Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 04CC12501, David A. Thompson, Judge.
The Law Office of Stan Stern and Stan Stern for Plaintiffs and Appellants.
Law Offices of Kersten & Associates and William C. Kersten for Defendant and Respondent.
OPINION
IKOLA, J.
Plaintiffs Leslie C. Fields, Misty Mountain Ranch for Children with Cancer, and Wylvale Limited Partnership (collectively plaintiffs) appeal from the trial court’s order granting defendant OCRA (Isle of Man) LIMITED’s (OCRA) motion to quash service of summons pursuant to Code of Civil Procedure section 418.10. We affirm.
Unless noted, all further statutory references are to the Code of Civil Procedure.
FACTS
In June 2004, plaintiffs filed a lawsuit against attorney Kevin J. Mirecki as an individual and as a professional corporation (collectively Mirecki). Plaintiffs amended the complaint twice. The operative complaint, verified by Fields, alleged attorney negligence, breach of oral contract, fraud in the inducement, breach of fiduciary duty, and violation of statute. Plaintiffs alleged Fields “learned of Mirecki . . . through an advertisement” and hired him to: (1) set up limited partnerships and offshore corporations; and (2) transfer title to Fields’s real property into these entities to protect the property from claims by judgment creditors. According to the complaint, Mirecki set up two partnerships — the Misty Mountain Limited Partnership and the Wylvale Limited Partnership — but failed to transfer title to Fields’s property, damaging plaintiffs in excess of $1 million. The complaint did not mention OCRA.
In the fall of 2005, plaintiffs’ counsel examined the advertisement Fields alleged led him to contact Mirecki. The advertisement read as follows: “OFFSHORE COMPANIES” “Established in 1975 OCRA has 20 offices world wide and 750 ready-made companies available. [¶] For 100 page FREE colour brochure E-mail: financial@world-mail.com or contact: [¶] ISLE OF MAN: D MURPHY, CA Tel: +44 1624815544 Fax: +44 162816857 LONDON: RICHARD T COOK, BSc Tel: +44 1713551096 Fax: +44 171495017 HONG KONG: BART G DECKER, LLM Tel: +352 2622-172 Fax: +96225211190 USA-AICS Ltd. KEVIN MIRECKI, Attorney-at-Law Tel: +17148543344 Fax: +17148545967.” (Emphasis added.)
After viewing the advertisement, plaintiffs’ counsel believed OCRA and American & International Corporate Services Limited (AICS) “represented themselves . . . as affiliated entities and jointly solicited clients for Mirecki’s estate planning and asset protection services.” Plaintiffs’ counsel decided OCRA and AICS were somehow liable to plaintiffs and, in September 2005, plaintiffs asked the court to continue the trial date to enable them to serve OCRA and AICS. In the meantime, plaintiffs settled with Mirecki and dismissed him from the lawsuit.
On October 27, 2006, plaintiffs’ counsel learned OCRA had been served in May 2006, and again in September 2006. That same day, he called counsel for OCRA. OCRA’s attorney did not know OCRA had been served and requested until November 13, 2006 to file a motion to quash. Plaintiffs’ counsel granted the request. A few days later, plaintiffs moved to continue the trial date to give OCRA “sufficient time to challenge California jurisdiction and for the parties to prepare for trial.”
Because of some confusion about OCRA’s proper corporate name, plaintiffs served OCRA in May 2006 and another similarly named company in September 2006 “out of an abundance of caution.” There is no information in the record about why plaintiffs’ counsel did not learn OCRA was served until October 2006. Plaintiffs appear to contend the May 2006 service triggered the deadline for OCRA to move to quash.
On November 13, 2006, OCRA moved to quash the summons and complaint, contending it did not have sufficient contacts with California to justify the exercise of personal jurisdiction. In support of its motion, OCRA submitted the declaration of OCRA’s director, Stephen Porter. Porter averred that OCRA advertises and does business primarily in the British Isles and that OCRA “has no headquarters in the United States and does not travel or due [sic] business in the United States.” OCRA also offered a declaration submitted by plaintiffs’ counsel in support of plaintiffs’ September 2005 motion to continue the trial date. In that declaration, plaintiffs’ counsel averred, among other things, that OCRA was a “corporation headquartered in the Isle of Man, British Isles.”
