Opinion
A155713
06-18-2020
RICHARD TEED, Plaintiff and Appellant, v. APRIL PATTERSON et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. CGC-18-565768)
Plaintiff Richard Teed, a California resident, filed suit against defendants April Patterson, D.D.S., a Florida resident, and her dental business, Dr. Patty's Dental Boutique, (jointly, defendants) arising from allegedly negligent dental procedures performed by Patterson in Florida. Defendants filed a motion to quash service of summons on the grounds California lacked jurisdiction. The trial court granted the motion, and we affirm.
On September 11, 2019, Teed filed an unopposed request for judicial notice of (1) an online article indicating the viewership for Good Morning America, and (2) various posts made by Patterson on her dental business's Facebook page. We deny the request as to the article because " '[t]he truth of the content of the article[ ] is not a proper matter for judicial notice, and the circumstance that the article[ was] published is irrelevant to our discussion.' " (Voris v. Lampert (2019) 7 Cal.5th 1141, 1147, fn. 5.) We grant the request as to the social media posts, but only as to the fact that Patterson made such posts. The truth of the content of those posts is not a proper matter for judicial notice. (Ibid.; see also Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194 ["The contents of the Web sites and blogs are 'plainly subject to interpretation and for that reason not subject to judicial notice.' "].)
I. BACKGROUND
Patterson is the CEO of April N. Patterson, D.D.S., P.A., doing business as Dr. Patty's Dental Boutique. Patterson resides in Florida and has never lived in California, owned property in California, voted in California, or held a driver's license from California. Patterson's dental business is organized under the laws of Florida, and its principal place of business is in Florida.
In 2014, Teed met Patterson at a four-day Tony Robbins event in California. During that event, Patterson discussed her dental practice with Teed. The record does not indicate the extent of this discussion. Patterson also allegedly "good naturedly made fun" of Teed's teeth and told him she could give him "a younger and more confident look." The record also does not reflect whether Patterson made any statements about Teed's teeth beyond these two comments.
The event was offered to members of the Tony Robbins Platinum Partnership, of which both Patterson and Teed were a part. Tony Robbins's website advertises this membership as an "opportunity to network with and learn from Tony and master teachers from around the world . . . ."
Both Teed and Patterson acknowledge they became close friends during the Tony Robbins event. After the event ended, the two regularly exchanged text messages. The content of those text messages is unknown, and the record does not indicate whether those communications related to personal discussions or Patterson's business.
In 2016, Teed scheduled a "smile makeover" at Patterson's dental practice. Teed then travelled to Florida to obtain his "smile makeover." Following his procedure, he experienced significant amounts of pain. Patterson called a prescription for Teed into a pharmacy in California. Teed again travelled to Florida for Patterson to perform corrective work on his teeth. However, that procedure failed to resolve the issue, and Patterson referred Teed to an endodontist in California.
Teed filed a complaint against defendants, alleging causes of action for breach of contract and professional negligence. Teed asserted jurisdiction was proper because Patterson "advertises and solicits business in the State of California."
In response, defendants filed a motion to quash service of summons, alleging Teed failed to establish sufficient contacts with California for imposing personal jurisdiction. Teed opposed the motion, again asserting Patterson advertises in California. Specifically, Teed noted the website for Patterson's dental practice contains (1) various references to media appearances by Patterson, including on Good Morning America, MSN, FOX, DECO, and CBS; and (2) articles, interviews, and promotions for Patterson and her dental business, including an article in an internationally published magazine. Patterson also maintains a Facebook page for her dental practice, which contains posts about her business.
The court granted defendants' motion to quash. The court concluded Teed "fail[ed] to show that defendants have sufficient minimum contacts to warrant the imposition of specific jurisdiction over them in California." The court further noted neither the alleged contacts between Patterson and Teed nor Patterson's national advertising were sufficient to create jurisdiction. Teed timely appealed.
II. DISCUSSION
A. Personal Jurisdiction
California's long-arm statute, Code of Civil Procedure section 410.10 (section 410.10), permits courts to "exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." The statute "manifests an intent to exercise the broadest possible jurisdiction, limited only by constitutional considerations." (Sibley v. Superior Court (1976) 16 Cal.3d 442, 445.) "The exercise of jurisdiction over a nonresident defendant comports with [the state and federal] 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.' " ' " (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268 (Pavlovich).)
