Judge: Malcolm Mackey, Case: 22STCV28389, Date: 2023-08-04 Tentative Ruling


Case Number: 22STCV28389    Hearing Date: August 18, 2023    Dept: 55

JOHN DOE v. SOUTHEASTERN CALIFORNIA CONFERENCE OF SEVENTH-DAY ADVENTISTS,                                                          22STCV28389

Hearing Date:  8/18/23,  Dept. 55.

#4:   MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION AND DISMISS ACTION.

 

Notice:  Okay

Opposition

 

MP:  Defendant NORTH AMERICAN DIVISION OF SEVENTH DAY ADVENTISTS.

RP:  Plaintiff

 

 

Summary

 

On 8/31/22, Plaintiff filed a Complaint.

On 12/30/22, Plaintiff, filed a First Amended Complaint, alleging that he was born in March of 1981, and while a minor, was a victim of childhood sexual molestation and assault done by defendants’ employed teacher, at South Bay Junior Academy, caused by defendants’ failures and refusals, including with regard to hiring, retention, training and supervision, by defendants SOUTHERN CALIFORNIA CONFERENCE OF SEVENTH-DAY ADVENTISTS (SCC) and NORTH AMERICAN DIVISION OF SEVENTH DAY ADVENTISTS (NAD).

The causes of action are:

(1) NEGLIGENCE;

(2) NEGLIGENT SUPERVISION;

(3) NEGLIGENT HIRING/RETENTION;

(4) NEGLIGENT FAILURE TO WARN TRAIN OR EDUCATE;

(5) CONSTRUCTIVE FRAUD (CIVIL CODE § 1573);

(6) BREACH OF FIDICIARY DUTY;

(7) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

 

 

MP Positions

 

Moving party request an order quashing service of summons and dismissing the action, on grounds including the following:

 

·         The Court lacks personal jurisdiction over Specially Appearing Defendant NAD.

·         It is an out-of-state corporation that does not, and is not registered to, do business in the State of California.

·         NAD does not have substantial and systematic contacts in California.

·         NAD has not performed any act or transaction that would subject it to being hauled into a California court.

·         The opposition lacks competent evidence and a preponderance of the evidence to meet its burden of proof to support the exercise of jurisdiction over NAD.

·         Each opposing exhibit is incompetent proof or unsupportive, as specified at page 4 of the reply.

·         Permitting Plaintiff to conduct discovery will waste time and money, because no evidence exists that will meet the burden of proof required to exercise jurisdiction over NAD.

 

 

RP Positions

 

Opposing party advocates denying, or a continuance for discovery, for reasons including the following:

 

·         Plaintiff will present evidence of Defendant’s “substantial and continuous” contacts with the State of California, such that it should be subject to this Court’s jurisdiction based on general jurisdiction principles.

·         Plaintiff will also show a connection between the contacts with the State of California and this particular controversy, consistent with principles regarding specific jurisdiction.

·         Moving Defendant did not contest jurisdiction in an action in Riverside, in which discovery was produced, and is relied upon herein.

·         Defendant exercises substantial control over La Sierra Academy in Riverside, as stated in official filings.

·         The First Amended Complaint alleges that Defendant NAD “controls and has decision making power over a school known as SBJA and was the primary entity owning, operating and controlling the activities and behavior of its employee and agent Pumphrey-Quave.”  (FAC at ¶3.) Plaintiff alleges Pumphrey-Quave was employed, retained, and/or allowed to be on-campus to supervise, mentor, aide and/or teach children at SBJA…(and that) (i)n such capacity, Pumphrey-Quave was under the direct supervision, employ, agency, and control of the SCC and NAD (¶16.)  Plaintiff alleges that, as an educational institution for minors, where all the students are entrusted to the teachers, counselors, advisors, mentors, coaches, faculty members and administrators, SCC and NAD expressly and implicitly represented that these individuals, including Pumphrey-Quave, were not a sexual threat to children and others who would fall under Pumphrey-Quave's influence, control, direction, and guidance.(¶71.)

