I. BACKGROUND 

Plaintiff Miltita Casillas (“Plaintiff”) filed this action against defendant Hanesbrands Inc. dba www.maidenform.com (“Defendant”) for violation of California Invasion of Privacy Act (“CIPA”). 

On May 2, 2024, Defendant filed a demurrer to Plaintiff’s complaint on the grounds that CIPA does not apply to its website collecting an IP address within the meaning of a “pen register” or “trap and trace” technology of the statute. The demurrer is directed at Plaintiff’s initial complaint. 

On May 2, 2024, Defendant also filed a motion to quash service of summons on the grounds of lack of personal jurisdiction. Plaintiff opposes the motion, and Defendant filed a reply. 

The motions were set to be heard on July 15, 2024. 

II. DEMURRER 

On July 1, 2024, Plaintiff filed a First Amended Complaint (“FAC”) within the time prescribed by CCP § 472. An amended complaint supersedes all prior complaints. (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130-31.) The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment. (Ibid.)  Since there is but one complaint in a civil action, the filing of an amended complaint moots a motion directed to a prior complaint. (Ibid.) 

Defendant’s demurrer to Plaintiff’s complaint is therefore moot. 

III. MOTION TO QUASH SERVICE OF SUMMONS 

California’s long-arm statute permits a court to exercise personal jurisdiction on any basis consistent with state or federal constitutional principles. (C.C.P. §410.10.) 

“Personal jurisdiction may be either general or specific. A nonresident defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are ‘substantial . . . continuous and systematic.’ In such a case, ‘it is not necessary that the specific cause of action alleged be connected with the defendant’s business relationship to the forum.’ Such a defendant’s contacts with the forum are so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445-446 (citations omitted).) 

“If the nonresident defendant does not have substantial and systematic contacts in the forum sufficient to establish general jurisdiction, he or she still may be subject to the specific jurisdiction of the forum, if the defendant has purposefully availed himself or herself of forum benefits, and the ‘controversy is related to or ‘arises out of’ a defendant’s contacts with the forum.’” (Id. at pg. 446, citations omitted.) The purposeful availment test is only satisfied if the defendant purposefully and voluntarily directs its activities toward California so that the defendant should expect, because of the benefits it receives, to be subject to jurisdiction here based on its contacts with California. (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.)  Purposeful availment occurs when a nonresident defendant purposefully directs its activities at California residents, deliberately engages in significant activities here, or creates “continuing obligations” between itself and California residents. (Id. at pg. 1063.) 

“When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (Vons, supra, 14 Cal.4th 434 at 449 (citations omitted).) 

Plaintiff requests the Court take judicial notice of Minute Orders filed (1) on September 11, 2023 in Hernandez v. Datatracks, Inc., No. 23STCV16470, (2) November 9, 2023 in Licea v. JNT Company, LLC, No. 23STCV16244, (3) on February 9, 2024 in Licea v. DAC Group/New York, Inc., No. 23STCV15816, (4) on May 1, 2024 in Valenzuela v. Livechat, Inc., No. 30-2023-01333056-CU-CR-NJC, and (5) on June 14, 2024 in Byars v. Bio Clarity LLC, No. 24STCV01349. Defendant opposes the request. 

The Court may take judicial notice of records of any court of record of the United States. (Evid. Code § 452(d)(2).) The Court “shall” take judicial notice of any matter specified in Section 452 if a party requests it, there is adequate notice and the Court is furnished with sufficient information to enable it to take judicial notice of the matter. (Evid. Code § 453.) Therefore, the request for judicial notice is GRANTED to the extent of their existence. However, the Court does not take judicial notice of the truth of the matters within the documents. (See C.R. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 110.) 

Defendant argues that it is a non-California resident headquartered in Maryland, and that its principal place of business is in Winston-Salem, North Carolina. Defendant asserts that Plaintiff, a self-proclaimed “tester”, visited the website www.maidenform.com (“Website”) to test whether it worked, and filed suit based upon the collection of Plaintiff’s IP address. Defendant argues that this Court has no personal jurisdiction over it, because Defendant has not purposely directed acts toward California. Defendant asserts that the “recording” of Plaintiff’s visit to its website and collection of data would happen regardless of which state Plaintiff sat in, and that Defendant therefore did not direct any specific conduct at California or at California residents. Defendant contends that Plaintiff cannot meet her burden that either general or specific jurisdiction exists over it. 

