Superior Court of California

County of Los Angeles

Department 50

BRYAN DIAZ, Plaintiff, vs. RINGLOGIX, LLC d/b/a RINGLOGIX.COM, Defendant.	Case No.:	23STCV14805
	Hearing Date:	January 4, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: DEFENDANT RINGLOGIX, LLC’S MOTION TO QUASH FOR LACK OF JURISDICTION

Background

Plaintiff Bryan Diaz (“Plaintiff”) filed this action on June 26, 2023 against Defendant Ringlogix, LLC dba Ringlogix.Com. The original Complaint alleged causes of action for (1) “California Unauthorized Access to Computer Data Act,” (2) “California Invasion of Privacy Act,” (3) “California Invasion of Privacy,” (4) “intrusion upon seclusion,” and (5) “publication of private information.”

Ringlogix, LLC (“Ringlogix”), specially appearing, previously moved “to quash the summons for lack of personal jurisdiction.” On October 17, 2023, the Court issued a minute order providing, inter alia, that “the Court will continue the hearing on the instant motion to allow Plaintiff to conduct discovery on jurisdictional issues.” (October 17, 2023 Minute Order at p. 9.) The Court’s October 17, 2023 minute order further indicates that “the Court continues the hearing on Ringlogix’s motion to quash to January 18, 2024 at 10:00 a.m. Plaintiff may conduct discovery on jurisdictional issues only. Plaintiff may file a supplemental opposition to the instant motion and Ringlogix may file a supplemental reply.” (Ibid.)

On December 4, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”).

The FAC alleges one cause of action for “California Invasion of Privacy Act.” In the FAC, Plaintiff alleges that “[t]o learn the identity of Visitors to its website at www.ringlogix.com (the ‘Website’) and monetize its knowledge of those visitors’ activities, Defendant has secretly deployed spyware that accesses visitor devices, installs tracking software, and tracks visitor browsing habits. Plaintiff visited Defendant’s website in 2023. 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.” (FAC, p. 2:2-7.)

Ringlogix, specially appearing, now moves “to quash the summons for lack of personal jurisdiction.” Ringlogix asserts that “[t]he Court should quash the summons and First Amended Complaint for lack of personal jurisdiction because Plaintiff has not, and cannot, establish that Ringlogix has sufficient minimum contacts with California or that his claims arise from Ringlogix’s contacts with the state.” (Mot. at p. 16:18-21.) Plaintiff opposes.

Request for Judicial Notice

The Court denies Plaintiff’s request for judicial notice.

Discussion

Procedural Issues

As an initial matter, Ringlogix asserts that Plaintiff’s opposition was served two days late and should be disregarded. Pursuant to Code of Civil Procedure section 1005, subdivision (b), “[a]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” Nine court days prior to the January 4, 2024 hearing date is December 20, 2023. Plaintiff’s opposition was filed on December 20, 2023, and the proof of service attached the opposition indicates that it was served by electronic service on December 20, 2023. However, under ¿Code of Civil Procedure section 1010.6, subdivision (a)(3)(B)¿, “[a]ny¿period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.” (Emphasis added.) As noted by Ringlogix, eleven court days before January 4, 2024 is December 18, 2023. Because Ringlogix has submitted a substantive reply brief that address the arguments made in Plaintiff’s opposition, the Court elects to exercise its discretion to consider the untimely opposition.¿(Cal. Rules of Court, rule 3.1300, subd. (d).)

Legal Standard

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 [internal citations and emphasis 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].)

General Jurisdiction

Ringlogix asserts that it is not subject to general jurisdiction in California. In support of the motion, Ringlogix submits the Declaration of Alberto Diaz, Ringlogix’s Chief Executive Officer. (Alberto Diaz Decl., ¶ 1.) Mr. Diaz states that “Ringlogix is Florida limited liability company with its principal place of business in Miami Lakes, Florida, and its sole member is Ringlogix, Inc. Ringlogix, Inc. is incorporated in Delaware, and its principal place of business is in Miami Lakes, Florida.” (Alberto Diaz Decl., ¶ 2.) “Ringlogix is a business to business Voice over Internet Protocol (VoIP) service provider whose platform allows a range of corporate customers to sell, provision, bill, and support their own branded VoIP services to their customers.” (Alberto Diaz Decl., ¶ 3.) Mr. Diaz states that “Ringlogix has never physically operated in California and has no offices or property in California,” and that “[n]one of Ringlogix’s employees reside in California.” (Alberto Diaz Decl., ¶¶ 5-6.) Mr. Diaz also states that “[a]pproximately 10% of Ringlogix’s total revenue is generated from California. No revenue is generated from Ringlogix’s website, as it is not possible to purchase products or services via Ringlogix’s website.” (Alberto Diaz Decl, ¶ 7.)

