Opinion
A148786
11-28-2017
ANTONIO C. SIMONELLI, Plaintiff and Appellant, v. NEW YORK UNIVERSITY, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. CIV 1404832)
Plaintiff Antonio C. Simonelli appeals from an order granting defendant New York University's motion to quash service of summons for lack of personal jurisdiction. Simonelli contends specific jurisdiction over New York University (NYU) exists because his claims arise from NYU's actions purposefully directed at him in California.
We affirm.
FACTUAL AND PROCEDURAL HISTORY
Simonelli grew up in Marin County and went to college and law school at the University of California at Berkeley. He has a number of disabilities including cerebral palsy and extremely limited visual function. Simonelli's conditions affect his balance, coordination, walking, and fine motor abilities. He can read only with his left eye and lacks depth perception and peripheral vision. He is unable to drive a car.
Simonelli's Complaint Against NYU
Simonelli filed a complaint against NYU and 10 Doe defendants in Marin County Superior Court, alleging claims of negligence and disability discrimination. He alleged the following.
We recite Simonelli's pertinent allegations from his complaint, but to be clear, the trial court did not make findings of fact as to these allegations.
Bus Incident in Singapore
NYU operates a foreign studies program in Singapore in conjunction with the National University of Singapore (NUS). This program is referred to as NYU@NUS. During the summer of 2011 and the 2011-2012 academic year, Simonelli was a student at NYU@NUS in a dual LL.M. program. As part of the NYU@NUS program, NYU arranged for student housing and bus transportation from student housing to the NUS facilities. On September 12, 2011, Simonelli was thrown out of his seat on the NYU@NUS bus when it made a sharp turn on the way to NUS. He suffered injuries including a concussion and post-concussion syndrome. As a result of these injuries, he had increased difficulty concentrating and suffered recurring headaches. These conditions persisted throughout the remainder of the 2011-2012 academic year and affected his ability to absorb materials in lectures, to study, and to take examinations.
Examinations in Singapore
Simonelli requested that he be allowed to delay taking his course examinations in the NYU@NUS program because of continuing effects of his injuries resulting from the bus incident. He also offered to take an "aegrotat" degree, which he alleged is a degree typically awarded in the British university system when medical conditions prevent normal completion of academic requirements. NYU insisted that Simonelli complete his examinations for all of his courses by the end of the academic year and refused to grant him an aegrotat degree. Simonelli took his examinations "while his post-concussion syndromes were still persisting and before he had recovered from his injuries arising from the" bus incident, and as a result, his grades "were lower than he would have otherwise obtained in these courses."
Application to Tax LL.M. Program at NYU
Simonelli later applied for NYU Law School's Graduate Tax Program (Tax LL.M. program) for the 2014-2015 academic year and was denied admission. NYU explained its decision not to admit Simonelli to its Tax LL.M. program "involved examination of his legal coursework . . . at the NYU@NUS program." Simonelli appealed the denial decision to the NYU Law School Committee on Graduate Admissions and filed a discrimination complaint with NYU's Office of Equal Opportunity. His appeal was denied, and his discrimination complaint was rejected.
Based on the foregoing factual allegations, Simonelli claimed, in his first cause of action for negligence, that defendants failed to provide safe bus transportation to the NYU@NUS campus and failed to install appropriate seatbelts, handholds, or other restraints; that defendants did not use reasonable care to accommodate his injuries and disability arising from the bus incident; and that they did not exercise reasonable care in denying his application to the Tax LL.M. program. In his second cause of action for disability discrimination, Simonelli asserted defendants failed to make reasonable accommodations for his disabilities and discriminated against him because of his disability. He sought actual damages, injunctive relief "directing defendants to admit him to the Tax LL.M. program" and allowing him the options of either retaking his examinations at NYU@NUS or taking an aegrotat or similar degree, and attorneys' fees.
NYU's Motion to Quash Service of Summons
NYU moved to quash the service of summons for lack of jurisdiction. Simonelli opposed the motion. The trial court issued a tentative ruling granting the motion, and Simonelli contested the tentative ruling. After hearing argument on the motion, the trial court adopted its tentative ruling in favor of NYU.
DISCUSSION
A. General Principles of Personal Jurisdiction
California courts may exercise personal jurisdiction on any basis consistent with the federal and state constitutions. (Code Civ. Proc., § 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.' " ' [Citations.]" (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268 (Pavlovich).) "[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.' [Citations.] The test 'is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite "affiliating circumstances" are present.' [Citation.]" (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1061 (Snowney).)
