Judge Kerry Bensinger, Case Number: 24STCV12715, Date: 2024-08-26 Tentative Ruling

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

SPECIALLY APPEARING DEFENDANT HILTON WORLDWIDE HOLDINGS INC.’S MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION

Plaintiff Jose Licea (Plaintiff or Licea) brings this action against Defendant Hilton Worldwide Holdings Inc. (Defendant or Hilton) for violation of the California Invasion of Privacy Act (CIPA). Licea alleges that Hilton operates the website “www.grandwailea.com” which provides information about the Grand Wailea, a resort located in Hawaii. Unbeknownst to website visitors, Hilton deploys spyware on the website which accesses visitors’ devices and installs tracking spyware without obtaining consent. The tracking spyware allows Hilton to monitor visitors’ online habits after leaving the website. Licea further alleges that Hilton accessed Licea’s device after Licea visited the website.

On July 11, 2024, Plaintiff filed a Proof of Service indicating that Defendant was served with the summons and complaint by personal service on May 28, 2024.

Hilton now moves to quash service of summons on the grounds that it does not own or operate hotels in California, is not registered to do business in California, and does not operate the website.

A defendant may move to quash service of summons on the ground of lack of jurisdiction of the court over him or her.¿ (Code Civ. Proc., § 418.10, subd. (a)(1).)¿ The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10.¿ (Code Civ. Proc., § 581, subd. (h).)¿¿¿

“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.”¿ (Code Civ. Proc., § 410.10.)¿ “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’” (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472 (Burger King).)¿ A state court may not exercise personal jurisdiction over a party under circumstances that would offend “traditional notions of fair play and substantial justice.”¿ (Asahi Metal Industry Co., Ltd., v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113.)¿¿¿

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. (Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 553 (Jayone Foods).)¿ Once facts showing minimum contacts with the forum state are established, the defendant has the burden to demonstrate that the exercise of jurisdiction would be unreasonable.¿ (Ibid.)¿ “The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. [Citation.]¿ The plaintiff cannot rely on allegations in an unverified complaint or vague and conclusory assertions of ultimate facts.¿ [Citation.]”¿ (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 222.)¿

Plaintiff requests judicial notice of Minute Orders filed (1) on September 11, 2023 in Hernandez v. Datatracks, Inc., No. 23STCV16470, (2) on February 9, 2024 in Licea v. DAC Group/New York, Inc., No. 23STCV15816, (3) on May 1, 2024 in Valenzuela v. Livechat, Inc., No. 30-2023-01333056-CU-CR-NJC, and (4) on June 14, 2024 in Byars v. Bio Clarity LLC, No. 24STCV01349. Defendant opposes the request.

The court may take judicial notice of records of any court of record of the United States. (Evid. Code § 452(d)(2).) The court “shall” take judicial notice of any matter specified in Section 452 if a party requests it, adequate notice is given, and the court is furnished with sufficient information to enable it to take judicial notice of the matter. (Evid. Code § 453.)

Accordingly, the request for judicial notice is GRANTED. However, the court does not take judicial notice of the truth of the matters within the documents. (See C.R. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 110.)

There is no dispute that the court lacks general personal jurisdiction over Hilton. Hilton is a Delaware corporation with its principal place of business in Virginia. (See Smith Decl., ¶ 3.) The issue to be decided is whether the court has specific personal jurisdiction over Hilton because of the interactive and commercial nature of the website.

“In contrast to general jurisdiction, specific jurisdiction covers defendants less intimately connected with a State, but only as to a narrower class of claims. The contacts needed for this kind of jurisdiction often go by the name ‘purposeful availment. For a state to have specific jurisdiction, the defendant must take some act by which it purposefully avails itself of the privilege of conducting activities within the forum State. The contacts must be the defendant's own choice and not random, isolated, or fortuitous. They must show that the defendant deliberately ‘reached out beyond’ its home—by, for example, exploiting a market in the forum State or entering a contractual relationship centered there. Yet even then—because the defendant is not ‘at home’—the forum State may exercise jurisdiction in only certain cases. The plaintiff's claims must arise out of or relate to the defendant's contacts with the forum.” (Preciado v. Freightliner Custom Chassis Corporation (2023) 87 Cal.App.5th 964, 978 (cleaned up).) “Thus, a two-part showing by the plaintiff is required to establish specific jurisdiction: (1) the defendant has ‘purposefully directed’ his activities at residents of the forum, ... and (2) the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” (Id.) If the plaintiff satisfies his burden, the burden shifts to the defendant to show the exercise of jurisdiction would be unreasonable, i.e., offend the traditional notions of fair play and substantial justice under the third prong. (Strasner v. Touchstone Wireless Repair & Logistics LP (2016) 5 Cal.App.5th 215, 226 (Strasner).)

