Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C05-01941
McGuiness, P.J.
In this appeal, appellant Daljit Singh challenges an order quashing service of summons and complaint on respondent Go Plastics, Inc. (Go Plastics). Singh argues the evidence of Go Plastics’ activities related to California supports an exercise of specific jurisdiction or, in the alternative, the trial court should have afforded him an opportunity to seek discovery of jurisdictional facts. We affirm.
BACKGROUND
Singh, a California resident, was allegedly injured when an 800-pound plastic water barrier that he was unloading from a shipping container fell on him. On September 9, 2005, he filed a personal injury complaint against several defendants including Go Plastics, the Georgia corporation that manufactured the barrier. Singh alleged the defendants were negligent in packing, loading, storing, shipping and transporting the barrier, and in failing to inspect the load, and they failed to warn him of the dangerous condition created by the unstable load.
Go Plastics filed a motion to quash service of the summons and complaint for lack of personal jurisdiction. (Code Civ. Proc., § 418.10, subd. (a)(1).) The motion was opposed by both Singh and by codefendant Yodock Wall Company (Yodock), which had designed and purchased the barrier that allegedly injured Singh.
A declaration from Edward Gollob, chief executive officer of Go Plastics, established pertinent jurisdictional facts about the company. Go Plastics manufactures custom and proprietary rotationally molded polyethylene products at a facility in Canton, Georgia. It is not incorporated in California, has no office in California, owns no property in California, has no bank accounts in California, has no employees or agents (including an agent for service of process) in California, and does not advertise or solicit business in California. According to Gollob’s declaration, Go Plastics filled only one order from Yodock for plastic floating water barriers. Yodock provided the design for these barriers, and Guy Yodock traveled to Go Plastics’ Georgia plant and supervised the manufacture of the barriers according to Yodok’s design. Guy Yodock also directed and supervised the loading of the barriers into a shipping container. All subsequent shipping containers for this order were loaded in the same manner as initially directed by Guy Yodock. The finished barriers were owned by Yodock and were shipped free on board (FOB) from Canton, Georgia, with all shipping costs paid by Yodock. Go Plastics did not participate in the decision about where the barriers would be shipped and did not control their ultimate destination. Although it was told the barriers would be used for military purposes, Go Plastics did not know if the Military Ocean Terminal in Concord, California was their final destination.
Leo Yodock, president of Yodock, submitted a declaration opposing the motion to quash. Yodock designs and sells polyethylene security barriers for a variety of uses. Go Plastics began manufacturing the barrier products designed by Yodock in 1998, and between 1998 and 2004 Go Plastics manufactured approximately 80 percent of Yodock’s barrier products. Go Plastics typically shipped the Yodock products from its manufacturing facility in Georgia to the products’ final destination. On August 15, 2003, Yodock contracted with Go Plastics for the manufacture of 273 floating water barriers. Although the purchase order stated the destination of these barriers was “to be determined,” Leo Yodock declared they were intended for use by the United States Navy at the Naval Weapons Station in Concord, California. According to Mr. Yodock, Go Plastics was advised that the barriers “would be used for port security purposes.” Yodock paid Go Plastics $99,590.40 for manufacturing the 273 barriers. Including this August 2003 order, Go Plastics earned a total of approximately $168,000 for the manufacture of Yodock products that were shipped to California for use in California. Bills of lading indicated the water barriers were sent in 10 shipments from Go Plastics’ Canton, Georgia manufacturing facility to the “Military Ocean Terminal Concord (MOTCO)” in Concord, California. Mr. Yodock’s declaration stated that the shipments were loaded by Go Plastics employees and asserted “[i]t was Go Plastics’ responsibility to properly load and secure the cargo for transportation.” Mr. Yodock denied that his company provided any instruction, consultation or advice regarding Go Plastics’ loading of the trailer that was eventually opened by the plaintiff in November 2003.
