2018-00226760-CU-BT

Frederick Saul vs. Cap Call, LLC

Nature of Proceeding: Motion to Dismiss for Lack of Personal Jurisdiction

Filed By: Frankston, Daniel

Defendant Cap Call, LLC’s (“CCL”) motion to dismiss complaint for lack of personal jurisdiction is GRANTED but with leave to amend, as follows.

Both moving and opposing counsel failed to comply with CRC Rule 3.1110(b)(3)-(4).

Moving counsel’s objections to evidence fail to comply with CRC Rule 3.1354(b).

Although the notice of motion provided notice of the court’s tentative ruling system as required by Local Rule 1.06(D), the notice does not comply with that rule. Moving counsel is directed to review the Local Rules, effective 1/1/2019.

Factual Background

This action arises out of a series of loans extended by CCL to plaintiff Phoenix Logistics Supply Chain Solutions, Inc. (“PLSCS) in 2015 and 2016. Plaintiff’s First Amended Complaint (“1AC”) admits that CCL is headquartered in New York State and “did business throughout the State of California during all pertinent times.” The 1AC now alleges that CCL’s loans were usurious and that CCL not only misrepresented material facts but also violation Business & Professions Code §17200 et seq.

CCL now moves to dismiss the 1AC on the grounds CCL is not subject to personal jurisdiction in California because it is a Delaware LLC with its principal place of business in New York, has never done business in California, has never had an office or employees here, and owns no property in California. The moving papers are supported by a declaration by CCL’s “founder and owner,” Evan Marmott, which essentially avers that CCL has never operated in California.

The opposition asserts that CCL advertises its lending services nationwide and even communicated directly with plaintiff PLSCS before entering into the first loan agreement, as well as many times thereafter. Plaintiff also insists CCL has even utilized California courts in an attempt to collect the sister-state judgment CCL obtained against PLSCS in New York but CCL now asserts California can assert no personal jurisdiction over CCL. The opposition argues CCL is subject to personal jurisdiction here because CCL has had substantial, systematic and continuous contacts with California. The sole evidentiary support for the opposition is a declaration not by the principal of PLSCS, Fred Saul, but rather a declaration by attorney Jonathan Saul which purports to authenticate a “printout from Defendant’s Facebook page,” the loan agreements between PLSCS and CCL, text messages and emails exchanged by PLSCS and CCL, a copy of PLSCS’ ledger, and printout from the Contra Costa Superior Court website and a copy of CCL’s Notice of Entry of Judgment on Sister-State Judgment.

Objections to Evidence

Defendant CCL’s objections to attorney Saul’s declaration in opposition are sustained.

Plaintiff (timely) filed no written objections to evidence.

Analysis

At the outset, the court notes it is well established that plaintiff, as the party seeking to establish personal jurisdiction over defendant, bears the burden of proving by a preponderance of the evidence that CCL has the requisite “minimum contacts” with California. (School Dist. Of Okaloosa County v. Sup. Ct. (1997) 58 Cal.App.4th 1126, 1131.) To meet this burden, plaintiff must provide competent, admissible evidence of jurisdictional facts which permit the trial court to form an independent conclusion on the issue of jurisdiction. (CenterPoint Energy, Inc. v. Superior Court (2007) 157 Cal.App.4th 1101, 1118.)

In the case at bar, the 1AC specifically asserts in Paragraph 3 that CCL “did business throughout the State of California during all pertinent times” and the opposition argues only that CCL has had substantial, systematic and continuous contacts with California sufficient to support the finding of personal jurisdiction over CCL. However, given that the CCL’s lack of foundation and hearsay objections to attorney Saul’s declaration in opposition have been sustained, this court finds no admissible evidence sufficient to demonstrate that CCL has the requisite substantial, systematic and continuous contacts with California so as to create “general” personal jurisdiction over CCL.

Moreover, given that the 1AC does not currently allege CCL “purposefully availed” itself of the privilege of doing business in California by deliberately engaging in communications and business with a resident of this state and the opposition is devoid of admissible evidence of such “purposeful availment” necessary to create “specific” personal jurisdiction over CCL (see, e.g., Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054; Hall v. LaRonde (1997) 56 Cal.App.4th 1342; Calder v. Jones (1984) 465 U.S. 783), this court holds that plaintiff has failed to carry his burden of producing admissible evidence sufficient to support a finding of CCL’s “minimum contacts” with California.

Conclusion

As plaintiff has failed to produce admissible evidence to enable this court to duly assert personal jurisdiction over CCL, the present motion to dismiss must be granted but with leave to amend the complaint so as to assert a potentially valid basis of California’s personal jurisdiction over CCL.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)