Plaintiffs opposed the motion. They argued a California court could exercise personal jurisdiction over OCRA because: (1) OCRA’s advertisement led Fields to believe that OCRA had an office in California; and (2) Mirecki’s “thinly veiled corporate entity” — AICS — “served as OCRA’s designated local sales agent for its inventory of offshore companies.” Fields submitted a declaration in support of the opposition where he stated he saw the advertisement in an August 1998 issue of the London Financial Times (Financial Times) while he was traveling in Europe and that the advertisement “conveyed to [him] the understanding that OCRA had principal offices in the . . . USA.” Fields also stated that he called Mirecki at the number listed in the advertisement “for the purpose of setting up a local contact with OCRA in California.” Lastly Fields averred Mirecki set up a trust “managed by OCRA affiliates in the British Virgin Islands . . . and a corporation in the British Virgin Islands which was purchased from OCRA.”
Plaintiffs also attached excerpts from Mirecki’s deposition to their opposition. In these excerpts, Mirecki testified he was the director of AICS, a “corporate services company” that formed domestic and foreign corporations. According to Mirecki, “if AICS had a client and the client wanted a company overseas, then AICS would purchase that company, have it [the offshore corporation] formed through OCRA, and AICS would pay OCRA for the formation of that company.” The client paid AICS. Mirecki also stated that AICS communicated an unspecified number of times with OCRA regarding orders for companies and that OCRA sometimes sent documents regarding the offshore companies to AICS. Mirecki further testified that “at certain times” a staff member from OCRA came “here” to train AICS employees, but that OCRA never had an office in California or in the United States.
The court granted the motion to quash, concluding plaintiffs had not shown OCRA had purposefully availed itself of the benefits of doing business in California. The court also determined that exercising jurisdiction over OCRA would not comport with the concepts of “fair play and substantial justice.” Rejecting plaintiffs’ argument that the motion to quash was untimely, the court explained, “[T]he motion is timely. . . . The date that the plaintiffs themselves discovered that the service was effective [on October 27, 2006] was very close to the [date] that this motion was filed. [¶] But even if it’s untimely, I would allow this motion to be filed and heard at this time based upon the showing that’s been made, and [based on] my authority under . . . section 418.10(e).”
This jurisdictional tenet comes from the often cited case of International Shoe Co. v. State of Washington, Etc. (1945) 326 U.S. 310, 316, where the United States Supreme Court held due process requires a nonresident defendant to have “minimum contacts” with a state to establish personal jurisdiction “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”
We believe the court meant to refer not to section 418.10, subdivision (a), not section 418.10, subdivision (e). Section 418.10, subdivision (a) allows the court to extend a party’s time to move to quash “for good cause.” Section 418.10, subdivision (e) provides, “A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint.”
The court dismissed the action and plaintiffs timely appealed.
DISCUSSION
Standard of Review
“When a nonresident defendant challenges personal jurisdiction, the plaintiff must prove, by a preponderance of the evidence, the factual basis that would justify the exercise of jurisdiction.” (Dorel Industries, Inc. v. Superior Court (2005) 134 Cal.App.4th 1267, 1273 (Dorel); Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449 (Vons).) If the plaintiff meets this initial burden, the defendant has the burden of demonstrating “the exercise of jurisdiction would be unreasonable.” (Vons, supra, 14 Cal.4th at p. 449.)
“Thus, the process is essentially an evidentiary one and the applicable standard of appellate review is the familiar substantial evidence rule. Therefore, if there is conflicting evidence presented by the parties, we are called upon to determine whether the trial court’s decision is supported by substantial evidence [citations], and, in doing so, we resolve all conflicts in the relevant evidence ‘against the appellant and in support of the order’ [citation]. If there is no conflict in the relevant evidence, the question is one of law as to which we exercise our independent judgment.” (Paneno v. Centres For Academic Programmes Abroad LTD. (2004) 118 Cal.App.4th 1447 (Paneno).)