Pursuant to section 410.10, California courts may exercise general or specific personal jurisdiction over nonresidents. (Pavlovich, supra, 29 Cal.4th at pp. 268-269.) "A nonresident defendant may be subject to the general jurisdiction of the forum if his or her contacts in the forum state are 'substantial . . . continuous and systematic.' [Citations.] In such a case, 'it is not necessary that the specific cause of action alleged be connected with the defendant's business relationship to the forum.' [Citations.] Such a defendant's contacts with the forum are so wide-ranging that they take the place of physical presence in the forum as a basis for jurisdiction." (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445-446 (Vons).)
"If the nonresident defendant does not have substantial and systematic contacts in the forum sufficient to establish general jurisdiction, he or she still may be subject to the specific jurisdiction of the forum, if the defendant has purposefully availed himself or herself of forum benefits [citation], and the 'controversy is related to or "arises out of" a defendant's contacts with the forum.' " (Vons, supra, 14 Cal.4th at p. 446; Halyard Health, Inc. v. Kimberly-Clark Corp. (2019) 43 Cal.App.5th 1062, 1070.) A controversy relates to or arises out of such contacts if there is a substantial connection between the forum contacts and the plaintiff's claim. (Id. at p. 452.)
"When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. [Citation.] 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. [Citation.] When there is conflicting evidence, the trial court's factual determinations are not disturbed on appeal if supported by substantial evidence. [Citation.] When no conflict in the evidence exists, however, the question of jurisdiction is purely one of law and the reviewing court engages in an independent review of the record." (Vons, supra, 14 Cal.4th at p. 449.)
Here, there is no conflict in the evidence. Accordingly, we review the matter de novo.
1. General Jurisdiction
Teed does not contend California has general jurisdiction over Patterson. Nor do we find any evidence to support jurisdiction on such grounds. The evidence shows Patterson does not reside in California and has not otherwise established contacts with the state. Moreover, Patterson's dental business has no offices, assets, or employees in California. Nor does Patterson pay taxes in California. Thus, California lacks general jurisdiction over Patterson. (See Vons, supra, 14 Cal.4th at pp. 445-446.)
2. Specific Jurisdiction
"When determining whether specific jurisdiction exists, courts consider the ' "relationship among the defendant, the forum, and the litigation." ' [Citation.] 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' " ' " (Pavlovich, supra, 29 Cal.4th at p. 269; see also Walden v. Fiore (2014) 571 U.S. 277, 284-285.)
We conclude Patterson did not deliberately direct her activities toward California. Mentioning her business to a fellow attendee at a Tony Robbins event, which eventually led to Teed obtaining a "smile makeover" from Patterson, is the epitome of a " 'random,' 'fortuitous,' or attenuated' " contact that does not give rise to personal jurisdiction. (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 486.)
While Teed contends there were extensive discussions with Patterson leading to the "smile makeover," the record does not reflect such evidence. Teed's declaration merely states the two communicated. It is silent as to the content of those communications. Nor does the record reflect Patterson continued to promote her business to Teed. Teed may have unilaterally decided to improve his teeth and reached out to Patterson because of their friendship. Once again, the record is silent as to who initiated scheduling the "smile makeover."
