Judge: Teresa A. Beaudet, Case: 22STCV22737, Date: 2023-10-04 Tentative Ruling

Case Number: 22STCV22737    Hearing Date: October 4, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Punk Me Tender (“Plaintiff”) filed this action on July 14, 2022 against Defendants Onessimo Fine Art and Debra Onessimo. The Complaint asserts causes of action for (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) breach of implied contract, (4) professional negligence, (5) unjust enrichment, (6) conversion, (7) fraudulent misrepresentation, and (8) unfair competition.

In the Complaint, Plaintiff alleges that in or around October 2021, defendants entered talks with Plaintiff regarding an agreement whereby Onessimo Fine Art would exhibit and sell Plaintiff’s artworks at art fairs in the Miami area and at Onessimo Fine Art. (Compl., ¶ 9.) On or around November 2, 2021, and at defendants’ request, Plaintiff sent defendants a consignment agreement consistent with the parties’ discussions (the “Agreement”), and on or around November 2, 2021, defendants objectively communicated their acceptance of the Agreement, indicating their intent to be bound by its terms. (Compl., ¶ 9.)

The Complaint alleges that per the terms of the Agreement, Plaintiff granted Onessimo Fine Art the exclusive right to sell and exhibit certain pieces from Plaintiff’s art collection (the “First Collection”) for a period of not more than three months. (Compl., ¶ 10.) On or around November 22, 2022, Plaintiff and defendant agreed to consign additional pieces owned by Plaintiff to defendant (the “Second Collection”). (Compl., ¶ 17.) On March 15, 2022, Plaintiff requested that defendants return the First Collection and Second Collection. (Compl., ¶ 21.) On or around March 24, 2022, Plaintiff was made aware that piece #312 from the Second Collection was irreparably damaged. (Compl., ¶ 22.) In April of 2022, defendants shipped some of Plaintiff’s works back to Plaintiff, and on or around April 26, 2022, Plaintiff received the shipment. (Compl., ¶¶ 23-24.) Upon inspection of the artwork, Plaintiff found that certain pieces from the collections were damaged. (Compl., ¶ 24.) In addition, certain items were missing. (Compl., ¶ 24.)

Plaintiff alleges that defendants breached the Agreement by, inter alia, (i) failing to return to Plaintiff possession of the First Collection by February 10, 2022, (ii) failing to return to Plaintiff possession of the missing artworks within 30 days of April 4, 2020, (ii) failing to return to Plaintiff possession of the missing artworks at any date to present, (iii) failing to provide a certificate of insurance to Plaintiff, (iv) failing to insure the collections, (v) failing to compensate Plaintiff the net artist’s price of each of the damaged and missing artworks, (vi) failing to pay Plaintiff the net artist’s price within 10 days of the sale of pieces #130 and #313, and (vii) failing to compensate Plaintiff the net artist’s price for pieces #130 and #313, which defendants purported to have sold. (Compl., ¶ 34.)  

On August 2, 2022, Plaintiff filed proofs of service indicating that Onessimo Fine Art was served with the summons and Complaint on July 27, 2022 by personal service, and that Debra Onessimo was served with the summons and Complaint on July 30, 2022 by personal service.

Specially appearing defendants Debra Onessimo Fine Arts, Inc. dba Onessimo Fine Art (“Onessimo Fine Art”) and Debra Onessimo (jointly, “Defendants”) move for an order quashing the purported service of summons on them and dismissing the claims against them for lack of personal jurisdiction. Plaintiff opposes.

On May 17, 2023, the Court issued an Order continuing the hearing on the instant motion to September 18, 2023 to allow Plaintiff to conduct discovery on jurisdictional issues.[1] The Court’s May 17, 2023 Order provides, inter alia, that “Plaintiff may conduct discovery on jurisdictional issues only. Plaintiff may file a supplemental opposition to the instant motion and Defendants may file a supplemental reply. Any supplemental opposition and reply papers must be filed and served per Code of Civil Procedure section 1005, subdivision (b) based on the new hearing date.” (Order at p. 11:17-20.)

On September 5, 2023, Plaintiff filed a supplemental opposition to Defendants’ motion to quash service of summons. On September 11, 2023, Defendants filed a supplemental reply in support of the motion.

