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Court of Appeal, First District, Division 4, California.

Frank J. JAVOREK et al., Petitioners, v. SUPERIOR COURT, COUNTY OF MONTEREY, Respondent; Jack Bradford LARSON, Sr., et al., Real Parties in Interest.

Civ. 35988.

Decided: May 22, 1975

Nagle, Vale, McDowall & Cotter, Vernon V. Vale, San Mateo, for petitioners. Holbrook & Va Noy, James G. Van Noy, Jr., Salinas, for real party in interest, Jack Larson, Sr. Hardy, Erich &Brown, Anthony D. Osmundson, Sacramento, for real parties in interest, Jack Larson, Jr., Juanita Marie Searle and Joel Mark Larson.

Petitioners here seek a writ of mandate commanding respondent court ‘to dismiss [this] action for lack of jurisdiction, quash service of the Summons for lack of personal jurisdiction, to quash the levy of the Writ of Attachment and Garnishment, to discharge and vacate the Attachment and/or to stay or dismiss the action on the grounds of inconvenient forum.’ The basic question presented by this petition is whether the attachment of a liability insurer's obligation to defend and indemnify constitutes a valid basis for jurisdiction over a nonresident insured.

Real parties in interest, Jack Larson, et al., filed a complaint in Monterey County Superior Court for personal injuries and wrongful death against petitioners Frank J. Javorek and Bonita Rae Javorek, and against their codefendants Marian Elizabeth Brice, Jennie Catherine Bucks, El Estero Motors, a corporation, and Does 1 to 10 inclusive.

Real parties in interest are residents of California. Petitioners Frank and Bonita Javorek and codefendants Brice and Bucks are residents of Oregon. Codefendant El Estero Motors is a California corporation.

The summons was not personally served on petitioners, nor have they appeared generally in this action. Apparently the complaint and summons were mailed to all defendants pursuant to Code of Civil Procedure section 415.40.

The Javoreks had an automobile liability insurance policy issued to them in Oregon by State Farm Mutual Automobile Insurance Company, an Illinois corporation which does business in California.

On July 22, 1974, at the application of real parties in interest, respondent court issued a Writ of Attachment against all property of petitioners in Sonoma County, ‘as per CCP 537.3(c), including the contract obligations of State Farm Mutual Automobile Insurance Company (State Farm) to defend and indemnify each and/or both of these defendants against a debt owing to each and/or all of the plaintiffs.’

Petitioners appeared specially and filed a Notice of Exception to Sufficiency of Individual Sureties and a Notice of Motion to Discharge Attachment Improperly Issued. Respondent court denied the Motion to Discharge Attachment.

Petitioners then filed a ‘Motion to Quash Service of Summons for Lach of Personal Jurisdiction, Motion to Quash Attachment, and Motion to Stay or Dismiss Action on Grounds of Inconvenient Forum.’ These motions were denied.

The only facts before the court are those alleged in the complaint. The complaint alleges that on December 28, 1973, real party in interest Jack Larson and his wife Juanita were driving on Oregon State Route 20 when their car collided with two other cars, one owned by petitioners Frank and Bonita Javorek and driven by Frank Javorek; the other owned by defendant Brice and driven by defendant Bucks. The collision proximately caused the death of Juanita Larson and serious bodily injury to Jack Larson.

The complaint seeks damages for the wrongful death of Juanita Larson and for the medical expenses, pain and suffering and loss of income of Jack Larson.

The complaint also alleges that the injuries suffered were proximately caused by the defective manufacture or design of the Renault automobile in which the Larsons were riding, and names as defendants in those causes of action, El Estero Motors, a California corporation.


Is the Obligation of the Insurer Subject to Attachment Under California Garnishment Laws?

The question of whether a liability insurer's obligation to defend constitutes a valid basis for jurisdiction over the insured has been a controversial one ever since the New York Court of Appeals ruled on the issue in Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312.1 The problem has been considered only once in California, in the case of Turner v. Evers, 31 Cal.App.3d Supp. 11, 107 Cal.Rptr. 390, Appellate Division of the Sacramento Superior Court.