“The purposeful availment inquiry focuses on the defendant's intentionality. 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. Thus, purposeful availment occurs where a nonresident defendant purposefully directs its activities at residents of the forum, purposefully derives benefit from its activities in the forum, creates a substantial connection with the forum, deliberately has engaged in significant activities within the forum, or has created continuing obligations between itself and residents of the forum. (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062-63 (cleaned up).)

Hilton attacks each prong of the jurisdictional inquiry. Hilton argues the court lacks specific personal jurisdiction because (1) the website does not target California visitors, (2) Plaintiff’s alleged injury is not connected to Hilton’s activity in California, (3) Hilton does not operate the website, and (4) it is unreasonable to require Hilton to defend itself in California.

Plaintiff contends otherwise. As to the first prong, Plaintiff argues that Hilton has purposefully availed or purposefully directed its activity to California because the website is highly interactive and commercial in nature.

In support, Plaintiff cites Zippo Mfg. Co. v. Zippo Dot Com, Inc. (W.D. Pa. 1997) 952 F.Supp. 1119 (Zippo) which sets forth a sliding-scale approach to determine whether a website is sufficient to establish purposeful availment. This approach was adopted by the California Supreme Court in Pavlovich v. Superior Court (2002) 29 Cal.4th 262 (Pavlovich). The Zippo court described the sliding-scale as follows:

“At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. [Citation.] At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. [Citation.] The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.”

Plaintiff locates Hilton’s website in the middle ground and submits screenshots of rooms and suites available for reservation at the Grand Wailea to support his characterization of the website as interactive and commercial. (See Ferrell Decl., Ex. 2.)

The court is not persuaded. Plaintiff’s evidentiary showing sheds little to no light on the “level of interactivity” and “commercial nature of the exchange of information” that occurs on the website. More importantly, Plaintiff misses a key aspect of the purposeful availment inquiry: direction of activities at the forum. By Plaintiff’s logic, simply maintaining a website that has interactive features and allows a website visitor (who could reside anywhere) to reserve a room at the Grand Wailea is sufficient to establish specific jurisdiction in this forum. It does not. (See, e.g., Elliot v. Cessna Aircraft Co. (C.D. Cal. May 25, 2021) 2021 WL 2153820, at *3 [“[T]he fact that Defendant maintains an interactive website that reaches potential customers in California does not establish specific jurisdiction”]; MGA Ent., Inc. v. Cabo Concepts Ltd. (C.D. Cal. June 7, 2021) 2021 WL 4733784, at *5 [quoting DFSB Kollective v. Bourne (N.D. Cal. 2012) 897 F.Supp.2d 871, 881 (“If the defendant merely operates a website, even a highly interactive website, that is accessible from, but does not target, the forum state, then the defendant may not be haled into court in that state without offending the Constitution.”); Fidrych v. Marriott Int’l, Inc. (4th Cir. 2020) 952 F.3d 124, 142 [“[I]f we attach too much significance on the mere fact of interactivity, we risk losing sight of the key issue in a specific jurisdiction case—whether the defendant has purposefully directed [its] activities at residents of the forum.”].)

Perhaps aware there is no evidence of purposeful direction at this forum, Plaintiff cites Herbal Brands, Inc. v. Photoplaza, Inc. (9th Cir. 2023) 72 F.4th 1085 (Herbal Brands) for the proposition that the Zippo test “ignores where a state-specific advertisement to website users located in a particular state exists or not.” (Opp., p: 10:15-16.) Herbal Brands has no application here. The Ninth Circuit cabined its holding in Herbal Brands to answer “only the narrow question whether a defendant’s sale of a physical product to a consumer in the forum state via an interactive website constitutes conduct expressly aimed at a forum.” (Herbal Brands, at p. 1095 (emphasis added).) There is no “physical product” in this case.

