VELKOV v. SUPERIOR COURT OF CALIFORNIA IN AND FOR LOS ANGELES COUNTY

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District Court of Appeal, Second District, Division 3, California.

VELKOV v. SUPERIOR COURT OF CALIFORNIA IN AND FOR LOS ANGELES COUNTY et al.*

Civ. 19130.

Decided: September 11, 1952

C. E. Spencer, Los Angeles, for petitioner. Leonard Horwin and Harry M. Fain, Beverly Hills, for real parties in interest.

Petition for a writ of prohibition to restrain the Superior Court of Los Angeles County from proceeding in an action entitled Gold et al. v. Velkov et al., number S.M.C. 3153.

It is alleged in the petition that petitioner is a resident of the State of New York; she came into the State of California on May 12, 1952, at the request of the State Bar of California for the purpose of testifying in a proceeding then pending before said State Bar and for no other purpose; the State Bar is an arm of the judiciary of California and has power to subpoena witnesses to attend hearings before it; petitioner, on arrival within California, was served with a subpoena by the State Bar directing her to appear on May 15, 1952, in a matter pending before the State Bar; on May 12, 1952, Gold and Needleman filed in the clerk's office of said superior court their complaint against petitioner and Samuel A. Guiberson, Jr.; Leonard Horwin and Harry M. Fain are the attorneys for said plaintiffs, and a copy of said complaint is attached to and made a part of said petition; Leonard Horwin filed a certificate for assignment and transfer of said action (Gold v. Velkov) to the Santa Monica department of the superior court, and he stated therein that both defendants therein are nonresidents; a copy of said certificate is attached to and made a part of said petition; on May 15, 1952, copies of the complaint, summons, and certificate for assignment were served on petitioner; on May 14, 1952, Harry M. Fain made his affidavit to secure a subpoena duces tecum in connection with a deposition sought to be taken of petitioner, and said affidavit stated in part: ‘That Virginia Velkov resides out of Los Angeles County, to wit, in the City and State of New York’; a subpoena was issued directing her to appear for the deposition before a notary public in said county on May 22, 1952; the subpoena was served upon petitioner on May 15, 1952; on May 21, 1952, the petitioner, by her attorneys appearing specially for said purpose, made a motion in said court to quash service of the summons and subpoena upon the ground that petitioner was a nonresident of California and not subject to process of California courts while she was in attendance upon the State Bar under its subpoena; the motion was denied; on May 22, 1952, petitioner appeared before said notary and refused to testify upon the ground that she was a nonresident of California in attendance before the State Bar and was not subject to jurisdiction of California courts; at said time the attorneys for said plaintiffs directed the notary to prepare a report of the proceedings, and they threaten to proceed before the superior court for the purpose of requiring petitioner to comply with the subpoena and ‘for her contempt’ for failure to be sworn; the superior court and the judges thereof, unless prohibited by this court, intend to hear, try, and decide motions and proceedings based upon said complaint, and they will order petitioner to give her deposition, and will, if she further refuses to testify, punish her for contempt of court; said court has no jurisdiction over petitioner for the reason she is a nonresident of California and is a resident of New York; petitioner has no plain, speedy and adequate remedy in the ordinary course of law; the remedy by appeal from the order denying said motion, or from any order made directing the taking of the deposition, is not adequate and speedy; unless a writ of prohibition is issued petitioner will be required to appear generally and thereupon she will be subject to the orders of said court, although she is a nonresident of California and is exempt from process of California courts.

In answer to the petition, the real parties in interest, said Gold and Needleman, stated: they do not have sufficient information or belief with regard to the allegation that petitioner is a resident of New York, and for lack of such information or belief they deny said allegation; they deny the allegation that petitioner came into California on May 12, 1952, at the request of the State Bar; they aver upon information and belief that petitioner is the complaining witness in the matter before the State Bar, the person who instituted and engendered the same, and is appearing therein at her own instance and for her own motives of selfinterest rather than in response to any request of the State Bar; they deny that petitioner came to California for the purpose of testifying in a proceeding pending before the State Bar and ‘for no other purpose’; they aver that she is in California for the purpose of conferring with her attorneys, to the end of recovering from said Gold and Needleman and defeating the property interests assigned by her to them as fees for legal services, and for the purpose of employing said hearing before the State Bar as a means of effecting the reconveyance of said property interests to her; if petitioner was in fact served with a subpoena directing her to appear before the State Bar, such service was not required in order to obtain her testimony in said proceeding; said service was requested by her solely for the purpose of attempting to defeat service of the summons and complaint upon her; the allegation of nonresidence in the certificate for assignment, attached to the petition, is with regard to residence in the district of the Santa Monica branch of the superior court ‘and does not relate to the claimed residence or non-residence of petitioner in the State of New York’; the statements of Harry M. Fain (in his affidavit relative to the subpoena) that Virginia Velkov ‘resides out of Los Angeles County, to wit, in the City and State of New York’ was based upon the statement of the State Bar to the attorneys for said Gold and Needleman; said statement of Harry M. Fain in his said affidavit ‘was not intended to be and is not an averment of legal residence or domicile, but is merely the averment of a fact of physical status preliminary to obtaining a subpoena duces tecum re deposition, incident to procurement of her deposition at the earliest possible date’; said motion to quash the service of summons and subpoena was made upon written motion and affidavit, and the denial of the motion was after a hearing and the taking of evidence; the attorney for petitioner, in addition to urging the objections to said deposition as stated in the petition herein, urged objections based upon alleged lack of jurisdiction over the subject matter as set out in the transcript of the proceedings on the deposition, and the petitioner thereby submitted herself generally to the jurisdiction of said court; they deny that they threaten to proceed before the court to require her to comply with the subpoena, and they aver that her attorney agreed to appear in court on the following day, May 23rd, to obtain a determination of the objections to said deposition; they deny that the court has no jurisdiction over her for the reason she is a nonresident of California; deny she has no plain, speedy or adequate remedy in the ordinary course of law, and that she is exempt from process of California courts.