The Court Properly Granted OCRA’s Motion to Quash Because Plaintiffs Did Not Establish OCRA Purposefully Availed Itself of the Privilege of Doing Business in California
Pursuant to California’s long-arm statute, California courts may exercise jurisdiction on any basis not inconsistent with the California or the United States Constitution. (§ 410.10; Vons, supra, 14 Cal.4th at p. 444.) “The overarching general rule is that a court may assume jurisdiction over a nonresident defendant where the defendant’s ‘minimum contacts’ with the forum state are sufficient to make the maintenance of the action inoffensive to traditional concepts of fair play and substantial justice.” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 535 (Sonora Diamond).)
“The concept of minimum contacts embraces two types of jurisdiction —general and specific.” (Sonora Diamond, supra, 83 Cal.App.4th at p. 536; Vons, supra, 14 Cal.4th at p. 445.) If the nonresident defendant’s contacts with California are not sufficient to confer general jurisdiction, the defendant may still be subject to the specific jurisdiction of California on claims related to its activities in California. (Vons, supra, 14 Cal.4th at p. 446; Sonora Diamond, supra, 83 Cal.App.4th at p. 536; also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 3:225, p. 3-63.) Because plaintiffs do not contend general jurisdiction exists, we consider only whether plaintiffs have demonstrated a basis for specific jurisdiction. (See, e.g., Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269 (Pavlovich).)
“When determining whether specific jurisdiction exists, courts consider the “‘relationship among the defendant, the forum, and the litigation.’”” (Pavlovich, supra, 29 Cal.4th at p. 269.) A California court may exercise specific jurisdiction over an out-of-state defendant only if: “(1) the defendant has purposefully availed itself of forum benefits with respect to the matter in controversy; (2) the controversy is related to or arises out of the defendant’s contacts with the forum; and (3) the assertion of jurisdiction would comport with fair play and substantial justice.” (Sonora Diamond, supra, 83 Cal.App.4th at p. 536; see also Pavlovich, supra, 29 Cal.4th at p. 269.)
We first consider whether plaintiffs have met their burden of demonstrating OCRA purposefully availed itself of the privilege of doing business in California. (Pavlovich, supra, 29 Cal.4th at p. 273.) “‘The purposeful availment inquiry . . . focuses on the defendant’s intentionality. [Citation.] This prong is only satisfied when the defendant purposefully and voluntarily directs his [or her] activities toward the forum so that he [or she] should expect, by virtue of the benefit he [or she] receives, to be subject to the court’s jurisdiction based on’ his [or her] 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.”’” (Pavlovich, supra, 29 Cal.4th at p. 269.)
Plaintiffs argue OCRA has purposefully availed itself of the benefits of doing business in California “as a result of its advertising.” We disagree. The “advertising” on which plaintiffs rely to establish purposeful availment is a single newspaper advertisement from an August 1998 issue of the Financial Times, a London newspaper, which Fields concedes he saw while he was in Europe. Plaintiffs have not cited any cases — and we are not aware of any — where a court has exercised personal jurisdiction over a foreign defendant on the basis of a single newspaper advertisement. The differences between this case and Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1067 (Snowney), where the California Supreme Court concluded the defendant’s actions were sufficient to confer specific jurisdiction, are instructive. In Snowney, our high court held that a Nevada hotel’s extensive advertising aimed at California residents — through a Web site, billboards, newspapers, radio, direct mailings and television — constituted purposeful availment of the privilege of doing business in California. (Id. at pp. 1064-1065.) Here and in contrast to Snowney, there is no advertising campaign directed at California residents. There is only a single newspaper advertisement placed in an international newspaper and read in Europe. We are unable to conclude that a single advertisement placed in a foreign newspaper — and read outside of California — would be sufficient to confer personal jurisdiction over an international defendant.
In a footnote in their reply brief, plaintiffs cite Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 473 (Burger King) and liken OCRA to a magazine publisher in a defamation action. Their reliance on Burger King is misplaced. In that case, the United States Supreme Court considered whether a Florida court could exercise personal jurisdiction over a Michigan resident who allegedly breached his franchise agreement with the franchisor, a Florida corporation. (Id. at p. 464.) The Burger King court concluded jurisdiction over the franchisee was proper because the “franchise dispute grew directly out of ‘a contract which had a substantial connection’” with Florida and because the contract required all disputes to be governed by Florida law. (Id. at p. 479.) There is no contract here. And there is no choice of law provision.
