Judge: Gregory Keosian, Case: 21STCP03057, Date: 2023-03-28 Tentative Ruling


Case Number: 21STCP03057    Hearing Date: March 28, 2023    Dept: 61

Defendant Sino American Reunion’s Motion to Set Aside Default and Vacate Default Judgment is GRANTED.

 

Defendant Sino American Reunion’s Motion to Quash Service of Summons is GRANTED.

 

Plaintiff J.D.F.’s Motion to Compel Compliance with Subpoena is DENIED.

 

I.                   MOTION TO VACATE DEFAULT

 

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).)

 

Defendant Sino American Reunion (Defendant) moves to vacate the default and default judgment entered against it on August 22, 2022, on the grounds that no service has been made upon it, and further that it lacks minimum contacts with the state of California, such that the court’s exercise of jurisdiction over it here deprives it of due process. (Motion at pp. 3–8.) Defendant also argues that the default may be vacated under Code of Civil Procedure § 473, subd. (b), for excusable neglect. (Motion at pp. 8–10.)

 

Defendant is an online society not organized or registered under the laws of California, and is therefore an unincorporated association for the purposes of service. (Crawford Decl. ¶¶ 3–4; Corp. Code § 18035, subd. (a) [defining “unincorporated association” to mean “an unincorporated group of two or more persons joined by mutual consent for a common lawful purpose, whether organized for profit or not”].)

 

Service may be made upon such an association as follows:

 

(a) If the association is a general or limited partnership, to the person designated as agent for service of process in a statement filed with the Secretary of State or to a general partner or the general manager of the partnership;

 

(b) If the association is not a general or limited partnership, to the person designated as agent for service of process in a statement filed with the Secretary of State or to the president or other head of the association, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the association to receive service of process;

 

(Code Civ. Proc. § 416.40, subd. (a), (b).) That same section also provides for service as authorized by Corporations Code § 18220, which states:

If designation of an agent for the purpose of service of process has not been made as provided in Section 18200, or if the agent designated cannot with reasonable diligence be found at the address specified in the index referred to in Section 18205 for delivery by hand of the process, and it is shown by affidavit to the satisfaction of a court or judge that process against an unincorporated association cannot be served with reasonable diligence upon the designated agent by hand or the unincorporated association in the manner provided for in Section 415.10 or 415.30 of the Code of Civil Procedure or subdivision (a) of Section 415.20 of the Code of Civil Procedure, the court or judge may make an order that service be made upon the unincorporated association by delivery of a copy of the process to one or more of the association's members designated in the order and by mailing a copy of the process to the association at its last known address. Service in this manner constitutes personal service upon the unincorporated association.

(Corp. Code § 18220.)

The proof of service filed on June 27, 2022, states that Defendant was served by personal service upon Shaohai Guo in Wilmette, Illinois. Defendant offers the declaration of Cyril Crawford, who identifies himself as Defendant’s chairman. (Crawford Decl. ¶ 2.) He states that Defendant has no agent for service of process, and that Shaohai Guo has never been a member, agent, or officer of Defendant. (Crawford Decl. ¶¶ 4–6.) Crawford states that Guo is a historian of Chinese dynastic history whose work is respected by the association. (Crawford Decl. ¶ 5.) Defendant also points to Guo’s declaration in support of his own prior motion to quash service of summons, in which he stated that he had never served as an agent or officer of Defendant. (Motion Exh. 2; Guo Decl. ¶¶ 9–10.)

Defendants thus present evidence that service was not made upon an offer or agent of Defendant as required by Code of Civil Procedure § 416.40. No order has been entered allowing service under Corporations Code § 18220. And even when service is authorized upon “one or more of the association’s members” under that statute, due process requires that any such service be upon “a person of sufficient character and rank to make it reasonably certain that the unincorporated association will be apprised of the case.” (People ex rel. Reisig v. Broderick Boys (2007) 149 Cal.App.4th 1506, 1523, internal quotation marks omitted.) Defendant’s evidence thus casts substantial doubt upon Guo’s status as an agent or officer of Defendant.

Plaintiff in opposition presents Defendant’s web page, which lists Shaohai Guo among other individuals as one of Defendant’s “steering committee.” (Opposition Exh. C.)

Plaintiff’s evidence is not persuasive for the proposition that service upon Guo amounted to service upon agent or officer of Defendant. Plaintiff’s case against Defendant depends upon the assertion that his own name and professional credentials were listed on Defendant’s site without his consent, for the purpose of lending support to Defendant’s mission. (JDF Decl. ¶ 22.) Guo’s name is similarly listed on the website, and both he and Crawford deny that he had any office or authority within the association. Thus service was not properly made upon Defendant, and the default judgment is properly set aside as void.

Even if service were valid under the above authority, this court would still lack jurisdiction over Defendant by virtue of the association’s lack of minimum contacts with the state of California.

A court may exercise jurisdiction on any basis not inconsistent with the Constitution of California or of the United States. (Code Civ. Proc., § 410.10.) The exercise of personal jurisdiction is constitutionally permissible only “if the defendant has sufficient ‘minimum contacts’ with the forum state so that the exercise of jurisdiction ‘does not offend “traditional notions of fair play and substantial justice.” [Citations.]’ ” (HealthMarkets, Inc. v. Superior Court (“HealthMarkets, Inc.”) (2009) 171 Cal.App.4th 1160, 1166 [citing International Shoe Co. v. Washington (1945) 326 U.S. 310, 316].) A defendant’s conduct with the forum state must be such that the defendant has “fair warning” that its activities might subject it to personal jurisdiction. (HealthMarkets, Inc., supra, 171 Cal.App.4th at p. 1166–1167; Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472.)

“Minimum contacts exist where the defendant's conduct in the forum state is such that he should reasonably anticipate being subject to suit there, and it is reasonable and fair to force him to do so. [Citations.] In contrast, contacts that are random, fortuitous, or attenuated do not rise to the minimum level, and general jurisdiction cannot be exercised under these circumstances.” (F. Hoffman-La Roche, Inc. v. Superior Court (“F. Hoffman-La Roche”) (2005) 130 Cal.App.4th 782, 795.)

A defendant that has substantial, continuous, and systematic contacts with the forum state is subject to general jurisdiction in the state, meaning jurisdiction on any cause of action. Absent such extensive contacts, a defendant may be subject to specific jurisdiction, meaning jurisdiction in an action arising out of or related to the defendant's contacts with the forum state. Specific jurisdiction depends on the quality and nature of the defendant's forum contacts in relation to the particular cause of action alleged.

 

(HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1167.)

 

A nonresident defendant may be subject to specific jurisdiction if three requirements are met: (1) the defendant has purposefully availed itself of forum benefits with respect to the matter in controversy; (2) the controversy is related to or arises out of the defendant's contacts with the forum; and (3) the exercise of jurisdiction would comport with fair play and substantial justice.

 

(Burdick v. Superior Court (2015) 233 Cal.App.4th 8, 18.)

 

The evidence that supports the existence of specific jurisdiction over Defendant is largely the same as that before the court when it granted Crawford’s motion to quash service of summons. There, Plaintiff relied on Crawford’s threatening text messages to himself, the posting of Plaintiff’s information on Defendant’s website, which Crawford controls, and Defendant’s mission of reaching Chinese-American and Chinese-Canadian readers, which Plaintiff contends would inevitably entail a broad readership in the forum state of California. The court relied on the following case law:

 

The case Zehia v. Superior Court (2020) 45 Cal.App.5th 543 is helpful for the present analysis. There, the court found sufficient minimum contacts to exist for a defendant who had sent direct messages via social media to a California resident, which included false and defamatory statements about the plaintiff, also a California resident, with the intent to disrupt a relationship between the two residents. (Id. at p. 556.)

