Opinion
A138840
07-31-2015
UTZ CLAASSEN, Plaintiff and Appellant, v. HANNES KUHN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG12615788)
A citizen of Germany was recruited by another citizen of Germany to run a German corporation, which corporation controlled two Delaware entities that were developing a solar energy project in California. After only 10 weeks on the job, the new executive resigned. He asserted he was thereafter subjected to a concerted campaign of scurrilous vilification that effectively ruined opportunities for employment at the extremely well-compensated level he would otherwise attain. He sued the German who recruited him for libel in California. The trial court concluded that the defendant German lacked sufficient contacts with California to support specific jurisdiction and granted his motion to quash service of summons. The plaintiff German appeals. We agree with the trial court that this dispute about the aftermath of a German employment relationship is not a proper subject for California jurisdiction. We thus affirm.
BACKGROUND
The General Setting
Plaintiff and appellant Utz Claassen is a citizen of the Federal Republic of Germany. So is defendant and respondent Hannes Kuhn. As will be developed in detail below, Kuhn approached Claassen to head Solar Millenium AG (SMAG), a German corporation whose business is developing solar plants for the production of electricity. Claassen accepted, but then quickly resigned, giving as his justification that Kuhn had not accurately reflected the financial situation of SMAG. There followed a number of articles and SMAG press releases about Claassen's departure, which Claassen believed were ruinously defamatory.
" 'AG' is the standard abbreviation for 'Aktiengesellschaft,' which is a German stock company, comparable to a shareholder-owned company in the United States." (Robinson ex rel. Hunsinger v. Daimlerchrysler AG (N.D. Cal. 2008) 2008 WL 728877 *1.) Although the abbreviation is also used for Austrian and Swiss corporations (see, e.g., In re Ski Train Fire in Kaprun, Austria on Nov. 11 (S.D.N.Y. 2004) 342 F.Supp.2d 207, 209; U.S. Aviation Underwriters v. Pilatus Business Aircraft (D. Colo. 2005) 358 F.Supp.2d 1021, 1022), its greatest usage is for German corporations. In the absence of any contrary indication, it has been assumed that corporations bearing this designation are German.
Claassen filed suit in Alameda Superior Court, naming as defendants a number of entities and individuals, including Kuhn. The complaint was amended, to ultimately allege eight causes of action, two allegedly based on California law, six on German law. The claims were styled by Claassen as follows: (1) "Slander Per Se under California Law"; (2) "Libel under California Law"; (3) "Intentional Defamation Under Section 823(2) of the German Civil Code in Conjunction with Section 187 of the German Criminal Code"; (4) "Defamation Under Section 823(2) of the German Civil Code in Conjunction with Section 186 of the German Criminal Code"; (5) "Insult Under Section 823(2) of the German Civil Code in Conjunction with Section 185 of the German Criminal Code"; (6) "Liability Under Section 823(1) of the German Civil Code"; (7) "Endangering Credit Under Section 824 of the German Civil Code"; and (8) "Intentional Damage Contrary to Public Policy Under Section 826 of the German Civil Code."
As also discussed in detail below, after being served in London with the amended complaint, Kuhn made a special appearance to contest jurisdiction. The trial court granted Kuhn's motion to quash service, which Claassen appealed.
The State of the Record and the Standards
Governing Our Review
Preliminarily, a few words must be addressed to the very limited record on this appeal, and how it relates to the rules for our review.
"Motions are usually made and determined on affidavits alone. [Citations.] A verified pleading is itself an affidavit and may be considered as such. [Citations.] Thus, a verified complaint may be considered . . . as a counteraffidavit on a motion to quash service of process . . . ." (Atkins, Kroll & Co. v. Broadway Lbr. Co. (1963) 222 Cal.App.2d 646, 653-654; see 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 220, p. 828.)
The operative pleading here is Claassen's 31-page first amended complaint. The only complete copy of it in the clerk's transcript is the one accompanying the proof that service of summons was effected on Kuhn in the United Kingdom. That amended complaint is not verified, and thus has no evidentiary value in satisfying Claassen's burden of proving jurisdiction. (Epic Communications, Inc. v. Richwave Technology, Inc. (2009) 179 Cal.App.4th 314, 334 ["The complaint is no substitute for evidence in opposing a motion to quash"]; Thomson v. Anderson (2003) 113 Cal.App.4th 258, 266; Archdiocese of Milwaukee v. Superior Court (2003) 112 Cal.App.4th 423, 434.) So, Claassen cannot rely on allegations in his amended complaint to create a conflict with evidence in the form of the declarations submitted in connection with Kuhn's motion. (See Joslin v. Marin Municipal Water Dist. (1967) 67 Cal.2d 132, 147-148; 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 230, pp. 672-673.) That said, there is one factual detail in the amended complaint we shall treat as an admission by Claassen: that he is a citizen of the Federal Republic of Germany.
As will be seen, the trial court properly sustained objections by Kuhn to additional materials offered by Claassen in connection with the motion to quash. For a variety of reasons, both Claassen and Kuhn have in their briefs referred to material that either was not before the trial court or is not in the record on appeal. Because the trial court is entitled to have the propriety of its ruling evaluated on the basis of the evidence, argument, and information known to the court at the time of its ruling (California Farm Bureau Federation v. State Water Resources Control Bd. (2011) 51 Cal.4th 421, 442; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal § 334, p. 385), these references will be disregarded. (Connecticut Indemnity Co. v. Superior Court (2000) 23 Cal.4th 807, 813, fn. 2; Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 405, fn. 14.)
In light of this principle, we deny the two requests by Claassen that we take judicial notice of various matters and events occurring after the trial court granted the motion to quash.
Accordingly, with the exception of the single factual detail taken from the amended complaint, the only actual sources of evidence we consider are Kuhn's declaration and those parts of Claassen's declaration to which the trial court did not sustain objections.