The trial court granted the motion to quash after oral argument, concluding Go Plastics lacked sufficient minimum contacts with the state of California to support an exercise of specific jurisdiction. This appeal followed.
Although defendant Yodock also opposed the motion to quash, the appeal was brought by plaintiff Singh only.
DISCUSSION
California’s long-arm statute authorizes courts to exercise personal jurisdiction on any basis consistent with the Constitutions of California and the United States. (Code Civ. Proc., § 410.10.) The exercise of jurisdiction over a nonresident defendant satisfies constitutional requirements “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.” ’ (International Shoe Co. v. Washington (1945) 326 U.S. 310, 316 . . . .)” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444 (Vons).) An essential inquiry under the minimum contacts test “ ‘is 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.’ ” (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268 (Pavlovich), quoting Kulko v. California Superior Court (1978) 436 U.S. 84, 92.)
“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, supra, 14 Cal.4th at p. 445.) Singh does not contend Go Plastics had sufficient contacts to support general jurisdiction; therefore, we consider only whether the court could exert specific jurisdiction. “When determining whether specific jurisdiction exists, courts consider the ‘ “relationship among the defendant, the forum, and the litigation.” ’ (Helicopteros Nacionales de Colombia v. Hall (1984) 466 U.S. 408, 414 . . . [(Helicopteros)].) A court may exercise specific jurisdiction over a nonresident defendant only if: (1) ‘the defendant has purposefully availed himself or herself of forum benefits’ (Vons, supra, 14 Cal.4th at p. 446); (2) ‘the “controversy is related to or ‘arises out of’ [the] defendant’s contacts with the forum” ’ (ibid., quoting Helicopteros, supra, 466 U.S. at p. 414); and (3) ‘ “the assertion of personal jurisdiction would comport with ‘fair play and substantial justice’ ” ’ (Vons, supra, 14 Cal.4th at p. 447, quoting Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472-473 (Burger King)).” (Pavlovich, supra, 29 Cal.4th at p. 269.) “The crucial inquiry concerns the character of defendant’s activity in the forum, whether the cause of action arises out of or has a substantial connection with that activity, and upon the balancing of the convenience of the parties and the interests of the state in assuming jurisdiction. [Citations.]” (Cornelison v. Chaney (1976) 16 Cal.3d 143, 148.)
When faced with a motion to quash from a nonresident defendant, “the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. [Citation.]” (Vons, supra, 14 Cal.4th at p. 449.) If this burden is met by evidence of minimum contacts with the forum state, the burden shifts to the defendant to show that the exercise of jurisdiction would be unreasonable. (Ibid.; see also Burger King, supra, 471 U.S. at pp. 476-477.) In reviewing a ruling on a motion to quash, we will not disturb the trial court’s factual determinations if they are supported by substantial evidence. (Vons, supra, 14 Cal.4th at p. 449.) “When no conflict in the evidence exists, however, the question of jurisdiction is purely one of law and the reviewing court engages in an independent review of the record. [Citation.]” (Ibid.)
In the instant case, we conclude Singh failed to carry his initial burden because the evidence does not establish that Go Plastics “ ‘purposefully avail[ed] itself of the privilege of conducting activities within [California], thus invoking the benefits and protections of its laws.’ ” (Burger King, supra, 471 U.S. at p. 475, quoting Hanson v. Denckla (1958) 357 U.S. 235, 253.)
“ ‘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.] 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.” [Citations.]’ (Burger King, supra, 471 U.S. at p. 475.) ‘When a [defendant] “purposefully avails itself of the privilege of conducting activities within the forum State,” [citation], 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.’ (World-Wide Volkswagen Corp. v. Woodson (1980) 444 U.S. 286, 297 (World-Wide Volkswagen).)” (Pavlovich, supra, 29 Cal.4th at p. 269.)
