Case Name: Helen Theresa Givens v. Roy Anthony Givens, et al.
Case No.: 17CV311029

I. Background

Helen Theresa Givens (“Plaintiff”) commenced this action to recover damages for physical and financial abuse perpetrated by her husband, defendant Roy Anthony Givens, and facilitated by others, including defendants Pantrol, Inc. (“Pantrol”), Pantrol CEO James Kucera (“Kucera”), Kucera’s company JayKay Holdings, LLC (“JayKay”), and RiverBank Holding Co. (doing business as RiverBank) (“RiverBank”).

Although Plaintiff’s allegations lack clarity, the theme of her pleading is that her husband, with the help of Kucera and his company JayKay and with the participation of entities such as RiverBank, arrogated to himself community assets in which Plaintiff had an interest. For example, Plaintiff and her husband were the majority shareholders of defendant Pantrol. (Third Amended Complaint (“TAC”), ¶ 56.) In 2009, Plaintiff’s husband sold their shares to the company’s CEO, Kucera, for $6,000,000. (TAC, ¶ 59.) Kucera financed a portion of the purchase price by executing a promissory note in favor of Plaintiff and her husband in the amount of $2,956,924 at an unspecified interest rate. (TAC, ¶ 59.) Plaintiff alleges her husband forged her signature on a novation of the promissory note that reduced the principal due to $2,070,323. (TAC, ¶ 60.) Plaintiff also alleges her husband, with the help of Kucera and his company JayKay, obtained a “replacement loan” from RiverBank. (TAC, ¶ 153.) Plaintiff claims her interest as a creditor of Kucera was subordinated to the unspecified interest RiverBank obtained upon extending the replacement loan. (TAC, ¶ 153.) Ultimately, Plaintiff alleges she was deprived of her share of sums due under the promissory note executed by Kucera. (TAC, ¶¶ 153–154.) Plaintiff also alleges Kucera, through JayKay, purchased Pantrol’s primary office from an entity she owned with her husband, Helroy Investments, LLC, but then diverted the purchase price to her husband only. (TAC, ¶¶ 175–180.) Finally, Plaintiff alleges Kucera witnessed her husband sell the assets of a publicly-traded company, Solaris Power Cells, Inc., to an online publisher, Pixel Mags, Inc.; she seems to allege she somehow lost money through this transaction. (TAC, ¶¶ 111–125.) On this basis, Plaintiff asserts causes of action against Pantrol, Kucera, JayKay, and RiverBank (collectively, “Defendants”) for fraud and conversion.

Currently before the Court is Defendants’ motion to quash service of the summons on the ground of lack of personal jurisdiction. Defendants filed a request for judicial notice in support of their motion.

II. Request for Judicial Notice

Defendants filed a request for judicial notice of Plaintiff’s first amended complaint and the order authorizing her to file the second amended complaint as well as an administrative complaint Plaintiff lodged with the Washington State Department of Financial Institutions and a letter from the Federal Deposit Insurance Corporation to RiverBank notifying it of and enclosing the same.

A court may take judicial notice of court records. (Evid. Code, § 452, subd. (d).) Thus, the Court may take judicial notice of the prior pleading and order authorizing a subsequent amendment (to which the proposed second amended complaint is attached).

Next, Evidence Code section 452, subdivision (c) authorizes a court to take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” Under this subdivision, a court may take judicial notice of official correspondence and documents prepared by agencies and officials. (Field v. Bowen (2011) 199 Cal.App.4th 346, 370, fn. 5.) In contrast, information and documents prepared by private parties and on file with a state agency are not subject to judicial notice as official acts. (People v. Thacker (1985) 175 Cal.App.3d 594, 596–99; accord Hughes v. Blue Cross of N. Cal. (1989) 215 Cal.App.3d 832, 856, fn. 2.) The official correspondence from the FDIC is subject to judicial notice as an official act as is the fact of its receipt of a complaint from Plaintiff. But Plaintiff’s administrative complaint itself and its contents, which she prepared and sent in, are not subject to judicial notice.

For these reasons, Defendants’ request for judicial notice is GRANTED as to the court records and the FDIC letter with the administrative complaint attached and is DENIED as to the stand alone administrative complaint presented as Exhibit C to the request for judicial notice.

