Judge Theresa M. Traber, Case 20STCV15560 2022-08-03 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV15560, Date: 2022-08-03 Tentative Ruling

Case Number: 20STCV15560 Hearing Date: August 3, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: August 3, 2022 TRIAL DATE: NOT SET

CASE: Jessica Meir v. TJ Maxx of CA, LLC, et al.

CASE NO.: 20STCV15560

MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY: Specially Appearing Defendant Lozier Corporation

RESPONDING PARTY(S): Plaintiff Jessica Meir

CASE HISTORY:

· 04/22/20: Complaint filed.

· 19/28/20: Lozier Corporation substituted in as Doe 26.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a personal injury actin alleging negligence, premises liability, product liability and related claims in an action filed on April 22, 2020. Plaintiff alleges that she was injured while shopping in Defendant TJ Maxx’s store and was injured with a display rack hook holding an air pump fell and struck Plaintiff on the head.

Specially Appearing Defendant Lozier Corporation moves to quash service of the summons on the ground that this Court lacks personal jurisdiction over the Nebraska corporation.

TENTATIVE RULING:

Defendant Lozier Corporation’s Motion to Quash Service of Summons is DENIED.

Defendant is deemed to have made a general appearance as of the date of this order.

Defendant shall have thirty days to file an answer, demurrer, or other responsive pleading to the Complaint.

DISCUSSION:

Specially Appearing Defendant Lozier Corporation moves to quash service of the summons arguing that this Court lacks personal jurisdiction over the Nebraska corporation.

Special Appearance

No motion under Code of Civil Procedure 418.10 “shall be deemed a general appearance by the defendant.” (Code Civ. Proc. § 418.10(d).) Here, Specially Appearing Defendant (“Defendant”) brought this motion under section 418.10. Thus, filing this motion does not constitute a general appearance.

Motion to Quash

Timeliness

A motion to quash must be made as Defendant’s initial appearance in the action, on or before the last day to plead “or within any further time that the court may for good cause allow.” (Code Civ. Proc. § 418.10(a).) Filing the motion also extends the time within Defendant may answer or demur. (Code Civ. Proc. § 418.10(b).)

Here, Plaintiff filed a proof of service on December 8, 2020, stating that Specially Appearing Defendant was served on December 1, 2020, by personal service on Specially Appearing Defendant’s agent for service of process. This motion was filed and served on December 31, 2020. Therefore, the motion is timely.

Plaintiff’s Request for Judicial Notice

Plaintiff requests that the Court take judicial notice that (1) Specially Appearing Defendant is registered to conduct business in the State of California, and; (2) that Specially Appearing Defendant maintains authorized agents for service of process in the State of California. Plaintiff does not provide copies of the documents or records for which Plaintiff requests judicial notice, nor does Plaintiff provide a sufficiently detailed citation or description of these records to enable the Court to independently and readily verify these propositions by resort to sources of reasonably indisputable accuracy. Therefore, Plaintiff’s request for judicial notice is DENIED.

Specially Appearing Defendant’s Evidentiary Objections

Specially Appearing Defendant objects to Exhibit C of the Declaration of Mitch Rosensweig in support of Plaintiff’s Opposition. Defendant’s objections of relevance and lack of foundation are not well taken. With respect to Defendant’s objections on the basis of hearsay and lack of authentication, the Court similarly finds Defendant’s objections unfounded. Plaintiff has offered documentation of a purchase order by TJ Maxx from Defendant supported by a verified statement, in the form of a verified response to a discovery request, that the document is what it purports to be and was prepared as a matter of course in the ordinary course of TJ Maxx’s business. This evidence is subject to the business records exception to the hearsay rule on its face. (Evid. Code § 1271.) Accordingly, Defendant’s hearsay and authentication objections are OVERRULED.

Analysis

Specially Appearing Defendant argues that the service of the summons and complaint should be quashed because the Court does not have personal jurisdiction over Specially Appearing Defendant.