Seider v. Roth

The plaintiffs in Seider were residents of New York who were injured in an automobile accident in Vermont, allegedly through the negligence of defendant Lemiux, a resident of Quebec. Lemiux had purchased a liability insurance policy in Canada from the Hartford Accident and Indemnity Company, a corporation doing business in New York. Under New York's attachment statute, the plaintiff attached the contractual obligation of Hartford to defend and indemnify Lemiux as a ‘debt’ owed him by Hartford, a New York resident.

A majority of the court upheld the attachment as a valid basis for exercise of quasi in rem jurisdiction. The court did not consider the constitutional aspects of the exercise of jurisdiction, but stated that ‘[t]he whole question . . . is whether Hartford's contractual obligation to defendant is a debt or cause of action such as may be attached.’ (17 N.Y.2d 111, at p. 113, 269 N.Y.S.2d 99, at p. 101, 216 N.E.2d 312, at p. 314.) Noting that the policy required Hartford to defend Lemiux in any automobile negligence action, and to indemnify him for any judgment rendered against him, the court concluded that as soon as the accident occurred there was imposed on Hartford a contractual obligation which should be considered a ‘debt’ within the meaning of New York's attachment statute.

The majority found support for its conclusion in Matter of Riggle, 11 N.Y.2d 73, 226 N.Y.S.2d 416, 181 N.E.2d 436. There, Mabel Wells, a New York resident, had been injured in Wyoming by Riggle, a resident of Illinois. In order to sue Riggle's estate, Mrs. Wells sought to have appointed a New York administrator of Riggle's New York property, which consisted solely of ‘the personal obligation of an indemnity insurance carrier to defend him.’ (11 N.Y.2d at p. 76, 226 N.Y.S.2d at p. 417, 181 N.E.2d at p. 437.) The New York Court of Appeals had concluded that the insurer's obligation was a ‘debt’ owed to the insured and therefore qualified as ‘personal property’ sufficient to confer jurisdiction under the Surrogate's Court Act. The majority in Seider reasoned that if the contractual obligation of the insurance company constitutes a ‘debt’ to the insured which can be administered as an estate, it also could be attached as a basis of quasi in rem jurisdiction. (17 N.Y.2d at p. 114, 269 N.Y.S.2d 99, 216 N.E.2d 312.)

Three of the seven members of the court dissented, arguing that the obligation of the insurer is a ‘contingent undertaking which does not fall within the definition of attachable debt contained in [the attachment statute] . . ..’ (17 N.Y.2d at p. 115, 269 N.Y.S.2d at p. 103, 216 N.E.2d at p. 315.) The dissent also stated that ‘to base jurisdiction on the mere existence of an automobile liability policy, even though the promises in it are not yet due, is to allow a direct action against the insurer,’ and emphasized that ‘where the grounds to obtain jurisdiction are tenuous,’ the court should refrain from approving a ‘direct action’ against the insurer in ‘the guise of ‘in rem’ jurisdiction over a nonresident motorist . . ..' (17 N.Y.2d at p. 117, 269 N.Y.S.2d at p. 105, 216 N.E.2d at p. 317.)

Simpson v. Loehmann

Slightly more than one year later, the New York court was faced with the identical issue in the case of Simpson v. Loehmann, 21 N.Y.2d 305, 287 N.Y.S.2d 633, 234 N.E.2d 669, motion for reargument denied 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319. In Simpson, a New York infant was injured in Connecticut when cut by the propeller of a boat owned by the defendant, a Connecticut resident. The plaintiffs (the infant and his father) were unable to obtain personal jurisdiction over the defendant, but attached a liability insurance policy issued to him by the Insurance Company of North America, a Pennsylvania corporation doing business in New York.

The defendant moved to vacate the attachment, raising a number of constitutional issues (21 N.Y.2d at p. 306, 287 N.Y.S.2d 633, 234 N.E.2d 669), and requesting that the court reconsider its holding in Seider. Although the composition of the court had changed since Seider was decided, a majority of four voted to uphold the exercise of jurisdiction.

One question which had not been discussed by the New York court in either Seider or Simpson was whether the defendant, by appearing to defend the action on its merits, thereby subjected himself to in personam jurisdiction and was personally liable to the plaintiff for any judgment in excess of the limits of his insurance policy. This issue was clarified in the per curiam opinion of the New York court which denied the motion for reargument in Simpson. The court quoted the statement from Simpson 21 N.Y.2d at p. 310, 287 N.Y.S.2d at pp. 636–637, 234 N.E.2d at p. 671 ‘that neither the Seider decision nor the present one purports to expand the basis for in personam jurisdiction in view of the fact that the recovery is necessarily limited to the value of the asset attached . . .. For the purpose of pending litigation, which looks to an ultimate judgment and recovery, such value is its face amount and not some abstract or hypothetical value.’