No evidence indicates Go Plastics purposefully and voluntarily directed its activities toward California. Go Plastics manufactured the floating barriers in Georgia for a customer, Yodock, that is based in Florida. Notably, the California-based recipient of the barrier that injured Singh was a customer of Yodock, not Go Plastics, and no evidence suggests Go Plastics participated in any way in the decision to ship the barriers to California. Nevertheless, Singh argues Go Plastics had contacts with California because, as a result of the manufacturing contract, Go Plastics obtained a pecuniary benefit from Yodock’s California customer. In other words, because Go Plastics made a product that would ultimately be used to fill a need in California, Singh contends Go Plastics thereby availed itself of business opportunities in this state. As a factual matter, this argument falters because in the purchase order reflecting Go Plastics’ contract with Yodock, Yodock informed Go Plastics only that the shipping destination for the barriers was “to be determined.” As a legal matter, the argument sweeps too broadly because, absent other contacts with the state, mere foreseeability that a defendant’s product will enter California is not a sufficient basis for asserting jurisdiction. (World-Wide Volkswagen, supra, 444 U.S. at pp. 296-298; Felix v. Bomoro Kommanditgesellschaft (1987) 196 Cal.App.3d 106, 114-115 (Felix); Alexander v. Heater (1987) 193 Cal.App.3d 1241, 1245.)
Thus, unlike West Corp. v. Superior Court (2004) 116 Cal.App.4th 1167, 1176, which found a telemarketer’s “upsell” of a product to a California resident sufficient to satisfy the purposeful availment prong of specific jurisdiction, here there is no evidence Go Plastics solicited business from or contracted with any California resident.
Go Plastics’ only conduct related to California was the loading of its product into shipping containers bound for the Military Ocean Terminal in Concord. Given the nature of the product—in particular, the extraordinary weight of the barriers—Singh argues jurisdiction should be found because it was foreseeable injury would occur in California as a result of negligent loading of the shipment. However, the “foreseeability of causing injury in another State . . . is not a ‘sufficient benchmark’ for exercising personal jurisdiction. [Citation.]” (Burger King, supra, 471 U.S. at p. 474.) “Rather, ‘the foreseeability that is critical to due process analysis . . . is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ (World-Wide Volkswagen, supra, 444 U.S. at p. 297.) 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.]” (Pavlovich, supra, 29 Cal.4th at p. 272.)
Each barrier consisted of 60 pounds of foam and 588 pounds of concrete, surrounded by a 130-pound plastic shell.
In addition, Singh’s foreseeability argument is hampered by the trial court’s implied finding that Go Plastics did not know whether California was the final destination for the floating water barriers. We must adhere to this factual finding, which is supported by substantial evidence—namely, the declaration from Go Plastics’ chief executive officer that the company did not know whether the floating barriers would be used in California or sent outside California or outside the United States. (See Alexander v. Heater, supra, 193 Cal.App.3d at p. 1246 [trial court’s determination of disputed jurisdictional facts is reviewed for substantial evidence].) In any event, whether a defendant knows its products will somehow reach California is not determinative of the jurisdictional question. (Felix, supra, 196 Cal.App.3d at p. 117.) “The appropriate test is not knowledge or awareness of the ultimate destination of the product, but whether the manufacturer has purposefully engaged in forum activities so it can reasonably expect to be haled into court there, and, even then, the minimum requirements of ‘fair play and substantial justice’ may defeat jurisdiction.” (Ibid.) As in Felix, which involved injuries in California from a faulty car door latch assembly manufactured in West Germany, the contacts in this case are too tenuous to warrant the exercise of personal jurisdiction. (Id. at pp. 116-117; see also Alexander v. Heater, supra, 193 Cal.App.3d at p. 1246 [Oregon residents who installed malfunctioning lift gate lacked minimal contacts for jurisdiction even if they knew or could reasonably anticipate truck was destined for California]; Farris v. Capt. J. B. Fronapfel Co. (1986) 182 Cal.App.3d 982, 990 [Florida resident who performed allegedly fraudulent marine survey pursuant to contract with Florida broker lacked minimum contacts for jurisdiction even though survey was for the benefit of a California resident and surveyor knew the vessel would be taken to California].)
