Judge: H. Jay Ford, III, Case: 23SMCV05467, Date: 2024-04-18 Tentative Ruling

Case Number: 23SMCV05467    Hearing Date: April 18, 2024    Dept: O

Case Name:  Weiss v. Horowitz, et al.

SUBJECT:                 MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PJ

MOVING PARTY:   Specially Appearing Defendant Philip M. Horowitz

RESP. PARTY:         Plaintiff Marvin Weiss

TENTATIVE RULING

Specially Appearing Defendant Philip M. Horowitz’s Motion to Quash Service of Summons for Lack of Personal Jurisdiction is GRANTED. Plaintiff Marvin Weiss does not meet his burden on the purposeful availment prong to show that Defendant expressly aimed or targeted his conduct toward California, with the knowledge that this intentional conduct would cause harm in the forum.

Plaintiff Marvin Weiss’s request for jurisdictional discovery is DENIED.

“California's long-arm statute authorizes California courts to exercise jurisdiction on any basis not inconsistent with the Constitution of the United States or the Constitution of California. A state court's assertion of personal jurisdiction over a nonresident defendant who has not been served with process within the state comports with the requirements of the due process clause of the federal Constitution if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate “ ‘traditional notions of fair play and substantial justice.’ ” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, citing International Shoe Co. v. Washington (1945) 326 U.S. 310, 316; see Code Civ. Proc., § 410.10; see also Burnham v. Superior Court (1990) 495 U.S. 604, 618–619.) “Personal jurisdiction may be either general or specific.” (Vons Companies, Inc., supra, 14 Cal.4th at p. 445.)

“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.” Vons Companies, Inc., supra, 14 Cal.4th at p. 445.) “Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (Ibid.)

Horowitz has established he is a resident of Naples, FL, who is licensed to practice law in DC and Virginia, ha Horowitz is a resident of Naples, FL, who is licensed to practice law in DC and Virginia, has never been licensed to practice law in California, nor has he resided in California, nor been assigned to the Veneble Los Angeles, CA office. (Horowitz Decl., ¶¶ 5–8.) Horowitz further shows he was not involved in either lawsuit described in the Complaint, specifically United States of America v. California Stem Cell Treatment Center, Inc., et al., Case No. 5:18-cv-01005- JGB-KK) (the “FDA Lawsuit”), and Trujillo v. US Stemology, LLC, et al., Case No. 22-2-00729- 0 SEA) (the “Washington Lawsuit”). (Horowitz Decl., ¶ 3.) And finaly Horowitz shows his role with Veneble is to “engage in collection efforts on behalf of Veneble when clients or former clients have outstanding unpaid invoices,” and it was in this capacity that he emailed Weiss which resulted in this lawsuit. (Horowitz Decl., ¶ 4; Compl., Ex. 5 “Email”)

The evidence submitted by Weiss is sparse.  In his declaration Weiss states:

“2. When HOROWITZ emailed VENABLE LLC’s former, and my then known, clients, attaching a letter to me from attorney Stewart Webb regarding positions I had taken with regard to my client’s dispute with VENABLE over actions I professionally opined had breached its ethical and contractual duties to my clients, and characterizing such positions as “groundless,” it strained my relationship with my clients, embarrassed me, and caused them to question their confidence in my judgment, as they had held VENABLE, a major firm with a national reputation, in high regard. Although we overcame that intrusive disruption and improper attack on my relationship with my clients, it nevertheless had a tangible impact on my reputation in their eyes and, consequently on my relationship with them.

3. I am informed and believe that HOROWITZ conducts extensive and pervasive collection efforts on behalf of VENABLE in California.”

Weiss does not offer any foundation to support his opinions that his unidentified client’s receipt of an email from Horowitz caused his relationship with those clients to become “strained,” or caused them to “question his judgment,” or that it has had a “tangible impact on my reputation in their eyes” or Weiss’ relationship with them.  “[A] boilerplate sentence, ‘If called as a witness I could and would competently testify under oath to the above facts which are personally known to me,” is not sufficient to establish personal knowledge. (Citation.) ‘Where the facts stated do not themselves show it, such bare statement of the affiant has no redeeming value and should be ignored.’ ”).” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 168–169.)  More important, there is no foundation for Weiss’ information and belief that Horowitz “conducts extensive and pervasive collection efforts on behalf of VENABLE in California.”  In sum, Weiss has not submitted any competent evidence to meet his burden to show it is proper for the Court to exercise personal jurisdiction over Weiss.

