30-14-704120
MOTION (1): quash service of summons for lack of personal jurisdiction
MOTION (2): quash service of summons for lack of personal jurisdiction; alternatively, dismiss on grounds of forum non conveniens

Procedural Issue: These motions were filed when the original Complaint was the operative pleading. After the motions were filed, plaintiff filed a First Amended Complaint. Plaintiff addresses these motions as if they are directed at the FAC, specifically the 3 new causes of action added in the FAC. Defendants argue they were not properly served with the FAC so these motions should only be directed to the original Complaint, though defendants Reply addresses the merits of the motions as directed to the FAC, just in case service is proper.

Under CCP § 472, “Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of the amendment.”

An amended pleading that makes “substantive” changes supersedes the original. An amendment making substantive changes in the complaint must be personally served on any defendant who has not appeared in the action (i.e., in the same manner as a summons). (Engebretson & Co., Inc. v. Harrison (1981) 125 CA3d 436, 442–443.) Substantive changes include adding a new cause of action based on a different legal theory (Ford v. Sup.Ct. (Orton) (1973) 34 CA3d 338, 343), or subjects the defendant to increased damages (Ostling v. Loring (1994) 27 CA4th 1731, 1744.)

The FAC adds 3 new causes of action so defendants are entitled to proper service of the FAC as they have not yet appeared in the action. Motions to quash summons and complaint do not constitute an appearance in the action. CCP § 418.10(d.)

Defendants do not present any evidence as to how the FAC was served. According to the Court Computer, the POS of the FAC filed 5/5/2014 shows that the FAC was served in CA on defense counsel via electronic service thru One Legal, LLC.

None of the service of summons statutes (CCP § 415.10 et seq; 416.10 et seq.) allow service of summons by electronic service. Thus, Defendants are correct that they have not been properly served with the FAC.

In view of the foregoing, these motions are properly directed to the Complaint.

Merits:

The motions should be granted.

CCP § 418.10(a)(1) provides for motion to quash service of summons on grounds of lack of jurisdiction. When a nonresident defendant challenges personal jurisdiction the burden shifts to the plaintiff to demonstrate by a preponderance of the evidence that all necessary jurisdictional criteria are met. This burden must be met by competent evidence in affidavits and authenticated documentary evidence. An unverified complaint may not be considered as an affidavit supplying necessary facts. Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232-1233. Here, the Complaint is not verified.

“’Minimum contacts’ means the relationship is such that the exercise of jurisdiction over the nonresident does not offend ‘traditional notions of fair play and substantial justice.’” International Shoe Co. v. Washington (1945) 326 US 310, 316. “Under the minimum contacts test, “an essential criterion in all cases is 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.” “[T]he ‘minimum contacts’ 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.” Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268 (internal citations omitted.)

Personal jurisdiction may be either general or specific. If the nonresident defendant does not have ‘substantial, continuous and systematic’ contacts in the forum sufficient to establish general jurisdiction, he or she still may be subject to the specific jurisdiction of the forum if the defendant has purposefully availed himself or herself of forum benefits and the controversy is related to or ‘arises out of’ a defendant’s contacts with the forum. Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445-446.

‘The purposeful availment inquiry … focuses on the defendant’s intentionality. [Citation.] This prong is only satisfied when the defendant purposefully and voluntarily directs his activities toward the forum so that he should expect, by virtue of the benefit he receives, to be subject to the court’s jurisdiction based on’ his contacts with the forum.” Pavlovich, supra, 29 Cal.4th at 269; Epic Communications, Inc. v. Richwave Technology, Inc. (2009) 179 Cal.App.4th 314, 327 (“When determining whether specific jurisdiction exists, courts consider the ‘ “relationship among the defendant, the forum, and the litigation.” ’ 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” ‘ [citations]; and (3) ‘“the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’”)

Plaintiff does not attempt to establish general jurisdiction. Defendants’ arguments re general jurisdiction are moot.

As to specific jurisdiction, plaintiff fails to meet his burden of proof. All of plaintiff’s arguments in support of specific jurisdiction are based on the 3 new causes of action that were added in the FAC (5th c/a for tortious interference with actual or prospective economic relations – plaintiff’s current employment with Ventura Foods; 6th c/a for declaratory judgment; and 7th c/a for breach of contract – long-term incentive plan and restricted stock plan.) Since those causes of action are not alleged in the original Complaint, plaintiff’s arguments lack merit and fail to establish specific jurisdiction. Specifically, plaintiff fails to show that the controversy alleged in the original Complaint is related to or arises out of the defendants’ contacts with CA, and that the assertion of personal jurisdiction would comport with fair play and substantial justice. Grant the motions to quash.

In the alternative, defendant RB LLC seeks to dismiss this action on grounds of forum non-conveniens. This argument is moot.

Motion (1): The motion by defendant Reckitt Benckiser Group plc for an order quashing service of summons and Complaint for lack of personal jurisdiction is granted. Plaintiff failed to establish that this court has general or specific jurisdiction over defendant in connection with the causes of action in the original complaint.
Motion (2): The motion by defendant Reckitt Benckiser LLC for an order quashing service of summons and complaint for lack of personal jurisdiction is granted. Plaintiff failed to establish that this court has general or specific jurisdiction over defendant in connection with the causes of action in the original complaint. Defendant’s motion, in the alternative, to dismiss this action on grounds of forum non-conveniens is moot.