Judge: Bruce G. Iwasaki, Case: 25STCV06960, Date: 2025-05-21 Tentative Ruling

Case Number: 25STCV06960    Hearing Date: May 21, 2025    Dept: 14

SUPERIOR COURT OF THE STATE OF CALIFORNIA    

FOR THE COUNTY OF LOS ANGELES  

DEPARTMENT 14 

I.                Background

On March 11, 2025, Plaintiffs Becky and Henry Hernandez filed their complaint for personal injury against numerous Defendants alleging that Becky Hernandez (“Ms. Hernandez”) developed mesothelioma from direct exposure to asbestos containing talc from the 1976 to the 2020s, and indirect exposure to asbestos containing talc from her mother’s use of talc products from 1963 to 1981, and from her husband’s use of these products from the 1980s to the 2020s. As against Defendant Port Jervis Laboratories, Inc. (“Port Jervis”) Plaintiffs allege Ms. Hernandez developed mesothelioma from exposure to asbestos contaminated talc in CoverGirl, L'Oreal, and Maybelline brand cosmetics from the 1970s to the present.

On April 22, 2025, Port Jervis filed its motion to quash service of summons and complaint for lack of personal jurisdiction. On May 8, 2025, Plaintiffs filed their opposition in which they assert that this court has jurisdiction over Port Jervis. On May 14, 2025, Port Jervis filed its reply. On May 21, 2025 the court held a hearing.

II.             Objections

Plaintiffs’ Objections:

Overruled:

1. Edmonds declaration ¶ 6, “Port Jervis maintains its principal place of business at 20 King Street, Port Jervis, New York 12771”] is neither lacking in foundation, inadmissible hearsay, not an improper conclusion. Mr. Edmond’s foundation for this statement is his personal knowledge. (Edmonds Decl. ¶ 1 [“The following is within my personal knowledge and if called upon as a witness I could and would competently testify.”].) The basis for this personal knowledge is that Mr. Edmonds is the former president of Defendant, having held the position from 2010 to 2015, and that he currently serves as a person most knowledgeable for Defendant. (Edmond’s Decl. ¶ 1.) Accordingly, he has personal knowledge of the location of the corporation’s principal place of business. The document is not inadmissible hearsay because it is a declaration made in lieu of live in person testimony as is required under the California Rules of Court, rule 3.1306 subdivision (a). (Cal. Rules of Court, rule 3.1306(a) [“Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.”].) While Mr. Edmond’s statement regarding the location of Defendant’s principal place of business is somewhat conclusory, it expresses an opinion rationally based on his personal knowledge of the operations of the business that is reasonably helpful to a clear understanding of the declaration and therefore an admissible lay opinion. (See Evid. Code § 800.)

Moreover, even to the extent Mr. Edmond’s declaration was inadmissible, the burden on production on this motion is Plaintiffs, not Port Jervis. Accordingly, to the extent Mr. Edmond’s testimony regarding the corporate structures or operations of Port Jervis is inadmissible, Plaintiffs were nonetheless required to present affirmative, admissible evidence to support this court’s exercise of jurisdiction.

2. Edmonds Decl.  ¶ 7 “While Port Jervis’s predecessor, Kolmar Laboratories., Inc., did have a manufacturing plant in Southern California at one time, that plant closed more than twenty years ago. Port Jervis’s sole manufacturing remains in New York” does not lack foundation, is not inadmissible hearsay, and is not an improper conclusion. Mr. Edmonds has foundation for his statement regarding Defendant’s current sole manufacturing facility being in New York for the same reasons described in no. 1.

Mr. Edmonds may lack foundation for his statements regarding the existence of a California manufacturing facility at least 5 years before his employment began pursuant to LAOSD Asbestos Cases (Ramirez v. Avon) (2023) 87 Cal.App.5th 939, 951 [“Although [Defendant’s corporate representative] does not identify any source at all for most of her information, given that she did not work at Avon until 1994, her statements involving activities before that time cannot be based on personal knowledge and must be based on hearsay.”] However, his lack of foundation on this point is not material to the disposition of this motion because Plaintiffs do not dispute that Port Jervis’s predecessor in interest, Kolmar, operated a manufacturing facility in California.