" '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." ' [Citations.] Where, as here, [there is] ' "no conflict in the evidence . . . the question of jurisdiction is purely one of law and the reviewing court engages in an independent review of the record." ' [Citation.]" (Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062 (Snowney).) "The plaintiff must do more than merely allege jurisdictional facts; the plaintiff must provide affidavits and other authenticated documents demonstrating competent evidence of jurisdictional facts." (BBA Aviation PLC v. Superior Court (2010) 190 Cal.App.4th 421, 428-429.) Declarations with "vague assertions of ultimate fact rather than specific evidentiary facts are not sufficient." (Paneno v. Centres for Academic Programmes Abroad Ltd. (2004) 118 Cal.App.4th 1447, 1454.) Assertions based on information and belief command no credibility. (Judd v. Superior Court (1976) 60 Cal.App.3d 38, 43; Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 212.) And "[s]o far as [the trial court] has passed on the . . . credibility of witnesses, its implied findings are conclusive." (Khan v. Superior Court (1988) 204 Cal.App.3d 1168, 1171, fn. 1.)
The following narrative conforms to these principles, our summary of the allegations of the causes of action in Claassen's first amended complaint done for the sole purpose of outlining the general nature of the dispute that Claassen wants to have determined in a California courtroom.
The Start and End of Claassen's Employment—And Its Aftermath
Kuhn is a citizen of the Federal Republic of Germany, who has been domiciled in the United Kingdom since 2007. He is a co-founder and board member of SMAG, a German corporation whose business is developing solar plants for the production of electricity. SMAG owns or controls 100 percent of Solar Millenium, Inc. (SMI), and indirectly controls a majority interest in Solar Trust of America, LLC (Solar Trust). SMI and Solar Trust were organized under Delaware law, and each had its principal place of business in Alameda County. Kuhn owns a minority of shares of SMAG. He has never had a "direct ownership interest" in either SMI or Solar Trust, although he was on the Solar Trust Board of Directors from 2009 to 2011.
The past tense is employed here because one month prior to filing of the amended complaint both SMI and Solar Trust had filed voluntary petitions for Chapter 11 bankruptcy, which are being administered jointly by the Delaware Bankruptcy Court. Although both of these entities were named as defendants, Claassen stated in the complaint that he "does not intend to continue this proceeding against [them] in violation of the current Bankruptcy Code Section 362 stay as to those Defendants."
Claassen implicitly made a similar, if slightly different, concession as to SMAG at the time of the motion to quash. Attachments to the amended complaint recite that "Service on Solar Millenium AG, a foreign defendant, has not been completed," and that on June 15, 2012, the Delaware Bankruptcy Court entered "a final order recognizing Solar Millenium AG as a Chapter 15 debtor" in the SMI/Solar Trust joint bankruptcy, apparently as a result of which "a bankruptcy stay became applicable to Solar Millenium AG prior to completion of service."
"Chapter 15 governs the recognition of foreign [insolvency] proceedings, which are defined as proceedings in which 'the assets and affairs of the debtor are subject to control or supervision by a foreign court.' " (In re Barnet (2d Cir. 2013) 737 F.3d 238, 247.) "[I]f that foreign proceeding 'is pending in the country where the debtor has the center of its main interests,' it is recognized as a 'foreign main proceeding.' [Citations.] With the entry of an order recognizing a foreign main proceeding, the foreign representative of the proceeding automatically receives relief . . . , including the automatic stay created by § 362 . . . ." (Jaffé v. Samsung Electronics Co., Ltd. (4th Cir. 2013) 737 F.3d 14, 24.) "Chapter 15 thus authorizes an 'ancillary' proceeding in a United States bankruptcy court that is largely designed to complement and assist a foreign insolvency proceeding by, among other things, 'bring[ing] people and property beyond the foreign main proceeding's jurisdiction into the foreign main proceeding through the exercise of the United States' jurisdiction.' " (Id. at pp. 2425.)
It may therefore be inferred that SMAG, as a German corporation, is under the jurisdiction of German court concerning its insolvency, which has been recognized by the Delaware Bankruptcy Court. Without objection from Claassen, Kuhn stated in his moving papers: "[A]s Plaintiff acknowledges, this action can currently proceed only as against Mr. Kuhn." Accordingly, it has been assumed that all three institutional defendants are under the protection of the Bankruptcy Code.
As noted, Claassen filed a request for judicial notice which attempts to show some activity in the bankruptcy or insolvency proceedings. As also noted, the request is improper, and we deny it.
Claassen is also a German citizen. After completing his education in Germany and the United Kingdom, he served in a number of high-level management positions, culminating as chief executive officer of Sartorius AG from 1997 to 2003, and then of EnBW Energie Baden-Wurttemberg AG, an electric public utility, from 2003 to 2007. When he left that job in 2007, he became a consultant for the Cerberus Group, apparently an American "private equity institution."
For some reason, Claassen chose not to state his nationality in his declaration. But he does allege in his amended complaint that he "is a citizen of the Federal Republic of Germany." We treat this allegation as a binding judicial admission. (See Setliff v. E. I. Du Pont de Nemours & Co. (1995) 32 Cal.App.4th 1525, 1534; 1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 98, p. 922.) Unlike Kuhn, Claassen does not state where he is domiciled.
According to Claassen, SMI and Solar Trust planned a number of "projects" in California, including construction of a solar plant in Blythe, and were negotiating for a grant from the Department of Energy to assist in financing the facility. Apparently while Claassen was still working for Cerberus, he was considering an offer to become "Chief Executive Officer of a large electronics and video solutions group with its American headquarters in California," at which time he was personally recruited by Kuhn to join SMAG. Claassen accepted. According to Claassen, the decisive factor in his deciding to join SMAG was "a business plan, which included detailed financial projections for the Solar Millenium Group based largely on projects in the United States, and California in particular. This business plan and my discussions with Kuhn addressed the nature of SMAG's business interests, the robustness and quality of the group's projects and solar technology, and the prospects for projects located in the United States, and in particular California."
Claassen alleged that he "took over as Chairman of the SMAG Board of Directors on January 1, 2010." Then, as he would later declare, "[s]hortly after joining SMAG, I came to realize that the business plan Kuhn gave to me prior to joining SMAG contained significant inaccuracies, incorrectness and . . . did not accurately reflect the financial planning realities of the business or the strategy of the Solar Millenium Group." "[F]ailures relating to the Blythe Project ultimately contributed to the insolvency of SMAG, and shortly thereafter, the insolvency of Solar Trust and [SMI]." (See fn. 3, ante.) "Prior to the insolvency of SMAG, I chose to resign on March 15, 2010."
