Judge: Jon R. Takasugi, Case: 23STCV08440, Date: 2023-12-13 Tentative Ruling

Case Number: 23STCV08440    Hearing Date: April 10, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion to quash is DENIED, WITHOUT PREJUDICE.   

On February 2, 2024, Plaintiffs Jose Guadalupe-Soto Rodriguez and Sara

Sanchez (collectively, Plaintiffs) filed the operative first amended complaint against

39 Defendants, alleging: (1) negligence; (2) strict liability—warning defect; (3)

strict liability—design defect; (4) fraudulent concealment; (5) breach of implied

warranties; and (6) loss of consortium.

            Now, specially appearing Defendant Stylenquaza LLC moves for an order

quashing service of summons and dismissing the action as to Defendant.

Background

This is a toxic tort case arising from Plaintiff Jose Guadalupe Soto-

Rodriguez’ (Plaintiff) claim that he developed silicosis and consequential injuries

through his employment working with stone products manufactured, distributed,

and/or supplied by Defendants.

Legal Standard

Cal Code of Civil Procedure § 418.10(a)(1) states:

(a) 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

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.

(2) To stay or dismiss the action on the ground of inconvenient forum.

(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.”

Plaintiff bears the burden of proving by a preponderance of evidence that

service was properly accomplished. “When a nonresident defendant challenges

personal jurisdiction the burden shifts to the plaintiff to demonstrate by a

preponderance of the evidence that all necessary jurisdictional criteria are met.

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, 1232-1233.) “In the absence of a voluntary

submission to the authority of the court, compliance with the statutes governing

service of process is essential to establish that court's personal jurisdiction over a

defendant (§ 410.50.) When a defendant challenges that jurisdiction by bringing a

motion to quash the burden is on the plaintiff to prove the existence of jurisdiction

by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist

Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.)

Discussion

Specially appearing Defendant Stylenquaza LLC (Defendant) moves for an order quashing service of summons and dismissing the action as to Defendant.

Defendant's Moving Argument

Defendant contends that Plaintiffs are improperly attempting to drag Defendant into this litigation even though Defendant is not subject to the Court’s personal jurisdiction.

Defendant first contends that Plaintiffs’ purported service on Defendant in California is invalid because Defendant does not have a registered agent or other person authorized to accept service in California.

Defendant next contends that, even if Plaintiffs had properly served Defendant, it would be unconstitutional to subject Defendant to jurisdiction in California as it would violate traditional notions of fair play and substantial justice.

Defendant submits the Declaration of An Nguyen, the manager and co-owner of Defendant, as evidence that Defendant is not subject to personal jurisdiction in

California. According to the Nguyen Declaration:

-         Defendant is a Texas limited liability company with its principal place of business in Dallas, Texas, where its registered agent and main office are also located. It was established in Texas in December 2010, and in 2011 opened a distribution center in Dallas, Texas. Defendant’s sole business is to distribute quartz slabs supplied by a Vietnamese quartz manufacturer. Defendant does business under the name “Vicostone USA.” (Para. 3.)

-         None of Defendant’s owners are residents of California (Para. 4.)

-         The states Defendant primarily operates in do not include California (para.

5.)

-         Since 2008, another named defendant, Pental Granite and Marble, LLC has

been making Vicostone-made products on the West Coast, the North East, Alaska, and Hawaii under the Pental brand name. Defendant did not create, control, or employ this distribution system. (para. 6.)

-         On very rare occasions, when Pental has emergency shortages, Pental purchases some quartz slabs from Stylenquaza, but in very insignificant amounts. When these shortages occur, Pental books a third-party truck company to pick up the products from Stylenquaza. Stylenquaza has no control over where the products that Pental purchases from Stylenquaza are distributed. (Para. 7.)

-         Between 2018 and 2022, Defendant distributed insubstantial amounts of pre-fabricated tops directly to California, and supplied, via six shipments to California, 22 total stone slabs representing approximately 0.001 percent of all of the square footage of product it has ever distributed in its more than a decade of business. (Para. 8.)

-         Other than these extremely rare instances of shipments to California, Defendant does not conduct, nor has it ever conducted, any business in California (Para. 9), produce, promote, sell, market, or distribute any products in California (Para. 10), or directly sell, ship, or otherwise introduce any products into commerce in California. (Para. 11.)