Personal jurisdiction may be either general or specific. (Snowney, supra, 35 Cal.4th at p. 1062.) Here, Simonelli claims only that NYU is subject to specific jurisdiction. "When determining whether specific jurisdiction exists, courts consider the ' "relationship among the defendant, the forum, and the litigation." ' [Citations.] A court may exercise specific jurisdiction over a nonresident defendant only if: (1) 'the defendant has purposefully availed himself or herself of forum benefits' [citation]; (2) 'the "controversy is related to or 'arises out of' [the] defendant's contacts with the forum" ' [citation]; and (3) ' "the assertion of personal jurisdiction would comport with 'fair play and substantial justice' " ' [citations]." (Pavlovich, supra, 29 Cal.4th at p. 269.)
The United States Supreme Court explained in Walden v. Fiore (2014) ___U.S. ___, ___, 134 S.Ct. 1115, 1121 (Walden), "For a State to exercise jurisdiction consistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum State." The court emphasized, "[T]he relationship must arise out of contacts that the 'defendant himself' creates with the forum State. [Citation.] . . . We have 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. 1122.) In addition, "the 'minimum contacts' analysis looks to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there." (Ibid.)
" 'When a defendant moves to quash service of process' for lack of specific jurisdiction, 'the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction.' [Citation.] 'If the plaintiff meets this initial burden, then the defendant has the burden of demonstrating "that the exercise of jurisdiction would be unreasonable." ' [Citation.]" (Snowney, supra, 35 Cal.4th at p. 1062.) B. Standard of Review
"When the evidence of jurisdictional facts is not in dispute, the issue whether the defendant is subject to personal jurisdiction is a legal question subject to de novo review. [Citation.] . . . 'The ultimate question whether jurisdiction is fair and reasonable under all of the circumstances, based on the facts which are undisputed and those resolved by the court in favor of the prevailing party, is a legal determination warranting our independent review.' [Citation.]" (Burdick v. Superior Court (2015) 233 Cal.App.4th 8, 17.) C. Specific Jurisdiction
Simonelli's lawsuit is based on three alleged incidents or events. First, he was injured while riding a bus to the NYU@NUS program in Singapore. Second, he was denied a request to delay taking his course examinations and was denied his offer to take an aegrotat degree while he enrolled in the NYU@NUS program in Singapore. Third, he applied to NYU's Tax LL.M. program, which is located in New York, and was denied admission.
To comport with due process, California courts may exercise specific jurisdiction over NYU in this case only if: (1) NYU purposefully availed itself of the benefits of California, (2) the controversy is related to or arises out of NYU's contacts with California, and (3) assertion of personal jurisdiction would not offend notions of fair play and substantial justice. (See Pavlovich, supra, 29 Cal.4th at p. 269.) We conclude specific jurisdiction does not exist in this case.
1. Purposeful Availment
" 'The purposeful availment inquiry . . . focuses on the defendant's intentionality. [Citation.] This prong is only satisfied when the defendant purposefully and voluntarily directs his activities toward the forum so that he should expect, by virtue of the benefit he receives, to be subject to the court's jurisdiction based on' his contacts with the forum. [Citation.] Thus, the ' "purposeful availment" requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts [citations], or of the "unilateral activity of another party or a third person." [Citations.]' [Citation.] 'When a [defendant] "purposefully avails itself of the privilege of conducting activities within the forum State," [citation], 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 its connection with the State.' " (Pavlovich, supra, 29 Cal.4th at p. 269.) "[M]erely asserting that a defendant knew or should have known that his intentional acts would cause harm in the forum state is not enough to establish jurisdiction." (Id. at p. 270.)
Simonelli first argues that the nationwide scope of antidiscrimination laws put NYU on notice that it could be subject to suit in any state in which a student or applicant is a resident. This argument would mean that a defendant could be subject to personal jurisdiction in any forum state so long as the plaintiff resides in the forum state and the plaintiff's claim is based on federal law. Simonelli offers no authority for this novel and hugely expansive theory, and we reject it. It is Simonelli's burden to show NYU's "suit-related conduct" has created a "substantial connection" with California. (Walden, supra, ___ U.S.at p.___, 134 S.Ct. at p. 1121.) The fact that antidiscrimination laws apply nationwide has no bearing on NYU's suit-related conduct.
