Judge: Laura A. Seigle, Case: 22STCV18682, Date: 2023-05-04 Tentative Ruling
Case Number: 22STCV18682 Hearing Date: May 4, 2023 Dept: 15
[TENTATIVE] ORDER RE MOTION TO QUASH
Plaintiffs Michael Pickard, Ahsha
Pickard, and Sam Adams allege James Pickard developed mesothelioma as a result
of exposure to asbestos. On January 6,
2023, Defendant Gare Incorporated filed a motion to quash service of summons
for lack of personal jurisdiction.
Plaintiffs requested jurisdictional discovery, so at the February 2,
2023 hearing, the court continued the hearing to allow the discovery. The parties thereafter filed supplemental papers.
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.” (Daimler 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.)
Defendant states its
principal place of business and state of incorporation is in Massachusetts. (Motion at p. 6; Alaimo Decl., ¶¶ 4, 5.)
Plaintiffs do not contest that there is
no general jurisdiction over Defendant.
Defendant asserts it
is not subject to specific jurisdiction because Defendant’s activities in
California are not related to Plaintiffs’ exposure claims. (Motion at pp. 13, 14.) The first amended complaint does not specify
the product from Defendant that allegedly exposed James Pickard to asbestos. The preliminary fact sheet states he was
exposed via Defendant’s “Ceramics” in 1964 to 1977. Defendant
argues Plaintiffs cannot prove Defendant sold products in California in the
pertinent 1964 to 1977 time period. Defendant
argues it has no sales records for California between 1964 to 1977 and did not manufacture
products in California. (Alaimo Decl., ¶¶
10, 13.) Apart from a conclusory
declaration, Defendant submitted no evidence of these assertions. Also, the Alaimo declaration does not state
that Gare never sold, distributed, or advertised its products to businesses in
California.
Plaintiffs presents
evidence that Defendant currently sells products in California. (Opposition at p. 5; Alaimo Decl. ¶ 12.) Defendant distributes products through a California
warehouse. (Opposition at p. 5; Cook Decl.,
Ex. 2.) In their supplemental opposition
filed after jurisdictional discovery, Plaintiffs submitted the following evidence:
1. An excerpt from a 2013 deposition of David
Charles Alaimo stating Defendant distributed slip throughout the nation from
1985 to 2013, and before 1985, Defendant used trucking companies to ship to
various states. (Cook Decl., Ex. 5 at pp.
165-166.) This excerpt does not state
Defendant shipped or sold its products to or in California before 1985.
2. An excerpt from a December 1978 Ceramics
Monthly magazine stating the magazine had a west coast advertising
representative in North Hollywood and containing Defendant’s ad for kilns. (Cook Decl., Ex. 6 at pp. 5, 89.) It can be inferred from this exhibit that the
magazine circulated in California and that Defendant was therefore advertising
in California in 1978.
3. An excerpt from an April 1972 Ceramics
Monthly magazine containing Defendant’s ad for kilns. (Cook Decl., Ex. 7 at p. 38.)
4. An excerpt from the April 1972 Ceramics
Monthly table of contents. (Cook Decl.,
Ex. 8.)
5. Excerpts from a September 1985 edition of
Ceramic Scope containing a list of Defendant’s distributors in California. (Cook Decl., Ex. 9 at p. 40.) This exhibit shows Defendant distributed
products in California in 1985.
This supplemental evidence provides support for the
conclusion that by 1978, Defendant was advertising in California. Assuming that is sufficient to show Defendant
purposefully availed
itself of the benefits of doing business in California in 1964 to 1977, the
evidence does not establish that Plaintiffs’ claims arise from or relate to
Defendant’s activities in California during that time period. Plaintiffs claim James Pickard was exposed to
asbestos from Defendant’s ceramics. The
April 1972 and December 1978 advertisements shows Defendant sold kilns during
that time period, and the deposition testimony is evidence Defendant
distributed slip in California after 1985.
But none of the evidence shows Defendant made sold, distributed, or
shipped ceramics in or to California from 1964 to 1977.
Because Plaintiffs did not provide specific evidentiary facts showing
the alleged exposure to asbestos-containing ceramics is related to or arises
out of Defendant’s activities in California from 1964 to 1977, the motion is
GRANTED. The complaint against Gare
Incorporated is DISMISSSED without prejudice pursuant to Code of Civil
Procedure section 581, subdivision (h).
The moving party is to give notice.