“When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 568; see also Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-13 [“Where a nonresident defendant challenges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.”].) Evidence of the facts giving rise to personal jurisdiction or their absence may be in the form of declarations. (Arensen v. Raymond Lee Organization, Inc. (1973) 31 Cal.App.3d 991, 995.) The Court should exclude evidence that would be inadmissible at trial. (See, e.g., Judd v. Superior Court (1976) 60 Cal.App.3d 38, 43-44 [Court of Appeal excluded inadmissible hearsay evidence offered in support of affirmation of trial court’s denial of motion to quash, and subsequently reversed the trial court’s denial].)

Specially Appearing Defendant contends that the Court lacks personal jurisdiction under either a theory of general personal jurisdiction or specific personal jurisdiction. A non-resident defendant may be subject to either general or specific jurisdiction. (See Elkman v. National States Insurance Co., supra, 173 Cal.App.4th at 1314.)

1. General Jurisdiction

Specially Appearing Defendant contends that the Court lacks general personal jurisdiction.

General jurisdiction exists when a defendant is domiciled in the forum state or his activities there are substantial, continuous, and systematic. (F. Hoffman-La Roche, Inc. v. Sup. Ct. (2005) 130 Cal.App.4th 782, 796.) “In such circumstances, it is not necessary that the specific cause of action alleged be connected with the defendant’s business relationship to the forum.” (Id.) “The standard for establishing general jurisdiction is ‘fairly high,’ [citation] and requires that the defendant’s contacts be of the sort that approximate physical presence.” (Elkman, supra, 173 Cal.App.4th at 1315 (emphasis in original).) “Factors to be taken into consideration are whether the defendant makes sales, solicits or engages in business in the state, serves the state’s markets, designates an agent for service of process, holds a license, or is incorporated there.” (Id.)

Here, Plaintiff contends that Defendant is authorized to conduct business in California and maintains an agent for service of process in California. Plaintiff offers no evidence of these contentions. Plaintiff also contends that Defendant causes its products to be sold in California and shipped to California on a regular basis and derives a financial benefit from those products. Plaintiff has produced evidence in the form of a deposition of Defendant’s person most knowledgeable, in which the deponent testified that Defendant has shipped products to California. (See, e.g., Declaration of Mitch Rosensweig Exh. E p.60:21-23.)

In the Court’s view, Plaintiff’s evidence is not sufficient to meet her burden of showing that Defendant’s contacts with California are the sort that approximate physical presence. There is an extensive body of case law that merely injecting a product into the stream of commerce is not sufficient, by itself, to support general jurisdiction. (See, e.g., Asahi Metal Industry Co. Ltd. v. Superior Court of California, Solano County (1987) 480 U.S. 102, 103-104.) The Court finds that it lacks general jurisdiction over Defendant. Therefore, the remaining question is whether the Court possesses specific personal jurisdiction over Defendant.

2. Specific Jurisdiction

Defendant also contends that the Court lacks specific personal jurisdiction.

“Where general jurisdiction cannot be established, a court may assume specific jurisdiction over a defendant in a particular case if the plaintiff shows the defendant has purposefully availed himself or herself of forum benefits; [i.e..] the nonresident purposefully directed its activities at forum residents or purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of local law. (Hanson v. Denckla (1958) 357 U.S. 235.)

Specific jurisdiction involves a 3-part test in California. California courts adopt the same test as the test used by the court in Boschetto v. Hansing ( (9th Cir.. 2008) 539 F.3d 1011,1016): (1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or results from the defendant's forum-related activities; and (3) exercise of jurisdiction must be reasonable.” (Panavision International, L.P. v. Toeppen (9th Cir. 1998) 141 F.3d 1316, 1320 [applying California law].).” (Jewish Defense Organization, Inc. v. Sup. Ct. of Los Angeles County (Rambam) (1999) 72 Cal.App.4th 1045, 1054.) Purposeful availment as defined by Boschetto requires affirmative conduct promoting the transaction. “To have purposefully availed itself of the privilege of doing business in the forum, a defendant must have ‘performed some type of affirmative conduct which allows or promotes the transaction of business within the forum state.’” (Boschetto, 539 F.3d at 1016.) If the plaintiff satisfies the first two prongs of the test, the burden shifts to the defendant to present a compelling case that the exercise of jurisdiction would be unreasonable. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 476-78.)

