Judge: Gail Killefer, Case: 24STCV14340, Date: 2024-12-10 Tentative Ruling
Case Number: 24STCV14340 Hearing Date: December 10, 2024 Dept: 37
HEARING DATE: Tuesday, December 10, 2024
CASE NUMBER: 24STCV14340
CASE NAME: Dana Hughes v. Advocare International, LLC
MOVING PARTY: Defendant Advocare
International LLC
OPPOSING PARTY: Plaintiff Dana Hughes
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Motion to Quash with
Demurrer
OPPOSITION: 19 September 2024
REPLY: 16
October 2024
TENTATIVE: The
hearing on the motion to quash and demurrer is continued to March 14, 2025, at
8:30 a.m. Plaintiff is given 90
days leave to amend the Complaint and add more facts regarding Defendant’s
contacts with California after conducting limited discovery on personal
jurisdiction issues. The Case Management Conference is also continued to March
14, 2025, at 8:30 a.m.
Background
On June 6, 2024, Dana
Hughes (“Plaintiff”) filed a Complaint against Advocare International LLC
(“Defendant”) and Does 1 to 25. The Complaint alleges a single cause of action
violation of the California Invasion of Privacy Act’s (“CIPA”) Trap and Trace Law
(Pen. Code, § 638.51).
Defendant now moves to
quash the service of summons due to lack of personal jurisdiction and also demurrers
to the Complaint. Plaintiff opposes both Motions. Per the Parties’ stipulation,
the matter was previously continued but is now before the court.
I. Legal Standard
CCP § 418.10(e) allows a party to
simultaneously file a motion to quash and demurrer without making an appearance,
“unless the court denies the motion made under this section.”
¿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. Request for Judicial Notice
Plaintiff requests judicial
notice of the following:
Plaintiff’s request for judicial
notice is granted.
On reply, Defendant’s request
judicial notice of the following:
Defendant’s request for judicial
notice is granted.
III. Discussion
According to the Complaint, Defendant is a health and
wellness company that offers products for weight loss, muscle gain, energy
boost, and health improvement. (Compl., ¶ 11.) Defendant operates a website:
https://www.advocare.com (the “Website”) that was created by TikTok to identify
website visitors the (“TikTok Software”). (Id., ¶ 11.) The TikTok
software collects the visitor’s data from the Website, including URL address,
phone numbers, and email address. (Id., ¶¶ 12-17.)
The Complaint alleges the TikTok Software is a “trap and
trace device” which is “a device or process that captures the incoming
electronic or other impulses that identify the originating number or other
dialing, routing, addressing, or signaling information reasonably likely to
identify the source of a wire or electronic communication, but not the contents
of a communication.” (Pen. Code, § 638.50(c).) In this manner, Defendant
violated CIPA by using a trap and trace device (the TikTok Software) on its website.
Defendant asserts that the court lacks personal
jurisdiction over Defendant because it is a Delaware limited liability company
with its principal place of business in Texas. (Mot., at p. 2:6-8.) Defendant
asserts that Plaintiff’s voluntary visit to AdvoCare’s website, without any
allegation she actually purchased a product from Defendant or that said product
caused her injury, is insufficient to establish minimum contacts in
California.
Plaintiff does not dispute Defendant’s contention that that
the court does not have general jurisdiction over Defendant. Therefore, the
court’s analysis is focused on whether Plaintiff has met its initial burden of
showing that the Defendant has sufficient minimum contacts with California.
A. Plaintiff
Fails to Show Defendant Had Minimum Contacts with California
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’s Complaint is unverified and there are not
affidavits or other evidence to support the allegations in the Complaint. (CCP,
§ 446(a).) Accordingly, the court cannot take Plaintiff’s allegations as true
for purposes of establishing the necessary facts for personal jurisdiction over
Defendant. (Ziller, supra, 209 Cal.App.3d at p. 1233.)
Unlike the plaintiff in Rodriguez v. Aquatic Sales
Solutions LLC (C.D. Cal., May 29, 2024, No. 2:23-CV-05198-CAS-EX) 2024 WL
2804097, at *4, Plaintiff offers no evidence that a certain percentage of
Defendants total sales were made to California residents.
