Judge: Frank M. Tavelman, Case: BC688321, Date: 2022-10-28 Tentative Ruling
Case Number: BC688321 Hearing Date: October 28, 2022 Dept: A
LOS
ANGELES SUPERIOR COURT
NORTH
CENTRAL DISTRICT - BURBANK
DEPARTMENT
A
TENTATIVE
RULING
MOTION
TO DISMISS BASED UPON LACK OF PERSONAL JURISDICTION
Los Angeles Superior Court
Case # BC688321
|
MP: |
Power
Max Electric Company Ltd. Guangdong (Specially Appearing Cross-Defendant) |
|
RP: |
Air Vent, Inc. (Defendant and Cross-Complainant) |
ALLEGATIONS:
Plaintiff State Farm General Insurance Company (“Plaintiff”)
filed suit against Defendants Air Vent, Inc., DM (Asia) Limited, Powermax Electric
Co., Ltd. Guangdong (as Doe 1), King of Fans, Inc. (as Doe 2), and Chien Luen
Industries Co., Ltd. (as Doe 3) (collectively, “Defendants”), alleging the
following facts. Pursuant to the terms
of a policy of insurance, Plaintiff provided homeowners insurance to Connie and
Jerry Deckelman (“Non-Party Insureds”).
Non-Party Insureds purchased a ventilation fan from Defendant Air Vent,
Inc., which was installed in Non-Party Insureds’ home in Burbank, California. Defendant Air Vent, Inc. purchased the motor
of the subject ventilation fan from the remaining Defendants, who manufactured
and designed the motor of the ventilation fan.
Subsequently, on October 6, 2016, the ventilation fan caught fire and
destroyed Non-Party Insureds’ home. Pursuant
to the terms of Non-Party Insureds’ insurance policy, Plaintiff reimbursed
Non-Party Insureds for the damage caused to their home, equal to approximately
$1,302,750.95. Plaintiff brings this subrogation action to collect the amount
paid to Non-Party Insureds.
Plaintiff filed a Complaint on January 3, 2018
alleging four causes of action: (1) Subrogation; (2) Negligence; (3) Indemnity;
and (4) Breach of Warranty.
Subsequently, on August 23, 2018, Defendant Air
Vent, Inc. (“Defendant and Cross-Complainant Air Vent, Inc.) filed a
Cross-Complaint against Cross-Defendants Powermax Electric Co., Limited
Guangdong, King of Fans, Inc., and Chien Luen Industries Co., Ltd. (collectively
“Cross-Defendants”), alleging Cross-Defendants negligently manufactured and
sold the defective motor of the subject ventilation fan to Cross-Complainant
for sale to the public.
Defendant and Cross-Defendant Air Vent, Inc.’s
Cross-Complaint alleges four cases of action: (1) Strict Products Liability;
(2) Equitable Indemnity; (3) Equitable Apportionment; and (4) Declaratory
Relief.
HISTORY:
The
Court received the Motion filed by Powermax Electric Co., Ltd. Guangdong on March
30, 2022. The Court received the
opposition to the Motion filed by Air Vent, Inc. on October 17, 2022. The Court received the reply to the Motion
filed by Powermax Electric Co., Ltd. Guangdong on October 21, 2022.
RELIEF
REQUESTED:
Powermax
Electric Co., Ltd. Guangdong moves for an Order dismissing Defendant and
Cross-Complainant Air Vent, Inc.’s Cross-Complaint insofar as asserted against
Specially Appearing Cross-Defendant Powermax Electric Co., Ltd. Guangdong.
ANALYSIS:
I.
LEGAL STANDARD
A. Legal Standard—Motion to Dismiss
Pursuant to Code of Civil Procedure Section 583.250
“The summons and
complaint shall be served upon a defendant within three years after the action
is commenced against the defendant. For the purpose of this subdivision, an
action is commenced at the time the complaint is filed.” (Cal. Code Civ. Proc.
§ 583.210, subd. (a).)
“If service is not made
in an action within the time prescribed in this article: (1) The action shall
not be further prosecuted and no further proceedings shall be held in the
action. (2) The action shall be dismissed by the court on its own motion or on
motion of any person interested in the action, whether named as a party or not,
after notice to the parties.” (Code Civ. Proc. § 583.250, subd. (a).) “The
requirements of this article are mandatory and are not subject to extension,
excuse, or exception except as expressly provided by statute.” (Code Civ. Proc.
