Judge: Mel Red Recana, Case: 23STCV02819, Date: 2024-02-22 Tentative Ruling

Case Number: 23STCV02819    Hearing Date: March 4, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing date:  March 4, 2024

Moving Party:  Defendants PDQ Arm and Prop, LLC and Seth Kenney

Responding Party:  Plaintiffs Olga Solovey, Anatoli Androsovych, and Svetlana Zemko

Motion to Quash Service of Summons      

The Court considered the moving papers, opposition, and reply.

            The motion is GRANTED.

Background

            On February 9, 2023, Plaintiffs Olga Solovey, Anatoli Androsovych, and Svetlana Zemko (“Plaintiffs”) filed the Complaint against Defendants Rust Movie Productions, LLC; Alexander R. Baldwin III; El Dorado Pictures, Inc.; Ryan Donnell Smith; Langley Allen Cheney; Thomasville Pictures, LLC; Anjul Nigam; Brittany House Pictures; Hannah Gutierrez-Reed; Sarah Zachry; Seth Kenney; PDQ Arm and Prop, LLC; David Halls; Nathan Klingher; Ryan Winterstern; Short Porch Pictures, LLC; Matthew Delpiano; Calvary Media, Inc.; Gabrielle Pickel; 3^rd Shift Media, LLC; Katherine Walters; Chris M.B. Sharp; Jennifer Lamb; Emily Salveson; Streamline Global (“Defendants”); and DOES 1 through 100, inclusive for: (1) Battery; (2) Intentional Infliction of Emotional Distress; (3) Negligence; and (4) Loss of Consortium.

            On August 28, 2023, Defendants PDQ Arm and Prop, LLC and Seth Kenney filed this instant Motion to Quash Service of Summons. On February 20, 2024, Plaintiffs filed an opposition. On February 26, 2024, Defendants PDQ Arm and Prop, LLC and Seth Kenney filed a reply.

Legal Standard

Pursuant to Code of Civil Procedure Section 418.10, “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…to quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10(a)(1).) 

            When a defendant moves to quash service of the summons and complaint, 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.) The plaintiff must establish the facts of jurisdiction by a preponderance of the evidence. (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568.) “When a nonresident defendant challenges personal jurisdiction the burden shifts to the plaintiff to demonstrate by a preponderance of the evidence that all necessary jurisdictional criteria are met. [Citation.] This burden must be met by competent evidence in affidavits and authenticated documentary evidence. An unverified complaint may not be considered as an affidavit supplying necessary facts.” (Jewish Defense Organization, Inc. v. Superior Court (1999) 72 Cal.App.4th 1045, 1054-55.) 

Discussion

            Defendants PDQ Arm and Prop, LLC and Seth Kenney move for an order quashing service of summons and complaint in this actions, and dismissing the complaint against them due to lack of personal jurisdiction.

Defendant PDQ Arm and Prop, LLC argues it is a limited liability company registered in Arizona and New Mexico, with its principal business in Arizona. Furthermore, Defendant PDQ Arm and Prop, LLC contends it is not incorporated in California and has not filed to qualify to do business in California. Moreover, Defendant PDQ Arm and Prop, LLC asserts it has no local agent for service of process located in California and does not employ any individuals located in California. Defendant PDQ Arm and Prop, LLC also contends it does not maintain or solicit business through any office, agency, or representative in California. Additionally, Defendant PDQ Arm and Prop, LLC contends it does not market its services to or in California or any state. Defendant PDQ Arm and Prop, LLC asserts its limited contacts with California include occasional participation in volunteer opportunities since 2017, a less than one week film production in 2018 unrelated to Defendant Rust Movie Productions, LLC, and a single business transaction over three years ago involving a film project in California unrelated to the Rust production. As such, Defendant PDQ Arm and Prop, LLC argues its contacts with California are not continuous and systematic sufficient to render it essentially at home for purposes of general jurisdiction.