Evidentiary Objections

The Court rules on Defendants’ evidentiary objections as follows:

Objection No. 1: sustained

Objection No. 2: overruled

Objection No. 3: overruled

Objection No. 4: overruled

Objection No. 5: overruled

Objection No. 6: overruled

Discussion

Code of Civil Procedure section 418.10 provides in part: “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 … (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).)

“California courts may exercise jurisdiction on any basis that is not inconsistent with the state and federal Constitutions. Thus, the inquiry in California is whether the assertion of personal jurisdiction comports with the limits imposed by federal due process.” (Young v. Daimler AG (2014) 228 Cal.App.4th 855, 865 [internal quotations and citations omitted].) Due process permits courts to exercise personal jurisdiction over nonresidents who have “minimum contact” with the forum state such that the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice.” (Int’l Shoe Co. v. Wash. (1945) 326 U.S. 310, 316.)

“Personal jurisdiction may be either general or specific.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445.) “A defendant that has substantial, continuous, and systematic contacts with the forum state is subject to general jurisdiction in the state, meaning jurisdiction on any cause of action.” (HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1167.) A nonresident may be subject to specific jurisdiction if a three-prong test is met. “First, the defendant must have purposefully availed itself of the state’s benefits. Second, the controversy must be related to or arise out of the defendant’s contacts with the state. Third, considering the defendant’s contacts with the state and other factors, California’s exercise of jurisdiction over the defendant must comport with fair play and substantial justice.” (Gilmore Bank v. AsiaTrust New Zealand Ltd. (2014) 223 Cal.App.4th 1558, 1568 (emphasis in original) [internal citations omitted].)

“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 Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at p. 449 [internal citations omitted].)

            As set forth in the Court’s May 17, 2023 Order, Defendants assert that neither Onessimo Fine Art nor Debra Onessimo has sufficient contacts with California to support general jurisdiction. Defendants provide evidence that Debra Onessimo Fine Arts, Inc. does business under the name Onessimo Fine Art. (Onessimo Decl., ¶ 3.) Debra Onessimo Fine Arts, Inc. was incorporated in the State of Florida in 2001, and its principal place of business has always been in Florida. (Onessimo Decl., ¶ 3; see also Compl., ¶ 2 [alleging that Onessimo Fine Art has “its principal place of business in the County of Palm Beach, State of Florida”].) Debra Onessimo Fine Arts, Inc. has never had any offices or employees in the State of California, nor does it own any property in the State of California. (Onessimo Decl., ¶ 3.) In addition, Onessimo Fine Art’s business with Plaintiff was conducted entirely in the State of Florida. (Onessimo Decl., ¶ 8.)

            Defendants also provide evidence that Debra Onessimo has never been a resident of the State of California and has never owned any real property in California. (Onessimo Decl., ¶ 4.) Debra Onessimo does no business in the State of California, and she has never had any offices or employees in the State of California. (Onessimo Decl., ¶ 4.) The last time Debra Onessimo was physically in the State of California was years before Debra Onessimo Fine Arts, Inc. began displaying Plaintiff’s artwork. (Onessimo Decl., ¶ 4.)

            In the opposition, Plaintiff does not appear to dispute Defendants’ assertion that they are not subject to general jurisdiction in California. (See Opp’n at p. 6:19-21, “Defendants persuasively argue that neither the Gallery nor Ms. Onessimo have sufficient contacts with California to subject them to the general jurisdiction of California courts.”)

            However, Plaintiff asserts that California courts have personal jurisdiction over Defendants because they consented to California law and entered into a transaction with Plaintiff in excess of $250,000.00. Plaintiff also makes this argument in its supplemental opposition to the instant motion. Civil Code section 1646.5 provides, inter alia, that “[n]otwithstanding Section 1646, the parties to any contract, agreement, or undertaking, contingent or otherwise, relating to a transaction involving in the aggregate not less than two hundred fifty thousand dollars ($250,000), including a transaction otherwise covered by subdivision (a) of Section 1301 of the Commercial Code, may agree that the law of this state shall govern their rights and duties in whole or in part, whether or not the contract, agreement, or undertaking or transaction bears a reasonable relation to this state.”[2]

            The Court’s May 17, 2023 Order on the instant motion provides, inter alia, that “[a]s Defendants note, Plaintiff cites to allegations of the Complaint in support of the assertion that Civil Code section 1646.5 applies here. Plaintiff has not proffered any evidence of a contract with a California choice-of-law clause.” (Order at p. 6:13-15.) In the supplemental opposition, Plaintiff asserts that “[t]he Gallery’s discovery responses are admissions by Ms. Onessimo that the Gallery entered into the Second Consignment Agreement, which covered artwork valued at $858,000.” (Suppl. Opp’n at p. 5:12-14, emphasis omitted.)[3]