The court then went on to say ‘[t]his, it is hardly necessary to add, means that there may not be any recovery against the defendant in this sort of case in an amount greater than the face value of such insurance policy even though he proceeds with the defense on the merits.’ (21 N.Y.2d 990 at p. 991, 290 N.Y.S.2d 914 at p. 916, 238 N.E.2d 319 at p. 320.)

Thus, under Simpson, the out-of-state defendant is not forced to choose between remaining outside the state and risking a default judgment (and, in this type of case, failing to comply with his contractual obligation to cooperate with his insurer in the defense to the suit) and defending on the merits and thereby exposing himself to personal liability for a judgment which exceeds his policy limit. The action remains quasi in rem despite the defendant's ‘general’ appearance on the merits.

Turner v. Evers

At the time Turner v. Ever, 31 Cal.App.3d Supp. 11, 107 Cal.Rptr. 390 was decided, it was the first case outside of New York which followed Seider v. Roth.2 The Turners, residents of California, travelled to Tacoma, Washington, where they had their automobile serviced at a Mobil Oil Station operated by defendant Evers. The Turners alleged that as a result of Evers' failure to properly service their car, it became totally inoperable and they sustained damages of $685. They sought to recover both compensatory and punitive damages (the total recovery not to exceed $5,000) on three separate theories: breach of contract, fraud, and negligence.

Evers was insured by the Travelers Indemnity Company. The plaintiff attached Traveler's obligation to defend and indemnify Evers, and served a summons on Evers by mail in Tacoma. Evers moved to quash, contending that the court lacked jurisdiction over him personally and over his property. The municipal court granted the motion, and the Turners appealed.

The appellate division of the superior court characterized Evers' motion as one to quash the attachment and reversed, holding that the exercise of quasi in rem jurisdiction over him was proper. Judge Goldberg discussed the problem in two parts: ‘(1) does the state have jurisdiction? and (2) if it does, has it provided a mode of exercising it?’ (31 Cal.App.3d Supp. at p. 13, 107 Cal.Rptr. at p. 391.) In holding that the court did have jurisdiction, he relied on Code of Civil Procedure section 410.10 and on Minichiello v. Rosenberg, 2 Cir., 410 F.2d 106. The opinion then examines the relevant provisions of California garnishment law (Code Civ.Proc. § 537 et seq.) and holds that the exercise of the jurisdiction is proper.

In the instant case, the writ of attachment describes the property attached as ‘all property of each defendant as per CCP 537.3(c), including the contract obligations of State Farm Mutual Automobile Insurance Company . . . to defend and indemnify . . . these defendants against a debt owing to . . . the plaintiffs. . . .’

Code of Civil Procedure section 537 states: ‘The plaintiff, in an action specified in Section 537.1, at the time of issuing the summons, or at any time afterward, may have the property specified in Section 537.3 of a defendant specified in Section 537.2 attached in accordance with the procedure provided for in this chapter, as security for the satisfaction of any judgment that may be recovered, unless the defendant gives security to pay such judgment, as provided for in this chapter.’

The defendants described in section 537.2 include ‘any person not residing in this state’ (§ 537.2(d)). Section 537.3(c) states that ‘all property’ of such a defendant is subject to attachment.

Since the Javoreks are defendants who do not reside in this state, ‘all property’ of theirs in California is therefore subject to attachment under Code of Civil Procedure section 537.3(c). The question before the court is whether the ‘contract obligation’ purportedly attached by the writ constitutes ‘property’ within the meaning of Code of Civil Procedure section 537.3.

The Javorek's insurance policy states that State Farm agrees with the insured ‘[I]n consideration of the payment of the premium . . . to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury sustained by other persons, and, (B) property damage, caused by accident arising out of the ownership, maintenance or use, including loading or unloading, of the owned motor vehicle; and to defend, with attorneys selected by and compensated by the company, any suit against the insured alleging such bodily injury or property damage and seeking damages which are payable hereunder even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.’ (Emphasis added.)