3. Edmonds Decl. ¶ 8, “Today, Port Jervis does not own or lease any property, including offices, laboratory or manufacturing facilities anywhere in California and does not have a mailing address or telephone number in California” does not lack foundation, is not hearsay, and is not an improper conclusion for the same reasons described in no. 1.

4. Edmonds Decl. ¶ 9, “Port Jervis is not qualified, licensed, authorized, or registered to do business in California, and does not have a registered agent or other person authorized to accept service of process in California” is not inadmissible for the same reasons described in no. 1. This is also relevant because it establishes a prima facie basis for the absence of facts to support jurisdiction over Defendant, even if Plaintiffs’ substantive allegations relate to Defendant’s predecessor.

5. Edmonds Decl. ¶ 9, “No employees of Port Jervis are based in California” is not inadmissible for the same reasons described in no. 4.

6. Edmonds Decl. ¶ 11, “It does not manufacture, advertise, package, label, or sell any products in California” is not inadmissible for the same reasons described in no. 4.

7. Edmonds Decl. ¶ 12 “Port Jervis has no control over where its customers market or sell their final products and does not participate in the advertising, marketing, and distribution of any product” is not inadmissible for the same reasons described in no. 4.

8. Edmonds Decl. ¶ 13 “The products that Port Jervis contract manufactures are all sold “free on board,” meaning that its customers make the arrangements for the transport of their products. Port Jervis does not transport or take responsibility for transporting any customer’s final product” is not inadmissible for the same reasons described in no. 4.

9. Edmonds Decl. ¶ 14 “I understand that the following products are alleged to have been contract manufactured by Port Jervis and to have caused harm to Becky Hernandez: Baby Magic Powder, CoverGirl cosmetics, Maybelline cosmetics, L’Oreal cosmetics, Coty cosmetics, and Coty talcum powders. Port Jervis has no information that any of those products were contract manufactured by Port Jervis in California at any time. Port Jervis also has no information that it was involved in any advertising, marketing, distributing, or transporting services regarding any of those products at any time” is not inadmissible for the same reasons described in no. 4.

Defendant’s Objections:

Overruled:

            1.  Rahmes Decl. ¶ 4 and Exhibit C, “true and correct copies of defendant Kolmar Laboratories, Inc.’s ‘Overview’ ‘Filing history’ ‘People’ and ‘Initial branch registration’ for registration of a branch overseas dated August 24, 1998” is neither irrelevant nor immaterial. These documents reflect the undisputed fact that Defendant’s predecessor in interest, Kolmar Laboratories, operated in California. While Defendant does not dispute its predecessor’s operation in California, it does dispute whether such operations are sufficient to render Defendant subject to general or specific jurisdiction. The documents presented are relevant and material to determine the extent of Defendant’s predecessor’s contacts in California.

            3. Rahmes Decl. ¶ 6 and Exhibit E “true and correct copies of Kolmar Laboratories’ ‘a Corona cosmetics mfr.,’ solicitation and publication of job advertisements for its ‘Kolmar Laboratories 450 N. Sheridan Corona, CA 92880’ for an ‘HR Asst. Responsible for daily admin functions in busy HR ofc.’ Advertised in the Daily Press (Victorville, California) dated November 5, 2001, and in the Chino Champion Newspaper (Chino, California)” is neither irrelevant nor immaterial for the same reasons described in no. 1.

4. Rahmes Decl. ¶ 7 and Exhibit F “a true and correct copy of the Kolmar Laboratories, Inc.’s ‘GRANT DEED’ granting to the City of Riverside ‘real property in the City of Riverside, County of Riverside, State of California, described as follows: ….dated February 23, 1966’ signed by ‘KOLMAR LABORATORIES, INC.’ and ‘RECEIVED FOR RECORD MAR 4 1966’ ” is neither irrelevant nor immaterial for the same reasons described in no. 1.