§ 583.250, subd. (b).)
“In computing the time
within which service must be made pursuant to this article, there shall be
excluded the time during which any of the following conditions existed: (a) The
defendant was not amenable to the process of the court. (b) The prosecution of
the action or proceedings in the action was stayed and the stay affected
service. (c) The validity of service was the subject of litigation by the
parties. (d) Service, for any other reason, was impossible, impracticable, or
futile due to causes beyond the plaintiff's control. Failure to discover
relevant facts or evidence is not a cause beyond the plaintiff's control for
the purpose of this subdivision.” (Code Civ. Proc. § 583.240, subd. (a)-(d).)
“If service is not made
in an action within the time prescribed in this article: (1) The action shall
not be further prosecuted and no further proceedings shall be held in the
action. (2) The action shall be dismissed by the court on its own motion or on
motion of any person interested in the action, whether named as a party or not,
after notice to the parties.” (Code Civ. Proc. § 583.250, subd. (a).) The
statute further provides, “[t]he requirements of this article are mandatory and
are not subject to extension, excuse, or exception except as expressly provided
by statute.” (Code Civ. Proc. § 583.250, subd. (b).)
B. Legal Standard—Motion to Dismiss
Pursuant to Code of Civil Procedure 418.10
“A defendant
. . . may serve and file a notice of motion for one or more of the following
purposes: (1) To quash service of
summons on the ground of lack of jurisdiction of the court over him or her. . .
.” (Code Civ. Proc., § 418.10, subd.
(a).)
A non-resident defendant may be subject to either
general or specific jurisdiction. (See Elkman v. National States Insurance
Co. (2009) 173 Cal.App.4th 1305, 1314.)
General jurisdiction exists when a defendant is domiciled in the forum
state or his activities there are substantial, continuous, and systematic. (F. Hoffman-La Roche, Inc. v. Sup. Ct.
(2005) 130 Cal.App.4th 782, 796.) “In
such circumstances, it is not necessary that the specific cause of action
alleged be connected with the defendant’s business relationship to the
forum.” (Id.) “The standard for establishing general
jurisdiction is ‘fairly high,’ [citation] and requires that the defendant’s
contacts be of the sort that approximate physical presence.” (Elkman, supra,
173 Cal.App.4th at 1315 (emphasis in original).) “Factors to be taken into consideration are
whether the defendant makes sales, solicits or engages in business in the
state, serves the state’s markets, designates an agent for service of process,
holds a license, or is incorporated there.” (Id.)
“Where general jurisdiction cannot be established,
a court may assume specific jurisdiction over a defendant in a particular case
if the plaintiff shows the defendant has purposefully availed himself or
herself of forum benefits; [to wit] the nonresident purposefully
directed its activities at forum residents or purposefully availed itself of
the privilege of conducting activities within the forum state, thus invoking
the benefits and protections of local law.
(Hanson v. Denckla (1958) 357 U.S. 235.)
In California, specific jurisdiction involves a three-part
test: (1) The nonresident defendant must engage in an act or consummate a
transaction by which they purposefully avail themselves of the privilege of
conducting activities in this state, thereby invoking the benefits and
protections of its laws; (2) the claim must be one which results from the
defendant's forum-related activities; and (3) exercise of jurisdiction must be
reasonable. (Jewish Defense Organization, Inc. v. Sup. Ct. of Los Angeles
County (1999) 72 Cal.App.4th 1045, 1054, citing Panavision
International, L.P. v. Toeppen (9th Cir. 1998) 141 F.3d 1316, 1320
[applying California law].) Purposeful
availment requires affirmative conduct promoting the transaction.
When a motion to quash is brought, the plaintiff
has the burden of proof to establish the facts supporting jurisdiction by a
preponderance of the evidence. (Aquila,
Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568; see also Elkman, supra,
173 Cal.App.4th at 1312-1313 [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]; see also Summers
v. McClanahan (2006) 140 Cal.App.4th 403, 413 [“[w]hen a defendant
challenges the court’s personal jurisdiction on the ground of improper service
of process, the burden is on the plaintiff to prove the existence of
jurisdiction by proving, inter alia, the facts requisite to an effective
service”].)