The obligation of the insurance carrier to indemnify and defend has been characterized by the New York court as a debt owing to the insured defendant. (Seider v. Roth, supra, 17 N.Y.2d at p. 113, 269 N.Y.S.2d 99, 216 N.E.2d 312; Simpson v. Loehmann, supra, 21 N.Y.2d at p. 310, 287 N.Y.S.2d 633, 234 N.E.2d 669.) Such a characterization is not illogical, since a debt need not necessarily be a fixed sum of money due at a specified time; but may consist of ‘any duty to respond to another in money, labor, or service.’ (Black's Law Dictionary (4th ed. 1968) quoting U. S. Sugar Equalization Board v. P. De Ronde & Co., 3 Cir., 7 F.2d 981, 984.)3

If the insurer's obligation is thought of as a debt, it is clearly attachable as ‘property’ of a nonresident defendant. Code of Civil Procedure section 542, which describes the means by which the sheriff must execute the writ of attachment, states in subsection 5 (referring to attachment of intangibles), that ‘debts . . . credits, judgments, and other personal property not capable of manual delivery . . . shall be attached by leaving with the persons owing such debts, or having in his possession, or under his control, such credits and other personal property . . . a copy of the writ . . ..’ (Emphasis added.)

The insurer's obligation to indemnify and to defend both become enforceable at the moment the suit against the insured is filed. (Cf. Crisci v. Security Ins. Co., 66 Cal.2d 425, 58 Cal.Rptr. 13, 426 P.2d 173; Richardson v. Employers Liab. Assur. Corp., 25 Cal.App.3d 232, 239, 102 Cal.Rptr. 547.) In fact, Crisci implies that the insurance company's liability can commence prior to the filing of a valid action. The court stated, 66 Cal.2d at page 429, 58 Cal.Rptr. at page 66, 426 P.2d at page 176: ‘. . . it is common knowledge that one of the usual methods by which an insured receives protection under a liability insurance policy is by settlement of claims without litigation; that the implied obligation of good faith and fair dealing requires the insurer to settle in an appropriate case although the express terms of the policy do not impose the duty . . ..’

Furthermore, neither the fact that the amount of money ultimately to be paid by the insurer is undetermined until a final judgment is obtained by the plaintiff, nor the fact that, if the plaintiff's suit fails, the insurer's obligation to indemnify never materializes, renders the duty to indemnify so contingent that it cannot be denominated an attachable debt. ‘Mere uncertainty in the amount of the debt at the time of levy does not defeat the garnishment if the amount of the obligation is susceptible of measurement by facts then known, or by subsequent events.’ (Brunskill v. Stutman, 186 Cal.App.2d 97, 104, 8 Cal.Rptr. 910, 915.) Thus, the obligation to indemnify is a fixed one, from which the insurer may be relieved only by assertion of a valid contractual defense against the insured. The obligation to defend is even broader than the obligation to indemnify. (Fireman's Fund Ins. Co. v. Chasson, 207 Cal.App.2d 801, 804, 24 Cal.Rptr. 726.) It is enforceable regardless of the outcome of the suit, and, in the language of the policy itself, ‘even if any of the allegations of the suit are groundless, false or fraudulent.’

Characterization of the insurer's obligation as debts is not necessary to uphold the attachment, however. The correlative rights of the insured parties—the right to be indemnified for any sum they must pay in damages and to be defended by the insurer in any suit arising under the policy—may properly be considered property rights which are subject to attachment.4 As pointed out by Judge Goldberg in Turner v. Evers, supra, 31 Cal.App.3d Supp. 11, 107 Cal.Rptr. 390, the word ‘property’ has been given a very broad interpretation in the area of garnishment law.5 (Ponsonby v. Suburban Fruit Lands Co., 210 Cal. 229, 291 P. 167, which interpreted an earlier version of Code of Civil Procedure section 537, permitting attachment of ‘all property’ of a nonresident in a tort action.) The court there held that ‘property . . . when unqualified . . . is sufficiently comprehensive to include every species of estate, both real and personal, whether choate or inchoate . . . ‘including all that is one's own, whether corporeal or incorporeal.’' (210 Cal. at p. 232, 291 P. at p. 168.)