In the opposition, Plaintiff does not appear to dispute Ringlogix’s assertion that Ringlogix is not subject to general jurisdiction in California.

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, at p. 1568 [internal citations and emphasis omitted].)

Ringlogix asserts that “Plaintiff has made no plausible allegation that Ringlogix purposefully directed its activities at or targeted California.” (Mot. at p. 12:10-11.) “The purposeful availment inquiry…focuses on the defendant’s intentionality. This prong is only satisfied when the defendant purposefully and voluntarily directs his activities toward the forum so that he should expect, by virtue of the benefit he receives, to be subject to the court’s jurisdiction based on his contacts with the forum. Thus, the purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or a third person.”
((Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269 [internal quotations and citations omitted].)

The Pavlovich Court found that “[n]ot surprisingly, the so-called Internet revolution has spawned a host of new legal issues as courts have struggled to apply traditional legal frameworks to this new communication medium. Today, we join this struggle and consider the impact of the Internet on the determination of personal jurisdiction. In this case, a California court exercised personal jurisdiction over a defendant based on a posting on an Internet Web site. Under the particular facts of this case, we conclude the court’s exercise of jurisdiction was improper.” (Pavlovich v. Superior Court, supra, 29 Cal.4th at p. 266.) The Pavlovich Court further noted that “[a]lthough we have never considered the scope of personal jurisdiction based solely on Internet use, other courts have considered this issue, and most have adopted a sliding scale analysis. 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. 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. 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.” (Id. at p. 274 [internal quotations and references to [Citation.] omitted.)

Ringlogix asserts that “Plaintiff cannot establish personal jurisdiction based on his access of the Website because he alleges nothing about its interactivity.” (Mot. at p. 13:11-12.) Ringlogix contends that “[b]esides declaring in his unverified FAC that the Website can operate as a ‘gateway’ to sales” FAC ¶ 2)—which is not true—the FAC includes no facts showing that the Website does anything more than ‘make information available to those who are interested in’ Ringlogix’s services.” (Mot. at p. 13:12-14.) Paragraph 2 of Plaintiff’s FAC alleges, inter alia, that “Plaintiff believes that Defendant generates a minimum of eight percent of revenues from its website based upon interactions with Californians (including instances in which the website operates as a ‘gateway’ to sales), such that the website ‘is the equivalent of a physical store in California.’” (FAC, ¶ 2.)

In the opposition, Plaintiff asserts that Ringlogix’s website “offers interactive features and is highly commercial.” (Opp’n at p. 9:27.) In his supporting declaration, Plaintiff’s counsel states that “[t]he website at https://www.ringlogix.com (the ‘Website’) offers a ‘STAY IN THE KNOW’ pop-up window when a user visits the homepage of the Website, which invites the user to input the user’s email address in order to subscribe to Defendant’s online blog.” (Ferrell Decl., ¶ 2, Ex. 1.) Plaintiff’s counsel further states that “[t]he Website’s homepage invites users to ‘Contact us for a Test Drive’ and ‘Request Demo’ by inviting users to input the user’s full name, email address, company name, and phone number.” (Ferrell Decl., ¶ 3, Ex. 2.) Plaintiff’s counsel states that “[t]he Website’s homepage has a ‘Request Demo’ button and hyperlink on the top right hand corner of the Website, which, if clicked, takes the user to the landing page at: https://www.ringlogix.com/request-a-demo-white-label-voip-platform, which invites users to ‘Request Demo’ by inviting users to input the user’s full name, email address, company name, and phone number.” (Ferrell Decl., ¶ 4, Ex. 3.) Lastly, Plaintiff’s counsel states that “[t]he Website’s homepage has a “Contact” hyperlink in the bottom footer, which, if clicked, takes the user to a landing page at: https://www.ringlogix.com/contact-us/, which invites users to input the user’s name, email address, company name, and message.” (Ferrell Decl., ¶ 5, Ex. 4.)

