Judge David S. Cunningham, Case JCCP5052 2022-10-18 Tentative Ruling

Tentative Ruling Re: Motion for Reconsideration and Renewal Re: Motion to Quash

Moving Party: Summer Montelaro (“Montelaro”), Amanda Cucchi (“Cucchi”), LaDonna Lee Johnson (“Johnson”), Trevon Jackson (“Jackson”), Taylor Clapper (“Clapper”), Nassim Khamissi (“Khamissi”), Peyton Dodson (“Dodson”), Tiffiny Richardson (“Richardson”), Bailey Chiquet (“Chiquet”), Sulaiman Mirza (“Mirza”) (jointly “Plaintiffs” or “Out-of-State Plaintiffs”)

Opposing Party: Altria Group, Inc., et al. (jointly “Altria” or “Altria Defendants”)

JUUL Labs, Inc. (“JLI”) “is a Delaware corporation,” and “its principal place of business [is] in San Francisco, California.” [Citations.]

The Altria Defendants are incorporated and headquartered in Virginia. [Citation.]

Plaintiffs reside in Alabama (Montelaro), Pennsylvania (Cucchi), Colorado (Johnson and Mirza), Michigan (Jackson and Clapper), Illinois (Khamissi), Arkansas (Dodson), Oregon (Richardson), and Louisiana (Chiquet).

* Montelaro v. JUUL Labs, Inc., San Francisco County Superior Court (CGC-19-579617).

The complaints generally allege that the Altria Defendants participated with JLI in manufacturing, marketing, and distributing e-cigarettes. Plaintiffs claim they bought and used the JUUL products and suffered injuries as a result. They assert causes of action for strict liability, as well as negligence-based claims, fraud-based claims, and claims for violation of the Unfair Competition Law, violation of the False Advertising Law, breach of the implied warranty, and aiding and abetting.

. . . the Altria Defendants move[d] to quash for lack of personal jurisdiction. The initial hearing took place on 1/26/22. During Plaintiffs’ counsel’s evidentiary presentation, she informed the Court that “significant discovery” had been conducted in the JUUL multidistrict litigation (“MDL”) in federal court over the past year. [Citation.] The Court ended up granting the motion as to general jurisdiction and continuing the hearing as to specific jurisdiction to give Plaintiffs a chance to supplement the record. The Court granted both sides leave to file supplemental briefs.

The Court held the continued hearing on 6/21/22. Plaintiffs’ counsel made another evidentiary presentation, the Altria Defendants’ counsel received equal time to respond, and the Court took the matter under submission.

(7/29/22 Statement of Decision Re: Motion to Quash under Submission, pp. 1-2, footnote omitted.)

On 7/29/22, “the Court announce[d] its ruling[.]” (Id. at p. 2.) The Court found that “Plaintiffs faile[d] to satisfy the ‘relatedness’ prong” (id. at p. 19) and granted the motion. (See id. at p. 20.)

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

A subsection (a) motion is a reconsideration motion. (See, e.g., Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 9:324.)

* it can only be brought by the party who filed the original motion (see ibid.);

“Although the defendant is the moving party and must present some admissible evidence (declarations or affidavits) to place the issue [of personal jurisdiction] 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.” (School Dist. of Okaloosa County v. Superior Court (1997) 58 Cal.App.4^th 1126, 1131.)

Case law “recognize[s] two types of personal jurisdiction: ‘general’ (sometimes called ‘all-purpose’) jurisdiction and ‘specific’ (sometimes called ‘case-linked’) jurisdiction.” (Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County (2017) 137 S.Ct. 1773, 1779-1780 ([“Bristol-Myers”]).) Only specific jurisdiction is at issue here.

“When determining whether specific jurisdiction exists, courts consider the ‘relationship among the defendant, the forum, and the litigation.’” (Halyard Health, Inc. v. Kimberly-Clark Corp. (2019) 43 Cal.App.5^th 1062, 1070.) “[C]ourts focus on the nature and quality (not the quantity) of defendant’s activity in the forum state.” (Weil & Brown, [supra, at] ¶ 3:240.) “[S]ingle or occasional acts of the corporate agent in a state” may be adequate as long as the lawsuit relates to the “in-state activity.” (Daimler AG v. Bauman (2014) 571 U.S. 117, 127 (“Daimler”); see also Weil & Brown, supra, at ¶ 3:240.1 [“Provided a ‘substantial connection’ with the forum is created thereby, even a single act may support specific personal jurisdiction over a nonresident.”].)

