*1 832 рrincipal there must be and an 32 of section Code] [Pen. ’’ acting
aider, in concert. applies reasoning to Penal Code section The same judgment against appellant, aiding for the is the which basis (See People Angelopoulos, Cal.App.2d v. 30 abetting. and People James, v. 873]; P.2d 549-550 [86 697].) Cal.Rptr. 809, A.L.R.2d jury’s confusion resulted from evidence Apparently the appellant did assist others than his code- disclosed which appellant rape. aof Since was in the commission fendant guilt his or inno- аssisting only, his codefendant charged with upon principal his rests whether an aider and abetter cence as jury did crime; found that he not. committed judgment is reversed. Gargano, J., concurred. Conley, J.,P. rehearing denied petition February for a A hearing Supreme by the petition for a respondent’s 12, 1969. denied March Court was 17, 1969.] Dist., Three. Div. Jan. 33370. Second No.
[Civ. BANK, S.A.L., Petitioner, THE v. UNIVERSAL BEIRUT COUNTY, LOS ANGELES COURT OF SUPERIOR S.A., al., Real Parties in Interest. ORBI, et Respondent; *2 Krystal for Petitioner. Krystal & Paradise Monroe B. Respondent. appearance for No Flonrn for Swerdlow, Glikbarg Shimеr and Richard H. & Real Parties Interest. Petitioner, Beirut Bank, S.A.L., FORD, P. Universal J. banking to com association, seeks a writ of mandate
Lebanese pel quashing superior an service court to enter order pursuant petitioner. made summons on The service was provisions 2, of Civil of section Code Corporations Code.1 and sections 6500-6504of the Procedure S.A., January parties interest, Orbi, real On corporation, Forman, commenced the a Swiss present William R. against petitioner and Habib. The
action Selim G. agreements and sought was the rescission of certain relief damages summons was made on the for fraud. Service January 18, March Secretary of State on 1968. On petitioner appeared specially and made motion for an order quashing ground of summons on the that the court service *3 jurisdiction petitioner. motion heard lacked over The was upon affidavits and was denied. alleged complaint
In the first cause of action of the it was 1966, through 20, on or the that about “Dеcember County Angeles, plaintiffs negotiated of Los defendants and independent contracts, agreed and to certain oral but related portions writing signed in Los of which were reduced to and Angeles dates;” agreement on those that in one defendant agreed Bank Orbi the sum of Beirut Universal to lend to 500,000 pounds by purchase 50 Lebanese to be used Orbi to percent picture interest a motion theater business Beirut, Lebanon, bjr Habib; owned defendant that the bank agreed 100,000pounds also to lend an additional to defendant represented agreed Habib; expressly that the and that bank specified 600,000pounds purposes; that the would be used for Procedure, 1In section of the Code of Civil provided against corporation, that an action California, by delivering copy must summons be served thereof 6504, inclusive, Corpora the manner set forth in tions sions the sections to of the present case, plaintiffs provi Code. In the the had recourse to the Corporations of sеction 6501 of the Code made on and service was Secretary of State. representations bank those and entered into the agreement made the intending perform carry or “without ever them upon out;” representations that in reliance those and that agreement, plaintiff of (a Orbi executed a letter commitment complaint copy A) of which was attached to the as exhibit plaintiff “did and Forman execute in Los at the same payments guaranty time a of the of аll amounts due to the (a copy Bank from was Beirut Orbi” which attached to complaint B) prior entering the ; as exhibit that into the agreement alleged in oral the first and causes of second action executing (copies and the documents of which were attached complaint C, A, as exhibits B and respectively) the premises defendants that were aware the theater had been by nonpayment seized the landlord because of the by of rent and defendant Habib defendants failed to disclose the fact of prior making such seizure agree- the “aforesaid ment;” plaintiffs that had if been informed of they that fact 1‘ not agreement would have entered into the described in this Count;” count and in the Second that in breach of the oral agreement described, heretofore the defendant bank never paid any obligations by owed defendant Habib “on parties bank;” said theatre to other than said and that “plaintiffs hereby agreement rescind said oral and Exhibits A ground Band hereto on that their consent thereto was through obtained the fraud defendants . . . and on the ground further consideration therfor has failed )) plaintiffs In the second sought cause of action the rescission (exhibit C). contract with defendant Habib by action specified third cause of embodied reference and first second paragraphs of the causes action. In addi- representations alleged: “The para- it was described tion disposition by graph above to be made the bank [as Rudоlph were made proceeds both loan] Manas- terski, Bank, of defendant an officer Beirut and also during negotiations Habib extensive defendant with Pat president, plaintiff and Notaro, Orbi’s Forman, in Los during period California, Angeles, December 15 to Decem- being during days all Habib these ber being present 16th, 19th Manasterski 20th.” It defendants, alleged in making further such *4 representations that the representations, knew were false and perform same, that Beirut Bank but, rather, intended “never plaintiffs (and always rely plaintiffs have intended to thereon plaintiffs intending into thereby to defraud thereon), rely did Beirut Bank of payment defendant becoming for the liable satisfy Habib’s was used to 600,000, 550,000 of which L.