Judge: Laura A. Seigle, Case: 23STCV00446, Date: 2023-05-04 Tentative Ruling

Case Number: 23STCV00446    Hearing Date: May 4, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION TO QUASH

On January 9, 2023, Plaintiff Penelope Baker filed this action alleging Plaintiff developed mesothelioma as a result of exposure to asbestos.  On February 24, 2023, Defendant Kewaunee Scientific Corporation filed a motion to quash for lack of personal jurisdiction.

Plaintiff’s Objection No. 1 is sustained.  Plaintiff’s Objection Nos. 2 and 3 are overruled.

Defendant’s Objection Nos.  1, 2, 4, 5, 6, and 9 are overruled.  Nos. 3, 7, 8, 10 and 11 are sustained.

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 is incorporated in Delaware and has its principal place of business is in North Carolina.  (Hull Decl. at ¶ 3.)  Previously it was incorporated in Michigan and had its principal place of business in Michigan.  (Ibid.)  Plaintiffs submitted no evidence Defendant is incorporated or has its principal place of business in California.  Therefore, Plaintiffs did not demonstrate facts supporting a conclusion of general jurisdiction.

Regarding specific jurisdiction, Defendant argues Plaintiff cannot establish the connection between Plaintiff’s causes of action and Defendant’s activities in California because the complaint does not allege any activity by Defendant in California. (Motion at p. 6.)  The complaint is vague.  It does not mention Defendant apart from the caption and a list of defendants.  It does not identify the product from Defendant that supposedly exposed Plaintiff to asbestos.  The preliminary fact sheet states Defendant’s laboratory products including “gloves, mittens, tongs, pads, boards, wire screens, fume hoods, chemstone countertops, and furnaces” exposed Plaintiff to asbestos while she was in college in Pomona in approximately 1985 to 1987. 

In her opposition, Plaintiff claims Defendant made and sold fume hoods that exposed her to asbestos in California from July 1985 through June 1989.  (Opposition at p. 2.)  Plaintiff asserts that Defendant was an exclusive supplier of fume hoods to Fisher Scientific, which were sold under the Fisher Scientific brand name.  (Opposition at p. 3; Index, Exs. 2, 4.)  In support of these contentions, Plaintiff filed the following evidence:

1.  Excepts from Plaintiff’s deposition.  (Index, Ex. 1.)  She testified she started school in Pomona in July 1985 and used a fume hood made by Fisher Scientific that she estimated was about three to five years old.  (Id, Ex. 1 at pp. 205, 214-215.) 

2.  Excerpts from an International Directory of Company Histories with a copyright date of 1999.  (Index, Ex. 2.)  Plaintiff highlighted a statement that around 1950, Defendant entered an agreement with Fisher Scientific to make “a stock line of metal laboratory furniture.”  (Id., Ex. 2 at p. 260.) 

3.  Fisher Scientific’s 2013 responses to requests for admission in an Illinois case.  (Index, Ex. 3.)  Plaintiff highlighted a statement that “all of the Fisher Scientific brand laboratory furniture line, including fume hoods . . . was manufactured and supplied to Fisher Scientific exclusively by Kewaunee Scientific Corporation from approximately 1945 to 1968, and during this period Fisher Scientific brand fume hoods that it offered for sale were manufactured exclusively by Kewaunee Scientific Corporation and sold under the Fisher Scientific brand name . . . .”  (Id., Ex. 3 at p. 20.) 

4.  Excerpts from undated documents that appear to be Fisher Scientific catalogs showing Kewaunee on lists of suppliers.  (Index, Ex. 4 at pp. VII, XVII, XV.) 

5.  An Internet printout from what appears to be Defendant’s website stating “Kewaunee fume hoods manufactured after January 1, 1985 do not contain asbestos bearing materials.  Hoods manufactured prior to that date may have asbestos cement board liner.”  (Index, Ex. 5 at p. 2.)

6.  An Internet printout dated April 19, 2023 from what appears to be Defendant’s website mentioning fume hoods and listing California agents.  (Index, Ex. 6.)

7.  A copy of a May 19, 1974 article stating Upland and Valley View high schools were buying cabinets from Defendant.  (Index, Ex. 7.) 

8.  A copy of a July 9, 1995 ad apparently in the Los Angeles Times for a sales engineer, listing Defendant’s address in Ventura.

9.  An undated document with a 2012 copyright mark that appears to be a catalog from Defendant for fume hoods.  (Index, Ex. 9.)

10.  A complaint in another case making allegations about Defendant.  (Index, Ex. 10.)

11.  Defendant’s answer in another case.  (Index, Ex. 11.)

This evidence does not establish that Defendant made fume hoods for Fisher Scientific, that were then sold in California in the 1980s.  Rather at most (and assuming all of the exhibits are admissible), it establishes that in the 1950s, Defendant started making a stock line of metal laboratory furniture for Fisher Scientific and made that furniture including fume hoods for Fisher Scientific until about 1968.  Plaintiff testified that the fume hood she used started using in 1985 was three to five years old.  Therefore could not have been made before 1968.  Because Plaintiff did not present evidence that after 1968, Defendant continued to manufacture fume hoods for sale under the Fisher Scientific name for distribution in California, Plaintiffs did not show her claims of exposure from a Fisher Scientific fume hood is related to Defendant’s activities in California.  

Plaintiff requests jurisdictional discovery into Defendant’s manufacture and supply of fume hoods to California.  (Opposition at pp. 7-8.)  The motion is continued to allow discovery into whether Defendant continued to manufacture fume hoods for sale under the Fisher Scientific name in California after 1968. 

Therefore, the motion is CONTINUED to August 3, 2023 at 9 a.m.  Plaintiff and Defendant may file supplemental opposition and reply briefs based on regular notice.  

The moving party is ordered to give notice.