Case Name: Primavera Mendez v. Vive Sol, Inc., et al.

Case No.: 17CV318897

(1) Motion to Set Aside Default (C.C.P. §473(d)) and Quash Service of Summons Due to Lack of Personal Jurisdiction (C.C.P. §418.10)
(2) Joinder of Defendants Vive Sol, Inc., Hector Sol, Jaime Alor, and Mario Herrera Ramirez in Gerardo Mejia’s Motion to Set Aside Default (C.C.P. §473(d)) and Quash Service of Summons Due to Lack of Personal Jurisdiction (C.C.P. §418.10)

Plaintiff Primavera Mendez (“Plaintiff”) worked for defendant Vive Sol, Inc. (“VSI”) as a hostess/ food server. (Complaint, ¶9.) Defendant Hector Sol is the owner of defendant VSI and was Plaintiff’s boss. (Complaint, ¶7.) Defendant Jaime Alor (“Alor”) was Plaintiff’s supervisor. (Id.) Defendants Gerardo Mejia and Mario Herrera Ramirez (erroneously sued as Mario LNU (last name unknown); hereafter, “Ramirez”) were Plaintiff’s co-workers. (Id.)

Plaintiff was sexually harassed, verbally and physically, at work by defendants Sol, Alor, Mejia, and Ramirez. (Complaint, ¶¶10 – 15.) After Plaintiff reported the sexual harassment and sexual assault to management, defendants Alor, Mejia, and Ramirez retaliated against Plaintiff by throwing food and hot plates at Plaintiff. (Complaint, ¶16.) After Plaintiff continued complaining, Plaintiff was fired from her position on or about January 4, 2016. (Id.)

On November 9, 2017, Plaintiff filed a complaint against defendants VSI, Sol, Alor, Mejia, and Ramirez asserting causes of action for:

(1) Sexual Harassment
(2) Sexual Hostile Work Environment
(3) Discrimination Against Plaintiff Based on Sex
(4) Failure to Prevent Harassment and Discrimination from Occurring
(5) Retaliation
(6) Wrongful Discharge Based on Sex
(7) Assault
(8) Battery
(9) Gender Violence
(10) Ralph Act Violation
(11) Employers’ Negligent Supervision
(12) Termination in Violation of Public Policy Based on Sex
(13) Intentional Infliction of Emotional Distress

On February 5, 2018, defendants VSI, Sol, Alor, and Ramirez jointly filed an answer to Plaintiff’s complaint.

On July 18, 2018, the court (Hon. Pierce) granted Plaintiff’s ex-parte application for an order for publication of summons as to defendant Mejia.

On November 6, 2018, the court (Hon. Kirwan) granted Plaintiff’s ex-parte application for order for service of Plaintiff’s statement of damages by publication.

On December 13, 2018, Plaintiff filed a request for entry of default against defendant Mejia.

On February 19, 2019, defendant Mejia filed the motion now before the court, a motion to set aside default and quash service of summons due to lack of personal jurisdiction.

On April 15, 2019, defendants VSI, Sol, Alor, and Ramirez filed a joinder to defendant Mejia’s motion.

I. Defendant Mejia’s motion to set aside default is DENIED.

Although Plaintiff filed a request for entry of default on December 13, 2018, the court clerk has not yet entered default against defendant Mejia. There is no entry of default for the court to set aside. Consequently, defendant Mejia’s motion to set aside default is DENIED as is defendants VSI, Sol, Alor, and Ramirez’s joinder thereto.

II. Defendant Mejia’s motion to quash service of summons due to lack of personal jurisdiction is DENIED.

Code of Civil Procedure section 418.10, subdivision (a)(1) states, in pertinent 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 for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.”

“Although the defendant is the moving party, the burden of proof is on the plaintiff.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶3:384, p. 3-111 citing Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793 (Floveyor), et al.) “[T]he burden of proof is upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence.” (Evangelize China Fellowship, Inc. v. Evangelize China Fellowship, Hong Kong (1983) 146 Cal.App.3d 440, 444; Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062 (Snowney); HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1167-1168 (HealthMarkets); In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 110.) The burden must be met by competent affidavits containing specific evidentiary facts or authenticated documentary evidence, not by allegations of an unverified complaint. (In re Automobile Antitrust Cases I and II, at p. 110.) If plaintiffs satisfy that burden, the burden shifts to the defendant to show the exercise of jurisdiction would be unreasonable. (HealthMarkets, at p. 1168; Snowney, at p. 1062.)