 

 

Tentative Ruling

 

The motion hearing is continued to 10/6/23 at 8:30 a.m. in Dept. 55.

Plaintiff may conduct discovery as to the jurisdictional issues raised by the instant motion, and serve and file supplemental opposing papers at least 10 days before the continued hearing date.

The Court finds that the opposing documents from other litigation that counsel was attorney of record in, are properly authenticated as discovery responses, but are too thin in facts to show minimum contracts of moving party, including as to the details of accreditation involvement with in-state schools.  The Court further finds that the Internet documents are not competent proof of the factual assertions contained therein.  Additionally, the Court finds that the opposition relies too heavily on the First Amended Complaint, which is not admissible evidence.

“A trial court has the discretion to continue the hearing on a motion to quash service of summons for lack of personal jurisdiction to allow the plaintiff to conduct discovery on jurisdictional issues.”  HealthMarkets, Inc. v. Sup. Ct. (2009) 171 Cal. App. 4th 1160, 1173.  Accord  Beckman v. Thompson  (1992) 4 Cal.App.4th 481, 487.  A “plaintiff is generally entitled to conduct discovery with regard to a jurisdictional issue before a court rules on a motion to quash”, but it lies within the sound discretion of the judge. Goehring v. Sup. Ct. (1998) 62 Cal. App. 4th 894, 911.  "In order to prevail on a motion for a continuance for jurisdictional discovery, the plaintiff should demonstrate that discovery is likely to lead to the production of evidence of facts establishing jurisdiction."   In re Automobile Antitrust Cases I & II (2005) 135 Cal. App. 4th 100, 127.

In opposition to a motion to quash based upon lack of personal jurisdiction, complainants have the initial burden of to file evidence to show minimum contacts.  Muckle v. Sup. Ct. (2002) 102 Cal. App. 4th 218, 228.  “When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.”  Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568.  After minimum contacts with the forum state are shown, defendants have the shifted burden to show that jurisdiction would be unreasonable. Muckle, supra, at 228.

Attorneys with personal knowledge of discovery in the litigation are competent to testify that they obtained information as discovery responses.  Luckman Partnership, Inc. v. Sup. Ct.  (2010) 184 Cal.App.4th 30, 34-35 (counsel properly authenticated interrogatory responses by declaring personal knowledge that the documents were the party’s responses);  Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1183 (“declaration establishes that her personal knowledge of the litigation rendered her competent to testify that respondents had obtained the materials … through discovery.”);  Barnick v. Longs Drug Stores, Inc. (1988) 203 Cal.App.3d 377, 380 n. 3 (attorney’s declaration sufficient to authenticate the answers received to interrogatories).

As to online and social media, general authentication rules apply, including the requirement of sufficient evidentiary foundation supporting a finding that writings are what they purport to be. Kinda v. Carpenter (2016) 247 Cal. App. 4th 1268, 1283.  Documents appearing to be Internet searches of various web sites are inadmissible absent authentication demonstrating that they actually depict what they purport to show.  McGarry v. Sax (2008) 158 Cal. App. 4th 983, 991.  Printouts of web pages are self-authenticating, and are not hearsay, if not offered for the truth of the matter asserted.  Ampex Corp. v. Cargle (2005) 128 Cal. App. 4th 1569, 1573 n.2 (citing Ev. C. §1552(a)).

A court held that an unverified complaint could not serve as substantial evidence for meeting a plaintiff’s burden to show personal jurisdiction in opposition to a motion to quash.  See  Sheard v. Sup. Ct. (1974)  40 Cal.App.3d 207, 210-12.  Complaint allegations are not evidence, because pleadings are merely formal allegations.  San Diego Police Officers Assn. v. City of San Diego (1994) 29 Cal. App. 4th 1736, 1744;  Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 Cal. App. 4th 220, 241.