What happened next is crucial to Claassen's appeal. According to his declaration, following his resignation "defamatory statements" about the reasons for his departure "were published in articles in both English and German," and "also appeared in SMAG's press releases that were published on SMAG's website in English and German," and all of which "were available and accessible in California." "Since this defamatory campaign began, I have been unable to secure employment or full-time professional activity," and "my reputation with Cerberus in its New York headquarters has effectively been destroyed."
In his amended complaint, Claassen alleged that the "libelous statements, at least some of which were made in English, were available on the Internet," "were read or heard by persons in California, which was to be expected given Defendants' extensive and highly publicized energy operations within the State." Other allegedly defamatory statements were made "orally." The amended complaint specified "a press release issued the day of Claassen's resignation" by SMAG, which was "quoted and discussed in a widely distributed March 16, 2010 article written by the financial news agency dpa-AFX" that was in turn "published, among other places, on the Sueddeutsche Zeitung and Finanznachrichten websites." Claassen further alleged that the press release "indicates, falsely, that Claassen abandoned his position on the Board of Directors without explanation, an act which no serious corporate executive would undertake," thus "suggesting that he lacked qualities specifically required of persons in his profession."
The amended complaint went on to cite several articles: a March 17, 2010 article in the Handelsblatt, subsequently repeated, with other supposedly defamatory comments, "in the general assembly of SMAG on May 18, 2011," again "suggesting unambiguously that he [Claassen] lacked qualities specifically required of persons in his profession"; another article published in the Handelsblatt, on July 26, 2010, which included "several statements from Kuhn that were quoted or referenced" in "paint[ing] . . . an unflattering portrait" of Claassen "as someone who exaggerated his connections in order to land his job at SMAG" "feigned . . . industriousness"; an article published in "Focus magazine . . . online in short form on February 6, 2011, and then as a longer print article on February 7, 2011"; and an article in the March 2011 issue of Capital magazine which had statements "that Claassen 'constructed' the reasons for his termination." The amended complaint also referred to another press release "in both German and English" issued by SMAG on March 24, 2011 that was "further propagated by many news outlets." Finally, Claassen alleged that all of "[t]he articles and publications cited above are available online, and many could be found—often in English translation . . . through a simple search engine query seeking information on Claassen."
Parenthetically, Claassen alleged that many of the allegedly defamatory statements were made by an individual who, like Kuhn, is described in the amended complaint as "a co-founder of SMAG and a former member of the SMAG Board of Directors." There is no indication that, apart from Kuhn, Claassen attempted to name or serve any other alleged utterer or publisher of the alleged defamatory statements.
Again, we emphasize that the existence and content of these allegedly defamatory utterances could be ignored because they appear only as allegations in Claassen's unverified pleading. However, they are recited here solely for informational context. In support of his opposition to the motion to quash, Claassen submitted a declaration by one of his attorneys purporting to authenticate the press release issued by SMAG on March 15, 2010, plus attached internet articles and subsequent SMAG press releases, but none of the articles from Sueddeutsche Zeitung, Finanznachrichten, or Handelsblatt are cited in the amended complaint. The trial court sustained Kuhn's hearsay and relevance objections to the attachments. Claassen contends we should overturn that ruling as to eight of those documents, i.e., the press release and seven of the articles, as an abuse of the trial court's discretion. We will not do so, as none of these materials quotes Kuhn, identifies him as a source, or even names him. Thus, Kuhn's relevance objection appears sound.
Claassen alleged his damages "are at least $155 million" and "may very well be as high as $267 million."
The Proceedings in the Trial Court
Following service on him in the United Kingdom, Kuhn filed a motion to quash. The essence of his position was that "This is in every respect a German case" because it "is about allegedly defamatory statements made entirely (1) by Germans (2) about a German (3) in Germany and (4), with one exception, in German. It has no place in a California Court. Indeed, a California Court has no power to hear this case—at least as against the moving Defendant, Hannes Kuhn . . . because Mr. Kuhn has nothing approaching the minimum contacts with California necessary . . . to establish jurisdiction over him." Alternatively, Kuhn requested that the action be either dismissed or stayed on the ground of forum non conveniens.
At various points in his brief Kuhn states that the language of all but one of the allegedly defamatory statements was German, not English. Given the scanty state of the record on appeal, the validity of Kuhn's characterization cannot be verified, and thus cannot be accepted for purposes of this appeal.
Kuhn filed an extensive declaration in support of his motion, which declaration demonstrated the following: He is a German citizen who since 2007 has been domiciled in the United Kingdom, where he pays taxes. "My family, offices, telephone listings, and bank accounts are all in Germany and the United Kingdom." Neither Kuhn, his spouse, nor his children have ever been domiciled in California. Kuhn has never "owned, leased, possessed, or maintained" any real or personal property, office, residence, or place of business in California. He has never paid California taxes, never had a California telephone listing, and never had "any bank or savings and loan accounts" in the state. And aside from his attorneys in this litigation, Kuhn "never had any agents, representatives, or employees in the state of California."
Over the past 10 years, Kuhn made four business trips to California, spending a total of nine days in the state. He provided details of the trips: "In 2009, I traveled twice to California for two days. The first was to attend meetings regarding a possible joint venture between SM USA [an apparent reference to SMI] and Ferrostaal, Inc. The joint venture was later formed as Solar Trust. The second visit was to attend a party to celebrate an agreement between SM USA and Southern California Electric. [¶] In 2010, I traveled to California for 2 days to attend a board meeting of Solar Trust. [¶] In 2011, I traveled to the state of California for 3 days at the invitation of Solar Trust to attend a ground-breaking party in Blythe[, California]. I remained in California for 3 days with my whole family (my wife and three children) before returning to the United Kingdom."