Simonelli next claims NYU "purposefully directed" its actions at him in California when it rejected him for its Tax LL.M. program while he was a resident of California and likewise when it earlier admitted him into the NYU@NUS while he was a resident of California. But, again, he cites no authority for the proposition that when a forum-state resident applies to an out-of-state school, the school's mere decision to admit or deny the application is sufficient to establish the school purposefully availed itself of the privilege of conducting activities within the forum state.
NYU responds that the fact it takes applications for its Singapore program and its Tax LL.M. program from California residents does not mean its activities were purposefully directed at California. "Otherwise," NYU argues, "anything short of an outright exclusion of Californians would suffice to meet the 'purposeful direction' prong." NYU has the better argument. As the Third Circuit Court of Appeal has observed, "Advanced educational institutions typically draw their student body from numerous states," but it does not follow that such institutions are subject "to suit on non-forum related claims in every state where a member of the student body resides." (Gehling v. St. George's School of Medicine, Ltd. (3d Cir. 1985) 773 F.2d 539, 542 (Gehling) [analyzing whether the defendant medical school had sufficient contacts with the state for general jurisdiction].) In other words, it takes more than just accepting applications from California residents for an out-of-state school to be subject to personal jurisdiction in California.
In Gehling, a student attending medical school in Grenada, West Indies, died during a school-sponsored road race in Grenada, and his parents sued the medical school in the student's home state of Pennsylvania. (Gehling, supra, 773 F.2d at p. 540.) The parents presented evidence that the medical school advertised in newspapers circulated in Pennsylvania and conducted a "media swing" that included Philadelphia, and that six percent of the student body was from Pennsylvania. The Third Circuit concluded that these facts did not establish general jurisdiction over the medical school. (Id. at pp. 541-543.) The parents brought a claim of breach of implied contract to exercise reasonable care to protect the student, relying on the application and acceptance documents. The Third Circuit concluded there was no specific jurisdiction over this claim where the evidence showed the student had applied for admission from Pennsylvania and the medical school then sent mail to him in Pennsylvania advising him of his acceptance and providing information about matriculation. (Id. at pp. 543-544.) The court explained, "[W]e do not believe this mailing constituted a substantial enough connection with the forum state to make reasonable an assertion of personal jurisdiction. If it were, [the medical school] would be amenable to suit for breach of contract, even where the breach and injury occurred in Grenada, in each state in which successful applicants resided at the time of their acceptance." (Id. at p. 544.)
Scherer v. Curators of University of Missouri and Law School Admission Council (D.Kan. 2001) 152 F.Supp.2d 1278 (Scherer) illustrates this point. There, a Kansas resident sued the University of Missouri law school in district court in Kansas alleging claims arising from the denial of his application to the law school. Arguing the Missouri law school was subject to specific jurisdiction in Kansas, the plaintiff relied on the facts that he sent his application materials from Kansas and that he received an email, a letter, and phone call from the law school in Kansas. (Id. at pp. 1279, 1284-1285.) The district court rejected the plaintiff's position, explaining it could not "conclude that the Law School 'purposefully availed' itself of the privilege of acting within Kansas by virtue of its responses to plaintiff's inquiries." (Id. at p. 1285.) In conclusion, the Kansas federal court held that its exercise of personal jurisdiction over the Missouri law school to litigate the plaintiff's claims, which related to his application to the law school, would violate due process. (Id. at p. 1286.)
We agree with the reasoning of Scherer, supra, 152 F.Supp.2d 1278. We consider Simonelli's arguments in favor of California exercising specific jurisdiction over NYU, but his arguments do not convince us the result here should be different from the result in Scherer.