The initial burden is on Plaintiff to demonstrate that jurisdiction is proper. (Milhon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) Plaintiffs must meet their initial burden by a preponderance of competent and relevant evidence, as shown in affidavits and documentary evidence. (See Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232-1233.) 

Defendant argues there is no general jurisdiction over it in California. General jurisdiction is an “exacting standard” which requires that the defendant's contacts with the forum state be both “substantial and continuous” as to “make it consistent with traditional notions of fair play and substantial justice to subject the defendant to the jurisdiction of the forum, even where the cause of action is unrelated to the contacts.” (Calvert v. Huckins (1995) 875 F. Supp. 674, 677.) 

The bulk of the parties’ concentrated arguments concern specific jurisdiction, rather than general jurisdiction. However, because it was raised by Defendant, the Court addresses this point briefly, and finds that Defendant’s activities in the forum are not pervasive enough to support the exercise of general jurisdiction. 

Specific jurisdiction involves a three-part test in California.¿" "A court may exercise specific jurisdiction over a nonresident defendant only if: (1) “the defendant has purposefully availed himself or herself of forum benefits” [citation]; (2) “the ‘controversy is related to or “arises out of” [the] defendant's contacts with the forum’ ” [citation]; and (3) “ ‘the assertion of personal jurisdiction would comport with “fair play and substantial justice” ’ ” [Citations]." " (Pavlovich v. Superior Ct. (2002) 29 Cal. 4th 262, 269.) 

In the context of internet activity for jurisdictional purposes, the California Supreme Court adopted the “sliding scale” test set forth as follows:  

“At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. [Citation.] At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. [Citation.] The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.” 

(Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 274, quoting Zippo Mfg. Co. v. Zippo Dot Com, Inc. (W.D.Pa. 1997) 952 F. Supp. 1119, 1124 (Zippo).) 

Plaintiff argues that, under the sliding-scale test described in Zippo, Defendant’s Website has a high level of interactivity because it functions as an online store in which users can purchase products. Further, Plaintiff asserts Defendant is aware that its Website customers are Californians, because the Website contains a webpage devoted to disclosing Defendant’s efforts to comply with the California Transparency in Supply chains Act of 2010, and the Privacy Policy addresses the California Consumer Privacy Act of 2018. As such, Plaintiff contends that Defendant has deliberately engaged in online marketing toward Californians to purchase underwear-related products. Further, Defendant owns and operates retail stores in California, as advertised on its Website, with the intention of doing business with Californians and is registered to do business in California. (Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme (9th Cir. 2006) 433 F.3d 1199, 1207 [“In any personal jurisdiction case we must evaluate all of a defendant's contacts with the forum state, whether or not those contacts involve wrongful activity by the defendant.”].) 

Defendant, in reply, Plaintiff improperly relies on the declaration submitted by her counsel. However, whether it be Plaintiff or Plaintiff’s counsel providing facts about the Website is not material, since either can establish personal knowledge by visiting the Website and exploring its contents. Defendant also argues that even if Plaintiff’s declaration was deemed appropriate, that there is a timing difference between Plaintiff’s declaration and her counsel’s, namely that Plaintiff submits she accessed the Website in January 2024, but Plaintiff’s counsel provides that he accessed the Website on June 25, 2024. However, the analysis of purposeful availment considers “defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” (World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 297.) “[T]he “ ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts [citations], or of the ‘unilateral activity of another party or a third person.’ [Citations.]” (Pavlovich, supra, 29 Cal. 4th at 269.) For example, the Pavlovich Court did not focus its inquiry solely on the posting of source code containing propriety information on an Internet Web site accessible to any person with Internet access. Rather, in addressing the issue of whether there was sufficient evidence of intentional conduct targeting California, the court also noted that Pavlovich never worked in California, nor did he have property, bank accounts, or telephone number in California, and that neither he nor his company solicited or transacted any business in California. (Id. at 273.) Although the Court does not believe the negative inferences made by Plaintiff regarding the Pavlovich case necessarily dictate the finding of purposeful availment here. Plaintiff has sufficiently demonstrated that, outside of its Website, Defendant has multiple retail stores in California and is registered to do business in California. In addition, Defendant’s website points to the California Transparency in Supply Chains Act of 2010, and the California Consumer Privacy Act of 2018. Thus, the Court finds that Defendant has purposefully availed itself to California, since its contact with this State goes beyond merely creating a site and placing a product into the stream of commerce.