I.                Plaintiff does not assert General Jurisdiction

“A nonresident defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are “substantial ... continuous and systematic.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445.)

Plaintiff Marvin Weiss (“Weiss”) does not argue or submit any evidence to demonstrate that the Court has general jurisdiction over Defendant Phillip M. Horowitz (“Horowitz”). Thus, Weiss has not met their burden to demonstrate general jurisdiction.

II.             Specific Jurisdiction 

As the party asserting jurisdiction over Horowitz, Weiss is responsible for establishing all elements of specific jurisdiction.  (See Ziller Electronics Lab GmbH v. Sup. Ct. (1988) 206 Cal.App.3d 1222, 1232.)  “When determining whether specific jurisdiction exists, courts consider the relationship among the defendant, the forum, and the litigation. 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.’” (Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 553, citing Pavlovich v. Supr. Ct. (2002) 29 Cal.4th 262, 268; Farina v. SAVWCL III, LLC (2020) 50 Cal.App.5th 286, 294.)

A.              Purposeful Availment

“The purposeful availment inquiry focuses on the defendant's intentionality.  This prong is only satisfied when the defendant purposefully and voluntarily directs his activities toward the forum so that he should expect, by virtue of the benefit he receives, to be subject to the court's jurisdiction based on his contacts with the forum.”  (Pavlovich, supra, 29 Cal.4th at 269.)  “When a defendant purposefully avails itself of the privilege of conducting activities within the forum State, it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State.”  (Id.)

            “Courts apply the “ ‘effects test’ ” to determine purposeful availment in the defamation context. [citation ]. Under this test, intentional conduct occurring elsewhere may give rise to jurisdiction in California where it is calculated to cause injury in California. The defendant must expressly aim or target his conduct toward California, with the knowledge that his intentional conduct would cause harm in the forum.” (Dongxiao Yue v. Wenbin Yang (“Yue”) (2021) 62 Cal.App.5th 539, 547.) The effects test is not applied uniformly but “[m]ost courts have agreed, nonetheless, that merely asserting that a defendant knew or should have known that his intentional acts would cause harm in the forum state is not enough to establish jurisdiction under the effects test.” (Burdick v. Superior Court (2015) 233 Cal.App.4th 8, 19 [holding that “posting defamatory statements about a person on a Facebook page, while knowing that person resides in the forum state, is insufficient in itself to create the minimum contacts necessary to support specific personal jurisdiction in a lawsuit arising out of that posting”]; see also Walden v. Fiore (2014) 571 U.S. 277, 283–284.)

            Weiss argues that the purposeful availment prong of specific jurisdiction is met because because Horowitz sent a single email communication “purposefully directed to [Weiss] a recipient in California” to create mistrust and encourage Weis’s Clients “to not follow the advice of their California attorney, citing to Moncrief and Yue as dispositive. (Moncrief v. Clark (“Moncrief”) (2015) 238 Cal.App.4th 1000; see Oppo., pp. 6–9.)

            However, Moncrief does not involve defamation, nor the use of the effects test to analyze purposeful availment, and thus is not dispositive. Furthermore, Moncrief does not involve just one email, or one form of communication to reach purposeful availment, but instead revolves around one transaction with multiple forms of communications related to the single transaction to support specific jurisdiction over the cross-defendant there. (See Moncrief, supra, 238 Cal. App. 4th at pp. 1003–1004, 1006–1007.)

            Weiss argues Yue is dispositive because like in Yue where the focus of the purposeful availment analysis is “whether the sender targeted his communications to a California audience with knowledge that the communication would cause harm in the forum,” here, Horowitz’s intention was to engender mistrust and encourage the Clients to not follow the advice of their California attorney” via a single email. (Oppo., p. 8; Yue, supra, 62 Cal.App.5th at p. 547.)

