Judge: Gail Killefer, Case: 23STCV22654, Date: 2024-08-06 Tentative Ruling
Case Number: 23STCV22654 Hearing Date: August 6, 2024 Dept: 37
HEARING DATE: Tuesday, August 6, 2024
CASE NUMBER: 23STCV22654
CASE NAME: Antonio Lujak v. Travis Bott, et al.
MOVING PARTY: Defendant Travis Bott
OPPOSING PARTY: Plaintiff Antonio Lujak
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Motion to Quash Service of
Summons
OPPOSITION: 16 July 2024
REPLY: 29
July 2024
TENTATIVE: Defendant
Bott’s motion to quash is granted. Plaintiff’s request for sanctions is denied.
Defendant to give notice.
Background
On
September 19, 2023, Antonio Lujack (“Plaintiff”) filed a Complaint against
Travis Bott (“Bott”); Traders Domain Fx Ltd. (“Traders”); Digi Ware Technology
Ptd LTD (“Digi Ware”); and Does 1 to 100.
The Complaint alleges twelve
causes of action for:
1)
Breach of Fiduciary Duties;
2)
Negligence;
3)
Rescission of Securities Transactions (Material
Misrepresentations);
4)
Joint and Several Liability Management;
5)
Recession and Restitution (Violation of
Qualification Requirements);
6)
Joint and Several Liability of Offering
Principals;
7)
Fraud;
8)
Conversion;
9)
Declaration of Constructive Trust;
10) Negligent
Misrepresentation;
11) Conspiracy;
and
12) Accounting.
On July 10,
2024, Defendant Travis Bott (“Bott”) filed a Motion to Quash the Plaintiff’s
Summons and Complaint for lack of personal jurisdiction. Plaintiff opposes the
Motion. The matter is now before the court.
I. Legal Standard
CCP § 418.10(a) states: “A
defendant, on or before the last day of his or her time to plead or within any
further time that the court may for good cause allow, may serve or file a
motion…[t]o quash service of summon on the ground of lack of jurisdiction of
the court over him or her.”¿¿¿¿¿
¿
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.¿(State
of Oregon v. Superior Court (1994) 24 Cal.App.4th 1550, 1557.)¿If the
plaintiff meets his or her burden, the burden shifts to the defendant to
demonstrate that the exercise of jurisdiction would be unreasonable. (Buchanan
v. Soto (2015) 241 Cal.App.4th 1353, 1362. [“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.”].) This burden
must be met by competent evidence in affidavits and authenticated documentary
evidence. (Jewish Defense Org. v. Superior Court¿(1999) 72 Cal.App.4th
1045, 1055.)
II. Evidentiary Objections
Defendant Bott submitted
evidentiary objections to the Declaration of Richard R. Farcus:
Objections Nos. 1 and 4 are
overruled as the Plaintiff may rely on well-pleaded allegations made in the
Compliant.
Objections Nos. 2, 3, 5, 10, 11,
12, 13, 14, and 15 are sustained as they are hearsay and lack foundation.
Objections Nos. 6, 7, 8, 9, and 16
are overruled.
III. Discussion
Defendant Bott moves to quash the
service of summons due to lack of personal jurisdiction. Defendant Bott
submitted a declaration attesting that he has been a resident of the state of
Utah for the last 12 years and does not direct, market, advertise, or employ
any officer, distributor, servant, agent, employee, salesperson, or other representative
within the State of California. (Botts Decl., ¶¶ 4, 7-11.) Bott asserts he does
not maintain any bank accounts in California, pay taxes in California, or own
any real property in California. (Bott, Decl., ¶ 12.) Bott asserts that he
works for a Management Service Business in Utah, and has never been an
employer, owner, or worked for Defendant Traders. (Bott Decl., ¶¶ 5, 6, 14.)
Lastly, Defendant Bott
asserts that he was served at the wrong address because he has not lived in
Alpine, Utah for two and half years as that is the address of his legally
separated wife and she is not authorized to accept service on his behalf. (Bott
Decl., ¶ 15.) Therefore, Defendant Bott asserts that the May 20, 2024, Proof of
Service by substitute service at the address 1651 East Box Elder Circle, Alpine
UT 84004 is improper.