Plaintiffs apparently urge us to overlook the factual differences between Burger King and this case by citing just one sentence from the Burger King opinion: “a publisher who distributed magazines in a distant State may fairly be held accountable in that forum for damages resulting there from an allegedly defamatory story.” (Burger King, supra, 471 U.S. 462 at p. 473.) The quotation, however, is taken out of context: it comes from a portion of the Burger King opinion where the court listed an example of purposeful availment — distributing magazines containing an allegedly defamatory story in the forum state — and cited two cases, Keeton v. Hustler Magazine, Inc. (1984) 465 U.S. 770, 774 (Keeton), and Calder v. Jones (1984) 465 U.S. 783, 790 (Calder). Both of these cases are inapposite. In Keeton, the United States Supreme Court held that Hustler Magazine’s “regular circulation” of magazines in New Hampshire — 10,000 to 15,000 copies monthly — “is sufficient to support an assertion of jurisdiction in a libel action based on the contents of the magazine.” (Keeton, at p. 773-774.) In Calder, the Supreme Court concluded National Enquirer, a Florida corporation, could be subject to a defamation lawsuit in California where 600,000 copies of the magazine were sold in California and where the libelous effects of the story were felt by a California resident in California. (Calder, at pp. 785, 789.) Here, there is no evidence in the record that any copies of the Financial Times were sold in California, nor is there any evidence that OCRA targeted California residents with its advertisement while knowing the advertisement would cause harm in California.
Both Keeton and Calder applied the “‘effects test’” to determine whether the defendant had purposefully availed itself of forum benefits. (Pavlovich, supra, 29 Cal.4th at p. 269.) In Pavlovich, our high court noted that courts apply the “effects test” in defamation and libel actions, and in the context of intentional torts. (Id. at p. 270.) Although plaintiffs do not urge us to apply the “effects test” here, we note that they would not fare well under that test because they have not shown that OCRA “expressly aimed [its allegedly tortious] conduct [at the] forum” state. (Id. at p. 271.)
Recognizing there is no evidence in the record to demonstrate OCRA purposefully and voluntarily directed the advertisement to California residents, plaintiffs urge us take judicial notice of the following fact pursuant to Evidence Code section 452, subdivision (h): “in August 1998, the Financial Times of London was distributed within the United States[,] including California.” Evidence Code section 452, subdivision (h) authorizes a court to take judicial notice of “[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.” This includes “‘facts which are accepted as established by experts and specialists in the natural, physical, and social sciences, if those facts are of such wide acceptance that to submit them to the jury would be to risk irrational findings.’” (People v. Ramos (1997) 15 Cal.4th 1133, 1167.) Because plaintiffs’ proffered fact does not come within the scope of Evidence Code section 452, subdivision (h), we deny plaintiffs’ request for judicial notice.
We deny plaintiffs’ request for an additional reason: “there is no showing [this fact] was before the trial court, through judicial notice or otherwise.” (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 125, fn. 3; Vons, supra, 14 Cal.4th at p. 444, fn. 3 [absent exceptional circumstances, “[r]eviewing courts generally do not take judicial notice of evidence not presented to the trial court”]; Cwynar v. City and County of San Francisco (2001) 90 Cal.App.4th 637, 644, fn. 1 [denying defendant’s request for judicial notice of information not presented to the trial court].)
Next, plaintiffs argue jurisdiction is proper because Mirecki acted as OCRA’s “local agent for sale of its inventory of offshore companies” in California. Plaintiffs cite no evidence to support this argument. While forum-related contacts by an agent may be imputed to the principal for purposes of establishing jurisdiction (F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 796) the existence of an agency relationship is a question of fact that must be proved in each case. (Magnecomp Corp. v. Athene Co. (1989) 209 Cal.App.3d 526, 536-537; CenterPoint Energy, Inc. v. Superior Court (2007) 157 Cal.App.4th 1101, 1118-1119.)
There is no evidence in the record that OCRA directed or controlled Mirecki’s activities, or even that it knew about Mirecki’s dealings with plaintiffs. As a result, plaintiffs have failed to establish the factual basis for the exercise of specific jurisdiction on an agency theory. (See Dorel, supra, 134 Cal.App.4th at pp. 1276-1277.)
