Judge Michael E. Whitaker, Case Number: 23SMCV03902, Date: 2023-12-15 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV03902, Date: 2023-12-15 Tentative Ruling

This case arises from an injury Plaintiff Jessica Dutkovic (“Plaintiff”) allegedly suffered while descending an outdoor staircase at a property owned and operated by Defendant Mauser Harmony with Nature Foundation, Inc. (“Mauser Harmony”) in Costa Rica.

Specially appearing Defendant Heather Marie Cook (“Cook”), director of Mauser Harmony, moves to quash service of the summons and complaint on the basis of lack of personal jurisdiction. Plaintiff opposes the motion and Cook replies.[1]

In opposition to Cook’s Motion, Plaintiff references exhibits to a Request for Judicial Notice filed in connection with Plaintiff’s opposition to Cook’s concurrently-filed motion to stay or dismiss for inconvenient forum. As such, the Court addresses the Request for Judicial Notice here as well.

Plaintiff requests the Court to take judicial notice of the following documents:

1. Exhibit 1 – the California Secretary of State website’s public entry for Mauser Harmony

2. Exhibit 2 – the Statement of Information Defendant prepared and publicly filed with the California Secretary of State

3. Exhibit 3 – the Michigan Department of Licensing and Regulatory Affairs public entry for Mauser Harmony

4. Exhibit 4 – the Statement and Designation by Foreign Corporation Mauser Harmony prepared and publicly filed with the Michigan Department of Licensing and Regulatory Affairs

5. Exhibit 5 – Mauser Harmony’s 2019 form 990-PF Return of Private Foundation prepared and publicly filed with the Internal Revenue Service

6. Exhibit 6 – a copy of Defendant Heather Cook’s LinkedIn page as of October 30, 2023

Official notices, statements, and certificates made by the Secretary of State or Franchise Tax Board are properly the subject of judicial notice as documents reflecting official acts of the executive department of the State of California, pursuant to Evidence Code, section 452, subdivision (c). (Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1483–1484.) Similarly, official notices, statements, and certificates made by the IRS are documents reflecting official acts of the executive department of the United States. However, “materials prepared by private parties and merely on file with the state [or federal] agencies” may not be properly judicially noticed as an official act of a legislative, executive, or judicial department of the United States or any state of the United States. (People v. Thacker (1985) 175 Cal.App.3d 594, 598.) Therefore, the Court grants Plaintiff’s request as to Exhibits 1 and 3. However, because Exhibits 2, 4, and 5 were all prepared and filed by a private party, they are not “official statements” made by the California Secretary of State, Michigan Department of Licensing and Regulatory Affairs, or the federal Internal Revenue Service. Therefore, the Court denies Plaintiff’s request for judicial notice as to Exhibits 2, 4, and 5.

The Court similarly denies Plaintiff’s request for judicial notice of Exhibits 6 and 7. It cannot be said that these website printouts are either “of such common knowledge” or “capable of immediate determination by resort to sources of reasonably indisputably accuracy” such that they cannot be reasonably subject to dispute.

“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.” (Code Civ. Proc., § 418.10, subd. (a)(1).)

“[W]hen jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts’ exist between the defendant and the forum state to justify imposition of personal jurisdiction.” (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) It is thus upon the plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232.)

Moreover, “on a challenge to personal jurisdiction by a motion to quash, the plaintiff has the burden of proving, by a preponderance of the evidence, the factual bases justifying the exercise of jurisdiction.” (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 209–210 (hereafter ViaView).) “The plaintiff must come forward with affidavits and other competent evidence to carry this burden and cannot simply rely on allegations in an unverified complaint.” (Id. at p. 210.) If plaintiff meets this burden, “it becomes the defendant’s burden to demonstrate that the existence of jurisdiction would be unreasonable.” (Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362.)

California’s long-arm statute grants its courts the power to assert personal jurisdiction over out-of-state parties to the maximum extent that the state and federal constitutions allow. (Code Civ. Proc., § 410.10.) Under the due process clause of the Fourteenth Amendment to the United States Constitution, state courts may exercise personal jurisdiction over nonresidents who have “minimum contacts” with the forum state. (International Shoe Co. v. Washington (1945) 326 U.S. 310, 316.) Minimum contacts exist when the relationship between the nonresident and the forum state is such that the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice.” (Id. at p. 316.) The primary focus of the personal jurisdiction inquiry is the relationship of the defendant to the forum state. (Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County (2017) 582 U.S. 255 (hereafter Bristol-Myers).)