6. Rahmes Decl.¶ 9 and Exhibit H “a true and correct copy of a ‘Proposition 65 Notice of Violation, This notice amends the original notice of violation AG No. 2023-02980. This notice identifies Kolmar Laboratories, Inc. as a Manufacture’” and was sent by Entorno Law to ‘Kolmar Laboratories, Inc.’ and five other companies on April 4, 2024” neither irrelevant nor immaterial for the same reasons described in no. 1.

Sustained:

2. Rahmes Decl. ¶ 5 and Exhibit D, “a true and correct copy of ‘Kolmar Laboratories Cosmetics in Corona, CA, 450 N Sheridan St, Corona CA 92880-Riverside County, (951) 371- 8541’ and ‘is a business listed in the categories Cosmetics, Cosmetics & Toilet Preparations Wholesale & Manufacturers’ ” is inadmissible hearsay. This is an out of court statement introduced for the truth of the matter asserted therein, and therefore inadmissible hearsay in the absence of a valid exception. (Evid. Code § 1200.) Plaintiffs present no evidence or argument in support of the admissibility of these documents. Accordingly, Plaintiffs fail to present sufficient evidence to establish the applicability of a valid hearsay exception.

5. Rahmes Decl. ¶ 8 and Exhibit G “a true and correct copy of ‘KDC-Kolmar increases West Coast market presence’ ” is inadmissible hearsay for the same reasons described in no. 2.

6. Rahmes Decl. ¶ 10 and Exhibit I “a true and correct copy of Kolmar Laboratories, Inc.’s Company Profile that sets forth the history of “Kolmar Laboratories, Inc.” including its “establishment of a plant on the West Coast. The initial site was in Burbank, California. This was moved to Hollywood in 1953, to Riverside in 1966 and finally to Corona, California in 1988…Renamed parent organization to Kolmar Labs Group. 2008 Kolmar is still the largest contract manufacturer of color cosmetics in the world’ ” is inadmissible hearsay for the same reasons described in no. 2.

III.           Discussion

A.    Legal Standards

A defendant may move to quash service of summons on the ground of lack of jurisdiction of the court over them. (Code Civ. Proc., § 418.10, subd. (a)(1).) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (Code Civ. Proc., § 581, subd. (h).) 

"A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." (Code Civ. Proc., § 410.10.) "The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful 'contacts, ties, or relations."' (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472.) A state court may not exercise personal jurisdiction over a party under circumstances that would offend "traditional notions of fair play and substantial justice." (Asahi Metal Industry Co., Ltd., v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113.) 

When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. (Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 553.) Once facts showing minimum contacts with the forum state are established, the defendant has the burden to demonstrate the exercise of jurisdiction would be unreasonable. (Ibid.) "The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. [Citation.] The plaintiff cannot rely on allegations in an unverified complaint or vague and conclusory assertions of ultimate facts. [Citation.]" (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 222.)

A defendant is subject to a state's general jurisdiction if its contacts "are so continuous and systematic as to render [it] essentially at home in the forum State." (Daimler AG v. Bauman (2014) 571 U.S. 117, 127.) A nonresident defendant may be subject to the specific jurisdiction of the forum "if the defendant has purposefully availed himself or herself of forum benefits [citation], and the 'controversy is related to or "arises out of' a defendant's contacts with the forum.' [Citations.]" (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446.) This test does not require a "causal relationship between the defendant's in-state activity and the litigation." (Ford Motor Co. v. Montana Eighth Judicial District Court (2021) 592 U.S. 352, 362.) The "arise out" of standard "asks about causation," but "relate to" does not. (Ibid.) "[W]hen a corporation has 'continuously and deliberately exploited [a State's] market, it must reasonably anticipate being haled into [that State's] court[s]' to defend actions 'based on' products causing injury there." (Id. at p. 364.) 

B.    General Jurisdiction

Plaintiffs do not present admissible evidence sufficient to support a finding of general jurisdiction here. General jurisdiction over a corporate defendant exists when the corporation's “affiliations with the State are so ‘continuous and systematic’ as to render it essentially at home in the forum State.” (Daimler, supra, 571 U.S. 117, 139 [quoting Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. 915, 919].) For a corporation, the paradigmatic examples of such affiliations are the locations where the defendant is incorporated and of the defendant’s principal place of business. (Daimler, supra, 571 U.S. 117, 137.)