Plaintiffs also argue OCRA’s “[o]ther business activities,” such as its “travel to Southern California to train AICS sales personnel” is sufficient to support the exercise of specific jurisdiction. The evidence on this issue —whether OCRA employees traveled to California — is conflicting. In his deposition, Mirecki testified that a staff member from OCRA came “here” on unspecified occasions to train employees of AICS. Mirecki did not clarify whether “here” referred to Southern California specifically, or to the United States generally. Porter, however, stated that OCRA did not travel to the United States. As noted above, where there is conflicting evidence, we must determine whether the court’s decision is supported by substantial evidence; in doing so, we resolve all conflicts in the evidence against plaintiffs and in support of the court’s order. (Paneno, supra, 118 Cal.App.4th at p. 1454.) Resolving all conflicts in support of the court’s order, we conclude Porter’s declaration denying travel to the United States was sufficient to support the court’s order.
Because plaintiffs have not established OCRA purposefully availed itself of the privilege of conducting business in California, we need not reach the second and third prongs of the test for specific jurisdiction: whether plaintiffs have established the controversy is related to, or arises out of, OCRA’s contacts with California and whether OCRA can demonstrate that asserting jurisdiction would be unreasonable. (Snowney, supra, 35 Cal.4th at p. 1067; Sibley v. Superior Court (1976) 16 Cal.3d 442, 448.)
Having Granted an Extension of Time for OCRA to File a Motion to Quash, Plaintiffs Cannot Complain the Motion was Untimely
Finally, plaintiffs argue the court should have denied the motion to quash because it was not filed within the limits set forth in section 418.10, which “governs the procedure for making a motion to quash service or dismiss or stay an action on the basis of lack of jurisdiction or inconvenient forum.” (Roy v. Superior Court of County of San Bernardino (2005) 127 Cal.App.4th 337, 341.) Section 418.10, subdivision (a) provides in pertinent part that “[a] defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her [or] to stay or dismiss the action on the ground of inconvenient forum.”
Plaintiffs argue the last day to move to quash was in June 2006, 30 days after OCRA was served on May 23, 2006. They urge us to overlook the fact that they extended the time for OCRA to move to quash until November 13, 2006 and to conclude the motion was untimely because OCRA did not obtain court approval to file the motion to quash beyond the time specified in section 418.10, subdivision (a).
We decline to do so in light of Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1295 (Olinick), where the Second District Court of Appeal considered, and rejected, a similar argument. There, plaintiff granted defendant a 15-day extension of time, until May 4, 2004, to respond to the complaint. Defense counsel wrote a letter to plaintiff’s counsel to confirm the extension. (Id. at p. 1295.) On May 4, defendant filed a motion to dismiss or stay the action pursuant to section 418.10 and the court issued a stay. (Id. at pp. 1293, 1295.) On appeal, plaintiff contended defendant’s motion was untimely and should have been denied. (Id. at p. 1295.)
The Olinick court disagreed. Noting that a motion made pursuant to section 418.10 “must be made within the time permitted to plead, i.e., 30 days after service of the complaint, unless extended by stipulation or court order,” the court held that the parties stipulated to extend the time for defendant to file its motion, and defendant’s motion to dismiss was timely because it was filed within the 15-day extension period. (Olinick, supra, 138 Cal.App.4th at p. 1295, italics added.) The same is true here. The time for OCRA to file a motion to quash was extended, by the parties’ stipulation, to November 13, 2006. OCRA filed its motion on November 13 and, as a result, its motion was timely.
Plaintiffs’ argument fails for an additional reason: the court made a finding that OCRA’s motion was timely and, in the alternative, that there was good cause to extend OCRA’s time to file the motion. “Determinations of good cause are generally matters within the trial court’s discretion, and are reversed only for an abuse of that discretion.” (Laraway v. Sutro & Co. (2002) 96 Cal.App.4th 266, 273.) Plaintiffs make no attempt to argue the court’s determination of good cause was an abuse of discretion.
DISPOSITION
The judgment of dismissal following the order granting defendant’s motion to quash is affirmed. Plaintiffs’ request for judicial notice is denied. OCRA is awarded its costs on appeal.
WE CONCUR: MOORE, ACTING P. J., FYBEL, J.