Kuhn concluded his declaration with these statements: "None of the allegedly defamatory statements listed in the Complaint were made in California. [¶] To my knowledge, Mr. Claassen never traveled to the state of California during his engagement with Solar Millenium AG. [¶] Not one of the individuals who could speak to the veracity of the alleged defamatory statements is located in the state of California. Rather, all individuals who could speak to the veracity of the alleged defamatory statements are located in Germany. [¶] To my knowledge, not one person who could speak to matters alleged in the First Amended Complaint resides in California. [¶] All documents and other physical evidence relevant to this matter are located in Germany."
Claassen argued in his opposition that California had jurisdiction because Kuhn's control of Solar Trust evidenced his purposeful availment of the benefits of conducting business in California, and Claassen's defamation causes of action were related to Kuhn's contacts with California: "The defamatory campaign orchestrated by Kuhn . . . directly relates to Kuhn's role as a director . . . of both Solar Trust and SMAG—he chose to tarnish Claassen's reputation rather than disclose the true problems of the companies." "Should any question remain" on these points, Claassen submitted "the court should order a continuance to permit discovery into the jurisdictional facts."
Following Kuhn's reply, the court heard lengthy arguments on the motion, at the conclusion of which it ruled as follows:
"THE COURT: All right. My better judgment is that I probably should give you an opportunity to have the deposition, but I'm not going to do that. And I'm going to let Mr. Johnson [defendant's attorney] pen this decision on appeal.
"I'm going to grant the motion to quash because the plaintiff who is not a citizen of California pursuing a person who is not a citizen of California whose contacts in California are absolutely minimal and not related in any way to the defamation. The tort occurred outside of California. The tort—I don't see any real indication that there's something provable that it had an impact in California.
"The tort itself, the defamation with one exception where it was German translated into English has all been in German and I don't see where the State of California has any interest in adjudicating this decision.
"If that weren't my decision, in the alternative, evaluating this situation is one where forum non conveniens might be an issue. It's quite clear to me that California is not a convenient forum. That all the major players are in Europe. They all speak German. Probably the German court is the most convenient forum for all the people involved. The number of people in California that could possibly be witnesses to something relevant are slim to none.
"And that being the case, had it not been that I don't think that there's special jurisdiction at all, I would be granting a motion on forum of non conveniens grounds."
Thereafter, the trial court signed an order that, after ruling on the parties' evidentiary objections, concluded in relevant part as follows:
"[T]his Court finds there is no constitutionally sufficient basis for the State of California to exercise jurisdiction over Defendant Kuhn. Plaintiff does not contend that this Court has general jurisdiction over Defendant Kuhn. With regard to specific jurisdiction, Defendant Kuhn's contacts with California are not related in any way to the causes of action asserted and do not meet the minimum contacts necessary for such jurisdiction. Moreover, neither Plaintiff nor Defendant Kuhn is a citizen of California, and there is no real indication that the alleged tort had any impact in California. The State of California thus has no interest in adjudicating this decision.
"Had the Court determined that it had specific jurisdiction, it would have granted Defendant Kuhn's alternative Motion to Quash on the grounds of forum non conveniens. California is not a convenient forum in this case. All important people involved in this case are in Europe and speak German. The number of people in California that could possibly be witnesses to something relevant to this case are few, if any."
This appeal followed. (Code Civ. Proc., § 904.1, subd. (a)(3).)
DISCUSSION
General Principles of Jurisdiction
" 'California courts may exercise personal jurisdiction on any basis consistent with the Constitution of California and the United States. (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.]
" 'The concept of minimum contacts . . . 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." ' [Citations.] To do so, the 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.' [Citations.]
"Under the minimum contacts test, '[p]ersonal jurisdiction may be either general or specific.' [Citation.] Because plaintiff does not claim general jurisdiction, we only consider whether specific jurisdiction exists here.
" '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' " [citations]; and (3) " 'the assertion of personal jurisdiction would comport with "fair play and substantial justice" ' " [citations].' [Citation.]' " (Snowney, supra, 35 Cal.4th 1054, 1061-1062.)
In sum, to prevail Claassen must demonstrate all three of these requirements. As we now show, he demonstrates none of them.
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.]" (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269 (Pavlovich).) Elaborating on Pavlovich, the Supreme Court later said "Thus, purposeful availment occurs where a nonresident defendant ' "purposefully direct[s]" [its] activities at residents of the forum' [citation], ' "purposefully derive[s] benefit" from' its activities in the forum [citation], 'create[s] a "substantial connection" with the forum' [citation], ' "deliberately" has engaged in significant activities within' the forum [citation], or 'has created "continuing obligations" between [itself] and residents of the forum' [citation]. By limiting the scope of a forum's jurisdiction in this manner, 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. . . .' [Citation.] 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 its connection with the state." ' [Citations.]" (Snowney, supra, 35 Cal.4th 1054, 1062-1063.)
Were Claassen attempting to show purposeful availment by SMI and Solar Trust (and thus by SMAG), the issue would be whether they were subject to general jurisdiction. (See, e.g., Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445 (Vons); Daimler AG v. Bauman (2014) ___ U.S. ___, ___ [134 S.Ct. 746, 751] [state has general jurisdiction "when the corporation's affiliations with the State in which suit is brought are so constant and pervasive 'as to render [it] essentially at home in the forum State' "]; Judicial Council com., 14A West's Ann. Code Civ. Proc. (2004 ed.) foll. § 410.10, p. 379 [general jurisdiction over foreign corporation proper if business done in state is continuous and substantial], 387-389.)
But Claassen is not seeking to impose liability on these entities, but is after only the individual Kuhn, the nonresident director of a foreign corporation, thus triggering other rules.
