Estwing Manufacturing Co. v. Superior Court , 128 Cal. App. 2d 259 ( 1954 )

KAUFMAN, J.

Petitioner prays that this court restrain the San Mateo Superior Court from further proceeding in an action in which petitioner has been named defendant on the ground that because petitioner, a foreign corporation, does not do business in California, it is not subject to the jurisdiction of respondent San Mateo Superior Court; petitioner also prays that this court compel the San Mateo Superior Court to vacate its order denying petitioner’s motion to quash the substituted service made on it.

Respondent David J. Callow filed a complaint in respondent superior court alleging that he was injured when a piece of metal from the head of a hammer which he was using flew off and imbedded itself in his arm; that he had received possession of the hammer from Schopke and Burke Lumber and Hardware Company; that the hammer had been negligently manufactured by petitioner. Petitioner is an Illinois corporation engaged in the manufacture of hammers and hatchets. Substituted service of summons was made on it through the Secretary of State who forwarded the summons to petitioner in Illinois. On August 27, 1954, after petitioner had appeared specially to contest the jurisdiction of the court, respondent superior court denied its motion to quash the substituted service.

Petitioner’s contention is that its motion to quash the substituted service should have been granted because there was no evidence before the superior court showing that the latter had jurisdiction over petitioner.

The evidence before the superior court (by depositions and affidavits) brought out the following facts: Petitioner has one factory which is located in Illinois; it maintains no office nor sales force in California; its products are sold only to wholesalers with whom it has no franchise agreements or other contracts; petitioner’s only solicitation of business from wholesalers consists in the mailing of its catalogue and price lists to the wholesalers who then mail their orders to petitioner ; petitioner then fills the orders and ships the products to the wholesaler; petitioner advertises in national trade and other magazines, but does no local advertising of its products; petitioner corresponds infrequently with its California wholesalers and has furnished advice on request concerning the promotion of petitioner’s products; petitioner has never qualified to do business in California, does not pay California taxes, does not list any office in California on its stationery or in its catalogues, or in any telephone or other directory; petitioner owns no property in California.

Whether a foreign corporation is doing business in a state so as to be amenable to its process has been held to be primarily a factual determination. As stated by our Supreme Court in West Publishing Co. v. Superior Court (1942), 20 Cal.2d 720, 728 [128 P.2d 777], “it is not any activity of a corporation in a state other than that of its residence which will justify the conclusion that it is ‘ doing business’ there, . . . ‘the business must be of such a nature and character as to warrant the inference that the corporation has subjected itself to the local jurisdiction, and is by its duly authorized officers or agents present within the state or district where service is attempted. ’ ”

Petitioner has cited the case of Martin Bros. Elec. Co. v. Superior Court (1953), 121 Cal.App.2d 790 [264 P.2d 183]. The facts of that case appear to be, as petitioner contends, substantially identical to those of the case at bar. There the petitioner foreign corporation was a manufacturer of electric hair dryers which sold its product to California wholesalers ; it had no written contract with its distributors, maintained no office, salesmen, nor stock of merchandise in California, did no local advertising but advertised its product nationally, shipped no merchandise to any business house in California on consignment or on any other basis whereby ownership would remain in the petitioner. The court issued a writ directing the superior court to desist from further proceedings against the petitioner and directing the superior court to vacate an order denying the petitioner’s motion to quash the substituted service of summons; the court also stated: “we have found no case holding that these facts, standing alone, are sufficient to make the foreign corporation amenable to process in this state.”

This court in Fielding v. Superior Court, 111 Cal.App.2d 490 [244 P.2d 968], held that it is a factual question as to whether a corporation is doing business in this state for the purpose of being served with process; that each case must stand on its own facts in determining this question.

It is our view that under the facts in the record most favorable to respondent there is no showing that petitioner is doing business in California so as to make it subject to the process of California courts.

We conclude that a peremptory writ of prohibition and mandamus should issue as prayed.

Writs of prohibition and mandamus to issue as prayed.

Nourse, P. J., concurred.