Judge Daniel M. Crowley, Case Number: 23STCV16259, Date: 2023-12-04 Tentative Ruling

Specially Appearing Defendant Global Communications Group, Inc.’s motion to quash service of summons is granted.

Specially Appearing Defendant Global Communications Group, Inc. (“GCG”) makes a special appearance to quash the summons served on it in the instant matter for lack of personal jurisdiction. (Notice of Motion, pg. 2; C.C.P. §418.10.)

On July 12, 2023, Plaintiff filed his operative complaint against GCG alleging five causes of action: (1) California Unauthorized Access to Computer Data Act (Pen. Code §502); (2) California Invasion of Privacy Act (Pen. Code §§630-638); (3) invasion of privacy; (4) intrusion upon seclusion; and (5) publication of private information, arising from Plaintiff’s visit to Defendant’s website and communication with GCG. (See Complaint.)

On October 13, 2023, GCG made a special appearance to file the instant motion. On November 17, 2023, Plaintiff filed his opposition. On November 27, 2023, GCG filed its reply.

“When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.” (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868; see also Elkman v. National States Insurance Co. (2009) 173 Cal.App.4th 1305, 1312-1313 [“Where a nonresident defendant challenges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.”].)

California’s long-arm statute permits a court to exercise personal jurisdiction on any basis consistent with state or federal constitutional principles. (C.C.P. §410.10.) “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. Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449, citations omitted.) Plaintiffs must meet their initial burden by a preponderance of competent and relevant evidence, as shown in affidavits and documentary evidence. (See Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232-1233.)

“Personal jurisdiction may be either general or specific. 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.’ In such a case, ‘it is not necessary that the specific cause of action alleged be connected with the defendant’s business relationship to the forum.’ Such a 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 pgs. 445-446, citations omitted.)

“If the nonresident defendant does not have substantial and systematic contacts in the forum sufficient to establish general jurisdiction, he or she still may be subject to the specific jurisdiction of the forum, if the defendant has purposefully availed himself or herself of forum benefits, and the ‘controversy is related to or ‘arises out of’ a defendant’s contacts with the forum.’” (Id. at pg. 446, citations omitted.) The purposeful availment test is only satisfied if the defendant purposefully and voluntarily directs its activities toward California so that the defendant should expect, because of the benefits it receives, to be subject to jurisdiction here based on its contacts with California. (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.) Purposeful availment occurs when a nonresident defendant purposefully directs its activities at California residents, deliberately engages in significant activities here, or creates “continuing obligations” between itself and California residents. (Id. at pg. 1063.)

“To determine whether a Web site is sufficient to establish purposeful availment, we first look to the sliding scale analysis described in [Zippo Manufacturing Co.] v. Zippo Dot Com, Inc. (W.D.Pa.1997) 952 F.Supp. 1119. (See Pavlovich, supra, 29 Cal.4th at p. 274, 127 Cal.Rptr.2d 329, 58 P.3d 2.) ‘At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. [Citation.] At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. [Citation.] The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.’ (Zippo, at p. 1124.)” (Id., emphasis added.)

Plaintiff fails to demonstrate by a preponderance of evidence that GCG has sufficient contacts with California for this Court to exercise general jurisdiction over it. Plaintiff’s opposition does not explicitly argue the issue of general jurisdiction, and therefore concedes this Court lacks general jurisdiction over GCG. (See Opposition, pg. 8.)[1]

Plaintiff fails to demonstrate by a preponderance of evidence that GCG has sufficient contacts with California for this Court to exercise specific jurisdiction over it.

In tort cases, the “purposeful availment” requirement for specific jurisdiction is satisfied where the defendant engages (1) in intentional actions, (2) expressly aimed at the forum state, (3) causing harm, the brunt of which is suffered—and which the defendant knows is likely to be suffered—in the forum state. (Jewish Defense Organization, Inc. v. Superior Court (1999) 72 Cal.App.4th 1045, 1057, citing Calder v. Jones (1984) 465 U.S. 783.) Jewish Defense Organization, Inc. involved a suit for defamation that was subject to a motion to quash. The Jewish Defense Organization, Inc. Court stated that in defamation cases, the foreseeability element of the Calder test requires more than the likelihood that the defamatory statement might be published in the forum state; rather, it requires a foreseeability that the risk of injury would arise in that state. (Id. at pg. 1058-1059.) The Jewish Defense Organization, Inc. Court stated, “[t]here is an insufficient basis in this record to conclude that California is [plaintiff’s] principal place of business, or that the alleged defamation was targeted at California or would cause the brunt of the harm in California. Accordingly, there is insufficient evidence showing defendants’ minimum contacts with California under the analysis set out in cases dealing with defamation by nonresidents.” (Id. at pg. 1059.)