"[J]urisdiction over an employee does not automatically follow from jurisdiction over the corporation which employs him[.]" (Keeton v. Hustler Magazine, Inc. (1984) 465 U.S. 770, 781, fn. 13; see Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 904 ["jurisdiction over a partnership does not necessarily permit a court to assume jurisdiction over the individual partners"]; Colt Studio, Inc. v. Badpuppy Enterprise (C.D. Cal. 1999) 75 F.Supp.2d 1104, 1111 ["The mere fact that a corporation is subject to local jurisdiction does not necessarily mean its nonresident officers, directors, agents, and employees are suable locally as well."].) This is in keeping with the principle that jurisdiction cannot be vicarious or derivative, but must be established with respect to each prospective nonresident defendant. (See, e.g., Walden v. Fiore (2014) ___ U.S. ___, ___ [134 S.Ct. 1115, 1122] [the relationship between the defendant and the forum State "must arise out of contacts that the 'defendant himself' creates with the forum State"] (Walden); Sibley v. Superior Court (1976) 16 Cal.3d 442, 448 ["the purpose of other parties cannot be imputed to petitioner for the purpose of assuming personal jurisdiction over him"]; In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 110 ["The jurisdictional facts shown must pertain to each separate nonresident defendant"].)
Both the United States Supreme Court and the California Supreme Court have held that "the relationship must arise out of contacts that the 'defendant himself' creates with the forum State." "[I]t is the defendant's conduct that must form the necessary connection with the forum State that is the basis for jurisdiction over him." That is what Walden held. So too, Asahi Metal Industry Co. v. Superior Court (1987) 480 U.S. 102, 109 (Asahi): " 'Jurisdiction is proper . . . where the contacts proximately result from actions by the defendant himself that create a "substantial connection" with the forum State." ' And Snowney, supra, 35 Cal.4th 1054, 1062: " '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" . . . .' " (Italics added.)
On the other hand, if the "[nonresident] person's control over the corporation is such that the corporation is acting as his agent in doing the acts giving rise to the suit, then he can be reached through the long-arm statute even though he personally had no direct contact with the forum state. The courts speak in terms of 'piercing the corporate veil' or the 'alter ego' doctrine in discussing the susceptibility of individuals to long-arm jurisdiction." (1 Casad & Richman, Jurisdiction in Civil Actions (3d ed. 1998) § 4-3[4], p. 494.) Thus, "for [the] purpose of jurisdiction . . . , corporate veils may be pierced . . . in appropriate cases." (Vons, supra, 14 Cal.4th 434, 459, fn. 7.) Moreover, agents who commit intentional torts in their official capacities may be subject to jurisdiction. (See Seagate Technology v. A.J. Kogyo Co. (1990) 219 Cal.App.3d 696, 701-702; 1 Casad & Richman, Jurisdiction in Civil Actions, supra, § 4-3[3], p. 491 ["Where the claim against the individual rests on a tort committed by him while acting on behalf of the corporation, . . . [t]he individual, as well as the corporation, can be liable for his torts."].)
In the trial court Claassen tried in effect to use the principle to demonstrate that Kuhn was the puppeteer of SMAG—and, by extension, of SMI and Solar Trust. Thus, Claassen stated in his declaration: "After my resignation, based upon information and belief, Kuhn began to orchestrate a defamatory campaign against me. Further, to my knowledge, Kuhn, as Speaker of SMAG's Supervisory Board, initiated and/or authorized public statements made by other individuals at SMAG." "To my knowledge, Kuhn knew that the defamatory statements would injure and cause harm to me in California based upon my understanding that Kuhn was aware of my long-term professional interests in California and alternate opportunities within the United States, and California in particular." And, Claassen added, "Kuhn prided himself on playing an active role in SMAG's business dealings and interests in California. To my knowledge, Kuhn has been publicly referred to as the 'Drahtzieher' or 'wire-puller,' meaning that he was the individual 'pulling the strings' at the Solar Millenium Group."
The allegations in Claassen's amended complaint are even more colorful: Kuhn "directed SMAG's actions, including its actions in the State of California" and "the activities . . . of Solar Trust in the State of California." "[F]or all intents and purposes, Kuhn, described in some press reports as the company's 'puppet master,' was SMAG at the time he made the statements, and he was Solar Trust at the same time. . . . According to a Welt Online article from August 24, 2011, 'Although [Kuhn] is only a simple member of the supervisory board, he is seen by those familiar with the company even today as the actual head of Solar Millenium.' Indeed, Kuhn was so powerful within SMAG that when Claassen sought to discuss important aspects of the US activities with the SMAG Supervisory Board, the Supervisory Board members referred Claassen to Kuhn, who was in charge of SMAG's and effectively also in charge of Solar Trust's activities in the US. . . . For all of these reasons, Kuhn's defamatory statements are properly imputed to SMAG and vice versa." The amended complaint also alleged that SMI "is SMAG's alter ego within the United States," and further that Kuhn "was the main driver behind the defamation campaign against Claassen." We reiterate that these allegations have no evidentiary value and are mentioned solely for context.
But Kuhn objected to all of these statements as speculative, and lacking foundation and personal knowledge. The trial court sustained those objections, and Claassen does not now challenge those rulings. The consequence is that Claassen presented no evidence depicting Kuhn as the behind-the-scene master manipulator of SMAG, SMI, or Solar Trust. Apart from his role in the efforts to bring Claassen onto SMAG's board, Kuhn has no individual significance. There is no evidence distinctly tying him to the allegedly defamatory statements, as either instigator or actual author. (See fn. 5, ante.) He is simply one of SMAG's directors.
The court also sustained Kuhn's objections to these additional statements by Claassen: "Kuhn had significant business contacts with California," and "Kuhn, and to my knowledge, other individuals at SMAG, knew that I primarily chose to work at SMAG so that I could participate in these projects in the United States, with the anticipation that a significant part of my time would be spent in California. Kuhn was aware that I had a strong professional, and personal focus, on the United States, and California in particular." Again, Claassen does not seek to have these rulings overturned on appeal.
In sum, concerning Kuhn as an individual, none of the tests for purposeful availment is met. Claassen is not a resident of California, and this is not a situation where a nonresident defendant has intentionally directed activities at a particular California resident. Kuhn has certainly not maintained continuing obligations with residents of California. And Kuhn's declaration makes clear that the few days he spent in the state are not indicative of enduring professional ties. His brief visits to the state—one of which occurred before Claassen began serving as SMAG's CEO—are not sufficient. The visits do not qualify as deliberately engaging in significant activities within the state, or constitute a substantial connection with it. (See, e.g., International Shoe Co. v. Washington (1945) 326 U.S. 310, 317 ["the casual presence of the corporate agent or even his conduct of single or isolated items of activities in a state in the corporation's behalf are not enough"]; Kulko v. Superior Court (1978) 436 U.S. 84, 92-93 [New York defendant's two trips totaling four days in California amounted to "glancing presence" insufficient for jurisdiction].)
