Filed 2/14/20 Solis v. Sky UK Limited CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MADELLIN SOLIS,

Plaintiff and Appellant,

v.

SKY UK LIMITED,

Defendant and Respondent.

B293177

(Los Angeles County

Super. Ct. No. BC631179)

APPEAL from an order of the Superior Court of Los Angeles County. Richard E. Rico, Judge. Affirmed.

Carpenter, Zuckerman & Rowley, Stephen K. McElroy and Josh M. Dowell for Plaintiff and Appellant.

Wood, Smith, Henning & Berman, Daniel A. Berman and Nicholas M. Gedo for Defendant and Respondent.

_____________________________

Plaintiff Madellin Solis challenges the trial court’s finding it lacked personal jurisdiction over defendant Sky UK Limited (Sky), a British corporation, for a claim of negligence arising from a car accident. Sky had contracted with a U.S. production company U.S. Production Services, known as Attack Ads, Inc. (Attack Ads), to film a television commercial in the Big Bear Lake area of Southern California. Attack Ads hired Matthew Marden to work as a grip on the production. About two hours after production wrapped and 110 miles away from the production site, Marden was involved in the car accident with Solis. The trial court concluded Sky’s activities in the U.S. were too attenuated from the accident to support personal jurisdiction and quashed service of the summons and complaint on Sky. We affirm.

BACKGROUND

The car accident occurred on January 21, 2015 in Lancaster, California. Driving a pickup truck pulling a trailer with a friend’s filming equipment, Marden turned left in front of the car carrying Solis and others, causing a collision. Solis and the other occupants filed a complaint against Marden, Attack Ads, and Sky, asserting a single claim for negligence. They alleged Marden was acting within the scope of his employment with Attack Ads and Sky, and the companies negligently employed him and allowed him to drive.

Plaintiffs served Sky, and Sky filed a motion to quash, arguing personal jurisdiction was lacking in California. In support, Sky offered evidence it was a telecommunications company headquartered in London, England, providing telecommunication services in the U.K. and Ireland. Sky did no business in California and had no regular connection to the state except for four employees located here. None of those employees had any involvement in or connection to the commercial shoot produced by Attack Ads.

Sky occasionally hired third-party contractor Attack Ads to produce commercials for Sky in the United States, paying Attack Ads on a per-project basis for an agreed price. Sky creatively controlled these productions, but Attack Ads determined how to complete the projects, provided the crew and equipment, and selected, trained, supervised, and paid its own personnel.

In January 2015, Sky retained Attack Ads to produce a commercial for Formula 1 racing. Per their practice, Attack Ads handled non-creative elements for the shoot. Three Sky employees scouted locations for the shoot and selected a location in the San Bernardino mountains near Big Bear Lake, California. The shoot took place between January 19 and 21, 2015. Two Sky employees were on set to supervise the creative direction. They did not direct or supervise any production personnel, all of whom were retained by Attack Ads. They had no input on the production schedule, hours, equipment, safety, or travel for production personnel.

Marden was hired by Attack Ads and worked on the production in the grip crew. He had no contact with Sky personnel before or during the production. On one of the shoot days, Attack Ads rented Marden’s truck to move equipment around the set and as a camera platform because another vehicle had broken down.

Marden worked on the Attack Ads shoot with an acquaintance Bradley Boyer. Both were scheduled to work on a project with another company in Northern California after the Attack Ads shoot ended, so they agreed Marden would haul Boyer’s trailer and filming equipment to the new location for that production. After the Attack Ads production wrapped on the last day at about 2:30 p.m., Marden started driving north on a route different from the one prescribed by the production for travel to Los Angeles. Two hours later and 110 miles away from the location of the Attack Ads shoot, Marden hit the car Solis occupied.

Solis offered evidence the production was non-union but Attack Ads abided by the “union zone” or “studio zone” rule. That rule allowed production crew to request payment for travel time outside a specified 30-mile radius in Los Angeles. Marden never submitted a request for his travel time on the day of the accident, however. Marden testified he believed he was still “on the clock” at the time of the accident, although he also testified he was not doing a task related to his job. Driving was not within the scope of his work as a grip.

The trial court granted Sky’s motion to quash because specific personal jurisdiction was lacking. The court found Marden had no contact with Sky employees, his truck was rented only to move equipment on the set, and he agreed to haul equipment to an unrelated separate production in Northern California at the end of the Attack Ads shoot. The court concluded: “It is undisputed that [Solis] had no contact with Sky at any point. The production had ended and Marden was not engaged in any activity to benefit Attack or Sky. Simply stated, the court finds the relationship as between Defendant Marden and Sky is too attenuated to establish jurisdiction.”

