Case Number: BC532058 Hearing Date: May 13, 2014 Dept: 73

Department 73
Rafael A. Ongkeko, Judge presiding

Baheremand,
Plaintiff(s),
v.
Farmers, ET AL.
Defendant(s).

Case No.: BC532058

Hearing Date: 5/13/14

[TENTATIVE] RULING RE:

DEFENDANT MICHAEL’S MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTION

Counsel for defendant/moving party: Geoffrey Tong, Gina Gi (Lee, etc., specially appearing)
Counsel for plaintiff /opposing party: Self-represented.

Defendant Shannon Michael’s motion to quash for lack of personal jurisdiction (filed 4/1/14) is GRANTED. The court has read and considered plaintiff’s untimely opposition. Defendant’s appearance is appropriately made as a special appearance.

CCP §418.10(a) states in pertinent part, that “[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. . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her…”

“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. Superior Court (2007) 148 Cal.App.4th 556, 568. In opposition to a motion to quash based upon lack of personal jurisdiction, complainants have the initial burden of presenting evidence to show minimum contacts. Muckle v. Superior Court (2002) 102 Cal.App.4th 218, 228. Plaintiffs must demonstrate personal jurisdiction by a preponderance of evidence, based upon competent evidence, and not on an unverified complaint. Jewish Defense Org. v. Sup. Ct. (1999) 72 Cal.App.4th 1045, 1054-1055. If that burden is met, the burden shifts to the defendant to demonstrate that the assumption of jurisdiction would be unreasonable. Malone v. Equitas Reinsurance Ltd. (2000) 84 Cal.App.4th 1430, 1436. The complaint alleges defendant Michael “is a Help Point representative (she is the claims adjuster for the defendants Farmers insurance exchange to whom the insured plaintiff’s claim was assigned to.)” (¶2.)

Personal Jurisdiction. “Although the existence of sufficient ‘minimum contacts’ depends on the facts of each case, the ultimate determination generally rests on some conduct by which the nonresident has purposefully availed himself of the privilege of conducting activities within the forum state to invoke its benefits and protections, and a sufficient relationship or nexus between the nonresident and the forum state such that it is reasonable and fair to require the nonresident to appear locally to conduct a defense.” Muckle, supra, 102 Cal.App.4th at 227.

General personal jurisdiction. “When the contacts are ‘substantial, continuous and systematic,’ general personal jurisdiction may be exercised as to any cause of action, even one unrelated to the nonresident’s activities within the forum state.” Id. Here, Defendant maintains she is a citizen of Oklahoma, where she works and lives. (Michael Decl. ¶6.) She declares she has never maintained a personal mailing address in California, has never personally earned any wages or paid income taxes in California, and has only visited the state once, ten years ago, on vacation. (Id.) She also indicates she has never owned or leased real property in California and does not operate or solicit any business in California in her personal capacity. Id. Plaintiff does not appear to contest that there are not substantial or continuous and systematic contacts with California that would allow for general personal jurisdiction.

Specific personal jurisdiction. If a defendant’s contacts with the forum state are not substantial, continuous, and systematic, the defendant may be subject to specific jurisdiction. “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. [Citations.]” Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269 (internal quotations omitted). Courts are usually more willing to find the requisite contacts with a foreign corporation than a foreign individual, as these corporations have more interstate activities, greater resources, and better ability to defend in a distant forum, making the exercise of jurisdiction more reasonable. See Ruger v. Superior Court (Houghton) (1981) 118 Cal.App.3d 427, 433-34.

Purposeful Availment. “The purposeful availment inquiry focuses on the defendant’s intentionality and is 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 p. 269 (internal quotations omitted).) Purposeful availment asks whether the defendant’s “conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 297. “[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 [citation].” Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1063.

Plaintiff’s opposition offers no evidence in support of a finding that Michael purposefully availed herself of the laws of California. Plaintiff argues Defendant has chosen to conceal that she was handling California claims, that Farmers is a California admitted carrier, and that as an adjuster handling California’s claims, she is subject to the California claims practice act. However, no evidence or case law on this point is provided in Plaintiff’s opposition. Defendant’s declaration indicates that she was employed as a total loss specialist for Farmers between 2011 and 2013. (Michael Decl. ¶2.) She indicates that during her entire employment for Farmers, she worked in Oklahoma City. (Michael Decl. ¶3.) Defendant admits that she was assigned to Plaintiff’s claim but declares her work was limited to her capacity and arose from her duties as a claims adjuster. (Michael Decl. ¶5.) She indicates that she never travelled to California for any reason in connection with Plaintiff’s claim or the allegations at issue in the complaint. (Id.) Defendant also argues that based on California rulings finding no liability as to claims adjuster, on grounds they are not parties to the insurance contract, it would not benefit judicial economy to exercise jurisdiction over her. See Egan v. Mutual of Omaha Ins. Co. (1979) 24 C3d 809.

The court finds that Plaintiff has not his burden to establish that Defendant purposefully availed herself.

Relatedness of Contacts and Cause of Action. “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 Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 452. The court finds that since there was no purposeful availment on the part of Defendant, this element fails.

Fairness (Fair Play and Substantial Justice). State courts can exercise personal jurisdiction over nonresidents who have “minimum contacts” with the forum state, with minimum contacts meaning that the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington (1945) 326 U.S. 310, 316. The following factors are generally considered when personal jurisdiction is challenged on minimum contacts grounds:

• 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;
• 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.

World-Wide Volkswagen, supra, 444 U.S. at 292; Fisher Governor Co. v. Superior Court (Prestwich) (1959) 53 Cal.2d 222, 225-26.

Here, as Defendant is an Oklahoma resident who no longer works for Farmers, without substantial contacts with California, the Court finds that exercising jurisdiction is inappropriate, even if it were to find that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.

Based on the foregoing, the Court finds that Plaintiff has not met his burden of proving, by a preponderance of the evidence, that Defendant has sufficient minimum contacts with California. The motion to quash service of the summons and complaint on defendant Michael is GRANTED.

ORDER TO SHOW CAUSE
Plaintiff is ordered to show cause on _[90 days]___________why sanctions, including dismissal, should not be imposed for failure to file a proof of service of the summons and complaint on defendant Michael and/or serve Michael in compliance with California Rules of Court, rule 3.720, et seq.

Unless waived, notice of ruling by moving party.