“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.” (F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 795, citing World–Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 297; Kulko v. California Superior Court (1978) 436 U.S. 84, 92; Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269.)

Personal jurisdiction may be either general or specific. General (also called all-purpose) jurisdiction means that a defendant's contacts with a state are sufficiently extensive that the “defendant is ‘essentially at home,’ ” and the court may exercise jurisdiction over the defendant regardless of whether the claims relate to the forum state. (Ford Motor Company v. Montana Eighth Judicial District Court (2021) 141 S.Ct. 1017, 1024; Goodyear Dunlop Tires Operations, S. A. v. Brown (2011) 564 U.S. 915, 919.)

Specific personal jurisdiction hinges on the “ ‘relationship among the defendant, the forum, and the litigation.’ ” (Daimler AG v. Bauman (2014) 571 U.S.117, 133; accord Walden v. Fiore (2014) 571 U.S. 277, 284.) Such jurisdiction requires “ ‘an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.’ ” (Bristol-Myers, supra, 582 U.S. at p. 262.) Consistent with the constraints of due process, “the defendant’s suit-related conduct must create a substantial connection with the forum State.” (Walden v. Fiore, supra, 571 U.S. at p. 284.)

Further, “a nonresident defendant may be subject to the court's specific jurisdiction if three requirements are met: (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 exercise of jurisdiction would be reasonable and comports with fair play and substantial justice.” (ViaView, supra, 1 Cal.App.5th at p. 216.)

Cook challenges personal jurisdiction on the basis that, although she used to be a resident of California, she has resided in Costa Rica since 2017, and the incident in question occurred in Costa Rica. (See Cook Dec., ¶¶ 8, 11-16.)

In Opposition, the only evidence Plaintiff references are exhibits attached to a Request for Judicial Notice made in opposition to Cook’s concurrent motion to stay or dismiss for inconvenient forum. As discussed above, the Court takes judicial notice of the California Secretary of State and the Michigan Department of Licensing and Regulatory Affairs public corporate information page for Mauser Harmony. These pages indicate that Mauser Harmony maintains a mailing address in Van Nuys, California, and that the address for each of Mauser Harmony’s principals, including Defendant Cook, is in Van Nuys, California. (RJN Exhs. 2, 4.)[2]

The Court finds this evidence insufficient to rebut the Cook declaration, indicating that Cook’s parents and brother reside in California, but Mauser Harmony’s principal place of business is in Costa Rica, and Ms. Cook resides in Costa Rica, that Mauser Harmony does not maintain any offices in California or conduct any business in California. Therefore, the Court does not find either Cook’s contacts with California to be so continuous and systematic for her to be “essentially at home” in California to establish general jurisdiction.

With respect to specific jurisdiction, “A nonresident defendant may be subject to the court's specific jurisdiction if three requirements are met: (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 exercise of jurisdiction would be reasonable and comports with fair play and substantial justice.” (ViaView, supra, 1 Cal.App.5th at p. 216.)

The Court does not find any of these three prongs satisfied. Cook does not do business in California or target services to California residents. Thus, Cook has not purposefully availed herself of California benefits with respect to the matter in controversy.

To the extent Mauser Harmony has availed itself of California benefits by virtue of registering to do business as a foreign entity, Plaintiff does not establish how such registration would create personal jurisdiction over Cook. Moreover, the controversy at issue does not arise from Mauser Harmony’s registration to do business, or from Mauser Harmony’s business affairs, if any, in California. In short, Plaintiff has not demonstrated that the incident arose from this California registration or any business either Mauser Harmony or Cook conducted in or directed toward California.

Thus, exercising jurisdiction over Cook, a resident of Costa Rica, over an incident that occurred in Costa Rica, would not comport with fair play and substantial justice, notwithstanding that some of Mauser Harmony’s other principals apparently reside in California.

For the reasons stated, the Court grants Specially Appearing Defendant Cook’s Motion to Quash.

[1] The Court declines to consider the reply declarations of Won M. Park or Heather Marie Cook. In general, a reply cannot contain new evidence because it violates the moving party’s right to due process. (See, e.g., San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315 [“Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail”]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.)

[2] Plaintiff has not requested any additional jurisdictional discovery in opposition to Cook’s motion to quash.

