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HALL v. UNIVERSITY OF NEVADA

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Court of Appeal, First District, Division 2, California.

Diane HALL et al., Plaintiffs and Appellants, v. UNIVERSITY OF NEVADA, a corporation, and State of Nevada, Defendants and Respondents.

Civ. 28689.

Decided: May 11, 1972

Bostwick & Rowe, Everett P. Rowe, San Jose, for plaintiffs-appellants. Bronson, Bronson & McKinnon, San Francisco, for defendants-respondents.

We have concluded that, in the absence of express consent to be sued in a foreign jurisdiction, one sovereign state is not subject to the in personam jurisdiction of another. Accordingly, we affirm the trial court's order quashing service of summons and complaint upon respondents University of Nevada and State of Nevada.

Plaintiffs-appellants filed suit in San Francisco Superior Court to recover damages for personal injuries arising from an accident in California in which their vehicle collided with a car owned by respondents and operated by their agent acting within the scope of his agency. In effecting service of process upon respondents, appellants utilized the California longarm statute (Veh.Code §§ 17450–17463) which permits substituted service of summons and complaint upon nonresident motorists.

Appellants concede, as they must, that under the well settled rule neither the state nor any of its agencies enjoying sovereign immunity can be sued unless consent is given to maintain the action against them (Innes v. McColgan (1942) 52 Cal.App.2d 698, 700, 126 P.2d 930; McPheeters v. Board of Medical Examiners (1946) 74 Cal.App.2d 46, 49, 168 P.2d 65; 45 Cal.Jur.2d, § 159, p. 512 et seq.); and that this general prohibition also extends to a tort action brought against the state either in its own courts or those of a sister state (57 Am.Jur.2d, § 24, p. 33). They insist, however, that (1) respondents have, by statute, expressly waived immunity, and/or (2) the requisite consent to waive immunity may be given impliedly, and that the operation of the Nevada automobile in California constituted such consent. For the reasons which ensue, we are compelled to reject both contentions.

Appellants' first argument is primarily based on Nevada Revised Statutes, section 41.031, which provides in pertinent part that ‘The State of Nevada hereby waives its immunity from liability and action and hereby consents to have its liability determined in accordance with the same rules of law as are applied to civil actions against individuals and corporations . . ..’ (Emphasis added.)

Appellants' reliance on the cited code section is obviously misplaced. It is evident that the present case is not concerned with the extent and conditions of a potential tort liability to which respondents may be subjected in a proper court, but solely with a jurisdictional issue, namely: whether or not respondents have consented to the jurisdiction of the California court. Therefore, the relevant code section is section 13.025, which, at the time of the accident, read as follows:1

‘1. Except as provided in subsection 2, any action or proceeding against the State of Nevada shall be brought in a court of competent jurisdiction in Ormsby County.

‘2. Any tort action against the State of Nevada which is based on the alleged negligence of a state officer or employee and in which the damages sought to be recovered are for physical injury or death may be brought in a court of competent jurisdiction in the county where the injury occurred.’ (Emphasis added.)

In interpreting the above code section, we adhere to the rule that statutes conferring the right to sue the state, being in derogation of the state's sovereign capacity must be strictly construed (County of Los Angeles v. Riley (1942) 20 Cal.2d 652, 662, 128 P.2d 537; Yasunaga v. Stockburger (1941) 43 Cal.App.2d 396, 400–401, 111 P.2d 34; 45 Cal.Jur.2d, § 160, p. 515 et seq.; 57 Am.Jur.2d, § 70, p. 80). The statutory language granting consent to such suits must be explicitly and expressly announced (Elizabeth River Tunnel District v. Beecher (1961) 202 Va. 452, 117 S.E.2d 685, 689).

A simple reading of the cited code section persuades us that the statute lacks the required express language to subject respondents to foreign in personam jurisdiction; and, under the foregoing authorities, such jurisdiction may not be established by implication. Our conclusion is further supported by section 228.170(1)2 of the Nevada Revised Statutes, which specifically requires that suits against the state be brought in Nevada, and by the interpretation of an analogous statute in State Tax Commission v. Kennecott Copper Corp. (10 Cir. 1945) 150 F.2d 905 (affd. 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862) where the court held that the statutory phrase of “any court of competent jurisdiction” did not, by implication, include the federal court sitting in the state, because before a state can be subjected to suit ‘the statute must use language which evidences a clear intent to submit to the jurisdiction of federal courts.’ (P. 907; emphasis added.)