Plaintiff next points to “California-specific” legal compliance notices on the website to show that Hilton is aware its website visitors are Californians. (See Ferrell Decl., Ex. 5.) Citing Will Co., Ltd. v. Lee (9th Cir. 2022) 47 F.4th 917, 926 and Quigley v. Guvera IP Pty. Ltd. (N.D. Cal. Dec. 20, 2010) 2010 WL 5300867 (Quigley), Plaintiff argues the legal compliance notices are evidence of Hilton’s subjective intent to target California. But something more is required than simply posting forum-specific legal compliance notices. (See Voodoo SAS v. SayGames LLC (N.D. Cal. July 7, 2020) 2020 WL 3791657, at *5 (“[T]he Court is not persuaded that the references to California law in SayGames’ privacy policy and terms of use suggest express aiming at California.”); Cole-Parmer Instrument Co. LLC v. Pro. Lab’ys, Inc. (N.D. Cal. July 20, 2021) 2021 WL 3053201, at *6 (quotation omitted) (“[A]s courts in this district have recognized, compliance with California’s privacy policy does not by itself demonstrate that Defendant intentionally targeted consumers in California.”); Handsome Music, LLC v. Etoro USA LLC (C.D. Cal. Dec. 17, 2020, No. LACV2008059VAPJCX) 2020 WL 8455111, at *9 (“The Court is not persuaded Defendant's California-specific privacy notice alone demonstrates Defendant’s express aiming at California.”).)

Quigley illustrates the point. In Quigley, the district court found that, in addition to posting California-specific legal compliance, the defendant “us[ed] a girl from California as an example to explain the payment model” on the website. (Quigley, at *4.) The Quigley court concluded from these facts that the defendant intentionally targeted consumers in California. (See id.)[1] In this case, there are no similar facts suggesting targeting of California residents. In fact, Hilton’s privacy policy includes references to twenty-six other jurisdictions within the United and abroad. (See Ferrell Decl., Ex. 5.)

Plaintiff, having not satisfied the first prong of the jurisdictional inquiry, does not meet his initial burden. This point is further underscored by Hilton’s averments that it does not own or operate the subject website.[2] (See Smith Decl., ¶ 6.) The court does not reach the second prong of the analysis. Hilton is entitled to an order quashing service of the summons.

In the event the court is inclined to grant Hilton’s motion, Plaintiff requests an opportunity to conduct jurisdictional discovery. Although a plaintiff attempting to assert jurisdiction over a nonresident defendant is generally entitled to an opportunity to conduct discovery of the jurisdictional facts necessary to sustain its burden of proof (see Mihlon v. Sup. Ct. (1985) 169 Cal.App.3d 703, 710), “the plaintiff should demonstrate that discovery is likely to lead to the production of evidence of facts establishing jurisdiction.” (In re Auto. Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 127.) Here, granting a request to conduct jurisdictional discovery lacks foundation.

Plaintiff’s request for a continuance to conduct jurisdictional discovery is DENIED.

Specially Appearing Defendant Hilton Worldwide Holdings, Inc.’s Motion to Quash Service of Summons is GRANTED.

Kerry Bensinger

Judge of the Superior Court

[1] The plaintiff in Quigley also provided far more evidence of the interactive nature of the website at issue in that case.

[2] Plaintiff does not offer any evidence to dispute this claim. Instead, Plaintiff argues that the court should disregard Hilton’s lack-of-ownership argument because it is a “merits” issue which should not be considered in determining jurisdiction. Plaintiff is mistaken. “Because the specific jurisdiction analysis requires an examination of the defendant’s case-specific conduct, inevitably some ‘facts relevant to jurisdiction may also bear on the merits of the complaint.’” (LG Chem., LTD v. Superior Ct. (2022) 80 Cal.App.5th 348, 373 (quotation omitted).)