III. Merits of Motion

A defendant may move to quash service of the summons on the ground the court lacks personal jurisdiction. (Code Civ. Proc., § 418.10, subd. (a)(1).) In opposition to the motion, “the plaintiff has the burden of proving, by a preponderance of the evidence, the factual bases justifying the exercise of jurisdiction.” (ViaView, Inc. v. Retzlaff (“ViaView”) (2016) 1 Cal.App.5th 198, 209–10.)

“Personal jurisdiction over a [ ] defendant depends upon the existence of essentially two criteria: first, a basis for jurisdiction must exist [ ]; second, given that basis for jurisdiction, jurisdiction must be acquired by service of process in [ ] compliance with the requirements of our service statutes.” (Ziller Electronics Lab GmbH v. Super. Ct. (1988) 206 Cal.App.3d 1222, 1229, original italics.) Defendants dispute whether there is a basis for the exercise of personal jurisdiction. They additionally take issue with the manner in which they have been named in this action.

A. Basis for Personal Jurisdiction

Defendants argue they are nonresidents who lack sufficient minimum contacts with the forum to support the exercise of personal jurisdiction. In opposition, despite a substantial lack of clarity and absence of legal analysis, it appears Plaintiff’s position is that there is some connection between business transactions in California and her claims.

As a threshold matter, Plaintiff appears to concede that Defendants are not residents of this forum. Neither RiverBank nor RiverBank Holding Co. are California companies; both are Washington entities with principal places of business in Spokane, Washington. (Byrne Decl., ¶¶ 2–4.) Similarly, Mr. Kucera and JayKay, of which he is the sole member, are domiciled in Washington and based in Spokane in particular. (Kucera Decl., ¶¶ 2, 13.) Finally, Pantrol is a Washington corporation headquartered in Spokane. (Kucera Decl., ¶¶ 3, 59.) In sum, Defendants are nonresidents.

Pursuant to California’s long-arm statute, courts may exercise personal jurisdiction over nonresidents “on any basis not inconsistent with the Constitution of this state or of the United States.” (Code Civ. Proc., § 410.10.) “The United States Constitution permits a state to exercise jurisdiction over a nonresident defendant if the defendant has sufficient ‘minimum contacts’ with the forum such that ‘maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” [Citations.]’” (Burdick v. Super. Ct. (2015) 233 Cal.App.4th 8, 17–18, quoting Internat. Shoe Co. v. Washington (1945) 326 U.S. 310, 316.)

A court may exercise general jurisdiction if the defendant’s contacts with the forum are so constant and pervasive that it is “at home” in the forum state. (Daimler AG v. Bauman (2014) 571 U.S. 117, 122.) Otherwise, if “the defendant lacks such pervasive forum contacts that the defendant may [not] be treated as present for all purposes, it is nonetheless proper to subject the defendant to the forum state’s jurisdiction in connection with a particular controversy.” (ViaView, supra, 1 Cal.App.5th at p. 210.) A court may exercise specific jurisdiction if: “(1) the defendant has purposefully availed itself of forum benefits with respect to the matter in controversy; (2) the controversy is related to or arises out of the defendant’s contacts with the forum; and (3) the exercise of jurisdiction would be reasonable and comports with fair play and substantial justice.” (Id. at p. 216.)

Plaintiff does not present legal analysis or evidence sufficient to establish Defendants have such pervasive contacts with California that they are subject to general jurisdiction. And so, Plaintiff necessarily must show these defendants are subject to specific jurisdiction. Plaintiff’s theory appears to be that Defendants are subject to specific jurisdiction because they had contact with forum residents, namely Mr. Givens upon his relocation to California in 2014 and Solaris Power Cells, Inc. Plaintiff’s theory of specific jurisdiction lacks merit.

First and foremost, courts look at the defendant’s contacts with the forum as compared to the defendant’s contacts with individuals affiliated with the forum. (Walden v. Fiore (2014) 571 U.S. 277, 284.) Thus, the Supreme Court has “consistently rejected attempts to satisfy the defendant-focused ‘minimum contacts’ inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum State.” (Id. at p. 284, citing Helicopteros Nacionales de Colombia, S.A. v. Hall (1984) 466 U.S. 408, 417 [“[The] unilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction.”].) “Due process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the ‘random, fortuitous, or attenuated’ contacts he makes by interacting with other persons affiliated with the State.” (Walden, supra, 571 U.S. at p. 286.) By focusing on whether Defendants had contacts with others in California, such as Mr. Givens and Solaris Power Cells, Inc., Plaintiff’s theory of specific jurisdiction runs afoul of this central tenet of personal jurisdiction.

