Judge: Laura A. Seigle, Case: 22STCV02413, Date: 2022-10-04 Tentative Ruling

Case Number: 22STCV02413    Hearing Date: October 4, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTIONS TO QUASH

            Plaintiffs June Wilbanks and Richard Wilbanks filed this action alleging June Wilbanks developed mesothelioma as a result of exposure to asbestos.  Defendants Brenntag Specialties, LLC and Brenntag North America, Inc. (“Defendants”) filed motions to quash service of summons on them for lack of personal jurisdiction.  The hearing date on the motions was continued twice so that Plaintiffs could conduct discovery.

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.)  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 defendant actions ‘based on’ products causing injury there.”  (Id. at p. 1027.) 

            Plaintiffs do not contest that there is no general jurisdiction over Defendants.

            Defendants contend California has no specific jurisdiction over them because June Wilbanks’ injuries do not arise from or relate to their conduct in California.  Defendants argue Brenntag Specialties, Inc. was incorporated in 2003 and has no record of making any sales of talc for the manufacture of Gold Bond powder.  (Owens Decl., ¶ 4.)  Defendants argue Avon stopped making talc-based powders in 2002, before Brenntag Specialties, Inc. was incorporated.  (Motion at p. 4.) 

            Plaintiffs contend June Wilbanks “was exposed to asbestos-containing talc through her use of Avon cosmetic products in California,” and “Plaintiffs allege that the Brenntag entities supplied talc to Avon for use in its products.”  (Opposition at p. 5.)  However Plaintiffs present no evidence that Defendants supplied talc to Avon.  An allegation is not enough.

            Plaintiffs also contend Defendants supplied talc for a Clubman product made in California.  (Opposition at pp. 3, 5.)  But Plaintiffs do not allege June Wilbanks used a Clubman product.  Instead, in their Preliminary Fact Sheet, Plaintiffs state that June Wilbanks used Avon products including Timeless and Rare Gold, Gold Bond talcum powder, Cashmere Bouquet talcum powder, Kirkland talcum powder, and Corn Silk talcum powder.  Because there is no allegation or evidence that June Wilbanks used a Clubman product, Defendants’ sales of talc for a Clubman product cannot provide the basis for personal jurisdiction.  This is not like the situation in Ford where the plaintiff alleged that Ford marketed its cars in the state and then a Ford car injured the plaintiff in the state.  (Ford, supra, 141 S.Ct. at pp. 1029-1030.)  Plaintiffs have not presented evidence that Defendants’ talc was in Avon products.

            Finally, Plaintiffs argue Defendants are “successors-in-interest to different aspects” of Whittaker, Clark & Daniels’ “talc-related business.”  (Opposition at p. 7.)  Plaintiffs present no evidence that Defendants assumed liability for Whittaker’s talc-related business generally or for Whittaker’s prior sales of talc to Avon more specifically.  The only evidence is that Brenntag Specialties, Inc. under a different name “purchased certain assets and assumed certain liabilities of Whittaker, Clark & Daniels.”  (Plaintiffs’ Index, Ex. C at p. 25.)  Again, allegations are not enough.

            Plaintiffs state they want additional time to conduct discovery.  The hearing date has already been continued twice for a total three and a half months.  Plaintiffs do not identify any specific discovery they have not been able to conduct in the four and a half months since Defendants filed their motions.  Therefore, the request for a third continuance is denied.

            The motions are GRANTED.  The complaint against Brenntag Specialties, LLC and Brenntag North America, Inc. is DISMISSSED without prejudice pursuant to Code of Civil Procedure section 581, subdivision (h).

            The moving parties are to give notice.