Judge: Cynthia A Freeland, Case: 37-2023-00046037-CU-BC-NC, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - April 11, 2024

04/12/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Breach of Contract/Warranty Motion to Quash (Civil) 37-2023-00046037-CU-BC-NC CARR MARKETING, INC VS ANNISSA ESSAIBI GEORGE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Quash Service of Summons, 03/14/2024

Specially appearing Defendants Annissa Essaibi George ('Ms. George') and Committee To Elect Annissa Essaibi George (the 'Committee' and, together with Ms. George, 'Defendants')'s motion to quash service of summons and dismiss this action for lack of personal jurisdiction is granted.

The court sustains Defendants' third, ninth, twelfth, fourteenth, sixteenth, seventeenth, and eighteenth objections to Mr. Carr's declaration and overrules the remaining objections. The court sustains Plaintiff Carr Marketing, Inc. ('Plaintiff' or 'CMI')'s objection to Ms. George's reply declaration to the extent Defendants are attempting to introduce new arguments or evidence not raised in their moving papers, except to the extent such arguments and evidence have been provided to respond to issues raised in Plaintiff's opposition. See Bruno v. Hopkins (2022) 79 Cal. App. 5th 801, 822; Professional Engineers in California Government v. Brown (2014) 229 Cal. App. 4th 861, 875.

Under California's 'long arm' statute, California courts may exercise personal jurisdiction over nonresidents on any basis that is not inconsistent with the state and federal Constitutions. See Cal. Code Civ. P. § 410.10. The inquiry in California is thus whether the assertion of personal jurisdiction over a nonresident 'comports with the limits imposed by federal due process.' Young v. Daimler AG (2014) 228 Cal. App. 4th 855, 865. See also Sibley v. Sup. Ct. (1976) 16 Cal. 3d 442, 445 (California's long-arm statute 'manifests an intent to exercise the broadest possible jurisdiction, limited only by constitutional considerations.'). Personal jurisdiction may be either general or specific. See ViaView, Inc.

v. Retzlaff (2016) 1 Cal. App. 5th 198, 209. 'A nonresident defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are 'substantial . . . continuous and systematic.'' Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 445 (quoting Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445 (1952)). In such instances, 'it is not necessary that the specific cause of action alleged be connected with the defendant's business relationship to the forum.' Vons Companies, Inc., 14 Cal. 4th at 445-446 (quoting Cornelison v. Chaney (1976) 16 Cal. 3d 143, 147). In other words, the nonresident defendant's 'contacts with the forum are so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction.' Vons Companies, Inc.

14 Cal. 4th at 446 (citing Burnham v. Sup. Ct. of California, County of Marin, 495 U.S. 604, 618 (1990)).

Alternatively, '[s]pecific jurisdiction results when the defendant's contacts with the forum state, though not enough to subject the defendant to the general jurisdiction of the forum, are sufficient to subject the defendant to suit in the forum on a cause of action related to or arising out of those contacts.' Aquila, Inc. v. Sup. Ct. (2007) 148 Cal. App. 4th 556, 569-570. In analyzing specific jurisdiction, courts consider the relationship among the defendant, the forum, and the litigation. See Zehia v. Sup. Ct. (2020) 45 Cal. App. 5th 543, 552. See also HealthMarkets, Inc. v. Sup. Ct. (2009) 171 Cal. App. 4th 1160, 1167 Calendar No.: Event ID:  TENTATIVE RULINGS

3103137 CASE NUMBER: CASE TITLE:  CARR MARKETING, INC VS ANNISSA ESSAIBI GEORGE  37-2023-00046037-CU-BC-NC ('Specific jurisdiction depends on the quality and nature of the defendant's forum contacts in relation to the particular cause of action alleged.'). 'A nonresident defendant may be subject to specific jurisdiction if three requirements are met: (1) the defendant has purposefully availed itself of forum benefits with respect to the matter in controversy; (2) the controversy is related to or arises out of the defendant's contacts with the forum; and (3) the exercise of jurisdiction would comport with fair play and substantial justice.' Burdick v. Sup. Ct. (2015) 233 Cal. App. 4th 8, 18 (citing Pavlovich, 29 Cal. 4th at 269). 'The purposeful availment inquiry . . . focuses on the defendant's intentionality. [Citation.] This prong is only 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, 29 Cal. 4th at 269 (citing U.S. v. Swiss American Bank, Ltd., 274 F.3d 610, 623-624 (1st Cir. 2001)). Purposeful availment occurs where the nonresident defendant: (1) purposefully directs its activities at residents of the forum; (2) purposefully derives benefit from its activities in the forum; (3) creates a substantial connection with the forum; (4) deliberately has engaged in significant activities within the forum; or (5) has created continuing obligations between itself and residents of the forum.' Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal. 4th 1054, 1063.