Plaintiffs do not clearly articulate whether they assert this court has general jurisdiction over Port Jervis. Plaintiffs’ arguments appear to center on specific personal jurisdiction. (Opposition at p. 4 [“Port Jervis presents no evidence or any facts to support its wholesale conclusion that this Court lacks specific jurisdiction over it.”].) Regardless, Plaintiffs present no admissible evidence regarding where Port Jervis is incorporated or where its principal place of business is located. As such, Plaintiffs fail to satisfy their burden to present admissible evidence to support general jurisdiction on this motion.

C.    Specific Jurisdiction

A court may exercise specific jurisdiction over a plaintiff when three elements are satisfied: “(1) ‘the defendant has purposefully availed himself or herself of forum benefits’ [citation]; (2) ‘the controversy is related to or “arises out of” [the] defendant's contacts with the forum’ [citation]; and (3) “ ‘ “the assertion of personal jurisdiction would comport with ‘fair play and substantial justice’ ” [citation.]”  (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269.) Here, Defendant contends in its motion that it did not purposefully avail itself of California, that Plaintiffs’ claims did not arise from or relate to any of its contacts with California, and that exercising jurisdiction over Defendant would be unreasonable.

1.     Purposeful Availment

Plaintiffs present sufficient evidence to establish that Port Jervis purposefully availed itself of the California market. Purposeful availment “focuses on the defendant's intentionality. This prong is satisfied when the defendant purposefully and voluntarily directs his activities toward the forum so that he should expect, by virtue of the benefit he receives, to be subject to the court's jurisdiction based on his contacts with the forum.” (Pavlovich, supra, 29 Cal.4th at p. 269.)

Port Jervis argues that it does not now purposefully avail itself of the benefits of operating in California. Port Jervis argues: “It does not maintain offices in California; manufacture, advertise, package, label, distribute, or sell any products in or to California; or ship customer products to California; maintain employees or property in California. (Edmonds Decl. at ¶¶ 8-12.) In fact, its products are all sold ‘free on board,’ meaning that its customers make the arrangements for the transport of their products. (Edmonds Decl. ¶ 13.) As a result, Port Jervis has not purposefully availed itself of California such that specific jurisdiction could be found.” (Motion at p. 8.) However, in evidence attached to its moving papers, Port Jervis admits that its “predecessor, Kolmar Laboratories, Inc., did have a manufacturing plant in Southern California at one time, that plant closed more than twenty years ago” (Thrasher Decl. ¶ 7.)

In opposition, Plaintiffs argue that they present sufficient evidence of purposeful availment. Plaintiffs argue: “Plaintiffs’ admissible evidence confirm defendant(s) have conducted manufacturing operations in California, and maintained offices in Corona, City of Industry and Irvine, California and marketed, sold, supplied, shipped into and out of California, those cosmetic products to California customers, for decades.” (Opposition at p. 6.) Plaintiffs direct the court’s attention to regulatory filings, advertisements, and deeds to show Port Jervis’s activities in California. (Rahmes Decl. Exs. C, E, F, H.)

In reply, Defendant focuses its arguments on the alleged lack of evidence to support any connection between the products Plaintiffs allege Ms. Hernandez used, but does not contest its “historical presence in California.” (Reply at p. 2.)

Here, the court finds that Plaintiffs present sufficient evidence of Port Jervis’s purposeful availment of California. Port Jervis admits that it operated a manufacturing facility in California until 2003. (Thrasher Decl. ¶ 7; Defendant’s Objection no. 1 [“Port Jervis informed the Court in its moving papers that it had a plant in California before 2003”].) The operation of a manufacturing facility in California during the exposure period at issue here, the 1970s to present, is sufficient evidence that “defendant purposefully and voluntarily direct[ed] [its] activities toward the forum” (Pavlovich, supra, 29 Cal.4th at p. 269.) Even if the operation of the facility ended before Plaintiffs filed their complaint, the court may look at Defendant’s forum activities at the time the cause of action arose. (DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1100-1101) [“Several federal courts have held that in determining whether to exercise specific jurisdiction, ‘courts must examine the defendant's contacts with the forum at the time of the events underlying the dispute....’ [Citation.]”].) Here, for at least a portion of the alleged exposure period, Defendant operated a manufacturing facility in California and thereby purposefully directed economic activity in the state in a manner sufficient to establish purposeful availment of the state.