-         Defendant did not design its products specifically for the market in California. (Para. 12.)

-         Defendant is not now, nor has it ever been, qualified, licensed, or authorized to do business in California. (Para. 13.)

-         Defendant does not have and never has had any offices, officers, employees, sales representatives, or registered agent or other person authorized to accept service of process in California. (Para. 14.)

-         Defendant has not entered into joint business ventures or other such arrangements with any business in California. (Para. 15.)

-         Defendant does not own, rent, or lease any real property in California. (Para.

16.)

-         Defendant does not operate any kind of office or other facility in California. (Para. 17.)

-          Defendant does not maintain inventory in California. (Para. 18.)

-          Defendant does not maintain a bank account in California. (Para. 19.)

-          Defendant does not pay any taxes in California. (Para. 20.)

-         Defendant does not advertise in any media that is directed toward California.

(Para. 21.)

-         Other than two instances in which Defendant was dismissed for lack of personal jurisdiction, Defendant has no record of having been named a party

to a lawsuit in federal or state court in California prior to December 2022. (Para. 22.)

-         Defendant’s registered and authorized agent in several states is CT Corporation System; however, not in California. CT Corporation System did not transmit to Defendant any service of process related to this case. Nguyen is unaware of any attempts by Plaintiffs to serve Defendant other than by their purported service in California as indicated on their Proof of Service of Summons filed in this Court. (Para. 23.)

-         The only allegation in Plaintiffs’ FAC going towards the issue of jurisdiction was that Defendant was “a Texas limited liability company doing business as Vicostone US and which at all material times hereto, was doing business in the County of Los Angeles, State of California.” (FAC, para. 67.)

Plaintiffs’ Opposition

In opposition, Plaintiffs argue that Defendant is a United States based

subsidiary of Vicostone JSC, a Vietnam based artificial stone manufacturer, and that

Defendant distributed to Decedent the artificial stone that caused his silicosis.

Plaintiffs submit the Declaration of Raphael Metzger, Plaintiffs’ counsel, in support

of their position. The Metzger Declaration states the following:

The information contained in the Nguyen Declaration actually supports

specific jurisdiction, especially the admissions that Defendant shipped stone slabs

to California six different times between 2018 and 2022, distributed pre-fabricated

tops during that same time period, on occasion sold Vicostone quartz slabs to

Pental for distribution in California, and had a distribution agreement with Vicostone

JSC.

Furthermore, even if Defendant’s sales of its products in California could be

considered extremely attenuated, that should not determine whether specific

jurisdiction applies here because Defendant operates a website that directs

customers to purchase their product in California. Plaintiffs contend that

Defendant's website directs prospective customers to “find a Vicostone authorized

dealer near you” and lists five authorized dealers throughout California from whom

customers can purchase the product. Plaintiffs contend that pursuant to the

California Supreme Court’s decision in Snowney v. Harrah's Entertainment, Inc.,

this establishes specific jurisdiction regardless how much or how little product was

sold. Plaintiffs contend that Defendant designated Integrated Resources Group, Inc.

as its regional distributor for Northern California at three locations and Architectural

Surfaces Company as its regional distributor for Southern California at two

locations, including one in Los Angeles County. Further, Plaintiffs contend that

Defendant’s argument that the website is the website of Vicostone Joint Stock

Company (VJSC) and not Defendant is misleading because the website's url is

us.vicostone.com and the site itself contains pages headed “Vicostone USA.”

Plaintiffs also contend that pursuant to distribution contracts between VJSC

and Defendant, which they cannot produce, Defendant is VJSC’s authorized

distributor in the USA of the company’s engineered stone slabs that are the subject

of this lawsuit.

Furthermore, VJSC’s annual report describes Defendant as VJSC’s direct

distributor in North America.

Finally, Plaintiffs contend that in LASC Case No. 22STCV31907, which

Defendant relies on to show that its previous motion to quash was granted, the

Court’s decision was issued based on Defendant’s perjurious testimony. Specifically,

Plaintiffs contend that Defendant’s motion to quash in that case was supported by a

separate declaration by An Nguyen in which he stated that Defendant did not know

where the distributer, Pental, was distributing its product, and therefore that it had

no knowledge that its product was distributed in California. Plaintiffs contend that

this contradicts the testimony provided in Nguyen’s declaration in this case.

