Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. No. CV061618
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
Jones, P. J.
It is ordered that the opinion filed herein on October 8, 2008, be modified as follows:
1. On page 7, third paragraph, add the following footnote after the citation to (Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100 (Antitrust Cases).) All subsequent footnotes are renumbered.
Antitrust Cases, supra, 135 Cal.App.4th 100 was authored by Timothy A. Reardon, Justice of the First District Court of Appeal, Division Four. This opinion is authored by Thomas M. Reardon, Judge of the Superior Court of Alameda County, temporarily assigned by the Chief Justice to the First District Court of Appeal, Division Five pursuant to article VI, section 6 of the California Constitution.
2. On pages 8 and 9, replace the entire second paragraph beginning “The plaintiff has the burden . . .” with the following three paragraphs:
The plaintiff has the burden of proving jurisdictional facts by a preponderance of the evidence. (Antitrust Cases, supra, 135 Cal.App.4th at p. 110.) “When the trial court rules after hearing conflicting evidence on a factual issue, we must uphold its factual determinations on appeal if substantial evidence supports them. When the facts are undisputed, the issue of jurisdiction becomes a pure question of law. [Citations.]” (Id. at p. 111.) Goldstein produced no evidence of the alleged conduct, whereas the Melick firm produced evidence that it did not commit the alleged acts. Because the trial court did not resolve conflicts in evidence, our review is de novo. We independently conclude the motion to quash was properly granted because Goldstein failed to meet her burden of proof.
Goldstein contends that the mere allegation of facts supporting specific jurisdiction suffices to carry her burden. In the cases she cites, however, the plaintiffs all produced evidence (their own declarations) to establish jurisdiction. (Schlussel v. Schlussel (1983) 141 Cal.App.3d 194, 196; Abbott Power Corp. v. Overhead Electric Co. (1976) 60 Cal.App.3d 272, 274-275, fn. 1; Quattrone v. Superior Court (1975) 44 Cal.App.3d 296, 299.) In Quattrone, the court expressly stated: “It is apparent from the matters set forth in the declarations filed in behalf of Plaintiff that an adequate factual basis has been shown for the trial court to determine that Defendant had done an act outside the State of California with the intention of causing an effect within this state.” (Id. at p. 304, italics added.) Antitrust Cases clearly holds that Goldstein’s burden was an evidentiary one. (Antitrust Cases, supra, 135 Cal.App.4th at p. 110.)
Even in the federal cases cited by Goldstein, the plaintiffs’ allegations were not necessarily sufficient alone to defeat a motion to dismiss for lack of personal jurisdiction. Rather, the plaintiff could defeat such a motion in the absence of an evidentiary hearing if, taking the uncontroverted allegations of the complaint as true and resolving conflicts in the evidence in the plaintiff’s favor, the plaintiff makes a prima facie showing of jurisdiction. (AT&T Co. v. Compagnie Bruxelles Lambert (9th Cir. 1996) 94 F.3d 586, 588-589; see also Doe v. Unocal Corp. (9th Cir. 2001) 248 F.3d 915, 922.) Here, Goldstein’s allegations were disputed and she failed to produce evidence in support of her allegations. Therefore, even if we were to follow the federal prima facie rule, we would affirm the trial court order granting the motion to quash.
3. On page 9, add the following sentence at the beginning of the first paragraph that begins, “The granting of a discovery request lies . . .”:
Goldstein also contends the trial court erred in denying her request for discovery on jurisdiction.
4. On page 15, second paragraph, replace the full citation to Kohli v. Trecom Business Systems, Inc. (N.D. Cal. 1998) 1998 U.S. Dist. Lexis 17163 with the following:
(Kohli v. Trecom Business Systems, Inc. (N.D. Cal. 1998) 1998 U.S. Dist. Lexis 17163, at pp. *4-*6; see Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1096, fn. 18 [citation of an unpublished federal court decision does not violate rule 8.1115]; rule 8.1115(a) [“an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court . . .”].)
The petition for rehearing filed by Jennifer Goldstein is denied.
These modifications do not change the appellate judgment.