However, as noted by Ringlogix, “none of the features that Plaintiff claims evidence the Website’s interactivity are features that Plaintiff used…” (Reply at p. 7:22-23.) Rather, Plaintiff states in his declaration in support of the opposition that “[i]n 2023, I visited the website at https://www.ringlogix.com...and watched a certain video.” (Bryan Diaz Decl., ¶ 2.)

Ringlogix also cites to Jacqueline B. v. Rawls Law Group, P.C. (2021) 68 Cal.App.5th 243, 254, where the “Defendants did not purposefully direct any activities toward California residents. At most, the law firm 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.” The Jacqueline B. Court found that “the fact that plaintiff herself had to reach out to the firm directly confirms the minimal interactivity of the website.” (Id. at p. 255 [emphasis in original].)

Plaintiff also asserts in the opposition that “Defendant has admitted to engaging in economic activity within California.” (Opp’n at p. 12:25-26.) Plaintiff cites to As You Sow v. Crawford Labs. (1996) 50 Cal.App.4th 1859, 1870, where the Court of Appeal noted that “[a]n enterprise obtains the benefits and protection of our laws if as a matter of commercial reality it has engaged in economic activity within this state…” (Internal quotations omitted.) The As You Sow Court found that “[a]lthough Crawford did not send any employees to California to negotiate the contracts, it does not deny contracting directly with private distributors located in California. Thus, unlike its contracts with the G.S.A., Crawford purposefully consummated business arrangements with California companies on 16 separate occasions so it could profit from the products’ use in California. Such contact constituted economic activity within California as a matter of commercial actuality.” (Id. at p. 1871 [internal quotations omitted].)

Plaintiff notes that Alberto Diaz states in his supporting declaration that “[a]pproximately 10% of Ringlogix’s total revenue is generated from California.” (Alberto Diaz Decl., ¶ 7.) Alberto Diaz also states that “[a]pproximately 11% of Ringlogix’s customer base is located in California.” (Alberto Diaz Decl., ¶ 8.) Plaintiff asserts that accordingly, “Defendant’s evidence sufficiently shows that Defendant has solicited and transacted business with Californians in such a substantial manner such that its marketing efforts via its Website directed towards California consumers (or businesses) should not be treated as ‘random, fortuitous, or attenuated’ contacts for purposes of the purposeful direction analysis.” (Opp’n at p. 15:25-28.) But noted by Ringlogix in the motion, Plaintiff does not claim that he purchased anything from Ringlogix’s website. As set forth above, Ringlogix provides evidence that “[n]o revenue is generated from Ringlogix’s website, as it is not possible to purchase products or services via Ringlogix’s website.” (Alberto Diaz Decl., ¶ 7.) As discussed, under the second prong of the specific jurisdiction analysis, “the controversy must be related to or arise out of the defendant’s contacts with the state.” (Gilmore Bank v. AsiaTrust New Zealand Ltd., supra, 223 Cal.App.4th at p. 1568 [emphasis in original].)

In the opposition, Plaintiff contends that his “claims arise out of Defendant’s forum related activities” because “[i]f Defendant had not engaged in the alleged wrongdoing at issue herein via its Website made available to California residents, Plaintiff’s claims would not have arisen.” (Opp’n at p. 18:3; 18:4-6.) Plaintiff references Ringlogix’s “alleged wrongdoing,” but the Court notes that “¿[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]¿.)

Plaintiff alternatively requests a continuance to conduct jurisdictional discovery. “¿A trial court has discretion to continue the hearing on a motion to quash service of summons for lack of personal jurisdiction to allow the plaintiff to conduct discovery on jurisdictional issues.¿” (Burdick v. Superior Court (2015) 233 Cal.App.4th 8, 30¿; ¿see also Magnecomp Corp. v. Athene Co. (1989) 209 Cal.App.3d 526, 533¿, “¿[When] jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that minimum contacts exist between defendant and the forum state to justify imposition of personal jurisdiction. The plaintiff has the right to conduct discovery with regard to the issue of jurisdiction to develop the facts necessary to sustain this burden.”¿ [internal quotations and citations omitted].)

