Opinion
San Francisco County Super. Ct. No. 06 451945
STEIN, Acting P. J.
Petitioner, Robert E. Kiernan III (Kiernan), and certain business entities are the named defendants in a complaint for damages, labeled a “derivative and direct action,” brought by real party in interest Balbinder Thiara (Thiara), and arising from business dealings between Thiara and Kiernan. By timely petition for writ of mandate (Code Civ. Proc., § 418.10, subd. (c)), Kiernan challenges an order denying his motions to quash service of summons for lack of personal jurisdiction (§ 418.10, subd. (a)(1)) and/or to stay or dismiss the action (§ 418.10, subd. (a)(2)).
All further statutory references not otherwise noted are to this code.
We previously directed issuance of an alternative writ, explaining in our order that “[t]he superior court erred when it denied defendant Robert E. Kiernan III’s motion to quash service of summons. On the evidence presented to the superior court, there is not a constitutionally sufficient basis for the State of California to exercise jurisdiction. In addition, plaintiff’s complaint contains specific allegations concerning his investment in Resolution Enhanced Fund I, and he is therefore bound by the forum selection clause signed by him.” The superior court declined to voluntarily set aside its order. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶¶15:151 to 15:157.6, pp. 15-70.13 to 15-70.16; Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2006) Writs in California State Courts, § 42.16C, p. 1298.)
Subsequently, Thiara and Kiernan entered into a joint stipulation, filed with this Court on June 12, 2007, whereby Thiara withdrew his opposition to the writ petition, agreeing that the underlying action could be dismissed in accordance with the alternative writ, and that Thiara could file his claims in an action pending between the parties in New York. The parties agreed further to bear their own costs, fees and expenses.
The joint stipulation was filed two days before then-pending oral argument, and implicitly waived argument. We also read it as a stipulation that the remittitur may issue immediately. (Cal. Rules of Court, rule 8.272(c)(1).)
Let a peremptory writ of mandate issue, commanding respondent, County of San Francisco Superior Court, to set aside its order filed February 5, 2007, denying defendant Robert E. Kiernan III’s motion to quash service of summons and his motion to dismiss based on an exclusive forum selection clause, and to instead grant the motions.
The parties shall bear their own costs.
This opinion is final as to this Court immediately (Cal. Rules of Court, rule 8.264(b)(3)), and the remittitur shall issue forthwith.
We concur: SWAGER, J. MARGULIES, J.