Judge Daniel M. Crowley, Case Number: 24STCV01612, Date: 2024-08-08 Tentative Ruling

Specially Appearing Defendant Tempur Sealy International, Inc.’s motion to quash service of summons is denied.

Specially Appearing Defendant Tempur Sealy International, Inc. (“Tempur Sealy International”) (“Specially Appearing Defendant”) makes a special appearance for this Court to quash service of the summons and complaint served on it by Plaintiff Darryl Levings, Jr. (“Levings”) (“Plaintiff”) on the basis this Court lacks both general and specific jurisdiction over Tempur Sealy International and, therefore, cannot establish personal jurisdiction. (Notice of Motion, pg. 2; C.C.P. §418.10(a)(1).)

Plaintiff’s 7/29/24 request for judicial notice of (1) Minute Order filed on September 11, 2023, in Hernandez v. Datatracks, Inc., No. 23STCV16470 (Cal. Super. Ct. L.A. Cty. Sept. 11, 2023); (2) Minute Order filed on February 9, 2024, in Licea v. DAC Group/New York, Inc., No. 23STCV15816 (Cal. Super. Ct. L.A. Cty. Feb. 9, 2024); (3) Minute Order filed on May 1, 2024, in Valenzuela v. Livechat, Inc., No. 30-2023-01333056-CU-CR-NJC (Cal. Super. Ct. O.C. Cty. May 1, 2024); and (4) Minute Order filed on June 14, 2024, in Byars v. Bio Clarity LLC, No. 24STCV01349 (Cal. Super. Ct. L.A. Cty. June 14, 2024) is denied as not relevant.

On January 22, 2024, Plaintiff filed the operative Complaint against Specially Appearing Defendant alleging a single cause of action for violation of the California Invasion of Privacy Act (“CIPA”).

On March 28, 2024, Specially Appearing Defendant filed the instant motion. Plaintiff filed his opposition on July 29, 2024. As of the date of this hearing no reply has been filed.

“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.)

“The crucial inquiry concerns the character of defendant’s activity in the forum, whether the cause of action arises out of or has a substantial connection with that activity, and upon the balancing of the convenience of the parties and the interests of the state in assuming jurisdiction.” (Vons Companies, Inc., 14 Cal.4th at pg. 448, citing Cornelison v. Chaney (1976) 16 Cal.3d 143, 147-148). Jurisdiction is proper when the defendant’s contacts proximately result from its actions that create a “substantial connection” with the forum state. (Hanson v. Denckla (1958) 357 U.S. 235, 253.)

Plaintiff fails to demonstrate by a preponderance of evidence that Tempur Sealy International 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 Tempur Sealy International. (See Opposition, pg. 4.)[1] However, Plaintiff raises the argument that Tempur Sealy International has been registered to do business within the state of California and has registered agents for service of process located within California. (Opposition, pg. 14; Decl. of Ferrell ¶11, Exhs. 9-10.) Business licenses and service-of-process agents do not alone support general jurisdiction findings. (Gray Line Tours v. Reynolds Electrical & Engineering Co. (1987) 193 Cal.App.3d 190, 194; DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1095.)

Nonetheless, Plaintiff does demonstrate by a preponderance of evidence that Tempur Sealy International has sufficient contacts with California for this Court to exercise specific jurisdiction over it.

In the context of internet activity for jurisdictional purposes, the California Supreme Court adopted the “sliding scale” test set forth as follows:

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.

(Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 274, quoting Zippo Manufacturing Co. v. Zippo Dot Com, Inc. (W.D.Pa. 1997) 952 F.Supp. 1119, 1124.)

Plaintiff argues that Tempur Sealy International’s website is sufficiently interactive to subject it to personal jurisdiction because it functions as an online store. (Decl. of Ferrell ¶2, Exh. 1.) Plaintiff also states that the website expressly references the rights of Californians under the Consumer Privacy Act of 2018, and thus argues that the website was constructed with an eye toward California. (Decl. of Ferrell ¶5, Exh. 3.) Plaintiff thus distinguishes Tempur Sealy International’s website from Pavlovich, where the website had no interactive features nor reference to California and argues that it is sufficiently interactive and commercial to subject Tempur Sealy International to specific jurisdiction. (Pavlovich, 29 Cal.4th at pg. 274.)

For cases falling within the “middle ground” of the sliding scale, as Plaintiff admits that this case does, federal courts “have been less than consistent.” (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1064.) The California Supreme Court in Snowney declined to address what interactivity was required to establish personal jurisdiction because the website in that case spoke to the proximity of the defendant’s hotels to California and provided driving directions from California to those hotels. (Id. at pgs. 1064-1065.) However, the Court of Appeal stated in Thurston v. Fairfield Collectibles of Georgia, LLC that a facially neutral website through which a substantial number of sales of goods or services to California residents are made constitutes purposeful availment. (Thurston v. Fairfiled Collectibles of Ga., LLC (2020) 53 Cal.App.5th 1231, 1241.) Under California authority, even a small number of sales may be “substantial.” (As You Sow v. Crawford Laboratories, Inc. (1996) 50 Cal.App.4th 1859, 1864 [16 sales totaling no more than 1% of annual sales sufficient to establish personal jurisdiction].) That said, Plaintiff has offered no evidence of the quantity of sales made to California, even though the website appears to have been designed with this state in mind.

The Court therefore finds that Plaintiff has offered sufficient evidence to demonstrate purposeful availment through operation of its interactive website, and that the claim asserted arises out of those activities. The burden now shifts to Defendant to demonstrate that the exercise of jurisdiction would be unreasonable.

If a plaintiff has satisfied their burden on a motion to quash for lack of personal jurisdiction, the burden shifts to the moving party to demonstrate that the exercise of jurisdiction would be unreasonable. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 476-78.) The moving party must show that litigating the case in a foreign state would be “so gravely difficult and inconvenient that it would put him at a severe disadvantage in comparison to his opponent.” (Doe v. Damron (2021) 70 Cal.App.5th 684, 693.) Mere inconvenience is insufficient to defeat jurisdiction. (Id.)

When evaluating the reasonableness of the exercise of jurisdiction, Courts commonly balance several factors in making that determination, including (1) the extent of the defendant’s purposeful interjection into the forum state; (2) the burden on the defendant; (3) the extent of conflict with the sovereignty of the defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff’s interests in convenient and effective relief; and (7) the existence of an alternate forum. (See Core-Vent Corp. v. Nobel Indus. (9th Cir. 1993) 11 F.3d 1482, 1488-1489.)

Here, Specially Appearing Defendant offers no evidence demonstrating why the exercise of jurisdiction would be so inconvenient and difficult as to put it at a severe disadvantage. Mere statements that Specially Appearing Defendant has a principal place of business in Kentucky and does not have offices in California is not sufficient to demonstrate unreasonableness by itself, because those statements are not evidence of burden. (See Decl. of Millar ¶¶4, 8.) Specially Appearing Defendant has therefore failed to demonstrate that the exercise of personal jurisdiction would be unreasonable.

Based on the foregoing, Tempur Sealy International’s motion to quash service of summons is denied.

Specially Appearing Defendant Tempur Sealy International, Inc.’s motion to quash service of summons is denied.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court also notes Plaintiff’s Complaint states that Tempur Sealy International is a Delaware entity. (Complaint at pg. 1.)