Judge: Theresa M. Traber, Case: 24STCV01349, Date: 2024-06-14 Tentative Ruling

Case Number: 24STCV01349    Hearing Date: June 14, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     June 14, 2024             TRIAL DATE: NOT SET

CASE:                         Airsha Byars v. Bio Clarity, LLC

CASE NO.:                 24STCV01349           

MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

MOVING PARTY:               Specially Appearing Defendant Bio Clarity, LLC

RESPONDING PARTY(S): Plaintiff Arisha Byars

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for violation of the California Invasion of Privacy Act that was filed on January 18, 2024. Plaintiff alleges that Defendant violated the act by employing a third party to harvest data collected from the chat feature on Defendant’s website.

Defendant moves to quash service of the summons and complaint for lack of personal jurisdiction.

TENTATIVE RULING:

Defendant’s Motion to Quash Service of the Summons and Complaint is DENIED.

            Defendant is deemed to have made a general appearance this date.

DISCUSSION:

Defendant moves to quash service of the summons and complaint for lack of personal jurisdiction.

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.  

Missing Proof of Service

            Although this motion was filed on May 22, 2024, Defendant’s moving papers do not contain a proof of service of the motion on Plaintiff. However, Plaintiff filed an opposition to the motion on June 3, 2024 and did not object to the motion as improperly noticed. The Court will therefore address the motion on its merits.

Defendant’s Evidentiary Objections

            Defendant raises several evidentiary objections to the Declaration of Scott J. Ferrell in support of the opposition to this motion. The Court rules on these objections as follows:

            Objections to Paragraphs 2-5 and 7: OVERRULED. Does not lack foundation nor personal knowledge; the contents of a public website may be viewed and described by counsel for a party.

            Objection to Paragraph 8: OVERRULED. Not an improper conclusion, but a description of the website’s contents. Does not lack foundation nor personal knowledge.

            Objection to Paragraph 9: SUSTAINED as irrelevant.

Requests for Judicial Notice

            Plaintiff requests that the Court take judicial notice of a series of minute orders in other proceedings concerning unrelated factual disputes. As these rulings are entirely immaterial to the motion at hand, Plaintiff’s requests for judicial notice are DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].) 

Legal Standard

“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].) 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.)

General Jurisdiction

The parties agree that the Court does not possess general jurisdiction over Defendant and, if personal jurisdiction exists, it is premised on a theory of specific jurisdiction. The Court therefore confines its analysis to the question of specific personal jurisdiction.

Specific Jurisdiction

Defendant contends that the Court lacks specific personal jurisdiction over Bio Clarity, LLC.

“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.)

In the context of internet activity, the California Supreme Court has adopted the following “sliding scale” test for personal jurisdiction:

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.)

            Plaintiff opposes the motion arguing Defendant’s website is sufficiently interactive to subject Defendant to personal jurisdiction because it functions as an online store (Declaration of Scott. J. Ferrell ISO Mot. ¶ 3; Exh. 3), contains an interactive chat feature (Id. ¶ 4), and has fillable forms to sign up for electronic newsletters and discounts and to contact Defendant’s customer service representatives. (Id. ¶¶ 4-6.) Plaintiff also states that the website expressly references the rights of Californians under the Consumer Privacy Act of 2018, and thus argues that the website was constructed with an eye toward California. (Ferrell Decl. ¶ 7; Exh. 6.) Plaintiff thus distinguishes Defendant’s website from Pavlovich, where the website had no interactive features nor any reference to California (Pavlovich, supra, 29 Cal.4th at 274) and argues that it is sufficiently interactive and commercial to subject Defendant to personal jurisdiction.  

As our Supreme Court has stated, for cases falling within the “middle ground” of the sliding scale, federal courts “have been less than consistent.” (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1064.) Snowney declined to address what interactivity was required to establish personal jurisdiction because the website in that case touted the proximity of the defendant’s hotels to California and provided driving directions from California to those hotels. (Id. at 1064-65.) Subsequently, the Court of Appeal in Thurston v. Fairfield Collectibles of Ga., LLC held that a facially neutral website that generated a substantial number of sales of goods or services to California residents constitutes purposeful availment. (Thurston v. Fairfiled Collectibles of Ga., LLC (2020) 53 Cal.App.5th 1231, 1241.) Under California authority, even a small number of sales may be “substantial.” (As You Sow v. Crawford Laboratories, Inc. (1996) 50 Cal.App.4th 1859, 1864 [16 sales totaling no more than 1% of annual sales sufficient to establish personal jurisdiction].) Plaintiff has offered no evidence of the quantity of sales made to California, even though the website appears to have been designed with this state in mind.

In reply, Defendant dismisses Plaintiff’s analysis as a misapplication of the sliding scale test, describing its website as a national website accessible from California. Defendant analogizes this case to Jacqueline B. v. Rawls Law Group, P.C., in which the Court of Appeal found no specific jurisdiction over a Virginia law firm whose website described a nationwide practice and included examples of settlements from across the nation, including two in California. (Jacqueline B. v. Rawls Law Group, P.C. (2021) 68 Cal.App.5th 243, 255.) The Court does not share Defendant’s view, as the website in this case does not merely list California as one of many examples, but specifically calls out a protection established by California law for California residents. The Court therefore finds that Plaintiff has offered sufficient evidence to demonstrate purposeful availment by Defendant through operation of its interactive website, and that the claim asserted arises out of those activities.

Where, as here, the plaintiff has satisfied her burden on a motion to quash for lack of personal jurisdiction, the burden shifts to the moving party to demonstrate that the exercise of jurisdiction would be unreasonable. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 476-78.) The moving party must show that litigating the case in a foreign state would be “so gravely difficult and inconvenient that it would put him at a severe disadvantage in comparison to his opponent.” (Doe v. Damron (2021) 70 Cal.App.5th 684, 693.) Mere inconvenience is insufficient to defeat jurisdiction. (Id.) When evaluating the reasonableness of the exercise of jurisdiction, courts commonly balance several factors in making the determination, including (1) the extent of the defendant’s purposeful interjection into the forum state; (2) the burden on the defendant; (3) the extent of conflict with the sovereignty of the defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff’s interests in convenient and effective relief; and (7) the existence of an alternate forum. (See Core-Vent Corp. v. Nobel Indus. (9th Cir. 1993) 11 F.3d 1482, 1488-89.)

Here, Defendant offers no evidence demonstrating why the exercise of jurisdiction would be so inconvenient and difficult as to put it at a severe disadvantage. Mere statements that Defendant is based in New York and has no personnel or property in California are not sufficient to demonstrate unreasonableness by themselves, because those statements are not evidence of burden. (See Declaration of Sol Silberstein ISO Mot.) Defendant has therefore failed to demonstrate that the exercise of personal jurisdiction would be unreasonable.

CONCLUSION:

            Accordingly, Defendant’s Motion to Quash Service of the Summons and Complaint is DENIED.

            Defendant is deemed to have made a general appearance this date.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  June 14, 2024                         ___________________________________

                                                                                    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.