There are several traditional bases for personal jurisdiction: (1) service on persons physically present in the forum state; (2) domicile within the state; and (3) consent or appearance in the action. (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶3:131, p. 3-50; Pennoyer v. Neff (1877) 95 U.S. 714, 733.) According to defendant Mejia, none of the traditional bases for jurisdiction are present here. Defendant Mejia contends further that there is no basis for the exercise of personal jurisdiction against him based on a minimum contacts analysis.

“ ‘California courts may exercise personal jurisdiction on any basis consistent with the Constitution of California and the United States. [Citation.] The exercise of jurisdiction over a nonresident defendant comports with these Constitutions “if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate ‘ “traditional notions of fair play and substantial justice.” ‘ “ ‘ [Citations.] [¶] ‘The concept of minimum contacts … requires states to observe certain territorial limits on their sovereignty. It “ensure[s] that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” ‘ [Citation.] To do so, the minimum contacts test asks ‘whether the “quality and nature” of the defendant’s activity is such that it is “reasonable” and “fair” to require him to conduct his defense in that State.’ [Citation.] The test ‘is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite “affiliating circumstances” are present.’ ” (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1061-1062 (Snowney).)

“Under the minimum contacts test, ‘[p]ersonal jurisdiction may be either general or specific.’ [Citation.] … ‘When determining whether specific jurisdiction exists, courts consider the “ ‘relationship among the defendant, the forum, and the litigation.’ ” [Citation.] A court may exercise specific jurisdiction over a nonresident defendant only if: (1) “the defendant has purposefully availed himself or herself of forum benefits” [citation]; (2) “the ‘controversy is related to or “arises out of” [the] defendant’s contacts with the forum’ “ [citation]; and (3) “ ‘the assertion of personal jurisdiction would comport with “fair play and substantial justice” ‘ “ [citation].’ “ (Snowney, supra, 35 Cal.4th at p. 1062.) The question of purposeful availment focuses on the defendant’s intentionality, and is “ ‘only satisfied when the defendant purposefully and voluntarily directs [its] activities toward the forum so that [it] should expect, by virtue of the benefit [it] receives, to be subject to the court’s jurisdiction based on’ [its] contacts with the forum.” (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269 (Pavlovich).)

Here, the court finds Plaintiff has met her burden of proof of establishing the facts of jurisdiction by a preponderance of the evidence. “If the non-resident committed the liability producing acts while physically present in California, the exercise of personal jurisdiction by state courts will almost always be held ‘reasonable.’ His or her presence here while committing such acts will almost always constitute a sufficient ‘contact’ to satisfy due process in lawsuits arising from those acts.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶3:264, p. 3-88 citing Lundgren v. Superior Court (1980) 111 Cal.App.3d 477, 484.)

Plaintiff incorporates by reference the declarations that she submitted in seeking an order for publication of the summons. Among the declarations submitted is Plaintiff’s own declaration wherein she states, in relevant part, “I worked for defendant Vive Sol, Inc. as a hostess/food server. I was sexually harassed at work by the defendants in this case, including defendant Mejia. The sexual harassment was both verbal and physical. … Defendant Mejia also repeatedly touched my hands, my waist, and my buttocks. Defendant Mejia engaged in other sexually offensive conduct against me. … Defendant Mejia … pinned me to the floor.” (See Declaration of Primavera Mendez in Support of Ex Parte Application for Order for Publication of Summons.)

Defendant Mejia cites Shoei Kako Co. v. Superior Court (1973) 33 Cal.App.3d 808, 818–819 for the proposition that California cannot exercise jurisdiction against him if to do so would violate an international treaty.

The second clause of article VI of the United States Constitution provides as follows: ”This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.“ This state, therefore, cannot attempt to exercise jurisdiction if to do so would violate an international treaty.

Defendant Mejia then cites California Rules of Court, rule 5.68 which states, in relevant part, “The petitioner must arrange to serve the other party with a summons, petition, and other papers as required by one of the following methods: … Service on a person residing outside of the United States, which must be done in compliance with service rules of the following: (A) Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; or (B) Inter-American Convention on Letters Rogatory and the Additional Protocol to the Inter-American Convention on Letters Rogatory.”

Initially, rule 5.68 is not applicable here since the rule applies to family law cases and the instant case is not a family law case. Moreover, defendant Mejia’s assertion that the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters was not complied with also fails because, as Plaintiff points out in opposition, Honduras (where defendant Mejia purportedly resides) is not a member of the Hague Conference. (See https://www.hcch.net/en/states/hcch-members.) Defendant Mejia does not persuasively demonstrate that the exercise of jurisdiction against him would violate an international treaty.

In reply, defendant Mejia appears to argue for the first time that service of summons by publication is void. Defendant Mejia cites Olvera v. Olvera (1991) 232 Cal.App.3d 32, 41, where the court wrote:

We are of the opinion that the affidavit in support of the application for permission to accomplish service by publication was both deficient on its face and materially misleading, and that the Olveras not only failed to show due diligence, but failed to exercise it. The judgment based on such service was therefore void and subject to direct or collateral attack.

