WOODS v. JONES (1985)

At the direction of the Supreme Court, we issued an alternative writ of mandate to determine whether petitioner Eugene P. Woods is entitled to an order from this court directing respondent superior court to quash service of a summons served upon petitioner in Georgia where he now resides.   We conclude that respondent court did not err in denying the motion to quash.

Petitioner and real party in interest Helen J. Woods were married in San Francisco, California, in 1953.   After 18 years of marriage, they separated and on December 14, 1972, petitioner filed a petition in Alameda County Superior Court for dissolution of the marriage.   In the petition, petitioner stated that there was no property subject to disposition by the court.   An interlocutory judgment of dissolution was filed on February 26, 1973.   Real party was awarded support payments of $330 per month for three years.   On October 26, 1984, real party filed an action in California by which she seeks a one-half interest in that portion of petitioner's military retirement pension which accrued during the marriage.   In her complaint real party alleged that the omission of the military retirement pension from the interlocutory and final judgments in the dissolution was a mistake.

 Petitioner filed a motion to quash service.   In an affidavit in support of the motion, he stated that he last resided in California in 1977 and has no real or personal property in California nor does he do business in the state.   Real party opposed the motion but filed no affidavits.¹

Real party contends that the instant petition challenging the denial of the motion to quash is untimely.   Section 418.10, subdivision (c), of the Code of Civil Procedure provides that the defendant may petition an appropriate reviewing court for a writ of mandate upon the denial of his motion to quash.   The subdivision also provides that the petition may be filed “within 10 days after service upon him of a written notice of entry of an order of the court denying his motion, or within such further time not exceeding 20 days as the trial court may for good cause allow, and before pleading․”

 The record before this court reveals that the order denying the motion to quash was filed on March 7, 1985.   The record, however, does not reveal that there was ever service of a written notice of entry of the order or even that there was entry of the order in the minutes of the superior court.   Real party argues that the order was effectively served at the hearing on March 7, 1985, when the attorney for petitioner presented the court with an order to be signed.   We cannot agree.   The statute is specific in starting the time with service of “notice of entry.”   Given the short period in which a petition can be filed, it is important that the point at which the time period starts running be determinable.   Mere knowledge of the order is ineffective to start the time running.  (Cf. Okuda v. Superior Court (1983) 144 Cal.App.3d 135, 137–138, 192 Cal.Rptr. 388.)

 Timeliness of a petition for mandate where no statute governs is determined by principles of laches.  (Peterson v. Superior Court (1982) 31 Cal.3d 147, 163, 181 Cal.Rptr. 784, 642 P.2d 1305.)  “Laches requires an unreasonable delay in filing the petition plus prejudice to real party.”   (Ibid. ).  Here the delay was not unreasonable since the petition was filed within the time in which the trial court could have extended the time to petition.   It appears from remarks made at the hearing on the motion to quash that the court expected a petition to be filed and considered that such a petition would present issues appropriate for resolution by a reviewing court.   Apparently petitioner's counsel believed that when respondent court specified in the order that he had 30 days to answer, he was also being given 30 days to file a petition.   Whether that belief was warranted is a matter we need not decide.   The 10-day period for petitioning the court never started to run and the petition, having been filed within a reasonable time, may be considered on its merits by this court.

Petitioner's contacts with California in the past were indisputably of a nature which confers personal jurisdiction.   He resided in the state, married here, accrued his pension rights here, received a portion of the benefits here and sought the aid of California courts to dissolve the marriage.   Petitioner contends, however, that these contacts occurred too long ago to have significance to personal jurisdiction today.   The Supreme Court in Cornelison v. Chaney (1976) 16 Cal.3d 143, 148, 127 Cal.Rptr. 352, 545 P.2d 264, articulated an approach to evaluating the significance of contacts of nonresident defendants which we consider appropriate in the instant case.   “[A]s the relationship of the defendant with the state seeking to exercise jurisdiction over him grows more tenuous, the scope of jurisdiction also retracts, and fairness is assured by limiting the circumstances under which the plaintiff can compel him to appear and defend.  [Fn. omitted.]  The crucial inquiry concerns the character of defendant's activity in the forum, whether the cause of action arises out of or has a substantial connection with that activity, and upon the balancing of the convenience of the parties and the interests of the state in assuming jurisdiction.”

 The contacts of petitioner with California mentioned above, while ending approximately eight years before suit was filed, had a direct and substantial connection with the subject matter of this action.   The cause of action itself arose out of the failure to list the pension benefits in the dissolution action.   Petitioner is, of course, still receiving these benefits, allegedly the property of a California resident and is thus causing an effect in California.   This present contact with California, while perhaps too tenuous standing alone to confer jurisdiction (see Sibley v. Superior Court (1976) 16 Cal.3d 442, 446, 128 Cal.Rptr. 34, 546 P.2d 322), is an additional consideration in determining whether the contacts with California in their totality are sufficient to make the exercise of jurisdiction reasonable.

We do not perceive any unfairness to petitioner in requiring him to appear in this action.   He petitioned to dissolve his marriage in California and declared that there was no community property to divide.   Had he listed his pension benefits as community property, the division would have been made at that time in the dissolution action applying California community property law.   If a mistake is to be corrected now in a separate action, it is appropriate that the correction be made by California courts.

We are not holding that the jurisdiction of the dissolution court continued.   (See Henn v. Henn (1980) 26 Cal.3d 323, 332, 161 Cal.Rptr. 502, 605 P.2d 10.)   We merely hold that petitioner's California contacts, though largely in the past, were of a nature and quality that support the exercise of personal jurisdiction in this action.

The peremptory writ is denied and the alternative writ is discharged.

FOOTNOTES

1.   Real party filed a declaration in this court attached to her return in which she sets forth facts which are relevant to the motion to quash.   The question before us is whether substantial evidence supports the finding of the trial court on the issue of jurisdiction.  (In re Marriage of Lontos (1979) 89 Cal.App.3d 61, 71, 152 Cal.Rptr. 271.)   We, therefore, have not considered this declaration in reviewing the order denying the motion to quash.

ANDERSON, Presiding Justice.

POCHÉ and CHANNELL, JJ., concur.