As to minimum contacts, the United States Constitution permits a state to exercise personal jurisdiction over a nonresident defendant if the defendant has sufficient 'minimum contacts' with the forum such that the lawsuit does not offend 'traditional notions of fair play and substantial justice.' See Thomson v. Anderson (2003) 113 Cal. App. 4th 258, 265 (citing International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement et al., 326 U.S. 310, 316 (1945)). 'The 'substantial connection' [citations] between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State.

[Citations.]' DVI, Inc. v. Sup. Ct. (2002) 104 Cal. App. 4th 1080, 1090 (quoting Asahi Metal Industry Co. v. Sup. Ct., 480 U.S. 102, 112 (1987)). Under the minimum contacts test, the court must weigh the specific facts of each case to determine whether the requisite 'affiliating circumstances' are present.

See Pavlovich v. Sup. Ct. (2002) 29 Cal. 4th 262, 268 (citing Kulko v. California Sup. Ct., 436 U.S. 84, 92 (1978)).

A nonresident defendant may seek an order quashing service of summons owing to an alleged lack of personal jurisdiction of the court over him or her. See Cal. Code Civ. P. § 418.10(a)(1). Upon the filing of a motion to quash, 'the plaintiff must carry the initial burden of demonstrating facts by a preponderance of evidence justifying the exercise of jurisdiction in California.' In re Automobile Antitrust Cases I & II (2005) 135 Cal. App. 4th 100, 110. The plaintiff must do more than merely allege jurisdiction facts; rather, he or she must offer specific evidentiary facts allowing the court to independently conclude that it may exercise personal jurisdiction over the defendant. Ibid. If the plaintiff makes a sufficient showing of minimum contacts with the forum state, 'the burden shifts to the defendant to present a compelling case demonstrating that the exercise of jurisdiction by our courts would be unreasonable. [Citations.]' CenterPoint Energy, Inc. v. Sup. Ct. (2007) 157 Cal. App. 4th 1101, 1118 (quoting In re Automobile Antitrust Cases I and II, 135 Cal. App. 4th at 111).

In this case, Plaintiff does not address general personal jurisdiction in its opposition, which the court construes as a concession that the court lacks such jurisdiction over Defendants. See San Diego Rules of Court, Rule 2.1.19.B. Moreover, the court finds that Defendants' contacts with California are not substantial, continuous, and systematic such that the exercise of general personal jurisdiction over them would comport with notions of fair play and substantial justice. The evidence shows that Ms. George has been a resident of Massachusetts her entire life and presently resides in the Dorchester neighborhood of Boston. See George Decl., ¶ 2. She has never been a California resident and has only visited the state on a few occasions in the past. Ibid. The Committee was formed in connection with Ms. George's 2021 candidacy for Boston Mayor. Ibid., ¶ 3. The Committee was responsible for maintaining and reporting funds raised as part of Ms. George's campaign. Ibid. All election-related activities, including campaigning, occurred in the Boston area. Ms. George never traveled to, campaigned in, or ran advertisements in California. Ibid., ¶ 4. On October 23, 2023, Plaintiff commenced this action by filing a Complaint against Defendants for breach of contract and common counts. See ROA No. 1. The Complaint alleges that on or about October 2021, Defendants and CMI, a California resident, entered Calendar No.: Event ID:  TENTATIVE RULINGS

3103137 CASE NUMBER: CASE TITLE:  CARR MARKETING, INC VS ANNISSA ESSAIBI GEORGE  37-2023-00046037-CU-BC-NC into an agreement whereby CMI would provide voter outreach services for Ms. George's campaign, which services included voter identification persuasion, get out the vote promotional phone calls, text messaging, ringless voicemail, and landline robocall messaging. See also Carr Decl., ¶¶ 3-5. The parties do not dispute that CMI's voter outreach services targeted residents in and around the Boston area only.

Plaintiff alleges that Defendants made two payments to Plaintiff under the parties' alleged agreement, but that Plaintiff currently owes $116,198.54 in unpaid services as of June 15, 2022. Based on the foregoing, it appears that Defendants' contacts with California were limited to Defendants' alleged business relationship with CMI, which relationship involved CMI providing voter outreach services entirely to out-of-state residents. Such activity is not so wide-ranging that Defendants' contacts with California can be deemed to take the place of a physical presence in California. Consequently, the court finds that it cannot exercise general personal jurisdiction over Defendants.

As to specific personal jurisdiction, the court notes that the minimum contacts doctrine applies to each defendant individually. Put differently, the court must assess separately Ms. George's and the Committee's respective contacts with California. See Calder v. Jones, 465 U.S. 783, 790 (1984). Toward that end, the court finds that Plaintiff has not met its initial burden of proving by a preponderance of the evidence that Ms. George has sufficient minimum contacts with California such that the court may exercise personal jurisdiction over her. The only evidence Plaintiff has submitted is Mr. Carr's declaration. Mr. Carr refers to Ms. George and the Committee collectively as 'Defendants'. The Complaint likewise attributes the alleged breach of contract to both Ms. George and the Committee.

