Judge Kerry Bensinger, Case Number: 24STCV19635, Date: 2025-02-24 Tentative Ruling

SPECIALLY APPEARING DEFENDANT HORIZON HOBBY, LLC’S MOTION TO QUASH SERVICE FOR LACK OF PERSONAL JURISDICTION

SPECIALLY APPEARING DEFENDANT HORIZON HOBBY, LLC’S MOTION FOR JUDICIAL NOTICE

Plaintiff Ruth Martin (Plaintiff or Martin) brings this action against defendant Horizon Hobby LLC (Defendant or Horizon) for violation of the California Invasion of Privacy Act (CIPA). In her Complaint, Martin alleges that Horizon operates “www.horiznhobby.com” (the Website). Plaintiff visited the Website and conducted a brief conversation through the Website chat feature. Unbeknownst to Website visitors, including Plaintiff, Horizon pays a third-party spyware company to eavesdrop on and store transcripts of the private conversations of everyone who communicates through the chat feature on the Website. The third-party uses the record of Website users’ interactions with the Website chat feature for data analytics, marketing, and advertising to consumers. Defendant did not obtain Plaintiff’s consent nor inform Plaintiff that Defendant was allowing a third party to intercept and eavesdrop on conversations or that the third party provided data from transcripts to third parties like Meta. Defendant is a Delaware corporation.

On August 6, 2024, Plaintiff commenced this action against Horizon alleging a single cause of action for violation of CIPA.

On August 26, 2024, Plaintiff filed a Proof of Service of Summons showing Defendant was served with the summons and complaint by personal service on August 9, 2024.

Before the court are three matters filed on behalf of Horizon: (1) Motion to Quash Service for Lack of Personal Jurisdiction (Motion to Quash); (2) Motion for Judicial Notice; and (3) Application to Appear Pro Hac Vice. The Motion to Quash and Motion for Judicial Notice were filed on October 21, 2024. Horizon seeks judicial notice of rulings issued in federal district court and Los Angeles Superior Court in support of its Motion to Quash. The pro hac vice application was filed on February 13, 2025.

On December 3, 2024, Plaintiff filed oppositions to Horizon’s Motion to Quash and Motion for Judicial Notice, and alternatively requests leave to conduct jurisdictional discovery.

As a threshold issue, the court notes there is no rule authorizing a motion for judicial notice in the trial court. (Cf. Cal. R. Ct., rule 8.252(a) [setting forth process for obtaining judicial notice from a reviewing court].) Accordingly, Horizon’s Motion for Judicial Notice is construed as a request for judicial notice in connection to its Motion to Quash.

The application to appear pro hac vice, which is unopposed, is addressed in Section III.

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.)¿

1. Heiting v. Marriott Int’l, Inc. (C.D. Cal. Aug. 5, 2024) Case No. 2:23-CV-10822-JLS-MAA, 2024 WL3751276;

2. Sanchez v. Marriott International, Inc. (L.A. Super. Oct. 11, 2024) Case No. 24STCV11227, 2024 WL4484518 (Hammock, J.) Minute Order on Motion to Quash Service of Summons;

3. Levings v. Tempur Sealy International, Inc. (L.A. Super. Aug. 15, 2024) Case No. 24STCV01612, 2024 WL 4462935 (Crowley, J.) Minute Order on Specially Appearing Defendant Tempur Sealy International, Inc.’s Motion to Quash Service of Summons;

4. Palacios v. Lolliprops, Inc. (L.A. Super. July 2, 2024) Case No. 24STCV01606, 2024 WL4462936 (Kalra, J.), Ruling on Motion to Dismiss and Quash Service of Summons; and

5. Licea v. Rocket Mortgage, LLC (L.A. Super. June 3, 2024) Case No. 24STCV02041, 2024 WL 4468441 (Iwasaki, J.), Minute Order on Motion to Quash Service of Summons.

1. Minute Order filed on September 11, 2023 in Hernandez v. Datatracks, Inc., No. 23STCV16470 (Cal. Super. Ct. L.A. Cty. Sept. 11, 2023) (Stern, J.);

2. Minute Order filed on February 9, 2024 in Licea v. DAC Group/New York, Inc., No. 23STCV15816 (Cal. Super. Ct. L.A. Cty. Feb. 9, 2024) (Duffy-Lewis, J.);

3. Minute Order filed on May 1, 2024 in Valenzuela v. Livechat, Inc., No. 30-2023-01333056-CU-CR-NJC (Cal. Super. Ct. O.C. Cty. May 1, 2025) (Steiner, J.);

4. Minute Order filed on June 14, 2024 in Byars v. Bio Clarity LLC, No. 24STCV01349 (Cal. Super. Ct. L.A. Cty. June 14, 2024) (Traber, J.);

7. Minute Order filed on October 17, 2023 in Diaz v. Ringlogix, LLC, No. 23STCV14805 (Cal. Super. Ct. L.A. Cty. Oct. 17, 2023) (Beaudet, J.).

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 parties’ requests for judicial notice are 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 the court lacks general personal jurisdiction over Horizon. Horizon is a Delaware corporation with its principal place of business in Illinois. (Haley Decl., ¶ 3.) Accordingly, the sole issue to be decided is whether the court has specific personal jurisdiction over Horizon. Horizon asserts that its website does not specifically target the forum of California. (Haley Decl., ¶¶ 7, 9.) Plaintiff submits evidence which she contends shows that Horizon’s Website is highly interactive and commercial.

“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).)

Horizon argues the court lacks personal jurisdiction over Horizon because Horizon did not purposefully avail itself of California as a forum. Plaintiff contends otherwise. As to the first prong, Plaintiff argues Horizon purposefully availed or purposefully directed its activity to California because the website is highly interactive and commercial in nature. Alternatively, Plaintiff requests leave to conduct jurisdictional discovery should the court grant the Motion to Quash.

In Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal.App.4th 1254, a California plaintiff sued a Florida defendant over the sale of a vehicle. (Id. at p. 1257.) The court found that a Defendant’s website that merely advertised vehicle and presumably provided an online application, was not subject to specific jurisdiction in California, in part, because there was no evidence the website targeted California residents. Indeed, “ ‘[t]he purposeful availment inquiry…focuses on the defendant's intentionality. [Citation.] 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. [Citation.] Thus, 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 [citatons], or of the “unilateral activity of another party or a third person.” [Citation.]’ [Citation.]” (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269.)

The Court of Appeal in Thurston v. Fairfield Collectibles of Georgia, LLC (2020) 53 Cal.App.5th 1231 (Thurston), discussed internet websites and purposeful availment:

“To determine whether a Web site is sufficient to establish purposeful availment, we first look to [a] sliding scale analysis .... [Citation.] ‘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.’ [Citation.]” (Snowney v. Harrah’s Entertainment, Inc., supra, 35 Cal.4th at p. 1063...)

“ ‘Some courts have held that sufficient minimum contacts are established, and the defendant is “doing business” over the Internet, where the defendant's website is capable of accepting and does accept purchase orders from residents of the forum state.’ [Citation.] Other courts have suggested that' “something more” ‘ is necessary, such as ‘ “deliberate action” within the forum state in the form of transactions between the defendant and residents of the forum or conduct of the defendant purposefully directed at residents of the forum state.’ [Citations.] Other courts ‘have criticized … emphasis on website interactivity’ [citation] and focus instead on ‘traditional due process principles' [citation], asking whether the site expressly targets ‘residents of the forum state’ [citation]. According to these courts, “Website interactivity is important only insofar as it reflects commercial activity, and then only insofar as that commercial activity demonstrates purposeful targeting of residents of the forum state or purposeful availment of the benefits or privileges of the forum state.' [Citations.]”

The Court of Appeal then went on to summarize California case law, stating that “making a substantial number of sales of goods or services to California residents via one's own website constitutes purposeful availment.” (Id. at p. 40.) Sales must be substantial; they are not enough if they are “random, isolated, or fortuitous.” (Id.)

Here, Plaintiff has not met her burden showing that Horizon purposefully availed itself of California as a forum by merely operating the Website. Plaintiff presents no evidence demonstrating that Horizon targeted or made a substantial number of its sales to California residents. Indeed, Plaintiff claims she interacted with the Website. (See Complaint, ¶ 4.) There is no allegation of any intentional interaction by Horizon. The only claim is that Horizon’s Website violates California law. (Ibid.) This, however, is insufficient to exercise personal jurisdiction.

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 limited 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).) As alleged here, there is no sale in this case but a mere interaction with the Website initiated by Plaintiff herself. Likewise, Plaintiff failed to present any evidence, credible or otherwise, that jurisdictional facts sought through discovery are likely to substantiate Plaintiff’s claim that Defendant purposefully availed themselves to California jurisdiction.[1]

Specially Appearing Defendant Horizon Hobby, LLC’s Motion to Quash is GRANTED. The Complaint, filed on August 7, 2024, is DISMISSED WITHOUT PREJUDICE.

On February 11, 2025, Applicant, Abigail L. Howd, filed this application to appear pro hac vice on behalf of Defendant, Horizon Hobby, LLC, in this action.

California Rules of Court, rule 9.40 provides that an attorney in good standing in another jurisdiction may apply to appear as counsel pro hac vice in the State of California by filing a verified application together with proof of service by mail of a copy of the application and notice of hearing on all parties who have appeared in the case and on the State Bar of California at its San Francisco office, with payment of a $50.00 fee, so long as that attorney is not a resident of the State of California, and is not regularly engaged in substantial business, professional, or other activities in the State of California.¿ (Cal. R. Ct., rule 9.40.)¿¿

The application must state: (1) the applicant’s residence and office addresses; (2) the courts to which the applicant has been admitted to practice and the dates of admission; (3) that the applicant is a member of good standing in those courts; (4) that the applicant is not currently suspended or disbarred in any court; (5) the title of each court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (6) the name, address, and telephone number of the active member of the State Bar of California who is attorney of record in the local action.¿ (Cal. R. Ct., rule 9.40(d).)¿¿

Upon review, the court finds the application complies with California Rules of Court, rule 9.40.¿¿¿

Accordingly, the unopposed application is GRANTED.¿ It is ordered that Abigail L. Howd be admitted to appear as counsel pro hac vice for the purpose of representing Defendant Horizon Hobby, LLC in this action.¿ Applicant shall be subject to all applicable rules of this Court.¿

1. Specially Appearing Defendant Horizon Hobby, LLC’s Motion to Quash is Granted. The Complaint, filed on August 7, 2024, is Dismissed without Prejudice. Plaintiff’s request for jurisdictional discovery is Denied.

2. The unopposed application to appear pro hac vice is Granted.¿ It is ordered that Abigail L. Howd be admitted to appear as counsel pro hac vice for the purpose of representing Defendant Horizon Hobby, LLC in this action.¿ Applicant shall be subject to all applicable rules of this Court.¿

Kerry Bensinger

Judge of the Superior Court

[1] Even if the court were mistaken with respect to the first prong, exercising personal jurisdiction in this case would violate the notion of fair play and substantial justice. Plaintiff seeks to enforce a California privacy law on a Delaware corporation’s website because she was able to access it from California. There is no evidence Defendant—who sells radio control products and accessories— anticipated being haled into court in California because of Plaintiff’s internet browsing.