Judge: Keri G. Katz, Case: 37-2023-00042062-CU-BT-CTL, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  Business Tort Motion to Quash (Civil) 37-2023-00042062-CU-BT-CTL THIRTY THREE THREADS INC VS PACIFIC MANUFACTURING LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Specially Appearing Defendant The Sticky Studio Sock LLC d/b/a Lucky Honey's motion to quash service of summons is GRANTED. CCP § 418.10.

California courts may exercise jurisdiction over nonresidents 'on any basis not inconsistent with the Constitution of this state or of the United States.' (Code Civ. Proc., § 410.10.) The United States Constitution permits a state to exercise jurisdiction over a nonresident defendant if the defendant has sufficient 'minimum contacts' with the forum such that 'maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' [Citations.]' (Internat. Shoe Co. v. Washington (1945) 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95.) Personal jurisdiction may be either general or specific. (Vons, supra, 14 Cal.4th at p. 445, 58 Cal.Rptr.2d 899, 926 P.2d 1085.) A nonresident defendant is subject to the forum's general jurisdiction if the defendant's contacts are ' 'substantial ...

continuous and systematic.' ' (Ibid., quoting Perkins v. Benguet Mining Co. (1952) 342 U.S. 437, 445, 446, 72 S.Ct. 413, 96 L.Ed. 485.) . . . .

'The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant 'focuses on 'the relationship among the defendant, the forum, and the litigation.' ' ' (Walden, supra, 571 U.S. at p. ––––, 134 S.Ct. at p. 1121; accord, Pavlovich, supra, 29 Cal.4th at p. 269, 127 Cal.Rptr.2d 329, 58 P.3d 2.) 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. (Pavlovich, supra, 29 Cal.4th at p. 269, 127 Cal.Rptr.2d 329, 58 P.3d 2; Vons, supra, 14 Cal.4th at pp. 446, 447, 58 Cal.Rptr.2d 899, 926 P.2d 1085.) Burdick v. Superior Court (2015) 233 Cal.App.4th 8, 17-18. See also, Vons Companies v. Seabest Foods (1996) 14 Cal.4th 434, 444-447.

Plaintiff relies only on specific jurisdiction. Addressing the first of the three requirements for the exercise of specific jurisdiction, Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, explains, ' 'The purposeful availment inquiry ... focuses on the defendant's intentionality. [Citation.] This prong is only satisfied when the defendant purposefully and voluntarily directs [its] activities toward the forum so that [it] should expect, by virtue of the benefit [it] receives, to be subject to the court's jurisdiction based on' [its] contacts with the forum.' (Pavlovich, supra, 29 Cal.4th at p. 269, 127 Cal.Rptr.2d 329, 58 P.3d 2, quoting U.S. v. Swiss American Bank, Ltd. (1st Cir.2001) 274 F.3d 610, 623–624.) Thus, purposeful availment occurs where a nonresident defendant ' 'purposefully direct[s]' [its] activities at residents of the Calendar No.: Event ID:  TENTATIVE RULINGS

3063286  8 CASE NUMBER: CASE TITLE:  THIRTY THREE THREADS INC VS PACIFIC MANUFACTURING LLC  37-2023-00042062-CU-BT-CTL forum' (Burger King, supra, 471 U.S. at p. 472, 105 S.Ct. 2174), ' 'purposefully derive[s] benefit' from' its activities in the forum (id. at p. 473, 105 S.Ct. 2174), 'create[s] a 'substantial connection' with the forum' (id. at p. 475, 105 S.Ct. 2174), ' 'deliberately' has engaged in significant activities within' the forum (id. at pp. 475–476, 105 S.Ct. 2174), or 'has created 'continuing obligations' between [itself] and residents of the forum' (id. at p. 476, 105 S.Ct. 2174). By limiting the scope of a forum's jurisdiction in this manner, the ' 'purposeful availment' requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of 'random,' 'fortuitous,' or 'attenuated' contacts....' (Id. at p. 475, 105 S.Ct. 2174.) Instead, the defendant will only be subject to personal jurisdiction if ' '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.' ' (Pavlovich, at p. 269, 127 Cal.Rptr.2d 329, 58 P.3d 2, quoting World–Wide Volkswagen, supra, 444 U.S.

at p. 297, 100 S.Ct. 559.) Snowney, 35 Cal.4th at 1062-1063.

Jacqueline B. v. Rawls Law Group, P.C. (2021) 68 Cal.App.5th 243 sets forth the respective burdens on this motion.