Personal Jurisdiction Analysis

A California court can exercise personal jurisdiction over a nonresident

defendant who has “minimum contacts” with the state. (Pavlovich v. Superior Court

(2002) 29 Cal.4th 262, 268; Virtualmagic Asia, Inc. v. Fil-Cartoons, Inc. (2002) 99

Cal.App.4th 228, 238.) A defendant has minimum contacts if the quality and nature

of its activity in the forum state (referred to as “contacts”) is such that it is

reasonable and fair to require the defendant to conduct a defense in that state.

(Paviovich, supra, at 268; Strasner v. Touchstone Wireless Repair & Logistics, LP

(2016) 5 Cal.App.5th 215, 221.)

The focus of the minimum contacts analysis is the defendant's contacts

with the forum. (Bristol-Myers Squibb Co. v. Superior Court (2017) 582 U.S. 255,

260.) Depending on the extent of a defendant's contacts with California, it may be

subject to either general or specific jurisdiction. (Elkman v. National States Ins.

(2009) 14 Cal.4th 434, 445-446.)

A court can exercise specific jurisdiction over a nonresident defendant if (1)

the defendant has purposefully availed itself of the forum's benefits and protections

and (2) the cause of action relates to or arises out of the defendant's contacts with

the forum, and (3) the exercise of personal jurisdiction would comport with fair play

and substantial justice. (Pavlovich, supra, 29 Cal.4th at 269.) The contacts for

specific jurisdiction are those that existed when the plaintiff's cause of action arose.

(Strasner, supra, 5 Cal.App.5th at 226.)

To establish minimum contacts for specific jurisdiction, the plaintiff must show that the defendant has purposefully availed itself of the privilege of conducting activities in California to involve its benefits and protections. (See Axiom Foods, Inc. v. Acerchem Int'l (9th Cir. 2017} 874 F.3d 1064, 1068; Bristol- Myers Squibb Co. v. Superior Court (2016) 1 Cal.5th 783, 799-800.) In this analysis, (1) only the defendant's contacts with California are considered, not the defendant's contacts with persons who reside there, (2) the defendant's contacts must have been purposeful rather than random, fortuitous, or attenuated, and (3) the defendant must have sought some benefit by availing itself of the jurisdiction. (See Walden v. Fiore (2014) 571 U.S. 277, 285-286; Burger King Corp. v.

Rudzewicz (1985) 471 U.S. 462, 474-475; Vons Cos., supra, 14 Cal.4th at pp. 446,

458.)

In its tentative ruling, the Court concluded that Plaintiffs had not carried their burden of demonstrating that Defendant has sufficient minimal contacts with California to allow for a finding of personal jurisdiction. (Jewish Defense Organization, Inc. v.

Superior Court, 72 Cal. App. 4th 1045, 1054-55 (1999) (plaintiff opposing motion

to quash service of summons has burden of producing "competent evidence in

affidavits and authenticated documentary evidence”. )

However, after review of supplemental materials, the Court concludes the motion should not be denied, and that jurisdictional discovery is necessary.

First, the Court previously concluded that the contacts Defendant maintained could not be said to be substantial, continuous, and systematic. However, Plaintiff submitted evidence that:

-         Stylenquaza has sold 22 stone slabs directly to California customers since 2018.

-         Stylenquaza admits it sold 544 slabs to Pental (a west coast distributor of Pental Quartz), but is only “aware” of 11 slabs ending up in California.

-         By 2016, the stylenquaza.com website redirected visitors to us.vicostone.com, and Stylenquaza edits all of the words in English on the site. (PMK for Stylenquaza LLC An Hai Nguyen, pp.75:24-77:19.)

-         The stylenquaza.com website does not inform visitors that Stylenquaza LLC dba Vicostone USA has a limited territory in which it represents Vicostone. (Id. at p.72:16-22.)

-         The warranty section of the site invites visitors to register Vicostone products for warranty, including visitors from California. (Id. at pp.70:14-71:2.)

-         By 2016, the stylenquaza.com website redirected visitors to us.vicostone.com, and Stylenquaza edits all of the words in English on the site. (Id. at pp.75:24-77:19.)

-         All of the content of the us.vicostone.com website had a copyright notice at the bottom of the web pages stating “Copyright Stylenquaza LLC, Vicostone USA 2015, all rights reserved.” (Id. at pp.93:16-95:8.)