Plaintiff contends, first, that Defendant has purposefully availed itself of the privilege of doing business in California by manufacturing and shipping 10 to 50 different products to TJX locations throughout California. (See, e.g., Rosensweig Decl. Exh. E. p. p.60:21-23.) Plaintiff also contends that the claim arises out of the Defendant’s activities in California because Defendant shipped the type of curled peg hook alleged to be one of the candidates for the type of product that caused Plaintiff’s injury to the TJ Maxx location where Plaintiff was injured. (Rosensweig Decl. ¶ 4, Exh. C.) The Court finds that this evidence is sufficient to meet Plaintiff’s burden to establish the first two prongs of the Boschetto test. The burden now shifts to Defendant to rebut Plaintiff’s evidence and establish that the exercise of jurisdiction would be unreasonable.

Defendant argues that specific jurisdiction does not exist because the evidence does not show that the claim arises out of the Defendant’s activities in California. Defendant contends that Plaintiff’s evidence is insufficient to show that Defendant actually shipped the kind of peg hook to California that injured Plaintiff. Defendant cites Defendant TJ Maxx’s Responses to Plaintiff’s Second Set of Special Interrogatories Nos. 43 and 62, in which Defendant TJ Maxx stated that it did not know who supplied the peg hook at issue, and only knew that Defendant Lozier has supplied similar equipment. (Rosensweig Decl. Exh. B.) Defendant also disputes the accuracy of the TJ Maxx purchase order which shows that TJ Maxx purchased hooks of the type at issue from Defendant, arguing that the purchase order lists an incorrect place of business for Defendant. (Declaration of Matt Simon ISO Reply ¶ 3.) Furthermore, Defendant contends that the deposition of its person most knowledgeable establishes that it did not ship any peg hooks directly to California. (Rosensweig Decl. Exh. E, p.105:19-22.)

The Court is not persuaded by Defendant’s argument with respect to this prong. The evidence provided by Plaintiff, especially the purchase order by the subject store in California for exactly the kind of hooks allegedly responsible for Plaintiff’s injury, is sufficient to meet Plaintiff’s evidentiary burden. Defendant’s conflicting deposition testimony is not persuasive in the face of verified documentary evidence to the contrary. Furthermore, Defendant’s attempt to cast doubt on the veracity of the document is not persuasive. Defendant’s primary evidence in support of that contention is a verified statement that the address listed was not an address occupied by Defendant in 2013. There is no evidence that this was not an address previously occupied by Defendant. In fact, the specific wording of Mr. Simon’s declaration, which conspicuously avoids stating that the Indiana address was never a business address of Defendant, arguably suggests the contrary conclusion.

Defendant also contends that it would not be reasonable for the Court to exercise jurisdiction over Defendant, on the basis that Plaintiff’s discovery shows that Plaintiff cannot determine who manufactured the hook responsible for Plaintiff’s injuries, and that, as a foreign corporation with a principal place of business in Nebraska, it would violate principles of fair play and substantial justice to hale Defendant into California court. The Court is not convinced. Defendant has not shown why it would be unfair or unreasonable to expect a corporate entity who regularly ships products around the country, including into California, to appear in California court to answer a complaint against it for an injury allegedly caused by one of its products.

CONCLUSION:

Accordingly, Defendant Lozier Corporation’s Motion to Quash Service of Summons is DENIED.

Defendant is deemed to have made a general appearance as of the date of this order.

Defendant shall have thirty days to file an answer, demurrer, or other responsive pleading to the Complaint.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: July 8, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.