The contractual right of the Javoreks to be defended and indemnified by State Farm certainly come within this comprehensive definition of property.

The type of property right which is not attachable in California is one which has not yet accrued. In Hustead v. Superior Court, 2 Cal.App.3d 780, 83 Cal.Rptr. 26, the court held that a garnishee could not be required to pay over rental payments which would only accrue in the future. The court there stated that ‘[s]ince the obligation to pay future installments of rent is generally dependent upon the continuance of possession and enjoyment of the premises, and since it cannot be determined prospectively whether there will be any interference with that possession, the obligation of the tenant to the landlord . . . cannot be reached by garnishment.’ (2 Cal.App.3d at pp. 786–787, 83 Cal.Rptr. at p. 30.) As noted above, however, the insured's rights to indemnity and defense accrue as soon as the suit is filed, even though the ultimate liability of the insurer is unknown until after the suit has been concluded. Therefore, the attachment is not invalid on the grounds that the defendant's ‘rights' to indemnity and defense are incapable of prospective determination.

Probate Code section 721 lends support to the contention that the rights of an insured are ‘property.’ That section provides that a civil claim may be made against the estate of a decedent ‘to establish, to the limits of the insurance protection only, a liability of the decedent for which the decedent was protected by liability insurance.’ (Prob.Code, § 721(a).) Such a claim may be filed in the superior court of a county in which administration may be had under Probate Code section 301, including ‘any county in which [a nonresident decedent] leaves estate.’ The broad interpretation given to ‘property,’ above, would also support characterization of an insurer's obligation as an ‘estate’ sufficient to confer probate jurisdiction. Such an interpretation is particularly appropriate in view of the Legislature's intent, manifested in Probate Code section 721, to facilitate claims of California residents against nonresident decedents by allowing them to proceed directly against the insurer, without the burden of making a claim against the deceased's estate.

For the foregoing reasons, it should be concluded that the Javoreks' rights to indemnity and defense under their policy with State Farm were ‘property’ which were properly attached.


Is the Attachment a Constitutional Basis For the Exercise of Jurisdiction?

Section 410.10 of the Code of Civil procedure provides: ‘A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.’ The order of the trial court acknowledges that ‘the jurisdiction of this Court is not in personam, but is rather, quasi in rem and arises solely out of the service of the Writ of Attachment heretofore issued by this Court.’

It should be noted at the outset that since the action is in rem, and not in personam, the exercise of jurisdiction is permissible only to the extent of the limits of the insurance policy, and the defendants must be allowed to appear specially to defend on the merits without subjecting themselves to in personam jurisdiction. (See Simpson v. Loehmann, supra, 21 N.Y.2d 990 at p. 991, 290 N.Y.S.2d 914, 238 N.E.2d 319; Minichiello v. Rosenberg, supra, 410 F.2d at p. 111; Rest., Judgment, § 40.) Failure to impose this restriction on the exercise of jurisdiction would subject the plaintiff to personal liability for any judgment in excess of the policy limits, and would be tantamount to asserting in personam jurisdiction over a nonresident defendant whose only contacts with this state are that his insurer does business here, and that he was involved in an accident outside California with a California resident. This would clearly be a violation of due process, since these single contacts do not approach the ‘minimum contacts' necessary to assert in personam jurisdiction without offending ‘traditional notions of fair play and substantial justice.’ (Internat. Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95; Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283.) It should also be noted that any application of the Seider doctrine must be limited to plaintiffs who are residents of the forum state, since, without this connection, the state lacks any meaningful contact with the suit which could conceivably justify exercise of jurisdiction. (See Farrell v. Piedmont Aviation, Inc., 2 Cir., 411 F.2d 812.)

Under Code of Civil Procedure section 410.10, the competence of California courts to exercise jurisdiction is as broad as the due process clause itself. Therefore, the exercise of jurisdiction quasi in rem over the contractual rights and obligations arising under the petitioner's insurance policy may be upheld if it is constitutional, i. e., if it does not result in a denial of due process. The Seider procedure has never been held unconstitutional. (Farrell v. Piedmont Aviation, Inc., supra, 411 F.2d 812, cert. den. 396 U.S. 840, 90 S.Ct. 103, 24 L.Ed.2d 91; Minichiello v. Rosenberg, supra, 410 F.2d 106, cert. den. 396 U.S. 844, 90 S.Ct. 69, 24 L.Ed.2d 94; Victor v. Lyon Associates, Inc., 21 N.Y.2d 695, 287 N.Y.S.2d 424, 234 N.E.2d 459, appeal dismissed for want of a substantial federal question 393 U.S. 7, 89 S.Ct. 44, 21 L.Ed.2d 8.)