Citing Hall v. LaRonde (1997) 56 Cal.App.4th 1342, 1344 for the proposition that the mere " 'use of electronic mail and the telephone by a [nonresident] party . . . may establish sufficient minimum contacts with California to support personal jurisdiction,' " Claassen argues that "Kuhn had professional contacts with individuals and entities in California and communicated through email and telephone with these California contacts." This argument, Claassen claims, is evidenced by "Emails obtained by Claassen after the hearing [that] show Kuhn's significant involvement in the daily operations of Solar Trust." But we denied Claassen's request to take judicial notice of those e-mails. The only other source cited by Claassen is this paragraph in his declaration: "Kuhn travelled to California, and had professional contacts with individuals and entities within California, using, to my knowledge, various forms of communication. He also had professional contact with people and entities in the United States that were located outside California. At least some of these contacts related to the business interests of Solar Trust and SMAG, in California." These sentences depict only an involved corporate officer: one who has "professional contacts with individuals and entities" and is capable of "us[ing] . . . various forms of communication" to maintain those contacts. As for Hall, it is distinguishable because the communications there evidenced an ongoing commercial relationship between the New York defendant and the California plaintiff. (See Hall v. LaRonde, supra, at p. 1347.)
In situations dealing with intentional torts, such as here, courts have developed a substitute for the standard purposeful availment analysis in what has come to be known as the "effects" test. "Under the 'effects' test for determining purposeful availment, a defendant might be subject to jurisdiction in the forum state if the defendant engaged in intentional conduct 'expressly aimed at or targeting the forum state,' and the defendant knew the intentional conduct would cause harm in the forum." (Archdiocese of Milwaukee v. Superior Court, supra, 112 Cal.App.4th 423, 436, quoting Pavlovich, supra, 29 Cal.4th 262, 271.) But "[b]oth federal and state courts have held that mere foreseeability—that the defendant knew or should have known that its intentional acts could cause harm in this state—is not sufficient to establish jurisdiction under the effects test. Instead, the plaintiff must point to contacts demonstrating that the defendant expressly aimed or targeted its tortious conduct at our state." (In re Automobile Antitrust Cases I & II, supra, 135 Cal.App.4th 100, 122.)
Believing that he has demonstrated Kuhn's purposeful availment under the standard approach, Claassen disclaims reliance on the effects test, though he appears willing to invoke it as a fall-back position. It does not avail him.
The effects test appears to have been given its first extended discussion in Calder v. Jones (1983) 465 U.S. 783, a defamation case. There, an article implying that California actress Shirley Jones "drank so heavily as to prevent her from fulfilling her professional obligations" (id. at p. 788, fn. 9) prompted Jones to sue the writer of the article, the editor who approved it, and their employer, the National Enquirer, a newspaper published in Florida (where the article was written) which had a large circulation in California. The United States Supreme Court concluded that California could assert jurisdiction, for these reasons: "The allegedly libelous story concerned the California activities of a California resident. It impugned the professionalism of an entertainer whose television career was centered in California. The article was drawn from California sources, and the brunt of the harm, in terms both of respondent's emotional distress and the injury to her professional reputation, was suffered in California. In sum, California is the focal point both of the story and of the harm suffered. Jurisdiction over petitioners is therefore proper in California based on the 'effects' of their Florida conduct in California." (Id. at pp. 788-789, fn. omitted.) And, the Supreme Court continued: "[P]etitioners are not charged with mere untargeted negligence. Rather, their intentional, and allegedly tortious, actions were expressly aimed at California. Petitioner South wrote and petitioner Calder edited an article that they knew would have a potentially devastating impact upon respondent. And they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation. Under the circumstances, petitioners must 'reasonably anticipate being haled into court there' to answer for the truth of the statements made in their article." (Id. at pp. 789-790.) The setting here is hardly similar.
California had accepted the effects test as early as 1969, and its use was established by the mid-1970s. (See, e.g., Judicial Council com. 14A West's Ann. Code Civ. Proc., supra, foll. § 410.10pp. 372 ["All the recognized bases of judicial jurisdiction are included" such as "causing an effect in a state by an act or omission elsewhere"], 381-383, 389; Sibley v. Superior Court, supra, 16 Cal.3d 442, 446; Spokane Eye Clinic, Inc. v. Superior Court (1976) 63 Cal.App.3d 548, 554; Martinez v. Perlite Institute, Inc. (1975) 46 Cal.App.3d 393, 403; Quattrone v. Superior Court (1975) 44 Cal.App.3d 296, 303-304.)
To begin with, we are not dealing with a California resident plaintiff. (Cf. Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) ___ U.S. ___, ___, fn. 5 [131 S.Ct. 2846, 2857] ["When a defendant's act outside the forum causes injury in the forum, . . . a plaintiff's residence in the forum may strengthen the case for the exercise of specific jurisdiction."].) Likewise significant is that in a defamation case " '[i]t is reasonable to expect the bulk of the harm from defamation of an individual to be felt at his domicile.' " (Jewish Defense Organization, Inc. v. Superior Court (1999) 72 Cal.App.4th 1045, 1058.) This appears to be Germany (see fn. 4), and the brunt of the harm allegedly suffered by Claassen from statements impugning his professionalism would naturally be expected to occur there, where the majority of his professional career has apparently been spent. And although it was Claassen's burden to produce " 'facts justifying . . . jurisdiction ' " (Snowney, supra, 35 Cal.4th 1054, 1062), Kuhn correctly points out that "Claassen has not identified a single shred of harm suffered in California as a result of the alleged statements. He has not pointed to a job or opportunity lost. He has not identified any specific loss of reputation in California or, indeed, specifically identified anyone in California who has heard or read the statements. . . . He does not identify a position that he sought in California, much less one that he did not secure . . . . [H]e does not so much as identify a single reaction by anyone in California to the alleged statements." Unlike Calder, we are not dealing with "a potentially devastating impact" upon a California resident.