-         The us.vicostone.com website states “Vicostone is being distributed across the United States of America with four fully stocked warehouses of Vicostone products (Stylenquaza’s warehouses) and many third-party distributors’ warehouses.” (Id. at pp.91:6-92:9.)

-         The us.vicostone.com website, with all content edited and owned by Stylenquaza, directs website visitors, including those from California, where to buy Vicostone in California. (Id. at pp.92:10-93:15.)

-         Stylenquaza offers California visitors to us.vicostone.com a 15-year warranty on Vicostone products warranted expressly by Vicostone USA (Stylenquaza). (Id. at pp.80:10-81:17.)

-         At trade shows, Stylenquaza LLC dba Vicostone USA represents itself as a distributor of VICOSTONE products and gives leads from prospective California customers to Vicostone. (Id. at pp.104:23-106:13.)

-         When importing Vicostone slabs from Vietnam, “a large percentage” of slabs shipped to Stylenquaza are shipped through the ports of California. (Id. at pp.104:23-106:13.)

As such, Plaintiff has not only submitted evidence Stylenquaza directly sold 22 slabs to California, but Plaintiff also submitted evidence which at least supports a reasonable inference that the us.vicostone.com website is its own. The proper inquiry is the nature and quality of the defendant's activity in the forum state, not the quantity. (As You Sow v. Crawford Laboratories, Inc. (1996) 50 Cal.App.4th 1859, 1870.) Here, at the pleading stage, allegations that Defendant maintains a website which conducts business in California and that it itself has conducted sales in California could be sufficient to show a purposeful availment of California as a forum.

Second, in its tentative ruling, the Court’s misfocused its analysis by relying on the fact that there is nothing in Plaintiffs’ Complaint tying the 22 stone slabs to the decedent’s injuries. As noted by the Plaintiff, the California Supreme Court has unanimously held "the defendant's forum activities need not be directed at the plaintiff in order to give rise to specific jurisdiction.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 455.) As such, there is no requirement that there must be a plaintiff-specific link between its sales of stone slabs and the underlying litigation. Rather, the standard is a “relaxed, flexible [one], rather than one requiring that the plaintiff’s claim arise out of the forum contact in any narrow sense:

The connection between plaintiffs' complaint and Cassiar's forum-based activities meets the Vons relatedness test. Plaintiffs who were exposed to asbestos fibers within California are suing Cassiar only because it purposefully sold asbestos fiber in this state. Cassiar's obligations (if any) to plaintiffs are connected to its California-based activities. The goal of fairness to defendants is met by extending the burdens of California jurisdiction over a defendant who purposefully availed itself of the benefits of selling asbestos fibers within the state. Since plaintiffs were harmed " 'while engaged in activities integral to the relationship [Cassiar] sought to establish, we think the nexus between the contacts and the cause of action is sufficiently strong to survive the due process inquiry at least at the relatedness stage.' " (Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal. 4th at p. 470.)

(Cassiar Mining Corp. V. Superior Court(1998) 66 Cal. App. 4th 550, 558.) 

            Here, Plaintiff alleges she was harmed through exposure to “fine respirable crystalline silica dust” created by the Vicostone products which are marketed and sold by Stlenquaza directly to California customers and third-party distributors. At the pleading stage, this could be sufficient to show that Plaintiff was harmed while engaged in activities integral to the relationship Stylenquaza sought to establish in California.

            While Defendant argues that it sells products which could not be dust-producing,  Plaintiff argues that pre-fabricated tops have to be polished and edged, which creates “fine respirable crystalline silica dust.” As such, this issue contemplates further jurisdictional discovery. After further jurisdictional discovery is conducted, Defendant may renew its motion if it believes that the evidence establishes that the pre-fabricated tops sold by Stylenquaza are not themselves dust-producing products.

            Based on the foregoing, Defendant’s motion to quash is denied, without prejudice. 

It is so ordered.

Dated:  April    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.  

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Cosentino’s motion to quash for improper service is DENIED.

Cosentino’s motion to quash based on lack of jurisdiction is CONTINUED, consistent with the ruling set forth BELOW. 

On February 2, 2024, Plaintiffs Jose Guadalupe-Soto Rodriguez and Sara

Sanchez (collectively, Plaintiffs) filed the operative first amended complaint against

39 Defendants, alleging: (1) negligence; (2) strict liability—warning defect; (3)

strict liability—design defect; (4) fraudulent concealment; (5) breach of implied

warranties; and (6) loss of consortium.