II.
MERITS
Powermax
Electric Co., Ltd moves for an Order dismissing Air Vent, Inc.’s
Cross-Complaint against Powermax.
Powermax
asserts two grounds to dismiss: (1) the Court has a mandatory duty to dismiss
the subject Cross-Complaint pursuant to Code of Civil Procedure section 583.250
because Air Vent, Inc. failed to serve process upon Powermax within three years
from the date of the Cross-Complaint’s filing; and (2) the Court must properly
dismiss the Cross-Complaint because the Court is without personal jurisdiction
over Powermax.
The
Court addresses the grounds asserted by Powermax below.
A. Merits—Motion to Dismiss Pursuant to
Code of Civil Procedure Section 583.250
Specially Appearing Cross-Defendant Powermax moves
to dismiss Defendant and Cross-Complainant Air Vent, Inc.’s Cross-Complaint on
the ground Air Vent, Inc. failed to effectuate serve of the Summons and
Cross-Complaint upon Powermax within three from the date the Cross-Complaint
was filed.
Code of Civil Procedure section 583.250,
subdivision (a)(2) provides, the Court “shall” dismiss an action where service of the summons
and complaint is not made upon a defendant “within three years after the action
is commenced against the defendant.”
(Code Civ. Proc., §§ 583.210, subd. (a), 583.250, subd. (a)(2).) As defined by Code of Civil Procedure section
583.110:
-
“action”
includes an action commenced by cross-complaint,
-
“defendant”
includes a cross-defendant,
-
“complaint”
includes a cross-complaint. (Id.,
§ 583.110, subd. (a), (b), (d).),
-
an
action is “commenced” at the time the complaint is filed. (Id., § 583.210, subd. (a).)
The three-year service requirement is “mandatory” and is
“not subject to extension, excuse, or exception except as provided by
statute.” (Id., § 583.250,
subd. (b).)
Following a review of the Court’s records, the
Court notes Air Vent, Inc. filed the subject Cross-Complaint on August 23,
2018. Pursuant to the three year
“mandatory” service requirement enumerated within Code of Civil Procedure
section 528.210, subdivision (a), Air Vent, Inc. was required to serve Powermax
no later than Monday, August 23, 2021. Air
Vent, Inc. has failed to effectuate service of the Summons and Cross-Complaint
by this three-year deadline.
The Court is aware that, approximately November 8,
2021, Judge W. Stewart (now retired) granted Air Vent, Inc.’s Ex Parte Application,
requesting an Order appointing Crowe Foreign Services as an International
Process Server for the purposes of effectuating service of the Cross-Complaint
upon Powermax. However, the Court notes
Air Vent, Inc. has not filed a “Proof of Service” which confirms service was
successfully made upon Powermax. However,
in the present Motion, Powermax provides, “[t]he Cross-Complaint . . . was
served on Powermax pursuant to the Hague Convention on or about March 1,
2022.” (Mot., at p. 14:13-14.) The Court accepts the admission of Powermax
concerning proof of service; however, the Court observes the “Proof of Service”
would reflect that service was made approximately six months and six days beyond
the three-year deadline of August 23, 2021.
In Opposition, Air Vent, Inc., the Responding
Party, fails, to address this ground for dismissal advanced by the Moving
Party, Powermax. Air Vent, Inc.’s
Opposition is dedicated entirely to addressing Powermax’s latter argument
concerning the Court’s lack of personal jurisdiction. Accordingly, Air Vent, Inc. fails to provide
this Court with any persuasive argument which demonstrates service was made
within the three year “mandatory” deadline, or that an extension of the three
year “mandatory” deadline was warranted pursuant to Code of Civil Procedure
section 583.240. (Code Civ. Proc.
§ 583.240, subd. (a)-(d).)
Based on the foregoing,
the Court concludes dismissal of Air Vent’s Cross-Complaint against Powermax is
warranted, pursuant to Code of Civil Procedure section 583.250, subdivision (a)(2). (Code Civ. Proc., § 583.250, subd. (a)(2).)
B. Merits— Motion to Dismiss Pursuant to
Code of Civil Procedure 418.10
The Court chooses to address Powermax’s additional
ground for dismissal, the Court’s purported lack of personal jurisdiction,
under Code of Civil Procedure section 418.10.
