Case Name:   Diesel Direct West, Inc. v. Daylight Foods, Inc.

Case No.:       1-13-CV-255930

 

After full consideration of the evidence, arguments, authorities, and only those papers submitted timely by each party, the Court makes the following rulings:

 

Currently before the Court, is the motion to quash service of summons by cross-defendant Diesel Direct, Inc. (“Diesel Direct, Inc.”) on the ground that the Court lacks personal jurisdiction pursuant to Code of Civil Procedure Section 418.10, subdivision (a)(1).  Diesel Direct, Inc. asserts that it is a Massachusetts corporation and does not have the requisite minimum contacts with the state of California to subject it to the jurisdiction of the California courts.  In opposition, cross-complainant Daylight Foods, Inc. (“Daylight Foods”) argues that Diesel Direct, Inc. has sufficient minimum contacts with the forum state to establish both general and specific jurisdiction.

 

Daylight Foods’ request for judicial notice of exhibits 1, 2, and 3 is DENIED because there is no indication that those exhibits contain facts that are not reasonably subject to dispute and easily verified such that the website printouts would be proper subjects of judicial notice under Evidence Code section 452, subdivision (h).  (See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145; see also Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194 [the contents of commercial web sites are “plainly subject to interpretation and for that reason not subject to judicial notice”].)  Daylight Foods’ request for judicial notice of exhibit 4 is GRANTED pursuant to Evidence Code section 452, subdivision (c) because the printout from the California Secretary of State’s website is an official act.  (See Pedus Building Services, Inc. v. Allen (2002) 96 Cal.App.4th 152, 156, fn. 2.)

 

The evidence provided by Daylight Foods, especially viewed in light of William McNamara’s (“Mr. McNamara”) declarations, does not demonstrate that Diesel Direct, Inc. had any contacts with California, let alone systematic, wide-ranging, and continuous contacts, sufficient to warrant the exercise of general jurisdiction.[1]  (See Buckeye Boiler Co. v. Super. Ct. (1969) 71 Cal.2d 893, 898-899; see also Cornelison v. Chaney (1976) 16 Cal.3d 143, 147; see also Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1315.)

 

Mr. McNamara declares that Diesel Direct, Inc. is a Massachusetts corporation that does not have any offices or employees located in California, is not qualified to do business in California, and does not have any operations in California.  (See McNamara Dec., ¶¶ 1-14.)  He further declares that Diesel Direct, Inc. and Diesel Direct West, Inc. are affiliated, but ultimately separate and distinct corporate entities, and Diesel Direct, Inc. has never entered into any agreement with Daylight Foods.  (See id.)

 

The printouts from the “Diesel Direct®” website submitted by Daylight Foods do not demonstrate that Diesel Direct, Inc. does business in or has any contacts with California as the website is generally titled “Diesel Direct®” and is, according to Mr. McNamara, used to market both Diesel Direct, Inc. and Diesel Direct West, Inc.  (See McNamara Reply Dec., ¶¶ 2-7.)  Mr. McNamara explains that while the map on the locations tab of the website indicates that services are provided in California, it is only Diesel Direct West, Inc. that has operations in California and the headquarters located in Sacramento, California on the website are the headquarters of Diesel Direct West, Inc., not Diesel Direct, Inc.  (See id.)  Furthermore, the website’s use of “we” or “the company” is typical and actually expected of affiliated companies, and such facts do not establish agency for purposes of jurisdiction.[2] (See F. Hoffman-La Roche, Ltd. v. Super. Ct. (2005) 130 Cal. App. 4th 782, 801 quoting Sonora Diamond Corp. v. Super. Ct. (2000) 83 Cal.App.4th 523, 540–541, 550.)

 

In addition, the “Sales and Use Tax Permit Verification” is for an entity with a different name, “Direct Diesel Inc.,” which Mr. McNamara declares he is unfamiliar with and, thus, does not demonstrate any contact with California.  (See McNamara Reply Dec., ¶ 6.)  Moreover, the duplicate ticket and the credit application provided by Daylight Foods do not support Daylight Foods’ contention that Diesel Direct, Inc. entered into a contract with it because the duplicate ticket states at the top of the document that it was issued by “Diesel Direct West” and the credit application generally references “Diesel Direct®,” which is used to refer to both companies.