            However, even though the situation in Yue does involves a defamation claim, the communications at issue in Yue were more numerous, more threatening, and more directly related to California as a forum and the residents of California than the issue here of one email communication related to outstanding legal fees. (See Yue, supra, 62 Cal.App.5th at p. 547–549 [finding non-resident defendant worked with a California-based defendant to commit the alleged torts, by making online posts to a California audience in which he threatened to bully the plaintiff in California, announced a plan to travel to California to do so, announced he had arrived in California, and urged others in California to join him in harming the plaintiff]

            The Court finds that Weiss has not met his burden to show that Horowitz purposefully availed himself to the specific jurisdiction of California through the email communication at issue. Weiss does not provide persuasive authority to show that a similar form of communication has supported a finding of specific jurisdiction. Nor has Weiss shown any further evidence of Horowitz intent to harm Weiss other than arguing, without any foundation that Horowitz knew or should have known his one email would cause Weiss harm in the forum state.  That is not enough to establish specific jurisdiction. (See Burdick, supra, 233 Cal.App.4th 8, 19.)

B. “Controversy is related to or arises out of the defendant’s contacts with the forum” 

A lawsuit arises out of a defendant’s forum-related contacts if “there is a substantial nexus or connection between the defendant’s forum activities and the plaintiff’s claim.”  (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1068.)  The ‘arising out of or relating to’ standard is in the disjunctive, and is intended as a relaxed, flexible standard.”  (Gilmore Bank v. AsiaTrust New Zealand Limited (2014) 223 Cal.App.4th 1558, 1573.  “A claim need not arise directly from the defendant's forum contacts in order to be sufficiently related to the contact to warrant the exercise of specific jurisdiction.  Moreover, the forum contacts need not be directed at the plaintiff in order to warrant the exercise of specific jurisdiction.  Indeed, only when the operative facts of the controversy are not related to the defendant's contact with the state can it be said that the cause of action does not arise from that contact.”  (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1068.) 

Weiss does not provide any facts or evidence as to the second prong other than conclusively stating Horowitz’s communication “harmed Weiss’s reputation with his clients” which as analyzed above is not enough to support specific jurisdiction for a defamation cause of action under the effects test. (See Burdick, supra, 233 Cal.App.4th 8, 19.)

C.  “Fair play and substantial justice” 

Once a plaintiff shows that the nonresident defendant has “purposefully availed” itself of benefits and protections of forum law, that defendant bears the burden of proving it would be unreasonable for local courts to exercise jurisdiction, i.e. violate notions of fair play and substantial justice.  (Burger King Corp, supra, 471 U.S. at p. 475.) 

 In determining whether assertion of jurisdiction would be unreasonable, the court must consider (1) the burden on the defendant; (2) the forum State's interest in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several States in furthering fundamental substantive social policies.  (See World-Wide Volkswagen Corp. v. Woodson (1980) 444 US 286, 292.)

Here, Weiss has not shown that Horowitz has purposefully availed himself to the California courts, but even if Weiss had done so, Horowitz has met his burden to show it would be unreasonable for California courts to exercise jurisdiction.

III.      Plaintiffs Request for Jurisdictional Discovery is DENIED.

“A trial court has the discretion to continue the hearing on a motion to quash service of summons for lack of personal jurisdiction to allow the plaintiff to conduct discovery on jurisdictional issues.” (HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1173.) a continuance for jurisdictional discovery is only appropriate if the plaintiff identifies the “specific area of inquiry that they would pursue if they were allowed to conduct discovery” and “demonstrate[s] that discovery is likely to lead to the production of evidence of facts establishing jurisdiction.” (Preciado v. Freightliner Custom Chassis Corporation (2023) 87 Cal.App.5th 964, 972–973, review denied (May 3, 2023).) When a court could “reasonably conclude further discovery would not likely lead to production of evidence establishing jurisdiction,” it is proper to deny the request.” (Beckman v. Thompson (1992) 4 Cal.App.4th 481, 487.)

Weiss fails to identify specific areas of inquiry he would pursue in either a general or specific jurisdictional inquiry as to Horowitz specifically. Thus, the Court concludes that further discovery would not likely lead to Weiss’s request is DENIED.