Moreover, while the Complaint alleges that Defendant
operated a TikTok software is a trap and trace device, there are no allegations
that Defendant’s Website operates a chat feature to facilitate the sale of its
products to consumers, including those in California. This is in contrast to factual
allegations in Rodriguez v. Aquatic Sales Solutions LLC (C.D. Cal., May
29, 2024) where the District Court found:
In
contrast, here, plaintiff's privacy claims are related to defendant's
sales to California. Defendant presumably offered the chat feature on its
Website to facilitate consumer transactions by, for example, allowing potential
consumers to ask questions about products or allowing consumers to seek assistance
regarding products they purchased in the past. In other words, defendant
operated the chat feature to drive sales to consumers, including consumers in
California. For the purposes of personal jurisdiction, sales resulting from
defendant's efforts to drive sales to California consumers are sufficiently
related to claims arising from those efforts
(Rodriguez v. Aquatic Sales Solutions LLC (C.D.
Cal., May 29, 2024, No. 2:23-CV-05198-CAS-EX) 2024 WL 2804097, at *5.)
For specific jurisdiction, “courts consider the
relationship among the defendant, the forum and the litigation.” (Snowney
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.” (Id.) “For
claims sounding in tort, courts generally apply a ‘ “purposeful direction” test
and look to evidence that the defendant has directed his actions at the forum
state, even if those actions took place elsewhere.’ ”[Citation.] (Casey v.
Hill (2022) 79 Cal.App.5th 937, 965.) “This test, also known as the ‘Calder
effects test’ derived from Calder v. Jones (1984) 465 U.S. 783 [79
L.Ed.2d 804, 104 S.Ct. 1482] (Calder), ‘requires intentional conduct expressly
aimed at or targeting the forum state in addition to the defendant's
knowledge that his intentional conduct would cause harm in the forum.’
[Citation.]” (Ibid.)
As Plaintiff does not dispute that the CIPA claim sounds in
tort, Plaintiff bears the burden of stating facts to show that in operating the
Website, Defendant expressly aimed or targeted residents in California and had
knowledge that such conduct would cause harm to consumers in California. The
allegations in the Complaint are limited to alleging that Defendant operated a
skip and trace device and is devoid of facts stating that Defendant expressly
aimed and targeted consumers in California.
In Jacqueline B. v. Rawls Law Group, P.C. (2021) 68
Cal.App.5th 243, the appellate court found that a law firm’s operation of
website without more was insufficient to show that Defendants purposefully directed
its activity toward California residents. “At most, the law firm operated a
website that could be accessed by California residents, but the website did not
target California residents specifically and it was plaintiff who first
contacted defendants.” (Id., at p. 254 (Jacqueline B.).)
The Complaint alleges that Plaintiff was the one that
accessed Defendant’s website and there are no facts to show that Defendant’s
website specifically targeted California residents. (See Compl., ¶ 2.) The law
firm website in Jacqueline B. “did not target California residents (and
hence that any effect on those residents was not intended)” and despite
advertising “a ‘nationwide’ practice and set forth examples of prior
settlements from persons who had received substandard treatment in California
VA facilities, the website included examples from all around the country and
the website itself was accessible from anywhere.” (Jacqueline B., supra,
68 Cal.App.5th at p. 255.) Moreover, Plaintiff in this action fails to show
that the Website “occupied a ‘middle ground’ because it ostensibly allowed
plaintiff to exchange information with the firm's website.” (Id.) In Jacqueline
B. “the fact that plaintiff herself had to reach out to the firm
directly confirm[ed] the minimal interactivity of the website.” (Id.)
The record before the court shows at most that Defendant
operated a website that allegedly had utilized a trap and trace device, but
this fact alone is insufficient to show purposeful availment. There are no
facts or evidence to show that Defendant’s website was interactive and engaged
in repeated commercial activities with California residents. The court grants
Plaintiff’s request for 90 days leave to amend the Complaint and add more facts
regarding Defendant’s contacts with California after conducing limited
discovery on personal jurisdiction issues.
Per Plaintiff’s request, the hearing on the motion to quash
is continued. The hearing on the demurrer is also continued as the court cannot
rule on the motion until the court rules on the motion to quash. (See CCP, §
418.10; Air Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th
414.)
Lastly,
on October 25, 2024, both Parties submitted supplemental authority, but none of
the cases cited are relevant as to whether Defendant’s mere operation of a
website that violates the CIPA is sufficient to establish minimum contacts with
California.
Conclusion
The
hearing on the motion to quash and demurrer is continued to March 14, 2025, at
8:30 a.m.
Plaintiff
is given 90 days leave to amend the Complaint and add more facts
regarding
Defendant’s contacts with
California after conducing limited discovery on personal jurisdiction
issues. The Case Management Conference
is also continued to March 14, 2025, at 8:30 a.m.