Filed 6/25/20 Linlor v. Marketing Labs, LLC CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JAMES LINLOR,

Plaintiff and Appellant,

v.

MARKETING LABS, LLC et al.,

Defendants and Respondents.

D075750

(Super. Ct. No. 37-2017-00000692- CU-BT-NC)

APPEAL from an order of the Superior Court of San Diego County, Robert P. Dahlquist, Judge. Affirmed.

James Linlor, in pro. per., for Plaintiff and Appellant.

Niddrie, Addams, Fuller, Singh and Rupa G. Singh for Defendants and Respondents.

Appellant James Linlor appeals a trial court decision granting defendants’ motion to quash service, arguing California has personal jurisdiction over the named defendants, all residents of Florida, because they have been texting and calling Linlor in violation of his phone numbers’ inclusion on the Do Not Call list. Linlor further seeks our review of a sanctions motion filed in the lower court but never ruled upon. We conclude Linlor did not meet his burden of proof regarding personal jurisdiction, and we will affirm. We do not have jurisdiction to consider the sanctions motion.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2017, Linlor filed a lawsuit against Marketing Labs LLC, Offline Marketing Labs LLC, and Adam Teece (collectively, the defendants).

After Linlor moved for leave to file a second amended complaint, the trial court continued the hearing so Linlor could provide proper notice to the defendants. The trial court continued the motion a second time for failure to provide notice, and it also listed substantive defects in the motion. The hearing was continued a third time, to November 30, 2018, for failure to timely serve the defendants.

No party appeared at the November 30 hearing; the court granted Linlor’s motion and ordered him to file and serve the second amended complaint (SAC) by December 7, 2018. Linlor did so, serving the defendants by mail in Florida.

The SAC alleged violations of the Telephone Consumer Protection Act (TCPA) (47 U.S.C. § 227 et seq.), California Business and Professions Code sections 17590-17595 and 17511.5, and California Civil Code, section 1770, subdivision [(a)](22)(A). Linlor alleged he began receiving unsolicited text messages and phone calls from the defendants in 2015, despite his registration with the Do Not Call list. The messages offered quick cash, student loan services, healthcare insurance, or other lending options, and they referred him to moneylending websites. None of the websites identified in the complaint contained the defendants’ domain names.

The SAC recognized all the defendants were citizens and residents of Florida, asserted the defendants conducted business in California, and sought treble and punitive damages.

In December 2018, after the court granted Linlor’s motion to amend the complaint but before the defendants’ response was due, Linlor filed a “Motion for Order to Show Cause,” asserting violations of Code of Civil Procedure, section 128.5 and California Rule of Court, rule 8.32(a) (rule 8.32(a)) against defense counsel. In it, he alleged: (1) defense counsel refused to provide a current address for the defendants in Florida before they had been served; (2) defense counsel failed to maintain updated addresses for all the defendants with the trial court before they had entered appearances; (3) defense counsel refused to accept service on behalf of his Florida clients; and (4) Teece, who was named individually and also is the owner of the other defendant entities, evaded service in Florida.

The defendants specially appeared to move to quash service for lack of jurisdiction and to oppose the motion for sanctions. They submitted a declaration from Teece, explaining Offline Marketing Labs, LLC was administratively dissolved in 2013, and none of the defendants did business in California or engaged in any telemarketing in California or anywhere else. The defendants supplied documentation from the Florida Secretary of State’s website regarding the locations and statuses of the businesses named in the suit.

The defendants also opposed the sanctions motion, noting trial counsel was not obligated to provide an address for service before a valid summons and complaint had been served. Defendants explained there was no legal duty to accept service in California, particularly in light of defense counsel’s retention to quash service for lack of personal jurisdiction. Defendants further argued that because they had not made a general appearance, they had not entered the action, and section 128.5 and rule 8.32(a) were therefore inapplicable.

The trial court granted the motion to quash on February 15, 2019, concluding Linlor had failed to establish the defendants sent the texts or calls at issue, thereby failing to demonstrate specific personal jurisdiction. It also determined there was no general jurisdiction. Linlor’s opening brief states the trial court further indicated a disclination to grant sanctions, while taking the motion off calendar at Linlor’s request.

On March 6, 2019, Linlor filed a motion for reconsideration of the order quashing service. He attached website printouts from one of the money lending websites identified in the texts or calls he received, Money2.me, and he argued it was connected to defendant Marketing Labs, LLC in Florida because the website indicated Money2.me did business as “MarketingLabs, LLC” and provided “info@MarketingLabs.com” as its contact email. Before the trial court responded to the motion, Linlor filed his Notice of Appeal from the order quashing service.

Linlor appeals the court’s order to quash service based on lack of personal jurisdiction arguing newly-acquired website evidence demonstrates sufficient contacts to satisfy personal jurisdiction requirements. He further seeks sanctions against defendants based on the motion he filed and then took off calendar in the underlying matter, arguing the trial court improperly failed to consider it. Based on the evidence before the trial court, we conclude California lacks personal jurisdiction over the defendants and we will affirm. We have no jurisdiction over the sanctions issue.