In his opposition to the instant motion, Plaintiff argues that “[a]lthough Defendant contends that ‘it is not possible to make a purchase on the Website,’ (Def.’s Mem. at 9:12-13), it is beyond dispute that Defendant uses its Website as a significant marketing channel to attract customers. Pavlovich makes it relevant to know precisely how successful of a marketing channel the Website has become for Defendant in marketing and potentially obtaining Californians as customers. Plaintiff is entitled to conduct jurisdictional discovery as to the foregoing topics especially because Defendant has confirmed that ‘[a]pproximately 11% of Ringlogix’s customer base is located in California,’ (Diaz Decl. ¶ 8), and ‘[a]pproximately 10% of Ringlogix’s total revenue is generated from California,’ (Diaz Decl. ¶ 7).” (Opp’n at p. 16:4-12.)

In the reply, Ringlogix states, inter alia, that Alberto Diaz, Ringlogix’s PMK, testified that Ringlogix does not target its marketing to California or any other location. (Reply at p. 10:14-15, citing Diaz Tr. at 30:3-8.) The Court notes that Plaintiff has not had the opportunity to address the evidence submitted by Ringlogix for the first time in connection with the reply.

As set forth above, the Court issued a minute order on October 17, 2023 continuing the hearing on Ringlogix’s previous motion to January 18, 2024 to allow Plaintiff to conduct discovery on jurisdictional issues. As discussed in the Court’s October 17, 2023 minute order, “[a] plaintiff attempting to assert jurisdiction over a nonresident defendant is entitled to an opportunity to conduct discovery of the jurisdictional facts necessary to sustain its burden of proof.¿In order to prevail on a motion for a continuance for jurisdictional discovery, the plaintiff should demonstrate that discovery is likely to lead to the production of evidence of facts establishing jurisdiction.¿” (¿In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 127 [internal citation omitted, emphasis added]¿.)

In his supporting declaration, Plaintiff’s counsel states that “Plaintiff has sought to conduct jurisdictional discovery upon Defendant in this action including the PMK deposition of Defendant’s corporate designee since October 18, 2023, which is when Plaintiff served Defendant with a PMK deposition notice via email in this action.” (Ferrell Decl., ¶ 7.) Plaintiff’s counsel states that “[o]n December 14, 2023, I conducted the PMK deposition of Defendant in this action, but I adjourned such deposition because Defendant refused to answer some of my critical questions with substantive responses because of confidentiality concerns.” (Ferrell Decl., ¶ 13.) Plaintiff’s counsel indicates that the parties could not reach an agreement as to the terms of a protective order. (Ferrell Decl., ¶¶ 9-12.) Plaintiff asserts that he “will likely need to move to compel Defendant to provide full and straightforward responses in order to obtain relevant information crucial to the issue of specific jurisdiction,” and that “[t]he Court should defer ruling on the instant Motion until after the foregoing discovery dispute is resolved.” (Opp’n at p. 17:9-12.) In the reply, Ringlogix asserts, inter alia, that “Plaintiff’s request for a further continuance should be denied for the sole reason that Ringlogix agreed to provide the specific revenue and customer count figures he requested subject to a protective order with an attorneys-eyes only designation. Guyon Decl. ¶ 6.” (Reply at p. 11:6-8.) As discussed, Plaintiff has not had the opportunity to address the evidence submitted by Ringlogix for the first time in connection with the reply.

Based on a consideration of the foregoing, the Court is inclined to permit a continuance of the hearing on the instant motion to allow Plaintiff to conduct discovery on jurisdictional issues.

Conclusion

Based on the foregoing, the Court continues the hearing on Ringlogix’s instant motion to quash to ________________ at 10:00 a.m. Plaintiff may conduct discovery on jurisdictional issues only. Plaintiff may file a supplemental opposition to the instant motion and Ringlogix 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.

The Court also notes that in light of the fact that Plaintiff filed the operative FAC, Ringlogix’s previous motion to quash filed on August 11, 2023 appears to be moot. The Court notes that in its August 11, 2023 motion, Ringlogix asserts, inter alia, that “[t]he Court should quash the summons on Ringlogix for lack of jurisdiction and dismiss the Complaint without leave to amend.” (August 11, 2023 Mot. at p. 7:9-10.) As discussed, the FAC is the operative pleading in this action. The Court notes that “[a]n amendatory pleading supersedes the original one, which ceases to perform any function as a pleading. 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…Because there is but one complaint in a civil action…the filing of an amended complaint moots a motion directed to a prior complaint.” ((JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477 [internal quotations and citations omitted]) Thus, the Court vacates the January 18, 2024 hearing on Ringlogix’s previous August 11, 2023 motion.

Ringlogix is ordered to give notice of this Order.

DATED: January 4, 2024

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court