Plaintiff’s Complaint fails to allege facts regarding GCG’s site interactivity to subject it to a specific jurisdiction analysis for an interactive website. Plaintiff alleges in his unverified complaint that he “believes that Defendant generates a minimum of eight percent of revenues from its website based upon interactions with Californians (including instances in which the website operates as a ‘gateway’ to sales), such that the website ‘is the equivalent of a physical store in California.’” (Complaint ¶1.) Such an allegation is not sufficient to allege the interactivity and commercial nature of the exchange of information that occurs on GCG’s website. (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710 [“An unverified complaint has no evidentiary value in determination of personal jurisdiction.”].)

Plaintiff’s declaration submitted in his opposition states, “[i]n June 2023, I visited the website at https://gcgcom.com/ (the “Website”), and watched a video. I did not, however, become a customer of Defendant Global Communications Group, Inc.’s services advertised on the Website.” (Decl. of Licea ¶2.)

Plaintiff’s counsel’s declaration states, “[t]he Website has a hyperlink named ‘SCHEDULE A CONSULTATION’ near the top bottom of its homepage, which if clicked, takes the user to a landing page at the webpage at: https://gcgcom.com/schedule-consultation/. The landing page of the Website has a fillable form allowing an user to contact Defendant by inputting the user’s name, email address, telephone number, subject, and message.” (Decl. of Ferrell ¶5.) Plaintiff’s counsel’s declaration further states, “[t]he Website has a hyperlink in the bottom footer of its homepage entitled “Contact Us”, which if clicked, takes the user to a landing page entitled “Contact Us” at: https://gcgcom.com/contact/. The landing page of the Website has a fillable form allowing an user to contact Defendant by inputting the user’s name, email address, telephone number, subject, and message.” (Decl. of Ferrell ¶6.) Plaintiff’s counsel declares, “[t]he Website has a webpage entitled ‘Downloadable Brochures’ in which the user can download 12 different marketing brochures from a webpage at: https://gcgcom.com/resources/brochures/.” (Decl. of Ferrell ¶7.) Defendant’s counsel declares, “Defendant’s Website does not notify users that the access of California residents to use the Website is in any way restricted or precluded.” (Decl. of Ferrell ¶8.)

Plaintiff failed to meet his burden to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met to justify imposition of personal jurisdiction. None of the evidence submitted in Plaintiff’s declarations demonstrates the commercial nature of the exchange of information that occurs on GCG’s website such that it is subject to an analysis as an interactive website. (Snowney, 35 Cal.4th at pg. 1062.) Under an analysis as a passive website that has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions, there can be no such justification for exercising personal jurisdiction. (Id.)

GCG also submitted evidence refuting Plaintiff’s claim that GCG availed itself of doing business in California. GCG’s CEO, Joel St. Germain (“St. Germain”), declares, “GCG is a business technology consulting firm that delivers a host of cloud-based, data center, and Internet technologies to a range of corporate customers to improve their day-to-day operations. GCG does not generally sell or market its software or services to individual consumers.” (Decl. of St. Germain ¶3.) St. Germain declares, “[n]o revenue is generated from GCG’s website, as it is not possible to purchase products or services via GCG’s website. GCG generates no revenue from California, from its website or otherwise.” (Decl. of St. Germain ¶7.) St. Germain declares that GCG has no customers located in California and has never targeted California with California-specific advertisements. (Decl. of St. Germain ¶¶7-8.)

Assuming, arguendo, Plaintiff met its burden on this motion and shifted the burden to GCG to demonstrate the exercise of jurisdiction would be unreasonable, GCG met its burden. (Doe v. Damron (2021) 70 Cal.App.5th 684, 693, as modified (Nov. 9, 2021).) Relevant interests include, among others, the forum state’s interest in adjudicating the case, the plaintiff’s interest in obtaining convenient and effective relief, and the burden on the defendant of appearing in the forum. (Id.) GCG has no offices, property, or employees in California, and therefore all GCG’s witnesses reside out of state. (See Decl. of St. Germain ¶¶ 5-6; Roman v. Liberty University, Inc. (2008) 162 Cal.App.4th 670, 684 [weighing heavily factor in personal jurisdiction analysis where “most of the witnesses” were beyond the subpoena power of California courts].) While California has substantial interests in protecting its residents in lawsuit alleging torts, such interests “simply do not make California a ‘fair forum’” on their own, which is especially true here because Plaintiff can point to no contacts between GCG and California that are related to his claims. (See Kulko v. Superior Court of California In & For City & Court of San Francisco (1978) 436 U.S. 84, 100-101.)

Specially Appearing Defendant GCG’s motion to quash service of summons is granted.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court also notes Plaintiff’s Complaint states that GCG is a Colorado company located in Centennial, Colorado. (Complaint ¶4.)