As a first affirmative defense, said parties in interest allege that petitioner has failed to meet the burden of proving that she is a resident of New York. They allege seven additional affirmative defenses, but in view of the conclusion hereinafter stated with respect to the first affirmative defense, it is not necessary to state the other allegations.

A nonresident of this state who comes into this state to testify as a witness in a judicial proceeding is afforded an immunity from service of civil process while in actual attendance at the proceeding and during such reasonable time as may be consumed in going to, and returning from, the place of trial. Gerard v. Superior Court, 91 Cal.App.2d 549, 552, 205 P.2d 109. In a proceeding in prohibition, all intendments are in favor of the action of the trial court, and the burden is on petitioner to show that the superior court is acting in excess of its jurisdiction. Franklin v. Superior Court, 98 Cal.App.2d 292, 294, 220 P.2d 8.

The judge of the superior court, in denying the motion herein to quash the service of the summons and subpoena, stated that he denied the motion upon the ground, among others, that he could not find as a fact that the petitioner is a bona fide resident of a state other than California. Petitioner argues that the court was in error in making that finding; there was no conflict in the evidence; it was admitted that petitioner was not a resident of California; and it was an abuse of discretion to deny the motion.

In support of the motion to quash the service, Mr. Prince, one of the attorneys who then represented this petitioner, filed his affidavit wherein he stated that ‘he knows of his own personal knowledge that said defendant, Virginia Velkov, is a resident of the State of New York and is a married woman and her husband resides in and is a resident of the State of New York.’ No affidavit was filed by the petitioner and she did not testify. With respect to Mr. Prince's affidavit, the judge stated in effect that the statement therein as to residence was a conclusion. The judge said that he did not know how Mr. Prince, who is a resident of California, could know of his own knowledge that petitioner acquired residence in another state, that Mr. Prince was stating that he knows petitioner's intention as to residence, and there is no declaration by petitioner of her intention as to residence. The judge also said the affidavit was not of very strong probative value.

The certificate for assignment and transfer of the case of Gold v. Velkov to the Santa Monica branch of the court, which certificate was made and verified by Mr. Horwin, one of the attorneys for plaintiffs therein, recited that ‘Both defendants [Velkov and Guiberson] are nonresidents, but when they live in this county they customarily reside in the district of the above Branch.’ The affidavit to secure a subpoena in connection with the deposition, which affidavit was made by Mr. Fain, one of the attorneys for plaintiffs in said case, recited that petitioner resides in New York, It does not appear that said certificate or affidavit was introduced in evidence, or brought to the attention of, or observed by, the judge. Even if they had been introduced in evidence, their evidentiary value on the question as to petitioner's residence was for the determination of the judge.

J. George Gold, one of the plaintiffs in the declaratory action, testified that he was one of the attorneys for petitioner in her action for separate maintenance against Samuel A. Guiberson, which action was filed in the Superior Court of Los Angeles County in October, 1950; a judgment therein was obtained in June, 1951; that in her verified complaint therein she alleged that she was a resident of California. He also testified that she owned a home in California, and lived in it, from 1946 until early in 1951; that, in conversations which he had with her prior to June 8, 1951, she said that she did not have any definite plans with respect to travel and residence; that in letters which he received from her, the last one of which was received in September, 1951, she indicated that she had not made up her mind as to whether she would continue her residence in Los Angeles or whether she would take up residence elsewhere; that if she ceased to be a resident of California it was after June 8, 1951; and that he had no personal knowledge of her present residence.

The burden was upon petitioner, upon the motion to quash service of summons and subpoena, to prove that she was not a resident of California. Under the evidence presented the judge could have concluded that she failed to carry the burden of such proof. As above stated, there was no affidavit of petitioner, and she did not testify. In her separate maintenance action, which terminated about a year before the present proceeding was commenced, she alleged that she was a resident of California. The evidence was legally sufficient to support a finding that petitioner was a resident of this state. It is not the function of this court to determine the weight of the evidence.

The petition for a writ of prohibition is denied, and the alternative writ is discharged.

PARKER WOOD, Justice.

SHINN, P. J., concurs. VALLÉE, J., did not participate.

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