implicit in due process are satisfied.’ Thus did the court overrule the basic premise of Pennoyer v. Neff.

Of course the Milliken case is distinguishable from the instant case in that it involved a domiciliary of Wyoming who apparently was seeking to evade service in that state. The statute involved, however, and upheld in the decision, spoke of ‘residence’ and not of ‘domicile.’ Petitioner argues that all that the Milliken case decided was that domicile, with its continuing relationship of duties, privileges and obligations, may, within the limits of due process, constitute a basis for acquiring jurisdiction by outside service, but that mere residence when the cause of action arose and when the complaint was filed is not a sufficient legal basis for that purpose. That argument presents the basic question involved in this proceeding.

Before directly discussing this problem some mention should be made of petitioner's argument that the rule of the Milliken case has not operated to change the rule in California announced in the De la Montanya case. This argument is predicated upon the fact that this court in Pinon v. Pollard, 69 Cal.App.2d 129, 158 P.2d 254 held, in 1945, that the Milliken case had not operated to change the rule of the De la Montanya case. But see, Sampsell v. Superior Court, 32 Cal.2d 763 at page 775, 197 P.2d 739, broadly intimating that, because of the Milliken case, perhaps the rule of De la Montanya should be reexamined. But the Pinon case was decided before section 417 of the Code of Civil Procedure was adopted. It is for the Legislature in the first instance to determine policy and for the courts to interpret and to pass on the validity of such policy. The De la Montanya case stood for the principle that, until 1951, this state did not believe, as a matter of state policy, that even domicile was sufficient to constitute a basis for jurisdiction. But now the Legislature, in 1951, has determined that as a matter of state policy, jurisdiction in personam may be acquired by personal service on a nonresident if he was a resident when the action was commenced or when service was made. Thus the Legislature has attempted to overrule the rule of the De la Montanya case. The question is no longer what the state policy on this question should be, as it was in 1945 when Pinon v. Pollard was decided, because that policy has been determined by the Legislature in adopting section 417 of the Code of Civil Procedure. The question now is one of the validity of that policy under the federal Constitution.

That brings us to the key question—can a state validly provide, under the due process clause of the federal Constitution, that a state may acquire jurisdiction in personam by service on the defendant outside the state, where the defendant was a resident at the commencement of the action or at the time of service? Is residence of this type a valid basis for jurisdiction?

This question cannot be finally decided except by the United States Supreme Court. Until that court speaks, the most a state court can do is to make an informed guess as to what that court will do. But we are not without some guide posts. The basis theory of the Milliken case (although it involved a domiciliary) was that the test to be applied was one of reasonableness—does the statute reasonably provide for notice and an opportunity to defend? If so, it is constitutional. In that case it held that domicile was a sufficient contact with the state to make outside service valid. In International Shoe Co. v. State of Washington, 326 U.S. 310, at page 316, 66 S.Ct. 154, at page 158, 90 L.Ed. 95, Chief Justice Stone expressed the prevailing view in the following language: ‘Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was a prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ [Citing Milliken v. Meyer and other cases.]' See, also, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865.

