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Harvest v. Superior Court of San Francisco County

Court of Appeals of California, First Appellate District, Division One.
Nov 14, 2003
No. A103635 (Cal. Ct. App. Nov. 14, 2003)

Opinion

A103635

11-14-2003

OREGONS WILD HARVEST, Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; AARON GANIR, Real Party in Interest.


Oregons Wild Harvest (OWH), an Oregon corporation, is one of several defendants in a case in which real party Ganir alleges that the wrongful death of his wife was caused by dietary supplements manufactured and distributed by OWH. By timely petition for writ of mandate (Code Civ. Proc., § 418.10, subd. (c)), OWH challenges an order of the San Francisco Superior Court denying its motion to quash service of summons (§ 418.10, subd. (a)(1)), and its companion motion to stay or dismiss the action on the ground of inconvenient forum. (§ 418.10, subd. (a)(2).)

Unless otherwise noted, further statutory references are to the Code of Civil Procedure.

The parties are familiar with the background of this case. We therefore need not reiterate it here. (People v. Garcia (2002) 97 Cal.App.4th 847.) Agreeing that the superior court should have granted the motion to quash service summons, we previously stayed proceedings against OWH, and issued our alternative writ. We explained that real party failed to carry the burden of establishing substantial, continuous, and systematic activities in California by OWH, and we afforded the superior court an opportunity to correct its error. It declined to do so. Accordingly, we now issue our peremptory writ.

In doing so, we need not and do not address OWHs contentions concerning denial of its motion to stay or dismiss on the ground of inconvenient forum.

Ganir first contends that OWH submitted itself to the jurisdiction in California when it made its motion to quash without making a special appearance. In doing so, real party ignores section 418.10, subdivision (e)(1) which provides that the making of a motion to quash does not constitute a general appearance.

On the merits of the jurisdictional question, real party Ganir contends that the evidence on the motion establishes OWHs extensive contacts with California. The record is otherwise. The evidence produced by OWH demonstrated that real partys wife purchased OWHs product in Oregon, used it there, and died there on January 27, 2002. The product itself was manufactured in Oregon. OWH is incorporated in Oregon. It does not maintain a place of business in California, is not registered to do business in California, owns no property in the state, and has no bank accounts in the state. It has no office or employees in California. OWHs sales in California were less than one half of one percent of its total volume at the time of decedents death. The sales occurred through an independent, nonexclusive broker. OWH has advertised in California on only four or five occasions through co-op ads, and on a limited basis through distributors fliers which are not provided to retail customers.

Real party Ganir responded with the declaration of his attorney reciting information obtained from an unauthenticated webpage, a copy of which was attached to counsels declaration. Counsel stated that OWH sold its products over the Internet, and sold over 190 products in more than 50 stores in California. Exhibits A and B to the declaration listed the names of stores, but did not list any products. The declaration in any event was hearsay. OWH made a timely hearsay objection to this evidence. (Evid. Code § 1200.)

Real party Ganir bore "the initial burden of demonstrating facts justifying the exercise of jurisdiction" (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449). Ganirs evidence was the subject of a proper hearsay objection, and absent that evidence, did not sustain his burden that OWH has engaged in substantial, continuous and systematic contacts with California.

Real party did not request a continuance to allow time to accomplish discovery on the jurisdictional issues, see Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710, and Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 911.

The superior court erred when it denied the motion to quash service of summons. (Fisher Governor Co. v. Superior Court (1959) 53 Cal.2d 222, 223-225.) Therefore, let a peremptory writ of mandate issue, commanding respondent, San Francisco County Superior Court, to vacate that portion of its order of August 1, 2003 denying the motion to quash service of summons of Oregons Wild Harvest, and to instead grant the motion to quash service of summons. The stay previously imposed shall remain in effect until issuance of the remittitur.

We concur: Stein, J., and Margulies, J.


Summaries of

Harvest v. Superior Court of San Francisco County

Court of Appeals of California, First Appellate District, Division One.
Nov 14, 2003
No. A103635 (Cal. Ct. App. Nov. 14, 2003)
Case details for

Harvest v. Superior Court of San Francisco County

Case Details

Full title:OREGONS WILD HARVEST, Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO…

Court:Court of Appeals of California, First Appellate District, Division One.

Date published: Nov 14, 2003

Citations

No. A103635 (Cal. Ct. App. Nov. 14, 2003)