2.     Relatedness

Plaintiffs fail to present sufficient evidence that their claims arose from or related to Port Jervis’s operation of a manufacturing facility in California before 2003. The relatedness inquiry is not strictly causal and instead focuses on whether the causes of action “rises out of or has a substantial connection with a business relationship defendant has purposefully established with California.” (Vons, supra, 14 Cal.4th 434, at p. 448.)

In its motion, Port Jervis argues that it does not know whether it was responsible for any of the products Plaintiffs alleged Ms. Hernandez was exposed to. Port Jervis argies argues: “Port Jervis has no information that it manufactured, designed, sold, marketed, advertised or transported any of the stated products at issue in or to California at any time. Based thereon, there is no connection between Port Jervis's (non-existent) California contacts and this lawsuit that would support this Court's exercising specific jurisdiction over Port Jervis here.” (Opposition at p. 10.)

In opposition, Plaintiffs argue that they present sufficient evidence of relatedness. Plaintiffs argue: “Plaintiffs' substantial, competent, admissible evidence shows that defendant Port Jervis Laboratories, Inc. f/k/a Kolmar Laboratories, Inc. has continuous, systematic, substantial contacts and purposeful availment in California, including during Plaintiff Becky Hernandez’ purchase and use of asbestos-containing talc-based CoverGirl, Maybelline, and L’Oreal Makeup Cosmetics in California from the 1970s to the present. Therefore, Defendant’s motion to quash should be denied.” However, a review of the evidence attached to Plaintiffs’ opposition does not disclose any evidence, admissible or inadmissible, regarding Defendant’s connections to the particular brands of cosmetics at issue, CoverGirl, Maybelline, and L’Oreal.

In reply, Defendant maintains it has no connections to the products at issue in this case and that Plaintiffs have presented no admissible evidence showing that Defendant was responsible for the products at issue in this case. Defendant argues: “Plaintiffs are surmising that Port Jervis has some involvement with the products at issue and California but have not actually identified any. In fact, in its moving papers, Port Jervis established that it has no information that it contract manufactured any of the brands of products at issue in California and that it does not market or transport any products for any company, and never did.” (Reply at p. 5.)

The court finds Plaintiffs fail to present sufficient evidence of relatedness at this stage. At this stage, the burden is on Plaintiffs to present admissible evidence of jurisdictional facts. Strasner, supra, 5 Cal.App.5^th 222.) Plaintiffs’ reliance on School District of Okaloosa v. Superior Court (1997), 58 Cal.App.4th 1126 for the proposition that the burden of production on this evidence is on Defendant is misplaced. In School District of Okaloosa the court held: “Although the defendant is the moving party and must present some admissible evidence (declarations or affidavits) to place the issue before the court (by showing the absence of minimum contacts with the state), the burden of proof is on the plaintiff to establish, by a preponderance of the evidence, a basis for jurisdiction (minimum contacts between the defendant and the forum state) and valid service of process in conformance with our service statutes.” (Id. at 1131.) To the extent Plaintiffs argues that Mr. Thrasher’s declaration was inadmissible, and therefore could not satisfy Port Jervis’s minimal initial burden, Plaintiffs are mistaken because these objections are overruled. (See Plaintiffs evidentiary objections nos. 1-9.)