* purposeful availment – the defendant made purposeful contacts with the forum;

* relatedness – the litigation arises out of or relates to the defendant’s forum contacts; and

* reasonableness – the forum’s “assertion” of specific jurisdiction “comport[s] with ‘fair play and substantial justice[.]’” (Halyard Health, supra, 43 Cal.App.4^th at 1070.)

Plaintiffs request reconsideration of the 7/29/22 order pursuant to section 1008(a). (See Notice of Motion, p. 2.)

Plaintiffs filed the motion on 8/5/22, less than 10 days after the Court issued the 7/29/22 order, so it is timely. (See Weil & Brown, supra, at ¶ 9:324 [noting that a motion for reconsideration must be “made within 10 days after service upon the party of notice of entry of the order”], emphasis in original.)

The real question is whether the motion is “based on ‘new or different facts, circumstances or law’ than those before the court at the time of the original ruling[.]” (Ibid., emphasis in original.)

Plaintiffs contend the answer is yes. The Second District Court of Appeal decided Daimler Trucks North America, LLC v. Superior Court (2022) 80 Cal.App.5^th 946 (“Daimler Trucks”) on 7/7/22. Plaintiffs argue that it “constitutes a material change in the law because it demonstrates that the state in which a plaintiff suffers injury is not dispositive when a non-resident defendant challenges specific jurisdiction.” (Motion, p. 4, capitalizing and bolding deleted.) They say they could not have cited it sooner since it came down after they filed their briefs and the Court heard oral arguments. (See id. at p. 9.)

The Altria Defendants assert that Daimler Trucks “applied existing authority – including the same cases this Court applied and the same cases Plaintiffs previously cited – and reached a conclusion based on the factual record presented.” (Opposition, p. 5.) They contend “[a]pplying established legal standards to the facts of a specific case does not constitute a ‘change in law’ at all, let alone the kind of change in law needed to support reconsideration.” (Ibid.) Moreover, they claim “Daimler Trucks was decided more than three weeks before the Court’s ruling, and Plaintiffs thus had an adequate opportunity to bring the decision to the Court’s attention.” (Ibid., underlined case name added.)

Daimler Trucks arose from a truck accident. The plaintiff was a California resident. He and his long-haul co-driver were driving a Daimler Freightliner Cascadia truck on a return trip to California from New Jersey. In Oklahoma, the truck crashed, and the plaintiff suffered serious injuries. Then he and his wife sued Daimler for products liability, negligence, and loss of consortium.

Daimler responded with a motion to quash, arguing that “it was not subject to specific jurisdiction in California, primarily because the causes of action did not arise out of or relate to its forum-related activities.” (Daimler Trucks, supra, 80 Cal.App.5^th at 951.) Daimler said it “did not engage in any activity dealing with the subject Freightliner Cascadia that took place in, or was directed at, California.” (Ibid.) “According to Daimler, no activity in California caused the injuries.” (Ibid.)

Daimler was subject to specific jurisdiction because it had purposefully availed itself of the privilege of doing business in California by marketing, selling, and servicing within the state the same model of Freightliner truck involved in the accident. The Cascadia was specifically designed for long hauls, and “was outfitted with a specially designed sleeping compartment for this purpose.” And because Daimler had “systematically served a market in California for the very vehicle that the Plaintiffs allege was defective and injured them,” Hu's claims related to Daimler's contacts with California. Other ties to California were that Mr. Hu and his wife are California residents, Mr. Hu was working for a California company and driving to California at the time of the accident, the subject vehicle was purchased in California, and the bulk of the damages for pain and suffering and medical expenses occurred and would continue to occur in California. Hu continued that, by marketing, selling, servicing and supporting their Freightliner trucks in California, Daimler had notice it could be subject to suit there. The fact the particular truck involved in this litigation came to California through an intermediary did not make jurisdiction unfair, especially because Daimler certainly understood that some of its trucks likely would be resold in California. That the injury occurred out of state did not defeat jurisdiction either. Daimler's extensive business operations in this state supported a finding of personal jurisdiction, as did the fact that it knew—and its marketing campaign promoted—that the Freightliner trucks would be used by its owners for cross-country transportation. According to Hu, a necessary incident of Daimler's business was the risk that its activities in any state could foreseeably cause injury to a person in a distant forum.