The court does not consider new arguments raised for the first time on reply. “We will not ordinarily consider issues raised for the first time in a reply brief. [Citation.] … Fairness militates against allowing [a party] to raise an issue for the first time in a reply brief because consideration of the issue deprives the [opposing party] of the opportunity to counter the [moving party] by raising opposing arguments about the new issue. [Citation.]” (American Indian Model Schools v. Oakland Unified School District (2014) 227 Cal.App.4th 258, 275-76.)

Even if the court were to consider defendant Mejia’s argument, the court disagrees with defendant Mejia’s assertion that the application for publication was not supported by a showing of due diligence. In reviewing the application for an order to publish summons, Plaintiff, through her agent or attorney, exercised reasonable diligence in attempting to serve defendant Mejia. Plaintiff’s investigator inquired of defendant Mejia’s employer (through the employer’s attorney) and when defendant could not be served at that address, Plaintiff’s investigator conducted various records including, “Internet phone directories and directory assistance Nationwide; Nationwide Real Property Records, Consumer Affairs Licensing Division, Fictitious Business Names, Secretary of State Corporate, LP LLC & UCC Searches; Nationwide People Searches, Credit Headers and Neighborhood searches.”

Defendant Mejia’s motion to quash is premised on his assertion that he has not resided in California since December of 2017. Since that time, defendant Mejia asserts he has been permanently residing in Honduras and has not returned to California. Defendant Mejia further asserts he was not in California when the summons and statement of damages were published in the San Francisco Daily Journal as allowed by this court.

In opposition, Plaintiff begins by pointing out that defendant Mejia’s declaration is unsigned and therefore invalid. (See Code Civ. Proc., §2015.5 discussing requirements for a valid affidavit or certificate. See also Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 609 – 610—recognizing four elements for a proper declaration under Code of Civil Procedure section 2015.5: “(1) a certification or declaration that it is ‘true under penalty of perjury,’ (2) the ‘subscription’ of the declarant, (3) a statement of the ‘date of execution,’ and (4) a statement that such certification or declaration occurs ‘under the laws of the State of California.’”)

In reply, defendant Mejia asks for a continuance to allow his counsel to obtain an executed copy of his declaration. Defendant Mejia’s request for continuance is DENIED. Defendant Mejia’s residence in Honduras since December 2017 is not the relevant consideration.

Once a court decides that a defendant has purposefully established contacts with the forum state and that plaintiff’s cause of action arose out of those forum-related contacts, the final step in the analysis involves balancing the convenience of the parties and the interests of the state in order to determine whether the exercise of personal jurisdiction is fair and reasonable under all of the circumstances. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 477 – 478; Vons Cos., Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 447 – 448.)

The ‘minimum contacts’ doctrine provides no mechanical yardstick. Rather, personal jurisdiction depends on the facts of each case … the test being whether, under those facts, California has a sufficient relationship with the defendant and the litigation to make it reasonable (“fair play”) to require him or her to defend the action in California courts. The following factors are usually considered:

• The extent to which the lawsuit relates to defendant’s activities or contacts with California;
• The availability of evidence, and the location of witnesses;
• The availability of an alternative forum in which the claim could be litigated (defendant’s amenability to suit elsewhere);
• The relative costs and burdens to the litigants of bringing or defending the action in California rather than elsewhere; and
• Any state policy in providing a forum for this particular litigation (e.g., protection of California resident, or assuring applicability of California law).

(Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶3:205, pp. 3-68 to 3-69 citing World-Wide Volkswagen v. Woodson (1980) 444 U.S. 286, 292.)

“[T]he defendant has the burden of demonstrating ‘that the exercise of jurisdiction would be unreasonable.’ ” (Snowney, supra, 35 Cal.4th at p. 1062.) In reply, defendant Mejia asserts it would be cost prohibitive to fly back and forth to California, but there is no admissible evidence concerning the actual costs to travel from Honduras to California nor is there any admissible evidence concerning defendant Mejia’s financial ability to pay for such travel. Defendant Mejia contends the action can proceed against the four other defendants, but this does not appear to be one of the facts a court would consider in determining whether the exercise of personal jurisdiction is fair and reasonable under all of the circumstances. Defendant Mejia has not met his burden of demonstrating that the exercise of jurisdiction would be unreasonable.

Accordingly, defendant Mejia’s motion to quash service of summons due to lack of personal jurisdiction is DENIED as is defendants VSI, Sol, Alor, and Ramirez’s joinder thereto.