More substantively, Plaintiffs fail to support their opposition with admissible evidence connecting Port Jervis to the products Plaintiffs allege Ms. Hernandez used. Plaintiffs fail to provide any admissible evidence of product identification, i.e. what CoverGirl, Maybelline, and L’Oreal brand cosmetics Ms. Hernandez used. Plaintiffs additionally fail to provide admissible evidence to support the allegations in their standard interrogatory responses regarding the years Ms. Hernandez used these unspecified products. Plaintiffs present no evidence, admissible or inadmissible, regarding what CoverGirl, Maybelline, or L’Oreal products Defendant manufactured in California before 2003. In sum, Plaintiffs fail to present any evidence, admissible or inadmissible, connecting Port Jervis to any CoverGirl, Maybelline, and L’Oreal cosmetics that Defendant manufactured in California during the period Ms. Hernandez used those products. Accordingly, there is insufficient evidence to establish that Plaintiffs claims arose from or related to Defendant’s forum contacts.

D.    Jurisdictional Discovery

“A plaintiff attempting to assert jurisdiction over a nonresident defendant is entitled to an opportunity to conduct discovery of the jurisdictional facts necessary to sustain its burden of proof[.]” (Hardell v. Vanzyl (2024) 102 Cal.App.5th 960, 975-976; Goehring v. Superior Court (Bernier) (1998) 62 Cal.App.4th 894.) This court has “discretion to continue the hearing on a motion to quash service of summons for lack of personal jurisdiction to allow the plaintiff to conduct discovery on jurisdictional issues.” (HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1173.) However, “In order to prevail on a motion for a continuance for jurisdictional discovery, the plaintiff should demonstrate that discovery is likely to lead to the production of evidence of facts establishing jurisdiction.” (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 127.)

Plaintiffs argue they are entitled to jurisdictional discovery. Specifically, Plaintiffs argue: “If this Court deems that additional jurisdictional evidence is necessary, Plaintiffs respectfully request this Court continue the hearing for 60 days to allow for jurisdictional discovery, order further jurisdictional discovery, and allow Plaintiffs to supplement this opposition before ruling on Port Jervis/Kolmar’s motion to quash.” (Opposition at p. 9.) Plaintiffs do not identify what discovery they request.

In reply, Defendant argues that Plaintiffs fail to present sufficient evidence to show they are entitled to jurisdictional discovery. Defendant argues: “Plaintiffs’ blanket request is particularly egregious here because Plaintiffs have not yet even shared which specific CoverGirl, Maybelline, and L’Oreal products that Mrs. Hernandez claims to have used (by type of product, shade, and trade name) and during which specific timeframe. Therefore, Plaintiffs have not offered reasonable grounds for the Court to grant Plaintiffs’ request for jurisdictional discovery. Instead, this Court should grant Port Jervis’s Motion to Quash.” (Reply at p. 7.)

Here, the court finds that Plaintiffs did not satisfy their burden to show they are entitled to conduct targeted and limited jurisdictional discovery into Defendant’s manufacture of CoverGirl, Maybelline, or L’Oreal products. Plaintiffs present no admissible evidence that Ms. Hernandez used products from these brands, let alone which particular products from these brands she used or when she used them. Significantly, any evidence or knowledge regarding the products Ms. Hernandez used is exclusively within the possession of Plaintiffs or persons known to Plaintiffs. Accordingly, jurisdictional discovery would not be likely to produce admissible evidence of facts establishing jurisdiction because it would not cure the absence of evidence regarding the products at issue.

IV.           Conclusion

Plaintiffs fail to present evidence sufficient to satisfy their burden to show the existence of personal jurisdiction over Defendant. Plaintiffs likewise fail to show evidence sufficient to show they are entitled to jurisdictional discovery. However, the court will inquire at during the May 21 hearing whether Plaintiffs possess admissible evidence of the particular product lines of cosmetics Plaintiffs allege Ms. Hernandez used which were manufactured by Port Jervis. If Plaintiffs possess this evidence, or could reasonably produce such evidence, the court may consider providing Plaintiffs a brief continuance to file a supplemental declaration containing this product identification evidence. In the absences of more specific product identification evidence, Defendant’s motion to quash service of summons and complaint will be granted. The court would dismiss the complaint against Defendant without prejudice pursuant to Code of Civil Procedure section 581, subdivision (h) 

            Moving party Defendant Port Jervis Laboratories, Inc. is ordered to give notice.