[t]he trial court found that the second prong was also met — the claims themselves were sufficiently related to Daimler's “selling of Freightliner trucks in California.” Mr. Hu and his wife were California residents, Mr. Hu was headed to California to deliver goods when the accident occurred, the subject vehicle was purchased in California, and Daimler intended the vehicle to be driven in interstate transport. That the accident occurred in Oklahoma on the way to California did not negate that the claims arose out of or had a substantial connection with a business relationship Daimler purposefully established with California. Where “Daimler knowingly promotes and directs to California residents the sale and servicing of its truck designed to transport goods across multiple states, and where a California resident is injured transporting goods across states lines to California while in one of those trucks (which had been sold in California to a California company), that resident's claims of injury are sufficiently related to Daimler's activities in California, even if the accident causing the injury happened to occur in another State while defendant's truck was en route to California.”

“In its writ petition,” Daimler primarily alleged that “the trial court . . . failed to identify the requisite direct causal connection or relationship between the injuries and Daimler's activities in California.” (Id. at 954.) Daimler argued that the plaintiff’s claims did not “‘relate to’ Daimler’s activities in California for two reasons: (1) Daimler ‘did not design, manufacture, assemble, or sell the subject vehicle in California’ and (2) ‘the injuries and accident occurred in Oklahoma.’” (Id. at 957, emphasis in original.)

The Court of Appeal disagreed. Affirming the trial court, the Court of Appeal analogized Ford Motor Company v. Montana Eighth Judicial District Court (2021) 141 S.Ct. 1017 (“Ford”) and distinguished Bristol-Myers, supra, 137 S.Ct. 1773:

As for the claim that specific jurisdiction is lacking because Daimler did not design, manufacture, assemble, or sell the very Freightliner involved in California, that argument was squarely rejected by the high court in Ford. Much like the present case, Ford's forum-related activities with the two Ford vehicles involved in the Montana and Minnesota accidents was virtually non-existent, as Ford had not designed, manufactured, or sold the subject vehicles in those states. (Ford, supra, 141 S.Ct. at p. 1023.) The Supreme Court was unconvinced that jurisdiction could only exist if the company had designed, manufactured, or sold in the state the particular vehicle involved in the accident. “[T]hat argument merely restates Ford's demand for an exclusively causal test of connection — which we have already shown is inconsistent with our caselaw.” (Id. at p. 1029.) The systematic contacts in the forum states (including contacts as to the specific types of vehicles at issue) rendered Ford accountable for the in-state accidents despite the out of state sale, even if the contacts in the forum states did not directly cause the injuries. (Ibid.) This would remain the case even if, as Ford suggested, that without the company's Montana or Minnesota contacts, the plaintiffs’ claims would be the same. (Ibid.) The fact remains that Daimler's Freightliner trucks were manufactured and marketed for precisely this type of intercontinental long haul trip. Daimler sold the California market on trips that emanate from California to other states and back, exactly the use present here.

As for Daimler's argument that jurisdiction was defeated because the accident did not occur in California, Ford deemed the place of injury as something that “may be relevant in assessing the link between the defendant's forum contacts and the plaintiff's suit,” but did not hold that an in-state injury was a prerequisite for jurisdiction. (Ford, supra, 141 S.Ct. at pp. 1031-1032.) As observed by Ford’s concurring justices, what would suffice for a claim to “relate to” a defendant's forum contacts was left rather undefined, with the majority simply stating “relate to” “does not mean anything goes,” and “incorporates real limits.” (Id. at p. 1026.) To give an example of the absence of specific jurisdiction under the “relate to” standard, the court discussed this hypothetical: a California court hearing a claim against Ford brought by an Ohio plaintiff based on an accident occurring in Ohio involving a car purchased in Ohio. (Id. at p. 1027, fn. 3.) The example matches neither the facts of Ford nor the present case. It does, however, bear some resemblance to [Bristol-Myers], a case Daimler argues negates jurisdiction over injuries arising from the Oklahoma accident.