Judge Friendly's opinion in Minichiello specifically upheld the constitutionality of the procedure; on the basis of the California statute and the Minichiello decision alone, we believe that the ruling of the trial court should be affirmed.

We find a further basis for justification of the exercise of jurisdiction in this case in Atkinson v. Superior Court, 49 Cal.2d 338, 316 P.2d 960. The plaintiffs in that case were two groups of musicians who contended that certain royalty and other payments were improperly paid into a trust fund instead of being paid directly to the individual as part of his salary. The defendants were the American Federation of Musicians and the employers, who were personally served in California, and the trustee, who was served in New York. The question before the court was whether California had quasi in rem jurisdiction over the employers' obligation to make payments to the trustee. The court, in an opinion by Chief Justice Traynor, stated that: ‘. . . in light of the fact that an intangible may be subjected to the jurisdiction of the court without personal jurisdiction over all of the parties involved for some purposes but not for others, we conclude that the solution must be sought in the general principles governing jurisdiction over persons and property rather than in an attempt to assign a fictional situs to intangibles.’ (49 Cal.2d at p. 345, 316 P.2d at p. 964.) (Emphasis added.) It went on to hold that in the case of intangibles other than corporate stock, ‘jurisdiction must be determined in the light of the totality of contacts with the state involved.’ (49 Cal.2d at p. 347, 316 P.2d at p. 965.) Noting that the controversy arose out of work performed by the plaintiffs in California, that the employers were in California, and that the federation was before the court, Justice Traynor concluded that jurisdiction over the trustee's claim to the payments was appropriate.

Atkinson is distinguishable from this case in that the plaintiffs there sought to litigate the nonresident's interest in the very property in question, whereas here, the plaintiffs have attached the property only as potential satisfaction of their personal claim against the defendants. The Atkinson court held, however, that this distinction was not relevant to a determination of whether the obligation could serve as a basis of quasi in rem jurisdiction. (49 Cal.2d at p. 346, 316 P.2d 960.)

The crux of Atkinson is that it rejects the traditional approach of determining the fictional ‘situs' of intangible property as a basis for quasi in rem jurisdiction, and emphasizes instead ‘the bearing that local contacts have to the question of over-all fair play and substantial justice.’ (49 Cal.2d at p. 345, 316 P.2d at p. 965.) In adopting the ‘contacts' test, which has traditionally been used to determine the validity of in personam jurisdiction, the court was foreshadowing a trend to abolish the distinction between jurisdiction in personam and quasi in rem.6

The ‘contacts' to be considered by the court include those of both the nonresident defendant and the intangible itself with the forum state. The obligation in this case arises from purchase of a policy in Oregon which was issued in Oregon; the rights of petitioners to indemnity and defense materialized after the accident which occurred in Oregon. While California has no interest in the relationship between the insured and the insurer, it does have an interest in the policy obligation, since it represents a guarantee that the plaintiff will be compensated for injuries proved to be caused by the insured, at least up to the policy limits. Furthermore, California has a strong interest in providing a forum for its resident plaintiffs, since California must provide necessary services to the plaintiffs and protect and care for them in the event of indigency. (See Rintala v. Shoemaker, supra, 362 F.Supp., at p. 1052.)