£. L.£. payment could not defendant, which said debt to antecedent pleaded that It was also conceivably plaintiffs.” benefit entering into representations plaintiffs relied on the false agreement. petitioner quash, the Beirut support of its motion In Rudolph president, its the affidavit of Bank filed Universal residing Beirut, citizen He a Lebanese Manasterski. any never maintained had He stated that bank Lebanon. any property this never owned and had office California had never representative the bank been An or officer state. any engaged in had not present and the bank this state correspond- by means of in California business transaction except related. ence, otherwise, as hereinafter or cable involved inception of the transaction to the With that in November action, Manasterski stated Mr. in Beirut and talked visited the bank Habib 1966 defendant bank, about the matter an of the Khoury, officer to Mr. pur- parties who were interested making to certain a loan in Mr. Habib’s theater business chasing percent a 50 interest in the sum then indebted bank in Beirut. Habib was pounds respect to that business. A few 550,000 Lebanese plaintiff Orbi, thereafter, Notaro, an officer of Pat R. days acting behalf, corporation, on Orbi’s discussed S.A., a Swiss lending the matter Khoury and Mr. Manasterski with Mr. purpose 500,000 pounds for the sum of Lebanese to Orbi the purchase. stated that such a loan Mr. Manasterski of such acceptable personal guaranty of the loan if an could made plaintiff suggested Forman as Notaro could be obtained. Mr. advised Mr. Notaro that Mr. For- guarantor and the bank such acceptable. guaranty Mr. Habib’s indebted- would be man’s agreed it was discussed and to the bank was ness proceeds applied against the indebted- loan would be Mr. Habib to the bank. ness of affidavit was as portion of Mr. Manastеrski’s A further request Notaro, “Thereafter, at the the under- follows: arriving Angeles, on signed California, Los December came to 16, 1966 and on December December 16, 1966. On undersigned with Notaro and Habib con- had conversations proposed loan to Orbi. No conversations were had cerning the parties any involved in undersigned with by the December December 1966. On transaction *5 Forman, undersigned and met with Notaro Habib. This meet- ing in was held the officeof Forman at South Robertson City Angeles. Boulevard, meeting, in thе of Los At requested Notaro, Orbi, proposed on behalf loan be 600,000. undersigned thereupon to L.£ The increased tele- phoned the Bank in Beirut and was advised that the increased provided give loan feasible Forman would the Bank a full guarantee. expedite making To the actual of the loan in undersigned produced open Beirut, a written form of loan type conventionally in commitment of the used Lebanon signed thereupon by which was Notaro on behalf of Orbi and undersigned by the оn behalf of the Bank to become effective if, as, and the Bank should receive in Beirut when the written guarantee acceptable of Forman in form to the Bank. Said ‘open’ written loan commitment was in that the amount of specified loan was not therein but left to the convenience open discretion of Said absolute the Bank. loan commit- provided performed governed ment that it in and should by the laws of Lebanon. At this time there was also delivered undersigned, to the effeсtive and to used become when guarantee by Forman’s should be received the Bank in Beirut, by a Lebanese bank form check drawn Notaro for and 600,000 on in pounds behalf of Orbi the sum of L.£ Lebanese payable Notaro, to ‘self’ and a written authorization from on Orbi, apply behalf of the Bank to said sum to the credit of Copies Habib at the Bank. of the aforesaid documents are A, B, attached marked hereto by Exhibits and C respectively ’’ incorporated reference thereto hеrein. Mr. Manasterski further stated his affidavit that meeting Angeles 19, 1966, in Los on December terminated prior meetings noon and that there no were further California connection with transaction which were representative by any Subsequent attended bank. to the meeting termination of on December Mr. Manas- anyone terski had no conversations or transactions with in the any State of connection with the loan or other California County business matter. He of Los for left the Beirut December 1966. Thereafter Mr. complaint) or about Forman’s (exhibit guaranty B to the was delivered to the accompanied by in Beirut Habib a letter from bank Notaro 21,1966.2 dated December (exhibit from Mr. to Mr. Manasterski D to Mr. 2The letter Notaro affidavit) bearing Manasterski’s was on Mr. Notaro’s letterhead and Mr. For- declarations of Notaro plaintiffs filed Mr. motion opposition to the Habib man and an affidavit Mr. meetings With quash the service summons. as declaration were California, portions of Mr. Notaro’s 15, 1966 in Los December met Mr. Habib on follows: “I with on the and Manasterski Angeles and with Mr. Habib Mr. both During Angeles. 