The statute under consideration obviously gives reasonable notice because it requires personal service outside the state. The only question left for determination is whether it gives the defendant so served a reasonable opportunity to defend. Is it fair and reasonable to require a defendant who was a resident when he became involved in the accident that gives rise to the action and was a resident when the complaint was filed, to return to California to defend the action after he has left the state and now resides elsewhere? Does that procedure offend ‘traditional notions of fair play and substantial justice’? Certainly, if domicile is a basis for so acquiring jurisdiction, residence (at some time) can also be made a basis. Residence, in fact, is a much clearer and fairer basis than domicile. The latter depends largely upon the subjective and frequently undisclosed intent of the party involved, which he can put on or discard like a cloak at his uncontrolled whim or caprice, dependent upon whether it is or is not to his benefit to be domiciled in the jurisdiction. Residence is a much more objective concept and can be proved or disproved by the actual facts. If the duties, privileges and obligations of domicile are sufficient to confer jurisdiction, then certainly the somewhat similar duties, privileges and obligations of residence are also sufficient. Thus, then only real question is when such residence must exist. Residence at the time of service and prior thereto is clearly sufficient. Is residence at the time of the accident and time the complaint was filed sufficient? We think it is. We think that this is a matter of policy to be determined by the Legislature. It certainly does not shock our ‘traditional notions of fair play and substantial justice’ to compel the defendant to return to defend rather than to compel the plaintiff to search out the defendant and sue him in the jurisdiction of defendant's present residence. If it is fair and reasonable to compel a person who is a nonresident of California who is a participant in an accident here to return to California to defend the cause of action filed as a result of such accident, then it must also be fair and reasonable to compel one who is a resident when the cause of action arose and is filed to return and defend. It was for the Legislature in the first instance to weigh the factors involved, and to determine whether to inconvenience the defendant or the plaintiff. The Legislature has determined that if the defendant was a resident when the cause of action was filed, it is fair and just to compel him to return to this state to defend such action. Inasmuch as such determination is not shocking but rather is fair, just and reasonable, the legislatively declared policy cannot and should not be set aside.

It is next argued by petitioner that section 417 of the Code of Civil Procedure, properly interpreted, accomplished no change in the law at all but was passed by the Legislature to become effective when, as, and if the Supreme Court of California might reverse or modify the rule of the De la Montanya case. It is contended that this must be so because by its terms it refers to the previously existing sections 412 and 413 of the Code of Civil Procedure and those sections, it was held in the De la Montanya case, do not authorize out-of-state service. It seems to us that this is a strange and strained interpretation of section 417. It amounts to saying that the busy Legislature took time out in 1951 to pass a meaningless statute that would only become effective if the Supreme Court reversed its holding that sections 412 and 413, insofar as they provide for constructive service on nonresidents, are unconstitutional. The declaration of unconstitutionality is not a static thing that can only be changed by the state Supreme Court. Before section 417 was adopted, sections 412 and 413 simply provided for constructive service. It is very likely that such sections, if not limited in their application, would still be invalid. But section 417 provided limitations on sections 412–413, namely out-of-state service, and residence at least when the cause of action was filed, so that with such limitations, the sections are now valid. That is the obvious effect of section 417.

The last contention of petitioner is that even if section 417 is constitutional, it has no application to him because such section did not become effective until September 22, 1951, while the accident occurred in July of 1951. It is contended that to apply the statute to petitioner would be to apply it retroactively and that cannot be done because petitioner has some sort of a ‘vested right’ in the manner of service existing when the cause of action arose. In support of this somewhat startling concept that the manner of service is substantive and not procedural, and that a person has a vested right in the manner of service existing at the time the cause of action arose, petitioner cites the recent case of Allen v. Superior Court, Cal.App., 251 P.2d 358. The Supreme Court has granted a hearing in that case, so that it no longer constitutes a precedent. Moreover, there is a fundamental difference between the Allen case and the instant one. In that case the cause of action was filed July 12, 1948, three years before the passage of section 417. In the instant case the complaint was filed November 28, 1951, two months after the effective date of the statute, and service was, of course, subsequent to that. The statute comprehends one was a resident ‘at the time of the commencement of the action’. Defendant was a resident at the commencement of the action and on that date section 417 was effective. Thus, to apply section 417 in the instant case is to give it prospective and not retroactive operation.

The concept that one has a vested right in the mode and manner of service as they existed when the cause of action arose, is, in our opinion, unsound. One does not secure a vested right in a mere rule of procedure. Certainly, the method of service is a matter of procedure, and not of substantive law. That being so, the Legislature had the power to make the change in the law applicable to pending causes of action, at least where the complaint was not filed until after the statute changing the law became effective.

The alternative writ is discharged and the petition for a peremptory writ is denied.

PETERS, Presiding Justice.

BRAY and FRED B. WOOD, JJ., concur.