Powermax moves for an Order dismissing the relevant
Cross-Complaint on the ground the Court lacks personal jurisdiction. Powermax contends this Court lacks general
and personal jurisdiction over them because Powermax is incorporated and
maintains its principal place of business within the People’s Republic of China
and has not purposefully marketed or sold any electric motors in the State of
California. Powermax asserts, between
2003 through 2012, the entity manufactured and sold electric motors to another
company located within the People’s Republic of China, Defendant and
Cross-Defendant DM (Asia), Ltd., and did not make any sales to any individuals
or entities located in the State of California.
Therefore, Defendant argues the entity did not engage in the “minimum
contacts” required to permit the Court’s exercise of personal jurisdiction.
Air Vent, Inc. opposes Powermax’s Motion on several
grounds.
The Court address the parties’ argument below.
a. General
Personal Jurisdiction
A corporation would be “at home” in a forum state
where the entity is either incorporated or has its principal place of business
in California, or where the corporation’s “affiliations with the [forum state]
are so ‘continuous and systematic’ as to render [it] essentially at home in the
forum state.” (Goodyear Dunlop Tires
Operations, S.A. v. Brown (2011) 564 U.S. 915, 919; see also Daimler AG
v. Bauman (2014) 571 U.S. 117,137-139.)
“Continuous and systematic contacts include, maintaining an office and employees in the
forum, use of forum bank accounts, and the marketing or selling of products in
the forum state. (Shisler v. Sanfer
Sports Cars, Inc. (2006) 146 Cal.App.4th 1254, 1259.)
The analysis of general jurisdiction “calls for an
appraisal of a corporation’s activities in their entirety, nationwide and
worldwide.” (Daimler AG, supra,
571 U.S. at p. 139, fn. 20.) “A
corporation that operates in many places can scarcely be deemed at home in all
of them. Otherwise, ‘at home’ would be
synonymous with ‘doing business’[,] ” which is not the appropriate inquiry when
evaluating whether an entity is “at home” in a particular state. (Ibid.)
Ultimately, following a consideration of the
parties’ arguments and the submitted evidence, the Court concludes the exercise
of general personal jurisdiction over Powermax is improper because Powermax
cannot be said to be “at home” within the State of California. First and foremost, Powermax in neither
incorporated within nor has its principal place of business within the State of
California. Rather, Powermax is
organized and existing under the laws of the People’s Republic of China, and its
principal place of business is located at “at 1-2 Region, South of Qibao
Industries, Xinhui District, Jiangmen City, Guangdong, China 529100”. (Tsui Decl., ¶ 5.) Second, Powermax affiliations with the State
of California are not so “continuous and systematic” so as to render Powermax
“at home” in the State of California. Powermax
does not maintain offices or employees in the State of California, is not
licensed or registered to do business in the State of California, does not own
or lease property in the State of California, does not possess bank accounts,
stocks, securities, or other assets in the State of California, and has not
conducted any continuous business activities within the State of
California. (Tsui Decl., ¶¶ 19,
23, 26, 27, 35.) Accordingly, the Court
concludes the exercise of general personal jurisdiction over Powermax is
improper.
b. Specific Personal Jurisdiction
As noted previously, specific personal jurisdiction
is determined under a three-part test: “ ‘(1) [t]he nonresident defendant must
do some act or consummate some transaction with the forum or perform some act
by which he purposefully avails himself of the privilege of conducting
activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or results from the defendant's
forum-related activities; and (3) exercise of jurisdiction must be reasonable.’
” (Jewish Defense Organization, Inc.,
supra, 72 Cal.App.4th at p. 1054, citing Panavision International,
L.P. v. Toeppen (9th Cir. 1998) 141 F.3d 1316, 1320 [applying California
law].)
Ultimately, the Court concludes the exercise of
specific personal jurisdiction over Powermax would be improper pursuant to the
three-part test articulated above.
First, the Court concludes Air Vent, Inc. failed to
produce persuasive evidence demonstrating that Powermax “purposefully
avail[ed]” itself of the privileges of conducting business in the State of
California, thereby invoking the benefits and protections of the State of
California’s laws. Presently, Air Vent,
Inc. contends Powermax is subject to specific personal jurisdiction accordance
to the “stream of commerce plus” theory of personal jurisdiction. (Opp., at p. 7:23-24.)