I

PERSONAL JURISDICTION

“Once a defendant moves to quash out-of-state service of process for lack of jurisdiction, the plaintiff has the burden of proving jurisdiction by a preponderance of the evidence. [Citation.] When the evidence conflicts, we review the trial court for abuse of discretion. [Citation.] When the parties do not dispute the facts, we review the issue de novo.” (As You Sow v. Crawford Labs. (1996) 50 Cal.App.4th 1859, 1866 (As You Sow).) The facts are not disputed. Therefore, we review their legal significance de novo.

Section 410.10 authorizes California courts to exercise jurisdiction over parties on any basis not inconsistent with the federal or state constitutions. Due process permits California courts to exercise personal jurisdiction over nonresidents who have minimum contacts with the state (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 474) as long as maintenance of the suit does not offend ” ‘traditional notions of fair play and substantial justice’ ” ( Int’l. Shoe Co. v. Wash. (1945) 326 U.S. 310, 316). Whether the exercise of personal jurisdiction meets due process requirements depends on the quality and nature of a defendant’s activity in the state. (Id. at pp. 317-319.) The plaintiff bears the burden of establishing facts of jurisdiction by a preponderance of the evidence. (Arnesen, supra, 31 Cal.App.3d at pp. 994-995.) Evidence “may be in the form of declarations with [a] verified complaint being treated as a declaration for that purpose.” (Id. at p. 995.)

California has general jurisdiction over nonresident defendants if the defendant’s contacts with the state are ” ‘substantial . . . continuous and systematic.’ ” (Cornelison v. Chaney (1976) 16 Cal.3d 143, 147.) California may exercise specific jurisdiction, for the purposes of a particular cause of action, when contact with the state gives rise to the cause of action. (Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. 915, 923; As You Sow, supra, 50 Cal.App.4th at p. 1867.)

Defendants are not citizens or residents of California; they are domiciled in Florida. (See Daimler AG v. Bauman (2014) 571 U.S. 117, 137 [general jurisdiction based on domicile].) None own real property in California or were served in California. (See Arnesen, supra, 31 Cal.App.3d at p. 995 [general jurisdiction arising from property ownership or service in forum state].) And none consented to the exercise of personal jurisdiction. (See ibid. [general jurisdiction when party consents].) Although Linlor alleges in his unverified complaint that the text messages he received in California demonstrate a substantial connection with the state, Teece’s declaration makes clear that none of the named defendants conducted any business in the State of California or with residents of the state through interstate commerce. Thus, the court lacks general jurisdiction.

A defendant is subject to specific jurisdiction if the suit-related conduct creates “a substantial connection with the forum State.” (Walden v. Fiore (2014) 571 U.S. 277, 284.) Linlor argues the unsolicited communication giving rise to the complaint came from the named defendants and was directed at California residents. He provided the trial court a declaration, which he labeled an “attestation,” offering his beliefs that the defendants had violated the laws as specified in the complaint, that defendants failed to provide him with their mailing addresses or to accept personal service, and that defendants had conducted business in California by making unsolicited calls and sending unsolicited text messages to him. His argument was then—and is now—that the calls he received were from the defendant companies; however, none of the evidence submitted to the trial court supports that. Linlor’s “beliefs” do not constitute factual evidence upon which a court could properly make a determination. (Goodman v. Citizens Life & Casualty Ins. Co. (1967) 253 Cal.App.2d 807, 820 [“Statements in a declaration on information and belief are of no evidentiary value.”].) Accordingly, the only evidence before the court demonstrated that the defendants had no contact with California, and the court properly granted the motion to quash service.

II

SANCTIONS MOTION

Linlor next argues sanctions should be awarded against defendants and their attorney for violating section 128.5 and rule 8.32(a) for evading service of process and refusing to provide address information. Linlor notes that he did not withdraw his motion, and he renews the sanctions request on appeal.

“A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment.” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) We do not have jurisdiction to consider this argument on appeal because there is no order or judgment on the record for us to review. Although parties can appeal monetary sanctions directly when the sanction exceeds $5,000 (Code Civ. Proc., § 904.1, subd. (a)(12)), and appellate courts can consider sanction orders of less than $5,000 at their discretion upon petition for an extraordinary writ (id. at § 904.1, subd. (b)), here there is no sanctions order. The court did not direct any party to pay sanctions—or even address sanctions in the order appealed.

Linlor does not provide any legal basis for seeking sanctions on appeal, and this request does not fall within any of the statutes that provide for appeals. (See Code Civ. Proc., § 904.) “Matters not properly raised . . . will be deemed forfeited.” (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 600.)

DISPOSITION

The order is affirmed. Respondents are awarded their costs on appeal.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

O’ROURKE, J.