Judge: Mark A. Young, Case: 23SMCV00216, Date: 2023-04-14 Tentative Ruling
Case Number: 23SMCV00216 Hearing Date: April 14, 2023 Dept: M
CASE NAME: Postacchini,
v. Liljestrom, et al.
CASE NO.: 23SMCV00216
MOTION: Motion
to Quash Summons
HEARING DATE: 4/14/2023
Legal
Standard
“A defendant . . . 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 . . ..” (CCP § 418.10(a).)
A court lacks jurisdiction over a party if there has not been proper service of
process. (Ruttenberg v. Ruttenberg (1997) 53
Cal.App.4th 801, 808.)
“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.) The plaintiff has “the burden of proving the facts that did
give the court jurisdiction, that is the facts requisite to an effective
service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868;
see also Elkman v. National States Ins. Co. (2009) 173
Cal.App.4th 1305, 1312-13 [“Where a nonresident defendant challenges
jurisdiction by way of a motion to quash, the plaintiff bears the burden of
establishing by a preponderance of the evidence that minimum contacts exist
between the defendant and the forum state to justify imposition of personal
jurisdiction.”].)
Analysis
Defendants Connor Liljestrom and Liljestrom Fine Art
Studio move to quash service of summons. Defendants assert that this Court
lacks personal jurisdiction, as they are residents of the State of Wyoming and
have no systematic contacts with California.
A non-resident defendant may be subject to either general
or specific jurisdiction. (Elkman v. National States Insurance Co. (2009)
173 Cal.App.4th 1305, 1314.) General jurisdiction exists when a defendant is domiciled
in the forum state or his activities there are substantial, continuous, and
systematic. (F. Hoffman-La Roche, Inc. v. Sup. Ct. (2005) 130
Cal.App.4th 782, 796.)
Plaintiff cannot demonstrate general jurisdiction against
Defendants. Liljestrom has never lived in California, as he was born and raised
in Wyoming. (Liljestrom Decl., ¶¶ 1-7.) Liljestrom owns no property in
California. (Ibid.) Furthermore, Defendant Liljestrom Fine Art Studio is
located and operates in Wyoming. (Id., ¶ 8.) Liljestrom declares that he has
limited contact with California, only visiting on 10 occasions for recreational
purposes. (Id., ¶ 16.) Plaintiff submits no evidence that Defendants have
substantial, continuous, and systematic contacts with California, such that
they are at home here. Thus, the Court
lacks general jurisdiction over Defendants.
“Where general jurisdiction cannot be established, a court
may assume specific jurisdiction over a defendant in a particular case if the
plaintiff shows the defendant has purposefully availed himself or herself of
forum benefits; [ie.] the nonresident purposefully directed its
activities at forum residents or purposefully availed itself of the privilege
of conducting activities within the forum state, thus invoking the benefits and
protections of local law. (Hanson v. Denckla (1958)
357 U.S. 235.)
Specific jurisdiction involves a 3-part test: (1) the
nonresident defendant must do some act or consummate some transaction with the
forum or perform some act by which he purposefully avails himself of the
privilege of conducting activities in the forum, thereby invoking the benefits
and protections of its laws; (2) the claim must be one which arises out of or
results from the defendant's forum-related activities; and (3) exercise of
jurisdiction must be reasonable.” (Jewish Defense Organization, Inc. v.
Sup. Ct. of Los Angeles County (1999) 72 Cal.App.4th 1045, 1054 [purposeful availment exists
where a defendant performed some type of affirmative conduct which allows or
promotes the transaction of business within the forum state]; see Dow
Chemical Canada ULC v. Sup.Ct. (2011) 202 Cal.App.4th 170, 179 [that
defendant could predict its products would reach California was not sufficient
to establish jurisdiction where defendant did nothing that revealed intent “to
invoke or benefit from the protection of” California law].) The relationship
must arise out of contacts that the defendant himself creates with the forum
State, not by contacts between the plaintiff or third parties and the forum
State. (Walden v. Fiore (2014) 571 US 277, 284.)
For purposeful availment, a defendant must
purposefully establish contacts with the forum state. A defendant will not be
haled into court solely as a result of random, fortuitous, or attenuated contacts,
or of the unilateral activity of another party or a third person. (Burger
King Corp. v. Rudzewicz (1985) 471 U.S. 462, 475.) In examining purposeful
availment in the context of torts, California courts have used the “effects
test.” (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269
[defamation case]; see Mavrix Photo, Inc. v. Brand Technologies, Inc.
(9th Cir. 2011) 647 F.3d 1218, 1228 [copyright infringement, a tort-like cause
of action, effects test was “the proper analytical framework”].) Under this
test, intentional conduct occurring elsewhere may give rise to jurisdiction in
California where it is calculated to cause injury in California. The defendant
must expressly aim or target his conduct toward California, with the knowledge
that his intentional conduct would cause harm in the forum. (Pavlovich,
supra, 29 Cal.4th, at 271–273.)
Plaintiff attempts to establish specific jurisdiction
through the following facts. Defendants used photographs of Plaintiff taken by
a purportedly California-based photographer, Cory Piehowicz (apparently in New
Mexico) to create the subject paintings and prints. (See Postacchini Decl., ¶
3-5.) Defendants sold these paintings and prints on their website, which is accessible
in California. (Id., ¶¶ 3, 6.) Defendants also posted photos of the prints on
social media, which are also accessible in California. (Id., Ex. D.) Liljestrom
contacted the photographer and received permission to use the photo in his
paintings. (Id., ¶ 8; Liljestrom Decl., ¶¶ 13-15.) Plaintiff contends that
Piehowicz was in California at the time of this contact, but does not provide
strong evidence that this was the case. On this record, the California contacts
appear attenuated. Liljestrom painted the subject piece of art at the Jackson
Hole Fall Arts Festival, held in Jackson, Wyoming. (Id., ¶ 9.) The painting was
sold to a resident of Wyoming at that event. (Id., ¶¶ 10-12.) Thus, in an
effort to establish specific jurisdiction, Plaintiff relies on the facts that:
i) Defendants posted images online of art based on Plaintiff’s likeness; and
ii) contacted the photographer, who might have been in California at the time, for
permission to use the photograph of Plaintiff as a reference for the art.