Plaintiff’s counsel provides a copy of Onessimo Fine Art’s responses to Plaintiff’s first set of special interrogatories in connection with the supplemental opposition. (Greene Decl., ¶ 3, Ex. A.) Plaintiff’s Special Interrogatory No. 9 provides, “IDENTIFY any contractual agreement YOU entered into with any California-based artist or entity in the last five (5) years.” (Greene Decl., ¶ 3, Ex. A, p. 10.) Onessimo Fine Art’s response to Plaintiff’s Special Interrogatory No. 9 provides, inter alia, “[s]ubject to and without waiving the foregoing general and specific objections, Debra Onessimo Fine Arts, Inc. (dba Onessimo Fine Art) responds as follows, as it understands the Interrogatory: Artwork Consignment Agreement with Punk Me Tender LLC, dated December 4, 2021 as ‘Effective Date.’ Contract with Punk Me Tender LLC re Context Miami Fair December 2021.” (Ibid.) However, as noted by Defendants in the supplemental reply, Plaintiff still has not proffered any evidence of a contract signed by anyone with a California choice-of-law clause.

            In addition, Plaintiff does not appear to provide any evidence in support of the assertion that the “Second Consignment Agreement…covered artwork valued at $858,000.” (Suppl. Opp’n at p. 5:13-14.) Plaintiff also asserts that “the Defendant conceded the value of the missing and damaged art by providing a claim form for claims totaling $309,979.00, providing an alternative basis to establish California jurisdiction over these Defendants per § 1646.5.” (Suppl. Opp’n at p. 5:16-19.) But Plaintiff cites paragraph 26 of the Complaint in support of this assertion. (See Suppl. Opp’n at p. 5:19.)[4]

As set forth in the Court’s May 17, 2023 Order on the instant motion, “[o]n 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. 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. If the plaintiff meets this burden, it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 209-210 [internal quotations and citations omitted].)

In addition, Defendants note that Plaintiff does not cite to any legal authority to support the proposition that a California choice-of-law provision alone confers personal jurisdiction. As discussed in the May 17, 2023 Order, Defendants cite to Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 481-482, where the United States Supreme Court noted that “[t]he Court in Hanson and subsequent cases has emphasized that choice-of-law analysis – which focuses on all elements of a transaction, and not simply on the defendant’s conduct – is distinct from minimum-contacts jurisdictional analysis – which focuses at the threshold solely on the defendant’s purposeful connection to the forum. Nothing in our cases, however, suggests that a choice-of-law provision should be ignored in considering whether a defendant has purposefully invoked the benefits and protections of a State’s laws for jurisdictional purposes. Although such a provision standing alone would be insufficient to confer jurisdiction, we believe that, when combined with the 20-year interdependent relationship [the defendant] established with [plaintiff’s] Miami headquarters, it reinforced his deliberate affiliation with the forum State and the reasonable foreseeability of possible litigation there.” (Internal quotations omitted, italics in original, underline added.)

Based on the foregoing, the Court still does not find that Plaintiff has demonstrated that the Court has personal jurisdiction over Defendants pursuant to Civil Code section 1646.5.

            As discussed in the May 17, 2023 Order, Defendants also assert in the motion that neither Onessimo Fine Art nor Debra Onessimo has purposefully availed themselves of the benefits of California to support specific jurisdiction. As set forth above, a nonresident may be subject to specific jurisdiction if a three-prong test is met. “First, the defendant must have purposefully availed itself of the state’s benefits. Second, the controversy must be related to or arise out of the defendant’s contacts with the state. Third, considering the defendant’s contacts with the state and other factors, California’s exercise of jurisdiction over the defendant must comport with fair play and substantial justice.” (Gilmore Bank v. AsiaTrust New Zealand Ltd., supra, 223 Cal.App.4th at p. 1568 (emphasis in original) [internal citations omitted].)

