Case Number: BC632526 Hearing Date: June 06, 2018 Dept: 4

MOVING PARTIES: Defendant Sunrise Hospital and Medical Center, LLC

RESPONDING PARTY: None

Motion to Quash Service of Summons on Complaint and to Dismiss Sunrise from this Action for Lack of Jurisdiction

The court considered the moving papers.

BACKGROUND

On September 1, 2016, plaintiff Nicolas Perez (self-represented) filed a complaint against defendants Treasure Island Hotel & Casino for general negligence based on premises liability and Sunrise Medical Center for medical malpractice. Plaintiff alleges that while he was playing the slot machine on the first floor at Treasure Island, a piece of wood and metal that were attached to the slot machine became dislodged and slammed into plaintiff’s leg, causing an open wound and required plaintiff to be transported to the hospital.

On May 10, 2018, the court granted Treasure Island LLC’s motion to quash service of the summons and complaint.

DISCUSSION

Defendant Sunrise Hospital and Medical Center, LLC (“Sunrise”) requests that the court quash service of summons for lack of personal jurisdiction and to dismiss the action against it. Defendant contends that it not subject to personal jurisdiction in California and that it was not properly served.

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .” CCP § 418.10(a). “A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” CCP § 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.”’” Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal. 4th 1054, 1061 (citations omitted). “The concept of minimum contacts also requires states to observe certain territorial limits on their sovereignty. It ‘ensure[s] that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.’” Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 445 (citing World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 292). “[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.’” Snowney, 35 Cal. 4th at 1061 (citing Kulko v. California Superior Court (1978) 436 U.S. 84, 92).

“When a defendant moves the trial court to quash service of summons for lack of personal jurisdiction, the plaintiff has the initial burden of proving that sufficient contacts exist

between the defendant and California to justify the exercise of personal jurisdiction.” Malone v. Equitas Reinsurance Ltd. (2000) 84 Cal. App. 4th 1430, 1435-1436 (citation omitted). “Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable.” Vons, 14 Cal. 4th at 449 (citation omitted).

“Personal jurisdiction may be either general or specific.” Vons Companies, 14 Cal. 4th at 445.

A. General jurisdiction

“General jurisdiction exists when a defendant is domiciled in the forum state or his activities there are substantial, continuous, and systematic.” Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal. App. 4th 1254, 1258-59. “General jurisdiction is proper only where the defendant’s contacts in the forum are continuous and systematic.” Id. at 1259. “Continuous and systematic contacts include such activities as maintaining an office and employees in the forum, use of forum bank accounts, and the marketing or selling of products in the forum state.” Id. (citation omitted). The “standard for establishing general jurisdiction is fairly high,” and requires that the defendant’s contacts be of the sort that approximate physical presence. Elkman v. National States Ins. Co. (2009) 173 Cal. App. 4th 1305, 1315. “Factors to be taken into consideration are whether the defendant makes sales, solicits or engages in business in the state, serves the state’s markets, designates an agent for service of process, holds a license, or is incorporated there.” Id.

Defendant presents evidence that Sunrise is a Nevada corporation. Its principal place of business is 3186 S. Maryland Parkway, Las Vegas, Nevada. Sunrise provides medical services at its principal place of business in Las Vegas. Sunrise does not have a California business license or own property in California. Phillip Baker Decl., ¶¶4-8.

The court finds that Sunrise does not have a physical presence in California.

In the absence of a physical presence in the forum state, the defendant must have contacts with the forum state that are “so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction.” Vons Companies, 14 Cal. 4th at 446. There is no evidence that Sunrise has contacts with California that are “so wide-ranging.”

Thus, the court finds that it does not have general jurisdiction over Sunrise.

B. Specific jurisdiction

“If . . . the defendant’s activities in the forum are not so pervasive as to justify the exercise of general jurisdiction over him, then jurisdiction depends upon the quality and nature of his activity in the forum in relation to the particular cause of action. In such a situation, the cause of action must arise out of the act done or transaction consummated in the forum, or defendant must perform some other act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws.” Cornelison v. Chaney (1976) 16 Cal. 3d 143, 147-148. This is called “specific jurisdiction.” Helicopteros Nacionales de Columbia v. Hall (1984) 466 U.S. 408, 411, n.8. A nonresident defendant “may be subject to the specific jurisdiction of the forum, if the defendant has purposefully availed himself or herself of the forum benefits (Burger King [Corp. v. Rudzewicz (1985) 471 U.S. 462, 472-73] . . .), and the ‘controversy is related to or “arises out of” a defendant’s contacts with the forum.’” Vons Companies, 14 Cal. 4th at 446 (citation omitted). “[A]s the relationship of the defendant with the state seeking to exercise jurisdiction over him grows more tenuous, the scope of jurisdiction also retracts . . . .” Cornelison, 16 Cal.3d at 148.