1966 in Los 20th of December 16th, 19th and presented certain meetings, I was with the course of these him I I informed Manasterski. in French Mr. documents For- French, Mr. sign any nor would documents would not Thereafter, I was they requested that be translated. man, and n presented docu- All of the English translations thereof. agreements between part, forth all of the which, in set ments Angeles, signed in Los Califor- parties to this action were *6 . through 21, 1966. . . period 16 nia, during the December 21, agreement on December signed guarantee Mr. Forman the given by me to Mr. translated, and it 1966, was was after it ’’ give Mr. Manasterski. Habib to to portion A Manasterski was filed. A counteraffidavit Mr. For- meeting “At held Mr. the thereof was as follows: English translation of 19, 1966, an on December man’s office (the Bank defendant, Beirut Universal guarantee which the presented to him. Mr. Forman was Bank), required of Mr. him in its unacceptable to that it Forman stated was and send changes which he desired make form; that he would agreed loan that the It was then Beirut Mr. Habib. it to with acceptable the to guarantee in form would be made when the Bank and that the by it in Beirut received Bank should be guarantee respect until This any then. would not be bound changed and was later delivered by Forman Mr. was changes explained were by Mr. Habib. These Bank in Beirut Angeles, California. Los Boulevard, of 141 So. Robertson address paragraphs as follows: thereof were first three signed guarantee William Mr. you turn over to will “Selim change was made will note thаt You that you requested. Forman notice for payment insisted the first Mr. Forman wherein Mr. to with a Paris, copy sent to Orbi S.A., S.A. loan would be Orbi obligation Angeles. of within taken care If is not in Los Forman Mr. will sent Forman notice then a second days by Orbi, thirty obligation thirty days. within cure this Los guarantees European in American and on all “This is common practice banks. change no of time in the there would be loss was made so “This Forman and he should be out of to Mr. first notice was sent event Therefore, him of said notice. notify diffiсult it would be the country, come to atten- my which will Orbi, naturally is sent if first notice ’ ’ can be solved quickly. all then tion, problems Notaro Mr. written December letter dated in the guarantee received was When Manasterski .... to Mr. sum proceeds of the loan Beirut, the by the Bank at the of Mr. Habib placed to credit 600,000 L.£ was B as Exhibits and letter attached the draft pursuant to Bank Affidavit . . . .” and C to my [first] Court, 222, at Superior Cal.2d Co. v. Fisher In Governor Supreme 1], Court Cal.Rptr. P.2d 1, 347 page 224 [1 stated; 411, 2, Procedure, section “Code Civil corрorations that are foreign process on authorizes service ' descriptive is a one ‘That term in this State.’ doing business minimum contacts equated such have courts that the suit does not maintenance of the “that the state with offend ‘traditional jus play and of fair substantial notions ’ ” 310, Washington, 326 v. U.S. (International Shoe tice. Co. 154,161 1057].) What A.L.R. 95,102, S.Ct. L.Ed. [90 equivalent to that of the due imposes is ever limitation “ ‘ meaning [D]oing within process business’ clause. synonymous Procedure is 411 of the Code Civil section subject corporatiоns to state to power of the with the Superior Court, 148 (Eclipse etc. Co. v. process.” Fuel local .)’ (Henry . . R. Jahn P.2d 736, 738 [307 739]. Court, 858-859 P.2d Superior 49 Cal.2d & v. [323 Son Superior Court, 51 Borgward, G.M.B.H. v. 437]; W. Carl F. Cosper v. & Wesson 789]; P.2d Smith 72, 75 Cal.2d [330 ” 409].) Co.,ante, p. 77, 82 P.2d Arms foreign corporation doing Whether jurisdiction may constitutionally so that within California particular upon depends the circumstances exercised Superior Court, (Empire Corp. v. Cal.2d Steel case. 502].) A factor is the Cal.Rptr. 366 P.2d relevant 831 [17 *7 out of local activities cause of actiоn arose the extent to which corporation. (Fisher Governor part of the defendant on the Long supra, 225-226; v. Superior Court, 53 Cal.2d v.Co. Dairy, Inc., Mishicot Modern Empire Cal.Rptr. pointed out in the Steel 432].) As argument in to the Cal.2d, page 832) answer (56 at case resulting in contact is neces activity substantial continuous doing foreign corporation may said to be be sary before a analysis state, of the activities