            In the opposition and supplemental opposition, Plaintiff asserts that Defendants are subject to the Court’s specific jurisdiction. In the supplemental opposition, Plaintiff asserts that

Onessimo Fine Art purposefully directed its activities at the State of California and purposefully availed itself of the privileges of conducting activities within California by “[e]ntering into a contractual and business relationship with a California company, promoting and selling the artwork of a California-based artist,” and by “[c]onsenting to the application of California law in the First Consignment Agreement by paying for piece #130.” (Suppl. Opp’n at p. 6:17-20.) But Plaintiff again points to allegations of the Complaint in support of this assertion, specifically paragraphs 9 and 14 of the Complaint. (See Suppl. Opp’n at p. 6:18; p. 6, fn.5.) As discussed in the Court’s May 17, 2023 Order and as set forth above, “[o]n 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. 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.” (ViaView, Inc. v. Retzlaff, supra, 1 Cal.App.5th at pp. 209-210 [internal citation omitted].)

            Plaintiff also asserts that Onessimo Fine Art purposefully directed its activities at the State of California and purposefully availed itself of the privileges of conducting activities within California by “[c]onsenting to the application of California law in the Second Consignment Agreement.” (Suppl. Opp’n at p. 6:21-22.) Plaintiff cites to “Onessimo Fine Art’s Responses to Special Interrogatories” in support of this assertion. (Suppl. Opp’n at p. 6, fn. 6.) As set forth above, Onessimo Fine Art’s response to Plaintiff’s Special Interrogatory No. 9 identifies an “Artwork Consignment Agreement with Punk Me Tender LLC, dated December 4, 2021 as ‘Effective Date,” and a “Contract with Punk Me Tender LLC re Context Miami Fair December 2021.” (Greene Decl., ¶ 3, Ex. A.) However, as discussed, Plaintiff has not presented any evidence of a contract containing a California choice-of-law clause.

             Plaintiff also cites the Declaration of Debra Onessimo filed in support of Defendants’ instant motion to quash. Plaintiff cites to paragraph 7 of Debra Onessimo’s declaration, which provides, inter alia, that “Onessimo Fine Art ultimately agreed to sell Punk Me Tender’s artwork at Onessimo Fine Art’s galleries in Florida. I negotiated this agreement with Punk Me Tender on behalf of Onessimo Fine Art from Florida.” (Onessimo Decl., ¶ 7.) Plaintiff also notes that Exhibit 1 to the Declaration of Debra Onessimo is an invoice from Plaintiff with the address “1716 N. Cahuenga Blvd Studio A Los Angeles, CA 90028” on the header of the invoice. (Onessimo Decl., ¶ 10, Ex. 1.)

            Defendants counter that “the mere fact that a Florida defendant entered into a contract with a California plaintiff ‘does not automatically establish purposeful availment’ in California.” (Suppl. Reply at p. 6:24-26.) As discussed in the Court’s May 17, 2023 Order, and as Defendants note in the supplemental reply, “[a] contract with an out-of-state party does not automatically establish purposeful availment in the other party’s home forum.” (Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 907.) “Rather, a court must evaluate the contract terms and the surrounding circumstances to determine whether the defendant purposefully established minimum contacts within the forum.” (Ibid.)

            As discussed, Onessimo Fine Art’s response to Plaintiff’s Special Interrogatory No. 9 identifies an “Artwork Consignment Agreement with Punk Me Tender LLC, dated December 4, 2021 as ‘Effective Date,” and a “Contract with Punk Me Tender LLC re Context Miami Fair December 2021.” (Greene Decl., ¶ 3, Ex. A, p. 10.) However, no evidence of the contract terms was provided by Plaintiff. In addition, Plaintiff does not appear to provide evidence of any other factors purportedly establishing purposeful availment other than the fact that Onessimo Fine Art entered into the foregoing agreements with Plaintiff.  (Greene Decl., ¶ 3, Ex. A, p. 10.)

            As also discussed in the May 17, 2023 Order, Defendants cite to Interdyne Co. v. SYS Computer Corp. (1973) 31 Cal.App.3d 508, 509, where the “Plaintiff appeal[ed]…from an order granting the motion of defendant, a foreign corporation, to quash the service of summons on that defendant.” The Court of Appeal affirmed the order. (Ibid.) The Interdyne Court noted that “[w]hen a California business seeks out purchasers in other states -- purchasers who are not present in California for general purposes -- deals with them only by out-of-state agents or by interstate mail and telephone, it is not entitled to force the customer to come to California to defend an action on the contract. The arm of section 410.10 of the Code of Civil Procedure is not long enough to reach buyers who have only such minimal contact with California.” (Id. at pp. 511-512 [internal quotations omitted].) In Interdyne, “[t]he relations between the parties began in 1969, when, in New Jersey, K & J Associates, an authorized sales representative for plaintiff, solicited an order from defendant.” (Id. at pp. 509-510.) “Plaintiff [was] a California corporation, with its principal place of business in Los Angeles County. Defendant [was] a New York corporation, with its principal place of business in New Jersey.” (Id. at p. 509.) “[A]part from the contracts with plaintiff, defendant had no California contacts.” (Id. at p. 510.)