The postprocedure contacts between Teed and Patterson also do not add sufficient facts to give rise to jurisdiction. In Prince v. Urban (1996) 49 Cal.App.4th 1056 (Prince), the California plaintiff was referred to the defendant Illinois doctor for treatment of her headaches. (Id. at p. 1058.) After returning to California, the plaintiff had numerous phone consultations with the defendant, for which she paid. (Ibid.) The defendant also mailed medications directly to the plaintiff and arranged to have the plaintiff's prescriptions filled in California. (Ibid.) The appellate court affirmed a dismissal for lack of personal jurisdiction because "the doctor-patient relationship was not the result of any 'systematic or continuing effort . . . to provide services' to be 'felt' in California." (Id. at p. 1064.) The court further held that "[f]ollow-up consultation ancillary to the examination and treatment made by the out-of-state doctor, telephone calls about the status of an out-of-state patient, or arrangements for a patient to continue with medication prescribed by that doctor do not reach the minimum contacts necessary for the satisfaction of due process." (Id. at p. 1061.) Other states have similarly found follow-up care does not generate sufficient contacts to give rise to personal jurisdiction. (See, e.g., Vance v. Molina (Okla. 2001) 28 P.3d 570, 572-574 (Vance) [Texas doctor's discussions with plaintiff's Oklahoma physicians following gastric segmentation surgeries were "ancillary" and "incidental" to the surgeries the doctor performed in Texas and did not give rise to personal jurisdiction in Oklahoma]; Brocail v. Anderson (Tx.Ct.App. 2004) 132 S.W.3d 552, 558, 564 (Brocail) [doctor in Michigan not subject to personal jurisdiction in Texas despite referring plaintiff to a physical therapy provider in Texas, faxing prescriptions, reviewing progress, and sending additional diagnoses and prescriptions]; Ghanem v. Kay (D.D.C. 1984) 624 F.Supp. 23, 24-25 (Ghanem) [doctor not subject to personal jurisdiction in the District of Columbia despite being licensed there and advertising his number in the District of Columbia Yellow Pages; plaintiff consulted with doctor due to friend's referral and not solicitations].)
Conversely, in Jones v. Williams (N.D.Cal. 2009) 660 F.Supp.2d 1145 (Jones), the plaintiff, while residing in Hawaii and California, received teletherapy and counseling from the New Mexico defendants. (Id. at p. 1148.) One defendant travelled to California a few times, at the plaintiff's request, to conduct therapy sessions. (Id. at p. 1150.) Based on this evidence, the court found in relevant part the defendants intentionally directed their therapy and counseling services at California "over a continuous and sustained period of time." (Ibid.) The court thus denied the defendants' motion to dismiss for lack of personal jurisdiction in California. (Id. at pp. 1151-1152.)
The Fifth Circuit also found personal jurisdiction appropriate in Bullion v. Gillespie (5th Cir. 1990) 895 F.2d 213 (Bullion). In that case, the Texas plaintiff was referred to Gillespie, a California urologist, by her local urologist, who was familiar with Gillespie based on a nationally distributed book she had authored. (Id. at p. 214.) The plaintiff read the book and then travelled to California for a consultation with Gillespie. (Id. at pp. 214-215.) As part of her treatment, and after plaintiff returned to Texas, she received experimental drugs in the mail and regularly communicated with Gillespie, and her progress was tracked by her local urologist who then reported to Gillespie. (Id. at p. 215.) Because the plaintiff alleged the drugs were the proximate cause of her injury, the court noted "that Gillespie shipped the experimental drugs directly to Bullion in Texas and that the alleged tort took place in whole or in part in Texas." (Id. at p. 217.) Accordingly, the court found the exercise of personal jurisdiction to be appropriate. (Ibid.)
We find the current matter to be more analogous to Prince, Vance, Brocail, and Ghanem, than to Jones and Bullion. In both Jones and Bullion, the claims arose from services provided to the plaintiffs in their home states—in Jones the defendants provided therapy and counselling to the plaintiff while she was in California; in Bullion, the defendant managed the plaintiff's care by mailing experimental drugs, which caused the alleged injury, to the plaintiff while in Texas. We have no analogous connection in this case. The services giving rise to Teed's claim—his smile makeover and the correction procedure—occurred in Florida, and the follow-up contact with California was limited to some communications regarding Teed's ongoing pain, calling in a prescription, and referring Teed to an endodontist in California. In fact, Patterson's contacts with California appear to be less than those in Prince, which declined to extend personal jurisdiction over the Illinois doctor. Nothing in the record indicates Teed participated in paid consultations after he returned to California, and the medication prescribed by Patterson did not give rise to his alleged injuries. Accordingly, Patterson's contacts with California are insufficient to give rise to personal jurisdiction.
The record does not reflect how many or how extensive the communications were on this issue.