The court observed the bills of lading did not state that the shipments would be opened in California, and thus Go Plastics could not have known whether they would be distributed elsewhere upon arrival.
Beyond the particular shipment that caused injury in this case, Singh infers from statements in Leo Yodock’s declaration that Go Plastics previously shipped products to California destinations at Yodock’s request, and he urges us to consider such shipments as evidence of purposeful availment. The declaration stated only that, over the course of six years, Go Plastics had earned a total of approximately $168,000 for Yodock products sent to California for use in California. Because Go Plastics was paid $99,590.40 for the August 15, 2003 order of floating water barriers, one can deduce that the company had on another occasion (or occasions) shipped approximately $68,000 worth of product to Yodock customers in California. However, such a bare inference of prior contacts with the state is insufficient to satisfy due process. Yodock’s declaration supplied no details about prior shipments Go Plastics may have made into California—such as how many shipments were made, or when, or where—nor did the declaration state whether Go Plastics was apprised of the fact California was a final destination point. The scanty evidence presented to the trial court was thus very different from that in As You Sow v. Crawford Laboratories, Inc. (1996) 50 Cal.App.4th 1859, 1864-1865, 1868, in which limited jurisdiction was exerted over an Illinois paint company based on evidence the company had made 16 prior sales to California distributors and had earned over $6 million in the previous four years from sales to the General Services Administration for use in California. Indeed, Mr. Yodock did not expressly declare that any prior shipments from Go Plastics to California actually were made. Given the dearth of information about other shipments, we cannot rely on them to conclude Go Plastics had developed such a connection with California that it could “reasonably anticipate being haled into court [here].” (World-Wide Volkswagen, supra, 444 U.S. at p. 297.)
At the hearing on the motion to quash, both plaintiff’s counsel and counsel for Yodock told the court Go Plastics had been paid $168,000 for the floating water barriers at issue in this case. Neither attorney mentioned prior shipments to California.
To the extent Singh contends he should have been granted leave to conduct discovery on the issue of such prior shipments into California, we note that Yodock was presumably capable of describing its own prior orders. Although Yodock filed an opposition to the motion, it failed to elaborate on past orders.
Finally, Singh contends the trial court erred in denying him a continuance to conduct discovery. Specifically, Singh asserts he should have been allowed to seek discovery regarding shipments to California Go Plastics may have made at the request of other designers. Although a plaintiff is generally entitled to conduct discovery on a jurisdictional issue before the court grants a motion to quash, whether to permit such discovery lies within the trial court’s discretion, and such a ruling will not be disturbed in the absence of manifest abuse. (Thomson v. Anderson (2003) 113 Cal.App.4th 258, 271; Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 911.) In the trial court, Singh simply asked for a continuance to allow for “discovery on jurisdictional issues”; he did not identify what kind of discovery he wished to take or what jurisdictional facts he believed discovery would disclose. Given no details about the type of information Singh hoped to discover, or how this evidence would support jurisdiction, the trial court did not abuse its discretion in implicitly denying the requested continuance. The court could have reasonably concluded any such discovery would not lead to evidence supporting jurisdiction. (See Thomson v. Anderson, supra, 113 Cal.App.4th at pp. 271-272; Beckman v. Thompson (1992) 4 Cal.App.4th 481, 486-487.)
Because we conclude Singh did not establish the existence of minimum contacts with California, the burden did not shift to Go Plastics to show that the exercise of jurisdiction would be unreasonable. Accordingly, we need not consider the fairness factors outlined in Cornelison v. Chaney, supra, 16 Cal.3d at pp. 150-152. (See Carretti v. Italpast (2002) 101 Cal.App.4th 1236, 1254-1255 [fairness and forum non conveniens arguments do not apply absent a showing of minimum contacts].)
DISPOSITION
The order quashing service of summons and complaint on Go Plastics is affirmed. Singh shall bear costs on appeal.
We concur: Pollak, J. Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.