Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court County of Santa No. 1188541. Barbara Denise de Bellefeuille, Judge.
Roben L. Unander, for Appellant.
John H, Parke, James M. Sweeney; Allen & Kimbell, for Respondent.
YEGAN, J.
Steven Giles, dba The Chocolate Guy, appeals from an order dismissing his complaint for contract damages against Custom Creative Plastics (Custom), a Florida business. (Code Civ. Proc., § 581, subd. (h).) The trial court quashed service of the summons and complaint for lack of personal jurisdiction. (§ 418.10, subd. (a)(1).) We affirm.
All statutory references are to the Code of Civil Procedure.
Facts and Procedural History
Custom, a small Florida business with one employee, manufactures acrylic displays and stands in Miami. More than 90 percent of Custom's sales are to Florida residents. Sales to California are sporadic and make up less than one percent of Custom's total business. Custom has no employees, property, sales force, or vendors in California and has never solicited business in California or advertised in California.
Custom's owner, Seudial Paul Ramsingh, declared that Custom "has never advertised to California or in any other way solicited business directly form California, or from any other [s]tate outside of Florida. The only paid advertising Custom Creative Plastics has is in the yellow pages in the Miami area. We do not engage in any type of direct mailing or emailing or phone marketing or any other type of advertising or solicitation outside of Florida at all.":
Custom does, however, maintain an Internet web site through which customers can view products and submit orders. The web site lists Custom's phone number and address.
In March 2005, appellant phoned Custom and asked if it could fabricate 100 custom chocolate fondue fountain units ("surrounds"). Appellant negotiated the price ($290 a unit), shipping, and delivery terms over the phone and by e-mail. On May 25, 2005, appellant flew to Florida to inspect and approve the first batch of fabricated surrounds, approved packaging for shipping, and hired a shipping company to pick up the surrounds. After paying Custom $14,515, appellant discovered that some of the surrounds had cracks.
Appellant filed suit in a Santa Barbara state court. The trial court, in granting the motion to quash service, found that appellant "contacted the defendant, who was in Florida, and defendant's work was done there. While plaintiff has presented evidence of a website accessible to California residents that quotes prices and is interactive, he has presented scant evidence of the interactivity of the exchange of information that occurs on the site. Plaintiff contacted defendant in Florida to inspect the surrounds and other related matters. Defendant did not advertise in California or intentionally solicit California customers."
Minimum Contacts
California's long-arm statute provides that California courts may exercise personal jurisdiction over nonresident defendants "on any basis not inconsistent with the Constitutions of this state and of the United States." (§ 418.10.) Where a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff must show by competent evidence that jurisdiction is proper. (Jewish Defense Organization, Inc. v. Superior Court (1999) 72 Cal.App.4th 1045, 1054-1055.)
"Personal jurisdiction may be either general or specific. 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.]" (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445.) If general jurisdictional is not established, the defendant "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 contact with the forum,' [Citations.]" (Id., at p. 446.)
Appellant asserts that Custom purposefully availed itself of the privilege of doing business in California by maintaining a web site through which California residents could order products. State and federal courts have used a sliding scale analysis to determine whether personal jurisdiction over a nonresident defendant may be based solely on the defendant's Internet activities. (See Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1063 (Snowney), discussing "sliding scale analysis" described in Zippo Mfg. Co. v. Zippo Dot Com, Inc. (W.D.Pa. 1997) 952 F.Supp. 1119, 1124].)
" 'At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. [Citation.] At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. [Citation.] The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.' [Citation.]" (Snowney, supra, 35 Cal.4th at p. 1063.)
Web Site Interactivity
Appellant argues that Custom's website is "interactive" and permits California customers to exchange information and place orders. But appellant presented no evidence that any California resident purchased a product through the web site. Appellant did obtain Custom's phone number from the web site but negotiated the contract by phone and e-mail.
Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal.App.4th 1254 is analogous. There a California resident purchased a used BMW from a Miami car dealer and negotiated the purchase by phone and correspondence. Although the BMW was advertised on the dealer's website, the Court of Appeal held that the purposeful availment prong was not satisfied to establish minimum contacts for personal jurisdiction. (Id., at p. 1262.) "[D]efendant's Web site merely advertised its vehicles and (presumably) included a credit application. There is no evidence that files were exchanged via the Web site or that any business was actually conducted via the site. As plaintiff explained in his declaration, he 'wrote to and phoned' defendant to get more information and to negotiate the purchase. Nor is there evidence that anything about the Web site specifically targeted California residents. Thus, defendant's maintenance of the Web site alone is insufficient to establish personal jurisdiction." (Id., at p. 1261.)