1. Purposeful availment

“The purposeful availment inquiry . . . focuses on the defendant’s intentionality. This prong is only satisfied when the defendant purposefully and voluntarily directs [its] activities toward the forum so that [it] should expect, by virtue of the benefit [it] receives, to be subject to the court’s jurisdiction based on[its] contacts with the forum. Thus, purposeful availment occurs

where a nonresident defendant purposefully direct[s] [its] activities at residents of the forum, purposefully derive[s] benefit from [its] activities in the forum, create[s] a substantial connection with the forum, deliberately has engaged in significant activities within the forum, or has created continuing obligations between [itself] and residents of the forum. By limiting the scope of a forum’s jurisdiction in this manner, the ‘purposeful availment’ requirement ensures that a defendant will not be hailed into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts. Instead, the defendant will only be subject to personal jurisdiction if [it] has clear notice that [it] is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing his connection with the state.” Snowney, 35 Cal. 4th at 1062-1063 (citations omitted).

There is no evidence that defendant purposely directed activities at residents of California, that defendant engaged in significant activities within California, or has created continuing obligations between itself and California residents.

The court finds that there is no evidence of any purposeful availment.

2. Whether claim arises out of defendant’s contacts

The second requirement for specific jurisdiction is that the controversy arises out of defendant’s contacts with California. Vons Companies, 14 Cal. 4th at 446. “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. The due process clause is concerned with protecting nonresident defendants from being brought unfairly into court in the forum, on the basis of random contacts.” Id. at 452. Thus, as “the relationship of the defendant with the state seeking to exercise jurisdiction over him grows more tenuous, the scope of jurisdiction also retracts, and fairness is assured by

limiting the circumstances under which the plaintiff can compel him to appear and defend.” Id. at 452 (citing Cornelison, 16 Cal. 3d at 148). “The crucial inquiry concerns the character of defendant’s activity in the forum, whether the cause of action arises out of or has a substantial connection with that activity, and the balancing of the convenience of the parties and the interests of the state in assuming jurisdiction.” Id. at 452-53. However, “there must be a substantial connection between the forum contacts and the plaintiff’s claim to warrant the exercise of specific jurisdiction.” Id. at 452; see Cornelison, 16 Cal. 3d at 148-150 (a substantial connection, or “nexus” must exist between the claim and the defendant’s California-related activities).

Plaintiff’s claim for medical malpractice arises from his visit to Sunrise. He alleges that once he arrived at Sunrise for treatment of his open wound, he was required to fill out documents and was forced to wait hours before even seeing a nurse. He alleges that he was forced to wait more hours to be seen by a doctor. The medical facility was not crowded and the wait he had to endure was tantamount to negligent infliction of emotional distress. He alleges that he never received any medical treatment after waiting all those hours, and he was forced to seek his own medical attention in his own hometown. Complaint, GN-1.

The court finds that there is no relationship between the tort of medical malpractice and any California-related activities, because there is no evidence of California-related activities.

3. Fair play and substantial justice

“Finally, in analyzing the exercise of specific jurisdiction, ‘[o]nce it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with “’fair play and substantial justice.”’ Courts may evaluate the burden on the defendant of appearing in the forum, the forum state’s interest in adjudicating the claim, the plaintiff’s interest in convenient and effective relief within the forum, judicial

economy, and ‘the shared interest of the several States in furthering fundamental substantive social policies.’” Vons Companies, 14 Cal. 4th 447-48 (citations omitted) (internal quotations omitted).

The court finds that it would be unreasonable to assert jurisdiction over defendant for a claim arising from allegations of a long wait and lack of treatment that occurred in Nevada merely because plaintiff is a resident of California. Defendant can “credibly contend that litigating in California would impose an unreasonable burden,” especially because the incident occurred in Nevada and defendant resides in Nevada. Further, plaintiff has not shown that California has a stronger interest than Nevada in asserting jurisdiction in this matter.

Thus, the court finds that it does not have specific jurisdiction over defendant.

Improper service

The proof of service filed on March 20, 2018 indicates that “Sunrise Medical Center” was purportedly served by personal service on March 2, 2018 on “Yesenia Front Desk” by a person who is not a registered process server.

The court finds that service was improper. “Yesenia” is not a person authorized by Sunrise to receive service of process and is not identified as the president, CEO, manager of the LLC, Vice President, Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, Controller, or Chief Financial Officer. Baker Decl., ¶9. See CCP §416.40.

For all of the foregoing reasons, the court GRANTS defendant Sunrise Hospital and Medical Center, LLC’s motion to quash service of summons and complaint.

The court orders that the action is DISMISSED as to defendant Sunrise.

Moving defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 6, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court