The “stream of commerce plus” theory of personal
jurisdiction was articulated by the United State Supreme Court in Asahi
Metal Industry Co., LTD v. Superior Court of California, Solano County
(1987) 480 U.S. 102 (Asahi). The
United States Supreme Court held, an out-of-state defendant’s placement of a
product within the stream of commerce is insufficient to establish the “minimum
contacts” required to establish personal jurisdiction. (Asahi, supra, 480 U.S. at p.
112.) Rather, the defendant must partake in additional conduct, apart
from merely placing a product within the stream of commerce (stream of commerce
plus “additional conduct” theory) in order to establish the requisite “minimum
contacts”. (Ibid.) Specifically, the United States Supreme Court
explained as follows:
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.] The placement of a product into the stream of commerce,
without more, is not an act of the defendant purposefully directed toward the
forum State. Additional conduct of the defendant may indicate an intent or
purpose to serve the market in the forum State, for example, designing the
product for the market in the forum State, advertising in the forum State,
establishing channels for providing regular advice to customers in the forum
State, or marketing the product through a distributor who has agreed to serve
as the sales agent in the forum State. But a defendant's awareness that
the stream of commerce may or will sweep the product into the forum State does
not convert the mere act of placing the product into the stream into an act
purposefully directed toward the forum State.
(Ibid. [italics in original].) The United States Supreme Court in Asahi
made clear that a defendant’s transmission of goods within the forum state
would only permit the exercise of jurisdiction where the defendant engaged in
“additional conduct” directed at the forum State and can be said to have
targeted the forum State specifically. (Ibid.;
J. McIntyre Machinery, Ltd. v. Nicastro (2011) 564 U.S. 873, 882.) “As a general rule, it is not enough that the
defendant might have predicted that its goods will reach the forum State.” (J. McIntyre, supra, 546 U.S.
at p. 882.)
Furthermore, the Court specified the analysis
concerning “purposeful availment” centers upon the defendant’s “purposeful
contacts” with the specific forum state presently attempting to exercise
personal jurisdiction, as opposed to the United States as a whole. (J. McIntyre, supra, 546 U.S.
at p. 886 [“Here, the question concerns the authority of a New Jersey state
court to exercise jurisdiction, so it is petitioner’s purposeful contacts with
New Jersey, not with the United States, that alone are relevant.”].)
The Court does not conclude that Powermax purposefully
availed itself of the State of California to satisfy the “stream of commerce plus”
test of personal jurisdiction. Air Vent,
Inc. argues that Powermax sold “millions” of electric motors to Air Vent, Inc.,
with the knowledge that the motors would be used to build and sell ventilation
fans in California. (Holland Decl., ¶¶
3-4.) Air Vent, Inc. further contends
that Powermax sold approximately 91,354 electric motors “directly” to Air Vent,
Inc., and sold approximately two million more electric motors to Air Vent, Inc.
through a purported “agent/joint venture partner,” co-Defendant and
co-Cross-Defendant DM (Asia), Ltd (hereinafter, “DM (Asia)”). (Id., ¶¶ 8.) However, a review of the numerous “invoices”
submitted by Air Vent, Inc., do not support this conclusion. The pages of invoices attached to the
Declaration of Brad Holland (Director of Engineering & Product Development
for Air Vent, Inc.) demonstrate that Powermax did not made any direct sales of electric
motor to Air Vent, Inc. for use and sale in the State of California. Rather, the invoices demonstrate that Powermax
sold the entirety of the electric motors to DM (Asia), a company operated in
the People’s Republic of China, as opposed to any other company conducting
business within the State of California, or the greater United States. (Holland Decl., Ex. 1 [invoices specify sales
between “Air Vent, Inc.” and “DM (Asia) Limited” only, and Powermax is not
mentioned in any invoices], Ex. 3 [invoices specify sales between Powermax and
DM (Asia), and do not mention any sales between Powermax and Air Vent,
Inc.].) Therefore, the “invoices”
submitted fail to demonstrate any purposeful sales made by Powermax to Air
Vent, Inc.