Teed attempts to distinguish Prince by arguing Patterson engaged in national advertising—i.e., one appearance on Good Morning America, which she then promoted on her website and Facebook page. He claims such advertising "reaches nationwide consumers" and distinguishes her business from the "local" practice in Prince.
Teed cites no evidence to support his claim that a single appearance on Good Morning America has such an effect. Nor does he cite any authority demonstrating that such an appearance and the related social media posts meaningfully distinguish the present case from Prince, Vance, Brocail, and Ghanem.
It is useful to compare the facts presented here to those in Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054. In that case, the defendants maintained an interactive website that quoted room rates and allowed visitors to make reservations at their hotels. (Id. at pp. 1063-1064.) The website specifically targeted California residents by "touting the proximity of their hotels to California and providing driving directions from California to their hotels." (Id. at p. 1064.) The California Supreme Court thus ruled the defendants had "purposefully derived a benefit from their Internet activities in California." (Id. at pp. 1064-1065.) Here, we are presented with no such facts. Patterson's website provides passive information to individuals. While it may highlight national press Patterson has received, none of it is specifically directed at California. (Accord, Federated Rural Elec. Ins. Corp. v. Kootenai Elec. Coop. (10th Cir. 1994) 17 F.3d 1302, 1305 ["evidence of mere placement of advertisements in nationally distributed papers or journals does not rise to the level of purposeful contact with a forum required by the Constitution in order to exercise personal jurisdiction over the advertiser"].)
Teed has failed to identify "any 'systematic or continuing effort' " by Patterson " 'to provide services' to be 'felt' in California." (Prince, supra, 49 Cal.App.4th at p. 1064.) Teed happened to meet and become friends with Patterson at a Tony Robbins event—a chance encounter that falls within the scope of a " 'random,' 'fortuitous,' or 'attenuated' " contact. (Burger King Corp. v. Rudzewicz, supra, 471 U.S. at p. 486.) The record does not reflect Teed decided to have a "smile makeover" based on any advertising or solicitation by Patterson. He only references one comment made by Patterson about his teeth two years prior to the makeover at the Tony Robbins event. One could equally conclude, based on the record, Teed unilaterally decided to have work on his teeth and reached out to Patterson based on their preexisting friendship. This lack of evidence weighs against Teed as he carries "the initial burden of demonstrating facts justifying the exercise of jurisdiction." (Vons, supra, 14 Cal.4th at p. 449.) Accordingly, the trial court properly granted Patterson's motion to quash. B. Sufficiency of the Trial Court's Order
Because Teed has not carried his burden of establishing Patterson purposefully availed herself of California's benefits, we need not address the remaining requirements for specific jurisdiction.
Teed also contends the trial court erred by failing to analyze all three prongs of the test for specific jurisdiction. We disagree.
As acknowledged by Teed, all three prongs must be met for a court to exercise specific jurisdiction over a nonresident defendant. (Strasner v. Touchstone Wireless Repair & Logistics LP (2016) 5 Cal.App.5th 215, 226 ["If the plaintiff is unable to demonstrate sufficient minimum contacts with the forum to justify jurisdiction, a court is not required to engage in the process of weighing the defendant's inconvenience of litigating in the forum against the plaintiff's interests in suing locally and California's interest in assuming jurisdiction."].) Here, the trial court concluded Teed failed to demonstrate sufficient minimum contacts with California to justify jurisdiction. Accordingly, the court was under no obligation to address the remaining prong.
Even assuming the trial court had an obligation to discuss the test for jurisdiction with more specification, we find such error harmless. Under the "traditional harmless error analysis for nonconstitutional error, . . . prejudice is not presumed." (Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d 1383, 1397.) Rather, plaintiffs must show a miscarriage of justice, which should be declared only when the court determines it is reasonably probable a result more favorable to the appealing party would have been reached absent the error. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) As addressed in part II.A., ante, Teed had the initial burden of demonstrating facts justifying the exercise of jurisdiction, and he failed to meet this burden. We thus find no prejudicial error.
III. DISPOSITION
The order granting defendants' motion to quash service of summons is affirmed. Defendants may recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Margulies, J. We concur: /s/_________
Humes, P. J. /s/_________
Sanchez, J.