This case arises from an injury Plaintiff Jessica Dutkovic (“Plaintiff”) allegedly suffered while descending an outdoor staircase at a property in Costa Rica.

Specially appearing Defendant Mauser Harmony with Nature Foundation, Inc. (“Defendant”) moves to quash service of the summons and complaint on the basis of lack of personal jurisdiction. Plaintiff opposes the motion and Defendant replies.[1]

In opposition to Defendant’s Motion, Plaintiff references exhibits to a Request for Judicial Notice filed in connection with Plaintiff’s opposition to Defendant’s concurrently-filed motion to stay or dismiss for inconvenient forum. As such, the Court addresses the Request for Judicial Notice here as well.

Plaintiff requests the Court to take judicial notice of the following documents:

1. Exhibit 1 – the California Secretary of State website’s public entry for Defendant

2. Exhibit 2 – the Statement of Information Defendant prepared and publicly filed with the California Secretary of State

3. Exhibit 3 – the Michigan Department of Licensing and Regulatory Affairs public entry for Defendant

4. Exhibit 4 – the Statement and Designation by Foreign Corporation Defendant prepared and publicly filed with the Michigan Department of Licensing and Regulatory Affairs

5. Exhibit 5 – Defendant’s 2019 form 990-PF Return of Private Foundation prepared and publicly filed with the Internal Revenue Service

6. Exhibit 6 – a copy of Defendant Heather Cook’s LinkedIn page as of October 30, 2023

“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.” (Code Civ. Proc., § 418.10, subd. (a)(1).)

Defendant challenges personal jurisdiction on the basis that it is a Michigan company with principal place of business in Costa Rica, and the incident occurred in Costa Rica. (Cook Decl. ¶¶ 3, 8, 11.) Although Defendant registered as a foreign business in California in 2013, and has three employees located in California (the brother and parents of Defendant’s director), Defendant does not maintain any offices in California, and has not conducted any business in California. (Cook Decl. ¶¶ 4-6.) The registered address for Defendant in California is the home of Defendant’s director’s brother, who is also Defendant’s California agent for service of process. (Ibid.) Defendant’s “only business” is operating an artist residency program in Costa Rica. (Cook Decl. ¶ 8.) Costa Rica is also where the alleged incident occurred. (Cook Decl. ¶¶ 8, 11.)

In Opposition, the only evidence Plaintiff references are exhibits attached to a Request for Judicial Notice made in opposition to Defendant’s concurrent motion to stay or dismiss for inconvenient forum. As discussed above, the Court takes judicial notice of the California Secretary of State and the Michigan Department of Licensing and Regulatory Affairs public corporate information page for Defendant. These pages indicate that Defendant maintains a mailing address in Van Nuys, California, and the address for each of Defendant’s principals is in Van Nuys, California. (RJN Exhs. 2, 4.)[2]

The Court finds this evidence insufficient to rebut the Cook declaration. Cook states that her parents and brother reside in California, but Defendant’s principal place of business is in Costa Rica, where Cook resides. Further Cook avers that Defendant neither maintains offices nor conducts any business in California. Therefore, the Court does not find Defendant’s contacts with California to be so continuous and systematic for Defendant to be “essentially at home” in California to establish general jurisdiction.

The Court does not find any of these three prongs satisfied. Defendant does not do business in California or target its services to California residents. Thus, Defendant has not purposefully availed itself of California benefits with respect to the matter in controversy.

To the extent Defendant has availed itself of California benefits by virtue of registering to do business as a foreign entity, the controversy at issue does not arise from Defendant’s registration to do business in California or from Defendant’s business affairs, if any, in California. In short, Plaintiff has not demonstrated that the incident arose from Defendant’s California registration or any business Defendant conducted in or directed toward California.

Thus, exercising jurisdiction over Defendant, a Michigan corporation with its principal place of business in Costa Rica, over an incident that occurred in Costa Rica, does not comport with fair play and substantial justice, notwithstanding that some of Defendant’s principals apparently reside in California.

For the reasons stated, the Court grants Specially Appearing Defendant’s Motion to Quash.

[2] Plaintiff has not requested any additional jurisdictional discovery in opposition to Defendant’s motion to quash.