The California Supreme Court has consistently sought, in its conflict of law decisions, to protect the rights and interests of California plaintiffs. (Reich v. Purcell, 67 Cal.2d 551, 554, 63 Cal.Rptr. 31, 432 P.2d 727; Grant v. McAuliffe, 41 Cal.2d 859, 867, 264 P.2d 944; Emery v. Emery, 45 Cal.2d 421, 428, 289 P.2d 218; Hurtado v. Superior Court, 11 Cal.3d 574, 584, 114 Cal.Rptr. 106, 522 P.2d 666.) We hold that, in keeping with this tradition, the injured plaintiff's residence in this state is a ‘contact’ sufficient to justify the exercise of jurisdiction under the Atkinson ‘over-all fairness' rule, and that the exercise is therefore constitutional. Any severe hardship encountered by requiring the defendant (and realistically, the insurance) company, to defend in this state could be avoided by dismissal on grounds of inconvenient forum (Code Civ.Proc. § 410.30; see discussion, infra). This solution would, as urged by Justice Traynor, narrow the gap between the tests of jurisdiction and the tests of forum non conveniens, and place the emphasis on ‘evaluation of the real factors that should determine jurisdiction.’ (Traynor, Is This Conflict Really Necessary?, supra, 37 Texas L.Rev., at p. 663.)


Did the Trial Court Abuse Its Discretion By Refusing to Dismiss the Action On the Grounds of Inconvenient Forum (Code Civ.Proc. §§ 418.10, 410.30)?

Petitioners contend that the trial court erred in denying their motion to dismiss the action on grounds of inconvenient forum. Such a motion is authorized by Code of Civil Procedure section 418.10(a)(2) which permits a defendant who challenges the jurisdiction of the court over him ‘to object on inconvenient forum grounds to the court's exercising its jurisdiction over him if his challenge to jurisdiction should be denied.’ (Approved Judicial Council Comment to Code Civ.Proc. § 418.10.)

The doctrine of forum non conveniens has been codified in Code of Civil Procedure section 410.30 which states: ‘When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.’

Petitioners claim that ‘where the accident happened in Oregon, all potential defendants are residents of Oregon, where the investigating officers are in Oregon, where the accident facts are peculiar to the Oregon climate, there the vehicles are located in Oregon and must be inspected in Oregon, and where all witnesses except the plaintiff are in Oregon, that it is an abuse of discretion to deny a motion to dismiss the action on the ground of inconvenient forum.’

Real parties in interest argue, however, that California is a convenient forum because (1) Juanita Larson was employed in Salinas and local evidence will therefore be relevant to damages arising from the wrongful death claims; (2) Jack Larson, Sr., was treated for his injuries in California by two California doctors whose testimony will be relevant to assessment of the extent of his injuries; (3) Jack Larson, Sr., was employed in Salinas prior to the accident and will need to rely on California witnesses and records to show loss of earnings and impairment of earning capacity. Real parties also state that, contrary to petitioners' assertions that all vehicles are in Oregon, the Larsons' Renault is located in Monterey County for evidentiary purposes.

Evidence on the liability issue is most easily available in Oregon; evidence on the nature and extent of plaintiff's damages is found in California.

‘Whether or not forum non conveniens shall be applied rests in the sound discretion of the trial court. Unless the balance weighs strongly in favor of the defendant, the plaintiff's choice of a forum will rarely be disturbed.’ (Great Northern Ry. Co. v. Superior Court, 12 Cal.App.3d 105, 110, 90 Cal.Rptr. 461, 465.) While California courts have stated that ‘a determination that a plaintiff is domiciled here would ordinarily preclude granting the defendant's motion for dismissal on the ground of forum non conveniens' (Goodwine v. Superior Court, 63 Cal.2d 481, 485, 47 Cal.Rptr. 201, 204, 407 P.2d 1, 4), they have not held, as New York courts have, that a forum non conveniens dismissal is never permissible if either plaintiff or defendant resides in the forum state (see Thomson v. Continental Ins. Co., 66 Cal.2d 738, 743, 59 Cal.Rptr. 101, 427 P.2d 765, and citations therein).

Use of a forum non conveniens dismissal may operate as a safety valve in mitigating hardship imposed upon a nonresident defendant by exercise of jurisdiction based on the Seider procedure. The case before the court is undoubtedly a classic example of the type that will arise under application of the procedure, since evidence of the accident is outside the forum, but evidence of the damages is within it. Thus, the decision to be made on this issue will have the same effect as a decision on whether or not to exercise jurisdiction. (See Atkinson v. Superior Court, supra, 49 Cal.2d 338, 316 P.2d 960.) As stated by Chief Justice Traynor in that case, the state's interest in providing a forum where its residents may redress their grievances should normally provide a sufficient basis for the exercise of jurisdiction. If the hardship imposed on the defendant by this result strongly outweighs the benefits of allowing the plaintiff to sue in California, the court may dismiss on the grounds of forum non conveniens.