Now, specially appearing Defendant Cosentino Group, S.A. moves for an order

quashing service of summons and dismissing the action as to Defendant.

Background

This is a toxic tort case arising from Plaintiff Jose Guadalupe Soto-

Rodriguez’ (Plaintiff) claim that he developed silicosis and consequential injuries

through his employment working with stone products manufactured, distributed,

and/or supplied by Defendants.

Legal Standard

Cal Code of Civil Procedure § 418.10(a)(1) states:

“(a) 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

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.

(2) To stay or dismiss the action on the ground of inconvenient forum.

(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.

Plaintiff bears the burden of proving by a preponderance of evidence that

service was properly accomplished. “When a nonresident defendant challenges

personal jurisdiction the burden shifts to the plaintiff to demonstrate by a

preponderance of the evidence that all necessary jurisdictional criteria are met.

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, 1232-1233.) “In the absence of a voluntary

submission to the authority of the court, compliance with the statutes governing

service of process is essential to establish that court's personal jurisdiction over a

defendant(§ 410.50.) When a defendant challenges that jurisdiction by bringing a

motion to quash the burden is on the plaintiff to prove the existence of jurisdiction

by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist

Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.)

Discussion

Specially appearing Defendant Cosentino Group, S.A. (Defendant) moves

for an order quashing service of summons and dismissing the action as to

Defendant.

Objections

Plaintiffs object to different portions of the Declaration of Jorge Cuervo

Vela.

Plaintiffs’ objections are uniformly OVERRULED. The declaration is based on

Vela’s personal knowledge as Defendant’s Vice President, Legal and Compliance,

and review of the relevant business records. Vela’s statements are not

conclusionary, nor are they contrary to other evidence.

Defendant objects to different portions of the Declaration of Raphael

Metzger.

Defendant's objections are OVERRULED.

Requests for Judicial Notice

Plaintiffs request the Court take judicial notice of the following in support of

Plaintiffs’ position that Defendant was properly served in compliance with the

Hague Convention:

-         Convention on the Service Abroad of Judicial and Extrajudicial

Documents In Civil Or Commercial Matters (the “Hague Convention”)

(RIN, Exh. A.}

-         Canada - Central Authority & practical information (RJN, Exh. B.)

   United States - Central Authority & practical information (RJN, Exh. C.)

-         Pages 7 and 8 of the Practical Handbook on the Operation of the Service

Convention published by the Hague Conference on Private International

Law Permanent Bureau in 2016 regarding “Place of service as

determining factor.” (RJN, Exh. D.)

-         Page XL of the Glossary of the Practical Handbook on the Operation of

the Service Convention published by the Hague Conference on Private

International Law Permanent Bureau in 2016 defining State of

destination as “the State where service is, or will be, effected.” (RIN,

Exh. E.)

Plaintiffs’ requests for judicial notice are GRANTED.

Defendant's Moving Argument and Declaration of Jorge Cuervo Vela

Defendant first contends that Plaintiffs did not serve Defendant properly

according to the requirements of the Hague Convention. Instead of serving

Defendant through Spain’s central authority, Plaintiffs made two attempts to serve

Defendant in compliance with the Hague Service Convention under article 10,

subdivisions (a) and (b), both of which were invalid.

First, Plaintiffs attempted to personally serve an officer of Defendant while

he was visiting Canada under 10(b) of the Hague Service Convention and British

Columbia Supreme Court Civil Rule 4-3(2)(b). Spain did not object to 10(b) of the

Convention, thereby consenting to personal “service within its boundaries”

(Volkswagenwerk, supra, 486 U.S. at p. 699), “directly through the

judicial officers, officials or other competent persons” of Spain. (Hague Service

Convention, art. 10, subd. (b).) A signatory to the Hague Service Convention that

does not object to 10(b) does not consent to personal service in any country in the

world that also happens to be a signatory, even if that country has no connection

whatsoever to the summons being served.

Second, Plaintiffs improperly attempted to serve Defendant using Federal

Express under 10(a). Plaintiffs’ “attempted service by Federal Express did not

constitute valid service of process under California law, and as a result, did not

comply with the Hague Service Convention pursuant to article 10, subdivision (a).”

(Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1067.