Similarly, Defendant Seth Kenney argues  California has no general jurisdiction over him. Defendant Seth Kenney contends he is a domiciliary of Arizona, currently lives in Arizona, and has for at least five years, with the intent to remain in Arizona indefinitely. Defendant Seth Kenney further contends Arizona is where he works and maintains most of his personal property. Moreover, Defendant Seth Kenney argues his ownership of a vacation home, sailboat, and vehicle registered to a family member’s address within the State of California unrelated to Plaintiffs’ complaint is not sufficient, on its own, to establish general jurisdiction in this case. Defendant Seth Kenney also argues his business is headquartered in Arizona and New Mexico and has had no substantial, continuous, or systematic contact with California. In addition, Defendant Seth Kenney contends he did not have any contact with California at the time Plaintiffs’ alleged injuries occurred.

            Likewise, Defendants PDQ Arm and Prop, LLC and Seth Kenney argue California lacks specific jurisdiction over either of them. Defendants PDQ Arm and Prop, LLC and Seth Kenney contend Plaintiffs’ failed to allege how or when Defendants PDQ Arm and Prop, LLC and Seth Kenney purportedly purposefully established contacts with California. Specifically, Defendants PDQ Arm and Prop, LLC and Seth Kenney assert there is not a single allegation contained in the complaint tying them to California or showing that they have any contacts with California. Defendants PDQ Arm and Prop, LLC and Seth Kenney further argue Plaintiffs’ claims are wholly unrelated to any limited and sporadic contacts Defendants PDQ Arm and Prop, LLC and Seth Kenney may have had with California. Defendants PDQ Arm and Prop, LLC and Seth Kenney contend there is no allegation in the complaint that Defendants PDQ Arm and Prop, LLC and Seth Kenney’s purported contact or forum activities with California relate to Plaintiffs’ alleged injuries contained in the complaint. Defendants PDQ Arm and Prop, LLC and Seth Kenney also contend Plaintiffs cannot establish their claims against Defendants PDQ Arm and Prop, LLC and Seth Kenney arise out of any purported contact or activity that they had or engaged in within the State of California. Lastly, Defendants PDQ Arm and Prop, LLC and Seth Kenney argue assuming Plaintiff could prove Defendants PDQ Arm and Prop, LLC and Seth Kenney’s purportedly purposefully established contacts with California and their causes of action arise out of or are related to Defendants PDQ Arm and Prop, LLC and Seth Kenney’s contacts with California, exercising specific jurisdiction over them would be unreasonable. Defendants PDQ Arm and Prop, LLC and Seth Kenney argue (1) the burden on them in defending this case would be great because they are located in Arizona and New Mexico; (2) New Mexico is where the underlying accident occurred, Plaintiffs’ alleged injuries occurred, and Defendants PDQ Arm and Prop, LLC and Seth Kenney are located; and (3) it is highly likely most of the evidence and witnesses are located in New Mexico.

In opposition, Plaintiffs argue at all relevant times, Defendants PDQ Arm and Prop, LLC and Seth Kenney maintained the necessary minimum contacts with California sufficient enough for this Court to exercise jurisdiction over them. Plaintiffs contend Defendants PDQ Arm and Prop, LLC and Seth Kenney, as interstate suppliers of weapons and ammunition for film sets from Arizona into neighboring California and New Mexico, have availed themselves over years of contacts within California that are not random or fortuitous including providing arms and ammunition for the October 2021 filming of Rust, which killed Halyna Hutchins. Furthermore, Plaintiffs argue Defendant Seth Kenney maintained a home in California despite their alleged temporariness, during the relevant time period. Finally, Plaintiffs argue if the court is inclined to grant this instant motion, the Court should order limited jurisdictional discovery and stay this motion 90 days.