Additionally, while Air Vent, Inc. would argues that
Powermax purposefully targeted the United States market through sales made by
its purported “agent/joint venture partner” DM (Asia) to Air Vent, Inc., Air Vent,
Inc. did not appear to submit any persuasive evidence demonstrating the
existence of any agent/joint venture partner relationship between the two
entities. The invoices submitted by Air
Vent, Inc. merely demonstrate that Powermax manufactured and sold electric
motors within the People’s Republic of China to DM (Asia), an unaffiliated
entity, who thereafter sold the electric motors to Air Vent, Inc. The submitted invoices are insufficient to demonstrate
Powermax purposefully availed itself of the State of California.
Further, Air Vent, Inc. contends Specially
Appearing Cross-Defendant Powermax specifically targeted the State of
California as Specially Appearing Cross-Defendant Powermax directly ships the
subject electric motors to ports within the State for sale. In support of this representation, Defendant
and Cross-Complainant Air Vent, Inc. refers this Court to the aforementioned
“invoices” as well as the results from a website entitled, “Import Genius”. The Court finds this evidence unpersuasive. Initially, with respect to the referenced invoices,
they expressly state that following Powermax’s sale of the electric motors to
DM (Asia), Powermax would ship the purchased electric motors to Dallas, Texas;
not anywhere within the State of California.
(Holland Decl., Ex. 1 [“Port of Discharge: Dallas, TX”], Ex. 3 [“CIF:
Dallas”].) Additionally, Air Vent, Inc.
explains it attempted to subpoena United States Customs to ascertain whether Powermax’s
shipped items to California. (Jakofsky
Decl., ¶ 7.) After Air Vent, Inc. received an objection to the subpoena, it
opted to visit a website known as Import Genius, which displayed “Powermax’s
exports to the ports of Los Angeles, Long Beach, and Oakland, California.” (Ibid.) Air Vent, Inc.’s use of this website is
problematic as Air Vent, Inc. fails to provide any evidence demonstrating the
website’s trustworthiness or the foundation for the information alleged to be
contained therein.
Air Vent, Inc. argues, Powermax purposefully
targeted the State of California by selling the electric motors online through
Amazon and Walmart. (Jakofsky Decl., ¶
3, Ex. 3.) However, as noted above, to
demonstrate purposeful availment, Air Vent, Inc. must demonstrate Powermax
targeted the State of California, specifically.
(J. McIntyre, supra, 564 U.S. at p. 886 [“Here, the
question concerns the authority of a New Jersey state court to exercise
jurisdiction, so it is petitioner’s purposeful contacts with New Jersey, not
with the United States, that alone are relevant.”].) Evidence demonstrating Powermax’s sale of
electric motors through websites which are available across the United States
are insufficient to establish purposeful availment of the State of California.
The Court reaches the same conclusing when addressing
Air Vent, Inc.’s argument concerning Powermax’s contracts with United States
entities such as, Lowes Home Centers, LLC and Home Depot USA, Inc. Air Vent, Inc. argues that Powermax entered a
“Master Standard Buying Agreement” and a “Supplier Buying Agreement” with Lowes
Home Centers, LLC and Home Depot USA, Inc., respectively. (Jakofsky Decl., ¶¶ 4-5, Ex. 9-10.) The aforementioned “Master Standard Buying
Agreement” and “Supplier Buying Agreement” provide Powermax’s “products” will
be sold in Lowes Home Centers, LLC and Home Depot USA, Inc. stores across the
United States. (Ibid.) However, once again, evidence demonstrating
Powermax’s sale of products across the United States is insufficient to
demonstrate purposeful availment of California’s markets specifically. (J.
McIntyre, supra, 564 U.S. at p. 886; Carretti v. Italpast
(2002) 101 Cal.App.4th 1236, 1245 [sales within the state by an independent nonexclusive
sales representative is insufficient to establish jurisdiction]).
Lastly, Air Vent, Inc. contends Powermax’s products
have indeed appear in the State of California, and prompt this Court to
reference the Declaration of Cameron Jackson, a Certified Personal
Investigator, which provides averments and photographs demonstrating “Hampton
Bay,” “Mainstay,” and “Harbor Breeze” ceiling fans presently being sold at The
Home Depot, Walmart, and Lowes, respectively.
(Jackson Decl., ¶¶ 2-4, Ex. 14-16.)