Defendant submits the following portions of the Declaration of Jorge

Cuervo Vela in support of its position that service was not proper:

-         “Suministros” is a location where supplies and occasionally FedEx deliveries are received. No one working at this location is authorized to accept service of process on behalf of Defendant. (3-18-2024 Declaration, para. 5.)

-         Vela reviewed the return receipt that Plaintiffs’ counsel claims shows service of the summons in this matter by United States Postal Service registered mail, return receipt requested. In the space for the signature of the addressee, there is a Cosentino Global, S.L.U. stamp. This stamp is used by receptionists and mail clerks who are not authorized to accept service of process on behalf of Defendant. (3-18-2024 Declaration, para. 6.)

Next, Defendant contends that, even if Plaintiffs had properly served Defendant, it would be unconstitutional to subject Defendant to jurisdiction in California as it would violate traditional notions of fair play and substantial justice.

The FAC alleges that Plaintiffs were injured from inhaling dust from various stone products manufactured by 39 defendants, including Defendant and its indirect United States subsidiary, C & C North America, Inc. (“C & C”).

Defendant submits the Declaration of Jorge Cuervo Vela in support of its position that it has not established minimum contacts in California to support general or specific jurisdiction. Vela, Defendant’s and Defendant’s subsidiaries’ current Vice President, Legal and Compliance, who has held various positions with companies owned by Cosentino Group since 2011, submitted two declarations, one in support of the initial moving papers and one in support of the reply, stating:

-         Defendant is organized under the laws of Spain, its headquarters are in

Spain, and it operates exclusively in Spain. (10-11-2023 Declaration, para.

4.)

-         Defendant has never conducted any business in California. (10-11-2023

Declaration, para. 5.)

-         Defendant is a holding company that does not develop, design, manufacture,

distribute, sell, advertise, or market any products. (10-11-2023 Declaration,

para. 6.)

-         C & C is a Delaware corporation with its principal place of business in Coral

Gables, Florida. C & C is an indirect subsidiary of Defendant. (10-11-2023

Declaration, para. 7.)

-         Defendant and C & C are separate and independent corporate entities. Defendant does not manage or control the day-to-day operations of C&C. C & C keeps its own separate bank accounts and business records, and C&C pays and manages its own employees. (10-11-2023 Declaration, para. 8.)

-         Defendant does not own, maintain, or control the website www.cosentino.com. (3-18-2024 Declaration, para. 4.)

Defendant contends that Plaintiffs cannot successfully show that C & C's contacts with California should be imputed to Defendant because Plaintiffs cannot show Defendant exercised excessive control over C & C’s forum-based operations as holding companies such as Defendant do not participate in making day-to-day business decisions in the companies that they own.

Plaintiffs’ Opposition

In opposition, Plaintiffs argue that regarding compliance with the service

requirements of the Hague Convention, the Hague Convention does not apply

where an officer of the foreign corporation is personally served with the summons

in compliance with the laws of the forum (California in this case) and the place of

service (British Columbia in this case).

Plaintiffs contend they attempted to serve the Executive Vice President of

Defendant, Eduardo Cosentino, at his office and his personal residence in Florida,

but their process server was barred from entry in the gated community and his

workplace. Therefore, they were forced to hire an international process server.

However, upon discovering Cosentino was in Vancouver on September 13, 2023, a

process server served him with the summons and complaint. Cosentino was

personally served in British Columbia at a ribbon-cutting event for the opening of a

new Cosentino showroom at 1640 West 3rd Avenue, in Vancouver, Canada.

Plaintiffs’ counsel also sent copies of the summons and complaint via Federal

Express International Priority, Tracking Number 783826293331, to Cosentino’s

corporate headquarters in Spain on September 15, 2023. The package was

delivered to Cosentino in Spain on September 20, 2023 and was signed for by S.

Uministros at Cosentino’s corporate headquarters in Cantoria, Spain. Additionally,

Plaintiffs’ counsel sent copies of the summons and complaint to Defendant's

corporate headquarters in Spain by First Class Mail, postage pre-paid, with return

receipt requested, and received written confirmation of Federal Express service.

Plaintiffs also argue, regarding personal jurisdiction, Plaintiffs have submitted massive evidence that Defendant has long conducted business in California, even naming Los Angeles a “Cosentino City.”