[t]he plaintiff asking the forum state to exert jurisdiction over the out-of-state defendant bears the initial burden of establishing the first two elements by a preponderance of the evidence, and if the plaintiff does so, the out-of-state defendant then bears the burden of convincing the court why the exertion of personal jurisdiction would not comport with fair play and substantial justice. (Pavlovich, at p. 273, 127 Cal.Rptr.2d 329, 58 P.3d 2; Vons, at p. 449, 58 Cal.Rptr.2d 899, 926 P.2d 1085; Bader v. Avon Products, Inc. (2020) 55 Cal.App.5th 186, 192-193, 269 Cal.Rptr.3d 318; see also Zehia v. Superior Court (2020) 45 Cal.App.5th 543, 552, 258 Cal.Rptr.3d 778 (Zehia) [plaintiff may not discharge its initial burden with allegations alone].) Jacqueline B., 68 Cal.App.5th at 253. See also, Burdick, 233 Cal.App.4th at 17.

In its moving papers Lucky Honey submits evidence in the form of declarations from the two co-founders of Lucky Honey, Jennifer Murdock and Daniel Whittelsey who state: Lucky Honey designs, sources and sells grip socks which are used in Pilates and similar exercises; Murdock started Lucky Honey in December 2016; shortly thereafter, Murdock's brother Whittelsey, joined Murdock in the business; Lucky Honey is a New York limited liability company that has only one office which is located in Brooklyn, New York; Murdock and Whittelsey are the only full-time workers at Lucky Honey; they personally handle all aspects of Lucky Honey's business in Brooklyn; Lucky Honey markets and sells its socks through its website (luckyhoney.nyc) and through www.faire.com an online wholesale marketplace; Lucky Honey does little marketing; instead, it mostly responds to inquiries and fulfills orders it receives through its website (luckyhoney.nyc) and through www.faire.com; Lucky Honey has no presence in California; it has no offices, employees, agents, or representatives in California; Lucky Honey does not single-out or target California residents for the sale of its socks; neither Murdock nor Whittelsey has traveled to California for business; Lucky Honey has not entered into any agreements, partnerships or collaborations with Plaintiff; Lucky Honey has not entered into any agreements, partnerships or collaborations with Xponential Fitness LLC ('XPO'); Lucky Honey has not targeted XPO franchisees in California (or anywhere else) for the sale of its socks; neither Murdock nor Whittelsey is aware of any sales by Lucky Honey to any customers in California that use any XPO affiliated names, except for one order (a Club Pilates in Davis, California) for $96 which was processed through www.faire.com; Lucky Honey's other, limited California sales have no connection to XPO or XPO's franchisees; it would be a tremendous hardship on Lucky Honey to have to defend this lawsuit in San Diego, California; both Murdock and Whittelsey reside in New York; Lucky Honey has no facilities in California.

Plaintiff offers no evidence in opposition. Plaintiff raises only argument based on Lucky Honey's evidence. None of the arguments Plaintiff raises supports a finding of specific jurisdiction over Lucky Honey in this case. Plaintiff fails to establish the relevance of records prior to 2022. None of the allegations of the complaint reference any violative conduct by Lucky Honey prior to 2022 and Plaintiff offers no evidence of such conduct. Rather, as pled, the complaint alleges Plaintiff sent Lucky Honey a Calendar No.: Event ID:  TENTATIVE RULINGS

3063286  8 CASE NUMBER: CASE TITLE:  THIRTY THREE THREADS INC VS PACIFIC MANUFACTURING LLC  37-2023-00042062-CU-BT-CTL 'cease-and-deist' letter on February 15, 2023, and that '[d]espite these notices and warnings, Defendants continued to sell socks . . . to XPO franchises' [Cplt. ¶ 20]. Plaintiff also fails to establish how Lucky Honey's sales through its own web site and through www.faire.com support a finding that Lucky Honey purposefully directed its activities at California. Plaintiff argues that www.faire.com is a California-based company, but provides no evidence in support. Even if www.faire.com is a California company, '[d]ue process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the 'random, fortuitous, or attenuated' contacts he makes by interacting with other persons affiliated with the State. Burger King, 471 U.S., at 475, 105 S.Ct. 2174 (internal quotation marks omitted).' Walden v. Fiore (2014) 571 U.S. 277, 286. Plaintiff's arguments based on Lucky Honey sales through websites of other California-based companies (e.g., Simply Workout) fail for the same reasons.

Based on the evidence submitted the court finds Plaintiff fails to meet Plaintiff's burden of demonstrating, by a preponderance of the evidence, that Lucky Honey purposefully availed itself of the privilege of conducting activities in California. The Murdock and Whittelsey declarations establish the absence of any contacts between Lucky Honey and California, other than one sale via www.faire.com. Plaintiff offers no evidence in opposition.

In light of this ruling, the court does not reach the other two requirements of the specific jurisdiction inquiry.

The court orders Lucky Honey to submit a judgment of dismissal within 10 days of this ruling.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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