However, the 'evidence' submitted is devoid of a direct link between Ms. George and the alleged misconduct sufficient for the court to conclude that Ms. George purposefully availed herself of the benefits of California. For example, Mr. Carr alleges that in October 2021, Ms. George's Campaign Manager (i.e., not Ms. George personally) solicited CMI's services in helping to get Ms. George elected as Mayor of Boston. The services identified at ¶ 4 of Mr. Carr's declaration are services that CMI would perform for 'Defendants' – without reference to Ms. George specifically. However, there is no evidence that Ms. George, in her individual capacity, sought or retained CMI's services. Indeed, it is unclear, on the current record, who hired or retained CMI on the Committee's behalf. To the extent Plaintiff contends that Ms. George was aware of an alleged contract between Plaintiff and Defendants, such assertion is belied by Ms. George's declaration whereby she states that she: (1) never entered into an agreement with Plaintiff; (2) did not authorize the Committee or any other person or entity to enter into an agreement with Plaintiff; and (3) did not authorize the services allegedly performed by CMI. See George Decl., ¶ 5. This is supported by the exhibits attached to Mr. Carr's declaration, which exhibits show: (1) email communications between Mr. Carr and Ms. George's Campaign Manager; (2) payments made by the Committee to CMI; and (3) email and text message communications between Ms. George and Mr.

Carr which, at best, show that Ms. George was aware of an alleged balance owed to CMI in 2022 – after the alleged services were performed. Mr. Carr further describes communications with, and payments from, Ms. George's husband. However, this, without more, is insufficient for the court to exercise specific personal jurisdiction over Ms. George. Consequently, the court grants the motion to quash as to Ms.

George.

As to the Committee, the court finds that Plaintiff has not met its initial burden of demonstrating that the Committee has sufficient minimum contacts with California such that the court may exercise personal jurisdiction over the Committee. Unlike with Ms. George, Plaintiff has submitted evidence of invoices the Committee paid CMI for 'Robo calls'. Even if the court were to find that this is sufficient to establish the existence of a contract between Plaintiff and the Committee, which the court has not done for purposes of this ruling, the fact that a nonresident enters into a contract with a California does not per se establish the requisite minimum contacts for purposes of the court's specific personal jurisdiction analysis. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478-479 (1985); Goehring v. Sup. Ct. (1998) 62 Cal. App. 4th 894, 907; McGlinchy v. Shell Chemical Co., 845 F.2d 802, 816 (9th Cir. 1988). Courts consider a variety of factors in determining whether a nonresident contracting party has the requisite minimum contacts with California, including prior negotiations between the parties, contemplated future consequences, the contract's terms, and the parties' actual course of dealing. See Burger King Corp., 471 U.S. at 478.

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3103137 CASE NUMBER: CASE TITLE:  CARR MARKETING, INC VS ANNISSA ESSAIBI GEORGE  37-2023-00046037-CU-BC-NC In this case, Plaintiff has alleged that CMI and Defendants entered into a contract whereby CMI, a California resident, would provide voter outreach services to Boston residents on Defendants' behalf.

There is no evidence that CMI's services targeted California residents. Nor is there evidence that Defendants engaged in political or other activities in California (other than the alleged contract with Plaintiff). Furthermore, there is no evidence of prior dealings between the parties or other contractual terms including, for example, a choice-of-law provision or a forum selection clause. While the Committee allegedly derived a benefit from the alleged contract with CMI, there is no evidence that the Committee had a substantial connection to California or engaged otherwise in significant activities within California.

Furthermore, the fact that the parties may have contemplated that CMI would perform its services in California, a fact that has not been established by admissible evidence, is insufficient to create personal jurisdiction over the Committee – it is the nature and effect of the Committee's activity within California that provides the basis for jurisdiction. See, e.g., Belmont Industries, Inc. v. Sup. Ct. (1973) 31 Cal. App. 3d 281; Floyd J. Harkness Co. v. Amezcua (1976) 60 Cal. App. 3d 687; Beckman v. Thompson (1992) 4 Cal. App. 4th 481. In this case, the Committee's activity within California was minimal. Indeed, to the extent a contract exists, the Committee intended to utilize CMI's services to attract the support of Boston area voters in Massachusetts. Based on the foregoing, the court finds that Plaintiff has failed to demonstrate that the court may exercise specific personal jurisdiction over the Committee.

In light of the foregoing, the court grants Defendants' motion to quash service of summons and dismisses this action for lack of personal jurisdiction over Defendants.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, April 12, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of April 12, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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