Judge: Laura A. Seigle, Case: 20STCV45382, Date: 2023-07-21 Tentative Ruling

Case Number: 20STCV45382    Hearing Date: September 14, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTIONS TO QUASH (ZIM)

            Plaintiffs Ricky Lynn Feigner, Ethelma Feigner, and Tammy Stanaland allege Gerald Feigner developed mesothelioma as a result of exposure to asbestos on a ship owned or operated by Defendant Zim American Integrated Shipping Services Company, LLC.  Defendant filed a motion to quash service of summons for lack of personal jurisdiction.  

A defendant may move to quash service of summons on the ground of lack of jurisdiction.  (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.)  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.)  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.)

A defendant is subject to a state’s general jurisdiction if its contacts “are so continuance and systematic as to render [it] essentially at home in the forum State.”  (Saimler AG v. Bauman (2014) 571 U.S. 117, 127.)  A nonresident defendant may be subject to the specific jurisdiction of the forum “if the defendant has purposefully availed himself or herself of forum benefits [citation], and the ‘controversy is related to or “arises out of” a defendant’s contacts with the forum.’  [Citations.]”  (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446.)  This test does not require a “causal relationship between the defendant’s in-state activity and the litigation.”  (Ford Motor Co. v. Montana Eighth Judicial District Court (2021) 141 S.Ct. 1017, 1026.)  The “arise out” of standard “asks about causation,” but “relate to” does not.  (Ibid.)  “[W]hen a corporation has ‘continuously and deliberately exploited [a State’s] market, it must reasonably anticipate being haled into [that State’s] court[s]’ to defend actions ‘based on’ products causing injury there.”  (Id. at p. 1027.) 

Defendant provided evidence that it was originally incorporated in New York, has its principle place of business and headquarters in Virginia, and has various offices including one in California until a few months ago.  (Newcomb Decl., ¶¶ 3, 4.)  Thus Defendant has shown California does not have general jurisdiction over it.

Defendant argues it is not subject to California’s specific jurisdiction because Plaintiffs claims do not arise out of or relate to Defendant’s California contacts.  (Motion at p. 7.)  Defendant contends it did not own, lease, charter or control any ships that called at California ports.  (Motion at p. 8.) 

The issue is whether Feigner was exposed to asbestos in California on any ship owned or controlled by Defendant when he was working as a longshoreman in 1955 through 1990.  Plaintiffs argue that Defendant’s activities in California “are ‘related to’ Plaintiffs’ claims that Mr. Feigner sustained fatal injury by working on Zim ships in Los Angeles ports, that ZIM American profited from managing, controlling, and handling those ships, their equipment, and their cargo.”  (Opposition at p. 7.)  Plaintiffs’ evidence is that Feigner was a longshoreman, he unloaded ships, he does not know if the ships shipped asbestos, and Zim had ships he worked on.  (Seitz Decl., Ex. 1 at pp. 25-26, 60-61.)  (Plaintiffs also cite their own unverified interrogatory responses, which are inadmissible.)  This evidence does not support the conclusion that Plaintiff was exposed to asbestos on ships owned or controlled by Defendant.

Plaintiffs ask for jurisdictional discovery.  A plaintiff must show a basis in fact for jurisdictional discovery, some reason to conclude discovery is likely to produce evidence of California contacts sufficient for personal jurisdiction.  (In re Automobile Antitrust Cases (2005) 136 Cal.App.4th 100, 127 [“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”].)  When a plaintiff is not able to make an offer of proof of the existence of “additional relevant jurisdictional evidence,” a court does not abuse its discretion in denying jurisdictional discovery.  (Ibid.)  Here Plaintiffs made little showing of any basis to conclude discovery is likely to produce evidence that Plaintiffs’ claims arise out of or relate to Defendant’s contacts with California. 

The motion is GRANTED and the complaint against Defendant Zim American Integrated Shipping Services Company, LLC is DISMISSSED without prejudice pursuant to Code of Civil Procedure section 581, subdivision (h).

The moving party is to give notice.