In Snowney, supra, 35 Cal.4th 1054, our Supreme Court held that web site interactivity requires something more than listing a business address and phone number. There a Nevada hotel company targeted California residents through the Internet and the use of California billboards, newspapers, and radio and television. (Id., at p. 1060.) The company sent direct mailings to California residents. The court held that the hotel's "Web site, by any standard, establishes purposeful availment. By touting the proximity of their hotels to California and providing driving directions from California to their hotels, defendants' Web site specifically targeted residents of California. [Citation.] Defendants also concede that many of their patrons come from California and that some of these patrons undoubtedly made reservations using their Web site. As such, defendants have purposefully derived a benefit from their Internet activities in California [citation], and have established a substantial connection with California through their Web site [citation]. In doing so, defendants have 'purposefully availed [themselves] of the privilege of conducting business in' California 'via the Internet.' [Citation.]" (Id., at pp. 1064-1065.)
Unlike Snowney, there is no evidence that Custom advertised in California, sent direct mailings to California residents, or used its web site to target businesses or residents in California. Citing Hall v. LaRonde (1997) 56 Cal.App.4th 1342, appellant argues that electronic communications, such as electronic mail and phone calls by a defendant in another state, may establish sufficient minimum contacts. But in Hall, the plaintiff "reached out to New York in a search of business" to sell his computer software application and defendant, LaRonde, "reached back to California." (Id., at p. 1347.) We held that "LaRonde's contacts with California consisted of more than simply to purchase a software module from Hall. LaRonde worked with Hall to integrate the module into LaRonde's software package. Even after the initial adaptation was finished, LaRonde continued to work with Hall to modify the module for new and existing software. In addition, the contract contemplated that LaRonde would make continuing royalty payments to Hall. Thus, LaRonde created a ' "continuing obligation[[]' " between himself and a resident of California. [Citation.]" (Id., at p. 1347.)
It is uncontroverted that Custom did not directly solicit California residents or target appellant as a customer. Instead, appellant searched out Custom on the Internet, negotiated the contract by phone and e-mail, and flew to Miami to inspect and accept the fabricated surrounds. All the work was done in Florida. Custom did not "reach back" to California or have a continuing obligation to market appellant's products and pay appellant royalties. (Ibid.)
Traditional Notions of Fair Play
Appellant argues that it would be unfair to litigate the action in Florida due to distance, cost, and convenience factors. The argument assumes that Custom's business contacts in California are "substantial, continuous and systematic" or that there are sufficient minimum contacts to assert personal jurisdiction without offending traditional notions of fair play and substantial justice. (DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1090.)
Traditional notions of fair play and substantial justice point to Florida as the forum state. Custom agreed to fabricate chocolate fondue fountains for appellant. Custom's small Miami business had never solicited customers in California. The owner of Custom states that the cost of defending the lawsuit in California will ruin his business and that "[o]ther than Mr. Giles[,] the witnesses will be me, my employee, the shipping people I used here in Miami to package the surrounds, and personnel of another shipping company Mr. Giles sent to pick up some of the surrounds from me. If Mr. Giles wants to bring in the people he resold the surrounds to, many of them are not Califonians anyway. Mr. Giles gave me shipping instructions showing that his customers were in places like Maryland, Washington, Texas, Michigan, and even the Netherlands and Germany."
Appellant, on the other hand, is an international business. Prosecuting the action in Florida would not cause appellant undue hardship.
Appellant, in his opening brief, states that The Chocolate Guy is a small Santa Barbara business. We take judicial notice of appellant's web site, "The Chocolate Guy," located at www:thechocolateguy.com because it exemplifies web site "interactivity" within the meeting of Snowney, supra, 35 Cal.4th at pp. 1063-2064.) Appellant's web site touts The Chocolate Guy as an international business with 13,500,000 Internet "hits" as of June 4, 2005. The web site states: "The Chocolate Guy sells and rents chocolate fountains all over the world not just in the USA. We are proud to have over 300 million very satisfied customers worldwide."
Forum Non Conveniens
Appellant and respondent have requested that we consider whether the trial court erred in not ruling on Custom's alternative request to stay the action on forum non convenience grounds. (§ 418.10, subd. (a)(2).) The trial court correctly found that the stay request was mooted by the dismissal for lack of personal jurisdiction. Staying the Santa Barbara action would be an idle act if the trial court had no personal jurisdiction over Custom. Forum non-conveniences in an equitable doctrine which allows a court that has jurisdiction over the action "to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be appropriately and justly tried elsewhere." (Strangvik v. Shiley, Inc. (1991) 54 Cal.3d 744, 751.)
The judgment (order dismissing action) is affirmed. Custom is awarded costs on appeal.
We concur: GILBERT, P.J., COFFEE, J.