Defendants
use of an image of a Californian itself would not confer jurisdiction. There is
no evidence that Defendants knew that this image was of Plaintiff, a
Californian. Accordingly, it cannot be said that Defendants’ conduct was aimed
at California or calculated to cause injury in California. Further, the fact
that Defendants asked permission from the
photographer, a third party, who may or may not be a California resident or
present in California at the time, also was not conduct aimed at California.
Moreover, the contact with the photographer is only tangentially related
to the Plaintiff’s claim. This contact does not form the basis of the claims. As
such, this tangential contact with someone who might have been in
California would not be sufficient evidence of purposeful availment.
Plaintiff
presents Defendants’ website and social media posts as potential contacts with
California. Caselaw provides that websites or social media posts may establish
purposeful availment for personal jurisdiction over a non-resident. (Zehia
v. Sup.Ct. (2020) 45 Cal.App.5th 543; Burdick v. Superior Court
(2015) 233 Cal.App.4th 8.) However, Courts have held that posting information
on a “passive” Internet site accessible to forum residents is not an act “aimed”
at the forum state, and thus not enough for personal jurisdiction. (Pavlovich,
supra, 29 Cal.4th at 277; see Strasner v. Touchstone Wireless
Repair & Logistics, LP (2016) 5 Cal.App.5th 215 [public posting of
photograph on social media did not confer jurisdiction where there was no
evidence it “specifically targeted California”].) If the website is
interactive, the exercise of jurisdiction must be determined “by examining the
level of interactivity and commercial nature of the exchange of information
that occurs on the Web site.” (Snowney v. Harrah's Entertainment, Inc.
(2005) 35 Cal.4th 1054, 1070.) Purposeful availment has been found where a defendant
sends “California-focused” messages directly to California residents “with
knowledge the recipients [are] California residents.” (Zehia, supra, 45
Cal.App.5th at 556–558; Yue v. Yang (2021) 62 Cal.App.5th 539, 547.)
For example, in Burdick, a group of bloggers published
blog entries questioning the safety and efficacy of a skin care product. (Burdick,
supra, 233 Cal.App.4th at 14–15.) In response, a representative of the skin
care company made a public social media post suggesting the bloggers had
criminal histories. (Id.) The bloggers filed suit in California against
the representative, a resident of Illinois. (Id.) The Court of Appeal revered
a denial of a motion to quash service of summons, reasoning that the public
posting of an allegedly defamatory statement on social media did not create a
“substantial connection” with California. (Id. at 25.) The court noted
that there was no evidence indicating the social media page had a California
audience, that any significant number of the defendant's social media
connections resided in California, or advertisements on the social media page
targeted California. (Ibid.) Thus, the mere public posting on a social
media page, even with knowledge the plaintiff was in the forum state, was
insufficient to confer jurisdiction over the defendant. (Id. at 25.)
Thus, purposeful availment is not established where a posting was aimed at
California residents only in sense that anyone in the world could access
a public social media page.
Defendants’
website apparently offers for sale prints of the subject art. Further,
Defendants have posted images of the subject art on social media. However,
Plaintiff does not present any evidence that Defendants targeted California
residents with their website or social media posts. While the posts and website
could theoretically be viewed by someone in California, there is no evidence
that Defendants’ website or social media postings were expressly aimed at or
intentionally targeted California. On this record, the Court could only infer
that it is aimed at internet users at large. Further, there is no evidence that Defendants have sold prints of
the subject art in California at all, let alone evidence that this comprises a
significant portion of their business. (See Thurston v. Fairfield
Collectibles of Georgia, LLC (2020) 53 Cal.App.5th 1231, 1235 [“evidence
showed that [defendant] makes some eight to ten percent of its sales to
Californians. Hence, its website is the equivalent of a physical store in
California. Moreover, this case arises out of the operation of that website”].)
The only sale on the record was to a local Wyoming resident.
Accordingly, and based upon the
evidence before the Court, Defendants’ motion to quash is tentatively GRANTED.
PRO HAC VICE
APPLICATION
California Rules of Court, rule
9.40 provides that an attorney in good standing in another jurisdiction may
apply to appear pro hac vice in this State by way of written application upon
due notice to all interested parties, as well as service on the State Bar in
San Francisco with payment of a $50.00 fee, so long as that attorney is not a
resident of California, does not work in California and does not perform
regular or substantial business, professional or other activities in the State.
The written application must provide the following information:
(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
licensee in good standing in those courts;
(4) That the applicant is not
currently suspended or disbarred in any court;
(5) The title of each 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 licensee of the State Bar of California who is
attorney of record.
(CRC Rule 9.40(d).)
Counsel for Defendants, Bradley L.
Booke, applies to appear as counsel pro hac vice in this action. The
declaration supplied sufficient information to satisfy the requirements. (Booke
Decl., ¶¶ 1-6.) Brooke does indicate proof of service on the State Bar.
However, Brooke does not indicate whether he has paid the $50.00 fee noted in
the rule. Counsel needs to provide proof of service of that fee before the
application can be granted. If that is
presented, the application would be GRANTED.