In Bristol-Myers, the plaintiffs brought suit in California based on injuries they suffered after taking the prescription drug Plavix. The defendant was a pharmaceutical company incorporated in Delaware, headquartered in New York, with operations in New York and New Jersey. The company engaged in some research, sales, and government advocacy activities in California, none involving Plavix, although it sold the drug there. The company did not develop Plavix in California, create a marketing strategy for Plavix in California, or manufacture, label, package, or do business in California on the regulatory approval of the product. The plaintiffs included nonresidents who did not obtain Plavix through a California source, did not ingest Plavix in California, were not injured by Plavix in California, and were not treated for injuries in California. (Id. at pp. 1778, 1781.) The Court concluded California was not the appropriate forum for those plaintiffs: “What is needed—and what is missing here—is a connection between the forum and the specific claims at issue.” (Id. at p. 1781.)

The Ford court reminded that jurisdiction was lacking in Bristol-Myers “because the forum State, and the defendant's activities there, lacked any connection to the plaintiffs’ claims.” (Ford, supra, 141 S.Ct. at p. 1031.) The Bristol-Myers plaintiffs were “engaged in forum-shopping — suing in California because it was thought plaintiff-friendly, even though their cases had no tie to the State.” (Ibid.)

The Ford court found important distinctions between its case and Bristol-Myers, distinctions that we find exist here. That Mr. Hu and his wife are both California residents weighs in favor of specific jurisdiction. A plaintiff's residence can “be relevant in assessing the link between the defendant's forum contacts and the plaintiff's suit.” (Ford, supra, 141 S.Ct. at pp. 1031-1032.) The Ford court found that the plaintiffs’ residency in the forum states supported jurisdiction, and the plaintiffs’ lack of forum residency weighed against personal jurisdiction in Bristol-Myers. (Id. at p. 1031; Bristol-Myers, supra, 137 S.Ct. at p. 1782.) Mr. Hu also used the allegedly defective subject vehicle in California, as the outbound leg of his travel that resulted in his injuries began in California. Ford found that the subject vehicles’ use in the forum states supported jurisdiction there, and stood in contrast to the fact that the Bristol-Myers plaintiffs did not ingest Plavix in California. (Ford, at p. 1031; Bristol-Myers, at p. 1781.) Bristol-Myers differs from the present case in another significant way, although one not discussed in Ford — In Bristol-Myers, the Court observed that the nonresident plaintiffs did not seek treatment for their injuries in California and did not claim to have suffered harm in that state. (Bristol-Myers, at pp. 1778, 1781, 1782.) In contrast, Hu seeks recovery of damages for, among other things, past and future medical expenses and loss of consortium. As Mr. Hu and his wife are California residents, medical expenses will have been incurred in California, and the harm due to the loss of consortium would have been suffered in California. Finally, as in Ford (but not Bristol-Myers), Daimler has “systematically served [the California] market” by advertising, selling, and servicing Freightliner trucks (including Cascadias) in California. (Ford, supra, 141 S.Ct. at p. 1028.)

We conclude that Daimler's activities supporting the sale and service of the Freightliner Cascadia in this state, and the other facts that we have discussed, demonstrate that Hu's claims “relate to” those very California activities.

Daimler Trucks is new law in the sense that the Court of Appeal published it while Altria’s motion to quash was under submission, but more is required. Daimler Trucks was decided on 7/7/22, it was modified on 7/22/22, and the Court ruled on the motion to quash on 7/29/22. Plaintiffs had sufficient time to file a notice of new authority or an ex parte application to make the Court aware of the decision.

Regardless, the Court agrees with Altria that Daimler Trucks fails to change the law. The decision relies on Ford and Bristol-Myers. The Court of Appeal simply applied the Ford and Bristol-Myers rules to the facts and did not create a new rule. (See Ford, supra, 141 S.Ct. at 1031-1032 [finding, pre-Daimler Trucks, that “the place of the plaintiff’s injury and residence” “may be relevant” but is not conclusive].)

