Judge: Craig Griffin, Case: "Giunta v. Village West Dallas Development LLC, et. Al.", Date: 2023-07-31 Tentative Ruling
Defendants Blake Patrick Houston, Sr. and Houston Capital Management, LLC’s Motions to Quash Service of Summons For Lack of Personal Jurisdiction or, Alternatively, Motions to Dismiss for Inconvenient Forum are DENIED.
As a preliminary matter, Defendants’ objections to Plaintiff’s declaration in support are OVERRULED.
Plaintiff’s objections to the declaration offered by Defendants’ counsel in support of the reply are SUSTAINED as to Nos. 7, 9, and 10 and OVERRULED as to the rest.
Defendants challenge jurisdiction under CCP § 418.10(a)(1), which provides that the “defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her.”
Once a defendant challenges the Court’s jurisdiction, it is up to the plaintiffs to prove, by a preponderance of the evidence, that personal jurisdiction exists. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4 th 434, 449. This must be shown by affidavits, declarations, or other competent evidence. (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4 th 100, 110.) An unverified complaint “has no evidentiary value in the determination of personal jurisdiction.” (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.)
First, Plaintiff asserts the motion is untimely. Though a second set of Proofs of Service were filed after this motion showing earlier service by certified mail, return receipt requested, the proofs of service on file at the time the motion was filed showed personal service on Defendants on May 25, 2023. According to the proofs of service on file at the time of filing of the motion, the motion was not untimely. As such, the court will address the merits.
Plaintiff asserts that Defendants’ previous ex parte applications and stipulation on a briefing schedule were general appearances, waiving the arguments here. Unlike in Factor Health Management v. Superior Court, here Defendants’ only appearance was to request ex parte continuances of the order to show cause for a preliminary injunction, and there are no allegations that they relied on the authority of the court for anything more in depth than those ex parte continuance requests. (Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 252.) There is no indication that they engaged in discovery to oppose the preliminary injunction, as the defendants did in Factor Health. The court in Factor Health found that an order to show cause for a preliminary injunction does not fall within the scope of CCP § 418.11 because it “involve[s] a determination related to the merits of the case.” (School Dist. Of Okaloosa County v. Superior Court (1997) 58 Cal.App.4th at p. 1133, 68 Cal.Rptr.2d 612; Kohn v. Superior Court (1966) 239 Cal.App.2d 428, 430, 48 Cal.Rptr. 832.) While Defendants requested continuances of the order to show cause for a preliminary injunction, there is no indication that they made any further appearance on the merits of the case that would constitute a general appearance in the action.
Here, Plaintiff asserts the court has specific personal jurisdiction over Defendants as Defendants initiated contact with Plaintiff in California, attempting to retain him. Plaintiff asserts he was in California during all negotiations and communications. The Agreement contains a California choice of law provision, and Plaintiff argues Defendants’ tortious conduct was purposely directed at Plaintiff in California and had a tortious effect here.
Defendants argue that Plaintiff does not distinguish between the three named Defendants. “Each defendant’s contacts with the forum State must be assessed individually. See Rush v. Savchuk, 444 U.S., at 332, 100 S.Ct., at 579. Here, the exhibits attached to Plaintiff’s declarations in support, make it clear that Defendant Houston was involved in the hiring and negotiations with Plaintiff. Further, Defendant Houston signed the Finder’s Agreement at the heart of this matter under “Buyer”. The definition under “Buyer” in the Agreement reads “Village West Dallas Development, LLC, a Texas limited liability company By: Houston Capital Management, LLC, a Texas limited liability company, its Manager” with the signature line reading “Blake Houston, Manager”. As such, the involvement of Defendants in the underlying Finder’s Agreement is clear.
Given that Plaintiff resided in California the entire time, procured individuals to invest that also reside in California, and Defendants specifically engaged in negotiations and the Finder’s Agreement with Plaintiff, there is “evidence of express aiming or intentional targeting” to establish personal jurisdiction under Pavlovich v Superior Court (2002) 29 Cal.4th 262, 273. As explained in Shisler v. Sanfer Sports Car, Inc. (2006) 146 Cal.App.4th 1254, 1260-1261, Pavlovich adopted a sliding scale test for evaluating Internet activity for jurisdictional purposes. On one end, clearly conferring personal jurisdiction, are defendants who enter into contracts with residents of a foreign jurisdiction that involve “knowing and repeated transmission of computer files over the Internet”, in contrast to situations were defendants have simply posted information on a website that is accessible to users in foreign jurisdictions. Here, Defendants entered into a contract with Plaintiff, who they knew was in California, with repeated contacts via email and Zoom. As such, there is specific personal jurisdiction over Defendants Houston and Houston Capital.
As to the alternative relief requestion that the court find inconvenient forum and dismiss or stay the action, if a court finds that, in the interest of substantial justice, an action filed in California should be adjudicated elsewhere, it may stay or dismiss the action on such conditions as may be just. (Code Civ. Proc., § 410.30, subd. (a).) The inquiry is not whether some other state or country provides a better forum than California but whether California is a seriously inconvenient forum. (Ford Motor Co. v. Insurance Co. of North Am. (1995) 35 Cal.App.4th 604, 611.)
A suitable alternative forum is one in which a valid judgment may be obtained against a defendant. The defendant must be subject to service of process in the alternative forum or be willing to submit to jurisdiction as a condition of the granting of a motion to stay. (See Stangvik v. Shiley, Inc. (1991) 54 Cal.3d 744, 752.) The statute of limitations must not have run in the other forum or the defendant must be willing to waive the statute. (See id.) The alternative forum is suitable if its laws provide a remedy for the claim sued upon. (See id., at p. 764.)
If a suitable forum exists, private and public interest factors should be weighed. (Id., at p. 751.) Unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed. (Ford Motor Co., supra, 35 Cal. App. 4th at pp. 610-611.)
Here, it is undisputed that suitable alternative forum exists, as Plaintiff does not dispute that Texas would be a suitable alternative forum. Rather, the parties disagree as to the weighing of the private and public interest factors. The private interest factors are fairly equally between the two forums. Sources of proof are split between California and Texas, with parties and witnesses split between the two states. As to physical evidence, much of the evidence appears to be digital and equally available in either forum. As to public interest factors, this case involves both Texas and California residents. Though Defendants assert the location of the property is important, the property itself is not relevant to the issues in this matter. Rather, the Finder’s Agreement and the facts surrounding investment in Village West are in question. Those issues equally concern the interests of California and Texas, as again, the matter concerns residents in both states. As the balance here is not strongly in favor of the defendants, the plaintiff’s choice of forum should rarely be disturbed. (Ford Motor Co. v. Insurance Co. of North Am. (1995) 35 Cal.App.4th 604, 610-611.)
The Motions are therefore DENIED.
Plaintiff is to give notice.