TENTATIVE RULING - NO. 3

DEPARTMENT	207
HEARING DATE	December 15, 2023
CASE NUMBER	23SMCV03902
MOTION	Motion to Stay or Dismiss Due to Inconvenient Forum
MOVING PARTIES	Defendants Mauser Harmony with Nature Foundation, Inc. and Heather M. Cook
OPPOSING PARTY	Plaintiff Jessica Dutkovic

MOTION

This case arises from an injury Plaintiff Jessica Dutkovic (“Plaintiff”) allegedly suffered while descending an outdoor staircase at a property in Costa Rica.

Defendants Mauser Harmony with Nature Foundation (“Mauser Harmony”) and Heather M. Cook (“Cook”) (collectively, “Defendants”) move to stay or dismiss the instant action due to inconvenient forum. Plaintiff opposes the motion and Defendants reply.[1]

REQUEST FOR JUDICIAL NOTICE

Plaintiff requests the Court to take judicial notice of the following documents:

1. Exhibit 1 – the California Secretary of State website’s public entry for Mauser Harmony

2. Exhibit 2 – the Statement of Information Defendant prepared and publicly filed with the California Secretary of State

3. Exhibit 3 – the Michigan Department of Licensing and Regulatory Affairs public entry for Mauser Harmony

4. Exhibit 4 – the Statement and Designation by Foreign Corporation Mauser Harmony prepared and publicly filed with the Michigan Department of Licensing and Regulatory Affairs

5. Exhibit 5 – Mauser Harmony’s 2019 form 990-PF Return of Private Foundation prepared and publicly filed with the Internal Revenue Service

6. Exhibit 6 – a copy of Defendant Heather Cook’s LinkedIn page as of October 30, 2023

7. Exhibit 7 – a copy of Defendant Heather Cook’s online resume/CV

ANALYSIS

“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: . . . (2) To stay or dismiss the action on the ground of inconvenient forum.” (Code Civ. Proc., § 418.10, subd. (a)(2).) And “[w]hen a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” (Code Civ. Proc., § 410.30. subd. (a).)

“Forum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere. . . . We describe[] the basis of the doctrine as follows: There are manifest reasons for preferring residents in access to often overcrowded Courts, both in convenience and in the fact that broadly speaking it is they who pay for maintaining the Courts concerned. The injustices and the burdens on local courts and taxpayers, as well as on those leaving their work and business to serve as jurors, which can follow from an unchecked and unregulated importation of transitory causes of action for trial in this state require that our courts, acting upon the equitable principles, exercise their discretionary power to decline to proceed in those causes of action which they conclude, on satisfactory evidence, may be more appropriately and justly tried elsewhere.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 [cleaned up] (hereafter Stangvik).)

“On a motion for forum non conveniens defendant, as the moving party, bears the burden of proof. The granting or denial of such a motion is within the trial court's discretion, and substantial deference is accorded its determination in this regard.” (Stangvik, supra, 54 Cal.3d at p. 751.)[2]

“In determining whether to grant a motion based on forum non conveniens, a court must first determine whether the alternate forum is a “suitable” place for trial. If it is, the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California. The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation.” (Stangvik, supra, 54 Cal.3d at p. 751, emphasis added.)

1. Suitable Alternative Forum

As to the first issue in considering whether a forum is convenient or not, the “[s]uitability of an alternative forum is a threshold determination, not part of the discretionary analysis. But a forum is suitable if the defendant is amenable to process there, there is no procedural bar to the ability of courts of the foreign jurisdiction to reach the issues raised on their merits (or, if there is, the advantage of the bar—typically, the statute of limitations—is waived by defendants), and adjudication in the alternative forum is by an independent judiciary applying what American courts regard, generally, as due process of law.” (Boaz v. Boyle & Co. (1995) 40 Cal.App.4th 700, 711 [cleaned up] (hereafter Boaz).)

Here, Defendants have provided the declaration of Costa Rica attorney Nicole Preinfalk, indicating the following:

4. Costa Rican courts are available to non-Costa Rican citizens to file personal injury suits for incidents that occur in Costa Rica. In that regard, foreign citizens such as Plaintiff have the same rights to sue in Costa Rica as local citizens for injuries that occur in Costa Rica. See Costa Rica Civil Code, Article 1045. 22

5. I understand from the complaint that the incident occurred on or about April 15, 2022. Under Costa Rican law, Plaintiffs claims against the Foundation and Ms. Cook are not barred by the statute of limitations. See Costa Rica Civil Code, Articles 868 - 870.