DISCUSSION

“ ‘California courts may exercise personal jurisdiction on any basis consistent with the Constitutions of California and the United States. (Code Civ. Proc., § 410.10.) 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.” ’ ” [Citation.]’ [Citation.] ‘[T]he 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.” [Citation.]’ ” (Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 552–553 (Jayone Foods).)

Personal jurisdiction may be general or specific. Solis conceded the trial court could not exercise general jurisdiction over Sky, so we are concerned only with specific jurisdiction. Our focus is “ ‘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]’ ” (Jayone Foods, supra, 31 Cal.App.5th at p. 553.) Sky is based in the U.K., and “[a]ssuming personal jurisdiction over a nonresident defendant from another nation calls for increased caution, because a ‘high barrier of sovereignty tends to undermine the reasonableness of exercising personal jurisdiction in this state. [Citation.]’ ” (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 221.)

When the defendant moves to quash service of process, the plaintiff initially must show by a preponderance of evidence the exercise of jurisdiction is justified. (Jayone Foods, supra, 31 Cal.App.5th at p. 553; see Roman v. Liberty University, Inc. (2008) 162 Cal.App.4th 670, 677; Magnecomp Corp. v. Athene Co. (1989) 209 Cal.App.3d 526, 533 (Magnecomp).) If the plaintiff meets that burden, then the defendant must demonstrate the exercise of jurisdiction would be unreasonable. (Jayone Foods, supra, at p. 553.) “ ‘When there is conflicting evidence, the trial court’s factual determinations are not disturbed on appeal if supported by substantial evidence. [Citation.] When no conflict in the evidence exists, however, the question of jurisdiction is purely one of law and the reviewing court engages in an independent review of the record. [Citation.]’ ” (Ibid.)

The trial court found specific jurisdiction lacking because Solis’s lawsuit did not relate to or arise out of Sky’s contacts with California. We confine our analysis to that requirement because it is dispositive. We find no error with the trial court’s ruling.

Initially, Solis argues the trial court applied the wrong legal standard in finding no connection between her lawsuit and Sky’s forum-related activities. “Absent any evidence to the contrary, we presume that the trial court applied the correct legal standard.” (Cueto v. Dozier (2015) 241 Cal.App.4th 550, 561.) We are satisfied the trial court did so here.

Citing Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 451 (Vons), the trial court explained “jurisdiction is limited to causes of action that bear a substantial connection to the nonresident’s forum-related contacts or activities.” The court opined, “There must be a direct relationship between the defendant’s forum-related activity and the claim.” The court then quoted Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County (2017) __ U.S. __, __, 137 S.Ct. 1773, 1780 (Bristol-Myers): “ ‘Specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.’ ”

Solis takes issue with the court’s suggestion there must be a “direct” relationship between Sky’s forum activities and the claim. In Vons, the California Supreme Court rejected both “but for” and “proximate cause” tests to analyze the connection between a defendant’s forum activities and the claims at issue. (Vons, supra, 14 Cal.4th at pp. 462–464, 467–469; see Jayone Foods, supra, 31 Cal.App.5th at pp. 560–561.) Instead, it adopted a “substantial connection” test: “A claim need not arise directly from the defendant’s forum contacts in order to be sufficiently related to the contact to warrant the exercise of specific jurisdiction. Rather, as long as the claim bears a substantial connection to the nonresident’s forum contacts, the exercise of specific jurisdiction is appropriate.” (Vons, supra, at p. 452.) The court also adopted a sliding scale approach to specific jurisdiction, holding, “[F]or the purpose of establishing jurisdiction the intensity of forum contacts and the connection of the claim to those contacts are inversely related.” (Ibid.)

Twenty years later in Bristol-Myers, the United States Supreme court rejected this “sliding scale” approach adopted in Vons, viewing it as a “loose and spurious form of general jurisdiction” with “no support” in Supreme Court precedent. (Bristol-Myers, supra, 137 S.Ct. at p. 1781.) “For specific jurisdiction, a defendant’s general connections with the forum are not enough. As we have said, ‘[a] corporation’s “continuous activity of some sorts within a state . . . is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.” ’ ” (Ibid.) “What is needed . . . is a connection between the forum and the specific claims at issue.” (Ibid.) Thus, a plaintiff must offer evidence of “ ‘an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.’ [Citation.] For this reason, ‘specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.’ ” (Id. at p. 1780.)

Although the Vons sliding scale approach is no longer good law after Bristol-Myers, the “substantial connection” test from Vons is consistent with Bristol-Myers and remains the controlling standard in California. (See Jayone Foods, supra, 31 Cal.App.5th at p. 560 [applying “substantial connection” test from Vons after Bristol-Myers].) Although the trial court here stated a “direct” relationship was required, it cited the Vons “substantial connection” test and the Bristol-Myers “deriving from, or connected with” test. Notwithstanding this imprecise language, we are satisfied the trial court understood a “substantial connection” between Sky’s California activities and Solis’s negligence claim was required and applied the correct legal standard.

Nonetheless, we review the trial court’s holding, not its reasoning, and conclude it reached the right result. (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 115 (Automobile Antitrust Cases).) Under the facts found by the trial court, there was no connection whatsoever—let alone a substantial connection—between Sky’s forum activities and Solis’s accident with Marden. The collision occurred two hours after the commercial shoot wrapped. It occurred 110 miles away from the shoot location on a route different from the production-prescribed route back to Los Angeles. It involved Marden, a worker hired by Sky’s contractor Attack Ads, and he had no contact at all with Sky personnel before or during the shoot. Perhaps most important, the trial court found Marden was not engaged in any activity benefitting Sky or Attack Ads. While Solis presented evidence Marden might have been acting within the scope of his employment or agency, the trial court resolved this factual issue against her. We cannot disturb this factual finding, which was supported by substantial evidence. Given the accident happened more than a hundred miles away from the commercial shoot hours after it wrapped while Marden was towing a friend’s personal equipment to another job, the trial court properly concluded the accident did not arise from or relate to Sky’s activities in California.

Solis argues the trial court improperly resolved the merits of her negligence claim against Sky when it concluded Marden was not acting within the scope of work for the commercial shoot. Relatedly, she claims because the merits of her claim and the inquiry into personal jurisdiction overlapped, she only needed to present a “prima facie” connection between Sky’s activities and her claim to establish personal jurisdiction. She is incorrect.

True, “[t]he merits of the complaint are not at issue at this stage of [the] proceedings.” (Automobile Antitrust Cases, supra, 135 Cal.App.4th at p. 110.) Yet, “when personal jurisdiction is asserted on the basis of a nonresident defendant’s alleged activities in this state, facts relevant to jurisdiction may also bear on the merits of the complaint. . . . [¶] The plaintiff must do more than merely allege jurisdictional facts. It must present evidence sufficient to justify a finding that California may properly exercise jurisdiction over the defendant.” (Ibid.) The plaintiff’s evidentiary burden is “grounded in constitutional guarantees of due process,” and applying a lower standard would undermine the fundamental considerations of fairness and reasonableness, particularly for a defendant like Sky located in a foreign nation. (Id. at p. 113.)

The court in Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523 rejected a similar argument in the context of an alter ego allegation: “[The plaintiff] is plainly wrong to the extent it claims the inclusion in a complaint of alter ego allegations automatically gives the trial court jurisdiction over the defendant against whom such allegations are directed. It is correct that a motion to quash for lack of personal jurisdiction does not implicate the merits of the complaint, but the plaintiff in opposing the defendant’s motion to quash, must present evidence to justify a finding that the requisite jurisdictional minimum contacts exist.” (Id. at p. 540; see Automobile Antitrust Cases, supra, 135 Cal.App.4th at pp. 112–114 [rejecting similar argument for conspiracy claim]; see also Magnecomp, supra, 209 Cal.App.3d at pp. 536–538 [evaluating evidence of agency to determine personal jurisdiction].)

We also reject Solis’s alternate theory Sky could be subject to jurisdiction in California based on its own direct negligence in hiring and supervising Marden. She offered no evidence Sky was responsible for hiring or supervising Marden. Even if she had, the trial court resolved the disputed scope-of-work issue against her, meaning Marden was outside Sky’s supervision at the time of the accident. Whether direct or vicarious, Solis’s negligence claim is so far removed from Sky’s involvement in the commercial shoot that the trial court could not fairly exercise personal jurisdiction over Sky.

DISPOSITION

The trial court’s order is affirmed. Respondent Sky is entitled to costs on appeal.

BIGELOW, P. J.

WE CONCUR:

STRATTON, J.

WILEY, J.