 

The court discussed prior cases involving minimum contacts and jurisdictional issues. There was Calder v. Jones (1984) 465 U.S. 783, in which the court held that the National Enquirer, a Florida corporation, could be sued in California by a resident plaintiff who had shown that the paper used California sources for the article, had its largest circulation in California, and knew that the plaintiff would suffer the greatest injury in California. (Zehia, supra, 45 Cal.App.5th at p. 553.) The Zehia court also cited Pavlovich v. Superior Court (2002) 29 Cal.4th 262, in which the court found that it did not have jurisdiction over a Defendant who had posted sensitive and proprietary information on a public internet web site, because the site was not targeted to California and there was no evidence that any California resident had accessed the site. (Zehia, supra, 45 Cal.App.5th at p. 554.) The Zehia court also discussed Burdick v. Superior Court (2015) 233 Cal.App.4th 8, in which the court held that the public posting of a defamatory statement on social media did not establish a connection with California, because there was no evidence that the page had a California audience or was otherwise targeted to California. (Zehia, supra, 45 Cal.App.5th at p. 555–556.)

 

(See 4/26/22 Ruling.) The court concluded under this authority that the evidence presented of Crawford’s communications and Defendant’s web postings was insufficient to establish purposeful availment of the forum state, as Defendant’s web-postings were not specifically targeted to California residents, as well as Plaintiff’s thin showing that he was himself a California resident for the purposes of the communications directed toward him, or that Defendant had any reason to believe that he resided in California. The evidence here is the same in all material respects, with the exception that certain damaging admissions contained in the previous motion papers  — that Plaintiff has lived abroad since 2017, that he views himself as a California resident by virtue of his parents’ keeping a residence in the state since 2018, and that he “would” reside at the same address “if/when he returns to the United States” (4/13/22 Guo Decl. ¶¶ 7–8; 4/13/22 JDF Decl. ¶ 27) — have been omitted. Once more, the evidence that Defendant had any knowledge that Plaintiff was a California resident is limited to the demand letters sent by Plaintiff’s counsel, which referenced California laws. (JDF Decl. ¶¶ 25–26.) None of these facts indicate that Defendant purposefully targeted the forum state.

 

Accordingly, this court lacks jurisdiction over Defendant, as Defendant has no minimum contacts with the state of California. The default and default judgment entered against Defendant are therefore void.

 

The motion to vacate default judgment and default is therefore GRANTED.

 

II.                MOTION TO QUASH SERVICE 

A defendant may serve and file a motion to quash service of summons on the grounds of a lack of jurisdiction over him or her. (Code Civ. Proc., § 418.10 subd. (a)(1).) A plaintiff opposing a motion to quash service for lack of personal jurisdiction “has the initial burden to demonstrate facts establishing a basis for personal jurisdiction.” (HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1167.) If satisfied, the burden then shifts to defendant to show that exercise of jurisdiction would be unreasonable. (Id.)

Mere notice of litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons. (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) While courts are not required to accept self-serving evidence — such as declarations that one was not served — submitted to support a motion to quash, facial defects of the proof of service will rebut its presumption of proper service. (American Exp. Centurion Bank, supra, 199 Cal.App.4th at p. 390.) The burden is on a plaintiff to prove facts showing that service was effective. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

The arguments that Defendant submits to quash service of summons upon it are identical to the arguments supporting its motion to vacate the default: lack of proper service and the absence of minimum contacts with California. (Motion at pp. 3–8.) As these arguments warrant the setting aside of the judgment and default, so too do they require the quashing of service of summons upon Defendant, as this court lacks personal jurisdiction over the association.

The motion to quash is therefore GRANTED.

Plaintiff has filed a motion seeking discovery of the registrar of Defendant’s website, for the purposes of enforcing the default judgment against it. As the judgment against Defendant has been vacated, and as this court lacks personal jurisdiction over Defendant, Plaintiff’s motion is DENIED.