6. I also understand that the Foundation, through a subsidiary Limited Liability Company, owns the EcoHouse which is located in Costa Rica at which it operates an artist residency program and that Ms. Cook is a temporary resident of and works in Costa Rica. Since the Foundation conducts business and owns property in Costa Rica and Ms. Cook is a resident of Costa Rica, Costa Rican courts have jurisdiction over them and if found liable to Plaintiff, an enforceable judgment can be entered against the Foundation and/or Ms. Cook.

(Preinfalk Decl. ¶¶ 4-6.) Thus, Costa Rica is a suitable alternative forum.

2. Private Interests

“The private interests—those involving the litigants—include: the relative ease of access to sources of proof; availability of process to summon the unwilling, and the cost of obtaining attendance of the willing; the possibility of a view if that is a factor; enforceability of a judgment if one is obtained; and all other practical problems that make trial of a case easy, expeditious and inexpensive. (Boaz, supra, 40 Cal.App.4th at p. 707 [cleaned up].)

Here, Defendants contend Costa Rica is a superior forum because Cook is a resident of Costa Rica, Mauser Harmony’s principal place of business is in Costa Rica, and Plaintiff’s alleged injury occurred in Costa Rica. (Cook Decl. ¶¶ 8-9, 12-15.) Therefore, the evidence concerning inspecting the premises at issue and interviewing witnesses and the Costa Rican owners of the subject property, etc., are all located in Costa Rica.

Plaintiff counters that Plaintiff is a resident of Southern California, and “has received extensive treatment for the serious injuries she sustained from medical providers in the Southern California area.” (Gunther Decl. ¶ 9.) Plaintiff also points out that the other corporate officers and directors of Mauser Harmony reside in California. (Opp. at pp. 7-8.)

As discussed in the concurrent orders regarding Defendants’ motions to quash service of the summons, California lacks personal jurisdiction over both of the named Defendants with respect to this action. Thus, although some of the evidence and witnesses are located in California, California is not a suitable forum as to the only two currently named Defendants.

3. Public Interests

“Public interest factors include court congestion; the burden of jury service imposed on members of a community having no relation to the litigation; holding trial in the view of persons concerned, rather than at a remote location; and the problems of the forum court untangling law of another jurisdiction.” (Boaz, supra, 40 Cal.App.4th at p. 707 [cleaned up].)

As to these issues, Costa Rica has more of an interest in adjudicating this case than California does, as the incident concerns the condition of real property located in Costa Rica. Thus, Costa Rican law regarding negligence and premises liability apply to the instant case. Moreover, Defendants do not specifically market to or otherwise target California residents. Thus, Costa Rica –not California– is the forum with primary and legitimate concern over the resolution of this litigation.

Further, it is axiomatic that California trial courts are undoubtedly congested especially in the County of Los Angeles. This Court also recognizes that jury service remains a problem even as California and the County of Los Angeles recovers from the Covid-19 pandemic.

4. Jurisdictional Discovery

In opposition, Plaintiff requests, “as an alternative argument” that “the Court defer the ruling on Defendants’ motion and allow the parties to conduct additional discovery on the pertinent issues to accurately ascertain the extent of Defendants’ contacts with CA. The Court denies this request. The Court notes that Plaintiff did not request jurisdictional discovery in connection with either of the Defendants’ Motions to Quash Service of the Summons for lack of Personal Jurisdiction, and the Court has determined that it lacks personal jurisdiction over both Defendants. Plaintiff has also not met her burden to demonstrate what jurisdictional discovery it intends to conduct or facts it expects to uncover.

CONCLUSION AND ORDER

In considering the suitability of the alternative forum, the private and public interests herein, and balancing all of the relevant factors in light of the evidence presented by the parties, the Court finds Defendants have met their burden of establishing that Costa Rica is a superior forum to litigate Plaintiffs’ claims as opposed to California.

Therefore, the Court grants Defendants’ motion to dismiss for inconvenient forum per Code of Civil Procedure section 418.10, and dismisses Plaintiffs’ complaint without prejudice.

Defendants shall provide notice of this Court’s ruling and file a proof of service of such.

DATED: December 15, 2023 ___________________________

Michael E. Whitaker

Judge of the Superior Court

[2] On a motion to stay or dismiss for inconvenient forum, the moving party bears the burden to produce sufficient evidence to enable the court to consider all relevant factors. (See National Football League v. Fireman's Fund Ins. Co. (2013) 216 Cal.App.4th 902, 926-927.)