 

Additionally, the last and only piece of evidence that indicates that Diesel Direct, Inc. may have contacts with California is the Linkedin page of Mr. Johnson.  However, the Linkedin page of Timothy Johnson is not an affidavit or competent evidence.  (See Ragland v. U.S. Bank National Assn., supra, at p. 194; see also Tank v. Deutsche Telekom, AG, 2013 U.S. Dist. LEXIS 56096 (N.D. Ill. Apr. 19, 2013); see also Shkolnikov v. JPMorgan Chase Bank, 2012 U.S. Dist. LEXIS 177573 (N.D. Cal. Dec. 14, 2012).)  In addition, and it is contradicted by Mr. McNamara’s sworn declaration that Direct Diesel, Inc. does not has employees in California and Mr. Johnson is not an employee of Diesel Direct, Inc., but an employee of Diesel Direct West, Inc.  (See McNamara Reply Dec., ¶ 7.)

 

Finally, Daylight Foods does not argue in its papers that Diesel Direct West, Inc. is the agent of Diesel Direct, Inc. or offer any evidence that suggests that Diesel Direct West, Inc. is the agent of Diesel Direct, Inc., such that personal jurisdiction may be established over Diesel Direct, Inc. based upon Diesel Direct West, Inc.’s contacts with California.  (See Magnecomp Corp. v. Athene Co. (1989) 209 Cal.App.3d 526, 535 [stating that “courts consistently exercise personal jurisdiction over corporations based upon their agents’ activities within the forum state” and finding that agency may be established by principal’s statement that third party was his agent and directed to transact business on principal’s behalf]; see also Burbank v. National Casualty Co. (1941) 43 Cal.App.2d 773, 781 [the burden of proving the existence of an agency rests on the one affirming its existence]; see also Lindsay-Field v. Friendly (1995) 36 Cal.App.4th 1728, 1734 [ostensible authority of an agent cannot be based on the agent’s conduct alone; there must be evidence of conduct by the principal which causes a third party reasonably to believe the agent has authority].)  In addition, Daylight Foods does not attempt to argue in its papers and the cross-complaint does not contain any allegations that Diesel Direct, Inc. is the alter ego of Diesel Direct West, Inc.

 

Moreover, Daylight Foods has not presented any evidence sufficient to warrant the exercise of specific jurisdiction.  Since Daylight Foods did not present any evidence that Diesel Direct, Inc. had any contacts with California, it failed to demonstrate that Diesel Direct, Inc. purposefully availed itself of the benefits of the forum state or that the controversy is related to or arises out of Diesel Direct, Inc.’s contacts.  (See Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 473; see also Anglo Irish Bank Corp., PLC v. Sup. Ct. (2008) 165 Cal.App.4^th 969, 978-979.)  As indicated above the only evidence demonstrating a possible contact with California is the Linkedin page of Mr. Thompson and Daylight Foods does not present any evidence that indicates that Mr. Thompson was involved or participated in the transactions with Daylight Foods or that he had any contact whatsoever with Daylight Foods.  Given the absence of any contacts between Diesel Direct, Inc. and California, it would be unreasonable and unfair to exercise specific jurisdiction over Diesel Direct, Inc.  (See Anglo Irish Bank Corp., PLC v. Sup. Ct., supra, 165 Cal.App.4^th at pp. 979-980.)

 

Accordingly, Diesel Direct, Inc.’s motion to quash service of summons is GRANTED.

 

Diesel Direct, Inc.’s request for attorney’s fees pursuant to Civil Code section 1717, subdivision (a) is DENIED because the portion of the alleged contract that purportedly provides for attorney’s fees and costs is crossed out such that it is not clear that the same was part of the terms of the contract, and Diesel Direct, Inc. does not provide any evidence as to the amount of attorney’s fees and costs it purportedly incurred.  (See Complaint, p. 5, see also Civ. Code  § 1717, subd. (a) [“that “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs”].)

 

The Court will prepare the order.

 

[1] The Court will not consider the belatedly filed declarations either side submitted Arguments and evidence raised for the first time in reply briefs will not be considered, unless good reason is shown for failure to present them before.  (See Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 979.)  The parties have not explained why they failed to submit the additional declarations with their respective moving and opposition papers.

Even if the Court considered same, it would not have altered the conclusion reached in this tentative decision.

 

[2] In its reply papers, Diesel Direct, Inc. cites Grant v. Waste Management, Inc., 2009 Cal. App. Unpub. LEXIS 973 (Cal. App. 3d Dist. Feb. 4, 2009) for the proposition that use of the same trade name for marketing purposes has no bearing on whether personal jurisdiction exists.  However, this is an unpublished case and California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication.