Judge: Melissa R. Mccormick, Case: "Lieberman v. Price, et al.", Date: 2023-08-03 Tentative Ruling
Defendants Julie Moss’s and Kelly Price’s Motions to Quash Service of Summons and Complaint or, in the alternative, to Dismiss or Stay Case for Inconvenient Forum
Defendants Julie Moss and Kelly Price move pursuant to Civil Procedure Code section 418.10 to quash service of the summons and complaint and to dismiss the action for lack of personal jurisdiction. Defendants move in the alternative to dismiss or stay the action for inconvenient forum. For the following reasons, defendant’s motion to quash is granted. Defendants’ alternative motion to dismiss or stay the action for inconvenient forum is denied as moot.
Plaintiff alleges he resided in Orange County, California “at all times relevant,” and defendants Julie Moss, Kelly Price, and Sarah Foss reside in McLennan County, Texas. Plaintiff alleges defendants violated California Penal Code sections 630 through 637.5 by surreptitiously recording “at least one” telephone conversation with plaintiff without his knowledge or consent. Complaint ¶¶ 8, 9. Plaintiff alleges on information and belief that at an unspecified time Price initiated a telephone call from Napa County, California to plaintiff in Orange County, California, and included Moss and Foss in the call. Id. ¶ 10. Plaintiff alleges the call “concern[ed] a theft of Plaintiff’s personal property.” Id. Plaintiff alleges he did not know the call was being recorded and did not consent to the recording. Id. Plaintiff alleges defendants’ surreptitious recording of the call caused him damages and emotional distress. Id. ¶ 12.
When a nonresident defendant moves to quash service of a summons for lack of specific jurisdiction, the plaintiff has the initial burden of demonstrating, by a preponderance of the evidence, facts justifying the exercise of jurisdiction. Ziller Electronics Lab GmbH v. Superior Ct. (1988) 206 Cal.App.3d 1222, 1232-33; Sacramento Suncreek Apts., LLC v. Cambridge Advantaged Props. II, L.P. (2010) 187 Cal.App.4th 1, 9. The plaintiff must do more than allege jurisdictional facts; the plaintiff must provide affidavits and other authenticated documents that demonstrate competent evidence of jurisdictional facts. BBA Aviation PLC v. Superior Ct. (2010) 190 Cal.App.4th 421, 428-29; Ziller, 206 Cal.App.3d at 1233. Once the plaintiff has met its initial burden, the burden shifts to the defendant to present “a compelling case” that the exercise of jurisdiction would be unreasonable. BBA Aviation PLC, 190 Cal.App.4th at 429. When evaluating the evidence presented in a motion to quash, the court may ignore incompetent evidence, whether or not the party against whom the evidence is presented objects to the evidence. Inselberg v. Inselberg (1976) 56 Cal.App.3d 484, 489.
Personal jurisdiction over a nonresident defendant may be either general or specific. Daimler AG v. Bauman (2014) 134 S.Ct. 746, 754-55. Whether a court has general or specific jurisdiction depends on the extent and nature of the defendant’s activities in California. General jurisdiction exists when a nonresident has substantial, continuous, and systematic contacts with the forum state. Such wide-ranging contacts take the place of physical presence in the state as a basis for jurisdiction. Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 1315 S.Ct. 2846, 2851. Only a limited set of affiliations with a forum will make a nonresident defendant amenable to all-purpose jurisdiction there. Daimler, 134 S.Ct. at 760. For general jurisdiction purposes, a nonresident defendant’s contacts must be comparable to a domestic enterprise in the state. Id. at 758 n.11, 761.
Plaintiff has presented no evidence or argument that the court has general personal jurisdiction over either Moss or Price. Defendants have presented evidence they are Texas residents, they have never resided in California, they have not done business in California, and the have never owned property in California.
When a nonresident defendant does not have sufficient contacts with California for general jurisdiction, the defendant may be subject to specific jurisdiction if she has purposefully availed herself of the benefits of doing business in California and the cause of action is related to or arises from her contacts with California. J. McIntyre Mach., Ltd. v. Nicastro (2011) 131 S.Ct. 2780, 2787-88; Epic Communications, Inc. v. Richwave Tech., Inc. (2009) 179 Cal.App.4th 314, 327. The exercise of jurisdiction must also comport with fair play and substantial justice. Id.; Vons Companies Inc. v. Seabest Foods (1996) 14 Cal.4th 434, 446-47.
The inquiry regarding whether a forum state may assert specific jurisdiction over a nonresident defendant focuses on the relationship among the defendant, the forum, and the litigation. Walden v. Fiore (2014) 134 S.Ct. 1115, 1121. For a court to exercise specific jurisdiction over a claim, there must be an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum state. Bristol-Myers Squibb Co. v. Superior Ct. (2017) 137 S.Ct. 1773, 1781.
As an initial matter, while not dispositive of defendants’ motions, the court observes that plaintiff has not refuted defendants’ evidence demonstrating plaintiff does not reside in California and did not reside in California at the time Price recorded the call with plaintiff on September 24, 2019. Defendants have presented evidence plaintiff obtained a Texas driver’s license on December 28, 2018, that the driver’s license expires on November 29, 2025, and that Texas only issues driver’s licenses to applicants who show they reside in Texas. Defendants have presented evidence plaintiff purchased a property in McLennan County, Texas on November 9, 2018 for which plaintiff obtained homestead exemption status, which requires a showing the property is the owner’s primary residence. Defendants have presented evidence plaintiff filed a document with the Texas Secretary of State on December 6, 2018 that states plaintiff was an individual resident of Texas as of November 9, 2018. Defendants have presented evidence plaintiff filed a second document with the Texas Secretary of State on July 3, 2019 that states plaintiff was an individual resident of Texas as of July 3, 2019. Plaintiff does not deny any of the above facts, and did not object to any of defendants’ evidence. Indeed, plaintiff himself does not unequivocally state he resided in California when Price recorded the call, and he acknowledges moving to Texas sometime before 2020. See Lieberman Decl. ¶ 3 (“From January through approximately September of 2019, I was living at the home I owned located at 495 E. Collins Ave., Orange, CA 92867 . . . .”) (italics added); id. ¶ 8.
More significantly, defendants have also presented evidence that neither Moss nor Price purposefully availed herself of California benefits or took specific actions directed at California, and plaintiff has not presented evidence his cause of action is related to or arises from either Moss’s or Price’s alleged contacts with California. Moss has presented evidence she was in New Orleans, Louisiana when Price recorded the call with plaintiff (and Moss asserts she did not participate in the call). Plaintiff does not dispute Moss’s evidence she was in Louisiana when Price recorded the call. Price has presented evidence that when she recorded the call with plaintiff on September 24, 2019, she was in Texas, she understood plaintiff to be a Texas resident, and she believed plaintiff was in or on his way to Texas. Plaintiff’s only evidence in opposition is his declaration, much of which consists of speculation for which plaintiff provides no foundation. Plaintiff does not dispute Price’s evidence that she texted, not called, plaintiff from Sonoma, California on September 28, 2019, and plaintiff does not dispute Price’s evidence that she called plaintiff from Texas on September 24, 2019.
In sum, plaintiff has not presented any admissible evidence either defendant was in California when Price recorded the call with plaintiff, nor has plaintiff presented any admissible evidence Price knew plaintiff allegedly was in California when Price recorded the call. The evidence presented demonstrates a dispute between Texas residents arising out of events in Texas. For the above reasons, the exercise of jurisdiction over defendants in California would not comport with fair play and substantial justice.
Defendants’ Evidentiary Objection Nos. 1 through 4 are sustained. Defendants’ Evidentiary Objection No. 5 is overruled.
Clerk to give notice.
Case Management Conference
The Case Management Conference is continued to October 19, 2023 at 1:30 p.m. in Department C13 to be heard with the motion to quash.
Clerk to give notice.