a. Claims Related to Application to NYU's Tax LL.M. Program
Simonelli argues NYU's decision not to admit him to the Tax LL.M. program was targeted at him in California and affected him in California. However, the cases Simonelli cites to support his argument do not involve a forum resident applying to an out-of-state school, and are easily distinguishable on the facts. In Wright v. Xerox Corp. (D.N.J. 1995) 882 F.Supp. 399, 402-403, 405-406, an employee, who worked in New Jersey, alleged his out-of-state employer discriminated against him and then retaliated against him after he complained, and the district court held the out-of-state employer could be subject to jurisdiction in New Jersey for the employment claims. In Reihanifam v. Fresenius Medical Care N. Am. (C.D.Cal. 2013) 2013 U.S. Dist. LEXIS 189231, *1-5, 11-20, the plaintiff, who worked for his employer for 24 years from his home in California, alleged his out-of-state direct supervisor harassed and discriminated against him based on national origin and retaliated against him for complaining, and the district court held the supervisor was subject to specific jurisdiction in California. Similarly, in Ferrigno v. Philips Elecs. N. Am. Corp. (N.D.Cal. 2010) 2010 U.S. Dist. LEXIS 59036, *1-2, 12-16, an employee working in California alleged his supervisor, a citizen and resident of the Netherlands, discriminated against him based on age and retaliated against him, and the district court held the foreign supervisor was subject to specific jurisdiction in California. In all of these cases, the plaintiff worked for an employer in the forum state on an ongoing basis; that the employer could be subject to specific jurisdiction to defend claims arising out of the plaintiff's employment in the forum state is not surprising. In the present case, NYU did not employee Simonelli in California. Nor did NYU provide Simonelli an education in California. Thus, the cases Simonelli cites do not support his position that NYU is subject to specific jurisdiction solely because he, a California resident, applied to NYU's Tax LL.M. program from California.
In his reply, Simonelli cites for the first time Alexis v. Rogers (S.D.Cal. 2016) 2016 U.S. Dist. LEXIS 47031, which is likewise distinguishable. In that case, over the course of a year and a half, the plaintiff performed all her work in San Diego, California, except for four business trips out of state. After her employment was terminated, the plaintiff sued her corporate employer and an out-of-state individual defendant, who appeared to be the sole owner or controlling figure of the employer and who had hired her, fired her, signed her paychecks, and allegedly harassed her, although the most egregious incidents occurred on business trips outside California. (Id. at pp. *2-3, 15.) The district court found that exercising specific jurisdiction over the defendants for the plaintiff's employment claims was reasonable. (See id. at pp. *26, 29, 35 [denying the defendants' motion to dismiss for lack of personal jurisdiction].)
In its analysis, the district court observed that the plaintiff performed work in California on behalf of the defendants for over a year, there were "numerous phone calls, texts, emails and Skypes by Defendants to [the plaintiff] in California over the course of one year," and the defendants mailed paychecks to her in California. The court described these as jurisdictionally relevant contacts with California. (Alexis v. Rogers, supra, 2016 U.S. Dist. LEXIS 47031 at pp. *2224.) Simonelli suggests NYU's contact with California is somehow analogous to the facts of Alexis, but we are not convinced. Simonelli was not enrolled as a student of NYU while he was living in California, and he did not exchange numerous phone calls, texts, emails, and Skype calls with NYU over the course of a year in the application process.
Simonelli also cites for the first time in his reply Caruth v. International Psychoanalytical Assn. (9th Cir. 1995) 59 F.3d 126. There a plaintiff sued the International Psychoanalytical Association, alleging its decision to deny her membership and training analyst status was based on age discrimination. The court found purposeful availment because the defendant's "decision was directed at a California resident and was facilitated by site visits in California." (Id. at p. 128, italics added.) Thus, in Caruth defendant visited California more than once to inspect a site in California, and the decision at issue related to these site inspections. In Simonelli's case, there is no similar connection between NYU's admission decisions and the inspection of a site in California.
b. Claims Related to NYU@NUS
Simonelli argues NYU is subject to specific jurisdiction to defend his claims involving NYU@NUS because he was admitted to the program when he was a California resident. In response to this argument, NYU relies on Roman v. Liberty University, Inc. (2008) 162 Cal.App.4th 670 (Roman), in which the court held that California lacked specific jurisdiction over a Virginia university for claims arising from an incident that occurred in Virginia. In Roman, the plaintiff was recruited to play football at Liberty University. A recruiting coordinator visited the plaintiff at his home in Rialto, California, to offer him an athletic scholarship, and the plaintiff executed the scholarship agreement in California. Thereafter, the plaintiff attended the university in Virginia and played defensive back for its football team. While he was attending Liberty, the plaintiff and his roommate went out drinking, the roommate assaulted the plaintiff, and the plaintiff fell from a train trestle and sustained catastrophic brain injuries. He sued the university in California state court alleging it failed to "provide a 'safe and supportive environment' " and failed to protect the plaintiff from his roommate, who had a history of disruptive behavior. The university moved to quash service of summons for lack of personal jurisdiction, which the trial court granted. (Id. at pp. 674-676.) The Court of Appeal affirmed the trial court's decision, holding that the recruiting coordinator's visit to the plaintiff in California to recruit him and the university mailing the scholarship agreement to the plaintiff in California did not establish purposeful availment. (Id. at p. 680.) The court further concluded that "the nexus between Liberty's activities in California and the injury plaintiff suffered is so attenuated as to be virtually nonexistent." (Id. at p. 681.)