In opposition to a motion to quash based upon lack of
personal jurisdiction, complainants have the initial burden of filing evidence
to show minimum contacts. (See Muckle v. Superior Court (2002) 102
Cal.App.4th 218, 228.) “It is plaintiff's burden to prove facts of jurisdiction
by a preponderance of evidence.” (Cornelison v. Chaney (1976) 16 Cal.3d
143, 155.) “This burden must be met by competent evidence in affidavits and
authenticated documentary evidence. An unverified complaint may not be
considered as an affidavit supplying necessary facts.” (Ziller Electronics
Lab GmbH v. Superior Court¿(1988) 206 Cal.App.3d 1222, 1233.)¿
Plaintiff offers only the declaration of his attorney,
Richard D. Farkas. Farkas presents evidence that Defendant Botts is involved in
another case entitled EM1 Capital LLC vs. Bott, et. al.,
United States District Court case number 2:24-cv-01044-SB-SSC, in which Bott
attests under penalty of perjury under the laws of the United States that he has
been a citizen of Utah since 2016 and that his permanent address is 1651 Box
Elder Circle, Alpine Utah 84004. (Farkas Decl. Ex. A, ¶ 4.) The declaration was
executed on February 13, 2024. (Farkas Decl. Ex. A.) Under the doctrine of
judicial estoppel, the court accepts that service was proper at 1651 Box Elder
Circle. (See The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831,
842.) However, the fact that service is proper is insufficient to show that the
court has personal jurisdiction over Defendant Bott in this action.
For specific jurisdiction, “courts consider the relationship
among the defendant, the forum and the litigation.” (Snowey v. Harrah’s
Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.) A court may exercise
specific jurisdiction over a nonresident defendant only if: “(1) the defendant
has purposefully availed himself or herself of forum benefits; (2) the
controversy is related to or arises out of the defendant’s contacts with the
forum, and (3) the assertion of personal jurisdiction would comport with fair
play and substantial justice.” (Ibid.)¿¿¿¿
Plaintiff’s reliance on a copy of the First Amended Complaint
in EM1 Capital LLC vs. Bott, et. al.,
United States District Court case number 2:24-cv-01044-SB-SSC, and a Third-Party
Complaint in the same action does not establish that the court has personal
jurisdiction over Bott in this action. Plaintiff cites no case law in
which the court may rely on allegations made in the complaint of another action
to assert personal jurisdiction over the defendant in a similar action. “Instead, each party's ‘contacts with the
forum [s]tate must be assessed individually.’ ” (In re Boon Global Limited
(9th Cir. 2019) 923 F.3d 643, 651 citing Calder v. Jones
(1984) 465 U.S. 783, 790.)
Plaintiff submits no evidence Bott has purposefully availed himself
of the benefits of conducting business in California and has minimum contacts
with the State of California such that “the assertion of jurisdiction does not violate
traditional notions of fair play and substantial justice.” (Brue v. Shabaab (2020) 54 Cal.App.5th 578, 589.) Other
than then the conclusory allegations in the Complaint, Plaintiff offers no
evidence that Bott reached out to Plaintiff about a business venture and that
the venture was entered into and/or aimed at Plaintiff as a resident of
California.
The Complaint alleges that it was Plaintiff
who “contacted Defendant Pak” about the investing with Defendant Traders.
(Compl., ¶ 12.) When jurisdiction is at issue, the court accepts well-pleaded
allegations as fact. (Brue, supra, 54 Cal.App.5th at p. 590.) However,
if the allegation is based on information and belief, the plaintiff must allege
what information leads the Plaintiff to believe that the allegations are true.
(Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551,
fn. 5; Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1106.)
The Complaint fails to allege what information led Plaintiff
to believe that Bott is an authorized agent or representative or owner or
operator of Defendant Traders. The Complaint fails to allege specific facts to
show that Defendant Bott reached out to Plaintiff in California to entice him
to invest with Defendant Traders, such that there was purposeful availment. Plaintiff’s
Exhibit D, purporting to show screenshots in Plaintiff’s cell phone showing a
message from Pak/David forwarded from Travis Bott is not authenticated by
Plaintiff’s testimony and fails to explain who the intended recipient, “Goldie
longstocking,” is and their connection to Plaintiff. (Farkas Decl., Ex. D.) Exhibit
D fails to show Bott intended that his message be forwarded to Plaintiff and
that he knew Plaintiff was a resident of California. The other screenshot appears
to show the name “Adam Powell” and fails to explain how the screenshots relate
to Plaintiff or Defendant Bott. Consequently, there is no evidence showing Defendant
Bott is connected with Defendant Traders and that Defendant Bott has sufficient
minimum contacts with California such that the court may exercise personal
jurisdiction.
Therefore, the Motion to quash is granted.
Plaintiff’s request for sanctions is denied.
Conclusion
Defendant
Bott’s motion to quash is granted. Plaintiff’s request for sanctions is denied.
Defendant to give notice.