Judge: Lynne M. Hobbs, Case: 24STCV24416, Date: 2025-06-04 Tentative Ruling
Case Number: 24STCV24416 Hearing Date: June 4, 2025 Dept: 61
TANYA CANTU vs NINTENDO OF AMERICA INC.,
Tentative:
Defendant Nintendo of America, Inc.’s Motion to Quash Service of Summons is DENIED. Defendant is ordered to file a responsive pleading within 30 days of this Order.
Defendant Nintendo of America, Inc.’s Motion to Admit Mallory Gitt Webster Pro Hac Vice is GRANTED.
Plaintiffs to provide notice
Analysis:
I. MOTION TO QUASH SERVICE
Code of Civil Procedure section 418.10, subd. (a)(1) states: “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes . . . (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” A defendant may serve and file a motion to quash service of summons on the grounds of a lack of jurisdiction over him or her. (Code Civ. Proc., § 418.10 subd. (a)(1).) A plaintiff opposing a motion to quash service for lack of personal jurisdiction “has the initial burden to demonstrate facts establishing a basis for personal jurisdiction.” (HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1167.) If satisfied, the burden then shifts to defendant to show that exercise of jurisdiction would be unreasonable. (Id.)
A court may exercise jurisdiction on any basis not inconsistent with the Constitution of California or of the United States. (Code Civ. Proc., § 410.10.) The exercise of personal jurisdiction is constitutionally permissible only “if the defendant has sufficient ‘minimum contacts’ with the forum state so that the exercise of jurisdiction ‘does not offend “traditional notions of fair play and substantial justice.” [Citations.]’ ” (HealthMarkets, Inc. v. Superior Court (“HealthMarkets, Inc.”) (2009) 171 Cal.App.4th 1160, 1166 [citing International Shoe Co. v. Washington (1945) 326 U.S. 310, 316].) A defendant’s conduct with the forum state must be such that the defendant has “fair warning” that its activities might subject it to personal jurisdiction. (HealthMarkets, Inc., supra, 171 Cal.App.4th at p. 1166–1167; Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472.) Minimum contacts exist where the defendant's conduct in the forum state is such that he should reasonably anticipate being subject to suit there, and it is reasonable and fair to force him to do so. [Citations.] In contrast, contacts that are random, fortuitous, or attenuated do not rise to the minimum level, and general jurisdiction cannot be exercised under these circumstances.” (F. Hoffman-La Roche, Inc. v. Superior Court (“F. Hoffman-La Roche”) (2005) 130 Cal.App.4th 782, 795.) A defendant that has substantial, continuous, and systematic contacts with the forum state is subject to general jurisdiction in the state, meaning jurisdiction on any cause of action. Absent such extensive contacts, a defendant may be subject to specific jurisdiction, meaning jurisdiction in an action arising out of or related to the defendant's contacts with the forum state. Specific jurisdiction depends on the quality and nature of the defendant's forum contacts in relation to the particular cause of action alleged. (HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1167.)
In determining whether specific jurisdiction exists over a given defendant, “the appropriate inquiry is whether the plaintiff's cause of action “arises out of or has a substantial connection with a business relationship defendant has purposefully established with California.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 448.) “[A]s the relationship of the defendant with the state seeking to exercise jurisdiction over him grows more tenuous, the scope of jurisdiction also retracts, and fairness is assured by limiting the circumstances under which the plaintiff can compel him to appear and defend. The crucial inquiry concerns the character of defendant's activity in the forum, whether the cause of action arises out of or has a substantial connection with that activity, and upon the balancing of the convenience of the parties and the interests of the state in assuming jurisdiction.” (Ibid.)
It is the plaintiff’s initial burden to establish the factual bases justifying the exercise of jurisdiction. (ViaView v. Retzlaff (2016) 1 Cal.App.5th 198, 209–10.) “Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (Vons Companies, Inc., supra, 14 Cal.4th at p. 449.) Defendant Nintendo of America, Inc. (Defendant) argues that this court lacks any basis to exercise personal jurisdiction over it, a Washington corporation with its principal place of business in Washington, other than its maintenance of a website accessible to Californians such as Plaintiff Tanya Cantu (plaintiff). (Motion at pp. 13–16.)