of “the in this merely quanti foreign corporation should not be considered ‘ ’ nature, аnd their their tatively, in terms of quality but An obligations upon.” iso sued with the connection justify determination may sufficient to transaction be lated jurisdiction. (Long Mishicot v. Modern existence of 428-429, Cal.App.2d 425, 431-432.) Inc., supra, Dairy, on affidavits or of an order made In the consideration question the involving fact, of a of the decision declarations appellate applicable is by same rule as is bound the court If testimony presented is for review. the evidence where oral every presumed that the court found it will conflicting, is be necessary support its order that the evidence would fact (Detsch Calbar, Inc., Cal.App.2d 556, justify. v. & Co. Cal.Rptr. 626].) 563 [39 Manasterski and the declaration The affidavits of Mr. that, ample support for the inference
of Pat Notaro furnish from the had negotiations for the loan bank been while the brought 1966, the matter was initially undertaken earlier in meetings upon agreed in the a head and the terms were which in of 1966. It is true that place took in December California signed guaranty by Fоrman he the was altered Mr. before meetings shortly it was after the in Los and that given by Mr. Notaro to be delivered to the bank to Mr. Habib guaranty only change made in related But the the Beirut. and, as forth in Mr. Manasterski’s to the matter of notice eounteraffidavit, upon set receipt guaranty by the bank placed Mr. proceeds the loan were credit of of signed pursuant draft and authorization written Habib in on of Thus the Mr. Notaro behalf Orbi. California arranged substantially in its final form in the transaction was activity meetings in California. Such constituted course in relation to transac contacts California substantial plaintiffs now seek rescission or the tion as to which the award of damages alleged for fraud to have occurred meetings. It is defendant true that course of the California litigate expense having the matter in put to bank will be transportation means and com California, current but the of far less moment than render that burden munication is, to the defendant former times. Inconvenience matter, there no constitutional course, a relevant but conducting litiga hardship requirement that the involved always plaintiffs. place must tion in a distant borne Corp. Superior Court, supra, 56 Cal.2d (Empire Steel v. 834.) activity defendant bank’s A determination however, business, 1966 constituted the
in December light statutory provisions must viewed foreign corporations. It to the service summons
841 foreign necessary that the broadly that it is stated has been at the time doing within the state business corporation be subject to а said to be rule has been That is served. summons Corporations of the in 6504 expressed section qualification foreign corporation which has transacted “A as follows: Code has thereafter withdrawn in this State and intrastate "business process in the may served with in this State be from business brought chapter any action in this provided in this manner business, arising such whether or not it has ever out State of part.” Chapter 3 of this complied requirements of Corporations Code (Italics added.) 6203 of the In section “entering “transacting” is defined as intrastate business its repeated and successive transactions of business into foreign State, or commerce.” other than interstate (Detsch Calbar, Inc., supra, 566- & v.Co. stat 567.) Detsch, page 567, In at the court stated: “Since upon a utory authority necessary a for service is basis corporation provides for and since California law [citations] corporations which transacted only service have withdrawn generally (Corp. Code, see 22 Cal. 6504; intrastatе business § foreign corporation engaged solely in 467), Jur.2d a interstate ‘doing here is commerce which ceases business’ before process, thereby able to avoid suit in this served with state.” substantially
In the ease the transaction which was contemplated continuing brought being a into Los liquidated. relationship parties should until the loan given guarantor, Notice of default was to be to the Mr. For- activity man, at his California address. If the of the bank present constituted California while Mr. Manasterski was dоing purposes jurisdiction, it is for of not rea- business jurisdictional vitality lost all sonable to hold that such with brought effect activity transaction involved in the which being it into as soon as Mr. Manasterski left Califor- stated, For reasons which the use of the words nia. will ‘ ’ ‘ ’ in this of section 411 state compel does not such narrow the Code of Procedure Civil interpretation. Equaliza- Board It was stated Select Base Materials v. page tion, at P.2d “The funda- Cal.2d : 672] statutory mental rule of construction is that the court should Legislаture ascertain the intent of the purpose so as to effectuate the ‘every Moreover, law. statute [Citations.] system should be construed with reference whole law part may that all of which it is so be harmonized and have significance possible, given effect.’ If should be [Citation.] part pursuance word, phrase, an every sentence act purpose legislative purpose. will not Such *9 [Citation.] any part sacrificed to a literal construction of of the act.” cоncept doing in of business embodied section 411 Since the synonymous power of the of Civil Procedure is with the Code subject corporations process of the to to local state (Fisher Superior Court, supra, 222, 53 Cal.2d Governor Co. v. 224), logically where, as in the it embraces the situation foreign corporation present case, in the contacts of the this juris in an isolated transaction were sufficient to sustain state arising diction as to causes of action out of that transactiоn. present 2 411 language The of subdivision of section stems 1931, in manner from the amendment of that section but the designated in of service of summons is now that sections 6500- Corporations rather than in former section 6504 of the Code light departure In the 406a of the Civil Code. from jurisdiction adoption presence and the test of of test now (See Henry R. Jahn & in effect as set forth hereinabove Son v. Court, supra, 855, 860; Note, Superior 49 Cal.2d 73 Harv. 909, 998-999), provisions is to it sound construe the of L.Rev. 411 of the of Procedure in of sеction Code Civil expanded concept process of the due accordance with the (See Note, States Constitution. clause of the United 909,1001-1002.)3 Harv.L.Rev. that motion determination the defendant bank’s quash properly summons was denied is not
to service of Traynor, Really Necessary? (1959) 37 Tex.L.Rev. 3In Is This Conflict juris gain pages 658-659, of it "... there is a net at was stated: process concept that of due diction to states the modern available jurisdiction envisages only primary basis of not minimum contacts as a primary opportunity for tests but also fair notice and to be heard as jurisdiction. yet begun valid In Most states have not to exercise service. kept pace. part Even fault that have not lies statutes process may geared antiquated statutes, however, due clause be so interpretation to lend themselves to of the United States Constitution as might way with, note of mutations that clause. One accord .in interpreted an 1872 statute the California courts have illustration how doing foreign corporations authorizing process business in service of of Carl made in a footnote to the cases the state. F. W. R. Jahn that is then [Reference Court, Henry Borgward, Superior 51 Cal.2d and G.M.B.H. v. Court, They Superior 49 Cal.2d have reasoned 855.] Son v. immunity adopted as not for but business was a test for Any jurisdiction, process with the then tenor of the due consonant clause. expressed jurisdiction geared pliant to then test of its tenor process language no more than illustrative of of wаs-therefore service jurisdictional concepts period. of that As those con accord with the wording cepts found became more the courts the 1872 flexible agreement following provision in the between by the affected present “For con- the execution the bank and Orbi: undertakings resulting from tract, and all of the Annexes abide B) . . To also the the the Borrower declares: . them regulations in Lebanon with force laws payment money any Lender due him the amount of accept jurisdiction of and to reason, for whatever settling jurisdiction all Beirut, having sole for as Courts arising contract, and refrain from rais- conflicts out of this jurisdiction any exception for for whatever ing default advance of the contro- agreement, reason.” That versy, made in jurisdiction did not divest the courts of California (See p. Cal.Jur.2d, Contracts, 95, case. § 603; Note, 295; Cal.Jur.2d, Courts, p. 56 A.L.R.2d § general “It is a 306.) rule as follows: 300, generally Corbin states express accepted rule in the United States that an provisiоn shall maintained a that no suit contract particular thereon, except in or in the courts court deprive particular nation, not state or effective to county, jurisdiction could any have over court of otherwise *10 (6A litigation on that Corbin on Contracts based contract.” p. 477.) (1962) 1445, § discharged peremptory is writ alternative writ denied.
Moss,J., concurred. under COBEY, J. I concur.Jurisdiction Code of Civil corpora foreign over a Procedure, section tion, state, which has done nonintrasíate business (See F. W. Borgward, constitutional extent. Carl G.M.B.H. Superior 72, 75-77.) It Court, v. 51 Cal.2d is not the statutori ally jurisdiction limited which obtains when withdrawn only corporation formerly transacted intrastate busi (See Corp. §§ 6203, 6408, (a), subd. Code, 6504; here. ness Superior Cap Closure, Court, & Inc. v. U.S. Cal.Rptr. Confidential, Inc. ; 410-411 v. Su 184] [71 perior Cal.App.2d 75, 546].) Court, 157 P.2d meaning. given yielded correspondingly Thus in the flexible statute activity activity corporation case covered local because ’ ‘ gave noting It rise to the cause of action. is worth activity greater probably if cause action call for local were would not local.”