The burden placed upon the petitioners-defendants in this case to defend in California is not so great as to compel a dismissal on the grounds of inconvenient forum. Since California and Oregon are adjacent states, the actual distances to be travelled are not excessive. Furthermore, the fact that one plaintiff, Jack Larson, has undergone medical treatment here, and that local evidence will be presented on all aspects of damages, provides strong support for the plaintiff's choice of forum. Therefore, it is concluded that the trial court did not abuse its discretion by denying petitioners' motion to dismiss on the grounds of inconvenient forum.

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


1.  See, e. g., Reese, The Expanding Scope of Jurisdiction Over Non-Residents—New York Goes Wild (1968) 35 Ins.Counsel J. 118; Note, Seider v. Roth, the Constitutional Phase (1968) 43 St. John's L.Rev. 58; Comment, Quasi in Rem Jurisdiction Based On Insurer's Obligation (1967) 19 Stanford L.Rev. 654; Stein, Jurisdiction by Attachment of Liability Insurance (1968) 43 N.Y.U.L.Rev. 1075; Rosenberg, One Procedural Genie Too Many Or Putting Seider Back Into Its Bottle (1971) 71 Colum.L.Rev. 660.

2.  Since Turner, a federal district court in Minnesota has followed Seider, holding that attachment of an insurer's obligation is permissible under Minnesota law and that the exercise of jurisdiction based on that attachment is not unconstitutional. (Rintala v. Shoemaker, D.C., 362 F.Supp. 1044.)

3.  Black's Law Dictionary (4th ed. 1968) includes the following definition of ‘debt.’‘The word is of large import, including not only debts by specialty, and debts of record, or judgments (Liberty Mut. Ins. Co. v. Johnson Shipyards Corporation, C.C.A.N.Y., 6 F.2d 752, 755; Schooley v. Schooley, 184 Iowa 835, 169 N.W. 56, 57, 11 A.L.R. 110; Bronson v. Syverson, 88 Wash. 264, 152 P. 1039, 1040, L.R.A.1916B, 993; Rosenberg v. Rosenberg, 152 Md. 49, 135 A. 840), but also obligations arising under simple contract, to a very wide extent; and in its popular sense includes all that is due to a man under any form of obligation or promise. McCrea v. First Nat. Bank, 162 Minn. 455, 203 N.W. 220; Aetna Ins. Co. v. Robertson, 126 Miss. 387, 88 So. 883, 890.’

4.  The court in Simpson refers to the ‘debt to the defendant’ as a ‘property right.’ (21 N.Y.2d at p. 310, 287 N.Y.S.2d 633, 234 N.E.2d 669.)

5.  See also the definition of personal property in Code of Civil Procedure section 17: ‘The words ‘personal property’ include money, goods, chattels, things in action, and evidences of debt.'

6.  Li, Attorney's Guide to California Jurisdiction and Process (Cont.Ed.Bar 1970) § 3.5:‘The distinction between jurisdiction in personam and in rem or quasi in rem ‘requires the impossibility of thinking of property without an owner and compensation without payment’ by the person liable therefor, when the only factual difference is that in some cases a defendant is within the state but his property is not, and in other cases the reverse is true.‘. . .‘Ever since International Shoe Co. v. Washington (1945) 326 US 310 [66 S.Ct. 154, 90 L.Ed. 95] (see § 3.4) extended the states' jurisdiction beyond state boundaries, the categorical structure of proceedings in personam, in rem, and quasi in rem has been ripe for oblivion.’Judge Traynor has also stated: ‘It is time we had done with mechanical distinctions between in rem and in personam high time now in a mobile society where property increasingly becomes intangible and the fictional res becomes stranger and stranger. Insofar as courts remain given to asking ‘Res, res—who's got the res?,’ they cripple their evaluation of the real factors that should determine jurisdiction. They cannot evaluate the real factors squarely until they give up the ghost of the res. As they do so, the gap will narrow between the tests of jurisdiction and the tests of forum non conveniens.' (Traynor, Is This Conflict Really Necessary? (1959) 37 Texas L.Rev. 657, 663.)

CALDECOTT, Presiding Justice.

RATTIGAN and EMERSON,* JJ., concur.