Additionally, the statutory scheme as a whole leaves no doubt that the emphasized portion of section 13.025 contemplates suits merely within the boundaries of the State of Nevada. This is evidenced by the complete lack of statutory provisions which would set up procedures for out-of-state suits, such as rules for venue, service of process, and other procedural requirements (cf. Ford Motor Co. v. Dept. of Treasury (1945) 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389).

Appellants' second argument is simply an attempt to extend the California long-arm statute.3

While such an argument has a certain appeal to one's sense of logic, it begs the fundamental question, i. e., whether one state may legislate away the sovereignty of a sister state.

Clearly it may not, for, as we have seen, state sovereignty may be waived only by a clear and unambiguous statutory enactment of the state Legislature concerned which directs the conditions, mode and manner of the purported waiver (Ford Motor Co. v. Dept. of Treasury, supra; State of California v. Superior Court (1936) 14 Cal.App.2d 718, 722–723, 58 P.2d 1322; 81 C.J.S. States, § 214, p. 1304).

Appellants' reliance on People ex rel. Hoagland v. Streeper (1957) 12 Ill.2d 204, 145 N.E.2d 625 and State v. Holcomb (1911) 85 Kan. 178, 116 P. 251 is patently misplaced. In each of those cases the dispute revolved around and concerned property located in the forum state (in Streeper injunctive relief was asked, while Holcomb involved the state taxation of property); and in each case the court simply adhered to the long-established principle that a state has in rem jurisdiction over the property located in its territory. In People ex rel. Hoagland v. Streeper, supra, the court was eager to point out that where the property of another state is properly before the court, the court will proceed to discharge its duty concerning the property but the state may not be compelled to come in as a party. (Pp. 630–631 of 145 N.E.2d.)

Although no exact case has been presented to us nor have we found any, the closest in point is Paulus v. State of South Dakota (1924) 52 N.D. 84, 201 N.W. 867. In that case defendant South Dakota owned and operated a coal mine in North Dakota. Plaintiff, a mine employee, suffered personal injuries and sued South Dakota in the court of North Dakota, contending that, by owning and operating the coal mine in North Dakota, defendant South Dakota impliedly waived its sovereignty and thereby consented to the jurisdiction of North Dakota.

Concluding that South Dakota could not, without its express consent, be sued in North Dakota, the court held that considerations of comity impelled it to refrain from exercising jurisdiction. The same considerations apply to the case at bar.

The order is affirmed.

FOOTNOTES

1.  In 1969 an act was passed repealing the requirement that actions against the state be brought in Ormsby County. This act, however, brought about only a change that suits against the state can be brought in any county of Nevada, and in no way constituted the required express consent to be sued in other states.

FN2. Section 228.170(1) provides that ‘Whenever the governor shall direct, or, in the opinion of the attorney general, to protect and secure the interest of the state it is necessary that a suit be commenced or defended in any court, the attorney general shall commence such action or make such defense. (2) Such actions may be instituted in any district court in the state, or in any justice's court of the proper county.’ (Emphasis added.).  FN2. Section 228.170(1) provides that ‘Whenever the governor shall direct, or, in the opinion of the attorney general, to protect and secure the interest of the state it is necessary that a suit be commenced or defended in any court, the attorney general shall commence such action or make such defense. (2) Such actions may be instituted in any district court in the state, or in any justice's court of the proper county.’ (Emphasis added.)

3.  The relevant sections of the long-arm statute provide as follows:‘§ 17451. Service of process on nonresident‘The acceptance by a nonresident of the rights and privileges conferred upon him upon him by this code or any operation by himself or agent of a motor vehicle anywhere within this state, or in the event the nonresident is the owner of a motor vehicle then by the operation of the vehicle anywhere within this state by any person with his express or implied permission, is equivalent to an appointment by the nonresident of the director or his successor in office to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against the nonresident operator or nonresident owner growing out of any accident or collision resulting from the operation of any motor vehicle anywhere within this state by himself or agent, which appointment shall also be irrevocable and binding upon his executor or administrator.‘§ 17453. Agreement on validity of process‘The acceptance of rights and privileges under this code or any operation of a motor vehicle anywhere within this state as specified in Section 17451 shall be a signification of the irrevocable agreement of the nonresident, binding as well upon his executor or administrator, that process against him which is served in the manner provided in this article shall be of the same legal force and validity as if served on him personally in this state.’

KANE, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.

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