The allegedly defamatory statements were not based on California sources or made by California residents, but originated in Germany, made either by German nationals or in the name of a German corporation. None of the websites on which the allegedly defamatory statements was posted was traced to California. Mere Internet availability, especially of a simple posting, does not qualify as intentionally targeting California. (Pavlovich, supra, 29 Cal.4th 262, 274 [" 'situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions [i.e.,] [a] passive Web site that does little more than make information available . . . is not grounds for the exercise [of] personal jurisdiction' "]; accord, Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal.App.4th 1254, 1260-1261; Jewish Defense Organization, Inc. v. Superior Court, supra, 72 Cal.App.4th 1045, 1060.)
But even if it were foreseeable that the posted statements would be read by Californians—something Claassen has not shown—it would not be enough. "The knowledge that harm will likely be suffered in the forum state, 'when unaccompanied by other contacts,' is therefore 'too unfocused to justify personal jurisdiction.' [Citation.] Thus, we . . . require additional evidence of express aiming or intentional targeting." (Pavlovich, supra, 29 Cal.4th 262, 272-273.) "[T]he Calder effects test requires intentional conduct expressly aimed at or targeting the forum state in addition to the defendant's knowledge that his intentional conduct would cause harm in the forum." (Id. at p. 271.) But Kuhn is only indirectly tied to the allegedly defamatory statements, so the inference that he intentionally and expressly aimed them at California, with the targeted goal of damaging Claassen's reputation, is unreasonable. The trial court refused to accept it. So do we.
The allegedly defamatory statements do not concern the California actions of a California resident, but the actions of a German citizen who, while acting as an officer of a German corporation and a Delaware LLC, spent no more than nine days in California. There is no basis for assuming that California was the target audience. If the object was to smear Claassen's professional reputation, Germany was the far more obvious target. Whether measured against the standard approach or the effects test, Claassen has not shown that Kuhn purposefully availed himself of California benefits. Nor that his lawsuit relates to California.
Relatedness to California
"We now turn to the second prong of the test for specific jurisdiction (the relatedness requirement), and determine whether the controversy is related to or arises out of defendant['s] contacts with California. We . . . [have] [¶] . . . adopted a 'substantial connection' test and 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. [¶] In adopting this test, we observed that 'for the purpose of establishing jurisdiction the intensity of forum contacts and the connection of the claim to those contacts are inversely related.' [Citation.] '[T]he more wide ranging the defendant's forum contacts, the more readily is shown a connection between the forum contacts and the claim.' [Citation.] Thus, '[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.' [Citation.] Moreover, the 'forum contacts need not be directed at the plaintiff in order to warrant the exercise of specific jurisdiction.' [Citation.] Indeed, ' " '[o]nly when the operative facts of the controversy are not related to the defendant's contact with the state can it be said that the cause of action does not arise from that [contact].' " ' [Citations.]" (Snowney, supra, 35 Cal.4th 1054, 1067-1068, fns. omitted.) Claassen does not satisfy this test.
Much of the discussion concerning purposeful availment is equally applicable here. That discussion demonstrated that Kuhn the individual has had minimal contact with California, and cannot be charged with causing specially damaging effects suffered by Claassen in California. The "effects" analysis showed that any harm to Claassen's professional reputation has even less causal connection to California. And the decision of SMAG, SMI, and Solar Trust to do business in California has no significance, as that business was thus unrelated to Claassen's post-employment defamation causes of action against Kuhn. (See Rush v. Savchuk (1980) 444 U.S. 320, 328-329.)
Recall that actual evidence of the allegedly defamatory statements is scant. Taking their description by Claassen at face value, the statements do not concern the California actions of a California resident, but the actions of a German citizen who, while acting as an officer of a German corporation, spent no more than a few days in California. The allegedly defamatory statements are supposed to have impugned the professionalism of a person whose career appears to have been largely spent in Germany. The allegedly defamatory statements were not based on California sources or made by California residents, but originated in Germany, made by German nationals or in the name of a German corporation. Kuhn could not anticipate being "haled into Court" in California for utterances made in Germany about an employment relationship with another German who, so far as the record shows, has never been to California.
Conspicuous by omission in Claassen's declaration is any mention of having spent time in California.
Fairness
The final factor to consider is " 'whether the assertion of specific jurisdiction is fair.' [Citation.] In making this determination, the 'court "must consider the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief. It must also weigh in its determination 'the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies.' " ' " (Snowney, supra, 35 Cal.4th 1054, 1070.)
Kuhn is not a neat fit for this template because he was not merely the director of a corporation of another state, but the director of a corporation of another country. In Asahi, supra, 480 U.S. 102, a case arising out of California involving a citizen of Japan, the United States Supreme Court began by noting that state courts are "to take into consideration the interests of the 'several States,' in addition to the forum State, in the efficient judicial resolution of the dispute and the advancement of substantive policies." But, the court went on, "[i]n the present case, this advice calls for a court to consider the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction by the California court. The procedural and substantive interests of other nations in a state court's assertion of jurisdiction over an alien defendant will differ from case to case. In every case, however, those interests, as well as the Federal Government's interest in its foreign relations policies, will be best served by a careful inquiry into the reasonableness of the assertion of jurisdiction in the particular case, and an unwillingness to find the serious burdens on an alien defendant outweighed by minimal interests on the part of the plaintiff or the forum State. 'Great care and reserve should be exercised when extending our notions of personal jurisdiction into the international field.' [Citation.]" (Asahi, supra, 480 U.S. 102, 115.)
"The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders." (Asahi, supra, 480 U.S. 102, 114.) "Because the plaintiff is not a California resident, California's legitimate interests in the dispute have considerably diminished." (Ibid.) No fundamental California public policy is implicated in providing a forum for resolving a dispute between German executives of a German corporation concerning the alleged professional reputation of a person who, for all the record shows, has never set foot in the state. Claassen was hired in Germany, and resigned in Germany. (See Kulko v. Superior Court, supra, 436 U.S. 84, 97 ["the controversy between the parties arises from a separation that occurred in the State of New York . . . the instant action involves an agreement that was entered into with virtually no connection with the forum State [i.e., California]"].)