Simonelli attempts to distinguish Roman, arguing the Roman plaintiff's injuries had nothing to do with playing football, but Simonelli's ability to attend NYU@NUS depending entirely on NYU's ability to provide transportation and to make adjustments for his disability. He asserts his "admission to and ability to attend the NYU@NUS program directly concerned NYU's duty to provide safe transportation and academic adjustments for disabled students." We are not persuaded. Simonelli's claims are analogous to the Roman plaintiff's claim that the university failed to "provide a 'safe and supportive environment.' " (Roman, supra, 162 Cal.App.4th at p. 674.) Simonelli, like the Roman plaintiff, asserts the school breached a legal duty owed to him as a student of the school. In Roman, the university actively recruited the plaintiff in particular in California, yet this was not sufficient to establish purposeful availment. Here, NYU merely accepted Simonelli's application to the NYU@NUS program. (There is no claim Simonelli was specifically targeted for recruitment.)
In his reply Simonelli argues for the first time that his case is analogous to Snowney, supra, 35 Cal.4th 1054. We disagree. In Snowney, a California resident filed a class action against a group of Nevada hotels for failing to provide notice of an energy surcharge imposed on hotel guests. The plaintiff presented evidence that the Nevada defendants advertised extensively to California residents through billboards in California, California newspapers, and California radio and television stations, that they maintained a website touting the proximity of their hotels to California, and that a wholly-owned subsidiary of one of the defendants "maintained several offices in California to handle reservations and market defendants' hotels." (Id. at pp. 1059-1060.) Under those facts, the California Supreme Court found the "defendants purposefully and successfully solicited business from California residents [and i]n doing so, defendants necessarily availed themselves of the benefits of doing business in California and could reasonably expect to be subject to the jurisdiction of courts in California." (Id. at p. 1065.) The court emphasized its conclusion was "premised on defendants' purposeful and successful solicitation of business within California." (Id. at p. 1066.)
Most significantly in Snowney, the court found the claims arose out of the defendants' contact with California because they involved alleged false advertising in advertisements published and placed on the air in California. (Snowney, supra, 35 Cal.4th at pp. 1068-1069.) But in this case, Simonelli does not similarly claim NYU engaged in wrongful conduct in California. Further, unlike in Snowney, there is no evidence NYU targeted California residents to apply to its programs. As to Simonelli, it did no more than consider his application and accept him to the NYU@NUS program, which was located in Singapore.
Simonelli filed a request for judicial notice of five exhibits that were not before the trial court, NYU did not file a separate opposition, and we granted the unopposed motion on November 17, 2016. The exhibits are three documents apparently printed from NYU's website, a page from an NYU tax document from 2013, and case information from two California courts showing NYU was a plaintiff in lawsuits in California. Simonelli argued the website and the tax form are subject to judicial notice as "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy" (Evid. Code, § 452, subd. (h)), the factual statements in the websites are admissible as party admissions (id., § 1220), and state court records are judicially noticeable (id., § 452, subd. (d)).