However, the presence in California of certain products manufactured by Powermax,
without more, is insufficient to establish specific personal jurisdiction over
Specially Appearing Cross-Defendant. As
noted by the United States Supreme Court in Asahi, there must be additional
conduct demonstrating Powermax’s intent that the product serve the California
market. Additionally, as is relevant to
the second prong of the three-part inquiry applicable to specific personal
jurisdiction, Air Vent, Inc. produced insufficient evidence demonstrating that
Powermax’s purported sale of “Hampton Bay,” “Mainstay,” and “Harbor Breeze”
ceiling fans are in anyway related to Plaintiff’s causes of action. There is no evidence the ceiling fan which
purportedly caused fire damage to Plaintiff’s insured’s home was one of the
fans named.
Ultimately, the Court concludes the exercise of
specific personal jurisdiction over Powermax would be improper as Air Vent,
Inc. has failed to demonstrate Powermax purposefully availed itself of the
privileges of conducting business in the State of California, thereby invoking
the benefits and protections of the State of California’s laws. Air Vent, Inc. failed to show that Powermax performed
any additional conduct, other than placing the subject motor within the stream
of commerce. Air Vent, Inc. has not
shown that Powermax had an intent or purpose to serve the State of California,
advertised specifically within the State of California, or established channels
for providing regular advice to customers in the State of California. Accordingly,
the Court concludes the exercise of specific personal jurisdiction over
Specially Appearing Cross-Defendant Powermax would be improper.
c. Request for Continuance
In the event the Court is inclined to find the
exercise of personal jurisdiction over Powermax is improper (as the Court has
found above), Air Vent, Inc. requests that this Court permit a continuance of
the hearing date to allow the completion of additional discovery—specifically,
the deposition of Stephy Tsiu, which has not been completed due to COVID-19. (Jakofsky Decl., ¶ 13.)
A
cross-complainant attempting to assert jurisdiction over a cross-defendant “is
entitled to an opportunity to conduct discovery of the jurisdictional facts
necessary to sustain its burden of proof.
[Citation.] To prevail on a
motion for a continuance for jurisdictional discovery, the plaintiff should
demonstrate that discovery is likely to lead to the production of evidence of
facts establishing jurisdiction.” (In
re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100,
127.) “A ruling on a motion to continue
in order to allow additional time to discover jurisdictional facts lies in the
trial court's discretion.” (Ibid.)
Presently, the Court declines the continuanceto
conduct additional jurisdictional discovery.
The Court notes the hearing on this Motion was continued four times by
stipulation of the parties from April 29, 2022 to July 8, 2022, July 8, 2022 to
August 12, 2022, August 12, 2022 to September 12, 2022, September 12, 2022 to
October 28, 2022. Additionally, the
final Order of the Court indicates “no further continuances” will be
permitted. (Order Re Stipulation to
Continue Hearing on Cross-Defendant Powermax’s Motion to Dismiss, filed
September 13, 2022.) The Court finds Air
Vent, Inc. has had more than enough time to complete jurisdictional discovery. Furthermore Air Vent, Inc.’s completion of
additional discovery will not prevent dismissal of the subject Cross-Complaint
as to Specially Appearing Cross-Defendant Powermax. As noted above, the Court has granted the
requested dismissal pursuant to Air Vent, Inc.’s failure to serve by the
“mandatory” three-year deadline articulated within Code of Civil Procedure
section 583.250, subdivision (a)(2).
(Code Civ. Proc., § 583.250, subd. (a)(2).)
Accordingly, Air Vent, Inc.’s request for a
continuance is denied.
III. CONCLUSION
Powermax
Electric Co., Ltd. Guangdong’s Motion to Dismiss Defendant and
Cross-Complainant Air Vent, Inc.’s Cross-Complaint is GRANTED.
---
RULING:
In the event the parties submit on this tentative
ruling, or a party requests a signed order or the court in its discretion
elects to sign a formal order, the following form will be either electronically
signed or signed in hard copy and entered into the court’s records.
ORDER
Specially
Appearing Cross-Defendant Powermax Electric Co., Ltd. Guangdong’s Motion came on regularly for hearing on October
28, 2022, with appearances/submissions as noted in the minute order for said
hearing, and the court, being fully advised in the premises, did then and there
rule as follows:
THE MOTION IS GRANTED.
IT IS SO ORDERED.
DATE: October
28, 2022
_______________________________
F.M. TAVELMAN, Judge
Superior
Court of California
County of Los Angeles