Making a California court enforce intercontinental discovery by a common law jurisdiction poses distinct risks of disturbing national sensibilities. And, if all this was not complicated enough, there is also the Delaware Bankruptcy Court and the German insolvency court to consider. (See fn. 3, ante.) California has every interest in avoiding such a confrontation.
Moreover, if the case were tried in California, six of Claassen's causes of action are based upon German civil and criminal law, subjects about which a California court would require considerable education—a German court none. The German court might also be more familiar with the European corporate culture that Claassen alleges would now regard him as professionally compromised. It seems reasonable to assume that it would be more convenient for a German citizen to attend judicial proceedings in Germany than in California. The same is true for the German witnesses. And certainly there is nothing in the record suggesting that Germany is unavailable as a forum to try Claassen's claims. Jurisdictionally, and jurisprudentially, California is hardly the only game in town.
Kuhn's declaration has already been quoted to the effect that none "of the individuals who could speak to the veracity of the alleged defamatory statements" is in California because they and "All documents and other physical evidence . . . are located in Germany." This statement was disputed by Claassen in his opposition papers, and at the hearing, but his argument was not backed by evidence. Judging from language in the final order—"All important people involved in this case are in Europe and speak German. The number of people in California that could possibly be witnesses to something relevant to this case are few, if any"—the trial court found Kuhn's declaration largely credible. That determination must be respected on this appeal. (See Khan v. Superior Court, supra, 204 Cal.App.3d 1168, 1170, fn. 1.)
In short, we reach the same conclusions as the United State Supreme Court in 1987 and 2014: "Due process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the 'random, fortuitous, or attenuated' contacts he makes by interacting with other persons affiliated with the State." (Walden, supra, ___ U.S. ___, ___ [134 S.Ct. 1115, 1123].) "Considering the international context, the heavy burden on the alien defendant, and the slight interests of the plaintiff and the forum State, the exercise of personal jurisdiction by a California court . . . in this instance would be unreasonable and unfair." (Asahi, supra, 480 U.S. 102, 116.) On our largely independent review of the evidence, we conclude that Claassen failed to carry " 'the initial burden of demonstrating facts justifying the exercise of jurisdiction.' " (Snowney, supra, 35 Cal.4th 1054, 1062.)
Denial of Jurisdictional Discovery Was Not an Abuse of Discretion
Claassen also contends Kuhn's motion to quash should have been held in abeyance while Claassen conducted "jurisdictional discovery," which he equates with deposing Kuhn and obtaining documents. The issue was argued at length below, and after hearing the trial court denied the request, beginning with the observation that "My better judgment is that I probably should give you an opportunity to have the deposition, but I'm not going to do that."
As Claassen concedes the decision whether to grant a continuance for purpose of jurisdictional discovery is committed to the trial court's discretion. (City of King City v. Community Bank of Central California (2005) 131 Cal.App.4th 913, 930; In re Automobile Antitrust Cases I & II, supra, 135 Cal.App.4th 100, 127.) One definition of abuse of discretion is that the decision must be arbitrary, whimsical, or capricious. (See generally, People v. Giminez (1975) 14 Cal.3d 68, 72.) No definition includes against "my better judgment." We find no abuse.
Claassen bore the burden of presenting the trial court with evidence establishing that "discovery [was] likely to lead to the production of evidence establishing jurisdiction." (In re Automobile Antitrust Cases, supra, 135 Cal.App.4th at p. 127.) He produced no such evidence, and the trial court appropriately exercised its discretion in denying discovery.
Again, Claassen now seeks to remedy his failure to adduce evidence below through a request for judicial notice to this court. This request is flawed on a number of levels, and even aside from that, the request does more to harm than to help Claassen's bid for jurisdictional discovery. In any event, we denied the request for judicial notice, because, among other things, it asks the court to consider uncertified translations and hearsay evidence. --------
An additional ground for concluding there was no abuse is the fact that Claassen's original complaint was filed on February 3, 2012. While a copy of that pleading was not designated for inclusion in the record on appeal, the amended complaint filed on May 22, 2012 is replete with allegations bearing on the issue of California jurisdiction. Given that, it is reasonable to assume that similar allegations were in the original complaint, even if Kuhn was not yet a defendant. Kuhn filed his motion to quash on November 19, 2012. This means that Claassen, with clear reason to believe that jurisdiction would be a contested issue, conducted little or no discovery for more than nine months. Such a lack of diligence is a recognized basis for denying a continuance. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257; Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1396.)
A third basis for finding no abuse is the trial court's decision in its alternative ruling, that: "[H]ad the court determined that it had specific jurisdiction, it would have granted defendant Kuhn's alternative motion to quash on the ground of forum non conveniens." A fundamental aspect of a forum non conveniens claim is that there be a suitable alternative forum. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.) Here, the trial court was advised, by Claassen's own counsel yet, that Germany did provide a suitable forum, at least for some of the claims. In counsel's words: "The statute of limitations—it is my understanding that the statute of limitations has run in Germany with respect to many of the statements." Indeed, counsel gave the trial court broader assurance in the brief opposing Kuhn's motion to quash, writing that "[w]hile Germany may be a suitable alternate forum, the public and private considerations weigh in favor of California retaining jurisdiction." The trial court could properly rely on these representations—fundamentally, representations of law—in assessing the applicability of the doctrine of forum non conveniens. (See Evid. Code, § 310, subd. (b) ["Determination . . . of the law of a foreign nation . . . is a question of law . . . .") The significance of this, of course, is that even if the discovery had been allowed, and even if it showed that Kuhn was subject to jurisdiction, the case would still not be proper here because of forum non conveniens. Put conversely, denial of discovery could not have been prejudicial.
DISPOSITION
The order is affirmed.
/s/_________
Richman, Acting P.J.
We concur:
/s/_________
Stewart, J.
/s/_________
Miller, J.