Judge: Laura A. Seigle, Case: 22STCV32540, Date: 2022-12-07 Tentative Ruling

Case Number: 22STCV32540    Hearing Date: December 7, 2022    Dept: 15

[TENTATIVE] ORDER RE MOTIONS TO QUASH

            Plaintiffs Elaine Adelia Hickey Herman and Jacob Russell Herman, Sr. filed this action alleging Elaine Herman 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. 

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 assert there is no evidence that Plaintiffs’ injuries were caused by any product distribute or sold by Defendants in California and no connection to California.  (Motions at p. 3.) 

            Plaintiffs allege Defendant Brenntag Specialties LLC supplied asbestos-containing talc used to make the talcum powder products Herman used.  (Opposition at p. 2.)  Plaintiffs submitted no evidence in support of this assertion.  Plaintiffs do not even identify the products Herman used that allegedly contained Brenntag Specialties LLC’s talc.  Plaintiffs also assert that Defendant Brenntag Specialties LLC is “the admitted successor-in-interest to Brenntag Specialties, Inc., Mineral Pigment Solutions, Inc.; and Whittaker, Clark & Daniel, BNA.  (Opposition at p. 3.)  Plaintiffs cite no evidence of this.  In fact, Defendant Brenntag Specialties LLC contends that it was incorrectly sued as successor-in-interest to Whittaker.  (See Motion caption page.)  Plaintiffs present no evidence that Defendant Brenntag Specialties, LLC assumed liability for Whittaker’s talc-related business generally or for Whittaker’s prior sales of talc to whomever made the unspecified products at issue here. 

            Defendant Brenntag North America, Inc. also argues there is no evidence Plaintiffs’ injuries were caused by any product manufactured, distributed or sold by Brenntag North America, Inc. or that it has any connection to California related to this case.  (Motion at p. 3.) 

Plaintiffs argue they provided prima facie evidence that Brenntag North America, Inc. supplied asbestos-containing talc that injured Herman.  (Opposition at p. 3.)  Plaintiffs provided no such evidence with their opposition and did not even specify the talcum products Herman used for which Brenntag North America, Inc. allegedly provided the talc.  Plaintiffs also allege that Brenntag North America, Inc. is the successor-in-interest to Brenntag Specialties, Inc., Mineral Pigment Solutions, Inc.; and Whittaker, Clark & Daniel, BNA, but provides no evidence of that.  (Opposition at p. 3.)  In fact, Defendant Brenntag North America, Inc. contends that it was incorrectly sued as successor-in -interest to Mineral Pigment Solutions, Inc. and Whittaker.  (See Motion caption page.)

            Plaintiffs failed to satisfy their initial burden of demonstrating facts justifying the exercise of jurisdiction.  Plaintiffs ask for jurisdictional discovery, but having failed to present any evidence that Defendants sold any talc that was used in any product at issue here, and indeed having failed even to identify the talcum powder specific products at issue, Plaintiffs have not shown that jurisdictional discovery will likely lead to evidence establishing jurisdiction.

Therefore the motions are GRANTED, and 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.