Although we granted Simonelli's unopposed motion for judicial notice, on closer inspection of the exhibits, we find them irrelevant to the appeal. Exhibit 1 is website materials about campus visits and information sessions held September through November 2014 and in 2016. While it may be appropriate to take judicial notice of the existence of NYU's website (Searles Valley Minerals Operations, Inc. v. State Bd. of Equalization (2008) 160 Cal.App.4th 514, 519), these website documents are irrelevant because they postdate the incidents from which Simonelli's claims arise. (The Singapore incidents allegedly occurred in 2011 and 2012. He was denied acceptance to the Tax LL.M. program in April 2014. In any event, even if we accept the truth of the matters stated in the website documents, an outofstate school's recruitment activities in the forum state alone do not create specific jurisdiction over a state resident's claims arising from incidents that occur at the outofstate school. (Roman, supra, 162 Cal.App.4th. at p. 680 [recruiting visit to student's home in California insufficient for California to exercise jurisdiction over Virginia university for claims arising from incident in Virginia]; see Gehling, supra, 773 F.2d at pp. 541543 [Grenada medical school's advertisements in national newspapers and media swing through Pennsylvania insufficient to create specific jurisdiction in Pennsylvania for claims arising from student's death in Grenada].) Exhibit 2 is a printout of a website page regarding NYU residence and online study. This evidence is likewise irrelevant because it was printed in October 2016. At best, this exhibit shows, as of October 2016, NYU provided online instruction to its students. The fact that NYU students may take online courses while they are located outside New York is irrelevant to the question whether NYU targeted California residents to apply to its programs to such an extent that it could amount to purposeful availment. Exhibit 3 is application instructions for admission to certain graduate divisions at NYU Law School from 2017. This document has no relevance to the decision NYU made in 2014 regarding Simonelli's application to its Tax LL.M. program. Further, the "statement of diversity" highlighted by Simonelli states that its students "hail from around the world and bring with them a variety of experiences and viewpoints." It makes no mention of California as a specific target for its applicant pool.
(We do not consider Exhibits 4 and 5 here because Simonelli sought admission of these exhibits to address the third prong of the test for specific jurisdiction, fair play and substantial justice.)
Simonelli also argues the application process is "interactive between the institution and the applicant" and his case is akin to Moncrief v. Clark (2015) 238 Cal.App.4th 1000 (Moncrief). That case involved a failed purchase of farm equipment by a California partnership from the purported owner in Arizona. The defendant, an attorney representing the Arizona entity, called and emailed the plaintiff, an attorney for the California partnership, assuring him " 'unequivocally' " that the Arizona entity was the sole owner of the farm equipment. When it turned out a New York bank had an interest in the farm equipment, the California partnership sued the plaintiff for legal malpractice, and the plaintiff cross-complained against the defendant. (Id. at pp. 1003-1004.) The Court of Appeal found that the defendant's contacts with the plaintiff "were for the specific purpose of inducing the completion of the equipment sale," and, as such, met the purposeful availment requirement. (Id. at pp. 1006.)
The Moncrief court distinguished its facts from an earlier decision, Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal.App.4th 1254 (Shisler), in which the court held there was no specific jurisdiction over a Florida company that sold a California resident a used car through the internet. The court explained, "Of particular importance to this court in Shisler was the fact that while the Florida car dealer operated a passive Web site that was available to residents in California, the dealer did not target California for its sales. [Citation.] This court found that the lack of targeting of California residents meant that the car dealer did not avail itself of the benefits of California." (Moncrief, supra, 238 Cal.App.4th at p. 1007.) In Moncrief, on the other hand, the defendant "targeted [the plaintiff] with the specific purpose of inducing [his] client to finalize the purchase of farm equipment." (Ibid.)
Returning to Simonelli's case, NYU is more analogous to the Florida car dealership in Shisler than the Arizona attorney in Moncrief. NYU accepts applications from California residents just as it accepts applications from residents of all fifty states and from foreign applicants, but Simonelli presented no evidence that NYU targeted California residents or Simonelli in particular.
2. Relatedness of the Controversy with Forum Contacts
The California Supreme Court has "adopted a 'substantial connection' test and [has] held that the relatedness requirement is satisfied if 'there is a substantial nexus or connection between the defendant's forum activities and the plaintiff's claim.' [Citation.]" (Snowney, supra, 35 Cal.4th at p. 1068.) More recently, the United States Supreme Court explained in Walden, supra, ___ U.S.at p.___, 134 S.Ct. at p. 1122, "the relationship must arise out of contacts that the 'defendant himself' creates with the forum State," and "the 'minimum contacts' analysis looks to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there."
