Judge Randolph M. Hammock, Case Number: 24STCV11227, Date: 2024-10-11 Tentative Ruling

Plaintiff Monica Sanchez brings this action against Defendant Marriott International for alleged violations of the California Invasion of Privacy Act. Plaintiff alleges that Defendant used spyware on its website to obtain Plaintiff’s personal data.

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) [t]o 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).) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at pp. 1441-1442.) 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.) “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.)

Plaintiff alleges she “recently visited” Defendant’s Website, and “without Plaintiff’s knowledge or consent, Defendant secretly accessed Plaintiff’s device and installed ‘pen register’ and ‘trap and trace’ tracking software in violation of California law.” (Compl., Introduction.) Plaintiff asserts one cause of action for a violation of section 638.51(a) of the California Penal Code.

For a corporation, general jurisdiction exists only in the defendant’s state of incorporation or principal place of business. (Goodyear Dunlop Tires Operations, S.A. v. Brown¿(2011) 131 S.Ct. 2846, 2856-2857; Daimler AG v. Bauman¿(2014) 134 S.Ct. 746, 749-750; BNSF Ry. Co. v. Tyrrell¿(2017) 137 S.Ct. 1549, 1558.) “[C]ontacts that are random, fortuitous, or attenuated do not rise to the minimum level, and general jurisdiction cannot be exercised under these circumstances.” (F. Hoffman-La Roche, Ltd. v. Superior Ct. (2005) 130 Cal. App. 4th 782, 795.) “[I]n an ‘exceptional case,’ a corporate defendant's operations in another forum ‘may be so substantial and of such a nature as to render the corporation at home in that State.’” (BNSF Ry. Co. v. Tyrrell, supra, 137 S.Ct. at p. 1558 (citing Daimler AG v. Bauman, supra, 134 S.Ct. at p. 761 (footnote 19).)

Defendant argues the court lacks general jurisdiction over it because it does not maintain minimum contacts in California. Marriott is incorporated in Delaware with a principal place of business in Maryland. (Tamburello Decl. ¶ 4.) Only about 6.4% of the properties in Marriott International’s portfolio are located in California. (Id. ¶ 8.)

However, the “designation of an agent for service of process and qualification to do business in California alone are insufficient to permit general jurisdiction.” (Thomson v. Anderson (2003) 113 Cal. App. 4th 258, 268.) Here, the court finds that general jurisdiction does not exist because Defendant’s principal place of business is in Maryland. Despite the fact that Defendant might operate properties in California, this is not the “exceptional case” where the contacts are “so substantial and of such a nature as to render” Marriott “at home in” California. (BNSF Ry. Co. v. Tyrrell, supra, 137 S.Ct. at p. 1558.)

The court now addresses 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 contact with the forum; and (3) the exercise of jurisdiction would be reasonable and comports with fair play and substantial justice.” (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 216 (citing Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269).) “‘The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant ‘focuses on the relationship among the defendant, the forum, and the litigation.’” (Id. (citing Walden v. Fiore (2014) 571 U.S. 277, 282-85).) “For a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State.” (Id.) The “’minimum contacts’ analysis looks to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there.” (Walden v. Fiore (2014) 571 U.S. 277, 285.)

The burden is on Plaintiff to establish the facts necessary for jurisdiction. (See Ziller Elecs. Lab GmbH v. Superior Ct. (1988) 206 Cal. App. 3d 1222, 1232–33 [“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.”].)

Plaintiff argues the court has specific jurisdiction over Marriott because it has “purposeful avail[ed] or “purposeful[ly] direct[ed]” its activities at California.” (Opp. 10: 3.) Plaintiff notes that Marriott does business in California and operates properties here.

However, there is no relationship between these general business contacts and the privacy-related harm actually issue in the Complaint. (See ViaView, Inc., supra, 1 Cal.App.5th at 216 [for personal jurisdiction, the controversy must be “related to or arise[] out of the defendant’s contact with the forum”].) The court therefore confines its analysis to the Defendant’s website.

To this point, Plaintiff argues that Marriott maintains an “highly interactive and commercial” website. Plaintiff relies on the “sliding scale” test set forth in Zippo Mfg. Co. v. Zippo Dot Com, Inc. 952 F. Supp. 1119 (W.D. Pa. 1997).) [FN 1] “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.” (Zippo, at p. 1124.)

But as argued by Defendant, there is no evidence that Defendant specifically targets California residents through its website. Like in Jacqueline B., Marriott “operated a website that could be accessed by California residents, but the website did not target California residents specifically and it was plaintiff who first contacted defendants.” (Jacqueline B. v. Rawls L. Grp., P.C. (2021) 68 Cal. App. 5th 243, 254.) Therefore, Defendant’s suit-related conduct does not create the necessary connection with California. Accordingly, the court cannot exercise personal jurisdiction over it.

The court notes that this conclusion is consistent with a very recent, nearly identical matter against Marriott. In Heiting v. Marriott Int'l, Inc., No. 2:23-CV-10822-JLS-MAA, 2024 WL 3751276, (C.D. Cal. Aug. 5, 2024), in an action by a California resident against Marriott for violations of California Invasion of Privacy Act, the U.S. District Court for the Central District of California concluded personal jurisdiction did not exist over Marriott on effectively the same grounds. While this federal authority is not binding, the court does find its analysis persuasive. (See People v. Bradford (1997) 15 Cal.4th 1229, 1292.)