Judge Upinder S. Kalra, Case Number: 23STCV27597, Date: 2024-03-04 Tentative Ruling

1. An Order quashing service of the summons of Plaintiff’s Complaint on Defendant.

On November 9, 2023, Plaintiff Michael Gonzales (Plaintiff) filed a Complaint against Defendant Genepro Protein Inc. (Defendant) with two causes of action for (1) Common Law Fraud; and (2) Violation of California Consumers Legal Remedies Act, California Civil Code § 1750, et seq. According to the Complaint, Plaintiff purchased protein powder from Defendant and claims the packaging was misleading because the container was approximately twice the size of the product contained therein.

On December 13, 2023, Plaintiff filed proof of service indicating personal service on Defendant on November 17, 2023.

On January 2, 2024, Defendant filed the instant motion to quash. On February 20, 2024, Plaintiff filed an opposition. On February 26, 2024, Defendant filed a reply.

“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 for one or more of the following purposes: To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”¿ (Code Civ. Proc., (CCP) § 418.10, subd. (a)(1).)¿

A defendant may move to quash service of summons on the ground the court lacks personal jurisdiction.¿ (Code Civ. Proc., § 418.10, subd. (a)(1).)¿¿ The plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. (Burdick v. Superior Court (2015) 233 Cal.App.4th 8, 17 (Burdick); Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449 (Vons).) ¿By¿statute, the courts of this state may exercise personal jurisdiction over nonresident defendants to the extent permitted by the United States Constitution.¿ (Code Civ. Proc., § 410.10; Preciado v. Freightliner Custom Chassis Corporation (2023) 87 Cal.App.5th 964, 975 (Preciado).)¿ Under the Constitution, due process requires that a nonresident defendant have¿“certain minimum contacts” with a forum such that the court’s exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice.¿ (Int’l Shoe Co. v. Wash.¿(1945) 326 U.S. 310, 316; Preciado, supra, at p. 975.)

Defendant contends that the court lacks personal jurisdiction because there is no general jurisdiction over Defendant and there are insufficient connections to California warranting specific jurisdiction. Defendant additionally contends that it would be unreasonable for the court to exercise jurisdiction over Defendant. Plaintiff argues there is specific jurisdiction over Defendant because he bought the product from a retailer in California.[1] Plaintiff also argues that Defendant has not made a “compelling case” that it would be unreasonable to assert jurisdiction over Defendant. Defendant replies that Plaintiff has failed to present competent evidence supporting specific jurisdiction.[2]

Courts may exercise specific jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully availed themselves of forum benefits, (2) the controversy is related to or “arises out of” the defendant’s contacts with the forum, and (3) the assertion of personal jurisdiction would comport with “fair play and substantial justice.” (Thurston v. Fairfield Collectibles of Georgia, LLC (2020) 53 Cal.App.5th 1231, 1237 [citing Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.]) Plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction when a defendant moves to quash service of process for lack of specific jurisdiction. (Ibid.) Plaintiff must show two things to establish specific jurisdiction: (1) that the defendant purposefully directed their activities at residents of the forum, and (2) the litigation results from alleged injuries that arise out of or relate to those activities. (Preciado, supra, at p. 977.) ¿

“[P]urposeful¿availment¿occurs where a nonresident defendant purposefully directs¿its activities at residents of the forum [citation],¿purposefully derives¿benefit¿from’ its activities in the forum [citation],¿creates a substantial connection with the forum [citation],¿deliberately has engaged in significant activities within’ the forum [citation],¿or has created continuing obligations between itself¿and residents of the forum.” (Anglo Irish Bank Corp. v. Superior Court¿(2008) 165 Cal.App.4th 969, 978 (Anglo Irish), internal quotation marks and citations omitted; As You Sow v. Crawford Laboratories, Inc. (1996) 50 Cal.App.4th 1859, 1870 [“When a manufacturer makes a direct effort to serve the market for its product in the forum state, the requisite level of foreseeability is met.”; Preciado, supra, at p. 978.])

In the context of a website, courts employ a “sliding scale analysis” that looks to the website’s interactivity and commercial nature. (Thurston, supra, at p 1237-1238.) Some courts also consider other contacts in conjunction with the defendant’s website. (Id. at 1239.) In California, “making a substantial number of sales of goods or services to California residents via one’s own website constitutes purposeful availment.” (Id.at 1240.) This means the sales are not “random, isolated, or fortuitous.” (Ibid.)

Here, Plaintiff has not met his burden demonstrating that Defendant purposefully availed itself of California’s forum. First, the unverified Complaint alleges that Defendant’s website targets Californians and is a gateway to sales such that it is the equivalent of a physical store in California.[3] (Compl. ¶ 7.) This directly contradicts Plaintiff’s declaration that he purchased the subject product from a brick-and-mortar retailer in Los Angeles. (Gonzales Decl. ¶ 2.) Plaintiff does not say whether this retailer is Defendant’s but argues that the Website interactivity is irrelevant to the instant action because he did not purchase the product via the Website. (Id.; see also Opp. 15:7-16.) Second, Plaintiff did not provide evidence that Defendant directed its activities to California. For example, the reference to the “Become a Wholesale Distributor” link on the Website is not like Thurston, Snowney, or As You Sow, because it generally invites website visitors to become a retailer, not specifically invites Californians to become retailers or otherwise engage. (Ferrell Decl. ¶ 3.) Indeed, Plaintiff’s evidence indicates the subject product is available by “various sellers” – none of which are Defendant.[4] (Ferrel Decl. ¶¶ 4,5, and 6.) Therefore, Plaintiff has shown that Defendant invites other retailers to place its products generally in the stream of commerce and may expect some of those products to end up in California. (Felix v. Bomoro Kommanditgesellschaft (1987) 196 Cal.App.3d 106, 113-115.) However, “foreseeability alone has never been a sufficient benchmark for personal jurisdiction under the Fourteenth Amendment.” (Id. at p. 115.) It is also not “fair” to hale Defendant to court in California solely because Plaintiff physically purchased the subject product in California.[5] (Ibid.) Plaintiff has provided no evidence that Defendant “reasonably anticipate[d] being sued” in California. (Ibid.)

Accordingly, the court GRANTS Defendant’s motion to quash service of summons.

Because Plaintiff has not established that Defendant purposefully availed itself of California’s forum, the court declines to analyze the remaining two elements needed to assert specific jurisdiction.

[1] Plaintiff does not address general jurisdiction. As such, the court declines to analyze general jurisdiction.

[2] Specifically, Defendant argues that Plaintiff’s purchase of the product at Walmart does not show purposeful availment by Defendant but rather shows placing a product in the stream of commerce.

[3] The court is aware that the unverified Complaint is not evidence.

[4] Indeed, one of those retailers is apparently Walmart, which is not a California corporation. (Ferrell Decl. ¶4.)

[5] The Felix Court provides a pertinent example of a “Florida soft-drink concessionaire . . . summoned to Alasha to account for injuries happening there.” (Felix, supra, at p. 115.) This example is akin to what is alleged here – Defendant, a North Carolina company, summoned to court in California for alleged violations of California law.