Compliance with Hague Convention

1. Applicability of the Hague Service Convention

Plaintiffs contend the Hague Service Convention does not apply. Plaintiffs argue that as long as service is proper under state law and the Due Process Clause, no official transmittal through the Hague Service Convention need be made. However, California law is clear that service on a foreign company completed in a foreign country must be completed through the Hague Service Convention. (Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd. (2020) 9 Cal.Sth 125, 138.) Thus, Plaintiff’s service on Cosentino must be valid under the Hague Service Convention, Art. 10(b).

2. Application of the Hague Service Convention

In its tentative ruling, the Court agreed with Defendant that service was not properly effected in compliance with the Hague Convention. However, after Plaintiff’s counsel advised the Court of case law he believed supported a contrary conclusion, the Court continued the hearing and directed the parties to file supplemental briefing.

Having reviewed the supplemental materials, the Court finds service to be adequate. 

Article 10 of the Hague Service Convention provides in pertinent part that

“[p]rovided the state of the destination does not object, the present Convention shall

not interfere with - ... b) the freedom of judicial officers, officials, or other

competent persons of the State of origin to effect service of judicial documents

directly through the judicial officers, officials, or other competent persons of the

State of destination, ... .” (Hague Service Convention art. 10, Nov. 15, 1965, 20

U.S.T. 361.)

Neither Spain nor Canada have objected to Article 10(b). (A treaty is to be

understood by its plain language unless such would create a result inconsistent with

the expectations of its signatories. (Landstar Global Logistics, Inc. v. Robinson &

Robinson, Inc. (2013) 216 Cal.App.4th 378, 385.)

            CCP section 413.10 provides:

Except as otherwise provided by statute, a summons shall be served on a person:

(a) Within this state, as provided in this chapter.

(b) Outside this state but within the United States, as provided in this chapter or as prescribed by the law of the place where the person is served.

(c) Outside the United States, as provided in this chapter or as directed by the court in which the action is pending, or, if the court before or after service finds that the service is reasonably calculated to give actual notice, as prescribed by the law of the place where the person is served or as directed by the foreign authority in response to a letter rogatory. These rules are subject to the provisions of the Convention on the “Service Abroad of Judicial and Extrajudicial Documents” in Civil or Commercial Matters (Hague Service Convention).

            CCP section 416.10 provides:

A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods:

(a) To the person designated as agent for service of process as provided by any provision in Section 202, 1502, 2105, or 2107 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable)

(b) To the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.

(c) If the corporation is a bank, to a cashier or assistant cashier or to a person specified in subdivision (a) or (b).

(d) If authorized by any provision in Section 1701, 1702, 2110, or 2111 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable), as provided by that provision.

Rule 4-3 provides that, “if the chief place of business of the corporation is outside British Columbia, every person who, within British Columbia, transacts or carries on any of the business of, or any business for, that corporation is deemed to be an agent of the corporation” and that service on a corporation may be effected “by leaving a copy of the document with the president, chair, mayor or other chief officer of the corporation.” (Rule 4-3(2)(b)(i).)

Here, first, the Hague Service Convention does not require that service take place only within the foreigner’s own country. Yamaha Motor Company, Ltd. v. Superior Court (2009) 174 Cal.App.4th is instructive on this point. There, it was claimed by Yamaha, a Japanese company, that it was not properly served as a foreign entity as the Hague Service Convention had not been utilized. The Court rejected the claim that, as a foreign entity service had to be performed under the Hague Service Convention, rather than merely comply with service rules under California law. Relying on Volkswagenwerk Aktiengesellschaft v Schlunk (1986) 486 U.S. 694, the Court wrote: “[w]here service on a domestic agent is valid and complete under both state law and the Due Process Clause, our inquiry ends and the Convention has no further implications.” The Court in Delinger v. Chinadotcom (2003) 110 Cal.App.4^th reached a similar conclusion.

Second, Canada permits Article 10(b) service, the type of service used in this case, and the Court finds that “State of destination” refers to the State where service takes place.

This means that as long as a means of service authorized by California was used, and the means of service was authorized by British Columbia law, the service is consistent with Article 10(b) and is in compliance with the Hague Service Convention.