Plaintiff’s theory is also problematic because she does not clearly explain, with supporting legal analysis and evidence, what specific contacts each defendant had and how the contacts relate to her claims.

Plaintiff first argues generically that her claims arise out of unspecified contracts entered into in California. (Opp. at pp. 5:17–7:5.) It is not apparent from this statement or the exhibits she references what contracts she is talking about, how the contracts relate to the moving defendants, and how the contracts give rise to her claims. Accordingly, this argument is not well-taken.

In actuality, the execution of an agreement with a resident of the forum does not, standing alone, establish the defendant has sufficient minimum contacts with the forum to support the exercise of personal jurisdiction. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 475–76; Stone v. Texas (1999) 76 Cal.App.4th 1043, 1048.) “Rather, a court must evaluate the contract terms and the surrounding circumstances to determine whether the defendant purposefully established minimum contacts within the forum.” (Stone, supra, 76 Cal.App.4th at p. 1048 [internal citations and quotation marks omitted].) “Relevant factors include prior negotiations, contemplated future consequences, the parties’ course of dealings, and the contract’s choice-of-law provision.” (Ibid.) In evaluating these factors, courts do not engage in a mechanical evaluation of the place of contracting and performance. (Fastpath, Inc. v. Arbela Technologies Corp. (8th Cir. 2014) 760 F.3d 816, 821.) Thus, “[a]lthough territorial presence frequently will enhance a potential defendant’s affiliation with a State and reinforce the reasonable foreseeability of suit there, it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted.” (Burger King, supra, 471 U.S. at p. 475.) The future consequences—the commercial outcome—of the parties’ agreement carries the most weight. (See Fastpath, supra, 760 F.3d at p. 821.)

Picot v. Weston (9th Cir. 2015) 780 F.3d 1206 provides a helpful illustration of these principles. In Picot, a third party (from Nevada) introduced the plaintiff (from California) to the defendant (from Michigan) to facilitate their collaboration on the development of a new electrolyte technology for use in hydrogen fuel cells. (Id. at pp. 1209–10.) The technology was primarily developed by the defendant in Michigan, while the plaintiff worked to find a seller in California; the defendant went to California to make presentations to potential investors and buyers on several occasions. (Ibid.) A dispute arose when the plaintiff and the third party who introduced him to the defendant negotiated the sale of the technology for $35 million and failed to pay the defendant his share of the proceeds. (Id. at p. 1210.) The plaintiff commenced an action for declaratory relief in Santa Clara County Superior Court, which was removed and then dismissed for lack of personal jurisdiction. (Id. at pp. 1210–11.) On appeal, the plaintiff argued, “the oral agreement created a substantial connection between [the defendant] and California because [the plaintiff], a co-party to the agreement, fulfilled his obligations under the agreement by seeking out investors and buyers in California.” (Id. at pp. 1212–13.) But the Ninth Circuit rejected this argument stating that reasoning “would mistakenly ‘allow[ ] a plaintiff’s contacts with the defendant and forum to drive the jurisdictional analysis.’” (Id. at p. 1213, quoting Walden, supra, 571 U.S. at p. 189.) “[T]he fact that a contract envisions one party discharging his obligations in the forum state cannot, standing alone, justify the exercise of jurisdiction over another party to the contract.” (Picot, supra, 780 F.3d at p. 1213.) The Ninth Circuit also rejected the plaintiff’s argument that travel to California for sales presentations established a sufficient connection to the forum. (Id. at p. 1213.) In doing so, it reasoned that the trips were not “envisioned in the…agreement” and were instead incidental to “broader efforts to develop and market the technology.” (Ibid.)

As applied here, the fact that unspecified documents or agreements were sent to Mr. Givens in California for his signature is insufficient, without more, to establish the moving defendants are subject to specific jurisdiction. In other words, Plaintiff and her ex-husband’s contact with California by nature of their relocation to Palm Desert around 2014 is an insufficient nexus between Defendants and the forum.

