Judge: Laura A. Seigle, Case: 22STCV20267, Date: 2022-09-15 Tentative Ruling

Case Number: 22STCV20267    Hearing Date: September 15, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTION TO QUASH

            On June 21, 2022, Plaintiff Luz Virginia Perez Nunez filed this action alleging she developed mesothelioma as a result of exposure to asbestos in products from Defendant Avon Products, Inc..  On August 15, 2022, Defendant filed a motion to quash service of summons on the ground that this court lacks personal jurisdiction over it.  

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

Defendant provided evidence that it is incorporated in New York and has its principal place of business in New York.  (Rivera Decl., Ex. C.)  It sells products through independent sales representatives, it had a distribution facilities in California that sent products to various states, there are no Avon retail stores in California, and there could have been a sales center or training center in California.  (Rivera Decl., Ex. G at pp. 25-26, 27, 58.)  Plaintiff lives in Mexico and used talc products when she lived in Mexico.  (Motion at pp. 1-2.)  This evidence establishes California has no general jurisdiction over Avon, and Plaintiff does not argue otherwise.

Defendant argues the evidence also establishes there is no special jurisdiction because Plaintiff’s suit does not arise out of or relate to Avon’s contacts in California and Plaintiff never lived in California.  (Motion at pp. 5-6.)  Defendant argues this case is like Bristol-Myers Squibb Co. v. Superior Court (2017) 137 S.Ct. 1773.  (Motion at p. 6.) 

Plaintiff argues Defendant purposefully availed itself of the benefits of California by having manufacturing and distribution centers in California (Opposition at p. 5), and Plaintiff’s claims arise out of or relate to Defendant’s contacts with California because Plaintiff purchased Avon products in California and via an Avon sales representative located in California.  (Opposition at p. 7; Nunez Decl., ¶¶ 8-9.) 

In Bader v. Avon Products, Inc. (2020) 55 Cal.App.5th 186, the court reversed the grant of Avon’s motion to quash because the use of sales representatives to market and sell the products at issue directly to the decedent established “a sufficient ‘ “affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum Sate and is therefore subject to the State’s regulation.” ’  [Citation.]”  (Bader, supra, 55 Cal.App.5th at p. 200.)  The only difference here is that the decedent in Bader lived in California.  Defendant did not cite law that a plaintiff must live in California for California to have specific jurisdiction over the defendant.  As in Bader, Plaintiff bought the very products at issue from an Avon sales representative when Plaintiff was in California or Plaintiff ordered the products from the Avon sales representative who was in California.

This case is different from Bristol-Myers Squibb because in that case, the plaintiffs “did not allege that they obtained [the product at issue] through California physicians or from any other California source.”  (Bristol-Myers Squibb Co. v. Superior Court, supra, 137 S.Ct. at p. 1778.)  Here, Plaintiff’s claims arise out of the sales in California of the products at issue.

The motion is DENIED.

The moving party is to give notice.