M. Lowenstein & Sons, Inc. v. Superior Court

The parties are before us on a writ of mandate and/or prohibition. M. Lowenstein & Sons, Inc., the petitioner, seeks to overturn a procedural determination by the trial court. The court’s order had denied petitioner’s motion to quash service and alternatively to dismiss the complaint.

Three basic issues are raised; First, may petitioner (a defendant) be served by mail outside the state when it, a foreign corporation, has designated an agent to receive personal service within the state? Second, if so, is the California statutory scheme unconstitutional which permits service by mail outside the state when personal service is available within the state? Third, even if service by mail is permitted, was the return timely within the required three years? (Code Civ. Proc., § 581a, subd. (a).)

We agree with the trial court that service was properly and constitutionally made.

In its ruling, the trial court summarized the following uncontroverted procedural background. Petitioner, M. Lowenstein & Sons, is a defendant in an action commenced on September 11, 1973, by Grant Davidson, plaintiff and real party in interest. An original alias summons, by which petitioner was served,…