It is true enough that the mere maintenance of a website accessible to residents of a forum state will not constitute purposeful availment of contacts with that state for the purposes of establishing specific jurisdiction there. (See Jacqueline B. v. Rawls Law Group, P.C. (2021) 68 Cal.App.5th 243, 254.) But Defendant acknowledges that it did not merely maintain a website with information available to California residents, but sold products nationwide, including to California residents, through the site. (Menaldo Decl. ¶ 4.) The sale of physical products into a forum via an interactive website can be sufficient to establish that a defendant expressly aimed its conduct at the forum” where the sales occur in the “defendant’s regular course of business” — i.e. are not random, isolated, or fortuitous” — and “the defendant must exercise some level of control over the ultimate distribution of its products beyond simply placing its products into the stream of commerce.” (Herbal Brands, Inc. v. Photoplaza, Inc. (9th Cir. 2023) 72 F.4th 1085, 1094, cert. denied (2024) 144 S.Ct. 693.)
Here, because products on Defendant’s site are regularly purchasable from California directly from its online storefront, both criteria are met here. Defendant “clearly does business over the internet” with Californians as a regular part of its business. (Thurston v. Fairfield Collectibles of Georgia, LLC (2020) 53 Cal.App.5th 1231, 1238.) As Defendant notes in reply, this does not alone satisfy the requirements of specific jurisdiction, as a plaintiff must not merely establish purposeful availment of the forum state by intentional contacts, but also that their own claims “arise out of or relate to the defendant’s contacts with the forum.” (Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County (2017) 582 U.S. 255, 262, internal alterations omitted.) Defendant argues that Plaintiff’s claims arise from Defendant’s alleged use of spyware on its site and the relaying of user search terms to a third-party company, not to any purchase made by Plaintiff. (Motion at pp. 17–19.)
This argument is unpersuasive, as Plaintiff’s claims relate to Defendant’s contacts with California. Defendant uses its site to sell products to Californians in the regular course of its business. Plaintiff submits a declaration stating that she accessed the website and entered search terms in the site’s search bar “to search for a certain category of video games that I was interested in learning about to potentially purchase.” (Cantu Decl. ¶ 2.) Plaintiff’s claims arise from Defendant’s use of pen register / trap and trace (PR/TT) software to track visitors to its site, which were installed on Plaintiff’s browser when she visited, and which will necessarily apply to all who access it for the purpose of browsing or purchasing goods. (Complaint ¶¶ 58–64.) Plaintiff’s claims also relate to the relaying of search terms to undisclosed third parties, which also includes searches related to Defendant’s products, available for purchase on the same site. (Complaint ¶¶ 95–96.) Although Defendant argues that Plaintiff’s claims have “nothing to do with product sales” (Motion at pp. 17–18), it has much to do with the terms upon which Defendant permits Californians to purchase products from the site — namely, that they are not permitted to purchase them, or even browse them, without surrendering private information they have not consented to divulge. The contention that due process requires all such claims to be litigated in Washington finds no basis in the law cited by Defendant.
Defendant finally argues that exercise of jurisdiction here would not comply with notions of fair play and substantial justice. (Motion at p. 19.) Yet it articulates no basis to reach this conclusion, save the repetition of the arguments discussed above.
The motion to quash is therefore DENIED.
I. PRO HAC VICE
“A person who is not a member of the State Bar of California but who is a member in good standing of and eligible to practice before the bar of any United States court or the highest court in any state . . . and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice, provided that an active member of the State Bar of California is associated as attorney of record.” (Cal. Rules of Court (“CRC”) Rule 9.40(a).) An applicant may not be a resident of the State of California, regularly employed in the State of California, or regularly engaged in substantial business, professional, or other activities in the State of California. (CRC 9.40(a)(1–3.)
“A person desiring to appear as counsel pro hac vice in a superior court must file with the court a verified application together with proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office.” (CRC 9.40(c)(1).) Notice must be given sixteen days before the hearing.
“The application must state; (1) The applicant's residence and office address; (2) The courts to which the applicant has been admitted to practice and the dates of admission; (3) That the applicant is a member in good standing in those courts; (4) That the applicant is not currently suspended or disbarred in any court; (5) The title of court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (6) The name, address, and telephone number of the active member of the State Bar of California who is attorney of record.” (CRC 9.40(d)(1–6.) Additionally, a $50 must be paid to the California Bar. (CRC 9.40(e).)
Defendant Nintendo of America, Inc. (Defendant) seeks to admit Mallory Gitt Webster as counsel pro hac vice. Webster submits a declaration stating that she is a resident of Seattle, Washington, with her office address in the same city. (Webster Decl. ¶¶ 3–5.) Webster is not currently disbarred or suspended in any jurisdiction. (Webster Decl. ¶ 7.) She has appeared pro hac vice in California in three prior occasions in the preceding two years. (Webster Decl. ¶ 8.) The present application has been submitted to the California State Bar, and the associated fee has been paid. (Webster Decl. ¶ 10.)
The application is GRANTED.