            Defendants assert that similarly here, Plaintiff’s representative Marion Doyen contacted Onessimo Fine Art about the possibility of displaying and selling Plaintiff’s artwork at Onessimo Fine Art’s galleries in Florida, and that neither Debra Onessimo nor Onessimo Fine Art sought out the business relationship with Plaintiff. (Onessimo Decl., ¶ 5.)

            In addition, Defendants indicate that no representative of Onessimo Fine Art ever traveled to California in connection with its business with Plaintiff. (Onessimo Decl., ¶ 7.) Rather, Plaintiff’s principal (the artist) traveled to Florida to work in a booth that Onessimo Fine Art “jointly paid for” at “CONTEXT Art Miami” in 2021. (Onessimo Decl., ¶ 8.) Defendants cite to Floyd J. Harkness Co. v. Amezcua (1976) 60 Cal.App.3d 687, 691-692, where the Court of Appeal noted that “[i]n examining the quality and nature of the activities in this state, it is settled that we are not concerned with the performance of the plaintiff in California but exclusively with the nonresident defendant’s activities in this state. It is the latter activities which must provide the basis for jurisdiction. It follows that the fact that the plaintiff advanced money from California, a fact upon which plaintiff places heavy reliance, is virtually eliminated as a factor to be weighed herein.” (Internal citations omitted.)

            Defendants also assert that Plaintiff’s theory for personal jurisdiction in California over Debra Onessimo is even more strained, as Plaintiff’s purported agreements were with Onessimo Fine Art, not with Debra Onessimo personally. (Onessimo Decl., ¶ 9.) Defendants note that “[t]he requirements of International Shoe…must be met as to each defendant over whom a state court exercises jurisdiction.” (Rush v. Savchuk (1980) 444 U.S. 320, 332.) As noted by Defendants, “Plaintiff’s Supplemental Opposition does not…do a separate legal analysis as to Ms. Onessimo.” (Suppl. Reply at p. 10:8.)

            Based on the foregoing, the Court does not find that Plaintiff has demonstrated that Defendants here “purposefully availed [themselves] of the state’s benefits.” (Gilmore Bank v. AsiaTrust New Zealand Ltd., supra, 223 Cal.App.4th at p. 1568, emphasis omitted.) Accordingly, the Court need not and does not address Plaintiff’s arguments in the supplemental opposition pertaining to the second element of the three-prong test. (Gilmore Bank v. AsiaTrust New Zealand Ltd., supra, 223 Cal.App.4th at p. 1568, “[i]f general jurisdiction is not established, a nonresident defendant may still be subject to California’s specific jurisdiction if a three-prong test is met…First, the defendant must have purposefully availed itself of the state’s benefits. Second, the controversy must be related to or arise out of the defendant’s contacts with the state…Third, considering the defendant’s contacts with the state and other factors, California’s exercise of jurisdiction over the defendant must comport with fair play and substantial justice.
[internal emphasis omitted].)  

            Lastly, Plaintiff asserts that “the proposed alternative of applying California-law in a Florida Court is impractical and unreasonable.” (Suppl. Opp’n at p. 7:13-14.) Plaintiff cites to Integral Development. Corp. v. Weissenbach (2002) 99 Cal.App.4th 576, 591, where the Court of Appeal noted that “[o]nce a plaintiff has shown the requisite minimum contacts to support jurisdiction, the burden shifts to defendant to show jurisdiction is not reasonable.” But here, Plaintiff has not shown the requisite minimum contacts to support jurisdiction. In addition, such analysis would pertain to any argument by Defendants that jurisdiction is not reasonable in California.

Conclusion

Based on the foregoing, Defendants’ motion is granted.

Defendants are ordered to provide notice of this Order.

DATED:  October 4, 2023                                                                             

________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court