            In reply, Defendants PDQ Arm and Prop, LLC and Seth Kenney argue Plaintiffs have presented no admissible, relevant evidence that establishes that this Court has personal jurisdiction over Defendants PDQ Arm and Prop, LLC and Seth Kenney. Defendants PDQ Arm and Prop, LLC and Seth Kenney further argue Plaintiffs do not argue that their affiliations or business contacts are so continuous and systematic as to render them at home in California. Defendants PDQ Arm and Prop, LLC and Seth Kenney also contend Plaintiffs’ categorization of them as interstate suppliers of weapons and ammunition is irrelevant here as the focus is not on other states but rather on California. Defendant Seth Kenney also argues he admits to owning a home in California that he rarely visits but ownership of property in a forum state alone is not sufficient to establish general jurisdiction. Moreover, Defendants PDQ Arm and Prop, LLC and Seth Kenney argue there is no evidence that they have purposefully or intentionally availed themselves of California such that they expected to be hauled into court in California by Plaintiffs for their alleged injuries because Defendants PDQ Arm and Prop, LLC and Seth Kenney at the time of the accident (1) did not advertise its services in California; (2) did not employ employees in California; and (3) did not conduct regular business in California. Rather Defendants PDQ Arm and Prop, LLC and Seth Kenney argues their previous contacts with California have been random, sporadic, and temporary. Additionally, Defendants PDQ Arm and Prop, LLC and Seth Kenney contend Plaintiffs presented no evidence that Defendants PDQ Arm and Prop, LLC and Seth Kenney’s isolated contacts with California is related to the Rust production or Plaintiffs’ claims in any way. Lastly, Defendants PDQ Arm and Prop, LLC and Seth Kenney reiterate that the exercise of specific jurisdiction over them is unreasonable.

“Specific jurisdiction exists if: (1) the defendant has purposefully availed itself of forum benefits with respect to the matter in controversy; (2) the controversy is related to or arises out of the defendant's contacts with the forum; and (3) the assertion of jurisdiction would comport with fair play and substantial justice.” (Sonora Diamond Corp. v. Sup. Ct. (2000) 83 Cal. App.4th 523, 536.)

To determine whether general jurisdiction exists over a corporation, the inquiry is “whether that corporation's affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” (Daimler AG v. Bauman (2014) 571 U.S. 117, 138-139.)

            The Court finds that Plaintiffs have not proven by a preponderance of the evidence that this Court has personal jurisdiction over Defendants PDQ Arm and Prop, LLC and Seth Kenney. The matter in controversy is Plaintiffs’ injuries related to the accidental shooting and death of Halyna Hutchins. Plaintiffs have not shown how Defendants PDQ Arm and Prop, LLC and Seth Kenney purposefully availed themselves to the benefits of California with respect to this matter. The accident did not occur in California but in New Mexico. Furthermore, Plaintiffs have not shown how the accident is related to or arises out of Defendants PDQ Arm and Prop, LLC and Seth Kenney purported contacts with California. Although Defendants PDQ Arm and Prop, LLC and Seth Kenney supplied arms and ammunition for the set of Rust in October 2021, where the accident occurred, the arms and ammunition were sent to New Mexico. As such, the controversy is related or arises out of Defendants PDQ Arm and Prop, LLC and Seth Kenney’s contacts with the State of New Mexico not California.  Moreover, Plaintiffs argues that Defendant Seth Kenney’s vacation home in California makes it reasonable to exercise specific personal jurisdiction over him, which would not comport with fair play and substantial justice because its suggests that anyone owning property in a non-domicile state could be hauled into court in the non-domiciled state. Plaintiffs’ also fail to show the Court has general jurisdiction over Defendants PDQ Arm and Prop, LLC and Seth Kenney. Plaintiffs present evidence of Defendants PDQ Arm and Prop, LLC and Seth Kenney doing consulting work in California from 2010-2015, which is unrelated to the sales of arms and ammunition. Further, Plaintiffs only present one instance where Defendants PDQ Arm and Prop, LLC and Seth Kenney supplied arms and ammunition for a production in California, which was in July 2018. These contacts are insufficient to render Defendants PDQ Arm and Prop, LLC and Seth Kenney essentially at home in California. Lastly, Plaintiff has not demonstrated that discovery they seek during the requested stay of this motion would likely lead to evidence of facts establishing jurisdiction over Defendants PDQ Arm and Prop, LLC and Seth Kenney and did not point to particularized areas of inquiry that can likely establish disputed jurisdiction to meet its burden.

            Therefore, the motion to quash service of summons is GRANTED.

            It is so ordered.

Dated: March 4, 2024

_______________________

ROLF M. TREU

 Judge of the Superior Court