In Walden, the plaintiffs, residents of both California and Nevada, flew from Puerto Rico to Nevada, with a connection in Atlanta, Georgia. While they were at the airport in Atlanta, a police officer seized $97,000 in cash from them. The plaintiffs later sued the officer in Nevada district court, alleging the officer filed a false affidavit to show probable cause for forfeiture of the funds. (Walden, supra, ___ U.S.at p.___, 134 S.Ct. at pp. 1119-1120.) The Ninth Circuit Court of Appeals held the Nevada district court could exercise jurisdiction over the officer because he " 'expressly aimed' his submission of the allegedly false affidavit at Nevada by submitting the affidavit with knowledge that it would affect persons with a 'significant connection' to Nevada." (Id. at p. 1120.) The Supreme Court reversed, pointing out that no part of the officer's conduct occurred in Nevada. Thus, "when viewed through the proper lens—whether the defendant's actions connect him to the forum—[the officer] formed no jurisdictionally relevant contacts with Nevada." (Id. at p. 1124.)
The Walden court explained that the Ninth Circuit had reached the contrary conclusion by incorrectly shifting the analytical focus from defendant's contacts with the forum state to his contacts with the plaintiffs. "Rather than assessing [the officer's] own contacts with Nevada, the Court of Appeals looked to [the officer's] knowledge of [the plaintiffs'] 'strong forum connections.' [Citation.] In the court's view, that knowledge, combined with its conclusion that [plaintiffs] suffered foreseeable harm in Nevada, satisfied the 'minimum contacts' inquiry." (Walden, supra, ___ U.S.at p.___, 134 S.Ct. at p. 1124.) The Ninth Circuit's "approach to the 'minimum contacts' analysis impermissibly allows a plaintiff's contacts with the defendant and forum to drive the jurisdictional analysis. [The officer's] actions in Georgia did not create sufficient contacts with Nevada simply because he allegedly directed his conduct at plaintiffs whom he knew had Nevada connections. Such reasoning improperly attributes a plaintiff's forum connections to the defendant and makes those connections 'decisive' in the jurisdictional analysis. [Citation.] It also obscures the reality that none of [the officer's] challenged conduct had anything to do with Nevada itself." (Id. at pp. 1124-1125.)
Walden demonstrates the flaw in Simonelli's position. Simonelli contends his claims have a substantial nexus with NYU's California-related activities, but he focuses on NYU's contacts with him rather than its contacts with California.
With respect to the claim related to his application to the Tax LL.M. program, Simonelli relies on Snowney, but as we have observed, in Snowney the plaintiff alleged defendants engaged in false advertising in California. (Snowney, supra, 35 Cal.4th at pp. 1068-1069.) Simonelli does not similarly claim that NYU engaged in California-related activity that was itself wrongful.
As to his claim arising from the bus accident in Singapore, Simonelli asserts, "NYU's sponsorship of the foreign educational program was an action directed at Simonelli in California. A key component of the NYU@NUS program was the provision of housing and transportation." NYU provided housing and transportation in Singapore, not California. As Walden makes plain, our analysis focuses on NYU's suit-related conduct with California, not Simonelli's contacts with California or NYU's contacts with Simonelli. (Walden, supra, ___ U.S. at p.___, 134 S.Ct. at pp. 1121-1125.)
Finally, with respect to his claim related to taking exams at NYU@NUS, Simonelli argues, "Once again, the claim has sufficient nexus or connection to meet the relatedness standard because it is substantially related to NYU's provision of its educational program to Simonelli." It appears that Simonelli's argument is that he suffered an injury to his academic reputation, which he felt in California. But "mere injury to a forum resident is not a sufficient connection to the forum." (Walden, supra, ___ U.S. at p.___, 134 S.Ct. at pp. 1125.)
In sum, Simonelli cannot show a substantial connection between NYU's suit-related conduct and California. Therefore, he fails to meet the second prong of the test for specific jurisdiction, that the controversy is related to or arises out of the defendant's contacts with the forum. (Pavlovich, supra, 29 Cal.4th at p. 269.)
3. Conclusion
We conclude Simonelli has failed to meet his burden to show the first two prongs of the test for specific jurisdiction and, accordingly, further conclude the trial court properly granted NYU's motion to quash service of summons.
On appeal, Simonelli argues that NYU presented no evidence showing unfairness in litigating his claims in California rather than New York. This does not matter because Simonelli failed to establish the first two prongs. (See Sibley v. Superior Court (1976) 16 Cal.3d 442, 448 [where the defendant's contacts with California were insufficient to justify jurisdiction, it was not necessary to analyze the question of fairness and balancing interests].)
DISPOSITION
The order granting NYU's motion to quash summons for lack of jurisdiction is affirmed. NYU shall recover costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.