Plaintiff next argues her claims arise out of a transaction with a California entity, namely Solaris Power Cells, Inc. This argument is problematic for the reasons set forth above. Additionally, it is unclear based on the allegations in the pleading or Plaintiff’s opposition how this argument could pertain to any defendant other than Kucera. Finally, as for Kucera, Plaintiff does not establish what contacts he had with California and/or this California entity for the purpose of establishing those forum related contacts give rise to any claim asserted. This is a sufficient basis for rejecting the argument. Furthermore, Kucera presents evidence affirmatively disclaiming the only allegation in the pleading seemingly tying him to the purported sale of Mr. Givens’ stake in Solaris. (Kucera Decl., ¶¶ 46–48.) And so, Plaintiff’s second argument is insufficient to establish a basis for the exercise of specific jurisdiction.

Plaintiff also argues Pantrol does business in California. The few points Plaintiff advances in support are insufficient to show it is subject to general or specific jurisdiction based on business transactions in California. The cited evidence is insufficient as well. (See, e.g., Givens Decl., ¶ 3.) Also, Defendants present evidence controverting Plaintiff’s suggestion that Pantrol routinely does business in California. (Kucera Decl., ¶¶ 46–49.)

Plaintiff concludes by arguing “[o]ther defendants were directly involved in California based transactions.” (Opp. at p. 8:4–5.) The statements that follow, many of which do not concern the particular moving defendants here, are insufficient to elucidate why Plaintiff believes any moving defendant purposefully availed itself of the benefits of the forum, as compared to communicating with a forum resident (like Mr. Givens), and how such contacts have a sufficient nexus to her claims.
Notwithstanding the insufficiency of Plaintiff’s presentation, it is not self-evident from the record that a basis for the exercise of jurisdiction over Defendants exists.

For all of these reasons, Plaintiff fails to carry her burden of proving the factual bases justifying the exercise of personal jurisdiction over Defendants.

B. Means of Naming Defendants

Defendants take issue with whether Plaintiff was genuinely ignorant of their identities and, thus, whether they were properly named as doe defendants. But in advancing this argument, Defendants do not clearly connect their argument to the relief they seek in their motion and mention the concept of relation back in a manner that obfuscates their position. Their conclusion does not clarify the exact nature of their argument as they simply state that: “If [Plaintiff] joins the moving Defendants, she cannot join them as Doe Defendants.” (Mem. of Pts. & Auth. at p. 20:2–3.)

For context, Code of Civil Procedure “[s]ection 474 allows a plaintiff who is ignorant of a defendant’s identity to designate the defendant in a complaint by a fictitious name (typically, as a ‘Doe’), and to amend the pleading to state the defendant’s true name when the plaintiff subsequently discovers it.” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371.) “When a defendant is properly named under section 474, the amendment relates back to the filing date of the original complaint.” (Ibid.) A motion to quash is not the proper vehicle for raising the issue of whether an amendment under Section 474 relates back for the purpose of the statute of limitations. (See A.N. v. County of L.A. (2009) 171 Cal.App.4th 1058, 1063.)

As distinct from the issue of whether an amendment relates back for the purpose of the statute of limitations, a party may move to quash service of the summons if they are effectively absent from the litigation due to noncompliance with Code of Civil Procedure section 474. (See McClatchy, supra, 247 Cal.App.4th at p. 375.) This particular impediment to the exercise of personal jurisdiction rests on the theory that: “If the terms of… section 474 have not been complied with, the purported defendant has not been named as such in the complaint. A service upon one not named in a complaint does not confer jurisdiction to proceed upon the complaint against him, and a motion to quash is proper.” (Id. at p. 376 [internal citations and quotation marks omitted].) In other words, the defect in personal jurisdiction arises from a party’s complete absence from the litigation in the first instance.

Here, Defendants are correct that Plaintiff identifies them and alleges facts about their conduct in her proposed second amended complaint in a manner that calls into question whether she was truly ignorant of the facts at that time. With that said, because there is no basis for the exercise of personal jurisdiction, it is unnecessary to determine whether their motion should be granted for this additional reason.

C. Conclusion

Plaintiff fails to present evidence and legal analysis to support the conclusion that Defendants—Washington entities—have minimum contacts with California sufficient to support the exercise of personal jurisdiction. Defendants’ motion to quash is, therefore, GRANTED.

The Court will prepare the order.

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