Even assuming Daimler Trucks meets the reconsideration standard, it is distinguishable and fails to compel a different result:

* the Daimler Trucks plaintiffs were California residents (see Daimler Trucks, supra, 80 Cal.App.5^th at 958);

* Daimler manufactured and marketed Freightliner Cascadia trucks for “intercontinental long haul[s]” and “sold the California market on trips that emanate from California to other states and back” (id. at 957);

* the plaintiff’s employer purchased the subject truck in California (see id. at 950);

* the plaintiff drove the truck in California, “as the outbound leg of his travel that resulted in his injuries began in California” (id. at 958);

* the plaintiffs “sought damages for loss of consortium and injuries treated in California” (Motion, p. 6; see also Daimler Trucks, supra, 80 Cal.App.5^th at 959 [reasoning that, “[a]s Mr. Hu and his wife are California residents, medical expenses will have been incurred in California, and the harm due to the loss of consortium would have been suffered in California”]).

Ford remains instructive. “In footnote 3, the Supreme Court rejects the notion that ‘a California court could hear a claim against Ford brought by an Ohio plaintiff based on an accident occurring in Ohio involving a car purchased in Ohio[,]’ which, again, is the purported and equivalent situation here.” (7/29/22 Statement of Decision Re: Motion to Quash under Submission, p. 10 [quoting Ford, supra, 141 S.Ct. at 1027 n.3], emphasis in original.)[1]

Plaintiffs’ request for renewal (see Notice of Motion, p. 2) fails for the reasons stated above and because it fails to comply with section 1008(b) given that Altria, not Plaintiffs, was the moving party on the original motion. (See Weil & Brown, supra, at ¶ 9:337.)

Plaintiffs’ counsel asserted at the hearing that Plaintiffs have not conducted discovery. (See, e.g., 6/21/22 Tr., pp. 43:20-24.) To the extent she meant to request a discovery continuance, the request is denied. An extra continuance would be inappropriate and fruitless because:

* the Court already granted a continuance to allow Plaintiffs to supplement the record with discovery from the MDL; and

* [Bristol-Myers], Ford, Jayone, and the parties’ other authorities tend to reject Plaintiffs’ specific jurisdiction theories.

(7/29/22 Statement of Decision Re: Motion to Quash under Submission, pp. 19-20.)

Plaintiffs assert that the Court erred “because (1) Daimler Trucks relies heavily on Daimler’s forum related conduct, and (2) plaintiffs are generally entitled to conduct discovery with regard to a jurisdictional issue before a court rules on a motion to quash.” (Motion, p. 9, underlined case name added.)

Plaintiffs’ second point appears contrary to the facts. “At the [1/26/22] hearing, the Court said it was ‘inclined’ to grant Plaintiffs’ request for jurisdictional discovery.” (Opposition, p. 12; see also Kouba Decl., Ex. 1, pp. 45-46.) Instead, Plaintiffs’ counsel asked for an opportunity to look at the discovery produced in the MDL. He offered to report back to the Court by 3/4/22 to state whether he needed further discovery to support Plaintiffs’ supplemental opposition to the motion to quash. (See id. at Ex. 1, p. 79.) The Court agreed. (See 1/26/22 Minute Order, p. 12 [noting that “[t]he Court requests additional briefing on Altria’s Motion to Quash after giving Plaintiffs time to review existing discovery and, if necessary, ordering jurisdictional discovery”], emphasis added.) On 3/2/22, Plaintiffs’ counsel posted a message on Case Anywhere that said they did not “need additional jurisdictional discovery . . . .” (Kouba Decl., Ex. 2, p. 1 [stating that “Private Plaintiffs’ Counsel believe they DO NOT need additional jurisdictional discovery in order to supplement their brief in opposition to the Altria Defendants’ Motion to Quash”], capitalizing in original, emphasis added.)

[1] In contrast to the situation here, Ford states that Daimler, supra, 571 U.S. 117 provides “an illustration – even a paradigm example – of how specific jurisdiction works”: “A California court would exercise specific jurisdiction ‘if a California plaintiff, injured in a California accident involving a Daimler-manufactured vehicle, sued Daimler [in that court] alleging that the vehicle was defectively designed.’” (Ford, supra, 141 S.Ct. at 1028, emphasis added.)