Here, Plaintiff’s service of Cosentino Group was valid under California and British Columbia law. As for California law, CCP section 416.10 governs service of a corporation, and authorizes delivery of a copy of the summon and complaint to an officer of the corporation as was performed here. As for British Columbia law, the Court agrees with Plaintiffs’ interpretation of Rule 4-3 that “[a]s an Executive Vice-President of Cosentino Group, Eduardo Cosentino is clearly an ‘agent of the corporation’ within the meaning of subdivision (iii) and, since, at the time of service, he was officiating at a ribbon-cutting event of Cosentino at the opening of a new Cosentino City in Vancouver, he is a person who, ‘within British Columbia transact[ed] or carrie[d] on . . . business of, or . . . for [Cosentino Group, he] is deemed to be an agent of the corporation,’ within the meaning of subdivision (iv) of Rule 4-3 of the Supreme Court Rules of British Columbia Reg 168/20009.” (Opp., 10: 21-26.)

            This conclusion is reinforced by the authority set forth in Plaintiff’s supplemental briefing. While the holdings cited there are not binding here, it is not irrelevant that other Courts have concluded that that service by the Canadian process server of the summons and complaints on Eduardo Cosentino in Vancouver was legally valid. Moreover, Cosentino filed Petitions for Writ of Mandate in the Second Appellate District challenging those rulings, and in both cases the petitions were denied, concluding that service of process was valid. When Cosentino filed Petitions for Review in the California Supreme Court, the California Supreme Court directed Plaintiff’s counsel to file Answer Briefs. Upon reading and considering the facts and the law cited in Plaintiff’s Answer Briefs, the California Supreme Court denied Cosentino’s Petitions for Review.

Therefore, the court GRANTS Defendant’s motion to quash service of summons.

            In its tentative ruling, the Court also considered the personal jurisdiction argument set forth by Cosentino. However, upon closer consideration and review of the other opinions considering Cosentino’s claims, the Court concludes that the jurisdictional argument is not ripe at this time. Plaintiff has sought discovery addressing the jurisdictional facts. “A plaintiff attempting to assert jurisdiction over a nonresident defendant is entitled to an opportunity to conduct discovery of the jurisdictional facts necessary to sustain its burden of proof.” (Magnecomp Corp. v. Athene Co. (1989) 209 Cal.App.3d 526, 533.) “In order 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 Cases (2005) 135 Cal.App.4th 100, 127.)

            Accordingly, the Court directs the parties to meet and confer regarding jurisdictional discovery, and the Motion to Quash based on a claim of lack of minimum contact with the State of California is continued to a future hearing date to be set after the requisite discovery and meet and confer has taken place.

            Based on the foregoing, Cosentino’s motion to quash for improper service is denied. Cosentino’s motion to quash based on lack of jurisdiction is continued consistent with the ruling set forth above. 

It is so ordered.

Dated:  April    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.  

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Dal’s motion to strike is GRANTED.

On 4/17/2023, Plaintiffs Jose Guadalupe-Soto Rodriguez and Sara Sanchez (collectively, Plaintiffs) filed suit against 39 Defendants, alleging: (1) negligence; (2) strict liability—warning defect; (3) strict liability—design defect; (4) fraudulent concealment; (5) breach of implied warranties; and (6) loss of consortium.

            Now, Defendant Dal-Tile Distribution, Inc. (Dal) moves to strike Plaintiff’s FAC.

Discussion

            Dal moves to strike the generalized product identification language “[a]nd other stone products to be identified through the course of discovery,” on the grounds that it violates the toxic tort pleading requirements.

            The Court agrees.

Under Brockrath, “[a] plaintiff must allege facts albeit as succinctly as possible, explaining how the conduct caused or contributed to the injury.” (Id. at p. 78.) Specifically, a plaintiff must plead the following in his or her toxic tort complaint: 1) That he or she was exposed to each of the toxic materials claimed to have caused a specific illness; 2) Each product that allegedly caused the injury; 3) That as a result of the exposure, the toxins entered his body; 4) That he suffers from a specific illness, and that each toxin that entered his body was a substantial factor in bringing about, prolonging, or aggravating that illness; and 5) That each toxin he absorbed was manufactured or supplied by a named defendant. (Id. at p. 80.)

As such, a reference to undetermined products is improper: “[t]he law cannot tolerate lawsuits by prospecting plaintiffs who sue multiple defendants on speculation that their products may have caused harm over time through exposure to toxins in them, and who thereafter try to learn through discovery whether their speculation was well-founded.” (Id. at p. 81.)

            Based on the foregoing, Dal’s motion to strike is granted.

It is so ordered.

Dated:  April    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.